Title: Volume FOIA 070

Release Date: 2014-03-20

Text: 22361

Volume 70 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



17DCGS-A Version 3.1 P3
Basic Analyst Laptop - Collateral

3.7 COTS Software Sites

0 3D analyst (ArcGlobe)

DCN: 149015, Rev1

1 October 2009



Acrobat Reader




- Analyst Notebook



- Java

0 httQ:IIiava.sun.comI

- Microsoft



Netscape



Roxio

httQ:IIroxio.com

Symantec



Winzip

0

-



3.8 Hardware Description
The following is a list of DCGS-A V3.1 P3 BALs hardware information:

Alienware Laptop - Model
A51M

3.8 2GB RAM memory, 17" display with high resolution
graphics.

Dell Laptop - Model M90

2.33 Intel Dual Processor Core, 3.25GB RAM memory,
93.1 GB hard drive, with NVIDIA graphics card. DCD-RW
Optical Drive, Network Interface Card and a 17 inch display
with high resolution graphics.

Laptop - Model Dell M6300

2.5 Intel Core 2 Duo T9300, 4GB DDR2-667 SDRAM (2
DIMM), NVIDIA Quadro FX360OM 512 MB, 160 GB 7200RPM
Hard Drive, Touchpad. 8x 8: Roxio Creator, and
a 17" wide screen WUXGA LCD.

Dell Precision 490 Workstation

1st Processor: Intel XEON DUAL CORE Processor
2MB L2 Cache; 2nd Processor: Intel XEON DUAL CORE
Processor 2.80GHZ, 2MB L2 Cache; 4GB, DDR2 ECC
SDRAM Memory, NVIDIA FX 4500 512MB 2 DUI OR
GA 1st Hard Drive: 80GB Serial ATA 7200RPM Hard
Drive wIDataburst Cache, Non-Raid, Precision 470/670; 2nd
Hard Drive: 80GB Serial ATA 7200RPM Hard Drive with

UNCLASSIFIEDIIFOUO 10

22362



17DCGS-A Version 3.1 P3
Basic Analyst Laptop - Collateral

Databurst Cache Raid; Floppy Drive: 3.5, 48XI32X

22363

DCN: 149015, Rev 1

1 October 2009

CD-RWIDVD Combo.

Dell Precision T5400 Desk
Top

1st Processor: Quad Core Xeon Proc X5450, 2X
6MB L2 Cache,1333MHz; 2nd Processor: Quad Core Xeon
Proc X5450, L2 Cache,1333MHz, 4GB,
DDR2 ECC SDRAM Memory NVIDIA
Quadro FX3700 512MB dual DVI Graphics Card; 160GB
SATA, 10K RPM Hard Drive with 16MB DataBurst Cache;
CD-ROM or DVD-ROM Drive: 16X



22364

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 Motion
for Maximum Punishments for
Lesser Included Offenses
22 June 2012

RELIEF SOUGHT

The prosecution respectfully requests that the Court adopt the following maximum
punishments for the stated lesser-included offenses:
(1) for Attempt of the 18 U.S.C. § 793(e) offenses (i.e., Specifications 2, 3, 5, 7, 9, 10,
11, and 15 of Charge II), to be dishonorably discharged from the service, to be confined for ten
years, to forfeit all pay and allowances, to be reduced to Private, E-1, and to be fined;
(2) for Attempt of the 18 U.S.C. § 641 offenses (i.e., Specifications 4, 6, 8, 12, and 16 of
Charge II), to be dishonorably discharged from the service, to be confined for ten years, to forfeit
all pay and allowances, to be reduced to Private, E-1, and to be fined;
(3) for Attempt of the 18 U.S.C. § 1030(a)(1) offenses (i.e., Specifications 13 and 14 of
Charge II), to be dishonorably discharged from the service, to be confined for ten years, to forfeit
all pay and allowances, to be reduced to Private, E-1, and to be fined;
(4) for Property of a Value Less Than $1,000 for the 18 U.S.C. § 641 offenses (i.e.,
Specifications 4, 6, 8, 12, and 16 of Charge II), to be dishonorably discharged from the service,
to be confined for one year, to forfeit all pay and allowances, to be reduced to Private, E-1, and
to be fined; and
(5) for Clauses 1 and 2 of Article 134, Uniform Code of Military Justice (UCMJ), for the
18 U.S.C. § 1030(a)(1) offenses (i.e., Specifications 13 and 14 of Charge II), to be dishonorably
discharged from the service, to be confined for ten years, to forfeit all pay and allowances, to be
reduced to Private, E-1, and to be fined.

BURDEN OF PERSUASION AND BURDEN OF PROOF

The burden of proof on any factual issue the resolution of which is necessary to decide a
motion shall be by preponderance of the evidence. See Manual for Courts-Martial (MCM),
United States, Rule for Courts-Martial (RCM) 905(c)(l) (2012). The burden of persuasion on
any factual issue the resolution of which is necessary to decide a motion shall be on the moving
party. See RCM 905(c)(2).

1

22365

FACTS

On 8 June 2012, the Court ordered that it will instruct on attempt as a lesser-included
offense (LIO) if raised by the evidence for Specifications 2-16 of Charge II. See Appellate
Exhibit CXXXXIII, at 6.
On 8 June 2012, the Court ordered that it will instruct on property of a value less than
$1,000 as an LIO for Specifications 4, 6, 8, 12, and 16 of Charge II. See id.
On 8 June 2012, the Court ordered that it will instruct on clauses 1 and 2 of Article 134,
UCMJ, as an LIO for Specifications 13 and 14 of Charge II. See id.
The language of 18 U.S.C. § 793(d) reads as follows:
Whoever, lawfully having possession of, access to, control over, or
being entrusted with any document, writing, code book, signal
book, sketch, photograph, photographic negative, blueprint, plan,
map, model, instrument, appliance, or note relating to the national
defense, or information relating to the national defense which
information the possessor has reason to believe could be used to
the injury of the United States or to the advantage of any foreign
nation, willfully communicates, delivers, transmits or causes to be
communicated, delivered, or transmitted or attempts to
communicate, deliver, transmit or cause to be communicated,
delivered or transmitted the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it on
demand to the officer or employee of the United States entitled to
receive it[.]
18 U.S.C. § 793(d) (1996).
The language of 18 U.S.C. 1030(a)(l) reads as follows:
Whoever having knowingly accessed a computer without
authorization or exceeding authorized access, and by means of
such conduct having obtained information that has been
determined by the United States Government pursuant to an
Executive order or statute to require protection against
unauthorized disclosure for reasons of national defense or foreign
relations, or any restricted data, as defined in paragraph y. of
section 11 of the Atomic Energy Act of 1954, with reason to
believe that such information so obtained could be used to the
injury of the United States, or to the advantage of any foreign
nation willfully communicates, delivers, transmits, or causes to be
communicated, delivered, or transmitted, or attempts to
communicate, deliver, transmit or cause to be communicated,
2

22366

delivered, or transmitted the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it to the
officer or employee of the United States entitled to receive it[.]
18 U.S.C. § 1030(a)(l) (2008).

WITNESSES/EVIDENCE

The prosecution does not request any witnesses or evidence be produced for this motion.
The prosecution requests that the Court consider the Appellate Exhibits referenced herein.

LEGAL AUTHORITY AND ARGUMENT

The "maximum limits for the authorized punishments of confinement, forfeitures and
punitive discharge (if any) are set forth for each offense listed in Part IV of [the MCM]." RCM
1003(c)(l)(A)(i). The rule continues that "[f]or an offense not listed in Part IV of [the MCM]
which is included in or closely related to an offense listed therein the maximum punishment shall
be that of the offense listed[.]" RCM 1003(c)(1)(B)(i). However, for "[a]n offense not listed in
Part IV and not included in or closely related to any offense listed therein[,]" that offense "is
punishable as authorized by the United States Code, or as authorized by the custom of the
service." RCM 1003(c)(1)(B)(ii) (stating that "[w]hen the United States Code provides for
confinement for a specified period or not more than a specified period the maximum punishment
by court-martial shall include confinement for that period"). The rule concludes that "[i]f the
period is 1 year or longer, the maximum punishment by court-martial also includes a
dishonorable discharge and forfeiture of all pay and allowances[.]" RCM 1003(c)(l)(B)(ii).
I:

THE MAXIMUM PUNISHMENT FOR THE LIO OF ATTEMPT IS THE
SAME AS THE MAXIMUM PUNISHMENT FOR THE OFFENSE
ATTEMPTED.

The MCM states as follows:
Any person subject to the code who is found guilty of an attempt
under Article 80 to commit any offense punishable by the code
shall be subject to the same maximum punishment authorized for
the commission of the offense attempted, except that in no case
shall the death penalty be adjudged, nor shall any mandatory
minimum punishment provisions apply; and in no case, other than
attempted murder, shall confinement exceeding 20 years be
adjudged.
MCM, Part IV,�[ 4.e. Accordingly, the maximum punishment for the LIO of attempt equates to
the maximum punishment for the offense attempted.

3

22367

The maximum punishment for Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II in
violation of 18 U.S.C. § 793(e) is a fine and/or imprisonment of ten years. See 18 U.S.C. §
793(e) (whoever violates this provision "shall be fined under this title or imprisoned not more
than ten years, or both"); see also U.S. Dep't of Army, Pam. 27-9, Military Judges' Benchbook
(1 January 2010) (3-60-2B(a)) (Benchbook) (the maximum punishment is "based on the federal
statute allegedly violated"). Thus, the maximum punishment for the LIO of attempt of
Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II is to be dishonorably discharged from the
service, to be confined for ten years, to forfeit all pay and allowances, to be reduced to Private,
E-1, and to be fined. See RCM 1003(c)( l )(B)(ii) (stating that "[i]f the period is 1 year or longer,
the maximum punishment by court-martial also includes a dishonorable discharge and forfeiture
of all pay and allowances").
The maximum punishment for Specifications 4, 6, 8, 12, and 16 of Charge II in violation
of 18 U.S.C. § 641 is a fine and/or imprisonment of ten years. See 18 U.S.C. § 641 (whoever
violates this provision "shall be fined under this title or imprisoned not more than ten years, or
both"). Thus, the maximum punishment for the LIO of attempt of Specifications 4, 6, 8, 12, and
16 of Charge II in violation of 18 U.S.C. § 641 is to be dishonorably discharged from the service,
to be confined for ten years, to forfeit all pay and allowances, to be reduced to Private, E-1, and
to be fined. See RCM 1003(c)(l)(B)(ii), supra.
The maximum punishment for Specifications 13 and 14 of Charge II in violation of 18
U.S.C. § 1030(a)(1) is a fine and/or imprisonment of ten years. See 18 U.S.C. § 1030(c)(1)(A)
(the appropriate punishment is "a fine under this title or imprisonment for not more than ten
years, or both, in the case of an offense under subsection (a)(l ) of this section which does not
occur after a conviction for another offense under this section, or an attempt to commit an
offense punishable under this subparagraph"). Thus, the maximum punishment for the LIO of
attempt of Specifications 13 and 14 of Charge II in violation of 18 U.S.C. § 1030(a)(1) is to be
dishonorably discharged from the service, to be confined for ten years, to forfeit all pay and
allowances, to be reduced to Private, E-1, and to be fined. See RCM 1003(c)(1)(B)(ii), supra.
II: THE MAXIMUM PUNISHMENT FOR THE LIO OF PROPERTY OF A
VALUE LESS THAN $1,000 FOR THE 18 U.S.C. § 641 OFFENSES IS ONE
YEAR.
The LIO of Property of a Value Less Than $1,000 is neither listed, nor included in or
closely related to an offense listed, in the MCM. See RCM 1003(c)(l )(A)(i); see also RCM
1003(c)( l )(B)(i); see also United States v. Leonard, 64 M.J. 381, 383 (C.A.A.F. 2007)
(observing "that the 'closely related' language in RCM 1003(c)(l )(B)(ii) refers to offenses that
are closely related to offenses listed in the MCM"). 1 Thus, the LIO "is punishable as authorized
by the United States Code[.]" RCM 1003(c)( l )(B)(ii); see also Benchbook (3-60-2B(a)) (the

1

121, UCMJ, a punitive article that criminalizes larceny of
(3-46-1, n. 19); see also United
States v. Mervine, 26 M.J. 482 (C.M.A. 1988). Thus, Article 121, UCMJ, does not criminalize the conduct
underlying the LIO of Property of a Value Less Than $1000 and, thus, is not closely related. See United States v.
Tenney, 60 M.J. 838, 843 (N-M. Ct. Crim. App. 2005) (where the accused's misconduct does not violate the alleged
The LIO is not included in, or closely related to, Article

only tangible items having corporeal existence and not intangibles. See Benchbook

punitive article, that article is not a closely related offense).

4

22368

maximum punishment is "based on the federal statute allegedly violated"). The maximum
punishment for a violation of 18 U.S.C. § 641 of property of a value less than $1,000 is a fine
and/or imprisonment of one year. See 18 U.S.C. § 641 ("if the value of such property in the
aggregate ... does not exceed the sum of $1,000, he shall be fined under this title or imprisoned
not more than one year, or both"). Thus, the maximum punishment for the LIO of property of a
value less than $1,000 for Specifications 4, 6, 8, 12, and 16 of Charge II is to be dishonorably
discharged from the service, to be confined for one year, to forfeit all pay and allowances, to be
reduced to Private, E-1, and to be fined. See RCM 1003(c)(1)(B)(ii), supra.
III: THE MAXIMUM PUNISHMENT FOR THE LIO OF CLAUSES 1 AND 2 OF
ARTICLE 134, UCMJ, FOR THE 18 U.S.C. § 1030(a)(l) OFFENSES IS TEN
YEARS.
The LIO of Clauses 1 and 2 of Article 134, UCMJ, for the 18 U.S.C. § 1030(a)(l)
offenses is neither listed, nor included in or closely related to an offense listed, in the MCM. See
RCM 1003(c)(1)(A)(i); see also RCM 1003(c)(1)(B)(i). Thus, the LIO "is punishable as
authorized by the United States Code[.]" RCM 1003(c)(l)(B)(ii) (stating that "[w]hen the
United States Code provides for confinement for a specified period or not more than a specified
period the maximum punishment by court-martial shall include confinement for that period").
The LIO of Clauses 1 and 2 of Article 134, UCMJ, includes the conduct and mens rea proscribed
by a directly analogous federal criminal statute, specifically 18 U.S.C. § 793(d) or 18 U.S.C. §
1030(a)(1). See Leonard, 64 M.J. at 385. Accordingly, the Court should reference the maximum
punishment under 18 U.S.C. § 793(d) and 18 U.S.C. § 1030(a)(1).
The elements of the LIO of Clauses 1 and 2 of Article 134, UCMJ, are as follows: (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 and of a
nature to bring discredit upon the armed forces. See UCMJ art. 134 (2012). The language of 18
U.S.C. § 793(d) and 18 U.S.C. § 1030(a)(l) is listed above. See supra, at 2-3.
The Court of Appeals for the Armed Forces (CAAF) in Leonard is instructive on this
matter. In Leonard, the appellant was convicted of wrongfully and knowingly receiving visual
depictions of minors engaging in sexually explicit conduct in violation of clauses 1 and 2 of
Article 134, UCMJ. The issue was whether the maximum punishment for the offense "may be
determined by reference to the maximum punishment for violation of a federal statute that
proscribes and criminalizes the same criminal conduct and mens rea included in the
specification." Id., at 381. The CAAF answered in the affirmative, finding that the criminal
conduct and mens rea set forth in the specification described the gravamen of the offense
proscribed by the analogous federal statute, 18 U.S.C. § 2252(a)(1), for which the maximum
sentence was fifteen years. The CAAF did not find error in the trial court' s reference to the
maximum sentence for this federal statute. See id., at 384 (focusing "on whether the offense as
charged [was] 'essentially the same,' as that proscribed by the federal statute").
Like in Leonard, the LIO of Clauses 1 and 2 of Article 134, UCMJ, for Specifications 13
and 14 of Charge II includes the conduct and mens rea proscribed by an analogous federal
statute; namely, either 18 U.S.C. § 793(d) (i.e., the willful communication of information relating
5

22369

to the national defense to a person not entitled to receive it with reason to believe that
information could be used to the injury of the United States or to the advantage of any foreign
nation) or 18 U.S.C. § 1030(a)(1) (i.e., having knowingly exceeding authorized access, and by
means of such conduct having obtained information that requires protection against unauthorized
disclosure for reasons for national defense or foreign relations, willfully communicate such
information to a person not entitled to receive it with reason to believe such information could be
used to the injury of the United States or the advantage of any foreign nation). Accordingly, the
Court should reference the maximum punishment under 18 U.S.C. § 793(d) and 18 U.S.C. §
1030(a)( l ).
The maximum punishment for a violation of 18 U.S.C. § 793(d) and 18 U.S.C. §
1030(a)(1) is a fine and/or imprisonment of ten years. See 18 U.S.C. § 793(d) (whoever violates
this provision "shall be fined under this title or imprisoned not more than ten years, or both"); see
also 18 U.S.C. § 1030(c)(1)(A) (the appropriate punishment is "a fine under this title or
imprisonment for not more than ten years, or both, in the case of an offense under subsection
(a)(1) of this section which does not occur after a conviction for another offense under this
section, or an attempt to commit an offense punishable under this subparagraph"). Thus, the
maximum punishment for Clauses 1 and 2 of Article 134, UCMJ, the LIO of Specifications 13
and 14 of Charge II, is to be dishonorably discharged from the service, to be confined for ten
years, to forfeit all pay and allowances, to be reduced to Private, E-1, and to be fined. See RCM
1003(c)(1)(B)(ii), supra.

CONCLUSION

The prosecution respectfully requests that the Court adopt the following maximum
punishments for the stated lesser-included offenses:
(1) for Attempt of the 18 U.S.C. § 793(e) offenses (i.e., Specifications 2, 3, 5, 7, 9, 10,
11, and 15 of Charge II), to be dishonorably discharged from the service, to be confined for ten
years, to forfeit all pay and allowances, to be reduced to Private, E-1, and to be fined;
(2) for Attempt of the 18 U.S.C. § 641 offenses (i.e., Specifications 4, 6, 8, 12, and 16 of
Charge II), to be dishonorably discharged from the service, to be confined for ten years, to forfeit
all pay and allowances, to be reduced to Private, E-1, and to be fined;
(3) for Attempt of the 18 U.S.C. § 1030(a)(1) offenses (i.e., Specifications 13 and 14 of
Charge II), to be dishonorably discharged from the service, to be confined for ten years, to forfeit
all pay and allowances, to be reduced to Private, E-1, and to be fined;
(4) for Property of a Value Less Than $1,000 for the 18 U.S.C. § 641 offenses (i.e.,
Specifications 4, 6, 8, 12, and 16 of Charge II), to be dishonorably discharged from the service,
to be confined for one year, to forfeit all pay and allowances, to be reduced to Private, E-1, and
to be fined; and

6

22370

(5) for Clauses 1 and 2 of Article 134, Uniform Code of Military Justice (UCMJ), for the
18 U.S.C. § 1030(a)(1) offenses (i.e., Specifications 13 and 14 of Charge II), to be dishonorably
discharged from the service, to be confined for ten years, to forfeit all pay and allowances, to be
reduced to Private, E-1, and to be fined.

J. HUNTER WHYTE
CPT, JA
Assistant 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 22 June 2012.

��

E WHYTE
CPT, JA
Assistant Trial Counsel

7

UNITED STATES OF AMERICA

Manning, Bradley E.

PFC, U.S. Army,

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

22371

FOR OFFICIAL USE BUT UNCLASSIFIED

v. Prosecution Witness List

22 June 2012



The prosecution may call the following witnesses to testify on the merits at trial and/or

during the presentencing phase' of the above-captioned court martial:

1.

t0

CDR Youssef Aboul?Enein, Defense Intelligence Agency, Bolling AFB, MD 20032,


SFC Paul Adkins, l0th Mountain Division (LI), Fort Drum, NY 13602,?

Drum NY 13603,?

Office of Personnel Management, Boyers, PA 16016,-
2

SA Charles Ames, Europe Branch Office - Computer Crime Investigative Unit, Funari

Barracks, APO AE 09008,?
SPC Mary Amiatu, Camp Arifjan, Kuwait, APO AE 09306,

Co., 57th Signal Battalion, Fort Hood, TX 76544


(Deployed to Afghanistan),

HHC, National Ground Intelligence Center (NGIC), Charlottesville, VA
2291 Lj

Mr. Peter Artale, 902d Ml Group, Fort Meade, MD 20755,
SPC Eric Baker, Fort Drum, NY 13602,

SPC Kimberly Bales, HHC, 2BCT, l0th Mountain Division (LI), Fort Drum, NY l3602,


Kyle Balonek, HHC, HI-IBN, l0th Mountain Division (LI), Fort Drum, NY l3602,

I As of the date of this ?ling, persons identi?ed with an asterisk are witnesses only for purposes of the
presentencing phase.

1
FOR OFFICIAL USE BUT UNCLASSIFIED

I3.

15.

16.

I7.

18.

I9.

20.

30.

22372

FOR OFFICIAL USE BUT UNCLASSIFIED

US Army Intelligence Center and Center of Excellence, Fort


Huachuca, AZ 85613,

Mr. Joseph Benthal, Watertown, NY 13601,
SA Troy Bettencourt, Department of Treasury, Washington, DC 20220,

SSG Peter Bigelow, US Army NATO, Allied Forces Command South, Naples, Italy,
FPO AB 09620?

Mr. Wyatt Bora, Air Force Research Laboratory, Rome, NY 13440,
SA John Bowen, 3rd MP Group (CID), Fort Eustis, VA 23604,
Mr. Steve Buchanan, Intelink, Fort Meade, MD 20755, (410) 854-9500

AMB Patricia Butenis, U.S. Ambassador to Sri Lanka Duty Station: U.S. Embassy, Sri
Lanka, Department of State, Washington DC 20520, POC: Mr. John Blanck,

BG (Rct.) Robert Carr, Defense Intelligence Agency, Bolling AFB, MD 20032, -
(5)

Mr. Sean Chamberlin, 902d MI Group, Fort Meade, MD 20755,
CPT Thomas Cherepko, NATO Force Command, Madrid, Spain 28223,

SA Charles Clapper, Arizona Branch Office - Computer Crime Investigative Unit, Fort

Huachuca, AZ 8561

SGT Lorena Cooley, I-IHC, 2BCT, 10th Mountain Division (LI), Fort Drum, NY 13602,

Ms. Elizabeth Dibble, Principal Deputy Assistant Secretary, Bureau of Near Eastern
Affairs, Department of State, Washington DC 20520, POC: Mr. John Blanck,

Mr. Vann Van Diepen, Deputy Assistant Secretary, Bureau of International Security
and Nonproliferation, Department of State, Washington DC 20520, POC: Mr. John

Blanck,

Mr. Jim Downey, Defense Information Systems Agency, Fort Meade, MD 20755, -
(5)

2
FOR OFFICIAL USE BUT UNCLASSIFIED

DJ


O)
DJ

45.

46.

47.

48.

49.

22373

FOR OFFICIAL USE BUT UNCLASSIFIED

SA Antonio Edwards, Homeland Security Investigations, National Security Unit, Atlanta,

GA 30301?

CW2 Joshua Ehresman, HSC, HHBN, 2d ID, Camp Red Cloud, Korea, APO AP 96258,

SA Kirk Ellis, Rock Island Fraud Resident Agency, Major Procurement Fraud Unit,

Moline. IL 61265,

Mr. John Feeley, Acting Principal Deputy Assistant Secretary, Bureau of Western
Hemisphere Affairs, Department of State, Washington DC 20520, POC: Mr. John

Blanck,


CPT Matthew Freeburg, Fort Sill, OK 73503,

CPT Casey Fulton, 2BCT, 10th Mountain Division (LI), Fort Drum, NY 13602, I
(5)

Mr. James Fung, Brookhaven National Laboratory, Upton, NY 11973,-

Ms. Shelia Glenn, Fort Meade, MD 20755,

1
SA Toni Graham, Hawaii CID Office, 1314 Lyman Road, Building 3026, Schofield

Barracks, HI 96857,
Mr. Jacob Grant, US Central Command, MacDill AFB, FL 33621,

VADM Robert Harward, US Central Command, MacDill AFB, FL 33621, POC: COL

Bruce Pagel, Acting SJA a

Ms. Jacqueline Haylock, Defense Military Pay Office, Fort, Myer, VA 2221 I, -
2 (5)
Mr. Patrick Hoeffel, Intelligent Software Solutions, Inc., 2001 Jefferson Davis Hwy,
Suite 909, Arlington, VA 22202,

Mr. Matthew Hosburgh, Westminster, CO 8002],

LT (US Navy) Thomas Hoskins, US Central Command, MacDill AFB, FL 33621, 2

3
FOR OFFICIAL USE BUT UNCLASSIFIED

U1


54.

60.



62.

22374

FOR OFFICIAL USE BUT UNCLASSIFIED

Ms. Elisa K. (Rubin) Ivory, S2 OIC, 305th Ml Battalion, US Army Intelligence Center
and Center of Excellence, Fort Huachuca, AZ 856l3,?

Mr. Albert J. Janek, Management Officer, Duty Station: U.S. Embassy, Minsk, POC:

Mr. John Blanck,

Mr. Glen Johnson, Director, Messaging Systems Office, Bureau of Information Resource
Management, Department of State, Washington DC 20520, POC: Mr. John Blanck,

SA Mark Johnson, Washington Metro Resident Agency, Computer Crime Investigative

Unit, Quantico, VA 22134,-

AMB Tina Kaidanow, Principal Deputy Assistant Secretary, Bureau of European Affairs,
Department of State, Washington DC 20520, POC: Mr. John Blanck,

AMB Patrick F. Kennedy, Under Secretary for Management, Department of State,
Washington DC 20520, POC: Mr. John Blanck,

Mr. John Kirchoffer, Chief of Enterprise Strategies, Office of Counterintelligence (CI)
Human Intelligence (HUMINT) Enterprise Management, Defense Counterintelligence
and Human Intelligence Center, Defense Intelligence Agency, Bolling AFB, MD 20032,

AMB Michael Kozak, Senior Adviser, Bureau of Democracy, Rights and Labor,
Department of State, Washington DC 20520, POC: Mr. John Blanck,-

Mr. Adrian Lamo, Carmichael, CA 95608,
CW5 Jon Larue, Pentagon, DC 20310,

Mr. Danny J. Lewis, Defense Intelligence Agency, Bolling AFB, MD 20032,

Mr. Scott Liard, Chief, Counterintelligence (CI) Enterprise Management Division,
Defense Counterintelligence and Human Intelligence Center, Defense Intelligence

Agency, Bolling AFB, MD 20032,?

4
FOR OFFICIAL USE BUT UNCLASSIFIED

66.

67.

68.

69.

70.

71.

76.
77.

78.

79.

80.

81.

82.

83.

84.

22375

FOR OFFICIAL USE BUT UNCLASSIFIED

CPT Steven Lim, I-IQ, Army Division?East, Fort Meade, MD 20755,?

SGT Chad Madaras, Co. (B Co), 2nd Brigade Special Troops Battalion (2 BSTB), 2nd
Brigade Combat Team (2 BCT). 10th Mountain Division (LI), Fort Drum. NY 13602,


Mr. Brian Madrid, Buckeye, AZ 85326,

Ms. Tamara Mairena, Washington Metro Resident Agency, Computer Crime
Investigative Unit, Quantico, VA 22134,

LTC Stanley Malloy, US Army Cyber Command, Fort Belvoir, VA 22060, -
?1
SA Mark Mandcr, Washington Metro Resident Agency, Computer Crime Investigative

Unit, Quantico, VA 22134,
SGT Alejandro Marin, 800th MP Brigade, Uniondale, NY I 1553,-

Mr. James McCarl, Chief, Mission lntergration Division, Joint IED Defeat
Organization (JIEDDO), Army Pentagon, Washington DC 20310,

Mr. Vince McCarron, HQDA G-2, Washington, DC 20310,

Mr. James McManus, Brookhaven National Laboratory, Upton, NY I 1973,
I

COL David Miller, BDE Moderni7ation Command, Fort Bliss, TX,
Mr. Jason Milliman, Palmyra, VA 22963,-

Mr. James Moore, Deputy Assistant Secretary, Bureau of South and Central Asian
Affairs, Department of State, Washington DC 20520, POC: Mr. John Blanck,_-

-

Mr. Ken Moser, US Central Command, MacDill AFB, FL 33621,

Mr. Jeffery Motes, JTF GTMO, Guantanamo Bay, Cuba,-

Mr. Troy Moul, US Army Intelligence Center and Center of Excellence, Fort Huachuca,

A2 85613.j

5
FOR OFFICIAL USE BUT UNCLASSIFIED

86.

87.

88.

89.

90.

94.

95.

96.

97.

98.

99.

100.

101.

22376

FOR OFFICIAL USE BUT UNCLASSIFIED

Mr. Kin Moy, Deputy Assistant Secretary, Bureau of East Asian and Paci?c Affairs,
Department of State, Washington DC 20520, POC: Mr. John Blanck,

Mr. Jonathan Muldoon, DISA, Pensacola, FL 32508?

AMB Stephen Mull, Executive Secretary, Department of State, Washington DC 20520,
POC: Mr. John Blanck,?

Mr. Nicholas Murphy, Reviewer, Office of Global Information Services, Bureau of
Administration, Department of State, Washington DC 20520, POC: Mr. John Blanck,

Lt Col (R) Martin Nehring, US Central Command, MacDill AFB, FL 33621,-

SGT Daniel Padgett, Fort Leavenworth, KS 66027,

AMB David Pearce, Deputy Special Representative for Afghanistan and Pakistan,
Department of State, Washington DC 20520, POC: Mr. John Blanck,

Mr. H. Dean Pittman, Principal Deputy Assistant Secretary, Bureau of International
Organization Affairs, Department of State, Washington DC 20520, POC: Mr. John

Blanckj
Lt Col Robert Pope, US Central Command, MacDill AFB, FL 33621,



SA Calder Robertson, Europe Branch Office - Computer Crime Investigative Unit,

Funari Barracks, APO AE 09008,?

LTC Rodney Roberts, US Central Command, MacDill AFB, FL 33621,

SA Ronald Rock, Diplomatic Security Service, Department of State, Washington DC
20520, POC: Mr. John Blanck,

CW4 Armond Rouillard, G33, US Army Network Enterprise Technology Command,

Fort Belvoir, VA 22060,
SGT David Sadtler, 709th Ml BN, Harrogate, UK, APO AE 09468,?

6
FOR OFFICIAL USE BUT UNCLASSIFIED

22377

FOR OFFICIAL USE BUT UNCLASSIFIED

I02. Mr. Doug Schasteen, Wilco Technologies, lnc., 4125 Broadway, Suite 200, Kansas City,
Mo wlo?jgu

I03. Ms. Jacqueline Scott, US Central Command, MacDill AFB, FL 33621

104. AMB Stephen Seche, Deputy Assistant Secretary, Bureau of Near Eastern Affairs,
Department of State. Washington DC 20520, POC: Mr. John Blanck,_

I05. SAC David Shaver, Washington Metro Resident Agency, Computer Crime Investigative

Unit, Quantieo, VA 22134,-
IO6. Ms. Jihrleah Showman, Hope Mills, NC 28348,

107. SA Thomas Smith, USACIDC, Fort Gordon, GA 30905

I08.
I09.

110.

Ill.

1 l2. Ms. Strobl, Central Intelligence Agency, McLean, VA 22101, POC: Mr. Brian



1 I3. Ms. Susan Swart, Chief Information Officer, Bureau of Information Resource
Management, Department ofState, Washington DC 20520, POC: Mr. John Blanek,

1 14. Ms. Tasha Thian, Agency Records Officer, Office of Global Information Services,
Bureau of Administration, Department of State, Washington DC 20520, POC: Mr. John

Blanch

I I5. SSG Robert Thomas, HHT, Support Squadron, 3d ACR, Fort Hood,

I 16. Mr. Louis Travieso, US Central Command, MacDill AFB, FL 3362l,?

I17.

1 I8. Ms. Shari Villarosa, Deputy Coordinator for Regional Affairs, Bureau of Counter
Terrorism, Department of State, Washington DC 20520, POC: Mr. John Blanck, -

7
FOR OFFICIAL USE BUT UNCLASSIFIED

22378

FOR OFFICIAL USE BUT UNCLASSIFIED

1


120. Mr. Greg Weaver, Compliance Branch Chief, US Army Cyber Command, Fort Belvoir,



121. Ms. Florinda White, CERDEC Software Engineering Directorate, Aberdeen Proving

Ground, MD 2l005,?
I22. SA John Wilbur, Department of Treasury, Washington, DC 20220,

123. SA Alfred Williamson, Washington Metro Resident Agency, Computer Crime
Investigative Unit, Quantico, VA 22134,?

124. Mr. Charlie Wisecarver, Office of Global Information Services, Bureau of
Administration, Department of State, Washington DC 20520, POC: Mr. John Blanck,


125. Mr. Alex Withers, Brookhaven National Laboratory, Upton, NY 1 1973,

126. RDML David Woods, Commander, Guantanamo Bay, Cuba, POC: CDR T.

Welsh,

127. AMB Don Yamamoto, Principal Deputy Assistant Secretary, Bureau of African Affairs,
Department of State, Washington DC 20520, POC: Mr. John Blanck,

l28. SA Garon Young, Washington Metro Resident Agency, Computer Crime Investigative

Unit, Quantico, VA 22134,

129. Mr. Joseph Yun, Principal Deputy Assistant Secretary, Bureau of East Asian Affairs,
Department of State, Washington DC 20520, POC: Mr. John Blanck,

Several of these witnesses may become unnecessary depending on the outcome of
subsequent Court rulings. The prosecution may add witnesses to this list, depending on the
outcome of subsequent Court rulings, to include those relating to Military Rule of Evidence
(MRE) 505 and any witnesses relating thereto. The prosecution may replace witnesses on this
list, should it become necessary due to a Permanent Change of Station, job relocation, change in
job position, or change in level of security clearance of a listed witness.

The prosecution acknowledges an ongoing obligation to provide the defense prompt
notice of any other potential witnesses that come to its attention and will adhere to the local
rules. The prosecution will communicate its final witness list according to Rule 2.1.8 of the
Rules of Practice before Army Courts-Martial (2012) and the Court's order.

If the defense intends to produce a witness who is listed above, the defense must provide
a separate, appropriate request for that witness in accordance with Rule for Courts-Martial
(RCM) 703 and the standard articulated in United States v. Rockwood, 52 MJ. 98, 105 (1999)
that a witness request include a ?synopsis of expected testimony,? not merely a list of topics to

8
FOR OFFICIAL USE BUT UNCLASSIFIED

22379

FOR OFFICIAL USE BUT UNCLASSIFIED

be covered. If necessary for a particular witness employed by the United States Government, the
defense shall also comply with 5 U.S.C. 301 and Touhv v. Raoen, 340 U.S. 462 (1951).

[k

ASHDEN FEIN
MAJ, A
Trial Counsel



Enclosure
Classi?ed Supplement to Witness List

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 22 June 2012.

ASHDEN FEIN
MAJ, A
Trial Counsel

9
FOR OFFICIAL USE BUT UNCLASSIFIED

22380

UNITEDSTATESOF AMERICA
Prosecution Motion
for Modilication of Court Orders
Government Motions Protective Order(s)
dated 2^A^ril2012

Manning,BradleyE.
PFCUS.Army,
HHC,U.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

22June2012

RELIEFSOUGHT
The prosecution respectfully requests that the Court modify its existing Order relating to
the defense'spublic release of filings, dated24 April 2012, three fold: (1)to authorize the
defense to publish their pleadings without the Govemment reviewing such pleadings; (2)prior to
publication of subsequent pleadings, to require the defense to certify to the Court that all such
Court filings or proposed filings for which the defense proposes to publicly release do not
contain unredacted information subject to an existing protective order; and (3) to order the
defense to redact an individual's^ob title or position, if that individual is notaparty to the trial
and only one individual holds that ^ob title or position.

BURDEN OFPERSUASION AND BURDEN OFPROOF
The burden of proof on any factual issue the resolution of which is necessary to decidea
motion shall be by preponderance of the evidence. RCM 905(c)(1). The burden of persuasion
on any factual issue the resolution of which is necessary to decideamotion shall be on the
movingparty RCM 905(c)(2)
FACTS
On24 April 2012, the Court ordered the defense to notify the prosecution of each filing
intended for public release and to provide the prosecution with the original filing and the
redacted filing intended for public release. See Appellate Exhibit (AE)LXVII. The defense is
required to provide this notice to the prosecution by the scheduled filing date for motions,
responses, or replies. See id.
The Court ordered the prosecution to address each filing individually and identify,with
particularity,each portion of the filing to which the prosecution objects to public release and the
legal basis for each objection to public release. The prosecution is required to provide the Court
with this information as follows: (1)by the scheduled filing date for responses for defense
motions (i.e., two weeks); (2) by the scheduled filing date for replies for defense responses (i.e.,
five days); and (3) three days after filing of defense replies. See id.
The Court further ordered that personal identifying information will be redacted from all
defense filings publicly released. The Court ordered the defense to reference any person who is
notaparty to the trial by initials of first and last name. See id.
1

APP^LLATEEXH181T^^
PAG^R^FERENCED;
PAG^
GF
^^^^^

22381

Since 24 April 2012, the defense has submitted filings outside the schedule detailed by
theexistingcasecalendar See,e^,AELXXXXIX,AEC4AECVI,AECX,AECXVLAE
CXX,AECXX4 Further, the defense has submitted filings that reference individuals who are
not parties to the trial by their^ob title or position, even though there is only one person who
holds that particular^ob title or position. See, e.g., AECI.AE CXIX.
WITNESSES/EVIDENCE
The prosecution does not request any witnesses or evidence be produced for this motion.
The prosecution requests that the Court consider the Enclosures and Appellate Exhibits
referenced herein.
LEGALAUTHORITY AND ARGUMENT
The prosecution respectfully requests that the Court modify its existing Order relating to
the defense^spublic release of filings, dated24 April 2012, three fold: (1)to authorize the
defense to publish their pleadings without the Govemment reviewing such pleadings; (2)prior to
publication of subsequent pleadings, to require the defense to certify to the Court that all such
Court filings or proposed filings for which the defense proposes to publicly release do not
contain unredacted information subject to an existing protective order; and (3)to order the
defense to redact an individual's^ob title or position, if that individual is notaparty to the trial
and only one individual holds that ^ob title or position.
I:

THEPROSECUTIONREQUESTS THATTHE DEFENSEBEALLOWEDTO
PUBLISH SUBSEQUENTCOURTFILINGSORPROPOSED FILINGS UPON
CERTIFYING WITHTHECOURTTHATTHOSE FILINGS DO NOT
CONTAINUNREDACTED INFORMATION SUBJECTTO ANEXISTING
PROTECTIVE ORDER

The prosecution requests that the Court allow the defense to publish subsequent court
filings or proposed filings upon certifying with the Court that such filings do not contain any
unredacted protected information. Sucharesult will enable the defense to more expeditiously
publish its filings and minimize any administrative burden on the United States Govemment
from future untimely defense filings,without overly burdening the defense.
Since the applicable Court Order on24 April 2012,the defense has subn^tted filings
outside the schedule detailed by the existing case calendar, requiring the prosecution and the
proper agencies,without notice, to coordinate the approval of such unexpected filings.' See,
e^,AELXXXXIX,AECLAECVLAECX,AECXVI,AECXX,AECXXLTheOrderdid
not contemplate sucharesulL Requiring the prosecution to review defensefilingssubmitted
^ Given the numher of agencies involved, reviewing the defense tilings requires the prosecution to identify the
referenced agencies, suhmit such filings to those agencies, and coordinate with the proper representatives for
approval or necessary redactions. The timeline set forth in the existing Order is consistent with the time necessary
to accomplish this task,which is hased on the Courts Scheduling Order and does not contemplate off-schedule
filings.

22382

outside the scheduled case calendar is overly burdensome for the prosecution and the United
States Govemment asawhole. For the prosecution,sucharequirement disrupts its preparation
for upcoming Article 39(a) sessions and its continued effort to ensure the accused receivesafair
and speedy triaL For the United States Govemment organizations and agencies, sucha
requirement disrupts on going operations and ultimately stalls its support to the court martial
process relating to pretrial and trial matters, including obtaining information and requisite
approvals in discovery.
Requiring the defense to certify that its subsequent filings do not contain any unredacted
information subject to an existing protective order is not overly burdensome for the defense.
Under the present Order, the defense is already required to review the material and redact the
information that is protected. Under this proposed modification, the only additional step is for
the defense to sign and acknowledge that they have not violated any protective order prior to
publically releasing the pleadings. Should any pleading contain protected information, the
defense shall properly redact this information prior to public release.
For the above reasons, the prosecution requests that the Court order the defense to certify
that subsequent Court filings and proposed filings for which the defense proposes to publicly
release do not contain any uru^edacted information subject to an existing protective order. The
prosecution requests that this certification be signed by at least one defense counseL See
Enclosurel.
ILORDERING THE DEFENSETO REDACT ANINDIVIDUAL'S JOB TITLE
ORPOSITION, IFTHATINDIVIDUAL IS NOTAPARTYTOTHETRIAL
ANDONLYONEINDIVIDUALHOLDSTHATJOBTITLEORPOSITION,
IS CONSISTENTWITHTHECOURT'S PRIOR ORDER
The existing Court Order states that all persons who are not parties to the trial shall be
referenced by initials of first and last name in any defense filing publicly released to protect the
safety of potential witnesses. SeeAELXVIL Since that Order, the defense has subnritted filings
that reference individuals who are not parties to the trial by their^ob title or position, even
though there is only one person who holds that particular^ob title or position. See,e.g.,AECI,
AECXIX. Consistent with the Court'sintent to protect the safety of potential witnesses, the
prosecution requests that the Court order the defense to redact an individual's^ob title or
position, if that individual is notaparty to the trial and only one individual holds that ^ob title or
position. Identifying individuals by their^ob title or position,when only one person holds that
^ob title or position, confiicts with the spirit of the Court'sOrder and does not protect the safety
of those individuals.
CONCLUSION
The prosecution respectfully requests that the Court modify its existing Order relating to
the defense^spublic release of filings, dated24 April 2012, threefold: (l)to authorize the
defense to publish their pleadings without the Govemment reviewing such pleadings; (2)prior to
publication of subsequent pleadings, to require the defense to certify to the Court that all such
Court filings or proposed filings for which the defense proposes to publicly release do not

22383

contain unredacted information subject to an existing protective order; and (3) to order the
defense to redact an individual's^ob title or position, if that individual is notaparty to the trial
and only one individual holds that ^ob title or position.

LHUNTER WHYTE
CPT,JA
AssistantTrial Counsel
2Enclosures
1. Certification Sample
2 Draft Order

Icertifythatlserved or caused to be servedatrue copy of the above on Mr. David
Coombs, Civilian Defense Counsel viaelectronic mail, on 22June 2012.

^

LHUNTER WHYTE
CPT,JA
Assistant Trial Counsel

22384

UNITED STATES OF AMERICA

Prosecution Motion

V.

for Modification of Court Order:
Government Motion: Protective Order(s)
dated 24 April 2012

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

Enclosure 1
22 June 2012

22385

UNITED STATESOF AMERICA

Manning, Bradley E.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Certification of
Defense Court Filings or
Proposed Filings for
Public Disclosure

1. Ihereby certify thatlhave reviewed the Defense Court filing(s)or proposed filing(s)listed in
paragraph3tor intormation subject to an existing protective order, including hut not limited to
thefollowing:
a Appellate FxhibitXXXll;
b. Protective Order tor Secretary ofthe Army AR 15-6 Investigation dated 22 June 2011;
c. Protective Order fbr Law Enforcement Sensitive Information and Other Sensitive
Intormation dated 22 June 2011, which also incorporates the following federal protective and
disclosureorders: 10S^576,10S^652,118C55,11^C56,118C131,11^AG^41,11S^47,
11S^^^,11SW^4,10M110^,10SW396,10SW464,10GJ379311^C4 10GJ379311EC9,10
3 3 0 M 0 4 10GJ379311EC3,10GJ3793RNK,andlOGJ3793GrandJury 1 0 4 1 ^ 2 , 1 0 3 , 1 0 4,11-4112, andll-3
2. Ihereby certify that the Defense Court filing(s)or proposed filing(s) listed in paragraph3
do(es)not contain any unredacted intbrmation subject to an existing protective order. Any
information subject to an existing protective order has been properly redacted prior to public
disclosure.
3. The Defense Court filing(s)or proposed filing(s)fbrwhichlpropose to release publicly are
as follows:
a. Filing^l;
b. Piling ^2; and
c. failing ^3.

SIGNATURE:
NAME:

DATE:

22386

UNITED STATESOF AMERICA

Manning,BradleyE.
PFCUS.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Prosecution Motion
for Modification of Court Order:
Government Motion: Protective Order(s)
dated 24 April2012
Enclosure2
22June2012

22387

UNITED STATESOF AMERICA

Manning,BradleyE.
PFCUS.Army,
H H C U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

ORDERS
GOVERNMENTMOTIONFOR
MODIFICATION OFCOURT ORDERS
GOVERNMENTMOTION:
PROTECTIVE ORDER(S)
DATED 24 APR1L2012
DATED^

4 This Order applies when the Defense intends to release publicly Defense Court filings or
proposed filings.
2. Apleading is ^^filed" with the Court when it is identified as an exhibit on the record at an
Article 39(a) session. Pleadings served on the opposing party that have not been identified on
the record at an Article 39(a) session are ^^proposed filings."
3 ThisOrderis issued lA^MRE505(g)and(h),^RE506(g)and(h),RC^701(g)and RCM
^06(d),and^^^///^7^/^^.^^./^/^^^^/^^^/,104S.CL2199(19^4) TheCourtfindsthisOrder
necessary under the above authorities. The Government has provided the Defense both classified
intbrmation and government information subject to protective order under MRE 505(g)(l)and
MRE 506(g). This Court has issuedaprotective order for classified information provided to the
Defense in discovery. The Defense accepted such discovery and agreed to comply with the
protective orders. There have been two classified information spillage incidents to date in this
case.
4. This Order supplements the Order issued by the Court on24 April 2012.
ORDER:
1. The Defense shall review all subsequent Court filings or proposed filings tor which the
Defense proposes to release publicly fbr information subject to existing protective orders. The
Defer^se shall redact any such protected information.
2. The Defense shall certify to the Court that such Court filings or proposed filings do not
contain any unredacted information subject to an existing protective order. The certification
shall state that the Court filings or proposed filings do not contain any information subject to an
existing protective order or, in the alternative, that any such information has been properly
redacted. The certification shall be signed by at least one defense counseL
3. Toprotect the safety of potential witnesses, all persons who are not parties to the trial shall be
referenced only by initials offirst and last name in any Defense filing publicly released, and not
by^ob title or position, to include listing their^ob title or position.





So ORDERED: this day of 2012.

DENISE R. LIND
COL, JA
ChiefJudge, 1? Judicial Circuit





IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE TARGETED
BRIEF ON ABSENCE OF HARM

V.

MANNING, Bradley E., PFC

U.S. Army,

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

DATED: 21 June 2012



RELIEF SOUGHT

l. The Defense requests that this Court deny the Govemment?s motion in its entirety for the
reasons identi?ed herein.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party, the Government has the burden of persuasion. R.C.M. 905(c)(2). The
burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(l

FACTS

3. On 29 March 2012, the Government filed a motion to preclude the Defense from mentioning
actual damage on the merits. Appellate Exhibit LXIV. The Defense filed a brief opposing the
Govemment?s motion on 12 April 2012. Appellate Exhibit LXV. The Court heard oral
argument on the issue during the 24 through 26 April Article 39(a) session, and took the matter
under advisement.

4. On 6 June 2012, the Court requested the parties provide more targeted briefs on the
following:

a) The potential uses of the ?actual damage? information on the merits as indicated by the
Defense in its Response Motion;

b) Research on the example provided by the Defense regarding assault with a means likely to

cause death or grievous bodily hann. The Court requested case law on the issue of ?what
actually happened? being relevant to ?what could happen."

Mott)

APPELLATE
0?





During the 6 June 2012 hearing, the Court asked the Government if it intended to introduce any
evidence of actual damage on the merits. The Government responded ?No, Your Honor. None.?
See Audio Recording of 6 June 2012 Article 39(a). The Government then stated,

But, Your Honor, may I clarify from the perspective of damage assessments then
no. But, depending on the de?nition of damage, we do have to prove prejudicial
to good order and discipline and service discrediting. So, it could be conceived
of, of immediate damage on the unit, or the perception of the Army or the unit.
That could be, that could fall under the umbrella of damage. So for our Clause 1-
2 of Article 134 what would be normally in any other court-martial then, yes.
But not, damage from damage assessments that would go to actual harm of
.national security. We will de?nitely include that in our brief.

Id.

EVIDENCE

5. The Defense does not request any witnesses be produced for this motion. The Defense
requests that this Court consider the following evidence in support of this motion:

a) Appellate Exhibits LXIV and

b) Audio Recording of 6 June 2012 Article 39(a);

c) Attachment A (WikiLeaks Website Publishes Classi?ed Military Documents ?-om Iraq,
CNN, Oct. 22, 2010);

(1) Attachment (Gates, Mullen Blast WikiLeaks for Disclosures, Fox News, Jul. 29, 2010);

e) Attachment (Charlie Savage, Gates Assails WikiLeaks Over Release of Reports, N.Y.
Times,-Jul. 30, 2010);

f) Attachment (Adam Levine, Gates: Leaked Documents Don ?t Reveal Key Intel, But Risks
Remain, CNN, Oct. 16, 2010);

g) Attachment (WikiLeaks Iraq War Documents.? The Key Issues, BBC News, Oct. 25,
2010)

h) Attachment (Are Risks ?om WikiLeaks Overstated by Government?, Associated Press,
Aug. 17, 2010);

i) Attachment (Nancy A. Youssef, US. Officials: New WikiLeaks Release Will do Most
Harm Yet, McClatchy Tribune News Service, Nov. 27, 2010);

j) Attachment (George Packer, The Right to Secrecy, New Yorker, Nov. 29, 2010);

k) Attachment I (Secretary of State Clinton Contacts countries Ahead of WikiLeaks Release,
Seattle Times, Nov. 27 2010);

1) Attachment (Clinton: WikiLeaks Won ?t Hurt U.S. Diplomacy, CBS News, Dec. 2, 2010);
and

m) Attachment (DOD News Brie?ng with Secretary Gates and Adm. Mullen ?om the
Pentagon, U.S. Department of Defense, Nov. 30, 2010).



0 22391

LEGAL AUTHORITY AND ARGUMENT

6. The Defense reasserts its initial arguments for the relevance and admissibility of information
from the various damage assessments. See Appellate Exhibit LXV. Additionally, the Defense
requests that the Court deny the Government?s motion to preclude the Defense from mentioning
actual damage on the merits since: 1) the Govemment?s request is overbroad; 2) the information
from the damage assessments is proper impeachment evidence; 3) the information from the
damage assessments is relevant to the charged offenses; and 4) the information from the damage
assessments provides a viable defense.

I. The Government?s Request is Overbroad

7. The Government requests that the Court preclude the Defense from ?raising or eliciting any
discussion, reference, or argument, to include the introduction of any documentary or testimonial
evidence, related to actual harm or damage from pretrial motions related to the merits portion of
the trial and from the merits portion of the trial.? Appellate Exhibit LXIV, at 1. It is unclear
what exactly the Government is seeking to prevent the Defense from introducing. If the
Government is attempting to prevent the Defense from referencing anything that might be
contained in any damage assessment during the merits portion of trial, such a request is
overbroad and should be denied by this Court.

8. The Government?s request fails to draw a distinction between the Defense referencing the fact
that a specific damage assessment concluded the charged information caused no harm or
minimal harm, and the Defense referencing specific information contained in the damage
assessments. The Govemment?s request requires this Court to ignore any possible use of this
information, such as impeaching a witness or providing evidence relevant to a charged offense,
and simply rule that this information is not relevant until sentencing.

9. The Government fails to provide the Court with any real justi?cation for granting its request
at this time. If the Government believes that a particular line of questioning is not relevant, the
Government should object at the time the testimony is being elicited. Only when the Court has
the bene?t of considering the testimony of the speci?c witness and the evidence introduced by
the parties can the Court determine if a particular line of inquiry is relevant. See United States v.
Swenson, 51 MJ. 522, 526 (A.F. Ct. Crim. App. 1999) (?By deferring his ruling, the military
judge often can better assess the relevance and necessity of the evidence?).

10. Due to the overbroad nature of the Govemment?s request and for the reasons discussed
below,the Government?s motion should be denied in its entirety.

II. The Information from the Damage Assessments is Relevant Impeachment Evidence

A. The General Nature of the Information from the Damage Assessments



0 0 22392

11. The Government has provided notice of the following damage assessments:l

a) Department of State damage assessment;

b) damage assessment;

c) ONCIX damage assessment;

d) Department of Homeland Security damage assessmentgz
e) FBI Impact Statement;

t) Any damage assessment by one of the 63 agencies; and
g) CIA damage assessment.

The Defense has been given an opportunity to review the damage assessments from the
Department of State, the the Department of Homeland Security and 25 of 63
governmental agencies that conducted a review for

12. Based upon a review of the provided damage assessments, it is clear that the information
within the damage assessments is favorable for the Defense. The damage assessments so far
contain at least the following information:

a) Factual Assertions: The assessments provide speci?c factual assertions. By way of
example, a factual statement could be ?no sources were compromised because all sources were
referred to by initials, not names.?

b) Speculative Statements: The assessments also contain quali?ed statements concerning
possible harm from the release of the charged information. Again, by way of example, a
speculative statement could be ?if happens, then it could cause harm to our efforts to achieve a
certain outcome.?

B. Damage Assessments Can be Used to Impeach Witnesses Who Testify that the Charged
Information ?Could? Cause Damage

13. Factual assertions or speculative statements regarding the damage caused by the alleged
leaks (or, more accurately, the absence of damage) are relevant for the impeachment of
Government witnesses who claim that the leaks ?could? cause damage. The Government,
however, argues that the use of a damage assessment to impeach an Original Classi?cation
Authority (OCA) who prepared a classi?cation review would be improper. See Appellate
Exhibit LXIV, at 3. The Government fails to provide any justification for its position. Why is it
improper to use actual ex post knowledge (whether derived from a damage assessment or not) to
challenge the reasonableness or appropriateness of the ex ante classi?cation decision which the
Government relies on to show the documents could cause damage? If a doctor, for instance,
were called to the stand to testify that a certain chemical ?could? cause cancer and the doctor?s

The Government has not yet provided access to the damage assessments from ONCIX, the FBI, CIA, or 38 of the
63 agencies that completed a review for

2 The Government provided Defense with noti?cation of the existence of the Department of Homeland Security
damage assessment for the ?rst time on 8 June 2012. The Government did not indicate when it ?rst learned of the
damage assessment or why it had not provided notice to the Court or the Defense of its existence. The Government
simply stated that 8 June 2012 was the ?rst time that they were authorized to provide the damage assessment to the
Defense.



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own hospital or the FDA had published a subsequent report saying that a link had not been
established between the chemical and cancer, why could the Defense not use that subsequent
knowledge to impeach the witness?s testimony that the chemical ?could? cause cancer?

14. An OCA witness is not immune from impeachment any more so than any other witness who
takes the stand. M.R.E. 607 (?The credibility of a witness may be attacked by any
M.R.E. 608 (once a witness testifies, his or her credibility becomes an issue). An
testimony regarding whether certain information could cause damage to the United States or aid
any foreign nation is simply that individual witness?s opinion. An opinion is not
sacrosanct. United States v. Diaz, 69 M.J. 127, 133 (C.A.A.F. 2010) (holding that classi?cation
alone is not determinative on the issue of whether information could cause damage to the United
States under 18 U.S.C. Section 793). An OCA does not get special treatment, nor is he exempt
from cross?examination simply because he is an OCA.

15. Accordingly, the Defense should be able to probe the basis of the testimony that the
information could cause damage by using either factual assertions or speculative statements from
the various damage assessments. See United States v. Israel, 60 M.J. 485, 486 (C.A.A.F. 2005)
defendant?s right under the Sixth Amendment to cross-examine witnesses is violated if the
military judge precludes a defendant from exploring an entire relevant area of cross-
examination.? (citing United States v. Gray, 40 M.J. 77, 81 (C.M.A.

16. For instance, suppose that a damage assessment revealed that Afghani sources were not
compromised in the alleged leaks because the sources were referred to in the leaked SIGACTS
by initials and not by name. If a Government witness testifies that the information could cause
damage, the Defense should be able to information from the damage assessment to question the
witness about whether, in making the determination that the information could cause damage, he
knew that the sources were referred to by initials. If the witness did not know this, the Defense
could probe whether this new information (learned from the damage assessment) would change
the witness?s View that the information could cause damage. While the Government would
neatly have the Court separate the OCA classi?cation reviews from the OCA damage
assessments, the analysis is not that tidy. Evidence from the latter is directly relevant to the
former and can be used to impeach a witness?s credibility.

17. Similarly, suppose that the damage assessment conducted one or two years after the alleged
leaks concluded that the released information ?could? affect the mission in Afghanistan (not that
it ?did? affect the mission in Afghanistan). The Defense should be permitted to question a
Government witness on the fact that, after a significant period of time had elapsed, the most that
a damage assessment was able to conclude was that the information ?could?_affect the mission in
Afghanistan. This would be used to establish that the witness? conclusion that the leaks ?could?
cause damage is remote and speculative, and thus should not be given weight by the members.
The damage or injury that is contemplated under 18 U.S.C. Section 793 cannot be too remote or
fanciful, or there is a risk that the section will be converted into a strict liability offense.
Anything ?could? happen - the world ?could? end tomorrow; Kim Kardashian ?could? be
elected. president of the United States of America; I ?could? win the lottery. These are not the
types of ?could? that 18 U.S.C. Section 793 contemplates. Therefore, the Defense should be able
to probe whether the witness?s testimony that the infonnation could cause damage to the United



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States is remote, speculative, far-fetched and fanciful by examining such witnesses on the fact
that two years after the alleged leaks, the conclusion is still merely that the information ?could?
cause damage not that it ?did? cause damage. See United States v. Johnson, 30 M.J. 53, 57
cert. denied, 498 U.S. 919 (1990) (indicating that in ?means likely? cases, the
probability of harm ?must at least be more than merely a fanciful, speculative, or remote


18. This Court should not limit the ability of the Defense to examine any OCA or other
Government witnesses concerning the factual assertions and speculative statements in the
damage assessments since this evidence could undermine the witnesses? conclusions that the
charged information ?could? cause harm. See United States v. Bahr, 33 M.J. 228 (C.M.A. 1991)
(holding military judge?s ruling was an evidentiary and constitutional error by limiting defense in
their ability to cross examine the prosecutrix); see also United States v. Moss, 63 M.J. 233 (2006)
(holding that exclusion of evidence of bias under Rule 608(c) raises issues regarding an
accused?s Sixth Amendment right to confrontation if the military judge precludes an accused
from exploring an entire relevant area of cross-examination). Unfortunately, the Government
seeks to put blinders on the members, the Defense and the witnesses in order to have the ?could?
analysis take place in an absolute vacuum.

19. If PFC Manning is not permitted to question an OCA or other Government witnesses
regarding the factual statements and speculative assertions in the damage assessments, his Sixth
Amendment right to confrontation will be violated. Without the ability to undercut the assertions
of the OCA or other Government witnesses with the Government?s own conclusions regarding
the fact that the charged information did little if any damage, the members will undoubtedly
defer to the expertise of the OCA when he testi?es the information could cause damage.
However, with the bene?t of the information from the damage assessments, the members would
receive a signi?cantly different impression of an credibility when he testi?es that the
information could cause damage. See United States v. Collier, 67 M.J. 347, 352 (C.A.A.F. 2009)
(Whether a limitation on the presentation of evidence of bias constitutes a Sixth Amendment
violation is ?whether reasonable jury might have received a signi?cantly different
impression of [the witness?s] credibility had [defense counsel] been permitted to pursue his
proposed line of Thus, PFC Manning must be allowed to explore this
legally and logically relevant area of inquiry.

C. Damage Assessments Can Be Used to Show Bias of Government Witnesses

20. The Defense believes that any OCA or Government witness who testi?es regarding the
charged information has an inherent motive to overstate whether the charged information
?could? cause harm. The motive to misrepresent by the OCA or other Government witness is
due to either anger or embarrassment from the release of the charged information, and/or a desire
to support the previous exaggerations by governmental officials concerning the nature or risk or
the level of harm due to the charged information being made public. See M.R.E. 608(c) (stating
?evidence of bias, prejudice, or any motive to misrepresent may be shown to impeach the
witness either by examination of the witness or by evidence otherwise





It is important to recall the Govemment?s initial reaction to the release of the charged
information in this case. Then-Pentagon Press Secretary Geoff Morrell stated that:

This is all classi?ed secret information never designed to be exposed to the
public. Our greatest fear is that it puts our troops in even greater danger than they
inherently are on the battle?elds. That it will expose tactics, techniques and
procedures how they operate on the battle?eld, how they respond under attack,
the capabilities of our equipment . . . how we cultivate sources [and] how we
work with Iraqis . . . .

Now you will have virtually half a million classi?ed secret documents in the
public domain which our enemies clearly intend to use against us . . . . That can
endanger the lives of American forces, notjust in Iraq and Afghanistan, but
around the world.

See Attachment A (WikiLeaks Website Publishes Classified Military Documents from Iraq,
CNN, Oct. 22, 2010, available at In
addition to Mr. Morrell?s statements, then-Chairman of the Joint Chiefs of Staff Admiral Mike
Mullen stated, ?Mr. Assange can say whatever he likes about the greater good he thinks he and
his source are doing. But the truth is they might already have on their hands the blood of some
young soldier or that of an Afghan family.? See Attachment (Gates, Mullen Blast WikiLeaks
for Disclosures, Fox News, Jul. 29, 2010, available at
Likewise Defense Secretary Robert Gates stated
in July of 2010 that WikiLeaks would have ?potentially dramatic and grievously harmful
consequences.? See Attachment (Charlie Savage, Gates Assails WikiLeaks Over Release of
Reports, N.Y. Times, Jul. 30, 2010, available at com/2010/07/30/


21. In spite of the above criticism and conjecture, within a few months the Department of
Defense concluded that ?the online leak . . . did not disclose any sensitive intelligence sources or
methods.? See Attachment (Adam Levine, Gates: Leaked Documents Don ?t Reveal Key Intel,
But Risks Remain, CNN, Oct. 16, 2010, available at
16/us/wikileaks. Instead,

according to Mr. Morrell, the reports consisted primarily of ?initial, raw observations by tactical
units . . . [which are] essentially snapshots of _events, both tragic and mundane.? See Attachment
(WikiLeaks Iraq War Documents: The Key Issues, BBC News, Oct. 25, 2010, available at
Given the nature of these documents,
it was acknowledged that the government knows of no case where anyone in Afghanistan has
been harmed because their name was in the leaked documents. See Attachment (Are Risks
?om WikiLeaks Overstated by Government? Associated Press, Aug. 17, 2010, available at


22. Likewise, when WikiLeaks announced its intent to release diplomatic cables, the response
by the Government was that the leak of these documents would be far more damaging than the
?rst two leaks combined. See Attachment (Nancy A. Youssef, U.S. O?icialss New WikiLeaks
Release Will do Most Harm Yet, McClatchy Tribune News Service, Nov. 27, 2010, available at

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1/27/1043 The
government stated that documents could drastically alter U.S. relations with top allies and reveal
embarrassing secrets about U.S. foreign policy. Id. Government representatives, including
Secretary Clinton, asserted that internal communications between U.S. diplomats and the State
Department would be less forthright for fear of later exposure, and foreign sources would be less
likely to disclose information or share opinions with American diplomats for fear that the U.S.
would be unable to protect their statements and identities from disclosure. See Attachment
(George Packer, The Right to Secrecy, New Yorker, Nov. 29, 2010, available at
.newyorker.com/ James P. Rubin,
The Irony of WikiLeaks, New Republic, Dec. 1, 2010, available at
politics/79531/ In an apparent effort to
minimize the damage, Secretary of State Hillary Clinton embarked on a global tour to discuss the
issue with leaders in various countries. Then-Department of State spokesperson PJ Crowley
stated that the release could be ?harmful to the United States and our interests and . . . create
tension in relationships between our diplomats and our friends around the world.? See
Attachment I (Secretary of State Clinton Contacts countries Ahead of WikiLeaks Release, Seattle
Times, Nov. 27 2010, available at
252_wikileaks28.html? syndication=rss).

23. Again, within a short period of time the Government started to retreat from its dire
predictions that the sky was falling. Secretary Clinton downplayed her concerns surrounding the
cables after she attended an Organization for Security and Cooperation in Europe meeting where
she spoke with foreign leaders who assured her that diplomatic relations would continue as
before. See Attachment (Clinton: WikiLealcs Won ?t Hurt U.S. Diplomacy, CBS News, Dec. 2,
2010, available at
(quoting Secretary Clinton as saying that at the OSCE meeting, have not . . . had any concerns
expressed about whether any nation will not continue to work with and discuss matters of
importance to us both going forward?)). Secretary Gates also con?dently declared that the
releases would have little effect on diplomatic relations:

But let me let me just offer some perspective as somebody who?s been at this a
long time. Every other government in the world knows the United States
government leaks like a sieve, and it has for a long time. And I dragged this up
the other day when I was looking at some of these prospective releases. And this
is a quote from John Adams: ?How can a government go on, publishing all of
?their negotiations with foreign nations, I know not. To me, it appears as
dangerous and pernicious as it is novel.? When we went to real congressional
oversight of intelligence in the mid-?70s, there was a broad view that no other
foreign intelligence service would ever share infonnation with us again if we were
going to share it all with the Congress. Those fears all proved unfounded.

Now, I?ve heard the impact of these releases on our foreign policy described as a
meltdown, as a game-changer, and so on. I think I think those descriptions are
"fairly signi?cantly overwrought. The fact is, governments deal with the United
States because it?s in their interest, not because they like us, not because they trust
us, and not because they believe we can keep secrets. Many governments some





governments deal with us because they fear us, some because they respect us,
most because they need us. We are still essentially, as has been said before, the
indispensable nation. So other nations will continue to deal with us. They will
continue to work with us. We will continue to share sensitive information with
one another. Is this embarrassing? Yes. Is it awkward? Yes. Consequences for
U.S. foreign policy? I think fairly modest.

See Attachment (DOD News Brie?ng with Secretary Gates and Adm. Mullen from the
Pentagon, U.S. Department of Defense, Nov. 30, 2010, available at
transcripts/transcript.aspx? transcriptid=4728 (transcript of press conference)). Secretary Gates
also stated thin, in all of these releases, whether it?s Afghanistan, Iraq, or the releases this
week [diplomatic cables], is the lack of any signi?cant difference between what the U.S.
government says publicly and what they things show privately. Id.

24. The Defense has now had the bene?t of reviewing the Information Review Task orce?s
damage assessment and the Department of State?s August 201 13 draft damage assessment. The
damage assessments underscore what the Defense has suspected all along in regards to the
speculative damage supposedly caused by the alleged leaks.

25. The Defense should be entitled to use the draft damage assessments to impeach any witness
from the Department of Defense, Department of State, or any other governmental agency. Based
on the over-reaction of government officials to the leaks (described above), witnesses will have a
motivation to lie or at least overstate whether the leaks ?could? cause damage.

26. The impeachment rules are required to be read to allow liberal admission of bias-type
evidence. See United States v. Hunter, 21 M.J. 240 (C.M.A.), cert. denied, 476 U.S. 1142
(1986); see also United States v. George, 40 M.J. 540 (A.C.M.R. 1994) (military judge
improperly restricted defense cross-examination of government toxicology expert. Questions
about the expert?s salary and possible sources of contamination of the urine sample were relevant
to explore bias); United States v. Aycock, 39 M.J. 727 (N .M.C.M.R. 1993) (military judge abused
his discretion and committed prejudicial error in excluding extrinsic evidence of a government
witness?s bias and motive to testify falsely). The Defense should not be arbitrarily limited in
exploring an entire relevant area of impeachment bias) simply because the Government does
not wish for panel members to know about America?s worst-kept secret that the alleged leaks
did little to no harm to national security. It is axiomatic that it is the role of the members to
determine the credibility of any witness. Accordingly, bias evidence, if logically and legally
relevant, is properly presented to the members.

?The Information from the Damage Assessment is Relevant to Charged Offenses

A. The Lack of Harm Goes to An Element of the Charged Offenses

3 The Department of State did not even believe it was to update its damage assessment after the entire
diplomatic database was released in unredacted form in September of 201 1. See Ms. Catherine Brown?s testimony
(audio recording of 7 June 2012 Article The fact the Department of State did not embark on an effort to
verify possible damage should speak volumes regarding the real likelihood of any such damage.

.

27. The Government states that it will not seek to introduce any evidence of actual damage on
the merits. See Audio Recording of 6 June 2012 Article 39(a) (transcript of colloquy provided in
factual section of brief above). However, in the same breath, the Government says that damage
may be relevant to the Clause 1 and 2 lesser included offense (L10) of the various offenses. Id.
So it appears that the Government would like to have its cake and eat it too. It would like to
prevent the Defense from referencing the absence of harm, but would like to reserve its right to
argue that harm was caused for the limited purpose of the Clause 1 and 2 elements of the charged
offenses.

28. The absence of harm is relevant to whether PFC Manning?s conduct was prejudicial to good
order and discipline in the armed forces or was of a nature to bring discredit upon the armed
forces. The relevance of this information is not controlled by how the Government attempts to
prove the Clause 1 and 2 elements of the charged offenses. In the same manner the Government
may seek to use this information to prove conduct that would satisfy the Clause 1 and 2 elements
of the charged offenses, the Defense should be entitled to use the lack of damage to prove that
the charged conduct was not prejudicial to good order and discipline or service discrediting. If
the charged information caused no damage and, in fact, did overall good, the conduct can hardly
be said to rise to the level of conduct that is prejudicial to good order and discipline or service
discrediting.

29. Not only is damage or the lack of damage relevant to the Clause 1 and 2 elements of the
charged offenses, but it is also relevant to the following:

a) 18 U.S.C. Section 793 and the 18 U.S.C.- Section 1030 offenses: The absence of harm is
relevant to whether PFC Manning had reason to know that the information released could be
used to the injury of the United States or to the advantage of a foreign nation. See Charge Sheet.

b) 18 U.S.C. Section 641: The absence of harm is relevant to whether there was a substantial
interference with the Government possession and thus a conversion of the information. Id.

c) Speci?cation 1 of Charge 11. The absence of harm is relevant to whether PFC Manning
acted recklessly or wantonly, an element of the charged offense. Id.

18 U.S.C. Section 793(e) and l030(a)( 1) Offenses

30. In order to prove PFC Manning is guilty of either the Section 793(e) or 1030(a)(1) offenses,
the Government must prove that PFC Manning knew or had a reason to believe that the charged
information could be used to the injury of the United States or to the advantage of any foreign
nation. ?Reason to believe? means that PFC Manning knew facts from which he concluded or
reasonably should have concluded that the charged information could be used for the prohibited
purposes. Gorin v. United States, 312 U.S. 19 (1941); United States v. Truong Dinh Hung, 629
F.2d 908, 919 (4th Cir. 1980); United States v. Lee, 589 F.2d 980 (9th Cir. 1979). In considering
whether or not PFC Manning had reason to believe that the charged information could be used to
the injury of the United States, or to the advantage of any foreign nation, a panel member should
be entitled to consider whether harm actually occurred, so as to test the reasonableness of PFC
Manning?s belief that this information could not cause damage to the United States.

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31. The Government would seek to prevent the panel members from having the bene?t of
hindsight in determining whether PFC Manning had ?reason to believe? the information ?could
be used to the injury of the United States or the advantage of a foreign nation.? The Government
argues that this Court should create a wall between the merits and the sentencing phase regarding
this vital information. It is clear that the Government is hoping that the panel members will
simply defer to the classi?cation decisions of various OCAs regarding the conclusion that
classi?ed information ?could? cause harm. Unfortunately for the Government, the Court of
Appeals for the Armed Forces (CAAF) has rejected such a simplistic inference by the members.
The CAAF has clearly stated that the classi?cation of a document is only probative, and not
determinative, of the issue of whether information could cause harm. United States v. Diaz, 69
M.J. 127, 133 (C.A.A.F. 2010); see also United States v. Morison, 844 F.2d 1057, 1086 (4th Cir.
1988) information may have been classi?ed, the government must still be
required to prove that it was in fact ?potentially damaging . . . or useful,? that the fact of
classi?cation is merely probative, not conclusive, on that issue?). Therefore, the panel members
should not be denied relevant evidence on this issue.

32. Under Diaz, the Government cannot satisfy its burden of showing that the documents could
cause damage merely by pointing to their classi?cation.4 Instead, the Government must produce
some witness testimony or additional evidence to satisfy its burden. The Defense is entitled to
challenge this testimony or additional evidence. The Defense should be permitted to argue that,
by virtue of his expertise and training, PFC Manning knew which documents and information
could be used to the injury of the United States or to the advantage of any foreign nation. PFC
Manning had access to a great deal of very sensitive information that, if disclosed, could have
caused damage to the United States. By selecting the information that he allegedly did, PFC
Manning deliberately chose information that could not cause damage to the United States. The
reasonableness of his belief that the information could not cause damage is buttressed by the
damage assessments which say that the leaks did not cause damage to the United States. In
short, the Defense submits that the damage assessments con?rm that PFC Manning did not have
?reason to believe? that the information could cause damage to the United States or be used to
the advantage of a foreign nation.

33. The Court speci?cally requested the parties to explore case law on the issue of ?what
happened? being relevant to ?what could happen.? Audio from 6 June 2012 Article 39(a)
hearing. Given the lack of case law covering the charged offenses in this regard, the Court
suggested that the parties explore the issue in the context of assault with a means likely to
produce death or grievous bodily harm. Id.; see generally Article 128 Para. 54c(4)(a).

34. United States v. Hudson provides an excellent example of ?what happened? being relevant
to ?what could happen.? 2000 WL 228777 (N-M. Ct. Crim. App. 2000). In Hudson, the court

4 The Government cites Diaz for a completely unrelated proposition that is not at issue here. See Government
Motion, "at 6. The motion to preclude evidence in Diaz was related to intent, not relevance. In Diaz, the military
judge excluded evidence that the Defense contended would satisfy the heightened mens rea requirement in 18
U.S.C. Section 793(e) of ?intent to do harm? or ?bad faith.? Id. at 137. Given that the Court concluded there was no
heightened mens rea requirement for Section 793(e), the exclusion of the evidence was proper. This ruling does not
speak at all to whether it is appropriate to exclude reference to actual harm in this case.

11

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found the evidence to be insufficient to support a conviction for assault with a means likely to
produce grievous bodily harm. The court used a two pronged test for its determination the
risk of harm and (2) the magnitude of the harm.? Id. at *2 (citing United States v. Outhier, 45
M.J. 326, 328 (C.A.A.F. 1996)). The court stated that ?the likelihood of death or grievous bodily
harm was determined by measuring both prongs, not just the statistical risk of harm.? Id.

35. Using the analysis that looked at ?what happened? in order to determine ?what could
happen,? the court held that the evidence fell short. Although the appellant assaulted his wife
?by grabbing her with his hands, slamming her against the wall, causing her head to hit the wall,
by pulling her across the room by her hair, and by pushing her to the floor causing her to strike a
bed and the court concluded that this ?did not create a high degree of risk to cause
grievous bodily harm? (the ?rst prong). Id. at Similarly, the court concluded that the
?magnitude of harm was not great? (the second prong). Id. at The court noted that the doctor
who examined the wife the following day found only minor injuries and the wife suffered no
fractures, dislocations, broken bones, deep cuts, or damage to any internal organs. Id.

Therefore, the court was not convinced beyond a reasonable doubt of the appellant?s "guilt of
assault with a means likely to produce grievous bodily harm. Id. In concluding that the evidence
was factually insufficient to sustain a conviction, the Hudson court clearly considered ?what
happened? in order to inform its decision of ?what could happen.?5 So too should this Court
allow the panel members to consider ?what happened? in order to inform it decision of ?what
could happen.?

36. Similarly, in United States v. Outhier, 45 M.J. 326 (C.A.A.F. 1996), the CAAF found the
accused?s plea improvident as to aggravated assault with a means likely to produce death or
grievous bodily harm. The Court noted that ?while it is well-settled that there is no requirement
to prove . . . any resultant injury or harm in order to prove aggravated assault, we recognize that
these circumstances frequently provide the between a means that is used in a manner
?likely? to produce death or grievous bodily harm and one that is not.? Id. at 329. The court
held that it was ?the circumstances [that] de?ne whether the means used were employed in a
manner likely to cause grievous bodily harm.? Id. After canvassing these circumstances, the
court concluded, ?Under these circumstances, we cannot hold that the plea provided factual
support for the conclusion that appellant?s actions were likely to result in death or grievous
bodily harm. In fact, no harm occurred.? Id. at 330 (emphasis supplied). As is clear, whether
harm occurred was afactor considered by the court in coming to its conclusion that the plea was
not provident as to the ?means likely? offense.

37. In United States v. Joseph, 33 M.J. 960 (N-M.C.M.R. 1991), the court stated:

Whether the conduct of the accused charged as an aggravated assault involves a
means used in a manner likely to produce death or grievous bodily harm
ultimately becomes a question to be determined by the fact ?nder. The evidence
need not establish that death or grievous bodily harm was highly probable or even
more likely than not, and no required statistical probability can be found in

5 The court held that it was insufficient to prove merely that death or grievous bodily harm was ?possible.? Instead,
the Court concluded the Government must prove that it was ?probable.? Id. at *2 (citing United States v.
Weatherspoon, 49 M.J. 209, 211, (C.A.A.F. 1998)).

12

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decisional law. It is for the fact ?nder to consider all the evidence and determine
_beyond a reasonable doubt whether the risk of harm meets the general statutory
requirement, although the law clearly does require that the risk amount to more
than ?merely a fanciful, speculative, or remote possibility? of harm.

33 M.J. at 964 (emphasis supplied). Thus, two things are clear from this passage. First, the risk
of harm must be more than merely ?fanciful, speculative or remote.? Id. Second, it is the job of
the fact-?nder to consider all the evidence (including whether harm actually resulted) and
determine whether the assault was with a means likely to produce death or grievous bodily

injury.

38. As stated above, the Government must prove that the information could cause damage, and
more speci?cally, that the accused had reason to believe that the information could cause
damage. The Defense should be entitled to rebut the Govemment?s proof by showing that the
accused did not have reason to believe that the information could cause damage and testing the
reasonableness of that belief against the actual damage caused (or, as the Defense would submit,
the absence of damage caused). Whether this line of defense is compelling to the members goes
to weight, not admissibility of the evidence. Relevant evidence is simply evidence that has ?any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.? See M.R.E. 401
(emphasis supplied). The ?any tendency? standard is the lowest possible standard for relevancy.
United States v. Schlamer, 52 M.J. 80 (C.A.A.F. 1999) (holding that M.R.E. 401 is a low
standard and the admitted evidence had some tendency to support a fact at issue); see also United
States v. Berry, 61 M.J. 91 (C.A.A.F. 2005) (discussing any tendency standard being a low
standard). If the facts are that the information either did not cause damage or caused minimal
damage, this would have at least some tendency to con?rm that PFC Manning did not have
?reason to believe? that the information could cause damage to the United States or be used to
the advantage of a foreign nation. United States v. ruong Dinh Hung, 629 F.2d 908, 919 (4th
Cir. 1980) (approving jury instruction that ?reason to believe? meant that a defendant must be
shown to have known facts from which he concluded or reasonably should have concluded that

1 the information could be used for the prohibited purposes). This plainly satis?es the lenient ?any

tendency? standard for relevancy.

18 U.S-.C. Section 641 Offenses

39. In Speci?cations Charge II, PFC Manning is charged with violations of
Section 641 under clause 3 of Article 134. See Charge Sheet. Under the charged speci?cations,
the absence of harm is relevant to whether there was a substantial interference with the
Govemment?s property interest and thus a conversion of the information under Section 641.

40. The key requirement of conversion under Section 641 is that an accused must exercise
control over the property in such a manner that serious interference with the rights of the owner
result. United States v. Wilson, 636 F.2d 225 (8th Cir. 1980); United States v. May, 625 F.2d 186
(8th Cir. 1980). In determining whether there has been a substantial interference, members must
be able to consider any actual harm or the absence of harm from the various damage
assessments. Under relevant case law, serious interference is one that prevents the government

13

0 0 22402

from making some other use of the property. United States v. Kueneman, 94 F.3d 653 (9th Cir.
1996) (the court reversed appellant?s conviction under Section 641 when it determined that the
government could not show any harm due to the appellant?s conduct); United States v. Collins,
56 F.3d 1416, 1421 (D.C. Cir. 1995) (after explaining that a charge of conversion requires
serious interference with property rights, the court found that the charges related to computer use
and storage were not supported where no evidence was offered showing the conduct ?prevented
[the defendant] or others from performing their of?cial duties?); United States v. Matzkin, 14
F.3d 1014, 1020 (4th Cir. 1994) (the court considered the amount of damage to the government
in concluding whether the appellant violated ?64l).

41. Actual damage, or lack thereof, is relevant on the merits as it relates to charges under
Section 641. This information would indicate the extent (if any) of ?serious interference? with
property rights of the Government. In deciding whether the Government has met its burden, the
members should be able to consider information from the various damage assessments. Because
evidence of actual damage is relevant, the Defense should be allowed to present this evidence to
the members.

Speci?cation 1 of Charge II

42. In Speci?cation 1 of Charge II, PFC Manning is charged with wrongfully and wantonly
causing United States intelligence to be published on the intemet, having knowledge that the
intelligence placed on the intemet is accessible to the enemy, in violation of Article 134. See
Charge Sheet. The absence of harm is relevant to whether PFC Manning acted recklessly or
wantonly, an element of the charged offense. Id. Although the MCM does not de?ne the term
?wanton? in the context of disclosure of information, it does de?ne the term in two other
contexts. See MCM, Part IV, para. 35.c(8) (de?ning ?wanton? for purposes of Article 1 id.,
Part IV, para. 100a.c(4) (de?ning ?wanton? for purposes of Article 134, offense of ?reckless
endangerment?). Both de?nitions 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. 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

43. Thus, ?wanton? as used in the clause 3 Article 134 offense will necessarily involve an
assessment of whether it was indeed reckless to release the charged information to WikiLeaks or
whether PFC Manning disregarded the probable consequences of his actions by engaging in the
alleged conduct. As such, the Defense should be entitled to use the factual assertions and
speculative statements within the damage assessments, as well as evidence related to the absence
of harm, to dispute that PFC Manning?s conduct was potentially ?wanton? or ?wrongful? for the
purposes of Speci?cation 1 of Charge II.

IV. The Court Should Not Preclude the Defense From Raising a Viable Defense

44. The Govemment?s effort to preclude the Defense from referencing any information from the
various damage assessments is identical to the tactic attempted in United States v. Drake. No.

14



0 0 22403

RDB-10-181 (D. Md. Mar. 31, 2011). The government in Drake attempted to preclude the
defense from referencing certain evidence during the merits. The court expressed an
unwillingness to foreclose a potential line of argument, especially given that the court had the
inherent power to control the courtroom. The court stated in this respect:

THE COURT: but my point is that, to preclude them from going down that
path, I think, essentially prevents them from presenting a defense, that we can
?control the matter of whether or not there is reference to necessity or justification,
and I ?m fairly con?dent I ?ll be able to control the courtroom to do that. It?sjust a
matter of where else we go with this motion, and it seems to me they?re certainly
entitled to get into this.



COURT: As I interpret the Govemment?s motion, or as I intend to interpret
it, it doesn?t mean that that evidence is -- although the Government seems very
concerned with it amounting to a higher calling, necessity, orjusti?cation
defense, I ?m fairly con?dent that I can keep this case on track to correct you if
you happen to make an inadvertent mistake in that regard, but you?re certainly
free to have at that in terms of the intent element, and that?s how I see it.

Transcript of Record at M-100, M-103, United States v. Drake, No. RDB-10-181 (D. Md. Mar.
31, 2011) (emphasis supplied).

45. PFC Manning should be permitted to prove that he knew which documents and information
could not be used to the injury of the United States or to the advantage of any foreign nation. In
order to buttress the reasonableness of his belief that the information could not cause damage,
this Court should conclude that PFC Manning is entitled to use information and conclusions from
the damage assessments.

46. In United States v. Diaz, the CAAF held that the military judge erred by preventing the
appellant from presenting motive evidence on an Article 133, UCMJ charge. 69 M.J. 127
(C.A.A.F. 2010). The CAAF determined that the evidence could have informed a fact?nder?s
judgment as to whether the appellant?s conduct was unbecoming an of?cer. Id. at 136.
Similarly, the damage assessment information would inform a factf1nder?s judgment as to
whether PFC Manning?s conduct was prejudicial to good order and discipline or service
discrediting; could cause damage to the United States or aid any foreign nation; substantially
interfere with the govemment?s use of the charged information; or constitute a reckless and
wanton disregard for the consequences of his actions.

47. PFC Manning had access to a great deal of very sensitive information that, if disclosed,
could have caused damage to the United States. By virtue of his expertise and training he should
be entitled to assert that he selected information that could not be used to the injury of the United
States or to the advantage of any foreign nation. In order to support this viable defense, the
Defense must be allowed to challenge the testimony of any Government witness by introducing

15




. . 22404

factual assertions and speculative statements from the various damage assessments and must be
permitted to argue that the leaked information did not cause harm to the United States.

CONCLUSION
48. For the reasons outlined herein, the Defense requests that this Court deny the Government?s

motion in its entirety. In the alternative, the Defense requests that this Court defer ruling on the
motion until the issue is ripe.

Respectfully submitted,

(Ck

DAVID EDWARD COOMBS
Civilian Defense Counsel

16



ATTACHMENT A

le^^i
WikiLeaks website publishe^Blssified
military documents from Iraq -^pM.com

Page 22406
1 of 5

WikiLeaks website publishes classified military documents from Iraq
By die CNN Wire Staff
Octol>er 25. 2010- Updated 1723 GMT (0123 HKT)

CNN.com
Washington (CNN) - The
whistle-blower website
WikiLeaks published nearly
400,000 classified military
documents from the Iraq war
on Friday, calling it the
largest classified military leak
in history.

The latest round of leaked
documents provides a new
picture ofhow many Iraqi
civilians have been killed, a
new window on the role that Iran has played in supporting Iraqi militants and many accounts of
abuse by Iraqi's army and police, according to The New York Times.
The Times was one of a handful of news organizations that was provided early access to the papers.
According to new documents, the vast majority of slain civilians were killed by other Iraqis.
The U.S. military is notifying Iraqis named in the documents. Pentagon Press Secretary Geoff
Morrell told CNN.
"There are 300 names of Iraqis in here that we think would be particularly endangered by their
exposure," he said. "We have passed that information on to U.S. Forces Iraq. They are in the
process right now of contacting those Iraqis to try to safeguard them."
The Pentagon had not previously warned Iraqi civilians who have cooperated with the United States
that their names may h>e posted on the Intemet.
"We don't want to start notifying people and then find out that their names aren't in any of these
documents that are released," Col. David Lapan, a top Pentagon spokesman, said earlier Friday.
"Why put people through the trouble and the concem for no reason?"
The Pentagon denounced the release, which WikiLeaks said comprised 391,832 reports.
"This is all classified secret information never designed to be exposed to the public," Morrell told
CNN Friday. "Our greatest fear is that it puts our troops in even greater danger than they inherently
are on these battlefields. That it will expose tactics, techniques and procedures — how they operate
on the battlefield, how they respond under attack, the capabilities of our equipment... how we
cultivate sources (and) how we work with Iraqis."

http://edition.cnn.com/2010/US/10/22/wikileaks.iraq/
..V

6/20/2012

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http://edition.cnn.com/2010/US/l 0/22/wikiIeaks.iraq/

6/20/2012

i^lssified military documents from Iraq-^^^.com
Iraq WikiLeaks website publishe^^^sified

22408
Page3of5

classified doct^entsfi^om the war in
A^l^^^l8tt,(^]^^i^8ti^of^^.^oittlC^i^^o^^1^f^^di^.^i^^
already haveontheirhandsthebloodofsomeyoungsoldierorthatofanAfghanfamily."
Morrell echoed that sentimentFriday.
"We know in the aftermath of the Afghan document leak that theTaliban and others spoke publicly,
encouraging theirmembers to mine that database-our intelligence confirmed that Iact,"he told
CNN."Nowyou will have virtually halfamillion classified secret documents in the public domain
which our enemies clearly intend to t.tse against us.
"That can endangerthe lives of American forces, not just inlraq and Afghanistan, butaround the
world,"Morrellsaid.
WikiLeaks has shownamuch heavier hand redacting the new round of documents compared to its
previous publication of doct^ents.
Editor-in-chiefJulian Assange told CNN's AtikaShubert the site was more "vigorous" this time
compared to the Afghat^stan process.
Read more on WikiLeaks'redaction ofinformation
An initial comparison ofafew documents redacted by WikiLeaks to the same doctiments released
by the Department ofDe^nse shows that WikiLeaks removed more information than the Pentagon.
The documents detail Iran's role in supplying Iraqi militiafighterswith weapons, including the most
lethal type of roadside bomb.
Field reports released Friday assert that Iraqi militants traveled to Iran fbr training as snipers and in
using explosives, according to theTimes. Iran's ^uds Force urged Iraqi extremists it was working
with to kill Iraqi officials, the Times reported.
CNN was offered access to tbe documents in advance ofthe release but declined because of
conditions that were attached to accepting the materiaL
According to an analysis by the Guardian,aBritish newspaper, the documents detail torture,
summary executions and war crimes.
U.S. authorities failed to investigate hundreds ofreportsofabuse, torture, rape and murder by Iraqi
police and soldiers, the documents show,according to the Guardian.
TheTimes said thathundreds of reports ofbeatings, burnings and lashings suggested that "such
treatment was not an exception."Most abuse cases contained in the new batch ofleaksappearto
have been ultimately ignored, the paper said.
The Times said thatmilitarymles require forces to report abuse to Iraqi authorities, but suggested

http://edition.cnn.com/2010/US/10/22/wikileaks.iraq/

6/20/2012

le^l^ssified military documents from Iraq
Iraq -^P^l.com
WikiLeaks website publishe^Hissified

Page22409
4 of 5

that there was little follow-up on abuse reports.
The group Iraq Body Count said that the new documents reveal 15,000 previously unknown civilian
deaths, raising the group's civilian death toll to 122,000.
"It's the largest single addition to our database since we began it," the anti-war group's co-founder,
John Sloboda, told CNN.
WikiLeaks' Assange told CNN in an exclusive interview Friday that the new round of field reports
shows "compelling evidence of war crimes" committed by forces ofthe U.S.-led coalition and the
Iraqi govemment.
The Pentagon's Morrell rebutted that charge.
"We vetted every single one of the documents, word by word, page by page," Morrell told CNN,
saying the vetting began in July. "There is nothing in here which would indicate war crimes. If there
were, we would have investigated it a long time ago."
A group of 120 Defense Department experts has been poring over hundreds of thousands of
"Significant Action Reports" that they expected to be posted to the WikiLeaks website.
In a news release, the group said the documents detail 109,032 deaths in Iraq, encompassing 66,081
civilians, 23,984 insurgents, 15,196 Iraqi govemment forces and 3,771 coalition forces, according
to the classifications used by the U.S. military.
Assange said the documents contained more than 1,000 reports on the torture or abuse of detainees
by Iraqi government forces and that he expects that 40 wrongful death lawsuits will be filed as a
result of the new leaks.
He dismissed concerns that the publication of the documents could endanger U.S. troops and Iraqi
civilians, asserting that the Pentagon "cannot find a single person that has been harmed" due to
WikiLeaks' previous release of 76,000 pages of documents related to the U.S.-led war in
Afghanistan.
"We strongly condemn the unauthorized disclosure of classified information and will not comment
on these leaked documents other than to note that 'significant activities' reports are initial, raw
observations by tactical units," the Department of Defense said in a Friday statement. "They are
essentially snapshots of events, both tragic and mundane, and do not tell the whole story. That said,
the period covered by these reports has been well-chronicled in news stories, books andfilmsand
the release of these field reports does not bring new understanding to Iraq's past.
"However, it does expose secret information that could make our troops even more vulnerable to
attack in the future," the statement continued. "Just as with the leaked Afghan documents, we know
our enemies will mine this information looking for insights into how we operate, cultivate sources,
and react in combat situations, even the capability of our equipment. This security breach could
very well get our troops and those they arefightingwith killed."

http://edition.cnn.com/2010/US/10/22/wikileaks.iraq/

6/20/2012

^fN.,
WikiLeaks website publish^^assified military documents fiom Iraq ^pTN.com

Page22410
5 of 5

Ryan Crocker, former U.S. Ambassador to Iraq, said this week he is concerned for the safety of the

Iraqis Wio may be mentioned.
. "What I'd really be worried about in this contexL we're notfightinga hot war," Crocker said in
remarits at the Center for Strategic and International Studies on Tuesday. "It's not the same set of
issues in Afghanistan, although there may be some carryover. I'd really be worried if, as looks to be
the case, you have Iraqi politicalfiguresnamed in a context or a connection that can make them
politically and physically vulnerable to their adversaries.
"It just has an utterly chilling effect on the willingness of politicalfiguresto talk to us, notjust in
Iraq, anywhere in the world. And I think a hugely irresponsible step on the part of WikiLeaks. Just
in a different sense than we saw in Afghanistan, this, too, is going to put lives at risk needlessly and
irresponsibly."
CNN's Larry Shaughnessy contributed to this report.

0
C 2011 Cable News Networlc Turner Broadcasting System. Inc. All Rights Reserved.

http://edition.cnn.com/2010/US/10/22/wikileaks.iraq/

6/20/2012



ATTACHMENT

Gates, Mullen Blast WikiLeNKbr Disclosures | Fox News

Page22412
2 of 3

Gates, Mullen Blast WikiLeaks for Disclosures
Piidbshfed Julv .?3 » U i I Ftj»N6ws corr

Top Pentagon officials assailed VWkiLeaks on Thursday tor Its release of thousands of pages of leaked documents covering the war
in Afghanistan - at one point even accusing the man behind the whistle-blower website of having "blood . on his hands"
Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Adm Mike Mullen Issued some of their harshest criticisms yet
of ttie leak, which appeared to Include the names of Afghans enlisted as classified U S military Informants
WikiLeaks founder Julian Assange has defended the release, but Mullen dismissed his arguments
"Mr Assange can say whatever he likes about the greater good he thinks he and his source are doing, but the tmth is they might
already have on their hands the bkxxl of some young soldier or that of an Afghan family," Mullen said
Gates said he called FBI Director Robert Mueller seeking assistance in the ongoing investigation into the leak of the documents,
though Gates wouldn't comment on reports that the leak was the work of Pvt Bradley Manning, an Army intelligence analyst
already under suspicion In an earlier leak of classified materials to WikiLeaks
The cnminai Investigation Into the leak couU go beyond the military. Gates sakl, and he dkJ not rule out that Assange oouW be a
target
"The investigation should go whenever it needs to go," Gates said
He would not be more specific, waving off questions about whether Assange or media outlets that used the WikiLeaks material
could be subjects of the criminal probe But he noted that he has asked the FBI to help In the investlgatkin "to ensure that it can go
wherever It needs to go"
Gates and Mullen called the release of the documents that WikiLeaks calls Its "Afghan War Diary" deeply damaging and potentially
life-threatening for Afgtian Informants or others who have taken risks to help the U S and NATO war effort
Theirs was the most sober assessment of the ramifications of the leak Sunday of raw intelligence reports and other material dating
to 2004
The Army Is leading an Inquiry inskJe the Defense Department into who downloaded some 91,000 secret documents and passed
the material lo WikiLeaks. an online archive that descrit>es itself as a public service organization tOr whistlebk>wers, journalists and
activists
The FBI would presumably handle aspects of the investigation that Involve civilians outside the Defense Department, and the
Justice Department couW bring charges in federal couri
Assange agreed Tuesday that the files offered Insight into U S. tactics
But he said that was none of his concem, and seemed Irritated when a questioner in London pressed him on whettier he believed
tttere were ever any legitimate national security concerns that would prevent him from publishing a leaked document
"It Is not our role to play skies for states States have national security concerns, we do not have national security concerns," he
said
Gates sakl that the Pentagon is tightening rules for handling classified material in war zones as a result of the leak He did not
mention Manning by name, and Pentagon officials caution that Manning may not be the sole target of the Amy Inquiry
Manning was statmned at a small post outsMe Baghdad If he was the source of the Afghan war kigs, he wouk) have been

http://www.fbxnews.com/politics/2010/07/29/pentagon-wikileaks-blood-hands/print

6/20/2012

22413

Gates, Mullen Blast WikiLd^for Disclosures | Fox News

Page 3 of 3

amassing material he had mtle if any reason to see.
I f the Mod of breach knolyBd In the dowriloadiitg of these thousands Of d o c ^ ^
the U.S. (here^ a vBiy high llkrthood we wDukJ have detectedtt,"Gales laM.
Fox NmHS'Pat Summers andttieAaaocfatad Press oonliilujiad to tins report.
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http://www.foxnews.com/politics/2010/07/29/pentagon-wikileaks-blood-hands/print
^ i ^ - .

6/20/2012
^



ATTACHMENT

22415

Gates Assails WikiLeaks Over
Release of Reports
Bv CHARLIE SAVAGE
Published: July 29,2010

WASHINGTON — Defense Secretary Robert M. Gates on Thursday denounced the
disclosure this week of 75,000 classified documents about the Afghanistan war by the Web
site WikiLeaks. asserting that the security breach had endangered lives and damaged the
ability of others to trust the United States government to protect their secrets.
Speaking to reporters at the Pentagon, Mr. Gates portrayed the documents as "a mountain
of raw data and individual impressions, most several years old" that offered little insight
into current policies and events. Still, he said, the disclosures — which includesome
identilying information about Afghans who have helped the United States — have
"potentially dramatic and grievously harmful consequences."
"The battlefield consequences of the release of these documents are potentially severe and
dangerous for our troops, our allies and Afghan partners, and may well damage our
relationships and reputation in that key part of the world," he said. "Intelligence sources
and methods, as well as military tactics, techniques and procedures, will become known to
our adversaries."
The Times has taken care not to publish information that would harm national security
interests or disclose anything that was likely to put lives at risk or jeopardize military or
antiterrorist operations, withholding any names of operatives in the field and informants
cited in the reports. It also has not linked to the archives of raw material.
Mr. Gates said the documents' disclosure had prompted a rethinking of a trend nearly two
decades old, dating from the Persian Gulf war of 1991, of trying to make intelligence
information more accessible to troops in combat situations so they can respond rapidly to
developments.
"We endeavor to push access to sensitive battlefield information down to where it is most
useful — on the front lines — where as a practical matter there are fewer restrictions and
controls than at rear headquarters," he said. "In the wake of this incident, it will be a real

22416

cltallet^ge to strike tl^erigl^t balance between security and providing ottrfrontlinetroopstl^e
information theyneed."
The military has charged an intelligenceanalyst^Pfc. Bradley Manning, with downloading
large amountsofclassifiedinfbrmationfromacomputeratabase in Iraq and sendingitto
WikiLeaks, which operatesfromserversscatteredacrossmultiplecountriesandsolicits
"classified, censored or otherwise restrictedmaterialofpolitical,diplomaticorethical
significance."
Military^ of^cials have said thatArmy investigators also cor^ider Private Manninga"person
ofinterest" in the investigation into the Website^smostrecent disclosures. Theysaid
ThursdaythathewasbeingmovedfromI^uwaitto^uantico,Va.,wherehewouldremainin
military confinementas he awaits furtherjudicial steps. WikiLeaks shared thedocuments
with publications in ^ritain^ Germany and the United States, including The ^ew^ork
Times, before postingthemthisweek.
^ulianAssange,anAustralian computer specialist who founded WikiLeaks, has described
theprojectasaformofjournalismthatseekstoprotectwhistleblowersandenhance
democracybymakingpublicinformationthatgovemmentoffrcialswouldratherkeep
secret.
Inaseries of media appearances and interviews this week, he has defended the latest
release as providing an unvarnished portrait of problems with the warinAfgharnstan, while
sayingthathisorgani^ationhadheldbackaboutt5,ooodocumentsforsafetyreasons.
^utatMr.Gates'snewsconferenceonThursday^the chairman ofthe^oint^hiefsofStaff.
Adm.MikeMullen,portrayedWikiLeaksasrecklesslyendangeringpeopleinordertosatisfy
its"needtomakeapoint^"
"Mr.Assangecansaywhateverhelikesaboutthegreatergoodhethinksheandhissource
are doing, but the truth is they might already have on their hands the blood of some young
soldierorthatofanA^hanfamily,"AdmiralMt^ensaid.
Mr. Gatessaid the militarywa^takingsteps to protectsomeAfghans identified in the
documents, buthedeclined to specifythem. He also declined to comment aboutthe
investigationbeyondnotingthathehadenlistedthel^ederal bureau oflnvestigation to
assistArmyinvestigators,amovethatisseenasaprecursortopotentiallychargingpeople
who are notuniformedservice members.

22417

Apersonfamiliarwiththeinvestigationl^assaidtl^at^usticeOepartmentlawyersare
e^ploringwhetherMr.Assange and WikiLeaks could be charged with inducing, or
conspiringin,violationsofthe^pionageAct,a^9t7lawthatprohibits the unauthorised
disdosureofnationalsecurityinformation.



ATTACHMENT

22419

G a t e s l ^ H L e a l t s d o n l reveal key Intel, but risks remain - CNN

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Reconmend

recormendafions.

The online leak of thousands of secret military
documents from (he war in Afghanistan by the
website WikiLeaks did not disclose any sensitive
intelligence sources or methods, the Department of
Defense concluded. However, there is still concern
Afghans named in the published documents could
be retaliated against by the Taliban.
The assessment, revealed in a letter from Secretary
of Defense Robert Gates to the Chairman of the
Senate Armed Services Committee, Sen. Carl Levin
(D-Mlchlgan), comes after a thorough Pentagon
review of the more than 70,000 documents posted
to the controversial vrfiistie-blower site in July.

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WHAT WOULD HAPPEN IF
EVERYONE CARED?

Adwrtisement

The letter, provided to CNN, was written August 16 by Gates in response to a query by the senator
regarding the leak of classified information.
Gates said the review found most of the information relates to "tactical military operations."
"The initial assessment in no way discounts the risk to nattonal security," Gates vfote. "However, the
review to date has not revealed any sensitive intelligence sources and methods compromised by the
disclosure."
The defense secretary said that the published documents do contain names of some cooperating
Afghans, who could face reprisal by Taliban.
"We assess this risk as likely to cause significant harm or damage to national security Interests o f t h e
United States and are examining mitigation options," Gates wrote in the letter. "We are working closely
with our allies to determine \ ^ a t risks our missbn partners may face as a result of the disclosure."
Gates also said there is still the possibility of more documents being published, for which the
Pentagon is preparing.
Over the summer, the Pentagon created a team of more than 100 personnel made up of mostly
intelligence analysts from various branches of the Defense Department as well as the FBI, who were
involved in the round-the-clock review.

WikiLeaks has approximately 15,000 more Afghanistan documents that the site Is reviewing because
they contain names or other sensitive information. While initially the site founder, Julian Assange, had
v o w d to publish the additk>nal documents after redaction, there Is now some question whether that
will happen given the intense criticism WikiLeaks came under after Afghan names were found in the
already published files.
rticles.cnn.com/2010-10-16/us/wiklleaks.assessment_1 Julian-a5sange-wikileaks-documents?_s=PM...

Gate^^jj^Leaks dont reveal key Intel, but risks remain - CNN '

/20/12

IMPACTIWOiyi
tJ^

22420

Additionally, WikiLeaks is ertpected to publish as early as next wsek about 400,000 military documents
from the Iraq war that were leaked to the site.
The leaking of the documents raised the immediate ire of military ofRcials, although soon after the
posting they questioned the documents' significance. Back in July, Chairman of the Joint Chiefs of
Staff Adm. Mike Mullen said he was "appalled" by the leak but said the documents were from previous
years up to 2009 and "much has changed since then.'
Despite this, the military vmmed that the naming of Afghans was a huge concem. WikiLeaks has "the
blood of some young soldier or that of an Afghan family" on their hands, Mullen said.
In additkan to the document review, the miWtary has launched a criminal investigation Bito the leak.
Since the initial pubiicatk>n of the documents, military officials consider Army Pfc. Bradley Manning a
prime suspect in the leak. Manning is already being held in Quantico, Virginia, charged with leaking
video of an Iraq airstrike to WikiLeaks and removing classified information from military computers.
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rticles.cnn.com/2010-10-16/usAwikileaks.assessment_1 Jullan-assange-wikileaks-documents?_S=PM.

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i^fl^i

B d ^ H w s - Wikileaks Iraq war documents: Hie key Issues

22422

BiBiC NEWS
US & CANADA
25 October 2010 Last updated at 13:28 ET

Wikileaks Iraq war documents: the key issues
', :'.-«^.\ '
The Wikileaks website has released some 400,000 secret US military files documenting the conflict In Iraq. A number of Issues
have been raised by their fiubiication, fbr example:
Should the documents have remained confidential?
Wikileaks founder Julian Assange says the mass release of documents reveals the truth about the conflict.
"The attack on the truth by war begins long before war starts, and continues long after a war ends," he said, adding that Wikileaks aims
"to correct some bf that attack".
Wikileaks says it will not disclose where or how it obtained the documents, and that any information which could have been used to
identify individuals or sources has been removed before publication.
The organisation says there is no evidence that anyone came to harm as a result of a similar, albeit much smaller, release of material on
the conflict in Afghanistan.
But the Pentagon has nevertheless said the documents wil be used by America's enemies and will endanger the lives of US personnel
serving in Iraq.
It says the reports are "initial, raw observations by tactical units".
"They are essentially snapshots of events, both tragic and mundane, and do not tell the whole story," press secretary Geoff Morrell said
in a statement. Moreover, he said, the release "does not bring new understanding" to the conflict.
The US has demanded that Wikileaks hand over the files and remove them from the internet
The UK's Ministry of Defence has also criticised the release.
Was the US military keeping a record of civilian deaths?

The US military has in the past denied that it has a record of civilian deaths in Iraq. It says that in the heat of batUe, casualty reports
given by troops, known as field, are not always reliable.
But the released documents show records were kept. The logs, kept and submitted by US military personnel, identify 109,000 violent
deaths between 2004 and the end of 2009.
These break down into 66,081 civilians, 23,984 people classed as "enemy", 15,196 members of the Iraqi security forces and 3,771
coalition troops. Some of the logs also contain the names of those who died.

..V

The Iraq Body Count (IBC) project wiiich has been monitoring civilian deaths throughout the conflict, still has a higher toll, and says it
has documented deaths which do not appear in the field reports or are not identified as being civilians.

/ww.bt>c.co.uk/news/wortd-us-canada-11617892?print=true

If

/20/12

38^^^^
S^^^^ws-Wikileaks
Iraq war documents: the key issues

22423

The Guardian nev^ispaper cites the case of US attacks against insurgents in the city of ^allu^ah in 2004-IBC details betw
1,362 such deaths during April and f^vember of thatyear.^ile the US field reports do not listany civilian dea^^^
I80^^^l^8^^roross^oh^f^lh^l^^l^^r^l^^^^i^o^t^o^t^ii^f^^,i^h8s
l-lemitDardagenar^ John Sloboda, of IB^, wrote in the Guardian thatkeeping such reports artd then nuking them av^ileble^
public wi^s"thecorrectthingtodo.bothfromamoralandapragmaticstandpolnt^^
The BBC'^ Paul ^ynolds says the reports appear to showthat despite official n^soivinos.militarv units are quite keen to
numbers and that these couk^ in future becompiled by somecentral counting system
Was it right fo^ US to dimply pass on reports oftorture and executions to the Iraqis^ rather than taking action?
Critics say the field reports are proof that US n^litary personnel stood by while Iraqi troops tortured end k^^
The US says its troops always acted in accordance v^th the UN Convention Against Torture and thatanyevit^nce of a b u s e s
"atthe appropriate levef^ to the Iraqi authorities, whowere then responsible for any discipline or retralni^^
The Iraqi governnient said there had been''violations''of official policy by its troops, but thatthe perpetrators had bee
appropriately.
Correspondents say Washington is coming under pressure to say D a l i t s official policy was.
The tJK Ministry of Defence has said there was "no place for n^streatntentof detainees" a i ^ that i t v ^ i d investigate^^
made against British troops.
The MoD said it had set upadedicated team to investigate all alleged cases of abuse by tlKser^ce personnel in Iraq.
The Impact o^the leaks or^ Iraqi politics
With Iraq in political deadlock since inconclusive elections in March, the BBC's Jim ^ i r in Baghdad says the Wikileaks a f l ^ i r s ^
to have further envenomed the political situation, making rapid rnovementtowards the formation ofanew^overnment even less
likely.
The t ^ c e of Prirrt Minister NouriMaliki-wtto is backed by the country's nnainShia coalition, the l ^ t i o n a l ^
leaks were laLmched or being e^^pk^ted to undermine his attemptto form that government
Many ofthe alleged at^ses occurred during the governn^nt of Mr Maliki.l^ny of his critics accuse him of representing S h i a s ^
interests.
The Sunni-l^ckedlraqiyabk^t^theforrneri^irneminister,lyadAllawi,clearly hopes the leaks mightstrengthenh^
narrow won the mostseats in the general election and Mr Allawi is d e n ^ d i n g a ^ O - ^ d i v i
govemment including^Maiiki.
Itseen^ unlikely the leaks ^11 produce more pressure from ordinary Iraqis on Mr Maliki to reachaconipromise with his p ^
Asour Baghdad correspondentsays, Iraqis do notseemto be unduly impressed by the Wikileaks deluge and the alleged links to dea^^
squads, ^ i c h had previously been reported.
d e l e g a c y o f t h e ove^hrowofSaddam
The toppling of Saddam l^ssein led tohim being tried and hangedforhisbrt^ltreatmentof some ofhis own people.
elections to be held.
That gave the Shiamaiority,viihich had been dorninated under Saddam by the Sunniminority,access to power.
Butitalsoledtoabloody insurgency involving the Sunnis, which lefttens of thousands dead.Thecor^ctdesce^
^ww.t^t^.co.uk/newe/i^^^orld-ue-CBnBde-11S1^SS2^^rint^e

2/

^

^
/20/12

A

22424

BB^^Pbs - Wikileaks Iraq war documents: the key Issues

warfare when Shia miNlant groups stmck back Mth a campaign of kidnappings and killings.
And, according to Britain's Guardian newspaper, that has left a legacy of torture, summary executions and war crimes. Iraq is a

country vt^ere abuses of prisoners and opponents are widely believed by its people to be happening, as they were in Saddamfs time.
The BBC's defence and security correspondent Nick Childs. says the leaks raise new questions about the behaviour of the new

Iraqi security forces, and about the US mlNlary's approach to them.

anada stories

JS economy growth forecast is cut f/newsfbugne5S-185?7347]
The US central bank cuts its forecast fbr economic growth in 2012 and takes steps to reduce long-term bonowtng costs.
Obema withhold* Fast end Furious Bias f/newrfworld^i>canadi-185244141
US to —lz« M m dlno—ur stototon Bn«wWworid-u»c»nsd»-1g5192ll61

BBC e 2012 The BBC is not responsible (or the content
oTaiesmal sites. Read more.

/ww.bbc.co.uk/hewsAwor1d-us-canada-11617892?pfTnt»true

3/



ATTACHMENT

22426

TUESDAY, AUG 17,2010 03:15 PM EDT

Are risks from WikiLeaks
overstated by government?
National Security Archive historian: "The Pentagon is hyping"
BY ROBERT BURNS, ASSOCIATED PRESS

Although the Pentagon warns that WikiLeaks could have blood on its hands for publishing
classified U.S. war documents that name Afghan sources, history shows that similar disclosures
have not always led to violence.
It is difficult to find clear-cut examples of the public exposure of informants leading to their
deaths, although there are documented cases of a deadly ending to the secret utunasking of
foreign agents. Recall the Aldrich Ames espionage case of the early 1990s: The now-jailed CIA
turncoat ratted on Soviet informants and at least nine of them were believed executed by the
KGB.
The WikiLeaks leak is unrivaled in its scope, but so far there is no evidence that any Afghans
named in the leaked documents as defectors or informants from the Taliban insurgency have
been harmed in retaliation.
Some private analysts, in fact, think the danger has been overstated.
" I am underwhelmed by this argument. The Pentagon is hyping," says John Prados, a military
and intelligence historian who worics for the anti-secrecy National Security Archive. He said in
an interview that relatively few names have surfaced and it's not clear whether their present
circumstances leave them in jeopardy.
Donald P. Gregg, a retired CIA officer and former U.S. ambassador to South Korea, said in an email exchange that the Pentagon's expressions of concem have merit in this case. But he also
said his own experience showed that being unmasked as a spy is not always deadly.
" I was named and publicly denounced as a covert CIA officer by East Germany in 1958, and no
one, to my knowledge, ever tried to assassinate me," Gregg said.
The Taliban itself, however, has said it is scouring the tens of thousands of leaked documents —
mostly raw military intelligence reports — for names of Afghans who sided with the U.S. and
NATO against the insurgency. Rep. Jane Harman, a California Democrat, said the leak amounted
to handing the Taliban an "enemies list."
"We know the Taliban are harsh and cruel in their treatment of disfavored persons, so it is
extremely serious," said Steven Aftergood, an anti-secrecy advocate who writes the Secrecy
News blog. "WikiLeaks is giving 'leaks' a bad name by putting people in jeopardy."

22427

Rep.^ush0.^olt,l^^..l.,whooppo^e^the^.^.war^frafeg^i^Afgha^^^fan,^a^dla^t
some ofthe leaked documents could result in "real harm to real people" — particularly defectors
from the Taliban who were interrogated and then released.
"Wemaypresume that afterthey are released from custody they and theirfamilies could be in
danger of assassination by other insurgents,"Holt wrote inastatementAug.lO.
In addition to any immediate securityriskto Afghans, administration officials say the leak
t^dermines the credibility ofU.S. promises to protect the identity ofinfbrmants. That in turn
could hamperU.S.intelligence efforts in the future.
Dne ofthe most spectacular cases ofexposing foreign agents was Philip Agee's 19^5 book,
"Inside the Company: CIA Diary."
AsafbrmerCIA officer, Agee identified in his book more than
agency officers, front
companies and foreign agents working fbrthe U.S. abroad. He wrote that this was "one way to
neutrally the CIA'ssupport to repression."
He is sometimes accused ofresponsibility in the death ofRichard Welch, the CIA station chiefin
Athens who was assassinated inl9^5byaGreek terrorist group. Agee and his friends say the
accusation is groundless, noting that Welch was not named in Agee'sbook and that Welch's
agency lir^ was publicly known.
His and subsequent exposure ofagents led Congress to pass the Intelligence Identities Protection
Act ofl98^, making itacrime to intentiortallyreveal the identity ofacovert intelligence officer.
Among the earliest expressions of outrage at the Afghan war leaks was from Adm. ^ike sullen,
chairmanoftheJointChiefsofStaff.HesaidhewasappalledatthejudgmentofWikiLeaks.org
website fbundJulian Assange and the unidentified provider ofthe secret documents.
"The truth is they might already have on their hands the blood ofsome young soldier orthat of
an Afghan family,"^ullentoldaPentagon news conference four days after the leak.
Defense Secretary Robert Gates said theU.S.hasamoral responsibility to "those who have
worked with and put theirtrust in us in the past, who nowmay be targeted forretribution."
Last week duringavisitaboardaNavy warship in San Diego, Gates toldasailorwho asked
about the seriousness of the WikiLeaks case: "Wedon't have specific information of an Afghan
being killed yet because of them. Butlput emphasis on the word'yet.'"
Gates'press secretary, GeoffMorrell, said the Pentagon is relaying names ofAfghans exposed in
the documents to U.S. military commanders in Afghanistan so they can "safeguard those
people."It'snotclearwhat steps the U.S. has taken to accomplish this.
The issue could be magnified by an expected WikiLeaks posting soon ofthousands of additional
leaked documents. Administration officials have said those could be even more compronusing.

22428

The vulnerability of locals who woik with U.S, forces — openly or secretly — is notjust an
issue in Afghanistan. A bipartisan group of congressmen and senators called on the Obama
administration last week to urgently expand efforts to resettle Iraqis who have worked for U.S.
agencies in Iraq, even saying an airlift should be considered. Many of the Iraqis will be targeted
for assassination by al-Qaida in Iraq, they said.
"Providing support for our Iraqi allies will advance U.S. national security interests around the
world, particularly in Afghanistan, by sending a message that foreign nationals w&o support our
work abroad can expect some measure of protection," the lawmakers wrote to Secretary of State
Hillary Rodham Clinton.



ATTACHMENT

flcH^e

/20/12

U.S offic^ipiew WikiLeaks release will do most harm yet | McClal

22430

McClatchy Washington Bureau
-

Print This Article

Posted on Sat, Nov. 27,2010

U.S. officials: New WikiLeaks release will do most harm yet
Nancy A. Youssef I McClatchy Newspapers
last Initiated: May U, 2012 05:17:42 PU
WASHINGTON — U.S. diplomats and officials said they're bracing Sunday for at least three newspapers and WikiLeaks to publish hundreds of
thousands classified State Department cables that could drastically alter U.S. relations with top allies and reveal embarrassing secrets about
U.S. foreign policy. - :
U.S. diplomats frantically have been reaching out to their counterparts around the world as intelligence officials pleaded with WkiLeaks and
the newspapers, including The New York Times, the Guardian in London and Der Spiegel, a German newsweekly, to not publish information
that could endanger lives and U.S. policy. Some of the documents are expected to reveal details about how some US. diplomats feel about top
foreign leaders.
While this is the third time this year that WikiLeaks has released a large batch of documents related to U.S. foreign policy, officials told
McClatchy that Sunday's expected release will be far more damaging than the first two combined.
The first batch dealt with Afghanistan and the second with Iraq. Both releases largely gave details about what many thought the U.S. military
was doing in those wars. This batch however, is expected to indude never released private cables between diplomats.
Publkly, State Department spokesman P.J. Crowley warned that releasing the documents could put "lives and interests at risk." But privately,
administration officials are far more concerned about what they contain and implications of releasing them.
NBC News reported Friday that some of the documents would reveal damaging details about U.S. efforts to renegotiate the START nuclear
arms treaty with Russia and U.S. anti-terrorism efforts in Yemen.
SpeculatitHi is rampant in Washington about what's in the documents.
Germany's Der Spiegel briefly published a story on its website Saturday saying that the documents include 251,287 cables and 8,000
diplomatic directives, most of which date after 2004. About 9,000 documents are from the first two months of this year, the newspaper said.
About 6 percent of the documents were classified as secret, the newspaper said before taking down its story. The majority was imclassified,
the newspaper said, but all were intended to remain confidential.
The newspaper said it would release all the documents at 4:30 p.m. EST. WikiLeaks and the newspapers are expected to release the
documents and theirfindingsat the same time. However, the release time has changed several times over the past few days.
Secretary of State Hillary Clinton reached out Friday to leaders in Germany, Saudi Arabia, the United Arab Emirates, Britain, France and
Afghanistan, Crowley said via Twitter. Diplomats throughout the State Department have spent days reaching out and warning allies of what's
coming.
Newspapers in Canada, the United Kingdom, Italy, India, Pakistan, Israel and Belgium, among others, said they expect the leaked documents
to include details about U.S. relations with their countries.
Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, toW CNN in an interview to be broadcast Sunday that: " I would hope that those
who are responsible for this would, at some point in time, think about the responsibility that they have for lives that they're exposing."
Although WikiLeaks hasn't said how it obtained the documents, U.S. officials think that Army Pfc. Bradley Manning, while a 22-year-old
intelligence office stationed in Iraq, downloaded thousands of documents, at times pretending he was listening to music by Lady Gaga.
Manning and other soldiers had access to the documents as part of an effort by the military to get as much information as possible to soldiers
on the battlefield about their communities so that they had the best intelligence possible.
Manning has been charged with illegally downloading thousands of classified documents and is being held in a military jail.
(Shashank Bengali contributed to this article from Baghdad.)
MORE FROM MCCLATCHY
Wikil-eaks revelations come as little surprise to many Iraqis
Sherrod and WikiLeaks: Journalism confronts media frenzv
McClatchy's national security blog: Nukes & Spooks
McClatchy's Middle East Diarv
McClatchy Newspapers 2010
/ww.mcclatchydc.corn/2010/11/27/v-print/104388/us-officials-new-wikileaks-release.html

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ATTACHMENT



22432

The New Yorker
November 29,2010

The Right to Secrecy
Posted by George Packer
What do we learnfromthe latest WikiLeaks dump, at least according to the Times''s privileged and heavily
edited account? That the Gulf Arabs are just as nervous about Iran's nuclear program as Israel is, and they
want the U.S. to stop it. That Saudi King Abdullah doesn't think much of Iraqi Prime Minister Maliki. That
Yemeni President Saleh is happy to claim American airstrikes against AI Qaeda targets as his country's own,
and that he doesn't mind whiskey being smuggled into Yemen as long as it's the good stuff. That the Chinese
govemment probably hacked into Google. That Qaddafi never goes anywhere without his Ukrainian "senior
nurse."
On the whole, the trove makes American diplomacy look pretty good. Obama's Iran strategy of engagementleading-to-isolation is shown to have succeeded. Bush—contrary to the impression left on every page ofhis
new memoir—had enough self-awareness about the disaster in Iraq to put the brakes on military action against
Iran. And American diplomats are capable of writing blunt, vivid, even amusing assessments of world leaders.
Berlusconi is feckless, Sarkozy thin-skinned, Mugabe a megalomaniac: the accounts seem spot-on. The
faceless corps of tight-lipped American embassy officials turn out to be an alert and discerning bunch.
Future diplomatic correspondence is going to be a lot more circumspect. The WikiLeaks dump contains (so
far) a number of minor embarrassments, a few surprises, a lot of confirmations of what we already pretty much
knew, and no scandals. It will make the work of American diplomacy harder for a long time to come.
Classification abuse will increase—more cables will be labelled "Top Secret" that should have been labelled
"Secret" or "Confidential." Exchanges between American officials and their foreign counterparts will grow
less candid and more opaque. The same with cable traffic between U.S. embassies and Washington. There is
an undeniable public interest in knowing, for example, that U.S. intelligence believes the Iranians are buying
advanced missilesfromNorth Korea, and that Gulf Arab rulers have been privately urging American military
action against Iran. The question is, does that interest outweigh the right of U.S. officials to carry out their
work with a degree of confidentiality?
Yes—theright.Lawyers, judges, doctors, shrinks, accountants, investigators, and—not least—journalists
could not do the most basic tasks without a veil of secrecy. Why shouldn't the same be true of those
professionals who happen to be govemment officials? If WikiLeaks and its super-secretive, thin-skinned,
megalomaniacal leader, Julian Assange (is he also accompanied everywhere by a Ukrainian senior nurse?),
were uncovering crimes, or scandals, or systemic abuses, there would be no question about the overwhelming
public interest in these latest revelations. But the WikiLeaks dump contains no My Lais, no black sites, no Abu
Ghraibs. The documents simply show State Department officials going about their work over a period of
several years. Will we get another update in six months? Will it be worth the damage? Should no govemment

22433

secretremain secret? Is diplomacy possible when official views have all the privacy of social networking?
Assange's stated ambition is to embarrass the U.S.This means that his ^oals and those of most journalists are
notthesame.WikiLeaksdoesn'ttroubleitselfwith these questions.The rest of us,joumalists included,
should.



ATTACHMENT 1

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Nation & World | Secretai|

ktate Clinton contacts countries a h e a d of W i k i L e a k s

Tile S u M s Times Company

S^eScattle^mes
Winner (if Eifthl Pulitzer Prt/es

22435

I Seattle T i m .

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PNB's Lucien PosUewaite
makes his exit
Pacific Northwest Ballet
principal dancer Lucien
Poslewaite will dance his last
performance with the company
on June 10 before joining Les
Ballets de Monte Carfo In
Monaco

0 ! 0 .1'-I

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g Share

Secretary of State Clinton contacts countries ahead of
Wll(iLeaks release
HEKfot'-it / Of Sfai.> HUary RoOhani Oinini; ii.-qs fRdrlKhJ ou' Ui Orrnany .jn-j 4 han.jfvji (if oihcr : a .-nj-ics h) • ont.-a'n ;iic tJ,pi.^»mu;
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ByMcClatchyTrlbune News Service

Seattle iiip.iiop artist riiymcs about
recent gun violence

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SPO audio: 911 call from Cafe Racer
after shootings

_

SPD audio: 911 call from wHnsss at t l h
& Seneca shooting
SPD radio audio: Cafe Racer suspact

WASHINGTON — Secretary of State Hillary Rodham
Clinton has reached out to Genmany and a handliji of
other countries to contain the diplomatic fallout ahead

Crime scenes from Seattle shootings

of the publication of classified cables and documents,

More videos >

the State Department said Saturday.
Q i n t o n contacted leaders in Germany, Saudi Arabia,

•ovEarnnta

the United Arab Emirates, France and A ^ h a n i s t a n ,
s p o k e s m a n PJ Crowley posted on his Twitter account.
According to eariier media reports, U.S. officials have
also contacted officials in Australia, Britain, Canada, Denmari(, Israel, Norway and others to discuss the
potential impact o f t h e unauthorized leak
W i k i L e a k s , the selHiroclalmed whistie-t)lower website, has Indicated it will publish neariy 3 million
documents. In the past, it has released secret papers through The New York Times, the Guardian and the
German magazine Der Spiegel. Tlie release is expected to take place within days but WikiLeaks has not
specified the timing.
The State Department is worried the inftxmation could include embarrassing details or communications atxiut
other countries.
The revelations could be 'haimfiil to the United States and our interests" and "are going to create tension in
relationships between our diplomats and our friends around the worid," Crawley said eariier this week.
The Wlkil_eaks release Is expected to be the largest leak e>er of classiiled documents. In Octotier,
WikiLeaks published neariy 400,000 classified U.S. military documents related to the war in Iraq. It had
previously published tens of thousands of military papers about A ^ h a n i s t a n .
The U.S. military arrested Pfc. Bradley Manning and transferred him to the United States in July in
connection with leaking classified material to WikiLeaks. U.S. authorities have not said whether Bradley was
behind the leaking of the Iraq war logs or the W h c o m i n g State Department documents.
Manning was working i ; an intelligence analyst In Iraq at the time of his arrest and reportedly had access to
classified material.
In hinting that a new release was Imminent, WikiLeaks said on Twitter a week ago that It will be "7x the size
of the Iraq W a r Logs." It has documented on its Twitter account press reports about the release and the
ongoing discussions between U.S. embassies and their host governments.
The State Department has also Informed Congress of the latest pending release, Crowley said. He
acknowledged that the State Department "has known all along" that WikiLeaks obtained the diplomatic
cat}les and was bracing for the publication.

eattletlmes.nwsource.com/html/nationworld/2013540252

wlklleaks28.html

0 0 22436

ATTACHMENT

/20/12

Clin^j^ikiLeaks Wont Hurt U.S. Diplomacy - CBS News

22437

December 2,2010 1:46 AM

Clinton: WikiLeaks Won't Hurt U.S.
Diplomacy
The recent leak of thousands of sensitive U.S. diplomatic cables will have no adverse effect on
America's international relations, U.S. Secretary of State Hillary Rodham Clinton declared
Wednesday at a security summit.
Clinton said she has discussed the revelations published on the WikiLeaks website with her
colleagues at a security summit in Astana, the capital of Kazakhstan. The event is the first major
intemational meeting of leaders and top diplomats since the memos began appearing on the
website and in numerous international publications earlier this week.
CBSNews.com Special Report: WikiLeaks
The secret U.S. Embassy memos published by WikiLeaks contain frank details on several leaders
attending the Organization for Security and Cooperation in Europe meeting in Astana.
"I have certainly raised the issue ofthe leaks in order to assure our colleagues that it will not in any
way interfere with American diplomacy or our commitment to continuing important work that is
ongoing," Clinton said.
"I have not any had any concerns expressed about whether any nation will not continue to work with
and discuss matters of importance to us both going fonA/ard," she added.
The Obama administration has harshly criticized the leaking ofthe cables, saying the details in
them could put lives at risk.
"I anticipate that there will be a lot of questions that people have every right and reason to ask, and
we stand ready to discuss them at anytime with our counterparts around the world," Clinton added.
Several officials at the summit echoed her comments.
British Deputy Prime Minister Nick Clegg, who met Wednesday with Clinton, released a statement
saying the "recent Wikileaks disclosures would not affect our uniquely strong relationship."
Kazakh Foreign Minister Kanat Saudabayev, commenting on leaked U.S. cables about top
officials in his own govemment, also said "this will have no bearing on our strategic relationship."
In an interview with Time magazine, WikiLeaks founder Julian Assange said Clinton "should
resign" if it's shown she ordered U.S. diplomats to gather infonnation on other foreign officials,
including those from the United Nations.
More on WikiLeaks
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ATTACHMENT

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: S ^ > <
Defense.gov News Transa^R>OD
News Briefing with Secretary Gates and Adm. 1 * ^ from the Pe.

22439

U S. Department of Defense

Office of the Assistant Secretary of Defense (Rjblic Affairs)

Nov/s (i\-jf;Scf;pL
On the Web:
httD://www.defense.Qov/Transcript5/TranscriDtasDx?TranscrtoaD=4728
Media contact: +1 (703) 697-5131/697-5132

Rjblic contact:
httD://www.defense.QOv/landinq/commentasDX
or +1 (703) 571-3343

Presenter: Secretary of Defense Robert M. Gates and Chairman, Joint Chiefs of Staff Adm. Mike
Mullen

Novemlwr 30,
2010

DOD News Briefing with Secretary Gates and Adm. Mullen from the Pentagon

SEC. GATES: Good afternoon.
This past February, I established a high-level working group to review the issues associated with implementing a
repeal ofthe "dont ask, dont tell" law regarding homosexual men and women serving in the military, and based on those
findings to develop recommendations for implementation should the law change. The working group has completed their
work, and today the department is releasing their report to the Congress and to the American public.
Admiral Mullen and Iwill briefly comment on the review's findings and our recommendations for the way ahead.
We will take some questions. And then the working group's co-chairs, General Counsel Jeh Johnson and Army
General Carter Ham. will provide more detail on the report, and answer any questions you might have on methodology,
data and recommendations.
When I first appointed Mr. Johnson and General Ham to assume this duty, I did so with the confidence that they
would undertake this task with the thoroughness, the seriousness, professionalism and objectivity befitting a task ofthis
magnitude and consequence. I believe that a close and serious reading ofthis report will demonstrate they've done just
thai We are grateful fbrthe service they have rendered in taking on such a complex and controversial subject
The findings of their report reflect neariy 10 months of research and analysis along several lines of study, and
represent the most thorough and objective review ever of this difficult policy issue and its impact on the American military.
First, the group reached out to the force to better understand their views and attitudes about a potential repeal of
the "dont ask, dont tell" law. As was made clear at the time and is worth repeating today, this outreach was not a matter of
taking a poll ofthe military to determine whether the law should be changed. The veryidea of asking the force to in effect
vote on such a matter is antithetical to our system of government, and would have been without precedent In the long
history of our idwiian-led military.
The president of the United States, the commander in chief of the arnied forces, made his position on this matter
clear, a position I support Our job as the civilian and military leadership ofthe Department ofDefense was to determine
how best to prepare fbr such a change should the Congress change the law.
Nonetheless, I thought it critically important to engage ourtroops and theirfamilies on this issue, as ultimately it
will be they who will determine whether or not such a transition is successful. I believe that we had to learn the attitudes,
obstacles and concerns that would need to be addressed should the law be changed. We could do this only by reaching
out and listening to our men and women in uniform and their families.
The working group undertook this through a variety of means, from a mass survey answered by tens ofthousands
of troops and their spouses to meetings with small groups and individuals. Including hearing from those discharged
under the current law.
Mr. Johnson and General Ham will provide more detail on the results ofthe survey of troops and theirfamilies.
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autinsummary,astrongmajorityofthose who answered the survey-more than two-thirds-do not objectto
gays and lesbians serving openlyinunlfbmi.The findings suggestthatfbrlarge segments ofthe military, repeal of"dont
ask, donttell,"thoughpotentiallydisruptive in the shortterm,would notbe the wrenching,traumatic change thatmanyhave
feared and predicted.
The data also shows thatwithin the combatarms specialties and units,there isahigherlevel of discontent of
discomfort and resistance to changing the current policy.Those findings and the potential implications f o r ^ e r i c a s
fighting fbrcesremainasourceofconcem to the service chiefs and to me. I'll discuss this later.
Second, the wori^ng group also examined thoroughlyall the potential changes to ^ e department's regulations
and policies dealing with matters such as benefits, housing, relationships within the ranks, separations and discharges.
As the co-chairs will explain Inafew minutes,the majorityof concerns often raised in association with the repeal-dealing
with sexual conduct fratemi^tion, billeting arrangements, marital orsurvivor benefits--could be governed byexistingla^
and regulations.
Easting policies can and should be applied equallyto homosexuals as well as heterose^als.Whilearepeal
would require some changes to regulations, the keyto success, as with mostthings military, is training, education, and,
above all,strong and principled leadership up and down the chain ofcommand.
Third,the woriting group examined the potential impactofachange in the law on militaryreadiness,including the
lmpactonunitcohesion,recn^iting and retention,and otherissues critical to the perfomiance ofthe force.Inmyview,
getting this categoryrightis the mostimportantthing we mustdo.
The U.S. armed forces are in the middle oftwomajormilitaryoverseascampalgns-acomplexand difficult
drawdown in l r a q , a w a r i n A ^ h a n i s t a n - b o t h o f w h i c h are putting extraordinarystress on those ser^ng on the ground and
their^milies. Itis the well-being ofthese brave young Americans,those doing the fighting and the dying since ^/t1,that
has guided everydedsionlhave made in the Pentagon since taking this postneariyfouryears ago. Itwill be no different
on this issue, lam determined to see thatifthe law Is repealed,the changes are implemented in s u c h a w a y a s to
m i n i m i s anynegativeimpacton the morale, cohesion and effectiveness ofcombatunits thatare deployed, aboutto
deploytothefrontlines.
With regards to readiness,the working group reportconcludedthatoverall and with thorough preparation-andl
e m p h a s i s thorough preparation-there Isalowriskfrom repealing "dontask,donttell."However,aslmentioned
eariier,thesurveydata showed thatahigherproportion-between 40 (percent) and ^Opercent-ofthose troops serving in
predominatelyall-malecombatspecialties-mostlyArmyand Marines,butincluding the Special Operations formations of
the Navyand the AirForce-predictedanegative effective on unit cohesion fi^om repealing the currentlaw.
Forthis reason,the uniform service chie^ are less sanguine aboutthewori^ing-than the woriting group about
the level ofriskofrepeal with regard to combatreadiness.
The ^ews ofthe chiefs were soughtoutand taken seriouslybyme and bythe authors ofthis report.Thechie^
will also have the opportunitytoe^laintheir-to provide their e^erimilitaryadvice to the Congress, as theyhave to me
and to the president Theirperspective deserves serious attention and consideration,as itreilects the judgmentof
decades ofe^erience and the sentimentofmanyseniorofficers.
In myview,the concerns ofcombattroops as e ^ r e s s e d in the surveydonotpresentan insurmountable barrierto
successful repeal of"dontask,donttell."This can be done and should be done withoutposingaserious risk tomilitary
readiness.However.thesefindings do lead me to conclude thatan abundance of care and preparation is required ifwe
are to avoidadisruptive and potentiallydangerouslmpacton the performance ofthose serving atthe tip ofthe spearin
^ e r i c a ' s wars.
This brings metomyrecommendations on the wayahead. Eariierthisyear,the House of^epresentatives
passed legislation thatwould repeal "dontask,donttell"afteranumberofsteps take place, the lastbeing certification by
the president the secretaryofDefense and the chairman thatthe new policies and regulations were consistentwith the
U.S. military's standards ofreadiness,effectiveness,unitcohesion,and recruiting and retention.
Nowthatwe have completed this review,lstronglyurge the Senate to pass this legislation and send itto the
presidentfbrsignature before theend ofthis year.
Ibelievethisisamatterofsomeurgencybecause,aswehaveseeninthepastyear,thefederalcourtsare
increasinglybecoming involved in this issue. Justafewweeks ago, one lowercourtruling forced the departmentinto an
abruptseriesofchangesthatwere no doubtconfusing and distracting to men and women in the ranks. Itisonlyamatter
oftimebefore the federal courts are drawn once more into the fray, with the veryrealpossibilitythatthis change would be
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imposed immediatelybyjudlcialfiat-by^rthemostdisruptive and damaging scenariolcan imagine, and one ofthe
m o s t h a ^ r d o u s to militarymorale, readiness and battlefield performance.
Therefore,itis importantthatthis change come via legislative means^thatis,legislation informed bythe review
justcompleted.Whatis needed isaprocessthatallowsforawell-prepared and well considered implementation-alcove
all,aprocessthatcarries the imprimatur ofthe elected representatives ofthe people ofthe United States.
Given the presentdrcumstances, those thatchoose notto actlegislativelyare rolling the dice thatthispolicywill
notbe abn^ptlyovertumed bythe c o u r t s . ^ e legislation presentlybefore the Congress would authori^arepeal ofthe
"dontask,donttell"pendingacertification bythe president secretaryofDefense and the chairman.Itwouldnotham^
militaryreadiness.
Nonetheless,Ibelievethatitwould be unwise to push ahead with full implementation ofrepeal before more can
be done to prepare the f o r c e - i n particular,those ground combatspecialties and units-forwhatcouldbeadisruptive
and disorienting change.
The working group's plan,withastrong emphasis on education,training and leader development providesa
solid road map forasuccessft^lfi^ll implementation of repeal,assuming thatthe milltaryis given sufficienttime and
preparation to getthejob done right.
The department has alreadymadeanumber of changes to regulations thatwithin easting law applied more
exacting standards to procedures, investigating orseparating troops forsuspected homosexual conduct-changes that
have addedameasure of common sense and decencytoalegallyandmorallyfraughtprocess.
Iwould dose onapersonal note andapersonalappeal.This is the second timethatlhavedealtwith this issue
a s a l e a d e r in publiclife,the prior case being in ClAin^^^^whenldirectedthatopenlygayapplicants be treated like all
otherapplicants^thatis,whether as individuals theymetour competitive standards.Thatwas and isasituation
signlficantlydifferent in circumstance and consequence than confronting-than that confronting the United States armed
forces today.
^ e w s toward gayand lesbian Americans have changed considerablyduring this period, and have grown more
accepting since "dontask,donttell"was first enacted, ^utfeelings on this matter can still run deep and divide often
starklyalong demographic, cultural and generational lines,not onlyinsocietyasawholebutin the uniformed ranks as
well.
Forthis reason,Iwould ask, as Congress takes on this debate, fbr all involved to resistthe urge to lure ourtroops
and their^milies into the politics ofthis issue. Whatis called for isacareful and considered approach,an approach that
to the extentpossible welcomes all who are qualified and capable ofserving their countryinunifonn,butonethatdoes not
undermine out ofhaste or dogmatism those attributes thatmake the U.S.militarythefinestfighting force in the world.
The stakes are too high foranationunderthreatforamilitaryatwar.to do anyless.
Admirers
ADM.MUttEN:Thankyou,Mr.Secretary.
I, too, wish to thank Jeh Johnson and Carter Ham, as well as everyone involved in the working group,fbrtheir
extraordinaryefforts overmuch ofthe pastyear. Ifullyendorsetheirreport its findings and the implementation plan
recommended bythe woriting group.
Thewori^inggroupwasgivenatallorder-indeed,nothinglessthanproducingthefirsttrulycomprehensive
assessment ofnotonlythe impact of repeal ofthe law governing "dontask,donttell,"butalsoabouthowbestto
implementanewpolicyacross the jointforce.As the secretaryindicated,the woriting group surveyed ourtroops and their
spouses,consulted proponents and opponents ofrepeal,and examined militarye^erience around the worid.Theyalso
spoke with ser^ng gays and lesbians,as well as formermembers ofthe militarywho are gayand lesbian.The resultis
one o f t h e m o s t e ^ a n s i v a studies ever done on militarypersonnel issues,andlapplaud the timethatwas taken to arrive
atsolid,defensible conclusions.
More criticallylwas gratified to see thatthe working group focused theirfindings and recommendations,rightly,
on those who would be mostaflectedbyachange In the law:ourpeople,all ofourpeople.And so forthe firsttime,the
chiefs andlhave more than justanecdotal evidence and hearsayto inform the advice we give our dvilian leaders. We've
discussed this issue extensivelyamongst ourselves and with the secretary, and the c h i e ^ a n d l m e t w i t h the presidentas
recentiyas yesterday.
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lonlywantto add three points to whatthe secretary's alreadylaid out
Pirstlthlnklfsnoteworthythatthe woriting group found strong leadership to be the single mostimportant^ctorin
implementing anyrepeal.Thatmaysound^iriyobvious,butitisakey critical point
We all have ouropinions,and those opinions matter.This is withoutquestionacomplexsocial and cultural
issue. Sutatthe end ofthe day, whateverthededsionofourelected leaders maybe,we in uniform have an obligation to
follow orders. When those orders involve signlficantchange such as this would, we need to find ways to lead the way
fon^ard. Ourtroops andthelr^miliesexpectthatfrom us,andlthinktheAmerican peopledoas well.
Second,we've heard loud and dearthatourtroops also e^ectus to maintain high standards ofconductand
professionalism,both as we move fbn^ard in ^is debate and should repeal occur.Wetreatpeople with dignityand
respectin the armed forces,orwedontlastlong.No spedal cases,no special treatment ifwe're going to continue to
comportourselves with honorand hold ourselves accountable across the board to impeccablyhigh standards, repeal or
no repeal.
Finally, the reportshowsthathowever low the overall risk ofrepeal maybe with respectto readiness,cohesion
and retention,itis notwithoutits challenges. We can bestaddress those challenges byhavingitwithin our power and our
prerogative to manage the implementation process ourselves.
Should repeal occur,lshare the secretarys desire thatit come aboutthrough legislation-through the same
process with which the lawwas enacted,ratherthan precipitouslythrough the courts. Ifurther hope thatsuch debate In the
Congress will be as fullyinformed bythe good work done in this reportasmyadvice to the secretaryand to the president
Thank you.
0:SecretaryGates,you said itwould be unwise to proceed with repeal until there is more groundwork.Howlong
doyouenvislonthatprocesslasting7 And Is thisaconcemandarecommendationthatis shared bythe White House I n a s ^ r a s once Congress acts there still beingaperiod in which the policyis in placed
Admiral Mullen,do you also share thatrecommendation^
SEC. GATES: Well, firstof all, justto be dear,whatwe're talking aboutis that should the Congress vote^repeal
the law, whatwe are asking foris the time subsequenttothatto prepare adequatelybefore the change is implemented in
the force. How long thatwould take,franklyldontknow.There is the-the report as you will see in the implementation
plan,lays outan ambitious agenda ofthingsthatneed to be done, including notonlyleadership training buttraining ofa
militaryfbrceofover^million people.
Iwould saythis.lthinkwe all would e^ectthatlfthls law Is implemented,the presidentwouldbe-is-lfrepeal
is passed,the presidentwould be watching verydoselyto ensure thatwedontdawdleortrytoslow-n^ll this.Solthink his
e^ectation would be thatwe would prepare as quicklyas we properlyandcomprehensivelycould, and then we would be
inaposition to move toward the certification. Suthowlong thatwould takelthink-ldontknow.
ADM. MUI^tEN:Therewili-there will be level-there isalevelofriskhere,as is laid outin the report Andl
would hope you spend as much time on the implementation plan as the report t^ecause the implementation plan certainly
from all the mllltaryleadership is stronglyendorsed should this law change.
And Itis in thatimplementation plan thatthe risklevelsaremitigated,and prindpallymitigated through leadership
-certalnlythe training,the guidance,butthe engagement ofthe leadership. And having enough time todo thatis critically
importantas we would lookatimplementation.Thafswhatreallymltigatesanyrisktharsoutthere.
0:Mr.Secretary, you said the chiefs are less sanguine than the working group. Whatspecificallyhavetheytold
you abouttheirconcerns^Andwhyinatimeofwaracceptanyincrease in the level ofrisk^
SEC.GATES: Well,the chie^ will speakforthemselves on Friday. And the chairman has spentmuch more time
with them thanlhave on this. Ithink-lthinkifs^irtosaythattheirconcems revolve around stress onafbrceafterneariy
lOyears ofwar. Andlthinktheyare concerned aboutthehlgherlevelsofnegatlveresponsefrom the ground combatunlts
and the Special Operations units thatlhave talked aboutinmy-inmyremari^s.
Ithinkthat-lwould justlike togo back and underscore the chairman's pointand thatis the level ofriskis tied
intimatelyto the qualityofpreparation. And todo this-solguesslwouldputitthis way Ifacourtorderedustodothis
tomorrow,lbelieve the force-theriskto the force would be high,ifwe had no time to prepare.
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Ifwe have plentyoftime to prepare the force, to prepare the leadership,Ithink the more effectivelywe do that
preparation the lowerthe risk.
Chairman^
ADM.MUI^t^EN:l've engaged, actually, manymanytimes with the chie^ overthe l a s t - o v e r t h e l a s t m a n y
months,and so we've had very, veryextensive discussions aboutthis. And from the standpointofachange in the l a w - l
mean,myperspective is,as whatlwould call my-certainlywasmypersonalopinion,is now myprofessionalview,that
this isapolicychangethatwe can make.And we can do itinarelativelylow-riskfashion,given the time and given the
abilityto mitigatewhateverriskisoutthere through strong leadership.
In ^ c t p a r t o f t h l s is the factthatwe have been atwarforso long.We h a v e - o n e ofthe discussions aboutthis is
affecting combateffectiveness or combatreadiness. I've never been associated withabettermilitarythan we are rightnow
and bettermilitaryleaders. Andlhave tremendous confidence thatshould this change, thattheyil be able to impiementit
veryspedfically.
0:That'slrue,butwhatabouttheotherchie^7
ADM MUtl^EN:Well,again,the chiefs will speakfbrthemselves on Friday
0:Mr.Secretary, you raised the issue ofcombatam^s,and the reportshowsthatofthose polled,50 percentin
Armycombatarms are opposed,^Opercentin Marine combatarms.And there's also the issue ofchaplains.The report
says thatthere'sverystrong opposition among the chaplains there as well.
Whatwould you sayto both groups^ Howwould you deal with this with both groups^
^

^
SEC.GATES: Well,the Interesting-one ofthe otherconsiderations in this thatthe-thatthereportrevsaled Is
even in combatarms units,those w h o - a m o n g those who believed theyhad served withagayperson before,the level of
comfortwith going forward was something like ^0 percent
Sopartoflhisisaquestionofun^miliarity. Partofitis stereotypes. And part ofitisjustsortofinherent
resistance to change when y:^udontknowwhafs on the other side.
And solthlnk-lthinkthatthecontrastbetween the significantlevelsofconcemforthose who h a d - w h o said
theyhadneverserved with someone who is gayas opposed to those who had is an importantconsideration. autwhati
would sayto them is,you know,frankly ifthe Congress ofthe United States repeals this law,this is the will ofthe
American people, and you are the American military, and we will do this, and we will do itright and we will do everything in
our powerto mitigate the concerns thatyou have.
0 : ^ d on the chaplains^
SEC.GATES: S a y i n g 0:Thereport-(inaudible)-averylargenumberviewhomosexualityasasin or an abomination.

SEC.GATES: And the report-the report identifies thatthe chaplains alreadyserveinaforcemanyofwhose
members do notsharethelrvalues,who do notshare their b e l i e f . A n d there is an obligation to care for all.Sutitalso is
clearthatthe chaplains are not going to be asked to teach something theydontbelieve in.And s o l t h i n k t h a t t h e - l t h i n k
thereportisprettydearonthat
0 : T h a n k y o u . Non-"dontask,donttell" question quicks
SEC. GATES: Sure.
0:Wikiteaks.Post-Wikileaks reaction. Whafsyoursense on whetherthe information-sharing dimate and
environment created after^^^^to encourage greatercooperation and transparencyamong the intelligence communities
and the militaryled to these three massive data dumps'^
And how concerned are you nowtheremaybe an oven^eaction to damp down on in^rmation dispersal because
ofthe dlsdosures^
SEC. GATES:One ofthe common themes thatlheard from the timelwasasenioragencyoffidal in the eariy
^080s in everymilitaryengagementwe were in was the complaint ofthe lack of adequate intelligence support.Thatbegan
to change with the GulfWarin^^^^,butitreallyhas changed dramaticallyafter^^^^.
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And deariythe finding thatthe lack ofsharing ofinformation had prevented people from,quote^unquote,
"connecting the dots"led to much widersharing ofinformation, andlwouldsayespedallywidersharing ofinformation at
the front so thatno one atthefrontwasdenied-in one ofthe theaters,A^hanistan or Iraq-was denied anyinformation
thatmi^htpossiblybe helpful to them.Now,ob^ously,thataperturewenttoo wide.There's no reason fbrayoung officer
atafbrward operating postinA^hanistan to getcables having todowith the STAI^T negotiations.And so we've takena
numberofmitigating steps in the department Idirectedanumber ofthese things to be undertaken in August
Firstthe-an automated capabilitytomonitorwori^stationsforsecuritypurposes. We've gotabout^O percent of
thisdone.mostlyin-mostlystateside. And I've directed thatwe accelerate the completion ofit
Second,aslthink you know, we've taken steps in CENTCOMin September and now everywhere to directthatall
CD and DVD write capabilityoffthe network bedisabled.We have-we have done someotherthings in temisoftwo-man
policies-whereveryou can move information fromadassified system to an undassified system,to haveatwo-person
policylhere.
^ d then we have some longer-term efforts underwayin which we can-and,firstofall,in which we can identify
anomalies,sort oflike credit card companies do in the use ofcomputer^ and then finally, efforts to actuallytailor access
depending on roles.
8utletmesay-letme address the latterpartofyourquestion.This is obviouslyamassivedumpoflnfonnation.
First of altlwouldsayunlike the Pentagon Papers,one ofthe things thatis importantlthink, in all ofthese releases,
whether it's Afghanistan,Iraq orthe releases this week, is the lack of anysignificant difference between whattheU.S.
govemmentsa^publidyandwhatthese things show privately whereas the Pentagon Papers showed thatmanyin the
govemmentwerenotonlylying to the ^ e r i c a n people, theywere lying to themselves.
Sutletme-letme justoffersomeperspective as somebodywho's been atthisalong time. Everyother
govemmentin the worid knows the United States govemmentleaks likeasieve,and ithas fbralong time.^dldragged
this up the other daywhenlwas looking at someofthese prospective releases.^d this isaquote from John Adams:
"How canagovemmentgo on,publishing all oftheir negotiations with foreign nations,Iknow not"
Tome, Itappears as dangerous and pernicious as itis novel."
When we wentto real congressional oversight ofintelligence in the mid-'70s,there wasabroadviewthatno other
foreign Intelligence service would evershare information with us again Ifwe were going to share it all with the Congress.
Those fears all proved unfounded.
N o w . l ^ heard the impactofthese releases on ourforeignpolicydescribedasameltdown,asagame-changer,
and soon.Ithink-lthinkthose descriptions are fairiysignificantlyoverwrought The ^ctis,governments deal with the
United States because irs in theirinterestnotbecausetheylike us, notbecausetheytrustus, and notbecausethey
believe we can keep secrets. Manygovemments-some governments deal with us because theyfearus,some bet:^use
theyrespectus,mostbecause theyneed us. We are still essentially, as has been said before, the indispensable nation.
So othernations will continue to deal with us.Theywill continue to wori^ with us. We will continue to share
sensitive information with one artotl^er.

Isthisembarrassing^yes. Is itawkward^^es. Consequences fbrU.S.fbreignpolicy7 Ithink^lriymodest
O: And on thatsame subject. On thatsamesubjectDid either ofyou reach outtoanyofyour counterparts in
ad^nce ofthis leak and warn them,or even apologia in advance fbrwhatmightcomeout7
SEC.GATES:ldldnt.
ADMMUttEN:ldid
0: Whowasit7
ADM.MUI^I^EN:ToGenerall^ayani in Pakistan.
SECGATES:^eah7
0:Sir,you've said that-youknow,on"dontask,donttell"-you've said thatnow is the time todo this,largely
because ofthe threatoflegal action. I'm justwondering,ifthatlegal action wasntlooming,howmuch do you think thatthis
w o u l d — t h i s is the rightthing t o d o now7

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And I'm wonderlngjusthow hard you intend to lobbythose on the Hill togetthem to swayto the otherslde.
SEC. GATES: Well,you know,ldontspend much time thinking aboutthe worid a s l w i s h l t w e r e . T h e r e a l i t y i s the
courtissueisoutthere,and,inmyview,doeslendurgencytothis.
^ou know, the question w a s - h a s been raised,well, maybe the courts would give us time,to which myanswer
is,maybe, maybe not We justdontknow.Sutthe one path we know gives us the time and the fle^bilityto do this is the
legislative path. Andldontknowhowfastthet:^urts are going to move on this,butwhatwe've seen seems to be more
and more action in the courts in the lastyearortwo. And thafsv^atgivesmeasenseofurgencyaboutMygreatestfear
is whatalmosthappened to us in October,and thatis being told to implementachangeofpolicyovemight
0 : ^ e a h . ^ . S e c r e t a r y , Senator McCain is now arguing thatthis reportis the wrong report, and thatitwontgetto
the bottom o f h o w t h i s c o u l d - t h e repeal could affectunitcohesionormorale. I'm wondering ifyou orAdmiral Mullen have
anyreaction to thatresponse to the report.
SEC. GATES: W e l l , I t h i n k - l t h i n k t h a t in this respect-andlobviouslyhavealotofadmiration and respectfbr
SenatorMcCain-butin this respectlthinkthathe's mistaken. Ithinkthisreportdoesprovideasound basis formaking
decisions on this law.
Now.people can draw dif^rentcondusionsoutofthls report the comments,for example, in t h e - i n the
evaluation in the reportofthehigherlevelsofconcemfor-among the combatants units and in the Marine Corps and so
on.
So people can read this and potentiallycome to differentcondusions,butin terms ofthe data and in terms ofthe
views ofthe force, it's hard forme to imagine thatyou could come up withamore comprehensive approach.
We h a d - w e had something on the order of^45,000 people in unifonnanswerthe questionnaire, the survey. We
had something on the orderof4(^^,000)to 45,000 spouses respond to t h e - t o t h a t s u r v e y T e n s ofthousands ofpeople
reached in othi^rways.Solthlnkthere is nocomparable source ofinfonnationordata on attitudes in the force than this
report and Ifs hard forme to imagine another effbrttakingamuchdifferentapproach than this report did.
ADM. MUtl^EN: And its main thrustwas on combateffectiveness, mission effectiveness, readiness, unit
cohesion,etcetera. And thatdata-again,lagree with the Secretary, you can certainlypickpartsofitthatread-you might
wantto read differently. Sutthedata's verycompelling,in particularwithrespectto those issues. Imean,thatwas the
main reason fbrthe report
0 : Iwonderifyou could talkalittlebitmoreabouthow you would see this implemented and whatyou mean by
giving time. For example, would you,say, nothaveopenlygay-ifthe law is changed,would you notputopenlygay
servicemembers into units thatunitsthatareabouttodeploytoA^hanlstan in ^ 0 ^ 1 o r s o 7 Would y o u - w o u l d you t a k e would you integrate the non-combat-anns units first7 lmean,what-couldyoudescribealittlebitmoreofwhatyour
implementation plan would be^
SEC.GATES: Well,first ofall, the repeal ofthe law would not a s l u n d e r s t a n d i t - n o w I'm n o t a l a w y e r - b u t a s i
understand i t - a n d maybe Jeh Johnson can address this question foryou more authoritativelywhen he comes up here.
Sutaslunderstand it until we certify, until the president the secretaryofDefense and the chaimian ofthe Joint
C h i e ^ c e r t i f y t h a t w e - t h a t t h e U.S. militaryisreadytoimplementthelaw,the repeal,the existing-thecun^entlyexisting
rules would continue to apply. And so you would haveaperiodofpreparation,ifyou will,that aslindicatedeariler,ldont
know necessarilyhow long thatwould take.
ADM. MUtl^EN: And,Julian-and from myperspective,we are one military. We are onemilitary.
SEC. G^rES:Two more questions.^eah.
0 : ^ . S e c r e t a r y , you have spoken quite deariyabouthow you supportthe president's position on this,and how
you're urgingthe Senate to act and howthis needs to be done in an orderiyand measured way
Sutybuhaventsaid so much overtimeaboutyourpersonal beliefs on "dontask,donttell."Do you feel
personallythatifs been unjustorwrongfbrgays and lesbians notto be able to serve theircountryopenly70rare you
comfortable with the idea ofopenlyintegratingthemilitary7
SEC. G A r E S : l t h i n k t h a t - i n m y v i e w - o n e ofthe things thatis mostimportantto me is personal integrity. Anda
policyoralawthatineffectrequires people to lie gives m e - g i v e s m e a p r o b l e m . A n d s o l t h i n k i f s - l m e a n , w e spenda
lotoftime in the militarytalkingaboutintegrityand honor and values.
Bww.defense.gov/titllity^prtntitetn.espx7prinl^http://www.defense.gov/trartscripts/transcnpt.aspx7^

7^

^y2CM2

Defense.gov News Tran^^^ 000 News Briefing with Secretary Gates and Adm.^^frotri the Pe...

22446

Telling the truth is a pretty important value in that scale. Ifs a very important value. And so for me, and I thought the
admiral was - that Admiral Mullen was eloquent on this lastFebmary- a policy that requires people to lie about
themselves somehow seems to me fundamentally flawed.
Last question.
Q: Eariier in the process. General Conway, when raising concerns aboutthis, floated the idea of separate
barracks and said that, you know, Marines might not be comfortable sharing barracks with openlygaytroops. Is that even
on the table, or is that - would the idea of separate barracks, separate housing, separate showers just be off the table?

^

SEC. GATES: We can get into the details of that - or you can with Jeh and General Ham. Butthe bottom line of
the report is no separate fadllties.
Thank you.

/ww.defBnse.gov/titiHty/|>f1ntitem.aspx7pr1nt«http7Aivww.defiBnse.gov/tFansc(4^^

8*

0 22447

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE REQUESTED
v. INSTRUCTION:

SPECIFICATIONS 13 AND 14 OF
MANNING, Bradley E., PFC CHARGE II
U.S. Anny,
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 22 June 2012
Fort Myer, VA 2221 I

1. The defense requests the following instructions to be given to the panel regarding
Speci?cations 13 and I4 ofCharge ll:'

Court Instructions

In Speci?cation 13 and Speci?cation 14 of Charge II, the accused is charged with the offense of
Exceeding Authorized Access to a Computer, a violation of I8 U.S.C. Section lO30(a)(l). To
?nd the accused guilty of this offense with regards to Speci?cation 13, you must be convinced
by legal and competent evidence beyond a reasonable doubt of the following ?ve (5) elements:
(I) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 28 March 2010 and on or about 27 May 2010, accessed a computer with authorization, but
exceeded his authority in accessing the information in question on a Secret Internet Protocol
Router network computer;

(2) That the accused knowingly exceeded his authorized access;

(3) That the accused, by means of such conduct, obtained infonnation protected against
unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data
to wit: more than 75 classi?ed United States Department of State cables, with the intent to use
such infonnation against the interests of the United States;

(4) That the accused willfully communicated (or delivered or transmitted or caused to be
communicated, delivered or transmitted or attempted to communicate, deliver or transmit) the
information obtained to a person not entitled to receive it (or willfully retained that information
and failed to deliver it to the of?cer or employee of the United States entitled to receive it); and

?This motion does not propose instructions on any potential lesser-included offense (LIO) for the Section lO30(a)(l)
violations alleged in Speci?cations 13 and 14 of Charge ll because the Government has not yet identi?ed the act that
would constitute the L10. However, regardless of the act identi?ed by the Government, the Defense submits that
any LIO ofthese offenses would be akin to a violation ofArtiele 92, UCMJ, and would accordingly carry a
maximum penalty of two years imprisonment.

Emarrgg U195)
Pnge__I_ofP8ae(s) 5

Court De?nitions



(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order
and discipline in the armed forces and was ofa nature to bring discredit upon the armed forces.

Authority: 18 U.S.C. 1030(a)(1); United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en
banc); United States v. Alyenikov, 737 F.Supp.2d 173 (S.D.N.Y. 2010); Military Judges
Benchbook, DA Pam 27-9; Eighth Circuit: Eighth Circuit Model Criminal Jury Instruction
6.l8.1030A. Ninth Circuit: Ninth Circuit Model Criminal Jury Instructions 8.95. Eleventh
Circuit: Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction

Similarly, to find the accused guilty ofthis offense with regards to Specification 14, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following ?ve (5)
elements:

(1) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 15 February 2010 and on or about 18 February 2010, accessed a computer with
authorization, but exceeded his authority in accessing the information in question on a Secret
Internet Protocol Router network computer;

(2) That the accused knowingly exceeded his authorized access;

(3) That the accused, by means of such conduct, obtained information protected against
unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data
to wit: a classified Department of State cable titled ?Reykjavik 13,? with the intent to use such
information against the interests of the United States;

(4) That the accused willfully communicated (or delivered or transmitted or caused to be
communicated, delivered or transmitted or attempted to communicate, deliver or transmit) the
information obtained to a person not entitled to receive it (or willfully retained that information
and failed to deliver it to the officer or employee of the United States entitled to receive it); and

(5) 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.

Authority: 18 U.S.C. 1030(a)(1); United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en
banc); United States v. Alyenikov, 737 F.Supp.2d 173 (S.D.N.Y. 2010); Military Judges
Benchbook, DA Pam 27-9; Eighth Circuit: Eighth Circuit Model Criminal Jury Instruction
6.I8.1030A. Ninth Circuit: Ninth Circuit Model Criminal Jury Instructions 8.95. Eleventh
Circuit: Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 42.1.

(1) Exceeding Authorized Access to a Computer

The first element that the government must prove beyond a reasonable doubt is that the accused
accessed a computer with authorization, but exceeded his authority in accessing the information
in question. I



In this case, the government charges that the accused, while authorized to access the computer,
exceeded his authority in accessing the information in question. Under the statute, this requires
that the government prove beyond a reasonable doubt that the accused had access to the
computer, and used that access to obtain or alter infonnation in the computer that the accused
was not entitled to obtain or alter. In other words, the term ?exceeds authorized access? applies
to ?inside hackers?, individuals whose initial access to a computer is authorized but who access
unauthorized information or files.?

This element is not satisfied by mere misuse or misappropriation of information that the accused
was authorized to access. Nor does it apply where the accused accesses information that he was
authorized to access, but in an unauthorized manner. Rather, this element is only satisfied where
the accused is authorized to access the computer and obtains or alters information on that
computer that the accused is not entitled to obtain or alter.

If you find that the accused had authorization to access the computer and to obtain the
infonnation, you must find the accused not guilty.

Authority: 18 U.S.C. lO30(e)(6); H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 22 (1984);
United States v. Nasal, 676 F.3d 854 (9th Cir. 2012) (en banc); United States v. Alyenikov, 737
F.Supp.2d 173 (S.D.N.Y. 2010).

(2) Knowing Conduct
The second element that the government must prove beyond a reasonable doubt is that the

accused acted knowingly in exceeding his authorized access to the computer.
?Knowingly? means to act voluntarily or deliberately, rather than mistakenly or inadvertently.

The question of whether a person acted knowingly is a question of fact for you to detennine.
The question involves the accused?s state ofmind.

As a practical matter, then, in order to sustain the charges against the accused, the government
must establish beyond a reasonable doubt that the accused knew that he was exceeding
authorized access in accessing the information.

If you find that the accused did not know he was acting without authorization (or exceeding
authorization) or that the accused actually believed he was acting with authorization (or within
his authorization), then you must find the accused not guilty.

Authority: 18 U.S.C. 1030(a)(1); H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 20 (1984);
United States v. Nasal, 676 F.3d 854 (9th Cir. 2012) (en banc); United States v. Alyenikov, 737
F.Supp.2d 173 (S.D.N.Y. 2010); Eighth Circuit: Eighth Circuit Model Criminal Jury Instruction
6.l8.1030A. Ninth Circuit: Ninth Circuit Model Criminal Jury Instructions 8.95. Eleventh
Circuit: Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 42.1.

(3) Obtaining Protected or Restricted Information
The third element that the government must prove beyond a reasonable doubt is that the accused

obtained infonnation protected against unauthorized disclosure for reasons of national defense or
foreign relations or any restricted data, with the intent to use such information against the
interests of the United States.



The United States may detennine that information requires protection against unauthorized
disclosure for reasons of national defense or foreign relations either by Executive Order or by
statute.

The government must also establish beyond a reasonable doubt that, at the time he obtained the
protected or restricted information, the accused had reason to believe that the infonnation could
be used against the interests of the United States or to the advantage of a foreign nation.

If you ?nd that the information allegedly obtained by the accused was not protected against
disclosure for reasons of national defense or foreign relations and was not restricted data, or that
the accused did not have a reason to believe that the infonnation could be used
interests of the United States or to the advantage of a foreign nation, you must find the accused
not guilty.

Authority: 18 U.S.C. l030(a)(l); H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 21
Eighth Circuit: Eighth Circuit Model Criminal Jury Instruction Ninth Circuit:
Ninth Circuit Model Criminal Jury Instructions 8.95. Eleventh Circuit: Eleventh Circuit Pattern
Criminal Jury Instructions, Offense Instruction 42.1.

(4) Willfullv Communicated of Improperly Obtaiged Information

The fourth element that the government must prove beyond a reasonable doubt is that the
accused willfully communicated (or delivered or transmitted or caused to be communicated,
delivered or transmitted or attempted to communicate, deliver, transmit) the protected or
restricted infonnation obtained to any person [or entity] not entitled to receive it (or will?illy
retained that information and failed to deliver it to the officer or employee of the United States
entitled to receive it).

To act willfully means to act knowingly and purposefully, with an intent to do something that the
law forbids, that is to say, with a bad purpose either to disobey or disregard the law. There is no
requirement that the accused acted for financial gain.

If you find that the accused did not willfully communicate (or deliver or transmit or cause or
attempt to communicate, deliver, or transmit) the protected or restricted infonnation to a person
or entity not entitled to receive it, you must find the accused not guilty.

Authority: 18 U.S.C. l030(a)(l); Eighth Circuit: Eighth Circuit Model Criminal Jury
Instruction 6.l8.l030A. Ninth Circuit: Ninth Circuit Model Criminal Jury Instructions 8.95.
Eleventh Circuit: Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 42.1.

(5) Preiudicial to Good Order and Discipline and Service Discrediting Conduct

The final element of the offense that the government must establish beyond a reasonable doubt is
that the accused?s conduct was prejudicial to good order and discipline and of a nature to bring
discredit upon the armed forces.

?Conduct prejudicial to good order and discipline? is conduct which causes a reasonable direct
and obvious injury to good order and discipline. ?Service discrediting conduct? is conduct
which tends to hann the reputation of the service or lower it in public esteem.

22450



If you ?nd that the accused?s conduct was not prejudicial to good order and discipline and/or was
not of a nature to bring discredit upon the armed forces, you must ?nd the accused not guilty.

Authority: Military Judges? Benchbook notes under Article 134

2. The Defense respectfully requests the above instructions and de?nitions be given by the
Court.

Respectfully submitted,

6/

DAVID EDWARD COOMBS
Civilian Defense Counsel



IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE REQUESTED
v. INSTRUCTION:

SPECIFICATIONS 2, 3, 5, 7, 9, 10,
MANNING, Bradley E., PFC 11 AND 15 OF CHARGE II
U.S. Anny, -
Headquarters and Headquarters Company, U.S.
Amy Garrison, Joint Base Myer-Henderson Hall, DATED: 22 June 2012
Fort Myer, VA 2221 I

I. The defense requests the following instructions to be given to the panel regarding
Speci?cations ofCharge ll:

Court

In Speci?cations Charge II, the accused is charged with the offense
of Espionage, a violation of I 8 U.S.C. Section 793(e). To find the accused guilty ofthis offense
with regards to Specification 2, you must be convinced by legal and competent evidence beyond
a reasonable doubt of the following five (5) elements:

(I) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 15 February 2010 and on or about 5 April 2010, have unauthorized possession of (or
control over or access to) information;

(2) That the information was relating to the national defense, to wit: a video file named JUL
07 CA ENGAGEMENT ZONE 30 GC Anyone.avi?;

(3) That the accused knew or had a reason to believe that the named video could be used to the
injury ofthe United States or to the advantage of any foreign nation;

(4) That the accused willfully communicated (or delivered or transmitted or caused to be
communicated, delivered or transmitted or attempted to communicate, deliver or transmit) the
named video to [a person or entity], who was not entitled to receive it; and

(5) 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.

Authority: 18 U.S.C. 793(e). Ninth Circuit: United States v. Lee, 589 F.2d 980 (9th Cir.
1979); Military Judges Benchbook, DA Pam 27-9.

I
APPELLATE W)

Pgge ofPage(s) 8



Similarly, to ?nd the accused guilty ofthis offense with regards to Speci?cation 3, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following ?ve (5)
elements:

(1) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 22 March 2010 and on or about 26 March 2010, have unauthorized possession of (or

- control over or access to) information;

(2) That the information was relating to the national defense, to wit: more than one classi?ed
memorandum produced by a United States government intelligence agency;

(3) That the accused knew or had a reason to believe that the named memoranda could be used
to the injury of the United States or to the advantage of any foreign nation;

(4) That the accused willfully communicated (or delivered or transmitted or caused to be
communicated, delivered or transmitted or attempted to communicate, deliver or transmit) the
named memoranda to [a person or entity], who was not entitled to receive it; and

(5) 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.

Authorig: 18 U.S.C. 793(6). Ninth Circuit: United States v. Lee, 589 F.2d 980 (9th Cir.
1979); Military Judges Benchbook, DA Pam 27-9.

Similarly, to ?nd the accused guilty of this offense with regards to Speci?cation 5, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following ?ve (5)
elements:

(1) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 31 December 2009 and on or about 9 February 2010, have unauthorized possession of (or
control over or access to) information;

(2) That the information was relating to the national defense, to wit: more than twenty classi?ed
records from the Combined Information Data Network Exchange Iraq database;

(3) That the accused knew or had a reason to believe that the named information could be used
to the injury of the United States or to the advantage of any foreign nation;

(4) That the accused willfully communicated (or delivered or transmitted or caused to be
communicated, delivered or transmitted or attempted to communicate, deliver or transmit) the
named information to [a person or entity], who was not entitled to receive it; and

(5) 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.

22453





Authority: 18 U.S.C. 793(e). Ninth Circuit: United States v. Lee, 589 F.2d 980 (9th Cir.
1979); Military Judges Benchbook, DA Pam 27-9.

Similarly, to ?nd the accused guilty of this offense with regards to Speci?cation 7, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following ?ve (5)
elements:

(1) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 31 December 2009 and on or about 9 February 2010, have unauthorized possession of (or
control over or access to) information;

(2) That the information was relating to the national defense, to wit: more than twenty classi?ed
records from the Combined Information Data Network Exchange Afghanistan database;

(3) That the accused knew or had a reason to believe that the named information could be used
to the injury of the United States or to the advantage of any foreign nation;

(4) That the accused willfully communicated (or delivered or transmitted or caused to be
communicated, delivered or transmitted or attempted to communicate, deliver or transmit) the
named infonnation to [a person or entity], who was not entitled to receive it; and

(5) 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.

Authority: 18 U.S.C. 793(e). Ninth Circuit: United States v. Lee, 589 F.2d 980 (9th Cir.
1979); Military Judges Benchbook, DA Pam 27-9.

Similarly, to ?nd the accused guilty of this offense with regards to Speci?cation 9, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following ?ve (5)
elements:

(1) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 8 March 2010 and on or about 27 May 2010, have unauthorized possession of (or control
over or access to) information;

(2) That the information was relating to the national defense, to wit: more than three classi?ed
records from a United States Southern Command database;

(3) That the accused knew or had a reason to believe that the named information could be used
to the injury of the United States or to the advantage of any foreign nation;

(4) That the accused willfully communicated (or delivered or transmitted or caused to be
communicated, delivered or transmitted or attempted to communicate, deliver or transmit) the
named infonnation to [a person or entity], who was not entitled to receive it; and



(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order
and discipline in the anned forces and was of a nature to bring discredit upon the armed forces.

Authority: 18 U.S.C. 793(e). Ninth Circuit: United States v. Lee, 589 F.2d 980 (9th Cir.
1979); Military Judges Benchbook, DA Pam 27-9.

Similarly, to find the accused guilty of this offense with regards to Speci?cation l0, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following ?ve (5)
elements:

(I) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about I 1 April 20l0 and on or about 27 May 2010, have unauthorized possession of (or control
over or access to) information;

(2) That the information was relating to the national defense, to wit: more than five classi?ed
records relating to a military operation in Farah Province, Afghanistan occurring on or about 4
May 2009;

(3) That the accused knew or had a reason to believe that the named infonnation could be used
to the injury of the United States or to the advantage of any foreign nation;

(4) That the accused willfully communicated (or delivered or transmitted or caused to be
communicated, delivered or transmitted or attempted to communicate, deliver or transmit) the
named infonnation to [a person or entity], who was not entitled to receive it; and

(5) 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 anned forces.

Authority: 18 U.S.C. 793(e). Ninth Circuit: United States v. Lee, 589 F.2d 980 (9th Cir.
1979); Military Judges Benchbook, DA Pam 27-9.

Similarly, to find the accused guilty ofthis offense with regards to Specification 1 I, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following five (5)
elements:

(I) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 1 November 2009 and on or about 8 January 2010, have unauthorized possession of (or
control over or access to) infonnation;

(2) That the information was relating to the national defense, to wit: a file named
PAX.zip? containing a video named PAX.wmv?;





(3) That the accused knew or had a reason to believe that the named information could be used
to the injury of the United States or to the advantage of any foreign nation;

(4) That the accused willfully communicated (or delivered or transmitted or caused to be
communicated, delivered or transmitted or attempted to communicate, deliver or transmit) the
named information to [a person or entity], who was not entitled to receive it; and

(5) 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.

Authority: 18 U.S.C. 793(e). Ninth Circuit: United States v. Lee, 589 F.2d 980 (9th Cir.
1979); Military Judges Benchbook, DA Pam 27-9.

Similarly, to ?nd the accused guilty of this offense with regards to Speci?cation 15, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following ?ve (5)
elements:

(1) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 15 February 2010 and on or about 15 March 2010, have unauthorized possession of (or
control over or access to) information;

(2) That the infonnation was relating to the national defense, to wit: a classi?ed record produced
by a United States Army intelligence organization, dated 18 March 2008;

(3) That the accused knew or had a reason to believe that the named information could be used
to the injury of the United States or to the advantage of any foreign nation;

(4) That the accused willfully communicated (or delivered or transmitted or caused to be
communicated, delivered or transmitted or attempted to communicate, deliver or transmit) the

named information to [a person or entity], who was not entitled to receive it; and

(5) 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.

Authority: 18 U.S.C. 793(e). Ninth Circuit: Um'tedStates v. Lee, 589 F.2d 980 (9th Cir.
1979); Military Judges Benchbook, DA Pam 27-9.

Court de?nitions

(1) Possession

The ?rst element of the offense that the government must prove beyond a reasonable doubt is
that the accused had unauthorized possession of (or control over or access to) the charged



information.

The word ?possession? is a commonly used and commonly understood word. It means the act of
having or holding property or the detention of property in one?s power or command. Possession
may mean actual physical possession or constructive possession. A person has constructive
possession of something if he knows where it is and can get it any time he wants, or otherwise
can exercise control over it.

A person has ?unauthorized? possession of something if he is not entitled to have it.

If you ?nd that the accused?s possession of (or control over or access to) the charged information
was not unauthorized, you must ?nd the accused not guilty.

Authorig: Fifth Circuit: United States v. Sink, 586 F.2d 1041 (5th Cir. 1978), cert. denied, 443
U.S. 912 (1979). Tenth Circuit: United States v. Zink, 612 F.2d 511 (10th Cir. 1980).

(2) Information Related to National Defense:

The second element that the government must prove beyond a reasonable doubt is that the
charged infonnation is related to the national defense of the United States.

You must determine whether the charged infonnation is directly and reasonably connected with
the national defense. The tenn ?national defense? is a broad term which refers to United States
military and naval establishments and to all related activities of national preparedness.
However, only information of the type which, if disclosed, could threaten the national security of
the United States meets the de?nition of information ?related to the national defense? for the
purpose of this section. The connection must not be a strained one or an arbitrary one. The
relationship must be reasonable and direct. Further, the type of harm that disclosure of the
infonnation is likely to cause must be endangennent to the environment of physical security
which a functioning democracy requires. Finally, the Government must prove beyond a
reasonable doubt that disclosure of the infonnation would be likely to cause imminent serious
injury to the United States. If the disclosure of this information does not pose this threat of
imminent serious injury to the United States, then it is not information relating to the national
defense.

Additionally, the Government must prove beyond a reasonable doubt that the Government
closely held the information and that the accused knew the infonnation was closely held. To do
this, the Government must prove at least two things: (1) that the infonnation was classi?ed and
(2) that the information was not otherwise available to the public. If, however, the information is
lawfully accessible to anyone willing to take pains to ?nd, to sift, and to collate it, you may not
?nd the accused guilty of espionage under this section. Only information relating to our national
defense which is not available to the public at the time ofthe claimed violation falls within the
prohibition of this section.

22457



If you find that the charged infonnation is not related to the national defense of the United States,
you must ?nd the accused not guilty.

Authority: United States Supreme Court: New York Times Co. v. United States, 403 U.S. 713
(1971) (Brennan, J., concurring); Gorin v. United States, 312 U.S. 19 (1941). Second Circuit:
United States v. Soblen, 301 F.2d 236 (2d Cir. 1962). Fourth Circuit: United States v. Morison,
844 F.2d 1057 (4th Cir. 1988); United States v. Dedeyan, 584 F.2d 36 (4th Cir. 1978); United
States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006).

(3) Information Could Be Used To I1_1iurv of t1_1e United States

The next element of the offense that the government must establish beyond a reasonable doubt is
that the accused had reason to believe that the charged information could be used to the injury of
the United States or to the advantage of any foreign nation.

?Reason to believe? means that the accused knew facts from which he concluded or reasonably
should have concluded that the charged infonnation could be used for the prohibited purposes.
In considering whether or not the accused had reason to believe that the charged infonnation
could be used to the injury of the United States, or to the advantage of any foreign nation, you
may consider the nature of the information involved.

Additionally, the likelihood of the information being used to the injury of the United States or to
the advantage of any foreign nation must not be too remote, hypothetical, speculative, far-fetched
or fanciful. Rather, the information must pose a legitimate danger of being used to the injury of
the United States or to the advantage of any foreign nation, such that an accused knew or should
have known about the information?s capability to be used in this manner.

If you find that the accused did not have a reason to believe that the charged infonnation could
be used to the injury of the United States or to the advantage of any foreign nation, you must ?nd
the accused not guilty.

Authority: United States Supreme Court: Gorin v. United States, 312 U.S. 19 (1941). Fourth
Circuit: United States v. ruong Dinh Hung, 629 F.2d 908 (4th Cir. 1980). Ninth Circuit: United
States v. Lee, 589 F.2d 980 (9th Cir. 1979).

(4) Willfullv Delivered Information to Person Not Qtitled To Receive It

The next element of the offense that the government must establish beyond a reasonable doubt is
that the accused willfully communicated (or delivered or transmitted or caused to be
communicated, delivered, or transmitted or attempted to communicate, deliver, or transmit) the
charged infonnation to a [person or entity], who was not entitled to receive it.

In deciding whether the [person or entity] who received the charged information at issue was
entitled to have it, you may consider all the evidence introduced at trial, including any evidence
concerning the classification status of the document or testimony concerning limitations on

7



access to the document.

An act is done willfully if it is done voluntarily and intentionally and with the specific intent to
do something the law forbids, that is to say, with a bad purpose either to disobey or disregard the
law.

If you find that the accused?s did not willfully communicated (or delivered or transmitted or
caused to be communicated, delivered, or transmitted or attempted to communicate, deliver, or
transmit) the charged information to a [person or entity], who was not entitled to receive it, you
must find the accused not guilty.

Authority: Fourth Circuit: Um'tedStates v. Morison, 844 F.2d 1057 (4th Cir. 1988). Ninth

1 Circuit: United States v. Lee, 589 F.2d 980 (9th Cir. 1979).

(5) Prejudicial to Good Order and Discipline and Service Discrediting Conduct

The ?nal element of the offense which the government must establish beyond a reasonable doubt
is that the accused?s conduct was prejudicial to good order and discipline and of a nature to bring
discredit upon the armed forces.

?Conduct prejudicial to good order and discipline? is conduct which causes a reasonable direct
and obvious injury to good order and discipline. ?Service discrediting conduct? is conduct

which tends to harm the reputation of the service or lower it in public esteem.

1f you find that the accused?s conduct was not prejudicial to good order and discipline and/or was
not of a nature to bring discredit upon the armed forces, you must ?nd the accused not guilty.

Authorig: Military Judges? Benchbook notes under Article 134

2. The Defense respectfully requests the above instructions and definitions be given by the
Court.

Respectfully submitted,


.


DAVID EDWARD COOMBS
Civilian Defense Counsel

. . 22460

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE REQUESTED
v. INSTRUCTION:

SPECIFICATIONS 4, 6, 8, 12 AND
MANNING, Bradley E., PFC 16 OF CHARGE II
U-5-
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 22 June 2012
Fort Myer, VA 222] I

l. The defense requests the following instructions to be given to the panel regarding
Speci?cations 4, 6, 8, I2 and I6 ofCharge II:

Court Instructions

ln Speci?cations 4, 6, 8, l2 and I6 ofCharge II, the accused is charged with the offense of
stealing, purloining, or knowingly converting a thing of value ofthe United States, a violation of
18 U.S.C. Section 641. To ?nd the accused guilty of this offense with regards to Speci?cation 4,
you must be convinced by legal and competent evidence beyond a reasonable doubt of the
following ?ve (5) elements:

(I) That the property alleged to have been stolen, purloined, or knowingly converted, to wit: the
Combined lnfonnation Data Network Exchange Iraq database containing more than 380,000
records, belonged to the United States government;

(2) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 31 December 2009 and on or about 5 January 20l0, steal, purloin, or knowingly convert another the named property;

(3) That the accused acted knowingly and willfully with the intent to deprive the government of
the use and bene?t of its property;

(4) That the value of the named property stolen, purloined, or knowingly converted was greater
than $1,000; and

(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order
and discipline in the amied forces and was of a nature to bring discredit upon the anned forces.

Authority: Fifth Circuit: United States v. Dien Duc Huynh, 246 F.3d 734 (5th Cir. 200l
United States v. Aguilar, 967 F.2d 1 I I (5th Cir. 1992); Fifth Circuit Pattern Criminal Jury
Instruction 2.33. Seventh Circuit: United States v. Howard, 30 F.3d 87l (7th Cir.
Seventh Circuit Pattern Criminal Jury Instruction to 18 U.S.C. 641. Eighth Circuit: Eighth
Circuit Model Criminal Jury Instruction 6.18.64]. Ninth Circuit: United States v. Seaman, I8
F.3d 649 (9th Cir. 1994). Tenth Circuit: Um'tedStates v. Hill, 835 F.2d 759 (l0th Cir. I987).



M. o(Pnge(Sl


EXHIBIT 9311'}.

(Ala?)



Eleventh Circuit: United States v. McRee, 7 F.3d 976 (1 1th Cir. 1993), cert. denied, 51 1 U.S.
1074 (1994); Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 21;
Military Judges Benchbook, DA Pam 27-9.

Similarly, to find the accused guilty of this offense with regards to Speci?cation 6, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following ?ve (5)
elements:

(1) That the property alleged to have been stolen, purloined, or knowingly converted, to wit: the
Combined Information Data Network Exchange Afghanistan database containing more than
90,000 records, belonged to the United States government;

(2) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 31 December 2009 and on or about 8 January 2010, steal, purloin, or knowingly convert another the named property;

(3) That the accused acted knowingly and willfully with the intent to deprive the government of
the use and benefit of its property;

(4) That the value of the named property stolen, purloined, or knowingly converted was greater
than $1,000; and

(5) 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 am1ed forces.

Authority: Fifth Circuit: United States v. Dien Due Huynh, 246 F.3d 734 (5th Cir. 2001);
UnitedStates v. Aguilar, 967 F.2d 111 (5th Cir. 1992); Fifth Circuit Pattern Criminal Jury
Instruction 2.33. Seventh Circuit: United States v. Howard, 30 .3d 871 (7th Cir. 1994);
Seventh Circuit Pattern Criminal Jury Instruction to 18 U.S.C. 641. Eighth Circuit: Eighth
Circuit Model Criminal Jury Instruction 6.18.641. Ninth Circuit: United States v. Seaman, 18
F.3d 649 (9th Cir. 1994). Tenth Circuit: United States v. Hill, 835 F.2d 759 (10th Cir. 1987).
Eleventh Circuit: United States v. McRee, 7 F.3d 976 (1 1th Cir. 1993), cert. denied, 511 U.S.
1074 (1994); Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 21;
Military Judges Benchbook, DA Pam 27-9.

Similarly, to find the accused guilty of this offense with regards to Specification 8, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following five (5)
elements:

(1) That the property alleged to have been stolen, purloined, or knowingly converted, to wit: a
United States Southern Command database containing more than 700 records, belonged to the
United States government;

(2) That the accused did, at or near Contingency Operating Station Hammer, Iraq, on or about 8
March 2010, steal, purloin, or knowingly convert another the named

property;



(3) That the accused acted knowingly and willfully with the intent to deprive the government of
the use and benefit of its property;

(4) That the value of the named property stolen, purloined, or knowingly converted was greater
than $1,000; and

(5) 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 anned forces.

Authority: Fifth Circuit: United States v. Dien Duc Huynh, 246 F.3d 734 (5th Cir. 2001);
United States v. Aguilar, 967 F.2d 1 1 1 (5th Cir. 1992); Fifth Circuit Pattern Criminal Jury
Instruction 2.33. Seventh Circuit: United States v. Howard, 30 F.3d 871 (7th Cir. 1994);
Seventh Circuit Pattern Criminal Jury Instruction to 18 U.S.C. 641. Eighth Circuit: Eighth
Circuit Model Criminal Jury Instruction 6.18.641. Ninth Circuit: United States v. Seaman, 18
F.3d 649 (9th Cir. 1994). Tenth Circuit: United States v. Hill, 835 F.2d 759 (10th Cir. 1987).
Eleventh Circuit: United States v. McRee, 7 F.3d 976 (1 1th Cir. 1993), cert. denied, 511 U.S.
1074 (1994); Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 21;
Military Judges Benchbook, DA Pam 27-9.

Similarly, to find the accused guilty ofthis offense with regards to Speci?cation 12, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following ?ve (5)
elements:

(1) That the property alleged to have been stolen, purloined, or knowingly converted, to wit: the
Department of State Net?Centric Diplomacy database containing more than 250,000 records,
belonged to the United States government;

(2) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 28 March 2010 and on or about 4 May 2010, steal, purloin, or knowingly convert another the named property;

(3) That the accused acted knowingly and willfully with the intent to deprive the government of
the use and benefit of its property;

(4) That the value of the named property stolen, purloined, or knowingly converted was greater
than $1,000; and

(5) 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 anature to bring discredit upon the anned forces.

Authority: Fifth Circuit: United States v. Dien Duc Huynh, 246 F.3d 734 (5th Cir. 2001);
United States v. Aguilar, 967 F.2d 1 11 (5th Cir. 1992); Fifth Circuit Pattern Criminal Jury
Instruction 2.33. Seventh Circuit: United States v. Howard, 30 F.3d 871 (7th Cir. 1994);
Seventh Circuit Pattern Criminal Jury Instruction to 18 U.S.C. 641. Eighth Circuit: Eighth
Circuit Model Criminal Jury Instruction 6.18.641. Ninth Circuit: United States v. Seaman, 18
F.3d 649 (9th Cir. 1994). Tenth Circuit: United States v. Hill, 835 F.2d 759 (10th Cir. 1987).
Eleventh Circuit: United States v. McRee, 7 F.3d 976 (1 1th Cir. 1993), cert. denied, 51 1 U.S.

. . 22463

1074 (1994); Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction
Military Judges Benchbook, DA Pam 27-9.

Similarly, to ?nd the accused guilty of this offense with regards to Speci?cation 16, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following ?ve (5)
elements:

(1) That the property alleged to have been stolen, purloined, or knowingly converted, to wit: the
United States Forces Iraq Microsoft Outlook/SharePoint Exchange Server global address list,
belonged to the United States government;

(2) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 11 May 20l0 and on or about 27 May 2010, steal, purloin, or knowingly convert another the named property;

(3) That the accused acted knowingly and willfully with the intent to deprive the government of
the use and benefit of its property;

(4) That the value of the named property stolen, purloined, or knowingly converted was greater
than $1,000; and

(5) 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 anned forces.

Authorig: Fifth Circuit: United States v. Dien Duc Huynh, 246 F.3d 734 (5th Cir. 2001);
United States v. Aguilar, 967 F.2d 111 (5th Cir. 1992); Fifth Circuit Pattern Criminal Jury
Instruction 2.33. Seventh Circuit: United States v. Howard, 30 F.3d 871 (7th Cir. 1994);
Seventh Circuit Pattern Criminal Jury Instruction to I8 U.S.C. 641. Eighth Circuit: Eighth
Circuit Model Criminal Jury Instruction 6.18.64]. Ninth Circuit: United States v. Seaman, 18
F.3d 649 (9th Cir. I994). Tenth Circuit: United States v. Hill, 835 F.2d 759 (10th Cir. I987).
Eleventh Circuit: United States v. McRee, 7 F.3d 976 (l Cir. 1993), cert. denied, 51 1 U.S.
I074 Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 21;
Military Judges Benchbook, DA Pam 27-9.

Court De?nitions

(1) Money or Property Belongeg to Unitet_l States

The ?rst element that the government must prove beyond a reasonable doubt is that the money or
property alleged to have been stolen, purloined, or knowingly converted belonged to the United
States government.

To satisfy this element, the government must prove that the named property was a ?thing of
value of the United States.? That means that at the time the property was allegedly stolen (or
embezzled or knowingly converted) the United States government or an agency of the United
States government had either title to, possession of, or control over, the property (or the property
was made under contract for the United States).

. . 22464

If you ?nd that the money or property was not a ?thing of value of the United States,? you must
?nd the accused not guilty.

Authority: 18 U.S.C. 641. Second Circuit: United States v. Girard, 601 F.2d 69 (2d Cir.),
cert. denied, 444 U.S. 871 (1979). Fourth Circuit: United States v. Matzkin, 14 F.3d 1014 (4th
Cir. 1994). Sixth Circuit: United States v. Barger, 931 F.2d 359 (6th Cir. 199]). Seventh
Circuit: United States v. Croft, 750 F.2d 1354 (7th Cir. 1984). Eighth Circuit: United States v.
Wilson, 636 F.2d 225 (8th Cir. 1980). District of Columbia Circuit: United States v. Collins, 56
F.3d 1416 (D.C. Cir. 1995) (per curiam).

(2) Accused Stole, Purloined or Knowigglv Converted Property

The second element that the government must prove beyond a reasonable doubt is that the
accused stole (or purloined or knowingly converted) the property of the United States
government.

[If stealing is charged]: To steal money or property means to take someone else?s money or
property without the owner?s consent with the intent to deprive the owner of the value of that
money or property.

[If purloined is charged]: To purloin is to steal with the element of stealth, that is, to take by
stealth someone else?s property without the owner?s consent with the intent to pennanently
deprive the owner of the value of that property.

[If conversion is charged]: To knowingly convert property means to exercise control over the
property in an unauthorized manner in a way which seriously or substantially interferes with the
government?s right to use and control its own property, knowing that the property belonged to
the United States, and knowing that such use was unauthorized. Mere misuse of the property is
not enough for you to ?nd that the accused knowingly converted it. Rather, you must ?nd that
such misuse seriously or substantially interfered with the govemment?s ownership rights in that

property.

If you ?nd that the accused did not steal (or purloin or knowingly convert) the money or
property, you must find the accused not guilty.

Authority: United States Supreme Court: Morissette v. United States, 342 U.S. 246 (1952).
Third Circuit: United States v. Oliver, 238 F.3d 471 (3d Cir. 2001). Fourth Circuit: United
States v. Maisel, 12 F.3d 423 (4th Cir. 1993); United States v. Fowler, 932 F.2d 306 (4th Cir.
1991); United States v. Fogel, 901 F.2d 23 (4th Cir.), cert. denied, 498 U.S. 939 (1990). Fifth
Circuit: United States v. Aguilar, 967 F.2d 111 (5th Cir. 1992). Eighth Circuit: United States v.
May, 625 F.2d 186 (8th Cir. 1980). Ninth Circuit: United States v. Thordarson, 646 F.2d 1323
(9th Cir. 1981). Tenth Circuit: UnitedStates v. Hill, 835 F.2d 759 (10th Cir. 1987). District of
Columbia Circuit: United States v. Collins, 56 F.3d 1416 (D.C. Cir. 1995) (per curiam).



. . 22465

(3) Intent

The third element that the government must prove beyond a reasonable doubt is that the accused
acted knowingly and willfully with the intent to deprive the government of the use and bene?t of
its property.

To act knowingly means to act intentionally and voluntarily, and not because of ignorance,
mistake, accident or carelessness.

To act willfully means to act with knowledge that one?s conduct is unlawful and with the intent
to do something that the law forbids, that is to say, with the bad purpose to disobey or disregard
the law.

Whether the accused acted knowingly and willfully may be proven by the accused?s conduct and
by all of the circumstances surrounding the case.

If you find that the accused did not act knowingly and willfully with the intent to deprive the
government of the use and bene?t of its property, you must find the accused not guilty.

Authorig: United States Supreme Court: Morissette v. United States, 342 U.S. 246 (1952).
Fourth Circuit: United States v. Fowler, 932 F.2d 306 (4th Cir. 1991). Fifth Circuit: United
States v. Shackleford, 677 F.2d 422 (5th Cir. 1982), cert. denied, 494 U.S. 899 (1983). Seventh
Circuit: United States v. Croft, 750 F.2d 1354 (7th Cir. 1984). Eighth Circuit: United States v.
Wilson, 636 F.2d 225 (8th Cir. 1980). Ninth Circuit: United States v. Scott, 789 F.2d 795 (9th
Cir. 1986); United States v. Eden, 659 F.2d I376 (9th Cir. 1981), cert. denied, 455 U.S. 949
(1982). Eleventh Circuit: United States v. McRee, 7 F.3d 976 (1 1th Cir. 1993), cert. denied, 511
U.S. 1074 (1994); UnitedStates v. Burton, 871 F.2d 1566 (11th Cir. 1989).

(4) Value of Property

The fourth element which the government must prove beyond a reasonable doubt is that the
value of the property allegedly stolen, purloined, or knowingly converted was greater than
$1,000.

The word ?value? means face, par or market value, or cost price, either wholesale or retail,
whichever is greater. ?Market value? means the price a willing buyer would pay a willing seller
at the time the property was stolen, purloined, or knowingly converted. ?Cost price? means the
cost of producing or creating the specific property allegedly stolen, purloined, or knowingly
converted.

Whichever method of proving value the Government chooses to pursue, you are not permitted to
infer the requisite value merely from your common knowledge or experience. Rather, the
Government must put forth evidence to prove to you beyond a reasonable doubt that the value of
the specific property allegedly stolen, purloined, or knowingly converted exceeded $1 ,000.

If you find that the aggregate value is $1,000 or less, then you must find the accused not guilty.



Authority: Third Circuit: United States v. DiGilio, 538 F.2d 972 (3d Cir. 1976), cert. denied
sub nom., Lupo v. United States, 429 U.S. 1038 (1977). Fourth Circuit: United States v. Fowler,
932 F.2d 306 (4th Cir. 1991); United States v. Wilson, 284 F.2d 407 (4th Cir. 1960). Sixth
Circuit: United States v. Jeter, 775 F.2d 670 (6th Cir. 1985), cert. denied, 475 U.S. 1142 (1986).
Seventh Circuit: United States v. Oberhardt, 887 F.2d 790 (7th Cir. 1989). Eighth Circuit:
United States v. May, 625 .2d 186 (8th Cir. 1980). Ninth Circuit: United States v. Sargent, 504
F.3d 767 (9th Cir. 2007).

(5) Prejudicial to Good Order and Discipline and Service Discrediting Conduct

The ?nal element of the offense which the government must establish beyond a reasonable doubt
is that the accused?s conduct was prejudicial to good order and discipline and of a nature to bring
discredit upon the armed forces.

?Conduct prejudicial to good order and discipline? is conduct which causes a reasonable direct
and obvious injury to good order and discipline. ?Service discrediting conduct? is conduct
which tends to harm the reputation of the service or lower it in public esteem.

If you ?nd that the accused?s conduct was not prejudicial to good order and discipline and/or was
not of a nature to bring discredit upon the armed forces, you must ?nd the accused not guilty.

Authori?: Military Judges? Benchbook notes under Article 134

2. Additionally, as a lesser-included offense (LIO) for each of the Section 641 offenses alleged
in Speci?cations Charge II, the Defense requests the following instructions:

Court LIO Instructions

In Speci?cations Charge II, the accused is charged with the offense of
stealing, purloining, or knowingly converting a thing of value of the United States, a violation of
18 U.S.C. Section 641. If, for any of these offenses, you ?nd that the Government has not
proved beyond a reasonable doubt that the property in question had a value inexcess of $1,000,
you may consider whether the accused is guilty of the lesser-included offense of stealing,
purloining, or knowingly converted a thing of value of the United States not having a value in
excess of$l,000, a violation of 18 U.S.C. Section 641.

To ?nd the accused guilty of this lesser-included offense with regards to Speci?cation 4, you
must be convinced by legal and competent evidence beyond a reasonable doubt of the following
?ve (5) elements:

(1) That the property alleged to have been stolen, purloined, or knowingly converted, to wit: the
Combined Information Data Network Exchange Iraq database containing more than 380,000
records, belonged to the United States government;



(2) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 31 December 2009 and on or about 5 January 2010, steal, purloin, or knowingly convert another the named property;

(3) That the accused acted knowingly and willfully with the intent to deprive the government of
the use and bene?t of its property;

(4) That the named property stolen, purloined, or knowingly converted had some value of
$1,000 or less; and

(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order
and discipline in the armed forces and was ofa nature to bring discredit upon the armed forces.

Authori?: 18 U.S.C. 64 1. Fifth Circuit: UnitedStates v. Dien Due Huynh, 246 F.3d 734 (5th
Cir. 2001); United States v. Aguilar, 967 F.2d 1 1 1 (5th Cir. 1992); Fifth Circuit Pattern Criminal
Jury Instruction 2.33. Seventh Circuit: United States v. Howard, 30 F.3d 871 (7th Cir. 1994);
Seventh Circuit Pattern Criminal Jury Instruction to 18 U.S.C. 641. Eighth Circuit: Eighth
Circuit Model Criminal Jury Instruction 6.18.641. Ninth Circuit: United States v. Seaman, 18
F.3d 649 (9th Cir. 1994). Tenth Circuit: United States v. Hill, 835 F.2d 759 (10th Cir. 1987).
Eleventh Circuit: UnitedStates v. McRee, 7 F.3d 976 (1 1th Cir. 1993), cert. denied, 51 1 U.S.
1074 (1994); Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 21;
Military Judges Benchbook, DA Pam 27-9.

Similarly, to ?nd the accused guilty of this lesser-included offense with regards to Speci?cation
6, you must be convinced by legal and competent evidence beyond a reasonable doubt of the
following ?ve (5) elements:

(1) That the property alleged to have been stolen, purloined, or knowingly converted, to wit: the
Combined Infonnation Data Network Exchange Afghanistan database containing more than
90,000 records, belonged to the United States government;

(2) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 31 December 2009 and on or about 8 January 2010, steal, purloin, or knowingly convert another the named property;

(3) That the accused acted knowingly and willfully with the intent to deprive the government of
the use and bene?t of its property;

(4) That the named property stolen, purloined, or knowingly converted had some value of
$1,000 or less; and

(5) 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.

Authorig: 18 U.S.C. 641. Fifth Circuit: United States v. Dien Duc Huynh, 246 F.3d 734 (5th
Cir. 2001); United States v. Aguilar, 967 F.2d 111 (5th Cir. 1992); Fifth Circuit Pattern Criminal

22467

22468

Jury Instruction 2.33. Seventh Circuit: United States v. Howard, 30 F.3d 871 (7th Cir. 1994);
Seventh Circuit Pattern Criminal Jury Instruction to 18 U.S.C. 641. Eighth Circuit: Eighth
Circuit Model Criminal Jury Instruction 6.18.641. Ninth Circuit: United States v. Seaman, 18
F.3d 649 (9th Cir. 1994). Tenth,Circuit: United States v. Hill, 835 F.2d 759 (10th Cir. 1987).
Eleventh Circuit: United States v. McRee, 7 F.3d 976 (I 1th Cir. 1993), cert. denied, 51 I U.S.
1074 (1994); Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 21;
Military Judges Benchbook, DA Pam 27-9.

Similarly, to ?nd the accused guilty of this lesser?included offense with regards to Speci?cation
8, you must be convinced by legal and competent evidence beyond a reasonable doubt of the
following ?ve (5) elements:

(1) That the property alleged to have been stolen, purloined, or knowingly converted, to wit: a
United States Southern Command database containing more than 700 records, belonged to the
United States government;

(2) That the accused did, at or near Contingency Operating Station Hammer, Iraq, on or about 8
March 2010, steal, purloin, or knowingly convert another the named



(3) That the accused acted knowingly and willfully with the intent to deprive the government of
the use and bene?t of its property;

(4) That the named property stolen, purloined, or knowingly converted had some value of
$1,000 or less; and

(5) 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.

Authorigz 18 U.S.C. 641. Fi?h Circuit: United States v. Dien Duc Huynh, 246 F.3d 734 (5th
Cir. 2001); United States v. Aguilar, 967 F.2d 111 (5th Cir. 1992); Fifth Circuit Pattern Criminal
Jury Instruction 2.33. Seventh Circuit: United States v. Howard, 30 F.3d 871 (7th Cir. 1994);
Seventh Circuit Pattern Criminal Jury Instruction to 18 U.S.C. 641. Eighth Circuit: Eighth
Circuit Model Criminal Jury Instruction 6.18.641. Ninth Circuit: United States v. Seaman, 18
F.3d 649 (9th Cir. 1994). Tenth Circuit: United States v. Hill, 835 F.2d 759 (10th Cir. 1987).
Eleventh Circuit: United States v. McRee, 7 F.3d 976 (11th Cir. 1993), Qrert. denied, 51 U.S.
1074 (1994); Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 21;
Military Judges Benchbook, DA Pam 27-9.

Similarly, to ?nd the accused guilty of this lesser?included offense with regards to Speci?cation
12, you must be convinced by legal and competent evidence beyond a reasonable doubt of the
following ?ve (5) elements:

(1) That the property alleged to have been stolen, purloined, or knowingly converted, to wit: the
Department of State Net?Centric Diplomacy database containing more than 250,000 records,
belonged to the United States government;

. . 22469

(2) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 28 March 2010 and on or about 4 May 2010, steal, purloin, or knowingly convert another the named property;

(3) That the accused acted knowingly and willfully with the intent to deprive the government of
the use and bene?t of its property;

(4) That the named property stolen, purloined, or knowingly converted had some value of
$1,000 or less; and

(5) 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.

Authoriggz 18 U.S.C. 641. Fifth Circuit: United States v. Dien Duc Huynh, 246 F.3d 734 (5th
Cir. 2001); United States v. Aguilar, 967 F.2d 1 11 (5th Cir. 1992); Fifth Circuit Pattern Criminal
Jury Instruction 2.33. Seventh Circuit: United States v. Howard, 30 F.3d 871 (7th Cir. 1994);
Seventh Circuit Pattern Criminal Jury Instruction to 18 U.S.C. 641. Eighth Circuit: Eighth
Circuit Model Criminal Jury Instruction 6.18.64]. Ninth Circuit: United States v. Seaman, 18
F.3d 649 (9th Cir. 1994). Tenth Circuit: United States v. Hill, 835 F.2d 759 (10th Cir. 1987).
Eleventh Circuit: United States v. McRee, 7 F.3d 976 (1 1th Cir. 1993), cert. denied, 51 1 U.S.
1074 (1994); Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 21;
Military Judges Benchbook, DA Pam 27-9.

Similarly, to ?nd the accused guilty of this lesser-included offense with regards to Speci?cation
16, you must be convinced by legal and competent evidence beyond a reasonable doubt of the
following ?ve (5) elements:

(1) That the property alleged to have been stolen, purloined, or knowingly converted, to wit: the
United States Forces Iraq Microsoft Outlook/SharePoint Exchange Server global address list,
belonged to the United States government;

(2) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on or
about 11 May 2010 and on or about 27 May 2010, steal, purloin, or knowingly convert another the named property;

(3) That the accused acted knowingly and willfully with the intent to deprive the government of
the use and bene?t of its property;

(4) That the named property stolen, purloined, or knowingly converted had some value of
$1,000 or less; and

10

0 0 22470

(5) 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.?

Authorig: Fifth Circuit: United Slates v. Dien Duc Huynh, 246 F.3d 734 (5th Cir. 200]);
United States v. Aguilar, 967 F.2d 1 11 (5th Cir. 1992); Fifth Circuit Pattern Criminal Jury
Instruction 2.33. Seventh Circuit: United States v. Howard, 30 F.3d 871 (7th Cir. 1994);
Seventh Circuit Pattern Criminal Jury Instruction to 18 U.S.C. 641. Eighth Circuit: Eighth
Circuit Model Criminal Jury Instruction 6.18.641. Ninth Circuit: United States v. Seaman, 18
F.3d 649 (9th Cir. 1994). Tenth Circuit: United States v. Hill, 835 F.2d 759 (10th Cir. 1987).
Eleventh Circuit: United States v. McRee, 7 F.3d 976 (1 1th Cir. 1993), cert. denied, 51 1 U.S.
1074 (1994); Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 21;
Military Judges Benchbook, DA Pam 27-9.

3. The Defense respectfully requests the above instructions and de?nitions be given by the
Court.

Respectfully submitted,



DAVID EDWARD COOMBS
Civilian Defense Counsel

1 For the more detailed instructions on each of the elements of this L10, the Defense relies on those provided supra
at 4-7, except that the language in the instruction for the value element should be changed to reflect some value of
$1,000 or less.

11



22471

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REQUESTED
v. INSTRUCTION: ARTICLE 104

MANNING, Bradley E., PFC

us. my.

Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 222] I

DATED: 22 June 2012



I. The defense requests the following instructions to be given to the panel regarding the
Speci?cation of Charge I:

Court Instructions

In the Speci?cation and Charge I, the accused is charged with the offense of Aiding the Enemy,
a violation of Article 104, UCMJ. To ?nd the accused guilty of this offense, you must be
convinced by legal and competent evidence beyond a reasonable doubt of the following four (4)
elements:

I) 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, without proper authority, knowingly gave
intelligence infonnation to the enemy, namely: Al-Qaida, Al-Qaida in the Arabian Peninsula,
and an entity speci?ed in Bates Number 00410660 through 00410664;

(2) That the accused did so by indirect means;

(3) That Al-Qaida, Al-Qaida in the Arabian Peninsula, and an entity speci?ed in Bates Number
004 I 0660 through 00410664 was an enemy; and

(4) That this intelligence information is true, at least in part.

Authorig: Article 104(2), UCMJ, l0 U.S.C. 904(2); Military Judges Benchbook, DA Pam
27-9, para. 3-28-4.

Court De?nitions

(1) Kiwigglv Gave Intelligence Information to the Enemy

The ?rst element which the government must prove beyond a reasonable doubt is that the
accused, without proper authority, knowingly gave intelligence to the enemy and that he knew at
the time that the individuals that he gave the intelligence to were enemies of the United States.

U95)
Page I otPage(s) 3

22472

In order to ?nd the accused guilty of giving intelligence to the enemy through indirect means,
you must be convinced beyond a reasonable doubt that the accused had actual knowledge that he
was giving intelligence to the enemy through the indirect means. An accused has actual
knowledge that he is giving intelligence to the enemy through indirect means only when he
knowingly and intentionally provides intelligence to the enemy through the indirect means.
Providing intelligence to a third party with reason to believe that the enemy might receive it,
could receive it, or even would likely receive it, is insufficient. Rather, you must be convinced
beyond a reasonable doubt that the accused, using the third party as a mere conduit, knowingly
and intentionally gave intelligence to the enemy. That is, the accused must have used the third
party for the purpose of giving the intelligence to the enemy.

If you ?nd that the accused honestly believed that he was giving intelligence only to a third party
and that he was not giving it to the enemy, you must ?nd the accused not guilty of the offense of
giving intelligence to the enemy through indirect means.

Authority: Article 104(2), UCMJ, 10 U.S.C. 904(2); United States v. Anderson, 68 M.J. 378,
387 (C.A.A.F. 2010); United States Batchelor, 22 C.M.R. 144, 156-159 (C.M.A 1956); United
States v. Olson, 20 C.M.R. 461, 464 (A.B.R. 1955).

(2) Indirect Means

The second element which the government must prove beyond a reasonable doubt is that the
accused gave the intelligence to the enemy through indirect means.

The term ?indirect? is intended to reach the usage of intermediaries for the purpose of conveying
information to the enemy. The Government must prove that the accused had the general intent to
use an intermediary to provide the infonnation to the enemy and that the accused actually knew
that by giving information to the intermediary he was giving the intelligence to the enemy.
Absent an intention that the intermediary convey the infonnation to the enemy, the accused?s
communication with a non-enemy individual or entity is not an ?indirect? communication with
the enemy regardless of whether an enemy ultimately was able to receive the substance of the
information that the accused provided to the non-enemy.

If you ?nd that the government failed to prove beyond a reasonable doubt that the accused
intended to use an intermediary to convey the intelligence to the enemy, then you must ?nd the
accused not guilty.

Authorig: Article 104(2), UCMJ, 10 U.S.C. 904(2); United States v. Anderson, 68 M.J. 378,
387 (C.A.A.F. 2010); United States Batchelor, 22 C.M.R. 144, 156-159 (C.M.A. 1956).

(3) E:

The third element which the government must prove beyond a reasonable doubt is that the entity
that received the information was an enemy.

22473

?Enemy? includes (not only) organized opposing forces in time of war, (but also any other
hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades)
(and includes civilians as well as members of military organizations). (?Enemy? is not restricted
to the enemy government or its anned forces. All the citizens of one belligerent are enemies of
the government and the citizens of the other.)

If you ?nd that the government failed to prove beyond a reasonable doubt that the entity that the
accused intended to provide the information to, either directly or indirectly, was an enemy, then
you must ?nd the accused not guilty.

Authority: Article 104(2), UCMJ, I0 U.S.C. 904(2); Military Judges? Benchbook, DA Pam
27-9, para. 3-28-4.

(4) Intelligenc?riformation Was True

The fourth element which the government must prove beyond a reasonable doubt is that the
intelligence information was true, at least in part. ?Intelligence? means any helpful information,
given to and received by the enemy, which is true, at least in part.

If you ?nd that the government failed to prove beyond a reasonable doubt that the information
that that the accused intended to provide was true, at least in part, then you must ?nd the accused
not guilty.

Authorig: Article 104(2), UCMJ, 10 U.S.C. 904(2); Military Judges? Benchbook, DA Pam
27-9, para. 3-28-4.

2. The Defense respectfully requests the above instructions and de?nitions be given by the
Court.

Respectfully submitted,





DAVID EDWARD COOMBS
Civilian Defense Counsel



IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE MOTION FOR
v. SPECIFIC INSTRUCTIONS:
THE SPECIFICATION OF
CHARGE I
MANNING, Bradley E., PFC
U.S. Anny, -
Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall, DATED: 22 June 2012
Fort Myer, VA 2221

RELIEF SOUGHT

1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rule
for Courts Martial (R.C.M.) 920(c), requests this Court to give the following instruction to the
members on the ?knowledge? element of the violation of Article I04 charged in the Speci?cation
ofCharge l:

?in order to find the accused guilty of giving intelligence to the enemy through indirect means,
you must be convinced beyond a reasonable doubt that the accused had actual knowledge that he
was giving intelligence to the enemy through the indirect means. An accused has actual
knowledge that he is giving intelligence to the enemy through indirect means only when he
knowingly and intentionally provides intelligence to the enemy through the indirect means.
Providing intelligence to a third party with reason to believe that the enemy might receive it,
could receive it, or even would likely receive it, is insufficient. Rather, you must be convinced
beyond a reasonable doubt that the accused, using the third party as a mere conduit, knowingly
and intentionally gave intelligence to the enemy. That is, the accused must have used the third
party for the purpose of giving the intelligence to the enemy. If you find that the accused
honestly believed that he was giving intelligence only to a third party and that he was not giving
it to the enemy, you must find the accused not guilty of the offense of giving intelligence to the
enemy through indirect means.?

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)(l

I APPELLATE Ubq

of Page(s) l8



FACTS

3. PFC Manning is charged with ?ve speci?cations of violating a lawful general regulation, one
speci?cation of aiding the enemy, one speci?cation of conduct prejudicial to good order and
discipline and service discrediting, eight speci?cations ofcommunicating classi?ed infonnation,
?ve speci?cations of stealing or knowingly converting government property, and two
speci?cations 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. Speci?cally, the Speci?cation of Charge I alleges that PFC Manning ?did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or
about 27 May 2010, without proper authority, knowingly give intelligence to the enemy, through
indirect in violation of Article 104. See Charge Sheet. The Defense, in its Motion for
a Bill of Particulars, asked the Government to specify the indirect means allegedly used by PFC
Manning to give this intelligence to the enemy. ?The Government responded Manning
knowingly gave intelligence to the enemy by transmitting certain intelligence, speci?ed in a
separate classi?ed document, to the enemy through the WikiLeaks website.?? Appellate Exhibit
at 1 (quoting Government Response to Defense Motion for a Bill of Particulars). The
Government has further clari?ed that the ?enemy? to whom PFC Manning allegedly indirectly
gave intelligence is Al-Qaida, Al-Qaida in the Arabian Peninsula, and an entity speci?ed in
Bates Number 00410660 through 00410664.

5. On 26 April 2012, this Court denied the Defense Motion to Dismiss the Speci?cation of
Charge I for Failure to State an Offense. See Appellate Exhibit at 5. In that decision,
this Court held that ?Giving Intelligence to the Enemy under Article 104(2) requires actual
knowledge by the accused that he was giving intelligence to the enemy.? Id. at 2 (emphases
supplied). This Court also invited the parties to propose instructions for the ?knowledge? and
?indirect means? elements ofthe violation of Article 104 charged in the Speci?cation of Charge
1. See id. at 4. This motion sets forth the Defense?s proposed instructions for the ?knowledge?
element of that offense.?


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. Attachment A, Manual for Military Commissions (MMC) excerpt; and

c. Attachment B, Military Commissions Act of 2009 excerpt.

In regards to the other elements ofthe violation ofArticle 104 charged in the Speci?cation ofCharge 1, including
the ?indirect means? element, the Defense relies on the Defense Requested Instruction: Article I04.

2



LEGAL AUTHORITY AND ARGUMENT

7. As this Court has held, an accused must have actual knowledge that he is giving intelligence
to the enemy in order to be convicted ofa violation of Article 104(2). See Appellate Exhibit
at 2. This actual knowledge element is an essential element ofa violation ofArticle
104(2), regardless of whether that violation involves directly or indirectly giving intelligence to
the enemy. See id. In light of this Court?s ruling, the Defense proposes that the Court instruct
the members that where, as here, the accused is charged with indirectly giving intelligence to the
enemy, this actual knowledge element requires the Government to prove beyond a reasonable
doubt that the accused, using the third party as a mere conduit, knowingly and intentionally gave
intelligence infonnation to the enemy. In other words, the Government must prove that the

_accused used the third party for the purpose of giving intelligence information to the enemy.

8. This instruction on the actual knowledge element is most consistent with the case law
interpreting Article 104(2), including this Court?s 26 April 2012 decision. Additionally, it is
supported by both Offense 26 ofthe Military Commissions Act, see 10 U.S.C. 950t(26), and
the common law of war.

9. Therefore, the Defense requests this Court to adopt its proposed instruction on the actual
knowledge element.

A. A ?Knowingly and Intentionally? Requirement is Consistent With the Case Law
Interpreting Article 104(2)

10. De?ning the actual knowledge element to require the Government to prove beyond a
reasonable doubt that the accused, using the third party as a mere conduit, knowingly and
intentionally gave intelligence information to the enemy is the de?nition that is most consistent
with the case law interpreting Article 104(2), including this Court?s 26 April 2012 ruling.
Moreover, any watered-down instruction on actual knowledge that would, for instance, be
satis?ed where the accused merely had knowledge that intelligence given to a third party might
be received by the enemy, could be received by the enemy, or even would likely be received by
the enemy, would impermissibly turn Article 104(2) into a strict liability offense.

1 1. Article 104(2) punishes ?[a]ny person who . . . (2) without proper authority, knowingly
harbors or protects or gives intelligence to, or communicates or corresponds with or holds any
intercourse with the enemy, either directly or indirectly.? 10 U.S.C. 904. The Manual for
Courts-Martial (MCM) explains that the textual requirement that an accused ?knowingly . . .
gives intelligence? requires the accused to have actual knowledge that he is giving intelligence to
the enemy. See MCM, Part IV, para. (?Actual knowledge is required but may be
proved by circumstantial evidence?).

12. Case law interpreting Article 104(2) makes clear that mere knowledge that the enemy might
receive the intelligence, or could receive the intelligence, or even would likely receive the
intelligence is insuf?cient to satisfy the actual knowledge requirement. Courts have uniformly



held that the Government must prove that the accused knowingly and intentionally gave
intelligence to the enemy under Article 104(2). See United States v. Anderson, 68 M.J. 378, 387
(C.A.A.F. 2010); United States v. Batchelor, 22 C.M.R. I44, 157 (C.M.A. United States
v. Olson, 20 C.M.R. 461,464 (A.B.R. I955).

13. In Olson, for example, the United States Anny Board of Review held that Article 104 ?does
require a general evil intent in order to protect the innocent who may commit some act in aiding
the enemy inadvertently, accidentally, or negligently.? 20 C.M.R. at 464. Similarly, in
Batchelor, the Court of Military Appeals explained that there was ?no doubt that [defense]
counsel are on sound ground when they assert that [Article 104] requires a showing of criminal
intent, and the Government concedes that premise to be true . . . . [S]urely an offense which is so
closely akin to treason and may be punished by a death sentence cannot be viewed as a ?public
welfare? kind of dereliction.? 22 C.M.R. at 157. Rather, the Court observed that proper
instructions for an Article 104 offense must require ?the ?nding of general criminal intent.? Id.
at 158. Finally, the Court of Appeals for the Anned Forces in Anderson, by comparing Article
104 with an offense charged under Article 134, emphasized that an accused?s intent behind the
conduct at issue matters in an Article 104 prosecution: ?Unlike Article 104, UCMJ, the general
offense as charged [as a violation of Article 134] prohibits the dissemination of the information
regardless of the intent behind that dissemination.? 68 M.J. at 387 (emphases supplied).

14. Additionally, this Court?s 26 April 2012 ruling provides further support that the actual
knowledge element of an Article 104(2) prosecution requires proof that the accused knowingly
and intentionally gave intelligence to the enemy. In that ruling, after holding that Article 104(2)
requires that the accused had actual knowledge that he was giving intelligence to the enemy, this
Court proposed the following instruction for knowledge:

Knowingly means Giving Intelligence to the Enemy under Article 104(2) requires
actual knowledge by the accused that he was giving intelligence to the enemy.
This is true whether the giving ofintelligence is by direct or indirect means. A
person cannot violate Article 104 by acting inadvertently, accidently, or
negligently. See MCM, Paragraph 28c(5)(c). US. v. Olson, 20 C.M.R. 461
(A.B.R. 1955).

Appellate Exhibit at 4 (emphases supplied). This instruction demonstrates that the act
of giving the intelligence to the enemy must be knowing and intentional; it cannot be an
inadvertent mistake, accident or negligent act. See id. This Court?s proposed definition of
?indirect means? further bolsters the conclusion that an accused must knowingly and
intentionally give intelligence to the enemy. This Court proposed the following definition of
?indirect means:?

?Indirect means? means that the accused knowingly gave intelligence to the
enemy through a party or in some other indirect way. The accused must
actually know that by giving intelligence to the 3? party he was giving
intelligence to the enemy through this indirect means.



Id. (emphasis supplied). Since ?[t]he accused must actually know that by giving intelligence to
the party he was giving intelligence to the enemy through this indirect id, an
accused cannot be found guilty of giving intelligence to the enemy where he gives intelligence to
a third party with the mere knowledge that the enemy might, could, or even would likely receive
the intelligence. Rather, the instruction properly requires that an accused, using the third party as
a conduit, knowingly and intentionally gives intelligence to the enemy.

15. Indeed, pennitting an Article l04(2) conviction where the accused gave intelligence to a

third party with the mere knowledge that the enemy might, could, or even would likely receive
the intelligence would convert Article 104(2) into a strict liability offense. Today, everyone
understands that information posted on a publicly accessible website can potentially be viewed
by anyone with Internet access. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 851 (1997)
(?Anyone with access to the Internet may take advantage of a wide variety of communication
and infonnation retrieval methods. These methods are constantly evolving and difficult to
categorize precisely. But, as presently constituted, those most relevant to this case are electronic
mail (e-mail), automatic mailing list services (?mail exploders,? sometimes referred to as
?listservs?), ?newsgroups,? ?chat rooms,? and the ?World Wide Web.? All ofthese methods can
be used to transmit text; most can transmit sound, pictures, and moving video images. Taken
together, these tools constitute a unique medium known to its users as ?cyberspace? located in
no particular geographical location but available to anyone, anywhere in the world, with access
to the Internet?).

16. Therefore, ifthe actual knowledge element ofArticle 104(2) only encompasses something
less than knowingly and intentionally giving intelligence to the enemy, then the actual
knowledge element would be satisfied in any case where anyone subject to the UCMJ causes
intelligence to be published on the Internet since everyone knows that anyone with Internet
access, including the enemy, could obtain information placed on the Internet. See Reno, 521
U.S. at 851. Not only does this result render the actual knowledge element of Article 104(2)
identi?ed by this Court in its 26 April 2012 ruling utterly toothless in all lntemet-intelligence
cases, it transforms Article 104 into a strict liability offense, punishing anyone who causes
intelligence to be published on the intemet, regardless of whether that act intentionally,
inadvertently, accidentally, or negligently gave intelligence to the enemy. Binding precedent
from the highest military court clearly forecloses such an expansive use of Article 104. See
Batchelor, 22 C.M.R. at I57 an offense which is so closely akin to treason and may be
punished by a death sentence cannot be viewed as a ?public welfare? kind of see
also Olson 20 C.M.R. at 464 (holding that Article 104 ?does require a general evil intent in order
to protect the innocent who may commit some act in aiding the enemy inadvertently,
accidentally, or negligently?); Court?s Ruling - Appellate Exhibit at 2, 4 person
cannot violate Article 104 by acting inadvertently, accidently, or

17. Simply put, one cannot knowingly give intelligence to the enemy without intentionally
giving the intelligence to the enemy. If one knowingly performs an act giving intelligence
to the enemy through indirect means), he intentionally performs that act. For instance, if a
Soldier is charged with arson and the mens rea for that offense is that the defendant ?knowingly
set fire,? ?knowingly? is equivalent to ?intentionally? intentionally set something on fire).
Even though the Government need not prove that the Soldier intended the further consequences



of his act that is, to burn down a building the Government still must prove that the Soldier
intended the initial actus reus. Cf Morissette v. United States, 342 U.S. 246, 270-71 (1952)
(explaining, when discussing the offense of knowing conversion of government property, that
?knowing conversion requires more than knowledge that defendant was taking the property into
his possession. He must have had knowledge of the facts, though not necessarily the law, that
made the taking a conversion. In the case before us, whether the mental element that Congress
required be spoken of as knowledge or as intent, would not seem to alter its bearing on guilt[,]
for it is not apparent how Morissette could have knowingly or intentionally converted property
that he did not know could be converted, as would be the case if it was in fact abandoned or if he
truly believed it to be abandoned and unwanted The same can be said for knowingly
giving intelligence to the enemy: whenever an accused, using a third party as a mere conduit,
knowingly gives intelligence to the enemy, he must, of necessity, also intentionally give the
intelligence to the enemy through the same indirect means.2 Including the ?knowingly and
intentionally? requirement in the actual knowledge element is simply a way to ensure that an
accused is not convicted because he has knowledge that an enemy might, could, or even would
likely receive the intelligence. If any of these loose conceptions of knowledge is the standard
adopted by the Court, Article 104(2) would punish giving intelligence to the enemy
?inadvertently, accidentally, or negligently.? Olson, 20 C.M.R. at 464. Well-established Article
104 precedent, including this Court?s 26 April 2012 decision, plainly forbids this result. See
Anderson, 68 M.J. at 387; Batchelor, 22 C.M.R. at 157; Olson, 20 C.M.R. at 464; see also
Appellate Exhibit at 2, 4 person cannot violate Article 104 by acting inadvertently,
accidently, or

18. Therefore, this Court should adopt in full the Defense?s proposed instruction and instruct the
members that where, as here, the accused is charged with indirectly giving intelligence to the
enemy, the actual knowledge element requires the Government to prove beyond a reasonable
doubt that the accused, using the third party as a mere conduit, knowingly and intentionally gave
intelligence information to the enemy.

B. A ?Knowingly and Intentionally? Requirement is Supported by Offense 26 of the
Military Commissions Act and by the Common Law of War

19. Offense 26 of the Military Commissions Act and the common law of war further support the
conclusion that the actual knowledge element of an Article 104(2) prosecution requires the
Government to prove that the accused knowingly and intentionally gave intelligence to the
enemy.

20. Offense 26 of the Military Commissions Act, entitled ?Wrongfully aiding the enemy?
(Offense 26), provides in full as follows:

2 Saying that an accused acted ?intentionally? in this context is not the same as saying an accused acted with any
type of speci?c intent or motive intent to aid the enemy). See Appellate Exhibit at 3. Rather, the term
?intentionally? here simply means that the accused intended to perform the act intended to give intelligence to
the enemy). In other words, it means that he did not act ?inadvertently, accidentally, or negligently.? Olson, 20
C.M.R. at 464; see Appellate Exhibit at 2, 4 person cannot violate Article 104 by acting inadvertently,
accidently, or negligently.?)



Any person subject to this chapter who, in breach of an allegiance or duty to the
United States, knowingly and intentionally aids an enemy of the United States, or
one of the co-belligerents of the enemy, shall be punished as a military
commission under this chapter may direct.

10 U.S.C. 950t(26) (emphasis supplied); see also Attachment A, Manual for Military
Commissions (MMC), Part IV, at 20-21 (2010 ed.) (containing this language). A comparison of
the statutory text of Offense 26 and Article 104, as well as an examination of the legislative
history of the Military Commissions Act, demonstrates that Offense 26 was directly patterned
after Article 104.

21. Offense 26 prohibits several acts punished by Article 104, including giving intelligence to
the enemy. Compare l0 U.S.C. I04 (punishing ?[a]ny person who aids, or attempts to
aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) without proper
authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds
with or holds any intercourse with the enemy, either directly or indirectly? (emphasis supplied)),
with MMC, Part IV, at 2] (?The means the accused can use to aid the enemy include but are not
limited to: providing arms, ammunition, supplies, money, or other items or services to the
enemy; harboring or protecting the enemy; or giving intelligence or other information to the
enemy.? (emphasis supplied)). Indeed, all forms of aiding the enemy prohibited by Offense 26
are also prohibited by Article 104.

22. The statutory text now contained in Section 950t(26) was supplied by the Military
Commissions Act of 2009. See Attachment B, Military Commissions Act of 2009, Pub. L. No.
tit. 18, l802, l23 Stat. 2l90, 2611 (codified at 10 U.S.C. 948a?950t). The language
of Offense 26 in Section 950(t)(26) replaced identical language in the Military Commissions Act
of 2006, which was contained in l0 U.S.C. Section 950v(b)(26). See 10 U.S.C. 950v(b)(26)
(2006) (containing language identical to that contained in Section 950t(26)). The Report of the
House Committee on Armed Services accompanying the Military Commissions Act of 2006
indicated that the offenses listed in then?Section 950v(b) (now Section 950t) were not new
offenses, but were rather modem war crimes or offenses triable by military commissions or
international courts:

[T]he committee believes the list [ofoffenses in 10 U.S.C. Section 950v(b)]
codifies offenses hitherto recognized as offenses triable by military commissions
or international courts. Most of the listed offenses constitute clear violations of
the Geneva Conventions, the Hague Convention, or both. Several constitute
?modern?day war crimes,? such as hijacking and terrorism, which constitute
practices contrary to the law of nations that can, and hereby do, have the same
status as traditional war crimes.

H.R. Rep. No. 109-664, pt. l, at 28 (2006).
23. Moreover, Section 950p(d) makes clear that the offenses currently listed in Section 950t,

including Offense 26, are not new offenses, but are instead codi?cations of offenses traditionally
triable by military commission. See 10 U.S.C. 950p(d) (?The provisions ofthis subchapter

I

codify offenses that have traditionally been triable by military commission. This chapter does
not establish new crimes that did not exist before the date of the enactment of this


24. Therefore, the close similarity between Offense 26 and Article 104, when coupled with the
fact that Offense 26, like all offenses listed in Section 950t, is not a new offense but simply a
codi?cation of an existing offense, leads to the inescapable conclusion that Offense 26 was
directly patterned a?er Article 104.

25. Offense 26 requires an accused to knowingly and intentionally aid the enemy. See 10 U.S.C.
950t(26); see also MMC, Part IV, at 21 (listing the following as the second element ofOffense
26: ?The accused intended to aid the Since Offense 26 is not a new offense, see 10
U.S.C. 950p(d), and is obviously patterned after Article 104, this requirement that an accused
knowingly and intentionally aid the enemy must come from Article 104. Accordingly, where, as
here, the accused is alleged to have aided the enemy by giving intelligence to the enemy, see
MCM, Part IV, para. (?Giving intelligence to the enemy is a particular case of
corresponding with the enemy made more serious by the fact that the communication contains
intelligence that may be use?xl to the enemy for any of the many reasons that make information
valuable to belligerents?), Article 104 requires that the accused knowingly and intentionally give
the intelligence to the enemy.

26. If Article 104 does not require an accused to knowingly and intentionally give intelligence to
the enemy, a very troublesome absurdity would exist. In a prosecution of a terrorist under
Offense 26, the Government would be required to prove that the terrorist knowingly and
intentionally aided the enemy. Yet in a prosecution of a Soldier under Article 104 for giving
intelligence to the enemy, the Government would only be required to prove that the Soldier
knowingly gave intelligence to the enemy. Thus, for the exact same conduct, a terrorist would
bene?t from a friendlier mens rea than a Soldier would. Congress could not have intended to
give terrorists a more protective mens rea than it gave to Soldiers. It de?es all logic to think that
a terrorist would fare better in an American court for aiding the enemy than a U.S. soldier would.
To make sense ofthis all, Article 104, like Offense 26, must require the Government to prove
that the accused knowingly and intentionally gave intelligence to the enemy.

27. Additionally, aiding the enemy by giving intelligence to the enemy is one ofthe ?common
law? war crimes. The Government has recently explained this point in its brie?ng in another
case. See Brief for Respondent United States at 41-45, Hamdan v. United States, No. 11-1257
(D.C. Cir. Jan. 17, 2012). In its brief before the District ofColumbia Circuit in Hamdan, the
Government explained that ?[s]ince the adoption of the Constitution, Congress and the Executive
have repeatedly employed their war-making powers to identify . . . ?common law? war crimes
and to make those offenses triable by military tribunal, rather than by an Article 111 Court.? Id. at
41. The Government then identi?ed aiding the enemy as one of these ?common law? war
crimes. Id. at 44 (explaining that ?aiding the enemy (by someone with a duty of loyalty to the
United States), although not a war crime under international law, has long constituted an offense
under the U.S. law of war, making the offender subject to trial by military tribunal?). The
Government identi?ed the Articles of War of 1775 as the ?rst American military law to punish
aiding the enemy and from there concluded that ?[t]his prohibition on aiding the enemy has

0 22482

remained substantially the same during the past 235 years.? 1d.; see also id. at 44-45 n.l5 (citing
various provisions punishing aiding the enemy over the years, including Article 104).

28. The Government then observed that:

[b]oth aiding the enemy in violation ofa duty of loyalty and spying [which the
Government also identified as constituting a ?common law? war crime] are
offenses subject to trial by military commission under the 2006 and 2009
[Military Commissions Acts], and both are offenses that constitute . . . this

3 CG

nation common law of war.?

Id. at 45 (footnote omitted); see also id. at 45 n.l6 (citing 10 U.S.C. 950t(26) and I0 U.S.C.
950v(b)(26)). Offense 26, codi?ed at Section 950t(26), thus represents the most recent
installment ofthe common law of war offense of aiding the enemy which ?has remained
substantially the same during the past 235 years.? Id. at 44. As mentioned above, Offense 26
does not create a new offense in any way. See 10 U.S.C. 950p(d). Therefore, it is simply a
present restatement of the common law of war offense of aiding the enemy. As Offense 26
contains a requirement that the accused knowingly and intentionally aid the enemy, that
knowingly and intentionally requirement must come from the common law of war offense,
unchanged for 235 years. Because Article 104 represents the modern version of this common
law of war offense, it too must include the knowingly and intentionally requirement for the
offense of giving intelligence to the enemy.

29. Therefore, Offense 26 and the common law of war provide further evidence that the Defense
instruction, requiring as it does that the Government prove that the accused knowingly and
intentionally gave intelligence to the enemy through indirect means, is correct and should be
adopted in full by this Court.

CONCLUSION

30. For the reasons articulated above, the Defense requests that this Court give the following
instruction to the members on the ?knowingly? element of the Specification of Charge 1:

?In order to find the accused guilty of giving intelligence to the enemy through indirect means,
you must be convinced beyond a reasonable doubt that the accused had actual knowledge that he
was giving intelligence to the enemy through the indirect means. An accused has actual
knowledge that he is giving intelligence to the enemy only when he knowingly and intentionally
provides intelligence to the enemy through the indirect means. Providing intelligence to a third
party with reason to believe that the enemy might receive it, could receive it, or even would
likely receive it, is insufficient. Rather, you must be convinced beyond a reasonable doubt that
the accused, using the third party as a mere conduit, knowingly and intentionally gave
intelligence to the enemy. That is, the accused must have used the third party for the purpose of
giving the intelligence to the enemy. If you find that the accused honestly believed that he was
giving intelligence only to a third party and that he was not giving it to the enemy, you must

0 22483

the accused not guilty of the offense of giving intelligence to the enemy through indirect

means.

Respectfully submitted,




DAVID EDWARD COOMBS
Civilian Defense Counsel

3 This last sentence of the Defense's proposed instruction is simply a necessary consequence of this Court?s ?nding
that the accused must have actual knowledge that he is giving intelligence to the enemy. Where an offense requires
actual knowledge as to some fact actual knowledge that an accused was giving intelligence to the enemy), an
honest mistake as to that fact without regard to the reasonableness of the mistake - is a complete defense to the
offense. See Um'ledSlates v. Nix, 29 C.M.R. 507, 51] (C.M.A. 1960); UnitedStates v. Walters, 28 C.M.R. 164, 167
(C.M.A. 1959) subjective knowledge is required, reasonableness is not one ofthe criteria which should
be used in instructing on mistake of law or

10

. . 22484

ATTACHMENT A



MANUAL FOR MILITARY COMMISSIONS
UNITED STATES

(2010 EDITION)

22486

Table of Contents - Manual for Military Commissions
c. Comment
d. Maximum punishment

1V-19
IV-19

(24) TERRORISM
a. Text
b. Elements
c. Comment
d. Maximum Punishment

IV-19
IV-19
IV-19
IV-19
IV-20

(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM
a. Text
b. Elements
c. Definition
d. Maximum Punishment

lV-20
IV-20
IV-20
IV-20
IV-20

(26) WRONGFULLY AIDING THE ENEMY
a. Text
b. Elements
c. Comment
d. Maximum punishment

IV-20
IV-20
lV-21
lV-21
IV-21

(27) SPYING
a. Text
b. Elements
c. Comment
d. Maximum punishment

IV-21
IV-21
IV-21
1V-22
lV-22

(28) ATTEMPTS
a. Text
b. Elements
c. Maximum punishment

lV-22
IV-22
IV-22
lV-23

(29) CONSPIRACY
a. Text
b. Elements
c. Comment
d. Maximum Punishment

lV-23
IV-23
lV-23
IV-23
IV-24

(30) SOLICITATION
a. Text
b. Elements
c. Maximum punishment

IV-24
IV-24
IV-24
IV-25

(31) CONTEMPT
a. Text

IV-25
IV-25

xxiv

22487

d.^^^^^^^^^^^.^^^^^^.O^ath, if th^d^ath of ^ny person occurs asaresult of the terrorist act.
Otherwise, confinement fbr life.
(2^)PROVIDINGMATERIALSUPPORTFORTERRORISM.
a. 7^^^. "Any person subject to this chapter v^ho provides material stipport or resources, knowing
or intending that they are to be used in preparation fOr, or in carrying out, an act ofterrorism(as set
fOrth in paragraph (24)of this section), or who intentionally provides material support or resources
to an intemational terrorist organisation engaged in hostilities against the United States, knowing
that such organization has engaged or engages in terrorism (as so set forth), shall be punished asa
military commission under this chapter may direct."
b. .^^^B^^^^.^.Theelementsofthis offense can be met either by meeting (i) all ofthe elements in A,
or (ii) all ofthe elements in B,or (iii) all of the elements in bothAandB:
A. (l)The accused provided material support or resources to be used in preparation for, or
in carrying out. an act oftcrrorism(as set forth in paragraph (24));
(2) The acctised knew or intended thatthe material support or resources were to be used for
those purposes; and
(3) The conduct took place in the context ofand was associated with an hostilities.
B. (l)The accused provided material support or resources to an international terrorist
organisation engaged in hostilities against the L^nited States;
(2) The accused intended to provide such material support or resources to such an
international terrorist organization;
(3) The accused knew that such organization has engaged or engages in terrorism; and
(4) The conduct took place in the context ofand was associated with hostilities.
c. ^^^^^i^^."Material support or resources'means any property,tangible or intangible, or service,
including currency or monetary instruments orfinancialsecurities,financialservices, lodging,
training, expert advice or assistance, safeho^scs. false documentation or identification,
communications equipment, faciliti^s,weapons.l^ti^al substances, explosives, p^rsoni^el(one or
more individuals who may be or include oneself), and transportation, except medicine or religious
materials.
d. ^^^^^^^^^^.^^^^^^. Confinement for lite.
(26) WRONGFULLYAIDING THE ENEMY.
a.Ti^^^. "Any person subject to this chapter ^ho, in breach ofan allegiance or duty to the United
States, knowingly and intentionally aidsancncmy ofthe Ignited States, oroneofthccoIV20

22488

b^lli^^rents of th^^n^my,shallb^ punished asamilitary commission under this chapter may
direct."
b. ^^^B^^^^.^.
(1) The accused aided the enemy;
(2) The accused intended to aid the enemy;
(3) At the time of the accused'sactions, the accused had an allegiance or duty to the United
States; and
(4) The accuscd'sacts and intentions, taken together,comprisedabreach of the accused's
allegiance or duty to the United States; and
(5) The conduct took place in the context ofand was associated with hostilities.
c. C^^^^^^.
(1) The means the accused can use to aid the enemy include but are not limited to:
providing arms, ammunition,supplies, money,other items or services to the enemy; harboring or
protecting the enemy; or giving intelligence or other information to the enemy.
(2) The requirement that conduct be wrongful for the crime necessitates that the accused act
without proper authority. For example, furnishing unprivileged enemy belligerents detained during
hosfilities with subsistence quarters in accordance with applicable orders or policy is not aiding the
enemy.
(^)Th^ requirement that conduct b^ wrongful for this crime necessitates that theaccused
owe allegiance or some duty to the United States of America. For example, citizenship, resident
alien status, oracontractual relationship in or with the United States is sufficient to satisfy this
requirement so long as the relationship existed atatime relevant to the offense alleged.
d. .^^^^^^^^^^.^^^^^^. Confinement fbr life.
(27)SPYING.
a. ^^^. "Any person subject to this chapter who, in violation ofthe law ofwar and with intent or
reason to believe that it is to be used to the injury ofthe Ignited States or to the advantage ofa
foreign power, collects or attempts to collect information by clandestine means or while acting
under false pretenses, fbr the purpose ofconvcying such information to an enemy ofthe United
Statics, or one of the co-belligerents of the enemy.shall be punished by death or such other
punishment asamilitary commission under this chapter may direct."
b. ^^^^^^^.^.

1V21

ATTACHMENT

22489

22490

H. R. 2647—385

TITLE XVin—MILITARY COMMISSIONS
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.

1801.
1802.
1803.
1804.
1805.
1806.
1807.

Short title.
Military commissions.
Conforming amendments.
Proceedings under prior statute.
Submittal to Congress of revH.sed rules for military commissions.
Annual reports to Congress on trials by military commission.
Sense of Congress on military commission system.

SEC. 1801. SHORT TITLE.

This title may be cited as the "Military Commissions Act of
2009".
SEC. 1802. MILITARY COMMISSIONS.

Chapter 47A of title 10, United States Code, is amended to
read as follows:
"CHAPTER 47A—MILITARY COMMISSIONS
"SUBCHAPTER
" I . General Provisions
" I I . Composition of Military Commissions
"III. Pre-Trial Procedure
"TV. Trial Procedure
"V. Classified Information Procedures
"Vl. Sentences
"VII, Post-Trial Procedures and Review of Military Commissions
"VIII, Punitive Matters

Sec.
948a.
948h.
948q.
949a,
949p-l.
949s.
950a,
950p.

"SUBCHAPTER I—GENERAL PROVISIONS
"Sec,
"948a. Definitions.
"948b, Miiitar)' commissions generally,
"948c. Persons subject to military commissions.
"948d. Jurisdiction of military commissions.

"§948a. Definitions
"In this chapter:
"(1) ALIEN.—The term 'aUen' means an individual who
is not a citizen of the United States.
"(2) CLASSIFIED INFORMATION.—The term 'classified
information' means the following:
"(A) Any information or material that has been determined by the United States Government pursuant to
statute. Executive order, or regulation to require protection
against unauthorized disclosure for reasons of national
security.
"(B) Any restricted data, as that term is defined in
section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C.
2014(y)).

22491

HR2^47^22

in^^nt^in^^^^^ 1^^^^ ^1^^ ^0^^ ti^^^ in ^i^^^^i^^t^ion ^i^,

or in carrying out, an act of terrorism (as set forth in
paragraph (24) o f t h i s section), or who intentionally pro
vides material support or resources to an international
terrorist organization engaged in hostilities against the
United States, l^nowing that such organization has engaged
or engages in terrorism (as so set forth), shall be punished
a s a m i l i t a r y commission under this chapter may direct.
"(B)^TERIALSIIPPORTORRESOCI^CESDEFINED.—In
thi^ para^aph, the term 'material support or resources'
has the meaning ^ven that term in section 2^^9A(b) of
title 18
''(2^1^^I^ONOFCLLyAIDlNCTHEFNE^t^^^^
t^ thi^ ch^pt^r who. in br^^ch of i^n ^fi^^i^nc^ or duty to
theUnited States, l^nowinglyand intentiot^ally aid^ anenemy
of the United Stated, or otte of the co belligerents of the enetny,
shallbepunishedasa militarycommi^^iot^ under this chapter
may direct.
"(27)SpyiNO^Any person subject t o t h i s chapter who,
in violation o f t h e law o f w a r and with intent or reason to
believethat i t is to beusedto the injuryof theUnited States
or to t^he advantage of a foreign powder, collects or attempts
to collect information by clat^destine mean^ or while acting
under f^l^e pretenses, for the purpose of conveying such
information to an enemy of the United Stated, or ot^e of the
cobelligerents of the enemy, shallbepuntshed by death or
such other punishment as a military commission under thts
chaptermay direct
"(28)ATTEMPTS.^
''(A)lNCENER.^L.—Any person subject tothis chapter
who attempts to commit any offense punishable by this
chapter shallbepunished a s a m i l i t a r y commission under
this chapter may direct.
''(B^ScoPE OF OFFENSE.—An act, done with specific
intet^ttocommit an offense under this chaptet^,amounting
to more than mere preparation and tendir^g. even though
failing, to effect its commission, is an attempt to commit
thatoffen^^e.
"(C)EFi^^CTCF CONSUMMATION.—Any person subject
tothis chapter may be convictedofan attempt to commit
an offense although it appears on the trial that the offense
wa^ consummated.
"(29) CONSPIRACY —Any person subject to this chapter who
conspired to commit one or more substantive offenses triable
by militat^^ commission underthi5subchapter,and whol^nowingly does any overt act to efii^ct the object of the conspiracy,
^hall be punished, ifdeath results to one or more of the victims,
by death or such other putu^hment a s a m i l i t a r y commission
under this chapter may direct, and, i f death does not result
toany of the victims, by such punishment, otherthan death,
asarnilitary^ commissionunderthis chapter may direct
''(^0) SOLICITATION.—Any person subject to this chapter
who solicits or advises another or othet^s to commit one or
more substantive offenses triable by military commission under
this chapter shall,ifthe offense solicited or advised is attempted
or committed, be punished with thepuni^hment providedfor
th^coinmi^^ioiiofth^offi^ii^^, hut, if fh^off^r^^^^oli^it^dor

. . 22492

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITEDSTATES
RENEWED MOTION TO
v. DISMISS FOR FAILURE TO
STATE AN OFFENSE:
SPECIFICATIONS 13 AND I4
MANNING, Bradley E., PFC OF CHARGE II
U-3- Army? -
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 22 June 2012
Fort Myer, VA 2221]
RELIEF SOUGHT

I. In light of the Government?s newly articulated theory on ?exceeds authorized access,? PFC
Bradley E. Manning, by counsel, pursuant to applicable case law and Rule for Courts Martial
(R.C.M.) again requests this Court to dismiss Speci?cations I3 and I4 of Charge ll
because the Government has failed to permissibly allege that PFC Manning?s alleged conduct
exceeded authorized access within the meaning of 18 U.S.C. Section l030(a)(l).

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.

FACTS

3. Relevant to this motion, PFC Manning is charged with two speci?cations of knowingly
exceeding authorized access to a government computer, in violation of Section l030(a)(l) and
Article 134, Uniform Code of Military Justice (UCMJ) 10 U.S.C. 934 (2010).

4. In Specification I3 of Charge II, the Government pleads that PFC Manning

did, at or near Contingency Operating Station Hammer, Iraq, between on or about
28 March 20 0 and on or about 27 May 20l0, having knowingly exceeded
authorized access on a Secret Internet Protocol Router Network computer, and by
means of such conduct having obtained . . . more than seventy-?ve classi?ed
United States Department of State cables, willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted the said
infonnation, to a person not entitled to receive it, with reason to believe that such

APPELLATE

Pa?e_; ofPage(s) a I

. . 22493

information so obtained could be used to the injury of the United States, or to the
advantage of any foreign nation, in violation of 18 U.S. Code Section


Charge Sheet, Speci?cation 13. Speci?cation I4 ofthe same charge alleges that PFC Manning

did, at or near Contingency Operating Station Hammer, Iraq, between on or about
15 February 2010 and on or about 18 February 2010, having knowingly exceeded
authorized access on a Secret Internet Protocol Router Network Computer, and by
means of such conduct having obtained . . . a classi?ed Department of State cable
titled ?Reykjavik-13?, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted the said infomiation, to a person not
entitled to receive it, with reason to believe that such information so obtained
could be used to the injury of the United States, or to the advantage of any foreign
nation, in violation of 18 U.S. Code Section

Id., Speci?cation 14.

5. On 10 May 2012, the Defense ?led a motion to dismiss Speci?cations l3 and 14 of Charge 1]
for failure to state an offense. In that motion, as well as in its Reply Motion, the Defense urged
this Court to adopt the narrow interpretation of the phrase ?exceeds authorized access? that an
accused exceeds authorized access only when he bypasses technical restrictions on access and
thereby obtains or alters infonnation he is not authorized to obtain or alter - and to reject the
Govemment?s expansive interpretation of that phrase. The Defense argued that because PFC
Manning was authorized to access every piece of infonnation that he allegedly accessed, he did
not exceed his authorize access under Section I030(a)(l

6. The Government ?nally provided its ?de?nitive? theory for the phrase ?exceeds authorized
access? in its Response to the Defense Motion. Appellate Exhibit XCI, at 3 n.l. In a brief
moment of uncharacteristic clarity, the Government stated without quali?cation that ?[t]he
Govemment?s theory is that the accused ?exceeded authorized access? when he violated the
Govemment?s explicit purpose-based access restriction on his SIPRNET computer.? Id. at 3.
Lest there be any lingering confusion on this point, the Government further clari?ed its position:

To the extent the United States did not clearly articulate its theory during oral
argument on 23 February 2012, this brief, along with the theory presented during
the Article 32 Investigation, should be considered the de?nitive source clarifying
the Govemment?s theory for ?exceeding authorized access? on a SIPRNET
computer.

Id. at 3 n.1 (emphasis supplied). In addition to belatedly providing its ?de?nitive? theory on
?exceeds authorized access,? the Government also stipulated to all of the facts contained in the
Defense Motion. Id. at 2. At no point in its response did the Government contest that PFC
Manning was authorized to access each and every piece of information he allegedly accessed.

7. On 8 June 2012, this Court adopted the narrow de?nition of ?exceeds authorized access?
advocated by the Defense. See Appellate Exhibit at 9. Speci?cally, this Court held
that ?the term ?exceeds authorized access? is limited to violations of restrictions on access to

2

. . 22494

infonnation, and not restrictions on its Id. (emphasis in original). At oral argument, this
Court explained the proper understanding of ?exceeds authorized access? as follows: ?the narrow
de?nition would be ?exceeds authorized access? would apply to ?inside hackers?, individuals
whose initial access to a computer is authorized but who access unauthorized infonnation or
?les.? See 8 June 2012 Article 39(a) audio; see also Appellate Exhibit at 7.

8. The Government?s ?definitive? theory on ?exceeds authorized access? did not stay de?nitive
for long. Though entirely absent from the Govemment?s Response (which the Government
referred to as the ?de?nitive source clarifying the Govemment?s theory for ?exceeding
authorized access,? Appellate Exhibit XCI, at 3 a new Government theory made its debut
during the oral argument and later in the 802 session. The Government indicated that it would
attempt to show that PFC Manning exceeded his authorized access by using a particular
unauthorized computer program Wget to download infonnation that he was authorized to
access onto his computer.l See 8 June 2012 Article 39(a) audio (CPT Morrow: ?There are other
considerations in this case, namely, as the evidence will show, the use of an unauthorized
program to download infonnation?).

9. Wget is a computer program that retrieves content from web servers, and is part of the GNU
Project (a free software, mass collaboration project, announced on September 27, 1983, by
Richard Stallman at MIT). Its name is derived from World Wide Web and get/7' Although the
program was not apparently officially authorized for the individual user, it was authorized for
use on the Anny Server components ofthe system. See Attachment A. As such, Wget is a
program that is authorized to be used on certain military computers. Id.

10. Even while hinting at this new theory at the eleventh hour, the Government still did not
dispute that PFC Manning was authorized to access all of the infonnation he allegedly accessed.



1 1. The Defense does not request any witnesses be produced for this motion. The Defense
respectfully requests this court to consider the previous submissions of the parties. The Defense
also requests the Court to consider the following attachments to this motion:

a) Attachment A email referencing authorization of Wget; and

b) Attachment Classi?ed Attachment, Intelink Logs Forensic Report, Bates 00124331.3

1 Consistent with its practice throughout this case, the Government has provided the Defense with the most skeletal
version ofits theory. Accordingly. the new Government theory articulated above is the Defense?s best guess based
on the description provided by the Government. As was the case with the Govemment?s previous
?de?nitive? theory. everyone will have to wait until the Government?s Response to this motion reveals the
Government?s new ?de?nitive theory" dujour.

3 See see also

3 The Defense requests that the Government provide a copy ofthe speci?c Bates number page for the Court through
the Court Security Of?cer.

. . 22495

LEGAL AUTHORITY AND ARGUMENT

I2. The Government?s new theory is born of convenience, not of principle. As such, it does not
withstand careful scrutiny. PFC Manning?s use of an unauthorized program, Wget, to download
the information specified in Specification 13 of Charge 11 does not change and cannot change the
only fact that matters in the ?exceeds authorized access? inquiry: PFC Manning was authorized
to access each and every piece of information he allegedly accessed. The Government is simply
wrong in its theory that the use of an unauthorized program to download the information
converts what would otherwise be authorized access to that information into ?unauthorized
access? or ?exceeding authorized access.? Whether or not PFC Manning used Wget to download
the information is of no moment; under the language of Section I030, as well as this Court?s
ruling and the great weight of authority, PFC Manning could not have exceeded his authorized
access because he was authorized to obtain the infonnation he obtained.

l3. Moreover, the Government?s ?new? argument is simply a variation of its old ?definitive?
theory. Realizing that the explicit purpose-based restriction was getting it nowhere, the
Government fell back on its reliance on the manner in which the infonnation is downloaded -
here, through the use of an unauthorized program, Wget as being determinative of ?exceeds
authorized access.? Both the Government?s old theory and its new theory depend heavily on the
word ?so? in Section l030(e)(6). That dependency is, for the reasons discussed by the Defense
in its initial motion and reply, entirely misplaced. ?Exceeds authorized access? is not concerned
with the manner in which information is downloaded; it is rather concerned with whether the
defendant was authorized to obtain or alter the information that was obtained or altered.
Therefore, the Government?s expansive interpretation, in both its old and new formulations,
should be de?nitively laid to rest by this Court.

14. Additionally, the Government?s Wget theory does not even cover Speci?cation 14 of Charge
11. The forensic evidence relied on by the Government demonstrates that PFC Manning
downloaded the infonnation referenced in that Speci?cation directly onto his computer without
using Wget.4 Accordingly, the Government cannot in good faith maintain that its Wget theory
covers Speci?cation 14. Therefore, as the Government has not indicated any theory other than
its now-rejected explicit purpose-based restriction theory for the information in Speci?cation 14
of Charge 11, that specification should be dismissed.

15. Finally, this Court has the power to dismiss a specification where the dispositive issue is
capable of resolution without trial on the general issue of guilt. The Government does not
dispute that PFC Manning was authorized to access the information that he allegedly accessed.
Rather, it has simply offered legal theories as to why his otherwise authorized access exceeded
authorized access. The resolution of this legal issue whether the Government states a
cognizable legal theory of ?exceeds authorized access?) need not await trial on the general issue
of guilt. Such a legal issue is instead the quintessential example of an issue capable of resolution
without trial on the issue ofguilt.

4 The very purpose ofa program like Wget is to download multiple documents in a timely manner. A person would
not use Wget to download one document, which can simply be downloaded by clicking ?Save As? (or some
variation thereof).



16. For these reasons, this Court should dismiss Speci?cations 13 and 14 of Charge II.

A. A Person Exceeds Authorized Access Only When He Obtains or Alters Information
that He is Not Authorized to Obtain or Alter

17. A person ?exceeds authorized access? under Section 1030(e)(6) only when he obtains or
alters information that he is not authorized to obtain or alter. The language of Section
l030(e)(6), as well as this Court?s ruling and the great weight of authority, make this fact
abundantly clear. Where, as here, it is determined that the person was authorized to access
obtain or alter) the information at issue, the ?exceeds authorized access? inquiry ends. The
extraneous considerations that the Government has relied on with its new and old theories the
manner in which the information is downloaded and the purpose for which the information is
accessed or used are entirely irrelevant to the ?exceeds authorized access? inquiry. As the
Government does not and cannot dispute that PFC Manning was authorized to access the
infonnation speci?ed in Speci?cation 13 of Charge II, that speci?cation must be dismissed for
failure to state a cognizable offense.

18. Section 1030(e)(6) de?nes ?exceeds authorized access? as follows: ?the term ?exceeds
authorized access? means 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 so to obtain or alter[.]
18 U.S.C. 103 This de?nition demonstrates that the Computer Fraud and Abuse Act
(CFAA) is concerned with the relationship between the accesser and the information: is the
accesser entitled to obtain or alter the information at issue?

5?

19. This statutory de?nition is not concerned with the purposes for which the accesser obtains or
alters the information. it is also not concerned with the manner in which the accesser obtains or
alters the information. See Walsh Bishop Assocs., Inc. v. O?Brien, No. 11-2673
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
infomiation 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 is not based on use of
infonnation; it concerns Rather, the only relevant consideration under the statutory
de?nition of ?exceeds authorized access? is whether the accesser was entitled to obtain or alter
the information at issue. In this case, it is undisputed that PFC Manning was entitled to access
the infomiation. The Government?s Wget theory that PFC Manning exceeded authorized
access by using an unauthorized program to download the infonnation erroneously focuses on
the manner in which PFC Manning downloaded the information. But the manner in which he
downloaded the infomiation is beside the point, since at all times he remained entitled to access
the information in question.

20. The Govemment?s Wget theory is equally inconsistent with the 1996 legislative history of
Section 1030, which makes clear that the CFAA targets those who access information that they
are not authorized to access. As the report of the Senate Committee on the Judiciary explains,
?Section 1030(a)(1) would target those persons who deliberately break into a computer to obtain
properly classi?ed Government secrets then try to peddle those secrets to others, including
foreign governments.? S. Rep. No. 104-357, at 6 (1996) (emphasis supplied). One who accesses
infonnation he is entitled to access does not in any way ?deliberately break into a computer,? id.,

5

. . 22497

regardless of the program used to download the infonnation. Nothing in the 1996 legislative
history, or in any ofthe legislative history of Section 1030, provides an iota of support for the
Govemment?s theory that the manner in which infonnation is downloaded is determinative, or
even relevant, in the ?exceeds authorized access? inquiry.

21. Additionally, the Government?s focus on the manner in which the infonnation is
downloaded, rather than the authority to access the information, is wholly inconsistent with this
Court?s formulation of ?exceeds authorized access.? This Court properly framed the ?exceeds
authorized access? inquiry at oral argument: ??exceeds authorized access? would apply to ?inside
hackers?, individuals whose initial access to a computer is authorized but who access
unauthorized information or files.? See 8 June 2012 Article 39(a) audio (emphasis supplied); see
also Appellate Exhibit at 7. PFC Manning?s use of Wget an unauthorized program
on the computer to download the information at issue did not thereby make his access to the
information unauthorized.

22. A simple example demonstrates why this is so. Suppose that the only authorized web
browser on government computers is lntemet Explorer. Suppose further that a Soldier is
authorized to access certain diplomatic cables on that computer. If the Soldier used lntemet
Explorer to access those cables, no one not even the Government in this case would
characterize the Soldier?s actions as ?exceeding authorized access.? If a Soldier downloaded the
web browser Firefox to the Government computer, that browser would be an unauthorized
program, since the only authorized browser on the computer is lntemet Explorer. Would the
Soldier?s use of Firefox to obtain those same diplomatic cables make the Soldier?s access to
those cables unauthorized? Under the Government?s Wget theory, the answer would be yes. But
this cannot be the case under any sensible interpretation of ?exceeds authorized access.?
Whether he uses Internet Explorer or Firefox, the Soldier would be accessing the same cables
and in both cases he would be entitled to access those cables. While the Soldier?s installation of
an unauthorized program on a government computer may itself be a violation of the computer
use policy (and subject the Soldier to punishment under Article 92), the mere installation and use
of an unauthorized program to download infonnation cannot change the Soldier?s authorization
to access the underlying infonnation.

23. So it is here. Under the Government?s Wget theory, Wget was an apparently unauthorized
program for the individual user. But PFC Manning did not use Wget to ?access unauthorized
information or ?les.? See 8 June 2012 Article 39(a) audio. Rather, he used Wget to download
information that he was authorized to access. His authorization to access that information
remained unchanged irrespective of the manner in which he downloaded the infonnation. Under
this Court?s proper formulation of the phrase ?exceeds authorized access,? PFC Manning did not
?access unauthorized information or ?les.? See 8 June 2012 Article 39(a) audio. Accordingly,
he did not ?exceed authorized access.?

24. Moreover, the great weight of authority provides no support for the Govemment?s argument
that the manner in which infonnation is downloaded can determine whether a person ?exceeds
authorized access.? In United States v. Nosal, for example, the en banc Ninth Circuit explicitly
tied the concept of ?exceeds authorized access? to the defendant?s authorization to access the
particular information at issue: ?exceeds authorized access? would apply to inside hackers
(individuals whose initial access to a computer is authorized but who access unauthorized
information or 676 F.3d 854, 858 (9th Cir. 2012) (en banc) (second emphasis supplied);

6





see also Appellate Exhibit at 7 (?Nasal 111 de?nes ?exceeds authorized access? to
apply to inside hackers or individuals whose initial access to a computer is authorized but who
accesses unauthorized information or ?les.? (emphasis in original)). Nothing in the definitive
discussionof the narrow interpretation of ?exceeds authorized access? in Nasal gives any
indication that the manner in which a person downloads information has any bearing whatsoever
on whether the person is authorized to access that information. Along similar lines, the United
States District Court for the Southern District of New York recently held that ?a person who
?exceeds authorized access? has permission to access the computer, but not the particular
information on the computer that is at issue.? United States v. Aleynikav, 737 F. Supp. 2d 173,
191-92 (S.D.N.Y. 2010) (emphasis supplied). ln Aleynikov, as here, the Government did not
contest that the defendant was authorized to access the particular information at issue. See id at
191 (?The Government concedes that Aleynikov was authorized to access the source code for the
Trading System that he allegedly The court accordingly granted the defendant?s
motion to dismiss the CFAA count of the indictment. Id. at 194. Likewise, in a very recent
Section 1030 prosecution, the United States District Court for the Central District of California
found, in light of Nasal, that the defendant had not exceeded his authorized access because he
was authorized to access the information at issue. United States v. Zhang, No. CR-05-00812
RMW, 2012 WL 1932843 (N.D. Cal. May 29, 2012) (finding defendant not guilty of Section
1030(a)(4) and violations because defendant ?had ?authorized access? to the Marvell
Extranet when he downloaded the information from the Marvell Extranet in March 2005 because
he had active log?in credentials at that

25. Several civil cases similarly highlight why the Govemment?s Wget theory cannot be
sustained under the narrow interpretation of ?exceeds authorized access:? the inquiry is limited
to whether the access to the information is authorized and is not concerned with the manner in
which that information is downloaded. See, Ajuba Int LLC. v. Saharia, No. 1 1-12936,
2012 WL 1672713, at *12 (E.D. Mich. May 14, 2012) (holding that ?a violation [ofthe
for ?exceeding authorized access? occurs only where initial access is pennitted but the access of
certain information is not permitted.? (emphasis supplied)); Ryan, LLC v. Evans, No. 8:12?cv?
2012 WL 1532492, at *5 (M.D. Fla. March 20, 2012) (?Under a narrow reading
of the provisions of [Section] 1030, a violation for exceeding authorized access occurs where
initial access is pennitted but the access of certain information is not permitted.? (quotations
omitted) (emphasis supplied)).; id. at *6 (?Given that Evans and Espinosa appear to have had
unfettered access to the Ryan computers, data, information, and emails actually accessed, with

the right to add to, delete from, and upload and download matters therefrom, it is doubt?sl that
their conduct can be brought within the purview of either [Section] 1030(a)(2)(C) or [Section]
l030(a)(4) under the narrow reading of those sections.? (emphasis supplied)); WEC Carolina
Energy Solutions, LLC v. Miller, N0. 0:l0?cv?2775?CMC, 201 1 WL 379458, at *4 (D.S.C. Feb.
3, 201 1) under the CFAA, based on an allegation that an employee exceeded
authorized access, depends on whether the employee accessed information he was n_ot entitled to
access. WEC has not alleged that Miller or Kelley accessed information that they were not
?entitled to access.? Therefore its allegation falls outside the scope of this portion of the
(emphasis supplied)); Nat?! City Bank, NA. v. Republic Mortgage Home Loans, LLC, No. C09-
1550RSL, 2010 WL 959925, at *3 (W.D. Wash. March 12, 2010) CFAA violation occurs
only when an employee accesses information that was not within the scope of his or her
authorization.? (emphasis supplied)); id. (?It is undisputed that Westmark was authorized to
access, view, and utilize the Excel spreadsheet that forms the heart of plaintiffs CFAA claim

7



against him. There is no indication that Westmark accessed or obtained any information from
National City?s computers after he resigned his position with National City. If, as is the case
here, the employee were entitled to access the materials at issue, nothing in the CFAA suggests
that the authorization can be lost or exceeded through post-access conduct. On the other hand, if
an employee?s access is limited to certain documents, ?les, or drives, an effort on his part to
delve into computer records to which he is not entitled could result in liability under the
(citations omitted) (emphases supplied)); Lockheed Martin Corp. v. Speed, No. 580-
ORL-31, 2006 WL 2683058, at *5 (M.D. Fla. Aug. 1, 2006) (?By applying the plain meaning of
the statutory tenns to the facts of this case, it is clear that the Employees accessed with
authorization, did not exceed their authorization, and thus did not violate [Section] 1030(a)(4).
The analysis is not a difficult one. Because Lockheed permitted the Employees to access the
company computer, they were not without authorization. Further, because Lockheed permitted
the Employees to access the precise information at issue, the Employees did not exceed
authorized access. The Employees ?t within the very group that Congress chose not to reach,
those with access authorization. It follows that [Section] l030(a)(4) cannot reach them. The
gist of Lockheed?s complaint is aimed not so much at the Employees? improper access of the
ATARS information, but rather at the Employees? actions subsequent to their accessing the
infonnation. As much as Lockheed might wish it to be so, [Section] I030(a)(4) does not reach
the actions alleged in the Complaint.? (emphasis supplied)).

26. In sum, the Government does not dispute that PFC Manning was authorized to access each
and every piece of information covered in Speci?cation I3 of Charge ll. It instead argues that
his use of Wget to download the information speci?ed in Speci?cation 13 renders his otherwise
authorized access to that information an excess of his authorization. Such a theory ?nds no
support in Section 1030, its legislative history, and the rulings of this Court and so many others
that have adopted the narrow interpretation of ?exceeds authorized access.? Under that narrow
interpretation of the phrase, the only inquiry is whether the accesser is entitled to obtain or alter
the information at issue; the manner in which that infonnation is downloaded does not provide
an answer to that inquiry. Therefore, since PFC Manning was authorized to access all of the
information covered in Specification 13 of Additional Charge 11, that specification must be
dismissed.

B. The Government?s ?New? Theory is Simply a Variation of its Already Rejected

Expansive Interpretation

3

27. The Government new? theory of ?exceeds authorized access? is not really a new one at
all; rather, it is a slight tweak of its already rejected expansive interpretation. The explicit
purpose-based restriction theory is one fonnulation of the expansive interpretation of ?exceeds
authorized access.? The Wget theory, focusing as it does on the manner in which information is
downloaded, is simply another formulation of this same expansive interpretation. This Court?s
adoption of the narrow interpretation of ?exceeds authorized access? necessarily rejects both
fonnulations of the expansive interpretation. Accordingly, this Court should dismiss the Section
1030(a)(1) speci?cations.

28. In an attempt to support its explicit purpose-based theory of ?exceeding authorized access,?
the Government Response placed heavy emphasis on the word ?so? in Section l030(e)(6):

22499

. . 22500

?So? means the state or manner indicated or expressed.? Webster ?s New
Riverside University Dictionary 1 102 (1988). The presence of ?so? after
?entitled? in [Section] l030(e)(6) makes the de?nition 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? clari?es that the user might have been entitled to
obtain the infonnation in some other circumstances, but not in that manner or
under those circumstances. See 18 U.S.C. l030(e)(6) (?not entitled so to obtain
or alter?) (emphasis added).

Appellate Exhibit XCI, at 4 (emphases in original). The Government hoped that this expansive
de?nition could transform otherwise authorized access to infonnation into exceeding authorized
access in some circumstances namely, when the accesser violated explicit purpose?based
restrictions on access. The Government in Nosal made a similar desperate attempt to hinge the
expansive interpretation of ?exceeds authorized access? on this expansive de?nition of

In its reply brief and at oral argument, the government focuses on the word ?so?
in the same phrase. See 18 U.S.C. 1030(e)(6) (?accesser is not entitled so to
obtain or alter? (emphasis added)). The government reads ?so? to mean ?in that
manner,? which it claims must refer to use restrictions.

Nosal, 676 F.3d at 857 (emphasis supplied).

29. Both this Court and the Nosal Court, in adopting the narrow interpretation of ?exceeds
authorized access,? rejected this expansive de?nition of the word The Nosal Court rejected
this interpretation because it ?would transform the CFAA from an anti-hacking statute into an
expansive misappropriation statute.? Id. This Court reiterated these concerns in its ruling. See
Appellate Exhibit at 7 (?The Court, in Nosal at 857, agreed with the appellant?s
argument and disagreed with the prosecution?s attempt to make the CFAA into ?an expansive
misappropriation statute? when it was originally created as ?an anti-hacking

30. This already-rejected ?so? argument is also lingering in the background of the Government?s
Wget theory on ?exceeding authorized access.? Although the Government has yet to clearly
specify its theory or the legal basis for it, there is simply no way other than the now-discredited
?so? argument to get from the language of Section l030(e)(6), which focuses on the accused?s
authorization to access information, to the Government?s Wget theory, which focuses on the
manner in which the infonnation is downloaded. In other words, under the Wget theory, the
Government argues that PFC Manning used an unauthorized program to download information
that he was otherwise authorized to obtain. The Government does not dispute that PFC Manning
was authorized to access this information. Thus, the only way PFC Manning?s access could be
unauthorized under the Govemment?s theory is based on his access in these circumstances, see
Appellate Exhibit XCI, at 4, or his access of this information in this particular manner, see
Nosal, 676 F.3d at 857 his use of Wget. Either way, the only way the language of Section
1030(e)(6) would penn it such a theory would be if the word ?so? had the de?nition advocated by
the Government in Nosal and in this case in the Government?s Response.

31. Of course, the word ?so? in Section l030(e)(6) does not have that de?nition. Fortunately,
the Defense need not rehash the numerous arguments against the Government?s de?nition of

. . 22501

see Appellate Exhibit XC, at 12-13, and Appellate Exhibit XCII, at 2, 4-6, for the matter
has already been de?nitively decided by this Court. In its ruling, this Court adopted the narrow
interpretation of ?exceeds authorized access? and indicated that it would give instructions ?in
accordance with the narrow view Appellate Exhibit at 9. This Court
also clearly explained the narrow view of Nasal: ?Nasal de?nes ?exceeds authorized access?
to apply to inside hackers or individuals whose initial access to a computer is authorized but who
accesses unauthorized information or ?les.? Id. at 7 (emphasis in original). By rejecting the
Government?s expansive interpretation and by adopting the narrow interpretation in accordance
with Nasal, this Court properly rejected the ?so? argument once and for all.

32. In the end, the Government?s Wget theory is, like the explicit purpose-based theory before it,
a theory on use restrictions, not a theory on access restrictions. The Government?s Acceptable
Use Policy (AUP) perfectly illustrates this fact. The AUP is violated when a user installs an
unauthorized program, such as Wget. See Appellate Exhibit XCI, Enclosure 6, at 62 I will
use only authorized hardware and software. I will not install or use any personally owned
hardware, software, shareware, or public domain Therefore, as it attempted to do
with its explicit purpose-based theory of ?exceeds authorized access,? the Government is
attempting to use a violation of a use restriction under the AUP the installation and use of Wget
to show that PFC Manning exceeded authorized access. The problem with this effort, then and
now, is that ?the term ?exceeds authorized access? is limited to violations of restrictions on
access to information, and not restrictions on its Appellate Exhibit at 9
(emphasis in original). Irrespective of any violation of a use restriction that may have occurred,
PFC Manning did not hack into the computer to obtain information he was not authorized to
obtain. See S. Rep. No. 104-357, at 6 (1996) (?Section 1030(a)(1) would target those persons
who deliberately break into a computer to obtain properly classi?ed Government secrets then try
to peddle those secrets to others, including foreign governments.? (emphasis supplied));
Appellate Exhibit at 7 (?Nasal de?nes ?exceeds authorized access? to apply to
inside hackers or individuals whose initial access to a computer is authorized but who accesses
unauthorized information or ?les.? (emphasis in original)). Instead, PFC Manning was
authorized to access every piece of information he obtained.

33. For these reasons, Speci?cation 13 of Charge II must be dismissed.

C. The Evidence Unequivocally Demonstrates that PFC Manning Did Not Use Wget to
Obtain the Information Covered by Speci?cation 14 of Charge II

34. Even putting aside the issues with the Government?s Wget theory, it only applies to the
information covered by Speci?cation 13 of Charge II. It cannot apply to the information covered
by Speci?cation 14 of Charge II. Accordingly, as the Government has not articulated any theory
other than its now-rejected explicit purpose-based theory for how PFC Manning exceeded his
authorized access with respect to this information, Speci?cation 14 of Charge II should be
dismissed regardless of the merits of the Government?s Wget theory.

35. The forensic evidence indicates that PFC Manning did not use Wget, or any other
unauthorized program, to download the infonnation speci?ed in Speci?cation 14 of Charge 11.
See Classi?ed Attachment, Intelink Logs Forensic Report, Bates 00124331 (forensic report
indicating that the keyword ?Iceland? was searched for a total of fourteen times from both of
PFC Manning?s primary and secondary SIPRNET computers). Instead, the forensic evidence

10



. . 22502

shows that PFC Manning simply downloaded this information directly onto his computer. Id.
Therefore, as PFC Manning did not use Wget to download the information in Speci?cation 14 of
Charge 11, the Government?s new Wget theory simply cannot apply to this speci?cation.

36. Moreover, the Government apparently has no additional theory on how PFC Manning
exceeded his authorized access in obtaining this infonnation, other than its original explicit
purpose-based theory. ?[T]he Government stated in oral argument that it would present evidence
in addition to the Appellate Exhibit at 9. The Government has indicated,
albeit its Wget theory for the infonnation covered by Speci?cation 13 of Charge 11.
Yet it has offered no additional theory for the information covered by Speci?cation 14 of Charge
11. The reason for this glaring omission is obvious: The Government has no additional theory on
?exceeds authorized access? for Speci?cation 14. Thus, the only theory of ?exceeds authorized
access? put forth for Speci?cation 14 is the now?discredited explicit purpose-based theory. The
Government therefore has no acceptable theory as to how PFC Manning obtained this
information in excess of his authorization, and it does not contest that he was authorized to
obtain this infonnation. Accordingly, Speci?cation 14 of Charge 11 must be dismissed.

D. This Court Has the Authority to Dismiss a Speci?cation When its Underlying Legal
Theory is Incorrect

37. This Court does indeed have the power to dismiss a speci?cation where the dispositive issue
is capable of resolution without trial on the general issue of guilt. The Government does not
dispute that PFC Manning was authorized to access the infonnation that he allegedly accessed.
Instead, it has simply offered legal theories as to why his access exceeded authorized access.

The resolution of this legal issue whether the Government states a cognizable legal theory of
?exceeds authorized access?) need not await trial on the general issue of guilt. Such a legal issue
is instead the quintessential example of an issue capable of resolution without trial.

38. As this Court properly recognized, it has the power to dismiss a speci?cation before the
presentation of evidence. See Appellate Exhibit at 9 (?Federal cases dismissing
charges before evidence is presented do so under Federal Rule of Criminal Procedure 12. This
Court has the power to do the same under R.C.M. Rule 907(a) provides the
standard by which a pretrial motion to dismiss is to be judged: motion to dismiss is a request
to terminate ?Jrther proceedings as to one or more charges and speci?cations on grounds capable
of resolution without trial of the general issue of guilt.? R.C.M. 907(a) (emphasis supplied); see
also R.C.M. 905(?Any defense, objection, or request which is capable of determination without
the trial of the general issue of guilt may be raised before trial.? (emphases supplied)).
Therefore, where the dispositive issue with the speci?cation is entirely legal capable of
resolution without trial on the general issue of guilt), a pretrial motion to dismiss is the
appropriate vehicle by which to resolve that issue.

39. The issue presented by this motion whether the Government?s theory of ?exceeds
authorized access? is a permissible one is just such an issue. The issue is purely one of law:
whether a particular theory of proving an essential element of the offense is legally cognizable.
The Defense concedes, for the purposes of this motion, the facts alleged by the Government.
Additionally, the Government has at no point disputed that PFC Manning was authorized to
access all of the information speci?ed in Speci?cations 13 and 14 of Charge 11. The only point
of disagreement between the parties is whether the manner in which PFC Manning downloaded

ll



I

the information in Speci?cation 13 by using Wget, a program that was not authorized by the
AUP can constitute exceeding authorized access. The Defense submits that if a person is
authorized to access certain ?les, the use of a program like Wget to download those ?les cannot
change the fact that the person is still authorized to access those same ?les. This is not a factual
question which must be resolved after a trial on the general issue of guilt. Instead, this is a
purely legal question which is capable of resolution without any factual development.
Therefore, this Court should dismiss Speci?cations 13 and 14 of Charge II because the
Govemment?s legal theory of ?exceeds authorized access? is not cognizable. Trial on the
general issue of guilt cannot make an uncognizable legal theory a cognizable one.

40. Not only would delaying the inevitable the conclusion that the Government cannot
show, under any cognizable theory, that PFC Manning exceeded authorized access in accessing
this information) until trial serve no useful purpose, an accused would suffer substantial
prejudice if the Government was permitted to simply plead the elements of an offense in a
speci?cation knowing full well that it would be unable to prove an essential element at trial. To
illustrate why this is so, suppose that a Soldier is charged with several crimes for example,
burglary, larceny and sexual assault of a minor. Suppose further that the Government has
properly pled the elements of all of these offenses in the speci?cations, including the element of
the sexual assault of a minor offense that the victim is a minor. If the Government has alleged in
the speci?cation that ?the victim was a minor at the time of the offense? but it knows that the
victim was actually nineteen years old at the time of the offense, the Soldier would suffer severe
prejudice if that speci?cation was not dismissed pretrial for failure to state an offense. Since the
sexual assault of a minor speci?cation alleges all of the essential elements of that offense, it
would survive a motion to dismiss for failure to state an offense if military courts did not have
the authority to dismiss adequately pled speci?cations based on impermissible legal theories.
The Government would therefore be permitted to ?illy present its evidence on the sexual assault
offense, all the while knowing that the ?minority of the victim? element could not be satis?ed.
Only after the Government has fully presented its case would the Soldier be entitled to a ?nding
of not guilty under R.C.M. 917. At that late stage, the members would have heard all about the
conduct underlying the sexual assault offense. Even though the sexual assault of a minor offense
would be resolved in the Soldier?s favor, the members will still retire to deliberate on the
burglary and larceny offenses having heard about the Soldier?s conduct on the sexual assault
offense. The knowledge of that unsavory conduct may lead the members to ?nd the Soldier
guilty on the burglary and larceny offenses because of extraneous, legally irrelevant
considerations, such as a desire to punish the Soldier for the conduct underlying the sexual
assault offense, notwithstanding the entry of a ?nding of not guilty on that offense, or a belief
that the Soldier has a criminal character and probably committed the other offenses as well. In
either case, the motion for a ?nding of not guilty under R.C.M. 917 cannot protect the Soldier
from this danger of prejudice. The only vehicle that would adequately protect the Soldier from
this danger would be a vehicle that prevents the Government from fully presenting its case based
on an impermissible legal theory as to an essential element of an offense. That vehicle is the
motion to dismiss for failure to state an offense under R.C.M. 907(b)( 1

41. This danger of prejudice to the accused is not con?ned to the hypothetical realm. In this
case, PFC Manning is charged with twenty speci?cations in addition to Speci?cations I3 and 14
of Charge II. If the Government is permitted to fully present its case on Speci?cations I3 and 14
when its theory of ?exceeds authorized access? is legally insuf?cient, the Government will be

12

0 22504

pennitted to put forth evidence that PFC Manning disclosed numerous diplomatic cables. As
part of its proof on these offenses, the Government will also adduce evidence that the disclosure
of these cables caused, or could have caused, damage to interests of the United States. While
this proof is presented, the Government, the Defense, and this Court will all know that the
Govemment?s theory of ?exceeds authorized access? is legally insufficient. The only group that
will not know that the Government?s theory is legally insufficient will be the group deciding
PFC Manning?s guilt or innocence: the court?martial members. While a motion for a ?nding of
not guilty under R.C.M. 917 can ensure that the members do not ?nd PFC Manning guilty of
Speci?cations 13 and 14, it cannot erase from the minds of thejurors the evidence of the
disclosure of the cables and the potential damage caused by the disclosure. And it cannot
prevent that evidence from in?uencing consciously or subconsciously the members?
detennination of PFC Manning?s guilt or innocence on the remaining twenty speci?cations.
Only a pretrial dismissal for failure to state an offense under R.C.M. 907(b)( 1) can prevent the
danger of such grave prejudice to PFC Manning.

42. There is an additional reason why a pretrial dismissal under R.C.M. 907(b)(l), and not a
motion for a ?nding of not guilty under R.C.M. 917, should be used to dismiss a properly pled
speci?cation based on a legally insuf?cient theory as to an essential element. In this case, the
parties agree that clause 1 and 2 of Article 134 is a lesser-included offense (LIO) of the alleged
Section 1030(a)(l) offenses, provided, of course, that the Government?s legal theory underlying
the Section 1030(a)( 1) offenses is cognizable. If PFC Manning is forced to wait until the time
for a R.C.M. 917 motion before the legally insuf?cient Section 1030(a)( 1) offenses are resolved
in his favor, the Government would get the windfall of a LIO when the original speci?cation was
legally defective and should have been dismissed outright. In other words, the Government
would be able to prove a derivative offense the LIO even though the charged offense does
not withstand legal scrutiny. Therefore, in addition to the danger that the members will use the
evidence presented on the Section 1030(a)(1) offenses for improper purposes, PFC Manning
would be ?irther prejudiced in this regard. To avoid the danger of this prejudice, the Court must
exercise its power to dismiss this speci?cation pretrial pursuant to R.C.M. 907(b)(l).

43. For these reasons, this Court does have the power to dismiss a suf?ciently pled speci?cation
that is premised on a legally insuf?cient theory as to one essential element of the offense, and
this Court should accordingly exercise that power and dismiss Speci?cations 13 and 14 of
Charge II.

CONCLUSION

44. Notwithstanding its last minute shift in theory, the Government has still not alleged that PFC
Manning ?exceeded authorized access? within the proper meaning of Section 1030(a)(l). PFC
Manning had access to the relevant SIPRNET computers and was authorized to access every
piece of information that he allegedly accessed. The Government has not disputed this crucial
fact. Accordingly, because the Government has failed to allege that PFC Manning?s conduct
exceeded his authorized access under Section l030(a)(l the speci?cations alleging violations of
Section 1030(a)(1) must be dismissed.

13



. . 22505

45. For these reasons, the Defense requests this Court dismiss Speci?cations 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

ATTACHMENT A

22506

0 0 22507

From: Edwards. Antonio CIV (u
Sent: Monday. January 23, 2012 5:

To: King, Kenneth A CIV (US)

Subject: FW: Status? (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: FOUO

See Below for Gloor answers, I am attempting to acauire, and RedHat
Enterprise Linux, both of which have CONS (Attached)"

Antonio P. Edwards
SPECIAL AGENT
LNO to ARCYBER

ARCYBER
8825 Beulah Street
Port Belvoir VA 22660





washington Metro Resident Agency
CCIU, USACIDC

224



CONFIDENTIALITY NOTICE
The information contained in this e-mail and accompanying attachments may
contain confidential information which may be law enforcement sensitive. I4
you are not the intended recipient oF this in?ormation, any disclosure,
Copying, distribution, or the taking of any action regarding this
information is strictly prohibited. if you received this e?mail in error,
please notify me immediately by return e-mail or by calling (783) 766-2438.



From: Gloor, Thomas LTC USARMY (US)
Sent: Monday, January 23, 2612 5:33 PM
To: Edwards, Antonio CIV (US)

Cc: Morton, Stephen 3 CIV (US)
Subject: RE: Status? (UNCLASSIFIED)

Mr. Edwards,

Below are the answers to the questions you provided, I've also cc'd my
Deputy- Mr. Steve Morton.



0 22508

Hope this helps:

1. was "wget" authorized For use on the SIPR computers while MANNING was in
Iraq (Oct 89 to May 10).

PM DCGS-A: "wget" was authorized for use on the Server components of the
system, but not on the user system, the Basic Analyst Laptop (BAL). The
BAL, not the server components is the only system MANNING was authorized to
use.

2. Has "wget" ever been authorized?

PM DCGS-A: See "wget? was not authorized for use on the user's system,
the Basic Analyst Laptop.

3. If so, has "wget" ever had a

PM DCGS-A: "wget? as an individual package does not have a CON. "wget" was
deployed on the Server systems as a subcomponent of other applications
(CYGNIN and RedHat Enterprise Linux, both 0? which have CONs (Attached))

4. Regardless of authorization, or a COM, was "wget" installed prior to, or
at any time after delivery?

PM OCGS-A: ?wget" has never been authorized to be installed by PM DCGS-A on
I the user system (Basic Analyst Laptop).

5. Please provide a POC For the determination pertaining to installation,
which would have occurred after delivery?

PM POC For configuration management during the questioned time was Stephen
Morton, DCGS-A Intelligence Fusion,

Building 6066, Aberdeen Proving Ground, Maryland 21605, Voice: 443-861-2589,
DSN: 848-2580, PM DCGS-A has validated that
there were no user requests or technical

Bulletins to install ?wget? onto the BAL.

6. Please clarify if the attached document is in Fact the CON for the SIPR
Iraq systems during Oct 99 to May 10?

PM DCGS-A confirms that this the correct CON.

v/r
LTC Thomas B. Gloor
PM DCGS-A Intelligence Fusion

Building 6086

C4ISR Canpus

2nd Floor, Room

Aberdeen Proving Ground, Maryland 21065





. 22509





From: Edwards, Antonio CIV (US)
Sent: Monday, January 23, 2012 4:25 PM
To: Gloor, Thomas LTC USARMY (US)
Subject: Status? (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: FOUO

LTC Gloor,

I wanted to coordinate with you to determine whether you or your personnel
have revealed any new information pertaining to the questions below:

I realize that it is difficult to determine whether "wget" was authorized or
installed prior to delivery; however, with reference to your research, could
you please exhaust any possibility of ?wget" being installed prior to or
after delivery, or tested and authorized but not given a CON. If so,
please provide the details of the testing and authorization, and if a CON
was issued, the CON. Additionally, if you believe "wget" was installed after
delivery of the system, could you provide me any information you were able
to find pertaining to the subsequent installation of "wget?, and with a POC
who would be able to confirm the details pertaining to the installation?
Finally, I read over the attached document and I believe it is the CON for
the Iraq SIPR system during Oct 69 to May 16, please clarify if I am
incorrect?

In summary, I believe the following question remain:

1. was "wget" authorized for use on the SIPR computers while MANNING was in
Iraq (Oct 99 to May 19).

2. Has "wget? ever been authorized?
3. If so, has ?wget? ever had a

4. Regardless of authorization, or a COM, was "wget" installed prior to, or
at any time after delivery?

5. Please provide a POC for the determination pertaining to installation,
which would have occurred after delivery?

6. Please clarify if the attached document is in fact the CON for the SIPR
Iraq systems during Oct 09 to May 16?

Thank you.

Antonio P. Edwards

DJ

MannIngB_00411001



SPECIAL AGENI
LNO to ARCYBER

ARCYBER
8825 Beulah Street






Washington Metro Resident Agency
CCIU, USACIDC
27130 Tele ra Rd VA 22134

CONFIDENTIALITY NOTICE
The information contained in this e?mail and accompanying attachments may
contain confidential information which may be law enforcement sensitive. If
you are not the intended recipient of this information, any disclosure,
copying, distribution, or the taking of any action regarding this
information is strictly prohibited. If you received this e-mail in error,
please notify me immediately by return e-mail or by calling (763) 796-2438.

Classification: UNCLASSIFIED
Caveats: FOUO

Classification: UNCLASSIFIED
Caveats: FOUO

ManningB_OO411002

22510

IT .

. . 22511
in
i
1

ATTACHMENT

1 1 O922\MANNING_PersonaI_Computer
22512

Forensic Rcpon for PFC Personal Counputer



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Page 49 of 80

Exh?lit



Manning8_0O124331 Forensic Report MANNING Petsonat-22 Sep 11 .pdf

22513

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE REQUEST FOR
v. CLARIFICATION OF

COURT RULING ON

MOTION TO COMPEL
MANNING, Bradley E., PFC DISCOVERY #2
U-S- Army,
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 23 June 2012
Fort Myer, VA 22211

RELIEF SOUGHT

l. The Defense respectfully requests clari?cation/elaboration on para. 7 of p. 5 of the Court?s
Ruling: Defense Motion to Compel Discovery The paragraph reads:

For ?les pertaining to PFC Manning within the possession, custody, or control of military
authorities that the Government is aware of and has searched for Brady material, Trial
Counsel must turn over to the Defense any information that is obviously material to the
preparation of the defense.

FACTS
2. At oral argument, the Court and MAJ Fein had the following colloquy:

Court: So when you?re doing reviews then, are you looking at these reviews for
both 70l(a)(6) and 701(a)(2)?

MAJ Fein: [pause] Ma?am for DIA information, we have been reviewing it for
701(a)(2) as well in anticipation ifthe Court does rule in favor based offa speci?c
request from the Defense so we do not have to review the documents again.

Court: Okay, let?s go a little bit more broadly here. When you are reviewing
documents for 70l(a)(2), if the Government is alerted that this could be material
to the defense, the Government?s got an obligation to turn this over.

MAJ Fein: The Government?s the Government at least argues that it?s notjust
that the documents themselves are material, it would be certain information just
like the defense is arguing or proffered to the court in their response to the ex
parte motions of 505(g)(2). Here are the categories of information. The
prosecution makes the initial determination of material to the preparation of the
defense and the defense argues provides as they?ve done and then it?s like
?Okay, that?s what We?re on notice of.? We?re absolutely on notice that any type

APPELLATE
pm I orPa??(s) 8



. . 22514

of damage that resulted, for instance, is material to the preparation of the defense
based off of the year and a half of requests. So as each discovery request comes
in, we process it, we add it to our database of what we?re reviewing and we start
again, chuming the review of these documents. We maintain still based off
today?s litigation that those documents are still not 701(a)(2), subject to the
Court?s order, but because we do not have a speci?c request. It?s all documents at
DIA with some caveats. Not any type, not anything directed at a certain type of
information. I mean the Defense is in the best position to know exactly what was
and was not compromised from their client. They could be making speci?c
requests for what type of information they?re looking for. So it?s not that the
Defense is an odd position of not being aware of what could be out there and if, as
the Defense just stated on the record, as if the infonnation Review Task Force,
which it was, started to review all the possible compromised documents then they
should know what was compromised. We would know from reviewing the ?les
what?s there and they can make speci?c requests. But it goes back to, it?s a
generic request that?s copied and pasted from 701(a)(2) for pretty much every
type of document out there.

Court: What volume of infonnation are we talking about?

MAJ Fein: Your honor, we have probably keep going, about I?ll get you that
infonnation before we close the Court today.

MAJ Fein: If the Court?s willing to accept the Defense?s argument, that means
that any document that is in the possession, custody or control of military
authorities that they simply request and make no other showing, then they are
entitled to inspect. Your honor, especially dealing with classi?ed information, it
goes back to that this is a tactic in order to essentially slow this prosecution
down, slow this court martial down, on one hand arguing that, for instance, in the
upcoming Braajz motion we?ve given too much infonnation for them to identify
stuff and now they want everything, just because they?ve made a request. We?ve
maintained, the prosecution has maintained, from the very ?rst request, ?Provide
us with the us with an adequate basis and a speci?c factual
basis and we?ll be able to process it.? All documents from DIA and IRTF is not
suf?cient. Yes, we have prepared because we do want to move this case and we
do not want to have unneeded delay in order to do this. And I have to review
thousands of pages of documents again, but again, these are classi?ed documents
and the Defense notes that. And yet they still maintain a general requestjust
because they make the request that it must be material to the preparation of the
defense with no other showing.

Court: I understand that, MAJ Fein, but when the Government is reviewing these

documents, the Government has a burden, an obligation, under R.C.M. 701(a)(2)

to disclose material to the preparation of the defense. So if the Government while
observing, while looking through these documents, sees something that you think
is material to the preparation of the defense, and you?re not turning it over

2

because they didn?t ask for it, I?m going to order everything turned over to me for
in camera review.

MAJ Fein: Yes, ma?am.

Court: So is the Government going to look at this with an of the defense
counsel and

MAJ Fein: We absolutely will, ma?am. Ah - to turn over material based off of
just what the Defense gives us and what they consider material to the preparation
of the defense, we will review the documents for that. Cause then, that would
qualify as a speci?c request and we would do it.

Court: We?re having a circular argument here again. If you?re looking at
document and you say, as MAJ Fein, ?Boy, if I were a defense counsel, I would
?nd this material to the preparation of the defense? are you going to hold onto it
until they request it?

MAJ Fein: No, your honor, we?re not.
Court: Okay.

Mr. Coombs: If I didn?t understand him correctly, he?s free to correct me. But,
I believe he said, ?We have documentation that we?ve identi?ed that?s material to
the preparation of the defense and we?re prepared, if the court orders us to hand it
over, to hand it over. But until we receive a speci?c request, we?re not doing so.?
And if now, based upon the Court?s exchange with MAJ Fein, he now realizes,
?Okay, we now need to turn this over? then that?s a clari?cation that the Defense
would want to nail down. Does he have documents right now that are material to
the preparation of the defense that he?s been holding onto because he believed
that we needed to make a speci?c request for it?

Court: I?ll ask you that question then.

MAJ Fein: Yes, your honor. I?d ask that we can get back to the Court because
we?d have literally have to look at the computer system and we?ll be able to
answer the Court.

Audio from Article 39(a) session, 6 June 2012. The Government never did ?get back to the
Court? on two issues the Court asked about:

a) ?What volume of information are we talking about?? and;

b) ?Does [the Government] have documents right now that are material to the
preparation of the defense that [the Government] been holding onto because
[it] believed that [the Defense] needed to make a speci?c request. .

Id. In addition, the Government did not state whether it has a similar database where it kept
track of documents that are material to the preparation of the defense under R.C.M. 701(a)(2)
with respect to documents from Army Criminal Investigation Command Defense



22515



Information Systems Agency United States Central Command (CENTCOM) and United
States Southern Command (SOUTHCOM) and U.S. Cyber Command (CYBERCOM).

ARGUMENT

3. The dialogue between the Court and MAJ Fein at the previous motions argument reveals that
the Government is resisting producing information that is material to the preparation of the
defense at all costs. The Defense ?nds particularly troublesome the following exchange:

Court: I understand that MAJ Fein but when the Government is reviewing these
documents, the Government has a burden an obligation under R.C.M. 701(a)(2)
to disclose material to the preparation of the defense. So if the Government while
observing, while looking through these documents, sees something that you think
is material to the preparation of the defense, and you?re not turning it over
because they didn?t ask for it, I?m going to order everything turned over to me for
in camera review.

MAJ Fein: Yes, ma?am.

Court: So is the Government going to look at this with an ofthe defense
counsel

MAJ Fein: We absolutely will, ma?am. Ah - to turn over material based off of
just what the defense gives us and what they consider material to the preparation
of the defense, we will review the documents for that. Cause then, that would
qualify as a speci?c request and we would do it.

Id. The Defense would ask the Court to consider what would have happened if the Court simply
left the conversation at ?I?m going to order everything turned over to me for in camera review?,
to which MAJ Fein responded ?Yes, ma?am.? At this point, the Court would have assumed
(quite properly) that MAJ Fein understood the Court?s direction to provide any information that
is material to the preparation of the defense absent a speci?c request. It is only because the
Court fortuitously asked the follow?up question, ?So is the Government going to look at this with
an of the defense counsel that the Court learned that the Government had no
intention of actually complying with the Court?s order. Instead, the Government was simply
planning on maintaining its ?rmly-entrenched position that it would only review documents
when it received a ?speci?c request.?

4. In light of this conversation, the Defense believes that the Government will interpret the
Court?s order as narrowly and as disingenuously as possible. The Defense also believes, based
on previous discovery arguments the Government has made, that the Government will take an
untenable position on what information is ?material to the preparation of the Defense.? By way
of illustration, the Government believed that the FBI investigative ?le pertaining to PFC

I Manning was not material to the preparation of the defense or relevant and necessary. The Court

quizzically asked MAJ Fein something to the effect, ?How could an investigative ?le not be
material to the preparation of the defense?? Based on the Govemment?s extremely narrow and
incorrect reading of the discovery rules; its position on the FBI investigative ?le not being
material the preparation of the defense; its position in the 6 June 2012 motions argument; its

4

. . 22517

failure to get back to the Court on certain key issues; its failure to timely disclose to the Court the
existence of certain critical discovery in this case (namely, the ONCIX and FBI damage
assessments); and its repeated tendency to de?ne itself out of its discovery obligations, the
Defense requests that the Court provide the following additional guidance with respect to the
Govemment?s R.C.M. 70l(a)(2) obligations:

a) Speci?cally name the organizations that have ?les that fall under the R.C.M. 70l(a)(2)
standard. The Defense believes that this would include at least the following:

Headquarters Department of the Anny (HQDA)

Army Criminal Investigation Command (CID)

Defense Intelligence Agency (DIA)

Defense lnfonnation Systems Agency (DISA)

United States Central Command (CENTCOM) and United States Southern
Command (SOUTHCOM)

0 U.S. Cyber Command (CYBERCOM)

b) Clarify the Court?s statement that the Government must ?tum over to the Defense? ??les
pertaining to PFC Manning that the Government is aware of and has searched for Brady
material.? (emphasis added). The Defense believes this sentence can be read as suggesting that
the Government must only turn over only documents under R.C.M. 70l(a)(2) that it has already
searched that would qualify as ?material to the preparation of the defense.? The Defense thus
believes that that the Government may state that the Court?s order does not require the
Government to turn over infonnation that is material to the preparation of the defense for ?les
that it has not yet reviewed. In other words, the Defense believes that the Government may read
the Court?s order as applying only retroactively and not prospectively.

c) Clarify that for ?les within the possession, custody and control of military authorities that that
the Government has already reviewed (dating back to the beginning of the case), the Government
must, if it has not already done so, review those ?les under the R.C.M. 70l(a)(2) standard. In
other words, the Defense does not believe that the Government has, for the past two years, been
reviewing ?les within the possession, custody and control of military authorities under the
R.C.M. 70l(a)(2) standard. To the extent that it has not done so, the Defense requests that this
Court order the Government to go back and re-review such documents under the R.C.M.
70l(a)(2) standard. Any other order would reward the Government for its ?agrant disregard for
two years of the R.C.M. 70l(a)(2) standard.

The Defense does not believe that the Government has kept a log or database for the past two

A years of every document within its possession, custody or control that it has reviewed and that

would qualify as discoverable under R.C.M. 70l(a)(2) in the event that the Government would
have to produce these documents for discovery purposes. If the Government represents that it

A has kept such a log or database for the past two years, the Defense would ask that the Court order

immediate production of that log or database; the Defense would even agree that such a
document could be disclosed to the Court ex parte simply to demonstrate that the Government
has, in fact, been keeping track of all discovery in its possession, custody and control under the
R.C.M. 70l(a)(2) standard for the past two years.



d) Clarify that the Court?s order applies not only to ?les the Government has reviewed for Brady
purposes, but also to all ?les that the Government has reviewed for its own purposes its
case in chief; sentencing; In other words, if the Government has encountered any
document that is material to the preparation of the defense during its case preparation, broadly
construed, it must turn that document over.

e) Clarify what the ?material to the preparation of the defense? standard under R.C.M. 70l(a)(2)
entails. The Defense subm its that the Court should instruct the Government that the ?material to
the preparation of the defense? standard should be equated as anything that would be ?helpful? to
the Defense. ?Helpful? in this sense means anything that is relevant and would be helpful for the
Defense to know not evidence that is helpful, as in favorable, to the Defense. That is,
infonnation that is detrimental to the Defense could be, and usually would be, helpful for the
Defense to know. As argued previously, the case law reaffirms that ?material? under R.C.M.
70l(a)(2)(A) is not a difficult standard to satisfy. In 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 R.C.M.

In reviewing AE in camera, the militaryjudge 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 satis?ed.

See also United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004) (?The defense had a right to
this information because it was relevant to SA M?s credibility and was therefore material to the
preparation of the defense for purposes of the Government?s obligation to disclose under R.C.M.
added); United States v. Adens, 56 M.J. 724, 733 (A. Ct. Crim. App.
2002) (?We respectfully disagree with our sister court?s narrow interpretation that the tenn
?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 As noted above, R.C.M. 701 is
speci?cally intended to provide ?for broader discovery than is required in Federal practice
and unquestionably is intended to implement an independent statutory right to discovery under
Article 46, United States v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008) ?[U]pon request
of the defense, the trial counsel must permit the defense to inspect any documents within the
custody, or control of military authorities that are ?material to the preparation of the defense.?
R.C.M. 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

At oral argument, the Court stated, ?Ifyou?re looking at document and you say, as MAJ Fein, ?Boy, ifl was a
defense counsel, I would ?nd this material to the preparation ofthe defense? are you going to hold onto it until they
request it?? The Defense believes that the Court intended its ruling to apply to all documents with trial counsel?s
possession, custody and control that it reviewed and not simply that limited sub-set of documents that the
Government reviewed for Brad)?.

0 0 22519

5. The Defense would propose a clari?cation to the following effect:

Under R.C.M. 70l(a)(2), the Government has an obligation to turn over to the
Defense 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.?

Accordingly, for any documents2 that the Government has previously reviewed or
will review in the future, for any purpose, that is in the possession, custody or
control of military authorities, the Government must apply the R.C.M. 70l(a)(2)
standard. To clarify, if the Government has reviewed a document in its
possession, custody or control either for Brady purposes or for any other purpose,
the Government must also detennine whether the document satisfies the R.C.M.
70l(a)(2) standard. To the extent that the Government has not been reviewing
documents within its possession, custody and control under the R.C.M. 70l(a)(2)
standard, it must re-review the documents using the correct standard. To the
extent that the Government has been reviewing documents within its possession,
custody and control under the R.C.M. 70l(a)(2) standard, it must disclose those
documents to the Defense forthwith. The Court also orders the Government to
certify to what extent the Government has already been applying (or not applying)
the R.C.M. 70l(a)(2) standard in accordance with this order.

The documents that are subject to this portion of the Court?s order are those
possessed by: Army Criminal Investigation Command Defense
Intelligence Agency Defense Infomiation Systems Agency
United States Central Command (CENTCOM) and United States Southern
Command and any other agencies under military
authority that the Government has not disclosed to the Court but whose ?les the
Government has searched or has an obligation to search.

The Court also provides guidance to the Government on the R.C.M. 70l(a)(2)
standard. The word ?material? in the expression ?material to the preparation of
the Defense? should not be read as being synonymous with ?game-changing" or
?extremely important.? Rather, the Government is obligated to disclose anything
that is relevant and would be helpful for the Defense counsel to know as it
prepares its case. The Court instructs the Government to heed the words of the
Army Court ofCriminal Appeals in United States v. Cano, 2004 WL 5863050 at
*3 (A. Crim. Ct. App. 2004), ?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.? In addition, to be material to the
preparation of the defense, the documents do not need to be admissible at trial.

2 Documents should be read broadly to include ?books, papers, documents, photographs, tangible objects, buildings,
or places.? It should also be read to include any electronic material.

7



United States v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008) request of the
defense, the trial counsel must pennit 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
Further, the documents do not need to be favorable - even unfavorable documents
can be, and o?en are, material to the preparation of the Defense. If the
Government has any doubt as to whether the documents should be disclosed, it
should err on the side of caution and either disclose the documents or apply to the
Court for ex parte review of the documents.

6. The Defense is certain that the Government will object to any clari?cation by the Court,
claiming something to the effect that it ?absolutely understands? the Court?s order and will
comply with it. The Defense believes that the Court should not take the Govemment?s
representations that it understands both the letter and the spirit of the Court?s order at face
value. If the Government truly is planning on complying with the Court?s order, there should be
nothing objectionable about additional clari?cation in this matter. The Defense submits that the
Court should regard any objection by the Government to this clarification as evidence that the
Government had not planned on complying with the Court?s order.

RELIEF SOUGHT

7. For the reasons identi?ed herein, the Defense requests that this Court provide additional
direction on para. 7, p. 5 of the Court?s Ruling: Defense Motion to Compel Discovery

Respectfully submitted,
9
dig

DAVID EDWARD COOMBS
Civilian Defense Counsel

22521

UNITED STATES OF AMERICA
Prosecution Response
to Defense Motion for Modified Relief
for Defense Reply
to Prosecution Response to
Supplement to Defense Motion to
Compel Discovery #2

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

20 June 2012
RELIEF SOUGHT

The prosecution respectfully requests that the Court deny the Defense Motion for
Modified Relief for Defense Reply to Prosecution Response to Supplement to Defense Motion to
Compel Discovery #2 (Defense Motion). Rule for Court Martial (RCM) 701(a)(6) does not
support the defense's request to suspend the proceedings and require the prosecution to state the
steps it has taken to comply with its obligations as required by Brady v. Maryland, 373 U.S. 83
(1963) and 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, RCM 905(c) (2012).
FACTS
1. The prosecution disputes the facts as characterized in the Defense Motion with respect
to Defense's allegations of the Prosecution's failure to satisfy its discovery obligations.
2. On 25 April 2012, the Court found no discovery violation by the prosecution.
Appellate Exhibit LXVIIIH 13.
3. Referral of this case occurred on 3 February 2012. Appellate Exhibit LXVIII 1| 7.
4. The defense moved to compel the discovery it desires on 14 February 2012, 11 days
after referral. Appellate Exhibit LXVIII f 12. Thereafter, discovery has been the subject of
extensive and ongoing litigation. See Appellate Exhibit VIII; Appellate Exhibit XVI; Appellate
Exhibit XXVI; Appellate Exhibit XLVIII; Appellate Exhibit LIII; Appellate Exhibit XCIII;
Appellate Exhibit XCIV; Appellate Exhibit XCV; Appellate Exhibit XCVI; Appellate Exhibit
Appellate Exhibit XCVII; Appellate Exhibit XCVIII; Appellate Exhibit XCIX; Appellate Exhibit
C; Appellate Exhibit CI.

APPELLATE EXHIBIT
PAGE REFERENCED.
PAGE
OF
PAGES

22522

^ITNESSES^EVIDENCE
The prosecution does not request any witnesses be produced for this response. The
prosecution respectfullyrequests that the Court consider the referenced Appellate Exhibits and
their enclosures.
LEGALAUTHORITY AND ARGUMENT
The Court should not suspend the proceedings and order the prosecution to state the
steps it has taken to comply with its discovery obligations under ^^^^andRCM 701(a)(6)
because nothing in 701(a)(6) nor case law sets forth any such precedent.^ Even were there
precedent fior sucharequest, there is no basis fior the request because the prosecution continues
to comply with its discovery obligations and will continue to do so, or the prosecution has
litigated in good faith and will comply with all Court orders.
L

THE PROSECUTION SHOULD NOTBE REQUIRED TO STATETHE STEPS IT
HASTAI^ENT0C0MPLY^ITHITS08LIGATI0NSUNDER^^^^AND
RCM 701(A)(6)

A. The prosecution has and continues to comply with its obligations under .^^^^^ and
RCM 701(a)(6)
RCM 701(a)(6) requires that trial counsel,"as soon as practicable, disclose to the defense
the existence of evidence known to the trial counsel which reasonablytends to: (A)[n]egatethe
guilt ofthe accused of an offense charged; (B)[r]educe the degreeof guilt ofthe accused of an
of^nse charged; or(C)[r]educe the punishment." RCM 701(a)(6) is the military's ^ ^ ^ ^ rule.
^^^^^^^^^^^^.^v^^^^^^^^.^,50M.J 436,441 ( C A A F 1999) Due process requires the
prosecution to disclose evidence favorable to the accused, but only when the evidence is
"material" to guilt or punishment, ^^^^^,373 U.S.at 87,or may be used to impeach the
credibility of prosecution witnesses, ^^^^^^^^^v.^^^^^^^^^^^^.^,405 U.S.150, 154(1972);.^^^
^^^^^^^^^^^^^^.^^^^^.^v..B^^^.^,52M.J.60,66(C.A.A.F.1999). The prosecution must exercise
due diligence in searching its own files, the files oflaw enforcement authorities that have
participated in the investigation o f t h e subject matter o f t h e charged offenses, investigative files
inarelated case maintained by an entity "closely aligned with the prosecution,"and other files,

as designated inadefense discovery request, that involveaspecific type ofinformation withina
specified entity. ^^.at44.
However, the defense does not possess an unlimited right to discovery.^ Relevant rules,
statutes, case law,and due process define the prosecution'sdiscovery obligations. .^^^^^^^^^^

^ Acccirdingly,the defense cites no case law nor statutory authority for the proposition that the prosecution ^hc^ul^
state the steps it has taken in complying with its ^ ^ ^ ^ obligations under l^C^7^1(a)(^). I^owever, the prosecution
does not dispute that the Court possesses the authority to order such an accounting: rather, the prosecution notes that
such an order is without precedent in both the military and federal systems.
^ This Court has also held that there are limits by deciding that neither l^C1^701(a)(^)nor,^^^^ requires the
government to identify or separate what material it discloses in discovery as ^ ^ ^ ^ material. AppellateExhibit

22523

States V. Agurs, 427 U.S. 97,106 (1976) ("[Tjhere is, of course, no duty to provide defense
counsel with unlimited discovery of everything known by the prosecutor"). For instance, "[a]
criminal defendant is not entitled to know everything that a Govemment investigation particularly one this far-reaching - has unearthed when such information is not used against him
at trial." United States v. Arroyo-Angulo, 580 F.2d 1137, 1144 (2d Cir. 1978). Moreover,
defense may not make the circular argument that discovery is necessary to determine whether
discovery is warranted. See United States v. Leung, 40 F.3d 577, 583 (2d Cir. 1994) citing
Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987) ("[Cjriminal defendants have no
constitutional right to know the contents of Govemment files in order to present arguments in
favor of disclosure."). Finally, although the RCM and military case law encourage open
discovery, the defense does not have a right to discovery prior to referral under RCM 701 or
Brady? Appellate Exhibit LXVIII ^ 7.
Here, the prosecution has endeavored to disclose all evidence and discoverable
information within the prosecution's files. Moreover, the prosecution continues to endeavor to
disclose all evidence and information within thosefilesthe prosecution must search as soon as
possible after receipt of appropriate approvals for classified information, if applicable, to avoid
further delay. The Defense Motion states that "[t]he Govemment should not be able to
circumvent its discovery obligations for two years...." As the prosecution has repeatedly
emphasized, the process is time consuming given the nature of the misconduct. The volume and
classification of the compromised information necessitates classification reviews and approvals
from numerous entities. The prosecution has not circumvented any discovery obligation; rather,
the prosecution continues to comply with its legal and ethical requirements relating to discovery.
See Appellate Exhibit LXVIII
6, 8; U.S. Dep't of Army, Pam. 27-26, Rules of Professional
Conduct for Lawyers para 3.4(d) (1 May 1992). Additionally, the United States has disclosed
more broadly than the mies of discovery require. For example, the prosecution disclosed FBI
information regarding the accused's travel and bank records that was not required to be produced
under RCM 701 (a)(6) nor Brady. Brady materials have been and will continue to be provided to
the defense, which exceeds the requirement of disclosing the mere existence of the materials or
making them available for inspection. See United States v. Serfling, 504 F.3d 672, 678 (7th Cir.
2007) (holding that advising the defense of the availability of a large set of documents satisfies
Brady). This timely provision of materials satisfies the United States' obligations under RCM
701(a)(6) and Brady. Despite the volume of information the prosecution has searched, the
prosecution further notes that its search thus far has yielded little favorable and material
information.'*

CXXXIH 6 citing US. v. Warshak; 631 F.3d 266, 296-97 (6th Cir. 2010) (declining to order the Govemment to
organize and index discovery when not required by Federal Rule of Criminal Procedure 16).
' Additionally, the prosecution does not have authority to compel production of evidence from other govenmient
agencies under RCM 703(f)(4)(A) or contest discovery issues before a military judge until after referral. Appellate
Exhibit LXVIII H 8.
4

The lack of exculpatory or mitigating information does not reflect upon the prosecution's due diligence; rather, it
reflects the accused's culpability and the impact ofhis charged conduct.

3

22524

B. The defense request is boundless where the prosecution continues to comply with
its ^^^^t^ obligations and the trial on the merits has yet to commence.
Absent misconduct,a^^^^ violation does not occur until the completion oftrial.^ .^^^
Bf^^^.^,427U.Satl03(stating that ^ ^ ^ ^ applies in three situations, each involving discovery of
information ^^^^^^^^known to the prosecution but unknown to the defense)(emphasis added);
^^'^^^^^^^^^v.^^^^^^, 59 M.J.330,334(C.A.A.F.2004)(notingthatreliefis given onlyif
there ^^^^^^^v^^^^^adifferent result at trial)(emphasis added); .^^^^^.^^^^^^^.^^..^^^^,486
F.3d1010,1015(7th Cir. 2007)(stating that evidence is suppressed if the prosecution fails to
disclose it befOre it is too late for the defendant to make use ofthe evidence and the evidence
was not otherwise available to the accused through the exercise ofreasonable diligence); .^^^
^^^^^^^^^^^^^^^^^.^,50 M.J. at 441.
Here, the Court has fOund neither prosecutorial misconduct noradiscovery or ^ ^ ^ ^
violation. Appellate Exhibit LXVIII ^^6, 8. Moreover, the Defense Motion prematurely claims
that the discovery process has already prejudiced the accused because "there is no way the
Defense can adequately prepare its case" given the amount oftime between the completion of
discovery and the beginning oftriaL .^^^ Defense Motion^29. In particular, the defense has
outlined that it contemplatesaperiod of at least sixty days after discovery to prepare for triaL
Appellate Exhibit ll(setting voir dire more than 60 days after proposed completion of
discovery). Since defense'sdrafting of the Defense Motion, the trial date has been rescheduled
no earlier than November 2012and potentially inJanuary 2013.
Court Statement on the
Record,8June 2012 Article 39a. Accordingly,the new trial date should assuage defense
concerns about its trial preparation.
Still,the defense raises anew complaints ofthe timing ofreceiving discovery without
regard to the motions it has submitted to the Court.^
Appellate Exhibit XXXI,
Appellate Exhibit XLVIII, Appellate ExhibitLVII, Appellate Exhibit LXII;^Appellate Exhibit
LXVIII ("[A]bsent the unanticipated filing of additional motions...[Ijitigation of disputed
discovery is taking place well befOre trial."). Specifically,the defense repeatedly has made the
unorthodox claim that federal agencies, including the Department ofJustice and Department of
State, among others, are military authorities underRCM 701(a)(2).
Appellate ExhibitXCVI
^ Misconduct, including gamesmanship, constitutesa^^^^ violation no matter the timing. The prosecution has
conducted discovery in good faith and will continue to do so.
^ ^oth the defense, I^efenseMotion^30([T^hisisacomplicated case involvingagreat deal ofinformation"), and
the prosecution,
Appellate f^xhibitXYl at l^Appellate Exhibit XLtXat3:AppellateExhibitXCIVat3,
ha^e noted the complexity ofdiscovery in this case, especially gi^en the large amount of classified information.
Accordingly,the prosecution has envisioned discovery continuing until3August 2012. .^^^ Appellate Exhibit XLY.
The numerous and unanticipated defense motions have affected the trial date. C^^^^^^ Appellate ExhibitI
(contemplating motions,
for speedy trial; member instmctions; unlawfi^lconunand influence; improper
referral; dismissal of charges; jurisdictional defects; constitutional challenges to l.^CMJ,MREs,andRCMs; MRE
404(b)disclosures, MRE 304 disclosures)^^^^ Appellate Exhibit XLY(contemplating most of the aforementioned
motions and,
motions ^^^^^^^^; motions to suppress; pre-admission and authentication ofevidence;
motion to dismiss Articlel04 offense; motion to dismiss specification of charge 11; unreasonable multiplication of
charges motion; renewal for bill of particulars; motion to dismiss all charged offenses under 18Ll.^.C.^ 793(e);
motion to dismiss all charged oflenses under 18Ll.^.C.^ 1030(a)(l); motion f^rproposed lesser included offenses;
motion to compel discovery ^2; and requests for judicial notice).

22525

^9-17. In response to such novel arguments, the prosecution has litigated the scope of
discovery in good faith and in accordance with legal precedent. ^^^^^^^.^,427U.S.atl06
(stating thataprosecutor may respond t o a ^ ^ ^ ^ request by submitting the problem to the trial
judge).
Citing the prosecution'slegal arguments twenty-five times, the Defense improperly
equates discovery litigation with an alleged discovery violation.
Defense Motion ^^5-6, 810, 12, 1516,1819,2123;^^^^^^^ ^^^^^^v^^^^^^^^^,49CMR 770, 772 (ACM^R^
1974) (noting importance ofobjecting to maintain the adversarial system). However, despite the
numerous citations to prosecution responses, the defense does not explain howastatement ofthe
prosecution'ssteps in complying with its obligations under ^^^^andRCM 701(a)(6) would
alleviate the allegations conjured by the defense. Indeed, the defense attempts to make
prosecution^^^^^^^^^^^^^^^^^^^^^^^thebasisofitsmotionrequestingunprecedentedre^^^^
without explaining how the reliefwill cure the hypothetical prejudice that has not occurred.
Lacking legal justification, the defense motion should be denied.
^L

1NTHEALTERNATIVE,THEPR0SECUTI0N REQUESTS THATTHE
STATEMENTBEFILED^^B^^T^

Assuming,
the Court orders the prosecution to submit the statement ofthe
prosecution'ssteps to comply with its obligations under ^^^^andRCM 701(a)(6), the
prosecution respectfullyrequests the statement be filed ^.:r^^^^^. Any statement ofsteps taken in
compliance with discovery obligations necessarilyreveals insights into the Goverttment's
preparation fOr litigation, including motions practice, the trial on the merits, its intended
sentencing case, and sensitive matters which the goverrtment does not intend to use fOr
sentencing, and is therefore work product and not discoverable. Moreover, prosecution work
product will contain classified information fOr which the Defense does not have approval to
review; any disclosure would necessitate going through the approval process. Additionally,the
accounting could serve asaspringboardfOr further exploratory discovery requests and litigation.
^^^.^^^^^,40F.3dat583. Accordingly,the prosecution requests the filing be made ^.:i^^^^^^.
Ifthe Court requires the prosecution to submit the statement in any fOrm, the prosecution
al^o respectfullyrequests thirty days to create the statement because the prosecution'songoing
discovery efforts cannot simply be suspended; the prosecution must continually track and

organize the voluminous discovery with over sixty govemment agencies. The prosecution also
submits that the delay should be attributable to the defense fOr speedy trial purposes because the
defense made the request fOr relief without precedent.

^ The defense request for relief consists of two components: l)astatement ofthe steps the prosecution has taken to
comply with its ^ ^ ^ ^ obligations under RCM 701(a)(6), and2)asuspension of the proceedings to allow for the
completion ofthe f^rst component. The statement requested in the Defense Motion would not cure the issues it
alleges, ^ithoutajustification for the statement, the need for the suspension of proceedings is moot. Ifthe defense
desiresadelay.it should submitamotion rather than requesting the Court suspend the proceedings under the guise
ofthe Defense Motion.

22526

CONCLUSION
For the fOregoing reasons, the prosecution respectfitlly requests that the Court deny
Defense Motion fOr Modified RelieffOr Defense Replyto Prosecution Response to Supplement
to Defense Motion to Compel Discovery ^2.

^

^

^

ALEXANDERSYC^^ELTEN
CPT,JA
AssistantTrial Counsel

ASHDENFEIN
MAJ,JA
Trial Counsel

Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David
Coombs, Civilian Defense Counsel via electrortic mail, on 20 June 2012.

ASHDEN FEI
MAJ,JA
Trial Counsel



IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES



DEFENSE RESPONSE
TO GOVERNMENT
v. DUE DILIGENCE
SUBMISSION
MANNING, Bradley E., PFC DATED 20 JUNE 2012
U.S. Anny,
Headquane aners Company, U.S.
Army Garrison, Joint Base Myer~Henderson Hall, 22 June 2012


Fort Myer, VA 222] I

RELIEF SOUGHT
l. The Defense moves for the Court to order the Government to provide a due diligence
accounting of the steps it has taken to comply with its Brady obligations.
BURDEN OF PROOF
2. As the moving party, the Defense has the burden of persuasion. R.C.M. The
burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(l


3. The Defense requests that this Court consider the following evidence: Attachment - SGT
Bradley email on 27 February 20l2.

4. The Defense has also requested the following witnesses:

a) A witness from the Office of the National Counterintelligence Executive (ONCIX) who
can testify to:

i) the representation made to trial counsel in February 2012;
ii) the representation made to trial counsel in March 2012;
what ONCIX had by way of a damage assessment in February and March 2012;
and
iv) the contents of the 18 May meeting with ODNI.

APPELLATE 3)






b) A witness from the Federal Bureau of Investigation (FBI) who can testify as to when the
FBI had something by way of a damage assessment/impact statement, and when trial counsel had
knowledge of this fact.

c) A witness from the Department of Homeland Security (DHS) who can testify as to when
the DHS had something by way of a damage assessment, and when trial counsel had knowledge
of this fact.

The Court has denied this request as being untimely. The Court has also ruled that these
witnesses are not relevant and necessary for the Court to rule on the Due Diligence Motion.

FACTS

5. The Defense incorporates the factual assertions from Appellate Exhibit XCVI (Defense
Motion to Compel Discovery Appellate Exhibit (Defense Reply to Government
Response to Motion to Compel Discovery Appellate Exhibit XCIX (Supplement to Defense
Motion to Compel Discovery Appellate Exhibit Cl (Defense Reply to Prosecution
Response to Supplement to Defense Motion to Compel Discovery Defense Motion for
Modi?ed Relief); Appellate Exhibit CXX (Defense Response to Prosecution Notice to Court of
ONCIX Damage Assessment); and the Defense?s ?lings of 8 June 2012 and 21 June 2012
requesting witnesses for the purpose of this motion. The Defense also requests the Court to
consider the ?ling by the Government on 20 June 2012 (Prosecution Response to Defense
Motion for Modi?ed Relief for Defense Reply to Prosecution Response to Supplement to
Defense Motion to Compel Discovery

ARGUMENT

6. The Government latest Response reveals its new strategy if you can?t respond to the issues
at hand, change the topic. The Defense has chronicled, in painstaking detail, the serious
questions that exist about all the outstanding discovery (particularly Brady discovery) in this
case. See Appellate Exhibit XCVI (Defense Motion to Compel Discovery Appellate Exhibit
(Defense Reply to Government Response to Motion to Compel Discovery Appellate
Exhibit XCIX (Supplement to Defense Motion to Compel Discovery Appellate Exhibit Cl
(Defense Reply to Prosecution Response to Supplement to Defense Motion to Compel Discovery
Defense Motion for Modi?ed Relief); Appellate Exhibit CXX (Defense Response to
Prosecution Notice to Court Damage Assessment); Defense?s ?lings of 18 June 2012
and 21 June 2012 requesting witnesses for the purpose ofthis motion

7. Among the issues raised:

a) Why didn?t the Government tell the Court about the ONCIX damage
assessment?

b) Why did the Government represent that it had searched the ?les of 63
agencies prior to February 2012 and found no Brady, but now is saying that it



did not begin its Brady search until February 2012 after ONCIX informed the
Government that it needed to go to these agencies?

c) When did the Government learn of the FBI impact statement? (not when did
the Government get approval to tell the Defense about the impact statement?).
When did the FBI begin the impact statement? When did it complete the
impact statement?

d) When did the Government learn of the Department of Homeland Security
damage assessment? Why didn?t the Government tell the Court about this at
the 6 June 20l2 motions argument, given that the parties and the Court were
in the process of discussing what damage assessments existed?

e) Why didn?t the Government ever follow-up with Why did it take
someone at HQDA, nine months after the original memo was circulated, to
realize that nobody had conducted a Brady search?

f) Why hadn?t the Government already searched the ?les of the Department of
State? How can it be that two years into the case, the only document from the
Department of State that the Government has seen is their damage
assessment?

g) Why has the Government not completed a Braafv search of documents that it
agrees are under military possession, custody and control?

b) Why has the Government not yet completed a Brady search of closely aligned
agencies?

8. After the Defense ?led Appellate Exhibit CXX (Defense Response to Prosecution Notice to
Court of ONCIX Damage Assessment) and Appellate ?Exhibit CI (Defense Reply to Prosecution
Response to Supplement to Defense Motion to Compel Discovery Defense Motion for
Modi?ed Relief), the Government stated that it needed an additional two weeks to respond to
matters raised therein. On 20 June, 2012, the Government ?led its response. Shockingly, the
Government has not responded to a single issue raised by the Defense. The Government does
not mention the ONCIX damage assessment, the FBI impact statement, the DHS damage
assessment, the HQDA memo or anything factual about this case. Instead, the Government
essentially asks the Court to, ?trust us, we know what we are doing.?

9. The whole point of allowing the Government two weeks to respond was to provide answers to
the factual issues raised by the Defense, not to allow the Government to rehash its arguments that
there is no basis for ordering a due diligence statement. The Government already made those
exact same arguments on 24 May 20I2. See Appellate Exhibit XCVII (Prosecution Response to
Defense Motion to Compel Discovery (?The prosecution respectfully requests that the Court
deny the defense?s request for the prosecution to respond to inquiries related to its due diligence
search for discoverable information. There is no legal authority to support the defense?s request.
Should the Court be inclined to [grant the Defense?s motion], the prosecution requests leave of
the Court to require the prosecution to prepare internal memoranda and other attorney work-
product, and present this information to the Court ex parte based on it being attorney work-
product?).

10. The purpose of deferring argument for two weeks was to enable the Government an
opportunity to explain to the Court inconsistencies in the factual issues raised by Defense?s



motion. That is the basis upon which the Court granted a two-week extension. If the
Government was going to use the two-week extension to simply regurgitate old arguments and
repeat that ?the prosecution continues to comply with its discovery obligations and will continue
to do so? and ?the prosecution has and continues to comply with its obligations under Brady?
(See Government Response at p. 2), there was absolutely no need for this two-week extension.

I I. To recap, the Government revealed for the first time a couple of weeks ago that the FBI had
prepared a damage assessmentl impact statement. In Appellate Exhibit CI (Defense Reply to
Prosecution Response to Supplement to Defense Motion to Compel Discovery Defense
Motion for Modified Relief), the Defense argued:

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
closely aligned. The Defense has repeatedly asked for documents from the
moreover, the Government has a duty to turn over Braajz 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
request?).

On 20 January 2012, 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 oflnvestigation (FBI) or
any other governmental agency 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.? 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

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. In other
words, the FBI 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



confinn or reveal their existence. Further, the Government states that it intends to
produce any Brady material ?as soon as possible; however, the current case
calendar outlines MRJ3 505 proceedings to take place a future date.? Government
Response to Supplement, p. 4. The subtext ofthis statement is that it will be
months before the Defense gets access to the impact statement.

Id. p. 10-11.

12. At oral argument, the Court asked MAJ Fein when the Government learned about the FBI
impact statement.

COURT: Alright, we will be addressing that aspect of this motion at the next
session. I understand the Defense?s argument. Government, are you prepared to
tell me when you did know about this impact statement or impact assessment?

MAJ Fein: Your Honor, the Government would like to at least have a chance to
argue the due diligence argument first and then answer that in (inaudible) Court?s
order.

Article 39(a) Audio Recording 6 June 2012. MAJ Fein seemed to indicate that he would
provide an answer to the Court?s very straightforward question as part of the Government?s due
diligence submission, for which he had requested a two-week extension. MAJ Fein did not
address the FBI impact statement at all in the Government?s 20 June 2012 submission.

13. The Defense believes that the Government has known about this impact statement for a long
time. It bases this belief on the fact that on 22 March 2012, the Government stated in its
disclosure to the Court, ?the United States is concurrently working with other Federal
Organizations which we have a good faith basis to believe may possess damage assessments or
impact See Prosecution?s Response to Court?s Email Questions (22 March 2012).
The Defense believes that the ?impact statement? the Government was referring to on 22 March
2012 was the FBI impact statement (because all other documentation which assessed hann had
been previously referred to as ?damage assessments?). The Defense also believes that the
Government was referring to the FBI impact statement on 20 April 2012 when it represented that
?the United States anticipates that the FBI is the only government entity that is a custodian of
classified forensic results or investigative ?les relevant to this case that will seek limited
disclosure IAW MRE Appellate Exhibit LVI. The Defense believes that the limited
disclosure which the Government anticipated the FBI seeking was in respect of the impact
statement (not forensic results or investigative files).?

14. Moreover, the Government has still not explained other problematic issues in this case. For
instance, the Defense raised the HQDA memo (which showed that the Government forgot about

1 It is worth noting that the Government would use the terminology of?forensic results? or ?investigative ?les? to
refer to the impact statement. This underscores how the Government chooses to argue that certain terms are ?terms
of art" only when it suits the Government?s purposes. The Government similarly used ?damage assessment? to refer
to documents that it previously had stressed must be referred to as ?working papers.? See Appellate Exhibit CI,
para. 14.

22532

its Brady search within the Department of the Army) as an illustration of the lack of due
diligence on the part of the Government. The Defense argued that if the Government cannot be
trusted to conduct a Brady search in its own backyard, it cannot be trusted to conduct a Braafv
search of numerous federal entities. The Government has not once responded to the Defense?s
argument other than to say that responses to the HQDA memo should not be discoverable. It
has not provided any explanation as to why it did not follow?up with HQDA for none months on
the Brady search.

15. The Government has also not provided any written account of why it did not notify the
Court that ONCIX was conducting a damage assessment. All the Court has to go on is the
Government oral representations at the 6 June 2012 39(a) session that the Government simply
repeated what it was told by ONCIX. For reasons discussed in more detail below, the
Government?s account simply does not ring true.

16. Similarly, the Government has not explained why it has not yet searched any non-
investigative records at the Department of State, even though this case has been ongoing for over
two years. By its own admission, the only document from the Department of State prior to 6
June 20 I2 was the Department of State damage assessment, which it reviewed only a couple of
days before disclosing it to the Court. The Government has not answered much less,
satisfactorily answered why it has not reviewed any non-investigative Department of State files
(or even made inquiries) in the two years since PFC Manning was incarcerated. PFC Manning is
charged with releasing hundreds of thousands of Department of State cables. One would think
that a diligent prosecutor would, sometime in a two-year time period, think to review documents
??om the Department of State for Brady.

I7. Equally, the Government has not explained why it is still ?in the process? of conducting a
Brady search of almost every agency involved in this case. As the Court went through each and
every agency involved in this case, the Government?s refrain was some variation of ?we are in
the process of conducting a Brady search.? See Article 39(a) Audio Recording 6 June 2012.
How can it be that two years into the case the Government is still ?in the process? of conducting
a Brady search?

18. In short, the Government has not answered any factual questions about its Brady search that
would allay any ofthe Defense?s or Court?s concerns about the diligence ofthe Government. If
anything, the more the Government says, the more the Defense is concerned that the Government
is dropping the ball with respect to its Brady obligations. Fundamentally, there is one
overarching fact that simply cannot be ignored: more than 24 months since PFC Manning was
arrested, the Government has still not even begun searching some critical ?les. This fact alone
without knowing anything else should give a Court great pause about the Government?s
diligence.

19. The Government maintains that it should not have to provide any factual detail, unless
ordered to do so by the Court. In opposing the Defense?s request for witnesses, the Government
states:

0

The United States objects to the Court?s reconsideration of its ruling that the
witnesses are not relevant and necessary and that the defense?s request was
untimely. On 2 June 2012, the defense motioned the Court to require the
government to provide a diligence statement and, at the motions hearing on 6 June
2012, the government requested time to respond to whether the government
should be required to provide a due diligence statement to the Court.

urthennore, after being asked by the Court to provide speci?c dates on when the
government received certain infonnation, the government requested to defer
answering the Court?s questions about timing, until the due diligence statement
motion was completely litigated?

On 20 June 2012, the government filed its response to the due diligence motion
arguing that the Court should not order the government to provide a response,
thus potentially making this issue moot, or in the alternative the government ?le a
response ex parte. The government recognizes, that if after consideration of both
parties argument (for which the defense has already argued), the Court orders the
government to produce a statement, then the government will comply with the
Court?s order.

Prosecution Response to Defense Motion to Request Reconsideration of Addendum #2 to
Defense Motion to Compel Discovery Request for Witnesses, p. 2. At bottom, what the
Government is saying is that it simply will not answer any questions unless the Court orders it
to.3 The dates on which MAJ Fein made certain inquiries is not a national secret; it should not
require an order from a militaryjudge for MAJ Fein to disclose to the Court when he learned of
the existence of, for instance, the FBI impact statement.

20. In light of the refusal of the Government to answer any factual questions in this case absent a
Court order, the Court should take the Defense?s factual statements as uncontroverted and order
the relief sought by the Defense.

I. The Government?s Account of Events Surrounding the ONCIX Damage Assessment
Does Not Make Sense

2 l. The Government?s version of events concerning the ONCIX damage assessment brings to
mind the famous line: ?Oh what a tangled web we weave, when first we practise to deceive!?4
The Government here indeed has woven a tangled web, and it is only by parsing carefully
through that web that the Government?s story completely falls apart.

2 The Government is incorrect with respect to the dates of requested relief. The Defense requested a due diligence
statement as part of its 10 May 2012 Motion to Compel Discovery #2 (see, para. Consequently, the
Government has had 40 days to respond to this aspect of the Motion to Compel Discovery In that time, the
Government has not provided any factual justification for any issues raised by the Defense (with the exception of
ONCIX, addressed herein).

3 The Government?s position is, unsurprisingly, nonsensical. Answering the questions that the Defense and the
Court raised would assist the Court in determining whether the requested relief is appropriate.

4 Sir Walter Scott, Marmion. Canto v. Stanza Scottish author and novelist (I771 1832); available at:


0 0

a) The Government?s Phraseologv Was Deliberatelv Designed to Mislead the Court

22. In the 15 March 2012 motions argument, the Government represented that the DOS had not
?completed? a damage assessment and that ONCIX had not ?completed? a damage assessment.
In other words, the Government?s representation with respect to DOS and ONCIX was identical.
The Defense challenged this, at least with respect to DOS, noting that it was clear that the DOS
was working on something, even though it was not completed. The Government refused to
answer the Court?s questions on the DOS damage assessment, saying that it was only authorized
to state that the DOS had not completed a damage assessment.

23. After the motions argument, on 21 March 2012, the Court asked the Government to respond
to questions regarding whether certain agencies had damage assessments. The Government?s
responses with respect to DOS and ONCIX were as follows:

a) DOS has not completed a damage assessment.?
b) ONCIX has not produced any interim or final damage assessment in this
matter.?

See Prosecution?s Response to Court's Email Questions dated 21 March 2012. In other words,
the response with respect to ONCIX changed from its previous statement in the oral argument.

24. The Court and the Defense knew, based on previous oral argument and public statements,
that the Government?s statement regarding DOS meant that the DOS had something a dra?)
even though there was not a ?completed? damage assessment. With respect to ONCIX, the
Government?s phraseology that ONCIX had neither a completed nor interim damage assessment
was designed to deceive the Court and the Defense into believing that nothing existed in the
hands of ONCIX.

25. If it is true that ONCIX did not have a draft damage assessment, there were many ways to
phrase this. For instance, the Government could have said, has an ongoing damage
assessment; however, they have represented to us that they do not have an interim or a final
report at this time.? The Government?s representation to the Court on 2] March 2012 made it
seem to a reasonable person that: a) ONCIX did not have a damage assessment, period; and b)
the Government personally veri?ed that ONCIX did not have anything. Neither one of these was
true.

26. Moreover, the Government had numerous occasions to correct the misimpression it had
created. In particular, after the Defense began receiving Brady materials from various agencies
that were addressed to ONCIX, the Defense knew something was amiss. lt broached this issue
with the Government and the Court. See Attachment to Appellate Exhibit CXX. The
Government, rather than coming clean and admitting that ONCIX had a damage assessment
(albeit in some sort of draft form), continued its practice of obscuring the truth. This was when
the Government conveniently and out of whole cloth fabricated definitions of ?damage
assessments? and ?investigations.? See Appellate Exhibit LXXII. It continued to maintain that
ONCIX did not have a damage assessment (even though the Court had already concluded that

0 0 22535

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.? See Prosecution Brief Discussing Investigations and
Damage Assessments.

b) The Govemment?s Timeline For Its Initial Inquiries of ONCIX Does Not Make Sense

27. When one superimposes the Govemment?s version of events upon the aforementioned, its
story becomes even more suspicious. At the 6 June 2012 motions argument, the Court asked
MAJ Fein a very straightforward question, which garnered a very evasive answer:

COURT: Why did you tell me back on the 215? of March that NCIX or ONCIX
had no damage assessment? Those were not the exact words you used but go
ahead and tell me-

MAJ Fein: Correct your Honor. Your Honor, frankly. Because we do not have
access. Or even knowledge, absent us asking a question and receiving it to these
?les because of the nature of this type of assessment. We ask the questions based
off of the Defense?s discovery requests.

Article 39(a) Audio Recording 6 June 2012.

28. MAJ Fein implies that he did not have any ?knowledge? of the damage assessment; he later
admits that he knew the whole time that ONCIX was working on a damage assessment. So, if he
knew that ONCIX was working on a damage assessment, why did he not tell the Court on 21
March? It was clear what the Court was asking at the time did ONCIX have some type of
damage assessment, whether in draft or ?nal fonn? The Government deliberately mislead the
Court in not supplying a full answer to the Court?s question.

29. MAJ Fein then proceeds to lay out a timeline:

Speci?cally your Honor, if it may please the Court to kind of lay out a time line.
This is, this is somewhat re?ected in the Defense?s motion from Saturday. But,
16 February 2012 was the Defense?s motion to compel discovery, their ?rst
motion. On 28 February 2012 was the ?rst 802 conference. After the 16
February 2012 motion to compel, we approached at some point, I don 't have that
date, NCIX through ODNI and said ?we are required to produce the following,
here is an example of what it is. What do you have?? And then their response of
course given was the department of, ONCIX has not completed a damage
assessment to date they have not produced any interim or ?nal damage
assessment in this matter. That is what they gave us and told us.

Id. (emphases supplied).

30. There are several problems with this statement. First, MAJ Fein indicates that sometime
between 16 February 2012 and 28 February 2012, he approached ONCIX and said ?we are

0 22536

required to produce the following, here is an example of what it is. What do you have?" At this
point, though, the Government was not required to ?produce? anything. In fact, the
Govemment?s position was that the damage assessments were not relevant and necessary under
R.C.M. 703. So it is unclear whether this conversation ever even took place at least in the way
that MAJ Fein relates.

31. MAJ Fein continues:

MAJ Fein: And then their response of course given was the department of,
ONCIX has not completed a damage assessment to date they have not produced
any interim or ?nal damage assessment in this matter. That is what they gave us
and told us.

COURT: Did they do that orally or in writing?

MAJ Fein: Orally your Honor. And so, by us writing that down, and inquiring is
this all you have, is this what it is? And this is the response we received. That is
ultimately what we fast forward, at the motions hearing, on the record, both at
the 802 conference after the motions hearing.

Id.

32. Apparently, the Government is saying that someone from ONCIX orally (presumably by
phone) noti?ed the Government that has not produced any interim or ?nal damage
assessments in this matter? and that the Government wrote it down and represented that to the
Court verbatim in the February motions argument. Unfortunately for the Government, that is not
what the Government said at the oral argument. Instead, it stated that ONCIX has not
?completed? a damage assessment. Article 39(a) Audio Recording 15 March 2012. So even
under its own version of events, the Government is not accurately relaying what ONCIX
apparently told them. This is probably because these conversations did not happen or at least
did not happen in the way that the Government suggests.

33. The Government then states that, after the Court sent the email questions on 21 March 2012,
it reached out to ONCIX again on this issue prior to responding on 22 March 2012:

MAJ Fein: Yes, your Honor. And the prosecution did exactly that, your Honor.
Even after the email from the Court, the prosecution reached out to ODNI and
NCIX to ask the question again and this was the response we received.

Id.

34. So, apparently after reaching out to ONCIX a second time, ONCIX represented again that
has not produced any interim or ?nal damage assessments in this matter? and this time,
the Government relayed that fact to the Court.

10

0 0 22537

35. Sometime in this time period, the Government was also having conversations with the DOS
and ONCIX about the differences between a ?draft? and ?interim? report. The Court asked MAJ
Fein the following question:

THE COURT: So the Government?s position if I am understanding it then, is that
you saw a distinction between the Department of State - which you told me the
Department of State has not completed a damage assessment; and I guess what
is the difference between what the Department of State?s position was at that time
and what was at that time?

Id. Again, MAJ Fein was not able to provide an answer:

MAJ Fein: Your Honor, to be honest, the Government does not necessarily know.
We asked the questions and this is what we are given and what we relayed to the
Court. To us, there is a difference between a draft and an interim. A draft is an
ongoing document. An interim is something that is produced as a snapshot in
time, to memorialize the information. So we did have discussions with both
entities on what the differences could beasked ?do
you have any documentation or do you have a damage assessment, and if not,
what do you have?? And these were the responses that we were given and that
we relayed to the Court. So again, we have never maintained that we didn?t know
they were doing one. In fact, I think it was publicly announced, and the Defense
has notified the Court in one ofthe very first filings that it was.publicly
announced that they were doing one, but the extent of what they did - the
prosecution had no clue, we had to rely on what they were told, or what we were
told.

Id. (emphases supplied).

36. Importantly, MAJ Fein?s statement reveals that at some point in the time period of February-
March 2012, the Government actually had ?discussions? with ONCIX ?on what the differences
could be [between a draft and an interim report].? If the Government and ONCIX are having
conversations about the (self-imposed) distinctions between a ?draft? and an ?interim report? so
as to formulate a less-than-truthful response to the Court, there is most certainly a problem. If
the Government felt it necessary to discuss the differences between a draft and an interim report
with ONCIX, then clearly it knew that while ONCIX might not have an interim report, it most
certainly had a draft.

37. MAJ Fein also says ?but asked ?do you have any documentation or
do you have a damage assessment, and if not, what do you have Id. (emphases supplied).
Apparently, even though MAJ Fein claims to have asked this question, either: a) ONCIX did not
answer it; or b) the Government failed to communicate response to the Court.

c) The Govemment?s Timeline of Events Post-23 March 2012 Does Not Make Sense

11

. . 22538

38. The Government says that, after the Court?s ruling on 1 I May 2012 regarding the DOS
damage assessment, the Government went back to ONCIX to get ONCIX to reassess their
position:

MAJ Fein: So, so the Govemment?s position isn?t that we didn?t know that
they weren?t in the process of creating a damage assessment, but we were
unaware that they had any other documentation created that would even qualify as
a draft. Once we received the Court?s Order on 1] May, we had them relook and
reassess and that is when we started this process.

MAJ Fein: the prosecution had no clue, we had to rely on what they were told,
or what we were told. And then we remedied it the moment we realized that,
that, we attempted to remedy it once we realized, and asked them to reassess their
position based off the Court?s Order of 1] May. But they had to come back to us
to say ?yes, what we read actually means we have something like that. Not what
necessarily we told you before.? Of course, everything changes as time goes on.
So, once they told us, we then went through the procedures and we are here.

MAJ Fein: And so, going forward your Honor, after that Ruling and then after we
re-litigated the Department of State, then we sent that and said listen, essentially
as we have outlined in our memo to ODNI on behalf of NCIX, and then their
response back. On I 1 May the Court ruled even a draft damage assessment from
the Department of State is discoverable in that form. We re-liti gated that. Does
this, does this information apply to ya-all (sic)? Based off of what you have
previously told us. And at that point they said we need to have a meeting. We had
the meeting within a week.

Id.

39. There are several things that do not make sense here. If ONCIX represented to the
Government that it did not have an interim damage assessment, why it is necessary to ?have
them relook and reassess? after the Court?s Order on 1 I May? If the Government genuinely
believed that ONCIX did not have a draft/interim damage assessment, there would be absolutely
no need to go back to ONCIX to get them to ?reassess their position? and ask whether ?this
information appli[es] to

40. Moreover, the Court?s order does not change the factual issue of whether ONCIX has a
draft/interim report all it says is that the DOS damage assessment is discoverable. But, in his
statement, MAJ Fein makes it seem like there was something special in the Court?s order which
would provide guidance to ONCIX in detennining whether what ONCIX had would qualify as a

5 By way of illustration, the Government has represented that DOJ does not have a damage assessment. After the 11
May 2012 Ruling, the Government (presumably) did not go back to DOJ to make sure that they still did not have a
damage assessment.

12



draft/interim report: ?But had to come back to us to say ?yes, what we read actually
means we have something like that. Not what necessarily we told you before.? Id. (emphases
supplied). The Court?s ruling does not in any way help ONCIX in determining whether ONCIX
has ?something like [the DOS draft]? as the ruling does not describe the DOS damage
assessment. All the ruling says is that the DOS damage assessment is discoverable, even in
draft fonn. The substantive portion of the Court?s ruling reads, in its entirety, ?The Court has
examined both the classi?ed letter and the classi?ed DOS Damage Assessment and ?nds that the
DOS Damage Assessment is a draft damage assessment. The fact that it is a draft does not make
the draft speculative or not discoverable under RCM 701.? See Appellate Exhibit p.
1. In others words, the only thing to be gleaned from the Court?s ruling is that a draft damage
assessment is discoverable, not that what ONCIX has in its possession quali?es as a draft.

41. In reality, the Defense believes that both the Government and ONCIX knew that ONCIX
had a draft or interim report at the time that the Government made its misrepresentations to the
Court. What the Government and/or ONCIX did was craft a very deliberate statement which
would allow them plausible deniability: has not produced any interim or ?nal damage
assessments in this matter.? If they were ever caught, they could simply say that they never
represented that ONCIX did not have a draft (which, according to the Government is distinct
from an ?interim? damage assessment).

42. The only thing that changed on 1 1 May 2012 was the Government?s (and perhaps
belief about the legal discoverability of a draft damage assessment. This, however, does not
change the underlying factual issue that the Court asked about, i.e. does ONCIX have some sort
of damage assessment? The Government should not be permitted to hide facts from the Court
because of a belief that those facts will not be important in light of subsequent legal rulings.

d) The Government Cannot Be Permitted to Blindlv Parrot Assertions from Other Agencies

43. The Government is hiding behind what ONCIX apparently told them on several occasions to
disclaim any responsibility for not being forthright with the Court. Above all, the Court should
not lose sight of the fact that the Government knew that ONCIX was working on a damage
assessment and did not share this fact with the Court or Defense. At the end of the day, this is
the most troubling omission.

44. MAJ Fein repeatedly casts blame on ONCIX for the misstatements, saying that the
Government simply repeated what it was told:

MAJ Fein: And then their response of course given was the department of,
ONCIX has not completed a damage assessment - to date they have not produced
any interim or ?nal damage assessment in this matter. That is what they gave us
and told us.

MAJ Fein: Orally your Honor. And so, by us writing that down, and inquiring is
this all you have, is this what it is?? And this is the response we received. That is
ultimately what we fast forward, at the motions hearing, on the record, both at

13



the 802 conference after the motions hearing, and on the email inquiry on 21
March, when asked. As you will notice from the Court?s motion to compel
discovery dated 23March 2012, the Court documented the email questions and
those email questions were does the damage assessment essentially exist with
ODNI, or excuse me with ONCIX. And we responded in an email ONCIX has
not produce any interim or ?nal damage assessments in this matter. We asked
them the questions. We don?t have any other access to their ?les. They answered
it. So, at that point we relayed that to the Court, we relayed it to the Defense and
the Court ruled. Then

MAJ Fein: Correct your Honor. It is our belief, at that point, that they were
compiling these other assessments we knew about because we started reaching
out once they told us about it to go get those. But, that they had no other
documentation that would be subject to discovery - based off this response.

MAJ Fein: We asked questions, we give them the relevant cases, the case law, we
show them the discovery requests and any other orders. And then they give us the
answer. Or give us access and we go search them for the answer. And in this
case, they gave us the answer. We relayed that to the Court.

MAJ Fein: Yes, your Honor, we did. And we were told that they were compiling
the documents to do a damage assessment. We asked what is the status of the
damage assessment so that we can relay it to the Court and this was the exact
wording we were given.

MAJ Fein: We inquired into what documentation they had, that we could
report on whether they have a dra? damage assessment. And they reported back
again, to date ONCIX has not produced any interim or final damage assessment in
this matter, when we asked them the question.

MAJ Fein: So we did have discussions with both entities on what the differences
could beasked ?do you have any documentation or
do you have a damage assessment, and if not, what do you have?? And these
were the responses that we were given and that we relayed to the Court.

Article 39(a) Audio Recording 6 June 2012.

45. MAJ Fein would have the Court believe that the conversations consisted of him constantly
probing ONCIX, only to be met with a robotic and repeated: has not produced any

14

interim or ?nal damage assessments in this matter.? Based on MAJ Fein?s version of events,
there were at least three conversations about the issue of what ONCIX had. MAJ Fein would
have the Court believe that the conversation went something like this:

MAJ Fein: We are calling to inquire as to what ONCIX has in terms ofa damage
assessment.

ONCIX: ONCIX has not produced any interim or final damage assessments in
this matter.

MAJ Fein: I understand that. Can you tell me where you are in the process of
working on the damage assessment? -
ONCIX: ONCIX has not produced any interim or final damage assessments in
this matter.

MAJ Fein: Even though you don?t have an interim assessment, do you have a
draft?

ONCIX: ONCIX has not produced any interim or ?nal damage assessments in
this matter.

MAJ Fein: How about this -1 understand what you don?t have. Can you tell "me
what you do have, so that we can relay that to the Court?

ONCIX: ONCIX has not produced any interim or final damage assessments in
this matter.

MAJ Fein: Would it be correct to say that you are in the process of working on a
draft damage assessment?

ONCIX: ONCIX has not produced any interim or final damage assessments in
this matter.

Id.

46. The above hypothetical colloquy is intended to illustrate the absurdity of MAJ Fein?s latest
representations to the Court that he had several (at least three) conversations with ONCIX and
that ?this was the exact wording [he was] given? time and again. Id. MAJ Fein states that he
repeatedly probed into what ONCIX had, all to no avail (?We asked questions, we give them the
relevant cases, the case law, we show them the discovery requests and any other orders.?; ?We
asked what is the status of the damage assessment so that we can relay it to the Court?; ?We
inquired into what documentation they had?; ?We asked the questions and this is what we are
given?; ?but asked ?do you have any documentation or do you have a
damage assessment, and if not, what do you have??). Id. To believe the Government is to
utterly disregard common sense and to suspend disbelief as to how normal conversations take
place.

47. Even if it is true that ONCIX communicated nothing but that one sentence has
not produced any interim or final damage assessments in this matter? (apparently over and over
again), a prosecutor is not pennitted to blindly rely on such an assertion when he has knowledge
to the contrary. At the very least, the Government had an obligation to say something to the
Court to the effect, ?We know that ONCIX is working on a damage assessment, but they have
told us that they do not have any ?nal or interim reports in this matter.? At that point, the Court

IS

22541

0 22542

could have taken appropriate action (including, for instance, calling an ONCIX witness to
discuss what ONCIX had or ordering the production of what ONCIX had).

48. The Government?s parroting back of one-line statement casts serious doubts on
other Government representations in this case. At this point, we do not know whether certain
representations are based on ?rst?hand knowledge of the Government, are based on unchallenged
statements from other agencies, or are technically true but incomplete.

e) If the Government is to be Believed, ONCIX Completed a Draft Damage Assessment
with Record Speed

49. The Government?s story requires the Court to believe that from October 2010 until 21
March-2012, ONCIX did not have anything that would qualify as a draft or interim damage
assessment. However, sometime between 21 March 2012 (when the Government made its
representation that has not produced any interim or ?nal damage assessments in this
matter?) and 17 May 2012, ONCIX created a draft damage assessment.

50. Otherwise stated, ONCIX did nothing with the information it had collected for nearly 18
months and then, in less than 2 months, created a draft damage assessment. As if that weren?t
enough, it planned on creating a ?nal damage assessment by mid-July 2012. In short, the
Government is representing that ONCIX had nothing for 18 months and that 4 months later,
ONCIX will have produced a ?nal damage assessment.

51. This conflicts with the Government?s account of how damage assessments are completed.
At oral argument, MAJ Fein explained, ?Damage assessment themselves are living documents
that capture damage as the date of the document. It doesn?t mean that damage can't happen the
next day; which is why it is a very long process.? Article 39(a) Audio Recording 15 March 2012
(unauthenticated record of trial at p. 165). As is clear from MAJ Fein?s own words, damage
assessments do not go from ?zero? to ??nal? in a matter of four months.

52. Moreover, as pointed out by the Defense in oral argument, page 4 of DOS damage
assessment shows that ONCIX did have a draft damage assessment at the time the Government
made its representation to the Court. Additionally, the damage assessment completed by the
Department of Homeland Security indicates that it is for damage assessment. 6 Thus,
either ONCIX is lying or the Government is lying.

1) The Govemment?s Account of its Brady Obligations With Respect to the 63 Agencies
Does Not Make Sense

53. On 23 February 2012, the Government represented at an 802 session and on the record that it
had been conducting a Brady search for approximately a year and that it found no Brady
material. Article 39(a) Audio Recording 23 February 2012, (unauthenticated record of trial at p.

6 As previously stated, the Defense was provided noti?cation of the Department of Homeland Security?s damage
assessment for the ?rst time on 8 June 2012. The Government has yet to provide noti?cation to the Court.

16

. . 22543

39). It stated that it had searched different sub-agency ?les, even going so far as to the
Department of Agriculture.7 In this respect, the Court stated:

MJ: The government advised the Court that although it has been extensively
engaged in evaluating executive branch and sub-branch ?les for discoverable
infomiation prior to referral, the govemment?s due diligence obligations under
the Brady Williams case law; duty to ?nd, evaluate and disclose favorable and
material evidence to the defense will take additional time because of the need to
cull through voluminous classi?ed and unclassi?ed information contained
throughout executive branch [and] sub-branch agencies that have been involved in
the classi?ed infonnation disclosure investigations.

Id. at p. 38.
54. The Defense added the following:

Mr. Coombs: Just that the when government spoke about its Braa?z search they
stated at that time they had not found any Braajz material even though they had
looked for over a year.

Id. at p. 39.
55. The Court asked, ?Is that correct?? to which MAJ Fein responded:

MAJ Fein: Your Honor, that is correct but also at the same time [we] stated that
material continues to evolve because this is an on-going issue.

Id.

56. The Defense assumes that these sub-agencies that the Government represented it had been
searching for a year prior to the February 2012 motions argument are the same 63 agencies that it
refers to in Appellate Exhibit C.

57. The Govemment?s latest admissions (below) prove that its previous statements about its
Brady search were not truthful.

MAJ Fein: The NCIX as explained in the Government?s ?ling to explain the
difference between assessments and investigations. The NCIX is chartered to do
a national level, national counterintelligence review a damage assessment at a
national level. That?s what their - what the counter espionage act, excuse me,
what the counterintelligence act set up. We briefed that in our ?ling. That is their
charter. They do it govemment wide. They receive inputs from different
government organizations. What Mr., excuse me, what the Defense has already

7 ?Mr Coombs: Even going so far as going to the Department ofAgriculture to see ifthey had potential information
there. And then they stated; and they even state it here, that they have not found any Braa?x material.? Transcript at
p. 106.

17

. . 22544

referenced and we have already produced to the Defense are different entities that
have submitted their information to NCIX. We have not reviewed any document
that belongs to NCIX. Period. What we have done is, we have gone to the
originator, the owner of the information that was submitted to NCIX. The
original entities, to request approval to review their material, and if discoverable,
turn it over to the Defense. And that is what the Defense has been receiving.
Specifically, the ultimate source your Honor of these documents is not NCIX.
The source of the documents that the Defense is receiving in discovery are the
actual agencies. So as mentioned earlier on the record today, the Department of
Agriculture or the, or any of the executive departments that the Defense has
received, those organizations independently did their own and submitted those.
We have gone to those agencies for efficiency purposes. We have acquired the
documents, or attempting to finalize acquiring all of the documents. And then
once we obtain them or review them get approval to turn them over if
discoverable and give them to the Defense immediately once we get that
approval.

MAJ Fein: Correct your Honor. It is our belief, at that point [February 2012],
that they were compiling these other assessments we knew about because we
started reaching out once they told us about it to go get those. But, that they
had no other documentation that would be subject to discovery based off this
response. So, yes we did know that their individual organizations were
submitting theirs, and that is why we went out to those independent organizations
to get them approval and disclose them.

Article 39(a) Audio Recording 6 June 2012 (emphases supplied).

58. As is clear from the above passages, MAJ Fein states he became aware that ONCIX had
received inputs from various agencies in February 2012, and it was at that point that the
Government began reaching out to these different agencies. (?we knew about [these other
agencies] because we started reaching out once they told us about it to go get those.?; ?So as
mentioned earlier on the record today, the Department of Agriculture or the, or any of the
executive departments that the Defense has received, those organizations independently did their
own and submitted those?). Id.

59. Indeed, this is con?rmed in an email from SGT Bradley (a paralegal for the Government to
the EPA. SGT Bradley writes on February 27, 2012:

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 ofthis
email is to request a copy of all documents your organization provided to NCIX
approximately one year ago. Although we have been coordinating with
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. See Attachment.

I8

. . 22545

60. It is clear that it wasn?t until mid-February 2012 that the Government even began searching
for Braa?z material from the 63 agencies. The search happened only because ONCIX told the
Government that the Government could not ?review copies of [various] organization?s
documents in possession? and must go to the original source of the documents.8 This
begs the million dollar question: lfthe Government did not begin its search ofthe 63 agencies
until mid-February 2012, how could the Government represent to the Court that it had already
searched these same ?les in the year prior to referral? This simply does not make sense. The
Government either did not search these ?les for the one?year prior to February 2012 (in which
case, the Government will have misrepresented that it had conducted such a search) or the
Government did search these ?les, but concluded that the information therein was not
discoverable (in which case, this would reveal that: a) the Government did not understand the
Brady standard at the time of the original search; and b) that the Government misrepresented
when it learned of these other agencies? involvement). The Government?s dates and
representations simply do not line up and it should ?nally be held to account for its continued
misrepresentations.

61. Moreover, SGT Bradley?s email reveals that the Government had been ?coordinating with
for the past year.? Id. If this is the case, then the Government should have known
what ONCIX had by way of a damage assessment. Moreover, how could the Government have
been ?coordinating? with ONCIX for a year and still not be reaching out to the individual
agencies that provided inputs until February 2012? What was the Government doing for that
year? Why did it take a year for the Government to ?gure out that they had to go back to the
individual agencies for their respective damage assessments? None of this makes any sense.

g) The Letter from MAJ Fein to the General Counsel of ONCIX Demonstrates that The
Government Did Not Just Learn of the ONCIX Draft on 17 May 2012

62. The letter from MAJ Fein to Ms. Tricia Wellman, the Deputy General Counsel at ODNI,
reveals that the Government did notjust learn that ONCIX had a draft damage assessment at the
17 May 2012 meeting as MAJ Fein suggests. MAJ Fein paints a picture where, after sharing the
Court?s 1 1 May 2012 ruling with individuals at ONCIX determined that they
did, in fact, have a draft damage assessment and convened a meeting with the Government to
determine the way forward. lfthis was the case, the letter to Ms. Wellman would have read
quite differently. It might have read something to the effect:

Ms. Wellman:

During the March 2012 motions argument and in subsequent emails to the Court,
based on the input received from NCIX, the prosecution proffered to the Court

8 The Government says that it began searching the 63 agencies for damage assessments once ONCIX ?told [the
Government] about it? in the February timeframe. However. the Government also says ?We have not reviewed any
document that belongs to NCIX. Period.? See Article 39(a) audio recording 6 June 2012. Presumably, this means
that ONCIX gave the Government the list of the 63 agencies that had submitted damage assessments to ONCIX
orally. Again, it is hard to believe that a representative from ONCIX would be on the phone with trial counsel,
while the latter wrote down each and every one of the 63 agencies. More likely than not, the Government had seen a
copy of the ONCIX damage assessment, or at least a copy of the list of agencies that ONCIX had contacted.

19

. . 22546

that NCIX had not completed any interim or ?nal damage assessment. We have
since learned, after a meeting on 17 May 2012, that NCIX does, in fact, have a
draft damage assessment. Given this new infonnation, we must infonn the Court
that NCIX does have a draft damage assessment.

63. Nowhere in the letter does MAJ Fein say that he hasjust learned that ONCIX has a draft
damage assessment. Instead, he speaks about the ?draft? as though he has known about it all
along. See Appellate Exhibit CXIX, Letter from MAJ Fein to Ms. Wellman, 24 May 2012 (?the
Court ruled that the Department of State?s damage assessment was discoverable, but did not rule
on draft?; ?based on the Court?s ruling, the previous discovery order, and applicable
ethical obligations, the prosecution believes it must review draft damage
In fact, MAJ Fein asks for access to ?the most recent version of the
draft damage assessment? and asks ONCIX to ?make the most recent draft available for review
as soon as possible.? Id. This statement reveals that there are in fact, different versions of the
draft damage assessment that MAJ Fein learned about. If a draft wasjust
completed, how can it be that there are already multiple versions of it? If MAJ Fein had just
learned that ONCIX had a draft damage assessment, he would have asked Ms. Wellman for ?the
draft damage assessment? not for ?the most recent version of the draft damage assessment.?



64. The above facts, coupled with the Defense?s submissions in Appellate Exhibit (Defense
Reply to Prosecution Response to Supplement to Defense Motion to Compel Discovery
Defense Motion for Modi?ed Relief); Appellate Exhibit CXX (Defense Response to Prosecution
Notice to Court of ONCIX Damage Assessment) should reveal that things did not happen as the
Government claims they did.

65. The Defense urges this Court to use 0ccam?s Razorg the simplest explanation is most
likely the correct one. The simplest explanation here is the following: Both the Government and
ONCIX knew that ONCIX had a draft damage assessment. The Government did not tell the
Court this because the damage assessment is favorable to the accused and the Government
believed that a draft damage assessment should not be discoverable. When the Court ruled for
the second time that a draft damage assessment was indeed discoverable and the Defense ?led its
Motion to Compel Discovery the Government realized it had to fess up to the Court about
concealing the ONCIX damage assessment. This is, in reality, the most likely version of events
and the only version of events that does not require the Court to completely suspend common
sense and betterjudgment.

II) The Government?s Latest Submission Does Not Refute Any of the Defense?s
Allegations

9 ?Occam?s razor is the law of parsimony, economy or succinctness. It is a principle urging one to select from
among competing hypotheses that which makes the fewest assumptions and thereby offers the simplest explanation
ofthe effect.? See

20

. . 22547

66. The Govemment?s latest response says a whole lot of nothing. As indicated, the response
does not even attempt to address any of the factual inconsistencies and issues raised by the
Defense, including, but not limited to, the following:

a) Why didn?t the Government tell the Court about the ONCIX damage assessment?

b) Why did the Government represent that it had searched the ?les of 63 agencies prior
to February 2012 and found no Braafy, but now is saying that it did not begin its
Braajz search until February 2012 after ONCIX informed the Government that it
needed to go to these agencies?

c) When did the Government learn of the FBI impact statement? (not when did it get
approval to tell the Defense). When did the FBI begin the impact statement? When
did it complete the impact statement?

d) When did the Government learn of the Department of Homeland Security damage
assessment? Why didn't the Government tell the Court about this at the 6 June 2012
motions argument, given that the parties and the Court were in the process of
discussing what damage assessments existed?

e) Why didn?t the Government ever follow-up with Why did it take someone
at HQDA, nine months after the original memo was circulated, to realize that nobody
had conducted a Brady search?

f) Why hadn?t the Government already searched the files of the Department of State?
How can it be that two years into the case, the only document from the Department of
State that the Government has seen is their Damage Assessment?

g) Why has the Government not completed a Brady search of documents that it agrees
are under military possession, custody and control?

h) Why has the Government not yet completed a Brady search of closely aligned
agencies?

67. Instead of answering these questions, or even one or two of these questions, the Government
used the two-week extension by the Court to repeat what it has already said over and over again
that it understands Braa?z and it is working diligently to produce Braajz discovery. The
undisputed facts belie any assertion that the Government is being diligent in it Braa?z search. If it
were, it would have answers to the questions outlined above.

68. Since the Government has not actually addressed the issue that it had indicated it would
address, the Defense is instead left to respond to a more robust argument that the
Government has already made in its 24 May 2012 submission. See Appellate Exhibit
(Prosecution Response to Defense Motion to Compel Discovery In this respect, the
Defense would specifically like to address the following:

1. The Defense is not clear on why the Government is arguing in this motion that ?the
defense does not possess an unlimited right to discovery? and providing case citations to
that effect. Government Response, p. 2-3. That is not what this motion is about. This
motion is about whether the Government should be held to account for the steps it has
taken in complying with discovery obligations. Thus, the Defense is unclear what the
purpose ofthe discussion on pp. 2-3 is.

2]



The Government is not correct when it states at p. 3 that ?the defense does not have a
right to discovery prior to referral under RCM 701 or Brady.? Under the military?s
version of Braabz, R.C.M. 701(a)(6), discovery must be produced ?as soon as practicable?
without reference to the date of referral. Other rules, including R.C.M. 70l(a)(2) refer to
?service of charges? as being the triggering date but not R.C.M. 70l(a)(6).

The Government?s statement on p. 3 that ?the United States has disclosed more broadly
than the rules of discovery require? is laughable. The Government states that ?the
prosecution disclosed FBI information regarding the accused?s travel and bank records
that was not required to be produced under RCM 70l(a)(6) nor Braabz.? The Government
here is referring to the fact that it provided these records as part of the FBI investigative
?le. The Defense estimates that approximately 90-95% of the ?le is redacted. There are
pages upon pages of black in the ?le the Defense has received. To claim that the
Government has gone ?above and beyond? in producing travel and bank records (records
which the accused already has because they are his records) is disingenuous to say the
least.

The Government suggests at p. 4 that ?[a]bsent misconduct, a Brady violation does not
occur until the completion of trial? though it concedes that ?misconduct, including
gamesmanship, constitutes a Brady violation no matter the timing.? The Government is
getting caught up again in the wrong issue. For the purposes of this motion, the Defense
is seeking an accounting for the Govemment?s due diligence obligations because things
simply ?do not add up.? Whether we call it a ?Brady violation? or something else
doesn?t really matter. However, the Defense would submit that a failure to conduct a
diligent Brady search would constitute a Brady/discovery violation.

The Government states at p. 4, ?Here, the Court found neither prosecutorial misconduct
nor a discovery or a Brady violation.? The Defense submits that, in light of the evidence
at the time, the Court?s ruling was very generous and gave the Government the bene?t of
the doubt. Many events have come to light after the Court?s ruling in March 2012
the lack of diligence with respect to the Department of State; the ONCIX damage
assessment; the FBI impact statement; the HQDA memo). The Government cannot
continue to rely on the Court?s ruling from three months ago to shield it from current
scrutiny.

The Government seems to suggest that the Defense does not have the right to call the
Government to task for its Brady failures because the Defense is concurrently raising
motions to further the interests of PFC Manning. See p. 4 (?Still, the defense raises anew
complaints of the timing of discovery without regard to the motions it has submitted to
the To the extent that this is the implication ofthe Government?s statement, it

is preposterous. A Defense counsel is entitled to do everything to advance the interests of
his client; indeed, if he does not, he may be subject to a claim for ineffective assistance of
counsel. To suggest that the Defense should not complain about the timing of discovery
because it, itself, is raising critical motions is absurd.

22





7. The Government has once again misrepresented the Defense?s argument regarding
R.C.M. See p. 4. Despite clarifying this for the Government no less than three
or four times, the Government still believes that the Defense is saying that ?federal
agencies are military authorities under RCM For the ?fth time, the
Defense?s argument is that ?les belonging to agencies that are closely aligned with the
Government in this case are in the ?possession, custody or control? of military authorities
for the purposes of R.C.M. 70 The Government refers to this claim as ?novel?
and ?unorthodox.? It is not novel or unorthodox. It is the law in federal court and the
Defense submits, it is the law in military courts as well.

8. The Government makes a convoluted argument at p. 5 (?Citing the prosecution's legal
arguments twenty-?ve times, the Defense improperly equates discovery litigation with an
alleged discovery violation. However, despite the numerous citations to prosecution
responses, the defense does not explain how a statement of the prosecution's steps in
complying with its obligations under Brady and RCM 70l(a)(6) would alleviate the
allegations conjured by the defense. Indeed, the defense attempts to make prosecution
responses to defense motions the basis of its motion requesting unprecedented relief
without explaining how the relief will cure the hypothetical prejudice that has not
occurred?). First, how is the Defense to know what the Government is doing with
respect to discovery absent using the Government?s responses? Second, it self-evident
how a due diligence accounting would ?alleviate the allegations conjured by the
defense.? If the Government provides an accounting, the Court and Defense will know
what is being searched and not searched, and how we should proceed from here.

69. Moreover, the Government requests that, should an accounting be ordered, it be permitted to
?le the accounting ex parte. The Court should not pennit an ex parte due diligence ?ling by the
Government. Answering questions about the steps it has taken in discovery does not implicate
attorney work-product. Indeed, the Government has already provided sample letters sent to
various agencies, examples of the speci?c requests that were made, and the dates on which
certain requests were made.

70. The Defense believes that the Government?s attempt to account for its diligence ex parte is
an attempt to protect it from scrutiny by the Defense. To date, it has been the Defense that has
alerted the Court to the numerous and varied problems in the Government?s submissions such as,
the Government?s use of the words ?alleged?, ?completed? and ?unaware?; the Government?s
citing of the federal appellate standard for Brady; the Government?s obfuscation with respect to
the difference between a ?damage assessment? and an ?investigation?; the Government?s failure
to follow?up on the HQDA memo etc. By providing a due diligence accounting to the Court ex
parte, the Government may be more inclined to take liberties with the truth, because there is no
one but the Military Judge to challenge the Government")

The Defense submits that if, for whatever reason, there is a limited portion of the due
diligence accounting that is classi?ed, the Government should redact that portion and the

'0 It is ironic that the Government is requesting to submit a due diligence statement ex parte, while citing United
Slates v. Bumgarner, 49 C.M.R. 770, 772 (A.C.M.R. 1974) for proposition that ?objecting? is essential to
?maintain[ing] the adversarial system.?

23



Military Judge should decide whether that portion should be provided for the Defense. At the
end of the day, if the Government has nothing to hide, it should not be afraid to account to
Defense, the Court and the public at large for all the steps it has taken in this proceeding.

72. The Defense believes that 30 days is an unreasonably long period of time to chronicle its due
diligence efforts. The purpose of such an accounting is so that the Court and the Defense know
what is still outstanding and can proceed accordingly g. by ordering certain ?les to be
searched, etc.). In fact, the request for 30 days to provide a statement of its due diligence itself
speaks volumes about the slow pace of discovery and lack of diligence of the Government. If the
Government has been keeping track of what it is doing, there is no reason it should not be
prepared to provide the accounting in a matter of days.

73. The Defense submits that the following passage from United States v. Chapman, 524 F.3d
1073 (9th Cir. 2008), wherein the Ninth Circuit af?nned the district court?s decision to dismiss
the indictment due to reckless violations of the government?s discovery obligations, is apposite:

Here, although the case involved hundreds of thousands of pages of discovery, the
AUSA failed to keep a log indicating disclosed and nondisclosed materials. The
AUSA repeatedly represented to the court that he had fully complied with Brady
and Giglio, when he knew full well that he could not verify these claims. When
the district court ?nally asked the AUSA to produce veri?cation of the required
disclosures, he attempted to paper over his mistake, offering ?in an abundance of
caution? to make new copies ?rather than ?nd the record of what we turned over.?
Only when the court insisted on proof of disclosure did the AUSA acknowledge
that no record of compliance even existed. Finally, the dates on many of the
subsequently disclosed documents post-date the beginning of trial, so the
government eventually had to concede that it had failed to disclose material
documents relevant to impeachment of witnesses who had already testi?ed. In this
case, the failure to produce documents and to record what had or had not been
disclosed, along with the affirmative misrepresentations to the court of full
compliance, support the district court?s ?nding of ?flagrant? prosecutorial
misconduct even if the documents themselves were not intentionally withheld
from the defense. We note as particularly relevant the fact that the government
received several indications, both before and during trial, that there were
problems with its discovery production and yet it did nothing to ensure it had
provided full disclosure until the trial court insisted it produce veri?cation of such
after numerous complaints from the defense.

Id. at 1085. There are several important things about this passage. First, the court indicates that
a diligent prosecutor would have kept logs or records of discovery; thus, a prosecutor would not
require 30 days to disclose such information to the court. Second, Chapman provides precedent
for a court to require a prosecutor to provide a due diligence accounting when it becomes clear
that there are issues with discovery. Third, it is interesting that the prosecutors in Chapman who
were found to have committed discovery violations used the two of the same expressions that the
Government is so fond of using (?we understand and are complying with Brady? and ?in an
abundance of caution?).

24

0 0 22551

74. Finally, the Government apparently has not thought very carefully about its request that any
delay be attributable to the Defense for speedy trial purposes.? If the Court orders the
Government to conduct a due diligence accounting, it is because the Court believes that
something is not be right in the discovery process. In such circumstances, how can the delay
then be attributable to the Defense for speedy trial purposes?

75. In short, the Court should regard the Government lack of candor in its latest submission as
revelatory. After the Court expressed serious concerns about the ONCIX damage assessment at
the.last motions argument, one would think that the Government would be direct and forthright
with the Court at this point about certain key issues such as the FBI impact statement, the HQDA
memo, etc. The fact that the Government hasn?t been forthright and instead insists that it will
not provide any details absent a Court order tells us that something is very wrong with the
discovery in this court?martial.

CONCLUSION

76. For all the reasons stated herein? the Defense moves for the Court to order the Government
to provide a due diligence accounting of the steps it has taken to comply with its Braafy
obligations.

Respectfully submitted,
,4 if



DAVID EDWARD COOMBS
Civilian Defense Counsel

This is illustrative ofthe numerous nonsensical positions the Government takes in this litigation. For instance, the
Defense requested witnesses from ONCIX, the FBI and DHS in support ofthe 25 June 2012 motions argument. The
Government opposed on the basis that this was a new issue that should be litigated in July, after the motions
argument in which the witnesses would have testified In the Government?s zeal to oppose any Defense request or
motion, the Government has lost all common sense.

'2 as well as the reasons stated in Appellate Exhibit XCVI (Defense Motion to Compel Discovery Appellate
Exhibit (Defense Reply to Government Response to Motion to Compel Discovery Appellate Exhibit
XCIX (Supplement to Defense Motion to Compel Discovery Appellate Exhibit Cl (Defense Reply to
Prosecution Response to Supplement to Defense Motion to Compel Discovery Defense Motion for Modi?ed
Relief); Appellate Exhibit CXX (Defense Response to Prosecution Notice to Court of ONCIX Damage
Assessment); and the Defense?s ?lings of I8 June 2012 and 21 June 2012 requesting witnesses for the purpose of
this motion)

25

0 22552

ATTACHMENT

. . 22553

Bradley, Princeton SGT USA JFHQ-NCRIMDW SJA




Faun:
Sent: Friday, March 02. 2012 12:54 PM

To: A SJA
Cc:
Subject: er eques 0 av ew XResponse (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 2490 documents, EPA determined that
there were no EPA docuents that were problematic and needed to reported and provided to
NCIX. EPA informed this to NCIX in an informal, oral communication.



From: "Bradley, Princeton L. SGT USA
1)



To:
Cc:

Date: 92 27 2012 64:52 PM
Subject: Request to Review NCIX Response (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: FOUO

Ha?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 "wkileaks.' The
purpose of this email is to request a copy of all documents that your organization provided
to NCIX approximately one year ago. Although we have been coordinating with 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 if there is any information that may be
discoverable and may require production by the government. None of the information will leave
our office, unless your organization has approved its release, and it will remain classified

at all times.

we would like to review the documents from your organization as soon as possible. This short
suspense is necessary as the accused was arraigned last week, and to allow for enough tim to
coordinate with your organization, if information is discoverable. If the information is
classi+ied, please feel free to use the lead prosecutor's SIPRNET and JWICS email addresses
below to transmit your documents. If you would like to speak with me, please call at 262-
685-1975 and if you would like to speak with our lead prosecutor, please call Captain Ashden

Fein at 292-685-4572.
1

ManningB_00447381



0 22554

Thank you.



Very Respectfully,

Princeton Bradley

Sergeant, U.S. Amy

var-alegal Non-Counissioned Officer
nilitary Justice, OSJA



Classification: LNCLASSIFIED
Caveats: souo



. . 22555

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REQUESTED
INSTRUCTION: ARTICLE 92
AND SPECIFICATION 1 OF
CHARGE II

V.

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



DATED: 22 June 2012



l. The Defense requests the Court issue the standard Military Judges Benchbook instructions for
the Article 92 offense in Charge

2. The Defense requests the following instructions to be given to the panel regarding
Specification 1 of Charge 11:

Court Instructions

In Speci?cation and Charge II, the accused is charged with the offense of disorders and
neglects to the prejudice of good order and discipline or of a nature to bring discredit upon the
armed forces, a violation of Article 134, UCMJ. To find the accused guilty of this offense, you
must be convinced by legal and competent evidence beyond a reasonable doubt of the following
two (2) elements:

I) 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,wrongfully and wantonly cause to be
published on the intemet intelligence belonging to the United States government, having
knowledge that intelligence published on the intemet is accessible to the enemy: and

(2) 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.

Authority: Article I34, UCMJ, IO U.S.C. 934; Military Judges Benchbook, DA Pam 27-9,
para. 3-60-2A.

Court De?nitions
(1) Wrongfullv and Wantonly Cause to be Published on the Internet
The first element that the government must prove beyond a reasonable doubt is that the accused

wrongfully and wantonly caused to be published on the Internet intelligence belonging to the
United States.

APPELLATE \v I 3?-4 3
or Pagetsl LI



?Wrongful? or ?wrongfully? means without legal justi?cation or excuse.

?Wanton? or ?wantonly? includes ?recklessness? but may connote willfulness, or a disregard of
probable consequences, and thus describes a more aggravated offense.

A person causes intelligence to be published on the Internet when the person personally
publishes the intelligence on the Internet or knowingly or intentionally induces or sets in motion
acts by an animate or inanimate agency or instrumentality which result in the publication of the
intelligence on the Internet.

If you ?nd that the accused did not wrongfully and wantonly cause intelligence to be published
on the Internet, you must ?nd the accused not guilty of this offense.

Authorig: Article 134, UCMJ, 10 U.S.C. 934; MilitaI'y Judges Benchbook, DA Pam 27-9,
para. MCM, Part IV, para. id., Part IV, para. 35.c(8) (de?ning ?wanton? for
purposes of Article 111); id., Part IV, para. 100a.c(4) (de?ning ?wanton? for purposes of Article
134, offense of ?reckless endangerment?).

(2) Knowledge that Intelligence Published on the Internet is Accessible to the Enemy

The second element that the government must prove beyond a reasonable doubt is that the
accused had knowledge that information published on the Internet would be accessible to the
enemy.

This element requires that the accused actually knew that information published on the Internet
would be accessible to the enemy. That is, actual knowledge on the part of the accused is
required, and constructive knowledge is insuf?cient. In other words, this element is not satis?ed
if you ?nd only that the accused should have known that information published on the Internet
would be accessible to the enemy, but that the accused did not actually know this fact.

If you ?nd that the accused did not actually know that information published on the Internet
would be accessible to the enemy, you must ?nd the accused not guilty. An accused?s mistake
as to this fact, no matter how unreasonable, is a complete defense to this offense, so long as the
mistake was genuine.

Authority: Appellate Exhibit at 5 (explaining that one of the elements of Speci?cation
1 of Charge II is ?that the accused knew that intelligence published on the intemet is accessible
to the enemy?); United States v. Nix, 29 C.M.R. 507, 511 (C.M.A. 1960); United States v.
Walters, 28 C.M.R. 164, 167 (C.M.A. 1959) subjective knowledge is required,
reasonableness is not one of the criteria which should be used in instructing on mistake of law or


(3) Conduct prejudicial to good order and discipline

With respect to ?prejudice to good order and discipline,? the law recognizes that almost any
irregular or improper act on the part of a service member could be regarded as prejudicial in
some indirect or remote sense; however, only those acts in which the prejudice is reasonably

2



direct and palpable is punishable under this Article.

With respect to ?service discrediting,? the law recognizes that almost any irregular or improper
act on the part of a service member could be regarded as service discrediting in some indirect or
remote sense; however, only those acts which would have a tendency to bring the service into
disrepute or which tend to lower it in public esteem are punishable under this Article.

Not every act of publishing intelligence belonging to the United States government on the
lntemet constitutes an offense under the UCMJ. The government must prove beyond a
reasonable doubt, either by direct evidence or by inference, that the accused?s conduct was
prejudicial to good order and discipline in the armed forces and was of a nature to bring discredit
upon the armed forces. In resolving this issue, you should consider all the facts and
circumstances to include the effect, if any, upon the accused?s or another?s ability to perform
his/her/their duties; the effect the conduct may have had upon the morale or ef?ciency of a
military unit; the harm, if any, to the United States or the unit from the alleged disclosures.

If you ?nd that the accused?s conduct was not prejudicial to good order and discipline and/or was
not of a nature to bring discredit upon the armed forces, you must ?nd the accused not guilty.

Authority: Article 134, UCMJ, 10 U.S.C. 934; Military Judges Benchbook, DA Pam 27-9,
para. United States v. Mayo, 12 286 (C.M.A. 1982); United States V. Perez, 33 MJ
1050 (A.C.M.R. 1991); United States v. Sellars, 5 M1 814 (A.C.M.R .1977).

Maximum Punishment

3. Rule for Courts-Martial (R.C.M.) 1003(c)(l)(B)(i) provides:

For an offense not listed in Part IV of this Manual which is included in or closely
related to an offense listed therein the maximum punishment shall be that of the
offense listed; however, if an offense not listed is included in a listed offense, and
is closely related to another or is equally related to two or more listed offenses,
the maximum punishment shall be the same as the least severe of the listed
offenses.

R.C.M.

4. The Defense submits the charged speci?cation is closely related to a violation of Article 92
for failure to obey a regulation, AR 380-5. First, Speci?cation 1 of Charge II and a violation of
AR 380-5 have similar mens rea requirements: the charged speci?cation requires that an accused
act wrongfully and wantonly (including recklessness, willfulness, or a disregard of probable
consequences), and AR 380-5 punishes one who ?knowingly, willfully, or negligently? discloses
covered information, AR 380-5, para. Second, the intelligence information covered by
Speci?cation of Charge II is likely within the de?nitions of ?classi?ed information? or
?sensitive information? contained in AR 380-5. Finally, the conduct underlying the offense
alleged in the charged speci?cation is closely related to the conduct that would constitute a
violation of AR 380-5: the disclosure of information to an unauthorized person entity. An

0 0 22558

Article 92 failure to obey a regulation carries a two?year maximum con?nement. So too does the
offense alleged in Specification 1 of Charge II.

5. Although the Government has alleged knowledge on the part of PFC Manning that
intelligence published on the Internet is accessible to the enemy, this does not rise to the
knowledge required by Article 104, aiding the enemy. The knowledge required for Speci?cation
1 of Charge II knowledge that information on the Internet could be accessed by an enemy is
far removed from the knowledge required for the Article 104 offense ?actual knowledge by the
accused that he was giving intelligence to the enemy.? Appellate Exhibit at 2.
Therefore, Specification 1 of Charge II is not closely related to a violation of Article 104.
Moreover, a capital offense may not be tried under Article 134, see 10 U.S.C. 934, and Article
104 provides for capital punishment, see id. 904 (providing that any person who violates the
section ?shall suffer death or such other punishment as a court-martial or military commission
may direct?). Thus, the Article 104 offense cannot be considered in determining what offenses
are ?closely related? under R.C.M.

6. The Defense respectfully requests the above instructions and definitions be given by the
Court.

Respectfully submitted,



DAVID EDWARD COOMBS
Civilian Defense Counsel

22559

UNITED STATESOF AMERICA

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

RULING:
DELAY OF COURT'SRULING
ON DEFENSE MOTION TO
COMPEL DISCOVERY #2
DATED:

8 June 2012

The Govemment has requested thirty (30) days to delay the Court's mling on the Defense
Motion to Compel Discovery #2 in order to search for the records conceming the Department of
State requested by the defense in its Addendum to Defense Motion to Compel Discovery #2.
The defense does not object to this request.
Factual Findings:
1. On 7 June 2012, three Department of State witnesses, specifically Ms. Marguerite Coffey,
Ms. Rena Bitter, and Ms. Catherine Brown, testified during a motions hearing in the above
captioned courts-martial. The witnesses referenced the below records in their testimony. The
witnesses testified that they were unaware whether the below records remain in existence.
(1) written assessments produced by the Chiefs of Mission used to formulate a portion ofthe
draft damage assessment completed in August of 2011;
(2) ; written Situational Reports produced by the WikiLeaks Working Group between roughly
28 November 2010 and 17 December 2010;
(3) written minutes and agendas of meetings by the Mitigation Team;
(4) Information Memorandum for the Secretary of State produced by the WikiLeaks Persons
at Risk Group;
(5) a matrix produced by the WikiLeaks Persons at Risk Group to track identified
individuals;
(6) formal guidance produced by the WikiLeaks Persons at Risk Group and provided to all
embassies, including authorized actions for any identified person at risk;
(7) information collected by the Director of the Office of Counterintelligence within the
Department of State (DoS) regarding any possible impact from the disclosure of diplomatic
cables; and
(8) any prepared written statements for the DoS's reporting to Congress on 7 and 9
December 2010.

APPELLATEE,\HIBITgO(x.V [ ( j l - S )
Page L_ofPage(s)3.

22560

2. On7June 2012,the Govemment requested the Court delay the Court'sruling for thirty (30)
days on the Defense Motion to Compel Discovery ^2, for information pertaining to the
Department ofState, in order to search for the above referenced records.
3. On7June 2012,the delense submitted its Addendum to Delense Motion to Compel
Discovery ^2 and requested the above records. The delense requested that the prosecution
produce this material under Rule for CourtsMartial (RCM) 701(a)(2)or, in the altemative,RCM
703. The defense also requested that the prosecution produce this material under RCM
701(a)(^)
ORDER:
1. The Govemment will immediately begin the process ofsearching for and inspecting the
following information:
(1) v^itten assessments produced by the ChiefsofMission used to formulateaportion of the
draft damage assessment completed in August of201I;
(2) v^ittenSituational Reports produced by the WikiLeaks Working Group between roughly
28 November 20I0andI7December 2010;
(3) v^itten minutes and agendas of meetings by the MitigationTeam;
(4) Information Memorandum for the Secretary ofState produced by theWikiLeaks Persons
at Risk Group;
(5) amatrix produced by the WikiLeaks Persons at Risk Group to track identified
individuals;
(^) formal guidance produced by the WikiLeaks Persons at Risk Group and provided to all
embassies, including authorized actions for any identified person at risk;
(7) information collected by the Directorofthe Office ofCounterintelligence within the
Department ofState (DoS) regarding any possible impactfi^omthe disclosure of diplomatic
cables; and
(8) any prepared v^itten statements for the DoS'sreporting to Congress on7and9
December 2010.
2. By8July2012,the Govemment shall noti^ the Court which of the above records exist and,
for those records that do exist,fileasupplementalresponse to the Defense'sMotion to Compel
Discovery ^2.

22561

So ORDERED this 8*^ day of June 2012.

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

0 22562

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
RULING: DEFENSE MOTION-

v. CLARIFICATION OF RULING
MOTION TO COMPEL
MANNING, Bradley E., PFC DISCOVERY 2

us. Army,

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

DATED: 25 June 2012



1. On 23 June 2012, this Court issues a Ruling re: Defense Motion to Compel Discovery
The Defense moved for clari?cation of the ruling. Both panics request the Court to decide this
issue at today?s article 39(a) session.

2. The Court?s order applies to files the Government has previously reviewed and files the

Government will review.

3. In its Motions to Compel Discovery, Defense proffered that the discovery is necessary for the
Defense to accurately assess the damage that the alleged leaks caused. As such, the Court
ordered the Government to disclose information from ?les subject to RCM 701(a)(2) that
involve investigation, damage, and mitigation measures. The law requires the Government to
disclose information obviously material to the preparation of the defense. Material means
relevant and helpful to the defense. Thus, the Government in reviewing ?les subject to RCM
701(a)(2) will provide the Defense any infonnation beyond the investigation, damage, and
mitigation measures that are obviously relevant and helpful to the defense.



DENISE R. LIND
COL, IA
Chief Judge, 15' Judicial Circuit

So ORDERED: this 25th day of June 2012.

APPELLATE EXHIBIT I I ate)
1 of Paws) I

0 22563

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
RULING: DEFENSE MOTION-
v. DUE DILIGENCE

MANNING, Bradley E., PFC

U.S. Army,
Headquarters an ea quarters Company,

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

DATED: 25 June 2012



1. On 10 May 2012, as part of its Motion to Compel Discovery, Defense moved this court to
suspend the proceedings for several weeks and require the Government to state with specificity
the steps it has taken to comply with its obligation to disclose information favorable to the
defense IAW RCM 701(a)(6). Defense further moved the Court to grant a 2-3 month
continuance after receipt of completed discovery until the start of trial. On 29, 30, and 31 May
2012, and on 7 June 2012, Defense submitted additional ?lings to the Court on this issue,
expanding its request that the Court suspend the proceedings and require the Government to state
with specificity the steps it has taken to comply with its discovery obligations under RCM
70l(a)(2), 70l(a)(6), and 905(b)(4). The Government opposes.

2. Defense moves the Court to require the Government to answer the following questions:

(1) What agencies (63) has the Government contacted to conduct a Brady Review? Has
the Government attempted to contact all agencies, to include: (lnteragency Committee Review)
(President?s Intelligence Advisory Board, House of Representatives Oversight Committee) to
conduct a Brady review??

(2) When did the Government make its inquiry?

(3) How many documents did the Government review?

(4) What were the results of the Government review?

(5) What did the Government ask of these agencies?

3. Defense further moves the Court to require the Government to turn over Brady material or
state there is no Brady information from the following files: CID, DIA, DISA, CENTCOM and
SOUTHCOM, FBI, DSS, DOS, DOJ, Government Agency, ODNI, ONCIX.

4. Defense provided the Court with a 17 April 2012 Memorandum for Principal Officials of
HQDA stated that ?it was only recently determined that no action had been taken by HQDA





APPELLAH2 Emisr



Tl?aa?/In





pursuant to the 29 July 2011 memorandum from DOD OGC to HQDA requesting it to task
Principal Of?cials to search for, and preserve, any discoverable information.

The Law: The Court has authority to order the Government to provide a due diligence statement
IAW RCM 70l(g)(l).

Conclusions of Law:

1. Since referral, there have been 2 broad Defense motions to compel discovery IAW RCM
70l(a)(2) and RCM 70l(a)(6) for information from the ?les of multiple agencies, aligned
government agencies, non-aligned government agencies, Interagency Committee Review,
President?s Intelligence Advisory Board, and House of Representative Oversight Committee.

2. This is a complex case involving multiple government agencies and entities. The Court is not
clear what identi?able ?les pertaining to PFC Manning relevant to this case are maintained by
the various agencies (including but not limited to those referenced in paragraph (3) above), what
inquiries the Government has made to discover the existence of agency ?les pertaining to PFC
Manning, when the Government became aware of the existence of particular agency ?les, and
what ?les the Govermnent has examined under RCM and/or RCM 70l(a)(2).

3. This Court must rule upon the motions to compel discovery that have been ?led in this case
and a speedy trial motion to be ?led by the Defense. One document containing the information
in paragraph (2) above will assist the Court in addressing discovery and speedy trial issues
arising during this trial.

4. The Court makes no ?ndings of lack of due diligence by the Government. Both parties will
have an opportunity to litigate the due diligence of the Government in providing discovery
during the speedy trial motion.

5. By 25 July 2012, the Government will provide the Court with a statement of due diligence, in
the format attached, stating:

a. Steps the Government has taken to inquire about the existence of ?les pertaining to
PFC Manning from Government agencies/entities;
b. When these inquiries were made;
c. When the Government became aware of the existence of each ?le pertaining to PFC
Manning from Government agencies/entities;
d. What ?les the Government has searched for Brady/RCM 70l(a)(6) information and
when;
e. What ?les the Government has searched for information material to the preparation of
the defense IAW RCM 701(a)(2) and when.
What information from the above ?les the Government has disclosed to the Defense;
What ?les the Government has reviewed and found no discoverable information;
What ?les the Government has decided not to disclose to the Defense;
What ?les the Government has identi?ed that have yet to be searched for Brady/RCM
701(a)(6) and/or RCM 701(a)(2).

1-n

0 0 22565

6. By 25 July 2012, the Government will provide a timeline and synopsis of the inquiries and
communications between the Government and ONCIX.

7. The ?ling by the Government will be ex parte to the Court. The Government will identify
what classi?ed ?lings have not been identi?ed to the Defense.

8. The Court will not suspend the proceedings pending the Government response. The case
calendar will continue into July and August with scheduled motions that are not impacted by
receipt of defense discovery. At the July 2012 Article 39(a) session, the case calendar will be
revised to re?ect Article 39(a) sessions after August at the 6 week schedule re?ected in the
current scheduling order.

9. The Court will grant a reasonable continuance to the Defense upon receipt of compelled
discovery to prepare their case.

The Defense Motion for Due Diligence Filing is GRANTED in part as set forth above.



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

So ORDERED: this 25th day of June 2012.

22566

Appellate Exhibit 178
7 pages
classified
"SECRET"
ordered sealed for Reason 2
Military Judge's Seal Order
dated 20 August 2013
stored in the classified
supplement to the original
Record of Trial

22567

Appellate Exhihitl78
Enclosurel
7^ pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

22568

Appellate Exhihitl78
Enclosure2
l^pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

22569

Appellate Exhihitl78
Enclosures
8pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

22570

Appellate Exhihitl78
Enclosures
22 pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

22571

Appellate Exhihitl78
Enclosures
l^pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

22572

Appellate Exhibit 178,
Enclosure 6
has been entered into
the record as
Prosecution Exhibit 63

22573

Appellate Exhibitl78,
Enclosures
has been entered into
the record as
Prosecution Exhibit 6^

22574

Appellate Exhihitl78
Enclosures
3pagesandlC^
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

22575

Appellate Exhibitl78,
Enclosures
has been entered into
the record as
Prosecution Exhibit 1^^

22576

Appellate Exhihitl78
EnclosurelO
3pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

22577

Appellate Exhihitl7^
Ipage
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

22578

UNITED STATESOF AMERICA

Manning, Bradley E.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
Fort Myer,Virginia 22211

DEFENSE UPDATEDCASE
CALENDAR

DATED: 27June2012

1. The Court is currently scheduling Article 39(a)sessions with the following default schedule at
the request ofthe parties: two weeks for parties to file motions; two weeks for parties to file
responses; five days for parties to file replies(although replies are not necessary for Phaser); and
one week for the Court to review all pleadings before the start ofthe 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)
d. Pretrial Motions (27 July 2012 - 8 August 2012)
e. Phase 3a. Evidentiary Issues (22 June 2012 - 20 July 2012)
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(C) Reply: 11 July 2012
(D) Article 39(a): 16-20 July 2012
(1) Government Initial Witness List
(A) Filing: 22 June 2012
(2) Proposed Members Instructions for All Charged Offenses
(3) Witness Lists for Article 13
(A) Defense Witness Lists: 6 July 2012
(B) Govemment Objections (if any): 10 July 2012
(C) Defense Motion to Compel (if any): 13 July 2012
(4) Preliminary Determinations on Admissibility'
(5) Defense Motion to Dismiss All Charged Offenses under 18 U.S.C. 1030(a)(1) #2
' The Government plans on moving to pre-admit evidence that has MRE 902(11) attestations.

22579

(6) Maximum Punishment for Lesser Included Offenses
(7) Government Motion for Substitutions under MRE 505(g)(2) for FBI Impact
Statement
(8) Government Motion for Modification of Court Order: Government Motion:
Protective Order(s) dated 24 April 2012
(9) Proposed Questionnaires
(A) Filing: 6 July 2012
(B) Response: 11 July 2012
(C) Reply: N/A
(10) Defense 505(h)(3) Notice for Charged Documents
(A) Filing: 6 July 2012
(B) Response: 11 July 2012
(C) Reply: N/A
(11) Disclosure of Any Records from the Department of State and for those Records
that Exist; Government filing of a Supplemental Response to Defense's Motions to Compel
Discovery #2
(A) Filing: 9 July 2012^
(12) Defense Motion to Compel Discovery #2 (Department of State Material)^
(A) Filing: 7 June 2012
(B) Response: 9 July 2012
(C) Reply: 11 July 2012
(13) Defense Motion to Compel Discovery #2 (FBI Investigative File and Impact
Statement)"
(14) Government will review the ONCIX Damage Assessment by 13 July 2012 and
Notify the Court Whether the Government Anticipates ONCIX Will Seek Limited
Disclosure lAW MRE 505(g)(2) or Claim a Privilege lAW MRE 505(c)
(A) Filing: 20 July 2012

^ The Govemment will indicate whether it will seek limited disclosure lAW MRE 505(g)(2) or claim a privilege lAW
MRE 505(c).
' See Appellate Exhibit CXLII.
" In compliance with the Court's Order, the Govemment will immediately begin the process of producing the FBI
investigative file and impact statement lAW RCM 703(f)(4)(A). The Govemment will comply with the 20 July 2012
(notice of limited disclosure or claim of privilege), 25 July 2012 (notice of in camera proceeding), and 3 August 2012
filing dates for the FBI investigative file and impact statement.

22580

(1^) ^notification to the Court Whether the Government Anticipates any Government
Entity that is Subject ofDefense Motion to Compel ^2 Will Seek Limited Disclosure lAW
MRE505(g)(2)orClaimaPriyilegelAWMRE505(c)
(A) Filing: 20 July 2012
(16) notification to theCourtWhethertheGoyernmentAnticipatesanyGovernment
Entity for RCM 701(a)(6)/^^^^ Information and/or RCM 701(a)(2) Material to the
Preparation of the Defense Information that is ^ot Subject to Defense'sMotions to Compel
Discovery ^ l o r ^ 2 , Will SeekLimited Disclosure lAWMRE 505(g)(2) or ClaimaPrivilege
IAWMRE505(c)
(A) Filing: 20 July 2012
(17) IfAnyReleyantAgencyClaimsaPriyilege(lncludingO^CIX)I^nderMRE
505(c), and Government Seeks an ^^C^^^^^ Proceeding under MRE 505(i), Government
Will Move foran In Camera Proceeding IAWMRE505(i)(2)and (3) and Provide l^otice to
Defense IAWMRE505(i)(4)(A).
(A) Filing: 2^ July 2012
(18) Government's Due Diligence Statement to the Court
(A) Filing: 2^ July 2012
Phase4. MiniArticle39(a) Session (27 July 2012 8August2012)
(A) Filing: 27 July 2012
(B) Response: 3August2012
(C) Article 39(a):10August2012(Ifneeded)
(1) I^pdated Proposed Case Calendar
g. Phase4.PretrialMotions(27July2012 31 August2012)
(A) Filing:3August2012
(B) Response: 17August2012
(C) Reply: 22 August2012
(O) Article 39(a): 27-31August2012
(1) Article 13
(A) Filing: 27 July 2012^
(2) Motions
motions to preclude)

^^^^^^ (Government 404(b) motion and additional Government

(3) Motions to Suppress

^ The Oefense agreed to the filing date ofone week earlier to give the t.^nited states the necessary time to respond.

22581

(4) ForallFiles underthe Possession, Custody,orControlofMilitary Authorities
WhereaPrivilege under MRE 505(c) is ^ot Claimed, the Government Will Immediately
Disclose to the Defense, or Submit them to the Court for an ^^C^^^^^ Review under RCM
701(g) or for Limited Disclosure under MRE 505(g)(2). This Includes the Documents
CollectedBasedI^ponthel7April2012IIODAMemorandum.^
(A)Filing:3August2012
(^) ForallFBI/DSSFileswhereaPrivilege under MRE 505(c) is ^otClaimed, the
Government Will Immediately Disclose to the Defense, or Submit them to the Court for an
^C^^^B^^ Review under RCM 701(g) or for Limited Disclosure under MRE 505(g)(2).
(A) Fi1ing:3August2012
(6) ForallDOSFileswhereaPriyilegeunderMRE505(c)is^otClaimed,the
Government WillImmediatelyDisclosetotheDefense,orSubmitthem to theCourtforan
^C^^^B^^ Review under RCM 701(g) orfor Limited Disclosure under MRE 505(g)(2).
(A)Filing:3August2012
(7) For all ^B^^^ Information Subject to Defense'sMotionst^ Compel Discovery ^1
and ^2, whereaPrivilege under MRE 505(c) is ^ot Claimed, the Government Will
Immediately Disclose to the Defense, or Submit them to the Court for an^C^^^^^ Review
underRCM701(g)orforLimited Disclosure under MRE 505(g)(2).
(A) Filing:3August2012
(8) ForallRCM701(a)(6)/^^^^ Information and/or RCM 701(a)(2) Material to the
Preparation of the Defense Information that is ^ot Subject to Defense'sMotions to Compel
Discovery ^1 or ^2,whereaPrivilege under MRE 505(c) is l^ot Claimed, the Government
Willlmmediately Discloseto the Defense,orSubmitthem to theCourtforan^^ C^^^B^^
Review under RCM 701(g) orfor Limited Disclosure under MRE 505(g)(2).
(A)Filing:3August2012
(9) For the O^CIX Damage AssessmentwhereaPrivilege under MRE 505(c) is ^ot
Claimed, the Government Will Immediately Disclose to the Defense, or Submit it to the
Court for an^C^^^B^^ Review under RCM 701(g) or for Limited Disclosure under MRE
505(g)(2)
(A)Fi1ing:3August2012
(10) Government Shall Disclose AllEvidence that it will Introduce on the Merits and
During Sentencing.
(A)Filing:3August2012
(11) WitnessListsforSpeedy Trial
^ This refers to documents involving investigation, damage assessment or mitigation measures as well as all
documents ^^^^^^those that involve investigation, damage assessment or mitigation measures, that are material to the
preparation of the defense and in the possession, custody and control of military authorities(e.g.OA,OIA,OI^A,
5Gt^TI^CGM,CE^TCGM,C^ERCGM,I^^OA)

22582

(A) defense Witness Lists: 3August2012
(B) Covemment Objections (if any):17August 2012
(C) Delense motion to Compel (ifany): 22 August 2012
(12) Defense 505(h)(3) notice for Damage Assessments and Other Classified
Information Provided on3August 2012^
(A) Filing: 17August2012
(B) Response: 22 August 2012
(C) Reply: ^ / A
(13) Requests forJudicial notice
(14) Defense Production of Government Reciprocal Discovery Request
(A)Date:27August2012
Phase5.Mini-Article39(a) (7 September2012 19 September 2012)
(A) Filing: 7Septemher2012
(B) Response: 14Septemher2012
(C) Article 39(a): 19Septemher2012(Ifneeded)
(1) l^pdated Proposed Case Calendar
(2) Government Motion to Compel Discovery (if any)
(A) Filing:7September2012
(B) Response: 14Septemher2012
i.

Phase5. PretrialMotions(7 September2012
(A) Filing: 14Septemher2012
(B) Response: 28 September 2012
(C) Reply:^Octoher2012
(D) Article39(a):1^19October2012

190ctober2012)

(1) SpeedyTrial, including Article 10
(A)Filing:7Septemher2012^
(2) Production of Compelled Discovery for Government Motion to Compel Discovery
(ifany)
(A) Date: 17Septemher2012
^ This notice is for all material that the Government produced by3August 2012 to the defense. Ifthe Govemment
proposes summaries that are not acceptable to the Court, and additional time is needed, the defense will filea
supplemental 505(h)(3)notice seven days after receiving the Court approved summaries under M.R.E.505(g)(2).
^ The defense agreed to the filing date ofone week earlier to give the t.^nited states the necessary time to respond.

22583

(3) DefenseWitnessList
(A) Filing: 21 September 2012
(B) Covemment Objection to Defense Witnesses: 28 September 2012
(C) motion to Compel Production: 3October2012
(D) Response:8October2012
(4) Defense notice of its Intent to Offer the Defense of Alibi, Innocent Ingestion, or
Lack ofMentalResponsibilitylAWRCM 701(b)(2)
(^) Defense l^otice of Accused'sForum Selection and notice ofPleasinWriting
(A) Fi1ing:7September2012
(6) Government Supplemental Witness List^
(A) Filing: 10October2012
(7) Litigation ConcerningMRE505(h)and MRE 505(i)
(A) Filing:7September2012
(B) Response: 14September2012

i

Phase6PretrialMotions(3October2012
(A) Filing:3October2012
(B) Response: 17October2012
(C) Article 39(a): 2^-26 0ctober 2012

26October2012)

(1) PreOualifyGovernmentExperts
(2) Pre Oualify Defense Experts
(3) ^^^^^^^ Hearing for All Classified Information
(4) Voir Dire Questions, Flyer,Findings/Sentence Worksheet, All CMCOs
(A)FilingforCourtReview: 10October2012

^ The Ignited states stated that it will submitasupplemental witness list based solely on any rulingsfi^omthe
Govemment Motion to Compel Oiscovery and any disclosures by the I^efenseafterthe21 September 2012witness
list due date. Thus, the Govemment'sfiling on 22 June 2012 should representagood faith listing of the
Govemment'switnesses for the merits and sentencing phases absent any compelled discovery from the Oefense or
disclosures by the f^efense after submission ofthe Oefense'switness list. Accordingly,any witness added should
clearly be based upon the Oefense's^itnessEist, defense disclosures, or Court Rulings.

22584

Trial by Members (1 November 2012 - 20 November 2012)
(A) Voir Dire: 1-2 November 2012
(B) Trial: 5 - 20 November 2012

DAVID E. COOMBS
Civilian Defense Counsel

22585

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REQUESTED
WITNESSES: ARTICLE 13
MOTION

V.

E., PFC

Headquarters an ea quarters Company, U.S.

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

DATED: 3 July 2012



I. On behalfof PFC Bradley E. Manning, his civilian counsel, David E. Coombs requests the
attendance ofthe following witnesses for purpose ofhis Article 13 motion:

a) CAPT William J. Hocter, Fort Belvoir,

CAPT Hocter will be out ofthe office until at least 10 July 2012. He will testify that
neither the Quantico Brig Commander, CW4 James Averhart, nor the Security Battalion
Commander, Col. Robert Oltman, gave him any reasons for maintaining the Prevention
of Injury (POI) precautions other than stating it was for PFC Manning?s safety. He will
testify that Col. Oltman intimated that he was receiving instruction from a higher
authority on the matter, but did not say who was providing this direction. Capt. Hocter
will testify that he knew that the higher base authorities had frequent (sometimes weekly)
meetings to discuss PFC Manning. Capt. Hocter will testify that he gave weekly status
reports stating that he felt the POI precautions were unnecessary. Capt. Hocter will
testify that he recalls a meeting with Col. Oltman where Col. Oltman stated that PFC
Manning would remain in his current status Maximum Custody and POI status unless and
until he received instructions from higher authority to the contrary. Capt. Hocter cannot
recall Col. Oltman?s exact words, but he does recall that Col. Oltman saying something to
the effect of?l will not have anything happen to Manning on my watch. So, nothing is
going to change in his custody status. He won?t be able to hurt himself and he won?t be
able to get away, and our way of making sure ofthat is that is he will remain on
Maximum Custody and P01 inde?nitely.? Capt. Hocter will testify that he expressed
concerned to Col. Oltman because he did not feel there was a behavioral health reason for
the POI. In response, he will testify that Col. Oltman said ?We will do whatever we want
to do. You make a recommendation and then I have to make a decision based upon
everything else.? He will also testify that Col. Olman made it clear that nothing would
change with PFC Manning regardless of his behavior or the recommendations of
behavioral health.

b) COL Rick Malone, Chief, Walter Reed Forensic Service,

He will be out ofthe
office until the end ofJuly. He will testify that the Quantico Brig instituted more
precautions than he would from a perspective. He will testify that he
consistently recommended to the Quantico Brig to remove PFC Manning from POI

APPELLATE




(181)

d)

status. He will testify that if PFC Manning were not in custody, he would have
recommended routine outpatient care for him. He will testify that it has long been known
that restriction of environmental and social stimulation has a negative effect on mental
function. He will testify that PFC Manning's restrictive confinement was not necessary
from a perspective, and that he made repeated recommendations that the PFC
Manning?s status should be downgraded.

CAPT Kevin D. Moore, Walter Reed National Military Medical Center,
former Defense expert provided by the Government). He

will testify that during a meeting in early January of 201 l, the Security Battalion
Commander in charge of the Quantico Brig, Col. Robert Oltman, clearly stated to the
Brig Staff that will not have anything happen to Manning on my So, nothing
is going to He won?t be able to hurt himself and he won?t be able to get away,
and our way of making sure ofthat is that is he will remain on Maximum Custody and
POI indefinitely.? He will testify that one ofthe other Brig Capt. William
Hocter then said ?You know Sir, I am concerned because if you are going to do that,
maybe you want to call it something else because it is not based upon anything from
behavioral health.? In response, Capt. Moore will testify that Col. Oltman said ?We will
do whatever we want to do. You make a recommendation and then I have to make a
decision based upon everything else.? Capt. Moore will testify that Capt. Hocter then
said, ?Well then don?t say it is based upon mental health. You can say it is Maximum
Custody, and just don?t put that we [behavioral health] are somehow involved in

this.? Col. Oltman replied, ?Well, that is what we are going to do.? Capt. Moore will
testify that a Command Judge Advocate was present during the meeting, but did not
intercede to say that Col. Oltman was in the wrong. Capt. Moore will also testify that he
spoke with others at the Brig to see if they knew why the Brig was so heavy handed on
PFC Manning. He will testify that others at the Brig told him that they have never seen
anything like this before. Capt. Moore will testify that others told him that they were
afraid to speak out about the situation given the concern of what would happen to them as
a result ofany complaint about PFC Manning?s treatment.

Col. Robert G. Oltman, Security Battalion Commander,

Col. Oltman will be out ofthe office until 3 August 2012. He will
testify concerning PFC Manning con?nement conditions and his Maximum Custody and
status. He can also testify regarding any outside in?uence concerning the custody
status of PFC Manning.

LCDR David Moulton, Former Associate Program Director, National Capital Consortium
Residency Program, Walter Reed National Military Medical Center. LCDR
Moulton has now left active duty and is in the reserves. He can be reached at University
Institute, 50] Chipeta Way, Salt Lake City, Utah,

. He will testify concerning the effects of
solitary confinement on the well-being of those subjected to it, and PFC
Manning specifically. He will testify that isolation or solitary confinement is among the
most harmful conditions that can be imposed upon a detainee. He will also testify how
PFC Manning was held in restrictive solitary confinement for nearly a year without any

22586

0 22587

or behavioral justification. Finally, he will testify how these conditions likely
placed PFC Manning at an increased risk ofexacerbating any existing
or condition.

0 LTC Dawn Hilton, Commander, Fort Leavenworth Joint Regional Correctional Facility,
. She will testify that once PFC Manning

was transferred to the JRCF on 19 April 201 l, he spent nine days in the normal
indoctrination process. A?er completing the indoctrination process, PFC Manning was
held in medium custody will all privileges ofa normal pretrial detainee. She will testify
that PFC Manning was not placed upon any POI status given the fact there was no
or behavioral health basis for such a status. Since being held in that medium
custody status, PFC Manning has not engaged in any self-hann behavior, engaged in any
assaultive behavior towards the guards, or made any attempt to escape from custody.

g) Mr. Juan M?ndez, U.N. Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Visiting Professor, Washington College of Law,
4801 Massachusetts Ave., NW, Washington, DC 20016

. Mr. M?ndez will testify about his communications with the
U.S. Government regarding the confinement conditions of PFC Manning. He will testify
that he was told the confinement conditions were imposed on account of the seriousness
ofthe offenses. He will also testify that the U.S. Government informed him that PFC
Manning was not being held in ?solitary confinement? but was being held in ?prevention
of hann watch? but would not offer any details about what harm was being prevented by
such a status. He will also testify regarding his efforts to meet with PFC Manning for an
unmonitored conversation. Despite his numerous requests, he will testify that he was
informed that his conversation would be monitored. Mr. M?ndez will testify that the U.S.
Government?s refusal to allow unmonitored conversations with PFC Manning violate
international nonns and U.N. requirements. Due to the U.S. Government?s refusal to
allow unmonitored conversations, Mr. M?ndez had to decline the opportunity to meet
with PFC Manning.

h) PFC Bradley Manning, Headquarters and Headquarters Company, U.S. Army Garrison,
Joint Base Myer-Henderson Hall, Fort Myer, VA 222] 1. He will testify for the limited
purposes ofthe motion under M.R.E. l04(d) and M.R.E. 304(f). PFC Manning will
testify concerning his nine months of unlawful pretrial punishment that he endured while
at Quantico.

2. The Defense also requests that the Government produce the following physical pieces of
evidence under R.C.M. 703(t)(4)(A) for purposes of the motion:

a) The Quantico issued suicide prevention smock;
b) the Quantico issued suicide prevention blanket; and

c) the Quantico issued suicide prevention bed that was issued to PFC Manning while at
the Quantico Con?nement Facility.

0 0 22588

3. The Defense reserves the right to supplement this witness list should it be necessary to do so.
Ifthe Defense submits any additional request for witnesses, it will do so in a timely manner.

Respectfully submitted,




DAVID EDWARD COOMBS
Civilian Defense Counsel



0 22589

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES .
DEFENSE RESPONSE TO
GOVERNMENT MOTION FOR
AUTHORIZATION OF A
SUBSTITUTION FOR FBI
IMPACT STATEMENT
MANNING, Bradley E., PFC

US. Army, 2

Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

DATED: 6 July 2012



RELIEF REQUESTED

l. The Defense requests that this Court ?nd that the FBI Impact Statement is material to the
preparation of the defense and Order that it be produced to the Defense under RCM 703(f).
Alternatively, the Defense requests that the Court deny any proposed substitutions where,
considering the mindset of Defense counsel (including the questions referenced herein), the
Court concludes that the classified information 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, CXVI, CXLVI, and CXLVII for the purposes ofthis
motion.
FACTS

3. The FBI has not claimed a privilege under MRE 505(c). Therefore, the damage assessment
being considered by the Court is governed by Brady/R.C.M. 701(a)(6), R.C.M. 703(f), and
M.R.E. 505(g)(2).

4. The Court has found that the FBI is ?closely aligned" with the Government in this case.
Appellate Exhibit p. 1.

r>age_l_

APPEILATE BIT I

uaz)

0 0 22590

ARGUMENT.
A. The In Camera Standard

5. The Government?s non-ex parte ?ling requests the Court to approve of its redacted
information within the original FBI impact statement. The government maintains that ?the

information contained within the original report, which is redacted, does not meet the RCM

702(a)(6) or Brady/Giglio standards and therefore is not discoverable, nor it is material to the
preparation of the defense or relevant and necessary for production under RCM
Government In Camera Motion for Authorization of a Substitution of the FBI Impact Statement
under MRE 505(g)(2), p. 2.

6. In the case at hand, the FBI is an agency that participated in ajoint investigation in this case.
The Government has a due diligence duty to search for discoverable information under Brady
and RCM 701. The Government must search not only its own ?les but (1) the ?les of law
enforcement authorities that have participated in the investigation of the subject matter of the
charged offenses; (2) investigative ?les in a related case maintained by an entity closely aligned
with the prosecution, and (3) other ?les as designated in a defense discovery request that
involved a speci?ed type of information within a speci?ed entity. Brady v. Maryland, 373 U.S.
83 (1963); RCM 701.

7. As the Court noted, RCM 701 and RCM 703 work together ?when production of evidence not
in the control of military authorities is relevant and necessary for discovery.? Appellate Exhibit
p. 9, citing United States v. Graner, 69 M.J. 104 (C.A.A.F. 2010). Under RCM 703(f),
the burden is on the Defense to show the production of evidence outside the control of military
authorities is relevant and necessary. RCM 703(f). ?Evidence that is material to the preparation
of the defense under the control of other government agencies can be relevant and necessary for
discovery, requiring production of the evidence from the other government entities pursuant to
RCM 703(f)(l) and Appellate Exhibit CXLVII, p. 5. The Court determined that it
would ?review the FBI Impact Statement in camera to determine whether it is material to the
preparation of the defense to the extent relevant and necessary to require production for
disclosure." Appellate Exhibit CXLVII, p. 6.

8. As previously stated, ?material to the preparation of the defense? is not a dif?cult standard to

Satisfy. In 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 R.C.M.

In reviewing AE in camera, the military judge said that he examined the
records and AE contained ?everything . . . [he] thought was even remotely
potentially helpful to the defense.? That would be a fair trial standard, but our
examination ?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 ofArticle 46, UCMJ, is satis?ed.

See also UnitedStates v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004) (?The defense had a right to
this information because it was relevant to SA M?s credibility and was therefore material to the
preparation of the defense for purposes of the Government?s obligation to disclose under R.C.M.
added); United States v. Adens, 56 M.J. 724, 733 (A.C.C.A.
respectfully disagree with our sister court?s narrow interpretation that the tenn
?material to the preparation ofthe defense? in R.C.M. 70l(a)(2)(A) and (B) is limited to
exculpatory evidence under the Braajz 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
speci?cally intended to provide ?for broader discovery than is required in Federal practice?
(R.C.M. 701 Analysis, at A2l?32), and unquestionably is intended to implement an independent
statutory right to discovery under Article 46, United States v. Webb, 66 M.J. 89, 92
(C.A.A.F. 2008) ?[U]pon request of the defense, the trial counsel must pennit 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



9. Thus, if the Court determines the infonnation from the FBI lmpact Statement is material to
the preparation of the Defense, then it is relevant and necessary to require production under
RCM 703(f). So, the first step in the Court?s analysis must be whether the FBI lmpact Statement
contains Brady and whether it contains information that is material to the preparation of the
defense as in ?helpful? to the preparation of the defense so as to require its production under
RCM 703(f).

B. The Proposed Substitution

10. Once the Court has determined what information in the FBI Impact Statement would qualify
as being either Brady or material to the preparation to the Defense, then the Court must examine
the proposed substitution with a view to detennining whether the classi?ed 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), aff?d 35 M.J. 396 (C.M.A. 1992).

11. Limited disclosure and substitutes under MRE 505(g)(2) include:

a) Deletion of speci?c items of classi?ed information from documents to be made available
to an accused;
b) Substitution of a portion or summary of the information for such documents; and
c) Substitution of a statement admitting relevant facts.

All of these are permitted unless thejudge detennines that the classi?ed information itself is
necessary to enable the accused to prepare for trial. See M.R.E.

I MRE 505(g)(2) provides as follows: ?Limited disclosure. The militaryjudge, upon motion ofthe Government,
shall authorize (A) the deletion ofspeci?ed items of classi?ed information from documents to be made available to

3



22591

0 0 22592

12. Thus, the Government is authorized under M.R.E. 505(g)(2) to substitute a summary ofthe
information contained in a classi?ed document rather than the classi?ed document. The rule
itself recognizes, however, that the Court may recognize that ?disclosure of the classi?ed
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, I34 F.3d 1121 (D.C. Cir. 1998)(holding that a trial court considering
substitutions of course, err on the side of protecting the interests of the defendant?).

13. In making the determination as to whether the classi?ed information is ?necessary to enable
the accused to prepare for trial,? the Defense requests that this Court consider the following
factors adopted by the Court in Appellate Exhibit CXLVI:

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 classi?ed 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? A

i) Does the Government intend to use any of the information from the damage assessments?
Is so, is this infomiation 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 classi?ed
portions of the documents to put the Government?s evidence in proper context?

j) Does the original classi?ed evidence present a more compelling sentencing case than the
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 classi?ed evidence necessary to help the Defense in formulating defense
strategy and making important litigation decisions in the case?

the defendant, (B) the substitution of a portion or summary of the information for such classi?ed documents, or (C)
the substitution of a statement admitting relevant facts that the classi?ed information would tend to prove, unless the
military judge determines that disclosure of the classi?ed 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

0 0

n) Is it unfair that the Government had access to the unclassi?ed version of the damage
assessment and the Defense did not? Does that provide a tactical advantage to the

Government?

CONCLUSION

14. Accordingly, the Defense requests that this Court ?nd that the FBI Impact Statement is

material to the preparation of the defense and Order that it be produced to the Defense under
RCM 703(f). Alternatively, the Defense requests that the Court deny 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 submittedDAVID E. COOMBS
Civilian Defense Counsel

22594

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITEDSTATES

DEFENSE RESPONSE TO
v. GOVERNMENT MOTION

FOR MODIFICATION OF
MANNING, Bradley E., PFC PROTECTIVE ORDER
U.S. Army,
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 6 July 2012
Fort Myer, VA 2221 I

RELIEF SOUGHT

l. The Defense requests that this Court deny the Government's motion for modi?cation of the
current protective order to the extent that the Government submits that the Defense should now
be permitted to redact and post ?lings unilaterally. The Defense will voluntarily agree to redact
an individual?sjob title or position ifthat individual is not a party to the trial and only one
individual holds thatjob title or position.


2. The Defense would request the Court to consider the following Attachments:

Attachment A: 23 March 2012 Email from MAJ Fein to the Court;

Attachment B: 2 April 2012 Email from MAJ Fein to the Court;

Attachment C: 2 April 2012 Email from the Court to MAJ Fein;

Attachment D: 29 March 2012 Email from Mr. Coombs to MAJ Fein;

Attachment E: 29 March 2012 Email from MAJ Fein to Mr. Coombs;

Attachment F: 5 April 2012 Email from MAJ Fein to Mr. Coombs;

Attachment G: 16 April 2012 Email from MAJ Fein to Mr. Coombs;

Attachment H: 14 March 2012 Email from Mr. Coombs to MAJ Fein; and
Attachment I: 30 May 2012 Email Exchange between Mr. Coombs and MAJ Fein.

333333833

FACTS

3. When the Defense first noti?ed the Court that it intended to publish its motions on the
internet, the Government strenuously opposed. On 23 March 2012, MAJ Fein sent the following
email to the Court:

U83.)
Page ol?PI?e(S)

0 0 22595

Ma?am,

The United States opposes the defense?s request to freely publish all motions,
responses, and replies on the Internet. The defense?s request would act to
publicize infonnation provided to the defense in discovery, the public disclosure
of which may require outside agency approval and the substance of which may
cause irreparable prejudice to the United States. Much of the information in this
case was disclosed under various protective orders which remain in effect,
including grand jury subpoena information, Secretary of the Anny l5-6
investigation information, and law enforcement sensitive information. This
protected information was provided to the defense for discovery and under the
speci?c condition not to publish or release it outside ofthe speci?c individuals
who were allowed access to the infonnation.

The defense purports that it wants to publish this information online to keep the
public informed of the proceeding. The public, however, is already well informed
of the proceedings. The public was present at the Article 32 hearing, the
arraignment, and the first motions hearing, and will continue to be present at all
open portions of the motions hearings and the trial. The command provided the
theater next door for overflow area so that the public can freely watch the
proceedings and the media operations center for the media. Additionally, other
than the electronic ?ling process, the military justice system is more open than the
federal system from the Article 32 proceedings through the end of the trial.

The United States does not intend to publish its pleadings online. Ifthe defense
remains intent on publishing all pleadings and their enclosures online, the United
States requests the opportunity to ?le a motion for a protective order or multiple
protective orders under RCM 70l(g)(2) and 806(d) for the Court to regulate the
defense's use of information gained through discovery. Additionally the United
States requests the Court allow the prosecution thirty days to receive input from
all the different federal entities on what information they provided for discovery
which they did not intend to be made publically available. The sole purpose of
discovery is to prepare for trial. Motions are ?led to shape legal issues and belong
to the Court. Most motions, motions to suppress or exclude evidence or
testimony, are not appropriate for publication. Freely publicizing all pleadings, at
this stage ofthe proceedings, may undermine the effectiveness ofthe publicity
order and will circumvent those measures adopted to regulate what is available to
the public and signi?cantly jeopardize ?many interests of the United States, to
include, protecting classi?ed information (in the case of a spillage), preserving the
con?dentiality of law enforcement information, preventing potential witnesses
from receiving information outside the scope of their projected testimony,
protecting testifying witnesses, protecting trial participant safety, protecting the
personal information of potential panel members, preventing disclosure of
government infonnation that threatens national security and is unclassi?ed, and
the deliberative processes of the United States Government. Furthennore, the
United States believes that the defense's intended course of action would result in

0 0 22596

a substantial likelihood of materially prejudicing the proceeding, in violation of,
inter alia, and Army Regulation 27-26, speci?cally Rule 3.6.

See Attachment A.

4. Prior to a ?nal protective order being in place, the Defense published a synopsis ofthe
upcoming motions arguments on Mr. Coombs? blog. The blog contained a general description of
the types of issues that would be litigated. MAJ Fein objected to the Defense?s blog post and on
2 April 2012 wrote to the Court:

Ma?am,

Good morning. Could you please clarify a portion of your interim order
(Government Request for Leave to File Protective Order(s))? It was the
government's understanding that we would have an opportunity to redact and/or
object to the defense posting the Defense ?lings or proposed ?lings before the
defense posts the information to the internet. Although the defense has not posted
its actual ?lings or proposed ?lings, the defense has posted information that
speaks directly to the substance of its proposed ?lings: the redacted motions
are not available, the following will provide a general understanding of what
Defense motions are being addressed on April 24th through The entire
posting is attached for your reference.

It is the government's understanding that the defense?s posting of a summary of its
motions violates the Court's interim order in that the government did not have the
opportunity to object to this information prior to its posting. Although we have
not had an opportunity to check with the different equity holders, there does not
appear to be any information that we would otherwise protect in THIS posting.
This action seems to be an attempt by the defense to bypass the procedures that
the Court ordered. The prosecution?s ultimate concern is that the defense is
picking and choosing what it thinks is appropriate for disclosure, which does not
allow the United States to review the material. It is the government?s duty to
protect individuals and information, ensure the integrity of the process and a fair
trial, which includes protecting overly prejudicial information, as well as
unclassi?ed but protected and classi?ed information.

Could you please provide clari?cation on what the defense is authorized to post
and whether the government will have the opportunity to review the information
prior to posting?

See Attachment B.
5. The Court dismissed MAJ Fein?s concerns, stating ?The intent of the interim order was to

ensure no information was published outside of court that included information from discovery
via protective order, information subject to privilege under MRE 505 and 506, and P11 to protect



witness/participant privacy and safety. The interim order was not intended to prevent the defense
from publishing their legal theory for upcoming motions.? See Attachment C.

6. Prior to beginning its redactions, the Defense emailed the Government to get the
Government?s position on what infonnation needed to be redacted. The Defense wrote on 29
March 2012:

I am in the process ofconducting my redactions. I would like to get the
Government?s position on whether you would have any objection to the
following:

a) Quoting statements by Government counsel during arguments;

b) Quoting from Government Pleadings;

c) Quoting emails from the Government to the Court and/or the Defense; and
d) Quoting Court Rulings.

See Attachment D.

7. The Government responded, ?The government has no objection to a and below because
those are matters of public record, so long as they are accurate. Depending on what is written in
and c, the government might have an objection.? The Government provided no further
elaboration on this statement. See Attachment E.

8. On 5 April 2012, MAJ Fein wrote to the Defense (copying the Court) and stated:

In order to make this process more efficient, the United States recommends that
you submit the documents to us with see-through redaction boxes (or colored
highlights) so all parties can read the information behind the redaction and the
documents can be more easily reviewed by the prosecution and any relevant
federal entity. After our review, we will return the document with proposed
redaction boxes (or colored highlights). For this first round, we will recreate your
redactions on a clean document with redaction boxes, so the process can continue
moving forward quickly and efficiently.

See Attachment F. The Defense complied with the Government?s request and has since
highlighted all proposed redactions in yellow to facilitate the review by the Government.
Because many of the motions are purely legal, they have not required any redactions.

9. Since April 2012, the Defense has made redactions in utmost good faith and has in fact

redacted more than it considers necessary so as to avoid any litigation over the issue. The
Government has not once expressed any concerns with the Defense?s redactions.

ARGUMENT

0 0 22598

10. The Defense does not understand how the Government can go from its position in April
2012 (?The defense?s request would act to publicize information provided to the defense in
discovery, the substance ofwhich may cause irreparable prejudice to the United States.?) to
its position today (?The prosecution requests that the Court allow the defense to publish
subsequent court ?lings or proposed ?lings upon certifying with the Court that such ?lings do
not contain any unredacted protected information?).

1 1. In early April, the Government was concerned about the parade of horribles that would
befall the proceeding and the United States if the Defense were to publish its motions publicly:

Freely publicizing all pleadings, at this stage of the proceedings, may undermine
the effectiveness of the publicity order and will circumvent those measures
adopted to regulate what is available to the public and signi?cantly jeopardize
many interests of the United States, to include, protecting classi?ed infonnation
(in the case of a spillage), preserving the con?dentiality of law enforcement
information, preventing potential witnesses from receiving information outside
the scope of their projected testimony, protecting testifying witnesses, protecting
trial participant safety, protecting the personal information of potential panel
members, preventing disclosure of government information that threatens national
security and is unclassi?ed, and the deliberative processes of the United States
Government. Furthermore, the United States believes that the defense?s intended
course of action would result in a substantial likelihood of materially prejudicing
the proceeding.

See Attachment A. In fact, the Government was so concerned about all these bad things
happening that it requested thirty days to review a given Defense ?ling. Id. Apparently,
the Government is not concerned about any of these things anymore and is prepared to
risk ?irreparable prejudice to the United States? and ?materially prejudicing the
proceeding? simply because the process of reviewing the redactions has gotten ?overly
burdensome.? See Appellate Exhibit at p. 3.

12. In April 2012, MAJ Fein stated that ?It is the government ?s duty to protect individuals and
information, ensure the integrity of the process and a fair trial, which includes protecting overly
prejudicial information, as well as unclassi?ed but protected and classi?ed infomiation.? See
Attachment B. Apparently, the Government is prepared to abdicate that duty because it?s just
too hard on them.

13. Prior to addressing the substance ofthe Govemment?s motion, the Defense submits that the
current motion shows the hypocrisy of the Government?s litigation positions in this case. The
Government often makes arguments, undermining the
Govemment?s credibility in the eyes of the Court and the public at large. For instance, the
Government argued that the Defense should have to prepare all of its motions (classi?ed and
unclassi?ed) from a trailer on Fort Meade any other order would compromise national security
and cause grave danger to the United States. This latest motion showsjust how much credence
the Court should give to these types of arguments.

0 0 22599

14. First and foremost, the Government?s position simply does not make sense. The
Government states that it is required to ?coordinate the approval? of Defense ?lings with various
equity holders. See Appellate Exhibit p. 2 (?Since the applicable Court Order on 24
April 2012, the defense has submitted ?lings outside the schedule detailed by the existing case
calendar, requiring the prosecution and the proper agencies, without notice, to coordinate the
approval of such unexpected ?lings?; ?Given the number of agencies involved, reviewing the
defense filings requires the prosecution to identify the referenced agencies, submit such ?lings to
those agencies, and coordinate with the proper representatives for approval or necessary
redactions?). However, the Government is prepared to cede responsibility for the motions and
allow the Defense to review/redact/?le motions on its own. This obviously means that it is not
necessary to have equity-holders approval in order to review and publish the motions. In other
words, if the Government is now prepared to allow the Defense to post its motions unilaterally,
then the Government is undertaking a wholly unnecessary process in getting approvals from
various agencies. It is hard to believe that the Government does not see the fatal flaw in its own
argument it is asking the Court to relieve it from an obligation (consulting with equity holders
and getting approvals) that it does not actually have. If agency approval is not necessary, why
can?t a team of ?ve Government lawyers review a document, which they have to read anyway,
and make the determination on their own as to whether anything contained therein is
problematic?

15. The Government?s excuse for no longer wanting to be subject to the protective order that it
requested is that the process has become ?overly burdensome.? See Appellate Exhibit
p. 3. The Government says that ?[f]or the prosecution, such a requirement disrupts its
preparation for upcoming Article 39(a) sessions and its continued effort to ensure the accused
receives a fair and speedy trial.? Id. The Defense submits that with a prosecution team the size
of a starting football lineup, the Government should be able to keep on track of redactions
(conveniently highlighted in yellow) and prepare for argument and ensure the accused gets a fair
trial.

16. The Government then complains that the process is ?overly burdensome [for] the United
States Government as a whole.? Id. The Government already tried a variation of this argument
with respect to producing a witness from the Department of State; the Court did not buy it then,
nor should it buy it now.?

l7. What is troublesome is the Government?s next sentence. The Government states, ?[i]or the
United States Government organizations and agencies, such a requirement disrupts on-going
operations and ultimately stalls its support to the court-martial process relating to pretrial and
trial matters, including obtaining information and requisite approvals in discovery.? See
Appellate Exhibit at p. 3 (emphasis added). To the Defense, this looks like a not-so-
veiled threat: If you make us continue with reviewing redactions, we will slow down your
discovery.

18. This is not the first time the Government has resorted to subtle threats. When the Court
ordered the Government to review the hard drives of the computers for certain speci?ed
programs, the Government decided at the last-minute it would rather turn over the hard drives

The Court?s reaction to this over-the-top argument was, ?lt?s one witness, MAJ Fein."

6

0 0 22600

than produce to the Defense the results of the forensic searches ordered by the Court. The
Defense opposed and asked the Government to produce the forensic searches as per the Court?s
timeline, as well as the computer hard drives. MAJ Fein implied that ifthe Defense did not agree
to waive the forensic results, it would take much longer for the Defense to get access to the hard-
drives. In this respect, MAJ Fein stated:

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 classi?cation 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 ?les.

See Attachment G. Thus, it appears that, much like the computers, the Government is using the
threat of delay in order to achieve its intended result.

19. Once one gets past the silly ?this isjust too hard for us? argument, one is left to wonder why
the Government would want to allow the Defense the ability to post motions on its own, without
any review or input from the Government. After all, the Government did say ?The prosecution?s
ultimate concern is that the defense is picking and choosing what it thinks is appropriate for
disclosure, which does not allow the United States to review the material.? See Attachment B.
The answer is obvious: the Government is waiting for a ?gotcha? moment, where it can claim
that the Defense has violated a protective order and caused grave and irreparable damage to the
United States.

20. The Defense believes that the Government is setting the Defense up for another ?spillage?
incident, much like the one in March 2012.2 Although this was never addressed on the record,
the Defense believes that a spillage did not occur and that the Government misrepresented to the
Court that an OCA had determined that a spillage occurred. See Attachment (?Ijust got off
the phone with CPT Fein. I called him to clarify whether there was a new claim of possible
spillage. CPT Fein told me that there was not. His email simply referred to the claimed spillage
from several weeks ago and possible issue he raised yesterday. Although not in his email, CPT

2 To refresh the Court?s memory, this is the incident where the Government submitted that the Defense had
committed a spillage by inference. The Defense?s motion did not contain any classi?ed information. A separate
attachment to the Defense?s motion did not contain any classified information. However, the Government
maintained that by reading these two separate documents together, one could infer classified information.

7

0 22601

Fein represented to me that the OCA concluded the latest incident constituted spillage. have
asked CPT Fein to provide copies of any emails to the Defense and the Court that he sent to the
OCA and received from the OCA regarding this issue. He did not indicate that he would provide
the correspondence, or any portion thereof. The clear proof that a spillage did not occur is
the fact that no remediation measures were ever taken after the alleged spillage. If indeed a
spillage did occur, it was incumbent on the Government to take remediation measures. As such,
the Defense submits that the Government misrepresented that a spillage had occurred in order to
make the Defense look like it could not be trusted.

21. The risk that the Defense will post a motion that contains something that the Government
deems objectionable is very real. This is evidenced by the Government complaining to the Court
about the Defense?s posting of a wholly innocuous description of what motions were to be
argued at the upcoming motions argument. See Attachment (?It is the govemment?s
understanding that the defense?s posting of a summary of its motions violates the Court?s interim
order in that the government did not have the opportunity to object to this information prior to its
posting. Although we have not had an opportunity to check with the different equity holders,
there does not appear to be any information that we would otherwise protect in THIS posting.
This action seems to be an attempt by the defense to bypass the procedures that the Court
orderedf?). So even though the Government did not have any actual concerns with
posting, it felt the need to tattle on the Defense.3

22. Moreover, the Government held the Defense to unreasonable standards with respect to the
Court?s protective order. The Government maintained that the Defense had to provide specific
notice of its intent to publish individual motions; a blanket notice that the Defense would publish
every motion that it ?led was not enough. The following email exchange between the parties
occurred on 30 May 2012 in respect of a motion that the Defense apparently did not give the
Government specific notice of:

MAJ Fein: The defense never provided us notice that it intends to publish the
Defense?s response to the Government's motion for proposed LIOs.

Mr. Coombs: Read the Court?s order. That is not required. You also have a 1
June deadline for the Defense replies.

MAJ Fein: Please see Appellate Exhibit LXVII, paragraph 1 under for
the notice provision.

Mr. Coombs: We will publish every substantive motion that that is on the case
calendar, as we have in the past. I think it goes without saying but the Defense
intends to publish its reply motions ?led yesterday.

MAJ Fein: We will start processing this request. In the past, you have provided
us notice through your email ?lings with the Court and we rely on those, pursuant

3 The Government had a similar ?over the top" response when the Defense offered a redacted copy of the Grand
Jury testimony into evidence. The Government complained that the Defense was waiving protected information
around and that the information had to be under seal.

0 0 22602

to the Court?s order to know which ?lings will go. Please continue providing us
the notice the Court's order. What other ?lings would you like us to
process?

Mr. Coombs: You are only behind on the Defense Response to the L10 motion.
As stated, all replies will be ?led publically Under the Court?s order, you
have until 1 June to ?le a request for a protective order.

MAJ Fein: Thank you. As stated before, we are not behind any motion reviews.
The defense is required to ?notify the Government of each Defense Court ?ling or
proposed ?ling intended for public release.? Please continue to provide us notice
of each ?ling or we will not process it. Without the af?rmative noti?cation, we
cannot have certainty that the defense intends to make each one public, nor
whether the defense intends to redact any motions. Please address any concerns
with the Court?s order with the militaryjudge. We will start processing the
Response to the Government?s LIO Motion immediately and will get a response
with the replies which were ?led yesterday.

See Attachment 1.

23. The Defense does not believe that the Court?s order requires the Defense to speci?cally
provide notice of each and every motion it intends to ?le publicly, given that it has already stated
that it will ?le every motion publicly. The bigger point here is that the Government continually
adopts unreasonable litigation positions and the Defense expects to see this behavior continue
if the Defense permitted to ?le motions publicly without the Government?s input.

24. Aside from the Court?s Protective Order, the Defense has had no guidance from the
Government on what may or may not be objectionable. To date, the Defense has over-redacted
its ?lings simply because it does not feel like getting into an irrational debate with the
Government over the redactions. However, the Defense still does not know what information
(aside from infonnation subject to a protective order) the Government might suddenly deem
problematic. Consequently, the Defense does not want to risk the near-certain fate that will
result if the Defense ?les a motion without the Government?s blessing: the infamous ?gotcha?
moment. This is of particular concern since the Protective Order still does not specify the
circumstances under which the Government might decide to report Defense counsel to their state
bar association.

25. The Government?s ?nal request is that the Court ?order the defense to redact an individual?s
job title or position, ifthat individual is not a party to the trial and only one individual holds that
job title or position.? The Defense does not object to this. However, with so much in the public
domain already and the individuals being referred to by title and name in open court, the request
appears to be pointless. Moreover, the proffered reason for the redaction ?to protect the safety
of potential witnesses? seems far-fetched to say the least. Nonetheless, the Defense will
endeavor to comply with the Government?s request.

0 0 22603

CONCLUSION

26. Since the Court?s Protective Order has been in place, there have not been any subsequent
claims of spillage or violations ofthe Court?s Protective Order by the Government. The motions
practice is almost completed. The Government would seek to fix what is not broken at this
point. For the reasons stated above, the Defense respectfully requests that this Court deny the
Govemment?s motion.

Respectfully submitted,

2/



DAVID EDWARD COOMBS
Civilian Defense Counsel

ATTACHMENT A



David Coombs



From: Fein, Ashden MAJ USA

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

To: Lind, Denise COL USARMY (US)

Cc: David Coombs; Matthew kemkes; Bouchard, Paul CPT USARMY Santiago, Melissa
CW2 USARMY Morrow JoDean, CPT USA Overgaard,
Angel M. CPT USA Whyte, Jeffrey H. CPT USA
Ford, Arthur 0. USA Prather,
Jay CIV Williams, Patricia CIV SJA

Subject: Defense's Release of Court Filings

Ma?am,

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

The defense purports that it wants to publish this information online to keep the public informed of the proceeding. The
public, however, is already well informed of the proceedings. The public was present at the Article 32 hearing, the
arraignment, and the ?rst motions hearing, and will continue to be present at all open portions of the motions hearings
and the trial. The command provided the theater next door for overflow area so that the public can freely watch the
proceedings and the media operations center for the media. Additionally, other than the electronic filing process, the
military justice system is more open than the federal system from the Article 32 proceedings through the end of the
trial.

The United States does not intend to publish its pleadings online. If the defense remains intent on publishing all
pleadings and their enclosures online, the United States requests the opportunity to file a motion for a protective order
or multiple protective orders under RCM 701(g)(2) and 806(d) for the Court to regulate the defense's use of information
gained through discovery. Additionally the United States requests the Court allow the prosecution thirty days to receive
input from all the different federal entities on what information they provided for discovery which they did not intend to
be made publically available. The sole purpose of discovery is to prepare for trial. Motions are ?led to shape legal issues
and belong to the Court. Most motions, motions to suppress or exclude evidence or testimony, are not appropriate
for publication. Freely publicizing all pleadings, at this stage of the proceedings, may undermine the effectiveness of
the publicity order and will circumvent those measures adopted to regulate what is available to the public and
significantly jeopardize many interests of the United States, to include, protecting classified information (in the case of a
spillage), preserving the confidentiality of law enforcement information, preventing potential witnesses from receiving
information outside the scope of their projected testimony, protecting testifying witnesses, protecting trial participant
safety, protecting the personal information of potential panel members, preventing disclosure of government
information that threatens national security and is unclassi?ed, and the deliberative processes of the United States
Government. Furthermore, the United States believes that the defense's intended course of action would result in a
substantial likelihood of materially prejudicing the proceeding, in violation of, inter alia, RCM 806(d) and Army
Regulation 27-26, specifically Rule 3.6.

v/r
MAJ Fein

ATTACHMENT

22606



David Coombs

From: Fein, Ashden MAJ USA SJA

Sent: Monday, April 02. 2012 10:08 AM

To: - Lind, Denise COL USARMY (US)

Cc: David Coombs; Kemkes, Matthewl MAJ USARMY Bouchard, Paul CPT USARMY
Santiago, Melissa CW2 USARMY Morrow JoDean, CPT USA JFHQ-
Overgaard, Angel M. CPT USA Whyte. Jeffrey H.
CPT USA Ford, Arthur D. CW2 USA Prather,
Jay CIV Williams, Patricia CIV SJA

Subject: Interim Order Clari?cation

Attachments: Blog Printout.pdf

Ma'am,

Good morning. Could you please clarify a portion of your interim order (Government Request for Leave to File
Protective Orderlsl)? It was the government's understanding that we would have an opportunity to redact and/or
object to the defense posting the Defense ?lings or proposed ?lings before the defense posts the information to the
internet. Although the defense has not posted its actual ?lings or proposed ?lings, the defense has posted information
that speaks directly to the substance of its proposed ?lings:

the redacted motions are not available, the following will provide a general understanding of what Defense motions
are being addressed on April 24th through The entire posting is attached for your reference.

It is the government's understanding that the defense's posting of a summary of its motions violates the Court's interim
order in that the government did not have the opportunity to object to this information prior to its posting.

Although we have not had an opportunity to check with the different equity holders, there does not appear to be any
information that we would otherwise protect in THIS posting. This action seems to be an attempt by the defense to
bypass the procedures that the Court ordered. The prosecution's ultimate concern is that the defense is picking and
choosing what it thinks is appropriate for disclosure, which does not allow the United States to review the material. It is
the government's duty to protect individuals and information, ensure the integrity of the process and a fair trial, which
includes protecting overly prejudicial information, as well as unclassified but protected and classified information.

Could you please provide clarification on what the defense is authorized to post and whether the government will have
the opportunity to review the information prior to posting?

Thank you.

v/r
MAJ Fein





ATTACHMENT



David Coombs



From: Lind, Denise COL USARMY (us)

Sent: Monday, April 02, 2012 1:50 PM

To: Fein, Ashden MAJ USARMY (US)

Cc: . David Coombs; Kemkes, MatthewJ MAJ USARMY Bouchard, Paul CPT USARMY
Santiago, Melissa CW2 USARMY Morrow Ill, JoDean, CPT USA JFHQ-
Overgaard, Angel CPT USARMY Whyte, Jeffrey CPT USARMY
Ford. Arthur Jr CW2 USARMY Prather, Jay CIV Williams, Patricia A
CIV (US)

Subject: RE: Interim Order Clarification

Signed By: denise.lind@us.army.mil

Counsel,

The intent of the interim order was to ensure no information was published
outside of court that included information from discovery via protective
order, information subject to privilege under MRE 505 and S06, and PII to
protect witness/participant privacy and safety. The interim order was not
intended to prevent the defense from publishing their legal theory for
upcoming motions.

If the government identifies particular publishings by the defense the
government believes warrants a more broad protective order, the government
may raise the issue at the next article 39(a) session, or, if necessary,

request a telephonic RCM 802 conference with the Court.



Denise R. Lind
COL, JA
Chief Judge, 15': Judicial Circuit

Message-??
From: Fein, Mhden MAJ USA SJA

Sent: Monday, April 02, 2012 10:08 AM

To: Lind, Denise COL USARMY (US)

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

Subject: Interim Order Clarification

Ma'am,

Good morning. Could you please clarify a portion of your interim order

1



ATTACHMENT



0 0 22611

-?-Original Message--?-

From: David Coombs

Sent: Thursday, March 29, 2012 7:09 PM

To: Fein, Ashden MAJ USA SJA

Cc: 'Prather, Jay CIV 'Kemkes, Matthew] MAJ USARMY 'Bouchard, Paul CPT USARMY
?Joshua Tooman'; ?Santiago, Melissa CW2 USARMY Morrow JoDean, CPT USA
Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA JFHQ-
Ford, Arthur 0. CW2 USA SJA

Subject: Redactions

Ashden,

I am in the process of conducting my redactions. I would like to get the Government's position on
whether you would have any objection to the
following:

a) Quoting statements by Government counsel during arguments;

b) Quoting from Government Pleadings;

c) Quoting emails from the Government to the Court and/or the Defense; and
d) Quoting Court Rulings.

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


rtialdefen?g.com

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

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



ATTACHMENT

From:

.Deto:
To:
Cc:

David.

22613

?Fain. Ashden MAJ USA JFHO-NCRIMDW

Mar 29. 2012 8:5 pm

?David Coombs'
"Kemkes. Matthew MAJ USARMY
CPT USARMY











ssa CW2 USARMY

Ill, JoDean, CPT USA JFHQ-NCRIMDW
"Overgaard. Angel M. CPT USA
"Whyte. Jeffrey H. CPT USA JFHQ-NCRIMDW
ord. Arthur D. CVV2 USA JFHQ-NCRIMDW

The government has no objection to a and below because those are matters of
public record. so long as they are accurate. Depending on what is written in
and c. the government might have an objection.

v/r
Aahden

ATTACHMENT



22615

--?Original Message-?-?

From: Fein, Ashden MAJ USA SJA

Sent: Thursday, April 05, 2012 2:25 PM

To: David Coombs; Lind, Denise COL MIL USA OTJAG

Cc: Kemkes, Matthew] MAJ USARMY Bouchard, Paul CPT USARMY Santiago, Melissa CW2
USARMY Morrow Ill, JoDean, CPT USA Overgaard, Angel M. CPT USA
Whyte, Jeffrey H. CPT USA Ford, Arthur D. CW2 USA JFHQ-
Prather, Jay CIV Williams, Patricia

Subject: RE: Redactions

Mr. Coorn bs,

We are still working on reviewing these documents. Right away we noticed that none of the
information is actually redacted, but rather have black highlights, so anyone can copy and paste the
information from behind the black boxes. Additionally individual email addresses within the document
can still be "clicked" to send an email to the redacted individuals.

In order to make this process more efficient, the United States recommends that you submit the
documents to us with see-through redaction boxes (or colored highlights) so all parties can read the
information behind the redaction and the documents can be more easily reviewed by the prosecution
and any relevant federal entity. After our review, we will return the document with proposed redaction
boxes (or colored highlights). For this ?rst round, we will recreate your redactions on a clean document
with redaction boxes, so the process can continue moving forward quickly and ef?ciently.

Thank you.

v/r
MAJ Fein

ATTACHMENT

. . 22617

From: ?Fain. Ashden MAJ USA JFHQ-NCRIMDW {M_d_2?_Pmt?g_

Date: Mon. Apr 16. 2012 5:31 pm
To: ?David Coombs" maHebnw.wm>
Cc:











USA JFHO-NCRIMDW e. Jeffrey H. CPT
USA Itch. Alexander S. 1 LT
USA "Ford. Arthur D. CW2
USA

David.

As for the forensic drives. CID wil 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 oornputer experts. government classi?cation 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 analysislprocedure it
wishes with complete copies of the drives.

We can wait until after 20 April 2012. however it will take more time after
thatto getthose drives fully reviewed for security classification purposes.

than merely the liienames. if the defense ultimately wants the forensic

motion) sooner than later, the United States recommends the defense support
this way forward. so we can divert CID resources from continuing to search
fortheseprograms and havingto
ontheactual?les. Wears

oonlident 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 eaqalain that I will provide
you answer; by C08 today. for your questions you asked on Friday.


Ashden

ATTACHMENT

0 22619

From: rm il fn . m>A asPr nedsender
Datn: Wed. Mar 14, 2012 9:08 pm

To: ?Fein, Ashden CPT USA JFHQ-NCRIMDW
Denise COL MIL USA
?Matthew kemkes"

"Lind,









"Bouchard. Paul CPT USARMY
Jefferson, Dashawn MSG MIL USA

ow Jo an.
?Overgaard. Angel M. CPT USA
"Whyte, Jeffrey H. CPT USA
ord. Arthur 0. CW2 USA JFHQ-NCRIMDW

Cc:

Ma'am,

[just got off the phone with PT Fein. I called him to clarify whether there was a new claim of
possible spillage. CPT Fein told me that there was not. His email simply referred to the
claimed spillage from several weeks ago and possible issue he raised yesterday.

Although not in his email. CPT Fein represented to me that the OCA concluded the latest
incident constituted spillage. I have asked PT Fein to be provide copies of any emails to the
Defense and the Court that he sent to the OCA and received from the OC A regarding this
issue. He did not indicate that he would provide the correspondence, or any portion

thereof. He advised that he would take the issue up with you tomorrow.

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 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 prohibited.**"



ATTACHMENT I

0 0 22621

David Coombs

From: Fein, Ashden USA sm

Sent: Wednesday, May 30, 2012 11:05 AM

To: - David Coombs; Overgaard, Angel M. CPT USA Morrow
JoDean, CPT USA Whyte, Jeffrey H. CPT USA
von Elten, Alexander S. CPT USA SJA

Cc: Huriey, Thomas MAJ USARMY Tooman, Joshua CPT USARMY (US)

Subject: RE: Motion for Protective Order on Defense Response Motion

David,

We will have an answer by 1 Jun. Thank you.

v/r
Ashden

-?-Original

From: David Coombs

Sent: Wednesday, May 30, 2012 10:41 AM

To: Fein, Ashden MAJ Overgaard, Angel M. CPT USA Morrow Ill, JoDean,
CPT USA Whyte, Jeffrey H. CPT USA Von Elten, Alexander S. CPT USA JFHQ-
SJA

Cc: Hurley, Thomas MAJ USARMY 'Tooman, Joshua CPT USARMY

Subject: RE: Motion for Protective Order on Defense Response Motion

Ashden,

The Government has until 1 June to ?le any requested protective order on the replies. If you need until 1 June for the
Defense Response to the Government's LIO motion, that is not a problem.

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 con?dential attorney-cllent
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

I

0 0 22622

Message--?--

From: Fein, Ashden MAJ SM

Sent: Wednesday, May 30, 2012 10:31 AM

To: David Coombs; Overgaard, Angel M. CPT USA Morrow Ill, JoDean, CPT USA
Whyte, Jeffrey H. CPT USA von Elten, Alexander S. CPT USA SJA

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY (US)

Subject: RE: Motion for Protective Order on Defense Response Motion

David,

Thank you. As stated before, we are not behind any motion reviews. The defense is required to "notify the Government
of each Defense Court ?ling or proposed ?ling intended for public release." Please continue to provide us notice of each
filing or we will not process it. Without the affirmative notification, we cannot have certainty that the defense intends to
make each one public, nor whether the defense intends to redact any motions. Please address any concerns with the
Court's order with the military judge.

we will start processing the Response to the Government's LIO Motion immediately and will get a response with the
replies which were ?led
yesterday.

v/
Ashden

Message-~?

From: David Coombs

Sent: Wednesday, May 30, 2012 10:11 AM

To: Fein, Ashden MAJ Overgaard, Angel M. CPT USA Morrow ill, JoDean,

CPT USA Whyte, Jeffrey H. CPT USA von Elten, Alexander S. CPT USA

SIA
Cc: Hurley, Thomas MAJ USARMY 'Tooman, Joshua CPT USARMY
Subject: RE: Motion for Protective Order on Defense Response Motion

Ashden,

You are only behind on the Defense Response to the U0 motion. As stated, all replies will be filed publically. Under the
Court's order, you have until 1 June to file a request for a protective order.

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, 8317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508)689-9282



0 0 22623

""Con?dentiality Notice: This transmission, including attachments, may contain confidential 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 prohibited."?

--?0riginal Message--?

From: Feln, Ashden mu SJA
Sent: Wednesday, May 30, 2012 10:08 AM
To: David Coombs; Overgaard, Angel M. CPT USA Morrow ill, JoDean, CPT USA

Whyte, Jeffrey H. CPT USA von Elten, Alexander S. CPT USA SJA
Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY (US)
Subject: RE: Motion for Protective Order on Defense Response Motion

David,

We will start processing this request. in the past, you have provided us notice through your email ?lings with the Court
and we rely on those, pursuant to the Court's order to know which filings will go. Please continue providing us the
notice IAW the Court's order. What other ?lings would you like us to process?

v/r
Ashden

Message--?

From: David Coombs

Sent: Wednesday, May 30, 2012 10:06 AM

To: Fein, Ashden MAJ USA Overgaard, Angel M. CPT USA Morrow Ill, JoDean,
CPT USA Whyte, Jeffrey H. CPT USA DW von Elten, Alexander S. CPT USA JFHQ-


Cc: Hurley, Thomas MAJ USARMY ?Tooman, Joshua CPT USARMY

Subject: RE: Motion for Protective Order on Defense Response Motion

Ashden,

We will publish every substantive motion that that is on the case calendar, as we have in the past. I think it goes without
saying but the Defense intends to publish its reply motions filed yesterday.

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





""'Confidentiality 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 prohibited.??

?-Original

From: Fein, Ashden MAJ an

Sent: Wednesday, May 30, 2012 10:02 AM

?To: David Coombs; Overgaard, Angel M. CPT USA Morrow JoDean, CPT USA

Whyte, Jeffrey H. CPT USA von Elten, Alexander S. CPT USA SJA
Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY (US)
Subject: RE: Motion for Protective Order on Defense Response Motion

David,
Please see Appellate Exhibit LXVII, paragraph 1 under for the notice provision.

v/r
Ashden

-?Original Message--?

From: David Coombs

Sent: Wednesday, May 30, 2012 10:00 AM

To: Fein, Ashden MAJ Overgaard, Angel M. CPT USA Morrow Ill, JoDean,
CPT USA Whyte, Jeffrey H. CPT USA von Elten, Alexander S. CPT USA JFHQ-
SJA

Cc: Hurley, Thomas MAJ USARMY ?Tooman, Joshua CPT USARMY

Subject: RE: Motion for Protective Order on Defense Response Motion

Ashden,

Read the Court?; order. That is not required. You also have a 1 June deadline for the Defense replies.

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-8004588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



"?Confldentiality 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 prohibited!?

4

0 22625

Message-?

From: Fein, Ashden USA SJA

Sent: Wednesday, May 30, 2012 9:58 AM

To: David Coombs; Overgaard, Angel M. CPT USA Morrow Ill, JoDean, CPT USA
whyte, Jeffrey H. CPT USA von Elten, Alexander S. CPT USA SJA

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY (US)

Subject: RE: Motion for Protective Order on Defense Response Motion

David,

The defense never provided us notice that it intends to publish the Defense's response to the Government's motion for
proposed Llos.

V/r
Ashden



From: David Coombs

Sent: Wednesday, May 30, 2012 9:48 AM

To: Feln, Ashden MAJ USA Overgaard. Angel M. CPT USA DW Morrow Ill, JoDean,
CPT USA DW Whyte, Jeffrey H. CPT USA Von Elten, Alexander S. CPT USA
SJA

Cc: Hurley, Thomas MAI USARMY 'Tooman, Joshua] CPT USARMY

Subject: Motion for Protective Order on Defense Response Motion

Ashden,

The Government did not file a motion for a protective order concerning the Defense's Response LIO Motion by the ?ling
date for replies as required by the Court's order. Does this mean that you have no objection or requested redactions?

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



0 0 22626






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 infomiation may be unlawful and is

. . 22627

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE RESPONSE TO
v. GOVERNMENT MOTION FOR

ADMISSION OF EVIDENCE
MANNING. Bradley E., PFC UNDER M.R.E. 803(6)
U.S. Army,
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 6 July 20l 2
Fort Myer, VA 222ll

RELIEF SOUGHT

I. PFC Bradley E. Manning, by and through counsel, moves this court to deny the
Govemment?s motion in part.'

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party, the Government has the burden of persuasion. R.C.M. 905(c)(2). The
burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(

FACTS

3. PFC Manning is charged with five specifications of violating a lawful general regulation, one
specification of aiding the enemy, one specification of disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight specifications ofcommunicating
classified information, ?ve 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 I34, Uniform Code ofMilitary Justice (UCMJ)
I0 U.S.C. 892, 904, 934 (2010).

4. The original charges were preferred on 5 July 2010. Those charges were dismissed by the
convening authority on I8 March 20l l. The current charges were preferred on 1 March 201 1.
On 16 December through 22 December 20] l, these charges were investigated by an Article 32
Investigating Officer. The charges were referred on 3 February 2012.

The Defense does not oppose the admissibility offinclosurcs the
motion for Preliminary Ruling on Admissibility ofl-Evidence dated 22 June 20l2. The Defense does oppose
admission ofEnclosurcs ofthe same Government motion.

APPELLATE EXHIBIT 134?)
Page__L_ or new

0 0 22628



5. The Defense does not request any witnesses be produced for this motion.

LEGAL AUTHORITY AND ARGUMENT

6. The Defense objects to the admission of Enclosures the
Government?s motion for Preliminary Ruling on Admissibility of Evidence dated 22 June 2012
because they are testimonial hearsay falling outside the scope of M.R.Es 803(6) and 902(11).

7. M.R.E. 803(6) establishes an exception to the general rule against hearsay where records are
kept in the course of ?regularly conducted business activity, -and if it was the regular practice of
that business activity to make the memorandum, report, record, or data compilation, all as shown
by the testimony of the custodian or other quali?ed witness, or be certification that complies with
M.R.E.

8. Despite this exception to the prohibition against hearsay, a business record must also satisfy
the 6th Amendment?s Confrontation Clause. The Court in Crawford v. Washington established
that where testimonial hearsay is at issue, the Confrontation Clause is only satisfied if the
accused is afforded an opportunity for cross-examination. 541 U.S. 36, 59 (2004). The
Crawford Court defined testimonial hearsay further as ?statements that were made under
circumstances which would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.? Id. at 51.

9. ruling in US. v. Rankin, 64 M.J. 348 (2007), is instructive on what amounts to
testimonial hearsay in the military context. There, the court established a three-part test for
identifying testimonial hearsay:

(1) was the statement at issue elicited by or made in response to
law enforcement or prosecutorial inquiry; (2) did the statement
involve more than a routine and objective cataloging of
unambiguous factual matters; and (3) was the primary purpose for
making, or eliciting, the statement the production of evidence with
an toward trial.

Id. at 352.

10. The C.A.A.F. in U.S. v. Harcrow, applied the Rankin factors when considering whether
laboratory reports created upon request by the county sheriff were testimonial. 66 M.J. 154
(2008). In considering the Confrontation Clause issue, the court noted, ?[h]ere the laboratory
tests were specifically requested by law enforcement and the information relayed on the
laboratory reports pertained to items seized during the arrest of an identified ?suspect.?? Id. at
159. The court further held, ?lab results or other types of routine records may become
testimonial where a defendant is already under investigation, and where the testing is initiated by
the prosecution to discoverincriminating evidence.? Id. (quoting US. v. Magyari, 63 M.J. 123
(2006)).

. . 22629

1 1. Similarly, the Coast Guard Court of Criminal Appeals applied the Rankin Factors in
determining whether statements in a cover memorandum were testimonial. US. v. Byrne, 70
M.J. 611 (201 1). In Byrne, the court found the Confrontation Clause had been violated when a
?Laboratory Document Packet? regarding an alleged positive urinalysis was admitted over
defense objection. In weighing the Rankin factors the Court noted, ?we ?nd the statements in the
cover memorandum were made in response to a request for a litigation packet, which clearly
indicates that a court?martial is being contemplated, and, thus, the memorandum was prepared in
response to a prosecutorial inquiry.? Id. at 614.

12. In the case at hand, the Government seeks to introduce several enclosures that are
testimonial in nature. Specifically, enclosures 8, 9, and 10 to the Government?s motion dated 22
June fall outside the scope of 803(6) and 902(1 1) because they were made in preparation for
trial. Because they were made in preparation for trial, they are testimonial in nature and,
pursuant to Rankin and the 6th Amendment, should not be admitted at this time.

a. Enclosure 8 is a pair of screen shots allegedly showing the dates PFC Manning
completed IA training and his user profile for the Army Training and Certification
Tracking System. These documents are not admissible because they were produced in
preparation for trial. Enclosure 1 1, an Agent Investigative Report (AIR) written by SA
Troy M. Bettencourt on 21 January 201 1, clearly demonstrates that Enclosure 8 was
produced at the behest of law enforcement. It is safe to assume that Mr. John Sciandra
did not email SA Bettencourt out of the blue with screenshots related to PFC Manning.
Rather, he must have been replying to a Government inquiry. Moreover, the date of the
AIR, 21 January 201 1, falls after preferral of charges and serves as a clear
indication that the records were produced with an towards litigation. When
considering these facts in light of Rankin and _its progeny, it is clear that Enclosure 8 does
not qualify for admission under 803(6) and 902(l 1).

b. Enclosure 9 is a screenshot of PFC Manning?s U.S. Army Information Assurance
Virtual Training profile. Like Enclosure 8, this document was clearly produced at the
behest of the Government with an towards litigation, as it is also referenced in the
AIR by SA Bettencourt. Because such facts weight both the first and third Rankin factors
in PFC Manning?s favor, this document should not be admitted under 803(6) and
902(11). To do so would violate PFC Manning?s right to confrontation under the 6th
Amendment.

c. As mentioned, Enclosure 10 is an AIR from SA Bettencourt. This document was
clearly prepared in preparation for litigation and, thus, qualifies as testimonial under the
Rankin factors. Moreover, it lacks the requisite attestation under M.R.E. 803(6) and
902(1 1). As such, the Government?s motion should be denied.

13. Enclosures II also falls outside the scope of 803(6) and 902(11) because it, too, was made in
preparation for trial. Enclosure 11 is a Joint Asset Movement Management System (JAMMS)
report allegedly pertaining to PFC Manning. The date on both the report and attestation
certi?cate is 15 February 2012, which is after both preferral and referral of the charges against

. . 22630

PFC Manning. It is unlikely that Ms. Mary Amatu, the signatory of the attestation certi?cate,
woke up on the morning of 15 February 2012, decided to pull PFC Manning?s records and then
signed a certi?cate attesting that the records meet the requirements of the Military Rules of
Evidence. Rather, it is more likely that Ms. Amatu created the record at the behest of the Trial
Counsel in this case. Like the reports discussed in Harcrow, Enclosure 1 is a report that was
created upon a speci?c request by the Government, relates to an individual who is facing a court-
martial and is offered to prove an element of one ofthe alleged crimes. Harcrow at 159; see also
Magyari. Because Enclosure 1 was created upon request by the Government, relates to PFC
Manning and is offered to prove an element ofone or more of PFC Manning?s alleged crimes,
the document is testimonial in nature. As testimonial hearsay, Enclosure 1 I should not be
admitted at this time, lest PFC Manning?s right to confrontation be violated.

14. Finally, Enclosures 12 and 13 should also not be admitted because they do not comport with
the attestation requirement of MRE 803(6). Enclosure I2 is an AIR scribed by SA Hyung Kim,
while Enclosure 13 is a one page synopsis of the Distributed Common Ground System-Army
(DCGS-A) system evidently prepared by General Dynamics. Neither enclosure includes an
attestation certi?cate as contemplated by 902(l 1), nor does the Government?s motion give any
indication that a witness will be called to attest that the ?business records? are maintained in
conformity with MRE 803(6). Moreover, Enclosure I2, SA Kim?s AIR dated 3] August 2010,
was clearly made as part of the investigation into PFC Manning?s alleged misconduct and with
an towards a trial as it is dated post?preferral. It is, thus, testimonial and the Confrontation
Clause demands examination of SA Kim if the Government wishes to admit information
contained within her AIR.

CONCLUSION
15. Based on the above, the Defense requests that the Court deny, in part, the Govemment?s

motion to pre-admit evidence under R.C.M. 902(l 1).

Respectfully submitted,

SHUA J. TOOMAN
CPT, JA

22631

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES


v. DEFENSE NOTICE UNDER

MILITARY RULE OF EVIDENCE
MANNING, Bradley PFC 505(h)(3): CHARGED
U.S. Army, DOCUMENTS
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 6 July 2012
Fort Myer, VA 2221 I

1. The Government previously provided notice to the Defense of the following charged
documents:

a) Batch #1 (0O376954 00377572);
b) Batch #2 (O0377626 00377675); and
c) Batch #3 (00377845 00378140).

2) Pursuant to Military Rule of Evidence 505(h)(3), PFC Manning, by and through counsel,
provides notice to the Government that the Defense intends to present, either through cross-
examination of a Govemment?s witnesses or during the Defense?s presentation, the following
listed evidence from the charged documents:

a) IDNE Afghanistan Significant Activity Reports (SIGACTS). The Defense intends to

discuss the 43 individual SIGACT reports that are the subject of Specification 7 of
Charge 11 either on cross examination or through the testimony of a Defense witness.
The 43 SIGACT reports are labeled as Bates Number 00377846 through 0037791 I.
Speci?cally, the Defense intends to discuss the content of the 43 and the
classi?cation determination regarding the possible impact on national security
from having this infonnation released publicly. Of the 43 SIGACTS that the Defense
intends to discuss, the following 5 were listed in the charged documents, but were not
part ofthe classi?cation review: 00377847-48; 00377857-58; 00377859;
00377872-73; and 00377884-85. The Defense also intends to discuss, in general. the
Afghanistan SIGACT reports that are the subject of Specification 6 of Charge 11. The
CIDNE Afghanistan SIGACTS consisted of91.73l documents covering a period from 1
January 2004 to 31 December 2009.

CIDNE Irag SIGACTS. The Defense intends to discuss the 61 individual SIGACT
reports that are the subject of Specification 5 of Charge II either on cross examination or
through the testimony of a Defense witness. The 61 SIGACT reports are labeled as Bates
Number 00377912 through 00378027. Specifically, the Defense intends to discuss the
content of the 61 SIGACTS, and the classification determination regarding the

APPELLATE 1-mun: 085)


possible impact on national security from having this information released publicly. Of
the 61 SIGACTs that the Defense intends to discuss, the following 8 were listed in the
charged documents, but were not part of the classi?cation review: 00377920;
00377939; 00377950-51; 00377959; 0037981-82; 00377987; 00378014-15; and
00378027. The Defense also intends to discuss, in general, the Iraq SIGACT reports that
are the subject of Speci?cation 4 of Charge 11. The CIDNE Iraq S1GACTs consist of
391,832 documents covering a period from 1 January 2004 to 31 December 2009;

c) Other Brie?ngs, Memorandums, Documents, a Video and accompanying 15-6
Investigation Report. The items referenced are the subject of Speci?cations 10 and 1 of

Charge II. This information contains FRAGO orders, several memorandums, a battle
drill matrix for civilian casualties, rules of engagement memorandums, PowerPoint
presentations, and a four minute surveillance video ofindividuals leaving a building and
then walking along a path. The four minute surveillance video does not depict the
airstrike that took place on 4 May 2009 (commonly referred to as the Granai airstrike)
which resulted anywhere between 80 to 140 civilians being killed. However, the video
was apparently made on the same day as the Granai airstrike. The Defense intends to
discuss the video and each ofthe following items listed within the charged documents
and/or within the classi?cation review at Bates number 00376901 -02 either on
cross examination or through the testimony ofa Defense witness:

i.
ii.

iv.

vi.
vii.


ix.

xi.

xii.



xiv.
xv.

Briefto GEN Finding and Recs: 00377425-428;

Farah Brief FINAL v2 22 May 09: 00377429?53;

Farah Brief FINAL v8 24 May 09: 00377454-79;

Tab A Appendix 10 (USFOR-A FRAGO 08-003 CIVCAS Procedures) Sep 08:
00377480-92;

CENTCOM Positive Identi?cation Policy: 00377493-495 (*apparently not part of
OCA review);

Tab Appendix 7 (8141 Initial TIC Slide) 4 May 09: 00377496-98;

Final Report (OS 20002 JUN 09)(Signed)(minimized)(3): 00378029-65;
Tab A Appendix 1 (CISOTF FRAGO 02 Operational Guidance) 29 Jan 09:
00378066-070;

Tab A Appendix 2 (FRAGO 429-2008 COMISAF TAC DIR) 08 Dec 08:
0037807l?78;

Tab A Appendix 5 (USCENTCOM Tactical Directive OEF AFG) 12 Sep 08:
003 78079-81;

Strategic intel brief, 10 May 2009 ?Farah INS Probably Deliberately Instigated?:
00378082-83;

Tab A Appendix 12 (USCENTCOM consolidated Serial One Rules of
Engagement for Operation Enduring Freedom MOD 002) 15 Dec 06: 00377627-
37;

ORF Support Farah ETT (8141) PowerPoint document May 2009: 00377672-73;
Tab Appendix 6 (8213 QRF CONOP) 4 May 09: 00377674-75; and

BE22 Pax Zip Video: 00378028.



22632

d)

6)

22633

Some of this information also appears to be the subject of Rear Admiral Kevin
Donegan?s classi?cation review at Bates number 00376872-73. Speci?cally, the Defense
intends to discuss the content ofthe above listed items and the classi?cation
review and determinations regarding the possible impact on national security from having
this information released publicly.

Revkiavik-13 Diplomatic Cable at Bates Number 00377392?94. This diplomatic cable
was from the embassy in Reykjavik detailing the ?nancial dif?culties ofa privately
owned Icelandic bank called Landsbanki, which offered online savings accounts under
the ?Icesave? brand. The bank was placed into receivership by the Icelandic Financial
Supervisory Authority on 7 October 2008. The Defense intends to discuss the diplomatic
cable that is the subject of Speci?cation 14 of Charge 11 either on cross examination or
through the testimony of a Defense witness. Speci?cally, the Defense intends to discuss
the content of the Reykjavik-13 cable and the classi?cation determination
regarding the possible impact on national security from having this information released
publicly.

Diplomatic Cable Database. The Defense intends to discuss each of the 125 diplomatic
cables that is the subject of Speci?cation 13 of Charge 11 either on cross examination or
through the testimony of a Defense witness. The 125 diplomatic cables are labeled as
Bates Number 00376954 through 00377424; 00377499 through 00377572; and 00377638
through 00377675. Speci?cally, the Defense intends to discuss the content of the 125
diplomatic cables and the classi?cation determination regarding the possible
impact on national security from having this information released publicly. Ofthe 125
diplomatic cables the Defense intends to discuss, the following 9 were listed in the
charged documents, but were not part of the classi?cation review: 00376960-63;
00377031-32; 00377045-48; 00377099?103; 00377137-40; 00377186-87; 00377366-69;
00377526-29; and 00377654-59. Additionally, the following cable was part ofthe
classi?cation review, but was not part of the charged documents:
07BAGHDAD42. The Defense also intends to discuss the diplomatic cables in general
that are the subject of Speci?cation 12 of Charge II. The contents of these cables
describe international affairs from 300 embassies dating from 1966 to 2010. This
database contains 251,287 documents. Over 130,000 of the documents are unclassi?ed,
some 100,000 are labeled ?con?dential?, about 15,000 documents are classi?ed as
?secret?, and none are classi?ed as ?top secret?.

Apache Helicopter Video Bates Number 00377845. Although this video is not classi?ed,
the Defense provides notice that it intends to discuss the Apache helicopter video that is
the subject of Speci?cation 2 ofCharge 11 either on cross examination or through the
testimony ofa Defense. Speci?cally, the Defense intends to discuss CPT James Kolky?s
classi?cation review and the classi?cation review at 00419522. The Defense intends to
offer evidence from these reviews discussing the lack of impact on national security from
having this information released publicly. The charged video is a thirty-nine minute
Apache cockpit gun?sight video depicting a series of air-to?ground attacks conducted by a
team of two U.S. Army AH-64 Apache helicopters in Al-Amin al-Thaniyah, in the
district ofNew Baghdad in Baghdad. The attacks took place on 12 July 2007. In the

g)

h)

22634

?rst strike, 30mm cannon ?re was directed at a group of nine men; two were war
correspondents for Reuters Saeed Chmagh and Namir Noor~Elden. Eight men were
killed, including Noor-Eldeen. Chmagh was wounded. In the second airstrike, 30mm
cannon ?re was directed at Chmagh and two other unarmed men and their unmarked van
as they were attempting to help Chamgh into the van. Two children inside the van were
wounded, three more men were killed, including Chmagh. In a third airstrike, an Apache
helicopter team ?red three AGM-1 14 Hell?re missiles to destroy a building after they
had observed men enter the building.

U.S. Armv?s Counterintelligence Assessment Bates Number 00378091-122. The
Defense intends to discuss the document that is the subject of Speci?cation 15 of Charge
II either on cross examination or through the testimony of a Defense witness.
Speci?cally, the Defense intends to discuss the content of the document and the
classi?cation determination regarding the lack of impact on national security from having
this information released publicly. The Defense also intends to discuss the review of the
charged document in 00377733-35. The Charged document is a thirty?two page
document prepared by the Cyber Counterintelligence Assessments Branch of the Army?s
Counterintelligence Center along with the National Ground Intelligence Center to assess
the possible threat posed to the U.S. Army by disclosures to WikiLeaks.

The Detainee Assessment Briefs Bates Number 0037812340. The Defense intends to
discuss each of the 22 pages (18 Bates Numbered pages) that is the subject of
Speci?cation 9 of Charge II either on cross examination or through the testimony of a
Defense witness. Speci?cally, the Defense intends to discuss the content of the
documents and the classi?cation determination regarding the impact on national
security from having this information released publicly. The Defense also intends to
discuss, in general, the detainee assessment brief database that are the subject of
Speci?cation 8 of Charge II. This database consists of 779 multi-page memorandums.

Each memorandum contains information about a detainee to include their background;

J)

how they were captured; whether they are regarded as low, medium, or high risk; and
whether they should be released or not.

Government Intelligence Agency Memorandums Bates Number 00378084-90. The
Defense intends to discuss each of the 7 pages that is the subject of Speci?cation 3 of
Charge 11 either on cross examination or through the testimony of a Defense witness.
The Defense also intends to discuss the review of the charged document in 00447841-45.
Speci?cally, the Defense intends to discuss the content of the documents and the
classi?cation determination regarding the impact on national security from having this
information released publicly.

Chat Logs (not within charged documents). The Defense intends to discuss the content
of the computer chat session allegedly had between Mr. Adrian Lamo and PFC Manning
either on cross examination or through the testimony of a Defense witness. The chat log
has no classi?cation markings, but according to one OCA, the chat conversation may
contain classi?ed information. The chat logs were not within the charged documents, but
do appear to be part of the classi?cation review by Vice Admiral Robert Harward. The

0 0 22635

Defense intends to discuss the content of the chat conversation and any
classi?cation determination regarding the impact on national security from having this
information released publicly.

3. Nothing contained in this notice should be construed in any manner as a concession by PFC
Manning or his Defense that the listed items are appropriately classi?ed pursuant to Executive
Order 13256 or that the disclosure of such information would be detrimental to the national

security.

Respectfully submitted,

xx.



C.
- I
.

DAVID EDWARD COOMBS
Civilian Defense Counsel



22636

UNITED STATES OF AMERICA
Prosecution Response
to Defense Motion
for Specific Instructions:
the Specification of Charge I

v.

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

6 July 2012

RELIEF SOUGHT
The Govemment respectfully requests that the Court deny the Defense Motion for
Specific Instructions: the Specification ofCharge 1 (Defense Motion). The Defense's proposed
instruction transfomis the Govemment's burden by requiring it to prove a specific intent to
commit the charged offense, in contravention of the law, statutory text, and this Court's previous
rulings. The Govemment requests that the Court adopt its proposed instructions in ftill and deny
the Defense requested instruction for the specification of Charge I.
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
ybr Cowrty-Morna/ (MCM), United States, RCM 905(c) (2012).
FACTS
1. The Govemment stipulates to the facts in the Defense Motion. See Charge Sheet.
2. Knowledge is a recognized mens rea to provide an evil state of mind. See Appellate
Exhibit LXXXI at 3.
3. Article 104 is a general intent crime. See id.
4. The general intent required by Article 104 is knowledge. See id.
5. Article 104(2) does not require a specific intent or motive to give intelligence to the
enemy. See id.
WITNESSES/EVIDENCE
The Govemment does not request any witnesses be produced for this response. The
Govemment respectfully requests that the Court consider the referenced Appellate Exhibits.

(-•oocxVl C>80
^^PPELLATEEXHIBTT.
Pai^
ofPaje(s)

QOT l$H

22637

LEGAL AUTHORITY AND ARGUMENT
Criminal law distinguishes between an accused acting with knowledge that his conduct
will create certain consequences and an accused acting with the specific purpose to effect those
consequences. See United States v. Bailey, 444 U.S. 394, 404-05 (1980) (discussing differences
of degree or punishment "between a person who knows that another person will be killed as the
result ofhis conduct and a person who acts with the specific purpose of taking another's life")
(citing W. LaFave & A. Scott, Handbook on Criminal Law § 28 at 196-97 (1972) (hereinafter
"LaFave & Scott")). A person acts "knowingly" ifhe is aware "that the result is practically
certain to follow from his conduct, whatever his desire may be as to that result." Bailey, 444
U.S. at 404 (quoting LaFave & Scott at 196) (emphasis added); see Model Penal Code § 2.02(b).
A person acts "purposefully," however, when "he consciously desires that result. . .." Bailey,
444 U.S. at 404. Generally, knowledge corresponds with general intent and purpose corresponds
with specific intent. See id. at 405 (citing LaFave & Scott at 201-02).
The Model Penal Code defines "intentionally" as "purposely," which equates to "with
purpose" or "with design." See Model Penal Code §§ 1.13( 11)-(12), 2.02(2)(a)-(b) (defining
"purposely" as desiring to cause a specific result and "knowingly" as awareness that the conduct
is practically certain to cause a result); see also United States v. Neilson, 471 F.2d 905, 908 (9th
Cir. 1973). Moreover, "knowingly and intentionally" used in conjunction denote specific intent.
See Nielson, 905 F.2d at 908 (affirming instructions describing "knowingly and intentionally" as
a specific intent). Conversely, a "knowingly" standard simply requires awareness that a result is
likely to follow, not a desire to effect that result. See United States v. Springer, 58 M.J. 164, 169
n.2 (C.A.A.F. 2003) (citing ^ofz v. (/M,W&a/e^, 389 U.S. 347, 351 (1967); Model Penal Code §
2.02(2)(a).
I.

ARTICLE 104 REQUIRES KNOWLEDGE AND NOT PURPOSE

The Specification ofCharge 1 (the specification), alleging a violation of Article 104(2),
requires the Govemment to prove that the accused knowingly gave intelligence to the enemy
through indirect means. See Appellate Exhibit LXXXI at 3; Charge Sheet. Under Article 104,
the Govemment must prove that the accused had actual knowledge that he was giving
intelligence to the enemy through indirect means. See MCM pt. IV, 28c(5)(c); United States v.
OLson, 20 C.M.R. 461, 464 (A.B.R. 1955). Actual knowledge constitutes a general intent. See
.Appellate Exhibit LXXXI at 3 ("The general intent required by Article 104 is knowledge.").
Furthermore, actual knowledge constitutes the recognized mens rea to provide an evil state of
mind. See id. The Govemment does not need to prove that the accused intended to give
intelligence to the enemy through indirect means because Article 104 does not require specific
intent. See id.
Actual knowledge simply requires awareness of the charged element. See United Slates
V. Adams, 63 M.J. 223, 226 (C.A.A.F. 2006) (holding that actual knowledge can be satisfied by
subjective awareness of high probability or deliberate ignorance).' Accordingly, the
Govemment need only prove "knowingly" by demonstrating that the accused was aware that the
enemy was practically certain to receive intelligence as a result ofthe charged acts. See Bailey,
' .Article 86 requires actual knowledge. MCM pt. IV, 1| 10c(2).

2

22638

supra: Olson, 20 C.M.R. at 464 (deciding that Article 104 requires a general evil intent). Any
intention, purpose, design, or desire is only required under a specific intent and not under the
general intent required for Article 104." See Bailey; Olson, supra. Thus, the Govemment is not
required to prove that the accused desired the specific result of the enemy's receipt of
intelligence.
H.

THE PROPOSED DEFENSE INSTRUCTION INCORRECTLY REQUIRES
SPECIFIC INTENT

The Defense's proposed instruction requiring the Govemment to prove specific intent is
improper. The Defense uses its request for instructions to raise anew its contention that, as
charged in this case. Article 104 requires the Govemment to prove a specific intent to commit
the offense. See Appellate Exhibit LXIIH 8 (claiming that "no prosecution under Article 104(2)
has been maintained without an allegation that the accused intended to give intelligence to, or
communicate with, the enemy in some way") (emphasis added). For example, the Defense
attempts to increase the standard from a general intent to a specific one by requesting a purpose
standard. See Defense Motion ^ 1 ("That is, the accused must have used the third party for the
purpose ofgiving intelligence to the enemy") (emphasis added); id. at % 7 ("In other words, the
Govemment must prove that the accused used the third party for the purpose of giving
intelligence information to the enemy.") (emphasis added). .Additionally, the Defense attempts
to inject a specific intent standard by requesting an "intentionally" standard. See id.; Defense
Requested Instruction: Article 104 (Requested Instmction) at 2. Simultaneously, the proposed
Defense instruction describes a "knowingly" general intent as insufficient. See Requested
Instruction at 2 ("Providing intelligence to a third party with reason to believe that the enemy . . .
would likely receive it, is insufficient."). Furthermore, the Defense improperly inserts a specific
intent requirement into its definition of "indirect means" by requiring a desired purpose that the
infonnation be conveyed to the enemy by an intermediary. See Requested Instruction at 2
("Absent an intention that the intermediary convey the infonnation to the enemy, the accused's
communication with a non-enemy individual or entity is not an "indirect" communication with
the enemy regardless ofwhether an enemy ultimately was able to receive the substance ofthe
information that the accused provided to the non-enemy."). In sum, the Defense instruction
plainly contradicts the law and this Court's previous ruling on the Defense Motion to Dismiss the
Specification of Charge 1.
"Knowingly and intentionally" sets a higher standard than "knowingly" and its exclusion
from Article 104's language is notable because it is explicitly used elsewhere in the UCMJ. The
drafters chose to employ the "knowingly and intentionally" standard in the MCM for
noncompliance with procedural rules under Article 98(2), UCMJ; however, the drafters declined
to implement this same standard for Article 104. See MCM pt. IV, % 22a(2) (2012); see also
MCM pt. IV, % 30c(5) (requiring proof of a specific intent to prove a charge of spying under
Article 106). Moreover, the Defense aptly observes that its proposed "knowingly and
intentionally" standard sets a different and higher standard than the "knowingly" standard
- Indeed, the higher standard of specific intent is appropriate for the more serious charge of irea.son. See Haupt v.
United Stales. 330 U.S. 631, 641-42 (1947) (holding that jury should determine whether the accused intended to
indulge his disloyal .son or .specifically injure the United States).

22639

required for general intent under Article 104. See Defense Motion % 26 (describing "knowingly
and intentionally" as being "friendlier" to an accused).^ The Govemment agrees that "knowingly
and intentionally" is a higher standard, but the Govemment disagrees that this higher standard is
appropriate where it requires adding a term explicitly omitted from the plain text of Article 104
but included as an element ofArticle 98(2). .See MCM pt. IV, % 28c(5)(c) (2012); .yee
Section 111, infra.
Moreover, the Defense's discussion of the crime of arson fails to justify changing the
general intent required to a specific intent. The Defense correctly notes that arson requires
general intent in militaryjustice; however, that intent is "willful and malicious," which merely
requires an intent greater than negligence. See United States v. .Acevedo-Velez, 17 M.J. 1, 7
(C.M.A. 1983) (deciding that voluntary intoxication is not a valid defense because arson is not a
specific intent crime). Arson is a separate crime requiring a different intent. Therefore, any
comparison provides no insight into the charge of aiding the enemy.
III.

THE MILITARY COMMISSIONS ACT AND COMMON LAW OF WAR DO NOT
SUPPORT A "KNOWINGLY AND INTENTIONALLY STANDARD ' IN THIS
CASE

The Military Commissions Act comparison made by the Defense fails because Congress
explicitly chose to add the "knowingly and intentionally" standard to Offense 26, yet the Drafters
declined to change the language of Article 104 to include the "knowingly and intentionally"
standard in both 2008 and 2012. .See MCM pt. IV, % 28c(5)(c) (2008); MCM pt. IV, H 28c(5)(c)
(2012). In fact, Congress further heightened the requirements of Offense 26 in comparison to
Article 104 by adding a loyalty element. See 10 U.S.C. § 950t(26) (requiring, among other
elements, a "breach of an allegiance or duty to the United States"). Additionally, the name ofthe
offense cited by the Defense, "Wrongfully .Aiding the Enemy," also indicates an increased
standard. Here, the accused is charged with aiding the enemy, not "wrongfully" aiding the
enemy. Similarly, the common law of war cited by the Defense discusses the elements of
wrongfully aiding the enemy, an offense for which the accused is not charged.'* Ultimately, the
entire comparison is irrelevant because the offense cited by the Defense pertains to military
commissions for unprivileged alien belligerents and not Soldiers who aid the enemy and are
subject to courts-martial under the Uniform Code ofMilitary Justice. See n. 3, supra.

Offense 26 is a charge for "Wrongfully Aiding the Enemy" as established by the Military Commissions Act of
2009, which establishes procedures governing the use of military commissions to try alien unprivileged enemy
belligerents for violations of the law ofwar. See 10 U.S.C. § 948b(a) (2012). In responding to the Defense's
hypothetical situation where a terrorist's acts are potentially evaluated under a "friendlier" mens rea, the
Government notes that Soldiers, who owe a duty of loyalty to the United States, are consistently and widely held to
a higher standard. Moreover, the Defense neglects to consider that the loyalty element, discu.s.sed infra, presumably
would not apply to a terrorist because he would lack an ostensible allegiance or duty to the United States.
Therefore, a terrorist would not be subject to Offense 26. .Accordingly, the terrorist would not benefit from a
"friendlier" mens rea than a Soldier charged with an Article 104 violation.
The Government also notes that the Defense cites the codification of the common law, which renders actual
common law moot.

22640

CONCLUSION
Forthe foregoing reasons, the prosecution respectfully requests that the Court deny
Defense Motion fbr Specific Instructions: the Specification ofChargeL

ALEXANDER ^O^ ELTEN
CPT,JA
AssistantTrial Counsel

1/
' y ^ ^ t i —

RROW

CCPT, JA
Assistant Trial Counsel

I certify that I served or caused to be served a tme copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 6 July 2012.

Assistant Trial Counsel

22641

UNITED STATES OF AMERICA
GOVERNMENT RESPONSE TO
DEFENSE REQUESTED
INSTRUCTION: SPECIFICATIONS
4, 6, 8, 12, AND 16 OF CHARGE I I

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

6 July 2012

RESPONSE
COMES NOW theUnited States of America, by and through undersigned counseL and
respectfully requests this Court deny giving the Defense Requested Instruction for Specifications
4,6,8,12,andl6ofCharge IL The proposed defense instructions are conlbsing and incomplete
in that they do not define necessary terms.
The United States objects to the defense instruction in its entirety,including any
instructions that incorporateamistal^e of fact defense before the presentation of evidence.
The United States joins the defense in requestingadefinitionof"cost price" and "purloin" .^^^
Def Mot at5,6 The United States objects specifically to the following italicized portions:
Court Instructions^
(1) That the property alleged to have been stolen, purloined, or knowingly converted, to wit: the
Combined Information Data Network Exchange Iraq database containing more than 380,000
records, belonged to the United States government:
(2) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on
or about 31 December 2009 and on or about 5 January 2010, steal, purloin, or knowingly
convert to his u.se or the use ofanother the named proper!}-:
(3) That the accused acted knowingly and willfully with the intent to deprive the government of
the use and benefit ofits property:
Comment: These instructions do not accurately track either the Fifth Circuit Pattem Criminal
Jury Instmction 2.33 orthe Eight Circuit Model Criminal Jury Instruction 6.18.641. See
Enclosures 3 and 4 to the Govemment's Proposed Member Instmctions. They appear to track
the Eleventh Circuit Pattem Criminal Jury Instmctions cited as authority by the defense, but the
United States maintains that it makes more sense to group the mens rea (knowingly and
willfully) with the act of "stealing, purloining, or converting." See Govemment's Proposed
Member Instmctions.

The United States has the same objection to the instructions for all the 18 U.S.C. tj 641 specifications at issue.

1

giLXxLXVt I C l 8 P ^ )
APPELLATE EXfflBFT
Page I ofPapefs)

D e i -toaj

22642

Court Definitions
[If stealing is charged]: To steal money or property means to take someone else's money or
property' without the owner's consent with the intent to deprive the owner ofthe value ofthat
money or property.
[Ifpurloined is charged]: To purloin is to steal with the element of stealth, that is, to take by
stealth someone else's property without the owner's consent with the intent to permanently
deprive the owner ofthe value ofthat property.
[If conversion is charged]: To knowingly convert property means to exercise control over the
property in an unauthorized manner in a way which seriously or substantially interferes with the
government's light to use and control its own property, knowing that the property belonged to
the United States, and knowing that such use was unauthorized. Mere misuse ofthe property is
not enough fbr you to find that the accused knowingly converted it. Rather, you must find that
such misuse seriously or substantially interfered with the government's ownership rights in that
property.
Comment: Stealing, purloining, and converting are all charged. See Charge Sheet. Inaccurate
and misleading statement ofthe law in its entirety. To "steal" does not mean to take someone's
property with the intent to deprive the owner of the value ofthat property. Similarly, "purloin"
is also not linked to the intent to permanently deprive the owner of the value of the property. See
United States v. Morissette, 342 U.S. 246, 270 (1952) ("Stealing... is commonly used to denote
any dishonest transaction whereby one obtains that which belongs to another, and deprives the
owner of the rights and benefits of ownership, but may or may not involve the element of stealth
usually attributed to the word purloin."); Enclosure 4 to the Govemment's Proposed Member
Instructions ("To 'steal' or 'convert' means the wrongful taking of property belonging to another
with intent to deprive the owner of its use or benefit, either temporarily or permanently.");
Enclosure 1 to the Government's Proposed Member Instructions. Addifionally, in the
"conversion" instruction, the United States is not required to prove that the accused "knew" that
the property belonged to the United States, only that he knew that he property was not his. See
Enclosures 3 and 4 to the Government's Proposed Member Instructions.

'WbtAN
XPT, JA
Assistant Trial Counsel

22643

Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David E.
Coombs, Civilian Defct^se Counsel,via electronic mail,onbJuly 2012

^AN MORROW
^PT,JA
AssistantTrial Counsel

22644

UNITED STATES OF AMERICA
GOVERNMENT RESPONSE TO
RENEWED MOTION TO DISMISS
SPECIFICATIONS 13 AND 14
OF CHARGE I I FOR FAILURE
TO STATE AN OFFENSE

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

6 July 2012
RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfiilly requests this Court deny, in part, the Renewed Motion to Dismiss for Failure to State
an Offense: Specifications 13 and 14 of Charge II.

BURDEN OF PERSUASION AND BURDEN OF PROOF
As the moving party, the defense has 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) (2012). The burden of proof is by a
preponderance of the evidence. RCM 905(c)(1).

FACTS
The United States stipulates to the facts set forth in paragraphs 3 and 4 of the Defense
Motion.
The United States stipulated to the facts contained in the facts section of the original
Defense Motion for Failure to State an Offense. See Appellate Exhibits LXXXX and LXXXXI.
In other words, the United States has never stipulated to the fact that the accused was entitled or
authorized to access "each and every piece of information" the accused allegedly accessed on his
govemment computer. See Def Mot. at 2.
Appellate Exhibit CXXXIX
This Court ruled, inter alia, that it would adopt the narrow meaning of "exceeds
authorized access" under the Computer Fraud and Abuse Act (CFAA) and instruct the fact finder
that the term "exceeds authorized access" is limited to violations of restrictions on access to
information, and not restrictions on its use. See Appellate Exhibit CXXXIX, at 9; United States
V. Nosal, 676 F.3d 854, 863-64 (9th Cir. 2012). The Court further held that it would craft
instructions for defining "exceeding authorized access" using the language in the legislative
history in 1996. Appellate Exhibit CXXXIX, at 9.

APPELLATE EXHIBIT

22645

"Wget" isafreely available networl^ utility used to retrieve files fromaweb server using
^yperTe^t Transfer Protocol (I^TTP) and File Transfer Protocol (FTP), two widelyused
Internet protocols, ^ee Enclosurel. Wget can be used asa"web crawler" by extracting
resources linl^ed from web pages and downloading them in sequence, repeating the process
recursively until all the pages have been downloaded orama^imum recursive depth specified by
the user has been reached. In other words,Wget can be used to rapidlymine data from
websites, ^ee Enclosure 2, at 131. During the Article 32 investigation, the United States
presented evidence that the accused addedWget to his Secret Intemet Protocol Router Networl^
(SIPRNET) computer and used the program to access and harvest more than 250,000
Department ofState diplomatic cables from the NetCentric Diplomacy (NCD)website. ^ee
EncIosure3. Wget was not authorized software fbr Army computers, ^ee Enclosure 2,at 126.
In order fbraperson to access and obtainadiplomatic cable on the NCD website, the person has
to individually "elicit" or "save" the diplomatic cable after searching fbrthe cable ornavigafing
to the cable in some manner.

WITNESSES^EVIDENCE
The United States requests this Court consider the previous pleadings filed by the parties
on this issue, EncIosuresl-3,and Appellate Exhibit CXXXIX.

LEGAL AUTHORITY AND ARGUMENT
The defense argues, again, that the United States has failed to allege the accused
"exceeded authorized access" within the meaning of 18 U.S.C. § 1030(a)(1) because the accused
"was authorized to access each and every piece of information he allegedly accessed." Def Mot.
at 4. The defense argument has no merit. The Govemment's theory for Specification 13 of
Charge II - that the accused "exceeded authorized access" in violation of 18 U.S.C. § 1030(a)(1)
when he obtained the information at issue using an unauthorized program - is a valid application
of the statute, even as restricted by this Court's ruling adopting the interpretation favored by the

Nosal court.
L

THE GOVERNMENT'S THEORY IS CONSISTENT WITH THE HOLDING OF THE
NINTH CIRCUIT IN NOSAL.

Nosal stands for the proposition that the term "exceeds authorized access" is limited to
violations of restrictions on access to information, and not restrictions on its use. Nosal, 676
F.3d at 863-64; Appellate Exhibit CXXXIX, at 9. The proper inquiry in this case, therefore, is
whether and to what extent there was a violation of an "access restriction" to the diplomatic
cables at issue in Specification 13 of Charge II. See Charge Sheet. The defense argument, in
essence, is that there was no access restriction to the information because the accused was
"authorized to access each and every piece of information he allegedly accessed." Def Mot. at
' See http://en.wikipedia.org/wiki/Wget.

22646

4. hi the defbnse'sview,the manner in which the infbrmation is downloaded is irrelevanf ^ee
However, the manner in which one accesses infbrmation is relevant to whether ornot an
individual "exceeds authorized access" underI8U.S.C.^ 1030(a)(l). The authority to access
infbrmation cannot be meaningfiilly separated ftom the manner in which one does so. An
individual's"authority" to do practically everything is limited by specific circumstances or by
the scope ofthat authority,and this case is no differenL ^ee.e.^.^^^^7e^.^^^^e.^v.^^^^.^^^^,57
M.J.282, 304(C.A.A.F.2002)(discussing that apprehension under the guise of surveillance fbr
purpose ofobtaining evidence exceeds the scope ofan arrest warrant). Tohold otherwise would
be to ignore the plain meaning ofthe statutory text and this Court'sruling adopting the narrow
meaning of"exceeds authorized access" favored by A^^^^. Additionally,the practical effect of
adopting the defense position would be toftirthernarrow "exceeds authorized access" into
oblivion.
An individual "exceeds authorized access" underthe CFAA andI8U.S.C.^I030(a)(l)
when the individual "access^es^acomputer with 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.^I030(e)(6). The renewed defbnse motion argues thataperson exceeds authorized
access only when he "obtains or alters infbrmation that he is not authorized to obtain or alter."
Def MoLat5. ConsequentIy,"ifaperson is authorized to access certain files, the use ofa
program lil^eWget to download those files cannot change the fact that the person is still
authorized to access those same files." Def MoL at 12. In short, the defense recycles the same
argument they set forth in their original motion—that an accused "exceeds authorized access" to
acomputer only when he or she uses authorized access toacomputer to obtain or alter
infbrmation that he or she is never entitled to obtain or alter. ^eeDef.MoLat3. This
interpretation that the manner of access is irrelevant^ignores common sense, the plain
meaning ofthe statutory text, and the purpose ofthe statute itself
The defense argues that the Govemment'sinterpretation still relies heavily on the word
"so" in the statutory definition of"exceeds authorized access." ^ee Def MoL at 8-9. While true
that the word "so" indicates that "the manner" matters, the A^.^^^ court helpfully addressed this
issue in their decision rejecting the Govemment'stheory that the defendant in that case
"exceeded authorized access." While discussing the Govemment'sinterpretation of the word
"so"in the statutory definition, the court indicated that the Govemment'sreasoning failed

because the word "has meaning even i f i t doesn'trefer to use restrictions." Ab.^^^,676E.3dat
858. The court explained:
Suppose an employer l^eeps certain infbrmation in a separate
database that can be viewed onacomputer screen, but not copied
or downloaded. If an employee circumvents the security measures,
copies the information to a thumb drive and wallas out of the
building with it in his pocl^et, he would then hav^e obtained access
to infbrmation in the computer that he is not'entitled so to obtain.'
Or, let'ssay an employee is given ftill access to the infbrmation,
provided he logs in with his username and password. In an effort
to cover his trades, he uses another employee's login to copy
infbrmation ftom the database. Once again, this wouldbe an

22647

employee who is authorized to access the infbrmation but does so
inamanner he was not authorized'so to obtain.'

In short, even the A^.^^^court neverwenf so far as to hold that the manner in which one
accesses infbrmation is irrelevant toadetermination of whether an accused "exceeds authorized
access" within the meaning ofl8U.S.C.^1030(a)(I)and(e)(6). The examples above, along
with the narrow scope of the court'shoIding(restrictions on access to infbrmation, not
restrictions on its use), clearly demonstrate that the court considered "the manner" relevanL The
obvious common thread in both ofthe A^.^^^court'shypotheticals is that the potential defendant
has access to the infbrmation. The defendants were entitled or authorized to view the
infbrmation inaspeciftc way. The defendants only access infbrmation in excess of authority
when they access the information in some unauthorized manner. Ultimately,if the court thought
the issue was blacl^ and white^if an individual has access to the infbrmation in some capacity,
then they cannot exceed authorized access they would have articulated that draconian concept
more clearly. While the Govemment concedes this^aunt is mostly dicta—it is important because
it indicates the court'sthinl^ing on this matter. Accordingly,because the Govemment'stheory
has unquestioned support in the dicta ofA^.^^^and the court'snarrow holding, the Govemment's
theory isavalid application ofthe statute.

IT

THE GOVERNMENT'S THEORYISCONSISTENTWITHTHE LANGUAGE OF
THE 1996 LEGISLATIVE HISTORY

As noted by the Court in Appellate Exhibit CXXXIX, Congress amended^I030(a)(I)in
1996 .^ee Appellate ExhibitCXXXIX,at6;SRepNoI04 357 (1996) TheCourtinfbrmed
the parties that it would craft instructions fbr defining "exceeds authorized access" using the
language in the legislative history inl996. 7^.at9. Tothe extent that the language in the 1996
legislative history contributes in any meaningful way toadetermination of what constitutes
"exceeding authorized access" within the meaning of^l030(a)(1), the Govemment'stheory of
criminal liability is consistent with the language.
The 1996 amendments to^ 1030(a)(1)brought the language ofthe statute in line withI8
U.S.C.^ 793(e). As the Senate report explained:
Although there is considerable overlap between 18U.S.C. 793(e)
and section 1030(a)(1), as amended by the Nil Protection Act, the
twostatutes would not reachexactly the same conducL Section
1030(a)(1)wou1d target those persons who deliberately breal^ into
acomputer to obtain properlyclassifiedGovemment secrets then
try to peddle those secrets to others, including foreign
governments. In other words, utilil^e existing espionage laws
prohibiting the theft and peddling of govemment secrets to foreign
agents, sectionl030(a)(l)would require proof that the individual
l^owingly used a computer without authority, or in excess of

22648

authority, fbr the purpose ofobtaining classified infbrmation. In
this sense then, it is the use of the computer which is being
proscribed, not the unauthorized possession of, access to, or
control overthe classified infbrmation itself
S R e p N o l 0 4 357,at6(1996)
The defense is singularly fbcused on Congress'explanationthat^ 1030(a)(1) targets
those persons who "deliberately breal^intoacomputer." ^eeDef MoLatlO. However, the
Govemment does not allege the accused hackled "into the computer to obtain infbrmation he was
not authorized to obtain." DefMoLatlO. Instead, he accessedacomputer with authorization
and exceeded that authorization by circumventing procedures and using an unauthorized
program to obtain infbrmation—he "hacl^ed" the infbrmation. When Congress inartfully
summarized^I030(a)(1)inthe 1996 legislative history,theywereclearlyrefbrring to the
"withoutauthorization" prong of^I030(a)(1)^ee18USC 1030(a)(l)("Whoever having
l^owingly accessedacomputer without authorization...."). There is no other logical
explanation, because "exceeds authorized access" under 1030(e)(6) necessarily assumes that the
individual has accessedacomputer with authority in the first place—it criminalizes the "insider"
with rights or privileges who misusesacomputer. .^eeOrinS.I^err,Cy^e^^^^7^e.^^^^e.^
.^^^e^^e^^T^^ Bf^^e.^.^'^^^^^^^^^^^^^^^^^^^^^^^^^^
1596, 1662 (2003) thereinafter ^err,Cy^e^^^^^e.^^^^^e^;A^.^^^,676F.3d at 858. Thus, that
particular phrase ("deliberately breal^intoacomputer"), is misleading if used solely asabasis
fbr defining "exceeds authorized access."
On the other hand, if'deliberately breaks intoacomputer" is merelyaguiding light in
making sense ofthe purpose ofthe statute as whole, it contributes to our understanding of
"exceeds authorized access." As this Couri recognized after considering the legislative history,
"the statute is designed to criminalize electronic trespassers and computer hacl^ers." In other
words, the statute is designed to criminalize individuals who circumvent or bypass some code
based restriction. ^e^^^^^^^^^I^err,Cy^e^^^^^e^.^.^^^^e,atl600(using trespassing, hacl^ing,
and "bypassing codebased restrictions" somewhat interchangeably). According1y,the
Govemment'stheory is entirely consistent with the legislative history and this Court'sruling. In
order fbraperson to access or obtainadiplomatic cable on the NCD website, the person has to

individually "elicit" or "save" the diplomatic cable after searching fbr the cable or navigating to
the cable in some manner. As the evidence will show,the accused bypassed the ordinary method
of accessing infbrmation by adding unauthorized software to his SIPRNETcomputer and using
that software to rapidly harvest or data mine the infbrmation. Wget was not available on the
computers used by the accused or authorized asatool to download the infbrmation. ^eeDef.
MoLat3. Thus, the accused violatedarestriction on access to the informationthe bypasseda
codebased restriction by usingWget to obtain the cables in batches.
Additionally,the Govemment'stheory fbr Specification 13is consistent with the
language of the legislative history because it is anchored to the accused'segregious use of
unauthorized software onagovemmentowned SIPRNETcomputer. As Congress noted in
discussing the difference between ^^ 793(e)and 1030(a)(l),"it is the use ofthe computerthat is
being proscribed, not the unauthorized possession of, access to, or control over the classified

22649

infbrmation itself." Section 793(e)is focused on the unauthorized possession and transmission
ofthe infbrmation, while^ 1030 is focused on the misuse ofacomputer. Wget, despite the
wildly erratic defense argument to the contrary,is focused on the use ofthe computer, not the
use of the infbrmation.^^ee Def MoL at10("^T^he Govemment is attemptingtouseaviolation
ofause restriction under thoAUP^the installation and use ofWget^to show that PFC
Manning exceeded authorized access."). As such, the Govemment'stheory is clearly consistent
with the language ofthe 1996 legislative history.

IIL

THE GOVERNMENT'S PROPOSED INSTRUCTIONS 8ALANCE COMPETING
THEORIES AND INCORPORATEA^^^^.^ANDTHE LEGISLATIVE HISTORY

The Govemment'sproposed member instructions fbr Specification 13of Charge IE and
specificallythe term "exceeds authorized access,"comp1ies with this Court'sruling on the
original Defbnse Motion to Dismiss Specifications 13 andl4. ^ee Govemment'sProposed
Member Instructions, atl8-22. First, the United States proposed that the Couri instruct the fact
finder that "Section 1030(a)(1)is focused on the individual'suseofacomputer."7^. at 19; .^ee
Appellate Exhibit CXXXIX, at9("The Couri shall craft instructions...using the language in the
legislative history inl996."). The United States incorporated language directly ftom the
legislative history. Additionally,fhe United States proposed the following instruction fbr
"exceeds authorized access":
The term "exceeds authorized access" means to accessacomputer
with authorization and to use such access to obtain or alter
infbrmation in the computer that the accesser is not entitled so to
obtain or alter. "Exceeds authorized access" under^l030(a)(1)is
limited toviolations of restrictions on access toinfbrmation,and
not restrictions on its use. In deciding whether the accused
"exceeded authorized access" to the StateDepariment cables at
issue, you may consider all the evidence introduced at trial,
including any evidence conceming the use of unauthorized
software to obtain the cables and any access limitations or
restrictions to the State Department cables,orlacl^ thereof on the
SIPRNET. The words ^^access^^ and ^^use^^ are commonly used and
commonly understood words.
^ee Govemment Proposed Member Instructions, at 20.
The above instruction incorporates the statutory definition of'exceeds authorized access'
under^ 1030(e)(6), the holding ofthe couri inA^.^^^, and the competing theories ofthe
Govemment and the defense. In otherwords, the instruction allows the fact finderto determine
whether and to what extent there was an "access restriction" tothe State Depariment cables. It
- Arguably, the language of the 1996 legislative history - that § 1030(a)(1) would require proof that an individual
knowingly used a computer in excess of authority for the purpose of obtaining classified information - is also fully
compatible with the Govemment's previous theory that the accused "exceeded authorized access" when he violated
a purpose-based restriction on access.

22650

presentsashoriened version ofthe Govemment theory(useofunauthorizedsoftware)and the
defense theory (lacl^oflimitations or restrictions on the SIPRNET). The instruction balances
both theories and should be adopted by this Couri in fulL

CONCLUSION
The United States respectfully requests this Couri DENY,in pari, the Renewed Motion to
Dismiss fbrFailure to State an Offense. For the reasons stated above. Specification 13 ofCharge
II adequately states an offense punishable under18U.S.C.^ 1030(a)(1). In the altemative, the
United States requests the Couri defer ruling on this motion until the presentation of evidence.
The United States maintains that ifs theory of criminal liability fbr Specification 14is dependent
upon instructions by the Couri.

^^^^^^1^^^^^^

B^JODEANMORI^OW
^PT,JA
AssistantTrial Counsel

Iceriifythatlserved or caused to be servedatrue copy ofthe above on Mr. David E.
Coombs, Civilian Defense Counsel,via electronic mail,onbJuly 2012.

'Tl^vf^^

lAN MORROW

:PT, JA
Assistant Trial Counsel

3 Ends
1. Forensic Report Excerpt
2. Article 32 Testimony, SA David Shaver
3. Condnuafion Sheet, DD Form 457, pp. 27-32

22651

Appellate Exhibit 188
Enclosure 1
1 pages
ordered sealed for Reason 6
Military Judge's Seal Order
dated 20 August 2013
stored in the original Record
of Trial

22652

9 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
10 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 substsmce as
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follows:
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DIRECT EXAMINATION
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15 Questions by a s s i s t e i n t t r i a l counsel 1:
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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
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began working f o r them i n 1999, a t the time I was i n the
19 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
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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
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t h e 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
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conduct examinations o f d i g i t a l media i n support o f CCIU cases.
The primary 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
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Army computer worldwide, however we are tasked t o do o t h e r
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stuff.
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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
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would be the Law Enforcement T r a i n i n g Center, i n Glencoe,
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Georgia; the Defense Cyber Crime Center i n Maryland, and I have
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been t r a i n e d on v a r i o u s commercial products as w e l l . Products
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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
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r e c e i v e d t r a i n i n g on Windows, Unix, Linux, and Macintosh. I
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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 .
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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
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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
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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 co39
authored a chapter on Windows f o r e n s i c s i n the handbook o f
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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
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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
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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
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v i r t u a l machine on your host computer. By using a v i r t u a l
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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 .
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I was n o t i f i e d o f t h i s case i n l a t e Ma^ o f 2010, I examined
pieces of 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 primary 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 5 a set of 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 Coogle o f the SIPPNET. I
examined I n t e l i n k logs, those l o g f i l e s ranged from October 2009
u n t i l May 2010.
^rom the l o g s I was able t o o b t a i n the m a j o r i t y
o f the a c t i v i t y t h a t happened on the computer.
I identified
some kind of 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 put 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 of searches t h a t seemed out of p l a c e , the keyword
searches t h a t he was using seemed out 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 the Excel spreadsheet t h a t I
created c a l l e d keywords.
I t i s a f i l t e r e d spreadsheet o f the
keyword searches f o r WikiLeaks. Erom November 2009 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 the keyword
Iceland.
The f i r s t search f o r Iceland was 9 January 2010, i t i s
o n l y f i l t e r e d on the 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 the 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 the 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 the 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 of f i l e s . WGET i s a command
line u ^ i l i t ^
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 y^ou have t o open up a
command prompt and then you are able t o t^pe the commands, i t i s
l i k e a DCS program.
WGET i s not 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 get 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 of 2010.
This i s another p o r t i o n of the screenshot of the 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 the searches, i f a document was

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downloaded, i f t h e search came back, f i l e not 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 t h e 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 t h e 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 g u i r i n g image and o f t h e 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 or 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 t h e 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 t h e ^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 , ^TE 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 ^TE Guantanamo Bay, Cuba
detainee assessments. I knew t h a t t h e ^ 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 could 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.

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I found a ^dot^ . ^ i p f i l e under PEC Manning^s user p r o f i l e
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and i n s i d e of i t were over ten thousand complete Department o f
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State cables, web pages. I a l s o found an Excel spreadsheet, i t
4 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 0310-0410, and the t h i r d tab was 0510.
I n the
5
second tab was Department of State message r e c o r d numbers t h a t
6
7
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
8
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
9
10
s e g u e n t i a l number a f t e r t h a t . To my knowledge Wikil^eaks has
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released 251,287 cables. Cn a t h i r d tab i t was a l l of the
Department o f State cables t h a t were p u b l i s h e d i n May 2010. I t
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was j u s t message record numbers not the f u l l cable.
14
There was a WGET tab i n t h e r e as w e l l , i t was over ten
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thousand message record numbers, the second column was the
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command l i n e using WGET t h a t downloaded t h a t message r e c o r d
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number from the Department o f State net c e n t r i c server. The
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f i r s t column i s the message r e c o r d 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
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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
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i s i n column A and put i t i n column B, but i n the r i g h t p a t h .
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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
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understand i f they^ were able t o see the document t h a t the
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witness was t a l k i n g about.
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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
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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
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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 .
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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
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^^^:i^^on^
:i^^^e^^ ^nd i^eoon^ene tomorrow when the problem i s
fixed.
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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
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g u e s t i o n i n g would not take t h a t much longer and reguested t o
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continue w i t h the g u e s t i o n i n g o f t h i s witness.
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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
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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
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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 .
45

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The t r i a l counsel gave the document number t o the
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 would be able t o review i t once
he went back t o h i s chambers.
The d i r e c t examination by^ 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
follows:
I n Column 8 i t i s an Excel formula, t o take what i s i n
Column A and put i t i n t o a s c r i p t so i t could i d e n t i f y the
f i l e . A f t e r you have a l l of column B f i l l e d , you would be able
t o copy t h a t column as t e x t and put i t i n a batch f i l e ; and run
t h e batch f i l e i n a command s c r i p t . There were about t e n
thousand commands i n t h a t batch, and I saw those message r e c o r d
numbers on the l e f t , t h e ^ were downloaded i n t o the o r i g i n a l ^ i p
f i l e I discussed e a r l i e r .
I n the
This i s a l l under PEC Manning^s user p r o f i l e .
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 the
computer. The computer w i l l i d e n t i f y programs t h a t you use on a
r e g u l a r b a s i s , so the next time you run the program i t w i l l load
guicker.
^ou can run t h a t program WGET a t t h e same time from
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 be able t o download a l o t
of f i l e s s i m u l t a n e o u s l y .
WGET was i n PEC Manning^s p r o f i l e , i t appeared 4 May^ 2010.
I t was not the f i r s t time 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 predate t h a t . W i t h i n the Windows temp
f o l d e r t h e r e were two f i l e s , these f i l e s each c o n t a i n e d
approximately 100 complete Department o f S t a t e cables, these
f i l e s were i n CS^ format and they contained 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 Separated ^ a l u e .
I t i s j u s t a way of moving f i l e s from one database t o another.
Base ^4 i s an encoding scheme, i t transforms data and documents
i n t o a d i f f e r e n t format. Someone would do t h a t t o s t r e a m l i n e
the process o f t a k i n g the cables o u t ; i t took away^ a l l the
p u n c t u a t i o n , a l l the spacing, and j u s t put the 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 of the State Department complete cables.
They were u n c l a s s i f i e d or s e c r e t . They were not a l l complete.
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, the Internment S e r i a l Numbers, which are a
unigue p a t t e r n o f c h a r a c t e r s . I d i d a search f o r them and I
found hundreds of documents w i t h t h a t convention. The ISN i s
the internment s e r i a l number and i s used as an i d e n t i f i e r . I

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found ISNs on PEC Manning^s computer. They^ were found i n the
2
index.dat f i l e .
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4
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,
5
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
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was the released v e r s i o n from WikiLeaks and t h e r e was another
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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
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i n s t a n c e of t h a t video being t h e r e was March, through
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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 .
10
Pestore 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
11
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i f t h e r e ^ s a problem w i t h the computer you can go back i n time
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and get your computer t o work again.
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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
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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
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profile.
I b e l i e v e the f i r s t time i t was viewed was 2 March
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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
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due t o the f a c t t h a t the computer had problems and i t was
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reimaged p r i o r t o t h a t .
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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
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t h e r e were hundreds o f f i l e s which appeared t o be p a r t o f the
i n c i d e n t , and I recovered d e l e t e d PDEs and ^PEG images
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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
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index.dat which I put i n t o an Excel spreadsheet f o r ease o f
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v i e w i n g . I t i s j u s t a s n i p p e t 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 UPl^,
31
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
32
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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
34
^ i ^ e ^ ^he p ^ t h . I t appears t h a t somebody u s i n g the
35
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^radley^.Manning user p r o f i l e downloaded a l a r g e number f i l e s
37
concerning the Earah i n c i d e n t and a t the end c r e a t e d a
38
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
39
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 ,
40
p i c t u r e s from a i r c r a f t , reconnaissance over the combat ^one.
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^The witness was t e m p o r a r i l y excused, d u l y warned, and
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withdrew from the courtroom.^
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^The A r t i c l e 32 hearing recessed a t 1^34, 1^ December
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2011.^

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^The A r t i c l e 32 hearing was c a l l e d t o order a t 0934, 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 t h e hearing t o order, 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 t h e recess were once
again present.
SPECIAL AGENT DAVID SHAVER, 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 c a t h ,
and t e s t i f i e d i n substance as f o l l o w s :
CRCSS-EXAMINATICN
Questions by^ t h e c i v i l i a n defense counsel:
I d i d the computer f o r e n s i c s on both o f t h e 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 t h e SIPP computers i n t h e SCIE. 1 do
n o t know the t o t a l number o f SIPP computers i n t h e SCIE. I do
n o t know i f t h e program WGET was on t h e 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 mining. ^^esterday 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 t h e 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
t h e cables t h a t I found i n t h e f i l e w i t h t h e cables t h a t were on
the Wikil^eaks website. None o f those cables t h a t I found i n t h e
f i l e s . ^ i p f o l d e r were on t h e Wikil^eaks website. The computer
t h a t I found these cables on was a SIPP computer. I was n o t
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 n o t aware t h a t no password was r e g 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 ^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
t h e 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 t h e
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
t h e SIPP computers.
I d i d not know t h a t the Apache video was a
t o p i c o f d i s c u s s i o n among t h e a n a l y s t s a t EOB Hammer. 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 t h e 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 o f f i l e s onto the a l l o c a t e d space o f

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t h e computer.
I n t h e a l l o c a t e d space I f o u n d f o u r d e t a i n e e
a s s e s s m e n t s , and i n t h e u n a l l o c a t e d space I f o u n d ^ e r o .
REDIRECT EXAMINATION
Q u e s t i o n s by^ A s s i s t a n t T r i a l

Counsel 1:

The c a b l e s i n t h e 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 .

C^^CTICN
The d e f e n s e c o u n s e l o b j e c t e d t o t h e l i n e
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 .

o fguestioning

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 t h e d e f e n s e ^ s
objection.
The r e d i r e c t e x a m i n a t i o n by^ t h e t r i a l
follows:

c o u n s e l c o n t i n u e d as

^hen t h e f i l e s . ^ i p was c r e a t e d t h e r e was s o m e t h i n g wrong,
t h e r e was a p r o b l e m w i t h i t , i f a p e r s o n u s i n g W i n z i p t r i e d t o
open i t , i t w o u l d n o t open because i t was a c o r r u p t e d f i l e .
So
you w o u l d need s p e c i a l t o o l s i n o r d e r t o open t h e f i l e s i n t h a t
^ip folder.
C8^CTION
The d e f e n s e c o u n s e l o b j e c t e d s t a t i n g t h e t r i a l
asking leading guestions.
The I n v e s t i g a t i n g O f f i c e r

c o u n s e l was

sustained the objection.

The r e d i r e c t e x a m i n a t i o n b ^ t h e t r i a l
follows:

counsel c o n t i n u e d as

I d i d f i n d f i l e s r e l a t e d t o t h e 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 f o u n d f o u r d e t a i n e e 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 i n d e x . d a t f i l e f o l d e r .
The d e t a i n e e s have a
u n i g u e naming sy^stem, t h e ISN, I l o o k e d f o r t h e p a t t e r n f o r t h a t
and t h e r e were h u n d r e d s o f t h o s e i n t h e i n d e x . d a t . The
i n d e x . d a t 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
w e b s i t e s and f i l e s v i e w e d by t h e u s e r .
RECRCSS-EXAMINATICN

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Questions b ^ t h e c i v i l i a n defense counsel:
I was not able t o open t h e form 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 the 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 not able 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 closed the courtroom.
^The A r t i c l e 32 hearing recessed

at 1012, 19 December

2011.^
IThe A r t i c l e 32 hearing was c a l l e d t o order a t 1016, 19
December 2011.1
The I n v e s t i g a t i n g O f f i c e r opened the courtroom.
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:
DIRECTEXAMINATICN
Questions by^ a s s i s t a n t t r i a l counsel 1:
An IP address i s an I n t e r n e t p r o t o c o l address. I t i s a
unigue s e t o f numbers t h a t i s assigned t o a computer so t h a t i t
can t a l k on t h e network.
The ^dotl .40 machine was t h e machine
t h a t PEC Manning^s user p r o f i l e was on. That was h i s secondary
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 , then I
conducted my examination.
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 computer, a Windows o p e r a t i n g system 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 Poxio t h a t was
i n s t a l l e d on t h e computer. Poxio i s CD burning s o f t w a r e . Poxio
was on t h e o t h e r computer, t h e ^dotl .22 computer t h a t a l s o had
PEC Manning^s user p r o f i l e on i t . USB p o r t s were d i s a b i e d f o r
storage, i t i s an Army p o l i c y . On both computers t h e USB p o r t s
were d i s a b l e d . When you burn a d i s k using Poxio, t h e CD has t o
be named and i t was named by date. This 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 burned when I r e - c r e a t e d , I t u r n e d t h e
^dot^ .22 computer 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 by b i t image o f a computer, i t converts i t t o a running
computer w i t h i n your computer which acts as a h o s t , so i t i s
running v i r t u a l l y i n the memory o f the host computer. I wanted
t o v e r i f y t h a t a CD could be burned from t h i s computer and so I

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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 l d o t l .40 computer was t h e
same t h i n g as t h e ^dot^ .22, t o see i f t h e r e were any
Department o f State cables, see i f there were any Guantanamo Bay
detainee assessments on t h e r e . I approached i t the same way.
I n t h e 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 the 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 s m a l l 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 presentable
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 t h e l e f t , t h e f i r s t f i e l d would
be t h e 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 server, t h i s i s the Message Pecord 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 t h e r i g h t o f t h a t i s the 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.
^ found t h i ^ 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 very 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 o t h e r
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

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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 the 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 b ^ t h e c i v i l i a n defense counsel:
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 not know whether usernames and passwords
were shared a t the T-SCIE on EOB l^ammer. The u n a l l o c a t e d space
w i t h the cables 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.
^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.^

135

22663

Continuation Sheet, DD Form 457, U.S. v. PFC Bradley E. Manning
indicates that PFC Manning provided the BE 22 PAX.wmv file to WikiLeaks and that file was
the one that was placed on Mr. Katz's computer.
The evidence showed that in the context ofhis chats with Mr. Lamo conceming the State
Department cables where he said, "it was forwarded to WL ... and god knows what happens now
... hopefully worldwide discussion, debates, and reforms,"' PFC Manning had reason to
believe that the information in this video could be used to the injury of the United States. PFC
Manning had no need to access information conceming Afghanistan for his job,"' and he had no
authorization to provide these documents to WikiLeaks, which was not authorized to receive it.
The evidence showed that this video was properly classified and remains classified.'"*
The evidence showed that 18 U.S.C. 793(e) exists and that PFC Manning's conduct in providing
these records to WikiLeaks was prejudicial to good order and discipline and service discrediting.
I thus conclude that reasonable grounds exist to believe that PFC Manning committed the offense
alleged in Specification 11 of Additional Charge II.
Additional Charge I I , Specification 12 (Art. 134, UCMJ; 18 U.S.C. 641):
Law
In order to prove this offense, the govemment must establish the following five elements:
(1) that at or near Contingency Operating Station Hammer, Iraq, between on or about 28 March
2010 and on or about 4 May 2010, the accused voluntarily, intentionally and knowingly stole,
purloined, or converted a thing of value, to wit: the Department of State Net-Centric Diplomacy
database containing more than 250,000 records belonging to the United States government to his
use or to the use of another;
(2) that the thing of value belonged to the United States and had a value in excess of One
Thousand Dollars ($ 1,000);
(3) that the accused did so with intent to deprive the owner of the use or benefit of the thing of
value so taken;
(4) that 18 U.S.C. section 641 exists; and
(5) 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.

Lamo Chat, 10 Ex. 19(D). at 33.
Testimony of CPT Lim (stating PFC Manning had no need to access the CIDNE-Afghanistan database for his
job).
' " Classification Review, Bates # 00376879-902.

27

22664

Continuation Sheet, DD Form 457, U.S. v. PFC Bradley E. Manning
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 download files from a server) that was the same version found in the
Department ofState log files, the Intelink log files, and that was downloaded on a NIPRNET
computer by the bradley. manning 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 2010 and
downloaded wget to that profile. A user of PFC Manning's user profile then transferred wget
firom the NIPRNET to SIPRNET on 4 May 2010, under PFC Manning's user profile.'"
The evidence showed that on 20 August 2011, WikiLeaks released 251,287 Department of State
cables in unredacted form and made them available on the Internet.'^'* While the evidence was
that WikiLeaks did not release the cables in thefiles.zipfolder,'^ the forensic examination found
thousands of State Department cables in unallocated space on PFC Manning's primary SIPRNET
computer, ranging in classification fi-om unclassified to secret; many were complete, but many
others were not.' Additionally, the forensic examination of PFC Manning's primary SIPRNET
computer revealed that a deleted and partially overwritten file named "c:\Lost
File\backup\farah.zip" was originally created on 10 April 2010 and contained 582 Department of
State Cables, over 250 of which were classified. The evidence showed the Department of
State cables were in .csv format, a way of moving files from one database to another, and were
Base64 encoded.'^^ Analysis of PFC Manning's secondary SIPRNET computer and his personal
computer also showed many Department of State cables that had been converted to Base64 and
stored in .csv format'^' Specifically, approximately 113,000 complete Department of State
cables converted to Base64 were found in a deleted .csv file in Unallocated Clusters on PFC
Testimony of SA Shaver; PFC Manning's Primary SIPRNET Computer Forensic Report; Bates tt 00211037-110,
at 31.
Testimony of SA Shaver.
PFC Manning's Primary SIPRNET Computer Forensic Report, Bates # 00211037-110, al31; 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.
Testimony of SA Bettencourt; Testimony of SA Shaver.
Testimony of SA Shaver. SA Shaver also testified there was a problem with files.zip when 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 # 00211037-11 0, at 34-36.
Testimony of SA Shaver.
PFC Manning's Primary SIPRNET Computer Forensic Report, Bates # 00211037-110, at 36.

28

22665

Continuation Sheet, DD Form 457, U.S. v. PFC Bradley E. Manning
Manning's secondary SIPRNET computer,and evidence ofDepartment 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 of State cables
with numbers preceding 251,287 in a format similar to the cables found on PFC Manning's
primary SIPRNET Computer.'^' Additionally, examination ofDepartment ofState 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 ... hopefblly
worldwide discussion, debates, and reforms ... I want people to see the truth... regardless of who
they are... because without information, youcannotmake informed decisions as a public,"'^'^ which
indicates that that he converted this database to his own use or the use of another in that he
wanted to make this information public and thus deprive its owner, the United States, ofits 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 I I , Specification 13 (Art. 134, UCMJ; 18 U.S.C. 1030(a)(1)):
Law
In order to prove this offense, the government must establish the following six elements:

PFC Manning's Secondary SIPRNET Computer Forensic Report, Bates # 00199494-507. at I, 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

22666

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 I 8 U.S.C. section 1030(aXI) 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
fbrces.'^^
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.xisx," 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 log files, 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
firom 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 U 00211037-110,
at 31.
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,
140 PFC Manning's Primary SIPRNET Computer Forensic Report, Bates # 00211037-110, at 37.
Testimony of SA Shaver.

30

22667

Continuation Sheet, DD Form 457,U.S. v. PFC Bradley E. Manning
The evidence showed that on 20 August 2011,WikiLeaks released 2517^7 Department ofState
cables in unredacted form and made them available on the Intemet''^^ While the evidence was
that WikiLeaks did not release the cables in thefiles.zipfblder,'*^ the forensic examination found
thousands ofState Department cables in unallocated space onPFC Manning'sprimary SIPRNET
computer,ranging in classificationfi^omunclassified to secret; manywere complete, but many
others were not.''^'^ Additionally,the forensic examination ofPFC Manning'sprimary SIPRNET
computerrevealedthatadeletedand 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 fbrmat,away of moving files from one database to another, and were
Base^4 encoded.''^^ Analysis ofPFCManning'ssecondary SIPRNETcomputer and his personal
computer also showed many Department ofState cables that had been converted to Base^4 and
stored in .CSV fbrmat''^^ Specifically,approximatelyll3,000 complete DepartmentofState
cables converted to Base^4 were fbund inadeleted .CSV file in Unallocated Clusters on PFC
Manning'ssecondarySIPRNETcomputer,''^^ and evidence ofDepartment ofStatecables
pubIishedbeforeMarch2010werefoundin Unallocated Clusterson PFC Manning'spersonal
computer,includingdataappearing to havea.CSV file structure listing DepartmentofState cables
with numbers preceding 251,287 inaformat similarto the cables fbund on PFC Manning's
primary SIPRNET Computer.''^^AdditionaIly,examination ofDepartment ofState cable
message record numbers released by WikiLeaks identified 251,298 individual message record
numbers; examination ofPFC Manning'spersonal computerand his primary and secondary
SIPRNETcomputers show^ed that they contained 83^ of all the message record numbers
released toWikiLeaks.'^^
Thisevidence, taken together, leads toaconclusion that the 251,287 files released by WikiLeaks
were provided toWikiLeaks by PFC Manning.
The evidence showed that in his chatswith Mr.Lamo conceming the State Department cables,
PFC Manning said,"it was forw^ardedtoWL...and god knowswhathappens now...hopefully
worldwide discussion, debates, and reforms ...Iwant people to see the truth...regardless ofwho
they are...because without infbrmation, you cannot make informed decisions asapublic,''^'
which indicates that that he had reason to believe that the infbrmation he obtained could be used
to the injury 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 with files zip when 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

22668

Continuation Sheet, DD Form 457,U.S.v.PFC Bradley E. Manning
WhiletherewasevidencethatPFCManninghadtheauthoritytoaccessdiplomaticcablesfbrhis
job,'^^ the context ofthat evidence was that access was authorized forthe analysts to do theirjob.
The evidence also showed thatbefore logging on to his primary and secondary SIPRNET
computers, PFC Manning had to click "01^" onawaming banner, the first sentence of which
read,"^^ou are accessingaU.S.Covemment (USC) Information System (IS) that is provided fbr
USC-authorized use only.'^'^^Accordingly, accessing diplomatic cables in order to provide them
toaperson not entitled to receive it exceeded authorized access. PFC Manning had no
authorisation to transfer this infbrmation toWikiLeaks,which was not entitled to receive it.
The evidence showed that these cables were properly classified and remain classified.'^^
The evidence showed thatl8U.S.C.1030(a)(l)existsand that PFC Manning'sconduct in
providing these classified cables to WikiLeaks was prejudicial to good orderand discipline and
was service discrediting.
AdditionalChargeII,Speeifieationl4(Art.l^4,UCM,I^18U.S.C.lll^fl(a)(l)):
7.^^
In order to prove this offense, the govemment must establish the following six elements:
(1) that at or near Contingency Operating Station Hammer, Iraq, between on or about 15
February 2010and on or aboutI8February20I0, the accused knowingly exceeded authorized
access onaSecret Intemet Protocol Router Network computer;
(2) that the accused obtained infbrmation that has been determined by the United States
govemment by Executive Order or statute to require protection against unauthorized disclosure
forreasons ofnational defense or fbreign relations, to wit:aclassified United States Department
ofStatecable titled "Reykjavik-13";
(3) that the accused had reason to believe that the information he obtained could be used to the
injt.iry ofthe United States or to the advantage ofany fbreign nation;
(4) that the accused willfully communicated, delivered, or transmitted the said infbrmation toa
person not entitled to receive it;
(5) thatl8USCsectionl030(a)(l)exists:and
(^) that, under the circumstances, the conduct ofthe accused was to the prejudice ofgood order
and discipline in the armed forces and was ofanature to bring discredit upon the armed forces.

Testimony of CPT Lim (stating he gave analysts the link through email to access diplomatic cables).
Testimony of SA Shaver; 10 Ex. 11 (P), at 1 (Bates # 00376856).
Classification Review, Bates # 00376903-53.

32

22669

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

)
)
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)
)
)
)
)
)

GOVERNMENT RESPONSE TO
DEFENSE REQUESTED
INSTRUCTION: SPECIFICATIONS
13 AND 14 OF CHARGE I I
6 July 2012

RESPONSE
COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny giving the Defense Requested Instruction for Specifications
13 and 14 of Charge IL The United States requests the Court consider its Response to the
Renewed Defense Motion to Dismiss for Failure to State an Offense: Specifications 13 and 14 of
Charge II for a more detailed response to the issues raised by the proposed defense instructions.
The United States objects to the defense instruction in its entirety, including any
instructions that incorporate a mistake of fact defense before the presentation of evidence.
The United States objects specifically to the following italicized portions:
Court Instructions
(1) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on
or about 28 March 2010 and on or about 27 May 2010, accessed a computer with authorization,
but exceeded his authority in accessing the information in question on a Secret Internet Protocol
Router network computer;
(2) That the accused knowingly exceeded his authorized access;
Comment: Misstates the elements. See Model Crim. Jury Instr. 9th Cir. 8.95 (2010) (Enclosure
5 to the Govemment's Proposed Member Instructions).
(3) That the accused, by means of such conduct, obtained information protected against
unauthorized disclosure for reasons of national defense or foreign relations, or any restricted
data to wit: more than 75 classified United States Department of State cables, with the intent to
use such information against the interests ofthe United States;
Comment: Inaccurate statement of the law. The United States is not required to prove that the
accused obtained information "with the intent to use such information against the interests of the
United States." See S. Rep. No. 104-357, at 2, 13 (1996).
Court Definitions
(I) Exceeding Authorized Access to a Computer

APPELLATE EXHlBlT_iMPAGE REFERENCED:
PAGE_OF
PAGES

22670

The first element that the government must prove beyond a reasonable doubt is that the accused
accessed a computer with authorization, but exceeded his authority in accessing the information
in question.
In this case, the government charges that the accused, while authorized to access the computer,
exceeded his authority in accessing the information in question. Under the statute, this requires
that the government prove beyond a reasonable doubt that the accused had access to the
computer, and used that access to obtain or alter information in the computer that the accused
was not entitled to obtain or alter. In other words, the term 'exceeds authorized access' applies
to 'inside hackers', individuals whose initial access to a computer is authorized but who access
unauthorized information or files. "
This element is not satisfied by mere misuse or misappropriation of information that the accused
was authorized to access. Nor does it apply where the accused accesses information that he was
authorized to access, but in an unauthorized manner. Rather, this element is only satisfied where
the accused is authorized to access the computer and obtains or alters information on that
computer that the accused is not entitled to obtain or alter.
Ifyou find that the accused had authorization to access the computer and to obtain the
information, you must find the accused not guilty.
Comment: This set of instmctions raises issues related to the extent of the holding in United
States V. Nosal, 676 F.3d 854 (9th Cir. 2012), and the Govemment's theory that the accused
"exceeded authorized access." The United States requests the Court consider its Response to the
Renewed Defense Motion to Dismiss for Failure to State an Offense: Specifications 13 and 14 of
Charge II as its objection to the above instmction is explained in detail.
(3) Obtaining Protected or Restricted Information
The third element that the government must prove beyond a reasonable doubt is that the accused
obtained information protected against unauthorized disclosure for reasons of national defense
or foreign relations or any restricted data, with the intent to use such information against the
interests of the United States.
Ifyou find that the information allegedly obtained by the accused was not protected against
disclosure for reasons of national defense or foreign relations and was not restricted data, or
that the accused did not have a reason to believe that the information could be used against the
interests of the United States or to the advantage of a foreign nation, you must find the accused
not guilty.
Comment: Inaccurate statement of the law. The language of the statute was amended in 1996
to track the scienter requirement in 18 U.S.C. § 793(e). The United States is not required to
prove that the accused obtained information "with the intent to use such information against the
interests ofthe United States." See S. Rep. No. 104-357, at 2, 13 (1996). Additionally, the
standard is not whether the accused had reason to believe that the information could be "used
against the interests of the United States...."

22671

/Ww^
MORROW
.PT, JA
Assistant Trial Counsel
I certify that I served or caused to be served a tme copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 6 July 2012.

iNMORROA
CPT, JA
Assistant Trial Counsel

22672

UNITED STATES OF AMERICA

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

)
)
)
)
)
)
)

GOVERNMENT RESPONSE TO
DEFENSE REQUESTED
INSTRUCTION: SPECIFICATION
1 OFCHARGE I I
6 July 2012

RESPONSE
COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny giving the Defense Requested Instruction for Specification
1 of Charge II. The proposed defense instructions are confusing and incomplete in that they do
not define necessary terms and phrases.
The United States objects to the defense instruction in its entirety, including any
instructions that incorporate a mistake of fact defense before the presentation of evidence.
The United States objects specifically to the following italicized portions:
Court Definitions
"Wanton " or "wantonly " includes "recklessness " but may connote willfulness, or a disregard of
probable consequences, and thus describes a more aggravated offense.
Comment: The United States maintains that "wantonly" does not necessarily describe a more
aggravated offense than "recklessness." See Govemment's Proposed Member Instructions, at 4.
A person causes intelligence to be published on the Internet when the person personally
publishes the intelligence on the Internet or knowingly or intentionally induces or sets in motion
acts by an animate or inanimate agency or instrumentality M'hich result in the publication ofthe
intelligence on the Internet.
Comment: This instruction will confuse the fact finder. There is no requirement that the act be
carried out "knowingly or intentionally." The act must be done wrongfully and wantonly. See
Charge Sheet.
.Maximum Punishment
Comment: The Government opposes the characterization of this offense as a violation of
Article 92. The Court has already ruled that Specificadon 1 of Charge II encompasses more
information than AR 380-5. See Appellate Exhibit LXX.X. It includes additional elements, such
as knowledge that the intelligence would be accessible to the enemy, which is an aggravator.
The offense is more closely-related to a violation of 18 U.S.C. § 793(e), which carries a
maximum penalty of ten years confinement.

APPELLATE EXHIBIT j l & ^ L .
Pm$« 1 ofPage(s) <3

* AQ)

22673

^Ri^!8^
MOR
'PT, 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 6 July 2012.

)DEAN MORROW
CPT, JA
Assistant Trial Counsel

22674

UNITED STATES OF AMERICA
GOVERNMENT RESPONSE TO
DEFENSE REQUESTED
INSTRUCTION: SPECIFICATIONS
2, 3, 5, 7, 9,10, 11, AND 15
OF CHARGE I I

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

6 July 2012

RESPONSE
COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny giving the Defense Requested Instruction for Specifications
2, 3, 5, 7, 9, 10, 11, and 15 ofCharge 11.
The United States objects to the defense instruction in its entirety, including any
instructions that incorporate a mistake of fact defense before the presentation of evidence.
The United States objects specifically to the following italicized portions:
Court Instructions
In Specifications 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II, the accused is charged with the offense
of Espionage, a violation of 18 U.S.C. Section 793(e). To find the accused guilty ofthis offense
with regards to Specification 2, you must be convinced hy legal and competent evidence beyond
a reasonable doubt of the following five (5) elements:
Comment: The accused is not charged with Espionage. The accused is charged with
Transmitting National Defense Information under 18 U.S.C. § 793(e).
Possession
A person has "unauthorized" possession ofsomething ifhe is not entitled to have it.
Comment: This instruction will confiise the fact finder. The accused was an all-source
intelligence analyst forthe Army and had access to the national defense infonnation at issue, An
individual has unauthorized possession of infonnation ifthey possess the infonnation in a
location which is contrary to law or regulation for the conditions of their employment. See
Enclosure 1 to the Govemment's Proposed Member Instructions.
Information Related to the National Defense
However, only information ofthe type which, ifdisclosed, could threaten the national security of
the United States meets the definition ofinformation "related to the national defense "for the
purpose ofthis section. The connection must not be a strained one or an arbitrary one. The
relationship must he reasonable and direct. Further, the type ofharm that disclosure ofthe
information is likelyto cause must be endangerment to the environment of physical security
1

APraJXATE EXHiBrrjCx^
Page I of Pagets) 3

iX(C'5^3€)

ClAO

22675

which a functioning democracy requires. Finally, the Government must prove beyond a
reasonable doubt that disclosure ofthe information would be likely to cause imminent serious
infury to the United States. Ifthe disclosure of this information does not pose this threat of
imminent serious injury to the United States, then it is not information relating to the national
defense.
Comment: To the Govemment's knowledge, this instruction has never been given in a
prosecution under § 793. The instruction is an inaccurate characterization of the law. The
language, in part, appears to have been drawn from dicta in the concurring opinion of Judge
Wilkinson in (/mzWAafg^ v. Afon.yoM, 844 F.2d 1057, 1082 (4th Cir. 1988). Some ofthe
language ("imminent serious injury") appears to have been drawn from dicta in New York Times
Co. V. United States, 403 U.S. 713, 726-27 (1971), an unrelated case that considered the
Government's attempt to prevent press entities from publishing the "Pentagon Papers."
Additionally, the Government must prove beyond a reasonable doubt that the Government
closely held the information and that the accused knew the information M'CIS closely held. To do
this, the Government must prove at least two things: f l ) that the information was classified and
(2) that the information was not otherwise available to the public. I f , however, the information is
lawfully accessible to anyone willing to take pains to find, to sift, and to collate it, you may not
find the accused guilty of espionage under this section. Only information relating to our
national defense which is not available to the public at the time ofthe claimed violation falls
within the prohibition ofthis section.
Comment: To the Govemment's knowledge, this instruction has never been given in a
prosecution under § 793. The instruction is also an inaccurate statement of the law. See
Enclosure 1 to the Govemment's Proposed Member Instructions: Morison, 844 F.2d at 1071-72.
The United States is not required to prove that infomiabon is classified in order to prove that the
infonnation was closely held, and thus related to the national defense. The fact that national
defense information is classified is probative of whether that information was closely held. See
Enclosure 1 to the Govemment's Proposed Member Instructions.
Information could be used to Injury of the United States
.idditionally, the likelihood ofthe information being used to the injury of the United States or to
the advantage of any foreign nation must not be too remote, hypothetical, speculative, farfetched or fancifid. Rather, the information must pose a legitimate danger of being used to the
injury ofthe United States or to the advantage of any foreign nation, such that an accused knew
or should have known about the information's capability to be used in this manner.
Comment: To the Govemment's knowledge, this insfruction has never been given in a
prosecution under § 793 and is not consistent with the law, as drafted. Secfion 793 requires the
United States to prove the accused knew or should have known the information "could be used to
the injury of the United States or to the advantage of any foreign nation" and does not require the
United States to prove that the infonnation poses a "legitimate danger of being used...." Further,
there is no requirement that the United States prove the accused knew or should have known of
"the information's capability to be used in this manner."

22676

Jk>D^



/^DEAN MORROW
'xPT, JA
Assistant Trial Counsel

1 certify that 1 served or caused to be served a true copy ofthe above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 6 July 2012.

Bx. /^W**-^
DEAN MORROW
T, JA
Assistant Trial Counsel

22677

^NITF^D^TATF^^OF AMERICA

)

v.

)

)

Prosecution supplemental Re^pon^e

)

Manning, Bradley F^^
PECU^^^Army,
HHCU^^^ArmyGarrison,
JointBaseMyerHendersonHall
EortMyer,Virginia 222II

)
)
)
)
)

to Defense Motion to Compel Discovery ^2
9July2^I^

RELIEE^OUGHT
The prosecution respectfully requests the Court deny,in part, the Defense Addendum to
Defense Motion to Compel Discovery ^2 (hereinafter "Defense Motion") insofar as the defense's
request consists of the following three categories of information that are not relevant and
necessary for production under RCM 703:
(1) Information that predated, and contributed to, the Department of State (the
"Department") draft damage assessment dated August 20II:
(2) Purely administrative records: and
(3) Personally Identifiable Information (PIl) of persons negatively affected by the
unauthorized disclosures, to include those persons identified by the WikiLeaks Persons at Risk
Group (WPAR) as being put at risk.
This Supplemental Response also serves as notice to the Court for which of the requested records
exisL
BURDF^NGF^PF^R^UA^IONANDBURDF^NOF^PROOF
As the moving party,the defense bears the burden of persuasion and must prove any
factual issues necessary to decide this motion byapreponderance of the evidence. See Manual
forCourtsMartial, United States, RCM 905(c)(20I2)
FACT^
OnlSMay 2012, the prosecution made the Department'sdraft damage assessment dated
August 20IIavailablc to the defense for inspection.
On7Junc 2012, three Department witnesses,specifically Ms.Marguerite Coffey,Ms.
Rcna Bitter, and Ms.Catherine ^rown, testified duringamotions hearing in the above captioned
courts martiaL The witnesses referenced the below records in their testimony and testified that
they were unaware whether the below records remain in existence:
(I) Written assessments produced by the Chiefs ofMission used to formulateaportion
ofthe draft damage assessment completed in August of 2011:
APPELLATEEX1^I8IT^^
PAGEREFERENCED:
^
PAGE
GF
PAGE^

22678

(2) Written Situational Rcporis produced by the WikiLeaks Working Group between
roughly 28 November 20I0andI7December 2010:
(3) Written minutes and agendas of meetings by the MitigationTeam:
(4) Information Memorandum for the Secretary of State produced by the WPAR:
(5) Amatrix produced by WPAR to track idcntifred individuals:
(6) Formal guidance produced by WPAR and provided to all embassies, including
authorized actions for any identifrcd person at risk:
(7) Information collected by the Director of the Office of Counter Intelligence and
Consular Suppori within the Department of State regarding anypossible impact from the
disclosure of diplomatic cables: and
(8) Anyprepared written statements for the Dcpartmcnt'srcporting to Congress on7and
9Dcccmbcr2010
Sec Appellate Exhibit (AE)CXXXXIL
On7Junc 2012,the prosecution requested the Court delay the Court'smling on the
Defense Motion to Compel Discovery ^2 for information pertaining to the Department for thirty
days to search for the above referenced records. See id.
On7June 2012, the defense submitted its Addendum to Defense Motion to Compel
Discovery ^2 and requested the above records. The defense requested that the prosecution
disclose this material under RCM 701(a)(2)or, in the altemative, RCM 703.^ The defense also
requested that the prosecution disclose this material under RCM 701(a)(6). See id.
On8Junc 2012, the Couri ordered the prosecution to immediately begin the process of
searching for and inspecting the above records. The Court ordered the prosecution to notify the
Court no later than9July 2012 which of the above records exist and, for those records that do
exisLfileasupplemental response to the Defense'sMotion to Compel Discovery ^2. Sec id.:
seea1soAECXLVIIat7.
The Department searched for the above records and information and made all found
material available at the Department for review by the prosecution. The prosecution reviewed all
the provided materia1(exccpt where otherwise annotated bc1ow)at the Department and hereby
notifies the Court of its findings:
' The job title of the individual is the Director of the Office of Counter Intelligence and Consular Support within the
Bureau of Intelligence and Research, not the Director of the Office of Counterintelligence.
^ On 22 June 2012, the Court ruled that "[e]vidence maintained by other government agencies, whether aligned with
the Prosecution or not, are not within the control ofmilitary authorities lAW RCM 701(a)(2)." AE CXLVII at 5.

22679

(1) The written assessments produced by the Chiefs ofMission used to formulatea
portion of the draft damage assessment completed in August of 20IIconsist largely of cables
sent to, and from, affected embassies relating to the cables released up until August of 2011:
(2) The written Situational Reports produced by the WikiLeaks Working Group,a24^7
working group composed of senior officials from throughout the Department designed to
monitor the irrtmcdiatc crisis stemming from the released cables and coordinate the Department's
response, between roughly28 November 2010and17December 2010, consist of the then real
time developments regarding cables released up until that time, summaries of published news
articles relating to the cables released up until that time, and updates from select regions of the
world regarding the cables released up until that time:
(3) The written minutes and agendas of meetings by the MitigationTcam,agroup
created to address the policy,legal,security,counterintelligence, and information assurance
issues presented by the release of these documents, consist of formal meeting notes, PowerPoint
slides of administrative matters and substantive issues, and documentation on information
exchanged with other federal organizations:
(4) The Information Memoranda for the Secretary of State produced by WPAR,agroup
tasked with identifying persons referenced in released cables who are at risk, providing guidance
to local embassies who request assistance on behalf of those persons, and tracking all persons at
risk, consist ofbackground information relating to the creation ofthe WPAR, any assistance
requested by embassies from the WPAR (to include examples of requested assistance), regional
reports by bureaus, guidance to embassies on how to identify and assist persons at risk,
summaries ofWPAR'sduties,and the status of reviewed cables related to persons at risk:
(5) The matrices produced by WPAR consist ofPIIofindividuals and their family
members who are identified by WPAR as persons at risk based on the released cables to track the
status of these individuals:^
(6) The formal guidance produced by WPAR and provided to all embassies, including
authorized actions for any identified person at risk consists of procedures for embassies seeking
assistance fromWPAR, the steps the Department takes shot^ld someone request relocation,
additional options available to the embassies, andalistofbest practices:
(7) The information collected by the Director of the Office of Counter Intelligence and
Consular Support within the Department regarding any possible impact from the disclosure of
diplomatic cables consists of translated foreign opcn source intemet articles, select cables, the
Department'sdraft damage assessment dated August 2011to which the defense already has
access, regional assessments relating to the released cables, and no other versions of the draft
asscssment:^and

^ Eor the purpose of this Motion, the prosecution considers PlI to include any information that could be used by
another to identifyaspeeitie individual.

22680

(8) The Department did not find any prepared written statements for the Depariment's
reporting to Congress on7and9December 2010. Based on those dates and Under Secretary
l^enncdystestimony,only informal discussions would have occurred between Department
officials and members of Congress, therefore there are no written statements or other documents.
^ITNE^^E^^VIDENCE
The prosecution docs not request any witnesses or evidence be produced for this
response. The prosecution respectfully requests that the Couri consider the Appellate Exhibits
referenced herein.
LF^GALAUTHGRITV AND ARGUMENT
The Due Process Clause of the Fifth Amendment requires the prosecution to disclose
evidence that is favorable to the defense and material to guilt or punishmenL SeeBradyv.
Mary^1and,373 US 83 (1963) RCM 701(a)(6) states that the prosecution "shall, as soon as
practicable, disclose to the defense the existence of evidence known to the trial counsel which
reasonably tends to negate the guilt of the accused of an offense charged, reduce the degree of
guilt of the accused of an offense charged, or reduce the pt^nishment." RCM 701(a)(6). The
prosecution will disclose to the defense, or submit to the Couri for ^7^^^^^^^ review for limited
disclosure under MRE 505(g)(2). any records found that are discoverable under Brady or RCM
701(a)(6), for which theaprivilege under MRE 505(c)is not claimed.
RCM 703(f) states that "^ejachpariy is entitled to the production of evidence which is
relevant and ncccssary"RCM 703(f)(1): see also United Statesv.Grancr. 69 M.J.104. 107
(C.A.A.F.2010)(stating that RCM 703 is "grounded on the fundamental concept of relevance"):
MRE 401 (defrning relevant evidence as "evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence"). The discussion to the mlc states that "^rjclcvant
evidence is necessary when it is not cumulative and when it would contribute toaparty's
presentation of the case in some positive way onamatter in issue." RCM 703(f)(1),discussion.
Evidence that is material to the preparation of the defense under the control of other govemment

agencies can be relevant and ncccssaryfordiscovcry,requiring production of the evidence under
RCM 703. See AE CXLVII at5. The burden is on the defense for production of evidence
outside the control of military authorities for discovery under the relevant and necessary standard
inRCM 703 Sec RCM 905(c): sccalsoAECXLVlIat5
For the reasons below, the following information within the above categories are not
relevant and necessary for production under RCM 703: (I)information that predated, and
contributed to, the Departmcnt'sdraft damage assessment dated August 2011:(2) purely
administrative records: and (3) PII of persons negatively affected by the unauthorized
disclosures, to inclttdc those persons identified by WPAR as being put at risk.

^ The prosecution did not Imish its review of all the cables in this category based on the volume of information.
The prosecution estimates that it has approximately 500 more cables to review.

4

22681

1:

ABSENTTHATWHICFIIS DISCOVERABLE UNDERBRADVORRCM
701(a)(6), INEORMATIONTHATPREDATED,ANDCONTRlBUTED TO,
THEDEPARTMENT'SDRAFTDAMAGEASSESSMENTISNOT
NECESSARVBECAUSE ITIS CUMULATIVETO THE DEPARTMENT'S
DRAFTDAMAGEASSESSMENTWHICHTHEPROSECUTIONHASMADE
AVAILABLETO THE DEFENSE FORINSPECTION

"Relevant evidence is necessary when it is not cumulative and when it would contribute
toaparty'sprcscntation of the case in some positive way onamatter in issue." RCM 703(f)(1),
discussion. On18May 2012 and based on the Courtis mling, the prosecution made the
Departmcnt'sdraft damage assessment available to the defense for inspection. Absent that
which is discoverable under Brady or RCM 701(a)(6), information that predated, and contributed
to, the Departmcnt'sdraft damage assessment is cumulative, thus not subject to production under
RCM 703
The following categories contain information that predated, and likely contributed to, the
Departmcnt'sdraft damage assessmenL and therefore arc cttmulativc:
(1) Written assessments produced by the Chiefs ofMission used to formulatcaportion
ofthe draft damage assessment completed in August of 2011:
(2) Written Situational Reports produced by the WikiLeaks Working Group between
roughly 28 November 2010andl7Dcccmbcr 2010:
(3) Written minutes and agendas of meetings by the MitigationTcam:
(4) Information Memorandum for the Secretary of State produced by WPAR:
(5) Matrices produced by WPAR to track identified individuals: and
(6) Formal guidance produced by WPAR and provided to all embassies, including
authorized actions for any identified person at risk.
IL

PURELVADMINISTRATIVE RECORDS ARENOTRELEV ANT AND
NECESSARV

Relevant evidence "means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
itwouIdbcwithoutthecvidencc"RCM401:scca1soGrancr,69MLat108(RCM703 is
"grounded on the fundamental concept of relevance"). "Relevant evidence is necessary when it
is not cumulative and when it would contribute toaparty'sprcscntation of the case in some
positive way onamatter in issue." RCM 703(f)(1), discussion.
Aportion of the written minutes and agendas of meetings by the MitigationTcam contain
purely adtmnistrativc records without any substantive value or that have no identiftabic
connection with the relevant mitigation effort. Such records are irrelevant and would not

22682

"contribute toaparty'sprcscntation of the case in some positive way,"thus not subject to
production under RCM 703.
UL

PERSONALLVIDENTIEIABLE INFORMATION OFPERSONS
NEGATIVELVAFFECTEDBVTHEACCUSED'SCHARGED
MlSCONDUCT,SPECIFlCALLVANVSUCHINEORMATIONLlSTEDON
THEMATRICES PRODUCED BVTHEWII^lLEAl^S PERSONS ATRISl^
GROUP,ISNOTDlSCOVERABLEORRELEVANTANDNECESSARVFOR
PRODUCTION

PH of persons negatively affected by the accused'schargcdmisconducL particularly
those persons put at risk based on the released Department cables, is not discoverable under
Brady or RCM 701(a)(6). Further, such information is not relevant and necessary under RCM
703 because such information, ^7^^^^ ^^^7^,wou1d not "contribute toaparty'sprcscntation of the
case in some positive way onamatter in issue." Even if material to the preparation of the
defense, any PIl of persons put at risk based on the released Department cables is not material to
the preparation of the defense to the extent that it is relevant and necessary.
F^:

SHOULDTHECOURT ORDER THEPRODUCTIONOFTHEABOVE
RECORDS, THEPROSECUTIONREQUESTS NO LESS THAN 45 60 DAVS
TONOTIFVTHECOURTWHETHERTHEPROSECUTIONWILLSEEI^
LIMITED DISCLOSURE IAWMRE505(g)(2)ORCLAIMAPRlVlLEGEON
BEHALFOFTHEDEPARTMENTlAWMRE505(c)AND TO PRODUCE
THERECORDS TOTHEDEFENSE,lENECESSARV

Assuming,
the Court orders production of the above records or some portion
thereof, the prosecution requests no less than 45 60 days to notify the Court whether the
Department will seek limited disclosure under MRE 505(g)(2)orclaimaprivilcgc under MRE
505(c)andto produccthcdocumcnts under RCM 701(g),MRE505(g)(2), or MRE505(c),if
necessary. Based on the prosccutionsrcvicw,the prosecution estimates that the above records
total more than5,000 documents,alargc majority of which are marked classified. The
prosecution estimates that the Department will need no less than 45 60 days to review those
documents for which production is ordered to determine whether it will seek limited disclosure
orclaimaprivilcgc.
CONCLUSION
For the above reasons,the prosecution respectfully requests the Court dcny,in part, the
Defense Motion insofar as the defense'srequest consists of the following three categories of
information that arc not relevant and necessary for production under RCM 703:
(1) Information that predated, and contributed to, the Departmcnt'sdraft damage
assessment dated August 2011:
(2) Purely administrative records: and

22683

(3) PIl of persons negatively affected by the unauthorized disclosures, to include those
persons identified by WPAR as being put at risk.

LHUNTER WH^TE
CPT,JA
Assistant Trial Counsel

Icertify thatlserved or caused to be servedatme copy of the above on Mr. David
Coombs, Civilian Defense Counscl,yia electronic mail, on9July 2012.

LHUNTER WHVTE
CPT,JA
AssistantTrial Counsel

22684

theguardian
AP review finds no WikiLeaks sources threatened


AP foreign, Saturday September 10 2011

CASSANDRA VINOGRAD
Associated Press= WASHINGTON (AP) — Federica Ferrari Bravo's story of meeting American diplomats in
Rome seven years ago hardly reads like a James Bond spy novel or a Cold War tale of a brave informant
sharing secrets to help the United States.
So it came as a something ofa surprise to her to hear that in one ofthe 250,000-odd State Department
cables released by the anti-secrecy website WikiLeaks, she was deemed a source so sensitive U.S.
officials were advised not to repeat her name.
"I don't think I said anything that would put me at risk," the Italian diplomat said.
There are similar stories involving other foreign lawmakers, diplomats and activists cited in the U.S.
cables as sources to "strictly protect."
An Associated Press review ofthose sources raises doubts about the scope ofthe danger posed by
WikiLeaks' disclosures and the Obama administration's angry claims, going back more than a year, that
the revelations are life-threatening. U.S. examples have been strictly theoretical.
The question ofwhetherthe dire warnings are warranted or overblown became more acute with the
recent release all ofthe 251,287 diplomatic memos WikiLeaks held.
Tens ofthousands of confidential exchanges were dumped, emptying a trove ofdocuments. They were
released piecemeal since last year, initially with the cooperation of a select group of newspapers and
magazines that blacked out some names and information before publishing the documents.
The latest cables were published in full, without names blacked out. State Department spokeswoman
Victoria Nuland branded the action "irresponsible, reckless and frankly dangerous," and the U.S. said the
release exposed the names of hundreds of sensitive sources.
WikiLeaks founder Julian Assange has blamed Britain's Guardian newspaper for publishing a secret
encryption code, allowing intelligence agencies to access the cables and forcing WikiLeaks to provide the
people affected the same information.
But the AP's review ofthe sources found several ofthem comfortable with their names in the open and
no one fearing death. Others are dead, their names cited as sensitive in the context of long-resolved

0^

APPELLATE EXHlBlTii^^^Li/
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OF
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22685

conflicts or situations. Some have written or testified at hearings about the supposedly confidential
information they provided the U.S. government.
The AP survey is selective and incompleted it focused on those sources the State Department seemed to
categorize as most risky.
The AP did not attempt to contact every named source in the new trove.It'sgenerally up to the
embassies themselves to decide which identities require heightened vigilance, officials say.
HadziraHamzlc,a73yearold Bosnian refugee, wasn't bothered about being identified as one of
thousands ofvictims from the Balkan wars ofthe l^^Os.
"1 never hid that,"she told the AP."It is always hard whenlhave to tell about howlhad been raped, but
that is part ofwhat happened andlhave to talkabout it."
In Asia, former Malaysian diplomat Shazryl5skay Abdullah was shocked that an "unofficial lunch
meeting" he had several years ago withaU.S. official meant his name ended up onaformalreporL But
he said his role in southernThailand peace talks was well known."I don't see why anyone would come
after me,"Shazryl said.
Ferrari Bravo's subject matter was also by no means mundane.Aveteran of her nation'sembassy in
Tehran, Ferrari Bravo worked at the time on the Italian Foreign Ministry's Iran desk and discussed with
the U.S. hergovernment'sview ofthe Iranian nuclearstandoff She urged continued dialogue.
"There is nothing that we said that was not known to our bosses, to our ministers, to our heads of
state,"she said.On having her identity protected, she said: "We didn't ask. There is nothing to protect."
U.S. officials say they have two criteria for sensitive sources. The first deals with people in totalitarian
societies or failed states who could be imprisoned or killed, or perhaps denied housing, schooling, food
or other services if exposed as having helped the United States.
The State Department also has sought to censor names of people who might lose their jobs or suffer
major embarrassment even in friendly countries, ifthey were seen offering theU.S. candid insights or
restricted information.
One such case involved the dismissal in December ofatop aide to German Foreign Minister Guido
Westerwelle after he provided details on coalition talksand debates over issues such asU.S.nuclear
weapons in Furope.
Still, the total damage appears limited and the State Department has steadfastly refused to describe any
situation in which they've feltasource's life was in danger.Theysayahandful of people had to be
relocated awayfrom danger but won't provide any details on those few cases.

22686

Units throughout the department have been scouring the documents since last yearto find examples
where sources are exposed and inform them that they may be "outed."Some, such as l-lamzic,Sharzyl
and Ferrari Bravo, saythey were never contacted.Presumably,endangered individuals would have been
prioritized.
Clearly,sensitivities depend on contexL Revelations that may cause personal or political discomfort fora
U.S.embassy contact in Western 5urope may be lifethreateningforan informant in an undemocratic
nation. In the cables, they may both be "strictly protected" sources, highlighting relative danger levels in
different places.
In Vietnam, the U.S. seemed to be dealing with sources whose names demanded vigilance: the wife ofa
dissident sentenced to five years in prison^aBuddhist leader condemning the arrest ofafellowpriesLa
dissident who says people "held his family hostage" until he renounced his activism^aChristian preacher
complaining of police pressure on him to renounce his faiths anotherwhosi^eaksofacolleague forcibly
sent toamental institute.
ASyrian human rights activist warned the U.S.ofalooming crackdown on antigovernment activists as
far back as 200^.Ifthe activist wasn't threatened by the disclosure last year,he may be nowthat the
country is in the throes ofabrutalfivemonth security operation.
In Mexico, the term "strictly protect" appeared to be attached to interlocutors indiscriminately,even
when officials offered onlyflattering assessments oftheir government or said little that wasn't common
knowledge.It perhaps makes more sense in the context ofacountry where organized crime networks
have essentially fought an insurgency against the governmenL where allowingavalued source's name
to get out could affect that person's safety.
Assange, an Australian, has defended his actions by saying no one has died asaresult ofWikiLeaks.
Current and former American officials saythat argument misses the point.
Making people think twice before providing the U.S. with information^or simply refuse ever again to
help^hurts the good causes of humanrightsand democracy that American officials are promoting,
they argue.
Take Arnold SundquisLaSwede whose life isn't in danger.He provided the U.S. embassy with sensitive
details on an Iranian attempt to buy helicoptersand said he was unhappy that his actions were now
public.Last year,Swedish media with access to the WikiLeaks trove reported on the incident but didn't
mention him by name.
"ltiswhatitis,"hesaid."lcan'tdoanythingaboutit."
But will he or others inasimilar situation, be as ready to help American authorities again7

22687

Venezuelan journalist Nelson Bocaranda thinks noL His identity was exposed inadocument describing
how he told the U.S. ambassador in 200^ that according to one of his sources, Colombian rebel leaders
had visited Caracas for secret meetings with seniorVenezuelan government officials. Bocaranda
published the account in one of his newspaper columns.
"I feel betrayed by WikiLeaks,"Bocaranda told the AP on Friday.But he said that asajournalist it's
natural for him to talk with diplomats from various countries."l think the ones who have been betrayed
basically are the American diplomats,"he said.
"It's going to be more difficult forthembecauselthink no one is going to want to talk forfear of coming
out in print with their name,"he said, adding that would apply those who might otherwise supply
sensitive information.
He said he doesn't feel his work or personal security face additional threats asaresult of his name being
exposed but said he suspects President Hugo Chavez'sgovernment could try to "cast doubts on me, to
say thatlamamember ofthe CIA."
Bocaranda said that he has nothing to hide and that the information he publishes in his newspaper
columnsand on the Internet is public."I don't think my sources are going to shut me out,"he said.
Other governments have echoed the U.S.criticism ofWikiLeaks, saying it jeopardizes invaluable
diplomacy^the exchanges that aim to promote understanding, avoid war and improve global security.
The angerfrom Assange's home nation, Australia, was prompted not by the release of sources, but of 23
Australians who had been in contact withayemenbasedalOaida offshoot and were being monitored.
Still,agovernment statement couldn't point toadirect threat from the disclosure, onlyapotential
danger.
"The large scale distribution of hundreds of thousands of classified United States government
documents is reckless, irresponsible and potentially dangerous,"AustralianAttorneyGeneral Robert
McClelland said.

Vinograd reported from London. Associated Press writers Nicole Winfield in Rome^ Sean yoong in l^uala
Lumpur,Malaysia^SabinaNiksic in Sarajevo, Bosnian lanJames in Venezuelan and l^arlRitter in
Stockholm contributed to this report.

22688

UNITED STATESOF AMERICA

)
^
)
)
)|
^
)
)
^

Manning, Bradley E.
PFCUS.Army,
HHC,U.S.ArmyGarrison,
JointBaseMyerHendersonHall
Fort Myer, Virginia 22211

Prosecution Proposed
Case Calendar
Update
29^une20I2

1. The Court is currently scheduling Article 39(a) sessions with the following default schedule at
the request ofthe parties: two weeks fbr parties to file motions: two weeks fbr parties to f^le
responses^ five days fbr parties to file replies: and one week fbr the Court to review all pleadings
before the start ofthe motions hearing. The time fbr filing replies was added after the first Article
39(a) session on 15-16March2012bccausc the Court received reply briefs the day before that
session, the parties desire to continue to file replies, and the Court requires time to consider them.
2. The Prosecution Proposed Case Calendar Update, dated 29 June 2012, is based upon the same
assumptions listed in the Prosecution Proposed Case Calendar(AE I) and all Prosecution Proposed
CascCalcndar Updates and Supplements (incIudingAE XX, XLV,XLVL CXIII, CLI, and the
Prosecution Proposed Case Calendar Update, dated 22 June 2012). Tothe extent these
assumptions prove to be incorrect or too ambitious, the schedule will be correspondingly longer.
3. Scheduling dates and suspense dates are set forth below. The trial schedule will be reviewed
and updated as necessary at each scheduled Article 39(a) session.
a. Immediate Action (21 February 20I2-I6March 2012)
b. Le^al Motions, excludin^Evidentiary Issues (29 March 2012-26 A^ril 2012)
c. Le^alMotions(I0May2012^^une2012)
d. Interim Pretrial Motions f2^une 2012
e. PretrialMotions f7 ,Iune 2012
(A)
(B)
(C)
(D)

2^ ^une 2012)

20Tuly 2012)

Filing: 22 June 2012
Response: 6JuIy2012
Reply: IIJuly2012
Article 39(a): 16 20 July 2012

(1) Defense Motion to Compel Discovery ^2 (Department of State Material)
(A)Filing:7Junc2012
See Appellate Exhibit (AE) CXLII. AE CXLVII changed the response date to 9 July 2012.

APPELLATE E X H l B l T i l i
PAGEREFERENCED:,
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22689

(B) Rcsponse:9July2012
(C) Reply: 11July2012
(D) Article 39(a): 16 20 July 2012
(2) Goyernment Initial Witness List
(A) Filing: 22June2012
(3) Proposed Members Instructions for All Charged Offenses
(4) Witness Lists for Article I ^
(A) Defense Witness Lisfs:3July 2012^
(B) Govemment Objections (if any):10July 2012
(C) Dcfense Motion to Compel (ifany): 13 July 2012
(D) Article39(a): 16 20JuIy2012
(5) PreliminaryDeterminationsonAdmissibility
(6) Defense Motion to Dismiss All Charged Offenses under I^U^S^C.I030(a)(I)^2
(7) Maximum Punishment for Lesser Included Offenses
(8) GovernmentMotionforSubstitutions under MRF^^0^(^)(2) for FBI Impact
Statement
(9) Government Motion for Modification of Court Orders Government Motions
ProtectiyeOrder(s)dated24April2012
(10) Snpplemental Filings on Actual Damage on the Merits
(A) Filings: 21 June 2012
(11) ProposedO^^^^^^^^^^^^^
(A) Defense Filing:6July 2012
(^) Prosecution Responses I I July2012
(B) Article 39(a): 16 20 July 2012^
(C) O^^^^^^^^^^^^^^^Octailcd Members and Alternates: 24 July 2012
(D) Suspense fbr Detailed Members and Altemates to Respond: 3August2012
(12) Updated Proposed Case Calendars
(A) Filing: N^A

^ The Ignited States moved the date from^July 2012 to^July 2012 to allow more than one day to eontaet the
witnesses after the defense providesasynopsis of the expected testimony sufficient to show its relevance and
neeessity.
^ Any disagreements between the parties'^uestionnaires will be resolved at theI^-20 July 2012 Artiele^9(a).
^ The parties will be ready to discuss the ease calendar at the 27-^lAugust 2012 Article ^9(a) session.

2

22690

(B) Article 39(a): 27-31 August 2012
f. Interim Pretrial Motions (10 August 2012 (a), 1300)
g. Pretrial Motions (20 Julv 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) Article 13
(A) Filing: 27 July 2012^
(2) Motions in Limine
(3) Motions to Suppress (if any)
(4) Defense Notice of Intent to Disclose Classified Information under MRE 505(h)(1)
(5) Notification to the Court of Anticipated Limited Disclosures under MRE
505(g)(2) or Notification to the Court of Privilege under MRE 505(c) for FUes under the
Possession Custody, or Control of Military Authorities based on the Court's 22 June 2012
Ruling
(A) Filing: 20 July 2012
(6) Notification to the Court of Anticipated Limited Disclosures under MRE
505(g)(2) or Notification to the Court of Privilege under MRE 505(c) for FBI Investigative
File or Impact Statement based on the Court's 22 June 2012 Ruling
(A) Filing: 25 July 2012
(7) Government Filing for In Camera Proceeding lAW MRE 505(i) with Notice to
Defense (if Privilege is Claimed) based on the Court's 22 June 2012 Ruling
(A) Filing: 25 July 2012
(8) Disclosure to Defense or Disclosure to the Court under RCM 701(g)(2) or MRE
505(g)(2) of•All
All Information
Information Subject
Subject tot the Court's 22 June 2012 Ruling^
(A) Filing: 3 August 2012

^ The defense agreed to the filing date ofone week em-lier to give the United States the necessary time to respond.
^ This disclosure includes all files that involve investigation, damage assessment, or military measures that are under
the possession, custody, or control of military authorities; all FBI files that involve investigation, damage assessment,
or mitigation measures; the ODNI/ONCIX damage assessment; and evidence the United States will introduce on the
merits and during sentencing.

22691

(9) Disclosure of AllRemaining Unclassified orClassified (under MRE 505(g)(1))
Brad^ Material and Disclosure under MRE 701(g)(2) or MRE 505(g)(2) of AllRemaining
Classified Brady Material
(A)Filing:3August2012
(10) Witness Lists for Speedy Trial, including Article 10
(A) Witncss Lists: 10August2012
(B) Govemment Objections (ifany): 17August2012^
(C) Defense Motion to Compel (ifany): 22 August 2012
(D) Article39(a):27-31August2012
(11) Updated Proposed Case Calendars
(A) Filing: N/A
(B) Articlc39(a):27 31 August2012
h. InterimPretrialMotions (19 September2012)
i.

PretrialMotions (7 Se^tember2012

12 October 2012)

(A) Filing: 14Septcmbcr2012
(B) Rcsponse:28 September 2012
(C) Article39(a):1519Octobcr2012
(1) SpeedyTrial, including Article 10
(A)Filing:7Scptcmbcr2012^^
(2) Witness List (Defense and Supplemental Government)
(A) Filing: 14Septcmbcr2012
(B) Govemment Objection to Defense Witnesses: 21 September 2012
(C) Motion to Compel Production:28 September 2012
(D) Rcsponse:3Octobcr2012
(E) Article 39(a):15190ctober 2012
(3) Defense Notice of its Intent to Offer the Defense of Alibi, Innocent Ingestion, or
Lacl^ OfMentalResponsibilitylAWRCM 701(b)(2)
^ This production includes any material discovered while searching the files,if any,oftheI^resident'sInteIIigence
Advisory Board, and all material that is not subject to motions to Compel Discovery or I^roduction. Ifthe Court rules
that any of the proposed summaries under ^R^^0^(g)(2)are not acceptable, the prosecution will need additional
time to obtain approval foradifferent substitution.
^ The Court and the parties discussed an objection date of22 August 2012 in the 25 June 2012 R^C^ ^02 Conference;
however, the United States set the date earlier to allow the defense the opportunity to fileamotion to compel, if
necessary.
^ The parties will be ready to discuss the case calendar at the 27-^1August 2012 Article ^9(a)session.
The defense agreed to the filing date ofone week earlier to give the United States the necessary time to respond.

22692

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

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