Title: Volume FOIA 072

Release Date: 2014-03-20

Text: 23039

Volume 72 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

23040

FOR OFFICIAL USE ONLY
Commander's Handbook Distributed Common Ground System (DCGS-A)

Chapter 4
CONCLUSION
4-1. CONCLUSION
a. Access to the Intelligence Enterprise is through the DCGS-A. Commanders, at all
echelons, focus on achieving precise situational understanding. This places increased
emphasis on dynamic updates of the situation to support on-going operations,
contingency planning, development of force packages, and knowledge or awareness to
the Commander and staff DCGS-A provides the Commander the linkage to the three
Main Ideas of this Handbook: Reduced Risk, Flattened Network, and the Greatest Impact
at the Lowest Level. Commanders depend on the ability of the ISR system to surge/focus
collection and analysis efforts leading towards increased situational awareness thus
Reducing Risk. DCGS-A through a Flattened Network provides the capability to all
Commanders, especially the Lowest Level, to drive the intelligence process and to better
articulate their PIR. The ISR cycle can focus on these PIR and answers them in less time
through DCGS-As access to NRT information. DCGS-A provides the access to more
information, provides improved analytical tools, and leverages communications, which
lead to increased knowledge and awareness.
b. DCGS-A, the Army's Intelligence Flagship system, is in the hands of Soldiers
today and is relied upon by Commanders to help them in receiving timely, accurate
actionable intelligence thus enabling them to meet combat objectives. DCGS-A,
knowledge based, Commander driven. Intelligence for the Warfighter.
c. This Commander's Handbook for DCGS-A is a living document. It will continue
to evolve as the system continues to grow. This particular handbook is an overview of
the DCGS-A capabilities it provides primarily to the commander. It does not address any
particular version of DCGS-A, rather it address the benefits of employment of DCGS-A
as a whole.
d. The proponent of this publication is the U.S. Army Intelligence Center and Fort
Huachuca. We welcome your comments and recommended changes at any time. You
may email them directly to the proponent at james.harper(^us.army.mil or mail them to:
Commander, U.S. Army Intelligence Center and Fort Huachuca (ATZS-CDl-S), Fort
Huachuca, Arizona 85613-6000.

- 12-



ATTACHMENT



23042

UNCLASSIFIED ll FOUO

DEPARTMENT OF DEFENSE
US FORCES AFGHANISTAN
KABUL, AFGHANISTAN
APO AE 09356

USFOR-J2 2 July 2010

MEMORANDUM FOR Deputy Commanding General for Support, USFOR-A

SUBJECT: (U) Advanced Analytical Capability Joint Urgent Operational Need
Statement

1. lntelligence in theater do not have the tools required to fully analyze
the tremendous amounts of infonnation currently available in theater.

2. The impact of this shortfall is felt in almost every activity that intelligence
supports. cannot provide their commanders a full understanding of the
operational environment. Without the full understanding of the enemy and
human terrain, our operations are not as successful as they could be. This
shortfall translates into operational opportunities missed and lives lost.

3. The enclosed need statement describes the capabilities required to ensure our
have the tools needed to provide the best analysis required for success
in our tough COIN operations.

4. Point of contact is Mr. Pat McNieoe, J2 Collection and Requirements, DSN

SIPR email:



Enclosure

UNCLASSIFIED FOUO



23043

UNCLASSIFIED

JOINT URGENT OPERATIONAL NEED (JUON) REQUEST

(U) Title: USFOR-A Request for Advanced Analytical Capability in Afghanistan (U)
(U) Reference:

(U) Submitted by: USFOR-A J2 Collection and Requirements

(U) Date Certi?edlPrioritized by Combatant Commander:

(U) Relative Priority:

(UIIFOUO) General Description: US intelligence in Afghanistan have several
tools available to access the ever-increasing amount of intelligence and battle?eld
information residing in a myriad of databases. These tools provide access to the
information, some more readily than others, but provide little in the way of improved
analytical support. Advanced analytical tools are critical for providing the required
intelligence support to population-centric operations.

Current tools do not provide intuitive capabilities to see the relationships between a
wide variety of disparate sets of information. They do not allow easy viewing of the
information in multiple formats such as link diagram, geo-spatial, histogram, timeline,
time wheel and data reports. They do not provide significant network-wide collaborative
capabilities. They do not provide the ability to support |ow?bandwidth or frequently
disconnected users with a data sub-set tailored to their area of operations.

There is a critical need to enable in theater with these capabilities to provide
our commanders a better understanding of the complex COIN environment in which
they operate. Solving these data manipulation, visualization and understanding
requirements will signi?cantly improve our ability to successfully conduct population-
centric operations.

(UIIFOUO) Mission and Threat Analysis: Counterinsurgency operations are among
the most complex, especially in the Afghan environment. USFOR-A has been
challenged in this environment to fully understand the multi?faceted situation. The
enemy is able to take advantage of his ability to hide in plain sight in the population
because we have been unable to fully exploit the we already
have. Detainees with existing connections to the insurgency have been released
because we could not fully understand or exploit the information we held. Negative
in?uenoers are able to continue hindering progress because we are unable to fully
understand their methods and connections. Conversely, we don't know how many
opportunities to positively in?uence events have been lost due to our failure to maximize
our understanding of the environment.

UNCLASSIFIED
1



23044

UNCLASSIFIED

(UIIFOUO) Structuring and Organization of Capabilities: This JUON is a request
for a theater?wide web?based advanced analytical platform to store, organize, access,
retrieve and enable full understanding of intelligence and information from multiple large
disparate data sets. We require this capability on three networks: a small capability on
JWICS and larger?scale installations for SIPR and the Network (CXI).
The SIPR network should support SIPR REL for ACGU users. The capability should
provide a client-server architecture wherein users at headquarters or high?bandwidth
locations access a regional server using their existing workstation. Low?bandwidth or
frequently disconnected users should be provided a laptop capable of maintaining the
data and applications.

(UIIFOUO) Critical Performance Speci?cations:

(High Priority) The system will interface with and allow rapid access to existing
intelligence and information databases such as CIDNE, DCGS-A, BATS, M3,
TIGR, Theater Exploitation Database (TED) and a wide variety of other data
sources.

a (High Priority) The system will provide intuitive capabilities to see the
relationships between and interact with a wide variety of disparate sets of
information in multiple different and ?exible views. Speci?cally the system will
provide the following integrated functionalities:

The ability to query multiple data sets (held centrally or imported locally via
database or spreadsheet)

The ability to easily view and manipulate this information in multiple
formats (per below) simultaneously or to easily switch between them with
one button click to faci|itateIim_prove understanding

The ability to create I update I view link diagrams inside different viewing
environments such as browser, word documents, map display or the link
diagram itself (without onerous detailed entries such as Analyst Notebook)

The ability to automatically create a variety of histogram views based on
existing data elements (for example, CIDNE IED data auto?creates
histograms for IED type, province, district, target, etc.)

The ability to show data in a scalable geospatial view, with multiple
mapfimagery background selections, to quickly create density maps and
to be able to query, select and filter data from this view

0 The ability to show data in timeline view, scalable to period desired and to
be able to select and ?lter data from this view

The ability to show data in time wheel view with multiple selections for the
categories mapped on axis and radius

0 The ability to show data in normal browserlreports view and to select and
?lter data from this view

- (High Priority) The system will provide signi?cant collaborative capabilities such
as ability to share data and results network-wide.

This includes the ability to easily publish ?nal or share
works in progress with other users

UNCLASSIFIED
2



23045

UNCLASSIFIED

The shared information will include not just the product. but the entirety of
the data and queries used, views of the maps, link diagrams, histograms,
etc.

The system should have quick and integrated export to PowerPoint, jpg,
Analyst Notebook-and other publishing fonnats.

- (High Priority) The system will provide the ability to support low-bandwidth or
frequently disconnected users with a data sub-set tailored to their area of
operations and the applications to use it, as well as the capability to report and
update infonnation when re-connected to the network.

Users at/near the tactical edge who have only part-time connectivity
should be able to use all the above applications on their own specific sub-
set of data based on their assigned battle space, even when disconnected.

This data set should update while the user is connected to the network
and should also feed user reports/work back to the central database for
wider use.

(UIFOUO) Non-Material Alternatives: There are no known non-material options or
alternatives that could meet this capability requirement.

(UIFOUO) Potential Material Alternatives: None identi?ed.

(UIFOUO) Potential Resource Tradeoffs: None identi?ed.

(UIFOUO) Constraints: None identi?ed.

(UIFOUO) Point of Contact (POC): USFOR-AIISAF J2 Collection and Requirements.

Mr. Pat McNiece, DSN SVOIP SIPR email:

(UIFOUO) Authorized by: MG ISAFIUSFOR-A J2.

UNCLASSIFIED
3





23046

UNCLASSIFIED

Requirement! Architecture Summary

1. CXI Network. Combination of regional and. where needed, brigade servers and
mobile users. Detailed estimate provided in attached spreadsheet. Summary includes:

a. Approximately 29 servers supporting almost 4,500 users.
b. Approximately 1,750 mobile devices.
Spreadsheet notes US vs Coalition requirements.

2. SIPR Network. Combination of regional and. where needed, brigade servers and
mobile users. Summary includes:

a. Approximately 18 servers supporting almost 3,000 users.
b. Approximately 625 mobile devices.
Spreadsheet notes US vs 5-Eye Coalition requirements.

3. JWICS Network. Server-client only. Regional sewers at the following locations:

a. Kabul to service JIOC-A. IJC, CFSOCC-A, SOF,
(approximately 100 users).

b. Bagram to service CJTF-101, SOTF, CJSOTF-A, BCTs (approximately 100
users).

c. Kandahar to service KIFC, KFC and BCTs (approximately 100 users).

d. Other JWICS users in theater will access one of these servers.

Summary: 3 sewer locations servicing approximately 300 users.

UNCLASSIFIED
4



ATTACHMENT

23048

Cnngrcfifi of tl|E Mniteb states
Maaliington,

20515

July 19,2010
The Honorable C.W. "Bili"Young
Ranking Member
House Appropriations Committee
Subcommittee on Defense
1016 Longworth House Office Building
Washington, D.C. 20515

The Honorable Norm Dicks
Chairman
House Appropriations Committee
Subcommittee on Defense
H-405, The Capitol
Washington, D C. 20515
Dear Chairman Dicks and Dear Ranking Member Young:

Please accept this letter regarding a critical intelligence capability known as Global Knowledge Management (GKM)
that is urgently needed by our forward deployed forces in Afghanistan but for which current funding shortfalls have
prevented full fielding of the capability.
We request that you provide the appropriate funds necessary in the Fiscal Year 2011 Defense Appropriations Bill to
competitively source and secure the necessary platform sets for all intelligence and special operations units that have
urgently requested the system but have not yet received it. We urge that this funding be administered in consultation
with the Inter Agency Technical Support Working Group (TSWG) and Combating Terrorism Technical Support Office
(CTTSO), which have been following this issue and have developed significant expertise on this particular capability.
Above all, we ask that funding be provided for a system that can operate remotely while disconnected from the
network since DoD has struggled with the issue of connectivity in the remote locations where our Special Operators
(SOF) are fighting.
Currentfieldedsystems are incapable of adapting to warfighter conditions in areas of the country that remain
underdeveloped. The majority of intelligence collected and archived is not readily available to U.S. forces deployed
today. Although significant progress has been made. Commanders remain reliant upon disparate data systems that are
not linked automatically, do not work without connectivity and do not seamlessly fuse operational and intelligence
information into one picture of the battlespace. As a result, decision making remains time consuming, and significant
linkages in patterns of life and cell and network analysis are incomplete, exacerbating a chronic lack of situational
awareness, slowing the link between intelligence and action and loosening the kill chain against critical targets.
As you are aware, the fusion of data collection, information management and predictive modeling software tools has
been synchronized and packaged into some GKM and discovery platforms that Commanders believe will have a
dramatic and positive impact on intelligence gathering and sharing, increasing the operational effectiveness of U.S. and
coalition forces. We are told that the GKM network would enable information sharing from far-forward locations in
Afghanistan, through theater TOCs, and along a secure NSA-net backbone to the intelligence clearinghouse. This
capability can prove to be a game-changer for our teams in theater, but the current level of funding is insufficient to
meet the global requirements of our intei teams and SOF elements that have urgently requested them.
Sincerely,

yi^YK^j^
Gabriel le Giffon
Member of Co

Mike Mclntyre
Member of Congress

PRINTED ON RECYCLED PAPER

Adam Smith
Member of Congress

23049

ATTACHMENT

•m:?^,'
23050

DEPARTMENT OF THE ARMY
OFFICE OF THE DEPUTY CHIEF OF STAFF, G-3/5/7
400 ARMY PENTAGON
WASHINGTON. DC 20310^00

July 28,2()10
The Honorable Norm Dicks
Chairman
House Appropriations Committee
Subcommittee on Defense
H-405, The Capitol
Washington, DC 20515
Dear Chairman Dicks,
In response to your recent query reference USFOR-A's request for a Global
Knowledge Management capability, we understand the specific product in question is the
Palantir Technologies analysis tool. In November 2009, the Rapid Equipping Force
funded the initial deployment of this tool to support an operational assessment with a
deployed Brigade Combat Team (BCT). While this assessment was ongoing, the
Intelligence, Surveillance and Reconnaissance Task Force approved and resourced the
Army to develop and deploy a Distributed Common Ground Systems - Army (DCGS-A)
Cloud Computing environment to Afghanistan in November 2010. This system will
provide advanced analysis capability together with storage, web-based access and
retrieval functions. The DCGS-A Cloud, together with a software upgrade planned for
systems already in theater provides the capabilities required. We will continue to look
for opportunities to employ Palantir where the Cloud is not immediately available or
where the employed Cloud will not provide adequate coverage. The DCGS-A/Cloud
software base is effectively free for CENTCOM as it is already resourced and on track
for delivery to theater in response to previously stated CENTCOM requirements.
Sincerely,

*eter A. Newell,
Colonel, US Army
Director, Rapid Equipping Force

!

ATTACHMENT

23052

Congress of ti): Etlnitch ?tates
Washington. Rd: 20515

August 25, 2010

COL Peter A. Newell

Director - Rapid Equipping Force

Office ofthe Deputy Chiefofstaff,
400 Army Pentagon

Washington, D.C. 20310-0400

Dear COL Newell:

We recently sent a letter to the Chairman and Ranking Member of the House Defense Appropriations
Subcommittee regarding the urgent need for a Global Knowledge Management (GKMJ capability that is
urgently needed by our forward deployed forces.

According to your letter in response to Chairman Diclcomputing environment for DCGS-A by this November. While the DCGS-A Cloud Computing
environment would be a tremendous advantage over current capabilities for forces deployed to bases
with stable and reliable internet connections, for units deployed to rugged. often uninhabitable terrain
- SOF and SF units, speci?cally - a DCGS-A Cloud-based system will not provide the necessary real
time computing capabilities to access necessary data and upload actionable intelligence while on the
move. Cloud computing requires an internet connection to be effective, which may not be available in
many areas where the best actionable intelligence is needed or being obtained.

Please provide our staffs with the Rapid Equipping Force's plan to ful?ll the need for on-the-move
access through the DCGS-A Cloud Computing environment in areas where no reliable internet
connections exist. Secondly, please also provide them with a comprehensive brie?ng on the status of
the DCGS-A development and when you expect it will be deployed to ?elded forces.

if you have any questions, please Contact our staff directly. We look forward to your prompt reply and
appreciate your time and interest. Ryan McKeon is the Senior Legislative Assistant for Military Affairs
in the office of Rep. Giffords and can be reached by phone a or by email at

Brian Garrett is the Military Legislative Assistant for Chairman Smith
and can be reached by phone a or by email a

Adam Smith

Member of Congress






a rielle Giff

Member of Congr

PINYED ON IECVCLED PAPER

23053

ATTACHMENT

23054
ADAM SMITH

DISTRICT OFFICE:

9TH DISTRICT, WASHINBTON

2209 PACIFIC AVENUE

j

2402 RAYBURN HOUSE OFFICE BUILDING
WASHINGTON, DC 2051B

SUITES
^ACOMA, WA 98402

j

2
,02, 22s-s9o,

Con^vt^^ of t\)t Wiuittti ^taM

ToJ:=LTM09

#ougeo(meprei,Watmeg
lilagljington, SC 20515-4709

May 23, 2011
General Martin E. Dempsey
Chief of Staff
United States Army
1600 Army Pentagon
Washington, DC 20310-1600
Dear General Dempsey,
One of the reasons for the recent successflil mission that resulted in the death of Osama bin
Laden was an impressive defense intelligence effort. This success is a reminder of how important
analytical capabilities have become in modem warfare and in our fight against global terrorism.
It is also a reminder that as much progress as we have made since September 11, 2001, more
needs to be done to ensure America's security.
That is why I am concerned that my letter dated August 25, 2010, to the Rapid Equipping Force
regarding a Global Knowledge Management (GKM) capability that has gone unacknowledged
and without response. For your reference I have attached the original letter and would request
your input on this issue.
As you know, on July 2, 2010, Major General Michael Flynn authored a Joint Urgent
Operational Needs Statement (JUONS) stating that "intelligence analysts in theater do not have
the tools required to fully analyze the tremendous amounts of information currently available in
theater." He went on to describe the shortcomings of each tool and indicated that was a farreaching problem that impacts every analyst in theater.
To date the Army's primary analytical tool has been the Distributed Common Ground Systems
(DCGS). 1 am aware that the Army continues to build its analytical software, as evidenced by a
request of $103 million in research funding in Fiscal Year 2012 in addition to $103 million in
Fiscal Year 2011 funding that was enacted. The House Armed Services Committee has
supported past DCGS funding efforts, however, 1 am troubled that urgent requests for off-theshelf technologies that meet immediate needs have gone unanswered.


The JUONS states that current tools "do not provide the ability to support low-bandwidth
or frequently disconnected users with a data sub-set tailored to their area of operations."
I have been told that the DCGS-A Cloud, the next generation of DCGS-A, meets these
requirements. In my letter to the Rapid Equipping Force, 1 asked that they "provide our
staffs with the REF's plan to fulfill the need for...access through the DCGS-A Cloud

PRINTED ON RECYCLED PAPER

j
|

23055

Computing environment in areas where no reliable internet connections exist." Acloud
requires an always-on internet connection while Afghanistan lacks modem roads much
less internet How does the cloud address this7
D The House Armed Services Committee was told that the Cloud computing environment
for DCGS-A would be fielded by this past November. Given the possible shortcoming of
the system noted above, has the DCGSACloud been deployed to SOF units in
Afghanistan7 What kind ofreviews has the product received by deployed SOF units7
Do off-the-shelfproductsbettermeet the needs ofSOF units than DCGS-A and if so is
thereaplan for funding instances of commercially available options, should SOF units
activelyrequestthem^
Icommend the Armed Forces and the intelligence community for their heroic work and the
recent successflil mission that resulted in the death ofOsama bin Laden. In the battle against
terror, it wasamajor success, ^ut further success requires we continue to innovate. Westill
have an enemythat is capable ofplotting against our Homeland and we have men and women in
combat who need the best analytic technologyto help them succeed. Yourprompt response
urgentlyrequested^
Sincere^

Adam Smith
Member ofCongress

23056

ATTACHMENT

23057

POLITICO
Computer bugs hurt Army ops
By; Charles Hoskinson
June 29. 2011 10:33 PM EDT

The Army's $2.7 billion computing system designed to share real-time intelligence with
troops fighting in Afghanistan and Iraq has hurt, rather than helped, efforts to fight
insurgents because it doesn't work properly, several analysts who have used the system
say.
The analysts' comments mirror concerns raised by the top military intelligence officer in
Afghanistan and members of Congress over the past two years in an unsuccessful bid to
get the Army to consider alternatives to its portion of the military's Distributed Common
Ground System, according to documents obtained by POLITICO.
The Army system, known by the acronym DCGS-A, is a cloud-based computing network
designed to collect information from multiple sources for real-time analysis that quickly
puts usable intelligence in the hands of battlefield commanders. For example, a
commander searching for an insurgent leader would benefit from being able to collect
reports of that leader's location and plot them on a map to make tracking easier.
But the analysts say DCGS-A was unable to perform simple analytical tasks. The system's
search tool made finding the reports difficult, and the software used to map the information
was not compatible with the search software.
"You couldn't share the data," said one former Army intelligence officer who worked in
Afghanistan and Iraq.
There were also problems with the hardware, with the system being prone to crashes and
frequently going off-line, he and another former Army intelligence officer now working as a
contractor in Afghanistan said.
"The laptops are turned on, but it doesn't work," the second former officer said. "There's a
lot of bugs in the workflow."
The analysts, who spoke on condition their names not be used, said problems with the
DCGS-A system led Maj. Gen. Michael Flynn, the top military intelligence officer in
Afghanistan, to write a July 2, 2010, memo citing the urgent need for a new system to
analyze the vast amounts of intelligence being collected.
"Analysts cannot provide their commanders a full understanding of the operational
environment. Without the full understanding of the enemy and human terrain, our
operations are not as successful as they could be," Flynn wrote in the memo obtained by
POLITICO. "This shortfall translates into operational opportunities missed and lives lost."

^^^^^^^
23058

Flynn'smemocaughttheattentionoflawmakers On duly1^,2010,Democratic l^eps.
Gabrielle Giffords of Arizona, Mike Mclntyre of l^orth Carolina and Adam Smith of
W a s h i n g t o n ^ ^ to l^epsl^orm Dicks ^DWash^andOillYoung^l^FIa^, then chairman
and ranking republican onthe FlouseDefenseAppropriations Subcommittee, seeking
urgent funding in fiscal 2011to "competitively source and secure the necessary platform
sets for all intelligence and special operations units that have urgently requested the
system but have notyet received it "
The lawmakers, alongwith several membersoftheSenateintelligencecommittee, wanted
theArmytoconsiderarival analytical system produced by PalantirTechnologies,a
Silicon galley company founded by PayPal alumni and Stanford computer scientists.
Palantir'ssystems are used by the FBI and the CIA to track suspected terrorists.
Their letters promptedaquerv from Dicks to the Army Inare^^on^edated^^iy^^^^oto,Col
Peterl^ewellwroteB^TheDCGSACIoud,togetherwithasoftware upgrade plannedfor
systems already in theater,provides the capabilities required.We will continue to look for
opportunities to employ Palantir where the Cloud is not immediately available or where the
employed Cloud will not provide adequate coverage The DCGS A^CIoud software base is
effectively free for C^I^TCOM as it is already resourced and on track for delivery to
theaterinresponsetopreviouslystatedC^I^TCOM requirements "
8udgetdocuments,however,showthattheArmywillhavespentmorethan$11^7million
on the DCGSAcloud through the end of September,outofatotal program cost o f $ 1 ^
billion over the past four years
TheArmysaysDCGSAsavesmoneyintwoways^byusingmaturetechnologyandby
eliminating duplication in intelligence, surveillanceandreconnaissancesystems -Arecent
costbenefit analysis of the DCGSAprogram found that this consolidation of ISI^ systems
will result in
billion in cost avoidance over the life of the program,"said Army Col.
Charles Wells,DCGSApro^ect manager
l^ewell's response to Dicks promoteda^rittenre^^e^t on ^^^^2. ^oto. by Giffords and Smith,
now the ranking Democrat on the Flouse Armed Services Committee, for information on
how DCGSAwould meet the urgent intelligence needs in Afghanistan identified by Flynn,
which went unanswered.
Smith followed up on May 2^ withaietter to Army Chief of Staff Gen Martin Dempsey,
implying future funding for the program might be in doubt if lawmakers'concerns aren't
addressed The Army hasn't answered his recent letter either,but an aide to Smith said
the Army would respond soon.
"As ranking memberoftheFlouseArmed Services Committee, itismyprimary
responsibility to ensure that our troops have the tools and resources necessary to
effectivelyexecutetheirmissions Providingthemwithtimelyand useful intelligences
whetheratacommand post oraforward operating base — is essential to their success,"
Smith said inastatement"Thatiswhyafterthe top intelligenceofficerinAfghanistan

23059

expressed concern regardingthe military's abilitytoanalyze informationintheater,lasked
for additional information surrounding potential shortfalls with the existing approach
intended to resolve the issues with the Distributed Common Ground Systems."
"I recently followed up my original request withasubsequent letter and have pushed fora
prompt response,"Smith added
Wells said software updates fielded over the past nine months on an expedited basis were
intended to support urgent operational needs in Afghanistan.
"The DCGS ACIoud l^ode at Oagram, Afghanistan, provides massive storage and
processing capabilities that provide unprecedented capabilities for the intelligence
analysts in theater,"he said "Through the use of lightweight ^widget'software
applications,analysts can query,sort and analyze over 20 million textual intelligence
reports in less than one second — allowing them to see subtle connections, associations
and patterns that were previously undetectable."
But both former intelligence officers disagreed
"Almost any commercial solution out there would be better,"the first said And the second
addedB^lt doesn't work It's not providing the capabilities that they need "
If intelligence analysts and commanders hadasystem that worked,he said,"I can't
comprehend the amount of success that would have happened here or could have
happened here "

^^o^^^ot^t^t^ot^t^^

ATTACHMENT I

23060

••rr^-^mt
23061

U.S. Army Intel software crashes during exercise
By Ben lannotta
September 22, 2011
Intelligence software that the U.S. would rely on in a war with North Korea froze up repeatedly during a joint
military exercise in South Korea in August, hampering the ability of U.S. and South Korean commanders to watch
the movements of simulated enemy forces, a senior intelligence official said.
The Distributed Common Ground System-Army (DCGS-A) software is designed to link intelligence analysts to
communications intercepts, imagery and radar collections stored in massive databases. When American intelligence
analysts tried to use the software to tract( simulated North Korean troop movements, the screens on their DCGS-A
workstations sometimes went black, forcing them to reboot the software, the senior intelligence official said.
Analysts could not always feed the latest enemy positions into the Command Post of the Future, the large
computer displays that U.S. commanders would rely on to view troop positions and orchestrate defenses with their
South Korean counterparts.
"What happened is the volume of information essentially crashed the software," the senior intelligence official said.
"We learned to manually do [data retrieval] in chunks of information so DCGS would not crash."
The flaw was discovered during the 10-day Ulchi Freedom Guardian exercise, a computer-generated North Korean
attack in which tens of thousands of American and South Korean troops were mobilized in and around Seoul. The
Pentagon billed the exercise as a "command post exercise" that would improve coordination of U.S. and South
Korean forces.
"Initial analysis indicates that the use of legacy hardware was likely the primary cause of the system reliability
issues," a spokesman for the DCGS-A office said in an email. "Personnel running current DCGS-A hardware during
the same exercise in Yongin reported no major interruptions, issues, or outages. The issues identified during this
exercise are currently being evaluated/corrected as needed."
The Army serves as lead integrator for the version of the software that crashed, incorporating tools and
technologies provided by BAE Systems, Northrop Grumman, Overwatch and other contractors.
U.S. intelligence officials have lately expressed concern that the wars in Iraq and Afghanistan have honed their
ability to untangle insurgent networks and track people, but at the expense of the traditional military intelligence
role of tracking forces during high-intensity conflicts involving artillery, tanks and fast-moving troop formations.
This year's Freedom Guardian exercise offered a chance to show that DCGS-A, which is used by analysts and
troops in Afghanistan, could perform well in a conventional war.
Software engineers will need to explore whether the greater volume of data stored in the conventional warfare
database caused DCGS-A to lock up, the official said.
In a related problem, the DCGS-A system took 2 to 2V2 minutes to nominate targets for bombing, a process that
should take seconds.
Despite the problems, the senior intelligence official said, the exercise should not be viewed as an indictment of the
multibillion-dollar DCGS-A initiative.
" I ' m going to make DCGS-A work," the official said.
All told, the DCGS-A system spent 10 out of 96 hours of planned operations locked up or being rebooted, the
official said.

23062

UNITED STATES OF AMERICA
GOVERNMENT RESPONSE TO
DEFENSE MOTION FOR
JUDICIAL NOTICE OF DCGS-A
INADEQUACIES

V.

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

17 August 2012
RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny the Defense Motion for Judicial Notice of Distributed
Common Ground System-Army (DCGS-A) inadequacies. Specifically, the United States objects
to this Court taking judicial notice that the "DCGS-A system was prone to crashes and incapable
of functioning when not cormected to a network." Def. Mot. at 1.

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
1. The United States stipulates to the facts set forth in paragraph 3 of the Defense Motion.
2. The accused was deployed to Iraq from on or about 1 November 2009 to on or about 27 May
2010. See Charge Sheet. Attachments C through I to the Defense Motion all post-date the
relevant dates of the accused's misconduct. See Attachments C through I to the Defense Motion.
3. Attachment C to the Defense Motion, a memorandum from Major General Michael Flynn to
the Deputy Commanding General for Support (DCG-S), United States Forces - Afghanistan
(USFOR-A), is dated 2 July 2010. See Attachment C to the Defense Motion. The memorandum
is the cover letter to a Joint Urgent Operational Need (JUGN) Statement, requesting a "theaterwide web-based advanced analytical platform to store, organize, access, retrieve and enable full
understanding of intelligence and information from multiple large disparate data sets." Id. at 3.
The theater in question was Afghanistan. Id. According to the JUON, the requested system
would "interface with and allow rapid access to existing intelligence and information databases,
such as CIDNE, DCGS-A, BATS, M3...." Id.
4. Attachment E to the Defense Motion, dated 28 July 2010, is a letter from Army Colonel Peter
E. Newell to Representative Norm Dicks. See Attachment E to the Defense Motion. In the
1

APPELLATEEX^'^-

OO/ /

23063

letter, COL Newell describes the fielding ofaDCGSACloud Computing environment to
Afghanistan in November 2010. COL Newell states that the DCGSACloud will provide the
"capabilities required."^^.
5. Attachment f^ to the Defense Motion, an article published in "Politico" and dated 29 June
2011,cites two anonymous former Army intelligence officers as saying that the DCGS-Asystem
"was prone to crashes."^^^ Attachment fJ to the Defense Motion At the time ofthe article, one
of the anonymous sources was working asacontractor in Afghanistan.
The anonymous
sources stated that problems with the DCGSAsystem led MGFlyrm to requestanew system in
his memorandum dated2July 2010.
^. Attachmentlto the Defense Motion, dated 22 September 2011,describes problems with the
DCGS-A system duringajoint military exercise in South l^orea.
Attachmentlto the
Defense Motion. According to the article, the DCGSAsystem spentl0outof9^ hours "locked
up or being rebooted."^^.
^ITNESSES^EVIDENCE
The United States requests this Court consider the referred Charge Sheet in support ofits
response.

LEGAL AUTHORITY AND ARGUMENT
The defense requests this Court takejudicial notice that the DCGS-A system was "prone
to crashes and incapable of functioning when not connected to a network." Def. Mot. at 1. In
short, these "facts" are inappropriate for judicial notice in this case. The defense has provided no
support for the proposition that these "inadequacies and issues with the DCGS-A" were wellknown or even generally known within the military community. See Def. Mot. at 4.
A judicially noticed fact "must be one not subject to reasonable dispute in that it is either
(1) generally known universally, locally, or in the area pertinent to the event or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned." Military Rule of Evidence (MRE) 201(b). Judicial notice of facts serves as a
substitute for testimonial, documentary, or real evidence. Stephen A. Saltzburg, et al.. Military
Rules of Evidence Manual § 201.02[1] (7th ed. 2011). Additionally, judicial notice promotes
judicial economy because it relieves a proponent from formally proving certain facts that a
reasonable person would not dispute. Id. The test for whether an adjudicative fact is "generally
known universally, locally, or in the area pertinent to the event" is whether the fact is generally
known by "well-informed people." Saltzburg, Military Rules of Evidence Manual § 201.02[3].'
Although the defense is correct when it notes that it is not the military judge's knowledge
or experience that is controlling under the first category of adjudicative facts, the defense has
' The defense's recitation of judicial notice law is problematic. The two cases they cite - United States v. Brown
and United States v. Spann - do not, in any conceivable way, buttress the propositions for which they are offered.
See Def. Mot. at 3.

23064

failed to adequately demonstrate that the DCGS-Ainadequacies it articulates are generally
known bywellinfbrmed people in the military community. Specifically,the defense wants this
Court to take judicial notice ofthe fact that DCGSAwas "prone to crashes,"but provides no
evidence that that fact is generally known in the military conm^unity,beyondasingle article
from "Politico."
Attachment fJ to the Defense Motion ("There were also problems with the
hardware, with the system beingprone to crashes and frequently going off-line, he and another
former Army intelligence officernow working asacontractor in Afghanistan said."). Aside
from the fact that the defense wants this Court to take judicial notice of what amounts toasingle
anonymous source statementfi^oman article in "Politico,"the article itself does not mesh with
the more reliable evidence provided in AttachmentCto the Defense Motion, the memorandum
signedbyMG Flynn Attachmentf^ (the "Politico" article)indicatesthatproblemswithDCGS
AledMG Flynn to write the2July2010memorandum (Attachment C)requestinganew system
to analyze intelligences however, the JUON in AttachmentCexplicitly states that the requested
system "will interface with and allow rapid access to existing intelligence and information
databasessuch as CIDNE. DCGSA. 8ATS.M3 "^^^AttachmentsCandFl to the Defense
Motion. In short, the JUON in AttachmentCsays nothing about inadequacies with DCGSA
AttachmentCto
and in fact states that the requested system would interface with DCGS-A.
the Defense Motion. Thus, it is clear the statements of anonymous sources in the "Politico"
article at AttachmentUare unreliable and subject to reasonable dispute. Further, it is unclear
whether knowledge ofDCGS-Ainadequacies was widespread, or whether that knowledge was
restricted toasmall community of anonymous former Armyintelligenceofficers.^
Furthermore, the remainder ofthe attachments to the defense motion are completely
ur^elpful. For the most part, they consist ofcorrespondence between members ofCongress and
the Army discussing the need, or lack thereof, fbranew intelligence analysis system—the
"Global I^owledge Management" capability. The correspondence does not establish, beyond
reasonable dispute, that DCGS-Awas "prone to crashes and incapableoffunctioning when not
connected toanetwork." Aside from the fact that the United States is unclear what is meant by
the statement that DCGS-A was "incapable of functioning when not connected toanetwork,"the
defense has provided no reliable evidence ofthat "fact."
CONCLUSION
The United States respectfully requests this Court DEN^ the Defense Motion for Judicial
Notice ofDCGSAinadequacies. For the reasons stated above, the facts sought to be judicially
noticed are subject to reasonable dispute in that the Defense has provided no evidence that the
"DCGS-Ainadequacies" summarized in the Defense Motion were generally known in the
military community.

J k B ^ ^ /Utf.*.ts^
/OODEAN MORROW
^ P T , JA
Assistant Trial Counsel
^ The United States does not concede that the DCGS-A system was an inadequate intelligence tool.

3

23065

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 17 August 2012.

lAN MORROW
:pT, JA
Assistant Trial Counsel



23066

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE MOTION FOR
v. JUDICIAL NOTICE OF

EXCERPTS FROM
MANNING, Bradley E., PFC DAVID BOOK
U.S. Army, GOOD
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 3 AUGUST 2012
Fort Myer, VA 22211

RELIEF SOUGHT

1. PFC Bradley E. Marming, by and through counsel, moves this court, pursuant to Military
Rule of Evidence (M.R.E.) 201 and M.R.E. 80l(d)(2)(D) to take judicial notice that David
Finkel?s book ?The Good Soldiers? was published prior to the alleged leaks in this case. The
Defense further requests the court take judicial notice that Mr. Finkel?s book contains a verbatim
transcript of the audio from the video charged in Speci?cation 2 of Charge II.

BURDEN OF PERSUASIQN AND BURDEN QF PROOF

2. As the moving party, the Defense has the burden of persuasion. R.C.M. 905(c)(2). The
burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1).

FACTS

3. PFC Marming is charged with ?ve speci?cations of violating a lawful general regulation, one
speci?cation of aiding the enemy, one speci?cation of disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight speci?cations of communicating
classi?ed information, ?ve speci?cations of stealing or knowingly converting Government
property, and two speci?cations of knowingly exceeding authorized access to a Government
computer, in violation of Articles 92, 104, and 134, Uniform Code of Military Justice (UCMJ)
IO 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 18 March 201 I. The current charges were preferred on 1 March 2011.
On 16 December through 22 December 2011, these charges were investigated by an Article 32
Investigating Of?cer. The charges were referred to a general court-martial on 3 February 2012.

5 -
PAGE


PA OF





.9
.4





23067

5. David Finkel operated as an embedded reporter with 2-16 Battalion, 4th Brigade Combat
Team, Infantry Division while the Battalion was deployed to Iraq in 2007. On 12 July 2007,
2-16 conducted operations in the Al-Amin neighborhood of Iraq. As part of this operation, 2-16
employed two AH-64 Apache helicopter gunships. While providing aerial support for the 2-16
operation, members of the Apache crew identi?ed a group of armed men. One minute and ?fty
?ve seconds later, after communicating with their command, the crew was given permission to
engage the group of men. The crew ?red four twenty round bursts over the course of twelve
seconds.

6. After the initial burst of gun?re the crew again contacted their command for further
permission to engage two individuals who arrived on the scene in a van and were attempting to
assist the wounded. Permission was granted and the crew ?red upon the van and the individuals
assisting the wounded. Two children inside the van were wounded and three more men were
killed. Ultimately, the ground reaction force from Bravo Company recovered eleven KIA,
including two individuals working as reporters for the Reuters news agency.

7. On 15 September 2009, David Finkel?s book, ?The Good Soldiers? was published by Farrar,
Straus and Giroux. See Attachment B. A portion of the book provides a verbatim account of not
only the exchange between the Apache crew and their Headquarters during their engagement
with the group, but also the events that happened before, a?er and contemporaneously. See
Attachment A. This 360-degree context clearly indicates that Mr. Finkel was provided a copy of
the video in question.]

8. On 5 April 2010 the website Wikileaks.org published a video taken from an American
Apache helicopter on 12 July 2007. The video depicts the aforementioned engagement and
killing of Reuters? employees. The Apache crew audio in the video is identical to the transcript
published in Mr. Finkel?s book. Moreover, as noted, Mr. Finkel provides additional details about
what the Apache crew was seeing at the time, suggesting that he was watching video and
listening to audio. For example, Mr. Finkel includes details such as the code words employed by
both the Apache crews and 2-16, the exact timing of the conversations relative to the shooting
and a vivid description of the battle?eld?s layout.



For example, Mr. Finkel details the reaction of the Battalion Commander, then-LTC Ralph Kauzlarich, to the
engagement by the Apaches. A?er the ?rst burst of gun?re, then-LTC Kauzlarich said, ?Machine gun Then,
after the second burst, he said, ?Yeah! We killed more [expletive].? Meanwhile, Mr. Finkel also provides a
verbatim account of the Apache crew communications with 2-16. An example of the dialogue:

?All right, you?re clear.?

?All right, I?m just trying to ?nd the targets again.?

?We have a bunch of bodies laying there.?

?All right, we got about eight individuals.?

?Yeah, we de?nitely got some.?

?Yeah, look at those dead bastards.?

?Good shooting.?

?Thank you.?

23068

9. The Defense does not request any witnesses be produced for this motion. The Defense
respectfully requests this court to consider the referenced attachments to this motion in support
of its request.

a. Excerpt from David Finkel?s ?The Good Soldiers,? which also appeared in The
Washington Post on 6 April 2010.

b. Amazon.com page for ?The Good Soldiers,? showing a publication date of 15
September 2009.

c. MacMillan publishing?s biography of David Finkel.

LEGAL AUTHORITY AND ARGUMENT

10. In the interest of judicial economy, M.R.E. 201 relieves a proponent from formally proving
certain facts that reasonable persons would not dispute. There are two categories of adjudicative
facts that may be noticed under the rule. First, the military judge may take judicial notice of
adjudicative facts that are ?generally known universally, locally, or in the area pertinent to the
event.? M.R.E. 201(b)(1). Under this category of adjudicative facts, it is not the military judge?s
knowledge or experience that is controlling. Instead, the test is whether the fact is generally
known by those that would have a reason to know the adjudicative fact. US. v. Brown, 33 M.J.
706 (N.M.C.A 1992). The second category of adjudicative facts are those ?capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be questioned.?
M.R.E. 201(b)(2). This category of adjudicative facts includes government records, business
records, information in almanacs, scienti?c facts, and well documented reports. Id. See also,
US. v. Spann, 24 M.J. 508 (A.F.C.M.R. 1987). The key requirement for judicial notice under
this category is that the source relied upon must be reliable.

11. Under M.R.E. 20l(d), a military judge must take judicial notice if the proponent presents the
necessary supporting information. In making the determination whether a fact is capable of
being judicially noticed, the military judge is not bound by the rules of evidence. 1 STEPHEN A.
SALTZBURG, LEE D. SCHINASI, AND DAVID A.SCHLUETER, MILITARY RULES OF
EVIDENCE MANUAL 20l.02[3] (2003) Additionally, the information relied upon by the
party requesting judicial notice need not be otherwise admissible. Id. The determination of
whether a fact is capable of being judicially noticed is a preliminary question for the military
judge. See M.R.E. 104(a).

12. Here, the excerpt from Mr. Finkel?s book is capable of accurate and ready determination by
sources that cannot reasonably be questioned. First, Mr. Finkel?s is an accomplished author who
currently writes for The Washington Post and has previously been awarded the Pulitzer Prize for
his reporting on U.S. involvement in Yemen. See Attachment C. Moreover, his book was
published by Farrar, Straus and Giroux, a major American publishing company. A visit to
Amazon.com clearly shows that the book was published on 15 September 2009. Amazon.com is
one of the world?s largest retailers of books and the accuracy of the publishing information on
the site caimot reasonably be questioned. Individuals can purchase the book from any major
online book retailer, while those with access to the World Wide Web can read the excerpt by
visiting

23069

13. Mr. Finkel?s reputation and the wide-spread availability of the excerpt in question bolster the
reliability of the excerpt. The fact that the book offers a verbatim transcript of the events of 12
July 2007, both from the perspective of the Apache crew and members of 2-16, reinforces the
fact that Mr. Finkel viewed a copy of the video on question when authoring his book. As such,

judicial notice of the excerpt is appropriate in this case.

CONCLUSION

14. Based on the above, the Defense requests that the Court to take judicial notice of requested
adjudicate facts.

Respectfully Submitted



SHUA J.
CPT, JA
Defense Counsel

23070

ATTACHMENT A

Page 1 of 12

U.S. gunfire kills two Reuters ^ployees in Baghdad

23071

SJ)c ##l)mg#m |lost
U.S. gunfire kills two Reuters
employees in Baghdad

Advertisement

By David Finkel
Washington Post Staff Writer
Tuesday, April 6, 2010; 12:48 PM

On July 12, 2007, two employees of the Reuters news
agency were killed by gunfire from American
helicopters during battle operations in eastern
Baghdad, Iraq. A leaked, classified video of those
killings was posted yeslerday on the web site
WikiLeaks.ors.
A fuller account of that day appears in the book "The
Goad Soldiers," by Washington Post journalist David Finkel, published by Sarah Crichton
Books/Farrar, Straus and Giroux. The book chronicles the experiences of the Army's 2-16 Infantry
Battalion, commanded by Lieutenant Colonel Ralph Kauzlarich, during "the surge."
Finkel was present during the July 12 operation and wrote about that day in the following excerpt.
On July 12, Kauzlarich ate a Pop-Tart at 4:55 a.m., guzzled a can of Rip It Energy Fuel, belched loudly,
and announced to his soldiers, "All right, boys. It's time to get some." On a day when in Washington,
D.C, President Bush would be talking about "helping the Iraqis take back their neighborhoods from the
extremists," Kauzlarich was about to do exactly that.
The neighborhood was Al-Amin, where a group of insurgents had been setting off a lot of lEDs, most
recently targeting Alpha Company soldiers as they tried to get from their COP to Rustamiyah for Crow's
memorial ser vice a few days before. Two lEDs exploded on the soldiers that day, leaving several of
them on their hands and knees, alive but stunned with concussions, and now Kauzlarich was about to
swarm into that area with 240 soldiers, 65 Humvees, several Bradley Fighting Vehicles, and, on loan to
them for a few hours from another battalion, two AH-64 Apache helicopter gunships.
All together, it made for a massive and intimidating convoy that at 5:00 a.m. was lining up to leave
Rustamiyah when the radar system picked up something flying through the still-dark sky. "Incoming!
Incoming!" came the recorded warning as the alert horn sounded. It was a sound that, by now, after so
many such warnings, seemed less scary than melancholy, and the soldiers reacted to it with shrugs.
Some standing in the open reflexively hit the dirt. The gunners who were standing up in their turrets
dropped down into their slings. But most did nothing, because the bullet had been fired, it was only a
matter of time, and if they knew anything by now, it was that whatever happened in the next few
seconds was the province of God, or luck, or whatever they believed in, rather than of them.
Really, how else to explain Stevens's split lip? Or what happened to a captain named Al Walsh when a
mortar hit outside ofhis door early one morning as he slept? In came a piece of shrapnel, moving so
swiftly that before he could wake up and take cover, it had sliced through his wooden door, sliced
through the metal frame of his bed, sliced through a 280-page book called Learning to Eat Soup with a
Knife, sliced through a 272-page book called Buddhism Is Not What You Think, sliced through a 128-

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040601368_pf....

8/1/2012

U.S.gunfire kills two Reuters ^ployees in Baghdad

Page2ofl2
23072

page book called On GuerrillaWarfare, sliced througha360 page book calledTactics ofthe Crescent
Moon, sliced throughal76page Calvin and Hobbes collection, sliced through the rear ofametal
cabinet holding those books, and finally was stopped byaconcrete wall.And the only reason that Walsh
wasn't sliced was that he happened in that moment to be sleeping on his side rather than on his stomach
or back, as he usually did,which meant that the shrapnel passed cleanly through the spot where his head
usually rested, missing him by an inch. Dazed, ears ringing, unsure ofwhathadjust happened, and
spotted withalittle blood from being nicked by the exploding metal fragments of the ruined bed frame,
he stumbled out to the smoking courtyard and said to another soldier,"ls anything sticking out of my
head?"And the answer, thank whatever,was no.
Another example: How else to explain what had happenedjust the day before, in another mortar attack,
when one ofthe mortars dropped down out ofthe sky and directly into the open turret ofaparked
Humvee? Af^er the attack was over, soldiers gathered around the ruinedHumvee to marvel—not at the
destructionamortar could cause,but at the odds.How much sky was up there? And how many landing
spots were down here?So many possible paths fbramortar to follow,and never mind the fact that every
one of them comes down inaparticularplace-the fact that this one followed the one path that brought it
straight down throughaturret without even touching the edges,aperfect swish, the impossible shot,
made the soldiers realize how foolish they were to think thatamortar couldn't come straight down on
them.
Resigned to the next few seconds, then, here they were, lined up at the gate, listening to the horn and the
incessant,"lncoming!Incoming!"and waiting for whatever was up there to drop.
One second.
Two seconds.
Aboom over there.
One second.
Two seconds.
Another boom, also over there.
And nothing here, not even close, no swish this time, so the gunners stood back up, the soldiers in the
dirt dusted themselves off, and the massive convoy headed toward Al-Amin to beginaday that would
turn out to feature four distinct versions ofwar.
Arrivingjust after sunrise,Charlie Company broke offfrom the convoy and headed to the west side of
Al-Amin. ltwasasaffyadaffyaday,and the soldiers found no resistance as they began clearing streets
and houses.Birds chirped.Afew people smiled. One family was so welcoming thatTyler Andersen, the
commander of Charlie Company,ended up standing underashade tree withaman and his elderly father
havingaleisurely discussion about the war.The Iraqis asked why the Americans'original invasion force
had been only one hundred thousand soldiers.They talked about the difficulties oflife with onlyafew
hours of electricityaday,and how much they mistrusted the Iraqi government because ofthe rampant
corruption.Theconversation,which lasted half an hour and ended in handshakes,was the longest, most
civil one Andersen would have with an Iraqi in the entire war, and it filled him with an unexpected sense
ofoptimism about what he and his company of soldiers were doing.That was the first version ofwar.

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040601368_pf.... 8/1/2012

U.S.gunfire kills two Reuters employees in Baghdad

Page3ofl2
23073

The second occurred in the center of Al-Amin,where Kauzlarich went with Alpha Company.
Here, sporadic gunfire could be heard, and the soldiers clung to walls as they moved towardasmall
neighborhood mosque.They had been tipped that it might beahideout for weapons,and they wanted to
get inside.The doors were chained shut, however,and even if they hadn't been, American soldiers
weren't allowed in mosques without special permission. National Police could go in, but the three dozen
NPs who were supposed to be part ofthis operation had yet to show up.Kauzlarich radioed 0^^^^^
O^^in^^^id they were coming. Nothing to do but wait and wonder about snipers. Some soldiers took
refuge inacourtyardwhereafamily's wash was hanging out to dry.Others stayed bobbing and weaving
on the street,which was eerily empty except forawoman in black pulling alongasmall girl,who saw
the soldiers and their weapons and burst into tears as she passed by.
Here, finally, came the NPs.
"There are weapons inside,"Kauzlarich told the officer in charge,abrigadier general.
"No!"the general exclaimed in shock, and then laughed and led his men towardahouse next door to the
mosque.Without knocking, they pushed through the front door,wentpastawideeyed man holdinga
baby sucking his thumb,climbed the steps to the roof, took cover forafew minutes when they heard
gunfire,jumped from that roof down onto the slightly lower roof of the mosque,went inside,and
emergedafewminuteslaterwitharocket-propelled grenade launcher, anAK-47, ammunition, and,
placed carefully intoabag,apartially assembled lED.
"Wow,"Kauzlarich said after all this had been brought down to the street, and forafew moments,
defying his own order to always keep moving, he stared at the haul, disgusted.
Weapons inamosque.Asacommander,he needed to understand why an imam might allow this, or
even sanction it, because as it said in the field manual on Cummings'sdesk,which was getting dustier by
the day,"Counterinsurgents must understand the environment."Good soldiers understood things.So did
good Christians, and Kauzlarich desired to be one ofthose, too."For he who avenges murder cares for
the helpless,"he had read the night before in the OneYear Bible."He does not ignore the cries ofthose
who suffer."
Were these people suffering?Yes.Were they helpless?Yes.Was this their version of crying, then?Was
the explanation somewhere in the wordsofPsalms?
But what aboutastatementreleasedafew days before by an Iraqi religious leader,which said, in part:
"Yes,OBush,we are the ones who kidnap your soldiers and kill them and bum them.Wewill continue,
God willing, so long as you only know the languageofblood and the scattering of remains.Our soldiers
love the blood ofyour soldiers.They compete to chop offtheir heads.They like the game ofburning
down their vehicles."
Whatafreak show this place was.And maybe that was the explanation for the pile of weapons
Kauzlarich was looking at, that it deserved no understanding whatsoever.
Weapons inamosque,including an lED to bum vehicles and kill soldiers.
Unbelievable.
Shadighabees.Coolohkhara. Allah ye sheelack.

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040601368_pf....

8/1/2012

U.S.gunfire kills two Reuters ^^ployees in Baghdad

Page4ofl2
23074

"Shukran,"Kauzlarich said out loud to the general,keeping his other thoughts to himself. He made his
way to his Humvee tofigureout where to go next and was just settling into his seat when he was startled
byaloud burst of gunfire.
"Machine gun fire,"hesaid,wondering who was shooting.
But it wasn't machine gun fire.It was bigger. More thundering.Itwas coming from above,just to the
east,where the AH-64 Apache helicopters were circling, and it was so loud the entire sky seemed to
jerk.
Now cameasecond burst.
"Yeah! Wekilled more ^expletive^,"Kauzlarich said.
Now came more bursts.
"Holy ^expletive^,"Kauzlarich said.
It was the morning's third version ofwar.
One minute and fifiy-five seconds before the first burst, the two crew members in one ofthe circling
Apaches had noticed some men onastreet on Al-Amin's eastern edge.
"See all those people standing down there?" one asked.
"Confirmed,"said the other crew member."That open courtyard?"
"Roger,"said the first.
Everything the crew members in both Apaches were saying was being recorded. So were their
communications with the2-16.Toavoid confusion, anyone talking identified himself withacode word.
The crew members in the lead Apache, for example,were Crazy Horsel-8.The2-16person they were
communicating with most frequently was Hotel2-6.
There wasavisual recording ofwhat they were seeing as well,and what they were seeing now—one
minute and forty seconds before they fired their first burst -were some men walking along the middle of
astreet, several of whom appeared to be carrying weapons.
All morning long,this part of Al-Amin had been the most hostile.WhileTyler Andersen had been under
ashade tree in west Al-Amin, and Kauzlarich had dealt with occasional gunfire in the center part, east
Al-Amin had been filled with gunfire and some explosions. There had been reports of sniper fire,
rooftop chases, and rocket-propelled grenades being fired at Bravo Company, and as the fighting
continued, it attracted the attention ofNamirNoor-Eldeen,atwenty-two-year-old photographer for the
Reuters news agency who lived in Baghdad, and SaeedChmagh,forty,his driver and assistant.
Some journalists covering the war did so by embedding with theU.S.military.Others worked in de pen
dently.Noor-Eldeen and Chmagh were among those who worked independently,which meant that the
military didn't knowthey were in Al-Amin.The2-16didn'tknow,and neither did the crews ofthe
Apaches,which werefiying high above Al-Amin inaslow,counter-clockwise circle. From that height,
the crews could see all ofeast Al-Amin, but the optics in the lead Apache were now focused tightly on

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040601368_pf....

8/1/2012

U.S.gunfire kills two Reuters employees in Baghdad

Page5ofl2
23075

Noor-Eldeen,whohadacamera strung over his right shoulder and was centered in the crosshairs of the
Apache's thirty-millimeter automatic cannon.
"Oh yeah,"one of the crew members said to the other as he looked at the hanging camera."That'sa
weapon."
"HotelTwo-six, this is Crazy Horse One-eight,"the other crew member radioed in to the216."Have
individuals with weapons."
They continued to keep the crosshairs on Noor-Eldeen as he walked along the street next to another
man,who seemed to be leading him.On the right side ofthe street were some trash piles.On the lefi^
side were buildings.Nowthe man withNoor-Eldeen guided him by the elbowtoward one ofthe
buildings and motioned for him to get down.Chmagh followed, carryingacamerawithalongtelephoto
lens.Behind Chmagh were four other men, one ofwhom appeared to be holding anAK-47 and one of
whom appeared to be holdingarocket-propelled grenade launcher.The crosshairs swung now away
from Noor-Eldeen and toward one ofthose men.
"Yup, he's got one, too,"the crew member said."HotelTwosix, Crazy Horse One-eight. Have five to
six individuals with AK 47s. Request permission to engage."
It was now one minute and four seconds before the first burst.
"Roger that,"Hotel2-6 replied."Wehave no personnel east of our position, so you are free to engage.
Over"
"All right,we'll be engaging,"the other crew member said.
They couldn't engage yet, however, because the Apache's circling had brought it toapoint where some
buildings now obstructed the view ofthe men.
"1 can't get them now,"acrew member said.
Several seconds passed as the lead Apache continued its slow curve around. Now it was almost directly
behind the building thatNoor-Eldeen had been guided toward, and the crew members could see
someone peering around the corner, looking in their direction and lifiing something long and dark. This
was Noor-Eldeen, raisingacamerawithatelephoto lens to his eyes.
"He'sgotanRPG"
"Okay,lgotaguywithanRPG."
"I'm gonna fire."
But the building was still in the way.
"Goddamnit"
The Apache needed to circle all the way around, back to an unobstructed view ofthe street, before the
gunner would haveaclean shot.

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040601368_pf....

8/1/2012

U.S.gunfire kills two Reuters mployees in Baghdad

Page6ofl2
23076

Ten seconds passed as the helicopter continued to curve.
"Once you get on it, just open—"
Almost around now, the crew could see three of the men.Justalittle more to go.
Now they could see five of them.
"You'reclear"
Not quite. One last tree was in the way.
"Allright"
There.Now all ofthe men could be seen.There were nine ofthem,including Noor-Eldeen. He was in
the middle, and the others were clustered around him, except for Chmagh,who was on his cell phonea
few steps away.
"Light'emallup."
One second before the first burst, Noor-Eldeen glanced up at the Apache.
"Comeon-fire."
The others followed his gaze and looked up, too.
The gunner fired.
It wasatwenty-round burst that lasted for two seconds.
"Machine gunfire,"Kauzlarichsaid quizzically,ahalf mile away,as the sky seemed to jerk, and
meanwhile, here in east Al-Amin, nine men were suddenly grabbing their bodies as the street blew up
around them, seven were now falling to the ground, dead or nearly dead, and two were running awayChmagh and Noor-Eldeen.
The gunner saw Noor-Eldeen, tracked him in the crosshairs, and firedasecond twenty-round burst, and
after running perhaps twelve steps, Noor-Eldeen dove intoapileoftrash.
"Keep shooting,"the other crew member said.
There wasatwo-second pause,and then came the third burst.The trash all around where Noor-Eldeen
lay facedown erupted.Acloud of dirt and dust rose into the air.
"Keep shooting."
There wasaone-second pause, and then came the fourth burst. In the cloud, Noor-Eldeen could be seen
trying to stand, and then he simply seemed to explode.
All ofthis took twelve seconds.Atotal of eighty rounds had been fired.Thethirtymillimeter cannon
was now silent.The pilot was silent.Thegtmner was silent.The scene they looked down on was one of

http://wwwwashingtonpostcom/wp-dyn/content/article/2010/04/06/AR2010040601368_pf

8/1/2012

U.S.gunfire kills two Reuters employees in Baghdad

Page7ofl2
23077

swirling and rising dirt, and now,barely visible as some ofthe swirling dirt began to thin, they sawa
person who was taking cover by crouching againstawall.
It was Chmagh.
He stood and began to run."I got him,"someone said, and now he disappeared insideafresh explosion
of dirt,which rose and mingled with what was already in the air as the Apaches continued circling and
the crew members continued to talk.
"All right, you're clear,"one said.
"All right, I'm just trying to find targets again,"another said.
"Wehaveabunchofbodies laying there."
"All right,we got about eight individuals."
"Yeah,we definitely got some."
"Yeah, look at those dead bastards."
"Good shooting."
"Thankyou"
The smoke was gone now and they could see every thing clearly: the main pile ofbodies, some prone,
one on haunches, one folded into impossible angles^ Noor-Eldeen on top ofthe trashy Chmagh lying
motionless on his leftside.
"Bushmaster Seven, Crazy Horse Oneeight,"they radioed to Bravo Company,whose soldiers were on
their way to the site."Location ofbodies Mike Bravo Five-four-fiveeight-eight-six-one-seven.They're
onastreet in front of an open courtyard withabunchofbluetrucks,abunchofvehiclesinacourtyard."
"There's one guy moving down there, but he's wounded,"someone now said, looking down, scanning
the bodies, focusing on Chmagh.
"This is One-eight,"the crew member continued on the radio."Wealso have one individual who appears
to be wounded. Trying to crawl away."
"Roger.We're gonna move down there,"Bravo Company replied.
"Roger.We'll cease fire,"the Apache crew responded and continued to watch Chmagh, still alive
somehow,who in slow motion seemed to be trying to push himself up.He got partway and collapsed.
He tried again, raising himself slightly, but again he went down. He rolled onto his stomach and tried to
get up on his knees, but his lefi leg stayed extended behind him, and when he tried to lifi^ his head, he
could get it onlyafew inches off the ground.
"Do you seeashot?" one ofthe crew members said.
"Does he haveaweapon in his hands?" the other said, aware ofthe rules goveming an engagement.

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040601368_pf....

8/1/2012

U.S.gunfire kills two Reuters^ployees in Baghdad

Page8ofl2
23078

"No,Ihaven'tseenoneyet."
They continued to watch and to circle as Chmagh sank back to the ground.
"Come on, buddy,"one ofthem urged.
"All you gotta do is pick upaweapon,"another said.
Now,as had happened earlier, their circling brought them behind some buildings that obstructed their
view ofthe street, and when they were next able to see Chmagh, someone they had glimpsed running up
the street was crouching over him,asecond man was running toward them, andaKia passenger van was
approaching.
"Bushmaster, Crazy Horse,"they radioed in urgently."Wehave individuals
going to the scene. Looks like possibly picking up bodies and weapons. Break—"
The van stopped next to Chmagh.The driver got out, ran around to the passenger side,and slid open the
cargo door.
"Crazy Horse One-eight. Request permission to engage."
Ready to fire, they waited for the required response fiom Bravo Company as two ofthe passersby tried
to pick up Chmagh,who was facedown on the sidewalk.One man had Chmagh by the legs.The second
man was tryingtotumhimoveronto his backWere they insurgents?Weretheypeopleonlytryingto
help?
"Come on! Let us shoot."
Nowthe second man had hold ofChmagh under his arms.
"Bushmaster, Crazy Horse One-eight,"the Apache said again.
But there was still no response as the driver got back in his seat and the two men lified Chmagh and
carried him around the fiont ofthe van toward the open door.
"They're taking him."
"Bushmaster, Crazy Horse One-eight."
They had Chmagh at the door now.
"This is Bushmaster Seven. Go ahead."
They were pulling Chmagh to his feet.
"Roger,wehaveablack bongo truck picking up the bodies.Request permission to engage."
They were pushing Chmagh into the van.

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040601368_pf.... 8/1/2012

U.S.gunfire kills two Reuters employees in Baghdad

Page9ofl2
23079

"This is Bushmaster Seven. Roger. Engage."
He was in the van now,the two men were closing the door, and the van was beginning to move forward.
"One-eight, clear."
"Comeon!"
Afirst burst.
"Clear"
Asecond burst.
"Clear"
Athird burst.
"Clear"
Ten seconds.Sixty rounds.The two men outside of the van ran, dove, and rolled againstawall as some
of the rounds exploded around them.The van continued fbrwardafew yards, abruptly jerked backward,
crashed into the wall near the men, and was now enveloped in smoke.
" I think the van's disabled,"acrew member said, but to be sure, now cameafourthburst,afifth,anda
sixth—ten more seconds, sixty more rounds—and that, at last,was the end of the shooting.
Now it wasamatterofwaiting for Bravo Company's soldiers to arrive on the scene, and here they came,
in Humvees and on foot, swarming acrossathoroughly ruined landscape.The battlefield was theirs now,
fiom the main pile ofbodies, to the trash pile withNoor-Eldeen, to the shot-up houses and buildings, to
thevan—inside ofwhich, among the bodies, they discovered someone alive.
"Bushmaster Six, Bravo Seven,"aBravo Company soldier called over the radio."I've got eleven Iraqi
KlAs, one small child wounded. Over."
The Apache crews were listening.
"Ah,damn,"oneofthemsaid.
"Weneed to evac this child,"Bravo Seven continued."She's gotawoundtothebelly.DOC can't do
anything here. She needs to get evac'd. Over."
"Well,it's their fault for bringing their kids toabattle,"acrew member said.
"That's right,"the other said, and forafew more minutes they continued to circle and watch.
They saw more Humvees arriving, one of which drove up onto the trash pile, right over the part
containing what was left ofNoor-Eldeen's body.
"That guy just drove overabody."

http://wwwwashingtonpostcom/wp-dyn/content/article/2010/04/06/AR2010040601368^f

8/1/2012

U.S.gunfire kills two Reuters employees in Baghdad

Pagel0ofl2
23080

"Didhe?"
"Yeah"
"Well,they'redead,so-"
They watchedasoldier emerge fiom the van cradling the wounded girl and run with her in his arms to
the army vehicle that was going to evacuate her toahospital.
They watched another soldier emerge fiom the vanafew minutes later cradlingasecond wounded child,
this onealittle boy who had been discovered underabody presumed to be his father's,which was
draped over the boy,either protectively or because that was howadead man happened to fall.
And then they flew on to another part of Al Amin as more and more Bravo Company soldiers arrived,
one ofwhom was Jay March, the soldier who on the battalion's very first day in Iraq had climbeda
guard tower, peeked out at all of the trash, and said quietly and nervously,"Weain't ever gonna be able
tofindanlEDinallthis "
Since then, March had learned how prophetic he was, especially on June 25, when an EFP killed his
fiiend Andre Craig, Jr. Craig's memorial service had been on July7,and now,five days later,as March
saw all of the bodies scattered around, blown open, insides exposed, so gruesome, so grotesque, he feltas he would later explain—"happy.It was weird.Iwas just really very happy.Iremember feeling so
happy.Whenlheard they were engaging,whenlheard there's thirteen KlA,Iwas just so happy,
because Craig had just died, and it felt like, you know,we got'em."
As the Apaches peeled off, he and another soldier went throughagate in the wall that the van had
crashed into and against which Chmagh had tried to take cover.
There, in the courtyard ofahouse, hidden from street view,they found two more injured Iraqis, one on
topofthe other.As March looked closer at the two,who might have been the two who had been lifiing
Chmagh into the van,who as far as March knew had spent the morning trying to kill American soldiers,
he realized that the one on the bottom was dead. But the one on top was still alive, and as March locked
eyes with him, the man raised his hands and rubbed his two forefingers together,which March had
learned was what Iraqis did when they wanted to signal the word fiiends.
So March looked at the man and rubbed his two forefingers together, too.
And then dropped his left hand and extended the middle fingerofhis right hand.
And then said to the other soldier,"Craig's probably just sitting up there drinking beer, going,'Hah!
That'salllneeded'"
And that was the day's third version ofwar.
As for the fourth version, it occurred late in the day,back on the FOB,afier Kauzlarich and the soldiers
hadfinishedtheir work in Al-Amin.
They knew by now about Chmagh and Noor Eldeen.
They had brought back Noor-Eldeen's cameras and examined the images to see ifhewasajoumalist or

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040601368_pf ... 8/1/2012

U.S.gunfire kills two Reuters ^nployees in Baghdad

Pagellofl2
23081

an insurgent.
They had gotten the video and audio recordings fiom the Apaches and had reviewed them several times.
They had looked at photographs taken by soldiers that showed AK-47sandarocketpropelled grenade
launcher next to the dead Iraqis.
They had reviewed every thing they could about what had prefaced the killings in east Al-Amin, in
other words—that soldiers were being shot at, that they didn't knowjournalists were there, that the
journalists were inagroup of men carrying weapons,that the Apache crew had followed the rules of
engagement when it fired at the men with weapons, at thejournalists, and at the van with the children
inside—and had concluded that everyone had acted appropriately.
Had the journalists?
That would be for others to decide.
As for the men who had tried to help Chmagh,were they insurgents or just people trying to helpa
wounded man?
They would probably never know.
What they did know: the good soldiers were still the good soldiers, and the time had come for dinner.
"Crow.Payne.Craig.Ga^dos.Cajimat,"Kauzlarich said on the walk to the DFAC."Right now? Our
guys?They're thinking,'Those guys didn't die in vain. Not al^er what we did today.'"
Inside the DFAC,theTVswere tuned to Bush's press conference,which had begun inWashingtonjusta
few minutes before.
"Our top priority is to help the Iraqis protect their population,"Bush was saying,"so we've launched an
offensive in and around Baghdad to go afier extremists, to buy more time for Iraqi forces to develop, and
to help normal life and civil society take root in communities and neighborhoods throughout the country.
"We're helping enhance the size, capabilities, and effectivenessofthe
Iraqi security forces so the Iraqis can take over the defense of their own country,"he continued."We're
helping the Iraqis take back their neighborhoods from the extremists..."
This was the fourth version ofwar.
V^ew all comments that have been posted about this article.
^ P^^t^^on^m^t^t
V^^wa^^comn^^ntsthathav^h^^nnost^dahoutth^sart^cl^.

Comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site.
Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will
take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040601368_pf....

8/1/2012

U.S. gunfire kills two Reuter^- employees in Baghdad

!

Page 12 of 12
23082

site. Please review the full rules governing commentaries and discussions. You are fully responsible for the content that you post.
^
Sponsored Links
Map Your Flood Risk

Find Floodplan Maps, Facts, FAQs, Your Flood Risk Profile and Morel

1 Sneaky Linguistic Trick
The secret of how to learn a foreign language in just 10 days. Read here to find out

I
QUAN Stock Winner
Hot Industry, High-Potential Investment - Buy Shares Now!
I

2010 The Washington Post Company

Buy a link here

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040601368_pf.... 8/1/2012

ATTACHMENT

Amazon.com: The Good SoW'^'s: David Finkel: Books

Shop by
Department
Books

Advanced Search

Your Amazon com

Today's Deals

Search

)d Soldiers

Browse Subjects

New Releases

Gift Cards

Page 1 of 3
23084

Help
Hello, Sign in
Your Account

Go
Best Sellers

The New YoMt Times® Best Sellers

Children's Books

Textbooks

Wish
List

Cart
Sell Your Books

T h e G o o d S o i d i e r s a n d o v e r o n e m i l l i o n o t h e r b o o k s a r e a v a i l a b l e f o r A m a z o n K i n d l e . Learn m o r e

ri ck to LOOK INSIDE

T h e G o o d Soldiers [Bargain Price] [Hardcover]
David Finkel

Quantity;

(Author)
f 147 customer reviews^ |

The
Good
Soldiers

1

'

(U

List Price: $26.00

n to turn on l-Click ordering.

Price: $ 1 0 . 4 0 & eligible f o r FREE S u p e r S a v e r S h i p p i n g
on o r d e r s o v e r $ 2 5 . Details
You Save: $ 1 5 . 6 0 ( 6 0 % )



Add 10 Girt with
n i l Twa'Day Shipping

i

Amazon Prime Free Trial
required. Sign up when you
check out. ^.earn More

In Stock.
Ships fronn and sold by A m a z o n . c o m . Gift-wrap available.
W a n t It d e l i v e r e d Friday, A u g u s t 3? Order it in the next 7 hours and
46 minutes, and choose One-Day S h i p p i n g at checkout. Details
18 used from $3.66
9 n e w from $6.00
1 collectible from $11.50

More Buying Choices
28 used & new from $3.66

Share your own customer images

This Is a b a r g a i n book and quantities are limited. Bargain books are
new but could include a small mark from the publisher and an
Amazon.com price sticker identifying them as such. Details

Have one to sell?
Share

Search inside another edition of this book
Start reading The Good Soldiers on
your Kindle in under a minute.

Formats

Amazon

Kindle Edition

Don't have a Kindle? Get vour Kindle
here, or download a FREE Kindly
Reading ADD.

Hardcover, Bargain Price

f?om

Used

-

S9 99

-

$10.40

S6 00

S3 66

Paperback

$10 20

$4 89

$0,46

1
1

Audio, CD, Audiobook, MPS Audio,
Unabridged

$12 58

$8,06

$a.99

1

Audible Audio Edition, Unabridged

$1995 or Free with Audible
30-day free tnai

Book Description
Publication Date: S e p t e m b e r 15, 2 0 0 9

I t w a s t h e l a s t - c h a n c e m o m e n t of t h e w a r . I n J a n u a r y 2 0 0 7 , P r e s i d e n t G e o r g e W . B u s h a n n o u n c e d a n e w s t r a t e g y f o r I r a q . He called i t t h e
s u r g e . " M a n y l i s t e n i n g t o n i g h t will a s k w h y t h i s e f f o r t will succeed w h e n p r e v i o u s o p e r a t i o n s t o s e c u r e B a g h d a d d i d n o t . W e l l , h e r e a r e t h e
d i f f e r e n c e s , " he t o l d a s k e p t i c a l n a t i o n . A m o n g t h o s e l i s t e n i n g w e r e t h e y o u n g , o p t i m i s t i c a r m y i n f a n t r y s o l d i e r s of t h e 2 - 1 6 , t h e b a t t a l i o n
n i c k n a m e d t h e R a n g e r s . A b o u t t o h e a d t o a v i c i o u s area of B a g h d a d , t h e y d e c i d e d t h e d i f f e r e n c e w o u l d be t h e m .
Fifteen m o n t h s l a t e r , t h e s o l d i e r s r e t u r n e d h o m e f o r e v e r c h a n g e d . Pulitzer P r i z e - w i n n i n g W a s h i n g t o n P o s t r e p o r t e r D a v i d Finkel w a s w i t h
t h e m in B a g d a d , a n d a l m o s t e v e r y g r u e l i n g s t e p o f t h e w a y .
W h a t w a s t h e t r u e s t o r y of t h e s u r g e ? A n d w a s it really a success? T h o s e a r e t h e q u e s t i o n s he g r a p p l e s w i t h in his r e m a r k a b l e r e p o r t f r o m
t h e f r o n t l i n e s . C o m b i n i n g t h e a c t i o n of M a r k B o w d e n ' s Black H a w k D o w n w i t h t h e l i t e r a r y b r i o of T i m O'Brien's The Things T h e y C a r r i e d ,
The G o o d S o l d i e r s is a n u n f o r g e t t a b l e w o r k of r e p o r t a g e . A n d in t e l l i n g t h e s t o r y of t h e s e g o o d s o l d i e r s , t h e h e r o e s a n d t h e r u i n e d , D a v i d
Finkel h a s also p r o d u c e d a n e t e r n a l t a l e — n o t j u s t of t h e I r a q W a r , b u t o f all w a r s , f o r all t i m e .

Special Offers a n d Product P r o m o t i o n s


E x p l o r e m o r e g r e a t deals o n lOOO's of t i t l e s in o u r B a r g a i n Book s t o r e .

Frequently Bought Together
C u s t o m e r s b u y t h i s b o o k w i t h WAR by Sebastian Junger Hardcovei

$17.81

Price For Both: $ 2 8 . 2 1

E

5h9w ^v;il;t,ilitY ;n(l shipping jjgtjiils

http://www.amazon.com/The-Good-Soldiers-David-Finkel/dp/B003ZK50U2/ref-sr_l_17ie... 8/2/2012


Page 2 of 3

Amazon.com: The Good SoW'-'-s: David Finkel: Books

23085

Page 1 of 5

Customers Who Bought This I t e m Also Bought

B

un'

re«GKT
Ml«
klin

23!
kWU

The Forever War
> Dexter Filkins
(164)
Paperback
$10,85

The Good Soldiers
> David Finkel

Paperback
$10,20

(147)

They Fought for Each Other:
The Triumph and ,.,
> Kelly Kennedy
(28)
Hardcover
$10.00

Black Hawk Down: A Story of
Modern War
> Mark Bowden
(713)

Paperback
$10.85

Editorial Reviews

Amazon.com Review

Book D e s c r i p t i o n It was the last-chance moment of the war. In January 2007, President George W. Bush announced a new strategy for
Iraq. He called it "the surge." "Many listening tonight will ask why this effort will succeed when previous operations to secure Baghdad did
not. Well, here are the differences," he told a skeptical nation. Among those listening were the young, optimistic army infantry soldiers of
the 2-16, the battalion nicknamed the Rangers. About to head to a vicious area of Baghdad, they decided the difference would be them.
Fifteen months later, the soldiers returned home forever changed. Pulitzer Prize-winning Washington Post reporter David Finkel was with
them in Bagdad almost every grueling step of the way.

What was the true story of the surge? Was it really a success? Those are the questions he grapples with in his remarkable report from the
front lines. Combining the action of Mark Bowden's Black Hawk Down with the literary brio of Tim O'Brien's The Things They Carried, The
Good Soldiers is an unforgettable work of reportage. And in telling the story of these good soldiers, the heroes and the ruined, David Finkel
has also produced an eternal tale--not just of the Iraq War, but of all wars, for all time.

Faces of t h e Surge
Beneath every policy decision made in the highest echelons of Washington about how a war should be fought are soldiers who live with
those decisions every day. These are somie of the faces of the U.S. strategy known as "the surge," as photographed by David Finkel, author
of The Good Soldiers.

Soldiers of the 2-16 Rangers wait
for permission to enter a mosque.

Two soldiers try to collect themselves after
their Humvee was hit by a roadside bomb.

http://www.amazon.com/The-Good-SoIdiers-David-Finkel/dp/B003ZK50U2/ref=sr_l_l?ie... 8/2/2012
W
$17,81
Hardcover
> AR
Sebastian (318)
Junger

Amazon.com: The Good SolH-'-^rs: David Finkel: Books

Page 3 of 3
23086

Sergeant Adam Schumann, regarded as
one of the battalion's best soldiers on the
day he was sent home with severe post
-traumatic stress disorder.

From Publishers Weekly
starred Review. A success story in the headlines, the surge in Iraq was an ordeal of hard fighting and anguished trauma for the American
soldiers on the ground, according to this riveting war report. Washington Post correspondent Finkel chronicles the 15-month deployment of
the 2-16 Infantry Battalion in Baghdad during 2007 and 2008, when the chaos in Iraq subsided to a manageable uproar. For the 2-16,
waning violence still meant wild firefights, nerve-wracking patrols through hostile neighborhoods where every trash pile could hide an lED,
and dozens of comrades killed and maimed. At the fraught center of the story is Col. Ralph Kauzlarich, whose dogged can-do optimism—his
motto is It's all good—pits itself against declining morale and whispers of mutiny. While vivid and moving, Finkel's grunt's-eye view is
limited; the soldiers' perspective is one of constant improvisatory reaction to attacks and crises, and we get little sense of exactly how and
why the new American counterinsurgency methods calmed the Iraqi maelstrom. Still, Finkel's keen firsthand reportage, its grit and impact
only heightened by the literary polish of his prose, gives us one of the best accounts yet of the American experience in Iraq. Photos. (Sept)
Copyright ® Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.
See all Editorial Reviews

Product Details
Hardcover: 304 pages
Publisher: Farrar, Straus and Giroux; 1 edition (September 15, 2009)
Language: English
I S B N - 1 0 : 0374165734
A S I N : B003ZK50U2
P r o d u c t D i m e n s i o n s : 9.1 x 6.1 x 1.7 inches
S h i p p i n g W e i g h t : 15.2 ounces (View shipping rates and policies)
(147 customer reviews)

A v e r a g e Customer Review:
A m a z o n Best Sellers Rank:
#29 in Books > History
#33 in Books > History
#62 in Books > History

#36,547 in Books (See Top 100 in Books)
> Military > I r a q War
> Middle East > I r a q
> M i l i t a r y Science

Would you like to u p d a t e p r o d u c t i n f o , give feedback o n images, or t e l l us a b o u t a l o w e r price?

More About t h e Author
> Visit Amazon's David Finkel Page
i
;

'

Biography
David Finkel is a staff writer for The Washington Post and is also the leader of the Post's national reporting team. He won the
Pulitzer Prize for explanatory reporting in 2006 for a series of stories about U.S.-funded democracy efforts in Yemen.

http://www.amazon.com/The-Good-Soldiers-David-Finkel/dp/B003ZK50U2/ref=sr_l_l?ie... 8/2/2012

23087

ATTACHMENT

Page 1 of3

David Finkel I Authors I Mac^-Uan

macmillan

23088

Search

DOOKO

DAVID FINKEL

Uke I

AUTIIORO

Jmtti-

EB

OOlilMUlim'

m
SIGN UP FOR
AUTHOR UPDATES

David F i n k e l is the author of The Good Soldiers, listed a best book of 2009 by
the New York Times, Chicago Tribune, Slate.com, and The Boston Globe, and
winner of the Helen Bernstein Book Award for Excellence in Journalism. He is a
staff writer for The Washington Post, and is also the leader ofthe Post's national

MACMILLAN NEWSLETTER

reporting team. He won the Pulitzer Prize for explanatory reporting in 2006 for a
series of stories about U.S.-fimded democracy efforts in Yemen. Finkel lives in
Silver Spring, Maryland, with his wife and two daughters.

Sign up to receive
information about new
books, author events,
and special offers.

Sign up now
David Finkel
© Liictan Pertains

Official Sites
Author Facehook

Jump to:

Medio

MEDIA

Watch

Author on the Web

Related Links

Wi9

Books by the Author

ComTiuniity

Life In Iraq - David
Finkel, author of The
Good Soldiers

Life in Iraq - David Finkel, author of The Good Soldiers
In a video edited by The Washington Post, author David Finkel candidly discusses the
uncertainty of life in Iraq,

Share This

http://us.macmillan.com/author/davidfinkel

8/2/2012

Page 2 of 3

David Finkel I Authors I Mac"-'Ian

MORE MEDIA

23089

Access moie relatt'cl nmais Ofi Ww web

David Finkel o n GritTV

David Finkel o n The Colbert Report

David Finkel o n M o r n i n g Joe

David Finkel o n Charlie Rose

AUTHOR ON THE
WEB
LATEST ON FACEBOOK

The Good Soldiers on Facebook
Like

1,718

F^«bocil< ioa3\ pluyiri

David Finkel

BOOKS
BY THE AUTHOR

OFFICIAL SITES

RELATED LINKS

.•\uthor Facebook

wi g

The Good Soldiers
David Finkel
Picador

A BEST BOOK OF THE YEAR FOR: THE NEW YORK TIMES
CHICAGO TRIBUNE SLATE.COM THE BOSTON GLOBE THE
KANSAS CITY STAR THE PLAIN DEALER (CLEVELAND)
THE

AVAILABLE IN:

@@

http://us.macmillan.com/author/davidfinkel

Buy

8/2/2012

Page 3 of 3

David Finkel I Authors | Mac-'-'Ian

COMMUNITY

23090

Commandposts.com
LATEST BLOG POSTS

Wednesday, August 01, 2012 7:54:23 AM
Clock: Developing the Pistol ofthe

Future

Monday, July 30, 2012 11 04 34 AM

The SAS and David Stirling's Leap of Faith

Friday July 27, 2012 5:23:09 AM
Night Over Day Over Night

LATEST ON TWITTER

LATEST ON FACEBOOK

Command Posts on Facebook
Like 2,262
Command Posts shared Power
Point Ranger's photo,
Congrats to Sergeant Hancock
for his successes while
competing in the Olympic
Games.

Si

Here's to hoping a few days of
R&R meet him upon his return
home.

Join the conversation

Fitflboc^social plugin

{ABOUT}
AhoiK Macmillan
Contact Ifs

{PUBLISHERS)

{SERVICES}
Publishers
Booksellers
Academic
Lihraiy
Catalogs
MacTitiilaii Speakers

{STORE}
Shoppiiiil Cart
Your Account
Help

Privacy Notice

Terms of Use

Site Map

Farrar. Straus and Giroux
First Second
HennjUolt&Co. •
Macmillan Audio
Nature fhtbUshimj (rroiip
Palgrave Macmdlan
I^cador
()itick and Dirty Tips
Scientific American
St, Martin's iVcs.s
Tor/Forge
Distributed I^iblishers

Visit Our UK Site

http://us.macmillan.com/author/davidfinkel

EDUCATION

CHILDREN'S

Macrnilla>t Higher F.ducatiim
Ik-dford/Sl. Murlin's
H'./y. Freeiuan
Worth }hd->Ushcrs
HFW High School

FSG Books/or Young Readers
Feiwel ii- Friends
Holt Books for Young Readers
Kingfisher
Roaring Brook
Priddy Hooks
Starscape/Tor Teen
Square Fish
Young Listeners
Macmillan Kids

/ layden -McJ^'eil
Palgrave Macvnllan
ly-ade Books For Courses

)2011 Macmillan

8/2/2012

23091

Appellate Exhibit 235
Enclosure 1
has been entered into
the record as a CD/DVD
and will be maintained
with the original
Record of Trial

23092

UNITED STATES OF AMERICA
GOVERNMENT RESPONSE TO
DEFENSE MOTION FOR
JUDICIAL NOTICE OF
EXCERPTS FROM DAVID FINKEL'S
BOOK "THE GOOD SOLDIERS"

V.

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

17 August 2012
RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny, in part, the Defense Motion for Judicial Notice of Excerpts
from David Finkel's Book "The Good Soldiers." Specifically, the United States objects to the
Court taking judicial notice that Finkel's book contains a verbatim transcript of the video
charged in Specification 2 of Charge II. The United States does not object to the Court taking
judicial notice that Finkel's book was published prior to the leak of the video charged in
Specification 2 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. Additionally, the United States stipulates to the fact that David Finkel operated as an
embedded reporter with 2-16 Battalion, 4th Brigade Combat Team, 1st Infantry Division while
the Battalion was deployed to Iraq in 2007. See Def Mot. at 2. The United States also stipulates
to the fact that on 5 April 2010, WikiLeaks published a video taken from an American Apache
helicopter on 12 July 2007, which depicts an engagement that resulted in the death of two
Reuters employees. Id.

WITNESSES/EVIDENCE
The United States requests this Court consider the referred Charge Sheet in support of its
response.

1

APPELLATE E X H m i T _ g ] ^
PAGE R E F E R E N C E D : ^ ^
PAGE
^OF
PAGES

23093

LEGALAUTHORITV AND

ARGUMENT

Ajudicially noticed tact "must be one not subject to reasonable dispute in that it is either
(l)generally known universally,locally,or in the area pertinent to the event or (2)capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned." Military RuleofEvidence (MRE)
201(b). Judicial notice of tacts serves asa
substitute tor testimonial,documentary,or real evidence. Stephen A.Saltzburg, etal.,^^^^^^^^
^^^^.^^.^^^^^^^^^^i^^^^^^201.02^1j(7thed.2011). Additionally,judicial notice promotes
judicial economy because it relievesaproponent from tbrmally proving certain facts thata
reasonable person would not dispute. ^^.^
The defense requests this Court takejudicial notice ofthe fact that "The Good Soldiers"
containsa"verbatim transcript ofthe audio from the video charged in Specifrcation2of Charge
II." Def Mot. at 1. As evidence, the detense provides an excerpt from the book published in
^ i ^ ^ ^ . ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ . ^ ^ . ^^^AttachmentAto the Defense Motion. While it appears the excerpt
describes, in narrative tbrm, parts ofthe same engagement captured by the video charged in
Specifrcation2of Charge II, there is no way to determine whether the book excerpt includesa
"verbatim" transcript ofthe video if the defense has not provided the Court withatranscript of
the video. In this case, the defense has failed to provide sufficient evidence to allow the Court to
makeadetermination by "resort to sources whose accuracy cannot reasonably be questioned."
MRE 201(b)(2). Accordingly,this Court should deny the defense request to take judicial notice
ofthe fact that "The Good Soldiers" containsaverbatim transcript ofthe video charged in
Specifrcation2of Charge II.

CONCLUSION
The United States respectfully requests this Court DENY, in part, the Defense Motion for
Judicial Notice of Excerpts from David Finkel's Book "The Good Soldiers." The defense has
provided no evidence that "The Good Soldiers" contains a verbatim transcript of the video
charged in Specification 2 of Charge II.

MORROW
'T, JA
Assistant Trial Counsel

' The defense's recitation of judicial notice law is problematic. The two cases they cite - United States v. Brown
and United States v. Spann - do not, in any conceivable way, buttress the propositions for which they are offered.
See Def Mot. at 3.

23094

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 17 August 2012.

IwDK, / Ww/*^

/ODEAN MORROW
6CPT, JA
Assistant Trial Counsel

23095

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE MOTION FOR
v. JUDICIAL NOTICE AND

ADMISSION OF PUBLIC
MANNING, Bradley E., PFC STATEMENTS
U.S. Army,
Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall, DATED: 3 AUGUST 2012
Fort Myer, VA 22211

RELIEF SOUGHT

1. PFC Bradley E. Manning, by and through counsel, moves this court, pursuant to Military
Rule of Evidence (M.R.E.) 20] and M.R.E. 801(d)(2)(D) to take judicial notice of requested
adjudicate facts, and to admit these facts as admissions by a party opponent at trial.

BURDEN OF PERSUASION AND BURDEN OF PROOF

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

FACTS

3. PFC Marming is charged with ?ve speci?cations of violating a lawful general regulation, one
speci?cation of aiding the enemy, one speci?cation of disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight speci?cations of communicating
classi?ed information, ?ve speci?cations of stealing or knowingly converting Government
property, and two speci?cations of knowingly exceeding authorized access to a Government
computer, in violation of Articles 92, 104, and 134, Uniform Code of Military Justice (UCMJ)
10 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 18 March 2011. The current charges were preferred on 1 March 2011.
On 16 December through 22 December 2011, these charges were investigated by an Article 32
Investigating Of?cer. The charges were referred to a general court-martial on 3 February 2012.

5. Over the past twenty-four months, agents of the Government have made several public
statements regarding the information released by WikiLeaks. The agents for the Government

*4




APPELLATE exmmr (77
mos REFERENCED:
PAGE PAGES

mu

23096

have made the following statements within the scope of their authority and during their
employment by the Government:

a. GTMO Documents: ?The Wikileaks releases include Detainee Assessment Briefs (DABs)
written by the Department of Defense between 2002 and early 2009. These DABs were written
based on a range of information available then. The Guantanamo Review Task Force,
established in January 2009, considered the DABs during its review of detainee information. In
some cases, the Task Force came to the same conclusions as the DABs. In other instances the
Review Task Force came to different conclusions, based on updated or other available
information. The assessments of the Guantanamo Review Task Force have not been
compromised to Wikileaks. Thus, any given DAB illegally obtained and released by Wikileaks
may or may not represent the current view of a given detainee.? See Attachment A.

b. SIGACTS: President Obama ?the fact is these documents do not reveal any issues that have
not already informed our public debate on Afghanistan. . .. Indeed, they point to the same
challenges that led me to conduct an extensive review of our policy last fall.? See Attachment
B.

Marine Corps Col. David Lapan, a deputy assistant secretary of defense for media operations,
told NBC News that a preliminary review by the Pentagon ?assessment? team has so far not
identi?ed any documents whose release could damage national security. See Attachment C.

Former Defense Secretary Robert Gates said in an August 16"? 2010 letter to the head of the
Senate Armed Services Committee that the leak had not revealed any ?sensitive intelligence
sources or methods.? The only real concern noted was the possibility that names of cooperative
Afghan nationals may be placed at risk. See Attachment D.

Col. Lapan told reporters that a Pentagon team had reviewed the Iraq war ?les it believes
WikiLeaks has, sparming a time period between 2003 and 2010. He described them as largely
?ground-level? ?eld reports which could expose the names of Iraqi individuals working with the
United States and give insight to Iraqi insurgents about U.S. operations, similar to the Afghan
war ?les. See Attachment D.

c. Cables: Secretary Gates? Statement: ?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

Secretary of State Hillary Rodham Clinton at an international security summit reiterated an
earlier statement that the leaking of sensitive US diplomatic documents would not hinder

23097

Washington?s work with other countries. have certainly raised the issue of the 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.? She was speaking at a press brie?ng
at the summit of the 56- member Organization for Security and Cooperation in Europe (OSCE)
in the Kazakh capital Astana, just days after the documents were released by the whistleblower
website WikiLeaks. have not had any concerns expressed about whether any nation will not
continue to work with and discuss matters of importance going forward.? See Attachment

Secretary Clinton has also been quoted on the record saying the leaks merely show, ?diplomats
doing the work of diplomacy.? She further noted, ?In a way, it should be reassuring, despite the
occasional tidbit that is pulled out and unfortunately blown up. The work of diplomacy is on
display, and you know, it was not our intention for it to be released this way -- usually it takes
years before such matters are. But I think there?s a lot to be said about what it shows about the
foreign policy of the United States.? See Attachment

Vice President Biden: don?t think there?s any damage. I don?t think there?s any substantive
damage, no. Look, some of the cables that are coming out here and around the world are
embarrassing.? See Attachment H.

The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and
Chairman of the Committee on the Judiciary, explained at a hearing before his Committee on 16
December 2010, are too quick accept government claims that the risk national security and
far too quick to quick to forget the enormous value of some national security leaks.? He went on
to quote Secretary Gates, (Gates) have heard the impact of these releases on our foreign policy
described as a meltdown, as a game changer, and so on. I think those descriptions are fairly
signi?cantly overwrought.? See Attachment 1.



6. The Defense does not request any witnesses be produced for this motion. The Defense
respectfully requests this court to consider the referenced attachments to this motion in support
of its request.

LEGAL AUTHORITY AND ARGUMENT
A. The Statements are Proper for Judicial Notice Under M.R.E. 201

7. In the interest of judicial economy, M.R.E. 201 relieves a proponent from formally proving
certain facts that reasonable persons would not dispute. There are two categories of adjudicative
facts that may be noticed under the rule. First, the military judge may take judicial notice of
adjudicative facts that are ?generally known universally, locally, or in the area pertinent to the
event.? M.R.E. 201(b)(1). Under this category of adjudicative facts, it is not the militaryjudge?s
knowledge or experience that is controlling. Instead, the test is whether the fact is generally
known by those that would have a reason to know the adjudicative fact. US. v. Brown, 33 M.J.

23098

706, 709 (N .M.C.A 1992). The second category of adjudicative facts is those ?capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.? M.R.E. 201(b)(2). This category of adjudicative facts includes government
records, business records, information in almanacs, scienti?c facts, and well documented reports.
Id. See also, US. v. Spann, 24 M.J. 508 (A.F.C.M.R. 1987). Moreover, judicial notice may be
taken of a periodical. US. v. Needham_ 23 M.J. 383, 385 (C.M.A. l983)(taking judicial notice
of Drug Enforcement Agency publication). The key requirement for judicial notice under this
category is that the source relied upon must be reliable.

8. Under M.R.E. 201(d), a military judge must take judicial notice if the proponent presents the
necessary supporting information. In making the determination whether a fact is capable of
being judicially noticed, the military judge is not bound by the rules of evidence. 1 STEPHEN A.
SALTZBURG, LEE D. SCHINASI, AND DAVID A.SCHLUETER, MILITARY RULES OF
EVIDENCE MANUAL 201 .02[3] (2003) Additionally, the information relied upon by the
party requesting judicial notice need not be otherwise admissible. Id The determination of
whether a fact is capable of being judicially noticed is a preliminary question for the military
judge. See M.R.E. l04(a).

9. The Defense requests this court take judicial notice that the statements outlined above were
made by the attributed individuals. Here, the statements fall under the second category of facts
contemplated by M.R.E. 201(b)(2). Each statement is capable of accurate and ready
determination, as each appeared in a mainstream news publication. Indeed, a quick web search
for the substance of each quote results in reports from multiple media outlets. Moreover, the
accuracy of the sources carmot be reasonably questioned. The statements were made by high-
level government of?cials and were covered by a variety of respected journalistic outlets.
Because the statements can be veri?ed by reputable sources, they are the appropriate subject of
judicial notice. M.R.E. 201(b)(2)

B. The Statements are Admissible as Non-Hearsay Under M.R.E. 80l(b)(2)

10. Any government agency affected by the alleged leaks should be considered a party
opponent. Id. US. v. American Tel. Tel. Co., 498 F.Supp. 353 (D.C.D.C. 1980) is instructive.
At issue were statements made by representatives of various agencies of the Executive Branch at
FCC proceedings.1 The court rejected the government argument that the entire Executive Branch
should not be considered a party opponent, noting that the implications of the case extended
beyond just the Department of Justice (DOJ). Id at 357. The court also rejected the
govemment?s contention that it should not have to offer explanations for the statements because
the govemment?s size and the varying interests of the numerous government agencies would
make offering such an explanation burdensome. The court held:

[T]he underlying theoretical premise of the government?s argument is troubling
and carmot be accepted. Its argument in effect is that, whenever the purpose of a
rule-whether of pleading or of evidence-would be better effectuated by altering

Speci?cally at issue was a Brief for the Administrator of General Services, testimony of the Director for
Telecommunications Policy, Of?ce of the Secretary of Defense and Proposed Findings of Fact and Argument of the
Secretary of Defense. Id. at 357.

4



the con?guration of a party to which it is applicable, then the de?nition of that
party must be changed in midstream. Carried to its logical conclusion, this
position would force the courts to change the shape and size of parties,
particularly in complex litigation, depending upon the part of the case being tried
and the principles of law and procedure that may be relevant at any given
moment. These chameleon-like shifts in the identity of the parties would upset the
orderly conduct of such litigation.

For these reasons, the Court rejects the proposition that the plaintiff in this case
for the purposes of the rules of evidence is the Department of Justice; it holds, as
it did on September 11, 1978, that the plaintiff is the United States; and it
concludes that the statements contained in the three test case documents in
question (see note 6 supra) constitute admissions by a party-opponent under Rule
801(d)(2). Id.

11. Like American Tel. Tel. Co., this case has far?reaching implications. Indeed, more than
just the Departments of the Army and Defense have an interest in the instant case. A number of
government agencies, including, but not limited to, the Department of State also had data
compromised in the leaks with which PFC Manning is charged. Moreover, the Department of
Justice has cooperated extensively in the investigation of the leaks. Further, as the number of
damage assessments makes clear, a large number of agencies have reviewed the effect the leaks
had on their agency. Presumably, these damage assessments were done because the agency was
implicated in some way. Because more than just the Departments of the Army and Defense have
been implicated by the leaks at issue in this case, those implicated agencies are also party
opponents, Id.

12. The statements are admissible under M.R.E. M.R.E. 801(b)(2)(B) establishes
that ?a statement of which the party has manifested the party?s adoption or belief in its trut
quali?es as non-hearsay. The court in US. v. Kattar, 840 F.2d 118, 130 (1st Cir. 1988)
addressed this exception. There, the appellant was a member of the Church of Scientology and
attempted to introduce statements the government had included in motions for the prosecution of
members of the Church of Scientology in an unrelated matter. The court held that DOJ was most
certainly a party opponent in a criminal case and the proffer of those statements to a Federal
court was an adoption of their truth. Thus, the court held the statements by DOJ were
admissible.

13. Here, like in Kattar, the parties have adopted the truth of their statements. While these
statements were not made as part of court ?ling, each statement for which judicial notice has
been requested was made by a high ranking government official speaking in his/her of?cial
capacity. Each statement was made on the record and within the scope of each speaker?s
government employment and it is fair to assume that the speaker was asserting the content of the
statement as the truth. Indeed, any argument by trial counsel to the contrary would serve only to
question a high-ranking government of?cial?s veracity for truthfulness. Because each speaker
has manifested a belief in the truth of his/her statement the statements fall squarely within the
non-hearsay contemplated by M.R.E.

23100

14. The statements are also admissible pursuant to M.R.E. Statements by a
party?s agent or servant are admissible against that party as long as those statements fall within
the agent?s or servant?s scope of authority and are made while the agency or employment
relationship continued. M.R.E. Statements made in the scope of employment by a
government employee may properly be admitted. Commercial Contractors v. U.S., 35
Fed. Cl. 246, 256 (Fed. C1. 1996). The court in US. v. Babat, 18 M.J. 316 (C.M.A. 1984) held,
?statements someone makes through an authorized agent are imputable to the principle and may
be admitted in evidence against him.? Id. at 324. The rationale for this rule is that agents or
employees have an incentive not to make statements that might damage the party who retains
them.

15. While some circuit courts have held that not all statements by government agents should
been considered statements by a party opponent under rule such holdings are
predicated on the idea that an individual cannot bind the sovereign. US. v. Garza, 448 F.3d 294
(5th Cir. 2006). However, where a government agent is capable of binding the sovereign,
statements from that agent are admissible under US. v. Salerno, 937 F.2d 797,
812 (2d. Cir. 1991)(holding that opening and closing statements made by prosecutor in a
different, but related criminal prosecution were admissible to show the government once had
expressed a different theory about the alleged crime), see also, US. v. Johnson, F.Supp.2d
-, 2012 WL 1836282 (N .D. Iowa 2012)(discussing the admissibility of inconsistent factual
assertions and inconsistent opinions), US. v. Van Grz?in, 874 F.2d 634, 638 (9th Cir.
1989)(holding that a government manual on ?eld sobriety testing issued by the government was
admissible where the agency was a relevant and competent section of the government), US. v.
Branham, 97 F.3d 835, 851 (6th Cir. 1996)(noting that the federal government is a party-
opponent of the defendant in a criminal case and a statements by a paid informant were
admissible).

16. Here, each of the statements for which judicial notice is requested was made by an
individual with the power to bind the sovereign. The statements in questions are not the musings
of random Soldiers posted to a blog. Rather, each individual either serves as a high-level
government bureaucrat, heading a government agency with the ability to bind the government
through policy-making decisions, or, as part of his employment, spoken on behalf of those who
did/do have the ability to bind the sovereign. Moreover, these individuals head agencies relevant
to this case because each agency was directly affected by the alleged leaks. Because the
statements were made by party opponents within the scope of their employment and the party
opponents have the ability to bind the sovereign their statements should be deemed admissible
under M.R.E. 801

23101

CONCLUSION
17. Based on the above, the Defense requests that the Court to take judicial notice of requested
adjudicate facts, and to admit these facts as admissions by a party opponent at trial.

Respectfully Submitted

/74

JOSHUA J. OMAN
CPT, JA
Defense Counsel

ATTACHMENT A

Guantanamo Files - U.S. Go^

SI) C

ment Statement - NYTimes.com

]]0 rk { t m f S Reprints

This copy is for your personal, noncommercial use only. You can order presentation-ready copies tor distribution to
your colleagues, clients or customers here or use ttie "Reprints" tool that appears next to any article. Visit
www nytreprints.com for samples and additional information. Order a reprint of this article now.

Page 1 of 2
23103

BASED ON THE

TRIUMPHANT
TRUE STORY

April 24, 2011

A Statement by the United States
Government
"It is unfortunate that The Nevs^York Times and other nev^^s organizations have made the
decision to publish numerous documents obtained illegally by Wikileaks concerning the
Guantanamo detention facility. These documents contain classified information about
current and former GTMO detainees, and w^e strongly condemn the leaking of this sensitive
information.
"The Wikileaks releases include Detainee Assessment Briefs (DABs) written by the
Department of Defense between 2002 and early 2009. These DABs were written based on a
range of information available then.
"The Guantanamo Review Task Force, established in January 2009, considered the DABs
during its review of detainee information. In some cases, the Task Force came to the same
conclusions as the DABs. In other instances the Review Task Force came to different
conclusions, based on updated or other available information. The assessments of the
Guantanamo Review Task Force have not been compromised to Wikileaks. Thus, any given
DAB illegally obtained and released by Wikileaks may or may not represent the current view
of a given detainee.
"Both the previous and the current Administrations have made every effort to act with the
utmost care and diligence in transferring detainees from Guantanamo. The previous
Administration transferred 537 detainees; to date, the current Administration has
transferred 67. Both Administrations have made the protection of American citizens the top
priority and we are concerned that the disclosure of these documents could be damaging to •
those efforts. That said, we v\dll continue to work with allies and partners around the world
to mitigate threats to the U.S. and other countries and to work toward the ultimate closure of
the Guantanamo detention facility, consistent with good security practices and our values as
a nation."
Geoff Morrell
Pentagon Press Secretary

http://www.nytimes.com/2011/04/25/worId/guantanamo-files-us-government-statement.ht...

7/30/2012

Guantanamo Files - U.S. Go'

•'ment Statement - NYTimes.com

Page 2 of 2
23104

Ambassador Dan F r i e d
Special Envoy f o r Closure o f the Guantanamo Detention Facility

http://www.nytimes.com/2011/04/25/world/guantanamo-files-us-govemment-statement.ht...

7/30/2012

ATTACHMENT

Obama on WikiLeaks: 'Docu*^ ^ts Don't Reveal Any Issues that Have '^ Already Infor...

('http/^cnews.qo.com/wnl
(hUp://abcnews. Qo.com/nightiine)
(hltD://abcnews.qo.com/tiiisweeki
HOT TOPICS: Jainws Holmes (hHD:f/abcmw@,ao.com/yS/lames-h('lni9*-T9C9*,-f9rrnq|-tnuM?f-charaeG
Page 1 of 7
23106

lhitp:,//abcnews.qo.com.^2020)
50) • Olympic: Search

Q

thllp //abcnews.go.com^qma)
fifS^WP^fws,ao.com/)

ihttp://^bcnews.flo.com/politics)
fhttp://abcnews.qo.com/videol
(http://abcpews.qo.com/blotterl
> PQUTjCAl, ^J"y^SV^?r^y^ABCNEWS,00 CO^M^1lOGS/POLlTIC5/POLlT|CA^-•PUNCH/)
Aij^f^VcAa BLOGS i/fii.OGS;l > POUTICS IHTTP .7ABCNuS^°G0 COM/BLOGS/PQUTICSl
(http://abcnews.qQ.com/busines5)
fhttp://abcnews.qo.corT>/health)
(http://abcnews.qo,com/entertainment)
Money
Entertainment
• ^ y i t t p j ^ a b ^ i t w s go, j j o n ' h ^ v e l l

rhttp://abcnews.go.com/blogs/politics/politicalpunch/)
HEADLINES

(/[U,(1GS/1'01.IT1CS/)

•f/BU>l-.'i/ll[i.-\[)l.lNL'.S/1

.H.EA.[fHEv]o#Ltl(.;.S/UEALTm

UEESHLE

imCOS/UEEZD^A&T

THE PRESIDENTIAL PLANNER
IHTTP://ABCNEWS.GO.COM/BLOGS/POLITICS/2CI10/07rrHE
TECHiBeE.eiOtNTIAU^^ftflMERl«--HNOLO( jV/l

ENTERTAINMENT

f/llLOnS/ENTF.RTAINMENT/1

BUSINESS

TODAY'S Q'S FOR O S WH
7/27/10
IHTTPJ/ABCMEWS.GO.COM/BLOGS/POLITIC^,^
.QS-FOROS-WH-72710/l

m

About Political Punch
Political coverage and musings on pop culture from ABC
News Senior White House Correspondent Jake Tapper
and the ABC News White House team.

By Alex Pepper

Jul 27,20101:44pm

Obama on WikiLeaks:
'Documents Don't Reveal
Any Issues that Haven't
Already Informed our
Public Debate'
JJ

liS

ABC News Broadcasts
20/20

(HTTP:/ABCNEWS.GO.COM/BLOGS/TOPICS/SHOV
GOOD MORNING AMERICA
(HTTP:/ABCNEWS.GO.COM/BLOGS/TOPICS/SHOV
-MORNING-AMERICA/1

NIGHTLINE
IHTTP:/ABCNEWS.GO.COM/BLOGS/TOPICS/SHOV
THIS WEEK
IHTTP:/ABCNEWS.GO.COM/BLOGS/TOPICS/SHOV
-WEEKA

ABC News' Y u n i i dc N i c s

flittl>://al>cricws.go.conl/Politics/storv?

i t l - 6 j ' ^ 2 0 8 t ) & p a g e = i ) and S u n l c n M i l l e r
(httD!//abcnew.s.go.com/l'olitics/stoi-v?id=70iojiJ&|)age=i)
Report:

WHAT WOULD YOU DO
IHTTP://ABCNEWS.G0.C0W/BLDGS/T0PICS/SH0V

-WOULD-YOU-DOn
WORLD NEWS

President Barack Obama spoke publicly about the WikiLeaks incident for the
first time today, expressing concern about the disclosure of tens of thousands
of documents, but at the same time, downplaying the content.

IHTTP://ASCNEWS.GO.COM/BLOGSn'OPICS/SHOV
-NEWS/1
WORLD NEWS NOW

"While I'm concerned about the disclosure of sensitive information from the

(HTTP://ABCNEWS GO.COM/BLOGS/TOPICS/SHOV

battlefield that could potentially jeopardize individuals or operations, the fact

-NEWS-NOW/I

is, these documents don't reveal any issues that haven't already informed our
public debate on Afghanistan. Indeed, they point to the same challenges that

WORLD NEWS WITH DIANE SAWYER

led me to conduct an extensive review of our policy last fall," Mr. Obama said.

IHTTP://ABCNEWS.GO.COM/BLOGS/TOPICS/SHOV
•NEWS-WITH-DIANE-SAWYER/I

The President reminded reporters in the Rose Garden that that policy review
led to a substantial increase in troops and a strategy that he believes can lead
to victory.

http://abcnews.go.corn/blogs/politics/2010/07/obama-on-wikileak^^

7/30/2012

Obama on WikiLeaks: 'Docur- ns Don't Reveal Any Issues that Havc^'^ Already Infor...

Page 2 of 7
23107

"Now we have to see that strategy through. And as I told the leaders, I hope
the House will act today to join the Senate, which voted unanimously in favor
of this funding, to ensure that our troops have the resources they need and
that we're able to do what's necessary for our national security," the President

The House is expected to vote today on a war funding bill for the conflicts in
Afghanistan and Iraq.

The President spoke after one of a series of regularly scheduled meetings with
Congressional leaders from both parties - including House Speaker Nancy
Pelosi, Senate Majority Leader Harry Reid, Senate Minority Leader Mitch
McConnell, House Minority Leader John Boehner, and House Majority
Leader Steny Hoyer.

In addition to the war funding bill, the President said also urged both parties
to pass the small business aid bill. The President heads to Edison, NJ
tomorrow, where he will hold a roundtable discussion with local business
owners, as part of a larger series of trips focused on the economy.

Mr. Obama pledged to keep pushing for broader energy reform including a
climate change regulation component, despite last week's setbacks on the Hill
with Senate Democrats abandoning climate change legislation.

"The Senate is now poised to act before the August recess, advancing
legislation to respond to the BP oil spill and create new clean-energy jobs.
That legislation is an important step in the right direction, but I want to
emphasize it's only the first step. And I intend to keep pushing for broader
reform, including climate legislation.'
The President said he also urged Senate Minority Leader Mitch McConnell to
allow judicial nominees to be confirmed. Mr. Obama expressed his
frustration over a number of nominees who have been voted out of
committee, but have not been allowed to begin service because they have yet
to have a full vote in the Senate, The President accused "some in the
minority" of using "parliamentary procedures time and again" to hold up
these nominations.
33

lexi

I

MORE FROM ABC NEWS
' S e i n f e l d ' Star J u m p s I n t o A s s a u l t
W e a p o n Debate
fhttp://abcnews.qo.com/bloqs/poMtics/2012/07/seinfeld
-star-lumps-into-assault-weapondebate/1
L I m b a u q h ' s 'Dark K n l g t i t R i s e s '
C o m m e n t s 'Bizarre,' Says Nolan

(http://abcnews.qo.com/bloqs/entertalnment/2012/07/limbaucihs
-dark-kniqiit-rises-comments-bizarre
-savs-nolan/)
Governor W e l c o m e s President
Obama to Texas By D e m a n d i n q A n
Apology
{http://abcnews.go.com/bloQs/politics/2012/07/qovemor
-welcomes-president-obama-totexas-bv-demandinq-an-apoloqy/l
Half o f A m e r i c a n s D o Not K n o w t h e
President's Religion
(http://abcnews.go.com/bloq5/politics/2012/07/half
-of-americans-do-not-know-thepresidents-reliqion/)
D i c k C h e n e y : P i c k i n g S a r a h Palln
f o r VP W a s ' A
Mistake' (http://abcnews.qo.com/blog5/politlcs/2012/07/dlck
•Cheney-picking-sa rah-palin-for-vpw a s ^ a - m i stake/}
O c t o m o m A s k s Fans t o Send Money
for a New Home
f http://abcnews.qo.com/bloas/entertainment/2012/07/octomom

http://abcnews.go.com/blogs/politics/2010/07/obama-on-wikileaks-documents-dont-reveal...

7/30/2012

ATTACHMENT

Gates: Limited damage from '"'kiLeaks - Marine Corps News | News " m Afghanistan ...

Page 1 of 3
23109

Subscribe | Subscription Renewal | Advertise | About | Customer Service | n RSS | Digital
Edition | Newsletters
Log in

http://www.marinecorpstimes.com/news/20io/io/ap-limited-damage-from-leak-ofafghan-war-logs /

Gates: Limited damage from
WikiLeaks
By Robert Burns - The Associated Press
Posted : Friday Oct 15, 2010 16:45:52 EDT
WASHINGTON — No U.S. intelligence sources or practices were compromised by the posting of
secret Afghan war logs by the WikiLeaks website, the Pentagon has concluded, but the military
thinks the leaks could still cause significant damage to U.S. security interests.
The assessment, outlined in a letter obtained Friday by The Associated Press, suggests that some
of the Obama administration's worst fears about the July disclosure of almost 77,000 secret U.S.
war reports have so far failed to materialize.
Defense Secretary Robert Gates reported these conclusions in an Aug. 16 letter to Sen. Carl
Levin, chairman of the Senate Armed Services Committee, who had requested a Pentagon
assessment.
WikiLeaks, a self-described whistle-blower website, is believed to be preparing to release an
even larger set of classified Pentagon documents on the Iraq war as early as Sunday.
U.S. officials warned of dire consequences in the days following the July leak. In his letter to
Levin, Gates struck a more measured tone in describing the impact.
"Our initial review indicates most of the information contained in these documents relates to
tactical military operations," Gates wrote, suggesting the materials did not include the most
sensitive kinds of information.
"The initial assessment in no way discounts the risk to national security; however, the review to
date has not revealed any sensitive intelligence sources and methods compromised by this
disclosure," he added.
A Pentagon spokesman, Marine Col. David Lapan, said Friday that the assessment of the July
documents is still valid, even after a more thorough review. A special task force led by the
Defense Intelligence Agency combed the posted reports for weeks to determine what might have
been compromised.
Names of intelligence sources generally are classified at a higher level than the secret-level
documents published by WikiLeaks. The documents provided a ground-level view ofthe war,
from 2004 through 2009, based largely on narrow intelligence reports and other battlefield
materials.
Gates noted that the documents contained the names of "cooperative Afghan nationals." These
were not secret intelligence sources but Afghans who had decided to cut their ties to the Taliban.
The Taliban later vowed to punish these individuals, if the reports proved true.
"We assess this risk as likely to cause significant harm or damage to the national security
interests of the United States and are examining mitigation options," Gates wrote. "We are

http://marinecorpstimes.com/news/2010/10/ap-limited-damage-from-leak-of-afghan-war-l...

7/30/2012

Gates: Limited damage from ^^ '" iLeaks - Marine Corps News | News f- m Afghanistan ...

Page 2 of 3
23110

working closely with our allies to determine what risks our mission partners may face as a result
of the disclosure."
So far, the Pentagon has not reported any incidents of reprisals against Afghans named in the
leaked documents.
Gates told a news conference on July 29, just a few days after the documents were posted by
WikiLeaks, that he had enlisted the help of the FBI to investigate a leak with "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."
At the same news conference, Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, said the
WikiLeaks operators could face blame for any deadly consequences.
"The truth is, they might already have on their hands the blood of some young soldier or that of
an Afghan family," Mullen said.
More recently, U.S. intelligence officials have said the July disclosures sharpened a debate over
how far to go in sharing sensitive information within the government, a practice that expanded
after Sept. 11, 2001, in order to help prevent future terrorist attacks.
In a speech Oct. 6 to the Bipartisan Policy Center, the director of national intelUgence, James
Clapper, called the July leaks "a big yellow flag" for those concerned about protecting classified
information.
" I think it's going to have a very chilling effect on the need to share," Clapper said.
Military investigators say Army Pfc. Bradley Manning, who served as an intelligence specialist in
Baghdad, is a person of interest in the investigation into who provided the Afghan war logs to
WikiLeaks.
Videos You May Be Interested I n
T O P V I D E O P I C K S by Taboola

Decorated war
veteran celebr...
{2m38s)
Sailor has
Olympic Gold
(0m39s)

Marine dad
surprises daug.
(1m44s)

Iiisurc.com Official Site
$250k of Term Life Insurance
for Under $1/Day. Free &
Secure Quotes.
Life.Insure.com

See New Mortgage
Programs
Mortgages Plunge to 2.5%
(2.9% APR) FHA Cuts Refi
^ 5 ™ ^ " ! . ^ ^ . ^ ' " ' . A d C h o i c e s D>

Leave a Comment

http://marinecorpstimes.com/news/2010/10/ap-limited-damage-from-leak-of-afghan-war-l...

7/30/2012

ATTACHMENT 1)

23112

CA^i l ^ \ u ».i;cHi!',AN cK-i'iiVA^j
J O I " ; VcUAir; AniZOl.'A
tAMtS M tMIOrC, OMAt'OMA
j r F F SF^niCN!/ A LAO AW".
' ; A X Q S (,H.\Vt':l<5 n f t ; ; " . i A
l - N C i t - C.M/.l'A'.l $iji'.'M fAMCLlNA
J D H N T M u r j . LOUTH D/.k m A

jQ^it u I. L'EBcnvAN, CON Mir
JACK (II tW, nilOUL ISlANn
OAfJItl k AKAKA. HAWAII
O^L f J l l S O * ! FlOmUA
I u w ' V N ML:)0%

EVA\ I'.WH INDIANA
.••VV.HJU.V.RGiMA
CI A i m McCASKiri. MfSitOURI
MAHK l-'UAU, COlUftADO
KAY M HAGAN. NOHTH CAROtiN-'t
Vat'K f f f i l C H ALASKA
R'JIA'.OW CUP.niS.'U''.0i5
JETF lll!-i",AMAN, N I W VCMLO
EOWANOe KAUFMAN. PELAWAfM
C a n i t f ( i n o D W N w t s i vintvM."

nccFR f wicKtR. Mir.:;is;"iM 1
C;FORGE S. UMIEUX. f mmiiA
i c o n F ijHiAVN. MAl.^iACHUSEnS
fllCH.'.HD BtlflH, NORTH LA'fUUNA
HAViD Vif ' I H , I Ow'5lA\A
M S A ' J V C O l l '.S
\l

Hiiitcd States Senate
COMMITTEE ON ARMED SERVICES
WASHINGTON, DC 20510-6050

fi CM.-.f^i-i» ri'jOBES I'^iAf F i; f'Lt:l(/'<
.'OViEPHW fXr.VMl REP'JIil ICAN s r A i » H " , i c i o n

July 28, 2010
The Honorable Robert Gates
Secretary ofDefense
The Pentagon
Washington, D.C.
Dear Secretary Gates:
Last Sunday, thousands of classified military documents were published on
the internet by an organization called WikiLeaks. Since classified information is,
by definition, material that reasonably could be expected to cause damage to the
national security if made publicly available, I am concerned about the nature and
extent ofthe damage caused by the release of these documents and the steps that
the Department ofDefense is taking to address the problem.
Accordingly, I would appreciate your prompt response to the following
questions:
I.

What is the Department's assessment of the extent to which the documents
disclosed on Sunday contain information that was not previously available in
the public domain? In the Department's judgment, what are the most
significant new disclosures resulting from the release of these documents?

2. What is the Department's assessment ofthe extent to which sources and
methods were divulged as a result of the release of these documents?
3. Has the Department conducted a damage assessment to determine the extent
to which individuals may have been put at risk, the enemy may have learned
about our tactics and techniques, our allies may be less cooperative in the
future, or we may have suffered other specific damage as a result of the
release of these documents? If so, what are the conclusions of that
assessment?

23113

4. What steps is the Department taking to identify the individual or individuals
who released these documents and to prevent future leaks ofthis kind?
Thank you for your assistance in this matter.
Sincerely,
incerely,

Carl Levin
Chairman

A

23114

\5lo
SECRETARY OP DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON. DC 203OMO0O

iUB 16 m
The Honorable Carl Levin
Chairman
Committee on Armed Services
United States Senate
Washington, DC 20510
Dear Mr. Chairman:
Thank youforyour July 2S, 2010, letter regarding the unauthorized disclosure and
publication of classified military docuroeats by the WikiLeaks organization. I ahare your
concerns about the potential compromise of classified information and its effect on the
safety of our troops, allies, and Afghan partners.
After consulting with the Director ofthe Federal Bureau of Investigation, I have
directed a thorough investigation to determine the scope of any unauthorized release of
classified inforajation and identify the person or persons responsible. I have also
established an interagency Information Review Task Force, led by the Deffeme
Intelligence Agency, to assess the content of any compromised information and the
impacts of such a compromise. Our initial review indicates most ofthe infonuation
contained in these docimients relates to tactical military operations. The initial
assessment in no way discounts the risk to national security; however, the review to date
has not revealed any sensitive intelligence sources and methods compromised by this
disclosure.
The documents do contain the names of cooperative Afghan nationals and the
Department takes vciy seriously the Taliban threats recently discussed in the press. We
* ossess thisriskas likely to cause significant harm or damage to the national security
interests ofthe United States and are examining mitigation options. We are working
closely with our allies to determine what risks our mission partners mayfeceas a result
ofthe disclosure. There is a possibility that additional military documents may be
published by WikiLeaks and the Department is developing courses of action to address
this possibility.
The scope ofthe assessment and nature ofthe Investigative process require a great
deal of time and effort. 1 am committed to investigating this matter and determining
31

o

.d SI SnVO;

saoiAkSi;^iVNSs
QHMltdT-i

23115

appropriate action to reduce the risk of any such compromises in the future. We will
keep you informed as additional information becomes available.
Sincerely,

, Q t e «

6
cc:
The Honorable John McCain
Ranking Member

Page 1 of 3

Pentagon preps for WikiLeaks ' ^^ase of secret Iraq reports | Story | PO^^^ERWALL

23116

Htiimajl

Mtiie

Binj

TODAY

Nigntiy N«v.'5

Meet t.hn Preaa

Dateline

Countdown

Maddow

Hi.fitaa

m?fibctv

Ndivsvntie

Ev*ifyBlock

Search Powerwall

are you fast?
£.;.»:..X i i a - i i * - „- ' > i j i ^ ...'.vi* • .1 f-i. X . ' A . t

QWlndowr
Phone

'

^

- ggy^r

'Ll^t_l

!(i7EHH!jtflS3E£l2EI^HI
g2Zn3nMMN#nZ2CZ32ZMm
POWERWALL

PENTAGON PREPS FOR WIKILEAKS
RELEASE OF SECRET IRAQ REPORTS
FLOTUS FASH
M S N B C Politics. Friday, October 15, 2010, 7:11am (PDT)

By NBC. msnbc com and news seivices
WASHINGTON - The Pentagon is reviewing its war database to prepare for potential fallout from
WikiLeak's expected release of secret documents related to the Iraq war, according to NBC News,
The release could come as early as Sunday evening.
Fort Belvolr: Mom Makes
$72/Hour Online

"The problem is we have no idea what WikiLeaks has or is going to release so we're preparing for
ttie worst," one senior Pentagon official told NBC News on Friday.

Wo InvosUgaWri How She MakHs
j.ii.OtB.'Mcnth r o i i V V n , n

"We Buy Ugly Houses"
VVf) Buy Houses In Any Condition
No Aflenls, Clcismj F^fis nr Fix upl

WikiLeaks, the controversial online organization set up to reveal government secrets, has indicated
it would release as many as 400.000 classified logs from Iraq, In July. VWkiLeaks released at least
75,000 classified LLS. military documents on the Afghan war, including the names of informants
and other strategic reports in Afghanistan.
U S. officials have warned that public revelations about intelligence information can have
unpredictable consequences, potentially undennlning efforts to monitor and disrupt militants
plotting attacks.
Pentagon officials told NBC News they were.scouring over 400,000 documents from Iraq they
suspect could be what WikiLeaks plans to release next
Pentagon and military officials say there have been no conversations between WikiLeaks and the
Pentagon about redacting highly sensitive or life-threatening information from any classified
documents that may be released.

E-Cigarettes Exposed
The E-CiQaretw a a ; e is s\?eeping
the coiintfy. fs it really Hial good?

MUST READS ON POWERWALL
MOST VIEWED

MOST SHARED

ROYAL SEX LIVES
From secret palace rendezvous 1
public humiliation. 'Daily Beast'
rounds up the Royal sex lives!
READ STORY«

Eariler this year, Pfc, Bradley Manning, an Army intelligence analyst, was charged with providing a
classified video to the whistle-blower website.
Manning, 22. is charged with leaking video of a 2007 U S Apache helicopter attack in Baghdad
that killed a Reuters news photographer and his driver. WikiLeaks posted the video on its website

Military investigators say Manning also is a person of interest in the July leak of the Afghanistan
documents.

COURAGE..

The Pentagon has concluded that no U.S. intelligence sources or practices were compromised by
the posting of secret Afghan war logs by WikiLeaks, but tlie military thinks the leaks could still
cause significant damage to U S. security interests. The assessment, outlined in a letter obtained
Friday by The Associated Press, suggests ttiat some of the Obarna administration's worst fears
about the July disclosure have so far failed lo materialize. Defense Secrelaiy Robert Gates
reported these conclusions in an Aug. 16 leUer to Sen, Carl Levin, chairman of the Senate Anned
Services Committee, who had requested a Pentagon assessment.
U S. officials warned of dire consequences in the days following the July leak. In his letter to Levin,
Gates struck a mora measured tone in describing the impact. "Our initial review indicates most of
the infomiation contained in these documents relates to tactical military operations," Gales wrote,
suggesting the materials did not include the most sensitive kinds of information, "The initial
assessment in no way discounts the risk to national security; however, the review to date has not
revealed any sensitive intelligence sources and methods compromised by this disclosure," he
added, A Pentagon spokesman. Marine Col. David Lapan. said Friday that the assessment of the
July documents is still valid, even after a more thorough review, A special task force led by the
Defense Intelligence Agency combed the posted reports for weeks to determine what might have
been compromised. Names of intelligence sources generally are classified at a higher level than
the secret-level documents published by WkiLeaks. The documents provided a ground-level view
of ttie war. from 200-1 through 2009, based largely on narrow intelligence reports and other
battlefield materials. Gales noted that the documents contained the names of "cooperative Afghan
nationals," These were not secret intelligence sources but Afghans who had decided to cut their
ties to the Taliban, The Taliban later vowed lo punish these individuals, if the reports proved taie.
"We assess this nsk as likely to cause significant harm or damage to the national security interests
of the United Stales and are examining mitigation options," Gates wrote. "We are working closely
with our allies to determine what risks our mission partners may face as a result of the disclosure,"

FLOTUS FASHION
The first lady shows the rest of u
how to dress to the nines for any
occasion.
VIEW GALLERY.)

FASHIONABLE KATE
Kate Middleton, the Duchess of
Cambridge, shows the rest of us
how to dress like a modern-day
princess,
V I E W G A L L E R Y i>

IS KATE PREGNANT?
Images of a fuller figured Kate
Middleton suiface, sparking
pregnancy rumors!
r^EAD STORY »

ROYAL SPORTS
Kate. William and Harry have a
spoils-filled day together for chai
READ STORY »

15 PRICIEST YACHTS

http://powerwall.msnbc.msn.com/politics/pentagon-preps-for-wikileaks-release-of-secret-ir... 7/30/2012

Pentagon preps for WikiLeakr

Page 2 of 3

'ease of secret Iraq reports | Story | PO" '^RWALL

lioie Scy^j, the Pentagon has not reported a % a * i d e f ] | g ^ i W ^ W N ' M t A ^ a h N W y ' ' ' W U t U l m
leaked documents. More recently. U S. intelligence officials have said the July disclosures
•rm~
KziiiXg^gggjgg
sharpened a debate over how far to go in sharing sensitive information within the government, a s e a r c / i g ; — ' ~ '
practice that expanded alter Sept. 11. 2001, in order lo help prevent future terrorist attacks. In a
speech Oct 6 to the Bipartisan Policy Center, the director of national intelligence, James Clapper,
called the July leaks "a big yellow flag" for those concerned about protecting classified information
"I think it's going to have a very chilling effect on the need to share," Clapper said

23117

ttfii^Afw^'RW* Mwrn™ 9'^«^''
o( ^vealth than an enormous,
gleaming, luxurious yacht W e ta
a look at the world's largest
VIEW GALLERY.

SALLY'S CHOI'

MORE POWERWALL
INSULT TOUR-

THE WEEK
VP TIMING..

Mitt Romney backs Israel's right lo attack ,,

'

Week in Photos for August 3. 2012

Holmes charged wilti murder in Colo, shooting

10 things you need to know today: July 30, ,



Robaten Rumor Rundovi/n: Moving Trucks, Tryst

Pentagon, firm battle over tanks 'we simply ...

10 things you need to know today: July 29.



'The Lost Boys' VV'here Are They Now?

UN: 200,000 Syrians Ree fierce figtiOng in ..

10 things you need to know today: July 28,



Hope Solo Slams Soccer Player Brand I,.,

Roma's leaning Colosseum has experts

Jeff Bezos' S2 5 million gay-marriage ,,



Kristen Stewart Cheats on Robert Pattinson ,.,

Can US men make history in gymnastics final?

NO EASE OVERSEAS

BUBBLE POPPED?

FEMALE PIONEERS

ROYAL DEBUTj

SPEAKING UP

THE KATE EFFECTi

LIKING MITT? ROYAL SPORTS

BIDEN RESCUITARP INSIDER

TOUGH ROAD AHEAD?

http://powerwalLmsnbc.msn.corn/poIitics/pentagon-preps-fbr-wikileaks-release-of-secret-ir...

SKIPPIN

7/30/2012

ATTACHMENT

Gates on Leaks, Wiki and Ot^

vise - NYTimes.com

Page 1 of 1
23119

EtlfyfWiJoikSlmM

The Caucus
The Politics and Government Blag of The Times

NOVEMBER 30, 2010, 7:30 PM

Gates on Leaks, W i k i and Otherwise
By ELISABETH BUMILLER

Defense Secretary Robert M. Gates has regularly denounced Wildlealfor its extensive disclosures, and as a former director of central intelligence he places high
value on secrets.
But at a Pentagon briefing on Tuesday, Mr. Gates, who plans to retire next year,
responded to a question about Wikileaks' disclosure of 250,000 diplomatic cables by
meandering down a different path.
Here is some of what he said:
"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.'
"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 those descriptions are fairly
significantly 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."

Copyright 2012 The New York Times Company | Privacy Policy | NYTimes.com 620 Eighth Avenue New York, NY 10018

http://thecaucus.blogs.nytimes.eom/2010/l l/30/gates-on-leaks-wiki-and-otherwise/?pagew... 7/30/2012

23120

ATTACHMENT

Glinton: WikiLeaks won't hurt"' S. diplomacy - USATODAY.com

Cars Auto Financing

Event Tickets Jobs Real Estate Online Degrees Business Opportunities

Search

Page 1 of 3
23121

Shopping

How do I find it?

Subscribe to paper

ELECTS CANDIDATE MATCH GAME 2

=12

! candidate I

mjSA
TODKf.
News

Money

» World

Sports

Life

Weather

w a r casualties

Clinton: WikiLeaks won't hurt U.S. diplomacy
uptjaied iZM/2010 10:10 AM I Comments

Recommend

E-mail | Print j

Videos you may be interested in

A S T A N A , K a z a k h s t a n (AP) — T h e leak of

thousands of sensitive U.S. embassy cables
will not hurt American diplomacy, Secretary of
State Hillary Rodham Clinton declared
Wednesday at a security summit.

g Enlarge

By Geeri Vafiden Wijiujas'i

Secretary of Stale Hillary Rodham Clinton, center,
reads a document as slie sils next to Germfln
Chancellor Angela Merkel al Ihe slart of the OSCE
Summit al the Palace of Independence In Astana
Kazakhstan on Wednesday.

Clinton said she has discussed the
revelations published on the WikiLeaks
website with her colleagues at the summit in
Astana, the capital of Kazakhstan. The event
Is the first major international meeting of
leaders and top diplomats since the memos
began appearing on the website and in
international publications this week.

McCain defends
Clinton aide

Michelle Obama.
David Beckham
smoke goalie

Are Annuities
"Safe"?
Ser^iorAnnultv A l e r t

by T a b o o
More videos

myYahoo

CANDIDATE MATCH GAME 2

IGoogle

The secret memos published by WikiLeaks
lyo^e
contain frank details on several leaders
attending the Organization for Security and Cooperation In
Europe meeting. One note allegedly written by a U.S. diplomat in
Kazakhstan details scenes of hard-drinking hedonism by several senior Kazakh ministers. The same report
describes Kazakh President Nursultan Nazarbayev as horse-obsessed and given lo taking refuge from the oftenfrigid capital at a holiday home in the United Arab Emirates.

Find out which 2012
candidate is your best matcli

Other prospective conference delegates described less than flatteringly in the leaked cables include Italian Prime
Minister Silvio Beriusconi and Russian President Dmitry Medvedev.

PLAY NOW!

"I have certainly raised the issue of the 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 worlt with and discuss matters of
importance to us both going fonward."
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 also said "this will have no bearing on our strategic relationship."
The Obama administration has harshly criticized the leaking of the 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 any time with our counterparts around the world," Clinton added.

Most Popular E-mail Newsletter
Sign up to get:
To;: viewM SJCiies, phcio
gareriss and com'Tiunity
posw of
day

MOST
POPULAR

Siijii u|j lur USA rODAY Email iiewslellefs

On the sidelines of the summit, Clinton and her Belanjssian counterpart, Sergei Martynov, announced that the
former Soviet republic of Belanjs will give up its stockpile of material used to make nuclear weapons by 2012.
That's a significant step forward in efforts aimed at reducting the risk of nuclear materials falling into the hands of
terrorists, and follows similar commitments made by other former Soviet republics, including Kazakhstan.
Washington will provide technical and financial help to enable Belams to dispose of its highly enriched uranium
stocks.
Clinton said the Obama administration is encouraged that Iran has agreed to return to Geneva for a new round of
international talks on its disputed nuclear program. However, a uranium-exchange agreement that was announced
following talks with Iran in October 2009 — but which later unraveled — would have to be modified to take into
account the fact that Iran has since produced more enriched uranium, she said.
The OSCE was born In the 1970s to nurture rapprochement between Cold War enemies. But the organization has
in recent years stnjggled to define a clear purpose — an anxiety reflected in the speeches of many leaders at the
Astana summit. Failure to achieve any breakthrough in Europe's various territorial stalemates, from Moldova's
separatist Trans-Dniester region to the perennial tension between Armenia and Azerbaijan over the contested
Nagorno-Karabakh region, has served as an embarrassing reminder of the OSCE's weakness to effect significant
change.
In a thinly veiled broadside at Russia, Clinton chided efforts to obstruct the placement of an OSCE mission in
Georgia, whose own territorial integrity has been undermined by Moscow's diplomatic and financial support for the
breakaway regions of Abkhazia and South Ossetia.
"It is regrettable that a participating state has proposed to host a mission, and the OSCE has not been allowed to
respond," Clinton said.

http://www.usatoday.com/news/world/2010-12-01 -clinton-wikileaks_N.htm

7/30/2012

Clinton: WikiLeaks won't hur+*' S. diplomacy - USATODAY.com

Page 2 of 3
23122

Russia fought a brief but intense war with Georgia over South Ossetia in 2008.
Copyright 2010 The Associated Press. AH rights resened. This material may not be published, broadcast, rewritten
or redistributed.

You might also be interested in:
Talking Tech with musician James Taylor

(USATODAY.com in Tech)

'Desperate Housewives," 'Selena' actress Lupe Ontiveros dies tuSATODAV.com in UfeLine Live)
Tweet show: Stewart-Pattinson scandal in 140 characters (USATODAY.com in Lite)
DA: Mass. dad shoots 2 kids, 1 fatally, kills self (USATODAY.com in Wews;
Seleclwd t'oi you by a sponsor

The Most-Spoiled Children in the U.S. Live in... (Women&co.)

Mixx I

Posted 12/1/2010 9:55 AM
E-mail | Print |

Updated 12/1/2010 10:10 AM

m%m

To repoit corrections and dahffcations. contact Standards Editor Brent Jones. For publication consideration in the
newspaper, send comments to tetters@usatoday.CQm Indudo name, phone number, city and state for verification.
To view our corrections, go to corrections, usatoday com.

Guidelines: You share in the USA TODAY community, so please keep your comments smart and civil. Don't
attack other readers personally, and keep your language decent. Use the "Report Abuse" button to make a
difference. Read more.
You must be logged in to leave a comment. Log in | Register

Submit

D

Post this comment to Facebook?

C o m m e n t s : (40) Showing:

Newest first

New: Most recommended!

Domalnhive? (3 friends, send message) wrote: 12/2/2010 5:45 18 PM
I
L

WON'T HURT US Diplomacy??? REALLY?.
' MAY BE, But I am sure Israeli-Kazakh mining tycoon Alexander Machkevich, worth $3.3 billion want
i to kick the US Diplomat's @ss for back stubbing him after 4 dinner Invitations: (read on..)
In a somewhat catty missive, the U.S. diplomat reveals he was unimpressed with Machkevlch's
parties:
"It is not clear what Mashkevich is spending his billions on, but it is certainly not culinary talent. On all
four occasions the Ambassador has eaten at one of his houses, the menu has been similar and
focused on beshparmak (boiled meat and noodles) and plov. The wait staff appeared to be graduates
of a Soviet cafeteria training academy. The wine, at least, was somewhat upscale with reasonably
good French vintage bottles uncorked for the guests. The Astana residence has wooden plaques on
the doors that would fit In nicely in a Wyoming hunting lodge but are somewhat out of touch with the
upscale 'Euro-remont' that is so popular among the Kazakhstan! elite." (I got this passage of the leak
from the Forbes.com website, just In case you are wondering)
SO think this guy will invite another US diplomat to his Parties or even have TRUST in the US
Diplomacy?
Recommend

| Report Abuse

Orlandojon (133 friends, send message) wrote: 12/2/2010 2:25:03 PM
There is no US diplomacy. The leaks demonstrate our entire program is based on back door
discussions with thugs along with bribes thrown in at every turn. We go around the world with suit
cases of money buying up whatever we need.
Recommend

1 | Report Abuse

melee401 (127 friends, send message) wrote: 12/2/2010 2 00 ,57 PM
User Image
Greed Sin (0 friends, send message) wrote: Id ago
Last time, a low level soldier at DoD leaked. This time, I think, a high level DoD official leaked.

))))))»))))))))))))))))))»)))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))»)))))))))»))))))))))))))»)))))))))
I agree. What is more Hillary is trying to steer public opinion with her out to lunch remariThose emails and memos appeared to have been written by an-ogant. self bloating, thoughtless

http://www.usatoday.com/news/world/2010-12-01 -clinton-wikileaks_N.htm

7/30/2012

ATTACHMENT

23123

Clinton: WikiLeaks cables sh

Page 1 of2

diplomacy at work - CNN

23124

MM Politic
Homo

Video

U.S.

World

Justice

Entertainment

Tech

Health

Opinion I iReport

Money i

Ads by Google

FOREIGN POLICY

Basement Waterproofing
Waterproofing, Foundation Repair & Mold
Removal Services. Call Us Now!

Clinton: WikiLeaks cables show diplomacy
at work

ThompsonsWaterproofing.com
December 04, 2010 | By the CNN Wire Staff

S u p p o r t President Obama
Show Your Support for Pres. Obama's
Agenda. Add Your Name Here!
DSCC.org/Support-Obanfia

88 people recommend t
first of your friends.
The confidential U.S. embassy cables posted online
by the website WikiLeaks simply show "diplomats
doing the work of diplomacy," U.S. Secretary of State
Hillary Clinton said Saturday.
Clinton said she w a s not making light of the leaked
documents, which reveal secret communications
from U.S. diplomats around the world and have
caused embarrassment for the United States a n d

Related Articles »
Clinton reassures leaders amid WikiLeaks
disclosure
December 1, 2010
Clinton condemns leak as 'attack on
international community'
November 29, 2010
WikiLeaks again reports electronic disruption
November 30, 2010

others.
"Everybody is concerned," she told reporters aboard
her plane as it departed Bahrain, w h e r e she spoke at
a conference. "Everybody has a right to have us talk to t h e m , a n d have any questions that they have
answered, but at the e n d of the day - as a couple of analysts and writers are n o w writing - what y o u
see are diplomats doing the work of diplomacy."
Advertisement

Ads by Google
IVlItt R o m n e y a n d B a i n
Turning a r o u n d failing b u s i n e s s e s G e t the
facts about Obama's attacks
w w w MittRomney.com

Find More Stories About »
Foreign Policy
Wikileaks
Diplomats
Diplomacy

Lilly Led better o n Obama:
"He has two daughters, and he wants
things better for tnem." See why.
www.barackobama.com/our-vote

WHATWOULD HAPPEN IF ^
EVERYONE CARED? 0

Advertisement

T h e secretary m a d e the c o m m e n t s off-camera but on the record.
Clinton said she has been working hard to re-establish trust and relationships that may have been
harmed by the leaks. Many countries h a d questions that she had to answer, a n d she has had to
reassure t h e m , but she said many also realize U.S. outreach and diplomacy will continue.
"But I haven't seen everybody in the world, and apparently there's 252,000 of these things out there in
cyberspace somewhere," she said of the documents, "so I think I'll have some outreach to continue
doing over the next w e e k s just to make sure as things b e c o m e public, if they raise concerns, I will be
prepared to reach out a n d talk to my counterparts or heads of state of government."
A s k e d whether President O b a m a has had to call any heads of state, Clinton said she wasn't sure,
though he had m a d e recommendations for calls a n d would raise the issue as he speaks to
counterparts on other matters.
"In a way, it should be reassuring, despite the occasional tidbit that is pulled out and unfortunately
blown up," Clinton said. " T h e work of diplomacy is on display, a n d you know, it w a s not our intention for
it to be released this w a y - usually it takes years before such matters are. But I think there's a lot to be
said about what it shows about the foreign policy of the United States."
Ads by Google
Mitt Romney For President
Help tVlitt Win The 2012 Election. Join Our Support Campaign Today
MittRomneyln2012.com
FloodMaster L e a k P e t e c t i o n

http://articles.cnn.com/2010-12-04/politics/wikileaks.clinton_l_wikileaks-diplomacy-state... 7/30/2012

Clinton: WikiLeaks cables shr

IMPACTIWQRLDI

tpi

MS Store Grand O p e n i n g
Play Kinect with John Wall Aug. 9 at the Arlington MS Store Opening!
wv/w. MicrosoftStore.com/Arlington

From around the web

Repeal health care law? Forget about it CNN Opinion
What Kim's 'mystery woman" says about North Korea
CNN International
Is Sebastian Thrun's Udacity the future of higher
education? CNN Opinion

i

23125

Protect your valuables from water damage with our auto shutoff system
www,floodmaster.com

We recommend

*

Page 2 of2

diplomacy at work - CNN

Rep. Jesse Jackson being treated at Mayo Clinic for
depression CNN.com
Ugandan officials, international experts tackle Ebola
outbreak that's left 14 dead CNN International

10 Richest Universities In the US The St reel
Why Aug 1 Could Crush Your Retirement Money
Morning
911 Calls Gone Tragically Wrong Reader's Digest
Tour Kirs tie Alley's Maine Home for Sale HG7V
FrontDoor
We Can't Help But Stare... Sofia Vergara Pictures
SfyfoBistro
"Last Meals" End in Texas Prisons The Daily Meal

Aurora heroes; Three who gave their lives CNN.com

[what's ttiisj

You don't
have to wait
forthe world
to change
TAKE ACTION

( J M ©2012 Cable Newi NRtv.'ork. Turner BioacJcastina System. Inc. All Rights Reieiv^d

Adverlismg Practices | Articles CNN.com | Index by Keyword | Index by Date | Terms of Ser\'ice | Privacy Guidelines

http://articles.cnn.com/2010-12-04/politics/wikileaks.clinton_l_wikileaks-diplomacy-state...

7/30/2012

ATTACHMENT

Biden on START, WikiLeaks

^snbc - Andrea Mitchell Reports - NB'^News.com

Page 1 of 4
23127

Recommend
I Jump to video

X

I Biden lo GOP: 'Let's do the nation's

^

l!$Wd>H"r\n Q T A T ? T W i V i T p a V ^
b&Aiis -^RAiif^d^-^^-^ ?

' '

^iViJ^caJXO

The vice president offered his insight on top political issues

l>y
lAndrea Mitchell
Host, Andrea Mitchell Reports
MSNBC
TRANSCRIPT

Vice President Joe Biden sat down with NBC News Chief Foreign Affairs Correspondent Andrea Mitchell to discuss the current state ofthe war in
Afghanistan, debates over the START Treaty, the tax compromise and Wikileaks. Vice President Biden also offered his heartfelt thoughts on the
loss of Richard Holbrooke.
Read the excerpts below:
Biden on the START Treaty and Tax Compromise
VICE PRESIDENT JOE BIDEN: Well, I say let's do the nation's business. Sixty-seven senators voted to move forward on this, including John
McCain and Lindsey Graham and the leading voices in the Republican Party.
NBC's ANDREA MITCHELL: But they say they haven't had enough time to study it.
BIDEN: Well, they haven't said that MITCHELL: No, I BIDEN: They haven't said that.
MITCHELL: — you lBIDEN: Senator Kyi is opposed to the treaty. He is flat opposed to the treaty. So is Senator DeMint opposed to the treaty. Do not let - do not
stand in the way of the nation's best interests. 1 ,et the Senate vote. Ovenvhelming, the American people support the START Treaty.
Overwhelmingly, the United States Senate suppoi-ts the STy\RT Treaty. It's clearly in our national interests. Every former national security adviser,
secretary of Defense, the secretary of State on the Republican Party from George Shultz to Colin Powell thinks it's essential we pass this treaty. Get
ont of the way. There's too much at stake for America's national security. And don't tell me about Christmas. I understand Christmas. I have been
a senator for a long time. I've been there many years where we go right up to Christmas.
There's lO days between now and Christmas. I hope I don't get in the way of your Christmas shopping, but this is the nation's business. This is the
national security that's at stake. Act. Act.
MITCHELL: Does that go for the tax cut, as well'?
BIDEN: — that we just acted on.
MITCHELL: But you had a rough session with House Democrats.
BIDEN: Sure, I did.
MITCHELL: They say you sold them out, you sat down witli Mitch McConnell and you went in the back room and you cut a deal with the
Republicans.
BIDEN: Hey, look, it's true I did — It's true I did negotiate this package. 1 was in an interview
with another network, I will not mention, not long ago. And they said the Senate said you sold them out and it will never pass. I said more than 80
will vote for it. Eighty senators just voted for that deal 1 allegedly sold them out on.
MITCHELL; l.::ight)'-one.
BIDEN: Eighty.
MITCHELL: Eighty-one.

http://www.msnbc.msn.eom/id/40702904/ns/msnbc_tv-andrea_mitchell_reports/t/biden-sta...

7/30/2012

Biden on START, WikiLeakf

isnbc - Andrea Mitchell Reports - NB'^News.com

Page 2 of 4
23128

BIDEN: Well, more than 8o. Yes, 80 — 81. The House will, as well. Wok, people feel ver)'strongly and I don't blame them. But we cannot afford
to go into next year with everyone's
taxes going up, the economy threatening to go into a double dip, not growing the economy.
So I had two dictates from the president. Joe, one, make sure whatever you negotiate grows the economy next year. Every major econometric
model points out the deal that I was asked to negotiate will increase the growth of the economy from 2.3 to 2.5 to 3.7 to 4. That means tens of
thousands, millions of additional jobs.
Secondly, he said to me, Joe, make sure our folks aren't hurt, meaning middle class and working class people. Guess what?
Every one of the tax breaks they had, from college tuition to child care tax credit, which the Republicans opposed, is part of that deal. Every single
tax break for middle class Americans has been preserved.
BIDEN: Thirdly, it's for two years. We also have a payroll tax where eveiy person next year will get 2 percent less taken out of their payroll. That's
real money. That means well over $1,000 for the average person out there, additional.
MITCHELL: But the House Democrats, the liberals, they are the people that brought you into power.
BIDEN: Sure they are.
MITCHELL; What are you now saying to them?
BIDEN: Well, I'll tell you, I went in and spoke to them two-and-a-half hours. I'm a creature of the Congress. Wlien I walked in, I got a standing
ovation. Wlien I walked out, I got an ovation. All this talk about how there is this ovenvhelming contention. Not a single one did
not thank me. Not a single one said to me that they thought that I sold anybody out. Not a single one said to mc that they thought you were going
to be able to decouple the upper income tax from the middle class tax cut.
What their argument was is you should have taken more time, Joe. You should have taken more time. The minority who spoke said that. There
were a number of people who stood up and said, this is important. Thankyou for the deal you negotiated, including progressives and moderates.
MITCHELL; Well, if you were still in the Senate, what about this appropriations bill? All these earmarks and ... Senator McCain was on the floor.
He said, you know, you are asleep, to his colleagues, didn't you get the message of the election, people don't want all this pork.
BIDEN: Look, we arc in a position where, as the president, we don't get to negotiate this. We set out two parameters. We said we wanted to freeze
discretionarj' spending, It is frozen in this omnibus bill.
Two, we said we need additional funding for national security, additional funding for follow-on in Iraq, so to make sure the civilian side gets
ramped up and for dealing with international terrorist organizations. We got both ofthose things. Do we like some of these, quote, earmarks in
there?
No, we don't like them. But the question is, as we go to throw out, you know, the baby with the bath water here?
If, in fact, this omnibus bill negotiated by Republiains and Democrats — not by us —Republicans and Democrats — passes, the president will
support it.
Biden on his relationship with Oljama and witli members of Congress
MITCHELL: And you are the point man on all of this. You're here at the United Nations. You're negotiating with Mitch McConnell. You're
eveiywhere. Are you basically the de facto chief of staff?
BIDEN: Well, look, when the president asked me to join him, he asked what portfolio I wanted. I said I want to be in the room when every
decision is being made. You're president, but I want to have an input.
And so the president uses me where I have some sldll set. I'm going to say something outrageous. They kid mc all the time. I still consider myself a
Senate man. I love the Senate. I love the Congress. I keep in touch with them.
So I had gieat relationships with Republicans as well as Democrats. There's real trust. So it's logical for me, at this point, to be a point man in
dealing with the House and the Senate at this time.
I have a significant background — I mean I'm good or bad, but I have a significant background in foreign policy and national security issues. So it's
logical that I'd come up here. The president asked me, as you know, because you were one of the first people to inter\ iew me when he turned to me
and said, Joe, you do Iraq. And the Secretary of Defense and the Secretary of State have cooperated with me. They've followed it with me.

http://www.msnbc.msn.eom/id/40702904/ns/msnbc_tv-andrea_mitchell_reports/t/biden-sta...

7/30/2012

Biden on START, WikiLeaks

'snbc - Andrea Mitchell Reports - NBCNews.com

Page 3 of 4
23129

I mean, so it was just logical things that I happened to have some experience, in some cases significant experience. And they just happened to be in
the two areas that are being negotiated right now.
On WikiLeaks
BIDEN: I came in, almost all of it was embraces. I mean it wasn't just shaking hands. 1 know — I know these guys. I know these women. They still
trust the United States. There's all kinds of things and —
MITCHELL: So there's no damage?
BIDEN: I don't think there's any damage. I don't think there's any substantive damage, no. Look, some of the cables that are coming out here
and around the world are emban assing, I mean, you know, to say that, you know, for you to do a cable as an ambassador and say I don't like
Biden's tie, he doesn't look good and he's a homely guy, that's not something —
MITCHELL; I never said that.
BIDEN: No, I know you didn't. I know you didn't. But yet, I mean, you know, there's — so there's a lot of things like that. But nothing that I am
aware of that goes to the essence of the relationship that would allow another nation to say they lied to me, we don't trust them, they
really are not dealing fairly with us.
On Iraq
MITCHELL: Iraq — we still have 48,000 troops. Your own son was there. Now another Christmas is coining and they're — they have a
government, but there is so much that has not been accomplished.
BIDEN; Well, there's been — think of today. You know this place better than most. Today, the international community said, Iraq, you're back in
the family of nations. We think yon have a government. We think you are mo\ing in the right direction. We think you're protecting
human rights. And we think you're going lo be stable.
And so we passed through resolutions here in the Security Council — I had the pleasure of presiding over today — which essentially wiped out the
restrictions and the claims against Iraq that were imposed after Saddam Hussein went into Kuwait.
And so this is a reaffirmation that Iraq is back. The international community doesn't think there's so long to go. They know there's more work to be
done. But they think they have turned the comer, they have a democracy and they're moving forward.
Biden on Holbrooke
MITCHELL: And, finally, a terrible, terrible loss for all of us, for the countiy.
BIDEN: Richard Holbrooke.
MITCHELL: Your thoughts on —
BIDEN: I have been —
MITCHELL: - having this Afghanistan BIDEN: - friends MITCHELL: - review without him.
BIDEN — with Richard, I was a 29-year-old senator-elect. He was a young, 31-year-old Foreign Scnice officer in Vietnam. I ran opposed to the
war against Vietnam — the — excuse me, the war in Vietnam. We became friends and acquaintances way back then.
He was one of the fewfiguresin American foreign policy who was literally larger than life. And I thought — I wish Kati could have heard when we
— when I conducted the Security Council meeting. Almost every single member spoke of him before they made their statements about
Iraq. And a number of them spokefiom personal terms and it was his heart — from their hearts.
No one, as my grandfather would say, it's a good thing about .American democracy, is everyone is expendable, in terms of the — thefimctioningof
this great countiy. But I'll tell you what, it's going to be a long, long time before anybody is big enough to fill Richard's shoes in eveiy
way. He was an outsized personality, an outsized talent. And hecontiibuted more to the peace and security of this countiy as much as anyone in the
last 30 years.
MITCHELL: And w e all know there were moments with him. He could be difficult.

http://www.msnbc.msn.eom/id/40702904/ns/msnbc_tv-andrea_mitchell_reports/t/biden-sta...

7/30/2012

Biden on START, WikiLeaks

nsnbc - Andrea Mitchell Reports - NB'^News.com

Page 4 of 4
23130

BIDEN: He sure could. As a matter of I was with Kati and — at the hospital the day
before he died, because I went through a similar kind of event with the aneurisms I had. His was more serious, but they — it was — there was a
touch and go piece for me for about three months. And so she was asking me, what was it like and will he remember this. And we were
talking.
And we started joking. And I said, you know, he can be a real pain in the you know w hat. And she laughed like hell. And I was kidding her. I said,
thank god you were there for the last 17 years to moderate him and then she told me how he would say the same of me.
But we were friends. This was a guy who was — he had a prodigious intellect. He had a sort ofa Kissingerian mind. He saw things globally,
strategically, like few other men and women I've dealt with. And he could be veiy, vciy tough. But he was my friend.
MITCHELL: Do you have a Christmas message, a holiday message?
BIDEN: Yes. As my grand pop would say, keep the faith. Keep the faith. This country is so strong. It is so big. It is so resilient. Nothing at all can
damage its ability to move forward.
A lot of people are hurting. I remember a Christmastime when my dad lost his job and he told us we had to move. It is horrible. But you know
what, you know what, we'll come back. And in the meantime, keep in your prayers all those people who are going through really difficult times
now.
MITCHELL: And our men and women in —
BIDEN: And, l o o k MITCHELL; - combat.
BIDEN: — Jill and to be honest with you, I tried to - I had hoped to spend Christmas in Iraq this year, but it was inappropriate to go while the
government was still being formed. And so our thoughts and prayers are with us. We had, foiThanksgiving, we had a number of the young men
and women who areamputees over for the holidays. We'll spend Christmas at Walter
Reed again.
These are incredible, incredible kids. And to all you - all you moms and dads and sons and daughters wiio have someone in harm's way now, keep
them in your prayers. They'll be home next year.
MITCHELL: Thankyou soveiy much.
BIDEN: Thankyou.
© 2012

wsnhccmn

reading & see what your friends
are viewing
Allow What's mis?

H

m s n b c on Facebook
Like

22,470 people like msnbc.

"zmm^m^Q
Kiilrjtw

CY'i'ii Smitli

WfllKir

FK'i'Ool. lod-il piggir.

http://www.msnbc.msn.eom/id/40702904/ns/msnbc_tv-andrea_mitchell_reports/t/biden-sta...

7/30/2012

23131

ATTACHMENT I

WikiLeaks: No Harm, No Fou' NYTimes.com

Page 1 of 2
23132

EI)ci:^fWl{oti( Bm(*

The Lede
Blogtftng ih.
JANUARY 19, 2011, 7:45 PM

U.S. Officials Reportedly Said WikiLeaks Revelations Were 'Not Damaging'
By

ROBERTMACKEY

According to a Congressional aide who spoke to Reuters, State Department officials
concluded late last year that the publication of leaked United States diplomatic cables
obtained by WikiLeaks "was embarrassing but not damaging."
As the news agency reports, that private assessment, "that a mass leak of diplomatic
cables caused only limited damage to U.S. interests abroad," contrasts sharply with the
Obama administration's public statements on the potential harm ofthe WikiLeaks
disclosures.
P.J. Crowley, a State Department spokesman, reiterated that public stance, telling the
news agency, "From our standpoint, there has been substantial damage." He added: "We
believe that hundreds of people have been put at potential risk because their names have
been compromised in the release of these cables."
The reported reversal by the State Department is strikingly similar to a Pentagon volteface on a prior WikiLeaks release.
/
As my colleague Elisabeth Bumiller reported in October, "Defense Secretary Robert M.
Gates said in a private letter over the summer that while the release of 75,000 classified
documents about the war in Afghanistan by the Web site WikiLeaks endangered the lives
of Afghans helping the United States, the disclosures did not reveal any significant
national intelligence secrets."
In his letter, dated Aug. 16, Mr. Gates assured the chairman of the Senate Armed Services
Committee, Senator Carl Levin, "the review to date has not revealed any sensitive
intelligence sources and methods compromised by this disclosure." At a Pentagon news
conference barely two weeks earlier, Mr. Gates had insisted that the leaks were damaging
because "intelligence sources and methods" detailed in the Afghan war documents
published by WikiLeaks "wall become knovm to our adversaries."
At the same briefing, the chairman of the Joint Chiefs of Staff, Adm. Mike Mullen, went
even further, saying, "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."

http://thelede.blogs.nytimes.com/2011/01/19/u-s-officials-reportedly-said-wikileaks-revela... 7/30/2012

WikiLeaks: No Harm, No Poi^^ NYTimes.com

Page2of2

23133

Oddly,the private cot^ments reportedly made by State Department officials on the leaked
cables match almost e^actlyapublic statement on them made by none other than Mr.
Gates in November:
Mr. Gates, who is alsoaformerC.LA. director, told reporters then:
Let me ^ust offer some perspective as somebody who'sbeen at thisalong
time. Every other government in the world knows the Ut^ited States
government leaks likeasieve, and it has foralong time. Andldragged this up
the other daywhenlwas looking at some of these prospective releases. And
this isac^uote from John Adams:'How canagovernment go on,publishing all
of their negotiations wath foreign nations,Iknownot.Tome, it appears as
dangerous and pernicious as it is t^ovel.'
When we went to real Congressional oversight ofintelligence in the mid-70s,
there wasabroad view that no otherforeign intelligence ser^ace would ever
share infortnationwath us again, if we were going to share it all wath the
Congress. Those fears all proved unfounded.
Now,I've heard the impact of these releases on our foreign policy described as
ameltdown,asagamechanger,and so ot^.lthink those descriptions are
fairly sigt^ificantly overwrought.
The fact is, governments deal with the United States because it'sin their
it^terest, not because they like us, not because theytrust us, and not because
they believe we can keep secrets. Mat^y governments-somegovernmentsdeal with us because they fear us, some because they respect us, most because
they need us.Weare still essentially,as has been said before, the
indispensable t^atiotT.
So other nations will continue to deal with us. Theywillcot^tinue to workwith
us.Wewill continue to share set^sitive information ^vith one another.
fs this embarrassing^Yes.Is it awkward^Yes.Consec^uencesforU.S. foreign
policy^Ithinkfairlymodest.

Copyright 2012 The New York Times Company | Privacy Policy | NYTimes.com 620 Eighth Avenue New York, NY 10018

http://thelede.blogs.nytimes.com/2011/01/19/u-s-officials-reportedly-said-wikileaks-revela... 7/3 0/2012

23134

ESPIONAGE ACT AND THE LEGAL AND
CONSTITUTIONAL ISSUES RAISED BY WIKILEAKS

HEARING
BEFORE T H E

COmilTTEE ON THE JTTDICLW
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION

DECEMBER 16, 2010

Serial No. 111-160
Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: httpV/judiciary.houte.gov

U.S. GOVERNMENT MUNTtNQ OFFICE
WASHINGTON : 2011
For sale by the Superintendent of Documents. U.S. Government Printing Office
Internet: bookstore gpo gov Phone: tollft-ee(866) 512-1800; DC are* (202) 513-1800
Fax; (202J 513-2104 Mail: Stop IDCC, Washington, DC 20402-0001

23135

COMMITTEE ON THE -JUDICIARY
JOHN CONYERS, JR., Michigan, Chairman
HOWARD L BEHMAN, Califotuia
LAMAR SMITH, Texas
RICK BOUCHER, Virginia
F. JAMES SENSENBRENNER, J K . ,
JERROLU MAULER, New York
Wisconsin
ROBERT C. "BOBBY" SCOTT, Virginia
HOWARD COBLE, North Carolina
M E L \ T N L . WATT, North Carolina
ELTON GALLEGLY, CaUfomia
ZOE LOFGREN, California
BOB GOODLATTE, Virginia
SHEILA JACKSON IJEE, Telas
D . \ N I E L E. LUNGREN, California
MAXINE WATERS, California
DARRELL E. ISSA, California
W I L L I A M D. DELAHUNT, MassachuMtU
J. RANDY FORBES. Virginia
STEVE COHEN, Tennessee
STEVE K I N G . Iowa
HENRY C. "HANK" JOHNSON, JR.,
TRENT FR.\NKS, Arizona
Georgia
LOUIE GOHMERT, Texas
J I M JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico
TED POE, Texas
M I K E QUIGLEY, lUinoie
JASON CHAFFETZ. Utah
JUDY CHU, California
TOM ROONEY, Florida
TED DEUTCH, Florida
GREGG HARPER, Mississippi
LUIS v . GUTIERREZ, Illinois
TAMMY B A L D W I N , Wisconsin
CHARLES A GONZALEZ, Texas
.ANTHONY D. WEINER, New York
A D A M B. SCHIFF, California
LINDA T. S.4NCHEZ. California
D A N I E L MAFFEI, New York
JARED POLIS, Colorado
PERRY APELBAUM, Majority Staff Director and Chief Counsel
SEAN MCLAUGHLIN, Uitwrtty Chief uf Staff and General Counsel

ail

23136

CONTENTS
DECEMBER 16, 2010
Page

OPENING STATEMENTS
The Honorable -John Conyers, Jr., a Representative in Congress from the
State of Michigan, and Chairman, Committee on the Judiciary
The Honorable Louie Gohmert, a Representative i n Congress from the State
of Texas, and Member, Committee on the Judiciary
The Honorable William D Delahunt, a Representative i n Congress from
the State of Massachusetts, and Member, Committee on the Judiciary
The Honorable Howard Coble, a Representative i n Congress from the State
of North Carolina, and Member, Committee on the Judiciary
The Honorable Charles A. Gonzalez, a Representative in Congress from the
State of Texas, and Member, Committee on the Judiciary
The Honorable Ted Poe, a Representative in Congress from the State of
Texas, and Member, Committee on the Judiciary

1
3
4
5
5
5

WITNESSES
Mr. Geoffrey R. Stone, Professor and former Dean, University of Chicago
Law School
Oral Testimony
Prepared Statement
Mr. Abbe David Lowell, Partner, McDermott Will & Emery, LLP
Oral Testimony
Prepared Statement
Mr. Kenneth L . Wainstein, Partner, OlMelveny & Myers, LLP
Oral Testimony
Prepared Statement
Mr. Gabriel Schoenfeld, Ph.D., Senior Fellow, Hudson Institute
Oral Testimony
Prepared Statement
Mr. Stephen I . Vladeck, Professor of Law, American University
Oral Testimony
Prepared Statement
Mr. Thomas S. Blanton, Director, National Security Archive, George Washington University
Oral Testimony
Prepared Statement
Mr. Ralph Nader, Legal Advocate and Author
Oral Testimony

(III)

6
9
22
25
39
41
48
50
66
69
74
77
87

23137

ESPIONAGE ACT AND THE LEGAL AND CONSTITUTIONAL ISSUES RAISED BY WIKILEAKS
THURSDAY, DECEMBER 16, 2010
HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE JUDICIARY,

Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in room
2141, Raybum House Office Building, the Honorable John Conyers,
Jr. (Chairman of the Committee) presiding.
Present: Representatives Conyers, Scott, Jackson Lee, Delahunt,
Johnson, Quigley, Gutierrez, Schiff, Sensenbrenner, Coble,
Gallegly, Goodlatte, King, Frank, Gohmert, Poe, and Harper.
Staff Present: (Majority) Perry Apelbaum, Staff Director and
Chief Cotmsel; Elliot Mincberg, Counsel; Sam Sokol, Covmsel; Joe
Graupensberger, Counsel; Nafees Syed, Staff Assistant; (Minority)
Carohne Lynch, Counsel; Kimani Little, Counsel; and Kelsey
Whitlock, Clerk.
Mr. CONYERS. Good morning. The hearing on the Espionage case
and the legal and constitutional issues raised by WikiLeaks before
the Committee on Judiciary is now about to take place. We welcome everyone here to the hearing. In the Texas v. Johnson case
in 1989, the Supreme Court set forth one o f t h e fundamental principles of our democracy. That is, that i f there is a bedrock principle
underlying the First Amendment, i t is that the government may
not prohibit the expression of an idea simply because society finds
the idea itself offensive or disagreeable.
That was Justice William Brennan. Today the Committee will
consider the WikiLeaks matter. The case is complicated, obviously.
It involves possible questions of national security, and no doubt important subjects of international relations, and war and peace. But
fundamentally, the Brennan observation should be instructive.
As an initiaJ matter, there is no doubt that WikiLeaks is in an
unpopular position right now. Many feel their publication was offensive. But unpopularity is not a crime, and publishing offensive
information isn't either. And the repeated calls from Members of
Congress, the government, journalists, and other experts crying out
for criminal prosecutions or other extreme measures cause me
some consternation.
Indeed, when everyone in this town is joined together calling for
someone's head, i t is a pretty sure sign that we might want to slow
down and take a closer look. And that is why i t was so encouraging
(1)

23138

to hear the former Gf^ce of Legal Counsel, Jack Goldsmith, who
servedunderGeorgeW Bush caution us only last week And he
said,Ifindmyselfagreeingwiththose who think Assange isbeing
unduly vilified.Icertainly do not support or like his disclosure of
secrets that harmL^.S. national security or foreign policy interests.
But as a l l t h e h a n d w r i n g i n g o v e r t h e 191^^ Espionage Act shows,
i t is not obvious what law he has violated.
Gur country was foundedonthe belief that speech is sacrosanct,
and that the answer to bad speech is not censorship or prosecution,
but more speech And so whatever one thinks about this controversy, i t is clear that prosecuting WikiLeaks would raise the
most fundamentalquestions about freedomof speech about who is
ajoumalist and about what the public can know about the actions
oftheir own government.
Indeed, while there's agreement that sometimes secrecy is necessary,therealproblemtoday is not too little secrecy, bu^ too
much secrecy. Recall the Pentagon papers case, Justice Potter
Stewart putit,wheneverythingisclassified, nothing is classified.
Rampant overclassification in the I ^ S system means that thousands of soldiers, analysts andintelligenceof^cers need accessto
huge volumes of purportedly classified material. And that necessary access i n turn makes i t impossible to effectively protect
truly vital secrets.
Gneof our panelistshere today put itperfectly in arecent appearance.He explained, our problem with our security system,and
whyBradleyManning can get his hands on allthese cables,is we
got low fences aroundavast prairie because the government classi^es just about everything. What we really need are high fences
aroundasmall graveyard of what is really sensitive.Furthermore,
we are too quick to accept government claims that risk the national
security and far too quick to forget the enormous value of some national security leaks. As to the harm caused by these releases most
will agreewiththe Defense Secretary, Bob Gates,his assessment.
^ow, I have heard the impact of these releases on our foreign
policy described as ameltdown, as agamechanger, and soon. I
thinkthose descriptions arefairly significantly overwrought. And
Mr. Gates continues, is this embarrassing^ ^es. Is i t awkward^
^esConsequences for LIS. policy^Ithink fairly modest
So the harm here, according to our Republican Defense Secr e t a r y , i s f a i r l y modest. Among the other side of theledger,there
is no need to go all the way back to the Pentagon papers to find
examples of national security leaks that were critical to stopping
government abuses and preservingahealthydemocracy.They nappen all the time.
In 2005, The ^ew ^ork Times published critical information
aboutwidespread domestic surveillance. LUtimately, w e l e a m e d o f
agovemmentalcrisis that included threats of mass resignations at
the JusticeDepartmentandoutrageouseffortstocoerceasickattomey general intoapproving illegal spyingover the objections of
h i s d e p u t y a n d l e g a l c o u n s e l ' s o f f i c e . I f n o t f o r t h i s l e a k , we would
have never learned w h a t a c i v i l libertarian John Ashcroft is.
I n 2 0 0 4 , t h e l e a k o f a s e c r e t office of legalcounselinterrogation
memosledtobroader revelations of theCiA'sbrutal enhanced interrogation programs at Black sites. These memos had not been

23139

previouslyrevealedtothe Judiciary Committee or to many inCongress Some feel this harmed national security But to manyAmericans, theharm was a secret program of waterboardingand other
abuses that might never have been ended but for the leak.
Andso we wantto, as theone Committeein the Congress that
I h a v e a g r e a t and high regard for,takeacloser look at the issues
andconsiderwhat,if any,changesinthelawmightbenecessary.
And I w a n t t o welcomethis very distinguished panel. I h a v e r e a d
l a t e i n t o t h e n i g h t , a n d I w a s a w a k e m o s t o f t h e t i m e w h e n I was
reading this, some really great testimony. And I am so glad that
youare all here w i t h u s . I wouldlikenowtorecogni^emy friend
and Ranking Member,Judge Louie Gohmert.
Mr. GoHMERT. Thank you, Chairman. And I do appreciate the
witnesses hereBeforelbegin my actual statement, let me just say
lappreciate, and am also intrigued by your metaphorical use of the
n e e d f o r h i g h f e n c e s a r o u n d a s m a l l graveyard. But l a m c u r i o u s ,
are you saying this Administration is located inasmallgraveyard7
Is that the points
Mr. CoNYEI^^.Seemeafterthehearing,please, Judge Gohmert.
Mr GoHMERT Thank you. Chairman And I appreciate the
Ranking Member Smith asking me to stand in. But the release last
month by WikiLeaks ofover 250,000 classified and diplomatic LI S
documents threatens our national security, our relations with foreign governments, and continued candor from embassy officials and
foreignsources.Manyhave applauded theWeb site and its founder, Julian Assange, as ahero advocating the continued release of
classified and sensitive government documents. But to do so is both
naive and dangerous. Websites such as WikiLeaks andthe news
publications that reprint these materials claim to promote increased government transparency.
But thereal motivation is self-promotion and increased circulation to a large extent. They claim to be in pursuit of uncovering
government wrongdoing but dismiss any criticism that their actionsmaybe wrong or damaging t o t h e country. A s l o n g a s t h e r e
havebeengovemments, therehavebeeninformationprotectedby
those govemments.There have clearly been documents classified
that should not havebeenclassified.Whilethere is legitimate disputeoverthe extentto which informationis protected and classified, i t is simply unrealistic to think that the protectionof information serves no legitimate purpose
Much attention has been givento this most recentWikiLeaks release. Many dismiss that anv negative ret^ercussions resulted from
the leak arguing that the documents, while embarrassing to the
LI S , did no real harm to the country. But what about previous
leaks by this Web site7Gn July 25, 2010,WikiLeaks released confidential military field reports on the war i n Afghanistan.This site
releasedlraq war-relateddocumentsonGctober 2^, 2010. Bothof
these leaks reveal sensitive military information that endanger
military troops and may have bolstered our enemy^s campaigns
against us.
Last month's WikiLeaks release has thrust in the spotlight an
old, some would even say, arcane statute, the Espionage Act of
191^. I t has also resurrected an age-old debate on First Amendment protections afforded to media publications.

23140

UNITED STATES OF AMERICA
V.

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

GOVERNMENT RESPONSE TO
DEFENSE MOTION FOR
JUDICIAL NOTICE AND ADMISSION
OF PUBLIC STATEMENTS
17 August 2012
RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny, in part, the Defense Motion for Judicial Notice and
Admission of Public Statements. The United States does not object to this Court taking judicial
notice that statements were made by some of the individuals listed in the defense motion.

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
1. The United States stipulates to the facts set forth in paragraphs 3 and 4 of the Defense
Motion.
2. The United States does not object to this Court taking judicial notice that statements were
made by the individuals listed below. See Def Mot. at 2-4.
a. Paragraph 2a of the Defense Motion (Statement of Geoff Morrell, Pentagon Press
Secretary)
b. Paragraph 2b of the Defense Motion (Statement of President Barack Obama), provided the
Court takes judicial notice of the entire statement quoted in the article provided by the defense at
Attachment B.
c. Paragraph 2c of the Defense Motion (Statement of Secretary of Defense Robert Gates)
d. Paragraph 2c of the Defense Motion (Statement of Secretary of State Hillary Rodham
Clinton)
e. Paragraph 2c of the Defense Motion (Statement of Vice President Joseph R. Biden)

APPELLATE EXHIBIT " ^ 3 ^
PAGE REFERENCED:
PAGE
OF
PAGET"

23141

3. The United States objects to this Court taking judicial notice that any other "statements" were
made by the individuals listed in the defense motion.

WITNESSES/EVIDENCE
The United States requests this Court consider the referred Charge Sheet in support of its
response.
LEGAL AUTHORITY AND ARGUMENT
The defense requests this Court take judicial notice that the remaining listed statements
were made by the attributed individuals because they are capable of accurate and ready
determination via "a quick web search." See Def Mot. at 4. However, the defense has provided
no reliable evidence to this Court that the remaining "statements" were made by the attributed
individuals as they are quoted in the defense motion.
A judicially noticed fact "must be one not subject to reasonable dispute in that it is either
(1) generally known universally, locally, or in the area pertinent to the event or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned." Military Rule of Evidence (MRE) 201(b). Judicial notice of facts serves as a
substitute for testimonial, documentary, or real evidence. Stephen A. Saltzburg, et al., Military
Rules of Evidence Manual § 201.02[1] (7th ed. 2011). Additionally, judicial notice promotes
judicial economy because it relieves a proponent from formally proving certain facts that a
reasonable person would not dispute. Id.
Because judicial notice of facts is a substitute for proving the fact, courts use judicial
notice cautiously to avoid depriving a party of the opportunity to use rebuttal evidence, crossexamination, and argument to attack contrary evidence. See American Prairie Construction
Company v. Hoich, 560 F.3d 780, 797 (8th Cir. 2009). Judicial notice cannot be used in
contravention of the relevancy, foundation, and hearsay rules. See id. at 797 (noting that each
judicially noticed document included hearsay evidence which is generally only admissible at trial
through an enumerated hearsay exception) (citing Baker v. Barnhart 457 P.3d 882, 890-92 (8th
Cir. 2006)). Where the matter is in controversy, judicial notice is inappropriate and the
traditional rules of evidence should be applied. See Holloway v. Lockhart, 813 F.3d 874, 878-79
(8th Cir. 1987) (deciding that determining whether use of tear gas against inmates was a
reasonable decision could not be judicially noticed and should be evaluated by the testimony and
credibility of various witnesses).
The courts have not defined a rule delineating when the full rules of evidence must be
used in place of judicial notice. Essentially, "[f]acts of universal notoriety need not be proved."
Brown v. Piper, 91 U.S. 37, 42 (1875). For instance, facts deemed unreliable because of age and
hearsay cannot be judicially noticed. See United States v. Hale, 978 F.2d 1016, 1021 (8th Cir.
1992) (declining to takejudicial notice of Senate subcommittee hearing transcripts because the
ten year old transcripts were hearsay and too old to be deemed reliable). Reliance on primary
sources such as treatises and scientific journals that are deemed trustworthy creates an adequate

23142

basis fortakingjudicial notice of an adjudicative facL ^^^.^^^^^,33M.J.at710(holdingthat
an article concerning trial tactics andjudicial theory was not proper forjudicial notice).
Ultimately,the moving party must meet the statutory test and demonstrate that the facts to be
noticed judicially are generally known or universally accepted as accurate.
C^^^^^^,32MJ 508,511 ( A C M R 1990)
GOVERNMENT OBJECTIONS TOJUDICIALNOTICEOFCERTAIN STATEMENTS
The United States objects to this Court takingjudicial notice ofeither ofthe "statements"
made by Marine Corps Colonel David Eapan. Pirst, what the defense has listed in its motion
could hardly be characterized asa"statement." Second, neither AttachmentCnorAttachmentD
to the Defense Motion provide any evidence that Col. Eapan made any statement remotely
approaching what the defense has proffered in its motion.
The United States also objects to this Court takingjudicial notice ofany statement made
by Defense Secretary Robert Gates inal6August20101etter to the Chairman of the Senate
Armed Services Committee.
Def Mot. at 2. Acourt may take judicial noticeof an
adjudicative fact i f i t is capable of"accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned." MRE 201(b)(2). In this case, the defense has not
provided this Court the letter sent by Secretary Gates, but instead has provided an internet news
article reporting on the letter allegedly sent. The article provided bythe defense does not quote
the letter in full.
Additionally,the United States objects to this Court takingjudicial notice ofthe
"statement" made by Secretary Clinton in AttachmentCto the Defense Motion.
Def Mot.
at3. The defense provides this Court an internet news article from CNN.com,which
acknowledges that Secretary Clinton made commentsoff^camera but on the record. The article
quotes various comments made by Secretary Clinton while aboard her plane, but it is difficult to
determine where certain statements begin and end as the article undoubtedly quoted Secretary
Clinton as she spoke extemporaneously with reporters. The CNN.com article can hardly be
characterized asa"source whose accuracy cannot reasonably be questioned." MRE 201(b).
Finally,the United States objects to this Court takingjudicial notice ofthe statement
made by Representative John Conyers, Jr.,atacongressional hearing onl6July 2010. ^^^Def
Mot.at3. The defense has provided no evidence that Representative Conyers made that
statemenL Instead, Attachmentlto the Defense Motion is an article from an internet blogofT^^
^^^^^^^7^^^^.^ that does not even mention Representative Conyers.
THESTATEMENTSARENOT ADMISSIBLE UNDERMRE^01(D)(2)
Hearsay "isastatement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth ofthe matter asserted." MRE 801(c). Unless
authorized as an exception, hearsay is inadmissible. MRE 802. Admissions by party-opponents
are recognized as statements that are not hearsay, i^^^ MRE 801(d)(2). Admissions byapartyopponent includeastatement that is offered againstaparty and is "(A) the party^s own statement
in either the party^sindividualorarepresentativecapacity,or(B)astatement of which the party

23143

has manifested the party's adoption or belief in its truth, or ... (D) a statement by the party's
agent or servant concerning a matter within the scope of the agency or employment, made during
the existence of the relationship
" MRE 801(d)(2).
The defense contends that all the statements are admissible under MRE 801(d)(2)(B) and
801(d)(2)(D) because they were made by an individual who "either serves as a high-level
government bureaucrat, heading a government agency with the ability to bind the government
through policy-making decisions, or, as part ofhis employment, spoken [sic] on behalf of those
who did/do have the ability to bind the sovereign," and cites a D.C. District Court telephone
antitrust action as the main support for its proposition. Def Mot. at 6; see United States v.
American Tel. & Tel. Co., 498 F. Supp. 353 (D.C.D.C. 1980). The defense also looks to United
States V. Kattar, which potentially limits the holding in American Telephone & Telegraph
Company. United States v. Kattar, 840 F.2d 118, 130-31 (1st Cir. 1988) ("Whether or not the
entire federal government in all its capacities should be deemed a party-opponent in criminal
cases, cf United States v. American Tel. & Tel., 498 F. Supp. 353, 356-58 (D.D.C.1980) (civil
case), the Justice Department certainly should be considered such."). Furthermore, the First
Circuit does not hold that statements by alleged government agents are admissible as statements
of party opponents under Rule 801(d)(2). See Kattar, 840 F.2d at 118. The court found that the
Justice Department was the party opponent under Rule 801(d)(2)(B) and its statements made in a
formal prosecution 'establish the position of the United States and not merely the views of its
agent who participate therein.'" Id. at 131 (citing United States v. Powers, 467 F.2d 1089, 1097
n.l (7th Cir. 1972) (Stevens, J., dissenfing). In its limited finding, the court noted that "[t]he
government cannot indicate to one federal court that certain statements are trustworthy and
accurate, and then argue to a jury in another federal court that those same assertions are hearsay."
Kattar, 840 F.2d at 131.
Not only is the defense's position untenable, but it is not supported by case law. Other
federal circuit courts have repeatedly held that government agents are not party-opponents. See
United States v. Arroyo, 406 F.3d 881, 888 (7th Cir. 2005) ("This Court has held that
government agents are not party-opponents for purposes of Rule 801(d)(2)"); see also United
States V. Booker, 375 Fed. Appx. 225, 230-31 (3d Cir. 2010) ("Here, the party-opponent is the
United States.... several courts, including, ours, 'have held that statements by police officers or
other law enforcement officials are not admissible on an admissions theory as substantive
evidence against the sovereign in a criminal prosecution.'") (quoting L/ppa>^ v. Christos, 996
F.2d 1490, 1497 (3d Cir. 1993)); United States v. Kapp, 781 F.2d 1008, 1014 (3d Cir. 1986)
("There is no authority for the proposition that the prosecution is a 'party' against whom such
[Rule 801(d)(2)] evidence can be offered.").
United States v. Kampiles is also instructive on this point. United States v. Kampiles, 609
F.2d 1233, 1246 (7th Cir. 1979), cert, denied, 446 U.S. 954, 100 S. Ct. 2923 (1980). In
Kampiles, the defense tried to offer the statement of a former CIA employee as the statement of a
party opponent under Rule 801 (d)(2)(D). Id. In ruling against the defense, the Seventh Circuit
explained why Federal Rule of Evidence 801(d)(2) is not imputed onto government agents. Prior
to the adoption of the Federal Rules of Evidence, "admissions by government employees in
criminal cases were viewed as outside the admissions exception to the hearsay rule." Id. at 1246
(citing United States v. Powers, 467 F.2d 1089, 1095 (7th Cir. 1972); see also United States v.

23144

^^^^^.^,372F2dl77,180(2dCirl967)("Thoughagovemmentprosecutionisan
exemplification ofthe adversary process, nevertheless,when the Government prosecutes, it
prosecutes on behalfofall the people ofthe United States; therefore all persons, whether law
enforcement agents, government investigators, complaining prosecuting witnesses, or the like,
who testify on behalf ofthe prosecution, and who, becauseof an employment relation or other
personal interest in the outcome ofthe prosecution, may happen to be inseparably connected
with the government side ofthe adversary process, stand in relation to the United States and in
relation to the defendant no differently from persons unconnected with the effective development
of or furtheranceofthe success of, the prosecution. Therefore, the inconsistent outof-court
statements ofagovemment agent made in the course ofthe exercise ofhis authority and within
the scopeofthatauthority,which statements would be admissions binding upon an agent's
principal in civil cases, are not so admissible here as'evidenceof the fact.'").
According to the ^^B^^^7^.^court,"[b]ecause the agents ofthe Government are
supposedly disinterested in the outcome ofatrial and are traditionally unable to bind the
sovereign,...their statements seem less the product ofthe adversary process and hence less
appropriately described as admissions ofaparty." .^^^^^7^.^,609F.2datl246(citing^^^^^^,
372F.2datl80). The court determined that "[njothing in the Federal RulesofEvidence
suggests an intention to alter the traditional rule." ^^^^^7^.^,609F.2datl246.
As such, all ofthe statements cited by the defense,which were allegedlymade by an
individual who "either serves asahigh-level government bureaucrat, headingagovemment
agency with the ability to bind the govemment through policy making decisions, or, as part of
his employment, spoken on behalfofthose who did^do have the ability to bind the sovereign"
should not be admissible under MRE 801(d)(2).
CONCLUSION
For the reasons stated above, the United States respectfully requests this Court deny,in
part, the Defense Motion for Judicial Notice and Admission ofPublic Statements.

ANGEEMOVE^GAARD
CPT,JA
^
AssistantTrial Counsel

^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^
B^DEA^MORROW
^PT,JA
AssistantTrial Counsel

23145

I certify that I served or caused to be served a tme copy of the above on Defense Counsel,
via electronic mail, on 17 August 2012.

^^'W.*>-
MORROW

:PT, JA
Assistant Trial Counsel

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

23146

FOR OFFICIAL USE ONLY

v. Prosecution Witness List

14 August 2012



The United States may call the following witnesses to testify at the Article 13 motion

hearing of the above-captioned court?martial:

l.

10.

ll.

12.

13.

CWO4 James Averhart, Navy Consolidated Brig Chesapeake, Chesapeake, VA, 23322,

CWO2 Denise Bames, Deputy Command Inspector General, Marine Corps Base
Quantico (MCBQ), Quantico, vA, 22134-

Craig Blenis, Security Battalion, Camp Pendleton, CA, 92055-

CPT Joseph asamatta, 2d Battalion, 346th Regiment, Camp Shelby, MS, 39407,

Col (R) Daniel Choike (currently on terminal leave), Technology Associates, McLean,
VA, 22101,

l,Cpl Jonathan Cline, Headquarters Security Battalion, Quantico, VA, 22134,

COL Carl Coffman, United States Forces-Afghanistan,

William Fuller, Headquarters Marine Corps (HQMC), Arlington, VA, 22204,

W05 Abel Galaviz, Security and Law Enforcement Branch, Security Division,
Corrections Section, Arlington, VA, 22204-

SSG Ryan Jordan, United States Army Recruiting Command,
Brian Papakie, HQMC, Arlington, VA, 22204-
APT (R) Jonathan Richardson (currently on terminal leave), Oceanside, CA, 92049,

LTC Robert Russell, Joint Task Force Guantanamo Bay (J TF -GTMO) (will be departing

for JTF-GTMO on or about 22 September 201 2

?72
1 PAGE
FOR OFFICIAL USE ONLY PAGE OF PAGES



23147

FOR OFFICIAL USE ONLY

14- ML J?ShuaTankers'?

15. Terrance Webb, Navy Munitions Command, CONUS East Division, Detachment

Sewells Point, Norfolk, VA, 235 3-

16. LCDR Eve Weber, Naval Academy Annapolis, Annapolis, MD, 21402,

17. ISG Bruce Williams, Headquarters and Headquarters Company, United States Army
Garrison, Joint Base Myer-Henderson Hall, VA, 2221 l,

The United States reserves the right to supplement this witness list based on the defense?s
supplemental witness list, and supplemental motion.

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?Manial
(RCM) 703 and the standard articulated in United States v. Rockwood, 52 MJ. 98, lO5 (1999)
that a witness request include a ?synopsis of expected testimony,? not merely a list of topics to
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 Touhy v. Ragen, 340 U.S. 462 (1951).



ALEXANDER VON ELTEN
CPT, A
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 I4 August 2012.

Qt

ALEXANDER VON ELTEN
CPT, A
Trial Counsel

2
FOR OFFICIAL USE ONLY

UNITED STATES
v.

MANNING, Bradley E.. PFC

U.S. Army,

Headquarters and Headquarters Company. U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221 I

23148

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

DEFENSE REQUESTED
WITNESSES: ARTICLE 13
MOTION

DATED: I5 August 2012



1. On behalf of PFC Bradley E. Manning, his civilian counsel, David E. Coombs requests the
attendance of the following additional witnesses for purpose of his Article 13 motion:

a) LtGen. George J. Director for Joint Force

Development, The Joint Staff J-7. LtGen. is the former Commanding General of
Marine Corps Combat Development Command. As the Commanding General, he was
the senior rater for Col. Daniel Choike, the former Marine Corps Base Quantico (MCBQ)
Commander and Col. Robert Oltman, the former MCBQ Security Battalion Commander.
LtGen. will testify about requiring the Quantico Brig to report to him, for his
approval. regarding any change in PFC Manning?s handling instructions or assignment
status. Lt.Gen. will testify that prior to any ?nal action taken place with changing
PFC Manning's custody status, he wanted to be able to determine the political impact,
media interest, legal ramifications. and senior leadership reactions. LtGen. will
testify that he received frequent reports, at least once a week, on PFC Manning and his
custody status. LtGen. will testify that he first made inquiries into PFC Manning
within a week of his an?ival at MCBQ. He will testify that he was concerned about the
suicide risk of PFC Manning. He will testify that the Brig had a suicide on 31 January
2010. Based upon the previous suicide he directed Col. Choike and Col. Oltman to
impress ?upon all who come in contact with Pvt. Manning the absolute necessity of
keeping a close watch on His Manning] life has completely fallen apart
which makes him a strong candidate (from my perspective) to take his life." Finally,
LtGen. will recount how he became involved in the day to day issues regarding
PFC Manning.

Col. Christopher Miner Staff Judge

Advocate. 1 Marine Expeditionary Force, Camp Pendleton, CA. Deployed to

Afghanistan. Col. Miner is currently on leave. He will testify that he was the SJA

for LtGen. He will testify that he received regular briefs from LtCol. Greer, Col.

Oltman, and Col. Choike regarding PFC Manning. Based upon the briefs he received

from others, Col. Miner would provide advice to LtGen. regarding PFC Manning.

Col. Miner was included upon emails where Col. Oltman infomied the command that the

Brig OIC, CWO4 Averhart, was holding PFC Manning on Suicide Risk (SR) after the

mental health professionals had recommended his status be changed from SR to



EXHIBIT
PAGE REFERENCED:
PAGES





C)

d)



23149

Prevention of lnjury (POI). Col. Miner will testify that he was aware of the level of
involvement by LtGen. in the custody status of PFC Manning.

Col. (R) Daniel Choike, Technology Associates, McLean, VA, 2210]
Col. (R) Choike will testify regarding his level of involvement in
the custody status of PFC Manning. Col. (R) Choike was receiving weekly reports from
Col. Oltman and Capt. Neil regarding PFC Manning. Col. (R) Choike subsequently
provided weekly reports to LtGen. He will testify that he provided immediate
reports to LtGen. that could have any media impact or portray the MCBQ in a
negative light. Col. (R) Choike will testify that he was aware of a recommendation by
LtCol. Troy Wright, the then Head of Law Enforcement and Corrections Brand for
Headquarters, U.S. Marine Corps, to have Army Corrections take a second look at the
custody classification of PFC Manning. LtCol. Wright had pointed out that one of the
complaints that received a lot of press in how PFC Manning was being held in MAX
custody status. LtCol. Wright believed, just like a competent doctor who has con?dence
in his own work would recommend that a patent get a second opinion, having Anny
Corrections review the Brig?s decisions should not be a problem. Col. (R) Choike will
testify that he along with Col. Oltman directed that the visit be cancelled. Col (R) Choike
will also testify that he instructed Col. Oltman that any changes in PFC Manning?s
custody status must be approved by LtGen. Col. (R) Choike will testify that he
personally called CWO2 Barnes to let her know about LtGen. lynn?s intent regarding
PFC Manning. He told CWO2 Barnes and Col. Oltman that any decision regarding a
change in handling instructions or assignment status without first obtaining LtGen.
F|ynn?s approval was not acceptable. Col. (R) Choike told Col. Oltman that LtGen.
wanted to be able to detennine the political impact, media interest, legal
rami?cations, and senior leadership reactions to any decision regarding PFC Manning.
Col. (R) Choike will testify that he told Col. Oltman that he would not be able to receive
a non?concurrence from LtGen. in writing as Col. Oltman had requested. Instead,
he would simply have to follow the chain of command and adhere to the orders of LtGen.
Finally, he will testify about his involvement in recommending denial of the
multiple Article 138 complaints by PFC Manning.

CDR Han Bui, han.bui@med.navy.mil, Building IA Floor 2, Room 9, Norfolk, VA

2351 . CDR Bui will testify that he believed the MCBQ was
hypersensitive after the suicide of an inmate in January of 2010. He will testify that he
believed that CWO2 Barnes, Col. Oltman, and Col. Choike needed to understand that
there was a big difference between what they wanted behavioral health to do at the Brig
and what they actually needed. He will testify that he felt it was important to inform and
educate his Marine counterparts about what was medically and
appropriate for the care for PFC Manning. He will further testify that it bothered him that
the Brig and other key leaders were ?playing half-doctor? with the care of PFC Manning.
Specifically, he will testify that he did not believe it was appropriate for the brig to place
PFC Marming on ?suicide watch? without consulting him and then wait for the
a few days later to recommend taking him off of suicide watch.

23150

e) Capt. Mary Neill? Capt. Neill is the former commander of the
Naval Health Clinic at MCBQ. She will testify that Col. Choike ordered her to provide
him with a weekly update on PFC Manning. She will testify that she complied with this
order by providing at least weekly reports to Col. Choike. Capt. Neill will testify that the
Brig would provide her with a weekly report that she would then add to for
the bene?t of Col. Choike and Lt.Gen Within the report, she would discuss the
results of the behavioral health visits, the recommendation of the Brig the
nature of PFC Manning?s custody status, and PFC Manning?s overall affect and mood.
She will testify that she was aware of the Brig Capt. William Hocter and
COL Robert Malone?s consistent recommendations to remove PFC Manning from POI
watch. Despite their frequent recommendations, PFC Manning was never removed from
POI. Capt. Neill will testify that Col. Oltman had come to her to express his loss of trust
in the recommendations of Capt. Hocter. She will testify that Col. Oltman blamed Capt.
Hocter for failing to identify the individual who committed suicide in January of 2010 as
a potential suicide risk. She will testify that she was aware that the Brig had displayed
signi?cant concern and was very anxious about the high level of visibility regarding PFC
Manning and the associated risks. Capt. Neill believed that the Brig staff would benefit
from having some of their questions and concerns addressed by her medical staff. She
will also testify that she informed Col. Choike and Col. Oltman that it was her opinion
that the continuation of P01 was not detrimental to PFC Marming. Capt. Neill will testify
that she was also aware of Capt. Hocter?s repeated requests for the Brig to allow PFC
Manning the opportunity to exercise in his cell. She will testify that Capt. Hocter had
noted a decline in the physical conditioning of PFC Manning due to his limited
opportunities to be out of his cell. She also will testify that she took it upon herself to
have a face to face meeting with the Capt. Brian Moore, the former Defense forensic
expert, in infonn him that his access to PFC Manning was only through the
defense counsel channels, and that he since his appointment to the Defense team. he was
no longer part of behavioral health provider team for PFC Manning.

0 LtCol. Christopher M. Greer, . 1 Cherry Point, Marine
Corps Air Station, Cherry Point, NC. LtCol. Greer is currently on PCS leave until 20
August 20l2. He will testify that he was present for the meeting where Col. Oltman
stated that PFC Manning would remain in his current status Maximum Custody and P01
unless and until he received instructions from higher authority to the contrary. LtCol.
Greer will testify that he did not attempt to intervene or correct Col. Olman when he told
Capt. Hocter something to the effect of 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 of that is that is he
will remain on Maximum Custody and P01 indefinitely.? LtCol. Greer will testify that
Capt. Hocter became upset and expressed his concern about holding PFC Manning in
POI when there was no behavioral health justification for such a status. He will testify
that Capt. Hocter did not support the P01 status, but was told that his recommendation
was just a part of the overall classification assessment. He will testify that Col. Oltman
told Capt. Hocter that he should just make his recommendations and that they (the
confinement facility) would do what they wanted to do. LtCol. Greer will also testify
that he provided regular updates to Col. Choike, Col. Oltman, and LtGen. lynn?s SJA

3)

23151

(Col. Christopher Miner) about PFC Manning. Finally, LtCol. Greer will testify that he
was aware of a request by the Defense to the Convening Authority, COL Coffman, to
remove PFC Manning from POI. He will testify that he informed Col. Choike and Col.
Oltman to ?stand by for heavy rolls if the CA decides to request the Base commander to
review and consider removing Manning?s POI status.? He will also testify that he
infonned the Army that ?unless you want to run our Brig, I think you undercut your own
legal position if you actually recommend that the P01 status be removed. We are the
jailors, either you trust us or you don?t. If you don?t, then move him." LtCol. Greer also
will testify that he informed the prosecution that ?we (the marines) have the day to day
responsibility for Manning and if they (the Army) are unhappy with Manning(?s) current
status, then someone in the Army needs to take custody of him or relive (sic) us of the
responsibility of his welfare.? He will further testify that he ?reiterated our concern (the
marines) that if something goes wrong, there is not a single Army person that would be
held responsible or found to be accountable as long as he stays with us.? LtCol. Greer
will testify that he was included on emails where LtCol. Wright, the then Head of Law
Enforcement and Corrections Brand for Headquarters, U.S. Marine Corps, stated ?to take
measures that are consistent with suicide watch, but not officially place that person in a
suicide watch status is inconsistent with the way we are supposed to do business.?

CPT John Haberland . Regimental Judge Advocate,20l
Jackson Ave, Fort Myer, VA 22003. (703) 696-3150. He will testify that he acted as the
conduit between the Army and Marines regarding the confinement of PFC Manning.
Specifically, he will testify that he collected information in order to address a possible
Article 13 motion by the Defense, and coordinated responses to the Defense regarding the
confinement restrictions imposed upon PFC Manning. CPT Haberland will testify about
how the Army knew of the manner in which PFC Manning was being held at the
multiple complaints by PFC Manning?s civilian counsel regarding the custody conditions;
PFC Manning?s multiple Article 138 complaints; and PFC Manning RCM 305(g) request
to COL Coffman to either remove him from pretrial con?nement or direct his removal
from P01.

2. The Defense requests that the Government stipulate to the relevance and necessity of its own
witnesses for the purposes of RCM 703. Thus, the Defense hereby incorporates and adopts the
following witnesses identified by the United States as Government witnesses on 14 August 2012CO1. Carl Coffman, United States Forces-Afghanistan,

CWO5 Abel Galaviz, Security and Law Enforcement Branch, Security Division,

Corrections Section, Arlington, VA, 22204,
CWO4 James Averhart, Navy Consolidated Brig Cheasapeake, Cheasapeake, VA, 23222,

CWO2 Denise Barnes, Deputy Command Inspector General, Marine Corps Base
Quantico (MCBQ), Quantico, VA 22134

Craig Blenis, Security Battalion, Camp Pendleton, CA, 92055,
Brian Papakie, HQMC, Arlington, VA, 22204, and

William Fuller, Headquarters Marine Corps (HQMC), Arlington. VA. 22204,

23152

3. The Defense reserves the right to supplement this witness list should it be necessary to do so.
If the Defense submits any additional request for witnesses, it will do so in a timely manner.

Respectfully submitted,

VID EDWARD COO BS

Civilian Defense Counsel

23153

FOR OFFICIAL USE ONLY

UNITED STATES OF AMERICA

v. Prosecution Witness List
Manning, Bradley E.

PFC, U.S. Army,

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

14 August 2012



The United States may call the following witnesses to testify at the Article 13 motion
hearing of the above-captioned court-martial:

l. CWO4 James Averhart, Navy Consolidated Brig Chesapeake, Chesapeake, VA, 23322,

2. CWO2 Denise Barnes, Deputy Command Inspector General, Marine Corps Base
Quantico (MCBQ), Quantico, VA, 22134.-

3. Craig Blenis, Security Battalion, Camp Pendleton. CA, 92055,

4. Joseph Casamatta, 2d Battalion, 346th Regiment, Camp Shelby, MS, 39407,

5. Col (R) Daniel Choike (currently on terminal leave). Technology Associates. McLean,



6. Jonathan Cline, Headquarters Security Battalion, Quantico, VA, 22134.

7. COL Carl Coffman, United States Forces-Afghanistan,

8. William Fuller, Headquarters Marine Corps (HQMC), Arlington, VA, 22204,
9. CWO5 Abel Galaviz, Security and Law Enforcement Branch, Security Division,
Corrections Section, Arlington, VA, 22204, 1

10. SSG Ryan Jordan, United States Army Recruiting Command.?
11. Brian Papakie, HQMC, Arlington, VA, 22204-
12. CAPT (R) Jonathan Richardson (currently on terminal leave), Oceanside, CA, 92049,

13. LTC Robert Russell. Joint Task Force Guantanamo Bay (JTF-GTMO) (will be departing
for JTF-GTMO on or about 22 September 2012),

1
FOR OFFICIAL USE ONLY



I5.

16.

23154

FOR OFFICIAL USE ONLY

GMI Terrance Webb, Navy Munitions Command, CONUS East Division, Detachment

Sewells Point, Norfolk, VA. 23513-

LCDR Eve Weber, Naval Academy Annapolis. Annapolis. MD, 21402,


ISO Bruce Williams, Headquarters and Headquarters Company, United States Amty
Garrison, Joint Base Myer-Henderson Hall, VA, 2221

The United States reserves the right to supplement this witness list based on the defenses

supplemental witness list, and supplemental motion.

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 ourts-Martial
(RCM) 703 and the standard articulated in United States v. Rockwood, 52 MJ. 98, I05 1999)
that a witness request include a ?synopsis of expected testimony.? not merely a list of topics to
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 Touhy v. Ragen, 340 U.S. 462 (I951).

ALEXANDER VON ELTEN
PT, A
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 14 August 2012.

ALEXANDER VON ELTEN
CPT, JA
Trial Counsel

2
FOR OFFICIAL USE ONLY



23155

UNITED STATESOF AMERICA
V.

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

Government Response
to Defense Witness Requests
Article 1^

22August2012

The Govemment reviewed the Defense witness request datedl5 August 2012(Defense
Request). Pursuant to Rule forCourtsMartial (RCM) 703(b)(1), the United States makes the
following determinations regarding Defense requested Article 13 witnesses:
1. LtGen George Flynn: The United States denies production ofLtGen Flynn. The Defense's
proffered testimony ofLlGen Flynn is not relevant and necessary underRCM 703(b)(1). LtGen
Flynn was the commanding general ofthe Marine Corps Combat Development Command,
located at Marine Corps Base Quantico (MCBQ). LtGen Flynn was the commanding officer for
Col Choike, who was the commander ofMCBQ, and Col Choike was the commanding officer of
Col Oilman. Col Choike'sand Col Oltman'sproffered testimony makes LtGen Flynn's
testimony cumulative and unnecessary. The Defense has not offered any evidence to support its
theory that LtGen Flynn issued any orders regarding the accused'sclassification and status. For
example, the email cited by the Defense is LtGen Flynn'sresponse to an article in the NewYork
Times and simply describes LtGen Flynn'sconcem for the accused'ssafety. Additionally, Col
Choike, Col Oilman, CW04Averhart, and CW02 Bames will testifythat LtGen Flynn was not
involved with the day to day issues regarding the accused nor did LtGen Flynn give any
instructions conceming the accused'sclassification and status.
2. Col Christopher Miner: The United States denies production of Col Miner. The Defense's
proffered testimony ofCol Miner is not relevant and necessary underRCM 703(b)(1). Col
Miner was the staff judge advocate(SJA) to LtGen Flynn. In his role as SJA, Col Miner was
carbon copied on emails and provided legal counsel to LtGen Flynn. Col Miner is irrelevant
because he did not make any determinations with regard to the accused'sclassification and
status. Col Choike, Col Oilman, CW04Averhart, and CW02 Bames will testify regarding the
limited extent ofLtGen Flynn'sinvolvement, thereby making Col Miner'steslimony cumulative
and unnecessary.
3. Col Daniel Choike: The United States will produce Col Choike.
4. CDR Han Bui: The United States will produce CDR Bui. CDR Bui provided medical care to
the accused.
5. CAPT Mary Neill: The United States denies production ofCAPT Neill. The Defense's
proffered testimony ofCAPT Neill is not relevant and necessary underRCM 703(b)(1). CAPT
Neill isadentist and was the commanderofthe Naval Health Clinic at MCBQ. CAPTNeill's
testimony is irrelevant because she did not provide psychiatric or medical care to the accused.
CAPT Neill did not proffer an opinion on the accused'sPOI status or classification. Duringa
A^PELLATEEX^^I8IT ^ ^ ^ ^
PAGEREFERENCED:
^^GE
^OF
^AGE^

23156

telephonic interview with the prosecution in response to the Defense Request, CAPT Neill stated
that she did not recall Col Oilman blamingCAPT Hocter for failingtoidentifylhe individual
who committed suicide inJanuary2010asasuicide risk. Col Oilman will beawitness and can
testify about his own thoughts regarding CAPT Hocter'srecommendations, thereby making
CAPT Neill'stestimony cumulative and unnecessary. CAPT Neill stated that she suggested the
parties gather to discuss the process of determining the accused'sstatus and classification, but
she did not offer opinions regarding the actual decisions ofwhat the accused'sstatus and
classification should have been.
6. LtCol Christopher Greer: The United States denies production ofLlCol Greer. LtCol Greer
was the SJAto Col Choike and Col Oilman. The Defense's proffered testimony ofLlCol Greer
is not relevant and necessary underRCM 703(b)(1). The Defense has not presented any
evidencedemonstratingthat LlCol Greer possessesaunique perspective. The Defense proffers
testimony from both Col Oilman and CAPT Hocter that they will testify about their own
statements and what other statements each heard during meetings; therefore, LtCol Greer's
testimony is cumulative and unnecessary.LlColGreer'stestimony is also irrelevant because
LtCol Greer did not make any determinations regarding the accused'sclassification and status
during the accused'sconfinemenL
7. CPT John Haberland: The United States denies production of CPT Haberland. CPT
Haberland wasamember of the prosecution team during the accused'sconfinement at the Brig
at MCBQ. CPT Haberland'scomments and writings are work producL Therefore, CPT
Haberland'scommunication and testimony are privileged. RCM 701(f); .^^^^^.^^^^^^^^^^^^^.^
1^. ^^^^^^^^^,25 M.J.263,269(C.M.A.1987) ("Even though liberal,discovery in the military
does not'justify unwarranted inquiries into the files and the mental impressions of an
attomey'")(quoting7^^^^^^^7^^^^^^,329US 495,510(1947))
The United States does not stipulate tothe relevance and necessity ofits witnesses for the
purposesofRCM 703. The United States denies production ofthe following individuals: COL
CariCoflman,CW05 Abel Galaviz, CW04JamesAverhart,CW02 Denise Bames, MSgt Craig
Blenis, MSgt Brian Papakie, and GySgt William Fuller. The Defense'srequest fails to meet the
^^^^^^^^^^^^^^^^^^^^,52MJ 98,105 ( C A A F 1999),andtheRCM 703(c)(2)(B)(i)
standard thatawitness request includea"synopsis of expected testimony." The Defense's
request does not provide an adequate description ofthe proffered testimony for these witnesses
underRCM 703(c)(2)(B)(i). The United States will reconsider this request should the Defense
proffer an adequate description demonstrating the relevance and necessity to the Defense'scase
of each witness'sexpected testimony.

ALEXANDER ^G^ELTEN
CPT,JA
AssistantTrial Counsel

23157

Icertifythatlserved or caused to be servedatme copy ofthe above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 22 August 2012.

ALEXANDER ^G^ELTEN
CPT,JA
Assistant Trial Counsel



23158

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE MOTION TO
v. COMPEL PRODUCTION

OF WITNESSES FOR

ARTICLE 13 MOTION
MANNING, Bradley E., PFC
U.S. Army,
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 24 August 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 (RCM) 703(b)(l) requests this Court to compel production of the below listed
witnesses .

BACKGROUND

2. The Defense requests that the Court consider the background facts provided in Appellate
Exhibit 206 and in the Defense Supplemental Article 13 Motion filed on 24 August 2012.

3. The Government provided 84 emails to the Defense on 26 July 2012. After having an
opportunity to review these emails, the Defense identi?ed additional witnesses for the Article 13
motion. The Defense obtained the latest available contact information for each of the witnesses
on either Army Knowledge Online (AKO) or the Joint Enterprise Directory Services (JEDS).
However, due to retirements, deployments, or just outdated information on AKO or EDS the
Defense was not able to coordinate interviews of some of the witnesses.

4. On 14 August 2012, the Government provided the Defense with its witness list for the Article
13 motion. The Government listed 17 witnesses that it intended to call for the purposes of the
motion.

5. On 15 August 2012, the Defense filed its supplemental Article 13 witness list. By that point,
the Defense had narrowed its witness list to 14 additional witnesses. Seven of the identi?ed
witnesses were also on the Govemment?s witness list. As such, the Defense listed these
witnesses by name and requested that the Government stipulate to their obvious relevance and
necessity given the fact the Government planned to call them as well.

6. For the other seven witnesses not on the Government?s witness list, the Defense provided a
synopsis of their expected testimony under RCM The proffer clearly
demonstrated the relevance and necessity for each of the following requested witnesses

23159

a) LtGen. George J.

b) Col. Christopher Miner;

c) Col. (R) Daniel Choike;

d) CDR Han Bui;

e) Capt. Mary Neill;

f) LtCol. Christopher Greer; and
g) CPT John Haberland;

7. On 22 August 2012, the Government provided its response to the additional requested
witnesses by the Defense. The Government denied production of LtGen. Col. Miner,
Capt. Neill, LtCol. Greer, and CPT Haberland. Additionally, the Government refused to
stipulate to the relevance and necessity of its own listed witnesses for the purposes of RCM 703.
As such, the Government denied the production of COL Carl Coffman, CWO5 Abel Galaviz,
CWO4 James Averhart, CWO2 Denise Barnes, Craig Blenis, Brian Papakie, and
William Fuller.

ARGUMENT

A. The Government is Acting in Bad Faith in Contesting the Relevance and Necessity
of Its Own Witnesses

8. The Government is once again proceeding in bad faith in contesting the relevance and
necessity of numerous facially relevant witnesses. The Defense has never heard of a scenario
where the Government has contested the relevance and necessity of its own witnesses. How can
it be that a witness is relevant and necessary for the Government, but not equally relevant and
necessary for the Defense? The Government opposes production of these witnesses, apparently
because it believes the Defense did not comply with RCM and United States v.
Rockwood, 52 M.J. 98 (C.A.A.F. 1999). RCM 703(c)(2) is intended to be administrative in
nature such that the Government can arrange to actually contact these witnesses and bring them
to court. As stated in the Analysis to RCM 703:

[T]he trial counsel is responsible for the administrative aspects of production of
witnesses. Thus, . . . the defense submits its list of witnesses to the trial counsel so
that the latter can arrange for their production. The trial counsel stands in a
position similar to a civilian clerk of court for this purpose. Because most defense
requests for witnesses are uncontested, judicial economy is served by routing the
list directly to the trial counsel, rather than to the military judge first. This also
allows the trial counsel to consider such alternatives as offering to stipulate or
take a deposition, or recommending to the convening authority that a charge be
withdrawn . . . . Further, it allows arrangements to be made in a more timely
manner, since the trial counsel is usually more readily available than the military
judge. Only if there is a genuine dispute as to whether a witness must be
produced is the issue presented to the military judge by way of a motion.





23160

Drafters? Analysis, Manual for Courts-Martial, United States (MCM), A21-36 (2008
added). Is the Government truly saying that there is a ?genuine dispute? as to
whether witnesses that the Government itself plans to call must be produced? As with so many
other issues in this case, the lack of good faith on the part of the Government is troubling.

9. The Defense believes that the witnesses on the Govemment?s witness list are relevant and
necessary for painfully obvious reasons:

a) CWO4 James Averhart and CWO4 Denise Barnes. Both were the Of?cers in Charge of
the Brig during the relevant time period. Both (at least in theory) made the custodial
classi?cation determinations pertaining to PFC Manning. Both will testify regarding
their classi?cation determinations, their disdain for, and questioning of, medical opinions,
and their knowledge of LtGen. involvement in the case. Both will testify about
the speci?c instances that PFC Manning was placed on Suicide Risk or where his special
handling instructions were increased.

b) COL Carl Coffman. COL Coffman was the Special Court-Martial Convening Authority.
He will testify about what he knew about PFC Manning?s con?nement conditions and
why he did not ask Quantico of?cials to remove PFC Manning from POI. He will also
testify about whether he knew of LtGen. involvement in the case.

c) Craig Blenis, Brian Papakie, and William Fuller. All these
individuals sat on PFC Manning?s Board and will testify why they made
recommendations to retain PFC Manning in MAX and on POI despite doctors?
recommendations to the contrary. All these individuals will testify that they knew about
LtGen involvement in the case. Papakie will testify about his homophobic
comment about PFC Manning?s ?panties.? Blenis will testify why he made the
comment to the effect of ?We felt like being dicks.? Fuller will testify about the
harassment of PFC Manning during recreation call on 18 January 2011.

d) CWO5 Abel Galaviz. He will testify about his ?independent? investigation at the behest
of Col. Choike. He will also testify that he was involved in PFC Manning?s con?nement
since he arrived at Quantico and was copied on numerous emails prior to being assigned
as an ?independent? investigator as part of the Article 138 Complaint.

B. The Additional Witnesses Denied By the Government Are Relevant and Necessary

10. The Defense is entitled to production of witnesses whose testimony ?would be relevant and
necessary? to a matter in issue. RCM 703 In determining relevance of the witness, a court
must turn to the Military Rules of Evidence. See, United States v. Breeding, 44 M.J. 345,
351 (C.A.A.F. 1996). A witness is necessary when the witness is not cumulative, and when the
witness would contribute to a party?s presentation of the case in some positive way on a matter in
issue.? United States v. Credit, 8 M.J. 190, 193 (CMA 1980); see also United States v. Williams,
3 MJ. 239 (C.M.A. 1977).

23161

1 l. The Defense requests production of LtGen. George Capt. Mary Neill, LtCol.
Christopher Greer, Col. Christopher Miner, and CPT John Haberland.

l2. LtGen. George In its original witness request, the Defense stated the relevance and
necessity of LtGen. lynn?s testimony:

LtGen. George J. Director for Joint Force
Development, The Joint Staff J-7. LtGen. is the former Commanding General of
Marine Corps Combat Development Command. As the Commanding General, he was
the senior rater for Col. Daniel Choike, the former Marine Corps Base Quantico (MCBQ)
Commander and Col. Robert Oltman, the former MCBQ Security Battalion Commander.
LtGen. will testify about requiring the Quantico Brig to report to him, for his
approval, regarding any change in PFC Manning?s handling instructions or assignment
status. LtGen. will testify that prior to any final action taken place with changing
PFC Manning"s custody status, he wanted to be able to determine the political impact,
media interest, legal rami?cations, and senior leadership reactions. LtGen. will
testify that he received frequent reports, at least once a week, on PFC Manning and his
custody status. LtGen. will testify that he first made inquiries into PFC Manning
within a week of his arrival at MCBQ. He will testify that he was concerned about the
suicide risk of PFC Manning. He will testify that the Brig had a suicide on 31 January
2010. Based upon the previous suicide he directed Col. Choike and Col. Oltman to
impress ?upon all who come in contact with Pvt. Manning the absolute necessity of
keeping a close watch on His Manning] life has completely fallen apart
which makes him a strong candidate (from my perspective) to take his life.? Finally,
LtGen. will recount how he became involved in the day to day issues regarding
PFC Manning.

13. The Government contests the relevance and necessity of LtGen. testimony largely
by attempting to mislead the Court. The Government writes:

Col Choike?s and Col Oltman?s proffered testimony makes LtGen testimony
cumulative and unnecessary. The Defense has not offered any evidence to support its
theory that LtGen issued any orders regarding the accused?s classi?cation and
status. For example, the email cited by the Defense is LtGen response to an
article in the New York Times and simply describes LtGen concern for the
accused?s safety. Additionally, Col Choike, Col Oltman, W04 Averhart, and CWO2
Barnes will testify that LtGen was not involved with the day?to-day issues
regarding the accused nor did LtGen give any instructions concerning the
accused?s classification and status. See Government Response to Defense Witness
Request: Article 13. p. 1.

l4. The Defense does not understand the Govemment?s ?cumulative? argument. The
Government states that Col. Choike, Col. Oltman, CWO4 Averhart and CWO2 Barnes will all
testify about LtGen. involvement in PFC Manning?s custody status. Id. lt seems
obvious that LtGen. can best speak to LtGen. involvement in the case and the
other witnesses will be used to either corroborate or discount this testimony. The Defense?s



23162

position is that PFC Manning?s custody status in this case was ultimately determined by LtGen.
Everyone below him in the chain of command was putting LtGen. guidance into
effect. How is it, then, that LtGen. testimony is cumulative?

15. Further, the Government?s statement that the Defense ?has not offered any evidence to
support its theory that LtGen. issued any orders regarding the accused?s classi?cation
status? is ludicrous. In an email from Col. Choike to Col. Oltman (which was provided to the
Defense by the Government), Col. Choike clearly states:

You and I supporting/concurring with the Brig decisions that change
handling instructions or assignment status, without passing that info to CG
[LtGen. for consideration, is no longer acceptable. We/you are
not going to get anything in writing from CG [LtGen. if he
rejects/modi?es a recommendation. Memo?s for the record can be discussed more
between you and I, in an effort to address your concerns about proper
documentation/?le keeping.

Summary - #1 - yes adhere to the chain of command, and hopefully you
understand why that didn?t happen right now. #2 Yes - recommendations
forwarded to me for discussion and concurrence and then recommendation
forwarded to CG, [LtGen. before implementation. I will not
blindly forward a recommendation to the CG, instead I?ll discuss it with you so
you will know exactly what I forward. #3 Non-concurrence in writing - we need
to discuss and determine the best way to document decision/?nal actions for the
record. CG [LtGen. wants to be able to determine political impact, media
interest, legal rami?cations, and senior leadership reactions, and can?t do so
without him being in the loop upfront.

See Attachment A to Defense Supplemental Article 13 Motion, Bates Number 00449914 through
00449915. It is abundantly clear from this one email alone that LtGen. was the one who
was ?calling the shots.? Decisions that ?change handling instructions or assignment status? were
to be made ultimately by LtGen. LtGen. in making these determinations, wanted
to be able to ?determine the political impact, media interest, legal rami?cations, and senior
leadership reactions? about anything involving PFC Manning?s con?nement status. Id. In light
of just this one email (not to mention the others that the Government has provided), it is a ?at out
falsehood to say that ?LtGen did not give any instructions concerning the accused?s
classi?cation and status.? The Government also contests that LtGen was involved in day-
to-day issues regarding the accused. Apparently, the Government must have missed the email to
LtGen. explaining that Defense counsel had called the Brig after hours, or the email where
LtGen. asked whether PFC Manning?s visitors who had been denied entrance to Quantico
had been called a cab. See Attachment A to Defense Supplemental Article 13 Motion, Bates
Number 0044933-36.

16. It is obvious why the Government is making this feeble attempt to contest the relevance and
necessity of LtGen. testimony it is rather embarrassing to have to call a three-star
general and explain why he was giving guidance to those in his chain of command that he would

23163

ultimately call the shots when it came to PFC Manning. However, in light of these emails, there
is no witness who is more relevant and necessary for production than LtGen.

17. Capt. Mary Neill. Capt. Neill is the former commander of the Naval Health Clinic at
MCBQ. She will testify that Col. Choike ordered her to provide him with a weekly update on
PFC Manning. She will testify that she complied with this order by providing at least weekly
reports to C01. Choike. Capt. Neill will testify that the Brig would provide her with
a weekly report that she would then add to for the bene?t of Col. Choike and LtGen.
Within the report, she would discuss the results of the behavioral health visits, the
recommendation of the Brig the nature of PFC Manning?s custody status, and PFC
Manning?s overall affect and mood. She will testify that she was aware of the Brig
Capt. William Hocter and COL Robert Malone?s consistent recommendations to remove PFC
Manning from POI watch. Despite their frequent recommendations, PFC Manning was never
removed from POI. Capt. Neill will testify that Col. Oltman had come to her to express his loss
of trust in the recommendations of Capt. Hocter. She will testify that Col. Oltman blamed Capt.
Hocter for failing to identify the individual who committed suicide in January of 2010 as a
potential suicide risk. She will testify that she was aware that the Brig had displayed signi?cant
concern and was very anxious about the high level of visibility regarding PFC Manning and the
associated risks. Capt. Neill believed that the Brig staff would bene?t from having some of their
questions and concerns addressed by her medical staff. She will also testify that she informed
Col. Choike and Col. Oltman that it was her opinion that the continuation of P01 was not
detrimental to PFC Manning. Capt. Neill will testify that she was also aware of Capt. Hocter?s
repeated requests for the Brig to allow PFC Manning the opportunity to exercise in his cell. She
will testify that Capt. Hocter had noted a decline in the physical conditioning of PFC Manning
due to his limited opportunities to be out of his cell. She also will testify that she took it upon
herself to have a face to face meeting with the Capt. Brian Moore, the former Defense forensic
expert, to inform him that his access to PFC Manning was only through the defense
counsel channels, and that since his appointment to the Defense team, he was no longer part of
behavioral health provider team for PFC Manning.

18. The Government has denied production of Capt. Neill on the following basis:

The United States denies production of CAPT Neill. The Defense?s proffered testimony
of CAPT Neill is not relevant and necessary under RCM 703(b)(1). CAPT Neill is a
dentist and was the commander of the Naval Health Clinic at MCBQ. CAPT Neill?s
testimony is irrelevant because she did not provide or medical care to the
accused. CAPT Neill did not proffer an opinion on the accused?s POI status or
classi?cation. During a telephonic interview with the prosecution in response to the
Defense Request, CAPT Neill stated that she did not recall Col Oltman blaming CAPT
Hocter for failing to identify the individual who committed suicide in January 2010 as a
suicide risk. Col Oltman will be a witness and can testify about his own thoughts
regarding CAPT Hocter?s recommendations, thereby making CAPT Nei1l?s testimony
cumulative and unnecessary. CAPT Neill stated that she suggested the parties gather to
discuss the process of determining the accused?s status and classi?cation, but she did not
offer opinions regarding the actual decisions of what the accused?s status and

23164

classi?cation should have been. See Government Response to Defense Witness Request:
Article 13, p. 1-2.

19. It is not true that Capt. Neill did not ?proffer an opinion on the accused?s POI status.? Capt.
Neill was tasked with taking information from Capt. Hoctor and Col. Malone and passing it up
the food chain to Col. Oltman (where ultimately it was passed onto Col. Choike and LtGen.
The fact that Capt. Neill was a dentist raises questions as to why she was entrusted to be
the ?broken telephone? conduit. It is indeed strange that opinions are ?ltered through
a dentist up the chain of command. In one instance, on 2 February 201 1, after Capt. Neill
forwarded Col. Malone?s recommendation to remove PFC Manning to Col. Oltman, Col. Oltman
writes, ?The Dr. Recommends removal from POI but stats [sic] that the risks and bene?ts of
continued POI are not detrimental or at least that?s how I read what he wrote.? See
Attachment A to Defense Supplemental Article 13 Motion, Bates Number 00449840. Then Capt
Neill weighs in, ?Concur that review states that remaining in continuation of P01 is NOT
detrimental to detainee.? Id. Why is Capt. Neill, a dentist, weighing in on how she interprets the
doctor?s recommendation? Why is Capt. Neill, a dentist, tasked with the role of keeping Col.
Oltman in the loop?

20. LtCol. Christopher Greer. LtCol. Greer will testify that he was present for the meeting
where Col. Oltman stated that PFC Manning would remain in his current status Maximum
Custody and P01 unless and until he received instructions from higher authority to the contrary.
LtCol. Greer will testify that he did not attempt to intervene or correct Col. Olman when he told
Capt. Hocter something to the effect of 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 of that is that is he will remain on
Maximum Custody and P01 indefinitely.? LtCol. Greer will testify that Capt. Hocter became
upset and expressed his concern about holding PFC Manning in POI when there was no
behavioral health justi?cation for such a status. He will testify that Capt. Hocter did not support
the P01 status, but was told that his recommendation was just a part of the overall classi?cation
assessment. He will testify that Col. Oltman told Capt. Hocter that he should just make his
recommendations and that they (the con?nement facility) would do what they wanted to do.
LtCol. Greer will also testify that he provided regular updates to C01. Choike, Col. Oltman, and
LtGen. SJA (Col. Christopher Miner) about PFC Manning. Finally, LtCol. Greer will
testify that he was aware of a request by the Defense to the Convening Authority, COL Coffman,
to remove PFC Manning from POI. He will testify that he informed Col. Choike and Col.
Oltman to ?stand by for heavy rolls if the CA decides to request the Base commander to review
and consider removing Manning?s POI status.? He will also testify that he informed the Army
that ?unless you want to run our Brig, I think you undercut your own legal position if you
actually recommend that the P01 status be removed. We are the jailors, either you trust us or
you don?t. If you don?t, then move him.? LtCol. Greer also will testify that he informed the
prosecution that ?we (the marines) have the day to day responsibility for Manning and if they
(the Army) are unhappy with Manr1ir1g(?s) current status, then someone in the Army needs to
take custody of him or relive (sic) us of the responsibility of his welfare.? He will further testify
that he ?reiterated our concern (the marines) that if something goes wrong, there is not a single
Army person that would be held responsible or found to be accountable as long as he stays with
us.? LtCol. Greer will testify that he was included on emails where LtCol. Troy Wright, the
Head of Law Enforcement and Corrections Branch for Headquarters, U.S. Marine Corps, stated

7



23165

?to take measures that are consistent with suicide watch, but not of?cially place that person in a
suicide watch status is inconsistent with the way we are supposed to do business.?

21. The Government resists producing LtCol. Greer on the following basis:

The Defense has not presented any evidence demonstrating that LtCol Greer possesses a
unique perspective. The Defense proffers testimony from both Col Oltman and CAPT
Hocter that they will testify about their own statements and what other statements each
heard during meetings; therefore, LtCol Greer?s testimony is cumulative and
unnecessary. LtCol Greer?s testimony is also irrelevant because LtCol Greer did not
make any determinations regarding the accused?s classi?cation and status during the
accused?s con?nement. See Government Response to Defense Witness Request: Article
13, p. 2.

22. The test is not whether LtCol. Greer possesses a ?unique perspective? the test is whether
his testimony would contribute to the Defense?s presentation of the case in some positive way on
a matter in issue.? United States v. Credit, 8 M.J. 190, 193 (CMA 1980); see also United States
v. Williams, 3 MJ. 239 (C.M.A. 1977). The Defense submits that LtCol. Greer will corroborate
Dr. Hocter?s recollection that he very clearly and emphatically stated that PFC Manning should
not be on POI from a perspective. He will also testify that he relayed the contents of
this meeting to trial counsel (presumably MAJ Fein), such that MAJ Fein was also aware that

POI was not recommended from a perspective and was on notice of Article 13 issues.

LtCol. Greer will also testify that he wrote an email recommending that the Army not make a
fuss about these issues lest is be ?prepared for heavy rolls.? See Attachment A to Defense
Supplemental Article 13 Motion, Bates Number 0044993 8-9. LtCol. Greer will also testify that
he knew about LtGen. involvement from Day 1 in PFC Manning?s case.

23. Col. Christopher Miner. He will testify that he was the SJA for LtGen. He will
testify that he received regular briefs from LtCol. Greer, Col. Oltman, and Col. Choike regarding
PFC Manning. Based upon the briefs he received from others, Col. Miner would provide advice
to LtGen. regarding PFC Manning. Col. Miner was included upon emails where Col.
Oltman informed the command that the Brig OIC, CWO4 Averhart, was holding PFC Manning
on Suicide Risk (SR) after the mental health professionals had recommended his status be
changed from SR to Prevention of Injury (POI). Col. Miner will testify that he was aware of the
level of involvement by LtGen. in the custody status of PFC Manning.

24. The Government resists producing Col. Miner because it believes his testimony is
cumulative and unnecessary and that others will testify regarding the involvement of LtGen.
See Government Response to Defense Witness Request: Article 13, p. 2. Col. Miner is
neither cumulative nor unnecessary. He is clearly involved in the discussions concerning PFC
Manning?s custody status and the guidance provided by LtGen. to his subordinates. As
such, Col. Miner is a relevant and necessary witness.

25. CPT John Haberland. He will testify that he acted as the conduit between the Army and
Marines regarding the confinement of PFC Manning. Specifically, he will testify that he
collected information in order to address a possible Article 13 motion by the Defense, and

23166

coordinated responses to the Defense regarding the con?nement restrictions imposed upon PFC
Manning. CPT Haberland will testify about how the Army knew of the manner in which PFC
Manning was being held at the multiple complaints by PFC Manning?s civilian counsel
regarding the custody conditions; PFC Manning?s multiple Article 138 complaints; and PFC
Manning RCM 305(g) request to COL Coffman to either remove him from pretrial con?nement
or direct his removal from P01.

26. The Government resists producing CPT Haberland on the basis that Haberland was a
member of the prosecution team during the accused?s con?nement at the Brig at MCBQ. CPT
Haberland?s comments and writing are work product.? See Government Response to Defense
Witness Request: Article 13, p. 2. The Government has provided the Defense with emails
written by CPT Haberland. Thus, to the extent that privilege exists, it has been waived with

respect to these emails. Moreover, the Defense will not be inquiring into attorney work product.

Instead, the Defense will inquire about the extent of the Army?s knowledge of PFC Manning?s
con?nement conditions.

Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

23167

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE MOTION TO

v. COMPEL DISCOVERY #3
MANNING, Bradley E., PFC

U.S. Army.

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer. VA 2221]

I7 August 2012



RELIEF SOUGHT

I. In accordance with the Rules for Courts Martial (RC M) 701(a)(2) and 905(b)(4), Manual for
Courts-Martial (MCM), United States, 2008; Article 46, Uniform Code of Military Justice
(UCMJ), l0 U.S.C. 846; and the Fifth and Sixth Amendments to the United States
Constitution, the Defense respectfully requests that the Court compel the requested discovery.
Speci?cally, the Defense requests that the Court order the Government to produce the remaining
1,290 emails that it obtained from Marine Corps Base Quantico (MCBQ) regarding the
confinement conditions of PFC Manning.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party, the Defense has the burden of persuasion. RCM The
burden of proof is by a preponderance of the evidence. RCM 905(c)(l

EVIDENCE

3. 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) Attachment A (Govemment?s Preservation Request, dated 28 April 201

b) Attachment (Response by Quantico indicating all electronic correspondence has been
provided to the trial counsel, dated 20 December 20]

Attachment (Government Discovery Response, dated 14 August 2012);

Attachment (Email from MAJ Ashden Fein, dated 26 July 2012);

Attachment (Email from MAJ Ashden ein, dated 27 July 2012); and

Attachment (Email from MAJ Ashden Fein, dated 14 August 2012).

3333

FACTS

4. On 28 April 2011, the Government submitted a ?request for prudential search and
preservation of information? to Col. Daniel Choike, the Commander of Quantico. See
Attachment A. The document submitted by MAJ Fein requested Col. Choike to ?take any and

1 EXHIBIT
PAGE REFERENCED:






23168

all reasonable and necessary steps to preserve any information held by your command which
concerns or references PFC Manning? and secondly ?that your command conduct a thorough and
comprehensive search of its records for information which relates to PFC Manning?s
con?nement at the Quantico Brig.? Id. In August of 201 1, the Government began receiving
documentation responsive to its preservation request. See Attachment C.

5. On 20 December 2011, LtCol. Christopher M. Greer, the Staff Judge Advocate for Col.
Oltman, confirmed that ?all relevant electronic correspondence, electronic ?les and hard copy
documentary evidence regarding the con?nement of PFC Manning in the possession of Marine
Corp [B]ase Quantico of?cial[s] have been provided. Trial counsel were (sic) permitted to view
and copy all relevant ?les maintained by the Quantico Pretrial Con?nement Facility.? See
Attachment B.

6. The Government began providing documentation related to PFC Manning?s con?nement at
Quantico in October of 201 1. Based upon the volume of the information provided, the Defense
believed that this was the full extent of the information the Government had from Quantico.

7. On 25 July 2012, almost a year after the Government ?rst began receiving documentation
from Quantico, and almost seven months after receiving the last of the Quantico documentation,
the Government started reviewing the emails that it had received from Quantico. See
Attachment C. According to the Government, it started reviewing these emails ?in preparation
for the defense Article 13 motion.? Id. 4. The Article 13 motion, however, had been on the case
calendar since this case was referred. The established deadline for the Defense to ?le the Article
13 motion was 27 July 2012. Additionally, the Defense had already advised the Government
that the Article 13 motion would be a very and involved motion, totaling over 100 pages.
In fact, the case calendar had accommodated the Govemment?s request for an additional week to
respond to the motion due to the anticipated length of the motion.

8. Once the Government elected to review the Quantico documentation, it reviewed a total of
1,374 emails on 25 and 26 July 2012. 1d,, see also, Attachment F. On 26 July 2012, the
Government selected 84 emails that it believed were ?obviously material to the preparation of the
defense? and produced them to the Defense. See Attachment D.

9. On 27 July 2012, the Defense noti?ed the Court that MAJ Fein had sent, at 21 15 on 26 July
2012, 84 separate emails which depicted high level discussions at Quantico concerning PFC
Manning?s custody status. The Court held an RCM 802 conference on 27 July 2012 to discuss
the need for a continuance in the consideration of the Article 13 motion.

10. As a result of the Govemment?s late discovery, the Defense requested a continuance of the
proceedings in order to review and incorporate information from the 84 emails into its Article 13
submissions; to interview (and re-interview) witnesses based on information contained therein;
and to ?le a supplemental Article 13 witness list. On 1 August 2012, the Court granted the
Defense?S request.



23169

ARGUMENT

11. The emails from Quantico are in the possession, custody, and control of the military and fall
within RCM 701(a)(2). While the Government has turned over a small fraction of this material,
84 emails, it has failed to turn over any of the remaining 1,290 emails which are ?regarding the
confinement of PFC Manning? and were turned over by Quantico in response to MAJ Fein?s
?prudential search and preservation? request. See Attachments A and B.

12. RCM 701(a)(2)(A) provides that, after service of charges, upon request of the Defense, the
Government shall permit the Defense to inspect:

Any books, papers, documents, photographs, tangible objects, buildings, or
places, or copies of portions thereof, which are within the possession, custody,
or control of military authorities, and which are material to the preparation of
the defense or are intended for use by the trial counsel as evidence in the
prosecution case-in-chief at trial, or were obtained from or belong to the
accused.

(emphasis supplied).

13. The Government has previously maintained that if an organization is subject to a military
command, then this factor controls the determination of whether materials are within the
possession, custody, or control of military authorities. See Appellate Exhibit XLIX. The Court
has held that ?the defense is entitled to disclosure of matters known to the trial counsel or in the
possession of military authorities.? See Appellate Exhibit CXLVII, p. 4. Quantico is subject to a
military command. Accordingly, the Government has an obligation to turn over documents that
are material to the preparation of the defense.

14. As the Defense has argued before, the case law reaffirms that ?material? under RCM
701(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 military judge said that he examined the
records and AE contained ?everything . . . [he] thought was even remotely
potentially helpful to the defense." That would be a fair trial standard, but our
examination finds a great deal more that should have been disclosed as ?material
to the preparation of the defense.? We caution trial judges who review such
bodies of evidence in camera to do so with an and mind-set of a defense
counsel at the beginning of case preparation. That is, not solely with a view to the
presentation of evidence at trial, but to actually preparing to defend a client, so
that the mandate of Article 46, UCMJ, is 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 Govemment?s obligation to disclose under R.C.M.

23170

added); United States v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008)
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 strategy?).

15. On 8 December 2010, the Defense requested ?[a]ny and all documents or observation notes
by employees of the Quantico con?nement facility relating to PFC Bradley Manning.? See
Attachment E. In response to the Defense?s request, ?the prosecution requested Quantico
preserve all documentation and their emails.? Id.

16. In spite of receiving the 1,3 74 emails in response to its preservation request, the Government
elected to permit these emails to collect dust in one of its ?le cabinets until two days before the
Defense?s Article 13 motion was due. In defending its conduct, the Government will likely try to
assert that it did not believe that an emails involving the Brig OIC and Brig personnel, or emails
concerning PFC Manning?s con?nement status were ?documents or observations notes by
employees of the Quantico con?nement facility? within the meaning of the Defense?s discovery
request. The Government will likely try to convince the Court that when it was reviewing the
emails for Giglio and Jencks under RCM 914, it came across information that was obviously
material to the preparation of the Defense and then turned the information over as soon as it was
aware of its existence. Such a position is untenable. These emails are clearly ?documents by
employees of Quantico con?nement facility relating to PFC Manning? and should have been
produced a long time ago pursuant to the Defense?s discovery request. Indeed, the Government
itself recognizes that these documents are discoverable under RCM 701(a)(2) as it indicates that
these emails are ?obviously material to the preparation of the defense.?

17. The Government was clearly aware of the fact that the Defense believed PFC Manning?s
con?nement conditions were unnecessarily onerous. PFC Manning had repeatedly requested to
be removed from MAX and P01. Additionally, the Defense made numerous requests of the
United States Army Staff Judge Advocate?s Of?ce for the Military District of Washington to
assist in removing PFC Manning from MAX and P01. In the fall of 201 0, Mr. Coombs and MAJ
Fein had several telephone conversations about the onerous conditions of PFC Manning?s
con?nement. MAJ ein assured Mr. Coombs that he was looking into the issue and would view
it as one of his highest priorities. See Defense Article 13 Motion, p. 47. PFC Manning was
never taken off of MAX or POI status. And it is clear that MAJ Fein and the Government did
not advocate for the rights of PFC Manning during this period despite repeated protestations
from the Defense that PFC Manning was being subjected to illegal pretrial punishment.

18. Despite being aware of the impending Article 13 motion, the Government inexplicably
chose to wait until two days before the ?ling of the Defense?s Article 13 motion before
reviewing documents that it had been holding for close to a year. This conduct is either yet
another example of that lack of due diligence on the Government's part, or a conscious decision
by the Government to gain a tactical advantage in the Article 13 motion.

23171

19. The requested emails are clearly material to the preparation of the Defense. Their volume
alone proves the extent of involvement by individuals outside of the Quantico Brig in the
custody status and classi?cation of PFC Manning. This undeniable fact clearly supports the
Defense?s argument that the decision to keep PFC Manning in MAX and POI for over nine
months was not based upon a legitimate non-punitive basis. As such, all 1,374 emails are
material to the preparation of the defense.

20. Moreover, it de?es logic to believe that there are nearly 1,300 emails out there dealing with
PFC Manning?s con?nement that are not somehow relevant and helpful to the preparation of the
defense. With the exception (perhaps) of purely logistical issues,? it would seem that any email
referencing PFC Manning?s con?nement is per se material to the preparation of the defense?

21. One additional note: the Government has indicated that it has produced emails that are
?obviously? material to the preparation of the Defense. This is not the appropriate standard. The
Government must turn over all documents which are material to the preparation of the Defense
as in relevant and helpful. The Defense believes, based on the sheer volume of emails not
produced, that the Government has not done so.

22. The Government has had anywhere from 7 months to over a year to review the 1,374 emails
it received from Quantico. The Defense has not had equal access to this same information, or the
ability to adequately factor this information into the Defense?s Article 13 motion. The requested
information is material to the preparation of the defense, and should be turned over immediately.
To permit the Government to hold onto the remaining 1,290 emails will only reward its lack of
due diligence, and result in the Defense being unable to demonstrate the full extent of the Article
13 violation.

CONCLUSION

23. Under R.C.M. 701(a)(2), the Court should conclude that the remaining 1,290 emails being
held by the Government from Quantico are within the ?possession, custody, or control? of the
Government and are material to the preparation of the Defense. The Court should compel the
Government to produce these emails immediately to the Defense in order to avoid any additional
requirement for a continuance of the Article 13 motion.

Respectfully submitted,
DAVID EDWARD COOMBS
Civilian Defense Counsel

For instance, emails concerning PFC Manning?s movement.

2 The Government has proved that it is not adept at determining what is relevant or material to the preparation of the
Defense. The Court should recall that the Government did not believe damage assessments were relevant. Further,
the Government did not believe that the FBI investigation pertaining to PFC Manning was relevant. These examples
show that the Govemment?s incredibly narrow view of what is relevant is not in accord with what is actually
relevant.



ATTACHMENT A



23173

FOR

DEPARTMENT OF THE ARMY

LI.S ARMY MILITARY DISTRICT OF WASHINGTON
210 A STREET
FORT LESL FY DC 203196013

HEPLV YO
0?

ZS .-\prtI 2151 I

FOR ('01 Dantci ('%10iLc, (hrpf;


I3rud'tc_\ F.

I. it?. Ihc Ituu-h_\ 41 mt?-
ttritl rcquctst tn .\Iarit1c Hut. the
that your tn um
held by 3.0m or Manning. the
and of for
irtftumalim?. at tjuanttw

2 Ihts is deS1_m-at to allmx th-: pmseC?.ttot> tn Iotalttx
yt-us. h:g;tI Iv; p.-twiticd in
to requested. Ihc such in
order to this provide the requested that ccvtatmilcd as
should bc tor anticipate trtakitzg Itl'.llrC as
the need ;1t?.tI the trt::l. it'thc IS rcI'ct?t'cd

3. ahovc. tho? that ,"tr:t uh
tn or not
int'urn1;ttitm is take tu IHJICIILIIS I0
PFC {min an) mutznc tlum .uc unsutu curtain
rttutcrials should hc please UT or. amt?.
I~'ailurc' to rct;-rm an)" pertinent (it tcsult in
(?railed an It)? the
for and caie Ian?.

4. The puntt of for this ts

3
.1

I

I

I

23174

ATTACHMENT

23175

UNITED STATES MARINE CORPS
OFFICE OF THE STAFF JUDGE ADVOCATE
3250 CATLIN AVENUE
MARINE CORPS BASE
QUANTICO, VIRGINIA 22134
IN REPLY REFER TO:

5800
B052
20 Dec 11
From:
To:

S t a f f Judge Advocate
U.S Army T r i a l Counsel

Sub]:

DISCOVERY OF ELECTRONIC AND HARD COPY FILES ICO PRIVATE FIRST
CLASS BRADLEY MANNING U.S. ARMY

1. Pursuant t o t r i a l counsel request, a l l r e l e v a n t e l e c t r o n i c
correspondence, e l e c t r o n i c f i l e s and hard copy documentary evidence
regarding the confinement o f PFC Manning i n the possession o f Marine
Corps base Quantico o f f i c i a l have been provided. T r i a l counsel were
p e r m i t t e d t o view and copy a l l r e l e v a n t f i l e s maintained by the
Quantico P r e t r i a l Confinement F a c i l i t y .

CHRIS GRE3?
L t C o l , USMC

ATTACHMENT

23177

UNITFD STATES OK AMFKICA
Prosecution Rc&pimsc
(o Dcicn&e Discovery Kcquwt
Manning. Bradley E.
PFC, U.S. Army.
HHC, U S. Army Garrison,
Joini Base Myer-HenderKon Hal
Fort Mvcr, Virginia 22211

14 August 2012

The prosecution hereby responds to the Defense Discovery Request dated I .August 2012 us
follow'^:
1. The inemorandum/e-mail/dneument from tlie Govenunent (o \/laiine Corps Ba:(hereinafter "Quantico") requesting that they preaer\ e artd produce Jtxjunientb and information
pertaining to PF(7 Manning's continement.
RESPONSE: Un ^ March 2(H2, the pn'secution provided this document a^ part ofits
Response to Defense Motion to Compel Discovery See Enclosure 1 to .Appellate Exhibit fAF)
XVF
2. The names of the individuals who the Government sent the Quantico preservation request to
and the date which the Govemment made its request;
KFSPONSE: Un S March 2012, the prosecution provided this document as part ofits
Response lo Defense Motion to Compel Discovery. See id. This document w as sent through
LtCo] Christopher Greer. Staff Judge Advocate, Quantico lo Col Daniel Choike. Commander.
Quantico.
3. Ail documentation provided by these individuals in response to the Government's request, the
date this information was provided, and the individuals who provided the requested information.
RESPONSE:
a. In August 2011, the prosecution began receiving documentation responsive to its
preservation request and continued to work witli Quantico to identify additional information. ()n
20 December 2011. LtCol Greer, confirmed tfiat "all rclevanl electronic correspondence,
electronic files and hard copy documentary evidence regarding the ctmfincmcni of [the accused]
in the possession of [Quanticoj official have been provided." Fnclosure 2 to .\R XVI. On 8
March 2012, the prosecution provided the defense LtCol Greer's statement as part ofits
Response (o Defense Motion to Compel Discovery. See iif
b. In August 2011. the prosecution started producing information it received from Quantico
in response to the prosecution's prcxerx ation order, and by 6 December 2011, tlie prosecution

23178

produced lo the defense all documentation, except two documents.' On 25 July 2012, and in
preparation for the defense Article 13 motion, the United States started reviewing emails it
received f n m Quantico. pursuant to the prescn ation request, for potential impeachment
evidence or RCM 914/Jencks material. The United Slates identified eighly-fiiur emails that were
obviously material to the preparation ofthe defense, because they fell into these four catcgoncs:
(1) statements by Brig officials describing their classification decisions, including the factors
weighed; (2) statements discussing chain ofcommand directives/orders regarding tlie accused's
confinement; (i^) statements describing the conditions of tlie accused's confinement, including
descriptions ofthe accused; or (4) pursuant to the C ourt's prior Ruling, statements involving
investigation, damage assessment, or mitigation measures. See AE CXLVIL ITie United States
produced dtese emails on 2() July 2012. The defense has failed to pmvide an iulequate basis for
production ofthe remaining emails. The defense is invited to renew its request with more
specificity and an adequate basis for its request.
4. Any other e-mails or documentation that the Govemment is aware ofand has not previously
provided to the Defense dealing w ilh PFC Manning's confinement conditions while at Quantico.
RESPONSE: .Absent what is listed above in response to paragraph 3. beltAv in paragraph 5.
and prosecution work product, the prosecution is not aware ofany other e-mails or
documentation dealing w ith the accused's confinement conditions while at Quantico.
5. The prosecution contacted, or attempted to contact, the below individuals fiir any e-mails or
documentation relating to the accused or the accused's confinement conditions. The prosecution
responds to the defense's request as fiillows:
a. LtGen George J. Flynn. LtGen Flynn is unaware ofany emails or documentation relateii
to tlie accused the accused's confinement eoixlitions. LtGen Flynn is .searching any retained
records and the pro.secution will notify the defense i f any such material is found.
b. Col Christopher Miner. Co] Miner is currently deployed to Afglianistan and is also on
R&R leave. The prosecution bnefly spoke with Col Miner who stated he will re\'iew his files
when he returns lo Afghanistan. The prosecution will notify the defense i f any such material is
found.
c. Col Royal Mortenson. C ol Mortenson does not liave any emails or documentation related
to the accused or the accused's confinement conditions.
d. COL Carl R. Coffman Jr. COL Coffman docs not have any enmils or documentation
related to the accused or the accused's confinement conditions. Outside what has itlready been
produced or provided to the defense, the prosecution w ill disclose any additional memoranda

' #ri 13-14 .\ugu.4l 2012, the prosecution reviewed its daialM.se and identified iv-o documents thai were not
previously produced to the defetise. The first dccunietif (BATES 00?7667S-()057^i684> us a .seven-page
document which contaitis information previously produce ' to the dcfruse: howevei tlie oovet memorandum and
public affairs pages were not produced. The second docu lennB ATESrf . 00.506676 purchase request for a wireless telephone headset, purchas :d lor the accu.sed\ use

23179

signedbvtheCOLCoffmanrelatedto the acc^sed^s pretrial ct^nfinemeot no later than L^ August
2012
e. Col Daniel J Choline. Col Chorine does not ha^e any emails or documentation related to
the accused or the accused's confinement conditions, in addition to the w hat he pto^ ided LtCol
Greerpnrsuanf to the prosecution's preserv ation request
f ColMarLM l^au.^lanch Col l^au^lartch does not ha^e any emails or doeumentarit^n
related to the accused or the accuse^l's confinement conditions Pursuant fo the prosecution's
preservation requ^^t^ Col l^au^larich provided all emails or documentation to LfCol Greer.
g. CDRllan l^tii CDR 6uidt^s not have any emails or doeumentation related lo the
accused or the acc^ised s confinement conditions. According to CDR 6ui. any notes would have
been annotated in the aceuscd^s medical records^ which have already been produced to the
defi^nse
h C.APTMar^ l^cilL C.APT^eill docs not have ^my emails or documentation related lo the
accused or the accused's confinement conditions. Pursuant to the prosccutio^^^ preservation
request. CAPT ^eill pro^. ided all emails or documentation to LlCol Greer
i LtCol Christopher M. Greer. LtCol Greer does not ha^^e any emails or documentation
related to the accused or the accused's confinement conditions Pursuant tothe prosecution's
preservation request. LtCol Greer provided all emails or documentation to the prosecution.
^. LtCol Amy R Fbit^ LtCol Ebil^ is eunenlly assigned OCO^USat^d is currently on
Tempoirary Duly w ithout means of communication. The prosecution has been unable to
eorrespomd with LlCol Ebit^ and w ill notif y the defense i f any such material is fi^und
l^ CPTJohnHaberland CPT Ifaberland was a member ofthe prosecution team until he wa^
designated as the legal subject matter e^pei^ fi^re.^temal public affairs in Augu^^t 2011. Any
emails prior to that time are worl^ products including his emails conceming Quantico Since
then. CPT Ifaberland^s role has beei^ limited society to public relation^^ not the pn^seculion of the
accused
L C^^O^.Abel Galaviz C^^O^GaiaviT^ does ha^e documentation, including his oiwnrepc^n^
emails, status reports, and notificatio^ns
m C^^04 James T .A^erharr C ^ 0 4 Averhart doe^ not have any emails or documentation
related to the accused or the accused's eonfinemei^t conditions Pursuant tothe prosecution's
preservationrequest.C^'04 Av erhart prov ided all emails or documentation to LtCo^l Greer
n. C^^02 Denize Barnes t^^^^^02 frames doe^ not ha^e any emails or documentation related
totheaeensedortheaeeused'sconfinemenf conditions, in addition tothe what she provided
LfColGreerpursuanf to the prosecution's preservabon request

23180

o. MSgt Brian R. Papakie. MSgt Papakie does not have any emails or doeumcntaiinn related
to die accused or the accused's confinemait conditions Pursuant to the prosecution's
preservation request. MSgt Papakie provided all emails or documenlaiion lo LlCol Greer
p. MSgt Craig M. Blenis. MSgt Blenis does not have any emails or documentation related to
the accused or the accused's confinement conditions. Pursuant lo the prosecution's preservation
request, MSgt Blenis provided all emails or documentation to LtCol Greer.
q. GySgt William R. Fuller. GySgt Fuller docs not have any emails or documenlaiion
related tn the accused or the accused's confinement conditions. Pursuant to Ihe prosecutiom's
preservation request. GySgt Fuller provided all emails or documentation to LtCol Greer.
6. The prosecution understands its continuing obligation to produce material under Gi^ljo and
Rule for Courts-Martial (RCM) 914. See Gielio v. United Slates. 405 U.S. 150(1972); see also
RCM 914. Once the prosecution publishes its Article 13 witness list, it will immediately start the
process of conducting Giiilio and Jeneks searches.

J. HCXTI R WIIYTE
CPTJA
Assistant Trial Counsel
I certify- that 1 served or caused to be served a true copy ofthe above om Mr. Da\'id Coombs.
Civilian Defense Coun.sel via electronic mail, on 14 August 2012.

J.MUiyj&R\VHYTE
CPTJA
Assistant 1 rial Counsel

23181

ATTACHMENT

David Coombs

From:
Sent:
To:
Cc:

Subject:

David,

23182

Fein, Ashden MAJ USARMY MDW (us)

Thursday, July 26. 2012 7:49 PM

David Coombs

'Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
'Morrow JoDean, CPT USA Overgaard, Angel CPT USARMY
Whyte, Jeffrey CPT USARMY ?von Elten, Alexander S. CPT USA JFHQ-NCR
Ford, Arthur Jr CW2 USARMY (US)

Article 13 Emails

In preparation for the upcoming Article 13 motion, the prosecution began reviewing emails yesterday from members of
the Quantico brig staff and the chain of command. The prosecution found some emails that are obviously material to
the preparation of the defense for Article 13 purposes. In an effort to get these emails to you as soon as possible, we
intend to produce them tomorrow and send them to you via email so that you have a copy immediately. We will also
produce them according to our normal process. We estimate there are approximately 60 emails.

V/r
Ashden

ATTACHMENT

23184

David Coombs

From: Fein, Ashden MAJ USARMY MDW (us)

Sent: Friday, July 27, 2012 8:22 AM
To: Lind, Denise COL USARMY (US)
Cc: David Coombs; ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT

USARMY ?Morrow Ill, JoDean. CPT USA Overgaard, Angel
CPT USARMY Whyte, Hunter CPT USARMY ?yon Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY (US)

Subject: RE: Article 13 Emails

Ma'am,
Below is the government response to the below email from the defense;

1. On 8 December 2010, the defense requested "[a]ny and all documents or observation notes by employees of the Quantico
confinement facility relating to PFC Bradley Manning." The United States produced all documentation from the Quantico Brig
either as we received it or at the end of the accused's pretrial confinement at Quantico. In an effort to preserve all records
involving the accused, the prosecution requested Quantico preserve all documentation and their emails. The purpose of this
preservation request was to ensure the accused's right to a fair trial by preserving any emails for future litigation concerning
the discoverability of the emails and/or for the prosecution to conduct a Giglio and Jencks (RCM 914) check of the emails. On
Wednesday, the prosecution started reviewing the emails for potential impeachment evidence or Jencks material, and during
that review found 84 emails which we deemed obviously material to the preparation of the defense for Article13

purposes. Within 24 hours, the United States noti?ed the defense and sent the emails last night.

2. The United States objects to the defense?s characterization of the emails showing a conspiracy, rather the emails show the
possible extent, if any, of USMC chain of command's involvement, in the accused's pretrial confinement.

3. This motions hearing is not scheduled until the end of August. Over the past few months, the defense has been preparing
its over 100 page motion and the government has a reply due on 17 August 2012. Understanding Mr. Coombs will be out of
the office from 27 July to 9 August, the United States still sees no reason why the defense will not have adequate time to
prepare its Article 13 motion, and especially since this the majority of these emails appear to only bolster the defenses

current argument, as proffered in the Article 13 witness list litigation. Additionally, the military defense counsel can assist Mr.

Coombs with interviewing other potential witnesses, if the defense chooses to go down that path.

v/r
MAJ Fein

-??-Original

From: David Coombs

Sent: Friday, July 27, 2012 12:54 AM

To: Lind, Denise COL USARMY (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY ?Morrow JoDean, CPT USA JFHQ-
Overgaard, Angel CPT USARMY Whyte, Hunter CPT USARMY ?von Elten, Alexander S. CPT USA
Ford, Arthur 0 Jr CW2 USARMY Fein, Ashden MAJ USARMY MDW (US)

Subject: RE: Article 13 Emails

Importance: High

Ma'am,

Please see the email below. MAJ Fein lust notified the Defense of the
existence of 60 emails that the Government determined were material to the



ATTACHMENT



23186

David Coombs

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Tuesday, August 14, 2012 5:30 PM

To: David Coombs

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY

Morrow, JoDean (Joe) Ill CPT USARMY USAMDW Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY (US): von Elten, Alexander (Alec) CPT
USARMY Ford, Arthur Jr CW2 USARMY (US)

Subject: RE: Discovery Response, 1 Aug 12

David,
We received a total of 1374 emails, and after reviewing them, produced 84, which leaves 1290 remaining.

v/
Ashden

Message-?--?

From: David Coombs

Sent: Tuesday, August 14, 2012 5:15 PM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY Morrow, JoDean (Joe) Ill CPT
USARMY USAMDW Overgaard, Angel CPT USARMY Hunter CPT USARMY von Elten,
Alexander (Alec) CPT USARMY Ford, Arthur Jr CW2 USARMY (US)

Subject: RE: Discovery Response, 1 Aug 12

Ashden,

Before I alert the Court to the need for a motion to compel, can you tell me how many other emails you have in addition
to the 84 that you provided to the Defense?

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



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

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



23187

David Coombs

From: Overgaard, Angel CPT USARMY (US)

Sent: Sunday, July 29, 2012 2:21 PM

To: David Coombs

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY

?Morrow JoDean, CPT USA Fein, Ashden MAJ USARMY MDW
Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT USA JFHQ-NCR
Ford, Arthur Jr CW2 USARMY Morrow, JoDean (Joe) CPT
USARMY USAMDW von Elten, Alexander (Alec) CPT USARMY (US)

Subject: RE: Quantico Emails (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

David,

MAJ Fein used the phrase "obviously material to the defense" because that is what is required by the 22 June 2012
Court Order. That being said, the prosecution disclosed the emails that were "material to the preparation of the
defense."

VR

ANGEL M. OVERGAARD
CPT, JA

Trial Counsel, MDW



From: David Coombs

Sent: Friday, July 27, 2012 8:46 PM

To: Overgaard, Angel CPT USARMY (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY ?Morrow Ill, JoDean, CPT USA JFHQ-
Fein, Ashden MAJ USARMY MDW whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY (US)

Subject: Quantico Emails

Angel,

with regards to the Quantico emails, MAJ Fein used the phrase "obviously material to the defense." I wanted to make
sure that the Government did not have any emails in its possession that were "material to the preparation of the
defense" as opposed to "obviously material to the preparation of the defense."

Best,
David

David E. Coombs, Esq.

Law Of?ce of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156



Local: (508)689-4616

Fax: (508) 689-9282



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

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

Classification: UNCLASSIFIED
Caveats: NONE

23189

Eavid Coombs

From: Morrow, JoDean (Joe) CPT USARMY USAMDW (US)
Sent: Tuesday, July 31, 2012 2:43 PM
To: David Coombs; Overgaard, Angel CPT USARMY Overgaard, Angel CPT
USARMY (US)
Cc: 'Hurley, Thomas MAJ OSD OMC Defense?; Tooman, JoshuaJ CPT USARMY

?Morrow JoDean, CPT USA Fein, Ashden MAJ USARMY
MDW Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT USA JFHQ-
Ford, Arthur Jr CW2 USARMY von Elten, Alexander (Alec) CPT
USARMY 'Hurley, Thomas MAJ OSD OMC Defense?; Tooman, JoshuaJ CPT
USARMY ?Morrow JoDean, CPT Fein, Ashden MAJ
USARMY MDW Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY von Elten, Alexander
(Alec) CPT USARMY (US)
Subject: RE: Update (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

David,

Filing dates - Angel responded yesterday, but we've been experiencing some email difficulties. with respect to the
speedy trial ?lings, we have no issues with your counter-offer. Motion due on 26 September; Response due on 16
October; Reply due on 22 October.

Emails - We disclosed all the emails from Quantico in our possession that are material to the preparation of the defense.
we made a generalized request for Quantico to gather and preserve documents and information pertaining to PFC BM's
confinement. They responded by providing documents and information pertaining to his confinement, and included
some emails.

Meeting - We are already working on the meeting request.

CPT Joe Morrow
Trial Counsel
U.S. Army Military District of Washington





From: David Coombs

Sent: Tuesday, July 31, 2012 11:56 AM

To: Overgaard, Angel CPT USARMY Overgaard, Angel CPT USARMY (US)

Cc: 'Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY ?Morrow JoDean, CPT USA
Fein, Ashden MAJ USARMY MDW Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur 0 Jr CW2 USARMY Morrow, JoDean (Joe) Ill CPT USARMY USAMDW
von Elten, Alexander (Alec) CPT USARMY 'Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT
USARMY ?Morrow Ill, JoDean, CPT USA Fein, Ashden MAJ USARMY MDW Whyte,

1

23190
Hunter CPT USARMY 'von Elten, Alexander S. CPT USA Ford, Arthur Jr CW2 USARMY
Morrow, JoDean (Joe) Ill CPT USARMY USAMDW von Elten, Alexander (Alec) CPT USARMY (US)

Subject: Update (UNCLASSIFIED)

Angel,

Can you please provide me with an update on the following:

a) The proposed dates for the Speedy Trial motion; and

b) The Government's access to other emails from the listed individuals (1) LTG George 2) Col. Daniel Choike; 3)
Col. Robert Oltman;

4) COL Carl Coffman; and 5) LtCol. Christopher Greer.

Finally, could you please arrange for PFC Manning to be brought to Fort Meade TDS at 1330 on 27 August 2012? Thank
you.

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




23191
Notice: This transmission, including attachments, may contain confidential attorney-client
information and is intended for the person(s) or company named. If you are not the intended recipient, please notify
the sender and delete all copies. Unauthorized disclosure, copying or use of this information may be unlawful and is


Classification: UNCLASSIFIED
Caveats: NONE



23192

David Coombs

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Tuesday, August 14, 2012 5:30 PM

To: David Coombs

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY

Morrow, JoDean (Joe) CPT USARMY USAM DW Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY von Elten, Alexander (Alec) CPT
USARMY Ford, Arthur Jr CW2 USARMY (US)

Subject: RE: Discovery Response, 1 Aug 12

David,
We received a total of 1374 emails, and after reviewing them, produced 84, which leaves 1290 remaining.

v/
Ashden



From: David Coombs

Sent: Tuesday, August 14, 2012 5:15 PM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY Morrow, JoDean (Joe) Ill CPT
USARMY USAMDW Overgaard, Angel CPT USARMY Whyte, Hunter CPT USARMY von Elten,
Alexander (Alec) CPT USARMY Ford, Arthur Jr CW2 USARMY (US)

Subject: RE: Discovery Response, 1 Aug 12

Ashden,

Before I alert the Court to the need for a motion to compel, can you tell me how many other emails you have in addition
to the 84 that you provided to the Defense?

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508)689-4616

Fax: (508)689-9282



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

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

23193

UNITED STATES OF AMERICA
Prosecution Response

V.

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

to Defense Motion to
Compel Discovery #3
23 August 2012
RELIEF SOUGHT

The United States respectfully requests the Court deny, in part, the Defense Motion to
Compel Discovery #3 (Defense Motion) because the United States will produce all emails of
witnesses of both parties and all emails required under Brady v. Maryland, 373 U.S. 83 (1963),
Giglio V. United States, 405 U.S. 150 (1972), the Jencks Act, 18 U.S.C. § 3500, Rule for CourtsMartial (RCM) 701(a)(2), RCM 701(a)(6), and RCM 914.
BURDEN OF PERSUASION AND BURDEN OF PROOF
As the moving party, the Defense bears the burden of persuasion and must prove any
factual issues necessary to decide this motion by a preponderance of the evidence. See Manual
for Courts-Martial (MCM), United States, RCM 905(c) (2012).
FACTS
The United States stipulates to Defense Motion

4-6.

The United States stipulates to Defense Motion % 7. The United States and Defense have
proposed multiple filing dates, to include 15 June 2012, 27 July 2012, and 7 September 2012 for
the Defense Motion to Dismiss for Unlawfiil Pretrial Punishment (Defense Article 13 Motion).
See Appellate Exhibit I, Appellate Exhibit XX, Appellate Exhibit XLIV, Appellate Exhibit XLV,
Appellate Exhibit CXIII
The United States stipulates to Defense Motion ^ 8.
The United States stipulates to Defense Motion ^ 9; however, the United States disputes
the Defense description of the contents of the emails.
The United States stipulates that the Defense requested a continuance of the proceedings
and that the Court granted the Defense's request on 1 August 2012.
On 8 December 2010, the Defense submitted a discovery request, requesting "[a]ny and
all documents or observation notes by employees of the Quantico confinement facility relating to
[the accused]." Enclosure 1 ^ 2(m). In the same discovery request, the Defense requested '''[ajny
report, e-mail or document discussing the need for the State Department to disconnect access to
its files from the government's classified network." Id. % 2(b) (emphasis added). The discovery

APPELLAT;-

iixHrnrM^

PAGE REFERENCED:
^
PAGE OF
PAGES^

23194

request also requested,^^[a]ttye^matl, report, assessment, directive, or discussion by Presid
Obama to the Department ofDefense, Department ofState or Department ofJustice"B^.^2(f)
(emphasis added). The discovery request further requested,^^any and all memorartdums, e-mails,
or other references by Congressmen, Senators, or govemment officials conceming the
disposition of this case or the tteed to punish[theaccusedj."B^.^2(k)(emphasis added). The
discovery request requested,^^[a]ny and all documentation,emails, or reports given to the
Summary CourtMartial Convening Authority,theGetteralCourt-Martial Convening Authority,
or the Stafl^Judge Advocate cor^ceming the disposition of[theaccused'sjcase or itature ofthe
charges or possible charges agaittst[theaccusedj.".^^.^2(l)(emphasis added).
OttlAugust 2012,the Defettsefiledadiscovery request, requesting.^^^ajll
documeritation provided...in respottse to the Govemment's^pmdetttial search requestj,"and
^^atty other e-mails or documentation that the Govemment is aware of...dealing with^the
accused'sjconfinementcottditiorts while at Quantico." ^^^Enclosure2^6(c)-(d).
Onl7August, the Defettse filed the Defense Motion, stating that ^^that the Defettse believed
[the accused's]confinement conditions were unnecessarily onerous." DefettseMotion^l7. The
Defense Motion also stated that the accused ^^had repeatedly requested to be removed from
[maximum custody] and [prevention ofinjurystatusj."
The Defense stated that the emails
demonstrate ^^the extent ofinvolvement by individuals outside ofthe Quantico Brig in the
custody status and classification of[the accused]." Defense Motion^l9.
The Uttited States v^ill produce to the Defense the emails ofthe parties'witnesses and
emails material to the preparation ofthe defense on or before 28 August 2012.
WITNESSES/EVIDENCE
The United States does not request any witnesses be produced ft^r this response. The
United States respectfully requests that the Court consider the listed enclosures and Appellate
Exhibits.
EEGAEAUTFIORIT^ AND ARGUMENT
RCM 701(a)(2)requires the United States to permit the Defense to inspect documents
that are material to the preparation ofthe defense that are within the possession, custody,or
control ofmilitary authorities in response toadefense request. RCM 701(a)(2). The United
States does not have to ^^search for information material to the preparation ofthe defense without
aspecific discovery request." Appellate Exhibit CXEVIIat5. Instead,adefense request
^^specifying what must be produced" triggers the rule. AppellateExhibitCXEVIIat5;RCM
701(a) analysis, at A21 34(2012). The Defense request must provide notice with specificity of
the information it desires. i^^^^^^^^^^^^^^.^v..^.^^^^^^4 23M.J.12,22(C.M.A.1986)(citing
^^^^^^^^^^^.^v.B^^^^.^,427 U.S.97,106(1976)). Arequest for all information fails to provide
the United States with adequate notice. ^^^B^^^^.^,427U.S.atl06(deciding that an indefinite
request for all exculpatory information'^^really gives the prosecutor no better notice than if no
request is made"). Additionally,the United States must tum over inft^rmation to the Defense that

23195

is obviouslymaterial to the preparation ofthe defi^nse.
RCM701(a)analysis,atA21 34(2012)

Appellate Exhibit CXEVIIat5;

RCM 701(a)(2) is ^^grounded on the fundamental concept ofrelevance. ^^^^^^^^^^^.^v.
^^^^^^,69 M.J.104,107 (C.A.A.F.2010).Relevant emails that would assist the Defense in
formulatingastrategy are material to the preparation ofthe defense, ^^^^^^^^^^^^^^^.^v.l^^^,
66MJ 89,92 ( C A A F 2008)(citing^^^^^^^^^^^.^v,^^^^^^.^,59MJ 323,325 ( C A A F
2004)). Additionally,the Defense defines material to the preparation ofthe defense as ^^relevant
and helpful." Defense Motion^21(^^The Govemment must tum over all documents which are
material to the preparation ofthe Defense as in relevant and helpful.").
I.TFIE DEFENSE DID NOTTRIGGERRCM 701(A)(2) UNTIE1AUGUST2012
On 26 July 2012, the United States produced eighty-four emails that were obviously
material to the preparation ofthe defense withoutarequest from the Defense for emails from the
Brig. The Defense first requested emails from the Brig onlAugust 2012. ^^^Enclosure2^
6(d). The Defense contends that its8December2010discovery request for ^^^^[a]ny and all
documents or observation notes by employees ofthe Quantico confinement facility relating to
[the accused]" included email.
Defense Motion^l6;^^^.^^^Enclosurel^2(m). However,
the Defense onlyrequested^^documents or observation notes"fi^omthe Brig. The Defense itself
distinguished between documents and emails by requesting emails in four other separate requests
in the same document. ^^cEnclosurel^2(b);Enclosurel^2(f);Enclosurel^2(k);Enclosurel
^2(1). The Defense now avers that the United States should not have made the distinction the
Defense itselfmade in the Defense discovery request—the request the Defense now cites in
support ofits theory that it requested email from the Brig on8December 2010.
Defense
Motion^l6. Because the Defense distinguished between documents and emails within its own
request, its claim that it requested email beforel August 20121acks merit. Accordingly,
Defense first requested emails from the Brig o n l August 2012.
II THE DEFENSE DID NOTPROVIDENOTICE OF MATERIAEIT^UNTIE17AUGUST
2012
The Defense request o n l August 2012 provided the United States with no notice of
materiality because the Defense simply requested ^^any other e-mails" without evenascant
provision ofrelevance or materiality. However, the Defense providedabasisf^r determining
materiality in the Defense Motion onl7August2012by stating that ^^the extent ofinvolvement
by individuals outside ofthe Quantico Brig in the custody status and classification of[the
accused],"the conditions ofthe accused'sconfinement ^^were unnecessarily onerous,"and the
accused ^^repeatedlyrequested to be removed from [maximum custody] and [prevention ofin^ury
status]."
Based on tb^ stated standards and in preparation for the Article 39(a) d u r i n g l t o ^
October 2012, tbe United States ^ i l l produce ^^^emails ofwitnesses ofbotb parties and all
emails required under ^^^^^^^^^^^^B^^, 373 U^S^ ^3 (1963), ^^j^^^^^.^^^^^^^^^^^^,^(l^
U^S^ 1^0(1972), tbeJenclcs Act, l^U.S.C.^3^(l(l,RCM7(ll(a)(2),RCM7(ll(a)(6),and
RCM 91^^

23196

The emails the United States has not produced are related to: l)public affairs, to include
discussions ofmedia articles and preparing responses to media inquiries, including responses to
media reports by the New^ork Times and Frontline,2)protesters at Marine Corps Base
Quantico (MCBQ), to include discussionsofupcoming protests, the number of protestors, and
plans to respond to protests,3)discussions of operational impact on the Pretrial Confinement
Facility(the Brig) at MCBQ based on projected detainees, the Defense Base Realignment and
Closure Commission (BRAC), providing behavioral health support to detainees, to include the
accused,4)fimding ofbehavioral health professionals, to include discussions of the extent of
each Service'sfinancial obligations, 5) administrative coordination, to include ensuring
detainees, including the accused, had constant coverage ofbehavior health, ensuring the accused
had the proper uniform, discussing the accused's^^chasers,"6) discussions ofthe definition of
Brigregulations regarding visits and statements of changes the accused made to his visitation
list,7) editing draffs ofproposed documents, to include responses to media inquiries, 8)
discussion of visits of officials to the Brig unrelated to the accused, and 9)discussions of
complying with the Health Insurance Portability and Accountability Act (HIPAA).
The emails that were not produced are not helpful to the Defense'spreparation because
they pertain to matters unrelated to the conditions ofthe accused'sconfinement or matters not
related to the accused'scustody and classification. The Defense argues that the number of
emails indicates ^^the involvement by individuals outside ofthe Quantico Brig,"but the number
of emails only indicates the breadth ofissues to which the Brigresponded during the accused's
confinement for over eight months. The emails not produced are not relevant because they do
not describe the conditions of the accused'sconfinement, nor do the emails pertain to decisions
regarding the accused'sclassification or status. Moreover, the emails do not yield anyinsight
into the conditionsofthe accused'sconfinement nor the accused'sclassification or status.
Therefore, the emails not produced are not material to the preparation ofthe defense. The
defense alleges that orders were given to keep the accused inacertain status and custody but
there are no such orders. Seeing emails discussing responses to media inquiries or HIPAA
compliance grants no insight to the Defense and therefore is not material to its preparation.
CONCI^USION
Based on the above, the United States respectfully requests the Court deny,in part, the
Defense Motion.

ALEXANDER ^Ol^EETEN
CPT,JA
AssistantTrial Counsel
Enclosures
1. Defense Discovery Request dated8December 2010
2. Defense Discovery Request datedlAugust 2012
3. Fein Email,^^Govemment Notice to Court" dated 23 August 2012

23197

Icertifythatlserved or caused to be servedatrue copy ofthe aboveon Mr. David
Coombs, Civilian DefenseCounsel, viaelectronicmail,on23 August 2012.

ALEXANDER ^O^ ELTEN
CPT,JA
AssistantTrial Counsel

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



23198

Prosecution Response

to Defense Motion to
Compel Discovery

Enclosure 1

23 August 2012

23199

UNITED STATES

REQUEST

MANNING. Bradley PFC

Army.-

Headquarters and Headquarters Company. US.
Army Garrison. Joint Base Myer-Henderson Hall.
Fort Myer. VA 222ll

DATED: 8 December 2010



1. In accordance with the Rules for Courts-Martial and the Nlilitary Rules of tvidence.
Manual for United States. 2008. Article 40. Uniform Code of .\lilitary
Justice. and other applicable law. request for supplemental discovery is ltereby ntade for
the charged offenses iit the case ofllnited States v. Bradley E. Manning.

2. The defense requests that the government respond to each item listed in its 29 October
and 15 November 2010 discovery requests and the following additional discovery:

a) The names and contact information for all govemment investigators wlto have
participated or who are presently participating in the investigation of the case. previously
requested on 29 October and 15 November 2010. Specifically. contact information for
SA Hyung Kim front the Department of Defense and SA Richard Bowen front the Army
Computer Crimes Unit and an inventory oftlte items seized from the home of Mr. Paul
Francia at 60] Hazelwood Terrace. Rochester. .\ew York l-1609.

bl All forensic results and investigative reports by the Department of State regarding the
information obtained by Wikileaks as referenced by Assistant Secretary ofState for
Public Affairs P.J. Crowley. Additionally. any specific damage assessment by the
Department of State regarding the disclosures ofthe diplomatic cables by WikiLeaks.
Any assessment. report. mail. or document by Secretary ofState Hillary Rodham
Clinton regarding the disclosures ofdiplontatic cables by Wikileaks. Any report. e-mail.
or document discussing the need for the State Department to disconnect access to its files
from the govemmenfs classi?ed network.

c) All forensic results and investigative reports by the Department of Defense regarding
the information obtained by Wikileaks and the results of any ioint investigation with the
Federal Bureau of Investigation (FBI) as referenced by Secretary of Defense Robert
Gates. Additionally. an_v speci?c damage assessment by the Department of Defense
regarding the disclosure ofclassifted docuntents and videos. the subject oftltis case. by
Wiltileaks.

23200

Defense Discovery Request PFC Bradley E. Manning

d) Any and all documentation related to the Department ofJustice investigation into the
alleged leaks by WikiLeaks as referenced by Attorney General ofthe I 'nited States Eric
H. Holder.

c) Any and all documentation related to President Barack H. Obama's order for an
investigation and a government wide-review ofhow agencies safeguard sensitive
information. Additionally. any and all documents related to the steps the administration
is considering regarding these leaks and the nature ofthe criminal investigation underway
into how the documents were made public as referenced by Robert Gibbs. the White
House spokesman.

t) Any assessment given. or discussions concerning. the Wikileaks disclosures by any
member of the govemment to President Obama. Any e?mail. report. assessment.
directive. or discussion by President Obama to the Department of Defense. Department of
State or Department oflustice.

g) Any and all documents relating to the Government Task Force created to review the
various WikiLeaks releases for potentially damaging information prior to the actual
releases. This Task Force apparently had over 130 members reviewing the documents
that were either released or pending release to determine the possible harm to national
security.

h) The results of any investigation or review by Mr. Russell Travers who has been
appointed by President Obama to head an interagency committee assigned to assess the
damage caused WikiLeaks exposures and to organize efforts to tighten security measures
in government agencies.

i) Any and all documentation related to the Pentagoifs review on the policy and
technological shortfalls that led to the WikiI-eaks disclosures as referenced by Pentagon
spokesman Bryan Whitman.

j) Any and all documentation related to the Central Intelligence Agency (CIA)
investigation of Wikileaks announced by CIA Director Leon Panetta and any internal or
external memorandums addressing the investigation of Wikileaks. PFC Bradley Manning
or the nature ofthe Office of Security?s investigation into these matters.

k) Any and all documentation relating to the govemment?s position of taking a hard line
on unauthorized leaks of information. as demonstrated by the prosecutions ofa former
National Security Agency official. a Federal Bureau oflnvestigation linguist. and a State
Department contractor and referenced by CIA Director Leon Panetta. Additionally. any
and all memorandums. e-mails. or other references by Congressmen. Senators. or
government officials conceming the disposition ofthis case or the need to punish PFC
Bradley Manning.

23201

Defense Discovery Request PFC Bradley E. Manning

l) Any and all documentation. e-mails, or reports given to the Summary Court-Martial
Convening Authority, the General Court-Martial Convening Authority, or the Staff Judge
Advocate concerning the disposition of PFC Bradley Manning's case or the nature of the
charges or possible charges against PFC Manning. Speci?cally, any attempt to in?uence
the independent discretion-of anyone involved in the military justice process.

m) Any and all documents or observation notes by employees of the Quantico
confmement facility relating to PFC Bradley Manning.

11) The results of the 15-6 investigation into the govemment?s improper release of
classi?ed information to the defense. Whether the 15-6 investigating officer looked into
the following additional potential spillage:

i. The disc allegedly found in PFC Manning?s Room indicated the contents were

SECRET. A photo of the disk can be found at 000293. Was the title on the disk
classi?ed or not?

ii. The photos of the T-SCIF show a map in the background that was partially
exposed (000301 and 000302).

The snapshots of the computer screens in the T-SCIF were exposed. Was there
classi?ed information being viewed on the screen? (000305 and 000306).

iv. The snapshots of the computers had documentation on the table appear to show
classi?ed information. (000333, 000334, and 000335).

v. Was the investigating officer made aware of the govemment disclosure of the
original ?ve discs to the military defense counsel?

3. The defense requests that the government inform the defense counsel if it does not
intend to comply with any speci?c provision of this request.

4. It is understood that this is a continuing request.

5. A copy of this request was served on Trial Counsel by e-mail on 8 December 2010.

1
AVID EDWARD C0 ABS

Civilian Defense Counsel

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



23202

Prosecution Response

to Defense Motion to
Compel Discovery

Enclosure 2

23 August 2012

23203

UNITED STATES

DEFENSE DISCOVERY

V- REQUEST

MANNING, Bradley E., PFC

U.S. Anny,

Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221 I

DATED: I August 2012



1. In accordance with the Rules for Courts-Martial 70l(a)(2), 701 and the Military Rules
of Evidence, Manual for Courts-Martial, United States, 2008, Article 46, Uniform Code of
Military Justice, and other applicable law, request for discovery is hereby made for the charged
offenses in the case of United States v. Bradley E. Manning.

2. PFC Manning was held at Marine Corps Base Quantico from 29 July 20l0 to 20 April 20! l.
During this time, he was held in Maximum Custody (MAX) and under Prevention of Injury
(POI) watch.

3. On 8 December 20l0, the Defense made a discovery request for all documentation from
Quantico pertaining to PFC Manning. The Government provided extensive documentation
related to PFC Manning?s con?nement at Quantico in October of 20l I. The Defense believed
that this was the full extent of the infonnation the Government had from Quantico.

4. On 26 August 20I2, the Government produced 84 emails from various individuals. The
Government indicated that these emails were ?obviously? material to the preparation of the
defense for the Article I3 purposes. MAJ Fein indicated that the Government received these
emails from Quantico approximately 6 months ago. However, the Government did not begin
reviewing the emails until 25 July 2012.

5. On 3| August 20l2, CPT Joe Morrow, by e-mail, infonned the Defense that the Government
had ?made a generalized request for Quantico to gather and preserve documents and information
pertaining to PFC Manning?s confinement." CPT Morrow stated that ?they responded by

providing documents and information pertaining to his con?nement, and included some emails.?

6. The Defense requests that the Government provide the following discovery:
a) The memorandum/e-mail/document from the Government to Quantico requesting that
they preservation and produce documents and information pertaining to PFC Manning?s

con?nement;

b) The names of the individuals who the Government sent the Quantico preservation request
to and the date which the Govemment made its request;

23204

Defense Discovery Request PFC Bradley E. Manning

0)

d)

All documentation provided by these individuals in response to the Government?s
request, the date this information was provided, and the individuals who provided the
requested information; and

Any other e-mails or documentation that the (?iovemment is aware of and has not
previously provided to the Defense dealing with Manning?s confinement conditions
while at Quantico.

7. The Defense also requests any e-mails or documentation relating to PFC Manning or
Manning?s con?nement conditions from or to the following specifically listed individualsGeorgel. Commanding General, 3300 Russell
Road Building: 3300 Floor: 2 Room, Quarters I /Command Suite. Quantico, VA 22|34.

Col. Christopher Miner, StaffJudge Advocate, 3300
Russell Road Building 3300 Floor 2, Room 227, Quantico, VA 22l34

Col. Royal Mortenson, Chiefof Staff, 3300 Russell Road
Building: 3300 Floor: 2 Room: 224, Quantico, VA 22l34.

COL Carl R. Coffman . 205B Lee Avenue, Joint Base

Myer-Henderson Hall, Virginia 222l I.

Col. Daniel J. Choike, I, Base Commander, 3250 Catlin Ave.,
Building 3250, Floor 2, RoomCube Suite, Quantico, VA 22134.?

Col. Mark M. Kauzlaric Chiefof Staff, 3250 Catlin Ave.,
Building 3250, Floor B, Room 28, Quantico, VA 22134

CDR Han Bui,?l, Building IA Floor 2, Room 9, l\'orfolk, VA
235"

Capt. Mary Neill.

l.tCol. Christopher M. Greer, StaffJudge Advocate,
Building: l0l9, Floor: l, Room: SJA, Quantico, VA 22l34

l.tCol. Amy R. libitz, Executive Officer, 2043 Baranett Ave,
Quantico, VA 22|34 .

John Haberland, Regimental Judge Advocate,20l
Jackson Ave, Fort Myer, VA 22003.?

CWO5 Abel Galaviz . Building Pentagon, Floor 4, Room/Cube
4A324, Washington D.C., 20380-I775.

23205

Defense Discovery Request PFC Bradley F.. Manning

m) CWO4 James T. Averhart S-3 Officer, 2043 Baranett Ave,
Quantico, VA 22l34

P)

(I)



CWO2 Denise Barnes, Brig Executive Officer, Camp Hansen
Bldg: Floor I, Room I07, PFO, AP

Brian R. Papakic, Brig Supervisor, 3247 Elrod Ave
Building: 3247 Floor I, Room :10, Quantico, VA 22134-

(}ySgt Craig M. Blenis I, Sergeant Instructor, 2| 89 Elrod Ave
Building 5001, Floor 1, Room I, Quantico, VA 22134 and

William R. Fuller, 56|, Building 608, Floor, I
Room/Cube 2] I, FPO, AP. .

8. The Defense requests that the Government provide notice in writing as soon as possible if it
does not intend to comply with any speci?c provision ofthis request. The Defense will need
timely notice ofthe Government?s intent to not comply in order to immediately ?le a motion to
compel discovery. Timely notice by the Government will avoid the need for an additional delay
for the Article I3 motion.

9. It is understood that this is a continuing request.

I0. A copy ofthis request was served on Trial Counsel by e-mail on I August 2012.

DAVID EDWARD COOMBS
Civilian Defense Counsel

23206

UNITED STATESOF AMERICA

Prosecution Response
to Defense Motion to
Compel Discovery

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

Enelosure3
23 August 2012

23207

From:
To:

Fein. Ashden MAJ USARMY MDW fUS^
Lind. Denise R COL USARMY fUSl

Cc

David CoomliS; "Hurlev. Thomas F MAJ OSD OMC Defensp": Tooman. loshua J CPT USARMY fUSl; Morrow.
JoDean fJoe^ III CPT USARMY USAMDW fUS): Overgaard. Angel M CPT USARMY fUSk Whvte. J Hunter CPT
USARMY (US.); von Elten. Alexander S fAlecl CPT USARMY fUSk Ford. Arthur D Jr CW2 USARMY fUSI: Williams.
Patricia A CIV (US); Jefferson. Dashawn MSG USARMY aiSk Moore. Katrina R SFC USARMY (USI
Government Notice to Court
Thursday, August 23, 2012 11:25:41 AM
Jencks. msg
Classified Information Access.msq
High

Subject:
Date:
Attachments:
Importance:

Ma'am,
Good morning. The purpose of this email is to provide the Court notice and an update on two issues to
prevent any surprises or confusion during the upcoming hearing and to capture these two issues for the
record.
1. Jencks Disclosure. On 26 July 2012, the Court directed the United States to notify the defense by 3
August what type of statements the government intends to disclose to the defense lAW RCM 914 (see
email, 26 July 2012, 5:40pm). The Court directed the defense to file a motion by 17 August if it took
issue with the government's plan. On 3 August, the government provided the attached notice to the
defense and an email conversation ensued. The defense did not object to the government
interpretation of Jencks or its plan moving forward, nor did they file a motion on 17 August 2012.
Therefore, this issue should be resolved. As of today, the United States will move forward with its plan
to begin disclosing statements encompassed by RCM 914, starting with designated witnesses for the
Article 13 motion.
2. Defense Motion to Amend the Protective Order. On 17 August 2012, the defense requested leave of
the Court to use a computer that was not authorized under the Court's protective order and SIPRNET
for its filing. The Court instructed both parties that this issue would be addressed at the next Article
39(a) session and that both parties should confer to determine if there is a mutually agreeable solution
(see email, 17 August 2012, 4:23pm). The defense had not requested from the government to use that
computer or SIPRNET prior to its filing on Friday. Since Monday of this week, the prosecution has
attempted to coordinate with the defense and appropriate entities within the US Army to determine
capabilities and authorities. At this point, without the information we have requested from the defense
(enclosed on email and listed below), the prosecution will not be able to formulate a position on behalf
of the government, to include supporting the defense's request, supporting it in part, or objecting, if at
all. Without walking into the defense's office and examining their systems ourselves, the prosecution is
not in a position to understand their capabilities. Therefore, without this information and a reasonable
amount of time to work through the capabilities and approvals, the United States will be objecting to
the Court's consideration of this requested amendment at next week's hearing and requesting a
continuance to properly staff this request. Ultimately, we think the protective order issue is an issue
which the parties could mutually resolve without the Court's involvement, but we need more info from
defense to move forward.

v/r
MAJ Fein
Original Message
From: David Coombs [mailto:coombs(a)armycourtmartialdefense.com]
Sent: Wednesday, August 22, 2012 7:03 PM
To: Fein, Ashden MAJ USARMY MDW (US); 'Hurley, Thomas F MAJ OSD OMC Defense'; Tooman, Joshua
J CPT USARMY (US)
Cc: Morrow, JoDean (Joe) III CPT USARMY USAMDW (US); Overgaard, Angel M CPT USARMY (US);
Whyte, J Hunter CPT USARMY (US); von Elten, Alexander S (Alec) CPT USARMY (US); Ford, Arthur D Jr
CW2 USARMY (US)
Subject: RE: Outstanding Emails

23208

Ashden,
1. Please refer to the Court's email on 26 July 2012;
2. This issue is currently under advisement with the Court.
^st,
David
David E. Coombs, Esq.
I^aw Office of David E. Coombs
11 South Angell Street, ^317
Providence, Rl 02906
TollFree:18005^84156

l^ocal: (50^)6^9 4616
Fax: (50^) 6^9 9252
coombs^armycourtmartialdefense.com
www.armycourtmartialdefense.com
^^^ConfidentialityNotice:This transmission, including attachments, may
contain confidential attorney client information and is intended for the
person(s)or company named. Ifyou are notthe intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying
or use of this information may be unlawful and is prohibited.
Original Message
From: Fein, Ashden MAJ USARMY MDW (US)
Sent: Wednesday,August 22, 2012 6:52 PM
To: David Coombs;'Hurley, ThomasFMAJOSDOMC Defense'; Tooman, JoshuaJCPT USARMY (US)
Cc: Morrow, JoDean (Joe) III CPT USARMY USAMDW (US); Overgaard, AngelMCPT USARMY (US);
Whyte,JHunter CPT USARMY (US); von Elten, AlexanderS(Alec) CPT USARMY (US); Ford, ArthurDJr
CW2 USARMY (US)
Subject: Outstanding Emails
Importance: High
David, MAJ Hurley,andCPTTooman,
The United States sent the defense two separate emails yesterday which are attached. We have not
heard back from any defense counsel as of tonight.
1. Could you please respond to the defense's position on Jencks, so that we may notify the Court, and
properly respond to the defense motion to compel discovery 3, and start implementing our Jencks plan
before the end of the week7
2. Could you please respond to the questions about access to classified information so that we may
coordinate with H^DA and other organizations about the requirements, and determine the capabilities
and proper authorities^ We are trying to process this request as fast as possible so we can provide the
defense and Court an update next week.
Thank youl
v/r
Ashden



23209

UNITED STATES OF AMERICA
Defense Motion
v. to Amend Protective Order

MANNING, Bradley E., PFC

U.S. Army,
Headquarters an eadquarters Company, US. Army)

Army Garrison, Joint Base Myer-Henderson Hall)
Fort Myer, Virginia 22211 17 August 2012



RELIEF SOUGHT

The Defense in the above-captioned case respectfully requests that this Court amend its
16 March 2012 Protective Order for Classified Information. Specifically, the undersigned
defense counsel requests that (1) his office be identified as an approved location to store
SECRET information relevant to this case, (2) his office be identi?ed as an approved location to
work on (including discuss) SECRET infonnation relevant to this case, (3) the neighboring
appropriate facility be identified as a location to review and store information classi?ed at a
higher-than-SECRET level, and (4) the individual and collective equipment in his current office
be authorized to be used in furtherance of his representation of PFC Manning.

BURDEN OF PERSUASION AND BURDEN OF PROOF

The defense bears the burden of persuasion as the moving party. The burden of proof
is by a preponderance of the evidence. RCM 905(c).

FACTS
This case involves thousands of pages of classified information.

The undersigned defense counsel was detailed to this case in May 2012. He made his
?rst appearance before this Court in June. Then, he worked in a traditional office environment
on Fort Belvoir with limited access to classi?ed telecommunications or office equipment.

On 3 July, the undersigned, pursuant to a personnel action commenced in February,
started work at his new office at the Office of Chief Defense Counsel for the Military
Commissions. The undersigned currently works in an office in Arlington, Virginia. The
undersigned is told that, because of the security posture in and around the building, he can
openly store classified information in his actual office. The undersigned has the following
equipment at his desk: an unclassified phone, an unclassified laptop computer with a NIPRNET
connection, and a SECRET desktop computer with a SIPRNET connection. (The SIPRNET
provides the capability of a ?smil" email address through which SECRET emails can be sent
with SECRET documents attached.) The undersigned can, with some coordination, also make
classified copies, scan classified documents, hold meetings in a higher-than-SECRET facility,
store documents in a higher-than-SECRET facility, and make classified phone calls.





L-.
P555 0? PAGES

i

23210

LEGAL AUTHORITY

Protective Order for Classified Information, 16 March 2012

ARGUMENT

The Defense requests this Court re?examine paragraphs and of its 16 March
Protective Order to grant the relief requested. Here are the specific changes believed
appropriate:

a. The "Area of Review? paragraph should be changed to include the undersigned's current
office as well as the neighboring higher-than?SECRET facility. A change to this paragraph
would require modification of subparagraphs and

b. The restriction on copying classified documents (subparagraph should be changed to
allow the undersigned to print or copy classified discovery provided to him by the Government.

c. The admonishment to only use the three government computers for classified filing should be
changed to allow the undersigned to use his classified government desktop computer for
purposes described in subparagraph l(4) as well as the three classified laptop computers
already provided to the Defense.

There is disagreement between the parties as to the meaning of the Protective Order.
The Defense would request that this Court explicitly authorize the undersigned to do the
following.

a. Use his SIPRNET computer and connection to classified networks in furtherance of his lawful
preparation for this trial with no supervision.

b. Communicate with the Government as well as the Court (through the Court Security Officer)
about any procedural or substantive matter that should be discussed over a classified system.
This communication would include, but not be limited to, a request for information as to how to
access discovery provided to the Defense by the Government as well as filing classified
documents with the Court Security Officer and providing a copy of those documents to the
Government.

CONCLUSION

The Defense respectfully requests that this Court amend its 16 March 2012 Protective
Order for Classified Information. Specifically, the undersigned defense counsel requests that
(1) his office be identified as an approved location to store SECRET information relevant to this
case, (2) his office be identified as an approved location to work on (including discuss) SECRET
information relevant to this case, (3) the neighboring appropriate facility be identified as a
location to review and store information classified at a higher-than-SECRET level, and (4) the
individual and collective equipment in his current office be authorized to be used in furtherance

of his representation of PFC Manning.
9.

THOMAS F. HURLEY
MAJ, JA
Defense Counsel

23211



UNITED STATES OF AMERICA Prosecution Motion



v. for Preliminary Determination of
Admissibility of Evidence
Manning, Bradley E. (Computer-Generated Records)
PFC. U.S. Army.
HHC. U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 222Il

3 August 2012

(U) RELIEF SOUGHT

The prosecution in the above case respectfully requests that this Court admit into
evidence the following account information and logs in advance oftrialz Open Source Center
(OSC) log files for the accounts bmanning and bradass87; OSC user information screenshots for
the accounts bmanning and bradass87; Intelink logs showing activity for IP addresses
29.225.41.22 and 22.225.41.40; and the lntelink Passport account information for the account
bradley.e.manning. The prosecution seeks said relief to provide improved predictability and
efficiency to the proceedings.

(U) This motion also serves as notice to the defense that the government intends on offering
these documents as evidence under Military Rule of Evidence 902(l I).

(U)

burden of proofon any factual issue, the resolution of which is necessary to decide a
motion, shall be by preponderance of the evidence. 905(c)( The burden of persuasion
on any factual issue, the resolution of which is necessary to decide a motion, shall be on the
moving party. 905(c)(2). The L'nited States has the burden of persuasion as the moving

party.
(U)

(U) U.S. Army IP address 22.225.41.22 (hereinafter .22) was the Accused?s primary
computer at his work station in the Sensitive Compartmented Information Facility
(SCIF) at FOB Hammer, lraq. Enclosure I. U.S. Army IP address 22225.4 1 (hereinafter
.-10) was the Accused?s secondary SIPRNET computer at his work station in the SCIF at FOB
Hammer. S_eg Enclosure 2.

The Accused had an Intelink passpoit account. lntelinl. passport accounts have
user names and passwords. and the Accused was assigned the user name bradleyemanning Si
Enclosures and 9. The email address was assigned to the
account, and the account was last used on 27 April 2010. Enclosure 4.

/xx?



PAGE REFERENCED:


9

23212



(U) The lntelink passport account profile contains the identifying information ofthe user as
well as personalized information in the form of questions and answers. See Enclosure 9.

(U) lntelink is the central SIPRNET search engine, analogous to While an
Intelink search is the equivalent of an lnternetGooglc search, searches websites only
available via the Searches using lntelink are typically logged. Enclosure 5.



The lntelink log ?les revealed communications between the Accused?s IP
addresses ll] Iraq (.22 and .40) and the lntelink servers. See Enclosure 3. The lntelink logs
captured search terms that were searched on SIPRNET, as well as files that were downloaded.
sg; Enclosures 3 and 8.

(U) The significance ofthe searches for ?julian+assange" is that Julian Assange was the co
founder and head spokesman of Wikileaksorg. The signi?cance of the searches for ?Iceland? is
that on 18 February 20l0, Wikileaksorg posted a classified Department of State cable from the
U.S. Embassy in Reykjavik. Iceland. Enclosure 3. The significance of the searches relating
to cracking passwords was that in recovered chat logs on the Accused's personal computer, the
Accused discussed using the same password cracking tools. The significance of the searches
relating to TOR is that TOR is a distributed network of virtual tunnels that allows users to hide
their actions while on the lntemet and was used on the Accuscd?s personal computer.
Enclosure 3. The significance of the ?collateral murder,? ?reuters," or 2 Jul 07" searches is
that Collateral i\1urder was the name given to a movie created by WikiLeaks.org and released on
5 April 2010 concerning an Apache helicopter air strike involving the death of a Reuters
reporter in _S_e_e Enclosure 3.






23213

(U) The OSC user account bradass87 was tied to the SIPRNET email address
and was last used on 1 I April $3 Enclosures 4 and
6, The Accused?s AOL Instant Messenger username was bradass87. Enclosure 4. The OSC
account bmanning was tied to the SIPR email address and was last
used on 6 November 2009. SE Enclosures 4 and 5.



U0) Between l7 March 2010 and 22 March 2010. the Accuscd's user account on his
.22 computer accessed the files and terrorism.pdt'.
both located in the folder and Documents\blah\.
Enclosure 4.

U0) A user of the Accused?s personal computer accessed a named
lO0322_l255 which contained the tile blahzip. The Accused?s primary SIPRNET computer
was configured to burn and label them in a manner of
Enclosure 4.



23214



(U)

(U) The prosecution requests the Court consider the following: Charge Sheet and Listed
Enclosures.

(U) LEGAL AIITHORITY AND

(U) The trial judge has discretion as to the manner in which she makes preliminary
concerning the admissibility of evidence. MRE 104; sg US. v. Blanchard. 48
M.J. 306 (C.A.A.F. 1998). Thisjudicial discretion includes "preadmitting" evidence provided it
is relevant and no other rule prohibits its admission. See, US. v. Bradford. 68 MJ. 371
2010). Where, as here, there is no question as to the admissibility of the evidence. the
enclosed computer~generated records should be preadmitted to provide predictability to both
parties and to dispose of what amounts to administrative matters outside the presence ofthe
panel (assuming there is a panel).

I. (U) THE RECORDS ARE RELEVANT.
(U) Evidence that has a tendency to a fact of consequence more or less probable than it

would be without the evidence is relevant. MRE 401. All relevant evidence is generally
admissible. MRE402.

A. (U) OSC Logs and User Account

(U) The OSC. user account information reveals that bradass87 and bmanning were the
Accused?s user accounts, and the OSC logs show the Accused?s activity on OSC.



B. (U) lntelinl. Logs and lntelink Passport Account

?l'he Intelink Passport Account information is relevant to all the charged
misconduct because it reveals that the bradleyemanning account was set up and utilized by the
Accused. See Enclosure 9.



23215

(U) The lntelink logs are relevant to proving the charged misconduct in all the charges. They
establish searches by the Accused for terms relating to all the charged misconduct. ?g
Enclosure 8.

II. (U) THE RECORDS ARE NOT EXCLUDABLE AS HEARSAY BECAUSE THEY
ARE COMPUTER UENERATED ACTIVITY.

(U) Hearsay is an out of court statement, written or oral, offered for the truth oftlie matter
asserted. MRE 80l(c). A statement is an oral or written assertion or the nonverbal conduct of a
person, if it is intended by the person as an assertion. MRE 80l(a). A deelarant is a person who
makes a statement. MRE 80l(b). A xrson must make a statement for it to be hearsay; a
machine, therefore, cannot make a statement. See also Appellate Exhibit CCXVI ("machine
generated data and printouts are not statements and, thus. they are not hearsay?).

(U) United States v. Blazier, 69 M.J. 2l8 20l0) is instructive on distinguishing
between hearsay and computer generated records. ln reviewing what portions of a drug testing
report were admissible in a wrongful use case, the determined that testimonial hearsay
included a signed, certi?ed cover memorandum prepared at the request of the government for
use at trial in which a person summarized the lab analyses. ld_. at 221 fn.l. A person had written
out what tests were conducted. what substances were detected, and the levels of each substance
detected. l_(L at 226. The cover memorandum was a written summary of the testimony that
would be offered on the drug testing and its results.

(U) The Blazier Coun then distinguished the testimonial hearsay in the cover memorandum
from inacliine generated records, such as raw data and calibration charts, stating: "it is well-
settled that under both the Confrontation Clause arid the rules ofevidence, machine-generated
data and printouts are not statements and thus not liearsay- machines are not declarants- and
such data is therefore not ?testimonial."' at 224 (citing United States v. Lamons. 532 F.3d
1251, 1263 (l 1th Cir. 2008); United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008); United
States v. Washington. 498 F.3d 225. 230 3| (4th Cir. 2007); United States v. Hamilton. 413 F.3d
1138, l|42-43 (10th Cir. 2005); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003)).
According to the Court. ?lmlachine-generated data and printouts such as those in this case are
distinguishable from human statements. as they ?involve so little intervention by humans in their
generation as to leave no doubt they are wholly machine generated for all practical purposes.?
Blazier, 69 MJ at 224 (quoting Lamons. 532 F.3d at 1283 n.23).

Since the OSC logs and user account information sereenshots, as well as the
lntelink lo and Pass on Account information are com uter- venerated, and thus not made by
8 .
people. they cannot be hearsay.



23216

ARE AUTHENTIC.

(U) In addition to being relevant, evidence must also be authentic to be admissible.
MRE 901 is satis?ed by evidence sufficient to support a ?nding that the
matter in question is what its proponent claims." MRE 90l(a). Some evidence. however, is self-
authenticating and does not require "lejxtrinsic evidence of authenticity as a condition precedent
to admissibility." MRE 902. ?Certi?ed domestic records of regularly conducted activity? fall
under this exception. MRE 902(l 1),

(U) Pursuant to 902(l extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to certified domestic records of a regularly conducted
activity when:

[t]he original or a duplicate of a document or record of regularly
conducted activity that would be admissible under Mil R. Evid.
803(6) if accompanied by a written declaration of its custodian or
other quali?ed person. in a manner complying with any Act of
Congress or rule prescribed by the Supreme Court pursuant to
statutory authority certifying that the record (A) was made at or
near the time of the occurrence of the matters set forth by, or from
information transmitted by, a person with knowledge of those
matters?. (B) was kept in the course of the regularly conducted
activity; and (C) was made by the regularly conducted activity as a
regular practice.

MRI-L ?)O2(l 1).
"Records of regularly conducted activity? is defined in MRE 803(6) as the following:

memorandum, report, record, or data compilation, in any form,
of acts. events, conditions, opinions. or diagnoses, made at or near
the time by. or from information transmitted by. a person with
knowledge, if kept in the course of a 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 by certi?cation that complies with R. Evid.
902(l 1) or any other statute permitting certification in a criminal
proceeding in a court of the United States. unless the source of the
information or the method or circumstances or preparation lack
trustworthiness.

MRE 803(6).



23217

(U) The following attestations were made for the enclosed computer-generated files?

On 22 June 2012, Mr. Stephen Buchanan. Infonnation System Security Manager,
National Security Agency. Fort Meade, MD. attested to the authenticity of the Intelink logs for
both the computer used by the Accused in Iraq and the Intelink Passport account information for
the Accused. Speci?cally. Mr. Buchanan attested to the following: the listed logs for IP address
22225.4 I .22, with date ranges of9 November 2009 to 30 December 2()09, 23 January 2010 to
I 1 February 2010, and 2 March 2010 to I2 May 20l0'. the listed logs for ll? address
22.223.41.40, with date ranges of?) November 2009 to 3] December 2009, January 2010 to 28
February 2010, and 1 March 2010 to 21 May 20l0; and the Intelink Passport account
information for bradlcyemanning. contained in the file manningldif. Enclosure 6.

On 29 June 2012, Mr. Maxwell Allen, Database Administrator, Central
Intelligence Agency, Washington. DC, attested to the authenticity of the OSC log files and user
information files, specifically for those OSC accounts pertaining to the users bradass87 and
bmanning. SE Enclosure 7.

(U) Since the accompanying all records were made in accordance with MRE
902(l I), all the records are properly authenticated.

IV. (U) THE RECORDS ARE IN A FORM THAT IS BEING OFFERED AS AN
ORIGINAI. OR DUPLICATE UNDER THE ORIGINAL WRITING RULE. OR
THERE IS ADMISSIBLE SECONDARY EVIDENCE TO PROVE THE CONTENTS
OF THE RECORDS IAW MRE l00l 1008.

(U) duplicate is admissible to the same extent as an original unless (I) a genuine question
is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to
admit the duplicate in lieu of the original.? MRE 1003. A duplicate is defined as ?a counterpart
produced by the same impression as the original. or from the same matrix, or by means of
photography. including enlargements and miniatures. or by mechanical or electronic rerecording.
or by Chemical reproduction, or by other equivalent techniques \Vl']iCh accurately reproduce the
original." MRE l00l(4). ?The contents ofan official record . . . including data compilations in
any form, ifotherwise admissible. may be proved by copy, certified as correct or attested to in
accordance with Mil. R. Evid. 902 or testified to be correct by a witness who has compared it
with the original. If a copy which complies with the foregoing cannot be obtained by the
exercise of reasonable diligence, then other evidence of the contents may be given." MRE 1005.

(U) In the certi?cations for all oftlie enclosed records, the records custodian specifically
states that the records are true and accurate or complete copies of the originals. There is no
evidence that any of the original documentation may not be authentic. nor is there any
circumstance present which would make the admission of a duplicate in lieu of the original
unfair. The enclosures include official records, and all oftnem are business records. The
duplicates, therefore, are admissible to the same extent as the originals.



7



23218

V. THF. VALUE OF THE RECORDS IS NOT
OUTWEICHED BY LINFAIR

(U) Courts may exclude relevant evidence ifits probative value is substantially outweighed
by the danger of unfair prejudice. confusion, or waste of time. Prejudice alone :s not
sufficient to warrant exclusion. Virtually all evidence is prejudicial to one party or another. To
justify exclusion the prejudice must be unfair. Llnited States v. Candelaria-Silva. I62 F.3d 698.
705 (1st Cir. 1998).

In the instant case. the log rccordsaiid user account information are extremely probative
in that they track what was occurring on the computers used by the Accused and on the user
profiles created by the Accused. The evidence is prejudicial to the Accused in that it builds the
case against him; however, it is not unfairly prejudicial. All of the logs are relevant to the
Accused and the charged offenses and are a direct result ofthe Accused?s actions. The logs
establish a timeline to malte the events clear to the factfinder.

CONCLUSION

(LI) Based upon the requirements for admissibility of evidence in accordance with MRIE lO4.
MRE 40l, MRE 402, MRli 403, MRE MRE 803(6). and MRF. 902(l I), the Goveniinent
respectfully moves this Court, pursuant to RCM 906( I3) to pref-admit the OSC logs and user
information and the lntelink logs and user information in Enclosures 5-9 because they are
relevant to the charges at issue and computer-generated information. They will provide
improved predictability and efficiency to the proceedings.


-
ANGEL

Cl"l', JA
Assistant Trial Counsel

(LI) I certify that I served or caused to be served a trzie copy" of the above on Defense Security
Experts, via electronic mail. ?on 3 August 2012.



ERGAARD
CPT, JA
Assistant Trial Counsel



(ll) 9 l-Znclosures



23219



1. (U) Forensic Report MANNING SIPR 22.225.41.22 22 Sep 11 (attached to Ali as
Enclosure I)
2. (U) Forensic Report MANNING SIPR 22225.4! .40 22 Sep (attached to AE as
Enclosure 2)

3. (U) Forensic Re on Intelink Lo s-22 Se



5. (U) OSC User Information Files (bmanning) with attestation
6. (U) OSC User Information Files (bradass87) with attestation
7. (U) OSC Logs (hmanning bradass8?7) with attestation

8. (U) lntelink .22 .40 Logs with attestation

9. (U) Passport Account Information with attestation



23220

Appellate Exhibit 246,
Enclosure 1
has been entered into
the record as
Appellate Exhibit 178,
Enclosure 1

23221

Appellate Exhibit246,
Enclosures
has been entered into
the record as
Appellate Exhibitl78,
Enclosures

23222

Appellate Exhibit246,
Enclosures
has been entered into
the record as
prosecution Exhibit 141

23223



UNITED STATES OF AMERICA
Prosecution Motion
v. For Preliminary Determination of
Admissibility of Evidence
Manning, Bradley E. (Computer-Generated Records)
PFC, U.S. Army,
HHC, U.S. Army Garrison, Enclosures 5-6
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211 3 August 2012
See Attached CD



23224

OFFICIAL USE ONLY

ATTESTATION CERTIFICATE

This document is intended tonmeetme requirements set forth in Military Rules of Evidence Rule 902(11).
addressing certified records of regularly conducted activity.

I swear or af?rrn that each of the following is true regarding the attached records. to the best of my
knowledge and belief:

1_ lam the custodian of these records, or I am an employee familiar with the manner and process in
which these records are created and maintained, by virtue of my duties and responsibilities;

2. The records were made at or near the time of the occurrence of the matters set forth by, or from
information transmitted by. a person with knowledge of these matters;

3. The records were kept in the course of regularly conducted business activity;

4 The records were made by the regularly conducted activity as a regular practice; and
5. The records are a true, accurate, and complete copy of the original documents.

_List at attached-records:

OSC log ?les, containing the following logs, with the following date ranges:

bmanning_dislinct__export_with classi?cation.xls 6-Nov-09 - 9-Nov-10
bradass87_distinct_export_with classilicatiomtls 20-Feb-10 - 1 7-Apr-10
bradass87_sum_export_with classification.xIs No date range

OSC user information ?les entitled:
Opensource.gov-bmanning.pdf

Opensource.gov-bradass87.pdf

Organization: Central intelligence Agency I

Signat I, Date
<24? /are/_ae
Print or Type Name Title DE

rum

Subscribed and sworn to before a notary public. this Notary fut-?e /t expires onOFFICIAL USE ONLY



PAGE

23225











ManningB_0O505184

Appellate Exhibit 246
Enclosures 5-6
(Attachment)
have been entered into
the record as a
and will be maintained
with the original

Record of Trial

23226

23227



UNITED STATES OF AMERICA
Prosecution Motion
v. For Preliminary Determination of
Admissibility of Evidence
Manning, Bradley E. (Computer-Generated Records)
PFC, U.S. Army,
HHC, U.S. Army Garrison, Enclosures 5-6
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211 3 August 2012
See Attached CD



23228

OFFICIAL USE ONLY

ATTESTATION CERTIFICATE

This document is intended tolmeetmerequiremerits set forth in Military Rules of Evidence Rule 902(11).
addressing certified records of regularly conducted activity.

I swear or af?rm that each of the following is true regarding the attached records. to the best of my
knowledge and belief:

1_ I am the custodian of these records, or I am an employee familiar with the manner and process in
which these records are created and maintained, by virtue of my duties and responsibilities;

2. The records were made at or near the time of the occurrence of the matters set forth by. or from
information transmitted by. a person with knowledge of these matters;

3. The records were kept in the course of regularly conducted business activity;
4 The records were made by the reguiarty conducted activity as a regular practice; and

5. The records are a true, accurate, and complete copy of the original documents.

attached records:

OSC log ?les, containing the following logs, with the following date ranges:

bmanning_distinct__export_with classi?cation.xls 6-Nov-09 - 9?Nov-10
bradass87_distinct_export_with ciassiticationxls 20-Feb-10 - 1 7-Apr-10
bradass87_sum_export_with classi?catiomrls No date range

OSC user information ?les entitled:
Opensource.gov-bmanning.pdf

Opensource.gov-bradass87.pdf

Organization: Central Intelligence Agency A

Date

//Mew D6 ,9
Print or Type Name Title 3
l/A-xwQ// Own-?en.











Subscribed and sworn to before a notary public, this Q2 I day of j??e 20 .
Notary futmc Hy? commission expires onOFFICIAL USE ONLY


PAGE

23229


































.4a?.11
.
.

.
.
8.1Appellate Exhibit 246
Enclosures 5-6
(Attachment)
have been entered into
the record as a
and will be maintained
with the original

Record of Trial

23230

23231

Appellate Exhibit 246,
Enclosure 7
has been entered into
the record as
Prosecution Exhibit 140

23232

Appellate Exhibit246,
Enclosures
has been entered into
the record as
Prosecution Exhibit^l

23233

Appellate Exhibit246,
Enclosures
has been entered into
the record as
Prosecution Exhibit 62

23234

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE RESPONSE TO
v. GOVERNMENT MOTION FOR
PRELIMINARY
MANNING, Bradley E., PFC DETERMINATION OF

ADMISSIBILITY OF EVIDENCE
(COMPUTER-GENERATED
RECORDS)

us. Army.

Headquarters and Headquarters Company. U.S.
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221

DATED: 17 AUGUST 2012



RELIEF SOUGHT

1. PFC Bradley E. Manning, by and through counsel, moves this court to deny the
Govemment?s motion for a preliminary determination as to the admissibility of computer-
generated evidence.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party, the Govemment has the burden of persuasion. R.C.M. 905(c)(2). The
burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1).

FACTS

3. PFC Manning is charged with ?ve speci?cations of violating a lawful general regulation, one
speci?cation of aiding the enemy. one speci?cation of disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight speci?cations of communicating
classi?ed information, ?ve speci?cations of stealing or knowingly converting government
property, and two speci?cations of knowingly exceeding authorized access to a government
computer, in violation of Articles 92, 104, and 134. Uniform Code of Military Justice (UCMJ)
10 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 18 March 20] 1. The current charges were preferred on 1 March 201 1.
On 16 December through 22 December 201 1, these charges were investigated by an Article 32
Investigating Of?cer. The charges were referred on 3 February 2012.


PAGE REFERENCBD:
PAGE or PAGES



23235



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 the Government?s Enclosures to its Motion for
Preliminary Determination on Admissibility of Evidence dated 3 August 2012 because they are
testimonial hearsay falling outside the scope of M.R.Es 803 (6) and 902(11).

I. The Enclosures Are Hearsay Because They Contain Statements by the Computer User

7. R.C.M. 801(a) de?nes a statement as either ?an oral or written assertion? or ?nonverbal
conduct of a person.? Here, the Enclosures in question contain the statements of a computer
user(s). That is, the Enclosures contain written assertions and nonverbal conduct by the user(s)
of various computers.

8. The Government relies heavily on the decision in U. S. v. Blazier, 69 M.J. 218 (C.A.A.F.
2010) to suggest that the Enclosures in question are machine-generated. There, the court was
concerned with the amount of human intervention in the creation of the record. Id. at 224.
Although, the Government noted this in its motion, it failed to actually address the amount of
human intervention involved in the creation of each record it seeks to admit. Rather, the
Government simply made the blanket assertion that the Enclosures are computengenerated. It
would seem the Government is arguing that because the records were kept on a computer,
document computer activity and a computer was used to print the record, the record must be
?computer-generated.? Following the Govemment?s rationale to its logical conclusion would
leave ridiculous results. For example, a printed copy of this motion would not amount to hearsay
because it was created using a computer, stored on a computer and printed using a computer;
never mind the fact that a user had to input all the data that the computer ?generates.?

9. The Enclosures the Government seeks to admit involve signi?cant human intervention and
cannot be considered ?wholly machine-generated.? Unlike the urinalysis reports the
Government attempts to analogize, here the data the Government seeks to pre-admit amounts to
a statement by the computer user. With a urinalysis report, the computer creates a record out of
whole cloth; it takes a sample, analyzes it and produces data. Here, the Enclosures are records of
searches actually typed in by a user of the computer. But for the user typing the exact phrases,
names and terms, and conducting the various actions documented?, the record the Government
seeks to admit would not exist. Thus, it is clear that the amount of human intervention in the
creation of these records is signi?cant. It must follow that the records containing those exact
phrases, names and terms are a statement by the user.

10. Because the Enclosures contain out of court statements from the user(s) of various
computers and the Government seeds to offer them for the truth of the matter asserted, the

Be it opening a ?le, creating a file, visiting a website, typing a search or any other user conduct that is
memorialized in the Enclosures.

23236

Government must point to a hearsay exception. Absent such an exception the Enclosures should
not be admitted.

II. The Enclosures Are Testimonial Hearsay Pursuant to Crawford

11. Additionally, the reports themselves are testimonial hearsay. 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.

12. 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 satis?ed is the
Accused is afforded an opportunity for cross-examination. 541 U.S. 36, 59 (2004). The
Crawford Court de?ned 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.

13. 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.

14. The C.A.A.F. in US 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 speci?cally requested by law enforcement and the information relayed on the
laboratory reports pertained to items seized during the arrest of an identi?ed ?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 discover incriminating evidence.? Id. (quoting US. v. Magyari, 63 M.J. 123
(2006)).

15. Similarly, the Coast Guard Court of Criminal Appeals applied the Rankin Factors in
determining statements in a cover memorandum were testimonial. US. v. Byrne, 70 M.J. 611
(2011). 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

3

23237

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.

16. In the case at hand, the Government seeks to introduce Enclosures that are testimonial in
nature. Speci?cally, the Government?s Enclosures fall outside the scope of 803(6) and 902(11)
because they were made in preparation for trial. In each instance, the record contained in the
various Enclosures was created at the behest of the Government. That is, they did not exist in the
present form until the Government requested them with an towards 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.

CONCLUSION

17. 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(1 1).

Respectfully submitted,



JOSHUA J. TOOMAN
CPT, JA
Defense Counsel

23238

UNITEDSTATESOF AMERICA
Government Motion
to Take Judicial Notice

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

3 August 2012
RELIEF SOUGHT

The United States in the above-captioned case requests this Court takejudicial notice of the
following adjudicative facts:
(1) Army Regulation (AR) 25-2, paragraphs 1-4, 1-5, 3-3, 4-5, 4-16, 4-17, andfigureB-1
(2) AR 380-5, paragraphs 1-20, 1-21, 1-22; Chapter 2; Chapter 4 (Secfion I); Chapter 5
(Sections I and V); paragraphs 6-1, 6-2, 6-3, 7-4, 8-3, and 8-12;
(3) AR 530-1, paragraphs 1-5, 1-6, 1-7, and 2-1;
(4) 18 U.S.C. §641;
(5) 18 U.S.C. § 793(e);
(6) 18 U.S.C. § 1030 (a)(1);
(7) Executive Order 13526; and
(8) Authorization for Use of Military Force
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. RCM 905(c)(1). The burden of persuasion on
any factual issue the resolution of which is necessary to decide a motion shall be on the moving
party. RCM 905(c)(2). The United States has the burden of persuasion as the moving party.
FACTS
The accused is charged with giving intelligence to the enemy, in violation of Article 104,
Uniform Code ofMilitary Justice (UCMJ). The accused is also charged with eight specifications
alleging misconduct in violation of 18 U.S.C. § 793(e), five specifications alleging misconduct in
violation of 18 U.S.C. § 641, two specifications alleging misconduct in violation of 18 U.S.C. §
1030(a)(1), five specifications alleging misconduct in violation of Article 92, UCMJ, and one
specification alleging misconduct prejudicial to good order and discipline and service discrediting.
See Charge Sheet.
WITNESSES/EVIDENCE
The United States requests this Court consider the referred charge sheet in support of its
motion, as well as Enclosures 1-8.

APPELLATE EXHIBIT
PAGE REFERENCED:__
PAGE OF
PAGES

23239

LEGALAUTHORITY AND ARGUMENT
Ajudicially noticed fact must be ^^adjudicative" and ^^must be one not subject to reasonable
dispute in that it is either(l)generally known universally,locally,or in the area pertinent to the
event or (2)capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned." Military Rule ofEvidence (MRE) 201.
A. Army Regulations
Army Regulation 25 2,dated24October2007,provides the Army^s Information Assurance
(IA)policy,mandates, roles, responsibilities, and procedures tor implementing the Army lA
program. Paragraphsl4andl5address the purpose behind the Army lA program and provide an
overview ofthe program. Paragraph33addresses the roles and responsibilities ofIA support
personneL Paragraphs45(a)(3)and4-5(a)(4)discuss activities that are specificallyprohibited by
any authorized user onaGovemment-providedlntormationSystem or connection. Paragraph416
addresses intormation systems mediaprotection requirements and states that Armypersonnel will
not transmit classified int^rmation over any communication systems unless using approved security
procedures and practices. Paragraph 4-17addresses the proper procedures tor labeling, marking,
and controlling information systems media. FigureBlisatemplate Acceptable Use Policy. The
Accused is charged with attempting to bypass network or intc^rmation systems security mechanisms,
adding unauthorized sottware toaSecretlntemet Protocol Router Network computer, and using an
information system inamanner other than its intended purpose.
The existence of AR 25 2, dated240ctober 2007,isatact not subject to reasonable dispute.
This tact is generally known and capable of accurate and ready determination by resort toasource
whose accuracy cannot be reasonably questioned.
ThetactthatAR25 2,dated24October2007,wasineflectbetweenlNovember2009and
27 May 2010, the time period in which the accused was alleged to have committed the charged
misconduct in this case, is generally known and capable ofaccurate and ready determination by
resort to the AR whose accuracy cannot be reasonably questioned.
Tbe fact that the accused hadaduty to obey AR25 2 isafact not subject to reasonable
dispute. AR25-2applies to military persor^el ofthe Active Army and applies to all users in all
environments. AR 25-2, paragraphl-5(j) states that ^^military and civilian personnel may be subject
to administrative and^or judicial sanctions if they knowingly, willfully,or negligently compromise,
damage, or place Army intormation systems at risk by not ensuring implementation ofDOD and
Armypolicies and procedures."
AR380-5 establisbes policies tor classification, downgrading, declassification, and
sateguardingofintormation requiring protection in the interest ofnational security. Paragraphsl20,1 21,andI-22, discuss the corrective actions and sanctions that are taken whenaviolation of
this regulation has occurred. Chapter2discusses the role ofOriginal Classification Authorities,
the classification process, derivative classification, security classification guides, and classification
of nongovemment intormation. Chapter4, Section I, discusses the proper procedures formarking
documents. Chapter 5, Section I, discusses the proper handling of controlled unclassified
information which also requires protection in order to prevent damage to the national security.
Chapter5,SectionV,addresses sensitive information and discusses the proper procedures tor

23240

marking and handlingtbis type of materiaL Paragraph 6-ldiscusses the responsibilities of
Department ofthe Army (DA)personnel in accessing classified intormation. Paragraph 6-2
discusses nondisclosure agreements and states thatDA personnel will receiveabriefing regarding
their responsibilities in protecting classified information and will signaclassified intormation
nondisclosure agreement (NDA). Paragraph63discusses the signing and filing ofthe NDA.
Paragraph74, discusses the standards t^r storage of classified intormation, and states that classified
intormation that is not under the personal control and observation ofan authorized person is to be
guarded or stored inalocked security container,vault, room, or area, pursuant to the level of
classification. Paragraph83,discusses the proper methods tor transporting and transmitting
^^SECRET" intormation. Paragraph 8-12, discusses the general provisions tor escorting or hand
carrying classified materiaLThe accused is charged with,
improperly handling and
storing classified materiaL
Tbe existence of AR 380-5,dated 29 September 2000, isatact not subject to reasonable
dispute. Tbis tact is generally known and capable of accurate and ready determination by resort toa
source whose accuracy cannot be reasonably questioned.
The factthatAR380 5,dated29 September 2000, was in etfectbetweenlNovember 2009
and 27 May2010, the time period in which the accused was alleged to have committed the charged
misconduct in this case, is generally known and capable ofaccurate and ready determination by
resort to the AR whose accuracy carmot be reasonably questioned.
The fact that the accused badaduty to obey AR380 5 isatact not subject to reasonable
dispute. AR380 5 applies to military personnel ofthe Active Army and applies to all users in all
environments. AR 380 5,paragraphl-21(a)subjectsDApersonnel to sanctions if they ^^knowingly,
willfully, or negligently^^ do any ofthe tollowing: ^^(l)Disclose classified or sensitive intormation
to unauthorized persons, (2)Classify or continue the classification ofintormation in violation ofthis
regulation, (3) Violate any otherprovision ofthis regulation.
AR 530 1,datedl9April2007,addressesArmypolicy on Operations Security(OPSEC)
program development, provides details on the OPSEC planning process, and outlines the OPSEC
review,assessment, and survey. Paragraphl5discusses the definition of OPSEC, critical
intormation, sensitive intormation, and OPSEC compromise. Paragraphl 6discussesthe
requirement ofeach DOD component to have an OPSEC program and the purpose behind the
requiremenL Paragrapht7discusses the application of OPSEC. Paragraph2-laddressesArmy
personnel operations security responsibility and the results of failure to implement OPSEC
measures.
The existence of AR 530 1,datedl9 April 2007,isatact not subject to reasonable dispute.
This fact is generally known and capableof accurate and ready determination byresorttoasource
whose accuracy cannot be reasonably questioned.
The tactthatAR 530 1,dated 19 April 2007,was in eftectbetweenlNovember 2009 and
27 May 2010, the time period in which the accused was alleged to have committed the charged
misconduct in this case, is generally known and capableof accurate and ready determination by
resort to the AR whose accuracy carmot be reasonably questioned.

23241

Tbe fact that tbe Accused badadutyto obey AR530 1 isafact not subject to reasonable
dispute. AR530 1 applies to military personnel ofthe Active Army and applies during all phases
of operations Army Regulation 530 1,paragraph21(b)(2)states^^at^ilure to comply with these
orders, directives, orpolicies may be punished as violations ofalawful order under Article 92 ofthe
UCMJ"
B. Executive Order
Executive Order 13526 addresses classified national security intormation by prescribinga
unitormsystemforclassifying, safeguarding, and declassifyingnationalsecurityinformation,
including intormation relating to defense against transnational terrorism. The order authorizes
information to be classified when it concems foreign relations or toreign activities ofthe United
States.
The existence ofExecutive Order 13526, dated 29 December 2009,isafact not subject to
reasonable dispute. This tact is generally known and capable ofaccurate and ready determination
by resort to the ^^ite House website at http:^^www.whitehouse.gov^the-press-office^executiveorder-classified-national-securityintormation,asource whose accuracy cannot be reasonably
questioned.
The fact that Executive Order 13526, dated 29 December 2009,was in effect at the time the
Accused was charged with compromising classified material, isatact not subject to reasonable
dispute. This tact is generally known and capable ofaccurate and ready determination by resort to
the ^Vhite House website at http:^^www.whitehouse.gov^the-press-office^executive order classifiednational-securityintormation,asource whose accuracy carmot be reasonably questioned.
C. Federal Statutes
The existence ofl8U.S.C.§641 isafact not subject to reasonable dispute. This tact is
generally known and capable of accurate and ready determination by resort toTitlel8,United
States Code,asource whose accuracy cannot be reasonably questioned.
The tact thatl8U.S.C.§64twas in eftect at the time the accused was charged with stealing
or converting govemment property isatact not subject to reasonable dispute. This tact is generally
known and capable of accurate and ready determination by resort toTitleI8,United States Code,a
source whose accuracy carmot be reasonably questioned.
The existence ofl8U.S.C.§ 793(e)isafact not subject to reasonable dispute. This tact is
generally known and capable of accurate and ready determination by resort toTitlel8,United
States Code,asource whose accuracy cannot be reasonably questioned.
The fact thatl8U.S.C.§ 793(e)was in effect at the time the accused was charged with
transmitting national defense intormation isafact not subject to reasonable dispute. This tact is
generally known and capable of accurate and ready determination by resort toTitlel8,United
States Code,asource whose accuracy cannot be reasonably questioned.

23242

The existenceofl8US.C.§ 1030(a)(l)isafactnotsubjectto reasonable dispute.Tbis fact
is generally known and capable of accurate and ready determination byresort to Titlel8, United
States Code,asource whose accuracy carmot be reasonably questioned.
Tbe fact thatl8U.S.C.§ 1030(a)(I)was in eflect at the time the accused was charged witb
exceeding authorized access onaSecret Internet Protocol Router Network computerisatact not
subject to reasonable dispute. This tact is generally known and capable of accurate and ready
determination byresort to TitleI8, United States Code,asource whose accuracy cannot be
reasonably questioned.
D. Joint Resolution
The Authorization tor Use ofMilitary Force authorized the President to ^^use all necessary
and appropriate torce against those nations, organizations, or persons he determines platmed,
authorized, committed or aided the terrorist attacks that occurred on Septemberll,2001,or
harbored such organizations or persons, in order to prevent any future actsofintemational terrorism
against the United States by such nations, organizations, or persons."
The existence ofthe Authorization tor Use ofMilitary Force, signed into lawl8September
2001,isafact not subject to reasonable dispute. This tact is generally known and capableof
accurate and ready determination by resort to theU.S.Govemment Printing Otfice website at
http:^^www.gpo.gov^fdsys^pkg^PLA^107publ40^html^PLA^107publ40.htm,asource whose
accuracy carmot be reasonably questioned.
The tact that the Authorization tor Use ofMilitary Force, signed into lawl8September
2001,was in eftect at the time the accused was chargedaviolation of Articlel04, UCMJ,isatact
not subject to reasonable dispute.This tact is generally known and capable of accurate and ready
determination by resort to theU.S.Goverrm:^ent Printing Office website at
http:^^www.gpo.gov^tdsys^pkg^PLA^-107publ40^html^PLA^-107publ40.htm,asource whose
accuracy cannot be reasonably questioned.
CONCLUSION
For the reasons stated above, the United States requests the Court takejudicial notice ofthe
existence and the content ofthe above-mentioned portions ofthe Army Regulations, the Executive
Order, the Federal Statutes, and the Joint Resolution, as they meet all the requirements ofMRE 201.

B^^D^^ORRO^
^PT,JA
AssistantTrial Counsel

23243

I certify that I served or caused to be served a tme copy of the above on Defense Counsel via
electronic mail, on 3 August 2012.

/ p D E A N MORROW
CPT, JA
Assistant Trial Counsel

8 Ends
1. AR 25-2, paragraphs 1-4, 1-5, 3-3, 4-5, 4-16, 4-17, andfigureB-1
2. AR 380-5, paragraphs 1-20, 1-21, 1-22; Chapter 2, Chapter 4 (Section I); Chapter 5 (Sections I
and V); paragraphs 6-1, 6-2, 6-3, 7-4, 8-3, and 8-12
3. AR 530-1, paragraphs 1-5, 1-6, 1-7, and 2-1
4. 18 U.S.C. §641
5. 18 U.S.C. § 793(e)
6. 18 U.S.C. § 1030(a)(1)
7. Executive Order 13526
8. Authorization for Use of Military Force

23244

UNITED STATES OF AMERICA
V.

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

Government Motion
to Take Judicial Notice

Enclosure 1
3 August 2012

23245

A r m y Regulation

25-2

Information Management

Information
Assurance

Rapid Action Revision (RAR) Issue Date: 23 March 2009

Headquarters
Department of the Army
Washington, DC
24 October 2007

UNCLASSIFIED

23246

Chapter 1
Introduction
1-1. Purpose
This regulation establishes information assurance (lA) policy, roles, and responsibilities. It assigns responsibilities for
all Headquarters, Department of the Anny (HQDA) staff, commanders, directors, lA personnel, users, and developers
for achieving acceptable levels of lA in the engineering, implementation, operation, and maintenance (ElO&M) for all
information systems (ISs) across the U.S. Army Enterprise Infostructure (AEI).
1-2. References
Required and related publications and prescribed and referenced forms are listed in appendix A.

1-3. Explanation of abbreviations and terms
Abbreviations and special terms used in this regulation are explained in the glossary.
1-4. Army Information Assurance Program
a. The Army Information Assurance Program (AIAP) is a unified approach to protect unclassified, sensitive, or
classified information stored, processed, accessed, or transmitted by ISs, and is established to consolidate and focus
Army efforts in securing that information, including its associated systems and resources, to increase the level of trust
of this information and the originating source. The AIAP will secure ISs through lA requirements, and does not extend
access privileges to special access programs (SAPs), classified, or compartmentalized data; neither does it circumvent
need-to-know requirements of the data or information transmitted.
b. The AIAP is designed to achieve the most effective and economical policy possible for all ISs using the risk
management approach for implementing security safeguards. To attain an acceptable level of risk, a combination of
staff and field actions is necessary to develop local policy and guidance, identify threats, problems and requirements,
and adequately plan for the required resources.
c. Information systems exhibit inherent security vulnerabilities. Cost-effective, timely, and proactive lA measures
and corrective actions will be established and implemented to mitigate risks before exploitation and to protect against
vulnerabilities and threats once they have been identified.
(1) Measures taken to attain lA objectives will be commensurate with the importance of the operations to mission
accomplishment, the sensitivity or criticality of the information being processed, and the relative risks (the combination
of threats, vulnerabilities, countermeasures, and mission impact) to the system. Implementation of an lA operational
baseline will be an incremental process of protecting critical assets or data first, and then building upon those levels of
protection and trust across the enclave.
(2) Statements of security requirements will be included in the earliest phases (for example, mission needs statements, operational requirements document, capstone requirement document) of the system acquisition, contracting, and
development life cycles.
d. An operationally focused lA program requires the implementation of innovative approaches. Through the use of
lA best business practices (BBPs) the best ideas, concepts, and methodologies acquired from industry and Army
resources will be used to define specific standards, measures, practices, or procedures necessary to meet rapidly
changing technology or lA requirements in support of Army policy requirements. lA BBPs allow rapid transitional
implementation of lA initiatives to integrate, use, improve, or modify technological or procedural changes as required
by policy. BBPs are located at https://informationassurance.us.army.mil.
e. The elements of the Defense in Depth (DID) strategy focus on three areas: people, operations, and defense of the
environment (the latter of which encompasses the computing environment, the networks, the enclave boundaries, and
the supporting infrastructure).
/ The AIAP is not a stand-alone program, but incorporates related functions from other standards or policies such
as; operations security (OPSEC), communications security (COMSEC), transmission security (TRANSEC), information
security (INFOSEC), personnel security, and physical security to achieve lA requirements.
g. Failure to implement proactive or conective lA security measures, guidance, policy, or procedures may prevent
system or enclave accreditation, installation, or operation and may increase system vulnerability to foreign and
domestic computer network operation (CNO) activities designed to deny service, compromise information, or permit
unauthorized access to sensitive information. lA or network personnel may block access to ISs that reflect poor lA
security practices or fail to implement corrective measures.

1-5. Overview
a. The AIAP applies to ISs including, but not limited to, computers, processors, devices, or environments (operating
in a prototype, test bed, stand-alone, integrated, embedded, or networked configuration) that store, process, access, or
transmit data, including unclassified, sensitive (formerly known as sensitive but unclassified (SBU)), and classified
data, with or without handling codes and caveats. ISs used for teleworking, telecommuting, or similar initiatives;
contractor owned or operated ISs; ISs obtained with non-appropriated funds; automated tactical systems (ATSs);
AR 25-2 • 24 October 2007

1

23247

automated weapons systems (A^Ss); distributed computing environments (DCEs); and systems processing intelligence
information are required to adhere to the provisions of this regulation.
^ Commanders of activities requiring limited access by any local foreign national (F^) officials or personnel
(including information technology (IT) positions) will follow the provisions ofthis regulation.
^. This regulation applies equally to the operation, safeguarding, andintegrityoftheinfi^astructures (for example,
power, water, air conditioning), including the environment in which the IS operates.
^. ^hile no regulation or policyon security measures can ever providea 100 percent solution,implementation of
theconcepts,procedures,andrecommendations inthisregulation will drastically reducethemanageability requirements of assets,and minimize the effects of unauthorized access or loss.The cornerstone philosophy of lA is to design,
implement, and secure access, data, ISs, and data repositories; increase trust and trusted relationships; employ technical
and operational security mechanisms; deny all unauthorized accesses; and permit necessary exceptions to support
Army, DOD, and .loint interagency and multinational (flM) tactical and sustaining base operations.
^. Army information constitutes an asset vital to the effective performance of our national security roles, ^ i l e all
communication systems are vulnerable to some degree,the ready availabilityoflowcostlT,freelydistributed attack
tools, increased system connectivity and asset distribution, and attack standoff capabilities make computer network
attacks (C^As) an attractive option to our adversaries. Information Assurance capabilities and actions protect and
defendnetworkavailability,protectdataintegrity,and providetheability to implement effectivecomputer network
defense (C^D). Managementof Army informationisimperativesothat its confidentiality.integrity,availability,and
non-repudiation can be ensured, and that usersofthat datacan be properly identified and authenticated.
^The AEI architecture requires the establishment, verification, and maintenance of trusted enclaves, trusted connec
tivity, and trusted information and information sources along with the capability to access and distribute that information by leveraging technology and capabilities to amplify that trust.
^. To accomplish these foundational objectives, this regulation establishes requirements as follows:
(1) Provides administrative and systems security requirements, including those for interconnected systems.
(2) Defines and mandates the use of risk assessments.
(^) Defines and mandates the DID strategy.
(4) Promotes the use of efficient procedures and cost effective, computer based security features and assurances.
(^) Describes the roles and responsibilities ofthe individuals who constitute the lA security community and its
system users, and outlines training and certification requirements.
(^) Requires a life cycle management approach to implementing lA requirements.
(^^ Introduces the concepts of mission assurance category, levels of confidentiality, and levels of robustness of
information.
(^) Implements DODD ^^001,DODI ^^002, and Chainnan of the toint Chiefs ofStaffManual(C^CSM) ^^1001
to align lA goals and requirements to support the DOD Information Management Strategic Plan.
(^) Mandatesprocedures to document the status ofaccreditationsfor all ISsfieldedby DOD organizations. Army
chartered program managers (PMs), and H^DA staff proponents.
(10) Mandates that DODand Army-level designated approvingauthorities(DAAs) meetthesystem accreditation
requirementsofthis regulation beforefieldingortestingany system that requiresconnectiontoan Army network.
(11) Requires the implementation of a configuration management (CM) process.
(12) Describes the Continuity of Operations Plan (COOP).
(1^) Provides the foundation forthe l^etworthiness Certification Program in AR 2^ I .
^ Other policies, procedures, or directives also govern certain systems. In the event of conflicts among these
policies, procedures, or directives, the more stringent requirement will take precedence, ^hen the most stringent policy
cannotbedetermined,theaffected Army component will submitarequestforapolicydecisionthrough their
supporting regionalchief information officers/functional chief information officers (RCIOs/FCIOs) tothe Chief InformationOfficer/Ci^(CIO/C^).
^ The mention of commercial products in this regulation does not imply endorsement by either DOD or the Army.
^ Military and civilian personnel may be subject to administrative and/or judicial sanctions if they knowingly,
willfully, or negligently compromise, damage, or place Army information systems at risk by not ensuring implementationof DODand Army policiesand procedures. Violationsare identified inboldedtext included in the following
paragraphs 3 - 3 , 4 - ^ , 4 - ^ , 4 1 2 , 4 1 ^ , 4 1 ^ , 4 20, a n d ^ ^
^. These provisions may be punished as violations as follows:
(1) Sanctionsfor civilian personnel may include,but are not limited to, some or all of the following administrative
actions: oral or written warning or reprimand; adverse performance evaluation; suspension with or without pay;loss or
suspension of access to IS or networks, and classified material and programs; any other administrative sanctions
authorized by contract or agreement; and/or dismissal from employment. Sanctions for civilians may also include
prosecutionin t^.S. District Courtor other courts and any sentences awardedpursuant to suchprosecution. Sanctions
may be awarded only by civilian managers or militaryofficials who have authority toimpose the specific sanction(s)
proposed.

AR 25-2^24 October 2007

23248

(10) Perform required monitoring of network resources per this regulation.
(11) Ensure the use of Army approved lA products from the lA Approved Products Eist.
(12) Implement lA and 1AVM reportingand complianceproceduresas setout inCICSM ^^10.01.
(13) Analyze and maintain network audit data.
(14) Ensure adequate networkconnectivity by making properdecisions conceming levels of confidentiality and
robustness for the system.
^BBI^^ The commander or manager/director of the activity responsible for the ISs will appoint an 1ASO for each IS
orgroupofISs The same lASO may be appointed for multiple ISs The 1ASO position will be designated IT 1, IT 11,
o r l T I I I Acontractor may not fill MSC,installation, or post lASO positions at 1T1,if created The lASO must be 1A
certified and maintain his or her certification. Appoint pre deployment or operational lASOs for developmental systems
withtheapplicableresponsibilities. DODuses theterm 1AO for lASOresponsibilities. All lASOs will—
(1) Enforce lA policy, guidance, and training requirements per this regulation and identified BBPs.
(2) Ensure implementation of 1AVM dissemination, reporting, and compliance procedures.
(3) Ensure all users meet the requisite favorable security investigations, clearances, authorization, need-to-know, and
security responsibilities before granting access to the IS.
(4) Ensure users receive initial and annual 1A awareness training.
(^) Ensurelog files and audits aremaintainedandreviewedforallsystems and that authentication(for example,
password) policies are audited for compliance.
(^) Prepare, distribute, and maintain plans, instructions, and SOPs conceming system security.
(^) Review and evaluate the effects on security ofsystem changes, including interfaces with other ISs and document
all changes.
(^) Ensure that all ISs within their area of responsibility are certified, accredited and reaccredited.
(^) Maintain and document CM for IS software (including IS waming banners) and hardware.
(10) Pre-deployment oroperational lASOs will ensuresystem recovery processesaremonitoredandthat security
features and procedures are properly restored.
(11^ Pre-deployment or operational lASOs will maintain current software licenses and ensure security related
documentation is current and accessible to properly authorized individuals.
(12) Tenant lASOs will support and assist tenant lAMs (orthe installation 1AM if no tenant lAM exists).
(13) Reportsecurity violations andincidents to the servicing RCERT in accordance with Section VIII,Incident and
Intrusion Reporting.

3-3. information assurance support personnel
In addition to the above described lA structure, other personnel have crucial responsibilities.
^ ^.^^^^
^^^^^^
System administrators (SAs) and network administrators (^As) must be
designatedIT 1,IT 11,or IT 111 (see para4 14).Each SA/l^A must be trained, experienced,lA certified, and currently
certified on the ISs that they arerequired to maintain. The SA/^A should bea t^.S. citizen and must hold a t^.S.
Oovemment security clearance and local access approvals commensurate with the level of information processed on the
system or network. SA/l^A responsibilities include, but are not limited to, implementing the AIAP within their
command, installation, or activity. SA/^As will be designed on appointment orders and will—
(1) Enforce the IS security guidance policies as provided by the lAM and performlASO duties if an lASO has not
been appointed.
(2) Enforce system access, operation, maintenance, and disposition requirements.
(3) Ensurethatpersonnel meet required security investigation,clearance,authorization, mission requirement.and
supervisory approval before granting access to the IS.
(4) Report security violations andincidents to the servicing RCERTin accordance withSection^lll,Incident and
Intrusion Reporting.
(^) ConductrequiredlAVMscanningand vulnerability assessments withapproved software as authorizedby their
1AM/1ASO. SAs/l^As are not limited to only 1AVM scanning, but should be conducting comprehensive network
assessments of their networks as authorized.
(^) Ensure CM includesallpertinentpatchesandfixesby routinely reviewing vendor sites,bu11etins, and notifications and proactively updating systems with fixes, patches, definitions,and service packs with 1AM or 1APM approval.
(7) Ensure any system changes resulting from updating or patching are reported to the 1AM/IASO.
(^) Record 1AVM compliance in the Asset and Vulnerability Tracking Resource (A^^TR) database.
(^) Maintain current anti virus (AV) engines and definitions on all ISs.
(10) Reviewand verify currency of user accounts,accesses,and logins. Remove departingusers^ accountsbefore
departure. Terminate inactive accounts verified as no longer required that exceed 4^ days.
(11) Suspend user accounts forthe following types of actions: actions that knowingly threaten, damage, or harm the
IS, network or communications security; revocation, suspension, or denial of security clearance or interim security
clearance investigations; or unauthorized use of IS and networks per para 4^.s.
AR 25-2^24 Octobor 2007

^5

23249

(12) Remove or disable all default, guest, and service accounts in ISs or network devices, and rename administrative
accounts as applicable.
(13) l^ai^taiua^d use at Ieast2sepa^ate accounts for access to uet^orl^resources,^for their privileged level
access a^d a separate general user, ^ou privileged level account for routiue procedures
(14) Review IS and network audit logs and log files, and report anomalous or suspicious information in accordance
with Section V111, Incident and Intrusion Reporting.
(1^) Monitor IS performance to ensure that recovery processes, security features, and procedures are properly
restored after an IS has been rebooted.
(1^) Monitor IS performancetoensure thatprocesses, security features, and operatingsystem configurations are
unaltered.
(17) Perform equipment custodian duties as necessary.
(1^) notify the 1AM or 1APM when a system no longer processes sensitive or classified information, or when
changes occur that might affect C^A, to obtain disposition or resolution instructions.
(1^) Ensure CM for security-relevant IS software (including ISwaming banners) and hardwareis maintained and
documented.
(20) Implement and test IS and data backup procedures for integrity.
(21) Prohibit attempts to strain or test security mechanisms or to perform network line or keystroke monitoring
without authorization.
(22) Establish audit trails, conduct reviews, and create archives as directed by the 1AM.
(23) ^illsignaPrivilegedlevel Access Agreement (PAA)anda^on-Disclosure Agreement (^DA)asaprerequisitetomaintainingtheir positions. Referencethe 1A BBPon PAA; AUP(https://informationassurance.us.army.mil).
^ ^^^^ ^^^^B^.^. Data owners will, at a minimum, provide guidance or feedback to the System Owner (SO)
conceming—
(1) The confidentiality ofintormation under the data owner^s purview.
(2) The DIACAPteam^sdecision regarding the level of classification,confidentiality,integrity,availability,encryption, and protection requirements for the data at rest or in transit.
(3) Specific requirements for managing the owner^sdata(for example, incident response, information contamination
to other system/media, and unique audit requirements).
(4) ^hetherF^smay access ISsaccreditedunderthisregulation. Accessmust be consistent with DOD, DA,and
D1A governing directives (for example, AR 3^0 10 and DCIDs 1/7 and ^/^).
^ ^^^^^^^^.^^^.^ Use of dovemmentlS and access to Covemmentnetworksisarevocableprivilege,notaright.
t^sersare thefoundationofthe DiDstrategy andtheiractionsaffectthemost vulnerableportionofthe AEI. lasers
must haveafavorablebackgroundinvestigation or holdasecurityclearance and access approvals commensurate with
the level ofintormation processed or available on the system. Users will—
(1) Comply withthe commands At^^fo^^ove^umeut ow^ed^Ssaudsigu auAt^^p^ior to o^upouaccouut
activation
(2) Complete initial and/or annual lA training as defined in the 1A training BBP
(https://informationassurance.us.army.mil).
(3) Markandsafeguardfiles,output products, and storage media per the classification levelanddisseminatethem
only to individuals authorized to receive them with a valid need to know.
(4) Protect ISs and IS peripherals located in their respectiveareas in accordance with physical security anddata
protection requirements.
(^) Practice safe network and Internet operating principles and take no actions that threaten the integrity ofthe
system or network.
(^) ^btaiup^io^ approval for the use of auy media (for example, tlS8,Cf^t^01^,ftoppydisl^)f^om the S^/
^^1^
(7) Seawall files, attachments, aud media with ^u approved audiustalledAVproduct before opeuiugafileo^
attachmeut or i^troduciug media i^to the ^S
(^) Report allknown or suspected spam,chainletters, and violations of acceptable use to the SA,IAM,or1ASO.
(^) Immediately stop using an infected IS; and report suspicious, erratic, or anomalous IS operations, and missing or
added files, services, or programs to the SA/IASO in accordance with local policy.
(10) l^ot disclose their iudividual accouut password or pass phrase autheuticators
(11) ^^vol^e password-protected screeulocl^s on your worl^tatiou after ^ot more tha^ f^miuutesof^ou use
or inactivity
(12) t^ogoff ^Ss at the end of each worl^day
(13) Access ouly that data, control i^fo^matiou, software, hardware, a^d firmware for which the user is
authorised access
(14) Access only that data that they are authorized or have a need to know.

1^

AR 25-2^24 October 2007

23250

(15) Assume only authorized roles and privileges as assigned.
(16) Users authorized Government-provided 1A products (for example, AV or personal firewalls) will be encouraged
to install and update these products on their personal systems and may be required to do so as directed by the DAA
and documented in the C&A package for any approved remote access.
d. COMSEC custodians and inspecting personnel. Execute responsibilities as required per this regulation and AR
380-40.
e. TEMPEST personnel. Execute responsibilities as required in AR 381-14.
/ Intelligence personnel. Senior intelligence officers (SIOs) or command intelligence officers (DCSINT/G2s/S2s)
will—
(1) Ensure the command statement of intelligence interest (Sll) (AR 381-10 and AR 381-20) registers requirements
for the receipt of validated intelligence adversely affecting the integrity and reliability of ISs.
(2) Provide assistance in the identification of threat factors affecting the risk management approach for implementing security safeguards.
g. Force protection officers. Execute responsibilities as required by AR 525-13.
h. Information operations officers. Execute responsibilities as required by FM 3-13.
(. OPSEC officers. The primary OPSEC vulnerability is infomiation made publicly accessible through Web sites and
Web-enabled applications. Commanders and Directors will develop and implement an OPSEC review plan as part of
their inspection programs. All content placed on a Web site will be reviewed for OPSEC sensitive information.
Additionally, execute responsibilities as required per AR 530-1.
/ Public affairs officers (PAOs). Execute lA responsibilities as required per this and AR 25-1.
k. Acquisition officers. Include lA requirements in the acquisition phases and execute responsibilities as required by
DOD 5000.2-R and NSTISSP No. 11.
/. DOIMs. Execute responsibilities per this regulation and AR 25-1.
m. DAAs (see para 5-8).
(1) The DAA w i l l fa) Be a U.S. citizen.
(b) Hold a U.S. Government security clearance and access approvals commensurate with the level of information
processed by the system under his or her jurisdiction.
(c) Be an employee of the U.S. Govemment and meet the grade requirements identified in paragraph 5-8.
(d) Complete the DAA Basics Computer Based Training prior to performing the duties of DAA.
(e) Request appointment from the CIO/G-6 for IS by name.
(f) Ensure the DAA position is designated as an IT-I, based on the duties assigned and the expected effects on the
Army mission.
(g) Meet training and certification requirements in accordance with NSTISSI No. 4012.
(h) The DAA will understand the operational need for the systems and the operational consequences of not
operating the systems. The DAA will have an in-depth knowledge of DID to drive state-of-the-art acquisition, focus a
robust training program, and institute executable policy across the 1A enterprise.
(2) The DAA will ensure the following as a minimum—
(a) Proper C&A based on systems environment, mission assurance category (MAC) level, confidentiality level, and
security safeguards in accordance with this regulation and the Interim D1ACAP.
(b) Issue written memo or digitally signed e-mail 1A C&A authorization statements (that is, interim approval to
operate (1ATO), interim authorization to test (1ATT), approval to operate (ATO), denial of authorization to operate
(DATO)), after receipt of CA recommendation.
(c) Maintain records (including use of lA tools) for all IS C&A activities under his or her purview.
(d) Accomplish roles and responsibilities as outlined in this regulation during each phase of the accreditation process
and for each IS as required.
(e) Ensure operational IS security policies are in place for each system, project, program, and organization or site for
which the DAA has approval authority.
(f) Incorporate security, C&A, and Networthiness as an element of the life cycle process.
(g) Ensure data owner requirements are met before granting any FN access to the system.
(h) Consider and acknowledge CI and criminal intelligence activities during the C&A process.
(i) Report security-related events to affected parties (for example, data owners, all involved DAAs). DAAs must
coordinate with investigative activities (for example, CCIU, RCERT) before making notifications.
(j) Assign written security responsibilities to the individuals reporting directly to the DAA (for example, lAM or an
lASO if an 1AM does not exist).
(k) Appoint a CA for each IS (or group of ISs) and network.
(I) Ensure CSLA certification of cryptographic applications occurs during the C&A process.
n. CA. Authority and responsibility for certification is vested in the Army F1SMA Senior 1A Officer (SIAO). The

AR 25-2 • 24 October 2007

17

23251

Director OIA&CNETC EST I, was appointed FISMA SIAO by the CIO/G^ and will be the single Anr^ycertifica
tion authority (see para 5 2).
^. Bf^^^^o^^^^^^^^^^a^^^^a^^^^^^r^(^CBf).(See also para5^).The Army CAwillmain^
Govemment organizations and labs, as Agents of the CA(ACA), to perform the certification activities.TheACAs,
funded by the SOs, are available to provide SOs with certification capabilities. Organizations can request appointment
as an ACA by following the process in the ACA BBP.
^ ^^.AGovemment SO will be identified for each IS used by or in support of the Army.The SO is responsible
for ensuring the security ofthe IS as longas it remains in Army inventory, or until transferred (temporarily or
permanently) to another Govemment person or organization and such transfer is appropriately documented, and
provided as an artifact to the accreditation package (see para 5 10).
^ ^^.^^^^^^^^^^^^^.^^^^.^^^^/^^^^.^ Army tenant units or activities must comply with thelArequirements of their
parent ACOM/ASCCand their supportinginstallation. Army and non-Army tenant operations must comply withthe
host installation's lA policy if they connect to the installation's information inft^astructure. Army tenant units or
activities and units basedin or under operationalcontrol(OPCON) of an ACOM/ASCC other than their parent will
comply with the lA requirements ofboth parent and host commands. Address unresolved conflicts ofIA policy per this
regulation through local command channels and RCIOs to H^DA,CIO/G6.UntilCIO/G^ resolves the conflict, the
provisions of this regulation will apply, including those pertaining to the use of gateways or intormation management
resources as pathways to connect their ISs. If the non Army tenant uses any part of the host installation infrastructure,
the installation lAM will require the use ofCM controls consistent with the installation's information management and
CM process. All tenant activities will—
(1) Identify and coordinate all systemupgrades,fleldings,pilots,tests, and operations of newor upgraded systems
withtheinstallation 1AM,DAA,andD01M.
(2) Identily ISs and provide the approved C&A documentation to the installation lAM.
(3) Identify their security support requirements to the installation lAM and provide technical assistance, as required.
(4) Identity appropriate 1A personnel to the installation 1AM.
(5) Support installation lA efforts and requirements, and identify constraints in sufficient time to permit coordination
and preparation of a viable IS security solution.
(6) Coordinate and conduct vulnerability assessments or compliance scanning, and report completion and results as
required.

Chapters

Intorn^ation A^^urance policy
Section I
Oeneral policy
^ 1 . policy o^er^lew
Thischapterprovidespolicy to implement lA requirementsdevelopedtorespond tothe lA challenge.asdefined in
Public Uaw, National Security, DOD, and Army directives, policies, and regulations.
a. Implement all security analyses, security engineering, and security countermeasures to protect ISs within the
framework of risk management and adherence to public laws, DOD directives, and Army regulations.
^ Defineasecurity policy andaprotectionprofilefor ISs during concept development.Consider security requirements based on these items throughout the IS life cycle.
^ The ISdeveloper willensure the early andcontinuousinvolvementofthefunctionalproponent,threatandrisk
assessors,users,1A personnel,data owners,certification authorities, andDAAsin defining andimplementing security
requirements of the IS.
^. Statements of security requirements will be included in the acquisition and procurement specifications and
contracts for ISs, products, and services. Purchases will be in accordance with Army contracting and acquisition
guidelines. Blanket Purchase Agreements (BPAs), and lA approved products. NIST Special Publication 800 64 RE^.1
may be referenced for specification, tasks, and clauses that are used in writing contracts. The statements will reflect an
initial risk assessment and will specify the required protection level per DODD 8500.1 and DOD1 8500.2.
^. The ACOMs,ASCCs,DRUs, direct reporting PMs, or functional proponents will not field, and commanders will
not accept, systems—
(1) That do not meet minimum security standards stated in the acquisition and procurement specifications.
(2) For which a C&A authorization has not been obtained ftom the appropriate DAA.
^ Commanders are responsiblefor ensuring that ISs under their purview are operatedinamanner consistent with
thesystem C&A package and this regulation.

AR 2 5 - 2 ^ 2 4 October 2007

23252

cryptography,and the assurance properties as specified in NSA-endorsed medium robustness protection profiles or the
Protection Profile Consistency Guidance for medium robustness.
(3) ^^.^^^^ ^o^^.^^^^.^.^. Basic robustness is the security services and mechanisms that equate to best commercial
practices.Basic robustness technical solutions require, ataminimum,authenticated access control, N1ST approved key
management algorithms,NISTFIPS-validatedcryptography, and the assurance properties specifiedinNSA-endorsed
basic robustness protection profiles or the Protection Profile Consistency Guidance for Basic Robustness.
^ ^^^^^^^^^a^.^^.^^^^^.:^^^.^^^^^ Theappropriatelevelofprotectionforeachfunctional security requirement will
be determined usingacombination of the mission assurance category,level of confidentiality,and level of robustness.
(1) Each ISwillbe reviewed against the mission assurance category definitions providedinDODI 8500.2,Enclosure 2, and assigned to a mission assurance category.
(2) Each IS will be assigned a confidentiality level based on theclassification or sensitivity ofthe information
processed, stored, or transmitted.
(3) DeterminetheapplicablelAcontrolsfrom D0D1 8500.2.
(4) The identified controls for the level of total system exposure serve as the baseline lA requirements for C&Aor
reaccreditation and will be reassessed and revalidated every 3 years as a minimum.
I^lnlmum Information assurance requirements
All required risk analyses will evaluate andidentify possible vulnerabilities and adverse securityeffects on associated
ISs and networks. Although manual procedures are acceptable when an automated safeguard is not feasible, lA
personnel will embed automated security safeguards into the design and acquisition of ISs to ensure a secure
infrastructure.
a. ^^^^^^^^^^^^^^^^^^^.^ In addition to the prohibited activities listed in AR 25 1, the following activities are
specifically prohibited by any authorized user on a Govemment provided IS or connection:
(1) Use of ISs for unlawful or unauthorized activities such as file sharing of media, data, or other content that
is protected by l^ederal or state law, including copyright or other intellectual property statutes
(2) fnstallationof software, configuration of an IS, or connecting any ISs toadistributed computer environment (DCE), for example the SET1 project or the human genome research programs
(3) modification ofthe fSor software, useof it in any manner other than its intended purpose,or adding
user-configurable or unauthorized software such as, but not limited to, commercial instant messaging, commercial Internet chat, collaborative environments, or peer-to-peer client applications. These applications create
exploitable vulnerabilities and circumvent normal means of securingand monitoringnetworkactivity andprovidea
vector for theintroductionof malicious code,remote access, network intrusions or the exfiltrationofprotecteddata.
(4) Attempts to strain, test, circumvent, or bypass networl^ or IS security mechanisms, or to perform networl^
or 1^eystro1^emonitoringRCERTs,RedTeam, or other ofl^cial activities, operating in their otflcial capacities only,
may be exempted from this requirement.
(5) Physical relocation or changes to configuration or networl^ connectivity of IS equipment
(6) Installation of non-Government-owned computingsystems ordevices without prior authorization ofthe
appointed DAA including but not limited to USB devices, external media, personal or contractor-owned laptops,
and l^CDs
(7) Release, disclose, transfer, possess, or alter information without the consent of the data owner, the original
classificationauthority(OCA)asdefinedby AR 380 5,theindividuaFssupervisorychain ofcommand, Freedomof
Information Act (FOIA) official. Public Affairs Office, or disclosure officer^s approval.
(8) Sharing personal accounts and authenticators (passwords or PINs) or permitting the use of remote access
capabilities through Government provided resources with any unauthorized individual
(^) t^isabling or removing security or protective sofrware and other mechanisms and their associated logs
from IS.
^ B^^^^^^^^a^^^^. ISs and networks will be accredited in accordance with interim DOD and Army D1ACAP
documentation and Army supplemental networthiness guidance.
^. Bf^^^.^.^ ^o^^^^^. lA personnel will implement system and device access controls using the principle of least
privilege(POEP) via automatedor manual meanstoactively protectthe IS from compromise, unauthorized useor
access, and manipulation. lApersonnel will immediately report unauthorizedaccessesorattemptstotheir servicing
RCERT in accordance with Section ^111, Incident and Intrusion reporting. Commanders and DAAs will—
(1) Enforce users^suspensions and revocation for violations of access authorization or violation in accordance with
para 3 3^(13).
(2) Develop the approval processes for specific groups and users.
(3) validate individual security investigation (or approve interim access) requirements before authorizing IS access
by any user.
(4) verify systems are configured to automatically generate an auditable record or log entry for each access granted
or attempted.

22

AR 25-2 • 24 October 2007/RAR 23 March 2009

23253

(5) ^alidatethat systems identify usersthrough theuser^s useof uniqueuseridentifications(USERIDs).
(6) validate that systems authenticate users through the use of the CACasatwo-factor authentication mechanism.
The CAC has certificates on the integrated circuit chip (ICC), and will be used as the primary user identifier and access
authenticator to systems.
(7) validate system configurations to authenticate user access to all systems withaminimumofaUSERID and an
authenticator whenthe systems areincapable of CACenablementuntilthese are replaced. An authenticator may be
something the user knows (password),somethingtheuser possesses (token),oraphysicalcharacteristic(biometric).
The most common authenticator is a password.
(8) verify that system configurations use password-protected screen savers, screen locks, or other lockout features to
protect against unauthorized access ofISs during periods oftemporary non-use.Ensure such mechanisms automatically
activate when a terminal is left unattended or unused. The DOD activation standard is established at 15 minutes.
Establishashorter period when IS are used inamultinational or coalition work area. In instances where the unattended
lockout featurehindersoperations,for example; standa1onebriefingpresentationsystems,medical triage devices,or
operating room systems status; theDAA and SO can approve longer timeouts as an exception only whenitimposesa
minimum of risk, other control mechanisms are enabled to mitigate these risks, and documented in the C&A package.
However the timeout feature will never be disabled and the systemwill never remainunattended during this extended
use period. Exceptions will never be granted for matters of convenience or ease of use.
(^) validate that systemconfigurations prohibit anonymous accesses or accounts (for example,Studentl,Student2,
Patroni, Patron2, anonymous).
(10) Prohibit the use of generic group accounts.Permit exceptions only onacase-by-case basis when supporting an
operational oradministrativerequirement such as watch-standingorhelpdeskaccounts, orthatrequirecontinuity of
operations, functions,orcapabilities. lAMs will implement proceduresto identify andaudit users ofgroupaccounts
through other operational mechanisms such as duty logs.
(11) verify that system configurations limit the number of user failed logon attempts to three before denying access
to (locking) that account, when account locking is supported by the IS or device. If IS supported, the system will
prevent rapid retries when an authenticator is incorrectly entered and gives no indications or error messages that either
the authenticator or ID was incorrectly entered (for example, implement time delays between failed attempts).
(12) verify that system configurations generate audit logs, and investigate security event violations when the
maximum number of authentication attemptsis exceeded,the maximum number of attempts from onelSis exceeded,
or the maximum number of failed aftempts over a set period is exceeded.
(13) Reinstateaccessesonly after the appropriate1A(forexample,SA/NA)personnelhave verified the reasonfor
failed log-on attempts and have confirmed the access-holder^s identity. Permit automatic account unlocking, for
example, after an established time period has elapsed,as documented in the C&A package and approved by theDAA,
based on sensitivity of the data or access requirements.
(14) If documented in the C&A package and authorized by the DAA, time based lockouts (that is, access is
restrictedbasedontime or access controlsbasedon IPaddress,terminalport,or combinations of these) andbarriers
that require sometime to elapse to enable bypassing may be used. In those instances the DAA will specify, as a
compensatory measure, the following policies:
Implement mandatory audit trails to record all successful and unsuccessful log-on attempts.
Within 72 hours of any failed log-on and user lockout, lA personnel will verify the reason for failure and
implement corrective actions or report the attempted unauthorized access.
The SA will maintain a written record of all reasons for failure for 1 year.
(15) Enforce temporarydisabling of all accounts for deployed forces on garrison networks unless the accounts are
operationally required.
(16) Create and enforce procedures for suspending, changing, or deleting accounts and access privileges for
deployed forces in the event of capture, loss, or death of personnel having network privilege level access.
(17) Create and enforce access auditing, and protect physical access control events (for example, card reader
accesses) and audit event logs for physical security violations or access controls to support investigativeefforts as
required.
^.

^ ^ ^ ^ ^ ^

^^^^.^.^

^ ^ ^ B ^

(1) Systems being used for remote access must meet security configurations to include lA^M, certification and
accreditation standards, and will employ hostbased security,for exampleafirewall and IDS,withA^software before
authorization to connect to any remote access server. Security configurations will be reviewed quarterly.
(2) Encrypt log in credentials as they traverse the network as required for the level of information being accessed or
required for need to know separation.
(3) Encrypt allRAfor network configuration or management activities regardless ofclassificationlevel,device,or
access method.
(4) Users will protect RA ISs and data consistent with the level ofintormation retrieved during the session.

AR 25-2^24 October2007

23

23254

(5) Disable remote device password save-ft^nctions incorporated within software or applications to prevent storage
of plain text passwords.
(6) Remote access users will read and sign security and end user agreements for remote access annually as a
condition for continued access.
^.

^ ^ ^ ^ ^ ^

^^^^.^.^

.^^^^^^.^

^^B^.^.^).

(1) Secure remote terminaldevices consistent with the mode ofoperation and sensitivityoftheinformation and
implement non-repudiation measures when necessary.
(2) Any IS that provides RAS capabilities will employ host-basedfirewallsand intrusion detection systems to detect
unauthorized access and to prevent exploitation of network services.
(3) Any RAS being accessed remotely will employa^^TimeOut^^ protection feature that automatically disconnects
the remote device after a predetermined period of inactivity has elapsed, dependent on classification level of the
information, but no longer than 10 minutes.
(4) Remote access users will be required to authenticate all dial-in operations withauniqueUSERID and password,
compliant with the remote authentication dial-in user system (RADIUS) standard.
(5) All RAs will terminate atacentrally managed access point located withinademilitarized zone (DM^) that is
configured to log user activities during a session.
(6) Prohibit all RA (that is, virtual privatenetwork(^PN),dia1in)to individual ISs withinanenclave(that is,
behind the DM^ firewall).
(7) DOIMs and lAMs must ensure all remote access servers (RASs) undergo CM and C&A processes.
(8) Stand alone dial-back modems and modem systems that authenticate using RADIUS are the only allowable dialin modems.
(^) Physical security for the terminal will meet the requirements for storage of data at the highest classification level
received at the terminal and must be implemented within a restricted access area.
(10) Data between the client and theRASwillbe encrypted to provide confidentiality, identification,non-repudiation and authentication of the data. The CAC provides the user with an official certificate.
(11) Approved telework or telecommuting access will be in accordance with established D01M, RCIO, and
NETCOM/^th SC (A) C&A access procedures from aGovemment provided system only. Ad hoc telework access
(defined as one-time, informal, or on an infrequent basis) will be through existing and approved extemal access
methods or portals such asTerminal Server Access Control System (TSACS) or the Army l^nowledge Online (AI^O)
Website
(12) Outsidethe continental UnitedStates (OCONUS)teleworkprocedures and authorization willbeapprovedby
the DAA and RCIO on a case-by-case basis and documented in the C&A package.
(13) Audit all RAS connections at a minimum weekly.
(14) Review RAS devices biweekly for security configuration, patches, updates, and lA^M compliance.
^ C^^^^^a^^^^ ^^^^^^B^^^^
The following policy will be the minimum used for the CM of all
systems:
(1) All CM plans will includeamaintenance and update strategy to proactively manage all IS and networks with the
latest security or application updates.While lA^M is part ofaCM strategy,it is not all-inclusive for every IS in use in
the Army. All ISs will have a vulnerability management strategy fortestingand maintainingpatches, updates, and
upgrades.
(2) Hardware and software changestoanaccredited IS, with anestablished baseline, will be effected throughthe
CM process.
(3) The CCB or the CMBforasite must approve modifying or reconfiguring the hardware of any computer system.
Hardware will notbeconnectedtoany system or network without theexpress written consent ofthe 1AM andthe
CMB or CCB.In the absence ofaCCB or CMB,the appropriate commander or manager will provide the consent on
the advice of the cognizant 1A official.
(4) Modifying, installing, ordownloadingof any softwareonany computer system may affect system C&A and
must be evaluated and approved by the 1AM with the local CMB, CCB, and DAA.
(5) Configuration management controls, including version controls,willbe maintained on all software development
efforts; RDT&Eactivities; fo11ow-ontestandevaluation(FOT&E)activities; andotherrelatedtestsby thesoftware
designer. A C M ^^baselineimage^^willbe created,documented,keptcurrent,andmaintainedbynetworkandsystem
administration personnel for all ISs within their span of control. Exceptions to this baseline image will be documented
in the C&A package and approved by the DAA.
(6) The minimum baseline configuration for ISs will be the published Security Technical Implementation Guide
(ST1G) requirementsorthe common criteriaprotectionprofiles for lA products, as available or supplemented and
published by DOD and NETCOM/^thSC (A), with any changes documented. ST1GS are located at: http://iase.disa.mil/
stigs/index.html.
(7) Prohibit default installations of ^^out of the box^^configurations of COTSpurchasedproducts.COTSpurchased
products willrequiresystemCMand lA^Mcomplianceasaminimum.Comprehensivevulnerability assessments of

24

AR 25-2^24 October 2007

23255

the test IS will be conducted and documented before and after installation of any COTS products under consideration
for CM review or approval.
(8) Upon acceptance for operational use (whether developmental, GOTS, or COTS), keep software under close and
continuous CM controls to prevent unauthorized changes.
(^) ISs must meet minimum levels of total system exposure. See paragraph 4 ^ and DODI8500 2 to establish 1A
baseline requirements.
^. Bf.^.^^.^.^^^^^^.^ Commanders will verify that lApersonnel conduct initial and continual assessments to detect IS and
network vulnerabilities using approved tools, tactics, and techniques to facilitate the risk management process and to
ensure compliance with network management,CM,1A^M requirements, and security policies and procedures.Commandersand 1A personnel will ensurethatall networksandnetworked ISsundergo aselfassessed, vulnerability
assessment scan quarterly.Prohibit the use of commercial scanning services or vendors without the C10/G6^s chief
information security officer^s (C1S0) approval.
^. B^^^^^7^^^. SAs will configure ISs to automatically log all access attempts. Audits of IS will be either automated or
manual means. SAs will implement audit mechanisms for those ISs that support multiple users.
(1) Use audit servers to consolidate system audit logs for centralized review to remove the potential for unauthorized
editing or deletion of audit logs in the event of an incident or compromise.
(2) Commands.organizations, tenants, activities, and installations will support centralized audit server implementations in the enterprise.
(3) Centralized audit servers logs will be maintained for a minimum of 1 year.
(4) Conduct self inspections by the respective SA/NA or lA manager.
(5) Enable and refine default IS logging capabilities to identify abnormal or potentially suspicious local or network
activity
^ ) Investigate all failed login aftempts or account lockouts.
Maintain audit trails in sufficient detail to reconstruct events in determining the causes of compromise and
magnitude ofdamageshouldamalfunctionorasecurityviolationoccurs. Maintain systemauditlogslocally for no
less than ^0 days.
Retain classified and sensitive IS audit files for I year (5 years for SCI systems, depending on storage
capability).
Provide audit logs to the ACERT,ArmyGlobal Network Operations and Security Center (AGNOSC),I^E, or
CI personnel to support forensic, criminal, or counter intelligence investigations as required.
Reviewlogs and audit trails ataminimum weekly, moreftequently if required,and take appropriate actions.
^ C^^^^^^^^^^^^a^^^^^. A contingency plan is a plan for emergency response, backup operations, transfer of
operations, and post disaster recovery procedures maintained by an activity as a part of its lA security program.
Commanders will create and practicecontingency plans foreach IS (asingle IS or local areanetwrok(EAN)) for
critical assets as identified by the data owner or commander to support continuity of operations planning (COOP). See
DAPam25 I 2for additional guidance and procedures for developing contingency plans.Exercise contingency plans
annually.
^ ^^^^
(1) Implement safeguards to detect and minimize unauthorized access and inadvertent, malicious, or non-malicious
modification or destruction of data.
(2) Implement safeguards to ensure that security classification levels remain with the transmitted data.
(3) DAA will identify dataowners foreachdatabaseon their networks. Only theoriginal classificationauthority
(OCA) is authorized to change the data classification.
(4) DAA willdevelop and enforce policies andprocedures to routinely or automatically backup, verify,and restore
(as required) data, ISs, or devices at every level. These policies and procedures will be captured in the C&A package.
(5) Use data or data sources that have verifiable or trusted information. Examples of trusted sources include, but are
not limited to, information published on DOD and Army sites and vendor sites that use verified source code or
cryptographic hash values.
(6) Protect data at rest(forexample,databases,files) to the classificationlevelof the informationwith authorized
encryption and strict access control measures implemented.
^. C^^^^^^a^^. The C&Apackagewillbe available tothe siteassignedlASO for thelife of eachlSorEAN,
includingoperational, prototype, test,ordevelopmental systems. ThisC&A package will includeataminimum the
System Identification Profile (SIP), Scorecard, and plan of action and milestones (POA&M).
^. BBI ^^^^^^^^ a^^^^.^^^^^^. All security-related COTS hardware, firmware, and software components (excluding
cryptographic modules) required to protect ISs will be acquired in accordance with public law and will have been
evaluated and validated in accordance with appropriate criteria, schemes, or protection profiles (http://www.niap.nist.gov/) and this regulation. lA products listed on the lA Approved Products Eist (APE) available on the lA
website, will beevaluated/selectedfirst,and then procuredthrough Army Computer Hardware, Enterprise, Software
and Solutions contract vehiclesbefore other lAproductsareprocured. For PEO/PM^s,theCSEA BPA requirements

AR 25-2 • 24 October 2007/RAR 23 March 2009

25

23256

only applies to the procurement of COMSEC devices. All GOTS products will be evaluated by NSA or in accordance
with NSAapproved processes. NETCOM/^thSC(A)andCIO/G^ may approve exceptions to lA products evaluations
when no criteria, protection profile, or schema exists or is under development, and the removal or prohibition of such
an lA product would significantly degrade or reduce the ability of personnel to secure, manage, and protect the
infrastructure.
^ /^^^^^^^^^^^^.^^^^^^^^^^^^^^.^ Commanders will verify that allcomputersunder their control, independently,
prominently andcompletely display theNoticeandConsent Banner immediately upon users^ authentication tothe
system, including, but not limited to, web, ftp, telnet, or other services access.
(1) General Notification: Army users of DOD telecommunications systems or devices are advised that DOD
provides such systems and devices for conducting authorized use. Users are subject to telecommunications monitoring,
including their personal communications and stored information.
(2) Using Govemment telecommunications systems and devices constitutes the user^s consent to monitoring.
(3) Users will beadvised that there is no expectation of privacy while using ISs or accessing Army resources.
(4) The user must take a positiveaction toaccept the terms ofthe noticeand consent waming banner before a
successful logon is completed.
(5) Post appropriate warning banners and labels in accordance with this regulation.
(6) The followingaccess warning banner replaces the waming banner in AR 380 53 and will not be modified
further. The banner to be posted on Army networks, systems, and devices will state—
(7) ^^^OU ARE ACCESSINGAUS GOVERNMENT (USG) INFORMATION SYSTEM (IS) THAT IS PRO
^IDED FOR USG AUTHORI^ED USE ONE^.^^ By using this IS (which includes any device attached to this IS), you
consent to the following conditions: The USG routinely intercepts and monitors communications on this IS for
purposes including, but not limited to, penetration testing, COMSEC monitoring, network operations and defense,
personnel misconduct (PM), law enforcement (EE), and counterintelligence (CI) investigations. At any time, the USG
may inspect and seizedatastoredon this IS. Communications using, ordatastored on, this IS are not private, are
subject to routine monitoring, interception, and search, and may be disclosed or used for any USG-authorized purpose.
This IS includes security measures(e.g., authentication and accesscontrols) to protect USG interests—not for your
personal benefit or privacy. Notwithstandingtheabove, usingthis IS does notconstituteconsentto PM, EE, or CI
investigative searching or monitoring ofthe content ofprivileged communications, or work product, related to personal
representation or services by aftomeys, psychotherapists, or clergy, and their assistants. Such communications and work
product are private and confidential. See User Agreement for details.
(8) For those personal computing devices such as Blackberries and other PDAs that have technical limitations to the
full banner, then the only approved solution will be: ^^Fve read & consent to terms in IS user agreem^t.^^
(^) For media devices, services, protocols, and other limited text input requirements other than PDA devices
requiring access, such as routers,firewalls, bannered access ports, and soforth.This banner will be ^^SubjecttoArmy
Waming banner in AR 25-2, 4 5^(7).^^
^. 1^^^^^.^^^^^^^^^^^^. Implement the virus protection guidance provided below on allISs and networks, regardless of
classification or purpose—
(1) Users and SAs will scan all files, removable media, and software, including new ^^shrink-wrapped^^ COTS
software,with an installed and authorizedA^product before introducing them onto an IS or network. Files, media and
software found to be infected with a virus will be reported by users to the SA.
(2) To minimize the risks of viruses, implement the following countermeasures:
SAs will configure alllSswithacunent and supportable version of theA^software configured to provide real
time protection from the approved products list with automated updates and reporting enabled.
lA personnel should take the multilevel approach to virus detection by installing one A ^ package on the
workstations and a different A ^ package on the servers.
SAs will update virus definitions at a minimum weekly, or as directed by the ACERT for immediate threat
reduction.^irus definition availability is based on vendors^capabilities.lApersonnel will institute automated antivirus
definition updates as published or available from authorized DOD or Army sites.
(3) lA personnel will train users to recognize and report virus symptoms immediately.
(4) lAMs will implement virus-reporting procedures to support DOD and Army reporting requirements.
^ ^^^^/^ ^^^^
(1) Mobile codeis executable software,transferredacrossanetwork,downloaded,andexecutedonalocalsystem
without notification to, or explicit installation and execution by, the recipient.
(2) Mobile code has the potential to severelydegradeoperationsif improperly usedor controlled.The objective of
the mobile code security policy is to deny untrusted mobile code the ability to traverse the Army enterprise. As a
minimum, the Army mobile code mitigation policy will be implemented to support the DOD mobile code policy.
Untrusted mobile code will not be allowed to traverse the enterprise unless NETCOM/^th SC (A) CCB-approved
mitigating actions have been emplaced.
^. ^^^^^^^^

26

AR 25-2 • 24 October 2007/RAR 23 March 2009

23257

(1) layering isaprocess of implementing similar security configurations or mechanisms at multiple points in an IS
architecture. Doing so eliminates single points of failure, provides redundant capabilities, increases access granularity
and auditing, and implements an effective computer or network aftack detection and reaction capability.
(2) The Army enterprise lA security DID structure requiresalayering of security policies, procedures, and technology, including best practices such as redundant capabilities or use ofaltemative operating systems, to protect all network
resources within the enterprise. Eayered defenses at the boundaries, for example, include, but are not limited to using
inbound and outbound proxy services, firewalls, IDSs, IPSs, and DM^s.
^ ^^/^^^^^^. Filtering policies will block ingress and egress services, content, sources, destinations, ports, and
protocolsnotrequiredorauthorizedacrosstheenterpriseboundary. Router and firewallaccess control lists(ACEs)
provide a basic level of access control over network connections based on security or operational policy.
(1) Filtering at the enterprise boundary is the primary responsibilityoftheNETCOM/^thSC(A)TNOSCsusing
tools and techniques applied at the enterprise level.
(2) At all levels subordinatetoNETCOM/^thSC(A),filteringpoliciesandtechnologywillbeimplemented and
layeredthroughoutthearchitectureandenforcedatallcapabledevices. Audit and system ordevicegeneratedevent
logs will be provided to NETCOM/^th SC (A). These policies should be complementary.
(3) Filtering products and techniques are intended to proactively reduce ingress and egress security threats to
enterprise systems and information without targeting specific individuals.The most common threats are associated with
malicious content, misuse, security policy violations, content policy violations, or criminal activity Threat mitigation
policies will beincorporated,configured,andmonitoredtoreduceor identify these threats and include,butarenot
limited to, ACE configuration on routingdevicestoprevent access to unauthorizedsites, A^ installations,cacheor
proxy servers (to maintain connection state), firewalls, mail exchange configurations (for example, auto-deletion of
aftachments), network monitoring software such as IDS or Intrusion Prevention System (IPS) configured to terminate
suspicious traffic, content management, or web filtering applications.
^ Bf^^

(1) Commanders and Directors will implement an AUP for all useraccesses under theircontrol (seethe sample
AUP at appendix B).
(2) Users will review and sign an AUP prior to or upon account activation. Digital signatures are authorized.
(3) lA personnel will maintain documented training records.
(4) DOD policy states that Federal Govemment communication systems and equipment (including Govemmentownedtelephones,facsimile machines,electronicmail,intemet systems, andcommercialsystems),whenuseofsuch
systems and equipment ispaidfor by theFederalGovemment,willbeforofficialuse and authorizedpurposes only.
(5) Official use includes emergency communications and communications necessary to carry out the business ofthe
Federal Govemment. Official use can also include other use authorized by a theater commander for Soldiers and
civilian employees deployed for extended periods away from home on official business.
(6) Authorized purposes include brief communications by employees while they are traveling on Govemment
business to notify family members ofofficial transportation or schedule changes. Authorized purposes can also include
limited personaluseestablishedby appropriate authoritiesunder the guidelines of the .loint EthicsRegulation(DOD
5500 7 R)
(7) Certain activities are never authorized on Army networks. AUPs will include the following minimums as
prohibited. These activities include any personal use of Government resources involving: pomography or obscene
material(adultorchild);copyright inft^ingement(suchas the sharingofcopyright material by meansofpeer-topeer
software); gambling; the transmission of chain letters; unofficial advertising, soliciting, or selling except on authorized
bulletin boards established for such use; or the violation of any statute or regulation.
^^^^^^^/^^ ^^r^^^^.
(1) Network monitoring includes any ofanumber of actions by lApersonnel aimed at ensuring proper perfom^ance
and management. When any of these monitoring activities involve intercepting (capturing in real time) the contents of
wireorelectronic communications, they must fall within the limitsofthe serviceprovider exception tothe Federal
wiretap statute.The service provider exception allows system and network administrators to intercept, use, and disclose
intercepted communications as long as the actions are conducted in the normal course ofemployment and the SA/NA
isengagedinanactivitythat isnecessary tokeepthe service operationalortoprotecttherights or property ofthe
service provider. Therefore, lA personnel must consult with legal counsel to ensure that their activities involving
systems management and protection are properly authorized.
(2) lApersonnel performing ingress and egress network monitoring or filtering activities are authorized to use CIO/
G^-approved automated monitoring tools maintained and configured by NETCOM/^thSC(A)as network devices to
aid in the performance and management. It is important to recognize that the SA/NA does not have unlimited authority
in the use ofthese network monitoring tools.The approved tool may contain technical capabilities beyond those tasks
for which the tool wasapproved; assuch the lA personnel must ensure that approvedtools are usedonly for their
intended purpose.

AR 25-2^24 October 2007

27

23258

(3) 1A personnel will not useunapproved 1A too1s,use lAtoolsfor unapproved purposes,or misuseautomatedlAtools.^iolations will be reported through appropriate command channels to the CIO/G^. Exceptions to the
configuration ofthesedevices will beapproved on acase-by-casebasisby NETCOM/^th SC (A).
(4) In general terms, lApersonnel and SAs/NAs do not engage in blanket network monitoring of intemal communications. However, the Army reserves the right at any time to monitor, access, retrieve, read, or disclose intemal
communications whenalegitimate need exists that cannot be satisfied byother means pursuant to para4 5^,below.
(5) As a matter of normal auditing, SAs/NAs may review web sites logs, files downloaded, ingress and egress
services and similar audited or related information exchanged over connected systems. Supervisors and managers may
receive reports detailing the usage ofthese and other intemal information systems, and are responsible for determining
that such usage is both reasonable and authorized.
(6) Asamafter of normal auditing,SAs/NAsmay store all files andmessagesthroughroutinebackupstotape,
disk, or other storage media.This means that information stored or processed,even ifauser has specifically deleted it,
is often recoverable and may be examined at a later date by SAs/NAs and others permitted by lawful authority.
(7) SA/NAs may provide assistanceto Army supervisory and management personnel, under lawful authority, to
examine archived electronic mail, personal computer file directories, hard disk drive files, and other information stored
onlSs.Thisinformationmay include personaldata. Such examinations are typically performed to assure compliance
with intemal policies; support the performance of administrative investigations; and assist in the management and
security of data and ISs.
(8) WhenlApersonnel discover information during the course of their normal activity that indicatesaviolation of
acceptable use or a possible criminal offense, they will immediately report the finding to their Commander. The
commander will immediately report known or suspected criminal activity to EEand will consult with legal counsel
concemingactivities that appear merely to violateacceptable use. lA personnel will retain and provide information
related to the matter to EE when required.
(^) ^ i t h the exceptions of the SA/NA as identified below. Army personnel and contractors are prohibited
from browsing or accessing other usersemail accounts
(10) The SA/NA mayonly intercept, retrieve,or otherwise recover an e-mail message and any aftachments thereto,
only under the following circumstances:
^ With consent (expressed or implied) of a party tothe communication involved.
In response to a request for technical assistance from:
^ EE/CI personnel pursuant to a properly authorized EE/CI investigation.
2. A supervisor as part of a non-investigatory management search in accordance with paragraph 4 5^, below.
An investigating officer pursuant toaproperly authorized administrative investigation (for example,apreliminary
inquiry underRulefor CourtsMartial 303,aninformal investigation under AR 15^,orapreliminary inquiry under
AR 380 5)
^. Information systems security monitoring personnel pursuant to properly authorized IS security monitoring
activities.
Inspector General personnel pursuant to an authorized inspection, investigation, or inquiry.
(11) The SA/NA may remove anye mail,file, or aftachment that is interfering with the operation ofan ISwithout
consent of the originator or recipient. The SA/NA will notify the originator and recipient of such actions.
(12) The SA/NAis not authorized to use techniques or software to penetrate or bypass user^sinformation protections (for example, content restrictions or read-only protections used to maintain or enforce document integrity,version
control, or need to know enforcement).
^. ^^^^^^^^^^ .^^^^^/^ In the absence of the user (for example, TD^, extended hospital stay, incapacitation,
emergency operational requirement), only the SA/^A is authorized limited access to the user^s files to support
administrative management searches to provide the requested information as required for official purposes. When such
access is requested, the SA will—
(1) Brief the supervisor as to the limits of accessing the user^s data files.
(2) Eimit the scope ofthe authorized search to thosefilesreasonably related to the objective ofthe search (that is, email access would not be reasonable when searching for a word document file).
(3) Eimit the search to the time necessary to locate the required data in the most relevant file location.
(4) Inform the individual of requested file access as soon as possible after such requests, and document this access
in a memorandum.
(5) SAs/NAs will not grant unrestricted supervisory access to individual information, data files, or accounts.
(6) SA/NAs will not access individual information or data files unless conducting a management search, an
authorized administrative search, or supporting a EE/CI authorized investigation.
(7) SA/NAsmay conduct an authorized investigative or management searchofassignedlS uponan individuals^
termination of employment, death, or other permanent departure from the organization to retrieve data and files
associated with the organizational mission.

26

AR 25-2^24 October 2007

23259

Identification requirements when dealing with others through oral,wriften, and electronic communications, such
as e mail.
^ Department ofthe Army employees or contractors who are FNs and are direct or indirect hires, currently
appointed in lA positions, may continue in thesepositionsprovided they satisfy theprovisionsofparagraph4 14,
DODD 8500.1,DODI 8500.2,and DOD 5200.2 R; are under the supervision of an lAM who isaU.S.citizen; and are
approved in writing by the DAA and captured in the C&A package.
FNs assigned into IT positions will be subject to the same (or equivalent) vetting as U.S. citizens.
^. FNs may hold or be authorized access to IT II and IT lllpositions provided the required background investigation has been completed or favorably adjudicated.
7. Additionally,an FN may be assigned to an IT Iposition only after the DAAwho owns the system and the data
owner who owns the information signawaiver and the assignment has been approved by the ClO/G 6.The approvals
will become part of the C&A package.Sign and place the waiver in the individuaFssecurity file before requesting the
required background investigation. The required background investigation must be completed and favorably adjudicated
before authorizing IT I access to DA systems/networks.
^. Do not assign FNs to IT-I, IT-II, or IT III positions on an interim basis beforeafavorable adjudication of the
required personnel security investigation.
^. Generally, an FN or official representative is not authorized access to the U.S. controlled SIPRNET terminal
workspace.If an authorized foreign official or national working ataU.S.Army site hasarequirement for accessing the
SIPRNET,the commander will submit an exception to policy through the DAA to the RCIO lAPM,to be forwarded to
the H^DACIO/G^, and reviewed by the DCS,G2Foreign Disclosure Directorate prior to disposition.CIO/G^ will
coordinate the request with the Army staff and forward toDISA.These requests willbe staffed with the presumption
ofdenial. Apply the procedures of this section after DISA^sapproval and any additional guidance provided by DISA
on the connection process for FNs. E-mail signature blocks will be automatically generated for all FNs, and include the
foreign individuaFs nationality and position. The approvals will become part of the C&A package.
Sectional
Information systems l^edia
^ 1 6 . protection requirements
^ All IS equipment and facilities used for processing, handling, and storingclassifieddata will beoperatedand
secured where applicable pertheDCID 6/3, AR 380 5, this regulation, or.lointDODIISCryptologic SCI Information
Systems Security Standards (.IDCSISSS).
^ All Army personnel and contractors willmark, ship, store,process, and transmit classified or sensitiveinformation in accordance with AR 380 5.
^. Control ISs containing non-removable, non-volatile media used for processing classified information.
^. Commanders, Directors, and lA personnel will verify procedures and train users, administrators and security
personnel in processes for spillage incidents of higher-level or classified information to a lower-level IS.
^. SAs will configure ISs to apply security or handling markings automatically when possible or available.
^ SAs will configure ISs to display the classification level on the desl^top or login screen (for example,
wa11paper,sp1ashscreen) whenthe device is1oc1^ed,theuser is loggedoff, or thefSisusedin spanning multiclassification nerworl^s through the use of a f ^ ^ l ^ device
^ All Army personnel and contractors will not transmit classified information over any communication system
unlessusingapprovedsecurity procedures andpracticesincluding,encryption,secure networks, secure workstations,
and ISs accredited at the appropriate classification level.
^ 1 7 . I^abellng, marl^ing, and controlling media
a. Unless write-protectedor read-only, allpersonnelwillprotectandclassif^mediainsertedintoasystem at the
highest level thesystem isaccredited toprocessuntil thedataormediaisreviewedanddowngradedby the lASO.
^ Allpersonnel will clear removable media before reusing inISs operating at the same or higher protectionlevel.
^. All personnel will mark and control all media devices, peripherals, and ISs as follows:
(1) TS or SCIor intelligence data per DCID 6/3, DCID l/7and .IDCSISSS as applicable.
(2) Classified media per AR 380 5 requirements.
(3) FOUO media per AR 25 55 requirements.
(4) Privacy Act media per AR 340 21 requirements.
(5) NATO information per AR 380 5 requirements.
^. All personnel will mark andcontrol themediaor IS afterdetermination of theclassification level ofthedata
placed onthe media. Implement media accountability procedures based on the type of media and the classification of
the data as required above.

AR 2 5 - 2 ^ 2 4 October 2007

37

23260

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

Figure B-1. Acceptable use policy

62

AR 25-2 • 24 October 2007

23261

UNITED STATES OF AMERICA
Government Motion
to Take Judicial Notice
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Enclosure 2
3 August 2012

23262

Army Regulation 380-5

Security

Department of
the Army
Information
Security
Program

Headquarters
Department of the Army
Washington, DC
29 September 2000

UNCLASSIFIED

23263

have confidence in the sharing of information with other agencies, the national, DOD, and DA policy, contained in this
regulation, will be followed.
b. Unless otherwise noted, requests for waivers to the requirements contained in this regulation, will be submitted,
through command channels, to D A M I ^ H . Waivers to DOD requirements will be forwarded by D A M I ^ H , for
decision to the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C3I)).
For requirements related to Two-Person Integrity (TPi), RD, Foreign Govemment Information (FGI) (including North
Atlantic Treaty Organization (NATO)), and security arrangements for international programs, waivers will be forwarded to the Under Secretary of Defense (Policy)(USD(P)). Waivers for SAPs will be submitted, through SAPs
channels, to DAMI-CH for coordination with TMO and, as required, forwarded to the Under Secretary of Defense
(Special Programs) (USD(SP)). The ASD(C3I) and USD(P) are responsible for notifying the Director of the ISOO of
the waivers approved that involve EO 12958 and its implementing directives.
c. Before submitting a request for waiver, the requesting authority will consider risk management factors such as
criticality, sensitivity, and value of the information, analysis of the threats both known and anticipated, vulnerability to
exploitation, and countermeasure benefits versus cost (national security cost and resource cost). Requests for waiver
must contain sufficient information to permit a complete and thorough analysis to be made of the impact on national
security if the waiver is approved. The waiver request will also describe all the factors creating the special situation and
the alternative or compensatory measures which make sure the protection afforded the information is sufficient to
reasonably deter and detect loss or unauthorized disclosure. The requesting command will maintain documentation
regarding approved waivers, including the alternative or compensatory measures approved and in use, and furnish this
documentation, upon request, to other agencies and to other Army commands, with whom classified information or
secure facilities are shared.
Note: Waivers granted before the effective date of this regulation are canceled no later than one year after the effective
date of this regulation. New/updated waiver requests may be submitted prior to cancellation date.
d. Throughout this regulation there are references to policy subject to MACOM approval or subject to policy as the
MACOM directs. Where that language, in substance, is used, the MACOM commander, or the HQDA SAAA, for
cases involving HQDA and its Field Operating Agencies (FOA), can delegate such approval authority. The delegations
will be in writing. A copy of such delegations will be maintained by the appointing official and reviewed periodically
for review of need for continuation. Where this regulation specifically specifies waiver authority to a MACOM
commander or the HQDA SAAA, that authority resides solely with the MACOM commander or HQDA SAAA and
will not be further delegated.

Section VII
Corrective Actions and Sanctions
1-20. General
Commanders will establish procedures to make sure that prompt and appropriate action is taken conceming a violation
of the provisions of this regulation, especially in those cases involving incidents which can put classified information at
risk of compromise, unauthorized disclosure, or improper classification of information. Such actions will focus on a
correction or elimination of the conditions that caused or contributed to the incident.

1-21. Sanctions
a. DA personnel will be subject to sanctions if they knowingly, willfully, or negligently—
(1) Disclose classified or sensitive information to unauthorized persons.
(2) Classify or continue the classification of information in violation of this regulation.
(3) Violate any other provision of this regulation.
b. Sanctions can include, but are not limited to waming, reprimand, suspension without pay, forfeiture of pay,
removal, discharge, loss or denial of access to classified information, and removal of original classification authority.
Action can also be taken under the Uniform Code of Military Justice (UCMJ) for violations of that Code and under
applicable criminal law, if warranted.
c. Original classification authority will be withdrawn for individuals who demonstrate a disregard or pattern of error
in applying the classification and sensitivity standards of this regulation.
1-22. Reporting of Incidents
EO 12958, paragraph 5.7(e)(2), requires that the director of the ISOO be advised of instances in which classified
information is knowingly, willfully, or negligently disclosed to unauthorized persons, or instances of classifying, or
continuing the classification of information in violation of this regulation. Reports of those instances will be submitted
through command channels to DAMI-CH for forwarding to the director of the ISOO and other defense officials as
appropriate. See chapter 10 for reporting of other security incidents.

AR 380-5 • 29 September 2000

23264

Section VIII
Reports
1-2^. Reporting Rec^uiren^ents
HQDA is required to report data necessary to support various requirements of EOI2958.Commanders will respond to
those data calls when so notified. MACOMs and the HQDA SAAAwill also submitaconsolidated annual report, for
all unitsunder their security responsibility,onSF3ll,toreach DAMI CH nolaterthan I October,orotherdate
specifiedby DAMICH,each fiscal year.The report will cover the preceding fiscal year.DAMICH will consolidate
and submit the annual SF3llreport for the Army.lnteragency Report Control Number 0230 OSA AN applies to this
report.

1-2^. Con^n^and security Inspections
MACOM,agency, and MSCcommanderswillestablish and maintainaself^inspectionprogramfor their command,
andaprogramtoinspect their subordinate units.The program must be baseduponprogramneeds and the degree of
involvement withclassified and sensitiveinformation.The purpose of the program willbe to evaluate and assessthe
effectiveness of the commandos protection of classified and sensitive information and adherence to Army policy
contained in this regulation. Inspections will be conducted annually unless the commandos higher headquarters
determines that the quantity of classified and sensitive holdings and material generated does not warrant that frequency,
fn those cases, inspections will occur not less frequently than once every other year.This will not dismiss other annual
requirements outlined in this regulation.

^l^a^t^r^
^la^^t^lcattort
Section I
Classification principles
2-1. Original vs. derivativeclassification
^. Original classification is the decision to designateacertain item of information as classified,ataparticular level,
and foracertain duration of time.Often these decisions are communicated inapublished Security Classification Guide
(SCG).These decisions can only be made by persons designated in writing by either the SECARM^or the DCSINTas
Original Classification Authorities (OCA) There are relatively few officials in the Am^y that have the authority to
apply original classification, and relatively few instances oforiginal classification, in most Army commands. Derivative
classification is the incorporating, restating, paraphrasing, or generating in new form, information that has already been
determined to be classified, and ensuring that it is classified and handled at the level that the OCA has already
determined willbe done. Derivative classification can be accomplished by any properly cleared personnel. Derivative
classifiers are not required tobe appointed or designatedunless so directedby Command option. MostDApersonnel
that classify information do so inaderivative manner from some other document or source. Derivative classification is
most commonlyaccomplishedby marking classified materialbased on the guidancefrom an SCG or fi^omthe source
document. The derivative classifier must have enoughsubject matter knowledgetoproperly interpret and apply the
instruction of the classification guidance. The original classification authority decides what portion(s) o f a plan,
program, or project needs to be classified. The derivative classifier applies that decision to the same type of
information restated or generated in a new form.
^. For example, an OCAcould make the decision that the maximumeffective range of Missile^^^ is classified.
The classificationauthority issuesasecurity classificationguide that statesthatthemaximum effectiverangeofthe
missile willbe classified at the SECRET level. When the missileis tested and the results are documented,the person
who writes the report, states that the maximumeffective range of Missile^^^is 250 miles,derivativelyclassifying
that itemof information asSECRET. In this case.theclassificationisderivedfromthe security classificationguide.
Mostclassification intheDepartmentof the Army is done inaderivativemanner.Those DAofficialsauthorizedto
apply original classification decisions are relatively few in number.
2-2. policy
Originalclassification istheinitialdeterminationby anOCAthatan itemof informationcould be expectedto cause
damage to national security if subjected to unauthorized disclosure. Damage to the national security means harm to the
national defense or foreign relations ofthe United States from the unauthorized disclosure ofthe information, to
include the sensitivity, value, and utility ofthat information. It includes military operations in support of national
objectives when thoseoperations involve information that meets thecriteriaofclassification. Thisdecision will be
made only by persons specifically authorized in writing to do so, have received training in the exercise of this
authority, and haveprogram or program support responsibility orcognizanceoverthe information. Thedecisionto

AR 330-5^29 September 2000

23265

originallyclassify must be made based on the requirements of this regulation.Delegations of original classification
authority w i l l be limited to the minimum required and only to officials who haveademonstrable and continuing need
to exercise it.

2 ^ . delegation of autl^orlty
^ The Secretary o f t h e Army has been granted original classification authority by the President o f t h e United States.
TOP SECRET OCA can be delegated only by the S E C A R M ^ SECRET and CONFIDENTIAE original classification
authority can only be delegated by the D C S I N T o r by the SECARM^.Delegation of authority includes information at
that level and any lower level(s) o f classification. This authority cannot be redelegated.
^. Requests for O C A w i l l be submitted,through command channels,to D A M I CH.These requests w i l l specify the
position title for which the authority is requested and detailed justification f o r t h e request. Original classification
authority is assigned t o a p o s i t i o n title and not to an individual person. In order to ensure that the number o f OCAs is
strictly limited, the request must address why another O C A , w i t h i n that officiafscommand or area, cannot assume this
responsibility.
^. Requests for original classification authority will be granted only when:
(1) Original classification is required during the normal course o f operations^
(2) Sufficient expertise and information is available to the prospective original classification authority to allow
effective classification decision makings
(3) The need for original classification cannot be handled by other existing OCAs^ or
(^) Referral ofdecisions toexistingoriginalclassification a u t h o r i t i e s , a t t h e c o m m a n d o r at higher levels in the
chain of command, is not practical.

2-^. Re^uiredTraining
Officials who have been delegated original classification authority w i l l receive training, as required by c h a p t e r 9 o f this
regulation, before exercising this authority.

Section II
derivative Classification
2 ^ . policy
DA personnel whogeneratematerial which is t o b e d e r i v a t i v e l y classified areresponsible f o r m a k i n g s u r e t h a t t h e
classification is properly applied based on the original source material marking and local security classification guides.
DApersonnel who apply derivative classification should take care to determine whether their paraphrasing, restating,
or summarizing ofclassified information has removed all or part o f t h e basis for classification.Certain information that
would otherwise be unclassified, may require classification when combined or associated with other unclassified
information.Thisis referred to as classified by compilation.However,acompilation of unclassifieditems of information is normally not classified. In unusual circumstances, classification may be required i f the combination o f
unclassified items o f information provides an added factor that warrants classification.Similarly.ahigher classification
may beassigned tocompilations of information that warrants higherclassification than that o f itscomponent parts.
Classification on this basis shall be ftilly supported, in writing, accompanying the compilation document. See paragraph
2 8 for specific classifying criteria.
2 - ^ . A c c u r a c y responsif^ilities
Officials who sign or approve derivatively classified material are responsible for the accuracy of the derivative
classification. This applies to all forms o f material and information regardless o f the media involved. Personnel
accomplishing derivative classification w i l l —
8. Observe and respect the classification determinations made by original classification authorities.
^ Apply markings or other means of identification to the derivatively classified material, as required by this
regulation, at the level and for the duration specified by the classification guide or source document. Where classifica
tion instructions do not reflect the new marking requirements o f EO 12958, mark the level ofclassification as directed
by the classification guide or source document and follow this regulation for all other marking requirements. Derivative
classifiers are encouraged to keep informal records of w h i c h p o r t i o n s o f a d r a f t document are classified and by which
source to make the classification of the finished product easier.
U s e o n l y authorized sources such asclassification guides, other forms o f o f f i c i a l classification guidance, and
markings on source material, from which the information is extracted. Refrain from guesswork.
^ Use cautionwhen paraphrasing or restating information extracted fromaclassified source to determine whether
the classification could have been changed in the process.
^. Take appropriate and reasonable steps to resolve doubt or conflicts in classification. In cases o f apparent conflict
between an S C G a n d a c l a s s i f i e d s o u r c e d o c u m e n t , c o n c e m i n g a d i s c r e t e i t e m of information,theinstructionsinthe
SCG w i l l take precedence unless the source document is signed by the original classification authority. In such cases,

AR 3 8 0 - 5 ^ 2 9 September 2000

23266

the OCA, or the point o f contact for answering questions on classification,will be consulted. In the event that it is not
possible to consult the OCA, the more restrictive classification instruction will be followed.
^ M a k e a l i s t of sources used when material is derivatively classified based on ^^MultipleSources^^ (more than one
SCG, classified source document, or any combination).Acopy o f this list w i l l be included in, or attached to, the file or
record copy o f t h e material.Derivative classifiers are encouraged to include this listing with all copies o f t h e document,
to make later declassification review easier i f the file or record copy is unavailable.
^. Contact the classifier o f t h e source document for resolution in cases in which the derivative classifier believes the
classification applied to the information is not accurate.

Section Iff
Tf^e Original Classification process
2-7. General
The decision to apply original classification requires the application ofjudgment, on the part o f the classifier, that the
unauthorized disclosure o f t h e information could reasonably be expected to cause damage to the national security,and
that theprobable damage can be identified ordescribed. It is not necessary for theoriginal classifier t o p r o d u c e a
written description o f t h e d a m a g e at the t i m e o f classification, but theclassifier must be prepared t o d o so i f the
informationbecomes the subject ofaclassificationchallenge.arequest for mandatory review for declassification,ora
request for r e l e a s e u n d e r t h e F r e e d o m o f Information A c t . T h e decisionto classify alsohasoperationalandresource
impacts as well as impacts affecting the United States technological base and foreign relations. The decision to classify
should consider all relevant factors.If there is doubt about classification,the O C A w i l l research the matter to make an
informed decision.If, after such research,there isasignificant doubt about the need to classify information,it w i l l not
be classified. In m a k i n g a d e c i s i o n to originally classify an item of information, an original classification authority
will^
^. Determine that the information has not already been classified.
^ Determine that the information is eligible for classification pursuant to paragraph 2 8 o f t h i s regulation.
^ D e t e r m i n e t h a t c l a s s i f i c a t i o n o f t h e information i s a r e a l i s t i c c o u r s e o f a c t i o n a n d t h a t t h e i n f o r m a t i o n c a n b e
protected from unauthorized disclosure when classified.
^. Decide thatunauthorizeddisclosurecouldreasonably be expectedto cause damage t o t h e n a t i o n a l security and
that this disclosure is identifiable and can be described.
^. Select the appropriate level or categoryof classification and^or sensitivity to be applied to theinformation, based
on a judgement as to the degree o f damage unauthorized disclosure could cause.
^ Determine andinclude the appropriate declassification,downgrading,and^or exemption category instrttction(s) to
be applied to the information, when applicable.
^. Make sure that the classification decision is properly communicated so that the information will receive appropriate protection. Security classification guides w i l l be used in this regard where appropriate (see paragraph 2 1^).

2-8. Classification criteria
U.S.classificationcan only be applied toinformation that is owned by,produced b y o r f o r . o r is under the controlof,
the United States Govemment. This is determined by the original classification authority that the unauthorized
disclosure o f the information reasonably could be expected to result in damage to the national security, and the
infi^^rmation falls within one or more of the following categories specified in section 1.5 of EO 12958:
^. Military plans, weapons systems, or operations.
^ Foreign govemment information.
^. Intelligence activities (including special activities), intelligence sources or methods, or cryptology.
^. Foreign relations or foreign activities o f t h e United States, including confidential sources.
^. Scientific, technological, or economic matters relating to the national security.
^ United States Govemment programs for safeguarding nuclear materials or facilities.
^. Vulnerabilities or capabilities o f systems, i n s t a l l a t i o n s . p r o j e c t s o r p l a n s r e l a t i n g t o t h e n a t i o n a l s e c u r i t y . N o t e :
When used, these seven classification categories are referred to by their reference letter, preceded by ^^1.5,^^ the
referencelocation w i t h i n t h e E O . Forexample.^^Military plans, weapons systems,or operations'^ wouldbe^^l.5(a).^^
See paragraph ^ 9 for further details on ^^Classified by^^ marking.

2 9. ^ossit^llity of protection
^. T h e O C A m u s t d e t e r m i n e t h a t , ifclassification is appliedorreapplied,thereisareasonablepossibility thatthe
information w i l l be provided protection fi^om unauthorized disclosure.
^. Thereclassificationof information which was once classifiedbut was declassified andofficially released t o t h e
public, by an authorized Army official, and had wide spread access by the public, is prohibited. Army information that
hasnot previously been d i s c l o s e d t o t h e p u b l i c , underproper Army a u t h o r i t y , c a n b e c l a s s i f i e d o r reclassified. This
i n c l u d e s a f t e r a c o m m a n d hasreceived arequest for it. However, only i f thereclassification is accomplished o n a

AR 3 8 0 - 5 ^ 2 9 September 2000

23267

document b y ^ o c u m e n t b a s i s , w i t h the participation, or under the direction of, the S E C A R M ^ , t h e Under Secretary o f
the A r m y , o r t h e D C S I N T . G u i d a n c e f r o m D A M I CH w i l l b e r e q u e s t e d i n t h o s e i n s t a n c e s . T h e i n f o r m a t i o n t h a t i s
reclassified must meet the criteria for classified information established in EO 12958 or successor orders and directives.
In considering issues o f reclassification or classification o f previously unclassified information, the OCA w i l l —
(1) Determinethat control o f t h e information hasnot been l o s t a n d c a n s t i l l beprevented from beinglost^ and
(2) In the case o f information released to secondary distribution centers, determine that no secondary distribution has
been made and can still be prevented.
^ Classified information will not be declassified automatically asaresult of any unauthorized disclosure o f identical
or similar information. In these cases,the OCA will review the situationtodetermineifcontinuedclassifrcation is
warranted. However, such disclosures require immediate determination of the degree of damage to the national security
and reevaluation o f t h e information todetermine whether thepublication hassocompromised the information that
downgrading or declassification is warranted.

2-10. l^evels ofclassification
^. Onceadecision is made to classify,information w i l l be classified at one o f the three levels listed below. For each
level, the OCA must be able to identify or describe the damage that unauthorized disclosure reasonably could be
expected to cause to the national security. These levels are:
(1) TOP SECRET
W i l l be applied to information in which the unauthorized disclosure could reasonably be
expected to cause exceptionally grave damage to the national security.
(2) SECRET
W i l l be applied to information in which the unauthorized disclosure could reasonably be expected to
cause serious damage to the national security.
(3) C O N F I D E N T I A E
W i l l beapplied to information in which the unauthorizeddisclosurecouldreasonably be
expected to cause damage to the national security.
^. I f there is doubt about the classification level,the O C A w i l l research the matter to make an informed decision.If
significant doubt still remains about the classification level to be assigned, the lower level will be assigned.

2-11. duration ofclassification
I n f o r m a t i o n w i l l b e declassified as soon a s i t n o l o n g e r meets the standards for classification. Informationwill remain
classified aslong as it is in the interest o f national security and meets the criteria stated in this regulation. At the time
an item o f information is originally classified, the original classifier must decide the length o f time the information w i l l
require classification and select an appropriate declassification date or event. The term ^^time or event phased
declassification date,^^ used for acquisition programs,is also synonymous with the term^^declassificationdate^^as used
in this regulation. The declassification date indicates when the information no longer requires protection in the interests
o f national security. When deciding on the declassification date or event, the following options are the only ones
available to the OCA:
^. A t the time o f original classification, the original classification authority will attempt to establishaspecific date
or event for declassification based upon the duration o f the national security s e n s i t i v i t y o f t h e i n f o r m a t i o n . T h e OCA
w i l l a t t e m p t t o d e t e r m i n e a d a t e , w i t h i n t e n y e a r s f r o m the date ofclassification,upon w h i c h t h e i n f o r m a t i o n c a n b e
automaticallydeclassified.If that is not possible, they will attempt to determineaspecific event, reasonably expected
to occur within 10 years, that can be set as the signal for automatic declassification o f t h e information.This is referred
to as the ^^ten year rule.^^ The date or event will not exceed the time frame in subparagraph c, below.
^. I f information has originally been assignedadate or event for declassification o f ten years or less, in accordance
with subparagraphaabove, and the OCA later has reason to believe longer protection is required, the classification can
be extended for successive periods of up to ten years a t a t i m e , not to exceed the time period in subparagraph e. below,
where applicable.
^ I f unable to determineadate or event that is ten years or less, the O C A w i l l assign an exemption designation to
t h e i n f o r m a t i o n , i f t h e i n f o r m a t i o n q u a l i f i e s f o r e x e m p t i o n f r o m automatic declassificationintenyears.This couldbe
d o n e i f theunauthorizeddisclosure o f theinformationcouldreasonably be expected to cause damagetothenational
security, i f specific information requires a period beyond 10 years from the date o f o r i g i n a l classification, and the
release o f the information could reasonably be expected to result in one or more of the following:
(1) Reveal an intelligence source, method, or activity, or a cryptologic system or activity.
(2) Reveal information that could assist in the development or use of weapons o f mass destruction.
(3) Reveal information that could impair the development or use o f technology within a United States weapon
system.
(^) Reveal United States military plans or national security emergency preparedness plans.
(5) Reveal foreign govemment information.
(^) Damage relations between the United States andaforeign govemment, revealaconfidential source, or seriously
undermine diplomatic activities that are reasonably expected to be ongoing for a period greater than ten years.
(7) Impair the ability o f responsible United States govemment officials to protect the President, t h e V i c e President,
and other individuals for whom protection services, in the interest of national security, are authorized.

10

AR 380-5 • 29 September 2000

23268

(8) Violateastatute,treaty,orintemational agreement. Note: When used, these eight exemption categories are either
completely writtenout or referred toby their reference number precededbytheletter^^^.^^Forexample,^^Violatea
statute, treaty,orintemational agreement^^or^^^8.^^ Seeparagraph^ 10 forfurtherdetailson exemptionmarking.
^. Information marked for an indefinite duration of classification under prior orders, for example, ^^Originating
Agency^s Determination Required^^(OADR), or information classified under prior orders that contain no declassifica
tion instructions,will be declassified in accordance with chapter3of this regulation.The term OADR will no longer be
used. When an exemption category is selected, there is no requirement to select a specific date or event for
declassification at the time oforiginalclassification. Inthosecasesin which the originalclassifierdoesnotselecta
declassification date, the following will apply:
(1) Theinformation.if placedinrecords that have been determined to have permanent historical value underTitle
^^,USC (see ^^permanent^^ files underAR 25^00 2),will be automatically declassified in 25years from the date of
original classification, unless specifically exempted or unless this policy is changed before that time.
(2) The information, if not placed in suchrecords(mentioned in subparagraph(l)above), will remain classified
until destroyed, or until the OCA determines a change in classification.
^. For information in records determined to have permanent historical value, successive extensions may not exceeda
total of 25years from the date of the information^sorigin.Continued classification of this information is govemed by
the automatic declassification provisions ofthis regulation contained in chapter 3.
^ Decisions to extend classification must take into account the potential difficulty of notifying holders of the
extension, including thepossible inability toensure continued, uniform protectionof the information. Officials who
decide to extend a declassification date are responsible for notifying all known holders ofthe information of the
decision and for obtainingassurance from those holders that notification has been madeto organizations that were
provided the information under further dissemination by those holders.

2-12. Con^n^unlcatlng tf^eClassificatlon Oeclslon
An original classification authority who has made a decision to originally classify information is responsible for
communicating that decision to persons who will likely be in possession ofthat information.This will be accomplished
by issuing classification guidance, discussed in sectionVof this chapter, or by making sure thatadocument containing
the information is properly marked to reflect the decision. Marking requirements for classified material, including page
and paragraph markings, are covered in chapter ^ of this regulation.

2-1^. Con^pdatlon
Generally,acompilation of unclassified items of information is not classified.In unusual circumstances, compilation of
items of information that are individually unclassified can be classified if the compiled information reveals an
additional association or relationship that matches criteria for classification as described in paragraph 2 8 ofthis
regulation.Classificationbycompilation willbe fully supported byawritten explanation that willbe provided on,in,
or with, the material containing the information. An OCA must be consulted if guidance is required conceming
whether or not the compilation results in classification.
2 - 1 ^ . Acquisition Systenns
Classification and safeguarding of informationinvolved in the DOD acquisition process will conformto the minimum
standards of thisregulation.as well astherequirementsofDODD 5000.l andDOD lnstruction(DODI) 5000.2 (or
successor directives and instructions). The term ^^time or event phased declassification date^^, used for acquisition
systems, is synonymous with the term ^^declassification date^^ used in this regulation.

2-15. I^in^itatlonsand prof^if^ltlons
EO 12958 and the Atomic EnergyAct of 195^ provide the only basis to classify information.Information will only be
classified when it requires protectionintheinterestofnationalsecurity as specifiedinthis regulation. Classification
cannot be used toconceal violationsof law, inefficiency, oradministrativeerror, or to prevent embarrassment to a
person,organization,agency,or to restrain competition.Basic scientific research and its results can be classified only if
it clearly relates to the national security.SectionVI of this chapter covers information that isaproduct of non govemment research and development, that does not incorporate, or reveal, classified information to which the producer, or
developer, was given prior access.

AR 380-5 • 29 September 2000

11

23269

Section IV
Security Classification Guides
2 1 ^ . volley
A Security ClassificationGuide (SCG) willbeissuedfor each system,plan, program,or project in whichclassified
information is involved. Agencies with original classification authority will prepare classification guides to facilitate the
proper and uniform derivative classification of information. These guides will conform to standards contained in
directives and regulations issued under EO 12958 and this regulation.

2 1 ^ . Content
Security classification guides will, at a minimum, include the following information:
^. Identify specific items or elements of information to be protected and the classification level to be assigned each
itemor element. When deemed useful,specify theitems or elements of information which are unclassified or which
were previously classified and now are declassified.
^ Provide declassification instructions for each item or element of information, to include the applicable exemption
category for information exempted from declassification within ten years. See paragraph 2 11 for exemption
categories.
^. Provide a concise reason for classification for each item, element, or category, of information which, at a
minimum, cites the applicable classification category or categories from section 1.5ofEO 12958 and that are listed in
paragraph 2 8 ofthis regulation.
^ Identify any special handlingcaveats or waming notices or instructions,which apply to theitems,elements,or
categories of information.
^. Identify by name, or personal identifier, andposition title, theOCAapprovingtheguide,andthedateof the
approval. Apersonalidentifier is anygrouping of letters or numbers used in an organization code that the command
uses toidentifyaparticular position.Classification guides will normally be signed by the OCA and.where that is the
case, the name and position title, rather than the personal identifier and position title, will be used.
^Provideapoint of contact, with telephone number, for questions conceming the guide, challenges to classification,
and suggestionsfor improvement. Provideastatement inthe guide encouraging personnel toinformally question the
classification of information before resorting to a formal challenge. Provide an address for formal classification
challenges.

2-18. Approval, dlstrll^ution^ and indexing
^ Security classification guides will be personally approved in writing by the original classification authority who is
authorized to classify information at the highest level designated by the guide, and who has program support or
supervisory responsibility for the information or for the commandos information security program.
^ Security classification guides will be distributed to those commands, contractors, or other activities expected to be
derivatively classifying information covered by the guide.
One paper document copy of each approved SCG (less those for SAPs or programs involving SCI) and its
changes will be sent to the Director ofFreedom of Information and Security Review.Office of the Assistant Secretary
ofDefense. Also.onecopy, inpaper document (hardcopy) and^orautomatedformat(softcopy), will be sent tothe
Army DeclassificationSpecial ProgramOffice. See AR 380 381 for guidance ondistributionofclassificationguides
for SAPs, and AR 380 28 for guidance on SCI programs.
^. Two copies of each guide, other than those covering SAPs or SCI information, will be provided to the
Administrator, DefenseTechnicallnformation Center (DTIC). Each guide fumished to DTIC must bear the appropriate
distribution statement required by DODD 5230.2^.Securityclassificationguidesissued under this regulation,willbe
indexedintheDODIndexof Security Classification Guides (DOD 5200.II).The originator of the guide will submit
DDForm 202^ (DOD Security Classification GuideData Elements) to the Administrator, DTIC,upon approval of the
guide. Iftheoriginatordeterminesthat listing theguideinDOD 5200.II wouldbeinadvisablefor security reasons,
issuance of the guide will be separately reported,with an explanation of why the guide cannot be listed,to the Director,
Special Programs,ODTUSD(P)PS,along withaseparate memorandum to DAMI CH.Report Control Symbol D D ^ 3 I
(B^AR) 1^18 applies to the reporting requirements of this paragraph.
2-19. Review, revision, and cancellation
^. Security classificationguides will berevised whenever necessary topromoteeffectivederivative classification.
Whenaguide isrevisedor reissued.andaspecificdatewasselected fordeclassification instruction.computation of
declassificationinstructionswillcontinue to be based on the date of the originalclassification of theinformation, and
not on the date of the revision or re issuance. Guides will be reviewed by the originator for currency and accuracy at
least once every five years, or if conceming a defense acquisition program, prior to each acquisition program
milestone,whichever occurs first.Changes identified in the review process will be promptly made. If no changes are

12

AR 380-5 ^29 September 2000

23270

required, the originator will advise the Administrator, DTIC, and DAMI CH in writing, and the record copy of the
guide will be so annotated with the date of review.
^. Guides will be cancelled only when:
(1) All information specified as classified by the guide has been declassified^
(2) When the system, plan, program, or project classified by the guide has been cancelled, discontinued, or removed
fi^om theinventory andthere isnoreasonable likelihoodthatinformationcoveredby the guide will beinvolvedin
other classified programs or will be the subject of derivative classifications or
(3) Whenamajorrestructurehas occurred as theinformation isincorporatedintoanewclassificationguideand
there is no reasonable likelihood that information covered by the guide will be the subject of derivative classification.
^. Impactof the cancellationonsystems.plans,programs,andprojectsprovided to other nationsunder approved
foreign disclosure decisions, and impact of such decisions on existing U.S. SCGs of similar systems, plans, programs,
or projects, will be considered in the decision. When a classification guide is cancelled because the system, plan,
program, or project has been cancelled, discontinued, executed, or removed from the inventory, the information
covered by the guide is not automatically declassified. That decision rests with the OCA and authorized declassification
authorities within the Army. Upon cancellation ofaguide,the OCA,or other designated declassification official,with
the concurrence of the OCA, willconsider the needfor publication ofadeclassificationguide. Inplaceofaseparate
declassification guide,declassification guidance can beincludedinaclassification guide forasimilar,current system,
plan, program, or project.
^ Revision, re issuance, review, and cancellation of a guide will be reported to DTIC on DD Form 202^ as
required for new guides. Copies ofchanges, reissued guides, and cancellation notices will be distributed as required for
new guides as stated in paragraph 2 18 of this regulation.
Section V
^on-Governn^ent Inforn^atlon
2-20. policy
Informationthatisaproductofcontractor or individual lndependentResearchandDevelopment(IR^D)orBidand
Proposal (B^P) efforts, conducted without prior or current access to classified information associated with the specific
information in question, cannot be classified unless:
^. The U.S. Govemment first acquires a proprietary interest in the information.
^ The contractor, conducting the IR^D^B^P,requests the U.S.Govemment activity to place the information under
the control of the security classification system, without relinquishing ownership of the information.

2-21. Classification detern^lnatlon
^. Theindividual or contractor conducting an IR^D^B^Peffortcouldbelievethat information,generated without
prior access to classifiedinformation,or current access to classifiedinformation, associated with the specificinformationin question,might require protectionintheinterest of national security.The contractor would then safeguard the
information and submit it to an appropriate Army,or other U.S.Govemment activity,foraclassification determination.
^. The Army command receiving such arequest will issue security classification guidanceas appropriate if the
information is to be classified.Ifthe information is not under that command^sOCA,the command will refer the matter
to the appropriate OCA or inform the individual or contractor to take that action. The information will be safeguarded
until the matter has been resolved.
^ The Army command that holds classification authority over the information will verify whether or not the
individual or contractor is cleared and has authorized storage capability. If not, the appropriate contracting authority for
the command will advise whether or not to process clearance action.
^ If the individual orcontractor refuses tobeprocessed foraclearance, andthe govemment doesnotacquirea
proprietary interest in the information, the information cannot be classified.

2-22. Classification cf^allenges
^. If authorized holders of information have substantial reason to, in good faith, believe that the information is
improperly or unnecessarily classified,they will communicate that belief throughtheir command security manager.to
the OCA ofthe information,to bring about any necessary correction.This can be done informally, or by submission of
a formal challenge, to theclassification as provided for in EO 12958 and this regulation. Informal questioningof
classification is encouraged before resorting to formal challenge. Commanders will establish procedures through which
authorizedholders ofclassified information withintheirCommands.canchallengeaclassificationdecision,and will
ensure that Command personnel are made aware ofthe established procedures.An authorized holder is any person who
hasbeengrantedaccesstospecificclassified informationbeingchallenged. OCAs will establish written procedures
through which authorized holders of classified information can challenge classification decisions. At a minimum,
security classification guides will containapoint of contact to informally communicate classification challenges and an
address to communicate formal classification challenges. EO 12958 establishes the Interagency Security Classification

AR 380-5 • 29 September 2000

13

23271

Appeals Panel (ISCAP). One o f the roles of the panel is to decide upon appeals by authorized holders o f the
information who have madeaformal classification challenge as described in this section. See section 5.^, EO 12958,a
reprint o f which i s f o u n d at appendix B o f t h i s r e g u l a t i o n , f o r more details on the composition a n d f u n c t i o n o f this
panel.
(1) Formal challenges to classification, made underthis subsection, w i l l include a sufficient description o f the
information being challenged, to permit identification o f the information and its classifier, to include the O C A , w h e r e
k n o w n , w i t h reasonable effort.Challenges to classification made b y A r m y personnel w i l l i n c l u d e the reasonwhy the
challenger believes that the information is improperly or unnecessarily classified.Use o f D A Form 1575 (Request for^
or Notification o f Regrading Action) may be used to make a formal challenge. The challenge request should be
unclassified, i f possible. The classification determination o f the OCA will be upheld and carried forward until
otherwise determined by the appropriate authorized official.
(2) Commanders w i l l make sure that no retribution is taken against any personnel for making a challenge to a
classification.
^. The following w i l l be established by each OCA:
(1) A system for processing, tracking, and recording formal challenges to classification. The system used w i l l
differentiate the classification challenges with other reviews for possible declassification (for example, FOIA requests).
Requests for information made under the FOIA will be handled as directed by AR 25 55.
(2) The OCA w i l l p r o v i d e a w r i t t e n response to the challenge within ^0 calendar daysfollowing the receipt o f the
challenge. I f t h e OCA cannot respond fully to the challenge within ^0 calendar days from receipt, the challenge w i l l be
acknowledgedandanexpecteddateofresponseprovided. This acknowledgment will includeastatementthat, i f no
response is received w i t h i n l 2 0 calendar days following receipt o f the challenge, the challenger has the right to forward
the challenge t o l S C A P . T h e challenger can also forward the challenge to the ISCAP i f the OCA has not responded to
an intemal appeal within 90 calendar days o f receipt. An intemal appeal is when the challenge comes from DA
personnel to a Department of the Army OCA. An information copy o f the request for appeal, submitted by DA
personnel, whether or n o t t o a Department o f t h e Army OCA, w i l l be sent to the original classification authority.
(3) I f t h e c h a l l e n g e is denied and theoriginal classification authority determines thatthe information is properly
classified, the O C A w i l l advise the challenger of the right to appeal the decision.The first level of appeal w i l l be to the
first superior general officer in the chain of command o f the original classification authority. That general officer w i l l
either rule on the appeal, in an impartial manner, or w i l l designate an impartial official, or panel o f officials,
knowledgeable in the subject matter of the information being challenged, to decide upon the appeal. Both the
challenger and the OCA will be advised of the appeal decision. The same time frames and notification to the
challenger, stated in subparagraph b, above, apply to the first level of the appeal procedure.lf, asaresult o f the first
level o f appeal, the challenge is denied, and the appeal authority determines that the information is properly classified,
the appealauthoritywilladvise the challenger of the right to appeal the d e c i s i o n t o t h e l S C A P . T h e D i r e c t o r o f the
ISOO serves as the Executive Secretary o f t h e ISCAP.The correct address to fumish the challenge for appeals to that
panel is to the Executive Secretary o f t h e Interagency Security Classification Appeals Panel, c^o ISOO. A s o f t h e
publicationdate o f this regulation,the mailing a d d r e s s f o r l S O O is: InformationSecurity Oversight Office (ISOO),
National Archives and Records Administration,700 P e n n s y l v a n i a A v e n u e , N W , R o o m 5 W , W a s h i n g t o n D.C.20^08.
(^) I f a c h a l l e n g e is received conceming information that has been the subject o f a c h a l l e n g e , w i t h i n the preceding
two years, or which is the subject of pending litigation, the original classification authority need not process the
challenge.The O C A h a s the option of whether or not to process the challenge. I f the challenge is not processed,the
challenger w i l l be informed o f t h e situation and that the matter may be appealed to the ISCAP.
(5) I f a c h a l l e n g e i s r e c e i v e d c o n c e m i n g i n f o r m a t i o n t h a t h a s b e e n c l a s s i f i e d b y a n o t h e r O C A within the A r m y , o r
by another agency in t h e U . S . G o v e m m e n t . t h e challenger w i l l b e i n f o r m e d of thisfact and directed toresubmit the
challenge to the appropriate official.
(^) I f a c h a l l e n g e i s received conceming information classified b y a f o r e i g n govemment or intemational organization, the receiver o f the challenge w i l l forward the request for classification review to the appropriate foreign
govemment agency that classified the information. The request to the foreign govemment for classification review w i l l
state that within the United States it is the procedure to respond to these challenges or notify the challenger within ^0
calendar days o f receipt o f the request, and that it would be appreciated i f this same response time could be observed.
The c o r r e s p o n d e n c e t o t h e f o r e i g n g o v e m m e n t w i l l a l s o i n q u i r e i f there is any appeal a u t h o r i t y , a n d i f s o , t h a t this
authority be listed in the response i f the challenge is denied. The challenger w i l l be advised o f this referral, i f
applicable. Army OCAs w i l l be responsive to such informalinquiries and will recognize that the Army has no control
o v e r a t i m e l y , o r lack of, response from the foreign govemment.The reply from the foreign govemment, upon receipt,
w i l l be forwarded by the requester to the challenger.
^. Information that is the subject o f a classification challenge w i l l continue to be classified and appropriately
safeguarded until a decision is made to declassify it.

14

AR 380-5 • 29 September 2000

23272

must continue to be controlled at their prior classification or sensitivity level. Ptirging or sanitizing of media means to
erase or overwrite, totally and unequivocally,all information stored on the media. Declassifying of media refers to the
administrative action taken after it has been purged. Declassifying is required when the media must leave the facility
under the control of uncleared personnels for example, for maintenance operations.
^. The decisionto declassify mediawillbe made onlyafter comparing theinherent risks (intheMagneticMedia
Remanence Guide Rainbow Series) with the financial or operational benefit of media declassification. For example,
destructionofmediaisnormally moreappropriatethandeclassificationandreuse,giventhelowcostofthemedia.
^. Mediacanbedeclassifiedonly after purging.The appropriate ISSOmust verify that the technique chosenfor
purging (or sanitizing) meets applicable reqtiirements. Additionally,the ISSO must establishamethod to periodically
verify the results ofthe purging. As a minimum, a random sampling will be taken to verify each purge.
^. Degaussing must be accomplished usingNSA approved equipment from the Degausser Products Eist of the
Information Systems Security Products and ServicesCatalogue. Information on degaussers isavailable through the
information systems security management structure. Some listed products may be used only to degauss magnetic media
that has coercivity no greater than 350 oersteds(also known as typelmedia),while others are approved for media with
coercivity no greater than 750 oersteds(also known as type II media).Certain tape media haveacoercivity greater than
750 oersteds (alsoknown as typelll media) andcannot,atthistime,be completely degaussed.(See AR 380 19 for
more information.)
^. A CD ROM will be destroyed by scratching both surfaces with an abrasive substance, to render the CD
unreadable, prior to breaking the CD into numerous pieces with an impact device, such as a hammer.
^Storage media containing Sensitive Compartmented Infonnation (SCI) will be handled as stated in AR 38019,
and media containing Special Access Program (SAPs) material will be handled as stated in AR 380 381.

Cl^apt^r ^
l^arl^lrt^
Section I
l^arl^lng Oocunnents
^ 1 . ^urposeand policy
Marking is the principal means of informing holders of classified and sensitive information of its classifications
sensitivitylevel and protection requirements.Within the Department of the Army,classified and sensitive material will
be identified clearly by marking, designation, electronic labeling, or if physical marking of the mediumis not possible,
by someothermeansof notification. Theterm ^^marking^^as used inthisregulation is intendedto includeall these
methods ofnotification. The term ^^documenf^ as used in this section is meant to apply to all classified and unclassified
material,no matter what form (paper, electronic,etc.)it is in.Classification^sensitivity markings must be conspicuous.
Original and derivative classifiers are responsiblefor application of the appropriate classification^sensitivity markings.
The requirementsfor marking information andmaterial within theintelligence community arealittle different.These
requirements canbefoundin appendix D,of this regulation,and successor Director of Central IntelligenceDirectives
(DCID). Therequirements ofthis chapterdo not apply to the markingof security containers. Theonly markings
allowed on securitycontainers are those outlinedinparagraph7 8 o f this regulation.Marking serves these purposes:
^. Alerts holders to the presence of classified and sensitive information.
^ Identifies, as specifically as possible and feasible, the exact information needing protection.
^. Indicates the level of classification^sensitivity assigned to the information.
^ Provides guidance on downgrading (if any) and declassification.
^. Gives information on the source(s) and reason(s) for classification of the information.
^ Wams holders of special access, control, dissemination, or safeguarding requirements.

^ 2 . ^^ceptlons
^ PublicMedia — Classification and^or other security markings will not be applied to an article or portion of an
article that has appearedinanewspaper,magazine,or other public medium. If such an articleis evaluated to see if it
contains classified and^orsensitiveinformation.the results of the review willbe properly marked,ifclassifiedand^or
sensitive, and will be kept separate unless both the article and the results ofthe review are protected (stored and
otherwise safeguarded as classified^sensitive information). DA personnel will neither confirm nor deny the presence of
classified and^or sensitiveinformation or the accuracy of suchinformationwhenthatinformationhasappearedinthe
public media.
^ Confidential Source or Relationship — Classified documents and material will be marked in accordance with this
regulation unless the markings themselves would revealaconfidential source or relationship not otherwise evident in
the document, material, or information.

AR 380-5 ^29 September 2000

21

23273

^. Restricted Data^Formerly Restricted Data — The marking requirements for the date or event for declassification
do not apply to documents or other material that contain, in whole or part, RD or FRD information. Such documents or
other material or portions thereof will not be declassified without approval of the Department of Energy with respect to
Restricted Data or Formerly Restricted Data information, and with respect to any national security information
contained therein, the approval ofthe originating agency.

Re^ulren^ents
General requirements are showninthis section. Eachof these requirementsisexplainedin more detailinaseparate
section of this chapter. Figures^ 1 through^ 13, at the end of this chapter, provide examples of the most typical
situations. These figures are not intended to cover all situations. Material other than paper documents require the same
markingsandmusthavethesame informationeithermarkedon itormadeavailabletoholdersby other means of
notification. While not a requirement, the holderof an improperly marked classified document should contact the
documentoriginatortoobtaincorrect markings. Classifiedand sensitivematerial will bear the followingmarkings:
^. The overall (highest) classification^sensitivity of the information.
^. The command, office of origin, date, and if not evident by the name of the command, the fact that the document
was generated by the Department ofthe Army.
^. Identification and date of the specific classifiedinformationin the document and itslevelof classification (page
and portion markings).
^ Identification of the source(s) of classification (^^Classified by^^ or ^^Derived from^^ line), and, for originally
classified information, the concisereason(s) forclassification. Incasesof derivativeclassification, the reason(s) the
source of the classified portion(s) is^are derived from.
^ Declassification instructions(^^Declassify on^^ line),anddowngrading instructions, ifany downgradingapplies.
^ W a m i n g and sensitivity notices and other markings, if any, that apply to the document

Overall classification n^arf^lng
Classified and sensitive documents will be marked to show the highest classification^sensitivity of information contained inthe document. For documents containinginformationclassified at more thanonelevel,the overall marking
will be at the highest level. For example, if a document contains some information marked ^^SECRET^^ and some
information marked ^^CONFIDENTIAE^^,the overall marking would be ^^SECRET^^.This marking must be conspicuous
enoughto alert personnel handling thematerial that it isclassifiedandmustappear i n a way that will distinguish it
clearly from the text of the document.The overall classification^sensitivity will be conspicuously marked,stamped,or
affixed (withasticker,tape,etc.),topandbottom,onthefrontandbackcovers (if the document has covers),onthe
title page (if there is one), and on the first page, in letters larger than those on the rest of the page. If it is not possible
to mark classification^sensitivity in letters which are larger than the rest of the text (for example, on covers of
documents or graphics), apply classification^sensitivity markings in any manner that is immediately noticeable To
promotereproducibi1ity,classification^sensitivity andassociatedmarkings will beapplied in blackorotherdark ink.
The use of red ink is discouraged. If the document or other material has no front cover, the first page will be the front
page. If it hasacover,thefirstpageis defined as thefirst page that canbeseenwhen the cover is tumed backor
opened. In some documents, the title page and first page can be the same.

4-5. Oate, con^n^and, offlceof origin, and agency
Classifiedand sensitivedocuments will bemarkedon thefaceofthedocument with the dateofthedocument, the
command that originated it, the office or agency which originated it, and ^^U.S.Army^^ or ^^Army^^ if it is not clear from
thenameofthecommandthatitisaDAactivity originating the document.Thisinformation willbe clear enoughto
allow the recipient ofthe document to contact the preparing office ifquestions or problems about classification arise.

4-^. ^ageand portion n^arf^ing
Eachclassifiedand^orsensitivedocumentmustshow.asclearlyaspossibleandfeasible, which information in it is
classified and^or sensitive and at what level. That will be done in the following manner:
^. Eachinterior page ofaclassifiedand^or sensitive document (except blank pages) willbe conspicuously marked,
top and bottom, with the highest classification^sensitivity of the information on the page. The marking must be
conspicuous enough that it is clearly distinguishable from the regular text ofthe document. Blank interior pages are not
required to be marked. This is the preferred method of page marking. As an alternative to marking pages according to
individual page content, the interior pages can be marked with the highest overall classification^sensitivity of informa
tionwithin the document. If this altemativemethodisused,portion marking must be used and cannot be excepted as
described in paragraph ^ ^ c , below.
^. Each section, part, paragraph, and similar portion of aclassified and^or sensitive document will bemarked to
showthehighest levelofclassification^sensitivity ofinformationitcontains,orthat it isUNCEASSIFIED. ^^Portion
marking^^ is the termused to meet this requirement.The term^^paragraphmarking^^ is generally usedinterchangeably
with^^portionmarking^^. Whether referredtoasportionorparagraphmarking, theterm includesthemarkingofall
portionsofadocument,notjust paragraphs. Whendecidingwhetherasubportion(suchasasubparagraph) will be

22

AR 380-5 ^29 September 2000

23274

marked separately asa^^similarsubportion^^,the deciding factor is whether or not the marking is necessary to eliminate
doubt about the classification^sensitivity o f its contents.Unless the original classification authority or originator o f the
document indicates otherwise on the document, each classified and^or sensitive portion ofadocument w i l l be presumed
to carry the declassification instructions (date, event, or exemption category) o f t h e overall document.
(1) Each portion o f text will be marked with the appropriate abbreviation (^^TS^^ f o r T O P SECRET, ^^S^^ for
SECRET,^^C^^ for CONF1DENTIAE, or ^^U^^ for UNCEASSIFIED), placed in parentheses immediately before the
beginning o f t h e portion. I f t h e portion is numbered or lettered, the abbreviation w i l l be placed in parentheses between
theletter or number and the start o f the text. Some agencies permit portion marking at the end o f the portion,rather
t h a n a t t h e b e g i n n i n g . T h e D e p a r t m e n t o f t h e A r m y d o e s n o t . When extracts from non DA documents are made and
incorporated into DA documents, the portion marking will be placed at the beginning o f the portion.
(2) Portions containing Restricted Data (RD) and Formerly Restricted Data (FRD) will have abbreviated markings
(^^RD^^ or ^^FRD^^) included with the classification marking, for example, ^^(S RD) or (S FRD)^^. Critical Nuclear
Weapons Design Information ( C N W D I ) will bemarked with an^^N^^ in separateparentheses following the portion
marking, for example, ^^(S RD)(N)^^.
(3) The abbreviation ^^FOUO^^ w i l l be used in place of ^^U^^whenaportion is UNCEASS1F1ED but contains ^^For
Official Use Only^^ information. AR 25 55 contains the definition and policy application o f FOUO markings. See
chapter 5, o f this regulation, for further guidance, as well.
(^) Portions o f D A d o c u m e n t s c o n t a i n i n g f o r e i g n g o v e m m e n t o r N A T O i n f o r m a t i o n will includeidentificationof
the foreign classification in the marking in parentheses.For example,^^(UI^S)^^ for information classified ^^SECRET^^
b y t h e U n i t e d l ^ i n g d o m ^ a n d ^ ^ ( N A T O ^ ) ^ ^ f o r N o r t h A t l a n t i c T r e a t y Organization ( N A T O ) information classified as
^^CONFIDENTIAE^^
(5)Paragraph 5 ^ 1 0 , D O D D 5200.1 Rstated that the caveat ^^NOFORN^^ w i l l no longer be used.This has since
been rescinded. Effective with the release of Director o f Central IntelligenceDirectives (DCID) 1 ^ 7 ( s e e a p p D ) a n d
D C I D 5 ^ ^ , b o t h dated 30June 1998,the use o f ^^USONE^,^^ to m a r k i n f o r m a t i o n t h a t must be restricted t o U . S .
nationals, willcease. Until r e v o k e d , t h i s t y p e o f information w i l l b e marked^^NOFORN.^^ This appliesto all media,
including hard copy, digital, and graphic.
(^) The subject and title of classified documents w i l l be marked to show the classification o f the informationin the
subject or title.The same abbreviations (^^TS^^,^^S^^,^^C^^,^^U^^,or^^FOUO^^) will be used but the abbreviations w i l l be
placed in parentheses at the end o f the subject or title.
(7) Charts,graphs, photographs, illustrations,figures, tables, drawings, and similar portions w i l l be marked with the
unabbreviated classification^sensitivity, such as ^^UNCEASSIFIED^^, based o n t h e level ofclassified and^or sensitive
information revealed. The marking will be placed within the chart, graph, etc., or n e x t t o it, such as on the frame
holding the document.Captions and titles o f charts, graphs, e t c . , w i l l b e marked as requiredfor text portions (such as
paragraphs) and will be placed at the beginning o f the caption or title.
(8) See appendix D f o r an explanation o f marking certainintelligence control markings (for instance,ORCONand
PR0P1N). Portion m a r k i n g o f those intelligencecontrol markings will follow thepolicy asstated in DCID 1^7 and
successor directives.
(9) See appendix I for an explanation o f marking Special Access Programs (SAPs) material.
^. I f a n e x c e p t i o n a l s i t u a t i o n m a k e s i n d i v i d u a l m a r k i n g o f e a c h p a r a g r a p h o r other portionclearly impracticable,a
statement can be substituted describing the fact that portion markings were not used, and which portions are classified
and^orsensitiveandtheir levelofclassification^sensitivity. S u c h a s t a t e m e n t w i l l identify t h e i n f o r m a t i o n a s s p e c i f i cally as would have portion markings. Forclassification by compilation, the statement required by paragraph 2 13
meets this requirement.
^ Documents containing information classified by compilation will be marked as follows:
(1) I f portions, standing alone, are UNCEASS1F1ED, but the document is classified by compilation (see para2 13),
mark the portions as ^^(U)^^and the document and pages with the classification o f the compilation.^ou must also add
an explanation o f the classification as required in paragraph 2 13 o f this regulation.
(2) I f individual portions are classified and^or sensitive at one level, but the compilation results in a higher
classification^sensitivity,markeachportion w i t h i t s own classification^sensitivityandmarkthe pages,and the overall
classification^sensitivity of the document, withthehigherclassification^sensitivity o f the compilation. Anexplanation
o f t h e classification^sensitivity by compilation is required to be placed in the document, preferably on the cover or title
page
(3) D A M I CH w i l l be contacted for guidance on submission o f waivers or exceptions to policy concerning the
marking o f documents classified and^or sensitive by compilation.

4-7. Sources of classification-overview
Each classified document will be marked with the source o f t h e classification.For originally classified documents, that
identification w i l l be preceded by the term ^^Classified by^^. In cases o f derivative classification, the source o f
classification is derived from either:
(1) A classification guide or guidance.

AR 380-5 • 29 September 2000

23

23275

(2) Aclassified source document that was used to extract, summarize, restate, or paraphrase information fi^om the
source document into the new document.
(3) When compilations of items of information that are individually unclassified can be classified if the compilation
reveals an additional association or relationship that matches criteria for classification pursuant to paragraph2 8 o f this
regulation.For derivatively classified documents, the term ^^Derivedfrom^^ will precede the identification ofthe source
of classification.Thisisachange from previous policy.Previous policy required the use of the ^aclassified by^^ line for
both originally and derivatively classified documents. Current policy requires the use of the ^^Classifiedby^^ line only
for original classification documents and combination original and derived documents, and requires the useof the
^^Derivedfi^om^^ lineforonly wholly derivedclassifieddocuments. Seechapter2 forafurther explanation ofthe
differences between, and requirements for, originally and derivatively classified documents.

^ 8 . Sources of classification-procedures
^. Originallyclassified documents. Each originally classified document will havea^^Classifiedby^^ line placed on
thefaceofthedocument.The^^Classifiedby^^ line will identify the originalclassificationauthority responsiblefor
classification of the information contained in the document.The OCAwill be identified by name or personal identifier
(see paragraph2 17e for an explanation of the term ^^personalidentifieB^), and position title. If the information required
tobeincludedinthe^^Classifiedby^^line would revealclassifiedinformationnot evident fromeither the restof the
document or not evident from the face of the document, the ^^Classified by^^ line will be completed with an
UNCEASSIFIEDidentification (such as anUNCEASSIFIED personal identifier) that canbe traced throughsecure
channels.
^. Derivativelyclassified documents. Each derivativelyclassified document will havea^^Derivedfrom^^ line placed
on the face ofthe document. The term ^^Classified by^^ will not be used on classified documents that are wholly
derivative. The ^^Derived from^^ line will be completed as follows:
(1) If all the information was derivatively classified usingasingle security classification guide(orguidance)or only
one source document,identify the guide or the source document onthe^^Derivedfrom^^ line. Include the date of the
guide or document. If usingasource document that citesaguide as classification authority,use the guide rather than
the source document on the ^^Derived from^^ line.
(2) If morethan onesecurity classification guide, source document, orcombination of guide(s) and document(s)
provided the derivative classification guidance, use the term
Multiple Sources^^ on the ^^Derived from^^ line. If
^^MultipleSources^^ is placed on the ^^Derivedfrom^^line,arecord of the sources will be maintained on or with the file
or record copy of the document. Whenever feasible, this list should be included with all copies of the document.lf the
document hasabibliography or list of references,that can be used as the listing of sources as long as it is annotated to
delineate the sources ofclassificationfromthe other references. Adocument derivatively classifiedonthebasis o f a
sourcedocumentthat is itself marked ^^Multiple Sources^^ will citethesourcedocument on its^^Derived from^^ line
rather that the term^^MultipleSources^^.(For example,^^Derived from: Headquarters, Department of the Army Report,
Security 2001, an Army Odyssey, 10 February 1997, Office of the Deputy Chief of Staff for Intelligence
(DAMICH)B^)
^ Combination oforiginal and derivative classification. There can be situations in which some information in a
document is originally classified at the time of preparation of the document and some information is derivatively
classified.In those cases, mark the document witha^^Classifiedby^^ line and place ^^MultipleSources^^on the line. For
the information originally classified in the document, the OCA will be included in the list of sources required in
paragraph ^ 8b(2).

4-9. Reasonfororiglnal classification
Each originally classified document will bearaconcise line that describes the reason for the decision to classify.This
requirement appliesonly to originally classifieddocumentsanddoesnot apply to derivatively classified documents.
The ^^Reason^^ line will not be used on whollyderivatively classified documents.The^^Reason^^ line is placed between
the ^aclassified by^^ line and the ^^Declassifyon^^ line.The reason(s) to classify relates to the categories of what canbe
classified, as specified in paragraph 2 8. The ^^Reason^^ line will either:
^ State one or more of the reasons listed in paragraph2 8.For example: ^^Reason: Military plans,weapons systems,
or operations^^^ or ^^Reason: Foreign govemment information^^^ or ^^Reasons: Military plans, weapons systems, or
operations^ and foreign govemment information^^.
^. State the reasonin terms of listing the number ^^1.5^^ followed by the letter,in parentheses,that corresponds with
the appropriate category or categories of information listed in section 1.5ofE.O 12958.This is the same list shownin
paragraph 2 8 ofthis regulation. For example: I f t h e information is classified because it concems military plans,
weapons systems, or operations, mark the document: ^^Reason: 1.5(a)^^.lf the document is classified because it contains
foreign govemment information,markthedocument:^^Reason: 1.5(b)^^.If the document is classifiedfor both reasons,
mark the document: ^^Reasons: 1.5(a) and 1.5(b).^^
^. Forthosecasesin which the document contains bothoriginally classified andderivatively classifiedinformation.

24

AR 380-5 • 29 September 2000

23276

state the reason(s), as described in subparagraph a o r b o f t h i s paragraph, and add the words, ^^and derivatively
classifiedsource^^or ^^andderivatively c1assifiedsources^^,wheremorethanone derivative source document isused.

4-10. Oeclasslfication instructions—A^eclasslfy on^^ line
Each classified document (except those containing RD and FRD) w i l l b e marked on the face of the document w i t h a
^^Declassify on^^ line, with instructions for the declassification of the information. This applies for all classified
documents, both originally and derivatively classified. The ^^Declassify on^^ line w i l l be completed as follows:
^
I f a l l the classified information is the product oforiginal classification,the OCA
w i l l specify the instruction on the ^^Declassifyon^^ line.The instruction w i l l specify eitheradate for declassification,an
event for declassification, or an indication that the information is exempt from declassification within ten years.
(1) I f a n y informationin the document has been exempted from declassification within ten years, referred to as the
^^Ten^earRule,^^the^^Declassify on^^ l i n e w i l l b e c o m p l e t e d w i t h a n ^ ^ ^ ^ ^ f o l l o w e d b y a n u m b e r o r numbers which
show the applicableexemption category or categories from paragraph 2 11c. There is no alternative to listing the
category in this manner. For example, a document containing information requiring classification beyond ten years
because it wouldreveal information that would impair thedevelopmentor u s e o f technology w i t h i n a U . S . weapon
system (category number 3 under paragraph 2 11c) would bemarked: ^^Declassify on: ^3^^. Asanotherexample, a
document containing information requiring classification beyond ten years because it reveals U.S. military plans
(category number ^ under paragraph 2 l i e ) would be marked ^^Declassify on:
Note: Eisting the exemption
category number rather than the words describing the category is the preferred method o f citing declassification
exemption instructions within DOD.
(2) For cases in which it is possible for the Original Classification Authority to select a date or event for
declassification a t a p o i n t o c c u r r i n g more t h a n t e n y e a r s i n t h e f u t u r e , t h e date or event w o u l d f o l l o w the exemption
category number. An example is ^^Declassify on: ^ 3 , 11 November 201f^. There can be cases in which it is not
possible for the OCA to selectafuture date or event for declassification.In those cases,only the exemption category
w i l l be listed. Examples for those cases, such as ^^Declassify on: ^3^^, are shown in subparagraph (1), above.
(3) I f morethan one exemption applies, the OCA will list each exemption. Forexample, adocument originally
classified beyond ten years because it would reveal information that would impair the development or use o f
technology w i t h i n a U . S . w e a p o n s system (exemption category3) and that also contains foreign govemment information (exemption category 5) would be marked, ^^Declassify on: ^3,5^^.
(^) Regardless o f t h e exemption category used, or whether or not a date or event for declassification has been
selected,the informationcanbesubject totheautomaticdeclassificationprovisionsof the current EO or statuteon
classification. EO 131^2, t h e m o s t recent amendmentto EO 12958, section 3.^, requires all classified information
contained in records that w i l l b e m o r e t h a n 25 yearsold on 17 October 2001, andhave been determined to have
permanent historical value underTitle
u s e , t o be declassified o n 1 7 October 2001,unless the information has been
exempted.The current c r i t e r i a f o r e x e m p t i o n f o r 2 5 y e a r o l d i n f o r m a t i o n i s c o n t a i n e d i n c h a p t e r 3 o f t h i s r e g u l a t i o n
and in section 3.^ of EO 12958. It is impossible to predict what criteria will apply to any future automatic
declassificationprograms. It is important for OCAs to carefully select t h e a p p r o p r i a t e e x e m p t i o n c a t e g o r y ( w i t h o r
withoutadeclassification date or event) for currently classified information.Future automatic declassification programs
might use a f o r m u l a t o convertcurrent exemptionsto future criteriaused in reviewingoldclassifieddocuments. I f
more than one exemption applies, it is important to list each exemption category.
^. Derivatively classified documents.lnaderivatively classified document there may be one source from which the
classificationis derived,or there may be severalsources.The source mayhave been classified after 1^ October 1995
(the date the requirements o f EO 12958 went into effect) and reftects the current system of conveying declassification
instructions.The source may have been classified prior to 1^ October 95 under the former systemin which the use o f
the term Originating Agency Determination Required (OADR) was often used. Or, the source may have been classified
after I ^ O c t o b e r 9 5 but s t i l l r e f l e c t s t h e f o r m e r system ofconveyingdeclassification instructions. Even incases in
which only one source document is used, and often in cases in which several sources are used, different declassification
instructions may apply to the various items of information in the document being created. To ensure that all the
informationin the document is protectedfor aslong as necessary,the most restrictive declassificationinstructionthat
applies to any of the information in the document w i l l be placed on the ^^Declassify on^^ line. The term ^^most
restrictive^^means thelatest date or event.or the date or event furthest i n t h e f u t u r e . T h r o u g h o u t this regulationthe
term^^OADR^^is used strictly because there are documents out there with this term.The term^^OADR^^isnolonger
authorized.
(1) I f all the information in the document has the same declassification instruction (i.e. same date, event, or
exemptioncategory or categories), and that instructionis an allowable optionunder the new policy contained i n E O
12958 as stated in this regulation, place that instruction on the ^^Declassify on^^ line. The allowable options are:
A date or event for declassification within 10 years from original classification.
(^^^ An exemption category for information classified beyond 10 years (see paragraphs lOa) such as ^^^^.^^ When
an exemption category is used, it may or may not b e f o l l o w e d by adeclassificationdateorevent, depending upon
whether the original classification authority has selected a declassification date or event.

AR 380-5 • 29 September 2000

25

23277

For documents that will be over 25 years old onl70ctober 2001,and are contained in records that have been
determined to have permanent historical value underTitle
ofthe USC, an exemption category or categories as
shown in chapter 3.
^ The source may be marked with one ofthe indefinite markings used before the term ^^OADR^^ was authorized.In
such cases, any informationwith indefinitedeclassification instructions will betreatedasthough it weremarked as
OADR.
(^^^ There are two different lists of exemption categories. One list applies to information that requires classification
for more than lOyears.This list is contained in paragraph2 lie.The other list applies to information contained in the
exempted file series list and that will be more than 25 years old by 17 October, 2001. That list is contained in
paragraph 3 ^ e .
(2) If all the information in the document has been extracted fromadocument created before 1^ October 1995 (the
effective date of EO 12958) and was marked ^^OADR^^,place the statement ^^Source marked OADR^^on the ^^Declassify
on^^line,followed by the date of the document after the words ^^Date of Source^^. For example,aderivative classifier
extracts classified information fromadocument dated3June1992 and marked ^^OADR^^.The newly created document
containing that extract willbe marked,^^Declassify on: Source marked OADR^ Date of Source:3 June 1992.^^ When
using several sources of information marked ^^OADR^^,the^^Date of Source^^ line will reflect the most recent date (the
document with the latest date).For example, one source is dated2August 1993 and one is dated 1 September 1995.In
this case, the newly created derivatively classified document will be marked:
Derived from: Multiple Sources
Declassify on: Source marked OADR^
Date of Source: 1 September 1995
(3) Nomatterwhatcombinationof indefinite declassificationinstructionsanddocument dates usedassourcesto
derivatively classify the document, the document originator will only select the source document with the most recent
date and this will determine the date to place on the ^^Date of Source^^line.Follow this policy for all cases involving
information classified under previousExecutive Orders that contain indefinite declassificationinstructions.Follow this
policy for all cases involving information extracted from a document created after 1^ October 1995 that was
mistakenly marked as OADR.Where practical and feasible, notify the originator of that mistakenly marked document
of the outdated declassification instructions and obtain the current correct markings.
(^) If the document is classified by more than one source (^^multiple sources^^) and different declassification
instructions apply, the derivative classifier will place the most restrictive declassification instruction on the ^^Declassify
on^^ line.The most restrictive declassificationinstructionis the date or event that will occur farthest inthe future (the
longest date from now). The following applies:
If declassification dates are specified for all of the sources of information used in the document, place the latest
date (date farthest in the future)on the ^^Declassifyon^^ line. For example, in creatinganew document, information is
extracted from documents marked for declassification on 20 March 1998,1 June 2002,and3 April 2009.The newly
created document will be marked: ^^Declassify on: 3 April 2009^^.
If the sources of classification areacombinationofadate or dates with an event or events, the declassification
instruction willreflect whichever date and event occurslater(date or event farthest in thefuture). If the date of the
event(s)isunknown,the declassification instruction willreflect themost restrictive date andlatestoccurrence of the
event(s).For exan^ple, one source specifiesadeclassification date of 11 November2011,andtheotheradeclassifica
tion event upon execution ofoperations.In this case, the document will be marked: ^^Declassify on: 11November2011
or execution of operations, whichever is later^^.
If any of the information in the document does not have a specific date or event for declassification, the
originator ofthe derivatively classified document will apply the most restrictive declassification instruction,according
to the following:
^. When using information classified underapreviousEO, any information with an indefinite declassification (such
asGroup 3 or OADR) istreatedas if it weremarked^^OADR^^andmarkedasspecified inparagraph^9b.
2 When using information from sources marked with the current E012958 exemption markings (^Ithrough ^8),
the ^^Declassifyon^^ line will be marked with all exemptions that apply to all sources used. For example, if one source
cited ^^^2^^,another cited ^^^3^^ and the third cited ^^^5^^,the Declassify on line would read: ^^Declassify on: ^2,3,5^^.
The most recent date will be used on the ^^Date of Source^^ line. For example,aderivatively classified document that
uses three sources with the latest source dated 10 February 199^, will be marked:
Derived from: Multiple Sources
Declassify on: Sources marked ^2,3,5
Date of Source: 10 February 199^
When usingoneormoresourcesmarked withan indefinite declassificationfrom aprevious ExecutiveOrder
(such as OADR) as well as one or more sources marked with the current E012958 exemption markings (^1 through
^8),the^^Declassify on^^ line willcitethe exemptioncategory or exemptioncategories as well as^^sourcemarked
OADR^^.The^^Date of Source^^ line will cite the date of the most recent source. For example.aderivatively classified
document that uses the three sources mentioned in subparagraph (2), above, and also usesasource dated 1 September

26

AR 380-5 • 29 September 2000

23278

1995 and marked OADR w i l l be marked:
Derived fi^om: Multiple Sources
Declassify on: Sources marked ^2,3,5 and OADR
Date o f Source: lOFebruary 199^
^. The above rules apply to derivatively classified documents when acombination o f o r i g i n a l classification and
derivative sources are used. T h e t e r m ^^sources^^ as used above also includes the classification guides or guidance
supplied by the original classifier.
With sources havingacombination o f differing declassification instructions, it is important to determine which is
the most restrictive. The most restrictive marking w i l l always be used. This mie applies for all derivative classifications
including those in which there isacombination o f derivative sources and original classification. A m a r k i n g that does
not provideadefinite declassification date will always be considered more restrictive than one withaspecific date. For
instance,adocument that is classified by two sources, one dated l 9 A u g u s t 199^ and marked ^^OADR^^ and the other
dated lODecember 1995 and marked ^^Declassify on: 2 ^ M a y 200^^^,will be marked: ^^Declassify on: Source marked
^^OADR^^,Date o f Source: 19August 199^^^.Seesubportion (3) directly above for an example o f a c a s e in which one
sourceis marked O A D R and the other is marked with one or more o f the exemptioncategories (^1 through ^ 8 ) of
ExecutiveOrder 12958.

^ 1 1 . Sources tf^atwerecreated prior to 1978
Chapter3provides the policy for marking information contained in records that w i l l be more than 25years old on 17
October 2001,and have been determined to have permanent historical value under title
USC. In summary,under
EO 131^2,amendment to EO 12958,section 3.^,information more than 25years old by 17October 2 0 0 1 , a n d t h a t i s
contained in records that have been determined to have permanent historical value under title
USC w i l l be
automaticallydeclassified starting on 17October 2001,unless that informationis exempted from declassification.The
exemption categories, required markings, and t h e D A p o l i c y for handling this p r o g r a m a r e d i s c u s s e d i n c h a p t e r 3 o f
this regulation.This sectionis not intended to prescribe the policy for addressing the review o f that information.That
policy is c o n t a i n e d i n c h a p t e r 3 . T h i s section prescribes the policy to follow when material.that w i l l be over25years
old by 17 October 2001,is used as the source for derivatively classifyinganewly created documentCommands w i l l
consult AR 2 5 ^ 0 0 2 andlocalrecords managers for advice o n w h a t c o n s t i t u t e s a f i l e determined to have permanent
historical value underTitle ^ ^ , U S C . I n creating new documents using the old sources that will be over25years on 17
October 2001,it w i l l makeadifference whether or not the information has already been reviewed to determine i f it is
i n a r e c o r d t h a t h a s b e e n d e t e r m i n e d t o h a v e p e r m a n e n t h i s t o r i c a l value and whether or not it h a s b e e n r e v i e w e d t o
determine i f i t will be declassified or exempted from automatic declassification. There are three possible options:
^. The information i s d e t e r m i n e d t o b e o f permanent historical valueunder title
USC, hasbeen reviewed for
continued classification, and qualifies under one or more o f t h e exemptions listed in paragraph 3 ^ e o f t h i s regulation
(section 3.^ of EO 12958). I f i t qualifies for exemption, the exemption category and the future date or event for
declassification ( i f one applies)will be shown on the document,file,or record. When one of these documentsis used
a s a s o u r c e inclassifyingaderivatively classifiednewly createddocument,usetheterm s h o w n o n t h e documentor
record that was applied when the information was reviewed. That term will be^^25^^^ followed by the appropriate
exemption category that pertains to information exempted from declassification at 25 years and state the new
declassification date or event, i f one has been determined.For example,^^25^3(31 December2015)^^ i f t h e information
is exempted because it reveals information that would impairU.S.cryptologic systems and now has been determined to
bedeclassified on 31 December2015. Sometimes there w i l l only be theexemption category with n o d a t e o r e v e n t
listedfor declassification. For e x a m p l e , ^ ^ 2 5 ^ f ^ i f theinformation w o u l d r e v e a l t h e i d e n t i t y o f a h u m a n intelligence
source.
^. T h e i n f o r m a t i o n i s c o n t a i n e d i n a r e c o r d that has been determined to have permanent historical value under title
USC, has been reviewed, and has been determined to not qualify for exemption. This information w i l l have been
marked with a declassification date or event on or before 17 October 2001. This date or event w i l l be used as
declassification instructions.
^. The information is either i n a r e c o r d that has been determined to not have permanent historical value under title
^ ^ U S C ^ o r i s i n a r e c o r d that has been determined to have permanent historical value under title ^ ^ U S C but has not
yet been reviewed for declassification.This information would be subject to declassification 25years from the date o f
its origin. Thus, thedate o f t h e sourcedocument w i l l be placed, asthe following, fordeclassification instructions:
Source marked O A D R
Date o f Source:(fill in applicable date)
4-12. e a r n i n g notices
Incertaincircumstances, warning notices w i l l b e r e q u i r e d i f the documentcontainscertaincategories o f information
for which the notice applies. In addition to the notices listed below, other notices may be required by other DA
regulations. Unless another regulation or authorized administrative publication prescribes different placement, these
notices w i l l be placed on the cover (or first page where there is no cover) o f the document.
^ ^ ^ . ^ ^ B ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ Documents containing RD w i l l be marked: ^^RESTRICTEDDATA^^ THIS M A T E R I A E

AR 380-5 • 29 September 2000

27

23279

CONTAINS RESTRICTED DATA AS DEFfNED IN THE ATOMIC ENERGY ACT OF 1954. UNAUTHORIZED
DISCLOSURE SUBJECT TO ADMINISTRATIVE AND CRIMINAL SANCTIONS.
b. Formerly Restricted Data (FRD). Documents containing FRD, but no Restricted Data, will be marked:
"FORMERLY RESTRICTED DATA" "Unauthorized disclosure subject to administrative and criminal sanctions.
Handle as Restricted Data in foreign dissemination. Section 144.b, Atomic Energy Act, 1954."
c. Critical Nuclear Weapons Design Information (CNWDI). Messages containing CNWDI will be marked at the
beginning of the text as "RD CNWDI." Documents containing CNWDI will be marked: "Critical Nuclear Weapons
Design Information DOD Directive 5210.2 applies"
d. Intelligence Information. The policy on the control, dissemination, and marking of waming notices conceming
intelligence information is contained in appendix D. Placement of these intelligence control markings will follow the
same policy as stated in appendix D.
e. COMSEC Material. The following marking will be placed on COMSEC documents before release to contractors:
"COMSEC Material - Access by Contractor Personnel Restricted to U.S. Citizens Holding Final Govemment
Clearance."
/ Reproduction Notices. Classified information that is subject to dissemination or reproduction limitations will be
marked with notices that say, in essence, the following: "Reproduction requires approval of originator or higher DOD
authority of the originator". "Further dissemination only as directed by (insert appropriate office or official) or higher
DOD authority"
g. Special Access Programs (SAPs) Documents. Special Access Programs documents may be identified with the
phrase "Special Access Required" and the assigned nickname, codeword, trigraph, or digraph. AR 380-381 contains
the Department of the Army policy on marking SAPs material. See appendix I for further information.
h. DODD 5230.24 requires distribution statements to be placed on technical documents, both classified and unclassified. These statements facilitate control, distribution and release of these documents without the need to repeatedly
refer questions to the originating activity. The originating office may, of course, make case-by-case exceptions to
distribution limitations imposed by the statements. Distribution statements on technical documents will be marked with
notices that say, in essence, the following:
(1) Distribution Statement A — Approved for public release; distribution is unlimited.
(2) Distribution Statement B — Distribution authorized to U.S. Govemment agencies only; [reason]; [date]. Other
requests for this document shall be referred to [controlling DOD office].
(3) Distribution Statement C — Distribution authorized to US Govemment agencies and their contractors; [reason];
[date]. Other requests for this document shall be referred to [controlling DOD office].
(4) Distribution Statement D — Distribution authorized to the DOD and US DOD contractors only; [reason]; [date].
Other requests for this document shall be referred to [controlling DOD office].
(5) Distribution Statement E — Distribution authorized to DOD Components only; [reason]; [date]. Other requests
for this document shall be referred to [controlling DOD office].
(6) Distribution Statement F — Further distribution only as directed by [controlling DOD office] or higher DoD
authority; [date].
(7) Distribution Statement X — Distribution authorized to US Govemment agencies and private individuals or
enterprises eligible to obtain export-controlled technical data in accordance with regulations implementing 10 USC
140c; [date]. Other requests must be referred to [controlling DOD office].
/. Documents containing information provided by a foreign govemment. See section VI of this chapter for complete
policy on marking foreign govemment information in classified DA documents. U.S. classified documents that contain
extracts of information provided by a foreign government will be marked with the following waming notice:
"FOREIGN GOVERNMENT INFORMATION"
/ Documents containing information provided by a foreign govemment or intemational organization. See section
VII of this chapter for complete policy on marking information provided by a foreign govemment or intemational
organization. Examples of an intemational organization are the United Nations (UN) and the North Atlantic Treaty
Organization (NATO). The following example pertains to NATO. The same policy applies to any other intemational
organization by replacing the word "NATO" with the appropriate name or abbreviation for that organization. DA
classified documents that contain extracts ofNATO classified information will bear a marking substantially as follows:
"THIS DOCUMENT CONTAINS NATO CLASSIFIED INFORMATION"
k. The following waming notice must appear on all U.S. Govemment owned or operated automated information
systems:
"THIS IS A DOD COMPUTER SYSTEM. BEFORE PROCESSING CLASSIFIED INFORMATION, CHECK THE
SECURITY ACCREDITATION LEVEL OF THIS SYSTEM. DO NOT PROCESS, STORE, OR TRANSMIT INFORMATION CLASSIFIED ABOVE THE ACCREDITATION LEVEL OF THIS SYSTEM. THIS COMPUTER SYSTEM, INCLUDING ALL RELATED EQUIPMENT, NETWORKS, AND NETWORK DEVICES (INCLUDES
INTERNET ACCESS), ARE PROVIDED ONLY FOR AUTHORIZED U.S. GOVERNMENT USE. DOD COMPUTER SYSTEMS MAY BE MONITORED, FOR ALL LAWFUL PURPOSES, INCLUDING TO ENSURE THEIR
USE IS AUTHORIZED, FOR MANAGEMENT OF THE SYSTEM, TO FACILITATE PROTECTION AGAINST

28

AR 380-5 • 29 September 2000

23280

UNAUTHORIZED ACCESS, AND TO VERIFY SECURITY PROCEDURES, SURVIVABILITY,AND OPERA
TIONAL SECURITY MONITORINGINCLUDES, BUT IS NOT LIMITED TO, ACTIVE A T T A C K S B Y A U
THORIZED DOD ENTITIES TO TEST OR VERIFY THE SECURITY OF THIS SYSTEM, DURING
MONITORING, INFORMATION M A Y B E EXAMINED, RECORDED, COPIED AND USED FOR AUTHORIZED
PURPOSES ALL INFORMATION, INCLUDING PERSONAL INFORMATION, PLACED OR SENT OVER THIS
SYSTEM M A Y B E MONITORED USE OF THIS DOD SYSTEM, AUTHORIZED OR UNAUTHORIZED, CON
STITUTES CONSENT TO MONITORING UNAUTHORIZED USE OF THIS DOD COMPUTER SYSTEM MAY
SUBJECT YOU TO CRIMINAL PROSECUTION. EVIDENCE OF UNAUTHORIZED USE COLLECTED DURING
MONITORING M A Y B E USED FOR ADMINISTRATIVE, CRIMINAL, OR OTHER ADVERSE ACTION. USE OF
THIS SYSTEM CONSTITUTES CONSENT TO MONITORINGFOR ALL LAWFUL PURPOSES"
^. Other WamingNotices. Subparagraphsathrough kaboverepresentthemostcommonly used wamingnotices.
They do not necessarily represent the only waming notices. There is nothing in this regulation that prohibits other
authorized waming noticesfrombeing applied to classified documents. Where other regulations authorize and require
special waming notices, they may be applied to DA classified documents.

^I^.OI^solete Restrictions and Control l^arl^lngs
8. Thefollowingcontrolmarkings are obsolete andwillnot be used.in accordance withthefollowing guidelines:
(1) ^^^^7^^^
^C^C^^^TT^BICT^ The control markings, Waming Notice
Intelligence Sources or Methods
Involved (WN1NTEL), and NOT RELEASABLE TO CONTRACTORS^CONSULTANTS (abbreviated
NOCONTRACTorNC) were rendered obsolete effective12 April 1995.No permission ofthe originator is required to
release,in accordance with this directive,materialmarkedWNINTEL. Holders ofdocuments prior to 12 April 1995
bearing theNOCONTRACTmarking should apply the policies and procedures contained in DCID 1^7,section ^.1,for
possible release of such documents.
(2) ^^^^^^^^^ Remarking of material bearing theWNINTEL, or NOCONTRACT,control marking is not required;
however, holders of material bearing these markings may line through or otherwise remove the marking(s) from
documents or other material.
(3) Obsolete markings Other obsolete markings include: WARNING NOTICE INTELLIGENCE SOURCES OR
METHODS INVOLVED, WARNING NOTICE SENSITIVE SOURCES AND METHODS INVOLVED, WARNING
NOTICE INTELLIGENCE SOURCES AND METHODS INVOLVED, WARNING NOTICE SENSITIVEINTELLI
GENCE SOURCES AND METHODS INVOLVED, CONTROLLED DISSEM, NSC PARTICIPATING AGENCIES
ONLY, INTEL COMPONENTS ONLY, L1M1TED,CONTINUED CONTROL, NO DISSEM ABROAD, BACK
GROUND USE ONLY,USIB ONLY, NFIB ONLY
^. Questions with respect to current applications of all control markings authorized by earlier directives on the
disseminationandcontrol of intelligenceand used ondocuments issuedprior tothe effectivedate of DCID 1^7,30
Jt^ne 1998, should be referred to the agency or department originating the intelligence so marked.

^ 1 ^ . Downgrading Instructions
Downgrading instructions are not required for everyclassified document, but they must be placed on theface ofeach
document to which they apply. When the original classification authority has determined that a document will be
downgraded toalower classification upon the passage ofadate or event, the document will be marked: "Downgrade to
SECRETon..."followed by the date or event, and^or "Downgrade to CONFIDENTIAL on..."followed by the date or
event. Thismarkingisplaced immediately beforethe"Declassify on" lineand is used in additionto, and not asa
substitute for, declassification instructions.
4-15. Tf^e l^odern Arn^y Recordl^eeplng Systen^
^. ^^^B^^^.^^ The purpose ofArmy recordkeeping is to properly manage infbrmation.fromits creation throughfinal
disposition, according to federal laws and Army recordkeeping requirements. AR 25^00 2:
(1) Establishes the Modem Army Recordkeeping System (MARKS) asaportion of the Army Information Resources
Management Program (AIRMP).
(2) Fumishes the only legal authority for destroying nonpermanent Army information.
(3) Provideslife^ycle management instructionsfor the systematicidentification, maintenance, storage, retirement,
and destruction of Army information recorded on any medium (paper, microforms, electronic, or any other).
(4) Ensures that the commander and staff have the information needed to accomplish the mission; that they have it
when and where they need it; that they have it in usable format; and that it is created, maintained, used, and disposed
of at the least possible cost.
(5) Preserves those records needed to protectthe rights and interests of the Army and its members and former
members, and those that are of permanent value.
(^) Ensures records related to matters involved in administrative or legal proceedings will be retained until the staff
judge advocate or legal adviser authorizes resumption of normal disposition.
(7) Provides for the systematic removal of less active records from office space to low cost storage space.

AR 380-5 • 29 September 2000

29

23281

^. Bf^^^^^^r^^^. M A R K S applies t o —
(1) Allunclassifred Army records,including For Official Use Only (FOUO) and sensitive,regardless o f media.
(2) A l l classified Army records through SECRET.Records that are TOP SECRET may be set up under M A R K S , or
in any manner that w i l l make accountability andcontrol easier. Regardlessofthearrangement used, however, the
disposition instructions i n t h i s r e g u l a t i o n , a n d u n d e r M A R K S , will b e a p p l i e d t o T O P S E C R E T r e c o r d s

^.
(1) Within the M A R K S system, records are identified and filed underthe number o f t h e primary directive that
prescribes those records be created, maintained, and used.
(2) The file number is the key to M A R K S . It identifies the records for filing and retrieval. M A R K S numbers are
made up by the prescribing directive number followed by an alpha suffix. See section I I , appendix F, for the
recordkeeping requirements o f file titles and dispositions for records created and maintained under the purview o f this
regulation.
^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ . F u r t h e r guidance on the management and disposition o f files and records can be found in A R
2 5 ^ 0 0 2.

Section II
l^arl^lngSpeclalTypesof Oocunnents
^ 1 8 . Oocun^ents wltf^ con^ponent parts
Ifaclassifiedand^or sensitive document has components likely to be removed and used or maintained separately.each
component w i l l be marked asaseparate document. Examples of components are annexes,appendices, major parts o f a
report,or reference charts. I f the entire major component i s U N C L A S S I F I E D , it canbe marked o n i t s f a c e , t o p and
bottom: " U N C L A S S I F I E D " , and astatement added: " A l l p o r t i o n s o f t h i s ( a n n e x , appendix, etc.)are UNCLASSI
FIED." No further markings are required on this type of component.

^17.Transmlttaldocuments
Transmittals are documents that have classified and^or sensitive documents enclosed with or attached to them. An
example is a letter with classified enclosures or adocument that is used to describe the transmission o f classified
equipment, documents, or other materiaL The transmittal document itself may contain information classified and^or
sensitive the same or higher than the material transmitted. Often the transmittal document itself is UNCLASSIFIED or
classified at a lower level than the material being transmitted or enclosed.
^. I f t h e t r a n s m i t t a l contains i n f o r m a t i o n c l a s s i f i e d a n d ^ o r s e n s i t i v e t h e s a m e o r h i g h e r t h a n t h e d o c u m e n t s b e i n g
transmitted, the transmittal w i l l be marked the same as any other classified and^or sensitive document.
^ I f theinformation i n t h e t r a n s m i t t a l i s U N C L A S S I F I E D or classified a t a l o w e r l e v e l t h a n o n e or more o f the
documents being transmitted, the transmittal w i l l be marked as follows:
(1) Mark the face o f the transmittal conspicuously,top and bottom,in letters larger than the rest o f the text,with the
highest classification found in any o f t h e enclosed documents being transmitted. Forexample, an UNCLASSIFIED
transmittal that has one SECRETand t w o C O N F I D E N T I A L e n c l o s u r e s o r a t t a c h m e n t s w i l l bemarked "SECRET".

(2) Mark the face of the transmittal to show its classification status when separated from the material being
transmitted For example, the following or similar statements apply: "UNCLASSIFIED WHEN SEPARATED FROM
CLASSIFIED ENCLOSURES,""UNCLASSIFIED WHEN ATTACHMENT3ISREMOVED,""CONFIDENTIAL
UPON REMOVAL OF ENCLOSURES,""REGRADEDCONFIDENTIALWHEN SEPARATED FROM ENCLO
SURES,"etc
^. Any special waming notices that apply to the transmittal or to the documents being transmitted w i l l be placed on
the face o f the transmittal document.Transmittals that are classified standing alone will be marked the same as other
classified documents.UNCLASSIFIED transmittals will not be portion marked.The marking o f classification at the top
and bottom o f interior pages of an UNCLASSIFIED transmittal is not required, but is encouraged.

4-18. Classification l^y con^pllation
W h e n a d o c u m e n t is classified and^orsensitiveby compilation as discussedinparagraph2 1 3 , i t w i l l b e marked as
specified in paragraph 4 ^ d .

4-19. Translations
Translations ofU.S.classified and^or sensitive information intoaforeignlanguage.will be marked with the appropriate
U.S.classification^sensitivity markings and the foreign language equivalent. S e c t i o n V I I I , o f this chapter, containsalist
o f foreign language classifications. The translations w i l l clearly show the United States as the country o f origin.

4-20. electronically transn^itted nnessages
T h i s s e c t i o n d o e s n o t pertain to documents transmittedby facsimile (FAX)transmission. Classified and^or sensitive

30

AR 380-5 • 29 September 2000

23282

^l^a^t^r^
Oontr^ll^d ^t^cla^^t^i^d In^^rtnati^rt
Section I
^or Official OseOnly Inforn^atlon
5-1. General
^ The requirements ofthe information security program apply only to information that requires protection in order
to prevent damage to the nationalsecurityand has been classifiedin accordance withEO 12958 or its predecessors.
There are other types of information that require application of controls and protective measures fora variety of
reasons. In accordance with DODD 5200.1 Rthis information is known as Controlled Unclassified Information (CUI).
Since classifiedinformation and CUIexist side by sideintheworkenvironment.ofteninthe same documents,this
chapter is provided as an attempt to avoid confusion and promote proper handling. It covers several types of CUI, and
provides basic information about the nature of this information and the procedures for identifying and controlling it.ln
some cases, the chapter refers to other DOD directives that provide more detailed guidance.
^. Thetypesof informationcovered inthischapterinclude"For Official Use Only" information, "Sensitive But
Unclassified" (formerly "Limited Official Use") information,"DEA Sensitive 1nformation,""DOD Controlled Unclassified Nuclear lnformation,""Sensitivelnformation"as defined in the Computer SecurityAct of 1987,and information
contained in technical documents.
5-2. Description
^. For OfficialUse Only (FOUO)isadesignation that is applied to unclassified informationwhich is exempt fi^om
mandatory release tothe public under theFreedomof Information Act (FOIA) (see AR 25 55 for more details).The
FOIA specifies ninecategoriesof information whichcanbewithheldfrom release ifrequestedby amemberofthe
public. They are:
(1) Information which is currently and properly classified.
(2) Information which pertains solely to the intemal rules and practices ofthe agency. This exemption has two
profiles, "high"and"low."The"high"profilepermitswithholdingof adocument which, if released, wouldallow
circumvention ofan agency rule,policy,orstatute,thereby impeding theagency in theconductof itsmission. The
"low"profilepermits withholding, if thereisnopublicinterest inthe document,and it would beanadministrative
burden to process the request.
(3) Informationspecificallyexemptedbyastatute establishing particular criteriaforwithholding.Thelanguage of
the statute must clearly state that the information will not be disclosed.
(4) Information, such as trade secrets and commercial or financial information obtained from a company on a
privileged or confidential basis, which, if released, would result in competitive harm to the company, impair the
govemment^s ability to obtainlikeinformationin the future,or protect the govemment^sinterest in compliance with
program effectiveness.
(5) Intra agency memoranda which are deliberative in nature; this exemption is appropriate for intemal documents
which are part of the decision making process and contain subjective evaluations, opinions and recommendations.
(^) Information, the release of which could reasonably be expected to constituteaclearly unwarranted invasion of
the personal privacy of individuals.
(7) Records or information compiled for law enforcement purposes that:
Could reasonably be expected to interfere with law enforcement proceedings.
(^^^ Would deprive a person of a right to a fair trial or impartial adjudication.
(^c^ Could reasonably be expected to constitute an unwarranted invasion of personal privacy of others.
Disclose the identity of a confidential source.
Disclose investigative techniques and procedures.
^ Could reasonably be expected to endanger the life or physical safety ofany individuaL
(8) Certain records of agencies responsible for supervision of financial institutions.
(9) Geological and geophysical information conceming wells.
^. Information which i^eurrentlyandproperlyclassifiedcanbewithheldfrommandatory release under thefirst
exemption category (subparagraph(l)above). FOUO is applied to information which is exempt under one of the other
eight categories (subparagraphs (2) through (9) above). So, by definition, information must be unclassified in order to
be designated FOUO. If an item of information is declassified, it can be designated FOUO if it qualifies under one of
those other eight categories. This means that:
(1) Information cannot be classified and FOUO atthe same time; and

AR 380-5 ^29 September 2000

57

23283

(2)lnformation which is declassified can be designated FOUO, but only I f i t fits into one of the last eight exemption
categories (categories(2) through (9) above).
^. The FOIA provides that, for information to be exempt from mandatory release, it must fit into one ofthe
qualifyingcategories andtheremustbealegitimategovemment purpose servedbywithholdingit. Simply because
information is marked FOUO does not mean it automatically qualifies forexemption. If arequest for arecord is
received,theinformationmustbereviewed to seeif it meets this dual test.Onthe other hand,the absence of the
FOUO markingdoes not automatically meantheinformation must be released. Some types of records (for example,
personnel records) are not normally marked FOUO, but can still qualify for withholding underthe FOIA. Only
personnel officially appointed as a Release Authority can release Army information.

5-^. I^arl^lng
^. Information which hasbeen determined toqualify for FOUOstatus should be indicated, by markings, when
included in documents and similar material.Markings should be applied at the time documents are drafted,whenever
possible, to promote proper protection of the information.
^. Wholly unclassified documents and material containing FOUO information will be marked as follows:
(1) Documents will be marked " F O R O F F I C I A L U S E O N L Y , " i n letters larger than the rest of the text,where
practical, at the bottom of the front cover (if there is one), the title page (if there is one), the first page, and the outside
of the back cover (if there is one).
(2) Pages ofthe document which contain FOUO infomiation will be marked "FOR OFFICIAL USE ONLY" at the
bottom.
(3) Material other than paper documents, for example, slides, computer media, films, etc., will bear markings which
alert the holder or viewer that the material contains FOUO information.
(4) FOUO documents and material, transmitted outside the Department of Defense, must bear an expanded marking
onthefaceofthedocumentsothatnon DOD holders understand the status of the information. Astatement similar to
this one should be used: This document contains information Exempt from mandatory disclosure underthe FOIA.
Exemption(s) (indicate the exemption(s)) apply.
^. Classified documents and material containing FOUO information willbe marked as required by chapter4of this
regulation, with FOUO information identified as follows:
(1) Overall markings on the document will follow the procedures in chapter 4. No special markings are required on
the face of the document because it contains FOUO information.
(2) Portions of the document will be marked with their classification as required by chapter 4. If there are
unclassified portions which contain FOUO information, they can be marked with "FOUO" in parentheses at the
beginning of the portion. Since FOUO information is, by definition, unclassified, the "FOUO" is an acceptable
substitute for the normal " U . "
(3) Pages ofthe document which contain classified information will be marked as required by chapter4 ofthis
regulation. Pages whichcontain FOUO information butnoclassified informationwill bemarked"F0R0FF1CIAL
USE O N L Y " a t the top and bottom.
^. Transmittal documents which have no classified material attached, but do have FOUO attachments, will be
marked withastatement similar to this one: "FOROFF1CIAL USE ONLYATTACHMENT."
^. Each part of electronically transmitted messages containing FOUO information will be marked appropriately.
UnclassifiedmessagescontainingFOUO information will contain theabbreviation "FOUO"beforethebeginningof
the text.

5-^. Accessto ^OOO Inforn^atlon
FOUO information can be disseminated within DOD components and between officials o f A r m y components and
Army contractors,consultants,andgrantees,asnecessary,inthe conduct ofofficialbusiness. FOUOinformationcan
also be released to officials in other departments and agencies of theExecutive and Judicial Branches in performance
ofavalidgovemment function. Special restrictions can apply toinformation covered by thePrivacyAct.Release of
FOUOinformationtomembersofCongressiscoveredbyDODD 5400.4, and to the General Accounting Office by
DODD 7^501

5-5. f^rotectlon of ^ 0 0 0 Inforn^atlon
^ During working hours, reasonable stepsshould betakentominimizeriskofaccessby unauthorized personneL
After working hours, FOUO information can be stored in unlocked containers, desks or cabinets ifU.S.Govemment or
U.S. Govemment^ontract building security is provided, or in locked desks, file cabinets, bookcases, or similar items.
^ FOUO documents and material can be transmitted via first class mail, parcel post, or, for bulk shipments, fourth
classmaiL Electronictransmissionof FOUO informationbyvoice,data,^csimile or similar means,shouldbeby
approved secure communications systems whenever possible.

58

AR 380-5 • 29 September 2000

23284

^ Record copies of FOUO doctiments will be disposed of in accordance with AR 25^00 2 Non record FOUO
documents can be destroyed by shredding or tearing into pieces and discarding the pieces in regular trash containers.

5^. ^urtf^er guidance
Further guidance on safeguardingpersonal information is contained in DOD 5400.11 R.

Section II
Sensltlve8utOnclassifiedand l^ln^lted Official Oselnforn^atlon
5-7. Description
Sensitive But Unclassified (SBU) information is information originated within the Department of State which warrants
adegree of protection and administrative control and meets the criteria for exemption from mandatory public disclosure
under the Freedom of Information Act. Prior to 2^ January 1995, this information was designated and marked Limited
Official Use (LOU). The LOU designation will no longer be used.
5-8. I^arl^lng
The Department of State does not require that SBU information be specifically marked, but does require that holders be
made aware of the need for controls. When SBU informationisincludedinDOD documents,the documents willbe
marked as ifthe information were FOUO. There is no requirement to remark existing material containing LOU
information.

5-9. Accessto S8l.f Inforn^ation
Within the Department of the Army.the criteria for allowing access to SBU information are the same as those required
for FOUO information (see paragraph 5^).

5-10. protection of S8t^ inforn^atlon
Within the Department of the Army, SBU information will be afforded the same protection as that required for FOUO
information (see paragraph 5 5).

Section ill
Orug ^nforcen^ent Adn^lnlstration Sensitive Infornnatlon
5-11. Description
Drug Enforcement Administration (DEA) sensitive information is unclassified information which is originated by DEA
and requires protection against unauthorized disclosure in order to protect sources and methods ofinvestigative activity,
evidence, andtheintegrity of pretrial investigative reports.The administrator, and certainotherofficials,oftheDEA
have been authorized to designate information as "DEA SENSITIVE". The Department ofDefense has agreed to
implement protective measures forthe following DEA sensitive information in its possession.
^. Information and material that is investigative in nature.
^. Information and material to which access is restricted by law.
^. Information and material which is critical to the operation and mission of the DEA.
^. Information and material in which the disclosure of such would violate a privileged relationship.
5-12.l^arl^lng
^. Unclassified documents containing DEA sensitive information will be marked "DEA SENSITIVE," in letters
larger than the rest of the text,where practical,at the top and bottom of the front cover (if there is one), the title page
(if there is one), and the outside of the back cover (if there is one).
^. Inunclassifieddocuments,each page containing DEA sensitive information willbe marked "DEA SENSITIVE"
top andbottom.Classified documents containing DEA sensitiveinformationwillbe marked as required bychapter 4,
except that pages containingDEAsensitiveinformation,but no classifiedinformation, willbe marked "DEASENSITIVE" top and bottom.
^. Portions of DA documents which contain DEA sensitive information will be marked "(DEA)"at the beginning of
the portion.This applies to classified, as well as unclassified documents.Ifaportionofaclassified document contains
both classified and DEA sensitive information, the "DEA" marking will be included along with the parenthetical
classification marking. For example,adocument containing DEA sensitiveinformation along withSECRETinforma
tion will be marked "(S)(DEA)."
5-13. Access to Di^A sensitive Inforn^atlon
Access to DEA sensitive information will be granted only to persons who have a valid need to^know for the

AR 380-5 • 29 September 2000

59

23285

U S C 3 3 ) a n d c o m p o n e n t records management d i r e c t i v e s . N o n r e c o r d D O D U C N I documents c a n b e destroyedby
shredding or tearing into pieces and discarding the pieces in regular trash containers.
Section V
S e n s i t i v e I n f o r n ^ a t i o n ( C o n n p u t e r S e c u r l t y A c t o f 1987^
5-19. Description
^ The Computer Security Act of 1987 established requirements for protection o f certain information in federal
govemment Automated Information Systems (AIS). This information is referred to as "sensitive" information, defined
i n t h e Act a s : " A n y information,theloss,misuse,or unauthorized access to or modification o f which could adversely
affect the national i n t e r e s t o r t h e c o n d u c t o f f e d e r a l p r o g r a m s , o r t h e p r i v a c y to which individuals are entitledunder
section 552a o f Title 5, USC (the Privacy Act), but which has not been specifically authorized under criteria
established by an Executive Order or an Act o f Congress to be kept secret in the interest of national defense or foreign
policy."
^. Two aspects o f this definition deserve attention. First, the Computer Security Act of 1987 applies only to
unclassifiedinformation which deserves protection.Second,unlike most other programs for protection o f information,
the Computer Security Act o f 1987 is concemed with protecting the availability and integrity, as well as, the
confidentiality of information. M u c h o f t h e i n f o r m a t i o n w h i c h f i t s the Computer Security Act o f 1987^s definition o f
"sensitive" falls within the other categories of information discussed in this chapter.
5-20.l^arl^lng
There i s n o specificmarkingauthorized for the designationof "sensitive" information. I f t h e informationfits within
one o f the other categories o f information described in this chapter, the appropriate marking requirements apply.

5-21. Accessto sensitive Inforn^atlon
Ifsensitiveinformationfalls
limitations on access f o r t h e
limitedonly t o t h o s e w i t h a
dictated by common sense
education program.

within one o f the other categoriesofinformationdescribed in thischapter.thespecific
appropriatecategory will be applied. I f it does not, access to the information w i l l be
v a l i d n e e d f o r s u c h a c c e s s i n o r d e r t o p e r f o r m a legitimate organizationalfunction,as
principles of security management, learned through a proper and thorough security

5-22. protection of sensitive Inforn^atlon
Information o n a D A A I S , w h i c h is determined to be "sensitive,"within the meaning o f the Computer SecurityAct o f
1987, w i l l be provided protection which is:
^. Determined after thorough consideration of the value and sensitivity o f the information and the probable adverse
impact o f loss o f its availability, integrity or confidentiality
^ In compliance with applicable DA policy and requirements for security o f information within automated systems.
^. Commensurate with the degree o f protection required for the category of information described in this chapter to
which it belongs ( i f any).
^. Based on sound application o f risk management techniques and procedures.

5^23. f^urtl^er guidance
Further guidance is found in a p p e n d i x E o f this regulation, AR 380 19, D O D D 5200.28, and other related publications.
5 - 2 4 . Tecf^nlcal d o c u n n e n t s
D O D D 5230.24 and A R 7 0 11 require distribution statements to be placed on technical documents no matter i f they
are classified or unclassified (See figure 5 1). These statements facilitatecontrol, distribution and release ofthese
documents without the needtorepeatedly referquestions t o t h e o r i g i n a t i n g a c t i v i t y . The o r i g i n a t i n g o f f i c e c a n , o f
course, make case b y ^ a s e exceptions to distribution limitations imposed by the statements.

AR 380-5 • 29 September 2000

61

23286

Distribution Statements for Technical Documents
Distribution Statement A
Approved for public release; distribution is unlimited.
Distribution Statement B
Distribution authorized to U.S. Government
Agencies only; [reason]; [date].
Other requests for this document will be referred to
[controlling DOD office].
Distribution Statement C
Distribution authorized to U.S. Government Agencies
and their contractors; [reason]; [date].
Other requests for this document will be referred to
[controlling DOD office].
Distribution Statement D
Distribution authorized to the DoD and U.S. DoD
contractors only; [reason]; [date].
Other requests for this document will be referred to
The[controlling DOD office].
Distribution Statement E
Distribution authorized to DoD Components only;
[reason]; [date]
Other requests for this document will be referred to
The[controlling DOD office].
Distribution Statement F
Further distribution only as directed by [controlling
DOD office] or higher DoD authority; [date]
Distribution Statement X
Distribution authorized to U.S. Government Agencies
and private individuals or enterprises eligible to obtain
export-controlled technical data in accordance with
DoD Directive 5230.24; [date].
Controlling DoD office is [controlling DOD office].

Figure 5-1. Distribution Statements for Technical Documents

62

AR 380-5 • 29 September 2000

23287

Personnel Office (CPQ), to be filed in the individuafs Official Personnel File (QPF).Thefonn will be filed on the
permanent side ofthe OPF as an adjunct to the DA Form 873.NDAs for civilian employees transferring from one duty
station to another, to include transferring to another U.S.Govemment agency,will transfer as part of their OPF.The
N D A w i l l not be removed from the OPF.Ifacommand receives an NDA executed byacurrent employee while that
employee was assigned to another command or agency, the command official receiving the form will forward the NDA
to the applicable local or regional supporting CPO for insertion into the OPF as an adjunct to the DA Form 873. When
acivilian employee transfers from one duty station to another, the designated command civilian personnel official will
ensure that the Standard Form75 (Request for Preliminary Employment Data) verifies thatacompleted NDA is on
file.These forms, that are maintained in the individuafsofficial personnel folder,will apply the disposition instructions
forthe official personnel folder.
^. ^^7^7^^^^^^.^^^^^^ For military personnel,acopy o f t h e N D A will b e k e p t o n f i l e b y the command security
manager,or other designated command official,for verification that theindividual has executed theNDA.Copies of
nondisclosure agreements,suchasSF3I2orSF 189orsimilarforms,signedby military personnel, with accessto
information that is classified under standards put forth by Executive Orders goveming security classification, should be
maintained separately from personnel security clearancefiles. Thiscopy will remain in thecommand file until the
individual transfers or is separated from the U.S. Army. Upon the soldier^s arrival at the new duty station, the
command security manager will maintainacopy of the original,newly signed NDAon file pending the next transfer.
Theacceptingofficial will forwardtheoriginalNDAtotheaddressbelow, whereitwill beconvertedtomicrofiche
and filed with the soldier^s official records. Upon notification of transfer, the command security manager, or other
designated command official,will send the copy ofthe NDA to the gaining organization's command security manager
either by mail or in the possession of the transferring individual.
(1) Active Army Commissioned and Warrant Officers: Commander,U.S.Total Army Personnel Command,ATTN:
TAPCMSRAlexandria,VA 22332 0400.
(2) Active Army Enlisted Personnel: Commander, U.S. Army Enlisted Records and Evaluation Center, ATTN:
PCREFS,8899 East5^th Street, Fort Benjamin Harrison, IN 4^249 5301
(3) Reservists: Commander,US.Anny Reserve Personnel Center,ATTN:DARPPRDMP,9700 PageAvenue, St.
Louis, MO ^3132 5200.Whenacleared Individual Ready Reserve (IRR) member is ordered to active duty for training
that willinvolve access to classifiedinformation and previous execution of theNDAcannot be verified,an NDA will
be completed at the training site and the original forwarded tothe U.S. Army Reserve Personnel Center.
(4) National Guard Commissioned and Warrant Officers: Army National Guard Personnel Division, ATTN:
NGB A R D C , 111 SouthGeorgeMasonDrive, Arlington, VA 22204 1382
(5) For National Guard enlisted soldiers: Forward to the soldier^s State Adjutant General, ATTN: POMSO.
^ Departmentofthe Army Consultants and Other Non U.S.Govemment PersonneL IfaconsuItanttotheDepart
mentof the Army ishiredunder Civil Serviceprocedures,asopposedto contracting withacompany for consultant
services, theNDA will be executed and filed with the DA Form 873. Ifthe consultant's OPF is not retired, the
commandis obligated toretaintheNDAfor the required 50 year retentionperiod.Consultant NDAs cannotbeused
by or transferred to another activity.They only authorize access to classified informationunderaspecific agreement
and an access termination form must be executed when the agreement has ceased or when classified access is no longer
required, whichever occurs first. In special situations where non U.S. Govemment uncleared personnel have been
granted classified access to specific information in accordance with the policy established in AR 380^7,the N D A w i l l
be attached totheexceptiontopolicy memorandum orother appropriate writtenauthorizationwhichauthorizedthe
individuafs access to classified information and will be retained in the commandos files for 50 years.

6-4. Refusal to execute tf^e^OA
Ifaperson refuses to sign the NDA, the individual will be advised of the applicable portions of the NDA,SF3I2.The
individual will begivenfivecalendardaystoreconsider and will not bepermittedaccessto classified information
duringthattime. At the end of the five day period, the individual will again be requested to sign the NDA. If at that
point the individual stillrefusestosigntheNDA,theirclassifiedaccess, ifithadbeenpreviously granted, will be
formally suspended,theindividual willnot be permitted any access to classifiedinformation,theDepartment of the
Army^s Central Clearance Facility will be notified conceming clearance revocation or denial action, and the matter will
be reported as required by AR 380^7.

6-5. Debriefing and tern^lnatlon ofclassified access
^ Classifiedinformation is not the personalpossession of any DApersonnel,regardless of rank, title.or position.
Classifiedinformation willnotbe removed tononofficialorunapprovedlocations,suchaspersonalresidences,upon
the termination of employment or military service of any person, including the custodian ofthat material.
^ All DA personnel who are retiring, resigning, being discharged, or will no longer have access to classified
information, will out processthrough thecommand security manager^sofficeorotherdesignatedcommand office.
During this out processing the individual will be informed that security clearance and access to classified information
has terminated and that the individual still has an obligation to protect any knowledge they have of classified
information.DA personnel will signadebriefing statement during out processing.The debriefing statement will either

64

AR 380-5 • 29 September 2000

23288

be the NDA Security Debriefing Acknowledgement section of the SF312, or DA Fomi 29^2 (SecurityTennination
Statement). Thedebriefing,asaminimum,willconsistof informing theindividual ofthecontinuingobligationto
protect classified information accessed, the admonition that discussion or other revelation of classified information to
unauthorized persons is prohibited, provide instructions for reporting any unauthorized attempt to gain access to
classifiedinformation, advise theindividualof the prohibition against retainingclassified material when leaving the
command, and remind the individual ofthe potential civil and criminal penalties for failure to fulfill these continuing
responsibilities. Thesameprocedures will befollowedfor DApersonnel stillemployedandstill in service whose
security clearance hasbeen withdrawn,denied (after interim access was granted),or revoked either for cause or for
administrative reasons due to lack of need for future access to classified information.In these cases both civilian and
military DA personnel will execute the debriefing statement.
^. Unless exempted by the senior security official at the MACOM, security out processing is required for all cleared
personnel transferring to another DA command or t o a Federal Govemment agency. Transfers will not require the
execution of the type of debriefing statement described in subparagraph b,above.This does not preclude the command
from requesting the transferring individual sign or initial a form or statement indicating, in substance, that the
individual has been advised ofthe continuing responsibility to protect classified information and^or has completed the
securityout processing. Personnel transferring willbe briefed on the responsibilities stated in subparagraphb, above.
Additionally, personnel transferring will be advised that classified information previously created, or in the custody of,
the individual, including that gained while attending training or conferences, does not belong to the individual and does
not transfer tothegainingcommand without appropriateapproval by boththegainingand losingcommands. Such
approval will be based upon the losing command^sassessment of the need to^know for the information by the gaining
command.Out processingcan alsobe used asameans to ensure that the appropriate command security officials are
aware ofthe departure ofpersonnel to ensure combinations and passwords are changed,keys are retumed, accountable
documentsandpropertyareundernewcustody,etc. Where out processing is not required for transfers,the command
will establish procedures to ensure that the command security manager is advised of such transfers.
^. For allDA military personnel,retiring, resigning,or separating from military service.theDAForm 29^2,or the
termination portion of theNDA,will be executed and maintained on file by the command security manager, or other
designated command official, at the soldier^s last duty station, for a period of two years, in accordance with AR
25^002
^. All Army civilian personnel who are retiring or resigning fi^om govemment service, must out process through the
activity's security office. The security official will debrief the civilian employee about the continuing obligation to
protect the classifiedinformation accessed during govemment service.The civilian employee should signaDA Form
29^2ortheNDADebriefingAcknowledgement,which willbe retainedby the activity.Signing theNDADebriefing
Acknowledgement is the individuafsoptionupon final separationfromthe govemment service, however, theindividual willbe informed that security clearance and access to classified information has terminated and that theindividual
still hasalegalobligationtoprotect classified information.The original NDA,for civilianemployees,whoretireor
resignfi^om govemment service,willremainin the employee's OPFand will be retired as part of the OPF.TheNDA
(SF 189 or SF3I2) for civilian employees who retired or resigned prior to 1993 and are currently filedinaninactive
file willbe forwarded to:NationalPersonnelRecordsCenter,CivilianPersonnelRecords, 111 Winnebago Street, St.
Louis, MO ^3118
^ RefusaltosigntheDAForm29^2or the terminationportion of theNDA, S F 3 I 2 , w i l l b e consideredalackof
personal commitment to protect classified information.Personnel who refuse to signatermination statement will not be
grantedfurther accessto classified information and their security clearance may berevokedor denied inaccordance
with AR 380^7

6-6. Con^n^unication and cooperation ^etv^een connnnand officials
Commanders will establish policy and procedures to ensure that other command officials and personnel advise the
command security manager of any information affectingan individuafs access to classified information. Personnel
officials will make sure that transfer and recruitment documents, including vacancy announcements, indicate if a
security clearance is required for the position.

6^7. Access to restricted data, forn^erly restricted data, and critical nuclear weapons design
Inforn^ation
^. Access to RD (less CNWDI) and FRD byDA personnel,at Army facilities.will be under the same conditions as
for all other classified information, based on the appropriate security clearance and access, need to^know forthe
information, and inaccordance with DODD 5210.2. Seeparagraph ^ 1 7 fortherequirementfor DA certification to
access classified information, including RD and FRD, held by Department of Energy (DOE) personnel and for
classified visits to DOE certified facilities. Because ofthe sensitivity ofnuclear information, the need to^know criteria
will be strictly enforced for all access to RD and FRD information.
^ Critical Nuclear Weapons Design Infomiation (CNWDI) isacategory of SECRETand TOP SECRETrestricted
data. Access to and dissemination of CNWDI isofparticularconcemtonationalsecurity. Access to CNWDI willbe
limited to U.S. citizens with final TOP SECRET or SECRET, as appropriate to the information being accessed.

AR 380-5 • 29 September 2000

65

23289

When effectively implemented the EEIP provides visibility and emphasis to the command security program.Its use i s a
command o p t i o n . T h e T w o Person Integrity (TPI) Program is, effective by this regulation, no longeraDepartment o f
the Army wide requirement. Personnel are reminded that the unauthorized disclosure o f T O P SECRET information can
result in exceptionally grave damage to national s e c u r i t y . T P I i s a t o o l that can be used to better protect this high level
o f classificationand shouldbeconsidered for inclusion incommandsecurity programs. Itsuse i s a l s o a c o m m a n d
o p t i o n . T w o persons are required, however, for the destruction o f T O P S E C R E T m a t e r i a l as stated in paragraphs 29,
and may be required for SAPs (see A R 380 381).

Ohapt^r^
^ t o r a ^ ^ a t ^ d ^h^8lcal ^ ^ c u r l t ^ ^ t a n d a r d 8
Section f
General

7 1. policy
Classified information w i l l be secured under conditions adequate to prevent access by unauthorized persons and
meeting the minimum standards specified in this regulation.An assessment o f t h e threat to the material,the location o f
the command, and the sensitivity o f t h e information,will be considered when determining i f t h e minimum requirements
o f t h i s Chapter require enhancement, as determined by the local command.Based upon an assessment o f t h e threat, the
command w i l l institute appropriate security measures designed to make unauthorized access so difficult that an intmder
w i l l hesitate to attempt to try to gain access or enhance the likelihood ofdiscovery and apprehension i f an unauthorized
access is attempted.

7-2. ^f^yslcal security policy
^ Physicalsecurity i s i n t e n d e d t o be built u p o n a s y s t e m o f d e f e n s e . o r security in depth,toprovide accumulated
delay time. AR 190 13,AR 190 1^, and Field Manual (FM) 19 30, provide additional information on the principals o f
physical security. For technical assistance conceming classified material physical security storage standards, commands
cancontactthe Army Intelligence Materiel Activity (IMA),lntelligenceMaterielManagement Center, Fort George G.
Meade, M D 20755 5315
^ AR 190 13prescribesminimumuniform standards and procedures in the use of security identification cards and
badges to control personnel movement into, and movement within, restricted areas. These standards and procedures are
established to safeguard facilities against espionage, sabotage, damage, and theft. Security identification cards and
badgesmay be used t o c o n t r o l accessto installationsandactivities. They w i l l b e u s e d i n additionto other required
identification c a r d s t o m i l i t a r y personnel,civilian D O D a n d contractor employees,and visitors enteringinstallations,
activities, or restricted areas, as determined by the commander concemed.

Section II
StorageStandards
7-3. Standardsforstorageegulpn^ent
General Services Administration (GSA) establishes and publishes minimum standards, specifications, and supply
schedulesfor containers, vault doors,modularvaults,a1arm systems, and associated security devicessuitablefor the
storage and protection o f classified information.

7 ^ . Storage Of classified Inforn^ation
^ C l a s s i f i e d i n f o r m a t i o n t h a t i s n o t under thepersonal c o n t r o l a n d o b s e r v a t i o n o f a n a u t h o r i z e d p e r s o n , i s t o b e
guardedor stored in a lockedsecurity container, vault, r o o m , o r a r e a , pursuant to the level ofclassification andthis
regulation by one or more o f the following methods:
( l ) T O P S E C R E T i n f o r m a t i o n will b e s t o r e d a s identifiedbelow:
A GSA approved security container with one o f t h e following supplemental controls:
^ The location that houses the security container w i l l be subject to continuous protection by cleared guard or duty
personneL
2 C l e a r e d g u a r d o r d u t y personnel w i l l inspect the securitycontainer once every two hours,but not i n a w a y that
indicates a pattem.
^. An Intrusion DetectionSystem(IDS),meeting therequirements of s e c t i o n l l l o f t h i s C h a p t e r , withpersonnel
responding to the alarm, arriving within 15 minutes o f the alarm annunciation.
^. Security in depth when the GSA approved container is equipped with a lock meeting Federal Specification
FF-L-2740A. See appendix J for a definition o f security i n ^ e p t h .
A v a u l t , modular vault, or security room constructed in accordance with section 111 of this Chapter, and equipped

78

AR 380-5 ^ 2 9 September 2000

23290

with a n I D S w i t h t h e personnelresponding t o t h e a l a r m w i t h i n 15 minutes of the alarmannunciationif the areais
coveredby security in d e p t h , o r a 5 minute alarm response time i f it isnot. Other r o o m s t h a t w e r e a p p r o v e d u n d e r
former policy f o r t h e storage of TOP SECRET in the U.S. can continue to be used.
N e w p u r c h a s e s o f c o m b i n a t i o n l o c k s f o r G S A approved security containers, vault doors and secure rooms w i l l
conform to Federal Specification FF L 2740A. Existing, non FF L 2740A mechanical combination locks will not be
repaired.If they should fail,they w i l l be replaced with locks meeting F F L 2740A.See section I V f o r information on
retrofitting locks (replacing locks with those meeting Federal Specification F F L 2 7 4 0 A ) o n existing containers where
the lock is not in need o f repair.
Under field conditions, during military operations, commanders can prescribe the measures deemed adequate to
meet the storage standard contained in subparagraphs 1 and 2 above.
(2) SECRET information w i l l be stored—
In the same manner as prescribed for TOP SECRET.
In a GSA approved security container or vault without supplemental controls.
f n s e c u r e r o o m s that w e r e a p p r o v e d f o r t h e s t o r a g e o f S E C R E T o r C O N F I D E N T I A L information by t h e 2 8
February 1988 edition o f t h i s regulation, provided thatthe approval for storage occurred prior to 1 October 1995.
Until I October 2002, in a non GSA approved container having a built in combination lock, or in a non
^ S A approved container secured w i t h a r i g i d metal lock bar a n d a G S A approved padlock with one or more o f the
following supplemental controls.
^. The location that houses thecontainer is subjecttocontinuous protection by cleared guard o r d u t y personneL
^. C l e a r e d g u a r d o r d u t y personnel w i l l inspectthesecurity container once every four hours,using random times.
An IDS with the personnel responding to the alarm arriving within 30 minutes o f t h e alarm.In order to reduce the
r i s k o f t h e l o c k b e i n g s w a p p e d w h i l e t h e container is o p e n e d , t h e p a d l o c k w i l l b e s e c u r e d t o t h e h a s p i n t h e locked
position, or the padlock w i l l be locked and placed inside the cabinet. Commands are encouraged to replace the
non GSA approved cabinets with GSA approved security containers as soon as feasible, prior to the mandatory
replacement date o f 1 October 2002. New lock bar cabinets w i l l not be fabricated from either existing or new
containers, nor will any existing lock bar container, that was not previously used for the protection o f classified
information, be put into use for that purpose.
(3) C O N F I D E N T I A L information will be stored in the same manner as prescribed f o r T O P SECRETand SECRET
information except that supplementalcontrols are not required. Wherelock bar cabinets are used.in order to reduce
the r i s k o f t h e l o c k b e i n g swapped while the container is o p e n , t h e p a d l o c k w i l l b e secured to the h a s p i n t h e l o c k e d
position, or the padlock w i l l be locked and placed inside the cabinet. Commands are encouraged to replace the
non GSA approved cabinets with GSA approved security containers as soon as feasible prior to the mandatory
replacement date o f 1 October 2002. New lock bar cabinets w i l l not be fabricated from either existing or new
containers, nor w i l l any existing lock bar container, that was not previously used f o r t h e protection of classified
information, be put into use for that purpose.
^. .^^^^^^^^^^^ .^^^^^^^^7^
(1) GSA approved field safes and special purpose, one and two drawer, light weight, security containers, approved
by the GSA, are used primarily for storage of classified information in the field and in military platforms, and will be
usedonly for those or similar purposes. Such containers w i l l b e securely fastened to the structure or under sufficient
surveillance to prevent their theft or compromise.
(2) GSA approved map a n d p l a n f i l e s are available for storage o f o d d s i z e d i t e m s such as computer media,maps,
charts, and classified equipment.
(3) GSA approved modular vaults, meeting Federal Specification A A V 2737, can be used to store classified
information as an altemative to vault requirements described in section III o f t h i s Chapter.
^. ^^^^^^^^^^^ ^ ^^^^^^^^^^^^ ^ ^ ^ ^ The mission and location of the command, the classification level and
sensitivity o f t h e information, a n d t h e o v e r a l l security p o s t u r e o f t h e a c t i v i t y , are factors used in determining the
priority f:^rreplacementofexistingcombination locks. A l l system componentsandsupplemental security measures,
including electronic security systems(e.g.,intrusion detection systems, automated entry control subsystems, and video
assessment subsystems), and level o f operations, must be evaluated by the command when determining the priority for
replacement o f security equipment. Section I V o f this Chapter providesamatrixillustratingaprioritization scheme for
the replacement o f existing combination locks on GSA approved security containers and vault doors, and can be used
as a guide f o r t h i s purpose. The prioritization scheme can be tailored to specific environments and sensitivity o f
information stored. Priority 1 requires immediate replacement. Replacement is generally considered to be accomplished
when the equipment is obtained and installed within the fi^amework o f t h e command budget constraints, but in no event
w i l l exceed two years from the effective date of this regulation.
^. .^^^^^^^^^^^.^.Storage areas, for bulky material containing SECRETor C O N F I D E N T I A L information, can have
access openings secured by GSA approved, changeable, combination padlocks (Federal Specification F F P I I O s e r i e s )
or high security,key^perated padlocks (Military Specification M I L P ^ 3 ^ 0 7 ) . O t h e r security measures are required,
in accordance with p a r a g r a p h 7 ^ a ( l ) , above, f o r T O P SECRETmaterial, and are strongly recommended for all other
levels o f classified materiaL

AR 380-5 • 29 September 2000

79

23291

(1) Commands will establish administrative procedures for the control and accountability of keys and locks whenever key operated, high security padlocks are utilized.The level of protection provided such keys will be equivalent to
that afforded the classified information being protected by the padlock. Asaminimum,the following procedures will
be implemented.
(^^ Akey and lock custodian will be appointed in writing to ensure proper custody and handling of keys and locks.
Akey and lock control register will be maintained to identify keys for each lock and their current location and
custody.
Keys and locks will be audited at least quarterly.
Keys will be inventoried with each change of custodian. Keys will not be removed from the premises.
(^^^ Keys and spare locks will be protected in a security container or other secure container;
(^ In order to reduce the risk of the padlock being swapped while the container is opened, the padlock and the key
will be either placed in the security container, or the padlock will be locked to the hasp and the key either personally
retained, retained at a central location, or placed inside the unlocked container.
( ^ Since there isalesser degree of risk of compromise with key operated locks, they will be changed or rotated ata
minimum of once every two years, and will be immediately replaced upon loss or compromise of their keys.
(2) Section 138^ofTitle 18,UnitedStatesCode,makesunauthorizedpossessionofkeys,key blanks, key ways or
locks adopted by any part of the Department of Defense for use in the protection of conventional arms, ammunition, or
explosives, special weapons, and classified equipment,acriminal offense punishable by fine or imprisonment for up to
10 years, or both.

7-5. Rrocuren^entof ^ewStorage ^^ulpnnent
^. Newsecurity storage equipment willbe procured fromthoseitemslisted on the GSAFederalSupply Schedule.
Exceptions can be made by the MACOM commander.will be fi^lly justified,and will be reported to DAMI CH,who
must notify the Office ofthe Secretary ofDefense (ASD(C31)) ofthe details of the exception.
^. As stated in paragraph 7^a(3) above, new lock bar containers used to store classified material will not be
fabricated from either existingor new cabinets, and existing lock barcontainers will bephased out and no longer
authorized for use af^er 1 October 2002.
^ Nothing in this Chapter will be construed to modify existing federal supply class management assignments made
under DODD 5030 47

7-6. Resldentialstorage
Classified information will not be stored inapersonal residence, on or offamilitary installation.Classified information
will not bestored in any location outside anapproved locationataU.S. Govemmentorclearedcontractor facility.
Exceptions are:
^ In extreme and exceptional situations.aMACOM commander, or the Administrative Assistant to the Secretary of
the Army for HQDA activities, can approve the temporary storage of SECRETand CONFIDENTIAL material only, in
apersonal residence,eitheronoroff amilitary installation,or inanotherlocationthatisnotaU.S. Govemmentor
cleared contractor facility.This authority will not be further delegated.Avalidated operational requirement must exist
for consideration of such requests and requests will not be approvedforpersonalconvenience.Authorizationfor such
temporary storagemust be in writingand will include writtenproceduresfortheprotectionof the information. The
material will be stored inaGSA approved security container and protected with an intrusion detection (alarm)system
(IDS). Other methods of supplemental control can be used in place of an IDS, where the other methods provide
substantially thesameassurance of protection. Physical security standards, beyond therequirement for storage i n a
GSA approved security container protected with an IDS, will be determined by the approving officiaL
^. The Secretaryof the Army is the only DAofficial that can authorize the removal of TOP SECRET information
and^or materialfromdesignated work areasfor temporary storage outsideagovemment or cleared contractor facility,
to include the storage at a personal residence on a govemment facility. MACOM commanders can authorize the
removal SECRET,and below, information and^or material from designated work areas for temporary storage outsidea
govemment or cleared contractor facility, to include the storage at apersonal residence on a govemment facility.
Where such approval isgranted,totemporarily store classifiedinformation and^ormaterialoutsideadesignated work
areaatagovemmentorc1earedcontractorfaci1ity,aGSAapprovedsecurity container willbefumishedfor storage.
The container will be protected by an (IDS) as prescribed in section 111 of this Chapter, and written procedures
addressing the appropriate protection of the information willbe provided to the holder of the material.Other methods
of supplemental control can be used in place of an IDS where the other methods provide the same assurance of
protection. Asaminimum,the writtenprocedures conceming the storage of any levelofclassifiedinformation, will
require the material to be under personalcontroLof the authorizedindividual,at all times whenit is not securedina
GSA approved security container. Also included will be the identification and signature receipt of the material
temporarily stored, the reconciliation of the material upon its return, and the requirement that the material be retumed
as soon as possible after the operational requirement has ended. All authorizations, irrespective of classification level of
material involved, will specify a specific expiration date.

80

AR 380-5 • 29 September 2000

23292

Ohapt^r^
^f^an8ml88i^t^ artd^ran^portatl^n
Section I
l^etf^ods of Transn^lsslonand Transportation
8^1.l^ollcy
Classified information will be transmitted and transported only as specified in this Chapter. COMSEC information will
be transmitted in accordance with AR 380^0. Special Access Programs material will be transmitted and transported in
accordance with appendix lofthisregulation, AR 380 381,and applicable SAPsprocedure guides.Commands will
establish local procedures to meet the minimum requirements to minimize risk of compromise while permitting use of
the most effective transmission or transportation means. Extemal,street side, collection boxes, for instance,U.S. Mail
boxes, will not be used for the dispatch of classified information. Commands will develop procedures to protect
incomingmail, bulk shipments, and items delivered by messenger, until adetermination is made whetherclassified
informationis contained therein.Screening points willbe established tolimit access of classified information to only
cleared personneL
82.TO^S^CRI5Tlnforn^atlon
TOP SECRET information will be transmitted only by:
^ A cryptographic system authorized by the Director, NSA, or a protected distribution system designed and
installed to meet approved NSA standards. This applies to voice, data, message, and facsimile transmissions.
^TheDefense Courier Service (DCS) (seeDODD 5200.33 R).
^. Authorized command courier or messenger services.
^. The Department ofState Diplomatic Courier Service.
^ ClearedU.S.military personnel andU.S.Govemment civilian employees,traveling by surface transportation,or
traveling on a conveyance owned, controlled, or chartered by the U.S. Govemment or DOD contractors.
^ Cleared U.S. military personnel and U.S. Govemment civilian employees on scheduled commercial passenger
aircraft.
^. Cleared DOD contractor employees within andbetweentheUnitedStatesandits territories, when the transmission has been authorized,in writing, by the appropriate Cognizant SecurityAgency(CSA),oradesignatedrepresentative. For DA contractors, the CSA is generally the Defense Security Service (DSS).

8 3.S^CR^TInforn^atlon
SECRET information can be transmitted by:
^. Any of the means approved for the transmission of TOP SECRET information.
^ U.S. Postal Service registered mail, within and between the 50 States, the District of Columbia, and the
Commonwealth of Puerto Rico.
^. U.S. Postal Service express mail, within and between the 50 States, the District of Columbia, and the Common
wealth of Puerto Rico.The "Waiver of Signature and Indemnity" block on the U.S.Postal Service express mail label
11 B,willnot be executedunderanycircumstances.The use of extemal,street side, express mail collectionboxesis
prohibited.
^. U.S. Postal Service registered mail, through Army, Navy, or Air Force Postal Service facilities, for instance,
APO^FPO, outside the United States and its territories, so that the information does not, at any time, pass ot^tofU.S.
citizen control, and does not pass through a foreign postal system or any foreign inspection.
^ United States Postal Service and Canadian registered mail, with registered mail receipt between U.S. Govemment
and Canadian Govemment installations in the U.S. and Canada.
^ As an exception,inurgentsittiations requiring next daydelivery,an ovemight or next^aydeliveryservice,that
isacurrent holder ofaGSAcontract for ovemight delivery of materialfortheExecutiveBranch,provided that the
delivery service is U.S. owned and operated and provides automated in transit tracking of the material. These
companies are not required to be cleared and generally are to be considered uncleared.Their employees are not cleared
and are not required to be U.S. citizens, and the companies are not required to meet the storage requirements contained
in this regulation. Forthe purpose of this section of the regulation, an urgent situation exists when the classified
material mustbe received by thenext day,there isnootherauthorized means tomakethedelivery, excluding the

90

AR 380-5 ^29 September 2000

23293

handcarrying by authorized personnel, the delivery company assures delivery by the required date, and the transmission
complies with the provision ofTitle 39, U.S.Code (USC), section 320.^, Postal Services, as amended.The sender will
comply with the requirement contained in paragraph8 10, to address the package to the command or activity,and not
address i t t o a n individuaL Sincedelivery services usually require the buildingnumber and nameof recipient, the
sender will contact the recipient to ensure that an authorized and appropriately cleared person will be available to sign
for the material, and they will verify the authorized address to make sure that it is displayed correctly on the package
labeL Unless it is notpossible, forexample, if thematerial is needed on a weekend andthe mailroom is not in
operation then, the package label will be addressedtoa supporting mailroom. The release signature block on the
receipt label will not be executed under any circumstances. Executing the release signature block, ensures that
someone, but not necessarily the addressee, ifthe addressee is unavailable when the package is delivered, signs for the
package. These precautions are required because uncleared, commercial ovemightdelivery services can deliver the
package directly to the person named,and building identified,on thelabel,or to whomever signs for the material, if
the addresseeisunavailable whenthe material is delivered. U.S. PostalServicemail isdeliveredorpicked upby a
centralizedcommandmailroom where personnel who open mail are cleared and the material isproperly safeguarded
until opened. The use ofexternal, street side, commercial delivery service collection boxes is prohibited. Note: In many
situations, the United States Postal Service express mail can meet the next day delivery standards and should be used,
as noted in subparagraph c, above.
^ CarriersauthorizedtotransportSECRETinformationby way ofaProtectiveSecurity Service (PSS)under the
National Industrial Security Program (NISP).This method is authorized only within the United States boundaries when
other methods are impractical.
^ Appropriately cleared contractor employees, provided that the transmission meets the requirements specified in
DODD 522022 Rand DODD 5220 22 M(NISPOM)
^. U.S. Govemment and U.S. Govemment contract vehicles, including aircraft, ships of the U.S. Navy, civil
service^perated U.S. Navy ships, and ships of United States registry. Appropriately cleared operators of vehicles,
officers of ships, or pilots of aircraft,whoareU.S.citizens, may be designated as escorts, provided the control of the
carrier is maintained ona24 hour basis.The escort will protect the shipment at all times, through personal observation
or authorized storage, to prevent inspection,tampering, pilferage,or unauthorized access.Observation of the shipment
is not required duringflight or seatransit, provided it is loaded intoacompartmentthat is not accessible, to any
unauthorized persons, or inaspecialized secure, safe like container.The escort will, if possible, observe the loading of
the shipment.

8-^.COf^^lO^^TIAI^Inforn^atlon
CONFIDENTIAL information may be transmitted by:
^. Means approved for the transmission of SECRET information.However.U.S.Postal Service registered mail will
be used for CONFIDENTIAL material only as indicated below:
(1) NATOCONFIDENTIALinformation I f N A T O CONFIDENTIAL material is sent betweenUS Govemment
activities.within the ContinentalUnited States, its territories, and the District of Columbia, it can be sent by first class
maiLThecaveat,"POSTMASTER:RETURNSERVICEREQUESTED" w i l l b e affixed to the outer wrapper.
(2) Other CONFIDENTIALmaterial senttoand from FPOor APOaddressees, locatedoutsidethe U.S. and its
territories.
(3) Other CONFIDENTIALmaterial when the originator isuncertainthattheaddressee^s location is within U.S.
boundaries or knows the addressee^s location is outside U.S. boundaries.
^ United StatesPostalService certified mail (or registered mail,if required above) for material addressed toDOD
contractors or non DOD agencies.
^ United States Postal Service first class mail between DOD component locations anywhere in the U.S., its
territories, and the District of Columbia.The use of extemal,street side, postal collection mailboxes is prohibited.The
outer envelope or wrappers will be endorsed, wherepossible, in letters largerthan thetexton the address ofthe
envelope: "POSTMASTER: RETURN SERVICE REQUESTED"
^. Within United States boundaries, commercial carriers that provide a Constant Surveillance Service (CSS).
^ In the custody of commanders or masters of ships of United States registry, who are United States citizens.
CONFIDENTIAL information shipped on ships of U.S. registry, cannot pass out of United States controL The
commanders or masters must sign a receipt forthe material and agree to:
(1) Deny access tothe CONFIDENTIALmaterialby unauthorized persons,includingcustomsinspectors,withthe
understanding that CONFIDENTIAL cargo, that would be subject to customs inspection, will not be unloaded.
(2) Maintain control ofthe cargo until areceipt is obtained from an authorized representative ofthe consignee.

AR 380-5 • 29 September 2000

91

23294

transmittal letteror form, this canbeaccomplishedby insertinganopaquesheetorcardboard sheeton t o p o f t h e
classified text in the inner envelope.
8-10. Addressing
^. The outer envelope or container for classified material will be addressed to an official govemment activity or toa
DOD contractor withafacility clearance and appropriate storage capability.It will show the complete retum address of
the sender. Theouter envelope will not beaddressed to an individuaL Officecodesor phrases such as "Attention:
Research Department" may be used.
^ Theinnerenvelopeorcontainerwill showtheaddressofthereceivingactivity, theaddressofthesender,the
highest classification ofthe contents, including, where appropriate, any special markings such as "RESTRICTED
DATA" or "NATO," and any other special instructions. The inner envelope may have an "attention line" with a
person^s name.
^. The outer envelope or single container will not bear aclassification marking or any other unusualmarksthat
might invite special attention to the fact that the contents are classified.
^. Classified information intended only for U.S. elements of intemational staffs or other organizations, must be
addressed specifically to those elements.
8 - 1 1 . I^all cf^annels wltf^ tf^e Departnnent of energy
Other federalgovemment agencies can require special certification or special procedures before forwarding classified
information to another agency. Where that is thecase, DA commands will comply with the requirements ofthose
agencies. Specifically, the Department of Energy (DOE) requires that a"mail channel" be established prior to the
transmission ofcertainclassifiedinformation fi^om aDOEfacilitytoanother activity. Themailchannel,or material
channel for transmission of material other than mail,will be certified byadesignated DA certification official,will be
made on DOE Form 5^31.20 and will include the certified classified mailing address. The certification official will be
oneoftheofficials authorized to sign DOE Form 5^31.20. Seeparagraph ^ 1 7 , ofthis regulation, for policy on
personnel authorized to sign the DOE Form 5^3120.The DOE Fom^ 5^3120 replaced DOE Form DP 277 It is
recommended that the DOEfacility that holds the material be contacted for the proper address and information to be
completed on theform. Unlessnotifiedtothecontrary by the DOEfacility, themail or material channelmay not
exceed one year, subject to renewal of the form.

Section IV
^scortor f^andcarrylng of Classified l^aterlal
8-12. General provisions
^ Appropriately clearedpersonnelmaybeauthorizedtoescortorhandcarryclassifiedmaterialbetween locations
when other means oftransmission or transportation cannot be used.Handcarrying ofclassified material will be limited
tosituationsofabsolutenecessity and willbe carriedouttomakesureitdoesnot pose anunacceptablerisktothe
information.Generally.two way handcarrying, carrying the material both to and fi^om the destination, is not authorized
unless specificjustificationhasbeenprovided and both situationsinvolving the handcarrying meet therequirements
stated in this section. Handcarrying will be authorized only when:
(1) The information is notavailable atthe destination and is required by operational necessity o r a contractual
requirement.
(2) The information cannot be sent byasecure facsimile transmission or by other secure means,for example,U.S.
Postal Service express mail.
(3) The handcarry has been authorized by the appropriate official. For handcarrying within and between the United
States, its territories, and Canada, the authorizing official will be determined by the commander, subject to MACOM
approvaL For all other areas, approval is at the MACOM level and can be further delegated in writing by the MACOM.
Where delegated, the MACOM will exercise oversight, during inspections and^or assistance visits, by requiring copies
of approvals, or by other means, to ensure the requirements of this section are met.
(4) The handcarry is accomplished aboardaU.S.carrier, oraforeign carrier if no U.S.carrier is available, and the
information will remain in the custody and physical control ofthe U.S. escort at all times.
(5) Arrangements have been made for secure storage during ovemight stops and similar periods. The material will
not be kept in hotels, personal residences, vehicles, or any other unapproved storage location.
(^) Areceipt for the material, for all classification levels, is obtained from an appropriate official at the destination
and the receipt is retumed to the appropriate official atthe traveler's command.
^. Many ofthe principles contained in paragraph 8 14, ofthis regulation, apply to all situations involvingthe
handcarrying of classified information and are not restricted to those situations involving classified material handcar
ried outside the United States.Commands will consider the principles stated in paragraph8 13 in developing command

AR 380-5 • 29 September 2000

95

23295

procedures conceming the handcanying of classified material and incorporate those that are deemed applicable to the
handcarrying of classified material within the United States.
8-13. Docun^entatlon
^. Responsible officials will provideawritten statement to allindividuals escorting or carrying classified material
authorizing such transmission.
^. TheDDForm 250l (Courier Authorization Card) may be used toidentifyappropriatelyclearedDApersonnel
who have been approved to handcarry classified material in accordance with the following, except that in the case of
travel aboard commercial aircraft, the provisions of paragraph 8 15 ofthis regulation apply:
(1) The individual has a recurrent need to handcarry classified information;
(2) The form is signed by an appropriate official in the individual's servicing security office;
(3) Stocks ofthe form are controlled to preclude unauthorized use.
(4) The formis issued for no more than two years atatime.The requirement for authorization to handcarry willbe
reevaluated and^or revalidated on at least an biennial basis, and a new form issued, if appropriate.
(5) The use ofthe DD Form 2501 for identification and^or verification of authorization to handcarry Sensitive
Compartmented Informationor Special Access Programsinformation,willbein accordance withpolicies andprocedures, established by the official having security responsibility for such information or programs.

8-1^.Security re^ulren^entsforten^porary duty traveloutsldetf^e UnitedStates
^. As stated above, the handcarrying of classified information is notaroutine method of transmission and will only
be approved when fully justified. Handcarrying classified material outside the United States subjects the information to
increasedrisk. Whenclassifiedmaterial ishandcarried,for delivery toaforeigngovemmentrepresentative,or when
classifiedinformationis discussed with,or otherwise disclosed to.foreign national personnel,the requirements of AR
380 10 w i l l b e strictly followed.
^. TheDOD requires thatarequest for traveloutsidetheUnitedStatescontainawritten statement by the traveler
that classified information will or will not, as applicable, be disclosed during the trip. Ifthe foreign disclosure of
classifiedinformation isinvo1ved,therewil1be an additional writtenstatement that disclosure authorizationhasbeen
obtained in accordance with DODD 5230.11.For DAcommands,AR 380 lOapplies.The statement also will specify
whether authorization has been obtained to carry classified material, in compliance with the provisions of this
regulation.
^. If the traveler has been authorized to carry classified material,acopy of the written authorization will accompany
the justification for the temporary duty travel (TDY) This authorization, the courier orders, will be provided by the
traveler^sSpecialSecurityOfficer(SSO)orCommandSecurity Manager (CSM).They will be kept inasecure place
and will not be presented unless circumstances dictate.
^ Because of Operations Security (OPSEC) concems. Block l ^ o f D D F o r m l^10(Requestand Authorizationfor
TDYTravel of DOD Personnel) will not contain statements that identify the traveler as carrying classified information.
^ Travelers who are authorized to carry classified material on intemational flights, or by surface conveyance if
crossing intemationalborders, must have courier orders.TheDDForm 2501 isnotavalidformofcourierauthoriza
tion for travel overseas. A memorandum on command letterhead is required and will, as a minimum, provide the
information specified in subparagraph (11), below. Travelers will be informed of, and acknowledge, their security
responsibilities. The latter requirement may be satisfied by a briefing or by requiring the traveler to read written
instructions that, as a minimum, contain the information listed below.
(1) The traveler is liable and responsible forthe material being escorted.
(2) Throughout the journey, the classified material will stay in the personal possession of the traveler, except when
it is in authorized storage.
(3) The material will not beopened en routeexcept inthecircumstancesdescribed in subparagraph (9), below.
(4) The classified material is not to be discussed or disclosed in any public place.
(5) The classified material is not, under any circumstances, to be left unattended. During ovemight stops, U.S.
military facilities, embassies, orcleared contractor facilities will be used. Classified material will not bestored in
vehicles, hotel rooms or safes, personal residences, or any other unauthorized storage facility or location.
(^) The traveler will not deviate from the authorized travel schedule, unless such deviation is beyond the traveler's
control, such as cancellation of a flight. The traveler will immediately notify their command of any delays.
(7) lncasesofemergency,the traveler will takeappropriatemeasures toprotecttheclassified material, and will
notify their command as soon as possible.
(8) The traveler is responsible for ensuring that personal travel documentation, such as passport,courierauthorization, and medical documents, etc., are complete, valid, and current.
(9) There is no assurance of immunity from search by the customs, police, and^or immigration officials ofthe
various countries whose border the traveler may be crossing.Therefore, should such officialsinquire into the contents
of the consignment,the traveler willpresent the courier orders and ask to speak to the senior customs,police and^or
immigration official. This action should normally suffice to pass the material through unopened. However, if the senior

96

AR 380-5 • 29 September 2000

23296

UNITED STATES OF AMERICA
Government Motion
to Take Judicial Notice
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Enclosure 3
3 August 2012

23297

FUR OFFICIAL USE ONLY
Army Regulation 530-1

Operations and Signal Security

Operations
Security
(OPSEC)

Distribution Restriction Statement.
Ttiis publication contains technical or
operational information that is for official
Government use only. Distribution is limited
to U.S. Government agencies and their
contractors. Requests from outside U.S.
Government agencies for release of this
publication under the Freedom of Information
Act or the Foreign Military Sales Program
must be made to HQDA G-3/5/7 (DAMO-ODI),
3200 ARMY PENTAGON, WASHINGTON, DC
20310.
Destruction Notice.
Destroy by any method that will prevent
disclosure of contents or reconstruction of
the document.

Headquarters
Department of the Army
Washington, DC
19 April 2007

FOR OFFICIAL USE ONLY

23298

FOR OFFICIAL USE ONLY
^l^a^t^rl
Intrt^dt^ctlor^
purpose
This regulation prescribes policy andprocedures foroperations security (Of^^f^^) in the Army.

^^^^ References
l^equired and related publications and prescribed and referenced forms are listed in appendix A.

^-3, ^^planatlonof A^t^re^latlonsandSpeclalTerms
Abbreviations and special terms used in this regulation are explained in the glossary.

Responsibilities
l^esponsibilities are listed in chapter two. f^esponsibilities referring to commanders and similar terms are equally
applicable to equivalent management and supervision positions in organisations that do not employ a traditional
military command structure.

^^5. definitions
^ ^^^^^/^^^^.^ .^^^^^^/^ ^^^.^^^
(1) Asdefined in f^Of^ f^irective(f^OOf^) ^^0^.0^, Ol^^f^^ isaprocessof identifyingcritical informationand
subsequently analysing friendly actions attendant to military operations and other activities to^
Identify those actions that can be observed by adversary intelligence systems.
f^etermine indicators that hostile intelligence systems might obtain that could be interpreted or pieced together to
derive critical information in time to be useful to adversaries.
(^^ select and execute measures that eliminate or reduce to an acceptable level the vulnerabilities of friendly actions
to adversary exploitation.
(^) Operations security protects critical infonnation from adversary observation and collection in ways that tradi
tional security programs cannotB^hile these programs such as infont^ation security protect classified infonnation, they
cannot prevent all indicators of critical information, especially unclassified indicators, fi^om being revealed.
(^) In concise terms, the 01^5^^^ process identifies the critical information of military plans, operations, and
supporting activities and the indicators that can revealit, and then develops measures to eliminate, reduce,or conceal
those indicators.

^ ^^^//^^^ ^^^^^/^^^
(1) critical information isdefined as information important to the successful achievement of t^.^. ob^ectivesand
missions, or which may be of use to an adversary of the Ignited states.
(^) critical information consists of specific facts about friendly capabilities, activities, limitations (includes vulnerabilities), and intentions needed by adversaries for them to plan and act effectively so as to degrade friendly mission
accomplishment.
(^) ^riticalinformation is information that is vital toamission that if an adversary obtains it, correctly analyses it,
and acts upon it, the compromise of this information could prevent or seriously degrade mission success.
(^) t^ritical information can either be classified or unclassified, t^ritical information that is classified requires
Of^^^^ measuresforadditionalprotectionbecauseitcanberevealedby unclassified indicators, critical information
that isunclassifiedespecially requiresOl^^l^t^ measuresbecause it isnotprotected by therequirementsprovided to
classified information, critical information can also be an action that provides an indicator ofvalue to an adversary and
places a fi^iendly activity or operation at risk.
(^) The term ^^critical information^^ is in standard usage with OOO and other service components.
(^) f^ssential elements of f^riendly Information (^^f^l) are questions about critical information.
The^^l^larequestionsthattheadversary islikely to ask about friendly capabilities, activities,limitations, and
intentions (forexample, when does the operation begin or where is the operation going to occurs).
(^^^ The answers to ^^f^l are critical information.
The use of ^^f^l protects critical information because it does not reveal sensitive or classified details. Instead of
stating the details of critical information, ^^f^l is critical information converted into a question.
The use of ^f^f^l is an effective way to ensure the widest dissemination of a unit or organisation's critical
information while protecting classified and sensitive information.
(7) The t^ritical Information f^ist(^ll^)isaconsolidated list ofaunit or organi^ation^scriticalinformation.The^lf^
will be classified if any one of the items of criticalinformation is classified.Ataminimum,the (^lf.will be sensitive
informationandmust beprotected. A method toensurethewidestdisseminationofaunitororgani^ation^scritical
information while protecting it is to convert it to ^^f^l.

^. ^^^.^//^^^ ^^^^^^/^^^
AR 530^^^19 April 2007

FOR OFFICIAL USE ONLY

1

23299

^
FOR
OFFICIAL USE ONLY
(I) sensitive information (formerly known as sensitive but unclassified (^^1^) information) is information requiring
special protectionfromdisclosurethatcouldcausecompromiseorthreattoournationalsecurity,an Army organisation, activity, family member, department ofthe Army (f^A) civilian, or f^t^f^ contractor.
(^) sensitive information refers to unclassified information and is distinguished from sensitive compartmented
Information (^^1) which is classified information.
(^) 5^^amples of sensitive information include, but are not limited to^
(unclassified information that requiresspecial handling(for example, f^imited f^istribution, f^ncrypt l^orTrans
mission Only,and scientific and technical information protected under theTechnologyTransferf^aws and Arms l^^port
control Act)
controlled l^nclassified Information (t^l^l) is unclassified information to which access or distribution limitations
have been applied according to national laws, policies, and regulations of the Ignited states government (1^.^.
government). It includes (^.^.information that is determined to be exempt from public disclosure according to f^Of^O
^2^0.^^, f ^ O O f ^ ^ ^ 0 0 7 , A I ^ ^ ^ ^ ^ , A I ^ ^ ^ 0 2 1 , A l ^ ^30 1,and so on, or that is subject to export controls according
to the IntemationalTraffic in Arms l^egulations(ITAI^)or the ^^port Administration l^egulations(f^AI^).l3ecauset^l^l
does not qualify for formal classification,it should be afforded Ol^^f^^measures for additional protection because of
its vulnerability as unclassified information.
Information that must be protected under applicable laws such as the f^rivacy Act (^ee Af^ ^ ^ 0 ^ 1 ) .
f^reedom of Information Act (I^OIA) e^empt information specifies nine categories of information that can be
withheld from release if requested by the public (^ee Information l^^empt from l^elease lender the l^reedom of
Information Act, app f^, Al^
and Al^ ^ 8 0 ^ ) . The category of information that is especially vulnerable is
personal information(names, social security ^umbers,birth dates,and soforth.) I^istsof namesandaccompanying
sensitiveinformation of personnelassignedtoaunit,organi^ation,or officeinthef^epartment of the Army (f^A)are
prohibitedonthe^orld^ide^eb.f^iscretionary release of names and duty information of personnel whofrequently
interact with the public by nature oftheir positions and duties-such as general officers and senior executives, f^AOs, or
other personnel designated as official command spokespersons-is permitted.
/^^^ l^nclassifiedinformationdesignatedf^or Official t^se Only (I^Ot^O)isadesignationthat is applied tounclassified information that may be exempt from mandatory release to the public under the f^OIA. f^OI^O is not a
classification asf^OI^O informationis unclassified,but is not to be released to the public without undergoingaf^OIA
and/^or legal review. f^Of^O will bethestandard markingforall unclassified products that meetone or more of the
exemptions of f^OIA, and which if released to the public, could cause harm to Army operations or personnel, ^^amples
include but are not limited to^ force protection, movement and readiness data, tactics, techniques, and procedures
(TTI^s), proprietary information andinformationprotected by copyright,pre-decisionaldocuments,draft publications,
and information conceming security systems.
^. C^^^^^/^^^.^ .^^^^^^7^ ^^^.^^^^ ^o^^^^^^.^^
(1) An Ol^^f^^ compromise is the disclosure of critical information or sensitive information which has been
identified by the command and anyhigher headquarters that jeopardises the unites ability to e^ecuteits mission or to
adequately protect its personnel and^or equipment.
(2) critical or sensitive information that has been compromised and is available in open sources and the public
domain should not be highlighted or referenced publicly outside of intra-govemmental or authorised official communi
cations because these actions provide further unnecessary exposure of the compromised information.

Rec^ulrement
^. Thef^ational Operations security (01^^^^) f^rogram (l^ational security decision f^irective298)requireseach
executive department and agency with a national security mission to have an Of^^^^ program. OOOf^ ^20^.02
supports the national program and requires each OOO component to have an Of^^^^ program.
^ Operations security maintains essential secrecy,which is the condition achieved by the denial of criticalinformation to adversaries. Adversaries in possession ofcritical information can hinder or prevent friendly mission accomplish
ment. Thus, essential secrecy isanecessary prerequisite foreffectiveoperations. essential secrecy depends on the
combination and full implementation of two approaches to protections
(1) Traditional security programs to deny adversaries classified information.
(2) Operations security to deny adversaries critical information and indicators of sensitive information.
Operations security provides a methodology to manage risk. It is impossible to avoid all risk and protect
everything. To attempt complete protection diverts resources from actions needed for mission success.
^ - 7 , Application
^. Operations security awareness and execution is crucial to Army success. Ol^^^^ is applicable to all personnel and
all Army missions andsupportingactivitiesonadailybasis.Ol^^f^t^deniesadversariesinformationabout friendly
capabilities, activities, limitations, and intentions that adversaries need to makecompetent decisions, without prior
knowledge of friendly actions, adversary leaderscannotacteffectivelytopreventfriend1ymissionaccomplishment.lt

AR 530^1^19 April 2007

FOR OFFICIAL USE ONLY

23300

FOR OFFICIAL USE ONLY
a p p l i e s t o a l l Army activities and i s r e q u i r e d d u r i n g t r a i n i n g , s u s t a i n i n g , m o b i l i ^ i n g , p r e p a r i n g f o r , a n d c o n d u c t i n g
operations, exercises, tests, or activities.
(1) The Army Ol^^l^^ program is consistent w i t h ^ o i n t policy anddoctrine in Ohairman, .loint t ^ h i e f s o f ^ t a f f
Instruction ( t ^ . l ^ ^ l ) ^ 2 1 ^ . 0 1 8 a n d .loint l^ublication3 1^.3.In .loint and Army operations, O f ^ ^ ^ t ^ i s a c o r e capability
o f l O a s p r e s c r i b e d i n . 1 1 ^ ^ l ^ ^ a n d f ^ l ^ ^ 1^
(2) Operationssecurity contributes directly to t h e A r m y ^ s a b i l i t y to employ forces superior to an adversary across
the full spectrum o f operations, without critical information about our forces, adversaries cannot design and build
systems,devisetactics,train,orotherwisepreparetheirforces(physically or psychologically)intime to effectively
counter the Army^s capabilities, activities, and intentions, and exploit the Army^s limitations.
(^) t^ombatcapability increasingly depends uponmaintaining information superiority. This impacts all aspectsof
raising, equipping, training, deploying, employing and sustaining forces, ^very Army organisation produces or has
information that ultimately affects the ability o f 1^.^.forces to accomplish missions.f^very organisation must identify
and protect this information which an adversary could use against 1^.^. forces.
(^) l^esearch, development, test, and evaluation (I^OT^I^) activities are particularly vulnerable to the loss o f
sensitive information and technology,both classified and unclassified,due to t h e l o n g life o f the development process
and the large number of personnel,organisations, and contracted companies involved.t^riticalinformationlost during
the development process c a n r e s u l t i n an adversary countermeasurebeingdevelopedevenbeforeasystem isfielded.
systems protection, to include the acquisition process, is necessary to preserve the advantage o f technological
superiority o f t^.^. forces. Of^^l^^ assessmentsand surveys w i l l be usedtoevaluate the vulnerabilities o f sensitive
information and technology during the research, development, testing, and evaluation phases.
(^) Army f^rogram l^^ecutive Officers (l^f^Os),programmanagers(l^l^s),pro^ect managers (l^iyis),andcontracting
officialsmustconsiderOf^^f^t^ and incorporate Of^^f^t^ implementationasastipulation i n a l l contracts. A l l require
ments packages must receive an 01^^13^ review by the user agency ( I ^ A ) o r requiring activity (I^A) prior to submission
to the Oovemment contracting Activity (Ot^A). It is critical t h a t t h e I ^ A ^ I ^ Of^^i^^ Officer identify Of^^^^
requirements in the scope of work.
(^) The f ^ . ^ . O o v e m m e n t i s a p a r t y to various arms control agreements,which allow access by foreign officials to
t^.^. military installations and supporting contractor facilities.
Intermediate-I^ange^uclearf^orces (li^f^), strategic A r m s l ^ e d u c t i o n T r e a t y ( ^ T A I ^ T ) a n d ^ h e m i c a l weapons
t ^ o n v e n t i o n ( t ^ ^ ^ ) agreements have provisions for o n s i t e i n s p e c t i o n s . t ^ n d e r ^ ^ ^ , c h a l l e n g e inspections mayoccur
at sites and in buildings that have nothing to do with declared chemical weapons activity, f^egional multi national
treatiessuchasthet^onventional Armed f^orces in ^uropetreaty o r t h e ^ i e n n a f ^ o c u m e n t 1999, affect Army units
stationed on host country territory. Army unitscan b e s u b ^ e c t t o o b s e r v a t i o n s o f unit activity in garrison or while
d e p l o y e d o n t h e t e r r i t o r y o f a c o u n t r y which i s a l s o a t r e a t y participant, ^ i t h o n l y 72 h o u r s o f a d v a n c e n o t i c e , t h e
Open ^kies Treaty w i l l allow reconnaissance overflights anytime, anywhere, with few exceptions.
These agreements, while enhancing 1^.^. national security, provide adversaries with opportunities to collect
criticalinformationunrelated to the treaties.l^achArmyorgani^ation or activity must have an Of^^l^^plan to protect
critical information unrelated to legitimate inspection aims.The plan must direct immediate implementation o f OI^^I^O
measuresfor daily vulnerabilities. T h i s m a y h e l p t o a v o i d c o m p r o m i s e o f c r i t i c a l i n f o r m a t i o n a n d a c t i v i t i e s t h a t a r e
likely collateral collection targets o f t h e s e foreign inspections, unrelated to the treaties. The plan must also have
additional measures that are specific f o r a p a r t i c u l a r inspection regime. T h e s e a d d i t i o n a l O f ^ ^ ^ ^ measuresmust be
ready for implementation after notice o f an impending inspection.
^ Operations security is more important now than it has ever been.Thel^.^.faces cunning and ruthless adversaries
fighting asymmetrically to avoid our strengths.The first step for them to infiict harm is to gather information about us.
They are exploiting the openness andfreedoms of our societyby aggressively reading and collecting material that is
needlessly exposed to them. O o o d O l ^ ^ ^ ^ practices can prevent these compromises and allow us to maintain essential
secrecy about our operations.

proponent
The f^eputyOhief o f ^ t a f f ( f ^ t ^ ^ ) 0 ^ ^ ^ ^ 7 i s the Army^s proponent for Ol^^^t^.^obsequently, the command, unit,
activity, or installation operations officer is the staff proponent for Of^^^t^. However, the success or failure o f Ol^^i^^
isultimately the responsibilityof the Oommander and the most important emphasis for implementing Of^^^Ocomes
from the chain o f command.
^. Operations security is an operations function that protects critical information and requires close integration with
other security programs.
^. A u n i t or organisation's commander, operations officer, and the Of^^l3^ Officer must consider O l ^ ^ ^ ^ in all unit
activities to maintain operational effectiveness.
(1) t^nit actions areaprimary source of indicators collected by adversaries.The commander, advised by the Of^^f^O
Officer, controls these actions, assigns tasks, and allocates resources to implement Of^^f^t^ measures (see app f^).
(2) 8yconstantlyobserving activities, the 01^^80 Officer can evaluate these measures for their effectiveness and
their impact on operational success.
AR 5 3 0 - 1 ^ 1 9 April 2007

FOR OFFICIAL USE ONLY

3

23301

F ^

OFFICIAL USE ONLY

c In organisations without aspecified operations staff, theelement with primary responsibility for planning,
coordinating, and executing the organisation's mission activities will be the proponent forOf^^f^^.
^ ^iletheOI^^8t^Officerisresponsibleforthedevelopment,organi^ation,andadministrationofanOf^^^t^
program, the t^ommander^s emphasis and support from the chain of command is essential to ensure the proper
implementation of an Ol^^f^^ program.

Ol^a^t^r^
R^^^ot^^ll^llltl^^
All Army personnel
Operations security is everyone^s responsibility, f^ailure to properly implement Of^^^t^ measures can result in serious
in^uryor death to our personnel,damage to weapons systems,equipment andfacilities,loss of sensitive technologies
and mission failure.OI^^^Oisacontinuous process and an inherent part of military culture and as such,must be fully
integrated intothe execution of all Army operationsand supportingactivities. All department ofthe Army (f^A)
personnel (active component, reserve component to include f^.^. Army l^eserve. Army national Ouard, and f^A
civilians), and f^Of^ contractors will—
^ l^now what their organisation considers to be critical information,where it islocated,whois responsible for it,
how to protect it, and why it needs to be protected.
^. l^rotect from disclosureany critical informationandsensitive information to whichtheyhavepersonal access.
(1) commanders willissue orders, directives, and policies for unit or organisation personnel to protect critical and
sensitive information in order to clearly define the specific 0 1 ^ ^ ^ ^ measures that all personnel should practice.
(2) A failuretocomply withtheseorders,directives,orpoliciesmay bepunishedas violations o f a l a w f u l order
underArticle 92 of the t^niform^ode of iyiilitary.lustice(t^^l^.l) or under other disciplinary,administrative, or other
actions as applicable.
(^) l^ersonnel not subject to the l^t^l^f who fail to protect critical and sensitive information from unauthorised
disclosure may be subject to administrative, disciplinary, contractual, or criminal action.
^ l^reventdisclosure ofcritical andsensitive information inany public domainto includebutnot limited tothe
^ o r l d ^ i d e ^ e b , open source publications, and the media.
(1) f^o not publicly disseminate, or publish photographs displaying critical or sensitive information, ^^amples
include but are not limited to Improvised ^^plosive Oevice (l^f^) strikes, battle scenes, casualties, destroyed or
damaged equipment, personnel killed inaction(I^IA), both friendly and adversary, and theprotective measures of
military facilities.
(2) f^o not publicly reference, disseminate, or publish critical or sensitive information that has already been
compromised as this provides further unnecessary exposure of the compromised information and may serve to validate
it.
^ Implement Of^^f^t^measures as ordered by the ^ommander,director,oranindividual in an equivalent position.
^ Actively encourage others (including family members and family readiness groups (f^l^Os))to protect critical and
sensitive information.
^ l^now who their unit, activity, or installation Ol^^^^ Officer is and contact them forquestions, concems, or
recommendations for Of^^f^t^ related topics.
^ t^onsultwiththeir immediate supervisor andtheirOf^^f^^Officerfi^ranOI^^I^Oreview prior topublishingor
posting information in a public forum.
(1) Thisincludes,but isnot limitedto letters, resumes,articlesforpublication,electronicmail(e-mail), website
postings, Weblog (b1og)postings,discussion in lntemetinformationforums,discussion in Intemet message boards or
other forms of dissemination or documentation.
(2) supervisors will advisepersonneltoensurethat sensitive andcritical information isnot tobe disclosed, ^ach
unit or organisation's Ol^^f^O Officer will advise supervisors on means to prevent the disclosure of sensitive and
critical information.
^. f^rocess, store, or transmit classified information no higher than the approved accreditation level of a f^Of^
computer system, including all related equipment, networks and network devices (including Intemet access) and
removable media devices.
(1) 0 0 0 computer systemsmay bemonitoredforall lawfulpurposes,to ensure that their use isauthori^ed,for
management of the system, to facilitate protection against unauthorised access, and to verify security procedures,
stirvivability, and operational security, fretwork monitoring is done in accordance with Al^ 2^ 2 and Al^ ^ 8 0 ^ ^ .
(2) t^nauthori^ed use of a f^Of^ computer system may subject the user to criminal prosecution, evidence of
unauthorised use collected during monitoring may be used for administrative, criminal or other adverse action.I^se ofa
f^OO computer system constitutes consent for all lawful purposes.
(^) ^ ^ e n an encryption featureis available onunclassifiednetworks,encrypt e-mail messages containing sensitive
^

AR 530^^ ^19 April 2007

FOR OFFICIAL USE ONLY

23302

hOR OFFICIAL USE ONLY
information. (See para I-6c for examples of sensitive information.) Encryption serves as an OPSEC measure to protect
sensitive information transmitted over unclassified networks.
/. Consider handling attempts by unauthorized personnel to solicit critical information or sensitive information as a
Subversion and Espionage Directed Against the U.S. Army (SAEDA) incident per AR 381-12.
(1) DA personnel who have been involved in or have knowledge of a SAEDA incident will report all facts
immediately to the nearest supporting counterintelligence (CI) office as required by AR 381-12.
(2) I f these offices are not readily available, SAEDA incidents will be reported to the unit or organization security
manager or commander.
(3) Security managers and commanders will ensure that, without exception, reports are relayed as securely and
expeditiously as possible, but in all cases within 24 hours, to the nearest CI element.
(4) I f counterintelligence support is not available, call the 1-800-CALL-SPY (1-800-225-5779) hotline, leave a
message with your name and telephone number and no further details.
/ Destroy (bum, shred, and so forth) critical and sensitive information that is no longer needed to prevent the
inadvertent disclosure and reconstruction of this material.

2-2. Commanders at all levels
Note. For the purpose of this regulation, this designation applies to all four categories of command: operations,
strategic support, recruiting and training, and installation.
a. Commanders at all levels are responsible for ensuring that their units, activities, or installations plan, integrate,
and implement OPSEC measures to protect their command's critical information in every phase of all operations,
exercises, tests, or activities.
(1) Commanders at all levels are responsible for issuing orders, directives, and policies to protect their command's
critical and sensitive information in order to clearly define the specific OPSEC measures that their personnel should
practice.
(2) Personnel who fail to comply with orders, directives, or policies to protect critical and sensitive information may
be punished under violations of a lawful order under UCMJ, Art. 92 or under other disciplinary, administrative, or
other actions as applicable.
(3) Personnel not subject to the UCMJ who fail to protect critical and sensitive information from unauthorized
disclosure may be subject to administrative, disciplinary, contractual, or criminal action.
b. Commanders will ensure that their OPSEC program or OPSEC measures are coordinated and synchronized with
the higher command's security programs such as information security (INFOSEC), information assurance (1A),
physical security, force protection, and so forth.
c. Commanders will ensure all official information released to the public, to include the World Wide Web, receives
an OPSEC review prior to dissemination. See paragraph 2-3a (15) for more details.

2-3. Commanders of units, activities, and installations at battalion and higher echelons
Note: For the purpose of this regulation, a unit or activity is at battalion level or a higher echelon when its
commander or director is a lieutenant colonel (or civilian equivalent) or higher. This applies to any unit or activity
authorized by either a modified table of organization and equipment (MTOE) or a table of distribution and allowances
(TDA). This section applies to all four categories of command: operations, strategic support, recruiting and training,
and installation. Garrison Commands have additional requirements in paragraph 2-23. Program executive officers,
product managers, project managers are addressed in paragraph 2-7. The HQDA Staff and Army Command, Army
Service Component Command, and Direct Reporting Unit staff organizations are addressed in paragraph 2-4b.
a. In addition to the requirements outlined in paragraph 2-2, commanders at battalion and higher echelons will
develop and implement a functioning, active, and documented (formal) OPSEC program for their unit, activity, or
installation to meet their specific needs and to support the OPSEC programs of higher echelons. To develop and
implement a formal OPSEC program, commanders will—
(1) Appoint an OPSEC Officer in writing with responsibility for supervising the execution of proper OPSEC within
their organization. This appointment may be an additional duty.
(2) Ensure that the appointed OPSEC Officer receives appropriate training in accordance with chapter 4 of this
regulation, and that they are of sufficient rank or grade to execute their responsibilities.
(3) Establish a documented OPSEC program that includes as a minimum, OPSEC Officer appointment orders and
an OPSEC SOP. At a minimum, the OPSEC standing operating procedure (SOP) should include the unit or activity's
critical information and OPSEC measures to protect it.
(4) I f assigned intelligence and counterintelligence (01) capabilities, provide intelligence and CI support to the
command's OPSEC program. When this is not practical or possible, forward requirements through channels to the
appropriate threat analysis center. The OPSEC process depends on reliable intelligence and CI support to properly
identify critical information, analyze the threat, analyze vulnerabilities, conduct a risk assessment, and implement
OPSEC measures.
(5) Approve the unit, activity, or installation Critical Information List (OIL) or Essential Elements of Friendly
AR 530-1 • 19 April 2007

FOR OFFICIAL USE ONLY

5

23303

UNITED STATES OF AMERICA
Government Motion
to Take Judicial Notice
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Enclosure 4
3 August 2012

23304

Westlaw
18 U.S.C.A. §641

Page 1

Effective: July 15, 2004
United States Code Annotated Currentness
Title 18. Crimes and Criminal Procedure (Refs & Annos)
•^H Part I. Crimes (Refs & Annos)
Chapter 3 1. Embezzlement and Theft (Refs & Annos)
§ 641. Public money, property or records
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have
been embezzled, stolen, purloined or converted—
Shall be fined under this title or imprisoned not more than ten years, or both^ but if the value of such property in
the aggregate, combining amounts from all the counts for which the defendant is convicted inasingle case,does
not exceed the sum of^1,000,he shall be fined under this title or imprisoned not more than one year, or both.
The word ^^value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

CREDIT(S)
(June 25, 1948, c. 645, 62 Stat. 725; Sept. 13, 1994, Pub.L. 103-322, Title XXXIII, § 330016( 1 )(H), (L), 108
Stat. 2147; Oct. I I , 1996, Pub.L. 104-294, Title VI, § 606(a), 110 Stat. 3511; July 15, 2004, Pub.L. 108-275, §
4, 118 Stat. 833.)
HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports
1948 Acts. Based on Title 18, U.S.C, 1940 ed., §§ 82, 87, 100, 101 (Mar. 4, 1909, c. 321, §§ 35, 36, 47, 48, 35
Stat. 1095, 1096-1098; Oct. 23, 1918, c. 194, 40 Stat. 1015; June 18, 1934, c. 587, 48 Stat. 996; Apr. 4, 1938, c.
69, 52 Stat. 197; Nov. 22, 1943, c. 302, 57 Stat. 591).

I 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

23305

UNITEDSTATESOF AMERICA
Government Motion
toTakeJudicial Notice
Manning, Bradley E.
FFC,U.S.Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
FortMyer, Virginia 22211

Enclosures
3August2012

23306

^^5^^8^
1 8 U S C A § 793

P^^^^

Effective: ^ c t o b e r l l , 1 9 9 6
United StatesCodeAnnotatedCurrentness
Title18.Crimes and Criminal Procedure(Refs^Annos)
^I^PartLCrimes(Refs^Annos)
Chapter 37.Espionage and Censorship(Refs^Annos)
^ ^ ^ 7 9 3 . f a t h e r i n g , transmitting or losing defense information

(a^Whoever,for the purpose ofobtaining information respecting the national defense withintent or reason to
believe that the information is to be used to the injury of the United States, or to the advantage of any foreign
nation,goes upon,enters,flies over,or otherwise obtainsinformation conceming any vessel,aircraft, workof
defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal,
railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research
laboratory or station or other place connected with the national defense owned or constructed, or in progress of
construction by the United States or under the control ofthe United States, or ofany ofits officers, departments,
or agencies, or within the exclusivejurisdiction ofthe United States,or any place in which any vessel,aircraft,
arms,munitions,or other materials or instrumentsforuseintime of war arebeing made,prepared,repaired,
stored, or are the subject ofresearch or development, under any contract or agreement with the United States, or
anydepartment or agency thereof, or with any person on behalfof the United States, or otherwise on behalf of
the United States,or any prohibited place so designated by the President by proclamation in time of war or in
case of national emergency in which anything for the use of the Army,Navy,orAir Force is being prepared or
constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense; or

(b) Whoever, for the purpose aforesaid,and withlike intent or reason to believe,copies,takes, makes,or ob
tains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan,
map, model,instrument, appliance, document,writing, or note of anything connected with the national defense;
or

(c) Whoever,for the purpose aforesaid,receives or obtains or agrees or attempts to receive or obtain from any
person, or from any source whatever, any document,writing,code book, signal book, sketch, photograph,photographic negative, blueprint, plan,map, model,instrument, appliance,or note,of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to
receive or obtain it, that it has been or willbe obtained,taken,made,or disposed ofby any person contrary to
the provisions ofthis chapter; or

(d) 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.

^ 2012ThomsonReutersNo Claim to Orig. u s Oov Works

23307

I 8 U S C A § 793

P^^^2

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, transmitsorcausestobecommunicated, delivered, or
transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmifted
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 ofthe United States entitled to receive it; or

(e) Whoever having unauthorized possession of, access to,or control over anydocument,writing,code book,
signalbook, 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 pos
sessor has reason to believe could be used to the injuryof 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 to the officer or employee
ofthe United States entitled to receive it; or

(f) Whoever, being entrusted with or having lawful possession or control of any document,writing, code book,
signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instroment, appliance,
note,or information,relating to the national defense,(I)through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation ofhis trust, or to be lost, stolen,ab
stracted, or destroyed,or(2)having knowledge that the same has been illegally removed from its proper place of
custody or delivered to anyonein violation of its trust,orlost,or stolen,abstracted,or destroyed, andfails to
make prompt report ofsuch loss, theft, abstraction, or destruction to his superior officer

Shall be fined under this title or imprisoned not more than ten years, or both.

^^^Iftwo or more persons conspire to violate any ofthe foregoing provisions ofthis section, and one or more of
such personsdo any acttoeffecttheobject ofthe conspiracy,each ofthe partiesto such conspiracy shall besub
ject to the punishment provided for the offense which is the object ofsuch conspiracy.

(h^(f^ Any person convicted ofaviolation of this section shall forfeit to the United States,irrespective of any
provision ofState law,any property constituting, or derived from,any proceeds the person obtained,directly or
indirectly,from any foreign govemment, or any faction or party or military or naval force withinaforeigncoun
try,whether recognized or unrecognized by the United States,as the result of such violation.For the purposes of
this subsection, the term^^State"includesaState of the United States, the District of Columbia, and any com
monwealth, territory,or possession ofthe United States.

(2) The court, in imposing sentence onadefendantforaconvictionofaviolation of this section,shall order that
the defendant forfeit to the United States all property described in paragraph(I)of this subsection.

(3) The provisions of subsections (b),(c),and(e)through(p)ofsection4I3 of the Comprehensive Drug Abuse

^ 20I2ThomsonReutersNo Claim to Orig. u s Oov Works.

23308

I 8 U S C A § 793

P^ge3

Prevention and Control Act ofI970(2IUS.C 853(b),(c),and(e)(p))shall apply to
(^^ The provisions of subsections (b),(c),and(e)through(p)ofsection4I3of the Comprehensive Drug Abuse
Prevention and Control Act ofI970 (21 U.SC 853(b),(c),and(e)(p))shall apply to
(A) property subject to forfeiture under this subsection;
(^^ any seizure or disposition of such property; and
(C) any administrative orjudicial proceeding in relation to such property,
ifnot inconsistent with this subsection.
(4) Notwithstanding section 524(c)of title 28,there shall be deposited in the CrimeVictims Fund in theTreasury allamountsfromtheforfeiture of property under this subsection remaining after the payment ofexpenses
for forfeiture and sale authorized by law.
(4) Notwithstanding section 524(c)of title 28,there shall be deposited in the CrimeVictims Fund in theTreas
ury allamountsfromtheforfeiture of property under this subsection remaining after the payment ofexpenses
for forfeiture and sale authorized by law.

CREDIT(S)
(June25,l948,c 645,62 Stat 736;Sept23,I950,c 1024,Tit1el,§18,64Stat 1003;Aug 27,1986,PubL
99 399,TitleX1IL§1306(a),100Stat 898;Sept 13, 1994, PubL 103 322, Title XXXI1L^ 330016(1)(L), 108
Stat. 2147; Oct. 14, 1994,PubL 103 359,TitleVllL§ 804(b)(1), 108 Stat. 3440; Oct. I I , 1996, Pub.L
104 294, Title VI,§ 607(b),110Stat3511)
(June 25,1948,c 645,62 Stat 736;Sept23,I950,c 1024, Title 1,§I8, 64 Stat 1003; Aug27,I986,PubL
99 399,TitleXIII,^l306(a),I00Stat 898;Sept 13, 1994, PubL 103 322, Title XXXIII,§ 3300I6(I)(L), 108
Stat 2147; Oct 14, 1994, PubL 103 359,TitleV1IL§ 804(b)(1), 108 Stat 3440; Oct 11,l996,PubL
104 294, Title VI,§ 607(b),llOStat35II)
HISTORICAL AND STATUTORYNOTES
Revision Notes and Legislative Reports
1948 Acts Based on ^^31and 36 ofTitle 50, U.S.C, 1940 ed,War and National Defense (June 15, 1917,c.
30,TitIeI,§§l,6,40Stat217,219;Mar 28,1940,c72,§1,54Stat79)
1948 Acts Based on §^31and 36 ofTitle 50, U.S.C, 1940 ed.,War and National Defense(June 15, 1917,c.
30,Tit1el,§§l,6,40Stat2I7,2I9;Mar 28,1940,c72,§I,54Stat79)
Section consolidated §§3land 36 ofTitle 50, U.S.C,1940 ed.,War and National Defense.
Section consolidated §§31and 36 ofTitle50,USC,1940ed,Warand National Defense.

^ 2012ThomsonReutersNo Claim to OrigUSOov Works

23309

UNITED STATESOF AMERICA
v^
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
FortMyer,Virginia 22211

Government Motion
toTake Judicial Notice

Enclosures
3August2012

23310

Westlaw.
I8U.S.C.A. § 1030

Pagel

Effective: September 26, 2008
United States Code Annotated Currentness
Title 18. Crimes and Criminal Procedure (Refs & Annos)
Part I. Crimes (Refs & Annos)
•^1 Chapter 47. Fraud and False Statements (Refs & Annos)
§ 1030. Fraud and related activity in connection with computers
(a) Whoever—

(1) 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, 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;
(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains-

(A) information contained in a financial record of a financial institution, or of a card issuer as defined in
section 1602(n) of title 15, or contained in a file of a consumer reporting agency on a consumer, as such
terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);
(B) information from any department or agency of the United States; or
(C) information from any protected computer;
(3) intentionally, without authorization to access any nonpublic computer of a department or agency of the
United States, accesses such a computer of that department or agency that is exclusively for the use of the
Government of the United States or, in the case of a computer not exclusively for such use, is used by or for
the Govemment of the United States and such conduct affects that use by or for the Government of the United

) 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

23311

1 8 U S C A ^ 1030

Page2

States;
(4^ knowingly and with intent to defraud,accessesaprotected computer without authorization, or exceeds authorized access,and by means of such conduct furthers the intended fraud and obtains anything of value,unless the object of thefraud and the thing obtained consists onlyof the use of the computer and the value of
suchuseisnotmorethan^5,000inany I year period;
(^)(A^knowingly causesthetransmissionofaprogram, information,code,orcommand,andasaresultof
such conduct, intentionally causes damage without authorization,toaprotected computer;
(8) intentionally accessesaprotected computer without authorization,and asaresult of such conduct, recklessly causes damage; or
(C) intentionally accessesaprotected computer without authorization,and asaresult of such conduct, causes
damage and loss.
(6) knowingly and with intent to defraud traffics (as defined in section 1029) in any password or similar information through whichacomputer may be accessed without authorization,if
(Assuch trafficking affects interstate or foreign commerce; or
(8) such computer is used by or for the Government of the United States; ^FNl^
(7) with intent to extort from any person any money or other thing of value, transmits in interstate or foreign
commerce any communication containing any(A) threat to cause damage toaprotected computer;
(B) threat to obtain information fromaprotected computer without authorization or in excess of authorization or toimpair the confidentiality of information obtained fromaprotected computer without authorization or by exceeding authorized access; or
(0) demandor request for money or other thingofvalueinrelationto damage toaprotectedcomputer,
where such damage was caused to facilitate the extortion;
shall be punished as provided in subsection(c)of this section.
(b)Whoever conspires to commit or aftempts to commit an offense under subsection (a) of this section shall be

2012Thomson Reuters. No Claim to Orig. us Gov.Works.

23312

18USCA^1030

P^g^3

punished as provided in subsection(c)of this section.

(c^ The punishment for an offense under subsection(a)or(b)of this section i s -

(1) (A)afine under this title or imprisonment for not more than ten years,or both, in the case of an offense un
dersubsection(a)(I)of this section which does not occur afteraconviction for another offense under this sec
tion, or an aftempt to commit an offense punishable under this subparagraph; and

( B ) a f i n e under this title or imprisonment for not more than twenty years,or both, in the case of an offense
under subsection(a)(l)of this section which occurs afteraconviction for another offense under this section,
or an attempt to commit an offense punishable under this subparagraph;

(2) (A) except as provided in subparagraph (B),afine under this title or imprisonment for not more than one
year, or both,in the case of an offense under subsection(a)(2), (a)(3), or(a)(6) of this section which does not
occur afteraconviction for another offense under this section, or an attempt to commit an offense punishable
ttnder this subparagraph;

(B) afine under this title or imprisonment for not more than5years,or both,in the case of an offense under
subsection(a)(2), or an attempt to commit an offense punishable under this subparagraph,if—

(i) the offense was committed for purposes ofcommercial advantage or private financial gain;

(11^ the offense was committed in furtherance ofany criminal or tortious act in violation ofthe Constitution
or laws ofthe United States or ofany State; or

^111^ the value ofthe information obtained exceeds ^5,000; and
(C) afine under this title or imprisonment for not more than ten years,or both, in the case of an offense under
subsection(a)(2),(a)(3)or(a)(6) ofthis section which occurs afteraconviction for another offense under this
section, or an attempt to commit an offense punishable under this subparagraph;

(3) ( A ) a f i n e under this title or imprisonment for not more than five years,or both,in the case of an offense
under subsection(a)(4)or(a)(7) of this section which does not occur afteraconviction for another offense under this section, or an aftempt to commit an offense punishable under this subparagraph; and

(B^afine under this title or imprisonment for not more than ten years,or both,in the case of an offense under
subsection (a)(4)or (a)(7) of this section which occurs afteraconviction for another offense under this sec
tion, or an attempt to commit an offense punishable under this subparagraph;

^2012ThomsonRei.ters. No Claim to Orig. u s Gov.Works.

23313

I8USCA^1030

P^ge4

(4)(A) except as provided in subparagraphs(E) and (F),afine under this title,imprisonment for not more than
5years,orboth,inthecaseof
(i) an offense under subsection(a)(5)(B),which does not occur afteraconviction for another offense under
this section, if the offense caused (or, in the case of an attempted offense, would, if completed, have
caused)—
(I) losstol or more persons during any 1-year period(and, for purposes of an investigation, prosecution,
or other proceeding brought by the United States only,loss resulting fromarelated course of conduct affectinglor more other protected computers)aggregating at least ^5,000 in value;
(II) the modification or impairment, or potential modification or impairment, ofthe medical examination,
diagnosis,treatment, or care o f l o r more individuals;
(III) physical injury to any person;
(IV) athreat to public health or safety;
(V) damage affectingacomputer used by or for an entity ofthe United States Govemment in furtherance
ofthe administration ofjustice, national defense, or national security; or
(VI) damage affectinglOor more protected computers during any 1-year period; or
^11^ an aftempt to commit an offense punishable under this subparagraph;
(B) except as provided in subparagraphs(E) and (F),afine under this title, imprisonment for not more thanlO
years, or both, in the case of
(i) an offense under subsection(a)(5)(A),which does not occur afteraconviction for another offense under
this section, if the offense caused(or, in the case of an attempted offense, would, if completed, have caused)
aharm provided in subclauses(l) through (Vl)of subparagraph (A)(i); or
(11^ an aftempt to commit an offense punishable under this subparagraph;
(C) except as provided in subparagraphs (E) and (F),afine under this title, imprisonment for not more than
20 years, or both, in the case of
(i) an offense or an aftempt to commit an offense under subparagraphs (A)or(B)of subsection (a)(5) that

^2012Thomson Reuters. No Claim to Orig. us Gov Works.

23314

I 8 U S C A ^ 1030

P^ge5

occurs afteraconviction for another offense under this section; or
(ii) an aftempt to commit an offense punishable under this subparagraph;
(l^)afine under this title,imprisonment for not more than lOyears, or both, in the case of—
(i) an offense or an attempt to commit an offense under subsection (a)(5)(C) that occurs afteraconviction
for another offense under this section; or
(ii) an aftempt to commit an offense punishable under this subparagraph;
(E) ifthe offender attempts to cause or knowingly or recklessly causes serious bodily injury from conduct in
violation of subsection(a)(5)(A),afine under this title, imprisonment for not more than 20 years,or both;
(E) if the offender attempts to cause or knowingly or recklessly causes death from conduct in violation of subsection(a)(5)(A),af^ne under this title,imprisonment for any term of years or for life, or both; or
(^)afine under this title, imprisonment for not more thanlyear, or both,for—
(1) any other offense under subsection(a)(5); or
(n) an aftempt to commit an offense punishable under this subparagraph.
|(^)RepealedPubL 110 326, Title I I , ^ 204(a)(2)(D),Sept 26,2008, 122 Stat 3562j
(d) (1)The United States Secret Service shall,in addition to any other agency having such authority,have the au
thority to investigate offenses under this section.
(2) TheFederalBureau of Investigation shall have primary authority toinvestigateoffensesunder subsection
(a)(1)for any cases involving espionage,foreign counterintelligence,information protected against unauthorized
disclosure for reasons of national defense or foreign relations,or Restricted Data(as that term is defined in sec
t i o n l l y o f the Atomic EnergyActofl954 (42 U.S.C.2014(y)), except for offenses affecting the duties of the
United States Secret Service pursuant to section 3056(a)of this title.
(3) Such authority shall be exercised in accordance with an agreement which shall be entered into by the Secretary of theTreasury and the Attorney General.
(e) As used in this section—

^2012Thomson Reuters. No Claim to Orig. US Gov.Works.

23315

I8USCA^1030

Page6

(1) the term ^^computer" means an electronic,magnetic,optical,electrochemical,or other high speed data processingdevice performinglogical,arithmetic,or storagefunctions,andincludes any data storagefacilityor
communications facilitydirectly related to or operating in conjunction with such device,but such termdoes
not include an automated typewriter or typesetter,aportable hand held calculator, or other similar device;
(2) the term ^^protected computer" meansacomputer—
(A) exclusively for the use ofafinancialinstitution or the United States Govemment, or, in the case ofa
computer not exclusively for such use, used by or forafinancial institution or the United States Govemment
andthe conductconstituting the offense affects that useby or for thefinancial institutionortheGovem
ment; or
(B) whichisusedinor affecting interstate or foreigncommerce or communication,includingacomputer
located outside the United States that is used inamanner that affects interstate or foreign commerce or communication of the United States;
(3) the term ^^State" includes the District ofColumbia, the Commonwealth ofPuerto Rico, and any other com
monwealth, possession or territory ofthe United States;
(4) the term ^^financial institution" means—
(A^ an institution, l^FN2^with deposits insured by the Federal Deposit Insurance Corporation;
(B) the Federal Reserve oramember of the Federal Reserve including any Federal Reserve Bank;
(C) acredit union with accounts insured by the National Credit Union Administration;
(l^)amember of the Federal home loan bank system and any home loan bank;
(E) any institution of the Farm Credit System under theFarm Credit Act ofl971;
(E)abroker-dealer registered with the Securities and Exchange Commission pursuant to section 15 ofthe
Securities Exchange Act of1934;
(C^) the Securities Investor Protection Corporation;
(If)abranch or agency ofaforeignbank(as such terms are defined in paragraphs(l)and(3)of section 1(b)
of the Intemational Banking Act ofl978); and

^20l2ThomsonReuters.NoClaimtoOrig. us Gov.Works.

23316

1 8 U S C A ^ 1030

Page7

(1) an organization operating under section 25 or section 25(a)of the Federal Reserve Act;
(^) the term ^^f^nancial record" means information derived from any record held byafinancial institution pertaining toacustomer^s relationship with the financial institution;
(6) the term^^exceeds authorized access" means to accessacomputer with authorization and to use such ac
cess to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter;
(7) the term ^^departmentofthe United States" means the legislative or judicial branch of the Govemment or
one ofthe executive departments enumerated in sectionlOloftitle 5;
(8) the term ^^damage" means any impairment to the integrity or availability of data,aprogram,asystem, or
information;
(9) the term ^^govemment entity" includes the Govemment ofthe United States, any State or political subdivi
sion of the United States, any foreign country, and any state, province, municipality, or other political subdivision ofaforeign country;
(10) the term ^^conviction" shall includeaconviction under the law of any State foracrime punishable by imprisonment for more thanlyear, an element of which is unauthorized access,or exceeding authorized access,
toacomputer;
(11) the term ^^loss" means any reasonable cost to any victim, including the cost ofresponding to an offense,
conductingadamage assessment, and restoring the data, program,system, or information to its condition prior
to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service; and
(12) the term^^person" means any individual,firm, corporation, educational institution, financialinstitution,
governmental entity, or legal or other entity.
(f) This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity ofa
law enforcement agency of the United States,aState,orapolitical subdivision ofaState, or of an intelligence
agency ofthe United States.
(g) Any person who suffers damage or loss by reason ofaviolation of this section may maintainacivil action
against the violator to obtain compensatory damages and injunctive relief or other equitable relief Acivil action
foraviolation of this section may be brought only if the conduct involveslof the factors set forth in subclauses
(1), (II), (111), (IV), or (V) of subsection(c)(4)(A)(i). Damages foraviolation involving only conduct described
in subsection (c)(4)(A)(i)(l) are limited to economic damages. No action may be brought under this subsection
unless such action is begun within2years of the date of the act complained of or the date of the discovery ofthe

^ 2012ThomsonReutersNo Claim to OrigUS Gov Works

23317

I8USCA^1030

P^ge8

damage. No action may be brought under this subsection for the negligent design or manufacture of computer
hardware, computer software, or firmware.
(h) The Attorney General and the Secretary of theTreasury shall report to the Congress annually,during the first
3years following the date of the enactment of this subsection,conceming investigations and prosecutions under
subsection(a)(5).
(1) (l)The court,in imposing sentence on any person convicted ofaviolationof this section,or convictedof
conspiracy to violate this section, shall order, in addition to any other sentence imposed and irrespective of any
provision ofState law,that such person forfeit to the United States—
(A) such person's interest in any personal property that was used or intended to be used to commit or to facilitate the commission of such violation; and
(B) any property,real or personal,constituting or derived from,any proceeds that such person obtained,directly or indirectly,asaresult of such violation.
(2) The criminal forfeiture of property under this subsection, any seizure and disposition thereof, and any judicialproceedinginrelationthereto, shallbegovemedby theprovisionsofsection413 oftheComprehensive
Drug Abuse Prevention and Control Act ofl970 (21 U.S.C.853), except subsection(d) ofthat section.
(^) For purposes of subsection (i), the following shall be subject to forfeiture to the United States and no property right shall exist in them;
(1) Any personal property used or intended to be used to commit or to facilitate the commission of any violation of this section,oraconspiracy to violate this section.
(2) Any property,real or personal,which constitutes or is derived from proceeds traceable to any violation of
this section, oraconspiracy to violate this section l^FN3j
CREDIT(S)
(AddedPub.L 98 473,Title lL§2102(a), Oct. 12, 1984, 98 Stat2190; amended PubL 99 474,^2, Oct. 16,
1986,100 Stat 1213; PubL 100 690, Title V1L^ 7065, Nov. 18, 1988, 102 Stat. 4404; PubL 10173. Title IX,
^ 962(a)(5),Aug 9,1989,103 Stat 502; PubL 101647, Title XII, §1205(e). Title XXV, § 2597(j),Title
XXXV,§ 3533,Nov 29, 1990, 104 Stat 4831,4910, 4925; PubL 103 322, Title XX1X.^ 290001(b)to(f),
Sept 13, 1994, 108 Stat 2097 2099; Pub.L 104 294, Title IL^^OI,Title V L ^ 604(b)(36),Oct.11, 1996,110
Stat. 3491,3508; PubL 107 56, TitleV,§ 506(a), Title VI1L§814, Oct. 26, 2001, 115 Stat. 366, 382; PubL
107 273,TitlelV,§§ 4002(b)(l),(12),4005(a)(3),(d)(3),Nov 2, 2002,116 Stat 1807,1808,1812,1813;
PubL 107 296. Title 1L§ 225(g),Nov 25,2002,1l6Stat2158; PubL 110 326, Title IL^§ 203, 204(a), 205
to 208, Sept. 26, 2008, 122 Stat 3561, 3563.)

^2012ThomsonReutersNo Claim to Orig. us Gov.Works.

23318

UNITED STATESOF AMERICA
Government Motion
toTakeJudicial Notice
Manning, Bradley E.
FFCU.S.Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
FortMyer, Virginia 22211

Enclosures
3August2012

23319

Tuesday,
J a n u a r y 5, 2010

o

\=\

^

Part Vn

The President
Executive Order 13526—Classified
National Security I n f o r m a t i o n
Memorandum o f December 29, 2009—
Implementation o f the Executive Order
"Classified National Security I n f o r m a t i o n "
Order o f December 29, 2009—Original
Classification Authority

23320

707
Federal Register
Vol. 75, No. 2

Presidential Documents

Tuesday, January 5, 2010

Title 3—

Executive Order 13526 of December 29, 2009

The President

Classified National Security Information
This order prescribes a uniform system for classifying, safeguarding, and
declassifying national security information, including information relating
to defense against transnational terrorism. Our democratic principles require
that the American people be informed of the activities of their Government.
Also, our Nation's progress depends on the free flow of information both
within the Government and to the American people. Nevertheless, throughout
our history, the national defense has required that certain information be
maintained in confidence in order to protect our citizens, our democratic
institutions, our homeland security, and our interactions with foreign nations.
Protecting information critical to our Nation's security and demonstrating
our commitment to open Government through accurate and accountable
application of classification standards and routine, secure, and effective
declassification are equally important priorities.
NOW, THEREFORE, I , BARACK OBAMA, by the authority vested in me
as President by the Constitution and the laws of the United States of America,
it is hereby ordered as follows:
PART 1—ORIGINAL CLASSIFICATION
Section 1.1. Classification Standards, (a) Information may be originally classified under the terms of this order only if all of the following conditions
are met:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the
control of the United States Government;
(3) the information falls within one or more of the categories of information
listed in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security, which includes defense against
transnational terrorism, and the original classification authority is able
to identify or describe the damage.
(b) If there is significant doubt about the need to classify information,
it shall not be classified. This provision does not:
(1) amplify or modify the substantive criteria or procedures for classification; or
(2) create any substantive or procedural rights subject to judicial review.
(c) Classified information shall not be declassified automatically as a result
of any unauthorized disclosure of identical or similar information.
(d) The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.
Sec. 1.2. Classification Levels, (a) Information may be classified at one of
the following three levels:
(1) "Top Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave
damage to the national security that the original classification authority
is able to identify or describe.
(2) "Secret" shall be applied to information, the unauthorized disclosure
of which reasonably could be expected to cause serious damage to the

23321

708

Federal Register/Vol. 75, No. 2/Tuesday, January 5, 2010/Presidential Documents
national security that the original classification authority is able to identify
or describe.
(3) "Confidential" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national
security that the original classification authority is able to identify or
describe.
(b) Except as otherwise provided by statute, no other terms shall be
used to identify United States classified information.
(c) If there is significant doubt about the appropriate level of classification,
it shall be classified at the lower level.
Sec. 1.3. Classification Authority, (a) The authority to classify information
originally may be exercised only by:
(1) the President and the Vice President;
(2) agency heads and officials designated by the President; and
(3) United States Government officials delegated this authority pursuant
to paragraph (c) of this section.
(b) Officials authorized to classify information at a specified level are
also authorized to classify information at a lower level.
(c) Delegation of original classification authority.
(1) Delegations of original classification authority shall be limited to the
minimum required to administer this order. Agency heads are responsible
for ensuring that designated subordinate officials have a demonstrable
and continuing need to exercise this authority.
(2) "Top Secret" original classification authority may be delegated only
by the President, the Vice President, or an agency head or official designated pursuant to paragraph (a)(2) of this section.
(3) "Secret" or "Confidential" original classification authority may be
delegated only by the President, the Vice President, an agency head or
official designated pursuant to paragraph (a)(2) of this section, or the
senior agency official designated under section 5.4(d) of this order, provided that official has been delegated "Top Secret" original classification
authority by the agency head.
(4) Each delegation of original classification authority shall be in writing
and the authority shall not be redelegated except as provided in this
order. Each delegation shall identify the official by name or position.
(5) Delegations of original classification authority shall be reported or
made available by name or position to the Director of the Information
Security Oversight Office.
(d) A l l original classification authorities must receive training in proper
classification (including the avoidance of over-classification) and declassification as provided in this order and its implementing directives at least
once a calendar year. Such training must include instruction on the proper
safeguarding of classified information and on the sanctions in section 5.5
of this order that may be brought against an individual who fails to classify
information properly or protect classified information from unauthorized
disclosure. Original classification authorities who do not receive such mandatory training at least once within a calendar year shall have their classification
authority suspended by the agency head or the senior agency official designated under section 5.4(d) of this order until such training has taken
place. A waiver may be granted by the agency head, the deputy agency
head, or the senior agency official if an individual is unable to receive
such training due to unavoidable circumstances. Whenever a waiver is granted, the individual shall receive such training as soon as practicable.
(e) Exceptional cases. When an employee, government contractor, licensee,
certificate holder, or grantee of an agency who does not have original classification authority originates information believed by that person to require
classification, the information shall be protected in a manner consistent

23322

FederalRegister/Vol. 75, No. 2/Tuesday, January 5, 2010/Presidential Documents

700

with this order and its implementing directives. The information shall be
transmitted promptly as provided under this order or its implementing direc
fives to the agency that has appropriate subject matter interest and classification authority with respect to this information. That agency shall decide
within 30 days whether to classify this information.
Sec. 1.^. ^^oss^^co^^on C^o^^^or^^s. Information shall not be considered for
classification unless its unauthorized disclosure could reasonably be expected
to cause identifiable or describable damage to the national security in accord
ance with section 1.2 of this order, and it pertains to one or more of
thefollowing:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including covert action), intelligence sources
or methods, or cryptology;
(d) foreign relations or foreign activities of the United States, including
confidential sources;
(e) scientific, technological, or economic matters relating to the national
security;
(f) UnitedStatesGovernment programs for safeguarding nuclear materials
or facilities;
(g) vulnerabilities or capabilities of systems, installations, infrastructures,
projects, plans, or protection services relating to the national security; or
(h) the development, production, or use of weapons of mass destruction.
Sec.l.5.^uro^^ono^^^o^s^^co^^on. (a) At the time oforiginalclassification,
the original classification authority shall establish a specific date or event
for declassificationbasedonthedurationofthenational security sensitivity
ofthe information. Uponreaching the date or event, the information shall
be automatically declassified. Except for information that should clearly
and demonstrably be expected to reveal the identity ofaconfidential human
source or a human intelligence source or key design concepts of weapons
of mass destruction, the date or event shall not exceed the time frame
established in paragraph (b)of this section.
(b) If the original classification authority cannotdetermine an earlier spe
cific date or event for declassification, information shall be marked for
declassification 10 years from the date o f t h e original decision, unless tbe
original classification authority otherwise determines that the sensitivity
of the information requires that it be marked for declassification for up
to 25 years from the date of the original decision.
(c) Anoriginalclassification authority may extendthedurattonofclassification up to 25 years from the date of origin of the document, change
the level of classification, or reclassify specific information only when the
standards and procedures for classifying information under this order are
followed.
(d) Noinformation may remain classified indefinitely.Information marked
for an indefinite duration of classification under predecessor orders, for
example,marked as "Originating Agency'sDetermination Required,"or classified information that contains incomplete declassification instructions or
lacks declassification instructions shallbe declassified in accordance with
part3of this order.
Sec. 1.8. ^^^n^^^^^o^^onon^^o^^^n^^. (a) At the time of original classification,
thefollowingshallbe indicatedinamannerthat is immediately apparent:
(1) one of the three classification levels defined in section 1.2 of this
order;
(2) the identity, by name andposition, o r b y personal identifier, o f t h e
original classification authority;
(3) the agency and office of origin,if not otherwise evident;
(4) declassification instructions,which shall indicate one of thefollowing:

23323

710

FederalRegister/Vol. 75, No. 2/Tuesday, January 5, 2010/PresidentialDocuments
(.^) tbe date or event for declassification,as prescribed in sectionl.5(a);
(B) the date that is 10 years from the date of original classification,
as prescribed in section 1.5(b);
(C) the date that is up to 25years from the date of original classification,
as prescribed in section 1.5(b); or
(0) in the case of information that should clearly and demonstrably
be expected to reveal the identity of a confidential human source or
ahuman intelligence source or key design concepts of weapons of mass
destruction, the marking prescribed in implementing directives issued pur
suant to this order; and
(5)aconcise reason for classification that,ataminimum,cites the applicable classification categories in section 1.4of this order.
(b) Specific information required in paragraph (a) of this section may
be excluded If it would reveal additional classified information.
(c) With respect to each classified document, the agency originating the
document shall, by marking or other means, indicate which portions are
classified, with the applicable classification level, and which portions are
unclassified. In accordance with standards prescribed in directives issued
underthis order, the Director o f t h e Information Security Oversight Office
may grant and revoke temporary waivers ofthis requirement. The Director
shall revoke any waiver uponafinding of abuse.
(d) Markings or other indicia implementing the provisions o f t h i s order,
including abbreviations and requirements to safeguard classified working
papers, shall conform to the standards prescribed in implementing directives
issued pursuant to this order.
(e) Foreign government information shall retain its original classification
markings or shall be assigned a U.S. classification that provides a degree
of protection at least equivalent to that required by the entity that furnished
the information. Foreign government information retaining its original classi
fication markings need not be assignedaU.S. classification marking provided
that the responsible agency determines that the foreign government markings
are adequate to meet the purposes served by U.S. classification markings.
(f) Informationassignedalevelofclassific8tionunderthisor predecessor
orders shallbe considered as classified at that levelofclassificationdespite
the omission of other required markings. Whenever such information is
used in the derivative classification process or is reviewed for possible
declassification,holders of such information shallcoordinate with an appropriate classification authority for the application of omitted markings.
(g) The classification authority shall,whenever practicable,useaclassified
addendum whenever classified information constitutes a small portion of
an otherwise unclassified document or prepareaproduct to allow for disseminationat the lowest level ofclassification possible or in unclassifiedform.
(h) Prior to publicrelease, all declassifiedrecords shalJbeappropriately
marked to reflect their declassification.
Sec. 1.7. ^^oss^^co^^on Pro^^^^.^^^^ons on^ ^^m^^^o^^ons. (a) In no case shall
information be classified, continue to be maintained as classified, or fail
to be declassified in order to:
(1) conceal violations of law,inefficiency,or administrative error;
(2) prevent embarrassment toaperson,organization,or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require
protection in the Interest ofthe national security.
(b) Basic scientific research information notclearlyrelatedtothenational
security shall not be classified.
(c) Information may not be reclassified after declassification and release
to the public under proper authority unless:

23324

Federal Regtster/Vol 75, No. 2/Tuesday, January 5, 2010/PresidentialDocuments

711

(1) the reclassification is personally approved in writing by the agency
headbasedonadocument-bydocumentdeterminationby theagency that
reclassification is required to prevent significant and demonstrable damage
to the national security;
(2) the information maybe reasonably recovered withoutbringing undue
attention to the Information;
(3) the reclassification action is reported promptly to the Assistant to
the President for National Security Affairs (National Security Advisor)
and the Director of the Information Security Oversight Office; and
(4) for documents i n t h e physical and legal custody o f t h e National Archives and Records Administration (National Archives) that have been
avallablefor public use,the agencyhead has,after malting the determina
tions required by this paragraph, notified the Archivist of the United
States (Archivist), who shall suspend public access pending approval of
the reclassification action by the Director of the Information Security
Oversight Office. Any such decision by the Director may be appealed
by the agencyhead to the President through the National SecurityAdvisor.
Public access shall remain suspended pendinga prompt decision onthe
appeal.
(d) Information that has not previously been disclosed to the public under
proper authority may be classified or reclassified after an agency has received
a request for It under the Freedom of Information Act (5 U.S.C. 552), the
Presidential Records Act, 44 U.S.C. 2204(c)(1), the Privacy Act of 1074
(5 U.S.C. 552a), or the mandatory review provisions of section 3.5 of this
order only if such classification meets the requirements o f t h i s order and
is accomplished onadocumentbydocument basis with the personalparticipatlonor under the direction ofthe agencyhead, the deputy agencyhead,
or the senior agency official designated under section 5.4 of this order.
Therequirements inthis paragraphalsoapply totbose situations in which
Information has been declassified in accordance with a specific date or
event determinedby an original classificationauthority In accordance with
section 1.5 of this order.
(e) Compilations of Items of informatlonthatarelndlvldually unclassified
maybeclassifiedifthecomplledinformation reveals anaddltionalassocia
tion or relationship that:
(1) meets the standards for classification under this order; and
(2) is not otherwise revealed In the individual Items of information.
Sec. 1.8. ^^o^^^^^^o^^on ^^o^^^n^^^. (a) Authorized holders of Information
who. In good faith, believe that its classification status Is Improper are
encouraged and expected to challenge the classification status of the information In accordance with agency procedures established under paragraph
(b) ofthis section.
(b) In accordance with implementing directives Issued pttrsuant to this
order, an agency head or senior agency official shall establish procedures
under which authorized holders of information, including authorized holders
outside the classifying agency, are encouraged and expected to challenge
the classification of Information that they believe Is improperly classified
or unclassified. These procedures shall ensure that:
(1) individuals are not subject to retribution for bringing such actions;
(2) an opportunity Is provided for review by an Impartial official or
panel; and
(3) Individuals are advised of their right to appeal agency decisions to
the Interagency Security Classification Appeals Panel (Panel) established
by section 5.3 of this order.
(c) Documents required to be submitted for prepubllcatlonrevlewor other
administrative process pursuant to an approved nondisclosure agreement
are not covered by this section.

23325

712

Federal Register/Vol. 75, No. 2/Tuesday, January 5, 2010/Presidential Documents
Sec. 1.9. Fundamental Classification Guidance Review, (a) Agency heads
shall complete on a periodic basis a comprehensive review of the agency's
classification guidance, particularly classification guides, to ensure the guidance reflects current circumstances and to identify classified information
that no longer requires protection and can be declassified. The initial fundamental classification guidance review shall be completed within 2 years
of the effective date of this order.
(b) The classification guidance review shall include an evaluation of classified information to determine If it meets the standards for classification
under section 1.4 of this order, taking into account an up-to-date assessment
of likely damage as described under section 1.2 of this order.
(c) The classification guidance review shall Include original classification
authorities and agency subject matter experts to ensure a broad range of
perspectives.
(d) Agency heads shall provide a report summarizing the results of the
classification guidance review to the Director of the Information Security
Oversight Office and shall release an unclassified version of this report
to the public.
PART 2—DERIVATIVE CLASSIFICATION
Sec. 2.1. Use of Derivative Classification, (a) Persons who reproduce, extract,
or summarize classified information, or who apply classification markings
derived from source material or as directed by a classification guide, need
not possess original classification authority.
(b) Persons who apply derivative classification markings shall:
(1) be identified by name and position, or by personal identifier, in a
manner that is immediately apparent for each derivative classification
action;
(2) observe and respect original classification decisions; and
(3) carry forward to any newly created documents the pertinent classification markings. For information derivatively classified based on multiple
sources, the derivative classifier shall carry forward:
(A) the date or event for declassification that corresponds to the longest
period of classification among the sources, or the marking established
pursuant to section 1.6(a)(4)(D) of this order; and
(B) a listing of the source materials.
(c) Derivative classifiers shall, whenever practicable, use a classified addendum whenever classified information constitutes a small portion of an otherwise unclassified document or prepare a product to allow for dissemination
at the lowest level of classification possible or in unclassified form.
(d) Persons who apply derivative classification markings shall receive
training in the proper application of the derivative classification principles
of the order, with an emphasis on avoiding over-classification, at least once
every 2 years. Derivative classifiers who do not receive such training at
least once every 2 years shall have their authority to apply derivative classification markings suspended until they have received such training. A waiver
may be granted by the agency head, the deputy agency head, or the senior
agency official if an Individual is unable to receive such training due to
unavoidable circumstances. Whenever a waiver is granted, the individual
shall receive such training as soon as practicable.
Sec. 2.2. Classification Guides, (a) Agencies with original classification authority shall prepare classification guides to facilitate the proper and uniform
derivative classification of information. These guides shall conform to standards contained in directives issued under this order.
(b) Each guide shall be approved personally and in writing by an official
who:
(1) has program or supervisory responsibility over the information or
is the senior agency official; and

23326

Federal Regi^ter/Vol. 75, No. 2/Tuesday, January 5, 2010/Presidential Documents

71^

(2) Is authorized to classify Information originally at the highest level
of classification prescribed in the guide.
(c) Agencies shall establlshprocedures to ensure that classification guides
are reviewed andupdatedasprovldedlndlrectlvesissuedunder this order.
(d) Agencies shalllncorporateoriglnalclasslflcationdeclslonsinto classification guides on a timely basis and In accordance with directives Issued
under this order.
(e) Agencies may incorporate exemptions fromautomatic declassification
approvedpursuant to section 3.3(j) ofthis order Into classificationguides,
provided that the Panel is notified of the Intent to take such action for
specific information in advance of approval and the Information remains
in active use.
(f) The durationofclasslflcationof adocument classifledby a derivative
classifier using a classification guide shall not exceed 25 years from tbe
date ofthe origin ofthe document,except for:
(1) lnformatlon that should clearly and demonstrably be expected to reveal
the identity ofaconfidential human source orahuman Intelligence source
or key design concepts of weapons of mass destruction; and
(2) specific information incorporated Into classificationguides Inaccordance with section 2.2(e) of this order.
PART3 OFCLASSIFICATION ANOOOWNGRAOING
Sec. 3.1. A^^^or^^^^^^o^^^^^o^^^^^^o^^on. (a)lnformatlonshallbedeclasslfled
as soon as it no longer meets the standards for classification under this
order.
(b) Information shall be declassified or downgraded by:
(1) tbe official who authorized the original classification, if that official
Is still serving In the same position and has original classification authority;
(2) the originator's current successor in function, If that Individual has
original classification authority;
(3) a supervisory official of either the originator or his or her successor
In function,If thesupervlsory official has originalclassification authority;
or (4) officials delegateddeclassification authority Inwrlting by the agency
head or the senior agency official of the originating agency.
(c) The Director of National Intelligence (or, If delegatedby the Director
of National Intelligence, the Principal Deputy Director of National Intelllgence)may, with respect tothelntelllgence Community,after consultation
withtheheadoftheorlginatlnglntelllgenceCommunity element ordepart
ment, declassify, downgrade, or direct the declassification or downgrading
of Information or Intelligence relating to Intelligence sources, methods, or
activities.
(d) It is presumed that Information that continues to meet the classification
requlrementsunder this order requires contlnuedprotection.In some exceptional cases, however, the need to protect such information may be outweighed by the public Interest In disclosure of the Information, and in
these cases the Information should be declassified. When such questions
arIse,theyshallbereferredtotheagency header thesenloragency official.
Thatofflclal wllldetermlne,as anexerclse of discretion, whether thepubllc
interest in disclosure outweighs the damage to the national security that
might reasonably be expected from disclosure. This provision does not:
(1) amplify ormodifythesubstantlvecrlterlaor procedures forclasslfica
tion; or
(2) create any substantive or proceduralrights subject to judlcialrevlew.
(e) IftheDIrector of theinformation Security Oversight Offlcedetermlnes
that Information is classified in violation of this order, the Director may
require the Information to be declassified by the agency that originated
the classification. Any such decision by the Director may be appealed to
the President through the National SecurityAdvisor. The information shall
remain classified pendlngaprompt decision on the appeal.

23327

71^

FederalReglster/Vol. 75, No. 2/Tuesday, January 5, 2010/PresidentialDocuments
(f) The provlslonsof thissectlonshallalsoapply toagenclesthat, under
the terms of this order, do not have original classification authority, but
had such authority under predecessor orders.
(g) No Information maybe excluded from declassification under section
3.3 o f t h i s orderbased solely onthe type of document orrecord in which
It Is found. Rather, the classified Information must be considered on the
basis of its content.
(h) Classified nonrecord materials, including artifacts, shall be declassified
as soon as they no longer meet the standards for classification under this
order.
(i) Whenmaklngdecislons under sections 3.3, 3.4, and 3.5 ofthis order,
agencies shall consider the final decisions of the Panel.
Sec.3.2.^^ons^^^^e^^^co^^^.
(a) In the case of classified records transferred In conjunction with a
transfer of functions, and not merely for storage purposes, the receiving
agency shall be deemed to be the originating agency for purposes of this
order.
(b) In the case of classified records that are not officially transferred
as described In paragraph (a) of this section, but that originated In an
agency that hasceasedto exist and forwhichtherels no successoragency,
each agency in possession of suchrecords shallbe deemed to be tbe origi
natlngagency for purposes ofthis order. Suchrecords maybe declassified
ordowngradedby theagency Inpossessionoftherecords after consultation
with any other agency that has an interest In the subject matter of the
records.
(c) Classified records accessioned into the National Archives shall be
declasslfiedordowngradedby tbe Archivist inaccordance with this order,
the directives issuedpursuant to this order, agency declasslflcatlonguldes,
and any existing procedural agreement between the Archivist and the relevant
agencyhead.
(d) The originating agency shall take all reasonable steps to declassify
classified information contained in records determined to have permanent
historical value before they are accessioned into the National Archives.
However, the Archivist may require that classified records be accessioned
Into the National Archives when necessary to comply with the provisions
of theFederal Records Act. This provlslondoes not apply torecordstrans
ferred to the Archivist pursuant to section 2203 of title 44, United States
Code, or records for which the National Archives serves as the custodian
ofthe records o f a n agency or organization that has gone out of existence.
(e) To the extent practicable, agencies shall adopt a system of records
management that will facilitate thepubllcrelease of documentsat thetlme
such documents are declassified pursuant to the provisions for automatic
declassification In section 3.3 of this order.
Sec.3.3A^^omo^^^^^^^^oss^^co^^on.
(a) Subject to paragraphs (b)^(d) and (g) (j) o f t h i s section, all classified
records that (1) are more than 25 years old and (2) have been determined
tohavepermanent historical valueunder title 44,UnitedStatesCode, shall
be automatlcallydeclassifledwhether or not the records have been reviewed.
All classified records shall be automatically declassified on December 31
of the year that Is 25 years from the date of origin, except as provided
In paragraphs (b)^(d) and (g)^(j) of this section. If the date of origin of
an Individual record cannot be readily determined, the date of original
classification shall be used Instead.
(b) An agency head may exempt from automatic declassification under
paragraph (a) of this section specific Information, the release of which should
clearly and demonstrably be expected to:
(l)reveal the Identity ofaconfidential human source,ahuman Intelligence
source,arelatIonshIpwIthanintelligenceor security service of aforeign

23328

Federal Regi^ter/Vol. 75, No. 2/Tuesday, January 5, 2010/PresIdentIal Documents

715

government or International organization, or a nonhuman intelligence
source; or Impair the effectiveness of an Intelligence method currently
In use, available for use, or under development;
(2) reveal Information that wouldasslst Inthe development, production,
or use of weapons of mass destruction;
(3) reveal Information that would Impair U.S.cryptologic systems or activities;
(4) reveal Information that would Impair the application of state-of-theart technology withinaU.S.weapon system;
(5) reveal formally named or numbered U.S.military war plans that remain
In effect, or reveal operational or tactical elements of prior plans that
are contained In such active plans;
(0) reveal information, including foreign government Information, that
would cause serious harm to relations between the United States and
a foreign government, or to ongoing diplomatic activities of the United
States;
(7) reveal information that would impair the current ability of United
States Government officials to protect the President, Vice President, and
other protectees for whom protection services, In the Interest of the national
security, are authorized;
(8) reveal Information that would seriously Impair current national security
emergency preparednessplans or revealcurrentvulnerabllltiesof systems,
Installations, or Infrastructures relating to tbe national security; or
(0) vlolateastatute,treaty,or International agreement thatdoes not permit
the automatic or unilateral declassification of information at 25 years.
(c) (1) An agency head shall notify the Panel of any specific file series
of records for whicbarevlew or assessment has determined that the Information within that file series almost invariably falls within one or more of
the exemption categories listed in paragraph (b) of this section and that
the agency proposes to exempt fromautomatic declassification at 25 years.
(2) The notification shall Include:
(A) adescrlptlon of the file series;
(B) an explanation of why the information within the file series Is
almost invariably exempt from automatic declassification and why the
Information must remain classified foralonger period of time; and
(C) except whenthelnformatlonwithlntheflle series almost Invariably
Identifies a confidential human source or a human intelligence source
or key design concepts of weapons of mass destruction, a specific date
or event for declassification of the information, not to exceed December
31 of the year that Is 50 years from the date of origin of the records.
(3) The Panel may direct the agency not to exempt a designated file
series or to declassify the Information within that series at an earlier
date than recommended. The agency head may appeal such a decision
to the President through the National SecurityAdvisor.
(4) File series exemptions approved by the President prior to December
31,2008,shall remalnvalidwithout any additional agency actionpending
Panel review by the later of December 31, 2010, or December 31 of
the year that is lOyears from the date of previous approval.
(d) ThefollowIng provisions shall apply tothe onsetofautomatlcdeclasslflcatlon:
(1) Classified records within an Integral file block, as defined in this
order, that are otherwise subject to automatic declassification under this
section shall not be automatically declassified until December 31 of the
year that is 25 years from the date of the most recent record within
the file block.

23329

71^

Federal Reglster/Vol. 75, No. 2/Tuesday, January 5, 2010/PresIdential Documents
(2) After consultation with the Director of the National Declassification
Center (the Center) established by section 3.7 of this order and before
the records are subject to automatic declassification, an agency head or
senloragency offlclalmay delay automatic declassification f o r u p to five
additional years for classified information contained In media that make
arevlewforposslbledeclassiflcatlonexemptlonsmoredlfflcultor costly.
(3) Other than for records that are properly exempted from automatic
declassification, records containing classified Information that originated
with other agencies orthe disclosure o f w h i c h would affect the Interests
or activities of other agencies with respect to the classified Information
and could reasonably be expectedtofallunder one or more of the exemptions In paragraph (b) of this section shall be Identified prior to the
onset of automatic declassification for later referral to those agencies.
(A) The Information of concern shall be referred by the Center established
by section 3.7 of this order, or by the centralized facilities referred to
In section 3.7(e) of this order, In a prioritized and scheduled manner
determined by the Center.
(B) If an agency falls to provide a final determination on a referral
made by the Center withlnlyear of referral,or by the centralized facilities
referred to In section 3.7(e) of this order within 3 years of referral, Its
equities In the referred records shall be automatically declassified.
(C) Ifany disagreement arlsesbetweenaffectedagenciesandtheCenter
regardIngthereferralrevIewperIod,theDIrectoroftheInformatIonSecu
rity Oversight Office shall determine the appropriate period of review
of referred records.
(D) Referrals Identified prior to the establishment of the Center by section
3.7 of this order shall be subject to automatic declassification only In
accordance with subparagraphs(d)(3)(A)^(C) of this section.
(4) After consultationwiththe Director of the Information Security Over
sight Office, an agency head may delay automatic declassification for
up to 3 years from the date ofdiscovery of classified records that were
Inadvertently not revlewedprlor tothe effective date of automatlcdeclasslflcatlon.
(e) Information exempted from automatic declassification under this section
shall remain subject to the mandatory and systematic declassification review
provisions of this order.
(f) TbeSecretary of Stateshalldetermlne whentheUnltedStatessbould
commence negotiations with the appropriate officials ofaforeign government
or International organization of governments to modify any treaty or International agreement that requires the classification of Informatloncontalned
In records affected by this section for a period longer than 25 years from
the date of its creation, unless the treaty or International agreement pertains
to Informatlonthatmay otherwiseremalnclasslfledbeyond 25 yearsunder
this section.
(g) TheSecretaryof Energy shalldetermlnewhen Information concerning
foreign nuclear programs that was removed from the Restricted Data category
In order to carry out provisions of the National Security Act of 1047, as
amended, maybedeclasslfied. Unlessotherwisedetermlned, such informa
tion shall be declassified when comparable Information concerning the
United States nuclear program Is declassified.
(h) Not later than3yearsfromthe effective date of this order, all records
exempted from automatic declassification under paragraphs (b) and (c) of
this section shall be automatically declassified on December 31 o f a year
that Is no more than 50 years from the date of origin, subject to the following:
(1) Records that contain Information the release o f w h i c h should clearly
and demonstrably be expected to reveal the following are exempt from
automatic declassification at 50 years:

23330

FederalReglster/Vol. 75, No. 2/Tuesday, January 5, 2010/PresidentIal Documents

717

(A) theldentltyofaconfldentlal human source orahuman Intelligence
source; or
(B) key design concepts of weapons of mass destruction.
(2) In extraordinary cases, agency heads may, within 5 years ofthe onset
ofautomatIcdeclassIfIcatIon,proposetoexemptaddItIonalspecIfIcInformatlon from declassification at 50 years.
(3) Records exempted from automatic declassification under this paragraph
shall be automatically declassified on December 31 of a year that Is no
morethan 75 yearsfromthedateoforlglnunless an agencyhead, within
5 yearsofthatdate,proposesto exempt specific Information fromdeclasslflcationat 75 yearsandtheproposal Isformally approvedby thePanel.
(I) Speclficrecords exempted fromautomatic declassification prior to the
establishment of the Center described In section 3.7 of this order shall
be subject to the provisions of paragraph (h) ofthis section In a scheduled
and prioritized manner determined by the Center.
(j) At leastlyear before Information is subject to automatic declassification
under this section, an agency head or senior agency official shall notify
the Director of the Information Security Oversight Office, serving as Executive
Secretary of thePanel, of any speclflclnformationthat theagency proposes
to exempt from automatic declassification under paragraphs (b) and (h)
ofthis section.
(1) The notification shall Include:
(A) a detailed description of the Information, either by reference to
Informatlonlnspeclflcrecords or Inthe formof a declasslflcatlongulde;
(B) an explanation of why the Information should be exempt from
automatic declasslflcationandmustremalnclasslfled f o r a longer period
of time; and
(C) a specific date or a specific and Independently verifiable event
for automatlcdeclassificatlonof specific records thatcontalnthelnformatlon proposed for exemption.
(2) The Panel may direct the agency not to exempt the Information or
to declassify It at an earlier date than recommended. An agency head
may appeal suchadeclslon to the President throughthe National Security
Advisor. The Information will remain classified while such an appeal
Is pending.
(k) For Information In a file series of records determined not to have
permanent historical value, the duration of classification beyond 25 years
shall be the same as the disposition (destruction) date of those records
In each Agency Records Control Schedule or General Records Schedule,
although the duration of classification shallbe extended If the record has
been retained for business reasons beyond the scheduled disposition date.
Sec.3.^.S^s^^^o^^c^^^^oss^^^^o^^o^^^v^^^^.
(a) Each agency that has originated classified Informatlonunder this order
or Its predecessors shall establish and conduct a program for systematic
declassification review for records of permanent historical value exempted
from automatic declassification under section 3.3 of this order. Agencies
shall prioritize their review of such records In accordance with priorities
established by the Center.
(b) The Archivist shall conduct a systematic declassification review program for classified records:
(1) accessioned Intothe National Archives; (2) transferredtothe Archivist
pursuant to 44 U.S.C. 2203; and (3) for which the National Archives
serves as the custodian for an agency or organization that has gone out
of existence.
Sec.3.5.^on^o^or^^^^^oss^^^^o^^on^^^^^^^.
(a) Except as provided In paragraph (b) of this section, all Information
classlfiedunderthls order or predecessor orders shall be subject toarevlew
for declassification by the originating agency If:

23331

718

FederalReglster/Vol 75, No. 2/Tuesday, January 5, 2010/PresIdentIalDocuments
(1) the request forarevlewdescrlbes the document or materlalcontalning
the Information with sufficient specificity to enable the agency to locate
It withareasonable amount of effort;
(2) the document or material containing the Information responsive to
the request Is not contained within an operational file exempted from
search and review, publication, and disclosure under 5 U.S.C. 552 in
accordance with law; and
(3) the Information Is not the subject of pending litigation.
(b) Information originated by the incumbent President or the Incumbent
Vice President; tbe Incumbent President'sWhIte House Staff or the Incumbent
Vice President's Staff; committees, commissions, or boards appointed by
the incumbent President; or other entitles within the Executive Office of
the President that solely advise and assist the Incumbent President Is exempted from the provisions of paragraph (a) of this section.However,the Archivist
shall have the authority to review, downgrade, and declassify papers or
records of former Presidents and Vice Presidents under the control of the
Archivist pursuant to 44 U S.C 2107, 2111, 2111 note, or 2203 Review
procedures developed by the Archivist shall provide for consultation with
agencleshavlngprlmary subject matterinterestandshallbeconsistent with
the provisions of applicable laws or lawful agreements that pertain to the
respective Presidential papers or records. Agencies with primary subject
matter Interest shall be notified promptly of the Archivist's decision. Any
final decision by the Archivist may be appealed by the requester or an
agency to tbe Panel. The Information shall remain classified pending a
prompt decision on tbe appeal.
(c) Agenclesconductlngamandatory revlewfordeclasslflcatlon shall declassify Information that no longer meets the standards for classification
under this order. They shall release this Information unless withholding
Is otherwise authorized and warranted under applicable law.
(d) If an agency has reviewed the requested Information for declassification
within the past 2 years, the agency need not conduct another review and
may Instead inform tbe requester of this fact andthe priorrevlew decision
and advise the requester of appeal rights provided under subsection (e)
of this section.
(e) In accordance with directives Issued pursuant to this order, agency
heads shalldevelopprocedurestoprocessrequestsfor the mandatory review
of classified Information. These procedures shall apply to Information classified under this or predecessor orders. They also shall provide a means
foradmlnistratlvely appeallnga denial of amandatory revlewrequest, and
for notifying the requester of the right to appeal a final agency decision
to the Panel.
(f) After consultation with affected agencies, the Secretary of Defense
shall develop special procedures forthe review of cryptologic Information;
the Director of National Intelligence shall develop special procedures for
the review of information pertaining to intelligence sources, methods, and
actlvitles;andthe Archivist shall developspeclalproceduresforthereview
of Information accessioned Into the National Archives.
(g) Documents required to be submitted for prepubllcatlonrevlewor other
administrative process pursuant to an approved nondisclosure agreement
are not covered by this section.
(h) This section shall not apply to any request for a review made to
an element of the Intelligence Community that Is made by a person other
than an individual as that term Is defined by 5 U.S.C. 552a(a)(2), or by
aforeign government entity or any representative thereof.
Sec. 3.0. ^^o^^ss^n^ .^^^^^^^s on^ ^^v^^^^^^. Notwithstanding section 4.1(1)
of this order, in response to a request for information under the Freedom
of Information Act, the Presidential Records Act, the Privacy Act of 1074,
or the mandatory review provisions of this order:

23332

Federal Reglster/Vol. 75, No. 2/Tuesday, January 5, 2010/PresidentIal Documents

710

(a) An agency may refuse to confirm or deny the existence or nonexistence
of requested records whenever the fact of their existence or nonexistence
Is itself classified under this order or Its predecessors.
(b) When an agency receives any request for documents In Its custody
that contain classified Information that originated with other agencies or
the disclosure of which would affect the Interests or activities of other
agencies with respecttothe classifiedinformation, orldentlfles such documents In the process of Implementing sections 3.3 or 3.4 of this order,
It shall refer copies of any request and the pertinent documents to the
originating agency for processing and may,after consultationwiththe originating agency. Inform any requester of the referral unless such association
is Itself classified under this order or its predecessors. In cases In which
the originating agency determines Inwritlngthataresponse under paragraph
(a) of this section is required, the referring agency shall respond to the
requester In accordance with that paragraph.
(c) Agencies mayextendtheclasslflcationof Information In records deter
mined not to have permanent historical value or nonrecord materials, including artifacts, beyond the time frames established in sections 1.5(b) and
2.2(f) ofthis order,provided:
(1) the specific Informatlonhasbeen approved pursuant to section 3.3(j)
of this order for exemption from automatic declassification; and
(2) the extension does not exceed the date established In section 3.3(j)
of this order.
Sec. 3.7. ^o^^ono^ .O^c^o^s^^'^o^^on ^^n^^r^. (a) There Is established within
the National ArchlvesaNatlonal Declassification Center to streamline declassification processes, facilitate quality-assurance measures, and implement
standardized training regarding the declassification of records determined
tohave permanenthlstorical value. There shallbeaDIrector of the Center
who shall be appointed or removed by the Archivist In consultation with
the Secretaries of State, Defense, Energy, and Homeland Security, the Attorney General,and the Director of National Intelligence.
(b) Under theadmInIstratIonoftbeDIrector,theCentershaJIcoordInate:
(1) timely andappropriateprocesslngof referrals Inaccordance wlthsectlon 3.3(d)(3) of this order for accessioned Federal records andtransferred
presidential records.
(2) general Interagency declassification activities necessary to fulfill the
requirements of sections 3.3 and 3.4of this order;
(3) the exchange among agencies of detailed declassification guidance
to enable the referral of records In accordance with section 3.3(d)(3) of
this order;
(4) the development of effective, transparent, and standard declassification
work processes, training, and quality assurance measures;
(5) the development of solutions to declassification challenges posed by
electronic records, special media, and emerging technologies;
(6) the linkage and effective utilization of existing agency databases and
the use of new technologies to document and make public declassification
revlewdeclsions and supportdeclasslflcation activities under thepurvlew
of the Center; and
(7) storageandrelatedservIces,onareImbursable basis,for Federal records
containing classified national security Information.
(c) Agency headsshallfullycooperate withthe Archivist Intheactlvltles
of the Center and shall:
(1) provide theOIrectorwIthadequateandcurrent declasslflcatlonguldance to enable thereferralof records Inaccordance withsectlon 3.3(d)(3)
ofthis order; and
(2) upon request o f t h e Archivist, assign agency personnel to the Center
who shall be delegated authority by the agencyheadto review and exempt

23333

720

Federal Reglster/Vol. 75, No. 2/Tuesday, January 5, 2010/PresIdentIal Documents
or declassify Informatlonorlglnatedby their agency contained Inrecords
accessioned Into the National Archives, after consultation with subject
matter experts as necessary.
(d) The Archivist, In consultation withrepresentatlvesof the participants
In the Center and after Input from the general public, shall develop priorities
for declassification activities under the purview of the Center that take
Into account the degree of researcher Interest and the likelihood of declassification.
(e) Agency heads may establish such centralized facilities and Internal
operations to conduct Internal declassification reviews as appropriate to
achieve optimized records management and declasslflcationbuslness processes. Once established, all referral processing of accessioned records shall
take place at the Center, and such agency facilities and operations shall
be coordinated with the Center to ensure the maximum degree of consistency
Inpollcles andprocedures that relatetorecordsdetermlnedtohavepermanent historical value.
(f) Agency headsmay exempt fromautomatic declasslficatlonor continue
the classification of their own originally classified Informationunder section
3.3(a) of this order except that in the case of the Director of National
Intelligence, the Director shall also retain such authority with respect to
the Intelligence Community.
(g) The Archivist shall, In consultation withthe Secretaries of State, De
fense, Energy, and Homeland Security, the Attorney General, the Director
of National Intelligence, the Director of the Central Intelligence Agency,
and the Director o f t h e Information Security Oversight Office, provide the
National Security Advisor with a detailed concept of operations for the
Center and a proposed Implementing directive under section 5.1 of this
order that reflects the coordinated views of the aforementioned agencies.
PART ^SAFEGUARDING
Sec.^.l.^^n^^o^^^s^r^^^^^onsonB^cc^^s.
(a) A person may have access to classified Information provided that:
(1) a favorable determination of eligibility for access has been made by
an agency head or the agency head'sdeslgnee;
(2) the person has signed an approved nondisclosure agreement; and
(3) the person hasaneed-toknow the Information.
(b) Every person who has met the standards for access to classl^edlnformatloninparagraph(a) ofthis sectionshall receive contemporaneous training
on the proper safeguarding of classified information and on tbe criminal,
civil, and administrative sanctions that may be Imposed on an Individual
who falls to protect classified Information from unauthorized disclosure.
(c) Anofflclal oremployeeleavlngagency servlcemay notremoveclasslfled Information from the agency's control or direct that Information be
declassified In order to remove It from agency control.
(d) Classified Information may not be removed from official premises
without proper authorization.
(e) Persons authorized to disseminate classified Information outside the
executlvebranchshallensuretheprotectlon of theinformation Inamanner
equivalent to that provided within the executive branch.
(f) Consistent with law, executive orders, directives, and regulations, an
agency head or senior agency official or, with respect to the Intelligence
Community, the Director of National Intelligence, shall establish uniform
procedures to ensure that automated Information systems, Including networks
and telecommunications systems, that collect, create, communicate, compute,
disseminate, process, or store classified Information:
(1) prevent access by unauthorized persons;
(2) ensure the Integrity of the Information; and

23334

FederalReglster/Vol. 75, No. 2/Tuesday, January 5, 2010/Presidential Documents

721

(3)to the maximum extent practicable,use:
(A) common Information technology standards, protocols, and Interfaces
that maximize the availability of, and access to, the Information In a
form and manner that facilitates Its authorized use; and
(B) standardized electronic formats to maximize the accessibility of Information to persons who meet the criteria set forth In section 4.1(a) of
this order.
(g) Consistent with law,executive orders,directives,and regulations,each
agency head or senior agency official, or with respect to the Intelligence
Community, the Director of National Intelligence, shall establish controls
to ensure that classifiedinformation Is used, processed, stored, reproduced,
transmitted, and destroyed under conditions that provide adequate protection
and prevent access by unauthorized persons.
(h) Consistent with directives Issued pursuant to this order, an agency
shall safeguard foreign government Informationunder standards that provide
adegreeof protection atleastequivalenttothatrequlredby the government
or International organization ofgovernmentsthat furnlshedtheinformation.
When adequate to achieve equivalency, these standards may be less restrictive
tbanthe safeguarding standardsthatordlnarllyapplytoU.S. "Confidential"
Information, Including modified handling and transmission and allowing
access to Individuals with a need-to-know who have not otherwise been
cleared for access to classified information or executed an approved non
disclosure agreement.
(1) (l)ClassIfIed Information originating In one agency may be disseminated
toanother agency or U.S. entity by any agency to which It hasbeenmade
available without the consent of tbe originating agency, as long as the
criteria for access under section 4.1(a) of this order are met, unless the
originating agency has determined that prior authorization Is required for
such dissemination and has marked or Indicated such requirement on the
medium containing the classified Information In accordance with Implementing directives Issued pursuant to this order.
(2) Classlfiedlnformatlonorlglnatlnglnoneagency may be disseminated
by any other agency to which It has been made available to a foreign
government In accordance with statute, this order, directives Implementing
this order, direction of the President, or with the consent of the originating
agency. For the purposes of this section, "foreign government" Includes
any element of a foreign government, or an International organization
ofgovernments, or any element thereof.
(3) Documents created prior to the effective date of this order shall not
be dissemlnatedoutslde any other agency to which they havebeenmade
available without the consent ofthe originating agency. An agency head
or senloragency offlclalmay walvethlsrequlrementforspeclfic Information that originated within that agency.
(4) For purposes of this section, the Department of Defense shall be considered one agency, except that any dissemination of Information regarding
Intelligence sources,methods,oractivltlesshallbe consistent withdirec
fives Issued pursuant tosectlon0.2(b)of this order.
(5) Prior consent ofthe orlglnatlngagency Is not required whenreferring
records for declassification review that contain Information originating
In more than one agency.
Sec.^.2l^^^^^r^^^u^^on^on^^o^^.
(a) The head of each agency shall establish procedures in accordance
with applicable law and consistent with directives Issued pursuant to this
order to ensure that classified Information Is accessible to the maximum
extent possible by Individuals who meet the criteria set forth In section
4.1(a) ofthis order.
(b) In an emergency, when necessary to respond to an Imminent threat
to life or In defense of the homeland, the agency head or any designee

23335

722

FederalRegl^ter/Vol. 75, No. 2/Tuesday, January 5, 2010/Presidential Documents
may authorize the disclosure of classified information (Including Information
marked pursuant to section 4.l(i)(l)of this order) to an Individual or Individuals who are otherwise not eligible for access. Such actions shallbe taken
only Inaccordance with directives Implementlngthisorderandany procedure Issued by agencies governing the classified Information, which shall
be designed to minimize the classified Information that Is disclosed under
these circumstances andthenumber of individuals whorecelvelt.Information disclosed under this provision or Implementing directives and proce
dures shall not be deemed declassified as a result of such disclosure or
subsequentuseby areclplent. Suchdisclosures shallbereportedpromptly
tothe originator of theclassifledlnformatlon. For purposes ofthis section,
the Director of National Intelligence may Issue an Implementing directive
governing the emergency disclosure of classified Intelligence Information.
(c) Each agency shall update, at least annually, the automatic, routine,
or recurrlngdistrlbutlon mechanism for classified Informatlonthatltdlstrlbutes. Recipients shall cooperate fully with distributors who are updating
distribution lists and shall notify distributors whenever a relevant change
In status occurs.
Sec. ^.3. S^^^^o^ A^c^^sPr^o^^oms. (a) Establishment of special access programs. Unless otherwise authorized by the President, only the Secretaries
of State, Defense, Energy, and Homeland Security, the Attorney General,
and the Director of National Intelligence, or the principal deputy of each,
may createaspeclalaccessprogram. Forspeclalaccessprogramspertaining
to Intelligence sources, methods, and activities (but not Including military
operational,strategic,andtacticalprograms),thlsfunctlon shallbe exercised
by the Director of National Intelligence. These officials shall keep the number
ofthese programs at an absolute minimum, and shall establish them only
when the program Is required by statute or upon a specific finding that:
(1) the v^ulnerablllty of, or thr^eat to, specific Information Is exceptional;
and
(2) the normal criteria for determining eligibility for access applicable
to Information classified at the same level are not deemed sufficient to
protect the Information h^om unauthorized disclosure.
(b)RequIrements and limitations.
(1) Special access programs shall be limited to programs in which the
number of persons who ordinarily will have access will be reasonably
small and commensurate withthe objective of providing enhancedprotec
tion for the Information Involved.
(2) Each agency head shallestabllshandmalntainasystemofaccounting
for special access programs consistent with directives Issued pursuant
to this order.
(3) Special access programs shall be subject to the oversight program
established under section 5.4(d) of this order. In addition, the Director
of the Information Security Oversight Office shall be afforded access to
these programs, In accordance with the security requirements of each
program, in order to perform the functions assigned to tbe Information
Security Oversight Office under this order. An agency head may limit
access to a special access program to tbe Director of the Information
Security Oversight Office and no more than one other employee of the
Information Security Oversight Office or,for special accessprogramsthat
are extraordinarily sensitive and vulnerable, to the Director only.
(4) The agency head or principal deputy shall review annually each special
access program to determine whether It continues to meet the requirements
of this order.
(5) Upon request,an agency head shall brief the National SecurityAdvisor,
or a designee, on any or all of the agency's special access programs.
(6) Forthe purposes of this section, the term "agency head" refers only
to the Secretaries of State, Defense, Energy, and Homeland Security, the

23336

FederalReglster/Vol. 75, No. 2/Tuesd8y,January 5, 2010/PresIdential Documents

72^

Attorney General, and the Director of National Intelligence, or the principal
deputy of each.
(c) Nothing in this order shall supersede any requirement made by or
underlOUS.C.llO.
Sec. 4.^. B^c^^^s ^^.^^s^or^^co^^^s^or^c^^^s on^ ^^^o^n ^orm^r ^o^^r^nm^n^
P^^sonn^^.
(a) The requirement In section 4.l(a)(3)of this order that access to classified
Information may be granted only to Individuals who have a need-to-know
the Information may be waived for persons who:
(1) are engaged in historical research projects;
(2) previously have occupied senior policy making positions to which
they were appointed or designated by the President or the Vice President;
o^
(3) served as President or Vice President.
(b) Waivers under this section may be granted only If the agency bead
or senior agency official of the originating agency:
(1) determines In writing that access is consistent with the Interest of
the national security;
(2) takes appropriate steps toprotectclasslfled Information fromunauthor
Ized disclosure or compromise, and ensures that tbe Information Is safe
guarded Inamanner consistent with this order; and
(3) llmlts the access grantedtoformerPresIdential appointees or designees
and Vice Presidential appointees or designees to Items that the person
originated, reviewed, signed, or received while serving as a Presidential
or Vice Presidential appointee or designee.
PART ^^IMPLEMENTATION AND REVIEW
Sec. 5.1. Pro^rom ^^r^^^^on. (a) The Director of the Information Security
Oversight Office, under the direction o f t h e Archivist and in consultation
with the National Security Advisor, shall Issue such directives as are nec
essary to Implement this order. These directives shall be binding on tho
agencies.DIrectlvesIssued by the Director of theinformation Security Oversight Office shall establish standards for:
(1) classlflcatlon,declassification,and marking principles;
(2) safeguarding classified information,which shallpertain to the handling,
storage, distribution, transmittal, and destruction of and accounting for
classifiedinformation;
(3) agency security education and training programs;
(4) agency self-Inspection programs; and
(5) classIfIcatIon and declassification guides.
(b) The Archivist shalldelegatethe implementatlonand monitoring func
tions ofthis program to the Director ofthe Information Security Oversight
Office
(c) The Director of National Intelligence,after consultationwiththe heads
of affected agencies and the Director ofthe Information Security Oversight
Office, may Issue directives to implement this order with respect to the
protection of intelligence sources, methods, and activities. Such directives
shall be consistent with this order and directives Issued under paragraph
(a) ofthis section.
Sec. 5.2. ^n^ormo^^onS^^^^^^^^^^er^s^^^^^O^c^. (a) There Is established within
the National Archives an Information Security Oversight Office. The Archivist
shallappoint theDIrector of thelnformatlonSecurlty Oversight Office, subject to the approval of the President.
(b) Under the direction of the Archivist, acting In consultation with the
National SecurityAdvisor,the Director of the Information Security Oversight
Office shall:
(l)develop directives for the implementation of this order;

23337

72^

Federal Reglster/Vol. 75, No. 2/Tuesday, January 5, 2010/PresIdentIalDocuments
(2) oversee agency actions to ensure compliance with this order and Its
Implementing directives;
(3) review and approve agency implementing regulations prior to their
Issuanceto ensuretheir consistency withthisorderanddlrectlveslssued
under section 5.1(a) ofthis order;
(4) have the authority to conducton-site reviews of each agency'sprogram
establlshedunderthls order, and torequire of eachagency those reports
and Information and other cooperation that may be necessary to fulfill
Its responsibilities. If granting access to specific categories of classified
Information wouldposeanexceptlonalnatlonalsecurlty risk, theaffected
agency head or the senior agency official shall submltawrltten justification
recommendlngthedenlalof access to thePresIdentthroughtheNatlonal
Security Advisor within 00 days of the request for access. Access shall
be denied pending the response;
(5) review requests for original classification authority from agencies or
officials not grantedorlglnalclasslflcatlonauthorltyand,lfdeemed appropriate, recommend Presidential approval through the National Security
Advisor;
(6) conslderandtakeactlon oncomplalntsandsuggestlonsfrompersons
within or outside the Government with respect to the administration of
the program established under this order;
(7) have the authority to prescribe, after consultation with affected agencies,
standardlzatlonof forms or proceduresthat wlllpromotethelmplementatlon of the program established under this order;
(8) report at least annually to the President on the Implementation of
this order; and
(0) conveneandchalr Interagency meetlngsto discussmatterspertalning
to the program established by this order.
Sec.5.3.^n^^^o^^nc^S^^ur^^^^^^oss^^co^^onA^^^o^sPon^^.
(a) Establishment and administration.
(1) There Is established an Interagency Security Classification Appeals
Panel. The Departments of State, Defense, and Justice, the National Archives,the Office of the Director of National Intelligence,and the National
Security Advisor shalleachberepresentedbyasenlor-level representative
who Is a full tlme or permanent part tlme Federal officer or employee
designated to serve as a member of the Panel by tbe respective agency
head. The President shall designate a Chair from among the members
ofthe Panel.
(2) Additionally, theDIrectorof the Centrallntelligence Agency may ap
point 8 temporary representative who meets the criteria In paragraph
(8)(l)of this section to participate asavoting member In all Panel deliberations and associated support activities concerning classified Information
originated by the Central Intelligence Agency.
(3) A vacancy on tbe Panel shall be filled as quickly as possible as
provided In paragraph (8)(l)of this section.
(4) The Director of the Information Security Oversight Office shall serve
as the Executive Secretary of the Panel. The staff of the Information
Security Oversight Office shall provide program and administrative support
for the Panel.
(5) The members and staff of the Panel shall be required to meet eligibility
for access standards In order to fulfill the Panel'sfunctlons.
(0) The Panel shall meet at the call of the Chalr.The Chair shall schedule
meetings as may be necessary for the Panel to fulfill Its functions in
atlmely manner.
(7)TheInform8tIonSecurIty Oversight Offlceshall Includelnltsreports
tothePresidentasummaryofthePanel'sactlvItles.

23338

Federal Reglster/Vol. 75, No 2/Tuesd8y, January 5, 2010/PresidentIal Documents

728

(b) Functions. The Panel shall:
(1) declde on appealsby persons who have flledclasslflcatlonchallenges
under section 1.8 ofthis order;
(2) approve, deny, or amend agency exemptions from automatic declassification as provided In section 3.3 ofthis order;
(3) decide on appeals by persons or entities who have filed requests
for mandatory declassification review under section 3.5 of this order;
and
(4) appropriately Inform senior agency officials and the public of final
Panel decisions on appeals under sections 1.8 and 3.5 of this order.
(c) Rules and procedures. The Panel shall Issue bylaws, which shall be
publlshedinthe^^^^^o^^^^^^^^^r. Thebylaws shall establish therules and
proceduresthatthePanelwillfollowinaccepting,considering, and Issuing
decisions on appeals. The rules and procedures ofthe Panel shall provide
that the Panel will consider appeals only on actions In which:
(1) the appellant has exhausted his or her admlnlstratlveremedles within
the responsible agency;
(2) there Is no current action pending on the Issue within the Federal
courts; and
(3) the Information has not been the subject of review by the Federal
courts or the Panel within the past2years.
(d) Agency heads shall cooperate fully with the Panel so that It can
fulfill Its functionslnatlmely and fully Informed manner. ThePanelshall
reportto thePresIdentthroughtheNatlonal Security Advlsorany Instance
In which It believes that an agency head Is not cooperating fully with
thePanel.
(e) ThePanel Is established for the solepurpose of advising and assisting
the President In the discharge of his constitutional and discretionary authority
to protect the national security of the United States. Panel decisions are
committed to the discretlonof thePanel, unless changedby thePresIdent.
(f) An agency head may appeal a decision of the Panel to the President
throughtheNatlonalSecurltyAdvIsor.Thelnformatlon shall remalnclassi
fled pendingadeclslon on the appeal.
Sec.5.4. ^^n^^o^^^s^ons^'^^^^^^^^^^.Heads of agencies thatorlglnate or handle
classified information shall:
(a) demonstrate personal commitment and commit senior management
to the successful Implementation of the program established under this
order;
(b) commit necessary resources to the effective Implementation of the
program established under this order;
(c) ensure that agency records systems are designed and maintained to
optlmlzetheapproprlatesharlngandsafeguardingof classifiedinformation,
and to facilitate Its declassification under the terms of this order when
It no longer meets the standards for continued classification; and
(d) deslgnateasenlor agency official to direct and administer the program,
whose responsibilities shall Include:
(1) overseeing the agency'sprogram established under this order,provIded
anagency head may deslgnateaseparateofflclaltooverseespeclalaccess
programs authorized under this order. This official shall provide a full
accounting of the agency'sspeclal access programs at least annually;
(2) promulgating Implementing regulations, which shall be published In
the^^^^^o^^^^^s^^rto the extent that they affect members of thepubllc;
(3) establishing and maintaining security education and training programs;
(4) establishing and maintaining an ongoing self-Inspection program, which
shall Includetheregular reviews of representative samples of the agency's

23339

720

Federal Reglster/Vol. 75, No.2/Tuesday,January5,2010/PresIdential Documents
original and derivative classification actions, and shall authorize appro
priate agency officials to correct misclasslficatlon actions not covered by
sections 1.7(c) and 1.7(d) of this order; and reporting annually to the
Director of theinformation Security Oversight Office onthe agency'sself
Inspection program;
(5) establishing procedures consistent with directives Issued pursuant to
this order to prevent unnecessary access to classified Information, Including
proceduresthat:
(A) require thataneed for access to classified Information be established
before Initiating administrative clearance procedures; and
(B) ensure that thenumber of personsgranted access to classified infor
matlonmeets themlssion needs of theagency whilealso satlsfylngoperatlonal and security requirements and needs;
(0) developing speclalcontlngencyplansfor the safeguardlngofclasslfled
Information used In or near hostile or potentially hostile areas;
(7) ensuring that the performance contract or other system used to rate
civilian or military personnel performance Includes the designation and
management of classified Information as a critical element or Item to
be evaluated In the rating of:
(A) original classification authorities;
(B) securlty managers or security specialists; and
(C) all other personnel whose duties significantly Involve the creation
or handling of classified Information, Including personnel who regularly
apply derivative classification markings;
(8) accounting for the costs associated with the Implementation of this
order, whichshallbereportedtotheDIrector of theinformation Security
Oversight Office for publication;
(0) assigning In a prompt manner agency personnel to respond to any
request, appeal, challenge, complaint, or suggestion arising out of this
order that pertains to classified Information that originated Inacomponent
of the agency that no longer exists and for which there Is no clear successor
in function; and
(10) establishing a secure capability to receive Information, allegations,
or complaints regarding over-classlflcatlon or Incorrect classification within
theagency andtoprovldeguldancetopersonnel onproper classification
as needed.
Sec. 5.5. Sonc^^on^. (a)If theDIrector of thelnformatlonSecurlty Oversight
Office finds that a violation of this order or Its Implementing directives
has occurred, the Director shall make a report to the head of the agency
or to the senior agency official so that corrective steps, If appropriate, may
betaken.
(b) Officers and employees of the United States Government, and Its
contractors, licensees, certificate holders, and grantees shall be subject to
appropriate sanctions If they knowingly, willfully, or negligently:
(1) dlsclosetounauthorlzedpersonslnformatlonproperlyclasslfledunder
this order or predecessor orders;
(2) classify or continue the classification of Information In violation of
this order or any Implementing directive;
(3) create or contlnueaspeclal access program contrary to the requirements
of this order; or
(4) contravene anyother provision of this order or Its Implementingdlrectives.
(c) Sanctions may Include reprimand, suspension without pay, removal,
termination ofclassification authority, loss or denial of access to classified
Information, or other sanctions In accordance with applicable law and agency
regulation.

23340

Federal Register/Vol 75, No. 2/Tuesday,January 5, 2010/PresidentIal Documents

727

(d) The agencyhead, senloragency official, or other supervisory official
shall, at a minimum, promptly remove the classification authority of any
Individual who demonstrates reckless disregard or a pattern of error In
applying the classification standards of this order.
(e) The agency head or senior agency official shall:
(1) take appropriate and prompt corrective action when a violation or
Infraction under paragraph (b)of this section occurs; and
(2) notify theDIrector of the Information Security Oversight Office when
aviolatlon under paragraph (b)(1),(2),or(3)of this section occurs.
PARTO^GENERALPROVISIONS
Sec. 0.1. ^^^n^^^^ons. For purposes of this order:
(a) "Access"means the abllltyor opportunity to gain knowledge of classi
fled information.
(b) "Agency"me8nsany "Executive agency,"asdefined i n 5 U.S.C. 105;
any "Military department"asdefInedIn5U.S.C. 102; and any other entity
within the executive branch that comes Into the possession of classified
Information.
(c) "AuthorIzedholder"of classified Information means anyonewho satisfies the conditions for access stated In section 4.1(a) of this order.
(d) "Autom8ted Information system" means an assembly of computer hard
ware,software,or firmware conflguredto collect,create,communicate,com
pute, disseminate, process, store, or control data or Information.
(e) "AutomaticdeclassIfIcatIon"means the declasslflcatlonof Information
based solely upon:
(1) the occurrence ofaspeclfic date or event as determined by the original
classification authority; or
(2) the expiration of amaximum time frame for duration ofclassification
established under this order.
(f) "Classification" means the act or process by which Information Is
determined to be classified Information.
(g) "Classification guidance" means any Instruction or source that pre
scribes the classification of specific Information.
(h) "Classification guide" means a documentary form of classification
guidance Issued by an original classification authority that Identifies the
elements of Informatlonregardinga specific subject that must be classified
and establishes the level and duration of classification for each such element.
(I) "Classified national security Information" or "classified Information"
means Information that hasbeen determined pursuant to this order or any
predecessor order to require protectlonagalnst unauthorized disclosureand
Is marked to Indicate its classified status when In documentary form.
(j) "Compilation" means an aggregation of preexisting unclassified items
of Information.
(k) "Confidential source" means any Individual or organization that has
provided, or that may reasonably be expected to provide, Information to
the United States on matters pertaining to the national security with the
expectation that the Information or relationship, or both, are to be held
In confidence.
(I) "Damagetothenational securIty"meansharmto thenatlonal defense
or foreign relations of the United States from the unauthorized disclosure
of Information, taking Into consideration such aspects of the Information
as the sensitivity,value,utility,and provenance ofthat Information.
(m) "DeclassifIcatIon"meanstheauthorIzedchangeInthestatus of Information from classified information to unclassified information.
(n) "Declassification gulde"means written instructions Issued byadeclas
siflcatlon authority that describes the elements of Information regarding

23341

728

FederalReglster/Vol. 75, No. 2/Tuesday, January 5, 2010/PresIdentIal Documents
a specific subject that may be declassified and the elements that must
remain classified.
(0) "Derivative classification" means the incorporating, paraphrasing, restating, or generating In new form Information that Is already classified,
and marking thenewlydeveloped material consistent withthe classification
markings that apply to the source Information. Derivative classification Includes the classification of Information based on classification guidance.
The duplication or reproduction of existing classified Information Is not
derivativeclassification.
(p) "Document"means any recorded Information,regardless of thenature
of the medium or the method or circumstances of recording.
(q) "Downgrading" means a determlnationby a declasslflcatlonauthorlty
that Information classified and safeguarded at a specified level shall be
classified and safeguarded atalower level.
(r) "File series" means file units or documents arranged according to
a filing system or kept together because they relate to a particular subject
or function, result from the same activity, document a specific kind of
transaction,takeapartlcular physical form,orhave some other relationship
arising out of their creation, receipt, or use, such as restrictions on access
or use.
(s) "Foreign government Information"means:
(1) Information provided to the United States Government by a foreign
govemmentor governments,an Internationalorganlzationof governments,
or any element thereof, with the expectation that the Information, the
source of the information, or both, are to be held In confidence;
(2) Information produced by the United States Government pursuant to
or a s a r e s u l t o f a j o i n t arrangement withaforeign govemmentor governments, or an International organization of governments, or any element
thereof, requiring that the Information, the arrangement, or both, are to
be held In confidence; or
(3) information recelvedandtreatedas "forelgngovernment Information"
under the terms ofapredecessor order.
(t) "Information" means any knowledge that can be communicated or
documentary material,regardlessofltsphyslcal former characteristics,that
Is owned by, Is produced by or for, or Is under the control ofthe United
States Govemment.
(u) "Infraction"meansany knowing, willful, ornegllgent actloncontrary
to the requirements of this order or Its Implementing directives that does
not constItutea"vIolatIon,"as defined below.
(v) "Integral file block" means a distinct component of a file series, as
defined In this section, that should be maintained as a separate unit In
order to ensure the Integrity of the records. An Integral file block may
consist of a set of records covering either a specific topic or a range of
time, such as a Presidential administration or a 5 year retirement schedule
within a specific file series that Is retired from active use as a group.
For purposes of automatic declassification. Integral flleblocks shallcontain
only records dated within 10 years of the oldest record In the file block.
(w)"lntegrlty"means the state thatexists when Information Isunchanged
from Its source and has not been accidentally or Intentionally modified,
altered, or destroyed.
(x) "Intelligence" Includes foreign Intelligence and counterintelligence as
defined by Executive Order 12333 of December 4, 1081, as amended, or
byasuccessor order.
(y) "Intelligenceactlvltles" meansallactlvltlesthatelementsof theintelligence Community areauthorlzedtoconductpursuanttolaworExecutive
Order 12333,as amended,orasuccessor order.

23342

Federal Reglster/Vol. 75, No. 2/Tuesday, January 5, 2010/PresIdentialDocuments

720

(z) "Intelligence Cormnunlty" means an element or agency of the U.S.
Govemment Identlfledlnordeslgnatedpursuantto section 3(4) of theNational Security Act of 1047, as amended, or section 3.5(h) of Executive
Order 12333, as amended.
(aa) "Mandatory declassification review" means the review for declasslfica
tion of classified Information In response to a request for declassification
that meets the requirements under section 3.5 of this order.
(bb) "Multlplesources" means twoormoresourcedocuments,classification guides,oracombinatlon ofboth.
(cc) "National security" means the national defense or foreign relations
of the United States.
(dd) "Needtoknow" meansa determination within the executlvebranch
In accordance with directives Issued pursuant to this order thataprospectlve
recipient requires access to specific classified Information In order to perform
or assist Inalawful and authorized governmental function.
(ee) "Network" means a system of two or more computers that can ex
change data or information.
(ff) "Original classification" means an Initial determination that Informa
tion requires, In the interest of the national security, protection against
unauthorized disclosure.
(gg) "Original classification authority" means an Individual authorized
In writing, eltherby the President, the Vice President, orby agency beads
or other officials designated by the President, to classify Information In
the first Instance.
(hh) "Records" means the records of an agency and Presidential papers
orPresIdentlal records,asthosetermsaredefinedlntltle 44,UnitedStates
Code, Including those created or maintained by a government conb^actor,
licensee, certificate holder, or grantee that are subject to the sponsoring
agency's control under the terms of the contract, license, certificate, or
grant.
(II) "Records having permanent historical value" means Presidential papers
or Presidential records and the records of an agency that the Archivist
has determined shouldbe malntainedpermanently Inaccordance with title
44, United States Code.
(jj) "Records management" means the planning, controlling, directing, organizing, training, promoting, and other managerial activities Involved with
respect to records creation, records maintenance and use, and records disposition Inorder to achleveadequateandproperdocumentatlonofthepollcles
and transactions of the Federal Government and effective and economical
management of agency operations.
(kl^) "Safeguarding" means measures and controls that are prescribed to
protect classified Information.
(11) "Self-Inspection" means the Internal review and evaluation of Indi
vidua! agency activities and the agency as a whole with respect to the
Implementatlonof the programestabllshedunder this order and Its Implementing directives.
(mm)"SenIoragencyoffIcIal"means the offlcialdeslgnated by the agency
headunder section 5.4(d) of this order to direct and administer the agency's
program under which Information Is classified, safeguarded, and declassified.
(nn)"Sourcedocument"meansanexIstIngdocument that contains classi
fled Information that Is Incorporated, paraphrased, restated, or generated
In new form Intoanew document.
(oo) "Speclalaccessprogram"meansaprogramestabllshedforaspeclflc
class of classified Informatlonthat Imposes safeguarding and access requirements that exceed those normally required for Information at the same
classification level.

23343

7^0

FederalReglster/Vol. 75,No. 2/Tuesday, January 5, 2010/PresIdential Documents
(pp) "Systematic declassification review" means the review for declasslfica
tion of classified Information contained in records that have been determined
by the Archivist to have permanent historical value In accordance with
title 44, United States Code.
(qq) "Telecommunications" means thepreparatlon, transmission, or communication of Information by electronic means.
(rr) "Unauthorized disclosure" meansacommunlcatlon or physical transfer
of classified Information to an unauthorized recipient.
(ss) "U.S. entity" Includes:
(1) State,local,or tribal governments;
(2) State,local,and tribal law enforcement and fireflghting entitles;
(3) publlc health and medical entitles;
(4) regional, state, local, and tribal emergency management entities. Including State Adjutants General and other appropriate public safety entitles;
o^
(5) private sector entitles serving as part of the nation's Critical Infrastmcture/Key Resources.
(tt) "Violation" means:
(1) any knowing, willful, or negligent action that could reasonably be
expectedtoresult In anunauthorlzeddlsclosureof classifiedinformation;
(2) any knowing, willful, or negligent action to classify or continue the
classification of Information contrary to the requirements of this order
or Its Implementing directives; or
(3) anyknowIng,wIllful,or negligent action to create or contlnueaspeclal
access program contrary to the requirements of this order.
(uu) "Weapons of mass destructIon"means any weapon of mass destruction
asdefInedIn50USCl801(p)
Sec. 0.2. ^^n^r^o^Pr^o^^^^^ons. (a) Nothing Inthis order shall supersede any
requlrementmadebyorunderthe Atomic Energy Act of 1054, as amended,
or the National Security Act of 1047, as amended. "Restricted Data" and
"Formerly Restricted Data" shall be handled, protected, classified, downgraded, and declassified In conformity with the provisions o f t h e Atomic
Energy Act of 1054, as amended, and regulations Issued under that Act.
(b) The Director of National Intelligence may, with respect to the Intelligence Community and after consultationwiththe heads of affecteddepartments and agencies. Issue such policy directives and guidelines as the
Director of National Intelligence deems necessary to Implement this order
with respect to the classification and declassification of all Intelligence
and Intelllgence related Information, and for access to and dissemination
o f a l l Intelligence and Intelllgence related Information, both In Its final form
and in the form when Initially gathered. Procedures or other guidance Issued
bylntelllgenceCommunlty element heads shallbein accordance with such
policy directives or guidelines issued by the Director of National Intelligence.
Any suchpollcydlrectlvesor guidelines Issuedby theDIrectorof National
Intelligence shall be In accordance with directives Issued by the Director
of the Information Security Oversight Office under section 5.1(a) of this
order.
(c) The .attorney General, upon request by the head of an agency or
the Director of the Information Security Oversight Office, shall render an
Interpretation of this order with respect to any question arising In the
course of Its administration.
(d) Nothing In this order limits the protection afforded any Information
byother provisions of law,Including the Constitution,Freedomof Information Act exemptions, the Privacy Act of 1074, and the National Security
Act of 1047, as amended. This order Is not Intended to and does not
create any right or benefit, substantive or procedural, enforceable at law

23344

Federal Regl^ter/Vol. 75, No. 2/Tuesday, January 5, 2010/PresidentIal Documents

7^1

b y a p a r t y against the United States, Its departments, agencies, or entitles.
Its officers, employees, or agents, or any other person. The foregoing Is
In addition to the specific provisos set forth In sections 1.1(b), 3.1(c) and
5.3(e)of this order.
(e) Nothing Inthis order shall be construed to obligate actlonor otherwise
affect functions by tbe Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(f) This order shall be Implemented subject to the availability of appropria
tions.
(g) Executive Order 12058 of April 17, 1005, and amendments thereto.
Including Executive Order 13202 of March 25, 2003, are hereby revoked
as of the effective date of this order.
Sec. 0.3. ^^^^^^^^ ^o^^. This order Is effective 180 days from the date
of this order, except for sections 1.7, 3.3, and 3.7, which are effective
Immediately.
Sec. 0.4. Pu^^^co^^on. The Archivist ofthe United States shall publish this
Executive Order In the ^^^^ro^^^^^^^^^r.

THE WHITE HOUSE,
December 29, 2010.
[FR Doc. E9-31418
Filed 1-4-10; 11:15 am|
Billing code 7515-Ol-P

23345

1013
Federal Register

Presidential Documents

Vol. 75, No. 5
Friday, January 8, 2010

Title 3—

Executive Order 13520 of December 29, 2009—Classified National Security Information

The President
Correction

In Presidential document E9-31418 beginning on page 707 In the issue
of Tuesday, January 5, 2010, make the following correction:
On page 731, the date line below the President's signature should read
"December 20, 2009. "

IFR Doc. Cl-2009-31418
Filed 1-6-10: 2:00 pml
Billing Code 1505-01-D

23346

UNITED STATES OF AMERICA
V.

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

Government Motion
to Take Judicial Notice

Enclosure 8
3 August 2012

23347

Page 1 of2
[ 1 0 7 t h Congress P u b l i c Law 40]
[From t h e U.S. Government P r i n t i n g

Office]


[DOCID: f : p u b l 0 4 0 . 1 0 7 ;

[[Page

115

STAT.

224]

P u b l i c Law 107-40
1 0 7 t h Congress
Joint

Resolution

To a u t h o r i z e t h e use o f U n i t e d S t a t e s Armed Forces a g a i n s t t h o s e
r e s p o n s i b l e f o r the recent a t t a c k s launched a g a i n s t the U n i t e d
S t a t e s . « N O T E : Sept. 18, 2001 [ S . J . Res.
23]»
Whereas, on September 11, 2001, a c t s o f t r e a c h e r o u s v i o l e n c e were
c o m m i t t e d a g a i n s t t h e U n i t e d S t a t e s and i t s c i t i z e n s ; and
Whereas, such a c t s r e n d e r i t b o t h n e c e s s a r y and a p p r o p r i a t e t h a t t h e
U n i t e d S t a t e s e x e r c i s e i t s r i g h t s t o s e l f - d e f e n s e and t o p r o t e c t
U n i t e d S t a t e s c i t i z e n s b o t h a t home and a b r o a d ; and
Whereas, i n l i g h t o f t h e t h r e a t t o t h e n a t i o n a l s e c u r i t y and f o r e i g n
p o l i c y o f t h e U n i t e d S t a t e s posed by t h e s e g r a v e a c t s o f v i o l e n c e ;
and
Whereas, such a c t s c o n t i n u e t o pose an u n u s u a l and e x t r a o r d i n a r y t h r e a t
t o t h e n a t i o n a l s e c u r i t y and f o r e i g n p o l i c y o f t h e U n i t e d S t a t e s ;
and
Whereas, t h e P r e s i d e n t has a u t h o r i t y under t h e C o n s t i t u t i o n t o t a k e
a c t i o n t o d e t e r and p r e v e n t a c t s o f i n t e r n a t i o n a l t e r r o r i s m a g a i n s t
t h e U n i t e d S t a t e s : Now, t h e r e f o r e , be i t
R e s o l v e d by t h e Senate and House o f R e p r e s e n t a t i v e s o f t h e U n i t e d
S t a t e s o f A m e r i c a i n Congress assembled, <o f M i l i t a r y F o r c e . 50 USC 1541 n o t e . »
SECTION 1. SHORT TITLE.
T h i s j o i n t r e s o l u t i o n may
M i l i t a r y Force''.

be c i t e d as t h e ~ " A u t h o r i z a t i o n f o r Use

SEC.

OF

2. AUTHORIZATION FOR

USE

of

UNITED STATES ARMED FORCES.

(a) <a u t h o r i z e d t o use a l l n e c e s s a r y and a p p r o p r i a t e f o r c e a g a i n s t t h o s e
n a t i o n s , o r g a n i z a t i o n s , o r p e r s o n s he d e t e r m i n e s p l a n n e d , a u t h o r i z e d ,
c o m m i t t e d , o r a i d e d t h e t e r r o r i s t a t t a c k s t h a t o c c u r r e d on September 11,
2001, o r h a r b o r e d such o r g a n i z a t i o n s o r p e r s o n s , i n o r d e r t o p r e v e n t any
f u t u r e a c t s o f i n t e r n a t i o n a l t e r r o r i s m a g a i n s t t h e U n i t e d S t a t e s by such
n a t i o n s , o r g a n i z a t i o n s or persons.
(b) War

Powers R e s o l u t i o n R e q u i r e m e n t s . —
(1) S p e c i f i c s t a t u t o r y a u t h o r i z a t i o n . — C o n s i s t e n t w i t h
s e c t i o n 8 ( a ) ( 1 ) o f t h e War Powers R e s o l u t i o n , t h e Congress
declares that t h i s section i s intended to c o n s t i t u t e s p e c i f i c
s t a t u t o r y a u t h o r i z a t i o n w i t h i n t h e meaning o f s e c t i o n 5(b) o f

http://www.gpo.gov/fdsys/pkg/PLAW-1 OVpubWO/htmVPLA W-107publ40.htm

8/3/2012

23348

P^ge2of2
the War Powers Resolution.
[[Page 115 STAT. 225]]
(2) A p p l i c a b i l i t y o f other requirements.—Nothing i n t h i s
r e s o l u t i o n supercedes any requirement o f the War Powers
Resolution.
Approved September 18, 2001.
LEGISLATIVE HISTORY—S.J. Res. 2^ (H.J. Res. ^ 4 ) :
CONGRESSIONAL RECORD, V o l . 147 (2001):
Sept. 14, considered and passed Senate and House.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, V o l . 37 (2001):
Sept. 18, P r e s i d e n t i a l statement.


http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/html/PLAW-107publ40.htm

8/3/2012



23349

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE RESPONSE TO
v. GOVERNMENT REQUEST FOR
JUDICIAL NOTICE

MANNING, Bradley E., PFC

U.S. Army.

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221 I

DATED: I7 August 2012



RELIEF SOUGHT

1. PFC Bradley E. Manning, by and through counsel, moves this Court to deny the
Govemment?s request for judicial notice of the joint resolution dated 18 September 2001
authorizing use of force, also known as Public Law I07-40.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party, the Govemment 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. PFC Manning is charged with ?ve specifications of violating a lawful general regulation, one
speci?cation of aiding the enemy, one speci?cation of disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight speci?cations of communicating
classi?ed information, ?ve speci?cations of stealing or knowingly converting government
property, and two speci?cations of knowingly exceeding authorized access to a government
computer, in violation of Articles 92, I04, and 134, Unifomi Code of Military Justice (UCMJ)
10 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 18 March 201 1. The current charges were preferred on 1 March 201 1.
On l6 December through 22 December 2011, these charges were investigated by an Article 32
Investigating Of?cer. The charges were referred on 3 February 2012.

APPELLATE lixl
PAGE REFERENCED:
PAGE OF PAGES

23350



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 Enclosure 8 to the Government?s motion for Judicial
Notice dated 3 August 2012 because it is not relevant under M.R.E. 401 and 402.

7. Pursuant to M.R.E. 401, evidence is relevant when it has ?any tendency to make the
existence of any fact that is of consequence to the determination of the action ore probable or
less probable than it would be without the evidence.? M.R.E. 402, meanwhile, establishes
?evidence which is not relevant is not admissible.?

8. Presumably, the Government requests judicial notice of the joint resolution in order to prove
some element of Charge 1 and its Speci?cation, as Article 104 is referenced in sub-paragraph
of the Government?s motion. Article 104 requires the Government to prove that PFC Manning
gave intelligence to a certain person, did so by indirect means, the person receiving the
intelligence was an enemy and the intelligence information was true, at least in part. See
Military Judge ?s 3 -28-4.

9. Public Law 107-40 states:

That the President is authorized to use all necessary and appropriate
force against those nations, organizations, or persons he detennines
planned, authorized, committed, or aided the terrorist attacks that
occurred on September 2001, or harbored such organizations or
persons, in order to prevent any future acts of international terrorism
against the United States by such nations, organizations or persons.

10. Public Law 107-40 is not relevant because it does not make any element of Article 104 more
or less likely. Article 104 requires proof that the alleged recipient of intelligence was an enemy
at the time of the alleged disclosure, yet Public Law 107-40 gives no insight as to whether any
particular person was an enemy. While it may be reasonable to presume that one who is subject
to a use of force is an enemy], the law offers no insight as to whether the alleged enemy in this
case is or was subject to a use of force. Rather, it generically states that those responsible for the
terrorist attacks of 11 September 2001 are subject to use of force at the President?s discretion.
There is no evidence on the record that the recipient of the alleged disclosure in this case falls
within the group contemplated by Congress when enacting Public Law 107-40. Absent such
evidence, Public Law 107-40 does not make it more or less likely that a given person or entity
was an enemy at the time of the alleged disclosure of intelligence.

Indeed, an ?enemy? may be de?ned as ?any other hostile body that our forces may be opposing." Military Judge's
Benchbook,

23351

11. The Government?s request for judicial notice of Public Law 107-40 should be denied. The
law in question does not make it more or less likely that any particular person or group was an
enemy at the time PFC Manning allegedly gave intelligence to a certain person and is, thus, not
relevant. M.R.E. 401. As such, Public Law 107-40 should be excluded at this time. M.R.E. 402.

CONCLUSION
15. Based on the above, the Defense requests that the Court deny the Govemment?s motion for

judicial notice of Public Law 107-40.

Respectfully submitted,



JO UA J.T OMAN

Defense Counsel

23352

UNITED STATESOF AMERICA
Prosecution Motion
v.

for Preliminary Determination
of Admissibility of
MRE 404(b) Evidence

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

3 August 2012
RELIEF SOUGHT

The Prosecution in the above case respectfully requests that this Court make preliminary
determinations on the admissibility of evidence of crimes, wrongs, or acts that are not being used
to prove character lAW Military Rule of Evidence (MRE) 404(b) and on the use of evidence to
rebut the offer of a pertinent character trait of the Accused lAW MRE 404(a). The Govemment
seeks said preliminary determinations to increase the efficiency of the proceedings and to ensure
the trier of fact is only presented admissible evidence. See RCM 916(b)(13), discussion.
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. RCM 905(c)(1). The burden of persuasion
on any factual issue, the resolution of which is necessary to decide a motion, shall be on the
moving party. RCM 905(c)(2). The United States has the burden of persuasion as the moving
party.
FACTS
The Accused is charged with one specification of aiding the enemy, one specification of
disorders and neglects to the prejudice of good order and discipline and service discrediting,
eight specifications of violations of 18 U.S.C. § 793(e), five specifications of violations of 18
U.S.C. § 641, two specifications of violations of 18 U.S.C. § 1030(a)(1), and five specifications
of violating a lawful general regulation, in violation of Articles 104, 134, and 92, Uniform Code
ofMilitary Justice (UCMJ). See Charge Sheet.
The Accused attended Advanced Individual Training (AIT) in Fort Huachuca, Arizona
from April 2008 to August 2008. See Prosecution Exhibit (PE) 4. His platoon sergeant was SFC
Brian Madrid. See Enclosure 1. AIT began with a block of instruction on INFOSEC, which
teaches the military analyst how to handle and safeguard classified information. Id. The
FNFOSEC training block of instruction included training on how to properly mark and handle
classified informafion, the meaning of the various classificafions, how to effectively use the
intemet, the value of the intemet in research and collection, and operational security including
the enemy's use of the intemet. See PE 5.
In June 2008, the Accused received corrective training. See Enclosure 1. SFC Madrid
required the Accused to give a presentation to the platoon at formation, present a PowerPoint
1

APPELLATE EXHIBIT
PAGE REFERENCED:

PA0Ei_OF

QSP

PAGES

23353

presentationto SFC Madrid, and prepareawritten product. The corrective training wasaresult
of the Accused posting videos onYouTube where he used ^^buzzwords^^ such as top secret,
secret, classified, and SCIF,which he was taught not to do. SFC Madrid saw one ofthe videos
onYouTube in which the Accused discussed his work ina^^secretSCIF^^ and his handling of
classifiedinformation. Enclosurel.
The presentation to the platoon discussed information security,proper handling of
information,aSoldier^s obligation to protect and not expose classified material,the possibility
thataSoldier^s disclosure that he or she has access to classified material may be dangerous to the
Soldier, and that enemyforces are trying to collect information on theU.S.Military. Id. The
written product defined secret information and identified the typeofpeople who try to collect
information for use against the United States, such as foreign govemments, enemies, spies,
hackers, etc. Id^ The PowerPoint presentation closely mirrored the written product. Id. The
PowerPoint presentation was found on the Accused^s extemal hard drive. See Enclosure 2.
In approximately March 2009,SPCJihrleah Showman became the Accused^s supervisor
at Fort Drum, NewYork. Enclosure3. Both she and the Accused were assigned the MOS 35F
and attended training together at the unit, including JRTC training. Id^ They also deployed
together in October 2009. Id. Before the deployment, SPC Showman counseled the Accused on
his military bearing. Id. During this counseling, SPC Showman asked the Accused what the fiag
meant to him. Id. The Accused responded that the fiag meant absolutely nothing to him, and he
had no allegiance to the United States or its people. Id. SPC Showman repeated the Accused^s
statement inaswom statement given during the investigation into the Accused^s misconduct.
SeeEncIosure4.
On8May 2010, the Accused punched SPC Jihrleah Showman in the face. See Enclosure
5. Because of this misconduct, the Accused was removed from the2 10Mountain SCIF and
assigned to work in the supplyroom. Enclosure6. Healso received an Articlel5for his
misconduct. SeeEnclosure5.
The prosecution provided the defense MRE 404(b)noticeon6April 2012. Enclosure7.
The prosecution published its witness list on 22 June 2012and named both Ms.Jihrleah
Showman (SPC Showman) and SFC(R) Brian Madrid as witnesses. See Appellate Exhibit(AE)
CLXIL
WITNESSES/EVIDENCE
The prosecution requests the Court consider the charge sheet and the71isted enclosures.
LEGALAUTHORITY AND ARGUMENT
LEVIDENCEOFTHEACCUSEDS OTHER WRONGS IS ADMISSIBLE FORA
NONCHARACTER PURPOSE
In general, MRE 404(a) prohibits admission of evidence ofaperson'scharacter to prove

23354

action in conformity therewith onaparticular occasion. MRE 404(b), however, allows the
introduction of evidence of other crimes,wrongs, or acts provided they are not used to show
action in conformity with that character onaspecific occasion. The prosecution may offer this
non-propensity evidence against the Accused in its case in chief as proof of"motive,
opportunity,intent, preparation, plan, knowledge, identity or absenceofmistake or accident."
UnitedStatesv Morrison.52MJ 117.121 ^ C A A F 1999^^citingMRE404^b^^ Evidence
does not, however, need to fall within one ofthe nonpropensity examples given by MRE 404(b)
tobeadmissible United StatesvCastillo,29MJ 145. 150(CMAI989^
MRE404(b)"isaruleofinclusion,notexcIusion."UnitedStatesv.Diaz,59MJ 79,
93 9 4 ( C A A F 2003)^seealso United StatesvTyndale.56MJ 209.212(CAAF 2001^:
United StatesvBrownin^. 54 M.J. I.6(C.AA.F.2000^. MRE 404^b^onlv excludes propensitv
evidence, and then goes on to giveanonexhaustive list ofthe purposes for which the evidence
could beadmissible United Statesv.Johnson,49MJ 467.473 (C.A.A.F.1998)."^T^hesole
test under Mil.R.Evid.404(b)is whether the evidence ofthe misconduct is offered for some
purpose other than to demonstrate the Accused'spredisposition to crime and therebyto suggest
that the factfinderinfer that he is guilty...."Castillo, 29 M.J.atl50^ see also Huddlestonv.
UnitedStates, 485 US. 681,686(1988)
Toensure the evidence hasaproper purpose under MREI04(b),402,and 403,theU.S.
Court of Appeals for the Armed Forces(CAAF) applies the following three-pronged test to
determine the admissibility ofother acts evidence under MRE 404(b): (l)Does the evidence
reasonably supportafinding by the factfinderthat the Accused committed prior crimes,wrongs,
oracts7 (2) What fact ofconsequence is made more or less probable by the existence ofthis
evidenced (3)Does the probative value substantially outweigh any potential unfair prejudiced
Diaz,59MJ at94(citin^UnitedStatesv Reynolds.29MJ 105, 109(CMA 1989)) Ifthe
evidence meets each ofthese three tests, it is admissible. Id.
A.The Evidence ReasonablySupportsaFindingbythe Fact Finderthattl^e
Accused Committed Prior Bad Acts
Whether the evidence reasonably supportsafinding that the Accused committed prior
crimes,wrongs, or acts,"is founded on ^MREj104(b)dealing with relevance conditioned ona
fact"United StatesvActon,38MJ 330, 333 (1994) TheCourt of At^t^eals has held that
"^tjhe threshold for this^first^ prong of admissibility is low." Acton, 38 M.J.at333^see also
Browning, 54 M.J. at 6. Acton provides:
^ijn determining whether the Govemment has introduced sufficient
evidence to meet Ru1e104(b), the trial court neither weighs
credibility nor makesafinding that the Govemment has proved the
conditional fact byapreponderance ofthe evidence. The court
simply examines all the evidence in the case and decides ^^^^^^^
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^...^^

23355

3 8 M J a t 333 (citingHuddleston,485 USat690)(emt^hasis added): seealso Castillo, 29MJ
at151("^T^he military judge must admit the evidence ifhe concludes that the factfindercould
reasonably find byapreponderance ofthe evidence that the other misconduct had occurred, even
though the judge himself would not make suchafinding.")
All three govemment witnesses (Ms. Showman, SFC(R) Madrid, and SSG Bigelow)
testified under oath at the Article 32. In addition, Ms.Showman gaveaswom statement
consistent with her Article 32 testimony regarding the Accused^s disloyal statement. The
govemment will ofler the slideshow to support SFC(R)Madrid^s statement, which was recovered
from the Accused^s extemal hard drive. The Accused^s actions of punching then SPC Showman
in the face is supported by the Articlel5the Accused received and its supporting documentation.
Based on swom testimony alone, the trier offact could reasonably find that the Accused
committed the misconduct in all instances.
All three witnesses are on the prosecution^s witness list. Assuming the above evidence is
again elicited under oath at trial, there is sufficient evidence to admit the uncharged misconduct
subject to the introduction ofthe evidence at triaL Accordingly,thefirstprong ofthe Reynolds
test is conditionally satisfied.
B. The Existence of thisEvidenccMal^esFacts of Consequence More Probable
MRE 401defines "relevant evidence" as "evidence having any tendency to make the
existence ofany fact that is ofconsequence to the determination ofthe action more probable or
less probable than it would be without the evidence." MRE 401. In general, all relevant
evidence is admissible. See MRE 402.
The Accused^s infractions will directly assist the factfinderin deciding whether or not
the Accused had the requisite knowledge to commit the misconduct. The evidence is not being
offered to prove character. The training that the Accused presented to his platoon sergeant and
his AITclass in response to his breach oflNFOSEC/OPSEC shows that the Accused knew that
information posted on the intemet is accessible to and sought out by the enemy. See Charge
Sheet, Charge ILSpecificationl^see also Castillo, 29 M.J.at 151(allowing the factfinderto
consider uncharged misconduct between the Appellant and the victim to understand the
significance ofagesture). Without discussing the underlying uncharged act, the factfinderwill
not be able to sufficiently comprehend why the Accused had to complete the various corrective
training assignments.
The Accused^s disloyal statement to SPC Showman is evidence relevant to the Accused^s
state ofmind. The evidence is not being offered to prove the character ofthe Accused nor is it
being offered to prove motive. The evidence is being offered to show that the Accused madea
statement that he had no particular loyalty to the country whose information it was his job to
safeguard. The statement is evidence ofthe Accused^s intent for the charged misconduct because
it makes it more likely that the Accused did not care ifthe enemy had access to the information
that was posted on the Intemet. Specifically,it is circumstantial evidence that the Accused
knowingly gave intelligence to the enemy in support of Charge 1,Specification1^that the
Accused wrongfully and wantonly caused the information to be published on the intemet with

23356

knowledge that it would be accessible to the enemy in support of Charge II,Specificationl^that
the Accused^s conduct was willful in support ofCharge II, Specifications 2,3,5,7,9,10,11,12,
13,and 15^and that the Accused stole, purloined, or knowingly convertedathingofvalue to the
United States in support of Charge 1LSpecifications4. 6. 8. 12. and16. See Charge Sheets see,
e.g.,Huddleston,485 U.S.at 685 (^^Extrinsic acts evidence may be critical to the establishment
of the trust as toadisputed issue, especially when that issue involves the actor^s state o f m i n d . . .
B)^ United StatesvHumt^hrevs.57MJ 83 91 ^ C A A F 2002^^Evidenceof^^otheracts^^ ofthe
Accused^s inappropriate comments was admissible to show Accused^s non-innocent intent in
making charged inappropriate comment.)
The Accused^s misconduct ofpunching SPC Showman is necessary to show the timeline
ofthe Accused^s removal fi^om the SCIF and placement in the Supply Room to work with SSG
Bigelow where the Accused^s misconduct continued. Because ofthe battery,the Accused was
removed from the2 10Mountain SCIF and assigned to work in the supply room. In the supply
room, the Accused stole or converted the United States Forces-Iraq (USF I) Global Address List
(GAL). See Charge Sheet, Charge II, Specificationl6. Without discussing the underlying
misconduct, the sudden change in the Accused^s position will be confiising to the panel and the
timeline will be unclear. See Castillo, 29 M.J.at 150 ("It is unnecessary...that relevant
evidence fit snugly intoapigeon hole provided by ^MREj 404(b).")
The uncharged misconduct makes facts ofconsequence more probable under the liberal
admissibility standard outlined in MRE 402. The evidence is not being used to establish
character, but is being used to show knowledge, state ofmind, andatimeline of events. Assuch,
the information will assist the factfinderinaproper determination on the merits, and satisfies
the second prong ofthe Reynolds analysis.
C. The Probative Value Substantially Outweighs any Potential Unfair Prejudice
Prejudice alone is not sufficient to warrant exclusion. Evidence ofalegal relevance
theory should only be excluded when the probative value is "substantially outweighed" by the
accompanying prejudicial dangers. UnitedStatesv.Teeter,12M.J.716(A.C.M.R.1981)
(stating that strikingabalance between probative value and prejudicial effect is lefl to the trial
judge and that the balance "should be struck in favor of admission"). Virtually all evidence is
prejudicial to one party or another. Tojustify exclusion the prejudice must be unfair. United
Statesv.CandelariaSilva,162F.3d 698, 705 (1st Cir. 1998). However, "l^a^nAccused is not
immunized...against the Govemment'suse of evidence of other misconduct because the other
misconduct was especiallyfiagrantand repugnant." Castillo, 29 M.J.at 151^see also United
StatesvStokes.12MJ 229,239(1982)
Relevant evidence must be weighed against its tendency to create ^^^^^ prejudice,
mislead the factfinder,cause undue delay,or waste time. United Statesv.Dimberio, 56 M.J.20,
24(C.A.A.F.2001)(emphasis added). Unfair prejudice occurs when the proffered evidence
causes, or leads, the factfinderto makeadecision on an improper basis. OldChiefv.United
States,519US 172,180(1997).

23357

Although there is notaclear test to follow,CAAF has stated that factors formilitary
judges to consider in conductingabalancing test are the following:
the strength ofthe proofofthe prior act^ the probative weight of
the evidenced the potential to present less prejudicial evidenced the
possible distraction ofthe factfinders the time needed to prove the
prior conducts the temporal proximity ofthe prior events the
frequency ofthe acts^ the presence ofany intervening
circumstances^ and the relationship between the parties.
United StatesvBerry,61MJ91(CAAF 2005)(citin^ United StatesvWri^t.53MJ 476.
482 ( C A A F 2000))
The Accused^sINFOSEC/OPSECbreachesatAIT stand up to the factors in Berry There
is strong proofthat the Accused committed the misconduct. His platoon sergeant saw and
testified under oath to seeing the video posted onYouTube. In addition, CIDrecovereda
corrective training PowerPoint from the Accused^s extemal hard drive that corresponded to the
date and content ofthe PowerPoint that the Accused presented to SFC(R) Madrid. The evidence
is probative to the elements conceming the Accused'sintent when he compromised information.
In particular, the evidence directly establishes the Accused^s knowledge required in Charge II,
Specificationl. The evidence is also not particularly prejudicial to the Accused, apart from
proving his knowledge, especially in light ofthe charged misconduct. The uncharged act shows
asecurity infraction inatraining environment. As stated, the misconduct is being used to elicit
sufficient facts for the factfinderto understand the evidence on corrective training, thus minimal
time will be spent on those cursory facts. The charged and uncharged misconduct are also
temporally proximate as they occurred approximately eighteen months apart—one while the
Accused was being trained in his MOS and one while the Accused was working in his MOS.
The AITmisconduct occurred in June 2008 and the charged misconduct begins on or abouti
November 2009. The AITmisconduct was limited^ however, the charged misconduct ranged
over several months, not to mention several databases. There was no presence ofintervening
circumstances. The Accused committed the misconduct, it was reported by his peers, and it was
dealt with by his supervisor. The acts completeachronological and logical story^ removing the
acts would create confusing gaps.
SPC Showman^s testimony regarding the Accused^s disloyal statement also stands up to
the factors in Berry. ConsistentwithherArticle32testimony, SPC Showman gaveaswom
statement reporting the same misconduct bythe Accused. The statement will likely be
prejudicial toapanelofSoldiers^ however, compared to the charged misconduct, the statement is
not overly prejudicial when viewed in light ofthe probative value it has into the Accused^s state
ofmind. All evidence presented to the factfinderregarding the Accused^s serious misconduct
will be prejudicial to the fact finder. Given the charged misconduct, however, the statement will
likely not beadistraction to the factfinderwho will be more focused on the serious misconduct
charged. The testimony will take minimal time to elicit. The uncharged misconduct occurred in
the months immediately preceding the unites deployment,which is when, on or about November
2009,the charged misconduct began. The statement occurred during one counseling sessions
however, the charged misconduct ranged over several months, not to mention several databases.

23358

There were no intervening circumstances^ the Accused was inacounseling session witha
superior, not inacasual setting withafriend.
The Accused^s battery ofSPC Showman also stands up to the factors in Berry. The act
was witnessed by several individuals and testified about under oath at the Article 32 by SPC
Showman and others. The battery is relevant to show the circumstances ofthe Accused^s
removal from the SCIF and the corresponding timelines ofthe charged misconduct. There is no
less prejudicial evidence to sufficiently explain the Accused^s movement to the fact finder.
Compared to the charged misconduct, the battery will ofler little, if any,distraction for the fact
finder. The time needed to show the uncharged misconduct will be very minimaL The
uncharged misconduct occurred during the charged misconduct. The specific battery only
occurred on one occasions however, the charged misconduct ranged over several months, not to
mention several databases. There was an intervening circumstance ofaverbal disagreement
between SPC Showman and the Accuseds however, that can also be elicited in testimony. The
relationship between the parties varied betweenasuperior-subordinate and peers^ they were not
friends.
In addition to withstanding the factors recommended in Berry, the defense will have
ample opportunity at trial, through cross examination and argument, to attack this evidence's
meaning, importance, and weight. Furthermore, the Court can and should issuealimiting
instruction to the panel that specifically discusses the permissible and impermissible uses ofthis
evidence. These aspects oftrial procedure will help to ensure that that the evidence is used only
for its proper aforementioned purpose.
Because the probative value ofthe evidence is not substantially outweighed by the danger
ofunfair prejudice, the third Reynolds prong is satisfied in this case.
H THEINFOSEC/OPSECVIOLATIONS,DISLOYALSTATEMENTS,AND
BATTERY OFSPCSHO^MANAREADMISSIBLEUNDERM.RE. 404(A)(1) TO
IMPEACHDEFENSE WITNESSES ON GOOD SOLDIEREVIDENCE.
Evidence ofaperson'scharacter oratrait of character is generally not admissible for the
purpose ofproving action in conformity therewith onaparticular occasion. MRE 404(a)(1).
Evidence ofapertinent trait of character offered by an Accused, or by the prosecution to rebut
the same, however, is admissible. Id^ "The priceadefendant must pay for attempting to prove
his good name is to throw open the entire subject which the law has kept closed for his benefit
and to make himselfvulnerable where the law otherwise shields him." Michelsonv.United
States,335 US 469, 479(1948)^ seealso United StatesvJohnson,46MJ8(CAAF 1997)
Ifadefense witness offers opinion or reputation evidence that the Accused isagood
Soldier, the prosecution can rebut that evidence. MRE 404(a)(1). On cross-examination, the
Goverttment may inquire into relevant specific instancesoftheAccused^s conduct. MRE 405(a).
The questions would refer to the relevant uncharged misconduct, such as the Accused^s breach of
INFOSEC/OPSEC at AIT,disloyal statements, and battery ofSPC Showman. Specifically,the
prosecution will test the foundation ofthe witnesses opinion or reputation evidence by asking

23359

"have you heard" or "did you know" questions ofthat witness. See, e.g.,United Statesv.Pearce,
2 7 M J 1 2 1 , 1 2 4 ( C A A F 1988)
Based on the testimony ofthe witnesses at the Article 32,the swom statement, the
PowerPoint, the Articlel5,and, presumably,the testimony the witnesses will give at trial,the
Goverrtmenthasagood faith belief that the Accused did commit all the above discussed
misconduct. Id.
The evidence is extremely probative into whether or not the Accused isagood Soldier.
Good Soldiers do not breach the security ofthe information that they were trained to protect,
theyare loyal to theUnitedStates,andtheydonotpunchtheirpeersorsuperiorsin theface
While certainlyprejudicial to the defense, the evidence is not unfairly prejudicial such that it
would be prohibited by MRE 403.
In addition, the defense will have ample opportunity to argue to the panel their theory of
thecase. Finally,if the defense believes the evidence is inordinately damaging to their case, they
can choose not to call good Soldier witnesses. The risk ofprejudice is "a risk undertaken bythe
defense in electing to present affirmative character evidence." Pearce,27M.J.atl25.
CONCLUSION
The prosecution requests the Court grant the prosecution^s motion and preliminarily
determine the uncharged acts are admissible pursuant to MRE104(b),402,403,and 404(b), as
all three Reynolds prongs are satisfied, and that the evidence is admissible foradifferent purpose
under MRE 404(a)(l)if the defense presents good Soldier evidence.

ANGELMOVERGAARD
CPT,JA
AssistantTrial Counsel
Icertifythatlhave served or caused to be servedatrue copy ofthe above on the Defense
cot^seIon3August2012.

ANGELMOVERGAARD
CPT,JA
AssistantTrial Counsel
7Encls
1. Summarized Article 32Testimony,SFC Madrid

23360

2. Accused'sPowerPoint Presentation, 13Jun 08
3. Summarized Article 32Testimony,SPC Showman
4. Swom Statement, SPC Showman
5. Article15Packet
6. Summarized Article 32Testimony,SSG Bigelow
7 MRE404(b)Notice,6Apr11

23361

UNITED STATESOF AMERICA

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

Prosecution Motion
for Preliminary Determination
of Admissibility of
MRE 404(b) Evidence
Enclosure 1
3 August 2012

APPELLATE EXH1B1T_2££
PAGE REFERENCED:
PAGE
OF
PAGES

23362

28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46

BRIAN MADRID, 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
government, was sworn, and t e s t i f i e d i n s u b s t a n c e as f o l l o w s :
DIRECT EXAMINATION
Q u e s t i o n s b y A s s i s t a n t T r i a l Counsel 2:
I r e t i r e d i n t h e m i d d l e o f September 2010; I s e r v e d i n t h e
Army f o r 22 y e a r s .
I was a 35T, w h i c h i s a E l e c t r o n i c W a r f a r e
M i l i t a r y I n t e l l i g e n c e System I n t e g r a t o r and M a i n t a i n e r . I
worked on a l l o f t h e MI c o l l e c t i o n systems, computers n e t w o r k s ,
communications equipment, and we were a l s o e v o l v i n g i n t o t h e
e x p l o i t a t i o n o f c a p t u r e d enemy equipment such as PDA, l a p t o p s ,
and phones.
I was PFC Manning's AIT P l a t o o n S e r g e a n t ; he
a t t e n d e d advanced i n d i v i d u a l t r a i n i n g a t F o r t Huachuca. He
a t t e n d e d t r a i n i n g t h e r e , I b e l i e v e , f r o m A p r i l u n t i l August
2008.
I was i n t h e P l a t o o n Sergeant p o s i t i o n from between
F e b r u a r y 2008 u n t i l August 2010; t h a t ' s about 2 1/2 y e a r s .

82

23363

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

PFO Manning i s a 35F, a M i l i t a r y I n t e l l i g e n c e A n a l y s t .
I
am f a m i l i a r w i t h t h e 35F b l o c k o f i n s t r u c t i o n .
The f i r s t b l o c k
o f i n s t r u c t i o n s t h a t they received I b e l i e v e i t i s c a l l e d ,
''I^FOSFC,'' and i t i s b a s i c a l l y i n s t r u c t i n g t h e m i l i t a r y a n a l y s t
how t o h a n d l e and t h e s a f e g u a r d i n g o f c l a s s i f i e d i n f o r m a t i o n . I
know t h a t i s t h e f i r s t b l o c k o f i n s t r u c t i o n because I would t a l k
t o t h e i n s t r u c t o r s , and s t u d e n t s would always come back and say
how much t h e y e n j o y e d t h e c l a s s . I n o^der t o a t t e n d t h a t AIT
t h e y have t o have an i n t e r i m TSBSOI s e c u r i t y c l e a r a n c e .
The
accused was r e q u i r e d t o do c o r r e c t i v e t r a i n i n g i n AIT. I b e l i e v e
t h a t was i n ^lune 2008. Some S o l d i e r s had come t o me one
a f t e r n o o n e x p l a i n i n g t h a t P r i v a t e Manning had been p o s t i n g
v i d e o s on ^ouTube, and he was u s i n g words such as t o p s e c r e t ,
s e c r e t , c l a s s i f i e d , and SCIF which he was t a u g h t n o t t o do.
A l l e g e d l y , t h e r e were t h r e e v i d e o s ; because o f t h e l i m i t a t i o n s
w i t h o u r l o c a l n e t w o r k , we had ^ouTube b l o c k e d , so we had one o f
t h e S o l d i e r ' s l a p t o p and used t h e w i r e l e s s I n t e r n e t t o see one
o f the videos.
The v i d e o was o f him i n s i d e o f h i s b a r r a c k s room
s p e a k i n g about h i s d a i l y l i f e ; t h e n he began t o b r a n c h o f f o n t o
s u b j e c t s l i k e w e l l I work a t t h i s s e c r e t SCIF, I h a n d l e d t h i s
c l a s s i f i e d i n f o r m a t i o n , u s i n g bu^^words l i k e t h a t .
The
c o r r e c t i v e t r a i n i n g a t t h e t i m e t h a t he was r e q u i r e d t o do a
p r e s e n t a t i o n t o t h e company, and whenever we had t h e S o l d i e r s do
t h a t t y p e o f c o r r e c t i v e t r a i n i n g , he would have p r e s e n t e d i t t o
us f i r s t t o ensure t h a t t h e S o l d i e r s were g o i n g t o p r e s e n t an
i n f o r m a t i v e product.
I a l s o had him p r e s e n t me w i t h a t y p e
memorandum s t a t i n g t h a t he b a s i c a l l y u n d e r s t o o d t h a t he wasn't
supposed t o do t h a t t y p e o f t h i n g .
He wasn't supposed t o expose
h i m s e l f , a p e r s o n w i t h c l e a r a n c e w i t h access t o t h a t t y p e o f
i n f o r m a t i o n . The p r e s e n t a t i o n i n f r o n t o f t h e u n i t was about
i n f o r m a t i o n s e c u r i t y , how t o handle i t , and e s p e c i a l l y i f you
a r e a p e r s o n w i t h access t o t h i s t y p e o f m a t e r i a l you a r e n o t t o
expose t h e m a t e r i a l o r t h a t you have access t o i t . And t h a t i t
can be dangerous t o p e r s o n n e l t h a t a r e i n t h e m i l i t a r y and t h a t
t h e r e a r e p e o p l e , enemy f o r c e s t h a t a r e t r y i n g t o c o l l e c t
i n f o r m a t i o n on t h e OS m i l i t a r y .
The substance o f t h e t y p e
p r o d u c t was b a s i c a l l y what s e c r e t i n f o r m a t i o n i s , t h e t y p e o f
p e o p l e t h a t a r e t r y i n g t o c o l l e c t a g a i n s t t h e government such
as, f o r e i g n governments, enemies, s p i e s , h a c k e r s , i t e m s l i k e
that.
The PowerPoint was v e r y s i m i l a r t o t h e w r i t t e n p r o d u c t
b u t i t had more r e f e r e n c e t o r e g u l a t i o n s . He d i d t h r e e t o t a l
types o f c o r r e c t i v e t r a i n i n g - ^ t h e p r e s e n t a t i o n i n f r o n t of t h e
p l a t o o n , t h e PowerPoint, and t h e memorandum.
CR025^EXAMINATICN
Q u e s t i o n s b y t h e c i v i l i a n d e f e n s e counsels

83

23364

^

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

The AIT course I n t e l a n a l y s t i s 1^ weeks and 3 days.
And
p a r t o f t h e AIT i n s t r u c t i o n i s done i n t h e classroom, and p a r t
o f t h a t i n s t r u c t i o n i s done i n t h e f i e l d . Me b e i n g a p l a t o o n
Sergeant I had anywhere f r o m 140 t o 150 S o l d i e r s . I do g e t t o
know an o c c a s i o n a l S o l d i e r depending upon t h e s i t u a t i o n , t h e r e
a r e some S o l d i e r s t h a t you have t o d e d i c a t e a l o t o f your t i m e
t o , and t h e n t h e r e are some S o l d i e r s t h a t are r e a l l y low
maintenance. I g e n e r a l l y get t o know most o f them. I t w o u l d be
a f a i r assessment t o say t h a t I do n o t g e t t o know them a l l v e r y
well.
The t r a i n i n g t h a t t h e y r e c e i v e d c o n s i s t e d o f a l o t o f
t r a i n i n g , t h e r e i s a l o t o f t r a i n i n g compacted. I don't t h i n k
t h a t i s u n r e a s o n a b l e t o say t h a t i t i s f i r e h o s e m e n t a l i t y . T h i s
i s t h e i n i t i a l course f o r someone b e i n g t r a i n e d as a m i l i t a r y
i n t e l l i g e n c e a n a l y s t . At t h e end t h e AIT s t u d e n t s conduct a
t e n ^ d a y f i e l d e x e r c i s e . Once t h e y complete t h a t t h e n t h e y
g r a d u a t e and go on t o t h e i r f i r s t d u t y assignment. Cnce t h e y
g r a d u a t e t h e y have a b a s i c u n d e r s t a n d i n g t h e y a r e by no means an
expert i n that f i e l d .
The e x p e r t i s e f o r t h e I n t e l a n a l y s t comes
as t h e y l e a r n on^the^^ob t r a i n i n g t h r o u g h t i m e . A f t e r I watched
t h a t v i d e o I showed t o C a p t a i n C g l e t r e e , t h e v i d e o d i d n o t
d i s c u s s any s p e c i f i c o p e r a t i o n a l s e c u r i t y , b u t he was u s i n g t h e
bu^^words t o p s e c r e t , c l a s s i f i e d , words o f t h a t n a t u r e .
This
v i d e o was i n t e n d e d f o r f r i e n d s and f a m i l y , t h a t was t h e t a r g e t
audience.
I do n o t r e c a l l him s a y i n g a n y t h i n g about him m i s s i n g
h i s f a m i l y b u t I do r e c a l l him t a l k i n g about b a r r a c k s l i f e i n
the video.
Those bu^^words i n and o f themselves a r e n o t
c l a s s i f i e d , t h e y are p r e t t y w e l l known. ^ u s t r e f e r e n c i n g t h o s e
words i n t h e v i d e o i s n o t a s e c u r i t y breach because i t
r e f e r e n c e d those words and he was an ^ I T s t u d e n t he had t o do
some s o r t o f c o r r e c t i v e t r a i n i n g .
I p e r s o n a l l y do n o t have any
a b i l i t y t o suspend h i s c l e a r a n c e , even t h o u g h he was
counseled
f o r t h i s i n c i d e n t he d i d n o t l o s e h i s s e c u r i t y c l e a r a n c e o v e r
i t , had i t been suspended he would n o t have been a b l e t o
complete h i s t r a i n i n g .
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 2^
Those S o l d i e r s a r e t a u g h t n o t t o use those bu^^words
because i f t h e y were t o i d e n t i f y themselves t o o u t s i d e p e r s o n n e l
t h e y g i v e themselves an element o f p o s s i b l e compromise.
Somebody on t h e o u t s i d e c o u l d f i n d o u t t h a t t h e y had a s e c u r i t y
c l e a r a n c e , t h e y c o u l d t a r g e t t h e i n d i v i d u a l because t h e y have
access t o a c e r t a i n l e v e l o f i n f o r m a t i o n .

8^

23365

1
2
3
4
5
6
7
8
^
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34

CB^CTION
The defense c o u n s e l o b j e c t e d and asked t h e I n v e s t i g a t i n g
O f f i c e r t o v o i r d i r e the witness.
The I n v e s t i g a t i n g O f f i c e r g r a n t e d t h e defense
request.

counsel's

^OIRDIRE
I am n o t a 35F t r a i n e r . I was an AIT p l a t o o n Sergeant who
was i n charge o f t h o s e s t u d e n t s . I had n o t h i n g t o do w i t h t h e
s e t t i n g up o f c l a s s e s , b u t I s a t t h r o u g h a c l a s s . I d i d n o t do
any o f t h e i n s t r u c t i o n f o r those s t u d e n t s .
The defense c o u n s e l o b j e c t e d s t a t i n g t h a t t h i s w i t n e s s was
n o t an e x p e r t i n t h e t r a i n i n g o f t h e AIT s t u d e n t s .
The I n v e s t i g a t i n g O f f i c e r i n s t r u c t e d t h e t r i a l c o u n s e l t o
l a y a p r o p e r f o u n d a t i o n b e f o r e a s k i n g those t y p e s o f q u e s t i o n s .
The r e d i r e c t e x a m i n a t i o n b y A s s i s t a n t T r i a l Counsel 2 c o n t i n u e d
as f o l l o w s ^
I d i d not s i t through a l l of the classes t h a t the students
a t t e n d e d b u t I s a t t h r o u g h about 3 o r 4 c l a s s e s f o r each b l o c k ,
and t h e l e n g t h o f each b l o c k v a r i e d .
I d i d s i t through the
f i r s t p o r t i o n o f i n s t r u c t i o n which d i s c u s s e s c l a s s i f i e d
information.
And i n t h a t f i r s t b l o c k o f i n s t r u c t i o n t h e y s t a t e d
t h a t you c a n ' t t r a n s m i t c l a s s i f i e d p e r m i s s i o n t o someone who i s
n o t a u t h o r i s e d t o have i t .
^The w i t n e s s was p e r m a n e n t l y
ended t h e c a l l . ^

85

excused, d u l y warned, and

23366

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

Prosecution Motion
for Preliminary Determination
of Admissibility of
MRE 404(b) Evidence
Enclosure 2
3 August 2012

APPELLATE EXHIBIT 2 ^ 6
PAGE REFERENCED:
PAGE
OF
PAGES

23367

1

$L

> \

0)
T)

-ill
:5:

ly
UH

g
<

§
o

..........

(0

u

ui Q

U)

i H

:

1

4w

Q)
%

ManningB_00376859

o"

3

d




..

.1
.1. ..

3.



co_w:_o:oo

E0: co__.o2o_n_
o.u._mn_o SE58
omwmo
co_E_.5n_



ManningB_00376860

23369

Q.
o
UJ

PI

(/)

Q)
C

###m

iilil

O

ti'i

i.^

=s .P m

w-^l



(/) Z
O CO

I
i
§ iJ
^1
IP
Q-

=
^

I

O a
ManningB_00376861

''

1

"

L_

LL

Z

=I oI
iZ
(u iS

23370

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
USE OF FORM - Use this form and MCM, 1984,
Appendix 14, will be used by the trial counsel and
the reporter as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a verbatim record is prepared. Air
Force uses this form and departmental
instructions as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a summarized record is authorized.
Army and Navy use DD Form 491 for records of
trial in general and special court-martial cases in
which a summarized record is authorized.
Inapplicable words of the printed text will be
deleted.

8. Matters submitted by the accused pursuant to
Article 60 (MCM, 1984, RCM 1105).

COPIES - See MCM, 1984, RCM 1103(g). The
convening authority may direct the preparation of
additional copies.

12. Advice of staff judge advocate or legal officer,
when prepared pursuant to Article 34 or otherwise.

ARRANGEMENT - When forwarded to the
appropriate Judge Advocate General or for judge
advocate review pursuant to Article 64(a), the
record will be arranged and bound with allied
papers in the sequence indicated below. Trial
counsel is responsible for arranging the record as
indicated, except that items 6, 7, and 15e will be
inserted by the convening or reviewing authority,
as appropriate, and items 10 and 14 will be
inserted by either trial counsel or the convening or
reviewing authority, whichever has custody of
them.

13. Requests by counsel and action of the
convening authority taken thereon (e.g., requests
concerning delay, witnesses and depositions).

1. Front cover and inside front cover (chronology
sheet) of DD Form 490.
2. Judge advocate's review pursuant to Article
64(a), if any.
3. Request of accused for appellate defense
counsel, or waiver/withdrawal of appellate rights,
if applicable.
4. Briefs of counsel submitted after trial, if any
(Article 38(c)).
5. DD Form 494, "Court-Martial Data Sheet."

9. DD Form 458, "Charge Sheet" (unless included
at the point of arraignment in the record).
10. Congressional inquiries and replies, if any.
11. DD Form 457, "Investigating Officer's Report,"
pursuant to Article 32, if such investigation was
conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

14. Records of former trials.
15. Record of trial in the following order:
a. Errata sheet, if any.
b. Index sheet with reverse side containing
receipt of accused or defense counsel for copy of
record or certificate in lieu of receipt.
c. Record of proceedings in court, including
Article 39(a) sessions, if any.
d. Authentication sheet, followed by certificate
of correction, if any.
e. Action of convening authority and, if appropriate, action of officer exercising general courtmartial jurisdiction.
f. Exhibits admitted in evidence.

6. Court-martial orders promulgating the result of
trial as to each accused, in 10 copies when the
record is verbatim and in 4 copies when it is
summarized.

g. Exhibits not received in evidence. The page
of the record of trial where each exhibit was
offered and rejected will be noted on the front of
each exhibit.

7. When required, signed recommendation of
staff judge advocate or legal officer, in duplicate,
together with all clemency papers, including
clemency recommendations by court members.

h. Appellate exhibits, such as proposed instructions, written offers of proof or preliminary
evidence (real or documentary), and briefs of
counsel submitted at trial.

DD FORM 490, MAY 2000

Inside of Back Cover

e-Highlighter

Click to send permalink to address bar, or right-click to copy permalink.

Un-highlight all Un-highlight selectionu Highlight selectionh