Title: Volume FOIA 080

Release Date: 2014-03-20

Text: 25695

Volume 80 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

25696

UNITEDSTATESOF AMERICA

)
)

Proseeution Motion

^

Manning, Bradley E^
PFCU.S.Army,
HHCU.S.ArmyGarri^on,
Joint Ba^e Myer-Henderson Hall
Fort Myer,Virginia 22211

)
)
)
)
)
)

^or Court Order
for Mental Healtl^Profe^^ional^
16Augu^t2012

RELIEFSOUGHT
The prosecution in the above case respectfully requests that, in the interest of justice, this
Court issue an order to enable the A^^used^s mental health professionals to speak with the
prosecution regarding their evaluations of the A^^used between 30 June 200^ and the present
and to order the mental health professionals to give the prosecution a^^ess to their notes from 30
June 200^ to the present.

BURDEN OFPERSUASION AND BURDEN OFPROOF
The burden of proof on any factual issue,the resolution of which is necessary to decidea
motion, shall be by preponderance of the evidence. RCM^05(c)(I). The burden of persuasion
on any factual issue, the resolution of which is necessary to deoideamotion, shall be on the
movingparty RCM^05(^)(2)
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 ofl8U.S.C.^7^3(e), five specifications of violations of18
U.S.C.^64I,two specifications of violations ofISU.S.C.^I030(a)(I), and five specifications
of violatingalawful general regulation, in violation of Articles 104, I34,and ^2, Uniform Code
ofMilitary Justice (UCMJ). See Charge SheeL
On3July 2012, the defense sent the prosecution their initial Article 13 witness list. The
defense requested that the prosecution produce numerous mental health professionals, as well as
the Accused to discuss the conditions under which he was kept at Ouantico. SeeAECLXXXI
(Defense Requested Witnesses: Article 13 Motion, dated3July 2012). Specifically,the defense
requested the following mental health professionals for the following reasons:
"Capt. Hocter will testify that he gave weekly status reports slating that he felt the
POI precautions were unnecessary." Id.
"^COLMalone^will testify that the Ouantico Bri^ instituted more precautions
than he would fromapsy^hiatri^ perspective. He will testify that he consistently
recommended to the OuantiooBri^ to remove PFC Manning from POI status. He
will testify that ifPFC Manning were not in ^ustody,he would have
^

AI^1^ELL^^TE8^^I^18IT^^B^^
PAGEREFERENCED;
^^G^^
OF
PA^^^

25697

recommended routine outpatient care for him. He will testify that it has long been
known that restriction of environmental and sooial stimulation hasanegative
effect on mental function. He will testify that PFC Marming^srestrictive
confinement was not necessary fromapsychiatrie perspective, and that he made
repeated recommendations that the PFC Manning^sstatus should be
downgraded." Id.
"^LCDRMoultonjwill testify that isolation or solitary confinement is among the
most harmful conditions that can be imposed uponadetainee. He will also testify
how PFC Manning was held in restrictive solitary confinement for nearlyayear
without any psychiatric or behavioral justifioation. Finally,he will testify how
these conditions likely placed PFC Manning at an increased risk of exacerbating
any existing psychiatric symptomatology or condition." Id.
The prosecution ^onduoted cursory interviews of the defense requested mental health
professionals to make anRCM 703 determination for the purpose of the prosecution^slOJuly
2012 response, but did not go into any detail regarding the mental health professionals^
evaluation or diagnosis of the Accused. All the mental health professionals that the government
spoke with were authorized by the defense to respond to the government's limited questioning.
On lOJuly 2012, the government responded to the defense^s witness list request and
agreed to produce all the requested mental health professionals. See AECXCV (Government
Response to Defense Article 13 Witness Request, dated lOJuly 2012).
On 27 July 2012, the defense filed their Artiole 13 motion. In it, the defense addresses,
among other things, the A^oused^s placement on Prevention oflnjury (POI) status at the Marine
Corps Base Ouantico (MCBO)Pretrial Confinement Facility (PCF). The motion disousses the
A^^used^s interactions with the Aooused^s mental health professionals, and their
recommendations as to whether the Aoc:used should or should not be on POI status, as well as the
Aooused^s interactions with staffpersonnel and their determinations that the Accused should
remain on POI status. The defense also attached to the motion the Accused^s MCBO Suicide
Risk^Prevention oflnjury Assignment Reviews, beginning on 30 JulylO, as well as observation
and evaluation notes and Classification and Assignment Review documcntatlon,wbich contains

reports and reviews from bothMCBO personnel and mental health professionals. In addition,
the defense^s motion contains affidavits from CAPT Hocter and COLMalone. See Defense
Article 13 Motion, attachments 2 , 7 , ^ 8 .
Recently,the prosecution attempted to reach out to additional mental health professionals
seen by the Accused during his time in the I^uwait Confinement Facility and at the MCBO lhat
were not listed as defense witnesses^CAPTRiohardson,LTC Russell, and LCDR Weber. The
prosecution reaohedLTC Russell and asked some cursory questions, but has not been able to
speak with CAPT Richardson and LCDR Weber. The prosecution has not even been able to gel
contact information for CAPT Richardson withoutawaiver from defense oraCourt order. See
Enclosure 2. In refusing to provideaphonenumberforCAPTRichardson, the Staff Judge
Advo^ateattheNavalHospital Camp Pendleton,informedtheproseoutionofthe following:

25698

It is Naval Hospital Camp Pendleton^s position that an interview of any of our
healthcare providers requiresajudge signed order authorizing the release of
protected healthcare information, absentaHIPAA release from our patient^the
accused. These requirements are eontained in the attaohed DOD regulation
6025 18R:
"C7.5.1.Permitted Dis^Iosures.Aoovered entity may disolose protected health
information in the bourse of any judicial or administrative proceeding:
C7.5.1.1.In response to an order ofa^ourt or administrative tribunal,provided
that the covered entity discloses only the protected health information expressly
authorized by such
order;"
See Enclosure 2; see also Department ofDefenseDireetive(DoDD)6025.18R, DOD Health
Information Privacy Regulation (24 January2003),C7.5. Standard: Disclosures for Judicial and
Administrative Proceedings. The Staff Judge Advocate at Camp Pendleton also emaileda^opy
of the Directive.
On14August 2012, the prosecution emailed the defense their Article 13 witness list,
which listed CAPT Richardson,LTC Russell,and LCDR Weber. The prosecution also asked the
defense if they oouldobtainaHIPAA release from the Accused to enable the prosecution to
speak with the Accused^s mental health providers and reminded the defense that they had
mentioned in chambers that they would not have an issue providingawaiver. See Enclosurel.
Based on the information from the StaffJudge Advocate at the Naval Hospital Camp Pendleton,
the prosecution forwarded the defense DoD 6025.18^R, DoD Health Information Privacy
Regulation. SeeEnolosure3. The defense responded that the prosecution had already spoken
with the defense witnesses. See Enclosurel.
On 15 August 2012, the prosecution informed the defense that most of the mental health
professionals only answered very specific questions and did not go into detail. The prosecution
further informed the defense that two mental health professionals the Accused saw in I^uwait,
CAPT Richardson and LCDR Weber,were on the government's witness list, and they requireda
written waiver to speak with the prosecution. See Enclosurel. The defense responded that "The
Government should ask whatever questions it wants of the Defense listed witnesses, and then
renew its request with specificity regarding the questions the Defense witnesses refused to
answer." See Enclosurel. The prosecution responded that the two witnesses on the
prosecution^s witness list would not speak to the prosecution withoutawaiver or court order and
that the proseoution had not been able to ask pertinent questions based on what the defense
alleged in their Article 13 motion. See Enclosurel.
The defense informed the prose^ution,"You will need to requestaCourt Order." See
Enclosurel.
The prosecution is calling CAPT Richardson based on medical records the prosecution
received during the bourse of the investigation. SeeEnolosure4. CAPT Richardson isa
psyohiatrist who assessed the Acousedbetween2July2010and 28 July 2010, when the A^^used

25699

was oonfined in Kuwait. CAPT Richardson will testify to the Aooused^s suicidal ideations,
spe^ifioally that he determined the following regarding the Accused:
Immediate risk of self harm is still considered to be elevated^high due to his poor
reliability,inability or lack of desire to adequately express thoughts in regards to
Sl^sui^idalideationsj,not contracting for safety,havingmadeanoose and
gathered items that had potential to harm self. Additionally,his regressed
behavior and poor ego strength e^aoerbate the risk.
See En^losure4at 00000^10. CAPT Richardson suggested that the Accused transfer to another
faoility with better resources to manage the complexities of the A^^used^scondition. See
En^losure4. CAPT Richardson will testify that the A^oused^s assessed suicide risk was elevated
or high during the duration ofhis stay at the Kuwait Confinement Facility. SeeEn^losure4.
CAPT Richardson noted that the Accused claimed that he would not harm himselfbut likely
made the statements because the Ao^usedwantedaohange in uniform and in status. See
Enolosure4at 00000883 84. CAPT Richardson based his determination on the Accused^spoor
reliability and inoonsistency,having made two nooses and being deceitful about them,saying he
would be ^^patient,^^ and saying he would kill himselfifhe knew he could be successful. Id.
CAPT Richardson also based his determination on the Accused^sfragile ego, which could easily
decompensate. Id.
The prosecution is oalling LCDR Weber based on medical records the prosecution
received during the course of the investigation. SeeEnclosure4. LCDR Weber isapsyohologist
who assessed the Accused between6July2010and 27 July 2010, when the Accused was
confined in I^uwait. LCDR Weber will testify to the Aooused^ssuieidal ideations, speoifically
that she determined the following regarding the Accused: ^Tmmediate risk for self harm or harm
to others is considered to be elevated^high.^^ See En^losure4at 00000^02. This assessment
continued throughout the entirety of the assessments which ended in 27 July 2010. See
Enelosure4at00000872.
Medical reoords and MCBO forms reveal that the reoords from the Kuwait Medioal
Facility were communicated to the MCBO. See, e.g.. Defense Article 13 Motion, attachment 1.
WITNESSES^EVIDENCE
The prosecution requests the Court consider the charge sheet and the listed enclosures.
LEGALAUTHORITY AND ARGUMENT
In general, unlimited a^oess to mental health records of an Ao^used by the proseeution is
prohibited See Military RuleofEviden^e(MRE)513;DoDD6025 18 R
MRE513establishesaprivile^ebetweenapatient and his psychotherapist if such
oommuni^ation was made for the purpose of facilitating diagnosis or treatment of the patient^s
mental or emotional condition. MRE513(a). DoDD 6025.18 Restablishes when protected

25700

health information can be disclosed and used. Both protections, however, contain exceptions
beoause mental health records are discoverable when relevant and material to the charges.
DoDD 6025.18^R permits disclosures in response to, amon^ other things,a^ourt order.
SeeDoDD6025 18 R,C75.1.L
MRE513(b)(7) articulates the followinge^^eption to the MRE513 privilege:
"^t^here is no privilege...when an ao^used offers statements or other evidence
concerning his mental condition in defense, extenuation, or mitigation, under
^ir^umslan^es not covered by R.CM. 706 or Mil. R.Evid. 302. Insu^h
situations, the military judge may,upon motion, order disclosure of any statement
made by the a^^usedtoapsyohotherapist as may be necessary in the interests of
justioe...."
The defense has made the POI status of the Accused the focus of the Article 13 motion
and at the same time will not allow the prosecution access to the witnesses or information that
would explain why the Aoeused was on POI status and why, instead of trying to punish the
Accused as the defense alleges, the MCBO ^laff was trying to ensure that the Accused did not
harm himself For example, the defense alleges that, in violation of their internal policies, ^he
Duty Brig Supervisor placed the A^^used in MAX custody, citing the Accused^s previous suicide
watch in I^uwait. See Defense Article 13 Motion, paragraphlO. This was approved by the PCF
Commander,who also determined that the Aroused should be plaoed under speoial handling
instructions of Suicide Risk (SR). Id. However, the defense proposes not to allow the
government to ascertain the information that was oommunicated to Brig personnel and upon
which they based this determination.
In its Article 13 motion, the defense has, in essence, offered the Accused^s mental
condition asadefense to why the Accused should not have been on POI status. See Defense
Article 13 Motion. The defense is putting the Aceused^s mental condition at issue under
^ir^umstan^es not covered by RCM 706 or MRE 302 and then proposes lo only allow the
prosecution enough access to the Ao^used^s mental health history to establish the points that the
defense would like to establish that there wasaperiod of time when particular mental health
professionals did not believe that the Accused was suicidal and block the prosecution from
accessing the mental health professionals and information that potentially establish, at least in
part, the basis for the MCBO personnel's decisions. By trying to limit the discussion to only the
facts that are potentially helpful to the defense, the defense is deliberately providing the Court
with onlyasmall portion of the information that would be material to its decision.
Significantly, CAPT Richardson noted in the Accused^s medical records that appear to
have been reviewed by MCBO personnel and mental health professionals (based on the notations
in the MCBO paperwork), that he believed the A^^used changed his statements to mental health
professionals regarding his suicidal ideations because he wanted to change his uniform and have
less restrictions. CAPT Richardson and LCDR Weber both assessed the A^^used^s risk of
committing suicide as elevated or high during the duration ofhis stay in I^uwait. Again, in the
interest ofjustioe, to ensure that the Court has an complete understanding the Accused^s behavior

25701

and history of suicidal ideations, the Court should determine that the MRE513 privilege does
not apply to the Accused^s mental health information IAWMRE513(b)(7).
In addition, the defense has waived the privilege. IAWMRE510,apersonwaivesa
privilege by voluntarily disclosing or consenting to disclosure of any significant part of the
matter or communication under suehoireumstances that it would be inappropriate to allow the
claim of privilege. MRE510.
Here, the Accused has waived the privilege insofar as he has provided affidavits from his
mental health professionals regarding their treatment of the Aeoused and is calling his mental
health professionals to testify about their assessments of the Aceused. Again, the Ao^used
cannot only waive the privilege for the portions of testimony and records that are potentially
helpful to him (i.e., testimony that the Ao^used was not having suicidal ideations), but e^^lude
the records and testimony that provide the basis for his POI classification.
The prosecution should not only be permitted to fully explore the assessments completed
by LTC Russell, LCDR Weber, and CAPT Richardson, but should also be permitted to
completely explore the bases for the recommendations of CAPT Hocter and COLMalone.
Specifically,theproseoution should be permitted to explore the reasons behind CAPT HocteBs
and COLMalone^s recommendations that the Accused be placed on and removed from POI
status and how their reasons may agree with or differ from the mental health professionals and
MCBO ^taff that deemed the Acousedasuicide risk. The prosecution should also be able
explore why CAPT Hooter and COL Malone believed that mental evaluation was necessary
despite recommending he be removed from POI status, and why CAPT Hocter documented on
his Suicide Risk^Prevention of Injury Assignment Reviews that he believed that the Accused
may have to be segregated from the general population for other reasons. The prosecution
should be able to explore the reasons for the diagnoses and how what the mental health
professional see and evaluate differs from what the MCBO personnel see and how they interpret
it. For example, in defense^s motion, they oite an affidavit obtained from CAPT Hocter which
notes that the MCBO generally keeps patients on precautions longer than he recommends. See
DefenseArti^le 13 Motion, atta^hments7^8.
In addition, the prosecution should be able to e:^plore why COL Malone checked the bo^
on one of his Suicide Risk^Prevention of InjuryAssigrm^ent Reviews that the Accused did not
poseathreat to himselfbut noted that the A^^used remained at moderate risk of self harm and
why COLMalone noted that the Accused^s suicide risk was moderate to high but then decreased.
The prosecution should also be able to explore COLMalone^s notation that the Accused made
^^provocative statements" and if other MCBO staff could have interpreted as suicidal ideations.
The prosecution should also be able to e:^plore the differences betweenLTC Robert Russell^s
recommendations and COLMalone^s recommendations when both completed Suioide
Risk^Prevention oflnjury Assignment Reviews ofthe A^^used during the same time period,with
one determining that the A^^used wasasuicide risk and one determining that the Aocused was
notasuiciderisk. See Defense Article 13 Motion, attaohment 2.
All notes and testimony documenting the Aocused^s prior suicidal ideations and any
behavior that could be interpreted as suicidal by MCBO personnel is material to the

25702

understanding of why the Accused remained on POI status. This is, therefore, the type of
situation that MRE510is designed to cover, as justice would not allow for the defense to pick
and choose which parts of his mental health history are not privileged, thereby allowing only the
potentially helpful portions to be disolosed and not revealing the entire pioture for the Court.
Because the proseoution has not been able to ascertain necessary information from mental
health professionals withouta^ourt order orawaiver from the Ao^used and the A^c:used will not
signawaiver, the prosecution requestsa^ourt order to obtain relevant information. Toe^pedite
the proceedings and prevent the government from having to request any supplemental orders
from the Court, the prosecution requests that the order apply to all mental health professionals
from 30 June 200^ to the present day and all mental health records. SeeEnclosure5.
CONCLUSION
The prosecution requests that, in the interest ofjustice,this Court issue an orderto enable
the Accused^s mental health professionals to speak with the prosecution regarding their
evaluations of the A^^used between 30 June 200^ and the present, and to order the mental health
professionals to give the proseoutionao^ess to their notes from 30 June 200^ to the present.

ANGELMOV^R^GAARD
CPT,JA
AssistantTrial Counsel
Icertifythatlhave served or caused to be servedatrue oopy of the above on the Defense
counsel on 16 August 2012.

ANGELM^VERGAARD
CPT,JA
AssistantTrial Counsel
5Encls
1. Email Re: Article 13 Witness List
2. Email Re: HIPAA Requirement
3 DoD6025 18 R,C75
4. Accused Medical Reeords
5. Draft Court Order

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



0 25703

Prosecution Motion

for Court Order
for Mental Health Professionals

Enclosure 1

16 August 2012

0 25704



mm: %uLQo9mSubject: RE: Article 13 Witness List

Dabe: Wednesday, August 15, 2012 9:50:04 AM

Ashden,

You will need to request a Court Order.

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



From: Fein, Ashden MAJ USARMY MDW (us)
Sent: Wednesday, August 15, 2012 9:47 AM

To: David Coombs

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

Subject: RE: Article 13 Witness List

David,

Thank you. As for the two witnesses on the governments witness list, they
will not speak with us without a waiver or court order. Will the defense be
willing to obtain a waiver so that we may speak with these witnesses or will
the defense require the United States to request a Court order? These
doctors fall into the same category of the doctors from Quantico that are on
the defense's witness list, and currently we are unable to ask them
pertinent questions based on what the defense has alleged in your Article 13
motion.

v/
Ashden


From: David Coombs

0 25705

Sent: Wednesday, August 15, 2012 9:41 AM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
Morrow, JoDean (Joe) 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: Article 13 Witness List

Ashden,

1. I disagree with your interpretation of whether the Defense can simply
adopt the Government listed witnesses.

2. I disagree that Touhy would apply to a Defense witness listed for a
court-martial. I agree that all of the Government listed witnesses are
Department of Defense witnesses.

3. There is no need for a RCM 703 determination. The Government should ask
whatever questions it wants of the Defense listed witnesses, and then renew
its request with speci?city regarding the questions the Defense witnesses
refused to answer.

Best,

David

David E. Coombs, Esq.

Law Of?ce of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282




Notice: This transmission, including attachments, may
contain con?dential attorney?client information and is intended for the





0 25706

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

?-?-?Original

From: Fein, Ashden MAJ USARMY MDW
Sent: Wednesday, August 15, 2012 9:26 AM

To: David Coombs

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
Morrow, JoDean (Joe) 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: Article 13 Witness List

David,

For this witness list, we used our standard language and below is a brief
response to your email.

1. The United States intends to call all the listed witnesses, but our
decision could change based on many factors. To ensure the production of a
witness, the defense must comply with RCM 703(c) and Rockwood.

2. Although Touhy always applies, these government employees do not require
further coordination because they are employed through the Department of
Defense; therefore, it is not necessary.

3. Although all of the medical professionals from the defense witness list
spoke to us, most of them only answered very speci?c questions and did not
go into mud?: detail- enough for the prosecution to make determinations under
RCM 703. We added CAPT Richardson and LCDR Weber, who are both mental
health professionals that saw the accused in Kuwait, to the government's
witness list, and they require a written waiver.

Thank you!

Ashden



0 25707



From: David Coombs [m iltozco rm courtm rtial .c m]




Sent: Tuesday, August 14, 2012 9:06 PM
To: Fein, Ashden MAJ USARMY MDW (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
Morrow, JoDean (Joe) 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: Article 13 Witness List

Ashden,

I do not understand a witness list where the Government states it "may" call

a certain witness. Are these individuals being called by the Government or
not? Additionally, the Defense does not need to comply with Rockwood or RCM
703 if it is simply adopting the Government's witness list. If the

Government elects not to call a certain witness, then you must provide us

with timely notice of this fact.

I also do not understand what you mean by stating there may be a need to
comply with Touhy. Finally, which Defense listed witness indicated that you
needed a HIPPA release? From speaking with my witnesses, they informed me
that you had already interviewed them.

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

coombs@a rmycourtmartialdefensecom


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



From: Fein, Ashden MAJ USARMY MDW


Sent: Tuesday, August 14, 2012 8:54 PM




To: David Coombs

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

25708



0 0 25709

Subject: Article 13 witness List
David,

Attached is the government's Article 13 witness list. According to the

legal advisors to the health care providers on our witness list and some of
the doctors on the defense's witness list, we are required to obtain a HIPAA
release from the accused or a Court order, before speaking with the
providers. You mentioned in chambers that the defense would not have an
issue providing this waiver, if it became an issue. Could you please assist
with providing the government with the HIPAA release so we can continue
preparing our response. Additionally, attached is 602S.18r, Health
Information Privao/ Regulation, which we were provided by the health care
attorneys.

Thank you!

v/

Ashden

UNITED STATES OF AMERICA
V.

Manning, Bradley E.

PFC, U.S. Army,

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



0 25710

Prosecution Motion

for Court Order
for Mental Health Professionals

Enclosure 2

16 August 2012



257m

Overgaard, Angel CPT USARMY (US)

Subject: FW: HIPAA requirements

Message--?--
From: Eichenmuller, Jennifer LCDR
Sent: Tuesday, August 14, 2612 7:

To: Fein, Ashden MAJ USARMY (US)

Cc: von Elten, Alexander (Alec) CPT USARMY Mendoza, Edgardo CIV
(US)

Subject: HIPAA requirements

Major Fein,

It is Naval Hospital Camp Pendleton's position that an interview of any of our healthcare
providers requires a judge signed order authorizing the release of protected healthcare
information, absent a HIPAA release from our patient/the accused. These requirements are
contained in the attached DOD regulation 6025.18R:

Permitted Disclosures. A covered entity may disclose protected health information in
the course of any judicial or administrative

proceeding:

C7.S.1.1. In response to an order of a court or administrative tribunal, provided that the
covered entity discloses only the protected health information expressly authorized by such
order;" .

I hope this is helpful.
Sincerely,

Jennifer Eichenmuller

LCDR, JAGC, USN

Staff Judge Advocate

Naval Hospital Camp Pendleton, H-166 Box 555191, Santa Margarita Road Camp Pendleton, CA
92055



NOTICE: The information contained in this email and any attachments to it

is UNCLASSIFIED BUT SENSITIVE INFORMATION which is LEGALLY PRIVILEGED. This information is
intended solely for the use of the recipient identified above. If you are not the intended
recipient of this informatin, any disclosure, copying, distribution or the taking of any
action in reliance on this information is strictly prohibited. The sender has not waived any
applicable privilege by sending this transmission. If you received this email in error,
please notify me immediately by return mail or by using the telephone/fax numbers provided.
If you have any questions regarding this notice, please contact the sender.



mm; Fein, Ashden ma USARMY Mow (us)

Sent: Tuesday, August 14, 2012 12:37 PM

To: Hill, Steven Mendoza, Edgardo CIV

Cc: von Elten, Alexander (Alec) CPT USARMY Eichenmuller, Jennifer Mendoza,

Edgardo Cueto, Gorgonia CIV



25712

Subject: RE: Assistance

Thank you; however we are not needing to request him be a witness, just contact information
so we can simply ask him a few questions to determine whether we need him to be a witness for
a US Army court-martial. Could we please be provided a personal cell number, now that he has
retired so we can reach out?

Unfortunately, our witness list is due tonight and we just need to ask a few questions to
determine whether he is the appropriate witness. Thank you!

v/r
MAJ Fein

From: Hill, Steven CIV

Sent: Tuesday, August 14, 2012 3:35 PM

To: Mendoza, Edgardo CIV Fein, Ashden MAJ USARMY MDN (US)

Cc: von Elten, Alexander (Alec) CPT USARMY Eichenmuller, Jennifer Mendoza,
Edgardo CIV Cueto, Gorgonia CIV (US)

Subject: RE: Assistance

MAJ,

Good afternoon. The attached is provided for your use. I will ensure the SJA (LCDR
Eichenmuller) is aware of this issue as soon as she steps back into the office.



Steven P. Hill
USN-Retired
Office Manager

Legal Department

Naval Hospital, H-106

Box 555191, Santa Margarita Rd
Camp Pendleton, CA 92055



ATTORNEY WORK PRODUCT

For Official Use Only - Privacy Sensitive Any misuse or unauthorized disclosure may result
in both civil or criminal penalties.

The information contained in this e-mail and accompanying attachments constitute confidential
information that may be legally privileged. If you are not the intended recipient of this
information, any disclosure, copying, distribution, or the taking of any action in reliance
on this information is strictly prohibited. If you received this e-mail in error, please
notify me immediately by returning this e-mail or by calling (760) 725-1539.


From: Mendoza, Edgardo CIV
Sent: Tuesday, August 14, 2012 12:18 PM

To:

Subject: RE: Assistance



0 25713

Major Fein,
I am ccing Mr. Hill, who is a staff at the legal department.



Ed Mendoza

Secretary, Mental Health Department
Naval Hospital Camp Pendleton

is a plan to fail

- Anonymous

"Confidentiality Notice: The information in this email, including any attached documents, is
"For Official Use Only." Access to this email by anyone other than the intended addressee is
unauthorized. If you are not the intended recipient of this message, any review, disclosure,
copying, distribution, retention, or any action taken or omitted to be taken in reliance on

it is prohibited and may be unlawful. If you are not the intended recipient, please reply to
or forward a copy of this message to the sender and delete the message, any attachments, and
any copies thereof from our system."



From: Fein, Ashden MAJ USARMY Mow (us) [mai1to:?]
Sent: Tuesday, August 14, 2912 11:46 AM

To: Mendoza, Edgardo CIV

Cc: von Elten, Alexander (Alec) CPT USARMY (US)

Subject: RE: Assistance

Importance: High

Mr. Mendoza,

Do you have another SJA or C0 that we could speak with? Our filing is due TODAY and no one
is answering the phone or email with your SJA. Thank you!

v/r
MAJ Fein



From: Mendoza, Edgardo CIV [mailto:E
Sent: Monday, August 13, 2912 12:06 PM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: von Elten, Alexander (Alec) CPT USARMY (US)

Subject: RE: Assistance

Major Fein,

Please call our legal department, POC LCDR Jennifer Eichenmuller at
760-725-1266 or email jen.eichenmu11er@med.navy.mil.
She is our SJA. Thank you.



Ed Mendoza

Secretary, Mental Health Department
Naval Hospital Camp Pendleton

Iailure !o p!an is a plan to fail

Anonymous



25714

"Confidentiality Notice: The information in this email, including any attached documents, is
?For Official Use Only." Access to this email by anyone other than the intended addressee is
unauthorized. If you are not the intended recipient of this message, any review, disclosure,
copying, distribution, retention, or any action taken or omitted to be taken in reliance on

it is prohibited and may be unlawful. If you are not the intended recipient, please reply to
or forward a copy of this message to the sender and delete the message, any attachments, and
any copies thereof from our system."



From: Fein, Ashden MAJ USARMY (US)
Sent: Monday, August 13, 2912 8:37 AM

To: Mendoza, Edgardo CIV

Cc: von Elten, Alexander (Alec) CPT USARMY (US)

Subject: RE: Assistance

By the way- this information is for the court-martial of PFC Bradley Manning, the "w!k!leaks"
Soldier.



From: Mendoza, Edgardo CIV [mailt
Sent: Monday, August 13, 2612 11:32 AM
To: Fein, Ashden MAJ USARMY (US)
Subject: RE: Assistance

Major Fein,
I will forward this email to my dept head and will get back with ASAP.


Ed Mendoza
Secretary, Mental Health Department

an is a plan to fail
- Anonymous

"Confidentiality Notice: The information in this email, including any attached documents, is
"For Official Use Only." Access to this email by anyone other than the intended addressee is
unauthorized. If you are not the intended recipient of this message, any review, disclosure,
copying, distribution, retention, or any action taken or omitted to be taken in reliance on

it is prohibited and may be unlawful. If you are not the intended recipient, please reply to
or forward a copy of this message to the sender and delete the message, any attachments, and
any copies thereof from our system."



From: Fein, Ashden mu usmmv Mow (us)
Sent: Monday, August 13, 2612 8:36 AM

To: Mendoza, Edgardo CIV

Cc: von Elten, Alexander (Alec) CPT USARMY (US)

Subject: Assistance

Mr. Mendoza,
I am a US Army prosecutor with the US Army Military District of washington.

we are looking for contact information for CAPT Richardson, who could be a potential witness
in our pending court-martial. Please send any contact information you may have. Thank you.

?ulj 25715



v/r

Ashden Fein
Major, US Army

25716

UNITED STATES OF AMERICA
Prosecution Motion
V.

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

for Court Order
for Mental Health Professionals
Enclosure 3
16 August 2012

25717

DoD 6025.18-R

DoD HEALTH INFORMATION
PRIVACY REGULATION

JANUARY 2003

ASSISTANT SECRETARY OF DEFENSE FOR HEALTH AFFAIRS

25718

DoD 6025.18-R, Jan. 24. 2003

C7.5. STANDARD: DISCLOSURES FOR JUDICIAL AND ADMINISTRATIVE
PROCEEDINGS
C7.5.1. Permitted Disclosures. A covered entity may disclose protected health
information in the course of any judicial or administrative proceeding:
C7.5.1.1. In response to an order of a court or administrative tribunal,
provided that the covered entity discloses only the protected health information
expressly authorized by such order; or
C7.5.1.2. In response to a subpoena, discovery request, or other lawful
process, that is not accompanied by an order of a court or administrative tribunal, if:
C7.5.1.2.1. The covered entity receives satisfactory assurance, as
described in subparagraph C7.5.1.3., from the party seeking the information that
reasonable efforts have been made by such party to ensure that the individual who is the
subject of the protected health information that has been requested has been given
notice of the request; or
C7.5.1.2.2. The covered entity receives satisfactory assurance, as
described in subparagraph C7.5.1.4., from the party seeking the information that
reasonable efforts have been made by such party to secure a qualified protective order
that meets the requirements of subparagraph C7.5.1.5. of this section.
C7.5.1.3. For the purposes of subparagraph C7.5.1.2.1., a covered entity
receives satisfactory assurances from a party seeking protecting health information if
the covered entity receives from such party a written statement and accompanying
documentation demonstrating that:
C7.5.1.3.1. The party requesting such information has made a good faith
attempt to provide written notice to the individual (or, if the individual's location is
unknown, to mail a notice to the individual's last known address);
C7.5.1.3.2. The notice included sufficient information about the litigation
or proceeding for which the protected health information is requested to permit the
individual to raise an objection to the court or administrative tribunal; and
C7.5.1.3.3. The time for the individual to raise objections to the court or
administrative tribunal has elapsed, and:
C7.5.1.3.3.1. No objections were filed; or

59

CHAPTER 7

25719

^^^^^^^^^^..B^^^^..^^^^

C7.5.1.3.3.2. All objections filedbythe individual have been
resolved bythe court or the administrative tribunal and the disclosures being sought are
consistent with such resolution.
C7.5.1.^. For the purposes of subparagraph C7.5.1.2.2.,acovered entity
receives satisfactory assurances fromaparty seeking protected health information, i f the
coveredentityreceives from such partyawritten statement and accompanying
documentation demonstrating that:
C7.5.1.^.1. The parties to the dispute conceming the request for
information have agreed toaqualified protective order and have presented it to the court
or administrative tribunal withjurisdiction over the dispute; or
C7.5.1.^.2. The party seeking the protected health information has
requestedaqualified protective order from such court or administrative tribunal.
C7.5.1.5. For purposes ofparagraphC7.5.1.,aqualifiedprotective order
concerning the protected health information requested under paragraph C7.5.2., is an
order ofacourt or of an administrative tribunal orastipulation by the parties to the
litigation or administrative proceeding that:
C7.5.1.5.1. Prohibits the parties from using or disclosing the protected
health information for any purpose other than the litigation or proceeding for which such
information was requested; and
C7.5.I.5.2. Requires the return to the covered entity or destruction of the
protected health information (including all copies made) at the end of the litigation or
proceeding.
C7.5.I.^. Notwithstanding subparagraph C7.5.I.^.,acovered entity may

disclose protected health information in response to lawfiil process described in
subparagraph C7.5.1.2. without receiving satisfactory assurance under subparagraphs
C7.5.1.2.1. or C7.5.1.2.2., i f the covered entity makes reasonable efforts to provide
notice to the individual sufficient to meet the requirements of subparagraph C7.5.1.3.
or to seekaqualified protective order sufficient to meet the requirements of
subparagraph C7.5.1.^.
C7.5.2. Other Uses andDisclosuresUnderThis Chapter. The provisions of this
section do not supersede other provisionsofthis Chapter that otherwise permit or
restrict uses or disclosures of protected health information.

CHAPTERS

25720

^^^^^^^.^^^.B^^^^^^^^^

C7.5.3. RelationshiptoPrivacvAct Disclosures Pursuant to the Order ofaCourt
of Competent Jurisdiction. Under5U.S.C552a(b)(II)(reference(c)),aFederal
Agency may disclose Privacy Actprotected information pursuant to the order ofacourt
(i.e.,an order that has been reviewed and approved byajudge) of competent
jurisdiction. In certain eases, the authority to disclose protected health information in
response to an order ofacourt or administrative tribunal may be broader than the
related authorityunder the Privacy Act (reference(c)). In such cases,other Privacy Act
rules and procedures,such as the establishment ofaroutine use permitting disclosure,
and where compulsory legal process is concerned, notification of the individual when
the process becomesamatter of public record, may also apply. As stated in section
C2.6.,adisclosure of protected health information must be in accord with both this
Regulation and the Privacy Act and its implementing Regulation(references(c)and(d)).
C7.5.^. Administrative or Judicial Proceedings in Relation to Courts-Martial
Procedures. Any order fi^omamilitary judge in connection with any process under the
UniformCodeofMilitaryJustice (reference (v^^is an order covered by subparagraph
C7511
C7 6 STANDARD: DISCLOSURES FORLA^ENFORCEMENTPURPOSES
Acovered entity may disclose protected health information foralaw enforcement
purpose toalaw enforcement official if the conditions in paragraphs C7.6.1.through
C7.6.6. are met, as applicable.
C7.6.1. Permitted Disclosures: Pursuant to Process and as Otherwise Required Hy
Law. Acovered entity may disclose protected health information:
C7.^.1.1. As required by lawincluding laws that require the reporting of
eertain types of wotinds or other physical injuries, except for laws subject to
subparagraph C7.2.1.2. (reports of child abuse and neglect) or C7.3.1.1. (reports
required by lawof abuse, neglect or domestic violence); or
C7.^.1.2. Incompliance withandaslimitedbythe relevant requirements of:
C7.^.1.2.1. Acourt order or court-ordered warrant, orasubpoena or
summons issuedbyajudicial officer;
C7.6.1.2.2. Agrandjury subpoena; or

CHAPTERS

25721

Appellate Exhibit 269
Enclosure 4
46 pages
ordered sealed for Reason 4
Military Judge's Seal Order
dated 20 August 2013
stored in the original Record
of Trial

25722

UNITEDSTATESOF AMERICA
Prosecution Motion
Manning, Bradley E.
PFC,U.S.Army,
HHCU.S.ArmyGarrison,
JointBaseMyerHendersonHall
Fort Myer, Virginia 22211

for Court Order
for Mental Health Professionals
Enclosures
16August2012

25723

UNITED STATES OF AMERICA
v^

Court Order
for Mental Healtl^ Professionals

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

XXAugust2^12

TO^ PFC Mannings MentalHealtl^ Professionals
1. As the Military Judge presiding over the above-captioned General Court-Martial,Ihave
determined, pursuanttoArtiele^^, Uniform CodeofMilitaryJustiee(10USC^^^6),thatyou
have information which it is required to provide in the interests ofjustiee.
2. You are directed to respond to all questions asked by the prosecution team in United Statesv.
PFC Manning regarding the behavior, mental health, and suicidal ideations ofPFC Manning and
to produce anyrequested mental health records ofPFC Bradley Manning, including notes, fi^om
30 June 200^ to the present.
3. Coordinate with the prosecution team in LnitedStatesv.PFC Manning to effect delivery of
the notes and records.
^. Should the requirements ofthis court order not be complied with,a^arrant of Attachment
may be issued and executed to compel production ofthe records and you may be ordered to
appear before the court to show cause whytheeourt^sorder has not been carried out. ^ i l l l u l
refusal to produce duly subpoenaed evidence foracourtmartial may be prosecuted asacrime
against the United States(Article^7,UniformCodeofMilitaryJustice(10U.S.C.^^^7^^.
So ordered this

day of August 2012.

Denise Lind
Colonel,JA
Chief Judge, 1st Judicial Circuit

25724

UNITEDSTATESOF AMERICA
V.

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

Prosecution Notification
to the Defense of
Statements under RCM 914
3 August 2012

1. On 26 July 2012, the Court ordered the prosecution to notify the defense what types of pretrial statements the prosecution intends to disclose to the defense under Rule for Courts-Martial
(RCM) 914. RCM 914 states as follows:
After a witness other than the accused has testified on direct
examination, the military judge, on motion of a party who did not
call the witness, shall order the party who called the witness to
produce, for examination and use by the moving party, any
statement of the witness that relates to the subject matter
conceming which the witness has testified, and that is: (1) [i]n the
case of a witness called by the trial counsel, in the possession of
the United States; or (2) [i]n the case of a witness called by the
defense, in the possession of the accused or defense counsel.
RCM 914(a); see also RCM 914, analysis (the rule is based on the Jencks Act, 18 U.S.C. §
3500). The "rule is not intended to provide a general right of discovery, but 'to prevent a party
from gaining an unfair advantage in the trial arena by withholding evidence that could impeach
that party's witness.'" United States v. Parks. 2009 WL 6841857 (A.C.C.A. 2009) (citing United
States V. Lewis. 38 M.J. 501, 508 (A.C.M.R. 1993)). RCM 914 applies at trial; nevertheless,
"the rule is not intended to discourage voluntary disclosure before trial, even where RCM 701
does not require disclosure, so as to avoid delays at trial." RCM 914, analysis.
2. RCM 914(f) defines what qualifies as a "statement." See RCM 914(f). Statements include
written or electronic records signed, initialed, or otherwise adopted by a witness, e-mails sent by
a witness, transcriptions or recordings of an oral statement made contemporaneously with the
making of that statement and consisting of a substantially verbatim recital of that statement,
testimony given in an Article 32 investigation or grand jury proceeding, and other "statements
which could properly be called the witness' own words." Parks, 2009 WL 6841857 (citing
Palermo v. United States. 360 U.S. 343, 352 (1959)); see also United States v. Holmes. 25 M.J.
674 (A.F.C.M.R. 1987) (information a witness told an investigator, compiled outside the
witness' presence and after-the-fact, is not a "statement" under RCM 914); see also United States
V. Staley, 36 M.J. 896, 898 (A.F.C.M.R. 1993) (recordings or transcripts of testimony before an
administrative discharge board are subject to RCM 914).
3. RCM 914 applies only to materials in the possession of the prosecutorial arm of the United
States. See United States v. Ali. 12M.L 1018, 1019 (A.C.M.R. 1982); see also United States v.
^ PPELLATE EXHIBIT
PAGE REFERENCED:
PAGE
OF
PAGES

25725

Gomez, 15ML954.964(ACMR 1983):UnitedStatesvCallev.l973 A C M R 14570
(statements given to Congress are not subject to Jencks); RCM914, analysis. In Ali, the court
held that statements submitted toacompany commander engaged in the prosecutorial function
were statements within the meaning ofJencks, but that statements submitted to the charge of
quarters, albeitarepresentative of the commander but who was not engaged in the prosecutorial
function,was not within the Jencks Act. SeeAli,12M.J.atl019; see also Galley. 1973
A.C.M.R.14570(the phrase "the United States" is used "inafunctional, prosecutorial sense").
4. The prosecution proposes the following process to search for, preserve, and disclose material
under RCM914:
a. For all witnesses, the prosecution will search its records, and will request that
investigative agencies search their records, for any statements that the prosecution reasonably
expects will relate to the subject matter of each witness'santicipated testimony on direct
examination. The prosecution will disclose such statements in accordance with the filing date set
by the Court.
b. For any potential rebuttal witness, the prosecution will preserve any applicable
statements and timely disclose those statements under RCM914should the witness testify.
5. The prosecution understands its continuing obligation to provide material under RCM914.

^

LHUNTER WHYTE
CPT,JA
AssistantTrial Counsel

25726

UNITED STATES OF AMERICA

)

V.

)
)
)
)
)
)
)

)

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

Prosecution Notification
to the Court

25 July 2012

The United States responds to the Court's Order, dated 22 June 2012, Appellate Exhibit CXLVII,
as follows:
1. Military Authorities. The prosecution anticipates that the military authorities that are
custodians of classified evidence that is the subject of the Defense's Motion to Compel will not
claim a privilege lAW MRE 505(c) for the classified information that is due to the Court on 3
August 2012.'
2. FBI. The prosecution anticipates the appropriate Senior Official, on behalf of the FBI, will
seek limited disclosure lAW MRE 505(g)(2) and will not claim a privilege lAW MRE 505(c) for
classified information.

ASHDEN FEIN
MAJ, JA
Trial Counsel

' This notification does not include any of the military authorities for which the prosecution has received a delay.

/JPELL/Jrr EXKmiT_2Z
fAC'E kEFCRENCED:
PAGE
OF
PAGES

25727

UNITEDSTATESOF AMERICA

^

V.

^
^
)^
^
^
^
^

^

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

Prosecution Notification
totheCourt

20 July 2012

The United Statesresponds to theCouri's Order, dated22June 2012, Appellate ExhibitCXLVII,
as follows:
Tl^e prosecution sought out and identified files regarding the accused under the possession,
custody,or control ofmilitary authorities that were the subject of the Delense Motion to Compel
2,Appellate ExhibitXCVI. Specifically,the prosecution coordinated with DOD, HODA, CID,
DIA,DISA,CENTCOM,SOUTHCOM,andCYBERCOM TheprosecutionnotifiestheCourt
ofthe status ofwhether the custodian ofclassified evidence for the following entities will seek
limited disclosure IAWMRE505(g)(2)or claimaprivilege IAWMRE505(c)forthe classified
information under that agency's control.
(1) H^DA,DOD,CENTCOM,DISA,andSOUTHCOM.Theprosecutionanticipatesthe
appropriate Senior Official ofthe Intelligence Community,on behalf ofthese organizations and
commands, will seek limited disclosure lAWMRE 505(g)(2) and will not claimaprivilege lAW
MRE 505(c)for classified inlormation. On 19 July 2012,the Court granted the prosecution an
extension to respond forthe information classified above the secret level or containing
specialized control measures.
(2) CID. The prosecution already disclosed all CID information, and will continue to
disclose any additional information as CID continues to receive additional information.
(3) DIA. The prosecution anticipates DIA will seek limited disclosure lAWMRE 505(g)(2)
and will not claimaprivilege lAWMRE 505(c) for classified information. Onl9July 2012,the
Court granted the prosecution an extension to respond for the information classified above the
secret level or containing specialized control measures.
(4) CYBERCOM.Onl9July 2012, theCourt granted theprosecutionan extension to
respond for all CYBERCOM information.

ASHDEN FEIN
MAJ, JA
Trial Counsel

APPELLATE EXHlBlT_222z_
PAGE REFERENCED:
PAGE
OF
PAGES

0 25728

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: DEFENSE MOTION

v. TO COMPEL DISCOVERY #2

MANNING, Bradley E., PFC

U.S. Army,
Headquarters an ea quarters Company,

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

DATED: 22 June 2012



On 10 May 2012, Defense Moved to Compel Discovery #2 in accordance with (IAW)

RCM 70l(a)(2), 70l(a)(5), 70l(a)(6) and 905(b)(4), Article 46, UCMJ, and the Fifth and Sixth
Amendments to the Constitution. On 2 June 2012, Defense filed a Motion for Modi?ed Relief.
On 7 June 2012, Defense filed an addendum to the Motion to Compel Discovery #2 and on 18
June 2012, Defense ?led a second addendum. Government opposes. On 31 May 2012,
Govenunent provided the Court Notice of ONCIX damage assessment. On 2 June 2012,
Defense responded. A?er considering the pleadings, evidence presented, and argument of
counsel, the Court ?nds and concludes the following:

Discovery at Issue:

1. Full investigative files by the Army Criminal Investigation Division (CID), Defense
Intelligence Agency (DIA), Defense Information Systems Agency (DISA), and United States
Central Command (CENTCOM) and United States Southern Command (SOUTHCOM) related
to PFC Manning, WikiLeaks. and/or the damage occasioned by the alleged leaks IAW RCM
702(a)(2).

2. The I-Ieadquarters Department of the Army (I-IQDA) ?le related to the 17 April 2012
discovery request IAW RCM 701 and RCM 701(a)(6).

3. The entire FBI, Diplomatic Security Service (DSS), Department of State (DOS), Department
of Justice (DOJ), Government Agency, Office of the Director of National Intelligence (ODNI),
and Office of the National Counterintelligence Executive (ONCIX) files in relation to PFC
Manning and/or WikiLealwhether the evidenceis discoverable under RCM If the Court detennines that the
files are not within the possession, custody, or control of military authorities, Defense requests
the Court order production as relevant and necessary under RCM 703(1).

a. FBI (1) FBI investigation. Defense alleges Government has produced heavily
redacted files containing only material favorable to the defense and moves for discovery of the
entire report of investigation involving PFC Manning or WikiLeaks.

APPELLATE EXHIBIT
PAGE


0 0 25729

(2) On 31 May 2012, the Government noti?ed Defense that the FBI conducted
an Impact Statement for which the Government intends to ?le an ex parte motion under MRE
505(g)(2)-

b. DSS Defense alleges Government has disclosed only items charged in specification
14 of Charge 11 and moves to compel DSS ?les dealing with Specifications 12 and 13 of Charge
11. Government states it has disclosed the entire file.

c. DOS - Defense moves to compel:

(1) Chief of Mission review of released cables at affected posts concerning their
initial assessment as well as their opinion regarding the overall effect that WikiLeaks release
could have on relations with the host country, if any. The Chiefs of Mission produced written
assessments of the leaked cables based upon their independent review. These written
submissions were then used to formulate a portion of the dra? damage assessment completed in
August of 201 1;

(2) WikiLeaks Working Group documents particularly written Situation
Reports approximately twice a week during the groups time period of operation roughly from 28
November 2010 until 17 December 2010.

(3) Mitigation Team documents particularly written minutes of its meetings and
written agendas for it work. Part of the Mitigation Team?s efforts concentrated on
counterterrorism concerns;

(4) The Persons at Risk Group Information Memorandum for the Secretary of
State, matrix to track identified individuals, and formal guidance to all embassies concerning the
Department of States? efforts and authorized actions for any identified person at risk;

(5) Information collected by the Director of the Office of Counterintelligence
within the Department of State regarding any possible impact from the disclosure of diplomatic
cables intended to possibly be used to update the August 201 1 draft damage assessment; and

(6) The Department of State's reporting to Congress to include any prepared
written statement for Congressional testimony on 7 and 9 December 2010 and Congressional
testimony by Ambassador Patrick Kennedy?s testimony on 1 1 March 2011 for members of the
House of Representatives and the Senate and the House Permanent Select Committee on
Intelligence, and DOS reports to Congress concerning any effect caused by WikiLeaks
disclosure and steps undertaken to mitigate them, de 2 briefings for members of the House of
Representatives and the Senate in December 2010.

On 8 June 2012, the Court granted the Govenunent?s request for 30 days to determine whether
the above records exist. On 9 July 2012, the Government will notify the Court whether such

records exist and ?le a supplemental response to the Defense Motion to Compel Discovery for
those records that do exist.





d. DOJ documents related to the investigation of PFC Manning and WikiLeaks.
e. CIA internal investigation or damage assessment.
f. ODNI Internal Review of DOS cables.

g. ONCIX - Documents related to PFC Manning or WikiLeaks. The Government has
provided 12 pages of Brady material. On 31 May 2012, the Government provided notice to the
Court that ONCIX has a draft damage assessment with a coordinated version complete

approximately 13 July 2012 and agreed to provide the draft damage assessment to the Court for
in camera review.

4. Brady material from the Interagency Committee Review, President?s Intelligence Advisory
Board, House of Representative's Oversight Committee;

5. All evidence intended for use in the Government case-in-chief obtained from DA, DISA,
FBI, DSS, DOS, DOJ, Government Agency, ODNI, and ONCIX.

6. All aggravation evidence the Government intends to introduce in sentencing from DA, DISA,
FBI, DSS, DOS, DOJ, Government Agency, ODNI, and ONCIX.

7. The entire CID, DIA, DISA, and CENTCOM, and SOUTHCOM ?les related to PFC
Marming, WikiLeaks, and/or the damage occasioned the leaks to include documents, reports,
analyses, ?les, investigations, letters, working papers, and damage assessments. Defense alleges

they are material to the preparation of the defense as they will show, what, if any damage was
caused by the leaks.

8. Interagency Committee Review: The results of any investigation or review concerning the
alleged leaks by Mr. Russell Travers, National Security Staff's Senior Advisor for Information
Access and Security Policy. Defense alleges Mr. Travers was asked to lead a comprehensive
effort to review the alleged leaks.

9. President?s Intelligence Advisory Board: Any report or recommendation concerning the
alleged leaks by Chairman Chuck Hagel or any other member of the Intelligence Advisory
Board.

10. House Representatives Oversight Committee: The results of any inquiry and testimony
taken by House of Representative Oversight Committee led by Representative Darrell Issa. The
committee considered the alleged leaks, the actions of Attomey General Eric Holder, and the
investigation of PFC Manning.

Defense further moved the Court to require the Government to state with specificity the steps it
has taken to comply with RCM 701 This issue will be addressed at the Article 39(a)
session on 25 June 2012.

The Law:

25730



l. The Due Process Clause of the Fifth Amendment requires the Government to disclose
evidence that is material and favorable to the defense, Brady v. Maryland, 373 U.S. 83 (1963).

2. Discovery in the military justice system is governed by Article 46, UCMJ, providing equal
opportunity for the parties to obtain witnesses and evidence, and RCM 70], implementing
Article 46. These rules provide broader discovery that required by Brady Constitutional
standard. U.S. v. Williams, 50 MJ. 46 (C.A.A.F. 1999); US v. Simmons, 38 M.J. 376 (C.M.A.
1993), U.S. v. Behenna, 70 M.J. 521 (Army Ct. Crim. App. 2011); U.S. v. Trigueras, 69 M.J.
604 (Army Ct. Crim. App. 2010). RC 70l(a)(6) requires that trial counsel shall, as soon as
practicable, disclose to the defense the existence of evidence known to the trial counsel which
reasonably tends to negate the guilt of the accused of an offense charged; reduce the degree of
guilt of the accused of an offense charges; or reduce the punishment. RCM 70l(a)(2) requires
the trial counsel, after service of charges, upon request of the defense, to permit the defense to
inspect any books, papers, documents, photographs, tangible objects, buildings or places 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 belonged to the accused. The Court of
Appeals for the Armed Forces has interpreted RC 70l(a)(2) to require trial counsel to disclose
to the defense discoverable information regardless of when the Government intends to use it.
US v. Luke, 69 M.J. 309 (C.A.A.F. 2011).

3. The Government has a due diligence duty to search for discoverable information both under
Brady and RC 701. The scope of the prosecution?s requirement to search government ?les
beyond the prosecutor?s own ?les for discovery under RC 701 and Brady Maryland, 373
U.S. 83 (1963) is generally limited to: (1) the ?les of law enforcement authorities that have
participated in the investigation of the subject matter of the charged offenses; (2) investigative
?les in a related case maintained by an entity closely aligned with the prosecution, and (3) other
?les, as designated in a defense discovery request that involved a speci?ed type of information
within a speci?ed entity. The parameters of the review depends on the relationship of the other
governmental entity to the prosecution and the nature of the defense discovery request. The
outer parameters are ascertained on a case by case basis. The parameters of the review that must
be conducted outside the trial counsel ?les is dependent on the relationship of the other
governmental entity to the prosecution and the nature of the defense discovery request. U.S. v.
Williams, 50 Mi. 46 (C.A.A.F. 1999) (holding that trial counsel had no duty to review unit
disciplinary records for information concerning any investigations or prosecutions of government
witnesses, where defense did not speci?cally request a review of such ?les. In Williams, the
defense ?led a general request for ?any and all investigations or possible prosecutions pending
which could be brought against any witness the government intends to call during the trial.?
Williams held this was not a speci?c request and the trial counsel was not required to review the
unit ?les in which the information was located.) Williams went on to state that while the
Government has a duty to review prosecution and police ?les readily available to the
prosecution, it is not required to search for ?a needle in a haystack".

4. The Government does not have a discovery obligation under RCM 70l(a)(2) unless the
discovery at issue is within the possession, custody, or control of military authorities, and is
material to the preparation of the defense or intended for use by the trial counsel as evidence in

0 0 25732

the Prosecution case in chief at trial, or was obtained from or belonged to the accused. To the
extent relevant ?les are known to be under the control of another government entity, the
Prosecution must make that fact known to the Defense and engage in good faith efforts to obtain
the material. Williams, quoting Simmons, citing to the Standard 1 l02.l(a) Commentary,
American Bar Association, Criminal Justice Discovery Standards 14 n. 9 (3d ed. 1995).

5. Evidence maintained by other government agencies, whether aligned with the Prosecution or
not, are not within the control of military authorities IAW RCM 70l(a)(2). (See analysis to
RCM 70l(a)(2) "Except for subsection the rule deals with discovery in terms of disclosure of
matters known to or in the possession of a party. Thus, the defense is entitled to disclosure

of matters known to the trial counsel or in the possession of military authorities. Except as
provided in subsection the defense is not entitled under this rule to disclosure of matters not
possessed by military authorities or to have the trial counsel seek out and produce such matters
for it. . .. Subsection may accord the defense the right to have the Government assist the
defense to secure evidence or information when not to do so would deny the defense similar
access to what the prosecution would have if it were seeking the evidence or the information. See
US. v. Killebrew, 9 154 (CMA 1980); Halfacre v. Chambers, 5 MJ 1099 (CMA 1976).?

6. The burden is on the Defense for production of evidence outside the control of military
authorities for discovery under the relevant and necessary standard in RCM 703(f). Evidence
that is material to the preparation of the defense under the control of other government agencies
can be relevant and necessary for discovery, requiring production of the evidence from the other
government entities pursuant to RCM 703(f)(l) and

7. For ?les pertaining to PFC Manning within the possession, custody, or control of military
authorities that the Government is aware of and has searched for Brady material, Trial Counsel
must turn over to the Defense any infonnation that is obviously material to the preparation of the
defense. This does not mean that the Government must search for information material to the
preparation of the defense without a speci?c discovery request. Where a request is necessary, it
is required to trigger the trial counsel?s duty to disclose as a means of specifying what must be
produced. Without such a request a trial counsel might be uncertain as to the extent of the duty
to obtain matters not in his/her immediate possession. Any request should state with reasonable
speci?city what materials are sought. See analysis to RCM 70l(a).

Conclusions of Law:

1. Files under the possession, custody, or control of military authorities. The Govemment
will seek out and identify such ?les regarding PFC Manning that involve investigation, damage
assessment, or mitigation measures. By 20 July 2012 the Government will notify the Court
with a status of whether it anticipates any government entity that is the custodian of classi?ed
evidence that is the subject of the Defense Motion to Compel will seek limited disclosure IAW
MRE 505(g)(2) or claim a privilege IAW MRE 505(c) for the classi?ed infonnation under that
agency's control. Also by 25 July 2012, if the relevant agency claims a privilege under MRE
505(c) and the Government seeks an in camera proceeding under MRE 505(i), the Govemment
will move for an in camera proceeding IAW MRE 505(i)(2) and (3) and provide notice to the
Defense under MRE For all such ?les where a privilege under MRE 505(c) is not

0 0 25733




claimed, by 3 August 2012 the Government will disclose such ?les regarding PFC Manning that
involve investigation, damage assessment, or mitigation measures to the Defense or, submit them
to the Court for in camera review under RCM 701 or for limited disclosure under MRE

505(g)(2)-

2. Aligned Agencies:

DOJ Defense moves to compel documents from DOJ related to the accused,
WikiLeaks, and/or alleged leaks because the Government collaborated with federal prosecutors
within DOJ during the investigation of the accused. Such ?les are not discoverable under RCM
701(f). As such, the defense has not shown relevance and necessity for production of DOJ ?.les
under RCM 703(1).

the FBI and DSS are aligned agencies that conducted an investigation of PFC
Manning in conjunction with CID. The Government advised the Court it had disclosed the entire
DSS investigation to the Defense. The Court ?nds the Defense has shown that the FBI ?le
(minus grandjury testimony) to the extent relevant to an investigation of PFC Manning, is
material to the preparation of the Defense to the extent that it is relevant and necessary for
production under RCM 703(f). The Court will review the FBI Impact Statement in camera to
detennine whether it is material to the preparation of the defense to the extent relevant and
necessary to require production for disclosure. The Government will immediately begin the
process of producing the FBI investigative ?le and impact statement IAW RCM
By 25 July 2012 the Government will notify the Court with a status of whether it anticipates any
government entity that is the custodian of classi?ed evidence that is the subject of the Defense
Motion to Compel will seek limited disclosure IAW MRE or claim a privilege IAW
MRE 505(c) for the classi?ed information under that agency?s control. Also by 25 July 2012, if
the relevant Government agency claims a privilege under MRE 505(c) and the Government
seeks an in camera proceeding under MRE 505(i), the Government will move for an in camera
proceeding IAW MRE 505(i)(2) and (3) and provide notice to the Defense under MRE
For all such ?les where a privilege under MRE 505(c) is not claimed, by 3 August
2012 the Government will disclose such ?les regarding PFC Manning that involve investigation,
damage assessment, or mitigation measures to the Defense or, submit them to the Court for in
camera review under RCM 70l(g) or for limited disclosure under MRE 505(g)(2).

NLT 3 August 2012, The Government will provide the Court with the
damage assessment for in camera review. The Government has stated in its briefs that ONCIX
is not an aligned agency but has not asked the Court to reconsider the portion of the 23 March
2012 ruling stating that it was.

CIA The Court has conducted an in camera review of the WikiLeaks Task Force
Damage Assessment and the proposed Government substitute under IAW MRE 505(g)(2). The

Court's ruling with respect to this damage assessment is issued as a separate Appellate Exhibit.

3. Other.

0 0 25734

DOS The Court granted the Govemment?s request for 30 days to respond to the
Defense Motion to Compel DOS documents. On 9 July 2012 the Government will identify
which ?les exist and provide its position to the Court IAW the Court?s order of 8 June 2012.

17 April 2012 HQDA file The Government alleges there is no What, if any,
?le exists will be addressed at the Article 39(a) session on 25 June 2012.

Government Evidence in Merits/Sentencing NLT 3 August 2012, the Government
shall disclose evidence it will introduce on the merits and during sentencing.

Interagency Committee Review, President?s Intelligence Advisory Board, and House
of Representative Oversight Committee. The Defense moves to compel the Government to
conduct Bran)? searches of the ?les of these entities. These are non-aligned entities who have
had no interaction of or involvement with the Prosecution or the Criminal Investigation in this
case. Their ?les are not readily available to the Prosecution. The Prosecution has had no access
to these entities or their ?les. Although the Defense has made a speci?c request that the Court
compel the Government to conduct a Brady search of these ?les, the Court ?nds that the ?les of
these entities are too attenuated and beyond the outer parameters of the core ?les the Prosecution
must search for Brady. The Government advised the Court that it had an ethical obligation to
search the President?s Intelligence Advisory Board for Brady material because it had reason to
believe the ?les contained Brady material. As such, the Government will conduct a Brady
search of the President?s Intelligence Advisory Board ?les. The Court does not compel the
Prosecution to search the ?les of the Interagency Committee Review or the I-louse of
Representative Oversight Committee.

RULING: The Defense Motion to Compel Discovery #2 is Granted in part as set forth above.

5/

DENISE R. IJND
COL, JA
Chief Judge, 1? Judicial Circuit

So ORDERED: this 22nd day of June 2012.

I

25735

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: FBI IMPACT
STATEMENT -

MRE 505(g)(2)
MANNING, Bradley E., PFC SUBSTITUTION
U.S. Army,
Headquarters and Headquarters Company,
U.S. Army Garrison, Joint Base Myer- DATED: 19 July 2012
Henderson Hall, Fort Myer, VA 22211

The Government ?led an ex parte motion for in camera review by the Court IAW MRE

S05(g)(2) to determine whether limited voluntary disclosure by a proposed Government substitution for
the classi?ed FBI Impact Statement shall be disclosed to the Defense or whether disclosure of the
classi?ed information itself is necessary to enable the accused to prepare for trial. The Government
prepared a redacted ?ling for the Defense. Defense avers the FBI Impact statement should be
discoverable under Brady, RCM 70l(a)(6), and is material to the preparation of the defense to the extent
relevant and necessary for production under RCM 703(t).

The Court has conducted an in camera review of the classi?ed infonnation considering the

factors requested by the Defense in its 6 July 2012 submissionrn)

What is the extent of the redactions/substitutions?

Has the Government narrowly tailored the substitutions to protect a Governmental interest that
has been clearly and speci?cally articulated?

Does the substitution provide the Defense with the ability to follow-up on leads that the original
document would have provided?

Do the substitutions accurately capture the information within the original document?

Is the classi?ed evidence necessary to rebut an element of the 22 charged offenses, bearing in
mind the Govemment?s very broad reading of many of these offenses?

Does the summary strip away the Defense?s ability to accurately portray the nature of the charged
leaks?

Do the substitutions prevent the Defense from fully examining witnesses?

Do the substitutions prevent the Defense from exploring all viable avenues for impeachment?
Does the Government intend to use any of the infonnation from the damage assessments? If so,
is this infonnation limited to the summarized document provided by the Government? If the
information intended to be used by the Government is not limited to the summarized document,
does the Defense in fairness need to receive the classi?ed portions of the documents to put the
Govemment?s evidence in proper context?

Does the original classi?ed evidence present a more compelling sentencing case than the
proposed substitutions by the Government?

Do the proposed substitutions prevent the Defense from learning names of potential witnesses?
Do the substitutions make sense, such that the Defense will be able to understand the context?
Is the original classi?ed evidence necessary to help the Defense in fonnulating defense strategy
and making important litigation decisions in the case?

2.72-


1
PAGE


0 0 25736

11) Is it unfair that the Government had access to the unclassi?ed version of the damage assessment
and the Defense did not? Does that provide a tactical advantage to the Government?

The Government substitute is a redacted version of the original that discloses Brady and RCM
701(a)(6) material.

The Government has advised the Court that nothing in the FBI Impact Statement that has not
been disclosed to the Defense will be used by the Government or by any Government witness during any
portion of the trial. As such, the remainder of the FBI Impact Statement is not material to the preparation
of the defense or relevant and necessary for production under RCM 703(f).

The FBI Impact Statement substitution meets the Govemment?s discovery obligations under
Brady and RCM 701(a)(6) to disclose evidence tending to reasonably negate the guilt of the accused to an
offense charged, reduce the degree of guilt to an offense charged, or reduce the punishment.

The Government is ordered that no portion of the FBI Impact Statement not disclosed to the
Defense will be used by the Government or any Government witness during any portion of the trial. This
includes rebuttal, rule of completeness, and sentencing if Defense introduces or references anything in the
substitution.

The substitution is sufficient for the Defense to adequately prepare for trial and represents an
appropriate balance between the right of the Defense to discovery and the protection of specific national
security information.

RULING: The Classi?ed motion by the Government to voluntarily provide limited disclosure under
MRE 505(g)(2) for the FBI Impact Statement is GRANTED.



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

Ordered this 19th day ofJuly 2012.

25737

COURTMEMBER
SUPPLEMENTALOUESTIONNAIRE
(PLEASEPRINT CLEARLY)

This questionnaire is submitted to detailed court members under Rule for CourtsMartial912(a)(l), Manual
for CourisMariial.Its purpose is to provide counsel with general information relevant toamember's
participation inaparticular case.This information will be made available to trial and defense counsel before
trial so that they may have general information aboutamember's background before assembly ofthe court
and is also available to the military ^udge.Disclosureofthis information is voluntary.Nondisclosure may
requireamember to provide such matters at trial. By requesting this information onaonetime basis before
you actually serve asamember, repetitive questions and unnecessary delay can be avoidcd.Your responses
sitould be forwarded to the Office ofthe Staff Judge Advocate,ATTN: Chief, Criminal Law Division.
1. Name:
2. Rank:

3. Dateofrank:

4. Sex:

5. Race:

6. Current Unit Assignment:
7. Present Duty Position and Description:^
8. Length ofPresent Assignment:
9. Name and Title ofSupcrvisor:^
10. Do you now have, or have you ever had the authority to train, supervise, assign, evaluate, or discipline
others^ oY^^ o N ^ I f ^ . ^ , please describe your feelings conceming the importance of mentoringjunior
enlisted:

I I . Why do junior enlisted need to be mentored^

12. Have you ever hadaSIPRNET account or worked onaclassified computers oV^^ o N ^
13. Have you ever handled classified information in any form7 oY^:^ o N ^
14. Have you ever printed classified information or saved classified information toaCD or other removable
mediae oY^^ o N ^
15. Have you everworkedinaSensitiveCompartmentedInformationFacility(SCIF)7 oY^^ o N ^
16. Have you ever worked inafacility that authorized open storage of classified infort^ation7 oY^^ o N ^
^

APPELLATEEXHIBIT^^^
PAGEREFERENCED;
^
PAGE
OF
PAGES

liifcie

17. Have you ever removed claKfied information from a government mMity? • YES o No

25738

18. Have you ever been an authorized courier ofclassified information? • YES • No
19. Have you ever seen another Soldier been denied a security clearance or had a security clearance
revoked? • YES • No If YES, please indicate when and the reason for the denial or revocation:

20. Have you ever seen another Soldier's security clearance be revoked due to signs of mental or emotional
instability? • YES • No If YES, please describe:

21. Have you deployed and come in contact with the enemy? • YES • No If yE^, please give dates and
locations:

22. (Officers only) Have you had any enlisted service? • YES • No I f YES, please indicate:
DATES

HIGHEST RANK

YEARS

23. Have you ever been employed as a civilian? o YES o No If yE5, please indicate the following for each
DATES

LENGTH OF
EMPLOYMENT

NAME & NATURE
OF BUSINESS

TITLE & DUTIES

24. Is English your first language? • YES • No If NO, what was your first language and when did you
begin speaking English?
25. What is the primary language spoken in your home?
26. Do you have any difficulty in reading or writing the English language? • YES • No If YES, please
explain:
27. Do any dependants live in your household? • YES • No If yes, please list their relationship to you, as
well as their sex and age:

25739

28. Please indicate your curren^marital status:
• SINGLE (NEVER BEEN MARRIED)
• DIVORCED (HOW LONG?)
• WIDOWED (HOW LONG?)

• SEPARATED (HOW LONG?)
• DIVORCED/REMARRIED (HOW LONG?)
• WIDOWED/REMARRIED (HOW LONG?)

29. Current and/or former spouse's employer, job title, description and duties:

30. Summary of current and/or former spouse's employment for past ten years (if any):
DATES

LENGTH OF
EMPLOYMENT

NAME & NATURE
OF BUSINESS

TITLE & DUTIES

31. What special recognition, awards, medals or commendations did your current and/or former spouse
receive?
32. Has your current and/or former spouse deployed and come in contact with the enemy? • YES • No
If YES, please give dates and locations:

33. Is your current and/or former spouse a high school graduate? • YES • N O
34. Has your current and/or former spouse attended any technical or trade schools or college, as an
undergraduate or graduate student? • YES • No I f YES, please indicate the following for each school
attended:
DATES

N A M E OF SCHOOL

LOCATION
(CITY/STATE)

MAJOR

MINOR

DEGREE EARNED

35. Has your current and/or former spouse attended any military training/education? • YES • No If YES.
DATES

N A M E OF
SCHOOL

LOCATION
(CITY/STATE)

LENGTH

TOPIC

DEGREE EARNED

36. How many individuals l i v ^ ^ the household in which you were ra^^?
relationship to you(^.^.,father, stepbrother, etc.)?

25740

What was their

37. Have any ofthose listed above ever deployed and come in contact with the enemy? oYES oNo
If
please give dates and locations for each:

38. Please list the civil clubs, societies, professional associations, or other organizations to which younow
belong, orto which you have belonged in the past:

39. Have you ever served as an officer or heldapositionofleadership in any ofthese organizations?
oYES oNo If I^.^, please explain:

40. What are your hobbies:

41. What do you en^oy doing in your spare time:

42. What were the last three books you have read: (1)
^^^^

43. In general, what types ofbooks do you most oHen read?
44. Have you ever readabook about releasing classified information or any similar action? oYES oNo
If i ^ . ^ , which book,who was the author,what trial or crime and why were you interested?

45. What newspapers do you regularly read or subscribe to:
46. What magazines,joumals or otherperiodicals do you regularly read or subscribe to:

47. Have you everwrittenaletterto the editor? oYES oNo If l^.^, about what issue did you write and why
did you decide to write the letter:

48. D o y o u u s u a l l y r e a d f o r

oENTERTAINMENTPURPOSES oBUSINESS PURPOSES OOTHERPURPOSES?

49. How often do you listen to the radio, which stations and which programs do you usually listen to?

50. What television shows do you watch regularly: (1)
^^^^

51. What is your main sourceofnews?

25741

52. Which television news programs do you usually watch for local, state, national and world news?

53. Are you most interested in Local, State, National or World news?
54. Do you typically watch any news magazine programs (Dateline NBC, 20/20, 60 Minutes, 48 Hours,
etc.)? • YES • No If YES, which programs?
55. How often do you go to see a movie?
56. In general, what types of movies do you most prefer (i.e. romantic comedies, dramas, action, mysteries,
science fiction, etc.)?

57. What are the last three movies you went to see: (1)
(2)
(3):
58. On social issues, are you:
• VERY CONSERVATIVE

• CONSERVATIVE

• MODERATE

• LIBERAL

• VERY LIBERAL

Please explain:

59. Have you ever signed a petition? • YES • No If YES, please tell us what were the issue(s):

60. Have you ever participated in a march, protest or demonstration? • YES • No If YES, please tell us
when and what were the issue(s):

61. What are your thoughts, feelings or opinions, in general, about psychiatrists, psychologists, social
workers, counselors or other mental health professionals?

62. Do you do any volunteer work? • YES • No If F^^, with which organizations do you volunteer?

63. Do you know anyone who has experienced any type of abusive relationship (sexual abuse, physical
abuse, verbal abuse, emotional/psychological abuse, etc.)? • YES • No If YES, please explain:

25742

64. Have you, any family merrflf or close friend ever been accused, a i ^ f e d or convicted of a criminal
offense? • YES • No If YES, please explain:

65. Do you know anyone who has been in jail or who has been to prison? • YES o No I f FE^, please
explain:

66. What is your personal opinion about the military justice system?

67. Do you believe the military justice system is fair? a YES o No Please explain your answer:

68. Do you believe the military justice system should be influenced by outside civilian pressures to send a
message in certain cases? • YES • No Please explain your answer:

69. Have you ever watched any criminal trial (civilian or military) in person? • YES o No If FE^, please
explain circumstances:

70. What is the first thing that comes to your mind when you think of a:
Criminal Defense Attorney:

Prosecuting Attorney:

71. What criminal cases have you followed in the media and why did you follow those cases?

72. What is your opinion about the accuracy of media reports about crimes, in general?

73. The Accused in this case is PFC Bradley Manning. The website WikiLeaks is also involved in this case.
Do you know, or believe you know, anything about this case, from any source, including the newspaper, radio,
television or discussions with others? • YES • No I f YES, from which sources, what have you heard, read,
seen or talked about conceming this case and what is your reaction to that information?

25743

74. Based on what you have heard, read, seen or discussed conceming this case,what opinions have you
formed conceming the people involved?

75. Based on what you have heard, read, seen or discussed conceming this case, have you formed any
opinions on how the case is being handled and what the outcome should be?

76. Have you ever counseledaSoldierregardinghis^er sexual preference? oYES oNo If FE^, please
explain what prompted your counseling ofthe Soldier:

77. Have you ever initiated UCMJ action againstaSoldier based on homosexual conduct? oYES o N o
IfFE^, please explain what prompted you to initiate UCMJ action:

78. Have you ever initiated administrative separation action againstaSoldier based on his^er sexual
preference?oYES oNo I f FE^, please explain what prompted you to initiate administrative separation
action:

79. Have you ever recommended separation ofaSoldier based on his her sexual preference? oYES oNo
If FEi^, approximately how many times?^
80. Do you agree with therepealofDADT? Why or why not?

81. Have you seen any negative impact from therepealofDADT? Ifso,what?

82. Have you seen any positive impact from therepealofDADT? If so, what?

25744

83. Are any members ofyour immediate family homosexual? oYES
84. Are any ofyour close fi^iends homosexual? oYES oNo
85. Are you familiar with Gender Identity Disorder? oYES oNo I f FE.^, please how you are familiar:

86. What do you think when you seeacross-dresser on the street?

87. Have you deployed to Iraq or Afghanistan? oYES oNo I f ^ ^ , please skip to question 90. IfFE^,
please provide the date(s)andlocation(s)ofyour deployment:

88. How would you characterize your deployment experience?

89. Did you work with Department ofState personnel during your deployment? oYES oNo If FE.^, what
was your attitude towards Department ofState personnel?

90. Please indicate your level ofagreement or disagreement to the following statement: Ifthe case isahigh
profile case, it is important to ensure the punishment is severe to send the appropriate message.
O
O

STRONGLY AGREE
STRONGLYDlSAGREE

O
O

MODERATELVACREE
MODERATELYDlSAGREE

O
O

SLIGHTLYAGREE
SLIGHTLYDlSAGREE

Please explain your answer:

91. Asaresult ofyour having been asked to fill out this questionnaire, have you formed any opinions about
this case? oYES oNo If FE.^, please explain:

92. Is there anything that was not asked that you believe is important to know about you? oYES oNo
If FE^, please explain:

93. Is there anything that you would like to discuss privately with the court? oYES oNo If FE.^, please
explain:

Tx

25745

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Subject: RE: Government Filing - Request for Court Order (UNCLASSIFIED)
From: "David Coombs"
Date: Mon, Aug 20, 2012 7:40 pm

To: "'Lind, Denise COL usmmv

"'Hurley, Thomas MAJ OSD ONIC Defense"'
"'Tooman, Joshua CPT USARMY
"'Morrow, JoDean Ill CPT USARMY USAMDW
"'Whyte, Hunter CPT USARMY

on Elten, Alexander \(Alec\) CPT USARMY

. "'Ford, Arthur Jr CW2 USARMY

"'Williams, Patricia A CIV

"'Jefferson, Dashawn MSG USARMY
"'Moore, Katrina SFC USARMY
'Overgaard, Angel CPT USARMY

"Fein, Ashden MAJ USARMY













Ma'am,

. The Defense is not claiming a privilege. However, we would maintain that
the testimony from Capt. Richardson, LTC Russell, and LCDR Weber is not
relevant to PFC Manning's treatment while at Quantico. None of these
individuals spoke to anyone from Quantico. To the extent the Quantico
Brig relied upon conduct by PFC Manning in Kuwait to justify his custody
status, it is based upon documentation that the Government has provided to
the Defense in discovery. The Government is certainly free to introduce

this documentation. Anything else, however, is outside of what Quantico
would have considered in making its custody determination.

v/r
David

David E. Coombs, Esq.

Law Of?ce of David E. Coombs

11 South Angeli Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



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

APPELLATE

?--?Origina| Message-?-?? PAGE REFER NC ED:

8/26/2012

PAGE PAGES

Workspace Webmail Print Page 2 of 4
. . 25747

From: Lind, Denise COL USARMY (us)

Sent: Monday, August 20, 2012 4:48 PM

To: Lind. Denise COL USARMY Fein, Ashden MAJ USARMY MDW (US)

Cc: David Coombs; ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua
CPT USARMY Morrow, JoDean (Joe) Ill CPT USARMY USAMDW Whyte,
Hunter CPT USARMY von Elten, Alexander (Alec) CPT USARMY

Ford, Arthur Jr CW2 USARMY Williams, Patricia A CIV

Jefferson, Dashawn MSG USARMY Moore, Katrina SFC USARMY
Overgaard, Angel CPT USARMY (US)

Subject: RE: Government Filing - Request for Court Order (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

Counsel.

The Court has not received any noti?cation that the defense is claiming a
privilege under MRE 513.

Is the defense claiming a privilege under MRE 513 for the information the
government requests in its motion for a court order? If yes, at the 28-30
August 2012 article 39(a) session, be prepared to address whether an
exception to MRE 513 applies under MRE 513(3)(4)(6) and/or (7) apply and
whether the privilege is waived under RME 510.



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



From: Lind, Denise COL USARMY (US)

Sent: Monday, August 20, 2012 4:15 PM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: David Coombs; ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua
CPT USARMY Morrow, JoDean (Joe) Ill CPT USARMY USAMDW Whyte,
Hunter CPT USARMY von Elten, Alexander (Alec) CPT USARMY
Ford, Arthur 0 Jr CW2 USARMY Williams, Patricia A CIV

Jefferson, Dashawn MSG USARMY Moore, Katrina SFC USARMY
Overgaard, Angel CPT USARMY (US)

Subject: RE: Government Filing - Request for Court Order (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

Counsel,
I have it under advisement.


DENISE R. LIND

8/26/2012



Workspace Webmail Print . . Page 3 of 4

25748

COL, JA
Chief Judge, 1st Judicial Circuit



From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Monday, August 20, 2012 4:01 PM

To: Lind, Denise COL USARMY (US)

Cc: David Coombs; ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua

5 CPT USARMY Morrow, JoDean (Joe) Ill CPT USARMY USAMDW Whyte,
Hunter CPT USARMY von Elten, Alexander (Alec) CPT USARMY

Ford, Arthur Jr CW2 USARMY Williams, Patricia A CIV

Jefferson, Dashawn MSG USARMY Moore, Katrina SFC USARMY
Overgaard, Angel CPT USARMY (US)

Subject: Government Filing - Request for Court Order (UNCLASSIFIED)

Ma'am,

On Thursday, 46 August, the United States, through CPT Overgaard,
submitted the attached motion to the Court, but did not receive

acknowledgment from the Court or defense. Could you and the defense
please confirm receipt? Thank you.


MAJ Fein

-??--Original

From: Overgaard, Angel CPT USARMY (US)

5 Sent: Thursday, August 16, 2012 8:15 PM

To: Lind, Denise COL USARMY Fein, Ashden MAJ USARMY MDW (US)

Cc: David Coombs; ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua

CPT USARMY Morrow, JoDean (Joe) Ill CPT USARMY USAMDW Whyte,
Hunter CPT USARMY von Elten, Alexander (Alec) CPT USARMY

Ford, Arthur Jr CW2 USARMY Williams, Patricia A CIV

Jefferson, Dashawn MSG USARMY Moore, Katrina SFC USARMY (US)

3 Subject: Government Filing - Request for Court Order (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

Ma'am:

Attached is a government motion requesting the Court order the Accused's
mental health professionals to speak with and disclose their notes to the
prosecution. A draft order is also attached.

Certain mental health professionals of the Accused, in particular, two on
the prosecution's Article 13 witness list, will not speak with the

3 prosecution without either a waiver or a court order. On Tuesday, the

prosecution asked the defense to provide a waiver. On Wednesday, the
defense informed the prosecution that we would need to request a Court
2 Order.

2//email05 8/26/2012

- Workspace Webmail Print Page 4 of 4
. . 25749

Thank you.

VR

ANGEL M. OVERGAARD

CPT, JA

Trial Counsel, MDW
Classi?cation: UNCLASSIFIED

Caveats: NONE

Classi?cation: UNCLASSIFIED
fb Caveats: NONE


Caveats: NONE

Copyright 2003-2012. All rights reserved.

http://email05 |INBOX.Sent_Items. .. 8/26/2012

25750

Appellate Exhibit 278
9 pages
classified
"SECRET"
ordered sealed for Reason 2
Military Judge's Seal Order
dated 20 August 2013
stored in the classified
supplement to the original
Record of Trial

25751

Appellate Exhibit 278,
Enclosure 1
has been entered into
the record as
Appellate Exhibit 178,
Enclosure 1

25752

Appellate Exhibit 278,
Enclosures
has been entered into
the record as
Appellate Exhibitl78,
Enclosures

25753

Appellate Exhibit 278
Enclosures
l^pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20 August 2013
stored in the classified
supplement to the original
Record ofTrial

25754

Appellate Exhibit 278,
Enclosures
has been entered into
the record as
Appellate Exhibitl78,
Enclosures

25755

UNCLASSIFIED//FOUO
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 Evidence
(Computer-Generated Records)
Enclosures 5-6
3 August 2012

See Attached CD

UNCLASS1FIED//FOUO

25756

Appellate Exhibit 278
Enclosures 5-6
(Attachment)
have been entered into
the record as a CD/DVD
and v^ill be maintained
with the original
Record of Trial

25757

UNCLASSIFIED//FOUO
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 Evidence
(Computer-Generated Records)
Enclosures 5-6
3 August 2012

See Attached CD

UNCLASS1FIED//FOUO

25758

Appellate Exhibit 278
Enclosures 5-6
(Attachment)
have been entered into
the record as a CD/DVD
and v^ill be maintained
with the original
Record of Trial

25759

Appellate Exhibit 278,
Enclosure7
has been entered into
the record as
prosecution Exhibit 1^1

25760

Appellate Exhibit 278,
Enclosure8
has been entered into
the record as
prosecution Exhibit^l

25761

Appellate Exhibit 278
Enclosures
2pagesandlCT^
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

25762

Appellate Exhibit 279
has been entered into
the record asaCT^^T^^T^
and will be maintained
with the original
Record ofTrial

25763

Appellate Exhibit 280
has been entered into
the record asaCT^^f^^T^
and will be maintained
with the original
Record ofTrial

25764

Appellate Exhibit 281
ICT^
ordered sealed forReason7
(government)
Military Judge's Seal Order
dated20August2013
stored in the original Record
ofTrial

25765

UNITED STATES OF AMERICA
RUEING^ Prosecution Motion
ToAdmit Evidence

v.
Manning, Bradley E.
PFCU.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
Fort Myer,Virginia 22211

2^An^nst20f2

1. The Covernment moves to pre admit the following evidence enclosed to Appellate Exhibit
278:
Enclosure5: OSCI^ser Information Files (bmanning) with attestations
Enclosure6: OSCL^ser Information Files (bradass87^ with attestations
Enclosure 7: OSC Logs (bmanning^bradass87^ with attestations
Enclosure 8: Intelink .22^.40 Logs with attestations
Enclosures: Intelink Passport Account Information with attestation.
2. Covemment proffers that the above evidence is admissible as machine generated data and as
properly authenticated business records.
3. Oefense objects on the ground that the keystroke searches by the custodian ofthe record are
testimonial statements and the resulting data are records of searches and are also testimonial
statements.
Findings ofFaet^
1. The data in Enclosures5^ 6^ and7were maintained by the CIA in electronically searchable
databases for business purposes. The data in Enclosures8and^were maintained by the NSA in
electronically searchable databases for business purposes.
2. The data was collected prior to or contemporaneous with the dates ofthe charged offenses
and was maintained by the entity for business purposes before the query for information by law
enforcemenL
TheEaw^
1. The Si^th Amendment precludes testimonial hearsay from coming into evidence against an
accused without cross-examination of the declarant unless(l)the declarant is unavailable and (2^
I

APPEEEATEEXHIB^T^^
PA^El^EFEl^ENCEO:
^A^E
OF
1^^^^

25766

the declarant was subject to prior cross examination. ^^.v.^^^^^^^,701^.T2^6(C.A.A.F.
2011)
2. Astatement is testimonial if made under circumstances which would lead an objective
witness reasonably to believe the statement would be available ^ r use atalater trial. A
document created solely for an evidentiary purpose made in aid ofapolice investigation is
testimoniak While formalized certificationsofresults in lab reporis are testimonials machine
generated data and printouts are not statements and^thus^ they are not hearsay. ^^^^^^^^,70^..!.
a t 3 0 1 ^ ^ ^ v ^ ^ ^ ^ ^ ^ ^ ^ , 6 5 ^ I 1 2 0 ( C A A F 2007)(affidavitfilled out byvictim of check
fraud pursuant to internal bank procedures admissible as non testimonial business record even if
later turned over to law enforcement.^.
Conclusions ofEaw^
1. The fact that information maintained onabusiness related database is pulled from that
database asaresult ofatyped in search query by the records custodian at the request ofalaw
enforcement query does not transform machine generated data intoatestimonial statement. It is
the nature of the underlying data at issue not the form ofthe query^the fields of the query^or
who made the query that determines whether the information is machine generated^astatement^
oratestimonialstatemenL
2. I^nlike the cover memorandum and results certification that were held to be testimonial
statements in^^^^^^^^the machine generated data offered for admission by the Covemment in
this case contains no additional representations or certifications that were not machine generated.
3. The recordsoffered for admission by the Covernment are machine generated and not
statements. They are properly authenticated. Ifthe Covemment offers evidence to show their
relevances the exhibits are admissible.
SoOrderedthis2^^^dayofAugust2012.

OENISERLINO
C0L^.1A
Chief .ludge^l^^.ludicial Circuit

25767

UNITEDSTATESOF AMERICA
RUEING^ Defense Motions
Close Court to Eitigate
Admissibility ofMRE404(h)
Evidence

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

2^An^nst2012

The Covemment moves to makeapreliminary determination on the admissibility of
evidenceofthreecrimes^wrongs^ or acts^ under l^RE404(b)and on the use of such evidence to
rebut the offer ofaperiinent character trait under ^RE404(a^. The evidence the Covemment
seeks to admit is:
1

MRE404(B)aet1^On28.1une 2008^ SFC Brian^adrid observed postings bythe
accused onYouTube using ^^bu^:^words^^ such as top secrete secrete classified and SCIF^
against his training. As correctivetraining^ SFC Madrid required the accused to givea
presentation to the platoon at formations presentaPowerPoint presentation to SFC
Madrid and prepareawritten product. The accused^spresentation to the platoon
discussed information security^proper handling ofinformation^aSoldier^sobligation to
protect and not expose classified materials the possibility thataSoldier^sdisclosure that
he or she has access to classified material may be dangerous to the Soldiers and that
enemy forces are trying to collect information on the I^.S. military. Theaccused^s
written product and PowerPoint presentation defined secret information and identified the
type ofpeople who try to collect information for use against the L^nited States^ such as
foreign governments^ enemies^ spies^ hackers^ etc.

2 MRE404(h)act2^
3 MRE404(h)aet3:
The Defense moves to close the court during the Article 3^(a) sessions of the couri during
which evidence is adduced^ argument is made^ and the court^sruling announced with respect to
on the Covernment^s^RE404(b)motion regarding ^RE404(b)acts2and3above because
this case has received and continues to receive media attention and public airing the facts giving
rise to this motion will impact PFC l^arming^sability to receiveafair trial and there is no
alternative to closure that will protect against that harm.
TheEaw^
1. The First Amendment protects the public^sright to an open trial. The Si^th Amendment
protects the accused^srighttoapublic trial. Both Constitutional Amendments andRCM 806
provide that courtsmartial shall be open to the public unless(1^thereisasubstantial probability
that an overriding interest will be prejudiced if the proceedings remain open^(2^closure is no
1

APPELLATE EXHIBIT.
PAGE REFERENCED:
PAGE
OF
PAGES

25768

broader than necessary to protect the overriding interest; (3) reasonable alternatives to closure
were considered but found to be inadequate; and (4) the military judge makes case-specific
findings on the record justifying closure US. v. Hershey, 20 M.J. 433 (C.M.A. 1985); ABC Inc. v.
Powell, 47 M.J. 363, 365 (C.M.A. 1997).
2. The trial court must consider alternatives to closure even if not offered by the parties. Trial
courts must take every reasonable measure to accommodate public attendance at criminal trials.
Presley v. Georgia, 558 U.S. 209 (2010).
Conclusions of Law:
1. The Court takes judicial notice that there has been consistent and extensive media coverage
of this case.
2. The Defense has demonstrated that preventing the fact-finder from pretrial bias from pretrial
publicity of the underlying facts of uncharged conduct by the accused as offered by the
Government as MRE 404(b) acts 2 and 3 is an overriding interest likely to be prejudiced if the
proceedings remain open.
3. Closure of the Article 39(a) session during which the Government's MRE 404(b) motion is
litigated for MRE 404(b) acts 2 and 3 is more broad than necessary to protect that interest. There
are reasonable alternatives to closing the proceedings.
4. Identification of the underlying facts of MRE 404(b) acts 2 and 3 are not necessary during
oral argument for the parties to litigate the Government's MRE 404(b) motion regarding the
reasons why the evidence should or should not be admitted or why the evidence is or is not
admissible under MRE 403.
RULING: The Court shall remain open during the litigation of the Government's MRE 404(b)
motion. The parties shall identify the acts at issue as MRE 404(b) act 2 and MRE 404(b) act 3
without going into the underlying specifics.
So Ordered this 29"' day of August 2012.
^

^

-

^

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

3 rill

UNITED STATES



MANNING, Bradley E., PFC

U.s. Army.

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

25769

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT



RULING: GOVERNMENT
MOTION FOR MRE 50S(g)(2)
REDACTIONS - CIA WL
TASK FORCE REPORT ON
DISCRETE MATTER

DATED: 30 August 2012



On 3 August 20l2, the Government ?led a classi?ed motion moving the Court to conduct an ex

parte review of the CIA WL Task Force Report (CIA report) on a Discrete Matter and to authorize a
substitution for the discoverable classi?ed information in the CIA report IAW MRE 50S(g)(2). The Court
conducted an in camera review of both the original CIA report and the proposed substitution. After
conducting the in camera review, on 29 August 2012, the Court and the Government held an ex parte in
camera Article 39(a) session at a secure location where classified information may be discussed.

The concerns raised by the Court in the ex parte in camera Article 39(3) session have been

addressed by the Government. In coming to this ruling, the Court has considered the factors requested by
the Defense in its 21 August 2012 submissionWhat is the extent of the redactions/substitutions?

Has the Government narrowly tailored the substitutions to protect a Governmental interest that
has been clearly and speci?cally articulated?

Does the substitution provide the Defense with the ability to follow?up on leads that the original
document would have provided?

Do the substitutions accurately capture the information within the original document?

Is the classi?ed evidence necessary to rebut an element of the 22 charged offenses, bearing in
mind the Govemment?s very broad reading of many of these offenses?

Does the summary strip away the Defense?s ability to accurately portray the nature of the charged
leaks?

Do the substitutions prevent the Defense from fully examining witnesses?

Do the substitutions prevent the Defense from exploring all viable avenues for impeachment?
Does the Government intend to use any of the infonnation from the damage assessments? If so,
is this information limited to the summarized document provided by the Government? If the
infonnation intended to be used by the Government is not limited to the summarized document,
does the Defense in fairness need to receive the classi?ed portions of the documents to put the
Govemment?s evidence in proper context?

Does the original classi?ed evidence present a more compelling sentencing case than the
proposed substitutions by the Government?

Do the proposed substitutions prevent the Defense from learning names of potential witnesses?
Do the substitutions make sense, such that the Defense will be able to understand the context?

APPELLATE EXHIBI lfzif?

PAGE REF
PAGE OF PAGES



0 25770

In) Is the original classi?ed evidence necessary to help the Defense in formulating defense strategy
and making important litigation decisions in the case?

n) Is it unfair that the Government had access to the unclassi?ed version of the damage assessment
and the Defense did not? Does that provide a tactical advantage to the Government?

The CIA Report Substitution, as redacted, meets the Government?s discovery obligations under
Brady and RCM 701(a)(6) to disclose evidence tending to reasonably negate the guilt of the accused to an
offense charged, reduce the degree of guilt to an offense charged, or reduce the punishment. The redacted
information not disclosed to the Defense is not favorable, material to the preparation of the defense, or
relevant and necessary for production under RCM 703(1).

The Government is ordered that no portion of the CIA Report not disclosed to the Defense will be
used by the Government or any Government witness during any portion of the trial. This includes
rebuttal and rule of completeness if Defense introduces or references anything in the substitution.

The substitution is suf?cient for the Defense to adequately prepare for trial and represents an
appropriate balance between the right of the Defense to discovery and the protection of speci?cally
identi?ed national security information that risks release of intelligence sources and methods.

RULING: The Classi?ed motion by the Government to voluntarily provide limited disclosure under
MRE 505(g)(2) for the CIA Report on a Discrete Matter is GRANTED.

SE R. I

COL, JA
Chief Judge, 1? Judicial Circuit

So ORDERED this 30th day of August 2012.

- . . 25771

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: GOVERNMENT

MOTION FOR MRE 505(g)(2)
REDACTIONS - DIA

RECORDS
MANNING, Bradley E., PFC
US Army,?
Headquarters and Headquarters Company,
U.S. Army Garrison, Joint Base Myer- DATED: 30 August 2012
Henderson Hall, Fort Myer, VA 22211

On 3 August 2012 and 17 August 2012, the Government ?led classi?ed motions moving the

Court to conduct an ex parte review of DIA Records classi?ed at the Secret or above level, IAW MRE
505(g)(2), and to approve proposed redactions. The Court conducted an in camera review of the original
DIA Records and the proposed redactions. After conducting the in camera review, on 29 August 2012,
the Court and the Government held an ex pane in camera Article 39(a) session at a secure location where
classi?ed information may be discussed.

The concerns raised by the Court in the ex parte in camera Article 39(a) session have been
addressed by the Government. In coming to this ruling, the Court has considered the factors requested by
the Defense in its 21 August 2012 submission.

a) What is the extent of the redactions/substitutions?

b) Has the Government narrowly tailored the substitutions to protect a Governmental interest that
has been clearly and speci?cally articulated?

c) Does the substitution provide the Defense with the ability to follow-up on leads that the original
document would have provided?

d) Do the substitutions accurately capture the information within the original document?

e) Is the classi?ed evidence necessary to rebut an element of the 22 charged offenses, bearing in
mind the Govemment?s very broad reading of many of these offenses?

0 Does the summary strip away the Defense?s ability to accurately portray the nature of the charged
leaks?

g) Do the substitutions prevent the Defense from fully examining witnesses?

h) Do the substitutions prevent the Defense from exploring all viable avenues for impeachment?

i) Does the Government intend to use any of the information from the damage assessments? If so,
is this information limited to the summarized document provided by the Government? If the
information intended to be used by the Government is not limited to the summarized document,
does the Defense in fairness need to receive the classi?ed portions of the documents to put the
Govemment?s evidence in proper context?

j) Does the original classi?ed evidence present a more compelling sentencing case than the
proposed substitutions by the Government?

k) Do the proposed substitutions prevent the Defense from learning names of potential witnesses?

I) Do the substitutions make sense, such that the Defense will be able to understand the context?

in) Is the original classi?ed evidence necessary to help the Defense in formulating defense strategy
and making important litigation decisions in the case?

APPELLATE EXHIBIT ?fa? 5
PAGE REFERENCED:
PAGE or PAGES





I

0 0 25772

n) Is it unfair that the Government had access to the unclassified version of the damage assessment
and the Defense did not? Does that provide a tactical advantage to the Government?

The DIA Records, as redacted, meets the Government?s discovery obligations under Brady and
RCM 701(a)(6) to disclose evidence tending to reasonably negate the guilt of the accused to an offense
charged, reduce the degree of guilt to an offense charged, or reduce the punishment. The redacted
infonnation not disclosed to the Defense is not favorable or material to the preparation of the defense
under MRE 701(a)(2).

The Government is ordered that no portion of the DIA Records not disclosed to the Defense will
be used by the Government or any Government witness during any portion of the trial. This includes
rebuttal and rule of completeness if Defense introduces or references anything in the substitution.

A substantial portion of the DIA Records is disclosed to the Defense. The redacted infonnation is
information that is not relevant to the case. An example would be a long email with a small paragraph
referencing this case. The part of the email addressing irrelevant subject matter is redacted. Other
redactions are to protect the release of sensitive national security information, to include intelligence
sources and methods. The substitution is sufficient for the Defense to adequately prepare for trial. It
represents an appropriate balance between the right of the Defense to discovery and the protection of
specifically identi?ed national security information that risks release of intelligence sources and methods.

RULING: The Classi?ed motions by the Government to voluntarily provide limited disclosure under
MRE 505(g)(2) for the DIA Records is GRANTED.

So ORDERED this 30th day of August 2012.



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

25773

UNITEDSTATESOF AMERICA

^

^

^
^

Manning, Bradley E.
PFCU.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
Fort Myer, Virginia 22211

)
^
^
)
^
^

Schedulin^Order

30Au^ust2012

1. The Court is currently scheduling Article 39(a)sessions with the following default schedule at
the request ofthe parties: two weeks for parties to file motions; two weeks for parties to file
responses; five days for parties to file replies; and one week for the Court to review all pleadings
before the start ofthe motions hearing. The time for filing replies was added af^er the first Article
39(a) session on 15 16March 2012 because the Court received reply briefs the day before that
session, the parties desire to continue to file replies, and the Court requires time to consider them.
2. Scheduling dates and suspense dates are set forth below. This schedule was coordinated with
the parties. The trial schedule will be reviewed and updated as necessary at each scheduled
Article 39(a) session.
a. Immediate Action (21Fehruary 2012 16March 2012)
h. Le^al Motions, excludin^Evidentiary Issues (29 March 2012-26 A^ril 2012)
c. Le^alMotions (lOMay 2012 8June 2012)
d. Interim Pretrial Motions (2 June 2012 25 June 2012)
e. PretrialMotions (7 June 2012 20 July 2012^
f. PretrialMotions(20July2012

30Au^ust2012)

^. Pretrial Motions f24 August 2012-I^Octoher 2012)
(A) Article 39(a):17-180ctober 2012
(1) Government Discovery for Information Owned hy the CIA, DHS and ODNI^
' On 25 July 2012, the prosecution requested leave until 14 September 2012 to disclose a subset group of information
owned by the Central Intelligence Agency (CIA), the Department of Homeland Security (DHS), and the Office of the
Director of National Intelligence (ODNI). On 26 July 2012, the defense filed an objection. On 26 July 2012, the
Court ordered the prosecution to file a supplemental pleading, stating with particularity the review and approval
procedures required prior to disclosure of information above the "secret" level and how that differsfromthe review
and approval procedures required prior to disclosure of information at or below the "secret" level. On 1 August 2012,
the Court granted the Government's request for leave until 14 September 2012 in part. The Court Ordered the
Government, upon receipt of agency approval, to immediately disclose discoverable classified information to the
Defense or to the Court lAW RCM 701(g)(2) or MRE 505(g)(2).

APPELLATE E X H I B l T j Z ^

aS^OBS-

25774

(A) Filing: 14September2012
(2) Government Discovery Disclosure to Court under RCM 701(g)(2) or MRE
505(g)(2) ofAllInformationSuh^ecttotheCourt^s22June
All Information Subject to the
2012 Rulin^^
(A) Filing: 14September2012
(3) Defense Witness List for SpeedyTrial, including Article 10
(A)Witness Lists: 24 August2012
(4) Government Chronology for SpeedyTrial, including Article 10
(A) Witness Lists: 26 September 2012
(5) Defense Updated Witness List for SpeedyTrial, including ArticlelO
(A) Filing:2October2012
(B) Response:9October2012
(C) Reply: 11October2012
(6) Defense Supplemental Article 13 Motion
(A) Filing:24August2012
(B) Response: 7September2012
(C) Reply: 14September2012
(7) Government Supplemental Article 13 MotionWitness List (if necessary)
(A)Filing:4September2012
(8) Court Member questionnaires
(A) ToDetailed Members and Alternates: 4September2012
(B) Suspense for Detailed Members and Alternates to Respond: 21 September 2012
(9) Disclosure to Defense, Disclosure to the Court under MRE 505(g)(2), Noti^cation
to the Court ofClaimofPrivilege under MRE 505(c), or Filing for^B^C^^^^^ Proceeding
IAWMRE505(i)with Notice to Defense(ifPrivilege is Claimed) for DOS Information
Sub^eettotheCourt^s19July2012Order
(A) Date: 14September2012
h. Pretrial Motions (26 September 2012-2Novemher 2012)
(A) Article 39(a): 29 October 2012 2November 2012
(1) Defense Additional Witness List ^2 for Article 13 Motion
(A) Witness List:26 September 2012
(B) Government Objections (if any): 16October2012
(C) Defense Motion to Compel (if any): 22 October 2012

^ On21August 2012,the Court Ordered the Government to specifically justify each proposed redaction forthe l^^l
file hyl4Septeniher 2012.

25775

(2) Defense Motion for SpeedyTrial, including Article 10
(A) Filing: 19September2012
(B) Response: 10October2^12
(C) Reply: 17October2012
(3) Government Witness List for Response to Defense Motion for SpeedyTrial,
including Article 10
(A)Filing:9Octobcr2012
(4) Defense Notice oflntent to Disclose Classified Information under MRE 505(h)
(From Subsequent Disclosures)
(A) Filing: 15 October 2012
(B) Response: 26 October 2012
(5) Witness List (Defense and Supplemental Government)
(A) Filing: 15October2012
(6) Defense Production of Government Reciprocal Discovery Request
(A) Date: 15October2012
(7) Defense Notice of Accused^sForum Selection and Notice ofPleasinWriting
(A) Filing: 15 October 2012
(8) Defense Notice ofits Intent to Offer the Defense ofLackofMental Responsibility
l A W R C M 701(h)(2)
(A)Filing:15October2012
(9) DisclosureofRCM914Material
(A) Date: 15October2012
i.

PretrialMotions (19 October2012 2Decemher2012^
(A) Filing: 19October2012
(B) Response: 2November2012
(C) Reply:9November2012
(D) Article 39(a): 27November2012-2December 2012
(1) Defense Supplemental ^2 for Article 13 Motion
(2) Defense Article 13 Motion (Article39(a) only)

^. Pretrial Motions (16Novemher 2012 14Decemher 2012)
(A) Filing: 16November2012
(B) Response: 30 November 2012
(C) Reply:5December2012

25776

(D) Article 39(a): 1014December2012
(1) Defense Witness List Litigation
(A) Government Objection to Defense Witnesses: 16November2012
(B) Motion to Compel Production: 30 November 2012
(C) Response: 5December2012
(2) GovernmentMotiontoCompelDiscovery(ifany)
(3) Defense Motion toCompelDiscovery^4(ifnecessary)
(4) Additional Requests for Judicial Notice
(5) Pre-O^^h^^^rionofExperts
(6) Motions ^^^^^^^^ (Supplemental, Including any Classified Information) (if
necessary)
k. PretrialMotions(7Decemher2012-18January2013)
(A)
(B)
(C)
(D)

Filing: 21 December 2012
Response: 4January2013
Reply:9January2013
Article 39(a): 14-18January2013

(1) Litigation Concerning MRE 505(h)and MRE 505(i) (If notpreviously resolved)
(A) Filing: 7December2012
(B) Response: 21 December 2012
(2) Supplemental Government Witness List(ifnecessary)
(A) Date: 14December2012
(3) Production ofCompelled Discovery from Defense
(A) Date: 14December2012
(4) Grunden Hearing for Government Classified Information
(5) Voir Dire O^^^^^^^^^Elyer,Findings/Sentence Worksheet, All CMCOs
(A) Filing for Court Review: 4January2013
1. PretrialMotions (28 29 January 2013)
(1) Grunden Hearing for Defense Classified Information
(2) Completion ofSecurity Clearance Checks for Witncsses(as necessary)

4

25777

m.Trial hy Members (30 January 2013 22 Fehruarv 2013^
(1) Voir Dire: 30 January 2013 31 January 2013
(2) Trial:4February 2013-15 March2013
So Ordered this 30th day of August2012.

^ISERLIND
COL,JA
Chief Judge,1^^ Judicial Circuit

25778

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

RULING: Government Motion:
MRE 404(b) Evidence
Admissibility

30 August 2012

The Government moves to make a preliminary determination on the admissibility of three
instances of crimes, wrongs, or acts, under MRE 404(b) and on the use of such evidence to rebut
the offer of a pertinent character trait under MRE 404(a). Defense opposes.
Findings of Fact:
MRE 404(b) act 1: June 2008 internet posting by the accused and corrective training.
1. The Government proffers that on 28 June 2012, SFC (Ret) Brian Madrid, the accused's AIT
platoon sergeant, observed postings by the accused on YouTube using "buzzwords" such as top
secret, secret, classified and SCIF, against his training. As corrective training, SFC Madrid
required the accused to give a presentation to the platoon at formation, present a PowerPoint
presentation to SFC (Ret) Madrid and prepare a written product. The accused's presentation to
the platoon discussed information security, proper handling of information, a Soldier's obligation
to protect and not expose classified material, the possibility that a Soldier's disclosure that he or
she has access to classified material may be dangerous to the Soldier, and that enemy forces are
trying to collect information on the U.S. Military. The accused's written product and
PowerPoint presentation defined secret information and identified the type of people w^o try to
collect information for use against the United States, such as foreign governments, enemies,
spies, hackers, etc.
2. The Government will offer this evidence through the testimony of SFC(Ret) Madrid and a
slide show found on the accused's external hard drive. The evidence is offered to prove the
accused's knowledge to commit the charged offenses, specifically that the training the accused
presented to the platoon shows that the accused knew that information posted on the internet is
accessible to and sought out by the enemy.
3. The uncharged misconduct occurred on or about June 2008. The accused deployed in
October 2009. The date of inception of the charged misconduct is 1 November 2009. The
Government proffers that the charged and uncharged misconduct are temporally proximate, 18
months apart, therefore, the probative value outweighs any danger of unfair prejudice under
MRE 403.

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25779

4. The Defense stipulates to the facts as proffered by the government and thatan adequate
foundation has been laid by the Government to supportafinding by the fact finderthat the
accused conunitted the prior acts. Defense argues that the evidence of theYouTube posting and
the corrective training does not makeafact of consequence more or less probable and that^e
probative value ofthe evidence is outweighed by the danger ofunfair prejudice under MRE 403.
MRE404(b)act2: statement made bythe accused to SPCJihrleah Showman between
Marchand October2009.
1. The Covemment proffers that SPC Showman supervised the accused from March 2009 and
that SPC Showman counseled him on his military bearing shortly before they deployed in
October 2009. During the counseling and in response toaquestion from SPC Showman about
whatthefiag meant to the accused, the accused responded that the flag meantabsolutely nothing
to him and he had no allegiance to the United States orto its people.
2. The Government offers the transcript ofSPCShowman'sunder oath testimony at the Article
32 investigation andasworn statement given by SPC Showman to prove that she would testify
similarly to supportafinding by the fact-finderthat tbe accused committed the uncharged
conduct.
3. SPC Showman arrived at the accuscd'sunit and began supervising him in March 2009.The
statements were allegedly made af^erthe accused and SPC Showman went to JRTC within
months priorto the October 2009 deployment. There is no further specificity in the evidence
before the Court. The inception date ofthe chargedmisconductislNovember 2009.
4. The Government offers the accused'sstatements to prove his state of nund. The fact that he
had no loyaltyto the United States is evidence of the accused'sintent to commit the charged
misconduct because he did not care ifthe enemy had access to the information that was posted
on the internet. It is offered as circumstantial evidence relevantto prove the accused knowingly
gave intelligence to the enemy forthe Specification ofCharge I, recklessly and wantonly caused
infbm:iation to be published on the internet fbrSpecificationlofCharge II with knowledge that
the information would be accessible to the enemy,that the accused acted willfully for
Specifications 2, 3,5,7, 9, 10,11,12,13,andl5of Charge 11, and that the accused stole,
purloined or knowingly con^ertedathing of value from the United States for Specifications 4, 6,
^,12,and16ofChargeIl
5. The Defense posits that the government has presented no evidence the accused acted with
animus toward the United States. The Defense further argues that SPC Showman'sstatement is
unreliable because she did not report the accused'sstatement until after the accused assaulted her
in May 2010and when the charges against the accused were known. Additionally,thc
circumstances surrounding the making ofthe statement formal couriseling with requirement for
the accused to attend and the fact that SPC Showman did not know why the accused made the
statements further make the probative value ofthe statement low. Finally,the Defense argues
that lack oftemporal proximity between the accuscd'sstatements to SPC Showman and the
charged offenses and the circumstances surrounding the making of the statements renderthe
probative value outweighed by the danger ofunfair prejudice under MRE 403.

^ ^ ^ ^ ^ ^ ^ ^
^t^^^^^^^
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25780

6. The Defense argues the Court should reject SPC Showman'sprior statements and require her
live testimony. The Defense did notrequest thatthe Government produce her forthe motion.
TheCourt considered the CD audiot^cofSPCShowman'sarticle 32 testimonyproffcred bythe
Defense.
MRE404(h)act3: May 2010assaultofSPCShowmanresultinginanArticle 15 forthe
accused and eausing his removal from the 2-10 Mountain SCIF.
1. Theaccusedreceivedanarticle 15 forthe May 2010incident. SPC Showman and other
witnesses testified about the incident during the Article 32. The Covemment proffers the
uncharged misconduct is relevant to showthe timeline of the accused^sremoval from the SCIF
to the supply room and the mental state ofthe accused at the time. The timeline is relevant to
prov^ the accused stole or converted theU.SForcesIraq Global Address List charged in
Specificationl6ofChargeII. The Government further argues that the probative value ofthe
evidence is not substantially outweighed bythe danger ofunfairprejudice under MRE 403
because there will be little distraction forthe fact finder because the incident wasaone-time
event that will take little time to prove.
2. The Defense challenges the 2^^ and 3^^ prong of the MRE 404(b)test for admissibility
because establishing the Covemment'stimcline is notan appropriate purpose for MRE 404(b).
The Defense further posits that any probative value ofthe evidence is outweighed by the danger
ofpresenting uncharged misconductto the ^t-finder when the timeline can be established by
eliciting testimony ftom SSG Bigelow that the accused was assigned to work for him in the
supply room.
The Law:
MRE 404(b)allows evidence of uncharged misconduct when it is offered for some purpose other
than to demonstrate the accuscd'spredisposition to crime and thereby to suggest that the factfinderinferthathe is guilty as charged bccau^ he is predisposed to commit similar offenses. It
is unnecessary that relevant evidence fit snugly intoapigcon hole provided by MRE 404(b).
^^vC^.^^^^^^^29M.J.145(C.MA.1989) Indeterminingwhethertheproponenthas
introduced sufficient evidence to meet MRE104(b), the trial court neither weighs credibility nor
makesafinding that the Government has proved the conditional fact byapreponderance of the
evidence.
Tobe admissible under the evidence rules, evidence of the uncharged misconduct must satisfya
three-part test:
(1) The evidence must reasonably supportafinding by the factfinderthat the accused
committed the uncharged crime, wrong, or act;
(2) The evidence must make some fact ofconsequcnce more or less probable, although it
cannot be offered only as impcm^issiblc character evidence; and

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25781

(3) The probative value of the evidence mustnot be substantially outweighed bythe danger
ofunfairprejudiceunderMRE403. ^ ^ v.^^^o^^,29M.J.105,109(C.M.A.1989) Factors
that have been considered include the strength ofproofofthe prior act; the probative weight of
the evidence; the potential to present less prejudicial evidence, distraction ofthe factfinder;time
needed to prove the prior conduct; temporal proximity ofthe prior event; frequency ofthe acts,
the presence ofintervening parties and the relationship between the parties. ^^.^..8^r^,61
M.J.91(CAAF 2005).
Toberelevant and admissible, the evidence must directly relate to some specific ^ t t h a t is
of consequence to the action, not to the general issue of criminality. It must be connected in
time, place, and circumstance with the charged offense.
ConclnsionsofLaw MRE 404(h)actl: June 200^ internet posting hy the accused and
corrective training.
1. The testimony ofSFC (Ret) Madrid at the article 32 investigation and the slide show at
enclosure2of the Government'smotion provides sufficient evidence to supportafinding by the
factfinderthattheaccused posted the video onYouTube and drafted and presented theslide
show to his platoon as corrective training.
2. The following are consequences in issue for the governmentto prove in the Charged
Offenses: that the accused knowingly gave intelligence to the enemy for the Specification of
Charge I, that the accused recklessly and wantonly caused information to be published on the
internet for Specificationlof Charge II with knowledge that the information would be accessible
to the enemy,that the accused acted willfully for Specifications 2,3,5,7,9, 10,11,12,13,and
15 of Charge 11. The fact that the accused receivedareprimand for and was told to removea
video he placed on the internet using words such as "classified information" and "SCIF" and that
he preparedapower point presentation entitled "Operations Security,(OPSEC)" is relevant to
prove that the accused had the above listed ^^^.^^^^fbrthose charges. This uncharged conduct
does not prove any consequence at issue regarding whether the accused stole, purloined or
knowingly convertedathingofvalue from the United States for Specifications 4,6, 8,12, and
16ofChargeII
3. The probative value of the evidence is not substantially outweighed by the danger of unfair
prejudice under MRE 403. Although the uncharged conduct occurred approximatelyl7months
priorto the inception date ofthe charged misconduct, receivingareprimandbyaplatoon
sergeant for improperly postingaYouTube video referencing classified information tcm^ and
the preparation and presentation of an operations security class would be significant events for an
AIT student. Both the removal ofthe improperly posted video and the powerpoint presentation
are probative ofthe accused'sknowledge ofinfbrmation security and his intentto disregard that
knowledge. The evidence ofthe uncharged conduct will take little time and will not be
distracting for the factfinder.There is no potential to present less prejudicial evidence. The
Court will givealimiting instruction on the proper use ofthis evidence to mitigate anyriskof
unfairprcjudice.

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4. The posting ofthe video, the removal ofthe video, the reprimand by SFC (Ret) Madrid, and
the corrective training class are admissible under MRE 404(b) forthe reasons set forth in
paragraph2.
ConclusionsofLaw-MRE404(h)act2:
SPCShowman.

March2009statementmadehytheaecusedto

1. The transcript and audio taped testimony ofSPCShowman^sArticle 32 and herswom
statement to CID are consistent and provide sufficient evidence to reasonably supportafinding
by the factfinderthatthe accused made the uncharged statements. The Defense has not
presented any evidence that SPC Showman would testify any differently at trial.
2. The accused'sstatements were made between March and October 2009 afferthe accused
went to JRTC. Thus, they were made between6and2months priorto the inception date ofthe
charged misconduct.Theaccused'sstatements prior to his deployment are relevant to his state of
mind during the deployment.The uncharged statements are admissions by the accused that are
probative toafact at issue. Evidence that the accused had no loyalty to the fiag orto the United
States or its people is evidence to prove that the accused did not care ifthe enemy had access to
theinfbm:iation. This state ofmind is relevantto prove that the accused knowingly gave
intelligence to the enemy for the Specification of Charge 1, that the accused recklessly and
wantonly caused information to be published on the internet for SpecificationlofCharge II with
knowledge that the information would be accessible to the enemy,that the accused acted
willftilly for Specifications 2, 3,5,7,9,10,11,12,13,andl5ofChargeIL These uncharged
statements do not prove any consequence at issue regarding whetherthe accused stole,
purloined,or knowingly convertedathingofvalue from the United States for Specifications 4,6,
8,12,andl6ofCh^geII.
3. The probative value of the uncharged statements is high to prove the accused'sknowledge
and intent. The evidence will not take long to present and will not confuse or distract the fact
finder. There is no potential to present less prejudicial evidence. Evidence ofthe accused's
statements are prejudicial to the accused as is all inculpatory infbm:iation. The issue is whether
the probative value of the evidence is substantially outweighed by the danger ofunfairprejudice.
Theriskofunfair prejudice is thatthe factfinderwill use d^e evidence for something otherthan
the lin^t^ purpose for which it is introduced or to that they will convict the accused because
theythink he isabad person because ofthe uncharged statements. The Court will instruct the
members fully on the limited use ofthis evidence.
4. Evidence of the accused'sstatements to SPC Showman are admissible under MRE 404(b)to
prove knowledge and ^^^^^^^ as set forth in paragraph2of this section.
Findings o^Fact and Conclusions ofLaw MRE 404(h)act3: May2010assaultofSPC
Showman eausing the removal of the accused from the 2-10 Mountain SCIF.
1. The Articlel5package, the statementsofSSG Bigelow ^nd SPC Showman and the under
oath Article 32 testimony ofSPC Showman provide sufficient evidence to reasonably supporta
finding bythe factfinderthatthe accused assaulted SPC Showman.

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25783

2. The evidence is relevant to presentto the f^ctfinderthe reasons why the accused was
removed from the SCIF to the supply room and had his clearance suspended and his access to
classified information removed.
3 Theprobativevalueoftheevidenceissubstantiallyoutweighedbytheriskofunfair
prejudice under MRE 403 if presented during the Govemment'scase in chief There is the
potential to present less prejudicial evidence to prove that the accused was removed from the
SCIF to the supply room on or about8May 2010, that his security clearance was temporarily
revoked, and that he did not have access to classified information while in the supply room. The
Government can elicit testimony from SSG Bigelowthat the accused was moved from the SCIF
to the supply room and that he was not cleared for nor did he have access to classified
information while he was working in the supply room.
4. Evidence thatthe accused assaulted SPC Showman or received an articlel5fbr the
uncharged conduct is not admissible in the Govemment'scase in chief
MRE 404(h)Acts to Rehnt Good Soldier Defense. The Government may use specific
instances of conduct to cross examine wimesscs presenting good Soldier character evidence on
behalfof an accused with "have you heard" "did you know" "were you aware" questions so long
as the Govemmenthasagood faith basis to inquire. Each ofthe three acts ofuncharged
misconduct provides that good faith basis.
RULING: The Government motion to admit evidence ofMRE404(b)actsland2is
GRANTED.TheGovemmentmotiontoadmitevidenceofMRE404(b)act3is DENIED.
SoOrderedthis30^dayofAugust2012

DENISERLI
COL,JA
ChiefJudge,!^^ Judicial Circuit

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25784

UNITEDSTATESOF AMERICA
RULING: Government and Defense
Motions for Judicial Notice of
Ad^udicativeFacts

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

30August2012

The Government moves this Court to take Judicial notice ofthe following adjudicative
facts: (l)ArmyRegulation(AR) 25 2, paragraphsl 4,1 5,3 3,4 5, 4-16, 4-17,andfigure B-1;
(2) AR380 5, paragraphs 1-20,1 21,1 22, Chapter 2; Chapter4(SectionI);Chapter5(Sections
land V);paragraphs6 1,6 2,6 3,7-4, 8-3,and812;(3)AR530 1,paragraphs15,16,1-7,and
2-1;(4)18USCSection641;18USCSection793(e);18USCSection 1030(a)(1);(7)
Executive Order 13526; and (8) Authorisation for the Use ofMilitary Force.
The Defense objects to the Court takingjudicial notice of(8) Authorization for the Use of
Military Force on the grounds that it is not relevant under MRE 401. Defense does not object to
the Government motion for the Court to takejudicial notice ofthe regulatory paragraphs in (1)
(7) above. The Government motion to take Judicial notice of adjudicative facts i n ( l ) ^ ( 7 ) is
GRANTED.
The Defense moves this Court to take Judicial Notice ofthe following adjudicative facts:
ExcerptsFrom David Finl^ePsBook The Good Soldiers:
1. The Defense requests the Court to take judicial notice that David Finkel'sbook, The Good
Soldiers, was published prior to the alleged leaks in this case and to take judicial notice that Mr.
Finkel'sbook contains audio from the video charged in Specification2of Charge II.
2. The Government does not object to the Court takingjudicial notice that David Finkel'sbook
was published prior to the leak of the video in Specification2of Charge II. The Government
objects to the Court takingjudicial notice that David Frankel'sbookcontainsaverbatim
transcript of the video charged in Specificationlof Charge II.
Inadequacies with the Distributed Common Ground System-Army (DCGS-A)^
1. The Defense moves the Court to takejudicial notice ofinadequacies with the Distributed
Common Ground System Army(DCGS-A), specifically that the system was prone to crashes
and incapable offiinctioning when not connected toanetwork.
2. The Government opposes on the ground that the information supplied by the Defense does
not support the proposition that inadequacies and issues with the DCGSAwere well known or
even generally known within the military community.
I

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25785

^

The Law:
1. Military RuleofEvidence (MRE) 201 governs judicial noticeof adjudicative facts. The
judicially noticed fact 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^^v^^^^^^^,23MJ 383 ( C M A 1987);^^v^B^^^^33MJ706
(A.C.MR199I)
2. MRE 201(c)requires the military judge to take judicial notice of adjudicative facts if
requested byaparty and supplied with the necessary information.
3. When the militaryjudgetakesjudicial notice ofadjudicative facts, the factfinderis instructed
that they may,but are not required to, accept as conclusive any matter judicially noticed.
4. Judicial notice is of adjudicative facts. Judicial notice is not appropriate for inferencesaparty
hopes the factfinderwill draw from the fact(s)judicially noticed. Legal arguments and
conclusions are not adjudicative facts subject to judicial notice, ^.^.v.^^^^^.^^^, 22 M.J.885
(A.F.C.M.R. 1985)(appropriate to take judicial notice of the existence ofatreatment program at
aconfinement facility but not appropriate to take judicial notice ofthe quality of the program.).
Findings ofFact and Conclusions ofLaw: Government Request for Judicial Notice (8):
1. The Joint ResolutionAuthorizing the Use ofForce(JRAUF),107^^ Congress Public Law 40
is an adjudicative fact capable ofaccurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. The Goverrm^ent has provided the Court with the
necessary information under RE 201(c).
2. The Courtfindsthe JRAUF is relevant evidence for the Government to prove who is an
"enemy" for the purposes ofthe specification of Charge I, and SpecificationlofCharge II. The
fact that the JRAUF, standing alone, does not prove who is an enemy does not detract fi^om its
relevance.
3. The Government motion for Judicial Notice as Adjudicative Fact for (8) is GRANTED.
Conclusions ofLaw: Defense Request forJudicial Notice ofExcerpts from David FinkePs
Book^^TheGoodSoldiers^^.
1. As the Government does not object, the Defense motion forthe Court to takejudicial notice
that David Finkel'sbook was published prior to the alleged leaks in this case is GRANTED.
2. The Defense provided the Court withaWashingtonPost article dated6April2010by David
Finkel describing an excerpt from his book.The Good Soldiers. Defense did not provide the
Court with the video charged in Specification2of Charge II to compare with the book orthe
article to determine whether the excerpt ofthe book isaverbatim transcript of the video.

2

25786

^

3. The Defense motion for the Court to take judicial notice that Mr. Finkel'sbook containsa
verbatim description ofthe audio from the video charged in Specification2of Charge II is
DENIED.
4. The Court will take judicial notice ofMr. Finkel'sbook and relevant excerpts from pages of
that book should the Defense provide the Court with the necessary information.
5. Linkages, argument, and legal conclusions regarding the contents ofMr.Finkel'sbook and
the audio in the video are properly presented to the factfinderby the parties not by the Court.
Conclusions ofLaw: Defense Request for Judicial Notice ofinadequacies with the
Distributed Common Ground System-Army (DCGS-A).
1. The Defense moves for the Court to takejudicial notice ofinadequacies with the DCGS-A,
particularly that the DCGSAsystem was prone to crashes and incapable of functioning when
not connected toanetwork. The evidence provided to the Court in support ofjudicial notice
does not demonstrate that these facts are generally known universally,locally,or in the area
pertinent to the event orthat these facts are capable ofaccurate and ready determination by resort
to resources whose accuracy cannot reasonably be questioned. The facts are not judicially
noticeable.
2. During oral argument, the Defense advised the Court that, in the alternative, the Defense
would request the Court to takejudicial notice ofthe enclosures supporting the request for
judicial notice, particularly attachments:
A. July 2011information paper by H^DADCS,G2Initiatives Group (DIG);
B. Commander'sHandbook Distributed Common Ground System Army (DCG-A),
March30,2009;
C. Advanced Ace, Analytical Capability Joint Urgent Operational Need Statement, MG
MichaelTFlynn,DeputyChiefofStaffIntelligence,2July2010
D. 19 July 20101etterfrom3members of Congress to the Chairman and Ranking
Members ofthe House Appropriations Committee;
E. 28 July20101etter to the Chairman, House Appropriations Committee from COL
PeterA. Newell, Director, Rapid EquippingForce;
F. 25 August 20101etter to COL Newell from Congress members GabrielleGiffords and
Adam Smith;
G. 23 May 2011from Adam Smith, Congress member to General Martin E.Dempsey;
H. 29 June 2011article from Politico entitled "Computer bugs hurt Army ops;"
I. 22 September 2011Article from unknown newspaper entitled "U.S. Army Intel
software crashes during exercise".
3. The Courtwill takejudicial notice of AttachmentsA^G. The Court will not takejudicial
noticeofattachmentsHandl. Both articles rely on anonymous sources and the publisher ofthe
Attachmentlarticle is unknown. Neither article demonstrates that these facts are generally
known universally,locally,or in the area pertinent to the event or that these facts are capableof

25787

accurate and ready determination by resort to resources whose accuracy cannot reasonably be
questioned.
4. Any linkages, argument, and legal conclusions regarding the contentsofthe judicially noticed
documents are properly presented to the factfinderby the parties not by the Court.
RULING: The Government motion forjudicial notice ofEnclosuresl-8 is GRANTED. The
Defense motion for judicial notice that David Fir^el'sbook was published prior to the alleged
leaks in this case is GRANTED. The Defense motion for judicial notice that Mr.Finkel'sbook
containsaverbatim description ofthe audio from the video charged in Specification2of Charge
II is DENIED. The Court will take judicial notice ofMr.Finkel'sbook and relevant excerpts
from pages ofthat book should the Defense provide the Court with the necessary information.
The Defense motion for judicial notice ofinadequacies with the DCGSA,particularly,that the
DCGSAsystem was prone to crashes and incapable of fiinctioning when not connected toa
network is DENIED. The alternative motion by the Defense for judicial notice of attachmentsA
^ l i s GRANTED INPARTTheCourtwilljudiciallynoticeattachmentsA^G
So Ordered this 30^^ day ofAugust2012.

DENISERLIND
COL,JA
ChiefJudge,l^^ Judicial Circuit

25788

UNITED STATES OF AMERICA

v.
Court Order
Manning, Bradley E. for Mental Health Professionals

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

Fort Myer, Virginia 22211

30 August 2012
Suspense: 14 September 2012



TO: Dr. Kenneth Deherrera, Guthrie Army Community Hospital, Fort Drum, NY 13602

1. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING _that you observed and/or treated during August 2009 and to
produce all mental health records of PFC Manning, including notes, during August 2009.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washington, l03rd Avenue
sw, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058-

4. Either call or email the Trial Counsel at the phone number or email address listed above to I
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 14 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ordered this 30th day of August 2012 in chambers.

Denise Lind
Colonel, U.S. Army
Chief Judge, Judicial Circuit

APPELLATE EXHIBIT 3 37
PAGE


. 25789

UNITED STATES OF AMERICA

v.
Court Order
Manning, Bradley E. for Mental Health Professionals

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

Fort Myer, Virginia 22211

30 August 2012



TO: Dr. Peter Resweber, Guthrie Army Community Hospital, Fort Drum, NY 13602

1. As the Military Judge presiding over the above-captioned General Court-Martial, have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING that you observed and/or treated during June 2009 and to
produce all mental health records of PFC Marming, including notes, during June 2009.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washington, 103rd Avenue
sw, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058,

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 14 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ordered this 30th day of August 2012 in chambers.

Denise Lind
Colonel, U.S. Army
Chief Judge, Judicial Circuit

.
PAGE
PAGE OF t?/tens

25790

Joint Base Myer-Henderson Hall 30 August 2012

Fort Myer, Virginia 22211

UNITED STATES OF AMERICA

v.
Court Order
Manning, Bradley E. for Mental Health Professionals
PFC, U.S. Army,
HHC, U.S. Army Garrison,



TO: Dr. Joseph Gretsch, Guthrie Army Community Hospital, Fort Drum, NY 13602

1. As the Military Judge presiding over the above-captioned General Court-Martial, have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have infonnation which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY

MANNING that you observed and/or treated during September 2009 and to
produce all menta eat recor of PFC Manning, including notes, during September 2009.
3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ

Ashden ein, Of?ce of the Staff Judge Advocate, Military District of Washington, l03rd Avenue
sw, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5053,



4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 14 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ordered this 30th day of August 2012 in chambers.

Denise Lin

Colonel, U.S. Army
Chief Judge, Judicial Circuit

APPELLATE Q9 1
PAGE REFERENCED:
PAGE or PAGES

25791

UNITEDSTATESOF AMERICA
v^

Court Order
for Mental Health Professionals

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

30August2012

TO:CPTEdanCritchfield,GuthrieArmyCommunityHospital,FortDrum,NY13602
1. As the Military Judge presiding over the abovecaptioned General Court-Martial,Ihave
determined, pursuanttoArticle46, Uniform CodeofMilitaryJusticc(10USC^ 846),thatyou
have information which is required to provide in the above referenced case.
2. You are directed to respond to all questions asked by the prosecution in United Statesv.PFC
Manning regarding the behavior, mental health, and suicidal ideationsofPFC BRADLEY
MANNING((b) (6)
) thatyouobservedand/ortreatedduringMay2010and to
produce all mental health recordsofPFC Manning, including notes, during May2010.
3. The records will be placed inasealed envelope and provided to theTrial Counsel,MAJ
AshdenFein, Office ofthe Staff Judge Advocate, Military District ofWashington,103rdAvenue
SW,Building32, Suite 100,FortLesleyJMcNair,DC,20319 5058, (b) (6)

4. Either call or email theTrial Counsel at the phone number or email address listed above to
provide your contact information so theTrial Counsel may ask his questions.
5. You will comply with this court order no later than14Septemher 2012.
6. Should the requirements of this Court Order not be complied with,aWarrant of Attachment
may be issued and executed to compel production ofthe records and you may be ordered to
appear before the court to show cause as to why the court'sorder has not been carried out.
Willful refusal to produce duly subpoenaed evidence foracourtmartial may be prosecuted asa
crime againstthe United States (Article47,Uniform Code ofMilitaryJustice(10U.S.C.^ 847)).
So ordered this 30th day of August 2012in chambers.

^

Denise Line
Colonel, U.S. Army
ChiefJudge, 1st Judicial Circuit

APPELLATE CXIIIB1T_^^
PAGE REFERENCED:
PAGE OF
PAGES



25792

Joint Base Myer-Henderson Hall 30 August 2012

Fort Myer, Virginia 2221]

UNITED STATES OF AMERICA

v.
Court Order
Manning, Bradley E. for Mental Health Professionals
PFC, U.S. Army,
HHC, U.S. Army Garrison,



TO: Dr. Martin Leibman, US Army Medical Activity, Fort Lee, VA 23801

1. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING that you observed and/or treated during December 2009 and to
produce all mental health records of PFC Manning, including notes, during December 2009.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden ein, Of?ce ofthe Staff Judge Advocate, Military District of Washington, 103rd Avenue
SW, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058,



4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 14 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Unifonn Code of Military Justice (10 U.S.C. 847)).

So ordered this 30th day of August 2012 in chambers.

Denise Li

Colonel, U.S. Army
Chief Judge, 1st Judicial Circuit

25793

UNITED STATES OF AMERICA
v.
Court Order
Manning, Bradley E. for Mental Health Professionals

PFC, U.S. Army,

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

30 August 2012



TO: CPT Michael Worsley, Medical Detachment (Rear), 9700 Tank Trail Road, Joint
Base Lewis-McChord, WA 98433

1. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING that you observed and/or treated from 30 December 2009 to 30
May 2010 and to produce all mental health records of PFC Manning, including notes, from 30
December 2009 to 30 May 2010.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Of?ce of the Staff Judge Advocate, Military District of Washington, l03rd Avenue
sw, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058,-

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 14 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ordered this 30th day of August 2012 in chambers.

Denise my

Colonel, U.S. Army
Chief Judge, Judicial Circuit

APPELLATE
PAGE REFERENCED:
PAGE OF PAGES





UNITED STATES OF AMERICA

v.
Court Order

Manning, Bradley E. for Mental Health Professionals

PFC, U.S. Army,

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

30 August 2012



TO: Dr. David Hutcheson-Tipton

I. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Marming regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY

MANNING that you observed and/or treated during June 2010 and to
produce all menta ea recor of PFC Manning, including notes, during June 2010.
3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ

Ashden Fein, Of?ce of the Staff Judge Advocate, Military District of Washington, lO3rd Avenue
SW, Building 32, Suite 100. Fort Lesley J. McNair, DC,

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your Contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 14 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ordered this 30th day of August 2012 in chambers.



Denise Lind
Colonel, US. Army
ChiefJudge, Judicial Circuit

_27?
PAGE
PAGE OF PAGES




25795

Joint Base Myer-Henderson Hall 30 August 2012

Fort Myer, Virginia 22211

UNITED STATES OF AMERICA

v.
Court Order
Manning, Bradley E. for Mental Health Professionals
PFC, U.S. Army,
U.S. Army Garrison,



TO: LCDR Eve Weber, US Naval Academy, Annapolis, MD 21402

I. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY

that you observed and/or treated from 31 May 2010 to 29 July
2010 and to produce all mental health records of PFC Manning, including notes, from 31 May
2010 to 29 July 2010.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washington, l03rd Avenue
sw, Building 32, Suite 100, Fort Lesley J. McNair, DC, 203 9-5058,-

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 14 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ordered this 30th day of August 2012 in chambers.

Colonel, U.S. Army
Chief Judge, Judicial Circuit

APPELLATE
PAGE REFERENCED:

25796

Joint Base Myer-Henderson Hall 30 August 2012

Fort Myer, Virginia 22211

UNITED STATES OF AMERICA

v.
Court Order
Manning, Bradley E. for Mental Health Professionals
PFC, U.S. Army,
HHC, U.S. Army Garrison,



TO: CAPT Jonathan Richardson, Navy Hospital, Camp Pendleton, CA 92055

1. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case. .

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING ?that you observed and/or treated from 31 May 2010 to 29 July
2010 and to produce all mental health records of PFC Manning, including notes, from 31 May
2010 to 29 July 2010.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washington, lO3rd Avenue
sw, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058, 1

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 14 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Will?il refusal to produce duly subpoenaed evidence for a court?martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ordered this 30th day of August 2012 in chambers.


Denise Lind

Colonel, U.S. Army
Chief Judge, Judicial Circuit



PA(it.s

0 25797

Joint Base Myer-Henderson Hall 30 August 2012

Fort Myer, Virginia 22211

UNITED STATES OF AMERICA

v.
Court Order
Manning, Bradley E. for Mental Health Professionals
PFC, U.S. Army,
HHC, U.S. Army Garrison,



TO: COL Ricky Malone, Walter Reed National Naval Medical Center, Bethesda, MD
20307

1. As the Military Judge presiding over the above?captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING that you observed and/or treated 29 July 2010 to 31 May 2011
and to produce all mental health records of PFC Manning, including notes, 29 July 2010 to 31
May 2011.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washington, l03rd Avenue
sw, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058,

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 14 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been canied out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ordered this 30th day of August 2012 in chambers.



Denise Lind
Colonel, U.S. Army
Chief Judge, Judicial Circuit

EXl?l3?T-??g--92


0 25798

UNITED STATES OF AMERICA
v.
Court Order
Manning, Bradley E. for Mental Health Professionals

PFC, U.S. Army,

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

30 August 2012



TO: CAPT William Hocter, Walter Reed National Naval Medical Center, Bethesda, MD
20307

1. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING that you observed and/or treated from 29 July 2010 to 31
January 2011 and to produce all mental health records of PFC Manning, including notes, from
29 July 2010 to 31 January 2011.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washington, lO3rd Avenue
sw, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5053,?

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 14 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ordered this 30th day of August 2012 in chambers.

Denise Lind

Colonel, U.S. Army
Chief Judge, Judicial Circuit

APPELLATE EXHIBIT
PAGE

PAG ES



UNITED STATES OF AMERICA

v.
Court Order
Manning, Bradley E. for Mental Health Professionals

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

Fort Myer, Virginia 22211

30 August 2012

isdes/ex/\/\/Q

TO: LTC Robert Russell, Walter Reed National Naval Medical Center, Bethesda, MD
20307

1. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING that you observed and/or treated during April 2011 and to
produce all mental health records of PFC Marming, including notes, during April 201 1.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washin on, 103rd Avenue
sw, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5053,

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your Contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 14 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ordered this 30th day of August 2012 in chambers.

2/y

Denise Lind
Colonel, U.S. Army
Chief Judge, Judicial Circuit

APPELLATE EXHIBIT E10
PAGE REFERENCED:

PAGE OF PAGES

25800

Appellate Exhibit 301
6 pages
ordered sealed for Reason 7
(government)
Military Judge's Seal Order
dated 20 August 2013
stored in the original Record
of Trial

25801

Appellate Exhibit 301
Enclosure 1
1 CD
classified
"SECRET (SPECIAL
HANDLING)"
ordered sealed for Reason 1
and Reason 7 (government)
Military Judge's Seal Order
dated 20 August 2013
is stored at the Office of the
General Counsel, Central
Intelligence Agency pursuant
to AE 500

25802

Appellate Exhibit 301
Enclosure2
ICD
classified
"SECRET (SPECIAL
HANDLING)"
ordered sealed for Reasonl
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
is stored at the Office ofthe
General Counsel, Central
Intelligence Agency pursuant
toAE500

25803

Appellate Exhibit 301
Enclosure3
3pages
ordered sealed forReason7
(government)
Military Judge's Seal Order
dated20August2013
stored in the original Record
ofTrial

25804

Appellate Exhibit 301
Enclosures
2pages
ordered sealed for Reason7
(government)
Military Judge's Seal Order
dated20August2013
stored in the original Record
ofTrial

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

0 25805

Government in camera and ex parte
Motion for Authorization of Redactions of
Department of State Records under
MRE 505(g)(2) and RCM 701(g)(2)

Enclosure 5
MFR for Meetings



14 September 2012

APPELLATE
Page of

ss?

0 0 25806

DEPARTMENT OF THE ARMY
u.s. ARMY MILITARY DISTRICT or wnsumsron
210 A STREET
FORT LESLEY J. MCNAIR, DC 20319-5013

REPLY TO
ATTENTION OF



ANJA-CL 13 September 2012

MEMORANDUM FOR RECORD

SUBJECT: WikiLeaks Mitigation Team Meetings - United States v. PFC Bradley Manning

1. On 5 September 2012 at the Department of State, I searched through documents related to the
WikiLeaks Mitigation Team, and I annotated the dates and times the Team held meetings. For
those meeting dates which did not have associated times, I only annotated the applicable dates.
The information I found follows:

a. 1 December

b. 3 December 2010, 1300-1400
c. 7 December 2010, 1 100-1200
(I. 9Decembcr2010,1130-I215
e. 14 December 201()

17 December 2010, 1330-1430
g. 21 December 2010, 1030-1 130, 1400-1500
h. 23 December 2010. 1030-1 130
i. 5 January 2011

j. 7 January 201 I, 1 100-1200

k. 11 January 201 1. 1100-1200

1. 18 January 2011. 1530-1630
m. 25 January 2011

n. 1 February 2011

o. 3 February 201 1

APPELLATE EXHIBIT
Page of Page(s)



ANJA-CL

SUBJECT: WikiLeaks Mitigation Team Meetings -

bbFebruary 201 1

8 February 201 1

15 February 201 1

18 February 2011,1300-1400
1 March 2011

15 March 2011

18 March 2011

29 March 2011,1100-1200
30 March 2011

12 April 2011, 100-1200

15 April 2011

.26 April 2011, 1500-1600

28 ApriI2011, 1400-1445

30 June 2011

21Ju1y2011, 1000-1100

1 August 2011

15 August 2011, 1530-1630

30 August 2011, 1100-1200

20 September 201 1

27 September 2011, 11001200

31 October 201 1



nited States v. PFC Bradle Mannin



APPELLATE EXHIBIT
of Page(s)

25807

. . 25808
A NJA-C

SUBJECT: WikiLeaks Mitigation Team Meetings - United States v. PFC Bradley Manning

kk. 3 November 201 I
11. 19 December 201 I

2. The point of Contact for this memorandum is the undersigned at

f\

A

yi?L.\
74/9

CL RE

Paralegal NCO

APPELLATE musn
PM 0' Page(s)

0 25809

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: GOVERNMENT

IN CAMERA AND EX PARTE
MOTIONS FOR

AUTHORIZATION OF


Manning, Bradley F. FOR DHS, CIA, AND DOS
U.S. Army, RECORDS
Headquarters and Headquarters Company,
U.S. Army Garrison, Joint Base Myer- DATED: 28 September 2012
Henderson Hall, Fort Myer, VA 22211

The Government has moved ex parte under Military Rule of Evidence (MRE) 505(g)(2) and Rule
for Courts-Martial (RCM) for the Court to conduct an in camera review of and authorize
limited disclosure in the form of redactions for DHS and DOS records and a substitute summary for CIA
records that the Court ordered the Government to produce to the Defense. The Defense opposes redaction
or substitution.

The Court reviewed the Govemment?s unclassi?ed and classi?ed motions for redactions to DHS
and DOS records and a substitution summary for CIA records. The Court also conducted an ex parte
review of the original documents and the proposed redactions and substitute. In coming to this ruling, the
Court has considered the factors requested by the Defense in paragraph 7 of its l9 September 2012
response. The Court ?nds and rules as follows:

DHS records: The Government noti?ed the Court that on 14 September 20l 2 all of the DHS
records at issue were made available to the Defense except a single page with part of a line proposed for
redaction. The infonnation redacted is not relevant to the accused or to the charged offenses. The DHS
records and the redacted page meet the Govemment?s discovery obligations under Brady and RCM
70l(a)(6) to disclose evidence tending to reasonably negate the guilt of the accused to an offense charged,
reduce the degree of guilt to an offense charged, or reduce the punishment. The classi?ed infonnation in
the redaction is not necessary to enable the accused to prepare for trial. The Government motion for
redaction IAW RCM 70l(g)(2) is granted.

CIA records: The proposed substitute is an accurate summary of the information in the original
records and provides the Defense with the relevant facts necessary to prepare for trial. The classi?ed
infonnation in the original records is not favorable to the accused, material to guilt or punishment, or
necessary to enable the accused to prepare for trial IAW MRE 505(g)(2) or RCM 703(f). The
Government motion to provide a substitute summary IAW MRE 505(g)(2) is granted.

DOS records:

a. The proposed redactions of the DOS documents in ?Bucket are of infonnation that does not
involve the accused or the charged offenses. The proposed substitute is an accurate summary of the
infonnation in the original records and provides the Defense with the relevant facts necessary to prepare
for trial. The classi?ed information in the original records is not favorable to the accused, material to

aw lull? 307-
7?

0 25810

guilt or punishment, material to the preparation of the defense, or necessary to enable the accused to
prepare for trial IAW MRE 505(g)(2) or RCM 703(f). The Government motion for redaction of irrelevant
information is granted.

b. The vast majority of the proposed redactions of the DOS documents in ?Bucket 2? are
personally identi?able information (PII) of individuals in the Persons at Risk Group and are properly
redacted IAW the Court?s 19 July 2012 Ruling: Defense Motion to Compel DOS Discovery Motion to
Compel There is one potential categorical exception. The Court will meet ex parte with Government
counsel in an area appropriate for review of classi?ed information on or before 10 October 2012. The
?Bucket documents will be produced for the meeting. A court reporter will transcribe the classified
proceedings. The Government motion for proposed redactions in ?Bucket is granted in part. After
the ex parte meeting, the Court will determine whether this ruling will be modi?ed regarding certain
redacted documents.

No redacted information in the DHS, CIA, or DOS records that has not been disclosed to the
Defense will be used by the Government or by any Government witness during any portion of the trial to
include rebuttal and rule of completeness.

The substitution of the DHS record, CIA records, DOS ?Bucket records, and the vast
majority of the DOS ?Bucket# 2? records is suf?cient for the Defense to adequately prepare for trial and
represents an appropriate balance between the right of the Defense to discovery of relevant and necessary
classi?ed information and the protection of speci?c national security information, particularly intelligence
sources and methods and the safety of individuals identified by DOS as persons at risk.

RULING: The motions by the Government to voluntarily provide limited disclosure under MRE
505(g)(2) for DHS, CIA, and DOS ?Bucket records is GRANTED. The Government motion to
voluntarily provide limited disclosure under MRE 505(g)(2) for DOS ?Bucket 2? records is
GRANTED IN PART.

Ordered this 28"? day of September 2012.

DENISE R. LIND
COL, .lA
Chiefludge, ls? Judicial Circuit

Q06-



IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE RESPONSE TO
GOVERNMENT MOTION FOR
AUTHORIZATION OF
REDACTIONS OR
SUBSTITUTIONS FOR

FBI, CIA, DHS, AND DOS
MANNING, Bradley E., PFC RECORDS
U.S. Army,

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

DATED: 19 September 2012



RELIEF REQUESTED

I. The Defense requests that this Court deny any proposed redactions or substitutions from the
Federal Bureau of Investigation (FBI) file, the Central Intelligence Agency (CIA) records, the
Department of Homeland Security (DHS) document, and the Department of State (DOS) records
where, considering the mindset of Defense counsel (including the questions referenced herein),
the Court concludes that the classified infonnation itself is necessary to enable the accused to
prepare for trial.

EVIDENCE

2. The Defense does not request any witnesses for this motion, but does request that the Court
consider Appellate Exhibit IX, CXVI, CXLVI, CXLVII, CCXXII, 254, and
273 for the purposes of this motion.

4
.0

FACTS

3. The FBI, CIA, DHS, and DOS have not claimed a privilege under MRE 505(c). Therefore,
the documents being considered by the Court are governed by Brady/RCM 701 RCM
70I(a)(6), RCM 70I(g)(2), RCM 703(1), and MRE 505(g)(2).

4. The Court has found that the FBI, CIA, and DOS are ?closely aligned? with the Government
in this case. Appellate Exhibit p. The Court has not been requested to make a
similar determination regarding DHS records. However, the Defense would submit that DHS is
also closely aligned with the Government in this case.

4!

-3 A IT:
RI-.-TEE.
PNGE 0? PAGES



25812

ARGUMENT

5. The Govemment?s non?ex parte ?lings and redacted in camera motions provided to the
Defense request the Court to authorize redactions and substitutions under either RCM 70l(g)(2)
or MRE 505(g)(2). Speci?cally, the Government requests the following:

6)

b)

d)

DHS Document. The Government requests the Court to ?authorize a redaction of
material within one DHS document under RCM 70l(g)(2) that is neither favorable to the
accused and material to guilt or punishment, nor relevant and necessary for production
under RCM See Government ex parte Motion for Authorization of a Redaction
of Material within One Department of Homeland Security Document under RCM
701(g)(2), dated 14 September 2012.

CIA Report. The Government requests the Court to ?authorize a summary of information
contained within CIA documents that is favorable to the accused and material to guilt or
punishment, or relevant and necessary for production under RCM See
Government in camera Motion for Authorization of a Summary of CIA Information
under MRE 505(g)(2), dated 14 September 2012.

FBI File. The Government requests approval of redactions from the FBI ?le. The
Government has apparently identi?ed two folders of information with proposed
redactions. The ?rst folder, ?Folder apparently contains 184 documents and the
second folder, ?Folder contains 90 documents. In each folder, the Government
requests the Court to authorize the identi?ed proposed redactions. The Government
presumably basis its request on a belief that the redactions are neither favorable to the
accused and material to guilt or punishment, nor relevant and necessary for production
under RCM 703(f). See Supplement to Government in camera Motion for Authorization
of Redactions for the FBI ?le under MRE 505(g)(2), dated 14 September 2012.

DOS Records. The Government requests the Court to ?authorize a redaction of portions
of Department documents under RCM 70 that are neither favorable to the accused
and material to guilt or punishment, relevant and necessary for production under RCM
703(f), subject to production under the Court?s Order dated 19 July 2012, nor ?necessary
to enable the accused to prepare for trial? under MRE See Government in
camera and ex parte Motion for Authorization of a Redactions of Department of State
Records under MRE 505(g)(2) and RCM 701(g)(2), dated 14 September 2012.

6. As part of its request, the Government provided the following additional detail:

a)

b)



DHS Document. The Government has indicated that ?it will not use the redacted
information during any portion of the trial.? See Government ex parte Motion for
Authorization of a Redaction of Material within One Department of Homeland Security
Document under RCM 701(g)(2), p. 2.

CIA Report. The Government has indicated that it ?will not use any portion of these CIA
documents not disclosed to the defense during any portion of the trial.? See Government
in camera Motion for Authorization of a Summary of CIA Information under MRE
505(g)(2), p. 3.

FBI File. The Government has indicated that it ?will not use any portion of the redacted
information not disclosed to the defense during any portion of the trial.? See Supplement



7. The Government requests this Court to approve of its determination that the Defense is not
entitled to discovery of the redacted or substituted information. In considering whether the
proposed substitutions or redactions are suf?cient, the Court must determine if the disclosure of
the classi?ed information itself is necessary to enable the accused to prepare for trial. MRE
505(g)(2). In making this determination, the Defense requests that this Court consider the
analysis proposed by the Defense in Appellate Exhibit and the following factors
adopted by the Court in Appellate Exhibit CXLVI:

61)
b)

C)

d)
6)

25813

to Government in camera Motion for Authorization of Redactions for the FBI ?le under
MRE 505(g)(2), p. 2. The caveat ?not disclosed to the defense? ordinarily would not be
troubling to the Defense. However, the Government placed emphasis on the fact that it
did not identify whether the proposed redactions may have already been provided to the
Defense is some other form of discovery unrelated to the FBI ?le. Id. at p. (?The
United States did identify whether proposed redactions were made available to the
defense in discovery from another source, but instead has altered the redactions in the
FBI ?le so that information provided to the defense in discovery from other sources is
also available to the defense in the FBI (emphasis in original). The Government?s
statement, besides being confusing, appears to provide it with the ability to use redacted
information during other portions of the trial if it can point to how the redacted
information was provided to the Defense in discovery apart from the FBI ?le. If this is
indeed the Government?s position, the Defense requests the Court to not allow the
Government to redact this information. If the information has been provided to the
Defense in other forms of discovery, then the Government?s basis for redacting longer a consideration. Additionally, by allowing the proposed redactions,
the Government would bene?t from the confusion that would undoubtedly follow given
the inability of the Court and the Defense to identify which information has been
previously provided in the voluminous discovery and which information has not.
Whether the Government is able to use any redacted information from the FBI ?le should
not be placed into such doubt. As such, the Court should require the Government to
identify any such information and subsequently deny the Government?s request for
authorization of the identi?ed redactions.

DOS Records. The Government has indicated that it ?will not use any portion of the
redacted information not disclosed to the defense during any portion of the trial. This
includes rebuttal and rule of completeness if the defense introduces or references
anything in the substitution.? See Government in camera and ex parte Motion for
Authorization of a Redactions of Department of State Records under MRE 505(g)(2) and
RCM 70l(g)(2), p. 5.

What is the extent of the redactionsl substitutions?

Has the Government narrowly tailored the substitutions to protect a Governmental
interest that has been clearly and speci?cally articulated??

Does the substitution provide the Defense with the ability to follow-up on leads that the
original document would have provided?

Do the substitutions accurately capture the information within the original document??
Is the classi?ed evidence necessary to rebut an element of the 22 charged offenses,
bearing in mind the Government?s very broad reading of many of these offenses??

j)
k)

1)



25814

Does the summary strip away the Defense?s ability to accurately portray the nature of the
charged leaks?

Do the substitutions prevent the Defense from fully examining witnesses?

Do the substitutions prevent the Defense from exploring all viable avenues for
impeachment?

Does the Government intend to use any of the information from the damage assessments?
Is so, is this information limited to the summarized document provided by the
Government? If the information intended to be used by the Government is not limited to
the summarized document, does the Defense in fairness need to receive the classi?ed
portions of the documents to put the Govemment?s evidence in proper context?

Does the original classi?ed evidence present a more compelling sentencing case than the
proposed substitutions by the Government?

Do the proposed substitutions prevent the Defense from learning names of potential
witnesses?

Do the substitutions make sense, such that the Defense will be able to understand the
context?

in) Is the original classi?ed evidence necessary to help the Defense in formulating defense

I1)

strategy and making important litigation decisions in the case?

Is it unfair that the Government had access to the unclassi?ed version of the damage
assessment and the Defense did not? Does that provide a tactical advantage to the
Government?

CONCLUSION

8. The Defense requests that this Court deny any proposed redactions or substitutions from the
DHS document, CIA Report, FBI ?le, and DOS records where, considering the mindset of
Defense counsel (including the questions referenced herein), the Court concludes that the
classi?ed information itself is necessary to enable the accused to prepare for trial.

Respectfully submitted,



DAVID E. COOMBS
Civilian Defense Counsel

25815

OFFICIAL USE ONLY .

UNITED STATES OF AMERICA
v. Supplement to

Prosecution Article 13 Witness List
Manning, Bradley E.

PFC, U.S. Army,

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

4 September 2012



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

Maj Timothy Zelek, Headquarters and Service Battalion, Quantico, VA, 22134,

The United States reserves the right to supplement this witness lists based on the
Defense?s supplemental witness list, and supplemental motions.

If the Defense intends to produce the witness who is listed above, the Defense must
provide a separate, appropriate request for that witness in accordance with Rule for Courts-
Martial (RCM) 703 and the standard articulated in United States v. Rockwood, 52 98, 105
(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).

ALE DER VON ELTEN
CPT, JA
Assistant Trial Counsel

I certify that I served or caused to be served a true copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 4 September 2012.

(A7

ALEXANDER VON ELTEN
CPT, JA
Assistant Trial Counsel

APPELLATE
FOR OFFICIAL USE ONLY

25816

ha. mink: an nm . I in liismry.-. ?fut: wtl?

h,?m1Hhe ?eh-e 5 A ;1!h.i szcySTKIN The N05 Yaxrl Rt'i'i??H?



APPELLATE 13 .4

PAGE REFERENCED:
PAGE OF PAGES





25817

THE GOOD SOLDIERS. Copyright © 2009 by David Finkel. All rights reserved. Printed in
the United States of America. For information, address Picador, 175 Fifth Avenue, New
York, N.Y. 10010.
www.picadorusa.com
Picador® is a U.S. registered trademark and is used by Farrar, Straus and Giroux under
license from Pan Books Limited.
For information on Picador Reading Group Guides, please contact Picador.
E-mail: readinggroupguides@picadorusa.com
Portions ofthis book originally appeared, in different form, in Tbe Washington Post.
Top photograph on page 118 courtesy of the U.S. Army. All other photographs courtesy
of the author.
Designed by Ahhy Kagan
The Library of Congress has cataloged the Farrar, Straus and Giroux edition as follows:


Finkel, David, 1955The good soldiers / by David Finkel.
p.

cm.

ISBN 978-0-374-16573-4 (hardcover)
1. Iraq War, 2003

Campaigns—Iraq—Baghdad.

History—21st century,

2. Battles—Baghdad—

3. Soldiers—United States—Biography.

Army—Military life—History—21st century.
Baghdad—History—21st century.

4. United States.

5. Counterinsurgency—Iraq—

I . Title.

DS79.764.U6 F56 2009
956.7044'3420973—dc22
2009019391
Picador ISBN 978-0-312-43002-3
First published in the United States by Sarah Crichton Books, an imprint of Farrar, Straus
and Giroux

10

9

8

7

6

5

4

3

2

25818

JULY 1 2, 2007

•t. which was eerily
g along a small girl,
jd burst into tears as

h told the officer in
ind then laughed and
he mosque. Without
»or. w ent past a wide. climbed the steps to
n the\ heard gunfire,
it!v lower roof of the
mmutes later with a
^7. ammunition, and,
nbled lED.
d been brought down
ing his own order to
disgusted.
. he needed to undern sanction it, because
, desk, which was get1 must understand the
things. So did good
oe of those, too. "For
less, he had read the
5 not ignore the cries

105

Iraqi religious leader, which said, in part: "Yes, O Bush, we are
the ones who kidnap your soldiers and kill them and burn them.
We will continue, God willing, so long as you only know the language of blood and the scattering of remains. Our soldiers love
the blood of your soldiers. They compete to chop off their heads.
They like the game of burning down their vehicles."
What a freak 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 in a mosque, including an lED to burn vehicles and
kill soldiers.
Unbelievable.
Shadi ghabees. Coololi khara. Allah je sheelack.
"S/iuiran," Kauzlarich said out loud to the general, keeping his
other thoughts to himself. He made his way to his Humvee to
figure out where to go next and was just settling into his seat
when he was startled by a loud burst of gunfire.
"Machine gun fire," he said, wondering who was shooting.
But it wasn't machine gun fire. It was bigger. More thundering. It was 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 came a second burst.
"Yeah! We killed more motherfuckers," Kauzlarich said.
Now came more bursts.
"Holy shit," Kauzlarich said.
It was the morning's third version of war.

re thev helpless? Yes.
the explanation .somefew davs before by an

One minute and fifty-five seconds before the first burst, the two
crew members in one of the circling Apaches had noticed some
men on a street on Al-Amin's eastern edge.

25819

T ^ ^ 0 0 ^ 0 50L01^1^^

"^ee all those people standing down tbere?"one asked.
"Confirmed," said the other crew member. "That open
courtyard?"
"Roger,"said the first.
Everything tbe crew members in both Apaches were saying
wasbeing recorded, ^o weretheircommunications w i t h t h e
^ l ^ . T o a v o i d confusion,anyone talking identified himself with
acode word.The crew members in the lead Apache,lor exam
pie,were Crazy Horse l ^ . T b e ^ l^person they were communicating with most frequently was H o t e l ^ ^ .
There wasavisual recording of what they were seeing as well,
and what they were seeing now—one minute and lorty seconds
belbre they fired their first burst—were some men walking along
the middle ofastreet, several of whom appeared to be carrying
weapons.
Allmorninglong, t h i s p a r t o f A l A m i n h a d b e e n t h e m o s t
hostile. WbileTyler Andersen hadbeenunderasbade t r e e i n
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, rodftop
chases, and rocket propelled grenades being fired at Bravo Com
pany,and as the fighting continued,it attracted the attention of
NamirNoorEldeen,atwentytwo-year old photographer lor the
Reuters news agency who lived in Baghdad, and ^aeedCbmagh,
lbrty,his driver and assistant.
^ome journalists covering the war did so by embedding with
t h e H . ^ . military. Othersworked independently. Noor-Lldeen
and Cbmagh were among those who worked independently,
which meant that the military didn'tknow they were in A l A m i n .
T b e ^ l ^ d i d u ' t k n o w , a n d neither did the crews of the Apaches,
which were Hying high above A l Amin in a slow, counter
clockw ise circle. From that height, tbe crews could see all of east
A l A m i n , b u t t h e o p t i c s i n t h e l e a d Apache were now Ibcused

tightlvo
shoulder
thirtym
"Oh
lookeda
"Hot^
crew mt
weapons
They
walked^
leading!^
On the 1^
guidedh
tionedfo
witbalo
oneofw
appearec
crosshair
ofthose
"Yup.
six, Cra^
AK-47s
It wa
burst.
"Rogt
of our
"Allr
They
dingbat
structed
"lean
^ever
curve ar^

25820

JULY 1 2, 2007

•e?" one asked,
ember. "That open

\Daches were saying
unications with the
jntihed himself with
d Apache, for exam1 thev were commu• w ere seeing as well,
itc and forty seconds
* men walking along
eared to be carrying
1 had been the most
nder a shade tree in
th occasional gunfire
Jed w ith gunfire and
f ; fired at Bravo Comcted the attention of
photographer for the
and Saeed Cbmagh,
' bv embedding with
ientlv. Noor-Eldeen
-ked mdependently,
e\ w ere in Al-Amin.
ew s of the Apaches,
n a slow, counter! could sec all of east
f w ere now focused

107

tightly on Noor-Eldeen, who had a camera 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's a weapon."
"Hotel Two-six, this is Crazy Horse One-eight," the other
crew member radioed in to the 2-16. "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 of the street were some trash piles.
On the left side were buildings. Now the man with Noor-Eldeen
guided him by the elbow toward one of the buildings and motioned for him to get down. Chmagh followed, carrying a camera
with a long telephoto lens. Behind Chmagh were four other men,
one of whom appeared to be holding an AK-47 and one of whom
appeared to be holding a rocket-propelled grenade launcher. The
crosshairs swung now away from Noor-Eldeen and toward one
of those men.
^
"Yup, he's got one, too," the crew member said. "Hotel Twosix, 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," Hotel 2-6 replied. "We have 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 to a point where some buildings now obstructed the view of the men.
"1 can't get them now," a crew member said.
Several seconds passed as the lead Apache continued its slow
curve around. Now it was almost directly behind the building

25821

108

The GOOD SOLDIERS

that Noor-Eldeen had been guided toward, and the crew members could see someone peering around the corner, looking in
their direction and lifting something long and dark. This was
Noor-Eldeen, raising a camera with a telephoto lens to his eyes.
"He's got an RPG."
"Okay, I got a guy with an RPG."
"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 of the street, before the gunner would have a
clean shot.
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. Just
a little more to go.
Now they could see five of them.
"You're clear."
Not quite. One last tree was in the way.
"All right."
There. Now all of the men could be seen. There were nine of
them, including Noor-Eldeen. He was in the middle, and the others were clustered around him, except for Chmagh, who was on
his cell phone a few steps away.

m

"Light 'em all up."
One second before the first burst, Noor-Eldeen glanced up at
the Apache.
"Come on—fire."
The others followed his gaze and looked up, too.
The gunner fired.
It was a twenty-round burst that lasted for two seconds.
"Machine gun fire," Kauzlarich said quizzically, a half mile
away, as the sky seemed to jerk, and meanwhile, here in east

Al-Amin,
street blew
dead or ne
Noor-Elde
The gu
and fired ;
haps twelv
"Keep '
There \
The trash <
A cloud of
"Keep s
There >
burst. In t l
and then ht
All o f t !
been fired,
lot was silt
down on w
ible as some
who was ta
It was C
He stoo
now he dis.
and minglec
tinued circl

"All righ
"All righ
"We hav
"All righ
"Yeah, w
"Yeah, Ic
"Good si

25822

/
JULY 12, 2007
id the crew memcorner, looking in
id dark. This was
to lens to his eyes.

Al-Amin, nine men were suddenly grabbing their bodies a.
street blew up around them, seven were now falling to the grounv.
dead or nearly dead, and two were running away—Chmagh and
Noor-Eldeen.
The gunner saw Noor-Eldeen, tracked him in the crosshairs,
and fired a second twenty-round burst, and after running perhaps twelve steps, Noor-Eldeen dove into a pile of trash.
"Keep shooting," the other crew member said.

iround, back to an
inner would have a

There was a two-second pause, and then came the third burst.
The trash all arotmd where Noor-Eldeen lay facedown erupted.
A cloud of dirt and dust rose into the air.
"Keep shooting."

nued to curve.
-cc of the men. Just

There were nine of
aiddle, and the othjnagh, who was on

Ideen glanced up at

p. too.
- two seconds,
zicallv, a half mile
ivhile, here in east

There was a one-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 of this took twelve seconds. A total of eighty rounds had
been fired. The thirty-millimeter cannon was now silent. The pilot was silent. The gunner was silent. The scene they looked
down on was one of swirling and rising dirt, and now, barely visible as some of the swirling dirt began to thin, they saw a person
who was taking cover by crouching against a wall.
It was Chmagh.
He stood and began to run. "1 got him," someone said, and
now he disappeared inside a fresh 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.
"We have a bunch of bodies laying there."
"All right, we got about eight individuals."
"Yeah, we definitely got some."
"Yeah, look at those dead bastards."
"Good shooting."

25823

110

The GOOD SOLDIERS

^
"Thank you."
The smoke was gone now and they could see everything
clearly: the main pile ofbodies,some prone,one onhaunches,one
fbldedintoimpossible angles^ Noor Eldeenontopofthetrash^
Chmagh lying motionless on his left side.
"Bushmaster Seven,Crazy Horse One-eight,"they radioed to
Bravo Company, whose soldiers were on their way to the site.
"Location ofbodies Mike Bravo Eive-lbur-fiveeight-eightsixone
seven.They're onastreet in front of an open courtyard w i t h a
bunch ofblue trucks,abunch of vehicles inacourtyard."
"There's o n e g u y m o v i n g d o w n there, but he's wounded,"
someone now said, looking down, scanning the bodies, focusing
on Chmagh.
"This is Oneeight,"the crew member continued on the radio."We also have one individual who appears to be wounded.
Trying to crawl away."
"Roger. We'regonnamovedownthere,"Bravo Company
replied.
"Roger. We'llceasefire,"the Apachecrewrespondedand
continuedtowatchChmagh,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 left leg stayed extended behind him, and
when he tried to lift his head,he could get it onlyalew inches
off the ground.
"E^o you seeashot?"one of the crew members said.
"Ooes he haveaweapon in his hands?" the other said,aware
of the rules governing an engagement.
"No,lhaven'tseenoneyet."
They continued to watch and to circle as Chmagh sank back
to the ground.
"Come on,buddy,"one ofthem urged.

"Allyougott2
N^w,ashad
behind some bui
and when thevw
glimpsed running
ond man was run
approaching.
"Bushmaster,
have individuals^
up bodies and we^
The vanstopp
around to the pas^
"Crazy Horsed
Ready to fire,
Bravo Companv as
who was facedow n
the legs. The seco
back. Were thevi

help?
^Come^^^Eet
Now the second
"Bushmaster,C
But there was^
seat and the t w o m
front ofthe van to^
"They're taking
They had Chma
"ThisisBushm^
They were pulh
"Roger,wehav^
Request permission
They were push

25824

JULY 12, 2007

11 1

"All you gotta do is pick up a weapon," another said.
everything

Now, as had happened earlier, their circling brought them
behind some buildings that obstructed their view of the street,
and when they were next able to see Chmagh, someone they had
glimpsed running up the street was crouching over him, a second man was running toward them, and a Kia passenger van was
approaching.

lunches, one
)f the trash;
\ radioed to
to the site,

"Bushmaster, Crazy Horse," they radioed in urgently. "We
have individuals going to the scene. Looks like possibly picking
up bodies and weapons. Break—"

ight-six-onetvard with a
,-ard."
s wounded,"
jes. focusing

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."

?d on the ra
X- wounded.
vo Company
•sponded and

Ready to fire, they waited for the required response from
Bravo Company as two of the passersby tried to pick up Chmagh,
who was facedown on the sidewalk. One man had Chmagh by
the legs. The second man was trying to turn him over onto his
back. Were they insurgents? Were they people only trying to
help?

? got partway

"Come on! Let us shoot."
Now the second man had hold of Chmagh under his arms.

t h . but again

"Bushmaster, Crazy Horse One-eight," the Apache said again.

ied to get up

But there was still no response as the driver got back in his
seat and the two men lifted Chmagh and carried him around the
front of the van toward the open door.

w ho in slow

ind him, and
a few inches
said.
;r said, aware

igh sank back

"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, we have a black bongo truck picking up the bodies.
Request permission to engage."
They were pushing Chmagh into the van.

mm*

25825

112

The GOOD SOLDIERS

"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.
"Oneeight,clear."
"Come on!"
Afirst burst.
"Clear"
Asecond burst.
"Clear"
A t h i r d burst.
"Clear"
Ten seconds. Sixty rounds. The two men outside of the van
ran, dove, androlledagainsta wallassomeoftheroundsexploded around them. The van continued forward a lew yards,
abruptly jerked backward, crashed into the wall near the men, and
was now enveloped in smoke.

a
^

"lthinkthevan'sdisabled,"acrew member said,but to be
sure,now cameafourth burst,afifth,andasixth—ten more
seconds, sixty more rounds—andthat, atlast, wastheendof
the shooting.
Now it wasamatter of waiting for Bravo Company'ssoldiers
to arrive onthe scene,and here they came,in Humvees and on
foot, swarming acrossathoroughly ruined landscape.The battlefield was theirs now, from the main pile of bodies,to the trash
pilewithNoor-Eldeen, to the shot up houses and buildings, to
the van—insideof which, among thebodies, they discovered
someone alive.
"Bushmaster Six, Bravo Seven," a Bravo Company soldier
called over the radio. "I've got eleven Iraqi KlAs, one small child
wounded.Over."
The Apache crews were listening.
"Ah,damn,"one ofthem said.
"We need to evac this child,"Bravo Seven continued."She's

gotawoundtothebe
togetevac'd.OverB
^Well,it'stheirfa
crew member said
"That'sright,"theA
continued tocirclean^
They saw moreH^
onto the trash pile, rig
^fNoorEldeen'sbodv
"That guy just drov^
"E^idhe?"
"Yeah"
^Well,they'redead
They watchedasol
wounded girl and run^
that was going to evacu
They watched anotl
minutes later cradlinga
boy who had been disc^
fatheBs,whichwasdra^
because that was how a
And then they flew^
andmore Bravo Compar
March, the soldierwho
hadclimbedaguardto^
said quietly and nervous
^nlEL^inallthisshitB
Since then, March ha
d^llyonJune2^,when
Jr.Craig'smemorialserv^
I^l^er, as March saw all^
open, insides exposed, s
he would later explains

25826

JULY 12, 2007

ing the door.

113

got a wound to the belly. Doc can't do anything here. She needs
to get evac'd. Over."
"Well, it's their fault for bringing their kids to a battle," a
crew member said.
"That's r i ^ t , " the other said, and for a few 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
of Noor-Eldeen's body.
"That guy just drove over a body."
"Did he?"

iside of the van
the rounds exrd a few yards,
?ar the men, and
- said, but to be
ixth —ten more
w as the end of
mpanv's soldiers
Humvees and on
cape. The battlelie-, to the trash
ind buildings, to
the\ discovered
lompany soldier
>. one small child

rontinued. "She's

"Yeah."
"Well, they're dead, so—"
They watched a soldier emerge from the van cradling the
wounded girl and run with her in his arms to the army vehicle
that was going to evacuate her to a hospital.
They watched another soldier emerge from the van a few
minutes later cradling a second wounded child, this one a little
boy who had been discovered under a body presumed to be his
father's, which was draped over the boy, either protectively or*
because that was how a dead man happened to fall.
And then they flew on to another part of Al-Amin as more
and more Bravo Company soldiers arrived, one of whom was Jay
March, the soldier who on the battalion's very first day in Iraq
had climbed a guard tower, peeked out at all of the trash, and
said quietly and nervously, "We ain't ever gonna be able to find
an IED in all this shit."
Since then, March had learned how prophetic he was, especially on June 25, when an EFP killed his friend Andre Craig,
Jr. Craig's memorial service had been on July 7, and now, five days
later, as March saw all of the bodies scattered around, blown
open, insides exposed, so gruesome, so grotesque, he felt—as
he would later explain—"happy. It was weird. I was just really

25827

114

The GOOD SOLDIERS

very happy. 1 remember feelingsohappy. W h e n l h e a r d they
were engaging, whenlheard there'sthirteen K I A , I w a s just ^0
happy,because Craig had just died,and it felt like,you know,we
got'em."
As the Apaches peeled off, he and another soldierwentthrough
agate in the wall that the van had crashed into and against which

They had g
Apaches and h^
They had lo^
AK47sandar^
Iraqis.

realized that the one onthebottomwas dead. But the one on

They had r
prefaced the ki
dierswerebeir
there,that thej
ons,thatthe.^^
when it fired at
the van with th
onehadacteda

top was still alive, and as March locked eyes with him, the man

Hadthejou

raised his hands and rubbed his two forefingers together,which

That would

March hadlearned was what Iraqisdid when they wanted to

Aslbrthe t
insurgents or ju

Chmagh had tried to take cover.
There,in the courtyard ofahouse,hidden from street view,
they found two more injured Iraqis,one on top ofthe other. As
March looked closer at the two, who might have been the two
who had been lifting Chmagh into the van, who as far as March
knew had spent the morning trying to kill American soldiers, he

signal the word^i^^^^.
So March looked at the man and rubbed his two forefingers
together, too.
And then dropped his left hand and extended the middle fin^
ger ofhis right hand.
And then said to the other soldier,"Craig'sprobably just sit
ting up there drinking beer, going, ^Hah!That'sallIneeded.'"
And that was the day'sthird version of war.

As lor the fourth version, it occurred late in the day, back on the
EOB, after Kauzlarich and the soldiers had finished their work in
AlAmin
They knew by now about Chmagh and Noor-Eldeen.
They had brought back Noor-Eldeen'scameras and examined
the images to see i f h e wasajournalist or an insurgent.

They would
Whatthev^
soldiers, and th
"Crow.Pavr
walktotheDl
^Those guys did
Inside t h e L
ference, which
before.
"Ourtoppt
tion,"Bushwa^
aroundBaghda^
Iraqi forces to^
takerootincc
countrv.

25828

JULY12,2007

len 1 beard they
^lA. 1 was just ^o
^e.vouknow,we
ierwent through
nd against which
rom street view,
Ol the other. As
ve beenthetwo
^as lar as March
^can soldiers, he
But the one on
th him, the man
together, which
thev wanted to

115

They hadgotten the videoandaudiorecordings from the
Apaches and had reviewed them several times.
They had looked at photographs taken by soldiers that showed
AK47sandarocketpropelled grenade launcher next to the dead
Iraqis.
They had reviewed everything they could about what had
prefaced the killings in east Al Amin, in other words—that soldiers were being shot at,that they didn'tknow journalists were
there,that the journalists were inagroup of men carrying weap
ons, that the Apache crew had followed the rules of engagement
when it fired at the men with weapons, at the journalists, 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.

twolorefingers

A s l o r t h e m e n w h o h a d t r i e d t o h e l p C h m a g h , werethey
insurgents or just people trying to helpawounded man?
They would probably never know.

Itbe middle fin-

What theydid know: the good soldiers were stillthe good
soldiers, and the time had come for dinner.
^

^robablvjustsital!lneeded.'"

dav.backonthe
ed their work in
Eldeen.
IS and examined
.irgent.

"Crow.Payne.Craig.Gajdos.Cajimat,"Kauzlarichsaidonthe
walk t o t h e DEAC. "Right now?Ourguys?They'rethinking,
^Those guys didn'tdie in vain.Not after what we did today."
Inside the D E A C , t h e T ^ s were tuned to Bush'spress conference, which hadbegun in Washingtonjustafew minutes
before.
"Our top priority is to helpthe Iraqis protect their population,"Bushwas saying,"sowe'velaunchedanoffensive in and
aroundBaghdadtogoafter extremists, tobuy more t i m e l b r
Iraqi forces to develop, and to help normal life and civil society
takerootincommunitiesandneighborhoodsthroughoutthe
country.

25829

I^^

The GOOD SOLDIERS

"We're helping enhance the size,capabilities,and efl^ectiveness of the Iraqi security forces so the Iraqis can take over the
defense oftheir own country,"he continued. "We're helping the
Iraqis take back their neighborhoods from the extremists. . ."
This wa^ the fourth version of war.
Kauzlarich watched as he ate."I like this president,"he said.

leven
tackle
^
Eo
sitting i n a d
located ona
but he shook
himanddov
his back. Tb^
soldiers had
drinkof chc
called Boom
quicl^lyover^
toon,liftedh
for the slaps
and yelled at^
Open-handed
until he was
entire midse
they stop an^

25830

UNITED STATES OF AMERICA

)
)

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

)
)
)
)
)
)
)

Prosecution Response to
Defense Supplement
to Motion to Dismiss
for Unlawful Pretrial Punishment
7 September 2012

RELIEF SOUGHT
The United States respectfully requests that the Court deny, in part, the Defense Motion
to Dismiss for Unlawful Pretrial Punishment (Defense Motion) and the Defense Supplement to
Article 13 Motion (Defense Supplement).
BURDEN OF PERSUASION AND BURDEN OF PROOF
As the moving party, the Defense bears the burden of persuasion and must prove any
factual issues necessary to decide this motion by a preponderance of the evidence. See Manual
for Courts-Martial (MCM), United States, Rule for Courts-Martial (RCM) 905(c) (2012). The
Defense bears the burden of establishing an entitlement to sentence credit for a violation of
Article 13. See United States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005) (citing RCM 905(c)(2)).
The nonbinding precedent cited by the Defense discusses the standard the Defense must meet to
raise the issue, not decide the issue.' See United States v. Scaralone, 52 M.J. 539, 543-44 (N-M.
Ct. Crim. App. 1999) (citing United States v. Cordova, 42 C.M.R. 466 (A.C.M.R. 1970)) ("To
raise the issue [of a violation of Article 13], the burden is on the appellant to present evidence to
support his claim of illegal pretrial punishment. Once an appellant successfully does that, the
burden then shifts to the Government to present evidence to rebut the allegation 'beyond the
point o f . . . inconclusiveness.'") (emphasis added). Accordingly, the Defense, as the moving
party, bears the burden to prove a factual matter by a preponderance of the evidence. See King,
supra.
WITNESSES/EVIDENCE
The United States requests that the Court consider the listed Appellate Exhibits and the
Charge Sheet.
The United States may call the following witnesses to testify during the Article 13,
UCMJ (Article 13) hearing:
1. CW04 James Averhart, Brig Officer, Security Battalion, 29 July 2012 to 15 January 2011
2. CW02 Denise Barnes, Brig Officer, Security Battalion, 15 January 2011 to Transfer to JRCF
(19 April 2011)
' The United States stipulates that the Defense has presented enough evidence to raise, but not decide, the issue ofa
potential violation of Article 13, UCMJ.

25831

3. MSgtCraigBlenis, Programs Chief, 29 July2010toTransferto JRCF
4. CPT Joseph Casamatta, Commander, HHC, USAG,29 July 2010tolJuly 2012
5. C0I Daniel Choik^e, Commander, MCB^, 29 July 2010toTransferto JRCF
6. ECpl Jonathan Cline,Guard^Escori, during Incident onl^January 2011
7 COECarl Coffman, Commander, USAG, FtMyer, 29 July 2010to Present
^ GySgt WilliamFuller,Admin Chief, 29 July 2010toTransferto JRCF
9.CW05 Abel Galavi^, Head, Corrections Section, PP^O, PS Division, PSE Branch, 29 July
2010toTransfertoJRCF
10 SSG RyanJordan, Army Liaison atMCB^, 29 July 2010toTransferto JRCF
11. MSgtBrianPapak^ie, Brig Supervisor, 29 July 2010toTransf^rto JRCF
12. CAPT Jonathan Richardson, Medical Officer at Theater Field ConfinementFacility in
^uwait(TFCF),27May20I0to2^July20I0
13. ETC Roberi Russell, General PsychiatristatMCB^, April 2011
14. Mr. Joshua Tank^ersly,Guard^Escori, during Incident onl^January 2011
15. GM2Terrance Webb, Duty Brig Supervisor, during Incident onl^January 2011
16 ECDREve Weber, Medical OfficeratTFCF,27May2010to 2^ July 2010
17 ISG Bruce Williams, 1SG,HHC,USAG,29 July 2010to Present
1^. Maj Timothy ^elek. Deputy Inspector General Marine Corps Base quantico, December
2010
FACTS
The United States stipulates to charges in Defense Motion^6.
Charge Sheet. The
United States disputes that the accused was held in conditions tantamount to solitary
confinement.
Tlie United States stipulates to Defense Motion^7-9.
The United States stipulates to Defense Motion^lO. The United States and Defense
have proposed multiple filing dates, to includel5June 2012,27 July 2012,and7September
2012 for the Defense Motion to Dismiss for Unlawful Pretrial Punishment (Defense Ariicle 13
Motion).
Appellate Exhibit I, Appellate Exhibit
Appellate Exhibit ^EIV,AppeIlate
Exhibit^LV,AppellateExhibitC^IIL
The United States stipulates to Defense M o t i o n ^ l l .
The United States stipulates to Defense Motion^12^ however, the United States disputes
the Defense'sdescription ofthe contents of the emails.
EtGen Flynn did not issue an order to k^eep the accused in maximum custody (MA^),
suicide risl^(SR),orprevention oflnjury (POI).
proffered testimony of Col Choik^e. LtGen
Flynn received reports regarding the accused'sconfinement.
Col Choik^e did not issue an order to keep the accused in MA^,SR, or POL
prof^red testimony of Col Clioik^e. Col Choline received reports regarding the accused^s
confinement.
^I^^LL^T^^^8IT
I^a^^
^tl^a^^^s^

25832

Col Oltman did not issue an order to keep the accused in MAX, SR, or POI. See
proffered testimony of Col Oltman. Col Oltman received reports regard the accused's
confinement. See id.
CW04 Averhart independently decided the accused's custody classification and status
based on his judgment; CW04 Averhart was not influenced by an order from any senior officer.
See proffered testimony of CW04 Averhart.
CW02 Barnes independently decided the accused's custody classification and status
based on her judgment; CW02 Barnes was not influenced by an order from any senior officer.
See proffered testimony of CW02 Barnes.
The members of the Classification and Assignment (C&A) Boards exercised independent
judgment and were not influenced by a commanding officer. See proffered testimony of MSgt
Blenis, GySgt Fuller, SSG Jordan.
The IG report was initiated by Maj Zelek ofhis own volition. See proffered testimony of
Maj Zelek. The report's conclusions were reached independently. See id.
CW05 Galaviz's report and its conclusions were reached independently. See proffered
testimony of CW05 Galaviz.
LEGAL AUTHORITY AND ARGUMENT
Due process protects a servicemember from punishment prior to conviction and
sentencing. United States v. Adcock, 65 M.J. 18, 19-20 (C.A.A.F. 2007) (citing United States v.
McCarthy, 47 M.J. 162, 164-65 (C.A.A.F. 1997)). The nature of the government function and
accused's interest affected by the governmental action determine the procedures required to
satisfy due process. See Goldberg v. Kelly, 397 U.S. 254, 263 (1970) (quoting Cafeteria &
Restaurant Workers Union, etc. v. McElroy, 367 U.S.886, 895 (1961)). Arbitrary or purposeless
restrictions violate Article 13, UCMJ (Article 13). United States v. James, 28 M.J. 214,216
(C.M.A. 1989). Furthermore, a government agency must abide by its own regulations "where
the underlying purpose of such regulations is the protection of personal liberties or interests."
Adcock, 65 M.J. at 23 (quoting United States v. Dillard, 8 M.J. 213,213 (C.M.A. 1980)).
Arbitrarily placing a detainee in restrictive conditions without consideration of factors relevant to
the detainee violates Article 13 and due process. See United States v. Zarbatany, 70 M.J. 169,
174 (C.A.A.F. 2011) (citing United States v. King, 61 M.J. 225, 228-29 (C.A.A.F. 2005)); see
also United States v. Best, 61 M.J. 376, 390 (C.A.A.F. 2005) (citing Concrete Pipe & Prods, v.
Constr. Laborers Pension Trust, 508 U.S. 602, 617 (1993) (deciding that although
servicemember does not have a constitutional right to a sanity board, the board, once ordered,
must be conducted in a manner consistent with due process, which includes the right to a fair and
impartial adjudicator).
Independent decisions reached during administrative processes uphold the accused's right
to procedural due process. The Brig's decision makers, to include the Brig commanding
officers, CW04 Averhart and CW02 Barnes, exercised independent judgment. The members of
APPELLATE EXHIBIT,
Page
ofPagcfs)

25833

the C&A Boards also reached conclusions based on their independent assessments. The emails
cited by the Defense describe reports sent to members in the Marine Corps Base quantico
(MCB^) chain ofcommand.^ The chain of command was reasonably interested inamatter
garnering media attention. The emails demonstrate the concern within the chain ofcommand for
aSoldier'ssafety and interest in being informed. Accordingly,the exercise of command
responsibility does not amount to improper influence. The Brig commanding officers and staff
will testify that they exercised independentjudgment in making their recommendations and
determinations. Therefore, the chain of command'slimited involvement did not violate
procedural due process.
Under Navy Instructions, commanding generals ofMarine Corps installations maintain
responsibility for confinement facilities. U.S.Department ofNavy Instructionl640.9C
(SECNAVINST 16409C)Art1201(5)(d)at16to17(3 January2006)("[CJommanding
generals ofMarine Corps installations, through the chain ofcommand, are directly responsible
for operations of confinement facilities within their claimancy/installation."); .^^^^^.^^U.S.
Department ofthe Army Regulationl90 47(AR 190-47), The Army Corrections System, para.
1-4(h)(15 June 2006)(stating that commanders ofinstallations are responsible for the safe
operation ofthe local Army correctional facilities and compliance with policies set forth in AR
190-47). Furthermore, Navy Instructions describe chain ofcommand involvement as "essential"
to theoperation of confinement facilities SECNA VINST 16409C Art 1201(5)(d)atl6.
The Defense alleges that concern for the accused'ssafety and receipt ofreports on the
accused'sconfinement amounted to improper influence.
Defense Supplement ^^20,31,33.
Acommander'sreceipt ofreports does not amount to unlawful command influence because the
commanders at MCB^ did not accuse the accused nor conveneacourt-martiaL ^^^^^^^^^^
^^^^^.^v^.^^^,68MJ.108, 128 2 9 ( C A A F 2009)(holdingthat interest in the administrative
proceeding as part ofofficial capacity is not unlawful command influence). Here, the chain of
command at MCB^ properly maintained awareness and received reports as commanding
officers. Indeed, the involvement ofthe chain ofcommand is explicitly encouraged by the Navy
Instructions^^^ SECNAVINST 16409C Art 1201(5)(d)at16Accordingly,the limited
involvement by the chain of command in the accused'sconfinement did not amount unlawful or
improper influence.

^ During the accused's confinement, LtGen Flynn was the Commanding General, Marine Corps Combat
Development Command. Col Choike was the garrison commander, Marine Corps Base Quantico. Col Oltman was
the commanding officer of the MCBQ Security Battalion, which consisted of the pretrial confinement facility (the
Brig), military police, and fire department at MCBQ. Therefore, the chain of command went upfi-omthe Brig
commanding officer, CW04 Averhart or CW02 Barnes, to Col Oltman as head of Security Battalion, to Col Choike
as garrison commander of MCBQ, to LtGen Flynn.
4

1
APPELLATE EXHIBIT_
Page
of Pagc(s)

25834

CONCLUSION
The accused is entitled to no n^orel^ban seven d9vseon^nen^en^ credit for the time he
s^ent on SRafterapsychiatrist recommended removing him from SR. Therefore, the accused's
confinement did not otherwise violate Article 13 and the accused is not entitled to additional
confinement credif For the foregoing reasons, the United States respectfully requests that the
Court deny,in part, the Defense Motion and Defense SupplemenL

ALEXANDERS^O^ ELTEN
CPT,JA
AssistantTrial Counsel

Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on7September 2012.

ALEXANDER S. VON ELTEN
CPT, JA
Assistant Trial Counsel

APPELLATE EXHIBIT,
Page
of Page(s)



0 25835

UNITED STATES OF AMERICA
v.
COURT ORDER:
Manning, Bradley E. Mental Health Professionals

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

DATE: 11 September 2012
Fort Myer, Virginia 22211

Suspense: 28 September 2012



TO: Dr. Kevin Moore

1. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Unifonn Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution and the defense in
United States v. PFC Manning regarding the behavior, mental health, and suicidal ideations of
PFC BRADLEY MANNING ?a that you observed and/or treated from 1
January 2011 to 10 August 2011 and to produce to the prosecution all mental health records of
PFC Manning, including notes, from 1 January 2011 to 10 August 2011.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washington, l03rd Avenue
SW, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058,

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions and pass your
contact information to the Defense Counsel so he may also ask his questions.

5. You will comply with this court order no later than 28 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ORDERED this 11th day of September 2012 in chambers.

ta/%

DENISE R. LIND
Colonel, U.S. Army
Chief Judge, Judicial Circuit

25836

UNTTEDSTATESOF AMERICA

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

COURTORDER:
Mental Healtli Professionals
DATE: 11 September 2012
Suspense: 28 September 2012

TO: Dr.KennetbDel^errera
1. As the Military Judge presiding over the above-captioned General CourtMartia1,Ihave
determined, pursuant to Article 46, Uniform Code ofMilitaryJustice(10U.S.C.^846), that you
have information which is required to provide in the above referenced case.
2. You are directed to respond to all questions asked by the prosecution in United Statesv.PFC
Matmingregardingthe behavior, mental health, and suicidal ideationsofPFC BRADLEY
(b) (6)
4)thatyouobservedand^ottreatedduringAugust2009andto
produce all mental health recordsofPFC Manning, including notes, during August 2009.
3. The records will be placed inasealed envelope and provided to the Trial Counsel, MAJ
AshdenFein, O^ce ofthe Staff Judge Advocate, Military District ofWashington,103rdAvenue
S^,Building32,Suitel00,FortLesleyJMcNair,DC,20319 5058,(b) (6)
4. Either call or email theTrial Counsel at the phone number or email address listed above to
provide your contact information so theTrial Counsel may ask his questions.
5. You will comply with this court orderno later than 28 September 2012.
6. Should the requirements ofthis Court Ordernot be complied witb,aWarrant of Attachment
may be issued and executed to compel production ofthe records and you may be ordered to
appear before the court to show cause as to why the court'sorder has not been carried out.
Willful refusal to produce duly subpoenaed evidence foracourt-martial may be prosecuted asa
crime againsttbe United States (Article 47,Unitbrm Code ofMilitary Justice (10USC^847)).
So ORDEREDtbisllth day ofSeptember2012in chambers.

DENISER.LIND
Colonel, U.S. Army
ChiefJudge, IstJudicial Circuit

0 0 25837

UNITED STATES OF AMERICA
V.
COURT ORDER:
Manning, Bradley E. Mental Health Professionals

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

DATE: 11 September 20l2__
Fort Myer, Virginia 22211

Suspense: 28 September 2012



TO: Dr. Peter Resweber, Air Education Training Center (AETC)/Mental Health Flight
(SGOW), Altus Air Force Base, OK

1. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY

that you observed and/or treated during June 2009 and to
pr uce men ea recor of PFC Manning, including notes, during June 2009.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden ein, Office of the Staff Judge Advocate, Military District of Washington, l03rd Avenue
SW, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058,

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 28 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ORDERED this 1 1th day of September 2012 in chambers.



DENISE R.
Colonel, U.S. Army
Chief Judge, Judicial Circuit

/it 30?

25838

UNITED STATES OF AMERICA
v.
COURT ORDER:
Manning, Bradley E. Mental Health Professionals

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

DATE: 11 September 2012
Fort Myer, Virginia 22211

Suspense: 28 September 2012



TO: Dr. Joseph Gretsch

1. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING that you observed and/or treated during September 2009 and to
produce all mental health records of PFC Manning, including notes, during September 2009.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washington, l03rd Avenue
SW, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058,

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 28 September 20l2.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ORDERED this 1 1th day of September 2012 in chambers.



DENISE R. LIND
Colonel, U.S. Army
Chief Judge, Judicial Circuit

A2 310

0 25839

UNITED STATES OF AMERICA

v.
COURT ORDER:
Manning, Bradley E. Mental Health Professionals
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall DATE: 11 September 2012
Fort Myer, Virginia 22211 Suspense: 28 September 2012

TO: Dr. Edan Critch?eld

1. As the Military Judge presiding over the above-captioned General Court-Martial, have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have infomiation which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING that you observed and/or treated during May 2010 and to
produce all mental health records of PFC Manning, including notes, during May 2010.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washington, l03rd Avenue

sw, Buildini 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058,

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 28 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court's order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ORDERED this 1 day of September 2012 in chambers.

g/M

DENISE R. LIND
Colonel, U.S. Army
Chief Judge, Judicial Circuit

#11? 311

0 25840

UNITED STATES OF AMERICA

V.

COURT ORDER:

Manning, Bradley E. Mental Health Professionals

PFC, U.S. Army,

HI-IC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 2221]

DATE: 11 September 2012
Suspense: 28 September 2012



TO: Dr. Martin Leibman, US Army Medical Activity, Fort Lee, VA 23801

1. As the Military Judge presiding over the above-captioned General Court?Manial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You an directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING that you observed and/or treated during December 2009 and to
produce all mental health records of PFC Manning, including notes, during December 2009.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washington, l03rd Avenue

sw, Buildini 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5053, 1

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 28 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (l0 U.S.C. 847)).

So ORDERED this 1 day of September 2012 in chambers.

DENISE R.

Colonel, US. Army
Chief Judge, Judicial Circuit

/if



. 25841

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

DATE: 11 September
Fort Myer, Virginia 22211

Suspense: 28 September 2012

UNITED STATES OF AMERICA

v.
COURT ORDER:
Mnnina. Bradley E. Mental Health Professionals
PFC, U.S. Army,




T0: CPT Michael Worsley, Medical Detachment (Rear), 9700 Tank Trail Road, Joint
Base Lewis-McClIortl, WA 98433

1. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined. pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING that you observed and/or treated from 30 December 2009 to 30
May 2010 and to produce all mental health records of PFC Manning, including notes, from 30
December 2009 to 30 May 2010.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Office of the Staff Judge Advocate, Military District of Washinitonl 103rd Avenue

SWI Buildini 32? Suite 100. Fort Lesley J. McNair, DC, 20319-5058,

4. Either call or email the Trial Counsel at the phone number or entail address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 28 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ORDERED this 11th day of September 2012 in chambers.



DENISE R. LIND
Colonel, U.S. Army
Chief Judge, udicia] Circuit

AE 313

. 25842

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

DATE: _ll September 2012
Suspense: 14 September 2012

UNITED STATES OF AMERICA

v.
COURT ORDER:

Manning, Bradley E. Mental Health Records
PFC, U.S. Army,




T0: LTC Rolanda Colbert, Commander, Joint Regional Correctional Facility, Fort
Leavenworth, Kansas

1. As the Military Judge presiding over the above-captioned General Court-Martial, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to produce all mental health records of PFC BRADLEY MANNING
-), including notes, ?om 30 June 2009 to 31 May 201 l.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden ein, Of?ce of the Staff Judge Advocate, Military District of Washington, l03rd Avenue
SW, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058,

4. You will comply with this court order no later than 14 September 2012.

5. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ORDERED this 11th day of September 2012 in chambers.



DENISE R. LIND
Colonel, U.S. Army
Chief Judge, Judicial Circuit

A9 3:4

0 25843

UNITED STATES OF AMERICA

vC

COURT ORDER:

Manning, Bradley E. Mental Health Professionals
PFC, U.S. Army, .

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

Fort Myer, Virginia 2221]

DATE: 11 September 2012
Suspense: 28 September 2012



TO: Dr. David I-lutcheson-Tipton

1. As the Military Judge presiding over the above-captioned General Court?Martia1, I have
determined, pursuant to Article 46, Uniform Code of Military Justice (10 U.S.C. 846), that you
have information which is required to provide in the above referenced case.

2. You are directed to respond to all questions asked by the prosecution in United States v. PFC
Manning regarding the behavior, mental health, and suicidal ideations of PFC BRADLEY
MANNING that you observed and/or treated during June 2010 and to
produce all mental health records of PFC Manning, including notes, during June 2010.

3. The records will be placed in a sealed envelope and provided to the Trial Counsel, MAJ
Ashden Fein, Of?ce of the Staff Judge Advocate, Military District of Washington, 103rd Avenue
SW, Building 32, Suite 100, Fort Lesley J. McNair, DC, 20319-5058,

4. Either call or email the Trial Counsel at the phone number or email address listed above to
provide your contact information so the Trial Counsel may ask his questions.

5. You will comply with this court order no later than 28 September 2012.

6. Should the requirements of this Court Order not be complied with, a Warrant of Attachment
may be issued and executed to compel production of the records and you may be ordered to
appear before the court to show cause as to why the court?s order has not been carried out.
Willful refusal to produce duly subpoenaed evidence for a court-martial may be prosecuted as a
crime against the United States (Article 47, Uniform Code of Military Justice (10 U.S.C. 847)).

So ORDERED this 11th day of September 2012 in chambers.

DENISE R.

Colonel, US. Army
Chief Judge. Judicial Circuit

/11? 3/5

. 0 25844

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE SUPPLEMENT TO
3 AUGUST 2012 MOTION FOR
JUDICIAL NOTICE AND
ADMISSION OF PUBLIC
STATEMENTS

V.

MANNING, Bradley E., PFC

U.S. Army,
Headquarters an Hea quarters Company, U.S.

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

DATED: 13 SEPTEMBER 2012



RELIEF SOUGHT

1. PFC Bradley E. Manning, by and through counsel, moves this court, pursuant to Military
Rule of Evidence (M.R.E.) 201 and M.R.E. 801 to take judicial notice of the statements
cited in paragraph 5 of this motion.

BURDEN OF PERSUASION AND BURDEN OF PROOF

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

FACTS

3. PFC Marming is charged with ?ve specifications of violating a lawful general regulation, one
specification of aiding the enemy, one specification of disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight specifications of communicating
classi?ed information, live specifications of stealing or knowingly converting Government
property, and two specifications of knowingly exceeding authorized access to a Government
computer, in violation of Articles 92, 104, and 134, 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 201 1. The current charges were preferred on 1 March 2011.
On 16 December through 22 December 201 1, these charges were investigated by an Article 32
Investigating Officer. 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 Wil
APPELLATE EXHIBIT Q10

PAGE REFERENCED:
PAGE 0 PAGES



. . 25845

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.

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 C.

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
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 briefing

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

. . 25846

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 G.

The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and
Chairman of the Committee on the udiciaty, 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 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 H.



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. 20l(b)(l). Under this category of adjudicative facts, it is not the milita1yjudge?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, 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. U.S. v. Needham_ 23 M.J. 383, 385 (C.M.A. l983)(taking judicial notice
of Drug Enforcement Agency publication).

8. In addition to judicial notice being appropriate for a periodical, it is appropriate for judicial
notice to be taken of newspaper reports. US. v. Cunningham, 27 M.J. 899

. . 25847

l989)(taking judicial notice of news reports regarding an Admiral?s non-judicial punishment
because the event was widely known throughout the Coast Guard), see also, US. v. Floyd, 2000
WL 35801774 (ACCA 2000)(taking judicial notice that news articles asserted a victim was
harassed and murdered due to homosexuality). Moreover, it is appropriate to take judicial notice
of Congressional proceedings. US. v. Darby, 312 U.S. 100 at 109 (1941). The key
requirement for judicial notice under this category is that the source relied upon must be reliable.

9. Under M.R.E. 201 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. I 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).

10. 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. 20l(b)(2). Each statement is capable of accurate and ready
determination, as each appeared in an official press release or mainstream news publication.
Indeed, many of the quotes are available in of?cial releases and a quick web search for the
substance of each quote results in reports from multiple media outlets. Moreover, the accuracy
of the sources cannot be reasonably questioned. The statements were made by high?level
government officials in their of?cial capacities 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. 20l(b)(2)

B. The statements are admissible as non-hearsay under M.R.E. 80l(d)(2)

11. 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.? 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
government?s contention that it should not have to offer explanations for the statements because
the government?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 govemment?s argument is troubling
and cannot 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
the configuration of a party to which it is applicable, then the de?nition of that

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



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
80l(d)(2). Id

12. Like American Tel. Tel. C0., 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.

13. The statements are admissible under M.R.E. M.R.E. 80l(d)(2)(B) establishes
that ?a statement of which the party has manifested the party?s adoption or belief in its truth?
quali?es as non-hearsay. While there is no military court on point and a split exists within the
Federal courts, the Defense believes the line of cases following US. v. Morgan, 5 81 F.2d 933
(C.A. D.C. 1978). The Morgan court addressed the admissibility of an informant?s statements
by looking at the plain meaning of F.R.E. The court admitted the informant?s
statements, noting ?there is nothing in the history of the Rules generally or in the Rule
80l(d)(2)(B) particularly to suggest it does not apploy to the prosecution in criminal cases.? Id.
at 938. The court was particularly persuaded by the fact that the Government had manifested its
belief in the informant?s statements. Id. at 938.

14. The court in US. v. Kattar, 840 F.2d 1 18, 130 (1st Cir. 1988) also 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 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.

15. Here, like in Kattar, the parties have adopted the truth of their statements. While these
statements were not made as part of a court ?ling, each statement for which judicial notice has
been requested was made by a high ranking government of?cial 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. 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).

16. 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. US, 35
Fed. Cl. 246, 256 (Fed. C1. 1996), see also, DAVID A. SCHLUETER, STEPHEN A.
SALTZBURG, LEE D. SCHINASI AND EDWARD J. IMWINKELRIED, MILITARY
EVIDENTIARY FOUNDATIONS, at p.421 (Matthew Bender Co. 2010). 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.

17. 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 carmot 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,
811-812 (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. Van Griffin, 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, 85] (6th Cir. 1996)(n0ting that the federal
government is a party-opponent of the defendant in a criminal case and a statements by a paid
informant were admissible).

18. 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 nor are they statements from low-level government
bureaucrats. Rather, each individual serves as a high-level government of?cial; serving as
President or Vice-President, heading a government agency with the ability to bind the
government through policy-making decisions, or, as part of his employment, speaking 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. No
doubt, the Government has made common practice of calling the instant agencies ?equity
holders.? Because the statements were made by party opponents within the scope of their

. . 25850

employment and the party opponents have the ability to bind the sovereign their statements
should be deemed admissible under M.R.E.

C. Statements appearing in newspaper articles are admissible under M.R.E. 803(6) and
807

19. The proffered statements, as printed in various new outlets, are admissible under the M.R.E.
803(6) business records exception. The plain reading of M.R.E. 803(6) supports this position. It
states:

A 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 Mil. R. Evid. 902(11) or any other statute
permitting certi?cation in a criminal proceeding in a court of the United States.

20. Here, the proffered news reports comport with the requirements of M.R.E. 803(6). The
news reports are in the form of a published article and were made at or near the time of the
reported events. The authors of the articles have personal knowledge of the statements because
they conducted an interview, were present for the uttering of the statements or reported on an
official press release. Moreover, government Branches and Departments and news agencies
make and keep such brie?ngs, releases and news reports in the course of their regularly
conducted business activities.2 Finally, the authenticity of the reports is not at issue because
M.R.E. 902(6) allows for self-authentication of ?printed material purporting to be newspapers or
periodicals.? Because the mandates of M.R.E. 803(6) are satis?ed, the news reports at issue are
admissible under the business records exception to the hearsay rule.

21. This position is supported by the 6th Circuit?s opinion in US. v. Reese, 568 F.2d 1246 (C.A.
Mich 1977). There, the court considered a scrapbook of newspaper clippings maintained by
hospital staff and found the scrapbook admissible under the business records exception. The
court appeared dismissive of concerns that the contents of the newspaper article were hearsay,
holding, ?[t]he fact that the item in the newspaper was factually written by a newspaper
employee and not an employee of the hospital is not determinative of the exhibit's admissibility
since the rule speci?cally provides that the ?memorandum, report, record, or data compilation, in
any form? could be made ?from information transmitted by, a person with knowledge.? In this
instance, the hospital itself would qualify as a ?person with knowledge.? Id. at 1152. Again, the
authors of the offered news reports have the requisite knowledge and qualify as a person with
knowledge for the purposes of M.R.E. 803(6). Id. As such, any hearsay hurdle presented by the
news reports are cleared with M.R.E. 803(6).

2 Indeed, a number of the statements are included in official press releases available on the websites of the White
House, Congress, Department of Defense and Department of State.

7

. . 25851

22. Likewise, the proffered statements, as printed in various news outlets, are admissible under
the plain reading of the residual hearsay exception found in M.R.E. 807. The rule states:

A statement not speci?cally covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness is not excluded by the hearsay rule if
the court determines (A) the statement is offered as evidence of a material fact; (B)
the statement is more probative on the point for with it is offered than other
evidence which the proponent can procure through reasonable efforts; and (C) the
general purposes of these rules and the interest of justice will best be served by
admission of the statement into evidence.

23. Here, each of the three prongs required by M.R.E. 807 is satis?ed. First, the news reports
are offered as evidence of a material fact. During the pre-sentencing phase of trial, if necessary,
PFC Marming is permitted to offer matters in extenuation and mitigation. R.C.M. 1001(c)(1)(B).
Here, the statements in question are offered to show that high-level Government of?cials made
statements indicating there was minimal damage by the alleged leaks. Because evidence that the
alleged leaks caused minimal damage would tend to lessen PFC Marming?s punishment it is
evidence of a material fact. Second, the statements offered are more probative on the point of
damage than those that could otherwise be procured through reasonable effort. While the
Defense could certainly contact members of the Executive and Legislative branches and
Departments of State and Defense, such statements would not carry nearly the same weight as
the offered statements from the individuals quoted. Indeed, statements from the President, Vice-
President and Secretaries of Defense and State are far more probative than any other government
employees. Third, justice will best be served by admission of the requested statements. The
issue of damage cause by the alleged leaks will be of the utmost importance during any pre-
sentencing phase of PFC Marming?s trial. Allowing PFC Marming to offer the instant statements
strikes an important balance between presenting the best possible extenuation and mitigation
case and judicial economy. Because newspaper articles qualify as self-authenticating documents
pursuant to M.R.E. 902(6), their reliability should not be reasonably be questioned. Taking
judicial notice of the news reports fosters judicial economy by reducing the amount of witnesses
and testimony that is required in the pre-sentencing phase. As such, the interests of ustice are
served by a ?nding that the news reports are admissible under the residual hearsay exception.
M.R.E. 807.

24. Admission of newspaper articles under the residual hearsay exception is not without
precedent. Dallas County v. Commercial Union Assurance Company, 286 F.2d 388 (C.A. 5th
Cir.1961) is instructive. There, the court turned to a residual hearsay exception-type analysis
when it considered the admissibility of a news article from 1901 offered to show that a clock
tower had caught ?re in the past.3 The court ultimately admitted the document. Pointing to the
dif?culty in obtaining live testimony on the matter and the natural trustworthiness of the news
report, it held, ?It is admissible because it is necessary and trustworthy, relevant and material,
and its admission is within the trial judge's exercise of discretion in holding the hearing within
reasonable bounds.? Id. at 396-398. Here, as discussed above, the news reports are relevant and
material. Moreover, the reports are necessary and trustworthy. Like the author of the news

3 lt is worth noting that the trial judge admitted the article as a record of the newspaper that originally published the
article, though there is no discussion of this theory in the opinion. Id. at 391.

8

. . 25852

report in Dallas County, there was no incentive for the authors of the proffered reports to
fabricate quotes for high ranking Government of?cials. Moreover, the fact that each quote was
reported by multiple news outlets further bolsters their trustworthiness. Because the offered
news reports are necessary, trustworthy, relevant and promote judicial economy4 it is appropriate
to admit them under M.R.E. 807. Id.

D. Official press releases and reports Congressional hearings are admissible under M.R.E.
803(8)

25. The statements included in of?cial press releases and from Representative John Conyers, Jr.
are admissible because they were made as part of an of?cial release or a Congressional hearing
and are a matter of public record. M.R.E. 803(8) establishes:

Records, reports, statements, or data compilations, in any form, of public of?ce or
agencies, setting forth (A) the activities of the office or agency, or (B) matters
observed pursuant to a duty imposed by law as to which matters there as a duty ot
report, excluding, however, matters observed by police of?cers and oother
personnel acting in a law enforcement capacity, or (C) against the government,
factual ?ndings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other circumstances indicate
lack of trustworthiness.

Statements by the President, Secretaries of Defense and State and a Congressman made at a
formal committee hearing clearly fall within this exception. v. ABC Professional Tree
Service, Inc, 832 F.Supp.2d 917 (M.D.Tenn 201 1)(holding Department of Labor press release
fell within hearsay 803(8) exception), see also, Zeigler v. isher?Price, Inc, 302 F.Supp.2d 999,
I021, n10 (N .D.Iowa 2004) (?To the extent the press release can be construed as stating
conclusions or opinions of the [Consumer Products Safety Commission], it also was
admissible?). These statements were made at of?cial functions and in the of?cial capacities of
the speakers.5 Clearly, a report or statement, posted on an of?cial government website?, has
inherent guarantees of trustworthiness and qualifies as an activity of the public of?ce. As such,
the proffered report is admissible. M.R.E. 803(8).

E. The proffered statements are admissible when not offered for the truth of the matter
asserted

26. Should this Court decline to follow one of the theories of admissibility advanced above, the
proffered statements are admissible when not offered for the truth of the matter asserted. Indeed,
the reports and the quotes within them would remain relevant not to show that the alleged leaks

5 Congressman Conyers made his statements at ajudiciary committee discussion on the ?Espionage Act and the
legal and constitutional issues raised by Wikileaks.?

For example,


and I0 l2l6.html

9

. . 25853

did not actually cause harm, but rather to demonstrate that Government of?cials asserted the
United States? position as such. Whether the alleged leaks actually caused harm would not be
offered under this scenario. The articles and reports would show that the Govemment?s official
position was that the leaks caused no harm, not whether the alleged leaks actually did. Because
the reports and statements would still be relevant and would not be offered for the truth of the
matter asserted they would be admissible.

F. All the proffered statements would be admissible under R.C.M. 1001(c)(3)

27. In the event that PFC Manning?s trial enters the pre-sentencing phase and in the event the
rules of evidence are relaxed, each of the statements for which judicial notice has been requested
will be admissible. R.C.M. 1001(c)(3) provides that the ?military judge may, with respect to
mattes in extenuation and mitigation or both, relax the rules of evidence.? Such a relaxation is
contingent on the reliability of the documents being admitted. Here, should the Defense request
invocation of R.C.M. 1001(c)(3), each of the proffered documents would be admissible.

28. First, each document is related to extenuation and mitigation. The statements in question are
from the President, Vice-President, Secretary of State, former Secretary of Defense and a U.S.
Congressman, respectively. Each statement relates to the damage, or lack thereof, of the leaks
for which PFC Marming has been accused. An absence of harm caused by the leaks may tend to
reduce punishment and is, thus, relevant as extenuation and mitigation evidence.

29. Second, each statement is reliable.7 The statements either appeared in an of?cial release, be
it a press release or Congressional report, or were widely reported by reputable news outlets. As
noted earlier, there is scant likelihood that the authors of the news reports fabricated the quotes in
question. Moreover, as discussed, newspaper articles are self-authenticating. M.R.E. 902(6).
Because the statements offered are offered in extenuation and mitigation and are inherently
reliable, they would be admissible under relaxed rules of evidence in a pre-sentencing phase of
trial.

CONCLUSION

30. 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



SHUA J. MAN
CPT, JA
Defense Counsel

7 It should be noted that at no point has the Government contended that the proffered statements were never uttered.

10

ATTACHMENT A

25854

#

^

m

25855

Defense.gov News Release^atement by Pentagon Press Secretary GeoTi Morrell and Sp... Page 1 of 1
serStatement by Pentagon Press Secretary GeoTi
U.S. Department of Defense
Office of the Assistant Secretary of Defense (Public Affairs)

News Release
On the Web:
http://wvw;.defense.oov/Releases/Rglease.a5PX?Rele3seID= 14439
Media contact:+1 (703)697-5131/697-5132
IMMEDIATE RELEASE

Public contact
tittp://www.clefense.qov/landinq/comment.aspx
or+1 (703) 571-3343
No. 340-11
April 24, 2011

Statement by Pentagon Press Secretary Geoff Morrell and Special Envoy for Closure of the Guantanamo Detention
Facility Ambassador Daniel Fried
"It Is unfortunate that several news organizations have made the decision to publish numerous documents
obtained Illegally by Wikileaks concerning the Guantanamo (GTMO) detention facility. These documents contain classified
information about current and former GTMO detainees, and we strongly condemn ttie 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 cane and
diligence in transferring detainees from Guantanamo. The previous administration transferred 537 detainees; to date, the
cunrent administration has transfen-ed 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 will
continue to work with allies and partners around the world to mitigate threats to the United States 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."

http://www.defense.gov/utility/printitem.aspx?print=http://www.defense.gov/releases/relea... 9/12/2012

25856

Guantanamo Files - U.S. Government Statement - NYTimes.com

SI)e yiAu ijork ^tm« Reprints

Page 1 of 2

Al At>t MV .rtV,\IHVM>N
This copy is for your personal, noncommercial use only. You can order presentation-ready copies for distribution to
your colleagues, clients or customers here or use the "Reprints" tool that appears next to any article. Visit
. www.nytreprints.com for samples and additional information. Order a reprint of this article now.

JOHN HAW KHS

Aprn24,2011

A Statement by the United States
Government
"It is unfortunate that The New York Times and other news 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 we 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 ofthe
Guantanamo Review Task Force have not been compromised to Wikileaks. Thus, any given
DAB iUegally 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 will 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/world/guantanamo-files-us-government-statement.ht...

9/12/2012

25857

Guantanamo Files - U.S. Government Statement - NYTimes.com

Page 2 of 2

Ambassador Dan Fried
Special Envoy f o r Closure of the Guantanamo Detention Facility

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

9/12/2012

ATTACHMENT

25858

^Ife

25859

Remarks by the President Mf&r Bipartisan Leadership Meeting | The WmtQ House

Page 1 of2

G
tlomc • Briefimj Rnmit • Speccht^s & Kemai-kii

Search tmieHouss gov

Conlact U«

Scardi

Th« White H Q Q M

OVice of the Pr«ss Secrsiary
For I m m e d i a c Release

July 27, 2010

WATCH THE VIDEO

Remarks by the President After Bipartisan Leadership
Meeting
Ras« Garden

12:30 P.M EOT
July 27, 2010 2.22 PW

THE PRESIDENT: Good afternoon. everytKxly. I just concluded a producllwe diseuaslon wilh the leaders of
both parlies in Congress.

Pit^ident Obama on Bijxirtisan Leadership
Mreting

This was one ofa series of regular meetings that I called for In the Slate of the Union because I think it's important
for us to come together and spealc frankly about the ctiallenges we face and to work through areas wnerc we dont
agree: hc^efullyflnd some areas wttere we do.
Our conversation today focused on an issue that's b^ng discussed every day al kitchen tables across this country - and that's how do we create jobs tf>at people need lo support their families.

EXTENDING
MIDDLE-CLASS TAX CUTS
IT S THE RIGHT THING TO DO

I believe that starts with doing everything we can to support small businesses. These are the stores, the
restaurants, the slarl-ups and other companies that create two out of every three new jobs in this ccuniry - and that
grow into the big businesses that transform industries, liere in America and araund the wortd.
But we know that many of these businesses sHII can't get the loans and the capital they need to keep their doors
open and hire new workers.
Thai's why we've proposed steps (o get them that help - eliminalirg capital gains taxes on inveslmsnis, making it
easier for srrwit lerxfors to support small businesses, expanding successful SBA programs to help these businesses
accees ttie capital that they need.
This is how via create jobs - by Investing In the innovators and entrepreneurs that have always driven our
prosperity.

BLOG POSTS ON THIS ISSUE
Sfptc,lll»r 12, 2012 11:5* AW EOT

These are the kind of common-sense steps that folks from both parties have supponed in the past - steps to cut
taxes and spur private sector growth and Investment. And I hope tt^at In the coming days, we'll once again find
common ground and get this legislation passed. We shouMn i let America's small businesses be held hostage lo
partisan politics - and certainty not al itnis crilicai (ime

We also talked about the need to move forward on energy refomt Tlie Senate is now poised to act before Uie
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 refomi. Inckiding climate legislation, because if we've learned anything from the
tragedy in the Gulf, it's that our cunent energy policy Is unsustainable.
And we can't afford to stand by as our d^endence on foreign oI deepens, as we keep on pumping out the deadly
pollutants that threaten our air and our water andtf\elives and Evelifioods of our pec pie And we can't stand by as
we let China race ahead to create the clean energy jobs and Industries of the future. We should be developing
those renewable energy sources, and creating those hlgh-wage, high skiil jobs hghl here in the United States of
America.
That s what comprehensive energy and climate reform would do. And that's why I Intend to keep pushing this issue
forward.
I also urged the House leaders to pass the necessary funding to support our effbns in Afghanistan and Pakistan. I
know much has been wntten about this in recent days as a result of tlie substantial leak of documents from
Afghan'ialan covering a period from 2004 to 2009.

I'l-esident Obama Discusses the Attack in
Benghazi, Libya
President Obama
condemns the attacks on
an American diplomatic
post in Benghazi, Libya
and praisis the service of
Uiose wlw lost their Ik/es.
Sspumtxr -.2.2012 I 2 . M PM EOT

Annual Census Data on Income, Poverty,
and llialtli Insurance for 2011
The Annual Census data report shews ttiat we
have made progress digging our way cut of the
worst economic crisis since the Great Depresston,
bul families are still struggling Congress must act
on the policies President Obama has put forward
to strengthen the middle class and those trying to
get into it
Septomber 11. 20l2 12:18 PM EDO"

The Hffitltli C m L«w is Saving Americans
Money
According lo a new report, consumers saved more
$2 billion In the past year, thanks lo new rules that
protect people from insurance Industry abuses

http://www.whitehouse.gov/the-press-office/remarks-president-after-bipartisan-leadership-... 9/12/2012

.^tl

Remarks by the President / ^ r Bipartisan Leadership Meeting | The \ ^ t e House
Whie I'm conccmftd about the disclosure of sensiiiu* intormaton from Bia battlefield that could potentially
ieopardize individuals or operations, ttw fact is these documents don't revaai any issues (net haven't already
informed our public detwie on Afghanistan; indeed, they point to the same challenges ihat led me to conduct an
extensive review of out policy last fall.
So let me underscore vi*iat I've said many times: For seven years, we failed to Implement a strategy adequate to
the challenge In this region, the region from which the 9/11 attacks were waged and other attacks against the
United States and our friends and aines have been planned.
Thai's why we've substantially increased our commilment there, insisted upon greater aooounlabllity from oar
partners in Afghanistan and Pakistan, devek>ped a new strategy that can wodt, and put in place a team. Including
one of our finest generals, to execute that plan. Now we have to see that strategy thmugh.

25860

Page 2 of2

VIEW ALL RELATED DLOO POSTS

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And as I told the leaders, I hope the House wil 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.
Finally, during our meeting today, I urged Senator McConnell and others in the Senate 10 wortt with us to fil the
vacancies that continue to plague our judiciaiy. Right now, we've got nominees who've been waiting up to eight
months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly
unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were
qualified to serve. Nevertheless, some in the minority have used parliamentary procedures time and again to deny
them a vote in the lull Senate.
If we want Dur judicial system to work - if wa want lo deliver justice in our courts - then we need judges on our
benches. And I hope Ihat in the coming months, we'll be aljle to wortSenate.
Mow, we don't have many days left before Congress is out f6r the year. And everyone understands thai we're
less than 100 days from an election it's durhg this time that the noise and the chatter about who's up in the polls
and which party is ahead threatens to drown out just about everything else.
But the folks we serve - who sent us here to serve, they sent us here for a reason. They sent us here lo listen
to their voices. They sent us here lo represent their interests-notour own. They sent us here to lead And I hope
that in the coming months, we'll do aveiything in our power to live up to that responsibility Thanks very much.

END

12:37 P M. EOT

W W

W .ti i T E H O U S E . G O V

En PSpPfWI ? Acecssibilily j Copyiloht hkMiAlior | Pr.vaoy Policy [Conlsct
USA.yi>v jDowcKipefi | Ap^ly

n Job

http://www.whitehouse.gov/the-press-office/remarks-president-after-bipartisan-leadership-... 9/12/2012

25861

BBC News - Obama: 'Nothing new' in Wikileaks Afghan records leak

Page 1 of 3

KSRGWAIR

t

Experience comfort
o n a vrhole new scale

F B:Cl

NEy^

BBtP Hoiye > BBC News
Menu

_^
'

^

^

2

-

_ _

O b a m a : ' N o t h i n g n e w ' i n W i k i l e a k s A f g h a n r e c o r d s leak
27 July 10 14:09 ET

Barack Obama has said that the leaking of classified documents on the war in
Afghanistan is a concern, but that it had not revealed any new Information.
In his first public reaction to the leak, the US president said the data justified his decision to
overhaul the US military strategy in Afghanistan.
Wikileaks, which posted the documents on its website, describes them as battlefield and
intelligence reports.
New details, including reports on Osama Bin Laden have emerged from the files.
Several files track Bin Laden, although the US has said it had received no reliable information
on him "in years".
"While I am concerned about the disclosure of sensitive information from the battlefield that
could potentially jeopardise individuals or operations, the fact is these documents do not
reveal any issues that have not already informed our public debate on Afghanistan," Mr
Obama said at a press conference in Washington.
"Indeed they point to the same challenges that led me to conduct an extensive review of our
policy last fall."
"For seven years, we failed to implement a strategy adequate to the challenge in this region,"
he added, pointing out that it was from Afghanistan that the 11 September attacks on New
York and Washington and other terror plots originated.
"That's why we have substantially increased our commitment there, insisted upon greater
accountability from Afghanistan and Pakistan, developed a new strategy that can work. Now
we have to see that strategy through."
Hunt for whistle blower
The Pentagon has launched what a spokesman described as "a very robust investigation" into
who passed the classified documents to Wikileaks.
The Army Criminal Investigation Division has also launched its own inquiry into the breach.
Wikileaks says the documents were compiled by a variety of military units between 2004 and
2009, the majority of them written by soldiers and intelligence officers listening to reports
radioed in by troops on front line deployments.

http ://www,bbc. co. uk/news/mobile/world-south-asia-10781413

9/12/2012

25862

BBC News - Obama: "Nothing new' in Wikileaks Afghan records leak

Page 2 of 3

In August 2006, a US intelligence report placed Bin Laden at a meeting in Quetta, over the
border in Pakistan.
It said he and others - including the Taliban leader. Mullah Omar - were organising suicide
attacks in Afghanistan.
The targets were unknown, the report said, but the bombers were carrying explosives from
Pakistan.
Nearly 200 files concern Task Force 373, a US special forces unit whose job was to kill or
capture Taliban or al-Qaeda commanders.
The records log 144 incidents involving Afghan civilian casualties, including 195 fatalities, the
UK's Guardian newspaper reports.
The Wikileaks dossier includes an incident in June 2007 when the unit engaged in a firefight
with what were believed to be insurgents. An alrstrike was called in.
Seven ofthose killed were Afghan police officers. A further four were injured. The incident was
labelled a misunderstanding.
Share this

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Related to this story:
Analysis: A Nate own goal (26 Jul 101 worw)
The history of US leaks <26 Jui 101 us & Canada)
Excerpts: Leaked US military records (26 Jul 101 us & Canada)
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9/12/2012

25863

Obama on WikiLeaks: 'Documents Don't Reveal Any Issues that Haveirt Already Infor...

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About Political Punch
Political coverage and mujints onpopculturefromABC
News Senior white House Correspondent Jake Tapper
and the ABC News White House team.

By Alex Pepper

JUI27, 2IH0VMpni

Obama on WikiLeaks:
'Documents Don't Reveal
Any Issues that Haven't
Already Informed our
Public Debate'
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is, these documents don't reveal any issues that haven't already informed our

WORLD NEWS

public debate on Afghanistan. Indeed, they point to the same challenges that

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

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Obama on WikiLeaks: 'Documents Don't Reveal Any Issues that Hav^^Already Infor...

Page 2 of 7

WORLD NEWS WITH DIANE SAWTIW

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

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'Now we h»Te to sec 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
ofthis 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
said.
The House is expected to vote today on a war Ainding bill for the conflicts in
Afghanistan and Iraq.
The President spoke after one ofa series of regularly scheduled meetings with
Congressional leaders from both parties - including House Speaker Nancy
Felosi, Senate Majority Leader Harry Reid, Senate Minority Leader Mitch
McConnell, House Minority Leader John Boehner, and House Majority
Leader SlenyHoyer.
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 ofa 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 HDI
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 faH vote in the Senate. The President accused "some in the
minority" of using 'parliamentary procedures time and again' to hold up
these nominations.

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MORE FROM ABC NEWS
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ATTACHMENT

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WASHINGTON, OC 20510-6050

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July 28, 2010
The Honorable Robert Gates
Secretary ofDefense
The Pentagon
Washington, D.C.
Dear Secretary Gates:
Last Sunday, thousands ofclassified 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 of the 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:
1. 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 domain7 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 of tlie 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?

25867

4. What steps is the Departmeot takiog to identify the individoal or iodividuals
who relegsed these documents aod to prevent future leaks ofthis kind?
Thank you for your assistance in this mgtter.
Sincerely,
incerely,

C9rl Levin
Chairman

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25868

\Slo
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tOOO DEFENSE PENTAGON
WASHINGTON, DC 203O1-1O0C

m 16
The Honorable Carl Levin
Chaindfin
Committee on Armed Services
United States Senate
Washington, DC 20510
Dear Mr. Chairman;
Thank you for ycm July 2%, 2010, letter regarding the unauthorizedfisclosureand
publication of classified militMy documents by &e WikiLeaks organization. I share your
concerns about the potential coaq>romise of classified infoxmatiosa and its effect on lha
safdy of out troops, allies, and Af^an partners.
After ooxisnlting wi& the Director oftiieFederal Bureau of Wesdgadon, I have
directed a ihorou^ investigation to determine the scope of any unauQionzed release of
classified infonnation and identify (he person or persons responsible. I have also
established an interagency Mbtmation Review Task Force, led by the Defease
Intelligence Agency, to assess the content of any coagxrorabed iofbimation and the
hnpacts of such a comptomise. Our initial review indicates most ofthe infonnftfaoa
contained in these documents relates to tactical mfUtaty qpwitions. The initial
assessment in no way discounts the risk to national sectn^; however, the review to date
has not revealed any sensitive intelligence sources and medwds compromised by this
disclosure.
The docwnents do contain the names of cooperative Afg)mn nationals and the
Department lakes very senonsly the Taliban threats recently discussed in the press: We
' assess thisriskas likely to cause significant harm or damage to the national security
interests ofthe United States and are examining mitigation qptions. We are woddng
closely -vAth cm alUes to determine what rides our mission partners may 6ce as a result
ofthe disclosure. There is a possibility that additional military documents may be
published by WikiLeaks and the Departmeot is developing courses of acticm to address
thispo^iblUty.
The scope ofthe assessment and nature ofthe iuvestig&Uve process require a great
deal ofdme and effort 1 am committed to investigating dus matter and determining

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25869

appropriate action to reduce ihe risk of any sudi ooa]p:onMses in &efixture.We will
kB«p youinfbirmed as ad^ticnaal infotmatioa becomes available.
Sincerely,

^jfluyjty^^^^

cc:
The Honorable John McCain
Sjanldng Member

ATTACHMENT

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Defense.gov News Transcript: DOD News Briefing with Secretary Gates and Adm. MuUe... Page 1 of 8

U.S. Department of Defense
Office of the Assistant Secretary of Defense (Public Affairs)

News Transcript
On the Web:
littp://www.defense,QOV/T ransalots/TransaiDt.asDX?TranscrlptID=4728
IWedia contact: +1 (703) 697-5131/697-5132

Public contact:
http://www.defense.aov/landinq/comment.asDx
or +1 (703) 571-3343

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

November 30,
2010

DOD News Briefing with Secretary Gates and Adm. Mullen from the Pentagon
SEC. GATES: Good afternoon.
This past February, I established a high-level working group to review the issues associated with implementing a
repeal of the "don't ask, don't tell" law regarding homosexual men and women serving in the military, and based on those
findings to develop recommendations for implementation should the law change. The working group has completed their
woric, and today the department is releasing their report to the Congress and to the American public.
Admiral Mullen and I will briefly comment on the review's findings and our recommendations for the way ahead.
We will take some questions. And then the working group's co-chairs, General Counsel Jeh Johnson and Anry
General Carter Ham, will provide more detail on the report, and answer any questions you might have on methodology, data
and recommendations,
When I first appointed Mr. Johnson and General Ham to assume this duty, I did so with the confidence that they
would undertake this task with the thoroughness, the seriousness, professionalism and objectivity befitting a task ofthis
magnitude and consequence. I believe that a dose and serious reading ofthis report will demonstrate they've done just
that. We are grateful for the service they have rendered in taking on such a complex and controversial subject.
The findings of their report reflect nearly 10 months of research and analysis along several lines of study, and
represent the most thorough and objective review ever of this difficult policy issue and its impact on the American military.
First, the group reached out to the force to better understand their views and attitudes about a potential repeal of
the "don't ask. don't teir law. As was made clear at the time and is worth repeating today, this outreach was not a matter of
taking a poll of the military to detennine whether the law should be changed. The very idea of asking the force to in effect
vote on such a matter is antithetical to our system of government, and would have been without precedent in the long history
of our civilian-led military.
The president ofthe United States, the commander in chief of the armed forces, made his position on this matter
clear, a position I support. Our job as the civilian and military leadership of the Department of Defense was to determine
how best to prepare for such a change should the Congress change the law.
Nonetheless, I thought it critically Important to engage our troops and their families on this issue, as ultimately it
will be they who will determine whether or not such a transition is successful. I believe that we had to learn the attitudes,
obstacles and concerns that would need to be addressed should the law be changed. We could do this only by reaching out
and listening to our men and women in uniform and their families.
The working group undertook this through a variety of means, from a mass survey answered by tens of thousands
of troops and their spouses to meetings with small groups and individuals. Including hearing from those discharged under
the current law.
Mr. Johnson and General Ham will provide more detail on the results of the survey of troops and their families.

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Defense.gov News TranscnpT DOD News Briefing with Secretary Gates and Adm. MuUe... Page 2 of 8

But in summary, a strong majority ofthose who answered the sun/ey - more than two-thirds - do not object to
gays and lesbians serving openly in unifomi. The findings suggest that for large segments of the military, repeal of "don't
ask, don't tell," though potentially disruptive in the short term, would not be the wrenching, traumatic change that many have
feared and predicted.
The data also shows that within the combat arms specialties and units, there is a higher level of discontent, of
discomfort and resistance to changing the current policy. Those findings and the potential implications for America's fighting
forces remain a source of concern to the service chiefs and to me. I'll discuss this later.
Second, the working group also examined thoroughly all the potential changes to the department's regulations and
policies dealing with matters such as benefits, housing, relationships within the ranks, separations and disdiarges. As the
co-chairs will explain in a few minutes, the majority of concerns often raised in association with the repeal — dealing with
sexual conduct, fraternization, billeting arrangements, marital or survivor benefits - could be governed by existing laws and
regulations.
Existing policies can and should be applied equally to homosexuals as well as heterosexuals. While a repeal
would require some changes to regulations, the key to success, as with most things military, is training, education, and,
above all, strong and principled leadership up and down the chain of command.
Third, the working group examined the potential impact of a change in the law on military readiness, including the
impact oh unit cohesion, recruiting and retention, and other issues critical to the performance ofthe force. In my view,
getting this category right is the most important thing we must do.
The U.S. anned forces are in the middle oftwo major military overseas campaigns - a complex and difficult
drawdown in Iraq, a war in Afghanistan - both of which are putting extraordinary stress on those serving on the ground and
their ftimilies. It is the well-being of these brave young Americans, those doing the fighting and the dying since 9/11, that
has guided every decision I have made in the Pentagon since taking this post nearly four years ago. It will be no different on
this issue. 1 am determined to see that if the law is repealed, the changes are implemented in such a way as to minimize
any negative impact on the morale, cohesion and effectiveness of combat units that are deployed, about to deploy to the
front lines.
With regards to readiness, the working group report concluded that overall and with thorough preparation — and I
emphasize thorough preparation - there is a low risk from repealing "don't ask, don't tell." However, as 1 mentioned earlier,
the survey data showed that a higher proportion - between 40 (percent) and 60 percent - of those troops sen/ing in
predominately all-male combat specialties - mostly Army and Marines, but including the Special Operations formations of
the Navy and the Air Force - predicted a negative effective on unit cohesion from repealing the current law.
For this reason, the uniform service chiefs are less sanguine about the working - than the working group about the
level of risk of repeal with regard to combat readiness.
The views of the chiefs were sought out and taken seriously by me and by the authors of this report. The chiefs
will also have the opportunity to explain their - to provide their expert military advice to the Congress, as they have to me
and to the president. Their perspective deserves serious attention and consideration, as it reflects the judgment of decades
of experience and the sentiment of many senior officers.
In my view, the concerns of combat troops as expressed in the survey do not present an insurmountable barrier to
successful repeal of "don't ask, don't tell." This can be done and should be done without posing a serious risk to military
readiness. However, these findings do lead me to conclude that an abundance of care and preparation is required ifwe are
to avoid a disruptive and potentially dangerous impact on the performance ofthose serving at the tip ofthe spear in
America's wars.
This brings me to my recommendations on the way ahead. Earlier this year, the House of Representatives passed
legislation that would repeal "don't ask, don't tell" after a number of steps take place, the last being certification by the
president, the secretary of Defense and the chairman that the new policies and regulations were consistent with the U.S.
military's standards of readiness, effectiveness, unit cohesion, and recruiting and retention.
Now that we have completed this review, I strongly urge the Senate to pass this legislation and send it to the
president for signature before the end of this year.
1 believe this is a matter of some urgency because, as we have seen in the past year, the federal courts are
increasingly becoming involved in this issue. Just a few weeks ago, one lower court ruling forced the department into an
abrupt series of changes that were no doubt confusing and distracting to men and women in the ranks. It is only a matter of

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a ^ K Adm. Mulle... Page 3 of 8
Defense.gov News TranscripfTDOD
NewsBriefing
Briefingwith
withSecretary
SecretaryGGate^nd

time before the federal courts are drawn once more into the fray, with the very real possibility that this change would be
imposed immediately by judicial fiat - by far the most dismptive and damaging scenario I can imagine, and one of the most
hazardous to military morale, readiness and battlefield performance.
Therefore, it is important that this change come via legislative means; that is, legislation infonmed by the review
just completed. What is needed is a process that allows for a well-prepared and well- considered implementation — above
all, a process that carries the imprimatur of the elected representatives of the people of the United States.
Given the present circumstances, those that choose not to act legislatively are rolling the dice that this policy will
not be abruptly overturned by the courts. The legislation presently before the Congress would authorize a repeal of the
"don't ask, don't tell" pending a certification by the president, secretary of Defense and the chairman, it would not harm
military readiness.
Nonetheless, I believe Ihat it would be unwise to push ahead wilh full implementation of repeal before more can be
done to prepare the force ~ in particular, those ground combat specialties and units - for what could be a disruptive and
disorienting change.
The working group's plan, with a strong emphasis on education, training and leader development, provides a solid
road map for a successful full implementation of repeal, assuming that the military is given sufficient time and preparation to
get the job done right.
The department has already made a number of changes to regulations that within existing law applied more
exacting standards to procedures, investigating or separating troops for suspected homosexual conduct - changes that
have added a measure of common sense and decency to a legally and morally fraught process.
I would close on a personal note and a personal appeal. This is the second time that 1 have dealt with this issue
as a leader in public life, the prior case being in CIA in 1992 when I directed that openly gay applicants be treated like all
other applicants; that is, whether as individuals they met our competitive standards. That was and is a situation significantly
different in circumstance and consequence than confronting - than that confronting the United States arnied forces today.
Views toward gay and lesbian Americans have changed considerably during this period, and have grown more
accepting since "dont ask, don't tell" was first enacted. But feelings on this matter can still run deep and divide often starkly
along demographic, cultural and generational lines, not only in society as a whole but in the uniformed ranks as well.
For this reason, I would ask, as Congress takes on this debate, for all involved to resist the urge to lure our troops
and their families into the politics of this issue. What is called for is a careful and considered approach, an approach that to
the extent possible welcomes all who are qualified and capable of serving their country in uniform, but one that does not
undermine out of haste or dogmatism those attributes that make the U.S. military thefinestfightingforce in the world.
The stakes are too high for a nation under threat, for a military at war, to do any less.
Admiral?
ADM. MULLEN: Thank you, Mr. Secretary.
I, too, wish to thank Jeh Johnson and Carter Ham, as well as everyone involved in the working group, for their
extraordinary efforts over much of the past year. I fully endorse their report, itsfindingsand the implementation plan
recommended by the working group.
The working group was given a tall order - indeed, nothing less than producing thefirsttruly comprehensive
assessment of not only the Impact of repeal ofthe law governing "don't ask, don't tell," but also about how best to implement
a new policy across the joint force. As the secretary indicated, the working group surveyed our troops and their spouses,
consulted proponents and opponents of repeal, and examined military experience around the world. They also spoke with
serving gays and lesbians, as well as former members of the military who are gay and lesbian. The result is one ofthe most
expansive studies ever done on military personnel issues, and I applaud the time that was taken to arrive at solid, defensible
conclusions.
More critically, 1 was gratified to see that the working group focused their findings and recommendations, rightly,
on those who would be most affected by a change in the law: our people, all of our people. And so for the first time, the
chiefs and 1 have more than just anecdotal evidence and hearsay to infonr the advice we give our civilian leaders We've
discussed this issue extensively amongst ourselves and with the secretary, and the chiefs and 1 met with the president as

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recently as yesterday.
lonlywantto add three points towhatthe secretary's already laid out.
First,lthink it's noteworthy thattheworking group found strong leadership to be the single most importantfactor in
Implementing any repeal. That may sound fairly obvious,but it isakey,critical point.
We all have our opinions,and those opinions matter. This is without questionacomplex social and cultural issue.
But at the end of the day, whateverthe decision of our elected leaders may be,weln uniform have an obligation to follow
orders. When those orders involve significant change such as this would, we need tofindways to lead the way fdn^ard.
Ourtroops and theirfamiliesexpectthat from us, andlthink the American people doas well.
Second,we've heard loud and clearthatourtroopsalsoexpect us to maintain high standards of conduct and
professionalism, both aswe move fon^an^ in this debate and should repeal occur. We treat people with dignity and respect
in the armed forces, orwe don't last long.1^0 special cases, no special treatment, Ifwe're going to continue to comport
ourselves with honor and hold ourselvesaccountable across the board to impeccably high standards, repeal or no repeal.
Finally,the report shows that however lowthe overall risk of repeal may be with respect to readiness,cohesion
and retention,it is not without its challenges. Wecan best address those challenges by having itwithinour power and our
prerogative to manage the implementation process ourselves.
Should repeal occur,lshare the secretary'sdesire^at it come aboutthroughlegislatlon-through the same
process with which the lawwas enacted, ratherthanprecipitouslythrough the courts. Ifurther hope that such debate In the
Congress will be as fully informed bythe good work done in this report as my advice to the secretary and to the president
i^.
Thank you.
^ : Secretary ^ates, you said itwould be unwise to proceed with repeal until there is moregroundwork. How long
do you envision that process lasting? And is thisaconcernandarecommendation that is shared bythe White House i n asfaras once Congress acts there still beingaperiod in which the policy is in place'^
Admiral Mullen, do you also share that recommendation?
SEC. GATES: Well, first ofall,justtobeclear,whatwe'retalking about is that, should the Congre^ vote to repeal
the law,whatwe are asking for is the time subsequentto that to prepare adequately before the change is implemented in the
force. How long that would take, frankly,ldon't know. There is the-the report, as you will see in the implementation plan,
lays out an ambitious agenda ofthings that need to be done, including not only leadership training buttrainingofamilltary
force of over^million people.
Iwould say this. Ithink we all would expect that if this law is implemented, the president would b e - i s - i f repeal
is passed, the president would be watching very closelyto ensure ^atwe don't dawdle or try to slow-roll this. Solthinkhis
expectationwould be thatwe would prepare as quickly as we properly and comprehensively could, andthen we would be in
aposition to move towardthe certification. But how long thatwouldtakelthlnk-ldon't know.
AOM.MULLEN: There will- there will be level-there isalevel of risk here, as is laid out in the report. Andl
vi^uld hope you spend as much time on the implementation plan as the report, because the implementation plan certainly
from all the military leadership is strongly endorsed should this law change.
And it is inthat implementation plan that the risk levels are mitigated, and principally mitigated through leadership-certainlythe training, the guidance, but the engagement ofthe leadership. And having enough time to do that is critically
important as we would look at implementation. That's what really mitigates any risk that'soutthere.
0: Mr. Secretary,yousaidthechiefs are less sanguine than the working group. What specifically have they told
you abouttheir concerns? And whyinatimeofwar accept any Increase in the level ofrisk?
SEC. GATES: Well, thechiefs will speak forthemselves on Friday. Andthe chairman has spent much more time
with them thanlhave on this, ithink Ithink it's fairtosaythat their concerns revolve around stress onaforce after neariy
10 years ofwar, Andlthink they areconcernedaboutthehigherlevels of negative response from the ground combatunits
and the Special Operations units thatlhave talked about in m y - i n my remarks.

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t think that - I would just like to go back and underscore the chairman's point, and that is the level of risk is tied
intimately to the quality of preparation. And to do this - so I guess I would put it this way: If a court ordered us to do this
tomorrow, I believe the force - the risk to the force would be high, ifwe had no time to prepare.
If we have plenty of time to prepare the force, to prepare the leadership, I think the more effectively we do that
preparation the lower the risk.
Chairman?
ADM. MULLEN; I've engaged, actually, many, many limes with the chiefs over the last - over the last many
months, and so we've had very, very extensive discussions about this. And from the standpoint of a change in the law - I
mean, my perspective is, as what I would call my ~ certainly was my personal opinion, is now my professional view, that this
is a policy change that we can make. And we can do it in a relatively low-risk fashion, given the time and given the ability to
mitigate whatever risk is out there through strong leadership.
In fact, part of this is the fact that we have been at war for so long. We have - one of the discussions about this is
affecting combat effectiveness or combat readiness. I've never been associated with a better military than we arerightnow
and better military leaders. And I have tremendous confidence that should this change, that they'll be able to Implement it,
very specifically.
Q: That's true, but what about the other chiefs?
ADM. MULLEN: Well, again, the chiefs will speak for themselves on Friday.
Q: Mr. Secretary, you raised the issue of combat arms, and the report shows that ofthose polled, 50 percent in
Army combat arms are opposed, 60 percent in Marine combat arms. And there's also the issue of chaplains. The report
says that there's very strong opposition among the chaplains there as well.
What would you say to both groups? How would you deal with this with both groups?
SEC. GATES: Well, the interesting - one ofthe other considerations in this that the - that the report revealed is
even in combat arms units, those who ~ among those who believed they had served with a gay person before, the level of
comfort with going forward was something like 90 percent.
So part of this is a question of unfamiliarity. Part of it is stereotypes. And part of it is just sort of inherent
resistance to change when you don't know what's on the other side.
And so I think - I think that the contrast between the significant levels of concern for those who had - who said
they had never served with someone who is gay as opposed to those who had is an important consideration. But what 1
would say to them is, you know, frankly, if the Congress of the United States repeals this law, this is the will of the American
people, and you are ttie American military, and we will do this, and we will do it right, and we will do everything in our power
to mitigate the concerns that you have.
Q: And on the chaplains?
SEC. GATES: Saying Q: The report - (inaudible) -- a very large number view homosexuality as a sin or an abomination.
SEC. GATES; And the report - the report identifies that the chaplains already serve in a force many of whose
membters do not share their values, who do not share their beliefs. And there is an obligation to care for all. But it also is
clear that the chaplains are not going to be asked to teach something they don't believe in. And so I think that the - I think
the report Is pretty clear on that.
Q: Thank you. Non-"don't ask, don't tell" question quick?
SEC. GATES: Sure.
Q: WikiLeaks. Post-WikiLeaks reaction. What's your sense on wrfiether the information-sharing climate and
environment created after 9/11 to encourage greater cooperation and transparency among the intelligence communities and

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the military led to these three massive data dumps?
And how concerned are you now there may be an overreaction to clamp down on information dispersal because of
the disclosures?
SEC. GATES: One ofthe common themes that I heard from the fime I was a senior agency official in the earty
1980s in every military engagement we were in was thf complaint of the lack of adequate intelligence support. That began
to change with the Gulf War in 1991, but it really has changed dramatically after 9/11.
And cleariy thefindingthat the lack of sharing of information had prevented people from, quote/unquote,
"connecting the dots" led to much wider sharing of infonnation, and 1 would say especially wider sharing of infonnation at the
fnant, so that no one at the front was denied ~ in one ofthe theaters, Afghanistan or Iraq - was denied any information that
might possibly be helpful to them. Now, obviously, that aperture went too wide. There's no reason for a young officer at a
forward operating post in Afghanistan to get cables having to do with the START negotiations. And so we've taken a number
of mitigating steps in the department. I directed a number of these things to be undertaken in August.
First, the - an automated capability to monitor workstations for security purposes, We've got about 60 percent of
this done, mostly in - mostly stateside. And I've directed that we accelerate the completion of it.
Second, as 1 think you know, we've taken steps in CENTCOM in September and now everywhere to direct that all
CD and DVD write capability off the network be disabled. We have - we have done some other things in terms of two-man
policies - wherever you can move infonnation from a classified system to an unclassified system, to have a two-person
policy there.
And then we have some longer-term efforts under way in which we can - and, first of all, in which we can identify
anomalies, sort of like credit card companies do in the use of computer; and then finally, efforts to actually tailor access
depending on roles.
But let me say ~ let me address the latter part of your question. This is obviously a massive dump of infbmiation.
First of all, I would say unlike the Pentagon Papers, one ofthe things that is important, I think, in all of these releases,
whether it's Afghanistan, Iraq or the releases this week, is the lack of any significant difference between what the U.S.
government says publicly and what these things show privately, whereas the Pentagon Papers showed that many in the
government were not only lying to the American people, they were lying to themselves.
But let me - let me just offer some perspective as somebody who's been at this a long time. Every other
government in the world knows the United States government leaks like a sieve, and it has for a long time. And 1 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 negotiattons with foreign nations, I know not."
To me, it appears as dangerous and pernicious as it is novel.'
When we went to real congressional oversight of intelligence in the mid-'70s, there was a broad view that no other
foreign intelligence service would ever share information with us again ifwe were going to share it all with the Congress.
Those fears all proved unfounded.
Now, I've heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer,
and so on. I think ~ I think those descriptions are fairty 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? 1 think fairiy modest.
Q: And on that same subject, On that same subject. Did either of you reach out to any of your counterparts in
advance of this leak and warn them, or even apologize in advance for what might come out?
SEC. GATES: I didn't.

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ADM. MULLEN: 1 did.
Q: Who was it?
ADM. MULLEN: To General Kayani in Pakistan.
SEC. GATES: Yeah?
Q: Sir, you've said that - you know, on "don't ask, don't tell" - you've said that now is the time to do this, largely
because of the threat of legal action. I'm just wondering, if that legal action wasn't looming, how much do you think that this
would ~ this is the right thing to do now?
And I'm wondering just how hard you intend to lobby those on the Hill to get them to sway to the other side.
SEC. GATES: Well, you know, I don't spend much time thinking about the world as I wish it were. The reality is
the court issue is out there, and, in my view, does lend urgency to this.
You know, the question was - has been raised, well, maybe the courts would give us time, to which my answer is,
maybe, maybe not. We just don't know. But the one path we know gives us the time and the flexibility to do this is the
legislative path. And I don't know how fast the courts are going to move on this, but what we've seen seems to be more and
more action in the courts in the last year or two. And that's what gives me a sense of urgency about. My greatest fear is
what almost happened to us in October, and that is being told to implement a change of policy overnight.
Q: Yeah. Mr. Secretary, Senator McCain is now arguing that this report is the wrong report, and that it vron't get
to Ihe bottom of how this could - the repeal could affect unit cohesion or morale. I'm wondering if you or Admiral Mullen
have any reaction to that response to the report.
SEC. GATES: Well, I think - 1 think that, in this respect - and I obviously have a lot of admiration and respect for
Senator McCain - but in this respect, I think that he's mistaken, I think this report does provide a sound basis for making
decisions on this law.
Now, people can draw different conclusions out ofthis report; the comments, for example, in the - in the
evaluation in the report of the higher levels of concern for - among the combat arms units and in the Marine Corps and so
on.
So people can read this and potentially come to different conclusions, but in terms of the data and in terms of the
views of the force, it's hard for me to imagine that you could come up with a more comprehensive approach.
We had ~ we had something on the order of 146,000 people in uniform answer the questionnaire, the survey. We
had something on the order of 40{,000) to 45,000 spouses respond to the - to that survey. Tens of thousands of people
reached in other ways. So I think there is no comparable source of information or data on attitudes in the force than this
report, and it's hard for me to imagine another effort taking a much different approach than this report did.
ADM. MULLEN: And its main thrust was on combat effectiveness, mission effectiveness, readiness, unit
cohesion, et cetera. And that data - again, I agree with the Secretary, you can certainly pick parts of it that read - you might
want to read differently. But the data's very compelling, in particular with respect to those issues. I mean, that was the main
reason for the report.
Q: I wonder if you could talk a little bit more about how you would see this implemented and what you mean by
giving time. For example, would you, say, not have openly gay - if the law is changed, would you not put openly gay
servicemembers into units that units that are about to deploy to Afghanistan in 2011 or so? Would you - would you take ~
would you integrate the non-combat-amns units first? 1 mean, what - could you describe a little bit more ofwhat your
implementation plan would be?
SEC. GATES: Well, first of all, the repeal of the law would not, as I understand it - now I'm not a lawyer ~ but as I
understand it - and maybe Jeh Johnson can address this question for you more authoritatively when he comes up here.
But as I understand il, until we certify, until the president, the secretary of Defense and the chainnan ofthe Joint
Chiefs certify that we - that the U.S. military is ready to implement the law, the repeal, the existing - the cun-ently existing
rules would continue to apply. And so you would have a period of preparation, if you will, that, as 1 indicated eartier, I don't
know necessarily how long that would take.

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ADM. MULLEN: And. Julian-and from my perspective, we are one military. We are one military.
SEC. GATES: Two more questions. Yeah.
0: Mr.Secretary,you have spoken quiteclearly about howyou support the president's position on this, and how
you're urgingthe Senate toact, and howthis needs to be done in an orderly and measured way.
Butyouhaven'tsaid so much overtime aboutyourpersonal beliefs on "don'task,don'ttell."Oo you feel
personallythat it's been unjust orwrong for gays and lesbians not to be able to serve their country openly?Orai^e you
comfortable with the idea of openly integrating the military?
SEC.GATES: Ithinkthat-in my view-one ofthe things that is most important to me is personal integrity. And
apolicyoralaw that in effect requires people to lie gives me-givesmeaproblem. And solthinkits-lmean,we spenda
lot of time in the military talking about integrity and honor and values.
Telling thetruthisaprettylmportantvalue in that scale. It'saveryimportantvalue And so forme, andlthought
the admiral was-that Admiral Mullen was eloquent on this last February-apolicy that requires people to lie a t ^ t
themselves somehow seems to me fundamentally fiawed.
Last question.
0: Earlier in the process. General Conway, when raising concerns aboutthis,fioated the idea of separate
ban^acks and said that, you know. Marines might not be comfortable sharing ban^ackswith openly gay troops. Is that even
on the table,or is that-would the idea of separate barracks, separate housing, separate showers justbeoffthe table?
SEC.GATES;We can getinto the details ofthat-oryoucanwith Jeh and General Ham. Butthebottomlineof
the report Is no separate facilities.
Thank you.

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SlK^THtfjioikS^iaw

The Caucus
The Politics and Governatent Blog of The Times
NOVEMBER 30, 2010, 7:30 PM

Gates on Leaks, Wiki and Otherwise
By EUSABETH BUMILLER

Defense Secretary Robert M. Gates has regularly denounced Wikileaks in recent months
for 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 oftheir 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
v^ll continue to share sensitive information with one another.
"Is this embarrassing? Yes. Is it awlcward? Yes. Consequences for U.S. foreign poUcy? I
think fairly modest."

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ATTACHMENT

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U.S. DEPARTMENT OF STATE
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Home » Secretary ofState Hillary Rodham Clinton » Secretary's Remarks » 2010 Secretary Clinton's Remarks » Remarks by Seer
Kazakh Foreign Minister Saudabayev After Their Meeting

Remarks With Kazakh Foreign Minister Saudabayev After
Their Meeting
Remarks
Hillary Rodham Clinton
Secretary of State
Palace of Independence
Astana, Kazakhstan
December 1, 2010
MODERATOR: (Via translator) Welcome to (inaudible) Ctiairman ofthe OSCE, State Secretary and Minister of Foreign
Affairs of Kazaktistan Saudabayev and U.S: Secretary of State, Hillary Clinton.
FOREIGN MINISTER SAUDABAYEV: (Via translator) (Inaudible), first of all, to thank you for your great interest in the
work of this Astana summit, and wish you fruitful work in the capital of Kazakhstan.
A meeting of the head of our state, Nazarbayev, and the head of the U.S. delegation at this summit, Mrs. Hillary Clinton,
has just finished. And, as President Nazarbayev stressed, the participation of State Secretary Clinton in this (inaudible)
summit is one more testimony to the fact that our strategic partnership between our two countries has been further
developed.
At the meeting there was a deep and detailed exchange of opinions on the most topical issues of this Astana summit,
which was (inaudible) important political results. The two sides have agreed that Kazakhstan's effective chairmanship,
including this first summit, OSCE Summit in the 21st century, is giving an impetus to the further development of
cooperation in the OSCE space.
Another part ofthis summit is the response to transnational threats, especially from outside the OSCE area; above all,
from Afghanistan. Situations in Kyrgyzstan and Central Asian countries has been discussed.
It was stressed that, in order to achieve stability and sustainable development of the region's countries — thought through
policies important and the rule of law, as well as implementation of human rights. The two parties agreed that development
is only achieved through the rule of law with strong democratic institutions. As far as the humanitarian dimension is
concerned, it was noted that Kazakhstan chairmanship was trying to achieve interaction with civil society, and through the
participation of NGOs in OSCE work, also at this summit.

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It was also stressed how important it was to normalize relations of the Islamic world with the West, and to achieve an
effective dialogue between civilizations and to Increase tolerance. These are issues that are always in the central focus of
the Presidents Nazarbayev and Barack Obama. And Kazakhstan will continue to promote those issues.
As the chairman of the Organization of the Islamic Conference, we have paid a lot of attention to further development of
the strategic partnership between our two countries, including in such areas like security, political independence,
economic and trade relations, as well as promotion of democracy. We have reconfirmed our determination to continue our
cooperation in the area of nuclear nonproliferation and disarmament, including the celebration of a Nuclear Security
Summit.
At the meeting in Washington in April this year, at the meeting ofthe two presidents it was also stressed to take
Kazakhstan in the economic area is contributing to the implementation of the joint initiative ofthe United Nations and the
United States on global food security. And this connection of two countries has recently started to implement major
projects for agriculture that would profit from the most up-to-date U.S. technologies. Nazarbayev also established a
university that established good cooperation with the leading U.S. universities. And this opens up better prospects for
technological cooperation.
Kazakhstan has highly appreciated the support provided for security in Afghanistan in -- the two sides also stressed an
important contribution of Kazakhstan to assistance to Afghanistan.
Our country also hosts 1,000 Afghani students to complete their university studies at a cost of 50 million U.S. dollars. Fiftyfive Afghanis have already started their studies.
And Kazakhstan has now - has joined the security forces, international security forces, in Afghanistan.
I am quite convinced that today's meeting between President Nazarbayev and State Secretary Clinton has given a new
impetus to the entire development of the - in the entire area of our bilateral relations.
Distinguished State Secretary, let me welcome you once again, from the bottom of my heart, in this capital of Astana. You,
being an international personality and a great friend of Kazakhstan, we are very thankful to you for your consistent support
and help that we have noticed in very specific ways during our chairmanship at the OSCE. And I would like to express my
hope that we continue our fruitful and effective cooperation for the good of our peoples and countries. And I give you the
floor. Thank you. (Applause.)
This applause is a sign of your support of our cooperation.
SECRETARY CLINTON: Well, let me begin by expressing what a pleasure it is for me to be here in Astana. And I want to
thank the president, the foreign minister, and the people of Kazakhstan for their hospitality and warm welcome. 1 fondly
remember my first visit here in the 1990s, when Kazakhs were just beginning to chart their new course as an independent
nation. I was proud that the United States was the first country to recognize Kazakhstan, and to welcome you into the
community of nations. And today Kazakhs can be proud of all you have accomplished, and our two nations can be
confident in the strength of our strategic partnership.
The relationship between the United States and Kazakhstan is rooted in mutual respect and mutual interest. Kazakhstan
may be a young nation, but it is home to an ancient and rich culture, which I saw for myself at the museum in Almaty 13
years ago. America is still a relatively young country, yet we deeply respect the hopes of the people of Kazakhstan, and
your aspirations for a better future, and we seek to broaden our partnership and to work with you to continue making
progress toward developing into a stable, secure, democratic, and prosperous nation that is a leader in the region and
beyond.

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We alsotookforward to cooperating with the Kazakh private sector and NGOs that are woriting for free markets, the rule
of law, and a vibrant civil society in which citizens can exercise their full range of human rights. These goals will take
continued hard work. But America believes in Kazakhstan's promise, and we are committed to your future.
Today's OSCE Summit is a testament to both Kazakhstan's valued role in the international community, and the strong ties
between our two countries. As the first former Soviet Republic to lead the OSCE as an independent nation, Kazakhstan
has helped to focus attention on Central Asia's challenges, as well as its many opportunities.
As the foreign minister said, we have discussed security, the economy, the environment, democracy, humanrights,and
tolerance. The United States is committed to the OSCE, and we and our partners are working to empower it to take an
even more effective role, including the encouragement of more transparency and cooperation between and among
militaries, helping resolve long-standing conflicts, and standing up against attacks on civil society and journalists. Our
discussions here in Astana have been constructive and substantive.
Last night, I met with many ofthe participants who took part in the independent conference of non-governmental
organizations that ran parallel with the summit. I was impressed by their effort and energy on crucial challenges, including
protecting fundamental freedoms. They know what we all know, that a thriving civil society is a vital building block of
democracy, and that disparate, diverse voices must be heard and supported.
In the discussion that I had with both the president and the foreign minister, I thanked Kazakhstan for your support ofthe
international mission in Afghanistan, and for all you are doing to help the Afghan people, particulariy the very kind
invitation for 1,000 students to continue their education here, in Kazakhstan. This will enable these young people to
contribute to Afghanistan's development. I also thanked Kazakhstan for the recently concluded air transit agreement that
will help ensure the delivery of critical resources to Afghanistan, and I welcomed Kazakhstan as the newest member of the
International Security Assistance Force, which now includes 49 countries.
We discussed our shared interest in curbing nuclear proliferation, and safeguarding vulnerable nuclear material.
Kazakhstan has long been a leader on this issue, and the United States deeply values our partnership. Along with the
United Kingdom, our nations recently secured more than 10 metric tons of highly-enriched uranium, and 3 metric tons of
weapons-grade plutonium here in Kazakhstan. That is enough material to have made 775 nuclear weapons. And now we
are confident it will never fall into the wrong hands. This is a milestone of our cooperation, and a major step forward in
meeting the goals set at this year's Nuclear Security Summit of securing all nuclear material within four years.
I also shared with the minister and the president the discussions that I have had with civil society leaders. I expressed our
continued interest in Kazakhstan's national human rights action plan, and reforms to electoral, political, and libel laws. I
assured him that America's commitment to working with Kazakhstan and the other nations of Central Asia to advance
democracy and human rights will not end when the summit is over.
On all of these and other fronts, Kazakhstan and the United States are making progress together. The bonds we are
forging between our governments and our peoples are making both of our countries - and, indeed, the regton and the
wortd - more secure and prosperous. And surrounded by the energy and optimism that one feels in this new dynamic city,
I look forward with confidence to a positive future for Kazakhstan and its people.
So again. Minister, let me thank you for your leadership and your hospitality. (Applause.)
FOREIGN MINISTER SAUDABAYEV: (Via translator) Thank you very much. Please ask questions. According to the law
of hospitality, first 1 give the floor to our guests.
MODERATOR: (Via translator) Mr. Burns, please.

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Ot^ESTION:Aquestion for Secretary Clinton.Thank you. On Iran,nowthatthe date has been setfortalks in Genevaaithough it's not clear that the agenda itselfhas been agreed-can you saywhat exactly it is that the United States hopes
and expects to achieved And also, given the outcomeayear ago, when an apparentagreement unraveled rather quickly,
is this really Iran's last chancer Thank you.
SECRETARY CLINTON: Well, Bob, first, we are encouragedthat Iran has agreed to meet in Geneva nextweek with
representatives ofthe P-5^t.This is an opportunity for Iran to come lo the table and discuss the matters that are of
concern to the international community: first and foremost, their nuclear program.
The agreementyou referred to that wasaresult ofthe negotiations oflast ^11, the socalledTehran Research Reactor
agreement,v^ll certainly be discussed, butwould have to be modified in orderto take into accountwhat is known through
the IAEA and other sources ofthe developments in Iran's nuclear program since that agreement was first reached and
then not implemented.
The inten^ational community has been very clear.lran is entitled to the useof civil nuclearpowerforpeacefulpurposes.lt
is not, however,entitledtoanuclearweapons program. And the purpose ofthe negotiations will be to underscore the
concern of the entire international community in Iran's actions and intentions. We hope that Iran will enter into these
negotiations in the spiritthat they are offered.We want to see Iran takeapositionasaresponsible member ofthe
international community.But in order to do that, it must cease violating international obligations, cease any efforts It is
making and has made in the pasttoward achieving nuclearweapons.
So, that is whatwe will be focused on.And the agenda can be more comprehensive than that, but thatis the principal
purpose ofthe meeting in Geneva.
OUESTION:^iatranslator)lhaveaquestion for Mr.Saudabayev.lt is known that Kazakhstan is going to be succeeded
as chairmanship,but will remainamember ofthe troika,of the threesome of the OSCE.Could you please tell us in which
areas are you going to work next year^
FOREIGN MINISTER SAUDABAYEV: (Via translator) Kazakhstan is going to continue being active asamember ofthe
OSCE, and to contribute towards the search for solutions of problems, and the implementation ofthe decisions to be taken
atthis summit. For one yearwe will remainatroikamember.And the processes that we hope to have been given an
impetus will becontinuedfurtherby our successors, and we will continue towort^togetherinclosecontactwith them.
And as to the internal life of our country, the processes have become (inaudible) as part of our further development of our
country and the economic and social area, as well as the democratic development. As part of the implementation of the
national program'The WaytoEurope,''thisisalsogoing to be continued
t^ODERATOR: (Via translator) Mr.AndyOuinn is an American press member.
OUESTION: Madam Secretary,this trip has given youyourfirst chance to meetpersonally with foreign leaders following
the Wikileaks release over the weekend lam wondering ifyou could tell us how much ofatopic it's been in your
discussions, what sort of responses you may have heard.And has anyone expressed anyworry about U.S.
trustworthiness, going forwards
And, forthe minister,your government saw some embarrassing details also come to light in the Wikileaks release.What is
your reaction to this^ And do you feelthat this type of release will change theway the U.S. is perceived asadiplomatic
partner, going forwards

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SECRETARY CLINTON: Well, Andy,lhave had the opportunity to meetwith many leaders here atthe summit in Astana.
We have talked about many important issues, and the work thatwe are doing togetherto solve global problems.lhave
certainly raised the issue ofthe leaks in ordertoassure our colleagues that itwili not in anyway interfere with American
diplomacy or our commitmentto continuing importantwori^ that is ongoing.Ihave not had any concerns expressed at^ut
whether any nation will not continue towori^ with and discuss matters ofimportance to us both, going forward.
Aslhavesaid,lam proud ofthe wori^thatAmerican diplomats do, and the role thatAmerica plays in the world.Both
President Obama andlare committed toarobust and comprehensive agenda of engagement It's one ofthe reasons that
lam here in Astana at the OSCE Summit. Andlam confident thatthewori^ that our diplomats do every single dayw^l go
forward.Andlanticlpate that there will bealot of questions that people have every right and reason to ask, and we stand
ready to discuss them at anytime with our counterparts around the worid.
FOREIGN MINISTER SAUDABAYEV: (Via translator)lbelievethatwhathashappenedispartofanormal cost, era
normal price, that one has occasionallyto pay while we lead ourwork.That is whywe will be able to live through this
incident, as,we have through others And, as head ofthe Ministry ofForeign Affairs in my country,now declare that this
will have no effectfor our strategic partnership between the United States and KazakhstanThank you.
MODERATOR: (Via translator) One question from the Kazakhstan members ofthe press.
QUESTION: (Via translator)lhaveaquestion to both the Secretary of State and Mr.Saudabayev.lt has beenmentioned
that right after the reeling between the two presidents, Nazarbayev and Obama (inaudible).lstillwould like to knowwhat
is going to happen next, apartfrom the operation on the Nazarbayev's university and the plans for agricultural cooperation.
Are there any other agreements or projects to be implemented between ourtwocountries7 And what could prevent them
from happening'^ A n y - i s there anything subjective that-or personal--that might affect those plans7
And one morequestiontoStateSecretaryClinton.lt is known that some amendments to the act on cyberspace have
been adopted in the United States that would entitle the U.S. President to regulate the exchange of information in the
Internet.Iwould like to know more about this concerning the amendments to the act on cyber space.Thank you.
FOREIGN MINISTER SAUDABAYEV: (Viatranslato^) Atthis briefing, we don't have theopportunityto discuss prospects
for general cooperation and specific areas of cooperation in our bilateral relations, because this isahuge area that has
several dimensions.lean only take note that we have,once again,reconfirmed that we both haveavery optimistic
outlook,as far as our bilateral relations are concerned,and we havealoi of potential in this area.Thank you.
SECRETARY CLINTON: Andlwould add we discuss not only theimportance of our strategic partnership between our
two countries, but how the United States and Kazakhstan can work together in the region and beyond. We value
Kazakhstan's role and influence in the region. Itwas critical,aftertheeventsoflast spring affecting Kyrgyzstan,to have
Kazakhstan playaleadershiproleThe United States worked closely with Kazakhstan.The Minister andltalked several
tin^sat^ut what Kazakhstan was doing to assist Kyrgyzstan, and we are continuing to work together and supporting
Kazakhstan's influential position in trying to help stabilizeKyrgyzstan.
We discussed further what additional regional steps might be considered to better integrate the Central Asian nations. I
believe that this is an important area of the world.Kazakhstan has done well,economically,and with its development. Now
we need to see howto work together to assistthe other nations in the region to develop more successfully and inclusively.
With regard to cyber security and cyber space, the United States is, like many nations, addressing the opportunities and
the challenges and the threats that are posed in cyber space. We want the Internet to beavehicle forthe free exchange of
information,yetwe are well aware ofthedangers that can be posed to the misuse ofthe Internet to all kinds ofinstitutions

http://www.state.gov/secretary/rm/2010/12/152212.htm

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Remarks With Kazakh Foreign Minister Saudabayev After Their Meeting

Page 6 of 6

and networi^s. And so this is not onlyamatter of concern forthe United States^ we think this deserves attention at the
highest international levels, and that is beginning to occur.
MODERATOR: (Via translator) Thank you very much. That will be it. Wedont have any time left. Thank you.

PRN: 2010/T36-5

Back to Top
The Office of Website Management. Bureau of Public Affairs, manages this site as a portalforinformation from the U.S. State Department.
External links to other Internet sites stiould not be construed as an endorsement of the views or privacy policies contained therein.

http://www.state.gov/secretary/rm/2010/12/152212.htm

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Clinton: WikiLeaks won't hurt U.S. diplomacy - USATODAY.com

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Clinton: WikiLeaks won't hurt U.S. diplomacy
Updnkd t2n/20io 10:10 AU I Commsnts

j) Enlarge

By Geert Vancfon Wfjogaeit. AP

Secoilary of Stale Hillary Rodham CInton. center.
i t x i i a doovneril as :n# sMs n«xt to Oermrn
cnsnceikj: Aitgela Merttel Mtlte siitn of the OSCE

icommend

4

E-mdl | P I M | p^gg^

ASTANA. Kazakhstan (AP) — The leak of
thousands of sensitive U.S. embassy cables
*
"
will not hurt American dipktmscy, Secretary of
""
State Hillary Rodham Clinlon declared
A4d to Mixx
Wadnesilay at a securtly summit
Facct3ook
Clinton said she has discussed the
revelatkxis published on the VMdLeaks
website with her coleagues at the summit In
Asians, the capital of Kazakhstan. The event
is the tlrsl maior international meetng of
leaders and top diplomats since the memos
began appearing on the website and in
iiyYatwo
intamaUonal publkallons Stisweek.
iGoogie

The secret memos published by VWkiLeaks
more
contain fiank details on several leaders
Kszahhslsn on WedntsOay.
attending Ihe Organization fof Secunty and Cooperation n
Europe meetimy. One note alleged^ written by a U.S. dipkmat In
Kazakhstan details scenes of hard-drinking hedonism by several senior Kazakh ministers. The same report
dasctibes Kazakh President Nursultan NezatSayev as horse-obsessed and given to faking refuge from the oftenfrigid capital al a holMay home in the United Anb Emirates.

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other prospective conference delagales described less than flatteringly in Ihe leaked cables inckufa Italian Prime
Minister Silvio Berlusconi and Russian President Dmllry Madvadev.

PLAY NOW'.f

1 have certainly raised the Issue of Ihe leaks in order to assure our colleagues Ihat It wtl not in any way interfere
with Anwrican diplomacy or our commitmant to continuing important work that is ongoing," CSnton said. "I have not
any haa any concerns expressed about whether any nation wil not continue to work with and discuss matters of
importance to us both going forward."
Several officials at the summit echoed her comments.
Bniish Deputy Prime Minister Nick Clegg. wtio met Wednesday with Clinton, released a statement saying the
"recent VWkWeaks disclosures would not affect our uniquely strong relationship,"
Kazakh Foreign Minister Kanat Saudabayev also said "this w3l have no baanng on our strategic relationship."
The Obama admlnlstratkm has harshly cutidzod the leaking of the cables, saying the detais in Ihem coukJ put
Ives at risk.
1 anticipate that there will be a kit of questions that people have every right and reason lo ask, and we stand ready
to discuss them at any time wilh ou/ counterparts araund the world,' Clinton added.
On ttw sidellnaB of the summit, Clinton and her Belarusslan countaipart, Sergei Martynov, announced that the
former Soviet republic of Belams will glue up Its stockpile of malcrtal used to make nuclear weapons by 2012.

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That's a signincani step fbnvard in efforts aimed at reducing Ihe risk of nuclear materials falling into the hands ol
tenorists, and follows similar commitments made by other former Soviet republics, Induding Kazakhstan.
Washington v^ill provide technical and financial help to enable Belams to dispose of its highly enriched uranium
CPnton said the Obama administration is encouraged tfiat Iran has agreed to return to Geneva for a new round of
international talks on its disputed nuclear program. However, a urankrtwxchanga agreement that was announced
MiovXng talks with Iran in October 2009 — bul wh«h later unraveled — would have to be modilied to lake into
account the fact that Iran htas ^nce pnxluoed more enriched uranium, she said.
The OSCE was bom in the 1970s to nurture rapprochement between Cold War enemkss. But the organizaUon has
in recent years struggled to define a dear purpose -~ an anxiety reflected in the speeches of many leadara at the
Astana summit Falure lo achieve any breakthrough In Europe's varkius temtorial stalemates, from Moldova's
separatist Trans-Dnieater regkin to the perennial tension between Armenia and Azer1>3ijar\ over ttie contested
Nagorno-Karabakh region, has served as an embarrassing reminder of the OSCE's weakiKss to effect signiTicanl
change.
In a thinly veiled broadside at Russia, CInton chided effotts to obstnict the placomant of an OSCE mlsston in
Georgia, whose own tem'loital Integdty has been undettnlned by Moscow's diplomatic and financial support (or the
breakavray regions of Abkhazia and South Ossetia.
"It is regrettable that a partidpallng state has proposed lo host a misskxi, and the OSCE has not been allowed to
respond," Clinton said.

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

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Clinton: WikiLeaks won't hurt U.S. diplomacy - USATODAY.com

Page 2 of 3

Russia fought a brief but intense war with Georgia over South Ossefa In 2008.
Copyright 2010 The Associated Press. AH lights mserved. This matenal may not be published, biDadast, nwilttan
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New. Most recommended!

DomalnhlWON'T HURT US Diplomacy??? REALLY?.
MAY BE, But 1 am sure Israeli-Kazakh mining tycoon Alexander Machkevich. worth S3.3 blllton want
to kick the US Diplomat s @ss for back stubbing him after A dinner Invitations: (read on..)
In a somewhat catty missive, the U.S. diplomat reveals ha was unimpressed with Machkevich's
parties:
"II is not clear what Mashkevich is spending his blllkins on, but It is certain^ 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 meal and noodles) and pkiv 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 Ihe guests. The Astana rasklence has wooden plaques cn
Ihe doors that would fit in nicely in a Wyoming hunting k^dge bul are somewhat out of touch wilh Ihe
upscale 'Eum-remonl' that Is so popular among the Kazakhstani elite." (I got this passage of the leak
from the Foibas.com website, just in case you are wondering)
SO think this guy wll invite anolhar US dipkxnal to his Parties or even have TRUST in the US
Diplomacy?
Recommend

j Repon Abuse

Orlandojoa (1U friands, tend message) vmte: iliiliO'iO 2:?.5 There Is no US diplomacy. The leaks demonstrate our entire program is based or back door
discussions with thugs along with bribes thrown in al every lum. We go around the work! with suil
cases of money buying up whateverwe need.
Recommend

11 Report Abuse

meleeWI (127 IMends, send message) wroui: 12/2/2010 2:09:57 PM
User Image
Greed Sin (0 friends, send message) wrote; Id ago
Last time, a low level soldier at DoD leaked. This time. 1 think, a high level DoO official leaked.

))))))))))))))>)))>)))))))))))))))))))))))))»)))»)»)»)»))))))))))»)))>))»))))»)))))))))))>)»)))))))))»))»))))))»)»))
1 agree. V\Aiat i t more Hillary is trying to steer pubRc opinion with her out to lunch remarks here.
Ttiose emails and memos appeared to have been written by arrogant, self bloating. thoughHass

http://www.usatoday.com/news/world/2010-12-0I-clinton-wikileaks_N.htm

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Clinton: WikiLeaks cables show diplomacy at work - CNN

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Clinton: WikiLeaks cables show diplomacy
at work

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December04, 2010 | Bythe CNN Mre Staff

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88 eeople reconvnend this. Be the
fust of your friends.
The (»nfidentlal U.S. embassy cables posted online
by the website WikiLeaks simply sliow "diplomats
doing the work of diplomacy," U.S. SeCTetary of State
(Hilary Clinton said Saturday.
Clinton said she was not making light of Ihe leaked
documents, which reveal secret communications
from U.S. diplomats around the world and have

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

November 30,2010

caused embarrassment for the United States and
others.
"Everybody is concerned," she told reporters aboartJ



-

her plane as it departed Bahrain, where she spoke at
a conference, "Everybody has a right to have us talk to them, and have any questions that they have
ansvirered, but at the end of the day - as a couple of analysts and writers are now writing - what you
see are diplomats doing the work of diplomacy."
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The secretary made the comments off-camera but on Ihe record.
Clinton said she has been working hard to re-establish trust and relationships that may have been
harmed by the leaks. Many countries had questions that she had to answer, a i t d ^ e h a s had to
reassure them, but she said many also realize U.S. outreach and diplomacy will continue.
"But I haven't seen everybody In the vrarld, 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 weeks Just to make sure as things become public, if they raise concerns, 1 will be
prepared to reach out and talk to my counterparts or heads of state of governHnenl"
Asked whether President Obama has had to call any heads of state, Clinton said she wasn't sure,
though he had made recommendations for calls and wouk) 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. "The work of dipbmacy is on display, and you know, it w a s not our intenfion for
it to be released this way - usually It takes years betbre such matters are. But I think there's a lot to be
saw about what it shows about the foreign policy of the United States."
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http://articles.cnn.corn/2010-12-04/politics/wikUeaks.clinton_l_wikUeaks-d^

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Clinton: WikiLeaks cables show diplomacy at work - CNN

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http://articles.cmi.com/2010--12-04/politics/wikileaks.clinton_l_wikileaks-diploniacy

7/30/2012

S
iS

25892

WikiLeaks Archive - ClintonPraises Diplomats' Work - NYTimes.com

Sljc JCeui JJork Eimfa Reprints
This copy is for your personal, noncommercial use only. You can order presentation-ready copies for distribution.to
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Page 1 of 3


#

vdNKtni

^,

CANNES %

December 4,2010

From WikiLemons, Clinton Tries to
Make Lemonade
By MARK LANDLER

MANAMA, Bahrain — When American diplomats get together these days, there is lots of
dark talk about the fallout from the sensational disclosure of secret diplomatic cables. Will
angry foreign governments kick out ambassadors? Will spooked locals stop talking to their
embassy contacts?
Behind all the public hand-wringing, however, there is another, more muted reaction: pride.
The WikiLeaks affair has turned an unaccustomed spotlight on the diplomatic corps —
pinstriped authors who pour their hearts and minds into cables, which are filed to the State
Department and, until now, were often barely read by desk officers, let alone senior
diplomats.
Whatever damage the leaks may do, and nobody doubts it could be substantial, they have
showcased the many roles of the Foreign Service officer in the field: part intelligence analyst,
part schmoozer, part spy — and to judge by these often artful cables, part foreign
correspondent.
The pride of authorship is shared by their boss, Secretary of State Hillary Rodham Clinton,
who found a silver lining in the disclosures, even after she spent last week trying to smooth
the feathers of foreign leaders described in the cables as feckless, profligate, vain, corrupt or
worse.
"What you see are diplomats doing the work of diplomacy: reporting and analyzing and
providing information, solving problems, worrying about big, complex challenges," Mrs.
Clinton said to reporters at the end of a four-country trip to Central Asia and the Persian
Gulf that wound up being a contrition tour.
V
"In a way," she said, "it should be reassuring, despite the occasional tidbit that is pulledl o u t ^
and unfortunately blown up."

http://www.nytimes.com/2010/12/05/world/05diplo.html?_r= 1 &pagewanted=print

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WikiLeaks Archive - Clintoiffraises Diplomats' Work - NYTimes.com

Page 2 of 3

Not all the tidbits reflect well on the diplomats, of course. Memos from the United States
Embassy in Georgia, for example, showed that it relied so heavily on the Georgian
government for intelligence that it badly misjudged the country's actions in its war with
Russia in 2008.
But the overall quality ofthe cables — their detail, analysis, and in some cases, laugh-outloud humor — has won fans in unlikely places. "It's very entertaining reading," said Aigul
Solovyeva, a member of Parliament in Kazakhstan who met Mrs. Clinton there this week.
Richard E. Hoagland, the ambassador to Kazakhstan, thinks good cable-writing is so
essential that he has written a guide for junior diplomats, "Ambassador's Cable Drafting
Tips." Many of the tips would be familiar to any cub reporter trying to get an editor to bite on
a story.
"The trick is to catch readers' attention," he advises. "The first three to five words are all they
will see in their electronic queue."
His specific recommendations? Avoidflabbywriting, citing as a typically egregious example
any memo that starts: " "The ambassador used the opportunity of the meeting to raise the
issue of..."
And work on storytelling: "Despite what some in Washington will tell you, there is nothing at
all wrong with colorftil writing, as long as it communicates something." But he adds a caveat:
"Cute writing is never acceptable — cute is for toddlers, not for professional diplomats."
Mr. Hoagland, who accompanied Mrs. Clinton to meetings this week, declined to discuss the
substance of the leaked cables. But he was happy to discuss style. As a general rule, he said
he instructs staff members to think like journalists. "Not everything we churn out is great
writing," he said, "but we try to keep up the standards."
The embassy in Kazakhstan met many of Mr. Hoagland's standards for cable-writing, even
before he became ambassador there. Cables about Kazakhstan's high-living leaders are
written in a satirical tone worthy of Borat, the fictional (and wild) Kazakh played in the
movie by Sacha Baron Cohen.
One described Kazakhstan's defense minister turning up drunk for a meeting with an
American official, "slouching back in his chair and slurring all kinds of Russian participles."
He explained that he had just been at a cadet graduation reception, "toasting Kazakhstan's
newly-commissioned officers."

http://www.nytimes.com/2010/12/05/world/05dip!o.html?_r= 1 &pagewanted-print

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25894

^^^^
WikiLeaks Archive-Clinto^raises
Diplomats'Work-NYTimes.com^

Page3of3

The memo concluded: "Who was toastedmore^the defense minister orthecadets^isa
matter ofpure speculation."
A2^o^ cable from the embassyinMoscowshowed thatthe staffthere was also alertto the
literary quality oftheeventson which theyreported, and the valueoftelling details. The
memo oftered an account ofasocietyweddingin Dagestan in Russia'sCaucasus, where
gueststhrew ^^00 bills at child dancers and tookalcoholsoddenwater-scooterjaunts on the
Caspian Sea. Butit also showed howthe wedding wasa"microcosm ofthe social and
political relations ofthe North Caucasus."
For Mrs. Clinton, the pride in the diplomats'workisasmallcomper^ationforadifficult
week in which she has discussed the WikiLeaks case with more than two dozen foreign
leaders, workingto soothe bruised egos and explain howthe security breach happened.
The job of damage control has fallen mainlyto her. President Gbama has not called any
foreign leaders aboutthe disclosures. Defense Secretary Robert M.Gates, meanwhile, has
been reserved even though the cables were believed to be purloined fromaDepartment of
Defense computersystem by an armyprivate, Bradley Manning, who is nowinamilitary
jail.
Mrs. Clinton'sreaction to shoulderingthe burden hasbeen every bit as artful as the cables
that hav^e landed her in so much trouble.
"ItwasaDoD system, andaDoDobviouslymilitaryintelguy,"shesaid."Butwe're part of
one government, and we're part of one country,and we have to worktogether, and that's
whatwe're doing."

http://www.nytimes.com/2010/12/05/world/05diplo.html?_r=I &pagewanted=print

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Top News, Latest headlines, world News & U.S News - Upi.com

Page 1 of 2

UPl NewsTrack TopNews
Published: Dec. 4, 2010 at 12:00 PM
Clinton on leaked documents: So what?
MANAMA, Bahrain, Dec. 4 (UPl) -- The online publication of hundreds of thousands of U.S. secret documents is
an example of diplomacy in action, Secretary of State Hillary Clinton said Saturday.
Clinton made the remarks aboard an aircraft leaving Bahrain about Wikileaks' recent release of some 250,000
diplomatic exchanges from U.S. officials around the world.
"What you see are diplomats doing the work of diplomacy," Clinton said.
Clinton fold reporters the WikiLeaks Web site's publications raised concerns, but the U.S. government had
nothing to apologize for to other governments, CNN said.
"The work of diplomacy is on display ... I think there's a lot to be said about what it shows about the foreign policy
ofthe United States.
"I'll have sohie outreach to continue doing over the next weeks just to make sure as things become public, if they
raise concerns, I will be prepared to reach out and talk to my counterparts or heads of state of government,"
WikiLeaks has published three sets of classified U.S. documents since July pertaining to the wars in Iraq and
Afghanistan and most recently, overall international relations. Wednesday, a White House news release said the
govemment was investigating the sources of the leaks and the legality of their publishing.

South Korea swears in new defense minister
SEOUL, Dec. 4 (UPl) - South Korea on Saturday named Kim Kwan-jin as its new defense minister 11 days after
a border skirmish with North Korea left four dead, including two marines.
Kim vowed to respond swiftly and forcefully to any antagonism from North Korea, the Yonhap news agency
reported. His predecessor, Kim Tae-young had been criticized for a slow reaction to the North Korean shelling at
Yeonpyeong Nov. 23, which left two South Korean marines and two civilians dead.
Technically, North and South Korea are still at war. Although an armistice has been signed, there has been no
peace treaty signed.between the two sides since the Korean War of 1950-53, Yonhap said.
In remarks made at his inauguration, the new defense minister said, 'We do not want war, but we must never be
afraid of it."
"We're in the worst crisis since the Korean War," he said. "Our enemies will keep trying to take advantage of our
weaknesses and will plot new provocations."

Measure funds U.S. govemment for 2 weeks
WASHINGTON, Dec. 4 (UPl) - President Barack Obama signed a continuing resolution Saturday that keeps the
federal government running for another two weeks, the White House announced.

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Top News, Latest headlines^orld News & U.S News - Upi.com

Page 2 of 2

House Joint Resolution 101 funds Fiscal Year 2011 appropriations through Dec. 18, giving the lame-duck
Congress time to fund operations through next September.

2 killed in Moscow plane crash
MOSCOW, Dec. 4 (UPl) ~ Rescue crews report at least two people were killed when a Dagestan /sjrlines jet went
off the runway at Moscow's Domodedovo airport Saturday.
Russia's RIA Novosti news agency said the Tu-154 airliner with 155 people aboard was making an emergency
landing after experiencing complete engine failure and skidded off the runway.
The Emergencies Ministry said the flight originated at a different Moscow airport and was en route to
Makhachakala in southern Russia when all three of its engines quit.
The cause of the incident was under investigation. There was no immediate word on other injuries.

Drifting ship regains power off Alaska
ANCHORAGE, Alaska, Dec. 4 (UPl) - A stricken cargo ship with 20 aboard regained limited engine power after
being adrift in the stormy waters off Alaska, the U.S. Coast Guard said Saturday.
The Golden Seas was limping away from land and a heavy duty salvage tug was expected to arrive on scene
later Saturday to take the 738-foot ship under tow.
Alaska officials told the Anchorage Daily News the crew regained control of the Golden Seas just in lime. They
feared the ship, which is carrying a cargo of fuel oil and canola seeds, would have run aground on Atka Island by
Saturday morning if power had not been restored.
The Coast Guard said in a written statement Friday night that even the weather of Adak had moderated with 29foot seats settling down to 20 feet.
The Coast Guard cutter Alex Haley was en route to the scene and two helicopters were standing by in the area to
offer any rescue assistance, if needed.
© 2010 United Press International, Inc. All Rights Reserved.

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ATTACHMENT

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Biden on START, WikiLeaKs - msnbc - Andrea Mitchell Reports - NBCNews.com

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msnbc - Andrea Mitchell Reports - NBCNe
J u m p 10 wd«Li

Ml
WmM^-v^ri
Biden

GOP: 'ij&fs do the nation's

Q T A P T Wnl^i'T ppiV«5

B^„+^^c*-^ M M , '^RAat^d^*'^-*- > ' » ^ f v i i j C d i V b
The vice president offered his insight on top political issues

lay
jAndrea Mitchell
Host, Af^drea Mitehall Reporte
MSNBC
TRANSCRIPT

Vice President Joe Biden sat down with NBC News Chief Foreign Aftairs Correspondent Andrea Mitchell to discuss the current state ofthe war in
Afghanistan, debates over the START Tieaty, the tax compromise and Wikileaks. Vice President Biden also offered his heartfelt thoughts on the
loss of Richard Holbrooke,
Scarf the excerpts below:
Biden on the START Treaty and Tax Compromise
VICE PRESIDENT JOE BIDEN: Well, 1 say let's do the nation's business. Sixty-sex-eii senators voted to move forward on this, including John
McCain and Uiidsey Graham and the leading voices in the Republican Party.
NBC's ANDREA MITCHELL; But they say they haven't had enough time to stmly it.
BIDEN: Well, they haven't said that MITCHELL: No, I BIDEN: They haven't said that.
MITCHELL: — you know. Senator Kyi and the opponents —
BIDEN: Senator Kyi is opposed to the treaty. He is flat opposed to the treaty. So is Senator DcMint opposed to the treaty. Do not let - do not
stand in the way of the nation's best interests. Let the Senate vote. Ovcnvhelming, the American people support the START Tl-eaty.
Overwhelmingly, the United Slates Senate supports the START Treaty. It's clearly in our national interests. Every former national security adviser,
secretaiy of Defense, the secretary of State on the Republican Party from George Shultz to Colin Powell thinlcs it's essential we pass this treat}', Get
out of the way. There's too miicli at stake for America's national seciuity. And don't tell me about Christinas. 1 understand Christmas. I have been
9 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: Docs that go for the tax cut, as well?
BIDEN: — thatwe just acted on.
MITCHELL: But you had a rough session with House Democrats.
BIDEN: Sure, I did.
MITCHELL: Thty say you sold them out, you sat down with 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. I was in an interview
with another network, I will not mention, not long ago. And the}' said the Senate said you sold them out and it will never pass. I said more than 8o
will vote for it. Eighty senators just voted for that deal I allegedly sold them out on.
MITCHELL: Eighty-one.
BIDEN; Eight}-.
MITCHELL: Eighty-one.

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BIDEN: Well, more than 80. Yes, 80 — 81. The House will, as well. Look, people feel very strongly and I don't blame them. But we cannot afford
to go into next year with eveiyone'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 yon negotiate grows the economy next year. Eveiy major econometric
model points out the deal that I was asked to negotiate will increase the growth of the econom>' from 2.3 to 2.5 to 3.7104, 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?
Eveiy one of the tax breaks they had, from college tuition to child care tax credit, which the Republicans opposed, is part of that deal Eveiy single
tax break for middle class Americans has been pteseived.
BIDEN: Thirdly, it's for two years. We also hare 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 jjcrson out theie, additional.
MITCHELL: But the House Democrats, the liberals, they are the people that brought )'o« into power.
BIDEN: Sure the) are.
MITCHELL; What are yon now saying to them?
BIDEN: Well, 111 tell you, I went in and spoke to them two-and-a-half hours. I'm a creature ofthe Congress. When I walked In, t got a standing
ovation. When I walked out, 1 got aa ovation. All this talk about how there is this ovci-whelming 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 me 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 miiiority who spoke said that. There
were a number of people who stood up and said, this is important. Thank yon for the deal you negotiated, including progicssri'es 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 are in a position where, as the president, wc don't get to negotiate this. We set out two parameter's. We said we wanted to freeze
discrctionaiy spending. It is frozen in this omnibus bill.
TTO, wc 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 wth international terrorist organizations. We got both of those things. Do we like some of these, quote, earmarks in
there?
No, we don't like them. But the question is, as wc go to throw out, j-ou know, the baby with the bath water here?
If, in (act, this omnibus bill negotiated by Republicans and Democrats — not b>' us —Republicans and Democrats — passes, the president will
support it.
Biden on his relationship with Obama and witli members of Congress
MITCHELL: And you arc the point man on all of this. You're here at tlie United Nations. You're negotiating with Mitch McConnell. You're
eve:ywhere. Are you basicallj' the de facto cliief 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 1 want to have an input.
And so the president uses me where I have some skill set. I'm going to say something outrageous. They kid me 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 gi-oat relationships wilh Republicans as well as Dem(X:rats. 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 liave a significant background in foreign policy and national security issues. So it's
logical tliat I'd come up here. The president asked me, as you know, because yon were one of the firat people to Inten iew me when he turned to me
and said, Joe, you do Iraq. And the Secixstary of Defense and the Secretarj' of State have cooperated with me. They've followed it with me.

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I mean, so it was just logical things tliat I happened to have some experience, in some cases significant experience. And tiiey just happened to be in
the two areas that are being negotiatedrightnow.
On WikiLeaks
BIDEN; I came iu, almost all of it was embraces, I mean it wasn't just shaking hands. 1 know - I know these guj-s. 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-assiug. I mean, you know, to say that, you know, for you to do a cable as au 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 ne\'er s.iid 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 aril
aware ofthat 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 ai-o not dealing fairly with us.
On Iraq
MITCHELL: Iraq — we still have 48,000 troops. Yonr own son was there. Now another Christmas is coming 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 (his place better than most. Today, the international community said, Iraq, you're back in
tlie family of nations. We think you have a govemment. Wc think you are mo™ig in therightdirection. We think you're protecting
human rights. And we think you've going to h i stable.
And so %vc passed through resolutions here in the Sccuritj' Council — I had the pleasure of pi^esidiog over today — which essentially wiped out the
restrictions and the claims against Iraq that were imposed after Saddam Hussein went into Kuwait.
Aud so this is areaffirmationthat 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 tliink they have turned the comer, they have a democracy and they're moving forward.
Biden on Holbrooke
MITCHELL: And, finally, a teiiible, terrible loss for all of us, for the country,
BIDEN; Richard Holbrooke.
MITCHELL: Your thoughts o n BIDEN; I have beenMITCHELL: - having this Afghanistan BIDEN: - friends MITCHELL: - review without him.
BIDEN;— with Richard, I was a 29-ycar-old senator-elect. He was a young, 31-ycar-old Foreign Sen ice officer in Vietnam, I ran opposed to the
war again-st Vietnam — the — excuse me, the war in Vietnam. We became friends and acquaintances way back then.
He wa.s one of the fewfiguresin American foreign pollcj- wlio was literally lai-ger than life. And I thought — I wish Kati could have heard when we
— when I conducted the Security Council meeting. Almost ev ery single member spoke of him before they made their statements about
\mq. And a number of them spoke fi'om pcreonal terms and it was his heart — from their hearts.
No one, as my grandfether would say, it's a good thing about American democracy, is everyone is expenda!)le, in terms of the — the functioning of
this great coimtiy. 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 oiitsized personality, an outsizcd talent. And hccontribntcd moiie to the peace and security of this country as much as anyone in the
last 30 years.
MITCHELL; And we all know there were moments with him. He could be difficult.

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:
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Biden on START, WikiLeaKS - msnbc - Andrea Mitchell
Reports - NBC^ews.com

msnbc - Andrea Mitchell Reports - NBCNe

Page 4 of 4

BIDEN: He sure could. As a matter of I was with Kati and — at the hospital the day
before he died, liecaiise 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 herememberthis. And we were
talking.
And we started joking. And I said, you know, he can be a real pain in the you know what. And she laughed Hkc hell. And I was kidding her. I said,
thank god you were there for the last 17 years to moderate him aud 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 of a Kissingerian mind. He saw things gbbally,
strategically, like few other men and women I've dealt with. And be could be very, very tough. But he was my friend.
MITCHELL: Do you have a Christmas message, a holiday message?
BIDEN: Yes, As my gi and pop would say, keep the faith. Keep the faith. This country is so strong. II is so big. It is noresilient.Nothing at all can
damage its ability to move forward.
A lot of people arc hurting. Iremembera Christmastime when my dad lost bis job and be told us wc 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, look 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 tbe 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 who have someone in harm's way now, keep
them in your prayers. They'll be home next year.
MITCHELL: Thank you SO veiy much.
BIDEN: Thank you.
(g) ioii' mpi6c.com

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7/30/2012



25903

ESPIONAGE ACT AND THE LEGAL AND
CONSTITUTIONAL ISSUES RAISED BY WIKILEAKS

HEARING
BEFORE THE

COMMITTEE ON THE .TTTDICUEY
HOUSE OF REPRESENTATIVES
ONE H U N D R E D E L E V E N T H CONGRESS
SECOND SESSION

DECEMBER 16, 2010

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

Available via the 'World Wide Web: httpa'/judiciaty.house.gov
U.S. GOVERNMENT PRINTING OFFICE
W A S H t N G T O N : 2011
Far sale by t h t dtiptrintenilent of Docamcnt&, U S. Government Printing Qi&ca
Intainst: boolutoro.-po.fov Phone: tcU free (866) 512-taoO; DC art* (20ii( 5t3-iSO0
Fnx: (202) 512-2154 Mail: Stop IDCC, Washington, OC S{M03-OOD1

25904

COMMITTEE ON THE -JUDICIARY
JOHN COrfYBfiS, JR., Mjchigao, Chairman
HOWARD L. BEMklAN, California
L.4M.4K SMITH, Taias
KICK BOUCHER, Virginia
F. JA&(ES SENSENBRENNER, J«.,
JEHROLU MAULER, New York
WiBconsin
ROBERT C TBOBBY" SCOTT, Virginia
HOWARD COBLE, North Carolina
MELVTN L. W.4TT, North Carolina
ELTON GALLEOLY, Calitomla
20E LOFGREN, CaJifomia
BOB QOODLATTE, Virginia
SHEILA JACKSON LEE, Teiaa
D.1NIEL E. LUNG REN, California
D.'^RKELL g ISSA, California
MAXDfE W.^TERS. California
J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, MaisachuwlU
STEVE KING, Iowa
STEVE COHEN, Tenneaaec
TRENT FRANKS, Arizona
HENRY C. "HANK" JOHNSON, JK.,
LOUIS GOHMERT, Tolas
Georgia
JIM JORDAN. Ohio
PEDRO PIERLUISI, Puerto Rico
TED POE, Texas
MIKE QUIGLEY, Ulinois
JASON CHAFFETZ, Utah
JUDY CHU, California
TED DEUTCH, Florida
TOM ROONEY. Florida
LUIS V. GUTIERREZ, Illinois
GREGG HARPER, Missiasippi
T . t m i Y BALDWIN. Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, Nei» York
ADAM B. SCHIFF, California
U N D A T S.4NCHE2, California
DANIEL MAFPEl, Now York
JARKU POLIS, Colorado
PBHKY APEUkim, Majority Staff Director and Chief Counec)
SEAN MCLWOHLIN. Sfirujtiiy ChUf of Staff aiid Cvyi^rttl Cimnml

III)

25905

CONTENTS
DECEMBER 16, 2010
Vugf

OPENING STATEMENTS
The Honorable John Conyers, Jr., a Representative in Congreas from the
State of Michigan, and Chairman, Committfie on the Judiciaiy
The Honorable Louie Gohmert, a Representative in Congress from the State
of Texas, and Member, CommitteB on the Judiciary
The Honorable William D. Delahunt, a Representative in CongTess from
the StaterarMassachusetts, and Member, Committee on the Judiciary
The Honorable Howard Coble a Representative i n Congrees 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 iii 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, CMelveny & Myers, LLP
Oral Testimony
Prepared Statement
Mr. CWiriel 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. Tnomas S. Blanton, Director, National Security Archive, George Washington University
Oral Testimony
Prepared Statement
_
Mr. Ralph Nader, Legal Advocate and Author
Oral Testimony

fffl)

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

25906

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, Rayburn House Office Building, the Honorable John Conyers,
Jr. {Chairman of the Committee) presiding.
Pi-esent: Representatives Conyers, Scott, Jackson Lee, Delahunt,
Johnson, Quigley, Gutierrez, SchifT, Sensenbrenner, Coble,
Gallegiy, Goodlatte, King, Frank, Gohmert, Poe, and Harper.
Staff Present: (Majority) Peny Apelbaum, Staff Director and
Chief Counsel; Elliot Mincberg, Counsel; Sam Sokol, Counsel; Joe
Graupensbei^er, Counsel; Nafees Syed, Staff Assistant; (MinorifriO

"^"^

""""'^

^^''^

Mr. CONYERS. Good morning. The hearing on the Espionage case
and the legal and constitutional issues raised by WikiLeaks before
the Conunittee 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 ofthe fundamental principles of our democracy. That is, that ifthere 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 initial matter, there is no doubt that WikiLeaks is in an
unpopular position right now. Many feel their publication was offensive. But nnpopularity is not a crime, and publishing offensive
infonnation isnt either. And the repeated calls from Members of
Congress, the government, journalists, and other experts crying out
fm- 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)

25907

t o h e a r t h e i b r m e r G f ^ c e o f Legal Counsel, JackGoldsmith, who
served under GeorgeW.Bus^ caution us only last week. And he
said,I8ndmyselfagreeingwi^th those who think Assange isbeing
unduly vililied.Icertainly do not support o r l i k e h i s disclosure of
secrets that harm ^.S. national security or foreign policy interests
But as allthehandwringingover the 1917^spionage Act shows,
i t is not obvious what law he l^as violated.
Gur country was founded or^ the belief that speech is sacrosanct,
and thatthe answer to bad speech is not censorship or prosecution,
but more speech And so whatever one thinks about this controversy, it is clear that prosecuting WikiLeaks ^ould raise the
most ^ndamentalc^uestionsai^out^eedomof speech about who is
ajonmalist and about what tlhe public can know about the actions
of their own govemment.
Indeed whilethere^s agreeii^entthat sometimes secrecy isnecessary, the real problem tod^y is not too little secrecy, but too
much secrecy, l^call the P^tagon papers case, Justice Potter
Stewart put it,wheneverythi^gisclassiiied,nothingisclassified.
I^ampantoverclassiUcationin t h e ^ S system means that thousands ofsoldiers, analysts andintelligenceofiicersneed accessto
huge volumes of purportedly classified material. And that necessary access in tu^^ makes it impossible to eifeclively protect
truly vital secrets.
Gneofonr panelists here t ^ a y putitperiectlyin arecent ap
pearance. He explained, our problem with our security system, and
why BradleyManning can get his hands on all these cables, is we
got low fences aroundavastpirairie because the govemment classi^es just about everything. W^at we really need are high ^nces
aroundasmall graveyard o f t h a t is really sensitive, furthermore,
^e are too quick to accept government claims that ri^^-the national
security and far too quick to it^rget the enormous valu^B of some national security leaks. As t o t h e h a m i caused by these ^^Bleases most
will agree withthe Defense Secretary, Bob Gates,hi^^ .assessment.
l^ow, 1 liave heard the impact of these releases 07^ our foreign
policy described as ameltdowi^, as ^ game changer, Bind so on. I
thinki^ose descriptions are f ^ r l y signiiicantlyover^^Boi^ht. And
Mr. Gate^ continues, is this ^n^arrassing7 ^es. Is it awkward^
^es.Consequences for l^.S.pol^^y^lthink fairly modest.
So the harm here, accordinig to onr Republican l^^^fense Sec^
retary, is fairly modest. Amon^ the othersi^e of the h^dger,there
is noneedtogo all the wayl^ack to thePentagonp^pers tolind
examples of national security ^^ak^ that w^r^ ^ t i i ^ ^ i tn ^tnpp^n^
government abuses and preser^ingahealthy democracy.They nappen all the time.
In ^^^^, The ^ew ^ork Tiime^ published critical inlbrmation
aboutwidespreaddomesticsu^eillance. Intimately, weleamedof
agovemmental crisis that included threats of mass resignations at
the JusticeDepartment andot^trageou^efforts to coerceasick attorney generalintoapproving^llegal spyingover theobjectionsof
hisdeputy andlegalcouns^l's^f^ce. If not for thisleak,we would
have never learned whatacivi^ libertarian John Ashcroit is.
In ^0^^,the leak ofasecretoilice of legal counsel interrogation
memos led to broader revelati^s of th^CIA^sbrutalenhanced in
terrogation programs at Blacl^ sites. These memoshad not been

25908

previously revealed to the Judiciary Committee or to many inCon^
gress. Some leel this harmed national security But to many Americans, theharm ^as asecretprogramof ^vaterboardingandother
abuses that might never have been ended but ibr the leak.
And so^^ want to, as theoneCommitteein the Congress that
Ihaveagreat and high regard for, takeacloser look at the issues
andconsider what, ifany,changesinthelaw might be necessary.
A n d l w a n t t o welcomethis very distinguishedpanel. Ihaveread
lateintothenight,andlwasawakemostofthetimewhenIwas
readingthis,somereally^eat testimony A n d l am^oglad that
you are a l l h e r e ^ t h u s . 1 would likenowtorecogni^e my f^^end
and Banking Member, Judge Louie Gohmert.
Mr. Goili^RT. Thankyou, Chairman. And 1 do appreciate the
witnesses here. Beiorell^gin my actual statement, let n^e^ust say
lappreciate, and am also intrigued by your metaphorical use of the
need^brhighiences aroundasmall^aveyard.Butlamcurious,
are you saying this Administration is located inasmall graveyards
I ^ that the points
Mr.Co^^RS. See me after the hearing, please, Judge Gohmert.
Mr. GoUMERT. Thank you. Chairman And I appreciate th^
Banking Member Smith asking me to ^tand in But the release last
month by WikiLeaks of over ^5^,0^0 classified and diplomatic L^.S.
documents threatens our national security,ourrelationswith foreign governments, and continued candor from embassy oilicials and
foreign sourceiS.Manyhave applauded theWeb site and its founder, Julian Assange, as ahero advocating the continuedrelease of
classi^edandsensitive govemment documents. But to do so isboth
naive and dangerous. Websites suchas WikiLeaks and thene^s
publications that reprint these materials claim to promote increased government transparency.
Buttherealmotivationisself-promotion andincreasedcirculation to alargeextent. They claim tobe in pursuit of uncovering
govemment wrongdoing but dismiss any criticism that their actions may be wrong or damaging to thecountry. As long as there
have been governments,therehavebeeninformation protected by
those governments. There have clearly been documents classified
that should not havebeenclassi^ed.Whilethere is legitimate dispute overthe e^ent to whichinformationis protected and classified, i t is simply unrealistic to think that the protection ofinformation serves no legitimate ptirpose.
Much attention has beengivento this most recentWikiLeaks release.Manydismissthat any negative repercussions resulted from
the leak arguing that the documents, while embarrassing to the
U.S., did no real harm to the country. But what about previous
leaks hythisWebsite^Gn July ^5, ^^1^,WikiLeaks released con^dential military Held reports on the war in Afghanistan. This site
released Iraq warrelateddocumentsonOctober^^,^D10. Bothof
these leaks reveal sensitive military inlbrmation that endanger
military troops and may have bolstered our enemy^s campaigns
against us.
Last month's WikiLeaks release has t h r u s t i n thespotlight an
old, some would even say, arcane statute, the espionage Act of
l ^ l ' ^ . Ithas also resurrected an age-old debate on^irst An^endment protections aiforded to media publications.

25909

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

RULING: Defense Motion
To Compel #3

14 September 2012

At issue before the Court is a Defense motion to compel the Govemment to produce that
portion of 1374 emails regarding the accused's confinement at Marine Corps Base Quantico
(MCBQ) that has not been disclosed to the Defense. The Govemment has disclosed
approximately 684 of the emails to the Defense. Some of the remaining emails are illegible.
The Govemment opposes release of the undisclosed emails to the Defense on the grounds
that they are not relevant or material to the preparation of the defense because they address (1)
public affairs matter, to include discussions of media articles and preparation of responses to
media inquiries, including responses to media reports by the New York Times and Frontline; (2)
protesters at MCBQ to include discussions of upcoming protests, the number of protestors, and
plans to respond to protests; (3) discussions of operational impact on the Pretrial Confinement
FaciUty at MCBQ based on projected detainees, the Defense Base Realignment and Closure
Commission (BRAC); (4) providing and fimding mental health professionals to include
discussions of the extent of each Service's financial obligations; (5) administrative coordination,
to include ensuring detainees, including the accused, had the proper uniform; (6) discussion of
the accused's "chasers"; (7) discussions of the definitions of MCBQ regulations regarding visits
and statements of changes the accused made to his visitation list; (8) editing drafts of proposed
documents to include responses to media inquiries; (9) discussions of visits of officials to MCBQ
unrelated to the accused; and (10) discussions of complying with the Health Insurance Portability
and Accountability Act (HIPPA). The Govemment has not asserted a privilege regarding the
disclosure of the emails.
On 28 August 2012, the Court ordered the Government to produce the undisclosed
legible emails to the Court for in camera review in accordance with (LAW) RCM 701(g). The
Court has conducted an in camera review of the undisclosed legible emails and rules as follows
ORDER: No later than 18 September 2012, the Govemment shall disclose all of the
undisclosed legible emails to the defense except the following emails listed by Bates numbered
pages which either refer to subject matter unrelated to U.S. v. Manning or are not material to the
preparation ofthe defense or relevant to the Article 13 motion pending before the Court:

APPELLATEEXHIBIT.
Page.

ofPage(s)

317

25910

Bates numbers not required to be disclosed:
00063781-2
00063857-9
00065548-54
00065733-4
00067063
00067291-93
00067974-5
00068205
00068433-40
00069557-8
00069565-71
00070654-58
so ORDERED this 14* day ofSeptember in chambers.

-dX

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

APPELLATEEXHIBIT.
Page

.ofPage(s)

25911

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 Notification
to the Court
for ODNI FUes
14 September 2012

In accordance with the Court's Order, dated 1 August 2012, Appellate Exhibit CCXXX, as of
14 September 2012, the United States has provided the defense or made available for inspection
by the defense all discoverable files owned by the Office of the Director of National Intelligence
(ODNI).

ASHDEN FEIN
MAJ, JA
Trial Counsel
I certify that I served or caused to be served a true copy of the above on Mr. David Coombs,
Civilian Defense Counsel via electronic mail, on 14 September 2012.

ASHDEN FEIN
MAJ, JA
Trial Counsel

APPELLATE EXHIBIT 2 ) ] ^
Page

of Page(s)

25912

UNITEDSTATES OF AMERICA
V.

Manning,BradIeyE.
PFC,U.S.Army,
HHC,U.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Prosecution Disclosure
to tbe Defense

14September2012

The United States responds to the Court's Order, dated 29 May 2012as follows:
On 14September 2012,the United States filed an ^.^^^^^^ motion requesting the Court consider
the motion ^^^^^^^^ and ^.^^^^^^ under MRE 505(g)(2)and to authorise redactions ofportions
ofDepartment ofState documents that are neither favorable to the accused and material to guilt
orpunishment, relevant and necessary forproduction underRCM 703(f), subject to production
underthe Court'sOrderdatedl9July 2012, nor "necessary to enable the accused to prepare for
trial" under MRE 505(g)(2). The United States seel^s to protect foreign govemment information
and foreign relations or foreign activities ofthe United States.
Onl4September 2012, the United States filed an ^.^^^^^^ motion requesting the Court consider
the motion ^^^^^^^^^ and ^.^^^^^^ under MRE 505(g)(2) and to authori^easummary of
information contained within Central Intelligence Agency(CIA)documents that is favorable to
the accused and material to guilt orpunishment. See Enclosure. The United States seel^s to
protect information relating to intelligence sources, methods, and activities, all within the
national security interests ofthe United States.

ASHDENFEIN
MAJ,JA
Trial Counsel
Enclosure
Govemment ex parte Motion(CIA)^unclassified redacted versions

25913

UNITED OF AMERICA

Government in camera Motion for

v. Authorization of a Summary of

CIA Information
Manning, Bradley E. under MRE S05(g)(2)
PFC, US. Army,
US. Army Garrison,
Joint Base Myer-Henderson Hall 14 September 2012
Fort Myer, Virginia 2221]



(U) COMES NOW the United States of America, by and through undersigned counsel. and
respectfully requests this Court: consider this motion in camera and ex parte under MRE
S05(g)(2); and (2) authorize a summary of information contained within Central Intelligence Agency
(CIA) documents under Military Rule of Evidence (MRE) 505(g)(2) that is favorable to the accused
and material to guilt or punishment, or relevant and necessary for production under Rule for Courts-
Martial (RCM) 703(f).



(U) As the moving party. the United States has the burden of persuasion on any factual issue
the resolution of which is necessary to decide the motion. RCM 905(c)(2). The burden of proof is
by a preponderance of the evidence. RCM 905(c)( I).

FACTS

(U) On 25 July 2012, the Government requested leave of the Court until 14 September 2012
to disclose. either to the defense or to the Court under MRE 505(g)(2). potentially discoverable
records owned by the CIA which were not subject to the Court's 22 June 2012 order. gee AE
On 26 July 20l 2, the Court ordered the prosecution to ?le a supplemental pleading
stating, with particularity. the approval procedures required prior to disclosure of infonnation above
the ?Secret" level. S_m Email from Court. dated 26 July 2.

(U) On 3| July 20! 2. the Government ?led the supplemental pleading. AE
On I August 20l2, the Government's request for leave until 14 September 20l2 was granted.
AE



25914



:mv be contacted at?



(U) The CIA gives temporary custody of the summary to the prosecution. The prosecution is
authorized to malte the summary available to the defense counsel and their security experts to inspect
until the end of the court-martial. The defense counsel are only authorized access to inspect the
summary with their security experts present. The defense counsel and their experts are authorized to
take notes. and those notes will be classi?ed at the same level as the stunmary. All notes must be
stored pursuant to the Court's Protective Order. dated I6 March 20l 2. The defense counsel and their
experts are not authorized to share the information contained within the summary or their notes with
the accused. At the conclusion of the court-martial. the prosecution is required to return all the
copies of the summary to the CIA.

WIN NE

(U) The United States does not request any witnesses be produced for this motion. The
prosecution requests that the Court consider the enclosures listed at the end of this motion.

LEGAL AUTHQRITY QBQUMENT

(U) If classi?ed information is at issue in a court-martial, then the United States may agree to
disclose the classi?ed information to the defense under a protective order, See MRE S05(g)( I).
Additionally, the United States may motion the Court to "authorize (A) the deletion of speci?c items
of classi?ed infonnation from documents to be made available to the [accused], (B) the sulntitution
of a portion or summary of the infonnation for classi?ed documents. or (C) the substitution of a
statement admitting relevant facts that the classi?ed infomration would tend to prove." MRE
505(g)(2). The military judge "shall authorize" these alternative forms. unless she determines "the
disclosure of the classi?ed information itself is necessary to enable the accused to prepare for trial."
lf a motion is ?led under MRE S05(g)(2), then upon request of the United States. the motion
"shall" be considered by the military judge in camera and "shall not be disclosed to the accused." 151,

(U) The procedures outlined in MRE 505(g)(l and (2) apply when the United States
voluntarily discloses information and does not withhold classi?ed information under MRE 505(c). If

the United States intends to withhold information under MRE 50S(c), then the United States must
move for an in camera proceeding under MRE 505(i)(2). obtain an af?davit demonstrating that

25915

disclosure of the information rauonably could be expected to cause damage to the national security
under MRE 505(i)(3), and follow the notice procedures outlined under MRE 50S(i)(4). See MRE
S05(i). For the purposes of this ?ling. the CIA. through the prosecution, is voluntarily disclosing a
summary of the documents and is gt withholding any classi?ed information under MRE 505(c) and
MRE 505(i).



(U) The information contained within the original documents, which is not included in the
summary. does not meet the Bgdy/Qigljg, RCM 70l or RCM 703( f) standards and therefore is
not discoverable or subject to production. Additionally. that infomiation is not ?necessary to enable
the accused to prepare for trial" under MRE 505(g)(2). ?Therefore, the defense is not entitled to
discovery of the other information in the documents.

(U) Should the Court ?nd the deleted, substituted, or summarized information is discoverable
under RCM 70l(a)(6) or B_r3_d1/Giglio, subject to production under RCM 7030?). or "necessary to
enable the accused to prepare for trial" under MRE then the United States requests the
opportunity to either (I) address the Court's ?ndings with the relevant govemment agency to
determine whether a different alterative under is appropriate and file that alternative
with the Court, or (2) allow for the relevant government agency to claim a privilege under MRE
505(c) and the United States to move for an in camera proceeding under MRE 505(i).

(U) The United States will not use any portion of these CIA documents not disclosed to the
defense during any portion of the trial. This includes rebuttal and rule of completeness if the defense
introduces or references anything in the substitution.

25916

CONCLUSION
(U) The United States respectfully requests this Court; (I) consider this motion in camera

and ex pane under MRE 505(g)(2), and (2) authorize a summary of information contained within
CIA documents that is favorable to the accused and material to guilt or punishment, or relevant and

necessary for production under RCM 703(l).
%0
PT, A

Assistant Trial Counsel

3 Enclosures
l. Original CIA Documents on ?le at the CIA (variously classi?ed) [not attached]



25917

UNITED STATES OF AMERICA

Government ex parte Motion for
v. Authorization of a Redaedon of
Material within One Department of
Manning, Bradley E. Homeland Security Document under
PFC, US. Army, RCM 70l(g)(2)
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hal]


Fort Myer, Virginia 2221 1

14 September 2012

RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court: (1) consider this motion in camera and ex parre under Rule for
Courts Martial (RCM) 70l(g)(2); and (2) authorize a redaction of material within one
Department of Homeland Security (DHS) document under RCM 70l(g)(2) that is neither
favorable to the accused and material to guilt or punishment, not relevant and necessary for
production under RC 703(t).

BURDEN OF PERSUASION AND BUQQEN QE EEQQE

As the moving party, the prosecution has the burden of persuasion on any factual issue
the resolution of which is necessary to decide the motion. RCM 905(c)(2). The burden of
proof is by a preponderance of the evidence. RCM 905(c)(1).

FACTS

On 25 July 2012, the prosecution requested leave of the Court until 14 September 2012 to
complete its Search of DHS records and to disclose any records which contain discovaable
material. Sec; Appeliate Exhibit (AE) CC XXVI.

On 26 July 2012, the Court ordered the prosecution to file a supplemental pleading
stating with particularity the efforts required to obtain the requested infonnation. The
prosecution ?led its supplement on 31 July 2012. AE

On 1 August 2012, the Court granted the prosecution?s request for leave until 14
September 2012 to search for, and disclose, any discoverable DHS documents to the defense or
to the Court under RCM 70l(g)(2) or MRE 505(g)(2). AE

On 14 September 2012, the prosecution disclosed 44 documents owned by DHS.
As of 14 September 2012, the prosecution has provided the defense, or made available

for inspection by the defense, all discoverable documents owned by DHS, except for the one
document that is the subject of this motion.

APPELLATE EXHIBIT 5210

PAGE REFERENCED:
PAGE PAGES



25918

EVIDENCE

The prosecution does not request any witnesses or evidence be produced for this motion.
The prosecution requests that the Court consider the enclosure listed at the end of this motion.

LEGAL AUTHORITY AND ARGUMENT

RCM 701 states that ?[u]pon a suf?cient showing the military judge may at any
time order that the discovery or inspection be denied, restricted, or deferred, or make such other
order as is appropriate." RCM 701 The rule continues that ?[u]pon motion by a party, the
militaryjudge may permit the party to make such showing, in whole or in part, in writing to be
inspected only by the military judge.? see also AE 70l(g)(2) docs authorize
the Court to allow 0.1? purtc showings by either party when moving the Court to restrict or limit
discovery?); United States v. Abrams. 50 MJ. 361. 363 (C.A.A.F. 1999) (under RCM 70l(g)(2).
?the military judge has such tools as in camera reviews. and protective or modifying orders at his
disposal").

The proposed redacted information is neither favorable to the accused and material to
guilt or punishment. nor relevant and necessary for production. ?ee Bradv v. 373
U.S. 83 (1963); RCM 70l(a)(6); RCM 703(i).

The proposed redaction is shaded in grey on the enclosed document. Se; Enclosure.

Though unclassi?ed. the redaction is necessary

The prosecution will not use the redacted infonnation during any portion of the trial.

CONCLUSIQN

The prosecution respectfully requests this Court: (1) consider this motion in camera and
ex partc under RCM 7()l and (2) authorize a redaction of material within one DHS
document under RCM 701 that is neither favorable to the accused and material to guilt or
punishment. nor relevant and necessary for production under RCM 703(f).


1*

J. HUNTER WHYTE
PT. A
Assistant Trial Counsel

Enclosure
Department of Homeland Security Document

25919

Appellate Exhibit 321
2 pages
ordered sealed for Reason 7
(govemment)
Military Judge's Seal Order
dated 20 August 2013
stored in the original Record
of Trial

25920

Appellate Exhibit 321
Enclosurel
2pages
ordered sealed for Reasons
(govemment)
Military Judge's Seal Order
dated20August2013
stored in the original Record
ofTrial

25921

Appellate Exhibit 322
ipages
classi^ed
"SEORET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classi^ed
supplement to the original
Record ofTrial

25922

Appellate Exhibit322
Enclosurel
classi^ed
"TOl^ SECRET"
ordered sealed for Reasonl
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
is stored at the Of^ce ofthe
OeneralOounsel^Oentral
Intelligence Agency pursuant
toAE^OO

25923

Appellate Exhibit322
Enclosure2
2pages
classi^ed
"SEORET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classi^ed
supplement to the original
Record ofTrial

25924

Appellate Exhibit 322
Enclosure3
12pages
classified
"SEORET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

25925

UNITED STATES OF AMERICA

Governnu.-nt in camera Motion for

v. Authorization of a Summary d?

CIA lrionnation
Manring, Bradley E. under MRE S05(g)(2)
PFC, US. Army,
HHC, US. Army Garrison,
Joint Base Myer'~Henderson Hall 14 September 2012
Fort Myer, Virgilio 2221]



(U) COMES NOW the United States of America. by and through undersigned counsel. and
respectfully requests this Court; (Dconsiderthis motion in canlem and ex pane under MRE
and (2) authorize a summary of infomlation comained within Central Intelligence Agency
(CIA) documents under Mllitary Rule of Evidence (MRE) that is favorable to the accused
and material to guilt or punishment. or relevant and necessary for production Rule for Courts-
Martial (RCM) 703?).



(U) As the moving party. the United States has the burden of persuasion on any factual issue
the resolution of which is necessary to decide the motion. RCM 905(c)(2). The burden of proof is
by a preponderance ofthc evidence. RCM I).

FACTS

(U) On 25 July KHZ. the Govemment requsted leave ofthe Court until I4 September 20l2
to disclose, either to the defense or to the Court under MRE S05(g)(2), potentially discoverable
records owned by the CIA which were not subject to the Court's 22 June 20l2 order. ge AE
OCXXVI. On 26 July 20I 2, the Court ordered the prosecution to ?le a supplemental pleading
siding, with particularity. the approval procedures required prior to disclosure of information above
the ?Secret? level. Email from Court. dated 26 July 20|2.

(U) On 3| July 20l 2. the Govemment ?led the supplemental pleadinS- xx: AE
On I August 20l2. the Govemment?s request for leave until I4 September 20l2 was granted.
AE

3 15



PAC-L7 r5?l







may be contacted

(U) The CIA gives temporary custody of the summary to the prosecution. The prosecution is
authorized to make the summary available to the defense counsel and their security experts to inspect
until the end of the court?mania|. The defense counsel are only authorized access to inspect the
summary with their security experts present. The defense counsel and their experts are authorized to
take notes. and those notes will be classi?ed at the same level as the summary. All notes must be
stored pursuant to the Court's Protective Order, dated 16 March 20! 2. The defense counsel and their
experts are 39; authorized to share the information contained within the summary or their notes with
the accused. At the conclusion of the court-martial. the prosecution is required to return all the
copies of the summary to the CIA.

WITN ESSESIEV IDENCE

(U) The United States does not request any witnesses be produced for this motion. The
prosecution requests that the Court consider the enclosures listed at the end of this motion.

LEGAL AUTHORITY AND ARGUMENT

(U) lfclassifred information is at issue in a court-martial. then the United States may agree to
disclose the classi?ed infomiation to the defense under a protective order. $3 MRE 505(g)( I).
Additionally, the United States may motion the Court to "authorize (A) the deletion of speci?c items
ofclassi?ed information from documents to be made available to the [accused]. (B) the substitution
ofa portion or summary ofthe information for classi?ed documents, or (C) the substitution of a
statement admitting relevant facts that the classi?ed information would tend to prove." MRE
505(g)(2). The military judge "shall authorize" these alternative forms. unless she determines "the
disclosure ofthe classi?ed information itself is necessary to enable the accused to prepare for trial."
31 If a motion is ?led under MRE 50S(g)(2). then upon request of the United States. the motion
"shall" be considered by the military judge in camera and "shall not be disclosed to the accused." 11.

(U) The procedures outlined in MRE 505(g)(l and (2) apply when the United States
voluntarily discloses information and does not withhold classi?ed information under MRE 505(c). If
the United States intends to withhold infomration under MRE 505(c). then the United States must
move for an in camera proceeding under MRE 505(i)t 2). obtain an affidavit demonstrating that



25926

25927

disclosure of the infomiation reasonably could be expected to cause damage to the national security
under MRE 505(i)(3). and follow the notice procedures outlined under MRE _S_e_e MRE
For the purposes of this ?ling. the CIA. through the prosecution. is voluntarily disclosing a
summary of the documents and is not withholding any classi?ed information under MRE 50S(c) and
MRE 505(



(U) The information contained within the original documents. which is not included in the
summary. does not meet the Bradv/Gigliq, RCM 70l or RCM 703(i) standards and therefore is
not discoverable or subject to production. Additionally, that information is not ?necessary to enable
the accused to prepare for trial" under MRE 505(g)(2). Therefore. the defense is not entitled to
discovery of the other information in the documents.

(U) Should the Coun ?nd the deleted. substituted, or summarized information is discoverable
under RCM 70l(a)(6) or Bradv/Giglio. subject to production under RCM or "necessary to
enable the accused to prepare for trial" under MRE 505(g)(2). then the United States requests the
opportunity to either I) address the Court's ?ndings with the relevant government agency to
determine whether a different alterative under MRE S05(g)(2) is appropriate and ?le that alternative
with the Court, or (2) allow for the relevant government agency to claim a privilege under MRE
505(c) and the United States to move for an in camera proceeding under MRE 505(i).



(U) The United States will not use any portion ofthese CIA documents not disclosed to the
defense during any portion of the trial. This includes rebuttal and rule of completeness if the defense
introduces or references anything in the substitution.

25928

CONCLUSION

(U) The United States respectfully requests this Court: (l)consider this motion in camera
and ex pane under MRE 505(g)(2). and (2) authorize a summary of information contained within
CIA documents that is favorable to the accused and mznerial to guilt or punishment, or relevant and
necessary for production under RCM 703(7).

-2

CPT. IA

Assistant Trial Counsel

3 Enclosures

I. CIA Documents on file at the CIA (variousli classi?ed) inot attached]



25929

Appellate Exhibit 32^
2pages
ordered sealed for Reasons
(govemment)
Military Judge's Seal Order
dated20August2013
stored in the original Record
ofTrial

25930

Appellate Exhibit 32^
Enclosurel
pages
classitied
"SEORET"
ordered sealed for Reason2
andReason^(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

25931

Appellate Exhibit32^
Enclosure2
lOJ^
classi^ed
"SECRET"
ordered sealed for Reason2
andReason^(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

25932

UNITEDSTATESOF AMERICA
Prosecution Notification
totheCourt
for quantico Emails

Manning, Bradley E.
PFCU.S.Army,
HHC,U.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

1^ September 2012

In accordance with the Court's Order, datedl8September 2012, the United States disclosed
all ofthe undisclosed legible emails to the defense except the emails listed by "Bates" numbered
pages referenced in the Court's Order. Although the Court referenced "Bates" numbers in its
Order, the numbers actually provided to the Court were sequential administrative control
numbers forthe Court to reference during its ^^^^^^^^ review and not discovery production
Bates numbers. Each page of emails produced pursuant to the Order,wasprovidedaunique
Bates number, in the standard format used in this case, for the defense to reference.

FEIN
ASHD
MAJ,JA
Trial Counsel
Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David Coombs,
Civilian Defense Counsel via electronic mail,onl8September 2012.

rt
ASHDEN FEIN
MAJ, JA
Trial Counsel

APPELLATE EXHIBIT_3c2^
Page
ofPage(s) •

25933

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
MOTION TO DISMISS ALL

v. CHARGES AND
SPECIFICATIONS WITH
PREJUDICE FOR LACK OF A
MANNING, Bradley E., PFC SPEEDY TRIAL

U.S. Army,

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

DATED: 19 September 2012



RELIEF SOUGHT

1. PFC Bradley E. Manning, by counsel, pursuant to the Sixth Amendment to the United States
Constitution, Article 10, Uniform Code of Military Justice (UCMJ), l0 U.S.C. 810. Rule for
Courts Martial (R.C.M.) 707(a), and applicable case law, requests this Court to dismiss all
charges and specifications with prejudice for lack of a speedy trial.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. The Government bears the burden of persuasion on a motion to dismiss for denial of the right
to speedy trial under R.C.M. 707. R.C.M. Additionally, the Government bears the
burden of persuasion on a motion to dismiss for denial of the right to speedy trial under Article
10. See United States v. Mizgala, 6| 122, I25 (C.A.A.F. 2005) (?Under Article 10, the
Government has the burden to show that the prosecution moved forward with reasonable
diligence in response to a motion to dismiss.? (citing United States v. Brown, 28 .M.R. 64, 69
(C.M.A. 1959)?: United States v. Calloway, 47 MJ. 782, 785 (N-M. Ct. Crim. App. 1998)
the defense raises a motion to dismiss for lack of speedy trial under Article 10, UCMJ,
10 U.S.C. 810, the prosecution has the burden of proof to establish that such immediate steps
were United States v. Laminman, 41 518, 520-21 (C.G. Ct. Crim. App. 1994)
is our conclusion that RCM 905(c)(2)(B) places the burden of proof on the prosecution whenever
the defense moves to dismiss for lack of speedy trial, whether the motion is framed under the
terms of Article 10 or RCM Therefore, the Government bears the burden of persuasion
on all aspects of this motion. The burden of proof on any factual issue necessary to decide this
motion is by a preponderance of the evidence. R.C.M. 905(c)(1).



In addition to this statement of facts, the Defense has also prepared a chronology detailing the processing of the
case, as suggested by R.C.M. 707(c)(2). See Attachment PAGE .7

?jg.



25934

3. As of the date of this motion, PFC Manning has been in pretrial con?nement for 845 days.
Eight hundred forty-?ve days. Two days after the Government placed PFC Manning in
administrative hold with escorts on 27 May 2010, PFC Manning was placed into pretrial
con?nement. See Con?nement Order, Attachment 2. He has remained in pretrial con?nement
ever since. With trial scheduled to commence on 4 February 2013, PFC Marming will have
spent a grand total of 983 days in pretrial con?nement before even a single piece of evidence is
offered against him. To put this amount of time into perspective, the Empire State Building
could have been constructed almost two-and-a-half times over in the amount of time it will have
taken to bring PFC Manning to trial.2

4. The processing of this case has been marred with prosecutorial incompetence and a profound
lack of Government diligence. The combination has led to an abject failure of the Government
to honor PFC Manning?s fundamental speedy trial rights. Since the date of arraignment is a
signi?cant date in the R.C.M. 707 speedy trial analysis, see R.C.M. 707(b)(1) (providing that the
R.C.M. 707 speedy trial clock terminates when the accused is arraigned), the discussion of the
facts of this case will be divided into pre-arraignment delay and post?arraignment delay.

A. Pre-Arraignment Delay
1. R.C.M. 706 Board

5. The Government preferred the original charges against PFC Manning on 5 July 2010. The
next day, COL David M. Miller appointed LTC Craig Merutka to be the Article 32 Investigating
Of?cer (IO). See Merutka Appointment Memorandum, Attachment 3. On 11 July 2010, the
Defense moved for a delay of the Article 32, UCMJ, 10 U.S.C. 832, hearing in order to
conduct an R.C.M. 706 board. See 11 July 2010 Defense Request, Attachment 4. After this
initial request was denied, the Defense renewed its request for delay a day later. See 12 July
2010 Defense Request, Attachment 5. This request was granted. When no further action was
taken, the Defense yet again renewed its request for a R.C.M.706 board on 18 July 2010. See 18
July 2010 Defense Request, Attachment 6 (stating in the ?rst paragraph date, the Defense
has not been noti?ed as to whether that request [request from 11 and 12 July] has been approved
or

6. On 29 July 2010, the Government transferred PFC Manning to the Marine Corps Base
Quantico (MCBQ) Pretrial Con?nement Facility (PCF) in Quantico, Virginia. See Appellate
Exhibit 258 at 4. The PCF Commander, CWO4 James Averhart, approved of the Duty Brig
Supervisor?s Maximum (MAX) custody determination and also decided that PFC Manning
should be placed under special handling instructions of Suicide Risk (SR). Id. Despite the
recommendations of two senior forensic (and contrary to the requirements of
Secretary of Navy Instruction (SECNAVINST) 1640.9C), the Brig did not immediately remove
PFC Manning from Suicide Risk, waiting almost a full week to move PFC Manning from
Suicide Risk to Prevention of Injury (POI) status on 11 August 2011. Id. at 4-5. For the next 8
months, PFC Manning remained in MAX custody and POI status, despite the recommendations

2 The Empire State Building took one year and 45 days to build. See 1930s/a/
empirefacts.htm.

25935

of multiple that he be downgraded from POI status. Id at 8, 11. The severely
onerous conditions of life under MAX custody and POI status were detailed extensively in the
Defense Article 13 Motion. See id. at 8-11. As if life at Quantico was not dif?cult enough for
PFC Manning under MAX custody and POI status, he was placed on Suicide Watch on two
separate occasions: from 18 January 2011 to 21 January 201 1 and from 2 March 201 1 until the
time he was transferred to the Joint Regional Correctional Facility (J RCF) at Fort Leavenworth,
Kansas on 20 April 201 1. See id. at 27, 35-36. During each stint on Suicide Watch, the Brig
forced PFC Manning to, among other things: strip down to his underwear during the day; sleep
naked each night; surrender his eyeglasses; and remain in his 6?x8? cell. See id. at 27-37. The
severity of PFC Manning?s treatment at the hands of the Quantico Brig sparked intense criticism,
both domestically and internationally. See id. at 38-41.

7. Meanwhile, on 4 August 2010, the Convening Authority, COL Carl R. Coffman, Jr.,
appointed LTC Paul Almanza as the new IO. See Almanza Appointment Memorandum,
Attachment 7. This memorandum provided LTC Almanza with the authority to exclude
reasonable periods of delay under R.C.M. 707 but directed that all approvals or denials of delay
requests must be in writing. Id. at 1. Further, the memorandum stated that the Convening
Authority must approve all delays in excess of ten days. Id.

8. One week later, as the Government had still made little to no progress on the three prior
Defense requests for a R.C.M. 706 board, the Defense yet again requested a delay in the Article
32 hearing for the completion of the R.C.M. 706 board. See 1 1 August 2010 Defense Request,
Attachment 8. The Convening Authority approved the requested delay on 12 August 2010,
ordering that ?the period from 1 1 August 2010 until the R.C.M.706 Sanity Board completion is
excludable defense delay.? See 12 August 2010 Excludable Delay Memorandum, Attachment 9.

9. On 25 August 2010, the Defense requested that the R.C.M. 706 board be delayed until a
forensic was appointed to the Defense team. See 25 August 2010 Defense Request,
Attachment 10. That same day, the Convening Authority approved the request, stating that
?[t]he period between 27 August 2010 and until the GCMA takes action on the defense request is
excludable delay under R.C.M. See 25 August 2010 Excludable Delay Memorandum,
Attachment ll.

10. The next day, the Defense requested delay of the R.C.M. 706 board until procedures were
adopted to safeguard any classi?ed information discussed in the board?s determination. See 26
August 2010 Defense Request, Attachment 12. On 3 September 2010, the Defense requested
appropriate security clearances for the Defense team and access for PFC Manning. See 3
September 2010 Defense Request, Attachment 13. The Convening Authority ultimately issued
its preliminary classi?cation order on 22 September 2010. See 22 September 2010 Preliminary
Classi?cation Review Order, Attachment 14. The Defense responded to this order on 28
September 2010. See 28 September 2010 Defense Response to Preliminary Classi?cation
Review Order, Attachment 15.

1 1. On 12 October 2010, the Convening Authority began its practice of issuing an
excludable delay memorandum. In the 12 October 2010 memorandum, the Convening Authority
stated that ?[t]he period from 12 July 2010 until the date of this memorandum is excludable

25936

delay under RCM See 12 October 2010 Excludable Delay Memorandum, Attachment
16. For the basis of this period of excludable delay, the Convening Authority identi?ed the
following: the Original Classi?cation Authorities? (OCA) reviews of classi?ed information; the
Defense Requests of 1 1 July 2010, 18 July 2010, 25 August 2010, 26 August 2010, 3 September
2010; the Preliminary Classi?cation Review Order; and the Defense Response to the Preliminary
Classi?cation Review Order. See id.

12. A little less than a month later, the Convening Authority excluded the period from 12
October 2010 to 10 November 2010 as excludable delay under R.C.M. 707(c). See 10
November 2010 Excludable Delay Memorandum, Attachment 17. The Convening Authority
listed the same defense requests and responses that were listed in the 12 October 2010
Excludable Delay Memorandum as the basis for the most recent period of excluded delay. See
id

13. On 13 December 2010, the Defense security experts completed their preliminary
classi?cation review and provided the required written responses to the questions posed by the
Convening Authority?s Preliminary Classi?cation Review Order. See 13 December 2010
Memorandum of Defense Security Experts, Attachment 18.

14. The Convening Authority issued another excludable delay memorandum on 17 December
2010, this time excluding the period from 10 November 2010 to 17 December 2010 under
R.C.M. 707(c). See 17 December 2010 Excludable Delay Memorandum, Attachment 19. For
the basis of its ?nding of excludable delay, the Convening Authority identi?ed the OCA reviews
of classi?ed information, and the Defense requests of 11 July 2010, 18 July 2010, 26 August
2010, and 3 September 2010. See id.

15. On 13 January 2011, the Defense made a speedy trial request, pursuant to the guarantees of
the Sixth Amendment to the United States Constitution, Article 10, and R.C.M. 707. See 13
January 2011 Defense Speedy Trial Request, Attachment 20.

16. The next day, the Convening Authority issued another excludable delay memorandum,
stating that ?[t]he period from 17 December 2010 until the date of this memorandum [14 January
201 1] is excludable delay under RCM See 14 January 2011 Excludable Delay
Memorandum, Attachment 21. The memorandum set forth the exact same basis for delay that
was set forth in the 17 December 2010 Excludable Delay Memorandum. See id. The Convening
Authority acknowledged the Defense?s speedy trial request from the day before. See id

17. On 3 February 2011, the Convening Authority issued an order directing the R.C.M. 706
board to resume its examination into the mental capacity and mental responsibility of PFC
Manning. See 3 February 201 1 Order to Resume Conducting Sanity Board, Attachment 22, at 1.
The order set a suspense date of 3 March 2011, four weeks from the date of the order. See id. at
6.

18. About two weeks later, on 15 February 201 1, the Convening Authority issued another
excludable delay memorandum, excluding the period from 14 January 201 1 to 15 February 201 1
as excludable delay under R.C.M. 707(c). See 15 February 201 1 Excludable Delay

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Memorandum, Attachment 23. The Convening Authority identi?ed the same bases for delay in
its February memorandum as it had identi?ed in its December and January memoranda. See id
No new bases or reasons for delay were identi?ed. See id. The Convening Authority also
acknowledged the Defense?s 13 January 2011 speedy trial request. See id.

19. On 14 March 2011, almost two weeks after the suspense date set forth in the Convening
Authority?s 3 February 2011 order to resume conducting the R.C.M. 706 sanity board, Dr.
Michael Sweda, Chief Forensic sought an extension of the suspense date for the
R.C.M. 706 board until 29 April 2011. See 14 March 2011 Memorandum Requesting Extension
for R.C.M. 706 Board, Attachment 24. In this memorandum, Dr. Sweda related that the R.C.M.
706 board needed 57 more days than the original suspense date of 3 March 2011 because ?[t]he
evaluators are coordinating suitable dates and times for the ?nal evaluation session to take place.
This involves multiple parties. Additionally, the ?nal interview will take place at a SCIF and
this has resulted in the consumption of extra time for this aspect of the evaluation to be
coordinated.? Id. Four days later, the Convening Authority approved the R.C.M. 706 Board's
request for delay, but set a suspense date of 16 April 2011 instead of the 29 April 2011 suspense
date requested by Dr. Sweda. See 18 March 2011 Memorandum Approving R.C.M. 706 Board?s
Extension Request, Attachment 25.

20. That same day, 18 March 2011, the Convening Authority issued another excludable delay
memorandum. See 18 March 2011 Excludable Delay Memorandum, Attachment 26.
Acknowledging the Defense?s 13 January 2011 speedy trial request, the Convening Authority
excluded the period from 15 February 2011 to 18 March 2011 as excludable delay under R.C.M.
707(c). See id. For the basis of this delay, the Convening Authority identi?ed the same bases
that were articulated in the December, January, and February excludable delay memoranda. See
id. Two other bases were also identi?ed in the March excludable delay memorandum: OCA
consent to disclose classi?ed information and the R.C.M. 706 Board?s extension request. See id.

21. On 15 April 2011, the day before the extended suspense date for the completion of the
R.C.M. 706 Board?s evaluation, Dr. Sweda, on behalf of the Board, requested yet another delay
in the suspense date. See 15 April 2011 Memorandum Requesting Extension for Sanity Board,
Attachment 27. Dr. Sweda requested an extended suspense date of close of business on 22 April
2011. See id. Dr. Sweda explained that this delay was necessary because of the Board?s ?limited
availability to meet as a full board to discuss the report. This is because of con?icting schedules
and demands of the three board members.? Id. The Convening Authority approved, without
Defense input, Dr. Sweda?s request later that same day. Id. While the three board members
were coordinating their schedules, PFC Manning remained con?ned at Quantico, enduring the
severely onerous con?nement conditions, which included being held in MAX Custody, in POI
Status, being stripping naked at night and wearing a suicide smock. See Appellate Exhibit 258,
at 35-37.

22. On 22 April 2011, the R.C.M. 706 Board submitted its ?nal report. See 22 April 2011
Sanity Board Evaluation of Bradley E. Manning, Attachment 28. That same day, the Convening
Authority issued another excludable delay memorandum excluding the period from 18 March
2011 until 22 April 2011 as excludable delay under R.C.M. 707(c). See 22 April 2011
Excludable Delay Memorandum, Attachment 29. This memorandum identi?ed the exact same



25938

bases for the delay as were identi?ed in the 18 March 2011 excludable delay memorandum, as
well as the second extension request by the R.C.M. 706 Board. See id The memorandum
acknowledged the Defense?s 13 January 2011 speedy trial request. See id. This memorandum
was signed for the Convening Authority by SF Monica Carlile, a paralegal for the Government.
See id.

2. Government Requests for Delay

23. On 25 April 2011, the Government submitted the ?rst of many requests for delay of the
Article 32 hearing. See 25 April 2011 Government Request for Delay, Attachment 30. The
Government requested delay until

[t]he United States receives consent from all the Original Classi?cation
Authorities (OCAs) to release discoverable classi?ed evidence and information to
the defense. This consent is necessary in order for the United States to ful?ll its
discovery obligations under Article 46, UCMJ and the Rules for Courts-Martial
(RCM), as well as for the defense to adequately prepare for the Article 32
Investigation.

Id. The Government represented that ?[s]ince 17 June 2010, the United States has been
diligently working with all of the departments and agencies that originally classi?ed the
information and evidence sought to be disclosed to the defense and the accused.? Id. The delay
requested was ?until the earlier of the completion of the OCA Disclosure Requests and OCA
Classi?cation Reviews or 25 May 2011.? Id

24. The Defense opposed this delay the next day, 26 April 201 1. See 26 April 2011 Defense
Response to Government Request for Delay, Attachment 31. In order to minimize any further
delay, the Defense requested that the Government: provide substitutes for or summaries of the
relevant classi?ed documents; allow the Defense to inspect all unclassi?ed documents within the
Government?s control that were material to the preparation of the Defense; and ensure that the
Defense has equal access to CID and other law enforcement witnesses by making available any
requested witnesses. Id. at 1. The Defense also renewed its previous request for discovery that
was either denied or not provided by the Government. Id. Finally, the Defense requested that
any further delay be credited to the GovernmentMay 2011, the Convening Authority issued another excludable delay memorandum,
stating that ?[t]he period from 22 April 201 1 until the date of this memorandum is excludable
delay under RCM See 12 May 2011 Excludable Delay Memorandum, Attachment 32.
The memorandum listed the following as the basis for the delay: OCA reviews of classi?ed
infonnation; OCA consent to disclose information; the Defense?s 26 August 2010 request for the
results of the Govemment?s classi?cation reviews by the the Defense?s 3 September
2010 request for appropriate security clearances for the Defense team and access for PFC
Manning; and the Government?s 25 April 2011 request for delay. See id. The Convening
Authority acknowledged the Defense?s 13 January 2011 speedy trial request. See id.



25939

26. On 22 May 2011, the Government submitted its second request for delay of the Article 32
hearing, relating once again that delay was necessary in order to obtain consent from the OCAS.
See 22 May 2011 Government Request for Delay, Attachment 33. In the ?Update? section of its
request, the Government represented that it was ?continuing? to work with the OCAS to obtain
the necessary consent to disclosed classified information and evidence to the Defense. Id The
Government requested delay until the earlier of the completion of the OCA disclosure requests
and classi?cation reviews or 27 June 2011. See id. The Government promised an update no
later than 25 June 2011. Id.

27. Two days later, the Defense sent an email opposition to the Government?s request for delay.
See 24 May 2011 Email from Mr. Coombs to COL Coffman Opposing Government Request for
Delay, Attachment 34. The Defense relied on its position from the 26 April 2011 memorandum
opposing the Govemment?s ?rst request for delay. Id. The Defense also requested that any
additional delay be credited to the Government. Id.

28. Nevertheless, on 17 June 2011, the Convening Authority excluded the period from 12 May
2011 to 17 June 2011 as excludable delay under R.C.M. 707(c). See 17 June 2011 Excludable
Delay Memorandum, Attachment 35. The ?basis? for this exclusion was the exact same basis
identi?ed in the Convening Authority?s May excludable delay memorandum, except now the
Government?s 22 May 2011 request for delay replaced the 25 April 2011 request for delay that
had been listed in the 12 May 2011 excludable delay memorandum. See id. Finally, at the
conclusion of the memorandum, the Convening Authority repeated, with no elaboration
whatsoever, the line that it had repeated ad nauseam in every excludable delay memorandum
since 13 January 2011: acknowledge and reviewed the defense request for speedy trial, dated
13 January 2011.? Id.

29. On 27 June 2011, two days after its self-imposed update deadline, the Government yet again
requested delay of the Article 32 hearing its third such request in as many months. See 27 June
2011 Government Request for Delay, Attachment 36. This request, like the other two before it,
requested delay ?until the United States receives the proper authority to release discoverable
unclassi?ed and classi?ed evidence and information to the defense.? Id. at 1. The Government
once again represented that it was ?continuing? to work with the OCAS. Id. The Government
therefore requested delay until the earlier of the completion of the OCA classification review
process or 27 July 2011. Id. at 2. Two days later, the Defense opposed the Government?s
request for delay via email, maintaining the position articulated in its 26 April 2011
memorandum opposing the Government?s first request for delay. See 29 June 2011 Email from
Mr. Coombs to COL Coffman Opposing Government Request for Delay, Attachment 37. The
Defense again requested that any additional delay be credited to the Government. Id.

30. On 5 July 2011, the Convening Authority approved the Government's latest request for
delay. See 5 July 2011 Memorandum Approving Government Request for Delay, Attachment
38. The Convening Authority then purported to exclude the period from 22 April 201 to the
restart of the Article 32 hearing as excludable delay under R.C.M. 707(c). Id. Based on the
?national security concerns and ongoing investigations? in this case, the Convening Authority
directed the Government to ?cautiously proceed with the disclosure of Id.
However, the Convening Authority also ordered the Government to ?expeditiously? disclose



25940

information to the Defense once it received the authority to disclose the information in order to
?minimize any unnecessary delay.? Id.

31. To no one?s surprise, the Government requested delay of the Article 32 hearing for the
fourth time in as many months on 25 July 2011. See 25 July 2011 Government Request for
Delay, Attachment 39. The basis of this request was exactly the same as all of the previous
requests: the Government still needed time to get the approvals of the various OCAs to release
information to the defense. See id. at 1. The Government once again presented its patented get-
out-of-diligence-free card by representing that it was still ?continuing? to work with the relevant
OCAs. Id. In order to create the illusion of progress, the Government represented that it had
?produced the Secretary of the Army AR 15-6 and related documents, as well as the complete
record of the MSG Adkins reduction board approximately 10,000 pages of documents in total.?
Id. Of course, the Government neglected to mention that most of these 10,000 pages were
irrelevant, duplicative, or both. The Government requested that the Article 32 hearing be
delayed until the earlier of the completion of the OCA classi?cation review process or 27 August
2011. Id. at 2.

32. Later that same day, the Defense opposed the Government?s request for delay. See 25 July
2011 Defense Opposition to Government Request for Delay, Attachment 40. While
acknowledging that classi?cation reviews do take some time to complete, the Defense pointed
out that ?the Government has now had over a year? to complete the classi?cation review process.
Id. The opposition memorandum also attacked the adequacy of the Government?s explanation of
why such protracted delay was necessary: ?The latest request by the trial counsel for excludable
delay does not adequately explain what has been done to require timely response and reviews by
the relevant Id. In this memorandum, the Defense also renewed its requests for speedy
trial and for the Government to: provide a substitute for a summary of the relevant classi?ed
documents; to allow the Defense to inspect all unclassi?ed documents, tangible items, and
reports within the Government?s control; provide previously denied or withheld discovery; and
provide access to all CID and other law enforcement agents who have worked on the case. Id.
The Defense once again requested that any additional delay be credited to the Government
instead of being excluded under R.C.M. 707(c). Id

33. The Convening Authority nevertheless approved the Govemment?s fourth request for delay
the next day. See 26 July 2011 Memorandum Approving Government Request for Delay,
Attachment 41. Appearing to merely change the dates listed in the 5 July 2011 memorandum
approving the Govemment?s third request for delay, the 26 July 2011 memorandum excluded
under R.C.M. 707(c) the period between 22 April 2011 and the restart of the Article 32. See id.
The Convening Authority did not respond to the Defense?s concerns regarding the Govemment?s
wholly inadequate explanation of why more delay was necessary. See id. Moreover, the
Convening Authority?s memorandum did not even acknowledge the Defense?s request for
speedy trial. See id.

34. On 10 August 2011, the Convening Authority issued another excludable delay
memorandum. See 10 August 2011 Excludable Delay Memorandum, Attachment 42. This
memorandum stated that ?[t]he period from 13 July 2011 until [10 August 2011] is excludable
delay under RCM Id. The Convening Authority relied on the exact same bases for

25941

delay as it had relied on in the excludable delay memoranda June 2011.
See id Namely, the Convening Authority identi?ed the following as providing the basis for the
delay: OCA reviews of classi?ed information; OCA consent to disclose classi?ed information;
the 26 August 2010 Defense request for the results of the Govemment?s classi?cation reviews;
and the 3 September 2010 Defense request for appropriate security clearances for the defense
team. See id; 17 June 2011 Excludable Delay Memorandum, Attachment 35 (identifying these
exact same bases for delay); 12 May 201] Excludable Delay Memorandum, Attachment 32
(same). The only difference in the basis for the delay of the 10 August 201 1 excludable delay
memorandum and the two prior excludable delay memoranda is that the Govemment?s fourth
request for delay was substituted for the earlier requests for delay that were identi?ed in the May
and June excludable delay memoranda. See 10 August 2011 Excludable Delay Memorandum,
Attachment 42. The Convening Authority gave no explanation of the reasons that justi?ed
granting yet another delay based on the same Government argument that had been repeated every
month since April 2011. Additionally, the Convening Authority did not even attempt to address
the Defense?s argument raised in the 25 July 2011 opposition memorandum that the Government
had had over a year to complete the classi?cation review process and had still not managed to
get its affairs in order. At the end of the excludable delay memorandum, the Convening
Authority acknowledged the Defense?s 13 January 2011 speedy trial request and 25 July 2011
renewed speedy trial request. Id

35. The Government made its ?fth request for delay of the Article 32 hearing on 25 August
2011. See 25 August 2011 Government Request for Delay, Attachment 43. The basis for the
requested delay was the same as before: the Government still, over a year and two months after
PFC Manning was placed into pretrial con?nement, needed time to obtain the authority from the
OCAs to disclose evidence and information to the Defense. See id. at l. The Government once
again represented that it was ?continuing? to work with the OCAs without providing any detail
on where the classi?cation review process stood and why it still remained incomplete after more
than a year. See id. While the Government was quick to point out that it had already disclosed
over 20,000 pages of documents to the defense, see id. at 2, it omitted the fact that most of these
documents were irrelevant, duplicative or both. The Government asserted in conclusory fashion
that it had ?actively and diligently worked to resolve all outstanding issues to ensure the timely
release of all possible information to the defense so their ability to represent and potentially
defend their client will be in no way impaired.? Id. However, the Government chose to not
respond to the Defense?s concerns identi?ed in the 25 July 2011 opposition memorandum that
the Government had still not completed its classi?cation review process after over a year a?er
the charges had been preferred and that the Government had provided a patently inadequate
explanation for its numerous requests for delay.

36. Two days later, the Defense opposed the Govemment?s request for delay, reiterating its
position that any additional delay should not be excluded under R.C.M. 707(c) but should rather
be credited to the Government for speedy trial purposes. See 27 August 2011 Email from Mr.
Coombs to COL Coffman Opposing the Government?s Request for Delay, Attachment 44.

37. On 29 August 2011, the Convening Authority approved the Government?s ?fth request for
delay of the Article 32. See 29 August 2011 Memorandum Approving Government Request for
Delay, Attachment 45. The memorandum stated that ?[t]he period between 22 April 2012 and

25942

the restart of the Article 32 Investigation is excludable delay under RCM 707(c). The
prosecution is required to provide me an update no later than 23 September 2011.? Id. This
memorandum was quite plainly a cut-and-paste job, identical to the 5 July 2011 and 26 July 2011
approval memoranda in all respects save the updated dates. See id.; 26 July 2011 Memorandum
Approving Government Request for Delay, Attachment 5 July 2011 Memorandum
Approving Government Request for Delay, Attachment 38. Like the prior memoranda, the 29
August 2011 memorandum did not address the Defense?s concerns regarding the delay of over a
year that had already ensued in the classi?cation review process and the inadequacy of the
Government?s explanations. The memorandum did not state any new reasons why the request
for delay had been granted.

38. The sixth Government delay request since April 2011 was made on 26 September 2011,
three days after the Convening Authority?s deadline for a Government update on the status of the
classi?cation review process. See 26 September 2011 Government Request for Delay,
Attachment 46; 29 August 2011 Memorandum Approving the Government?s Request for Delay,
Attachment 45 (ordering the Government to provide the Convening Authority with an update
?no later than 23 September 2011?). As always, the reason for the Government request for delay
was the ongoing classi?cation review process. See id. at 1. Once again, the Government
explained, without elaboration, that it was ?continuing? to work with the relevant OCAs. Id.

The Government did not explain why the classi?cation review process has still not run its course,
over a year and two months after PFC Manning was placed into pretrial con?nement and charges
were preferred.

39. The Defense opposed the Government?s sixth request for delay on 27 September 2011. See
27 September 2011 Email from Mr. Coombs to COL Coffman Opposing the Government?s
Request for Delay, Attachment 47. The Defense reiterated its position that any delay should not
be excluded under R.C.M. 707(c), but rather should be credited to the Government for speedy
trial purposes. Id.

40. The Convening Authority approved the Government?s sixth request for delay of the Article
32 hearing on 28 September 2011. See 28 September 2011 Memorandum Approving
Government Request for Delay, Attachment 48. The Convening Authority excluded ?[t]he
period between 22 April 2011 and the restart of the Article 32 Investigation [a]s excludable delay
under RCM Id. This memorandum was a virtual carbon copy of the 5 July 2011, 26
July 201 1, and 29 August 2011 memoranda approving the various prior Government requests for
delay; only the dates had been changed. See id; 29 August 2011 Memorandum Approving
Government Request for Delay, Attachment 45; 26 July 2011 Memorandum Approving
Government Request for Delay, Attachment 41; 5 July 2011 Memorandum Approving
Government Request for Delay, Attachment 38. The Convening Authority offered no new
reasons for approving this sixth request for delay, and it did not respond to the Defense?s
concerns articulated in the 25 July 2011 memorandum opposing the Government?s July request
for delay, which had been reiterated on several occasions. The Convening Authority also did not
mention that the Government had disobeyed the order to provide an update no later than 23
September 201 1.

10

25943

41. The Convening Authority issued another excludable delay memorandum on 14 October
2011, in which the period from 15 September 2011 to 14 October 201 1 was found to be
excludable delay under R.C.M. 707(c). See 14 October 201 1 Excludable Delay Memorandum,
Attachment 49. The basis for the excludable delay identi?ed in the 14 October 2011
memorandum was virtually identical to the 10 August 2011, 17 June 2011, and 12 May 201
excludable delay memoranda. See id; 10 August 2011 Excludable Delay Memorandum,
Attachment 42; 17 June 2011 Excludable Delay Memorandum, Attachment 35; 12 May 201
Excludable Delay Memorandum, Attachment 32. The only thing that made the 14 October 201 1
excludable delay memorandum different from any of these prior memoranda was the substitution
of the Govemment?s sixth request for delay in place of the particular Government request delay
that was identi?ed in each prior memorandum. The Convening Authority once again gave no
reasons why delaying the Article 32 for the completion of the classi?cation review process was
still reasonable, given the year and three months that had passed since the preferral of charges.
The Convening Authority also included the stock line that had been repeated numerous times
before: acknowledge and reviewed the defense request for speedy trial, dated January 13 2011
(enclosed), and the renewed request for speedy trial, dated 25 July 2011 (enclosed).? 14 October
201 Excludable Delay Memorandum, Attachment 49 (parentheticals in original).

42. The Government made its seventh request to delay the Article 32 hearing on 25 October
2011. See 25 October 2011 Government Request for Delay, Attachment 50. The reasons for the
requested delay were the same as ever: the Government still needed more time to obtain
authority to release evidence and information to the defense. See id at 1. The Government
assured the Convening Authority that it was still ?continuing? to work with the OCAs. Id.
However, the Government remained as vague as it had been throughout this protracted process,
not specifying exactly what had already been done or exactly what remained to be done.

43. The Defense opposed this request for delay on the same day. See 25 October 2011 Email
from Mr. Coombs to COL Coffman Opposing Government Request for Delay, Attachment 51.
In this email, the Defense repeated its previous position that any additional delay should not be
excluded under R.C.M. 707(c) but should be credited to the Government for speedy trial
purposes. Id.

44. The Convening Authority approved the Govermnent?s seventh request for delay on 27
October 2011, excluding the period from 22 April 2011 until the restart of the Article 32 hearing
under R.C.M. 707(c). See 27 October 2011 Memorandum Approving Government Request for
Delay, Attachment 52. When compared to the various prior memoranda approving the numerous
Government request for delay, the October memorandum had simply updated the stated dates.
See id. No new reasons for the delay were discussed, and the Convening Authority did not
explain why this additional exclusion of time was still reasonable, given the year-plus period of
time that had already gone by in which the Government was unable to complete the classi?cation
review process.

45. Beginning on 24 October 2011, the long-awaited OCA classi?cation reviews began to
trickle in. The Government provided the Defense with the DISA classi?cation review on 24
October 2011. That classi?cation review a one page document was completed on 6 June
2011. The Government offered no explanation for the four?and-a-half month delay between the

11



25944

completion of the classi?cation review and its disclosure to the Defense. The Government
provided the three-page Apache Video classi?cation review, which was completed on 26 August
2010, to the Defense on 4 November 2011. The Defense received no explanation for the delay
of over a year and two months between the completion of this classi?cation review and its
disclosure to the Defense. The Government also provided a 28-page Other Government Agency
classi?cation review to the Defense on 4 November 2011. The Government provided a few
more classi?cation reviews to the Defense on 8 November 2011. This round of disclosure
included a three-page CENTCOM PowerPoint classi?cation review that was completed on 21
February 2011, a 24-page CENTCOM classi?cation review that was completed on 21 October
2011, a four-page CYBERCOM classi?cation review that was completed on 21 July 2011, and a
51-page Department of State classi?cation review that was completed on 30 October 2011. The
Government did not explain the reason for the eight-plus month delay between the completion of
the CENTCOM PowerPoint classi?cation review and its disclosure or the reason for the three-
plus month delay between the completion of the CYBERCOM classi?cation review and its
disclosure. Additionally, on 17 November 2011, the Government provided the Defense with the
four-page GTMO classi?cation review, completed on 4 November 2011. Finally, the Defense
was provided with two classi?cation reviews on 12 December 2011: a three-page Other
Government Agency classi?cation review and a 12-page Other Government Agency
classi?cation review.

46. On 16 November 2011, the Convening Authority issued yet another excludable delay
memorandum. See 16 November 2011 Excludable Delay Memorandum, Attachment 53. This
memorandum excluded the period from 14 October 2011 to 16 November 2011 under R.C.M.
707(c). Id As had been the case for the last several excludable delay memoranda, the
articulated basis for this most recent delay was the following: the OCA reviews of classi?ed
information; OCA consent to disclose classi?ed information; the 26 August 2010 Defense
request for the results of the Government?s classi?cation reviews (made a year and two months
prior to the latest Government request for delay); and the Government?s seventh request for
delay. See id. As usual, the Convening Authority failed to articulate any new reasons that made
this delay reasonable. Finally, the Convening Authority once again repeated its familiar refrain
that it had ?acknowledge[d] and reviewed? the Defense?s 13 January 2011 and 25 July 2011
speedy trial requests. Id.

47. That same day, the Government requested to restart the Article 32 investigation. See 16
November 2011 Government Request to Restart Article 32 Investigation, Attachment 54. At
?rst blush, it seemed that the Government was ?nally ready to proceed to the Article 32 hearing
a year and a half after PFC Manning was ?rst placed in pretrial con?nement. In fact, in the
second sentence of its request, the Government related that ?[t]he prosecution is prepared to
proceed and, by 1 December 2011, should receive all approvals and classi?cation reviews
necessary to proceed.? Id. at 1. First appearances were deceiving, however, as the
Govemment?s self-titled request to restart the Article 32 investigation was, in actuality, a poorly-
concealed eighth request for delay of the Article 32 investigation. Indeed, in the very next
sentence of its so-called ?Request to Restart Article 32 Investigation,? the Government requested
that ?the period from the date of this memorandum to 16 December 2011 be approved as
excludable delay.? Id The Government represented that this further 30 day period of delay, on
top of the year and a half in which the Government had ostensibly been processing the case after

12

25945

PFC Manning was in pretrial con?nement, was necessary for two reasons. See id. at 2. First, the
Government was still working with an OCA to obtain one ?nal classi?cation review. Id.
Second, the Government explained that the command required 30 days to execute OPLAN
BRAVO, a prerequisite to the Article 32 hearing. Id.

48. Later that afternoon, the Defense opposed the Govemment?s eighth request for delay. See
16 November 2011 Email from Mr. Coombs to COL Coffman Opposing Government Request
for Delay, Attachment 55. The Defense email explained that Mr. Coombs had sent an email to
then-CPT Fein on Monday, 14 November 2011, in which Mr. Coombs requested that the
Government begin its OPLAN BRAVO preparations so that the Article 32 hearing could
commence on 12 December 2011. Id. The email went on to explain that based on the
Govemment?s most recent request for delay, it appeared that the Government had done nothing
from 14 November 2011 to 16 November 2011. Id. The Defense pointed out that the
Government failed to provide the Convening Authority ?with any justi?cation for the arbitrary
30-day-requirement in order to complete its OPLAN Id. The Defense then requested
that the Convening Authority order the Article 32 to commence on 12 December 2011, thereby
giving the Government close to its requested 30 days to execute its OPLAN BRAVO while at the
same time ensuring that the Article 32 hearing would be completed prior to the holiday period in
order to avoid any issues with obtaining needed witnesses. Id Finally, the Defense objected to
the Government?s request to exclude the time period of 16 November 2011 to 16 December
2011under R.C.M. 707(c) and requested instead that the delay be credited against the
Government for speedy trial purposes. Id.

49. Later that same day, the Convening Authority approved the Government?s eighth request for
delay, excluding the time period from 22 April 2011 to 16 December 2011 under R.C.M. 707(c).
See 16 November 2011 Memorandum Approving Government Request for Delay, Attachment
56. Even when judged in comparison to the bare-bones, conclusory ?rationale? given by the
Convening Authority in the numerous prior excludable delay memoranda and memoranda
approving the Government requests for delay, this 16 November 2011 memorandum stands
apart. Not only does it not offer a single reason explaining the Convening Authority?s decision
to grant an eighth Government request for delay, it does not even attempt the pretense of offering
reasons. The Convening Authority?s decisional process, to the extent that it can be gleaned from
this memorandum, is captured in full in the following two sentences: reviewed both the
prosecution?s request and its enclosures and the defense?s response. 2. This request is:
(signature) approved.? Id That?s it. That is the extent of the Convening Authority?s articulation
of its reasons why this requested delay was reasonable. There was no such articulation or even
an attempt at such an articulation. Capping a busy day in an otherwise stagnant prosecution, the
Convening Authority issued Special Instructions to the Article 32 IO on 16 November 2011. See
Special Instructions for Investigation under Article 32, Attachment 57. These instructions
required that all approvals or denials of requests for delay under R.C.M. 707(c) be in writing. Id.
at 3.

50. Meanwhile, the Government unloaded a barrage of discovery and forensic evidence in the
month or so before commencement of the Article 32 hearing, despite the fact the case had been
ongoing for over a year and a half at that time. The sheer volume and lack of organization of this
discovery made it virtually impossible for the Defense to sort through the material and organize

13

25946

it in any coherent manner before the Article 32 hearing took place. Therefore, the Defense was
deprived of the ability to use this evidence at the Article 32 hearing as a result of the
Government?s eleventh hour disclosure.3

51. The Article 32 hearing was conducted from 16 December 2011 through 22 December 2011.
On 3 January 2012, the Government asked the Article 32 10 to ?exclude, as a reasonable delay,
anytime between 22 December 2011 and 3 January 2012 that you did not work on the Article 32
investigation based on the federal holidays and weekends.? See 4 January 2012 Email from LTC
Almanza to then-CPT Fein, Attachment 58. The next day, the Article 32 IO excluded as
reasonable delay the days between 23 December 2011 and 3 January 2012 when he did not work
on the Article 32 investigation. See id LTC Almanza did not specify how many days were
being excluded. Reference to LTC Almanza?s chronology makes clear that he did no work on
the Article 32 investigation between the period of 24 December 2011 and 2 January 2012, but
these dates are nowhere to be seen in the email approving the Govemment?s delay request. See
Chronology of Article 32 10, Attachment 59, at 4 (listing activity on 23 December 201 land 3
January 2012 but listing no activity between 24 December 2011 and 2 January 2012).
Additionally, LTC Almanza did not wait to hear from the Defense before granting this request
for excludable delay. LTC Almanza gave no reasons or explanation for the delay. See id.
Indeed, the entire exclusion decision, rendered via email, is contained in the following sentence:
will exclude as a reasonable delay the days between 23 December 201 1 and 3 January 2012
when I did not work on the Article 32 Investigation.? Id. Moreover, LTC Almanza did not state
the legal authority, whether under R.C.M. 707(c), the discussion to that section, or case law, that
allows for excluding from the R.C.M. 707 speedy trial clock federal holidays and weekends in
which the Article 32 10 did not work on the case. Meanwhile, PFC Manning remained in
pretrial con?nement for all of December 2011 and January 2012, including on federal holidays
and weekends.

52. The Convening Authority issued its last excludable delay memorandum on 3 January 2012.
See 3 January 2012 Excludable Delay Memorandum, Attachment 60. This memorandum
excluded ?[t]he period from 16 November 2011 up to and including 15 December 2011? as
excludable delay under R.C.M. 707(c). Id. Consistent with its prior excludable delay
memoranda, the Convening Authority identi?ed a familiar basis for delay: the OCA reviews of
classi?ed information; OCA consent to disclose classi?ed information; the 26 August 2010
Defense request for results of the Government?s classi?cation reviews; and the Govemment?s
eighth request for delay. See id. As usual, the Convening Authority stated no reasons why the
various requests and classi?cation reviews that had been cited in every excludable delay
memorandum for over a year made this particular excluded period a reasonable one. Finally, the
Convening Authority once again ?acknowledge[d] and reviewed? the two Defense speedy trial
requests. Id.

53. On 11 January 2012, LTC Almanza submitted his Article 32 report and recommendations.
A little over three weeks later, the GCMCA referred the charges to this Court on 3 February

3 The Govemment?s failure to provide timely discovery did not necessitate a delay in the Article 32 hearing due to
the Defense?s overall strategy at that point to use the Article 32 as a discovery tool and to highlight the nature of the
Govemment?s overcharging of the case. See R.C.M. 405(a) discussion (?The investigation also serves as a means of
discovery?).

14



2012. That same day the Government submitted an Electronic Docket Noti?cation requesting a

trial date of 3 April 2012. Three days later, the Defense submitted an Electronic Docket

Noti?cation of its own requesting a trial date of 30 April 2012 due to fellow defense counsel

being in ILE and other con?icts.

54. Following the initial 802 conference on 8 February 2012, PFC Manning was arraigned on 23
February 2012, 635 days after he was first placed into pretrial con?nement.

3. Pre-Arraignment Discovery Delay

55. In addition to making eight consecutive requests that the Article 32 hearing be delayed, the
Government was also quite lethargic in its pre-arraigmnent discovery conduct. The Defense
made numerous requests for discovery in the 635 days between PFC Manning was placed into
pretrial con?nement and his arraignment. The Government?s responses to these requests were
untimely and woefully inadequate.

56. On 29 October 2010, the Defense made its ?rst discovery request. When the Government

did not timely respond, the Defense made subsequent discovery requests on 15 November 2010,
8 December 2010, 10 January 2011, 19 January 2011, and 16 February 2011.

57. Instead of responding in writing to these requests, the Government would just send random,
unorganized discovery on compact discs without indicating how, if at all, the provided discovery
was responsive to the Defense?s six discovery requests. Most of the disclosed material was
unnecessarily duplicative. The Government responses, both in their volume and their lack of
organization, made any effort by the Defense to inspect the information unnecessarily time-
consuming.

58. The Government ?nally responded in writing to the Defense?s six discovery requests on 12
April 2011, nearly six months after the ?rst discovery request. This written response was plainly
inadequate, merely offering one of the following responses for each of by the Defense discovery
requests: the United States has disclosed a portion of the requested material and understands its
continuing obligation to disclose; the United States has disclosed all of the requested material in
its possession and understands its continuing obligation disclose; the United States does not have
authority to disclose this classi?ed information; or the United States will not provide the
information because the Defense has failed to provide any basis for the request.

59. Because of the gross inadequacy of the Government?s written response, the Defense made
its seventh discovery request on 13 May 2011. After the Government yet again failed to respond
in a timely fashion, the Defense made its eighth discovery request on 21 September 2011. In the
21 September 2011 discovery request, the Defense requested that the Government preserve all of
the hard drives from the Tactical Sensitive Compartmented Information Facility (T-SCIF) and
the Tactical Operations Center (TOC) of Headquarters and Headquarters Company, 2nd Brigade
Combat Team, 10th Mountain Division, Forward Operating Base Hammer, Iraq. The Defense
also made subsequent discovery requests on 13 October 2011, 15 November 2011, and 16
November 2011. The Government did not adequately respond to any of these discovery
requests.

15



25948

60. On 1 December 2011, the Defense made a motion to compel production of evidence at the
Article 32 hearing. This motion was denied by the Article 32 10 two weeks later, the day before
the Article 32 hearing began.

61. On 20 January 2012, the Defense made yet another discovery request. A week later, the
Government responded to all outstanding discovery requests. This response was wholly
inadequate. Then, on 31 January 2012, the Government sent the Defense a blanket response to
the Defense request for discovery of any and all damage assessments, denying the requested
discovery because the Defense had failed to provide any basis for its request.

62. Finally, on 16 February 2012, the Defense ?led its ?rst motion to compel discovery. See
Appellate Exhibit VII. The motion explained that, although the Government had provided up to
that date approximately 78,148 pages of unclassi?ed discovery to the Defense and approximately
333,194 pages of what the Government considers classi?ed discovery, the vast majority of this
discovery was not responsive to the speci?c items repeatedly requested by the Defense.

4. Periods of Apparent Government Inactivity

63. In addition to the foregoing chronology, there have been several periods of apparent
Government inactivity in the processing of this case. From 31 May 2010, when PFC Manning
was transferred to Theater Field Con?nement Facility, Camp Arifjan, Kuwait, until 5 July 2010,
when the original charges were preferred a period of 36 days there was no apparent
Government activity. See Attachment 1. In addition, the Government was evidently inactive for
a period of 17 days from 13 July 2010 until 30 July 2010, when PFC Manning was transferred to
Quantico. Id. Similarly, there was also no apparent Government activity for a period of 20 days
from 23 April 2011, the day after the R.C.M. 706 Board?s submission of its report, through 12
May 2011, the date of one of the Convening Authority?s excludable delay memoranda. Id.
Likewise, there appears to have been no Government activity for a period of 36 days from 13
May 2011, the day after the Convening Authority?s May excludable delay memorandum, to 17
June 2011, the date of the Convening Authority?s June excludable delay memorandum. Id.

64. The 18-day period from 18 June 2011, the day after the Convening Authority?s June
excludable delay memorandum, until 5 July 2011, the date of the Convening Authority?s
approval of the Govemment?s third request for delay of the Article 32 hearing, appears to be
equally devoid of any Government activity. Id. Additionally, there was no apparent
Government activity for a period of 21 days from 6 July 2011, the day after the Convening
Authority?s approval of the Government?s third request for delay, and 26 July 2011, when the
Convening Authority approved the Government?s fourth request for delay. Id. Likewise, there
appears to have been no Government activity in the 34-day period between the day after
Convening Authority?s approval of the Government?s fourth request for delay on 26 July 2011
and the Convening Authority?s approval of the Govemment?s ?fth request for delay on 29
August 2011. Id.

65. The Government was evidently equally inactive in the 30-day period from 30 August 2011,
the day after the Convening Authority?s approval of the Govemment?s ?fth request for delay,

16



25949

through 28 September 2011, when the Convening Authority approved the Govemment?s sixth
request for delay. Id. Similarly, for a period of 29 days from 29 September 2011, the day after
the Convening Authority?s approval of the Govemment?s sixth request for delay, until 27
October 2011, when the Convening Authority approved the Govemment?s seventh request for
delay, no apparent Government activity occurred. Id. Additionally, from the day after the
Convening Authority?s approval of the Govemment?s seventh request for delay until 15
November 2011 a period of 19 days the Government was apparently inactive. Id. In
addition, the Government appears to have been inactive for a period of 29 days from 17
November 2011 until 15 December 2011. Id. Also, for a period of 12 days after the conclusion
of the Article 32 hearing on 22 December 2011 until 3 January 2012, it appears as though the
Government did nothing to move the case forward. Id. Finally, the Government was apparently
inactive for a period of 22 days from 12 January 2012, the day after LTC Almanza submitted his
Article 32 report and recommendations, and 2 February 2012, the day before the charges were
referred. Id.

66. In total, from the commencement of PFC Manning?s pretrial con?nement until PFC
Manning?s arraignment on 23 February 2012, there were 323 days in which no apparent
Government activity has occurred.

B. Post-Arraignment Delay

67. By the time PFC Manning was arraigned on 23 February 2012, the Government?s extreme
foot?dragging had thoroughly pervaded the case. Things had gotten so bad that on 25 February
2012, the Defense thought it necessary to ?le a preemptive request with this Court to prevent
further Government delay tactics. Following the Defense?s ?ling of its motion for a bill of
particulars, the Government took three weeks to ?le its response, based in part on email glitches
experienced by the Government. Not wanting to compound the delay surrounding this motion
any further, the Defense requested the following from this Court:

Should you order that such particulars must be given to the Defense, the
Government will likely request an extension of time to provide those particulars.
Given that the Government will have over three weeks to address this issue, the
Defense would request that you direct the Government to be immediately
prepared to release the particulars if you rule in favor of the Defense. In other
words, if the Court deems that particulars should be provided, the Government
should not have any additional time to provide them . . . . The particulars sought
by the Defense do not require the Government to coordinate with multiple
external agencies, search ?les, or engage in complex legal research. Rather, the
particulars simply ?esh out the charges that the Government has preferred against
my client, and that it has been preparing to prosecute for the past 18 months.
While I realize this request may be unusual, the Defense believes that the
Government had already received a windfall owing to the email situation; it
should not be able to continue to press for extensions of responses to
straightforward motions. Any such extension would require the trial calendar to
be pushed further out, thereby affecting my client?s right to a speedy trial.

17

25950

27 February 2012 Email from Mr. Coombs to COL Lind, MI, Attachment 61.

68. Additionally, after the Government ?led its Response to the Defense Motion to Compel, the
Defense and this Court became aware that the Government profoundly misunderstood its basic
discovery obligations. As the Defense pointed out in its Reply Motion, the Government
Response evidenced that the Government was laboring under three critical misunderstandings of
its discovery obligations in a classi?ed evidence case. See Appellate Exhibit XXVI, at 1-2, 7.
First, the Government mistakenly asserted that R.C.M. 703, and not R.C.M. 701, governed its
discovery obligations. See id at 1-2. It believed that the Brady standard governing its
mandatory disclosure obligations was narrowly limited to the standard articulated in the Supreme
Court case of Brady v. Maryland, 373 US. 83 (1963 and not that enshrined in R.C.M.
701(a)(6). See id. at 2. Second, the Government mistakenly believed that Brady only required it
to turn over evidence material to the merits of the case and that it did not require the Government
to turn over evidence material for sentencing purposes. Id Finally, the Government erroneously
interpreted Military Rule of Evidence (M.R.E.) 505 as giving the Government, as opposed to the
military judge, the authority to be the arbiter of what should and should not be disclosed after
balancing the interests of the accused against the national security concerns in a classi?ed
evidence case. Id. at 7.

69. Based on the Government?s grave ignorance of its discovery obligations, the Defense moved
to dismiss all charges on 15 March 2012. See Appellate Exhibit The motion explained
that for nearly two years the Government had been representing that it has been diligently
searching for Brady material, and yet the Government had just tipped its hand that it did not
come close to comprehending the scope of its Brady obligations. Id. at 1-2. The Defense
pointed out that if the Government was forced to start its Brady search anew, as it would be
required to do if the charges were not dismissed, the proceeding would be delayed another two
years. Id. Since PFC Marming had already spent a total of 656 days in pretrial con?nement as
of the date of the Defense Motion to Dismiss For Discovery Violations, the Defense argued that
any additional delay to re-conduct Brady searches from scratch would amount to a per se
violation of PFC Manning?s right to a speedy trial. Id at 4. The motion also pointed out that it
was impossible to tell how much Brady information had been lost or destroyed as a result of the
Govemment?s use of an incorrect Brady standard for nearly two years. Id. at 5.

70. Lest there be any doubt about the Govemment?s interpretation of the discovery rules, the
Government clari?ed its position in an email from then?CPT Fein to this Court, dated 22 March
2012. In that email, the Government stated its position was that R.C.M. 701 does not apply to
classi?ed evidence discovery. The email also stated that the Government had, and would
continue to, consult the provisions of MRE 505 to determine what information was discoverable
and what information was not discoverable, indicating that the Government viewed itself as the
one tasked with balancing PFC Manning?s right to a fair trial with the national security concerns
raised by the classi?ed evidence. See Appellate Exhibit at 8-9.

71. The next day, this Court issued its ruling on the Defense Motion to Compel. See Appellate
Exhibit In this ruling, this Court explained that ?[t]he classi?ed information privilege

under MRE 505 does not negate the Govemment?s duty to disclose information favorable to the
defense and material to punishment under Brady.? Id. at 8. This Court further explained that

18



25951

classi?ed discovery detrimental to national security is at issue and the government does not
wish to disclose the classi?ed information in part or in whole to the defense, the government
must claim a privilege under MRE Id at 10. Speaking more generally about the
Govemment?s discovery obligations, the Court noted that ?[t]rial counsel have a due diligence
duty to review the ?les of others acting on the Government?s behalf in the case for favorable
evidence material to guilt or punishment.? Id. at 8. Finally, this Court ordered the Government
to ?immediately:? begin the process of producing the requested damage assessments; and (ii)
cause an inspection of the 14 hard drives of computers from the T-SCIF and the TOC of
Headquarters and Headquarters Company, 2nd Brigade Combat Team, 10th Mountain Division,
Forward Operating Base Hammer, Iraq and provide the results of those inspections no later than
20 April 2012. Id. at 12 (emphasis in original).

72. On 16 April 2012, then-CPT Fein sent an email to Mr. Coombs explaining that, of the 14
hard drives referenced in the Defense?s 21 September 2011 Discovery Request and the Court?s
23 March 2012 ruling on the Defense Motion to Compel, 2 drives were completely inoperable, 7
drives were wiped, and 1 drive was partially wiped. See Appellate Exhibit at 15-16. The
email did not state when the 8 drives were wiped.

73. The next day, the Defense ?led its Reply Motion to Dismiss for Discovery Violations. The
motion urged that dismissal was a proper remedy for the discovery violations because there was
ample evidence to support the contention that the discovery violations were willful, as the

Government seemed to be resisting handing over exculpatory evidence at every turn. Id. at 9-10.

The motion reiterated the argument raised in the Defense Motion to Dismiss for Discovery
Violations that if the charges were not dismissed the Government would have to conduct its
Brady searches anew, and the resultant delay would surely violate PFC Manning?s speedy trial
rights. Id. at 15. Additionally, the Defense took issue with the Govemment?s need to delay the
proceedings until 18 May 2012 to decide whether to assert a privilege with respect to any
classi?ed information. Id at 12 n.4. The Defense pointed out that the Government claimed that
it needed an extra four months after referral of charges in which to ?nd out whether the equity
holders would assert a privilege. Id. Finally, the Defense expressed concern about the
destruction of several of the 14 hard drives, noting that the CID requested that the evidence be
preserved in September 2010, and the Defense also ?led a preservation request in September
2011. Id at 15-16.

74. On 25 April 2012, this Court issued a ruling on the Defense Motion to Dismiss for
Discovery Violations. See Appellate Exhibit In that ruling, this Court con?rmed that
the Government had indeed been operating under a grave misunderstanding of its discovery
obligations for some time:

From the 8 March 2012 Government response to Defense Motion to Compel
Discovery and its email of 22 March 2012, the Court ?nds that the Government
believed RCM 701 did not govern disclosure of classi?ed information for
discovery where no privilege has been invoked under MRE 505. This was an
incorrect belief. The Court ?nds that the Government properly understood its
obligation to search for exculpatory Brady material, however, the Government

19



disputed that it was obligated to disclose classi?ed Brady information that was
material to punishment onlyMay 2012, the Defense ?led a second motion to compel. See Appellate Exhibit
XCVI. Based on the meager 12 pages of Brady material that the Government had provided the
Defense as of that date, 713 days after PFC Manning was ?rst placed in pretrial con?nement and
676 days after the original charges were preferred, the Defense requested this Court to require
the Government to state on the record the steps it had taken in ful?lling its Brady obligations.
See id. at 10. The Defense related to this Court that the Government had sent out a memo on 29
July 2011, over a year after PFC Manning was placed into pretrial con?nement and charges were
preferred, to Headquarters, Department of the Army (HQDA) requesting it to task Principal
Of?cials to search for, and preserve, any discoverable information. Id. at 13-14. Moreover, a 17
April 2012 HQDA memorandum con?rmed that no action had yet been taken on the 29 July
2011 memorandum. Almost two full years after PFC Manning?s arrest, the Government had not
even been able to complete a Brady search of ?les in the Department of the Army. Id

76. On 30 May 2012, the Defense ?led a Supplement Motion to Compel 2. See Appellate
Exhibit XCIX. In this Supplement, the Defense explained that at the 30 May 2012 802
telephonic conference the Government admitted that it still had not reviewed Department of
State documents for which the Defense had made a discovery request in 2011. Id. at 2. The
Defense related its frustration that it had, two years after the Government had supposedly begun
its Brady search, only received 12 pages of unclassi?ed Brady material and was still waiting on
the bulk of the Brady material. Id. at 3-4. The Defense further pointed out in its Reply to the
Government?s Response to the Supplement Motion to Compel 2, dated 11 July 2012, that the
Government was still, over two years after the preferral of charges, continuing to search the
military?s own ?les for Brady material. See Appellate Exhibit CI, at 10.

77. On 8 June 2012, following testimony by Department of State witnesses at a motions hearing,
this Court ordered the prosecution to begin the process of searching for and inspecting the

following Department of State records:

(1) Written assessments produced by the Chiefs of Mission used to formulate a portion of the
draft damage assessment completed in August of 201 1;

(2) Written Situational Reports produced by the WikiLeaks Working Group between roughly 28
November 2010 and 17 December 2010;

(3) Written minutes and agendas of meetings by the Mitigation Team;
(4) Information Memorandum for the Secretary of State produced by the

(5) A matrix produced by WPAR to track identi?ed individuals;

20

25953

(6) Formal guidance produced by WPAR and provided to all embassies, including authorized
actions for any identi?ed person at risk;

(7) Information collected by the Director of the Of?ce of Counter Intelligence and Consular
Support within the Department of State regarding any possible impact from the disclosure of
diplomatic cables; and

(8) Any prepared written statements for the Department?s reporting to Congress on 7 and 9
December 2010.

See Appellate Exhibit CXLII, at 1-2. On 9 July 2012, the Government completed its search and
inspection of these records. See id. at 2-4. The Government did not explain why it was unable to
conduct this search and inspection of these documents which only took 30 days during the
741 days that PFC Marming was in con?nement at the date of the 7 June 2012 motions hearing.
Additionally, despite the fact that the Government had completed its search for and inspection of
these documents in 30 days, it requested 45-60 days delay of any Court order to compel
production of those documents in order to allow the Government to decide whether to seek
limited disclosure or claim a privilege under M.R.E. 505. See id. at 6.

78. During this timeframe, the Government also disclosed that ONCIX had prepared a draft
damage assessment and that the FBI had prepared an impact statement looking into the apparent
damage caused by the alleged leaks. See Appellate Exhibit In support of its motion
for a due diligence statement, the Defense chronicled the open questions that existed in respect of
these particular items: Why didn?t the Government tell the Court about the ONCIX damage
assessment earlier? Why had the Government used the phrase has not completed an
interim or ?nal damage assessment?? When did the Government learn about the FBI impact
statement? The Government did not provide satisfactory answers to these questions.

79. On 25 June 2012, this Court ordered the Government to provide a due diligence statement to
the Court. See Appellate Exhibit at 2-3. Speci?cally, this Court ordered the

following:

By 25 July 2012, the Government will provide the Court with a statement of due
diligence, in the format attached, stating:

a. Steps the Government has taken to inquire about the existence of ?les
pertaining to PFC Manning from Government agencies/entities;

b. When these inquiries were made;

c. When the Government became aware of the existence of each ?le pertaining to
PFC Manning from Government agencies/entities;

d. What ?les the Government has searched for Brady/RCM 70l(a)(6) information
and when;

21

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e. What ?les the Government has searched for information material to the
preparation of the defense IAW RCM 701(a)(2) and when.

f. What information from the above ?les the Government has disclosed to the
Defense;

g. What ?les the Government has reviewed and found no discoverable
information;

h. What ?les the Government has decided not to disclose to the Defense,

i. What ?les the Government has identi?ed that have yet to be searched for
Brady/RCM 701(a)(6) and/or RCM 701(a)(2).

By 25 July 2012, the Government will provide a timeline and synopsis of the
inquiries and communications between the Government and ONCIX.

Id. at 2-3 (emphases in original). This Court further provided that the proceedings would not be
suspended because of the Govemment?s due diligence statement. Id. at 3.

80. The Government yet again requested more time to disclose all Brady material to the Defense
on 25 July 2012. See Appellate Exhibit 226, at 1. The Government explained that it was still
searching ?les for Brady material, and therefore could not make its 3 August 2012 deadline for
disclosure of all outstanding Brady material. Id. The Government related that it would also be
unable to obtain the necessary approvals from the requisite equity holders to disclose any Brady
material uncovered in its search by the 3 August 2012 deadline. Id. Therefore, the Government
requested that the deadline be pushed back to 14 September 2012, 840 days after PFC Manning
was ?rst placed into pretrial con?nement. See id.

81. To this date, much discovery is still up in the air. In an email from MAJ Fein to the Court
and the Defense on 14 September, MAJ Fein chronicled the numerous Government ?lings
pertaining to outstanding discovery issues:

1. Government Ex Parte RCM 701(g)(2) Motion for a DHS document. The motion and its
enclosures are being submitted via NIPR in a separate email. Attached to this email is a
redacted version for the defense.

2. Government MRE 505(g)(2) Motion for DOS Information. The motion and its
enclosures are being submitted via NIPR in this email. Two of the enclosures are being
submitted via NIPR in a separate email.

3. Government MRE 505(g)(2) Motion for CIA Information. The motion and its
enclosures are being submitted via SIPR and hand delivery on Monday.

4. Government Notice to the Court for Government MRE 505(g)(2) Motion for DOS and
CIA Information, which includes the unclassi?ed and redacted version of the CIA

22



25955

motion.
5. Government Notice to the Court for ODNI Information.

6. Government Supplemental Filing for MRE 505(g)(2) Filing for FBI Investigative File.
The supplement is attached. The classified enclosures are being submitted ex parte via
SIPR and hand delivery on Monday.

See 14 September 2012 Email from MAJ Fein to COL Lind, Attachment 67. These outstanding
issues will be resolved over the next few months, likely meaning that it will not be until
November 2012 that the Defense has all relevant discovery in its possession (over 900 days after
PFC Manning was placed in pretrial confinement).

82. Finally, the Defense?s previously articulated concern of the Government dumping evidence
on the Defense on the eve of trial or key motions materialized on 26 July 2012. That night, the
Government sent to the Defense 84 emails that it characterized as ?obviously material to the
preparation of the defense for Article 13 purposes.? 26 July 2012 Email from MAJ Fein to Mr.
Coombs, Attachment 62. The Defense Article 13 Motion was due the next day. At 12:54 a.m.
on 27 July 2012, the Defense relayed to this Court the quite literal last minute disclosure of these
emails:

MAJ Fein just notified the Defense of the existence of 60 emails that the
Government determined were material to the preparation of the defense for the
Article 13 motion which, as you know, is due tomorrow. At 2115, MAJ Fein sent
the Defense copies of the emails. The Defense cannot understand why it is
getting these emails the night before its motion is due. The Defense had
requested any documentation pertaining to PFC Manning's confinement while at

Quantico over a year and a half ago, in a discovery request dated 8 December
2010.

27 July 2012 Email from Mr. Coombs to COL Lind, MJ, Attachment 63.

83. MAJ Fein related that the Government ?received the emails with the original documents
approximately six months ago and prioritized their review for Giglio/Jencks material based on
potential witnesses.? 27 July 2012 Email from MAJ Fein to Mr. Coombs, Attachment 64.
However, MAJ Fein admitted that the Government had just started to review the emails:

On Wednesday [25 July 2012], 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 notified the defense
and sent the emails last night [Thursday July 26].

27 July 2012 Email from MAJ Fein to COL Lind, MJ, Attachment 65. MAJ Fein attempted to

minimize any effect that this eleventh hour disclosure would have on the Defense?s Article 13
Motion: ?the United States still sees no reason why the defense will not have adequate time to

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25956

prepare its Article 13 motion, and especially since this the majority of these emails appear to
only bolster the defense?s current argument, as proffered in the Article 13 witness list litigation.?
Id. The Defense then voiced its displeasure with the MAJ Fein?s remarks:

What matters is that 84 emails were dumped on the Defense the night before the
Article 13 motion was due, after I had already sent the Defense attachments and
just prior to leaving the country for family reasons.

The Government avoids addressing the two issues that I raised. First, I need
additional time to incorporate these emails into my motion. The Government
seems to suggest that the emails simply support the arguments that I was in the
process of already making, I was on the right track). However, these emails
do much more than simply support our argument. The emails change the basis of
the Defense?s argument. When does the Government propose that the Defense
incorporate these emails into our motion? Based upon the Govemment?s email it
would seem that it would have us do this today.

Second, due to the nature of these emails, the Defense believes that additional
witnesses will be needed for the motion. The question is not necessarily just
interviewing potential witnesses, but likely litigating with the Government over
whether the witnesses will be produced.

How the Government could have waited so long to look at these emails which
should have been produced as part of its discovery obligations is beyond me. The
fact that the Government is now trying to hold the Defense to a time line of today
when the need for a delay is due to their lack of diligence is unbelievable. The
Defense has repeated since referral its concern that information would be dumped
on us on the eve of trial. This is perfect example of the Defense?s concerns
coming to fruition.

27 July 2012 Email from Mr. Coombs to COL Lind, MJ, Attachment 66.

84. As a result of the incredible last minute disclosure and the disclosure of the existence of an
additional 1,294 emails within the Govemment?s possession, further delay has ensued. The
Article 13 motions hearing has been pushed back to 27 November 2012. The disclosure of
additional emails necessitated the ?ling of a supplemental Article 13 motion and a
supplementary witness list. The Defense ?led a motion to compel with respect to the 1,294
emails that the Government did not disclose. At that point, the Government ?voluntarily? turned
over approximately 600 more emails that were apparently material to the preparation of the
defense, with no explanation as to why these were not produced earlier. The Court then
reviewed the remaining 600 or so emails and determined that all but twelve were material to the
preparation of the defense. Of course, the needless delay in consideration of the Article 13
motion was, as always has been the case, occasioned by the Govemment?s lack of due diligence.

85. Currently, PFC Manning?s trial is scheduled to commence on 4 February 2013. As of that
date, PFC Manning will have spent 983 days in pretrial con?nement.

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25957


86. The Defense requests the following witnesses be produced for the purposes of this motion:
a. COL Carl Coffman, United States Forces-Afghanistan, carl.coffman@us.anny.mil;

b. SFC Monica Carlile, United States Anny Legal Services Agency (USALSA),
monica.carlile@us.anny.mil;

c. LTC Paul Almanza, paul.r.almanza@us.arrny.mil or paul.almanza@usdoj.gov;
d. Dr. Michael Sweda, Chief, Forensic Service, michael.sweda@us.army.mil;

e. Original Classi?cation Authorities (OCAs). The Defense requests the Government produce a
witness from each of the following OCAs: United States Central Command Joint
Task Force Guantanamo Department of State Of?ce of the Director of
National Intelligence Other Government Agency for Speci?cations 3 and 15 of Charge
Defense Information Systems Agency and United States Cyber Command
(CYBERCOM). See Appellate Exhibit 256.

f. The Defense requests a witness from each of the following organizations: Headquarters
Department of the Army Department of State (DOS) and Diplomatic Security Services
Federal Bureau of Investigation Department of Homeland Security Of?ce
of the National Counterintelligence Executive DIA, DISA, CENTCOM,
SOUTHCOM, Other Government Agency; and each of the previously
identi?ed 63 Agencies. See Appellate Exhibit 256.

LEGAL FRAMEWORK

87. There are several sources of a So1dier?s right to a speedy trial. See United States v.
Lazauskas, 62 M.J. 39, 41 (C.A.A.F. 2005); United States v. Cooper, 58 M.J. 54, 57 (C.A.A.F.
2003); United States v. Birge, 52 M.J. 209, 210-11 nn.3-4 (C.A.A.F. 1999). These sources
include, among others, the Sixth Amendment to the United States Constitution, Article 10, and
R.C.M. 707, under which PFC Manning moves this Court for speedy trial relief. See Lazauskas,
62 M.J. at 41; Cooper, 58 M.J. at 57; Birge, 52 M.J. at 210-11. The numerous speedy trial
sources complement one another, and together they serve several salutary purposes. As the
Court of Appeals for the Armed Forces explained in Mizgala:

Congress enacted various speedy trial provisions in the UCMJ to address
concerns about ?the length of time that a man will be placed in con?nement and
held there pending his trial?; to prevent an accused from ?languish[ing] in a jail
somewhere for a considerable length of time? awaiting trial or disposition of
charges; to protect the accused's rights to a speedy trial without sacrificing the

25

25958

ability to defend himself; to provide responsibility in the event that someone
unnecessarily delays a trial; and to establish speedy trial protections under the
UCMJ ?consistent with good procedure and justice.?

61 M.J. at 124 (citations omitted). Because the analysis under R.C.M. 707 is distinct from the
analysis under Article 10, the legal framework for each speedy trial provision is discussed
separately below.4

A. R.C.M. 707

88. Rule for Courts-Martial 707 ?was drafted not only to address an accused?s constitutional and
statutory speedy-trial rights but also to ?protect[ the command and societal interest in the
prompt administration of justice?? United States v. Thompson, 46 M.J. 472, 475 (C.A.A.F.
1997). To serve these ends, R.C.M. 707(a) sets forth a 120-day speedy trial clock: ?The accused
shall be brought to trial within 120 days after the earlier of: (1) [p]referral of charges; (2) [t]he
imposition of restraint under R.C.M. or (3) [e]ntry on active duty under R.C.M.
204.? R.C.M. As the then?Court of Military Appeals has remarked, ?[t]he duty to
proceed in these matters in a timely, ef?cient manner is imperative at all stages of the process,
from the ?rst minute of day 1 to the last minute of day 120.? United States v. Carlisle, 25 M.J.
426, 429 (C.M.A. 1988).

4 As explained in more detail below, see infra note 4, the same factors are analyzed under the Sixth?Amendment
analysis and the Article 10 analysis. Therefore, the remainder of this section discusses the legal framework of
R.C.M. 707 and Article 10 only. The legal framework for the Sixth Amendment analysis is covered in the
discussion of Article l0?s legal framework, infra.

5 R.C.M. 707(a)(2) de?nes ?imposition of restraint? by reference to R.C.M. That rule provides as
follows:

Pretrial restraint is moral or physical restraint on a person's liberty which is imposed before and
during disposition of offenses. Pretrial restraint may consist of conditions on liberty, restriction in
lieu of arrest, arrest, or con?nement.



(2) Restriction in lieu of arrest. Restriction in lieu of arrest is the restraint of a person by oral or
written orders directing the person to remain within speci?ed limits; a restricted person shall,
unless otherwise directed, perform full military duties while restricted.

(3) Arrest. Arrest is the restraint of a person by oral or written order not imposed as punishment,
directing the person to remain within speci?ed limits; a person in the status of arrest may not be
required to perform full military duties such as commanding or supervising personnel, serving as
guard, or bearing arms. The status of arrest automatically ends when the person is placed, by the
authority who ordered the arrest or a superior authority, on duty inconsistent with the status of
arrest, but this shall not prevent requiring the person arrested to do ordinary cleaning or policing,
or to take part in routine training and duties.

(4) Con?nement. Pretrial con?nement is physical restraint, imposed by order of competent
authority, depriving a person of freedom pending disposition of offenses.

R.C.M. (italics in original). Additionally, substance prevails over form under R.C.M. 304(a): ?The
actual nature of the restraint imposed, and not the characterization of it by the officer imposing it, will determine
whether it is technically an arrest or restriction in lieu of arrest.? R.C.M. 304(a) discussion.

26

25959

89. Subsection of R.C.M. 707 provides several rules on how the R.C.M. 707 speedy trial
clock operates. For instance, the day on which the triggering event under R.C.M. 707(a) occurs
whether it be the preferral of charges, the imposition of restraint, or entry on active duty is
not counted for purposes of the 120-day clock. R.C.M. 707(b)(l). Additionally, subsection
clari?es that an ?accused is brought to trial within the meaning of 707] at the time of
arraignment under R.C.M. 904.? 1d; see Cooper, 58 M.J. at 59 duty imposed on the
Government by R.C.M. 707 is to arraign an accused within 120 days of preferral of charges or
pretrial con?nement, or face dismissal of the United States v. Dory, 51 M.J. 464, 464
(C.A.A.F. 1999) (similar). Unlike the date on which the triggering event occurs, ?[t]he date on
which the accused is brought to trial arraigned] shall count? for purposes of the 120-day
speedy trial clock. R.C.M. 707(b)(l).

90. Subsection of R.C.M. 707 sets forth the standard and procedure for excluding periods of
delay from the R.C.M. 707 speedy trial clock. It provides in full as follows:

All periods of time during which appellate courts have issued stays in the
proceedings, or the accused is absent without authority, or the accused is
hospitalized due to incompetence, or is otherwise in the custody of the Attorney
General, shall be excluded when determining whether the period in subsection
of this rule has run. All other pretrial delays approved by a military judge or the
convening authority shall be similarly excluded.

(1) Procedure. Prior to referral, all requests for pretrial delay, together with
supporting reasons, will be submitted to the convening authority or, if authorized
under regulations prescribed by the Secretary concerned, to a military judge for
resolution. After referral, such requests for pretrial delay will be submitted to the
military judge for resolution.

R.C.M. 707(c) (italics in original). The discussion section to R.C.M. 707(c) makes clear that
only ?reasonable delay? may be excluded from the speedy trial clock: ?[t]he decision to grant or
deny a reasonable delay is a matter within the sole discretion of the convening authority or a
military judge.? R.C.M. 707(c) discussion (emphasis supplied). The discussion sets forth some
reasons that reasonable delay may be excluded:

This decision should be based on the facts and circumstances then and there
existing. Reasons to grant a delay might, for example, include the need for: time
to enable counsel to prepare for trial in complex cases; time to allow examination
into the mental capacity of the accused; time to process a member of the reserve
component to active duty for disciplinary action; time to complete other
proceedings related to the case; time requested by the defense; time to secure the
availability of the accused, substantial witnesses, or other evidence; time to obtain
appropriate security clearances for access to classi?ed information or time to
declassify evidence; or additional time for other good cause.

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25960

Id. The discussion section also provides that ?[p]retrial delays should not be granted ex parte,
and when practicable, the decision granting the delay, together with supporting reasons and the
dates covering the delay, should be reduced to writing.? Id.

91. In addition to the discussion section R.C.M. 707(c), case law demonstrates that any delay
excluded under R.C.M. 707(c) must be reasonable. See United States v. Savard, No. ACM
37346, 2010 WL 4068964, at *3 (A.F. Ct. Crim. App. Jan. 19, 2010) (unpub.) be
excludable the reason for the delay must be United States v. Melvin, No. ACM
37081, 2009 WL 613883, at *7 (A.F. Ct. Crim. App. March 4, 2009) (unpub.) (same); United
States v. Billquist, No. ACM 35003, 2008 WL 2259774, at *2 (A.F. Ct. Crim. App. May 30,
2008) (unpub.) (same); United States v. Brown, No. ACM 36607, 2008 WL 1956589, at *9 (A.F.
Ct. Crim. App. Apr. 23, 2008) (unpub.) (?As long as the length of the delay is reasonable and the
approving official did not abuse his discretion, it is excluded from the 120?day speedy trial
United States v. McDu?ie, 65 M.J. 631, 634 (A.F. Ct. Crim. App. 2007) (same); United
States v. Fujiwara, 64 M.J. 695, 699 (A.F. Ct. Crim. App. 2007) (sa1ne); United States v. Rowe,
No. ACM 34578, 2003 WL 828986, at *1 (A.F. Ct. Crim. App. Feb. 28, 2003) (unpub.)
decision to grant a delay under R.C.M. 707 is reviewed for abuse of discretion and
reasonableness?); United States v. Proctor, 58 M.J. 792, 795 (A.F. Ct. Crim. App. 2003) (same);
United States v. Weatherspoon, 39 M.J. 762, 766 (A.C.M.R. 1994) (same); United States v.
Hayes, 37 M.J. 769, 772 (A.C.M.R. 1993) (same). Additionally, the Government bears the
burden of proving the facts to support a conclusion that the challenged periods of excludable
delay were ?reasonable.? See R.C.M.

92. This Court reviews the Convening Authority?s decision to exclude a certain period of delay
under R.C.M. 707(c) under the abuse of discretion standard. See Lazauskas, 62 M.J. at 41-42
(?If the issue of speedy trial under R.C.M. 707 is raised before the military judge at trial, the
issue is not which party is responsible for the delay but whether the decision of the officer
granting the delay was an abuse of United States v. Anderson, 50 M.J. 447, 448
(C.A.A.F. 1999). As Judge Baker explained in Lazauskas, the Manual for Courts-Martial
envisions that, in order to survive abuse of discretion review, the Convening Authority must
make an independent determination that there was good cause for the delay that was excluded:

[T]he decision to grant must be reasonable based on the reasons, facts or
circumstances presented. Otherwise, such a grant would constitute an abuse of
discretion. This view ?nds support in the analysis in the Manual for Courts-
Martial, United States (2002 ed.) (MCM) contained in the non-binding discussion
accompanying R.C.M. 707(c) stating that ?Military judges and convening
authorities are required, under this subsection, to make an independent
determination as to whether there is in fact good cause for a pretrial delay, and to
grant such delays for only so long as is necessary under the circumstances.?
MCM, Analysis of the Rules for Courts-Martial (emphasis added).

62 M.J. at 45 (Baker, ., concurring) (emphasis in original); see Thompson, 46 M.J. at 474-75
(quoting this language from the MCM).

28



93. Subsection of R.C.M. 707 provides the remedy for a violation of R.C.M. 707?s speedy
trial clock: ?dismissal of the affected charges.? R.C.M. 707(d)(l). The dismissal can be with or
without prejudice. R.C.M. 707(d)(1). In determining which type of dismissal to order, R.C.M.
707(d) directs military judges to consider a variety of factors, including: ?the seriousness of the
offense; the facts and circumstances of the case that lead to dismissal; the impact of a re-
prosecution on the administration of justice; and any prejudice to the accused resulting from the
denial of a speedy trial.? 1d,; see United States v. Dooley, 61 M.J. 258, 259 n.6 (C.A.A.F. 2005)
(listing these factors); United States v. Bray, 52 M.J. 659, 663 (A.F. Ct. Crim. App. 2000)
(outlining this multi-factor framework and conducting an analysis under it). However, ?[t]he
charges must be dismissed with prejudice where the accused has been deprived of his or her
constitutional right to a speedy trial.? R.C.M. 707(d)(1).

B. Article 10

94. The constitutional right to speedy trial is a fundamental right of a military accused, protected
by both the Sixth Amendment and Article 10. Mizgala, 61 M.J. at 124; Cooper, 58 M.J. at 60.
Article 10 provides that ?[w]hen any person subject to this chapter is placed in arrest or
con?nement prior to trial, immediate steps shall be taken to inform him of the speci?c wrong of
which he is accused and to try him or to dismiss the charges and release him. 10 U.S.C. 810
(emphasis supplied). The protections of Article 10 become available after ?arrest or
con?nement,? as those terms are used in Article 10. 10 U.S.C. 810; see United States v.
Schuber, 70 M.J. 181,184 (C.A.A.F. 2011). Unlike R.C.M. 707, however, the protections of
Article 10 extend beyond the date of arraignment. Cooper, 58 M.J. at 59-60. Under Article 10,
?the Government must . . . move diligently to trial and the entire period up to trying the accused
will be reviewed for reasonable diligence on the part of the Government.? Id. at 60.

95. Military courts have interpreted the ?immediate steps? mandate of Article 10 as requiring
?reasonable diligence.? See Schuber, 70 M.J. at 188; United States v. Thompson, 68 M.J. 308,
312 (C.A.A.F. 2010); United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007); Mizgala, 61
M.J. at 127; Cooper, 58 M.J. at 58; United States v. Kossman, 38 M.J. 258, 262 (C.M.A. 1993).
Article 10 does ?not demand constant motion, but reasonable diligence in bringing the charges to
trial.? Cossio, 64 M.J. at 256; see Thompson, 68 M.J. at 312; Mizgala, 61 M.J. at 127. ?Short
periods of inactivity are not fatal to an otherwise active prosecution.? Thompson, 68 M.J. at 312
(quoting Mizgala, 61 M.J. at 127); see Cossio, 64 M.J. at 256; Kossman, 38 M.J. at 262 (?Article
10 does not require instantaneous trials, but the mandate that the Government take immediate
steps to try arrested or con?ned accused must ever be borne in When assessing whether
the Government has complied with the reasonable diligence standard in any particular case,
courts look at the proceeding as a whole, and the ?essential ingredient is orderly expedition and
not mere speed.? Mizgala, 61 M.J. at 129 (quoting United States v. Mason, 45 C.M.R. 163, 167
(C.M.A. 1972)); see Thompson, 68 M.J. at 312.

96. Government diligence in any particular case can fall short of the reasonable diligence
benchmark even in the absence of bad faith or gross neglect. As the Mizgala Court explained,
?An Article 10 violation rests in the failure of the Government to proceed with reasonable
diligence. A conclusion of unreasonable diligence may arise from a number of different causes
and need not rise to the level of gross neglect to support a violation.? 61 M.J. at 129. Along the

29



same lines, the then-Court of Military Appeals observed in Kossman that ?where it is established
that the Government could readily have gone to trial much sooner than some arbitrarily selected
time demarcation but negligently or spitefully chose not to,? Article 10 has been violated. 38
M.J. at 261; see United States v. Hatfield, 44 MJ. 22, 23 (C.A.A.F. 1996). In plain terms, the
Article 10 inquiry asks ?whether the Government has been foot-dragging on a given case, under
the circumstances then and there prevailing.? Kossman, 38 M.J. at 262. The Government bears
the burden of proving that it has moved the case forward with the required reasonable diligence.
See Mizgala, 61 M.J. at 125 (?Under Article 10, the Government has the burden to show that the
prosecution moved forward with reasonable diligence in response to a motion to

97. To assess whether the Government has used reasonable diligence in processing the case,
courts look to a four-factor procedural framework. See Schuber, 70 M.J. at 188; Thompson, 68
M.J. at 312. ?The procedural framework for analyzing Article 10 issues examines the length of
the delay, the reasons for the delay, whether the accused made a demand for a speedy trial, and
prejudice to the accused.? Thompson, 68 M.J. at 312; see Schuber, 70 M.J. at 188; Cossio, 64
M.J. at 256; Mizgala, 61 MJ. at 127, 129; Birge, 52 M.J. at 212.6 Each factor of this procedural
framework is discussed in more detail below.

98. The length of delay factor operates, to some extent, as a triggering mechanism. See
Thompson, 68 M.J. at 312; Cossio, 64 MJ. at 256. ?[U]nless there is a period of delay that
appears, on its face, to be unreasonable under the circumstances, ?there is no necessity for
inquiry into the other factors that go into the balance.?? Cossio, 64 M.J. at 256 (quoting United
States v. Smith, 94 F.3d 204, 208-09 (6th Cir.1996)); see Schuber, 70 M.J. at 188. To determine
whether the delay in a given case has been ?presumptively prejudicial,? courts look at the
particular circumstances of the case, including ?the seriousness of the offense; the complexity of
the case; and the availability of proof;? whether the accused was ?informed of the accusations
against him; whether the Government complied with procedures relating to pretrial con?nement,
and whether the Government was responsive to requests for reconsideration of pretrial
confinement.? Schuber, 70 M.J. at 188; see Thompson, 68 M.J. at 315 (Stucky, J., concurring in
the result); Kossman, 38 M.J. at 261-62. Ultimately, however, ?an analysis of the ?rst factor is
not meant to be a Barker analysis within a Barker analysis.? Schuber, 70 M.J. at 188. Rather,
this ?rst factor in the Article 10 procedural framework simply serves to screen off those cases in
which the delay is not facially unreasonable. See Thompson, 68 M.J. at 312; Cossio, 64 M.J. at
256.

99. Under the second factor in the procedural framework the reasons for delay factor courts
carefully scrutinize the Govemment?s articulated reasons for delay to ensure that the
Government has not spent too long in a ?waiting posture.? See Mizgala, 61 M.J. at 129. Courts

6 The four factors identi?ed in the above-quoted procedural framework are derived from the Barker factors used
under the Sixth Amendment speedy trial analysis. See Barker v. Wingo, 407 U.S. 514, 530 (I972) (adopting these
same four factors). Therefore, the analysis under Article 10 and the analysis under the Sixth Amendment examine
the same factors. However, while the two analyses are similar, it is bedrock law that Article 10 creates a far more
exacting speedy trial demand than the Sixth Amendment does. See Schuber, 70 M.J. at 184, 188; Thompson, 68
MJ. at 312; Cossio, 64 MJ. at 256; Mizgala, 61 MJ. at 124-25; Cooper, 58 M.J. at 60; Birge, 52 MJ. at 21 1-12.
Thus, despite the similarities between the two inquiries, ?because Article 10 imposes a more stringent speedy trial
standard than the Sixth Amendment, ?Sixth Amendment speedy trial standards cannot dictate whether there has been
an Article 10 violation.? Thompson, 68 M.J. at 312 (quoting Mizgala, 61 MJ. at 127).

30

25963

must be careful not to accept as legitimate Government justifications that simply ?reflect the
realities of military criminal practice.? Thompson, 68 M.J. at 313 (?As a general matter, factors
such as staffing issues, responsibilities for other cases, and coordination with civilian officials
re?ect the realities of military criminal practice that typically can be addressed by adequate
attention and supervision, consistent with the Government?s Article 10 responsibilities?).

100. The third factor in the procedural framework whether the accused made a demand for a
speedy trial is straightforward. When a demand is made, courts inquire as to how early the
demand was made in the context of the entire proceedings and the genuineness of that demand.
See Thompson, 68 M.J. at 313 (?We also take into account the fact that [the accused] did not
make a speedy trial request during the entire pretrial day period addressed by the military
judge?); Kossman, 38 M.J. at 262 (?Stratagems such as demanding a speedy trial now, when the
defense knows the Government cannot possibly proceed, only to seek a continuance later, when
the Government is ready, may belie the genuineness of the initial request?).

101. Finally, courts look at three interests of the accused when analyzing the prejudice factor.
The Cossio Court quoted the Supreme Court?s discussion of the prejudice factor in Barker v.
Wingo:

Prejudice, of course, should be assessed in the light of the interests of defendants
which the speedy trial right was designed to protect. This Court has identified
three such interests: to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and to limit the possibility that
the defense will be impaired. Of these, the most serious is the last, because the
inability of a defendant adequately to prepare his case skews the fairness of the
entire system.

64 M.J. at 257 (quoting Barker v. Wingo, 407 U.S. 514, 532 (1972)); see Mizgala, 61 M.J. at 129
(identifying these three interests); see also Schuber, 70 M.J. at 191 (Erdmann, ., dissenting in
part and concurring in the judgment) (same); United States v. Miller, 66 M.J. 571, 575 (N-M. Ct.
Crim. App. 2008) (?the inability of [a defendant] adequately to prepare his case skews the
fairness of the entire

102. The Court of Appeals for the Armed Forces has emphasized the importance of treating ?the
procedural framework as an integrated process, rather than as a set of discrete factors.?
Thompson, 68 M.J. at 313; see Mizgala, 61 M.J. at 129.

103. It is important to recognize that the Article 10 analysis and the R.C.M. 707 analysis must
remain distinct. Just because a given period of time is properly excluded under R.C.M. 707(c)
does not mean that the Government need not answer for that time period in the Article 10
inquiry; rather, the fact of proper exclusion under R.C.M. 707(c) has little to no bearing on
whether the Government has used reasonable diligence under Article 10. See Lazauskas, 62 M.J.
at 42 (?The resolution under R.C.M. 707 does not preclude a party from asserting responsibility
for delay under Article 10, UCMJ, or the Constitution?); Mizgala, 61 M.J. at 128-29 (?Article
10 and R.C.M. 707 are distinct, each providing its own speedy trial protection. The fact that a
prosecution meets the 120-day rule of R.C.M. 707 does not directly ?or indirectly? demonstrate

31



25964

that the Government moved to trial with reasonable diligence as required by Article Birge,
52 M.J. at 211 if the Government has complied with RCM 707 and the Sixth
Amendment, the Govemment?s failure to proceed with ?reasonable diligence? would constitute a
violation of Article Kossman, 38 M.J. at 261 (?Merely satisfying lesser presidential
standards [of R.C.M. 707] does not insulate the Government from the sanction of Article
Calloway, 47 M.J. at 787 (?Even where delay is approved by the military judge, the Government
must still show reasonable diligence under an Article 10, UCMJ, 10 U.S.C. 810, analysis?); id.
(explaining that, unlike the R.C.M. 707(c) provision for excludable delay, ?Article 10, UCMJ, 10
U.S.C. 810, does not include a provision for a military judge to relieve the Government of the
burden of proving it proceeded with reasonable diligence when an accused is in pretrial
con?nement?). Because the protections of Article 10 are preeminent over those provided by
R.C.M. 707, Kossman, 38 M.J. at 261, R.C.M. 707 ?does not act as a limitation on the rights
afforded under Article 10.? Mizgala, 61 M.J. at 125. Therefore, regardless of those periods of
delay properly excluded under R.C.M. 707(c), the Government still must show reasonable
diligence under Article 10 for the entire period from ?arrest or con?nement? until trial. See
Cooper, 58 M.J. at 59-60; United States v. Simmons, No. ARMY 20070486, 2009 WL 6835721,
at *4 n.l3 (A. Ct. Crim. App. Aug. 12, 2009) (unpub.) (?Article 10, UCMJ, however, does not
address any speci?c excludible time periods; rather, the entire period of time from inception of
con?nement or arrest until trial is examined when considering whether the government exercised
reasonable diligence?); see also Miller, 66 M.J. at 573, 577 (?nding no violation of R.C.M. 707
but ?nding a violation of Article 10).

104. Finally, there is only one remedy for a violation of Article 10: dismissal of the affected
charges with prejudice. As the Kossman Court has explained:

The remedy for an Article 10 violation must remain dismissal with prejudice of
the affected charges. If it is concluded that the circumstances of the delay are
suf?ciently excusable or unavoidable as to permit a reinstitution of the charges,
there is no violation of Article 10 in the ?rst place. Where the circumstances of
delay are not excusable, on the other hand, it is no remedy to compound the delay
by starting all over.

38 M.J. at 262. Likewise, dismissal with prejudice is the only remedy available for a violation of
a military accused's Sixth Amendment speedy trial right. See R.C.M. 707(d)(1) (?The charges
must be dismissed with prejudice where the accused has been deprived of his or her
constitutional right to a speedy

ARGUMENT
A. The Government Violated PFC Manning?s Speedy Trial Rights under R.C.M. 707
105. PFC Manning was placed into pretrial con?nement on 29 May 2010. He was arraigned on
23 February 2012. Not counting the day of the triggering event but counting the day of

arraignment, see R.C.M. 707(b)(1), 635 days passed from the imposition of restraint under
R.C.M. 304(a)(4) until PFC Manning was ?brought to trial? within the meaning of R.C.M.

32



707(a), see id. While several periods of delay were excluded by the Convening Authority under
R.C.M. 707(c), many of these delays constituted abuses of discretion. When those improperly
excluded periods are added back to the R.C.M. 707 speedy trial clock, it becomes clear that the
Government has trampled upon PFC Manning?s R.C.M. 707 speedy trial rights. Given the
profound lack of diligence in the processing of this case from PFC Manning?s pretrial
con?nement until PFC Manning?s arraigmnent, this Court should dismiss all charges with
prejudice.

1. Triggering Event under R.C.M. 707(a)

106. The speedy trial protections of R.C.M. 707(a) are triggered upon ?the earlier of: (1)
[p]referral of charges; (2) [t]he imposition of restraint under R.C.M. or (3) [e]ntry
on active duty under R.C.M. 204.? R.C.M. 707(a). In this case, as the imposition of restraint
predated the preferral of charges, the triggering date is the imposition of restraint under R.C.M.
See id.

107. Here, the ?imposition of restraint under R.C.M. R.C.M. 707(a)(2), occurred
when PFC Manning was placed in pretrial con?nement on 29 May 2010. See R.C.M. 304(a)(4)
(de?ning pretrial con?nement). Therefore, the 120-day speedy trial clock began to run on 30
May 2010, the day after the imposition of restraint. See R.C.M. 707(b)(1) (providing that the
date on which restraint is imposed shall not be counted for purposes of the speedy trial clock).

2. Uncontested Days Under the R.C.M. 707 Speedy Trial Clock

108. The earliest day that was excluded by the Convening Authority was 12 July 2010. See 12
October 2010 Excludable Delay Memorandum, Attachment 16 (excluding period from 12 July
2010 to 12 October 2010 under R.C.M. 707(c)). Therefore, the 43 day period from 30 May
2010, the day after PFC Manning was placed in pretrial con?nement, see R.C.M. 707(b)(1), until
11 July 2010 counts against the R.C.M. 707(a) 120-day speedy trial clock.

109. The last day that was excluded by the Convening Authority was 15 December 2011. See 3
January 2012 Excludable Delay Memorandum, Attachment 60 (excluding period from 16
November 2011 to 15 December 2011 under R.C.M. 707(c)). Additionally, it appears that LTC
Almanza excluded the 10 days between 24 December 2011 and 2 January 2012. See 4 January
2012 Email from LTC Almanza to then-CPT Fein, Attachment 58; Chronology of Article 32 IO,
Attachment 59, at 4.7 Therefore, the 8-day period from 16 December 2011 until 23 December
2011 unquestionably counts against the R.C.M. 707(a) speedy trial clock. Finally, the 52-day
period from 3 January 2012 to PFC Manning?s arraignment on 23 February 2012, see R.C.M.
707(b)(1) (?The accused is brought to trial within the meaning of this rule at the time of
arraignment under R.C.M. also counts against the R.C.M. 707(a) speedy trial clock.

7 On 4 January 2012, LTC Almanza purported to ?exclude as a reasonable delay the days between 23 December
201 I and 3 January 2012 when Almanza] did not work on the Article 32 Investigation.?? 4 January 2012
Email from LTC Almanza to then-CPT Fein, Attachment 58. However, LTC Almanza did not specify how many
days, if any, he actually excluded. LTC Almanza?s chronology seems to indicate that he did not work on the Article
32 investigation for a period of 10 days within the 23 December 20] 13 January 2012 date range. Speci?cally, it
appears that LTC Almanza did not work on the Article 32 investigation from 24 December 201 to 2 January 2012.
See Chronology of Article 32 IO, Attachment 59, at 4.

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25966

110. Taken together, the 43 days from 30 May 2010 to 11 July 2010, the 8 days from 16
December 201 1 to 23 December 2011, and the 52 days from 3 January 2012 to 23 February 2012
add up to 103 days. Therefore, the Government cannot dispute that 103 days count against the
120-day speedy trial clock of R.C.M. 707(a).

3. Uncontested Exclusions under R.C.M. 707(c)

111. Other than the 103 days that unquestionably count against the R.C.M. 707(a) speedy trial
clock, the Convening Authority and Article 32 IO excluded under R.C.M. 707(c) the rest of the
635 days between the day after PFC Manning was placed in pretrial con?nement and the day he
was arraigned, see R.C.M. 707(b)(l). The Defense challenges many of those exclusions, which
totaled 532 days, as an abuse of the Convening Authority?s discretion. See Argument, Part A.4,
infra. However, the Defense does not challenge some of the Convening Authority?s excludable
delay decisions.

1 12. The Defense does not dispute the propriety of the Convening Authority?s decision to
exclude the period of 11 August 2010 until 12 October 2010. See 12 August 2010 Excludable
Delay Memorandum, Attachment 9; 25 August 2010 Excludable Delay Memorandum,
Attachment 1 1; 12 October 2010 Excludable Delay Memorandum, Attachment 16.8 The
Government apparently began acting on the Defense?s several requests for a R.C.M. 706 Board
only after the Defense?s fourth request on 1 1 August 2010. See 1 1 August 2010 Defense
Request, Attachment 8. The Defense then made a number of requests related to the upcoming
R.C.M. 706 Board?s evaluation. See 25 August 2010 Defense Request for Appointment of
Forensic Expert, Attachment 10; 26 August 2010 Defense Request for Adoption of
Procedures to Safeguard Classi?ed Information, Attachment 12; 3 September 2010 Defense
Request for Appropriate Security Clearances for Defense Team and Access for PFC Manning,
Attachment 13.

1 13. For similar reasons, the Defense does not challenge the Convening Authority?s decision to
exclude the following periods under R.C.M. 707(c): from 12 October 2010 to 10 November
2010, see 10 November 2010 Excludable Delay Memorandum, Attachment 17; from 10
November 2010 to 17 December 2010, see 17 December 2010 Excludable Delay Memorandum,
Attachment 19; from 17 December 2010 to 14 January 201 1, see 14 January 201 1 Excludable
Delay Memorandum, Attachment 21; and from 14 January 201 1 to 15 February 201 1, see 15
February 2011 Excludable Delay Memorandum, Attachment 23.

1 14. On 3 February 201 1, the Convening Authority issued an order directing the R.C.M. 706
board to resume its examination into the mental capacity and mental responsibility of PFC
Manning. See 3 February 201 1 Order to Resume Conducting Sanity Board, Attachment 22, at 1.

8 The Defense does contend that the portion of the Convening Authority?s 12 October 2010 excludable delay
memorandum that excluded the period of 12 July 2010 up until 10 August 2010, before the Government had taken
any action on the Defense?s first three requests for a R.C.M. 706 Board, was an abuse of discretion. See Argument,
Part A.4.b, infra. Therefore, to clarify the statement in the text preceding this footnote, the Defense reiterates that it
only concedes the validity of the Convening Authority?s 12 October 2010 excludable delay memorandum to the
extent that it excluded the period from I I August 2010 until 12 October 2010.

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25967

The order set a suspense date of 3 March 2011, four weeks from the date of the order. See id. at
6. Therefore, the Defense also does not contest that portion of the Convening Authority?s 18
March 2011 Excludable Delay Memorandum which excludes the period from 15 February 2011
to 3 March 2011, the suspense date set in the 3 February 2011 Order to Resume Conducting
Sanity Board. See 18 March 2011 Excludable Delay Memorandum, Attachment 26.9

115. To recap, then, this Motion does not purport to challenge the Convening Authority?s
exclusion of the time period from 11 August 2010 to 3 March 2011, a period of 205 days.

4. Improper Exclusions under R.C.M. 707(e)

116. Apart from the periods of excluded delay that the Defense does not challenge, the
Convening Authority or the Article 32 IO excluded several periods, totaling 327 days, under
R.C.M. 707(c). Each of these many exclusions constituted an abuse of discretion.

117. Most clearly, LTC Almanza?s exclusion of the 10-day period from 24 December 2011 to 2
January 2012 constituted a patent abuse of discretion. LTC Almanza failed to state the time
period covering the delay as well as his reasons for ?nding the delay to be reasonable. The
exclusion decision a one sentence email failed to even comply with the Convening
Authority?s directions. More problematic, the exclusion has absolutely no legal support
whatsoever. Because it is such an egregious abuse of discretion, this 10-day exclusion is
discussed ?rst.

118. The Convening Authority was hardly better at ful?lling its role under R.C.M. 707(c). With
respect to each of the Convening Authority?s many exclusions, the Convening Authority abused
its discretion. The Convening Authority abjured its responsibility to make an independent
determination of the reasonableness of each requested period of delay and instead became a
rubber stamp for the Government?s repeated requests for delay. Under the speedy trial
protections of R.C.M. 707, such a wholesale abdication of responsibility cannot be
countenanced. When even one of the improperly excluded time periods is added to the
uncontested days that count against the speedy trial clock, see Argument, Part A.2, supra, and
the 10 days so obviously erroneously excluded by LTC Almanza, the R.C.M. 707(a) 120-day
speedy trial clock has been violated. Each of the Convening Authority?s abuses of discretion is
discussed in chronological order.

a. LTC Almanza?s Exclusion

119. The most glaring example of an abuse of discretion in excluding a period from the R.C.M.
707 speedy trial clock occurred on 4 January 2012 when LTC Almanza purported to exclude, in
a one sentence email, the days between 23 December 2011 and 3 January 2012 when he did not
work on the Article 32 investigation. 4 January 2012 Email from LTC Almanza to then-CPT
Fein, Attachment 58. This exclusion is completely unsupportable on both legal and factual
grounds.

9 However, the Defense does challenge the Convening Authority?s decision to exclude the period beyond the
original 3 March 201 1 suspense date. See 18 March 201 1 Excludable Delay Memorandum, Attachment 26
(excluding from 15 February 201 I to 18 March 2011); see also Argument, Part A.4.c, infra.

35





120. The entirety of this ?exclusion? is the following sentence in a 4 January 2012 email from
LTC Almanza to then?CPT Fein: will exclude as a reasonable delay the days between 23
December 2011 and 3 January 2012 when I did not work on the Article 32 investigation.? Id
LTC Almanza did not even specify which days within this time period were excluded or, indeed,
if any days were excluded at all. It is not until one looks to LTC Almanza?s chronology that one
discovers that the days that LTC Almanza was ostensibly referring to are the 10 days from 24
December 2011 to 2 January 2012. See Chronology of Article 32 10, Attachment 59, at 4
(listing activity on 23 December 201 land 3 January 2012 but listing no activity between 24
December 2011 and 2 January 2012). The failure to reduce the exclusion decision to writing
along with the dates covering the delay violated both the Convening Authority?s exclusion
decisions and the proper procedure for granting delays under R.C.M. 707(c). See R.C.M. 707(c)
discussion decision granting the delay, together with supporting reasons and the dates
covering the delay, should be reduced to writing.? (emphasis supplied)); LTC Almanza
Appointment Memorandum, Attachment 7, at 1 (requiring all approvals or denials of delay
requests to be in writing); Special Instructions for Investigation under Article 32, Attachment 57,
at 3 (same).

121. Equally problematic, LTC Almanza provided no reasons whatsoever to support the
exclusion. This lack of reasons alone makes LTC Almanza?s exclusion an abuse of discretion.
See R.C.M. 707(c) discussion decision granting the delay, together with supporting
reasons and the dates covering the delay, should be reduced to writing.? (emphasis supplied)).

It is impossible to tell what it was about the time period in which LTC Almanza did not work on
this case that made him feel that excluding these 10 days was reasonable. See Savard, 2010 WL
4068964, at *3 (explaining that excluded delays under R.C.M. 707(c) must be reasonable);
Melvin, 2009 WL 613883, at *7 (same); Billquist, 2008 WL 2259774, at *2 (same); Brown, 2008
WL 1956589, at *9 (same); McDuj]ie, 65 M.J. at 634 (same); Fujiwara, 64 M.J. at 699 (same);
Rowe, 2003 WL 828986, at *1 (same); Proctor, 58 M.J. at 795 (same); Weatherspoon, 39 M.J. at
766 (same); Hayes, 37 M.J. at 772 (same).

122. Moreover, there is absolutely no legal authority for a ?federal holidays and weekends?
exclusion or a ?time the Government didn?t work on the case? exclusion under R.C.M. 707(c).
The rule itself contains no such provision. Moreover, the discussion section to R.C.M. 707(c),
quoted in full above, see Legal Framework, Part A, supra, lists several situations where
exclusions might be appropriate. The discussion section neither states nor even implies that
weekend and holiday time or time where the Article 32 IO simply doesn?t feel like working on
the case might be excluded under R.C.M. 707(c). Additionally, the Defense is aware of no case
that contains even a scintilla of support for a ?federal holidays and weekends? exclusion or a
?time the Government didn?t work on the case? exclusion under R.C.M. 707(c).

123. This lack of legal authority is unsurprising, as it plainly comports with common sense,
something that has been lacking in the Govemment?s camp in the 845 days since this case began.
If time can be excluded under federal holidays and weekends, what else can be excluded along
the same thought process?? Does R.C.M. 707(c) make room for exclusion of sick days??

Vacation days? LTC Almanza wasn?t computing billable hours for a law firm in his 4 January
2012 email; he was shaving days off of the R.C.M. 707 120-day speedy trial clock, one of the

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many sources of PFC Manning?s fundamental right to a speedy trial. See Lazauskas, 62 M.J. at
41; Mizgala, 61 M.J. at 124. While LTC Almanza was taking a break from the Article 32
investigation for the ?federal holidays and weekends,? PFC Manning remained in pretrial
con?nement, where he had been for the past 586 days. The notion that the Government can
exclude from the R.C.M. 707 speedy trial clock, a provision designed to ensure that the
Government diligently processes a case against an accused, periods of time in which the
Government simply did not work on the case is simply abhorrent to the purposes behind the
many speedy trial protections given to a military accused.

124. Finally, if more were needed to show that this exclusion constitutes an abuse of discretion,
LTC Almanza?s exclusion was an improper ex parte exclusion. The discussion section to
R.C.M. 707(c) states that ?[p]retrial delays should not be granted ex parte.? R.C.M. 707(c)
discussion. LTC Almanza neither requested nor waited for a Defense response to the
Government request for an exclusion; he simply granted the Govemrnent?s request the very next
day. Such an ex parte exclusion cannot be upheld by this Court.

125. For these reasons, the 10 days excluded by LTC Almanza represent a gross abuse of
discretion. Therefore, those 10 days should be added back to the R.C.M. 707(a) speedy trial
clock.

b. 12 July 2010 to 10 August 2010

126. The Convening Authority abused its discretion in excluding the period from 12 July 2010
to 10 August 2010, since the Government had made no apparent progress on the Defense?s
several requests for a R.C.M. 706 Board until after the Defense?s fourth request on 11 August
2010.

127. To be sure, the Defense requested the R.C.M. 706 Board, and in its 1 1 August 2010 request
(its fourth such request) the Defense stated that it ?maintains responsibility for this delay because
Captain Paul Bouchard initially requested the inquiry from PFC Manning?s previous chain of
command.? 11 August 2010 Defense Request, Attachment 8. However, that statement was
made under the assumption that the R.C.M. 706 Board would be conducted in a timely manner.
Because the Government did nothing between the period of 12 July 2010, when the Defense?s
second request for a R.C.M. 706 Board was made, and 11 August 2010, when the Defense?s
fourth request for a R.C.M. 706 Board was made, the responsibility for delay discussed in the
Defense?s fourth request was prospective only, ranging from the date of the request until the date
of the R.C.M. 706 Board?s completion.

128. On 12 August 2010, the Convening Authority approved the Defense?s fourth request and
ordered that the period from 11 August 2010 until the R.C.M. Board?s completion was
excludable defense delay. 12 August 2010 Excludable Delay Memorandum, Attachment 9.

129. However, on 12 October 2010, the Convening Authority reached back an additional month
and excluded the period from 12 July 2010 to 12 October 2010. 12 October 2010 Excludable
Delay Memorandum, Attachment 16. The excludable delay memorandum stated the following
under the heading ?Basis of Delay:?

37



The above delay is based on the following defense requests, responses, and the
facts and circumstances of this case:

a. Original Classi?cation Authorities (OCA) reviews of classi?ed information.

b. Defense request for Sanity Board, dated 1 1 July 2010 and Defense Renewed
Request for Sanity Board, dated 18 July 2010 (enclosed).

c. Defense Request for Appointment of Expert with Expertise in Forensic
to Assist the Defense, dated 25 August 2010 (enclosed).

d. Defense Request for Delay in the RCM 706 Board to Comply with
Prohibitions on Disclosure of Classi?ed Information, dated 26 August 2010
(enclosed).

e. Defense Request for Results of the Government?s Classi?cation Reviews by
the OCA, dated 26 August 2010 (enclosed).

f. Defense Request for Appropriate Security Clearances for the Defense Team
and Access for PFC Manning, dated 3 September 2010 (enclosed).

g. Preliminary Classi?cation Review of the Accused?s Mental Impressions, dated
17 September 2010 (enclosed), and Superseding Order, dated 22 September 2010
(enclosed).

h. Defense Response to the Preliminary Classi?cation Review of the Accused?s
Mental Impressions, dated 28 September 2011.

Id.

130. The decision to exclude the period from 12 July 2010 to 10 August 2010 was an abuse of
discretion. The Convening Authority offered no actual reasons for why the period from 12 July
2010 to 10 August 2010 should be excluded. All of the ?reasons? articulated by the Convening
Authority, with the exception of above, occurred after 11 August 2010. Therefore, none of
these reasons can support a decision excluding the period that predated the occurrence of these
reasons.

131. Moreover, the Convening Authority simply identi?ed in reason above the fact that the
second and third Defense requests for the R.C.M. 706 Board were made. But the mere fact that
these requests were made does not justify excluding the period immediately following them. To
be a reasonable delay, there would need to be some action taken with respect to these requests in
order to justify excluding the period from 12 July 2010 to 10 August 2010. The Convening
Authority identi?ed no such action in the ?Basis of Delay? section of its 12 October 2010
excludable delay memorandum. That is not surprising, however, since it appears that the
Government took no action on the Defense?s earlier R.C.M. 706 board request until after its

38

25971

fourth request on 11 August 2010. As far as the Defense can tell, the Government did nothing

for the 17-day period from 13 July 2010, the day after the second Defense request for a R.C.M.
706 Board was made, and 30 July 2010, when PFC Manning was transferred to Quantico. See
Facts, Part A.4, supra. Additionally, the only Government action taken between 30 July 2010

and 11 August 2010 appears to be the appointment of LTC Almanza as the new Article 32 10.

Nothing was done on the Defense?s R.C.M. 706 Board requests. Indeed, the whole reason that
the Defense was forced to make its fourth R.C.M. 706 Board request in the span on one month
was because the Government had done nothing on the prior three requests.

132. Therefore, because the Convening Authority failed to state the reasons thatjusti?ed
excluding the period from 12 July 2010 to 10 August 2010 (and because no such reasons
existed), it abused its discretion in excluding this period. See R.C.M. 707(c) discussion
decision granting the delay, together with supporting reasons and the dates covering the delay,
should be reduced to writing.? (emphasis supplied)). The Convening Authority failed to state
why the delay that was being excluded was reasonable. See Savard, 2010 WL 4068964, at *3
(explaining that excluded delays under R.C.M. 707(c) must be reasonable); Melvin, 2009 WL
613883, at *7 (same); Billquist, 2008 WL 2259774, at *2 (same); Brown, 2008 WL 1956589, at
*9 (same); McDu??ie, 65 M.J. at 634 (same); Fujiwara, 64 M.J. at 699 (same); Rowe, 2003 WL
828986, at *1 (same); Proctor, 58 M.J. at 795 (same); Weatherspoon, 39 M.J. at 766 (same);
Hayes, 37 M.J. at 772 (same).

133. For these reasons, the Convening Authority abused its discretion in excluding the period of
time between 12 July 2010 and 10 August 2010. When these 30 days that were erroneously
excluded are added to the 103 days that unquestionably count against the R.C.M. 707(a) 120-day
speedy trial clock and the 10 days that were clearly improperly excluded by LTC Almanza, the
Government failed to arraign PFC Manning within 120 days of the imposition of restraint.
Therefore, the Government violated PFC Manning?s R.C.M. 707 speedy trial rights.

c. 4 March 2011 to 18 March 2011

134. The Convening Authority also abused its discretion in excluding the period from 4 March
2011 to 18 March 2011. Dr. Sweda?s reasons for delay of the R.C.M. 706 Board?s suspense date
were inadequate, and the Convening Authority offered no explanation whatsoever of why the
Board?s requestjusti?ed the delay.

135. On 14 March 2011, almost two weeks after the original R.C.M. 706 Board?s suspense date,
Dr. Sweda requested an extension of the suspense date to 29 April 2011. See 14 March 2011
Memorandum Requesting Extension for R.C.M. 706 Board, Attachment 24. Dr. Sweda offered
only the following paragraph as the basis for his extension request:

The evaluators are coordinating suitable dates and times for the ?nal evaluation
session to take place. This involves multiple parties. Additionally, the ?nal
interview will take place at a SCIF and this has resulted in the consumption of
extra time for this aspect of the evaluation to be coordinated. We anticipate that
the ?nal date for the evaluation should take place in the ?rst ten days of April
2011 and are expecting that this delay will be con?rmed today.

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Id.

136. Four days later, the Convening Authority approved Dr. Sweda?s extension request. See 18
March 2011 Memorandum Approving R.C.M. 706 Board?s Extension Request, Attachment 25.
The entirety of the Convening Authority?s approval was stated in the following four sentences:
have reviewed the request for an extension of the RCM 706 Sanity Board for PFC Manning. The
request is: (signature) approved. The Sanity Board will be completed no later than 16 April

201 1. Any other extension of time must be submitted through the trial counsel to me for
approval.? Id. That same day, the Convening Authority also issued an excludable delay
memorandum. See 18 March 2011 Excludable Delay Memorandum, Attachment 26. The ?Basis
of Delay? section of this memorandum stated in its entirety:

The above delay is based on the following extensions, defense requests,
responses, and the facts and circumstances of this case:

a. Original Classi?cation Authorities? (OCA) reviews of classi?ed information.
b. OCA consent to disclose classi?ed information.

c. Defense Request for Sanity Board, dated 11 July 2010 and Defense Renewed
Request for Sanity Board, dated 18 July 2010 (enclosed).

d. Defense Request for Results of the Government?s Classi?cation Reviews by
the OCA, dated 26 August 2010 (enclosed).

e. Defense Request for Appropriate Security Clearances for the Defense Team
and Access for PFC Manning, dated 3 September 2010 (enclosed).

f. RCM 706 Sanity Board Extension Request, dated 14 March 2011 (enclosed).

Id.

137. There are several problems with the Convening Authority?s approval of the extension
request and exclusion of the time period between 4 March 2011 and 18 March 2011. First,
neither Dr. Sweda in his extension request nor the Convening Authority in its approval
memorandum or excludable delay memorandum even discussed the fact that the R.C.M. 706
Board had ?outed the Convening Authority?s original suspense date of 3 March 2011. No
mention was made by either Dr. Sweda or the Convening Authority of why the R.C.M. 706
Board had waited almost two weeks after the expiration of that suspense date to seek an
extension of it. The omission of a timely extension request indicates that the reasons offered by
Dr. Sweda and the ?basis of delay? identi?ed by the Convening Authority were merely post hoc
rationalizations for the R.C.M. 706 Board?s failure to timely complete its evaluation.

138. Moreover, the Convening Authority did not actually articulate any reasons why the R.C.M.
706 Board?s request should be granted. In its approval memorandum, the Convening Authority

40

25973

literally gave no reasons why the request should be granted. See 18 March 201 1 Memorandum
Approving R.C.M. 706 Board?s Extension Request, Attachment 25 (stating merely that have
reviewed the request for an extension of the RCM 706 Sanity Board for PFC Manning. The
request is: (signature) approved?). Similarly, in its excludable delay memorandum of the same
date, the Convening Authority offered no explanation of why the extension request justified the
delay. The mere fact that the request was made cannot establish that it was reasonable to grant
the request. And yet, from the paucity of the Convening Authority?s explanation, that is the only
possible conclusion that can be drawn as to the Convening Authority?s thought process.
Therefore, because the Convening Authority offered no explanation of the reasons justifying the
delay as reasonable delay, the Convening Authority abused its discretion in excluding the time
period from 4 March 201 1 to 18 March 2010 from the R.C.M. 707 120-day speedy trial clock.
See R.C.M. 707(c) discussion decision granting the delay, together with supporting
reasons and the dates covering the delay, should be reduced to writing.? (emphasis supplied));
Savard, 2010 WL 4068964, at *3 (explaining that excluded delays under R.C.M. 707(c) must be
reasonable); Melvin, 2009 WL 613883, at *7 (same); Billquist, 2008 WL 2259774, at *2 (same);
Brown, 2008 WL 1956589, at *9 (same); McDuf?e, 65 MJ. at 634 (same); Fujiwara, 64 M.J. at
699 (same); Rowe, 2003 WL 828986, at *1 (same); Proctor, 58 M.J. at 795 (same);
Weatherspoon, 39 M.J. at 766 (same); Hayes, 37 M.J. at 772 (same); cf Miller, 66 M.J. at 574
(remarking, in the context of an Article 10 analysis, ?Lastly, and perhaps most importantly, the
Government presented no evidence as to what action was taken to expedite the 706]
examination, particularly when it began to

139. For these reasons, the Convening Authority abused its discretion in excluding the period of
time between 4 March 201 1 and 18 March 201 1. When these 15 days that were erroneously
excluded are added to the 103 days that unquestionably count against the R.C.M. 707(a) 120-day
speedy trial clock and the 10 days that were clearly improperly excluded by LTC Almanza, the
Government failed to arraign PFC Manning within 120 days of the imposition of restraint.
Therefore, the Government violated PFC Manning?s R.C.M. 707 speedy trial rights.

d. 18 March 2011 to 22 April 2011

140. The Convening Authority also abused its discretion in excluding the period from 18 March
201 1 to 22 April 201 1 as excludable delay under R.C.M. 707(c). The R.C.M. 706 Board?s
second request for an extension offered even fewer reasons than its ?rst request, and the
Convening Authority once again offered no real explanation of the justi?cation for ?nding that
the period excluded was reasonable. Additionally, the circumstances surrounding the 22 April
201 1 excludable delay memorandum raise substantial questions as to whether the Convening
Authority gave the requisite ?independent determination? of whether there was in fact good
cause for the requested delay.

141. On 15 April 2011, the day before the extended suspense date for the completion of the
R.C.M. 706 Board?s evaluation, Dr. Sweda requested yet another extension of the suspense date.
See 15 April 2011 Memorandum Requesting Extension for Sanity Board, Attachment 27. Dr.
Sweda requested an extended suspense date of close of business on 22 April 201 1. See id. Dr.
Sweda offered only the following statement of reasons for the second extension request: ?The
Board has been diligently working on completion of the long report. We are nearing ?nalization

41

25974

of the report, but have limited availability to meet as a full board to discuss the report. This is
because of con?icting schedules and demands of the three board members.? Id. The Convening
Authority approved, without Defense input, Dr. Sweda?s request later that same day. Id.

142. The R.C.M. 706 Board submitted its report on 22 April 2011. See 22 April 2011 706 Short
Report, Attachment 28. The Convening Authority issued another excludable delay
memorandum on the same day that the R.C.M. 706 Board submitted its report. See 22 April
2011 Excludable Delay Memorandum, Attachment 29. This memorandum excluded the period
from 18 March 2011 to 22 April 2011. Id. at 1. The ?Basis of Delay? section of this
memorandum was quite familiar; it was a carbon copy of the 18 March 201 1 excludable delay
memorandum?s ?Basis of Delay? section, except that the R.C.M. 706 Board?s second extension
request was added to the list. See id. at 2. In full, the 22 April 2011 excludable delay
memorandum?s ?Basis of Delay? section provided as follows:

The above delay is based on the following extensions, defense requests,
responses, and the facts and circumstances of this case:

a. Original Classi?cation Authorities? (OCA) reviews of classi?ed information.
b. OCA consent to disclose classi?ed information.

c. Defense Request for Sanity Board, dated 11 July 2010 and Defense Renewed
Request for Sanity Board, dated 18 July 2010 (enclosed).

d. Defense Request for Results of the Govemment?s Classi?cation Reviews by
the OCA, dated 26 August 2010 (enclosed).

e. Defense Request for Appropriate Security Clearances for the Defense Team
and Access for PFC Manning, dated 3 September 2010 (enclosed).

f. RCM 706 Sanity Board Extension Request, dated 14 March 2011 (enclosed).
g. RCM 706 Sanity Board Extension Request, dated 15 April 2011 (enclosed).

Id. Moreover, this excludable delay memorandum was not actually signed by the Convening
Authority. Rather, it was signed for the Convening Authority by SFC Monica Carlile. Id. at 2.
SFC Carlile is a paralegal for the Government. There are several reasons why the Convening
Authority abused its discretion in excluding the time period from 18 March 2011 until 22 April
2011 under R.C.M. 707(c).

143. First, the Board?s only other reason for the second extension request was the ?limited
availability to meet as a full board to discuss the report . . . because of con?icting schedules and
demands of the three board members.? 15 April 2011 Memorandum Requesting Extension for
Sanity Board, Attachment 27. This reason is entirely illegitimate. Reasons like inadequate
staf?ng, other demands, and con?icting schedules of Board members are nothing more than the
?realities of military criminal practice.? Thompson, 68 M.J. at 313 (?As a general matter, factors

42



25975

such as staf?ng issues, responsibilities for other cases, and coordination with civilian of?cials
reflect the realities of military criminal practice that typically can be addressed by adequate
attention and see United States v. Johnson, 48 C.M.R. 9, 9 (C.M.A. 1973)
(explaining that a ?generalized claim of inadequate personnel and administrative convenience?
are insuf?cient excuses for speedy trial delay); United States v. Marshall, 47 C.M.R. 409, 412-13
(C.M.A. 1973) (holding that ?manpower shortages? and having ?too few officers assigned to the
preparation of the pretrial advice? were insuf?cient reasons for speedy trial delay); United States
v. Mickla, 29 M.J. 749, 752 n.2 (A.F.C.M.R. 1989) (?Despite a heavy workload or absence of a
full staff, the Government is still responsible for time delays?); United States v. Bell, 17 M.J.
578, 580 (A.F.C.M.R. 1983) (?The only explanation offered by the prosecution was, in essence,
that the of?ce of the staff judge advocate was very busy. This is not an acceptable explanation
for a While the three members of the R.C.M. 706 Board were taking time coordinating
their con?icting schedules, PFC Manning remained con?ned at Quantico in conditions
tantamount to solitary con?nement. See Appellate Exhibit 258, at 35-37. Therefore, because the
Board?s second extension request was based solely on the illusory justi?cation of the length of
the report and the illegitimate justi?cation of busy schedules, the Board presented the Convening
Authority with no valid reason to grant the extension request.

144. In addition to the inadequate reasons for the extension request offered by the R.C.M. 706
Board, the Convening Authority also failed to adequately explain the reasons for the exclusion
and how those articulated ?reasons? justified the delay as reasonable. Additionally, as it had
done before, the Convening Authority simply identi?ed, without any elaboration whatsoever, the
OCA classi?cation review process, various Defense requests, and the R.C.M. 706 Board?s
extension requests. But the mere fact that the Board made two requests does not in itself make
the delay reasonable under R.C.M. 707(c). Apart from simply identifying the fact that the
requests were made (which in itself provides no justi?cation for the conclusion that the requested
delay was reasonable), the Convening Authority gave no reasons why the second extension of
the suspense date was justi?ed. See R.C.M. 707(c) discussion (explaining that any delay under
R.C.M. 707(c) must be reasonable); Savard, 2010 WL 4068964, at *3 (same); Melvin, 2009 WL
613883, at *7 (same); Billquist, 2008 WL 2259774, at *2 (same); Brown, 2008 WL 1956589, at
*9 (same); McDuf?e, 65 M.J. at 634 (same); Fujiwara, 64 M.J. at 699 (same); Rowe, 2003 WL
828986, at *1 (same); Proctor, 58 M.J. at 795 (same); Weatherspoon, 39 M.J. at 766 (same);
Hayes, 37 M.J. at 772 (same); of Miller, 66 M.J. at 574. Indeed, since the suspense date had
already been extended once, one would suspect that the Convening Authority would at least
require more of a showing of good cause, or at least itself identify some reasons establishing
such good cause, before a second extension was granted. The fact that the Convening Authority
neglected to even offer the most minimal explanation of the reasons supporting the delay as
reasonable leads to one of two conclusions: either there were no adequate reasons to support the
reasonableness of delay, so that the Convening Authority thought it could just get a pass by
identifying requests for extensions without more; or the Convening Authority had by then
abdicated its responsibility to determine the reasonableness of the delay and had instead become
a rubber stamp for any Government requested delay. Neither conclusion can justify the
Convening Authority?s failure to identify the reasons why the delay was reasonable. See R.C.M.
707(c) discussion decision granting the delay, together with supporting reasons and the
dates covering the delay, should be reduced to writing.? (emphasis supplied)).



25976

145. Furthermore, the fact that the request was signed for the Convening Authority by a
paralegal of the Government Criminal Law shop shows that the Convening Authority abdicated
its responsibility to make an independent determination of the existence of good cause for the
delay. See Lazauskas, 62 M.J. at 45 (Baker, ., concurring); Thompson, 46 M.J. at 474-75. It is
outrageous that either the Government or the Convening Authority thought it appropriate for an
agent of the Government prosecuting the accused to sign for the apparently ?neutral? Convening
Authority. Indeed, SFC Carlile?s signature supports one sole inference: that the Convening
Authority had by 22 April 201 1 simply become a rubber stamp for the Govemment?s requested
delays.

146. For these reasons, the Convening Authority abused its discretion in excluding the period of
time between 18 March 2011 and 22 April 2011. When these 36 days that were erroneously
excluded are added to the 103 days that unquestionably count against the R.C.M. 707(a) 120-day
speedy trial clock and the 10 days that were clearly improperly excluded by LTC Almanza, the
Government failed to arraign PFC Manning within 120 days of the imposition of restraint.
Therefore, the Government violated PFC Manning?s R.C.M. 707 speedy trial rights.

e. 22 April 2011 to 12 May 2011

147. The Convening Authority also abused its discretion in approving the Govemment?s request
for delay and in excluding the period from 22 April 201 to 12 May 2011. The Govemment?s
stated reasons did not sufficiently explain why the delay requested was reasonable. Additionally,
the Convening Authority similarly failed to explain the reasons that made the excluded period of
delay a reasonable one.

148. The Government?s ?rst of eight requests for delay in the Article 32 hearing was made on
25 April 201 1. See 25 April 2011 Government Request for Delay, Attachment 30. The
Government related that this delay was necessary for it to receive consent from all of the OCAs
to release discoverable classi?ed evidence and information to the Defense. See id. The
Government provided the following reasons for its delay request:

Since 17 June 2010, the United States has been diligently working with all of the
departments and agencies that originally classi?ed the information and evidence
sought to be disclosed to the defense and the accused . . . . However, because of
the special circumstances of this case, including the voluminous amounts of
classi?ed digital media containing multiple equities and the subsequent discovery
of more information helpful to both the United States and the accused, more time
is needed for executive branch departments and agencies to obtain the necessary
consent from their OCA or authorizing of?cial.

Idl?

lt is unclear what ?subsequent discovery" the Government was referring to that was apparently ?helpful? to the
accused. The Defense did not receive any discovery during this period that was ?helpful? to the accused.
Accordingly, the Defense believes that the Government misstated the reasons for delay in order to make it appear
that the Government was acting in an even-handed manner in pursuing discovery.

44



25977

149. The Defense opposed this delay the next day, 26 April 2011. See 26 April 2011 Defense
Response to Government Request for Delay, Attachment 31. In order to minimize any further
delay, the Defense requested that the Government: provide substitutes for or summaries of the
relevant classi?ed documents; allow the Defense to inspect all unclassi?ed documents within the
Government?s control that were material to the preparation of the Defense; and ensure that the
Defense has equal access to CID and other law enforcement witnesses by making available any
requested witnesses. Id. at 1. Finally, the Defense requested that any further delay be credited to
the Government. Id. at 2.

150. The Convening Authority in effect approved the Government?s request for delay on 12
May 2011 when it issued an excludable delay memorandum excluding the period from 22 April
2011 to 12 May 2011 under R.C.M. 707(c). 12 May 2011 Excludable Delay Memorandum,
Attachment 32. The memorandum?s ?Basis of Delay? section provided in full as follows:

The above delay is based on the following extensions, defense requests,
responses, and the facts and circumstances of this case:

a. Original Classi?cation Authorities? (OCA) reviews of classi?ed information.
b. OCA consent to disclose classi?ed infonnation.

c. Defense Request for Results of the Govemment?s Classi?cation Reviews by
the OCA, dated 26 August 2010 (enclosed).

d. Defense Request for Appropriate Security Clearances for the Defense Team
and Access for PFC Manning, dated 3 September 2010 (enclosed).

e. Government Request for Delay of Article 32 Investigation, dated 25 April
2011 (enclosed).

Id The Convening Authority?s decision to exclude this time period is unsupportable and thus
constitutes an abuse of discretion.

151. As an initial matter, by its own admission, the Government had 313 days from 17 June
2010, when it apparently began to work with the OCAs, to 25 April 2011, when it made its ?rst
request for delay, in which to have the OCAs complete the classi?cation review process and to
obtain the necessary consent to disclose the relevant information. See 25 April 2011
Government Request for Delay, Attachment 30 (explainin that the Government had been
?diligently working with? the OCAs since 17 June 2010).] Moreover, by 12 May 2012, the
Government had an additional 17 days in which to complete the process. The Government
offered no satisfactory explanation of why it was unable to complete the classi?cation review
process in 330 days from the date that it supposedly started working with the OCAs and 349
days after PFC Manning was placed into pretrial con?nement. The only explanations that even

The Government did not explain why it had waited until 17 June 2010, 19 days after PFC Manning was placed in
pretrial con?nement on 29 May 2010, to begin working with the OCAS. When that period is added to the 313 days
from 17 June 2010 to 25 April 201 1, the Government had 332 days in which to complete the OCA process.

45



25978

potentially address the Government?s inability to complete the OCA classi?cation review
process are ?the voluminous amounts of classi?ed digital media containing multiple equities and

the subsequent discovery of more information helpful to both the United States and the
Id

152. But neither of these ?explanations? satisfactorily explains the substantial delay that had
already occurred. Even if the Government is correct that voluminous amounts of classi?ed
digital media are involved in this case, the OCA classi?cation reviews are anything but
voluminous. Of the ten OCA classi?cation reviews provided to the Defense by the Government,
only three were over twelve pages in length. Six of the classi?cation reviews were four pages or
less in length. The Govemment?s explanation does not address why the classi?cation reviews of
?voluminous amounts of classi?ed digital media,? if as as the Government asserts, yield
as little as a few pages in results. Additionally, at least two of these classi?cation reviews were
completed before the Government?s ?rst request for delay of the Article 32 hearing. Even these
completed reviews, however, were not disclosed to the Defense until late October or early
November, many months after the Government?s ?rst request for delay and many more after
their completion. The Government offered no reason for the delay in producing these completed
classi?cation reviews.

153. If the Government meant to imply that the process itself of coordinating with the OCAS
was a time-consuming one, it offered no reasons why this was so. The mere fact that the
Government needed to coordinate with another governmental agency does not in itself establish
good cause for delay. See United States v. Kuelker, 20 M.J. 715, 716-17 (N.M.C.M.R. 1985). In
Kuelker, the Government argued that a period of 87 days from the Govemment?s subpoena of
U.S Treasury checks then in possession of the Treasury Department to the Government?s receipt
of those checks should be excluded under R.C.M. 707(c). Id. at 716-17. The Navy-Marine
Court of Military Review disagreed, holding that ?the need to obtain crucial evidence in the
custody of another agency of the United States is a common problem and therefore associated
delay does not qualify for exclusion from the 120-day rule as a ?delay for good cause.?? Id. at
716. Any other conclusion, the Kuelker Court reasoned, would lead to the R.C.M. 707(c)
exception devouring the R.C.M. 707(a) rule. Id. at 717.

154. To be sure, the OCA classi?cation review process is likely more involved than the
subpoena of Treasury checks in Kuelker. But the Government provided no detail in its ?rst
request regarding the coordination between it and the various OCAs, other than to say it was
?diligently working? with them. Therefore, the Government offered nothing about the particular
coordination between it and the OCAs, other than the fact of the coordination itself, to justify the
delay. Accordingly, the rule in Kuelker is fully applicable to the Govemment?s generalized
claim of the need to coordinate with other agencies to obtain critical information, to the extent
that the Government?s explanation in its ?rst request for delay even made such a claim.

155. As far as the Government?s subsequent discovery of helpful information goes, it offered no
explanation why it was not able to discover this information in the 313 days between 17 June
2010 and its ?rst request for delay. Moreover, the Defense remains skeptical of whether the
Government actually found information helpful to PFC Manning, since the Government has only
just recently provided the Defense with most of Brady material turned over thus far.

46

25979

156. Additionally, the Govemment?s explanations of the need for delay are far too conclusory to
be helpful to the Convening Authority in determining whether the requested delay was
reasonable. The Government offers no explanation of what had been done in the classification
review process up to the date of its first request for delay and what still needed to be done in the
process. Certainly the statement that the Government has been ?diligently working? with the
OCAS is both too self-serving and too lacking in detail to offer any insight into where the
classi?cation review process stood on 25 April 2011. Nothing else in the Government?s request
for delay makes up for the Government?s utter lack of detail in its two explanations for the need
for delay. See United States v. Facey, 26 M.J. 421, 425 (C.M.A. 1988) (?Since the Government
has the responsibility of establishing its entitlement to any deductions from the period for which
it would otherwise be accountable under R.C.M. 707, any de?ciency of evidence must be laid at
its door.?)

157. In the end, therefore, it seems that the Government requested delay simply because it was
not ready to proceed. The then-Court of Military Appeals cautioned that such a justi?cation for
delay we need to delay the proceedings because we are not ready to proceed) is
unacceptable: ?If, however, a recess or continuance is requested solely because the Government
is not prepared to go forward with evidence on the merits, such time should not be excluded from
its speedy-trial accountability.? United States v. Ramsey, 28 M.J. 370, 373 (C.M.A. 1989). And
yet that is precisely what appears to have happened here.

158. Moreover, the Convening Authority appears to have done nothing on its own to fulfill its
responsibility to conduct an independent determination as to the good cause for or
reasonableness of the delay. See Lazauskas, 62 M.J. at 45 (Baker, ., concurring); Thompson, 46
M.J. at 474-75. Based on the lack of detail provided by the Government, the Convening
Authority should have at least made some effort to set forth the reasons why the delay being
excluded was reasonable. But, as usual, the Convening Authority relied on the practice of citing
various requests as the ?Basis of Delay? without providing any elaboration on why those
requests made the excluded period of delay a reasonable one. It is not at all clear how the
Defense?s request for the results of the OCA classi?cation reviews and for appropriate security
clearances, each made more than seven and a half months before the Government?s 25 April

201 1 request for delay, contributed to any delay in the Government?s classification review,
which was still ongoing at that point. Additionally, it is not clear from the Convening
Authority?s memorandum what about the Govemment?s request made the excluded period of
delay reasonable. The mere fact that the request was made cannot itself establish the
reasonableness of the requested delay. Perhaps we would know the Convening Authority?s
thought process if he explained that thought process. Because the Convening Authority limited
his discussion of the basis for the delay to a laundry list of requests and did not provide the
reasons why these requests made the excluded delay reasonable, we cannot know what led the
Convening Authority to conclude that the delay was reasonable. Therefore, the Convening
Authority abused his discretion in not articulating the reasons supporting his conclusion that the
delay was reasonable. See R.C.M. 707(c) discussion decision granting the delay,
together with supporting reasons and the dates covering the delay, should be reduced to writing.?
(emphasis supplied)); Savard, 2010 WL 4068964, at *3 (explaining that excluded delays under
R.C.M. 707(c) must be reasonable); Melvin, 2009 WL 613883, at *7 (same); Billquist, 2008 WL

47



25980

2259774, at *2 (same); Brown, 2008 WL 1956589, at *9 (same); McDuf?e, 65 M.J. at 634
(same); u?wara, 64 M.J. at 699 (same); Rowe, 2003 WL 828986, at *1 (same); Proctor, 58
M.J. at 795 (same); Weatherspoon, 39 M.J. at 766 (same); Hayes, 37 M.J. at 772 (same).

159. Even more problematic, the Convening Authority offered no consideration of the Defense?s
alternatives to delay, namely, the provision of summaries of or substitutions for the classi?ed
material so that the Article 32 hearing could commence as soon as possible. Indeed, nothing in
the Convening Authority?s excludable delay memorandum even indicates that the Convening
Authority consulted the Defense?s memorandum opposing the delay. The Convening
Authority?s refusal to even acknowledge the possibility of other options to delay of the Article
32 is further evidence that the Convening Authority had by then abdicated its responsibility to
make an independent determination of the reasonableness of the delay and had become a rubber
stamp for the Government?s many delay requests. See Argument, Part A.4.d, supra (discussing
further evidence of Convening Authority being a rubber stamp for the Government?s delay
requests).

160. For these reasons, the Convening Authority abused its discretion in excluding the period of
time between 22 April 2011 to 12 May 2011. When these 17 days that were erroneously
excluded are added to the 103 days that unquestionably count against the R.C.M. 707(a) 120-day
speedy trial clock and the 10 days that were clearly improperly excluded by LTC Almanza, the
Government failed to arraign PFC Manning within 120 days of the imposition of restraint.
Therefore, the Government violated PFC Manning?s R.C.M. 707 speedy trial rights.

f. 12 May 2011 to 17 June 2011

161. The Convening Authority also abused his discretion in approving the Govemment?s second
request for delay and excluding the period of 12 May 2011 to 17 June 2011. The Government's
stated reasons did not suf?ciently explain why further delay was reasonable. Additionally, the
Convening Authority similarly failed to explain the reasons that made the excluded period of
delay a reasonable one.

162. On 22 May 2011, the Government submitted its second request for delay of the Article 32
hearing, relating once again that delay was necessary in order to obtain consent from the OCAs.
See 22 May 2011 Government Request for Delay, Attachment 33. The ?Update? section of the
Govemment?s request reads in full as follows:

The prosecution is continuing to work with relevant Original Classi?cation
Authorities (OCAs) to obtain consent to disclose classi?ed evidence and
information to the defense along with receiving completed classi?cation reviews.
In anticipation of OCA consent, CID began making copies of classi?ed digital
media and evidence for disclosure to the defense. Additionally, the prosecution
learned that several exhibits and documents in the unclassi?ed CID case ?le
require authorization to disclose apart from any classi?ed information. The U.S.
Attorney?s Of?ce for the Eastern District of Virginia is working to obtain that
authorization on behalf of the prosecution from multiple federal districts within
the United States.

48

25981

Id. (emphasis in original). Two days later, the Defense sent an email opposition to the
Govemment?s request for delay. See 24 May 201 1 Email from Mr. Coombs to COL Coffman
Opposing Government Request for Delay, Attachment 34. The Defense relied on its position
from the 26 April 201 1 memorandum opposing the Govemment?s ?rst request for delay. Id
The Defense also requested that any additional delay be credited to the Government. Id.

163. On 17 June 201 1, the Convening Authority excluded the period from 12 May 201 1 to 17
June 2011 as excludable delay under R.C.M. 707(c). See 17 June 201 1 Excludable Delay
Memorandum, Attachment 35. The ?basis? for this exclusion was the exact same basis identi?ed
in the Convening Authority?s May excludable delay memorandum, except now the
Govemment?s 22 May 201 1 request for delay replaced the 25 April 201 1 request for delay that
had been listed in the 12 May 201 1 excludable delay memorandum. See id. Speci?cally, this
memorandum?s ?Basis of Delay? section provided in full as follows:

The above delay is based on the following extensions, defense requests,
responses, and the facts and circumstances of this case:

a. Original Classi?cation Authorities? (OCA) reviews of classi?ed information.
b. OCA consent to disclose classi?ed information.

c. Defense Request for Results of the Govemment?s Classi?cation Reviews by
the OCA, dated 26 August 2010 (enclosed).

d. Defense Request for Appropriate Security Clearances for the Defense Team
and Access for PFC Manning, dated 3 September 2010 (enclosed).

e. Government Request for Delay of Article 32 Investigation, dated 22 May 2011
(enclosed).

Id.

164. There are several reasons why the Convening Authority?s exclusion of the period from 12
May 201 1 to 17 June 201 1 was an abuse of discretion. First, the Government offered no
explanation of why the delay was reasonable or of where the Government stood in the
classi?cation review process. As of the date of its request, 340 days had passed since the
Government began working with the OCAS, and 359 days had passed since PFC Manning was
?rst placed into pretrial con?nement. What explanation did the Government provide of where it
was in the classification review process, which had at that point been ongoing for at least 340
days? It was ?continuing? to work with the OCAs. 22 May 201 1 Government Request for
Delay, Attachment 33. It had ?beg[u]n making copies? of some of the classi?ed material. Id.
And the United States Attomey?s Of?ce was ?working? to obtain necessary authorization to

49



25982

disclose unclassi?ed portions of the CID case These three facts told the Convening
Authority nothing about where the classi?cation review process was then positioned. What
speci?cally had already been done? How much had the various OCAs done in their respective
classi?cation reviews, and how much more did each OCA need to do before the classi?cation
review was complete? The Government didn?t say. Instead, it unhelpfully related that it was
?continuing? to work with the OCAs. Id. Without knowing how much has been done and what
still needed to be done in the classi?cation review process, the Convening Authority was unable
to make an informed determination of whether the requested period of delay was reasonable. See
Facey, 26 M.J. at 425.

165. Additionally, as mentioned above, see Argument, Part A.4.e, supra, the length of the
completed OCA classi?cation reviews casts further doubt on the Govemment?s contention that it
was working diligently in obtaining consent from the OCAs. The Government offered no
explanation of the details of the classi?cation review process, and when that lack of detail is
juxtaposed with the brevity of the completed classi?cation reviews, the Government?s conduct
from 17 June 2010 to 22 May 2011 seems anything but reasonably diligent. Furthermore, the
Government cannot simply hide behind the need to coordinate with other United States agencies
asjustifying its inordinate delay. See Kuelker, 20 M.J. at 716-17. Like its ?rst request, the
Govemment?s second request boils down to a plea for more time simply because it was not yet
ready to proceed. Accordingly, the Convening Authority should not have approved the request
and excluded yet another period of time simply because the Government was still not yet ready
to proceed. See Ramsey, 28 M.J. at 373.

166. Moreover, the Convening Authority was characteristically short on an explanation of
reasons why the period of excludable delay was a reasonable one. If the Convening Authority
had not already demonstrated that it was simply a rubber stamp for the Govemment?s many
delay requests, it amply demonstrated this fact with its 17 June 2011 excludable delay
memorandum. For one thing, the memorandum is quite clearly a cut-and-paste job, identifying
the exact same ?Basis of Delay? in the exact same order as had been identi?ed in the 12 May
2011 excludable delay memorandum and changing only the date of the Govemment?s request for
delay. For another thing, the Convening Authority once again offered no reasons as to why the
period of delay was reasonable. The only ?Basis of Delay? identi?ed was the OCA classi?cation
review process, two Defense requests from 26 August 2010 and 3 September 2010, and the
Government request. It offered no explanation of why these items justi?ed the delay as
reasonable. The fact that the various requests were made cannot establish that the delay was
reasonable. Furthermore, the signi?cance of the Convening Authority?s identi?cation of the
OCA classi?cation reviews is equally unexplained. Perhaps the Convening Authority meant to
suggest that the mere fact that the classi?cation review process was ongoing was proof that any
delay until the completion of that process was excludable delay. But this cannot be otherwise
this de facto determination eliminates the reasonableness determination required under the rule.
In order to ?nd that the ongoing nature of the classi?cation review process made any delay
reasonable, the Convening Authority would need to know that the classi?cation review process
was being conducted in a reasonably diligent manner. The Convening Authority identi?ed no

'2 Unsurprisingly, the Government also offered no explanation for why it wasjust now, 359 days since PFC
Manning was placed into pretrial con?nement, learning that some unclassi?ed portions of the CID case ?le required
authorization to be disclosed.

50

25983

facts indicating that this was the case in its 12 July 2011 memorandum. That?s not surprising,
either, since the Government had eschewed any effort to provide the Convening Authority with a
meaningful description of where the classi?cation review process was, where it had been, and
where it was going.

167. Additionally, the Convening Authority once again made no effort to address the concerns
and alternatives put forth in the Defense?s 26 April 2012 opposition memorandum and reiterated
in the Defense email opposing the Government?s second request for delay. This refusal to even
acknowledge the existence of alternatives to further delay is yet additional evidence that the
Convening Authority was simply a rubber stamp to all Government requests for delay. Finally,
while the Convening Authority mouthed its familiar refrain that it had ?acknowledge[d] and
reviewed? the Defense?s request for speedy trial, the Convening Authority made no mention of
the fact that PFC Manning had spent 385 days in pretrial con?nement as of the date of its
excludable delay memorandum.

168. In short, the 17 June 201 1 excludable delay memorandum is entirely devoid of an
articulation of the reasons why the exclusion of the delay was reasonable. Even if excluding the
prior period of delay was not an abuse of discretion (which the Defense does not in any way
concede), the decision to exclude an additional 37 days on the same factual predicate as the prior
period with no new reasons to suggest that the delay was reasonable constitutes an abuse of
discretion. See Savard, 2010 WL 4068964, at *3 (explaining that excluded delays under R.C.M.
707(c) must be reasonable); Melvin, 2009 WL 613883, at *7 (same); Billquist, 2008 WL
2259774, at *2 (same); Brown, 2008 WL 1956589, at *9 (same); McDu?"te, 65 M.J. at 634
(same); Fujiwara, 64 M.J. at 699 (same); Rowe, 2003 WL 828986, at *1 (same); Proctor, 58
M.J. at 795 (same); Weatherspoon, 39 M.J. at 766 (same); Hayes, 37 M.J. at 772 (same).

169. For these reasons, the Convening Authority abused his discretion in excluding the period of
time between 12 May 2011 and 17 June 2011. When these 37 days that were erroneously
excluded are added to the 103 days that unquestionably count against the R.C.M. 707(a) 120-day
speedy trial clock and the 10 days that were clearly improperly excluded by LTC Almanza, the
Government failed to arraign PFC Manning within 120 days of the imposition of restraint.
Therefore, the Government violated PFC Manning?s R.C.M. 707 speedy trial rights.

g. 17 June 2011 to 5 July 2011

170. The Convening Authority also abused his discretion in approving the Government?s third
request for delay and excluding the period from 17 June 2011 to 5 July 201 The Government
once again failed to adequately explain why the delay sought was reasonable, and the Convening
Authority once again declined to state its reasons why it found that the period of delay excluded
was reasonable.

'3 The Convening Authority?s 5 July 201 I memorandum approving the Govemment?s third request for delay
actually purported to exclude from 22 April 201 1 to the restart of the Article 32 investigation under R.C.M. 707(c).
Because the time period from 22 April 201 1 to 17 June 201 I is challenged above, see Argument, Part A.4e-f, supra,
and the time period from 5 July 201 I to the restart of the Article 32 investigation is challenged below, see
Argument, Part infra, this subsection deals only with the 5 July 201 approval memorandum to the extent
that it excludes the period from 17 June 201 I to 5 July 201 1.

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25984

171. The Government made its third request for delay of the Article 32 hearing on 27 June 2011.
See 27 June 201 1 Government Request for Delay, Attachment 36. This request was made two
days after the date the Government promised to provide the Convening Authority with an update
of the proceedings. See 22 May 201 1 Government Request for Delay, Attachment 33
(explaining that ?[t]he prosecution will provide [the Convening Authority] an update no later
than 25 June The Government did not explain its tardiness in its third request for delay.
This request once again requested delay ?until the United States receives the proper authority to
release discoverable unclassi?ed and classi?ed evidence and information to the defense.? 27
June 2011 Government Request for Delay, Attachment 36, at 1. In the ?Update? section of its
delay request, the Government explained that it was still ?continuing? to work with the OCAs.
Id. The Government also explained that forensic examiners had just discovered another
document requiring OCA consent to disclose to the defense. Id. The Government related that
the National Security Agency (N SA) was still reviewing the unclassi?ed CID case ?le. Id.
Finally, the Government explained that the United States Attorney?s Of?ce for the Eastern
District of Virginia was ?continuing? to work on obtaining the necessary authorizations. Id.

172. The Defense opposed the Government?s request for delay via email, maintaining the
position articulated in its 26 April 2011 memorandum opposing the Government?s ?rst request
for delay. See 29 June 2011 Email from Mr. Coombs to COL Coffman Opposing Government
Request for Delay, Attachment 37. The Defense again requested that any additional delay be
credited to the Government. Id.

173. On 5 July 2011, the Convening Authority approved the Govemment?s third request for
delay. See 5 July 2011 Memorandum Approving Government Request for Delay, Attachment
38. The only portion of the Convening Authority?s memorandum that can arguably contain any
reasons for the delay states in full as follows:

After reviewing pertinent portions of the case ?le, it is my understanding that
ongoing national security concerns exist in this case, as well as an ongoing law
enforcement investigation(s) into PFC Manning and others. In light of the
national security concerns and ongoing investigation(s), the prosecution will
cautiously proceed with the disclosure of information, but will comply with its
obligations under Article 46, UCMJ, RCM 405, RCM 701, RCM 703, and
applicable case law. In addition, once the prosecution receives the authority to
disclose previously undisclosed information to the defense, it will do so
expeditiously to minimize any unnecessary delay.

Id.

For reasons similar to those identi?ed above, see Argument, Part A.4.e-f, supra, the Convening
Authority abused its discretion when it excluded the time period from 17 June 2011 to 5 July
2011.

174. As usual, the Government failed to answer the question on the Defense?s mind (and the one
that should have been, but evidently was not, on the Convening Authority?s mind): why was the

52



25985

classi?cation review process still ongoing on the date of the Govemment?s third request for
delay, 376 days after it had been started on 17 June 2010 and 395 days after PFC Manning was
placed into pretrial con?nement?? The Government only explained that the process was
?continuing? in multiple respects. 27 June 2011 Government Request for Delay, Attachment 36.

175. Additionally, the Govemment?s explanation for the delay was as vague as ever. It stated
that it was ?continuing? to work with the OCAS and that the U.S. Attorney?s Of?ce was
?continuing? to work on getting the necessary authorizations. Id. But saying that a process is
?continuing? says nothing about what exactly has already been done and what exactly remains to
be done. Without that information, how could the Convening Authority determine that the
classi?cation review process was ?continuing? at a reasonably diligent pace? The Convening
Authority could not and did not come to such a determination. See Facey, 26 M.J. at 425.
Likewise, the Government explained that the NSA was reviewing the unclassi?ed portion of the
CID case ?le, but it neglected to explain what that review process entailed, how far along the
NSA was in that process, and when the NSA was expected to complete this review. Finally, the
Government offered no explanation for why its forensic examiners had just now, 395 days after
PFC Manning was placed into pretrial con?nement, ?discovered? a new classi?ed document.
Consistent with its prior requests for delay, the Government?s third request for delay gave just
enough new facts about the processing of the case to create the illusion that many things were
happening while not giving away too many facts to reveal the Govemment?s overall lack of
reasonable diligence in the classi?cation review process.

176. The conclusion that the Government failed to use reasonable diligence in processing this
case towards the Article 32 hearing becomes unmistakable when the length of the completed
OCA classi?cation reviews is thrown in the mix. See Argument, Part A.4.e, supra.
Furthermore, the mere fact that the Government needed to coordinate with other United States
agencies is no justi?cation for the Govemment?s substantial delay. See Kuelker, 20 MJ. at 716-
17. Like its ?rst two requests, the Govemment?s third request for delay was simply a plea for
more time because the Government was not yet ready to proceed. Accordingly, the Convening
Authority should not have approved the request. See Ramsey, 28 M.J. at 373.

177. For its part, the Convening Authority bought the Govemment?s explanation of the necessity
for the delay hook, line, and sinker. The Convening Authority, like the Government in its
request, offered no reasons why the Govemment?s processing of the case had been diligent
enough that the requested delay was reasonable. In fact, the only justi?cation the Convening
Authority offered was the ongoing national security concerns and law enforcement
investigation(s). See 5 July 2011 Memorandum Approving Government Request for Delay,
Attachment 38. How did those ongoing national security concerns and law enforcement
investigation(s) contribute to the delay in the classi?cation review process?? What about the
ongoing national security concerns and law enforcement investigation(s) made the delay
requested by the Government and eventually excluded by the Convening Authority reasonable?
The Convening Authority did not provide an answer to either question. Evidently, the
Convening Authority believed that he could invoke important, busy sounding words like
?ongoing,? ?national security concerns,? and ?law enforcement without any
elaboration whatsoever, just as the Government had repeatedly invoked the phrase that it was
?continuing? to work with the OCAS, in order to manufacture the reasonableness of the delay.

53





However, R.C.M. 707(c) provides for no magic words or incantations that show the
reasonableness of the delay; rather, that reasonableness must be shown by stating the reasons for
that conclusion. See R.C.M. 707(c) discussion decision granting the delay, together with
supporting reasons and the dates covering the delay, should be reduced to writing.? (emphasis
supplied)).

178. Additionally, the Convening Authority once again eschewed any explicit consideration of
the alternatives proposed and the concerns voiced by the Defense in its 26 April 2011
memorandum opposing the requested Government?s ?rst requested delay and reiterated in the
Defense?s email opposing the Government?s third request for delay. To be sure, the Convening
Authority at least acknowledged the fact that the Defense opposed the request for delay, a fact
noticeably absent from the Convening Authority?s 12 May 2011 and 17 June 2011 memoranda.
But acknowledging the fact that an opposition position was stated is a far cry from considering
the substance of that opposition position, and there is nothing to indicate that the Convening
Authority gave any consideration to the substance of the Defense?s speedy trial concerns or the
suggestions for alternatives to any further periods of delay. The Convening Authority?s failure
to give the Defense?s position any meaningful consideration is consistent with what was by 5
July 2011 perfectly clear to all involved: the Convening Authority would not undertake any sort
of independent determination of the good cause for the requested delay, but would instead,
similar to a grand jury indicting the proverbial ham sandwich, exclude any period of delay that
the Government put in front of it.

179. Finally, the Convening Authority failed to mention that the Government did not provide the
Convening Authority with an update within the time period the Government had promised. On a
matter where the Govemment?s reasonable diligence (or lack thereof) is front-and-center, it is
surprising that the Convening Authority did not even bother to mention that the Government had
proved unable to live up to its own deadlines. The Convening Authority's silence on this point,
whether deliberate or inadvertent, is further indication that the Convening Authority was a mere
rubber stamp for the Government?s many delay requests.

180. For these reasons, the Convening Authority abused his discretion in excluding the period of
time between 17 June 2011 and 5 July 2011. When these 19 days that were erroneously
excluded are added to the 103 days that unquestionably count against the R.C.M. 707(a) 120-day
speedy trial clock and the 10 days that were clearly improperly excluded by LTC Almanza, the
Government failed to arraign PFC Manning within 120 days of the imposition of restraint.
Therefore, the Government violated PFC Manning?s R.C.M. 707 speedy trial rights.

h. 5 July 2011 to 10 August 2011

181. The Convening Authority similarly abused his discretion in excluding the period of 5 July
2011 to 10 August 2011 under R.C.M. The troubling pattern of vague status updates by

'4 This subsection challenges two decisions of the Convening Authority: the 26 July 201 approval of the
Govemment?s fourth request for delay and the 10 August 201 excludable delay memorandum. The 26 July 201
approval purports to exclude the time period from 22 April 201 1 to the restart of the Article 32 investigation.
However, because the period from 22 April 201 to 5 July 201 is challenged elsewhere, see Argument, Part A.4.e-
g, supra, and the period from 10 August 201 to the restart of the Article 32 investigation is also challenged

54

25987

the Government that did not explain why further delay was reasonable followed by immediate

exclusion of the time period by the Convening Authority with no articulation of the reasons that
the exclusion was reasonable also marred the Convening Authority?s exclusion of this time

period.

182. The Government requested delay of the Article 32 hearing for the fourth time on 25 July
201 1. See 25 July 201 1 Government Request for Delay, Attachment 39. The basis of this
request was exactly the same as all of the previous requests: the Government still needed time to
get the approvals of the various OCAs to release information to the defense. See id at 1. The
Government identi?ed what could arguably be three reasons for the necessity of yet another
period of delay: (1) the Government was still ?continuing? to work with the OCAS to obtain
consent to disclose the relevant information; (2) the NSA review of the unclassi?ed CID case
?le, along with a similar review of that case ?le being conducted by another government
intelligence organization (OGA), was ?ongoing;? and (3) the United States Attorney?s Of?ce
was still ?continuing? to work on obtaining the necessary authorizations. See id. The
Government also identi?ed the discovery that it had produced to the Defense so far. See id.

183. The Defense opposed the Government?s request for delay on 25 July 201 1. See 25 July
201 1 Defense Opposition to Government Request for Delay, Attachment 40. The Defense
pointed out that ?the Government has now had over a year? to complete the classi?cation review
process. Id. The opposition memorandum also attacked the adequacy of the Govemment?s
explanation of why such protracted delay was necessary: ?The latest request by the trial counsel
for excludable delay does not adequately explain what has been done to require timely response
and reviews by the relevant Id. The Defense also renewed its requests for speedy trial
and for the Government to provide a substitute for a summary of the relevant classi?ed
documents in order to minimize any further unnecessary delay. Id. Finally, the Defense once
again requested that any additional delay be credited to the Government instead of being
excluded under R.C.M. 707(c). Id.

184. The Convening Authority approved the Government?s fourth request for delay on 26 July
201 1. See 26 July 201 1 Memorandum Approving Government Request for Delay, Attachment
41. The memorandum merely changed the dates listed in the 5 July 2011 memorandum
approving the Govemment?s third request for delay; otherwise, the two memoranda approving
the Government?s requests for delay were virtually identical.

185. On 10 August 201 1, the Convening Authority issued another excludable delay
memorandum. See 10 August 2011 Excludable Delay Memorandum, Attachment 42. This
memorandum stated that ?[t]he period from 13 July 201 1 until [10 August 2011] is excludable
delay under RCM Id. The Convening Authority relied on the exact same bases for

elsewhere, see Argument, Part A.4.i-l, infra, this subsection only challenges the 26 July 201 approval to the extent
that it excludes the time period from 5 July 201 1 to 10 August 201 1.

Additionally, as explained infra in the text of this subsection, there are no additional facts in the record from the 26
July 201 1 approval of the Govemment?s fourth request for delay and the Convening Authority?s 10 August 201
excludable delay memorandum. Therefore, because the factual basis underlying the 26 July 201 I approval and the
10 August 201 1 excludable delay memorandum is identical, this subsection also challenges the propriety of this
memorandum.

55

25988

delay as it had relied on in the excludable delay memoranda of 12 May 2011 and 17 June 2011
and simply added the latest Government request for delay as an additional basis. See id. The 10
August 2011 excludable delay memorandum provided the following in the ?Basis of Delay?
section:

The above delay is based on the following extensions, defense requests,
responses, and the facts and circumstances of this case:

a. Original Classi?cation Authorities? (OCA) reviews of classi?ed information.
b. OCA consent to disclose classi?ed information.

c. Defense Request for Results of the Govemment?s Classi?cation Reviews by
the OCA, dated 26 August 2010 (enclosed).

d. Defense Request for Appropriate Security Clearances for the Defense Team
and Access for PFC Manning, dated 3 September 2010 (enclosed).

e. Government Request for Delay of Article 32 Investigation, dated 25 July 2011
(enclosed).

Id.

186. For many of the same reasons articulated above, see Argument Part A.4.e-g, the Convening
Authority once again abused its discretion in excluding, via the 26 July 2011 memorandum
approving the Government?s fourth request for delay and the 10 August 2011 excludable delay
memorandum, the period from 5 July 2011 to 10 August 2011 from the R.C.M. 707 speedy trial
clock.

187. First of all, nowhere in the ?Update? section of its request for delay did the Government
provide any explanation whatsoever for why the classi?cation review process had still not been
completed 404 days after the process began on 17 June 2010 and 423 days after PFC Manning
was placed into pretrial con?nement. The only three points that could conceivably be
characterized as ?reasons? for the requested delay were that the Government was ?continuing? to
work with the OCAs, the review of the unclassi?ed CID case ?le was ?ongoing,? and that the
United States Attorney?s Of?ce for the Eastern District of Virginia was ?continuing? its work.
25 July 2011 Government Request for Delay, Attachment 39. These points tell us nothing about
the progress had been made in the past 404 days, what remained to be done, and approximately
when the ?ongoing? tasks would be completed. Without this information, the Convening
Authority had no suf?cient basis to assess whether the Govemment?s request for delay was
reasonable because he had no suf?cient basis to assess whether the Government was performing
these ?ongoing? tasks in a reasonably diligent manner. See acey, 26 M.J. at 425. In this
respect, the Government?s profferred ?reasons? were as ?awed as always. See Argument, Part
A.4.e-g, supra. Moreover, the fact that the Government ?nally provided the Defense with
discovery similarly gives no indication of the diligence (or lack thereof) with which the
Government was handling the classi?cation review process.

56



188. Additionally, the length of the completed OCA classi?cation reviews casts further doubt on
the Govemment?s contention that it was working diligently in obtaining consent from the OCAS.
See Argument, Part A.4.e, supra. Finally, the Government?s need to coordinate with other
United States agencies to obtain information cannot excuse its inordinate delay in the processing
of this case. See Kuelker, 20 M.J. at 716-17. Like its ?rst three requests, the Govemment?s
fourth request for delay was simply a plea for more time because the Government was not yet
ready to proceed. Accordingly, the Convening Authority should not have approved the request.
See Ramsey, 28 M.J. at 373.

189. With this meager explanation of the necessity of yet another period of delay in the Article
32 hearing, one might expect the Convening Authority to make a more searching inquiry
before concluding that the fourth requested period of delay was a reasonable one. One would be
mistaken, however, as the Convening Authority approved the Government?s request the very
next day after the request was made. The Convening Authority?s cut-and-paste approval of the
Government?s fourth request for delay, offering as it does the exact same ?reasons? that were put
forth in the Convening Authority?s 5 July 201 approval of the Govemment?s third request for
delay, requires little comment in addition to what has already been provided above. See
Argument, Part A.4.g, supra. It suf?ces to say that the Convening Authority yet again failed to
articulate speci?cally what about the ongoing national security concerns and law enforcement
investigation(s) made the delay requested by the Government and eventually excluded by the
Convening Authority as reasonable excludable delay. Even if clinging to the phrase ?ongoing
national security concerns and law enforcement investigation(s)? as if it were a magic phrase was
not an abuse of discretion on 5 July 2011, which the Defense submits it was, surely clinging to
the same phrase nearly a month later with no elaboration whatsoever of any new developments
justifying the further period of delay does constitute an abuse of discretion.

190. Similarly, the Convening Authority?s 10 August 2011 excludable delay memorandum
suffers from the same incurable ?aws that plagued all of the Convening Authority?s excludable
delay memoranda from 22 April 2011 onward. See Argument, Part A.4.e-f, supra. As always,
the Convening Authority appears to have done nothing on his own to ful?ll his responsibility to
conduct an independent determination as to the good cause for or reasonableness of the delay.
See Lazauskas, 62 M.J. at 45 (Baker, ., concurring); Thompson, 46 M.J. at 474-75. Moreover,
the Convening Authority once again failed to articulate the reasons why the various items listed
in the ?Basis of Delay? section made the excluded period of delay reasonable. See Savard, 2010
WL 4068964, at *3 (explaining that excluded delays under R.C.M. 707(c) must be reasonable);
Melvin, 2009 WL 613883, at *7 (same); Billquist, 2008 WL 2259774, at *2 (same); Brown, 2008
WL 1956589, at *9 (same); McDu?ie, 65 M.J. at 634 (same); Fujiwara, 64 M.J. at 699 (same);
Rowe, 2003 WL 828986, at *1 (same); Proctor, 58 M.J. at 795 (same); Weatherspoon, 39 M.J. at
766 (same); Hayes, 37 M.J. at 772 (same). The fact that the classi?cation review process was
still ?ongoing,? or that the various cited requests were made, tells us nothing about why the
excluded time period is a period of reasonable delay under R.C.M. 707(c). Without an
articulation of the reasons supporting the Convening Authority?s conclusion that the delay was
reasonable, this Court is left with no other choice but to find that the Convening Authority
abused its discretion in so thoroughly abdicating its responsibilities to consider the
reasonableness of the requested delay.

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25990

191. Most troubling about the 26 July 2011 memorandum approving the Government?s fourth
request for delay and the 10 August 2011 excludable delay memorandum is that neither
document addresses the main concern of the Defense opposition memorandum, a concern which
strikes at the heart of the exclusion of this time period and indeed every other time period
challenged in this Motion: the Government had provided the Convening Authority with
absolutely no explanation for why the classi?cation review process had not been completed over
a year after PFC Manning was placed into pretrial con?nement. See 25 July 201 1 Defense
Opposition to Government Request for Delay, Attachment 40. Neither of the Convening
Authority?s memoranda excluding the time period from 5 July 2011 to 10 August 2011
addressed the alternatives to further delay suggested by the Defense on numerous occasions.
And neither memorandum appeared to give any consideration to the fact that PFC Manning had
been in pretrial con?nement for 424 days as of the date of the 26 July 2011 memorandum and
439 days as of the date of the 10 August 201 memorandum. Because the Convening Authority
gave no apparent consideration to any of the Defense?s arguments against delay, the Convening
Authority yet again revealed that he was simply a rubber stamp for approving Government delay
requests.

192. For these reasons, the Convening Authority abused his discretion in excluding the period of
time between 5 July 201 1 and 10 August 201 1. When these 37 days that were erroneously
excluded are added to the 103 days that unquestionably count against the R.C.M. 707(a) 120?day
speedy trial clock and the 10 days that were clearly improperly excluded by LTC Almanza, the
Government failed to arraign PFC Manning within 120 days of the imposition of restraint.
Therefore, the Government violated PFC Manning?s R.C.M. 707 speedy trial rights.

i. 10 August 2011 to 29 August 2011

193. The Convening Authority also abused his discretion in approving the Government?s ?fth
request for delay and excluding the period from 10 August 201 1 to 29 August 2011.15 As
always, the Government failed to provide a suf?cient explanation for why the classi?cation
review process was still ongoing, well over a year after the process ostensibly began. Not to be
outdone, the Convening Authority took his usual route: exclusion of the requested time period
with absolutely no articulation of the reasons that justi?ed that exclusion as reasonable.

194. The Government made its ?fth request for delay of the Article 32 hearing on 25 August
2011. See 25 August 2011 Government Request for Delay, Attachment 43. The basis for the
requested delay was the same as before: the Government still, over a year and two months after
PFC Manning was placed into pretrial con?nement, needed time to obtain the authority from the
OCAS to disclose evidence and information to the Defense. See id. at 1. The Government once

'5 In its 29 August 201 1 memorandum approving the Government?s ?fth request for delay, the Convening Authority
purported to exclude the period from 22 April 201 I to the date of the restart of the Article 32 investigation. See 29
August 201 I Memorandum Approving Government Request for Delay, Attachment 45. However, because the
exclusion of the time period from 22 April 201 1 to 10 August 201 1 is challenged above, see Argument, Part A.4.e-h,
supra, and the exclusion of the time period from 29 August 201 1 to the restart of the Article 32 hearing is
challenged below, see Argument, Part A.4.j-l, in?ra, this subsection only challenges that portion of the Convening
Authority?s 29 August 201 1 memorandum that excludes the time period from 10 August 201 1 to the date of the
memorandum.

58

25991

again related, without elaboration, that it was still ?continuing? to work with the OCAs and that
the NSA review of the unclassi?ed CID case ?le was still ?ongoing.? Id. The Government
added now in its ?fth request that the CID was conducting a secondary review of the derivative
classi?cation of the forensic reports and that it was ?continuing? to work with the FBI and DSS
to receive authorization to disclose the relevant portions of any case ?les. Id. at 1-2. Finally, the
Government stated the following in its ?Request? section of its ?fth request for delay:

Given the complexity of this case, stemming from the number of classi?cation
authorities involved and the volume of information requiring classi?cation
reviews, the prosecution requests a reasonable delay of restarting the Article 32
investigation . . . . The prosecution has actively and diligently worked to resolve
all outstanding issues to ensure timely release of all possible information to the
defense so their ability to represent and potentially defend their client will be in
no way impaired.

Id. at 2.

195. The Defense once again opposed the Government?s request for delay, reiterating its
position that any additional delay should not be excluded under R.C.M. 707(c) but should rather
be credited to the Government for speedy trial purposes. See 27 August 201 1 Email from Mr.
Coombs to COL Coffman Opposing the Government?s Request for Delay, Attachment 44.

196. The Convening Authority yet again approved the Government?s request for delay on 29
August 2011. See 29 August 2011 Memorandum Approving Government Request for Delay,
Attachment 45. This memorandum was quite plainly another cut-and-paste job, identical to the 5
July 2011 and 26 July 201 1 approval memoranda in all respects save the updated dates.

197. For many of the same reasons articulated above, see Argument Part A.4.e-h, the Convening
Authority once again abused his discretion in excluding the period from 10 August 2011 to 29
August 2011 from the R.C.M. 707 speedy trial clock.

198. Yet again, the Government provided no explanation whatsoever for why the classi?cation
review process had still not been completed 435 days after the process began on 17 June 2010
and 454 days after PFC Manning was placed into pretrial con?nement. The Government merely
repeated that it was ?continuing? to work with the OCAS and that the review of the unclassi?ed
CID case ?le was ?ongoing.? 25 August 201 1 Government Request for Delay, Attachment 43.
In other words, as explained above, see Argument Part A.4.h, supra, the Government said
nothing about the progress had been made in the past 435 days, what remained to be done, and
approximately when the ?ongoing? tasks would be completed. Without this information, the
Convening Authority had no suf?cient basis to assess whether the Government was perfonning
these ?ongoing? tasks in a reasonably diligent manner and thus had no suf?cient basis to assess
whether the Government?s request for delay was reasonable. See acey, 26 M.J. at 425.

199. The new ?reasons? offered by the Government were equally unhelpful. While the

Government stated that it was ?continuing? to work with the FBI and DSS, for example, it failed
to specify why the work with the FBI and DSS was not already completed after 454 days of

59



pretrial con?nement for PFC Manning, when the Government began to work with the FBI and
DSS, and how much more work needed to be done. Accordingly, the Government provided the
Convening Authority with no information to assess whether the Government had been
reasonably diligent in working with the FBI and DSS. Similarly, the Government?s lack of
explanation with respect to the CID secondary review process left the same questions lingering.

200. Additionally, the Govemment?s statement towards the end of the memorandum that yet
further delay was necessary ?[g]iven the complexity of this case, stemming from the number of
classi?cation authorities involved and the volume of information requiring classi?cation
reviews? provides no support for the Convening Authority?s exclusion decision. 25 August 2011
Government Request for Delay, Attachment 43. It is important to note that the Government
offered no elaboration of what it meant by ?complexity,? ?the number of classi?cation
authorities involved? and ?the volume of information requiring classi?cation reviews.? Id. The
statement has two potential implications: coordination with the number of classi?cation
authorities involved made this case complex; and (ii) the volume of information requiring
classi?cation reviews made this case complex. Without any elaboration, neither potential
implication is a valid reason for further delay.

201. In regards to the coordination with the number of classi?cation authorities, the Government
did not specify how many classi?cation authorities were involved and what the coordination
with those classi?cation authorities entailed. Without elaboration, therefore, it amounts to a
contention that the mere fact that the Government has to coordinate with several different OCAs
makes the requested delay reasonable. But such a contention is meritless, however, since ?the
need to obtain crucial evidence in the custody of another agency of the United States is a
common problem and therefore associated delay does not qualify for exclusion from the 120-day
rule as a ?delay for good cause.?? Kuelker, 20 M.J. at 716.

202. With respect to the volume of information requiring classi?cation reviews, it bears
repeating that the length of the completed OCA classi?cation reviews belies the contention that
this process was as onerous as the Government represents. As mentioned above, see Argument,
Part A.4.e, supra, of the ten OCA classi?cation reviews provided to the Defense by the
Government, only three were over twelve pages in length. Six of the classi?cation reviews were
four pages or less in length. The Government?s explanation does not address why the
classi?cation reviews of ?the volume of information requiring classi?cation reviews,? if as
substantial as the Government asserts, yield as little as a few pages in results. Perhaps the
Government could have explained why a classi?cation review of a large volume of information
might yield only a few pages of results. But that is entirely beside the point. The important and
undeniable fact is the Government failed to provide any such explanation, and that the
Convening Authority was therefore without such an explanation when he approved the
Govemment?s ?fth request for delay.

203. Finally, the Govemment?s assertion that it has been ?actively and diligently? been working,
25 August 2011 Government Request for Delay, Attachment 43, is utterly meaningless. In
effect, it amounts to a plea along the following lines: ?Trust us. We?ve been working really hard.
Diligently too. Don?t worry about a thing because we?ve de?nitely been reasonably diligent.?
For one thing, nothing in R.C.M. 707 or within the realm of common sense would suggest that

60

25993

the Government can show that it has been reasonably diligent simply by saying that it has been
reasonably diligent. Since the Government has the burden of proof on a speedy trial motion, see
Burden of Persuasion and Burden of Proof, supra, it cannot be that the Government can simply
assert ?we?ve been diligently working? and that is the end of the matter.

204. For another thing, the fact that the Government resorted to making such a meaningless,
self-serving statement is yet further evidence that the Government has not been reasonably
diligent. If the Govemment had really been actively and diligently processing this case, it
wouldn?t need to say so; it could just impress the Convening Authority by stating in detail all of
the tasks necessary to complete the classi?cation review process, all the tasks that had already
been done, and all of the tasks that still needed to be completed. Of course, the Govemment?s
requests for delay are worlds apart from requests containing such impressive detail. Indeed, if
the Government had really been actively and diligently processing this case, it wouldn?t need to
make a ?fth request for delay 454 days after PFC Manning was placed in pretrial con?nement.
Once again, it seems that the Government requested further delay for the simple reason that it
was not yet ready to proceed. Accordingly, the Convening Authority abused his discretion in
approving the request. See Ramsey, 28 M.J. at 373.

205. Moving to the Convening Authority?s approval memorandum, the Convening Authority
offered no new reasons for delay. Rather, it simply regurgitated the same nonsense about
?ongoing national security concerns and law enforcement without any
elaboration whatsoever about what that phrase meant and how it made the requested delay
reasonable. Since no new reasons were articulated to justify the period of delay from 10 August
2011 to 29 August 201 1, no new reasons need be articulated here to show why the Convening
Authority?s approval of the Govemment?s ?fth request for delay was a mere rubber stamp and,
therefore, a patent abuse of discretion. Accordingly, the Defense simply relies on the arguments
against the 5 July 2011 and 27 July 2011 approval memoranda stated above. See Argument, Part
A.4.g-h, supra. It suf?ces to say that the rehashing of an obviously insuf?cient explanation of
the reasons why the Convening Authority determined the period of delay to be reasonable is an
even stronger case of an abuse of discretion than it was to provide that insuf?cient explanation
the ?rst time.

206. For these reasons, the Convening Authority abused his discretion in excluding the period of
time between 10 August 201 1 and 29 August 2011. When these 20 days that were erroneously
excluded are added to the 103 days that unquestionably count against the R.C.M. 707(a) 120-day
speedy trial clock and the 10 days that were clearly improperly excluded by LTC Almanza, the
Government failed to arraign PFC Manning within 120 days of the imposition of restraint.
Therefore, the Government violated PFC Manning?s R.C.M. 707 speedy trial rights.

j. 29 August 2011 to 14 October 2011

207. The Convening Authority similarly abused his discretion in approving the Govemment?s
sixth request for delay and excluding the period from 29 August 2011 to 14 October 2011.16 The

'6 This subsection actually challenges two exclusion decisions of the Convening Authority: the 28 September 201 1
approval of the Govemment?s sixth request for delay and the 14 October 201 1 excludable delay memorandum. The
14 October 201 1 excludable delay memorandum excluded the period from I5 September 201 1 to 14 October 201 1.

61

25994

Government yet again failed to provide a suf?cient explanation of why it was reasonable to grant
further delay in the commencement of the Article 32 hearing, and the Convening Authority once
again failed to articulate the reasons why the excluded delay was reasonable.

208. The Govemment?s sixth request for delay, ?led on 26 September 2011, was a virtual
carbon copy of its ?fth request for delay. See 26 September 2011 Govemment Request for
Delay, Attachment 46. Like its prior requests, the sixth request represented that further delay
was necessary because the Government had still not received the authority necessary to disclose
classi?ed and unclassi?ed evidence to the Defense. See id at 1. The Government was still
?continuing? to work with the OCAs regarding the classi?cation reviews and with the NSA
regarding the unclassi?ed CID case ?le. Id. The Government was also still working with the
FBI and DSS, and it represented that it had just now started to review the FBI and DSS ?les for
discoverable information. See id. Finally, the Government repeated verbatim the two line
phrase that was contained in its ?fth request for delay:

Given the complexity of this case, stemming from the number of classi?cation
authorities involved and the volume of information requiring classi?cation
reviews, the prosecution requests a reasonable delay of restarting the Article 32
investigation . . . . The prosecution has actively and diligently worked to resolve
all outstanding issues to ensure timely release of all possible information to the
defense so their ability to represent and potentially defend their client will be in
no way impaired.

Id. at 2.

209. The Defense opposed the Govemment?s sixth request for delay on 27 September 2011. See
27 August 2011 Email from Mr. Coombs to COL Coffman Opposing the Govemment?s Request
for Delay, Attachment 47. The Defense reiterated its position that any delay should not be
excluded under R.C.M. 707(c), but rather should be credited to the Government for speedy trial
purposes. Id.

210. The next day, the Convening Authority approved the Govemment?s sixth request for delay.
See 28 September 2011 Memorandum Approving Government Request for Delay, Attachment
48. With the exception of changed dates, this approval memorandum was identical to the
Convening Authority?s approval of the Govemment?s ?fth request for delay.

See 14 October 201 1 Excludable Delay Memorandum, Attachment 49. However, the only thing identi?ed in the 14
October 201 1 excludable memorandum that was not identi?ed in the 10 August 201 1 excludable delay
memorandum is the Government?s sixth request for delay. Therefore, it makes sense to consider the approval of the
Govemment?s sixth request for delay and the propriety of the 14 October 201 excludable delay memorandum in the
same subsection.

Additionally, the 28 September 201 approval of the Govemment?s sixth request for delay purports to exclude the
period from 22 April 201 1 to the restart of the Article 32 investigation. See 28 September 201 Memorandum
Approving Government Request for Delay, Attachment 48. However, since the exclusion of the period from 22
April 201 to 29 August 201 I is challenged above, see Argument, Part A.4.e-i, supra, and the exclusion ofthe
period from 14 October 201 to the restart of the Article 32 investigation is discussed elsewhere, see Argument, Part
A.4.k-l, infra, this subsection only challenges the portion of the 28 September 201 1 approval memorandum that
excludes the period from 29 August 201 1 to 14 October 201 l.

62

25995

21 1. The Convening Authority issued another excludable delay memorandum on 14 October
2011, in which the period from 15 September 2011 to 14 October 2011 was found to be
excludable delay under R.C.M. 707(c). See 14 October 201 1 Excludable Delay Memorandum,
Attachment 49. The basis for the excludable delay identi?ed in the 14 October 2011
memorandum was virtually identical to the 10 August 201 1, 17 June 201 1, and 12 May 2011
excludable delay memoranda. In full, the ?Basis of Delay? section read as follows:

The period of excludable delay is reasonable based on the following extensions,
defense requests, responses, and the facts and circumstances of this case:

a. Original Classi?cation Authorities? (OCA) reviews of classi?ed information.
b. OCA consent to disclose classi?ed information.

c. Defense Request for Results of the Govemment?s Classi?cation Reviews by
the OCA, dated 26 August 2010 (enclosed).

d. Defense Request for Appropriate Security Clearances for the Defense Team
and Access for PFC Manning, dated 3 September 2010 (enclosed).

e. Government Request for Delay of Article 32 Investigation, dated 26 September
2011 (enclosed).

Id.

212. For many of the same reasons articulated above, see Argument, Part A.4.e-i, supra, the
Convening Authority once again abused his discretion in approving the Govemment?s sixth
request for delay and excluding the time period from 29 August 201 1 to 14 October 201 1.

213. Since the Govemment?s sixth request for delay was nearly indistinguishable from its ?fth
request for delay, the attacks levied above at the ?fth request, see Argument, Part A.4.i, supra,
are equally applicable here and need not be regurgitated. As always, the Government provided
no explanation whatsoever for why the classi?cation review process had still not been completed
467 days after the process began on 17 June 2010 and 486 days after PFC Manning was placed
into pretrial con?nement. As explained above, see Argument Part A.4.h, supra, the Government
said nothing about the progress made in the past 467 days, what remained to be done, and
approximately when the ?ongoing? tasks would be completed. Without this information, the
Convening Authority had no suf?cient basis to assess whether the Government was performing
these ?ongoing? tasks in a reasonably diligent manner and thus had no suf?cient basis to assess
whether the Govemment?s request for delay was reasonable. See Facey, 26 MJ. at 425. The
Government also provided no explanation of why it was just now, 486 days after PFC Manning
had been placed into pretrial con?nement, starting to review the FBI and DSS case ?les.

214. The Govemment?s repetition of its statements towards the end of the memorandum that yet
further delay was necessary ?[g]iven the complexity of this case, stemming from the number of

63



classi?cation authorities involved and the volume of information requiring classi?cation
reviews? and that the Government was ?actively and diligently" working was as pointless in its
26 September 201 1 request as it was in its 25 August 201 I request. Once again, the Government

93 66

offered no elaboration of what it meant by ?complexity, the number of classi?cation
authorities involved,? ?the volume of information requiring classi?cation reviews? or of how it
was working ?actively and diligently.? Id. As nothing changed in the Government?s use of these
phrases, the arguments against these phrases in the Govemment?s ?fth request for delay are fully
applicable here. See Argument, Part A.4.i, supra. Yet again, it seems that the Government
requested further delay for the simple reason that it was not yet ready to proceed. Accordingly,
the Convening Authority should not have approved the request. See Ramsey, 28 M.J. at 373.

215. Not to be outdone, the Convening Authority?s approval memorandum and excludable delay
memorandum were as ?awed as ever. As the Convening Authority?s 28 September 201 1
approval memorandum was identical (save for the updated dates) to its 5 July 2011, 26 July

201 1, and 29 August 2011 approval memoranda, the various arguments against the Convening
Authority?s decision to approve yet another Government delay request need not be repeated. See
Argument, Part A.4.g?i, supra. If merely reciting, without any elaboration whatsoever, the
phrase ?ongoing national security concerns and law enforcement investigation(s)? wasn?t an
abuse of discretion the ?rst three times (which the Defense does not in any way concede), surely
doing it a fourth time in three months did constitute an abuse of discretion.

216. Likewise, as the Convening Authority?s excludable delay memorandum was identical in all
respects, except for the date of the Government request for delay, to the many excludable delay
memoranda that came before, the same arguments against these prior excludable delay
memoranda are fully applicable here. See Argument, Part A.4.e-i, supra. Once again, the
Convening Authority offered no reasons why the various items listed in the ?Basis of Delay?
section justi?ed yet another period of delay when PFC Manning had remained in pretrial
con?nement for 504 days as of 14 October 2011.

217. Finally, neither the 28 September 2011 approval memorandum nor the 14 October 201 1
excludable delay memorandum made any mention that the Government was tardy in providing
its update in its sixth request for delay. In the Convening Authority?s 29 August 2011
memorandum approving the Govemment?s ?fth request for delay, the Convening Authority
stated: ?The prosecution is required to provide me an update no later than 23 September 2011.?
29 August 2011 Memorandum Approving Government Request for Delay, Attachment 45. The
Govemment?s update was contained in its sixth request for delay, which was ?led three days
after the Convening Authority?s deadline. 26 September 2011 Government Request for Delay,
Attachment 46. As the Govemment?s diligence (or lack thereof) is an issue of paramount
importance in determining whether a particular period of delay is reasonable excludable delay, it
is hard to fathom how the Convening Authority neglected to even mention the Government?s
untimeliness in complying with the update deadline. This serves as yet additional evidence that
the Convening Authority had long ago given up on any pretense of being an independent arbiter
of the necessity and reasonableness of the requested delays, and had morphed into a mere rubber
stamp for all of the Govemment?s many delay requests.

64

25997

218. For these reasons, the Convening Authority abused his discretion in excluding the period of
time between 29 August 2011 to 14 October 2011. When these 47 days that were erroneously
excluded are added to the 103 days that unquestionably count against the R.C.M. 707(a) 120-day
speedy trial clock and the 10 days that were clearly improperly excluded by LTC Almanza, the
Government failed to arraign PFC Manning within 120 days of the imposition of restraint.
Therefore, the Government violated PFC Manning?s R.C.M. 707 speedy trial rights.

k. 14 October 2011 to 16 November 2011

219. The Convening Authority also abused his discretion in approving the Govemment?s
seventh request for delay and excluding the period between 14 October 201 1 and 16 November
201 1.17 Not changing a thing about the lack of detail provided in the past, the Government
provided no explanation of why it still was not ready for the Article 32 investigation, 517 days
after PFC Manning was placed into pretrial con?nement. Moreover, the Convening Authority
once again punted its responsibility to articulate the reasons why the excluded delay was
reasonable.

220. The Government made its seventh request to delay the Article 32 hearing on 25 October
201 1. See 25 October 201 1 Government Request for Delay, Attachment 50. The reasons for the
requested delay were the same as ever: the Government still needed more time to obtain
authority to release evidence and information to the defense. See id. at 1. The Government once
again explained that it was still just ?continuing? to work with the OCAs. Likewise, the
Government again repeated verbatim the two line phrase that was contained in its ?fth request
for delay:

Given the complexity of this case, stemming from the number of classi?cation
authorities involved and the volume of information requiring classi?cation
reviews, the prosecution requests a reasonable delay of restarting the Article 32
investigation . . . . The prosecution has actively and diligently worked to resolve
all outstanding issues to ensure timely release of all possible information to the
defense so their ability to represent and potentially defend their client will be in
no way impaired.

Id. at 2-3.

'7 This subsection actually challenges two exclusion decisions of the Convening Authority: the 27 October 201 I
approval of the Govemment?s seventh request for delay and the 16 November 201 I excludable delay memorandum.
The 16 November 201 1 excludable delay memorandum excluded the period from 14 October 201 I to 16 November
201 1. See 16 November 201 1 Excludable Delay Memorandum, Attachment 53. Additionally, the 27 October 201 1
approval of the Govemment?s seventh request for delay purports to exclude the period from 22 April 20] 1 to the
restart of the Article 32 investigation. See 28 September 201 1 Memorandum Approving Government Request for
Delay, Attachment 52. However, since the exclusion ofthe period from 22 April 201 1 to 14 October 201 1 is
challenged above, see Argument, Part A.4.e-j, supra, and the exclusion of the period from 16 November 201 1 to the
restart of the Article 32 investigation is discussed below, see Argument, Part A.4.l, in?-a, this subsection only
challenges the portion of the 27 October 201 I approval memorandum that excludes the period from 14 October
2011 to 16 November 201 1.

65



25998

221. The Defense opposed this request for delay on the same day. See 25 October 2011 Email
from Mr. Coombs to COL Coffman Opposing Government Request for Delay, Attachment 51.
In this email, the Defense repeated its previous position that any additional delay should not be
excluded under R.C.M. 707(c) but should be credited to the Government for speedy trial
purposes. Id.

222. The Convening Authority approved the Government?s seventh request for delay on 27
October 2011. See 27 October 2011 Memorandum Approving Government Request for Delay,
Attachment 52. With the exception of changed dates, this approval memorandum was identical
to the Convening Authority?s approval of the Govemment?s sixth request for delay.

223. On 16 November 2011, the Convening Authority issued yet another excludable delay
memorandum. See 16 November 2011 Excludable Delay Memorandum, Attachment 53. The
basis for the excludable delay identi?ed in the 16 November 2011 memorandum was virtually
identical to the 14 October 2011, 10 August 201 1, 17 June 2011, and 12 May 2011 excludable
delay memoranda. In full, the ?Basis of Delay? section read as follows:

The period of excludable delay is reasonable based on the following extensions,
defense requests, responses, and the facts and circumstances of this case:

a. Original Classi?cation Authorities? (OCA) reviews of classi?ed information.
b. OCA consent to disclose classi?ed information.

c. Defense Request for Results of the Govemment?s Classi?cation Reviews by
the OCA, dated 26 August 2010 (enclosed).

(1. Government Request for Delay of Article 32 Investigation, dated 27 October
2011 (enclosed).

Id.

224. For the same reasons articulated above, see Argument, Part A.4.e-j, supra, the Convening
Authority once again abused his discretion in approving the Govemment?s seventh request for
delay and excluding the time period from 14 October 2011 to 16 November 2011.

225. Since the Government?s seventh request for delay was nearly indistinguishable from its
?fth and sixth requests for delay, the attacks levied above at the ?fth and sixth requests, see
Argument, Part A.4.i-j, supra, are equally applicable here. The Government yet again failed to
provide any explanation whatsoever for why the classi?cation review process had still not been
completed 498 days after the process began on 17 June 2010 and 517 days after PFC Manning
was placed into pretrial con?nement. As explained above, see Argument Part A.4.h, supra, the
Government said nothing about what progress had been made in the past 498 days, what
speci?cally remained to be done, and approximately when the ?ongoing? tasks would be
completed. Without this information, the Convening Authority had no suf?cient basis to assess
whether the Government was performing these ?ongoing? tasks in a reasonably diligent manner

66



and thus had no suf?cient basis to assess whether the Govemment?s request for delay was
reasonable. See Facey, 26 M.J. at 425.

226. The Government?s statements towards the end of the memorandum that yet further delay
was necessary ?[g]iven the complexity of this case, stemming from the number of classi?cation
authorities involved and the volume of information requiring classi?cation reviews? and that the
Government was ?actively and diligently? working were as meaningless as ever. Once again, the
Government offered no elaboration of what it meant by ?complexity,? ?the number of
classi?cation authorities involved,? ?the volume of information requiring classi?cation reviews?
or of how it was working ?actively and diligently.? As nothing changed in the Government?s use
of these phrases, the arguments against these phrases in the Govemment?s ?fth request for delay
are fully applicable here. See Argument, Part A.4.i, supra. Yet again, it seems that the
Government requested further delay for the simple reason that it was not yet ready to proceed.
Accordingly, the Convening Authority should not have approved the request. See Ramsey, 28
M.J. at 373.

227. For its part, the Convening Authority?s approval memorandum and excludable delay
memorandum were as bare-bones as imaginable. As the Convening Authority?s 27 October
2011 approval memorandum was identical (save for the updated dates) to its 5 July 2011, 26 July
2011, 29 August 2011, and 28 September 2011 approval memoranda, the various arguments
against the Convening Authority?s decision to approve yet another Government delay request
need not be repeated. See Argument, Part A.4.g-j, supra. If merely reciting, without any
elaboration whatsoever, the phrase ?ongoing national security concerns and law enforcement
investigation(s)? wasn?t an abuse of discretion the ?rst four times (which the Defense does not in
any way concede), surely doing it a ?fth time in four months did constitute an abuse of
discretion.

228. Likewise, as the Convening Authority?s 16 November 2011 excludable delay memorandum
was identical in all respects, except for the date of the Government request for delay, to the many
excludable delay memoranda that came before, the same arguments against these prior
excludable delay memoranda are fully applicable here. See Argument, Part supra. Once
again, the Convening Authority offered no reasons why the various items listed in the ?Basis of
Delay? section justi?ed yet another period of delay when PFC Manning had remained in pretrial
con?nement for 537 days as of 16 November 2011.

229. For these reasons, the Convening Authority abused its discretion in excluding the period of
time between 14 October 2011 to 16 November 2011. When these 34 days that were
erroneously excluded are added to the 103 days that unquestionably count against the R.C.M.
707(a) 120-day speedy trial clock and the 10 days that were clearly improperly excluded by LTC
Almanza, the Government failed to arraign PFC Manning within 120 days of the imposition of
restraint. Therefore, the Government violated PFC Manning?s R.C.M. 707 speedy trial rights.

I. 16 November 2011 to 15 December 2011

230. Finally, the Convening Authority abused his discretion in approving the Govemment?s
eighth request for delay and excluding the period between 16 November 2011 and 15 December

67

26000

2011.18 The Government once again provided no explanation of why it still was not ready for
the Article 32 investigation, 537 days after PFC Manning was placed into pretrial con?nement.
Moreover, the Convening Authority again abdicated its responsibility to articulate the reasons
why the excluded delay was reasonable.

231. The Government made its eighth and ?nal request for delay on 16 November 2011. See 16
November 2011 Government Request to Restart Article 32 Investigation, Attachment 54. The
Government explained that it ?has continued to work diligently to resolve the . . . issues that
served as the basis for the delay of the Article 32 investigation? but nonetheless related that it
was still not ready to proceed with the Article 32 investigation. Id. at 1. The Government
related that yet further delay was necessary for two reasons. See id. at 2. First, the Government
was still working with an OCA to obtain one ?nal classi?cation review. Id. Second, the
Government explained that the command required 30 days to execute OPLAN BRAVO, a
prerequisite to the Article 32 hearing. Id.

232. The Defense opposed the Government?s eighth request for delay the same day it was made.
See 16 November 2011 Email from Mr. Coombs to COL Coffman Opposing Government
Request for Delay, Attachment 55. The Defense email explained that Mr. Coombs had sent an
email to then-CPT Fein on Monday, 14 November 2011, in which Mr. Coombs requested that
the Government begin its OPLAN BRAVO preparations so that the Article 32 hearing could
commence on 12 December 2011. Id. The email went on to explain that based on the
Government?s most recent request for delay, it appeared that the Government had done nothing
from 14 November 2011 to 16 November 2011. Id. The Defense pointed out that the
Government failed to provide the Convening Authority ?with any justi?cation for the arbitrary
30-day-requirement in order to complete its OPLAN Id. Finally, the Defense
objected to the Government?s request to exclude the time period of 16 November 201 1 to 16
December 2011 under R.C.M. 707(c) and requested instead that the delay be credited against the
Government for speedy trial purposes. Id. I

233. Later that same day, the Convening Authority approved the Government?s eighth request
for delay, excluding the time period from 22 April 2011 to 16 December 2011 under R.C.M.
707(c). See 16 November 2011 Memorandum Approving Government Request for Delay,
Attachment 56. The Convening Authority?s decisional process, to the extent that it can be
gleaned from this memorandum, is captured in full in the following two sentences: reviewed
both the prosecution?s request and its enclosures and the defense?s response. 2. This request is:
(signature) approved.? Id.

'8 This subsection actually challenges two exclusion decisions of the Convening Authority: the I6 November 201
approval of the Govemment?s eighth request for delay and the 3 January 2012 excludable delay memorandum. The
3 January 2012 excludable delay memorandum excluded the period from 16 November 201 to I5 December 201 1.
See 3 January 2012 Excludable Delay Memorandum, Attachment 60. Additionally, the 16 November 201 1 approval
of the Govemment?s eighth request for delay purports to exclude the period from 22 April 201 I to 16 December

201 I. See I6 November 201 Memorandum Approving Government Request for Delay, Attachment 56. However,
since the exclusion of the period from 22 April 201 1 to 16 November 201 1 is challenged above, see Argument, Part
A.4.d-k, supra, this subsection only challenges the portion of the 16 November 201 1 approval memorandum that
excludes the period from 16 November 201 1 to 16 December 201 1.

68



234. The Convening Authority issued its last excludable delay memorandum on 3 January 2012.
See 3 January 2012 Excludable Delay Memorandum, Attachment 60. The memorandum?s
?Basis of Delay? section was as familiar as ever:

The period of excludable delay is reasonable based on the following extensions,
defense requests, responses, and the facts and circumstances of this case:

a. Original Classi?cation Authorities? (OCA) reviews of classified information.
b. OCA consent to disclose classified information.

c. Defense Request for Results of the Govemment?s Classification Reviews by
the OCA, dated 26 August 2010 (enclosed).

d. Government Request for Delay of Article 32 Investigation, dated 10 November
2011 (enclosed).

Idl?)

235. For the same reasons articulated above, see Argument, Part A.4.e-k, supra, the Convening
Authority once again abused his discretion in approving the Government?s seventh request for
delay and excluding the time period from 16 November 2011 to 15 December 2011.

236. As far as the Government request goes, it once again offers no explanation of the reasons
why further delay would be reasonable. With respect to the outstanding OCA classification, the
Government just states that it was ?continuing? to work with the OCAS and that one
classification request was still outstanding. 16 November 2011 Government Request to Restart
Article 32 Investigation, Attachment 54, at 2. Evidently, the Government was operating under
the assumption that because it was not yet ready for the Article 32 investigation, the Convening
Authority could simply exclude the time period under R.C.M. 707(c). This is a ?atly incorrect
understanding of how the R.C.M. 707(c) exclusion process operates. See Ramsey, 28 MJ. at 373
however, a recess or continuance is requested solely because the Government is not
prepared to go forward with evidence on the merits, such time should not be excluded from its
speedy-trial accountability?).

237. The Government?s claim that it has been ?diligently? working on the processing of this
case, 16 November 2011 Government Request to Restart Article 32 Investigation, Attachment
54, at 1, borders on the absurd. At the time of the request, 537 days had passed since PFC
Manning was placed into pretrial con?nement. 518 days had passed since the Government
claims to have begun the classi?cation review process. The completed classi?cation reviews
were hardly Tolstoy novels, some spanning only a few pages. And yet the classification review
process had still not been finished. Something doesn?t add up. That ?something? is the

'9 The Convening Authority?s reference to the 10 November 201 1 Government Request for delay is likely an error.
The Defense is not aware of any 10 November 201 1 Government request for delay. The Govemment?s eighth
request for delay was made on 16 November 20] 1, not 10 November 20] 1. Therefore, the Convening Authority
was likely referring to the Govemment?s 16 November 20] 1 request for delay.

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Govemment?s unsupported and grossly self-serving claims of working ?diligently? throughout
the process.

238. With respect to the 30 day period necessary to implement OPLAN BRAVO, the
Government offered absolutely no support for its claim that 30 days were needed to put the plan
into effect. The arbitrariness of the 30 day period was pointed out to the Convening Authority by
the Defense, to no avail. The unexplained extra 30 day period is perfectly consistent with the
likelihood that the Government was simply not ready for the Article 32 hearing in mid-
November but felt like it would be by mid-December. Of course, the mere fact the Government
is not ready to proceed cannot itself justify excluding that period of delay. See Ramsey, 28 MJ.
at 373.

239. The Convening Authority?s exclusion decisions were no better. With respect to the
approval of the Govemment?s eighth request for delay, the Convening Authority offered even
less of an explanation than its usual non-explanation of the reasons for the delay. The
Convening Authority commendably scrapped the unelaborated nonsense about the ?ongoing
national security concerns and law enforcement investigation(s)? that plagued the Convening
Authority?s 5 July 2011, 26 July 2011, 29 August 2011, 28 September 2011, and 27 October
2011 approval memoranda. In its place, the Convening Authority offered . . . well, nothing. Not
one reason that the delay was approved. The Convening Authority?s ?decision? to approve is
contained in the following two sentences: reviewed both the prosecution?s request and its
enclosures and the defense?s response. 2. This request is: (signature) approved.? 16 November
2011 Memorandum Approving Government Request for Delay, Attachment 56. No explanation
of reasons was given. This complete failure to provide any reasons whatsoever (not even bad
ones) for approving the Govemment?s eighth request for delay clearly constitutes an abuse of
discretion. See R.C.M. 707(c) discussion decision granting the delay, together with
supporting reasons and the dates covering the delay, should be reduced to writing.?2? (emphasis
supplied)

240. If more were needed to torpedo the Convening Authority?s approval of the Govemment?s
eighth request for delay, the approval was issued on the same day as the request was made. This
incredibly quick turnaround time belies any claim that the Convening Authority gave this request
the requisite independent determination of good cause for the delay, see Lazauskas, 62 MJ. at 45
(Baker, ., concurring), and con?rms the Defense's belief that the Convening Authority had long
been a mere rubber stamp for the Govemment?s many delay requests. To truly put the
Convening Authority?s blazingly fast approval into proper context, consider all that happened on
16 November 2011: the Convening Authority issued an excludable delay memorandum for the
period between 14 October 201 1 to 16 November 201 1; the Government requested that the
Article 32 hearing be restarted on 16 December 2011; the Defense countered that the Article 32
hearing should recommence on 12 December 2011; the Convening Authority decided that the
Article 32 hearing would commence on 16 December 2011; the Government made its eighth

20 The discussion to R.C.M. 707(c) recognizes that it may not always be practicable to reduce the decision to grant
or deny a reasonable delay to writing. Although the discussion section does not provide an example of when it
would not be practicable, the Defense could envision times where military exigencies may prevent reducing the
decision to writing).





request for delay; the Defense opposed; the Convening Authority granted the delay; and the
Convening Authority issued special instructions to the Article 32 IO. This is a lot for any
Convening Authority to tackle in one day. When coupled with the several long periods of
Government inactivity, see Facts, Part A.4, supra, and the Government?s overall incredibly
lethargic processing of this case, this ?urry of activity is particularly unmistakable. Given all of
the tasks that the Convening Authority accomplished on 16 November 2011, it seems rather
dubious that the Convening Authority gave any careful thought to the eighth Government delay
request, which arrived the same day it was approved.

24]. With respect to the Convening Authority?s 3 January 2012 excludable delay memorandum,
it was decidedly more of the same. As the 3 January 2012 excludable delay memorandum was
identical in all respects, except for the date of the Government?s request for delay, to the many
excludable delay memoranda that came before, the same arguments against these prior
excludable delay memoranda are fully applicable here. See Argument, Part A.4.e-k, supra.
Once again, the Convening Authority offered no reasons why the various items listed in the
?Basis of Delay? section justi?ed yet another period of delay when PFC Manning had already
languished in pretrial con?nement for 585 days as of 3 January 2012.

242. Finally, neither the Convening Authority?s approval of the Government?s eighth request for
delay nor its 3 January 2012 excludable delay memorandum gave any consideration to the
Defense?s opposition arguments. Particularly troubling, the Convening Authority made no
mention whatsoever of the Defense?s position that the 30 day request to implement OPLAN
BRAVO was wholly arbitrary. The Convening Authority?s decision to forgo any express
consideration of the Defense?s legitimate concerns is yet further evidence that the Convening
Authority was a mere rubber stamp of any and all Government delay requests.

243. For these reasons, the Convening Authority abused his discretion in excluding the period of
time between 16 November 2011 and 15 December 2011. When these 30 days that were
erroneously excluded are added to the 103 days that unquestionably count against the R.C.M.
707(a) 120-day speedy trial clock and the 10 days that were clearly improperly excluded by LTC
Almanza, the Government failed to arraign PFC Manning within 120 days of the imposition of
restraint. Therefore, the Government violated PFC Manning?s R.C.M. 707 speedy trial rights.

In. The Sum of the Many Exclusions

244. Of the 635 days from the day after PFC Manning was placed into pretrial con?nement up
to and including the date PFC Manning was arraigned, see R.C.M. 707(b)(1), 532 days have
been excluded by the Convening Authority and the Article 32 IO. This Motion does not
challenge 205 days of those excluded days. See Argument, Part A.3, supra. Subtracting those
205 unchallenged days from the 635 total days, the Convening Authority and the Article 32 IO
excluded 327 days of the 430 remaining days. Those exclusions amount to a total of over 76%
of the 430 days. In practical terms, the Convening Authority and the Article 32 IO has excluded
from the R.C.M. 707 speedy trial clock over 76% of the time that the Defense contends should
be counted against that clock. It bears repeating that the Government has the burden of proof
with respect to this Motion. The Government, in other words, must prove that the facts and

71



circumstances of this case show that excluding over 76% of the contested time during which
PFC Manning was in pretrial con?nement was reasonable.

245. If all of the challenged exclusions are upheld, this Court will have countenanced the
exclusion of over 76% of days from the R.C.M. 707 speedy trial clock. This speedy trial
provision was meant to address and protect the accused?s constitutional and statutory speedy trial
rights. Thompson, 46 M.J. at 475. If the exclusion of over 76% of days from the speedy clock is
upheld, the speedy trial protections provided by R.C.M. 707 would be effectively eviscerated.
See United States v. Dooley, 61 M.J. 258, 264 (C.A.A.F. 2005) (quoting and agreeing with
military judge?s concern that ?the plain meaning of R.C.M. 707 may be thwarted if trial [was]
allowed? in that case after ?inordinate delay?); cf Bray, 52 M.J. at 662 (lamenting that the
Govemment?s interpretation of a particular provision of R.C.M. 707 ?would emasculate the
speedy-trial provisions of R.C.M.

246. In Bell, a case involving an Article 10 violation premised upon a delay of 199 days between
preferral of charges and trial, the Air Force Court of Military Review explained the ?ndings of
the military judge:

The military judge found, ?there has been a signi?cant delay in the processing of
this case and the delay is by and large without explanation.? He further found that
the delay approached being ?callously indifferent.?

17 M.J. at 579. These words could not be more apt if spoken about this very case. To make
matters worse, the Convening Authority, by rubber stamping every single one of the
Govemment?s eight delay requests, and the Article 32 10, by excluding time that he simply did
not work on the case with no legal basis for that exclusion, joined the Government in its callous
indifference to PFC Manning?s speedy trial rights. Whatever the protections of R.C.M. 707 may
mean in the abstract, they must mean, if they mean anything at all, more than what PFC Manning
was afforded in this case.

247. Therefore, in order to safeguard the protections that R.C.M. 707 is supposed to provide an
accused and that were completely gutted by the Convening Authority?s rubber stamp approval of
any and all Government requests for delay, this Court must ?nd that some or all of the
challenged exclusions constituted an abuse of discretion. And if even just one or two of those
periods was improperly excluded (and the Defense maintains that all challenged periods were
improperly excluded), PFC Manning?s R.C.M. 707 speedy trial rights have been violated.

5. Remedy: Dismissal With Prejudice

248. As mentioned above, see Legal Framework, Part A, supra, R.C.M. 707(d)(1) provides four
factors to be balanced in determining whether the dismissal of the affected charges shall be with
or without prejudice. Those four factors are ?the seriousness of the offense; the facts and
circumstances of the case that lead to dismissal; the impact of a re-prosecution on the
administration of justice; and any prejudice to the accused resulting from the denial of a speedy
trial.? R.C.M. 707(d)(l). The appropriate balance of those factors leads to the conclusion that

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only one remedy will suf?ce for the Government?s ?agrant disregard of PFC Manning?s R.C.M.
707 speedy trial rights: dismissal of all charges with prejudice.

249. With regard to the first factor, the charges against PFC Manning are concededly serious.
But the mere fact that the charges are serious in no way precludes dismissal with prejudice for a
violation of R.C.M. mandate. See, e. Bray, 52 M.J. at 660, 663 (dismissing charges
with prejudice for a R.C.M. 707 violation even where dismissed charge alleged accused raped a
5-year-old girl). Rather, the seriousness of the charges is but one factor to be considered in the
mix.

250. The remaining factors identified in R.C.M. 707(d)(l) all weigh heavily in favor of
dismissal with prejudice. The facts and circumstances that lead to dismissal are grave indeed.
The Government took 635 days to arraign PFC Manning after placing him in pretrial
con?nement. It took the Government 566 days after PFC Manning was placed into pretrial
confinement to make itself ready for the Article 32 hearing. To be sure, the Defense did request
some delay in order to conduct a R.C.M. 706 Board of PFC Manning. But the Defense?s request
was not a free pass to the Government to take it easy until the R.C.M. 706 Board completed its
examination. Rather, the Government had an obligation to process the case in a reasonably
diligent manner from the moment PFC Manning was placed into pretrial con?nement to the
moment PFC Manning was arraigned. Even after the R.C.M. 706 Board had run its course, the
Government needed to request a period of delay every month until the Article 32 hearing
commenced 566 days after PFC Manning was placed into pretrial confinement. Moreover, these
requests were wholly lacking in reasons showing why the requested delay was reasonable. The
facts and circumstances of the Government?s processing of this case show anything but
reasonable diligence. The Defense has found no reported case involving precisely what this case
involves: an inordinate period of delay coupled with the Government?s cavalier disregard of the
accused?s speedy trial rights. Therefore, this factor weighs in favor of dismissal with prejudice.

251. The ?impact of re-prosecution on the administration of justice? factor also weighs heavily
in favor of dismissal with prejudice. The Government will no doubt protest this contention
strongly, arguing that barring prosecution in this case would prevent the Government from
prosecuting the Soldier alleged to have perpetrated one of the largest leaks of U.S. information in
history. We?ve heard the ?this is such an important case? refrain before. However, the
Government must ?nally face reality: if the Government is deprived of the opportunity of
prosecuting PFC Manning, it will have no one to blame but itself for that result. Moreover, this
third factor is a two sided coin. ?[J]ustice is also frustrated when an accused is held in pretrial
con?nement for an unreasonably long time.? Proctor, 58 M.J. at 797. Justice has already been
irreparably frustrated by the inordinate Government delay in this case. Allowing the
Government a second bite at the apple after it has so completely dropped the ball in processing
this case in the ?rst go-round would only compound that frustration. See Dooley, 61 M.J. at 264
the military judge dismisses without prejudice and the Government decides to reprosecute
the accused, the remedy leads to further Therefore, this third factor also weighs heavily
towards dismissal of all charges with prejudice.

252. Finally, as argued below, see Argument, Part B.4, infra, PFC Manning has already suffered
substantial prejudice as a result of being denied his rights to a speedy trial. He suffered a long

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period of oppressive pretrial con?nement at the hands of the Quantico of?cials, being forced to
endure MAX custody, POI status, and Suicide Risk restrictions during his time there. PFC
Manning has suffered substantial anxiety and concern as a result of his pretrial con?nement.
Lastly, the preparation of PFC Manning?s defense has been prejudiced by the inordinate delay, as
the Govemment?s lack of diligence has likely led to the loss of evidence and has further
compounded the already staggering delay in bringing PFC Marming to trial. All of these aspects
of prejudice are discussed in much more detail below. See Argument, Part B.4, infra. For
present purposes, it suf?ces to say that PFC Manning has suffered a substantial amount of
prejudice to all three interests identi?ed by the Supreme Court in Barker. Therefore, this ?nal
factor also points strongly towards dismissal of the charges with prejudice.

253. In sum, three of the four R.C.M. 707(d)(l) factors clearly militate in favor of dismissal of
the affected charges with prejudice. Indeed, dismissal with prejudice is the only acceptable
remedy for the Government?s profound disregard for PFC Manning?s speedy trial rights.

254. Furthermore, where, as here, the accused?s constitutional or Article 10 speedy trial rights
have been violated, the only available remedy is dismissal with prejudice. See R.C.M. 707(d)(l
Kossman, 38 MJ. at 262 (explaining that the only remedy for an Article 10 violation is dismissal
of the affected charges with prejudice); see also Argument, Part B, infra (arguing that PFC
Manning?s Article 10 and Sixth Amendment rights to speedy trial have been violated).

255. For these reasons, this Court should dismiss all charges with prejudice, as PFC Manning?s
R.C.M. 707 speedy trial rights have been severely trampled upon.

B. The Government Violated PFC Manning?s Speedy Trial Rights Under Article 10
and the Sixth Amendment to the United States Constitution

256. The Government has also violated PFC Manning?s speedy trial rights under Article 10 and
the Sixth Amendment to the United States Constitution.? As of the date of this motion, PFC
Manning will have spent 845 days in pretrial con?nement before his trial commences. This
staggering period of delay is unquestionably facially unreasonable under the length of delay
factor, triggering the remainder of the Article 10 analysis. Moreover, the various excuses for this
monstrous delay that the Government may put forth are all red herrings, meant to detract from
the two undeniable truths that permeate this case: the Government has been dragging its feet in
the processing of this case from day one and the Government was inexcusably operating under a
profound misunderstanding of its bedrock discovery obligations for the ?rst 698 days of this
case. Additionally, the Defense made two genuine speedy trial requests early on in this odyssey,
and it has reiterated those requests on numerous occasions throughout the case. Finally, PFC
Manning has suffered severe prejudice to all three interests identi?ed by the Supreme Court in
Barker and the Court of Appeals for the Armed Forces in Cassia and Mizgala.

2' Since the Barker factors under the Sixth Amendment have been adopted by the Court of Appeals for the Armed
Forces as ?an apt structure for examining the facts and circumstances surrounding an alleged Article 10 violation,?
Mizgala, 61 M.J. at 127, to avoid unnecessary repetition, this section covers PFC Manning?s speedy trial claims
under the Sixth Amendment and Article 10.

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257. In sum, all four factors in the Article 10 procedural framework point unmistakably to the
conclusion that PFC Manning?s statutory and constitutional speedy trial rights have been
trampled upon with impunity. Under no stretch of the imagination could the Government?s
processing of this case be characterized as reasonably diligent. There is only one remedy for the
Govemment?s severe constitutional and statutory violations: dismissal of all charges with
prejudice.

1. Length of Delay

258. To date, PFC Manning has spent 845 days in pretrial con?nement. The 845 days PFC
Manning has already spent in pretrial con?nement dwarfs other periods of pretrial con?nement
that the Court of Appeals found to be facially unreasonable, and it is plainly suf?cient to trigger
the analysis into the remaining factors in the Article 10 framework. Indeed, the Defense has
found no reported military case involving a period of delay even close to the 845 delay in this
case.

259. The protections of Article 10 are triggered when the accused is placed in ?arrest or
con?nement.? 10 U.S.C. 810; see Schuber, 70 M.J. at 184. Article 10 was implicated in this
case when the Government placed PFC Manning in pretrial con?nement on 29 May 2010.
Moreover, Article 10?s protections last until the accused is tried. See Cooper, 58 M.J. at 49-60.
Currently, PFC Manning?s trial is scheduled to commence on 4 February 2013. Therefore, for
purposes of Article 10, PFC Manning will have been in ?arrest or con?nement? for a period of
983 days when his trial begins.?

260. This 852 day delay is clearly facially unreasonable. Applying the factors identi?ed by the
Schuber Court, the Defense concedes that the charged offenses are serious and that PFC
Manning was noti?ed of the charges against him. See 70 M.J. at 188. Additionally, while this
case may be more complex than the run?of?the-mill prosecution, see id., much of that complexity
has been created by the Government?s expansive charging decision. See, Appellate Exhibit
XC (arguing that Government was relying on an untenable expansive theory of ?exceeds
authorized access?); Appellate Exhibit XCII (same); Appellate Exhibit CLXX (same); Appellate
Exhibit CXCVII (same); Appellate Exhibit LXII (arguing that Govemment?s expansive
interpretation of the term indirectly was untenable and, as applied in this case, rendered Article
104 unconstitutionally vague and substantially overbroad). PFC Manning?s Article 10 rights
cannot be made dependent upon the unlucky circumstance of having an imaginative prosecutor
assigned to his case. See Argument, Part B.2.a, infra (further explaining the Government?s
responsibility for this case?s complexity).

261. Finally, the Government may attempt to seek shelter behind the ?availability of proof?
factor identi?ed in Sc/mber, see 70 M.J. at 188, arguing that the proof was not as readily
available in this case as in some cases, given the volume of classi?ed evidence implicated by this

22 This motion uses the period of pretrial con?nement to the date of this motion for purposes of the Article 10
argument. The Defense points out, however, that this ?gure (845) will continue to increase each day until this
motion is litigated and decided. In the event that this Court denies the motion to dismiss with prejudice and the case
proceeds to trial as scheduled, the entirety of the 983 day period in which PFC Manning will have spent in pretrial
con?nement by 4 February 2013 will constitute the period of pretrial delay for purposes of Article 10.

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case. However, the Government has had ample time to allow the OCAs to conduct the
classi?cation review process, to obtain consent from the OCAS to release discoverable
information to the Defense, and to conduct its required Brady searches. From PFC Manning?s
placement in pretrial con?nement to the Government?s 25 April 2011 request for delay of the
Article 32 hearing its ?rst of eight such requests the Government already had a period of 332
days in which to get its affairs in order with respect to the classi?ed evidence in this case.
Moreover, the Government needed an additional 235 days after 25 April 2011 before it was even
ready for the Article 32 hearing. Furthermore, as of the date of this motion, the Government has
still not ?nished conducting its basic Brady searches of the ?les within its possession, custody,
or control, 845 days after PFC Manning was placed in pretrial con?nement and 808 days after
the original charges were preferred. Therefore, the Government cannot hide its profound
lethargy behind the fact that this case involved classi?ed evidence. See Argument, Part B.2.ii, iv
(further explaining the Government?s inexplicable discovery delay).

262. The remaining Schuber factors weigh in favor of ?nding this 845 day period of PFC
Manning?s pretrial con?nement to be suf?ciently to trigger the remainder of the Article
10 analysis. First, the Government has not properly complied with the procedures relating to
PFC Manning?s pretrial con?nement. See Schuber, 70 M.J. at 188. When PFC Marming was
transported to Quantico, for example, the Duty Brig Supervisor (DBS) completed an initial
custody classi?cation determination. Appellate Exhibit 258, at 4. Despite the fact that PFC
Manning?s score of was substantially lower than the ?12? or more points that are typically
required for a detainee to be placed in MAX custody, the DBS overrode the custody
determination and placed PFC Manning in MAX custody. Id. Moreover, despite the
recommendations of two Brig that PFC Manning be downgraded from Suicide Risk

to P01 status, the Brig did not immediately remove PFC Manning from Suicide Risk designation.

Id. at 4-5. This failure to take prompt action following the recommendations
violated Secretary of Navy Instruction (SECNAVINST) l640.9C. Id.; see id. at 35 (?In CWO5
Abel Ga1aviz?s investigation of the conditions of PF C?s Manning?s con?nement, he found that
the failure to immediately take PFC Manning off of Suicide Risk status upon the
recommendation was in violation of Navy Likewise, for the next eight months that PFC
Manning was at Quantico, Brig of?cials repeatedly ignored the recommendations of the Brig
that PFC Manning should be taken off of P01 status. Id. at 11. Similarly, on the
two occasions when the Brig increased PFC Manning?s handling instructions to be compatible
with those of a Suicide Risk detainee, Brig of?cials either ignored or simply did not consult the
Brig?s mental health providers. Id. at 27, 35-36. Additionally, the Classi?cation and
Assignment Board, which apparently met on a weekly basis to discuss PFC Manning?s
con?nement conditions, failed to properly document its recommendations on the required Brig
Form 4200 for over ?ve months. Id. at 27. Finally, and most egregiously, Col. Robert G.
Oltman, the Security Battalion Commander and senior rater of the Brig Commander, indicated at
a 13 January 2011 meeting that there would be no relaxation of the restrictions of PFC
Manning?s con?nement ?on [his] watch,? notwithstanding the dissenting views of the Brig?s
medical health personnel, because he believed that the Brig could do whatever it wanted to do
when it came to PFC Manning?s con?nement. Id. at 37-38. Col. Oltman was obviously simply
relying an order from LtGen. George J. the Commanding General of Marine Corps
Combat Development Command at Quantico. The 84 emails provided by the Government on
(literally) the eve of the Defense?s Article 13 ?ling expose that everybody at Quantico, from a

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three-star-general to lower enlisted marines at the brig, was complicit in the unlawful pretrial
punishment of PFC Manning.

263. Second, the Government was wholly unresponsive to requests for reconsideration of PFC
Manning?s pretrial con?nement. See Schuber, 70 M.J. at 188. PFC Manning, through counsel,
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.
Appellate Exhibit 258, at 47. While giving vague assertions that the Government was giving
these concerns the ?highest priority,? email correspondence between then-CPT Fein and the Brig
of?cials demonstrates that the Government was not at all concerned with seeing PFC Manning?s
con?nement conditions reconsidered, but was instead solely concerned with combating a
potential Article 13 Motion. Id at 47-50. Moreover, PFC Manning ?led numerous complaints
about his pretrial con?nement and requests to have his con?nement conditions reconsidered a
complaint with the Quantico Brig Commander, a DD Form 510 complaint through the Brig?s
grievance process, a request for release from pretrial con?nement under R.C.M. 305(g), a request
for redress under Article 138 and two rebuttals of the inadequate responses to this request, to be
precise all to no avail. Id. at 49. The responses to these numerous requests and complaints
were either nonexistent or inadequately explained, cursory denials. Id. Additionally, as a result
of the domestic and international outrage at PFC Manning?s inhumane treatment, several
organizations and individuals pleaded with the Government to modify the conditions of his
con?nement. Id. at 38-41. All such pleas, like the several requests and complaints lodged by
PFC Manning himself, fell on deaf ears.

264. Finally, a comparison of the time PFC Manning has spent in pretrial con?nement and the
periods of pretrial con?nement found to be suf?ciently facially unreasonable to trigger the
remaining Article 10 analysis readily demonstrates that the 845 days of pretrial con?nement in
this case easily quali?es as facially unreasonable. Indeed, the 845 days of pretrial con?nement
dwarfs the periods of pretrial con?nement in any reported military case. See, e. Thompson, 68
M.J. at 312 (holding that ?the 145?day period [the accused] spent in pretrial con?nement is
suf?cient to trigger an Article 10 inquiry?); Cossio, 64 M.J. at 257 (explaining that where the
accused ?had been in continuous pretrial con?nement for 117 days,? the length of delay was
suf?cient to trigger the remaining Article 10 analysis); Mizgala, 61 M.J. at 123, 129 (conducting
full Article 10 analysis when the accused was in pretrial con?nement for 117 days); Miller, 66
M.J. at 574 (?nding 140 delay to weigh ?signi?cantly against the Govemment?); see also
Kossman, 38 M.J. at 261 (?We happen to think that 3 months is a long time to languish in a brig
awaiting an opportunity to confront one?s accusers, and we think Congress thought so, too. Four
months in the brig is even longer. We see nothing in Article 10 that suggests that speedy-trial
motions could not succeed where a period under 90 or 120 days is involved?); cf Hatfield,
44 M.J. at 23-24 (af?rming military judge?s determination that Government violated Article 10
based primarily on ?ve periods of delay totaling 48 days); Laminman, 41 M.J. at 518-19, 523
(af?rming military judge?s determination that Government violated Article 10 based on a delay
of 109 days); United States v. Collins, 39 M.J. 739, 741 (N.M.C.M.R. 1994) (af?rming military
judge's determination that Government violated Article 10 based on a period of pretrial
con?nement of 88 days); United States v. Hayes, 16 M.J. 636, 638 (A.F.C.M.R. 1983) (?nding
delay of 466 days ?unacceptable,? even where no pretrial con?nement and observing that it was
?inconceivable that the processing was not done more expeditiously?). As an additional basis

77



for comparison, the 845 day period of PFC Manning?s pretrial con?nement is almost twelve
times longer than the 71 day period of pretrial con?nement that the Schuber Court found to be
not facially unreasonable. See 70 M.J. at 187-89.

265. In sum, no reported military case has involved such a staggering period of pretrial
con?nement. If periods of 1 17 days and 145 days have been held to be suf?ciently to
trigger the remainder of the Article 10 analysis, surely the 852 day period in this case quali?es as
facially unreasonable. Therefore, this ?rst factor must be resolved in favor of PFC Manning.

2. Reasons for Delay

266. As of the date of this motion, the Government?s case against PFC Manning has been
ongoing for 845 days. For the entirety of that time, PFC Manning has remained in pretrial
con?nement. With trial scheduled to commence on 4 February 2012, PFC Manning will have
spent a total of 983 days in pretrial con?nement before the trial against him even begins. This
marathon period of pretrial con?nement is tremendous, to say the least.

267. But since the Government always seems to have some excuse for all of its many missteps
along the way, the Defense suspects that the Government will respond to this motion with a
smorgasbord of excuses in a vain attempt to justify the astounding period of pretrial delay in this
case. This Motion anticipates and responds to a few of these potential excuses in this section.?
Because there are essentially two distinct tracks of Government delay in this case delay of the
Article 32 hearing and discovery delay this Motion addresses the various potential Government
excuses for each type of delay in different subsections below.

268. Every conceivable excuse offered by the Government is simply a red herring designed to
detract this Court?s attention from the ugly truth of this case: the Government was operating for
almost two years under a profound misunderstanding of its bedrock discovery obligations and
the Government was incredibly lethargic in processing this case on all fronts. All the excuses
under the sun fail to justify why, after PFC Manning has spent 845 days in pretrial con?nement,
the Government is still not ready for trial. A delay of 845 days is simply intolerable.
Accordingly, the ?reasons for delay? factor of the procedural framework also weighs in favor of
PFC Manning.

a. Delay of the Article 32 Hearing

269. It took the Government 566 days after PFC Manning was placed in pretrial con?nement
before it was ready for the Article 32 hearing. Even if this Court upholds the many challenged
exclusions from the R.C.M. 707 speedy trial clock that occurred during this period, the
Government still has the burden to show reasonable diligence for this time period for purposes of
Article 10 and the Sixth Amendment. See Lazauskas, 62 M.J. at 42; Mizgala, 61 M.J. at 128-29;
Birge, 52 M.J. at 21 1; Kossman, 38 M.J. at 261; Calloway, 47 M.J. at 787; see also Legal
Framework, Part B.2, supra. The Government may offer a number of reasons for this delay,

23 The Defense has anticipated these potential excuses from the Govemment?s court ?lings and emails. As the
Government may offer reasons not anticipated here by the Defense in the Govemment?s Response to this Motion,
the Defense reserves the right to address any new reasons offered by the Government in a reply motion.

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many of which are discussed or hinted at above, see Argument, Part A.4.e-1, supra. No reason
can suf?ciently explain the Government?s inexcusable failure to get its affairs in order for the
Article 32 hearing until 566 days went by.

270. First, the Government may attempt to pin some of the blame for the delay on the Defense.
After all, the Government might say, the Defense requested delay in the Article 32 hearing in
order to conduct a R.C.M. 706 Board. However, while it?s true that the Defense did request such
a delay, this fact has no bearing on the issue of whether the Government diligently processed this
case. From day one of PFC Manning?s pretrial con?nement, the Government had regulatory,
statutory, and constitutional duties to proceed to trial with reasonable diligence. During the lead
up to the R.C.M. 706 Board through the completion of the Board?s evaluation, the Govemment?s
duty to process the case with reasonable diligence remained in full effect. It could not simply
take a 205 day ?timeout? from processing the case simply because the Defense had requested
some delay to complete a R.C.M. 706 Board. Taking such a timeout would in itself establish a
lack of reasonable diligence in proceeding to the Article 32 hearing.

271. Of course, the Government will assert that it took no such timeout. In fact, the
Government?s representations to the Convening Authority indicate that the Government began
the classi?cation review process by reaching out to the OCAS on 17 June 201024 and that it was
?continuing? to work with the OCAS right up until the Article 32 hearing. If true, these
representations show why the fact that the Defense requested a R.C.M. 706 Board provides no
justi?cation for the Government?s delay in preparing for the Article 32 hearing: the Defense
request had no effect on the Government?s classi?cation review process, which was ongoing at
the time the request was made. Therefore, given that the Government requested delay in the
Article 32 hearing about once a month for a continuous period of 8 months, it is abundantly clear
that the Government would have needed to begin those delay requests earlier if the Defense had
never made the R.C.M. 706 Board request. In other words, because the Government has
represented that it was ?continuing? to work on the classi?cation review process since 17 June
2010 right up until December 2011 and because it still, even after the 205 days of delay
stemming from the R.C.M. 706 Board process, needed to request delays of the Article 32 hearing
eight times between 22 April 2011 and 16 November 2011, it is clear that the only thing that
would have changed had the Defense not made its R.C.M. 706 Board request would be the
number of Government requests for delay from 11 August 2010 to 16 November 2011. Thus,
the Government cannot base any of its 566 days of delay in the Article 32 hearing on the Defense
request for a R.C.M. 706 Board. See United States v. Cole, 3 M.J. 220, 225 (C.M.A. 1977)
(?While defense-requested delays or continuances generally are attributable to the defense as the
party which bene?ts therefrom, a showing that the prosecution could not have proceeded any
earlier at any rate compels the conclusion that the defense-requested ?delay? did not in fact delay
the proceedings at all and the responsibility for the pertinent time period remains where it
started: on the shoulders of the Government?).

272. Second, the Government could claim, as it did repeatedly in its eight requests for delay,
that the classi?cation review process was so because of the volume of classi?ed

34 Once again, however, the Defense notes that the Government has offered no explanation of why it waited 19 days
after PFC Manning was placed in pretrial con?nement before ?rst reaching out to the OCAs to begin the
classi?cation review process.

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information that needed to be reviewed. While this reason may justify some delay, it cannot
even begin to justify all 566 days of delay of the Article 32 hearing. For one thing, as mentioned
above, see Argument, Part A.4.e-1, supra, many of the classi?cation reviews of this allegedly
voluminous amount of classi?ed information are quite brief. Of the ten completed classi?cation
reviews provided, six were four pages or less in length. See Facts, Part A.2, supra. Of the
remaining four classi?cation reviews, only three were more than 12 pages in length and only one
was over 30 pages in length. See Facts, Part A.2, supra. While the Defense understands that
length of a ?nished product is not the sole factor in determining a task?s complexity, the fact that
many of the classi?cation reviews are only a few pages in length casts serious doubt on the
Govemment?s assertion that the classi?cation review process was so overwhelming. For another
thing, there is a large unexplained gap, ranging from a few months up to over a year and two
months, between the completion dates for some of the classi?cation reviews and their disclosure
to the Defense. The Defense believes that the Government may have been stockpiling completed
classi?cation reviews so that it could still plausibly claim that the classi?cation review process
was ongoing. Whether the Government actually engaged in this practice, however, is beside the
point. The bottom line is that there was a substantial delay between the completion of the
classi?cation reviews and either their disclosure to the Government by the OCAs or their
disclosure to the Defense by the Government. Either way, there is a period of unexplained delay
and that delay was caused by some arm of the United States Government. Finally, even if the
amount of classi?ed information to be reviewed was indeed voluminous, the Government cannot
deny the fact that it took 566 days after PFC Manning was placed in pretrial con?nement before
it was ready to proceed to the Article 32 hearing. Therefore, to the extent that the Government
intends to simply use ?voluminous amounts of classi?ed information? as some type of magic
phrase, the Defense fires ?566 days? right back.

273. Third, the Government may argue that the classi?cation review process was prolonged in
this case because of the necessity of coordinating with the various OCAs. Taking this contention
a step further, the Government may assert that its entire case preparation was bogged down by
the need to coordinate with the several different government agencies involved in this case. This
?reason? for delay is more cry than wool. At no point in its many requests for delay has the
Government explained how the necessary coordination in this case was especially burdensome.
As mentioned above, see Argument, Part A.4.e-1, supra, the fact that the Government needed to
coordinate with other governmental agencies does not itself justify any period of delay. Cf
Kuelker, 20 M.J. at 716-17 need to obtain crucial evidence in the custody of another
agency of the United States is a common problem and therefore associated delay does not qualify
for exclusion from the 120-day rule as a ?delay for good

274. At the end of the day, the Government had the resources of the United States at its disposal
from day one. Speci?cally, this meant that the Government had ?ve full time prosecutors, two
warrant of?cers, and multiple enlisted paralegal support assigned to this case, with the ability to
call on numerous additional lawyers and paralegals from the SJ A?s of?ce to help with the
processing of this case. With all of these resources, any claim by the Government that
coordination with the many entities involved in this case was overwhelming should be
scrutinized carefully. Are we really to believe that the Government was overwhelmed by its
coordination efforts when it had the ability to summon countless SJA attorneys and paralegal
support to assist in the preparation of this case? Should PFC Manning be made to suffer because

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the entity that is prosecuting him the United States of America is having dif?culty
coordinating amongst its many subparts? If the standard of reasonable diligence has any teeth
whatsoever, the answers to these questions must be no. Moreover, to the extent that Government
is simply attempting to impress this Court with the sheer number of OCAS and other entities with
which it needed to coordinate, the Defense would stress that the sheer length of delay 566 days
makes that coordination decidedly less impressive.

275. Finally, the Government may fall back on its oft-repeated, yet never fully explained, excuse
of complexity. Throughout the processing of this case, the Government has stressed that this
case is somehow unique or one of a kind as a result of its extreme complexity. While the
Defense recognizes that this case is not your ordinary court-martial, the Government cannot
repeatedly utilize the complexity excuse as some get-out?of-diligence-free card.

276. As an initial matter, each time the Government raises the ?complexity? defense to hide its
lack of diligence it neglects to acknowledge the undeniable fact that the Govemment?s own
charging decision has substantially contributed to the complexity of this case. The Government
referred 22 charges against PFC Manning. Several of these charges appear to rely on expansive
interpretations of the penal statutes under which PFC Manning has been charged. To recap just a
few of these complex charging decisions, consider the speci?cations alleging violations of 18
U.S.C. Section 1030(a)(1). These speci?cations depend on an expansive interpretation of the
phrase ?exceeds authorized access.? See generally Appellate Exhibit Appellate Exhibit
Appellate Exhibit and Appellate Exhibit CXCVII. Moreover, even after referral
of the charges, the Government was still unable to articulate its precise theory under which it had
charged PFC Manning with ?exceeding authorized access.? See Appellate Exhibit XC, at 2-4,
(explaining the Govemment?s reluctance to articulate its theory on how PFC Manning exceeded
his authorized access). What?s more, once the Government ?nally did articulate its ?de?nitive
theory? for ?exceeds authorized access,? it quickly shifted ground at the ?rst sign of court
resistance to its initial de?nitive theory. See Appellate Exhibit CLXX, at 2-3 n.l (explaining
the Govemment?s overdue articulation of its self-titled ?de?nitive? theory of ?exceeds
authorized access,? followed quickly by its abandomnent of that theory for an alternative theory).
That the Government, 742 days after PFC Manning was placed into pretrial con?nement, 705
days after preferral of charges, and 127 days after referral of charges, was having so much
dif?culty ironing out its own theory of the Section 1030 speci?cations speaks volumes about
both the Govemment?s self-created complexity and its overall lack of diligence.

277. To make matters worse, Section 1030 was not the only section that the Government needed
to have interpreted expansively in order to reach PFC Manning?s alleged conduct. The
Govemment?s theory underlying its Article 104 speci?cation the Speci?cation of Charge 1-
also depended on an expansive interpretation of a criminal statute. This time, the Government
needed the phrase ?indirectly? to be interpreted so that a person could be found to have indirectly
given intelligence information to the enemy when that person gave the information to a third
party with the knowledge that the enemy might be able to access that information. See Appellate
Exhibit LXII. As explained in the Defense Article 104 Motion to Dismiss, no court had ever
accepted such an expansive interpretation of that phrase. Id. Additionally, the Government has
been less than forthcoming with the theories underlying some of the other speci?cations in this
case. For example, despite a bill of particulars request covering the Government?s theories

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underlying the 18 U.S.C. Section 641 speci?cations, the Government refused to articulate its
theory of how PFC Manning stole or knowingly converted Government databases that remained
in the possession of the United States. While at the time the Defense believed the Government
was just engaging in some improper gamesmanship, the Defense now believes, in light of the
Government?s confusion over its own ?exceeds authorized access? theory (or theories), that the
Government simply did not yet have an articulable legal theory for the theft or knowing
conversion speci?cations.

278. The point of this discussion is not to rehash memories of long ago motions hearings.
Rather, the Defense merely wishes to point out that the Government cannot assert that this case
is overly complex or that it raises novel issues while simultaneously turning a blind to the
fact that a substantial portion of that complexity and novelty has been caused by the
Govemment?s own charging decision. In other words, the Government cannot be given a free
pass on the reasonable diligence inquiry simply by asserting the complexity of the case,
especially when it has charged the case in such a complex manner that necessitated delay in the
proceedings to allow the Government to mull over how it can make the proof ?t its lofty and
imaginative charging decision. As explained above, see Argument, Part B. 1, supra, PFC
Manning?s speedy trial rights cannot hinge upon the unfortunate circumstance of having an
imaginative prosecutor assigned to his case. Therefore, to the extent that case complexity is a
reason offered by the Government for its profound delay in processing this case, this Court
should discount any self-in?icted complexity from the weight given to that reason.

279. Furthermore, even if some residual amount of complexity exists in this case
complexity that was not created by the Govemment?s charging decision), that complexity can
only get the Government so far. Indeed, the sheer length of delay in this case prevents the
Government from waving the complexity ?ag as triumphantly as it attempts to. While case
complexity may be a valid reason for reasonable delay in the abstract, the delay here is so
astounding that not even vague calls of ?complexity? can rescue this case from the chopping
block. Once again, 566 days passed between the date PFC Manning was placed into pretrial
con?nement and the Government was ?nally ready for the Article 32 hearing to commence. No
matter the complexity of a given case, the Government?s team of ?ve full time prosecutors,
along with an arsenal of additional SJA attorneys and paralegals waiting in the wings, could have
been ready for the Article 32 investigation much sooner, if only it had been reasonably diligent
in processing the case.

280. At bottom, the true cause of the Government?s repeated requests for delay in the Article 32
hearing seems to be that the Government was simply stuck too long in a waiting posture. The
Mizgala Court, though not ?nding an Article 10 violation based on the 117 days of delay in that
case, nevertheless expressed grave concern about the Government being in a ?waiting posturez?

The processing of this case is not stellar. We share the militaryjudge?s concern
with several periods during which the Government seems to have been in a
waiting posture: waiting for formal evidence prior to preferring charges and
waiting for a release of jurisdiction for an offense that occurred in the civilian
community. There are periods evidencing delay in seeking evidence of the off-



26015

post offense and seeking litigation packages to support prosecution of the drug
offenses.

61 M.J. at 129.

281. Here, the Government appears to have been in some type of waiting period for most of the
566 days before the Article 32 investigation began. While the Government was quick to tell the
Convening Authority that it had contacted the OCAs on 17 June 2010 and that it was
?continuing? to work with the OCAs thereafter, the Government offered no speci?cs of what it
was actually doing in the 566 days it took for the classi?cation review process to be completed.
The most likely scenario seems to be that the Government was simply waiting around for the
OCAs to ?nish up the classi?cation reviews. Article 10 does not permit the Government to sit
idly by while an accused languishes in pretrial con?nement.

282. Additionally, periods of inactivity weigh heavily against the Government in an
Article 10 analysis. For example, in Calloway, the Navy-Marine Court of Criminal Appeals
reversed the military judge?s conclusion that the Government did not violate Article 10 in trying
the accused after he had been in pretrial con?nement for 1 15 days. 47 M.J. at 787. In ?nding an
Article 10 violation, the Calloway Court was particularly troubled with a 20-day period of
apparent Government inactivity: ?There is no evidence explaining why, during the ?rst 20 days
of the appellant?s pretrial con?nement, the Government did absolutely nothing with a view
toward prosecution.? Id at 785. Similarly, the Hat?eld Court, in af?rming the military judge?s
determination that the Government violated Article 10 based primarily on five periods of
inactivity that totaled 48 days, quoted approvingly the military judge?s prime concerns that the
Government had essentially brought the case to a standstill:

Yeah, but what the Government has done is just bring the processing of the case
to a complete stop. It?s not like they?re gathering evidence and preparing for a[n
Article] 32 [pretrial investigation]. The Government tells itself that everything is
stopped, we?re not proceeding anywhere. We?re not going to proceed to the 32,
we?re not going to assign counsel, we?re not going to identify an 10 so the
appointing letter can be done, so things can get moving. What we?re going to do
is we?re going to come to a complete stop in activity because we?re not satis?ed
we have a couple of documents that we need. You have a viable preferral which
the command wants to go to a 32 and the Government says, ?No, we?re not going
to do anything with this until you get a couple of documents.? So, that?s the
problem I have with that period of time. I mean, the Government has stopped
processing the case basically.

44 M.J. at 24 (alterations in original).

283. Here, there are several periods of Government inactivity taking place prior to
preferral. Those periods, which have been chronicled above, see Facts, Part A.4, supra, need not
be laid out once again here. The total of these periods added up to 323 days, far more than the
48 days that troubled the military judge and the Court of Military Appeals in Hat?eld and the 20
days that bothered the Calloway Court. In fact, each of the 13 periods of inactivity are

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comparable to the 20-day period of inactivity in Calloway; the periods vary in length from 12
days to 36 days, and all are longer than 16 days with the exception of one 12-day period. These
several periods of inactivity weigh heavily against the Government in the reasonable diligence

inquiry.

284. In the end, ?[w]hen an accused has been con?ned for a period, as in this case,
reasonable diligence may call for expeditious processing.? Laminman, 41 M.J. at 522 n.4. The
Govemment?s processing of this case falls far short of this mark.

285. For these reasons, no excuse the Government can muster can sufficiently explain why the
Government was unable to proceed to the Article 32 hearing before PFC Manning spent 566
days in pretrial con?nement. Therefore, with respect to any delay of the Article 32 hearing, the
second factor in the Article 10 framework and Sixth Amendment analysis must be resolved in
PFC Manning?s favor.

b. Discovery Delay

286. At the time of this motion, PFC Manning has been in pretrial confinement for 845 days. It
has been 808 days since charges were originally preferred and 230 days since charges were
referred to this Court. Despite these long periods of delay, the case is still languishing in the
discovery phase. The Defense is still awaiting critical discovery. The Government is still
conducting its Brady searches. This delay is intolerable.

287. The Government, never being short on excuses, will no doubt have some at the ready to
explain its staggeringly slow pace of discovery. Any excuse offered by the Government is a
mere cover-up attempt. No matter what the Government offers in its defense, there is simply no
way to explain away the Govemment?s inexcusable failure to understand its discovery
obligations and how the discovery rules operate in a classified evidence case. It is this failure,
and not the many reasons that the Government may point to in an attempt to divert attention
away from the storm cloud that has hovered over this case?s discovery stage, that has caused the
Government?s profound delay in providing discovery to the Defense.

288. As if the Govemment?s inexplicable misunderstanding of the discovery ground rules were
not enough, the Government has maintained several untenable legal positions in a childish
attempt to withhold as much discovery as possible. These frivolous positions, apart from being
contrary to the liberal tenor of the discovery rules in military practice, have further compounded
the delay. Finally, several discrete instances of Government discovery delay hammer home the
undeniable fact that the Government has simply fallen far short of the reasonable diligence
benchmark in the processing of this case.

289. Thus, the second factor in the Article 10 procedural framework and the Sixth Amendment
analysis must be resolved in favor of PFC Manning.

i. Government?s Potential Reasons for Delay

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290. The Government may offer some excuses for its inexcusable discovery delay. Some of
those excuses are addressed below.25 No excuse can justify the mammoth delay in the
processing of this case.

291. The Government will no doubt attempt to justify its discovery delay by clinging to the
prized possession of its veritable cache of excuses: case complexity. As applied to the discovery
context, the excuse will likely take the form of something like the following: ?The discovery
process in this case was unduly time consuming given the complexity of this case, which stems
from the accused?s misconduct, the volume of classi?ed information implicated in that conduct,
and the number of OCAs, equity holders, aligned entities, and other government agencies and
entities involved with this case.? This ?reason? for delay, while nicely varnished, cannot excuse
the Government?s legendary discovery delay.

292. As an initial matter, the Government?s generalized assertion of case complexity has been
less than forthright, since the Government bears a signi?cant amount of responsibility for any
complexity that this case may involve. See Argument, Part B.2.a, supra. Without rehashing
what?s already been argued, the Government?s charging decision injected much of the
complexity that the Government is always complaining about. Therefore, to the extent that the
complexity of this case has bogged down the Govemment?s discovery efforts, the Government
must be held to task for the consequences of the complexity it created for itself.

293. Additionally, as mentioned above, see Argument, Part.B.2.a, supra, case complexity does
not equate to a free pass on the reasonable diligence inquiry. Even in a complex case, the
Government must still proceed with reasonable diligence. That case complexity may make
discovery time consuming doesn?t get the Government very far. The extent to which some task
is time consuming is, after all, relative to the expediency at which one operates. For one who
moves at a snail?s pace, tying one?s shoes is time consuming. The Government appears to use
the ?time consuming task? label as way to sidestep its lack of diligence, all the while overlooking
(purposefully or not) the elephant in the room: the Government?s astoundingly lethargic pace of
action. PFC Manning has been in pretrial con?nement for the last 845 days, and the Government
has still not yet ?nished conducting its Brady searches, a prerequisite to bringing PFC Manning
to trial. No matter the complexity of a case, the Govemment?s failure to wrap up its Brady
searches after 845 days is not and cannot be reasonably diligent.

294. In addition to its case complexity excuse, the Government may attempt to de?ect attention
from the sheer length of delay by pointing out that charges were not referred until 3 February
2012 and arguing that ?the defense does not have a right to discovery prior to referral under
RCM 701 or Brady.? Appellate Exhibit CLXXII, at 2. This excuse for delay is wholly
unavailing.

295. For one thing, it misstates the law. While some discovery rules note the signi?cance of the
date that charges are referred, R.C.M. 701(a)(6) the rule the Government thought was
inapplicable to a classi?ed evidence case until this Court set it straight on 25 April 2012, 698

25 Again, these potential excuses have been gleaned from the Govemment?s many ?lings and emails in this case. To
the extent the Government responds to this motion by raising other excuses for its discovery delay, the Defense
reserves the right to address these new excuses in a reply motion.

85





days into this case, see Appellate Exhibit at 2 makes no reference to the date of
referral. Rather, that rule directs the Government to provide discovery within the rule?s reach to
the Defense ?as soon as practicable.? R.C.M. 701(a)(6).

296. For another thing, this Government excuse, even if correct as far as the Defense?s right to
discovery goes (which the Defense does not in any way concede), is terribly misleading. The
overarching requirement of reasonable diligence in the speedy trial context does not start merely
when charges are ?nally referred; that reasonable diligence duty begins when the accused is put
in pretrial con?nement. See 10 U.S.C. 810 (?When any person subject to this chapter is placed
in arrest or con?nement prior to trial, immediate steps shall be taken to inform him of the
speci?c wrong of which he is accused and to try him or to dismiss the charges and release him.?
(emphasis supplied)); Schuber, 70 M.J. at 184. Therefore, the Government was required to be
reasonably diligent in its prosecution of PFC Manning from the moment he was placed into
pretrial con?nement. The Government appears to have made no real effort to search for
discoverable material until referral of the charges. That period almost two years was an
incredibly long one. It was not reasonably diligent to wait so long to tackle its Brady and R.C.M.
70l(a)(2) responsibilities, an inevitable obligation in any criminal prosecution.

297. Additionally, the Government is attempting to use this late referral justi?cation in
conjunction with its repeated refrain of ?complexity? and ?uniqueness? of the case, to get a pass
on its botched discovery efforts. This attempt should be recognized as fruitless for two reasons.
First, the late date of referral was itself the product of the Government?s baseless and
unsupported requests for delay in the Article 32 proceedings. Had the Government been diligent
in its Article 32 preparation, the charges would have been referred much earlier than February
2012. See Argument, Part A.4.e-l, supra; Argument, Part B.2.a, supra. Second, the real reason
for the Government?s pathetic discovery showing cannot seriously be overlooked: the
Government did not understand its discovery obligations from the outset of the case. See
Argument, Part B.2.b.ii, infra. That failure is as astounding as it is unforgivable. A criminal
defendant?s right to speedy trial cannot be cast on the back burner by the need to bring his
prosecutors up to speed on the bedrock discovery obligations of a prosecutor. Just as a
defendant?s speedy trial rights cannot be made to hinge on the unfortunate circumstance of
having a creative or imaginative prosecutor assigned to his case, see Argument, Part B.2.a, infra,
so too should a defendant?s fundamental speedy trial rights not be made to suffer from the delay
occasioned by having an inept prosecutor assigned to the case. In this respect then, this ?date of
Defense?s discovery rights? nonsense must be seen for what it truly is: an illegitimate, post hoc
justi?cation for the Govemment?s inordinate discovery delay, which was caused primarily by the
Government?s inexcusable failure to understand its discovery obligations and how discovery
rules operated in a classi?ed evidence case.

298. The ?nal reason for its discovery delay that the Government may muster might be the
astounding position that the Defense itself has caused the discovery delay by ?ling too many
motions. See Appellate Exhibit CLXXII, at 4 defense raises anew complaints of the
timing of receiving discovery without regard to the motions it has submitted to the id
at 4 n.6 (?The numerous and unanticipated defense motions have affected the trial This
contention is nothing short of absurd.

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299. While the Government may prefer that those who come under the aim of its prosecutorial
crosshairs go quietly into the night, the United States Constitution permits a defendant to do
otherwise. PFC Manning has exercised his constitutional right to defend himself by taking issue
with several aspects of the Government?s case, including the drafting of the charges against him,
the validity of the legal theories underlying those charges, and the Govemment?s various
untenable discovery positions. These Defense motions were not part of some elaborate
conspiracy to sow the seeds for a successful speedy trial motion. Rather, they were legitimate,
nonfrivolous challenges to the Govemment?s case against PFC Manning. PFC Manning cannot
be punished for the exercise of his constitutional right to defend himself, especially where the
necessity of taking issue with several aspects of the Government?s case against him was
occasioned by the Government?s own conduct. See Argument, Part B.2.a, supra (explaining
Government's charging decision); Argument, Part (explaining the many untenable
discovery positions of the Government). Indeed, it has been the Govemment?s conduct, both in
revealing (or simply refusing to reveal) the theories underlying its creatively drafted
charges and in taking untenable discovery positions in an effort to withhold as much
discoverable information as possible, that has necessitated the ?ling of many of the motions in
this case.

300. Moreover, despite the Govemment?s constant attempt to conjure up the image of the tired,
overworked attorney who must search high and low for discoverable information while
simultaneously ?ghting off innumerable borderline-frivolous motions from the Defense, that is
simply not the reality. PFC Manning is not being sued by some tired, overworked attorney in a
shabby of?ce; he is being prosecuted by the United States of America, which has full command
of an arsenal of resources. Five full-time prosecutors are assigned to this case. Many more SJ A
attorneys and paralegals may be summoned for further assistance at a moment?s notice. That the
United States of America, represented in this case by ?ve full-time prosecutors (and any
additional SJA attorneys called in), has been unable to simultaneously manage its discovery
obligations, case preparation, and motions practice is a testament not to the legitimate reasons for
delay, but to the Government?s own profound lack of diligence.

301. Thus, for these reasons, any potential Government excuse fails to justify the inordinate
discovery delay in this case. Indeed, there is only one true reason for the delay, one which the
Government would prefer to have swept under the rug: the Government was operating under a
chronic misunderstanding of its own discovery obligations and how discovery rules operate in a
classi?ed evidence case for nearly two years. This true reason for delay is discussed below.

ii. The True Cause of Delay: The Government?s Misunderstanding of Discovery Rules

302. Try as it might to argue otherwise, the Government simply cannot get around the
undeniable fact that it was dead wrong about its discovery obligations for the first 698 days of
PFC Manning?s marathon 845-day pretrial con?nement. The Govemment?s misunderstanding
of its bedrock discovery obligations, even for one day, would be virtually inexcusable. The fact
that this misunderstanding persisted for 698 days is equal parts mind?boggling and disturbing.
This misunderstanding is the true reason for the Govemment?s discovery delay. It amounts to

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gross negligence or, at the absolute least, simple negligence.26 Either way, the Government?s
error is inexcusable and has caused substantial delay in PFC Manning?s case.

303. To recap the circumstances of the Government?s mistaken belief concerning the discovery
rules a mistaken belief that persisted for 698 days the Defense first became aware of the
Govemment?s misunderstanding on 8 March 2012, when the Government ?led its Response to
the first Defense Motion to Compel. Appellate Exhibit XVI. In that Response, the Government
revealed three chronic misunderstandings of the rules of military discovery: (1) that R.C.M. 703,
and not R.C.M. 701, governed the Govemment?s discovery obligations; (2) that Brady required
the Government to turn over only evidence material to the merits of the case and not evidence
that is material for sentencing purposes; and (3) that M.R.E. 505 permitted the Government, as
opposed to the military judge, to be the arbiter of what should and should not be disclosed after
balancing the interests of the accused against the national security concerns in a classi?ed
evidence case. Id. All of these grave errors were pointed out in the Defense?s Reply to the
Govemment?s Response, ?led on 13 March 2012. See Appellate Exhibit XXVI, at 1-2, 7.

304. Not backing down in the face of the Defense?s irrefutable contentions, the Government
persisted in maintaining its ?atly incorrect positions. On 22 March 2012, the Government
reiterated its positions in an email from then-CPT Fein to this Court. In that email, the
Government stated that R.C.M. 701 does not apply to classi?ed evidence and that the
Government had, and would continue to, consult the provisions of MRE 505 to determine what
information was discoverable and what information was not discoverable:

As litigated at the motions hearing, the govemment?s position is that classi?ed
information does not fall under RCM 701. The information the defense has
requested in discovery is classi?ed and the prosecution has no reason to believe it
is not classi?ed. Because the information is classi?ed, RCM 701 does not apply
(as per RCM 701 and (0), which leaves the prosecution to use the standards
under MRE 505 along with Brady and its progeny. The defense provided no
authority to apply RCM 70l(a)(2) or (6) to classi?ed information and all the
authorities only reference unclassi?ed information. The prosecution has relied on
MRE 505 and Brady for regulation of what classi?ed information is discoverable.

The United States Government must always weigh the necessity to provide the
defense access to classi?ed information and protecting national security. The
normal open-?le procedures in the military justice process does not and cannot
apply to classi?ed information, although in this case the government has turned
over as much classi?ed information as possible while still protecting national
security. The parties are now at a point where the defense wants access to
classi?ed information that the government does not agree to disclose under MRE
505(g)(l To date, the only classi?ed information the defense has requested
which the government has withheld are items subject to the motion to compel,
because they are more sensitive than the other classi?ed information previously
produced. The prosecution has maintained from the beginning of this case, that it

3? Not even the Government can dispute that its misunderstanding of the military discovery rules constituted at least
simple negligence.

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intends to produce all discoverable information, under our legal and ethical
obligations.

Just because the defense requests classi?ed information does not mean it is
discoverable, as outlined in MRE 505 and relevant case law. The United States
understands its Constitutional obligations to ensure a fair trial while balancing
national security interests by protecting classi?ed information.

Appellate Exhibit at 8-9.

305. In this Court?s 25 April 2012 ruling on the Defense Motion to Dismiss All Charges, this
Court con?rmed that the Government had indeed been operating under a grave misunderstanding
of its discovery obligations up until the date of the ruling:

From the 8 March 2012 Government response to Defense Motion to Compel
Discovery and its email of 22 March 2012, the Court ?nds that the Government
believed RCM 701 did not govern disclosure of classi?ed infonnation for
discovery where no privilege has been invoked under MRE 505. This was an
incorrect belief. The Court ?nds that the Government properly understood its
obligation to search for exculpatory Brady material, however, the Government
disputed that it was obligated to disclose classi?ed Brady information that was
material to punishment only.

Appellate Exhibit at 2. Based on the Govemment?s unawareness of its discovery
obligations and other Government discovery conduct that raised some eyebrows (to say the
least), this Court ordered the Government to provide a due diligence statement to the Court. See
Appellate Exhibit at 2-3.

306. The Govemment?s failure to fully understand its basic discovery obligations from the
outset of the case is wholly inexcusable. As the Army Court of Criminal Appeals has recently
said, ?[i]gnorance or misunderstanding of basic, longstanding fundamental, constitutionally-
based discovery and disclosure rules by counsel undermines the adversarial process and is
inexcusable in the militaiy justice system.? United States v. Dobsorz, 2010 WL 3528822, at *7
(A.Ct.Crim.App. Aug. 9, 2010). This case is one of the most important cases in military history
and there were no less than ?ve prosecutors who had not bothered to read the Manual for
Courts Martial. How could the entire prosecution team not have understood basic discovery
rules? How could the entire team prosecuting a classi?ed evidence case not have understood
classi?ed evidence?? How could nobody in the SJA of?ce have stepped in and said, ?Wait, we?re
not even operating under the correct rules.? There is no justi?cation?and there can be no
justi?cation??for such an abject failure of the Government to understand the rules of the game.
The Government has tried to sweep its profound discovery misunderstandings under the rug,
pretending they didn?t happen. In subsequent motions practice, the Government began
articulating the correct Brady standard, as if it understood it all along. While the Court did not
believe that the Govemment?s failure of understand how discovery works warranted dismissal of
the charges when the issue was raised in March 2012, the Court now has the bene?t of a more
fulsome picture: a picture that features an inept and deceitful prosecution.

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307. The Govemment?s mistaken interpretation and understanding of the discovery rules lasted
an incredible 698 days after PFC Manning was placed into pretrial con?nement. This grave
error has caused substantial delay. Based in large part on the Govemment?s erroneous
interpretation of its Brady obligations, the Government is still, 845 days after PFC Manning was
placed into pretrial con?nement, completing its Brady searches. The Defense is still awaiting
discovery. In a very real sense, the reverberations of the Govemment?s chronic
misunderstandings regarding military discovery rules is still causing delay in the proceedings to
this day. Therefore, this true reason for the Government?s discovery delay weighs heavily in
?nding an Article 10 and Sixth Amendment violation in this case.

308. The recent well-reasoned decision by our superior court in Simmons is instructive on this
point. In Simmons, the Army Court of Criminal Appeals found that the Government violated the
accused?s Article 10 speedy trial rights in bringing him to trial after 135 days of pretrial
con?nement. 2009 WL 6835721, at 4. This conclusion was based in large part on the
Govemment?s erroneous interpretation of the Status of Forces Agreement (SOFA) between the
United States and the Republic of Korea. See id. at *9-10. The Government interpreted the
SOFA (mistakenly, it turned out) as requiring the Government to delay prosecution of a Soldier
in all cases where the Republic of Korea had primary jurisdiction of the case until either the
Government received a waiver of jurisdiction by the Republic of Korea or the Republic of Korea
completed its own criminal proceedings against the Soldier. Id. at The Government
concluded that the Republic of Korea had primary jurisdiction over Simmons? case and that the
Government therefore would need to delay its own prosecution of Simmons. Id. As it turned
out, the Govemment?s interpretation of the SOFA was incorrect. Id. at As the Simmons
Court explained, ?the SOFA clearly and speci?cally grants primary jurisdiction to the United
States ?over members of the United States armed forces . . . in relation to . . . offenses solely
against the person of . . . a dependent?? Id. (quoting the SOFA). Once the military judge set the
Government straight on the proper interpretation of the SOFA, the Government conceded that
the United States had had primary jurisdiction over Simmons? case all along. Id.

309. In the Article 10 analysis, the Govemment?s mistaken interpretation of the SOFA cost the
Government dearly. See id. at *9-10. As the Simmons Court explained:

On its face, the govemment?s negligent, i.e. unreasonable interpretation of its
own SOFA seems the polar opposite of reasonable diligence. ?Although
negligence is obviously to be weighed more than a deliberate intent to
harm the accused?s defense, it still falls on the wrong side of the divide between
acceptable and unacceptable reasons for delaying a criminal prosecution once it
has begun.? Doggett United States], 505 U.S. [647,] 657 However,
a ?nding of government negligence that is responsible for a period of delay in
bringing an accused to trial does not prohibit a conclusion that the government
acted with reasonable diligence overall. See United States v. Lazaukas [sic], 2004
CCA LEXIS 199, (A.F.Ct.Crim.App. Aug. 19, 2004) (unpub.) The weight
we ascribe to government negligence also varies depending on the gravity of the
negligence at issue simple negligence weighs lighter than gross negligence. The
length of delay the negligence causes is also a consideration; a longer delay

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resulting from government negligence weighs more heavily against it than does a
shorter delay.

The government?s conduct here, in misreading its own international agreement
from the inception of appellant's pretrial con?nement until the day the military
judge heard the speedy trial motion 107 days later, was, in our view, negligent.
The govemment?s negligence in misreading the SOFA, regardless of whether it is
characterized as simple or gross, only stymied the govemment?s processing of
appellant?s case until the Republic of Korea completed the unnecessary waiver of
primary jurisdiction on 1 1 January. We believe that even gross negligence for a
portion of a court-martial?s processing time does not automatically result in
violation of Article 10, rather, it is part of the ?difficult and sensitive
balancing test? we must perform to determine whether, in tom, the government
proceeded with reasonable diligence. This reason for delay is weighted heavily
against the government.

Id at *9 (emphasis in original). In an effort to justify the Govemment?s erroneous interpretation
of the SOFA, the Government and the military judge pointed out that the original trial counsel in
Simmons? case was new and relatively inexperienced. Id. at *10. The Simmons Court was

unmoved:

Captain B, the original trial counsel, was new to the brigade and new to military
justice. This was one of the military judge?s primary justi?cations in favor of
?nding no Article 10, UCMJ, violation. We categorically reject this as a
legitimate reason for delay. Faced with a similar ?inexperienced? argument more
than forty years ago when it was proffered to explain the lack of diligence of non-
lawyer commanders, the Court of Military Appeals forcefully rejected it as well.
The court responded: ?As to the inexperience of the officers involved, we do not
believe this is a legally or factually sufficient explanation. Whether they thought
they were doing theirjob is irrelevant. The plain fact of the matter is that the
delay occurred.? Parish, 17 U.S.C.M.A. at 417, 38 C.M.R. at 215.

The record of the speedy trial motion also makes clear that CPT had a number
of other trial counsel with whom to consult, a chief of criminal law, and a staff
judge advocate. Unlike the hapless non-lawyers in Parish, CPT also had
available to him all the wonders of the technological age. It is no excuse
whatsoever that he was ?new.? We refuse to view the question of whether the
government acted with reasonable diligence through a prism of the government
counsel?s experience and adjust it or appellant's right to a speedy trial
accordingly. Moreover, the government assigned another more experienced trial
counsel to appellant?s case in late January or early February, and there is no
evidence why this could not have occurred earlier.

Id. (footnote omitted).

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310. Here, the Govemment?s failure to understand its basic discovery obligations for 698 days is
far more negligent than the Govemment?s erroneous interpretation of the SOFA in Simmons.
While the Simmons Court declined to speculate whether the Government?s incorrect
interpretation of the SOFA constituted simple or gross negligence, see id at there can be
little doubt that a prosecutor?s grave misunderstanding of his discovery obligations for almost
two years into the processing of the case constitutes gross negligence of the highest order. Even
if the Govemment?s negligence in this case is characterized as only simple negligence (which it
should not be), the Simmons Court made clear that an Article 10 violation can be found based on
simple negligence on the part of the Government. See id. (?The government?s negligence in
misreading the SOFA, regardless of whether it is characterized as simple or gross, only stymied
the govemment?s processing of appellant?s case until the Republic of Korea completed the
unnecessary waiver of primary jurisdiction on 1 1 January . . . . This reason for delay is weighted
heavily against the government?).

31 l. The Simmons Court also explained that the delay caused by the negligence is also a
relevant consideration. The Govemment?s negligent failure to understand its discovery
obligations clearly caused more delay in this case than the Govemment?s inaccurate
interpretation of the SOFA caused in Simmons. In Simmons, the total delay was 135 days. See
id. at The delay caused by the Government?s erroneous interpretation of the SOFA
amounted to 25 days. See id. at 17. Here, by contrast, PFC Manning has been in pretrial
con?nement for a grand total of 845 days. While the delay occasioned by the Govemment?s
misunderstandings of its discovery obligations is not as easily quanti?ed as the delay caused by
the Govemment?s negligence in Simmons, the delay caused by the Government?s negligence in
this case is far more substantial than the 25 days of delay in Simmons. The Government in this
case has represented that it has been conducting its Brady searches since April 201 1. For 698
days of this case, it didn?t even know what its Brady obligations were. Even now, 845 days after
this case began, the Government is still conducting its Brady searches, hopefully with a proper
understanding of what it needs to look for this time around. The Defense is still waiting on
crucial discovery. The case is still languishing in the discovery phase, with trial still several
months away. Therefore, there can be little doubt that the Government?s inexcusable ignorance
of its basic discovery obligations caused an inordinate amount of delay in this case.

312. Finally, as Simmons helpfully instructs, inexperience of the trial counsel is no excuse for
delays caused by the Government?s negligence. See id. at 10. Thus, although the Government
has yet to come forth with an excuse for its failure to understand how discovery works in
classi?ed evidence cases in the military, to the extent it seeks to hide behind its collective
inexperience with classi?ed evidence cases, such an attempt would be wholly unsuccessful.

313. In the end, the Government in both Simmons and this case was negligent. That negligence
caused delay in both cases. As the Simmons Court weighed the ?reasons for delay? factor
heavily against the Government as a result of Government negligence that caused 25 days of
delay, this Court must similarly weigh that factor heavily against the Government as a result of
its negligence, which has caused delay far, far in excess of 25 days. Indeed, the words that the
Court of Military Appeals uttered in Kossman are particularly apt here:

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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

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