Title: Volume FOIA 099

Release Date: 2014-03-20

Text: 32002

Volume 99 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

02332703


32003

From: Tooman. Joshua CPT USARMY (US)

Sent: Thursday, August 23, 2012 4:37 PM

To: Fein, Ashden MAJ USARMY MDW David Coombs

Cc: Dodson, En'k 'Hur1ey, Thomas MAJ OSD OMC Defense?; Morrow, JoDean (Joe) CPT

USARMY USAMDW Overgaard, Angel CPT USARMY Whyte, Hunter CPT
USARMY von Eiten. Alexander (Alec) CPT USARMY Ford, Arthur Jr CW2
USARMY (US)

Subject: RE: Secure Facility Coordination (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

Sir

Thanks For the quick response. Can we plan on reviewing it on Wednesday
afternoon after we Finish for the day?

v/r
Josh

Defense_Unclass_Email_2195

02954826

32004

From:
Sent:
To:
Cc:

Subject:

Thanks.

Defense_U nclass_Emai|_2196

Fein, Ashden MAJ USARMY MDW (US)

Thursday, August 23, 2012 4:40 PM

Tooman, Joshua CPT USARMY David Coombs

Dodson, En'k 'Hur1ey, Thomas MAJ OSD OMC Defense?; Morrow, JoDean (Joe) CPT
USARMY USAMDW Overgaard, Angel CPT USARMY Whyle, Hunter CPT
USARMY (US): von Elten_ Alexander (Alec) CPT USARMY Ford, Arthur Jr CW2
USARMY (US)

RE: Secure Facility Coordination (UNCLASSIFIED)



02964168



32005

From: Fein, Ashden MAJ USARMY MDW (US)
Sent: Friday, August 24, 2012 10:57 PM

To:
Subject: Emails

David. Could you please add me to your emails to the court. Thanks!

Vr ashden

Defense_Unc|ass_Email_2197

02832962
32006

From: David Coombs
Sent: Saturday, August 25, 2012 6:32 AM

To: Fein, Ashden MAJ USARMY MDW (US)

Subject: RE: Emails

Ashden,

I did. Did you not receive the email?

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 92996

Toll Free: 1-869-588-4156

Local: (598) 689-4616

Fax: (588) 689-9282



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

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

Defense_Unc|ass_Emai|_2198



02833093

32007

From: David Coombs
Sent: Saturday, August 25, 2012 6:33 AM

To: Fein, Ashden MAJ USARMY MDW (US)

Subject: RE: Discovery

Ashden,

See below.

Best,

David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02966

Toll Free: 1-808-588-4156

Local: (508) 689-4616

Fax: (593) 689-9282



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

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

Defense_Unc|ass_Emai|_2199

02965034

32008

From: Fein, Ashden MAJ USARMY MDW (US)
Sent: Saturday, August 25, 2012 10:59 AM
To:
Subject: Re: Discovery

David. Thanks. For some reason I am not but others on the pros team are. Originally it was
because joe accidentally left me off the 17 aug filing and you and the court replied all.

I will check on my work computer later this weekend. IF you do send anything else please
include joe.

Thank you

Vr ashden

Defense_Unc|ass_Emai|_2200

02965030
32009

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Sunday, August 26. 2012 10:06 PM

To: ?David Coombs'

Cc: Morrow, JoDean (Joe) Ill CPT USARMY USAMDW (US)
Subject: RE: Discovery

David,

I did not receive the below email with the executable attachment and I assume COL Lind did
not either because of the type of attachment. I know we can send them, but apparently we
cannot receive them.

Also, I did not receive your first two emails dated 24 Aug 12, 2023 and 2026 hours, because I
was not included.

As For the emails, we will have them all ready for the Court, including the 84 emails you
tried to send.

v/r
Ashden

Defense_Unclass_Emai|_2201

02970586
32om

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Monday, August 27, 2012 7:25 PM

To:

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

Subject: Brig Emails

David,

we have the produced emails ready for the defense if you would like them tonight.

BATES 00511907 - 00514453 - 715 documents, emails and their attachments). These are the
emails we referred to in the government's response to the defense motion to compel and for
which I referred to in my email on Friday.

If the defense would like the cd tonight please let us know so we can coordinate a member of

the defense meeting the paralegals at Fort Meade. Otherwise we will deliver tomorrow morning.

Vr
Ashden

Defense_Unclass_Emai|_2202

02833179
32011

From: Tooman, Joshua CPT USARMY (US)
sent: Monday, August 27, 2012 7:25 PM

To: Fein, Ashden MAJ USARMY MDW (US)
Subject: Automatic reply: Brig Emails

I will be out of the office 27 August - 3 September and will have limited access to email. I
will return on 4 September. If you need immediate assistance, please contact Ms. Kenyana

Flakes: Thank you.

Defense_Unc|ass_Emai|_2203

02833180
32012

From: David Coombs

Sent: Monday. August 27, 2012 7:27 PM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: Tooman, Joshua CPT USARMY von Elten, Alexander

(Alec) CPT USARMY Overgaard. Angel CPT USARMY Whyte. Hunter CPT
USARMY Morrow. JoDean (Joe) Ill CPT USARMY USAMDW Ford. Arthur Jr
CW2 USARMY (US)

Subject: RE: Brig Emails

Ashden,
Can you email them to me?

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-880-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282


ww. armycourtmartialdefense. com

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

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

Defense_Unc|ass_EmaiI_2204



02970580
32013


From: Fein. Ashden MAJ USARMY MDW (US)
Sent: Monday. August 27, 2012 8:01 PM
To:
Cc: Tooman. Joshua CPT USARMY von Elten. Alexander

(Alec) CPT USARMY (US): Ovetgaard. Angel CPT USARMY Whyte. Hunter CPT
USARMY Morrow. JoDean (Joe) CPT USARMY USAMDW Fond, Armor 0 Jr
CW2 USARMY (US)

Subject: Re: Brig Emails

David,

The File is too large to email.

Vr
Ashden

Defense_Unclass_EmaiI_2205

02833233

320M
From: NWC, Robillard, Socorro A., CIV, NAVWARCO
Sent: Wednesday, August 29, 2012 7:06 AM
To:
Cc: Fein, Ashden MAJ USARMY MDW Ford, Arthur Jr CW2 USARMY David

Coombs

Subject: Re: Acknowiedgement Receipt 8/22/2012
SGT Clark,

FYI I'm here until tomorrow but my Division will be closed on Friday, August 31, 2612.
V/r Corrie

Ms. Socorro Robillard, SFPC

Information Security Specialist

Classified Material Control Officer

NATO Sub-registry Control Officer

SIPR add"eSS=

Naval war College




HUMAN THREAT T0 NATIONAL SECURITY:

Did Not Know the Rules Did Not Understand the Rules - Did Not Follow the Rules"

FOR OFFICIAL USE ONLY - PRIVACY SENSITIVE This electronic transmission
>may contain confidential information intended only for the person(s)
>named above. Any misuse or unauthorized disclosure may result in both
>civil and criminal penalties. If you receive this transmission in

>error, please notify the sender at the telephone number or e-mail address above.

Defense_Unclass_EmaiI_2206

02824715
32015

From: Clark. Derek 0 SGT USARMY USAMDW (US)

sent: Wednesday, August 29, 2012 10:48 AM

To: Robilland, Socorro A CIV (US)

Cc: Fein, Ashden MAJ USARMY MDW Ford, Arthur Jr CW2 USARMY David

Coombs
subject: RE: Acknowtedgemem Receipt 8/22/2012
Corrie,

Thank you for the heads-up.



DEREK D. CLARK
SGT, USA
Paralegal NCO

JFHQ-NCR, DOW

Defense_UncIass_Emai|_2207

02969208
32016

From: Fein, Ashden MAJ USARMY MDW (US)
Sent: Wednesday, August 29, 2012 5:56 PM
To: 2

Cc: vergaard, Angel USARMY (US)
Subject: Coun calendar

Can you please send the word doc. Thanks.

Defense_Unclass_EmaiI_2208


02833172
I 32017
I
From: Coombs, David LTC RES USAR USARC
I Sent: Wednesday, August 29, 2012 6:15 PM
To: Overgaard, Angel CPT USARMY Morrow, JoDean (Joe) CPT USARMY
USAMDW Fein, Ashden MAJ USARMY MDW (US)
cc: Tooman, Joshua CPT USARMY (us)
Subject: Case Calendar (UNCLASSIFIED)
Attachments: Def. Proposed Case Calendar for MJ.docx
UNCLASSIFIED
Angel,

Please let me know if you receive this message.
Best,

David
UNCLASSIFIED

Defense_Unc|ass_EmaiI_2209

02821694
32018

From: Overgaard, Angel CPT USARMY (US)

Sent: Wednesday, August 29. 2012 8:19 PM

To: Coombs, David LTC USARMY MOITOW, JoDean (Joe) CPT USARMY USAMDW

Fein, Ashden MAJ USARMY MDW (US)

cc: Tooman, Joshua CPT USARMY (us)

subject: Re: Case Calendar (UNCLASSIFIED)

Sir,

I got it. Thank you!

Angel

Defense_U ncIass_EmaiI__221 0

02832682
32019



From: David Coombs

Sent: Wednesday, August 29, 2012 8:02 PM

To: Fleming. Josephine CTR USARMY HQDA ITA OPS Fein. Ashden MAJ USARMY
MDW (US): Ovetgaard, Angel CPT USARMY Morrow, JoDean (Joe) CPT
USARMY USAMDW (US)

Cc: Brehm. Chtistina (Chris CTR USARMY HQDA ITA OPS Straughn, Jason CIV
one-A cso

Subject: RE: troubleshooting eman ussue.

Josephine,

Here is my test message.

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-808-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



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

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

Defense_U nclass_EmaiI_221 1

02832680
32020

From: David Coombs

Sent: Wednesday, August 29, 2012 8:03 PM

To: Fleming. Josephine CTR USARMY HQDA ITA OPS Fein, Ashden MAJ USARMY
MDW Overgaard. Angel CPT USARMY Morrow, JoDean (Joe) CPT
USARMY USAMDW (US)

Cc: Brehm. Christina (Chris) CTR USARMY HQDA ITA OPS (US): Straughn. Jason CIV
DISA CSO

subject: RE: troubleshooting email issue.

Another Test.

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 62966

Toll Free: 1-806-588-4156

Local: (588) 689-4616

Fax: (508) 689-9282



?*Confidentia1ity Notice: This transmission, including attachments, may contain confidential
attorney-client information and is intended for the

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

Defense_Unclass_Emai|_2212



02832678

32021

From: David Coombs

Sent: Wednesday. August 29, 2012 8:04 PM

To: Fleming, Josephine CTR USARMY HQDA ITA OPS Fein, Ashden MAJ USARMY
MDW Overgaard, Angel CPT USARMY Morrow, JoDean (Joe) CPT
USARMY USAMDW (US)

Cc: Brehm. Christina (Chris) CTR USARMY HQDA ITA OPS (US): Straughn. Jason CIV
DISA CSD

subject: RE: troubleshooting eman Issue.

Test number 3

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02966

Toll Free: 1 -880- 588-4156

Local: (598) 689-4616

Fax: (508) 689-9282



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

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

Defense_UncIass_Emai|_221 3



02832685

32022
From: David Coombs

Sent: Wednesday, August 29, 2012 8:06 PM

TI

Cc: Straughn, Jason CIV DISA CSD Brehm, (Chris) CTR USARMY HQDA

ITA OPS Overgaard, Angel CPT USARMY Fein, Ashden MAJ USARMY MDW
Morrow, JoDean (Joe) Ill CPT USARMY USAMDW (US)
Subject: Test Messages

I sent three test messages. Let me know if you need anything else

David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-866-588-4156
Local: (593) 689-4616

Fax: (508) 689-9282
com

armycourtmartialdefense . com
Notice: This transmission, including attachments, may contain confidential
attorney-client information and is intended tor 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

Defense_Unc|ass_Email_2214

02952581
32023

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Wednesday, August 29, 2012 8:18 PM

To: Fleming, Josephine CTR USARMY HQDA ITA
OPS Overgaard, Angel CPT USARMY Morrow, JoDean (Joe) ill CPT
USARMY USAMDW (US)

Cc: Brehm, Chn'stina (Chn?s) CTR USARMY HQDA ITA OPS Straughn. Jason CIV
DISA CSD (US)

Subject: Re: troubleshooting email issue.

Received.

Defense_Unc|ass_Emai|_2215



02952579

32024

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Wednesday, August 29. 2012 8:18 PM

To: Fleming, Josephine CTR USARMY HQDA ITA
OPS Overgaard, Angel CPT USARMY Morrow, JoDean (Joe) Ill CPT
USARMY USAMDW (US)

Cc: Brehm. Ch?stina (Chn's) CTR USARMY HQDA ITA OPS Straughn. Jason CIV
DISA CSD (US)

Subject: Re: troubleshooting email issue.

Received.

Defense_Unclass__EmaiI_2216

02953715
32025

From: Fein, MAJ USARMY MDW (US)

Sent: Wednesday, August 29, 2012 8:19 PM

To:

Cc: Straughn, Jason CIV DISA CSO Brehm, Christina (Chris) CTR USARMY HQDA
ITA OPS (US): Ovengaard, Angel CPT USARMY Morrow, JoDean (Joe) CPT
USARMY USAMDW (US)

Subject: Re: Test Messages

Received all.

Defense_Unc|ass_Email_221 7

02835843
32026

From: Fleming, Josephine CTR USARMY HQDA ITA OPS (US)

Sent: Wednesday. August 29, 2012 8:55 PM

To: Fein, Ashden MAJ USARMY MDW
Overgaard, Angel CPT USARMY (US): Morrow, JoDean (Joe) CPT USARMY
USAMDW (US)

Cc: Brehm.ChI1stIna (Chris) CTR USARMY HQDA ITA OPS Straughn. Jason CIV
DISA CSO (US)

Subject: Re: troubleshooting email issue.

Got all three as well

Thanks for sending them

Josephine Fleming

Operations Senior Information Technology Expert US Army Information Technology Agency
Operations

Defense_Unclass_EmaiI_2218

02954378
32027

I From: Fein. Ashden MAJ USARMY MDW (US)

Sent: Friday, August 31, 2012 4:15 PM
To: David Coombs
Cc: Tooman. Joshua CPT USARMY Morrow. JoDean (Joe)

CPT USARMY USAMDW Overgaand, Angel CPT USARMY whyte_ Hunter
CPT USARMY von Elten. Alexander (Alec) CPT USARMY Ford, Arthur Jr

CW2 USARMY (US)
Subject: Supp Article 13 Motion
Attachments: Redact Det Supplemental Article 13 Motion updateddocx

David,

Attached is our review of your redactions. we do not object and will notify the Court via
email in a moment; however during our review we Found additional names or titles that need to
be redacted and provided you highlights.

v/r
Ashden

Defense_Unclass_Emai|_2219

02952585
32028

From: Fein, Ashden MAJ USARMY MOW (US)
Sent: Tuesday. September 04, 2012 8:14 AM
To: David Coombs

Subject: Trish Address

David,

Last week you asked me to send you Trish's address, please see below:



v/r~
Ashden

Defense_UncIass_Emai|_2220

02832889

32029
From: NWC, Robillard, Socorro A., CIV,
Sent: Tuesday, September 04, 2012 10:20 AM
To: David Coombs
Cc: Fein, Ashden MAJ USARMY MDW Fein, Ashden MAJ USARMY MDW Edsall,

Harold CIV Clark, Derek SGT USARMY USAMDW Ford, Arthur Jr CW2
USARMY Ford, Arthur Jr CW2 USARMY (US)
Subject: Info sent via SIPR

David,

Since you were already informed regarding information sent via SIPR, you were able to read
them, some were printed and controlled, and issued to you, I will start cleaning the CMCO
SIPR account. we agreed that those messages can be deleted.

CMCO account will still be active as that is the official account for NNC CMCO. However,
Harold Edsall, my assistant will be the holder of the CMCO account as this is my last week
in the college.

On September 7, 2012, I will be NATO debriefed (as a rule before checking-out), and my
account in NWC will cease. I won't be able to access any SIPR information until my check-in
to the receiving command.

V/r Corrie

Ms. Socorro Robillard, SFPC
Information Security Specialist
Classified Material Control Officer

NATO Sub-registry Control Officer

SIPR add"e55=

Naval war College



E-mai1=

HUMAN THREAT TO NATIONAL SECURITY:

Did Not Know the Rules - Did Not Understand the Rules Did Not Follow the Rules"

FOR OFFICIAL USE ONLY - PRIVACY SENSITIVE This electronic transmission

Defense_Unc|ass_EmaiI_2221



02832889

32030

>may contain confidential information intended only for the person(s)
>named above. Any misuse or unauthorized disclosure may result in both
>civi1 and criminal penalties. If you receive this transmission in

>error, please notify the sender at the telephone number or e-mail address above.

Defense_Unc|ass_Email_2221

02952870
32031

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Tuesday, September 04, 2012 4:45 PM

To: David Coombs

cc: Morrow, JoDean (Joe) Ill CPT USARMY USAMDW (US)
Subject: Today

David,

Thank you -For stopping in the office. we are starting to process the offer and owe the Chief
of Justice and SJA a brief by the end of the week. Looking at the schedule, the soonest the
offer could be acted on is early next week.

v/r
Ashden

Defense_Unc|ass_Emai|_2222



02832684

32032

From:
Sent:
To:

Cc:
Subject:

Ashden,



Tuesday. September 04, 2012 5:07 PM

Fein, Ashden MAJ USARMY MDW (US)

Morrow, JoDean (Joe) Ill CPT USARMY USAMDW (US)
Re:Today

Sounds good. Give my regards to CD102 Barnes.

Best,
David

Defense_Unclass_Emai|_2223

02832912

32033
From: Tooman. Joshua CPT USARMY (US)
sent: Tuesday, September 04, 2012 6:55 PM
To: Fein, Ashden MAJ USARMY MDW (US)
Subject: Automatic reply: Government Filing

I will be out of the office 4 8. 5 September and will return on 6 September. If you need
immediate assistance, please contact Ms. Kenyana Flakes, Thank you.

Defense_Unc|ass_EmaiI__2224



02957617

32034
From: Fein. Ashden MAJ USARMY MDW (US)
Sent: Tuesday. September 04, 2012 9:17 PM
To: I
Cc: av: oombs; ooman. Joshua CPT USARMY Parra, Jairo A (JP) CW2 USARMY

USAMDW (US)

Subject: Office Tour
MAJ Hurley,

when is a good time next week For us to come by to look at your office, speak with your IT
personnel, and view the secure areas? Later in the week would be better and if possible
could you please provide us two different dates and times so we can coordinate with HQDA IT
folks. Thanks!

v/r
MAJ Fein

Defense_Unclass_EmaiI_2225



02962322

32035

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Tuesday. September 04, 2012 10:20 PM

To: NWC. Robillard, Socorro A., CIV, David Coombs

Cc: Edsall. Harold CIV Clark, Derek SGT USARMY USAMDW Ford. Arthur 0 Jr

CW2 USARMY Ford, Arthur Jr CW2 USARMY (US)
subject: RE: Info sent via SIPR
Corrie,

Thank you again for all your assistance! we are starting to process the request through the
DA G2 to receive approval For Mr. Edsall to use SIPRNET For the defense in this case. He will
let Mr. Edsall know when this approval is granted.

v/r
Ashden

Defense_Unc|ass_Email_2226

02819917
32036

From: McLamb, Amber SGT USARMY MDW (US)

Sent: Wednesday, September 05, 2012 12:55 PM

To: Hurley, Thomas MAJ OSD OMC Defense

Cc: Whyte, Hunter CPT USARMY Clark, Derek SGT USARMY USAMDW von

Elten, Alexander (Alec) CPT USARMY Morrow, JoDean (Joe) Ill CPT USARMY
USAMDW Jorns, Claire SGT USARMY Parra, Jairo A (JP) CW2 USARMY
USAMDW Ford, Arthur Jr CW2 USARMY Fein, Ashden MAJ USARMY MDW
Overgaard. Angel CPT USARMY (US)

Subject: Delivery (UNCLASSIFIED)

hnponance:

Classification: UNCLASSIFIED

Caveats: NONE

MAJ Hurley,

will you be available sometime tomorrow for a classified delivery?

Thank you.

v/r

SGT McLamb

Classification: UNCLASSIFIED
Caveats: NONE

Defense_Unclass_EmaiI_2227


32037

I
From: Hurley, Thomas MAJ oso OMC Defens?

sent: Wednesday. September 05. 2012 3:37 PM

To: McLamb, Amber SGT USARMY MDW (US)

Cc: Whyte, Hunter CPT USARMY Clark, Derek SGT USARMY USAMDW von

Elten, Alexander (Alec) CPT USARMY (US): Morrow. JoDean (Joe) CPT USARMY
USAMDW Jorns. Claire SGT USARMY Parra, Jairo A (JP) CW2 USARMY
USAMDW Fond, Anhur CW2 USARMY Fein_ Ashden MAJ USARMY MDW
Ovetgaard, Angel CPT USARMY (US)

Subject: RE: Delivery (UNCLASSIFIED)

SGT McLamb,

Yes, I am available for a classified delivery tomorrow. Morning is better than afternoon,
but I can be available anytime.

v/r
MAJ Hurley

Defense_Unc|ass_Email_2228



02819915
32038

From: McLamb, Amber SGT USARMY MDW (US)
Sent: Wednesday, September 05, 2012 3:40 PM
To: Hurley, Thomas MAJ OSD OMC Defense
cc: Fein, Ashden MAJ USARMY MDW (US)
Subject: RE: Delivery (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

Sir,
Sorry For the confusion. But there will not be a delivery.
Sorry For any inconvenience that this may have caused.

v/r-
SGT HcLamb

Defense_Unc|ass_Emai|_2229



02832835

32039

2

From: Huney, Thomas MAJ OSD OMC Defense
Sent: Wednesday. September 05. 2012 3:39 PM
To: Fein, Ashden MAJ USARMY MDW (US)
Cc: David Coombs; Tooman. Joshua CPT USARMY Parra, Jairo A (JP) CW2 USARMY

USAMDW (US)
Subject: RE: Of?ce Tour
MAJ Fein

I would be glad to. Late next week is fine. I will have some refined dates NLT Friday.

v/r
MAJ Hurley

Defense_Unc|ass__Email_2230

02832811
32040

From: David Coombs
Sent: Thursday, September 06, 2012 11:17 AM

To: Fein, Ashden MAJ USARMY MDW (US)

Subject: FW: OTPG

Ashden,

Did you receive the email below?

Best,

David

David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 62966

Toll Free: 1-800-588-4156
Local: (508) 689-4616

Fax: (508) 689-9282




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

Defense__Unc|ass_Email_2231



02957502
32041

From: Fein, Ashden MAJ USARMY MDW (US)
Sent: Thursday, September 06. 2012 11:46 AM
To: ?David Coombs'

Subject: RE: OTPG

David,

we did not receive that email. But now have it.

v/r?
Ashden

Defense_Unc|ass_Emai|_2232

02953720
32042

From: Fein, Ashden MAJ USARMY MDW (US)
Sent: Thursday, September 06, 2012 1:05 PM
To: ?David Coombs'

subject: test 1

Test 1

Defense_UncIass_Emai|_2233



02808766

32043
From: Morrow, JoDean (Joe) USARMY USAMDW (us)

Sent: Thursday, September 06, 2012 5:58 PM

To: David Coombs

Cc: Fein, Ashden MAJ USARMY MDW Overgaard, Angel CPT USARMY von

Elten, Alexander (Alec) CPT USARMY Whyte, Hunter CPT USARMY Parra.

Jairo A (JP) CW2 USARMY USAMDW Ford, Arthur Jr CW2 USARMY

Tooman. Joshua CPT USARMY 'Hur1ey, Thomas MAJ OSD OMC Defense?
Subject: pay issue (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

David,

we?ve been notified by DFAS that PFC BM has been receiving pay since October 2011 in
contravention of the Financial Management Regulation (see attached document). If you?ll
recallOctober 2011 and the command involuntarily extended him on
active duty. Although we have attempted to delay the process in an effort to determine the
most appropriate course of action, DFAS intends to immediately stop pay and begin action to
recoup the money paid to BM since last year. As such, we thought it best to notify you as
soon as possible. we are consulting various individuals within the finance and military
justice communities and will notify you if we gather any more information. Thanks.

CPT Joe Morrow
Trial Counsel

U.S. Army Military District of washington

vhone=

sm=

Classification: UNCLASSIFIED
Caveats: NONE

Defense_Unclass_EmaiI_2234



02808763
32044

From: Monow, JoDean (Joe) CPT USARMY USAMDW (US)

Sent: Thursday, September 06. 2012 6:00 PM

To: David Coombs

Cc: Fein, Asnden MAJ USARMY MDW Overgaard, Angel CPT USARMY von

Elten, Alexander (Alec) CPT USARMY (US): Whyte. Hunter CPT USARMY Parra,
Jairo A (JP) CW2 USARMY USAMDW Ford. Anhur Jr CW2 USARMY
Tooman. Joshua CPT USARMY ?Hurley, Thomas MAJ OSD OMC Defense?

Subject: RE: pay issue (UNCLASSIFIED)
Attachments: [UntitIed1_20120906174013.pdf
Follow Up Flag: Follow up

Flag Status: Completed

Classi?cation: UNCLASSIFIED
caveats: NONE

Document attached.
CPT Joe Morrow

Trial Counsel
U.S. Army Military District of Nashington

Phone:
NIPR:
SIPR:

Defense_Unclass_EmaiI_2235



02832805

32045
From: David Coombs

sent: Friday, September 07, 2012 1:51 PM

To: Morrow, JoDean (Joe) CPT USARMY USAMDW (US)

cc: Fein, Ashden MAJ USARMY MDW Ovengaard, Angel CPT USARMY von

Ellen, Alexander (Alec) CPT USARMY Whyie, Hunter CPT USARMY Parra,

Jairo A (JP) CW2 USARMY USAMDW Ford. Arthur Jr CW2 USARMY

Tooman. Joshua CPT USARMY ?Hurley, Thomas MAJ OSD OMC Defense?
Subject: RE: pay issue (UNCLASSIFIED)

Joe,

I received the email. It was placed into my junk email File For some reason. I will discuss
this with PFC Manning next week. Please let me know the amount of the debt once DFAS has
established it.

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 62966

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (593) 689-9282



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

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

Defense_UncIass_EmaiI_2236



02808760

32046

From:

To:
Cc:

Subject:

Morrow. JoDean (Joe) CPT USARMY USAMDW (US)

Friday, September 07. 2012 1:56 PM

David Coombs

Fein, Ashden MAJ USARMY MDW Overgaand. Angel CPT USARMY von

Elten, Alexander (Alec) CPT USARMY (US): Whyte, Hunter CPT USARMY Parra,

Jairo A (JP) CW2 USARMY USAMDW Ford. Arthur 0 Jr CW2 USARMY
Tooman. Joshua CPT USARMY 'Huriey, Thomas MAJ OSD OMC Defense?
RE: pay issue (UNCLASSIFIED)

Classification: UNCLASSIFIED

Caveats: NONE
Received. Thanks.

CPT Joe Morrow
Trial Counsel

U.S. Army Military District of washington

Phone:
NIPR:
SIPR:

Defense_Unclass_Emai|_2237



02833191
32047

From: Tooman. Joshua CPT USARMY (US)

Sent: Friday, September 07. 2012 1:57 PM

To: Parra. Jairo A (JP) CW2 USARMY USAMDW Fein, Ashden MAJ USARMY MDW (US)
Cc: David Coombs; Hurley, Thomas MAJ OSD OMC Defense; Kobs. Joe MAJ USARMY

(US)
subject: RE: Badge for (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

Chief Parra
My SDC, MAJ Joe Kobs, would like to attend the 39a scheduled for October 17
18. Please let me know what you need from me to make this possible.

Thanks For your help!

v/r?
CPT

Defense_Unc|ass_Emai|_2238



02822190

32048
From: Parra. Jairo A (JP) CW2 USARMY USAMDW (US)

Sent: Friday, September 07. 2012 2:01 PM

To: Tooman. Joshua CPT USARMY (US): Fein, Ashden MAJ USARMY MDW (US)

cc: David Coombs; Huriey, Thomas MAJ OSD OMC Defense; Kobs. Joe MAJ USARMY

(US)
Subject: RE: Badge for (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

Sir,

Please send JPAS check his clearance. I will have
the badge for him at the hearing and will issue it to him at that time.
Please let me know if this helps. Thank you!

v/r,

JP

Jairo A. Parra

CW2, JA
Legal Administrator





rect
- Blackberry
Cell

The information contained in this email and any accompanying
attachments may contain Freedom of Information Act protected information,
including attorney-client or attorney work product privileged information.
This information may not be released outside of the Department of Defense
without prior authorization from the office of The Judge Advocate General,
Department of the Army. 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 prohibited. If you received this
email in error, please notify this office immediately by return email (see 5
U.S.C. 552 and Army Regulations 25-55 and

Defense_UncIass_EmaiI_2239



02952325

32049
2

From: Fein, Ashden MAJ USARMY MDW (US)

sent: Monday, September 10, 2012 2:38 PM

To: David Coombs . Tooman, Joshua CPT USARMY (US)

Cc: Morrow, JoDean oe USAMDW Overgaard. Angel CPT

USARMY (US): Whyte. Hunter CPT USARMY (US): von Elten. Alexander (Alec) CPT
USARMY Ford. Anhur 0 Jr CW2 USARMY (US)
Subject: Update

Defense,
Good afternoon. Please see below.

1. OMC office. we are ready to finalize the coordination to conduct a site survey of the
OMC offices for use of SIPRNET and storage of certain classified information. Please provide
the proposed dates and times for later this week so we can coordinate with those attending
and can work with security offices to ensure everyone has the appropriate clearances.

2. MRE notice. As per the agreed upon procedure for providing specificity with the
MRE 505(h) notice, we are available to make a copy of the damage assessments available for
inspection so that you may mark the information which you intend to use at trial. Please let
us know when you would like to meet with your security experts present, and we will have a
copy brought to an appropriate government facility for the marking.

3. Diplomat Visit. we were informed last week, that a German parliamentarian requested the
German Ambassador's assistance to coordinate a meeting with your client. we do not know who
would be visiting or the purpose of the visit. If this German government official was to
visit, could you please let us know whether your client would add him/her to his visitor's
list. we owe a response to the appropriate authorities.

Thank you.

v/r
Ashden

Defense_UncIass_EmaiI_2240



02832671

32050
From: Hurley, Thomas MAJ oso OMC Defense

Sent: Tuesday, September 11, 2012 9:59 AM

To: Fein. Ashden MAJ USARMY MDW David Coombs; Tooman. Joshua CPT USARMY

(US)
Cc: Morrow, Jooean (Joe) Ill CPT USARMY USAMDW (US): Overgaard, Angel CPT

USARMY (US): Whyte. Hunter CPT USARMY von Elten. Alexander (Alec) CPT
USARMY (US). Fold. Arthur 0 Jr CW2 USARMY (US)
Subject: RE: Update

MAJ Fine

As Far as OMC is concerned, can we be more specific? what do you and your people want to see
and, as important, what is the Government willing to do? (For instance, would you ever allow
for storage over here at a higher-than-secret level?) I am happy to continue this discussion
over SIPRNET if that is the appropriate venue.

S05(h). we anticipate that we will meet with our experts on 25 September 2612 at some
location on Fort Myer for another purpose. will that meeting (two weeks hence) be timely?

or should we coordinate something sooner?

Thanks.

MAJ Hurley

Defense_Unc|ass_Emai|_2241





02952317

Previously in Encl 1

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Tuesday, September 11, 2012 1:52 PM

To: ?Hurley. Thomas MAJ OSD OMC Defense?; David Coombs; Tooman, Joshua CPT
USARMY (US)

Cc: Morrow, JoDean (Joe) CPT USARMY USAMDW (US): Overgaand, Angel CPT

USARMY (US): Whyte. Hunter CPT USARMY von Elten. Alexander (Alec) CPT
USARMY Ford. Arihur Jr CW2 USARMY (US)
Subject: RE: Update
Attachments: 110910-Memo from

David and Hurley,

OMC. with the assistance of ARCYBER, a site survey team consisting of
information assurance, information technology, and physical security will
inspect your office, discuss the IT structure of your network that rides on
SIPRNET, your email accounts, and the physical space for higher than secret
information. As stated on the record, the government is willing to support
most of the defense's request, if certain protections and accountability
measures are in place, and the purpose of this survey is to understand what
exists.

565(h). we can have the material ready for the defense's review on 25 Sep
12 at the Fort Myer TDS office. As for the timeliness- we cannot estimate
how much time we will need until we receive the material and send it to the
equity holder. we will start processing the request once we receive it.

Client Travel. what day/time would the defense like to meet with PFC
Manning before the next session on 17 Oct 12?

Client Pay. Attached is a memorandum we received from the DMPO about your
clients pay. we are still working through the details. MTF.

v/r
Ashden

Defense_Unc|ass_Emai|_2242



02832670

32052

From: Coombs, David LTC RES USAR USARC

Sent: Tuesday, September 11, 2012 5:38 PM

To: Fein, Ashden MAJ USARMY MDW Hurley, Thomas MAJ USARMY Tooman,

Joshua CPT USARMY (US)
Cc: Morrow, JoDean (Joe) Ill CPT USARMY USAMDW Overgaard, Angel CPT

USARMY Whyte, Hunter CPT USARMY von Elten, Alexander (Alec) CPT

USARMY Ford, Arthur Jr CW2 USARMY (US)
Subject: Update
Ashden,
I have tried to respond to your previous emails, however, due to the hacking of GoDaddy, none
of my emails were sent. Currently, I still cannot send emails from my work account. I will
let you know once this situation is corrected.
In regards to some of the outstanding issues:
1) OMC MAJ Hurley will coordinate the resolution of this issue with the Government;
2) - Again, please coordinate with MAJ Hurley on this issue. I do not believe that
there should be much confusion surrounding what we intend to elicit. I would recommend that
the Government start the process of coordinating with the equity holder now;

3) Client Travel - Please have PFC Manning at the Fort Meade TDS office at 1330 on the 16th.

4) Client Pay - I will discuss this issue with PFC Manning. Please send me any documenation
From DMPO that indicates the amount overpaid.

S) Diplomat Visit - PFC Manning would like to meet with the German parliamentarian as long as
his meeting is not monitored. Please inform me whether the visit would be monitored or not.

I have missed any issues, please let me know by responding to this email address.

Best,
David

Defense_Unclass_EmaiI_2243





32053



From: Fein. Ashden MAJ USARMY MOW (US)

Sent: Tuesday, September 11, 2012 6:34 PM



Cc: Morrow, JoDean (Joe) CPT USARMY USAMDW (US)

Subject: Test

This is a test email.

Defense_Unc|ass_Emai|_2244

02952308

32054

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Tuesday, September 11, 2012 6:36 PM

To: Coombs, David LTC RES USAR Hurley. Thomas MAJ USARMY
Tooman. Joshua CPT USARMY (US)

Cc: Morrow, JoDean (Joe) CPT USARMY USAMDW Overgaand, Angel CPT

USARMY Whyte. Hunter CPT USARMY von Elten. Alexander (Alec) CPT
USARMY Ford. Arthur Jr CW2 USARMY (US)
Subject: RE: Update

David,
Good evening, below are more updates.

1. Diplomat Visit. we will Find out who is visiting and whether it will be monitored and
will let you know ASAP.

2. OTP. I will send in a separate email.

3. Email Usage. Does your US Army provided civilian AKO account (david.coombs.civ@) not
work any longer?

Thank you.

v/r
Ashden

Defense_Unc|ass_EmaiI_2245

02957487

32055
From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Tuesday, September 11. 2012 6:39 PM

To: David Coombs; Coombs, David LTC RES USAR USARC

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

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

Subject: RE: OTPG

David,

we discussed the OTP and your below email with the SJA. As of now, the SJA does not support
all the terms in your however he is very amenable to working towards a pretrial
agreement that benefits all parties. He asked us to provide more information on a couple of
discrete issues so that he can decide on terms he is comfortable recommending to the CG. we
intend to get that information to him tomorrow morning. Are you available tomorrow afternoon
to discuss our position?

As per your request, the SJA will not take the signed OTP into the CG this week, and he
suggests that we wait on the decision for you to speak with the CG until we have worked
through the PTA.

v/r
Ashden

Defense_UncIass_Emai|_2246



02832737
32056

From: Coombs. David LTC RES USAR USARC

Sent: Tuesday. September 11, 2012 9:05 PM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: David Coombs: Hu?ey. Thomas MAJ USARMY Tooman, Joshua CPT USARMY

Momow, JoDean (Joe) CPT USARMY USAMDW Overgaard. Angel CPT
USARMY (US): Whyte. Hunter CPT USARMY (US): von Elten, Alexander (Alec) CPT
USARMY Fond. Arthur 0 Jr CW2 USARMY (US)

Subject: Re: RE: OTPG

Ashden,

I am available to speak tomorrow at any of the following times: (0920 to 1615) or (1430 to
1526) or (1640 to 1730).

Best,
David

Defense_Unclass_Emai|_2247



02955986
32057

From: Fein, Ashden MAJ USARMY MDW (US)

sent: Wednesday, September 12, 2012 7:26 AM

To: 'Coombs, David LTC RES USAR

Cc: David Coombs; Hurley, Thomas MAJ USARMY 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: RE: OTPG

David,

How about 1640? That should give us enough time to have our final conversation with the SJA.

Thanks.

v/r
Ashden

Defense_Unc|ass_EmaiI_2248



02832733

32058

From: ml
Sent: Wednesday, eptem .2012

To: Fain. Ashden MAJ USARMY MDW (US)

Cc: David Coombs; Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY
Morrow. JoDean (Joe) CPT USARMY USAMDW Overgaard, Angel CPT
USARMY (US): Whyte, Hunter CPT USARMY von Elten, Alexander (Alec) CPT

USARMY Ford. Anhur Jr CW2 USARMY (US)
Subject: Re: RE: OTPG

Ashden,
1648 is fine.
Best,

David
Sent from my Verizon wireless Blackserry

Defense_UncIass_Emai|_2249

02955982

From:
Sent:
To:

Subject:

David,

Fein, Ashden MAJ USARMY MDW (US)
Wednesday. September 12, 2012 4:41 PM
'Coombs, David LTC RES USAR
RE: RE: OTPG

what number would you like me to call? I am at?

v/r
Ashden

Defense_Unclass_EmaiI_2250



32059

02955978

32060

From:
Sent:
To:
Subject:

David,

Fein. Ashden MAJ USARMY MDW (US)

Wednesday, September 12, 2012 4:49 PM

'Coombs, David LTC RES USAR David Coombs
RE: RE: OTPG

what number? would you like me to call? I am at

v/r?
Ashden

Defense_Unc|ass__Email_2251





02832673

32061

From: Hurley. Thomas MAJ OSD OMC Defense
Sent: Wednesday, September 12, 2012 5:10 PM
To: Fein, Ashden MAJ USARMY MDW David Coombs; Tooman, Joshua CPT USARMY
(US)
Cc: Morrow, JoDean (Joe) CPT USARMY USAMDW Ovetgaatd, Angel CPT

USARMY Whyte, Hunter CPT USARMY von Elten. Alexander (Alec) CPT

USARMY Ford. Arthur Jt CW2 USARMY (US)
Subject: RE: Update
All
OMC. I am working the site inspection of OMC issue now. our security people are
coordinating with OMC security people. I fear that this will take a while. will pass along
updates as I get them.
50S(h). Acknowledged.

v/r
MAJ Hurley

Defense_Unclass_Emai|_2252

02952300



From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Wednesday. September 12, 2012 9:58 PM

To: ?Hurley, Thomas MAJ OSD OMC Defense?; David Coombs; Tooman, Joshua CPT
USARMY (US)

Cc: Morrow, JoDean (Joe) CPT USARMY USAMDW Overgaard, Angel CPT

USARMY (US): Whyte. Hunter CPT USARMY von Elten, Alexander (Alec) CPT
USARMY Ford. Arthur Jr CW2 USARMY (US)
Subject: RE: Update

Thank you!

Defense_Unc|ass_Emai|_2253



02964684

32063
From: Fein. Ashden MAJ USARMY MDW (US)

Sent: Thursday, September 13. 2012 8:33 PM

To: David Coombs

cc: 'Hurley. Thomas MAJ OSD OMC Defense?; Tooman. Joshua CPT USARMY

Morrow, JoDean (Joe) Ill CPT USARMY USAMDW Ovengaard, Angel CPT
USARMY (US): Whyle. Hunter CPT USARMY von Ellen. Alexander (Alec) CPT
USARMY Ford. Arthur Jr CW2 USARMY (US)

Subject: Discovery Update

Attachments: 120913-Govemment Response to Defense Discovery Request dated 19 July 2012.pdf;
120913-Govemment Response to Defense Discovery Request dated 9 July 2012.pdf;
Enclosure 1 to Government Response to Defense Discovery Request dated 9 July 2012.pdf;
Enclosure 210 Government Response to Defense Discovery Request dated 9 July 2012.pdf

David,

Attached are the following two responses for defense discovery requests:

1. CIA Information, dated 19 July 2612.

2. Quantico Video, dated 9 July 2012.

Absent the defense request for unclassified damage assessments and the ongoing Giglio
disclosures, we are not tracking any other defense discovery requests. Please let us know if
this is incorrect. As for the unclassified damage assessments, we will provide the defense

with a roll-up next week, along with a production of any material we received.

v/r
Ashden

Defense_Unc|ass_EmaiI_2254



02982708

32064
From: Fein, Ashden MAJ USARMY MDW (US)
sent: Thursday, September 13, 2012 8:34 PM
To: David Coombs
cc: Hurley, Thomas MAJ USARMY 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: Discovery Update

Attachments: 120913-Government Response to Defense Discovery Request dated 19 July 2012.pdf;
120913-Government Response to Defense Discovery Request dated 9 July 2012.pdf;
Enclosure 1 to Government Response to Defense Discovery Request dated 9 July 2012.pdf;
Enclosure 2 to Government Response to Defense Discovery Request dated 9 July 2012.pdf

David,

Attached are the following two responses for defense discovery requests:

1. CIA Information, dated 19 July 2012.

2. Quantico Video, dated 9 July 2012.

Absent the defense request for unclassified damage assessments and the ongoing Giglio
disclosures, we are not tracking any other defense discovery requests. Please let us know if
this is incorrect. As for the unclassified damage assessments, we will provide the defense

with a roll-up next week, along with a production of any material we received.

v/r
Ashden

Defense_UncIass_EmaiI__2255



02965041
32065

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Friday, September 14. 2012 8:40 PM

To: David Coombs

cc: Hudey, Thomas MAJ OSD OMC Defense; Tooman, Joshua CPT USARMY Hall.

Cassius CIV Ganiel, Chades CIV Morrow. JoDean (Joe) CPT USARMY
USAMDW (US): Overgaard. Angel CPT USARMY Whyle. Hunter CPT USARMY
von Ellen. Alexander (Alec) CPT USARMY Ford. Arthur Jr CW2 USARMY
Boardman, Gerald CIV (US)

Subject: Discovery

David,

we sent to you via FEDEX the following unclassified information: DHS discovery and a
declassified DOE assessment (BATES ees144s4?9es14497 and 99514499-99514590).
Unfortunately, I do not have the tracking number and will be able to provide it Monday,
although the delivery is scheduled for tomorrow. we will deliver the other disc to MAJ
Hurley on Monday.

on Monday, we will send. to the NHC and deliver to MAJ Hurley classified discovery from DHS
and the classified information the Court approved under MRE 595(g)(2) for DIA and CIA (BATES
60514498-00515842).

Finally, we have other classified material from DIA and ODNI, available for inspection in a
SCIF, based on its classification (BATES 06514501-00514898). Please let us know whether
you rather us deliver the information to Cassius at INSCOM HQ.

v/r
Ashden

Defense_UncIass_EmaiI_2256



02833095

32066
From: David Coombs
Sent: Saturday, September 15. 2012 10:13 AM
To: Fein, Ashden MAJ USARMY MDW (US)
Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Halt,

Cassius cw Ganiel, Charles CIV Morrow, JoDean (Joe) CPT USARMY
USAMDW (US): Overgaard. Angel CPT USARMY Whyte. Hunter CPT USARMY
von Elten. Alexander (Alec) CPT USARMY Ford. Arthur Jr CW2 USARMY
Boardman, Gerald CIV (US)

Subject: RE: Discovery

Ashden,
1. I will let you know once I receive the discovery.

2. Classified DHS, DIA and CIA. I will coordinate with Corrie to view this information next
week.

3. - Please deliver a copy to Cassius. Also, I thought ODNI did not have anything
related to our case. Is the information the ONCIX information or is this something else?

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 82986

Toll Free: 1-890-588-4156

Local: (598) 689-4616

Fax: (588) 689-9282



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

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

Defense__Unc|ass_Email_2257



02832916

32067
From: David Coombs

Sent: Saturday, September 15, 2012 10:24 AM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Morrow,

JoDean (Joe) CPT USARMY USAMDW Overgaard, Angel CPT USARMY
Whyte, Hunter CPT USARMY von Ellen, Alexander (Alec) CPT USARMY
Ford, Arthur Jr CW2 USARMY Williams. Patricia Ann (Trisha Williams-Butler) CIV
USARMY USAMDW Jefferson. Dashawn MSG USARMY Moore, Katrina SFC

Subject: RE: Government Filing

Ashden,

Yesterday the Government stated that "the prosecution made available to the defense for
inspection all Department documents responsive to the above Court Order, or otherwise
discoverable, for which redactions under RCM

761(g)(2) or MRE 5e5(g)(2) are not sought approximately 6560 pages).?

Is this true? If so, where are these documents?

Later you state "[f]or all remaining documents for which redactions are not sought, the
prosecution will deliver these documents to the defense by 21 September 2612." what
documents are you referring to? Is it the 6500 pages or something else?

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 62906

Toll Free: 1-886-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



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

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

Defense_Unc|ass_Email_2258



02962798
32068

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Saturday, September 15, 2012 11:40 AM

To:

cc: Hurley, Thomas MAJ USARMY Tooman. Joshua CPT USARMY Morrow.
JoDean (Joe) CPT USARMY USAMDW Overgaard, Angel CPT USARMY
Whyte, Hunter CPT USARMY von Elten. Alexander (Alec) CPT USARMY
Fond, Arthur Jr CW2 USARMY Williams. Patricia Ann (Trisha Williams-Butler) CIV
USARMY USAMDW Jeffetson, Dashawn MSG USARMY Moore, Katrina SFC


Subject: Re: Government Filing

David,

I apologize for the confusion. The department of state document for which redactions are not
sought are available for the defense to inspect at our office as of yesterday. we also will
deliver digital copies of these documents to the defense in classified discovery early next
week. Should the defense want to inspect these documents before then, please coordinate with
your security experts (based on their classification level) and let us know when you want to
inspect. There are approximately 6500 pages.

There are also approximately 3 documents ready for the defense to review at the department of
state in addition to the 6566 we will produce in classified discovery. Based on the
classification of those 3 documents, the documents are available to review at state.

All remaining department of state documents have been submitted to the court under mre 505
and 701.

Vr
Ashden

Defense_Unc|ass_Email_2259



02965039

32069
From: Fein. Ashden MAJ USARMY MDW (US)

Sent: Saturday. September 15. 2012 11:46 AM

To:

Cc: Hurley. Thomas MAJ USARMY Tooman, Joshua CPT USARMY Hall,

Cassius CIV Ganiel. Chanes CIV Morrow. JoDean (Joe) CPT USARMY
USAMDW Overgaard. Angel CPT USARMY Whyte, Hunter CPT USARMY
von Ellen. Alexander (Alec) CPT USARMY Ford. Arthur Jr CW2 USARMY
Boandman, Gerald CIV (US)

Subject: Re: Discovery

David,

Please remember Corrie is gone and her replacement is the POC. I will send all tracking
numbers on monday so you know when they should be available.

For ODNI docs, these are the results of our Brady search, above and beyond the litigation
over the specifically requested ncix damage assessment.

we will coordinate with Cassius For delivery.

Vr
Ashden

Defense_Unc|ass_EmaiI_226O

02832913
32070

From: David Coombs

sent: Saturday. September 15. 2012 12:48 PM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: Hudey, Thomas MAJ USARMY 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 Williams, Patricia Ann (T risha Williams-Butler)
USARMY USAMDW Jefferson, Dashawn MSG USARMY Moore, Katrina SFC

Subject: RE: Government Filing

Ashden,

I am still a little confused as to what I will be receiving on the 21st.
Also, is it possible for a member of the Defense to pick up the 6596 pages of discovery on
Monday?

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02966

Toll ree: 1 800 588-4156

Local: (508) 689-4616

Fax: (568) 689-9282



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

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

Defense_Unclass_Emai|_2261



02962791

32071
From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Saturday, September 15. 2012 1:19 PM

To:

cc: Hurley, Thomas MAJ USARMY 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 Williams. Patricia Ann (Trisha Williams-Butler) CIV
USARMY USAMDW Jefferson. Dashawn MSG USARMY Moore, Katrina SFC

Subject: Re: Government Filing

David,

we received one copy of the DOS documents for the government and defense. This copy is
available for inspection by any member of the defense team. In an effort to provide actual
copies to the defense rather than having the defense come to our office to inspect over the
course of this case, the Department authorized us to produce them with Bates numbers the same
way we have produced all other information in discovery. Once we process this set of docs we
will get them out the door Hurley's office ASAP. In the mean time,
they are available for inspection. He wrote the NLT date of 21 Sep because it might take us
a week to digitally process them, but I think we can get it sooner and will try- its our top
priority next week when our paralegals return on Monday.

Vr
Ashden

Defense_Unc|ass_EmaiI_2262



02832813



From: David Coombs

Sent: Monday. September 17. 2012 4:39 PM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: Huriey. Thomas MAJ USARMY Tooman. Joshua CPT USARMY Morrow,

JoDean (Joe) CPT USARMY USAMDW Overgaard, Angel CPT USARMY
whyte, Hunter CPT USARMY von Elten. Alexander (Alec) CPT USARMY (US):
Ford, Arthur Jr CW2 USARMY Hurley. Thomas MAJ USARMY (US)

Subject: OTPG

Ashden,

I have discussed the SJA's OTPG terms with my client. As expected, he is not willing to
accept any OTPG that involves a cap higher than 15 years. As such, can you inform me when
the SJA intends on taking the OTPG to the

Prior to that date, the Defense would appreciate the opportunity to speak with the CA
concerning the OTPG.

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02966

Toll Free: 1-806-588-4156

Local: (508) 689-4616

Fax: (598) 689-9282



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

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

Defense_UncIass__EmaiI_2263



02821237

32073

From: Jorns, Claire SGT USARMY (US)

Sent: Tuesday, September 18, 2012 9:45 AM

To: Hurley, Thomas MAJ USARMY (US)

Cc: Fein, Ashden MAJ USARMY MDW Morrow, JoDean (Joe) CPT USARMY

USAMDW Ford, Arthur Jr CW2 USARMY (US)
Subject: Classified Delivery (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

Sir,

Are you available to accept a classified delivery today? Thank you!



Claire Jorns
SGT, USA
Paralegal NCO
MDW OSJA

Classification: UNCLASSIFIED
Caveats: NONE

Defense__Unc|ass_Emai|_2264



02832834
32074

From: Hurtey, Thomas MAJ OSD OMC Defense
Sent: Tuesday, September 18, 2012 2:22 PM
To: Fein, Ashden MAJ USARMY MDW David Coombs; Tooman, Joshua CPT USARMY
(US)
Cc: Morrow, JoDean (Joe) CPT USARMY USAMDW Overgaard. Angel CPT

USARMY Whyte. Hunter CPT USARMY von Elten, Alexander (Alec) CPT
USARMY Ford, Arthur 0 Jr CW2 USARMY (US)
Subject: OMC Of?ce Tour

A11

Let's settle on a date for the tour. How about either Monday of next week (24 September) or
Friday of next week (28 September)?

Thanks.

MAJ Hurley

Defense_Unclass_Email_2265



02833097

32075
From: David Coombs

sent: Tuesday, September 18. 2012 9:21 PM

To: Fein, Ashden MAJ USARMY MDW (US)

cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Morrow,

JoDean (Joe) CPT USARMY USAMDW Overgaard, Angel CPT USARMY
Whyle, Hunter CPT USARMY von Ellen. Alexander (Alec) CPT USARMY (US):
Ford, Arthur Jr CW2 USARMY (US)

Subject: RE: Discovery

Ashden,

Thank you. I understand that the DOS information is available for inspection, however, when
will the Government be sending this Hurley?

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02966

Toll Free: 1-806-588-4156

Local: (568) 689?4616

Fax: (508) 689-9282



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

Defense_Unclass_Email_2266



02832817

32076
From: David Coombs

Sent: Wednesday. September 19, 2012 6:17 PM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: Hurley, Thomas MAJ USARMY Tooman. Joshua CPT USARMY Morrow.

JoDean (Joe) CPT USARMY USAMDW Overgaard, Angel CPT USARMY
Why1e,J Hunter CPT USARMY von Elten. Alexander (Alec) CPT USARMY
Ford. Arthur Jr CW2 USARMY (US)

Subject: RE: OTPG

Ashden,

I would like to speak to COL Bradley. Can you please ask him when would be a convenient
time? Thank you.

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 62966

Toll Free: 1-896-588-4156

Local: (568) 689-4616

Fax: (508) 689-9282



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

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

Defense_Unclass_Emai|__2267

02832822

32077
From: David Coombs

Sent: Wednesday. September 19. 2012 6:27 PM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Morrow,

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

Subject: RE: OTPG

Thank you. Have you received attachments 41 through 70?

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



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

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

Defense_Unc|ass_Email_2268



02821236
32078

From: Jorns, Claire SGT USARMY (US)

Sent: Thursday, September 20, 2012 3:22 PM

To: Hurley, Thomas MAJ USARMY Hurley, Thomas MAJ USARMY (US)
Cc: Ford, Arthur Jr CW2 USARMY Fein, Ashden MAJ USARMY MDW (US)
Subject: Classified Delivery (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

Sir,

will you be available to accept a classified delivery tomorrow? Thank you.



Claire Jorns
SGT, USA
Paralegal NCO
MDW OSJA

Classification: UNCLASSIFIED
Caveats: NONE

Defense_UncIass_EmaiI_2269



02832828

32079
From: David Coombs

Sent: Thursday, September 20, 2012 4:22 PM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Morrow.

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

Subject: RE: OTPG

Ashden,

I was out of the office most of the day. I am available now or tomorrow between 1300 and
1500. I do not anticipate the conversation being an one.

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



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

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

Defense_Unc|ass_Emai|_2270



32080

IN THE UNITED ARMY FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: GOVERNMENT
MOTION FOR PROTECTIVE
ORDER CID REGULATION



MANNING, Bradley E., PFC

US. Army,

Headquarters and Headquarters Company,
U.S. Army Garrison, Joint Base Myer-
Henderson Hall, Fort Myer, VA 222lI

DATED: 12 October 2012



On 10 October 2012, the Government advised the Court that the Commanding General,
U.S. Army Criminal Investigation Command (USACIDC) invoked a privilege against disclosure
of Chapter 8-2 of CID Regulation (CIDR) 195-1 to the Defense. The Government further moved
this Court to grant a protective order that orders release of CIDR 195-1, Chapter 8-2 to the

defense and establishes protections regarding the distribution and reproduction. The Defense
does not object.

The Government motion for protective order is GRANTED.

Ordered this day of October 2012.



DENISE R. LIN
COL, IA
Chief Judge, 15' Judicial Circuit

APPELLATIE ma
PAGE
PAGE PAGES



32081

IN THE UNITED STATES ARMY FIRST JUDICIAL CIRCUIT
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

Protective Order:
CIDR 195-1, Chapter 8-2

Dated: 12 October 2012

The Government has established the relevance of Chapter 8-2 of CIDR 195-1. The Court issues
this protective order to control the distribution and reproduction of any portion of CIDR 195-1,
whether exchanged via discovery or not, in U.S. v. Manning.
IT IS ORDERED:
1. Copying and distributing any portion of CIDR 195-1 is limited to one copy only, each, to the
Trial Counsel (MAJ Ashden Fein) and Defense Counsel (Mr. David Coombs), which copies, or
an attestation (under oath) evincing the document's destruction, must be returned to the local
USACIDC office within forty-eight (48) hours after the conclusion of the trial (in the court of
first instance) of this matter, which is defined as the date the Defense remits to the United States
its RCM 1105/1106 submissions.
2. Chapter 8-2 of CIDR 195-1 shall be produced to the Defense subject to the restrictions
contained in this order and the restrictions outlined in the Distribution Section of CIDR 195-1;
3. Any request for further portions of CIDR 195-1 will require a separate request; separate
motion for protective order and protective order;
4. A protective mask or watermark, as described in CIDR 195-1 shall be placed on any
documents governed by this protective order whether the documents are exchanged
electronically (PDF) or in hardcopy (paper) format.
5. Should any portion of CIDR 195-1 be introduced into the record of trial as part of an exhibit
in U.S. V. Manning, the Government may move the Court to seal that portion of the exhibit.
ORDERED, this 12"' day of October 2012.

DEMISE R. LIND
COL, JA
Chief Judge, 1st Judicial Circuit
A^PPELLATE E X H m i T ^ / _
PAGE REi ERENCEi;
PAGE
OF
PAGES

32082

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

v. DEFENSE NOTICE OF PLEA,
FORUM, AND EXPECTED
MANNING. Bradley E.. PFC MOTIONS

u.s.Army.j

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 222l

DATED: 15 October 20l2



1. In accordance with the Rules of Practice before Army Courts-Martial. PFC Manning, by and
through his attorney, hereby serves notice to the Govemment and Court of anticipated plea,
requested forum, and expected motions. By way of this plea, the Defense waives any objection
under United States v. Borunda, 67 MJ. 607 (A.F.Ct.Crim.App. 2009) regarding whether Clause
1 and 2 of Article 134 is a lesser included offense of Specifications 2,3,5,7.9,lO.l l. and 15 of
Charge II. The Defense also waives any objection that Article 121, UCMJ, preempts Clause 1
and 2 of Article 134 as a lesser included offense of Speci?cations 4,6.8,l2, and 16.

A. Plea:
To the Specification of Charge and to Charge I: Not Guilty.

To Specification 1 of Charge ll: Guilty, except the words and ?gures 1 November 2009,
27 May 20l0. Substituting therefore the words and figures 3 February 2010, 4 May 2010. Of
the excepted words and ?gures, Not Guilty. Of the substituted words and ?gures, Guilty.

To Specification 2 of Charge ll: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law. l8 U.S. Code Section 793(e), but Guilty of Disorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Amied
Forces under Clause 1 and 2 of Article 134.

To Specification 3 of Charge II: Not Guilty of Crimes and Offenses Not Capital.
Violations of Federal Law, 18 U.S. Code Section 793(e). but Guilty of Disorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Amied
Forces under Clause 1 and 2 of Article 134.

To Specification 4 of Charge ll: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section 641, but Guilty of Disorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Anned
Forces under Clause and 2 ofArticle I34.

APPELLATE

PAGE REFERENCED:
PAGE PAGES





To Speci?cation 5 of Charge 11: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section 793(e), but Guilty of Disorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Armed
Forces under Clause 1 and 2 of Article 134.

To Speci?cation 6 of Charge 11: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section 641, but Guilty of Disorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Armed
Forces under Clause 1 and 2 of Article 134.

To Speci?cation 7 of Charge II: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section 793(e), but Guilty of Disorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Armed
Forces under Clause 1 and 2 of Article 134.

To Speci?cation 8 of Charge 11: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section 641, but Guilty of Disorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Armed
Forces under Clause 1 and 2 of Article 134.

To Speci?cation 9 of Charge 11: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section 793(e), but Guilty of Disorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Armed
Forces under Clause 1 and 2 of Article 134.

To Speci?cation 10 of Charge 11: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section 793(e), but Guilty of Disorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Armed
Forces.

To Speci?cation 11 of Charge 11: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section 793(e), but Guilty of Disorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Armed
Forces under Clause 1 and 2 of Article 134.

To Speci?cation 12 of Charge II: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section 641, but Guilty of Disorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Armed
Forces under Clause 1 and 2 of Article 134.

To Speci?cation 13 of Charge 11: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section 1030(a)(1), but Guilty of Disorders and
Neglects to the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon
the Armed Forces under Clause 1 and 2 of Article 134.



32084

To Speci?cation 14 of Charge II: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section l030(a)(l), but Guilty of Disorders and
Neglects to the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon
the Armed Forces under Clause 1 and 2 of Article 134.

To Speci?cation 15 of Charge II: Not Guilty of Crimes and Offenses Not Capital,
Violations of Federal Law, 18 U.S. Code Section 793(e), but Guilty ofDisorders and Neglects to
the Prejudice of Good Order and Discipline or of a Nature to Bring Discredit Upon the Armed
Forces under Clause 1 and 2 of Article 134.

To Speci?cation 16 of Charge II: Not Guilty.

To Charge 11: Guilty.

To Speci?cation of Charge Not Guilty.

To Speci?cation 2 of Charge Not Guilty.

To Speci?cation 3 of Charge 111: Not Guilty.

To Speci?cation 4 of Charge Not Guilty.

To Speci?cation 5 of Charge Guilty, except the word and ?gures 1 November 2009.
Substituting therefore the word and ?gures 5 January 2010. Of the excepted word and ?gures,
Not Guilty. Of the substituted word and ?gures, Guilty.

To Charge Guilty.

B. Forum:
Trial by Military Judge Alone.
C. Expected Motions:
Motion to Dismiss: Speedy Trial under Article 10 and R.C.M. 707;

Motion to Dismiss: Unlawful Pretrial Punishment under Article 13; and

Motion to Dismiss: Unreasonable Multiplication of Charges for Findings and
Sentencing (after announcement of Findings).

32085

2. The Defense will provide draft speci?cations to the Court for each of the lesser included
offenses to which PFC Marming will be pleading guilty within Charge II. The lesser included
offenses? draft specifications will be provided to the Court in a separate memorandum prior to
the Court?s acceptance of PFC Manning?s pleas.

Respectfully submitted,

VID EDWARD COOMBS
Civilian Defense Counsel

32086


UNITED STATES OF AMERICA

v. Updated Prosecution Witness List

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison, 15 October 2012
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

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

the presentencing phase' of the above-captioned court-martial. After each witness name is a
brief description of the general substance of witness testimony, including whether the
prosecution currently intends to elicit classi?ed information during their testimony.

I.

CDR Youssef Aboul-Enein, Defense lntelligence Agency, Bolling AFB, DC, 20032,
He will testify about enemies of the United States, including classi?ed
information.

SFC Paul Adkins, 10th Mountain Division Fort Drum,
- He will testify about the accused's training, activities, and duties.



Mr. Maxwell Allen, Central Intelligence Agency, McLean, VA, 22101, POC: Ms.
Jennifer M., He will testify as to the authenticity of the OSC logs.

SPC Mary Amiatu, Camp Arifjan, Kuwait, APO AE, 09306, DSN:
She will testify as to the authenticity of the JAMMS records.



SFC Jose Anica, Headquarters and Headquarters Company (HHC), National Ground

Intelligence Center (NGIC), Charlottesville, VA, 22911, He will
testify about the accused's intelligence systems training and the accused's activities at
2/10, including potential classi?ed information.

Mr. Peter Artale, 902d MI Group, Fort Meade, MD, 20755, He will
testify as to the authenticity of the ACIC logs, including classi?ed infomiation.

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

PAGE
1 PAGE oF__
FOR OFFICIAL USE BUT UNCLASSIFTEU



PAG ES

.-.aitT zzj?



10.

ll.

13.

15.

l6.

l7.

18.

20.

21.

FOR USE BU1 UNCLASSIFIED

SPC Eric Baker, .
He will testify about the accused's activity in his CHU and the accused's activities at
2/10.

SPC Kimberly Bales, Headquarters and Headquarters Company (HHC), 2nd Brigade
Combat Team (ZBCT), 10th Mountain Division (LI), Fort Drum,

She will testify about her deployment with the accused and the duties of a
35F, including classified information.

W01 Kyle Balonek, Headquarters and Headquarters Company (HHC), Headquarters
and Headquarters Battalion (HHBN), 10th Mountain Division (LI), Fort Drum, NY,
13602 . He will testify about the requirements of being a 35F, the
accused's duties and work product, including classi?ed information.



Mr. Joseph Benthal, Watertown, NY . He will testify about the
requirements for access to government systems at 10th Mountain Division.

SA Troy Bettencourt, U.S. Department of Treasury, Washington. DC, 20220,
He will testify about the IA training the accused received, authenti on of
multiple pieces of evidence, and the information that the accused leaked to Wikilreaks,
including classified information.

SSG Peter Bigelow, US Army NATO, Allied Forces Command South, Naples, Italy,
FPO AE, 09620, He will testify about the accused's duties in the
supply room and the accused's access to computer systems.

Mr. Wyatt Bora, Air Force Research Laboratory, Rome, NY, l3440_?.
He will testify about the CIDNE database, its value, and how it appeared at a particular
time, including classified information.



Mr. Steve Buchanan, Intclink, Fort Meade, MD, 20755, . He will
testify as to the authenticity of the Intelink logs, including classified information.

BG (Ret.) Robert Carr, Defense Intelligence Agency, Bolling AFB, DC, 20032,
He will testify at sentencing about the impact on the Department of
Defense, including classified information.



Mr. Sean Chamberlin, 902d Ml Group, Fort Meade, MD 20755,?. He
will testify about how the ACIC logs, including classified information.

2
FOR OFFICIAL USE BUT UNCLASSIFIED

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

32088

FOR OFFICIAL USE BUT UNCLASSIFIED

CPT Thomas Cherepko, NATO Force Command, Madrid, Spain, 28223, --
2 He will testify about the 2/10 Mountain share drive and its contents, as well as
the requirements to access it.

Col Julian Chesnutt, Defense Intelligence Agency, Bolling AFB, DC 20032:
He will testify at sentencing about the impact on a specific AOR within the
Department of Defense, including classi?ed information.

SA Charles Clapper, Arizona Branch Office - Computer Crime Investigative Unit, Fon
Huachuca, AZ, 85613, He is a chain of custody witness.

Mr. Domingo U. Conlu, US Army Human Resources Command, Fort Knox, KY,
40122, He will testify as to the authenticity of the accused's OMPF.

SGT Lorena Cooley, Headquarters and Headquarters Company (HHC), 2nd Brigade
Combat Team (2BCT), 10th Mountain Division (LI), Fort Drum, NY, 13602,

She will testify about the accused's work product and the accused's
within 2/10, including classi?ed information.

tivitics

Ms. Elizabeth Dibble, Principal Deputy Assistant Secretary, Bureau of Near Eastern
Affairs, Department of State, Washington DC, 20520, POC: Mr. Jonathan Davis?
Ms. Elizabeth O'Connor, She will testify at sentencin
about the impact to Near Eastern Affairs, including classified information.

Mr. Vann Van Diepen, Acting Assistant Secretary, Bureau of International Security
and Nonproliferation, Department of State, Washington DC, 20520, POC: Mr.
Jonathan Davis, Ms. Elizabeth O'Connor, . He will
testify at sentencing about the impact to International Security, including classified
information.

RADM Kevin Donegan, Director, Naval Warfare Integration, Pentagon, Washington,
DC, POC: LT Will Chapman, He will testify at sentencing about the
impact on operations within the USCENTCOM AOR, including classified information.

Mr. Jim Downey, Defense Information Systems Agency, Fort Meade, MD, 20755,
He will testify about Centaur logs, including potentially classified
information.

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

Atlanta, GA 30301, He is a chain of custody witness.

3
FOR OFFICIAL USE BUT UNCLASSIFIED

34.

37.

38.

39.

40.

41.

42.

43.

45.

46.

32089

FOR OFFICIAL USE BUT UNCLASSIFIED

SA Kirk Ellis, Rock Island Fraud Resident Agency, Major Procurement Fraud Unit,
Moline, IL, 61265, He is a chain of custody witness.

Mr. John Feeley, Principal Deputy Assistant Secretary, Bureau of Western Hemisphere
Affairs, Department of State, Washington DC, 20520, POC: Mr. Jonathan Davis,
- Ms. Elizabeth O'Connor, He will testify about the con
of cables originating from and sent to the Western Hemisphere on the merits and the
impact to Western Hemisphere Affairs on sentencing, including classi?ed infonnation.

Matthew Freeburg, Fort Sill, OK, 73503, He will testify about
the accused's activities while deployed.

CPT Casey Fulton (formerly Martin), 2nd Brigade Combat Team (2BCT), l0th
Mountain Division Fort Drum, NY, 13602, . She will testify about
the the accused's training, duties, and work product. including classi?ed information.

Mr. James Fung, Brookhaven National Laboratory, Upton, NY, I 1973-.
He is a chain of custody witness.

Ms. Shelia Glenn, Fort Meade, MD, 20755, She will testify about a
Department of the Army classi?ed charged document, including classi?ed information.

SA Toni Graham, Hawaii CID Of?ce, I314 l.yman Road. Building 3026, Scho?eld
Barracks, HI, 96857, She will testify about the law enforcement
investigation in Iraq.

Mr. Jacob Grant, USCENTCOM, MacDill AFB, FL, 33621,
testify about the USCENTCOM server logs, including potentially classi?ed
information.

. He will

AMB Kenneth Gross, Deputy Director, Of?ce of Career Development and
Assignments, Bureau of Human Resources, Department of State, Washington DC,

20520, POC: Mr. Jonathan Davis,? Ms. Elizabeth O'Connor,@

He will testify at sentencing about impact to South and Central As
Affairs, including classi?ed information.

CW3 Hondo llack, Joint Multinational Readiness Center, Hohenfels Military

Community, Germany, APO AE, 09173, He will testify about
the accused's work product, including classi?ed information.



FOR OFFICIAL USE BUT UNCLASSIFIED

47.

48.

49.

50.

51.

52.

53.

32090

FOR USE UNCLASSIFIED

VADM Robert Harward, USCENTCOM, MacDill AFB, FL, 33621, USCENTCOM
OSJA, He will testify as an original classi?cation authority (OCA)
that charged information was properly classi?ed, including classified information.

Mr. Ben Henwood, Senior System Administrator, USCENTCOM Intelligent Software
Solutions, Inc., Tampa, FL, 33609_. He will testify about the CIDNE
database, including potentially classified information.

Mr. John Hodges, Senior Technician, USCENTCOM Intelligent Software Solutions,
Inc., Tampa, FL, 33609, He will testify about the CIDNE database,
including potentially classi?ed information.

Mr. Patrick Hoeffel, Intelligent Software Solutions, Inc., 2001 Jefferson Davis Hwy,
Suite 909, Arlington, VA, 22202, . He will testify about the CIDNE
database, including potentially classified information.

Ms. Mary Horvath, Forensic Examiner, Federal Bureau of Investigation, Washington,
DC, 20535, . She will testify about her forensic analysis of digital
media, not belonging to the accused, including classified information.

Mr. Matthew Hosburgh, Westminster. CO 80021, He will testify
about the C3 document.

L'l" (US Navy) Thomas Hoskins, USCENTCOM, MacDill AFB, FL, 33621, --
2. He will testify about the content of charged documents containing J5
information, including classified information.



57.

58.

59.

Ms. Elisa K. (Rubin) Ivory, S2 OIC, 305th Military Intelligence Battalion, US Army
Intelligence Center and Center of Excellence, Fort Huachuca, AZ, 85613,
2 She will testify concerning requirements of being a 35F.

Mr. Albert J. Janek, Director, Office of Continuity, Department of State, Washington
DC, 20520, Duty Station: U.S. Embassy, Kabul, Afghanistan, POC: Mr. Jonathan
Davis, Ms. Elizabeth O'Connor, He will testify
about the authenticity and chain of custody of the server logs.



FOR OFFICIAL USE BUT UNCLASSIFIED

60.

61.

62.

65.

66.

67.

68.

69.

32091

FOR OFFICIAL USE BUT UNCLASSIFIED



Mr. Mark Johnson, Digital Forensics and Research Branch, Computer Crime
Investigative Unit, Quantico, VA, 22134, (- He will testify about his
forensic analysis of the accused's digital media, including classi?ed information.

AMB Patrick F. Kennedy, Under Secretary for Management, Department of State,
Washington DC. 20520, POC: Mr. Jonathan Davis, Ms. Elizabeth
O'Connor, He will testify on sentencing about the impact to the
Department of State, including classified information.



Mr. John Kirchhofer, Chief of Enterprise Strategies, Of?ce of Counterintelligence
(CI) Human Intelligence (HUMINT) Enterprise Management, Defense
Counterintelligence and Human Intelligence Center, Defense Intelligence Agency,
Bolling AFB, DC, 20032, He will testify in sentencing about the
impact to the Department of Defense, including classified infonnation.

AMB Michael Kozak, Senior Adviser, Bureau of Democracy, Rights and Labor,
Department of State, Washington DC 20520, POC: Mr. Jonathan Davis,
2/ Ms. Elizabeth O'Connor, 1 He will testify on sentencing about
the impact on individuals classi?ed as persons at risk by the Department of State,
including classified information. This testimony will n_ot include PII of any speci?c
individual.

Mr. Adrian l.amo, Carmichael. CA 95608. . He will testify regarding
his digital chat with the accused. The United States does not intend to elicit any
classi?ed information contained within the digital chat log.

CW5 Jon I.arue, Pentagon, DC, 20310, He will testify
about the content of the Apache Video.

Mr. Danny J. Lewis, Defense Intelligence Agency, Bolling AFB, DC, 20032,
He will testify about countciintelligence and the value of informati
including classi?ed information.

CPT Steven I.im, HQ, Army Division-East, Fort Meade, MD, 20755, --
. He will testify about the Mountain share drive and its contents, the
accused's training and duties, including potentially classi?ed information.



6
FOR OFFICIAL USE BUT UNCLASSIFIED

70.

71.

72.

73.

74.

75.

76.

77.

78.

79.

80.

81.

32092

FOR USE UNCLASSIFIED

Mr. Randall MacRobbie, Defense Intelligence Agency, Bolling AFB, DC, 20032,
He will testify at sentencing about a specific category of impact on the
United States Government and the Department of Defense, including classified
information.

SGT Chad Madaras, Bravo Company (B Co), 2nd Brigade Special Troops Battalion (2
BSTB), 2nd Brigade Combat Team (2 BCT), 10th Mountain Division (LI), Fort Drum,
NY, 13602, He will testify about the 35F training, 2/10 pre-
deployment training, and the use of his SIPRNET computers while deployed, including
potentially classi?ed information.

Mr. Brian Madrid, 21057 W. Western Dr. Buckeye, AZ, 85326,? He
will testify about the accused's training at AIT.

Ms. Tamara Mairena, Headquarters, Computer Crime lnvestigative Unit, Quanticochain of custody witness.

SA Mark Mander, Washington Metro Resident Agency, Computer Crime lnvestigative
Unit, Quantico. VA, 22134, (-3. He will testify about Wikileaks
operations, the investigation of the accused, and certain enemies of the United States
being in possession of information, including classified information.

SGT Alejandro Mann, 800th MP Brigade, Uniondale, NY, 11553, He
will testify about the accused's training at

*Gen. James N. Mattis, Commander, USCENTCOM, MacDill AFB, FL, 3362],
USCENTCOM OSJA, He will testify at sentencing about the impact
on USCENTCOM, including classified information.

Mr. James McCarl, Chief, Mission Integration Division, Joint IED Defeat
Organization (JIEDDO), Army Pentagon, Washington DC, 203l0,?. He
will testify on sentencing about impact concerning IEDS, including classified
information.

Mr. Vince McCarron, HQDA (3-2, Washington, DC, 20310, He will
testify about the DCGS-A system, including potentially classified information.



FOR OFFICIAL USE BUT UNCLASSIFIED

82.

83.

84.

85.

86.

87.

88.

89.

90.



92.

93.

FOFI OFFICIAL USE BUI UNCLASSIFIED

MajGen Kenneth McKenzie, USMC HQ Staff, Washington DC, POC: Maj Arum
Han, He will testify at sentencing about the impact on strategic
planning within the USCENTCOM AOR, including classified information.

Mr. James McManus, Brookhaven National Laboratory, Upton, NY, I 1973,
2 He is a chain of custody witness.

COL David Miller, BDE Modernization Command, Ft. Bliss, TX, He
will testify about the accused's misconduct and multiple investigations.

Mr. Jason Milliman, 262 Jefferson Drive West, Palmyra, VA, 22963,
He will testify about the accused's access to including potentially classi?ed
information.

Mr. James Moore, Deputy Assistant Secretary, Bureau of South and Central Asian
Affairs, Department of State, Washington DC, 20520, POC: Mr. Jonathan Davis:
Ms. Elizabeth O'Connor, He will testify about the content
of cables originating from South and Central Asia on the merits, including classified
information.

Mr. Ken Moser, USCENTCOM, MacDilI AFB, FL, 33621, . He will
testify about the information posted to the USCENTCOM OSJA SIPRNET website,
including potentially classified information.

Mr. Jeffery Motes, JTF-GTMO, Guantanamo Bay, Cuba, He will
testify about the JTF-GTMO database and the contents of compromised information,
including classified information.

Mr. Troy Moul, US Army Intelligence Center and Center of Excellence, Fort
Huachuca, AZ, 85613, He will testify about instructing the accused at
AIT.

Mr. Kin Moy, Deputy Assistant Secretary, Bureau of East Asian and Pacific Affairs,
Department of State, Washington DC, 20520, POC: Mr. Jonathan Davis,-
Ms. Elizabeth O'Connor, He will testify on sentencing about
the impact on East Asian and Pacific Affairs, including classified information.

Mr. Gerald Mundy, Information Systems Security Officer, Bureau of Intelligence and
Research, Department of State, Washington DC, 20520, POC: Mr. Jonathan Davis,

I Ms. Elizabeth O'Connor, He will testify about the
authenticity and chain of custody of the firewall logs, including potentially
classi?ed information.

8
FOR OFFICIAL USE BUT UNCLASSIFIED

94.

95.

96.

97.

98.

99.

I00.

l0l.

I02.

103.

104.

32094

FOR OFFICIAL USE BUT UNCLASSIFIED

Mr. Nicholas Murphy, Reviewer, Of?ce of Global Information Services, Bureau of
Administration, Department of State, Washington DC 20520 (When Actually
Employed), POC: Mr. Jonathan Davis, Ms. Elizabeth O'Connor,

6. He will testify as an OCA that Department of State information was
properly classi?ed, including classi?ed information.

MG Michael Nagata, Joint Staff, the Pentagon, Washington, DC, POC: LTC Patrick
O'Hara, He will testify at sentencing about the impact on a speci?c
AOR, including classi?ed information.

Lt Col (R) Martin Nehring, USCENTCOM, MacDill AFB, FL, 33621,
He will testify about the content of charged documents containing J3 information,
including classi?ed information.

CW4 Ronald Nixon, ARCYBER, Fort Belvoir, VA, He will testify
about the USF-I GAL.

SGT Daniel Padgett, Fort Leavenworth, KS, 66027, (209_ He will testify
about the accused's training and duties and his interactions with the accused while
deployed, including potentially classi?ed information.

AMB David Pearce, Deputy Assistant Secretary and Senior Deputy Special
Representative for Afghanistan and Pakistan, Bureau of South and Central Asian
Affairs, Department of State, Washington DC 20520, POC: Mr. Jonathan Davis?
Ms. Elizabeth O'Connor, He will testify about the co nt
of cables originating from Afghanistan and Pakistan on the merits, including classi?ed
information.

Mr. H. Dean Pittman, Principal Deputy Assistant Secretary, Bureau of lntemational
Organization Affairs, Department of State, Washington DC, 20520, POC: Mr.
Jonathan Davis,?/ Ms. Elizabeth O'Connor, He will
testify about the content of cables originating from International Organizations on the
merits. including classi?ed information.

Lt Col Robert Pope, USCENTCOM, MacDill AFB, FL, 33621, . He
will testify on sentencing about the impact on USCENTCOM within the AOR,
including classi?ed information.





9
FOR OFFICIAL USE BUT UNCLASSIFIED

32095

FOR OFFICIAL USE UNCLASSIFIED

I05.

106.



107. LTC Rodney Roberts, USCENTCOM, MacDill AFB, FL, 33621,
He will testify on sentencing about the impact on operations in Iraq, including
classified information.

I08. SA Calder Robertson, Europe Branch Office - Computer Crime Investigative Unit,
Funari Barracks, APO AE, 09008, DSN: He will testify about his
forensic analysis of the accused's digital media, including classified information.

109.

I 10. SA Ronald Rock, Assistant Regional Security Officer, Diplomatic Security Service,
Department of State, Washington DC, 20520, Duty Station: Consulate, Mazar-e-Shan'f,
Afghanistan, POC: Mr. Jonathan Davis, Ms. Elizabeth O'Connor,

. He will testify about the chain of custody of the ?rewall and
server logs, as well as the impact of the compromise on the US Embassy at Reykjavik,
including classified information.



I I2. CW4 Armond Rouillard, G33, US Army Network Enterprise Technology Command,
Ft. Belvoir, VA, 22060?. He will testify about the US Army computer
systems, including their values, including potentially classified information.

I I3. SGT David Sadtler, 709th Ml BN, Harrogate, UK, APO AE, 09468, DSN:
- He will testify about his interactions with the accused at 2/10 Mountain and the
accused's activities during their deployment, including potentially classi?ed material.

1 14. Mr. Doug Schasteen, Wilco Technologies, lnc., 4125 Broadway, Suite 200, Kansas
City, MO, 64106, He will testify about the authenticity of the

accused's annual Information Awareness training.

I 15. Ms. Jacqueline Scott, USCENTCOM, MacDill AFB, FL, 33621, _She
will testify about the response to the FOIA request for the Apache video, including
potentially classified material.

I I6. AMB Stephen Seehe, Deputy Assistant Secretary, Bureau of Near Eastern Affairs,
Department of State, Washington DC, 20520, POC: Mr. Jonathan Davis,
2/ Ms. Elizabeth O'Connor, He will testify about the content of
cables originating from the Near East on the merits, including classified information.

I0
FOR OFFICIAL USE BUT UNCLASSIFIED

32096

FOR USE BUT UNCLASSIFIED

1 17. SA David Shaver, US. Department of Treasury, Washington DC 20220, --
2 Ile will testify about his forensic analysis of the accused's digital media and
information posted to WikiLeaks, including classified information.

I 18. Ms. Jihrleah Showman . She will testify about
the training the accused received before deployment, the accused's statements and
activities before deployment, their duties during deployment and the accused's activities
during deployment, including potentially classi?ed information.

119.



120. SA Thomas Smith, USACIDC, Fort Gordon, GA, 30905, He will
testify about the investigation in Iraq.

121.

122.



I23.

I24.

125. Ms. Strobl, Central Intelligence Agency, McLean, VA 2210], POC: Ms.
Jennifer M., She will testify to the authenticity of the CIA Wire logs.

I26. Ms. Susan Swart, former Chief Information Officer, Bureau of Information Resource
Management, Department of State, Washington DC 20520. POC: Mr. Jonathan Davis,
Ms. Elizabeth O'Connor, She will testify at
sentencing about the impact to information systems at the Department of State,
including potentially classified information.

127.



I28. Ms. Tasha Thian, Agency Records Officer, Office of Global lnfomiation Services,
Bureau of Administration, Department of State, Washington DC 20520, POC: Mr.

Jonathan Davis, Ms. Elizabeth O'Connor, -. She will

11
FOR OFFICIAL USE BUT UNCLASSIFIED

32097

FOR USE BUT UNCLASSIFIED

testify to the authenticity of Department of State documentation, including potentially
classified information.

129. SSG Robert Thomas, Headquarters and Headquarters Troop, Support Squadron, 3d
ACR, Fort Hood, TX, He will testify about the training received at
AIT.

130. Ms. Louis Travieso, USCENTCOM, MaeDill AFB, FL, 33621, He
will testify about the content of charged documents containing J2 information,
including classi?ed information.

131.



I32. AMB Shari Villarosa, U.S. Ambassador to Mauritius, Department of State,
Washington DC, 20520, Duty Station: U.S. Embassy Port Louis, Mauritius, POC: Mr.
Jonathan Davis?/ Ms. Elizabeth O'Connor, She will
testify on sentencing about impact to the counter terrorism effort, including classified
information.

133.



134. Mr. Greg Weaver, Compliance Branch Chief. US Army Cyber Command, Ft. Belvoir,
VA, 22060 G36 Compliance Division, He will testify about
information assurance.

I35. Ms. Florinda White, CERDEC Software Engineering Directorate. Aberdeen Proving
Ground, MD, 21005, She will testify to the authenticity of
documentation.

136. SA John Wilbur, Department of Treasury, Washington, DC, 20220,
He is a chain of custody witness.

137. SA Alfred Williamson. Digital Forensics and Research Branch, Computer Crime
Investigative Unit, Quantico, VA, 22134, He will testify about his
forensic analysis of the accused's digital media.

138. Mr. Charlie Wisecan/er, Bureau of lnfomiation Resource Management, Department of
State, Washington DC, 20520 (When Actually Employed), POC: Mr. Jonathan Davis,
Ms. Elizabeth O'Connor, He will testify about the
NCD system, including potentially classi?ed information.

I39. Mr. Alex Withers, Brookhaven National Laboratory, Upton, NY, I I973, (-
2. He is a chain of custody witness.

12
FOR OFFICIAL USE BUT UNCLASSIFIED

FOR USE UNCLASSIFIED

140. RADL David Woods, Commander, JTF-GTMO, Guantanamo Bay, Cuba, POC: CDR
T. Welsh. -. He will testify as an OCA that JTF-GTMO information was
properly classi?ed, including classi?ed information.

14]. AMB Don Yamamoto, Principal Deputy Assistant Secretary, Bureau of African
Affairs, Department of State, Washington DC, 20520, POC: Mr. Jonathan Davis, rg


Ms. Elizabeth O'Connor, He will testify about the co

of cables originating from Africa on the merits, including classi?ed information.

142. Mr. Garon Young, Headquarters, Computer Crime Investigative Unit, Quantico, VA,

22134, He is a chain of custody witness.

143. AMB Marie Yovanovitch, Principal Deputy Assistant Secretary, Bureau of European
Affairs, Department of State, Washington DC, 20520, POC: Mr. Jonathan Davis,-
Ms. Elizabeth O'Connor, She will testify about the content
of cables originating from or sent to Europe or Eurasia on the merits, including
classi?ed infonnation.

I44. Mr. Joseph Yun, Principal Deputy Assistant Secretary, Bureau of East Asian Affairs,
Department of State, Washington DC, 20520, POC: Mr. Jonathan Davis,
Kl Ms. Elizabeth O'Connor. He will testify about the content of
cables originating from East Asia and the Pacific on the merits, including classified
information.

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

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

If the defense intends to produce a witness who is listed above, the defense must provide

a separate, appropriate request for that witness in accordance with Rule for Courts-Martial
(RCM) 703 and the standard aniculated in United States v. Rockwood, 52 M.J. 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 (I951).

13
FOR OFFICIAL USE BUT UNCLASSIFIED



32099

FOR OFFICIAL USE UNCLASSIFIED

ASHDEN IN
MAJ, A
Trial Counsel

Enclosure
Classi?ed Supplement to Witness List

I certify that I served or caused to be served a true copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 15 October 2012.

kl

ASHDEN FEIN
MAJ, A
Trial Counsel

14
FOR OFFICIAL USE BUT UNCLASSIFIED



32100

UNITED STATES
DEFENSE WITNESS LIST FOR
MERITS AND SENTENCING

V.

MANNING. Bradle E., PFC
U.S. Army,
Headquarters and Headquarters Company, U.S.

Army Garrison, Joint Base Myer-Henderson Hall.
Fort Myer, VA 222] I

DATED: I5 October 2012



1. On behalfof PFC Bradley E. Manning, his civilian counsel, David E. Coombs.
requests the attendance of each of the following witnesses for merits and sentencing:

Merits Witnesses
I) CPT Barclay D. Keay. HHC, 4-3| Infantry Battalion, Brigade Combat Team, 10"?

Mountain Division, Building 10210 North Riva Ridge, Fort Drum, New York 13682,
. (former night shift for the T-SCIF
for 2nd BCT). CPT Keay will testify that music. movies, and games were common
on SIPRNET machines. CPT Keay will testify that he went to a lot of people to see if
it was a problem to have media on SIPRNET because he did not think it was proper.
CPT Keay will testify that he spoke with several individuals within the T-SCIF about
this issue, but no one could provide him with an answer. PT Keay will testify that
eventually it became the norm to see soldiers listening to music. watching movies.
and playing games on SIPRNET machines. CPT Keay will also testify that CIDNE
Afghanistan SIGACTS were not generally looked at unless people got bored.

2) CPT Steven J. Lim, First Army Division East, G-2, 4550 Llewelyn Drive, Fort
Meade. Maryland 20755, CPT Lim will
also testify that the T-SCIF failed to draft a Standard Operating Procedure (SOP).
CPT Lim will testify that he disseminated the link to the U.S. Embassy cables to the
various including PFC Manning. CPT Lim gave the link to the cables to the
and the S2 shop sometime in the beginning oflanuary 2010 in order to allow
the to better understand the Iraqi political situation. PT Lim will testify that
the comments in the press that stated that the release ofthe CIDNE database
compromised key sources for the United States and put the lives of those sources at
risk are inaccurate. PT Lim will testify that any name within the IDNE database
(Iraq and Afghanistan) were not sources. PT Lim will testify that those names were
put in by a soldier who spoke to some local national and then documented the names.
CPT Lim will testify that although a name of an Iraqi or Afghani national may be in
CIDNE SIGACTS, those names were likely spelled phonetically and did not contain
the full name of the individual. PT Lim will testify that the IDNE database is
basically a big historical document and something that was used to create work
products. P'l? Lim will testify that there were no restrictions on what an analyst
could choose to save either to his computer or on computer disk from the SIPRNET



"1 ?no:
PAGE PAGES



3)

4)

32101

or CIDNE. CPT Lim will testify that he would recommend saving to laptop or
computer disk. PT Lim will testify that he would make this recommendation just in
case the SIPRNET went down or the shared drive went down or a ?le on the shared
drive or SIPRNET became corrupted. CPT Lim will testify that he saved items from
the SIPRNET to his individual computer or computer disk on a regular basis. PT
Lim will testify that if an analyst wanted to harm the United States or aid the enemy,
he believes an analyst would have access to far more damaging information that old
signi?cant activity reports. CPT Lim will also testify that there were no stated
restrictions on what an analyst could look at on SIPRNET. CPT Lim will testify that
there were no restrictions on what an analyst could choose to save from the
SIPRNET. CPT Lim will testify that he believed PFC Manning?s military experience
was ?very minimal.? He knew that PFC Manning was only in the Army for a few
years and that Fort Drum was PFC Manning?s ?rst duty assignment. In spite of being
junior in the Army, CPT Lim will testify that PFC Manning did become very good at
using programs on the DCGS-A machines that the used. CPT Lim will
testify that PFC Manning got really good at working with graphs and charts. Since he
was so good, CPT Lim will testify that the S2 shop would give PFC Manning projects
for pattern analysis or historical trends using data, graphs and numbers.

CPT Casey Fulton, 2931 S. Lakeshore Drive, Agoura, California 91301,-
CPT Fulton will testify that PFC Manning was

frequently assigned computer/data entry based products that required a certain level of
computer skills. CPT Fulton will testify that PFC Manning was assigned these tasks
because he was good with computers. CPT Fulton will testify that around December
of 2009, a few of the soldiers in the shop were gathered around SPC Showman?s
computer to watch a helicopter insurgent video. CPT Fulton will testify that when
she returned from leave in April 2010, she asked the soldiers in the shop if they had
seen the video of the journalists being killed on the news. CPT Fulton will testify that
were allowed to look at anything that they wanted on the SIPRNET. CPT
Fulton will testify that it was within the scope of PFC Manning?s job, as an all source
analyst, to look at information concerning countries other than Iraq. CPT Fulton will
also testify that it was part of an all source analyst?s job to review material concerning
the political situation and other events or circumstances concerning other countries.
CPT Fulton will testify that she would not discourage PFC Manning from researching
on the SIPRNET or from reading information that did not concern Iraq. CPT Fulton
will testify that the whole point of PFC Manning?s job was fusion. PT Fulton will
testify that an all source analyst needs to consider and evaluate ?all sources? to
adequately perform their job.

CPT Thomas M. Cherepko, NATO Force Command Madrid. Madrid, Spain 09649,
CPT Cherepko was the assistant
S-6 for the 2BCT. CPT Cherepko will testify that the information assurance
procedures were not being followed by the brigade. CPT Cherepko will testify that he
knew that soldiers would go to the local market and buy movies, music and games
and place the information on their SIPR and NIPR computers. CPT Cherepko will

5)

32102

testify that he tried to address the issue with his leadership but that the leadership did
not seem to care and nothing was done. CPT Cherepko will testify that when the
mood struck him, he would scan the shared drive for music, movies and games and
that he would find this material on the shared drive every day. CPT Cherepko will
testify that every time that he found unauthorized material on the
drive, he would delete it. CPT Cherepko will testify that the brigade did not receive a
formal IA certification and accreditation inspection during its tour, contrary to the
guidance in Directives. PT herepko will also testify that he knew about
personal software being loaded on the SIPRNET and he would remove the software
when he came across it. PT Cherepko will testify that the Brigade did not conduct
any training on what soldiers could and could not add on their computers while in
theatre. CPT herepko will testify that the shared drive did not have any restrictions
on it. CPT Cherepko will testify that PFC Manning did not need to hack into
anything to view information on the shared drive or on SIPRNET. CPT Cherepko
will testify that PFC Manning was given access to the network and did not need to
break any PT Cherepko will testify that the brigade did not put out any
limitations on what a person could look at on the shared drive. Finally, CPT
Cherepko will testify that the brigade did not put out any limitations on what a person
could chose to save to their individual computer or to CD.

CW2 Joshua D. Ehresman. HSC, HHBN 2d ID. Camp Red Cloud, Korea APO AP
96258, .- CW2 Ehresman will
testify concerning his expectations of the that worked within the S-2 Section.
Specifically, CW2 Ehresman will testify concerning the guidance that he provided
and of the performance of PFC Manning. W2 Ehresman will testify that
were pemiitted to save infonnation from the SIPRNET. CW2 Ehresman will testify
that there was no need for authorization to burn information down on to CD. W2
Ehresman will testify that an analyst could save even a large amount of information
for their own person library to refer back to from time to time. W2 Ehresman will
testify that an analyst could view the Afghanistan CIDNE SIGACTS and database.
CW2 Ehresman will testify that he viewed the Afghanistan database while in Iraq.
CW2 Ehresman will testify that as long as you did not download a program, you
could run any program from CD on SIPRNET. W2 Ehresman will testify that the
practice of running a program from a CD or saving an executable ?le was permitted
by the S2 shop. CW2 Ehresman will testify that he believed PFC Manning was well
known to personnel in the S2 Section due to his computer skills and previous
computer background. CW2 Ehresman will testify that Manning never told me
that he had no loyalty to the United States." This testimony will be used to rebut any
testimony offered by the Government from Ms. ihrleah Showman. W2 Ehresman
will testify that the CIDNE database was just a historical record of what happened
from the point of view on any given day. W2 Ehresman will testify that if an
analyst truly wanted to harm the U.S., other things such as future operations, troop
movements, human intelligence reports. or the capabilities of our military equipment
would be exponentially more damaging that SIGACTS.

6)

7)

3)

32103

W01 Kyle J. Balonek. I-IHBN. G2. 10"? Mountain Division. Fort Drum, New York
l3 W01 Balonek will testify that it
was common for soldiers to play music and watch movies in the T-SCIF. W01
Balonek will testify that music was on the shared drive and allowed by the S-2. W01
Balonek will testify that no one was inspecting soldiers as they entered or exited the
T-SCIF. W01 Balonek will testify that soldiers were allowed to bring in bags and
writable CD3. W01 Balonek will testify that an analyst could look at anything they
wanted on the SIPRNET. Additionally, he will testify that an analyst could save any
information that they wanted from the SIPRNET on either the hard drive of their
computer or, if properly marked, on to a CD.

SFC Paul David Adkins, HHC. BCT, Fort Drum. New York
Adkins will testify that he had PFC
Manning work on improving an existing Microsoft Access Program. The program
was initially designed to track signi?cant enemy activity and contained historic data
between 2005 and 2007. The data pertained to activity centered primarily in
Radwaniyah, ustifiyah, Mahmudiyah and the Sunni triangle South of Baghdad and
included coalition and enemy BDA statistics. The program was not used to actively
collect intelligence when PFC Manning modi?ed it. SFC Adkins will testify that he
hoped PFC Manning could improve its performance and make it a reliable backup
system in case their tracker in theater failed or was unreliable. SFC Adkins will also
testify that he instructed that they could add programs to their DCGS-A
computers that were needed for ?mission essential? purposes.

SGT David A. Sadtler. 709 Ml Battalion, U.S. Army Garrison, Wiesbaden, (DSN)
. He is a 35N signal intelligence
analyst. SGT Sadtler will testify that a lot of people had support from other people in
their unit, but that he didn?t believe PFC Manning had any support from his chain of
command. SGT Sadtler will testify that PFC Manning voiced his concern that no one
in his immediate chain of command seemed to care about the mission. SGT Sadtler
will testify that he recalls an incident when PFC Manning found a report that
apparently upset him. SGT Sadtler will testify that PFC Manning had found in the
report that some lraqis or possibly some Moroccans were being arrested at a printing
press facility. SGT Sadtler will testify that attached to this report was some evidence
which had been collected; however, this infonnation was in Arabic. SGT Sadtler will
testify that the translation of the Arabic indicated that the arrested individuals were
simply trying to expose comiption within the Iraqi government. SGT Sadtler will
testify that PFC Manning tried to show the translation to his superiors. SGT Sadtler
will testify that PFC Manning was very upset about the issue. SGT Sadtler will testify
that everyone stonewalled PFC Manning on the issue as no one thought it was a big
deal. SGT Sadtler will also testify that his main job was to document SIGACT
reports for the battalion. SGT Sadtler will testify about the process for the
development of a SIGACT and how the information went from the unit to ultimately
within the CIDNE database.

32104

9) SGT Lorena Cooley. 210 BSB, 10220 N. Riva Ridge Loop, Fort Drum, New
York, 13602, SGT Cooley will testify
that at the time of the deployment she was a Specialist. SGT Cooley will testify that
she worked with PFC Manning. During her time in the T-SCIF, she will testify that it
was normal for to save information from the SIPRNET on to the shared
drive. SGT Cooley will also testify that it was normal to save information on to
individual computer hard drives and CD. SGT Cooley will testify that there was no
restriction on what an analyst could choose to save from the SIPRNET. SGT Cooley
will also testify that she recalls PFC Manning being tasked to rebuild and update a
program by SFC Adkins. SGT Cooley will testify that she believes that PFC
Manning built the shell for the program on the NIPERNET and then transferred it to
the SIPRNET based upon SFC Adkins? guidance. SGT Cooley will testify that PFC
Manning never made any anti-U.S. statements. SGT Cooley will also testify that she
is aware that PFC Manning ?led an Equal Opportunity complaint against then SPC
ihrleah Showman. SGT Cooley?s testimony will be used to rebut any testimony
offered by the Government from Ms. Jihrleah Showman.

10) SGT Sheri M. Walsh, 13208 Bumes Lake Drive, Tampa, Florida 33612,?-
SGT Walsh will testify about the work that she did
along with PFC Manning during their time in the T-SCIF. She will also testify about
the fact it was normal for to save information from on the shared drive,
on their computer hard drive. or on writable compact disks.

1 Chad Madaras. HHC, 2-I4 IN. 2BCT, 10"? MTN DIV, Fort Drum, New York,
13602, . SGT Madaras will testify that
he was a fellow analyst working with PFC Manning. SGT Madaras will testify that at
the time of the deployment he was a Specialist. SGT Madaras will testify that PFC
Manning had spoken to him about being interested in U.S. politics and potentially
running for political office at some point in the future. SGT Madaras will testify that
PFC Manning was known to be the ?computer guy" in the unit. SGT Madaras will
testify that PFC Manning was asked in the past to work on the company?s computers
when they were not operating properly. SGT Madaras will testify that prior to the
deployment, he received training with PFC Manning on the DCGS-A machines that
the would be using in Iraq. SGT Madaras will testify that during his training
he was never told that he could not add executable files on his desktop. SGT Madaras
will testify that the DCGS-A machines did not have M-IRC Chat installed as one of
its base programs. SGT Madaras will testify that he and other believed M-
IRC Chat was a mission essential program. SGT Madaras will testify that he had PFC
Manning add M-IRC Chat on his DCGS-A machine. SGT Madaras will testify that
PFC Manning added M-IRC Chat as an executable program on his desktop. SGT
Madaras will testify that when you clicked on the desktop icon, Chat would
then start. SGT Madaras will testify that all of the other added M-IRC Chat
to their desktops too. SGT Madaras will also testify that the DCGS-A machines
would often crash in Iraq. SGT Madaras will testify that when the DC GS-A machines

32105

would crash, PFC Manning was frequently asked to look at the computer to see if he
could ?x the problem.

I2) Mr. Cassius Hall, IS Division. INSCOM, G2,
Mr. Hall will testify as an intelligence analyst expert
witness. Mr. Hall will testify that he conducted open source research on each of the
charged SIGACTS in Speci?cations 5 and 7 of Charge 11. Mr. Hall will testify that
the vast majority of the infonnation within the SIGACTS from Speci?cations 5 and 7
of Charge 11 was already in the public realm prior to PFC Manning?s alleged
misconduct. Mr. Hall will explain why the SIGACTS are basically a historical
document of little intelligence value to the enemy. Mr. Hall will testify about how
SIGACTs are used by intelligence to create their work product. Mr. Hall will
also testify that videos charged in Speci?cations 2 and of Charge II are similar to
countless such videos currently available on the intemet. Mr. Hall will testify that he
does not believe that anything within the charged videos could be used to the injury of
the U.S. or to the bene?t of any foreign nation. Mr. Hall will testify that he basis his
testimony on the Govemment?s ovm classi?cation detennination that the video
charged in Speci?cation 2 of Charge II was unclassi?ed and his review of that video
as well as the video charged in Speci?cation of Charge ll. Finally, Mr. Hall will
testify about the other charged documents in Speci?cations 3, l0. and 15.

I3) Ms. Jihrleah W. Showman, Hope Mills, North Carolina, 28348, Ms.
Showman will testify that at the time of the deployment she was a Specialist. Ms.
Showman will testify that shortly after the deployment she from the Army.
Ms. Showman will testify that she believes that she was the first in the to see
the ?Apache video? which she found of her own accord in a network folder. Ms.
Showman will testify that she called CW2 Ehresman, SSG Balonek, and another
soldier over to see the video. Ms. Showman will testify that over the next few days,
several of the T-SCIF personnel debated about whether the video showed a camera or
a rocket propelled Grenade (RPG) launcher and whether the actions of the Apache
crew were appropriate under the circumstances. Ms. Showman will also testify that
she had another soldier add Chat to her computer. Ms. Showman will testify
that she viewed M-IRC Chat as a mission essential program. Ms. Showman will
testify that the program was not added by Mr. Milliman. Ms. Showman will testify
that M-IRC Chat was added to her desktop as an executable ?le. Ms. Showman will
testify that you would click the icon on the desktop and the program would then start.
Ms. Showman will also testify that she was aware that PFC Manning had ?led an E0
complaint against her.

l4)Colonel (Retired) Morris Davis, Howard University School of Law, 2900 Van Ness

Street, N.W., Washington. DC 20008,
Col. Davis will testify as an expert witness. Col. Davis
will testify that he was appointed to serve as the Chief Prosecutor for the Office of
Military Commissions in September of 2005. Col. Davis served as the Chief
Prosecutor from then until October of 2007. As the former Chief Prosecutor, Col.



32106

Davis will testify that he is very familiar with Detainee Assessment Briefs (DABS).
Col. Davis will testify that the DABs were basically summaries of biographic and
capture information pertaining to a speci?c detainee prepared by the Joint Intelligence
Group of Joint Task Force Guantanamo. Col. Davis will testify that none of
the memorandums contained actual intelligence reporting or names of sources.
Instead. Col. Davis will testify the DABs were basically memorandums written for the
Southern Commander in order to provide the command and other governmental
of?cials general infonnation about a speci?c detainee, and were not viewed as being
particularly sensitive infonnation. Col. Davis will testify that he met with members
of the Obama transition team assigned to work on Guantanamo detainee policy in late
November or early December 2008 and he was aware that President Obama created a
Guantanamo Review Task Force (GRTF) on 22 January 2009. He will testify that the
GRTF was charged with conducting a review of each of the detainees at GTMO. He
will testify that the DABs were a very small part of the overall review by the GRTF.
Col. Davis will testify that in 2006 and 2007. the Pentagon released the names of all
GTMO detainees and also released the records concerning the Combatant Status
Review Tribunals (CSRT) and the Administrative Review Boards (ARB). Col. Davis
will testify that the information within the release of the names, the and the
ARBs would detail much. if not all. of the information that would be contained within
the DABs.

15) Mr. Jason Milliman, Palmyra. VA. 22963,-. Mr. Milliman will testify
that he was a civilian contractor in Iraq assigned to work as the DCGS-A Field
Software Engineer. Mr. Milliman will testify that he worked in this position from
November 2007 to December of 2010. Mr. Milliman will testify that the only
machines he worked on were the DCGS-A machines. Mr. Milliman will testify that
military members were not authorized to work on the DC SG-A machines. Mr.
Milliman will testify that the DCGS-A machines would break down and that he
would attempt to ?x them when they did break down. Mr. Milliman will testify that
heat was a major problem for the DCGS-A machines. Mr. Milliman will testify that
the DCGS-A machines would run hot even in an air conditioned room. Mr. Milliman
will testify that the DCGS-A machines also sucked in a lot of dust. Mr. Milliman will
testify that due to running hot, the heat. and the dust the DCGS-A machines were
prone to crash. Mr. Milliman will testify that the DCGS-A machines would also
crash if a user was storing a lot of ?les on the desktop. Mr. Milliman will testify that
when a DCGS-A machine crashed, sometimes you could recover infonnation and
sometimes you couldn?t recover information. Mr. Milliman will testify that if a
soldier wanted to add software to their DC GS-A machine, they were supposed to ask
him for pennission. Mr. Milliman will testify that he was the only one with
administrator rights on the DCGS-A machines. Mr. Milliman will testify that he was
asked to install M-IRC Chat on the DCGS-A machines. Mr. Milliman will testify that
M-IRC Chat was not the collaboration tool that the DCGS-A machine had as part of
its approved package. Mr. Milliman will testify that he obtained approval to install a
speci?c version of Chat on the DCGS-A machines. Mr. Milliman will testify
that as pan of his job, he noticed that some soldiers had placed. programs such as



16) Mr. Trent Struttmann. Digital Forensic Examiner. Cyber Agents. Inc.,

32107

executable ?les on their desktop of the DCGS-A machines without authorization.

Mr. Milliman will testify that he knew of a couple of officers who always wanted to
add the latest version of something and they would take it upon themselves to install
in on the desktop. Mr. Milliman will testify that he had situations where an S-l
Administrator would run a password crack ?le in an attempt to bypass his
administrator password so that they could add software to the DCGS-A machine
without his approval. Mr. Milliman will testify that every unit, to include the 2-10
BCT thought the DCGS-A machines were their machines. Mr. Milliman will testify
that the units thought it was their network so they would do whatever they liked with
the machines and add whatever they wanted to. Mr. Milliman will testify that he
would tell the units they couldn?t do that. Mr. Milliman will testify that soldiers told
him that they were adding software they felt was mission essential. Mr. Milliman will
testify that he wasn?t actively looking for unauthorized software being added on the
desktop. Mr. Milliman will testify that the practice of adding unauthorized software
could have been common and he would not have been told. Mr. Milliman will testify
that the DC GS-A machines could have been configured to prevent the ability to save
executable files to the desktop. Mr. Milliman will testify that this was not done. Mr.
Milliman will testify that he does not know what DCGS-A machines were not
configured to prevent the ability to save executable ?les to the desktop.



Struttmann will testify as an expert witness. Mr. Struttmann will testify about his
inspection of hard drives provided to him from the Govemment. Mr. Struttmann will
testify that the hard drives were computers from PFC Manning?s unit during the
deployment. Mr. Struttmann will testify that his inspection of the hard drives
disclosed the presence of thousands of unauthorized games, music ?les, movie tiles
and software on the various T-SCIF computers.

I7) Mr. Adrian Lamo. Carmichael, CA 95608, Mr. Lamo will testify

that he had an instant messenger chat conversation with PFC Manning between 21
May and 26 May 2010. Mr. Lamo will testify that during that conversation PFC
Manning told him that if he were more malicious he could have sold the information
to China or Russia. Mr. Lamo will testify that he asked PFC Manning why he didn?t
sell the classified information to China or Russia. Mr. Lamo will testify that PFC
Manning responded that ?because its public it belongs in the public
information should be another state would just take advantage of the
try and get some edge ifit is out in the it should be for a
public good.? Mr. Lamo will also testify that he asked PFC Manning if he could be a
spy. Mr. Lamo will testify that PFC Manning responded, could never be a spy.
Spies don?t post things for the World to see."

18) Mr. Zachary Antolak
Mr. Antolak will discuss an instant messenger

chat conversation that he had with PFC Manning over the course of six months in

32108

2009. The conversation began on 21 February 2009 and ended on 1 1 August 2009.
During that conversation, Mr. Antolak will testify that PFC Manning stated that he
was reading a lot more and delving deeper into philosophy and politics. Mr. Antolak
will testify that PFC Manning stated that he was hoping to apply what he was learning
in his current position as an analyst to provide more infonnation to the officers above
him and to his commanders. Mr. Antolak will testify that PFC Manning was hoping
that the information he provided to his of?cers and commanders would help save
lives. Mr. Antolak will also testify that PFC Manning told him that he was ?more
concerned about making sure that everyone, soldiers, marines, contractors, even the
local nationals, get home to their families.? Mr. Antolak will testify that PFC
Manning went on to say that he felt ?a great responsibility and duty to people." Mr.
Antolak will testify that PFC Manning stated that he believed what the Army tries to
make itself out to be ?a diverse place full of people defending the male.
female, black, white, gay. straight, Christian, ]ewish_, Asian, old or Mr.
Antolak will testify that PFC Manning told him that it didn?t matter to him what a
person?s background was since ?we all wear the same green uniform. During the
same conversation, Mr. Antolak will testify that PFC Manning told him ?sometimes
wish it were all black and white like the media and politicians present him.
he?s the bad guy, oh and he, he?s the good all shades of blurry grey." Mr.
Antolak will testify that PFC Manning also told him that he constantly had foreign
affairs on his mind. Mr. Antolak will testify that PFC Manning stated that ?one of the
bad parts of the job, [was] having to think of bad stuff.? Finally. Mr. Antolak will
testify that PFC Manning told him that he wanted to pursue a career in politics after
going to college.

19) Mr. Charles Ganiel, Command SSO, HQ ATEC, Aberdeen Proving Ground,
Maryland 21901, Mr. Ganiel will
testify as a security expert witness. Mr. Ganiel will testify that he conducted open
source research on each of the charged diplomatic cables in Specification 13 of
Charge ll. Mr. Ganiel will testify that the vast majority of the information within the
charged diplomatic cables from Specification 13 of Charge ll was already in the
public realm prior to PFC Manning?s alleged misconduct.

20) Professor Yochai Benkler, Jack N. and Lillian R. Berkman Professor for
Entrepreneurial Legal Studies, Harvard Law School; Faculty Co-Director, Berkman
Center for lntemet and Society. Harvard University, Hauser 304, (-
Professor Benkler will testify as an expert witness
concerning the history of the WikiLeaks organization and how it was viewed prior to
the charged leaks. Professor Benkler will testify that at the time PFC Manning would
have given information to WikiLeaks, that WikiLeaks was viewed as a journalistic
organization with an impressive history of exposing fraud and corruption within
govemments and corporations. Professor Benkler will testify about an article that he
wrote in 201 entitled Free Irresponsible Press: WikiLeaks and the Battle Over the
Soul of the Networked Fourth Estate." See 46 L. Rev. 31 l, 201 1. As
part of that article, Professor Benkler reviewed the publicly available copy of the



32109

document charged in Speci?cation 15 of Charge ll. Professor Benk|er?s article cites
and extensively references the document charged in Speci?cation 15 of Charge ll.
Professor Benkler will testify about how the U.S. Government overstated and
overreacted to the leaked documents and WikiLeaks. Professor Benkler will also
testify how the traditional media played a role in perpetuating the overstated and
overheated public response by government actors, both administrative officials and
elected representatives. Professor Benkler will testify that the Govemment?s
overreaction resulted in WikiLeaks being viewed as a security threat as opposed to a
legitimatejoumalistic endeavor. Finally, Professor Benkler will testify that
WikiLeaks is in fact ajoumalistic endeavor, no different for legally pertinent
purposes than the New York Times, the Washington Post, or a wide range of smaller
journalistic publications.

2l)Mr. Daniel Cindrich, il; Intelligence and
Security Analyst. Information Dominance Warfare Quali?ed Center for
Army Lessons Learned (CALL), U.S. Army Combined Anns Center, Fort
Leavenworth, Kansas 66027. Mr. Cindrich will testify as an expert witness. Mr.
Cindrich will testify that as an intelligence analyst for CALL, one of their
responsibilities is put out rapid adaption information to the field. Mr. Cindrich will
testify that rapid adaption is a process whereby information is analyzed and
disseminated in a timely manner relative to the criticality of actions required for
soldiers and leaders to adapt that information to current operations and
(doctrine, organization, training, material. leadership education, personnel, and
facilities) development. Mr. indrich will testify that rapid adaption is a process that
is designed to save soldier?s lives and improve the effectiveness and/or efficiency of
Army operations. Mr. Cindrich will testify that since the charged leaks, CALL has
had no direct or indirect tasking to collect. analyze. or disseminate lessons learned on
the WikiLeaks incidents or the information publicly disclosed in this case.

Sentencing Witnesses
22) COL David M. Miller, Brigade Modernization Command, Fort Bliss, Texas 799l6.

Fonner 2nd BCT Commander. COL

Miller will testify that the brigade did not want to take the wrong personnel forward,
nor did the brigade want to leave a large rear detachment behind for a small staff to
manage and lead. COL Miller will testify that he expected the leaders in the Brigade
to identify those soldiers who should not deploy. COL Miller will testify that his S-2,
the officer in charge of PFC Manning, MAJ Clifford Clausen, was not up to the
standard of performance that he expected out of someone in that position. COL
Miller will testify that based upon his discussions with then LTC Paul Walter and
LTC Brian Kems, COL Miller decided it was best to remove MAJ lausen from his
position as the S2 and place PT Lim into that job. COL Miller will testify that from
his perspective, the issues surrounding PFC Manning should have been something
that the S2 personnel would have been more involved in than the company. COL
Miller will testify that there were several issues that may have impacted the response
to PFC Manning?s issues. First, during that time period, the former company



23) CAPT David L. Moulton, University Institute,

32110

commander, MAJ Elijah Dreher was relieved over property accountability and due to
the fact he was not making good decisions. Second, MSG Adkins, the NCOIC in the
S2 Section, was ?marginal, but not bad enough to either relieve or replace.? COL
Miller will testify that then MSG Adkins was technically competent but that he lacked
leader skills expected of a MSG. COL Miller will also testify that commanders (in
conjunction with their unit security manager) are allotted 30 days to submit an initial
DA 5248-R following the discovery of credible derogatory information on a soldier.
COL Miller will testify that after the initial DEROG is submitted and processed by
the unit has 90 days to submit a follow-up 5248-R if there is a pending
investigation or adverse action taken summary court-martial). COL Miller will
testify that once the investigation/proceedings are completed and the soldier has been
cleared/charged of offense. the unit must submit a ?nal DEROG. In this case, COL
Miller will testify that SFC Adkins failed to keep the chain of command infonned of
PFC Manning?s emotional and mental condition. COL Miller will testify that this
failure resulted in the command not submitting a DEROG in a timely manner.



. CAPT
Moulton will testify as an expert witness. CAPT Moulton will testify that PFC
Manning was gay and was suffering from Gender ldentity Disorder (GID) before and
during the deployment. CAPT Moulton will testify that PFC Manning had no ability
to turn to mental health for assistance given the fact that he would be recommended
for separation if he did. Consequently. PFC Manning?s struggles compounded and
started to erode his ability to function properly while at work. CAPT Moulton will
testify that PFC Manning?s high IQ and social ineptness compounded these struggles.
CAPT Moulton will testify that PFC Manning had regressed stages of development
and was still in the post-adolescent idealistic stage where he believed he could change
the world and make the world a better place. CAPT Moulton will testify that PFC
Manning's idealism along with a narcissistic personality trait resulted in PFC
Manning believing that he was capable of making the detennination of what
information should and should not be released for the public good. CAPT Moulton
will testify that PFC Manning struggles for acceptance and suffers from a mild fonn
of Asperger?s. CAPT Moulton will testify that PFC Manning?s condition makes it
difficult for him to pick up on social cues and causes him to sometimes say or do
things that others might take offense to. but that he does not intend or realize is
offensive. CAPT Moulton will testify that PFC Manning?s condition would make it
difficult for him to make close friends. CAPT Moulton will testify that due to his
struggle for acceptance, PFC Manning would seek approval from others that what he
is doing is the right thing. CAPT Moulton will testify that this would also cause PFC
Manning to be very sensitive to criticism or someone telling him that he has done
something wrong. CAPT Moulton will testify that this condition is undoubtedly why
PFC Manning reached out to Mr. Adrian Lamo. Ultimately, CAPT Moulton will
testify that PFC Manning?s actions can be explained as an effort to do what he
believed was the right thing for the right reason but under ?awed reasoning.

32111

24) LTC Brian Kems, Old Dominion University. Brigade Cadet Command, Rollins
Hall. Room 1 19, Norfolk, Virginia 23529
(Former Executive Officer for 2nd BCT). LTC Kems will testify that he was MAJ
Clausen?s direct supervisor. LTC Kerns will testify that he believed that MAJ
lausen could not provide COL Miller with accurate or timely estimates or
intelligence, and could not talk to COL Miller in a way that served the Commander?s
needs. LTC Kems will testify that the brigade commander ?nally lost confidence in
MAJ Clausen and made the decision after approximately 6 months to move him.
LTC Kerns will testify that the unit did not conduct a fomial relief for cause, but
moved him to a transition team. According to LTC Kems, MAJ Clausen?s
performance was weak, but not so weak as to warrant a relief for cause. LTC Kems
will testify that he did not believe MAJ Clausen was a strong leader. LTC Kems will
testify that MAJ lausen tried to decentralize operations but that he didn?t have
enough oversight to control the S-2 Section. LTC Kems will testify that MAJ
lausen empowered junior members who were too inexperienced to do the job and
did not step in to correct a situation when the junior member made a mistake. LTC
Kems will testify that MAJ Clausen was unable to mentor or develop younger officers
and didn?t have much direct control over the shop. LTC Kems will also testify that
MAJ Clausen was handicapped by weak NCO leadership in his shop. Speci?cally,
LTC Kems will testify that MAJ Clausen?s NCOIC. then MSG Adkins, was not an
effective leader. LTC Kems will testify that both MAJ Clausen and MSG Adkins
were weak leaders. LTC Kems will testify that he was unaware of any leadership
guidance provided in the S2 sections regarding enlisted personnel management. LTC
Kems will testify that it did not surprise him that MAJ Clausen put out information
that Warrant Officers and Noncommissioned Of?cers were to defer all management
responsibilities to MSG Adkins. LTC Kems will testify that perhaps the command
was too generous with MAJ Clausen and that removing him from his position earlier
would have been advantageous. LTC Kems will testify that he believes PFC
Manning?s mental and emotional issues were more than enough to put others at risk
and should have resulted in an immediate DEROG. LTC Kems will testify that he
did not know anything about PFC Manning?s conduct until a recommendation for
separation was made by the chain of command. LTC Kems will testify that none of
the mental or emotional health concerns, prior to May of 2010, made it to his level.
LTC Kems will testify that the failure to properly DEROG PFC Manning?s was the
unit?s biggest failure. LTC Kems will testify that he believes that the unit should
have pulled PFC Manning?s access to classified information much earlier. LTC
Kems will testify that the unit should have recognized him as needing help and that
his condition made him unfit for service as an intelligence analyst. LTC Kems will
testify that the assistant S6 for the brigade, CPT Cherepko, came to him with concerns
about unauthorized personal media on SIPRNET machines. LTC Kerns will testify
that according to CPT Cherepko. personnel were putting unauthorized media on
computers such as programs, games, videos, and music. LTC Kems will testify that it
was fairly common when the unit arrived to see games, music and movies on the
SIPRNET. LTC Kems will testify that he believed that it was fairly common across
lraq. LTC Kems will testify that he tried to get the staff to do the right thing. but



4..

32112

media on the SIPRNET continued to be the standard. LTC Kems will testify that at
no point was UCMJ punishment applied to those who were placing unauthorized
information on SIPRNET. LTC Kems will testify that with respect to the media on
the SIPRNET, he believed that the Anny had become too comfortable working on
SIPRNET while deployed. LTC Kems will testify that it is his opinion that this may
have bred some complacency because of the ease of access. LTC Kems will testify
that he believes that most soldiers did not realize that placing music and other media
on SIPRNET computers was wrong because of how prevalent those items were across
lraq. LTC Kems will testify that he also believes that Garrison physical security
regulations would make SIPRNET too impractical for use in combat and would
negate our ability to effectively use SIPRNET. LTC Kems will testify that after PFC
Manning was arrested. COL Miller ordered him to take a complete look at INFOSEC
across the brigade. LTC Kems will testify that he formed a working group consisting
of the SGM, S2, S6 and I0 personnel to look at how the brigade was operating.
Based upon this review, LTC Kems will testify that the S6 removed universal ability
to write to disks; there was additional compartmentalizing of information within the
BCT based on a need to know; the S6 instructed staff on how to lock out directories
and the brigade established an SOP on the implementation for reviewing infractions
for potential DEROG actions.

25) MAJ Elijah A. Dreher, Shaw AFB, South Carolina 29152,

. MAJ Dreher will testify that he
had very little interaction with the S2 shop. MAJ Dreher will testify about the
guidance he gave regarding whether soldiers would deploy. MAJ Dreher will testify
that he not made aware of any effort to keep PFC Manning from deploying. MAJ
Dreher will testify that his understanding was that PFC Manning?s issues came about
after deploying. MAJ Dreher will testify that he was not aware that SFC Adkins
recommended to PFC Manning that he self-refer to Mental Health or that PFC
Manning even went to Mental Health prior to the deployment. MAJ Dreher will also
testify that he was not adequately infonned of PFC Manning?s mental health issues by
MAJ Clausen or SFC Adkins.

26) MAJ Clifford D. lausen, 700 Aspen Street, Aurora. Colorado 80017,

. MAJ Clausen will testify that he was
the 2/10 BCT S-2 until being replaced by CPT Lim. MAJ Clausen will testify that
SFC Adkins did tell him about an outburst by PFC Manning before the deployment,
but that he does not remember SFC Adkins having a conversation with him about
leaving PFC Manning on rear detachment. MAJ Clausen will testify that he did not
recall talking to the company commander about PFC Manning?s behavioral health
issues. MAJ Clausen will testify that it was his practice to not take many issues
outside of the S2 Shop, and that he believed the supervision policy of having every
issue go through SFC Adkins was fine. Finally, MAJ Clausen will testify that music
CD5 were allowed in the T-SC IF.



32113

27) CPT Matthew W. Freeburg. Building 1607, Randolph Road, Fort Sill, Oklahoma
73502, - Former Company
commander and property book holder for all the computers within HHC, 2BCT. CPT
Freeburg will testify that he never received any information from the S2 Section
concerning any of PFC Manning?s mental or emotional issues until after the alleged
assault of SPC Showman. CPT Freeburg will testify that after the alleged assault, he
removed PFC Manning from the T-SCIF and sent him to work in the supply room.
CPT Freeburg will testify that he then gave PFC Manning an Article 15 reducing him
from SPC to PFC. Along with the Article 15, CPT Freeburg will testify that he filled
out a DEROG fonn in order to suspend PFC Manning?s security clearance. CPT
Freeburg will testify that he then went to CPT Worsley at Behavioral Health to
discuss PFC Manning?s condition. CPT Freeburg will testify that CPT Worsley told
him that PFC Manning?s troubles were deeper than the Anny could fix and that he
should be separated. CPT Freeburg will testify that he then sent PFC Manning to
CPT Critchtield for an evaluation. Based upon the mental health recommendations.
CPT Freeburg will testify that he initiated the chapter paperwork to separate PFC
Manning. CPT Freeburg will testify that after he became aware of the full extent of
PFC Manning's previous emotional and behavioral problems, that it was shocking to
him that something more serious had not been done to address PFC Manning?s issues
prior to him allegedly assaulting SPC Showman and receiving an Article IS. CPT
Freeburg will testify that he was aware that personnel had placed video games,
movies, and music on the SIPRN ET drive.

Michael R. Johnson, Brigade, 25"? Airbome Inf. Div, Joint Base Elmendork-

Richardson. AK 99505. - CPT
Johnson will testify that SFC Adkins was in charge of all enlisted responsibilities.
CPT Johnson will testify that whenever he engaged the soldiers on issues as a leader
that he was told to back off by SFC Adkins, CPT Lim, and MAJ Clausen. CPT
Johnson will testify that the S2. MAJ Clausen. did not set standards for the unit.
Based upon this lack of leadership, CPT Johnson will testify that a lot of conduct was
ignored. CPT Johnson will testify that he remembers venting to MAJ Clausen and
SFC Adkins about how nothing was being done to address PFC Manning?s mental
and emotional issues. CPT Johnson will state that when he addressed these concerns
to MAJ Clausen and SFC Adkins, he was told that he needed to stay in his lane. After
the change in leadership within the S2 Section, PT Johnson will testify that all of the
officers sat down to discuss soldier standards in an attempt to address substandard
conduct. CPT Johnson will testify that SF Adkins objected to any changes and
would not allow anyone to address the issues surrounding PFC Manning. As such,
CPT Johnson will testify that nothing was done to address PFC Manning?s mental and
emotional issues.

29) CPT Barclay D. Keay, HHC, 4-31 Infantry Battalion, 2nd Brigade Combat Team,
10th Mountain Division. Building 10210 North Riva Ridge, Fort Drum, New York

13682. (former night shift for the T-

for 2nd BCT). CPT Keay will testify that he believed PFC Manning was good

I4

32114

at his job and he was also impressed with PFC Manning?s computer skills. Despite
this belief. CPT Keay will testify that PFC Manning should not have been a soldier as
he seemed to act immature. CPT Keay will testify that you could not demand things
from PFC Manning as he had a soft skin and was not receptive to commands. CPT
Keay will testify that there was a lack of leadership on the night shift which PFC
Manning worked on. CPT Keay will testify that from his perspective PFC Manning
wanted to be a good soldier, but naturally was not good at the basic soldier skills.

30) Michael E. Worsley, 1335'? Medical Detachment (csc). 13137 E. 23'? Ave,
Aurora, Colorado 80045, CPT
Worsley will testify that he treated PFC Manning on numerous between 30 December
2009 and 26 May 2010. As part of his treatment. CPT Worsley will testify that he
considered letters written by PFC Manning?s noncommissioned officer in charge, then
MSG Adkins. CPT Worsley will testify that SFC Adkins expressed concern about
PFC Manning?s mental and emotional stability in the three letters noting that PFC
Manning appeared to be suffering greatly and also having difficulty sharing his
problem. PT Worsley will testify that he contacted SF Adkins after each
evaluation was completed in order to give him a summary of the information from his
review and to allow SF Adkins to share his thought and concerns. Despite the
behavior of PFC Manning, CPT Worsley will testify that he never made a
recommendation to the command concerning whether to suspend PFC Manning?s
security clearance. CPT Worsley will testify that he did, however, speak with MAJ
Clausen and Eric Usbeck about his reviews and PFC Manning?s need for
ongoing long term to explore and understand his issues.

31) CPT Elizabeth A. Fields, USA ROTC Battalion, Illinois State University, Nonnal,
61761, as the Special
Security Representative (SSR) for the and part of the Sunni Team. CPT
Fields will testify that she only received one hour of training at 10th MTN to be the
SSR for the T-SCIF. PT Fields will testify that her training covered the basic rules
and regulations for a SCIF at Fort Drum. CPT Fields will testify that her training did
not really cover ensuring the security of a T-SCIF. However. she will testify that she
was only the SSR at Fort Drum. When her unit deployed to Iraq. PT Fields will
testify that then MSG Adkins was the one that worked the security of the T-SCIF and
she dealt with security clearances. CPT Fields will testify that SFC Adkins did not
receive any training to be the SSR. CPT Fields will testify that SFC Adkins just
assumed the position under the approval of the S-2, MAJ Clausen. CPT Fields will
testify that she believed SF Adkins provided terrible supervisory leadership. She
thought he was a terrible leader because the problems within the unit were constantly
being ignored. CPT Fields will testify that it was obvious to everyone that PFC
Manning was struggling with mental and emotional issues. CPT Fields will testify
that when she tried to deal with the issue and get PFC Manning help, she was told that
it was an NCO problem and to stay out of it by SFC Adkins. CPT Fields will testify
that she did not believe that MAJ Clausen had any type of management over the
section. CPT Fields will also testify that she did not believe that the Company ISG

I5

32115 i

cared about the S2 section because they were not co-located. CPT Fields will testify

that she was aware of multiple issues with PFC Manning, but stated that PFC
Manning stayed in the T-SCIF because SFC Adkins said that the unit needed
personnel. CPT Fields will testify that she believed that there was a lack of leadership
across the board. CPT Fields will testify that as leaders they should have pushed
harder from the NCOs to the Officers. PT Fields will testify that she was puzzled
why PFC Manning was not removed from the T-SCIF after previous incidents that
occurred between him and SPC Padgett in December of 2009. CPT Fields will testify
that it was simply accepted that people brought in CDs and DVDs into the T-SCIF.
CPT Fields believed that there was no unit training at 2/10 that focused on T-SCIF
operations during the deployment.

32) Tanya Marie Gaab. HHC. 525"? Fort Bragg. North Carolina (-

. 1LT Gaab will testify that SFC Adkins was in charge
of the administrative details and supervision of the soldiers within the S2 Section.
1LT Gaab will testify that she was made aware of many of the issues surrounding
PFC Manning when she arrived to the unit. 1LT Gaab will testify that PFC Manning
should have been removed from his position in the T-SCIF early on in the
deployment. 1LT Gaab will testify that she felt that the leadership within the S2
section was not really concerned with disciplining soldiers. 1LT Gaab will testify that
she asked SFC Adkins why PFC Manning was not removed from his position in the
T-SCIF earlier, and that he told her that it was a manpower issue. ILT Gaab will
testify that she believes that PFC M-anning?s issues were not taken seriously and no
one took any steps to help him or even recognize that he needed help. 1LT Gaab will
testify that she believes the unit failed to take proper action and failed to properly
respond to the issues that PFC Manning was obviously struggling with both before
and during the deployment.

33) CW2 Joshua D. Ehresman, HSC, HHBN 2d ID, Camp Red Cloud, Korea APO AP
962s8~m. Ehresman win
testify that he was told by SFC Adkins and MAJ Clausen that he was not responsible
for any personnel who worked in the S2 section. W2 Ehresman will testify that on
several occasions he returned to SF Adkins and MAJ Clausen to clarify their
expectations about his responsibilities regarding enlisted soldiers and officers and his
non-role in soldier leadership was reinforced on each occasion. CW2 Ehresman will
testify that he was aware of multiple emotional outbursts by PFC Manning. CW2
Ehresman will testify that prior to the deployment he recommended that PFC
Manning should not deploy and expressed this directly to MAJ Clausen. CPT Martin
and SFC Adkins. CW2 Ehresman will testify that he was told that PFC Manning
would deploy due to manpower issues. CW2 Ehresman will testify that he witnessed
an incident in December of 2009 by PFC Manning that required him to physically
involve himself in the situation in order to ensure PFC Manning did not try to harm
himself or others. After this emotional outburst. CW2 Ehresman will testify that he
spoke to SFC Adkins and recommended that he take the bolt from PFC Manning?s
weapon, send him to mental health and then get him out of the Army. CW2

Ehresman will testify that he also spoke with CPT l.im. CPT Martin and ISG Eric

Usbeck about his concems after the outburst by PFC Manning. CW2 Ehresman will

testify that even after expressing these concerns, nothing was done.

34) W01 Kyle J. Balonek. G2, 10"? Mountain Division. Fort Drum, New York

32116

136o2. . W01 Balonek will testify that he

felt PFC Manning was very good at pulling data from various systems and using
various computer programs to produce products from the data. W01 Balonek will
testify that he went to SFC Adkins about Pl? Manning's behavior prior to the
deployment, but Adkins told him not to won'y about it. W01 Balonek will

testify that SFC Adkins would keep things from him sometimes regarding the welfare

and supervision of soldiers. W01 Balonek will testify that he believed that SFC

Adkins would pull things to his level and prevent him or others from having any input

on how to handle enlisted soldier issues. W01 Balonek will testify that he believed
that this was odd and he talked to SFC Adkins on a couple of occasions about the
poor chain of command and leadership. but that he was always told by Adkins
that it was not his concern.

35) SFC Paul l)avid Adkins. HHC, BCT. Fort Drum. New York 13602. ns--
Adkins will testify that he was PFC
Manning?s NCOIC. Once a MSG. SF-C Adkins will testify that he was
administratively reduced by a board due to being derelict in his duties in taking
corrective action with PFC Manning both prior to and during the deployment. SFC

Adkins will testify that the reduction board concluded that SFC Adkins failed to take

proper steps in addressing Manning?s issues. SFC Adkins will testify that he
was aware of the problems of PFC Manning. SFC Adkins will testify that over the

course of several months, he drafted three memorandums detailing various behavioral

health concerns of PFC Manning. Despite this knowledge. SFC Adkins will testify
that he failed to notify anyone in his chain of command of these concerns over PFC
Manning. Instead. SFC Adkins will testify that he simply allowed PFC Manning to
continue to work in the T-SCIF as an intelligence analyst. Adkins will testify
that he assessed that PFC Manning was salvageable if he received and actively
participated in extensive therapy (1-2 times a week on an inde?nite
basis) coupled with responsive evaluations, medication and follow-up
adjustments on dosages.

36)



Q)


32117

38) Chad .\/ladaras. HHC. 2-l4 IN. l0th l)lV. Fort Drum, New York.

13602. SGT Madaras will testify that
while in Iraq, he worked as an analyst on the day shift and Manning worked as
an analyst on the night shift. Madaras will testify that the day shift had
supervision. SGT .\/ladaras will testify that the night shift did not have NCO
supervision. SGT .\/ladaras will testify that SFC Adkins allowed F.-4s to be in charge
of the night shift. Madaras will testify that during the deployment he witnessed
several emotional outbursts by PFC Manning. SGT Madaras will testify that despite
PFC emotional outbursts. that his Adkins, did not counsel
him for disrespect. did not initiated action, and did not remove PFC Manning
from the due to his actions. SGT Madaras will testify that PFC Manning did
not seem to have any friends in the unit. Tvladaras will testify that PFC .\/tanning
seemed to be an outcast in his unit.

32118

39) SGT Daniel W. Padgett, Army Counter Intel. l055 Sheridan Drive. Building 428,
Fort Leavenworth, Kansas 66027. (em
former supervisor of PFC Manning. SGT Padgett will testify that during the
deployment he was a Specialist. SGT Padgett will testify that PFC Manning was a
very good analyst. who was good with computers but timid and not good at public
speaking. SGT Padgett will testify that he was assigned as the night shift NCOIC
with then SPC Manning and SPC Cooley. SGT Padgett will testify that he was
assigned this position even though he had not yet been to any leadership schools.
SGT Padgett will testify that there really was not anyone supervising the night shift.
SGT Padgett will also testify that when he needed to counsel PFC Manning he went
to SSG Balonek and asked him if he could counsel him. SGT Padgett will testify that
he was given permission to handle disciplinary actions for PFC Manning by SFC
Adkins and SSG Balonek. SGT Padgett will testify that he believed that he was in
essence taking care of other NCOS soldiers and that PFC Manning should have been
counseled by SSG Balonek. SGT Padgett will testify that during one counseling
session in December of 2009, PFC Manning grabbed the table and ?ipped it. SGT
Padgett will testify that PFC Manning did not approach him, but he was concerned
when PFC Manning stepped towards the weapons rack. SGT Padgett will testify that
when PFC Manning stepped towards the weapons rack. CW2 Ehresman grabbed PFC
Manning from behind and held him until he calmed down. SGT Padgett will testify
that although PFC Manning later apologized to him. that he believes PFC Manning
should have been removed from the T-SCIF after the incident.

40) SGT Lorena Cooley. HHC. 210 BSB,
. SGT Cooley will testify that she believes that PFC
Manning was picked on by others because they assumed that he was gay. SGT
Cooley will testify that SFC Adkins minimized a lot of things with PFC Manning by
not taking any corrective action when PFC Manning had his emotional outbursts.
SGT Cooley will testify that SFC Adkins tried to keep things within the shop instead
of informing the company commander of any issues with PFC Manning. SGT Cooley
will testify that PFC Manning should have probably gotten help before they deployed
and that he should have been removed from the T-SCIF.

Sheri M. Walsh. -
SGT Walsh will testify that PFC Manning had

conversations with her about relationship issues and the fact he was having gender
identity issues. SGT Walsh will testify that PFC Manning spoke to her often about
wanting to get an Honorable Discharge so that he could keep his Top Secret
Clearance after his release from the Army. SGT Walsh will testify that she noticed
that very few people would talk to PFC Manning. SGT Walsh will testify that every
time that she saw PFC Manning, he was by himself. SGT Walsh will testify that
others would make fun of PFC Manning?s size and make fun of him. SGT Walsh will
testify that others also assumed that he was gay and made fun of him. SGT Walsh
will testify that she saw two soldiers push a door back into PFC Manning?s face when

19



32119

PFC Manning was coming out of his room. SGT Walsh will testify that PFC
Manning was obviously upset and embarrassed about having the door pushed back
into his face. SGT Walsh will testify that instead of complaining about the conduct,
PFC Manning simply said that he walked into the door by accident. SGT Walsh will
testify that she believes PFC Manning was at a very confusing time in his life. SGT
Walsh does not believe that the Army was a good ?t for him based upon where he
was at in his life.

42) Ambassador

2. Ambassador Galbraith will testify that he is not a supporter of PFC Manning.
He will also testify that he does not support PFC Manning?s alleged conduct. He will
testify that the release of the SIPDIS cables caused embarrassment to the Government
and signi?cant ?nancial damage to the United States due to either having to remove
an ambassador from a speci?c country or by having to address the release of the
SIPDIS cables with affected countries. Ambassador Galbraith will testify that, while
SIPDIS cables were among the least sensitive of the govemment?s documents, the
cumulative effect of the release of so many cables could have harmed the national
security interest of the United States. Ambassador Galbraith will testify that even
though he does not support the release of the SIPDIS cables, he also does not believe
that the SIPDIS cables contained our country?s closely held secrets. Instead, he will
testify that these types of cables were available to anyone with SIPRNET access a
potential audience of over a million people. Ambassador Galbraith will testify that
cables included in the SIPRNET system were written for a relatively wide
distribution, and thus were included into a database available to anyone with
SIPRNET access. Ambassador Galbraith will testify that no prudent diplomat would
include genuinely sensitive material in a cable with such a broad distribution.
Ambassador Galbraith will testify that most of the cables that were intended for
SIPDIS often reported on widely known issues and events and many dealt with
routine administrative matters. While a cable in the SIPERNET system appears to be
signed by an Ambassador and addressed to the Secretary of State, the cables were
rarely drafted by an Ambassador, usually not cleared by an Ambassador if they dealt
with routine administrative matters, and almost never read by the Secretary of State.
As such, Ambassador Galbraith will testify that much of what would be in a SIPDIS
cable could also be found in the newspapers of the relevant country or in other open
source reporting. Ambassador Galbraith will testify that ambassadors use more
restrictive channels (such as NODIS. EXDIS. LIMDIS, and intelligence channels) for
discussion of sensitive material. Ambassador Galbraith will testify that no
responsible ambassador would use a channel with such broad distribution for
matters??be it intelligence, military, or policy recommendations?where the leak of
the information could seriously damage the interests of the United States.
Ambassador Galbraith will also testify that it would be irresponsible to cite speci?c
interlocutors in a SIPDIS where the person could be harmed by the leak of her or his
name, although he understands such infonnation may have unwisely or negligently
been included in cables sent in the SPIDIS channel. Ambassador Galbraith will
testify that although he has not reviewed all of the released SIPDIS cables, diplomats

20



32120

working for him when he was an Ambassador wrote some of the cables now released
and that he edited and cleared cables dealing with substantive matters. While the
SIPDIS distribution did not exist when Galbraith was Ambassador to Croatia,
Ambassador Galbraith will testify that he authorized the sending of cables with broad
distribution only when he judged there was a bene?t to a larger audience having
access to the information and when the consequences ofa leak were not serious.
Ambassador Galbraith will testify that he was?and is?very concerned about the
propensity of some in the U.S. Government to leak classi?ed infonnation. While he
was Ambassador, someone on Capitol Hill leaked a report containing sensitive
intelligence that compromised an ongoing intelligence operation in Croatia and put at
risk embassy personnel. Ambassador Galbraith pushed hard for the investigation and
punishment of those responsible. While Ambassador Galbraith will testify that he
strongly disapproves of what PFC Manning allegedly did, he will also testify that
there is no comparison in the sensitivity and importance of the material allegedly
released by PFC Manning and real intelligence leaks where there has often been no
investigation or only limited punishment. Ambassador Galbraith will testify that, in
his experience, many?if not most?state department cables are over classi?ed and
that a secret classi?cation does not mean the information is genuinely secret.
Ambassador Galbraith will testify that, in his opinion, it would be irresponsible to use
the SIPDIS distribution for cables that contained genuinely secret infonnation and
that he believes many of the cables classi?ed secret in the SIPRNET system should
not have been.

43) Ms. ihrleah W. Showman Ms.
Showman will testify about being aware of PFC Manning?s emotional issues. Ms.
Showman will testify that she went to SFC Adkins and recommended that PFC
Manning not deploy due to his emotional issues. Ms. Showman will testify that when
she was PFC Manning direct supervisor she witnessed multiple instances both before
and during the deployment that indicated to her that PFC Manning was struggling
both emotionally and mentally.

44) Ms. Lillian Smith. US Army HQDA, ITA

. Ms. Smith will testify as an expert for the defense in

information assurance practices. Ms. Smith will testify that based upon the Secretary
of Army?s 15-6 investigation and her review of the CID ?le. PFC Manning?s unit
failed to follow even the most basic information assurance requirements. Ms. Smith
will testify that the unit failed to take required action to DEROG PFC Manning after
he ?rst exhibited emotional problems. Ms. Smith will testify that the unit similarly
failed to take required action after PFC Manning?s subsequent emotional outbursts,
odd behavior. and admitted gender identity disorder. Ms. Smith will testify that had
the unit followed established information assurance practices, PFC Manning would
not have been in the position to have compromised the charged information.

45) COL Dick Larry. HQDA, 400 Anny Pentagon. Washington D.C., 20310,
. COL Larry will be called only to rebut any

2|



32121

argument by the Government that the charged SIGACTS revealed to the enemy our
counter- Improvised Explosive Device Defeat (IEDD) training. tactics. and
procedures (TTPs). COL Larry will testify that his office is the Army representative
to the Joint Intelligence Explosive Ordnance Disposal (EOD) Organization. COL
Larry will testify that his organization has the following sub-tasks: (I) publish and
maintain the Army CID OPSEC manual, (2) sustain funding for theater operations,
(3) manage Army EOD, (4) Army staff lead for weapons technical knowledge, and (5)
represent the Army at the Warfighter Senior Integration Group. COL Larry will
testify that his organization uses intelligence information gathered from Army G2,
DIA, unit operation/intelligence summaries, and any intelligence gathered by
Provincial Reconstruction Teams. COL Larry will testify that intelligence gleaned
from the charged SIGACTS would be limited by two general problems (I) there is
limited infonnation in a SIGACT (could be just a picture with the 5 Ws (who, what,
where, when, and why) and (2) the infonnation contained in the report may well be
inaccurate. COL Larry will testify that other factors weigh heavily in the enemy?s
ability to be successful with IEDS. COL Larry will testify those factors include the
availability of material, the ability to communicate from bomb-makers down to the
bomb?emplacers, the IED countermeasures used locally by BLUEFOR, and the
consequent measures used by the IED to defeat the countermeasures. COL Lany will
testify the threat does not have the administrative concerns that we do. COL Larry
will testify that the enemy can immediately make changes based on the operational
environment. COL Larry will testify that the threat is constantly adapting. COL Lany
will testify that BLUEFOR has to think three moves ahead, and has to constantly
examine how the actions on the ground impact our response. As such, COL Larry will
testify that what may have been true two years, two months, or even two weeks ago
may not be true today. COL Larry will testify that he does not view the charged
SIGACTS as providing sensitive counter IED measures to the enemy.

46) Debra Van Ms. Van is PFC
Manning?s aunt. Ms. Van will testify about PFC Manning?s childhood and
the difficulty that he experienced du.e to his parent?s substance abuse problems. Ms.
Van will testify about how PFC Marming came to live with her shortly before
hejoined the Anny. Ms. Van will testify about how proud PFC Manning was
to join the Army and how important that he felt his job was to his country. Finally,
Ms. Van will testify about PFC Manning?s rehabilitative potential in society.



32122

2. The Defense reserves the right to supplement this witness list with additional
witnesses. Any supplemental witness list will be ?led in a timely manner and based upon
either a ?ling by the Government of additional witnesses or the discovery of additional
information relevant to either merits or sentencing.

Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

32123

UNITED STATESOF AMERICA
Prosecution Disclosure of
RCM 914 Material
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

15 October 2012

On 22 June 2012, the United States submitted its initial Witness List in the above
referenced court martial.
Appellate Exhibit (AE)CLXII. The current Case Calendar
requires the prosecution to disclose any material discoverable under Rule lor Courts-Martial
(RCM)9I4by 150ctobcr 2012^^^ RCM 914 On3August20I2andinresponscto the
Court^semail dated 26 July 2012, the United States notified the delense of what types of
statements the prosecution intended to disclose to the delenseundcrRCM9I4. ^^^AECCLXX.
The defense did not object.
Onl50ctober 2012, the United States disclosed to the delensc or made available lor
inspection all material discoverable underRCM9I41or those government witnesses identified in
Appellate Exhibit CLXII. ^^^Enclosurcsl-2. The United States ac1:nowledges its ongoing
obligation to disclose additional inlormation that it discovers.

J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel
2 Enclosures
1. Classified RCM 914 Material (classified "SECRET") [not attached]
2. Unclassified RCM 914 Material ("FOUO") [not attached]
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 15 October 2012.

J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel

PAGE

OF_____ PAGES'

Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

UNITED STATES OF AMERICA


V. Prosecution Disclosure of

Giglio Material

Manning, Bradley E.

PF C, U.S. Army,

HHC, U.S. Army Garrison, 15 October 2012



On 22 June 2012, the United States submitted its initial Witness List in the above
referenced court?martial. See Appellate Exhibit (AE) CLXII. On I4 August 2012 and 4
September 2012, the United States submitted its Witness Lists regarding Article 13, Uniform
Code of Military Justice (UCMJ). See Appellate Exhibit Beginning in July 2012,
the United States began requesting any impeachment materials for witnesses not being offered
purely for authentication purposes. The United States requested that the departments, agencies,
organizations, and military commands, to which the government witnesses are employed or
assigned, conduct a thorough and comprehensive search of their own records for impeachment
material and disclose any responsive records. See enclosed sample Giglio request; see also
Giglio v. United States, 405 U.S. 150 (1972).

As of 15 October 2012, the United States has reviewed its own ?les and records received
in response to its requests. ln addition to prior disclosures, the United States discloses the
following and makes available for inspection all discoverable material:

1. CDR Youssef Aboul-Enein. The prosecution did not ?nd any such material relating to this
witness.

2. SFC Paul Adkins. In addition to disclosure(s) already provided, any material relating to this
witness is available for inspection with the prosecution.

3. - The prosecution will coordinate with the particular department, agency,
organization, or military command for any impeachment material. Should any impeachment
material be found, the prosecution immediately will make such material available for inspection.

4. The prosecution will coordinate with the particular department, agency,
organization, or military command for any impeachment material. Should any impeachment
material be found, the prosecution immediately will make such material available for inspection.

5. SPC Mag Amiatu. The prosecution will coordinate with the particular department, agency,
organization, or military command for any impeachment material. Should any impeachment
material be found, the prosecution immediately will make such material available for inspection.

6. SPC Kga Amos. The prosecution will coordinate with the particular department, agency,
organization, or military command for any impeachment material. Should any impeachment
material be found, the prosecution immediately will make such material available for inspection. 9

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7. . Any material relating to this witness is available for inspection with the
prosecution.

8. Mr. Peter Artale. Any material relating to this witness is available for inspection with the
prosecution.

9. SPC Eric Baker. The prosecution did not ?nd any such material relating to this witness.

l0. The prosecution did not ?nd any such material relating to this
witness.

l. WOI Kyle Balonek. The prosecution did not ?nd any such material relating to this witness.

12. The prosecution did not ?nd any such material relating to this
witness.

13. Mr. Joseph Benthal. The prosecution will coordinate with the particular department, agency,
organization, or military command for any impeachment material. Should any impeachment
material be found, the prosecution immediately Will make such material available for inspection.

14. SA Troy Bettencourt. The prosecution did not ?nd any such material relating to this
witness.

15. SSG Peter Bigelow. Any material relating to this witness is available for inspection with the
prosecution.

16. Mr. Wyatt Bora. The prosecution did not ?nd any such material relating to this witness.
l7. The prosecution did not ?nd any such material relating to this witness.
I8. Mr. Steve Buchanan. The prosecution did not ?nd any such material relating to this witness.

19. BG (Ret.) Robert Carr. The prosecution did not ?nd any such material relating to this
witness.

20. Mr. Sean Chamberlin. The prosecution did not ?nd any such material relating to this
witness.

21. CPT Thomas Cherepko. The prosecution did not ?nd any such material relating to this
witness.

22. SA Charles Clapper. The prosecution did not ?nd any such material relating to this witness.

23. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any
impeachment material be found, the prosecution immediately will make such material available
for inspection.

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32126

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24. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any
impeachment material be found, the prosecution immediately will make such material available
for inspection.

25. SGT Lorena Cooley. The prosecution did not ?nd any such material relating to this witness.

26. Ms. Elizabeth Dibble. The prosecution did not ?nd any such material relating to this
witness.

27. Mr. Vann Van Diepen. The prosecution did not ?nd any such material relating to this
witness.

28. Mr. Jim Downey. The prosecution will coordinate with the particular department, agency,
organization, or military command for any impeachment material. Should any impeachment
material be found, the prosecution immediately will make such material available for inspection.

29. The prosecution did not ?nd any such material relating to this witness.

30. SA Antonio Edwards. The prosecution did not ?nd any such material relating to this
witness.

3 I. SA Kirk Ellis. The prosecution did not ?nd any such material relating to this witness.
32. Mr. John eeley. The prosecution did not ?nd any such material relating to this witness.

33. The prosecution will coordinate with the particular department, agency,
organization, or military command for any impeachment material. Should any impeachment
material be found, the prosecution immediately will make such material available for inspection.

34. CPT Matthew Freeburg. Any material relating to this witness is available for inspection
with the prosecution.

35. CPT Casey Fulton. The prosecution did not ?nd any such material relating to this witness.
36. Mr. James Fung. The prosecution did not ?nd any such material relating to this witness.
37. Ms. Shelia Glenn. The prosecution did not ?nd any such material relating to this witness.
38. The prosecution did not ?nd any such material relating to this witness.
39. SA Toni Graham. The prosecution did not ?nd any such material relating to this witness.
40. Mr. Jacob Grant. The prosecution did not ?nd any such material relating to this witness.
4l. The prosecution did not ?nd any such material relating to this witness.

42. VADM Robert Harward. The prosecution did not ?nd any such material relating to this
witness.

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32127

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43. Mr. Patrick Hoeffel. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any

impeachment material be found, the prosecution immediately will make such material available
for inspection.

44. Mr. Matthew Hosburgh. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any
impeachment material be found, the prosecution immediately will make such material available
for inspection.

45. LT (US Navy) Thomas Hoskins. The prosecution did not ?nd any such material relating to
this witness.

46. The prosecution will coordinate with the particular department, agency,
organization, or military command for any impeachment material. Should any impeachment
material be found, the prosecution immediately will make such material available for inspection.

47. The prosecution did not ?nd any such material relating to this witness.
48. The prosecution will coordinate with the particular department, agency,
organization, or military command for any impeachment material. Should any impeachment

material be found, the prosecution immediately will make such material available for inspection.

49. Ms. Elisa K. (Rubin) Ivory. The prosecution did not ?nd any such material relating to this
witness.

50. Mr. Albert J. anek. The prosecution did not ?nd any such material relating to this witness.
Mr. Glen Johnson. The prosecution did not ?nd any such material relating to this witness.
52. SA Mark Johnson. The prosecution did not ?nd any such material relating to this witness.

53. AMB Patrick F. Kennedy. The prosecution did not ?nd any such material relating to this
witness.

54. The prosecution did not ?nd any such material relating to this witness.

55. Mr. John Kirchoffer. The prosecution did not ?nd any such material relating to this witness.

56. AMB Michael Kozak. The prosecution did not ?nd any such material relating to this
witness.

57. Mr. Adrian Lamo. In addition to discIosure(s) already provided, any material relating to this
witness is available for inspection with the prosecution.

58. CW5 Jon Larue. The prosecution did not ?nd any such material relating to this witness.

59. Mr. Danny J. Lewis. The prosecution did not ?nd any such material relating to this witness.

4
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32128

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60. CPT Steven Lim. Any material relating to this witness is available for inspection with the
prosecution.

61. ?The prosecution did not ?nd any such material relating to this

witness.

62. SGT Chad Madaras. The prosecution did not ?nd any such material relating to this witness.

63. Mr. Brian Madrid. The prosecution will coordinate with the particular department, agency,
organization, or military command for any impeachment material. Should any impeachment
material be found, the prosecution immediately will make such material available for inspection.

64. Ms. Tamara Mairena. The prosecution did not ?nd any such material relating to this
witness.

65. SA Mark Mander. Any material relating to this witness is available for inspection with the
prosecution.

66. SGT Aleiandro Marin. The prosecution did not ?nd any such material relating to this
witness.

67. The prosecution did not ?nd any such material relating to this witness.
68. Mr. James McCarl. The prosecution did not ?nd any such material relating to this witness.

69. Mr. Vince McCarron. The prosecution did not ?nd any such material relating to this
witness.

70. The prosecution did not ?nd any such material relating to this witness.

71. Mr. James McManus. The prosecution did not ?nd any such material relating to this
witness.

72. COL David Miller. The prosecution did not ?nd any such material relating to this witness.

73. Mr. Jason Milliman. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any
impeachment material be found, the prosecution immediately will make such material available
for inspection.

74. Mr. James Moore. The prosecution did not ?nd any such material relating to this witness.
75. Mr. Ken Moser. The prosecution did not ?nd any such material relating to this witness.
76. Mr. Jeffery Motes. The prosecution did not ?nd any such material relating to this witness.
77. Mr. Troy Moul. The prosecution did not ?nd any such material relating to this witness.

78. Mr. Kin Moy. The prosecution did not ?nd any such material relating to this witness.

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32129

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79. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any

impeachment material be found, the prosecution immediately will make such material available
for inspection.

80. Mr. Nicholas Murphy. Any material relating to this witness is available for inspection with
the prosecution.

81. Lt Col (R) Martin Nehring. The prosecution did not ?nd any such material relating to this
witness.

82. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any
impeachment material be found, the prosecution immediately will make such material available
for inspection.

83. SGT Daniel Padgett. The prosecution did not find any such material relating to this witness.
84. AMB David Pearce. The prosecution did not ?nd any such material relating to this witness.

85. Mr. H. Dean Pittman. The prosecution did not find any such material relating to this
witness.

86. Lt Col Robert Pope. The prosecution did not find any such material relating to this witness.
87. The prosecution did not find any such material relating to this witness.

88. SA Calder Robertson. The prosecution did not find any such material relating to this
witness.

89. LTC Rodney Roberts. The prosecution did not find any such material relating to this
witness.

90. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any

impeachment material be found, the prosecution immediately will make such material available
for inspection.

91. SA Ronald Rock. The prosecution did not find any such material relating to this witness.

92. CW4 Armond Rouillard. The prosecution did not find any such material relating to this
witness.

93. SGT David Sadtler. Any material relating to this witness is available for inspection with the
prosecution.

94. Mr. Doug Schasteen. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any

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32130

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impeachment material be found, the prosecution immediately will make such material available
for inspection.

95. Ms. Jacqueline Scott. The prosecution did not ?nd any such material relating to this
witness.

96. AMB Stephen Seche. The prosecution did not find any such material relating to this
witness.

97. SAC David Shaver. The prosecution did not find any such material relating to this witness.

98. Ms. Jihrleah Showman. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any
impeachment material be found, the prosecution immediately will make such material available
for inspection.

99. SA Thomas Smith. The prosecution did not ?nd any such material relating to this witness.

100. SA Mitchell Song. The prosecution will coordinate with the particular department, agency,
organization, or military command for any impeachment material. Should any impeachment
material be found, the prosecution immediately will make such material available for inspection.

l0l. Any material relating to this witness is available for inspection with the
prosecution.

102. 1 The prosecution did not ?nd any such material relating to this
witness.

I03. The prosecution did not ?nd any such material relating to this witness.

104. Ms. Strobl. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any
impeachment material be found, the prosecution immediately will make such material available
for inspection.

I05. Ms. Susan Swart. The prosecution did not ?nd any such material relating to this witness.
106. Ms. Tasha Thian. The prosecution did not ?nd any such material relating to this witness.

107. SSG Robert Thomas, Ill. The prosecution did not ?nd any such material relating to this
witness.

108. Mr. Louis Travieso. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any
impeachment material be found, the prosecution immediately will make such material available
for inspection.

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32131

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I09. The prosecution did not ?nd any such material relating to this
witness.

I 10. Ms. Shari Villarosa. The prosecution did not ?nd any such material relating to this
witness.

1 1 1. Any material relating to this witness is available for inspection with
the prosecution.

I I2. Mr. Greg Weaver. The prosecution did not ?nd any such material relating to this witness.

13. Ms. Florinda White. The prosecution will coordinate with the particular department,
agency, organization, or military command for any impeachment material. Should any
impeachment material be found, the prosecution immediately will make such material available
for inspection.

1 14. SA John Wilbur. The prosecution did not find any such material relating to this witness.

ll5. SA Alfred Williamson. The prosecution did not ?nd any such material relating to this
witness.

I 16. Mr. Charlie Wisecarver. The prosecution did not ?nd any such material relating to this
witness.

1 17. Mr. Alex Withers. The prosecution did not ?nd any such material relating to this witness.

118. RDML David Woods. The prosecution did not ?nd any such material relating to this
witness.

19. AMB Don Yamamoto. The prosecution did not ?nd any such material relating to this
witness.

120. SA Garon Young. Any material relating to this witness is available for inspection with the
prosecution.

12]. Mr. Joseph Yun. The prosecution did not ?nd any such material relating to this witness.

Article 13 Witnesses:

122. CWO4 James Averhart. Any material relating to this witness is available for inspection
with the prosecution.

123. CWO2 Denise Barnes. The prosecution did not ?nd any such material relating to this-
witness.

124. Craig Blenis. The prosecution did not ?nd any such material relating to this witness.

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32132

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125. CPT Joseph Casamatta. The prosecution did not ?nd any such material relating to this
witness.

126. Col (R) Daniel Choike. The prosecution did not ?nd any such material relating to this
witness.

127. Jonathan Cline. The prosecution did not ?nd any such material relating to this
witness.

128. COL Carl Coffman. The prosecution did not ?nd any such material relating to this witness.

129. William Fuller. The prosecution did not ?nd any such material relating to this
witness.

130. CWO5 Abel Galaviz. The prosecution did not ?nd any such material relating to this
witness.

131. SSG Ryan Jordan. The prosecution did not ?nd any such material relating to this witness.

132. Brian Papakie. The prosecution did not ?nd any such material relating to this
witness.

133. CAPT (R) Jonathan Richardson. The prosecution did not ?nd any such material relating to
this witness.

134. LTC Robert Russell. The prosecution did not ?nd any such material relating to this
witness.

135. Mr. Joshua Tankersly. The prosecution did not ?nd any such material relating to this
witness.

136. GMI Terrance Webb. The prosecution did not ?nd any such material relating to this
witness.

137. LCDR Eve Weber. The prosecution did not ?nd any such material relating to this witness.

138. 1SG Bruce Williams. The prosecution did not ?nd any such material relating to this
witness.

139. Mai Timothy Zelek. Any material relating to this witness is available for inspection with
the prosecution.

The United States acknowledges its continuing obligation to make available additional
impeachment information if it is discovered.

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32133

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The United States will request impeachment material for its Article 10 witnesses and
make any responsive material available for inspection.

J. HCIETER WHYTE

CPT, A
Assistant Trial Counsel

Enclosure

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 15 October 2012.

J. Hg: ER WHYTE

CPT, A
Assistant Trial Counsel

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32134

Appellate Exhibit 347
1 page
classified
"SECRET"
ordered sealed for Reason 2
and Reason 7 (government)
Military Judge's Seal Order
dated 20 August 2013
Stored in the classified
supplement to the original
Record of Trial

32135

Appellate Exhibit 34^
Ipage
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20 August 2013
stored in the classified
supplement to the original
Record ofTrial

32136

UNITEDSTATESOF AMERICA
V.

NOTICE AND DISCLOSURE
TO DEFENSE

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

17 October 2012

Pursuant to the Court's order during an ex parte session on 12 October 2012, the United
States discloses the following information from the Federal Bureau of Investigation investigative
file. The information is contained in a document dated 11/4/2010 [5:00 P.M.].
"(U//LES) WFO, CD-4A, Army CID, EDVA, and CES met with representatives from the Office
of the National Counterintelligence Executive (NCIX), Director of National Intelligence (DNI),
to coordinate activities. NCIX leadership provided a briefing re NCIX's role in the wake of the
leak of classified information by WikiLeaks, as well as its role with respect to the potential leak
of additional classified information in the fiiture. NCIX is aware and sensitive to discovery
issues and advised that the NCIX will not generate any type of official evaluation or damage
assessment until after the completion of any potential criminal prosecutions."
The United States will produce this information in discovery at a later date.

JoR^6^r^
:PT,

JA

Assistant Trial Counsel

I certify that I served or caused to be served a true copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, on 17 October 2012.

lAN MORROW
JA
Assistant Trial Counsel

APPELLATE EXHIBIT 3 ^ 7
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32137

UNITEDSTATESOF AMERICA
Prosecution Disclosure
to the Defense
Manning,BradleyE.
PFCU.S.Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
FortMyer,Virginia 22211

SpeedyTrial Chronology
16October2012

Pursuant to Rulc3.2,Rul^sofPracticebclore Army Courts-Martial 2012,th^ prosecution
discloses the below chronology ofdatcs and events for the above-captioncd court-martial. On 26
September 2012,the prosecution submittedamore detailed chronology to the defense which
accounted for the below events, in addition to the actions of the prosecution in bringing the
accused to trial. On 27 September 2012, the defense objected to the detailed chronology lor lack
of specificity. The chronology is an abbreviated chronology ofonly those dates lor ma^or events
for which the delcnsc has actual knowledge existed to lacilitatcastipulatcd chronology.
Stipulate
(V/N)

Date
18-Feb-lO
15-Mar-lO
5-Apr-lO
25-May-IO
27-May-lO
29-May-IO
30-May-lO
31-May-lO
5JullO
6JullO
llJullO
11-Jul-lO
12-Jul-lO

12-Jul-lO
13-Jul-lO
23-Jul-lO

Event
WikiLeaks released purported classified Department ofStatc cable that
is the subject ofSpccificationl4ofChargc 11
WikiLeaks released purported classified document that is the subject of
Spccificationl5ofChargell
WikiLeaks released purported video that is the subject ofSpecification
2ofChargc11
Adrian Lamo reported to the United States Goyemment that the
accused admitted disclosing classified documents toWikiLeaks
Accused confined in CHU with armed guard
Accused ordered into pretrial confinement
Military Magistrate approved pretrial confinement
Accused translcrredloThcater Field Confinement Facility in Kuwait
Original Charges preferred
SPCMCA appointcdLTC Craig Mcrutkaas the Article 32
Investigating Officer
Article 32 Investigating Officer denied delcnse'srcqucst for anRCM
706 board
Defense requeslRCM 706 board and delay of Article 32 investigation
Defense requested delay of Article 32 investigation untilRCM 706
board completed and until the accused could resolve issues relating to
civilian defense counsel and delense expert witnesses
SPCMCA granted defense request to delayArticle 32 investigation
Delense requested for appointment ofexpert in computer forensics
SPCMCA granted dclcnsc request lor expert in computer forensics
APPELLATEEXHIBIT^^
PAGEREFERENCED
^AGE
^OF
PAGES^

32138

25-Jul-lO
25-Jul-lO
28JullO
28-JullO
29-JulIO
2-Aug-lO
2-Aug-lO
3-Aug-lO
4-Aug-lO
5-Aug-lO

5-Aug-lO
9-Aug-IO
lO-Aug-10
10-Aug-lO
11-Aug-lO
12-Aug-lO
I2-Aug-10
18-Aug-lO
25-Aug-lO
25-Aug-lO
25-Aug-lO
26-Aug-lO
26-Aug-lO
26-Aug-lO
26-Aug-lO
3-S^p-IO
17-Sep-IO

Prosecution produced CID cas^ file
WikiLeaks released purported CIDNE Afghanistan database
GCMCA requested transfer ofjurisdiction to MDW
GCMCA signed Protective Order Governing Classified Information
Accused arrived at (quantico
GCMCAreleased jurisdiction to SPCMCA
SPCMCA ordered Article 32 investigation
SPCMCAordcrcdRCM 706 board
Appointment ofLTC Paul Almanza as the Article 32 Investigating
Officer
Defense cmailcdRCM 706 board that there is no need for members of
the board to havcasccurity clearance because thedefense will ensure
the accused does not divulge classified information
Defense requested opportunity to review both the long and short-form
ofthe RCM 706 board results
Communication between the parties regarding the RCM 706 board,
defense delay requests, and the protective order
Communication between the parties regarding the RCM 706 board and
defense delay requests
Email IromRCM 706 board notifying thcparties that the first
evaluation of accused is scheduled for 27August 2010
Defense requested delay ofArticlc 32 investigation until completion of
RCM706board
Article 32 Investigating Officer recommended that SPCMCA approve
th^dclense delay request lor completion ofRCM 706 board
SPCMCA approved defense request for delay of Article 32
investigation
2/lOMTN redeployed to FortDrum, NY
Defense requested delay ofRCM 706 board until forensic psychiatry
expert appointed to defense t^am
RCM 706 board notified the parties that it would b^gin assessment of
the accused on 27August 2010
SPCMCA approved del^nse request for delay ofArticlc 32
investigation
Defense nolifi^dRCM 706 board that the accused will need to divulge
classified information during evaluation
Def^ns^ requested appointment of security officer to RCM 706 board
Defense requested delay ofRCM 706 board until procedures adopted to
safeguard classified information
Defense requested results ofclassification reviews by Original
ClassificationAulhorities(OCAs)
D^f^nse requested security clearance for ^achd^fcns^ member, to
include experts
SPCMCA appointed defense security expert consultant and security

32139

I7-Scp-10
17-S^p-lO
18-Scp-lO
22-Scp-lO
28Sep-10
28-Sep-10
28-Sep-lO

120ctlO
12-Oct-lO
120ctIO
190ctlO
190ctlO
210ctlO
210ctlO
22Oct-10
27Oct-10
28 0ctlO
29Oct-10
29Oct-10
1-Noy-lO

10-Noy-lO
10-Noy-lO
10-Noy-lO
lI-Noy-10
15-Noy-lO

officerforRCM 706board
SPCMCA issued Protective Ord^r Governing Classified Information
SPCMCA ordered Preliminary Classification Review of Accused^s
Mental Impressions (PGR)
Defense objected to PCR
SPCMCA ordered SuperscdingPCR
Defense rcqucstedasecond security expert
Defense requested proper container to store classified information
Defense requested second defense security expert to assist PCR, for
PGR to take place in SCIF,andlorthe accused to be given access to
classified inlormation
SPCMCA appointed expert consultant in forensic psychiatry for
defense
SPCMCA appointed second defense security expert to assist with PGR
SPCMCA issued Accounting Memorandum for Period ofExcluded
Delay
Defense notified prosecution that the security experts b^li^ycdatwoweck time period was unrealistic to complete PGR verification process
Defense requested update on the PGR rehearsal
Defense requested several materials, includingaTS-SCI stand-alone
computer with removable hard drive, lor security experts
WikiLeaks released purported CIDNE Iraq database
Discovery ProductionBatcs^00000001 -00000429(429pagcs),
including Prcferral Packet [Unclassified]
Dclcns^ security experts inlervicwcd the accused for PGR
Delcnsc requested appointment ofcxpcrt in inlormation assurance to
thedefense team
Defense submitted discovery request
Defense submitted requests in response to PGR
Defense requested prosecution provide d^f^nsc security experts the
following material: (l)classification guide used to classify
compromised information; (2) the link to the video allegedly released
by the accused for defense security experts; and (3)any damage
assessments
Discovery ProductionBates^00000430-00000450 (21 pages),
including Initial Article 32 Packet [Unclassified]
SPCMCA issued Accounting Memorandum for Period ofExcluded
Delay
SPCMCA issued Supplemental Guidance on Expcrts'Acccss to
Classified Inlormation
Discovery ProductionBatcs^00000451 - 00000474 (24pagcs),
including Initial Article 32 Packet [Unclassified]
Defense submitted discovery request

32140

19-Noy-lO Discovery ProductionBates^00000475 -00000662 (188 pages),
including Initial Article 32 Packet [Unclassified]
28-Noy-lO WikiLeaks began releasing purported Department ofState cables tbat
are the subject ofSpccification 12 and 13 ofChargc II
29-Noy-lO Defense requested appointment ofinyestigator for defense
30-Noy-lO Defense requested that th^ accused wcarACUs during defense meeting
and inquired whether the accused can have hand and leg restraints
removed during the meeting
8DeclO Dclense requested coordination for the accuscd^smovement for
d^lcnsc meeting
8-Dec-lO Defense submitted discovery request
I3-DcclO PGR completed
17-D^c-lO SPCMCA denied defense request for appointment ofinvcsligator for
defense
17-Dcc-lO SPCMCA issued Accounting Memorandum for Period ofExclud^d
Delay
I8Dcc10 Defense requested the nam^softhose members on the RCM 706 board
21-Dec-lO Communication between the parties to discuss possible additional
charges, different forensic psychiatrists, disclosures under MRE 505(h),
and POI status
30-Dec-lO Defense submittcdMRE505(h)motionfor RCM 706 board
3-Janll
Discovery ProductionBates^00000663 -00000771 (109pagcs),
including Preliminary Inquiry [Unclassified]
D^fens^ submitted memorandum requesting change ofthe accused's
5-Jan-ll
classification and assignment
Prosecution responded to d^fcns^ notification under MRE 505(h)
5-Jan-lI
9-Jan-ll
Defense requested speedy trial
10-Jan-ll Defense submitted discovery request
I 2 J a n l l Defense requested CAPT Moore replace COL Benedck as forensic
psychiatrist for defense
13-Jan-ll Communication between the parties discussing defense request for
security clearances, defense expert requests, andRCM 305(g) request
13-Janll
14-Jan-ll
14-Jan-ll
14-Jan-11
14-Jan-ll
19Janll
19-Jan-ll
20-Jan-ll
20Jan-ll

Defense requested sp^^dy trial
Discovery ProductionBates^00000772-00000851 (80pages),
including 15-6 Investigation [Unclassified]
SPCMCA appointed expert in inlormation awareness lor d^l^nse
SPCMCA approved defense request for expert in forensic psychiatry
SPCMCA issuedAccounting Memorandum for Period ofExcludcd
Delay
Defense submitted Articlel38 complaint
D^f^ns^ submitted preservation request
Communication between the parties discussing confinement conditions
SPCMCA requested O^^^tico documents

32141

21-Jan-ll
21-Jan-ll
24-Jan-ll
28Janll
31-Jan-lI
3-Feb-ll
7-Fcb-ll

7-Feb-ll
9FebII
9-Feb-ll
14-Fcb-ll
15-Fcb-ll
15-Feb-ll
16-Feb-ll
17-Fcb-lI
18-Feb-ll
2I-Feb-ll
25-Fcb-lI
1-Mar-ll
1-Mar-ll
3-Mar-ll
5-Mar-ll
5-Mar-ll
7-Mar-ll

8-Mar-ll

Communication between the parties discussing MRE 505
SPCMCA denied defense RCM305(g) request
Delensc requested coordination lor transportation of accused lor
defense meeting
Defense requested whether O^^^tico had released th^ requested
documents to the prosecution
RCM 706 board granted proper security clearance
SPCMCA ordcredRCM706 to resume
Defense notified the RCM 706 board that the board should feel free to
take the tim^ necessary to conduclalhorough and complete
examination, and that any request for an extension oftimc by the board
would undoubtedly be granted
Defense requested thatRCM 706 board allow defense psychiatric
expert to observe RCM 706 proceeding
Discovery ProductionBatcs^00000852 -00001049(198 pages),
including Medical Records [Unclassified]
Discovery ProductionBatcs^00001050-00001051 (2 pages),
including Certificate ofService-toLib^rtyTDS [Unclassified]
Prosccutionrcspondcdtodcfcnse'sMRE 505(h)(1)rcquest
Defense replied to prosecution^sMRE 505 response
SPCMCA issued Accounting Memorandum for Period ofExcludcd
Delay
Delensc submitted discovery request
Defense submitted motion to compel discovery
Delcnsc requested for appointment ofn^uropsychologist for defense
Defense requested that the prosecution arrange foraSCIF to be
available lor the defense meeting
Prosecution submitted response to dcf^nse'smotion to compel
discovery to the Article 32 investigating officer
Additional charges preferred
Defense notified of additional charges
Defense requested to meet with the accused in SCIF prior to RCM 706
board interview
Defense requested coordination for transportation ofthe accused for
dclcnsc meeting
Prosecution notified delensc that SCIF is available any Saturday for the
defense to meet with the accused before the RCM 706 board
Delense requested to meet with the accused before the RCM 706 board
and for that meeting to take place on 25 or 26 March 2011toallowthe
defense more time to purchase transportation tickets because of an
increase in the cost oftransportation
Dclcnse requested appointment ofmitigation expert for defense

32142

8-Marll

Discovery ProductionBat^s^00001052-00011448 (10397 pages),
including35FTRN Poland O^^^l^^^ Art 138 Response [Unclassified]

10-Mar-ll
14-Mar-ll

Dclcnse submitted rebuttal for Article 138 complaint
RCM 706 board agreed to arrange appointment lor brain imaging and
neurological examination ofthe accused
RCM 706 board submitted extension request
Original charges dismissed
SPCMCA approvcdRCM 706 board extension
SPCMCA directed Article 32 investigating officer to investigate
additional charges
SPCMCA issued Accounting Memorandum for Period ofExcluded
Delay
Accused had MRl and was s^^n by neurologist
Accused met with defense counsel at SClF,pursuanl to defense's
request
Defense requested that th^ unit obtainan^wACU for th^ accused
SPCMCA appointed neuropsychologist for defense
SPCMCA denied defense request lor mitigation expert
Defense requested clarification on t^uantico'sinlcrprctationofits rules
relating to visitors
Discovery ProductionBat^s^00011449-00011462(14pagcs),
including Art 138 Response [Unclassified]
Discovery ProductionBatcs^00011463 -00011573 (lllpages),
including Art 138 Response [Unclassified]
RCM 706 board interviewed the accused
D^f^ns^submifledArticl^l38 complaint to Secretary of the Navy
Discovery ProductionBates^00011574-00012711 (1138pag^s),
including Security Classification Guid^,OMPF,Enemy Information
[Unclassified]
Prosecution responded to dclense discovery request datedlOJanuary
2011
Prosecution responded to defense discovery request datcdl6February
2011
Defense requested coordination for transportation of accused for
defense meeting
RCM 706 board submitted extension request
SPCMCA approvcdRCM 706 board ^xtcnsionrequest
Defense requested clarification on discovery production
Discovery ProductionBates^00012712-00012720 (9pages),
including Art 138 Response [Unclassified]
Accused transferred to Fort Leavenworth
Defense requested expert neuropsychologist for Fort Leavenworth

14-Mar-ll
I8-Mar-ll
18-Mar-ll
18-Mar-ll
18-Mar-lI
23-Mar-ll
26-Mar-ll
31-Mar-ll
5-Apr-ll
5-Apr-Il
6-Apr-ll
7-Apr-ll
9-Apr-ll
9Apt-ll
10-Apr-ll
12-Apr-ll

12-Apr-ll
12-Apr-ll
13-Apr-ll
15-Apr-ll
15-Apr-ll
18-Apr-ll
18Apr-lI
20-Apr-ll
20-Apr-ll
20-Apr-Il

Dcl^nse requested miscellaneous items from O^^^^^^^^^^^^^^^l^^^^^

32143

22-Apr-ll
22-Apr-ll
24-Apr-ll
25-Apr-II
25-Apr-11
26-Apr-ll
29-Apr-ll
4-May-ll
12-May-ll
12-May-ll
13-May-ll
22-May-ll
24-May-ll
24-May-ll
25-May-ll
26-May-ll
9Jun-11
lOJun-11
17-Jun-ll
22-Jun-ll
22-Jun-ll
22-Jun-ll
27-Jun-ll
29-Jun-ll
29-Jun-ll
30-Jun-ll

scheduling defense meetings with the accused
RCM 706 board concluded
SPCMCA issued Accounting Memorandum lor Period ofExcluded
Delay
WikiLeaks began releasing purported JTF-GTMO documents
Prosecution requested delay ofArticle 32 investigation
SPCMCA emailed defense for input on prosccution'srcqucst
D^f^nse objected to prosecution'srcqucst for delay of Article 32
investigation
SPCMCA approved prosecution'srequ^stforad^lay of Article 32
investigation
SPCMCA approved dcfcns^'srequest for expert in neuropsychology
Discovery ProductionBates^00012721 -00012924 (204 pages),
including Art 138 Response [Unclassified]
SPCMCA issued Accounting Memorandum for Period ofExcludcd
Delay
Delense submitted discovery request
Prosecution submitted request to delayArticle 32 investigation
Defense objected to prosecution'srcqu^st to delayArticle 32
investigation
SPCMCA emailed defense for input on prosecution'srequest
Def^ns^ requested forensic images on all media involved, digital
forensic reports, and information relating to goycrnmcnt experts
SPCMCA approved prosecution'srcqu^sfforadclay of Article 32
investigation
Discovery ProductionBates^00012925 -00012933 (9pages),
including Art 138 Response [Unclassified]
Defense rcquestedad^f^ns^saf^ to be located atFort Myer andFort
Leavenworth TDS offices
SPCMCA issuedAccounting Memorandum for Period ofExcludcd
D^lay
SPCMCA approved facility and storage: of classified information
SPCMCA issued Protective Order governing law enforcement sensitive
information and other sensitive information
SPCMCA issued Profecfive Order governing Secretary ofthe Army
AR15-6inycstigation
Prosecution requested delay ofArticle 32 investigation
Delense objected to prosccution'srcqucsf to delayArticle 32
investigation
SPCMCA emailed delense for input on prosccufion'srequesf to delay
Article 32 investigation
Diseoy^ryProductionBatcs^00012934- 00021363 (8430 pages). Sec
Armyl5-6 [Unclassified]

32144

5-Jul-lI

SPCMCA approved prosccution'srcquest to delayArticle 32
investigation
6Julll
Defense requested additional ftmding for experts in computer forensics
13-Julll
SPCMCA issued Accounting Memorandum for Period ofExcluded
Delay
22-Jul-ll Prosecution requested delay ofArticle 32 investigation
25-Jul-ll Dclcnsc objected to prosccufion'srcqucst for delay ofArticIc 32
invesfigafion
25Jul-ll Defense requested speedy trial
25-Jul-11 Discovery ProductionBatcs^00021364-00024382 (3019pag^s),
including CID information [Unclassified]
25Julll
Discovery ProductionBafes^00036618 -00036802 (185 pages),
including CID information [Unclassified]
25-Jul-ll SPCMCA emailed dclense for input on prosecufion'srequcst to delay
Article 32
26Jul-ll
SPCMCA approved prosccufion'srequesfforadclay of Article 32
investigation
1-Aug-ll Communication between the parties discussing forensic expert, location
ofArticlc 32, unclassified CID cas^ file
2-Aug-ll Discoy^ryProductionBates^00036803 -00036803 ( l pages),
including CID information [Unclassified]
2-Aug-lI Prosecution disclosed discovery fofh^dclensc
3-Aug-ll Delense requested supplies for defense security expert duringRCM
706 board
7-Aug-ll Dcfensercqucstedacorporation, CyberAgents, Inc.,be appointed
delense expert assistant
8-Aug-ll Prosccufionre-produccd discovery for CPTTooman
9-Aug-ll D^fcns^ requested forensic expert
9-Augll
Discovery ProductionBafcs^00036804-00042806(6003 pages),
including Sec Army 15-6 GOMORs [Unclassified]
lO-Aug-11 SPCMCA appointed defense expert in lorcnsic psychiatry
10-Aug-ll SPCMCA appointed defense lorensic computer experts
10-Aug-ll SPCMCA approved defense request for computer hardware
10-Aug-lI SPCMCA issued Accounting Memorandum for Period ofExcluded
Delay
llAug-11 Discovery ProductionBat^s^ 00042807 - 00044864 (2058 pages),
including Pretrial Confinement Documents [Unclassified]
25-Aug-ll Prosecution requested delay ofArticlc 32 investigation
27-Aug-ll Defense objected to prosecution'srequest to delayArticle 32
investigation
27-Attg-ll SPCMCA emailed defense for input on request
29-Aug-ll SPCMCA approved prosccution'srcquesf for delay of Article 32
invesfigafion

32145

1-Sep-ll

I-Scp-lI
15-Scp-ll
19-S^p-Il
21-Scp-ll
26-Sep-ll
27-Sep-ll
28-Sep-ll
28-Sep-ll
28-Scp-ll
29-Scp-Il
30-Scp-ll
30-Scp-ll
20cf-ll
3-OcflI
40cfll
12-Ocfll
120cfll
130cfll
140ctll
20Ocfll
25 0 c f - l l
25-Ocfll
25 0 c f - l l
270cf-ll
4-Noy-ll
8-Noy-ll

Discovery ProductionBafes^00044865 -00045301 (437 pages),
including Military Intelligence lnycsfigafions[Classificd and
Unclassified]
WikiLeaks began releasing purported Department ofSfafc cables
SPCMCA issued Accounting Memorandum for Period ofExcIudcd
Delay
Discovery ProductionBafes^00024383 -00024459 (77 pages),
including Deleted Information [Unclassified]
Defense submitted preservation request
Prosecution requested delay ofArticIc 32 investigation
Defense objected to prosccufion'srequesf for delay of Article 32
invesfigafion
Delcnsc requested contact information for CID/CCIU personnel
SPCMCA approved delens^'srcquesf for courier cards
SPCMCA approved prosecufion'srcqucsf for delay of Article 32
invesfigafion
Conm^^unication between the parties regarding hard drives in SCIF and
TOC
Defense requested supplies
Prosecution re-produced unclassified discovery to the defense
Defense requested clarification regarding scheduling interviews with
CID personnel
Discovery ProductionBaf^s^00024460 - 00036617 (12158 pages),
including CID information [Unclassified]
Prosecution emailed d^fens^ the federal profecfiyc orders
Discovery ProducfionBafcs^00045302 -00045581 (280pagcs),
including CID information [Unclassified]
SPCMCA issued Excludable Delay Memorandum
Del^nsc submitted discovery request
SPCMCA issued Accounting Memorandum lor Period ofExcluded
Delay
Discovery Production Bafcs^00045582- 00046073 (492 pages),
including CID information [Unclassified]
Delense objected to prosccufion'srequesfforadclay of Article 32
invesfigafion
Prosecution rcqucsfedadclayofArticlc 32 invesfigafion
Prosecution submitted ground rules for proposed presentation of cas^ to
thedefense
SPCMCA approved prosccufion'srcqucsf to delayArticle 32
invesfigafion
Discovery ProducfionBafes^00046074-00375129(329056 pages),
including CID Forensic Reports [Unclassified]
Discovery Production Bafes^00375130-00375182(53 pages),
including Military Intelligence Investigation [Unclassified]

32146

Discovery ProducfionBaf^s^00376954-00378175 (1222 pag^s),
including Charged Documents, C3 Repots, Classification Review
[Classified]
8-Noy-ll Discovery ProducfionBafcs^00378176- 00378176(l pages),
includingVolumes.fxf [Unclassified]
8-Noy-ll Discovery ProductionBafes^00378177- 00378624 (448pag^s),
including Military Intelligence Invesfigafion and Classified CID
informafion[Classificd and Unclassified]
8-Noy-ll Prosecution briefed defense on prosccufion'scase
10-Noy-ll Defense requested that prosecution provideaforensic briefing fo the
accused
15-Noy-ll Defense submitted discovery request
16-Noy-ll Defense objected to prosccufion'srequesf for delay of Article 32
invesfigafion and proposedasfart date offhc Article 32 invesfigafion
forl2Dccemb^r20II
I6Noy-lI Delense submiffcd discovery request
1 6 N o y l I Prosecution requesfedadelayoffhc Article 32 invesfigafion and
requestedasfartdafcoffhc Article 32 investigation forl6D^cemb^r
2011
16-Noyll SPCMCA approved prosecufion'srequcsf for delay of Article 32
investigation and ordered Article 32 invesfigafion fo start no earlier
fhanl6Dcccmber2011
16-Noy-ll SPCMCA issued Accounting Memorandum for Period ofExcludcd
Delay
16-Noy-ll SPCMCA issued special instructions fo the Article 32 inyesfigafing
officer
17-Noy-Il Discovery ProducfionBafes^00378626- 00378649 (24pages),
including CID information and classification reyiew(s)[Classificd and
Unclassified]
17Noy-ll Discovery ProducfionBates^00378650-00384256(5607 pages),
including Sec A^^yl5-6 GOMORs [Unclassified]
18-Noy-11 Prosecution bri^f^d defense and accused on prosccufion'scasc
22-Noy-ll Defense submitted request for evidence production to Article 32
invesfigafingofftccr
23-Noy-ll Discovery ProducfionBafes^00378625 - 00378625 ( l pages),
includingDAForm4137[Classified]
23-Noy-11 Discovery Production Bafes^00402272 -00407990(5719pagcs),
including Sec Army 15-6 GOMORs [Unclassified]
23-Noy-ll Discovery ProducfionBafcs^ 00407991 - 00409678 (1688 pages),
including CID information and DSS case file [Unclassified]
28-Noy-ll Dcl^nse requested computer software
IDecll
Discovery ProducfionBafes^00384257-00402271 (18015 pages),
including Sec Army 15-6 GOMORs [Unclassified]
4Dec11
Dcl^nsc requested fh^ prosecution provide any impeachment material
inascparaf^ production from fhc remaining discovery
8-Noy-ll

32147

6DcclI
7DCC-11
7Dec11

8Decll
9Dccll
9-Dcc-ll

9DCC-11
16Dccll
19Decll

19Dcc11
22-Dcc-ll
24-Dcc-ll
2Jan12
3-Jan-12

3-Jan-12
4-Jan-12

7-Jan-12
8Janl2
llJan-12

I2-JanI2

18-Jan-12
20-Jan-12

Discovery ProductionBatcs^00409679 -00410599 (921 pages),
including CID information [Unclassified]
Discovery PtoductionBatcs^00375183 - 00375197(I5pagcs),
including Sec Army 15-6 GOMORs [Unclassified]
Discovery ProductionBates^00410600-00410670 (71 pages),
including Enemy information, accused's office work product, and
classification reyiew(s)[Classificd]
Defense submitted inquiries regarding logistics ofthe Article 32
investigation
Defense requestedatranslationofavideo that the prosecution revealed
to the defense on8November 2011
Discovery ProductionBafes^00375198 - 00376953 (1756 pages),
including CID inlormation, Schmiedl Files, Classification Reviews
[Unclassified]
Discovery ProductionBates^ 00410671 -00410689 (19pages),
including CID inlormation [Unclassified]
Article 32 investigation began
Discovery PtoductionBates^00410690 - 00410697 (8 pages),
including CID information and pretrial confinement information
[Unclassified]
Discovery ProductionBates^00410698 -00410701 (4pagcs),
including Classification rcview[Classificd and Unclassified]
Article 32 investigation concluded
Article 32 investigating officer delay began
Article 32 investigating officer delay concluded
Prosecution requested Article 32 Investigating Officer exclude as
reasonable delay anytime between 22 December 2011and3January
2012fhafh^ did not work on the Article 32 investigation based on the
Icd^ral holidays and weekends
SPCMCA issued AccounfingM^moran:dum for Period ofExcluded
Delay
Article 32 investigating officer sent an email excluding asareasonable
delay the days between 23 December 2011and3January2012 when
h^ did not work on the Article 32 investigation
Article 32 investigating officer delay began
Article 32 investigating officer delay concluded
Article 32 investigating officer cotnplefed his report and
recommendations, including providing the SPCMCAwith an
excludable delay memorandum
Discovery ProductionBates^00410702 - 00410788 (87 pages),
including Article 32 investigating officer's final report and pretrial
confinement recordings [Unclassified]
Defense requested additional funding for forensic experts
Defense submitted discovery request

32148

20-Jan-12

Discovery ProductionBatcs^00410789 -00410870 (82 pages),
including CID information and accused's Skype logs [Unclassified]

25-Jan-12

Delense requested assistance with travel arrangements for defense
lorensic experts
Discovery ProductionBafes^00410871 - 00411342 (472 pages),
including CID Docs, Art32 Audio-Unclassified [Unclassified]

27-Jan-12
27-Jan-12

27-Jan-12

30-Jan-12
31-Jan-I2
3I-Jan-12
3-Fcb-12
3-Feb-12
6Feb-12
8-Feb-12
I6-Fcb-12
23-Fcb-12
29-Feb-12
5-Mar-12
ll-Mar-12
13-Mar-12

15-Mar-12
16Mar-12
I6-Mar-I2
22-Mar-12

Discovery ProductionBafes^004I1343 -00411366 (24pagcs),
including Mantnng Computer Logs, Closed session-111218
[Unclassified]
Prosecution responded to defense discovery request dated 29 October
2010, 15Novcmbcr2010,8Dcccmbcr2010,10January 2011,16
Fcbruary2011,13May2011,13October2011,15Novcmbcr2011,16
November 2011,at^d 20 January2012.
D^fens^ requested an interview with thr^^ OCAs
Defense requested contact information for three OCAs
Defense submitted discovery request
Charges referred
Court received Electronic Docket Notification
Defense requested coordination for transportation ofaccused to defense
meeting
Telephonic RCM 802 session
Def^ns^ filed Motion to Compel Discovery
Arraigtm^^nt
Defense requested clarification onTouhy regulation
Defense requested clarificationonTouhy regulation
Defense r^questcdfhatprosecutionrefainacomm^rcial email account
to resolve email issues
Discovery ProductionBatcs^00411367- 00412613 (1247 pages),
including CID information/Attestations/PTC Visitation Logs, Audio
Logs [Unclassified]
Article 39(a)session began
Article 39(a)session concluded
Discovery ProductionBates^00412614 - 00417914(530I pages),
including FBI information [Unclassified]
Email sent by fhen-CPT Fein stating "the government's position is that
classified information docs not fall under RCM 701. Th^ information
the defense has requested in discovery is classified and the prosecution
has no reason to believe it is not classified. Because th^ information is
classified,RCM 701 does not apply(asp^r RCM 701(a)and(f)),
which leaves the prosecution to use the standards under MRE 505
along with Brady and its progeny. The defense provided no authority
to apply RCM 701(a)(2) or(6) to classified information and all the
authorities only reference unclassified information. The prosecution

32149

has relied on MRE 505 and Brady for regulation ofwhat classified
inlormation is discoverable."
23-Mar-12 Defense requested update on whether defense will be given SIPRNET
access near Mr. Coombs'officc in Rl:iod^ Island
27-Mar-12 Defense requested assistance submitfingTouhy request
27-Mar-12 Defense requested clarification on what has been produced in discovery
and und^r what standard
28-Mar-I2 RCM 802 telephonic conference
9-Apr-12 Defense requested clarification on what discovery standard applied to
grand jury material
12-Apr-I2 Discovery ProductionBates^00417915 - 00419646 (1732 pages),
including FBI information, accused AKO-S email, trial documents,
DISA and JlEDDOinformation[Classified and Unclassified]
12-Apr-12 Discovery ProductionBates^00419647-00419804(158 pages),
including CID information, damage asscssment(s), motions hearing
audio [Unclassified]
12-Apr-12 GCMCA approved dcf^ns^ request for additional funding for defense
forensic experts
I3-Apr-12 Defense requested the prosecution provide the date the prosecution
received th^ documents produced in discovery
16-Apr-12 Defense requested whether thcr^ were any follow-up damage
assessments from those previously produced
19-Apr-12 Defense requested hard copies of charged documents forl8USC 793
offenses be delivered to NavalWar College
I9-Apr-12 Delense requested who redacted the FBI documents and under what
standard
23-Apr-12 Court ruled on Defense Motion to Dismiss All Charges
24-Apr-12 Article 39(a)session began
24-Apr-12 Discovery ProductionBat^s^00419805 -00445503 (25699pagcs),
including Interim CID Forensic Reports[Classified and Unclassified]

^

26-Apr-12
8-May-12
10-May-I2
15-May-12
I5-May-12

15-May-12
18-May-12
18-May-12

Article 39(a)session concluded
Del^ns^ requested l^gal administrator for def^ns^ team
Defense filed Motion to Compel Discovery ^2
Discovery ProductionBates^00445504-00447091 (1588 pages),
including FBI information[Classified]
Discovery Production Bafes^00447092 -00447392 (301 pages),
including Administrative documents, CID information, and damage
asscssmcnt(s)[Unclassified]
Discovery Production Bates^00447393 - 00447439 (47 pages),
including Damage assessments[Classificd]
Discovery ProductionBaf^s^00447440-00447666 (227 pages),
including FBI inlormation[Classified and Unclassified]
DOS Dralt Damage Assessment available for inspection with
prosccution[Classified with Special ConfrolM^asurcs]

32150

21-May-12 Discovery ProductionBates^00447667- 00447817(151 pages),
including Grandjury information [Unclassified]
21-May-12 Discovery ProductionBatcs^00447818 -00447848 (31 pagcs),
including Damage assessments and CIA information[Classificd]
22-May-12 Defense requested access to Department ofState damage assessment
24-May-12 Discovery Production Batcs^00447849-00447944 (96 pages),
including Pretrial confinement recordings and photos, CID information,
and trial documenfs[Classificd]
29-May-12 Discovery ProductionBates^00447945 -00449240 (1296pag^s),
including Trial documenfs[Classified]
30-May-I2 Defense requested access to chain ofcommand for each security expert
to discuss job requirements
30-May-12 RCM 802 telephonic conference
l-Jun-12 Defense requested rc-appointmentofsccurity experts to reficct job
requirements
4-Jun-12 Discovery ProductionBatcs^00449241 -00449242 (2 pages),
including DOEdamagcassessment[Classified]
6-Jun-12
Article 39(a)sessionb^gan
DIA Information RcvicwTask Force Report available for inspection
6-Jun-12
with prosccution[Classified with Special Control Measures]
7-Jun-12
8-Jun-12
ll-Jun-12
13-Jun-12
18-Jun-12
25-Jun-12
26-Jun-12
2-.Iul-12

3-Jul-12

3-Jul-12

3-Jul-12
6-Jul-12

Defense submitted discovery request
Article 39(a) session concluded
Defense requested that the prosecution prepare and produce an
unclassified version ofall classified damage assessments
Discovery ProductionBafes^00449243 -00449402 (160pages),
including DHS damage asscssmcnt[Classified]
Def^ns^ requested the appointment of security expert when defense
reviews damage assessments
Article 39(a)session
Delcnsc submitted discovery request
Discovery ProductionBatcs^00508935 - 00508940(6pages), CIA
WikiLcaksTask Force Report available lor inspection with prosecution
[Classified with Special Control Measures]
Discovery ProductionBates^00449403 -00449464 (62 pages),
including CID information, trial documents, andDISA logs
[Unclassified]
Discovery ProductionBatcs^00449465 - 00449552 (88 pages),
including CID report, damage asscssmenl(s), and accused's emails
[Classified]
Prosecution responded to defense'sdiscovcry request date 26 Jun^
2012
Defense requestcdasafe for storage of classification information at
MAJHurley'soffice

32151

6-Jull2

9-Jul-12
I2-Jul-12
12-Jul-12

12-Jul12
16JuII2
19Jul12
20-Jul-12
26-Jul-12

27-Jul-12

27-Jul-12

27-Jul-12

Defense requested access toWikiLeaksTask Force report and
Department ofStatc damage assessment duringl6-20July2012
motion hearing
Defense submitted discovery request
Defense requested coordination for SCIF to review damage
assessments
Discovery ProductionBales^00449553 -00449571 (19pages),
including Pretrial confinement recordings and CID lorensic report
[Unclassified]
Discovery ProductionBates^00449572 -00449581 (10pages),
includingDISAinformafion[Classificd]
Article 39(a)scssion began
Delense submitted discovery request
Article 39(a)scssion concluded
Email sent by MAJFein to defense stating-"ln preparation for the
upcoming Articlel3 motion, the prosecution began reviewing emails
yesterday from members ofthe O^^^t^^o brig staffand the chain of
conm:^and. The prosecution found some emails that are obviously
material to the preparation ofthe defense for Articlel3 purposes. In an
effort to get these emails to you as soon as possiblc,we intend to
produce them tomorrow and send them to you via email so that you
hav^acopy immediately. Wewill also produce them according to our
normal process.Weestimafe there are approximately 60 emails."
Email sent by MAJ Fein to defense stafing-"In an effort to get these
^mails(BATES^:00449793-00449942)toth^dcfcns^assoonas
possible, attached is the encrypted file containing th^ emails. Please
changeth^cxtcnsionfo "exe" (without spaccs)and run th^ program
with the standard password. In preparation lor the upcoming motion,
we reviewed these documents all day yesterday and found these to
disclose."
Email sent by MAJFein to defense stafing-"Wereccivcd the emails
with the original documents approximately six months ago and
prioritized their review for Giglio/Jcncks material based on potential
witness^s,which is why w^ reviewed the material this week."
Email sent by MAJ Fein to Court sfafing-"0n8Dcc^mbcr 2010, fh^
dclcns^ requested "[a]ny and all documents or observation notes by
employees ofthe (quantico confinement facility relating to PFC
Bradley Manning." Th^ United States produced all documentation
from the quantico Brig cither as wc received it or at the end ofthe
accused's pretrial confinement at quantico. In an effort to preserve all
records involving the accused, the prosecution requested (quantico
preserve all documentation and their emails. The purpose ofthis
preservation request was to ensure the accused's right toafair trial by
preserving any emails for future litigation concerning the
discoverability of the emails and/or for the prosecution to conducta

32152

27-Jul-12
27-Jul-12
27-Jul-12
28-Jul-I2
l-Aug-12
2-Aug-12

Giglio and Jencks (RCM914) check ofthe emails. OnWcdncsday,the
prosecution started reviewing the emails for potential impeachment
evidence or Jencks material, and during that review found 84 emails
which wc deemed obviously material to the preparation ofthe defense
forArticlcl3purposcs. Wifhin24hours,th^ United States notified the
defense and sent the emails last night."
Defense requested what discovery standard applied to the quantico
emails
Discovery ProducfionBafes^00449793 - 00449942 (150 pages),
including Brig Emails [Unclassified]
RCM 802 telephonic conference
DiscovcryProductionBafes^00449582 00449764 (183 pages),
including NGAinlormation[Classified]
Defense submitted discovery request
Discovery ProductionBates^00449765 -00449792 (28 pages),
including USCYBERCOM and FBI damage assessments[Classified]

2-AugI2

Discovery ProductionBates^00449943 -00479483 (29541 pages),
includingJointStaff^DOD/H0DA/DIAinformation[Classificd]

2-Aug-12

Discovery ProductionBates^00479484-00479489(6pagcs)
(RECALLED),includingDIAinformation[Classificd]
Discovery ProductionBates^00479490-00479508 (19pages),
including DIA inlormation[Classified]
Discovery Production Bates^00479509 - 00479512 (4pages)
(RECALLED), including DIA inlormation[Classifi^d]
Discovery ProductionBatcs^00479513 - 00479518 (6pages),
including DIA information[Classificd]
Discovery ProductionBates^00479519 00479522 (4pages)
(RECALLED), including DIA information[Classificd]
Discovery ProductionBates^00479523 -00479583 (61 pages),
includingDlAinformation[Classified]
Discovery ProducfionBates^00479584 - 00479590 (7 pages)
(RECALLED),includingDlAinlormation[Classified]
Discovery ProducfionBafes^00479591 - 00479683 (93 pages),
includingDlAinformation[Classified]
Discovery ProductionBatcs^00479684 - 00479685 (2 pages)
(RECALLED), including DIA informafion[Classificd]
Discovery ProductionBates^00479686 00480519 (834 pages),
including DIA informafion[Classified]
DiscoveryProductionBates^00480520 00480521 (2 pages)
(RECALLED), includingDIAinformation[Classified]
Discovery ProductionBafes^00480522 - 00480624 (103 pages),
includingDlAinformation[Classified]
Discovery ProducfionBatcs^00480625 - 00480631 (7pag^s)
(RECALLED), including DIA information[Classified]
Discovery ProductionBates^00480632 - 00480670 (39pagcs),

2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-I2
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12

32153

2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-I2
2-Aug-12
2-Aug-12
2.Aug-12
2-Aug-I2
2-Aug-12

including DIA information [Classified]
Discovery Production Bates # 00480671 - 00480677 (7 pages)
(RECALLED), including DIA information [Classified]
Discovery Production Bates # 00480678 - 00480785 (108 pages),
including DIA information [Classified]
Discovery Production Bates # 00480786 - 00480787 (2 pages)
(RECALLED), including DIA information [Classified]
Discovery Production Bates # 00480788 - 00481082 (295 pages),
including DIA information [Classified]
Discovery Production Bates # 00481083 - 00481083 (1 pages)
(RECALLED), including DIA information [Classified]
Discovery Production Bates # 00481084 - 00494337 (13254 pages),
including DIA information [Classified]
Discovery Production Bates # 00494338 - 00494340 (3 pages)
(RECALLED), including DIA information [Classified]
Discovery Production Bates # 00494341 - 00496277 (1937 pages),
including DIA information [Classified]
Discovery Production Bates # 00496278 - 00496282 (5 pages)
(RECALLED), including DIA information [Classified]
Discovery Production Bates # 00496283 - 00496462 (180 pages),
including DIA information [Classified]
Discovery Production Bates # 00496463 - 00496469 (7 pages)
(RECALLED), including DIA information [Classified]
Discovery Production Bates # 00496470 - 00498654 (2185 pages),
including DIA information [Classified]
Discovery Production Bates # 00498655 - 00498657 (3 pages)
(RECALLED), including DIA information [Classified]
Discovery Production Bates #00498658 - 00498721 (64 pages),
including DIA information [Classified]
Discovery Production Bates # 00498722 - 00498725 (4 pages)
(RECALLED), including DIA information [Classified]
Discovery Production Bates # 00498726 - 00498769 (44 pages),
including DIA information [Classified]
Discovery Production Bates # 00498770 - 00498773 (4 pages)
(RECALLED), including DIA information [Classified]
Discovery Production Bates # 00498774 - 00498870 (97 pages),
including DIA information [Classified]
Discovery Production Bates # 00498871 - 00498872 (2 pages)
(RECALLED), including DIA information [Classified]
Discovery Production Bates # 00498873 - 00498926 (54 pages),
including DIA information [Classified]
Discovery Production Bates # 00498927 - 00498928 (2 pages)
(RECALLED), including DIA information [Classified]
Discovery Production Bates # 00498929 - 00498964 (36 pages),
including DIA information [Classified]

32154

2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2Aug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug-I2

2-Aug-12

DiseoveryProductionBates#00498965 -00498965 ( l pages)
(RECALLED), including DIA information[Classified]
Discovery ProductionBates#00498966-00498997 (32 pages),
including DIA inlormation[Classified]
Discovery ProduetionBates#00498998 -00499000 (3 pages)
(RECALLED),including DIA information[Classified]
Discovery ProductionBates#00499001 -00499006(6pages),
includingDIAinformation[Classified]
Discovery ProductionBates#00499007- 00499010(4pages)
(RECALLED),including DIA infoimation[Classified]
Discovery ProductionBates#00499011 -00499024(14pages),
includingDlAinformation[Classified]
Discovery ProduetionBates#00499025 -00499026 (2 pages)
(RECALLED), including DIA information[Classified]
Discovery ProduetionBates#00499027-00499147 (121 pages),
including DIA inloi^ation[Classified]
Discovery ProduetionBates#00499148 -00499148 ( l pages)
(RECALLED),including DIA inlormation[Classified]
Discovery ProduetionBates#00499149-00499167 (19pages),
including DIA infoimation[Classified]
Discovery ProduetionBates#00499168 - 00499172(5 pages)
(RECALLED),including DIA inloi^ation[Classified]
Discovery ProduetionBates#00499173 -00499398 (226 pages),
includingDlAinfoimation[Classified]
Discovery ProductionBates#00499399-00499402 (4pages)
(RECALLED), ineludingDIAinformation[Classified]
Discovery ProduetionBates#00499403 - 00499548 (146 pages),
including DIA information[Classified]
Discovery ProduetionBates#00499549 - 00499552 (4pages)
(RECALLED), ineludingDlAinfoimation[Classified]
Discovery ProductionBates# 00499553 -00499562 (10pages),
includingDIAinformation[Classified]
Discovery ProductionBates#00499563 -00499564 (2 pages)
(RECALLED),ineludingDIAinfoimation[Classified]
Discovery ProductionBates#00499565 - 00499591 (27 pages),
ineludingDlAinlormation[Classified]
Discovery ProductionBates#00499592 -00499594 (3 pages)
(RECALLED), including DIA information[Classified]
Discovery PioduetionBates#00499595 -00504420 (4826 pages),
includingDlA information and other damage assessment(s)[Classified]
Discovery PioduetionBates#00504421 - 00504481 (61 pages),
including Pretrial confinment recordings and trial documents
[Unclassified]
Discovery ProductionBates#00504482 -00505060(579 pages),
includingDIA information, DOS and DIA damage assessments marked

32155

[Classified]
3-Aug-12
3-Aug-I2
3-Aug-12
3-Aug-12
6-Aug-12
7-Aug-I2
7-Aug-12

lO-Aug-12
13-Aug-12
I4-Aug-12
14-Aug-12
14-Aug-12
16-Aug-12
I6-Aug-12

17-Aug-12
21-Aug-12
23-Aug-12
27-Aug-12
27-Aug-12
30-Aug-12
13-Sep-12
13-Sep-12

Discovery ProductionBates#00505061 -00505183 (123 pages),
including Damage assessments and CID information[Classified]
Discovery ProductionBates#00505184- 00505204 (21 pages),
including CID information and various OCA documents [Unclassified]
Discovery Production Classified digital evidence[Classified with
Special Control Measures]
Discovery ProductionNSAdocuments[Classified with Special Control
Measures]
Discovery ProductionBates#00505205 - 00505256(52 pages),
including damage assessments and enemy information[Classified]
Discovery ProductionBates#00505257 - 00505257 ( l pages),
including Intelink attestation [Unclassified]
Discovery ProductionBates#00505258 -00505808 (551 pages),
including FBI information and variation of charged documents
[Classified]
Discovery ProductionBates#00505809 -00506675 (867 pages),
includingDIA information[Classified]
Delense requested prosecution'sGiglio request for each government
witness
Discovery ProductionBates#00506676-00506684(9pages),
including O^^^t^^o information [Unclassified]
Discovery ProduetionBates#00508691 -00508934(244 pages),
including quantico information [Unclassified]
Prosecution responded to defense discovery request datedlAugust
2012
Discovery ProductionBates#00506685 -00508690(2006 pages),
including USCYBERCOMinfoimation[Classified]
Discovery PioductionBates#00509516-00511906 (2391 pages),
including USCYBERCOM information available for inspection with
prosecution [Classified with Special Control Measures]
Defense filed Motion to Compel Discovery #3
Discovery PioduetionBates#00508941 -00509515 (575 pages),
includingDIA infoimation[Classified]
Discovery PioduetionNClX information available for inspection at
ODNI HO [Classified with Special Control Measures]
Article 39(a)session began
DiseoveryProductionBates#00511907 00514453 (2547 pages),
including t^uantico emails [Unclassified]
Article 39(a)session concluded
Prosecution responded to defense discovery request dated 19July 2012
Prosecution responded to defense discovery request dated9July2012

32156

14-Sep-12

14-Sep-12
14-Sep-12
15-Sep-12
15-Sep-12
19-Sep-12
19-Sep-12
19-Sep-12
20-Sep-12
20-Sep-12

28-Sep-12

28-Sep-12

Discovery ProduetionBates#00514501 -00514898 (398 pages), DIA
and ODNI inlom^ation available for inspection with prosecution
[Classified with Special Control Measures]
Discovery ProductionBates#00519353 - 00523672 (1286 pages),
including DOS information[Classified]
Discovery Production DoS information[Classified with Special
Control Measures]
Discovery ProduetionBates#00514454-00514497 (44 pages),
including DHS information [Unclassified]
Discovery ProductionBates#00514498 -00514498 ( l pages),
including DHS information[Classified]
Discovery ProductionBates#00514499-00514500 (2 pages),
including DOE information [Unclassified]
Discovery ProductionBates#00514899-00515842 (944 pages),
includingDIA and CIA information[Classified]
Discovery ProductionBates#00515843 -005I9167 (3325 pages),
including t^uantico emails [Unclassified]
Discovery ProductionBates#00519168 -00519352 (185 pages),
including FBIinformation[Classified]
Discovery ProductionBates#00519353 - 00523672 (1286 pages),
including DOS information[Classified],which was previously made
available for inspection onI4Sepl2
Discovery ProductionBates#00509516-00511906 (2391 pages),
including USCYBERCOM previously made available for inspection on
16Augl2
Discovery ProduetionBates#00514501 -00514898 (398 pages),
including DIA and ODNI information previously made available for
inspection onl4Sepl2

^HDENFEIN
MAJ,JA
TrialCounsel

32157

UNITED STATES OF AMERICA
V.

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

Government Response
to Defense
Additional Requested Witnesses:
Article 13
16 October 2012

The United States reviewed the defense witness request dated 26 September 2012.
Pursuant to Rule for Courts Martial (RCM) 703(b)(1), the United States makes the following
determinations regarding defense requested Article 13 witnesses:
1. Col Thomas Johnson: The United States denies production of Col Johnson. The defense's
proffered testimony ofCoI Johnson is not relevant and necessary underRCM 703(b)(1). Col
Johnson is inelevant because he wasapublicaffairsofficer(PAO)responsibIe for relaying
information to the media. AsaPAO,Col Johnson did not make anydeternnnations regarding
the aceused'selassifieation and status. Col Choike, Col Oltman, CW04Averhart, and CW02
Barnes will testily regarding the limited extent ofLtCenFlynn'sinvolvement, thereby making
Col Johnson'stestimony cumulative and unnecessary.
2 CaptBrianVilliaid: The United States denies production of Capt Villiaid The defense's
proffered testimony ofCaptVilliard is not relevant and necessary underRCM 703(b)(1). Capt
Villiard is irrelevant because he wasaPAOresponsible lor relaying information to the media.
AsaPAO, Capt Villiard did not make any determinations regarding the aceused'sclassification
and status. CW04Averhart and CW02 Barnes will testify regarding the requirement that the
accused surrender his clothing, and CW02 Barnes will testify regarding the evet^tsof2 March
2011,thereby making Capt Villiard'stestimony cumulative and unnecessary.

ALEXANDER 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 16 October 2012.

ALEXANDER voN ELTEN
CPT, JA
Assistant Trial Counsel

s#s:^

32158

UNITEDSTATES OF AMERICA
v.
Manning, Bradley E.
PFC,U.S.Army,
HHC,U.S.ArmyGarrison,
Joint Base Myer-Henderson Hall
FortMyer,Virginia 22211

Prosecution NotiUcation
to the Court of
Department of State Files
l^October2012

As ofl60etober 2012, the United States has made available for inspection bythe defense all
DepartmentofState documents forwhich the Courtapprovedlimited disclosure under Military
Rule ofEvidenee505(g)(2)in its ruling dated 28 September 2012. The prosecution will disclose
in classified discovery all non-captioned documents by 26 October 2012. All captioned
documents are available for inspection at the Department ofState.

J.HUNTER WHYTE
CPT,JA
AssistantTrial Counsel

Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David Coombs,
Civilian Delense Counsel via eleetroniemail,onl60ctober 2012.

JHt^^ER^HYTE
CPT,JA
AssistantTrial Counsel

APPELLATEEXHIEIT^
PAGEREFERENCED;
PAGE^OF^PAGE^

32159

Appellate Exhihit3^3
Ipages
ordered sealed for Reason7
^governments
Military Judge's Seal Order
dated20August2013
stored in the original Record
ofTrial

32160

Appellate Exhihit3^3
Enclosurel
ipages
classified
"SECRET"
ordered sealed for Reason2
andReason7^govemment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial



32161

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE REPLY TO
v. GOVERNMENT RESPONSE
TO DEFENSE MOTION TO
DISMISS 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, DATED: 17 October 2012
Fort Myer, VA 22211

RELIEF SOUGHT

1. PFC Bradley E. Marming, by counsel, pursuant to the Sixth Amendment to the United States
Constitution, Article 10, Unifonn Code of Military Justice (UCMJ), 10 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 speci?cations 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, 61 M.J. 122, 125 (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 C.M.R. 64, 69
(C.M.A. 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 M.J. 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).

ARGUMENT

3. The Government claims that the ?accused has been awaiting court-martial since 27 May
2010, which totals 867 days, as of the date of this response.? See Government Response, p. 62,
fn 11. The days are not calculated based on the date of the Government?s Response; the days are

1 APPELLATE EXHIBIT 35
PAGE REFERENCEI):
PAGE or GES

~o

I..u-ls

32162

calculated as of the day the accused is brought to trial. Accordingly, if trial proceeds as
scheduled in early February, it will be nearly 1000 days from the time PFC Manning was placed
under pretrial restraint that he will have been brought to trial within the meaning of Article 10.
This is a clear violation of PFC Manning?s right to a speedy trial under R.C.M. 707 and Article
10.

A. Pre-Referral Delay
1. OCA Classi?cation Reviews Were Not Completed In a Reasonably Diligent Manner
a) Classi?cation Reviews Were Not Required Prior to the Article 32 Hearing

4. It is clear that PFC Manning?s court martial was delayed for over a year and a half because of
the Govemment?s entirely self-imposed requirement that classi?cation reviews needed to be
conducted prior to the Article 32 hearing.

5. Contrary to the Government?s contention, there is nothing within the Manual for Courts-
Martial or in relevant case law that would require the Government to complete a classi?cation
review prior to the Article 32. See Government Response, p. 7 (?Before referral, a classi?cation
review is necessary to establish the classi?cation of the evidence to meet an element of the
charge?). The Government, as it did when it thought it was obligated to send redacted Defense
motions to an OCA for review, undertook the added obligation of obtaining a classi?cation
review prior to the Article 32 without the requirement that it do so. The fact that the
classi?cation reviews were not required prior to the Article 32 hearing is proven by looking at
the fact that ODNI classi?cation review was disclosed to the Defense a?er the Article 32
hearing. Had the classi?cation reviews been a legal pre-requisite, the Government could not
have proceeded in the absence of this classi?cation review.

6. A classi?cation review is typically used by the Government for one of three distinct purposes:

1) In order to assert a privilege under M.R.E. 505;
2) In order to demonstrate that information is properly classi?ed; or

3) In order to allow the Government the opportunity to argue for a closed session during
Grunden hearings.?

7. However, a classi?cation review is not the only method available to the Government in order
to assert a privilege under M.R.E. 505, demonstrate that information is properly classi?ed, or
argue for a closed session. The Government may assert a privilege under M.R.E. 505 or
demonstrate that information is properly classi?ed through testimony of an OCA. Likewise, the
Government may demonstrate the need for a closed hearing through testimony, or, under R.C.M.
806, by requesting the military judge to make a ?nding based upon her own review of the
information. Either alternative is a common sense solution whenever the Government is faced

The classi?cation review is also used by the Government to demonstrate the ?overriding interest? that will be
prejudiced if the proceedings remain open. The classi?cation review typically will achieve this objective by
describing the harm to national security that would result from disclosure to the public.

2

32163

with a situation where a classi?cation review has not been completed in a timely marmer or has
not even been initiated. The Government, however, failed to grasp the fact that classi?cation
reviews were not required prior to the Article 32 hearing (or for that matter for the court?martial).
Instead, the Government treated the classi?cation reviews as if they were somehow a
prerequisite to proceeding with the court-martial.2

8. The trial counsel in this case are similar to those in the Pyburn case. See United States v.
Pyburn, 1974 WL 13919 (C.M.A.). In Pyburn, the Court of Military Appeals found a violation
of the accused?s speedy trial rights where the trial counsel waited 62 days for laboratory results
prior to starting the Article 32 hearing. The Court stated:

The crucial delay in this case, however, resulted from the 62 days it took for
evidence to be analyzed in the forensic laboratory of another agency of the federal
government. In this case of alleged rape in which the female victim was able to
identify the accused but not able to say whether an act of sexual penetration
occurred after she had been beaten unconscious, and because the medical
evidence was marginal at best, we cannot seriously question the relevancy of a
laboratory analysis of the real evidence involved. Nevertheless, other strong
evidence of guilt was available to the Government, and we believe that the
investigating officer was not compelled to await the laboratory results before
completing the statutory duties required by Article 32, UCMJ, 10 USC 832. We
do find a lack of diligence on his part, as well as on the members of the
prosecution, in their failure to justi?r this 62-day period of delay. Even where the
prosecution does not exercise any direct control over the facility where evidence
is analyzed, the duty of speedily trying the accused cannot be set aside by the
unexplained slowness of another agency in analyzing and returning evidence. The
62-day delay associated with the laboratory analysis in this case was not a ?really
extraordinary circumstances? justifying the failure to try the accused within 90
days.

Id. at *180 (emphasis supplied).

9. As in Pyburn, this Court should conclude that although it would have been marginally more
helpful for the Government to have the bene?t of a classi?cation review prior to the Article 32, a
classi?cation review was by no means a legal requirement. The Government clearly had other
means of demonstrating that the charged information was classi?ed at the time of the offense,
describing the harm to national security, asserting a privilege on behalf of the OCA, or
requesting a closed hearing. The Investigative Of?cer was not ?compelled to await? the
classi?cation review before ?completing his statutory duties required by Article 32, Id.
As such, the resulting delay, at least 238 days from the completion of the R.C.M. 706 Board on
22 April 2011 until the start of the Article 32 hearing on 16 December 2011, was a violation of
PFC Manning speedy trial rights.

2 The Government also indicated that a classi?cation review was necessary to ensure the proper handling and
storage of information during discovery. The Defense does not understand what this means. Classi?ed information,
including the charged documents, was produced prior to the classi?cation reviews being completed. How then
could the classi?cation review be ?necessary? to ensure proper handling and storage of information during
discovery?

32164

b) The Total Elapsed Time to Complete Classi?cation Reviews was 530 Days, a Clearly
Unreasonable Period of Time

10. The Govemment?s explanation of which OCAs were tasked with completing a classi?cation
review when is less than clear. It appears that there was some discussion and coordination of
classi?cation reviews early on in the case. The Government states in its Response:

The prosecution began working to facilitate discovery immediately, which
required, inter alia, obtaining classi?cation reviews. Directly following preferral
of the original charges on 5 July 2010, the trial counsel in Iraq began reaching out
to DOS and DOD for assistance in identifying the appropriate personnel to
conduct classi?cation reviews of the charged documents. See Enclosure 10. In
July 2010, the trial counsel met with United States Army Criminal Investigation
Command (CCIU) and DOJ in Wiesbaden, Germany to discuss the way forward.
At that meeting, it was determined that DOJ (based on their ongoing relationships
and experience with national security cases) would help facilitate the coordination
for DOS and DOD information. See id

See Government Response at p. 4-5.
11. The Government continued:

On 28 July 2010, with coordination from DOJ, the trial counsel requested the
assistance from DOD for classi?cation reviews of classi?ed documents. On 30
July 2010, the trial counsel was noti?ed that DOD was coordinating with 1st
Cavalry Division to facilitate the classi?cation review of the video that is the
subject of Speci?cation 2 of Charge II. See id.

Upon transfer of the accused to MDW, the prosecution continued the process of

requesting classi?cation reviews from various organizations. See Enclosures 20
and 21.

Id. at p. 7-8.

12. The Government then conveniently skips over the eight month period from July 2010 to
March 2011. It then picks up in March 2011:

After additional charges were preferred [in March 2011], the prosecution
memorialized its requests for OCAs to prepare classi?cation reviews of the
charged documents and evidence necessary for the Article 32 investigation. Pre-
referral and in preparation for the Article 32 investigation, the prosecution
requested classi?cation review(s) of CENTCOM, DOS, SOUTHCOM,
DISA, CYBERCOM, INSCOM, ODNI, and DOD. See Enclosures 20
and 21.

The prosecution submitted formal requests for classi?cation reviews as follows:

Id.



32165

i. CENTCOM. On 18 March 2011, the prosecution submitted a written
request to CENTCOM for classi?cation reviews. See Enclosures 20-21.

ii. On 18 March 2011, the prosecution submitted a written
request to for classi?cation reviews. See Enclosures 20-21.

DOS. On 18 March 2011, the prosecution submitted a written request
to DOS for classi?cation reviews. See Enclosures 20-21.

iv. SOUTHCOM. On 18 March 2011, the prosecution submitted a
written request to SOUTHCOM for classi?cation reviews. See Enclosures 20-21.

v. DISA. On 18 March 2011, the prosecution submitted a written request
to DISA for a classi?cation review of evidence it intended to use. See Enclosures
20-21.

vi. CYBERCOM. On 18 March 2011, the prosecution submitted a
written request to CYBERCOM for a classi?cation review of evidence it intended
to use. See Enclosures 20-21.

vii. ODNI. On 18 March 2011, the prosecution submitted a written
request to ODNI for a classi?cation review of evidence it intended to use. See
Enclosures 20-21.

On 18 March 2011, the prosecution submitted a written

request to for a classi?cation review of evidence it intended to use. See
Enclosures 20-21.

ix. DOD. On 30 November 2010, the prosecution submitted a written
request to DOD for a classi?cation review of evidence it intended to use. See
Enclosures 20-21.

x. INSCOM. On 18 March 2011, the prosecution submitted a written
request to INSCOM for a classi?cation review of evidence it intended to use. See
Enclosures 20-21.

13. With the exception of DOD, the Government apparently submitted written requests for
classi?cation reviews to all the OCAs on 18 March 2011.3 The Government never once answers
the million dollar question: Why did the Government wait 295 days before submitting requests
to the OCAS to review the charged documents? 295 days. That, in itself, would violate PFC
Manning?s speedy trial rights more than two times over.

3 It had apparently dra?ed classi?cation review requests as early as August 2010. See Chronology (?20-Aug-10 Fri
Drafted the Department of State Classi?cation Review request?). The Govemment provides no explanation for why
it did not submit this request until seven months later.



14. Strangely, the Convening Authority began excluding periods from the speedy trial clock
based on ?Original Classi?cation Authorities? (OCA) reviews of Classi?ed Information?
beginning on 12 July 2010.4 How could the Convening Authority have excluded time from the
speedy trial clock based on a request that did not yet happen? In other words, it was not until 18
March 2011 that the Government requested the majority of the OCAs to complete a classi?cation
review. How could the classi?cation review then have been a basis for delay from 12 July 2010
to 18 March 2011? Not surprisingly, the Government provides no explanation for the glaring
inconsistency in dates. Surely if the Convening Authority approved delays on the basis of
something that was not happening, this action would constitute an abuse of discretion.

15. The Defense is not convinced that the OCAs began the classi?cation review process on 18
March 2011, when the Government submitted its formal requests. The Defense believes that the
Government focuses on this date because it appears that less time elapsed between the
submission of the request for the classi?cation review and completion of the review. That is, 8
months to complete a classi?cation review yielding a 3-page document looks a little better than
18 months to complete a classi?cation review yielding a 3-page document. The Govemrnent?s
Chronology and Enclosure 20 seem to show that the OCA classi?cation reviews were happening
earlier than 18 March 2011. For instance, the memorandum to the various OCAs on 18 March
2011 asks the OCAs to ??nalize? their classi?cation review, not to ?start? their classi?cation
review (see, e. Enclosure 20, Memoranda to Department of State, ODNI, SOUTHCOM, etc.
dated 18 March 2011). It is clear from the term ??nalize? combined with the suspense dates on
these memoranda that the OCAs had nearly completed (or should have nearly completed) the
classi?cation reviews on 18 March 2011. And yet, the OCAs did not complete their reviews of
the classi?ed evidence until shortly before the Article 32 hearing in December 2011. In
particular, according to the Government?s Response, the Defense received the OCA
classi?cation reviews on the following dates:

CENTCOM: 8 November 2011
8 November 2011
DOS: 8 November 2011
SOUTHCOM: 17 November 2011
CYBERCOM: 8 November 201 15
ODNI: 12 January 2012

Id. at p. 24-25. The Government does not provide information on when it received and provided
the DOD classi?cation review to the Defense. However, according to the Defense?s records, the
DOD classi?cation review was provided to the Defense in mid-November 2011.

4 In the Excludable Delay Memoranda, the Convening Authority lists ?Defense Request for Results of
Government?s Classi?cation Reviews by OCAs, dated 26 August 2010." The Defense request cannot be used as the
basis for delay because it is derivative of requirements already borne by the Government. For instance, if the
Defense requested Brady material, this could not serve as the basis for delay since the Government already bears the
obligation to provide Braay material. This ?basis? for delay is an attempt to make it look like the delay is equally
attributable to the Government and the Defense which it is most certainly not.

5 The Government had this review in its possession since 28 July 201 and yet did not disclose it to the Defense
until some three and a half months later.

32167

16. Based on the 18 March 2011 request, it took the OCAs approximately 235 days to complete
the classi?cation reviews. However, it is clear that the classi?cation reviews were near
completion on 18 March 2011 (based on Enclosure 20 which asked the OCAS to ?finalize? their
reviews). In reality, then, it took the OCAs far longer than 235 days to complete their reviews.

17. For argument?s sake, when the 235 days from 18 March 2011 to 8 November 201 1 are
combined with the 295 days that elapsed prior to the OCAS being formally requested to complete
the reviews, this amounts to a grand total of 530 days. In other words, it was not until 530 days
into this case that the majority of OCAS had completed their classi?cation reviews. This

excludes the classi?cation review that was provided to the Defense on 12 January 2012, which
apparently took 594 days to produce to the Defense. As argued in the Defense Motion to
Dismiss for Lack of Speedy Trial, these classi?cation reviews were not Tolstoy novels they
were generally documents that spanned three or four pages. Under no stretch of the imagination
can a 530 day lag in completing a three or four page classi?cation review be characterized as
reasonably diligent.

18. While the Government apparently followed-up with the OCAs to ?re-request? that the OCAs
complete their classi?cation reviews, no one asked the OCAs what was taking so long. A ?re-
request? is not the same thing as following up with the OCAs to ?gure out what was taking so
long and to expedite the process. See Government Response, Enclosure 20 (?The prosecution in
the above-referenced case requests that the appropriate authority comglete their classi?cation
reviews of the documents listed on the prosecution?s original written request, dated 18 March
2012). Moreover, these re-requests were cut-and-paste jobs of the original request, showingjust
how seriously the Government was taking its responsibilities and those of the OCAs. If a task is
not getting completed, it makes little sense to copy-and-paste the original request three times and
send it to the same recipient. Perhaps an email with four words (?What?s taking so long??)
would have been more effective.

19. There is no documentation from either the Trial Counsel or the Convening Authority
inquiring as to what the OCAS were doing and what was taking so long. Both the Government
and the Convening Authority preferred to let bureaucratic nature take its course and allow the
OCAS a total of 530 days to complete their tasks. That the Convening Authority failed to ever
make even the most basic inquiries as to the length of time the classi?cation review process was
taking demonstrates that he was just a rubber stamp for the Government. He was prepared to let
the OCAs take as long as they wanted without asking any questions. Unlike the Convening
Authority, however, the speedy trial clock does not wait for the OCAs.

20. The Government?s own documentation shows just how unreasonably long the OCA
classi?cation review process was taking. In the Govemment?s July 2011 re-request for the
OCAs to complete their classi?cation reviews, the Government gives the OCAS a three-week or
so suspense period. See Government Response, Enclosure 20. Instead, it was not until
approximately 5 months after prodding the OCAS that the classi?cation reviews were ready to
give to the Defense. The Government, in its communication with the OCAS in July 2011,
indicates that time was of the essence in completing the classi?cation reviews, noting that ?all

existing and future delays could severely hinder the prosecution.? Id. In full, the Government
stated:

32168

SPEEDY TRIAL. Under Article 10, UCMJ, when an accused is in pretrial
con?nement, the United States is required to use ?reasonable diligence? to
continue forward motion on resolving criminal cases. See 10 U.S.C. ?810. The
only remedy for a speedy trial violation is dismissal of the charges with prejudice.
Additionally, the United States must ensure that? it does not violate the accused?s
Sixth Amendment right to a speedy trial. See Barker v. Wingo, 407 U.S. 414
(1972). All existing and future delays by your organization could severely hinder
the prosecution. Enclosed is an information paper to further explain an accused?s
speedy trial rights in the military justice system.

21. Now is the time that the all the delays caused by the OCAs should ?seriously hinder the
prosecution? as predicted by the Government almost a year and a half ago. The Government
should not be permitted to talk out of both sides of its mouth to claim to the OCAs that the
failure of the OCAs to complete their task in a timely manner could ?severely hinder the
prosecution? for speedy trial purposes, and then claim that the failure of the OCAs to complete
their task in a timely manner was, in effect, no big deal.

22. If the Government had approached the OCAs earlier and if the OCAs had actually
completed what was asked of them in a timely manner, this case could have gone to trial much
sooner than nearly three years after PFC Manning was placed in pretrial restraint. Assume the
entire process took half the time that it actually did (approximately 265 days into the case
which the Defense submits would still be patently unreasonable). All other things being equal,
including the innumerable discovery missteps of the Government, the case would then have been
pushed up 265 days and PFC Manning would have been tried in May 2012 (not February 2013).
It is abundantly clear that if the OCAs and the Government had exercised even a sliver of
diligence in getting the classification reviews processed, the accused would have been brought to
trial much sooner.

d) The Government Relies on Cut-and-Paste Conclusory Language in its Response to
Justify the Inordinate Delay for the Classification Reviews But Never Explains Why
They Took 530 Days to Complete

23. In Part of the Government?s Response, it makes a cursory attempt to argue that the
Convening Authority did not abuse his discretion in approving all the delays, which total a
staggering 532 days.6 The Government parrots the exact same language over and over in this
section, stating: ?[The Convening Authority] had good cause to exclude this period of delay and
did so for only so long as was necessary under the circumstances.? See Government Response
(repeating this phrase a total of 18 times). Simply saying that the Convening Authority excluded
the delay ?for only so long as was necessary? does not make it so.

6 The Defense concedes, as argued in its Motion to Dismiss for Lack of a Speedy Trial, that some of these
exclusions were proper based on Defense requests. However, for the purposes of PFC Manning?s Article 10
argument, it is clear that notwithstanding the Defense-requested delay for the 706 Board, the Government would not
have been prepared to go to trial any sooner than it currently is, February 2013.

8

32169

24. The Government never explains why 530 days were necessary to complete the classi?cation
reviews. Just because a case is complex does not mean that the Government gets carte-blanche
to take 530 days to complete a two-page classi?cation review. In other words, the Government
fails to provide the causal link between the actual delay (530 days) and the task at hand. See
United States v. Longhofer, 29 M.J. 22, 27 (C.M.A.1989) we focus on the reasonableness of
the duration of the event.?; ?there must be a causal connection between the event and the delay
sought to be excluded?). See also United States v. Duncan, 34 M.J. 1232, 1243 (A.C.M.R. 1992)
(?We reject out of hand several bases for exclusion asserted pursuant to the ?good cause?
exception at trial. These include arguments premised upon (1) the complex nature of the case, (2)
the fact that the case was highly classi?ed, and (3) the fact that the appellant initiated a collateral
civil suit in federal district court. While any one or a combination of these factors might have
warranted the exclusion of a reasonable period of delay for good cause, a causal connection or
nexus between the delay and the event offered in justi?cation for exclusion must be established
before the government is entitled to an exclusion for good Under the Govemment?s
logic, if it took the OCAs 1000 days to complete the classi?cation reviews, this would be ?only
so long as was necessary under the circumstances.? The length of time a task took cannot then
be bootstrapped to conclude that the time took was reasonable under the circumstances.

25. What the inquiry must entail and what the Government has yet to explain despite being
asked this question dozens of times is why it took 530 days after PFC Manning was placed in
pretrial restraint for the OCAs to complete their classi?cation reviews. ?It?s complex? simply
does not cut it. There is no evidence that the Government ever conveyed to the Convening
Authority what was taking so long (in particular given that the reviews were only a couple of
pages), what the OCAs were doing on a daily or weekly basis, how many people were working
on the task, how often the OCAs or their delegates worked on the review, and the like. These are
the factors that any independent arbiter would want to know in assessing whether the length of
the classi?cation review process was reasonable. To the Defense, it appears wholly
unreasonable that it would take a mind-boggling 530 days from the date of PFC Marming?s
placement into pretrial restraint to complete classi?cation reviews. 530 days spent ?languishing
in a brig? is a very long time. See United States v. Kossman, 38 M.J. 258, 261 (C.M.A. 1993)
(?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?). The Convening Authority never
asked these questions and the Government (then and now) has not provided any answers.

26. The Government misrepresents the Defense?s argument by stating that ?the defense argues
that the decision granting the delay must include justi?cation to the defense?s satisfaction, which
is more than the rule requires and a standard too nebulous to meet.? See Government Response
(repeating this argument 11 times). The Defense made no such argument. The Defense did,
however, say that the Convening Authority?s decision must be informed and independent so as to
not constitute an abuse of discretion. By literally cutting-and-pasting the same bases for delay
for well over a year, with no evidence that he was actually informed of any details pertaining to
what kept ?necessitating? the delay, the Convening Authority shows that he abdicated his
responsibilities as a third-party neutral. Instead, the Convening Authority became an agent of the
Government, who simply signed what was put in front of him (and in one case, allowed the

32170

Government to sign for him). The Convening Authority must be more than a Government rubber
stamp; here, he was not. Any reasonable person and certainly, any reasonable Convening
Authority would at the very least inquire as to why the delay was taking so long and what
could be done to expedite the process.

e) The Cases Cited By the Government For the ?Reasonableness? of the 530 Dav
Classi?cation Review Delay are Not On Point

27. The Government cites various cases as supporting its argument that the complexity in the
case justi?ed the Convening Authority excluding massive amounts of time from the speedy trial
clock. None of the cases cited by the Government come anywhere close to the length of time
that elapsed in this case, or was excluded in this case. The Government cited United States v.
Longhofer, 29 M.J. 22 (C.M.A.1989) a total of 16 times to support its argument that the
complexity of this case justi?es the inordinate delay.7 In Langhofer, the Government argued,
and the Court accepted, that ?[t]his case involves highly classi?ed information. All trial
participants were required to receive a compartmentalized security clearance, and every step of
this case has been complicated by the need to safeguard classi?ed information.? Id. at 29. In
short, Longhofer was a complicated classi?ed evidence case, much like the instant case. In that
case, the ?elapsed time from noti?cation of the charges to presentation of evidence was 322
days,? much less than the nearly 1000 days that have elapsed in this case. While the
Government cites Longhofer apparently in support of its position that the delay in the instant
case was reasonable, the court in Longhofer found that there was a violation of the accused?s
speedy trial rights. Far from supporting the Govemment?s position, Longhofer undercuts it.

28. The Government also raises United States v. Matli, 2003 WL 826023 (A.F.Ct.Crim.App
2003) as supporting its argument that the complexity of this case justi?ed the Convening
Authority?s exclusion of so much time from the speedy trial clock. As the Government notes,
the Court in Matli approved of the Convening Authority?s exclusion of 68 days from the speedy
trial clock. Here, the Convening Authority excluded 532 days from the speedy trial clock,
approximately 8 times as many days as the court in Matli. Moreover, the accused in Matli was
brought to trial after 211 days of being placed in pretrial con?nement. Id. at Here, PFC
Manning will have been in pretrial con?nement for almost 1000 days prior to being brought to
trial, ?ve times longer than the accused in Matli.

29. Other cases cited by the Government, particularly the federal cases, are even less on point.
See e. g. United States v. Kramer, 781 F.2d 1380 (9th Cir. 1986) (no speedy trial violation where
accused?s court-appointed attorney moved for a four-to-?ve month continuance prior to
scheduled trial date); United States v. Beech Nut Nutrition Corp. 871 F.2d 1181, 1197 (2d Cir.
1989) (defense counsel agreed to waive right to speedy trial and conceded that case was complex
within the meaning of Speedy Trial Act); United States v. McGrath, 613 F.2d 361 (2d Cir. 1979)
(excluding a mere 60 days from speedy trial clock due to complexity). Moreover, the "Speedy

7 Longhofer is no longer good law on one point. It ?applied [an older] version of R.C.M. 707(c), and focused on
allocating blame for delays.? U.S. v. Nichols, 42 M.J. 715, 721-22 (A.F.Ct.Crim.App. 1995).

10

32171

Trial Act does not govern this case; R.C.M. 707 does.8 In terms of the constitutional right to a
speedy trial, military courts have indicated that the protections afforded an accused in the
military justice system exceed those protections offered by the constitution. United States v.
Cooper, 58 M.J. 54, 60 (C.A.A.F. 2003) (?Article 10 protects the right to a speedy trial, and
imposes a more stringent standard than the Sixth Amendment?). See also Government
Response, p. 62. Thus, it is not clear why the Government is resorting to federal cases
particularly when such federal cases provide no support for its position.

2. LTC Almanza Abused His Discretion in Excluding Time He Did Not Work on This
Case From the Speedy Trial Clock

30. As argued in the Defense?s Motion to Dismiss All Charges for Lack of a Speedy Trial, LTC
Almanza abused his discretion in excluding days that he did not work on the case. There is no
authority for excluding federal holidays, weekends and days that an Investigating Of?cer did not
work on the case from the speedy trial clock. Under this logic, every weekend and holiday
between 27 May 2010 through 23 February 2011 should have been excluded (approximately 60
days). See United States v. Duncan, 34 M.J. 1232 (A.C.M.R. 1992) (attributing weekends to the
Government for speedy trial purposes; note that Duncan was decided under the previous rule,
which required that the Military Judge attribute delay to either the Defense or the Government).

31. The Government also claims that LTC Almanza?s civilian employer required him to work
between 24 December 2011 and 3 January 2012. Be that as it may, the Government chose to
have a Reserve civilian Investigating Of?cer presiding over the Article 32 hearing. The
Government chose to let the orders expire on 23 December 2010 and to renew the orders
(apparently) on 4 January 2011. The Government?s own decisions as to how to process this case
and in particular, how to mobilize a reserve IO are attributable to the Government and cannot
be excluded from the speedy trial clock.

32. Finally, the Government seems to think that the test under R.C.M. 707 for excludable delay
is prejudice; it is not. The test is whether or not the time is properly excluded, irrespective of
prejudice. The Government is mixing up R.C.M. 707 with PFC Manning?s Article 10 rights
(where prejudice is one of several factors to consider).

3. The 706 Board Was Not Completed In a Reasonably Diligent Manner

33. The Government argues that the 285 days it took to complete the R.C.M. 706 board was a
reasonable amount of time. The Government, in making its argument, conveniently leaves out
facts that would undercut its position.

34. The Government points to the fact that even before the Defense submitted its request for a
R.C.M. 706 board, LTC Maureen Kohn, the Deputy Staff Judge Advocate for the 1? Armored
Division, took steps to start the process in Iraq. While it is true that LTC Kohn took some

3 The Government cites United States v. Cooper, 58 M.J. at 57 at Response, p. 53 for the proposition that the Court
of Appeals for the Armed Forces has ?cited [the Speedy Trial Act] for guidance concerning military speedy trial
issues.? This citation does not appear in Cooper.

11



preliminary steps in anticipation of the need for an RCM 706 and some immediate steps after the
Defense?s initial request for a R.C.M. 706 on 11 July 2010, the proactive nature of the
Government stopped once LTC Kohn was no longer involved. After jurisdiction of the court-
martial was transferred to the Military District of Washington on 28 July 2010, the wheels of
diligence started to grind to a halt. Despite having a R.C.M. 706 request from the Defense, the
Government took no immediate action to implement the request.

35. The Government asserts that the Defense?s ?rst argument that the prosecution ?did nothing?
between the above dates could not be further from the truth. How so? The reality is that the
Government did nothing. Did the Government appoint board members? Did the Government
start the process of the R.C.M. 706 board? No it did not. Instead, it wants to be patted on the
back for appointing the board on 3 August 2010 and by having an email exchange with the
defense counsel on 5 and 9 August 2010. Appointing a board and then emailing the Defense
twice does not show diligence. The Government was at a standstill from 3 August to 25 August
2010. During that time, the Government could have appointed members, secured the relevant
information for the board, and scheduled convenient times for the board members to meet with
PFC Manning. None of this was done.

36. On 25 August 2010, PFC Manning retained Mr. David Coombs as his civilian counsel. At
this point, Mr. Coombs raised a couple of issues that did necessitate the delay of the start of
R.C.M. 706 board. Mr. Coombs requested a forensic to be appointed to the Defense
team and for this individual to be permitted to evaluate and work with PFC Manning prior to the
R.C.M. 706 board. See Government Response, Enclosure 35. Additionally, on 26 August 2010,
the Defense requested a delay of the board ?until procedures can be adopted to safeguard any
classi?ed information that will be discussed during the board?s determination.? See Government
Response, p. 16.9

37. The Defense request for a preliminary classi?cation review (PCR) necessitated the delay of
the board from 26 August 2010 until 13 December 2010. The Defense does not challenge the
Convening Authority?s exclusion of that time under R.C.M. 707(c). However, that time is still
attributable to the Government under Article 10. 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 United States v. Lazauskas, 62 M.J. 39, 42 (C.A.A.F. 2005) (?The resolution under R.C.M.
707 does not preclude a party from asserting responsibility for delay under Article 10, UCMJ, or
the Constitution?); United States v. Mizgala, 61 M.J. 122, 128-29 (C.A.A.F. 2005) (?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
that the Government moved to trial with reasonable diligence as required by Article While

9 The Government appears in its Response to subscribe some fault to the Defense for previously stating that PFC
Manning would not disclose classi?ed information as part of the R.C.M. 706 board. See Government Response,
p.16. The Government cites Enclosure 1 (Unclassi?ed Email 0016) for its position. The email by MAJ Hurley,
while stating that PFC Manning should not need to divulge classi?ed information, indicate that if PFC Manning
?feels he must disclose classi?ed information, then he will let you know that there is more that he wants to say but
cannot. CPT Fein and I will then seek an exception to the current order.? Id.

12



the Defense?s security experts were conducting the PCR, the Government stood in a ?waiting
posture.?

38. Once the Defense security experts completed the PCR on 13 December 2010, the
Government was not prepared to do anything. On 18 December 2010, the Defense asked the
Government who, other than Dr. Sweda, was on the R.C.M. 706 board. Incredibly, the
Government could not answer this simple question. As of 18 December 2010, 138 days after
COL Coffman directed the appointment of a R.C.M. 706 board, the Government was still in a
waiting posture. The Government promised that it would identify the board members that very
week. Id. The Govemment?s initial chronology indicates that the Government failed to do this
and took the next two months to not only identify the board members but secure the requisite
clearances for the board members. Why couldn?t the Government have been proactive and
completed this task during the time period between 3 August 2010, the date COL Coffman
directed the board, and 13 December 2010, the date the PCR was completed?

39. Once it became clear to the Defense that nothing was being done, on 13 January 2011, the
Defense emailed the Government and ?led its demand for a speedy trial, along with its demand
to remove PFC Manning from pretrial con?nement. See Attachment 1. Despite ?ling this
demand it took the Government another 100 days to complete the R.C.M. 706 Board.

40. A key fact for the Court to consider is that it only required the board to meet with PFC
Marming on one occasion, 9 April 2011, in order to be able to complete its review. Once the
board was able to meet with PFC Manning, the board completed the report 13 days later on 22
April 2011. The Government tries to avoid responsibility for the delay in completion of the
R.C.M. 706 board by pointing to the security concerns of conducting the board on weekdays, the
Defense?s request that the board ?take the time necessary to conduct a thorough and complete
examination?, and the Defense requesting to meet with PFC Marming prior to the board?s
interview of PFC Marming. All three are without merit and will be discussed in tum.

41. First, the Government, as it has done with other aspects of this case"), mmecessarily chose to
complicate the R.C.M. 706 process. Instead of allowing the board to meet whenever it chose to,
the Government established the unnecessary requirement that the board would only meet on
weekends. Due to the self-imposed requirement that the board conduct its interview of PFC
Marming on the weekends, the board was not able to complete its work in a timely manner, and
was required to request two separate extensions. Both extensions of time should be placed at the
Government?s doorstep for R.C.M. 707 and Article 10 purposes.

42. Second, the Government reads the Defense?s 7 February 2011 email as giving the green light
for the board to take all the time that it wanted regardless of the reason for the amount of time.
The Govemment?s reading on the Defense?s email is an inaccurate one. The Defense?s email to
Dr. Sweda stated the following:

Additionally, although the convening authority has given a four week suspense
date for completion of the board, the defense views this suspense as aspirational.

?o The Government, as the Court has previously noted, has placed other time consuming requirements on itself
without a need to do so. The Government sought to amend the Court?s Protective Order due to its self-imposed
requirement to run all Defense motions, even administrative or purely legal motions, by the 0CAs prior to indicating
whether it objected to publication of the motion.

13





32174

Clearly, you and the board should feel free to take the time necessary to conduct a
thorough and complete examination of PFC Marming. If the board requires an
extension of time, you should feel free to submit such a request through the trial
counsel. Undoubtedly, any request for an extension of time by the board would
be granted. In the end, the most important thing is that the board takes the time it
needs to in order to feel comfortable with its results.

43. Far from waiving any concerns about the time it would take to complete the board, the
Defense?s email simply stated that Dr. Sweda should take time necessary to complete a thorough
medical review. In this instance, the board was hamstrung by the Govemment?s requirements to
interview the accused on the weekends. The board did not need an extension of time to conduct
additional tests or additional interviews. Such a request would be reasonable and consistent with
the Defense saying ?take the time necessary to conduct a thorough and complete examination of
PFC Manning.?

44. Lastly, the Govemment?s characterization of the facts surrounding the Defense?s request to
meet with PFC Manning prior to the R.C.M. 706 board is patently false. The Government claims
the delay was necessary in order for Defense counsel to save money on ?ights. The Government
cites to Enclosure 1, email [84] and [85] to support its position that ?although the prosecution
arranged to have the accused ready to meet with the defense in a SCIF on 11 and 12 March 2011,
on 7 March 2011 the defense counsel requested the prosecution to have a SCIF ready on 25 and
26 March 2011 in order to save money on ?ights.? See Government Response, p. 66. Neither
email cited by the Government supports its position.

45. Instead, the truth is that the delay was necessitated by the Government providing late notice
to the Defense of meeting dates. On 15 February 2011, the Defense requested to meet with PFC
Marming to ensure that he understood what he could discuss with the board. The nature of the
discussion with PFC Marming required the meeting to take place in a SCIF. The Defense offered
to meet with PFC Marming on 24 February 2011, well in advance of the board?s plans to meet
with PFC Marming to discuss classi?ed information. The Government, however, could not
arrange for that meeting because it was having trouble determining an appropriate location. The
Defense requested updates and noti?ed the Government that it could meet with PFC Marming at
any time as long as it had some advance notice. On 7 March 2011, nearly a month after the
original request, the Government noti?ed the Defense that it could arrange for the Defense to
meet with PFC Manning a mere four days later, on 11 and 12 March 2011. Due to the late
notice, the Defense noti?ed the Government that the price of a ?ight went from $270.00 with a
week?s notice to $1,300.00 with less than a week?s notice. As such, the Defense asked if the
Government could arrange for a time that gave the Defense some more reasonable advance
notice. The Government responded, ?The arrangements were ?nalized this moming,
immediately before your email. We needed to wait until this morning to ?nalize the
coordination with the different entities. All the systems are in place for this Friday and Saturday,
if you want to go then, but we understand minimizing cost is a factor for you.? See Attachment
2. Had the Government simply acted on the Defense?s request and provided some reasonable
advance notice, this would not have been an issue.

B. Pre and Post Referral Discovery Delay

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46. As the Defense argued in its Motion to Dismiss for Lack of a Speedy Trial, this case has
been marred by a wholly negligent prosecution. Many of the issues discussed in the Motion to
Dismiss for Lack of a Speedy Trial (and discussed below) have arisen in other contexts. The
Government would prefer to let this all be ?water under the bridge? and for the Court to pretend
that the Government did not commit some monumental errors in processing this case. For
instance, the Government continues to pretend that it understood Brady all long. See
Government Response at p. 18 (?The prosecution has always interpreted Brady to apply to the
merits and sentencing. From the onset of this case, the prosecution has not waivered from that
Apparently, the Government has had a bout of amnesia. The Court found that the
Government did not understand Brady. In Appellate Exhibit the Court ruled:

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
disputed that it was obligated to disclose classi?ed Brady information that was
material to punishment only.

Id. at 2 (emphasis supplied). Not only did the Court ?nd that the Government did not understand
that Brady applied to sentencing, but the Court also found 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.? Id. The Court stated, as plain as day, ?this was an incorrect belief.?
Id. The fact that the Government is trying to re-write history, and trying to convince the Court
that the Court did not say what it very clearly said, is beyond belief. If the Government wishes
to re-litigate this ?nding, it must request reconsideration of the Court?s Ruling. Otherwise, the
Government is estopped from making arguments to the contrary.

47. Much as the Government wishes it were otherwise, the Govemment?s gross negligence in
military discovery counts against the Government for speedy trial purposes. A prosecution that
does not understand basic and fundamental discovery rules cannot be characterized as a
reasonably diligent prosecution. It is against this wholly erroneous and convoluted view of
discovery that the Government further compounded its negligence by deliberately dragging its
feet and providing as little to the Defense as possible, as late as possible. In so doing, the
Government resorted to a series of active misrepresentations, critical omissions, and half-truths.
The Government?s behavior is nothing short of shameful.

48. Below, the Defense focuses on some of the extreme foot-dragging that occurred in this case.
As argued previously, the Defense does not believe this was simply an inept prosecution. The
Defense believes that this inept prosecution was part of a bigger design to impede PFC
Marming?s right to a fair trial and to make an example out of him. There are simply too many
questionable things that occurred in this case to ignore. These are chronicled in detail in the
Defense?s Motion to Dismiss All Charges for Lack of a Speedy Trial. Below, however, the
Defense speci?cally addresses the dates and facts presented by the Government in its Response
and its Chronology.

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1. The Government Did Not Exercise Reasonable Diligence With Respect to ONCIX

a) The Government Concocted An Elaborate Series of Misrepresentations, Omissions, and
Half-Truths to Hide Its Lack of Diligence with Respect to the ONCIX Damage
Assessment

49. The Govemment?s Response con?rms de?nitively that the Government made an af?rmative
misrepresentation to the Court and the Defense about what it knew and when with respect to the
ONCIX damage assessment. As the Court will recall, the Government represented to the Court
that has not produced any interim or ?nal damage assessment in this matter.? Full stop.
It claims to have repeated this ?verbatim? from what it was told by See
Government Response, p. 29 (?the prosecution relied on the information provided by ODNI
and used the ODNI response, verbatim, to address the Court?s inquiries?). The Government
fails to acknowledge that its ?verbatim? statement represents only a quarter of the message from
which reads in full:

To date, ONCIX has not produced any interim or ?nal damage assessment in this
matter. is tasked with preparing a damage assessment. However, that
draft damage assessment is currently a draft and is incomplete and continues to
change as information is compiled and analyzed. Damage assessments can take
months or even years to complete, and given the sheer volume of disclosures in
this case we do not know when a draft product will be ready for coordination,
must less dissemination.

See Government Response, p. 29 (emphasis supplied). The Government told the Court a
deliberate half-truth designed to convey a false impression that ONCIX did not have anything
by way of damage assessment as of March 2012. That way, the Government could avoid
disclosing even the very existence of the damage assessment to the Defense.

50. Based on the Govemment?s Response, it is clear that as of February 2011, the Government
knew that ONCIX was charged with creating a damage assessment. See Government Response,
p. 27. Moreover, on 22 September 2011, the Government was informed that ONCIX had a
damage assessment that was ?in working draft form.? Id. p. 28. On 6 March 2012, ONCIX
informed the Government that its ?draft damage assessment is currently a draft.? Id. at p. 29.
These two statements regarding the ONCIX ?draft,? lifted directly from the Govemment?s
Response, show that the Government had actual knowledge as of 22 September 2011 that
ONCIX had a ?draft? damage assessment.

51. And yet, MAJ Fein plainly told a falsehood to the Court in oral argument when asked why
he did not disclose the existence of the draft damage assessment to the Court when asked about it
in the series of 21 March 2012 questions. MAJ Fein stated:

?we were unaware [when the Court asked its questions] that had any
other documentation created that would even qualify as a draft.?

Article 39(a) Audio Recording 6 June 2012 (emphases supplied). This was an outright
misrepresentation. By the Govemment?s own admission, MAJ Fein knew on 22 September 2011
that ONCIX had a ?working draft.? How could he, as an officer of the Court, represent that the

16

32177

Government was ?unaware that had any other documentation created that would even
qualify as a draft?? Id.

52. Lest MAJ Fein claim that he misspoke in this respect, he repeated this refrain multiple times
during oral argument, claiming twice that the Government had ?no clue? that ONCIX had a draft
damage assessment as of 21 March 2012 when the Court asked its questions:

MAJ Fein: Your Honor, to be honest, the Government does not necessarily know.
We asked the questions and this is what we are given and what we relayed to the
Court. To us, there is a difference between a draft and an interim. A draft is an
ongoing document. An interim is something that is produced as a snapshot in
time, to memorialize the information. So we did have discussions with both
entities on what the differences could beasked ?do
you have any documentation or do you have a damage assessment, and if not,
what do you have?? And these were the responses that we were given and that we
relayed to the Court. So again, we have never maintained that we didn?t know
they were doing one. In fact, I think it was publicly announced, and the Defense
has noti?ed the Court in one of the very ?rst ?lings that it was publicly
armounced that they were doing one, but the extent of what they did the

prosecution had no clue, we had to rely on what they were told, or what we were
told.

MAJ Fein: So, so the Government's position isn?t that we didn?t know that
they weren?t in the process of creating a damage assessment, but we were
unaware that they had any other documentation created that would even quali?z
as a draft. Once we received the Court?s Order on 11 May, we had them relook
and reassess and that is when we started this process.

MAJ Fein: the prosecution had no clue, we had to rely on what they were told,
or what we were told. And then we remedied it the moment we realized that,
that, we attempted to remedy it once we realized, and asked them to reassess their
position based off the Court?s Order of 11 May. But they had to come back to us
to say ?yes, what we read actually means we have something like that. Not what
necessarily we told you before.? Of course, everything changes as time goes on.
So, once they told us, we then went through the procedures and we are here.

MAJ Fein: Correct your Honor. It is our belief, at that point, that they were
compiling these other assessments we knew about because we started reaching
out once they told us about it to go get those. But, that they had no other
documentation that would be subject to discovery based off this response.

17

32178

MAJ Fein: And so, going forward your Honor, after that Ruling and then after we
re-litigated the Department of State, then we sent that and said listen, essentially
as we have outlined in our memo to ODNI on behalf of NCIX, and then their
response back. On 11 May the Court ruled even a draft damage assessment from
the Department of State is discoverable in that form. We re-litigated that. Does
this, does this information apply to ya-all (sic)? Based o? of what you have
previously told us. And at that point they said we need to have a meeting. We had
the meeting within a week.

Id. The audio recording, in combination with the Government?s dates in its Response, clearly
show the following:

a) The Government knew that ONCIX had a draft damage assessment as of 22 September
2011 and the Government was reminded of that fact on 6 March 2012;

b) The Government misrepresented to the Court whether ONCIX had a damage
assessment by stating has not produced any interim or ?nal damage assessment
in this matter.? This statement was cherry picked from a longer message from
that explained that while ONCIX had not completed an interim or ?nal
report, it did have a draft damage assessment.

c) The Government further misrepresented at oral argument that it had ?no clue? that
ONCIX had a draft damage assessment at the time it made its 22 March 2012
representation to the Court.

53. In short, the Government has tried to cover up its misrepresentations with even more
misrepresentations. It is truly disheartening that the Court and the Defense cannot believe
anything the Government says. These are the basic facts that the Government simply cannot
dispute.

54. Another fact that the Government cannot dispute is that it became aware that ONCIX was
preparing a damage assessment in February 2011. In fact, it claims at that time to have
?requested authority to review the ONCIX damage assessment.? See Government Response, p.
73. Fast-forwarding past all the misrepresentations, it was not until 23 August 2012 that the
Government, after a protracted battle to discover whether ONCIX even had a damage
assessment, disclosed the damage assessment to the Defense. That is a total of 569 days. 569
days. Especially when contrasted with the mere 20 days it took for the Government to review
the ONCIX damage assessment and arrange to have it produced to the Defense, the 569 day
number is unfathomable. Had the Government exhibited even a modicum of diligence with
respect to ONCIX, the Defense would have had this information (and this case could have gone
to trial) much sooner.

55. If these were the only misrepresentations in the Govemment?s account of what happened
with ONCIX, that, in itself, should be grounds for censure. However, there are countless more
misrepresentations to the Court that stem from the pile of misrepresentations discussed above.

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32179

b) MAJ Fein Misrepresented That He Simply Relaved What He Was Told by ONCIX

56. The Court was, not satis?ed with the Govemment?s account of what happened with
ONCIX. The Court asked MAJ Fein about why he made the representation to the Court that he
did in light of his admission in oral argument that he knew ONCIX was charged with completing
a damage assessment. MAJ Fein repeatedly fell back on some variation of, ?that?s what ONCIX
told us, and that?s what we told you.?

MAJ Fein: And then their response of course given was the department of,
ONCIX has not completed a damage assessment - to date they have not produced
any interim or ?nal damage assessment in this matter. That is what they gave us
and told us.

MAJ Fein: And so, by us writing that down, and inquiring is this all you
have, is this what it is? And this is the response we received. That is ultimately
what we fast forward, at the motions hearing, on the record, both at the 802
conference after the motions hearing, and on the email inquiry on 21 March, when
asked. As you will notice from the Court?s motion to compel discovery dated 23
March 2012, the Court documented the email questions and those email questions
were does the damage assessment essentially exist with ODNI, or excuse me with
ONCIX. And we responded in an email ONCIX has not produce any interim or
?nal damage assessments in this matter. We asked them the questions. We don ?t
have any other access to their files. They answered it. So, at that point we
relayed that to the ourt, we relayed it to the Defense and the Court ruled. Then

MAJ Fein: We asked questions, we give them the relevant cases, the case law, we
show them the discovery requests and any other orders. And then they give us the
answer. Or give us access and we go search them for the answer. And in this
case, they gave us the answer. We relayed that to the Court.

MAJ Fein: Yes, your Honor, we did. And we were told that they were compiling
the documents to do a damage assessment. We asked what is the status of the
damage assessment so that we can relay it to the Court and this was the exact
wording we were given.

MAJ Fein: We inquired into what documentation they had, that we could
report on whether they have a draft damage assessment. And they reported back
again, to date ONCIX has not produced any interim or final damage assessment
in this matter, when we asked them the question.

19

32180

MAJ Fein: So we did have discussions with both entities on what the differences
could beasked ?do you have any documentation or
do you have a damage assessment, and if not, what do you have?? And these
were the responses that we were given and that we relayed to the Court.

Article 39(a) Audio Recording 6 June 2012 (emphases supplied). MAJ Fein stated on six
separate occasions that he simply repeated the answers that he was given by ONCIX. What he
failed to state is that he repeated only a portion of the answer that was given by ONCIX the
portion which, in isolation, is misrepresentative of the documentation that ONCIX had in its
possession and that the Government knew ONCIX had in its possession.

57. Moreover, the six separate submissions above convey the impression that MAJ Fein had
absolutely no idea that ONCIX had a draft damage assessment and that he was attempting, to no
avail, to detennine what ONCIX had by way of a damage assessment. As indicated above, MAJ
Fein knew on 22 September 2011 that ONCIX had a ?working draft.? Clearly, these earnest
conversations with ONCIX that MAJ Fein told the Court about, where he tried in vain to ?gure
out what ONCIX had in tenns of a damage assessment, did not take place. Again, more
misrepresentations to cover up the original misrepresentations.

c) MAJ Fein Misrepresented that Communication Was Oral

58. The Court, in attempting to ?gure out what happened with ONCIX, asked MAJ Fein a
pointed question how did ONCIX make the representation to you that they had not produced
any ?nal or interim damage assessments in this matter?

59. The dialogue between the Court and MAJ Fein reads:

MAJ Fein: And then their response of course given was the department of,
ONCIX has not completed a damage assessment to date they have not produced
any interim or ?nal damage assessment in this matter. That is what they gave us
and told us.

COURT: Did they do that orally or in writing?

MAJ Fein: Orally your Honor. And so, by us writing that down, and inquiring is
this all you have, is this what it is? And this is the response we received. That is
ultimately what we fast forward, at the motions hearing, on the record, both at
the 802 conference after the motions hearing.

Id. In its Response, the Government states that on 6 March 2012, the prosecution received a
response from ODNI on behalf of ONCIX with the statement, inter alia, has not
produced any interim or ?nal damage assessment in this matter.? Government Response, p. 29.
The Response shows that the communication from ONCIX was written, not oral, as MAJ Fein
claimed.

20

32181

60. MAJ Fein will undoubtedly claim that he forgot that the communication was written. Any
such claim, however, should be viewed with suspicion. MAJ Fein appeared to recall the
conversation (that didn?t happen) with ONCIX with remarkable clarity. He stated that the
communication was oral and that the Government ?[wrote] that down, and inquir[ed] ?is this all
you have, is this what it Id.

61. The reason that MAJ Fein stated the communication was oral is obvious: because that way,
no one would be able to prove it didn?t happen. He did not count on the fact that there would
ultimately be a day of reckoning for the multitude of misrepresentations, half-truths and
omissions.

d) MAJ Fein?s Misrepresented That the Government Double-Checked with ONCIX After
Receiving the Court?s Questions

62. At oral argument, MAJ Fein stated that after the Court sent the email questions on 21 March
2012, it reached out to ONCIX again on this issue prior to responding on 22 March 2012:

MAJ Fein: Yes, your Honor. And the prosecution did exactly that, your Honor.
Even after the email from the Court, the prosecution reached out to ODNI and
NCIX to ask the question again and this was the response we received.

Id

63. The Government?s Response does not refer to this communication with on
21 or 22 March 2012. Nor does the Government?s 230 page Chronology." Again, the

All the Govemment?s entries for 21-22 March 2012 are reproduced below:

21-Mar-12 Wed Email with DOS-request to disclose IRTF assessment of DOS equities

21-Mar-12 Wed Email with OGAI-prosecution sent copy of other Agencies? information for review and consent to
disclose

21-Mar-12 Wed leave (Wife Surgery)

21-Mar-12 Wed Motions practice to include research and drafting

21-Mar-12 Wed Phone call with DOJ

21-Mar-12 Wed Phone call with DOS for discovery meeting concerning damage assessment and prudential search
request

21-Mar-12 Wed UCMJ Commissions research

21-Mar-12 Wed Worked on Speedy Trial Tracker

22-Mar-12 Thu Email from VA with response to request

22-Mar-12 Thu Email with BBG to request update on research for discoverable material

22-Mar-12 Thu Email with DA-discussed obtaining defense access to NWC

22-Mar-12 Thu Email with BI-prosecution sent other Agency's information for review by FBI in order to produce
in discovery

22-Mar-12 Thu Email with NASA received portion of damage assessment via email

22-Mar-12 Thu Email with OGA2-requested review for OGA2 equities

22-Mar-12 Thu Email with VA-received damage assessment

22-Mar-12 Thu Evidence research

22-Mar-12 Thu From BBG OGC- Stated they are still trying to track down their copy of the assessment
22-Mar-12 Thu From NRC- States that OGC point of contact was out of the of?ce due to a death in the family and
will be back next week

21



32182

Government appears to have misrepresented to the Court that it had communication with ONCIX
after it received the questions from the Court on 21 March 2012 and prior to responding to the
Court on 22 March 2012.

e) MAJ Fein?s Misrepresented What Happened After the Court?s Ruling on 11 May 2012

64. At oral argument, MAJ Fein stated that it was after the Court?s Ruling on 11 May 2012
regarding the discoverability of the Department of State damage assessment that he felt
compelled to go back to ONCIX to get ONCIX to reassess its position:

MAJ Fein: So, so the Govemment?s position isn?t that we didn?t know that
they weren?t in the process of creating a damage assessment, but we were
unaware that they had any other documentation created that would even qualify as
a draft. Once we received the Court?s Order on 11 May, we had them relook and
reassess and that is when we started this process.

MAJ Fein: the prosecution had no clue, we had to rely on what they were told,
or what we were told. And then we remedied it the moment we realized that,
that, we attempted to remedy it once we realized, and asked them to reassess their
position based off the Court?s Order of 11 May. But they had to come back to us
to say ?yes, what we read actually means we have something like that. Not what
necessarily we told you before.? Of course, everything changes as time goes on.
So, once they told us, we then went through the procedures and we are here.

MAJ Fein: And so, going forward your Honor, after that Ruling and then after we
re-litigated the Department of State, then we sent that and said listen, essentially
as we have outlined in our memo to ODNI on behalf of NCIX, and then their
response back. On 11 May the Court ruled even a draft damage assessment from
the Department of State is discoverable in that form. We re-litigated that. Does
this, does this information apply to ya-all (sic)? Based off of what you have
previously told us. And at that point they said we need to have a meeting. We had
the meeting within a week.

Article 39(a) Audio Recording 6 June 2012 (emphases supplied).

65. Clearly, and in light of the fact that the Government had actual knowledge that ONCIX had
a ?working dra on 22 September 2011 and a ?draft? on 6 March 2012, these conversations did
not take place as MAJ Fein claims they did. The Government did not go back to ONCIX to
inquire as to whether ONCIX had a draft damage assessment. The Government knew that

22-Mar-12 Thu leave (Wife Surgery)
22-Mar-12 Thu Motions practice to include research and drafting
22-Mar-12 Thu Phone call with CCIU

22-Mar-12 Thu Phone call with NSF to inquire about any discoverable material

22



32183

ONCIX had a draft damage assessment. What the Government went back to ONCIX with was
the Court?s ruling that the draft damage assessment (about which it had known for approximately
8 months) was discoverable. MAJ Fein, however, had to continue to tell the elaborate and
fanciful story that he had weaved to the Court, so as to convince the Court: a) that he had not
made any misrepresentations; and b) that the Government had been diligent all along. Nothing
could be further from the truth.

2. The Government Was Not Diligent in Obtaining Damage Assessments from the 63
Agencies

66. The Government concedes that the speedy trial clock began on 27 May 2010 when the
accused was placed under pretrial restraint. The Govemment admits that its ?rst meeting with
ONCIX was not until 2 February 2011, 251 days later. The Government provides no explanation
of why it was not in contact with ONCIX, an apparently closely aligned agency, any earlier.

67. On 18 February 2011, ONCIX informed the Government that it would not be able to turn
over the individual damage assessments it had received from the agencies it had contacted and
that ?approval from the other government organizations was necessary, since many of the
individual assessments were classi?ed.? See Government Response, p. 28. Apparently, after
this communication, the Government tried for over one full year to ?gure out a ?system? to
obtain these very short damage assessments before it had the brilliant idea to ask a paralegal to
track them down. It was not until 27 February 2012, some 374 days after it was informed that
ONCIX could not turn over these damage assessments that the Government, in a moment of
sheer genius, ?gured out how to obtain them. The paralegal then tracked down these damage
assessments in approximately one month.

68. It is clear that if the Government had exercised even a modicum of diligence, these damage
assessments could have been provided to the Defense in March or April of 2011, not over one
year later. The Government can point to no justi?cation other than its own ineptitude to
explain the ridiculous time lag in obtaining these very short damage assessments from individual
agencies. The only ?explanation? for such a time lag is that the damage assessments revealed
that little to no damage was done to any agency of the U.S. Government and, of course, the
Government has not been in any hurry to turn over any of that sort of information to the Defense.

69. The above dates are taken directly from the Government?s motion and are the key dates in
assessing the Government?s lack of diligence from a big-picture perspective. However, as with
most of the Government?s submissions, things simply do not add up with respect to the rest of
the story. The following highlights the various residual inconsistencies and gaps in the
Govemment?s story:

0 Apparently, the Government didn?t receive the contact information for the various
agencies until 14 October 2011, but the Government claims that it attempted to contact
the different organizations on 11 October 2011. Id. at p. 28-29. How could the
Government have contacted these agencies without their contact information? If the
Government did indeed have their contact information, why did it not contact them
earlier?

23

32184

The Government?s meetings and communications with ONCIX were seemingly repeats
of one another. On 18 February 2011, ?the prosecution sought assistance from ONCIX to
retrieve the individual damage assessments of those government organizations from
which ONCIX requested input. ONCIX advised the prosecution that approval from the
other government organizations was necessary, since many of the individual assessments
themselves were classi?ed.? Id. at p. 28. Approximately 5 months later, the Government
and ONCIX had made no progress on this point. On 14 July 2011, noti?ed the
prosecution that it would need authorization from the other government organizations to
retrieve those organizations? individual assessments.? Id. How can it be that after 146
days, absolutely no progress was made on this front and that the Govemment was still at
Square One??

The Government claimed in oral argument that it only found out in February 2012 that it
needed to go to the agencies directly, rather than go through ONCIX to obtain the
damage assessments. This is wholly inconsistent with its new position in its Speedy Trial
motion where it indicates that it knew in 2011 that it had to retrieve the damage
assessments from the individual agencies and that it began the process of retrieving those
damage assessments ?on or about 1 November [2011].? IdJune 2012
motions argument, MAJ Fein stated that it was in February 2012 that he learned he would
have to go to the individual agencies:

MAJ Fein: The NCIX as explained in the Government?s ?ling to
explain the difference between assessments and investigations. The NCIX
is chartered to do a national level, national counterintelligence review a
damage assessment at a national level. That?s what their what the
counter espionage act, excuse me, what the counterintelligence act set up.
We briefed that in our ?ling. That is their charter. They do it government
wide. They receive inputs from different government organizations. What
Mr., excuse me, what the Defense has already referenced and we have
already produced to the Defense are different entities that have submitted
their information to NCIX. We have not reviewed any document that
belongs to NCIX. Period. What we have done is, we have gone to the
originator, the owner of the information that was submitted to NCIX. The
original entities, to request approval to review their material, and If
discoverable, turn it over to the Defense. And that is what the Defense has
been receiving. Speci?cally, the ultimate source your Honor of these
documents is not NCIX. The source of the documents that the Defense is
receiving in discovery are the actual agencies. So as mentioned earlier on
the record today, the Department of Agriculture or the, or any of the
executive departments that the Defense has received, those organizations
independently did their own and submitted those. We have gone to those
agencies for ef?ciency purposes. We have acquired the documents, or
attempting to ?nalize acquiring all of the documents. And then once we
obtain them or review them get approval to turn them over if discoverable
and give them to the Defense immediately once we get that approval.

24

32185

MAJ Fein: Correct your Honor. It is our belief, at that point [February
2012], that they were compiling these other assessments we knew about
because we started reaching out once they told us about it to go get
those. But, that they had no other documentation that would be subject to
discovery based off this response. So, yes we did know that their
individual organizations were submitting theirs, and that is why we went
out to those independent organizations to get them approval and disclose
them.

Article 39(a) Audio Recording 6 June 2012 (emphases supplied). As is clear from the
above passage, MAJ Fein states he became aware that ONCIX had received inputs from
various agencies in February 2012, and it was at that point that the Government began
reaching out to these different agencies. (?we knew about [these other agencies] because
we started reaching out once they told us about it to go get those.?; ?So as mentioned
earlier on the record today, the Department of Agriculture or the, or any of the executive
departments that the Defense has received, those organizations independently did their
own and submitted those?). Id. Indeed, this is con?rmed in an email from SGT Bradley,
a paralegal for the Government, to the EPA. SGT Bradley writes on 27 February 2012:

I am a paralegal for the prosecution team in the Court-Martial of Private
First Class Bradley Manning in connection with ?W#kileaks.? The
purpose of this email is to request a copy of all documents your
organization provided to NCIX approximately one year ago. Although we
have been coordinating with for the past year, just two weeks
ago they determined that we cannot review copies of your organization ?s
documents in their possession, and we must directly go to your
organization to coordinate a review.

See Appellate Exhibit 173.

The Government knew in 2011 that it had to go to the individual agencies directly
(indeed it claimed to have begun the process in November 2011) and yet it represented
to the Court and the Defense in oral argument that it learned in February 2012 that it had
to go to the agencies directly. The Government has told so many falsehoods that it is
having trouble keeping its stories straight. The Government, of course, told such
falsehoods in order to create the illusion of diligence ?We didn?t know until February
2012 that we had to go to the individual agencies and when we found out, we did that
However, when one looks at the dates the Government has presented to
the Court and the representations. it had made, one sees that the reality is otherwise than
presented by the Government.

The Government claims that on or about 1 November 2011, it ?the prosecution began to
reach out to individuals on the ONCIX contact list in order to obtain copies of the
damage assessments.? Id. at 29. The Government provides no proof of this. If this
actually happened, where were these damage assessments? Why was there a need to
have a paralegal re~reach out to these same organizations in February 2012? Moreover, it

25



is impossible to reconcile the Govemment?s timeline with its representation at the ?rst
802 session in February 2012 that it had contacted these agencies and had received no
Brady information from them. In short, the timeline that the Government has presented
does not make sense:

1 November 2011 Government reaches out to individual agencies to obtain
damage assessments. Unclear which agencies the Government contacted and
what the response was.

23 February 2012 Government represents that it has already reached out to
individual agencies and found no Brady material.

27 February 2012 Government tasks a paralegal to reach out to agencies that it
has apparently already contacted.

March?onward Defense begins receiving damage assessments/Brady from each
of the agencies that the Government purported to have contacted in November
2011 that apparently had no Brady material.

In particular, the Government had represented at an 802 session on 23 February 2012 that
the Government had reached out to the Department of Agriculture as part of its Brady
search and found nothing. Article 39(a) Audio Recording 23 February 2012,
(unauthenticated record of trial at p. 39). See Transcript at p. 106 (?Mr Coombs: Even
going so far as going to the Department of Agriculture to see if they had potential
information there. And then they stated; and they even state it here, that they have not
found any Brady The Court summed up the 802 session for the record as
follows:

MJ: The government advised the Court that although it has been
extensively engaged in evaluating executive branch and sub?branch ?les
for discoverable information prior to referral, the govemment?s due
diligence obligations under the Brady Williams case law; duty to ?nd,
evaluate and disclose favorable and material evidence to the defense will
take additional time because of the need to cull through voluminous
classi?ed and unclassi?ed information contained throughout executive
branch [and] sub?branch agencies that have been involved in the classi?ed
information disclosure investigations.

Id. at p. 38. The Defense added the following:

Mr. Coombs: Just that the when government spoke about its Brady search
they stated at that time they had not found any Brady material even though
they had looked for over a year.

Id. at p. 39. Even though the Government claimed on February 23 2012 that it had
already searched the Department of Agriculture and found nothing, the very next day, the
Government ?email[ed] the Department of Agriculture to inquire about any

26



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discoverable material.? See Chronology. Then on 30 March 2012 the Government states
that it ?retrieved classi?ed response from Department of Agriculture and subsequently
disclose[d] it to the defense.? Id. How could the Government have represented that it
had contacted the Department of Agriculture as of 23 February 2012 and that the
Department of Agriculture did not have any discoverable material, but then contact the
Department of Agriculture the very next day and ultimately disclose discoverable
material from the Department of Agriculture a couple of months later?

0 If it is true that the Government began reaching out to agencies in November 2011, some
ten months after being in touch with ONCIX, why was there a three month lag between
that time and the time it put in place its revolutionary paralegal idea? This, of course,
begs the question of who exactly was contacting agencies in November 2011.

70. There are so many holes in the Government?s story, that it will be impossible for the
Government to now plug them all. The bottom line is that the Government waited for well over
a year to collect damage assessments from the 63 agencies which it knew were favorable to the
Defense in the hopes that it would never have to produce them. The actual collection process
ended up being only a month or so, according to the Govemment?s Response. Now, after the
fact, it has woven a ?ctional account of what happened with these damage assessments to convey
the impression that it had been diligent all along. In reality, had the Government exercised
reasonable diligence, these damage assessments would have been produced almost a year ago
in April or May of 201 1).

3. The Government Was Not Reasonably Diligent in Producing Discovery from the
FBI, the Organization that Jointly Investigated the Accused

71. Much like with ONCIX and the 63 agencies, the Government dragged its feet on producing
the FBI investigative ?le and related discovery from the FBI (in particular, an ?impact
statement? that it hid from the Court and the Defense). The investigative ?le and the impact
statement will be discussed, in turn:

a) The Government Did Not Exercise Reasonable Diligence in Producing the FBI
Investigative File to the Defense

72. According to the Govemment?s Response, the FBI agreed to participate in a joint
investigation of the accused on or about 30 July 2010. See Government Response, p. 6. The
Government waited until 19 April 2011 to request approval to disclose to the defense the FBI
case ?le and its sub-?les. Id. p. 22. Apparently, the Government made two other duplicative
requests on 28 July 2011 and 15 August 201 1. It is unclear why the Government had to make
three requests for the same thing. Leaving this issue aside, it was not until 1 February 2012 that
the Government ?completed its review of the FBI ?le related to the accused.? This is a total of
288 days. While the FBI ?le related to the accused was undoubtedly large, there is no
explanation as to why it took ?ve prosecutors nearly one year to review the ?le.

73. The Government claims that after reviewing the ?le, on 7 February 2012, it ?began
extensive negotiations with DOJ and the FBI to disclose all requested information to the

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32188

defense.??2 The Government then states, ?The FBI would not approve disclosure to the defense,

absent a military judge to issue a Protective Order.? See Government Response, p. 22. The
Government includes a citation to Unclassi?ed Email 0451. The email is dated 5 May 2011,
nine months prior to the Government even reviewing the FBI ?le and engaging in ?extensive
negotiations? with the FBI as to whether the FBI would consent to disclosure of its case ?le.
The email, from someone at DOJ, is entitled Case File and Update? and reads as follows:

Hi Ashden/Joe,

Thanks for the update and the disks. Andy and I have taken a preliminary look and
wanted to give you advance notice of some potential concerns that we have with some of
the items on the unclassi?ed disk, as follows: [redacted]

That?s it for now. But I think it?s fair to say we will likely need an extension from
Monday May 9 to complete the review and obtain all necessary court orders.

74. The reference to ?completing the review and obtaining all necessary court orders? refers to
whatever task the was asked to complete by 9 May 2011.? Apparently, that task
involved potentially obtaining a court order. This ?court order? must have referred to some sort
of civilian court order, since there was no order from a military judge that could have been
obtained in May 2011, the time frame contemplated by the email (a military judge was not
detailed to this case until February of 2012).

75. The email does not, by any stretch of the imagination, say that the FBI refuses to disclose
information to the accused absent a military judge?s protective order. First, the email does not
refer to a ?military judge? or a ?protective order.? Second, the email was drafted nine months
prior to discussions about whether the FBI ?le would be disclosed to the accused. Third,
something as important as the FBI refusing to disclose information to an accused absent a
military judge?s protective order would not be casually referenced as a throwaway line after
?That?s it for now.? Presumably, there would be some formal memorandum from the FBI
indicating that it would not consent to disclosure unless the information was subject to a military
judge?s protective order (and presumably, this memo would be prepared in February 2012,
pursuant to the ?extensive negotiations?). Fourth, the email is entitled Case File? which
seems to suggest that this doesn?t even deal with the FBI investigative ?le. Fifth, this apparently
important communication is not even referenced in the Govemment?s chronology/time sheets;
one would expect something as signi?cant as the FBI refusing to disclose documents absent a
military judge?s protective order would be at least as important as the 5 May 2011 entry ?worked
on ?xing issues with courtroom equipment.? See Government Chronology. Finally, there is an
email from MAJ Fein on 11 May 2012 that appears to be part of the same email chain as the 5
May 2011 email (the subject line is Case File and Update?). In this email, MAJ Fein
writes:

'2 The Government cites ?Enclosure 1? for this proposition. Enclosure 1 spans many hundreds of emails, so it is not
clear what the Government is referring to.

'3 Based on Government Response, Enclosure 1, Unclassi?ed Email 0465, it appears that the task was to do an
?initial scrub of ?les for equities.? See also Unclassi?ed Email 0452.

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32189

Thank you again for the review of the CID ?les Joe and Angel are going to coordinate
with [redacted] to ?nish scrubbing the FBI ?les, and then we will put together our ?wish
list? of the documents we would like authorization to use and/or turn over in discovery.
Ideally, in the coming weeks, we will have a comprehensive list of all documents in all
investigative ?les (CID, FBI, and DSS), that we would like to seek approval for use
during discovery and will present the list to all for input and potential for follow-on
action requesting a modi?cation of sealing orders).

See Government Response, Enclosure 1, Unclassi?ed Email 0465. It is clear from this email that
the Government has not yet reviewed the FBI investigative ?le, much yet prepared its ?wish list?
for discovery. If that is the case, how could the email from 6 days prior be read to suggest that
the FBI will not disclose documents (yet to be reviewed and requested) absent a military judge?s
protective order?

76. In short, the Defense does not believe that the FBI had a ?prerequisite? that a military judge
issue a protective order prior to the FBI consenting to disclosure. See Government Response, p.
22. At the very least, this email does not say anything close to what the Government says it
does. The Defense believes that the Government needed to ?nd a way to hide its lack of
diligence in disclosing the FBI investigative ?le so late in the game. It was not until 21 May
2012 that the Government apparently disclosed the entirety of the investigative ?le to the
Defense. To put this in perspective, the Defense received the FBI investigative ?le an
elemental aspect of discovery nearly two full years after the accused was placed in pretrial
restraint. In order to explain its failure to provide the investigative ?le sooner, the Defense
believes that the Government searched its emails from the FBI and DOJ to ?nd the expression
?court order? and then claimed that this email says something that it does not that the FBI did
not consent to disclosure absent a protective order speci?cally issued by a military judge.?

b) The Government Hid the Existence of the FBI Impact Statement From the Court and the
Defense

77. The Government revealed for the ?rst time on 31 May 2012 that it had ?discovered? that the
FBI had prepared a damage assessment (what it called an ?impact statement?). In Appellate
Exhibit CI (Defense Reply to Prosecution Response to Supplement to Defense Motion to
Compel Discovery Defense Motion for Modi?ed Relief), the Defense argued:

Second, the Government casually mentions that it ?discovered that the FBI
conducted an impact statement, outside of the FBI law enforcement ?le, for which
the prosecution intends to ?le an ex parte motion under MRE
Government Response to Supplement, p. 4. What does the Government mean
that it ?discovered? that the FBI conducted an impact statement? The
Government and the FBI engaged in a joint investigation of the accused and are
closely aligned. The Defense has repeatedly asked for documents from the
moreover, the Government has a duty to turn over Brady even in the absence of a

It is important to note that a protective order was already in place. The Govemment, however, is claiming that
this protective order was not suf?cient for the FBI and that the FBI was seeking, in May 20] I, a protective order
from a military judge who was yet to be detailed and who would not be detailed for another 9 months.

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Defense Request. See Government Response to Supplement, p. 6 (?The
prosecution shall, and will, disclose Brady even in the absence of a defense
request?).

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

Apparently, despite the Defense?s discovery request, the Government did not
disclose the existence of the FBI impact statement in January. When was the
impact statement prepared?? Why is the Government only now ?discovering? its
existence, as if by happenstance, three months before trial? Presumably, the
impact statement is something that has been in the works for a while. In other
words, the FBI impact statement did not just magically appear out of thin air.
Why has the Government not disclosed its existence to the Defense or to the
Court? This latest revelation by the Government shows that the Court and the
Defense are left completely in the dark about relevant documents that exist in

closely aligned agencies until the Government decides, at its convenience, to
con?rm or reveal their existence. Further, the Government states that it intends to
produce any Brady material ?as soon as possible; however, the current case
calendar outlines MRE 505 proceedings to take place a future date.? Government
Response to Supplement, p. 4. The subtext of this statement is that it will be
months before the Defense gets access to the impact statement.

Id. p. 10-11.

78. At oral argument on 6 June 2012, the Court asked MAJ Fein when the Government learned
about the FBI impact statement.

COURT: Alright, we will be addressing that aspect of this motion at the next
session. I understand the Defense?s argument. Government, are you prepared to
tell me when you did know about this impact statement or impact assessment??

MAJ Fein: Your Honor, the Government would like to at least have a chance to

argue the due diligence argument ?rst and then answer that in (inaudible) Court?s
order.

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32191

Article 39(a) Audio Recording 6 June 2012. MAJ Fein seemed to indicate that he would
provide an answer to the Court?s very straightforward question as part of the Govemment?s due
diligence submission, for which he had requested a two-week extension. MAJ Fein did not
address the FBI impact statement at all in the Govemment?s 20 June 2012 submission. The
Government also conveniently omitted any reference to the FBI impact statement in its Response
to the Defense Motion to Dismiss for Lack of Speedy Trial.

79. However, in the Govemment?s 230-page Chronology, the Government indicates that it sent
a request to review any FBI damage assessment on 6 October 2011 and that it reviewed the FBI
impact statement on 2 November 2011 (?Email with FBI-sent impact statement?; ?Prosecution
initially reviews FBI impact statement?). It is clear that the Government knew about the
existence of the FBI impact statement at some point prior to 6 October 2011 (though it is not
clear when the FBI completed the impact statement or when the Government first learned of the
impact statement).

80. And yet, despite knowing about the FBI impact statement since at least 6 October 2011, the
Government waited until 31 May 2012 to disclose its existence to the Defense and the Court. In
other words, it took the Government a mind-boggling 238 days to even tell the Court and the
Defense that the FBI had prepared an impact statement. And, in so doing, the Government made
it look like it was just now ?discovering? the existence of the impact statement. See Appellate
Exhibit 100, p. 4 (?The prosecution further requested that the FBI search its entire records for
information relating to any damage resulting from the charged offenses. The prosecution
discovered that the FBI conducted an impact statement, outside of the FBI law enforcement ?le,
for which the prosecution intends to ?le an ex parte motion under MRE The
Government provides no date for when the FBI prepared this statement and for why it took the
Government 238 days to disclose its existence to the Court and the Defense.

81. And, because the Government sought substitutions for some of the information that it had
been sitting on for 238 days, it was not until 19 July 2012 that the Court approved the
Government?s motion for substitutions and until 2 August 2012 that the Government provided
the Defense with a copy of the court-approved substitutions. In short, it took over nine months
from the time of the Govemment?s review of the impact statement to get the impact statement (or
a variation thereof) to the Defense.

4. The Government Did Not Exercise Reasonable Diligence in Producing Discovery
from the Department of State

82. As if all the above weren?t enough, the Government moved at a snail?s pace with respect to
discovery from the Department of State. This, of course, is not surprising given what appears to
be the Govemment?s modus operendi with respect to the Department of State: ?Let?s use the
information that?s favorable to the Government for our purposes, but let?s resist producing
anything of bene?t to the Defense.? The Defense will separately address the Department of
State damage assessment, general discovery from the Department of State, and the Department
of State?s complicity in denying PFC Marming his right to discoverable material and witnesses.

a) Department of State Damage Assessment

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83. The Defense made numerous discovery requests for the Department of State damage
assessment. The Government refused to provide the Department of State damage assessment to
the Defense. The Government, in fact, refused to acknowledge that the Department of State was
even working on a damage assessment (the Government referred to the damage assessment as
?alleged?) despite having submitted a request to the Department of State on 6 October 2011 to
view the damage assessment and despite public proclamations from the Department of State that
it was conducting a damage assessment.

84. The Government, in response to the Court?s questions on 21 March 2012 as to whether the
Department of State had a damage assessment indicated that ?the Department of State has not
completed a damage assessment.? Because the Court and the Defense had knowledge that the
Department of State had something (if not a ?completed? damage assessment), the Court ordered
production of the Department of State damage assessment on 23 March 2012. The Court should
not overlook the fact that the expression ?the Department of State has not completed a damage
assessmen was given by the Government to the Court at the behest of the Department of State,
and was designed (much like the ONCIX statement) to convey the impression that the
Department of State did not have anything that was discoverable.

85. It was not until 18 May 2012, almost one year after it was prepared, that the Defense was
granted access to the Department of State damage assessment. The Government provides no
explanation for this time lag and why the damage assessment - a facially relevant document that
the Government had requested to review on 6 October 2011 was disclosed at such a late date.

b) The Government Did Not Exercise Reasonable Diligence in Ful?lling its Brady
Obligations with Respect to the Department of State

86. On 25 May 2011, the Government submitted a prudential search request to the Department
of State, asking it to preserve and locate certain documents related to PFC Manning and
WikiLeaks. The Government provides no explanation as to why this discovery request was
made of the Department of State (not to mention other key agencies) one full year after PFC
Marming was placed in pretrial restraint. Clearly, the Government knew that the Department of
State would be a big part of this case. Why did it wait one year to get the Department of State
involved in the discovery process?

87. Once the Government submitted the prudential search request to the Department of State,
the request then simply fell by the wayside for more than another full year. It was not until 28
June 2012 that the ?nishe[d] gathering and consolidating information responsive to the
prosecution?s prudential search request.? See Chronology. That is a total of 400 days for the
Department of State to ?gather and consolidate? documents. The Government has provided no
explanation much less a satisfactory explanation for why it took the Department of State 400
days to process the discovery request. Notably, 400 days is more than three times the length of
time that R.C.M. 707 provides for an accused to be brought to trial.

88. Interestingly, while the Brady search was on the back burner not being completed with
any degree of haste), the Department of State was providing evidence to the Government to help

32

32193

with the Government?s case-in?chief. The Govemment?s chronology refers to the following
activities that occurred after the Government submitted its prudential search request to the
Department of State:

10-Aug-11 Tue received valuation evidence

19-Aug-11 Fri Meeting-with DOS to discuss sentencing

13-Oct-11 Thu Request for Valuation Evidence (DOS)

19-Oct-11 Wed Email with DOS?requested valuation evidence

20-Oct-11 Thu Email with DOS- received noti?cation that request for valuation evidence
was being processed

2-Nov-11 Wed Email with DOS-request to disclose damage in slides

28-Nov-1 1 Mon Email with DOS-received valuation evidence

2-Dec-11 Fri Email with DOS- received valuation evidence

See Chronology. It is clear that when it came to the Government proving its case in particular
in advance of the Article 32 hearing it routinely followed-up with the Department of State to
ensure that it had all the information it needed. And the Department of State readily complied
with Government requests for assistance g. it took only a month for the Department of State to
get the Government valuation evidence for the Article 32 hearing). For the Article 32 hearing,
the Defense did not have one document (aside from the charged documents) from the
Department of State.?

89. Once the Department of State ?nally produced the relevant documents to the Government,
the Government was able to review them in less than three weeks 1-Jul-12 Wed Prosecution
completes review of DOS records responsive to Court ruling?). It then took another 65 days for
the Government to coordinate with the Department of State to actually produce these documents
to the Defense. If the Department of State had actually produced these records in a timely
manner, the Defense would have had these documents over one year ago not one month ago.
No explanation has ever been provided for the inordinate amount of time that elapsed in
submitting a prudential search request and in the Department of State responding to a prudential
search request (or, for that matter, for the inordinate delay of the Government in even submitting
a prudential search request).

90. The diligence, or lack thereof, of other agencies is highly relevant to evaluating speedy trial
rights. See United States v. Kuelker, 20 M.J. 715, 716-17 (N .-M. Ct. Crim. Rev. 1985)
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 Otherwise, a prosecution could drag on for years or even
decades by ?blaming? the delay on entities outside of the prosecution team. Even with the
most diligent prosecutor, asking for updates and attempting to speed up the process on a daily
basis, one could have a speedy trial violation if the case as a whole was not moved along at a

'5 As evidence that the Government was simply perfecting its case at the expense of the Defense prior to the Article
32 hearing, see Government Response, p. 79 (noting that in November 2011, ?the prosecution presented its case,
speci?cally how it intended to prove the charges and what damage, if any, the accused?s misconduct has
What the Government is saying is that it kindly shared its case with the Defense, while refusing to provide the
Defense with even a scintilla of evidence to be able to use to rebut the charges.

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32194

diligent pace. In short, the lack of diligence of individual entities is imputed to the Government
for speedy trial purposes.

91. In United States v. Pyburn, 1974 WL 13919 (C.M.A.), the Court of Military Appeals found a
violation of the accused?s speedy trial rights where there was an ?unexplained slowness of
another agency in analyzing and returning evidence.? The Court stated:

Even where the prosecution does not exercise any direct control over the facility
where evidence is analyzed, the duty of speedily trying the accused cannot be set
aside by the unexplained slowness of another agency in analyzing and returning
evidence. The 62-day delay associated with the laboratory analysis in this case
was not a ?really extraordinary circumstances? justifying the failure to try the
accused within 90 days.

Id. at *180 (emphasis supplied). If 62 days constitutes a period of ?unexplained slowness? in
Pyburn, what are we to say about 400 days? The Department of State did not respond to the
Government?s prudential search request for 400 days and it appears that the Government was
in no haste to have the Department of State do so. The lack of diligence of the Department of
State is ascribed to the Government for Speedy Trial purposes.

c) The Department of State was a Willing Partner in Impeding PFC Manning?s Speedy Trial
Rights

92. The Department of State was the G0vemment?s willing partner in impairing PFC Marming?s
right to a speedy trial, his rights to discovery under R.C.M. 701 and his right to equal access to
witnesses under Article 46, UCMJ. It is clear that the Department of State has been feeding the
Government information for its case-in-chief, while secreting discovery and witnesses from the
Defense and encouraging the Government to make frivolous arguments during the course of this
litigation. Below, the Defense addresses the Department of State?s requirement for a Touhy
request prior to speaking with the Defense, the Department of State?s ludicrous discovery
positions, and the Department of State?s attempt to hide the damage assessment from the
Defense. All of these are examples of extreme bad faith on the part of both the Government and
its close ally, the Department of State.

The Department of State ?s Requirement that the Defense File a Touhy Request

93. After asking to speak with witnesses from the Department of State for approximately one
year, the Defense was informed in March 2012 that it needed to ?le a ?Touhy Request? to be
able to interview and potentially depose Department of State witnesses. The Government
provided no explanation as to why, almost two years into the case, the Defense was in March
2012 being informed of apparently the proper bureaucratic protocol to follow for interviewing
Department of State witnesses. According to its Chronology, on 26 March 2012, the
Government submitted the Touhy request on behalf of the Defense and assured the Defense that
it would do its utmost to encourage the Department of State to process the request in an

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32195

expeditious manner.? Despite multiple inquiries from the Defense as to the status of its Touhy

request, the Defense has not heard a peep on the Touhy request in the past seven months a total
of 205 days.

94. This is particularly ironic because the Government apparently had to submit Touhy requests
on its own to view certain damage assessments, and these Touhy requests were approved in two
days. "See Chronology (2-Apr-12 Mon Email with OPM?submitted written Touhy request
consistent with OPM's demands to review damage assessment; 4-Apr-12 Wed From OPM OGC-
Approved Touhy request, will make arrangements for the prosecution to receive a copy of the
damage assessment). Clearly, what?s good for the goose is not good for the gander. The
Government had its Touhy request approved in 2 days and the Defense is still waiting 205 days
later with no word. Equal access to witnesses under Article 46 does not include jumping through
impenetrable red tape to even speak with witnesses.

95. As the Government will recall, the Government put 22 witnesses from the Department of
State on its witness list. The Defense has attempted to interview these witnesses, but has not
been able to do so because its Touhy request has not been approved.? It is clear that Touhy was
deliberately designed by the Government and the Department of State as a roadblock to insulate
the Department of State from questioning by the Defense.

The Department of State ?s Attempt to Hide the Damage Assessment from the Defense

96. As the Court knows, it was yeoman?s work getting the Government to ?nally admit that the
Department of State had a damage assessment. The Government?s original position
(undoubtedly at the behest of the Department of State) was that the Department of State had not
?completed? a damage assessment. See also Appellate Exhibit XVI, Government Response to
the Defense Motion to Compel p. 1 (?The United States disputes any allegation, including
those relating to whether, when, and to what extent select agencies, departments and
organizations reviewed the compromised information, supported by unof?cial public
statements?). Its position with respect to ONCIX was the same. Both of these statements
conveyed the impression that the Department of State and ONCIX had nothing i.e. that these
?alleged? damage assessments simply did not exist. The Defense, by this point, knew better and
that the Government was fond of playing word games. The Defense argued that the Government
was likely using the word ?completed? as a synonym for ??nished? as in ?The Department of
State has not ?nished completing its damage assessment.? Clearly, had the Government?s
submission been phrased that way, everybody would have known that the Department of State
had a damage assessment, but that it had not been ?nalized. However, the Government?s
language apparently authorized by the Department of State was calculated to create a false
impression. Had the Defense simply ?let it go,? the Defense would not have the Department of
State damage assessment (much less the ONCIX damage assessment, the DHS damage

Note, however, that the Department inexplicably did not receive the Touhy request until 6 April 2012, some 10
days later. Apparently, the Government submitted the Touhy request through the Pony Express.

'7 On 17 October 2012, during an R.C.M. 802 Session, the Government stated that a Touhy request was no longer
required due to the addition of the requested individuals on the Govemment?s witness list. Besides being
inconsistent with the Govemment?s previous position regarding whether Article 46 trumps any Touhy requirement,
the Government still fails to explain the 89 day delay between the ?ling of the Touhy request on 26 March 2012 and
the Govemment?s ?ling of its initial witness list on 22 June 2012.

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assessment and the like). This was what the Government and the Department of State was
hoping for. And this is why they had so many conversations just prior to the 15 March 2012
motions argument dealing with discovery of the Department of State Damage Assessment. See
Chronology (2-Mar-12 Fri Email with DOS-discussed draft damage assessment; 6-Mar-12 Tue
Email with DOS-discussed draft damage assessment; 14-Mar-12 Wed Email with DOS-
discussed draft damage assessment). Clearly, at the 15 March 2012 motions argument, the
Government knew that the Department of State had a ?draft? damage assessment however, its
representation to the Court was only a half-truth. It was only because the Defense provided a
mountain of proof, including newspaper articles, that the Court pushed the issue with the
Government. The Defense should not have had to disprove the Govemment?s false impression.

The Department of State Intermeddled in the Instant Case By Feeding the Government Frivolous
Litigation Positions

97. The Defense has argued previously that the Government has allowed the Department of
State to commandeer its litigation positions. This is abundantly clear when one looks at the
?Government?s? the Department of State?s) position with respect to draft damage 9
assessments and the discoverability of documents which pre-dated the Department of State
damage assessment.

98. After the Court ruled on 23 March 2012 that the Government must produce the Department
of State damage assessment, the Government and the Department of State put their heads
together to come up with a way to re-litigate the Court?s ruling. They found a random quotation
from a second concurring opinion from a1967 case (Giles v. Maryland) and used that one
sentence to craft an argument that a draft damage assessment is ?speculative? and therefore is not
discoverable under R.C.M. 701. However, the Government did not assert this litigation position
right away. Instead, it waited until May 2011 to raise this issue. The position was so ridiculous
and so unsupported in law that the Court did not ask the Defense to brief it. This, in turn,
prompted the Government to contact ONCIX and DHS and ultimately to reveal to the Court that
there were other draft damage assessments in existence. The Government acted in bad faith in
supporting the Department of State?s position in this respect; the Govemment?s job is not to
advance the interests of various equity holders but to litigate this case as justice requires. If the
Department of State wanted to invoke a privilege, it was permitted to do so. What it is not
permitted to do and what the Government allowed to happen - is to interject itself into the legal
issues and rulings in this case.

99. The Department of State?s interference did not end there. Once the Court ordered the
Government to examine documents from the Department of State (over two years into the case),
the Government came back to the Court asking for permission to simply exclude from discovery
anything with a date that preceded the Department of State damage assessment - which would, in
effect, be practically everything at the Department of State. Its basis for this request is that the
information predated the damage assessment was ?likely? considered by the Department of
State, therefore making it cumulative. The Government?s the Department of State) position
was wholly devoid of logic. After all, the Department of State damage assessment was less than
50 pages; how could the 5000 plus pages of Department of State discovery be cumulative when

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the damage assessment was less than 50 pages? That the Government even attempted to make
this argument at the behest of the Department of State is yet another example of bad faith.

100. The point is that this is yet another in a long series of examples of the Government doing
the bidding for other government agencies. The 2-year plus delay in the Department of State
producing Brady discovery to the Government, followed by subsequent delays arguing the Giles
point and the ?must be cmnulative point,? followed by additional time to get Department of State
docmnents ready for disclosure re?ects concerted effort by both the Government and Department
of State to deny discovery to the accused and impede his right to a fair and speedy trial.

5. The Government Did Not Exercise Reasonable Diligence in Searching Its Own Files
(the HQDA Memo)

101. The Defense discovered, by accident, that in July 201 1, the Government had sent out a
memo to Headquarters, Department of the Army requesting it to task Principal Officials to
search for, and preserve, any discoverable information. This memo was sent out on 29 July
2011. See Defense Motion to Compel Discovery Attachment A. According to a 17 April
2012 Memorandum for Principal Of?cials of Headquarters, Department of the Army, was
only recently determined that no action had been taken by HQDA pursuant to the 29 July 11
memo from DOD Id. This memo clearly shows that no action had been taken by HQDA
for nine months in response to the Govemment?s request for Brady and other potentially
discoverable material.

102. The Government provides no explanation as to why it submitted a Brady search request to
HQDA 426 days after PFC Marming as placed in pretrial restraint. Instead it focuses on trying to
explain the ?lrther nine month delay in following-up with HQDA. The Govemment?s
explanation essentially amounts to ?We outsourced the Brady search and then forgot about it.?

103. Actually, when one looks at the Govemment?s ?explanation,? it?s even worse than that.
The Government writes:

On 25 May 2011 and again on 6 June 201 1, the prosecution submitted a
Prudential Search Request to DOD, which included HQDA. On 8 August
2011, the prosecution followed up with DOD OGC and learned the request was
distributed on 29 July 2011.

See Government Response, p. 24. Essentially, what the Government is saying is that after 361
days of PFC Manning being in pretrial restraint, the Government enlisted the help of DOD to
submit a prudential search request to HQDA. Apparently, submitting a prudential search request
to HQDA directly would have been too arduous. Then, DOD waited over two months to submit
the prudential search request to HQDA.

104. The Government continues:

On 3 October 2011, the Joint Staff noti?ed the prosecution that it compiled all
the responsive material. Between the middle of October 201 land the start of the

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Article 32 investigation on 16 December 2011, the prosecution began to process
the voluminous material into its computer systems and understand what
information needed to be reviewed. After realizing the Joint Staff and DOD
response did not include material 1 from HQDA, the prosecution contacted DOD
OGC on 5 January 2012, who advised the prosecution to contact HQDA directly
to speed up the process.

Id. (emphasis supplied). So essentially the Government?s position is that it realized in January
2012, nearly six months after submitting a prudential search request, that DOD had dropped the
ball on obtaining information from HQDA. Whether DOD or the Government dropped the ball
is of no moment; somebody dropped the ball and the Government is accountable for the lack of
diligence for speedy trial purposes.

105. The Government then writes:

On 10 January 2012, the prosecution emailed Criminal Law Division, Office of
the Judge Advocate General, United States Army (hereinafter to
request an update, and was informed that OTJ AG needed to contact DOD OGC
for the inquiry.

Id. This statement by the Government doesn?t make any sense. The Government says it
?contacted DOD OGC on 5 January 2012 who advised the prosecution to contact HQDA directly
to speed up the process.? Id. But on ?On 10 January 2012, the prosecution emailed Criminal
Law Division, Of?ce of the Judge Advocate General, United States Army (hereinafter
to request an update, and was informed that OTJAG needed to contact DOD OGC for
the inquiry.? Wasn?t the Government already told on 5 January by DOD that it had to go to
HQDA directly? Why was it emailing the OTJAG instead of

106. Then the story seems to fall apart even more:
On 2 February 2012, the prosecution again emailed OTJ AG to request an update.

Id Apparently the Government did not understand what it was being told on 5 January 2012.
Why was it still emailing OTJAG when it had been told by OTJAG to go to DOD directlyHQDA directly? Couldn?t this utter mess of broken telephone have been
avoided by doing the only seemingly logical thing that is, going to HQDA directly?

107. The Government continues with its tangled HQDA story in a different part of its Response:

The Deputy Staff Judge Advocate (DSJA), MDW emailed OTJAG on 6 March
2012 for an update on the status of the Prudential Search Request. On 16 March
2012, the DSJ A emailed OTJ AG again for an update and it was determined that
OTJ AG was coordinating the best method to ef?ciently execute the task, which
had not occurred based on the OGC, tasker. On 27 March 2012, on behalf of
the prosecution, the DSJA, MDW emailed OTJAG with an explanation of the
prosecution's discovery obligations, including the requirement to respond to the

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Court by 18 May 2012 with an update of the prosecution's review of the DOD and
HQDA information. On 23 April 2012, OTJAG noti?ed the prosecution that it
had started to receive responsive information.

Id. at p. 40. It seems like the Government did not get the message. It was told to go to HQDA
directly, and instead chose to engage in another four months of broken telephone. Apparently,
though, the Government was in no rush to get this information information which could have
been produced nearly a year earlier. Finally, on 1 1 May 2012, the prosecution received the
HQDA information. One would thing that, after all this time, the Government would have
looked at the HQDA information. Not so. Instead, it waited until 30 June 2012 50 days
later) to look at this information. Apparently, the Government completed its review in a mere 2
days.

108. Despite having approval to disclose the information since 5 June 2012 (See Chronology,
?5-Jun-12 Tue Email with HQDA-sent signed approval for consent to disclose?), the
Government waited until 2 August 2012 to disclose the HQDA discovery to the Defense. This is
a total of 339 days after the original memo was sent to HQDA. What this episode shows is how
fatally ?awed the discovery process was. The Government could not keep track of what was
going on and the right had did not know what the left hand was doing. What is unimaginable is
that the Governmentlost track of Brady discovery within the Army?s
own ?les for almost a year.

6. The Government Did Not Exercise Reasonable Diligence in Completing its
Discovery Obligations of Other Closely Aligned Agencies

109. The Government indicates that it sent out prudential search requests to the various closely
aligned agencies beginning in May 2011.13 Some of these requests were actually sent later; for
instance, the prudential search request of the FBI was sent on 27 June 2011 and the DEA
prudential search request was sent on 16 November 2011. Notably, the search requests included
the request that the agencies ?take all reasonable and necessary steps to preserve any responsive
?les gathered as a result of [its] search for information.? (emphasis supplied). It is nonsensical
for the Government to have requested for agencies to ?preserve? documents a year after they
may have come into existence. Why were the preservation requests not sent to the agencies
shortly after charges were preferred?

110. Moreover, the prudential search requests do not request that the agencies search for Brady
information. Rather, the Government requested the organizations to:

?conduct a thorough and comprehensive search of its records for information
which concerns or references PFC Manning and/or WikiLeaks, including certain
information. . .which directly implicates the evidence? in this court-martial; and

'3 The Government indicates that it sent out these requests ?sua sponte? and ?proactively? See Government
Response, p. 23, 79. The Defense is not sure what this is intended to convey. Of course the Government sent these
out ?sua sponte? - did the Government expect the Defense to submit the prudential search requests?? Or the agencies
to come to the Government with discovery?

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(2) ?take all reasonable and necessary steps to preserve any responsive ?les
gathered as a result of [its] search for information.?

Id. at p. 23. Nowhere in this search request is a request for Brady information. The Government
itself realizes this, so it goes to pains to say, ?The prosecution included any records relating to
WikiLeaks to capture, inter alia, any documents that discussed damage resulting from the
unauthorized disclosures.? Id. In other words, the Government is now trying to say that
?documents related to WikiLeaks? was intended to capture documents which ?discussed the
damage resulting from the unauthorized disclosures.? Id. It is clear that the prudential search
requests were not aimed at obtaining mitigating evidence which dealt with damage (or lack
thereof) from the leaks. Otherwise, the Government could simply have asked for those sorts of
documents, as it did after it realized in April of 2012 that nobody had acted on the HQDA memo.
In that prudential search request, the Government requested:

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

Clearly the Government is quite capable of asking for documents which ?discussed the damage
resulting from the unauthorized disclosures.? See Government Response, p. 23. Instead, it
realized as it was preparing its Response that it had never actually asked for Brady infonnation,
to include documents which discussed the lack of damage resulting from the alleged leaks. So it
needed to ?nd some way to explain the glaring omission and the only way possible was to read
into the statement ?documents related to WikiLeaks? to include documents related to damage (or
lack thereof) caused by the alleged leaks. This is a stretch, even for the Government.

111. As noted above, it was not until May of 2011 that the Government began sending out these
prudential search requests (which did not even ask for Brady material). The Government fails to
explain why there is a one-year gap (or signi?cantly more) between the accused being placed in
pretrial restraint and its submission of these prudential search requests. Not only did it take the
Government a year to send out prudential search requests, but it took over another year to
actually produce responsive documents from these agencies. In short, it took over two years for
the Defense to receive discovery, including Brady discovery, from closely aligned agencies. For
instance, even though the Government sent ODNI a prudential search request on 27 May 2011 (a
year after PFC Marming was placed in pretrial restraint), it waited until 11 July 2012 to review
the responsive documentation. See Chronology. This is a total of 411 days for the Government
to even sit down and review documents from a closely aligned agency. And then, it wasn?t until
14 September 2012 that the Government disclosed these ODNI documents to the Defense, which
brings the elapsed time between the submission of the prudential search request and disclosure to
the Defense to 476 days.

112. The Government claims to have ?both fonnally in writing and informally through emails
and in meeting, requested many updates on the status of the search.? See Government Response,

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p. 23. The Government could have asked for updates every day for 400 days that would not
change the fact that the agencies themselves were not reasonably diligent in producing the
information. The Government never appears to have once asked why the process was taking so
long. Regardless of who bears the blame for the delay which the Defense submits is both the
agencies and the Government the time is attributable to the Government for speedy trial
purposes.

113. There are too many open-ended questions for the Defense to count when it comes to the
Government?s discovery obligations. Below, the Defense highlights three specific discovery
issues (of many) that the Government has yet to account for.

a) Department of Homeland Security Damage Assessment

114. The Government indicates that on 19 October 2011, authorize[d] prosecution to
review DHS damage assessment.? See Chronology. It is not clear when the DHS completed the
damage assessment, but it is safe to assume that it was months prior. The Government did not
disclose the existence of the DHS damage assessment until 6 June 2012, sum 231 days after the
Government was authorized by DHS to review the damage assessment.

115. The Government failed to provide any explanation as to why this damage assessment,
much like the ONCIX damage assessment, was hidden from view until the 11"? hour. However,
when one looks at the Govemment?s chronology, it is clear what happened. The Government
was hoping to hide the very existence of the DHS damage assessment from the Defense and the
Court. However, when the Court ruled against the Government on 11 May 2012, denying its
motion for reconsideration of the Court?s ruling on the discoverability of the Department of State
damage assessment, the Government realized it was in trouble. Consequently, there was a ?urry
of discussion between the DHS and the Government in the immediate aftermath of the Court?s
order. See Chronology (16-May-12 Wed Email with DHS?discussed Court Order; 21-May-12
Mon Email with DHS?discussed Court Order; 24-May-12 Thu Email with DHS-noti?ed that
DHS is in the process of clearing the damage assessment for disclosure to the defense). It is
clear that the Government would never have disclosed the existence of the DHS damage
assessment absent the Court?s ruling on 11 May 2012 (but note: there is no indication that the
DHS damage assessment at this point was even in draft

19 In the aftermath of the Court?s 1 I May 2012 ruling, the Government reached out to dozens of entities asking for
discoverable material. See Government Chronology:

14-May-12 Email with Export-lmport Bank of US to inquire about any discoverable material
14-May-12 Mon Email with FMC to inquire about any discoverable material

I4-May-12 Mon Email with MMC to inquire about any discoverable material

14-May-12 Mon Email with to inquire about any discoverable material

14-May-12 Mon Email with SSA to inquire about any discoverable material

14-May-12 Mon Email with to inquire about any discoverable material

14-May-12 Mon Phone call with Export-lmport Bank of US to inquire about any discoverable material
14-May-12 Mon Phone call with FCA to inquire about any discoverable material

14-May-12 Mon Phone call with FMC to inquire about any discoverable material

14-May-12 Mon Phone call with MMC to inquire about any discoverable material
14-May-12 Mon Phone call with OPI to inquire about any discoverable material

14-May-12 Mon Phone call with SBA to inquire about any discoverable material

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b) IRTF Damage Assessment and Second Follow-On Damage Assessment

116. As yet another example of the Govemment?s lack of diligence, on 25 October 2011, the
Government ?requested approval to disclose the classi?ed IRTF Final Report to the defense.?
This obviously means that the IRTF damage assessment was prepared many months prior. See
Chronology. And yet, it was not until 6 June 2012 that the Government disclosed the IRTF
damage assessment to the Defense. Again, it was likely a full year (if not longer) between
completion of the report and its disclosure to the Defense. A one-year turn-around time for a
document even a classi?ed document does not constitute moving the case along with
reasonable diligence. The Government fails to provide any explanation for the delay.

117. Another issue the Government completely ignores in its Response is the second
?follow-on report to the original WikiLeaks Task Force Report.? See Prosecution Notice to the
Court of Identi?cation of Additional CIA Information. The Government indicated that it had
?learned on 11 July 2012 that the CIA ha[d] drafted another report analyzing the impact of the
WikiLeaks disclosures on a discrete matter.? The Govemment?s 11 July 2012 entry fails to
mention this apparently important matter.

118. However, interestingly, the Govemment?s Chronology notes that on 11 April 2012, the
?Prosecution reviews two versions of OGA1 damage assessment.? Was one of the two damage
assessments this ?follow-on report? that the Government claimed to have learned about on 11
July 2012? The Government states in its Notice that ?the United States intends to review the
additional reports on 13 July 2012.? And yet, 13 July 2012 does not contain any reference to the
follow-on CIA Report. In fact, the Defense could ?nd no reference in the Govemment?s
chronology to the second CIA Report. As the Defense asked in its Motion to Dismiss for Lack
of a Speedy Trial, why was the Government in 11 July 2012 just ?learn[ing] on 11 July 2012 that
the CIA has drafted another report.? When was the report prepared? Why did the Government
not know about the report? Or, did the Government know about the report for quite some time?
Again, the Government remains mum on the answers to these questions.

119. The Government claims that these late disclosures did not impact the Defense and implies
that the Defense should be grateful to the Government for providing discovery:

The defense also alleges that the delay in discovery has impacted his ability to
prepare for trial. . .. Further, to the contrary, the prosecution ?s proactive
discovery e?orts better enabled the accused to prepare his defense. The
prosecution, sua sponte, submitted preservation requests to more than a dozen
government organizations. The discovery already provided to the defense has
resulted in additional defense discovery requests. These continued requests reveal

I7-May-12 Thu Email with ODNI to inquire about any discoverable material with NCPC
Thu Email with ODNI to inquire about any discoverable material with NCTC

The timing should not be viewed as mere coincidence. Undoubtedly, the Government realized that all these
organizations potentially had draft documents which could be discoverable.

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that the defense valued the discovery they received and were willing to wait based
on the possibility of the existence of more discoverable information.

See Government Response, p. 79 (emphasis supplied).

120. The Government is completely out of touch with reality if it believes that the late disclosure
?better enabled the accused to prepare his defense? and that the Defense was ?willing to wait?
for discovery. The Defense ?wait[ed]? for discovery simply because it had no other choice.

And the Defense is still waiting for discovery in this case. As of a couple of weeks ago,
discovery was still pouring in, as evidenced by the Government?s Chronology:

15-Sep-12 Sat Discovery production: Bates# 00514454-00514497 (44 pages)
including DHS information [Unclassi?ed]

15-Sep-12 Sat Discovery production: Bates# 00514498- 00514498 (1 pages),
including DHS information [Classi?ed]

15-Sep-12 Sat Discovery production: Bates# 00514501- 00514898 (398 pages),
including DIA and ODNI information (SCI F) [Classi?ed with Special

Control Measures]

19-Sep-12 Wed Discovery production: Bates# 00514499- 00514500 (2 pages),
including DOE information [Unclassi?ed]

19-Sep-12 Wed Discovery production: Bates# 00514899- 00515842 (944 pages),
including DIA and CIA information [Classi?ed]

19-Sep-12 Wed Discovery production: Bates# 00515843- 00519167 (3325
pages), including Quantico emails [Unclassi?ed]

20-Sep-12 Thu Discovery production: Bates# 00519168- 00519352 (185 pages),
including FBI information [Classi?ed]

20-Sep-12 Thu Discovery production: Bates# 005193 53- 00523672 (1286 pages),
including DOS information [Classi?ed]2? .

c) Grand Jury Testimonv

121. The Government also fails to explain why the huge time lag in producing Brady from grand
jury testimony. It indicates that on 29 September 2010, informed prosecution that judge
signed order disclosing grand jury matters to prosecution.? See Government Chronology. But it
wasn?t until 12 April 2012 that the Government reviewed grand jury information. Id. Although
it had ?authority to disclose? grand jury information to the defense on 2 June 2011, the grand
jury information was not produced until 21 May 2012. This is almost one year later, and a total
of 600 days after a judge signed an order allowing the grand jury material to be given to the
Government. Again, the Government provides no explanation as to why the grand jury material
could not have been produced much sooner than it actually was.

2? Ironically, the Government includes an entry on 14 September 2012 stating Fri
PROSECUTION DISCLOSES, OR SUBMITS TO THE COURT FOR IN CAMERA REVIEW, All
OUTSTANDING Clearly, as of 14 September 2012, the Government had not disclosed all
outstanding discovery.

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122. Had the Government exercised reasonable diligence, the ?discovery phase? of the court
martial would not have extended well over two years into the case. It is unacceptable that 847
days into the case, discovery is still not complete. Had the Government made inquiries much
sooner than it did, and had it kept on top of the agencies in a diligent manner, the case would
have gone to trial a great deal sooner than February 2012.?

7. The Government Was Not Reasonably Diligent in Providing Discovery From
Quantico

123. As documented in previous motions, included the Defense?s Motion to Dismiss for Lack of
a Speedy Trial, the Government dumped critical emails on the Defense literally the night before
the Defense?s Article 13 motion was due, and after the Defense had already ?led its Attachments
with the Court. This is yet another in a long series of examples of bad faith on the part of the
Government. When the Govemment?s lack of diligence is tied to bad faith, this weighs heavily
in the speedy trial calculus. See Barker v. Wingo, 407 U.S. 514, 531 (1972)
weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to
hamper the defense should be weighted heavily against the government. A more neutral reason
such as negligence or overcrowded courts should be weighted less heavily but nevertheless
should be considered since the ultimate responsibility for such circumstances must rest with the
government rather than with the defense. Finally, a valid reason, such as a missing witness,
should serve to justify appropriate

124. The Govemment?s extremely late disclosure of the Quantico emails (and subsequent
communications with the Defense) is illustrative of both lack of diligence and bad faith on the
part of the Government. The Government justi?es holding on to these emails for up to a year
without even so much as looking at them (much less disclosing them) on the following basis:

On 8 December 2010, the Defense submitted a discovery request, requesting
?[a]ny and all documents or observation notes by employees of the Quantico
con?nement facility relating to [the accused].? Enclosure 1 to AE CCXLIV. In
the same discovery request, the Defense requested ?[a]ny report, e-mail or
document discussing the need for the State Department to disconnect access to its
?les from the government's classi?ed network.? Id. (emphasis added). The
discovery request also requested, ?[a]ny e-mail, report, assessment, directive, or
discussion by President Obama to the Department of Defense, Department of
State or Department of Justice.? Id. (emphasis added). The discovery request
further requested, ?any and all memorandums, e-mails, or other references by
Congressmen, Senators, or government of?cials concerning the disposition of this
case or the need to punish [the accused].? Id. (emphasis added). The discovery
request requested, ?[a]ny and all documentation, e-mails, or reports given to the
Summary Court-Martial Convening Authority, the General Court?Martial
Convening Authority, or the Staff Judge Advocate concerning the disposition of

2' It is clear that the Government was nowhere close to prepared to go to trial in February 201 1 when it referred the
case. Instead, it referred the case in order to stop the Speedy Trial clock under R.C.M. 707 and then took its time

over the next year to complete all the tasks that should have been completed in the ?rst year and a half of this court
martial.

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[the accused's] case or nature of the charges or possible charges against [the
accused].? Id. (emphasis added).

See Government Response, p. 41. In short, the Govemment?sjustif1cation for sitting on these
emails for six months to one year is ?we didn?t think you wanted them.? It is inconceivable that
the Government could make this argument with a straight face.

125. Apparently, the Government believes that the tenn ?document? does not capture emails.
This would mean that emails are not discoverable under R.C.M. 701 since the section
refers only to ?documents? and not ?emails.? If ?emails? are not a subset of ?documents? then
the defense would never be entitled to emails under R.C.M. 701(a)(2). Such a position is absurd.
Any sensible interpretation of the term ?documents? includes ?emails.? See e. g. United States v.
Solomon, 2012 WL 3106790, *2 (N The defense submitted two documents:
an email from the appellant's defense counsel from his previous court-martial and an incident
report from the Camp Pendleton Provost Marshal's supplied).

126. Moreover, even if the Defense did not specifically request ?emails,? the Government has an
independent obligation to turn them over. The Discussion to R.C.M. 701 states that ?[w]hen
obviously discoverable materials are in the trial counsel?s possession, trial counsel should
provide them to the defense without a request.? The discussion does not state that the
Govemment?s obligation kicks in when the Government ?gets around? to looking at documents;
such obligation kicks in once the documents are in the trial counsel?s possession. Such
documents were in the trial counsel?s possession six months to one year prior to when they were
disclosed. Waiting until a couple of days before the Defense ?ling date for the Article 13 motion
to view these documents is not only grossly negligent, but unfortunately characteristic of the lack
of diligence that has plagued this case from the outset.

127. When the Government disclosed the 84 emails the night before the Article 13 Motion was
due, MAJ Fein indicated that these emails were ?obviously material to the preparation of the
defense.? See Defense Motion to Dismiss for Lack of a Speedy Trial, Attachment 62. The
Defense was troubled by the Government?s use of the expression ?obviously material to the
preparation of the defense.? Accordingly, the Defense sent an email to the Government asking
whether there were documents that were material to the preparation of the defense, but not
obviously material to the preparation of the defense. See Appellate Exhibit 243, Attachments;
see also Appellate Exhibit 260. Two prosecutors from the Government (CPT Morrow and CPT
Overgaard) responded that the Government had produced all emails that were material to the
preparation of the defense, not simply those that are obviously material the Government was
not drawing a distinction between ?material? and ?obviously material?). Id.

128. On 17 August 2012, the Defense submitted a motion to compel production of the remaining
1,290 emails. See Appellate Exhibit 243. At this point, the Government decided to voluntarily
disclose 600 more emails to the defense, as constituting documents that were ?material to the
preparation of the defense.? What is clear is that two separate prosecutors were not entirely
truthful with the Defense about having disclosed all documents that were material to the
preparation of the Defense. The Govemment?s Response completely overlooks this aspect of the
Defense argument and never explains the misrepresentation by two different members of the
prosecution team. As with so many other things in this case, the misrepresentations were

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designed to hide from public view discovery that is embarrassing and damaging to the
Government.

8. Miscellaneous Other Examples of the Government?s Lack of Diligence and
Mischaracterizations of Fact

129. Among the miscellaneous other examples of the Govemment?s lack of diligence or
mischaracterization of fact are the following:

0 At p. 75 of its Response, the Government indicates that it exhibited diligence by
submitting a prudential search request to CYBERCOM six days after the Defense
submitted a request for CYBERCOM records. The Government was anything but
diligent. It should already have submitted a prudential search request to CYBERCOM
(much like it submitted a prudential search request to other military entities). As
explained in previous motions, CYBERCOM ?les are military ?les, subject both to
Brady/R.C.M. 702(a)(6) and R.C.M. 701(a)(2). Far from being diligent, the Government
missed the boat on not having already searched these ?les earlier.

0 The Government states that for the various administrative investigations related to the
accused, the Government ?immediately sought to review and produce said ?les to the
defense.? See Government Response, p. 6-7. The Govemment?s de?nition of
?immediately? is questionable. For instance, the Secretary of the Army AR 15-6
investigation was completed on 14 February 2011 and disclosed to the defense on 30
June 2011, 136 days later. Similarly, the United States Forces?Iraq (USF-I) AR 15-6
investigation was completed on 16 June 2010; the documents were not produced to the
Defense until 12 May 2011, 262 days later. Finally, the United States Division-Center
(USD-C) AR 380?5 investigation was completed on 16 June 2010, but not disclosed to
the Defense until 9 February 2011, 238 days later. This hardly quali?es as
?immediately.?

0 The Government indicates that it submitted a request for various OCAs to approve
disclosure of the charged documents to the Defense on 14 March 2011, around the same
time it requested classi?cation reviews. Again, why did the Government wait 295 days
before requesting that the OCAs approve disclosure of the documents to the Defense?
Apparently, the process was not overly involved, as the OCAs all approved the document
disclosure within 2 weeks.

0 On 14 March 2011, the Government submitted written requests to various organizations
to disclose classi?ed evidence to the Defense. Based on the Government?s description,
this request relates to the computer forensics evidence in this case. The Government does
not clearly indicate when the 14 March 2011 requests were approved. However, the
Defense received the vast majority of the computer forensic evidence right before the
Article 32, in November 2011. Accordingly, it appeared to take eight months for the
Government to get all the requisite approvals to disclose the computer forensics
information. The Government, again, provides no accounting for why the approval

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process took so long. Incidentally, the Govemment had the full bene?t of the forensic
evidence for a year and a half prior to the Article 32, while the Defense had this evidence
for approximately one month prior to the Article 32.22 Other than demonstrating that the
Government was not acting in a diligent manner, the timing suggests (much like many
things in this case) that the Government deliberately dumped tens of thousands of pages
on the Defense immediately prior to the Article 32 in order to gain a tactical advantage.

C. The Government Misunderstands Barker and the Relevant Case Law

130. The Government claims that a nearly 1000 day delay in this case was not facially
unreasonable. There is no military case in history that approaches anywhere near a 1000 day
delay. To not concede that this is a facially unreasonable delay in light of R.C.M. 707?s 120-day
mandate is disingenuous. The Government cites United States v. Schuber, 70 M.J. 181
(C.A.A.F. 2011) for the proposition that the nearly 1000 day delay was not facially unreasonable
within the context of this case. The Government, purportedly applying Schuber, proceeds to
separately address ?seriousness of the offense?, ?complexity of the case?, ?availability of proof?
and ?additional considerations? in order to bolster its contention that the nearly 1000 day delay is
not facially 1mreasonable.23 However, the Govemment conveniently ignores the Schuber court?s
warning that ?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
Lmreasonable. See United States v. Thompson, 68 M.J. 308, 312 (C.A.A.F. 2010); United States
v. Cassia, 64 M.J. 254, 256 (C.A.A.F. 2007). As is readily apparently, the Government has
improperly conducted a ?Barker analysis within a Barker analysis? to arrive at a conclusion
which de?es common sense: that a nearly 1000 day delay is not facially unreasonable.

131. At bottom, the Govemment?s analysis under Barker involves arguing, in as many different
ways as possible, that this case is complex.? The tenn ?complex? or ?complexity? appears in
the Government?s Response a total of 85 times. Apparently, the Government believes that if you
say something enough times, the Court will simply accept the Govemment?s fallacious logic:
?It?s complex, therefore 1000 days is reasonable.? As discussed above, nowhere in the
Govemment?s motion does it attempt to provide any showing that the 1000 days was, in fact,
reasonable by any sort of objective, quanti?able or demonstrable measure. Instead, as always,

22 Indeed, its presentation at the Article 32 hearing focused almost exclusively on computer forensics.

23 In this section, the Government also purports to explain what it was doing during time periods where the Defense
claims there was no apparent Government activity. The Defense requests that the Court examine what the
Government contends it was doing (which usually involved ?coordinating? and other administrative tasks) and ask
itself whether it is reasonable that it would take a five-person prosecution team that amount of time to complete the
tasks the Government claimed it was completing.

24 The Government appears to suggest at various points in its Response that it was the ?rolling? nature of the
disclosures that caused such a delay in the Govemment?s processing of this case. The WikiLeaks disclosures and
their timing is a red herring. The Government had computer forensics from PFC Manning?s computer by late 2010
and was able to identify with precision what information was allegedly compromised. Moreover, all the closely
aligned agencies had completed their damage assessments prior to all the documents being disclosed by WikiLeaks.
For instance, the damage assessments by the 63 agencies for ONCIX were complete in February 201 1, months prior
to all the diplomatic cables being released. Thus, any argument that it was the subsequent disclosures by WikLeaks
that delayed the case is wholly without merit.

47



32208

the Government expects the Court and the Defense to accept the Govemment?s say-so that a
1000 delay is permissible because, well, ?it?s complex.?

132. The Government then cites various cases involving ?complexity? within the context of
speedy trial claims. For instance, the Government cites Untied States v. Morrison, 22 M.J. 743
(N .M.C.M.R. 1986) for the proposition that ?the government showed the complexities of the
case and the unusually extensive efforts required to prepare for trial in a complicated scheme of
larceny of records sparming 20 months, encompassing at least two dozen co-conspirators, and
resulting in a loss of as much as one million gallons of aviations [sic.] fuel and signi?cant United
States Government action.? What the Government fails to tell the Court, however, is that the
Government in Morrison in apparently an overwhelmingly complex case involving misconduct
?spanning 20 months,? ?encompassing at least two dozen co-conspirators? and requiring
?signi?cant United States Government action? managed to bring the accused to trial within 208
days. If the prosecution team in Morrison managed to bring the accused to trial in 208 days, why
did it take the prosecution team in this case (with ?ve prosecutors and a veritable army of
paralegals, other attorneys and support staff) take nearly 1000 days to bring the accused to trial?

133. The Government also cites United States v. Cole, 3 M.J. 220, 227 (C.M.A. 1977) for the
proposition that ?The complex nature of a given case will serve as the sole justi?able basis for
?nding extraordinary delay, if the complexity was the proven cause of the delay.? The
Government states that the Court in Cole found ?[b]ecause many of the witnesses had departed
Fort Sill after AIT graduation, the dif?culty of identifying and gathering material witnesses
was ?extraordinary.? Again, what the Government fails to tell the Court is that in that case one
involving what the defense in that case called ?overwhelming complexity? the accused was
brought to trial in 97 days, less than one-tenth of the time that it took the Government to bring
the accused to trial in the instant case. Id. at 227.

134. Further, the Government relies on United States v. Harley, 2011 WL 2782023 (A.C.C.A.
2011) for its ?complexity justi?es the inordinate delay? argument. See Government Response, p.
69. In Hatley, ?[t]he govemment?s asserted reasons for further delays were to complete the
prosecutions in multiple cases arising from the murders, which involved as many as eighteen
potential immunized witnesses and sixteen co-accuseds. . Id. at The Court indicated that
?[t]he complexity of a case, both in terms of the necessity for investigation and the number of
witnesses involved, is a legitimate basis for delay.? In that case, however, the elapsed time at
issue was approximately 7 months (September 2008-April 2009). Again, if the Government in
Harley could bring an accused to trial in a complex case which ?involved as many as eighteen
potential immunized witnesses and sixteen co-accuseds? in approximately 200 days, surely the
Government in this case could have brought the accused to trial prior to Day 1000.

135. The Court in United States v. Duncan did not allow the Government to invoke generalized
assertions of ?complexity? to get out of its speedy trial obligations. In Duncan, the Court was
also dealing with a complicated case involving classi?ed information. It found that the delay at
issue (275 days) was not causally linked to the fact the case was complex or highly classi?ed. It
saw that many of the reasons for delay were ?tactical concerns amounting to no more than a
desire to forestall the [accused?s] right of discovery and his right of cross-examination at the
pretrial investigation and at his court-martial.? So too was the case here. At every turn, the

48

32209

Government made tactical and bad faith decisions to deny the accused his fundamental right to a
fair trial, including his right to a speedy trial.

136. Every task in this case from classi?cation reviews, to request for approvals, to the 706
Board, to Brady discovery, to general discovery was completed at a snail?s pace. The
Government treated this case as though it were on a Sunday drive, with no care in the world with
respect to PFC Ma.rming?s speedy trial rights. Military courts do not countenance such a cavalier
disregard for the statutory and constitutional rights afforded to an accused. In United States v.
Laminman, 41 M.J. 518 (C.G. Ct. Crim. App. 1994), cited by the Government at p. 68, the Coast
Guard Court of Criminal Appeals approved of the military judge?s decision to dismiss the case
on speedy trial grounds. In her ?ndings, the trial judge concluded that a failure to send the
Investigating Of?cer?s report by courier, rather than by ordinary mail, ?constituted a lack of
reasonable diligence and evidence of a non-diligent, or negligent, attitude on the part of the
Government during the case.? The Coast Guard Court of Criminal Appeals stated:

At first glance, this conclusion might appear to place an undue emphasis on two
days out of an overall delay of 109 days, for which the Government was
accountable. It must be stated, however, that at the time the investigative report
was completed the Accused had already been con?ned for 90 days, or as the
judge put it, ?about 64 days of con?nement, even by the govemment?s
calculation?. R. 4 (April 26, 1994). In the eyes of the trial judge, expedited
action was called for at that point, and we agree that such a conclusion is entirely
reasonable and supported by the evidence. When an accused has been con?ned
for a period, as in this case, reasonable diligence may call for expeditious
processing.

If the failure to transmit the report by a means more rapid than ordinary mail were
the only indication of lack of reasonable diligence, we would have to ?nd the
dismissal of charges clearly erroneous. In our view, however, the judge saw that
shortcoming as merely re?ecting an attitude by the Government inconsistent with
reasonable diligence, which permeated the entire process. In effect, that is what
she said: I think that the nondiligent attitude of the government is really
exempli?ed by the six-day transmittal of the 32 Expeditious handling
would be indicated at that point with due regard for the fact that the accused was
con?ned at the time. Now that two days I am talking [about] in and of itself is not
so signi?cant, but it just shows you that the government had no regard for the fact
that the man was con?ned. R. 6 (April 26, 1994).

Id. at 522 (emphasis supplied). This quote could not be more apt if spoken about the instant
case. The Government had an ?attitude inconsistent with reasonable diligence, which
permeated the entire process? and ?no regard for the fact that the man was con?ned.? Id.

What?s worse is that, in PFC Marming?s case, the lack of reasonable diligence does not appear to
be sheer laziness on the part of the prosecution; rather, it is the result of a combination gross
negligence and bad faith.

49

32210

CONCLUSION

137. For the reasons discussed herein, and in the Defense?s Motion to Dismiss for Lack of a
Speedy Trial, the Defense requests that this Court dismiss all charges with prejudice.

Respectfully submitted,



EDWARD COOMBS
Civilian Defense Counsel

50

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32211

Subject: RE: 305(9) Request

usimicmw

Date: Thu,Jan 13,2011 1:"Morrow Ill, JoDean, CPT USA JFHQ-NCRIMDW
"carlile. Monica L. SFC USA JFHQ-NCRIM DW



cc. "Matthew

b.army.ml|>

David.

Thanks. Ifyou can please send me Capt Moore's SSN so we can move on his
clearance.

Ashden

Ashden Fein

CPT, JA

Chief, Military Justice
U.S. Army Military District of Washington (MDW)








Sent: Thursday, January 13, 2011 11:51 AM

To: Fein, Ashden CPT USA SJA lvorrow JoDean. CPT USA
Carlile, Monica L. SFC SJA

Cc: Matthew kemkes: Paul Bouchard

Subject 305(9) Request

Ashden,

I have attached the renewed speedytrial request listing the Garrison
commander instead ofthe GCIVCA have also attached a request for release
from con?nement under R.C.M. 305(g) along with enclosures.

mentioned before. the defense believes thatthere is no legitimate

government objective for the current con?nementconditions. Given the
consistentrecommendations of Capt. Hocter and PFC Manning's model behavior,
there is no justi?cation for PFC Manning to continue to be held in maximum
custodyand under POI watch. Please presentthis request to the Garrison
commander.

The defense requests that the government respond in writing to the 305(9)
request. Additionally, the defense requests thatto government obtain the
requested documentation in the 5 January 201 1 memorandum to CWO4 Averhart,
and anyother supporting documentation from the Quantico Brig concerning PFC
Manning's classification and assignment. The defense request that government



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provide this documentation to the defense.

32212
Please feel free to contact me if you ho. .e any questions or concerns.

Best
Dawd

David E. Coombs. Esq.

Law Of?ce of David E. Coombs

45 North Main Street, 5th Floor

Fall River. MAO2720

Direct Dial: (401) 744-3007

Of?ce: (508) 674-6006

Fax (508)324-9896





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

Copyright? 2003-2012. All rights reserved.

Fein&aEmlPart=0

:1 Wo?ispace We?mail P?nl
?lm Qloge Wlndow
32213

Subject: Re: 706 Board

From: "Fein, Ashden CPT USA JFHQ-NCRIMDW

Date: Sat, Dec 18, 2010 2:52 pm
To_ "Morrow Ill, JoDean, CPT USA JFHQ-NCRIMDW

Sir. Don't know all their names but will be getting them this week for clearances and read-ons. Once you get your
SF86 completed, please send. Thx.

Ashden Fein
CPT, JA



From:

To: Fein, Ashden CPT USA Morrow 111, JoDean, CPT USA SJA
Sent: Sat Dec 18 14:43:59 2010

Subject: 706 Board

Ashden,

Other than Dr. Sweda, who else is on the 706 board?

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

45 North Main Street, 5th Floor

Fall River, MA 02720

Direct Dial: (401) 744-3007

Office: (508) 674-6006

Fax: (508) 324-9896

i .c

Notice: This transmission, including attachments, may contain confidential

attomey-client infom?ation 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 infomwation may be unlawful and Copyright 2003-2012. All rights reserved.

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Erin! I
32214

Subject: RE: MRE 505(h)(1)

From: "Fein, Ashden CPT USA JFHQ-NCRIMDW
Date: Tue, Feb 15, 2011 11 :07 pm

"Morrow Ill, JoDean, CPT USA JFHQ-NCRIMDW "CarIile,
cc_ Monica L. SFC USA JFHQ-NCRIMDW "Matthew kemkes"


Attach: 11-Feb-15-Excludable Delay Menirandum (ManningB).pdf

Dawd.

We are still working with INSCOM to secure the facility and I hope to have an
answer tomorrow. We will immediately start looking atyour proposal for the
505(h)(1) issue and lwill email to setup a phone call. Prior to that phone

call, I offer one proposition which is that the security experts conducted

the PCR and came back without ORCON information. Therefore we should operate
from this point forward that none ofthe information is ORCON. unless there

is evidence to the contrary.

Attached is the convening authoritys action on excludable delay.


Ashden

Pshden Fein

Chief, Military Justice
. .Arm Milita Districtofwashin ton MDW





From: coombs @armycourtmartia|defense.com

[mailtozcoom

Sent: Tues day, February 15, 2011 10:54 AM

To: Fein, Ashden CPT USA SJA

Cc: Morrow Ill. JoDean, CPT USA Carlile, Monica L. SFC USA
Matthew kem kes;

Haberland,John CPT MIL Hall Cassius Mr

I
Subject: [Suspected RE: MRE 505(h)(1)
Importance: Low

Ashden,

Thank you for providing me with the Government's response. Based upon our
earlier discussion. i believe the CAcan determine the "need to know" for the
board. The only exception, as you have identi?ed, would be ifanyofthe
information is ORCON. In order to determine this and ensure that PFC Manning
can discuss anything he wants with the Board on 1 March. lwould like to meet
with him in a SCIF on 24 Feb. I could be in D.C. by Noon and be at a SCIF

0. secureserv er.net/v 1/3

10/16/12

I

anytime after 1:00.

Msuming none ofthe information he p.ovides to me is ORCON, then the only
issue we may have is the 505(h)(1) requirement. Based upon the Government's
response, there appears to be an easywork around on this issue. Ifthe
government will concede that it is waiving any right to assert 505(h)(5)
penalties for the defense's failure to comply with the requirements of

505(h)(1 and (4), then I don't believe we will have an issue.

Please let me know if the government can arrange for the 24 Feb meeting in a
SCIF and if you agree to waive the 505(h)(5) penaltyfor nondisclosure. Feel
free to call me ifyou have any questions.

Best
Dawd

David E. Coombs. Esq.

Law Office of David E. Coombs

45 North Main Street, 5th Floor

Fall River, MA02720

Of?ce: 1-800-588-4156

Fax (508) 324-9896



??Con?dentiality Notice: This transmission, including attachments. may
contain con?dential attorney-client information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notifythe sender and delete all copies. Unauthorized disclosure, copying or
use otthis information maybe unlawful and is prohibited.?

-- Original Message
Subject: NRE 505(h)(1)
From: ?Fein, Ashden CPT USA

Date: Mon. February14. 2011 4:11 pm

To:

Cc: ?Morrow Ill. JoDean, CPT USA
. "Car|i|e, Monica L. sr=c USA
"Matthew

kem kes"




"Haberland, John CPT
Dawd,

I hope you had a relaxing weekend. Attached is the Prosecution's
response to

your MRE 505(h)(1) request in context of the RCM ?/06 board. Please
review and

let us know your updated position and wayfon/vard. Thank you.

Ashden

Ashden Fein

CPT, JA

Chief. Military Justice

U.S. Army Military District ofwashington (MDW)

secureserver.net/v Fein&aEmlPar1=0

32215

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Copyright 2003-2012. All rights reserved.

32216

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Subject

From:
Date:
To:

David.

useaU

Ashden

Ashden





er.net/v iew_print_ ,multi.php?uidArray =1 26|l BOXA

Although we do not consider this a waiver because we do not believe MRE
505(h) applies in this situation, we do acknowledge that by speaking with the
RCM 706 board, the accused will not be in violation of 505(h); thus, the
penalties under MRE 505(h)(5) would not be triggered in this situation.

Based upon your requestto not conduct your meetings with your clientorthe
RCM 706 interview at the FIU SCIF, we have received formal authorimtion to

the facilityfor early next week and will solidifythe schedule and logistics
for using this facility bythe middle of next week. Please send me your
schedule for the next three weeks (speci?cally when you will be available to
be down in DC), so that we can determine the soonestdate to schedule your
meeting and then the RCM 706 board's interview.

We are continuing to work on your multiple discovery requests. In addition,

we expect to have the additional charge sheet presented to the command in the
near future for the commander to make a determination whether to prefer
additional charges or not. I do plan on talking to you priorto the

additional charge sheet being served on your client, ifone is warranted.

Have a good weekend.


Chief, lvilitary Justice
Milita Districtofwashin ton MDW



From: coombs @armycourtmartialdefense.com

Sent: Tuesday. February 15. 2011 10:54 AM

To: Fein. Ashden CPT USA SJA
Cc: Morrow Ill. JoDean, CPT Carlile, Monica L. SFC USA 5
Matthew kemkes
Haberland,John CPT MIL Hall Cassius Mr FMMC

Subject: [Suspected RE: MRE 505(h)(1)
Importance: Low

32217

RE: MRE 505(h)(1)

"Fein. Ashden CPT USA

Fri, Feb 25, 2011 3:30 pm



"Morrow Ill, JoDean, CPT USA FHQ-NCRIMDW il>, "Car|lIe,


Monica L. SFC USA JFHQ-NCRIMDW "Matthew kemkes"

'Haberla nd, John CPT MIL



.8. Army INSCOM facility. As of today, we are scheduling a recon of

Fein

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32218

Subject: RE: RCM 706-Additional Charges (US v. PFC BM) (UNCLASSIFIED)

From: "Fein, Ashden CPT USA JFHQ-NCRIMDW
Date: Thu, Mar 03,2011 10:12 pm



Dr. Sweda. We conducted the leader recon of the SCIF and found the proper
conference and building just north of Ft. Belvoir. in Alexandria. Willyou

and the board be able to conduct the interview on a Saturday/.7 Although we do
have access to the building during the week, we would like to minimize PFC
Manning's exposure to the public during his transportation and ultimately his
travel throughouta USG contracted building during the process. We would
also like to use this building on a Saturday, so that the board and PFC
Manning are more relaxed going to an area that will be pedestrian-free.

Please let me know whether this is possible. Thank you.


CPT Fein



Ashden Fein



Chief, Military Justice
Milita Districtofwashin ton MDW



i




Sent: Thursday, March 03. 2011 2:07 PM

To: Fein, mhden CPT SJA

Cc: Benesh, Samantha MAJ MIL USA MEDCOM
Morrow Ill, JoDean, CPT
SJA Matthew kemkes; Haberland, John CPT MIL

I USA: Carlile, Monica SFC MIL USA Hemphill, Marla LTC MIL USA MEDCOM
BAMC: Moore. Kevin D. CAPT

Subject: RE: RCM 706-Additional Charges (US v. PFC BM) (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

Sir and ALCON:

We have tentatively set a date of 11 March (Friday) for the next interview at
the SCIF, beginning at0830. Tell us if this will work.

Fein&aEmlPart-0



10/16/12 Workspace Webmail :1 Print

vlr,

Mchael Sweda, ABPP (Forensic)
Board-Certi?ed Forensic
Chief, Forensic Service



Center

"The United States themselves are essentially the greatest poem.
Past and present and future are notdisjoined butjoined."


From: Fein. Ashden CPT USA SJA


Sent: Wednesday. March 02, 2011 11:15 PM

To: Sweda, Michael Dr USA MEDCOM WRAMC

Cc: Benesh, Samantha MAJ MIL USA MEDCOM
Morrow JoDean, CPT
Kemkes, Matthew MA) MIL
Haberland, John CPT MIL Carlile, Monica SFC MIL Hemphill,
Marla LTC MIL USA MEDCOM BAMC

Subject: RCM 706-Additional Charges (US v. PFC BM)

Importance: High

Dr. Sweda,

Attached is a copyof additional charges in the case of U.S. v. PFC Manning.
On behalfofthe convening authority, please include these charges in the
board's evaluation. /36 oftoday, both charge sheets are preferred and should
be considered.

Tomorrow morning, we are conducting a leader recon for the SCIF location for
the board to interview PFC Manning. After the recon, we will start
coordinating the defense counsel's meeting with the accused and then when we
can plan the board's interx.-low. After we set the date for Mr. Coom bs to meet,
we will ask the board for times to meet and then will coordinate.

Thank you.


CPT Fein

Ashden Fein



Chief, MilitaryJustice

Milita Districtofwashin ton MDW



Classi?cation: UNCLASSIFIED

er.net/v Fein&aEmlPart=0

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32220

Subject: RE: SCIF
From: "Fein, Ashden CPT USA
Date: Thu, Mar 03, 2011 10:22 pm

To:



David. Below are answers or comments to your emails today.

1. We completed the leader recon of the SCIF location and secured an

ideal location. It's ideal because it's in a building thatwill provide PFC
Manning with verylittle exposure to third parties and is large enough to
accommodate the defense team and the RCM 706 board. The location is just
north of Ft. Belvoir, in Alexandria. We are planning on using Saturdays for

the SCIF access to minimize the 3d party pedestrian traf?c, because this
facilityis shared by the USG although belonging to the US Army INSCOM. The
latrines are nearby and the access procedures will be easier for you and your
team. compared to other locations.

2. We will schedule PFC Manning to be at MAJ Kemkes of?ce the Friday
before the SCIF meeting. We expect to have the Saturday schedule tomorrow and
will immediately contactyou to ?gure outwhen you will be available to come

down.

3. Please send us who, from the defense team, will be participating in

the SCIF meeting with PFC Manning.

4. We are working on your expert request. The convening authority has

been TDY and on leave. although we are in contactwith him. We are working
with the medical folks to determine the availability ofan expert, so thatwe

can present the request to the convening authority. We expect to have an
answer by the middle of next week, which should be well before the RCM 706
board resumes its work- based on the SCIF arrangements.

5. We will work to determine the reason for PFC Manning being required

to ?strip naked atthe end of the day?.

6. We will work to determine what the situation is concerning the

wireless headset telephone. is this only when you and the defense team
calls, for all his calls?

1 Ashden

Ashden Fein

CPT, JA

Chief, Military Justice

U.S. Army Mlitary District of Washington (MDW)



Mess
From:
[mailtozcoom
Sent: Thursday. March 03, 2011 8:55 PM

I To: Fein. Ashden CPT SJA

secureservernetlv A 1/3

10/16/12

Workspace Webmail Print
Cc: Carlile, Monica L. SFC Matthew kemkes; Morrow Ill,

JoDean, CPT 32221

I
Subject: [Suspected SCIF
Importance: Low

Ashden,

Any update on when I will be able to use a SCIF to speak with PFC Manning?
Also, once we identifythe date, I would like to have PFC Manning pulled out
the day before to meetwith me at MN Kemkes' of?ce.

Finally, lwanted to alert you to a couple of issues with the con?nement
facility. First, theyare requiring Manning to strip naked at the end of the

day and then to stand at attention naked during the 0500 DBS review. I can't
imagine the reason for this to happen. Second. the facility has been using a
wireless headset for his telephone conversations. Besides being insecure.
the quality ofthe connection is compromised.

Best
Dawd

David E. Coombs. Esq.

Law Of?ce of David E. Coombs

45 North Main Street, 5th Floor

Fall River, MA02720

Of?ce: 1-800-588-4156

Fazc (508) 689-9282





Notice: This transmission, including attachments, may
contain con?dential attorney-client information and is intended for the
person(s) or company named. Ifyou are not the intended recipient. please
notifythe sender and delete all copies. Unauthorized disclosure, copying or
use ofthis information may be unlawful and is prohibited.*?

Original Message --
Subject: Charge Sheet
From: "Fein, Ashden CPT

Date: Wed. March 02. 2011 3:57 pm

To:

Cc: 'Carlile, Monica L. SFC

"Matthew kemkes"
Morrow Ill, JoDean. CPT USA








David. Attached is the charge sheet.

/tshden

Mhden Fein

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CPT, JA

Chief, Mi|itaryJustice

U.S. Army Military District of Washington



Copyright 2003-2012. All rights reserved.





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Subject: SCIF and Brig
From: "Feln, Ashden CPT USA JFHQ-NCRIMDW
Date: Sat, Mar 05, 2011 11:47 am

To:



. -

David. Good morning. As per our previous conversation and emails, we
received authorization to use the SCIF on Saturdays to minimize the accused's
exposure to third parties. The SCIF is available any Saturdayafter today.

Please look atthe calendar and let us know when the soonest Saturday you can
be here. so that we can schedule the conference room, security detail, the
accused's meals, and the Friday before meeting at Myer. Once you send that
information, then we will coordinate the RCM 706's meeting in the SCIF.

We spoke with the Brig about the removal of the accused's underwear at night.
His underwear was taken from him because ofa speci?c statement that he made
to Papakie atthe Brig. After he was served his new charges and MAJ

Kern kes left the Brig, the accused asked why all of his items were taken at
night with the exception ofhis underwear under POI status. According to the
Brig of?cials. the accused then talked about the elastic band in his

undenivear and how that would be "probably the most dangerous piece" of
clothing or words to thateffect. Papakie believed that the accused was
insinuating that he could harm himselfwith the elastic band on his underwear
and discussed the issue with the accused. After this conversation, the Brig
stafftook this threat seriously and believes thatthe accused may have had
recent thoughts or ideas as to the uses of the elastic band from his

underwear to harm himself. The Brig staff removed his underwear to ensure
that he does not harm himself. The next time you speak with your client,

please ensure that he understands thatany comment that could be reasonably
construed as an intimation that he might harm himself, will be taken very
seriously by the Brig staff, because their primary mission is to ensure the
accused's well being and safety.

In addition, the accused was instructed to cover himself with his blanket
during the morning "stand-to." Despite the Brig staff allowing him to
cover-up during this morning process, he elects to stand naked in his cell
rather than to cover himselfwith his blanket.

COL Malone was on emergencyleave the day the accused was served with
additional charges; however he came back yesterday and visited with the
accused. Also, COL Malone is still working the accused's request to have a
female mental health provider.

We are still working on the portable phone issue you brought up this past
week. Despite the qualityof the phone call, there is no monitoring ofany
communications between members of the defense team and the accused.





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32224

Mhden

Ashden Fein



Chief, Military Justice

Milita Districtofwashin ton MDW



Copyright? 2003-2012. All rights reserved.

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32225
Subject: Re: [Suspected RE: SCIF and Brig
From: "Fein. Ashden CPT
Date: Sat, Mar 05,2011 5:35 pm

To:




David. We will need until monday morning to con?rm with the command the security detail. We should know by
1200 on monday.

Ashden Fein








From:
To: Fein, Ashden CPT USA SJA

Cc: Carlile, Monica L. SFC USA Matthew kemkes; Morrow JoDean, CPT USA JFHQ-



Subject: [Suspected RE: SCIF and Brig

As hden,

My facts about what was said and how it was said are somewhat different than what was
provided to you. More importantly, COL Malone saw PFC Manning on Friday and assessed him as a
low risk and requiring only routine outpatient follow-up. Specifically, he determined that there
was no need for admission for closer clinical observation. Despite this, the Brig
maintains they are stripping him at night for his own protection. It appears that he is in a Catch-
22. If he does everything he is told to do, the Brig starts to wonder what are they missing. If he
does anything out of boredom or starts to question the absurdity of his treatment, then they
determine this is a threat and overreact.

Iwould like to meet with Manning on the 11th and 12th. Can you arrange everything with this
short of notice? If not, then the 25th and 26th of March is my next window. Let me know ASAP
and I will make my travel arrangements.

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

45 North Main Street, 5th Floor

Fall River, MA 02720

Office: 1-800-588-4156

Fax: (508) 689-9282



Fein&aEmlParl=0



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32226

Subject: RE: [Suspected RE: SCIF (UNCLASSIFIED)

From: "Fein, Ashden CPT USA
Date: Wed, Mar 09,2011 4:21 pm

To:



..

David. Thank you. Iwill send an email to the board to determine how long
theywill need. MTF.

Ashden

Ashden Fein
CPT, JA
Chief, Military Justice





From:

Sent: Wednesday, March 09,2011 3:33 PM

To: Fein, Ashden CPT USA SJA
Cc:Car1ile. Monica L. SFC Matthew kemkes; Morrow
JoDean, CPT USA
Haberland,John CPT MIL USA

Subject: RE: [Suspected SCIF (UNCLASSIFIED)

Importance: Low

Ashden,

There is also the option that I could meet with PFC Manning starting at 0800
on Saturday. The board could start its meeting with PFC Manning at 1400 on
Saturday. I believe that this allocation oftime would be sufficient given
mydiscussions with mysecurity experts.

Best
Dawd

David E. Coombs. Esq.

Law Of?ce of David E. Coom bs

45 North Main Street. 5th Floor

Fall River, MA02720

Of?ce: 1-800-588-4156

Fax (508) 689-9282



aiI10.secureserv er.net/v Fein8.aEmIPart=0 1/10

10/16/12 Workspace Webmail Print







??Con?dentia|ity Notice: This transmission, including attachments, may
contain con?dential attorney-client int .tion and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying or
use ofthis information maybe unlawful and is

Original Message
Subject: RE: [Suspected SCIF (UNCLASSIFIED)
From: "Fein, Ashden CPT USA

Date: Wed, March 09, 2011 3:11 pm

To:

Cc: "Carlile. Monica L. SFC USA

"Matthew kemkes"
ow Ill, JoDean, CPT USA

David. We are working on setting up the SCIF for Fridaythe 25th,
anhough

this will likely cause your client to be seen by 3d parties, which we
still

rather avoid by using a Saturday without additional delays. Thank
you.

Ashden

Ashden Fein

CPT, JA

Chief, Military Justice

U.S. Army Military District ofwashington (MDW)



From: coombs @armycourtmartialdefense.com


Sent: Wednesday, March 09, 2011 2:12 PM

To: Fein, Ashden CPT SJA

Cc: Carlile. Monica L. SFC Matthew kem kes;
Morrow

JoDean. CPT USA SJA:
Haber|and,John CPT MIL USA

Subject: RE: [Suspected RE: SCIF (UNCLASSIFIED)

Importance: Low

Ashden,

I have worked with the government on trying to getthe earliest
possible

Fein&aEmlPart=0



32227

2110

10/16/12 Workspace Webrnail Print

date. I was also the one who initially sunqested (on 5 Mar) that we
meet on

a Saturdayas opposed to a weekdayn. order to accommodate the
governments

concerns regarding other personnel atthe SCIF. Prior to my
suggestion, you

were looking at trying to schedule multiple days in the evening at
the SCIF.

Any needed delay is not due to the defense.

As additional evidence ofmydesire to be accommodating, I would be
happyto

meet with PFC Manning in the SCIF on Friday the 25th. lwould ?rst
like to

see him at Fort Myer in the morning. We could then go to the SCIF
starting

at 1500. /56 long as we could stay at the SCIF until we are ?nished.

I am

willing to make that adjustment. This would allow the board to meet
with PFC

Manning on the 26th.

Best
Dawd

David E. Coombs. Esq.

Law Office of David E. Coombs

45 North Main Street. 5th Floor

Fall River. MA02720

Of?ce: 1-800-588-4156

Fax (508)689-9282




?Con?dentiality Notice: This transmission, including attachments.
may

contain con?dential attorney-client information and is intended for
the

person(s) or companynamed. Ifyou are not the intended recipient,
please

notifythe sender and delete all copies. Unauthorized disclosure.
copying or

use ofthis information may be unlawful and is

Original Message --
Subject: RE: [Suspected RE: SCIF (UNCLASSIFIED)
From: "Feln, Ashden CPT

Date: Wed, March 09, 2011 1:59 pm

To:

Cc: "CarIile, Monica L. SFC

"Matthew kem kes?

rrow JoDean, CPT USA







JFH -NC

nd,John CPT MIL

Fein&aEmIPart=0

32228

3/10

10116112 workspace wegmau

David. We determined last week that the SCIF outside of FIU would
bestbe

used on a Saturday and on mar) you requested the meeting
to occur

on Saturday(12 Mar). We spent Monday morning coordinating this
meeting and

was able to get back to you. but not before you scheduled your
?ights for

two weeks from now. We are cognizant of your desire to minimize
costs. but

we are trying to minimize anydelays. We were readyto go this
weekend (12

Mar) and you asked us to push your meeting two weeks to the right.

32229

The RCM 706 board is soonest available for a Saturday meeting. that
weekend

(26 Mar). We can request them to meet the following weekend (2 Apr),
but

this request needs to be submitted to the convening authority, based
on his

suspense to the RCM 706 board.

The RCM 706 board owes the convening authoritya delay request based
on the
suspense and lwant to clarifywith them the reason for this delay.

Ashden

Ashden Fein

CPT, JA

Chief. Military Justice

U.S. Army Nilitary District of Washington (NDW)



--?--Original

From:


Sent: Wednesday. March 09, 2011 1:45 PM

To: Fein, Ashden CPT USA SJA

Cc: Carlile. Monica L. SFC USA Matthew kemkes;
Nlorrow

JoDean, CPT USA
Haber|and,John CPT MIL USA

Subject: RE: [Suspected RE: SCIF (UNCLASSIFIED)

Importance: Low

mhden,

ldon't understand your message. We have discussed the issue ofthe
25th and

26th being the dates thatl am meeting with PFC Manning. I sent the
governmentseveral emails on this topic last month attempting to get
a

con?rm ed date for myvisit in order to make the necessarytravel
arrangements.

I understand, that itapparently took some time to con?rm access to

er.net/v =104|l BOXA Fein&aErnIPart=O 4/10

a SCIF.

However, despite myrepeated reque didn't hear anything from
the

government until it became cost prohibitive to purchase a ticket. It
was my

desire to meet with PFC Manning this week as opposed to the end of
the month.

The delayin the process is not due to the defense.

The 706 board has indicated that the 26th is the earliest thatthey

will be

able to meetwith PFC Manning. Please request the board to determine
ifthey

could see him the following week.

Best
Dawd

David E. Coombs, Esq.

Law Of?ce of David E. Coombs

45 North Main Street, 5th Floor

Fall River. MA02720

Of?ce: 1-800-588-4156

Fax (508) 689-9282

coom


Notice: This transmission, including attachments,
may

contain con?dential attorney-client information and is intended for
the

person(s) or company named. lfyou are not the intended recipient.
please

notify the sender and delete all copies. Unauthorized disclosure.
copying or

use ofthis information maybe unlawful and is prohibited.?

-- Original Message
Subject: RE: [Suspected RE: SCIF (UNCLASSIFIED)
From: "Fein Pshden CPT

Date: Wed. March 09, 2011 1:22 pm

To:

Cc: "Carlile, Monica L. SFC USA

"Matthew kemkes"

rrow Ill. JoDean. CPT USA









d,John CPT ML

Dawd,

Do you still want to meetwith your client before the RCM 706
interviews him

in the lfso and because you arranged for 25 and 26 Mar 11,
please

send a us to the convening authorityto delaythe RCM

32230

706. .

otherwise we will need to schedule ti EM 706 to meet on 26 Mar 11.
as the

soonest reasonable Saturdayto meetwith the accused. We want to
ensure the

ROM 706 board is diligently moving forward and notunnecessarily
delaying

this process, outside the scope ofthe convening authority/s order.
Thank

YOU.

32231

Ashden

Ashden Fein



Chief, MilitaryJustice

U.S. Arm Mlita Districtofwashin ton MDW



Message-?-?-

From:

[mailtozcoombs @armycourtmartia|defense.com]

Sent: Tuesday. March 08, 2011 9:20 AM

To: Fein, Ashden CPT USA SJA

Cc: Carlile, Monica L. SFC USA Matthew kemkes;
Morrow Ill,

JoDean, CPT USA
Haber|and,John CPT MIL USA

Subject: RE: [Suspected RE: SCIF (UNCLASSIFIED)

Importance: Low

Ashden,

Let's plan on the 25th and 26th. I have arranged for mytravel and
coordinated with my experts. Once you determine the location, please
let me

know.

Best
Dawd

David E. Coombs, Esq.

Law Office of David E. Coombs

45 North Main Street. 5th Floor

Fall River, MA02720

Of?ce: 1-800-588-4156

Fax (508) 689-9282



Notice: This transmission, including attachments.
may

contain con?dential attomey?c|ientinformation and is intended for
the

er.netIv Fein&aEmlPart=0 A 6/10



VVUUllI'dll J2

person(s) or company named. If you are not the intended recipient.
please

notify the sender and delete all copies. cnauthorized disclosure,
copying or

use ofthis information may be unlawful and is prohibited.?

32232

Original Message

Subject: RE: [Suspected RE: SCIF (UNCLASSIFIED)

From: "Feinl Ashden CPT USA

Date: Mon, March 07,2011 12:00 pm

To: "Haberland.John CPT MIL




David. The arrangements were ?nalized this morning, immediately
before your

email. We needed to wait until this morning to ?nalize the
coordination

with the differententities. All the systems are in place for this
Fnday

and Saturday, ifyou want to go then, but we understand minimizing
cost is a

factor for you.

Ashden

Ashden Fein

CPT, JA

Chief, Military Justice

U.S. Army Mlitary District of Washington (MDW)





From:


Sent: Monday, lvarch 07.2011 11:41 AM

To: Haberland.John CPT MIL USA

Cc: Carlile, Monica L. SFC Matthew kemkes;
Morrow I
JoDean, CPT USA
Fein.

Ashden CPT USA SJA

Subject: [Suspected RE: SCIF (UNCLASSIFIED)
Importance: Low

John,

Feln&aEmlPart=0 7/10



ll VVUYKSIJHUU VVUUHIHII II

When were the preparations ?nalized? Had I know yesterday. Icould
have

arranged for this Friday. The price oft?, ..s wentup dramatically
today.

Given this development, the 25th and 26th are the earliest available
dates.

I have just completed the travel arrangements.

32233

Best,
David

David E. Coombs. Esq.
Law Office of David E. Coombs
45 North Main Street, 5th Floor
Fall River, MA02720
Of?ce: 1-800-588-4156
Fax? (508) 689-9282



Notice: This transmission, including attachments.
may

contain con?dential attorney-client information and is intended for
the

person(s) or company named. lfyou are notthe intended recipient,
please

notify the sender and delete all copies. Unauthorized disclosure,
copying or

use ofthis information may be unlawful and is prohibited.'?

-- Original Message
Subject: RE: SCIF (UNCLASSIFIED)

From: "Haber|and, John MIL

Date: Mon, March 07, 2011 11:08 am

To: "Fein./is hden CPT USA


Cc: "Car|ile,Monica L. SFC USAJFHQ-NCRIMDW

'Kemkes? Matthew MN
MIL

All



Classi?cation: UNCLASSIFIED
Caveats: FOUO
Sir,

We will plan in accordance with your request. We are also prepared
to move PFC Manning this Friday and Saturday butwill waituntil the
25th and

26th ifthat is what you prefer.

Very Respectfully.

Fein&aEmIPart=0 8/10





man?;: Prlni
CPT John B. Haberland

Regimental Judge Advocate
3rd U.S. Infantry Regiment The Old (Juafd

From:


Sent: Monday, March 07. 2011 11:06 AM

To: Fein,Ashden CPT SJA

Cc: CarIi|e,Monica L. SFC SJA Kemkes. Matthew MAJ
MIL Morrow USA SJA:

Haberland. John CPT MIL USA

Subject: SCIF
Ashden,

Given the late notice, let's mow the date to the 25th and 26th for
the Fort Myer and SCIF visit. Ijust checked ?ights for this week.
The

cost has gone up to over $1,300.00. I can geta ?ighton the 25th
for

$270.00.

Best
Dawd

David E. Coombs, Esq.

Law Office ofDavid E. Coombs

45 North It/bin Street. 5th Floor

Fall River, MA02720

Of?ce: 1-800-588-4156

Fax (508) 689-9282



??Con?dentia|ity Notice: This transmission, including attachments.
may contain con?dential attorney-client information and is intended
for the

person(s) or company named. If you are not the intended recipient,
please

notify the sender and delete all copies. Unauthorized disclosure.
copying or

use of this information maybe unlawful and is

Classi?cation: UNCLASSIFIED
Caveats: FOUO

32234

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Jpyright 2003-2012. All rights reserved. 32235

:llemai|1 0.secureserv er. netlv =1 04] I BOXA Fein&aEm |Part=0 10/10



32236

IN ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
RULING: GOVERNMENT

IN CAMERA AND EX PAR TE
MOTIONS FOR
AUTHORIZATION OF

Manning, Bradley E. FOR DOS AND FBI RECORDS
U.S. Army,

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

DATED: 18 October 2012



On 14 September 2012. the Government moved ex parte under Military Rule of Evidence
(MRE) 505(g)(2) and Rule for Courts-Martial (RCM) 70l(g)(2) for the Court to conduct an in
camera review of and authorize limited disclosure in the form of redactions for DOS and FBI
records. The Defense opposed

The Court reviewed the Government?s unclassified and classi?ed motions for redactions
to DOS and FBI records and conducted an in camera review of the original documents and the
proposed redactions. ln coming to this ruling, the Court has considered the factors requested by
the Defense in paragraph 7 ol? its 19 September 2012 response. The Court finds and rules as
follows:

DOS records: On 28 September, the Court granted the Government motion for MRE
505(g)(2) substitution by reduction for the "bucket 3? records. The Court granted the
Government motion for substitution by redaction for the ?bucket 2? records in
part, ?nding the vast majorit_v ofthe proposed redactions of the DOS documents in ?bucket 2?
were personally identifiable in formation (Pll) of individuals in the Persons at Risk Group and
were properly redacted IAW the Court?s 19 July 2012 Ruling: Defense Motion to Compel DOS
Discovery Motion to Compel The Court identified one potential categorical exception and
held an ex parle, in culncru elassi tied article 39(3) session with the Government on 2 October
2012 to address the potential eategoricail exception. A court reporter transcribed the classified
proceedings. On 17 ()ctober 20 I 2. the Government advised the Court that the redacted
information the Court required for release to the Defense was no longer redacted and was
available for disclosure to the Delensc. The Government motion for MRE 505(g)(2) substitution
by redaction is granted.

FBI records: A tier conducting the in camera review of the FBI records, the Court held
an ex parte, in camera classilied article 39(a) session with the Government on 12 October 2012
to address several concerns ol? the (?ourt with respect to some of the records proposed for
redaction. The Article 39(;t) session was transcribed by a court reporter and the Court?s concerns
are on record. On l7 October 2012. in 349. the Government disclosed one portion of the FBI

APPELLATE EXHIBIT
. PAGE REFERENCED:
PAGE OF PAGES





?le that the Court ordered disclosed to the Defense. The Court held a second ex parte, in camera
classified article 39(a) session with the Government on 17 October 2012 to address the
remaining concerns of the Court. That article 39(a) session was also transcribed by a court
reporter. All of the remaining concerns raised by the Court have been addressed by the
Government. The Government motion for MRE 505(g) substitution by redaction is granted. The
information redacted is not relevant to the accused or to the charged offenses or constitutes
attorney and other Government work product or administrative information.

The redacted DOS and 17 131 records meet the Government?s discovery obligations under

Brady and RCM 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 in the DOS and BI substitutions is not material to the
preparation of the defense to the extent necessary for production for discovery under RCM
703(f). The classified information in the redaction is not necessary to enable the accused to
prepare for trial.

No redacted information in the DOS or FBI records that has not been disclosed to the
Defense will be used by the (iovernment or by any Government witness during any portion of
the trial to include rebuttal and rule ofeompleteness.

The substitution for the DOS "bucket 2? records and the FBI records is sufficient 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 classified information and the protection of
specific national security information, particularly intelligence sources and methods and, for the
DOS records, the safety ofindividuals identified by DOS as persons at risk.

RULING: The motions by the Government to voluntarily provide limited disclosure under .
MRE 505(g)(2) for DOS and FBI records is GRANTEI).

Ordered this 18?? day ofOetober 2012.

R.
COL,
Chief Judge, 15? Judicial Circuit



32238

UNITED STATESOF AMERICA
RULING: Defense Motion:
Motion for Judicial Notice of
Adjudicative Facts - Finkel Book
And Public Statements

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

18 October 2012

Finkel Book:
1. On 3 August 2012, the Defense moved the Court to take judicial notice of David Finkel's
book The Good Soldiers, that it was published before publication of the video at issue in
specification 2 of Charge II, and the book contains audio from the video. The Government did
not oppose the Court taking judicial notice that the book was published before publication of the
video but did object to the Court taking judicial notice that the book contains a verbatim
transcript of the video. The Defense provided the Court with a Washington Post article dated 6
April 2010 by David Finkel describing an excerpt from his book but did not provide the excerpt
from Mr. Finkel's book.
2. On 30 August 2012, the Court ruled in AE 288 that the Court would take judicial notice of
Mr. Finkel's book and relevant excerpts from pages of the book if the Defense provided the
Court with the necessary information. The Court denied the Defense motion to take judicial
nofice that Mr. Finkel's book contains a verbatim description of the audio from the video
charged in Specification 2 of Charge II as linkages, argument, and legal conclusions regarding
the contents of Mr. Finkel's book and the audio in the video are properly presented to the fact
finder by the parties not by the Court.
3. The Defense has provided the Court with the video and relevant excerpts from Mr. Finkel's
book. The Court compared the excerpts with the video. Defense now moves the Court to take
judicial notice of Mr. Finkel's book, the date of publication, the provided excerpts, and that the
book quotes the video verbatim at several key points.
4. The Court adheres to its 30 August 2012 ruling. The Court will take judicial notice of Mr.
Finkel's book, the date of publication, and the provided excerpts. Comparisons between Mr.
Finkel's book and conclusions to be drawn from the comparisons are properly presented to the
fact finder by the parties not by the Court. The request to take judicial notice that the book
quotes the video verbatim at several key points is denied.
Statements by Public Officials
1. On 3 August 2012, Defense moved the Court to take judicial notice of statements made by
public officials and proffered the adjudicative facts judicially noticed would be relevant for
sentencing. The Government opposed.
1

&5(^

APPELLATE EXHIBIT
PAGE REFERENCED:
PAGE
OF
PAGES

32239

2. In their original motion, Defense proflered tbat the statement ofpublic officials tbat Defense
seeks to have judicially noticed as adjudicative facts are admissible as admissions byaparty
opponent under MRE 801(d)(2)(B)and(D). The Government opposed admission andjudicial
notice.
3. On 30 August 2012, the Defense supplied the Court with additional case-law in support of
their argument and additional bases for admission ofthe evidence to be judicially noticed. The
Court ordered supplemental briefs to be filed by the parties regarding the following issues:
a. Admissibility under MRE 801(d)(2)(B)and(D)addressing the new case-law
provided by the defense- Wbetherastatementb^aCongressman is admissible.
b. The applicability ofMRE 805 (Hearsay Within Hearsay)c. Whether the requested evidence is admissible as residual hearsay under MRE 807^
d. Whether each proposed statement offered for admission is offered for the truth ofthe
matter assertede. Admissibility ofnewspaper articles as business recordsf Whether there is an^ case law regarding takingjudicial notice of newspaper articlesg. The parties position regarding admissibility ofthe proposed public statements for
sentencing when the rules have not been relaxed and when the rules have been
rela^edIAWRCM1001(c)(3)
Also on 30 August 2012,the De^nse presented the Court witha28Jul^20101etterfi-om
Senator Carl Levin to Secretary ofDe^nse Robert Gates,al^August2010responseb^
Secretary Gates,and the portion ofthe Congressional Record oftbel^December2010hearing
before the Committee on the Judiciar^,HouseofRepresentatives on Espionage Act and the
Legal and Constitutional Issues Raised b^ Wikileaks tbat contained the opening statement b^
congressman John Confers, Jr..
4. On 13September 2012,the Delensefiledasupplementalbrief In it, the Delense provideda
24 April 2011statementb^ Pentagon Press Secretary GeoffMorrell and Special Envo^ for
ClosureoftheGuantanamoDetentionFaeilit^,Ambassador Daniel Fried, issued asanews
release on the web b^ the Department ofDefense (DoD). The Defense requested the Court take
judicial notice ofthis statement in lieu of the24 April 2011NewYork Times Article. Similarly,
the De^nse presented the Court witha27Jul^2010statementofPresident Barrack Obama
issued b^theWbite House Office ofPress Secretary. Defense moves the Court to take judicial
notice oftbis statement in lieu oftbe 27 Jul^2010BBC News article. The Defense further
moves the Court take judicial notice ofSenatorLevin's28Jul^20101etter and Mr.Gates'
response in lieu oftbel5October2010Associated Press and MSNBC articles and to take notice
of the 30 November 2010Defense.Gov news transcript ofaDoD News Briefing with Secretary
Gates in lieu ofthe 30 November 2010NewYorkTimes Article. Finall^,the Defense moves the
Court to take judicial notice ofSecretar^ ofState Hillary Clinton'slDeeember2010"Remarks
With I^a:^akhForeign Minister Saudaba^evAfterTbeir Meeting" released on the Departmentof
State website in addition to Secretary Clinton'scomments reported in thelDecember2010USA
Toda^ article "Clinton: WikiLeaks won'thurtU.Sdiplomac^",the4Deeember2010CNN
article "CIinton,WikiLeaks cables show diplomacy at work",4December2010NewYork

32240

Times article "FromWikiLemons, Clinton Tries to Make Lemonade",and4Deeember 2010
UPI article "Clinton on leaked documents: Sowhat7". The Government opposes but stipulates
that the statements at issue were made and stipulates to the admissibility ofthat portion ofthe
statements made b^ Pentagon Press Secretary Morrell and Special Envo^ for Closure ofthe
GuantanamoDetentionFacilit^Ambassador Daniel Fried, President Obama, and Defense
Secretary Gates in bisl^August20101etter. The Government further concedes tbat ifthe rules
sentencing are relaxed under RCM1001(c)(3)that all of the statements except those ofSecretar^
ofState Hillary Rodham Clinton would be admissible.
AGeoffMorrell,PentagonPressSeeretar^^"ItisunfortunatetbattheNewYork
Times and other news organi:^ations bave made the decision to publish numerous
documents obtained illegally b^ Wikileaks concerning the Guantanamo detention
facility. These documents contain classified inlc^rmation about current and ^rmer
GTMO detainees,and we strongly condemn the leaking ofthis sensitive information.
The Wikileaks releases include Detainee Assessment Briefs (DABs)writtenb^ the
Department ofDefense between 2002 and earl^2009. These DABs were written based
onarange ofinformation available then. The Guantanamo ReviewTaskForce,
established in Januar^2009,considered tbeDABs during its review of detainee
information. In some cases, tbcTask Force came to the same conclusions as the DABs.
In other instances, the ReviewTaskForce came to different conclusions,based on
updated or other available information. The assessments ofthe Guantanamo Review
TaskForce bave not been compromised toWikileaks. Thus, an^givenDAB illegally
obtained and released b^ Wikileaks ma^ or ma^ not represent the current view ofagiven
detainee. Both the previous and the current administrations bave made ever^ effort to act
with the utmost care and diligence in translerring detainees from Guantanamo. The
previous administration transferred 537 detainees-to date, the current administration has
transferred ^7. Both administrations have made the protection ofAmerican citizens the
top priority and we are concerned that the disclosure ofthese documents could be
damaging to these effi^rts. That said,we will continue to work with allies and partners
around the world to mitigate threats to theU.S.and other countries and to work toward
the ultimate closure ofthe Guantanamo detention facilit^,consistent with good security
practices and our values asanation."
B. President BaraekObama^"WhileI'mconcerned about the disclosure of sensitive
inlormation from the battlefield that could potentiall^jeopardize individuals or
operations, the fact is,these documents don'trevealan^ issues that baven'talread^
informed our public debate on Afghanistan. Indeed, tbe^ point to the same challenges
that led me to conduct an extensive review of our police last fall."
C. Defense Secretary Robert Gates^l^August2010Ietter-"Thank^ou for ^ourJul^
28, 20101etter regarding the unauthorized disclosure and publication of classified
military documents b^ WikiLeaks organization. Ishare^our concerns about the potential
compromise ofclassified information and its elfect on the safety ofour troops,allies,and
Afghan partners. After consulting with the Director ofthe Federal Bureau of
Investigation,Ibavedirectedatborough investigation to determine the scope of an^
unauthorized release of classified inlormation and identify the person or persons

32241

responsible. Ibave also established an interagency Information ReviewTaskForce, led
b^ the Defense Intelligence Agene^,to assess the content of an^ compromised
information and the impacts of such compromise. Our initial review indicates most of
the information contained in these documents relates to tactical military operations. The
initial assessment in no wa^ discounts the risk to national security-however, the review
to date has not revealed an^ sensitive intelligence sources and methods compromised b^
this disclosure. The documents do not contain the names of cooperative Afghan nationals
and the Department takes ver^ seriously thcTaliban threats recently discussed in the
press. Weassess this risk as likely to cause significant harm or damage to the national
security interests oftbe United States and are examining mitigation options. Weare
working closely with our allies to determine what risks our mission partners ma^ face as
aresult ofthe disclosure. There isapossibilit^ that additional military documents ma^
be published b^ Wikileaks and the Department is developing coursesof action to address
this possibility. The scope ofthe assessment and the nature ofthe investigative process
requireagreat deal oftime and eflort. lam committed to investigating this matter and
determining appropriate action to reduce the risk ofan^sucb compromises in the future".
D. Defense^Seeretar^ Robert Gates-DoDNewsTranscript^30 November 2010^
"Let me just offer some perspective as somebody who'sbeen at tbisalong time. Ever^
other government in the world knows the United States government leaks likeasieve,
anditbasforalongtime. Andldragged this up the other da^whenlwas looking at
some ofthese prospective releases. And this isaquotefi-om John Adams: Howcana
government go on, publishing all oftheir negotiations with foreign nations,Iknow not.
Tome, it appears as dangerous and pernicious as it is novel. Now,I've heard the impact
ofthese releases on our foreign police described asameltdown,asagame-changer, and
soon. Ithink those descriptions are lairl^ significantly overwrought. The fact is,
governments deal with the United States because the^ believe we can keep secrets. Man^
governments, some governments, deal with us because the fear us, some because tbe^
respect us, most because tbe^ need us. Weare still essentiall^,as has been said before,
the indispensible nation. So other nations will continue to deal with us. Tbe^will
continue to work with us. Wewill continue to share sensitive information with one
another. Istbisembarrassing7 Yes. Isitawkward7 Yes. Consequences forU.S.Ibreign
police areltbink fairly modest."
E. Secretary ofStateHillar^ Rodham Clinton, DOS Press Release,lDecember 2010,
"Remarks With l^azakhForeign Minister Saudaba^evAfierTheirMeeting"^"I bave
certainly raised the issue ofleaks in order to assure our colleagues tbat it will not in an^
wa^ interfere with American diplomacy or our commitment to continuing important work
that is ongoing. Ihave not had an^ concerns expressed about whether an^ nation will not
continue to work with and discuss matters ofimportanee to both ofus going forward. As
Isaid,Iam proud oftbe work that American diplomats do, and the role tbat America
pla^s in the world. Both President Obama andlare committed toarobust and
comprehensive agenda of engagemenf Andlam confident tbat the work tbat our
diplomats do ever^ single da^ will go forward. lanticipate tbat there will bealot of
questions that people have ever^ right and reason to ask, and we stand read^ to discuss
them at anytime with our counterparts around the world."

32242

FSecretar^ ofState Hillary Rodham Clinton, CNNPolitics,4December 2010,
"Clinton: WikiLeaks cables show diplomacy at work",4December2010NewYork
Times article "FromWikiLemons,ClintonTries to Make Lemonade",and4December
2010UPI article "Clinton on leaked documents: Sowbat7"^TheconfidentialU.S.
embassy cables posted online b^ the websiteWikiLeaks simple show"diplomats doing
the work of diplomacy. Ever^bod^ is concerned. Ever^bod^hasarigbttobaveustalk
to them, and bave anyquestions tbat the^ have answered, but at the end of the da^^asa
couple of analysts and v^iters are now writing ^wbat^ou see are diplomats doing the
workofdiplomae^.Butlhaven'tseenever^bod^ in the world, and apparently there's
252,000 of these things out there in cyberspace somewhere solthink I'll bave some
outreach to continue doing over the next weeks just to make sure as things become
public, ifthey raise concerns,Iwill be prepared to reach out and talk to m^ counterparts
or heads of state government. Inawa^,it should be reassuring, despite the occasional
tidbit tbat is pulled out and unfortunately blown up. Tbeworkofdiplomac^ison
displa^,and^ouknow,it was not our intention for it to be released this wa^^usuall^ it
takes ^ears before such matters are. Butltbinkthere'salot to be said about what it
shows about the foreign police ofthe United States."
G.Vice President Joseph Biden,MSNBC,undated, transcript ofinterview with Andrea
Mitchell^"I came in, almost all ofit was embraces,Imean it wasn't just shaking bands.
Iknow—I know these gu^s,Iknowtbese women. The^ still trust the United States.
There'sall kind ofthings and ^In response toaquestion "So there'snodamage7"j " I
don'ttbinktbere'san^ damage. Idon'tthinkthere'san^ substantive damage, no. Look,
some ofthe cables that are coming out here and around the world are embarrassing. I
mean, ^ou know, to sa^ that, ^ounow,for^ou to doacable as an ambassador and sa^I
don't like Biden'stie, be doesn't look good and be'sahomel^gu^,that'snot
sometbing."]^Ineversaidthatj "No,Iknow ^oudidn'L But^et,Imean,^ouknow^so
there'salot of things like that would allow another nation to sa^tbe^ lied to me,we
don'ttrust them, tbe^ really are not dealing fairly with us."
HTheHonorableJohnCon^ers,Jr.HearingonEspionageactand the Legal and
Constitutional Issues Raised b^WikiLeaks,l^December2010^"Weare too quick to
accept government claims ofrisk to national security and far too quick to forget the
enormous value ofsome national security leaks and, quoting Secretary Gates, "Ihave
beard the impact of these releases on our foreign police described asameltdown, asa
game changer, and so on. Itbink those descriptions are fairly significantly overwrought."
3. On 29August 2012,during oral argument, the Defense withdrew its request for judicial
noticeofpublic commentsfi:-omMarine Colonel David Lapan.
4. On 30 August 2012,during oral argument, the Defense provided the Court withacopy ofthe
l^August20101etter from Secretary ofDe(ense Robert M.Gates to Senator Carl Levin,
Chairman, Senate Committee on the Armed Services. The letter provided the source for Mr.
Gates'statements quoted in thel5October2010Associated Press article. In place oftbat

32243

Article, the Defense requests the Court to take judicial notice ofMr.Gates'I^August 2010
letter and the 28 Jul^20101etter from Senator Levin requesting Mr. Gates'response.
The La^:

Judicial Notice

1. Military Rule ofEvidence (MRE)
201 govemsjudicial notice of adjudicative facts. The
judicially noticed fact must be one not subject to reasonable dispute in that it is eitber(l)
generally known universall^,locall^,or in the area pertinent to the event or (2) capableof
accurate and read^ determination b^ resort to sources whose accuracy cannot reasonable be
1987)-^^i^^/-^i^/^,33MJ 70^
questioned ^ ^ i ^ ^ ^ ^ ^ ^ ^ / ^ , 2 3 M J 383 (CMA
(ACMR1991)
2. MRE 201(c)requires the military judge to take judicial notice of adjudicative facts if
requested b^apart^ and supplied with the necessary information.
3. When the militar^judgetakesjudicial notice ofadjudicative facts, the factfinderis instructed
tbat the^ma^,but are not required to, accept as conclusive an^ matter judicially noticed.
4. Judicial notice is of adjudicative facts. Judicial notice is not appropriate for inferencesapart^
hopes the factfinderwill draw from the fact(s)judiciall^ noticed. Legal arguments and
conclusions are not adjudicative facts subject to judicial notice, ^ . ^ . i ^ . ^ / ^ ^ ^ / ^ . ^ ^ / ^ , 22 M.J.885
(A.F.C.M.R. 1985)(appropriate to take judicial notice of the existence ofatreatment program at
aconfinementtacilit^ but not appropriate to take judicial notice of the quality ofthe program.).
TheLa^: Hearsay
1. Hearsay isastatement, other than the one made b^ the declarant while testifi^ing at the trial,
offered in evidence to prove the truth ofthe matter asserted. MRE 801(c). Hearsay is not
admissible except as provided b^ the Military Rules ofEvidence or b^an^Act of Congress
applicable in trials b^ court-martial. MRE 802.
2. Admission b^aPart^ Opponent. MRE 801(d)(2)provides in relevant part tbat admissions b^
aPart^ Opponent are not hearsay if the statement isoflcredagainstapart^ and is(A)the parties'
own statement in either the part^'sindividual or representative capacity-(B)astatement of
which the part^ has manifested the part^'sadoption or beliefin the trutb-(C)astatementb^a
person authorized b^ the part^ to makeastatement concerning the subject-or (D)astatementb^
the part^'sagent or servant concerningamatter within the scope oftbe agency or employment of
the agent or servant made during the existence of the relationship....The contents of the
statement shall be considered but are not alone sufficient to establish the declarant'sautborit^
under(C),or the agency or employment relationship and the scope tbereofunder(D).
3. Relevant Hearsay Exceptions:
A. MRE

803(^) Records ofRegularl^ Conducted Activity.

B

803(8) Public RecordsandReports

MRE

32244

C MRE 807Residual Hearsay
4. MRE 805 provides that hearsay included within hearsay is not excluded under the hearsay
rule ifeacb part oftbe combined statement conforms with an exception to the hearsay rule
provided in these rules.
TheLa^: Sentencing

Relaxed Rules.

1. RCM1001(C)(3)authorizes the militar^judge,with respect to matters in extenuation or
mitigation or both, to relax the rules of evidence. This ma^ include admitting letters, affidavits,
certificates ofmilitar^ and civil officers and other writings ofsimilar authenticity and reliability.
2. RCM1001(C)(4) provides that when the rules of evidence have been relaxed for the Defense,
the^ma^ be relaxed during rebuttal and surrebuttal to the same degree.
Conclusions o f L a ^ : The statements proffered b^ the Delense in enelosuresA-H of thel3
September 2012 Delense Supplement are not relevant to the merits portion oftbe triak The
conclusions oflaw below address admissibility during the sentencing portion ofthe triak
Admissibility as Admissions b^aPart^ Opponent Under MRE 8t)l(d)(2)(B) or MRE
801(d)(2)(D)
1. There is no direct military ease law regarding whether statements b^ government agents can
be admissible againstapart^ opponent inacriminal proceeding. The Federal Circuits have
varied opinions on this issue, .^^^^^.^.^^^^^/^^,403 Md. 308,322 325 (Ct.App.Md 2008).
This Court agrees it is possible for statements b^ executive branch officials to be admitted ina
criminal proceeding as admissions ofapart^ opponent. i^^^^/^/^^^i^^^^^.^i^. I^/^^/^/^/^,874
F.2d ^34, ^38 (9tbCir.l989) (holding thatamanual on field sobriety testing issued b^ the
government should be admissible as an admission ofapart^ opponent inadrunk driving case)^/^/^^^i^^^^^.^i^.^^/-/7^,28^F.3d 749,758 (4^^ Cir. 2002) (holdingthat in prosecution formaking
false statements to the FDA, the statements ofan employee oftbe FDA could be admitted
against the government pending proper Ibunding)-^/^/^^^i^^^^^.^i^. ^i^/-/-^/^,42F.3d^47,^55
(D.C.Cir.l994) (holding tbat government bad manifested its belief in sworn statements b^a
police officer contained in an affidavit, therefore the statements were admissible under Federal
RuleofEvidence(FRE) 801(d)(2)(B)). The Court further agrees with the Government that the
eases allowing such admissions are those where the prosecution has manilested its beliefin the
truth ofastatementinacourt proceeding or judicial document tbat should be admissible when
the Government takesacontrar^ position. ^/^/^^^^^^/^^.^i^.^/^^/^^^/^,97F.3d 835,851 (^tb Cir.
1991)-^/^/^^^^^^^^.^i^^^/-^^/^,581F3d 933,937 ( D C C i r l 9 7 8 )
2. The Court adopts the three-part test adopted b^ the Second Circuit in ^ / ^ / ^ ^ ^ i ^ ^ ^ ^ ^ . ^ 1^.1^^^^/-/^^,
937F.2d 797,811 (2^^ Cir. 1991)to determine if the statements at issue are admissible against
the Government and worths ofjudieial notice. The three-part test requires the Court,"]^tojbe
satisfied tbat the prior ]^statementj involves an assertion offact inconsistent with similar
assertions inasubsequent trial. Second, the court must determine tbat the ]^statementsjwere

32245

such as to be the equivalent of testimonial statements.... Last, the district court must determine
by a preponderance of the evidence that the inference that the proponent of the statements wishes
to draw is a fair one and tbat an irmocent explanation for the inconsistency does not exist."
^a/ez-MO, 937 F.2d at 811 (2d Cir. 1991) (quoting C//7fW&are.y v. Mc^eow, 738 F.2d 26, 33 (2d
Cir. 1984) (quotations omitted); see also United States v. DeLoach, 34 F.3d 1001, 1005 (11th
Cir. 1994) (adopting the test from Salerno).
3. To qualify for admission as a statement against a party opponent, the statement must bear
such a close resemblance to in-court testimony tbat they may be considered its functional
equivalent. As the Court noted in McKeon while analyzing whether use of prior opening
statements were admissible against the government in subsequent criminal trials, "Speculations
of counsel, advocacy as to the credibility of witnesses, arguments as to weaknesses in the
prosecution's case or invitations to a jury to draw certain inferences should not be admitted. The
inconsistency, moreover, should be clear and of a quality which obviates any need for the trier of
fact to explore other events at the prior trial. The court must further determine that the
statements of counsel were such as to be the equivalent of testimonial statements by the
defendant. . . Some participatory role of the client must be evident, either directly or
inferentially as when the argument is a direct asserfion of fact wbicb in all probability had to
have been confirmed by the defendant." McKeon, at 33.
4. Casual statements made to private individuals, with no expectation of conveyance beyond the
listener are not testimonial, even if highly incriminating to another. United States v. Scheurer,
62 M.J. 100, 105 (CAAF 2005)(quoting Robert P. Mosteller, Crawford v. Washington:
Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L.Rev. 511, 540 (2005).
Testimonial statements bear the indicia of reliability often "contained in formalized ... materials,
such as affidavits, depositions, prior testimony, or confessions." United States v. Hendricks, 395
F.3d 173, 181 (3d Cir. 2005) (quoting Crawford v. Washington, 541 U.S. 36, 52 (2004)).
Statements "cannot be deemed testimonial" if the declarant "did not make the statements
thinking that they would be available for use at a later trial." U.S. v. Sheurer, at 105 (quoting
Crawford, 541 U.S. at 52).
5. To determine whether a statement is testimonial and non-testimonial statements, it is relevant
to inquire: Was the statement at issue in response to a law enforcement or prosecutorial or formal
inquiry? Is the statement a direct assertion of fact? What was the primary purpose for making
the statement? See United States v. Rankin, 64 M.J. 348, 352 (C.A.A.F. 2007), McKeon, at 33.
6. The fact that a statement is admissible against a party opponent does not bind the party to that
statement. The party against whom sucb a statement is made can rebut the statement and assert a
different or contrary position. Bellamy, 403 Md. at 328, fn 19.
7. There are eight statements of public officials currently at issue.
A. The statement by Geoff Morell, Pentagon Press Secretary, is admissible under MRE
801(d)(2)(D). The substance of the statement, specifically that the assessments of the
Guantanamo Review Task Force have not been compromised to Wikileaks, is an
assertion of fact, and likely one inconsistent with the position taken by the government at

32246

trial. This statement delivered byaPentagon Press Secretary and distributed to the media
for widespread publication was done so under formal circumstances and is bereft of
personal opinion. The primary purpose ofthe statement was to convey information to the
public, unlikeastatement made to family or friends,and this direct assertion of fact in all
probability bad to be confirmed by the government. The statement therefore is imbued
with the reliability tbat is the hallmark ofa"testimonial statement." Finally,a
preponderance oftbe evidence demonstrates the inference to be drawn by the Defense is
afairone.
B. The statement by President Barack Obama to ABC News on 27 July2010is
admissible under MRE 801(d)(2)(D). The substance ofthe statement, specifically tbat
the ^released informationjdoesn't "reveal any issues that haven'talready informed our
public debate on Afghanistan" is an assertion offact, and likely one inconsistent with the
position taken by the Government at triak This statement by the President was delivered
under formal circumstances, and presented to the media in the Rose Garden to be
distributed to the public. The primary purposeoftbe statement was to convey
information to the public,and this direct assertion offact in all probability had to be
confirmed by the government. The statement therefore is imbued with the reliability tbat
is the hallmark ofa"testimonial statement." Finally,apreponderance of the evidence
demonstrates the inference to be drawn by the defense isafair one.
C. Tbel6August20I0Ietterfi-om Secretary ofDelcnse Robert M.Gates to Senator Carl
Levin, Chairman, Senate Committee on Armed Services, is admissible under MRE
801(d)(2)(D). The substance oftbe statement, specifically tbat that the released
information does not reveal sources and methods,is an assertion offact, and likely one
inconsistent with the position taken by the government at trial. The statement by
Secretary Gates was delivered under formal circumstances, in response toaletter from
Senator Carl Levin, and published on official letterhead. The primary purposeoftbe
letter was to convey information to the Chairman oftbe Senate Committee on Armed
Services and the public, and the direct assertions offset contained therein in all
probability had to be confirmed by the government. The statement therefore is imbued
with the reliability tbat is the hallmark ofa"testimonial statement." Finally,a
preponderance oftbe evidence demonstrates the inference to be drawn by the defense isa
fair one.
D. The statement by Secretary ofDefense Robert M.Gates, on 30 November 2010,
duringajoint DOD news briefing with the Chairman, Joint Chiefs ofStaff, Admiral Mike
Mullen, is not admissible under MRE 801(d)(2)(D)and the Court declines to judicially
notice the statement. The statement is not assertion offact, it is one of personal belief ("I
think those descriptions are lairly significantly overwrought.") Despite the formal
circumstances under which the statement was made(e.g.aDOD news briefing with the
Chairman oftbe Joint Chiefs ofStaff) the Courtfindsthe primary purpose oftbe
statement was not an assertion of an unambiguous, factual matter, butapolitical one.
Secretary Gates was addressing the press corps and explaining the repeal oftbe "don't
ask, don'ttell" law whenaquestion arose regarding information sharing among the
intelligence community. Secretary Gates was attempting to minimize the release ofthe

32247

information on U.S.^reign policy. Persuasive speech of this kind is notadirect
assertion oflact tbat in all probability had to be confirmed by the government, or is easily
rebutted by similar assertions.
E. The statement by Secretary ofState Hillary Rodham Clinton published on the DOS
website onlDecember 2010,is not admissible under MRE 801(d)(2)(D)and the Court
declines to judicially notice the statement. Tobegin, the statement is not an assertion of
fact, it is one ofpersonal belief ("I think there'salot to be said about what it shows about
the foreign policy oftbe United States."). Despite the formal circumstances under which
the statement was made(e.g.declaration byaSecretaryataworld security summit)tbe
Courtfindsthe primary purpose oftbe statement was not an assertion of an unambiguous,
lactual matter, butapolitical one. Secretary Clinton was attempting to bolster support
among world leaders and top diplomats, despite the alleged security violations.
Persuasive speech ofthis kind is notadirect assertion offact tbat in all probability had to
be confirmed by the government, or is easily rebutted by similar assertions.
F. The statements made by Secretary ofState Hillary Rodham Clinton published by USA
Today onlDecember 2010andCNN.com, NewYorkTimes.com, and UPI.com on4
December 2010,are not admissible under MRE 801(d)(2)(D)and the Court declines to
judicially notice the statements. Tobegin, the statements are not an assertion offact, it is
one ofpersonal belief("I think I'll have some outreach to continue doing over the next
weeks...") The Courtfindstbat the statements in this interview are not the functional
equivalent of"testimonial statements." The statements were ostensibly made offcamera,
but on the record. Nevertheless, the Courtfindsthe primary purpose was not an assertion
ofunambiguous, factual matters, butapolitical one. Secretary Clinton was again
attempting to re-establish trust with world leaders through diplomacy. Persuasive speech
ofthis kind is notadirect assertion offact tbat in all probability had to be confirmed by
the government, or is easily rebutted by similar assertions.
G. The undated statement made by Vice President Biden,duringaone-onone interview
with NBC correspondent Andrea Mitchell, is not admissible under MRE 801(d)(2)(D)
and the Court declines to judicially notice the statement. Tobegin, the statement is not
an assertion oflact, it is one ofpersonal belief ("I don'tthinktbere'sany damage.") The
Courtfindstbat the statements in this interview are not the functional equivalent of
"testimonial statements." The statements oftheVice President are not formally prepared
remarks, rather tbey are off-the-cuff responses to questions and include such phrases as
"Sure,Idid,""Suretbeyare,""Well,look " " I love the Senate Hove tbeCongress I
keep in touch with them." The nature ofthe statements themselves, including the
qualifying language ("I don'ttbinkthere'sany damage") do not support the principle that
the statements are testimonial in nature. Moreover, the topics discussed during the
interview coverabroad range of subjects from tbeVicePresident'srelationship with the
President, to the death ofRicbard Holbrooke. In fact, the interview concluded witha
holiday message fi-omtheVice President to the service members serving in Iraq.These
statements were notadirect assertion offact that in all probability bad to be confirmed by
the government, or are easily rebutted by similar assertions.

10

32248

H. The statement made by the Honorable John ConyersonI6December 2010,duringa
Congressional bearing on the Espionage Act and the Legal and Constitutional Issues
raised by Wikileaks,is not admissible under MRE 801(d)(2)(D)and the Court declines to
judicially notice the statement. The statement is not an assertion offact, it is oneof
personal belief ("Weare too quick to accept government claims ofrisk to national
security.") Despite the formal circumstances under which the statements were made(e.g.
an on-the-record committee hearing) the Courtfindsthe primary purpose ofthe statement
is not an assertion ofunambiguous, factual matters, butapolitical one. Congressman
Conyers was attempting to get the public and the press to "slow down and takeacloser
look" at the alleged security violations. These statements were notadirect assertion of
fact that in all probability bad to be confirmed by the government, or is easily rebutted by
similar assertions. The statement sought to be introduced by the Defense is primarily
hearsay within hearsay, as Congressman Conyers is quoting Secretary Gates.
Congressman Conyers'remarks regarding his perspective on government leaks is
irrelevant to any issue of material fact in the case. Finally,tbis Courtfindsan additional
impediment to admissibility of this statement, as the declarant isamember of the
legislative, not executive, branch of government, and the legislature is notapartyopponent in the proceeding. ^/^/^^^^^^^^.^v^^/-^^,910F.2d 843,906-9Il(D.C.Cir.
1990)
9 Admissibility ofStatementsaPublic Records Under MRE 803(8).
A. As an additional basis for admission, the Courtfindstbel6August20101etterfi-om
Secretary Gates admissible under MRE 803(8)(A). It isarecord of activities setting forth the
activities oftbe Department ofDefense.
B. The remaining statements are not admissible under MRE 803(8)(A). Newspaper
articles are not public records. Press releases by Government officials under the circumstances
ofthis case do not set forth the activitiesofthe agency. If such press releases were admissible
under MRE 803(8)(A), sucb pronouncements by Government officials offered by the
Government against the accused would be similarly admissible. Finally,aCongressional record
could be admissible under MRE 803(8)(A) if relevant. The opening statement and the personal
opinion ofCongressman Conyers regarding his perspective on government leaks is irrelevant to
any issue ofmaterial fact during sentencing proceedings.
10 Admissibility of Comments Made by Government Officials foranon-bearsay purpose.
The Courtfindsthe statements made by Mr. Morrell, President Obama, and Secretary Gates in
enclosuresA-Cofthel3 September 2012Defense Supplement are also admissible as nonhearsay in tbat the fact tbat the public statements ofthese Government officials were made is
circumstantial evidence ofminimized damage caused by the alleged Wikileaks disclosures.
Similarly,tbe statements by Secretary Gates and Secretary Clinton made in DoD and DoS press
releases(enclosuresDandE) are similarly admissible ^ r the non-hearsay purpose. The
statements by Secretary Clinton and Vice President Biden(enclosuresFandG) are similarly
admissible for the non-hearsay purpose only ifthe newspaper article within which the statements
appear qualify forahearsay exception. The statement by Congressman Conyers, Jr. in the
Congressional record(enclosureH) is not admissible foranon-bearsay purpose because bis
11

32249

personal opinion on government leaks is irrelevant to any issue ofmaterial fact during sentencing
proceedings.
11. Admissibility of Comments Made by Government Officials in Newspaper Articles
under MRE804,803(6),and 807.
A. The statements made by government officials in newspaper articles or articles
published on the internet are hearsay within hearsay. Newspaper articles do not qualify as
business records under MRE 803(6) ^ i ^ i^ .^^^///^^/^,43MJ501(A F Ct Crim App l992);
^^v^/^^^^i^/,155FedAppx 433 (ll^^Cir 2005);^^^/^^/-v^^/^/-/^^^
2010). Thus, statements made in newspaper articles where the reporter is not produced asa
witness are hearsay within hearsay even if there isabearsay exception or the statement is
admitted foranon-bearsay purpose.
B. The newspaper articles at issue are also not admissible as residual hearsay under MRE
807. Residual hearsay should be used sparingly and requires that the statement be more
probative on the point for which it is oflered than other evidence wbicb the proponent can
procure through reasonable eflbrts. i^^^^.i^.v.^//^^^^,45MJ284(CAAF 1996) citing .^^/-^^^.
C//^^.^^.^B^/^^^^^.^^946F.2d 630,644 (9^^ Cir.I991)(testimonyofnewspaper reporters more
probative than copies ofnewspaper articles) Additionally,there is no way to know whether the
government officials quoted were quoted in part or in toto. Finally,the online interview ofVice
President Biden at encIosurcGis undated. None oftbe newspaper articles at issue bears the
circumstantial guarantees oftrustwortbiness required for admissibility under MRE 807.
Conclusions of Law: Sentencing
Should the Defense move the Court to relax the rules ofbearsay and authentication pursuant to
RCM1001(C)(3), the Court will permit the De^nse to admit the statements in enclosures D-G
in extenuation or mitigation or both at sentencing. The Court will takejudicial notice ofthe
existenceoftbe statements i n D F . The Court will not takejudicial notice ofthe existence ofthe
interview at enclosureGunless the Defense provides evidence oftbe date oftbe interview was
made to the Court. Relaxation ofthe rules under RCM1001(c)(3)does not relax the rules of
relevance. The statement by Congressman Conyers, Jr. in enclosureHis not relevant for
sentencing and is not admissible under relaxed rules.
Ruling: The Defense motion for Judicial Notice ofPublic Statements is Granted in Part.
1. The statements by Mr. Morrell,President Obama, and Secretary Gates in enclosuresACare
admissible as substantive evidence and the Court will take Judicial Notice oftbe press releases in
enclosuresAandBand ofthe letters in enclosure C.
2. The statements in enclosuresA^Cand the statements by Secretary Gates and Secretary
Clinton at enclosuresDandEare admissible foranonhearsay purpose as public statements
made by government officials that provide circumstantial evidence ofminimized damage caused
by the alleged Wikileaks disclosures. The Court will takejudicial notice ofthe existence oftbe
press releases including the statements.
12

32250

3. The statements made by Secretary Clinton and Vice President Biden in enclosuresFandG
are hearsay within hearsay and are not admissible (or the non-hearsay purpose in paragraph2
unless the Defense requests the rules be relaxed for these statements under RCM1001(c)(3). If
the rules are relaxed the Court will take judicial notice of the newspaper articles in enclosureF.
Ifthe De^nse provides evidence oftbe date oftbe interview ofVice President Biden at
enclosure G, the Court will takejudicial notice oftbe interview.
4. The statement by Congressman Conyers, Jr. is not relevant and is not admissible.
So Ordered thisl8^^ day ofOctober 2012

DENISERLIND
COL,JA
Chief Judge,!^^ Judicial Circuit

13

32251

UNITED STATESOF AMERICA
REQUIREMENTS
FORDEFENSE NOTICE UNDER
MRE505(b)(^): CHARGED
DOCUMENTS AND WITNESSES

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

I8October2012

The Law
A.

The Protective Order

The Court signed the Protective Order for Classified Information onl6Marcb 2012.
Appellate Exhibit XXXII. Under paragraph 3(1), the defense is required "to provide the trial
counsel with the namesof any intended recipient(s)and notice ofthe classified inlormation that
is expected to be disclosed or elicited pursuant to MRE 505(b)(3)." Appellate Exhibit XXXII, at
6
B.

MRE 505

Under MRE 505(b)(1), ifthe accused reasonably expects to disclose or to cause the
disclosureof classified inlormation in any manner in connection witbacourt-martial proceeding,
be must provide notice to the trial counsel in writing ofhis intention. MRE 505(b)(1). This
notice must includeabrief description oftbe classified inlormation and "must state,witb
particularity,wbicb items of classified inlormation^tbeaccusedj reasonably expects will be
revealed by bis delense." MRE 505(b)(3). Ageneral statement "oftbe areas about wbicb
evidence may be introduced" is not sufficient, ^i^.
The accused'snotice under MRE 505(b)aI1ows the prosecution to consider the relevance
oftbe classified information and, ifrequired, motion the court for an//^^^/^^/-^ proceeding
concerning the use at any proceeding oftbe classified information identified by the accused, i ^ ^ ^
MRE505(i)(2)
In order to obtain an//^^^/^^/^^ proceeding, the prosecution must be able to demonstrate
that disclosure ofthe inlormation reasonably could be expected to cause damage to the national
security. MRE505(i)(3). This showing is typically achieved througbaclassification review of
the inlormation identified by the defense notice to the prosecution. ^^^MRE 505(i)(3)("Tbe
affidavit shall demonstrate that disclosure oftbe inlormation reasonably could be expected to
cause damage to the national security in the degree required to warrant classification under the
applicable executive order, statute, or regulation."). Classified information is not subject to
disclosure unless the inlormation is relevant and necessary to an element of the offense ora
legally cognizable defense and is otherwise admissible in evidence. MRE 505(i)(4)(B).
By way ofexample, in this case, the starting point (or specificity for documentary
evidence could beaunique report key ^ r CIDNE records oraunique message record number ^ ^ r ^
APPELLATEEXHI8^^^^
^

PAG^^^^^^^^^^^^^^^^^^^^^^^
PAGE
^^^^^^^^^

32252

lor Department ofState cables. In any event, i f i t is unclear as to which specific items of
classified information are at issue, the United States cannot makeadetermination whether to
concede the relevance, necessity,or admissibility of the inlormation or, in the alternative, request
aclassification review from the relevant OCA and move the court lor an//^^^/^^/^^ proceeding
under MRE 505(i)
Furtber,witbout knowing the witnesses the defense intends to use to disclose classified
information during trial, the prosecution is not fully able to contemplate what other classified
information may be revealed by crossexamination,wbicb could potentially vary by witness, or
various other issues raised by the disclosure ofclassified information.
II.

OutstandingNotice Requirements l A ^ t b e Protective Order and MRE 505
The prosecution requires the following notice under the protective order and MRE 505:

a. Notice ofclassified inlormation the defense intends to discuss with its own witnesses
during interviews and notice ofclassified inlormation the defense intends to elicitfi-omits own
witness during triak This notice should identily the specific witness, the specific classified
document(s)the delense intends to discuss with its witness, and any other potentially classified
information the delense intends to either disclose to the witness or intends to elicit from the
witness during interviews and during trial.
b. Notice ofclassified inlormation the defense intends to discuss with Government
witnesses during interviews. This notice should identify the specific witness, the specific
classified document(s)tbe defense intends to discuss with the witness, and any other potentially
classified inlormation the defense intends to either disclose to the witness or intends to elicit
from the witness during interviews.
c. Notice ofclassified in^rmation the defense intends to disclose during trial through
Government witness testimony. This notice should identily the specific witness, the specific
classified document(s)tbe delense intends to discuss with the witness, and any other potentially
classified information the defense intends to elicitfi-omthe witness during triak
III.

Importance of Adequate Notice

Adequate notice drives the procedures under MRE 505. It focuses the issues lor the
parties and the Court and contributes to the efficiency oftbe proceedings. Without adequate
notice, the prosecution is left to guess what the accused means by the notice provided and results
in delays oftbe Original Classification Authorities'decision whether to authorize disclosure or
invoke the privilege. Tbat uncertainty delays the classification review process,wbicb in turn
delays the ability oftbe prosecution to motion the Court to bold an//^^^//^^/^^ proceeding under
MRE 505(i), ifthe privilege is invoked.

32253

IV.

Procedural Steps

The following are the procedures derived from MRE 505(b)(3)that the defense must
follow in order to use classified inlormation during witness interviews and to disclose at triak^
a. STEP1: The defense must provide adequate notice, including identifying with
specificity what classified inlormation is at stake and with what witness. This includes
documents and expected testimony. If the witness is notagovemment employee and does not
baveasecurity clearance, the prosecution may oppose the proposed disclosure or initiatea
security clearance investigation. Asecurity clearance investigation ofacivilian unaffiliated with
the United States Government could takeaminimum of 60 days to process, if approved.
b. STEP 2: Assuming the information is relevant to the merits or sentencing, the
prosecution must vet the inlormation with the owning entity to determine if it is classified and/^or
properly classified.^ Ifapreliminary review has not been initiated,the owning entity must
conductapreliminary classification review. This process may take approximately 45 60 days.
c. STEP3: Ifthe agency owning the inlormation determines tbat it does not authorize
disclosure oftbe information during trial,it must invoke the privilege. The prosecution must
motion the court lor an//^^^//^^/^^ proceeding concerning the useoftbe information at trial lAW
MRE505(i)(2). Prior to the motion, the prosecution must obtain an affidavit demonstrating the
national security nature oftbe information. MRE 505(i)(3). This affidavit will likely be
produced at the same time as the preliminary classification review described above in STEP 2.
Additionally,tbe prosecution must consult with the bead oftbe executive or military department
or government agency to obtain authorization to claim the privilege. This process may take
approximately30-60 days, although the prosecution estimates 30 days in this case.
d. STEP 4: Iftbe prosecution establishes the national security nature oftbe inlormation
by affidavit, and the bead oftbe executive or military department or government agency directs
the prosecution to invoke the privileged, the Court will conduct an//^^^//^^/-^ proceeding. Prior
to the//^^^/^^/-^ proceeding, the prosecution will provide the defense notice oftbe inlormation
tbat will be at issue. Both parties must then be given the opportunity to file briefs on the issue.
MRE505(i)(4)(A)
V.

Requested Timeline

The lastMRE 505(b)notice was scheduled for 15October20I2witb any MRE 505(b)
motions to be filed on7December 2012 and responded to on21 December 2012,with the MRE
505(i) litigation scheduled lor tbe14 18January2013session. This schedule allotted almost
sixty days to complete the processes discussed above, as the prosecution repeatedly represented.
^ •f^hi^li^ti^rti^^rttt^d^^^rih^^or^^^f'th^^oiitirt^^rt^i^^^t^rr^tiridirt^th^ti^^^f^^l^^^ifi^^
pr^p^r^tionf^rtri^l^rtd^ttri^l,^rtdi^notrrt^^rtttoh^^ti^xh^t^^tiv^li^t. t^tt^toth^^orrtpl^xit^ot^^irt^^l^^^ifi^d
itif^orrrt^ti8^irtpr^p^r^ti8tifi:^r^rtd^ttri^l,iti^iiiipo^^ihi^topl^tifi:^r^v^ry^8iititi^^rt^^^
^ ^hi5do^^rt^t^ppl^t^itifi:^rii^^tioiith^t^lr^^d^ii^^^^i^5^if^^^tiortr^vi^w,^.^.,tii^^h^r^^dd^

3

32254

//^^^/^^^/^, on its Proposed Case Calendars tbat any order to disclose classified information will
likely require coordination with multiple lederal organizations and estimated 45-60 days to
coordinatearesponse. The prosecution recommends scheduling at least tbat amount oftime
between subsequent MRE 505(b)filingsandaMRE505(i) session.
The prosecution re^uestsa26 October 2012 suspense for the defense to notify the
prosecution ofthe inlormation the defense intends to discuss with its own witnesses during
interviews and noticeof classified inlormation the delense intends to elicit Irom its own
witnesses during triak ^^^,.^-^/-^, Section Ila. This notice will likelytakelongerto process, as
some oftbe defense witnesses with whom the defense intends to share classified information are
civilians who do possess security clearances.^
The prosecution requestsaI6November 2012 sust^ense lor the defense to notitythe
prosecution oftbe classified inlormation the defense intends to discuss with prosecution
witnesses during interviews, as well as notice ofclassified information the defense intends to
disclose during trial through witness testimony. ^^^,.^^/-^, Sections IIa,b.
The prosecution recommends tbat MRE 505(i) filings be scheduled for 11 January201^,
with responses due onI8Januarv 201^,and litigation on 28-29 January 201^.
This timeline assumes tbat the privilege will not bave to be invoked and does not refiect
the possibility oftbe Court permitting disclosure ofclassified inlormation under MRE^
505(i)(4)(D)and the prosecution then requesting an alternative to disclosure.

ASHDEN FEIN
MAJ, JA
Trial Counsel

' The defense stated in an RCM 802 conference on 17 October 2012 that they intend to share classified information
with Ambassador Galbraith, COL(R) IVlorris Davis and Professor Benkler who are all civilian witnesses.

32255

UNITED STATES OF AMERICA

)
^
)

Manning, Bradley E.
PFCU.S.Army,
HHC, U.S. Army Garrison,
Joint Base MyerHenderson Hall
Fort Myer, Virginia 222II

)
)
)
)
)
)

Scheduling Order

18October2012

1. The Court is currently scheduling Article 39(a) sessions with the Ibllowing default schedule at
the request oftbe parties: two weeks lor parties to file motions: two weeks lor parties to file
responses; five days lor parties to file replies: and one week lor the Court to review all pleadings
belore the start ofthe motions bearing. The time lor filing replies was added after the first Article
39(a) session onI5 16Marcb2012because the Court received reply briefs the day belore tbat
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 lortb 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. ImmediateAction(21 February 2012 I6Marcb 2012)
b. Le^al Motions, excIudin^Evidentiary Issues (29 March 2012-26 A^ril 2012)
c. Le^al Motions (lOMay 2012 8June 2012)
d. Interim Pretrial Motions (2 June 2012 25 June 2012)
e. Pretrial Motions (7 June 2012 20 July 2012)
f.

PretrialMotions(20July20I2 30Au^ust2012)

g. Pretrial Motions (24 August 2012 180ctober 2012)
b. PretrialMotions (26 September 2012 2 November 2012)
(A) Article 39(a): 30October2012-2November 2012
(1) Defense Additional witness List ^2 for ArticlelO Motion
(A) Witness List: 26 September 2012
(B) Government Objections (if any): I6October2012
(C) Delense Motion to Compel (if any): 22 October 2012
(2) Defense Motion forSpeedyTrial,includingArticlelO(PART I)
(A) Filing: 19September2012
(B) Response: 10October2012
1
APP^L^^^T^^X^^IBIT^^^
I^AC^^^^B^^ER^NCED:^^^
^^A^^^^
OF
PAO^^B^^

32256

(C)RepIy: 17October2012
(3)

Defense Drafting ofPlea Specifications and Notice ofMaximum Punishments
(A) Filing: 23 October 2012
(B) Response:26 October 2012

(4) Defense Interrogatories for SpeedyTrial
(A) Date: 26 October 2012
(B) Response Irom OCA entities on whether they will respond to questions: 2
November 2012
(5) Defense MRE 505(b) Notification for Defense witnesses
(A) Date: 26 October 2012
(6)

i^

Discussion of Storing all AEsinaCentralized Location
(A)Date:30October2012

Pretrial Motions (190ctober 2012 2 December 2012)
(A)
(B)
(C)
(D)

Filing: 19October2012
Response: 2November2012
RepIy:9November2012
Article 39(a): 27November2012(^1300)-2 December 2012

(1) Defense Supplemental ^2 for Article 13 Motion
(2) Defense Article 13 Motion (Article ^9(a) only)
(3)

Specifications for Plea and Maximum Punishments Litigation (if necessary)
(A) Filing: 5November2012
(B) Response: 16November20I2
(C) Reply: 23 November 2012

(4) Government Response to Defense Interrogatories for SpeedyTrial
(A)Filing: 16November2012
(5) Defense MRE 505(b) Notification for Government witnesses
(A)Date: 16November2012
^. Pretrial Motions(16Noyember2012-14December2012)
(A)
(B)
(C)
(D)

Filing: 16November2012
Response: 30 November 2012
RepIy:5December2012
Article 39(a): 1014December2012

32257

(1) DefMotion for Speedy Trial, includingArticle10(PART 2) (Article39(a) only)
(2) Defense Supplemental witness List for Sentencing
(A)Fi1ing:9November2012
(3) Defense witness List Litigations
(A) Govt Objection to DefWitnesses (Initial and Supplemental): 16November2012
(B) Motion to Compel Production: 23 November 2012
(C) Response: 5December2012
(4) Government Motion to Compel Discovery (if any)
(5) Defense Motion to Compel Discovery ^4 (if necessary)
(6) Additional Requests for Judicial Notice
(7) Pre^^ualification of Experts
(8) Motions/^^/B^/^^ (Supplemental, Including any Classified Information) (if
necessary)
(9) Providence Inquiry^
(10) DisclosureofRCM 914 Material (based on Supplemental Govt witness List and
Defense witness List)
(A)Date:5December2012
k. PretrialMotions (7 December 2012-18January 2013)
(A)
(B)
(C)
(D)

Filing:21 December 2012
Response: 4January2013
Reply:9January2013
Article 39(a): 1418January2013

(1) Supplemental Government witness List (if necessary)
(A)Date: I4December20I2
(2) Production of Compelled Discovery from Defense
(A)Date: 14December2012
(3) Grunden Hearing for Government Classified Information
' This includes litigating the defense expert witnesses listed on the 15 October 2012 filing. The filings will be made
assuming that all charges will go forward as charged.
" The Defense must also make final forum selection. The prosecution requested the panel be notified no less than
sixty days prior to trial, in order to coordinate for extended special duty and travel.

32258

(A) Government Notice: 4January2013
1^ Pretrial Motions (28-29 January 2013)
(1) Grunden Hearing for Defense Classified Information
(2) Litigation ConcerningMRE 505(b)and MRE 505(i) (if not previously resolved)
(A) Filing: llJanuary2013
(B) Response: 18January2013
(3) Completion of Security Clearance Checks for ^itnesses(as necessary)
m.Trial by MJAIone(4 February 2013 15 Marcb2013)
Triak4February20I315Marcb2013
So Ordered tbis18th day ofOctober 2012.

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

32259

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 Request
for Leave until 10 December 2012
to Provide Detailed Plan for
Maintaining Appellate Exhibits

25 October 2012

1. The United states requests leave of the Court until10Oecember2012to set fbrthadetailed plan for
maintaining the classified appellate exhibits(A^s)that will not accompany the record of triak Ouringa
telephonic I^Cl^ 802 conference on50ctober 2012,the Court instructed the United states to presenta
plan to the Court to maintain classified AFs not accompanying the record oftrial (ROT) in one location
under the custody of one custodian withasystematic periodic review to ensure accountability of the A^s
through any appellate review. ^eeEnclosure(email from the Court summarising the telephonic RC^
802 conference).
2. The United states is in the process of completingacoordinated plan with the Clerk ofCourt and the
entities owning the classified AEs not accompanying the ROT to ensure that the AEs are maintained and
their whereabouts systematically reviewed regardless of personnel changes. Based on the coordination
necessary between the entities owning the AEs and with the entities maintaining the ROT,the United
states needs additional time to finali^eaplan that is detailed enough to ensure proper accountability and
is acceptable to all interested parties.
3. This request will not necessitateadelay in the proceedings as the continued effort to finali^eacourse
ofaction will occur concurrently with the scheduled pretrial motions process and, in the meantime, all
AEs will be maintained with the current points ofcontact and tracked by the United states. There will,
therefore, be no prejudice to the defense.

vSHDEN FEIN
MAJ, JA
Trial Counsel
I certify that I served or caused to be served a tme copy of the above on Mr. David Coombs, Civilian
Defense Counsel via electronic mail, on 25 October 2012.

ASHDEN FEIN
MAJ, JA
Trial Counsel
End
Court Email, dated 5 Oct 12

APPELLATE EXH1BIT_35^
PAGEREFERENCED:^^
PAGE
Of_PAGES ^

32260

UNITED STATESOF AMERICA
y^

i^anning,BradleyE.
PFCU.S.Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
FortMyer,Virginia 22211

Prosecution Request
for Leave until 10 December 2012
to Provide Detailed Plan for
Maintaining Appellate Exhibits
Enclosure
25October2012

32261

From:
To:

Lind. Denise R COL USARMY fUS)
Fein. Asliden MM USARMY MDW fUS)

Cc:

Pevid Cooml??; Hurley. Thomas F MAI USARMY fUSV. Tooman. Joshua J CPT USARMY (USl: Morrow. JoDean
(Joe) III CPT USARMY USAMDW fUSk Overgaard. Anoel M CPT USARMY fUSV. Whvte. J Hunter CPT USARMY
m i ; von Elten. Alexander S (Alec) CPT USARMY (USk Ford, Arthur D Jr CW2 USARMY (US): Williams. Patricia
Ann (Trisha Williams-Butler) CIV USARMY USAMDW (US): Jefferson, Dashawn MSG USARMY (US): Moore.
Katnna R SFC USARMY (US): Raffel, Michael J SFC USARMY (US)
5 October 2012 - telephonic rem 802 (UNCLASSIFIED)
Friday, October 05, 2012 3:03:33 PM

Subject:
Date:

Classification: UNCLASSIFIED
Caveats: NONE
Counsel,
The Court scheduled a telephonic RCM 802 session with the parties to discuss a 27 September 2012
motion filed by the Defense that was not on the trial schedule to make any necessary scheduling
adjustments to maintain the current trial schedule. The telephonic RCM 802 conference occurred on 5
October 2012 at 1300.
Present were: COL Lind, MJ; MAI Fein, CPT Overgaard, CPT Morrow, CPT White, Government; Mr.
Coombs, Defense
Both parties consented to participating in the telephonic RCM 802 conference
The following new suspense dates were established:
1. The Court granted the Government request for continuance to 15 October 2012 to file the joint
chronology.
2. The Government will file a redacted version of AE 264 (ex parte due diligence filing) with the Court
by 12 October 2012.
3. The Government will schedule an ex parte in camera session with the Court on 12 October
regarding the Government's 14 September 2012 MRE 505(g) motion with respect to the FBI records.
4. During the 29 October - 2 November 2012 article 39(a) session, the Government will present a plan
to the Court to maintain classified AE not accompanying the ROT in one location under the custody of
one custodian with a systematic periodic review to ensure accountability of the AE through any
appellate review.
This email synopsizes what occurred during the telephonic RCM 802 conference. Either party may
supplement the court's synopsis of what occurred.
The following issues were discussed:
1. In its 27 September 2012 motion, the Defense moved the Court to order the Government to
produce its speedy trial chronology in a Microsoft word or spreadsheet format and to disclose AE 264
the Government's ex parte due diligence filing with the Court. The Government responded to the motion
on 2 October 2012 advising the Court that the Government provided the chronology to the Defense in a
searchable PDF format and objected to giving the Defense the chronology in a word or spreadsheet
format because the original contains classified information and work product of the Government. The
Government also objected to disclosing the due diligence filing to the Defense because the information
the defense seeks is in the Government chronology, most of the information in the due diligence filing
will be in the Government response to the Defense speedy trial motion, some of the information in the
due diligence filing is classified and the Government does not have authority to disclose it, and some of
the information disclosed to the Court in the due diligence filing is Government work product.
a. Speedy Trial Chronology. The Court advised the parties that the speedy trial chronology should
be in a format where both sides have input and should contain all of the relevant dates the parties
agree to. The parties will use enclosure 1 to the defense speedy trial motion in word format as a
beginning. The Government requested a continuance to file the joint speedy trial chronology until 17

32262

October2012. The Defense did not object. The Court granted the Government request for continuance
to 16 October 2012
b. Due Diligence Filing Disclosure to the Defense. The Court ordered the Government to produce
aversion of the due diligence disclosure with the classified information and work product the
Government believes should be redacted by Friday,12October2012 in hardcopy to the Court.The
Government's response to the speedy trial motion is due Wednesday, 10 October2012. The Court will
have the Government response to the speedy trial motion and the redacted due diligence filing and will
rule on whether to require disclosure.
2. Maintaining classified AE. The Government moved the Court to allow2agencies maintaining
sensitive classified information that are AEs to maintain the information at the agency. The defense did
not object. The Court advised the Government that maintaining accountability of the complete ROT to
include ail of the exhibits through appellate review, should that occur,is an overriding interest of the
Government, Defense, and the Court. The Government will present the Court withaplan to have such
agency information located at one location, under the custody and control of one custodian,witha
procedure for systematic review that takes into account the PCS movement of personnel involved in the
trial to ensure the records are accounted for.The Government will have this have information gov't
plan for one location, one custodian, systematic review to ensure records remain available through any
appellate review. The Government will advise the Court of its plan with respect to such records during
the 29 October 2November2012 article 39(a)session.
3. SpeedyTrial Witnesses. TheGovernmentaskedwhetherthe 17 18 October2012 article 39(a)
session should be extended because the Defense maintains its request for 86 witnesses. The Defense
maintained its request for witnesses from 63 agencies are necessary because the Government
representations to the Court regarding ONCI^ are inconsistent with the ONCI^ entries in the
Government chronology on 13 January and 18 February 2011. The Government disagreed with that
characterization. The Court advised the parties that the issue would be litigated at the Article 39(a)
session and thattheArticle39(a)session need not be extended because the arguments for^against
production of most of the requested defense witnesses would be the same for the same category of
witnesses requested e.g. the 63 agency witnesses. Neither party disagreed. The Defense maintained
the individual OCA witnesses would be necessary because the OCA reviews wereajustification in most
of the approved Article 32 delays.
4. Government proposed MRE 505(g) limited disclosure: FBI file. Onl4September2012,the
Government moved the Court to allow limited disclosure of the redacted FBI investigative file pertaining
to the accused. The Court advised the Government that the Court reviewed the MRE 505(g) limited
disclosure and requires an ex parte, in camera proceeding with the Government to be recorded bya
court reporter to address the proposed limited disclosure. The Government advised the Court that it
would schedule the session on 12 October2012.
D
DENISE R. LIND
COL,^A
Chief ^udge, 1st judicial Circuit

32263

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

v.
PLEA AND FORUM
MANNING, Bradley E., PFC

U.S. Army,

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

DATED: 23 October 2012



In accordance with the Rules of Practice before Army Courts-Martial, PFC Manning, by and
through his attorney hereby serves notice to the Government and Court of anticipated plea,
requested forum, and expected motions. By way of this plea. the Defense waives any objection
under United States v. Borunda, 67 MJ. 607 (A.F.Ct.Crim.App. 2009) regarding whether Clause
1 and 2 of Article 134 is a lesser included offense of Speci?cations 2,3,5.7,9,l0,l 1, and 15 of
Charge II. The Defense also waives any objection that Article l2l UCMJ, preempts Clause 1
and 2 of Article 134 as a lesser included offense of Specifications 4,6,8, 2. and 16.

Plea:
To the Specification of Charge I and to Charge 1: Not Guilty;

To Specification 1 of Charge II: Guilty, except the words and ?gures ?l November 2009?
and ?27 May 2010?, substituting therefore the words and f1gures?3 February 20l0" and ?4 May
2010?; further excepting the words ?wantonly cause to be published on the internet intelligence
belonging to the United States government, having knowledge that intelligence published on the
internet is accessible to the enemy?, substituting therefore the words ?wrongfully gave
information belonging to the United States government to WikiLeaks, knowing that WikiLeaks
might publish the information on the intemet, having knowledge that infonnation published on
the intemet is accessible to anyone with intemet to the excepted words and ?gures, Not
Guilty; to the substituted words and figures, Guilty.

(Revised Specification 1 of Charge II: In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 3
February 2010 and on or about 4 May 2010. wrongfully gave information belonging to the
United States government to WikiLeaks, knowing that WikiLeaks might publish the information
on the intemet, and having knowledge that information published on the internet is accessible to
anyone with intemet access, such conduct being prejudicial to good order and discipline in the
armed forces and being of a nature to bring discredit upon the armed forces.)

DEFENSE REVISED NOTICE OF

32264

To Speci?cation 2 of Charge 11: Guilty, except the words and ?gures ?l5 February 2010?
and ?5 April 2010?, substituting therefore the words and ?gures ?l4 February 2010? and ?2l
February 2010?; further excepting the words ?information relating to the national defense, to
wit:?; further excepting the words ?with reason to believe such information could be used to the
injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted,?, substituting therefore
the words ?did willfully communicate?; further excepting the words and ?gures, ?in violation of
18 U.S. Code Section to the excepted words and ?gures, Not Guilty; to the substituted
words and ?gures, Guilty.

(Revised Speci?cation 2 of Charge II: In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 14
February 2010 and on or about 21 February 2010, having unauthorized possession of a video ?le
named JUL 07 CZ ENGAGEMENT ZONE 30 CG Anyone.avi?, did willfully communicate
the said information, to a person not entitled to receive it, such conduct being prejudicial to good
order and discipline in the armed forces and being of a nature to bring discredit upon the armed
forces.)

To Speci?cation 3 of Charge II: Guilty, except the words and ?gures ?22 March 2010?
and ?26 March 2010?, substituting therefore the words and ?gures ?l7 March 2010? and ?22
March 2010?; further excepting the words ?information relating to the national defense, to wit?;
further excepting the words ?with reason to believe such information could be used to the injury
of the United States or to the advantage of any foreign nation, willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted,?, substituting therefore the
words ?did willfully communicate?; further excepting the words and ?gures ?in violation of 18
U.S. Code Section to the excepted words and ?gures, Not Guilty; to the substituted
words and ?gures, Guilty.

(Revised Speci?cation 3 of Charge II: In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 17
March 2010 and on or about 22 March 2010, having unauthorized possession of more than one
classi?ed memorandum produced by a United States government intelligence agency, did
willfully communicate the said infonnation, to a person not entitled to receive it, such conduct
being prejudicial to good order and discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.)

To Speci?cation 4 of Charge 11; Guilty, except the words and ?gures ?between on or
about 31 December 2009 and on or about 5 January 2010?, substituting therefore the words and
?gures, ?on or about 5 January 2010?; further excepting the words and ?gures, ?steal, purloin, or
knowingly convert another a record or thing of value of the United States
or of a department or agency thereof, to wit: the Combined Information Data Network Exchange
Iraq database containing more than 380,000 records belonging to the United States government,
of a value of more than $1,000, in violation of 18 U.S. Code Section 641 substituting therefore
the words and ?gures ?remove from a tactical sensitive compartmentalized information facility,
for an unauthorized purpose, more than 380,000 records belonging to the United States
government from the Combined Information Data Network Exchange Iraq database, of a value



32265

of $500 or less,?; to the excepted words and ?gures, Not Guilty; to the substituted words and
?gures, Guilty.

(Revised Speci?cation 4 of Charge II: In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, on or about 5 January
2010, remove from the tactical sensitive compartmented information facility, for an unauthorized
purpose, more than 380,000 records belonging to the United States government from the
Combined Information Data Network Exchange Iraq database, of a value of $500.00 or less,
such conduct being prejudicial to good order and discipline in the armed forces and being of a
nature to bring discredit upon the armed forces.)

To Speci?cation 5 of Charge II: Guilty, except the words and ?gures ?31 December
2009? and ?9 February 2010?, substituting therefore the words and ?gures ?5 January 2010? and
?3 February 2010?; further excepting the words ?information relating to the national defense, to
wit:?; further excepting the words ?with reason to believe such information could be used to the
injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted,?, substituting therefore
the words, ?did willfully communicate?; further excepting the words and ?gures ?in violation of
18 U.S. Code Section to the excepted words and ?gures, Not Guilty; to the substituted
words and ?gures, Guilty.

(Revised Speci?cation 5 of Charge II: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 5
January 2010 and on or about 3 February 2010, having unauthorized possession of more than
twenty classi?ed records from the Combined Information Data Network Exchange Iraq database,
did willfully communicate the said information, to a person not entitled to receive it, such
conduct being prejudicial to good order and discipline in the armed forces and being of a nature
to bring discredit upon the armed forces.)

To Speci?cation 6 of Charge II: Guilty, except the words and ?gures ?between on or
about 31 December 2009 and on or about 8 January 2010?, substituting therefore the words and
?gures ?on or about 5 January 2010?; further excepting the words and ?gures ?steal, purloin, or
knowingly convert another, a record or thing of value of the United States
or of a department or agency thereof, to wit: the Combined Information Data Network Exchange
Afghanistan database containing more than 90,000 records belonging to the United States
government, of a value of more than $1,000, in violation of 18 U.S. Code 641 substituting
therefore the words and ?gures ?remove from the tactical sensitive compartmentalized
information facility, for an unauthorized purpose, more than 90,000 records belonging to the
United States government from the Combined Information Data Network Exchange Afghanistan
database, of a value of $500.00 or less,?; to the excepted words and ?gures, Not Guilty; to the
substituted words and ?gures, Guilty.

(Revised Speci?cation 6 of Charge II: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, on or about 5 January
2010, remove from the tactical sensitive compartmented information facility, for an unauthorized
purpose, more than 90,000 records belonging to the United States government from the



32266

Combined Information Data Network Exchange Afghanistan database, of a value of $500.00 or
less, such conduct being prejudicial to good order and discipline in the armed forces and being of
a nature to bring discredit upon the armed forces.)

To Speci?cation 7 of Charge II: Guilty, except the words and ?gures ?3l December

2009? and ?9 February 2010?, substituting the words and ?gures ?5 January 2010? and ?3
February 2010?; further excepting the words ?information relating to the national defense, to
wit:?; further excepting the words ?with reason to believe such information could be used to the
injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted,?, substituting therefore
the words ?did willfully communicate?; further excepting the words and ?gures ?in violation of
18 U.S. Code 793 to the excepted words and ?gures, Not Guilty; to the substituted words
and ?gures, Guilty.

(Revised Speci?cation 7 of Charge II: In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 5
January 2010 and on or about 3 February 2010, having unauthorized possession of more than
twenty classi?ed records from the Combined Information Data Network Exchange Afghanistan
database, did willfully communicate the said information, to a person not entitled to receive it,
such conduct being prejudicial to good order and discipline in the armed forces and being of a
nature to bring discredit upon the armed forces.)

To Speci?cation 8 of Charge II: Guilty, except the words and ?gures ?steal, purloin, or
knowingly convert another, a record of thing of value of the United States
or of a department or agency thereof, to wit: a United States Southern Command database
containing more than 700 records belonging to the United States government, of a value of more
than $1,000, in violation of 18 U.S. Code 641,?, substituting therefore the words ?remove from
the tactical sensitive compartmentalized information facility, for an unauthorized purpose, more
than 700 records belonging to the United States government from the United States Southern
Command database, of a value of $500 or less,? to the excepted words and ?gures, Not Guilty; to
the substituted words and ?gures, Guilty.

(Revised Speci?cation 8 of Charge II: In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, on or about 8 March
2010, remove from the tactical sensitive compartmented information facility, for an unauthorized
purpose, more than 700 records belonging to the United States government from the United
States Southern Command database, of a value of $500.00 or less, such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature to bring discredit upon the
armed forces.) a

To Speci?cation 9 of Charge II: Guilty, except the words and ?gures ?between on or
about 8 March 2010 and on or about 27 May 2010?, substituting therefore the words and ?gures
?on or about 8 March 2010?; further excepting the words ?information relating to the national
defense, to wit:?; further excepting the words ?with reason to believe such information could be
used to the injury of the United States or to the advantage of any foreign nation, willfully
communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted,?,

32267

substituting therefore the words ?did willfully communicate?; further excepting the words and
?gures ?in violation of 18 U.S. Code to the excepted words and ?gures, Not Guilty; to
the substituted words and ?gures, Guilty.

(Revised Speci?cation 9 of Charge 11: In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, on or about 8 March
2010, having unauthorized possession of more than three classi?ed records from a United States
Southern Command database, did willfully communicate the said information, to a person not
entitled to receive it, such conduct being prejudicial to good order and discipline in the anned
forces and being of a nature to bring discredit upon the armed forces.)

To Speci?cation 10 of Charge II: Guilty, except the words and ?gures 1 April 2010?
and ?27 May 2010?, substituting therefore the words and ?gures ?l0 April 2010? and April
2010?; further excepting the words ?information relating to the national defense, to wit:?; further
excepting the words ?with reason to believe such infonnation could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit,
or cause to be communicated, delivered, or transmitted,?, substituting therefore the words ?did
willfully communicate?; further excepting the words and ?gures ?in violation of 18 U.S. Code
Section to the excepted words and ?gures, Not Guilty; to the substituted words and
?gures, Guilty.

(Revised Speci?cation 10 of Charge II: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 10
April 2010 and on or about 12 April 2010, having unauthorized possession of more than ?ve
classi?ed records relating to a military operation in Farah Province, Afghanistan occurring on or
about 4 May 2009, did willfully communicate the said infonnation, to a person not entitled to
receive it, such conduct being prejudicial to good order and discipline in the armed forces and
being of a nature to bring discredit upon the armed forces.)

To Speci?cation 11 of Charge II: Guilty, except the words and ?gures ?1 November

2009? and ?8 January 2010?, substituting therefore the words and ?gures ?10 April 2010? and
April 2010?; further excepting the language ?information relating to the national defense, to
wit:?; further excepting the language ?with reason to believe such information could be used to
the injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted,?, substituting therefore
the language ?did willfully communicate?; further excepting the language ?in violation of 18
U.S. Code Section to the excepted words and ?gures, Not Guilty; to the substituted
words and ?gures, Guilty.

(Revised Speci?cation 1 1 of Charge II: In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 10
April 2010 and on or about 12 April 2010, having unauthorized possession of a ?le named
PAX.zip? containing a video named PAX.wmv?, did willfully communicate the
said information, to a person not entitled to receive it, such conduct being prejudicial to good
order and discipline in the armed forces and being of a nature to bring discredit upon the armed
forces.)



32268

To Speci?cation 12 of Charge II: Guilty, except the words and ?gures ?steal, purloin, or
knowingly convert another, a record or thing of value of the United States
or of a department or agency thereof, to wit: the Department of State Net-Centric Diplomacy
database containing more than 250,000 records belonging to the United States government, of a
value of more than $1,000, in violation of 18 U.S. Code Section 641?, substituting therefore the
words and ?gures ?remove from the tactical sensitive compartmentalized information facility,
for an unauthorized purpose, more than 250,000 records belonging to the United States
government from the Department of State Net-Centric Diplomacy database, of a value of
$500.00 or less,? to the excepted words and ?gures, Not Guilty; to the substituted words and
?gures, Guilty.

(Revised Speci?cation 12 of Charge II: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 28
March 2010 and on or about 4 May 2010, remove from the tactical sensitive compartmented
information facility, for an unauthorized purpose, more than 250,000 records belonging to the
United States government from the Department of State Net-Centric Diplomacy database, of a
value of $500.00 or less, such conduct being prejudicial to good order and discipline in the
armed forces and being of a nature to bring discredit upon the armed forces.)

To Speci?cation 13 of Charge II: Guilty, except the words and ?gures ?27 May 2010?,
substituting therefore the words and ?gures ?4 May 2010?; further excepting the words
?knowingly exceeded authorized access on a Secret Internet Protocol Router Network computer,
and by means of such conduct having obtained information that has been determined by the
United States government pursuant to an Executive Order or statute to require protection against
unauthorized disclosure for reasons of national defense or foreign relations, to wit:?, substituting
therefore the words ?unauthorized possession of?; further excepting the words ?willfully
communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted?,
substituting therefore the words ?did willfully communicate?; further excepting the words ?with
reason to believe that such information so obtained could be used to the injury of the United
States, or to the advantage of any foreign nation, in violation of 18 U.S. Code Section
to the excepted words and ?gures, Not Guilty; to the substituted words and ?gures,
Guilty.

(Revised Speci?cation 13 of Charge II: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 28
March 2010 and on or about 4 May 2010, having unauthorized possession of more than seventy-
?ve classi?ed United States Department of State cables, did willfully communicate the said
information, to a person not entitled to receive it, such conduct being prejudicial to good order
and discipline in the armed forces and being of a nature to bring discredit upon the armed
forces.)

To Speci?cation 14 of Charge II: Guilty, except the words and ?gures ?15 February
2010? and ?18 February 2010", substituting therefore the words and ?gures ?14 February 2010?
and ?1 5 February 2010?; further excepting the words ?knowingly exceeded authorized access on
a Secret Internet Protocol Router Network computer, and by means of such conduct having



32269

obtained information that has been determined by the United States government pursuant to an
Executive order or statute to require protection against unauthorized disclosure for reasons of
national defense or foreign relations, to wit:", substituting therefore the words, ?unauthorized
possession of?; further excepting the words ?willfully communicate, deliver, transmit, or cause
to be communicated, delivered, or transmitted?, substituting therefore the words ?did willfully
communicate?; further excepting the words and ?gures ?with reason to believe that such
information so obtained could be used to the injury of the United States, or to the advantage of
any foreign nation, in violation of 18 U.S. Code Section to the excepted words and
?gures, Not Guilty; to the substituted words and ?gures, Guilty;

(Revised Speci?cation 14 of Charge II: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 14
February 2010 and on or about 15 February 2010, having unauthorized possession of a classi?ed
United States Department of State cable titled ?Reykjavik-13?, did willfully communicate the
said information, to a person not entitled to receive it, such conduct being prejudicial to good
order and discipline in the armed forces and being of a nature to bring discredit upon the armed
forces.)

To Speci?cation 15 of Charge 11: Guilty, except the words and ?gures ?between on or
about 15 February 2010 and on or about 15 March 2010?, substituting therefore the words and
?gures ?on or about 8 March 2010?; further excepting the words ?information relating to the
national defense, to wit:?; further excepting the words ?with reason to believe such information
could be used to the injury of the United States or to the advantage of any foreign nation,
willfully communicate, deliver, transmit, or cause to be communicated, delivered, or
transmitted,??, substituting therefore the words ?did willfully communicate?; further excepting the
words and ?gures ?in violation of 18 U.S. Code Section to the excepted words and
?gures, Not Guilty; to the substituted words and ?gures, Guilty.

(Revised Speci?cation 15 of Charge 11: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, on or about 8 March
2010, having unauthorized possession of a classi?ed record produced by a United States Army
intelligence organization, dated 18 March 2008, did willfully communicate the said information,
to a person not entitled to receive it, such conduct being prejudicial to good order and discipline
in the armed forces and being of a nature to bring discredit upon the armed forces.)

To Speci?cation 16 of Charge II: Not Guilty.

To Charge Guilty.

To Speci?cation 1 of Charge Not Guilty.

To Speci?cation 2 of Charge Not Guilty.

To Speci?cation 3 of Charge Not Guilty.

To Speci?cation 4 of Charge Not Guilty.

To Speci?cation 5 of Charge Guilty.
To Charge Guilty.

mm:
Trial by Military Judge Alone.

Maximum Punishment:

32270

The maximum punishment authorized in this case, based solely on PFC Manning?s guilty
plea is: to forfeit all pay and allowances, to be reduced to Private, E-l, to be con?ned for 1,290

months (107 years and six months), and to be dishonorably discharged from the service.
Expected Motions:
Motion to Dismiss: Speedy Trial under Article 10 and RCM 707;
Motion to Dismiss: Unlawful Pretrial Punishment under Article 13; and

Motion to Dismiss: Unreasonable Multiplication of Charges for Findings and
Sentencing (after announcement of Findings).

Respectfully submitted,



DAVID EDWARD COOMBS
Civilian Defense Counsel

32271

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE CALCULATION OF
MAXIMUM PUNISHMENT

V.

MANNING, Bradley E., PFC

us. Army.

Headquarters and Headquarters Company, U.S.
Army Garrison. Joint Base Myer-Henderson Hall.
Fort Myer, VA 2221 1

DATED: 25 October 2012



l. The Defense calculates the maximum punishment authorized in this case. based solely on
PFC Manning?s guilty plea to be a dishonorable discharge, forfeiture of all pay and allowances,
and confinement for 1,290 months (107 years and 6 months). The Defense reaches this
calculation as follows:

a) Specification 1 of Charge ll: Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 2 years. Court?s Ruling at Appellate Exhibit CCXIX.

b) Speci?cation 2 of Charge ll: Dishonorable discharge, forfeiture of all pay and
allowances, and con?nement for 10 years. Court?s Ruling at Appellate Exhibit CCXIX.

c) Specification 3 of Charge ll: Dishonorable discharge, forfeiture of all pay and
allowances. and confinement for 10 years. Court?s Ruling at Appellate Exhibit CCXIX.

(1) Specification 4 of Charge ll: Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for I year. Court?s Ruling at Appellate Exhibit CCXIX which
determined that the clause 1 and 2 offenses charged using the elements of 18 U.S.C. Section 641
are closely related to Article l2l. UCMJ, Larceny of Military Property of a value in excess of
$500.00. Since PFC Manning is pleading to military property of a value of $500.00 or less, the
Defense looks to the maximum punishment under Article 121, UCMJ. Larceny of Military
Proper of a value of $500.00 or less. The maximum punishment for that offense is a bad-conduct
discharge, forfeiture of all pay and allowances, and confinement for year.

e) Specification 5 of Charge ll: Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for l0 years. Court's Ruling at Appellate Exhibit CCXIX.

0 Specification 6 of Charge ll: Bad-conduct discharge, forfeiture of all pay and
allowances. and confinement for 1 year. Court?s Ruling at Appellate Exhibit CCXIX which
determined that the clause 1 and 2 offenses charged using the elements of 18 U.S.C. Section 641
are closely related to Article 121, UCMJ, Larceny of Military Property of a value in excess of



raga or PAGES

saova


JJEIIHXFI



32272

$500.00. Since PFC Manning is pleading to military property ofa value of $500.00 or less, the
Defense looks to the maximum punishment under Article 121, UCMJ, Larceny of Military
Proper of a value of $500.00 or less. The maximum punishment for that offense is a bad-conduct
discharge, forfeiture of all pay and allowances, and con?nement for 1 year.

g) Speci?cation 7 of Charge 11: Dishonorable discharge, forfeiture of all pay and
allowances, and con?nement for 10 years. Court?s Ruling at Appellate Exhibit CC XIX.

h) Speci?cation 8 of Charge 11: Bad-conduct discharge, forfeiture of all pay and
allowances. and con?nement for 1 year. Court?s Ruling at Appellate Exhibit CCXIX which
determined that the clause 1 and 2 offenses charged using the elements of 18 U.S.C. Section 641
are closely related to Article 121, UCMJ, Larceny of Military Property of a value in excess of
$500.00. Since PFC Manning is pleading to military property of a value of $500.00 or less, the
Defense looks to the maximum punishment under Article 121, UCMJ, Larceny of Military
Proper of a value of $500.00 or less. The maximum punishment for that offense is a bad-conduct
discharge, forfeiture of all pay and allowances, and con?nement for 1 year.

i) Speci?cation 9 of Charge 11: Dishonorable discharge, forfeiture of all pay and
allowances, and con?nement for 10 years. Court?s Ruling at Appellate Exhibit CCXIX.

j) Speci?cation 10 of Charge 11: Dishonorable discharge, forfeiture of all pay and
allowances, and con?nement for 10 years. Court?s Ruling at Appellate Exhibit CCXIX.

k) Speci?cation 1 1 of Charge II: Dishonorable discharge, forfeiture of all pay and
allowances, and con?nement for 10 years. Court?s Ruling at Appellate Exhibit CCXIX.

l) Speci?cation 12 of Charge II: Bad-conduct discharge, forfeiture of all pay and
allowances, and con?nement for 6 months. Court?s Ruling at Appellate Exhibit CCXIX which
determined that the clause 1 and 2 offenses charged using the elements of 18 U.S.C. Section 641
for this offense are closely related to Article 121, UCMJ, Larceny of Non-Military Property of a
value in excess of $500.00. Since PFC Manning is pleading to non-military property of a value
of $500.00 or less, the Defense looks to the maximum punishment under Article 121, UCMJ,
Larceny of Non-Military Proper of a value of $500.00 or less. The maximum punishment for
that offense is a bad-conduct discharge, forfeiture of all pay and allowances, and con?nement for
6 months.

In) Speci?cation 13 of Charge II: Dishonorable discharge, forfeiture of all pay and
allowances, and con?nement for 10 years. Court?s Ruling at Appellate Exhibit CCXIX.

n) Speci?cation 14 of Charge 11: Dishonorable discharge, forfeiture of all pay and
allowances, and con?nement for 10 years. Court?s Ruling at Appellate Exhibit CCXIX.

o) Speci?cation 15 of Charge 11: Dishonorable discharge, forfeiture of all pay and
allowances, and con?nement for 10 years. Court?s Ruling at Appellate Exhibit CCXIX.



32273

p) Speci?cation 5 of Charge Dishonorable discharge, forfeiture of all pay and
allowances, and con?nement for 2 years. Article 92, UCMJ, Violation of or failure to obey
lawful general order or regulation.

2. The Defense has covered the maximum punishment with PFC Manning. PFC Manning
understands that based upon his plea of guilty alone, this Court could sentence him to the

maximum punishment as stated above.

Respectfully submitted,

ID EDWARD MBS
Civilian Defense Counsel

32274

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
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: Prosecution Request
for Leave until 10 December 2012
to Provide Detailed Plan for
Maintaining Appellate Exhibits

)

)

26 October 2012

On 25 October 2012 the Government requested leave ofthe Court until 10 December 2012 to provide the
Court with a detailed plan to maintain the classified appellate exhibits (AEs) that will not accompany the
record of trial. On 5 October 2012, the Court ordered the Government to present to the Court NLT the
article 39(a) session scheduled to begin 30 October 2012, a plan to maintain classified AEs not
accompanying the record of trial (ROT) in one location under the custody of one custodian with a
systematic periodic review to ensure accountability of the AEs through any appellate review. The
Defense does not oppose,
The Government request for leave of Court until 10 December 2012 is GRANTED.

DENISE R. LIND
COL, JA
Chief Judge, l " .ludicial Circuit

APPELLATE EXHmm f :
P. GE REFERrNCED:
r7

SaOVd

•• •

'

"dO

30Vd

aaoNa^aja^ ao c<
"iiaiHxa iivn^"

c

32275

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 of
Federal Bureau of Investigation,
Department of State, and
Department of Homeland Security
Records
25 October 2012

On 25 October 2012, the United States produced to the delense the following materials:
(I)Federal Bureau oflnvestigation (FBI) records for which the Court approved limited
disclosure under Military Rule ofEvidence (MRE) 505(g)(2)in its ruling datedl80ctober 2012
(BATES 00523806 00525868); (2) DepartmentofState(DOS)recordslorwbicbtheCourt
approved limited disclosure under MRE 505(g)(2)in its ruling datedl8October2012(BATES
00525870 00526366); and (3)one Department ofHomeland Security(DHS)recordf^rwhich
the Court approved limited disclosure under MRE 505(g)(2)in its ruling dated 28 September
2012 (BATES 00525869)
As of25 October 2012,the United States has produced to the delense all FBIrecords, all
non-captioned DOS records, and all DHS records that are discoverable or otherwise subject to
production. Sincel60ctober 2012,all DOS captioned records have been available for
inspection by the delense at the DOS facility.

ASHDENFEIN
MAJ,JA
TrialCounsel
Icertilytbatlserved or caused to be servedatrue copy ofthe above on Mr. David Coombs,
Civilian Delense Counsel via electronic mail, on 25 October 2012.

ASHDEN FEIN
MAJ, JA
Trial Counsel

APPELLATE E X H I B W M
PAGE REFERENCED:
PAGE
OF
PAGES

^
'

32276

UNITEDSTATESOF AMERICA
V.

Manning,BradleyE.
PFCUS.Army,
HHCUSArmyGarrison,
JointBase Myer-Henderson Hall
FortMyer, Virginia 22211

Prosecution Notification
to the Court of
Department ofState Files
22 October 2012

As ofl60ctober 2012,the United States has made available for inspection by the delense all
Department ofState documents for which the Court approved limited disclosure under Military
RuleofEvidence(MRE) 505(g)(2) in its rulings dated 28 September 2012andl8October 2012
The prosecution will disclose in classilied discovery all non captioned documents by 26 October
2012. All captioned documents are available for inspection at the Department ofState.

J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel
I certify that I served or caused to be served a true copy of the above on Mr. David Coombs,
Civilian Defense Counsel via electronic mail, on 22 October 2012.

J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel

APPELLATE EXHIBrTi^
PAGE REFERENCED:
PAGE
OF
PAGES

32277

UNITED STATES OF AMERICA
Prosecution Disclosure
to tbe Defense
Manning, Bradley E.
PFCU.S.Army,
HHC, U.S. Army Garrison,
Joint Base Myer Henderson Hall
FortMyer, Virginia 22211

26October2012

On 26 October 2012,tbe United States fled an ^^^^^^^^^ motion requesting the Court
consideramotion^^^^^^^^ and ^.:^^^^^^ under MRE 505(g)(2)and for an additional protective
order for classilied information under MRE 505(g)(1). See Enclosure. Tbe United States seeks
to protect information relating to intelligence activities, intelligence sources or methods, and
loreign relations or loreign activities oftbe United States, all within the national security
interests ofthe United States.

ASHDENFEIN
MAJ,JA
TrialCounsel
Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David Coombs,
Civilian Delense Counsel via electronic mail, on 26 October 2012.

ASHDENFEIN
MAJ,JA
TrialCounsel
End
Government ^^^^^^^^Motion(unclassilied, redacted version)

APPELLATE E X H I B I T ^ ^
PAGEREFERENCED:
PAGE
OF
PAGES

\\Unmarked redactions were present

when Army received this document//

32278

LTNITED STATES OF AMERICA Government in camera Motion to

Redaet or Delete Classi?ed lnformation

v. from Evidence Made Available

to the Accused under MRE 5ll5tt.'.lt2)
Manning. Bradlev li. and for an Additional Protective ()rder
US. Army. for Classi?ed Information
llH(?. U.S. Garrison. under MRE
Joint Base Hall
Fort Myer, Virginia 2221] 4) 26 October 20l2

RELIEF SOUGHT

(U) COMES the United States of America. by and through undersigned eoiinsel.
and respectfully requests tltis Court: (1) consider this motion and the enclosures in and
under Military Rule of Evidence (MRE) 5llS(g)(2); (2) affirmatively authorize
reductions and "deletions" of classified information from evidence made available to the defense:
and (3) isstie an additional protective order. under MRE 5tl5(g)(l). precluding defense and
their forensic expert from accessing, irrelevant "deleted" classified information on the
media made available to the defense for examination.? The information sought to be redacted or
deleted from discovery will not be used by the prosecution, is not relevant to this court?martial. is
not favorable to the accused and material to guilt or punishment, or relevant and necessary for
production under Rule for Courts-Martial (RCM) The information is also not
to enable the accused to prepare for trial." MRE

BURDEN 0 AND BURDEN OF PROOF



(U) 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 005(c)(2). The burden ot
proof is by a preponderance of the evidence. RCM

FACTS:



(U) For the purposes of this motion. the United States does not intend to actually "delete" any digital
but impose digital restrietioiis. coupled with a Court order, which would prevent the defense and their computer
lorerisie experts from accessing or viewing the "deleted" digital liles. This process is described below. See

l~'or the purposes olthis motion. the United States added footnotes. with appropriate Bates numbers. to am
portion of the Iacts that rel?erence classitied material that has been provided to the in elassitied

. ..
-
l? .

32279

(U) is Bates
(U) A "7-zap" tile is a mu archive with a high ratio. similar to a "rip" filc.
(last 37 2012).

N)

32280

(U) ?a August 2012. the United Suites sent I-Siielustire 9 (diseuvery letter) to the delense thmuigh tliezr
experts lit

7 (U) These erieltisures zire Bates and


'4 (U) These enclosures were uriginally produced in their original furm cm a disc without Bates numherx
because they were digital 1ile.\? with unique Hash values. The del'ens.e received copies til" the enmpaet disc on 7
August 2013 at the Naval War Cnllege via and Ill August 2012 via hand delivery to MAJ |lurle_\' 5_e_e
lirielosure 14 (email to delense. dated 0 2012 with delivery eniilirnizition and Depurlntent nl the
/\rm_v l-lirni Illil).

(U) A thumb drive or Secure Digital (SD) card is (1 memory card developed for use in portable
(last 27 September 2012). They have become a widespread niemis zit"
storing data in ?d small device. Lil.

Classified by: Ashden Fein
Derived from: Multiple Sources

Declassify 25)? I-L

PAGF. A
OF PAGES

PAGE



32281



(U) There is no evidence that the accused communicated directly with any terrorist or
terrorist organi/.ation or that any terrorist or terrorist organization communicated directly with
the accused.



(U) The United States does not request any witnesses he 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) This motion is suhinitted affirmatively by the United States and wt in response to a
discovery request or motion to compel discovery. The defense has been aware of the general
nature of this evidence since 8 November 2011, as this evidence was briefed to the defense
during a presentation ofthe government?s ease prior to the Article 32 investigation. By
affirnialively approaching the Court under MRE rather than wait for any potential
defense discovery request or motion, the United States is seeking to prevent delay in an effort to
move the case forward in accordance with the current calendar.

(U) lfclassi?ed information is at issue in a court?martial, the United States may agree to
disclose the classified information to the defense under a protective order. MRE 5tl5(g)(
Additionally. the United States may motion the Court to "authorize (A) the deletion of specific



.
4 .



A PPFI ll I

32282

items ofclassified information from documents to he made available to the [accused], (B) the
substitution of a portion or summary of the information for classified documents, or (C) the
substitution of a statement admitting relevant facts that the classified information would tend to
prove." MRF. The military judge "shall authorize" these alternative forms, unless she
determines "the disclosure of the classified information itself is necessary to enahle the accused
to prepare for trial." My lf a motion is filed under MRE then upon request of the
United States, the motion "shall" he considered by the militaryjudge in camera and "shall not be
disclosed to the accused." lt_l_.

(U)The procedures outlined in MRE 5t)5(g)( J) and (2) apply when the United States
voluntarily discloses information and does not withhold classified information under t\-lRF.
If the United States intends to withhold information under MRE St)5(c). then the United
States must move for an in proceeding under MRL. ohtain an affidavit
demonstrating that disclosure of the information reasonably could he expected to cause damage
to the national security under MRE and follow the notice procedures outlined under
MRE For the purposes of this filing, the equity holder. through the
prosecution, is voluntarily disclosing redacted documents and files, authorizing limited access to
the digital media, and is y_o_t withholding any classified information under MRE and MRE
5(l5(i).

(U) The United States requests this Court authorize the redaction of classified
information frotn documents previouslv provided to the defense in discovery hv determining
the redacted is not discoverable under any relevant standard.

Ui

32283

(U) Should the Court find the redacted information is discoverable under

or subject to production under RCM 7t)3(f), or "necessary to enable the
accused to prepare for trial" under MRF. then the United States requests the
opportunity to either tlladdress the findings with the relevant government agency to
determine different alternative under MRE is appropriate and file that
alternative with the Court. or (3) allow for the relevant government agency to claim a privilege
under MRF, 5()5(cl and the United States to move for an in (?umera proceeding under MRE
5tt5(i).

(U) As stated above. the United States will not use any portion of these
documents not disclosed to the defense during any portion ofthe trial. This includes rehuttal and
rule ofcompleteness if the defense introduces or references anything in the un?redacted portions.

(U) The United States this Court authorize the "deletion" of classified
information from certain dismal media that is not discoverable under any relevant standard.

I APPELLATE EXHIBIT
6



32284

(U) "Slnuk space" is dcl}r1cd:aslhc "space between the and ufa file and ul" disk clusicr it is in
(lust 1

21:12

32285

(U) Should the Court find the deleted information is discoverable under RCM
7tll(a)(6) or 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 findings with the relevant government agency to
determine whether a different alternative under MRE 5(l5(g)(2) is appropriate and file that
alternative with the Court, or (2) allow for the relevant government agency to claim a privilege
under l]\jRF. 5tl5(c) and the United States to move for an in camera proceeding under MRF,
5tt5(i).

(U) As stated earlier, the United States will not use any portion of the remaining
digital files not disclosed to the defense during any portion of the trial.

(U) If the Court determines that remaining digital files are not discoverable under_a_n_y
relevant standard. and authorizes the "deletion" of classified information from certain c_l_igit_a_l
media, then the United States requests this Court issue aprotective order precluding the defetisc.
including their forensic examiners, from examining any other file on the digital media. and
precludingthe defense from viewing the redacted contents of the documents during a forensic

(U) On 3 August 2012, the United States made forensic images of the digital
media available to the defense and their security experts for forensic inspection. in order to
ensure the defense has the ability to adequately examine the digital files that the United States
intends to use as evidence. See Enclosure 9. To assist the defense and ensure proper
accountability of the digital media, the United States acquired a classified forensic computer,
with Lab 3.x installed as industry standard forensic analysis software. Using the
AccessData Lab 3.x software. the United States can restrict access to certain documents and
authorize access to other documents for anyone who uses the computer. Within the program, the
process of restricting access is called "privileging." If the Court authorizes the deletion of the
above information. then all remaining digital tiles, except the digital files the United States
intends to use during trial, will not be accessible to the defense or their computer forensic
examiner. This program and process will allow the defense and their computer forensic
examiner to examine the metadata associated with the four relevant files which will he used by
the United States, so the defense may validate the forensic process of pulling the files from the
media and cross-examine the FBI forensic examiner, if they choose. The "privileging" has
already occurred on the classified forensic computer. As such, the process will not take any
additional time to complete if the Court authorizes this deletion.

(U) a forensic examiner conducts analysis, he or she has access to the
following information. along with being able to view the content, for the "unprivileged" digital
?les: file name; item number; acquisition MD5 and SHAI hashes; the created date and time:

'3 (U) l'he United States seeks to protect information relating to intelligence activities. intelligence sources or
methods. and foreign relations or foreign activities of the United States. all within the national security interests of
the United States.

32286

accessed date and time; modified date and time; "P-Size" for physical size: "L-Size" for logical
size; file type, and the entire native file path.? When a forensic examiner "clicks" on an
"unprivileged" file to view the forensic metadata, the program allows the examiner to view the
contents of the ?le without litnitation. lf the Court authorizes the redactiotts of the files
referenced above, the forensic examiners would be able to scroll through the original documents
on the digital media and view the redacted original content. essentially eliminating the purpose
of the redactions. Therefore, the United States requests the Court issue the enclosed protective
order. under MRE 505(g)(l), precluding the defense, including their forensic examiners. from
examining the contents of the two above-mentioned ?les on the digital media. Specifically. the
defense, including their forensic examiners should be precluded from viewing the contents of the
redacted documents during a forensic examination, if any. Sgt; Enclosure l6. Additionally. the
United States requests the Court order any defense forensic examination he conducted under the
supervision of the Court Security Of?cer to ensure proper enforcement of the order.

'3 (U) The following definitions are derived from Enclosure I3, which is a glossary terms found in Ent ase
Forensic Software. which uses industry standard terms also found in AccessData 3.x: (1) tile name: ?is the name
Windows gives the entry using the DOS 8.3 naming convention," (2) item number. which is produced by ADI ab
and relcrenced in the forensic report; (3) acquisition MD5 and Sl-lAl hashes: "is a 128-bit value for a tile entry
generated by :1 hash analysis process" using either the or algorithm; (4) the created date and time
"typically rellects the date/time the l'ile/folder was created at that location. . notable exception to this is the
extraction of tiles/tolders from a ZIP [tlhosc objects will carry the created date/time as they existed when
the objects were placed in the (5) accessed date and time: ?displays the last accessed - this
typically reflects the last time the operating system or any compliant application touched the tile (such as viewing,
dragging. or (6) modi?ed date and time: this typically reflects the last time the operating system
or any compliant application altered the file; (7) "P-Size" for physical size: "specifies the size of the storage areas
allocated to the file] (8) "L?Size" for logical size: "specifies the file size as the operating system the
lile|;|" (9) tile type: "identities the type of file: after a Signature Analysis is run. this data is generated from the
and the entire native lile path: "identifies the location the tile is located within the evidence file.
including the evidence lile name and a volume

APPELLATF. EXHIBIT
PAGE REFERENCED:
PAGE OF PAGES



32287



CONCLUSION

(U) The United States respectfully requests this Court: (l)consider this motion and the
enclosure: in (?(lHl(?7?ll and at pane under Military Rule of [Evidence (MRIZ) (2)
affirmatively authorize reductions and deletions of classified information from evidence made
available to the defense: and (3) issue an additional protective order, under MRE
precluding the defense and their forensic expert from accessing irrelevant "deleted"
information on the digital media made available to the defense.



.

ASHDEN
MAJ. JA
Trial Counsel



3Au ust 2()l2 classified?



9. Discover Letter






l3. (U) Excerpt from F.nC?ase User Manual
I4. (U) Email to Dcferise. dated 6 August 2012 with FEDEX delivery confirmation and
De artment of the Armv Form 200

I6. (U) Proposed Protective Order [classified

-
10



32288

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
RULIN
v. LESSER INCLUDED
OFFENSE MAXIMUM
MANNING, Bradley E., PFC PUNISHMENTS

US. Army,

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

DATED: 26 October 2012



On l9 July 2012 the Court issued a ruling regarding the maximum punishment for specification I
of Charge II, and for the lesser included offense theories under clause 1 and 2 of Article I34 for the
offenses charged under all 3 clauses of Article I34 (I8 U.S.C. Section 641, I8 U.S.C. Section 793(e) and
I8 U.S.C. l030(a)(l)). The maximum punishments in that ruling assumed that the lesser included
offenses under clauses I and 2 would include all of the elements charged except the clause 3 statute,
where applicable. In the litigation culminating in the 19 July 2012 ruling, the Court was not requested to
and did not consider the maximum punishment for any clause 1 or 2 offense or guilty plea involving a
residuum of the elements charged.

On I5 October 2012, the Defense ?led a Notice of Plea, Forum, and Expected Motions. On 2'3
October 20 2, the Defense emailed the Court a Defense Revised Notice of Plea and Forum that is
different from the 15 October 2012 submission in that it proffers pleas involving a residuum of elements.
On 23 October 2012, via email, the Court ordered the Defense to provide a speci?cation by speci?cation
breakdown of the maximum punishment by speci?cation based on the proposed defense plea. On 25
October 2012, the Defense emailed the Court the Defense Calculation of Maximum Punishment with the
calculations reached relying on the Court?s I9 July 20l2 order. This reliance was misplaced as the I9
July 2012 order does not address clause I and 2 lesser included offenses with a residuum ofelements as
contemplated by the accused?s proferred pleas.

On I8 October 2012, the Court in consultation with the parties, established the following
suspense dates for ?lings regarding the accused?s proferred pleas and maximum punishments based on
the accused?s proferred pleas: 5 November 2012 ?ling; I6 November 2012 response; 23 November 20l2
reply. Any litigation involving the accused?s proferred pleas is scheduled to be addressed during the
Article 39(3) session 27 November 20 I 2 2 December 20l2.

ORDERED: The parties will address the following issues in their ?lings regarding the accused's
proferred pleas speci?cation by speci?cation:

I. Is the proferred plea a lesser included offense of the charged offense or does it contain amendments to
the speci?cation requiring Convening Authority approval to be a referred offense? US. v. Morton. 69
MJ. [2 (C.A.A.F. 2010).

2. Assuming the Court accepts the proferred plea as a lesser included offense of the Charged offense or
the Convening Authority approves amendment of the speci?cation, what is the maximum punishment for
each speci?cation in accordance with the accused?s proferred plea IAW RCM l003(c)((l)(B) and United
States v. Beaty, 70 MJ. 39 (C.A.A.F. 201 I).

APPELLATE EXHIBIT
PAGE
PAGE OF PAGES

32289

So ORDERED this 26"? day of October 2012.

COL, IA
Chief Judge, Ist Judicial Circuit



PAGE REFER ENCED:

2 PAGE OF



32290

Appellate Exhibit 367
17 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

32291

Appellate Exhibit 36^
lOpages
classified
"SECRET"
ordered sealed for Reason2
andReason7^go^emnTent^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32292

Appellate Exhibit 36^
Enclosurel
ipages
classified
"SECRET"
ordered sealed for Reason2
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32293

Appellate Exhibit 36^
Enclosure2
ipages
classified
"SECRET"
ordered sealed for Reason2
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32294

Appellate Exhibit 36^
Enclosure3
27 pages
classified
"SECRET"
ordered sealed for Reason2
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32295

Appellate Exhibit 36^
Enclosures
17pages
classified
"SECRET"
ordered sealed for Reason2
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32296

Appellate Exhibit 36^
Enclosures
ICE^
classified
"SECRET"
ordered sealed for Reason2
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32297

Appellate Exhibit 36^
Enclosures
7pages
classified
"CO^EIT^E^T^AE"
ordered sealed for Reason3
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32298

Appellate Exhibit 36^
Enclosure7
27 pages
classified
"SECRET"
ordered sealed for Reason2
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32299

Appellate Exhibit 36^
Enclosures
17pages
classified
"SECRET"
ordered sealed for Reason2
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32300

Appellate Exhibit 36^
Enclosures
3pages
classified
"SECRET"
ordered sealed for Reason2
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32301

Appellate Exhibit 36^
EnclosurelO
ipages
classified
"CO^EIT^E^T^AE"
ordered sealed for Reason3
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32302

Appellate Exhibit 36^
Enclosurell
ICT^
classified
"SECRET"
ordered sealed for Reason2
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

32303

Appellate Exhibit 36^
Enclosurel2
21 pages
classified
"SECRET"
ordered sealed for Reason2
andReason7^go^emment^
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to 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

32304

UNCLASSIFIED

Government in camera Motion to
Redact or Delete Classified Information
from Evidence Made Available
to the Accused under MRE 505(2)(2)
and for an Additional Protective Order
for Classified Information
under MRE 505(g)(1)



26 October 2012
Enclosure 13

APPELLATE EXHIBIT ,8
PAGE REFERENCED:
PAGE OF PAGES



. 5

32305

UNCLASSIFIED



(Iuidancc Inc

Tel:
Fax:
email:
web:

Professional
Development
8: Training



Guidance Saftware

EnCase?

?Computer Forensics I

En(Tase? Computer Forensics I m2. :4 2m}-I;
Copyright ?2008, Guidance Software, Inc.
F.nC:1sc. I9 .1 of I--.

N0 par?. nfihis publiczmun may he copied wilhmr the wrillcn nr" (3uiuI;1nL?c ha.-

UNCLASSIFIED I

32306

UNCLASSIFIED



18 Navigating l_~nCasc? Forensic

Table Pane

By default the Table Pane is in the Table view. Within this view are the subfoldcis and tiles that
are contained within the folderts) that are highlighted or included (Set lnclude Option) in the Tree
Pane. Highlighting or including (Set lnclude Option) 21 folder affects the display in the Table
Pane as previously explained.

The Iitglilightiizg and Set Include Option features are intended to view desired ?les and folders in
the Table Pane. lf there are one or tnore folders designated with the include feature. the
highlighting feature will not change the number of ?les/folders displayed in the Table Pane.
This differs from the Select box located to the right ofthe pointed box. This is intended to select
with a blue check the ?les and folders on which to perform certain operations, including but not
limited to searching, signature analysis, copying, exporting. With the Set Include Option feature
activated. the select operation will not alter the number of ?les/folders displayed in the Table
Pane.

The Table view in the Table Pane displays many columns of information about the displayed
entries.

0 Name identifies the ?le/folder/volume. etc., in the evidence file
0 Filter specifies the name of the ?lter run to display this entry
0 ln Report indicates whether or not the item will appear in the Report view

0 I-'ile Ext displays the entry?s extension, which initially determines whether this entry is
displayed in the Gallery view

File Type identifies the type of ?le; after a Signature Analysis is run, this data is
generated from the results

0 File Category indicates the category of the ?le from the File Type table
0 Signature displays the results of a file signature analysis

0 Description describes the of the entry - whether it is a file or folder. deleted. or
5 deletedloverwritten
- ls Deleted displays ?Yes" if the entry is in a deleted state; ?No" if it is not
NOTE: The display depends on how the Show True/False options were set in the
menu.
0 Last Accessed displays the last accessed date/time this typically reflects the last titnc
the operating system or any compliant application touched the file (such as viewing,
dragging. or right?cliclting). Entries on FAT volumes do not have a last accessed time.

0 File Created typically reflects the date/time the file/folder was created at that location.
A notable exception to this is the extraction of files/folders from a ZIP archive. Those
objects will carry the created date/time as they existed when the objects were placed in
the archive.

0 Last Written rellects the date/time the ?le was last opened, edited. and then saved

0 Entry Modi?ed indicates for NTFS and Linux when the administrative data for the file
was last altered

UNCLASSIFIED

32307

UNCLASSIFIED



Navigating EnCase? Forensic 1'-v

0 File Deleted displays the deleted date/time ifthe ?le is documented in the Recycle Bin?
lnfo2 file

0 File Acquired identi?es the date/time the evidence ?le in which this entry resides was
acquired

0 Logical Size specifies the file size as the operating system addresses the file
Physical Size specifies the size of the storage areas allocated to the file
0 Starting Extent identi?es the starting cluster of the entry

0 File Extents displays the cluster fragments allocated to the file. (?lick within this colun
for an entry. and then click on the Details tab in the View Pane to see the cluster
fragments.

Permissions shows security settings ofa file or folder
0 References lists the number of times the selected entry is bookmarked

0 Physical Location is the number of bytes into the device at which the data for an entry
begins

0 Physical Sector lists the sector number into the device at which the data for an entry
begins

0 Evidence ?ile is where the entry resides

0 File Identi?er is an index number for a Master File Table (NTFS) or an lnode Table
(Linux/Unix)

Hash Value is a 1'28-bit value for ti ?le entry generated by a hash analysis process

0 Hash Set displays the hash set to which a ?le belongs generated by including hash sets i
a hash library in a hash analysis process

0 Hash Category displays the hash category to which at file belongs gciicraletl by includir
hash sets in a hash library in a hash analysis process

0 Full Path identifies the location the ?le is located within the evidence ?le, including the
evidence ?le name and a volume identi?er

0 Short Name is the name Windows gives the entry using the DOS 8.3 naming conventioi

Unique Name is used to display the name for ?les mounted with the Virtuui
File System (VFS) module in Windows Explorer

0 Original Path displays information derived from data in the Recycle Bin. l-?or ?les
within the Recycle Bin. this column shows where they originated when they were
deleted. and for deleted/overwritten ?les, this column shows the ?le that has overwritten
the original.

0 Symbolic Link is data pertaining to the equivalent of a Windows Shortcut in Linux and
Unix

0 ls Internal indicates whether the file is an internal system ?le such as the $3/tl?T on an
NTFS volume.

0 ls Overwritten indicates if the entry has been overwritten by a suhseqtiein object





32308



UNITED STATES OF AMERICA Government in camera Motion to
Redact or Delete Classi?ed Information
from Evidence Made Available
to the Accused under MRE 505(g)(2)
and for an Additional Protective Order

for Classi?ed Information



Manning, Bradley E.
PFC, U.S. Army,



HHC, U.S. Army Garrison, under MRE 505(g)(1)
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211 26 October 2012
Enclosure 14
UNCLASSQFEED APPELLATE

PAGE REFERENCED:
PAGE OF PAGES



UNCLASSHHED

Ford, Arthur Jr CW2 USARMY (US)

From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Monday, August 06, 2012 6:24 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)

Subject: Production and Discovery Update

David,

This email serves as an update and recap of the productions from the last week, including
today, and outstanding discovery requests the United States is tracking.

1. Classified Productions.

a. Tracking #2 7986 8499 9626 (delivered on 2 Aug) containing: NGA documents (13
Documents, BATES 00449582 - 00449764); and Joint Staff documents (4512 Documents,
BATES 00449943 - 00471793); HQDA documents (1318 Documents, BATES 00471794 00479054);
DIA documents (4825 Documents, BATES 00479055 - 00504418); ATF document (1 Document, BATES
00504419 - 00504420).

b. Tracking #2 7938 6252 6592 (delivered on 3 Aug) containing: DIA documents (53
Documents, BATES 00504653 - 00505060) and other classified documents, including
assessments by DTRA, USITC, DEA, and PIAB, and various CID documents (BATES #2 00505061 -
00505183).

c. Tracking 7938 6938 4403 (delivery scheduled for 7 August 2012) containing: (1) Disk
1- damage documents (BATES 00505205 00505256); other law enforcement documents
including enemy information and documents relating to one dataset (BATES 00505258 -
00505322); (2) Disk 2- other documents related to another dataset along with an attestation
certificate (BATES 00505323 - 00505808); (3) Disk 3- "Info Extracted from the FBI Disk?
(explained below); and (4) Disks 4 through 7 containing the classified enclosures to the
Government Motion to PreAdmit 2.

d. On Friday, 3 August 2012, CPT Morrow sent via SIPR a classified memorandum to all three
defense security experts (Hall, Ganiel, and Robillard), but addressed to you, titled
"Discovery Production". The purpose of this memorandum is to notify the defense that certain
forensic evidence is available for the defense and your forensic computer experts to view,
but on an identified computer. The memorandum explains what the evidence is and how it will
be made available. The underlying forensic evidence is for the four documents found at BATES
00505208-0050529. Additionally, these four documents reference two files that were also
extracted and produced on a separate classified CD labeled "Info Extracted from the FBI Disk"
(referenced above).

2. Unclassified Productions.

a. Tracking 7986 8527 6520 (delivered on 2 August 2012) containing: Various documents,
including confinement recordings and logs, IA and ATRRS training records, 201 file pages that
were not previously produced with BATES numbers but were included in the court filings, and
Int3!ink log attestation (BATES 00504421 - 00504481).

1

UNCLASSHUED

32310
UNCLASSIFEED

b. Tracking #2 7938 6321 2778 (delivered 3 August 2012) containing: Miscellaneous
documents and attestation certificate, including prior classification declaration and CID
memos (BATES 00505184 - 00505204).

c. Tracking 7938 6660 9289 (delivered 6 August 2012) containing the Int3!ink log
attestation re?produced with an updated BATES number and an MFR explaining the re?numbering
(BATES 00505257 - 00505257).

3. NSA Document Review. Per CPT Morrow?s email at 1129 on 3 August 2012, please coordinate
with Mr. Erik Dodson to inspect the NSA document.

4. Gap in Production Numbers. we are going through the damage assessment/impact reviews
which we provided for defense inspection and applying BATES As of now, only the DIA
(BATES 00504532?00504652) and Dos (BATES 00504482-00504531) documents have been given
BATES #5 and we will manually BATES the specially controlled documents and provide during
the next session.

5. Delivery to MAJ Hurley. we attempted to deliver the classified material to MAJ Hurley on
both 3 August 2012 and 6 August 2012, but he is not in the office. when he returns, we will
coordinate delivery. we will continue to send the information to NNC.

6. Discovery Request, dated 9 July 2012. The prosecution is working with Quantico to search
for the requested video. Thus far, Quantico has been unsuccessful in its search. we will
let you know if the video is found or when we exhaust all available resources. The
prosecution intends to respond to your request by the end of the week, but as of now we have
been told that the memory card was reallocated and cannot be found.

7. Discovery Request, dated 1 August 2012. Understanding the urgency on this request, we
are currently working with Quantico MCB to determine what information still exists and is
available, especially considering most leaders have departed this summer. Once we ascertain
this information, we will then be able to quickly reply and expect to reply by the end of the
week. we will provide the defense with an update on Wednesday afternoon.

8. Article 13 Redactions. The only information that CPT von Elten identified that should be
redacted is information pursuant to the Court's order pertaining to individuals? names and
their duty positions, in order to protect their identify (not parties to the litigation).

His list should help you identify the places that we found while reading the pleading, but we
did not scrub the list to ensure that you complied with the Court's order.

9. Discovery Production. The prosecution is working to locate and produce the smock,
mattress, and blanket, per the Court?s order.

10. Unclassified Damage Assessments. The prosecution continues to coordinate with those
organizations that provided a classified damage assessment. A majority of those
organizations have denied the defense?s request, while others are vetting the request
throughout the organization to provide the prosecution an answer to the defense?s request.
Should any organization provide an unclassified version of their document, the prosecution
will disclose that material as soon as possible.

11. Speedy Trial witness List. The prosecution will provide you with a response regarding
the filing date for the defense?s Speedy Trial witness List tomorrow.

Thank you!

v/r
Ashden

2

UNCLASSIFIED

32311
UNCLASSIFIED

FedEx Express Us. Mail: PO Box 727
Customer Trace Memphis. TN 38194-4643
3875 Airways vard

Module H. 4th Floor le hone: 901-3%-3600
E30955 Merrphie, TN 38116

August 72012
Dear Customer.

The tolrowing is the proot-or-delivery for tracking number 793869384403.

Delivery Information:

Statue: Delivered Delivered to: Shippingmeoetving

Signed for by: RWEGIEL Delivery baton: 12 CHANDLER ST
NEWPORT, RI 02841

Service type: Priority Envelope Delivery date: Aug 7, 2012 09:58



lnforme?on:
Trucking number: 793869384403 Ship date: Aug 6. 2012
Welght 0.5 IbsI0.2 kg

Recipient.

President ATTN: Military Justice

Naval War Cottage OSJA.

686 CUSHING RD 103 3rd Avenue

NEWPORT, RI 02841 US 32 Suite 100

Fort McNair. DC 20319 US

Thank you for choosing FedEx Express.

FedEx Worldwide Customer Service
1.80o.GoFedEx 1.800.463.3339

UNCLASSIFIED

UNCLASSIFIED

32312

TRANSMITTAL RECORD

For use of nus Ic:m, see AR 25-50, the prupcnent agency is DCSPER

1. SECURITY CLASSIFICAIION 2 SHIPMENT NO



3 TITLEEFILEIDENTIFICATION
Sec BLOCK for 0| CD5

5 SHIPMENT DATE




4. AS or one

6 AUTHORITY FOR SHIPMENT

7 NUMBER OF RECORDS TRANSMITTED

I2 CD5

8 PERSON 10 CONTACT (Nameanoveleohone)

CW2 Arthur Ford




9 REQUIREMENT CONTROL SYMBOL 335 I5)



I0 SHIPPED
IIS Army nI Washingum
()I11:c 0" the



32. huzlc

hm I IIC

11 SHIPPED TO

MAJ ?I1mmas Hurley

()fI'icc of the
I555 Suite

Du: :1 >0

;\rIInv1on 22 209



below and return copy to sender)

RETURN RECEIPT REQUESTED (When not .--.



ma TYPED NAME: AND OF SENDER
St i'I? Aanhcr McI.umh

11a IYPED NAME AND TITLE OF RECEIVER

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110 SIGNATURE OF RECEIVER AND DATE

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HARD COPY PUNCHED CARDS

CASSETTES

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MICROFILM PHOTO

FICHE



3. NUMBER OF BOXES (Packages)

14. NUMBER OF ITEMS

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MEI HUD OF SHIPMENT

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DA FORM 200. SEP 1998

PREVIOUS EDITIONS ARE OBSOLETE

UNCLASSIFIED

VT '41 --



32313

Appellate Exhibit 368
Enclosure 15
10 pages
classified
"SECRET"
ordered sealed for Reason 2
and Reason 7 (government)
Military Judge's Seal Order
dated 20 August 2013
stored in the classified
supplement to the original
Record of Trial

32314

Appellate Exhibit 368
Enclosurel6
Ipage
classified
"SECRET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

UNITED STATES

V.

MANNING, Bradley E., PFC

U.S. Army.

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

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT



32315

SPEEDY TRIAL CHRONOLOGY

DATED: 26 October 2012

Pursuant to Rule 3.2, Rules of Practice before Army Courts-Martial 2012, the Defense
stipulates to the below chronology of dates and events for the above-captioned court-martial.

Date

Event

27-May-I 0

PFC Manning confined in CHU with armed guard

29-May-l 0

PFC Manning ordered into pretrial con?nement

30-May-I 0

Military Magistrate approved pretrial confinement

31-May-10

PFC Manning transferred to Theater Field Con?nement Facility in
Kuwait

5-Jul-I0

Original Charges preferred

6-Jul-I 0

appointed LTC Craig Merutka as the Article 32
Investigating Officer

ll-Jul-I0

Article 32 Investigating Officer denied defense?s request for an RCM
706 board

ll-Jul-I0

Defense request RCM 706 board and delay of Article 32 investigation



Defense requested delay of Article 32 investigation until RCM 706
board completed and until the PFC Manning could resolve issues
relating to civilian defense counsel and defense expert witnesses

12-Jul-10

granted defense request to delay Article 32 investigation

I3-Jul-10

Defense requested for appointment of expert in computer forensics



granted defense request for expert in computer forensics

28-Jul-10

GCMCA requested transfer of jurisdiction to MDW

28-Jul-I0

GCMCA signed Protective Order Governing Classified Information

29-Jul-10

PFC Manning arrived at Quantico

2-Aug-10

GCMCA released jurisdiction to

2-Aug-10

ordered Article 32 investigation to be completed within 10
days



ordered RCM 706 board



EXHIBIT 3 ea

OF

PAGES



4-Aug-10 Appointment of LTC Paul Almanza as the Article 32 Investigating
Officer

11-Aug-10 Defense requested delay of Article 32 investigation until completion of
RCM 706 board

12-Aug-10 Article 32 Investigating Of?cer recommended that approve
the defense delay request for completion of RCM 706 board

12-Aug-10 approved defense request for delay of Article 32
investigation states ?period from 11 August 2010 until the R.C.M. 706
Sanity Board completion is excludable defense delay.?

25-Aug-10 Defense requested delay of RCM 706 board until forensic
expert appointed to defense team

25-Aug-10 excludes the period between 27 August 2010 and until the
CGMCA takes action of the defense request for appointment of a
forensic expert consultant is excludable delay under R.C.M.
707(c).

26-Aug-10 Defense request for delay in R.C.M. 706 board to comply with
prohibitions on disclosure of classi?ed information.

3-Sep-10 Defense requested security clearance for each defense member, to
include experts

17-Sep-10 appointed defense security expert consultant and security
of?cer for RCM 706 board

17-Sep-10 issued Protective Order Governing Classi?ed Information

17-Sep-10 ordered Preliminary Classi?cation Review of PFC
Manning?s Mental Impressions (PCR)

18-Sep-10 Defense Response to the Preliminary Classi?cation Review of
Accused?s Mental Impressions.

22-Sep-10 Superseding Order for Preliminary Classi?cation Review of Accused?s
Mental Impressions.

28-Sep-10 Defense requested second defense security expert to assist PCR, for
PCR to take place in SCIF, and for the PFC Manning to be given
access to classi?ed information

12-Oct-10 appointed expert consultant in forensic for
defense

12-Oct-10 appointed second defense security expert to assist with PCR

12-Oct-10 excludes the period from 12 July 2010 until 12 October 2010
as excludable delay under R.C.M. 707(c).

22-Oct-10 Discovery Production Bates 00000001 - 00000429 (429 pages),
including Preferral Packet [Unclassi?ed]

28-Oct-10 Defense requested appointment of expert in information assurance to
the defense team

29-Oct-10 Defense submitted a discovery request

10-Nov-10 Discovery Production Bates 00000430 - 00000450 (21 pages),
including Initial Article 32 Packet [Unclassi?ed]

10-Nov-10 excludes the period from 12 October 2010 until 10

November as excludable delay under R.C.M. 707(c).



2

32316



11-Nov-10 Discovery Production Bates 00000451 - 00000474 (24 pages),
including Initial Article 32 Packet [Unclassi?ed]
15-Nov-10 Defense submitted a discovery request
19-Nov-10 Discovery Production Bates 00000475 - 00000662 (188 pages),
including Initial Article 32 Packet [Unclassi?ed]
29-Nov-10 Defense requested appointment of investigator for defense
8-Dec-10 Defense submitted a discovery request
13-Dec-10 Results of Preliminary Classi?cation Review provided to the
Government.
17-Dec-10 denied defense request for appointment of investigator for
defense
17-Dec-10 excludes the period from 10 November 2010 until 17
December 2010 as excludable delay under R.C.M. 707(c).
18-Dec-10 Defense requested the names of those members on the RCM 706 board
30-Dec-10 Defense submitted MRE 505(h) motion for RCM 706 board
3-Jan-11 Discovery Production Bates 00000663 - 00000771 (109 pages),
including Preliminary Inquiry [Unclassi?ed]
5-Jan-11 Defense submitted memorandum requesting change of the PFC
Manning?s classi?cation and assignment
5-Jan-11 Prosecution responded to defense noti?cation under MRE 505(h)
10-Jan-11 Defense submitted a discovery request
13-Jan-11 Defense requested speedy trial and submits an RCM 305(g) request to

14-Jan-11 Discovery Production Bates 00000772 - 00000851 (80 pages),
including 15-6 Investigation [Unclassi?ed]
14-Jan-11 appointed expert in information awareness for defense
14-Jan-11 approved defense request for expert in forensic
14-Jan-1 1 excludes the period from 17 December 2010 until 14
January 2011 as excludable delay under R.C.M. 707(c). The
Convening Authority acknowledged the Defense?s request for Speedy
Trial.
19-Jan-11 Defense Submits discovery request
21-Jan-11 denied defense RCM 305(g) request
3-Feb-I 1 ordered RCM 706 to resume
9-Feb?11 Discovery Production Bates 00000852 - 00001049 (198 pages),
including Medical Records [Unclassi?ed]
9-Feb-l1 Discovery Production Bates 00001050 - 00001051 (2 pages),
including Certi?cate of Service - to Liberty TDS [Unclassi?ed]
15-Feb-11 excludes the period from 14 January 201 1 until 15 February
2011 as excludable delay under R.C.M. 707(c). The Convening
Authority acknowledged the Defense?s request for Speedy Trial.
16-Feb-11 Defense submitted a discovery request
17-Feb-11 Defense submitted motion to compel discovery

18-Feb-1 1

Defense requested for appointment of for defense

25-Feb-11 Prosecution submitted response to defense?s motion to compel
discovery to the Article 32 investigating of?cer

1-Mar-1 1 Additional charges preferred

8-Mar-1 1 Discovery Production Bates 00001052 - 0001 1448 (10397 pages),
including 35F TRN P01 and Quantico Art 138 Response [Unclassi?ed]

14-Mar-1 1 RCM 706 board submitted extension request

18-Mar-11 Original charges dismissed

18-Mar-11 approves of the R.C.M. 706 Board Extension Request and
directs the Board to complete its work by 16 April 201 1.

18-Mar-11 excludes the period from 15 February 2011 until 18 March
2011 as excludable delay under R.C.M. 707(c). The Convening
Authority acknowledged the Defense?s request for Speedy Trial.

5-Apr-11 appointed for defense

5-Apr-11 denied defense request for mitigation expert

7-Apr-1 1 Discovery Production Bates 00011449 - 00011462 (14 pages),
including Art 138 Response [Unclassi?ed]

9?Apr-1 1 Discovery Production Bates 0001 1463 - 00011573 (1 1 pages),
including Art 138 Response [Unclassi?ed]

9?Apr-11 RCM 706 board interviewed PFC Manning

12-Apr-11 Discovery Production Bates 00011574 - 0001271 1 (1138 pages),
including Security Classi?cation Guide, OMPF, Enemy Information
[Unclassi?ed]

12-Apr-11 Prosecution responded to defense discovery request dated 10 January
2011 and 16 February 2011

15-Apr-1 1 RCM 706 board submitted additional extension request

15-Apr-1 1 approved RCM 706 board extension request

l8?Apr-1 1 Discovery Production Bates 00012712 - 00012720 (9 pages),
including Art 138 Response [Unclassi?ed]

20-Apr-11 PFC Manning transferred from Quantico to the Joint Regional
Correctional Facility at Fort Leavenworth, Kansas.

20-Apr-1 1 Defense requested expert for Fort Leavenworth

22-Apr-11 The RCM 706 board submits its report

22-Apr-1 1 excludes the period from 18 March 2011 until 22 April 201 1
as excludable delay under R.C.M. 707(c). The Convening Authority
acknowledged the Defense?s request for Speedy Trial.

25-Apr-1 1 Prosecution requested delay of Article 32 investigation until the earlier
of the completion of the OCA Disclosure Requests and OCA
Classi?cation Reviews or 25 May 201 l.

26-Apr-1 1 Defense opposition to the Govemment?s excludable delay request and a
request for the Convening Authority to direct either substitutions or
summaries be provided to the Defense to avoid any delay in the Article
32.

29-Apr-1 1 approved prosecution?s request for a delay of Article 32



4

32318

investigation
4-May-11 approved defense?s request for expert in
12-May-l 1 Discovery Production Bates 00012721 - 00012924 (204 pages),
including Art 138 Response [Unclassi?ed]
12-May-1 1 excludes the period from 22 April 2011 until 12 May 2011
as excludable delay under R.C.M. 707(c). The Convening Authority
acknowledged the Defense?s request for Speedy Trial.
13-May-1 1 Defense submitted a discovery request
22-May-1 1 Prosecution submitted its second request to delay Article 32
investigation.
24-May-1 1 Defense objected to prosecution?s request to delay Article 32
investigation
26-May-1 1 approved prosecution?s request for a delay of Article 32
investigation
9-Jun-1 1 Discovery Production Bates 00012925 - 00012933 (9 pages),
including Art 138 Response [Unclassi?ed]
17-Jun?l 1 excludes the period from 12 May 2011 until 17 June 2011 as
excludable delay under R.C.M. 707(c). The Convening Authority
acknowledged the Defense?s request for Speedy Trial.
22-Jun-1 1 approved facility and storage of classi?ed information
22-Jun-1 1 issued Protective Order governing law enforcement sensitive
information and other sensitive information
22-Jun-1 1 issued Protective Order governing Secretary of the Army
AR 15-6 investigation
27-Jun-1 1 Prosecution requested third delay of Article 32 investigation
29-Jun-1 1 Defense objected to prosecution's request to delay Article 32
investigation
30-Jun-1 1 Discovery Production Bates 00012934 00021363 (8430 pages), Sec
Army 15-6 [Unclassi?ed]
5-Jul-1 1 approved prosecution?s request to delay Article 32
investigation
13-Jul-11 excludes the period from 17 June 201 1 until 13 July 201 1 as
excludable delay under R.C.M. 707(c). The Convening Authority
acknowledged the Defense?s request for Speedy Trial.
25-Jul-1 1 Prosecution requested fourth delay of Article 32 investigation
25-Jul-1 1 Defense objected to prosecution?s request for delay of Article 32
investigation and requests speedy trial
25-Jul-1 1 Discovery Production Bates 00021364 - 00024382 (3019 pages),
including CID information [Unclassi?ed]
25-Jul-1 1 Discovery Production Bates 00036618 - 00036802 (185 pages),
including CID information [Unclassi?ed]
26-Jul-1 1 approved prosecution?s request for a delay of Article 32
investigation
2-Aug-1 1 Discovery Production Bates 00036803 - 00036803 (1 pages),

including CID information [Unclassi?ed]



5

32319

9-Aug-11 Defense requested forensic computer expert

9-Aug-1 1 Discovery Production Bates 00036804 00042806 (6003 pages),
including Sec Army 15-6 GOMORS [Unclassi?ed]

10-Aug-11 appointed defense expert in forensic

10-Aug-11 appointed defense forensic computer experts and request for
computer hardware

10-Aug-11 excludes the period from 13 July 2011 until 10 August 2011
as excludable delay under R.C.M. 707(c). The Convening Authority
acknowledged the Defense?s request for Speedy Trial dated 13 January
2011 and the Defense?s renewed request for Speedy Trial dated 25 July
2011.

11-Aug-11 Discovery Production Bates 00042807 - 00044864 (2058 pages),
including Pretrial Con?nement Documents [Unclassi?ed]

25-Aug-11 Prosecution requested ?fth delay of Article 32 investigation

27-Aug-11 Defense objected to prosecution?s request to delay Article 32
investigation

29-Aug-11 approved prosecution?s request for delay of Article 32
investigation

1-Sep-11 Discovery Production Bates 00044865 - 00045301 (437 pages),

including Military Intelligence Investigations [Classi?ed and
Unclassi?ed]

15-Sep-11 excludes the period from 10 August 2011 to 15 September
2011 as excludable delay under R.C.M. 707(c). The Convening
Authority acknowledged the Defense?s request for Speedy Trial dated
13 January 2011 and the Defense?s renewed request for Speedy Trial
dated 25 July 2011.

19-Sep-11 Discovery Production Bates 00024383 - 00024459 (77 pages),
including Deleted Information [Unclassi?ed]

21-Sep-1 1 Defense submitted a discovery request

26-Sep-11 Prosecution sixth requested delay of Article 32 investigation

27-Sep-11 Defense objected to prosecution?s request for delay of Article 32
investigation

28-Sep-11 approved prosecution?s request for delay of Article 32
investigation

3?Oct-11 Discovery Production Bates 00024460 - 00036617 (12158 pages),

including CID information [Unclassi?ed]

12-Oct-1 1 Discovery Production Bates 00045302 - 00045581 (280 pages),
including CID information [Unclassi?ed]

13-Oct-11 Defense submitted a discovery request

14-Oct-1 1 excludes the period from 15 September 2011 to 14 October

2011 as excludable delay under R.C.M. 707(c). The Convening
Authority acknowledged the Defense?s request for Speedy Trial dated

13 January 2011 and the Defense?s renewed request for Speedy Trial
dated 25 July 2011.

32320

20-Oct-l 1

Discovery Production Bates 00045582 - 00046073 (492 pages),
including CID information [Unclassi?ed]

25-Oct-11

Prosecution seventh requested delay of Article 32 investigation

25-Oct-1 1

Defense objected to prosecution?s request for a delay of Article 32
investigation

27-Oct-1 1

approved prosecution?s request to delay Article 32
investigation

4-Nov-1 1

Discovery Production Bates 00046074 - 00375129 (329056 pages),
including CID Forensic Reports [Unclassi?ed]

8-Nov-1 1

Discovery Production Bates 00375130 - 00375182 (53 pages),
including Military Intelligence Investigation [Unclassi?ed]

8-Nov-11

Discovery Production Bates 00376954 - 00378175 (1222 pages),
including Charged Documents, C3 Report, Classi?cation Review
[Classi?ed]

8-Nov-1 1

Discovery Production Bates 003 78176 - 00378176 (1 pages),
including Volumes.txt [Unclassi?ed]

8-Nov-1 1

Discovery Production Bates 00378177 - 00378624 (448 pages),
including Military Intelligence Investigation and Classi?ed CID
information [Classi?ed and Unclassi?ed]

15-Nov-11

Defense submitted a discovery request

16-Nov-1 1

Defense objected to prosecution?s request for delay of Article 32
investigation

16-Nov-1 1

Defense submitted a discovery request

16-Nov-1 1

Trial Counsel requests the Convening Authority to exclude the period
between 16 November 2011 and 16 December 2011 as excludable
delay under R.C.M. 707(c) in order for the Government to obtain the
?nal classi?cation review from an OCA and to provide the command
with time to execute OPLAN BRAVO.

16-Nov-1 1

Defense objects to the Government proposed start date and proposing
an earlier date of 12 December 2011. The Defense also objects to any
delay being excluded under R.C.M. 707(c) and instead requested the
time be counted against the Government for Speedy Trial and Article
10 purposes.

16-Nov-1 1

approves the Govemment?s request for delay and excludes
the period from 22 April 2011 until 16 December 2011 as excludable
delay under R.C.M. 707(0).

16-Nov-1 1

issued special instructions to the Article 32 investigating
of?cer

17?Nov-1 1

Discovery Production Bates 003 78626 - 003 78649 (24 pages),
including CID information and classi?cation review(s) [Classi?ed and
Unclassi?ed]

17-Nov-1 1

Discovery Production Bates 00378650 - 00384256 (5607 pages),
including Sec Army 15-6 GOMORS [Unclassi?ed]

23?Nov-1 1

Discovery Production Bates 00378625 - 003 78625 (1 pages),
including DA Form 4137 [Classi?ed]

7

32321

23-Nov-11

Discovery Production Bates 00402272 - 00407990 (5719 pages),
including Sec Army 15-6 GOMORS [Unclassi?ed]

23-Nov-1 1

Discovery Production Bates 00407991 - 00409678 (1688 pages),
including CID information and DSS case ?le [Unclassi?ed]

1-Dec-1 1

Discovery Production Bates 00384257 - 00402271 (18015 pages),
including Sec Army l5-6 GOMORS [Unclassi?ed]

7?Dec-1 1

Discovery Production Bates 00375183 - 00375197 (15 pages),
including Sec Army 15-6 GOMORS [Unclassi?ed]

7-Dec-1 1

Discovery Production Bates 00410600 - 00410670 (71 pages),
including Enemy information, PFC Manning's of?ce work product, and
classi?cation review(s) [Classi?ed]

9-Dec-1 1

Discovery Production Bates 00375198 - 003 76953 (1756 pages),
including CID information, Schmiedl Files, Classi?cation Reviews
[Unclassi?ed]

9-Dec-1 1

Discovery Production Bates 00410671 - 00410689 (19 pages),
including CID information [Unclassi?ed]

16-Dec-1 1

Article 32 investigation began

19-Dec-1 1

Discovery Production Bates 00410690 - 00410697 (8 pages),
including CID information and pretrial con?nement information
[Unclassi?ed]

19-Dec-1 1

Discovery Production Bates 00410698 - 00410701 (4 pages),
including Classi?cation review [Classi?ed and Unclassi?ed]

22-Dec-1 1

Article 32 investigation concluded

3-Jan-12

Prosecution requested Article 32 Investigating Of?cer exclude as
reasonable delay anytime between 22 December 201 1 and 3 January
2012 that he did not work on the Article 32 investigation based on the
federal holidays and weekends

3-Jan-12

excludes the period from 16 November 201 1 until 15
December 2011 as excludable delay under R.C.M. 707(c). The
Convening Authority acknowledged the Defense?s request for Speedy
Trial dated 13 January 201 1 and the Defense?s renewed request for
Speedy Trial dated 25 July 2011

4?Jan- 1 2

Article 32 investigating of?cer sent an email excluding as a reasonable
delay the days between 23 December 201 1 and 3 January 2012 when
he did not work on the Article 32 investigation

1 1-Jan-12

Article 32 investigating of?cer completed his report and
recommendations, including providing the with an
excludable delay memorandum

12-Jan-12

Discovery Production Bates 00410702 - 00410788 (87 pages),
including Article 32 investigating of?cer?s ?nal report and pretrial
con?nement recordings [Unclassi?ed]

20-Jan-12

Defense submitted a discovery request

20-Jan-12

Discovery Production Bates 00410789 - 00410870 (82 pages),
including CID information and PFC Manning's Skype logs
[Unclassi?ed]



32322

27-Jan-12

Discovery Production Bates 00410871 - 0041 1342 (472 pages),
including CID Docs, Art 32 Audio - Unclassi?ed [Unclassi?ed]

27-Jan-12 Discovery Production Bates 0041 1343 - 0041 1366 (24 pages),
including Manning Computer Logs, Closed session - 11 1218
[Unclassi?ed]

27-Jan-12 Prosecution responded to defense discovery request dated 29 October
2010, 15 November 2010, 8 December 2010, 10 January 2011, 16
February 2011,13 May 2011,13 October 2011,15 November 2011,16
November 2011, and 20 January 2012.

31-Jan-12 Defense submitted a discovery request

3-Feb-12 GCMCA refers the case
3-Feb-12 Court received Electronic Docket Noti?cation
6-Feb-12 Defense requested coordination for transportation of PFC Manning to
defense meeting
8-Feb-12 Telephonic RCM 802 session

16-Feb-12 Defense ?les its ?rst Motion to Compel Discovery

23 -Feb-12 Arraignment

13-Mar-12 Discovery Production Bates 00411367 - 00412613 (1247 pages),
including CID information/Attestations/PTC Visitation Logs, Audio
Logs [Unclassi?ed]

15-Mar-12 Article 39(a) session began

16-Mar-12 Article 39(a) session concluded

16-Mar-12 Discovery Production Bates 00412614 - 00417914 (5301 pages),
including FBI information [Unclassi?ed]

22-Mar-12 Email sent by then-CPT Fein stating Government?s position on R.C.M.
701 and classi?ed evidence.

28-Mar-12 RCM 802 telephonic conference

12-Apr-12 Discovery Production Bates 00417915 - 00419646 (1732 pages),
including FBI information, PFC Manning AKO-S email, trial
documents, DISA and IEDDO information [Classi?ed and
Unclassi?ed]

12-Apr-12 Discovery Production Bates 00419647 - 00419804 (158 pages),
including CID information, damage assessment(s), motions hearing
audio [Unclassi?ed]

24-Apr-12 Article 39(a) session began

24-Apr-12 Discovery Production Bates 00419805 - 00445503 (25699 pages),
including Interim CID Forensic Reports [Classi?ed and Unclassi?ed]

26-Apr-12 Article 39(a) session concluded

15-May-12 Discovery Production Bates 00445504 - 00447091 (1588 pages),
including FBI information [Classi?ed]

15-May-12 Discovery Production Bates 00447092 - 00447392 (301 pages),

including Administrative documents, CID information, and damage
assessment(s) [Unclassi?ed]



32323



15-May-12 Discovery Production Bates 00447393 - 00447439 (47 pages),
including Damage assessments [Classi?ed]
18-May-12 Discovery Production Bates 00447440 00447666 (227 pages),
including FBI information [Classi?ed and Unclassi?ed]
18-May-12 DOS Draft Damage Assessment available for inspection with
prosecution [Classi?ed with Special Control Measures]
21-May-12 Discovery Production Bates 00447667 - 00447817 (151 pages),
including Grand jury information [Unclassi?ed]
21-May-12 Discovery Production Bates 00447818 - 00447848 (31 pages),
including Damage assessments and CIA information [Classi?ed]
24-May-12 Discovery Production Bates 00447849 - 00447944 (96 pages),
including Pretrial con?nement recordings and photos, CID information,
and trial documents [Classi?ed]
29-May-12 Discovery Production Bates 00447945 - 00449240 (1296 pages),
including Trial documents [Classi?ed]
30-May-12 RCM 802 telephonic conference
4-Jun?12 Discovery Production Bates 00449241 - 00449242 (2 pages),
including DOE damage assessment [Classi?ed]
6-Jun-12 Article 39(a) session began
6-Jun-12 DIA Information Review Task Force Report available for inspection
with prosecution [Classi?ed with Special Control Measures]
8-Jun-12 Article 39(a) session concluded
13-Jun-12 Discovery Production Bates 00449243 - 00449402 (160 pages),
including DHS damage assessment [Classi?ed]
25-Jun-12 Article 39(a) session
26-Jun-12 Defense submitted 15"? discovery request
2-Jul-12 Discovery Production Bates 00508935 - 00508940 (6 pages), CIA
WikiLeaks Task Force Report available for inspection with prosecution
[Classi?ed with Special Control Measures]
3-Jul-12 Discovery Production Bates 00449403 - 00449464 (62 pages),
including CID information, trial documents, and DISA logs
[Unclassi?ed]
3-Jul-12 Discovery Production Bates 00449465 - 00449552 (88 pages),
including CID report, damage assessment(s), and PFC Manning's
emails [Classi?ed]
3-Jul-12 Prosecution responded to defense?s discovery request date 26 June
2012
12-Jul-12 Discovery Production Bates 00449553 - 00449571 (19 pages),
including Pretrial con?nement recordings and CID forensic report
[Unclassi?ed]
12-Jul-12 Discovery Production Bates 00449572 - 00449581 (10 pages),
including DISA information [Classi?ed]
16-Jul-12 Article 39(a) session began
20-Jul-12 Article 39(a) session concluded

10

32324

27-Jul-12

Discovery Production Bates 00449793 - 00449942 (150 pages),
including Brig Emails [Unclassi?ed]

27-Jul-12 RCM 802 telephonic conference

28-Jul-12 Discovery Production Bates 00449582 - 00449764 (183 pages),
including NGA information [Classi?ed]

2?Aug-12 Discovery Production Bates 00449765 - 00449792 (28 pages),
including USCYBERCOM and FBI damage assessments [Classi?ed]

2?Aug-12 Discovery Production Bates 00449943 - 00479483 (29541 pages).
including Joint information [Classi?ed]

2?Aug-12 Discovery Production Bates 00479484 - 00499594 [Classi?ed]

2?Aug-12 Discovery Production Bates 00499595 - 00504420 (4826 pages),
including DIA information and other damage assessment(s) [Classi?ed]

2?Aug-12 Discovery Production Bates 00504421 - 00504481 (61 pages),
including Pretrial con?nement recordings and trial documents
[Unclassi?ed]

2?Aug-12 Discovery Production Bates 00504482 - 00505060 (579 pages),
including DIA information, DOS and DIA damage assessments marked
[Classi?ed]

3-Aug-12 Discovery Production Bates 00505061 - 00505183 (123 pages),
including Damage assessments and CID information [Classi?ed]

3-Aug-12 Discovery Production Bates 00505184 - 00505204 (21 pages),
including CID information and various OCA documents [Unclassi?ed]

3-Aug-12 Discovery Production Classi?ed digital evidence [Classi?ed with
Special Control Measures]

3-Aug-12 Discovery Production NSA documents [Classi?ed with Special Control
Measures]

6-Aug-12 Discovery Production Bates 00505205 - 00505256 (52 pages),
including damage assessments and enemy information [Classi?ed]

7-Aug-12 Discovery Production Bates 00505257 - 00505257 (1 pages),
including Intelink attestation [Unclassi?ed]

7-Aug-12 Discovery Production Bates 00505258 - 00505808 (551 pages),
including FBI information and variation of charged documents
[Classi?ed]

10-Aug-12 Discovery Production Bates 00505809 - 00506675 (867 pages),
including DIA information [Classi?ed]

14-Aug-12 Discovery Production Bates 00506676 - 00506684 (9 pages),
including Quantico information [Unclassi?ed]

14-Aug-12 Discovery Production Bates 00508691 - 00508934 (244 pages),
including Quantico information [Unclassi?ed]

16-Aug-12 Discovery Production Bates 00506685 - 00508690 (2006 pages),
including USCYBERCOM information [Classi?ed]

16-Aug-12 Discovery Production Bates 00509516 - 00511906 (2391 pages),

including USCYBERCOM information available for inspection with
prosecution [Classi?ed with Special Control Measures]



11

32325

21-Aug-12

Discovery Production Bates 00508941 - 00509515 (575 pages),
including information [Classi?ed]

23-Aug-12

Discovery Production NCIX information available for inspection at
ODNI HQ [Classi?ed with Special Control Measures]

27-Aug-12

Article 39(a) session began

27-Aug-12

Discovery Production Bates 0051 1907 - 00514453 (2547 pages),
including Quantico emails [Unclassi?ed]

30-Aug-12

Article 39(a) session concluded

14-Sep-12

Discovery Production Bates 00514501 - 00514898 (398 pages), DIA
and ODNI information available for inspection with prosecution
[Classi?ed with Special Control Measures]

14-Sep-12

Discovery Production Bates 00519353 - 00523672 (1286 pages),
including DOS information [Classi?ed]

14-Sep-12

Discovery Production information [Classi?ed with Special
Control Measures]

15-Sep-12

Discovery Production Bates 00514454 - 00514497 (44 pages),
including DHS information [Unclassi?ed]

15-Sep-12

Discovery Production Bates 00514498 - 00514498 (1 pages),
including DHS infonnation [Classi?ed]

19-Sep-12

Discovery Production Bates 00514499 - 00514500 (2 pages),
including DOE information [Unclassi?ed]

19-Sep-12

Discovery Production Bates 00514899 - 00515842 (944 pages),
including DIA and CIA information [Classi?ed]

19-Sep-12

Discovery Production Bates 00515843 - 00519167 (3325 pages),
including Quantico emails [Unclassi?ed]

20-Sep-12

Discovery Production Bates 00519168 - 00519352 (185 pages),
including FBI information [Classi?ed]

20-Sep-12

Discovery Production Bates 00519353 - 00523672 (1286 pages),
including DOS information [Classi?ed], which was previously made
available for inspection on 14 Sep 12

28-Sep-12

Discovery Production Bates 00509516 - 0051 1906 (2391 pages),
including USCYBERCOM previously made available for inspection on
16 Aug 12

28-Sep-12

Discovery Production Bates 00514501 - 00514898 (398 pages),
including DIA and ODNI infonnation previously made available for
inspection on 14 Sep 12



DAVID EDWARD COOMBS
Civilian Defense Counsel

12

32326

32327

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
v. DEFENSE ORIGINAL
CLASSIFICATION AUTHORITY
MANNING, Bradley E., PFC INTERROGATORIES

U.S. Army,

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

DATED: 26 October 2012



Pursuant to Rule for Courts-Martial (R.C.M.) 702(g)(2), the Defense submits the
following questions to be asked of each of the relevant Original Classi?cation Authorities
(OCAS). The Defense requests that the responses by the relevant OCAs be provided to the Court
and Defense no later than 16 November 2012.

Classi?cation Review of Charged Documents
Prior Classi?cation Reviews
What does a classi?cation review entail?
How many classi?cation reviews did your agency do in:

2010?

20] 1?

2012? (not including the classi?cation review in this case)
How many documents were reviewed in each case?
How many people worked on each review?
When was each review begun? Completed?

How many man hours were spent on each review?

Communication Between OCA and Trial Counsel
Did you p_ersonally speak to any of the trial counsel in this case?
If yes. how many times?
If yes. when?
APPELLATE EXHIBIT 3]

PAGE
PAGE OF



32328

Did you personally have any written communications with the trial counsel in this case?
If yes, how many times?
If yes, when? Please provide documentation.

Initial Communications

When did trial counsel in this case ?rst approach you or your organization about a classi?cation
review in the case of United States v. Manning?

How did trial counsel ?rst approach you? email, phone, meeting)
What did the trial counsel ask you to do or tell you at this first encounter?

When did trial counsel ?rst ask you to complete a classi?cation review?

First Request for Classi?cation Review
How did trial counsel ?rst ask you to complete a classi?cation review? If a written request,
please provide documentation.

What did trial counsel ask you to do?

Concerning this ?rst request, did trial counsel give you a suspense date for completing the
classi?cation review process?

If yes, what was that date?
If no,
Did you request a suspense date?

Did you provide an approximate time line on how long you thought the process would
take?

Did trial counsel ask for an approximate time line on how long you thought the process
would take?

Was there any discussion of timing? If yes, what did it entail?
Did the trial counsel mention the issue of speedy trial? If so, how?
What was the date on which you began the process of completing a classi?cation review?

What were you told by trial counsel about the role of the classi?cation review in the legal
proceedings?

Did trial counsel ever tell you to take your time with the classi?cation review because they were
not ready to proceed with the Article 32?

32329

Legal Counsel for OCA

Was legal counsel for your Agency involved in any aspect of the classi?cation review process?
Ifso,
Explain how.

Did legal counsel ever mention the issue of timing or speedy trial?
Logistics of Classi?cation Review For Charged Documents

How many charged documents were you asked to review as part of the classi?cation review
process for United States v. Manning? (Include only those documents that you reviewed and
referenced in your ?nal report; do not include any documents that you may have reviewed for
other purposes).

Who speci?cally worked on the classi?cation review? Please provide a list of names and their
respective positions, and the time period that they were asked to work on the classi?cation
review.

How did you choose who would work on the classi?cation review?

Did any of the people who you selected to work on the classi?cation review need to get
clearances to work on the review?

If so, how long did this take?

If you delegated any part of the classi?cation review to others, what did you tell your delegates
about the timing of the classi?cation review and when it needed to be completed?

Do you have any email or written documentation regarding the instructions you gave to your
delegates about the timing of the classi?cation reviews? If yes, please provide.

Did your delegates provide you with daily updates on their progress? If so, how did they provide
these daily reports? If written, please provide documentation.

Did your delegates provide you with weekly updates on their progress? If so, how did they
provide these weekly reports? If written, please provide documentation.

Did your delegates provide you with updates on their progress? If so, how did they
provide these reports? If written, please provide documentation.

If you delegated a portion of the review to others, list all the ways that you kept yourself
informed on what was being done for the classi?cation review process.

What portion of each of the delegates? job was devoted to this classi?cation review? 30%,
Please list for each person involved.

Did you (or your delegates) work on the classi?cation review every day until the time the
classi?cation review was submitted to the trial counsel?

32330

Did you (or your delegates) work on weekends? If so, which weekends?
Did you (or your delegates) work on holidays? If so, which holidays?

On average, how many hours per week in total did you (or your delegates) work on the
classi?cation review?

Do you have timesheets for who worked on the classi?cation reviews and for how long?

How many total hours did you and/or your delegates take to complete the classi?cation review?
Speci?cally:

You:
Your delegates (specify by person):

Once you had completed your review, how long did it take you or your delegates to prepare the
report for submission to trial counsel?

Trial Counsel Inquiries On Status of Classi?cation Review for Charged Documents

Did trial counsel ask for updates on where you were in the process of completing the
classi?cation review? (Note: this question does not ask whether trial counsel made further
requests, but rather whether they made status inquiries) If so, how and when did they ask? If in
written form email, letter, memo), please provide documentation.

Did trial counsel ever ask you how much longer the process would take? If so, how and when
did they ask? If in written form email, letter, memo), please provide documentation.

Did trial counsel ever ask you what speci?cally was taking so long? If so, how and when did
they ask? If in written form email, letter, memo), please provide documentation.

Did trial counsel ask how many people were working on the classi?cation review? If so, how
and when did they ask? If in written form g. email, letter, memo), please provide
documentation.

Did trial counsel ask how much time you were devoting to the classi?cation review process? If
so, how and when did they ask? If in written form email, letter, memo), please provide
documentation.

18 March 2011 Memo

On 18 March 201 1, the Government sent you a memorandum asking you to ??nalize? your
classi?cation review. As of 18 March 201 1, how long had you been working on your
classi?cation review?

If 18 March 201 1 was the date you started your classi?cation review, did you question the trial
counsel why they were asking you to ??nalize? your review? If so, how? If in writing, please
provide documentation.

32331

In the 18 March 201 1 memorandum, the trial counsel provides you with a suspense date of 31
March 201 1. Did you ever communicate with the trial counsel speci?cally about the suspense
date?

If you did communicate with the trial counsel speci?cally about the suspense date, what did you
say? What did the trial counsel say?

If you did communicate with the trial counsel speci?cally about the suspense date, how did this
communication take place? If in writing, please provide documentation.

If you delegated some or part of the classi?cation review, what did you tell your delegates about
the 31 March 2011 suspense date?

Based on dates the trial counsel has provided, you did not meet the suspense date. Is this true?
Did you communicate a reason for not meeting the suspense date to trial counsel?

Did trial counsel ever contact you to ask why you did not meet the suspense date?

In trial counsel?s 18 March 201 1 memorandum to you, trial counsel writes the following:

?Under Article 10, UCMJ, when an accused is in pretrial con?nement,
the United States is required to use ?reasonable diligence? to continue
forward motion on resolving criminal cases. See 10 U.S.C. ?810. The
only remedy for an Article 10 violation is dismissal of the charges with
prejudice. Additionally, the United States must ensure it does not
violate the accused?s Sixth Amendment right to a speedy trial. See
Barker v. Wingo, 407 U.S. 414 (1972). All existing and future delays
by your department could severely hinder the prosecution.?

Did you read this at the time you received it?

What did you understand this to mean?

Did you communicate this speci?c portion of the memorandum to your delegates?
If so, what did you tell them?

Did you ever communicate with trial counsel speci?cally about this portion of the
memorandum?

If so, what did the communication involve?

If so, how did the communication take place? If the communication was written, please provide
documentation.

Subsequent Memorandums From Government

Other than the 18 March 201 memorandum, did the trial counsel provide you with further
memoranda asking you to complete the classi?cation review?

32332

If yes, please list the dates you received the follow-up memoranda.
What was your view of why the trial counsel was sending you these further memoranda?

Was there a suspense date on the further memoranda? Please specify yes/no for each
memorandum you received??

What was the suspense date for each memorandum?

Did you communicate the suspense dates to your delegates? If so, how? If in writing, please
provide written documentation.

Did you meet the suspense dates? Explain for each subsequent memorandum.

If you did not meet the suspense date, did you communicate with the trial counsel about your
failure to meet the suspense dates? What did the communication entail? Please provide
documentary evidence if this communication was in writing.

Did these memoranda include reference to ?Speedy Trial??

If yes, did you communicate with the trial counsel speci?cally about the reference to speedy trial
in the memoranda?

Convening Authority

Were you aware that the trial counsel was requesting delays in the proceedings based on the
classi?cation review process being incomplete?

Did you ever prepare a memo or any document for the trial counsel to provide to the Convening
Authority explaining the progress made on the classi?cation review? If so, please provide this
document or memo.

Did you ever receive any communication from the Convening Authority about the classi?cation
review?

Completion of Classi?cation Review

What was the date that you completed your classi?cation review?

How many pages was your review??
What was the date you began producing the written report?
What was the date you completed the written report?

What was the date that you provided your completed classi?cation report to trial counsel?

After completing the report, did trial counsel require your conset to disclose the classi?cation
review to the Defense?

If so, when did trial counsel request this consent? When was the consent provided?

32333

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
USE OF FORM - Use this form and MCM, 1984,
Appendix 14, will be used by the trial counsel and
the reporter as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a verbatim record is prepared. Air
Force uses this form and departmental
instructions as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a summarized record is authorized.
Army and Navy use DD Form 491 for records of
trial in general and special court-martial cases in
which a summarized record is authorized.
Inapplicable words of the printed text will be
deleted.

8. Matters submitted by the accused pursuant to
Article 60 (MCM, 1984, RCM 1105).

COPIES - See MCM, 1984, RCM 1103(g). The
convening authority may direct the preparation of
additional copies.

12. Advice of staff judge advocate or legal officer,
when prepared pursuant to Article 34 or otherwise.

ARRANGEMENT - When forwarded to the
appropriate Judge Advocate General or for judge
advocate review pursuant to Article 64(a), the
record will be arranged and bound with allied
papers in the sequence indicated below. Trial
counsel is responsible for arranging the record as
indicated, except that items 6, 7, and 15e will be
inserted by the convening or reviewing authority,
as appropriate, and items 10 and 14 will be
inserted by either trial counsel or the convening or
reviewing authority, whichever has custody of
them.

13. Requests by counsel and action of the
convening authority taken thereon (e.g., requests
concerning delay, witnesses and depositions).

1. Front cover and inside front cover (chronology
sheet) of DD Form 490.
2. Judge advocate's review pursuant to Article
64(a), if any.
3. Request of accused for appellate defense
counsel, or waiver/withdrawal of appellate rights,
if applicable.
4. Briefs of counsel submitted after trial, if any
(Article 38(c)).
5. DD Form 494, "Court-Martial Data Sheet."

9. DD Form 458, "Charge Sheet" (unless included
at the point of arraignment in the record).
10. Congressional inquiries and replies, if any.
11. DD Form 457, "Investigating Officer's Report,"
pursuant to Article 32, if such investigation was
conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

14. Records of former trials.
15. Record of trial in the following order:
a. Errata sheet, if any.
b. Index sheet with reverse side containing
receipt of accused or defense counsel for copy of
record or certificate in lieu of receipt.
c. Record of proceedings in court, including
Article 39(a) sessions, if any.
d. Authentication sheet, followed by certificate
of correction, if any.
e. Action of convening authority and, if appropriate, action of officer exercising general courtmartial jurisdiction.
f. Exhibits admitted in evidence.

6. Court-martial orders promulgating the result of
trial as to each accused, in 10 copies when the
record is verbatim and in 4 copies when it is
summarized.

g. Exhibits not received in evidence. The page
of the record of trial where each exhibit was
offered and rejected will be noted on the front of
each exhibit.

7. When required, signed recommendation of
staff judge advocate or legal officer, in duplicate,
together with all clemency papers, including
clemency recommendations by court members.

h. Appellate exhibits, such as proposed instructions, written offers of proof or preliminary
evidence (real or documentary), and briefs of
counsel submitted at trial.

DD FORM 490, MAY 2000

Inside of Back Cover

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