Title: Volume FOIA 101

Release Date: 2014-03-20

Text: 32666

Volume 101 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 ?surrimarizeo? 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



32667
FOR OFFICIAL USE ONLY

DEPAFITIIENT OF THE ARMY
u.s. ARMY MILITARY DISTRICT OF WASHINGTON
are A smear
FORT LESLEY J. ncmua. Dc 20319-5013

7 September 2011

MEMORANDUM THRU

Office of the Judge Advocate General 2200 Army Pentagon,

Washington, DC 20310
Deputy Chief of Staff for Intelligence (DAMLZB), 2200 Army Pentagon, Washington, DC
20310

FOR Commander, US. Southern Command, 3511 Northwest 91st Avenue, Miami, Fl. 33172

SUBJECT Updated Request for Classification Review - _l_J__r_1_ited States v. PFC Bradley Manning

1. PURPOSE. The prosecution in the above-referenced case requests the appropriate authority
their classi?cation reviews of the documents listed on the prosecution's original written
request, dated 18 March 2011. This request is in addition to the previous request dated 28 July
2011.

2. BACKGROUND. PFC Manning is charged with downloading various ciassified documents,
photographs, and videos from Secret Internet Protocol Router "Network (SIPRNET) websites and
transferring them to his personal computer. PFC Manning is also charged with transmitting this
information to persons or organizations not entitled to receive it, in violation of United States
law. This request is the second written request that memorializes previous discussions
concerning the use of documents and evidence at trial originating in your agency and the
classi?cation of those documents and evidence.

3. SPEEDY TRIAL Under Article 10, UCMJ, when an accused is in pretrial confinement, 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 ?g rker 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.

4. SUSPENSE. The prosecution requests your reviews be completed by 21 September 2011.
The purpose of this suspense is to ensure the prosecution team has the adequate documentation

for the pre?tria1 investigation, pursuant to Article 32, UCMJ and to minimize any future delays.

USE ONLY

32668

FOR OFFICIAL USE ONLY

ANJA-CL
SUBJECT: Updated Request for Classi?cation Review - United States v. PFC Bradley Manning

5. The point of contact for this memorandum is the undersigned




Encl ASHDEN FEIN
as CPT, JA

Trial Coumel
CF:
Mr. DA)
D01)

2

FOR USE ONLY



32669
OR USE ON LY

DEPARTMENT OF THE ARMY
u.s. ARIIY MILITARY or WASHINGTON
210 A smear
r-?oar LESLEY J. ucmuun, nc 20319-5013

7 September 2011

MEMORANDUM THRU

-Office of the Judge Advocate General 2200 Army Pentagon,

Washington, DC 20310
Deputy Chief of Staff for Intelligence 2200 Army Pentagon, Washington, DC
20310

FOR Commander, U.S. Army Intelligence and Security Command, 8825 Beulah Street, Fort
Belvoir, VA 22060

SUBJECT 2 Updated Request for Classi?cation Review United States v. PFC Bradley Manning

1. PURPOSE. The prosecution in the above?referenced case requests the appropriate authority
complete their classi?cation reviews of the documents listed on the prosecution's original written
request, dated 18 March 2011. This request is in addition to the previous request dated 28 July
2011.

2. BACKGROUND. PFC Manning is charged with downloading various classi?ed documents,
photographs, and videos from Secret Internet Protocol Router Network (SIPRNET) websites and .
transferring them to his personal computer. PFC Manning is also charged with transmitting this
information to persons or organizations not entitled to receive it, in violation of United States
law. This request is the second written request that memorializes previous discussions
concerning the use of documents and evidence at trial originating in your agency and the
classification of those documents and evidence.

3. 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 an Article 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. Wintgo, 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.

4. SUSPENSE. The rosecution re uests v? ted 11.

The purpose of this suspense is to ensure the prosecution team has the adequate documentation
for the pre-trial investigation, pursuant to Article 32, UCMJ and to minimize any future delays.

FOR OFFICIAL USE ON LY



32670
FOR USE ONLY

ANJA-CL
SUBJECT: Updated Request for Classification Review - United States v. PFC Bradley Manning

5. The point of contact for this memorandum is the undersigned at





Encl ASHDEN FEIN
as CPT, JA
Trial Counsel

CF:

Mr.? (OT JAG, DA)

1 D05)

2

FOR (IIAL USE ONLY



32671
FOR OFFICIAL USE ONLY

DEPARTMENT OF THE ARMY
u.s. ARIIY or wasnmorou
210 A smear
FORT LESLEY .1. ucrmn. oc 20319-5013

ANJA-CL 7 September 20

MEMORANDUM Tritium. Intemsenw. of?cc or

the Director of National Intelligence

FOR Original Classification Authority (OCA), Office of the Diredor of National lntelligence

SUBJECT: Updated Request for Classification Review - unites; $34? lg v. EEC Bu glley Mgmning

1. PURPOSE. The prosecution in the above-referenced case requests the appropriate authority complete
their classi?cation reviews of the documents listed on the prosecution's original written request, dated 18
March 201 l. This request is in addition to the previous request dated 28 July 2011.

2. BACKGROUND. PFC Manning is charged with downloading various classified documents,
photographs, and videos from Secret lntemet Protocol Router Network (SIPRNET) websites and
transferring them to his personal computer. PFC Manning is also charged with transmitting this
information to persons or organizations not entitled to receive it, in violation of United States law. This
request is the second written request that memorializes previous discussions concerning the use of
documents and evidence at trial originating in your agency and the classification of those documents and
evidence.

3. SPEEDY TRIAL Under Article 10, UCMJ, when an accused is in pretrial confinement, the United
States is required to use "reasonable diligence" to continue forward motion on resolving criminal cases.
See 10 U.S.C. 95810. 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 407 U.S. 414 (1972). All existing and future delays by your
department could severely hinder the prosecution. Enclosed is an information paper to further explain an
accused's speedy trial rights in the military justice system.

4. SUSPENSE. The rosecution our eviews ?o - - l> The
purpose of this suspense is to ensure the prosecution team has the adequate documentation for the pre-trial
investigation, pursuant to Article 32, UCMJ and to minimize any future delays.



5. The point of contact for this memorandum is the undersigned at?.


I


HDEN ham

Enel
as CPT, A
Trial Counsel

CF:

Mr. DA)

90?)

FOR CIAL USE ONLY

32672

UNITED STATESOF AMERICA
Prosecution Notice to Court of
Completion of
NCIX Damage Assessment
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

6 November 2012
NOTICE

On 23 August 2012. the Court granted the United States' motion voluntarily to provide
limited disclosure under Military Rule ofEvidence (MRE) 505(g)(2) of the damage assessment
prepared by the Office of the National Counterintelligence Executive (NCIX). Appellate Exhibit
CCLV. Additionally, the Court ordered the United States to keep the Court and defense apprised
of any substantive change to the damage assessment. Id.
On 6 November 2012, the Office of the Director of National Intelligence (ODNI) notified
the United States that the damage assessment prepared by NCIX had been Finalized and
completed. Enclosure. ODNI stated that the removal of some information constituted the only
substantive change; however, all removed information had been previously redacted from the
version viewed by the defense. See id. Therefore, the version reviewed by the defense was
substantively the same as that reviewed and approved by the Court. Id.

ALEXANDER voN ELTEN
CPT, JA
Assistant Trial Counsel
Enclosure
Letter by ODNI. dated 6 November 2012

I certify that I served or caused to be served a true copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 6 November 2012.

ALEXANDER vON ELTEN
CPT, JA
Assistant Trial Counsel

APPELLATE EXHIBIT
PAGE REFERENCED:
PAGE
OF
PACnS

32673

UNCLASSIFIED
OFFICE OF T H E DIRECTOR OF N A T I O N A L INTELLIGENCE
OFFICE OF GENERAL COUNSEL
WASHINGTON, DC 20511

Major Ashden Fein
Trial Counsel
U.S. Military District of Washington
Ft. Leslie J. McNair
Washington, DC 20319

November 6, 2012

Re: U.S. v. Bradley Manning, Pfc.
Dear Major Fein:
As you are aware, on August 22, 2012, the Court in the above matter reviewed a draft
of the National Counterintelligence Executive's report entitled "The WikiLeaks Compromise: A
Damage Assessment." On August 23, 2012, the Court granted the government's motion to
disclose the report to the defense with redactions and required the Govemment "to keep apprised
of any changes to the damage assessment and notify both the Court and the Defense of any
substantive changes to it."
The report wasfinalizedsubsequent to the Court's review and the final report was
reviewed by the defense on October 25, 2012. I now write to inform you, in accordance with
the Court's Order, that the only substantive change between the draft reviewed by the Court and
the final report reviewed by the defense was that some of the information that was redacted in
the draft version was ultimately not included at all in the final report. Therefore, the version
reviewed by the defense had fewer redactions than that reviewed by tbe Court. The information
that the defense was permitted to review was substantively the same as that reviewed by the
Court.
Please let me know if you have any questions.

Tricia S. Wellman
Deputy General Counsel

32674

UNITED STATES OF AMERICA
Prosecution Notification
to the Court of
Department of Homeland Security Files

V.

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

26 October 2012

As of 26 October 2012, the United States has made available for inspection by the defense
the Department of Homeland Security document for which the Court approved limited disclosure
under Military Rule of Evidence 505(g)(2) in its ruling dated 28 September 2012.

#

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 26 October 2012.

^

J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel

APPELLATE EXHIBIT 57g
PAGEREFERENCED:
PAGE
OF
PAGES

32675

UNITED STATESOF AMERICA

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

Prosecution Request
for Leave untilSNovember 2012
to Notify Court ofResponse to Defense
Original Classification Autbority
Interrogatories
7November2012

The United States respectfully requests leave ofthe Court unttI8November2012to
inform the Court whether the original classification authority entities will respond to tbe Defense
Original Classification Authority Interrogatories dated 26 October 2012.
This request will not necessitateadelay in tbe proceedings because the continued effort
to obtain this information will occur conctirrently with tbe schedtiled pretrial motions process.
There will be no prejudice to tbe defense. Additionally, the defense does not object.

ALEXANDER VONELTEN
CPT,JA
AssistantTrial Counsel
Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David Coombs,
Civilian DefenseCounsel,via electronic mail on7November 2012

ALEXANDER VON ELTEN
CPT, JA
Assistant Trial Counsel

APPELLATE EXHIBIT 171
PAGE REFERENCED:
PAGE OF
PAGES

CHARGE SHEET

JLUI

I. PERSONAL DATA

1. NAME or ACCUSED (Last. First. rm; 2. ssu 3. GRADE on RANK 4. PAY GRADE

MANNING, Bradley E. - PFC E-3
5 UNIT on ORGANIZATION 6. CURRENT SERVICE:

Headquarters and Headquarters Company, 2d Brigade Combat Team, I0th Mountain 9- DATE

(Light Infantry), Contingency Operating Station Hammer, Iraqyears
7. PAY were MONTH a NATURE or or ACCUSED 9. IMPOSED

a. BASIC b. ourv TOTAL
$1813.20 $l00.00 $1913.20 Pre-Trial Con?nement 29 MAY 10

II. CHARGES AND SPECIFICATIONS
1o. CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 92

SPECIFICATION I: In that Private First Class Bradley E. Manning, U.S. Army, did, between on
I9 November 2009 and on or about 27 May 2010, at or near Contin enc
violate a lawful general regulation, to wit:
te video of a military operation filmed at or near Baghdad, Iraq, on or
2007, onto his personal computer, a non-secure information system.

by wrongfully intr

SPECIFICATION 2: In that Private First Class Bradley E. Manning, U.S. Army, did, between 0
I9 November 2009 and on or about 27 May 2010, at

wit: Par

violate a lawful general

regulation, to
by wrongfully intro




I

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S. Army, did, between on
I9 November 2009 and on or about 27 May 20I0, at or near Contin enc
violate a lawful general regulation, to wit: Par



by wrongfully introdu
re tnfonnation system.

0.59

ft Office PowerPoi

enc

near Contin; -- P. ton Hammer,
. Regulation 25-2, dated 24 October 2007,
. I classified United States Department of State cables onto his

omputer, a non-secure information system.

rm),

(SEE CONTINUATION SIIEET)

ton Hammer, Iraq,






ton Hammer, Iraq,
Regulation 25-2, dated 24 October 2007,
nt presentation onto his personal computer,





Iq,









PREFERRAI.
?Ha. NAME OF ACCUSER (Last, First. MI) I). GRADE c. ORGANIZATION OF ACCUSER
FREEBURG, Matthew w. o-3 HHC, 2d BCT, tom MTN Div (LI)

e. DATE
2 0/0 0 7 6



AFFIDAVIT: Before me, the undersigned. authorized by law to administer oaths in cases of this character, personally appeared the
above named accuser this day of July, 20! 0. and signed the foregoing charges and speci?cations under oath that he is a person
subject to the Uniform Code of Military Justice and that he either has personal knowledge of or has investigated the matters set forth

therein and that the same are true to the best of his knowledge and belief.

CHRISTOPHER D. GOREN

2d BCT, I0th MTN Div (LI)

Typed Name of Officer Organization of Officer
7 Trial Counsel
Official Capacity to Administer Oath
(See C. M. 307(b) must be a commissioned officer)
ML,
/Signatilre

DD FORM 458, MAY 2000

PREVIOUS EDITION IS OBSOLETE.

12 040/!

On 5 30 . 2010. the accused was informed of the charges against him and of the name(s) of the accuserts) known to
me (See R. C. M. 308 (See R. C.M. 308 if notification cannot be made.)
MATTHEW W. FREEBURG HHC, 2d BCT, 10th MTN Div (LI)
Typed Name of Immediate Commander Organization of immediate Commander
O-3

Signatugej
RECEIPT BY SUMMARY COURT-MARTIAL CONVENING AUTHORITY
13.
3
he sworn charges were received at hours. .5 20 [0 HQ, 2d BSTB, 2d BCT,

Designation of Command or

COS Hammer, Iraq, APO AE 09308

Officer Exercising Summary Court Martial Jurisdiction (See R. C. M. 403)



FOR THE
PAUL R. WALTER Commanding
Typed Name of Officer Official Capacity of Officer Signing
9Signature-
V. SERVICE OF CHARGES
14a. DESIGNATION OF COMMAND OF CONVENING AUTHORITY b. PLACE c. DATE
Referred for trial to the cour1?martial convened by
. 2? . subject to the following instructions:2
By of
Command or Order
Typed Name of Officer Official Capacity of Olticer Signing
Grade
Signature
15.
On . 20 . I (caused to be) served a copy hereof on above named accused.
Typed Name of Trial Counsel Grade or Rank of Trial Counsel
Signature

1 when an appropriate commander signs personally, inapplicable words are stricken.

2 See R. C. M. 601(9) concerning instructions. if none. so state.

DD FORM 458 (BACK), MAY 2000 PREVIOUS EDITION IS OBSOLETE.





CONTINUATION SHEET, l)A FORM 458, MANNING, Bradley 32678
Headquarters and Headquarters Company, 2d Brigade Combat Team, lOth Mountain Division
(Light Infantry), Contingency Operating Station Hammer, Iraq, APO AE 09308

Item I0 (Cont'd):

SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S. Army, did
on or about 19 November 2009 and on or about 3 April 2010 a ingency Operating
Station Hammer, Iraq, violate a lawful ion, to wit: Paragraph Anny

2007, by wrongfully adding unauthorized software to a Secret
rotocol Router network computer.







CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 134

SPECFICATION 1: In that Private First Class Bradley E. Manning, U.S. Army, did, at or
Contingency Operating Station Hammer, Iraq, between on or about 19 Nove and on or
about 5 April 2010, have unauthorized possession of photogra to the national

defense, to wit: a classified video of a military 0 I med at or near Baghdad, Iraq, on or
about I2 July 2007, and did willfull Icate, deliver and transmit the video, or cause the
video to be communica ered, and transmitted, to a person not entitled to receive it, in
violation 0 . . Code Section 793(e), such conduct being prejudicial to good order and

me in the armed forces and being of a nature to bring discredit upon the armed forces.








SPECIFICATION 2: In that Private First Class Bradley E. Manning, U.S. Anny, did, at or I



network computer and obtain information that has been determine United States
Government pursuant to an Executive Order or statute to protection against unauthorized
disclosure for reasons of national defense, to wit: sified video of a military operation
filmed at or near Baghdad, Iraq, on or ab July 2007, and did willfully communicate,
deliver and transmit the video, or the video to be communicated, delivered and transmitted,
to a person not entitled eIve it, with reason to believe that such information could be used
to the injury of nited States or the advantage of any foreign nation, in violation of 18 U.S.
Code l030(a)(l), such conduct being prejudicial to good order and discipline in the
ed forces and being of a nature to bring discredit upon the armed forces.

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S. Army, did, at or
Contingency Operating Station Hammer, Iraq, between on or about 13 January 201 on or
about 19 February 2010, knowingly exceed his authorized access on a Seer cmet Protocol
Router network computer and obtain infonnation that has been det ed by the United States
Government pursuant to an Executive Order or statute to protection against unauthorized
disclosure for reasons of foreign relations, to wit: ssified United States Department of State
cable titled ?Reykjavik and did will ommunicate, deliver and transmit the cable, or
cause the cable to be communica elivered, and transmitted, to a person not entitled to
receive it, with reason to ve that such information could be used to the injury of the United
States or the adv ge of any foreign nation, in violation of 18 U.S. Code Section l030(a)(l

ing prejudicial to good order and discipline in the armed forces and being of a
to bring discredit upon the armed forces.












(SEE CONTINUATION SIIEET 2)

32679
CONTINUATION SHEET 2, DA FORM 458, MANNING, Bradley
Headquarters and Headquarters Company, 2d Brigade Combat Team, 10th Mountain Division
(Light Infantry). Contingency Operating Station Hammer, Iraq, APO AE 09308

Item 10 (Cont?d):

SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S. Army, did, at or
Contingency Operating Station Hammer, Iraq, between on or about 19 November 2
about 24 May 2010, knowingly exceed his authorized access on a Secret In rotocol Router
network computer and obtain infonnation that has been detennine United States
Government pursuant to an Executive Order or statute to protection against unauthorized
disclosure for reasons of foreign relations, to wit: than 50 classi?ed United States
Department of State cables, and did will ommunicate, deliver and transmit the cables, or
cause the cables to be communi delivered, and transmitted, to a person not entitled to
receive them, with reas lieve that such information could be used to the injury of the
United States 0 advantage of any foreign nation, in violation of 18 U.S. Code Section

such conduct being prejudicial to good order and discipline in the armed forces and

of a nature to bring discredit upon the armed forces.












II

SPECIFICATION 5: In that Private First Class Bradley E. Manning, U.S. Army, did, at 0
Contingency Operating Station Hammer, Iraq, between on or about 19 Nove and on or

about 5 April 2010, intentionally exceed his authorized access 0 et lntemet Protocol

Router network computer and obtain infonnation nited States Department of Defense,

to wit: a classified video of a mili Ion ?lmed at or near Baghdad, Iraq, on or about 12

July 2007, in violation 0 . . ode Section 1030(a)(2), such conduct being prejudicial to



Contingency Operating Station Hammer, Iraq, between on or about 13 la and on or
about 19 February 2010, intentionally exceed his authoriz on a Secret Internet Protocol
Router network computer and obtain infor the United States Department of State, to
wit: a classified cable titled 13,? in violation of 18 U.S. Code Section 1030(a)(2),
such condu rej udicial to good order and discipline in the anned forces and being of a
to bring discredit upon the armed forces.

SPECIFICATION 7: In that Private First Class Bradley E. Manning, U.S. Army, did, at or
Contingency Operating Station Hammer, Iraq, on divers occasions, betwec out 19




and being of a nature to bring discredit upon the armed forces.

(SEE CONTINUATION SHEET 3)

CONTINUATION SHEET 3, DA FORM 458, MANNING, Bradley 32680
Headquarters and Headquarters Company, 2d Brigade Combat Team, l0th Mountain Division
(Light Infantry), Contingency Operating Station Hammer, Iraq, APO AE 09308

Item 10 (Cont?d):

SPECIFICATION 8: In that Private First Class Bradley E. Manning, U.S. Anny, did, at or
Contingency Operating Station Hammer, Iraq, on divers occasions, betwee out I9
November 2009 and on or about 27 May 2010, intentional! is authorized access on a
Secret Internet Protocol Router network co obtain information from the United States
Department of Defense, to Microsoft Office PowerPoint presentation, in
violation of . . Section l030(a)(2), such conduct being prejudicial to good order and
pane in the anned forces and being of a nature to bring discredit upon the anncd forces.





(END OF CHARGES)

CHARGE SHEET

ULUU I

I. PERSONAL DATA

1. NAME OF ACCUSED (Last. First. MI) 2. SSN 3. GRADE OR RANK 4. PAY GRADE
MANNING, Bradley E. PFC 12-3

5. UNIT OR ORGANIZATION 6. CURRENT SERVICE
Headquarters and Headquarters Company, 2d Brigade Combat Team, 10th Mountain 3- DATE TERM
Division (Light Infantry), Contingency Operating Station Hammer, Iraq, APO AE
09303 - 4 years

7. PAY PER MONTH a NATURE or-' RESTRAINT or ACCUSED 9. IMPOSED
a. BASIC b. SEAIFOREIGN DUTY c. TOTAL
$1813.20 $100.00 $1913.20 Pre-Trial Con?nement 29 MAY 10

ll. CHARGES AND SPECIFICATIONS
1o. CHARGE I: VIOLATION OF THE UCMI, ARTICLE 92

SPECIFICATION 1: In that Private First Class Bradley E. Manning, U.S. Army, did, between on
ton Hammer, Iraq,

19 November 2009 and on or about 27 May 2010, at or near Contingene
violate a lawful general regulation, to wit: Par
by wrongfully introd




SPECIFICATION 2: In that Private First Class Bradley E. Manning, U.S. Army, did, between 0 .
- Hammer, Iraq,
4 October 2007,

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S. Army, did, between on

ion Hammer, Iraq,
Regulation 25-2, dated 24 October 2007,
nt presentation onto his personal computer,

19 November 2009 and on or about 27 May 2010, at or near Contingenc
violate a lawful general regulation, to wit: Par
by wrongfully introd tCt'0S0
re information system.

ft Office Povi:erPoi

(SEE CONTINUATION SIIEET)




- I: a IOU
25-2, dated 2





1e of a military operation ?lmed at or near Baghdad, Iraq, on or
2007, onto his personal computer, a non-secure information system.











PREFERRAL



11a. NAME OF ACCUSER (Last, First, b. GRADE

c. ORGANIZATION OF ACCUSER
HHC, 2d BCT, 10th MTN Div (LI)



DATE
20/cw 705'

AFFIDAVIT: Before me, the undersigned, authorized by law to administer oaths in cases of this character, personally appeared the
above named accuser this day of July, 20} 0. and signed the foregoing charges and speci?cations under oath that he is a person
subject to the Uniform Code of Military Justice and that he either has personal knowledge of or has investigated the matters set forth

therein and that the same are true to the best of his knowledge and belief.



yp ame icer







/7

2d BCT, 10th MTN Div (LI)

Organization of Officer

Trial Counsel

Official Capacity to Administer Oath
(See R. C.M. 307(b) must be a commissioned officer)

DD FORM 458, MAY 2000 PREVIOUS EDITION IS OBSOLETE.



12.

04004

Or? 5 30 . 2010. the accused was informed ofthe charges against him and of the name(s) of the accuser(s) known to
me (See R. C. M. 308 (899 R. c. M. 308 ifnolificaiion cannot be made.)

HHC, 2d BCT, 10th MTN Div (L1)
yp Nameo mmediale mman er Organization oflmmediale Commander



N7 RECEIPT BY SUMMARY COURT-MARTIAL CONVENING AUTHORITY

13.

The sworn charges were received at hours. 5 20 [0 HQ, 2d BSTB, 2d

Designation of Command or

COS Hammer, Iraq, APO AE 09308

Officer Exercising Summary Court Martial Junsdiclion (See R. C. M. 403)



FOR THE
commanding
yp ame rcer Official Capacity of Officer Signing
ignature'-
7 V. SERVICE OF CHARGES
14a. DESIGNATION OF COMMAND OF CONVENING AUTHORITY b. PLACE c. DATE
Referred for trial to the coun-martial convened by
. 2? . subject to the following instructions:2
By of
Command or Order
Typed Name of Officer Official Capacity of Officer Signing
Grade
Signature
15.
On . 20 . I (caused to be) served a copy hereof on eeaekunthe above named accused.
Ti/Ped Name of Trial Counsel Grade or Rank of Trial Counsel
Signature

OOTNO TES: 1 When 8" commander signs personally, inapplicable words are stricken.

2 See R. C. M. 601(9) concerning instructions. If none. so stale.

DD FORM 458 (BACK), MAY 2000 PREVIOUS EDITION IS OBSOLETE.

CONTINUATION SHEET, FORM 458, MANNING, Bradley BF 32683
Headquarters and Headquarters Company, 2d Brigade Combat Team, 1 Mountain Division
(Light Infantry), Contingency Operating Station Hammer, Iraq, APO AE 09308

Item 10 (Cont?d):



SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S. Army, did

on or about 19 November 2009 and on or about 3 April 2010 a Ingency Operating
Station Hammer, Iraq, violate a lawful Ion, to wit: Paragraph Army
Regulation 25-2 2007, by wrongfully adding unauthorized software to a Secret
rotocol Router network computer.







CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 134

at
SPEC FICATION I: In that Private First Class Bradley E. Manning, U.S. Army, did, at or
Contingency Operating Station Hammer, Iraq, between on or about 19 Nove and on or

about 5 April 2010, have unauthorized possession of photogra to the national

defense, to wit: a classi?ed video of a military 0 I med at or near Baghdad, Iraq, on or

about 12 July 2007, and did willfull Icate, deliver and transmit the video, or cause the

video to be communicat vered, and transmitted, to a person not entitled to receive it, in

violation . . Code Section 793(e), such conduct being prejudicial to good order and

me in the armed forces and being of a nature to bring discredit upon the armed forces.










network computer and obtain information that has been detennine United States
Government pursuant to an Executive Order or statute to protection against unauthorized
disclosure for reasons of national defense, to wit: sified video of a military operation
?lmed at or near Baghdad, Iraq, on or ab July 2007, and did willfully communicate,
deliver and transmit the video, or the video to be communicated, delivered and transmitted,
to a person not entitled eive it, with reason to believe that such information could be used
to the injury of nited States or the advantage of any foreign nation, in violation of 18 U.S.
Code 1030(a)(l), such conduct being prejudicial to good order and discipline in the
ed forces and being of a nature to bring discredit upon the armed forces.

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S. Army, did, at or
Contingency Operating Station Hammer, Iraq, between on or about 13 January 201 on or
about 19 February 2010, knowingly exceed his authorized access on a Seer cmet Protocol
Router network computer and obtain infonnation that has been det ed by the United States
Government pursuant to an Executive Order or statute to protection against unauthorized
disclosure for reasons of foreign relations, to wit: ssified United States Department of State
cable titled ?Reykjavik 13,? and did will ommunicate, deliver and transmit the cable, or
cause the cable to be communiea elivered, and transmitted, to a person not entitled to
receive it, with reason to ve that such information could be used to the injury of the United
States or the adv ge of any foreign nation, in violation of 18 U.S. Code Section 1030(a)(l),

eing prejudicial to good order and discipline in the armed forces and being of a
to bring discredit upon the armed forces.












(SEE CONTINUATION SIIEET 2)



32684
CONTINUATION SHEET 2, DA FORM 458, MANNING, Bradley
Headquarters and Headquarters Company, 2d Brigade Combat Team, 10t Mountain Division
(Light Infantry), Contingency Operating Station Hammer, Iraq, APO AE 09308

Item 10 (Cont?d):







ng of a nature to bring discredit upon the armed forces.

SPECIFICATION 5: In that Private First Class Bradley E. Manning, U.S. Anny, did, at 0

Contingency Operating Station Hammer, Iraq, between on or about 13 la and on or
about 19 February 2010, intentionally exceed his authoriz on a Secret Internet Protocol
Router network computer and obtain infor om the United States Department of State, to
wit: a classi?ed cable titled 1 13,? in violation of 18 U.S. Code Section 1030(a)(2),
such conduc rejudicial to good order and discipline in the anned forces and being of a
to bring discredit upon the anned forces.

SPECIFICATION 7: In that Private First Class Bradley E. Manning, U.S. Anny, did, at or
Contingency Operating Station Hammcr, Iraq, on divers occasions, betwcc out 19
November 2009 and on or about 27 May 2010, intentional! 1S authorized access on a
Secret Internet Protocol Router network co obtain infonnation from the United States
Department of State, to wit: an 150,000 diplomatic cables, in violation of 18 U.S. Code
Section 103 uc conduct bcing prejudicial to good order and discipline in the anned

and being of a nature to bring discredit upon the anned forces.








(SEE CONTINUATION SHEET 3)

CONTINUATION SHEET 3, DA FORM 458, MANNING, Bradley BF 32685

Headquarters and Headquarters Company, 2d Brigade Combat Team, l0t Mountain Division
(Light Infantry), Contingency Operating Station Hammer, Iraq, APO AE 09308

Item 10 (Cont?d):

WWI

SPECIFICATION 8: In that Private First Class Bradley E. Manning, U.S. Army, did, at or
Contingency Operating Station Hammer, Iraq, on divers occasions, betwee out 19
November 2009 and on or about 27 May 2010, intentionall Is authorized access on a
Secret Internet Protocol Router network co obtain information from the United States
Department of Defense, to st?ed Microsoft Office PowerPoint presentation, in
violation of . . Section 1030(a)(2), such conduct being prejudicial to good order and
p.-Ine in the armed forces and being of a nature to bring discredit upon the armed forces.






(END OF CHARGES)

32686

CHARGE SHEET
l. PERSONAL DATA

1. NAME OF ACCUSED (Last, First, Ml) 2. 3. GRADE OR RANK 4. PAY GRADE

MANNING, Bradley E. PFC E- 3
5. UNIT OR ORGANIZATION 6. CURRENT SERVICE

Headquarters and Headquarters Company, aW??mLm?E

U.S. Army Garrison, Joint Base Myer?Henderson Hall

Fort Myer, Virginia 22211 4 years
7. PAY PER MONTH 3. NATURE OF RESTRAINT OF 9. IMPOSED

ACCUSED
a. BASIC b. SEAIFOREIGN DUTY c. TOTAL
$1,950.00 None $1,950.00 Pre?Trial Confinement 29 May 10
I2. ll. CHARGES AND SPECIFICATIONS

10. It VIOLATION OF THE UCMJ, ARTICLE 104.

THE SPECIFICATION: In that Private First Class Bradley E. Manning, U.S. Army,
did, at or near Contingency Operating Station Hammer, Iraq, between on or about
1 November 2009 and on or about 27 May 2010, without proper authority,
knowingly give intelligence to the enemy, through indirect means.

hp
CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 134.

SPECIFICATION 1: In that Private First Class Bradley E. Manning, U.S. Army,
did, at or near Contingency Operating Station Hammer, Iraq, between on or about
1 November 2009 and on or about 27 May 2010, wrongfully and wantonly cause to
be published on the internet intelligence belonging to the United States
government, having knowledge that intelligence published on the internet is
accessible to the enemy, 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.

(See Continuation Sheet)

PREFERRAL

11a. NAME OF AOCUSER (Last, First, MI) b. GRADE c. ORGANIZATION OF ACCUSER
Leiker, Cameron SIGNATURE e. DATE
-

AFFIDAVIT: Before me, the undersigned, authorized by law to administer oaths in cases ofthis character, personally appeared the
above named accuser this day of [?ack 2011, and signed the foregoing charges and speci?cations

under oath that he/she is a person subject to the Uniform Code of Military Justice and that he/she either has personal knowledge of
or has investigated the matters set forth therein and that the same are true to the best ofhis/her knowledge and belief.

ASHDEN FEIN MDW, OSJA
Typed Name of Officer Organization of Officer
Trial Counsel

Official Capacity to Administer Oath
(Sea R. C. M. 307{b) must be a commissioned Officer)



DD FORM 458, MAY 2000 PREVIOUS EDITION IS OBSOLETE.



12-? A 7r
On 2011, the accused was informed ofthe charges against himlher and ofthe name(s) of
The accuser( known to me (See R. C. M. 308 (See R. C. M. 308 if notification cannot be made.)

CAMERON A . LEIKEP. HQ CMD BN USA
Typed Name of immediate Commander Organization of immediate Commander



IV. RECEIPT BY SUMMARY COURT-MARTIAL CONVENING AUTHORITY
13.

The sworn charges were received at hours, 7&1, 2011 at CMD BN I USA

Designation of Command or

Officer Exercising Summary Coun??Martial Jurisdiction See C. M. 403)

CAMERON A. LE I KER . Commanding
Typed Name of Officer Official Capacity of Officer Signing

O-5



V. REFERRAL: SERVICE OF CHARGES

14a. DESIGNATION OF COMMAND OF CONVENING AUTHORITY b. PLACE c. if

Headquarters, U.S. Army Military 20120203
District of Washinoton Fort McNair, DC
General Court?Martial convening Order

Number 1, this headquarters, dated

- 2 February 20? .subject to the following instructionszz None .

BY Command of MG MICHAEL S. LINNINGTON

Command or Order

Chief, Military Justice

Typed Name of Of?cer Official Capacity of Officer Signing

Grade



igna ure
15.
On 3 Feb IL I (caused to be) served a copy hereof on (oada-?who above named accused.

ASHDENKEEIN 0-3



WP Grade or Rank of Trial Counsel



FOOTNOTES: 1 when an appropriate commander signs personally, inapplicable words are stricken.

2 See R. C. M. 601(9) conceming instructions. lf none, so state.

DD FORM 458 (BACK), MAY 2000

32688
CONTINUATION SHEET, DA FORM 458, MANNING, Bradley E.,
Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base
Myer?Henderson Hall, Fort Myer, Virginia 22211

Item 10 (Cont'd):

SPECIFICATION 2: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 15 February 2010 and on or about 5 April 2010,
having unauthorized possession of information relating to the national
defense, to wit: a video file named ?12 JUL 07 CZ ENGAGEMENT ZONE 30
GC Anyone.avi", 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, the said information, to a
person not entitled to receive it, in violation of 18 U.S. Code
Section 793(e), 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.

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 22 March 2010 and on or about 26 March 2010,
having unauthorized possession of information relating to the national
defense, to wit: more than one classified memorandum produced by a
United States government intelligence agency, 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, the said information, to a person not entitled to receive
it, in violation of 18 U.S. Code Section 793(e), 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.

SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on or about 5 January 2010,
steal, purloin, or knowingly convert another,
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, 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.

32689
CONTINUATION SHEET, DA FORM 458, MANNING, Bradley E.,
Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base
Myer?Henderson Hall, Fort Myer, Virginia 22211

SPECIFICATION 5: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on or about 9 February 2010,
having unauthorized possession of information relating to the national
defense, to wit: more than twenty classified records from the
Combined Information Data Network Exchange Iraq database, 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, the said information, to a person not
entitled to receive it, in violation of 18 U.S. Code Section 793(e),
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.

SPECIFICATION 6: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on or about 8 January 2010,
steal, purloin, or knowingly convert another,
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 Section 641, 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.

SPECIFICATION 7: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on or about 9 February 2010,
having unauthorized possession of information relating to the national
defense, to wit: more than twenty classified records from the
Combined Information Data Network Exchange Afghanistan database, 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, the said information, to a person not
entitled to receive it, in violation of 18 U.S. Code Section 793(e),
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.

32690

CONTINUATION SHEET, DA FORM 458, MANNING, Bradley E.,
Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base
Myer?Henderson Hall, Fort Myer, Virginia 22211

SPECIFICATION 8: 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, 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: 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 Section 641, 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.

SPECIFICATION 9: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 8 March 2010 and on or about 27 May 2010, having
unauthorized possession of information relating to the national
defense, to wit: more than three classified records from a United
States Southern Command database, 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, the
said information, to a person not entitled to receive it, in violation
of 18 U.S. Code Section 793(e), 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.

SPECIFICATION 10: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 April 2010 and on or about 27 May 2010, having
unauthorized possession of information relating to the national
defense, to wit: more than five classified records relating to a
military operation in Farah Province, Afghanistan occurring on or
about 4 May 2009, 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, the said information, to a
person not entitled to receive it, in violation of 18 U.S. Code
Section 793(e), 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.



32691

CONTINUATION SHEET, DA FORM 458, MANNING, Bradley E.,

. Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base

Myer?Henderson Hall, Fort Myer, Virginia 22211

SPECIFICATION 11: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 1 November 2009 and on or about 8 January 2010,
having unauthorized possession of information relating to the national
defense, to wit: a file named PAX.zip" containing a video named
PAX.wmv", 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, the said information, to a
person not entitled to receive it, in violation of 18 U.S. Code
Section 793(e), 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.

SPECIFICATION 12: 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, 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, 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.

SPECIFICATION 13: 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 27 May 2010, having
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: more than seventy?five classified United
States Department of State cables, willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted the
said information, to a person not entitled to receive it, with reason
to believe that such information so obtained could be used to the
injury of the United States, or to the advantage of any foreign
nation, in violation of 18 U.S. Code Section 1030(a)(1), 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.



32692

CONTINUATION SHEET, DA FORM 458, MANNING, Bradley E.
Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base
Myer?Henderson Hall, Fort Myer, Virginia 22211

SPECIFICATION 14: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 15 February 2010 and on or about 18 February 2010,
having knowingly exceeded authorized access on a Secret Internet
Protocol Router Network computer, and by means of such conduct having
obtained 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: a classified Department of
State cable titled ?Reykjavik?13", willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted the
said information, to a person not entitled to receive it, with reason
to believe that such information so obtained could be used to the
injury of the United States, or to the advantage of any foreign
nation, in violation of 18 U.S. Code Section l030(a)(l), 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.

SPECIFICATION 15: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 15 February 2010 and on or about 15 March 2010,
having unauthorized possession of information relating to the national
defense, to wit: a classified record produced by a United States Army
intelligence organization, dated 18 March 2008, 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, the said information, to a person not entitled to receive
it, in violation of 18 U.S. Code Section 793(e), 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.

SPECIFICATION 16: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 May 2010 and on or about 27 May 2010, steal,
purloin, or knowingly convert another, a
record or thing of value of the United States or of a department or
agency thereof, to wit: the United States Forces - Iraq Microsoft
Outlook SharePoint Exchange Server global address list belonging to
the United States government, of a value of more than $1,000, in
violation of 18 U.S. Code Section 641, 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.

32693
CONTINUATION SHEET, DA FORM 458, MANNING, Bradley 13.,
Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base
Myer-Henderson Hall, Fort Myer, Virginia 22211


ass:-nr-I-em-L cmuzcs: VIOLATION or me UCMJ, ARTICLE 92.

SPECIFICATION 1: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 1 November 2009 and on or about 8 March 2010,
violate a lawful general regulation, to wit: paragraph
Army Regulation 25-2, dated 24 October 2007, by attempting to bypass
network or information system security mechanisms.

SPECIFICATION 2: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 February 2010 and on or about 3 April 2010,
violate a lawful general regulation, to wit: paragraph
Army Regulation 25-2, dated 24 October 2007, by adding unauthorized
software to a Secret Internet Protocol Router Network computer.

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq, on
or about 4 May 2010, violate a lawful general regulation, to wit:
paragraph Army Regulation 25-2, dated 24 October 2007, by
adding unauthorized software to a Secret Internet Protocol Router
Network computer. -

SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 May 2010 and on or about 27 May 2010, violate a
lawful general regulation, to wit: paragraph Army
Regulation 25-2, dated 24 October 2007, by using an information system
in a manner other than its intended purpose.

SPECIFICATION 5: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq, on
divers occasions between on or about 1 November 2009 and on or about
27 May 2010, violate a lawful general regulation, to wit: paragraph
7-4, Army Regulation 380-5, dated 29 September 2000, by wrongfully
storing classified information.

32694

Appellate Exhibit 381
2 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



FOR OFFICIAL use ONLY


IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES OF AMERICA
ADDITIONAL PROTECTIVE
ORDER FOR
CLASSIFIED INFORMATION

V.

Manning, Bradley E.

PFC, U.S. Army,

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

DATED:



l. (U) This matter comes before the Court upon motion by prosecution for an additional
Protective Order. in conjunction with this Court's Protective Order for Classi?ed Information,
dated 16 March 2012 (Appellate Exhibit to prevent the unauthorized disclosure or
dissemination of classi?ed national security information which will be reviewed by, or made
available to, the defense in this case.

2. (U) Pursuant to the authority granted under Military Rule of Evidence (MRE) 505; the
general supervisory authority of the Court; and in order to protect the national security, it is
hereby ORDERED that the Prosecution?s Motion to Redact or Delete Classi?ed lnforrnation
from Evidence Made Available to the Defense under MRE 505(g)(2) is and it is
further ORDERED that:

a?T he defense counsel and the defense computer forensic experts may only
examine the forensic metadata for the following ?les on the three pieces of digital media:

b. (U) The defense will utilize the forensic software (AccessData Lab 3.x) and the laptop
provided by the Government during the course of its examination.

c. (U) The defense will conduct all forensic examinations of the three items of digital
media under the supervision of the Court Security Officer.

I: 3 7'1-

I

P/as Li

OF

FOR OFFICIAL USE ONLY



- FOR OFFICIAL USE ONLY

(U) ORDERED, this thec?f day of November 2012.

427/ 7/

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

2

FOR OFFICIAL USE ONLY

32697

UNITEDSTATESOF AMERICA
V.

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

Sti^nlated
SpeedyTrial Chronology
^November 2012

Pursuant to Rule3.2,Rules ofPractice before Army CourtsMartial 2012,the United
States and Defense stipulate to the below chronology ofdates and events tor the above-captioned
courtmartial.
Date

Event

27-May-lO
2^-May-lO
30-May-lO
31-May-lO

PFC Manning confined in Cl^U with armed guard
PFC Manning ordered into pretrial confinement
Military Magistrate approved pretrial confinement
PFC Manning transferred toTheater Field ConfinementFacility in
l^uwait
5-Jul-lO
Original Charges preferred
6JullO
SPCMCA appointedLTC Craig Merutl^aas the Article 32
Investigating Officer
11-Jul-lO Article 32 Investigating Officer denied defense'srequest tor anRCM
706 board
11-Jul-lO Defense re^uestRCM 706 board and delay of Article 32 investigation
12-Jul-lO Defense requested delay of Article 32 investigation untilRCM 706
board completed and until the PFC Manning could resolve issues
relating to civilian defense counsel and delense expert witnesses
12JullO SPCMCA granted defense request to delayArticle 32 investigation
13JullO Defense requested for appointment ofexpert in computer torensics
23JullO SPCMCA granted defense request for expert in computer forensics
2^-Jul-lO GCMCA requested transfer of jurisdiction to M D ^
2^-JullO GCMCA signed Protective Order Governing Classified Information
2^JullO PFC Manning arrived at quantico
2-Aug-lO GCMCA releasedjurisdiction to SPCMCA
2-Aug-lO SPCMCA ordered Article 32 investigation
3-Aug-lO SPCMCA orderedRCM 706 board
^-AuglO Appointment ofLTC Paul Almanza as the Article 32 Investigating
Officer
11-Aug-lO Defense requested delay ofArticle 32 investigation until completion of
RCM 706 board
AP^E^^B.^^^^^^^^^^^^
PB^^.^^^^^^^
PA^^^^
PAGB

32698

12Aug-10 Article 32 Investigating Officer recommended that SPCMCA approve
the delense delay request for completion ofRCM 706 board
12-Aug-lO SPCMCA approved defense request tor delay ofArticle 32
investigation states ^^periodfromll August 2010until the RCM 706
Sanity Board completion is excludable defense delay"
25AuglO Defense requested delay ofRCM 706 board until forensic psychiatry
expert appointed to defense team
25-Aug-lO SPCMCA excludes the period between 27August2010and until the
GCMCA tal^es action ofthe defense request for appointment ofa
forensic psychiatry expert consultant is excludable delay under RCM
707(c)
26-Aug-lO Defense request for delay inRCM 706 board to comply with
prohibitions on disclosure ofclassified information
3-SeplO Detense requested security clearance tor each defense member.to
include experts
17Sep-10 SPCMCAappointed defense security expert consultant and security
officer for RCM 706 board
17SeplO SPCMCA issued Protective Order Governing Classified Information
17-Sep-lO SPCMCA ordered Preliminary Classification Review ofPFC
Manning'sMental Impressions (PCR)
l^Sep-10 Defense objected to PCR
22-Sep-lO Superseding Orderfor l^reliminary Classification Review ofPFC
Manning^sMental Impressions
2^-Sep-lO Detense requested second defense security expert to assist PCR, tor
PCR to tal^e place in SCIF, and tor PFC Manning to be given access to
classifiedinformation
120ctlO SPCMCA appointed expert consultant in forensic psychiatry for
defense
120ctlO SPCMCA appointed second defense security expert to assist with PCR
120ctlO SPCMCAaccountsforexcludabledelayfroml2July2010untill2
October 2010under RCM 707(c)
22 0ctlO Discovery Production Bates^0000000100000^2^(^2^pages),
including Preferral Pacl^et ^Unclassified^
2^0ctlO Defense requested appointment ofexpert in information assurance to
the defense team
2^-Oct-lO Defense submitted discovery request
10-Nov-lO Discovery Production Bates^ 00000^30 - 00000^50 (21 pages),
including Initial Article 32 Pacl^et^Unclassit^edj
10-Nov-lO SPCMCA Accounts for excludable delay from 12October2010until
10November2010under RCM 707(c)
11-Nov-lO Discovery Production Bates^00000^51 -00000^7^(2^pages),
including Initial Article 32 Pacl^et ^Unclassified^
15-Nov-lO Defense submitted discovery request
1^-Nov-lO Discovery Production Bates^ 00000^75 - 00000662 (1^^ pages),
including Initial Article 32 Pacl^et^Unclassifiedj

32699

2^-Nov-lO
^DeclO
13DeclO
17DeclO
17DeclO
l^DeclO
30DeclO
3Jan-ll
5-Jan-ll
5-Jan-ll
lOJan-11
13Janll
l^Janll
l^Janll
l^Janll
lBl-Jan-11
l^Janll
21Janll
3-Feb-ll
^Febll
^Febll
15-Feb-ll
16Febll
17-Feb-ll
1^-Feb-ll
25-Feb-ll
1-Mar-ll
IMarll
1^-Mar-ll

Defense requested appointment ofinvestigator for defense
Defense submitted discovery rec^uest
ResultsofPreliminary Classification Review provided to the
Prosecution
SPCMCA denied detense request tor appointment ofinvestigator tor
detense
SPCMCA accounts tor excludable delay fromlONovember2010until
17December2010under RCM 707(c)
Defense requested the names ofthose members on the RCM 706 board
Defense submitted MRE 505(h) motion for RCM 706 board
DiscoveryProductionBates^00000663 00000771 (10^ pages),
including Preliminary Inquiry ^Unclassified^
Defense submitted memorandum requesting change ofthe PFC
Manning^sclassification and assignment
Prosecution responded to defense nofification under MRF 505(h)
Defense submitted discovery request
Defense requested speedy trial and submits anRCM 305(g) request to
SPCMCA
Discovery Production Bates^00000772 -00000^51 (LOpages),
includingl561nvestigation^Unclassifiedj
SPCMCA appointed expert in information awareness tor detense
SPCMCA approved defense request for expert in lorensic psychiatry
SPCMCA accounts for excludable delay fioml7December2010until
l^January2011under RCM 707(c)
Detense submitsadiscovery request
SPCMCA denied defense RCM 305(g) request
SPCMCA orderedRCM 706 to resume
Discovery Production Bates^ 00000^52 000010^^(1^^ pages),
including Medical Records ^Unclassit^edj
Discovery Production 8ates^ 00001050 - 00001051 (2 pages),
including Certit^cateofService to LibertyTDS^Unclassifiedj
SPCMCA accounts for excludable delay fioml^January2011until 15
February 2011under RCM 707(c)
Defense submitted discovery request
Defense submitted motion to compel discovery
Defense requested for appointment ofneuropsychologist for defense
Prosecution submitted response to defense'smotion to compel
discovery to the Article 32 investigating officer
Additional charges preferred
Discovery Production Bates^00001052 -00011^^^(103^7 pages),
including35FTRN POI and 0^^^ticoArtl3^ Response ^Unclassified^
RCM 706 board submitted extension request

32700

1^-Marll
l^Mar-11
l^Marll
5-Apr-ll
5-Aprll
7Aprll
^Aprll
^-Apr-11
12Apr-ll

12Aprll
15-Aprll
15-Apr-ll
l^Aprll
20-Apr-ll
20Aprll
22-Apr-ll
22-Apr-ll
25-Apr-ll

26-Apr-ll
2^-Apr-ll
^-May-11
12-May-ll
12-May-ll
13-May-ll
22-May-ll
2^-May-ll
26-May-ll

Original charges dismissed
SPCMA approves ofthe RCM 706 Board Extension Request and
directs the Board to complete its worl^byl6April 2011
SPCMCA accounts for excludable delay froml5February201untill^
March2011under RCM 707(c)
SPCMCA appointed neuropsychologist for defense
SPCMCA denied defense request for mitigation expert
Discovery Production Bates^00011^^^ 00011^62(l^pages),
including Artl3^ Response ^Unclassified^
Discovery Production Bates^ 00011^63 - 00011573 (lllpages),
including Artl3^ Response ^Unclassified^
RCM 706 board interviewed PFC Manning
Discovery Production Bates^0001157^-00012711 (113^ pages),
including Security Classification Guide, OMPF, Enemy Information
^Unclassified^
Prosecution responded to defense discovery request datedlOJanuary
2011andl6February2011
RCM 706 board submitted extension request
SPCMCA approvedRCM 706 board extension request
Discovery ProductionBates^ 00012712-00012720(^pages),
including Art 13^ Response ^Unclassified^
PFC Manning transferred from O^^^tico to the Joint Regional
Correctional Facility at Fort Leavenworth, l^ansas
Defense requested expert neuropsychologist for Fort Leavenworth
The RCM 706 Board submits its report
SPCMCA accounts for excludable delay froml^March2011until 22
April 2011underRCM 707(c)
Prosecution requested delay ofArticle 32 investigation until the earlier
ofthe completion ofthe OCA Disclosure Requests and OCA
Classification Reviews or 25 May2011
Defense objected to prosecution'srequest tor delay of Article 32
investigation
SPCMCAapproved prosecution'srequest toradelay of Article 32
investigation
SPCMCA approved defense'srequest for expert in neuropsychology
Discovery ProductionBates^00012721 - 00012^2^(20^ pages),
includingArt 13^ Response ^Unclassifiedj
SPCMCAaccounts for excludable delay fiom 22 April 2011untill2
May 2011under RCM 707(c)
Defense submitted discovery rec^uest
Prosecution submitted request to delayArticle 32 investigation
Defense objected to prosecution'srequest to delayArticle 32
investigation
SPCMCA approved prosecution'srequestforadelay ofArticle 32

32701

investigation
^Junll
Discovery Production Bates^ 00012^25 - 00012^33(^pages),
including Art 13^ Response ^Unclassified^
17-Junll SPCMCA accounts for excludable delay from 12May2011untill7
June 2011underRCM 707(c)
2 2 J u n l l SPCMCA approved facility and storage ofclassified information
22-Jun-ll SPCMCA issued Protective Order governing law enforcement sensitive
information and other sensitive information
22-Jun-ll SPCMCA issued Protective Order governing Secretary ofthe Army
AR15-6 investigation
27Junll Prosecution requested delay ofArticle 32 investigation
2^-Jun-ll Defense objected to prosecution'srec^uest to delayArticle 32
investigation
30-Junll Discovery Production Bates^00012^3^ 00021363 (^^30 pages). Sec
Armyl5-6^Unclassifiedj
SPCMCA approved prosecution'srequest to delayArticle 32
5-Julll
investigation
SPCMCA issued Accounting Memorandum for Period ofExcluded
13Julll
Delay
Prosecution requested delay ofArticle 32 investigation
25Jul-ll
25-Jul-ll Defense objected to prosecution'srequest for delay of Article 32
investigation and requests speedy trial
Discovery Production Bates^0002136^ 0002^3^2 (301^pages),
25Julll
including CID information ^Unclassified^
25-Jul-ll DiscoveryProductionBates^ 0003661^ 00036^02(1^5 pages),
including CID information ^Unclassifiedj
26-Jul-ll SPCMCA approved prosecution'srequestforadelay ofArticle 32
investigation
Discovery Production Bates^00036^03 - 00036^03(1 pages),
2Augll
including CID information ^Unclassified^
^Augll
Defense requested forensic expert
Discovery Production Bates^ 00036^0^ 000^2^06(6003 pages),
^-Augll
including Sec Armyl5-6 GOMORs ^Unclassified^
10-Aug-ll SPCMCA appointed defense expert in forensic psychiatry
l O A u g l l SPCMCA appointed defense forensic computer experts and request for
computer hardware
lOAug-11 SPCMCA accounts for excludable delay fioml3July2011until 10
August2011underRCM 707(c)
11-Augll Discovery Production Bates^000^2^07 - 000^^^6^ (205^ pages),
including Pretrial Confinement Documents ^Unclassified^
25-Aug-ll
27-Aug-ll
2^Augll

Prosecution requested delay ofArticle 32 investigation
Defense objected to prosecution'srequest to delayArticle 32
investigation
SPCMCA approved prosecution'srequest tbrdelay ofArticle 32

32702

investigation
ISepll
Discovery Production Bates^000^^^65 -000^5301 (^37 pages),
including Military Intelligence Investigations^Classified and
Unclassified^
15Sepll SPCMCA accounts for excludable delay fromlOAugust2011until 15
September 2011under RCM 707(c)
l ^ S e p l l Discovery Production Bates^0002^3^3 -0002^^5^ (77 pages),
including Deleted Information ^Unclassified^
21-Sep-ll Detense submitted discovery request
26Sepll Prosecution requested delay ofArticle 32 investigation
27-Sep-ll Defense objected to prosecution'srequest for delay of Article 32
investigation
2^-Sep-ll SPCMCA approved prosecution'srequest for delay of Article 32
investigation
30ctll
Discovery Production Bates^ 0002^^60 00036617 (1215^ pages),
including CID information ^Unclassified^
12-Octll Discovery Production Bates^000^5302 -000^55^1 (2^0 pages),
including CID information ^Unclassifiedj
13-Oct-ll Defense submitted discovery request
SPCMCA accounts for excludable delay froml5September2011until
l^Octll
1^0ctober2011underRCM 707(c)
2 0 O c t l l Discovery Production Bates^ 000^55^2 -000^6073 (^^2 pages),
including CID information ^Unclassified^
25-Octll Defense objected to prosecution'srequestforadelay of Article 32
investigation
25-Octll Prosecution requestedadelay of Article 32 investigation
27 0ct-ll SPCMCAapprovedprosecution^sre^uest to delayArticle 32
investigation
^-Nov-11 Discovery Production Bates^ 000^607^- 0037512^ (32^056 pages),
including CID Forensic Reports ^Unclassified^
^-Nov-11 Discovery ProductionBates^00375130 -003751^2(53 pages),
including Military Intelligence Investigation ^Unclassified^
^-Nov-11 Discovery Production Bates^ 00376^5^- 0037^175 (1222 pages),
including Charged Documents, C3 Report, Classification Review
^Classifieds
^-Nov-11 Discovery Production Bates^ 0037^176 - 0037^176(1 pages),
includingVolumes.txt ^Unclassifiedj
^-Nov-11 Discovery Production Bates^0037^177 -0037^62^(^^^ pages),
including Military Intelligence Investigation and Classified CID
information^ClassifiedandUnclassifiedj
15-Nov-ll Defense submitted discovery request
16-Novll Defense objected to prosecution^sre^uest for delay of Article 32
investigation.
16-Nov-ll Defense submitted discovery request

32703

16-Nov-ll

I6N0V-II

16-Nov-ll
16-Nov-ll
16-Nov-ll

16-Nov-ll

17-Nov-ll

17-Nov-ll
23-Nov-ll
23-Nov-ll
23-Nov-ll
1-Dec-ll
7-Decll
7Decll

IDecll

IDecll
16Decll
1^-Decll

Prosecution requestedadelay ofthe Article 32 investigation and
re^uestedastart date ofthe Article 32 investigation forl6December
2011
SPCMCA approves the Prosecution'srequest for delay and excludes
the period from 22 April 2011untill6December2011as excludable
delayunder RCM 707(c)
SPCMCA accounts for excludable delay froml^October2011untill6
November 2011underRCM 707(c)
SPCMCA issued special instructions to the Article 32 investigating
officer
Defense objects to the Prosecution proposed start date and proposing an
earlier date ofl2December 2011. The Defense also objects to any
delay being excluded under RCM 707(c)and instead requested the time
be counted against the Prosecution for SpeedyTrial and ArticlelO
purposes
Prosecution request the Convening Authority to exclude the period
betweenl6November2011andl6December2011as excludable
delayunder RCM 707 (c)
Discovery Production Bates^ 0037^626 -0037^6^^(2^pages),
including CID information and classification review(s)^Classified and
Unclassified^
Discovery Production Bates^ 0037^650 - 003^^256 (5607 pages),
including Sec Armyl5-6 GOMORs ^Unclassified^
Discovery Production Bates^0037^625 -0037^625 (1 pages),
includingDAForm^l37^Classifiedj
Discovery Production Bates^00^02272 -00^07^^0(571^pages),
including Sec Army 156GOMORs^Unclassifiedj
Discovery Production Bates^00^07^^1-00^0^67^(16^^ pages),
including CID information and DSS case file ^Unclassified^
Discovery Production Bates^ 003^^257 -00^02271 (1^015pages),
including Sec Armyl5-6 GOMORs ^Unclassified^
Discovery Production Bates^003751^3 - 003751^7(15pages),
including Sec Armyl5-6 GOMORs ^Unclassified^
Discovery Production Bates^00^10600 - 00^10670 (71 pages),
including Enemy information, PFC Manning's office worl^ product, and
classit^cationreview(s)^Classified^
Discovery Production Bates^ 003751^^ 00376^53 (1756 pages),
including CID information, Schmiedl Files, Classification Reviews
^Unclassified^
Discovery Production Bates^00^10671-00^106^^(l^pages),
including CID intormation ^Unclassified^
Article 32 investigation began
Discovery Production Bates^00^106^0-00^106^7 (ipages),
including CID information and pretrial confinement information
^Unclassified^

32704

1^-Decll

Discovery Production Bates^00^106^^-00^10701 (ipages),
including Classification review^Classified and Unclassified^

22Decll
3-Jan-12

Article 32 investigation concluded
Prosecution rec^uested Article 32 Investigating Officer exclude as
reasonable delay anytime between 22 December 2011and3January
2012that he did not worl^ on the Article 32 investigation based on the
federal holidays and weel^ends
SPCMCA accounts for excludable delay froml6November2011until
15December2011under RCM 707(c)
Article 32 investigating officer sent an email excluding asareasonable
delay the days between 23 December 2011and3January2012when
he did not worl^ on the Article 32 investigation
Article 32 investigating officer completed his report and
recommendations, including providing the SPCMCAwith an
excludable delay memorandum
Discovery Production Bates^00^10702 00^107^^ (^7 pages),
including Article 32 investigating officer's final report and pretrial
confinement recordings ^Unclassified^
Defense submitted discovery request
Discovery ProductionBates^00^107^^ 00^10^70(^2 pages),
including CID information and PFC Manning's Sl^ype logs
^Unclassified^
Discovery Production Bates^00^10^71-00^113^2(^72 pages),
including CID Docs, Art 32 Audio-Unclassified ^Unclassified^

3Jan-12
^-Jan-12

llJan-12

12-Jan-12

20-Jan-12
20Janl2

27Janl2
27-Jan-12

Discovery Production Bates^00^113^3 00^11366 (2B1 pages),
including Manning Computer Logs, Closed session 11121^
^Unclassified^
27Janl2 Prosecution responded to defense discovery request dated 2^ October
2010, 15November2010,^December2010,10January 2011,16
February 2011.13May 2011,13 0ctober 2011,15November 201416
November 2011.and 20 January2012
31-Janl2 Defense submitted discovery request
3Febl2
GCMCA refers the case
3-Feb-12 Court received Electronic Docl^et Notification
6Febl2
Defense requested coordination tor transportation ofPFC Manning to
defense meeting
^Feb-12 Telephonic RCM ^02 session
16-Feb-12 Defense filed Motion to Compel Discovery
23-Feb-12 Arraignment
13-Mar-12 Discovery Production Bates^00^11367 - 00^12613(12^7 pages),
including CID information/Attestations/PTC Visitation Logs, Audio
Logs ^Unclassified^
15-Mar-12 Article 3^(a)session began
16Marl2 Article 3^(a)session concluded

32705

16-Mar-12
22-Mar-12
28-Mar-12
12-Apr-12

12-Apr-12

24-Apr-12
24-Apr-12
26-Apr-12
15-May-12
15-May-12

15-May-12
18-May-12
18-May-12
21-May-12
21-May-12
24-May-12

29-May-12
30-May-12
4-Jun-12
6-Jun-12
6-Jun-12
8-Jun-12
13-Jun-12

Discovery Production Bates #00412614-00417914 (5301 pages),
including FBI information [Unclassified]
Email sent by then-CPT Fein stating Prosecution's position on RCM
701 and classified evidence
RCM 802 telephonic conference
Discovery Production Bates # 00417915 - 00419646 (1732 pages),
including FBI information, PFC Manning AKO-S email, trial
documents, DISA and JIEDDO information [Classified and
Unclassified]
Discovery Production Bates # 00419647 - 00419804 (158 pages),
including CID information, damage assessment(s), motions hearing
audio [Unclassified]
Article 39(a) session began
Discovery Production Bates # 00419805 - 00445503 (25699 pages),
including Interim CID Forensic Reports [Classified and Unclassified]
Article 39(a) session concluded
Discovery Production Bates # 00445504 - 00447091 (1588 pages),
including FBI information [Classified]
Discovery Production Bates # 00447092 - 00447392 (301 pages),
including Administrative documents, CID information, and damage
assessment(s) [Unclassified]
Discovery Production Bates # 00447393 - 00447439 (47 pages),
including Damage assessments [Classified]
Discovery Production Bates # 00447440 - 00447666 (227 pages),
including FBI information [Classified and Unclassified]
DOS Draft Damage Assessment available for inspection with
prosecution [Classified with Special Control Measures]
Discovery Production Bates # 00447667 - 00447817 (151 pages),
including Grandjury information [Unclassified]
Discovery Production Bates # 00447818 - 00447848 (31 pages),
including Damage assessments and CIA information [Classified]
Discovery Production Bates # 00447849 - 00447944 (96 pages),
including Pretrial confinement recordings and photos, CID information,
and trial documents [Classified]
Discovery Production Bates # 00447945 - 00449240 (1296 pages),
including Trial documents [Classified]
RCM 802 telephonic conference
Discovery Production Bates # 00449241 - 00449242 (2 pages),
including DOE damage assessment [Classified]
Article 39(a) session began
DIA Information Review Task Force Report available for inspection
with prosecution [Classified with Special Control Measures]
Article 39(a) session concluded
Discovery Production Bates # 00449243 - 00449402 (160 pages).

32706

25-Jun-12
26Junl2
2Jull2

3Jul-12

3-Jul-12

3Jull2
12Jull2

12Jul-12
16-Jul-12
20Jul-12
27-Jul-12
27-Jul-12
28Jull2
2-Aug-12

including DflS damage assessment[Classified]
Article 39(a)session
Defense submitted discovery request
Discovery ProductionBates#00508935 00508940(6pages), CIA
WikiLeaksTask Force Report available for inspection with prosecution
[Classified with Special Control Measures]
Discovery Production Bates#00449403 00449464 (62 pages),
including CID information, trial documents, and DISA logs
[Unclassified]
Discovery Production Bates# 00449465 -00449552 (88 pages),
including CID report, damage assessment(s), and PFC Manning's
emails[Classified]
Prosecution responded to defense'sdiscovery request date 26 June
2012
Discovery Production Bates#00449553 00449571 (19pages),
including Pretrial confinement recordings and CID lorensic report
[Unclassified]
Discovery Production Bates#00449572 - 00449581 (10pages),
including DISA information[Classified]
Article 39(a)session began
Article 39(a)session concluded
Discovery Production Bates#00449793 - 00449942 (150pages),
including Brig Emails [Unclassified]
RCM 802 telephonic conference
Discovery Production Bates#00449582 -00449764 (183 pages),
including NGA information[Classified]
Discovery Production Bates#00449765 00449792 (28 pages),
including USCYBERCOM and FBI damage assessments[Classified]

2-Aug-12

Discovery Production Bates#00449943 -00479483 (29541 pages),
including Joint Staft7DOD^Fl(^DA^DIAinformation[Classified]

2-Aug-12

Discovery Production Bates#00480632 - 00480670 (39 pages),
including DIA information[Classified]
Discovery Production Bates#00479490 -00479508 (19pages),
including DIA information[Classified]
Discovery Production Bates#00479513 - 00479518 (6pages),
including DIA information[Classified]
Discovery Production Bates# 00479523 -00479583 (61 pages),
including DIA information[Classified]
Discovery Production Bates#00479591- 00479683 (93 pages),
including DIA information[Classified]
Discovery ProductionBates#00479686 - 00480519 (834 pages),
includingDIA information[Classified]
Discovery Production Bates#00480522 -00480624 (103 pages),
including DIA information[Classified]

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

32707

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

Discovery ProductionBates# 00480678 00480785 (108 pages),
including DIA intormation[Classified]
Discovery Production Bates#00480788 - 00481082 (295 pages),
including DIA information[Classified]
Discovery Production Bates# 00481084 -00494337 (13254 pages),
including DIA information[Classified]
Discovery Production Bates# 00494341- 00496277(1937 pages),
including DIA information[Classified]
Discovery Production Bates#00496283 00496462 (180 pages),
including DIA information[Classified]
Discovery Production Bates#00496470 00498654 (2185 pages),
including DIA information[Classified]
Discovery Production Bates#00498658 - 00498721 (64 pages),
including DIA information[Classified]

Discovery Production Bates#00498726- 00498769 (44 pages),
including DIA intormation[Classified]
2-Aug-12 Discovery ProductionBates#00498774 -00498870(97 pages),
including DIA information[Classified]
2-Aug-12 Discovery Production Bates# 00498873 00498926 (54 pages),
including DIA information[Classified]
2-Aug-12 Discovery Production Bates#00498929- 00498964 (36 pages),
including DIA information[Classified]
2-Aug-12 Discovery Production Bates#00498966 -00498997 (32 pages),
including DIA information[Classified]
3-Aug-12 Discovery ProductionBates#00505061 - 00505183 (123 pages),
including Damage assessments and CID information[Classified]
3-Aug-12 Discovery Production Bates# 00505184-00505204 (21 pages),
including CID information and various OCA documents [Unclassified]
3-Aug-12 Discovery Production Classified digital evidence[Classified with
Special Control Measures]
3-Aug-12 Discovery ProductionNSAdocuments[Classified with Special Control
Measures]
6 A u g l 2 Discovery Production Bates#00505205 - 00505256(52 pages),
including damage assessments and enemy information[Classified]
7-Aug-12 Discovery Production Bates# 00505257 - 00505257 (1 pages),
including Intelink attestation [Unclassified]
7-Aug-12 Discovery Production Bates# 00505258 - 00505808 (551 pages),
including FBI information and variation ofcharged documents
[Classified]
lOAug-12 Discovery Production Bates# 00505809 00506675 (867 pages),
including DIA intormation[Classified]
14-Aug-12 Discovery Production Bates#00506676 00506684 (9 pages),
including Onantico information [Unclassified]
14-Aug-12 Discovery Production Bates# 00508691 00508934 (244 pages).

32708

including (quantico information [Unclassified]
16-Augl2 Discovery Production Bates#00506685 00508690(2006 pages),
including USCYBERCOM information[Classified]
16-Aug-12 Discovery Production Bates#00509516- 00511906 (2391 pages),
including USCYBERCOM information available for inspection with
prosecution [Classified with Special Control Measures]
21Augl2 Discovery ProductionBates#00508941 00509515 (575 pages),
including DIA information[Classified]
23-Aug-12

Discovery Production NCIX information available for inspection at
ODNIH^ [Classified with Special Control Measures]
27-Aug-12 Article 39(a)session began
27-Aug-12

Discovery Production Bates#00511907 - 00514453 (2547 pages),
including (quantico emails [Unclassified]

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
[Classified with Special Control Measures]
Discovery Production Bates# 00519353 00523672 (1286 pages),
including DOS intormation[Classified]

14Sepl2
14-Sepl2

Discovery Production DoS information[Classified with Special
Control Measures]

15Sepl2

Discovery Production Bates#00514454 00514497(44 pages),
including DUS information [Unclassified]
DiscoveryProductionBates# 00514498 00514498 (1 pages),
including DUSinformation[Classified]

15-Sep-12
19-Sep-12

Discovery Production Bates#00514499 - 00514500(2 pages),
including DOE information [Unclassified]

19-Sepl2

Discovery Production Bates# 00514899 -00515842 (944 pages),
including DIA and CIA information[Classified]
Discovery Production Bates#00515843 - 00519167 (3325 pages),
including Ot^^t^tico emails [Unclassified]

19Sepl2
20Sepl2

Discovery Production Bates# 00519168 00519352 (185 pages),
including FBI information[Classified]

20-Sep-12

Discovery Production Bates#00519353 00523672 (1286 pages),
including DOS information[Classified],which was previously made
available for inspection onl4Sepl2
Discovery Production Bates#00509516 - 00511906 (2391 pages),
including USCYBERCOM previously made available for inspection on
16Augl2

28-Sep-12

32709

28Sepl2

Discovery Production Bates#00514501 00514898 (398 pages),
including DIA and ODNI information previously made available tor
inspection on 14Sepl2

ASFIDENFEIN
MAJ,JA
TrialCounsel

DAVID EDWARD COOMBS
Civilian Defense Counsel

32710

Classification Review of Charged Documents

Prior Classification Reviews
1.

What does a classification review entail7

2.

How many classification reviews did your agency do in:
a. 20107
b. 20117
c. 20127 (not including the classification review in this case)

3.

How many documents were reviewed in each case?

4.

How many people worked on each review?

5.

When was each review begun? Completed?

6.

How many man hours were spent on each review?

Communication Between OCA and Trial Counsel
7.

Did [your agency] personally speak to any ofthe trial counsel in this case?

8.

If yes, how many times?

9.

If yes, when?

10.

Did [your agency] personally have any written communications with the trial counsel in
this case?

11.

If yes, how many times?

12.

Ifyes, when? Please provide documentation.

Initial Communications
13.

When did trial counsel in this case first approach [ ] your organization about a
classification review in the case of United States v. Manning?

14.

How did trial counsel first approach [your agency]? (e.g. email, phone, meeting)

15.

What did the trial counsel ask [your agency] to do or tell you at this first encounter?

16.

When did trial counsel first ask [your agency] to complete a classification review?

First Request for Classification Review

I

APPE? I AT[[ E;E-:;3rr 314
PAEE r..z/E...:ENCED:
PAUE
CE
PAC...

32711

17.

How did trial counsel first ask [your agency] to completeaclassification review? I f a
written request, please provide documentation.

18.

What did trial counsel ask [your agency]to do?

19.

Concerning this first request, did trial counsel give [your agency]asuspense date for
completing the classification review process?

20.

If yes,what was that date?

2L

Ifno,
a. Did [yonr agency] requestasuspense date?
b. Did [your agencyjprovide an approximate time line on how long [your agency]
thought the process would take?
c. Did trial counsel ask for an approximate time line on how long [your agency]thought
the process would take?
d. Was there any discussion oftiming? If yes,what did it entail?
e. Did the trial counsel mention the issue of speedy trial? Ifso, how?

22.

What was the date on which [your agency] began the process of completinga
classification review?

23.

What[was] [your agencyjtold by trial counsel about the role of the classification review
in the legal proceedings?

24.

Did trial counsel ever tell [your agencyjto take [itsjtime with the classification review
because they were not ready to proceed with the Article 32?

Legal Counsel tor OCA
25.

Was legal counsel for your Agency involved in any aspect ofthe classification review
process?

26.

Ifso,
a. Explain how.
b. Did legal counsel ever mention the issue oftiming or speedy trial?

Logistics ofClassification Review For Charged Documents
27.

How many charged documents[was] [your agencyjasked to review as part of the
classificationreviewprocessfbr^^^^^^i^^^^^.^v.^^^^^^^^?

(Include only those

32712

documents that you reviewed and reterenced in your final report; do not include any
documents that you may have reviewed for other purposes).
28.

Who specifically worked on the classification review? Please providealist ofnames and
their respective positions, and the time period that they were asked to work on the
classification review.

29.

How did [your agency] choose who would work on the classification review?

30.

Did any ofthe people who [your agency] selected to work on the classification review
need to get clearances to work on the review?

31.

If so, how long did this take?

32.

If[theOCA] delegated any part ofthe classification review to others,what did [the OCA]
tell [its] delegates about the timing ofthe classification review and when it needed to be
completed?

33.

[Does the OCA]have any email or written documentation regarding the instructions [the
OCAjgave to [its]delegates about the timing of the classification reviews? Ifyes, please
provide.

34.

Did [thejdelegates provide [the OCA]with daily updates on their progress? Ifso, how
did they provide these daily reports? Ifwritten, please provide documentation.

35.

Did [thejdelegates provide [the OCA] with weekly updates on their progress? Ifso, how
did they provide these weekly reports? Ifwritten, please provide documentation.

36.

Did [the]delegates provide [the OCA] with monthly updates on their progress? Ifso,
how did they provide these monthly reports? Ifwritten, please provide documentation.

37.

If[the OCA] delegatedaportion ofthe review to others, list all the ways that[the OCA]
kept [himself^erseltj informed on what was being done for the classification review
process.

38.

What portion of each of the delegates'job was devoted to this classification review?(e.g.
30^,50^). Please list for each person involved.

39.

Did [the OCA or delegatesjwork on the classification review every day until the time the
classification review was submitted to the trial counsel?

40.

Did [the OCA or delegates]work on weekends? If so,which weekends?

41.

Did [the OCA or delegatesjwork on holidays? If so,which holidays?

32713

42.

On average, how many hours per week in total did [the OCA or delegates]work on the
classification review?

43.

Do [the OCA or delegates]have timesheets tor who worked on the classification reviews
and tor how long?

44.

How many total hours did [the OCA or delegates]take to complete the classification
review?

45.

Specifically:
a

TheOCA:

b. []Delegates(specity by person):
46.

Once you had completed your review,how long did it take [the OCA or delegatesjto
prepare the report tor submission to trial counsel?

Trial Counsel Inquiries On StatusofClassification Review for Charged Documents
47.

Did trial counsel ask tor updates on where [your agency] [was] in the process of
completing the classification review? (Note: this question does not ask whether trial
counsel made further requests, but rather whether they made status inquiries)
a. If so, how and when did they ask?
b. If in written form(e.g. emaiL letter, memo), please provide documentation.

48.

Did trial counsel ever ask [your agency] how much longer the process would take?
a. If so, how and when did they ask?
b. I f i n written form(e.g. emaiL letter, memo), please provide documentation.

49.

Did trial counsel ever ask [your agency] what specifically was taking so long?
a. If so, how and when did they ask?
b. If in written tbrm(e.g. emaiL letter, memo), please provide documentation.

50.

Did trial counsel ask how many people were working on the classification review?
a. If so, how and when did they ask?
b. I f i n written fbrm(e.g. emaiL letter, memo),please provide documentation.

51.

Did trial counsel ask how much time [your agency] [was] devoting to the classification
review process?
a. If so, how and when did they ask?
b. If in written torm(e.g. emaiL letter, memo), please provide documentation.

32714

18March2011Memo
52.

On18March 2011,the [trial counsel] sent youamemorandum asking [your agencyjto
^^finalize" your classification review. As ofl8March 2011,how long had [your agency]
been working on your classification review?

53.

If18March2011was the date [your agency] started your classification review,did [your
agency] question the trial counsel why they were asking [your agencyjto^^finalize" your
review? Ifso, how? I f i n writing, please provide documentation.

54.

In thel8March2011memorandum, the trial counsel provides [your agency]witha
suspense date of31March 2011. Did [your agency] ever communicate with the trial
counsel specifically about the suspense date?

55.

If [your agency]did communicate with the trial counsel specifically about the suspense
date,what did [your agencyjsay? What did the trial counsel say?

56.

If [your agency] did communicate with the trial counsel specifically about the suspense
date, how did this communication take place? I f i n writing, please provide
documentation.

57.

If [your agencyjdelegated some or part of the classification review,what did [your
agency] tell your delegates about the3IMarch20Ilsuspense date?

58.

Based on dates the trial counsel has provided, [your agency] did not meet the suspense
date. Is this true?

59.

Did [your agency] communicateareason for not meeting the suspense date to trial
counsel?

60.

Did trial counsel ever contact [your agency] to ask why [your agency] did not meet the
suspense date?

In trial counsel's18March2011memorandum to [your agency],trial counsel writes the
following:

^^Under ArticlelO, UCMJ,when an accused is in pretrial confinement, the United States is
required to use ^treasonable diligence" to continue forward motion on resolving criminal
cases See 10USC^810TheonlyremedyforanArticle10violationisdismissal of

32715

the charges with prejudice. Additionally,the United States must ensure it does not
violate the accused'sSixth Amendment right toaspeedy trial. SeeBarkerv.Wingo,407
U.S.414(1972). All existing and future delays by your department could severely hinder
the prosecution."

61.

Did [your agency] read this at the time [your agency] received it?

62.

What did [your agency] understand this to mean?

63.

Did [your agency] communicate this specific portion ofthe memorandum to [its]
delegates?

64.

If so,what did [your agency]tell them?

65.

Did [your agency] ever communicate with trial counsel specifically about this portion of
the memorandum?

66.

If so,what did the communication involve?

67.

If so, how did the communication take place? Ifthe communication was written, please
provide documentation.

Subsequent Memorandums From Govemment
68.

Other than the18March2011memorandum, did the trial counsel provide [your
agency]with further memoranda asking [your agency] to complete the classification
review?

69.

If yes, please list the dates [your agency]received the follow-up memoranda.

70.

What was [your agency's]view of why the trial counsel was sending [your agencyjthese
further memoranda?

71.

Was thereasuspense date on the further memoranda? Please specify yes^no for each
memorandum you received?

72.

What was the suspense date for each memorandum?

73.

Did [your agency] communicate the suspense dates to [its] delegates? Ifso, how? I f i n
writing, please provide written documentation.

74.

Did [your agency] meet the suspense dates? Explain for each subsequent memorandum.

75.

If [your agency] did not meet the suspense date, did [your agency] communicate with the
trial counsel about [your agency'sjfailure to meet the suspense dates?

32716

a. What did the communication entail?
b. Please provide documentary evidence ifthis communication was in writing.
76.

Did these memoranda include reference to ^^SpeedyTrial"?

77.

If yes, did [your agency] communicate with the trial counsel specifically about the
reference to speedy trial in the memoranda?

Convening Authority
78.

[Was] [your agency] aware that the trial counsel was requesting delays in the proceedings
based on the classification review process being incomplete?

79.

Did [your agency] ever prepareamemo or any document tor the trial counsel to provide
to the Convening Authority explaining the progress made on the classification review? If
so, please provide this document or memo.

80.

Did [your agency] ever receive any communication from the Convening Anthority about
the classification review?

Completion of Classification Review
81.

What was the date that [your agency] completed your classification review?

82.

How many pages was [your agency's]review?

83.

What was the date [your agency] began producing the written report?

84.

What was the date [your agencyjcompleted the written report?

85.

What was the date that [your agencyjprovided your completed classification report to
trial counsel?

86.

Alter completing the report, did trial counsel require [your agency's]consent to disclose
the classification review to the Defense?

87.

If so, when did trial counsel request this consent? When was the consent provided?

Discovery ofclassified Forensic Evidence and Other Classified Information
^ A l l of these questions pertain to discovery of classified forensic evidence and other classified
information requested prior to the Article 32 hearing in December 2011

32717

88.

When was [your agency] asked to approve the disclost^e ofclassified inlormation to the
defense? Ifmultiple dates, provide each date.

89.

How was [your agency] asked to review and approve the disclosure of classified tbrensic
evidence and other classified information? I f i n writing, please provide documentation.

90.

What specifically was [your agency] asked to do?

91.

Did the OCA personally conduct the review ofclassified forensic evidence and other
classified information tor approval to disclose to the detense?

92.

Ifnot,whodid [your agency] delegate the review to? Please provide names and position.

93.

Was thereasuspense date provided by trial counsel?

94.

Ifyes,whatwasit?

95.

Ifno,did you ask about the timing ofdiscovery ofclassified forensic evidence and other
classifiedinformation?

96.

What was the date [your agency] started the approval process for discovery ofclassified
information?

97.

What was the date [your agency] completed the approval process for discovery of
classified inlormation?

98.

If[the OCA] delegated any part ofthe task, list all the ways that [the OCAjmonitored the
progress ofhis^er delegates in their review ofclassified information for approval to
disclose to the detense?

99.

How many documents or piecesof digital evidence did [your agency] review and provide
approval to disclose?

100.

How many pages or gigabytes did these documents amount to?

101.

Howmany total manpower hours did [your agency] spend on reviewing the computer
forensics and other classified evidence for approval to disclose to the defense?

102.

Did [youragencyjprepareareport?

103.

If so,what is the dateofthe report? When did [your agency]provide it to trial counsel?

104.

Ifnot, how did [your agency] communicate the decision to approve the disclosure of
classified forensic evidence and other classified inlormation to trial counsel?

105.

On what day did [your agency] consent to disclosure ofthe computer forensic evidence
and other classified information to the Defense?

32718

106.

What percentage of your agency'stime(or the time of your delegates)was devoted to
completing this task?

107.

Did trial counsel intbrm you that your consent to disclose classified forensic evidence to
the defense was necessary to complete prior to the Article 32 hearing?

108.

WhaL if anything, did they tell you about why [your agency]was reviewing classified
inlbrmation in order to approve disclosureofthat information to the defense?

109.

Did trial counsel ever ask [your agency] tor updates on the status of yonr review? Ifyes,
please provide specific dates.

Department ofState S^eei^e
110.

Did [the Department]have any involvement in selecting or opining on the charged
documents?

All the following questions assume that the answer is ^^yes":
a. What did the trial counsel ask [the Departmentjto do?
b. When did trial counsel ask[the Department] to do this?
c. Did trial counsel give [the Departmentjasuspense date?
d. Ifnot,did [the Department] ask forasuspense date?
e. When did [the Department] complete whatever task the trial counsel asked [the
Department]todo?
f. How many total manpower honrs were devoted to completing this task?

ArmvG-2S^eeifie
111.

Did you have any involvement in selecting or opining on the charged documents?

All the following questions assume that the answer is ^^yes":
a. What did the trial counsel ask [DA G2] to do?
b. When did trial counsel ask [DA G2] to do this?
c. Did trial counsel give [DA G2]asuspense date?
d. Ifnot,did [DA G2] ask forasuspense date?
e. When did [DA G2] complete whatevertask the trial counsel asked [DA G2]to do?

32719

f. How many total manpower hours were devoted to completing this task?

10

32720

UNITED STATESOF AMERICA

)

^

)
)

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

)
)
)
)
)
)

Scheduling Order

^November 2012

1. The Court is currently scheduling Article 39(a)sessions with the following default schedule at
the request ofthe parties: two weeks tor parties to file motions; two weeks for parties to file
responses; five days for parties to file replies; and one week for the Court to review all pleadings
before the start ofthe motions hearing. The time for filing replies was added afier the first Article
39(a)sessiononl5 16March2012because theCourt received reply briefs the day before that
session, the parties desire to continue to file replies, and the Court requires time to consider them.
2. Scheduling dates and suspense dates are set forth below. This schedule was coordinated with
the parties. The trial schedule will be reviewed and updated as necessary at each scheduled
Article 39(a)session.
a. Immediate Action (21 February2012-16Mareh 2012^
b. Legal Motions,e^clndingEvidentiary Issues (29 March 2012-26 A^ril 2012)
c. Le^alMotionsdO May 2012^June 2012^
d. Interim Pretrial Motions (2 June 2012 2^ June 2012)
e. Pretrial Motions (7 June 2012 20 July 2012^
f. PretrialMotions (20 July 2012^0Au^ust2012^
g. Pretrial Motions (24 August 2012 l^October 2012)
h. Pretrial Motions (26 Sentember 2012 2 Noyember 2012)
i.

Pretrial Motions(190ctober 2012 2 December 2012^
(A)
(B)
(C)
(D)

Filing: 19October2012
Response: 2November2012
Reply:9November2012
Article 39(a): 27November2012(^1300)-2 December 2012

(1) DefenseArtielel^ Motion (Article ^9(a)only)
(2)

Specifications for Plea and Maximum Punishments Litigation
^

^^^^^^^EB^^^^^^
^BE^^E^EE^l^NCEE
P^^^^E
^^1^^ ^E^B^^B

32721

(A) Filing: 5November2012
(B) Response: 16November2012
(C) Reply: 23 November 2012
(3) Government Response to Defense Interrogatories to Government Counsel for
SpeedyTrial
(A) Filing: 16November2012
(4) Defense MRE ^0^(h)Notification for Government witnesses
(A) Date: 16November2012
(5) Government Notification ofDeeision on Defense Conditional Plea
(A)Date: 16November2012
(6) Government Response to Defense Interrogatories to Original Classification
Authorities for SpeedyTrial
(A) Filing: 5December2012

^. Pretrial Motions(16Noyember 2012-14 December 2012^
(A)
(B)
(C)
(D)

Filing: 16November2012
Response: 30 November 2012
Reply:5December2012
Article 39(a): 1014December2012

(1) DefMotionforSpeedyTrial,includingArticlelO(PART2)(Artiele^9(a)only)
(2) Defense Supplemental witness List for Sentencing
(A)Filing: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 forJudicial Notice
(7) Pre-OnalificationofExperts
' 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.

32722

(8) Motions ^^^^B^^^^ (Supplemental, Including any Classified Information)(if
necessary)
(9) Providence Inquiry^
(10) Disclosure ofRCM 914 Material (based on Supplemental Govt witness List and
Defense^itnessList)
(A)Date: 5December2012
(11) Discussion ofStoring all AEs inaCentralized Location
(A) Date: 10December2012

1^. Pretrial Motions (7 December 2012 l^January 201^^
(A)
(B)
(C)
(D)

Filing:21 December 2012
Response: 4.1anuary2013
Reply:9January2013
Article 39(a): 1418January2013

(1) Supplemental Government witness List (if necessary)
(A) Date: 14December2012
(2) Production of Compelled Discovery from Defense
(A)Date: 14December2012
(3) Grunden Hearing for Government Classified Information
(A) Government Notice: 4January2013
1. Pretrial Motions (2^ 29 January 201^)
(1) Grunden Hearing for Defense Classified Information
(2) Litigation Concerning MRE ^0^(h)and MRE ^O^(i) (if not previously resolved)
(A) Filing: llJanuary2013
(B) Response: 18January2013
(3) Completion ofSecurityClearanceChecl^s for ^itnesses(as necessary)
m.Trial by MJAlone(4 February 201^ l^March201^)
Trial:4February2013-15March2013
^ The Oefense must also mal^e final forum selection. The prosecution requested the panel be notified no less than
sixt^da^s prior to trial, in order to coordinate for extended special dut^ and travel.

32723

So Ordered this 8th day ofNovember 2012.

DENISERLIND
COL,JA
ChiefJudge, 4^ Judicial Circuit

32724

IN TIIE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING:

MOTION TO REDACT OR
DELETE CLASSIFIED

EVIDENCE FROM EVIDENCE
MANNING, Bradley E., PFC MADE AVAILABLE TO THE
U.S. Army. ACCUSED
Headquarters and Headquarters Company,
U.S. Army Garrison, Joint Base Myer- DATED: 8 November 2012
Henderson Hall, Fort Myer, VA 22211

On 26 October 20l2, the Govermnent moved the Court pursuant to MRE 505(g)(2) in a
classi?ed ?ling to authorize redactions and deletions from evidence the Government has made available
to the Defense and to issue an additional protective order precluding the Defense or its forensic experts
from accessing the redacted or deleted information. The Government posits that the redacted or deleted
information is not relevant, not favorable, not material to guilt or punishment, and not relevant and
necessary for production under RCM 703 The Government further profcrs that the redacted or deleted
information will not be used by the Government during any portion of the trial. 'I'he Government intends
to limit Defense access to the redacted or deleted information by a software program restricting access by
a method called ?privileging?. 'l?he Defense requests that the Court review the proposed redactions and
deleted information using the factors the Defense has requested the Court to consider in its previous MRE
50S(g) responses. The Court considered those factors in arriving at this ruling.

At issue in this motion is data and metadata. Earlier on 8 November 2012, the Court issued the
proposed protective order. The Defense and its forensic experts may review the information and the
metadata under the parameters of the protective order. A?er the review, the Defense may re-raise any
issues regarding the metadata with the Court.

With respect to the redacted and deleted infonnation, the Court has examined all of the original
and redacted or deleted information and has held two in camera ex parte Article 39(a) sessions on 8
November 2012 with the Government in an appropriate place for classi?ed proceedings to address
concerns of the Court with respect to that data. The proceedings were recorded. In accordance with the
guidance issued by the Court at the second in camera at parre article 39(3) session, the Court ?nds that
the redacted and deleted information is not relevant to this case. The Court further finds that disclosure of
this classi?ed irrelevant information risks exposing intelligence activities, sources, and methods and could
reasonably cause damage to the national security of the United States.

No information or evidence not disclosed to the Defense by the Government will be used by the
Government or by any Government witness during any portion of the trial. This includes rebuttal and rule
of completeness.

The redacted and deleted substitution meets the Government?s discovery obligations under Brady
and RCM 70l(a)(6) to disclose evidence tending to reasonably negate the guilt of the accused to an
offense charged, reduce the degree of guilt to an offense charged, or reduce the punislunent.

mg
ll

32725

The irrelevant classi?ed information that was redacted or deleted and not disclosed to the Defense
is not material to the preparation of the defense or relevant and necessary for production under RCM
703(f).

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

RULING: The classi?ed motion by the Government to voluntarily provide limited disclosure under
MRE 50S(g)(2) is GRANTED in accordance with the guidance of the Court.

2/

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

So Ordered this day of November 20 I2.

32726

UNITED STATES
DEFENSE WITNESS LIST FOR
SENTENCING IN EVENT OF A
SENTENCING ONLY CASE

V.

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: l2 November 20] 2



In the event that there is not a contested portion of this case, the Defense requests the
attendance of each of the sentencing witnesses identi?ed in its 15 October 20l2 filing.
Additionally, the Defense requests the following witnesses originally identified only for
the merits phase of the trial:

I) CPT Steven J. Lim, First Army Division East, G-2, 4550 Llewelyn Drive, Fort
Meade. Maryland 2075I will
also testify that the 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 of January 0 in order to allow
the to better understand the Iraqi political situation. CPT Lim will testify
that the comments in the press that stated that the release of the 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 CIDNE database
(Iraq and Afghanistan) were not sources. CPT 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 those names were likely spelled phonetically and did not contain
the full name of the individual. PT Lim will testify that the CIDNE database is
basically a big historical document and something that was used to create work
products. CPT 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
or CIDNE. CPT Lim will testify that he would recommend saving to laptop or
computer disk. CPT Lim will testify that he would make this recommendation just in
case the SIPRNET went down or the shared drive went down or a file 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. CPT
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
significant activity reports. CPT Lim will also testify that there were no stated
restrictions on what an analyst could look at on SIPRNET. PT 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

382
P,
PAGE OF





2)

3)

32727

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, PT 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, 29311 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
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 SIPRN ET or from reading information that did not concern Iraq. CPT Fulton will
testify that the whole point of PFC Manning?sjob was fusion. CPT Fulton will testify
that an all source analyst needs to consider and evaluate ?all sources? to adequately
perform their job.

CPT Thomas M. Chere ko. 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
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 certi?cation and accreditation inspection during its tour, contrary to the
guidance in MNF-I Directives. CPT Cherepko will also testify that he knew about
personal software being loaded on the SIPRN ET and he would remove the software
when he came across it. CPT 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. PT Cherepko 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 CPT 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



4)

5)

6)



32728

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.

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 Iraqis 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 information was in Arabic. SGT Sadtler will
testify that the translation of the Arabic indicated that the arrested individuals were
simply trying to expose corruption 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 mainjob was to document SIGACT
reports for the battalion. SGT Sadtler will testify about the process for the
development of a SIGACT and how the infonnation went from the unit to ultimately
within the CIDNE database.

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 Specifications 5 and 7 of Charge ll. Mr. Ilall will testify that
the vast majority ofthe information within the SIGACTS from Specifications 5 and 7
of Charge ll was already in the public realm prior to PFC Manning?s alleged
misconduct. Mr. Hall will explain why the are basically a historical
document of little intelligence value to the enemy. Mr. Hall will testify about how
are used by intelligence to create their work product. Mr. Hall
will also testify that videos charged in Specifications 2 and I I of Charge II are similar
to countless such videos currently available on the intemet. Finally, Mr. Hall will
testify that none of the charged documents in Specifications 3, l0, and 15 are the type
that would cause any real damage to national security.

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 fonner Chief Prosecutor, Col.
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

7)



32729

capture information pertaining to a speci?c detainee prepared by the Joint
lntelligence 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 U.S. Southern Commander in order to provide the command and other
governmental officials general infonnation about a speci?c detainee, and were not
viewed as being particularly sensitive information. 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.

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 DCSG-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 information and
sometimes you couldn?t recover infonnation. Mr. Milliman will testify that if a
soldier wanted to add software to their DCGS-A machine, they were supposed to ask
him for permission. 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 Chat on the DCGS-A machines. Mr. Milliman will testify that
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 part of his job, he noticed that some soldiers had placed programs such as
executable ?les on their desktop of the DCGS-A machines without authorization.

Mr. Milliman will testify that he knew of a couple of of?cers who always wanted to
add the latest version of something and they would take it upon themselves to install

8)

9)

32730

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 DCGS-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.

Mr. Adrian Lamo. Carmichael, CA 95608,-. Mr. Lamo will testify
that he had an instant messenger chat conversation with PFC Manning between 2|
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 infonnation
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."

Mr. Zachary Antolak, 7l40. 166"? Street Apartment 303, Tinley Park. IL 60477,

8 Mr. Antolak will discuss an instant messenger
chat conversation that he had with PFC Manning over the course of six months in
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 information to the
officers above him and to his commanders. Mr. Antolak will testify that PFC
Manning was hoping that the infonnation he provided to his officers 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. g?t 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



32731

male. female, black, white. gay, straight, Christian, [J]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 thejob, [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.

I0) Mr. Charles Ganiel, Command SSO, HQ ATEC, Aberdeen Proving Ground,
Maryland 2i9o1 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 Speci?cation 13 of
Charge ll. Mr. Ganiel will testify that the vast majority of the infonnation within the
charged diplomatic cables from Specification I3 of Charge II was already in the
public realm prior to PFC Manning's alleged misconduct.

1l)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
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
governments 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 ofthe Networked Fourth Estate.? See 46 Harv.C.R.l.. L. Rev. 311. 201]. As
part of that article, Professor Benkler reviewed the publicly available copy of the
document charged in Speci?cation 15 of Charge 11. Professor Benk|er?s article cites
and extensively references the document charged in Speci?cation 15 of Charge 11.
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 Government's
overreaction resulted in WikiLeaks being viewed as a security threat as opposed to a
legitimate journalistic endeavor. Finally, Professor Benkler will testify that
WikiLeaks is in fact a journalistic endeavor, no different for legally pertinent
purposes than the New York Times, the Washington Post, or a wide range of smaller
journalistic publications.



32732

12) Mr. Daniel Cindrich, Intelligence and
Security Analyst. Information Dominance Warfare Quali?ed Center for
Army Lessons Learned (CALL), U.S. Army Combined Arms 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. Cindrich 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 infonnation publicly disclosed in this case.

Respectfully submitted,

COOMBS
Civilian Defense Counsel

32733

UNITED STATES OF AMERICA
v.
Manning, BradleyE.
PFCU.S.Army,
HHC, U.S. Army Garrison,
Joint Base Myer Henderson Hall
FortMyer, Virginia 22211

Prosecution Request
for Leave until 2^ November 2012
to File Government Motion to Compel

14 November 2012

1. The United states requests leave of the Court until 28 November 2012to file any Govemment Motion
to Compel Discovery The current deadline forthe Govemment Motion to Compel Discovery (if any) is
16Novemher2012. ^eeAE3^5. The deadline for the defense to disclose reciprocal discovery was 15
October 2012. ^eeAF286. The defense disclosed24,544 pages of reciprocal discovery on 15 October
2012 and an additionall97 pages on 30 October 2012. See Enclosure.
2. The United States is in the process of completingareview of the almost 25,000 pages of reciprocal
discovery,however,requests an additional two weeks to complete its review given the volume of the
disclosure. Currently,the United States does not anticipate needing to fileaMotion to Compel,however,
would like the opportunity to completeathorough review ofthe reciprocal discovery before making the
final determination.
3. Tomaintain the current litigation schedule, the United States proposesafilingdeadlineof28
November 2012andaresponsedeadlineof5Decemher 2012. The United States will not fileareply.
4. This request will not necessitateadelay in the proceedings and, if the Court approves the adjusted
calendar deadlines,will not necessitateadelay in any potential litigation regarding the reciprocal
discovery. There will be no preiudice to the defense.

ANGELMOVERGAARD
CPT,JA
AssistantTrial Counsel
Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David Coombs, Civilian
Defense Counsel via electronic mail, onl4November 2012.

ANGEL M. OVERGAARD
CPT, JA
Assistant Trial Counsel
End
3 Defense Emails, dated 14 and 30 October 2012

APPELLATE EXHIBIT M
PAGE REFERENCED:
PAGE
OF
PAGES

32734

UNITED STATESOF AMERICA
V.

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

Prosecution Request
for Leave until 2^ November 2012
to File Government Motion to Compel
Enclosure
14 November 2012

32735

From:
To:
Cc:

Subject:
Date:

David Coombs
Fein. Ashden MAJ USARMY MDW mS1
Hurley, Thomas F MAJ USARMY mSk Tooman. Joshua J CPT USARMY (US^: Morrow. JoDean Ooel I I I CPT
USARMY IJSAMPW fIJS); Overgaard. Angel M CPT USARMY (USl: Whvte. J Hunter CPT USARMY fUSk j m
Elten. Alexander S fAlec^ CPT USARMY fUS): Ford. Arthur D Jr CW2 USARMY fUSl
Defense Reciprocal Discovery
Sunday, October 14, 2012 5:13:47 PM

Ashden,
Today the Defense sent to OSJA-MDW via FEDEX (Tracking # 8010 9805 3321) the
following reciprocal discovery: (BATES # 000001-024544).
These documents are those that are responsive to the Government's discovery
request filed on 24 March 2012. The Defense understands that under RCM
701(d) the Government's reciprocal discovery request is a continuing
request. Should the Defense identify additional reciprocal discovery, we
will either immediately provide the identified information through BATES
numbered discovery or coordinate a mutually convenient time for inspection
by the Government, prior to trial, at the Fort Meade Trail Defense Service
Office.
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
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com
***Confidentiality Notice: This transmission, including attachments, may
contain confidential attorney-client information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying
or use of this information may be unlawful and is prohibited.***

32736

From:
To:
Cc:

Subject:
Date:
Attachments:

David Coombs
Fein. Ashden MAJ USARMY MDW fUSl
Hurlev. Thomas F MAJ USARMY fUSk Tooman. Joshua J CPT USARMY (US): Morrow. JoDean (Joel III CPT
USARMY USAMDW fUSk Overgaard. Angel M CPT USARMY (US): Whvte. J Hunter CPT USARMY (US): sm
Elten. Alexander S fAlecl CPT USARMY (US,): Ford. Arthur D Jr CW2 USARMY fUSl
Additional Defense Reciprocal Discovery
Tuesday, October 30, 2012 10:25:44 AM
024545-024616.Ddf

Ashden,
I hope you successfully weathered the storm. I will be sending two separate
emails with additional defense reciprocal discovery. Let me know if you
have any questions.
Best,
David
David E. Coombs, Esq.
Law Office of David E. Coombs
I I South Angell Street, #317
Providence, RI 02906
Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com

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

32737

From:
To:
Cc:

Subject:
Date:
Attachments:

David Coombs
Fein. Ashden MAJ USARMY MDW fUS)
Hurlev. TJiomas F MAJ USARMY (US): Tooman. Joshua J CPT USARMY fUSV Morrow. JoDean Uoel III CPT
USARMY USAMPW
Overgaard. Angel M CPT USARMY fUS): Whvte, J Hunter CPT USARMY gjSV. )m
Elten, Alexander S fAlecl CPT USARMY fUS): Ford. Arthur D Jr CW2 USARMY fUS)
Additional Defense Reciprocal Discovery
Tuesday, October 30, 2012 10:28:07 AM
024617-024618.Ddf
024619-024638.Ddf
024639-024719.Ddf
024720- 024720.Ddf
024721- 024735.odf
024736-024741.Ddf

Ashden,
Here is the second email of additional reciprocal discovery.
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
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com

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

32738

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 28 November 2012
to File Government Motion
To Compel Discovery

)
)

) 19 November 2012

On 15 November 2012 the Government requested leave of the Court until 28 November 2012 to file a
Motion to Compel Discovery and to extend the deadline for the Defense response to 5 December 2012. If
the motion is granted, the Govemment will not file a reply.
The deadlines on the current court calendar are:
(1) Govemment Motion to Compel, 16 November 2012;
(2) Defense response, 30 November 2012; and
(3) Govemment reply, 5 December 2012.
Defense does not oppose.
The Government request for leave of Court until 28 November 2012 with response due on 5 December
2012 is GRANTED.

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

A m i ' ' ":EXHi:3iT
i
REin .FENCED:
PAGE
OF
r

32739

IN THE UNITED STATES ARMY

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

DATED: 16 November 2012

FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE MOTION FOR
v. JUDICIAL NOTICE OF
H.R. 553 AND CONGRESSIONAL
MANNING, Bradley PFC HEARINGS DISCUSSING
us. Army, CLASSIFICATION




RELIEF SOUGHT

1. PFC Bradley E. Manning, by and through counsel, moves this court, pursuant to Military
Rules of Evidence (M.R.E.) 201, 201A, and 803(8) to takejudicial notice 553, the
?Reducing Over-Classification Act,? and transcripts of House Committee meetings on the
Espionage Act (16 December 2010) and Over-Classi?cation (22 March, 26 April, and 28 June,
2007).

BURDEN OF PERSUASION AND BURDEN OF PROOF

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

FACTS

3. PFC Manning is charged with five specifications of violating a lawful general regulation, one
specification of aiding the enemy, one Specification of disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight specifications of communicating
classi?ed information, ?ve specifications of stealing or knowingly converting Government
property, and two specifications of knowingly exceeding authorized access to a Government
computer, in violation of Articles 92, 104, and 134, Uniform Code of Military Justice (UCMJ)
10 U.S.C. 892, 904, 934 (2010).

4. The Original charges were preferred on 5 July 2010. Those charges were dismissed by the
convening authority on 18 March 2011. The current charges were preferred on 1 March 201 1.
On 16 December through 22 December 201 1, these charges were investigated by an Article 32
Investigating Officer. The charges were referred to a general court-martial on 3 February 2012.

5. On 7 October 2010 President Barack Obama signed .R. 553, also known as the ?Reducing
Over-Classification Act.? See Attachment A.

EXHIBIT Mo
17?
run; or PAUJJ



32740

6. The law, which requires ?the Secretary of Homeland Security to develop a strategy to prevent
the over-classi?cation of homeland security and other information,? included a number of
?ndings. See Attachment B. The law?s ?ndings include:

a. The National Commission on Terrorist Attacks Upon the United States (commonly
known as the 11 Commission?) concluded that security requirements nurture over-
classi?cation and excessive compartmentation of information among agencies. Id.

b. The 9/ 1 Commission and others have observed that the over-classi?cation of
information interferes with accurate, actionable, and timely information sharing, increases
the cost of information security, and needlessly limits stakeholder and public access to
information. Id.

c. Over-classi?cation of information causes considerable confusion regarding what
information may be shared with whom, and negatively affects the dissemination of
information within the Federal Government and with State, local, and tribal entities, and
with the private sector. Id.

7. On 16 December 2010, Thomas Blanton, Director of the National Security Archive at
George Washington University testi?ed before the House?s Committee on the Judiciary during a
hearing on the Espionage Act and the constitutional implications of WikiLeaks. See Attachment
C. Mr. Blanton testi?ed that 50-90% of what is classi?ed is either over-classi?ed or should not
be classi?ed at all. Id. He further testi?ed that over-reaction to leaks is well?documented
throughout American history. Id.

8. Over the course of three days in 2007 (22 March, 26 April, and 28 June) the Subcommittee on
Intelligence, Information Sharing, and Terrorism Risk Assessment of the House Committee on
Homeland Security heard testimony on Over-Classi?cation and Pseudo?Classif1cation. See
Attachment D. The hearings include testimony from a number of public of?cials and experts

discussing the negative impact of over-classi?cation and the problems presented by the practice.
Id.


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

10. In the interest of judicial economy, M.R.E. 201(a) and 201A relieve a proponent from
formally proving certain facts that reasonable persons would not dispute. First, the military

judge may take judicial notice of adjudicative facts ?capable of accurate and ready determination

2

32741

by resort to sources whose accuracy cannot reasonably be questioned.? M.R.E. 201(b)(2). This
category of adj udicative facts includes government records, business records, information in
almanacs, scienti?c facts, and well documented reports. Id. See also, United States v. Spann, 24
M.J. 508 (A.F.C.M.R. 1987). The key requirement forjudicial notice under this category is that
the source relied upon must be reliable. Pursuant to M.R.E. 201A, a militaryjudge, ?may take
judicial notice of domestic law.?

11. Under M.R.E. 20l(d), a military judge must take judicial notice if the proponent presents the
necessary supporting information. In making the determination whether a fact is capable of
beingjudicially noticed, the military judge is not bound by the rules of evidence. 1 STEPHEN A.
SALTZBURG, LEE D. SCHINASI, AND DAVID A.SCHLUETER, MILITARY RULES OF
EVIDENCE MANUAL 201 .02[3] (2003) Additionally, the information relied upon by the
party requesting judicial notice need not be otherwise admissible. Id. The determination of
whether a fact is capable of being judicially noticed is a preliminary question for the military
judge. See M.R.E. 104(a).

12. HR. 553 is appropriate for judicial notice. As a bill that was signed into law by the
President of the United States, it unquestionably quali?es as domestic law as contemplated by
M.R.E. 201A. Because the ?Reducting Over-classi?cation Act? is a domestic law it is
appropriate for judicial notice. M.R.E. 201A. Likewise, the law is relevant on both the merits
and sentencing. Congress found that overclassi?cation results in confusion about what
information can be shared with whom. See Attachment B. This fact would rebut any argument
that PFC Manning had a reason to know that information could be used to the injury of the
United States or to the advantage of a foreign nation simply because a document is classi?ed.
See Amicus Curiae Brief of Pepperdine University School of Law, United States v. Diaz, 2010
WL 519394. Because H.R. 553 makes an element of several Speci?cations less likely it is
relevant on the merits.

13. The law would also be relevant during any pre-sentencing phase of PFC Manning?s trial.
R.C.M. 1001(c) permits an accused to present matters in extenuation and mitigation during such
a phase. These matters would tend to explain the circumstances surrounding the commission of
an offense or tend to lessen the punishment. Id. The acknowledgment by Congress that PFC
Manning was operating in a broken system that limited public access to information would serve
to explain the circumstances surrounding the alleged misconduct. Acknowledgment by Congress
that at least some of the charged documents in this case were not properly classi?ed may tend to
lower PFC Manning?s punishment. As such, H.R. 553 is relevant and should be judicially
noticed.

14. Mr. Thomas Blanton?s testimony before the House Judiciary Committee is proper for
judicial notice because it is a relevant statement for which there is a hearsay exception. This
Court has acknowledged that a ?Congressional record could be admissible under MRE
if relevant.? See Appellate Exhibit 356 at 12. Transcripts of Congressional hearings document
the activities of Congress and are, thus, contemplated by M.R.E. Because Mr.
Blanton testi?ed before Congress and are included in the transcript of the Congressional hearing,
his statements are properly admitted under M.R.E.

32742

15. Hearsay concerns alleviated, Mr. Blanton?s testimony is relevant at both the merits and any
pre-sentencing phase. Mr. Blanton testi?ed in part:

Mr. Chairman, it is a great honor for me, and Judge Gohmert and also to be in the
middle of this extraordinary high?level tutorial in the Espionage Act and the
Constitution. I feel like a grad student again; and it is a joy, actually. I also wanted
to thank you, Mr. Chairman, for resurrecting my graveyard quote, that we have
low fences around vast prairies of government secrets where we really need tall
fences around small graveyards of the real secrets; and that is a core point I want
to come back to today. I really have three points. One of them is the government
always overreacts to leaks, always; and all you have to do is say the phrase
?Watergate plumbers? and you know what I am talking about.

Back then, they were discussing ?rebombing the Brookings Institution on the
chance there might still be a copy of the Pentagon papers in there. Today, you are
having debates on FOX news: Let's do some targeted assassination attempts on
Julian Assange. Well, I have to say G. Gordon Liddy would be right at home, and
both is absurd. And the overreaction the government typically does is not to kill
anybody or to ?rebomb something but to go right to the second major point I
want to make today. They are going to classify more information.

What I am worried about most is the backlash. I mean, in my prepared statement,
I have got multiple examples of all the estimates. and they range from 50 percent
to 90 percent, of what the problem of overclassi?cation really amounts to.
Governor Tom Kean, head of the 9/ 11 Commission, after looking at all of the al
Qaeda intelligence that we gathered before 9/ 1 1, said, you know, 75 percent of
what I saw that was classi?ed should not have been. And the Commission said we
not only needed to do information sharing between the agencies, we had to do
information sharing with the American people, because that is the only way we
can really protect ourselves. What a great lesson that is.

The system is so overwhelmed with the secrets that we can no longer really
protect the real ones and we can?t let out the ones that would actually keep us all
safer.

And I think it is a mistake to try to see this as a balancing test. It is not a balance
between openness and security. The ?ndings of the 9/ 11 Commission were that
more openness would have made us more secure. That is what you do an in open
society to keep yourself safe. You are not safer in the dark. You don?t hide your
vulnerabilities. You expose them and you ?x them. That is how we proceed in
America.

The third point I just want to make about where we are today. We are in the
middle of a that one senior government of?cial I really respect holds all
the clearances, does the audits, pushes back against excessive secrecy, called it
Wikimania. We are in the middle of Wikimania, and it is going to lead to so much





more heat than light. Targeted assassination is only the most extreme case, but
look at all the other proposals we have got on the table and the front burners to try
to push back, to punish WikiLeaks, to push back against speech. See Attachment


He went on to testify:

I have to tell you, I wish every terrorist group in the world would write the U.S.
ambassador in their local town, you know, days or a week before they are about to
launch something, and ask the ambassador, hey, would you help us, you know,
make sure nobody innocent gets hurt? Would you really work with us? We would
be glad to talk to you.

And I understand why the ambassadors didn?t believe them. Because WikiLeaks
said, oh, and, by the way, we will keep anything you say to us con?dential. It is
hard to square with the previous statements of WikiLeaks.

But I wish every terrorist group would get into partnership with Le Monde and El
Pais and the Guardian and the New York Times to assess what the damage might
be, to redact their own documents, to put regulators on the bombs they drop. That
would be a good thing. WikiLeaks is not terrorists. Id.

Like H.R. 553, evidence of overclassi?cation makes it less likely that a document?s classi?cation
marking put PFC Manning on notice that its disclosure could result in injury to the United State
or benefit a foreign nation. M.R.E. 401. As such, Mr. Blanton?s testimony is relevant on the
merits. Likewise, it is relevant during any pre-sentencing phase because it establishes the
circumstances surrounding PFC Manning's alleged misconduct. Evidence of consistent
historical over-reaction to alleged unauthorized disclosures by the Government suggest yet
another overreaction by the Government in PFC Manning?s case. Such evidence would tend to
mitigate PFC Manning?s alleged misconduct and is, thus, relevant. R.C.M. l00l(c).

16. The proffered House of Representatives hearings from 2007 are also admissible and
relevant. This Court has acknowledged that a ?Congressional record could be admissible under
MRE if relevant.? See Appellate Exhibit 356 at 12. Transcripts of Congressional
hearings document the activities of Congress and are, thus, contemplated by M.R.E.
Because the proffered transcript documents the activities of Congress it falls under the hearsay
exception offered by M.R.E.

17. The proffered transcript is relevant on both the merits and during any necessary pre-
sentencing phase. The transcript laid the foundation for the sentiment that Mr. Blanton and H.R.
553 would later echo: a shocking percentage of documents are wrongly classi?ed. Included in
the transcript is testimony from J. William Leonard, Director of Information Security Oversight
Of?ce at the National Archives and Records Administration. Mr. Leonard testi?ed that a review
by his of?ce discovered that classification was clearly done correctly only 64% of the time. See
Attachment at 6. Thus, classification is wrong more than 1/3 of the time. Again, such
evidence rebuts any argument that PFC Manning knew or should have known that a document



could cause injury to the United States or bene?t a foreign nation based solely on the document?s
classi?cation. Because the transcript makes an element of several charged Speci?cations less
likely, it is relevant. M.R.E. 401. Likewise, the transcript is ?lled with evidence that establishes
the circumstances under which PFC Manning was operating at the time of the alleged
misconduct. Evidence that the classi?cation system was broken and its condition had negative
consequences for the nation would tend to shift some of the culpability from PFC Manning on to
the system itself. Because such evidence could tend to lower PFC Manning?s punishment it is
relevant during any necessary pre-sentencing phase.

CONCLUSION

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

Respectfully Su mitted



JOSHUA J. OOMAN
CPT, JA
Defense Counsel



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H . R . 553 ( l l l T H )

H.R. 553 (111th): Reducing Over-Classification Act
111th Congress, 2009-2010
To require the Secretaiy of Homeland Security to develop
a strategy to prevent the over-classification of homeland
securit)' and other infoiTnation and to promote the
sharing of unclassified homeland security and other
information, and for other purposes.
Introduced: Jan 15, 2009
Sponsor:

Rep. Jane Harman [D-CA36]

Status:

Signed by the President

Bill tides and the suniman' above are written by the sponsor.
H.R, stands for House of Representatives bill.

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Jan 15,
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2010

32747

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This bill was enacted after being
signed by the President on October
7, 2010.

TEXT:

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Security and Governmental
Affairs
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OFFICIAL SUMMARY
Tliis summary was written by the Congression.
Service, a nonpartisan arm ofthe Library of Cc
GovTracl< did not write and lias no control ovei
summaries.
10/7/2010-Public Law. (This measure has not
amended since it was passed by the Senate oi
27, 2010. The summary of that version is repe;
Reducing Over-Classification Act Section 4 Amends the Homeland Security Act of 2002 (H
the Secretary of Homeland Security (DHS) to c
Classified Information Advisory Officer to develop and disseminate educational materials and to develop
administer training programs to assist state, local, and tribal governments (including law enforcement ag
private sector entities:
(1) in developing plans and policies to respond to requests related to classified information without comn
information to individuals who lack appropriate security clearances:
(2) regarding the appropriate procedures for challenging classification designations of information receive
personnel of such entities; and
(3) on the means by which such personnel may apply for security clearances.
Directs such Officer to inform the Under Secretary for Intelligence and Analysis on policies and procedur
facilitate the sharing of classified information with such personnel.
Section 5 Amends the National Security Act of 1947 to require the Director of National Intelligence to establish:
(1) guidance to standardize formats for classified and unclassified intelligence products for purposes of f
sharing ofsuch products; and
(2) policies and procedures requiring the increased use, including portion markings, of the classification <
information within one intelligence product.
Amends HSA to:
(1) include among the responsibilities ofthe Secretary relating to intelligence and analysis and infrastruc
to integrate relevant information, analysis, and vulnerability assessments in orderto prepare finished intf
information products in both classified and unclassified formats whenever reasonably expected to be of 1
state, local, or tribal government or a private sector entity; and
(2) require the state, local, and tribal homeland security and law enforcement officers and intelligence an
assigned by the Interagency Threat Assessment and Coordination Group (ITACG) Detail to work in the f

http://www.govtrack.us/congress/bills/i 1 l/hr553

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32749

l^age4of5

Counterterrorlsm Center to make recommendations to the Secretary for the further dissemination of Intel
products that could likely Inform or improve the security of suchagovernment or entity.
Requires the Secretary, in coordination with the Director of the National Conterterrorism Center and the
Advisory Council, to:
(t^oon^pile an annual assessment of ITACG Detail^s performance,including summaries of customer fee^
preparing,disseminating,and requestingthedisseminationofintelligence products intendedforstate,lo
government and private sector entities;
(2) provide sucb assessment to the program manager for the information sharing environment for use in
report on ITACG progress.
Requires such report to include an assessment of whether the ITACG detailees have appropriate access
information as requited
SectionsPermits the President orthe head of an agency with an offlcei^ or employee who is authorized to make 01
derivative classification decisions,in making certain cash incentive awards,to consider such officers or^
consistent and proper classification of information
Requires the inspector general of each such agency, In consultation with the Information Security Oversl
carry out at least two evaluations of that agency or components thereof to:
(1)assess whether applicable classification policies, procedures,rules,and regulations have been adop
and effectively administered; and
^2) identify policies, procedures, rules, regulations, or management practices that may be contributing to
misclassification of material.
Requires each first evaluation to be completed by September 30,201^,and each second evaluation t o t
by September 30, 201^
Requires each inspector general to:
(1) submitareport on each such evaluation to specified congressional committees,the agency head,an
ofthe Information Security Oversight Office; and
(2) coordinate with other inspectors general and with the Information Security Oversight Office to ensure
evaluations followaconsistent methodology that allows for crossagency comparisons.
SectionsDirects the head of each executive agency,in accordance with Executive Order1352^,to require:
(1) annual training for each employee who has original classification authority; and
(2) training at least every two years for employees who perform derivative classification or are responsib
dissemination, preparation, production, receipt, publication, or otherwise communication of classified inf^
Requires such training to:

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(1) educate the employee regarding the guidance established under the National Security Act of1^47 re
formatting offinished intelligence products, the proper use ofclassification markings, and incentives and
related totheproperclassificationofintelligence information; and
(2) serve asaprerequisite for obtaining and maintaining original classification authority or derivatively cl^
Information
Directseachagencyheadtoensurethafthe training isconducted efficiently and in conjunction with any
secunty,intelligence, or othertraining programs to reduce the associated costsand administrative burde

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http://www.govtrack.us/congress/biIls/l 1 l/hi-553

11/15/2012



ATTACHMENT

32752
>,..H.«,K;.„O

* t^ovimuiNT,,—t

•^"""CTO^

H.R. 553

©ne IHundred ^leDenth dongrcss
of the
United States of amtrica
AT T H E SECOND

SESSION

Bfigitn mid held at the City of Washington
the fifth day of January^ two thousand

ou
Tuesday,
and ten

an act
To require the Secretary of Homeland Security to develop a strategy to prevent
the ovcr-ctasEification of homeland security and other information and to promote
the flharing of unclassified homeland security and other information, and for
other purposes,

Be it enacted by the Senate and House of Representatives
the United States of America in Congress assembled,

of

SECTION 1. SHOUT TITLE.

This Act may be cited as the "Reducing Over-Classification
Act".
SEC. 2. FINDINGS.

Congress finds the following:
(1) The National Comn-.ission on Terrorist Attacks Upon
the United States (commonly known as the "9/11 Commission")
concluded that security requirements nurture over-classification
and excessive compartmentation of information among agencies.
C2) The 9/11 Commission and others have observed that
the over-classification of Information interferes with accurate,
actionable, and timely information sharing, increases the cost
of information security, and needlessly limits stakeholder and
public access to information,
(3) Over-classification of information causes considerable
confusion regarding what information may be shared with
whom, and negatively affects the dissemination of infoi-mation
within the Federal Govemment and with State, local, and
tribal entities, and with the private sector.
(4) Over-classification of information is antithetical to the
creation and operation of the information sharing environment
established under section 1016 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (6 U.S.C. 485).
(5) Federal departments or agencies authorized to make
original classification decisions or that perform derivative
classification of information are responsible for developing,
implementing, and administering policies, procedures, and programs that promote compliance with applicable laws, executive
orders, and other authorities pertaining to the proper use of
classification markings and the policies of the National Archives
and Records Administration.
SEC. 3. DEFINITIONS.

In this Act;

32753

H.R. 553—2
(1) DERIVATIVE CIASSIFICATION AND ORIGINAL CLASSit'iCA-

TION,—The terms "derivative classification" and "original classification" have the meanings given those terms in Executive
Order No. 13526.
(2) EXECUTIVE AGENCY.—The term "Executive agency" has
the meaning given that term in section 105 of title 5, United
States Code.
(3) ExECLrrrvE ORDER SO. issas.—The term "Executive
Order No. 13526" means Executive Order No. 13526 (75 Fed.
Reg. 707: relating to classified national security information)
or any subsequent corresponding executive order.
SEC. 4. CLASSIFIED INFORMATION ADVISORY OFFICER.

(a) I N GENERAL.—Subtitle A of title I I ofthe Homeland Security
Act of 2002 (6 U.S.C. 121 et seq.) is amended by adding at the
end the following:
"SEC. 210F. CLASSIFIED INFORMATION ADVISORY OFFICER.

"(a) REQUIREMENT TO ESTABLISH.—The Secretary shall identify
and designate within the Department a Classified Information
Advisory Officer, as described in this section.
"(b) RESPONSIBILITIES.—The responsibilities of the Classified
Information Advisory Officer shall be as follows:
"(1) To develop and disseminate educational materials and
to develop and administer training programs to assist State,
local, and tribal governments (including State, local, and tribal
law enforcement agencies) and private sector entities—
"(A) in developing plans and policies to respond to
requests related to classified information without communicating such information to individuals who lack appropriate security clearances:
"(B) regarding the appropriate procedures for challenging classification designations of information received
by personnel of such entities: and
"(C) on the means by which such personnel may apply
for security clearances.
"(2) To inform the Under Secretary for Intelligence and
Analysis on policies and procedures that could facilitate the
sharing ofclassified information with such personnel, as appropriate.
"(c) INITIAL DESIGNATION.—Not later than 90 days after the
date of the enactment of the Reducing Over-Classification Act,
the Secretary shall—
"(1) designate the initial Classified Information Advisory
Officer; and
"(2) submit to the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Homeland Security of the House of Representatives a written
notification ofthe designation.".
(b) CLERICAL AMENDMENT.—The table of contents in section
Kb) of the Homeland Security Act of 2002 (6 U.S.C. 101 et seq )
is amended by inserting after the item relating to section 210E
the following:
"Sec. 210F. Classified Infonnation Advisory Officer.".

32754

H.R.553—3
SEC. ^. INTELLIGENCE INFOR^TION SHARING.
(a) DEVELOPMENT OF Guit^ANCE FOR INTELLIGENCE PRODUCTS.—Paragraph ( l ) o f section 102A(g) of theNational Security
Actof 1947 (50 U.S.C403^1(g))is amended—
(1) in subparagraph (E), by striking "and" at the end^
(2) in subparagraph(F),bystrikingtneperiod at the end
andinsertinga^emicolonand"and":and
(3) by adding at the end the following:
"(0) in accordance with Executive Order No. 13526
(75 ^ed. Reg. 707: relating to classified national security
information) (or any subsequent corresponding executive
order), and part 2001 of title 32, Code of Federal Regula
tions (or any subsequent cotrespondingregulation), establish—
"(i) guidance to standardize,in appropriatecases,
theformatsforclassifiedandunclassificdintelligence
products created by elements of the intelligence
community for purposes of promoting the sharing of
intelligence products: and
"(ii) policies and procedures requiring the
increaseduse,inappropriate cases,and including portion markings, of the classification of portions of
information within one intelligence product.".
(b) CREATION OF UNCLASSIFIED INTELLIGENCE PHODIB^CTS AS
APPROPRIATE FOR STATE, I^OCAL, TRIBAL, AND PRIVATE SECTOR
STA^HOLDER^.—
(1) RESPONSIBILITIES OF SECItE^ARV RELATING ^O INTEI^
LIGENCE AND ANALYSIS AND INFRASTRUCTURE PROTECTION.—
Paragraph (3)of section201^d)of the Homeland Security Act
of2002 (6 U S C . 121(d)) is amended to read as follows:
"(3)Tointegrate relevant information, analysis, and vulnerability assessments (regardless of whether sucb information,
analysis or assessments are provided by or produced by the
Department) in order to—
"(A) identify priorities for protective and support meas^
ures regarding terrorist and other threats to homeland
securityby the Department, otheragencies of the Federal
Government, State, and local government, agencies and
authorities,the private sector,and other entities: and
"(R) prepare finished intelligence and information productsinbothclassifiedandunclassifiedformats, asappropriate, whenever reasonably expected to be ofbenefit to
a State, local, or tribal government (including a State,
local,or tribal law enforcement agency) oraprivate sector
entity.".
(2) ITACG DETAIL.—Section 210D(d) of the Homeland Security Act of2002(5U.S.C.124k(d))is amended—
(A)inparagraph(5)—
( D i n subparagraph (0), by striking"and" a t t h e
end^
(ii) by redesignating subparagraph (E) as subparagraph (F): and
(iii) by inserting alter subparagraph (D) the following:
"(1^) make recommendations, as appropriate, to the
secretary or the Secretarys designee, for the further
dissemination of intelligence products that could likely

32755

H.R.553-^
informor improve the security o f a State, local, or tribal
government,(includingaState,local,or triballaw enforcement agency) oraprivate sector entity: and":
(^)inparagraph(6)(C), by striking "and"attheend:
(Ci in paragraph (7), by striking the period at the
endandinsartingasemicolonand"and":and
(D)by adding at the end the following:
"(^) compile an annual assessment of the ITACGl^etail^s
performance, including summaries of customer feedback, in
preparing, disseminating, andrequestingthe disseminationof
intelligence products intended for State, local and tribal government (including State, local, and triballawenforcement agencies) and private sector entities: and
"(9) provide the assessment developed pursuant to paragraph (^) to the program manager for use in the annual reports
required by subsection(c)(2).".
(c) INTERAGENCY THREAT ASSESS^NT AND COORDINATION
GROUP ANNUALREPORT^ODIFICATION.—Subsection (c)of scction
210D of the Homeland Security Act of 2002 (6 U.S.C. 124k) is
amended—
(1) in the matter preceding paragraph (1), by striking ".
in consultation with the Information Sharing (council,":
(2) in paragraph (1),by striking "and" at the end:
(3) in paragraph (2), by striking the period at the end
andinsertingasemicolonand"and":and
(4) by adding at the end the following:
"(3) i n each report required by paragraph (2) submitted
after the date of the enactment of the Reducing Over-Classification Act, include an assessment of whether the detailees under
subsection (d)(5) have appropriate access to all relevant
information, as required by subsection (g)(2)((^).".
SEC. ^.PROI^OTION OF ACCURATE CI.ASSIFICATIONOFINFORI^TION.
(a) INCENTIVES FOR ACCURATE CLASSIFICATIONS—Inmaking

cash awardsunder chapter 45 of title 5,United StatesCode, the
President or the head of an Executive agency with an officer or
employee who is authorized to make original classification decisions
or derivative classification decisions may consider such officer^s
or employee's consistent and proper classification ofinformation.
(b) INSPECTOR GENERAL EVALUATIONS.—
(1) RE^UIRE^ENT FOR EVALUATIONS.—NotlaterthanSeptember 30, 2016, the inspector general of each department
or agency o f t h e United States with an officer or employee
whoisauthorized tomake criginalclassifications,inconsultation with the Information Security Oversight Office, shall carry
out nolesstbantwo evaluations of that department oragency
oracomponentof the department or agency—
(A) to assess whether applicable classification policies,
procedures, rules, andrcgulations havebeen adopted, followed, and effectively administered within such department, agency,or component,and
(l^)toidentify policies, procedures,rules,regulations,
ormanagementpractices that may be contributing to persistent misclassification o f m a t e r i a l within such department, agency or component.
(2) DEADLINES FOR EVALUATIONS.—

32756

H.R.553—5
(A) INITIAL EVALUATIONS.—Each first evaluation
required by paragraph (1) shall be completednolater than
September 30,2013.
(R) SECOND EVALUATIONS.—Each sccond evaluation
required by paragraph (1) shall review progress made
pursuant to the resulta o f t h e first evaluation and shall
be completed no later than September 30,2016.
(3) REPORTS.—
(A) REQUIRE^NT.—Each inspector general who is
required to carry out an evaluation under paragraph (1)
shall submit to the appropriateentities a report on each
such evaluation.
(8) CONTENT.—Eacbreportsubmittedunder subparagraph (A) shall includeadescription of—
(i) the policies, procedures, rules, regulations, or
management practices, i f any, identified by the
inspector general under paragraph(l)(l^): and
(ii) therecommendations, i f any, o f t h e inspector
general to addressanysuchidentifiedpolicies, procedures.rules.regtilations,or management practices.
(C) COORDINATION.—The inspectors general who are
required to carry out evaluations under paragraph (1) shall
coordinate with each other and w i t h t h e Information Security Oversight Office to ensure that evaluations follow a
consistent methodology, as appropriate, that allows for
cross-agency comparisons.
(4) APPROPRIATE ENTITIES DEFINED.—In this subsection, the
term "appropriate entities" means—
(A) the Committee on Homeland Security and Governmental Affairs and the Select Committee on Intelligence
ofthe senate:
C^) the Committee on Homeland Security, the Committee on Oversight and Government Reform, and the
Permanent Select Committeeonlntelligencc of theHouse
ofRepresentatives:
(C) any other committee of Congress witb^urisdiction
overadepartment or agency referred to tnparagraph(l):
(D) the head o f a depat^mcntor agency referred to
inparagraph(l):and
(E) the Director of thelnformation Security Oversight
Office.
^EC.^.CLASSIFICATIONTRAININGFROGRAI^.
(a) IN GENERAL.—The head of each Executive agency.in accordance with Executive Order 13526, shall require annual training
for each employee who has original classification authority. For
employees who perform derivativeclassification.orareresponsible
for analysis, dissemination, preparation, production, receipt,
publication, orotherwise communication ofclassified information,
training shallbeprovidedat least every twoyears.Suchtraining
shall—
(1) educate the eniployee, as appropriate, regarding—
(A)theguidanceestablishedundersubparagraph(G)
of section 102A(g)(l) of the National Security Act of 1947
(50 u s e. 403^1(g)(l)), as added by section 5(a)(3),
regardirtgtheforinattingoffinishedintelligence products:

32757

H.R.553—6
(^) the proper use of classification markings, including
portion markings that indicate the classification of pot^ions
ofinformation: and
(C) any incentives andpenaltiesrelatedtotheproper
classification ofintelligence information: and
(2)ensuresuch training is apreret^uisite.once completed
successfully, as evidenced by an appropriate certificate or other
record,for—
(A) obtaining original classification authority or derivatively classifying information: and
(^^maintaining such authority,
(b) RELATIONSHIPTO OTHEIt PROGRAMS.—The head ofeach
Executiveagency shallensurethatthe training requiredby subsection (a) is conducted efficiently and in conjunction witn any
other required security, intelligence, or other training programs
to reduce the costs and administrative burdens associated with
carrying out the training required by subsection (a).

,^^o:^ero^I/ic.^ot^^eo^/^c^r^^c^^^I^tics.

Vice President ofthe United States and
President of the Senate.

ATTACHMENT

32759

ESPIONAGE ACT AND THE LEGAL AND
CONSTITUTIONAL ISSUES RAISED BY WIKILEAKS

HEARING
BEFORE THE

COMMITTEE ON THE JUDICIAEY
HOUSE OF RBPEESENTATn^S
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION

DECEMBER 16, 2010

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

Available via the World Wide Web; httpV/judiciary.house.gov

U.S. GOVERNMENT PRINTING OFFICE
63-081 PDF

WASHINGTON ; 2011

For sale by the Superintendent uf Documents. U.S. Government Printing Office
Internet: bookstore.jtpo.gov Phone: toll free (866) 512-1800; DC area (202) 612-1600
Fax: (203) 612-2104 Moil; Stop IDCC, Washington, DC 20402-0001

32760

COMMITTEE ON THE JUDICIARY
JOHN CONYERS, JR., Michigan, Chairman
HOWARD L. HERMAN, California
LAMAR SMITH, Texas
RICK BOUCHER, Virginia
F. JAMES SENSENBRENNER, JR.,
JERROI.D NADLER, New York
Wisconsin
ROBERT C. "BOBBY" SCOTT, Virginia
HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina
ELTON GALLEGLY, California
ZOE LOFGREN, California
BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas
DANIEL E. LUNGREN, California
MAXINE WATERS, California
DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts
J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee
STEVE KING, Iowa
HENRY C. "HANK" JOHNSON. JR.,
TRENT FRANKS, Arizona
Georgia
LOUIE GOHMERT, Texas
JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico
TED
POE, Texas
MIKE qUIGLEY, Illinois
JASON CHAFFETZ, Utah
JUDY CHU, California
TOM ROONEY, Florida
TED DEUTCH, Florida
GREGG HARPER, Mississippi
LUIS V. GUTIERREZ, Illinois
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado
PERRY APELBAUM, Minority Staff Director and Chief Counsel
SEAN MOLAUOHUN, Minorily Chief of Staff and General Counsel

(H)

32761

^o^^^^^^
DECEMBER I^,^(^^I^

OI^ENIN^ STATEMENTS
The Honorable John Conyers, Jr., a Representative in Coi^gress l^rom the
State 0^ Michigan,andChairman,Committee onthe Judiciary
^heHoiior^ble^tiieOohiiiert,^Re^resent^tiveinCon^essl^rom theSt^te
ol^ Texas, and Member,Committee on the Judiciary
The Honorable William D. I^elahunt, a Representative in Cor^gress from
the St^teol^ Massachusetts, ^iidMemher,Committee on the Judiciary
The Honorable Howard Coble, aRei^resentative in Confess I^rom theSt^te
oI^NorthCarolina,and Member,Committee on theJudiciary
The Honorable Charles A. Oon^ale^, ^Representative in Congress ^rom the
State of Texas,and Member,Committee on the Judiciary
The Honorable Ted I^oe, a Representative in Congress from the State ol^
Te^^s,^iidMember,Committee on the Judiciary

^
^
^
5
5
^

WITNESSES
Mr. Ceof^ey R. Stone, I^rofessor and fo^^ner Dean, University of Chicago
I^aw School
Oral Testimony
I^renared Statement
Mr.Abbe David I..owell,^artner,McDermottWill^Emery,L,I.J^
Oral Testimony
l^re^ared Statement
Mr.I^ennethIB.Wainstein,I^artnei^,O^Melveny^Myers,^I^I^
Oral Testimony
^re^ared Statement
Mr. OabrielSchoenfeld,I^h.D.,Senior ^ellow,HtidsoriInstitr^te
Oral Testimony
I^re^ared Statement
Mr.Ste^henI.^ladecl^,I^roIessorofDaw,AmericanUniversity
Oral Testimony
I^re^ared Statement
Mr. Thomas S. ^lanton,Dii^ecto^,NationalSecurityArchive, Oeorge Wash.
ingtonUniversity
Oral Testimony
I^re^ared Statement
Mr.Ral^hNader,I.egal Advocate and Author
Oral Testimony

^llll

^
^
^5

^S
2fl

7^
77
87

32762

74
search of the truth and informing ua all." He is also the founding
editorial board member of freedominfo.org, a network of international freedom of information advocates.
I read your prepared statement with great enthusiasm, and we
are happy to have you here today.
TESTIMONY OF THOMAS S. BLANTON, DIRECTOR, NATIONAL
SECURITY ARCHIVE, GEORGE WASHINGTON UNIVERSITY
Mr. BLANTON. Mr. Chairman, it is a great honor for me, and
Judge Gohmert and also to be in the middle of this extraordinary
high-level tutorial in the Espionage Act and the Constitution. I feel
like a grad student again; and it is a joy, actually.
I also wanted to thank you, Mr. Chairman, for resurrecting my
graveyard quote, that wc have low fences around vast prairies of
government secrets where we really need tall fences around small
graveyards of the real secrets; and that is a core point I want to
come back to today.
I really have three points. One of them is the government always
overreacts to leaks, always; and all you have to do is say the
phrase "Watergate plumbers" and you know what I am talking
about.
Back then, they were discussing firebombing the Brookings Institution on the chance there might still be a copy of the Pentagon
papers in there. Today, you are having debates on FOX news: Let's
do some targeted assassination attempts on Julian Assange.
Well, I have to say G. Gordon Liddy would be right at home, and
both is absurd, And the overreaction the government typically does
is not to kill anybody or to firebomb something but to go right to

3 ^ 8 ^ : 0 3 ^ 0 . ""'"""""''"'"''^"'''"^^
What I am worried about most is the backlash. I mean, in my
prepared statement, I have got multiple examples of all the estimates, and they range from 50 percent to 90 percent, of what the
problem of overclassification really amounts to. Governor Tom
Kean, head of the 9/11 Commission, after looking at all of the al
Qaeda intelligence that we gathered before 9/11, said, you know, 75
percent of what I saw that was classified should not have been.
And the Commission said we not only needed to do information
sharing between the agencies, we had to do information sharing
with the American people, because that is the only way we can
really protect ourselves. What a great lesson that is.
The system is so overwhelmed with the secrets that we can no
longer really protect the real ones and we can't let out the ones
that would actually keep us all safer.
And I think it is a mistake to try to see this as a balancing test.
It is not a balance between openness and security. The findings of
the 9/11 Commission were that more openness would have made us
more secure. That is what you do an in open society to keep yourself safe. You are not safer in the dark. You don't hide your
vulnerabilities. You expose them and you fix them. That is how we
proceed in America.
The third point I just want to make about where we are today.
We are in the middle of a syndrome that one senior government
official I really respect holds all the clearances, does the audits,

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75
pushes back against excessive secrecy,calleditWikimania.We are
in the middle ofWikimania,and it is going to lead to so much more
heat than light. Targeted assassination is only the most extreme
case, but look at all the other proposals we have got on the table
andthefrontburnerstotrytopushback,topunish WikiLeaks,to
push back against speech.
I think theproblem here is wehave g o t t o l o o k a t eachone of
thoseproposalsandsay,is that really going to addressthe problem^Is it going toreduce government secrecyor is it going to add
to it7 Is it going to make us more safe7 Is it going to make us more
free7And do that test.
The Wikimania is really coming from a series of what in my
statement I call Wikimyths. There has not been a documents
dump. Everybody uses that phrase. There hasn't been one. The less
than ^,000 cables are on the public record today out of that big
database, andthe editorsofLeMonde andthe Guardian and l^ew
York Times say that WikiLeaks is consulting with them about
what to publish, what to redact and doing the dialogue with government officials inaprettyextraordinary,responsible way.
It isavery different posture,Ishould say, thanWikiLeaks had
even^or^monthsagolthink the criticism they have gotten from
journalists likeusandfromthepublicabout endangering people's
lives in Afghanistan and elsewhere, believe it or n o t , I t h i n k they
have actually heard it
There is no epidemic of leaks. In fact, all four of the big
WikiLeak publicity spatshavecomefromasinglepersonasfaras
we know,BradleyManning,ayoung private.
^0 how do you solve the Bradley Manning problems Well, you
could doapretty simple thing.Thel^efenseLlepartment has already done it. And here isarational security pohcy. Just like you
gottwo people tolaunchnuclear missiles,youhavego twopeople
tohandleacommunicationsmanualthathascodesinit,havetwo
peoplebeforeyoucandownload something fromasecurenetwork.
Prettysimple That would have stopped BradleyManning Mor
mons send out two people as missionaries because that is how you
have accountability,right7You don't have solosAll right.
There is no diplomatic meltdown from the WikiLeaks. I mean,
there is a lot of heatedrhetoric. But secretary of I^efense I^obert
Gates who ought to know—he served every Presidentin my lifetime, asfar as I can tell—and, Mr. Chairman, you i^uotedhis remarks.Yeah, it is awkward, yeah, it is embarrassing, but, no, it
i s n o t a m e l t d o w n . I t w i l l m a k e t h e j o b h a r d e r for diplomats.
Maybe somebody isgoingtohavetobe reassigned.But, youknow,
inthe long run,it is probably inthe American national security interest for more foreign governmentstobe more accountable totheir
own citizens for their diplomacy. It is probably in our national security interest for the I ^ n g o f ^ a u d i Arabia to actually be on the
publicrecordalittlemore often andthe Chinapolitburomembers
to get exposed every now and then.That might bealong-term goal
of what American national security diplomacy ought to be about.
And, finally, there is not a set of Wiki terrorists. I have heard
that phrase batted around. They are not terrorists.
Ihave to tell you,Iwish every terrorist group in the world would
write the I ^ . ^ . ambassador in their local town, you know, days or

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7^
aweek before they are about to launch something, and ask the ambassador, hey,would you help us,you know,make sure nobody in
nocent gets hurt7 Would you really work with us7 We would be
glad to talk to you.
Andlunderstand why the ambassadors didn't believethem.Because WikiLeaks said, oh, and, by the way, we will keep anything
yousay tousconfidential. I t i s h a r d tosquare wdththeprevious
statements ofWikiLeaks.
B u t l w i s h every terrorist group would get into partnership with
Le Monde and El Bais and the Guardian and the NewYork Times
to assess what the damage might be, to redact their own documents, to put regulators on thebombs they drop. That would be
agoodthing.WikiLeaks is not terrorists.
And so thatbringsmeto my final realpoint and recommendation to this Committee and to the prosecutors across the river in
Alexandrian Just restraint.Iknow you don't usually have witnesses
come up here and say, hey, let's all go takeanap But you know
insleep-deprivedWashingtonwemightcouldusealittlemorerestraint.
Iwould say leave the Espionage Act back in mothballs where it
is right now and should stay And in fact what we know is from
some freedom of information re(^uests there are still some classified
documents from 1917 that will give the Espionage Act very good
company.L^on't mess with it.Leave it alone.
Our fundamentaltestshouldcomeoutof Justice^tewart'sdicta
inthe I^entagonpapers case and some wonderful articles that Jack
Goldsmith has actually written in the last couple of years where
he says, look, our problem is, you know, the fundamental cause of
leaks is a sense ofillegitimacy that is bredby excessive government secrecy.
How do you address that7 You reduce the secrecy How do you
deal with the legitimacy problem7You make sure as few secrets as
possible are actually held and you protect those very strongly.
^othe testis, forall theseproposals, legislativeand otherwise,
does it sendasignalthat will actually reduce government secrecy7
Ooes it send a signal that we need maximum possible disclosure,
in Stewart's phrase, to haveasystem that actually has credibility
and can protect the real secrets and where we can protect ourselves7
Ithank you, Mr Chairman, for this opportunity to engage in this
debate. Ihope it willreducethemaniaalittlebitandcut through
some ofthe mythsThank you, sir
^The prepared statement of Mr.Blanton follows^l

32765

77
PREPARED STATEMENT OF THOMAS S. BLANTON

Statement of Thomas Blanton
Director, National Security Archive, George Washington University
ww^v. nsa rob ivc.org
To the Committee on the Judiciary
U.S. House of Representatives
Hearing on the Espionage Act and the Legal and Constitutional
Implications of Wikileaks
Thursday, December 16,2010
Rayburn House Office Building, Room 2141
Washington D.C.

Mr. Cliairman, Ranking Member Sitiilli, and members of the Commillee,
thanlc you for your invitation to testify today on the implications of the
Wikileaks controversy. I am reminded of the ancient Chinese curse, "May
you live in interesting times."
I have three main points to make today:
First, the government always oveneacls to leaks, and histoiy shows we end
up with more damage from the overreaction than from the original leak.
Second, the government's national security classification system is broken,
overwhelmed with too much secrecy, which actually prevents the system
from protecting the real secrets. The rest should all come out.
Tliird, we are well into a syndrome that one senior government official
called "Wikimania," where Wikimyths are common and there is far more
heat than light - heat that will actually produce more leaks, more
crackdowns, less accountable govemment, and diminished security.
By way of background, I should say right up front that my organization, the
National Security Archive, lias not gotten any 1.6 gigabyte thumb drives in
the mail in response to our many freedom ofinformation Act requests, nor
have we found any Bradley Mannings among the many highly professional
f OLA officers who handle our cases. It's a lot more work to pry loose

32766

7S
national security documents the way wc do it, hutthenifsalot of work
worth doing to make the rule oflawareality and give real force to the
freedom ofinformation Act.
It takes lis years ofresearch and interviews and combing the archives and the
memoirs and the press accounts, even reading tbe agency phone books, to
design and file Ibciisedret^ucsts that don't waste the goveri^eiifstime or
ourtimebuthoneinonkeydocumentsandkeydecisionpoints,thento
follow tip witli the agencies, negotiate the search process, appeal the denials,
even go to court when tlie Stonewalling gets out ofhai^d. Changing tlie iron
lawsofhureaucracyisatallorder,l^ut we have allies and like-minded
openness advocates in more than ^0 countries now.passing access laws and
openingl^olithuro and military dictators'tile3, poring diroiighComnuaiist
farty records and secret police archives and death s^uad diaries, rewriting
histor^^,recovcringinemory,and bringing humanrightsabusers to trial.
Our more than ^O,000freedomoflnlbrmation requests have opened up
millionsofpages that were previously classified; we've published more than
ainillion pages of documents on the Web and other fonnats,our staff and
fellows have audiored more than 60 book^,one ofwhich won tlic l^ulit^er
Our freedom oflnfomiation lawsuits have saved tens ofmillions ofWhite
House e-mail spanning from l^eagan to Obama, whose Blackberry messages
are now saved tbrposterity.
The George foster feahodyAwardinl^^^ recognised our documentary
contributions to Cl^'s^'^^^^^^ series both from the freedom of
iiitbrmation Act and frointhe Soviet archives; theBmmy Award in200^
recogni^dotir "outstanding achievement in news and documentary^
research"; and file George folkAwardcitation^April 2000^ called lis "a
fOlL'ers bestfriend"and usedawoii^erful phrase to describe what we do:
^^iercing the selfser^ing veils ofgoven^meiit secrecy, guidingjotimalists in
search forthe truth, and informing us all."
Most pertinent to our discussion here today is our experience with the
massiveoverclassificationoftheUS govcrninent'snational security
intbnnation. Later in tliis testimonylinclude some ofthe expert
assessments by ctmrent and fomier officials who have grappled witli the
secrecy system and who estimate that betw^een^O^ to ^O^of what is
classified is either overclassified or should not be classified at all. That
reality should restrain us from encouraging government prosecutors to go

32767

79
afrer anybody who ha^unauthori^d possession ofclassified information:
such encouragement is an invitation for prosecutorial abuse and overreach^
exactly as we have seen in tlie case ofthe lobbyists for the American Israel
fublicAftairs Committee
The reality of massive overclassification also points lis towards remedies tor
leaks that are die opposite of tliose on the front bumers such as criminali:^iiig
leaks, fhe only remedies that will genuinely curb leaks are ones that force
the govemment to disgorge most ofthe information it holds rather than hold
more information more tightly.
Butarational response to excessive government secrecy will be even more
difliculttoaclneve in the current atmosphere ofWikimaiua. The heated
calls for targeted assassinations ot^leakers and publishers remind me ofthe
Nixon White l^ouscdiscussionsoffircbombingdieBrookingslnsdtutionon
suspicionofhotisingacopy ofthe fentagonfapers. It was the earlier leak
ofthe secret bombing ofCambodia that started fresidemt^ixon down the
path to the Watergate plumbers, who began with righteous indignation about
leaks, then moved to black bagjobs and break-ins and dirty tricks, and
brought down the presidency. All tlie while, as the Ooonesbury cartoon
pointed out,only theAmerican people and Congress were in the dark. One
famous strip showedaCamhodian couple standing amid bomb wreckage,
and the interviewer asks,was this from the secret bombing7 Oh,no,nota
secret at all, "1 said, look Martin, here come die bombs."
few have gone a^ far as Nixon,but overreaction to leaks has beenaconstant
in recent American history. Almost every president has tied liis White
House in knots over embarrassing internal leaks; for example, the moment
ofgrcatest conflict betwecnfrcsidcnt Reagan ai^d his Secretary ofState
George Shult^ was not over tlie Iran-contra affair, but over the idea of
subjecting Shtill:^ and other high officials to the polygraph as part ofaleakprevention campaign fresident ford wentfromsupportingto vetoing the
freedom ofinformation Act amendments o f l ^ 7 ^ because ofliis reaction to
leaks^onlyto be overridden by Congress^. fiesidentCeorgeW.^ushwas
so concerned about leaks, and about aggrandi^ng presidential powcr,that
his and Vice fresidentChcney'stopstaffkept the Oeputy Attorney General,
number two atlustice.outofthe loop on the warrantless wiretapping
program, and didn't even sbarelegal opinions about tbe program with the
top lawyers ofthe National Security Agencythat was impleinentingthe
intercepts.

32768

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But even with this background,Ihave been astonished at the developments
ofthe last week,with the Air force and the Library ofCongress blocking the
Wikileaks web site, and warning theirstatf not to even peek Ishouldhave
known the Airforce would come up with something like this. Tlie
Archive'sownfreedomoflnfonnation Act lawsuit overthelast^years had
already established that the Air force created probably the worst f O l A
processing system in the eniire federal govemment^the federaljudge in our
case ruled the Air force had "miserably failed" to meetthe law's
requirements. But now, apparently,the worst f O l A system has founda
mate in the worst open-source information systems fhis policy is
completely self-defeating and foolish IfAirforce personnel do not look at
tlieleaked cables,then they are not doing their job as national security
professionals.
Comes now the Library ofCongress, built on Thomas lelfersoifsbooks,
also blocking access to the Wikileaks site. OnthefCblog,arepeated
question has been when exactly are you going to cut otfthe^'^^^ii^^^r^/i^^.^
sitetoo7 One might also ask, when will you remove Bob Woodward's
books from the shelves7
Official reactions like these show how we are suffering from "Wikimania."
Almostall of the proposed cures for Bradley Manning'sleak of the
diplomatic cables are worse than the disease Tire real danger ofWikimania
is that we couldrevert to Cold War notions ofsecrecy,to the kind of
stovepipes and compartments that left us blind before ^ / l l , t o mounting
prosecutions underthe fspionage Act that just waste taxpayers'money and
ultimately get dropped, and to censorship pressure on Internet providers that
emulates the Chinese n^dclofstatc control ratbcrtlian the first
Amendment So perhapsafirstorderofbusiness should be to dissect some
ofwhatlcall the "Wikimyths."
l.Adocumentdump.
So far there has been no dumpofthc diplomatic cables. As of yesterday,
there were fewerdian 2,000 cables posted on the Web in the Wikileaks and
media sites combined, and anotherlOO or so uploaded each day,not the
2^1,000 that apparently exist in tbe overall database as downloaded by
Bradley Manning. And even that set ofaqiiarter-inillion cables represents
onlyafraction ofthe total flow of cable tral^fic to and from the State

32769

SI
f^epartment, simply the ones that State staffconsidcred "reporting and other
informational messages deemed appropriate for release to the US
government interagency commiinity"^theforeign Affairs Manual
explanation oftheSlfOIStag^ According to the editorsof/.^,^^!^^ and
7^/i^^^i^^r^i^^,Wikileaks is following the lead ofthe media organisations on
which documents to post, when to do so,and wharto redact from the cables
intennsofsourceideiilitiestliat might put someone at risk. Such behavior
is the opposite ofadiimp. Atthesametime,an"insiirance"filepre.siimably
containing die entire database in encr^^ptedfom^ is in the hands of
thousands, and Wikileaks founder .lulian Assange ha^tlireateiied to send out
the decr^^ptkey,if and when his back is against the wall Soa^ump could
yet happen ofthe cables, and the priorrecord is mixed Adump did begin of
the Iraq and Alghan war logs, but once reporters pointed out the danger to
local cooperators from being named in the logs,Wikileaks halted the dump
and withheld some 1^,000 items out of^fOOO Afghan records.
2. An epidemic ufleaks.
Wliile the quantity ofdocuments seems huge ^hundreds of thousands
including the Iraq and Afghan materials^, from everytliing we know to date,
all lour tranches ofWikileaks publicity this year have come froinasingle
leaker, the Army private Bradley Manning, who is now behind bars, first,
in April,was the helicopter video ofthe 2007 shooting ofthe l^euters
cameramen. Then came the Iraq and Afghan war logs ^higlily granular
situation reports tor the most pai^^in.luly and October l^owweseethe
diplomatic cables fromtheSlfl^et.Between^OO,000 and 600,000U.S
military and diplomatic personnel were cleared for S l f l ^ e t access,soa
securit^^of^ciallookingforaglasshalffiill would point out thatahun^an^
designed security system with halfaniillion potential error points ended up
only w ith one.
Abetter contrast wouldbe to compare the proposals for dramatic expansion
ofthe Bspionage Act into arresting foreigners,to the simple operational
security change that the f^elenseOepartment has already implemented. The
latterwouldhavepreventcdMannin^fromdoinghissolodownloadsonto
CO, and we should ask wliich approach would be more likelyto deter future
Maimings. State f^epartmeiit officials were gloating last week that no
embassy personnel could pullaManning because State'sversion ofthe
SlfRNet wouldn't allow downloads onto walk-away media like thumb
drives or COs. f^efense'srejoiiiderwas that its wide rai^ge of forward

32770

s^
operating bases, equipment crashes from dust storms and incoming fire, and
often tenuous Internet connections-certaiiily compared to the usually cushy
conditions inside embassies^meant some download capacity was essential.
l^ow,just as nuclear missile launch requires two operators'keys, and the
handling ofsensitive communications intelligence manuals requires "two
person integrity,"and the Mormons send thcirmissionaries out in pairs,a
S l f l ^ e t download would take two to tango.
^,Adiplomatic meltdown.
Headline writers loved this phrase, aided and abetted by official statements
like Secretary ofState Hillary Clinton'scharacteri^ation ofthe cables'
release as an "attack on America""sabotaging peaceful relations between
nations." In contract, the Secretary of Oefeiise Robert Gates played dow^^
the heat, inamuch more realistic assessment that bears repeating. Gates
told reporters t^vo weeks ago,"fve heard the impact ofthese releases on our
foreign policy described asaineltdown,asagame-changer and so on. I
think these descriptions are fairlysignificantly overwrought....Is this
embarrassing^ Yes Isitawkward7 Yes. Consequences forU.S foreign
policy7 Ithink fairly modest." Mo^t international affairs scholars are
calling the cables fascinating and usehil, but at least so far nothing in the
diplomatic cables compares to the impact on public policy in 200^ from the
leakot^the Abu Ghraib photographs, or other recent leaks ofthe existence of
the secret prisons, or the torture memos, or the fact of warrantless
wiretapping, or even the fentagonfapers'contribution to the enii ofthe
Vietnam war.
4.Alternatively,none^^shere.
Wikileaks critics who were not bemoaiungaglobal diplomatic meltdo^vn
often went to the opposite extreme, that is to say there was nothing really
new in the Bradley Manning cables The pa^t two weeks'worth offrontpage headlines in the leading newspapers and broadcasts around the world
should lay this myth to rest l^olks with more news judgment than w^e have
in this room are continuing to assign stories from the cables, and foreign
media in particular are getting an education perhaps more valuable for their
understanding oftheir own countries tliai^ ofthe U.S. Like^vise,theblogs
are full oflistsofstories showing all the things we didn't know before the
cables emerged The real problem with the modern news media is evident
from the fact that there are n ^ i y more reporters clustered around the British

32771

s^
jail holding Assange, than there are reporters in newsrooms acmally reading
the substance ofthe documents. Celebrity over substance every time.
^.Wikiterrorists.
Iwish all terrorist grotips would ^vrite the localU.S.ambassadorafew days
before tliey are launching anything^the way lulian Assange wrote
Ambassador Louis Susman in London on November 26^to ask for
suggestions on howto make sure nobody gets hurt lean certainly
understand the State Oepariment'shostile response and refusal to engage
withAssangeinthekindofdialogueUSgovemmentofiicialsroutinely
have with mainstream media, and were already having w^ith the .^^^f^r,^
^/B^i^.^overthese particular cables. Given Wikileaks'sprior stance,who in
State could possibly have taken at face value the phrase in the floveinber 26
letter which says "Wikileaks will respect the confidentiality ofthe advice
provided by the United States Govemment" about risk to individuals.
^utl^^sh all terrorist groups would partner up with/.i^^t^^^i^^ and ^.^^/^^i.^
and/^^i^.^i^,i^^^and7^^^^i^^ir^/i^^,and^/^^.^i^i^f^^/^7^^^^^
guidance ofthose professional journalists on what bombs go off ai^d when
and with what regulators, fven to make the comparison tells the story^
Wikileaks is not acting as an anarchist group, even remotely as terrorists, but
asapart ofthe media, as publishersofinformation, and even more than that
^the evidence so far shows them trying to rise to the standardsof
professional journalism.
Iwas quoted in Sunday's.^^i^fi^^^^^^^^^ as saying "I'm watching
Wikileaks grow up" as they embrace the mainstream media which "they
used to treat asacuss word." So far, with onlyafcw mistakes to date,the
treamient ofthe cables by the media and by Wikileaks Iras been very
responsible, incorporating governmental feedback on potential damage,
redacting nainesofsources, and even withholding whole documents at the
govemment'srequest Ofcourse, Assange and his colleagues could revert to
more adolescent behavior, since there is the threat out there ofthe encrypted
"insurance" file that would be dropped likeapinata ifthe organisation
reaches dire straits. But even then, even ifall the cables went online, most
of us would condemn the recklessness of such an action, but the fundamental
media and publisher function Wikileaks is seizing would not change.

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s^
6. When the government says it^sclassi^ed, our ^oh as citi7:ens is to
salute.
Actually ourjobas citizens is to ask questions Ihave mentioned that
experts believe ^ 0 ^ to ^O^ofour national security secrets could be public
with little or no dai^iage to real securit^^. Afew years back, when l^ep.
Christopher Sha^s^l^-CT^ asked Secretary off^efenseOonal^ Rumsfeld's
deputy for counterintelligence and security how much government
infonnation was overclassified,her answerwas^O^. Afterthe ^ / l l
Commission reviewed the govei^aneiit'sinost sensitive records about Osama
bin Laden and Al-C^aeda,the co-chairofthat commission, former Oovemor
ofNewlerseyToml^ean, commented that "three-quarters of whatlread
that was classified shouldn't have beeif'^a7^^judgment fresident
Reagan's^ationalSecurityCouncil secretary Rodney McOaniel estimated
in l ^ ^ l t h a t o n l y l O ^ o f classification was for "legitimate protection of
secrets"^so^0^imwarranted Ai^other data point comes from the
Interagency Security Classification Appeals fanel,o^er the past l^years,
ofits
has overruled agency secrecy claims in whole orinpartin some
cases.
When twooftheClA'stop officers refiredand went into business,the
l^f^^/ii^^^i^^^.^i:i.^^'sOanaHedgpeth asked them what was most surprising
about being in the private sector. Cofer Black and Robert l^icher responded
that "muchofdie information they once considered top secret is publicly
available.The trick, Richer said, is knowing where to look ^Inaclassificd
area, there'san assumption that i f i t is open, it can't be as ^ood as if you
stole it,'Richer said, ^fm seeing that atleast^O percent of what we stole
was open.'"^"Blackwater'sOwner Has Spies for flire,"byOanalledgpeth,
^^^/^^^^^^^^^^,^^^,hloveinbcr3,2007^. And this was before tbe Bradley
Manning leaks.
In the National Security Arcliive'scollection^,we have do:^ens of examples
ofdocuments that are classified and unclassified at the same time,
sometimes with different versions from different agencies or different
reviewers, all because the secrecy is so subjective an^ overdone Myo^vn
favorite example isapieceofWliitellouseeinail from the I^eaganyeais
when topofficials were debating how bestto help out SaddamHu^sein
againstthelranians.Thefirstversion that came back from ourfreedom of
Infonnation lawsuit had large chtuiks ofthe middlesection blacked out on
national security grounds, classified at the secret level a2 doing serious

^

32773

S5
damage to our national security if released. But the .second version,onlya
week or so later, bad almost no black in the middle, but censored much of
the top and the bottom sections as secret. Slide the t^o versions together
and you could read practically the entire document. I he punch line is: This
was the same reviewer both times, just with almost completely contradictory
notions ofwhat needed to stay secret.
The Bl.^.^^^i^^i^^^r^.^.^reporied last w^eek^ecember^,20IO^ that reporter
Matt Apu^^'sreview ofthe Bradley Manning cables "unmasked another
closely guarded fact: Much ofwhat the govemment says is classified isn't
muchofasecretatall. Sometimes, classified documents containedlittle
more than summaries of press reports, folitical banter was treated as
confidential government intelligence. Information that'savailable to anyone
with an Internet connection ^vas ordered held under wTapsforyears " The
first example A f cited wasacable from the US fmbassy in Ottawa
briefing fresident Cbama in early 200^ for an upcoming trip to Canada,a
cablewhich "included this sensitive bit ofinfomiation, marked confidential:
^1^0 matter which political party forms the Canadian government during
your Administration, Canada will remain one ofourstaunchest and most
likeiniiided of allies,our largest trading and energy partner,and our most
reliable neighbor and friend.' The document could not be made public until
201^,for national security reasons,"theAf reported.
Among other issues raised by Ihe A f reporting is the fact diat more than half
ofthe Bradley Manning cables are themselves unclassified to begin with
Why did these items nee^ to be buried insideasystein that went up to the
secret Ievel7 Whycouldn'tthose unclassified cables go up on theStatc
flepartment'sown public Web site7 ^re they really all press summaries and
administrivia7 Oo they need any furtlicr review such as for privacy or law
enforcement issues7 What objection w^ould the govemment have to preempting Wikileaks by posting these^thatsomehowit would be rewarding
illicit behavior7
^ringingthe reality ofoverclassification to the subiectofleaks,flarvard law
professor lack Goldsmith,who served fresident GeorgeW Bush as head of
the controversial Office ofLegal Counsel at the .lusticeOcpartment, has
written,"Aroot cause ofthe perception ofillegitimacy inside the
government that led to leaking^and then to occasional irresponsible
reporiing^ is,ironically,excessive govemment secrecy." Goldsmith went
on, in what was other^viseahigl^y critical reviewofthe^^^^f^r^ 7^^^^^.^'

32774

S8
coverageofwiretapping during the GcorgeW Bush years ^"Secrecy and
Safety,"by .lackGoldsmith, f/i^.^^w.^^^^i^^Bc., August l^,200^j, to point
out,^^hesecrecyofthe Bush administration was genuinely excessive, and
so it was self-defeating. One lesson ofthe last seven years isthat the way
for the government to keep important secrets is not to draw the normal circle
of secrecy tighter Instead the govemment should be as open as possible..,."
Goldsmith'sanalysis draws on the famous dicta of Itisticefotter Stewart in
the fentagonfapers case: "Wlien everything is classified, then nothing is
classified, and tlie system becomes one to be disregarded by the cynical or
the careless, and to be manipulated by those intent on self^protection or selfpromotion." In fact, Stewart obser^ed,^^he hallmark ofatruly effective
internal securit^^ system would be the maximum possible disclosure"since
"secrecy can best be preserved onlywhen credibility is truly maintained."
Between Goldsmith and Stewart,then, M r Chaimiaii.wehaveapretty good
guide with which to assess any ofthe proposals that may come before you in
the guise ofdealing with Wikileaks in these next months We have to ask,
will the proposal draw the circle ofsecrecy tighter, or move us tow^ards
maximum possible disclosure7 Wehave to recognise tliat riglitnow,we
have low fences around vast prairies ofgovernment secrets,when what we
need are high fences around small graveyards oftbe real secrets Wc need to
clear outour backlog ofhistoric secrets that should long since have appeared
on the public shelves, and slow die creation of new secrets. And those
voices who argue fbracrackdown on leakers and publishers need to face the
reality that their approach isfiindamentallyselfdefeatiiig because it will
increase government secrecy, reduce our security, and actually encourage
more leaks from the continued legitimacy crisisofthe classification system
Thai:ik you foryour consideration of these views, andllookfbr^^^d to your
questions.


32775

ATTACHMENT

(Please see separate e-mail attachment)

AUTHENTICATED
U k GOVERNMENT
INhORMATIf

32776

THE OVER-CLASSinCATION AND
PSEUDO-CLASSinCATION:
PART I, II, AND III
HEARING
BEFORE T H E

SUBCOMMITTEE ON INTELLIGENCE,
INFORMATION SHARING, AND
TERRORISM RISK ASSESSMENT
OF T H E

COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
MARCH 22, 2007, APRIL 26, 2007, AND JUNE 28, 2007

Serial No. 110-20
Printed for the use of the Committee on Homeland Security

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

U.S. GOVERNMENT PRINTING OFFICE
35-279 PDF

WASHINGTON : 2009

For sale by Ihe Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) Sl2-\800; DC area (202) 512-1800
Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001

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COMMITTEE ON HOMELAND SECURITY
BENNIE G. THOMPSON, Mississippi, Chairman
PETER T. KING, New York
LORETTA SANCHEZ, California,
LAMAR SMITH, Texas
EDWARD J. MARKEY, Massachusetts
NORMAN D. DICKS, Washington
CHRISTOPHER SHAYS, Connecticut
JANE HARMAN, California
MARK E. SOUDER, Indiana
PETER A. D E F A Z I O , Oregon
TOM DAVIS, Virginia
NITA M. LOWEY, New York
DANIEL E. LUNGREN, California
ELEANOR HOLMES NORTON, District of
MIKE ROGERS, Alabama
Columbia
BOBBY JINDAL, Louisiana
ZOE LOFGREN, California
DAVID G. REICHERT, Washington
SHEILA JACKSON LEE, Texas
MICHAEL T. McCAUL, Texas
DONNA M. CHRISTENSEN, U.S. Virgin
CHARLES W. DENT, Pennsylvania
Islands
GINNY BROWN-WAITE, Florida
MARSHA BLACKBURN, Tennessee
BOB ETHERIDGE, North Carolina
JAMES R. LANGEVIN, Rhode Island
GUS M. BILIRAKIS, Florida
HENRY CUELLAR, Texas
DAVID DAVIS, Tennessee
CHRISTOPHER P. CARNEY, Pennsylvania
YVETTE D. CLARKE, New York
AL GREEN, Texas
ED PERLMUTTER, Colorado
VACANCY
JESSICA HERRERA-FLANIGAN, Staff Director & General Counsel
TODD GEE, CHIEF COUNSEL
ROSALINE COHEN, Chief
Counsel,
MICHAEL TWINCHEK, Cliief
Clerk
ROBERT O'CONNOR, Minority
Staff
Director

S U B C O M M I T T E E ON I N T E L L I G E N C E , I N F O R M A T I O N S H A R I N G , A N D
TERRORISM RISK ASSESSMENT
JANE HARMAN, California, Chair
NORMAN D DICKS, Washington
DAVID G. REICHERT,
Washington
CHRISTOPHER SHAYS, Connecticut
JAMES R. LANGEVIN, Rhode Island
CHARLES W. DENT, Pennsylvania
CHRISTOPHER P. CARNEY,
Pennsylvania
PETER T. KING, New York (Ex Officio)
ED PERLMUTTER, Colorado
BENNIE G. THOMPSON, Mississippi (Ex
Officio)
THOMAS M. FINAN, Director and
Counsel
BRANDON DECLET,
Counsel
NATALIE NIXON, Deputy Chief
Clerk

DERON MCELROY, Minority Senior Professional Staff

Member

(II)

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^o^^^^^^
STATEl^IENTS

The Honorahle JaDe Harman, a Represeiil.ative in Congress from Ihe State
of California, and Chairman, Siihcommitfee on Intelligence, Information
Sharing,andTerrorismRisk Assessment
The Honorahle David G. Reichert, a Representative in Congress from the
State of^ashington, andRankingMemher, Siihcommitteeon Intelligence,
Information Sharing,andTerrorismRisk Assessment
The Honorahle Bennie G. Thompson, a Representative in Congress from
the State ofMississippi,and Chairman,Committee on Homeland Secnrity ..
The Honorahle Charles
Dent, a Representative in Congress from the
State ofPennsylvania
The Honorahle Christopher P. Carney, a Representative in Congress from
the State ofPennsylvania
The Honorahle ^ames R. Langevin, a Representative in Congress from the
State ofRhode Island

I
^
^
22

21

WITNESSES
THURSDAY, MARGH 22, 2007, P A R T i
PANELl

Mr.Scott Armstrong,Eonnder,InformationTnist
Ms. MeredithPtichs.GeneralConnsel,The National SectirityArchive,George
^ashingtonUniversity;
Oral Statement
Prepared Statement
Mr. ^. William Leonard, Director, Information Security Oversight Office,
National Archives and Records Administration;
OralStatement
Prepared Statement

^
II
I ^
5
7

PANEL I I

Mr. Michael P. Downing, Assistant Commanding Officer, Connter^Terrorism/
CriminallntelligenceBiireati,Los Angeles PoliceDepartment:
OralStatement
Prepared Statement
Chief Cathy L. Lanier,Metropolitan Police Department,^ashington, DC:
OralStatement
Prepared Statement

2^
^ I
2^
2^

THURSDAY, APRIL 2^, 2007, PART I I
PANELl

Amhassador Thomas E. McNamara, Program Manager, Information Sharing
Environment,Oflice of theDirectorofNational Intelligence:
OralStatement
Prepared Statement

(Ill)

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I^
I^^^^

Dr. Carter Morris, Director, Informational Sharing and Knowledge
Management, Office of Intelligence and Analysis, U.S. Department of
Homeland Security:
OralStatement
PreparedStatement
Mr. ^ayne M. Mtirphy, Assistant Director, Directorate of Intelligence,
EederalBiireatiof Investigation:
OralStatement
PreparedStatement

52
5^
57
5^

PANEL I I

Mr. Mark ^adra, Assistant
Enforcement:
OralStatement
PreparedStatement

Commissioner,

Florida Department

of Law

THURSDAY, ^UNE 2^, 2007, PART I I I

Mr.Mark Agrast,Senior Fellow,Center forAmerican Progress:
OralStatement
PreparedStatement
Mr.Scott Armstrong, Fotinder,InformationTriist:
OralStatement
PreparedStatement
Mr. ^. ^ i l h a m Leonard, Director, Information Security Oversight Office,
National Archives andRecord Administration
Ms.Suzanne E.Spatilding,Principal,BinghamConsnItingGrotipLLC:
OralStatement
PreparedStatement

^5

^0
^2

FORTHEREGORD
MARGH 2 2 , 2 0 0 ^ , P A R T l

Prepared Statements:
Hon. ^ane Harman
Hon.Bennie G.Thompson

III.
11^
APR1L2^,200^,PARTH

PreparedStatement:
Colonel Bart R.Johnson,NewYork State Pohce

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32780

THE IMPACT ON INFORMATION SHARING
PART I
Thursday, March 22, 2007
U.S. HOUSE OF REPRESENTATIVES,
COMMITTEE ON HOMELAND SECURITY,
SUBCOMMITTEE ON INTELLIGENCE, INFORMATION SHARING,
AND TERRORISM RISK ASSESSMENT,

Washington, DC.
The subcommittee met, pursuant to call, at 10:09 a.m., in Room
311, Cannon House Office Building, Hon. Jane Harman [chairwoman of the subcommittee] presiding.
Present: Representatives Harman, Langevin, Thompson,
Reichert, and Dent.
Ms. HARMAN. [Presiding.] The subcommittee will come to order.
The chair apologizes for a late start. Even though my party is in
the majority, I don't run the schedule here, and there was a conflicting hearing on emergency interoperability, and I was asking
questions of witnesses. And that subject, obviously, is directly relevant to some of the tasks of this subcommittee, so I hope you will
forgive me.
A recurrent theme throughout the 9/11 Commission's report was
the need to prevent widespread over-classification by the federal
government. The commission found that over-classification interferes with sharing critical information and impedes efficient responses to threats.
The numbers tell us we are still not heeding the commission's
warning. Eight miUion new classification actions in 2001 jumped to
14 million new actions in 2005, while the quantity of declassified
pages dropped from 100 million in 2001 to 29 million in 2005. In
fact, some agencies were recently discovered to be withdrawing
archived records from public access and reclassifying them.
Expense is also a problem. $4.5 billion spent on classification in
2001 increased to $7.1 billion in 2004, while declassification costs
fell from $232 million in 2001 to $48.3 miUion in 2004.
In addition, an increasing number of policies to protect sensitive
but unclassified from a range of federal agencies and departments
has begun to have a dramatic impact. At the federal level, over 28
distinct policies for the protection of this information exists—28
distinct policies. That is almost as many policies as we have watch
lists—that was intended to be humorous.
Unlike classified records, moreover, there is no monitoring of, or
reporting on, the use or impact of protective, sensitive, unclassified
information markings. The proliferation of these pseudo-classifica(1)

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tions is interfering with the interagency information sharing, increasing the cost of informationsecurity and limiting public access.
Case in point, this document from the Oepartmentof Homeland
Security This document, which I cannot release t o y o u o r t h e
press,is called,^^SpecialAssessment:Radicalization inthe State of
California,"asurvey,anditisdatedthe22ndofl^ovember,200^.
In a few weeks, I will be leading a field hearing to Torrance,
California to examine the issues of domestic radicalization and
homegrownterrorism,but thisOHS document, asurvey,asl mentioned,is marked,^^unclassified,for officialuse only."
Cn page one, in a footnote, the survey states that it cannot be
released ^^to the public, the media or other personnel who do not
haveavalidneedtoknow without prior approvalofanauthorized
OHS official "
Cur staff requested and was denied an approval. Staff also asked
for a redacted version of the document so we could use at least
some of its contents at the coming California hearing.DHSwas unable to provide one.
Let me be clear, and I say this as someone who served for 8
yearson theHouselntelligence Committee, I am not denying that
there may be sensitive information included in this survey and in
lotsofproductspreparedby ourgovernment, butitillustrates my
point.
^ h a t good isunclassifiedinformationabout threats tothehomel a n d i f we can't even discuss them at a public hearing where the
publicis supposed to understand what some ofthose threats may
be7 How can we expect OHS and others to engage the public on
important issues like domestic radicalization i f we hide theball7
Unfortunately, this is nothing new In 1997, the Moynihan Com
missionstatedthattheproliferationof these newdesignationsare
often mistakenforafourthclassificationlevel,causing unclassified
information with these markingstobetreatedlike classifiedinformation.
These continuing trends are an obstacle to information sharing
across the federal government and vertically with state, local and
tribal partners, including most especially with our partners in the
law enforcement community.
And inoursecondpanel,we are going tohear from some of those
partners, including Chief Lanier, a n d l w a n t to welcome her today
andcongratulateheragainon being one of theyoungest ever police
chiefs in the nation and a very well qualified person to hold this
position.
Until we havearobust intelligence and informationsharingsys
tern in place in this country withaclear and understandable sys
tem of classification, we run the risk of not being able to prevent
aterrorist attackon t h e s c a l e o f 9 / l l or greater, a n d l wouldeven
add on the scale of 9/11 or smaller ^ e are hurting ourselves by
thewayweunnecessarily protect information.
This is why this subcommittee will focus some of its efforts inthe
110th Congress on improving information sharing with our first
preventers, the men and women of state, local and tribal law en
forcement who are the eyes andears on our frontlines. ^ e will do
this work intherightway,partnering w i t h o u r f r i e n d s i n t h e p r i

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vacyandcivil liberties community whowant to protect America
v^hile serving our cherished rights.
I would liketoextendawarmwelcometo our witnesses who will
be talking about these issues, first, some organizations, and then,
two,onthe frontlines inourlawenibrcement organizations.
Cn our first panel, we have assembled an array of experts who
willbetestifying about the extent of theseproblemsandwhereare
things aretrending,and,aslmentioned,our secondpanelwill give
us somereallife experiences where classification—andldon'twant
to put wordsin their mouths, b u t l h a v e read their testimony—is
anobstacleratherthan someformofbenefittothem in their role
toprevent,disrupt andprotect the Americanpublic.
In addition, Ihope witnesses willprovide someconstructivesuggestions about how we might solve this problem, with the goal of
ensuring the fiow ofinformation, the unfettered fiow of necessary
information between the federal government and state, local and
tribalgovernments.
welcome to all.
Inowyieldtotheranking member for opening remarks.
Mr. REICHERT. Thankyou, MadamChair, and thankyoufor organizing this hearing. It isapleasure to be here this morning.
And thank all of you for being here in time from your busy
schedule to come and testify before us
^ e are all here this morning to discuss one o f t h e subcommittee's major priorities, this over classification and pseudo classification Overclassification,as most of you know,refers to decisions by
the federal government to routinely restrict access to information
using the designation,^^confidential,"^^secret"or^^top-secret."
Pseudoclassificationisasimilar practice appliedtosensitivebut
unclassified information. This practice involves federal, state or
local entities adding restrictions based on internal policies. The
C^AO has found that there are at least 5^ different sensitive but
unclassified designations at the federal level—5^.
Common examples include, ^^for official use only," ^^sensitive but
unclassified," ^^sensitive security information," and ^^law enforcement sensitive." Some of these designations make sensed some
don't. Some, thereis a real need toprotect classified and sensitive
information fromdisclosure.
In a world where virtually piece of unclassified information is
availableon thelnternet, weneedtoensure that what needs tobe
protected remains protected. The lives of our federal, state and
local agents inthe
fieldoftendependonit.
But as a classic military strategist once said, ^Tfyou try to protect everything,youwindupprotectingnothing."Themore secrets
you keep, the harder they are to keep Ican't tell you how many
t i m e s l h a v e emerged fromasecret briefing only to find out that
everything t h a t l h a v e just learned has already been in the news
paper.
A s a f o r m e r s h e r i f f , I h a v e vivid memoriesofthefederalgovernment tellingme that I could not access information that I needed
to do my job becauseit was classified orotherwise restricted. And
Ihavealso watchedas thefederalgovernmenthastakensensitive
information from the state and local law enforcement and treated
it without regard for its sensitivity.

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I amjust going to share areal brief story withyou. ^ears ago,
when we arrested our suspect in the Careen River murder case, a
serial murder casenationallyknown,internationally knownasone
of theworst serial murder cases i n t h e w o r l d o f 50 victims,the EBI
w a s a p a r t of that team They produced paperwork connected and
associatedwiththatcase.
Once the person was arrestedandcharged, ofcourse, there was
a requestby the defense attorney for information. The EBI would
not release the information to substantiate and help our case becausethey said it was classified.
Thefear there wasthis:Ofcourse,theyhadinformationthatwe
would havelost our case.Eventually,they came forward,presented
the information for discovery^ however, the fear was that because
of the state laws that existed in the state of Washington, everything they disclosed then would be subject to public disclosure
laws.So anything they released tous,the sheriffs office is required
by statelawtogivethattothenewsmedia. Sothat was their concern.
^ e h a v e a l o t of issues here to discuss today l a m not going to
finishthe rest of my statement ^ e are just happy to have you
here, and you know that we understand the problem, and we are
lookingtohelpyou find solutions.
Thankyou.
Ms. HARMAN. Ithanktherankingmember andnotethathisexperienceasasheriffisextremelyusefultothissubcommitteeas we
pursueissueslikethis.
The chair now recognizesthechairmanofthefullcommittee,the
gentleman from Mississippi, Mr. Thompson, for an opening statement.
Mr THOMPSON Thank you, Madam Chair I j o i n y o u i n w e l
coming our distinguishedwitnesses today to this important hearing
ontheproblemofoverandpseudoclassification of intelligence.
Information sharing between the federal government and its
state, local andtribalpartnersiscritical to making America safer,
but we won't get there if all we have is more and more classification and more and more security clearances for people who need ac
cess to that classified information.
The focus should be different. The federal government instead
must do allitcantoproduceintelligenceproducts that areunclassified. Unclassified intelligence information is what our nation's police officers,first respondersandprivate sector partners need most.
They havetoldmetimeandtimeagain that whatthey don't need
is information about intelligence sources and methods.
And I think all of us have been in enough briefings that were
somehow classified at varyinglevels only to see it on the evening
news andbe shockedthat, well, why wouldyoukeepit frommembers of Congress when a l l w e have to do is delay the briefings
hours andwe can see it^ That occurred last week.
I am sure Mr. Langevin understands very well, ^ e had a briefing that we were told that was top secret, took the BlackBerrys,
took the cellphones, and,loandbehold,itwasonthe5p.m.news.
Soto some degree,the over classification isaproblem.
If we are going to successfully address terrorism, then we have
to share the information in real time and trust our partners to

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some degree. I f we can't trust law enforcement, i f we can't trust
first responders, who canwetrust7
So I think it is a hearing that is pertinent to the challenge that
weface.Ilookforwardtothetestimonyofthewitnesses,and,obviously,thisisoneofmany,MadamChair l a m s u r e w e w i l l b e p a r
ticipating in over this session.
lyieldback.
Ms. HARMAN. I thank the chairman and would point out that
other members of the subcommittee can submit opening statements
for the record, under our rules.
Inow welcome our first panel of witnesses.
Our first witness, Mr. Bill Leonard, is the director of the Information Security Oversight Office at the l^ational Archives. Mr.
Leonard's office has policy oversight o f t h e entire federal governmentwide security classification s y s t e m ^ t h a t i s a m o u t h f u l ^ a n d
he reports directly to the president.
Hisofficereceiveshis policy and programguidancefrom the national Security Council. More than ^0 executive branch agencies
create or handle classified national security information, and Mr.
Leonard'sworkinthis capacity impacts all of them.
welcome,Mr.Leonard.
Our second witness is my Washington, D.C, neighbor and good
friend, Scott Armstrong. Mr. Armstrong is theexecutive director of
Information Trust, a nonprofit group that works toward opening
access to government information.
Hehasbeen inducted into the EOIAHall ofPame—congratulations^and was awarded the James Madison Award by the Amer
icanLibraryAssociationin 1992.Mr. Armstronghasbeena^ashington Post reporter and is the founder ofthe l^ational Security Ar
chive at Ceorge Washington University
Our thirdwitness,Meredith Euchs,servesas tbe generalcounsel
to the nongovernmental l^ational Security Archives. At the Archives, sheoverseasEreedomof Information Act, called EOIA, and
anti-secrecy litigation and frequently lectures on access to government information.
Shehassupervisedfivegovernment-wideauditsof federalagency EOIA performance and one focused on the proliferation of sen
sitive but unclassified information labels.
without objection, the witnesses'full statements willbeinserted
intherecord, a n d l would hopeyoucouldsummarizein5 minutes
orless—wehave alittle timer for yourbenefit—your written testimony, and then hopefully we can have a lively exchange of views.
Let's start with Mr. Leonard.
^TAT^M^^T
^. ^ I L ^ ^ A M
L^O^A^O,
Ol^^^T^^^
l ^ ^ ^ ^ M A T ^ ^ ^ ^ ^ ^ ^ ^ ^ T ^ ^ ^ ^ ^ ^ ^ ^ T ^^^^0^, ^ATl^^AL
A^^^l^^A^^^^^^^^A^Ml^l^T^Tl^^
Mr. LEONARD. Chairwoman Harman, Mr. Reichert, Chairman
Thompson and members of the subcommittee,Iwish to thank you
for holding this hearing this morning on issues relating to the very
realchallenge of over-classification.
The classification system and its ability torestrict the disseminationof information,theunauthorizeddisclosure of whichwould resuit in harm to our nation and its citizens, represents a funda-

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mental tool at the government's disposaltoprovide for the common
defense.
As with any tool, the classification system is subject to misuse
andmisapplication.^^en information isimproperlydeclassifiedor
not classified in the first place, although clearly warranted, our
citizens, our democratic institutions, our homeland security and our
interactions with foreign nations can be subject to potential harm
Conversely,toomuchclassificationorthefailureto declassify informationassoonasitnolongersatisfiesthestandardsfor continued classification unnecessarily obstructs effective information
sharing and impedes an informed citizenry, the hallmark of our
democratic formof government.
In the final analysis, inappropriate classification activity of any
nature undermines the integrity of the entire process and diminishes the effectiveness of this critical national security tool.
Inthis time ofconstantandunique challenges to our national se
curity,it is the d u t y o f a l l o f us engaged inpublicserviceto do everything possibletoenhancetheeffectivenessofthistool.Tobeef
fective, the classification process is a tool that must be wielded
withprecision.Eew,if any,bothwithinandoutside ofgovernment,
would deny that too much of the information produced by our agen
cies is classified.
In an auditof agency classification activity conductedby my office approximately one year ago, we discovered that even trained
classifiers, with ready access to the latest classification and declas
sification guides, and trained in their use, got It clearly right only
^4 percent of the time in making determinations as tothe appropriateness of classification This is emblematic of the daily chal
lengesconfrontingagencies whenensuringthat the3 million plus
clearedindividualswith at leastatheoretical ability to derivatively
classify information get it right each and every time
In response to the findings ofthis audit, lastyear I wrote to all
agency heads and made a number of recommendations for their
consideration. Collectively, these recommendations help preserve
the integrity of the classification system while at the same time re
duce inefficiencies and cost. I have included a list of these recommendations in my prepared formal testimony
Recognizing thatafocus of this hearing includes policies andpro
cedures for handling sensitive, unclassified information, it is important to articulate recent initiatives bythe president to ensure the
robust and effective sharing of terrorism information vital to pro
tecting Americans andthehomelandfromterrorist attacks.
To that end, the president has mandated tbe standardization of
procedures for designated marking and handlingsensitive but un
classified information across the federal government. Once imple
mented, our nation's defenders willbeabletoshare controlled,unclassified information more rapidly and confidently.
The existence of such an option should significantly reduce the
incentive to over classify information. That happens now, in part,
due to the absence ofadependableregimefortheproper protection
of sensitive informationwhich should not be classified.
Again, thank you for inviting me here this morning, Madame
Chair, and I would be happy to answer your questions or those
that the subcommitteemight have.

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[The statement ofMr. Leonard follows:]
PREPAREDSTATEMENT OP ^ . ^ I L L I A I ^ , LEONARD
MARCH 22, 2007

ChairwomanHarman,Mr. Reichert, andmemhers of thesnhcommittee, I wish to
thankyou for holding this hearing on issues relating to the very real challenge of
overclassification of informationwithintheFederalGovernment as well as for inviting me to testify today.
Ry section 5.2 of Executive Order 12^5^, as amended, ^^Classified National Seen,
rity Information^^ (the Orders, the President estahlished the organisation I direct,
the Information Security Oversight Office, often called ^^ISOO.^^ ^ e are within the
National Archives and Records Administration and hy law and Executive order (^^
u s e 2102 andsec. 5.2(h^ofE.O. I2^5^laredirectedhy the Archivist of the
United States.who appoints the Director of ISOO,siih^ect to the approval of the
President.We also receive pohcy guidance from the Assistant to the President for
National Security Affairs. Under the Order and applicahle Presidential guidance,
ISOO has stihstantial responsihilities with respect to the classification, safe^
guarding, and declassification of information hy agencies within the executive
hranch. Included is the responsihility to develop and promulgate directives implementing the Order.^ehavedonethisthronghlSOODirective No. 1(^2 CFR Part
200U(the Directives
The classification system and its ahility to restrict the dissemination of informa^
tion the nnanthori^ed disclosure ofwhich would result in harm to our nation and
its citizens represents a fundamental tool at the Government's disposal to provide
for the^^common defense.^^The ahility tostirprise and deceive the enemy can spell
the difference hetweensticcessand failure on thehattlefield. Similarly, i t i s nearly
impossihiefor our intelligence servicestorecrtiit human sotirces who oftenrisktheir
lives aiding our country or to ohtain assistance from other countries^ intelligence
services, unless snch sources can he asstired complete and total confidentiality.Likewise, certain intelligence methods can work only if the adversary is unaware of their
existence. Finally,the successful discourse hetween nations often depends upon con
fidentiahty and platisihledemahihty as the only way to halance competing and dl.
vergentnationalinterests.
As with any tool,the classification systemissiih,^ect to misuse and misapplication,
^hen information is improperly declassilied, or is not classilied in the first place
although clearly warranted, our citizens, onr democraticinstitntions, otir homeland
sectirity.andonr interactions with foreign nations can he snh^ect to potential harm.
Conversely, too much classification, the failure to declassify information as soon as
it no longer satisfies the standards forcontinned classification,or inappropriate reclassification, unnecessarily ohstmctselfectiveinformationsharingand impedes an
informed citizenry, the hallmark of onr democratic form of government In the linal
analysis,inappropriate classilicationactivityofanynattirennderminestheintegrity
oftheentire process anddiminishes theeffectivenessofthiscritical national secti^
rity tooLConsec^nently, inappropriate classification or declassification pntstoday^s
most sensitive secrets at needless increasedrisk.
The challenge of overclassilication is not new Over 50 years ago. Congress estah
lished the Commission on Government Security (known as the ^^^right Commission^^^. Among its conclusions, which were pnt forth in 1^55, at the height o f t h e
Cold^ar, was theohservation thatoverclassification ofinformation in and of itself
representedadanger to national security.This ohservationwas echoed in^nstahotit
every serious review of the classilication systems since to include: the Commission
toreviewDoD Security Policies and Practices (knownasthe^^StillwellCommission^^^
created in I^^5 in the wake of the^alker espionage case^ the^oint Sectirity Commission estahlished during the aftermath of the Ames espionage affairs and the
Commission on Protectingand Reducing Government Secrecy (otherwise known as
the ^^Moynihan Commission^^^, which was similarly estahlished hy Congress and
whichissiied its report in I^^7.
More recently, the National Commission on Terrorist Attacks on the United
States (the ^^^^11 Commission^^^, and the Commission on the Intelligence CapahilitiesoftheUnitedStatesRegarding^eaponsofMassDestriiction(the^^^MDCommission^^^ likewise identified overclassification ofinformation as a serious challenge
ItisE^ecntiveOrder 12^5^,asamended, that setsforththehasicframeworkand
legalatithorityhy which e^ecntive hranch agencies may classify national security
information. Pnrsnant to his constitutional anthority, and through the Order, the
President has anthori^edalimitednnmher of officials to apply classification to cer
tain national security related information In delegating classification authority the

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President has estahlished clear parameters for its use and certain hardens that
miisthesatislied.
Specifically,every act of classifying information mnst he traceahle hack to its origin as an explicit decision hyaresponsihie official who has heen expressly delegated
original classification authority. In addition, the original classification atithority
mnst he ahle toidentify ordescrihe the damage tonational security thatcottid reasonahly he expected if the information was snh^ect to nnanthori^ed disclosure Fnrthermore, the information mnst he owned hy, produced hy or for, or nnder thecontrol ofthe U. S. Governments and finally, it must fall into one or more ofthe categories of information specilicallyprovidedfor inthe Order.^
ThePresident has also spelled otitin the Order some very clear prohihitions and
limitations with respectto the nse ofclassification. Specifically, for example, in no
casecaninformation heclassifiedin order to conceal violationsof law,inefficiency,
oradministrativeerror,torestraincompetition, toprevent emharrassmenttoa person, organisation, oragency, or to preventer delay the release ofinformation that
does not ret:^nire protection in the interest of national security.
It is the responsihihty of officials delegated original classification anthority to estahlish at the time oftheir original decision the level of classilication (Top Secret,
Secret, and Confidential^, as well as the duration of classilication, which normally
will not exceed tenyearshnt in all cases cannot e^ceed25yearsnnless an agency
has received specilicanthori^ationtoe^tendtheperiod ofclassification.
Aslstatedearlier,the ahility and anthority to classify national seci^rity information is a critical tool at the disposal ofthe Government and its leaders to protect
onr nation and its citizens. In this time of constant and tini^ne challenges to onr
national secnrity, it is the dnty of all of US engaged in pnhlic service to do every
thing possihietoenhancethe effectiveness of this tool.Tohe effective,the classilicationprocess is a tool thatmnsthe wielded with precision. Few, if any, hoth within
and outside Government, wonid deny that too m^ch of the information produced hy
onr agencies is classified. In an audit of agency classilication activity conducted hy
my olfice approximately one year ago, we discovered that even trained classifiers,
withreadyaccesstothelatestclassilicationanddeclassificationgtiides,and trained
in their use, got it clearly right only
percent of the time in making determina
tions as to the appropriateness ofclassification.This is emhiematic ofthe daily challenges confrontingagencies when enstiring that the ^ million pins cleared individuals with at leasttheoretical ahilitytoderivatively classify information g e t i t r i g h t
each and every time.
In response to the findings of this audit, last yearlwrote to all agency heads and
made a nnmher of recommendations for their consideration. Collectively, these recommendations help preserve the integrity of the classification system while at the
same time reduce inefficiencies and cost. They included:
^ EmphasiB^ing to all authorised holders ofclassified information the affirmativeresponsihility they haveiinder the Order to challenge theclassificationstatns of information that they helieve is improperly classified (^I.^(a^ of the
Orders.
^Re^niring the review of agency procedures to ensure that they facilitate clas
sification challenges (^ I.^(h^of the OrderL In this regard,agencies were encouraged toconsiderthe appointment of impartial officials whosesole pnrposeis to
seekontinappropriateinstancesofclassificationand to encourage otherstoadhere to their individual responsihility to challenge classilication, as appropriate.
^ Ensnring that tonality classification guides ofadec^natespecilicity andclarity
are prepared and updated to further accurate and consistent derivative classiIicationdecisions(^2.2oftheOrderI.
^Ensnring the routine sampling of recently classilied information to determine
the propriety of classilication and the application of proper and fnll markings
(^5.^(d^(^^oftheOrderL Considerationshottldhegiven toreportingtheresnlts
of thesereviews to agency personnelaswellas tothe officials designated ahove
who would he responsihie to track trends and assess the overall elTectiveness
ofthe agency^s efforts and make ad,^nstments,as appropriate.
^ Pursuant to §1.4 of the Order, information shall not be considered for classification unless
it concerns: (a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including special activities), intelligence sources or methods, or
cryptology; (d) foreign relations or foreign activities of the United States, including confidential
sources; (e) scientific, technological, or economic matters relating to the national security, which
includes defense against transnational terrorism; (0 United States Government programs for
safeguarding nuclear materials or facilities; (g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security,
which includes defense against transnational terrorism; or (h) weapons of mass destruction.

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^ Ensuring that information is declassilied as soon as it no longer meets the
standardsforclassification(^:3.I(a^ of the Orders.
^ Ensnring thatprior to exercising thenationalsecnritye^emptionassetforth
in 5 U.S.C. 552h(I^ when responding to FOIArec^nests, that agency personnel
verify thatthe information involved clearly meets the standards forcontiniied
classilication irrespective of the markings, to include declassification instrnctions,contained onthe document.
Recognising thata focnsofthishearinginclndes policies and procednresforhandling sensitive nnclassified information, it is important to articulate recent initiativeshy the President toensnre the rohnst and effectivesharingof terrorism information vital to protecting Americans and theHomeland from terrorist attacks. To
that end, the President has promulgated a set of guidelines and re^nirements that
represent a significant step in the estahlishment of the Information Sharing Environment (ISE^ called for hy section lOI^ of the Intelligence Reform and Terrorism
Prevention Act of200^(IRTPA^.
Specilically,topromoteandenhancetheeffectiveandefficient acquisition, access,
retention, production, nse, management, and sharing of Sensitive Rnt Unclassified
(SRU^information,inclndinghomelandsecnrity information,lawenforcementinformation,and terrorism information, thePresidenthasmandatedthestandardi^ation
of procedures for designating, marking, and handling SI3U information across the
Federal Government. Aclear mandate for achieving this goal has heen laid out for
the entire Executive hranch and significant progress is nnderway to develop for the
President's consideration standardised procedures for handlingcontrolled nnclassilied information. Once implemented, onr nation^s defenders will he ahle to share
controlled nnclassified information more rapidly and confidently.The existence of
stich an option shonid significantly rednce the incentive to overclassify information.
This happens now,inpart,dne to the ahsenceofadependahleregimefor the proper
protection of sensitive informationwhich should not he classified.
Again,Ithank yon for inviting me here today,Madame Chairwoman,andlwonid
he happy to answer any questions that yon or the siihcommittee might have at this
time.

Ms.HARMAN.Ithank the witness,
^ow,we will hear from Mr.Armstrong.
STAT^^^^^OI^S^OTTA^^ST^O^^,^01^^^^,
l^^O^^T^OI^T^^ST
Mr ARMSTRONG Thank you, MadamChair Thankyou l a m
pleased to be able to discuss these issues with this subcommittee,
given the membershipofthe subcommittee and t h e f u l l committee
include many of the people that have provided the leadership, or
attempted to provide the leadership, to dig into these difficult questions onthis committee andother committees of the Congress.
l a m here on my own,of course,butlalsowould like to notethat
I participate in a dialogue, which is presently sponsored by the
Aspen Institute, between the senior journalists, editors, publishers
and high level U.S. government officials from various national security intelligence agencies
The purpose of the dialogue has been to address recurring concerns about the handling of classified information, the fact that
sensitive information can find its way into the major media and
could potential cause damage.
The discussions have included the attorney general, the director
of Central Intelligence,the deputydirector of l^ational Intelligence,
rankingmembers from the l^ational Security Council, the department of defense, the l^ational Security Agency, the PI3I, the CIA,
theOepartment of Homeland Security andtheOepartment ofJustice.
The dialogue is continuing with a variety of initiatives that I
hope will further involvemembers ofthis committee andyour col-

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10

leagues and members ofyour staff, and we will be in consultation
withyou onthat issue.
Iwould like to note three major areas today out of my testimony
Twenty-two years ago, in I^^5, when I left the Washington Post,
to found the l^ational SecurityArchive,Iwent to the manwho was
then considered the maven of secrecy in the Reagan administration,Oeneral RichardStillwell, andldevelopedaninterestingand
productive dialoguewithC^eneralStillwellwhowaschairingacommission to examine systemic vulnerabilities in the classification
system
At that time, the Reagan administration's concern was not so
much news media leaks but the fact that there were significant
leaks in the form of espionage. Oeneral Stillwell not only quoted,
andusually misquoted,asentencein Supreme Court justice Potter
Stewart's concurrence in the Pentagon Papers case, ^^^hen everythingis classified, then nothingis classified,"but he finished that
sentence, ^^And the system becomes one to be disregarded by the
cynical or the careless and to be manipulated by those intent on
selfprotectionorselfpromotion."
Like justice Stewart, Oeneral Stillwell believed that the hallmark o f a t r u l y effective internally security systemwould be the
maximum possible disclosure, recognizing that secrecy can best be
preservedonlywhencredibility is maintained.
Regrettably,the system then pertainedasystemic use of special
access programs and other compartmented intelligence controls by
those that have nowbeen extended evenon classifiedinformation
and created a labyrinth of security measures, often unaccountable
and sometimes wholly unauthorized. That situation has not
changed in the ensuing 20 years
My experience has reinforced the notion that government needs
to spend less energy on calculating how to punish unauthorized
disclosures of politically sensitive information to the news media
and more on distinguishing the truly sensitive information which
mustbe protected. Once thatinformation is identified as properly
warranting protection, government officials and the news media
have shownawillingness to honor reasonable requirements.
Thesecondissueisthequestionthatthis Congress addressed—
the House addressed in 2002 when it passed the Homeland Security Information Sharing Act, whichbecamepart of theHomeland
SecurityAct of 2004.It mandated the creation ofaunique category
ofinformation, known as sensitive homeland security information,
which was sensibly designed to allow this necessary sharing of in
formation with state and local officials while withholding it from
the general public.
Thisdesignationhasprovendifficult for the executives to implement, so difficult that in fact it went in a difi^erent direction and
the mandate instead became to disperse information control authority across of broad range of e:^ecutive agencies. This resulted
in adisjointed anduncoordinatedproliferationofsensitivebut unclassified designations to protect poorly defined categories of infer
mation.
In one instance, the department ofHomeland Security drafteda
draconian nondisclosure agreement designed to apply the restric-

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II

tions on tens of thousands of federal employees and hundreds of
thousands, potentially, of state and local first responders.
Although it was only enforcedbriefiy,thisl^OAwasmoresevere
than l^L^A'seffect for sensitive,compartmented information and for
a variety of controls over the most sensitive intelligence informationthe government has.
^ h i l e it has been withdrawn, i t i s an indicator ofthe extent to
whichthere has been littleprogress.
Lastly,the l^ational Intelligence Reform Act of 2004 provided an
other challenge which the administration found wanting. Congress
providedabroad,centralizedpower for thenewdirector of national
intelligence and urged the new 01^1 to createatearline report sys
tem by which intelligence gathered by an agency is prepared with
the information relating to intelligence sources and methods is easily severed but for the reportto protect such sources and methods
fromdisclosure.
The prospect of suchatearline encouraged many observers to believe the classification system could be improved by concentrating
on theguidelinesfor protecting welldefined sources and methods.
8y making t h e r e f i n e d d e c i s i o n s t o p r o t e c t t b a t w h i c h t r u l y re
quires protection, more of the remaining information would be
available for sharing within the intelligence community,as well as
with state and local officials charged with homeland security re
sponsibilities. They were naturally abenefitforthepublic andthe
press as this information, other information, was decontrolled.
Ms. HARMAN. Mr. Armstrong, if you could summarize now, we
would appreciateit.
Mr. ARMSTRONG. Increasingly, officials in certain departments
must greatly risk their security clearances and potentially their ca
reers and their family's financial security in order to correct and
guidepublictopublic record.
It is myhopethat rather than attempt torepairthepresent system of over classification to the public, that the public, the news
media, the Congress and the intelligence community would benefit
more from the specification of rigorous and tight definitions of
sources and methods inaccord with the tear line processingof intelligence in order to maximize information sharing while protecting thenation's secrets.
Ms.HARMAN.Thank youvery much.
Msl^uchs7
STAT^^^TO^^^^^O^T^l^^C^^S,^^^^^ALeO^^S^L,T^

^ATio^AL s^e^^iT^ A^e^r^, C^^O^^^ ^ASm^^TO^
^^rv5:^s^^

MsPucHsThankyou
Chairman Harman, Ranking Member Reichert and members of
the subcommittee, thank you for having me appear today.
After the September I l t h attacks on the United States, there
weremanysignsthatofficialsecrecy would increase Some of it
was legitimate,outofconcern about risksposedby poorly safe
guarded government information. In addition, in March 2002,
^ h i t e H o u s e C h i e f o f Staff AndrewCard issuedadirective tofederal agencies, requesting a review o f a l l records and policies con-

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12

cerning the protection of sensitive but unclassified information,
also called S8U
This memorandum spurred agencies toincrease controls on information.
Mr. Leonard and Ms. Harman have already talked about the
classification system and some of the statistics regarding t h a t . l a m
going tofocusontheSI3Usystem where whileweidentified2^dif
ferent information labeling standards and CAO identified 5^, I
have heard fromthe Office of the Program Manager of the informa
tionsharingenvironment that theyhaveidentifiedat least 100 different socalled safeguarding labels.
Thereisnowaytodeterminehowmany recordsarelabeled with
these safeguarding controls, because agencies do not track their use
ofthese labels.
^ h e n we issued our report a year ago, we identified a number
of problems posed by these policies. Since that time, the Oovernment Accountability Office and the program manager ofthe InformationSharing^nvironmentthemselveshavee^pressed thesame
concerns. I am going to quickly list them, and my written testimony gives some additional detail.
^irst, there is no monitoring of the use of safeguard labels. At
many agencies, there are no limits on who can put a safeguard
labelonthe information,and,indeed,at some agencies,that means
hundreds of thousands of people are able to put these labels on.
There is no time limit for how long the label lasts. I^ew agencies
provide any procedure forthe labels to be removed. I^ew agencies
include restrictions that prohibit the use of labels for improper purposes, including to conceal embarrassing or illegal agency actions.
Agencieshaveconfiicting policies ontheintersectionoftheselabels
and the Preedom of Information Act, but evidence certainly sug
gests that theselabels aroused toincreasewithholding of information.
These labels likely increase the cost of information security,and
there is noconsistency amongagencies abouthow to use these labels.So it seems likely that they inhibit information sharing.
Pocusing just on the three major concerns that my organization
has, the absence of reportingmechanisms for sensitivebut uncontrolled markings makes any assessment of the extent to which a
policy is being useddifficult, i f not impossible.
because safeguardingsensitive unclassified information impacts
safety,security,budget and informationdisclosure,allofwhichare
important national concerns, there ought to be some sort of overarching monitoring.
Second, in orderto protectthe important role that public access
has played in government accountability,it is important thatasys
tem for challenging the use of these labels be established.
Third,thisunregulateduseofsafeguardinglabelsinhibits information sharing because the systems are sprawling in their scope
anduncoordinated, they setuproadblocksfor sharing L a c k o f
trust in the system hkely leads to more classification, which also
limits dissemination of the information.
I would like to quickly touch on what progress has been made
within the government. Mr. Leonard referred to this in his statement. Asyouknow, Congress required the presidenttoimplement

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andinformationsharingenvironmentwiththelntelligenceReform
andTerroristPrevention Actof 2004. Pursuanttothat, the Office
ofthe Program Manager of thelnformation Sharingl^nvironment
was established to assist in the development of the environment.
A report and implementation plan for the information sharing
environment was requiredwithinoneyearofenactment of thelaw.
President^ush issued a memorandum on December 1^, 2005 that
set up this office, and specifically directed departments and agencies to standardizedprocedures for handling SPU.
The resulting workinggroup completed an inventory of designations in March 200^, and there should have been a recommendation for submission tothe president by ^une 200^ on standardizat i o n o f S P U p r o c e d u r e s . ^ e l l , i t i s n o w M a r c h 200^, and, asfar as
Iknow,that hasn't happened.
Part ofthe problem maybe that these legislative mandates are
imposed on an executive branch that does not want Congress to
interfere and is not as concerned as I would hope about government accountability. And w h i l e l am reluctanttoe^press that sort
of a sentiment, the lack of willingness by the executive branch to
respondis evidenced bythe refusal ofthe Office ofthe director of
l^ational Intelligence to participate i n a M a r c h 200^ report by the
Oovernment Accountability Office about this very matter
In itsreport,OAO noted that the OOl^I, the Office of theOirector of l^ational Intelligence,declinedto comment onthe draft,stating that review of intelligence activities is beyond OAO's purview
I k n o w that we arerunning short of time l a m g o i n g t o j u s t
quickly raise three concerns about the process. I met, along with
severalother people, with AmbassadorMcl^amara,whoisnow the
programmanager, and I was very impressedby him andthe work
that theyhave done,andlthink that theyhavedoneagreat analysis. However, thereis nothingintheprocess that suggests tome
that we are quickly moving to standardization ofSPU labels
^ h i l e they have done an analysis, they were supposed to have
submittedarecommendationtothe^hiteHousein^anuary 200^.
Thatmay haveoccurred. I f i t d i d , i t h a s n ' t b e e n m a d e p u b l i c , and
having public review of that is absolutely critical.
Secondly, theprogrammanager's effort isfocusedoninformation
related to homeland security, law enforcement and terrorism, but
this problem of S8U is far broader,and the category of information
that affects our security is even broader than that
Placement of the program manager atthe Office ofthe L^irector
of^ationallntelligencepossiblylimitsthelikelihoodthatagovernmentwidesolutionwill be considered.
And, finally, there just doesn't seem to be a schedule in place.
Theyhavecollected andanalyzedscoresofinformationcontrolpolicies, theyhave many ideas abouthow t o f i ^ t h e problem,butthey
have beenperpetuallybehind schedule.
l a m b o p e f u l my testimony t o d a y h a s b e e n h e l p f u l , a n d I a m
happy to take any questions.
Thankyou
[The statement of Ms. Puchs follows:]

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14
PREPARED STATE^E^TOE MEREDITH FUGHS
MARCH 22, 2007
Chairwoman H a r m a n , Ranking Memher Reichert and Memhers of the Snhcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment, I
am honored to appear hefore yon today to talk ahont the growing prohlem of govern
ment secrecy and the danger I t poses to o n r s e c n n t y .
l a m t e s t i f y i n g o n h e h a l f o f t h e N a t i o n a l Secnrity Archive (the^^Archive^^^,a nonp r o f i t researchinstittite and leading nser of the Freedom of I n f o r m a t i o n Act (FOIA^.
We pnhlish a wide range of docnment sets, hooks, articles, and electronic hriefing
hooks, all o f w h i c h a r e h a s e d o n r e c o r d s o h t a i n e d n n d e r t h e FOIA. I n I ^ ^ ^ , we won
t h e p r e s t i g i o n s G e o r g e P o l k ^ o n r n a l i s m a w a r d for ^^piercingselfserving veils o f g o v ernment secrecy^^ and, i n 2005, an Emmy award for outstanding news research.
I n my five years at the Archive, I have overseen live andits of federal agency
F O I A processing. Most relevant to this hearing is the report we issued i n March
200^ entitled:^^Psendo^Secrets:AFreedomof Information A u d i t of t h e U . S . G o v e r n ment^sPolicies on SensitiveUnclassified Information.^^
A f t e r the Septemher I I , 2001, attacks on the U n i t e d States, there were many
signs t h a t official secrecy would increase. The attacks themselves led t o a w a v e of
legitimate concern a h o n t t h e r i s k s p o s e d h y poorly safeguarded government informat i o n . A d d i t i o n a l l y , i n March 2002 ^ h i t e H o n s e Chief of Staff Andrew H . C a r d issued
a directive to federal agencies requesting a review o f a l l records and policies concerning theprotectionof^^sensitivehtitnnclassified^^information.This memorandum
spnrred agencies toincrease controls o n i n f o r m a t i o n . Further, d u r i n g times of war
or n a t i o n a l c r i s i s , the government's tendency t o k e e p s e c r e t s always hecomesmore
pronounced and pervasive. Thus, the U.S. entry i n t o h o s t i l i t i e s i n Afghanistan and
I r a ^ as part o f t h e Glohal ^ a r on Terrorism necessarily led to an increase i n the
c r e a t i o n o f secrets.
The availahle statisticsshow that since theSeptemher I I attacks on the U n i t e d
S t a t e s , t h e r e h a s h e e n a d r a m a t i c n p s n r g e i n government secrecy. Classification has
mnltiplied, reaching I ^ . 2 m i l l i o n classification decisions i n 2005, nearly donhle the
nnmher i n 2 0 0 I . Officials t h r o n g h o n t t h e m i l i t a r y a n d i n t e l l i g e n c e s e c t o r s h a v e a d m i t t e d that mnch o f t h i s c l a s s i f i c a t i o n activity isnnnecessary. FormerSecretary of
D e f e n s e D o n a l d R n m s f e l d a c k n o w l e d g e d t h e p r o h l e m i n a 2005 i^o^^.^^r^^I^o^r^^^
o p e d : ^^I have longhelieved t h a t t o o m n c h material is classified across the federal
government a s a g e n e r a l m l e . . . .^^^The extent o f o v e r c l a s s i f i c a t i o n i s s i g n i f i c a n t .
Under repeated i^nestioning f r o m memhers of Congress at a hearing concerning
over-classification,Deputy S e c r e t a r y o f D e f e n s e f o r C o n n t e r i n t e l l i g e n c e a n d S e c n r i t y
Carol A . H a a v e e v e n t n a l l y conceded that approximately 5 0 p e r c e n t o f c l a s s i f i c a t i o n
decisions are over-classifications.^These opinions echoed t h a t o f then^Chair of the
House Permanent Select C o m m i t t e e o n Intelligence Porter Goss, who told t h e ^ ^ I I
Commission, ^^we overclassify very hadly. Thereis a lot of gratuitous classilication
going o n , a n d t h e r e a r e a v a r i e t y o f r e a s o n s for them.
Alongside traditional classification a r e a p l e t h o r a o f n e w non-statntorylahels that
are heing apphed to protect information that is deemed sensitive htit nnclassified.
S o m e e s t i m a t e s c o i i n t o v e r lOOdifferentso-called^^safegnarding^^lahelsfor records.
T h e r e i s n o way to d e t e r m i n e h o w m a n y recordsarelaheled w i t h safegnardingcontrols,however,hecanse agencies d o n o t t r a c k t h e i r n s e of theselahels.
A t the s a m e t i m e t h a t the indicators all started t o p o i n t to increasing secrecy.the
nnmerons investigations into the Septemher I I attacks on the U n i t e d States each
conclnded t h a t excessivesecrecy interfered w i t h t h e d e t e c t i o n a n d p r e v e n t i o n o f the
attacks.mother r e p o r t s , i n c l n d i n g o n e h y the Government A c c o n n t a h i l i t y O f f i c e a n d
I Donald Rumsfeld, War ofthe Worlds. Wall St. J., July 18, 2005, at A12.
'^Subcommittee on National Security, Emerging Threats and International Relations of the
House Committee on Gov't Reform Hearing, 108th Cong. (2004) (testimony of Carol A. Haave),
http://www.fas.org/sgp/congress/2004/082404transcript.pdf; See id., (Testimony of J. William
Leonard, Director of ISOO) ("It is my view that the government classifies too much informa'9/11 Commission Hearing, (Testimony of then Chair of the House Permanent Select Committee on Intelligence Porter Goss) (2003), http://www.9-llcommission.gov/archive/hearing2/9llCommission Hearing 2003-05-22.htmpanel two.
••As the staffdi rector of the Congressional Joint Inquiry on 9/11 found, "Itjhe record suggests
that, prior to September l l t h , the U.S. intelligence and law enforcement communities were
fighting a war against terrorism largely without the benefit of what some would call their most
potent weapon in that effort: an alert and informed American public. One need look no further
for proof of the latter point than the heroics of the passengers on Flight 93 or the quick action
of the flight attendant who identified shoe bomber Richard Reid." Similarly, the entire 9/11
Commission report includes only one finding that the attacks might have been prevented:

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o n e h y thesnccessorhody to t h e ^ / I I Commission, have decried the delay i n e s t a h l i s h i n g a w o r k a h l e information sharing environment.^^
Against this hackgronnd, the National Secnrity Archive conducted an extensive
andit of the actnal policies n s e d h y agencies to ^^safegnard^^information.^V^e filed
targeted F O I A requests that identified information protection policies of ^7 ma^or
agenciesandcomponents. ^ e o h t a i n e d a n d r e v i e w e d 2 ^ d i s t i n c t p o l i c i e s for protection of sensitive nnclassilied information, many of which allow any employee i n the
agency to designate sensitive nnclassified information for protection, hnt few t h a t
provide any procednre for the lahels to he removed. O n l y a s m a l l n n m h e r of policies
inclt^ded restrictions that prohihit the nse o f t h e lahels for improper pnrposes, i n clnding to conceal emharrassing or illegal agency actions, or i n e f l i c i e n c y . F n r t h e r ,
and perhaps most trotihling from a sectirity perspective, was the remarkahle lack
of consistency among agencies as to how to nse these lahels. Most o f t h e policies
were vagne,open-ended,or hroadly applicahle, t h n s r a i s i n g c o n c e r n s a h o n t i n f o r m a tion sharing, the impact of snch designations on access to i n f o r m a t i o n , free speech,
and citizen participation in governance. Given the wide variation of practices and
procednresas w e l l a s s o m e o f t h e i r f e a t n r e s , i t i s p r o h a h l e t h a t t h e s e p o l i c i e s i n t e r fere w i t h interagency information sharing, increase the cost of information secnrity,
and l i m i t pnhlic access to v i t a l i n f o r m a t i o n .
Fnrther, we conclnded that there are almost no incentives to control the nse or
misnse of these safegnarding lahels. Unlike classified records or ordinary agency
records snh^ect to FOIA, there is no monitoring of or reporting on the nse or impact
ofprotectivesensitivennclassifiedinformationmarkings. Incomparison.itisnsefnl
to look to the formal classification s y s t e m , w h i c h is governed h y E x e c t i t i v e Order
I 2 ^ 5 ^ , a s amended, and IS managed a n d m o n i t o r e d h y t h e l n f o r m a t i o n Secnrity
Oversight Office (ISOO^ at the National Archives and Records A d m i n i s t r a t i o n
(NARA^. ISOO pnhlishes an annnal report to the President i n which i t ^nantilies
the nnmher ofclassification and declassification decisions,the n^mher of individnals
w i t h anthority to classify material, and the type of information t h a t is heing classi
fied. Snch reports enahle the Execntive Rranch and Congress to monitor the costs
and henelits of the classification system and to identify trends that may snggest the
need to reform the system.
The ahsence o f r e p o r t i n g m e c h a n i s m s for s e n s i t i v e h n t n n c l a s s i l i e d control markings makes any assessment of the extent to w h i c h a p o l i c y is heing n s e d d i f f i c n i t ,
i f n o t impossihie. Recanse safegnarding sensitive nnclassified information impacts
safety, secnrity, hndget and information disclosnre—all important national conc e r n s — s o m e f o r m o f o v e r a r c h i n g monitoring o f a l l i n f o r m a t i o n control w o n l d h e v a l nahle.
N o r i s t h e r e a procednre f o r t h e p n h l i c t o c h a l l e n g e p r o t e c t i v e m a r k i n g s . For classilied i n f o r m a t i o n , the secnrity classilication system provides precise l i m i t s on the
extent and dnration ofclassilication as well as a s y s t e m fordeclassilication, inclnding pnhlic re^nests for declassification. For non-secnrity sensitive i n f o r m a t i o n , the
F O I A p r o v i d e s a relatively clear a n d n s e r - f r i e n d l y process f o r t h e pnhlic t o s e e k a c cesstoinformationheldhythegovernment.Sensitivennclassifiedinformation,however, falls into a hiack hole. Rased on anecdotal i n f o r m a t i o n , we helieve that information previonsly availahle nnder F O I A or on nnrestrictedV^eh sites may no longer
he availahle to the pnhlic. ^ e t , t h e r e is v i r t n a l l y no opportnnity for the pnhlic or
other government personnel to challenge a decision to mark a docnment for protection as SRU, FOUO, or SSI A c c o r d i n g l y . i n order to protect the important role t h a t
pnhhc access has played i n government acconntahthty,it IS important t h a t a s y s t e m
for challenging the nse of sensitive nnclassified i n f o r m a t i o n m a r k i n g s he estahlished
at each agency o r , a l t e r n a t i v e l y , t h a t F O I A procednres he ad^nsted to connteract the
chilling effect these markings may have on disclosnre nnder FOIA.
"publicity about Moussaoui's arrest and a possible hijacking threat might have derailed the
plot." Final Report of the National Commission on Terrorist Attacks Upon the United States,
at 276 (emphasis added).
•""'In January 2005, the Government Accountability Office (GAO) added "Establishing Appropriate and Effective Information-Sharing Mechanisms to Improve Homeland Security" to its
High Risk List, stating that they were "designating information sharing for homeland security
as a government-wide high-risk area because this area, while receiving increased attention, still
faces significant challenges" (GAO-05-207). On December 5, 2005, the 9/11 Public Discourse
Project, the successor body of the 9/11 Commission, issued its Final Report on 9/11 Commission
Recommendations. Important areas on information sharing, including "incentives for information sharing" and "government-wide information sharing," received a D in the scheme of letter
grade assessments.
("The complete audit report is av9il9ble 9t http://www.gwu.edu/~nsarchiv/NSAEBB/
NSAEBB183/press.htm.

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Congresshegantorespondtotheseprohlemsfromtheontset.I^oththe Homeland
SecnrityActof 2002 and the Intelligence Reform and Terrorism Prevention Act of
200^ (IRTPAl directed the development of policies for sharing classified and sensitive hnt nnclassilied information. IRTPAre^nires the rapid implementationof an
informationsharingenvironmentdSE^tofacilitatethegovernment-widesharingof
information ahont terrorist threats. As the snhcommittee is aware, the office ofthe
Program Manager of the ISE was estahlished pnrsnant to IRPTA to assist, in consnltation the Information Sharing Conncil (ISC^, in the development ofthe ISE. A
report and implementation plan forthe ISE wasret^nired within oneyearofenactment of IRTPA. President Rnsh issned a Memorandnm on Decemher I ^ , 2005, directing federal departments and agencies to standardise procednres for handling
SRUinformation.
The President^sDecemher 2005 Memorandnm setting tip the office of the Program
Manager containedspecificdirectionrelatedtothestandardi^ationofSensitiveRnt
Unclassilied(SRU^ information. Specilically, Gnideline ^ re^nired each department
and agency to inventory existing SRU procednres and their nnderlvinganthorities
across the Federal government, and to assess the elTectiveness ofthese procednres
and provide this inventory and assessment to the Director of National Intelligence
( D N I l f o r transmission totheSecretary of HomelandSecnrity and the Attorney
General. The working gronp completed an initial inventory of SRU designations in
March 200^.The original schednlewonid have resnltedinrecommendations for snhmission to the Presidentregardingthe standardisation ofSRU procednres hy ^nne
200^. More than5years after the Septemherll attacks, however,there still is no
government-wide plan to standardise information controls and ensnre government
acconntahility
Part of the prohlem may he that these legislative mandates are hetng imposed on
an execntive hranch that does not appreciate Congressional interference and does
not seemconcernedahont government acconntahility.I amrelnctantto express snch
strong sentiments, hnt the lack of willingness hy the Execntive Rranch to respond
to Congresss mandates is strongly evidenced hy the refnsal ofthe Office ofthe Director ofNational IntelligencetoparticipateinaMarch 200(3reporthy the Government Acconntahility Oflice ahont this very matter In its report, GAO noted that the
ODNI ^^declined to comment on IGAO^sl draft report, stating that review of intelligence activities is heyondGAO^spnrview.^^
Fnrther.theresponsthtltty for overseeing the development ofacomprehensive
plan has heen shifted from office tooflice^ it was first lodged atthe Office of Management and Rndget, then at the Department of Homeland Secnrity and now in the
Office of theDirectorofNationalIntelligence.Thns,despitethenrgentneed to hettercoordinateinformation sharing,it hastaken some time forthe program to find
ahome.^hether the ODNI is the proper home remains to he seen, especially in
light of that officers nnwilhngness to he snh^ected to congressional scrntiny.Another
delay was cansedhy the c^tiickdepartnre of thefirstProgramManager for the Information Sharing Environment (ISE) in .lannary 2001^. He was replaced hy Amhassador Thomas McNamara.
I had the opportnnity, along with several other open government advocates, to
meet with AmhassadorMcNamara on Novemher 20, 200(^. AmhassadorMcNamara
descrihed for onr gronp the challenges that the office ofthe Program Manager is
facing in rationaliB^ing the system for safegnarding records. They mnst ohtain the
cooperationofmanycommnnities of interest,consider mnltiplensers of information,
and consider the concerns of hoth governmental and non governmental entities. To
date, they have only analysed the prohlem The Novemherl^, 200^, Report of the
Program Manager, Information Sharing Environment, indicates that the interagency Information Sharing Conncil (ISCI created to develop an implementation
plan for thelSE,along withstandardi^ingprocednresfor sensitive hntnnclassified
information, has now created a Coordinating Committee which will snhmit recommendations for SRU standardisation throngh the ^hiteHotise policy processB^e
weretoldthatarecommendation wonldhetransmittedtothe^hiteHonsein^annary 2 0 0 7 , h n t l a m not aware whether thishashappenedor whether therec
ommendation willeverhemadepnhlic.
For my own p a r t , I w a s impressed with AmhassadorMcNamara^s work to date,
hnt I was not left with any strongimpression thata transparent, government-wide
information-sharing plan willemergeanytimesoon. First, therearemanystepsin
the process that do not yet appear to have taken place.Arecommendation has yet
to he circniated for review hy interested parties. Any recommendations shonid he
made availahle to the pnhlic for comment. Even the general ontline of a program,
which was previewed to me and others in Novemher 200(i, raised several concerns
ahont transparency, government acconntahility,and appropriateprocednres. Oncea
recommendation is accepted, then an implementation plan will he necessary. It is

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possible that there will need to he statutory or regulatory changes to facilitate implementation. There certainly will be budgetary issues raised by any recommendation and plan for standardization.
Second, the focus of the Program Manager's effort is solely on information related
to homeland security, law enforcement and terrorism. The problem of sensitive unclassified information is far broader, and even the category of information that affects our security is hkely more extensive than is covered by the Program Manager's
mandate. Placement of the Program Manager at the ODNI further limits the likelihood that a government-wide solution will be considered or emerge as an outgrowth
of the process. Because of the placement within the ODNI, the program manager
is likely to face great challenges in implementing an information sharing network
that includes agencies outside the intelligence community. Issues of information security, information sharing, and public access to information should not he addressed in a piecemeal manner. 'There are best practices in some agencies that
should he shared, as well as lessons to he learned about the costs and benefits of
secrecy and disclosure. If the problem of information controls interfering with information sharing is ever to he solved, it will require a government-wide commitment.
Third, there does not appear to be any schedule in place for moving the process
forward. The fact that the Program Manager has collected and analyzed scores of
information control policies is progress. That analysis surely offers insight into what
works and what does not. Now the analysis must be translated into a plan with
strict deadlines and funding in order to make implementation a reality. Given that
the project has been perpetually behind schednle, there is cause for concern about
the development ofan actionable plan and implementation.
Unnecessary secrecy has been on the rise since September 11, with the result of
threatening our safety and national security while impeding the process of democracy and the effective functioning of government. There is no time for tnrf wars or
bureaucratic inertia. We are long overdue for solving the challenges of information
sharing and overcoming the strain on government accountability brought about by
excessive secrecy. SBU designations have been noted hy government authorities as
a major impediment to information sharing, yet no solution to the problem has been
developed. I am hopeful that my testimony today offers a rationale and a sense of
urgency for instituting stronger measures to encourage needed reforms in information-control programs across the federal government. I am grateful for your interest
in these issues and am happy to respond to any questions.

Ms. HARMAN. I thank the three witnesses. Your testimony is very
helpful.
And, Mr. Leonard, nobody doubts your good faith and hard work,
but I do question whether we are making much progress rolling a
big rock up a steep hill.
Let me start there. As I said, I spent 8 years on the House Intelligence Committee, and I spent many years on virtually every security committee in this House since being elected in 1992. I do respect the need to protect sources and methods. I have never, so far
as I know, ever compromised a source or a method, and I understand that real people die i f that happens, and we close down our
ability to get sensitive information in the future, so we should
never do that.
But that is the purpose of our classification system. The purpose
of our classification system is not to deprive the public of information it should have, and, surely, it is not to deprive our first preventers on the ground of information they need to know what to
look for and what to do.
Does anyone disagree with what I just said?
Mr. LEONARD. Absolutely not. Madam Chair.
Ms. HARMAN. I am sure you don't.
I also share Ms. Fuchs's opinion of Ambassador Ted McNamara,
with whom I have met. His title is program manager. Information
Sharing Environment, and he reports to the director of national intelligence, Mike McConnell. He is a good man, and he is trying to

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shift a lot of information out o f t h e classification system into this
SBI^system.
But, a g a i n , I a m worried that we are just going to replace one
protection systemwith another protection system.
Does anyone disagree with that thought?
N o O k a y B ^ e l l , n o w I a m really getting discouraged
So wheredoIcomeout?Iamintriguedby Mr. Armstrong'ssuggestion at the conclusion ofhis t e s t i m o n y ^ a n d l k n o w l w a s rush
ing you, b u t l a m trying to be fair all our members and here and
to our secondpanel.Ithinkwhat you said is, weneedto start over,
^ e can't take thisjerry rig system and fi^ it I t is too complicated,
and we aren't going to fi^ it, we are just going to move the bo^es
around.^ereallyought to think throughwhat our goals andobjec
tives are and start over.
Is that what you said?
Mr. ARMSTRONG. I^recisely.That is thelessonof 50 years of na
tional security controls, ^5 years since the I^entagon I^apers,
years since^atergate and 22 years, 25 years ofthese three com
missions thathave ensued. All have comebackto the same things
If we want to protect important information,we must identify it,
isolate it, understand why it needs to be protected and commu
nicate that to government employees. They will respect it, the press
will respect it, in turn, and you will not have dangerous leaks of
national security information.
You will also have an enormous amount of information that is
not contained in those categories that will freely available for pub
lie policydebate and discussion.That is what we need.
Ms. HARMAN. ^ e l l , let me ask the other two witnesses to re
spond to this innovative and, I t h i n k , potentially visionary sugges
tion l a m not sure we are up to this, b u t l j u s t want to ask what
you think about It It IS basically to start over, to identify what we
need to protect.
And, a s l h e a r d you, Mr Armstrong, you were saying i f we do
this right, then we actually discourage and stop leaks because information that should be in the public domain gets there, and we
should presume we have patriots in our press corps who work for
government, who serveinCongressandelsewherewhowillprotect
secrets that they understandclearlyneedto be protected.
So my question, let's start with you, Mr Leonard, is, what do you
think about this idea of starting over to isolate what truly needs
tobeprotected?
Mr. LEONARD, ^ e l l , clearly, the challenge of over-classification,
as I included in my prepared testimony. As longago as the 195(^s,
the b r i g h t commission, established by Congress at the height of
the Cold ^ar, found that over classification was a threat to national security.
Thelargestproblem,asIsee,withthe current framework is that
itistiltedtowardencouragingpeopletowithhold.Everyoneis very
mindful of the fact that they can be disciplined, fired, maybe even
criminally prosecuted for unauthorised disclosure Even though the
policy makes anaffirmative—atleasttheclassificationimposes an
affirmative responsibility on cleared individuals to challenge inap
propriate classifications, quite f r a n k l y , I a m never aware of that
ever happening.

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And, to me, it is the fiipside of the coin^ Yes, we have to hold
people accountable for inappropriate disclosures, but unless we
similarly have a system to hold people accountable for inappro
priate withholding or hoarding of information, the system will re
maindysfunctional.
Ms HARMAN Thank you very much.
My time is expiring, so, Ms Euchs, i f you have any comments,
pleasemakethemnow.
Ms. EUCHS. I^ight. I mean, I would second what Mr. Leonard
s a i d l t h i n k that the secrecy isarefie^ive response by people with
i n t h e government, and i t i s going t o b e h a r d to fightthat. There
should be better training, and the incentives have to be changed.
And the incentives are changed,Ithink, by doing oversight, having
audits ofsecrecy decision making,makinglegalremediesavailable
to the public, having whistleblower protection and having leader
ship onthe issue.
Ms. HARMAN. Thank you very much.
The chair now recognises Mr.I^eichertfor5minutes.
Mr I^EICHERT Thank you. Madam Chair, and, again, thank you
forbeingherethismorning.
Mr.Leonard,you madeastatement,Ithink it was you,that said
percent o f t h e time, ^ h y
that trained people only get it right
is that?
Mr. LEONARD. I t barkens back to the point I just made, Mr.
I^eichert. I was in a similar forum with a very senior official from
the Defense Department once and she indicated, I think, a very
prevalent line of thought, and that is, especially in time of war,
peoplewant to err onthe side ofcaution.
And I am dumfounded by that approach, because, first of all, I
never understandwhywewanttohave error aspart ofany implementation strategy. But besides that, i f we are ever going to get
i t r i g h t , to me, in time o f w a r isthe time wehave to g e t i t r i g h t .
As Ms Euchssays,we have to change the incentives and have
peoplerecogni^ethattheinappropriate withholdingor hoardingof
information can have just as much asadeleterious impact on the
national security as any unauthorised disclosure can
Mr I^EICHERT Mr Armstrong, would you say that that is true?
Inyour statement, you mentioned sensitive homeland security information for state and locals don't get to the state and locals. Is
that part of the problem that Mr. Leonard is talking about?
Mr. ARMSTRONG. I believe it is. I think there are two reasons.
Cneis the bureaucraticdefaulttocaution, that i t i s easier to con
trol than i t i s to release. But, secondly, control has its own value
and purpose. It allows a manipulation of the debate. It prevents
people from havingamore open and participatory discussion about
the allocationof resources,about priorities.
^eheardinthedialoguefromtheDepartment ofHomeland Security at one point that they were considering the prosecution or
restraint on journalists publishing information about chlorine
plants and their danger in metropolitan areas. Now, the plant
doesn't becomemoredangerousbecausethereisapublicationof it.
I t i s possible that some terrorist might learn that there is something there that they could blow up, but i t i s unlikely that they
haven't already identified it

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^hathappensis thepuhliclearnsaboutit, and asthatinformation is openly discussed, precautions are taken, political actors are
held accountable, and those political actors who become decisions
makers during crisis begin to take appropriate action.
Mr. I^EICHERT. Now, for all three of you, there has been—Mr.
Armstrong, you especially mentioned that you have been involved
in discussions with just about every member of the intelligence
community.Ididn't hear you say that state and localagencies were
involved indiscussions that youwere having.Didlincorrectly—
Mr. ARMSTRONG. No, that is correct. Cur primary purpose was
when the equivalent of an Official Secrets Act was passed in the
year 2000 and the vetoed and then came up again the following
year,we wanted to learn, in the press, we wanted to learnwhat
theconcern wasin thefederal government andhow we mightbest
meet that. But we have not had that discussion at the local level.
Mr. I^EICHERT. For all threeofyou, quickly, stateor localpuhlic
disclosurelaws,haveyoubeentrying to connect withstate officials
and local officials to find out how to work through that problem?
Ms. EUCHS. I f I could respond, I wanted to mention^it is a big
problem what happens at the state and local level, and there is
going to have to be some coordination. I wanted to draw the sub
committee's attention to a report that was done by the American
Society of Newspaper Editors that was released last week where
they did an audit where they wentto state and local offices to get
copies of the Comprehensive Emergency I^esponse I^lan in each of
thoseplaces.
That is something that is mandated to bemadepublic by the
Emergency I^lanning and Community I^ight to I ^ o w Act of 198^,
and i t i s something that, for instance, tellsyou escape routes that
the public should be aware of i f something happens in their community.
More than a third o f t h e public ofiicials refused to provide the
report It is sort of the opposite o f ^ a variation on the story that
youtold,Mr.I^eichert at the outset
Mr.I^EiCHERT.Yes.
Ms.EucHS.—about not sharing information.
But i t i s t h e k i n d o f t h i n g , f o r instance,Iknow that in D.C. that
I ^ Street divides which way you get out of the city i f something
happens, ^ e l l , I work on one side ofl^Street and my kid goes to
school on the other side of I ^ Street. I^owing that information is
important tome asamember of thepublic.
Mr. I^EICHERT. Yes. I would make one last point, ^ e can come
up, devise the greatest system in the world, which we don't have
right now,obviously,but i f we start over,it could hopefully end up
being better,but the system ismadeup of people,andthat is going
to be our major problem.
I know on a number of occasions in my ^^yearsin the sheriffs
office we weregoing to serveasearch warrant a n d l s h o w e d u p a t
an address to serveasearch warrant onasuspect in that major
serial caselwas talking about earlier only to findareporter stand
ing on the front porch waiting for me So we can buildagreat sys
tem, but it allboilsdown tothe people andthe responsibility that
they take.
Thankyou.lyield.

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Ms.HARMAN.Ithanktherankingmember for yielding.
The chair now recognises Mr. Langevin for5minutes.
Mr.LANGE^IN.Thank you,Madam Chair
I w a n t t o t h a n k our witnesses for testifying here today.
C a n y o u j u s t w a l k m e through the processofhowpeopleget access tothis sensitive but unclassified information? Does this come
down to the fact that we needed better information sharing envi
ronment among peoplelike lawenforcement, andoneofthethings
Iknow that DHSis struggling through right now is creating an information sharingenvironment for terrorism-related issues, similar
to the type of information sharing that law enforcement^that type
ofasystemthat law enforcement has right now.
Eor example, in NewEngland, wehave I^ISNet, I^egional Information Sharing Network, so that information on law enforcement
issues can get out there to those that need it. DHS is struggling
withcreatingthatkindof asystem. IthinkCharles Allen atDHS
is doingavery good job of moving in the right direction, but we
are certainly not thereyet.
So is that the model that we have right now?Ijust want to get
an understandingof when somethingis sensitive but unclassified,
can anybody in the law enforcement realm—you know, is that in
theneed toknow category?
Mr. LEONARD. Although not in my official realm of responsibil^
ities, lean addressthat andthatis thebottomline. Thechallenge
is,thereisnoonemodeL^ithover100typesofsystems,Idare
say thereis no oneindividual i n t h e entirefederalbureaucracy
who knows how to leverage access to all these types of controlled
information.
Andthe challenge then, ofcourse, is, when agencies wantto leverage technology to help disseminate this information, and there
are alldifferent types of controls and constraints on it, you are
somewhat restricted in terms of what you can put intoatechnology
system i f y o u don'tknowthe rules forhandlingand disseminating
and access, becausetherecurrentlyareno systems A n d t h i s i s
what AmbassadorMcNamara'soffice is in fact trying to address.
Mr. ARMSTRONG. Cne issueyou might consider, congressman, is
the fact that the Department ofHomeland Security does not seem
tohaveariskassessmentmatri^thatallowsthemtoput valueon
particular information and figure out what it is they are trying to
control and fromwhom.
^hen they issued, in 200^, a nondisclosure agreement, which I
includedacopy of, attached to my statement,they included the
long list of things and then the words, ^^and other identifier used
by other government agencies to categorize information as sensitive
but unclassified," and gave authority to any supervisor to create
any such category So people have millions of different interpreta
tions.
Itrequiresleadership,itrequiressomeidentificationofwhatthe
dangers are and what the purpose of controllinginformation is. If
theycan't identify that,don't control it.
Mr.LA^GE^lN.Let'skind of elaborate o n t h a t , i f we could,alittle
more. How might we go about creating a standardised system for
sharingsensitivebutunclassifiedinformation? And would astandard approach be a net positive? And furthermore, to what extent

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22
do you think there will be any resistance to such an effort and from
whom?
Ms. EuCHS.^eIl,Ithink that standardising wouldbeabenefit.
Imean, we see it in the classification system, there is some regu
larity, there are reporting requirements, there is way to challenge
classification decisions It may not happen that often, but at least
there is sometransparency to the system andthere is some control.
'^hatishappening i n t h e SBL^systemisitis allovertheplace,
andthe absence ofany type of regulation means that it is an inter
ferencewith information sharing.
But I wantto also addthatpart of making informationsharing
work means including the public in information sharing, because
the public has just as much concern as the government in protecting ourselves.
Imean,we all know the story of the sniper in ^ashington,DC
It was only because the license plate on that car got out and a
trucker who stopped atthe side ofthe street saw the car and reported it The public hasarole to play as well, so any kind of sys
tem should consider the importance of sharing information with
thepublic.
Mr. LEONARD. Andbeingalifelonghureaucrat, I f i n d r u l e s can
he empowering as well. Because, right now, with the mass confusion,people onthe frontlines and the federal bureaucracy who have
tomakedecisions,thereissuchconfusionthatthedefaultis, well,
Idon't know i f l a m going to default.
If we have clearly articulated rules, that can be empowering as
well,becausethen it removes theuncertaintyinpeople's minds.
They know exactly what they can disclose, under what circumstances and who. And also then i f people want to challenge
those controls, we know what it is we are challenging.
Mr. ARMSTRONG. I thinkthe standardisation needs tobe o f t h e
risk assessment process and of the process of engaging the partners
with whom you want to share information I f you build it, they will
come, but it has to be truly understood, as Meredith mentioned,
thosepartners include the public.The chlorine plant situation,peo
pie who own chlorine plants do not want information distributed
about them,particularly whenthere are risks fromthem.
Ms. HARMAN. The time of the gentleman has expired.
The chair now recognises the very patientMr. Dent ofl^ennsylvaniafor5minutes.
Mr. DENT. Thank you. Madam Chairman.
Mr. Leonard, thepresident directed thatthe designationof sensitive but unclassified informationbe standardised. In response, an
interagency working g r o u p , l e d b y D H S , D C ^ a n d t h e p r o g r a m
manager for thelnformation SharingEnvironment,initiatedaneffort to address these issues lunderstand that your office is part
of that effort and that the working group has submitted recommendations to the president regarding the standardisation of
sensitive but unclassified procedures.
'^hen do you expect these recommendations to be approved by
the president?And what outstanding issues are there?
Mr. LEONARD. Sure.
Congressman I serve as an advisor to the working group that
AmbassadorMcNamaraheadsup. Beinganobserver andanadvi

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sor to that group, I can attestthat significance progress hasbeen
made. Those recommendations actually have not yet been passed
up to the president as of yet, but my understanding is that the
timeline isamatter of months of get it throughtheprocess.
Mr.DENT.To get it to the president.
Mr. LEONARD. To get it to the presidents yes, sir.
Mr.DENT. Ckay.Then what canwedoto assist youthroughthis
process?Imean,what can Congress do?
Mr.LEONARD.^ell,one of the challenges t h a t l h a v e always took
note of is that many of the controls that agencies have placed on
unclassified information are actually based in statute And one of
my observations has been is that each and every time we create
one ofthese new homegrown controlled items, thatwe seem to do
it from scratch and we don't pay homage to what has gonehefore.
Andlbelievewhenever Congress makes the observationthat certain types of information needs to he controlled from a statutory
point ofview, that to whatevere^tentincludinginthosemandates
is theneed to ensure thatitisbeingdoneinaconsistentmanner,
I t h i n k would be highly efi^ective
Mr DENT More specifically, Mr Leonard,Iknow you testified
before that the classification authority is pursuant to the president's article 2 authorities under the Constitution, and that certainly complicates these legislative remedies.
So,Iguess,what, in your opinion,wouldalegislative remedy to
the problem of over classification and pseudo classification look
like?
Mr. LEONARD, ^ e l l , my referencetothepresident'sarticle2 authority,ofcourse,is withrespect tothe classification foranational
security information system, whichloversee.Thepseudoclassification system, a s l s a i d , that has its origins inanumber of different
areas.
Anything that we can do to change—the observation was made
about ultimately it is people whomakethe system works,and anything that we candotoencouragepeopletorecogni^etheneedthat
inappropriate withholding of information is similarly deleterious
and change that culture is, I t h i n k , ultimately what is required in
this area.
Mr.DENT.Thank you.
And,finally,in August of 200^,youtestified,essentially,that the
creationofadirector of nationalintelligencewouldbeagood thing
i f t h e DNI could overcome all ofthe nuances in the classification
system.
Has this been the case, or does the DNI need more authorities
toironout the classification system,inyour opinion?
Mr LEONARD The DNI has takenaleading role, from my obser
vation, in terms of trying to establish greater consistency with respect to how the intelligence sources, methods and activities are
handled across theboard.That is obviouslyaworkinprogress,but
my observation is that the DNI has taken a much needed leadershiprole inthis area.
Mr.DENT.Thanks,MadamChairman.lyield back.
Ms.HARMAN.Ithank the gentleman.
As this panel e^its, Iwould just like to note t h a t l w a s one of
the godmothers for the creation of the Department of Homeland Se-

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curity,andIwasacoauthor of the legislation establishing the Cf
fice of the Director ofNational Intelligence, and our clear intent,
onabipartisanbasis, wastosimplify, not complicate, thissystem.
So I am hopeful that this subcommittee, on a bipartisan basis,
will take up Mr. Armstrong's challenge and see i f we can accomplishthat goal,which i s a l o t later thanweintendedbut very timeThe firstpanel is excused, and as the secondpanel comes up, I
would note thatwe are expecting votes between 11^15 and II^^O.
Mr. I^eichert and I wantto hear from both witnesses and ask our
questions very promptly,becausewe don't want youtohaveto stay
around for thehalfhour or more that wewill have torecess.
Thank the witnesses very much.
Ckay Let's have the second panel takes your seats Even with
outnametags,weknowwhoyouare.
Cur firstwitness, Cathy Lanier, is thechiefoftheMetropolitan
I^oliceDepartmentherein^ashington,D.C. She wasnamedpolice
chief by D.C. Mayor Adrian Eenty and assumed her position on
January 2ndofthisyear. Beforeher appointment, she was tapped
to bethefirst commanding officer for thepolicedepartment'sCffice
ofHomeland Security andCounterterrorism,whichwas established
in 200^
Ahighly respected professional in the areas ofhomeland security
and community policing. Chief Lanier took the lead role in developing and implementing coordinated counterterrorism strategies
for all units within the Metropolitan I^olice Department and
launched Operation TII^I^, which is D.C.'s Terrorist Incident and
I^reventionl^rogram.
Cur second witness, Michael Downing, serves as the assistant
commanding officer, Counterterrorism Criminal Intelligence Bu
reau, where heassiststworegionaloperations,whichcommand the
Los Angeles^ointl^egional Intelligence Center,called the ^I^IC.
And wewelcome him from L.A.
I will skip all the rest o f h i s wonderful credentials, because we
want to get right toyour testimony.
And, without objection, thewitnesses'fullstatements w i l l b e i n serted inthe record.
I now askeach witness to summarise as quickly as possible,
starting with Chief Lanier.
STA^1^1^12^NT0^^^1^^^A^^^.^^^A^^^^,1^^T^0^0L1^AN
^OL1^^O^^A^Tl^^NT,^AS^1N^T0N,O.0.
Chief LANIER. Thank you. Cood morning.
Chairman Harman, membersof thecommittee, staffandguests,
thankyou for this opportunity topresent this statement onthe impact ofover-classificationon information sharing.
Tobegin, I emphasise theimportant role that locallawenforcementplaysinhomelandsecurity efforts.^e are morethan merely
first responders, as you have stated, ^ e are first preventers who
are uniquely positioned to detect and prevent terrorist incidents
right here in our home. There are 800,000 law enforcement members across the nation who know the communities they serve and
are in the best position to detect the investigative criminal activity
that might be connected to terrorism.

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25
Information provided by local police, i f discovered early and
matched with the right intelligence, can help detect, disrupt and
prevent a terrorist plot. However, in order ibr local law enforcement to perform its critical role of first preventer, it is essential
that the police officers and support personnel be provided with
timely intelligence information This requires an intelligence con
duitconsistingofanorgani^ed,effectiveandtrustingfiowof infer
mation between local law enforcement andourfederalpartners.
It is important to note that in the national capital region, the
fiow of information among our federal partners is fairly good
throughthe^TTE. I^art of that reasonfor that isthatouragencies
have worked together for years sharing information and coordi
nating responses toavariety of situations.I^reestablishedrelationships and a trackrecordoftrusthas madesmooth and eliminated
obstacles experienced hy other jurisdictions The^TTE understands
local lawenforcement and appreciates the value ofthose relationships.
Nonetheless, several issues remain as it relates to federal and
local information sharing. Law enforcement needs better access to
federal intelligence information as well as an enhanced ability to
translatesuchinformationintolocal lawenforcement activity.This
involvesclassifyinginformationappropriately as well ascreatinga
more efficient local access, bothclassified andnonclassified information.
Access to federal intelligence information remainsamajorobsta
cle for local law enforcementB^hile the security classification sys
tem that mandates security clearances helps to ensure that sensitive information is protected, it also hinders the local homeland
securityefforts.
Information collected by the federal government is sometimes
overly classified and causes valuable information that should he
shared to remain concealed. Law enforcement does not need to
know the details about where information originates or how it is
collected^ however, we do need sufficient and timely information in
order to know what to look out for as well as what scenarios to preparefor.
Information providedby the federal governmentthatis dated or
only sharedoncethethreat becomes imminent doesnot offer value
to local law enforcement. At this point, it is too late for us to en
hance our capabilities to effectively deal withathreat Conversely,
locallawenforcementanalystsshould alsoensure thatintelligence
they collectis assessed and shared with DHS, EBI and other local
and state agencies.
The significant challenges facing local law enforcement is in
translating this intelligence once it is obtained from the federal
government into actions for localjurisdictions.This challenge is notably exacerbated when the information provided is either not
timelyor isrestricted sothat it cannot besharedwithother stakeholders.
I t i s critical thatthe local lawenforcement community be made
aware of global trends regarding people and organisations that
haveapotentialto commit crimes or poseahonafidethreat to our
community. Awareness of these global trends will identify emerg-

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2^
ing threats and allow metoproperly train my patrolofficers onthe
individualelements needed tomitigate these emerging threats.
As a police chief, I need various forms of intelligence that will
come from a variety of different agencies. Cn the strategic side, I
needaglobalviewofknownterrorist organisations,groupsand individuals, both foreign and domestic, and thepotential threatthey
may post to the homeland This type of intelligenceprovides me
withabetter understanding of the history of these groups,their ca
pabilities and their interest inparticular targets or weapons.
The broad nature o f t h i s type ofintelligence, in my opinion,
should not be classified beyond law enforcement sensitive. Even
when it involves emerginggroups and capabilities, as long as the
information remains in the law enforcement community and is
used for legitimate law enforcement purposes, it should not cause
harmto any ongoing intelligence operation.
In addition to increased awareness of global trends, I also need
to be familiar with the local threat environment right here in the
national capital region. Beingfamiliar with the presence of known
terrorist organisations in this region allows me to educate and
train my officersontheknown tactics used by theseorgani^ations
sotheycanpay particularattentiontothe certain subtleactivities
while on routinepatrol.
Eor example, i f i t is known that a particular terrorist organi^ationthathasapresenceintheNCI^isknowntoengageinfinancing terrorist activities by selling unpacked cigarettes, my patrol of
ficers need to be aware of this so that particular tactic—so they
would know which information needs to be shared with the ^TTE
for further analysis.
This intelligence, combined with information such as how these
groups travel, communicate and infiuence will help me infiuence
the resource allocation, training, prevention efforts and response
practices.
The bottom line, the frontline officers who see individual ele
ments of crimes every day need to be knowledgeable of emerging
threats and tactics in order to link these individual elements so
that trends can be identified early and mitigatedquickly.
I will skip to the end of my testimony to stay within the time,
but I do believe that ultimately improvements in the intelligence
sharing environment will make our nation safer,as thefederal government and localfirst responders workjointlyasfirstpreventers.
A n d l t h a n k you for having this opportunity today.
^The statement of Chief Lanier follows'l
Pl^^PAI^I^OSTAT^^I^l^TOPCATHyl^.I^AI^I^I^
MAI^CH 22,200'^
Chairwoman Harman, members of the Committee, staff and guests^thank you
forthe opportunity to present this statement on the impact of overclassification on
information sharing. Specifically, I will address federal-level information sharing
with locallaw enforcement.
Tobegin,Iemphasizetheimportantrolethatlocallawenforcementplaysin
homeland security efforts, ^ e are more than merely first r^^^o^io^^r,^. ^e are first
^r^tB^^^^er.^ who areuniquelypositionedto detect and preventterroristincidents
righthere at home.Thereare800,000 lawenforcementmemhersacrossthe nation
who know the communities they serve and are in the best position to detect and
investigatecriminal activity that might heconnected to terrorism. Information pro-

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27
vided by local police^if discovered early and matched with the right intelligences
can help detect, disrupt andpreventaterrorist plot.
However,in order for locallaw enforcement toperformitscriticalrole of first^rei^e^^^r, it is essential that police officers and support personnel be provided with
timely intelligence information. This requires an intelligence conduit consisting of
an organized, effective and trusting flow ofinformation between local law enforcement and our federal partners. It is important to note that in the national capital
region, the fiowofinformationamong federal, stateand local partnersthroughour
^ointTerrorismTaskForce(^TTFlisquitegood.Partofthereason f o r t h i s i s t h a t
our agencies have worked together for years sharing information and coordinating
responses toavariety of situations. Preestahlished relationships andatrack record
of trust have smoothed many of the obstacles experienced hy other junsdictions The
^TTFs understand local law enforcement, and appreciates the value of local relationships.Ibelieve other aspects of the federal homeland security community could
learn fromthe experiences of the ^TTFs.
Nonetheless, several issues remain as it relates to federal local intelligence sharing practices. I^ocal lawenforcementneedsbetteraccesstofederalintelligenceinformation, as well as an enhanced ability to translate such information into local law
enforcement activity. This involves classifying mformation appropriately, as well as
creating moreefficientlocal accesstoboth non-classifiedandclassifiedinformation.
Further, we need to recognize the importance of smaller law enforcement agencies,
as well as the need to expand homeland security efforts beyond our traditional part
ners.Iwill discuss these issues in greater detail in this testimony
Access to federal intelligence information remainsamajor obstacle for local law
enforcement^hile the security classification system that mandates security clear
ances helps to ensure that sensitive information is protected, it also hinders local
homeland security efforts. Information collected by the federal government is sometimes overly c^o^^^^^e^.causing valuable information that should he shared to remainconcealed.
I^ocal law enforcement does not need to know details about where information
originates or how it was collected. However, we do need sufficient and timely information in order to know what to look out for—as well what scenarios to prepare
and drill for. Intelligence analysts should assess intelligence information and syn
thesize it inamanner that allows pertinent informationtobeshared widely among
local law enforcement personnel. This requires that they write the analysis for release and appreciate the type of actionable information useful to law enforcement.
I w a n t to also emphasize the importance of quickly sharing information^even if the
information IS not fully vetted. Information provided by the federal government that
is dated or only shared onceathreat becomes imminent doesnot offer valuetolocal
law enforcement. At this point it is too late for us to enhance our capabilities to
effectively deal with the threat Conversely, local law enforcement analysts should
also ensurethatintelligencethey collect isassessed and shared withDHS,FRI,and
other local and state agencies.
Asignificant challenge facinglocallawenforcementistranslatingtheintelligence
information that is obtained from the federal government into action for local juris
dictions.This challengeisnotablye^acerbatedwhentheinformationprovidedeither
not timely or is restricted and cannot be shared with other stakeholders I t doesa
local police chief little good to receive information—including classified information—about a threat if she cannot useit to help prevent an attack. Operationally,
locallawenforcementneedsto be aware of thepresenceofpossibleterrorist organization activity in their jurisdiction and surrounding region. This intelligence^combined with information such as how these groups travel and communicate—infiuence local law enforcement resource allocation, training, prevention, and response
practices.
It is critical that the local law enforcement community he made aware of global
trendsregardingpeopleandorganizationsthathave the potential tocommit crimes
or poseahonafidethreat to the community Awareness of these global trends will
identify emerging threats and allow me to properly train my patrol officers on the
individual elements needed to mitigate these emerging threats. As a police chief I
need various forms of intelligence that will come fromavariety of different agencies.
On the strategic side, I need aglobal view of known terrorist organizations, groups
and individuals^both foreign and domestic^and the potential threat they may pose
tothe homeland.This type ofintelligence providesme with a better understanding
ofthe history of thesegroups, theircapabilities and their interest in particular targets or weapons The broad nature of this type of intelligence, in my opinion, should
not be classified beyond ^^law enforcement sensitive".Even when it involves emerg
ing groups or capabilities, as long as the information remains in the law enforce-

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28
ment community,andisused forlegitimatelawenforcementpurposes.itshouldnot
causeharm to any ongoing intelligence operation.
Inaddition toincreasedawarenessofglohaltrends.Ialsoneedtobe famiharwith
the local threat environment in the national capitol region. Being famihar with the
presence of known terrorist groups in the region allows me to educate and train my
officers on the known tactics used by these organizations so they can pay particular
attention to certain subtle activities while on routine patrol. For example, i f i t is
aknownthataparticular terrorist groupthathasapresenceintheNCRisknown
to engage in financing terrorist activities by selling untaxed cigarettes, my patrol
officers need tobe aware ofthese and other tactics so that they would know which
information to pass to the ^TTF for further analysis
The bottom line issue is that the frontline officers, who see the individual elementsofcrimes,needtoheknowledgeableofemergingthreatsand tacticsinorder
to link these individual elements so that trends can be identified early and miti
gated quickly.
Importantly, there are also occasions where local law enforcement officials may
needtobeapprisedofclassifiedinformation.Thereisno question thatlocal lawenforcement personnel have added value to federal task forces—such as the ^TTFs—
as well as Department of Homeland Security operation centers I t is for these rea
sons that appropriate security clearances must be granted^inatimely manners
tolocalpolice.
^hiletheMetropolitanPoliceDepartment(MPDlhasobtainedanumberofsecurity clearances for its members, that is not true for all law enforcement organizations. Itisimperativethatfederal, state, andlocal lawenforcementpersonnel that
are working together to protect the nation fromterrorist threats be on equalfooting.
^ h i l e local lawenforcementhasseensomeimprovementin theprocessofreceiving
security clearances, more must be done to expedite the process
I am optimistic that the DHS-supported fusion centers that are becoming operational across the country will help bridge some the existing intelligence sharing
gaps. This will be accomplished by having analysts from different agencies and per
spectives talking to eachotherandworking together. .
^ h i l e large-sized police departments have the ability to develop and implement
more sophisticated intelligence functions, small agencies are sometimes left out of
the loop. In the Washington area alone there are 21 municipal law enforcement
agenciesthathavelessthan^Opolice officers. I t i s incumbentupon the federal government and largepolice departments toensure thatsmalleragenciesare keptinformed—andunderstand theimportanceofintelligenceinformation. Formal liaisons
should be established, and every agency^no matter how small^should have an ac
cessihierepresentativethatisfamiliarwithhandling intelligence information.
I also believe that federal and local law enforcement should consider expanding
its homeland security efforts beyond traditional parameters, ^ e need to examine
the possibility of establishing intelligence conduits with other local government com
ponents. Firefighters, paramedics and health workers, are well positioned to contribute valuable information to help protect our communities. In order to harness
thesetypesofresources,intelligence-sharing networksmustbemoreinclusive. Further, the intelligencecommunity will also need to workon developingand sharing
intelligence that is actionable for other professions, ^ e should begin planning for
thisnewfrontnow.
Finally, locallawenforcementrecognizesthatinadditiontoneeding timely intelligence from federal agencies, wealsomust he willingand able toshare timely and
usefulinformationgatheredatthelocal level withourfederal state, andlocal partners. This is what the fusion center concept is all about. I^ocal law enforcement
stands ready to do its part in contributing to^and receiving and acting upon^the
information that we hope will be shared more extensively in the future.
Ultimately,suchimprovementsinintelligence sharing willmakeour nation safer,
as the federal government as local first responders work jointly as first ^r^i^^^^^r^.
Thank you again for the opportunity to appear before you today.

Ms HARMAN Thank you,Chief Your testimony is very impor
tant for the hearing record.
Mr. Downing?

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29
S^AT^I^^N^
O^
I^^O^^A^L
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ASS^STAN^
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^N^^^1^1^^I^^^1^^^^^A^,^OSAN^^L^S^OL10^0^^A^^1^^^T
M r . DOWNING. Chairman Harman, I^anking Member I^eichert,
members of the subcommittee, thank you for the opportunity to disc u s s t h e L o s Angeles I^olice Department'sefforts t o f i g h t t e r r o r i s m
and the important issue of the overclassificationof intelligence.
Having recently r e t u r n e d f r o m a n 8 w e e k a t t a c h m e n t t o t h e n e w
Scotland Yard's Counterterrorism Command, I h a v e a muchgreate r a p p r e c i a t i o n f o r c h a n g e a n d why w e n e e d t o change.
In I^eter Clarke's words, the national coordinator for counterterrorism, i f y o u looked at the ^ O y e a r l l ^ A campaign and look at the
antithesisof that c a m p a i g n , t h a t i s t h e t h r e a t t h a t t h e y h a v e n o w .
To take a I^O year old organisation's special branch and amal
gamate i t into the counterterrorism command is huge change for
a c u l t u r a l l y rich institution, and i f they change,we certainly need
to change.
Local law enforcement's ability to p l a y a s i g n i f i c a n t role in stop
ping terrorism is seriously hampered by the over classification of
intelligence by the federal government I n Los A n g e l e s , w e e n j o y a
positive constructivepartnership w i t h variousfederalagencies,but
the classification process has been a substantial roadblock to our
capacity to investigate terrorism cases
The terrorist threat to our communities currently involves continued domestic terrorism and international terrorists plotting to
destroy American cities. I^rior to September 11, local law enforcement agencies primarily investigateddomesticterroristgroups, i n cluding white supremacists, hategroups, special issuegroups cond u c t i n g c r i m i n a l activities. Investigations centeredon familiar cultures that were socially motivated hy political ideologies to commit
terrorism.
The bombing of the Alfred M u r r a h building i n Cklahoma, i n
1995,the most notable domestic terrorist attack,hadacatastrophic
impact on American soil and brought together local and federal law
enforcement to bring the terrorists to justice. Local law enforcement, i n f a c t , played a c r i t i c a l r o l e i n theinvestigation and apprehensionof the offenders.
l u n d e r s t a n d t h a t y o u are coming t o T o r r a n c e i n a f e w w e e k s f o r
a field hearing. The ^IS case was an unclassified case that dealt
in prison radicali^ation and conversion to gangs and terrorism.
That was an unclassified case because i t didn't have an international connection. Had i t had an international connection, i t
would have been classified and the outcome perhaps could have
beenmuchdifferent.
I^rior to September 1 1 , i n t e r n a t i o n a l t e r r o r i s m w a s not i n t h e na
tional consciousness. Despite the first ^ o r l d Trade Center bomb
ing,most Americans did not reali^ethe significant threat of Islamic
extremism and the consequences of this terrorism. September 11
changed the mindset of all Americans, includinglocal law enforcement.
I n addition, in the war on Afghanistan, and later in Iraq, the
face of Islamic terrorism changed. No longer was the only threat
a g r o u p of dissident Saudis h i j a c k i n g a p l a n e to crash into Amer
ican symbols of power. Throughout the world, suicide bombers at-

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^0
tacked discos, train stations and buses. Islamic terrorism has con
tinned to demonstrate its reach and power from changing the outcome of the200^nationalelection in Spainto paralysing thetransportation system in London in 2005.
The terroristtransformed himself from Middle East foreigner to
second andthird generation localciti^en.
Thesheer number of terrorist threatsto our communitiesacross
thecountry hasincreaseddramatically, andthefederalgovern
ment's capacity to collect intelligence and investigate these threats
has been overwhelmed. Consequently, local law enforcement's ef
forts to counterterrorism has never been more important and has
never been more critical.
Across thecountry, anewconceptoffusioncenters arose, where
analysts from police departments, EBI, Immigration and Customs
Enforcement and other agencies worked on the same information
screens to identify possible terrorist threats
In Los Angeles, the LAI^D provides personnel to participate in
thed^I^IC locatedinNorwalk, California, behave 1^ other participating agencies inthat center.
The ^I^IC provides critical information sharing opportunities
with the federal government. However, over classification of Intel
ligencehasbecomeanimpedimenttofull information sharing with
thelocal lawenforcement agencies whoparticipateinthe^I^IC. As
such,it hasprovided an impediment tothe ^TTEs, which isagreat
success story in our partnershipwiththe federal agencies.
After the 9^11 Commission issued its comprehensive report,
America's local lawenforcement community, consistingofover 700
law enforcement officers, was reluctantly invited into the effort of
countering the international terrorist threat. Cne part o f t h e ra
tionalewas that neither the CIA orDCDcouldconduct intelligence
operations withintheLl.S.against Americanciti^ens.
Moreover, the total number of EBI special agents assigned to
protect over 18,000 cities, towns and villages throughout the
L^nitedStatesisslightly over 12,OOOpeople.Thisnumber becomes
less reassuring when one examines the number of agents needed
to handle the EBTs other responsibilities, including white collar
crime, organised crime, public corruption, financial crime, fraud
against the government, bribery, copyright infringements, civil
rights violations, bank robbery, extortion, kidnapping, espionage
and so on.
At the national level, local law enforcement was not deemed an
important stopgap in the field of counterterrorism, particularly in
the area of Islamic extremists. In addition, the significant role
of
Ms. HARMAN. Mr. Downing, could you please summarise at this
point,becausewe are concerned t h a t a v o t e w i l l b e called.
Mr.DoWNlNG.Thank y o u . I w i l l conclude,Ms.Chairman.
TheL^nitedStatesfacesavicious, amorphousandunfamiliaradversary on our land Cur previous defensive strategy to protect our
cities was ineffective, and our current strategy is fraught with
issues, ^ e cannot support any process that takes us closer to another failure.
behave mutual interest in working common directionto prevent
actsofterrorisminthel^nitedStates. Theclassificationlevels are

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81
basedonfear, the probability of informationbeingdisseminated to
those that can cause serious damage to national security, ^ h a t
this system is not designed to do is to protect us against the threat
itself.
Thisis achievedby disseminating thelnformation to people who
standthebest chance of stopping violenceagainstAmericancities,
our first preventers and lawenforcement.
^The statement of Mr. Downing follows^l
Pl^^PAI^^0STAT^^^I^T0PMlCHA^I.P.D0^^1^G
MAt^GH 22,200'^
H.In^^o^^^l^Io^
Chairman Thompson, Chairwoman H a r m a n , Ranking Member Reichert, and
Members of the Subcommittee, thank you for the opportunity to discuss the Eos A n gelesPolice D e p a r t m e n t ' s ( E A P D l e f f o r t s t o f i g h t t e r r o r i s m a n d t h e i m p o r t a n t issue
of the over-classificationof intelligence.
I^ocal law enforcement's ahility to p l a y a s i g n i f i c a n t rr^le i n stopping terrorism is
seriously hampered by the overclassification o f i n t e l l i g e n c e by the federal government, ^ h i l e i n I.os Angeles we have enjoyed a very positive and constructive partnership w i t h various federal law enforcement agencies, including the Federal Bur e a u o f Investigation's ( F B I ) I ^ o s A n g e l e s F i e l d Office and the Department of Homeland Security's I m m i g r a t i o n and Customs Enforcement ( I C E ) , t h e classificationprocess has h e e n a s u h s t a n t i a l roadblock to our capacity to investigate terrorism cases
andworkhandinhandwiththesefederalagencies.
^I.'^h9'^9r^o^i9l^T'^^99t^oOt^^I^o^9lCoii^^t^r^^fi99
The terrorist threat to our communities currently involves continued domestic terr o r i s m a n d international terrorists plotting to destroyAmerican cities.
A.Oo^99l^i^'^9r^o^l8^
P r i o r t o September 11, local law enforcement agencies p r i m a r i l y investigated domestic terrorist groups, including white supremacists, hate groups, and speciali s s u e s g r o u p s c o n d u c t i n g c r i m i n a l activity (e.g. the A n i m a l fBiberation Front). Investigations centered on f a m i l i a r cultures t h a t were socially motivated by political
i d e o l o g i e s t o c o m m i t t e r r o r i s m . T h e b o m b i n g o f the A l f r e d P . M u r r a h Federal Building i n Oklahoma i n 1^^5, the most notable domestic terrorist attack, had a catastrophic impact on American s o i l a n d b r o u g h t together l o c a l a n d f e d e r a l l a w e n f o r c e ment to bring the terrorists t o j u s t i c e . ^ E o c a l l a w e n f o r c e m e n t . i n f a c t , p l a y e d a c r i t i c a l r o l e i n t h e i n v e s t i g a t i o n a n d apprehension of the offenders.
^.Int9^^9^Ion9lT9^^o^l8^
Prior to September 1 1 , 2 0 0 1 , i n t e r n a t i o n a l t e r r o r i s m was n o t i n t h e n a t i o n a l c o n sciousness. Despite the
first^orldTrade
Center bombing, most Americans did not
realize the significant threat of Islamic extremism and the consequences of international terrorism. September 11 changed the mindset o f a l l Americans including
local lawenforcement.
SinceSeptemher 11,the scope of terrorism a n d e x t r e m i s m h a s increasedexponentially I n addition, as the war i n Afghanistan and later in Iraq waged on, the face
of Islamic terrorism changed N o l o n g e r was the only t h r e a t a g r o u p o f d i s s i d e n t
S a u d i s h i j a c k i n g a p l a n e to c r a s h i n t o American s y m b o l s o f p o w e r . T h r o u g h o u t t h e
world, suicide bombers attacked discos, t r a i n stations, and buses. Islamic terrorism
has continued to demonstrate its reach a n d p o w e r from changing the outcome of the
200^ national election i n Spain to paralyzing the transportation system i n I^ondon
i n 2005. The terrorist transformed himself from Middle East foreigner to second and
t h i r d generation local citizen.
The sheer number of terrorist threats to our communities across the country has
increased dramatically and the federal government'scapacity t o c o l l e c t i n t e l l i g e n c e
and investigate these threats has been overwhelmed.Consequently, local law enf o r c e m e n t ' s e f f o r t s t o c o u n t e r terrorism have neverbeen m o r e i m p o r t a n t o r c r i t i c a l .
^ ^ I . I . ^ A ^ D 9 ^ 9 9 ^ 0 ^ 8 9 ^0^9^^0r^9^TI^^99^9
A.Cot^r^^9^-T^9rrori9r^I^^r99^
* The 1993 World Trade Bombing wgs seen as international terrorism and investigated by the
FBI.

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82
The I^os Angeles Police Department has taken the threat of international terrorism very seriously.The city hasapopulation of o v e r ^ m i l l i o n and spans over
approximately 500 square miles.The region IS home to numerous potential terrorist
targets including the Eos Angeles International Airport, the ports of Eos Angeles
and Eong Beach, and the entertainment industry.In response, the EAPD has invested numerous hours and millions of dollars toward preparedness and response
to a possible terrorist attack. In addition, the EAPD has created a Counter-Terrorism^Criminal Intelligence Bureau with nearly ^00 officers who are solely dedicated to counter-terrorism and criminal intelligence gathering, ^ h i l e this bureau
hasservedacritical functionin the war against terror, theEAPDhasbeenrequired
to dedicate officers to intelligence gathering,afunction typically performed by the
federal government.
^ . ^ o i ^ ^ ll^9^Io^9l ^^^9lli^9r^99 C9^^9^9^^^o^r^^ T^9^^0^i8^ T99l^ ^0^99
Across the country,anew concept ^Tusion centers" arose where analysts from police departments, the FBI, Immigration and Customs Enforcement, and other agencies worked on the same information streams to identify possible terrorist threats.
In Eos Angeles, the EAPD provides personnel and participates in a ^oint Regional
Intelligence Center (^RICl, located in Norwalk, Cahfornia, which includes fourteen
participatingagencies.The^RICprovides acriticalinformation-sharingopportunity
with the federalgovernment.However, theover-classificationofintelligencehas become an impediment to full information sharing with the local law enforcement
agencieswhoparticipateinthe^RIC.
The EAPD, as well asother Eos Angelesarealawenforcement agencies, isan active participant in the ^ointTerrorism TaskForce (^TTFi.Eike the ^RIC,the ^TTF
also serves as an excellent partnership with federal law enforcement agencies and
provides the opportunity for extensive information sharing.The same impediments
of the ^RIC, however, apply to the local law enforcement agencies participating in
the ^TTF.The dissemination ofcriticalintelligenceisrestrictedduetoits over-classification.
^.^h9C0^99^t^9^999

0 f 0 v 9 r C l 9 8 9 i f i 9 9 l ^ i ^ ^ 0 f ^^1^9ll^^9^99

After the ^^11 Commission issued its comprehensive report, America's local law
enforcementcommunity,consistingofover'^00,OOOIawenforcementofficers, wasreluctantly invited into the effort of countering the international terrorist threat One
part of therationale was that neither the Central Intelligence Agency nor Department of Defense could conduct intelligence operations within the United States
against American citizens. Moreover, the total number of FBI Special Agents assigned to protect over 1^,000 cities, towns, and villages throughout the United
Statesis slightly over 12,000.Thisnumberbecomeslessreassuring inthe whenone
examines thenumher of agentsneeded tohandletheFBI'sotherresponsibilitiesincludingwhite-collarcrime,organizedcrime,puhliccorruption, financial crime, fraud
against the government, bribery, copyright infringement, civil rights violations,
bankrobbery,extortion,kidnapping,espionage, interstate criminalactivity,drug
trafficking,andother serious violations of federallaw.
Atthenationallevel,locallawenforcementwasnotdeemedanimportant stopgap
i n t h e field of counterterrorismparticularly i n t h e area of Islamic extremists In
addition, the significant role of local law enforcement in the fight against international terrorism was not viewed as significant. More than five years after the
tragic events of September 11, locallawenforcementinvolvement has still notheen
fully embraced because ofthe impediment ofinformation sharing and the overclassification ofintelligence.
Theresult of includinglocal lawenforcementisthatuniform police officers, bomb
squads, and hazardous material teams now train together to address terrorist
threats with the FBI, Department of Energy, Federal Emergency Management
Agency,and the Department of Homeland Security,and tram to respond to possible
terrorist scenarios.
Eocal law enforcement has had a long history in investigating individuals and
groups while developing andhandhng human and electronic intelligence.No agency
knows their landscape better than local law enforcements it wasdesigned and built
to bethe eyes andears ofcommunities.Over-classification,however,preventsatrue
partnership with federal agencies.
An impediment for both federal andlocal agencies,for example,isthatlocal FBI
agents, cannot change the originating agency's classification level, and this problem
is amplified when the response to the threat is time sensitive. Appropriate law enforcement response to substantial threats can be significantly impaired with minimal leadtime, creating greater risk to the community,and impacting the ability for
a^'FirstPreventer"response. Alocal fieldagent,however,hasthe discretion to classify a case as '^secret."Thecriteria forthis classification is '^secret shall be applied

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to information, the unauthorized disclosure of which reasonably could be expected
to cause senous damage to the national security"Additionally, the standard used
for^^secret" for intelligence information is ^^the revelation of significant intelligence
operations."Many field agentsmay over-classify their cases for fearof compromise.
Unfortunately,this isadouble edge swordbecauseit stifles collaboration withlocal
lawenforcement.
The burden to overcomeisthattheinvestigations pushup against federal invesI.igations, which in turn becomeclassified. The result isthe old adage of local law
enforcement pushing information to federal agencies without getting anything back.
The federal fix has been t o b r i e f t h e Chiefof the executive staff of classified cases,
butrestricted the dissemination to their intelligenceunits(despiteproperclearance
levels of personnel!. The result is to develop separate and likely redundant intelligence gathering operations For example. New ^ork was first in the country to disengage from relying on the federal agencies to protect their city.committing almost
1,200 officers to counter terrorism efforts. Currently, the association of Major Cities
Chiefs of Policeis campaigning in Congress to sendpolice officers overseas to obtain
information from their police counterparts rather than rely on our own federal agen
ciestoshareinformation.
V. ^9eo^^9r^^9^^o^
The declassification of information currently classified at the secret level would
greatly improve the informationsharing environment and build uponthe counterterrorism capabilities of local law enforcement. Federal authorities should consider
changing the criteriaclassificationofterrorismrelatedintelligenceto'^Eaw Enforcement Sensitive" to enable the dissemination ofinformation to critical personnel in
the field. ^^TopSecret"should be an exceptional classification that requires extraordinary demonstrationofneedwhile^^Secret"shouldbeaclassificationthat requires
more stringent demonstration of needthan currently required.
Eocal law enforcement already works in an environment witha'^right and need
t o k n o w " a n d e f f o r t s m a d e t o declassify ^^secret"informationto^^law enforcement
sensitive"would not only makefor more effective andtimely intelligence, but inspire true partnership, better collaboration, the building of more robust trust networks, and developaricher picture with regard to community intelligence.
V I . C^^el^^io^
The United States faces a vicious, amorphous, and unfamihar adversary on our
land. Our previous defensive strategy to protect our cities was ineffective and our
current strategy isfraughtwith issues.In Eos Angeles,we cannot support any process that takes us closer to another failure, ^ e have the mutual interest and are
working incommondirection toprevent acts of terrorismintheUnitedStates. The
classification levels are based on fear: the probability of information being dissemi
nated to those that can cause serious damage to national security.^hat this system
is not designed to do is protect us against the threat itself Eocal law enforcement
hasaculture and capacity that no federal agency enjoys^ the know how and ability
toengageacommunity and today i t i s a vital partoftheequation.Thisisachieved
by disseminating the information to people who stand the best chance of stopping
violence against American cities: our first preventers inlocal law enforcement.

Ms HARMAN Thank you very much
The chair now recognises the chairmanofthefullcommittee,the
gentleman from Mississippi,for5minutesofquestions.
Mr. THOMPSON. Thankyou very much. Madam Chairman. I appreciate the opportunity
Chief Lanier,nicetoseeyou again. Youdo us proud.
Chief LANlER.Thank you.
Mr.THOMPSON. Mr. Downing, NewYorkCity saw that they had
a problem with cooperation andcommunication with respect t o i n telligence. So they created their own intelligence division to kind
of address many of the items you sharedwithus today.
^ h a t has the Los Angeles I^oliceDepartmentput together to address some of the issues that we are talking about today?
Mr. DOWNING, ^ e have our own intelligence section as well,
probably ^0 people dedicated to gathering intelligence within our
major crimes division, which does not include the ^oint I^egional
Intelligence Center.

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The^ointl^egionallntelligence Center sitson top ofsevencoun
ties that t h e L . A . E B I o f f i c e i s i n c h a r g e o f . ^ e have approximately
people in that center, growing to 80. I t i s going to be a 7day,
2^hour operation.It is an allcrimes,all ha^ardsapproachtointel
ligence. However, with the minimal staffing right now, it is primarily terrorismBut that is how we deal with it
The EBI has established that as a top secret level ^I^IC center.
It is managed by the L.A. sheriffs, LAI^D and the EBI, with the
EBI as the functional lead in the center.
Mr.THOMPSON.Thank y o u , a n d l w i l l get back to the other part.
Chief Lanier, doyoubelieve thatyou are receivingall theinformation,or your department is receiving a l l t h e information nec
essary from federal government sources at this point?
Chief LANIER.No,lam s u r e l a m not.
Mr. THOMPSON. And without pointing fingers, can you tell me
who is good, who is not so good, whois deservingof beingbetter?
Becausewhatwearetryingtodowiththehearingsistryingtode
termine where we need to start to focus. Eor instance, I will give
you a good example, our Capitol I^olice happen to use analog radios, ^ e l l , they can't talk to anybody but themselves, because everybody else is digital. And that is a problem. So i f we can't talk
to eachother from an interoperability standpoint, I am wondering
how much of the sharing of intelligence andother things.
So i f you could kind of give me your analysis of what you have
found so far.
ChiefLANIER.Icanwalk that fine line there,sir.
Mr THOMPSON. All right.
Chief LANIER. Eirst ofall, l a l w a y s b e l i e v e i f l a m g o i n g to criticise anybody for anything, wehave t o l o o k a t ourselves first. And
I will say that local law enforcement needs to do a better job of
clearly articulating what our intelligence needs are to the various
intelligence agencies so theyknow what to give us.
It took some pushing from me^fortunately,Ihad the support
from Chief I^amsey—to go to the right people andthe right agencies and say, ^^This is what I need and why I need it." It is not
enough to say,asapolice chief, ^^ou are not giving me enough informations giveme more."
If the other federal agency doesn't know what it is that I need,
they aregoingtogiveme whatthey t h i n k l n e e d . S o l n e e d t o l a y
that out very clearly So we are guilty as well
^ i t h t h a t said,nowlcanthrowother stones.Idothink that the
participation of the ^TTE has increased the information sharing
fiow with the EBI because there is a longstanding history there.
The new players in the game, through the Department of Homeland Security,doesnothavethatlongstandingrelationshipand
well estabhshed conduit for information to fiow clearly
A n d , I d o n ' t want to oversimplify this, b u t l t h i n k It IS really,
really important that i n a l o t ofcases it boils downtothe right people, in the right place,having an opportunity to sit down and have
a dialogue. I would be happy to sit down with somebody in this
classification issue andhave them sit acrossthetablefromme, as
apolice chief in the nation's capital, and look me in the eyes and
listen to whatlhave to say about what my needs are and then tell
me whylshouldn't have that

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^5
Mr.THOMPSON.You doagood job.
Chief LANlER.Thank you.
Mr.THOMPSON.Thank you very much,
lyield back. Madam ChairThank you
Ms.HARMAN.Thank you,Mr.Chairman.
The chair now yields 5 minutes for questions to the ranking
member,Mr.I^eichert,from^ashington.
Mr.I^EICHERT.This brings back memories tome.
Ms.HARMAN.Nightmares.
Mr. I^EICHERT. Yes. Everything thatyouhave each said I strug
gled with as the sheriff in Seattle. Andthe sharingof information
between the federal agencies andlocal sheriffsofficeand the local
Seattle I^olice Department and the other ^8 police departments in
I^ngCounty,every one of those chiefs would be saying exactly the
samething that both of thewitnesses have said today.
^hen you talk about information sharing, of course one of the
things that we know isanecessity in these days IS technology
Are either ofyou familiar with the L l n ^ System?
Chief LANlER.Yes.
Mr.I^ElCHERT.Areyouparticipantsinthatprogramor beginning
to become involved in that program or where do you stand, each
of you?
Chief LANIER, ^ e are notyet, but we are in the process of getting there As you might have seen in some of my public testimony
lately, technology is stillasignificantstrugglefortheMetropolitan
I^oliceDepartment.^earemoving forward and bringing up our fusion center, so we areonour way, and we will be full participants
in the Lln^I^rogram, so we are getting underway with that now.
Mr.I^ElCHERT.Croat.
Mr. DOWNING. Yes. And we, as well, arebeginninginthat process, ^ e have cops L l n ^ , which connects the agencies within the
different counties, andsomeofthecounties that can't afford it are
not participating but looking forward to the installation of L l n ^ ,
whichwill also bring inthe federal system.
Mr I^ElCHERT YesB^ho is the lead on the L l n ^ Systems in your
areas?
Mr. DOWNING. Chief Baca,ChiefBratton, Chief Corona, from Cr
ange County
Mr. I^EICHERT. ^ ^ 0 from the federal government, doyou know?
Mr. DOWNING. ^ e l l , S t e v e T i d w e l l i n t h e L . A . officeis assisting
us with that.
Mr B.ElCHERTljust visited your fusion centeracouple weeks
ago.
Chiefs
Chief LANIER. In Washington, D.C, it is being coordinated
through the Council of Covernments, the CCC, which is regional.
Mr. I^EICHERT. How big is your department?
ChiefLANiER.^e w i l l b e a t ^ , 9 0 0 by t h e e n d o f t h i s y e a r and
probably^,200 by the end of ne^t year.
Mr. I^EICHERT.How many people are assignedtohomelandsecu
rity?
Chief LANIER. You are going to get me in trouble with my local
constituents, b u t l w i l l tell you
^Laughter.1

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I have approximately ^Oin the Cffice ofHomeland Security and
Counterterrorism,butldohaveaSpecialCperationsDivisionthat
is 225, 2^0 people, and I am about to merge those two units together so that every member of the Special Cperations Division
will now takepartinthat.
Mr I^EICHERT And other than I^ASImoney,are you getting any
federal assistance, grant monies to pay for those bodies?
Chief LANiER.To pay for those bodies?
Mr.I^EiCHERT.Yes.
Chief LANIER.Now you are really going to get me introuble.
Mr.I^EICHERT.Iknow the answer tothat one,so go ahead.
^Laughter.1
Chief LANIER. There are a variety of grant funds under the
homeland security program, LETI^I^,as you know, and the state
funds as well, the L^ASI, but we struggle to get sometimes reimbursement for federal duties that involve dignitary protection and
things
Mr.I^ElCHERT. You have some unfunded mandates.
Chief LANlER.Yes.
Mr.I^ElCHERT.Yes.
Mr.Downing?
Mr DowNiNG Yes Cur department is 9,500B^e have just under
^00 assigned to the Counterterrorism Bureau,which IS primarily
the terrorist related matters, ^ e are one o f t h e si^ tier one cities
inl^ASI. This year'sL^ASIallowsus toget 25percent of thetotal
grant toward personnel costs.
Mr.I^EICHERT.Ckay.Ihave no further questions.
lyieldThankyou
Ms. HARMAN. I thank the ranking member, and I have a few
questions.
Eirst,Iwant to thank hoth witnesses for excellent testimony
Cur goal in this session of Congress is to put ourselves in your
shoes tothink about what are the opportunities and frustrations of
our local first preventers and how can we make the sharingof in
formationwith them and the tools that they need more effective?
Becauseifyoucan'tdoyour jobs well, wecan'tprotect America. It
is that simple.
It is not all in Washington, D.C. I know that may come as a
shock t o a f e w folks,but it is not all here.
And vertical information sharing has to be adequate, and horizontal information sharing at the local level has to beadequatetoo.
And that is another issue that neither of you raised today but it
is something that has been raised by prior witnesses
Bothofyouprovidedsomeuseful information.
I am quitehorrifiedto think, Mr. Downing, that if thelnformation about that cell inTorrancehad had some internationalconnection, we might have missed the whole thing.
That gets my attention, because in a couple of weeks when we
areinTorrance, California,congratulating theTorrancel^D for excellent local police work, we are going to talk about how devastatingcouldhaveheenattacksby ahomegrownterroristcell living ne^t door to some of my constituents had we not prevented
them from doing anything. S o l j u s t want to observe that.

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^7
And, Chief Lanier, you makeavery good point when you say it
is your obligation to make clear to federal agencies what you need
and whyyouneedit. Imean, t h a t i s a j o b y o u h a v e , andyou can't
just assume they are going to figure it out In fact,they are not
going to figure it out. You have to be an advocate for your own
needs.
And it is inthatconnectionthati want to ask this question.The
chairman of the full committee has had a long and friendly conversationwithCharles AllenoftheDepartmentofHomelandSecurity'sCfficeoflntelligenceandAnalysis^wecallitl^A^aboutthe
need forlocalparticipationeitherontheNCTCor connected tothe
NCTC. And someof us weredismayed t o l e a r n i n a visit we made
recently t o t h e NCTC that the newagency about tobe created,
called the Interagency Threat Assessment and Coordination Croup,
the ITACC, might have on it one representative of law enforcement.
In questions to Charlie Allen last week, he said,^^^ell, maybe
that will change to two or three." I clearly don't know how many
members of the ITACC there will be, b u t l w o u l d just like to ask
both of you, as consumers of necessary intelligence,what do you
think about the idea of one person or maybe two or three participating inthe NCTC process?
Chief LANIER. ^ e l l , i t i s atleast astart, but I willsay this- I^olice departments around the country have very different needs
based on the jurisdictions they serve as well as the capabilities that
theyhave.
So in the Metropolitan I^oliceDepartment,alarge city police de
partment, I have a lot of capabilities that a small town police department may not have. But at the same token, that small town
police department, or sheriffs department, may have some
vulnerabilities and some other understandings t h a t l d o n ' t have.So
I think the representation needs to be fair and representative
across the board.
State agencies, state patrol, highway patrol officers have dif
ferent skills andcapabilitiesthantransitpolice,thanurbanpolice,
thanuniversity police. So there needs tobe an adequaterepresentation.
Ms HARMAN.Mr.Downing?
Mr.DoWNlNG. I absolutely agree, a n d t o t a k e i t even further, in
coming back from the I^.I^., they have 17 people in 17 different
partsof the world, andthey aregrowingto 21. And asNew York,
theyhaveeightpeopleineightdifferentpartsofthe worldas well.
^eareinterestedinthataswell,becausewearenotsurethatthe
localperspectiveis being placed on foreign intelligence.
Ms HARMAN I t h a n k you for that, andlactually share that big
t i m e . I t h i n k that information sharing has to go horizontally and
vertically and that your help in designing the products that you
willuse is absolutely indispensable Ctherwise,they may not be
usefultoyou.
It is your point. Chief Lanier,we have to be advocates for what
we need and why we need It, s o l t h i n k you should be sitting inside
the room when our National Intelligence Eusion Center is developing productsthatyouaresupposedtouse.Andthenlthinkour

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^8
ne^t problem istomake surethatthe classificationsystemgetsrevisedsothatyouareinapositiontousethem.
My time has expired.Idon't want to abuse this opportunity And
Ihave spoken more thanothers.
Let me just ask either of the members, starting with Chairman
Thompson,whether you have anyconcluding remarks.
Theranking member?
Mr.I^ElCHERT.Thank you,Madam Chair.
I j u s t want to, again, thankyou for beinghere and taking time
out of your busy schedule to testify And as we have learned today
andprevious hearings fromthis information, wehavealot of work
to do, and we look forward to working with you to help make our
country safer.
Thank you all.
Ms HARMAN The hearing is adjourned
^^^ereupon, at 11^^^ a.m., the subcommittee was adjourned.1

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32818

THE RESPONSE OF THE PROGRAM
MANAGER OF THE INFORMATION
SHARING ENVIRONMENT
PART I I
Thursday, April 26, 2007
U.S. HOUSE OF REPRESENTATIVES,
COMMITTEE ON HOMELAND SECURITY,
SUBCOMMITTEE ON INTELLIGENCE, INFORMATION SHARING,
AND TERRORISM RISK ASSESSMENT,

Wasfiington, DC.
The committee met, pursuant to call, at 10:05 a.m., in Room
1539, Longworth House Office Building, Hon. Jane Harman [chairwoman of the committee] presiding.
Present: Representatives
Harman, Langevin, Thompson,
Reichert, and Dent.
Ms. HARMAN. [Presiding.] Good morning. The subcommittee will
come to order.
The subcommittee is meeting today to receive testimony on "The
Over-Classification and Pseudo-Classification of Government Information: The Response of the Program Manager of the Information Sharing Environment."
We are here today because our classification system is broken
and because pseudo-classifications are making efi'ective information
sharing nearly impossible.
A few weeks ago, we heard from experts in these areas who described an expanding problem that is making securing the homeland harder. Last fall, the president appointed Ambassador Ted
McNamara to take on the pseudo-classification issue, and the ambassador has worked a solution that the White House is reviewing.
His proposed controlled unclassified information, CUI, framework holds a lot of promise, but no matter how good this solution
might be, i f federal agencies don't get on board, and fast, wellplanned and well-meaning efforts will fail.
I commend Ambassador McNamara, with whom I have met several times, for including state and local law enforcement officers in
his process from the outset. The ambassador's working group welcomed law enforcement as part of the process from day one, as well
they should have.
Police and sheriffs officers are among the people who will be
most affected by this new CUI framework. As all of us on the subcommittee have stated, we cannot have a successful fix to the pseudo-classification and other information sharing challenges unless
all affected parties are involved in structuring the solution.
(39)

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^0
Ihope that DHS is listening. You should know, and I thinkyou
do,that this subcommittee is extremelyconcernedwiththe absence
of numbers of state and local participants in the new ITACG that
is being developed as an adjunct to the NCTC We think that i s a
problem, and we are going to stay on that problem and hopefully
changewhat is happening.
So in this case, in addition to Ambassador McNamara and our
DHS and EBI witnesses, we are joined this morning by Mark
^adra, the assistant commissioner of the Elorida Depariment of
LawEnforcement.Mr.^adrawilltalk tous about thepromise and
potential pitfalls of the CUI framework from his state level perspective.
Iwould note with sadness, however, that we are not joined today
by Colonel Bart Johnson of the NewYork State Police,who had
been invited as a witness and was originally scheduled to testify.
Late yesterday, two o f h i s officers were shot while attempting to
apprehend a criminal suspectonTuesday, and one,Trooper David
Brinkerhoff, died from his injuries Our condolences, and obviously
the condolences ofthe entire Committee on Homeland Security, go
tohis family and his colleagues.
Andlaskunanimous consent to enterhisprepared remarks into
the record at this point Hearing no objection, we will do so
[The statement of Colonel Johnson follows:]
FOUTH^Rl^GOIID
Pl^^PAl^I^DSTATI^:^^^T0PC0I.0I^5:i.RAIITR.^0HI^S0^

APi^ii.^^,^007
Chairman Thompson, Ranking Memher I^ing, Chairwoman Harman, and Members of the Suhcommittee.Isincerely appreciate the opportunity to appear before
you today to discuss state and local law enforcement's involvement with standard
i^ingprocedures forsen.sitivehutunclassifiedISRU^information and related issues
impactinglocal,state,andtrihallawenforcement.
Ihave served with the New York State Police for more than
years, andlhave
over^Oyearse^perienceinlawenforcementPresently,Iserve as the Deputy Superintendent in charge of Field Command. I oversee the Rureauof Criminal Investigation, the Uniform Force, the Ofiice of Counter Terrorism, Inteihgence, and the
associated specialdetails of these units. I alsohavetheprivilegetoserveasthe vice
chair of theU.S. Department of^ustice^s^DO^^GIobal^ustice InformationSharing
Initiative ^Global^ Advisory Committee, the chair o f t h e Criminal Intelligence Coordinating Council ^CICC^ and o f t h e Global Intelligence f o r k i n g Group ^GI^GI.
In these capacities,Ihave heen fortunate to actively participate in discussions relating tointeihgencereform, a n d l have providedsignificantinputto the federalgovernment regarding information sharing andintelligence.
l e x p e c t t h a t w e w o u l d a l l agreethatthecurrentnumberofsensitivebutunclassified^SRU^ designationsand thelackofcon.sistent policiesand proceduresfor unclassified information severely hinder law enforcement's ability to rapidly share in
formation with the officials that need it toprotect our country,its citizens,andvisitors. Much progress has been made recently in addressing the classification issue
by way of Guideline :3,andmuchoftheheadway is duetotheleadershipandefforts
of Ambassador ThomasE.McNamaraoftheOffice of theProgramManager for the
Information Sharing Environment ^ISE^ and the other relevant federal agencies. I
amgratifiedthatlhavealsohadtheopportunitytocontrihuteto this effort.
For many years, law enforcement agencies throughout the country have been involved in the sharing of information with one another regarding investigations,
crime reporting, trend analysis, and other types of information considered law enforcement sensitive.Oftentimes,theseinvestigationsinvolvepuhlic corruption,organi^ed crime, narcotics, and weapons smuggling, and they frequently involve the use
of undercover operations, confidential sources, and lawful covert electronic surveillance. State, local, and tribal law enforcement agencies do not have the ability to

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^1
classify their material,andwe must be assuredthat strict controlis used whenhandling and distributing this type ofdata to ensure that the information and investigation arenotcompromisedandthatwedonotsustainalossofahfe. Also, since
SeptemherII,^I^OI, law enforcement agencies nationwide are more fully involved
in the prevention, mitigation, and deterrence of terrorism, and consequently, they
receive moreinformationandintelligencefromtheirfederalcounterparts.
Moreover,many lawenforcement agencies generatetheir owninformationandintelligence^muchofwhichiscollectedinasensitivemanner^thatis passed toother
law enforcement agencies for their possible action. Law enforcement agencies have
also begun to share information with new stakeholders in the fight against terrorism. They now routinely shareinformationwithnonlawenforcementgovern
ment agencies and members of the private sector in order to assist in prevention
efforts This activity has altered the information sharing paradigm.
Another issue that exists within the current environment is the apparent ^^overclassifications^ ofmaterial. Over-classifying data results in information and intelligencenot being sent tothelawenforcementprofessionals onthe frontlines of the
fight against terrorism in this country—the ofiicers, troopers, and deputies in the
field. It still appears to beadifficult process for the federal intelligence community
todevelop^^tear-line^^reports that canbepassedtolawenforcement so thatthe intelligence can he operationali^ed in an effective and proactive manner.Up until a
short time ago, there was a lack o f a coherent, standardised process for marking
and handling SRU data Lack of consistency in markings led to confusion and frns
tration among local, state, tribal, and federal government officials and also a lack
of confidence in knowing that the information that was shared was handled in an
appropriate and secure manner Recent studies bythe Government Accountability
Office, the Congressional Research Service, and other institutions have confirmed
andhighlighted the problems created bythe variousmarkingsand thelackofcommon definitions for these designations. These studies revealed that there are over
1^0 different designationsbeingusedtomarkunclassified information so that agencies can ^^protect^^ their information. These pseudo-classifications did not have any
procedures in place outliningissues such as whocan mark the material, thestandards used tomark themateriah whocanreceive the informations how the information should he shared, who it could he shared with, and how it should be stored,
and what impact, if any, these markings have on the Freedom of Information Act.
A s a r e s u l t ofseveral key federal terrorismrelated information sharing authorities, such as the Intelligence Reform andTerrorism Prevention Act of ^00^, E^ecutiveOrder 1:3:3^^, and theDecember^0f^5Memorandum fromthe President regarding Guidelines and Requirements in Support ofthe Information Sharing Environment,specifically Guideline:^,much work has beenundertakentobringaboutintelligence reform in this country. Local, state, and tribal law enforcement have been
andcontinueto be activeandcollahorativeparticipantsinthis undertaking.
As a representative of the New York State Intelligence Center ^NYSIC^^ and
DO^^sGlobal Initiative, Ihave participatedin a number ofeffortstoimplementthe
guidehnes andrequirements that will supportthe ISE. Recognising the need to develop a process for standardising the SRU process, the CICC and GIWG commissionedatask team in May ^00^ to develop recommendations that would aid local,
state, and triballawenforcement agencies in fully participating in the nationwide
information sharingenvironment. This work was done with the Federal Rureau of
Investigation,theU.S.Department of Homeland Security,the Office of theProgram
Manager for the Information Sharing Environment, and other law enforcement entities.The recommendations made by that team were provided to an interagency SRU
working group. Snbsequently,Iparticipated on the SRUCoordinating Committee
(CC^thatwasestablishedtocontinuetheGuidehne^^implementationeffortshegnn
by the interagency group.
Asyou know, the SRU CC recommendations are currently under review and
awaiting ultimate Presidential approval. The CC recommends adoption o f a new
Controlled Unclassified Information ^CUD Regime that is designed to standardise
SRUproceduresforinformationin thelSE.Therecommendationsincluderequiring
controls on the handling and dissemination of SRU information. Ry and large, I h e
lieve local, state, and tribal agencies will supportthe newCUI Framework because
they want to be active participants in the ISE and are supportive of clear and easily
understandableprotocolsfor sharing sensitive information.
Local, state, and tribal agencies want to be able to receive terrorism, homeland
security.and law enforcement information from the federal government and clearly
understand, based on the markings on the data, how the data should be handled
and stored and to whom the information can he released. The data should he dis^Formerly known as the Upstate New York Regional Intelligence Center (UNYRIC).

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32821

seminated as broadly as possible to those withaneed to know, including nonlaw
enforcement public safety partners, public health officials, and private sector entities. Conversely,local,state,and tribal entities are frequently the first to encounter
terrorist threats and precursor criminal information, and the new CUI markings
will assist with sharing that type ofinformation both vertically and horizontally
while respecting originator anthority.
A numberof critical issues must be addressed at the local, state, tribal and federal levelsin orderto facilitate asuccessful CUI Regimeimplementation, including
training,policyandproceduralchanges,systemmodificationsandenhancements,
andfunding to implement theserecommendations.
Emphasis must he placed on the development and delivery of training to local,
state, tribal, and federal personnel on the CUI Framework. Recause of the possibility of wide distribution of sensitive information, it is imperative that training be
given a priority so recipients have a clear understandingof markingand handhng
procedures. Inordertomaximi^e theelfectivenessofthetrainingand reach theappropriaterecipients at thelocal,state,andtriballevels,Irecommendthat it beprovidedonaregional basis across the country to personnel in the designated statewide fusion centers. Focusingon fusion center officials in the initial delivery phase
directly supports the national information sharing framework that calls for the in
corporation into the ISE ofanational network of state and ma^or urban area fusion
centers.
In support of the ISE, state and ma^or urban area fusion centers will be contrib
uting information to ongoing federal and national-level assessments of terrorist
risks^ completing statewide, regional, or site-specific and topical risk assessments^
disseminating federally generated alerts, warnings, and notifications regarding
time-sensitive threats, situational awareness reports, and analytical products^ and
supporting efforts to gather, process, analyse, and disseminate locally generated information such as suspicious incident reports. Over
states currently have operational fusion centers, and it is critically important that center personnel receive
timely,relevant training to enable them to fully function in the national ISE.
Training will provideinsight andanunderstandingofhow the CUI handlingand
disseminating requirements affect business processes. This will cause agencies to
execute policy and procedural changes and system modifications. There are potentially over 1^,000 local, state, and tribal law enforcement agencies in our country
that could beimpacted by the implementation of the CUIFramework.Ihelievethat
the federal government—working collaboratively with local, state, and tribal authorities—should develop model policies and standards to aid in the transition to
the Framework. Funding issues will be ama^or factor forlocal agencies, especially
inregard tomodifying^enhancing information technologies and applyingencryption
requirements to ensure proper transmission, storage, and destruction of controlled
information.
It will be through these ongoing collaborative efforts regarding Guideline :3 that
the ISE will takeanothersteptowardsheingthemeaningful andcooperativesharingenvironmentthatit wasintendedtohe.Theseactions willresultinthematurationofinformationsharingamongstate, local, and tribal agencies^ private entities,
and their federal counterparts, which will in turn assist in our collective efforts to
prevent another terrorist attack and reduce violent crime. Our goal should be to
share a s a r u l e and withhold by exception, according to rules and policies that pro
tecttheprivacyandcivilrights ofall.
Reinginvolvedin the CUI Frameworkdevelopmentprocesshasbeen arewarding
andsometimesarduons experience. I t i s a p r o c e s s t h a t I andthe entire state, local,
and tribal lawenforcement community take very seriously. It is veryencouraging
to me that the Office ofthe Program Manager and other relevant partner federal
agencies havemade great strides in recognising the value that local,state,andtribal officials bring to the table, ^ e wantto remain active, ongoingpartners and participants with the federal government as we work towards a national information
sharingenvironment.
Mr. Chairman, I thankyouandyourcolleagues forgivingme theopportunity to
speak to you today,andIhope my comments have been of some use to you in your
deliberations.

Ms. HARMAN. B u t l w o u l d a l s o n o t e t h a t our police, sheriffsand
firefighters are our front lines They take all the risks to keep our
country safe,andon behalf ofagrateful nation,we send,again,our
condolences and appreciationto the NewYork State Police.
Today, we willalsofocus on howbest to support theCUIframework at the federal level That is why DHS and EBI are testifying

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Last month, we learned that every agency in the federal governmenthasinvented pseudo-classifications for their particularbrand
ofinformation. The increasing number of these markings has led
to tremendous confusion.
Obviously, that proliferation isaproblem, and our goal here is
to find out whether Ambassador McNamara's new framework is
one that will be embraced, as it should be, by those federal agencies that are in the same line of work. I f we can't get it right at
the federal level, wecan't expect state and local entities to doany
better. We are late in this process, and we can and should move
faster.
I hope this hearing will help us figure out how to move from a
goodproposaltoagoodadopted strategy across thefederal government and with our state and local partners.
I would like to, again, extend a warm welcome to our witnesses
who will be talkingaboutthese issues, and I look forward toyour
testimony.
I now yield time for opening remarks to the ranking member,
Sheriff Reichert.
Mr. REICHERT. Thank you. Madam Chair. I like that ^^sheriff"
title. Thank you for using that.
I , first o f a l l , apologise. My voiceis alittlehoarsethismorning.
I am experiencingsome effectfrom theoak pollen, I t h i n k , that is
fiying around out here.lam not used to that back in Seattle.
Second, let me also share my condolences with the New York
State Police Ihave experienced the loss of heartbreak myself in
my^^year career,and that isatoughonetotake.
Also, A m b a s s a d o r , I w o u l d l i k e t o t h a n k you for your briefing
earlier this week I t w a s v e r y h e l p f u l , a n d t h a n k y o u a g a i n f o r
being here today to share your thoughts on your new ideas and
plans.
l a l s o want to say t h a t l c e r t a i n l y recognise the difficulty that
all three of you have in bringing the nation's state and local and
federal agencies together to share information. Just on the local
level,in the Seattle region,Iknow how tough that can be So your
job IS going to be very tough, as we all recognise, but we certainly
want to beapart of the solution with you
Sotodaywemeetonatopic of pseudoclassification, which is the
use of documentcontrols that protect sensitive butunclassifiedinformation. This is the second hearingin a series on the problems
of over-classification and pseudo classification and information
sharing.
I believeitisessential that sensitiveinformationbeable tofiow
to those that need it, a n d l s h a r e d a s t o r y the other day with the
ambassador, myownpersonalexperience within thesheriffsoffice,
people holding and withholding information and other police departments not wanting to share the information and therefore resulting in maybeacase not being resolved or solved or being solved
muchlater than it could have.
Information needs t o f i o w i n atrusted information sharingenvironment. The people who share sensitive information need to be
able to trust that different federal agencies, as well as different
states and localities, will treat their information with respect and
protect sensitive information.

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Currently, there is no trusted information sharing environment
for sensitive,unclassified information.There are currentlyover 107
unic^ue markings for sensitive information and over 1^0 different
labeling or handling processes, as we talked about the other day
This disparitycreates confusion and leads toinformation not being
p r o p e r l y p r o t e c t e d l f a f e d e r a l agency can't trust that sensitive,
unclassified information will be protected. It will simply classify the
document as secret or above, severely restricting access.
Ifaprivatesector entity or state^ocalagencydoesnothelieveits
information w i l l b e protected properly, it simply will not share
that, andlhave experienced that myself So without trust, the in
formation sharing environment breaks down.
Creating a trusted environment is essential to the work o f t h e
programmanager. Cleaning upamessysystemof sensitivebut unclassified designations is essential to creating that trust.
We are looking forward to the program manager's testimony as
well as the testimony of our DHS and EBI witnesses who will be
able todiscusshowthesepolicies are progressingandhow we can
ensurethe information sharing isasuccess.
Eromthe second panel,hopefully,we will hear from state law enforcement. Wehavehad arole i n t h e process. The state andlocal
perspective is essential,becausewithout the state and localbuy-in,
aslsaid,collaborationwill lead to not sharing information.
We appreciate your testimony and your time this morning, and
thank you again for being here.
With that,Iyield the balance of my time
Ms.HARMAN.The gentleman'stime has expired.
The chair now recognises the chairman of the fullcommittee,the
gentleman from Mississippi, Mr. Thompson, for an opening statement.
Mr.THOMPSON.Thank you very much, MadamChair, a n d l j o i n
you in welcoming our distinguished witnesses today to this impor
tant hearing on the work being done by Ambassador McNamara.
I alsojoinyou andour rankingmembers and others in expressingour heartfelt sympathies to the NewYork State Police in the
loss of their officer.Any front-lineperson puts his or herlife onthe
line every day,and,unfortunately, sometimesthesethingshappen.
A n d t h a t i s w h y what we and is soimportant everyday andwhat
somany others do.
But from information sharing, I think Representative Reichert
spoke volumes when he said it is important to have information
availablein realtime. I was in local governmentbefore coming to
Congress and I remember when agencies bragged about knowing
something, and when other folks found out about it weeks and
months later, they would say, ^^Well, we knew about that all the
time"
To me, i t i s a nobrainer not to share the information i f we are
supposedly all looking for thebadguys—orgals,insomeinstances.
Ms.HARMAN.You had it right the first time,Mr.Chairman.
[Laughter.]
Mr THOMPSON But the notion is we absolutely need to do it, but
we are concerned that sometimes government over-classifies infor
mation so that it can't get out into the field.

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And, Ambassador, I knowyou have a tough challenge ahead of
you. We talked a little hit about it before the hearing, and I am
looking for this new framework. I want the commitment to be
there,to carry it forward. Iwould not liketoseeitbecomeanother
in a long line of acronyms that get put on the shelf never to be
taken off S o l l o o k forward to your testimony, a n d l l o o k forward
topushing forward thenew ideas.
The comfort ^one, as all of us know, is we have always done it
this way, but that doesn't necessarily mean that it is correct. And
these are different times, different challenges and it calls for broader strategies.
So I look forward to the testimony and the f^uestions to follow.
Andlyieldback.
Ms.HARMAN.The gentleman'stime has expired.
A n d l w o u l d just observe, the comfort ^one ended on 9^11 There
is no comfort ^one anymore l a m looking atapress clip today in
the New York Times, which says, ^^British anti terrorism chief
warns ofmoresevere al^a'ida attacks."These arein Britain, but
obviously we can imagine this here.
So in that spirit, I would hope that what we are talking about
never hits a shelf. That should not even be an option. We have to
change theway we do business.
Iwelcome our first panelof witnesses.
Our first witness. Ambassador Ted McNamara, is the program
manager of the Information Sharing Environment,apositionestab
lishedbythelntelligenceReformandTerrorism Prevention Actof
^00^,astatutelam very familiar with.
Ambassador McNamara is a career diplomat who originally retired from government service in 199^, after which he spent ^
years as president and CEO of the Americas Society and Council
ofthe Americas in NewYork. Eollowingthe September 11 attacks,
he was askedtoreturnto government serviceasthesenior advisor
for counterterrorism and homeland security at the Department of
State
Our second witness, Dr Carter Morris, is currently director of in
formation sharing and knowledgemanagement for the Office of Intelligence and Analysis a t t h e Department of Homeland Security.
That isamouthful.That can't even be one business card.
He is a detailee to DHS from the Directorate of Science and
TechnologyatCIA Most recently,Dr Morris served as the deputy
assistant director of Central Intelligence for Collection where he
helped coordinate all intelligence community collection activities
Thank you for that service.
Our third witness,WayneMurphy,is currently an assistant di
rector a t t h e E B I . Hejoinedthebureau with morethan ^^years
of service at theNational Security Agency in a variety of analytic,
stafi^ and leadership positions. T h e b u l k o f h i s career assignments
haveinvolveddirect responsibility forSIGINTanalysis—thatis
signals intelligence analysis and reporting—encompassingabroad
range of targets.
Without objection, the witnesses'fullstatementswillbeinserted
in the record, and I would ask each witness to summarise your
statements.

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I think this time clock is visible to you, or I think it can be, or
there is a time clock that is visible to you. And we will get right
into questions following your testimony.
Thank you.
We recognize you first. Dr. Morris. Dr. Morris, we are recognizing you first. I am not sure why we are doing that, but that is
what we are doing.
Mr. MORRIS. Didn't realize I was going to go first, but I will be
very happy to do that.
Ms. HARMAN. Dr. Morris, you are relieved of going first.
[Laughter.]

Mr.

MORRIS.

Thank you.

Ms. HARMAN. Because this chair, who must be visually impaired,
skipped the top of the statement.
Ambassador McNamara, you are recognized first. I think that
does make more sense, because you are going to present the information, and then we will follow on with two people who will comment on it, which seems obvious. I apologize for the confusion.
STATEMENT OF AMBASSADOR THOMAS E. McNAMARA,
PROGRAM MANAGER, INFORMATION SHARING ENVIRONMENT, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
Mr. MCNAMARA. Thank you very much. Madam Chair.
Chairman Thompson, Madam Chairman Harman, Ranking Member Reichert and members of the subcommittee, it is a great pleasure to be here with my colleagues today. And I want to thank you
for the continued focus and priority for building an effective information sharing environment that you and the committee have
shown over the course of many months.
I hope to especially discuss with you all work on the presidential
priority to standardized sensitive but unclassified information.
Our current efforts to provide the president recommendations for
standardizing SBU procedures, sensitive but unclassified, have
been successful because of the strong interagency commitment that
we have found. I want to note that Wayne Murphy, who is a member of the SBU Coordinating Committee with me, has been a part
of this process since the very beginning and, with his colleagues in
the Department of Justice and the FBI, have been instrumental in
bringing the state, local and private sector perspectives and concerns to the table.
I also was hoping to thank Colonel Bart Johnson were he here
today, but I will thank him in his absence. He is the chair of the
Criminal Intelligence Coordinating Council of Global Justice Information Sharing Initiative. He has been giving so much of his time
and expert advice to our group, and I join the committee in offering
our condolences to the family of the slain officer and to Colonel
Johnson and his colleagues.
I have a personal sense of this loss. My son is a law enforcement
officer and has been in a situation that occurred in the last 24
hours himself
Also, I would like to thank assistant commissioner for the Elorida Department of Law Enforcement, Mark Zadra, who is here
today, who was our host at the very first national conference on fu-

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sioncenters,whichwasheld earlier this year in Elorida. It was an
excellent,very astonishing, in some respects, conference Over 600
people came to that conference. They closed the rolls for the conference about^or4weeksbeforethe conference began.
Whenlshowed up in this jobayear ago, i f someone had told me
i n a y e a r that that would happen,Iwould have said,^^Well, you
people are just overly optimistic."AndIthink that shows how far
thingshave gone over the course of thelast few years.
Einally, I want to note that the Department of Justice and Department of HomelandSecnrity wereleadersintheinitialeffortto
researchthisissue onSBUandto collect theinformationon which
my committee has been working these last6months
The lack of government wide standards for SBU information is
wellknown. More difficulthas been chartingafeasihle way ahead
to create such standards as part ofasingle regime.Over theyears,
because SBU is not considered a matter of national security concern, there has been no single control framework that enables the
rapid and routinefiow of this type of information.
Throughout the Cold War, executive branch agencies and Congress responded in a piecemeal fashion, an uncoordinated way, to
protectingSBU. Itwas left to each agency to decide on its control
regime.
Eor example, there are close to 107 unique markings and more
than 1^1 different labeling or handling processes and procedures
for SBUinformation. Thesemarkingsandhandlingprocessesstem
from about 280 statutory provisions and approximately 150 regulations.
Protecting information and sharing information are critical and
interdependentfunctionsfor thelnformation sharingenvironment.
Simply stated, sensitiveinformation will notbesharedunless participants have confidence in the framework protecting that information.
Standardizing SBUproceduresisadifficult endeavor mademore
complicated by the complex information management policies and
practices which the government now has. Correcting these defects
is especially important because some categories of SBU truly re
quire controls as strongas those for national security information.
There are sound reasons in law and policy to protect those categories frompublic release,bothtosafeguardthe civil libertiesand
legal rights o f U S citizens and to deny the information advantage
to those who would threaten the security or the public order of the
nation.
Appropriately protectinglawenforcement and homelandsecurity
related sources and methods, for example, are just as valuable to
our nation asprotectingourintelligencesources and methods. The
global nature of thethreat our nationfaces today requiresthat our
entirenetworkofdefendersbeabletoshareinformationmorerapidly and confidently so that those who much act have the informa
tion they need to act
This lack of a single rational standardized and simplified SBU
framework isamajor cause of improperhandling. Itheightensrisk
aversion and undermines the confidence in control mechanisms.
These problems are endemic within the federal government between federaland nonfederal agencies andwiththeprivate sector.

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This isanationalconcernbecausethe terrorist threat tothe nation
requires that many communities of interest, at different levels of
government, share information.
Ms. HARMAN. Ambassador McNamara, let me suggest that you
just describe the new system, and we can get into the arguments
for it and so forth in the question period, because your 5 minutes
has expired.
Mr McNAMARA Okay I w i l l then move to saying t h a t l t h i n k
thisnewsystemwillenhanceour ability toshare vitalinformation
at the state, federal, local, tribal and private sector entities and
also with our foreignpartners.
There are three major elements to the standardized SBU system
that I am proposing. Eirst, is the CU designation. The committee
hasdecidedthatacleanbreakwiththe current SBUsystemwould
begin by callingit, controlled, unclassified information, CUI, thus
eliminating the old term of SBU and any residual or legacy con
trols and habits that have grownup.
Secondly, CUI markings, there will be a CUI framework recommended that also contains mandatory policy and standards for
making safeguarding and dissemination of all CUI originated at
the federal government level and shared in the ISE regardless of
the medium used for its display, storage or transmittal This
frameworkincludes a very limited markingschemathat addresses
both safeguarding and dissemination.
Thirdly, there will be CUI governance recommended. A central
management and oversight authority in the form of an executive
agent and an advisory council would govern the new CUI frame
work and oversee its implementation. This CUI framework is one
of the essential elements among many elements that make up the
ISE
And since my time is short and o v e r , I g u e s s , I w i l l say t h a t i
wouldliketoclosebysayinghowhelpfuland important it is tothe
workthat I am doingfor the Congress tofocuson this matter, as
this committee and subcommittee has done This i s a h i g h p r i o r i t y
matter creating the ISE and in particular it is important that the
amount and quality of thecollaborationon implementing thesereforms be noted and enhanced so that we can strengthen our
counterterrorism mission at all levels of government.
Thankyou.
[The statement ofMr. McNamara follows:]
PlIi:PAlIl^:DSTATI^^:^2:^TOI^A8AS^ADOI^THO^A^E.MGNA:vtAI^A

^.^^^^^^^^^^^^
Chairwoman Harman, Ranking Member Reichert, and Memhers of the subcommittee: I am pleased tobe here with my colleagnes and wantto thankyou for
your continued focus and priority to building an effective Information Sharing Envi
ronment IISE^.
As you and the Committee address classification of information issues,Iwould
like toupdateyouon aPresidential priority tostandardi^eprocedures forSensitive
Rut Unclassified^SRU^ information.Thisis a priority because if we donot havea
manageable SRUframework,we willnot have aneffectivelSE.
Information vital to success in our protracted confiict with terrorism does not
comemarked^^terrorism information^^^ it can and doescome from many sources, including from unclassified information sources. Yet we lack a national unclassified
control framework that enables the rapid and routine fiow ofinformation across

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Federalagenciesandtoand fromourpartnersinthe State,local, trihalandprivate
sectors. This is especially important because some categories of unclassified informationrequire controls asstrong as thosefor national security information. There are
sound reasons toprotectthosecategories from public release, both to safeguard the
civil liberties and legal rightsof U.S. citizens, and to deny thelnformation advantage to those who threaten the security or public order of the nation
This lack o f a single, rational, standardised, andsimphfied SRUframeworkisa
ma^or cause of improper handling It heightens risk aversion and undermines confidence inthe controlmechanisms.Thisleads to both improper handhng andunwillingness to share information. These problems are endemic within the Federal government, between Federal and non-Federal agencies and with the private sector.
This is a national concern because the terrorist threat to the nation requires that
many communities of interest, at different levels of government, share information.
They must share because they have each have important responsibilities in coun
tering terrorism. The problem exists at all levels—Federal, State, local, tribal, and
the private sector.AII have cultures that are traditionally cautious to sharing their
sensitive information, but this must he addressed if we are to properly and effectively share sensitive hut unclassified information. Only when the Federal govern
mentprovidescredihieassurance t h a t i t c a n protect sensitive data from unauthorised disclosure through standardised safeguards and disseminationcontrols will we
instill confidence that sensitive informationwill he appropriately shared, handled,
safeguarded,andprotected,andthus make sharing part of the culture.
^ ^ . ^ ^ ^ ^ ^ ^ r ^ ^ ^ ^ ^81^^1^1^^^^^^^^^

Let me note at the outset that I will focus here on ^^unclassified^^ information.
Classified information is, by law and regulation, controlled separately in a single
system that was estahlished early in the Cold ^ a r years. The classification regime,
currently governed hy Execntive Order I^^5^, as amended, applies to^^national security information,^^which inclndes intelligence,defense,and foreignpolicy information. Other information, which legitimately needs to be controlled, is controlled by
agency-specific regimes. Collectively, these regimes address information referred to
asSensitiveRutUnclassified^SRU^information. SRUinformationhasgrownhapha^ardly over the decades in response to real security requirements, but this information cannot beencompassedin the subject specificclassifiedcontrol regime. The
result is a collection of control mechanisms, in which most participants have confidence only wheninformation is sharedwithin an agency—and sometimesnot even
then.
Let me give you some understandingof how complex SRU is: Among the ^0 departmentsand agencies wehavesurveyed, there areatleast If^^uniquemarkings
andmorethan I^Idifferent labeling orhandlingprocessesandproceduresfor SRU
information. Even when SRUinformationcarries the same label marking t^e.g. For
Official Use Only^, storage and dissemination are inconsistent across Federal agencies and departments. Recause such markings are agencyspecific, recipients of SRU
information inadifferent agency must understand the processes and procedures of
the originating Federal agency for handling the information, even if their agency
uses the same marking. The result is an unmanageable collection of policies that
leaveboththeproducersandusersofSRUinformationunabletoknowhowapiece
ofinformation will be controlled as it moves through the Federal government and
therefore reducing information sharing.
I would liketohighlight^ust two examples to convey the confusioncreatedby the
current SRUprocesses.
Thefirst example isasingle marking that is appliedto different types of information.Four agencies ^DHS, DOT, USDA and EPA^ use ^^SSI" to mean ^^SensitiveSecurity Information.^^However,EPAhas also reported the use of ^^SSP^tomean^^Source
Selection Information^^ ^i.e. acquisition data^. These types ofinformation are completely different andhave vastly different safeguardingand dissemination requirements,hut stillcarrythesameSRUmarking acronym. In the same way, HHSand
DOE use ^^ECI^^ to designate ^^Export Controlled Information,^^ while the EPAuses
^^ECP^ to mean^^Enforcement Confidential Information.^^^^Export Controlled Information^^ and ^^Enforcement Confidential Information^^ are clearly not related, and in
eachcase, very different safegnardinganddisseminationcontrolsareapphed tothe
information The second example is o f a single marking for the same information,
butwithnouniformity in control.Ten agencies usethemarking ^^LES^^or ^^LawEnforcementSensitiveBHowever,the term is not formally defined by most agencies
nor are there any commonrnles to determine whocan haveaccess to^^law enforcement information.^^ Therefore, each agency decides by itself to whom it will dissemi
nate such information. Thus, an individual can have access to the information in
one agency but be denied access to the same information in another. Further con-

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fusing the situation, SRU markings do not usually indicate the originating entity.
As a result, even if a recipient had access to all the different control policies for each
agency, he or she could probably not determine what rules apply because the recipient usually does not know which agency marked the document.
Protecting the sharing of information is a critical and interdependent function for
the ISE. Simply stated, sensitive information will not be shared unless participants
have confidence in the framework controlling the information. Standardizing SHU
procedures is a difficult endeavor, made more complicated by the complex information management policies.
/ / / . Unclassified Information
Framework
Imperative
Producers and holders of unclassified information which legitimately needs to be
controlled must have a common framework for protecting the rights of all Americans. In the classified arena, we deal with information that will, mainly, be withheld
from broad release. In the unclassified arena, we deal with information that is
mainly shareable, except where statute and policy require restrictions. Agencies
must often balance the need to share sensitive information, including terrorism-related information, with the need to protect it from widespread access.
A new approach is required. Existing practices and conventions have resulted in
a body of policies that confuse both the producers and users of information, ultimately impeding the proper fiow of information. Moreover, multiple practices and
policies continue to be developed absent national standards. This lack of standards
often results in information being shared inappropriately or not shared when it
should be. In December 2005, the National Industrial Security Program Policy Advisory Committee, described the consequences of continuing these practices without
national standards in the following manner ". . the rapid growth, proliferation and
inclusion of SBU into classified contract requirements without set national standards have resulted in pseudo-security programs that do not produce any meaningful
benefit to the nation as a whole." Clearly this situation is unacceptable.
IV. A Presidential
Priority
The lack of government-wide standards for SRU information is well-known. More
difficult has been charting a reasonable way ahead to create such standards. This
is an enormously complex task that requires a careful balance between upholding
the statutory responsibilities and authorities of individual departments and agencies, and facilitating the fiow of information among them—all the while protecting
privacy and civil rights. We were successful in creating such a regime for classified
national security information hy setting national standards and requiring that they
be executed uniformly across the Federal government. In addition, we established
a permanent governance structure for managing the classified information regime.
A similar approach is necessary to establish an unclassified information regime,
with standards governing controlled unclassified information.
As required by the Intelligence Reform and Terrorism Prevention Act of 2004, on
December 16, 2005, the President issued a Memorandum to the Heads of Executive
Departments and Agencies on the Guidelines and Requirements in Support of tlie
Information Sharing Environment, which specified tasks, deadlines, and assignments necessary to further the ISE's development. Guideline 3, of his Memorandum,
specifically instructed that to promote the sharing of, ". . .Sensitive But Unclassified (SBU) information, including homeland security information, law enforcement
information, and terrorism information,' procedures and standards for designating,
marking, and handling SBU information (collectively "SBU procedures") must be
standardized across the Federal government. SBU procedures must promote appropriate and consistent safeguarding of the information and must be appropriately
shared with, and accommodate and reflect the imperative for timely and accurate
dissemination of terrorism information to, State; local, and tribal governments, law
enforcement agencies, and private sector entities."
An interagency SBU Working Group, co-chaired by the Departments of Homeland
Security (DHS) and Justice (DOJ), undertook an intensive study and developed several draft recommendations for a standardized approach to the management of SBU.
Its work provided a solid foundation for completing the recommendations. It was de'Pursuant to the ISE Implementation Plan, and consistent with Presidential Guidelines 2 and
3, the ISE will facilitate the sharing of "terrorism information," as defined in IRTPA section
1016(a)(4), as well as the following categories of information lo the extent that they do not otherwise constitute "terrorism information": (1) homeland security information as defined in Section
892(f)(1) of the Homeland Security Act of 2002 (6 U.S.C. §482(0(1)); and (2) law enforcement
information relating to terrorism or the security of our homeland. Such additional information
includes intelligence information.

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termined, however, that additional work was necessary to fully meet the requirements of Guideline 3.
Recommendations for Presidential Guideline 3 are coming close to completion in
a SBU Coordination Committee (SBU CC), chaired by the Program Manager, Information Sharing Environment (PM-ISE), with Homeland Security Council oversight.
The SBU CC began work in October 2006 with the participation of the Departments
of State, Defense, Transportation, Energy, Justice, and Homeland Security; the Federal Bureau of Investigation; the Office of the Director of National Intelligence; the
National Security Council; and the Office of Management and Budget. The committee actively consults with representatives from other departments and agencies,
the National Archives and Records Administration (NARA), the Information Security Oversight Office, the Controlled Access Program Coordination Office, the Information Sharing Council, the Global Justice Information Sharing Initiative, State,
local, and tribal partners, and several private sector groups.
The efforts of the SBU CC have focused on developing an SBU control framework
that is rational, standardized, and simplified, and as such, facilitates the creation
of an ISE that supports the individual missions of departments and agencies and
enhances our ability to share vital terrorism information among Federal, State,
local, tribal, and private sector entities, and foreign partners.
• RATIONALIZATION means establishing a framework based on a set of principles
and procedures that are easily understood by all users. This should help build confidence among users and the American public that information is being shared and
protected in a way that properly controls information that should be controlled, and
protects the privacy and other legal rights of Americans.
• RATIONALIZATION means structuring a framework in which all participants are
governed by the same definitions and procedures and that these are uniformly applied hy all users. The objective is to end uncertainty and confusion about how others using the framework will handle and disseminate SBU information. Standardization helps achieve the ISE mandated by Congress: "a trusted partnership between all levels of government."
• SIMPLIFICATION means operating a framework that has adequate, hut carefully
limited, numbers and types of markings, safeguards, and dissemination of SBU information. Such a simplified framework should facilitate Federal, State, and local
government sharing across jurisdictions; facilitate training users; and reduce mistakes and confusion.
V. The Controlled Unclassified Information
(CUI)
Framework
I must reiterate that interagency discussions of a proposed detailed framework
are still underway. Furthermore, no recommendation will become final unless and
until it is approved by the President. Of course, the ability to implement any reform
will depend upon the availability of appropriations. With respect to the present proposal, however there is general agreement that the SBU framework should include
the following 6 main elements:
/. CUI DESIGNATION: TO ensure a clean break with past practices, the Framework would change
the descriptor for this information to "Controlled Unclassified Information" (CUI)—thus eliminating the
old term "SBU." Participants would use only approved, published markings and controls, and these
would be mandatory for all CUI information. All other markings and controls would be phased out.
2. CUI MMARKINGS: The CUI Framework also contains mandatory policies and standards for
marking, safeguarding and dissemination of all CUI originated by the Federal government and shared
within the ISE, regardless of the medium used for its display, storage, or transmittal. This Framework
includes a very limited marking schema that addresses both safeguarding and dissemination. It also
provides reasonable safeguarding measures for all CUI, with the purpose of reducing the risk of unauthorized or inadvertent disclosure and dissemination levels that with the purpose of facilitating the
sharing of CUI for the execution of a lawful Federal mission or purpose.
3. CUI EXECUTIVE AGENT: A central management and oversight authority in the form of an
Executive Agent would govern the new CUI Framework and oversee its implementation.
4. CUI COUNCIL: Federal departments and agencies would advise the Executive Agent through
a CUI Council composed of senior agency officials. The Council will also create mechanisms to solicit
State, local, tribal, and private-sector partner input.
5. ROLE OF DEPARTMENTS AND AGENCIES: The head of each participating Federal department and agency will be responsible for the implementation of a functional CUI Framework within
the agency.
6. CUI TRANSITION STRATEGY a Transition Strategy for a phased transition from the current
SBU environment to the new CUI Framework is needed. During the transition, special attention would
be paid to initial governance, performance measurements, training, and outreach components.
On a final note, our work has recognized that the substantive information that
will be marked and disseminated in accordance with the proposed Framework is
also subject to a variety of other legal requirements and statutes. Among some of

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the most important statutes and legal authorities that apply to this information are
the Privacy Act of 1974, the Freedom of Information Act, the Federal Information
Security Management Act (FISMA) and various Executive Orders, including Executive Order 12333, which governs the Intelligence Community and its use of United
States Persons information. I would like to stress that this proposed Framework for
handling SRU has thoroughly considered these legal authorities and does not alter
the requirements and obligations imposed by these authorities. We will continue to
work with the ISE Privacy Guidelines Committee to ensure that the appropriate privacy issues fully meet any legal requirements to protect the civil liberties and privacy of Americans.
V/.
Conclusion
For information sharing to succeed, there must be trust—the trust of government
providers and users of information, or policymakers, and most importantly, of the
public. Each of these must trust that information is being shared appropriately, consistent with law, and in a manner protective of privacy civil liberties. Building trust
requires strong leadership, clear laws and guidelines, and advanced technologies to
ensure that information sharing serves important purposes and operates consistently
with American values.'^
The lack of a single, rationalized, standardized, and simplified SBU framework
does contribute to improper handling or over-classification. To instill confidence and
trust that sensitive information can be appropriately shared, handled, safeguarded,
and protected, we must adopt a standardized CUI Framework. This is especially
critical to our counterterrorism partners outside the intelligence community. Appropriately protecting law enforcement and homeland security related sources and
methods are just as valuable to our national security as protecting our intelligence
sources and methods.
The glohal nature of the threats our Nation faces today requires that: (1) our Nation's entire network of defenders he able to share information more rapidly and
confidently so that those who must act have the information they need, and (2) the
government can protect sensitive information and the information privacy rights
and other legal rights of Americans. The lack of a government-wide control framework for SBU information severely impedes these dual imperatives. The CUI
Framework is essential for the creation of an ISE which has been mandated by the
President and the Congress. Only then can we meet the dual objectives of enabling
our Nation's defenders to share information effectively, while also protecting the information that must he protected. A commitment to achieving standardization is essential—a vital need in the post-9/11 world.
Ms. H A R M A N . Thank you. Ambassador.
We now recognize Dr. Morris for a 5-minute summary.
STATEMENT
OF
CARTER
MORRIS,
Ph.D.,
DIRECTOR,
INFORMATION SHARING AND KNOWLEDGE MANAGEMENT,
OFFICE OF INTELLIGENCE AND ANALYSIS, DHS
M r . MORRIS. Thank you. Madam Chairman, Chairman Thompson, Ranking Member Reichert, other distinguished members of the
subcommittee.
I t really is a pleasure for me to be here this morning to t a l k
about the activities that we are doing i n DHS relative to information sharing and specifically to t a l k about the activities that we are
doing w i t h Ambassador McNamara, the F B I , our other federal
partners and our state and local partners i n developing a system
t h a t w i l l effectively allow us to share information but also to protect the information that needs to be protected.
When I go around and give my various talks that I give on information sharing, I like to quote from the Homeland Security Act
t h a t says one of the responsibilities of DHS is to share relevant
and appropriate homeland security information w i t h other federal
agencies and appropriate state and local personnel together w i t h
'^Mobilizing Information to Prevent Terrorism: Accelerating Development of a Trusted Information Sharing Environment, Third Report of the Marklc Foundation Task Force, July 2006

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assessments of thecredibility of such information. Andthe act defines state and localto include theprivate sector.
I t h i n k t h a t i s m y chargeinDHStomakethathappenand that
we take that very seriously that that isamajor part of the respon
sibilities ofthe Department ofHomeland Security.
The challenge that we face, and the one we are talking about
here today,is the issue that being able to share but to still protect
thelnformation thatneeds tobe protected, l^ow, I know fromthe
Congress wehearboththingscomingatus strongly, and we want
tomake sure that we do botheffectively.
Inthenationalsecurity community, wehavehadaclassification
system in place for a very longtime, ^ou can argue as to what is
in it and what is out of it,but let meassureyou,even i n t h a t community, wecontinuetolook at needtoknowandoriginator control
and third agency rules, all the things that people believe are an im
pediment to sharing, all of which are actively being debated at the
moment.
Outside of the national security community,as we have already
talked about, there are also reasons to protect information. Some
of this information is very vital to national security^privacy, law
enforcement case information, witness protections, security practices, vulnerabilities in our critical sectors and even lots of others.
Theseare verylegitimate reasons,and what w e h a v e t o d o i s f i g u r e o u t h o w t o share,howtoprotectandhowtobuild trust in the
system, as Ranking Member Reichert pointed out, so that people
will actually share the information. A n d t h a t i s the challenge that
wehave.
I^et me add a little bit of my own personal assessment here,
speaking for myself Asllookaroundtheinformation sharing business, information that is w h a t l w o u l d call important is rarely not
protected in some way. So in almost everything we talk about in
informationsharing, wehave to couplethatwithadiscussionof information protection. And so we can^t talk about one without the
other.
We believe that DHS has moved forward in the information sharing business. If you look at my written statement,youwillseethat
there are a number of references made, the things we have done.
I wouldliketopoint entrust two, andone of them is very relevant
today.
Cne is, in the classified domain, we have ledacommunity effort
with all of our partners tolook athow we better produce unclassifiedtearlinesfromclassifiedreportingandtonot
only produce
thattear line with information but produce an assessment, letme
say, of the credibility of that information. We believe we have a
new system that is currently being implemented, and some of my
intelligence community partners we have already seen a real
change in how that is being implemented.
The second area on the non classified side is all of the efforts
that wehaveputintoworking the controlled,unclassified informa
tion. As AmhassadorMcNamara said, DHS, working with the De
partment of justice,that really startedthat planning intothese activities, and we take this as a very importantthingto accomplish.
Someofthepeoplewho work for mearevery rabid about theissue
that we really do need to get this under control and do it very well.

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So that is the area that we really need to work on, this regime
for how we handle andcontrol information.
I^et me say that when we do this regime of looking at how this
controlled, unclassified information, we believe there are three
things that we particularly need to pay attention to. Cne is that
we put in place a governance structure to run this, and we put it
in quickly,effectively and fromthe beginning.
Thesecondthingis webelieveany systemisgoingtohavetobe
easytouse.lt is going to have to be convenient.
And the third thing isthatwebelievethatwearegoingtohave
to make sure that any system that we put in at the federal level
IS closely coordinated with the state and locals and how they ban
dleinformation. As weknow, thereislawenforcementinformation
at the federal level, there is law enforcement information at the
state level. They are controlled differently, and we need to bring
those systems together.
Let me finishup then, since m y l i g h t is on, and very quickly.
Cne, we arededicated toinformation sharing. We arededicated to
implementing a new system to run the controlled, unclassified information. We are very much on board with the program and the
proposalthat is currently being proposed.
H o w e v e r , I w i l l s a y , I d o not believe this is easy. It is not easy
at all, a n d l t h i n k that we are going to have to pay particular at
tention. Webelieve the phased approach t h a t i s i n theinitial proposal and how to get into this,we believe,is the right proposal.
A n d l a m here now to answer any questions that you might like
to ask.
^The statement of Mr. Morris follows^^
Pltl^PAI^I^DSTAT^^^t^TOPOl^.CAI^TI^IlMOI^I^IS
API^II^2^,200'^

Good morning. Chairwoman Uarman, Ranking Memher Reichert, and distinguished memhers of the subcommittee. My name is Carter Morris, a n d l a m the Oirector ofinformation Sharing and I^owledge Management forthe Office o f i n t e l ligence and Analysis atthe Oepartmentofllomeland Security (UHS). I t i s a pleasure to be withyou today to discuss the control ofgovernment information and the
actions OUS is taking to address and improve our ahility to share information without unnecessary restrictions and i n a m a n n e r that protects what needs to be protected.
The Homeland SecurityAct of 2002 authorizes OI^S to access, from any agency
of
theFederalgovernment,state,local,andtrihalgovernments,andtheprivatesector, all information relating to threats of terrorism against the United States and
other areas^ information relating to the vulnerabilities of theUnited States to terrorisms and information concerning the other responsibilities ofthe Uepartment as
assigned to and hy the Secretary.After analyzing, assessing, and integrating that
information with other information available to UHS, the Secretary must then ensure that this information is shared with state, local, and tribal governments^ and
theprivatesector, asappropriate. Concomitant with theseresponsihilitiesisthe obligation of the Secretary to identify and safeguard allhomeland security information
that is sensitive, but unclassified, and to ensure its security and confidentiality. In
formation sharing, for counterterrorism and related purposes, therefore, is key to
themissionofUHS.
Moreover, the Intelligence Reform and Terrorism Prevention Act of 200^ established the Program Manager of the Information Sharing Environment (PM-ISE) to
assist in the development of policies, procedures, guidelines, rules, and standards,
including those which apply to the designation, marking, and handhngof sensitive
but unclassified information, to fosterthe development and proper operation ofthe
ISE. OUS, incoordination withthe PM-ISE and otheragencieson the Information
Sharing Council, is actively participating in efforts to standardize procedures for

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sensitive hut unclassified information and create an effective Information Sharing
Environment. .
^^eC^o^^e^i^e

The challenge that we face in handling information is balancing two important
andcompetingfactors: ^^sharing thelnformation that needs to he shared" and ^^protecting information thatneeds tobeprotected."Our goalisto shareinformationunlessthereisa vahdandnecessaryreasontoprotectsuchinformation and thuslimit
or control the disseminationtoadiscretecommunityor other set ofusers.
The legitimate need to c^^.9.^^^)^ some information, for purposes of national security
and to protectoursources and methods and allow information collection operations
to he conducted without advanced notice to our adversaries, is well estahlished. As
sources and methods for acquiring information change, as well as our adversaries
capabilities, we continue to evaluate and adjust our classification criteria
Similarly,there are many indisputably legitimate reasons for protecting certain
unclassified information, which we refer to generically as Controlled Unclassified Information(CUI)—for example,privacy concerns relating topersonalinformation,the
danger of compromisingongoing law enforcement investigations or of endangering
witnesses, the need to protect private sector proprietary information and, most importantly, the need to protect information containing private sector vulnerabilities
and other secunty related information that could he exploited hy terrorists Unauthorizeddisclosureofthisinformationcouldcauseinjurytoasignificantnumherof
individual, business, or government interests.
ThroughOHS'swork with state and localfusioncenters,we have encounteredexamples of how the proliferation of internal policies for hanrlling unclassified hut sensitive information can create unintended harriers to information sharing. Existing
markings that are meantto identify necessary safeguards anddisseminationrestrictions on information often create as much confusion as help. For example, a state
fusioncenterreceivedareportthatcontainedactionablethreatinformationbearing
the marking ^^EES ", meaning Eaw Enforcement Sensitive. The fusion center personnel were unsure to what extent they could disseminate information with such
a marking. When they contacted theoriginatingFederal agency, they were unable
to speak with someone who knew the data and could explain the disclosure mles.
Thefusioncenterpersonnelerredon thesideofcautionanddidnotsharetheinformation—inthis casenotthebest solution.
Sensitive information (classified or unclassified) is only shared by people who
trustthesystems,policies,andprocednresthatgnidethat sharing. Any lackofconfidence regarding the operation and effectiveness o f a system reduces the wilhngnessofconsnmerstoshare thelnformation, therefore limitingany benefitsitmight
offer.
With that in mind, we continue working to transition from a historically risk
averseapproach tosensitiveinformationsharing, toone wheretherisksareconsidered and managed accordingly,but consistent witharesponsihility to provide infer
mationto our partners andcustomerswhoneedit.
InordertoimplementthemandatesofthelnformationSharingEnvironmentwe
must hothproducematerialat the lowest sensitivity level appropriate to allow it
to he easily shared with all who need it and ensure that processes for protecting
informationthat needs tobeprotected are defined and effective.
.O^.^i^^eoc^^^i^i^^r^cr^^oBi^^or^Bi^
UHS has heen a leader inestablishingnew approaches toinformation sharing—
including federal sharing at all classification levels^ sharing with our state, local,
tribal, and territorial partners^ and sharing with the private sector. In this sharing
it is critical to address both operational needs and the appropriate security in trans
ferring the information. I would like to talk about five specific UUS information
sharing initiatives where weareaddressing theneed tosharehut still providingan
appropriatelevelofcontrolof this information.
1. Eike other Federal departments and agencies, OUS shares information with
state, local, and tribal partners through state and local fusion centers. We are providingpeople and tools to these fusioncenters tocreate a wehofinterconnectedinformation nodes across the country that facilitates the sharing of information to
support multiple homeland security missions Working with theFederal government
and its partners to establish this sharing environment, OUS is ensnring that its
processes and systems not only achieve the sharing necessary hut also provide the
protection andcontrol ofthe information thatgives all partiesconfidence and tmst
that the information is appropriately used and that information which needs to he
protected—such as personally identifiable information—is appropriately controlled
and protected.

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2. OI^S, OO^andotherfederalentitiesarealsocreatingacollahorative,unclassified information sharing community,basedonestahlishingatrustedpartnership between the fusion centers and the federal government. This environment is requirements driven, and focused on providing information to support the mission o f t h e
intelligence analysts, allowing both information sharing and collaboration with the
stateandlocalintelligence communities to encouragethe development ofmatureintelligence fusion capabilities.Akey to the development of suchasharing environment IS providingasystem and processes that build confidence that information will
not only he shared hut also protected and controlled as needed,which is what we
are doing.
3. As part ofthe Presidential Guideline effort, OUS led an interagency working
groupthatdevelopedthe^^RecommendedGuidelinesforOisseminatingUnevaluated
Oomestic Threat Tearline Reporting at the Unclassified Eevel." Federal agencies
disseminateunclassifiedextractsfromunevaluatedclassifiedthreat reports tofacilitate sharingof threat information with those on the domestic front lines. Federal
dissemination ofraw threatreportingtoStateand local authorities—before the relevant Federal agencies can assess the specific threat—has, at times, led State and
Eocal authorities to misinterpret the credibility of the threat This effort provided
recommendations to support timely sharingof terrorist threat data with state and
local officials with increased clarity on the credibility of the information while main
taming the appropriate security for sources and methods Theserecommendations
arenowbeingimplementedintheintelligence community.
^.OUSisalsoleadingtheFederalCoordinating Group,to create coordinatedfederal intelligence products at the lowest appropriate levels ofclassification, for disseminationto state,local,trihalandprivate sector communities.The Group willcoordinate three categories of^Tederally coordinated terrorism information products"^
time-sensitive threat^incident reporting, situational awareness reporting, and strategic or foundationalassessments. For eachcategoryofproducts,the Group willensure originating agencies validate sourcing, ensure substantive completeness, and
tailor theanalysisfor state,local,tribal, andprivatesectoruse.TheGroup willcoordinate the downgrading and^or ^^tearhning" of classified materials where appropriatelevelsofclassificationorcontrolthatpermitwider state,local,tribal,andprivate sector usehutdonotjeopardize national security or othersensitivities. Again
the key is providing the necessary information while also providing clear understanding of the necessary protection and control of this information.
5. And finally, OUS is active in the interagency group working to minimize the
number ofdifferent CUI safeguardand disseminationrequirements. Weundertake
these efforts with an eye toward facilitating appropriate information sharing—and
significantprogresscanbemadebyeliminating internal safeguarding anddisseminationpoliciesthatareinconsistentthroughout Executive agencies andthat are occasionally overly protective of information.We are committed to developingasystem
for Controlled Unclassified Information that effectively facilitates sharing while at
the sametimeprotecting sensitive informationthat requires robust protection.
^^.^^eyl^^^e^e^e^^s

Therearethreeissues that wehelievearecritical tosuccessininstitutinganeffective CUI framework.
First, an effective and continuing CUI governance stmcture must be estahlished.
The lack o f a government-wide governance strncture is one ofthe primary reasons
that we have heen struggling to overcome confusion in this area. To advance the
government's information sharing demands with the attendant need to appropriately safeguardsensitiveinformationrequires apermanentgovernancestmcture
to overseetheadministration,training,andmanagementofastandardizedCUI system.
Second, OUSbelieves thattheimprovedCUI frameworkmustbeclear andeasy
to implement for all stakeholders. I t is important that we can justify and defend
all information that is so controlled. I f t h e framework is not readily understood it
will not housed. Furthermore, adoptionmust be swift.Estahlishingthegovernance
structure will aid thisprocesshy documenting therulesandstandardizing thepolicies, processes, and procedures for handling CUI across the federal government.
And third, we must ensure that all potential users of CUI have a clear understanding of the CUI frameworksothatwecanfacilitateamoreeffectiveandinteractive information exchange.We understand that they have their own constraints
surroundingsystems and sensitive data, so wemust work toidentify mechanisms
to integrate state and local systems with theFederal framework.
Addressing these elements will help provide transparency and build confidence to
increase sharing across communities—from intelligence to law enforcement, from
law enforcement tothe first responders,etc.

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^^^^^e^,^e^^r^ci^,^^^^^^^^^^r^i^o^^^o^
OverlOOCUIdesignators or markings have been identified,and each of these has
arisen to address a valid need to protect information. Most are codified as internal
policies and procedures, some of which have actually served to enhance information
sharing, i.e., clearly definedcontrol systemscreate a trustedenvironment that encourages information sharing. Eessoften, such designators or markings are the result of legislative and^or regulatory requirements to protect certain information in
a particular way. These practices worked well within a local environment, hut the
challenge is to leverage the successful practices and build a trusted environment
that bridges communities and domains. We must exercise caution, however, as we
go forward to consider and, where appropriate, revise operational practices in a
manner that can achieve hoth sharing and protection in an expanded community.
This caution IS especially true in cases where controls were created more to facih
fate,rather than limit,information sharing.Within OUS,there are three such information-protection regimes—^^Protected Critical Infrastructure Information (PCII),"
^^SensitiveSecurityInformation(SSI),"andthenewly estahlished ^^Chemical vulnerability Information (C^I)." Congress mandated these categories of information be
protectedand OUSpromulgatedregulationsimplementingtheseregimes. Each was
specifically created to foster private sector confidence to increase their willingness
toshare with the federalgovernment crucialhomelandsecurity-relatedinformation.
To date, PCII and SSI have been successful in this regard and have heen well received bythe private sector. Moreover,these designations are ready examples of
how robust control of information can actnally promote appropriate sharing.
,^^B^^^ry
Because we are changing estahlished cultures and procedures and moving forward,in coordination withthePM^ISE,withanewframeworkfor C U I , i t is important that we adequately address all elements of its implementation. Governance,
training, strategic communications, informationtechnology systems planning, and
thedevelopment of newstandards and proceduresare all importantto the effective
implementationof thesereforms. Phasedimplementationandcontinuousincorporation ofthe lessons learned in this process are basic tenets of change management.
I t i s important thatthe appropriategovernancemodel is adopted toensuresystematic implementationof theframeworkandfoster information sharing.
That said, OUS is fully committed t o t h i s new frameworkand is, moreover,
pleased that the framework fully recognizes the difficulties of implementation by
proposing,among other things,aplanning phase andphasedimplementation.Ooing
so willallowasmoother implementation and reduce the risk oflosing the confidence
that non-federalpartnershavenow found incurrentOUSprograms.
OUS looks forward tocontinue working with the PM-ISE, the Information Sharing Council, and each of our Federal partners, to address the challenges o f w h a t
many perceive to be the ^^over-classification" ofinformation. We believe we made
great strides in identifying the challenges. We also believe the paths forward are
paved for interagency success inimproving the sharing of information andproviding
an appropriate and streamlined system for controlling sensitive information. Never
theless, and notwithstanding the good progress we have made to date, we should
not underestimate the challenges that exist for implementing a new system for
standardizing and handlingControlled Unclassified Information across the Federal
government.
Thank you for your time Iwould be glad to answer any questions.

Ms. HARMAN. Thank you, Dr. Morris.
The chair now recognises Mr Murphy f o r a 5 m i n u t e summary
ofhis testimony.
STATEMENT OF^A^NEM.MLIRI^IT^, ASSISTANT DIRECTOR,
DIRECTORATE OF INTELLIGENCE, FEDERAL RLIREALI OF
IN^STIGATION
Mr. MuRPU^.Cood morning.Thankyou,MadamChairman Harman, Chairman Thompson, Ranking Member Reichert and mem
bers ofthe subcommittee.
I am pleased to be here today to demonstrate the commitment
of the I^ederal I3ureau of Investigation to strengthening our nation's ability to share terrorism information We are diligently

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working t o f u l f i l l t h e expectations that Congress set f o r t h i n t h e l n telligence Reform and Terrorism Rrevention Act of ^00^.
As the assistant director for intelligence to the ^131 and the ^I3I^s
senior executive for information sharing, I am at once responsible
for, accountableto,and haveavested interest inasuccessfulinformation sharing environment.
lamparticularlypleasedtobetestifyingtoday with Ambassador
Ted McNamara and Dr. Carter Morris. It has been my privilege
over the past many months to work with these professionals and
many othersasweseekto craft anoutcomethatmatchesboththe
letter and spirit of thetask before us.
I ^oin them today to discuss our collective efforts to develop a
standardised framework for marking, safeguarding and sharing
controlled, unclassified information. My nearly ^^years in the intelligence community have largely been served in an environment
w h e r e l d e a l t almost exclusively with classified national security
information.
While those regimes could be complicated and require great discipline and attention to detail, by comparison, they are far less
challenging than my e^periencehas been in working toorgani^e a
functionalCI^Iframework.This isnot because ofalackofcommitment, focus and creativity and trying to address that framework
butbecause of themyriadofissuesandintereststhat one encounters in the transitional worldof informationbetween whatiscontrolledandwhatisnot.
^rom an ^ R I perspective, getting it right is especially important
Cur information sharingenvironment spanstherangefromclassified national security informationtofullyopen source Wemust
havethe capacity tointerpose information from allof these regimes
and to do so inadynamic manner. We must havethe agility to
rapidly move information across security barriers and into environ
ments that make itmorereadilyavailableand therefore ofgreater
value to the broadest set of players.
And across all of our partners, wemusthave a framework that
allows for an immediate and common understanding of information^sprovidence and theimplications thatthatimparts. We must
m a k e t h e s h a r i n g o f C I ^ I abenefit, notaburden,especially on
state, local and tribal police departments who would be disproportionately affectedifaskedtosustain acomple^ ande^pensivecontrolframework. Wemust manageinformationin way that sustains
the confidence of people and organisations who share information
that puts them and their activities at risk.
Most important of all, we must respect the power of that information and the impact it holds forthe rights and civil liberties of
American people who have trusted us to be its stewards. That
means we must also never use control asaway to deny the public
access toinformationtowhichtheyareproperly entitled.
With the I^RI, achieving a streamlined CI^I framework is much
more than establishing a process^ it is about shaping mindsets so
that we can shift fully fromaneed to know t o a d u t y to provide
The CI^I framework, as proposed, createsopportunitiesandsolves
problemsfor me t h a t l c o u l d nothave solved onmy own. T h e ^ R I
is fully and completely committed to this process

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A l l o f u s whohavebeenpart ofthisprocess wish wecouldmove
more quickly in reachingapoint where we are today,butIbelieve
the investment of time, the level of effort and the openness and
commitment that has marked our dialogue has done justice to the
expectations of the American people.
Thank you for this hearing. I look forward to answering your
questions.
^The statement of Mr.Murphy follows'^
PH^PAHI^DSTAT^^^NTOPWAy^I^M.MUI^PHy
APilll.2^,2007

Good morning, Chairman Uarman, Ranking Member Reichert, and members of
the Subcommittee. I am pleased to he here today to demonstrate the commitment
of the Federal Bureau oflnvestigation (FRI) to strengthening our nation's ahility
to share terrorism information We are diligently working to fulfill the expectations
Congress setforthinthelntelligenceReform andTerrorism Prevention Act of 200^.
As the Assistant Oirectorforlntelligence and theFRI SeniorExecutiveforlnformation Sharing,lam at once responsible for,accountable to and haveavestedinterest
inasuccessfullnformation Sharing Environment.
l a m particularly pleased to he testifying today with Ambassador Ted McNamara,
the Information Sharing Environment Program Manager, and Or. Carter Morris,
Oirector for Information Sharing and I^owledge Management, Intelligence and
Analysis from theOepartmentofUomelandSecurity. It hasheenmy privilege over
the past many months to work with these professionals and others as we seek to
craft anoutcomethatmatcheshoththeletter and spirit of thetask heforeus.
I j o i n them today to discuss our collective efforts to developastandardized framework for marking, safegnarding, and sharing^^Controlled Unclassified Information'
(CUI), or as it is more commonly known, ^^sensitive but unclassified" information.
On Oecemher 1^,2005, the Presidentissued the^^Guidelines for thelnformation
SharingEnvironment"asmandatedhy thelntelligence Reform andTerrorism Prevention Act of 200^.TheseGuidehnes,amongother things, set inmotion a process
for standardizing the handling ofcontrolledunclassifiedinformation.
My nearly 2^ years in the intelligence community have largely been served in an
environmentwhereldealt almost exclusively withclassifiednationalsecurity information. While thoseregimescouldbecomplicated andrequiredgreat disciphneand
attention to detail, by comparison they are farlesschallengingthan my experience
has been in working to organize a functional CUI framework. This is not because
o f a l a c k of commitment, focus and creativity in trying to address that framework,
but because of the myriad of issues and interests that one encounters in the transi
tional world ofinformation hetweenwhat is controlled andwhat is not.
Itisessential that w e g e t i t r i g h t , because it isinformation i n t h i s environment
thatcanheofgreatestutility when weneedto shareacrossahroadrange of interests and constituencies. This framework provides a measure of protection for sensitive information to reassure those who might seek to hold such information in a
classified or overly restrictive regime, which would deny others access and cause us
to fail on our ^^duty to provide."
From an FBI perspective—getting it right is essential. The Information Sharing
Environment, which isthe hfebloodofour mission, spans the range from classified
national security information to fully open source. We must have the capacity to
interpose information from all of these regimes and do so inadynamic manner.We
must have the agihty to rapidly move information across security boundaries and
into environments that make it more readily availahle and therefore of greater
value to the broadest set of players. And across all ofour partners, we must have
a framework that allows for animmediateand common understandingof information's provenance and the implications that imparts. We must make the sharingof
CUIabenefit,notaburden^especially on State, Eocal and Tribal police depart
ments who would be disproportionately affected if asked to sustain a complex and
expensive control framework. We must manage information in a way that sustains
the confidence of people and organizations who share information that puts them
at risk. Most important of all, we must respect the power o f t h a t information and
theimpactitholdsfortherightsandcivillihertiesoftheAmericanpeople whohave
entrnsted us as itsstewards. That alsomeans thatwe must never use ^^control"as
away to deny the public access to information to which they are entitled.

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For the FBI, achieving a streamlined CUI framework is much more than establishing a process, it's about shaping mindsets so we can fully shift from ^^need to
know'to^^duty to provide."This shiftdoes not diminish our responsibihty to properly protect the privacy rights and civil liberties of all Americans It does not set
up a framework that puts at greater risk our sources and methods and it does not
compromise our capacity to conduct hoth an intelligence and law enforcement mission with full vigorandimpact. Rather, this frameworkseeks tolevel thelnformation sharing playing field throughacommon lexicon andashared understanding
of goals.
Unfortunately,the present set of policies and practices make it extremely difficult
for well meaning individuals to act responsibly,appropriately and completely in this
regime. There are well over 100 separate markings for CUI and there is no easy
way for the recipient of information hearing an unfamiliar marking to find out what
that marking means. Moreover, the same marking means different things in differentpartsoftheFederalGovernment.
The FRI,working in close coordinationwiththeOepartment of justice,have jointly drawn upon the experience and the wisdom ofstate and local law enforcement
personnel to help us understand better what kinds of CUI policies would be most
helpful to them as we strive to share information without compromisingeither privacy or operational effectiveness. The Criminal Intelligence Coordinating Council
(CICC) of the Global .lustice Information Sharing Initiative has played an active
roleinadvisinguson this matter, including theconveningonOecemher(^, 200(^ for
an all day meeting to discuss the practicability at the state and local level of various
proposed ^^safeguards" for CUI. I would like to acknowledge here the particularly
constructive role played hy the CICC Chair, Col. Bart Johnson o f t h e New york
StatePolice. Col^ohnsonisforthrightinexplainingwhatFederalpolicies wouldhe
most helpful in enabhngstate and local law enforcementto play their p a r t i n preventing terrorism, hut he is also sophisticated in his understanding of the many
other factors that must hetakeninto account.
In our view there are three aspects ofthe current draft framework that are particularly important:
1. Every marking that appears on any CUI document in the future must have
aclear and unambiguous meaning. There shouldhea website—accessihieover
the Internet to everybody—on which the approved markings are defined, and
nomarkingsshouldeverbeusedthatarenotdefinedonthiswehsite.This will
mean thatrecipientsofsharedinformation who w a n t t o d o t h e r i g h t thing will
easilyheabletofindoutwhatprotectivemeasuresareexpectedofthem
Ihelievethatthis change willbothincreasesharinganddecreasetherisksofsharing.
2. All CUI information must be marked with a standardized level of safegnarding. For most CUI this safeguarding will he no more than ordinary prudence and common sense—don't discuss CUIwhenyou can he overheard by people you don't intend to share it with, store it in an access controlled environment,as neededprotectitwith apassword.
3. All CUI information must be marked with appropriate dissemination guidance sothatrecipientscaneasily understand whatfurtherdisseminationis permitted.
All of us who have been part o f t h i s process wish we could have moved more
quickly in reaching the point where we are today, hutlbelieve the investment of
time,thelevelofeffort andthe openness and commitment that has markedour dialog has done justice to the expectations of the American people
Thank you for time, Hook forward to answering your questions.

Ms HARMAN Thankyou very much We are impressed that
t h e r e i s a m i n u t e a n d a h a l f left over.^ouwinthepri^e,Mr. Mur^Laughter.1
Well, I do apologi^eforrushingAmbassador McNamara. Hehas
important things to tell us. Rut unless we adhere to this format,
we don^t give adequate time to ask questions and to respect the
fact that we haveasecond panel of witnesses and also probably
thatwe aregoing tohave to recess for votes at some point during
this hearing.
Well,Ithankyou all for your testimony.

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And I will now recognise myself for 5 minutes of questions, and
I w i l l strictly adhere tothe time.
Dr. Morris, I was sending DHS a message through you about
frustration with the lack of progress on the ITACCr and the inclu
sion of state, local and tribal representatives in the preparing of
analytic products that is hopefully going to give those state, local
a n d t r i b a l a u t h o r i t i e s i n f o r m a t i o n t h e y n e e d i n a t i m e l y way to
know what tolook for andwhat to do.
^very terror plot is not going to be hatched inWashington,DC
where we might have adequate ^ R I and federal resources at the
ready.Idon^t believe that f o r a m i n u t e , a n d I k n o w no one onthis
paneldoes.
So I am sending this message that it is absolutely critical for
DHS to spend more time supporting the inclusion of numerous
state, local and tribal representatives in the ITACC and to stand
up the ITAC^ promptly Wedon^t understand any reason for delay
I am speaking for myself I have a feeling that the chairman is
going to speak forhimselfshortlyonthissameissue.
And the way to do it right is the way Ambassador McNamara,
working with you and state and local and tribal authorities, has
comeup withthisproposal. Sothereis apositivee^ampletolearn
from,andlhope that DHS,throughyou,is going tolearn.
Areyou going tolearn7
Mr. MORRIS. I t h i n k t h a t w e a r e allcommittedtobringing state
and locals into this activity lean tell you personally it has always
been my objective to do that. I have a meeting with my staff this
afternoon on how we do this.
I think thechallengehasbeen, the delay is that, in a sense, establishing the infrastructure for doing this kind of thing is more
challenging than we would all like tohave, butthereis no lack of
commitment, and we will move forward aggressively. And that is
what we are doing.
Ms. HARMAN. Well, I h o p e t h a t i s t r u e . Someof us thoughtthat
these folks could^ustbeincluded inthe NCTC itself, and then we
were told we needaseparate entity Now you are saying setting
upaseparateentityhasproblems. I t h i n k t h e p r i n c i p l e i s t h e critical piece, and so let^s not create problems with the second entity
if It isaproblem I^et^s^ust move forward on the principle
Mr MORRis Weagree No, absolutely
Ms.HARMAN.Sure.Ckay.
Ambassador McNamara,Idid rush you and you really didn^t get
achancetolayout how t h i s i s g o i n g t o h a p p e n . W e a l l g e t i t that
the White House basnet approved your proposal. We are hopeful
that it will be approved Surely,the other two witnesses were say
ing positive things about it, and we have been briefed, the members of this committee,by you on it,and we are positive.
Could you put on the record how this is going to happen, what
the governance structure will look like, and couldyou address the
issue of whether you need legislationtoaccomplishthis7
Cbviously,it makesnosensetohaveabrilliant proposalthat no
one follows, so I am sure you have already—I know you have already thought about this, andldon^t think we have testimony yet
on the record about how this will get adopted across the federal
government.

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5^
Mr. McNAMARA.^es, MadamChairman. I^irst of all, how^ Right
now the committee that I am chairing is putting in what I hope
is final form a series of recommendations that will be a report to
the president. Hehas asked for that report. I t i s known as guideline three, and we will be responding to that in, I expect, within
amonth or two, say,by the end of this quarter.
We will send forward for review by the interagency process^that
means deputies,principalsand then sent tothepresident—a series
of recommendations. I t is not a study, it is not an investigation.
What it is, isaseries of policy recommendations for changing the
current system and institutinganew regime called,CI^I,aslmentioned.
Second, you asked about the
Ms. HARMAN. The need for legislation.
Mr.McNAMARA.^or legislation.
Ms. HARMAN. To make certain there is compliance.
Mr. McNAMARA. Correct. T h e r e i s i n f a c t a g r o u p , asubgroupof
this committee that has been looking at the legislative history of
SRI^ and what might be necessary in the way oflegislation for the
implementation ofanew regime.
I t i s headed bythe Department of justice, and we expect, once
we have given them the final version ofthis, that they will come
back to us with recommendations, and we will include those rec
ommendations with the other recommendations. Rut those recommendations can^t be made until they look at the product that we
are telling them that we want implemented. And then they will
giveus their opinion as towhether or not legislation is needed.
Cn whether legislation is needed to get acceptance o f t h i s , the
answer, I t h i n k , is,no. Thepresidenthasasked for this, he wants
it,and he will review i t , I t h i n k , w i t h dispatch.
Ms.HARMAN.Ithank you for your answers.My time has expired.
Iwould ^ust alert you and the public listening i n t h a t we are considering legislation here on the issue of over-classification, which
Dr.Morris spoketobriefiy, as wellas this issue. Wethink i t i s ab
solutely critical that we have understandable and clear rules for
what information is protected and what information is shared. Ctherwise,wethink, we are not going tobe ableto get whereweneed
to get, which is to block Al ^aida plots coming our way in real
time.
I now recognise the ranking member of the subcommittee, the
gentleman fromWashington,for5minutes for questions.
Mr. RElCUERT.Thank you,Madam Chair.
^ u s t t o f o l l o w u p o n t h e chairwoman^slast question, governance
and legislation, I was takingnotes duringyour testimony and
didn^tfind it i n y o u r writtentestimony,butyoumentioned^^O
pieces oflegislation or ordinances and then another 150—
Mr. McNAMARA. Regulations.
Mr. REICHERT.—regulations.
Is the group in DC^, are part of their tasks to take a look at
those ^^0andl^50 to see
Mr McNAMARA^es, indeed In fact,they were the ones who
cameupwiththosenumbers.
MrRElcUERTCh,okay

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Mr.McNAMARA.They didaresearchpro^ecttofindout what legislationcreatedthe current SRI^system andwhat regulations were
adopted subsequently after the legislationwaspassedto implement
therequirementsofthelegislation.Thatis wherethatcomesfrom,
fromthat group.
Mr. REICUERT. Recause I can see that maybe some of what we
could do. Madam Chair, is pass a law eliminating some of these
rules and regulations that might be inhibiting you in accomplishing
that task.
Mr. McNAMARA. I^et me note that the vast majority, I believe,
not having looked at all of them, but I have been told that the
great majority of those simply require controls without going into
detail as towhat control mechanism should beput on specific kinds
of information. The details of what controls were put on were determined by the regulations. And, therefore, it is the opinion of this
groupatthispoint that manyofthoselegislativemandates require
^ustachange of the implementing regulations rather than go back
andchange the legislation.
Rut the definitive answer will only come when we have a final
set of recommendations that we can hand to the lawyers.
Mr REICUERT Croat Cood The subcommittee would be happy
to beworking withyou onthose changes.
I wantedto ask Dr. Morris,you mentionedasapart of theDHS
mandate that you have, in that statement that you read, it talks
about appropriate state and local personnel, which includes the private sector.
How do you define^^appropriate^^7 Who does that include7
Mr MORRIS That is an interesting question As part of my talks,
I have talked about that word exactly, because it was written in
there.Ithink that is something we have towork withthe state and
locals.Theprogramthatwecurrentlyhaveis certainly focusingon
the fusion centers that operate at the state level and at the local
ones that havethat.
We believe that inthe DHS program right now,that is where we
arefocusingour efforts andthen working withthepeople inthose
fusioncenters tounderstand where it needs to go beyond that.
Cne of the things t h a t l h a v e actually talked to some people who
worked for me for awhile is,howdo we define,inworking withthe
fusion centers, what are the other distribution methods that need
to be there7 Who else has to getthe information in order to act7
Mr. REICUERT. ^es.
Mr. MORRIS. I think that is the key thing. Rut right now our
focusis through thefusion centers and working w i t h t h e ^ R I and
the activities that they do inthe ^TTI^.
Mr. REICUERT. Cood. Well, I t h i n k weallknow fromoure^periencethatthereare alotofpeople who thinkthey are appropriate,
andthat is thetoughpartislettingsomepeoplethat they arenot.
Also, we talked a few days ago. Ambassador, about cultural
change as it relates to gaining trust and training, and it is also
something that Mr. Murphy mentioned.
I k i n d o f k n o w whereyouareat onthat. Ambassador,buti was
hoping maybe Mr. Murphy might comment since you mentioned it
in here, in your opening statement The cultural change, i n y o u r
opinion, is the need to know versus the need to share. So I think

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you nailed it when you said that How would you say we are going
toreachthatgoal7
Mr. MuRPUy.Iwishlcould take credit for that
What really broughtithomefor me was when I was supporting
amilitaryoperationaspartofmyresponsibilityatNSA,andafterwards we were doing a hot wash, and a Marine infantryman who
was working as part of the front end operational activity told me,
^^What makes you think that you have my perspective7 What
makes you think you can make^udgments about what I need to
knowanddon^tneedtoknow7^ouneedtounderstandmyenvironment better andwork within myenvironment.^^
That has resonated with me, particularly after ^^1^1^, and the decisions I had made that made good sense at the time but, frankly,
were parochial and limiting. I think this moves toward exposing
our customers to the information that we have and letting them
help us shape the message and shape the way it is delivered so the
peoplethat they represent is absolutelycritical.
Andso changing themindset, atthe end oftheday, is moreimportant thanany process thing that wedo,becauseifthemindsets
change, the processes will really take care of themselves.
Mr. REICUERT. I appreciate that answer very much, and we are
all three on the same page.
Ms. HARMAN. The gentleman^s time has expired. I appreciate
that answer very muchtoo.
Inowyield5minutestothechairman ofthefullcommittee,Mr.
Thompsonof Mississippi.
Mr.TuOMPSON.Thank you very much,Madam Chairman.
Cood answer, Mr. Murphy.
Dr Morris, i f we implement C I ^ I f r a m e w o r k , d o y o u t h i n k we
can get DHSto come along7
Mr. MORRIS. Well, I don^t think there is any problem with us
coming along. I think that the only issue that I believe that we
need to address in the end is going to be, how do we make sure
with any new system we come up with that we build the trust in
that system and the trust in the markings, the controls, the disseminations that are specified by that7
Cne ofthe bigchallenges for us in DHS has been working with
the private sector,particularly,inthe sharing of threat information
on our critical infrastructure. And what we are dedicated to do
under the new system is to make sure that whatever it says on the
top of the piece of paper along an electronic message that people
trustthatsystem. And w e t h i n k t h a t i s s o c r i t i c a l i n working with
theprivatesector.
Mr. TuOMPSON.Andsodoyou think wecanget our IC^, CRR,
TSAtobuyintoitalso7
Mr. MORRIS. Ididn^tsay it wasgoing tobe easy.^es,Ido. Actually, I do. I think thatwe have socialised the proposal within the
department We havenot gotten back ma^orpushbacks on it I t h i n k
people arestill wonderinghow they aregoing toimplementit,but
in principle, yes, we have gotten acceptance
Mr. TuOMPSON. Ambassador, what participation have we gotten
inthedevelopment of thisnew framework fromtheprivatesector7
Did you have any discussions with any private sector stakeholders
oranything7

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^5
Mr. McNAMARA. ^es, we have. We have been in consultation
withthem.Thereisacommittee that the Department of Homeland
Security hasformed with privatesector partners toe^amine many
issues related tohomeland security, not^ustthisissue oftheSRI^
andCI^I. And wehavegone over withtheminsomedetail various
aspects of this proposed and this recommendation for CI^I that
would affect the private sector inparticular.
Wehavehadtelephoneconferences, wehavehadmeetings with
them here in Washington. They are about, I think, within a few
days or a week to send in some final comments on the CI^I proposal as well as some other proposals thatthey have been looking
at t o , I t h i n k , t h e chair of that committee or that group,theassistant secretary for infrastructure protection at the Homeland Security Department, Rob Stephan
And my understanding, from phone conversations, et cetera, is
thatthey willbefavorably disposed. They believethattheir needs
will be met by this new proposal for CI^I.
Mr.TuOMPSON.lyield back,Madam Chair.
Ms. HARMAN. Thankyou, Mr. Chairman. We have been so efficient t h a t l w o u l d ask Sheriff Reichert if he has an additionalquestion,maybe one,and thenwewill move to our secondpanel.
I^nless you do,Mr.Chairman.
Mr.TuOMPSON.Ihave no further questions.
Mr REICUERT Iwould like to ^ust give D r M o r r i s a c h a n c e to
address the cultural change Inoticed you had your hand up and
you might haveacomment there.
Thank you,MadamChair.
Mr MORRIS Iwas^ust going to m a k e a c o m m e n t l w a s on an
other panel recently andwe were talking about information shar
ing, andthere wasarepresentativefrom privateindustry who
came tothe panel andbasically said that approaching information
sharing the way we are doing it now is going to fail, because it
doesnot address the issue of discovery. And that gets back to the
key pointthatyou were makingis that we have to put in place a
system that promotes discovery of information, find the people out
there who need it.
And then that is an area that we really need to start and continue I t struckanote with me, andlcertainly agreed with what
Iheard.
Mr. REICUERT. Madam Chair, i f I could^ust quickly follow up.
The public disclosure issue, as you mentioned discovery,is also one
t h a t l t h i n k the I^RImighthavetohandleanddeal with,isn^t that
true,allthree,nod your head7
Thankyou.
Ms. HARMAN. W e l l , I thankthewitnessesanddoagree withthe
ranking member that building trust is the key to making all of this
work. Without that, discovery won^t happen, changing cultures
won^thappen andgetting information, accurate and actionableinformation in real-time won^t happen.
This is, as far as I am concerned, the critical mission for this
subcommittee to drive home.
Ambassador McNamara, I hope when you leave this room you
will call the White House and ask them what minute they are

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going to approve your guidelines so we can get on with this Right7
^ood.Iknow the phone number.
^I^aughter.l
All right This panel is e^cused Thank you very much
Thank you very much, all.
Are we now set up7^es, we are. Counsel can take a seat ne^t
tome.
Iwelcome our secondpanel.
Cur witness, Mark ^adra, serves as assistant commissioner,
^loridaDepartment of LawRnforcement, and is a ^^year veteran
who has served in many leadership positions. Among them was
overseeing the development and implementation of various intelligence and information technology systems.
He served as special agent supervisor of the Domestic Security
Task Rorce prior to his appointment to chief of office of statewide
intelligencein ^00^ and subsequently tospecial agentinchargeof
domestic security and intelligence. And as we heard, he welcomed
people to Rlorida recently to have a conference on the critical
subject of fusioncenters.
Without objection, Mr. ^adra^s full statement will beinserted in
therecord.
Andlwouldnowask you to summarise in5minutes.
STATEMENT OF MARI^^ADRA,ASSISTA1^ COMMISSIONER,
FLORIDADEI^ARTMENT OF LAWENFORCEMENT
Mr^AORA Thank you, MadamChair anddistinguished mem
bers of the committee l a m pleased to speak to you today about
the importance of common federal information sharing protocols
andthe impact that theyhave onthe state,localandtribal governments.
Rrior to ^^11, law enforcement agencies at all levels had little
need to share sensitive information with non law enforcement
agencies. Wehadagenerallyacceptedpracticefor sharing with one
another,but becauselocalandstatelawenforcement had minor involvement in tbe counterterrorism arena, we had limited e^periencewithclassified information.I^ittleconsiderationwas also given
to sharing information outside oflaw enforcement, and particularly
with respect to the private sector,it was generally not done
The paradigm shifted after ^^11 when it became known that I ^
or moreofthehi^ackershad lived,hadtraveledandtrainedinthe
state of Rlorida while planning their atrocities. Cne month later,
Rloridae^periencedthefirstofseveralnationwidedeathsfromanthra^,whichonceagainterrori^edour nation.
In light of these grim realities, we recognised that local, state
and tribal resources, together with a w h o l e n e w s e t o f n o n l a w e n
forcement partners, including the private sector, represent the
frontline ofdefense against terror andour best hopefor prevention.
Cver the years, since ^^11, collectively, we have made great
strides in overcoming the cultural barriers to information sharing.
Despite many successes and anew cultural that encourages information sharing, barriers that impede the establishment of the desired national information sharing environment remain.
Rerhaps the single largest impediment is the lack of nationally
accepted common definitionsfor document markings and standard

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^7
policy proceduresforhandling, storinganddisseminating non-classified information.
Some states like Rlorida have open record laws, while other
states impose very restrictive requirements and afford broad protectionsfrom release. Rlorida^sreputationisthatofanopen record
state, and it is widely known.
R^emptions provided by Rlorida^s public record law are insuffi
cient toprotect againstpublic disclosure of alltypes of sensitiveinformation.Thefear that sensitiveinformation may not beprotected
under statelawhasachillingeffectonthefreeflowof information
from outofstate agencies andnon-governmental t o a n d f r o m Rlorida.
We also believe thatalackofastandard definition results in federalagenciesover classifying informationin a n e f f o r t t o p r o t e c t i t .
Developing and implementing a nationally accepted designation
willprovide Rlorida andother states withthe^ustificationthat
they needtoencouragemodificationofstatelaws sothat sensitive
informationcanbeprotected.
Rloridasupportstheimplementationof the controls, unclassified
information framework toreplacethe existing,sensitive but unclassifieddesignation.Implementationof thenew standard willinvolve
varyingdegrees of physical and legislative impacts. However, it is
my opinion that acceptance will be facilitated i f t h e guidelines are
straightforward and delivered in clear and concise language that
there is a single, nationally accepted, encrypted communication
standard and system, which can also be used by non law enforce
ment homeland security partners and that that be designated.
The fiscal impacts are mitigated through the use of grants for
the training and awareness programs and reprogramming of systems to allow this new framework.
Andthen implementationtimelinesneedtoconsidertheneedto
change policies and laws, purchase new equipment, do programmatic changes andtodothe training thatlreferenced.
Rederalagenciesarenow providing stateandlocalagencies with
significant amountsofthreatinformation. Muchof thelnformation
that is still needed, however, is classified at the national level in
orderto protect methods, means and collection and national security interests.lender mostcircumstances,however, wedo notneed
toknowtheidentity of thefederal sources, northemeans, nor the
methods ofintelligence collection, only whether the information is
deemed to be credible and specifically what actions that they want
state,local and tribal authorities totake.
Rloridabelieves the implementationof stateregional fusioncenters is the key to the establishment of the desired information
sharing environment These centers bring properly trained and
equipped intelligence professionals with appropriate clearances to
connect the pu^^le pieces and disseminate actionable intelligence.
Theproblem remains that,unfortunately,most of the operational
components atthe state and local level that may benefit from the
information and would otherwise be available to report on indicators and warnings we observed in the field will never have access
to this information because of the classification.
Tear line reports forwarded to fusion centers can help address
this particular concern. Sostate, local and tribal lawenforcement,

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in addition toother disciplinepartners andtheprivate sector, can
receiveinformationthat they can act upon.
Madam Chair and members ofthe subcommittee, thankyou for
the opportunity to appear and testify before you l e a n assure you
that the state of Rlorida is encouraged by your interest in facili
tatinganenhanced information sharing environment across the na
tion It is my hope that the testimony and the understanding of
Rlorida^s desire to be a strong participant in the fiow of critical,
sensitive information and intelligence nationally will be help on
your endeavor
And, ma^am, i f I may take 15 more seconds. I want to, from a
state perspective and probably on behalf of Colonel Johnson, to
thankyoufor therecognitionandthegratefulnessonbehalfof the
nation for the agency^s loss o f t h e i r trooper, the New ^ork state
trooper, t h e N e w ^ o r k state police and losthis family and agency.
And thank you for recognising the sacrifice of the state and local
andtribalmultidisciplinary partners that arealsopart of thisfight
onterror.
Thankyou.
^The statement of Mr. ^adrafollows^l
Pt^t^^PAI^I^DSTATI^^I^^T OP ASSISTANT COt^^ISSIO^t^HMAIII^^ADIIA

Good morning MadamChair and distinguished members of the Subcommittee.
My name is Mark ^ a d r a a n d l a m a 2 9 y e a r member of the Florida Oepartment
ofEawEnforcement(FOEE).FOEEisastatewidelawenforcement agency that offers a wide range of investigative, technical and informational services to criminal
justice agencies through its seven Regional Operations Centers, fifteen Field Offices,
and SIX full service Crime Eahoratories Our primary mission IS to promote public
safety and strengthen domestic security by providing services in partnership with
local, state and federal criminal justice agencies to prevent, investigate, and solve
crimes while protecting Florida's citizens and visitors. FOEE utilizes an investigative strategy that comprises five primary focus areas including violent Crime,Major
Orugs,Economic Crimes,Public Integrity andOomestic Security.
I was recently appointed as FOEE's Assistant Commissioner of Public Safety
Services however,prior tothatappointmentlservedas the Special Agent inCharge
of Oomestic Security and Intelligence and the state's Uomeland Security Advisor.
InthoserolesI have overseenthe development andimplementationofvariousintelligence andinformationsharingprogramsandsystems forFOEEandsuhsequently
forthe Stateof Florida. I have alsooverseen thedevelopment and implementation
o f t h e prevention component of Florida's Oomestic Security Strategy and Florida's
implementation of national information-sharing initiatives such as the Uomeland
Security Information Network (USIN) and Florida's fusion center. I have further
heen an active participant on the Global justice Information Sharing Initiative—
Glohal Intelligence Working Group (GIWG).Thegoalsof the GIWGincludeseamless sharing of intelligence information between systems, allowing for access to information throughout the law enforcement and public safety communities, creating
an intelligence sharing plan, determiningstandards for intelligencesharing, developing model policies, determining training needs, andcreatinganoutreacheffortto
inform lawenforcement of theresult of this effort. Overthelasttenmonthslhave
been afforded an opportunity to provide input to the GIWG regarding the develop
ment of the recommendedcommon protocols for sharingand protectingsensitiveinformation and intelligence among multiple agencies with a role and responsibility
inhomeland security.
I am pleased to speak to the Committee today about the importance of common
federal information sharing protocols and the impact they have on state, local and
tribalgovernments.
Priorto 9^11, law enforcement agencies at all levels had little need to share sensitive information with non law enforcement agencies. We had generally accepted
practices for sharinginformation withoneanotherbut, because local and state law
enforcement had minor involvement in the counterterrorism arena, we had limited
experiencewithfederally classified information. Eittle consideration was givento

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sharingsensitiveinformationoutside the lawenforcement community, and sharing
information with the private sector was generally not done
The paradigm shifted after 9^11 whenitbecame known that fourteen ormoreof
thehijackershad lived, worked, traveledandtrainedacrossFloridawhileplanning
the atrocities they would ultimately commit. In their daily activities they left many
clues that, if viewed together, may have predicted the plan and given authorities
an opportunity toavertthecatastrophicconsequences. I^nemonth after thehorror
of 9^11, Florida experienced the first of several nationwide deaths from Anthrax
which once again terrorized our nation. In light ofthese grim realities, we recognized that local, state and tribal resources—together with a whole new set of nonlaw enforcement partners including the private sector- represent the front line defense against terror and our best hope for terror prevention. Appropriately shared
information is the key weapon in moving fromthe role of first responder to that
of^ir^^^ret^^^i^^r.
Sharinginformation withagenciessuchashealth, fire,emergency managers, and
evennongovernmental entities witharole inthe fight against terror presented new
challenges, notjust theinherentculturalones,butthoserelatingtolaw,policy^procedure, technology and logistics. Over the years since 9^11, collectively, we have
made great strides in overcoming the cultural harriers to sharing information. In
Florida, through our Oomestic Security Strategy and governancestructure, we routinely work with and share information across all entities that havearole in protecting the safety and security of our citizens
Oespite these successes and a new culture that encourages information sharing,
barriers thatimpede theestahlishmentofthe desired national Information Sharing
Environment (ISE)remain.
^oB^^^^^^^i^^^^^^^^^i^^^^^^^^^^^^^^^^^o^^r^o^^^^^^

Perhaps the single largest impedimentto aneffectivenational ISE is t h e l a c k o f
nationally acceptedcommondefinitionsfor document markings and standardpolicy^
procedure for handling, storing, and disseminating non-classified information. Sensitive but unclassified information, which is routinely received from federal and
other state agencies,is neededby state,local,tribal andprivate sector partners that
haveaduty and responsibility to utilize it to provide for our safety and security.
Consistency in definition and protocol IS paramount to both fully sharing useful and
actionableinformation,andprotecting informationthat shouldnot he shared.
Some states, like Floridahaveopenrecord laws that mandatereveahnginformationcompiledbygovernmentalagenciesunlessaspecific^^chapterand verse"exemptionorconfidentiality provision applies.Otherstatesimpose very restrictive disseminationrequirements andaffordbroadprotectionsfromreleasetothose without
a need to know. Florida's reputation as an open records state is widely known.
While Floridalaw exempts certain informationfrompublic disclosure,the most likely exemptionsapplicahletothetypeof information that lamdiscussingarelimited
tocriminalintelligence^investigativeinformationandinformationthatpertainstoa
facility's physical security system plan or threat assessment. Exemptions provided
hy Florida's Public Records Eaw are insufficient to protect against public disclosure
ofah types of sensitive information neededby Florida's domestic security partners.
For example, thereisnospecific exemption in Florida's puhlicrecordslaw for information provided to Florida byanonFlorida agency unless it is intelligence or inves
tigative information—both of which have fairly narrow definitions under Florida
law. The fear that sensitive information may not he protected under state law has
a ^^chilfingeffect" on the free fiow of important information from out-of-state agencies and non governmental entities to and from Florida. We also believe that the
lack ofastandard designation results in federalagencies over-classifying their informationin an efforttoprotectit. Information and intelligencesharing partnersneed
to know, with certainty, that the information they share will be appropriately pro
tected. A t t h e same time, we understand there mustbe appropriate limits on what
is removed from public scrutiny and review, and a balance achieved between properly informing the public and ensuring the safety and security of our state and na
tion.
Oeveloping and implementinganationally accepted designation, with clear and
appropriate handling and dissemination standards for sensitive information, will
provide Florida and other states with the justification they need to encourage modification of state laws so that sensitive information can be protected in compliance
with an accepted national standard.
Fortunately,there appears tobeaworkablesolutionto the concernslhaveidentified. Florida supports the implementation of the Controlled Unclassified Information
(CUI) framework to replace the existingSensitive Rut Unclassifed (SBU) designation. The SRU designation contains numerousconfusingdesignations used to mark

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unclassified information. The recommended CUI framework streamhnes existing
designations and provides handling requirements that facilitate wide distribution
among law enforcement, homeland security, other government sectors and the private sector. We strongly believe that the information sharing environment mandated by Presidential Guideline3cannot be fully achieved without the implementa
tion o f a model such as the CUI framework. In the ahsence of common protocols,
existing classification schemes will continue to be over utilized and^or improperly
utilized, resulting in the inability of persons who receive information to adequately
distribute It to those w i t h a d u t y and responsibility to take action to protect our
citizens.
We helieve that the recommendations made by the Sensitive But Unclassified
WorkingGroup refiect workable solutions that could be accepted and replicated by
most states.Asastaterepresentativelhave been afforded an opportunity to review
andcomment on these recommendations during their formulation. I have alsohad
the pleasure of personally meeting with AmhassadorThomas E. McNamara, Office
of the Program Manager for the Information Sharing Environment and espousing
Florida's viewswith respectto this andother information sharing topics.

^^^^^^^^^^^^^^^

Intheahsence of federal guidanceand standards,many states,includingFlorida,
have already expended resources in building systems and programs to fill the information needs of their consumers. Implementation ofthe new standard will involve
varying degrees of fiscal and legislative impacts, however it is my opinion that acceptance will be facilitated i f
1. Guidelines are straight-forward anddeliveredinaclear,conciselanguage^
2. Asingle, nationally accepted, encrypted communications system and federal
information sharing encryption standard that can he used by non law enforcement homeland security partners is designated,
3. Fiscal impacts aremitigated through grants fortrainingand awareness programs,as well as for new equipment and system reprogramming^ and
^. Implementation timehne considers the potential need for state, local, and
tribal governments to.
a. Change policy and^or rules to comply with new information dissemination
requirements^
b. Purchase new equipment and^orsystemprogramming changes^ and
c. Trainappropriatepersonnelinmarkings, handling, storage anddissemination requirements.
^^^^^^^^^^^e^^^y^^^^^^^^^e^o^^^^^

Inresponsetopost9^11criticismregardingfailuretoshareinformation vertically
and horizontally across the spectrum ofhomeland security partners, federal agencies are now providing state and local agencies with significant amounts of threat
information. Much ofthe information that is still needed, however, is classified at
the national level in orderto protect sources, methods and meansofcollection and
national security interests. State andlocallaw enforcement fully understand and
appreciatetheneed toprotect certaininformationandrestrictdisseminationto only
those w i t h a n e e d o r r i g h t t o k n o w . Under most circumstances, however, wedonot
need to know the identity of federal sources or means and methods ofintelligence
collection—only whether or not the information has heen deemed credible and specifically what actionsthat the state,localandtrihalentitiesshouldtake.
Florida believes the implementation ofstate and regional fusion centersiskey to
the establishment o f t h e desired Information Sharing Environment. These centers
bring properly trained and equipped intelligence professionals with appropriate
clearances to connect the pieces of the puzzle and disseminate actionable intelligence. The problem remains that once the classified material is fused with the
non classified information from which analysis is performed, the information takes
ontherestrictions with the classifiedinformation whichsignificantlynarrowsto
whom and howit canbeshared. Unfortunately, most of the operational components
at the state and local level that may he benefit from the information, and would
he otherwise availahletoreportontheindicatorsandwarningsbeing observed within the field, will not ever have access to this information. Tear line reports forwarded tofusion centers can help address this particular concern so that state,local
andtrihallawenforcement in additional to other disciphnepartners andtheprivate
sector receive informationthat they can act upon.
In conclusion, I would like tocompliment our federal partners for recognizing the
value ofstate, local and tribal representative'se^pertiseandallowing input on such
acritical initiative prior to its implementation. This has not always heen the case,
hutis a testamenttothepositivechangein theinformationsharingcultureandestablished and improved partnerships. I have been honored to be a memher o f t h e

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Global Intelligence Working Group and would like to acknowledge the work done
hythoseprofessionalsunder the guidance of their Chairman,NewYork StatePolice
Oeputy Superintendent, Rart Johnson.
Eastly, Madam Chair andMembersoftheSuhCommittee, thankyou for theopportunity tohave
appearedandtestifiedheforeyoutoday.Icanassureyouthe
Stateof Florida is encouraged hy yourinterestin facilitatingan enhanced information sharing environment across the nation. It is my hope that this testimony and
theunderstanding of Florida'sdesiretoheastrong participant inthefiowofcritical
sensitive information and intelligence nationally will be helpful in your endeavor.

Ms. HARMAN. I thank the witness for your testimony and now
yield myself5minutes for questions.
Let me s a y , f i r s t , M r ^ a d r a , t h a t l t h i n k we need to bottle you
I am not sure whatthat process could involve, but I would like to
abottleofyoutositonCharlieAllen^sdeskandlwouldlikeabottle of you to sit on the desk of the appropriate people at the CIA
who have a great role to play in our present classification system.
And I definitely want a big bottle of you to be sitting on Rran
Townsend^sdeskintheWhiteHouse,as wemoveforward.Recause
it is absolutely critical, as you said, that you have timely informa
tion And we have both classification and pseudo classification sys
tems that are making that more difficult than it should be.
No oneis arguing about theneedtoprotect sensitive sources and
methods. Iservedfor^years inthe Houselntelligence Committee,
and I think I get it, but I havenot found a defender, and I would
disagree withsuch a p e r s o n i f l f o u n d o n e , w h o s a y s t h a t o u r
present systemworkswell.lt doesnot,it is broken,and this is hearing is about how to fi^ at least a portion of it, and this sub
committee will focus on trying to fi^ as much of it as we can get
our arms around.
I w a n t to ask you aboutaspecific situation Idon^t think anyone
inthecountry andmostpeoplearoundthe worldmissedthetragic
events at Virginia Tech last week where
students and faculty
losttheirlives. Initially, i t w a s n o t k n o w n whotheshooter was. I t
turned out to be,we think,amentally ill student acting alone.
Rut I want to ask you, from your perspective, what were you
thinkingabout whenthatinformation came over the wire7Rore^ample, were you thinking, is this a terrorist plot, is this the first
phase, is this going to roll out in some of my universities in Rlor
ida7
And what information were you able to get in real time as you
hadthose thoughts,and fromwhom7
Mr. ^AORA. Madam Chair, I can assure you that the state of
Rlorida, there is not an incident that happens within our state,
whether it is an accident of hazardous materials onaroadway or
anything across the country, our mindset initially is first to determine whether or not ithas apotential ne^us to terrorism. I think
wealllearnedalessonafter^^II.
Certainly, when thishappened our immediate thought, theRlorida Department of Law Rnforcement has protective operations detail for our governor and also for our legislature and cabinet. And
we, ofcourse, when we first heard the news, were concerned, did
we have a ne^us to anything within our state and our particular
universitiesandcollegesthatweneededtoalsobe concerned with.
Rortunately, because of the fusion center concept now,we have
anembedded Department of HomelandSecurityanalystwithinour

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statefusion center.^ery immediately two thingshappened. We
reached outimmediately, through our DH analyst, tothe national
operations center,andwe were advised very quickly that there was
no known ne^us to terrorism. Cf course, it was still unfolding at
that time,but there wereno initial indicators.
The second thing that happened, which I think is proof positive
about the fusion center concept is that the Virginia fusion center
beganputting out informationthat was made availabletothe other
statefusioncenters. Andthatwase^tremely criticalandbeneficial
tous.
I know the lastthing that we would wantto do as a state is to
call and begin impacting the local law enforcement agencies that
wererespondingtothattragicincident. They hadtheir hands full.
Tohaveastate, athousandormoremilesaway,callingand want
ing to check to know the status of everything, it would be understandable that that couldbe an impediment tothem.
Rut because of the fusion center there and to be able to reach
out to them directly and with them providing updates to us, and
I know the last I saw was update number si^, I know at least si^
updates wereprovidedfromthatfusioncentertoallfusioncenters
across thenation.
Ms. HARMAN. Well, that is a g o o d n e w s r e p o r t . T h a t i s n o t a r e
port you could have givenayear or two ago,amlright7
Mr. ^AORA.^es,ma^am, that is correct.
Ms. HARMAN. Rusion centers, which have been the subject of
other hearings, are beginning to work. DHS does have personnel
embedded in I ^ of them.^ou are obviously one of I^.Weare trying
to help move more DHS people there, a n d l a m ^ust assuming that
theproducts you saw alsorefiected, for example, RRI input, since
they are typicallyapart of the fusion center.Is that correct7
Mr^AORA^es,ma^am, that was my understanding, that there
wasacooperative effort. And let me add,too,that weare awaiting
ourRRI analyst.We will have an RRI analyst also embedded in our
state fusion center The member has ^ust not arrived yet, but we
are expecting that soon.
Ms. HARMAN. Well, I hope that does happen. I mean, the goal,
again, is to get theright people and rightinformation to the right
places in real time. Doyou agree7
Mr. ^AORA. Absolutely.
Ms HARMAN I t h a n k you very much, M r ^ a d r a , and now yield
5minutes to the ranking member for questions.
Mr.RElCUERT.Cood morning.
Thank you,MadamChair.
Rirst of all, you mentioned open record laws. I am from Washington state, was the sheriff there for a while. In
years oflaw
enforcement,oneof thefrustratingthingsin working w i t h t h e f e d
eral government, and you touched on, was sharing that information
and as they shared it withthe local sheriffsoffice in Seattle,it became subject to the public disclosure laws of the state ofWashington.
C a n y o u t a l k a l i t t l e b i t about that,how that discussionoccurred
within the framework of your involvement in discussing where one
had the future of sharing information7

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Mr.^AORA.^es,sir.Inthe state of Rlorida,wehave some exemptions from public disclosure, and from our perspective there are
usually three that we point to. Cne is active criminal investigation,
the other is active criminal intelligence, and then the other deals
withsecurity plans, whichincludephotographs, fioor plans and
things like that, of critical infrastructure.
Whilethosearegood, thereis ahole, sotospeak, with sensitive
information, because now, after ^^11, we have a lot of different
partners that weneedto share with—health,fire,emergency managers. Soalot of theinformationthatwegetisnot active criminal
investigation, it is not active criminal intelligence, and it is not a
fioor plan,it is notaphotograph.
Ror example, if we have mass prophylaxis from dealing with
health issues and where that is stored and h o w i t is transported,
as we have hazardous materials come through our state, we want
to alert ourRlorida highway patrol, wewant to alert our motor carrier compliance,ourDepartment of Agriculture,their weigh and inspection stations,ofthe fiow ofthis.
lender our currentpublicrecordse^emptions, thatinformation is
not criminal investigative, it is not criminal intelligence, and it is
not a security plan. We attempt to protect it under those type
things,andwehavebeenpretty much successful.
Ruttohaveanationalframeworkthat we—andlhavetalkedto
both our house and our senate in our state, and i f we had a national framework that we could point to, to say,thisisanationally
accepted, controlled, unclassifiedinformation that we could amend
our state laws to provide those protections so that when we need
to share with other states, they have confidence that the state of
Rlorida, despitebeinganopenrecords law state, that wecan pro
tect the information they share with us
Mr.REICUERT.^ery good.Thelast part of myquestionwas going
to address the last part ofyour answer.
I was also wondering whatyour opinion might be in this whole
areaofgovernance, becauselocal lawenforcement hasdifficulty at
the statelevel,the sheriffslevelandthepolice chief Whois going
to be in control ofthe information7 The governance issue is a big
one, asyouknow I t i s alwaysahuge issue
Howdid thatdiscussion play out inyour discussion of SRI^and
all theplayers around the table7That governance issue is always
touchy.
Mr. ^AORA.The state of Rlorida isaparticipant inthe Clobal In
telligence Working Croup under the global justice initiative, and so
the state of Rlorida has been able to provide input. I personally
have been able to review the recommendations and provide input
to those.
I also served, as homeland security advisor until most recently,
and we have seven regional domestic security task forces that all
have intelligence operations and components. So we have had discussions with those, and everyone agrees that this is a difficult,
andwe needanational standard.
We have awaited, of course, understanding the formal adoption
ofthesebefore we have done a lot of pushingoutto our state, because one thing that happens,whileyouwant to have the input
from your local state, one thing that has happened to us that en-

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couraged our federal partners, it really needs to be done and it
needs to be done right, so when we take it and share it, we can
share it once, and it doesnot move, and it doesnot change.
Cne of the most detrimental things that has happened to us in
thepastistherollout of new programs, andlhaveheardthemdescribed as,well, wewere building this airplane onthe fiy.
Tobehonest withyou,sir,Idon^t want tofiy on an airplanethat
isbeingbuiltwhileIamonit,aswearefiying.
And so what happens is you push these things out to the states,
the locals. The federal government begins to lose credibility be
causeit continues to change and morph.
So, truthfully, from the staters perspective, what we have done
is wewouldliketoknowthattherearerecommendations, wehave
providedinput, andoncewebelievethattheyareclosetobeing finalised, to be able then to really push that through our state
framework.
Mr.RElCUERT.C^reat.Thankyousomuch.
lyield.Thank you,MadamChair.
Ms.HARMAN.Thank you,Mr. Reichert
Wehave votes coming up shortly,butldohave another question
or two, and so I hope you will^oin me in a second round of questions untilwe can ad^ournthe hearing for voting.
Rirstofall,itisMr.^^^adra^^7Isthatcorrect7
Mr. ^AORA.^es,ma^am, but anything is fine.
^Laughter.1
Ms HARMAN Well, you are very fie^ible, but this is my second
goof of the morning here, besides recognising another witness out
of order. I apologise to you, and we will now produce ^adra pills,
whichwe are going toputineveryfederaloffice.
I surely agree with you, in answer toyour last question, that it
needs to be done right. R u t i t alsoneeds to be done now. Doyou
agree withthat7
Mr.^AORA.^es,ma^am.
Ms.HARMAN.Ckay.
Mr. ^AORA. I f not, the state and locals, like we have done on
many things inthepast,wehave implemented our own methodolo
gies and that continues to lead to the confusion and interoperability between states. Soyou are correct. It needs toberight,and
it needs tobe done as soon as possible.
Ms. HARMAN. So we have the ambassador calling the White
Housetoday,and we will haveapproval later today.That wouldbe
nice, obviously. Then we need aforcingmechanism across thefederal government.
My question to you is, would some funds for traininghelp push
this concept into the states7 I know there are some other issues
that you were ^ust discussing with Mr Reichert, but would training
moneybeofusetoyou7
Mr^AORA Madam Chair, absolutely, and the recommendation
for Rlorida that we have made, particularly through the Department ofHomeland Security, deals with the federal grant funding
programs, a n d l k n o w that you are highly aware of those different
ones.
We would ask, because currently we fund our fusion center ef
forts throughtheLawRnforcement Terrorism RreventionRrogram,

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we wouldask, because thefusioncenters aresocritical t o t h i s e n
tire effort, that there be thoughts, ^ust as there are designated port
grants or transit grants, that we designate fusion center grants.
And I believe thatthemoney in afusioncenter grantis so tiedto
what we are talking about that we would use those funds in conjunction with the fusion centers to deal with how we would train
howtouseCI^I.
Ms. HARMAN. Well, we are working right now on several proposals to push more money into fusion centers to help with local
training,local involvement, alsotogetDHSpeopleinevery fusion
center. I was confused about your answer before, probably my
fault, aboutthe^irginiaTechinformation.^our fusioncenterdoes
or does not presently haveaDHSperson in it7
Mr.^AORA Itdoes
Ms. HARMAN. It does.
Mr. ^AORA. Ithas since^anuary.
Ms HARMAN And that fusioncenter was what youcontacted,
and it got in touch with the Virginia fusion centers is that what
happened7
Mr. ^AORA. Cur state Rlorida fusion center made contact with
the^irginia fusion center Cur Department ofHomeland Security
analyst made direct contact to the national operations center,
which i s t h e Department ofHomeland Security We went both
ways.
Ms. HARMAN. Sowehadareal live example of information sharing, horizontally at the local level and vertically with the federal
intelligence community^ is that correct7
Mr. ^AORA. ^es, ma^am. That is not the first time. I think we
continually seeprogress and movement. And,again,the creationof
state and the regional fusion centers and then having our federal
components embedded inthose,Ithink,arethebest things that we
could be doing.
Ms. HARMAN. Well, wetotally agree. Wethink thatis oneof the
best things. We think another of the best things is to change the
way we protect information so that we only protect what we need
to protect and we share the rest of it, both on the classified side
andthepseudo-classifiedornon-classifiedside. A n d t h a t i s w h y we
arehavingthishearing. A n d l t h i n k y o u are onthe samepage^am
Iright7
Mr.^AORA.Absolutely.Icouldn^t agree more.
Ms HARMAN I t h a n k y o u again f o r y o u r v e r y valuable testi
mony, Mr. ^adra, and now yield for additional questions to the
ranking member.
Mr. REICUERT. I^ust have two or three followups. Thank you,
MadamChair.
How much of your budget is dedicated to homeland security ef
forts7Would you know the answer to that7
Mr. ^AORA. How much of our state budget or federal grant7
Mr. REICUERT. ^ouragency^s budget.
Mr. ^AORA. Cur agency budget7Not a tremendous amount, and
the reason why isbecause our statelegislature, and I can forward
it to you later, i f you would like, sir, our state statute that des
ignates our domestic security efforts in Rlorida indicate that we are
to ma^imi^e federal funding.

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I believe that Rlorida has placed approximately ^^5 million of
staterevenueintothis. Rlorida, fortunately, becauseofthecritical
infrastructure landscape thatwe have, we have been treated very
well fromthe national level. Imean, we would always want more,
but Rlorida hasbeenarecipient and last year was thethird largest
amount of federal funding iromtheDepartment of Homeland Security
Mr REICUERT What is your agency^s training budget7 What per
centage of your budget goes to training7
Mr. ^AORA. Sir, I don^t know the answer to that. I don^t have
that with me today l e a n certainly provide that a s a f o l l o w u p to
you.Idonotethatwealsoma^imi^eourfederalhomelandsecurity
funds to dealwithour training.
Mr. REICUERT. And to further follow up on the chair^s question
regarding funding, would it be helpful to you to have additional
funds that would pay for backfill as you send people to training7
Mr. ^AORA. ^es, sir. To be honest with you, I am sure it would
be greatly appreciated. I think I can say on behalf of the state of
Rlorida, particularly from the law enforcement component, is that
thisisourmission I t is clear to us This is ^ust as important as
responding to any burglary, rape, robbery, and we would do it i f
you didn^t give us backfill.
I w i l l say t h i s f r o m t h e f i r e s i d e ' Thefire, we doprovidebackfill
and overtime for them. Recause whenyou take aha^ardous material truck and you send them all to training, that is loss So if you
take one member and they don^t have enough to have that team,
so they have tobackfill that. Lawenforcement, we are alittle bit
different.
So I guess the best way to answer that, we would be happy to
receive it and it would beabenefit, b u t l w i l l assure you the state
of Rloridaisgoingtodo what isnecessary,even i f wedidnot have
it.
Mr. REICUERT. Well, one of the things we talked about—thisis
the last question I have—iscreatinganenvironmentof trust. And
I^ust have to smile, still being probably new here in my second
term, beginningmythirdyear a t t h e federal acronyms, so^ust
today SRI^,CI^I,ISR,RCI, ICC So when you talk about building
trust and user friendly, the local cops really would like language
they can understand, don^t you agree7
Mr. ^AORA. Sir, interesting that you bring that up, as C^overnor
Crist,our newlyelected governor,his very first executive order was
aplainlanguageinitiative inthe state of Rlorida.
Mr.RElCUERT.^es.Ithink it isagreat idea.
Mr^AORA We concur wholeheartedly. It needs to be very plain,
itneedstobesimple. And no disrespectto our lawenforcement officers who are obviously very confident, but it makes sense that
whatever we do has to be simple so that we can assure it is done
properly and that it will be utilised. I f i t is too complicated, it is
not going tobeutili^edandwewon^t effect what we are after.
Mr. REICUERT. Well, certainly appreciate your time, and thank
you for your service toyour community.
Andlyieldback.
MsHARMAN Ithank the gentleman for yielding back
The time for questions has expired.

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I would just note to Mr. Zadra that I often say the dirtiest fourletter word m government is not an acronym; it is spelled T-U-RP, and it has a lot to do with the subject we are discussing today.
The hearing is adjourned.
[Whereupon, at 11:22 a.m., the subcommittee was adjourned.]

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MAKING DHS THE GOLD STANDARD FOR
DESIGNATING CLASSIFIED AND SENSITIVE
HOMELAND SECURITY INFORMATION
PART I I I
Thursday, June 28, 2007
U.S. HOUSE OF REPRESENTATIVES,
COMMITTEE ON HOMELAND SECURITY,
SUHCOMMITTEE ON INTELLIGENCE, INFORMATION SHARING,
AND TERRORISM RISK ASSESSMENT,

Washington, DC.
The subcommittee met, pursuant to call, at 10:08 a.m., in Room
311, Cannon House Office Building, Hon. Jane Harman [chairwoman of the subcommittee] presiding.
Present: Representatives Harman, Langevin, Carney, Reichert
and Dent.
Ms. HARMAN. The hearing will come to order.
I apologize to my colleagues and our witnesses for needing to be
in two places at the same time, but the Energy and Commerce
Committee is marking up the energy bill, and that includes things
like plug-in hybrids, which are a huge issue for California. So I
will, as soon as my BlackBerry goes off, have to go out; and Mr.
Langevin will chair the hearing for a period.
But I would like to welcome our witnesses and welcome our
panel and take a deep breath and launch. Good morning.
According to last Sunday's Washington Post, the Vice President
is inventing his own classified and unclassified designations to
keep his work products secret. My personal favorite—and I have
never heard of this designation in my 8 years on the House Intelligence Committee—is, quote, treated as Top Secret SCI, unquote.
According to the Post, experts in and out of Government said
Cheney's office appears to have invented that designation, which
alludes to Sensitive Compartmented Information, the most closely
guarded category of Government secrets. By adding the words
"treated as", the Post noted, the Vice President seems to be seeking
to protect his unclassified work as though its disclosure would
cause exceptionally grave damage to national security.
The problem is that the Vice President and some other law enforcement and security agencies believe that they should decide
which information they can keep secret, regardless of the law, rules
or what the needs are of our local law enforcement community.
In my view, this is bad policy. But, not only that, it poses huge
obstacles to our need to connect the dots in time to protect, to prevent or to disrupt the next terrorist attack against us.
(79)

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l a s k the question,what hope is there for the controlledunclassified information regime beingdeveloped by the program manager
o f t h e Information SharingRnvironment a t t h e DNI's office if we
haveagenciesandpartsofourWhiteHousethat aregoing to continue to make their own decisions on what information they keep
secret7
Cneofourwitnesses today is aplayer, aparticipant, in thecontroversy involving theVice President's office Rill Leonard of the
Information Security Cversight Cffice testified before this subcommitteethispastMarch,andwewelcomehimback. A t t h e p r i o r
hearing, he and other witnesses helpedpaint a picture ofthe con
sequences of abusing the classification regime and its outrageous
costs tobothtaxpayers and our informationsharing efforts.
I am aware, Mr. Leonard, that the Justice Department is currently trying to resolve the issuebetweenyour office and the Vice
President, and I anticipate thatyou may not be able to comment
on the issue, but surely I personally admire your courage, and I
think you are ontheright side.
Mr. Leonard appears today to testify about whathebelieves the
Department of Homeland Security should do to reduce the problems fromoverclassificationandpseudoclassification.
And our other witnesses, each of our other witnesses, brings
enormousexpertiseto this. Severalofyouhavebeen witnessesbefore us before. All of you are people whom I talk to on a regular
basis about what this committee should be doing to get the problem
right.
Let me just stateafew other tentative conclusions that we have
reached after exploring this issue for some time.
Number one, the only way to insure that relevant homeland security information is sharedbetween the Rederal Government and
its State,local,tribal and private sector partners is to createaclassification and pseudoclassification system t h a t i s enforceable, understandable and applicable to everyone
Number two,almost^years after ^^11, weshouldbetreating far
less information as classified.
Number three,fixing this should beatoppriority.
Number four, classified markings are not—repeat not—to be
usedtoprotect political turf or hide embarrassing facts frompublic
view. They should only be used to properly hide—if thatis agood
word—or protect sources and methods from public viewbecause i f
those sources and methods are disclosed, people die and informationdriesup.
Indeed, a recurrent themethroughoutthe ^^11 Commission's report was the need to address the problems of over—and pseudo—
classification to clear up a major stumbling block to dealing with
terrorist threats.
Whilelhopethat Congress will fashionaGovernmentwide solution, this committee, the Homeland Security Department and this
subcommittee is a good place to start. We can try to figure out
what Homeland Security should be doing, and we can hope that
what we propose for the Homeland Security Department can becomethebestpractices Government-wide.
AsImentioned,we have phenomenally good witnesses before us
today; andllook forwardtoworkingwiththem,continuing towork

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81
with them, and to working on a bipartisan basis with Sheriff
Reichert getting this right.
I would like to extend a warm welcome to everyone and would
now yield to the ranking member for his opening comments
Mr. REICUERT. Thankyou, MadamChair; and welcometoallof
you
I h a v e a c o u p l e of pages of prepared comments, b u t l a m j u s t
going toreadoneparagraph,andthenIam going to comment from
more ofalocal perspective.
This subcommittee is to focus on the Department ofHomeland
Security and actions that they can do better in terms of overclassi
fication, pseudo-classification. However, in crafting legislation, we
must not lose sight of t h e f a c t t h a t overclassification is a Governmentwide problem, and that requires Government-wide solutions.
I t h i n k really that kind of boils thewhole thing down.
I j u s t want to again comment fromalocalperspective I t h a s
only beenalittleover2yearssinceIcame from the Sheriffs Cffice
in Seattle. Ihad33yearsexperiencethere, some working withthe
Rederal officials, the RBI, Secret Service and DRA and ATR and
you name it, from a detective's perspective in sharinginformation
andworkingaspartners in investigating crimes.
Cne of those crimes,aslmentioned in earlier hearings,isawell
known case called the Green River Murder Investigations, where
we had nearly 50 to ^0 Rederal agents assigned tothe task force.
I operated there as the lead investigator from the middle 1^80s
into theearly l^^Os. Wehaddifficulty obtaininginformationfrom
the Rederal agencies and agents that worked there with us, right
alongside, side by side
My partner, RRI agent Special Agent Bob Agnew, shared information with mebecausewebuiltarelationship. Wehad afriend
ship where we trusted each other. But the agency itself classified
thedocumentsthat were associated withour case atalevel where
I had no access to the documentsin our owncase. Sethis is back
inthel^80s
So when we finally come to make an arrest years later, 1^ years
later, w h i l e l then served as thefirstelectedsheriffin^Oyearsin
Seattle,Ihad the opportunity once again to oversee for2years the
investigation of this serial murder case that solved 50 murders.
Part of that investigation then required that we go back to the Rederal agency,the RBI,and acquire the documents that theyhadproducedduringthatinvestigationfor discovery sothatwecouldpursue charges against the suspect. They refused to give them to us.
Thatis ridiculous, andittouchesonthelevel thatthe Chair mentioned atalocal level.
Really, it boils down to, look, cops on the street,the local cops,
the local sheriffs deputies, the State Patrol, you know, the State
agencies, and all the other Rederal agencies, the guys and gals on
the street do not care one iota about the Vice President and the
politics of this stuff. WTiat they want is a system in place where
we canshareinformation,wherewecanbuildthat trust,that sort
of friendship that Bob Agnew andDave Reichert had back in the
mid 1^80s, where we could share the information vital to investigatingalocal crime.

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Now,in today's world, after September l l t h , v i t a l to the security
ofthisNation, because, as wehaveallsaidover and over again in
this subcommittee and in our full committee, the involvement of
local law enforcement is critical in the protection of our country.
And if we don't share information with our local agencies and we
can't trust each other and build trust between local agencies and
Rederal agencies, this country's safety is at great risk.
S o l k n o w a l l o f y o u are workinghardtoovercomethisproblem,
but I wanted to share with you just one of my experiences in my
33year career working with one Rederal agency.Ihave other sto
ries I could share with you that would illustrate this point, but I
won't take the time this morning.
Solappreciate you being here this morning and look forward to
your testimony
Madam Chair, lyield.
Ms.HARMAN. Ithank the gentlemanfor his comments and would
note that other members of the subcommittee are reminded that,
under committee rules, opening statements may be submitted for
therecord.
Ms.HARMAN. As mentioned,Iwelcome our four witnesses.
Cur first witness, Mr. William Leonard, is the Director of the Information Security CversightCffice.The ISCC reports tothe Presi
dent and isresponsiblefor policy andoversight of theRederalGov
ernment wide security classification system and the National Industrial Security Program
Mr. Leonard has testified several times before Congress about
theneed tobreakdowntheclassificationimpedimentstoinformation sharing Some of them were just graphically mentioned by Mr.
Reichert.
Cur second witness, and a very long-standingfriend of mine, is
Scott Armstrong, whois theRxecutive Director ofthe Information
Trust, anonprofitgroup that works towardopeningaccess toGovernment information.Hehasbeen inducted intotheRreedomof Information Act, RCIA, Hall ofRame^that is impressive;Ihope you
are wearing the medal—and was awarded the James Madison
Awardby the American LibraryAssociation.
Mr. Armstronghasbeen a Washington Post reporter, amember
of the board of several nonprofits, is the founder of the National Security Archive ofthe George WashingtonUniversity and co-author
ofamajor book on the Supreme Court.
Cur third witness,SuzanneSpaulding,is an authorityonna
tional security issues, including terrorism,homeland security,crit
ical infrastructure protection, cybersecurity, intelligence, law enforcement, crisis management andissues relatingto the threats of
chemical, biological, nuclear and radiological weapons. She just
knows everything.
She started working on national security issues on Capitol Hill
over 20 years ago. More recently, she was the Rxecutive Director
of two congressionally mandated commissions, the National Commission on Terrorism, on which I was amember and where I met
her,andtheCommissiontoAssesstheCrganizationoftheRederal
Government to Combat Proliferation ofWeapons of Mass Destruction, which waschaired by former CIADirector John Deutch; and

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83
she also was the chief of staff to the then minority on the House
Intelligence Committeewhenlwas the ranking member.
Welcome back, Suzanne.
Ms. SPAULOING. Thank you.
Ms. HARMAN. Cur fourth witness, Mark Agrast, is aSenior Rellow atthe Center for American Progress, wherehe focuses on the
Constitution, separation of powers, terrorism, civil liberties, and
the rule oflaw.
Prior tojoining the Center forAmerican Progress, Mr Agrast
was counsel and legislative director to Congressman Delahunt of
Massachusetts.Heserves onthe 37memberRoardof Governors at
the American BarAssociation,pastChair of ABA'ssectiononlndividual Rights and Responsibilities, and a former colleague of mine
in law practice Very, very knowledgeable about this subject
Without objection, all the witnesses' full statements will be inserted inthe record; andlwould now urgeyoueachto summarize,
in5minutes orless,your principalpoints.
We do h a v e a t i m e r ^ o u will see it It will start blinking at you.
B u t i t willbemuchmoreproductiveifwecanhave aconversation
here, notjusthavingyou read from a prepared text. And all of us
are veryeager tolearn fromyoutoday.
^TAT^M^NT
J.
^l^^^AM
L^^NA^O,
O^^^^T^^,
^NI^^^MATl^N ^ ^ ^ ^ ^ I T ^ ^ V I ^ I ^ ^ l ^ ^ T
NATl^NA^
A^^^^V^^AN^^^^^^OAOMIN^^T^TI^N
Ms.HARMAN.Please start, Mr.Leonard.
Mr. LEONARD.Thank you,MadamChair,Mr. Reichert, members
ofthesubcommittee. I w a n t t o t h a n k y o u for holding thishearing
today and giving me the opportunity to appear.
Cbviously, the ability and the authority to classify national secu
rity information isacriticaltool at the disposalof the Government
and its leaders to protect ourNation and its citizens.
As with any tool,the classification system is subject to misuse
and misapplication. Wheninformationisimproperlydeclassifiedor
not classified in the first place, although clearly warranted, our
citizens,our democratic institutions,ourhomelandsecurity,and
our interactions with foreign nations canbesubjecttopotential
harm.
Conversely,too much classification, the failure to declassify information aslong as itnolonger satisfies thestandardsfor continued
classification, or inappropriate reclassification unnecessarily ob
structseffectiveinformation sharingandimpedesaninformedcitizenry,the hallmark of our democratic form of Government.
Inthis time ofconstantandunique challenges to our national security, i t i s t h e d u t y of allof us engagedinpublicserviceto do everything possibletoenhancethe effectiveness of thistool.Tobe effective, the classification tool is a process that must be wielded
with precision.
Last year,Iwrotetoallagency heads and madeanumber of recommendations for their consideration. Collectively, these recommendations help preserve the integrity of the classification sys
tem, while at the same time reduce inefiiciencies and cost They in
cludedthings such as emphasizing to all authorized holders ofclassified information the affirmative responsibility they have under

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8^
the orderto challenge the classification status ofinformation they
believe is improperly classified.
lalso suggested requiring thereviewofagencyprocedurestoensure that they facilitate classification challenges. In this regard,
agencies were encouragedto consider the appointment of impartial
officials ombudsmen, i f you will, whose sole purpose is to seek out
inappropriateinstancesofclassification andtoencourageothersto
adhere to their individual responsibility to challenge classification
asappropriate.
Also, I suggested ensuring that quality classification guides of
adequate specificityandclarityareabsolutely necessary inorder to
insure accurate and consistent derivative classificationdecisions.
I n t h i s letter, I also suggested ensuring the routine samplingof
recently classifiedproductsto determine thepropriety ofclassification and the application of proper and full markings. Agency inspector generals,for example,could be involved inthis process.
Consideration should also be given to reporting the results of
thesereviewstoagency personnelas wellastoofficialsdesignated
whowouldberesponsibleto track trends and assess the overallef
fectiveness of theagencies'effortsandmake adjustments asappropriate.
Rinally, I suggested that agencies need to ensure that information is declassified as soon a s i t n o longer meets the standards for
continued classification.
Again, thankyou for inviting mehere today. Madam Chair; and
Iwouldbehappy to answer anyquestions youorthesubcommittee
may have.
Ms.HARMAN.Thank you,Mr.Leonard.
[The statement of Mr.Leonard follows:]
Ms. HARMAN. I j u s t wanttoannouncetoall t h a t l h a v e toleave
t o r e t u r n t o t h i s m a r k u p I w i l l try to get back Mr Carney will
assumetheChair,becauseMr Langevin has to depart shortly But
we will hear testimony from all four ofyou, and then we will ask
questions of all four of you.
Again,Iwould like to thank you all, b u t l w o u l d like to say to
you particularly, Mr. Leonard,that you are i n a t o u g h fight, and
your courage and integrity are very impressive Thank youvery
much.
Mr. LEONARD. Thank you.
Ms HARMAI^ Without objection,Iwill now turn the Chair over
toMr.Carney.
Mr CARNEY [Presiding]Thank you, Mr.Leonard, for your testimony.
Mr ARMSTRONG Thankyou
Mr. ARMSTRONG. I was intending to wish our chairwoman, Mrs.
Harman, a happy birthday, as today is her birthday, but we can
singtoherwhen she returns.
Mr.CARNEY.Not me.Iwant to get reelected.
^TAT^M^NT^^^^^TTA^M^T^^N^,^^^NO^^,
^N^^^MATl^NT^^^T
Mr. ARMSTRONG. I appreciate the opportunity to address these
issuesofclassification andpseudoclassification attheDepartment
of Homeland Security.

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85
My views are my own, b u t l s h o u l d n o t e l h a v e been working
closely within the Aspen Institute to sustaina^year dialogue be
tween senior journalists, editors and publishers and high level Gov
ernmentofficialsfromvariousnationalsecurity agencies, including
senior members ofCongress and their staffs. We met from time to
time with the Director of Central Intelligence and the Attorney
General and ranking membersof the various intelligence bureaucracies. Theproductofthosemeetingslthinkis an agreementthat
the goal is to haveawellinformed citizenry that is assured of its
safety, without sacrificing itsliberty.
The lessons of ^^11 were focused on sharing more information
within Government agencies, laterally across Government agency
barriers, and among Rederal, State, and local governments and
withcriticalprivateindustries,community first respondersand the
public at large.
The challengefor the Department of HomelandSecnrity isnot so
much how to withhold information or secrets from the public but
how to share information so as to promote our security. Ror once,
the Government's first mission is notto silenceleaks buttoeffectively share officialinformation outside of itsusualconstraints.
Thedisciplineofcontrollinginformationneedstogive way tothe
creative task of selectively selecting previously withheld information and pushing it rapidly and articulately out to the extraordinarily varied organizations that protect us, from local law enforcement, first responders, medical and emergency response
teams, community leaders, utility industry managers with nuclear
facilities, or farms of chemical and electrical storage tanks, mass
transportation,andon and on.
Homeland security r e q u i r e s t h e v i g i l a n c e o f t h e m a n y , rather
than the control of the few. Awareness, prevention, protection, response and recovery are not hierarchical tasks delegated or die
tated fromthe top.
The National Intelligence Reform Act of 200^ allowed—in that
Congress took a major step to address these needs. It authorized
broad central power for the new Director ofNational Intelligence
andurgedtheDNItocreateatearlinereport system,inwhichintelligence gathering by agencies isprepared sothat information relating tointelligencesourcesandmethodsis easily severable within multi-layered products to allow wide sharing, while still pro
tecting truly sensitivesources andmethodsfromunauthorizeddisclosure.
Thebenefit of theprotectionto our communitieslies onthe other
side of that tearline. By concentratingon classification guidelines
for protecting well defined sources and methods and making re
fined decisions to protect that which really, truly require protection, moreofthe remaining information willbe available for sharing withthe public.
^our attention today followsaseries of extraordinary efforts by
this administration to control information with such severity and
vengeance that it has blinded itsconstitutional partnershere and
in the judiciary. Most startling, this administration has used the
information controls toinstitute policy and decisionmakinglayers
which have deemed even senior departmental officials from work-

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8^
ing—have doomed them to working in the sort of isolated stovepipes that are repeated again and again inthe lessons of ^^11.
The practices that I have outlined in my prepared statement of
DHS thathavefrustratedthis effort canbe read there. But I emphasizethat it is DHS that is theplaceto start. By adopting legislative features, you can directly address your interests. Give DHS
near term objectives and extra resources to achieve results Hold
the Secretary of Homeland Security accountable for the mandates
already contained in the law which dispensed such sweeping
power.
The DNI has the authority to mandate DHS as a test bed and
to direct other departments and agencies to cooperate in changing
the range of intelligence information controls. Hold the DNI accountablefor regularly measuringachievements within the organizations under his control Provide built in monitoring by inde
pendent and experienced observers, such as Rill Leonard and the
Information Security Cversight Cffice and Public Interest Declassification Board.
The tearline system defined by Congress^years ago is the right
standard It is the place to start It needs major attention to stand
ardize guidance materials which can be applied with precision.
Training and performance evaluation is necessary throughout
But, most of all, demand and reward lessinformationcontrolin
order to maximize communication. Translate the classification
guides that Mr. Leonard referred to into action directives about
what and how Congress—what andhowshould be communicated,
rather than simply whether information might be classified anddecontrolled. Hold Government officials and employees accountable
for their decisions. When mistakes cometolight, reeducate andretrainandemphasizetheimportance of the supervisors inthat process.
Lastly, encourage the Cffice of the DNI and the full range of
agencies under the DNI authority. This includes, not limited to
DHS,totake carefulcognizance of thewellestablishedtraditionof
background briefings in which national security officials and the
news mediacommunicate informally in a manner meantto inform
the public,including Congress and others inthe executive,andprovideadegree of confidence that secrecy is not being used to erode
or impede civil liberties and free expression.
We would all do well to recall that our freedom has been protected and our homes have been secure because we as a people
haveunderstoodhowtobestshareinformationandhowtobestrespond together to mutual threats. We look forward to cooperating
withyou i n t h a t effort.
Thankyou.
Mr.CARNEY.Thankyou,Mr.Armstrong.
[The statement ofMr. Armstrong follows:]
Pl^^PAI^^DSTAT^I^5:^TOPSGOTTAlI^STI^OI^G
^1^^^^^,^007
Chairwoman Uarman, Ranl^ing Member Reichert, and members of the Committee, thanlc you for thi^ opportunity to addre^^ the i^^ue^ ofclassilication and
p^eudo-cla^^ilication at the Department of Uomeland Security.

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87
My views today are my own, but I should note that I have heen working closely
with the Aspen Institute to sustain a six-year Dialogue between senior journalists,
editors and publishers and high level US government officials from various national
security and intelligence agencies, including senior members of congress and their
staffs. The Dialogue on Journalism and National Security has attempted lo address
recurring concerns about the handling of sensitive national security information by
government officials and representatives of the news media. The discussions have
included the Attorney General, the Oirector of the Central Intelligence Agency and
ranking officials from the National Security Council, the Department ofDefense, the
National Security Agency, the FRI as well as the CIA and the Department of Justice.
The Dialogue grew out of mutual concerns that legislation passed by both Houses
of Congress in 2000 was, in effect, America's first Official Secrets Act. Although vetoed by President Clinton, the bill was reintroduced in 2001. In the wake of 9/11,
high ranking officials of the national security community and the leadership of national press organizations recognized that the disclosure of sensitive national security information was a reason for concern. We found considerable agreement that
legislation which inhibited virtually all exchanges of sensitive information—even responsible exchanges designed to increase public appreciation of national security
issues—was not likely to make America more secure.
The goal, we seemed to agree, has heen to have a well-informed citizenry that is
assured of its safety without sacrificing its liberty. The lessons of 9/11 focused on
sharing more information within government agencies, laterally across federal agency harriers and among federal, state, local governments and with critical private industries, community first responders and the public at large.
The Homeland Security Information Sharing Act, first passed by the House in
2002 and incorporated into the Homeland Secunty Act of 2004,' mandated the creation of a unique category of information known as "sensitive homeland security information." This category of SUSI information—as we have transliterated the acronym—was designed to permit the sharing of certain critical information with state
and local authorities without having to classify it and require its recipients to hold
clearances thus creating new harriers to communication. At the same time, SUSI
designates information deemed necessary to withhold briefiy from the general pubhc
while appropriate measures are taken to protect our communities.
The challenge for the Department of Homeland Security is not so much how to
WITHHOLD secrets from the public and its local governmental representatives. The
challenge is how .to SHARE information so as to promote our security. For once government's first mission is not to silence "leaks," hut to effectively share official information outside its usual restraints.
The discipline of controlling information needs to give way to the creative task
of selecting previously withheld information and pushing it rapidly and articulately
out to the extraordinarily varied organizations that protect us: local law enforcement; first responders; medical and emergency response teams; community leaders;
utility industry managers with nuclear facilities or farms of chemical and energy
storage tanks; mass transportation operators, and so forth.
Homeland security requires the vigilance of the many rather than the control of
the few. Awareness, prevention, protection, response and recovery are not hierarchical tasks dictated from the top. Secrecy must yield to communication. This is
no trivial task. The mission of information sharing is difficult enough within the
cumbersome and slumbering giant newly merged from dozens of agencies and populated more than 180,000 employees. Rut that job is only the beginning since DHS
IS the focal point for leveraging some 87,000 different governmental jurisdictions at
the federal, state, and local level which have homeland security responsibilities involving tens of millions of Americans whose responsihilities cannot he
choreographed from afar, hut must he inspired by shared information.
In the National Intelligence Reform Act of 2004, the Congress took another major
step to address this phenomenon. It authorized broad centralized power for the new
Oirector of National Intelligence and urged the new ONI to create a tear-line report
system hy which intelligence gathered by an agency is prepared so that the information relating to intelligence sources and methods is easily severable within multiple
layered products to allow wide sharing while protecting truly sensitive sources and
methods from unauthorized disclosure.
The benefit to the protection of our communities lies on the other side of that
"tear-line" system. Ey concentrating on the classification guidelines for protecting
well-defined sources and methods and making refined decisions to protect that
which truly requires protection, more of the remaining information should he avail1 PL. 107-296

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ahle for sharing within the intelligence community as well as within the diversified
and distributed elements ofthe colossus ofthose charged with Uomeland Security
responsibilities. The public henefits from these designations within internally pub
lished intelligence requiring protection because It makes majority of fact and analysis available for expedited release—notjust to homeland security organizations—
but also to the media and the public.
Your attention today followsaseries of extraordinary efforts hy this administra
tion tocontrol information withsuch severity and vengeance that it hashlindedits
constitutional partners here and in the judiciary Most startling, this administration
has used these information controls to institute policy and decision making layers
whichhavedoomedevenseniordepartmentalofficialstoworkinthesort of isolated
stovepipes described in the repetitious texts of 9/llfailures.
This is no longer a question of issues of over-classification hut one of wholesale
compartmentalized control and institutionalized intimidation through the use of
draconianNon-Oisclosure Agreements. Itappearsdesignedmore toinhihit andconstipate internal communicationsin the federal government than to protectthe national security.
Not surprisingly, the Department of Homeland Security wasted no time in replicating themovetoNon-OisclosureAgreements^NDA's^. Rut it combined it with an
effort to side-step the congressional mandate to foster information sharing. Rather
than educate the rest of the government on how to effectively communicate informa
tion, DHS dispersed new information control authority across the full spectrum of
executive agencies. The uncoordinated proliferation of Sensitive Rut Unclassified
designations^f t h e s o r t y o u address today^already includessomeremarkahle
missteps.
In one instance, the Department of Homeland Security draftedadraconian NonDisclosure Agreement ^NOA^ designed to impose restrictions on tens of thousand
federal employees and hundreds of thousands ofstate and local first responders.
This NOA^ for unclassified information more severe than the NOA's coveringSensitive Compartmented Information and even more sensitive information under the
government'scontrol.
This NOArequiredofficials,employees,consultants andsubcontractors toprotect
such "sensitive hut unclassified information," which is defined as "an over-arching
term that covers any information, . which the loss of, misuse of, or unanthorized
access to or modification of could adversely affect the national interest or the con
duct of Federal programs, or the privacy |of^ individuals . . . but which has nof;
heen specifically authorized under criteria estahlished by an Executive Order or an
Act of Congress to hekept secret inthe interest ofnationaldefense or foreignpohcy.
Thisincludesinformationcategorizedhy OUS or other government agenciesas;For
Olficial Use Only ^FOUO^; Official Use Only ^OUO^; Sensitive Homeland Security
Information^SUSU;LimitedOfficial Use^LOU^; LawEnforcement Sensitive ^LES^;
Safegnarding Information ^SGU; Unclassified Controlled Nuclear Information
^UCNU; and any o^ber identifier n^edbyot^borGo^ornment^agencie^to categorize information as sensitivehutunclassified."
This overbroad—but legally binding requirement—was implemented as a condition of access to certain unclassified information. Such an NDA represented a vast
increase in government secrecy I t left control in the hands of an undefined and virtually unlimited number of supervisors. Those who signed the agreement were
bound perpetually until it was explicitly removed. The NDA had no statutory authority and thus no defined criteria, rules, limitations or effective oversight. Although it did not provide an explicit rationale for withholding "Sensitive Rut Unclassified"informationunder theFreedomof Information A c t , i t surely providedan
incentive to err in favor of using other exemptions to deny release.
Although this NOAwas withdrawn hyOHS in January 2005, i t w a s used last
year at the Department to silence private Wackenhut guards who were speaking to
the press about security breakdowns at the Department's Nebraska Avenue headquarters. Other instances of SRU constraints hy government agencies, contractors
and utilities appear tobe usedmostoftento discourage andprevent the public from
participatingin its government. Provisions similar to the OHSNOAhave since appeared in other employee andcontractor agreements hoth within DHS and within
other departments.^
^DHS Form 11000-6 (08-04) "NON-DISCLOSURE AGREEMENT".
•'See also DHS directive (MD 11042) on "Safeguarding Sensitive But Unclassified (For Official
Use Only) Information," dated May 11, 2004.
''See CRS Report RL33303, "Sensitive But Unclassified" Information and Other Controls; Policy and Options for Scientific and Technical Information, February 15, 2006 Genevieve J. Knezo,
Specialist in Science and Technology Policy, Resources, Science, and Industry Division.

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I repeat the details of DHS's failed practices to underline the suggestion that DHS
is dramatically out of synch with its mandate to increase our security at home by
aggressively—and yet carefully—sharing information in order to frustrate terrorists
through prepared and coordinated responses of the most sophisticated intelligence
capabilities on one hand, and our most formidable first line of defense—local law
enforcement and first responders, on the other hand.
The Necessary Response
Adopt into legislation features which directly address your intentions.
1. DHS is the r i g h t place to begin. The current classification system within
government is out of control and likely uncontrollable. Someone needs to start over
with a new test-bed. OUS, with its critically mission of communicating effectively
across the federal government and with all other layers of state and local
institutionsm has the greatest incentive for change.
2. Give DHS near-term objectives and extra resources to achieve concrete results. Hold the Secretary of Homeland Security accountable for the mandates contained in the law which dispensed such sweeping power.
3. The D N I has the authority to mandate DHS as a test-bed and to direct other
departments and agencies to cooperate in changing the range of intelligence and information control systems. Hold the DNI accountable by regularly measuring
achievements within organizations under his control.
4. Provide built-in monitoring by independent and experienced observers such
as the Information Security Oversight Office 9nd the Public Interest Decl9Ssification Board and provide the monitors with the resources to do their job.
5. The tear-line system designated by Congress four years ago is the right standard. It needs major attention to standardize guidance materials which can he applied with precision. All intelligence publication and sharing should he premised on
carefully and formally defining sources and methods which require protection by isolating the smallest number of critical details. Information which requires less protection will receives greater circulation and earlier decontrol.
6. Provide t r 9 i n i n g 9nd performgnce evaluation incentives throughout all levels of DHS, in order to assure that the information which needs tight sources and
methods control—and only that information—receives the ultimate protection.
7. Create an electronic met9d9t9 tggging system which requires that rigorous
classification decision making will follow established guidance. Use it to assure that
all levels understand they must conform with estahlished practice and their effectiveness can and will be calibrated. Such a tagging system not only improves accountability, hut also allows corrections and the protection of information improperly handled.
8. Demand and reward less inform9tion control in order to m9ximize communication.
Changing goals require reinforcement that professionalizes every level and
every aspect of the information control process.
• Translate Information Control Guides (Classification Guides) into action directives about wh9t 9nd how to communic9te rather than simply what
and when information might he declassified or decontrolled.
• Provide opportunities for training and conceptual exercise which insist on
communication up and down the line as well as lateral reviews and find mechanisms to make sure that the communication runs to, 9S well 9S f r o m , all
intended recipients.
9. Hold government officigls 9nd employees 9ccount9ble f o r their decisions.
• When mistakes come to light, reeducate and retrain.
• Rethink the scope and purpose of hoth past practices and contemporary innovations hy insisting managers manage the process with a willingness to keep
changing procedures until they truly work.
• Remove 9uthority from those who abuse it.
• Hold supervisors responsible by requiring them to assume additional
monitoring and t r a i n i n g responsibilities i f those r e p o r t i n g to them f a i l
to perform well-defined and specifically designated responsihilities. Similariy reward them when their aides perform their communication roles well.
. End the incentive to classify simply because over classifying has no consequences to individuals but information released can he career ending.
• Institute pro-active audits and correlated retraining.
• Allow government employees and motivated citizens—such as users of the
FOIA—to bring mistakes to light. Follow-up in a transparent manner to demonstrate that improved communication and improved information controls are

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not necessarily on separate planes but are integrated concerns of all stakeholders in a democracy.
10. Encourage the Office of the ONI and full range of Agencies under ONI authority—including but not limited to OUS—to take careful cognizance of the well established t r a d i t i o n of background briefings i n w h i c h national security officials and the media communicate inform9lly in a manner meant to inform the
public (including the Congress and others in the Executive) and provide a degree
of confidence that secrecy is not heing used to erode or impede civil liberties and
free expression.
• Include training for national security officials on responsible interaction with
the news media by including the news medi9 in the t r 9 i n i n g
• Offer the media opportunities to learn about the laws, regulations and
practices w h i c h involve secrecy and other national security protocols.
We would a l l do well to recall that our freedom has been protected and
our homes have been secure because—as a people—we have understood
how to best to share information and how best to respond together to mutual threats.

Mr. CARNEY. MS. Spaulding for 5 minutes, please.
STATEMENT OF SUZANNE E. SPAULDING, PRINCIPAL,
BINGHAM CONSULTING GROUP LLC
Ms. SPAULDING. Thank you, Chair, ranking member and members of the committee. I very much appreciate this opportunity to
be here today to testify about classification issues at the Department of Homeland Security. It is a very important issue, and I
commend the committee for making it a priority.
In my 20 years working national security issues for the Government, I have seen firsthand how important it is to get this classification issue right. It may seem counterintuitive to some, but
avoiding overclassification is essential to protecting vital national
security secrets. Those handling classified documents will have
greater respect for that Top Secret stamp if they know that things
are only classified when they their disclosure will truly harm national security.
When things are classified that clearly would not harm national
security, it tempts some individuals to believe that they can decide
what is really sensitive and what is not. Now let me be clear that,
in making that observation, I am in no way trying to excuse the
disclosure of classified information, merely to note that the risk of
leaks I believe is heightened by overclassification.
A similar phenomenon follows the increasingly common practice
of selective declassification by Government officials. Strategic and
carefully considered decisions to make previously classified information available to the public can be important in increasing
transparency. But when the disclosures appear to be designed to
advance a particular political agenda or to gain an advantage in a
policy dispute, it again undermines the respect for and confidence
in the classification system. And this risk is heightened when the
declassification is done selectively, so as to reveal only intelligence
that supports one side of the issue, leaving contrary intelligence
classified.
It is equally essential for our national security that information
that can be shared without jeopardizing national security is not
prevented by overclassification from getting to those who need it
and could make use of it.
It is appropriate that the committee has decided to begin with
an effort to make the Department of Homeland Security the gold

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standard for reducing overclassification, because it is DHS that
faces the most significant imperative to provide relevant informationtoawiderange of users,including those at the Stateand local
level, the private sector, and even within DHS who are not traditional members of the national security community and are unlikely to hold security clearances. I f information is unnecessarily
restricted,itthreatenshomelandsecurity by hampering theability
of these key players to contribute to themission.
Iknow the committee is consideringanumber of ideas,anumber
of which have already been articulated here today, and I think
these are very sound suggestions There are additional near term
and longer-term steps that the committeemight also consider.
Cne,requirethat intelligence documentsbewritten in anunclas
sified version first to the maximum extent possible. leather than
creating a tear-line of unclassified or less sensitive information at
the bottom ofadocument,why not set up the system so that no
classifieddocumentcanbepreparedwithout first entering information into the unclassified section atthe top ofthe document7This
exercise could prompt a more careful effort to distinguish between
truly classified information and that which can be shared more
broadlyandprovideavisual reinforcement of theimportance of
writing in anunclassified form.
Two,enforce portion marking.This used to be the standardpractice, where each paragraph was determined to be whether it was
classified or unclassified. We have drifted away from that, and I
think we should gobacktoreallyenforcing that requirement.
Three,usetechnologytotaginformationasitmovesthroughthe
system. Thisprovidesevengreater granularity thantheparagraph
portion marking, indicating which precise bits of information are
classified. And then these tags, perhaps embedded in metadata,
can movethroughthesystemwiththat information,facilitating the
productionoflessclassifieddocuments.
I^everse the incentive to overclassify. This will not change until
performance evaluations consider classificationissues. Itshouldbe
aspecific factor whenemployees are evaluated for moving up or for
raises, employees who routinely overclassify should be held accountable and receive additional training, and employees should be
rewarded for producing reports that canbewidely disseminated.
^ive, identify key federal. State and local officials who can re
ceiverelevantclassifiedinformationby virtue of their office, rather
than byhaving to getaclearance.This ishow we have alwayshandled it for Members ofCongress. More recently, we have included
Governors^ and DHS should consider extending it to other key offi
cials.
And,six,developinnovativeways of sharing informationwithout
handingover documents^ and I have got some specifics on that in
my prepared testimony.
Inconclusion,these a r e j u s t a f e w ideas,basedonpracticalexperience working in the classified environments for nearly^decades.
I know the committee is aware of the outstanding work of the
Marklel^oundation and others, andlrecommend those to your con
siderationaswell.
Theproblemof overclassification is an enduring one and presents
adaunting challenge.The committee is to be commended for taking

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up
thatchallengeandendeavoringtosetanewstandardatDHS,
andlappreciate the opportunity to contribute to that effort.
Thankyou.
Mr. CARNEY.Thank you,Ms.Spaulding.
^The statement of Ms. Spaulding follows^l
Pl^l^PAl^l^DSTATl^t^l^^TOPSU^At^Nt^E.SPAUl.Dlt^G
^u^^ 2^,2007
Chairwoman Harman, Ranking member Reichert, and memhers of the Committee, thankyou forthisopportunity to testify today about classificationissuesat
the Department of Homeland Security This is an important issue andlcommend
the committeefor making itapriority.
I wasfortunate enough to spend 2()years working national security issues forthe
government, including^yearsatCIAand timeathoth theSenateand House Intelligence Committees. Ihaveseenfirsthandhowimportantitistogettheclassificationissueright.
Itmayseemcounterintuitiveto some,hut avoidingover-classificationis essential
toprotectingvitalnational security secrets.Those handling classifieddocuments
will have greater respect forthat^^Top Secref'stamp ifthey know that things are
only classified when their disclosure would truly harm national security. When
things are classified whose disclosure clearly would not harm national security, it
temptssomeindividualstobelievethattheycandecidewhatisreally sensitive and
what is not. This could apply to employees in the intelligence community or others,
suchasmemhersofthemedia.whoreceive classifieddocuments.Inmaking this observation, I certainly do not mean in any way toexcuse the disclosure ofclassified
information, merely to note that the risk ofleaks is heightened hyover classifica
tion.
Asimilar phenomenon follows the increasingly common practice of ^^selective declassification" hy government officials. This selective declassification can he accomplished either hy unofficial leaks to the media or by official decisions to declassify
material. Strategic and carefully considered decisions to make previously classified
information availahle to the public can be animportant and elTective way of increasing the transparency that is so vital for a functioning democracy. However, when
thedisclosuresappeartohedesignedtoadvanceaparticular political agendaorto
gain advantage in a policy dispute, it again undermines the respect for and confidence in the classification system. An employee or reporter who sees senior officials deciding that classification isn't as important as their particular agenda may
be emboldened to make similar decisions. This risk is heightened when the classification is done selectively so as to reveal only intelligence that supports one side
of the issue,whileleaving contrary intelligence classified.
^ust as getting theclassification process right is vital for protecting true secrets,
itisessential thatinformation that canbeshared withoutjeopardizingnational security is not prevented hy over-classification from getting to those who could make
u s e o f i t . A s t h e 9 ^ I I CommissionReportmadeclear, thisisparticularly urgentfor
ourcounterterrorismefforts.
ItisappropriatethattheCommitteehas decided tobegin with anefforttomake
the Department ofHomeland Security the ^^Gold Standard" for reducing overclassification, since OUS faces themost significant imperative to provide relevant informationto,andreceiveandanalyzeinformationfrom,a widerangeofuserswhoare
nottraditional memhers of thenationalsecurity community. I^ey playersatthe
state and local level, in the private sector, and within 0HS7 own entities, are unlikely to haveclearances. Yet they serve vital rolesin protecting the homeland and
can provide, benefit from, and help analysts to better understand, information that
is gathered overseas and in theUS. Ifthisinformation isunnecessarily restricted,
it threatens homeland security hy hampering the ahility of these key players to contrihutetothe mission.
I know that the committee is considering a number of ideas, including a certificationprocess to ensure that those who have authority to classify documents are
properly trained to recognize when information is truly sensitive and regular audits
ofexisting classified documents to assess the scope and nature ofany overclassifica
tion. I think these are sound suggestions. There are additional near-term and
longer-termsteps that the Committeemight also consider.
I Rec^uire that documents be w r i t t e n i n unclassified version first, to t h ^
ma^imume^tentpossible.Traditionalpracticeintheintelligencecommunityhas
heen to prepare a classified document refiecting the intelligence and then, i f dis-

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9^
semination to non-cleared individuals was required, to prepare an unclassified
versionatthe hottomofthe document after a^^tearline."These are known as^^tear
sheets^" the recipient would tearoff the bottom portion toprovide to theun-cleared
recipient. Instead, tofacilitate theadmonition tomove from a^^need to know" to a
^^need to share" culture—what the l^arkle Foundation called a ^^culture of distrihution"—why not set up the system so that no classified document can he prepared
withoutfirst entering informationintheunclassifiedsectionatthe top of thedocument.There may he times when almost nothing can he put it the unclassified por
tion,hnttheexercisecouldpromptmorecarefulefforttodistinguish between truly
classified information and that whichcan he sharedmore broadly. And putting the
nnclassified version at the top visuallyreinforces the shift in priorities
2.^nforce^^portionmarl^ing.^^Itusedto hestandard practice that each paragraph ofadocument had to he individually determined and marked as classified or
nnclassified. This requires more careful consideration ofwhat information is actually sensitive and assists in any later efforts to provide an unclassified version of
the document. I^y sense is that, over time, documents are increasingly classified in
their entirety, with no portion marking, making it far more difficult and cumbersome to ^^sanitize" the information for wider dissemination. A simple immediate
step would he to enforce the requirement for portion marking for every classified
document.
4^ Usetechnology t o t a g i n f o r m a t i o n a s i t m o v e s t h r o u g b tbesystem.The
optimum system would provide even greater granularity than the paragraph portion
marking, indicating what precise hits ofinformation are classified. These classification^^tags"—perhapsimheddedinmetadata—wouldthenmove
with thelnformation
as it flows through the system and facilitate the preparation of unclassified versions
ofdocuments The moreprecisely we canisolatetruly sensitive information, the
easier itwillhetoidentifyanddisseminate unclassifiedinformation.
4 l^eversethe^^dof9ult^^incentivetoover-cl9Ssify.^irtually alloftheincentivestodayareinfavorofoverclassification Thedangerofnotclassifyinginforma
tion that is indeed damaging to national security is well understood. What is not
as widely appreciated in the national security risk ofover classification. Thus, there
are effectively no penalties in the system for an individual decision to classify un
necessanly.This will not change until performance evaluations consider classification issues. Regular audits can provide insight into individual patterns as well as
overall agency performance, for example. Employees who routinely over—classify
should he held accountable and receive additional training And employees should
he rewarded for producing reports that can he widely disseminated. In addition, the
system should make It easy to produce unclassified documents and r e q u i r e a h i t
more effort toclassify something. Requiring that unclassified documents he written
first andenforcingtherequirement for portionmarkingaresomeexamples. Requiring thatthespecificharm tonational security hearticulatedineachcasemight be
another possibility, although it is important not too make the system so cumbersome that it undermines the ahility to he quick and agile when necessary. UIti
mately, you wantaprocess that makes it harder to go around the system that to
useit.
5 I d e n t i f y l^eyfederal,st9te, and l o c a l o f f i c i a l s w h o c a n r e c e i v e r e l e v a n t
classified information by virtue of their office rather than having to g e t a
clearance. This is how ithas always worked with l^emhers ofCongress. l^ore recently,this was adopted as the policy for governors. DHS should consider extending
this to otherkey officials.
^ Develop innovative w a y s o f s h a r i n g i n f o r m a t i o n w i t h o u t h a n d i n g o v e r
documents.Ultimately, the key is to enhance understanding and knowledge.Too
much emphasis is sometimes placedon sharingdocuments, rather than on sharing
ideas,questions,andinsightsgleanedfromthose documents.This canoftenhe done
without revealing the sensitive information in the documents. In addition, when
dealing withunclassifiedhut sensitiveinformation, such ashusinessproprietary information, DHS could consider ^^partnership panels" where the government and
business wouldcometogetherinaneutral space,shareinformation suchasvulnerahility assessments and threat information, so as to enhance mutual understanding
and benefit from each others insights, hut then leave the space without having
handedover the documents.
These are j u s t a f e w ideas based on practical experience working in classified en
vironments for nearly two decades.Iknow that the Committee IS aware of the out
standing workhy the ^arkleFoundationandothersindeveloping recommendations
for improving information sharingand will take those under consideration as well.
The problem of over-classification is an enduring one and presents a daunting
challenge.ThisCommitteeistohecommended for taking upthat challenge anden-

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deavoringtoset a new standard atOHS. I appreciate theopportunity tocontribute
to that important effort.

Mr.CARNEY.Mr.Agrast,please summarize for5minutes.
STATEMENT ^EMARI^AGRA^T,^ENIGREELL^^,CENTER
EOR AMERICAN PRGGRE^^
Mr.AGRAST.Thank you,Mr. Carney.
My name is Mark Agrast lamaSeniorl^ellow at the Center for
American I^rogress, wherelfocus oncivillibertiesandnationalsecurity concerns^ andlpreviouslyspentadecade on Capitol Hill
Most AmericansunderstandandaccepttheneedtoprotectGovernmentinformationwhosedisclosurewouldendangertheNation^s
security. But as the 9^11 Commission found, toomuch secrecy can
put our Nation at greater risk, hindering oversight, accountability
and information sharing, concealing vulnerabilities until it is too
late to correct them, and undermining the credibility of the classi
fication system itself.
Ten years ago, the Moynihan Commission concluded secrets
could beprotected more effectively i f secrecy is reducedoverall.^unfortunately, while the Clinton Administration made much headway
in reducing unnecessary secrecy, today we are moving in the oppo
site direction There were nearly three times as many classification
actions in 200^ as in the last year of the Clinton I^residency^ and
while I^residentClintondeclassifiednearlyabillionpages of historical material,thepace has slowed t o a t r i c k l e i n t h e l a s t ^ ars.
Today^s epidemic of overclassification stems in part from rules
that resolve all doubts in favor of nondisclosure and in part from
standards so hard to administer that even skilled classifiers often
getit wrong. Sometimesmaterial isclassifiedonly tosuppressem
barrassing information.
Take the decision to classify the Taguba I^eport on prisoner
abuse at Abu GhraibAreporter who had seenacopy of that report
asked Secretary I^umsfeld why it was marked Secret, ^ou would
have to ask the classifier, I^umsfeld said. Gr the decision to reclass i f y a I 9 5 0 intelligence estimate written o n l y I 2 days before Chi
nese forces entered I^orea, predictingChinese entry in the confiict
was not probable.
Still, despite such failures, at leastthere are rules what canbe
classified,forhowlongandby whom.The same cannotbesaid for
the designations used by I^ederal agencies to deny access to sen
sitive but unclassified information, ^ew ofthese pseudoclassifications have ever been authorized by Congress They allow virtually
any employee, and even private contractors, to withhold informa
tion that wouldn^tevenrate aConfidential stamp, with fewstand
ards or safeguards toprevent error and abuse.
As the Chair noted, last Sunday^s Washington I^ost described a
pseudo classification scheme invented by the ^ice president himself. His office has been giving reporters documents labeled treat
asTopSecret^SCI, anapparentattempttotreatunclassifiedmaterial as though it were Sensitive Compartmented Information, a
special access designation reserved for secrets whose disclosure
wouldcause exceptionally grave damage to national security.
I commend thecommittee, thesubcommitteefor its commitment
to doing the oversight that is solong overdue^ andlhopeyouwon^t

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stop at oversight. I t has been 10 years since the Moynihan Commission urged Congress to legislatethe rules that protect national
security information, r a t h e r t h a n l e a v i n g i t u p to theexecutive
branchtopoliceitself. I t i s t i m e f o r Congress to takeupthat challenge.
In some cases, this will require Government-wide solutions. I^or
example. Congress could and should reinstate the presumption
against classification in cases of significant doubt, the Clinton era
policy which the Moynihan Commission urged Congress to codify.
Congress should also rein in the use of pseudo-classification, at
a minimum prohibiting agencies from adopting unclassified designations that are not expressly authorized and mandating strict
standardsfor any designationsit does authorizetominimize their
impact onpublic access.
Better still. Congress could refrain from authorizingunclassified
designations in the first place Such powers are all too easily given^
and, once they are in place, it IS virtually impossible to get rid of
them.
I^inally, Congress can take steps to reform the system one agency
a t a t i m e b y initiating reformsatthe Department of HomelandSecnrity. By making DHS the gold standard. Congress can promote
best practices throughout the system.
My full statement includes recommendations to improve oversight of the classification system at DHS and to reduce the harmful
effects of pseudo-classification as well. Iwould^ustreviewacouple
ofthoseinthehalfaminuteorsothatlhaveleft.
Iwould recommendthat Congress establish an independent DHS
Classification B.eview Board to ensure that information is declassified as soon as it no longer meets the criteria for classification.
Congress should establish an independent ombuds office within
DHStoassistwithdeclassificationchallengesandrequestsfor declassification. It shouldrequiretheDHS Inspector General toconduct periodic audits ofthe DHS classification program and report
to Congress on the appropriateness of classification decisions. And
it should require DHS to implementasystem of certification for
DHS officials with classification authority and to provide themwith
training andproperclassificationpractices.
Iwould refer you to my testimony for recommendations regard
ingsensitiveinformationcontrols.
I d o think that by helping to ensure that the Government keeps
secret only what needs to bekept secret, these measures andothers would enhance both openness and security at DHS and
throughout the Government.
Thankyou
IThe statement ofMr. Agrast follows^l
PH^PAl^^DSTAT^^^^T OP ^ A H l ^ O . AGHAST

^l^^^2^,2^^7
Madame Chair, Ranking member Reichert, and memhers of the subcommittee,
thank you for conducting this hearing and inviting me to testify
^ y name is ^ a r k Agrast. I am a Senior Fellow at the Center for American
Progress, wherel workonissuesrelated to theConstitution, separationof powers,
terrorism and civilliherties,and the rule oflaw.
Refore joining the Center, I was an attorney in private practice and spent over
adecade on Capitol Hill,most recently as Counsel and I^egislative Oirector to Con-

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gressman William D. Delahunt of ^Massachusetts. A biographical statement is appended to my testimony
In an address to the Oklahoma Press Association inFebruary 1992, former Oirector of Central Intelligence, Robert
Gates, now the Secretary ofDefense, noted
that the phrase ^^CIAopenness"can seem as much an oxymoron as ^^governmentfru
gahty" and ^^bureaucratic efficiency.'
That seeming contradiction in terms illustrates the anomalous role that secrecy
plays inademocracy that depends so profoundly on an informed and engaged citi
zenry.
At the same time, most Americans understand and accept the need to withhold
from public view certain national security information whose disclosure posesagen
u i n e n s k o f h a r m to the secunty ofthe nation
Rut theeventsof 9^11 taughtushowdangerouslynaiveit would he toequate secrecy withsecurity. As the 9^IICommission conclude,toomuch secrecy canput our
nation at greater risk, hindering oversight, accountahility.and information sharing.
Too much secrecy—whether through over-classification or through pseudo-classification—conceals our vulnerabilities u n t i l i t is toolateto correct them.
It slowsthedevelopment of thescientificand technical knowledge we need tounderstand threats to our security and respond to them effectively
It short-circuits public debate, eroding confidence in the actions o f t h e govemment.
And finally,it undermines the credibility of the classification systemitself, encouragingleaks and breeding cynicism about legitimate restrictions. As Associate
justice Potter Stewart famously cautioned inthe Pentagon Papers case:
I should suppose that moral, political, and practical considerations would dictate
t h a t a v e r y first principle of that wisdom would he an insistence upon avoiding secrecy for its own sake For when everything is classified, then nothing IS classified,
and the system becomes one to he disregarded by the cynical or the careless, and
to be manipulated hy those intent on selfprotection or selfpromotion.Ishould suppose,in short, that the hallmark o f a t r u l y effective internal secunty system would
he the maximum possible disclosure, recognizing that secrecy can hest he preserved
only whencredihility is truly maintained.^
TheCommissionon ProtectingandReducing Government Secrecy,chairedhy
Sen Daniel Patrick moynihan,reachedasimilar conclusion in Its 1997 report; ^^The
best way to ensure that secrecy IS respected, and that the most important secrets
re^no^^secret,isfor secrecy tobereturnedtoitslimitedhutnecessary role.Secrets
canbeprotectedmore effectively ifsecrecyisreducedoverall."^
^^^^^^^c^^^^^,^^c^^^^^^c^^^o^^^^^ec^^^^^^c^^^o^
The moynihan Commission was created hy Congress to consider whether it was
time torethink the vast system of secrecy that had been brought into beingduring
the Cold War The Commission recommendedaseries of statutory reforms to the
classification system that were widely praised but never implemented.
The spirit of the ^oynihanrecommendations can certainly be discerned i n t h e
contemporaneous amendments to the classification system that were instituted hy
President Clinton under E^ec. OrderNo. 1295^. The orderestahlished a presumption of access,directing that'Tf thereis significant doubt about the need toclassify
information, it shall not he classified." Similarly, the order provided that ^Tf there
issignificant doubt ahouttheappropriatelevelofclassification,it shall heclassified
at the lower level."The Chnton order also;.
^ Eimitedthedurationofclassification,providing thatwherethe classifier cannot estahlishaspecific point at which declassification shouldoccur,the material
will he declassified afterlO years unless the classification is extended for sue
cessive lO-year periods under prescrihedprocedures.
^ Provided for automatic declassification ofgovernment records that are more
thantwo years old and have heen determined bythe Archivist of theUnited
States tohave permanenthistorical value, allowingforthecontinuedclassificationofcertainmaterials under specifiedprocedures.
^ Estahlished a balancing test for declassification decisions in 'perceptional
cases,"permitting senior agency officials to exercise discretion to declassify information where"the need to protect such informationmay he outweighed by
thepublic interest indisclosure of the information."
^ Prohibited reclassification ofmaterial thathadheen declassified and released
to the public under proper authority.
'N.Y. Times Co. v. U.S., 403 U.S. 713, 729 (1971) (Stewart, J., concurring).
^ REPORT OF THE COMM'N ON PROTECTING & REDUCING Gov'T SECRECY (1997) at xxi [hereinafter
Moynihan Commission Reportl.

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^ Authorized agency employees to hringchallenges to the classification status
of information they helieve to he improperly classified
^ Created an Interagency Security Classification Appeals Panel USCAP) to adjudicate challenges to classification and requests for mandatory declassification,
and to review decisions to exempt information from automatic declassification.
The changes instituted hy President Clinton were largely erased hy his successor,
whoissuedarevisedexecutiveorderin20^^.Exec. OrderNo. 1^292 eliminatedthe
presumption of access, leavingofficials free toclassify information in casesof'^significant doubt."It also:
^ Relaxed the limitationson the duration ofclassification, and made it easier
for the periodto he extended for unlimited periods.
^Postponed the automatic declassification of protected records 25 or more years
old from April 200^ toDecemher200^, andreduced theshowing that agencies
must maketo exempt historicalrecordsfromautomatic declassification.
^Revived the ahility of agency heads to reclassify previously declassified information if the information "may reasonably be recovered."
^Allowed the Director of Central Intelligence to ovemde decisions hylSCAP,
suhject only to presidential review.
The resultsofthis shift in pohcy arerefiected in the annual classification statistics published hy the Information Security Oversight Office (ISOO). The numberof
classification actions bythe government hit an alltime high of I 5 ^ m i l l i o n in 200^,
with only slightly fewer ^1^.2 million) reported in 2D05. This was nearly twice the
number ofclassification actions ^^.^ million) taken in 2001, the first year of the
Rush administration, and three times the number ^5.^ million) taken in 199^, the
last year ofPresidentClinton'ssecondtermB^
As classification actions have soared, declassification actions have plummeted.
President Clinton oversaw the declassification of more historic materials than all
previous presidents combined During his last six years in office,
million pages
were declassified, hitting anall-timehighof2t)^millionpages in 1997 alone. Under
the Rnsh administration, the numbers have fallenprecipitously Only 2^5million
pages weredeclassifiedfrom2001—2(^05, with fewer than^t) million pages weredeclassifiedin2005B^
Apartfromits costs tohothopenness and security, all this classifyinganddeclassifyingcomes at a heavy financial cost as well. In 2005, the cost of securingclassified information was ^'^.7 billion, ofwhich only ^57 milhon was spent on declassification In all,for every dollar the federal government spent to release old secrets,
itspent^l^^tocreatenewones.^
What the numbers cannot revealis whether classificationdecisions arelawful and
appropriate. Estimates ofthe extent of over-classification vary, hut I was particularly struck h y l ^ r Leonard's testimony before this suhcommitteelast Inarch, in
which he said that an audit conducted bythe Information Security Oversight Office
found that even trained classifiers, armed with the most up-to-date gnidance, "got
it clearly right only ^^percent of thetime."^
There are also instances in which over-classification is the result, not of honest
error, hut of a desire to conceal. Roth the Chnton and Rush executive orders prohihit the use of the classification system to "conceal violations of law, inefficiency,
or administrative error" or prevent embarrassment to a person, organization, or
agency,"'^et at least some recent classification decisions could have had little pur
poseotherthan tosuppress information that might he emharrassing to the government.
Aparticularly troubling example is the decision by the Department of Defense to
classify in its entirety the ^arch 200^report of theinvestigation hy^aj.Gen.Antonio ^.Taguba of alleged abuse of prisoners by members of the 800th l^ilitary Police
Rrigade at Raghdad's Abu Ghraih Prison. According toaninvestigation hy t h e ^ i norityStaffof theHouse Committee onGovernment Reform:
Onereporterwhohad revieweda widely disseminatedcopy ofthe reportraised
the issue in a Defense Department hriefing with General Peter Pace, the^ice
Chairman o f t h e ^oint Chiefs of Stalf, and Secretary Rumsfeld. The reporter
noted that 'there's clearly nothingin there that'sinherently secret, such as intelligence sources and methods or troop movements'and asked: 'Was this kept
•'INFO. SEC. OVERSIGHT OFFICE, NAT'L ARCHIVES & RECORDS ADMIN., RETORT TO THE PRESI-

DENT 2005 at 13.

"W. at 15.

'''OPENTIIEGOVERNMENT.ORG, SECRECY REPORT CARD 2006 at 4.

Overclassification and Pseudo-classification: The Impact on Information Sharing: Hearing
Before the Subcomm. on Intelligence, Information Sharing and Terrorism Risk Assessment of the
House Comm. on Homeland Sec, 110th Cong. (2007) (statement of J. William Leonard).

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9^
secret because it would he emharrassing to the world, particularly the Arab
world7' General Pace responded that he did not know why the document was
marked secret.Whenaskedwhether he could say why the report was classified.
Secretary Rumsfeld answered:'No, you'dhave to ask the classifier.'^
The desire to prevent embarrassment seems also t o h a v e p l a y e d a r o l e i n t h e
Rushadministration'saggressivereclassificationcampaign. According toaFehruary
200^ report hy the National Security Archive, the administration has reclassified
and withdrawn from public access9,o00documents totaling55,500pages,including
some that are over 50 years old. For example;
^ complaint from the Oirector of Central Intelligence tothe State Department
about the had publicity the CIA was receiving after its failure to predict antiAmericanriotsinColombiain 19^8.
^ Adocument regarding anunsanctionedCIApsychologicalwarfareprogramto
drop propaganda leafletsintoEastern Europe hy hotairhalloon that wascanceled after the State Department objected to the program.
^ A document from spring 19^9, revealing that the U.S. intelligence community'sknowledgeofSovietnuclearweaponsresearchanddevelopment acti^^ties
was sopoor that America and Rritainwere completely surprised whenthe Rnssiansexplodedtheir first atomic bomb six monthslater.
^ A 1950 intelligence estimate,writtenonly12 days before Chinese forces enteredl^orea, predicting thatChineseinterventionintheconfiictwas"notprohahle."^
These reclassification actions call to mind the observations o f t h e late Erwin N.
Griswold,formerSolicitorGeneraloftheUnitedStatesandDean of Harvard I.aw
School, who argned the Pentagon Papers case before the Supreme Court in 1971.
Presenting the case forthegovernment, hehadarguedthatthereleaseofthePentagon Paperswouldgravelydamagethenationalsecurity.Nearly two decadeslater,
Griswoldrefiectedonthelessons of that case;
It quickly becomes apparent to any person who has considerable experience
with classified material that there is massive overclassification and that the
principalconcern of the classifiers isnotwithnational security, but rather with
governmentalemharrassmentofonesortoranother.There may hesomehasis
lor short-term classification while plans are being made, or negotiations are
goingon, hut apart from details of weapons systems, there is very rarely any
real risk to current national security from the publication of facts relating to
transactions in the past, even the fairly recent past This is the lesson of the
Pentagon Papers expenence, and It may be relevant now.^
^^e^^^-G^^^^^^^^^^^^
For all its faults, the classification system has many virtues as well. Classification
actions are suhject to uniform legal standards pursuant to executive order. These
actions can he taken by a limited number of officials who receive training in the
standards tobe applied^theyare of limited duration and extents they are monitored
byafederal oversight officer they can be challenged^ and they can he appealed
The same cannot he said forthe potponrri of unclassified control markings used
by federal agencies tomanage access to sensitive government information, most of
which are defined hy neither statute nor executive order, and which collectively
have come to he known pejoratively as the "pseudoclassification'system
Among the better known are Sensitive RntUnclassifiedt^SRU),Sensitive Security
Information ^SSI), Sensitive Homeland Secnrity Information^SHSI), Critical InfrastmctureInformation^CII),I^awEnforcement Sensitive (^I^ES),andForOfficialUse
Only^FOUO)
While some ofthese control markings are authorized by s t a t u t e , o t h e r s have
beenconjuredoutofthinair. Some of thesepseudo-classificationregimes allow virtually any agency employee ^and often private contractors) to withhold information
without justification or review, without any time limit, and with few,if any,internal
controlsto ensurethat themarkingsarenot misapplied.
A n a r c h 200^report by theGovernment Accountability Office(GAO) found that
the2^ federal agencies surveyed use 5^ differentinformation control markings^l^
'MINORITY STAFF OF HOUSE COMM. ON THE JUDICIARY, loTH CONG., REPORT ON SECRECY IN
THE BUSH ADMINISTRATION (2004) at 50.
"MATTHEW M . AID, NAT'L SEC. ARCHIVE, DECLASSIFICATION IN REVERSE; THE U.S. INTELLIGENCE CMTY'S SECRET HISTORICAL DOCUMENT RECLASSIFICATION PROGRAM (2006).

Erwin N. Griswold, Secrets Not Worth Keeping: The Courts and Classified Information,

WASH. POST, Fob. 15, 1989, at A25.

"'See, e.g.. Aviation and Transp. Sec. Act, Pub. L. No. 107-71; Fed. Info. Sec. Act, Pub. L.
No. 107-347; Homeland Sec. Act, Pub. L. No. 107-296; Critical Infrastructure Info. Act, Pub.
L. No. 107-296.

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o f w h i c h belong t o o n e agency)to protect sensitiveunclassified national security i n formation. The GAO also found that the agencies use widely divergent definitions
o f t h e same controls.
According to the GAO report, the Department o f H o m e l a n d Security ^DHS) employs five o f t h e s e control markings; For Official Use Only (FOUO) (agency-wide);
I^aw Enforcement Sensitive ^I^ES) ^agency-wide); I^imited Official Use (I^OU) ^U.S.
SecretService);ProtectedCritical Infrastructure I n f o r m a t i o n ( P C I I ) (Directorate for
Preparedness); and Sensitive Security I n f o r m a t i o n ^SSI) ^Transportation Security
A d m i n i s t r a t i o n a n d U . S . C o a s t Guard).
T h e d e p a r t m e n t ' s a p p r o a c h t o t h e u s e of these d e s i g n a t i o n s i s s e t f o r t h i n a O U S
management directive regarding the treatment of sensitive but unclassified information originating w i t h i n the a g e n c y . ^ ^ T h e d i r e c t i v e i s c h i e f i y concerned w i t h the For
Official Use Only designation, which i t says will he used "to identify sensitive b u t
nnclassified information w i t h i n the DHS community that is not otherwise specifically descrihed and governed by statute or r e g u l a t i o n . " T h e directive i d e n t i f i e s l l
categories of SRU information that can he designated as FOUO, and provides t h a t
the designationcan he made by any DHS employee, detailee, o r c o n t r a c t o r a n d w i l l
remain i n effect indefinitely u n t i l the originator or a management official determines otherwise.
For g o o d m e a s u r e , t h e d i r e c t i v e n o t e s t h a t w h e r e other agencies a n d i n t e r n a t i o n a l
organizations use similar terminology but apply different requirements to the safeguarding o f t h e i n f o r m a t i o n , the information should he treated i n accordance w i t h
whichever requirements are t h e m o r e r e s t r i c t i v e .
A 200^ report by the ^ A S O N Program Office at I ^ I T R E Corporation suggests that
thedesignationauthontiesatOHSarenot
atypical; " ' S e n s i t i v e b u t u n c l a s s i f i e d
data is increasingly defined by the eye o f t h e beholder. I ^ a c k i n g i n definition, i t is
correspondingly lacking i n policies and procedures for protecting^or not protecting)
it, anri regarding how and hy whom i t is generated and used."^^^
As i n the case of classification and reclassification actions, these designations
have at times heen used not to protect legitimate national security secrets, h u t to
spare the government from embarrassment. I n a Inarch 2005 letter to Rep. Christopher Shays, then the Chairman o f t h e House Committee on Government Reform,
Rep.Henry Waxmancitedexamplesinwhich;
^ The State Department withheld unclassified conclusions by the agency's I n spector General that the C I A was involved i n preparing a grossly inaccurate
global terrorism report.
^ The State Department concealed unclassified information about the role of
^ohn Rolton, Under Secretary o f S t a t e for Arms Control, i n the creation o f a
fact sheet that f a l s e l y c l a i m e d t h a t l r a q s o u g h t u r a n i u m f r o m Niger.
^ The Department o f H o m e l a n d Security concealed the unclassifiedidentity and
c o n t a c t i n f o r m a t i o n o f a n e w l y a p p o i n t e d T S A o m b u d s m a n whoseresponsihility
it was to interact daily w i t h memhers o f t h e public regarding airport security
measures.
^ The CIA intervened to block the chief U.S. weapons inspector Charles A .
Duelfer, from reveahng the unclassified identities of U.S. companies t h a t conducted business w i t h Saddam Husseinunder the O i l f o r Food program.
^ The Nuclear Regulatory Commission sought to prevent a nongovernmental
watchdoggroup from making public criticisms o f i t s nuclear power plant security efforts based on unclassified sources.^'^
I n another case, currently i n litigation, a federal a i r marshal blew the whistle
whenTSAattemptedtoreducesecurity on"high
risk"fiights,andtheagency
allegedly retaliated hy retroactively designating the material he had disclosed as SensitiveSecurity Information(SSI).^'^
Another concern arises out of t h e i n t e r p l a y h e t w e e n u n c l a s s i f i e d c o n t r o l m a r k i n g s
and the Freedom of I n f o r m a t i o n Act (FOIA). Certain unclassified control markings,
including Sensitive Security I n f o r m a t i o n (SSI) and Critical I n f r a s t r u c t u r e Informa" U . S . GOV'T ACCOUNTABILITY OFFICE, REP. N O . GAO-06-385, INFORMATION SHARING; T H E
FEDERAL GOVERNMENT NEEDS TO ESTABLISH POLICIES AND PROC;ESSES FOR SHARING TERRORISMRELATED AND SENSITIVE BUT UNCLASSIFIED INFORMATION (2006).

'^Safeguarding Sensitive But Unclassified (For Official Use Only) Information, Mgt. Dir. No.
11042 (2004), at http:11www.fas.orgIsgpIoihergovIdhs-sbu.httnl, revised by Mgt. Dir. No.
11042.1, (2005), at http:I lwww.fas.orglsgplothergovldhs-sbu-rev.pdf [hereinafter Safeguarding].
' I JASON PROGRAM OFFICE MITRE CORPORATION, HORIZONTAL INTEGRATION: BROADER ACCESS MODELS FOR REALIZING INFORMATION DOMINANCE 5 (2004).

"H.R.

Rep. No. 109-8, at 16 (2005) (letter from Henry Waxman to Christopher

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tion ^CII), are specifically exempt by statute from release under FOIA. Rut some
agencies h a v e c l a i m e d that other unclassified control markings constitute an independentlegal basis f o r e x e m p t i n g information from public disclosure under FOIA—
even i n the absence of an express statutory exemption and even where the i n f o r m a
t i o n d o e s n o t f i t w i t h i n an existing exemption.
Such claims prompted the American RarAssociation'sHouse of Delegates to adopt
a r e s o l u t i o n i n F e b r u a r y 2 0 0 ^ u r g i n g the Attorney General to clarify that such designations s h o u l d n o t he u s e d t o withhold f r o m t h e public i n f o r m a t i o n t h a t is not authorized to he withheld by statute or executive order
As i t happens, t h e O H S d i r e c t i v e m e e t s the A R A s t a n d a r d . I t p r o v i d e s t h a t FOUO
information is not automatically exempt from disclosure under FOIA and that
FOUO information may he shared w i t h other agencies and government entities
"provided a specific need-to-know has been estahlished and the information is
shared i n furtherance o f a c o o r d i n a t e d and official governmental activity."^^
Rut whether or not an agency h a s a l e g a l basis for withholding pseudoclassified
information not otherwise exempt under F O I A i s almost beside the point. The desi g n a t i o n i s i t s e l f s u f f i c i e n t t o exert a c h i l l i n g e f f e c t on FOIAdisclosures. A s T h o m a s
S. RIanton o f t h e National Security Archive testified before a subcommittee o f t h e
House Committee on Government Reform i n Inarch 2005, "the new secrecy stamps
tellgovernmentbureaucrats'don'triskit';ineverycase,thenewlabelssignal'find
areasontowithhold.'"^^
A n article published i n the W a s h i n g t o n P o s t o n ^ n n e 2 ^ , 2007, h r o u g h t t o l i g h t
apseudoclassificationschemeapparentlyinventedby
the'^icePresidentofthe
U n i t e d S t a t e s . H i s o f f i c e h a s been giving reporters documents labeled: "Treated As;
Top Secret^SCI"—an apparent attempt to treat unclassified material as though i t
were Sensitive Compartmented Information ^SCI)—a special access designation reserved for secrets whose disclosure would cause 'exceptionally grave damage to national security."'^^
U n l i k e the Cheney innovation. Special Access Programs ^SAPs), which l i m i t accessahoveand beyond the three-tieredclassificationsystem, are authorized b y l a w ,
and are confined t o a r e l a t i v e l y limited circle o f s e n i o r o f i i c i a l s . E x e c . O r d e r No,
12^59, as amended, provides that unless otherwise authorized hy the President,
only certain named officials are authorized t o e s t a h l i s h such programs. The list i n cludes theSecretaries of State, Defense, and Energy, and t h e O C I , or t h e p r i n c i p a l
deputy o f e a c h . Interestingly, t h e l i s t d o e s n o t i n c l u d e t h e ^ i c e P r e s i d e n t — p e r h a p s
in a n t i c i p a t i o n o f h i s n o v e l assertion t h a t t h e O f f i c e o f t h e ^ i c e P r e s i d e n t i s n o t a n
agency of the Executive Rranch and need not comply w i t h the requirement under
E x e c . O r d e r 1 2 ^ 5 9 that such agencies file an a n n u a l r e p o r t w i t h l S O O . ^ ^
T h e f a c t t h a t SAPs are a u t h o r i z e d h y e x e c u t i v e order d o e s n o t m e a n t h e y a r e i m mune from the deficiencies of pseudo-classifications. The l^oynihan Commission
noted a "lack of standardized security procedures" that "contributes to high costs
andotherdifficulties," andrecommendedtheestahhshment
of a s i n g l e s e t o f secur i t y standards for Special Access Programs—another of its sensible recommendat i o n s w h i c h , a s f a r as is k n o w n , h a s n o t h e e n c a r r i e d o u t . ^ ^
.^^^^^^^^^^^^^^^^^^^^^^^e^^
l^adame Chair, you and the suhcommittee should he commended for exercising
your oversight authority over the treatment of national security information—hoth
classified andunclassified—at the Department of Homeland S e c u r i t y . S u c h s c r u t i n y
is essential, and i t is long overdue.
I would also respectfully suggest t h a t t h e t i m e h a s come f o r t h e committee, and
for Congress, to exercise its^e,^^^^^^^t^^ authority over these matters. For 1^7 years.
Congress has largely ceded t h a t authority to the president, and a s l h o p e l h a v e
explained, the resnlts have been decidedly mixed.
I t has been ten years since the l^oynihan Commission urged Congress to legislate
therulesthatprotectnationalsecurity information,rather t h a n l e a v i n g i t u p t o t h e
executive hranch to p o l i c e i t s e l f I t is time for Congress t o t a k e up t h a t challenge.
A.^y^^^^^^^^^^^^^^^
Safeguarding, supra note 11.
'•''Emerging Threats: Over-classification and Pseudo-classification: Hearing Before the
Subcomm. on Nat'l Sec, Emerging Threats and Int'l Relations ofthe House Comm. on Gov't Reform, 109th Cong. (2005) (statement of Thomas S. Blanton).
1" Barton Gellman & Jo Becker, A Different Understanding with the President, WASH. POST,
June 24, 2007, at A l .
Peter Baker, Cheney Defiant on Classified Material; Executive Order Ignored Since 2003,
WASH. POST, June 22, 2007, at A l .

^"Moynihan Commission Report at 28.

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l^any of the problems facing the classification system are systemic, and they require comprehensive, government-wide solutions. Among other things, Congress
should reinstate the provisions of Exec. Order No. 1295^ which ^a) estahlished a
presumption against classification in cases of significant doubt (a policy which the
moynihan Commission urged Congress to codify); (h) permitted senior agency officials to exercise discretion to declassify information in exceptional cases where the
need to protect the information is outweighed by the public interest in disclosure;
and (c) prohibited reclassification ofmaterial that had been declassified and released to the public under proper authority.
Congress also shouldundertakeathoroughandcomprehensiveexaminationof the
growing use of agency control markings to restrict access to unclassified information, ^uch has been said, andrightly so,abouttheimportanceof information sharing among government agencies Rut what is the justification forasystem that en
trusts low level employees and private contractors with the non reviewablediscre
tion todetermine whether an unclassified document—a document that doesn't even
ratea"Confidential"stamp^a document that may not even qualify f o r a F O I A exemption—is too sensitivefor public view7
Refore Congress acquiesces in the further proliferation of these designations, it
should consider whether those that already exist place an unwarranted burden on
the free exchangeof information, notonly amonggovernment officials, but between
the government and the people who elect it.
Ataminimum,Congress shouldprohibit agencies fromadoptingunclassifiedcontrols that are not expressly authorized hy statute (or executive order), and should
mandate strict standards for any controls it does authorize to minimize their impact
onpublic access.
H R 5112, the Executive Rranch Reform Act.which was reported by the House
GovernmentReform Committeeduringthe 109thCongress,directsthe Archivist of
theUnitedStates to promulgate regulationshanningthe use ofinformation control
designations not defined hy statute or executive order. If the Archivist determines
thatthereisaneed forsomeagenciestousesuchdesignations"tosafeguardinformation priorto review for disclosure," the regulations shall establish standards designed to minimize restrictions on public access to information. The regulations
shall be the sole authority for the use ofsuch designations, other than authority
granted by statute or executive order.
This approach would ameliorate some o f t h e worst features o f w h a t is today an
unregt^lated wilderness of inconsistent standards and insufficient checks. Rut it
begs the question of whether Congress should he authorizing agency ofiicials to
withhold uncla.ssified information in the first place. Such powers are all too easily
given, and once they are in place, it is virtually impossihie to get rid of them.
IhopethatCongresswillconsider codifying standards thatincorporatethesepolicies. Rut there are also many steps that can he taken to reform the management
ofnationalsecurityinformationone department a t a time. Ry undertaking suchreforms atthe Department of Uomeland Security—hy making DHS the "gold standard"—Congresscancreate a model for hest practices thatotheragenciescan adopt.
^.^^eG^^^^^^ii^^^^^^^y^^e^^^^^^^
^DCongressshouldestahlishanlnformationSecurity Oversight Office,modeled
after the Information Security Oversight Office at the National Archives and
Records Administration, tooversee security classification programs at DHS. Its
responsihilities would include development of implementing directives and instructions; maintenance of liaison with ISOO and agency counterparts; monitoring of agency compliance and preparation ofreports to Congress; and development of secunty classification education and training programs
^2) Congress shouldestablish anindependentOUSCIa.ssificationReviewRoard
toensure thatinformationisdeclassifiedassoon asitnolonger meets thecriteria for classification. Among the responsibilities o f t h e hoard would be to facilitate and review requests for declassification and classification challenges,
and to conduct an independent ongoing review ofclassified materials to determine whether they are properly classified.
(^)CongressshouldestabhshanindependentombudsofficewithinDHS toprovide assistance with cla.ssification challenges and requests for declassification,
(^)CongressshouldrequiretheOHSInspector General toconduct periodic audits o f t h e DHS classification program and report to Congress on the appropriateness ofclassificationdecisions.
(5) Congress shouldrequireOHS to implementasystemofcertificationforOHS
officials with classification authority and to provide them with training in prop
erclassificationpractices.
^.^^r^^^^^t^^^^^^^^^^^^^^^^^^^^^^^^^

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As noted above, I hope that Congress will reconsider the question of whether
agency employeesandprivatecontractorsshouldhegivenalicense to withholdunclassified, non FOIAexemptinformation from thepublic. Rut short ofcurtailing the
use of unclassified control markings, there are steps that can he taken by OUS to
minimize error and abuse, and reduce the impact of pseudo-classification on public
accesstoinformation.
^DCongressshouldrequire DHS toplace strict limitson thenumher ofagency
officials authorized to designate FOUO and other unclassified information as
controlled,to implementasystem of certification for DHS officials with designa
tion authority, and to provide authorized officials with trainingin proper designationpractices.
(2) Congress should require DHS to limit the duration of controls on unclassifiedinformationandprovideproceduresby
whichsuchcontrolscanheremoved.
(^) Congress should require DHS to develop procedures hy which memhers of
the public can challenge unclassified designations.
(^) Congress should require the DHS Inspector General toconduct periodic audits o f t h e use of controls on unclassified information and report to Congress
ontheappropriatenessofdesignations.
(5)TheUomeland Security Committee shouldoverseeDUSimplementationof—
a. The directives regarding the use of the SSI designation hyTSAwhich
Congress included in the DHS Appropriations Rill for F ^ 2007 (Pub. E.
109-295). Those directivesrequirereview of any document designated SSI
whose release is requested and require release of certain documents designated SSI after three years unless the OUS Secretary provides an explanation as to why i t should not be released.
b. The recommendations included in the GAO report of ^une 2005 evaluating theuseoftheSSIdesignationbyTSA.^^ TheGAOfoundsignificant
deficiencies in TSA's management of SSI, and recommended that the Secretary ofOHS direct the TSA Administrator to;
i. Establish clear guidance and procedures for using the TSA regulations to determinewhat constitutes SSI.
ii Establish clear responsihility for the identification and designation
ofinformation thatwarrantsSSIprotection.
iii. Establish internal controls that clearly define responsihility for
monitoring compliance with regulations, policies, and procedures governing the SSIdesignationprocessandcommunicatethat responsihility
throughout TSA.
iv. Establish policies andprocedures withinTSA forprovidingspecialized training to those makingSSI designations on how information is
to be identified and evaluated for protected status.
^ ^ ^ ^ ^ 1 ^ ^ ^ ^ ^

Ry helping to ensure that the government keeps secret only the information that
needs to he secret, these measures would enhance both openness and security—at
OUS andthroughout the government.
Thankyou.

Mr. GARNE'^i^.^ell, Ithank thewitnessesfor their testimony^and
^ remind each member he or she will have 5 minutes to c^uestion
thepanel.
^ now recognise myself for 5 minutes, and this is for all the witnesses. Ifyoucoulddoone thingtoovercometheoverclassilication
or pseudo-classification problem atDHS, what reform initiative or
best practice would you adopts 1 know Mr. agrast, you^ust ment i o n e d a f e w , b u t M r . l^eonard andMr.^rmstrong,Ms. Spaulding^
Mr. l^EONARD. G n e t h a t l would recommend,someagencies,such
as State and G l ^ , as a best practice have independent advisory
commissions comprised of historians that advise those agencies on
the effectiveness of their agencies^ declassification program. There
is no reason why such an advisory committee could not be established on the front end of the process^n advisory committee may
^' U.S. GOV'T ACCOUNTABILITY OFFICE, REP. No. GAO-05-677 TRANSPORTATION SECURITY ADMINISTRATION; CLEAR POLICIES AND OVERSIGHT NEEDED FOR DESIGNATION OF SENSITIVE SECURITY INFORMATION (20051.

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be ofthe principalconsumers, Stateandlocal oflicials with appropriate clearances who couldprovideadvicebacktotheDepartment
as to the effectiveness of whatthey are classifying and its impact
ontheir information needs.
Mr. ^Rl^STRONG. Mr. Garney, 1 would emphasise—1 think Ms.
Spaulding madereferencetothesamephenomenon—inthe tear—
line system, or something like the tear line system, emphasise the
communication of important information in the least—controlled
manner necessary, l^emember thatthe purpose o f a l l communication inGovernment,whether it is themost sensitive intelligence or
not,is toinfluence someone somewheretotake cognisance of it and
to change their behavior or focus their analytical skills. In doing
so,puttheemphasisoncommunicationandthenminimi;^eandrestrict the sources and methods portion of the communication to
protect it. 13ut put the emphasis on communicating, not withholding.
Ms. SPAUI^OING. i t h i n k themost important thing is to do something to begin to change the culture andthe mindset, and 1 think
t h a t i s set atthe top. Thatis atone and an emphasis t h a t i s set
at the top.
So^would consider issuing, maybe even from the president, an
^^ecutive Grder, for example, that would direct the agencies. Department of Homeland Security to begin with, to include in their
performance evaluations the issue of overclassilication and underclassification, how employees d o i n terms of getting the classification right, that that would be a f a c t o r i n h o w they are evaluated.
I t h i n k that would goalong way in setting the right tone
Mr. GARNER..^retheevaluatorsinyouropinionabletodothat^
Don^ttheyhaveavested interest in kindof keeping thesystemas
itis7
Ms. SPAUI^DING. ^ e l l , 1 think it would be combined with the
kinds of recommendations that have been made at this table, in
cludingregular audits ofdocuments thathavebeen classilied^ and
that would helptoinformthose kinds of performance appraisals as
to whether this employee regularly is found to have overclassilied
documents, for example, or whether this employee has w r i t t e n a
great number of unclassified reports that have been able to be
widely disseminated.
Those performance appraisals are fairly standardised actions^
and if those forms haveaspecific thing that you have to fill in that
relates to how this employee does in terms of their classilication
decisions,Ithink that would provide an appropriate incentive.
Mr.l^EONARO.^fl^could add to that,asafollow-on, another best
practice that is very closely related to that, the G l ^ , even though
i t i s not rec^uired atthe national level, rec^uires a personal identifier on every product they produced as to who was responsible for
theclassificationdecision^ andsomethinglikethatfacilitates afol
low up and holding people accountable.
Mr..^GRAST.lflcouldalsoadd,lcompletely agree withtherecommendations,particularly withthe remarks of Ms.Spaulding.
Mr l^eichert opened his portion of the hearing by talking about
his experience as a law enforcement officer atthe State and local
level. 1 think there are two kind of prosecutors. There are two
kinds oflaw enforcement officers. There isthe kind that says my

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f^^
^obis toconvict asmany peopleaspossible, andthereis the other
kind who says my ^ob is to get the truth, and 1 will be satislied
t h a t l h a v e done my ^obiflconvict the people who are guilty and
don^t convict the people who are not guilty.
1 think that is the cultural change thathas to happen at these
agencies so the premium is set not solely on the number ofdocuments you have successfully kept from the public but using discernment and using line judgment in determining when and
whether classificationdecisions should be made.
Mr.GARNE'^.Thankyou.
Mr.f^eonard,Iknow your office isresponsiblefor regulating classilication by agencies withinthe e^ecutivebranch^andyouconsist
ently stated thatthe Government classifies too much information,
^ h y is this happening, in your opinion7 t h a t i s the reason7
Mr. f^EONARD. ^easonsarevaried,butl wouldagreemorethan
anything else with Ms Spaulding^s assessment that it is really one
ofculture.^eareveryeffective informs ofholding people accountable for the inappropriate disclosure of information,either administrativelyor criminally.^ery rarely,ifever,have^ever seen anyone
held accountable for inappropriately withholding or hoarding infer
mation.
Mr.GARNE^.Too many people have classilication powers
Mr.f^EONARD.^es.
.another best practice—and Mr. .agrast mentioned this—is DG^
follows it. They actually rec^uire people to be trained and certified
before they can afli^classi^cation controls on the product, as opposed to ^ust having clearance and having access toit.
So something along those lines would facilitate accountability,
because you could have something to take away from them now i f
they abuseit, and it restricts theuniverseofpeoplethatyouhave
tomake sure are appropriately trained. So there i s a l o t of benefits
t o i t all around.
Mr.GARNE^.Thankyou.
^now recognise the ranking member,my good friend from ^ash
ington,Mr.reichert.
Mr.l^ElCUERT.Thank you,Mr.Ghairman.
l^ust wanted to go back to Mr Garney^s original c^uestion, which
was if you do one thing I w a n t to ask it in ^ u s t a h t t l e bit o f a
different way.
t h a t i s the biggest hurdle—Ihave an answer in my mind,in my
experience, but what is the biggest hurdle to overcome in this
wholeissue of not sharing information andoverclassifying7
Gkay,l w i l l g i v e y o u a h i n t a t l e a s t w h e r e l a m g o i n g w i t h t h i s .
Somebody mentionedthestovepipething..^d, tome,really toget
more specilic, governance, who has control over the information7
^ h o is the lead person7 .^t the local level in the sheriffs ofiice,
with
police departments and the sheriffs in the county, you
know,thebattleis over who controls the server that has theinfor
mation..^ndyouarerunningintothat sort o f a n i s s u e a t t h e ^ e d eral level.lam sure you are.
Mr. .^Rl^STRONG. ^ think what we have seen, Mr. reichert, is
that the leadership of the various departments—that we had the
merger into the Department of Homeland Security and specilic in
centives given—direction given to t h e D l ^ l to begin to break down

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f05
thebarriers,breakdownthe stovepipes.13utitrec^uires theleadershiptodothat.
The drift in the bureaucracy is toward safety, is toward the
norm, is toward withholding, is toward not exposing oneself to criti
cism. ^ n t i l andunless someoneinitiatesatestbedof anewdirection and puts the incentive on making sure that everyone knows
what they need to know, but all ofwhat they need to know, this
willnothappen.Things will not change.It willdefaultback tothe
old system.Ithink that is the problemwe are faced with.
Mr. l^ElCUERT.Gertainly the difliculty is highlighted as you bring
the
departments under the one Homeland Security umbrella.
13utitevengetsmorecomplicatedthenasyoureachoutsidetothe
other agencies that don^t report to the homeland security effort So
^ mean i t i s ahugeissue toovercome. Does anyone have any suggestions7
Mr f^EONARO Iwould suggest, Mr l^eichert, another ma^or bur
dleisthemyriadofinformationprotection regimes that e^ist within the federal Government. There is no individual who can comprehend and understand all of them, even know of all of them,
^ h i l e there are efforts under way within the executive branch to
streamline that and what have you, there are still contributing
issues, manyof them statutorilybased,informs ofestablishing re
c^uirements for protecting critical infrastructure information and
things along thoselines.^^at that r e s u l t s i n i s i t isincomprehensible to me how an operator, who has decisions to make o n a d a y
to day basis and getting information from multiple sources, how
they can even begin to understand what they can and what they
can^t disclose..^nd it can result inparalysis.
Mr.l^ElCUERT. It almost seems as thoughthelocal agencies take
the lead in this arena, .^s we in Seattle took a look at the l ^ l n ^
System spearheaded by t h e ^ S attorney's ofiice,the ^81 choosing
notto participate i n t h a t information-sharinge^periment and the
^.S. l^aval Intelligence then taking the lead with the l^.S. attorney's ofiice, linally after a fewyears we have a system in Seattle
now that we have partners.
I t h i n k one team a t a t i m e , one maybe part of the country a t a
time coming together,being able to showcaseasuccess,would you
not agree that might b e a w a y to address this issue7Mr^grast7
Mr. AGRAST. ^es, 1 very strongly agree. 1 think pilot programs
and State experimentation is really a very useful tool here, ^ ^ e n
people, as you have heard, are reluctant to change,lthink they
need to see success stones They need to see that it can work and
thatthereisabetterwaytodothesethings.
Mr. I^EICUERT. Ms. Spaulding, you mentioned along the same
linesthisculturalchange,and severalof you have.Ireally seethat
asreally thebiggestissue, and i t i s aleadership concern,you
know, from protecting to sharing. Do you have any ideas on how
toreally^umpstartthat7
Ms. SPAUEDING. ^ e l l , the Markle l^oundation talks about creating a culture of distribution, l^ut 1 thinkyou are right. That is
the most important thing, .^nd, as 1 said, 1 think there are some
suggestionsin terms ofcreating—thereis already, as Mr. f^eonard
pointedout,ahugeincentiveforclassifyingdocuments. It is career
ending if you fail to classify something that is then disclosed and

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causes harm to national security. So there is a huge incentive to
classify. It is much easier to classify a document. It is^ust a safe
bet.^nd wehave tocreate incentivesfor being more careful about
that decision and incentives for creating unclassified documents,
^ou know, as 1 said, 1 have got a number of suggestions for that
in my testimony.
13utldothink there are legitimate concerns that presentastum
blingblockB^ou asked about what are some of the ma^or stumbling
blocks.Having thetrust that an agency isn^t going totakeyour in
formationandsomehowdisrupt your operationalactivity,andlam
sureyouunderstande^actlywhatlamtalking about.
Mr.^EicUERT.^es,ldo.
Ms. SPAUEOiNG.^dit isalegitimate concern,butit isalso one
of the ma^or reasons why we lind problems sharing information,
particularly among law enforcement and, you know, agencies that
have the ability to take action or are undertakingoperations. . i ^ d
^ saw this in spades when 1 was at the intelligence, when 1 was
at Gl.^, and their relationships with the other agencies, 1^131, Gus
toms, whatever, the concernson both sides o f t h a t t h a t one orthe
other wouldtaketheinformation andrunanoperationthat would
messupwhat the other agency had going.
Sothechallengethere,the solutionthereit seems tomehas got
to be operational coordination. It can^t be thatyou are allowed to
withholdthat information, a n d t h e r e l think isaplacewhereparticularly State and locals canprovide excellent models.
Mr. REICUERT. Those agencies thathave ongoinginvestigations,
especially with Gls, are very concerned about .sharing information
My time has e^piredMrGhairman,lyield back
Mr.GARNE^.Thankyou,Mr.l^eichert.
1 will nowrecogni^e Mr. Dent from l^ennsylvaniafor 5 minutes,
and we will probably do another round Okay
Mr.DENT.Thank you,Mr. Ghairman.
Ms Spaulding, you^ust brought up an issue t h a t l l i n d inter
esting, and 1 wonder if we could talk about this issue. There are
incentives to overclassify right now, but the only real control over
information resides in the classilication realm. Isn^t overclassilica
tion a natural reaction to unauthorised disclosure of sensitive but
nnclassilied materials7 There is no punishment for—serious punishment for releasing sensitive material.
Ms. SPAUEDING. .i^s 1 said in my testimony, 1 think that overcla.ssilicationactuallycontributestoalack of respect for the classilication mark and therefore actually makes it harder to protect
true national security secrets.
I t h i n k overclassilication isadetriment to protecting truly secret
information. So 1 do think that that is also part of the incentive
structure in terms of when you are looking at leaks is that overclassilicationdoes contribute tothatkindofculture as well.
1 think in addition to clearly trying tolind ways toidentify people who discloseclassifiedinformation and take action, firm action
against people whodiscloseclassiliedinformation, 1 t h i n k i t i s i m portantalsoatalllevels of Government toreinforcetherespect for
classilication markings.
Mr.DENT.^ell,lguess asafollowup,how canthe^ederalGovernment really balance the need7 ^ou know, how do we balance

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f07
thisneedlguesstoshareinformationontheonehand, andatthis
unclassified level, with the knowledge that somebody somewhere
continues to leak sensitive but unclassified information7 1 think
that is really the cru^ of the problem here.
Ms SPAUEOING My sense is that trying to hold more tightly to
thatinformation within those stovepipeshas not been aneffective
way of preventing those d i s c l o s u r e s ^ n d t h e r e f o r e , l t h i n k , a s l
said, in addition to trying to use technology to help us with audit
trails tokeeptrack of whois accessing information, whoisprinting
information, who has access to the information that might be disclosed and trying to identify those people and hold them account
able, that it really is important that we indicate that we have
taken more carein labeling things. So that when they arelabeled,
whether it is classiliedor sensitive,lawenforcement sensitive,that
in fact there has been a reasoned determination that could be
upheld as welook at it after thefactthat this would harm national
security or homeland security or law enforcement interests.
Mr..^Ri^STR0NG.Mr.Dent7
Mr.DENT.^es.
Mr..^Ri^STRONG.^fter three decades asa^ournalist inthis town,
Ihave to recognise that there is an information economy, there is
an information currency within secrecy,that every ma^or agency at
every senior level leaksclassiliedinformation, controls and manip
ulates classiliedinformation, andinparallel at other levels, either
in other agencies or in the same agencies, other people speakcan
didly, but they speak in terms of things that arenot genuinely se
cret.
^hen everything is secret, as l^otter Stewart said, nothing is se
cret.1^0 oneknows what torespect.Most senior oflicialshave some
criteria, make judgments every day,severaltimesaday,about how
to share information thatis technically classilied but to get it out
insomeform that itbelievesthepublicneedstoknowor their col
leagues need to know, without liling all the forms. I t has caused
problemsfromtimetotime,but there is anongoing communication
about what those standards are. .^nd i t i s possible, particularly in
the form that we are talking about today, to emphasise how to
communicate without damaging the national security better to do
it withinthe systemthan have it done without the system.
Mr.DENT. lguessyouareaddressingit,butthei^uestionlhave,
how do we balance this need to share this information at the un
classilied level with theknowledge that somebody somewhere continues to leak sensitive but nnclassilied information7 1 guess that
is the c^uestion.How doyou balance this7
Mr..AGRAST. Mr. Dent, onethinglguesslwouldhope we would
do is have these unclassified markings regulated by Gongress They
have taken on a life of their own. They are so numerous and so
varied, there are so few standards and safeguards, ^ou know, the
classilication system, with all its problems, looks pretty good compared to thepseudoclassilicationnonsystem.
Sorather than have agencies making ad hoc decisions and bringing the entire system of controlled information into disrepute,
shouldnot Gongress take a l o o k a t t h i s comprehensively and decide
whether such categories should e^ist at all7 Gr whether, instead.

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if information is truly in need of safeguarding, it ought not to be
classilied inthe lirstplace7
Mr.DENT.^ieldback
Mr.GARNE'^.Thankyou,Mr.Dent
^ e will startasecond round ofi^uestions here.
Mr. .Armstrong, inyour estimation, howeffective has DHS been
inproducing reports andproducts at theunclassiliedlevel7
Mr. .^Rl^STRONG. ^ e l l , we read unclassified material when i t i s
presentedbyDHS. 13ut,more often, wereadtherelevant information when it is put in unclassified form when i t i s leaked to DHS
becauseof the form of controls thathavebeen established that effectively discourage and inhibit candid communication.Thenumher
of inappropriate things that have happened to try and block contractors or the employees of contractors in using information in
labor disputes, for example, does not increase respect for the systems and the difficulty we have had is the difficulty of account
ability
Mr f^eonard administers some degree of accountability w i t h i n a
classilied system, but it is very difficult to do when, effectively, a
department has authority to create all sorts of constraints on com
munication thatarenotnecessarily constraintsdesignedtoprotect
national security^andthefartherwemoveawayfromthosefor the
original purpose to protect sources and methods, to protect shortterm objectives that needtobeaccomplished, to coordinate at differentlevelsofour government,and wemoveintoareaswherepolitical control and sensitivity—it seems to us on the outside that
the Secretary of Homeland Security has been virtually unaccount
ableto Gongress,unaccountableto other agencies and ineffective in
the administrationof his mandates.
Mr. GARNE'^.^at is the solution to that7
Mr. ^l^STRONG. ^ e l l , 1 don^tknow whatyouneed to do to get
him here to talk with you, but 1 think there are issues that can
be addressed aboutin apublice^ecutive session. Hehas unbelievably large sets of responsibilities, but at various levels throughout
the Department there are professionals who would like to do their
^ob properly Idon^t believe that they are getting the leadership
The leadership sometimes emerges when It IS variegated by c^ues
tions.
The truth—the most important purpose, ^oodrow Wilson said,
for Gongressisnottopasslegislationbuttoini^uireintohowgovernmentiseffectivelybeingdone^anditisthatprocessthatneeds
to occur and occur more publicly
MrGARNE^Thankyou
Mr. .agrast, in your estimation, how much information is being
withheld b y D H S and its private contractors that is nnclassilied
andnon^Gl^e^empt7
Mr..AGRAST.lactuallyhavenoidea how much is being withheld,
b e h a v e indications that, to the extent there are standards, they
arenot being followed. 1 will give you one example, i f 1 may, from
my prepared testimony.
The G^G, the Government .accountability Gflice, issued areport
in ^une of ^^05 evaluating the use of the SSI designation by the
TS.^, which is ofcourse a u n i t ofthe Departments and they found
significant deficiencies in TS^^s management of SSI information

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and recommended that the Secretary direct the administrator to
takeanumber of remedial actions.
Gne is to establish clear guidance and procedures for using the
regulationstodetermine whatconstitutesSSl.Thesecondistoes
tablish clear responsibility for the identification and designation of
information that warrants SSI protection. The third was to establish internal controls that clearly define responsibility for moni
toring compliance with regulations, policies and procedures governing the designation process and to communicate that responsibility throughout T S ^ ^ n d , linally, to establish policies and procedures within TS.^ for providing specialised training to those making SSI designations on how information is to be identified and
evaluated for protected status.
Glearly, those recommendations have yet to be implemented in
a proper way^ and it is surely within the purview of this sub
committee to ini^uire as to the progress that is or is not being
made.
Mr. GARNER. HowshouldDHSimplementthenewcontrolof nnclassilied information originating from Gl^l that .embassador
Mcl^amaradeveloped7Mr^grast, sorry tointerrupt your drink
there.
Mr. .AGRAST.^ou know, 1 wouldhave to give more consideration
t o h o w t h e y o u g h t to go about it on an agency basis Gertainly
there are some of these areas that areinterdepartmental in nature,
and some ofthese kinds of policies and practices rec^uire coordinat i o n . l a m not surethatasingle agency candoit.
Mr. GARNER. Soyoudon^t think i t i s s o m e t h i n g t h a t D H S could
doc^uicklyornecessarily7
Mr..^GRAST.l^otsure.
Mr. GARNE'^. Ms. Spaulding, doyou have any idea7
Ms SPAUEOING Gertainly one thing to consider,and particularly
whenyou are talkingaboutthese pseudoclassilications, is rec^uiring thatthey bedone a t a f a i r l y senior level. Mr. l.^eonardtouched
onthisboth withrespect to classilicationandpseudoclassilication,
having people well trained and certilied with the authority to, you
know,put that stamp onthe document. 8ut particularly i n t h i s
arealthinkitwouldbehelpfultomovethosedecisionstoamore
senior level.
Mr.OARNEy.Thankyou.
Mr.l^eichert,anymorei^uestions7
Mr. I^EICUERT. Thank you. 1 will ^ust make mine pretty c^uick
here.
f^ast year, we passed a bill that directed some cooperation in
lighting terrorism, cooperating at the international level, mostly
throughtechnology,those countrieslikelsraelandGanada andthe
l^.l^.andotherswhohavebeen—.Australia—whohavebeenkindof
dealing with this alittlelonger than wehave, alotlonger insome
cases. They have developed some technologies and some systems,
^ o u l d you consider that we should consult these countries who
havehad thise^perienceinclassifyingandunclassifyingandoverclassilication and pseudo—classilication7 Should we be lookingfor
leadershipfrom those other countries7.^nddoyou have any information or knowledge about that occurring now7 anybody

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Mr. f^EONARO. 1 don^t have any knowledge, direct knowledge in
terms of whether it is occurring or not, Mr. reichert. )^ut something along those lines, that definitely has merit, if only from the
perspective of ensuring that we have congruous systems. 13ecause
1 know that we do that on the classification level where we routinely,especially withour closealliesandfriendly nations, work to
ensure that wehave congruous systems that facilitate the sharing
ofclassilied information,especially whenwe are inacoalitionenvironment and things along those lines. So those types of efforts
clearly could bear fruit on the nnclassilied level.
l^ow to the extent ofwhether they are occurringor not, 1 really
don^tknow.
Mr. l^ElCUERT.^yone else have—
Mr..^l^STRONG. Most of thetechnologiesthatlthinkto which
you are referring that would be helpful here are employed in the
businessrealmalreadyandfor different reasonsandwithdifferent
levels, obviously, ofsecurity anddevotiontoprinciples. 8ut weare
talking about technic^ues. The notion of embedding metadata begins to track intellectual product and the ability to not only deter
mine whereithasgoneorhow it hasbeen usedor whether it has
been appropriately dealt with but also to automatically beginto
alertpeople tothe f a c t t h a t i t i s nolongercontrolledoritrec^uires
additionalcontrols for an additional reason.
.1^11 ofthose things arepresent athighlevels in certainbusiness
environments, but they are expensive, and the incentives have to
be high. Gapitalism tends to lind some degree of incentives. Gne
would think that homeland security and anti terrorism measures
could lind at least as highalevel.
Mr.l^ElCUERT.Mr..^grast,didyouhave—
Mr. .AGRAST. Gongressman, 1 think it is an extraordinarily
thoughtfulc^uestion. Therehasbeen atendency nottolookabroad
for answers, and 1 think that has demonstrated itselfto be a mistake, ^ e don^thave to do what other countries do, but we should
at least learnwhat we can fromthem.
Mr f^EICHERT^es Thankyou.
Gne last thoughtB^ith this new world of technology and our sol
diers lighting aroundtheworld and their access tovarious communication devices, cell phones and cameras in their cell phones and
computers, they are communicating back to their families and
friends realtime infoon battles occurringor briefings that are occurring. Howdoyousee thatissuebeingaddressedinthe sharing
ofinformation that could be critical to our operations in lighting
terrorism7
Mr. l^EONARD.^ell,whatlseethat is emblematic ofachallenge
wealwayshave,andthatis
weareplayingcatchuptotechnology
all the time, especially from the point of,
leveraging it but, 8,
understanding the ramilications from a security or vulnerability
pointofviewas well..andthen when weattempttoaddress it, we
usually do it in a hand-listed way, which is sometimes analogous
to trying to repeal gravity
So the challenge is to somehow, some way get in front of i^hat
curve all the time and fully understand the capabilities and the
limitations of the technology and try to keep our policies abreast

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32890

Ill
of it, rather than being in that proverbial catch-up mode which we
seem to be in.
Ms. SPAULDING. 1 don't think there is a technological solution,
whether it is some new technology or shutting down some of those
technology outlets, because you will never get them all. I think the
only solution to that particular issue is training. I mean, you have
simply got to sensitize, you know, those folks to what they can and
should not be sharing and disclosing publicly. And you will never
have perfect success with that, but it seems to me that trying to
attack that, the basis of technology, is not going to be very successful.
Mr. REICHERT. Yeah. You know—one of the experiences 1 will
share real quick—in the Green River investigation in 1987, the
search warrant to be served on the suspect who we finally arrested
years, years later—we had a meeting on the service of the search
warrant. 1 was the detective in charge of the search of this subject's
house; and, as I arrived, standing on the front porch was a reporter
from our local newspaper to greet me. So someone within the meeting immediately shared the information.
That is really one of the frustrations I think in this whole thing.
You talked about building trust and in those local agencies and
within those agencies within the Federal Government, too, in having the knowledge that their information is protected as the investigation is ongoing. The firewalls that can be built in a system to
protect that information is a huge hurdle I think to overcome and
also plays into the cultural change.
So 1 appreciate you being here this morning, and thank you so
much for your testimony.
Mr. CARNEY. Well, I want to thank the witnesses as well for their
invaluable testimony. This truly is an issue that we have to further
explore to shed light on the classification issue. It is absolutely essential.
The members of the subcommittee will probably have additional
questions for the witnesses, and we ask that you respond expeditiously in writing.
Hearing no further business, the subcommittee stands adjourned.
[Whereupon, at 11:15 a.m., the subcommittee was adjourned.]
FOR THE RECORD
PRKPARED OPENING STATEMENT OF THE HONORABLE JANE HARMAN, CHAIRMAN,
SUBCOMMITTEE ON INTELLIGENCE, INFORMATION SHARING, AND TERRORISM RISK
ASSESSMENT

MARCH 22, 2007

• Good morning. I'd like to welcome you all to this hearing on the increasing
problems of over-classification and pseudo-classification and their impact on what
is the lifeblood of our homeland security: effective information sharing with our
State, local, and tribal law enforcement officers.
• The United States has had a classification regime in place for decades: information and intelligence typically falls into one of three categories: Top Secret, Secret,
or Confidential.
• Our nation adopted this regime for one reason: to protect sensitive sources and
methods.
• Contrary to the practice of some in the federal Intelligence Community, classified markings are NOT to be used to protect political turf or to hide embarrassing
facts from public view.

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32891

11^
^ Indeed, a recurrent theme throughout the ^^11 Commission's report was the
needtopreventwidespreadover-classificationhy theFederalgovernment.The Commission found that over-classification interferes with sharing critical information
andimpedes efficient responses tothreats.
^ The numbers tell us that we are still not heeding the Commission's warning.
^Eight million new classification actions in 2 0 0 I ^ u m p e d t o 1 ^ million new ac
tions in 2005, while the quantity of declassified pages dropped fromlOO million in
2001 to 2^ million in 2005.
^ I n f a c t , s o m e agencies wererecentlydiscoveredtobewithdrawingarchived
records from public access and reclassifying theml
^ Expenseisalsoaproblem: ^^,5billionspentonclassificationin 2001 increased
to ^7.1 billion in 200^,while declassification costs fell from ^2^2 million in 2001 to
^^^.^^ million in 200^.
^ In addition, an increasing number of policies to protect sensitive but unclassified information from a range of Federal agencies and departments has hegnn to
haveadramatic impact.
^ A t t h e Federal level, over 2^ distinctpoliciesforthe protection ofthisinformation exist.
^ Unlike classified records, moreover, there is no monitoring o f o r reporting on
the use or impact ofprotective sensitive unclassifiedinformation markings.
^ The proliferation ofthese pseudo-classifications is interfering with interagency
informationsharing, increasing the cost of information security and limiting public
access.
^ Case in point; this document from the Department of Homeland Security
^HOEOUPRAOICAEI^ATIONINTHESTATEOFCAEIFORNIASUR'^E'^1
^ In a few weeks, I will he leading a field hearing toTorrance, Cahfornia, toexaminetheissuesofdomesticradicalizationand"home grown" terrorism.
^ T h i s DHS document^a survey on radicalization in the State of California^is
marked "UnclassifiedBFor Official Use Only."
^ O n P a g e l i n a f o o t n o t e , the survey states that It cannot be released "to the
public, themedia, or other personnel whodonothavea vahd'^need toknow' without prior approval ofan authorized DHS official."
^ Staffrer^uested and was deniedthat approval.
^ Stalf also asked foraredacted versionofthedocumentso wecoulduseatleast
some of itscontents at the coming California hearing. DHS was unable to provide
one.
^ I^et me be clear; I'm not denying thatthere may be sensitive information included in this survey,but it illustrates my point; what good is unclassified informationaboutthreatstothehomeland if we can't discuss at least some of it atahearing7
^ Uow can we expect OUS and others to engage the public on important issnes
like domestic radicalizationifwehidethehall'^
^ Unfortunately, this is nothingnew. In 1^^7, the Moynihan Commission stated
thattheproliferationofthesenewdesignationsareoftenmistakenfora fourthclassification level, causing unclassified information with these markings to he treated
like classifiedinformation.
^ These continuing trends are an obstacle to information sharingacross the Federal government and with State, local, and tribal partners—including most especially with our partners in the law enforcement community.
^ Unlessanduntil wehavearobustintelligenceandinformationsharingsystem
in place in this country, with a clear and understandable system ofclassification,
wewill be unahletopreventaterroristattackonthe scale of ^ ^ l l o r greater.
^ That is why this Subcommittee will focus its efforts in the 110th Congress on
improving information sharing with our first preventers—the men and women of
State, local, and tribal law enforcement who are the "eye^ and ears"on our front
lines.
^ And it's why we will pay particular attention to theissuesofover-classification
andpseudo-classificationof intelligence—and w h a t w e c a n d o t o ensurethat we err
onthesideofsharing information.
^ ^ e ' l l do this work in the right way^partnering with our friends in the privacy
and civilhberties community whowant to protect Amenca while preserving our
cherishedrights.
^ I would like to extend a warm welcome to our witnesses who will he talking
about these issues.
h o n o u r first panel,we have assembled an array of experts who will he testifying
about the extent of theseproblems and wherethings aretrending.

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32892

11^
^ Our secondpanelof lawenforcement leaderswilltalk about howover-classification and pseudo-classification are impacting their ability to keep our communities
safe.
^ In addition, I hope the witnesses will provide the Suhcommittee with a sense
ofhow wemightsolvethechallengesaheadofus, with thegoalofensuringthefiow
ofinformation between the Federalgovernment and State, local and tribal governments.
^^elcometoyouall.
PREPARED STATEMENT OF THE HONORABLE RENNIE G.THOMPSON, CHAIRMAN,
COMMITTEE ON HOMELAND SEGURITy
MARCH 22, 200^
^ Thankyou,MadameChair, andl^oinyouinwelcomingonr distinguished witnesses today to this important hearingon the problem of over- and pseudo-classificationof intelligence.
^ Information sharing between the Federal government and its State, local and
tribalpartners is critical tomaking America safer.
^ Rut we won'tgetthereifallwehaveismoreandmore classification,andmore
and more security clearances for people who need access to that classified informa
tion.
^ Thefocus should he different.
^ TheFederalgovernment insteadmust do a l l i t cantoproduce intelligenceproducts that are unclassified.
^ Unclassifiedintelligenceinformationis what our nation'spoliceollicers,first responders,andprivate sector partners—needmost.
^Theyhave told me time and time again that what they DON'T need is information about intelligence sources andmethods.
^ An officer on patrol in Jackson, Mississippi, or Des Moines, Iowa, has no use
for the name o f t h e person in Afghanistan, Africa, or elsewhere who provided the
information or whether itwas obtainedfromaninterceptedcommunication.
^ ^ h a t he or she wants to know is if the information is accurate, rehahle and
timely.
^ I f so, police chiefs and sherifi's can use it to drive their daily operations^espe
cially when it comes to deciding where to put their people to help prevent attacks.
^ That's what intelligence is all about; i f i t can'ttell an officeron theheat what
topreparefor andhow, what goodisif^
^ Over-classification and pseudo-classification are nothing new, but ^^11 has
madetheseprohlems worse.
^ It's my understanding that security concerns afterthe Septemher l l t h attacks
prompted .some agencies anddepartments to shield wholenewcategories of informationwithConfidential,Secret or Top Secret markings.
^ ^ h a t might have startedasanohleintentiontoprotectthehomeland hashrokendownintoasystemofoftenexcessive,abusive and^or politically motivatedclassificationdecisions.
^ It'stime to fix things.
^ This hearing will be the first of several on over- and pseudo classification and
will helpusgetahandleonthescope of theprohlem.
^ I hopeeachof the witnesses will he forthcomingin their assessments ofthese
issues and how we canhelp.
^^elcome to you all.Ilook forward to your testimony

^

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32893

UNITED STATES OF AMERICA
GOVERNMENT RESPONSE TO
COURT'S CLARIFICATION OF
RULING ON LIO MAX PUNISHMENTS,
DATED 26 OCTOBER 2012

V.

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

16 November 2012

The United States, by and through undersigned counsel, provides the following response
to the issues presented by the Court in its Ruhng Clarification, dated 26 October 2012.
The United States acknowledges that, to date, the Court has not published its ruling on
proposed elements and instructions in this case. For the purposes of this response, the United
States assumes the Court will instruct substantially in accordance with the elements proposed by
the Govemment in Appellate Exhibit CLXIX.
Is the proffered plea a lesser included offense of the charged offense or does it contain
amendments to the specification requiring Convening Authority approval to be a referred
offense? UnitedStates v. Morton, 69 M.J. 12 (C.A.A.F. 2010).
The United States will address each "revised" specification separately. See Defense
Revised Notice of Plea and Forum (hereinafter "Def. Not. of Plea"), dated 23 October 2012. In
short. Specifications 2, 3, 5, 7, 9, 10, and 15 are valid lesser-included offenses. The remaining
specifications contain amendments to the specification requiring general court-martial convening
authority (GCMCA) approval to be a referred offense.
LAW
Article 79, Uniform Code ofMilitary Justice (UCMJ), states that "[a]n accused may be
found guilty of an offense necessarily included in the offense charged or of an attempt to commit
either the offense charged or an offense necessarily included therein." UCMJ art. 79 (2012). To
determine whether an offense is necessarily included in the offense charged, the Court of
Appeals for the Armed Forces (CAAF) applies the "elements" test. United States v. Arriaga, 70
M.J. 51, 54 (C.A.A.F. 2011); UnitedStates v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010). The
elements test compares the statutory elements of each offense. " I f all of the elements of offense
X are also elements of offense Y, then X is [a lesser-included offense] of Y." Jones, 68 M.J. at
470. The greater and lesser offenses do not need to "employ identical statutory language."
United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010). "Instead, the meaning of the offenses
is ascertained by applying the 'normal principles of statutory construction.'" Id. (citing Carter v.
United States, 530 U.S. 255, 263 (2000)). Under the elements test, the appropriate comparison is
between the statutory elements of the offenses in question, not "to conduct proved at trial
regardless of the statutory definitions." United States v. Medina, 66 M.J. 21, 25 (C.A.A.F. 2008)
(quoting UnitedStates v. Schmuck, 489 U.S. 705, 716-17 (1989)).

APPELLATE EXHIBIT 3f/
PAGE REFERENCED:
PAGE
OF
PAGES

32894

Under Rule ^rCourtsMartial(RCM)910, an accused may plead guilty by exceptions
and substitutions. RCM910(a)(l). Acourtmartial may enterfindingsby exceptions and
substitutions, but "exceptions and substitutions may not be used to substantially change the
nature of theot^nse or to increase the seriousness ofthe otfense or the maximum punishment
tor it." RCM9I8(a)(I). Exceptions and substitutions that substantially change the natureofthe
oflense are deemedamaterial variance. ^^^^^^^^^^^^.^^..^^^^1^^,64 M.J.118,121(C.A.A.F.
2006). Tofindamaterial variance, the elements proven must be substantially different Irom
those charged. ^i^atl22. Changing the date orplace ofthe otfensemay,but does not
necessarily,change the nature or identity of an offense. RCM9I8(a)(l)discussion.
In order toracourt-martial to have jurisdiction over an oftense,"^e]ach charge betore the
courtmartial must be reterred to it byacompetent authority." RCM 201(b)(3). Referral is
defined as the "order ofaconvening authority that charges against an accused will be tried bya
specified courtmartial." RCM 601(a). CAAF has held that whenaconvening authority retersa
charge toacourtmartial,any lesserincluded offenses ofthat charge are referred with it, and
need not be separately charged. ^^^^^^^^^^^^^^^.^^.^^^^,71M.J.73,76(C.A.A.F.20I2)
(citing ^^^^^^^^^^^.^^^^^^^^^^^,47 CM.R. 331,333 (1973)). Additionally, CAAF has held
that whereaparticular charge or specification was not referred toacourtmartial,the court
martial lacks jurisdiction to enterfindingsover that charge or specification. ^^^^,71M.J.at76
(citing ^^^^^^^^^^^.^^^^^^^^.^,29MJ 421,424(CMA 1990))Finall^^
the convening authority'sentryintoapretrial agreement that calls tor pleas of guilty to offenses
different Irom those charged is the "functional equivalent" to an order reterring those oftenses to
acourt-martial. ^^i^^^^^^^^^^^^.^^..^^^^^^,69M.J.I2,16n.7(C.A.A.F.2010)(quoting
^i^^^^^.^,29MJat424)
Based on the toregoing statement ofthe law,the Govemment believes the Court must
determine whether the proffered specifications are, in fact, lesser included oftenses of the
charged otfenses, or whether the proflered specifications, utilising exceptions and substitutions,
substantially change the nature of theoffenses such that the courtmartial lacks^urisdiction to
enterfindingsoveraparticular charge or specification. Ifthe proffered specifications
substantially change the nature of theoffenses, the GCMCAmust either refer or constructively
refer(through entry intoapretrial agreement with the accused, tor example)the proflered
specifications. As such, the Govemment does not agree with the defense assertion that "the
inquiry at hand is whether the specifications as pled substantially change the natureofthe
oftenses and whether that change prejudices PFC Manning." DefNot.ofPlea,atl. No one
believes that the accused is prejudiced byavoluntary plea. The issue, in short, is the court
martiaFs^urisdiction in this case, and lack of^urisdiction cannot be waived by the accused.
RCM 905(e)
^^^^^^^^^^^^C^^^^^^
The revised Specificationlof Charge II contains amendments requiring GCMCA
approval to beareferred oflense. ^^^DefNot.ofPlea,atI. The proflered specification is nota
lesser-included oftense of the charged oftense because it is not necessarilyincluded in the
charged oflense. The proflered specification substitutes words and phrases that substantially
change the natureofthe oftense in that the original specification and the proffered specification

32895

have entirely difl^rent elements. For example, the proflered specification requires the Court to
find,
that the accused knew "that WikiLeaks might publish the intormation on the
intemet."
^^^i^^^^^^^^^C^^^^^^

The revised Specification2of Charge II isalesserincluded oflense of the charged
offense. ^^^Def Not.ofPlea,at2. The proftered specification utilises exceptions and
substitutions that do not substantially change the nature ofthe ot^nse. As such, the detense plea
containsasubset of elements of the charged specification.
^^^^^^^^^^^^C^^^^^^
The revised Specification3ofCharge II isalesserincluded offense ofthe charged
oftense. ^^^Def Not.ofPlea,at2. The proffered specification utilises exceptions and
substitutions that do not substantially change the nature oftheoft^nse. As such, the detense plea
containsasubset of elements ofthe charged specification.
^^^^^^^^^^^^C^^^^^^
The revised Specification4of Charge II contains amendments requiring GCMCA
approval to beareferred offense. ^^^Def Not.ofPlea,at3. The proffered specification is nota
lesserincluded oftenseofthe charged oftense because it is not necessarily included in the
charged offense. For example, the proflered specification requires the Court to find that the
accused "removed" records tromagovemment facility ti^r "an unauthorised purpose." The
charged oftense could be proven without necessarily establishing that the accused removed
records tromagovemment facility tc^r an unauthorised purpose.
^^^^^^^^^^^^C^^^^^^
The revised Specification5ofCharge II isalesser-includedolfense ofthe charged
otfense. ^^^Def Not.ofPlea,at3. The proffered specification utilises exceptions and
substitutions that do not substantially change the natureoftheoftense. As such, the defense plea
containsasubset of elementsofthe charged specification.
^^^i^^^^^^^^^C^^^^^^

The revised Specification6of Charge II contains amendments requiring GCMCA
approval to beareferred offense. ^^^DefNot.ofPlea,at34. The profl^ered specification is
notalesserincludedotfenseofthe charged oftense because it is not necessarily included in the
charged offense. For example, the proffered specification requires the Court to find that the
accused "removed" records tromagovemmenttacility tor "an unauthorised purpose." The
charged oftense could be proven without necessarily establishing that the accused removed
records tromagovemmenttacility tor an unauthorised purpose.

32896

^^^^^^^^^^^^C^^^^^^B^
The revised Specification7of Charge II isalesser-included oflense ofthe charged
of^nse. ^^^DefNot.ofPlea,at4. The proffered specification utilises exceptions and
substitutions that do not substantially change the natureoftheottense. As such, the defense plea
containsasubset of elements of the charged specification.
^^^^^^^^^^^^C^^^^^^^
The revised Specification8of Charge II contains amendments requiring GCMCA
approval to beareferred offense. ^^^Def Not.ofPlea,at4. The proftered specification is nota
lesser-included oftenseofthe charged offense because it is not necessarily included in the
charged oftense. For example, the proflered specification requires the Court to find that the
accused "removed" records tromagovemment facility f^r "an unauthorised purpose." The
charged oftense could be proven without necessarily establishing that the accused removed
records tromagovemmenttacility tor an unauthorised purpose.
^^^^^^^^^^^^C^^^^^B^
The revised Specification9of Charge II isalesserincluded offense of the charged
oftense. ^^^Def Not.ofPlea,at5. The proffered specification utili^^es exceptions and
substitutions that do not substantially change the nature oftheottense. As such, the defense plea
containsasubset of elements of the charged specification.
^^^^^^^^^B^^^^C^^^^^^^

The revised SpecificationlOof Charge II isalesserincluded oftense of the charged
oflense. ^^^Def.Not.ofPlea,at5. The proffered specification utilises exceptions and
substitutions that do not substantially change the natureoftheottense. As such, the defense plea
containsasubset of elementsofthe charged specification.
^^^i^^^^^^^^^^C^^B^^B^
The revised Specificationllof Charge II isaplea to an entirely ditferent act. ^^^Def
Not.ofPlea,at5. Specificationllof Charge II is oneofthe various original specifications
alleging misconduct in violation ofl8U.S.C.^ 793(e). The exceptions and substitutions tor
Specificationllare ditferent than the otherI8U.S.C.^ 793(e)offenses because the proffered
specification dramatically changes the date ofthe offense.
Charge Sheet ("on or aboutl
November 2009 and on or about8January 2010"). The Govemment agrees that ifthis case went
to trial, the evidence would show that the accused communicated the video in question on the
date protfered by the defense in its plea^ however, the evidence also indicates that the video in
question was originally communicated to unauthorised persons in the November^December 2009
timetrame. It is the first communication that is the subject ofSpecificationllof Charge II. As
such, the proftered specification substantially changes the nature or identity of theoftense,
requiring GCMCA approval tor the court martial to have^urisdiction.

32897

^^^^^^^^^^^^^c^^^^^
The revised Specification 12of Charge II contains amendments requiring GCMCA
approval to beareterred oflense ^^^DefNot ofPlea,at6 The proftered specification is nota
lesser included oftense of the charged oftense because it is not necessarily included in the
charged offense. For example, the proftered specification requires the Court to find that the
accused "removed" records tromagovemmenttacility tor "an unauthorised purpose." The
charged oftense could be proven without necessarily establishing that the accused removed
records tromagovemmentt^cility tor an unauthorised purpose.
^^^^^^^^^^^.^^C^^^^^^^
The revised Specification I3of Charge II contains amendments requiring GCMCA
approval to beareferred offense. ^^^DefNot.ofPlea,at6. The proftered specification is nota
lesserincluded otfenseofthe charged offense because it is not necessarily included in the
charged oflense. For example, the prottered specification requires the Court to find that the
accused had "unauthorised possession" ofaState Department cable. The charged offense could
be proven without necessarily establishing that the accused had unauthorised possession ofthe
State Department cable in question.
^^^^^^^^^^^^^C^^^^^^
Therevised Specification 14ofCharge II contains amendments requiring GCMCA
approval to beareferred offense. ^^^Def Not.ofPlea,at7. The proftered specification is nota
lesser-included offenseofthe charged oftense because it is not necessarily included in the
charged oflense. For example, the protfered specification requires the Court to find that the
accused had "unauthorised possession" ofState Department cables. The charged oftense could
be proven without necessarily establishing that the accused had unauthorised possession ofthe
State Department cables in question.
^^^i^^^^^^^^^^C^^^^^^

The revised SpecificationI5of Charge II isalesserincluded offenseofthe charged
oftense. ^^^Def Not.ofPlea,at7. The proftered specification utili^^es exceptions and
substitutions that do not substantially change the nature oftheoffense. As such, the defense plea
containsasubset of elements of the charged specification.
Assuming the Court accepts the proffered plea asalesser included offense of the charged
offense or the Convening Authority approves amendment of the specification, t h a t i s the
maximum punishment for each specification in accordance withthe accused's proffered
pleaIAWRCM1003(c)(l)(B)and^^^^^^^^^^^^^.^^^^^70M.J.39(C.A.A.F.2011)7
^^^^^^^^^^^^C^^^^^^
Pursuant to the Court'sruling datedI9July 2012,SpecificationlofCharge II is not
closely related to any oftense listed in Part IVof the Manual tor Courts-Martial, nor is it directly

32898

analogous to an oflense underthe United States Code
Court'sRuIing on Lesser Included
Of^nse Maximum Punishments, datedl9July 2012 The Court ruled that the maximum
punishment f^r Specificationlof Charge II would be confinement f^r2years,adishonorable
discharge, and total torfeiture of all pay and allowances, because Army Regulation 380 5
establishedacustom of the service penalising disclosures of classified and sensitive inlormation,
if the conduct was charged asaviolation of Article 92,UCMJ. ^ ^ i ^ ^ ^ . Because the gravamen of
the proftered specification is stilladisclosure of govemment information to an unauthorised
person or entity,the maximum punishment ofthe proftered specification should remain2years
confinement,adishonorable discharge, and torteiture of all pay and allowances.
^^^^^^^^^^2^C^^^^^^B^
The proffered Specification2ofCharge II is directly analogous to an otfense under the
United States Code^specifically,I8U.S.C.^ 793(e). The elements ofthe proflered specification
and the tederal statute are essentiallythe same. ^^^^^^^^i^^^^^^.^i^.^^^^,70M.J.39,43
(C.A.AF2011)(discussing^^^^^^^^^^^^^^.^^^^^^^,64MJ381 (C.A.A.F 2007)).Thus, the
maximum punishment ofthe proffered specification should remainIOyearsconfinement,a
dishonorable discharge, and torteiture ofall pay and allowances. The defense has essentially
removed two phrases fiom the original specification:(l)"rclating to the national detense,"and
(2) "reason to believe such inlormation could be used to the injury ofthe United States or to the
advantageofanyforeignnation"^^^ Def NotofPlea,at2 However, u n d e r I 8 U S C ^
793(e), the Govemment is not required to prove that the accused had reason to believe the
inlormation "could be used to the injury ofthe United States" when the accused had
unauthorised possession of any "document,writing, code book, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the
national detense." ^^^I8U.S.C.^ 793(e). In other words, the "reason to believe" scienter
requirement only applies to intangible inlormation relating to the national defense, not the
tangible items listed above. ^^^^^^^^^^^i^^^.^^^^^^^^^^,20I2^L 490331^
Oct.l6,2012)("Importantly,^ 793^e] differentiates between'tangible'NDI, described in the
'documents'clause('any document,...or note relating to the national detense'), and'intangible'
NDI,described in the'intormation'clause('intormation relating to the national detense').")^
^^^^^^^^^^^.^^.^^.^^^,445 FSupp2d602,612(E.DVa. 2006) ("Second, Congress expanded
the category ofwhat could not be communicated pursuant to 793(d) and(e)to include
'inlormation relating to the national defense,'but modified this additional item by addinga
scienter requirement....").
^^^^^^^^^^.^^C^^^^^^^
The proflered Specification3ofCharge II is directly analogous to an oflense under the
United States Code^specifically,18U.S.C.^ 793(e). The elementsofthe proflered specification
and the tederal statute are essentiallythe same, ^^^^^^^^^^^f^^^.^ ^^.^^^^,70 M.J.39,43
(CAAF20II)(discussing^^^^^^^^^^^^^^^^^^^^,64MJ38I(CAAF 2007)) Thus, the
maximum punishment ofthe proftered specification should remainlOyearsconfinement,a
dishonorable discharge, and torteiture ofall pay and allowances. The defense has essentially
removed two phrases from the original specification:(I)"relating to the national detense,"and
(2) "reason to believe such inlormation could be used to the injury ofthe United States or to the

32899

advantage of any toreignnation"^^^ Def NotofPlea,at2 However, u n d e r l 8 U S C ^
793(e), the Govemment is not required to prove that the accused had reason to believe the
inlormation "could be used to the injury ofthe United States" when the accused had
unauthorised possession ofany"document, writing, codebook, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the
national detense."^^^18U.S.C^ 793(e) In otherwords, the "reason to believe" scienter
requirement only applies to intangible inlormation relating to the national defense, not the
tangible items listed above^^^^^^^^^^^^^^.^^^^^^^^^^,20I2^L 490331^
Oct.l6,2012)("Importantly,^ 793^e] differentiates between'tangible'NDI, described in the
'documents'clause('any document,...or note relating to the national detense'), and'intangible'
NDI,described in the'intormation'clause('intormation relating to the national detense').")^
^^^^^^^^^^^.^^.^^.^^^,445 FSupp. 2d 602,6I2(ED.Va. 2006) ("Second, Congress expanded
the category ofwhat could not be communicated pursuant to
793(d) and(e)to include
'inlormation relating to the national defense,'but modified this additional item by addinga
scienter requirement....").
^^^^^^^^^B^^^C^^^^^^

The protfered Specification4of Charge II is closely related to Article 121,UCMJ. As
such, the maximum punishment of the proffered specification should belyearconfinement,a
badconduct discharge, and tort^itureof all pay and allowances, because the property at issue is
military property ofavalue of^500 or less.
^^^^^^^^^^.^^C^^^^^^
The proffered Specification5of Charge II is directly analogous to an oftense under the
United States Code^specifically,18U.S.C.^ 793(e). The elements ofthe proflered specification
and the federal statute are essentiallythe same. ^^^^^^^^^^^^^^^.^i^.^^^^,70 M.J.39,43
(CAAF20Il)(discussing^^^^^^^^^^^^^.^^^^^^^,64MJ381(CAAF 2007)) Thus, the
maximum punishment of the proffered specification should remainIOyearsconfinement,a
dishonorable discharge, and torteitureof all pay and allowances. The detense has essentially
removed two phrases Irom the original specificatiom(l)"relating to the national defense,"and
(2) "reason to believe such information could be used to the injury ofthe United States or to the
advantageof any toreign nation." ^^^DefNot.ofPlea,at2. However, underl8U.S.C.^
793(e), the Govemment is not required to prove that the accused had reason to believe the
intormation "could be used to the injury ofthe United States" when the accused had
unauthorised possession of any "document,writing, code book, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the
national detense." ^^^I8U.S.C.^ 793(e). In other words, the "reason to believe" scienter
requirement only applies to intan^ble inlormation relating to the national detense, not the
tangible items listed above^^^^^^^^^^^^^^.^^.^^^^^^^^,20I2^L^^^
Oct. 16, 20I2)("Importantly,^ 793^e] differentiates between'tangible'NDI, described in the
'documents'clause('any document,...or note relating to the national detense'), and'intangible'
NDI, described in the'intormation'clause('intormation relating to the nationaldefense').")^
^^^^^^^^^^^.^^.^^.^^^,445 FSupp2d602,612 (E.D.Va. 2006) ("Second, Congress expanded
the category ofwhat could not be communicated pursuant to
793(d) and(e)to include

32900

'information relating to the nafional defense,' but modified this additional item by adding a
scienter requirement....").
Specification 6 of Charge II
The proffered Specificafion 6 of Charge II is closely related to Article 121, UCMJ. As
such, the maximum punishment of the proffered specification should be 1 year confinement, a
bad-conduct discharge, and forfeiture of all pay and allowances, because the property at issue is
military property of a value of $500 or less.
Specification 7 of Charge II
The proffered Specification 7 of Charge II is directly analogous to an offense under the
United States Code; specifically, 18 U.S.C. § 793(e). The elements of the proffered specificafion
and the federal statute are essentially the same. See United States v. Beaty, 70 M.J. 39, 43
(C.A.A.F. 2011) (discussing UnitedStates v. Leonard, 64 M.J. 381 (C.A.A.F. 2007)). Thus, the
maximum punishment of the proffered specification should remain 10 years confinement, a
dishonorable discharge, and forfeiture of all pay and allowances. The defense has essentially
removed two phrases from the original specification: (1) "relating to the national defense," and
(2) "reason to believe such informafion could be used to the injury of the United States or to the
advantage of any foreign nation." See Def Not. of Plea, at 2. However, under 18 U.S.C. §
793(e), the Govemment is not required to prove that the accused had reason to believe the
information "could be used to the injury of the United States" when the accused had
unauthorized possession of any "document, writing, code book, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model, instmment, appliance, or note relating to the
nafional defense." See 18 U.S.C. § 793(e). In other words, the "reason to believe" scienter
requirement only applies to intangible information relating to the national defense, not the
tangible items listed above. See UnitedStates v. Kiriakou, 2012 WL4903319, at *1 (E.D. Va.
Oct. 16, 2012) ("Importantly, § 793 [e] differentiates between 'tangible' NDI, described in the
'documents' clause ('any document, ... or note relating to the national defense'), and 'intangible'
NDI, described in the 'information' clause ('information relating to the nafional defense').");
UnitedStates v. Rosen, 445 F. Supp. 2d 602, 612 (E.D. Va. 2006) ("Second, Congress expanded
the category of what could not be communicated pursuant to §§ 793(d) and (e) to include
'information relafing to the national defense,' but modified this additional item by adding a
scienter requirement....").
Specification 8 of Charge II
The proffered Specification 8 of Charge II is closely related to Article 121, UCMJ. As
such, the maximum punishment of the proffered specification should be 1 year confinement, a
bad-conduct discharge, and forfeiture of all pay and allowances, because the property at issue is
military property of a value of $500 or less.
Specification 9 of Charge II

32901

The proflered Specification9of Charge II is directly analogous to an offense under the
United States Code; specifical1y,18U.S.C.^ 793(e) The elementsofthe proftered specification
and the tederal statute are essentiallythe same. ^^^^^^^^^^^^^^^.^^^^^^,70 M.J.39,43
(CAAF2011)(discussing^^^^^^^^^^^^v.^^^^^^^,64MJ381(CAAF 2007)) Thus, the
maximum punishment ofthe proftered specification should remainlOyearsconfinement,a
dishonorable discharge, and torteiture ofall pay and allowances. The defense has essentially
removed two phrases from the original specification:(l)"relating to the national detense,"and
(2)"reason to believe such information could be used to the injury ofthe United States or to the
advantageofany toreign nation." ^^^DefNot.ofPlea,at2. However, under18U.S.C.^
793(e), the Govemment is not required to prove that the accused had reason to believe the
information "could be used to the injury ofthe United States" when the accused had
unauthorized possession of any "document,writing, code book, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model, instmment, appliance, or note relating to the
national detense." ^^^18U.S.C.^ 793(e). In other words, the "reason to believe" scienter
requirement only applies to intangible information relating to the national defense, not the
tangible items listed above^^^^^^^^^^^^^^.^^.^^^^^^^^, 2012 WL 49033
Oct.16, 2012) ("Importantly,^ 793^e]ditterentiates between'tangible'NDI,described in the
'documents'clause('any document,...or note relating to the national defense'), and'intangible'
NDI,described in the'intormation'clause('intormation relating to the national defense').");
^^^^^^^^^^^^.^^.^i^.^i^^,445 F.Supp. 2d 602,612 (E.D.Va. 2006) ("Second, Congress expanded
thecategoryofwhatcouldnotbecommunicatedpursuantto^^ 793(d)and(e)to include
'information relating to the national defense,'but modified this additional item by addinga
scienter requirement....").
^^^^^^^^^B^^^^C^^^^^^

The protfered SpecificationlOof Charge II is directly analogous to an offense under the
United States Code; specifical1y,18U.S.C.^ 793(e). The elements ofthe proftered specification
and the tederal statute are essentiallythe same. ^^^^^^^^i^^^^^^.^^.^^^^,70 M.J.39,43
( C A A F 2011)(discussing^^^^^^^^^^^^^^^^^^^^,64M.J.381(CAAF 2007)) Thus,the
maximum punishment ofthe proftered specification should remainlOyearsconfinement,a
dishonorable discharge, and forfeitureof all pay and allowances. The defense has essentially
removed two phrases from the original specification:(l)"relating to the national detense,"and
(2) "reason to believe such information could be used to the injury ofthe United States or to the
advantage ofany toreign nation." i^^^Def Not.ofP1ea,at2. However, underl8U.S.C.^
793(e), the Govemment is not required to prove that the accused had reason to believe the
information "could be used to the injury ofthe United States" when the accused had
unauthorized possession of any "document,writing, code book, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model, instmment, appliance, or note relating to the
national detense." ^^^18U.S.C.^ 793(e). In other words, the "reason to believe" scienter
requirement only applies to intangible information relating to the national detense, not the
tangible items listed above. ^^^^1^^^^^^^^^^.^^.^^^^^^^^, 2012 WL 4903319,
Oct. 16, 2012) ("Importantly,^ 793^e]difterentiates between'tangible'NDI, described in the
'documents'clause('any document,...or note relating to the national detense'), and'intangible'
NDI, described in the'information'clause('intormation relating to the national defense').");
^^^^^^^^^^^.^^..^^.^^^,445F.Supp. 2d 602,612(E.DVa. 2006) ("Second, Congress expanded

32902

the category of what could not be communicated pursuant to 793(d) and(e)to include
'information relating to the national defense,'but modified this additional item by addinga
scienter requirement....").
^^^^^^^^^^^^^C^^^^^^^
The protfered SpecificationllofCharge 11 is directly analogous to an oflense under the
United States Code; specifically,18U.S.C.^ 793(e). The elementsofthe proftered specification
and the federal statute are essentiallythe same. ^^^^^^^^^^^^^^^.^v..^^^^,70 M.J.39,43
(CAAF2011)(discussing^^^^^^^^^^^.^^.^^^^^^^,64MJ381(CAAF 2007)) Thus, the
maximum punishment ofthe prott^red specification should remain 10yearsconfinement,a
dishonorable discharge, and torfeiture ofall pay and allowances. The defense has essentially
removed two phrases from the original specification:(l)"relating to the national defense,"and
(2)"reason to believe such information could be used to the injury ofthe United States or to the
advantage ofany foreign nation." ^^^DefNot.ofPlea,at2. However, underl8U.S.C.^
793(e), the Govemment is not required to prove that the accused had reason to believe the
information "could be used to the injury ofthe United States" when the accused had
unauthorized possession of any "document,writing, code book, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model, instmment, appliance, or note relating to the
national detense." i^^^l8U.S.C.^ 793(e). In other words, the "reason to believe" scienter
requirement only applies to intangible information relating to the national defense, not the
tangible items listed above^^^^^^^^^^^^^^.^^.^^^^^^^^, 2012 WL 4903319^
Oct. 16, 2012)("1mportant1y,^ 793^e] differentiates between'tangible'NDI,described in the
'documents'clause('any document,...or note relating to the national detense'), and'intangible'
NDI, described in the'intormation'clause('information relating to the national detense').");
^^^^^^^^^^^.^^..^i^.^^^,445 FSupp2d602,612(E.DVa 2006) ("Second, Congress expanded
the category ofwhat could not be communicated pursuant to 793(d) and(e)to include
'information relating to the national defense,'but modified this additional item by addinga
scienter requirement....").
^^^^^^^^^^^^^C^^^^^^
The proftered Specification 12of Charge II is closely related to Article 121,UCMJ. As
such, the maximum punishment ofthe protfered specification should be6monthsconfinement,a
bad-conduct discharge, and forteitureof all pay and allowances, because the property at issue is
non-military property ofavalue of$500 or less.
^^^^^^^^^^^^.^^C^^^^^B^
The proffered Specification 13of Charge II is not closely related to any otfense listed in
Part IVof the Manual for CourtsMartial,nor is it directly analogous to an oflense under the
United States Code because the document at issue is owned by the Department ofState and not
the Department ofDefense or an intelligence organization.
Charge Sheet. Army Regulation
380-5 establishesacustom ofthe service penalizing disclosures of classified and sensitive
information, ifchargcd under Article 92,UCMJ.
Court'sRuIing on Lesser Included Of^nse
Maximum Punishments, dated 19 July 2012. Because the gravamen ofthe proftered
10

32903

specification isadisclosure of classified information to an unauthorized person or entity,the
maximum punishment of the proflered specification should be2yearsconfinement,a
dishonorable discharge, and torteiture ofall pay and allowances.
^^^^^^^^^^^^^C^^^^^^
The protfered Specificationl3ofCharge 11 is not closely related to any oflense listed in
Part IV ofthe Manual for CourtsMartial,nor is it directly analogous to an oftense under the
United States Code because the documents at issue are owned by the Department ofState and
not the Department ofDetense or an intelligence organization.
Charge Sheet. Army
Regulation 380-5 establishesacustom of the service penalizing disclosures of classified and
sensitive information, ifchargcd under Article 92,UCMJ.
Court'sRuIing on Lesser
Included Oftense Maximum Punishments, dated 19 July 2012. Because the gravamen ofthe
proftered specification isadisclosure of classified information to an unauthorized person or
entity,the maximum punishment ofthe prottered specification should be2yearsconfinement,a
dishonorable discharge, and torteitureof all pay and allowances.
^^^^^^^^^^^^^C^^^^^
The protfered Specification 15of Charge 11 is directly analogous to an otfense under the
United States Code; specifica11y,18U.S.C.^ 793(e). The elementsofthe protfered specification
and the tederal statute are essentially the same. ^^^^^^^^^i^^^^^^.^^.^^^^,70 M.J.39,43
(CAAF2011)(discussing^^^^^^^^i^^^^^.^^^^^^^,64MJ381(CAAF 2007)) Thus, the
maximum punishment ofthe proffered specification should remainlOyearsconfincment,a
dishonorable discharge, and torteiture ofall pay and allowances. The defense has essentially
removed two phrases from the original specification:(1)"relating to the national detense,"and
(2) "reason to believe such information could be used to the injury ofthe United States or to the
advantageof any toreign nation." ^^^Def Not.ofPlea,at2. However, under18U.S.C.^
793(e), the Govemment is not required to prove that the accused had reason to believe the
information "could be used to the injury ofthe United States" when the accused had
unauthorizedpossessionofany"document,writing,codebook, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model, instmment, appliance, or note relating to the
national detense." ^^^18U.S.C.^ 793(e). In other words, the "reason to believe" scienter
requirement onlv applies to intangible information relating to the national detense, not the
tangibleitems listed above^^^^^^^^^^^^^^.^^.^^^^^^^^, 2012 WL 4903319^
Oct. 16, 2012)("1mportantly,^ 793^e]diflercntiates between'tangible'NDI, described in the
'documents'c1ause('any document,...or note relating to the national detense'),and'intangible'
NDI,described in the'information'clause('intormation relating to the national detense').");
^^^^^^^^^^^.^^.^^.^^^,445 FSupp2d602,612 (E.DVa 2006) ("Second, Congress expanded
the category ofwhat could not be communicated pursuant to 793(d) and(e)to include
'information relating to the national defense,'but modified this additional item by addinga
scienter requirement....").

11

32904

Respectfully Submitted,

)DEAN MORROW
CPT, JA
Assistant Trial Counsel

I certify that I served or caused to be served a tme copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 16 November 2012.

)DEAN MORROW
CPT, JA
Assistant Trial Counsel

12

32905

UNITEDSTATESOF AMERICA
V.

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

Prosecution Notification
to the Court of
Its Position on a Conditional Plea
16 November 2012

1. On 23 October 2012, delense submitted its revised notice of pleas and fomm. During an
RCM 802 session detense requested the Court accept this plea yet still consider and mle on the
litigated speedy trial issues.
2. The Court has asked the United States to reply to this proposal. It has also requested the
Prosecution notily the Court ofits position onaconditional plea.
3. The United States does not supportaconditional plea. Further, it is the govemment'sposition
that while the RCM does not provide for the preservation of speedy trial issues for appellate
review through any mechanism outside ofthe conditional plea, the mles are silent on the Court's
ability to preserve these issues for its own consideration after acceptingaguilty plea. RCM
707(e)provides "except as provided in R.C.M.910(a)(2),aplea of guilty which results ina
finding of guilty waives any speedy trial issue as to that oflense." RCM910(a)(2)statesthat"an
accused may enteraconditional plea of guilty,reserving the right, on turther review or appeal, to
review ofthe adverse determination ofany specified pretrial motion." This is the only
mechanism the Rules provide to accompanyaguilty plea yet preserve issues for appeal. The
United States could find no mechanism either affirmatively permitting or explicitly prohibiting
the Court from preserving issues for its own consideration.
4. The United States recommends thataplea not be considered during the session scheduled for
speedy trial litigationfrom10-14December2012. Rather, the United States recommends the
plea be considered during the session scheduled for 14-18January2010.

ASHDEN FEIN
MAJ, JA
Trial Counsel

I certify that I served or caused to be served a tme copy of the above on Defense Counsel
via electronic mail, on 16 November 2012.

A&MDEN FEIN
MAJ, JA
Trial Counsel
APPELLATE EXHIBIT 34%
PAGE REFERENCED:
PAGE
OF
PAGES

32906

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE RESPONSE TO
PROSECUTION NOTIFICATION
TO THE COURT OF ITS
POSITION ON A CONDITIONAL
PLEA

MANNING, Bradley E., PFC

us. Anny. xj

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

DATED: 17 November 2012



RELIEF RE UESTED

1. The Defense requests the Court to preserve the litigated speedy trial motion issues currently
before the Court and still accept PFC Manning?s proffered pleas during the 10 to 14 December
Article 39(a) session.

EVIDENCE

2. The Defense does not request any witnesses or evidence for this motion.

FACTS AND ARGUMENT

3. The timing of the speedy trial motion argument has been delayed due to the need to obtain
responses to interrogatories from the trial counsel and from the original classi?cation authorities.
Due to required delay, the Court is in the position of accepting a plea of guilty from PFC
Manning prior to its ruling on the litigated speedy trial motions.? The Defense had previously
understood that the parties and Court agreed that due to the need to delay the speedy trial motion
arguments, the Court would still consider and rule on the litigated speedy trial issues even after
accepting a plea from PFC Manning.

4. During an R.C.M. 802 session on 7 November 2012, the Court indicated that it believed the
R.C.M. 707 issues would be waived by a plea of guilty. The Defense articulated that it believed
the parties and Court agreed to treat this issue similar to a conditional plea of guilty. After the

The Speedy Trial Motion was originally supposed to be completed during the 29 October through 2 November
Article 39(a) session.

APPELLATE EXHIBIT 3 ?1 1

PAGE
PAGE or

32907

R.C.M. 802 issue, the Defense discussed the issue with trial counsel. The Defense informed the
trial counsel that it believed that the speedy trial issues were only being preserved for the Court?s
consideration at that trial stage. The Defense was not arguing that the R.C.M. 707 issue should
be preserved for appellate review. The Defense agrees that a plea of guilty waives any R.C.M.
707 speedy trial issue on appellate review. See R.C.M. 707(e) (such a waiver would not apply to
an Article 10 motion). However, the R.C.M. 707(e) waiver should not be applied at the trial
stage when the issue is still before the Court and the parties have agreed that any plea should not
waive the issue for consideration by the Court. As such, even after an acceptance of a plea of
guilty, this Court should still consider and rule on the litigated speedy trial motion.

5. Should the Court detennine that it does not have the authority to preserve the R.C.M. 707
issue for its consideration after an accepted plea of guilty, the Defense would join the United
States in requesting that any plea be considered after the Court rules on the litigated speedy trial
motion. Given our current trial calendar, the Defense recommends that acceptance of a plea of
guilty by PFC Manning be moved to the 14 to 18 January 2013 session.

CONCLUSION

6. The Defense requests the Court to preserve any speedy trial issues currently before the Court
and accept PFC Manning?s proffered pleas during the 10 to 14 December Article 39(a) session.
If the Court does not believe it has the authority to preserve the R.C.M. 707 issue for its
consideration after an accepted plea of guilty, the Defense requests that the acceptance of PFC
Manning?s plea be moved to the 14 to 18 January 2013 session.

Respectfully submitted,



DAVID E. COOMBS
Civilian Defense Counsel

32908

UNITED STATESOF AMERICA

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

)
)
)
)
)
)
)
)
>

Prosecution Motion in Limine
to Exclude Motive Evidence

16 November 2012

RELIEF SOUGHT
The prosecution in the above case respectfially requests that this Court preclude the defense
fi-om raising evidence of motive in the merits portion of the trial. The Govemment seeks said
exclusion to increase the efficiency of the proceedings and to ensure only admissible evidence is
presented during the merits portion of the trial because motive evidence is irrelevant. See MRE
402.
BURDEN OF PERSUASION AND BURDEN OF PROOF
The burden of proof on any factual issue, the resolution of which is necessary to decide a
motion, shall be by preponderance of the evidence. RCM 905(c)(1). The burden of persuasion
on any factual issue, the resolution of which is necessary to decide a motion, shall be on the
moving party. RCM 905(c)(2). The prosecution has the burden of persuasion as the moving
party. However, the burden is on the proponent of evidence to establish its relevancy. United
States v. Simmons, 48 M.J. 193, 196 (C.A.A.F. 1998) (citing MRE 103).
FACTS
The Accused is charged with one specification of aiding the enemy, one specification of
disorders and neglects to the prejudice of good order and discipline and service discrediting,
eight specifications of violations of 18 U.S.C. § 793(e), five specifications of violations of 18
U.S.C. § 641, two specifications of violations of 18 U.S.C. § 1030(a)(1), and five specifications
of violating a lawfiil general regulation, in violation of Articles 104, 134, and 92, Uniform Code
ofMilitary Justice (UCMJ). See Charge Sheet.
WITNESSES/EVIDENCE
The prosecution requests the Court consider the charge sheet and the cited Appellate Exhibits
(AE).
LEGAL AUTHORITY AND ARGUMENT
I . THIS COURT SHOULD PRECLUDE THE DEFENSE FROM RAISING DURING
THE MERITS PORTION OF THE TRIAL ISSUES REGARDING THE MOTIVE OF
THE ACCUSED IN COMMITTING HIS CRIMES BECAUSE HIS MOTIVE IS
IRRELEVANT.

1

APPELLATE EXHIBIT 34^
PAGE REFERENCED; _
PAGE OF
PAGES

32909

The Accused's motive behind his misconduct is irrelevant to ati charged offenses and ati
cognizable defenses. There are circumstances where evidenceofmotive or purpose is relevant
circumstantial evidence, but that is not the case for the charges in ttie case at bar.Motive is
neither direct nor circumstantial evidence negating the requisite intent that the Accused
knowingly gave intelligence to the enemy in support of ChargeLSpecificationl;that the
Accused wrongfully and wantonly caused the information to be published on the intemet with
knowledge that it would be accessible to the enemy in support of Charge ILSpeciftcationl;that
the Accused's conduct was willftil in support of Charge U. Specifications 2,3,5,7,9, 10.11,12.
13.14. and 15; that the Accused knowingly and willfully stole, purloined, or convertedathing of
value to the United States in support of Charge ILSpeciftcations4, 6. 8. 12, andlb; orthe
Accused hadadutyto obey and violatedalawfttl general regulation in support of Charge IIL
See Charge SheeL
Throughout the pre-trial proceedings, the defense has raised motive to attempt to excuse the
Accused's misconducL particularly in regard to thel8U.S.C.^ 793 charges, by claiming that the
Accused acted withagood faith motive and did not intend to injure the United States or to give
an advantage toaforeign nation. For example, the defense would like to cati Adrian Lamo to
say that the Accused believed information "belongs in the public domain" and "should be free"
and zachary Antolak to testify that the Accused was concemed with the physical well being of
others. See AE 344 (Def Witness List) at 8-9. Such alleged motive, whether self-serving or
selfless, does not provide "authority foraself^help remedy of disobedience." UnitedStatesv.
New.55ML 95,108(CAAF 2001)(quotin^UnitedStatesvJohnson.45ML88.92
( C A A F 1996)
Military courts have long recognized that motive is only relevant to the extent it establishesa
recognized defense. UnitedStatesv.Huet-Vau^n.43M.J.105,114-15. The Supreme Court
emphasized ^The essence ofmilitary service is the subordination ofthe desires and interests of
ttie individual to the needs ofthe service.^^ United Statesv.Washin^on. 57 M.J.394. 397
( C A A F 2002)(citin^OrloffvWillou^bv,345 US 83. 92 (1953))
In Huet-Vau^:hn, for example, the Accused, an Army captain, refused to deployin support of
(deration Desert Shield. Huet-Vau^n.43M.J.atl07. The defense counsel asserted his client's
motive was not to avoid hazardous duty,but rather to expose what the Accused felt were
impending war crimes in the Persian Gulfand report those crimes to the public. Id^ Defense
counsel sought to introduce evidence challenging President George Bush's decision to deploy
soldiers to the Middle EasL Id. Additionally.the defense counsel sought to discuss the
Accused's contention that she wasaconscientious objector. Id. After hearing the case, C.A.A.F.
upheld the trial judge's decision that the Accused's "motives were irrelevant to the question
whether she quit her unit with intent to avoid hazardous duty or shirk important service."Id.at
113. Speciftcally.the Court found that "[tjo the extent that[the Accused] quit her unit asa
gesture of protesL her motive fbr protesting was irrelevanL"Id.atll4(citin^ United Statesv.
Jotinson,24M.J.101,106(C.M.A. 1987) (holding that saboteur's purpose and motive in
committing his crimes were immaterial in his criminal prosecution)).

32910

Courts recognize the difference between "motive" and "intenL" An accused may harbor two
ormore intentions for committingacertainacL HuetVau^n.43 M.J.atll3 14(citing Wayne
R.Lafave and AustinW.ScotL Jr..ISubstantive Criminal Law.^35(d)(1986)).These
"intentions may consist of an immediate intention (intent)and an ulterior one(motive)."Id.
Stated another way.intentionisadetermination to act inacertain way; motive is that which
incites and stimulates the formation ofthe intention. United Statesv.Diaz. Answer on Behalf of
theGovemmenL 2008 WL6170630.at*ll(citin^Clark^MarshalLATreatiseon ttie Law of
Crimesl63 (7th ed. 1967)). It is the intenL not the motive, that determines the criminality ofthe
acL Id. "[Sjo long as the[accused] has the intention required bythe definition ofthe crime, it is
immaterial that he may also have some other intention." HueLVaug^,43M.J.atll3-14(citing
Wayne R.LafiveandAustinW.Scott.Jr.,lSubstantiveCriminalLaw,^35(d)(1986)).
Similarly.in Diaz. C.A.A.F.determined that any noble motives the Accused may have had
when he released classified information about detainees at Guantanamo Bay were irrelevant to
issue ofwhether he intentionally violated the Espionage AcL United Statesv.Diaz. 69 M.J.127.
132(C.A.A.F.2010) ("The mens rea requirement contained in the^ 793(e)is clear; it does not
include an element ofbad faith or iti intent.").^ The critical language in^ 793(e)is that the
Accused had "reason to believe" the information"c^^/^^^^,^^^to the injury ofthe United States
or to the advantage ofany foreign nation." Id^atl32. The Accused madeaconscious choice to
communicate the covered information; therefore.willfully committed ttie misconducL See id. at
132; seealso United Sla1esvMcGuinness.35ML 149,153 ( C M A 1992)(holdin^that^
793(e)does not require proof ofadefendant's bad faith); United Statesv.Kiriakou. 2012 WL
4903319.at*5 (E.O.Va.0cLl6)(denying delense discovery requests ina^ 793 case that
would supportagood faith defense because "any claim that he acted withasalutary motive, or
that he acted withoutasubversivemotive.when he allegedly commmticatedNDI to joumalists is
notrelevant").
Accordingly.the trier of fact should not consider the factors that motivated the Accused to
commit his misconducL Regardless ofwhether the Accused was allegedly following the dictates
ofhis conscience, he committed the charged oflenses with the requisite intenL IntenL not motive
is what criminalizes or decriminalizes an acL Any other understanding ofthe law would allow
individuals to commitamultitude of crimes as long as they hadapure or legitimate motive.
Evidenceofmotive. therefore, is irrelevant during the case on the merits and should be reserved,
ifat ati. for matters to be presented in extenuation and mitigation at sentencing.
ILTHECOURTSHOULDMARE^ THE DETERMINATION ONW^HETHER ORNOT
TO PRECLUDE MOTIVE EVIDENCE IN ADVANCE OFTRIAL
The Court gains considerable advantages by determining in advance whether or not motive
evidence is irrelevant and inadmissible during the merits portion ofthe triaL The possibility of
irrelevant information being discussed is much more likely withoutapredetermination of
^ It should be noted tbat C.A.A.F.concluded tbat tbe military judge erred by denying Appellant tbe opportunityto
introduce motive evidence to defend again^tacbarge under Article 133,UCMJ. Dia^, 69 M.J.at 129. Specifically,
the Court found tbat evidence ofbonorable motive may informatactfinder's judgmental to wbetber conduct is
unbecoming an oflicer ^inceArticlcl33,UCM.I takes into account all circumstanced surrounding the conduct, sucb
as the concept ofhonor. Id. at 136. Obviously, those circumstanced do not exi^t in tbe case at bar.

32911

relevancy on these controversial issues. See.e.^..Huet-Vau^jin.43M.J.atl05(containin^
numerous examples of the Accused testifying to irrelevant matters.Trial Counsel objecting, and
the Judge sustaining the objections). Deftning these issues before trial would certainly be more
efficient by not only precluding discussion ofirrelevant evidence, which may confi^se the issues
for ttie trieroffacL but also by preventing the litigation of extraneous issues during an already
presumably lengthytriaL In addition,apredeterminationofrelevancy is more efficient in that it
avoids producing and calling irrelevant witnesses.
CONCLUSION
The prosecution respectfully requests the Court grant the prosecution's motion in limine and
preclude the defense ftom raising evidenceofmotive in the merits portion ofthe trial pursuant to
MRE 402 as the evidence is irrelevanL The Govemment seeks said exclusion to increase the
efficiency ofthe proceedings and to ensure only admissible evidence is presented during the
merits portion ofthe trial

^GELMOVERGAARD
CPT.JA
Assistant Trial Counsel
Icertify tbatlserved or caused to be servedatrue copy ofthe above on Defense Counsel via
electronic mail onl6November 2012.

ANGELMOVERGAARD
CPT,JA
AssistantTrial Counsel

32912

UNITED STATES OF AMERICA

)
)

V.

)

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

)
)
)
)
)
)

Prosecution Motion
for Reconsideration of
Court's Finding In
AppeUate Exhibit LXVIII
16 November 2012

RELIEF SOUGHT
COMES NOW the United States of America, by and through undersigned counsel, and
respectfiilly requests this Court reconsider its finding that the prosecution "disputed that it was
obligated to disclose classified Brady information that was material to punishment only." See
Appellate Exhibit (AE) LXVIII, at H 6; see also Brady v. Maryland. 373 U.S. 83, 87 (1973). The
prosecution requests that the Court reconsider its finding before the parties present speedy trial
arguments.

BURDEN OF PERSUASION AND BURDEN OF PROOF
The burden of proof on any factual issue the resolution of which is necessary to decide a
motion shall be by preponderance of the evidence. See Manual for Courts-Martial (MCM).
United States. Rule for Courts-Martial (RCM) 905(c)(1) (2012). The burden of persuasion on
any factual issue the resolution of which is necessary to decide a motion shall be on the moving
party. See RCM 905(c)(2).
FACTS
On 8 March 2012, the prosecution filed its Response to the Defense Motion to Compel
Discovery. See AE XVI. Therein, the prosecution stated, inter alia, that it intended to produce
discoverable information within the Federal Bureau of Investigation (FBI) files. The prosecution
specifically stated that "[bjased on the information being classified, the United States intend[ed]
to produce any information within the FBI's investigativefilesthat is discoverable under
Brady[.]" Id, at 8. The prosecution defined Brady to include "evidence that is favorable to an
accused and that is material either to guilt or punishment." Id, at 5.
During the Article 39(a) session on 15 March 2012, the prosecution confirmed its
position that "the Constitutionalrightsunder Brady always apply[,]" even when that information
is classified. See Unautbenticated Transcription of Article 39(a) Session dated 15 March 2012,
at 1 ;02;51-1 ;03:05 (stating that "Brady is never tmmped"). The Court then explicitiy asked the
prosecution "what is the Govemment's view of [] Brady?" Id, at 1;03; 15-24. The Government
responded that Brady includes, inter alia, "material that would tend to negate or minimize
sentencing, well punishment, so it applies to sentencing information." Id, at 1;04;02-14.

APPELLATE EXHIBIT ^'^^
PAGE REFERENCED:
PAGE OF
PAGES

32913

On 22 March 2012. the prosecution notified the Court that it had reviewed the classifted
Information ReviewTask Force damage assessment and that it found favorable material under
Brady. SeeAEXXXVLat7. The prosecution indicated that the favorable material related to
punishmenL The prosecution, citing Brady,statedthatti"[would] produce ati evidence
favorable to the accused that is material to guilt or to punishmenL" Id. On 23 March 2012. the
Court agreed that the "Government must disclose any favorable classifted informationfi-omthe
damage assessments that is material to punishmenL" Id.
On 12 April 2012. the prosecution filed its Response to the Defense Motion to Dismiss
All Charges with Prejudice. SeeAEXLIL Therein, the prosecution confirmed that it "shati
^/viB^^,^ produce Brady evidence." Id.at3.
On 25 April 2012,the Court found "that the Govermnent properlyunderstood its
obligation to search for exculpatory Bratiy materiaL however, the Govemment disputed that it
was obligated to disclose classified Brady information that was material to punishment only."
AELXVIILat^b
WITNESSES/EVIDENCE
The prosecution does not request anywitnesses or evidence be produced for this motion.
The prosecution requests that the Court consider the Appellate Exhibits and the Article 39(a)
transcripts referenced herein.
LEGALAUTHORITY AND ARGUMENT
At fhe request of any party,"the military judge may.prior to authentication ofthe record
of triaL reconsider any mling. other than one amounting toafinding of not guilty.made bythe
militaryjudge." RCM 905(f). The prosecution requests that the Court reconsider its finding that
the prosecution "disputed that it was obligated to disclose classifted Brady information that was
material to punishment only." AELXVIILat^6. Ttie record, both tiirough written ftlings and
oral argumenL does not support this finding. Instead, the prosecution has consistently
maintained that it shall always disclose classifted Brady^tnformation.whether material to guilt or
punishmenL
The prosecutionhasconsistentlymaintained that it "shall ^/^^y.^ produce Brady
eyidence."even if classified. AEXLlLat3;see also AEXVLat8(statin^ that it would produce
classified Bradymaterial in the FBIfiles); AEXXXVLat7(statin^ that it would produce
classifted Brady material in the IRTF damage assessment); UnauthenticatedTranscription of
Article 39(a) Session dated 15March2012.atl;02;511;03;05(statin^that"Bradyis never
trumped").
Ttie prosecution has consisfentiy defined Brady to include "evidence that is favorable to
an accused and that is material either to guilt or punishmenL" AEXVLat5;AEXXXVLat7;
see also UnauthenticatedTranscription of Article 39(a) Session datedl5March 2012,atl;04;0214(deftnin^ Brady to include,/^/^^^//^,"material that would tend to negate orminimize
sentencing,weti punishmenL so it applies to sentencing information").

32914

CONCLUSION
The prosecution respectftillyrequests that the Court reconsiderits finding that the
prosecution "disputed that it was obligated to disclose classifted Brady information that was
material to punishment only" because the record does not support this ftnding.

LHUNTER WHYTE
CPT.JA
AssistantTrial Counsel
Icertify tbatlserved or caused to be servedatrue copy ofthe above on Mr. David
Coombs, Civilian Defense Counsel via electronic maiL onl6November 2012.

^

LHUNTER WHYTE
CPT.JA
AssistantTrial Counsel

32915

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE RESPONSE TO
PROSECUTION MOTION
FOR RECONSIDERATION OF
THE FINDINGS IN
APPELLATE EXHIBIT

MANNING, Bradley E., PFC

Army:

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

DATED: I7 November 2012



RELIEF REQUESTED

1. The Defense requests the Court to deny the Govemment?s request for reconsideration as
being untimely.

EVIDENCE

2. The Defense does not request any witnesses or evidence for this motion.

FACTS AND ARGUMENT

3. The Defense opposes the Govemment?s request for reconsideration of the Court?s 25 April
2012 ?nding 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.? AE at Paragraph 6.

4. The Govemment?s request is untimely. The Court ruled on this issue 206 days ago. If the
Government believed that the Court?s ruling was in error, the Government had ample
opportunity in the ensuing months to request reconsideration. The Govemment?s silence in the
206 days following the Court?s ruling speaks volumes; it speaks to the Govemment?s
acknowledgement that the Government did not take issue with the Court?s factual finding. The
time to speak was long ago. The Court should not now permit the Government to rehash an
argument that was decided in the Defense?s favor seven months ago.

5. The Court?s factual ?nding was not an insignificant finding or a throwaway line in a ruling.
Rather, it was the issue the Court was asked to rule on so many months ago. The Defense has
since referenced this ruling on multiple occasions and in multiple different contexts. The

APPELLATE EXHIBIT 319

PAGE
PAGE OF PAGES



32916

Government cannot ignore the Court?s ruling until it feels like contesting it on the eve of a
dispositive motion.? The Govemment?s request for reconsideration of this ruling is being made
in bad faith if the Government genuinely believed the court to have erred, it would have spoken
many moons ago. The Government provides absolutely no explanation for why it is only now
raising the issue.

6. R.C.M. 905(f) must be interpreted to require timely and good faith requests for
reconsideration. Otherwise, the trial of an action could be delayed for months or years with last
minute requests for reconsideration. The court in United States v. Santiago, 56 M.J. 610 (N .M.
Ct. Crim. App. 2001) recognized that there are implicit time limits within which a party may
request reconsideration of ajudge?s ruling. In that case, the court stated that ?the Manual allows
a party to request reconsideration for a military judge?s ruling, but does not address the
timeliness of such a request.? Id. at 615. The court considered it ?appropriate to apply the time
limits to reconsideration Id. The court then found that the Govemment?s
motions for reconsideration were untimely because the trial counsel ?led them 53 days and 51
days after the military judge?s ruling.

7. As a practical matter, the Defense is not even sure when the Government purports to re-
litigate this issue. The speedy trial motion is currently scheduled for 10-14 December 2012.
Assuming that the Court rules that it will reconsider the ruling, the Defense would be permitted
(per the current scheduling process) two weeks to prepare its Response. The Government may
wish, in turn, to ?le a Reply, which would take another week. The Court would then need time
to read the ?lings. Then, the parties would have to litigate the issue. The Defense is not clear on
when the Government would have all of this to take place.

8. If the Court is inclined to grant the Govemment?s motion for reconsideration, the Defense
requests until 6 December 2012 to ?le its Response. The Defense acknowledges that this is
more than the usual 2-week suspense date. However, based on the Government ?ling date of 16
November 2012, two weeks would fall on 30 November 2012, right in the middle of the
upcoming Article 39(a) session.

CONCLUSION
9. The Defense requests the Court to deny the Government?s request for reconsideration as

being untimely.

Respectfully submitted,



DAVID E. COOMBS
Civilian Defense Counsel

The Court should also note that the Government engaged in the same tactics with respect to its motion for
reconsideration of the Department of State damage assessment ruling. There, the Government waited two months
before requesting reconsideration of the Court?s ruling.

32917

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE MOTION FOR
v. JUDICIAL NOTICE OF

DOS, ONCIX AND IRTF

MANNING, Bradley E., PFC DAMAGE ASSESSMENTS

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

DATED: 16 November 2012



RELIEF SOUGHT

l. PFC Bradley E. Manning, by and through counsel, moves this court, pursuant to Military
Rules of Evidence (MRE) 201, 801(d)(2), and 803(6) and 803(8) to take judicial notice of
damage assessments produced by Department of State (DOS), Of?ce of National
Counterintelligence Executive (ONCIX), and Information Review Task Force (IRTF).

BURDEN OF PERSUASION AND BURDEN OF PROOF

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

FACTS

3. PFC Manning is charged with ?ve speci?cations of violating a lawful general regulation, one
speci?cation of aiding the enemy, one speci?cation of disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight speci?cations of communicating
classi?ed infonnation, ?ve speci?cations of stealing or knowingly converting Government
property, and two speci?cations of knowingly exceeding authorized access to a Government
computer, in violation of Articles 92, 104, and 134, Uniform Code of Military Justice (UCMJ)
10 U.S.C. 892, 904, 934 (2010).

4. The original charges were preferred on 5 July 2010. Those charges were dismissed by the
convening authority on 18 March 2011. The current charges were preferred on 1 March 2011.
On 16 December through 22 December 201 1, these charges were investigated by an Article 32
Investigating Of?cer. The charges were referred to a general court-martial on 3 February 2012.

5. The DOS, ONCIX, and IRTF each produced a document assessing the effect of the leaks with
which PFC Manning is charged.

APPELLATE 7
PAGE
oi? PACIES

6. On 23 March 2012 this Court ruled that the damage assessments created by DOS and IRTF
contained information relevant to any pre-sentencing phase of this trial. Likewise, this Court
ruled that DOS, ONCIX, and IRTF are closely-aligned with the Government for purposes of
discovery. See Appellate Exhibit 36.

7. On 23 August 2012 this Court ruled that the ONCIX damage assessment contained material
that would be relevant during any pre-sentencing phase of PFC Marming?s trial. See Appellate
Exhibit 255

EVIDENCE

8. The Defense does not request any witnesses be produced for this motion. The Defense
respectfully requests this Court to consider the proffered damage assessments. If necessary, the
Defense requests the Government provide the Court with a copy of the proffered damage
assessments.

LEGAL AUTHORITY AND ARGUMENT

9. In the interest of judicial economy, MRE 201 relieves a proponent from formally proving
certain facts that reasonable persons would not dispute. There are two categories of adjudicative
facts that may be noticed under the rule. First, the military judge may take judicial notice of
adjudicative facts that are ?generally known universally, locally, or in the area pertinent to the
event.? MRE 201(b)(1). Under this category of adjudicative facts, it is not the military judge?s
knowledge or experience that is controlling. Instead, the test is whether the fact is generally
known by those that would have a reason to know the adjudicative fact. US. v. Brown, 33 M.J.
706, 709 (N .M.C.A 1992). The second category of adjudicative facts is those ?capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.? MRE 201(b)(2). This category of adjudicative facts includes government records,
business records, information in almanacs, scientific facts, and well documented reports. Id. See
also, US. v. Sparm, 24 M.J. 508 (A.F.C.M.R. 1987). Moreover, judicial notice may be taken of a
periodical. US. v. Needham_ 23 M.J. 383, 385 (C.M.A. 1983)(taking judicial notice of Drug
Enforcement Agency publication). The key requirement for judicial notice under this category is
that the source relied upon must be reliable.

10. Under MRE 201(d), a military judge must take judicial notice if the proponent presents the
necessary supporting information. In making the determination whether a fact is capable of
being judicially noticed, the military judge is not bound by the rules of evidence. 1 STEPHEN A.
SALTZBURG, LEE D. SCHINASI, AND DAVID A.SCHLUETER, MILITARY RULES OF
EVIDENCE MANUAL 201.02[3] (2003) Additionally, the information relied upon by the
party requesting judicial notice need not be otherwise admissible. Id. The determination of
whether a fact is capable of being judicially noticed is a preliminary question for the military
judge. See MRE 104(a).

11. This Court has already determined that the proffered damage assessments are relevant. See
Appellate Exhibits 36 and 255. Thus, the remaining inquiry is whether the statements qualify as
non-hearsay or, if not, does a hearsay exception exist for their admission. The damage

32919

assessments are admissible as non?hearsay under MRE or, in the alternative, as an
exception to the hearsay rule under RCM 803(6).

12. The damage assessments are admissible as a statement by a party opponent under MRE
MRE 802(d)(2)(D) establishes that statements by a party?s agent or servant are
admissible against that party as long as those statements fall within the agent?s or servant?s scope
of authority and are made while the agency or employment relationship continued. This Court
has ruled that ?it is possible for statements by executive branch of?cials to be admitted in a
criminal proceeding as admission of a party opponent.? See Appellate Exhibit 356 at 7, citing
US. v. 874 F.2d 634, 638 (9th Cir. 1989), US. v. Barile, 286 F.3d 749, 758 (4th Cir.
2002), and US. v. Warren, 42 .3d 647, 655 (D.C. Cir. 1994). This Court further ruled,
qualify for admission as statement against a party opponent, the statement must bear such a close
resemblance to in?court testimony that they may be considered its functional equivalent.? Id. at
8.

13. Here, the damage assessments are statements made by individuals that clearly qualify as a
party opponent. Indeed, this court ruled that DOS, ONCIX, and IRTF are each closely related to
the prosecution in this case. See Appellate Exhibit 36. Further, each organization was directly
affected by the leaks for which PFC Manning has been charged. Because each organization is
closely related to the prosecution in this case each is a party opponent.

14. Each of the damage assessments contains statements that hear such a close resemblance to
in?court testimony that they are functionally the same. Each damage assessment contains
assertions of fact that contradict the Government?s likely trial narrative that the disclosure of the
charged documents caused damage to the United States. The primary purpose of these
documents was to convey unambiguous, factual information to the highest levels of our
government. Presumably, the factual information included was con?rmed prior to the
assessments being ?nalized and distributed. In all likelihood, any witness called would testify in
a manner consistent with the assessments. As such, the damage assessments are reliable such
that they are the functional equivalent of in-court testimony. Because the damage assessments
were created by a party opponent and are the functional equivalent of in-court testimony they are
admissible under MRE

15. The damage assessments are also admissible as an exception to the hearsay rule under MRE
803(6). MRE 803(6) reads:

A memorandum, report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or data compilation,
all as shown by the testimony of the custodian or other quali?ed witness, or by
certi?cation that complies with Mil. R. Evid. 902(11) or any other statute
permitting certi?cation in a criminal proceeding in a court of the United States.

32920

Damage assessments are documents kept in the regular practice of business activity. AR 380-5,
para. 10-5(a) establishes:

When noti?ed of possible or actual compromise, the holder of the information or
material will ensure that the original classi?cation authority, responsible for each
item of the information, is noti?ed of the incident. The OCA will verify and
reevaluate the classi?cation of the information and will conduct a damage
assessment.

16. The damage assessments at issue fall squarely within this rule. Each assessment was created
pursuant to a regulatory mandate and is kept in the ordinary course of business. Likewise,
though called a ?damage assessment,? the assessments clearly fall within the meaning of
?memorandum, report, record, or data compilation in any form.? Further, the assessments were
created by individuals with knowledge shortly after the leaks for which PFC Manning has been
charged. Because the damage assessments were created as part of regularly-conducted business
they are admissible pursuant to MRE 803(6).

17. Likewise, the damage assessments are admissible under MRE 803(8), which provides a
hearsay exception for:

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

18. The damage assessments fall squarely within the meaning of MRE 803(8). v. ABC
Professional Tree Service, Inc., 832 F.Supp.2d 917 (M.D.Tenn 2011)(holding Department of
Labor press release fell within hearsay 803(8) exception), see also, Zeigler v. isher?Price, Inc.,
302 F.Supp.2d 999, 1021, n10 (N .D.Iowa 2004) (?To the extent the press release can be
construed as stating conclusions or opinions of the [Consumer Products Safety Commission], it
also was admissible?). DOS, ONCIX, and IRTF are each a public of?ce or agency and the
damage assessments are clearly a record, report, statement or data compilation. Further, the
damage assessments set forth the activities of the respective of?ce or agency because it is
common for an of?ce or agency to create a damage assessment in instances of unauthorized
disclosure. Likewise, the damage assessments outline the respective agencies factual ?ndings
and response to the leaks which gave rise to this trial. As such, the damage assessments are
reports of public of?ce that set forth the activities of the agency or of?ce and are, thus,
admissible under MRE 803(8).

32921

CONCLUSION

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

Respectfully Submitted



JO UA J. TOOMAN
CPT, JA
Defense Counsel

32922

UNITEDSTATESOF AMERICA

)

^

^
^

Manning, BradleyE.
PFC, U S A r m y ,
IIHC,U.S.ArmyGarrlson,
Joint Base Myer-Henderson HaU
Fortl^yer,Virginia 222II

)
)
)
^
^
)

Government Motion
toTake Judicial Notice
I6November2DI2

RELIEFSOUGHT
The United States in ttie above-captioned case requests tbis Cotfrt takejudicial notice ofthe
following adiudicative facts;
(1) Army Field Manual2-0 "Intelligence"
(2) Army Field Manual2-19.4"Brigade CombatTeam Intelligence Operations"
(3) /^rmyFieldManual2-22.2"Counterintelligence"
(4) Army Field Manual2-22.3 "Human Intelligence Collector Operations"
(5) Army Soldier'sManualandTrainer'sGuide"Soldier'sManualandTraitter'sGuide for
IntelligenceAnalysis.MOS35E,SkitiLevel 1/2/3/4"
(6) ExecutiveOrder 12958
(7) ExecutiveOrder 12972
(8) ExecutiveOrder 13142
(9) Executive Order 13292
(10) A10Eebmary2010BBC news report shows Julian Assange in Iceland.
(11) ANewYork Times article entitled "Pentagon Sees Threat ftom Online Muckrakers"
by Stephanie Strom, datedl8March 2010, relerences Lieutenant Colonel Lee Packnett.
(12) On7June 2010, the NewYorker published an article entitled "No Secrets; Julian
Assange'sMissionforTotalTransparency".
(13) Ttie Washington Post has published onlinealetterptn-portedlyft-om United States
Department ofState Legal Adviser Harold Koti. and dated 27 November 2010, which states
that ttie Oepartment ofState understood "ft-om conversations with representatives ftom 7^^^
/V^wTo^^ 7^^^.^. T^^(^^^^^^^^ and/^^^^^^^^/, that WikiLeaks also has provided
approximately 250.000 documents to each ofthem for publication, furthering the illegal
dissemination ofclassified documents".
(14) On 29 November 2010, the Armed Forces Press Service published an article stating
WikiLeaks released classifted information over the weekend of27-28 November 2010.
(15) United States Oepartment ofState lists "al-Qa'ida"asaforeign terrorist organization
asof8Novemberl999. It lists "alQaida in the Islamic Maghreb" as of27March2002. It
lists "al-Qaida in Iraq" as ofl70eeember 2004. It lists "al-Qa'ida in the Arabian
Peninsula" as ofl9Jattuary 2010.
(16) The United States EBlhas named AdamYahiye Gadahn asa"most wanted terrorist"
and states lie is associated with AlQaeda.
(17) Uttderatieader "deftning the ettemy."the United States Oepartment ofState has cited
terrorist networks as ttie greatest national security threaL It has also named AlQaeda and
cott^derated extremist groups as ttie greatest terrorist ttireaL

APPELLATEEX^^l^^^^
PAGEI^EFE^ENCEO:
[^^GE
^^^^^^^^^

32923

(18) United States Oepartment ofState Assistant Secretary in the Bureau ofPublic Affairs
recites that ttie Oepartment ofState has designated "al-Qa'ida in ttie Arabian Peninsula
(AQAP) asaEoreigoTerroristOrgani^tion" in January of2010.
(19) United States Oepartment ofState Undersecretary for Management Patrick Kermedy
testifted that "OOOmaterial was leakedittJulyof2010".
(20) "Inspire" isamaga^ine. It advocates violentjihad and promotes AlQaeda in ttie
Arabian Peninsula ideology.
(21) The Winter 2010issueof"Inspire" states that "anything useftil fromWikiLeaks" can
be archived and shared to "help the mLtjahidin".

BURDEN OFPERSUASION ANO BURDEN OFPROOF
The bm-den of proof on any factual issue the resolution of which is necessary to decidea
motion shati be by preponderance ofthe evidence. RCM 905(c)(1). Ttie burden of persuasion on
any actual issue the resolution of which is necessary to decideamotion shati be on tbe moving
party. RCM 905(c)(2). The United States has ttie burden ofpersuasion as the moving party.
FACTS
The accused is charged with giving intelligence to the enemy.in violation of Article 104,
Uttiform Code ofMilitary Justice (UCMJ). Ttie accused is also charged with eight speciftcations
allegingmisconductinviolationofl8USC^ 793(e).ftvespeciftcationsallegingmisconductitt
violationofl8USC^64Lfwospeciftcationsallegingmisconductin violation ofl8U.S.C.^
1030(a)(1), ftve speciftcations alleging misconduct in violation o f / ^ i c l e 92 of ttie UCMJ.and one
speciftcation alleging misconduct prejudicial to good order and discipline and service discrediting.
Charge SheeL
WITNESSES/EVIDENCE
The United States requests this Court considerthe referred charge sheet in support ofits
motion, as weti as Enclosuresl-20.
LEGALAUTHORITY ANO ARGUMENT
Military Rule ofEvidence (MRE) 201 govemsjudicial notice of adjudicative lacts. The
judicially noticed fact must be one not subject to reasonable dispute in that it is either(l)generally
known universally,locally.or in the area pertinent to the event or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned, ^ ^ . v .
/^^^^^^^, 23 M.J.383 (C.M.A. 1987); ( ^ ^ v ^ ^ o i ^ ^ , 3 3 M J 706(ACM.R. 1991) Additionally,
MRE 201 requires the military judge to take judicial notice of adjudicative facts if requested bya
party and supplied with ttie necessary information. Judicial notice is of adjudicative lacts. It is not
appropriate for inferencesaparty hopes the lactftnderwiti drawft;omttie fact(s)judicially noticed.
Legal arguments and conclusions are not adjudicative facts subject to judicial notice, ^ ^ . v .
^^^^^,^0^, 22 M.J.885 (A.F.C.M.R.1985)(appropriate to take judicial notice of ttie existence ofa
treatment program ataconftnement lacility but not appropriate to take judicial notice of the quality
oftiie program.).
Appellate Exhibit 288.
A. Army Publications

32924

Army Field Manual2-0(EM2-0) entitled "Intelligence" outlines the role ofintelligence and
the process associated with planning, collecting, disseminating, and evaluating iLThe Manual also
describes staff^ support. Army intelligence capabilities, and intelligence support to land operations.
Einally.it addresses force projection operations. 1^^^ Enclosurel.
The existence ofEM2-0, dated Augttst 2012, isafact not subject to reasonable dispute. The
Manual states that it is "approved for public release" and "distribution is uttiimited."The fact tbat it
exists is generally known and capable ofaccurate and ready determination by resort to the Army
Publishing Oirectorate,asource whose acctfracy cannot be reasonably questioned.
Army Field Manual2-19.4(EM2-19.4) entitled "Brigade CombatTeam Intelligence
Operations" addresses theftindamentalsofbrigadeintelligence, intelligence processing, and
intelligence organisations.
Enclosure 2.
Ttie existence ofEM2-19.4. dated 25 November 2008.isafact not subject to reasonable
dispute. This ^ct is generally known and capable ofaccurate and ready determination by resort to
ttie Army Publishing Oirectorate.asource whose accuracy cannot be reasonably questioned.
Army Field Manual2-22.2(EM2-22.2) entitled "Counterintelligence" provides an overview
ofcotmterintelligence mission, structure, and organisation. The Manual addresses;
counterintelligence reporting, collection, operations, and investigation. It outlines analysis, tools,
and procedures associated with counterintelligence. Manttal2-22.2 discusses cyber
counterintelligence as weti as technical cotmterintelligence services and support. ^^^Enclosure3.
Ttie existence ofFM2-22.2.dated October 2009.isalact not subject to reasonable dispute.
This ^ct is generally known and capable of accurate and ready determination by resort to ttie/^rmy
Publishing Oirectorate,asotfrce whose accuracy cannot be reasonably questioned.
Army Field Manual2-22.3(EM2-22.3) entitled "Human Intelligence Collector Operations"
overviews human intelligence support, planning, and managemenLTtie Manual outlines collection
procedttres generally and in military source operations. Finally,it describes analysis and tools
associated with human intelligence. ^^^Enclosttre4.
Ttie existence ofFM2-22.3,dated September 2006. isaf^ct not subject to reasonable
dispute. This lact is generally known and capable of accurate and ready determination by resort to
the Army Publishing Oirectorate.asource whose accuracy carmot be reasonably questioned.
TheArmySoldier'sManualandTrainer'sGuide entitled"Soldier'sManualandTrainer's
Guideforthe Intelligence AnalysL^OS35E.SkitiLevel 1/2/3/4" (STP34 35F14SMTG)isa
guideforsoldiersservingasintelligenceanalystsandtheirtrainers Inadditiontooutliningduty
positions and critical tasks, the Guide addresses; intelligence preparation, analysis, reconnaissance,
and targeting by MOS skiti leveL ^^^Enclostfre5.
TbeexistettceofSTP3435E14SMTG.datedMarcti2012,isafactttotsubjectto
reasonable dispute. Tliis ^ct is generally known and capableof accurate and ready determination
byresorttottieArmyPublistiittgOirectorate.asourcewhoseaccuracycannotbereasonably
questioned.

32925

B. ExecutiveOrders
ExecutiveOrder 12958 addresses classifted national security information by prescribinga
uniform system for classifying, safeguarding, and declassifying national security information. The
order discusses; original and derivative classiftcation procedures, declassiftcation and downgrading
ofclassifted materiaL safeguarding classifted materiaL and implementation and administration of
ttie Order itself i^^^Enclosttre6.
Executive Order 12958 revoked Executive Order 12356, dated6April 1982. This f^ct is
generally known and capable ofacctirate and ready determination by resort to the National
Archives.asource whose accuracy carmot be reasonably questioned. It is accessible via their
websiteathttp;//wwwgpogoy/fdsys/pkg/FR 1995 04 20/pdf^95 9941 pdf
The existence ofExecutive Order 12958,datedI7April 1995,isalact not subject to
reasonable dispute. This ^ct is generally known and capable ofaccurate and ready determination
by resort to ttie National Arctiives.asource whose accuracy cannot be reasonably questioned. Itis
accessible via their website at tittp;//www.gpo.goy/fdsys/pkg/ER-1995-04-20/pdf^95-9941.pdf
Executive Order 12958.datedl7April 1995,entered into effectl80 daysft-omits signing.
This ^ct is generally known and capable of accurate and ready determination by resort to ttie
National Arctiives.asource whose accuracy cannot be reasonably questioned. It is accessible via
tiieirwebsiteathttp;//www.gpogov/fdsys/pkg/FR 1995 04 20/pdf^95 9941 pdf
Executive Order 12972 provides clarifteddeftnitions for "agency" and "military
department." ^^^Enclosure7.
Executive Order 12972 amends Executive Order 12958,datedl7April 1995.This lact is
generally known and capable ofaccurate and ready determination by resort to ttie National
Archives.asource whose accuracy cannot be reasonably questioned. It is accessible via their
websiteathttp;//wwwgpogov/f;isys/pkg/ER 1995-09-21/pdI/95 23581.pdf
Ttie existence ofExecutive Order 12972, datedl8September 1995, isa^ct not subject to
reasonable dispute. Ttie fact is generally known and capable ofaccurate and ready determination
by resort to ttie National Arctiives.asource whose accuracy cannot be reasonably questioned. Itis
accessible via their website at tittp://www.gpo.goy/fdsys/pkg/ER-1995-09-21/pdf^95-2358I.pdf.
Executive Order 13142 extends and establishes specific dates for the time within which ati
classifted information, contained in records more than 25 years old that have been determined to
have historical value under title 44 ofthe United States Code, is declassifted.lt also establishes the
Infonnation Security Oversight Offtce within tlie National Arctiives and Records Administration.
Enclosure 8.
Executive Order 13142 amends Executive Order 12958. datedI7 April 1995.This lact is
generally known and capable ofacctirate and ready determination by resort to ttie National
Arctiives.asource whose accuracy cannot be reasonably questioned. It is accessible via their
websiteattittp;//www.gpo.gov/f;lsys/pkg/ER 1999 11 23/pdI/99 30687.pdf

32926

The existence ofExecutive Order 13142, dated 19Novemberl999,isafact is generally
known and capable of accurate and ready determination by resort to the National Arctiives,asource
whose accuracy cannot be reasonably questioned. It is accessible at
bttp://wwwgpogov/fdsys/pkg/ER 1999 11 23/pdf^99 30687pdf
ExecutiveOrder 13292 addresses classifted national sectfrity information by prescribinga
tmiform system for classifying, safeguarding, and declassifying national security information. The
order discusses original and derivative classiftcation procedures. ^^^Enclosure9.
Executive Order 13292 amended Executive Order 12958, datedl7Aprill995.This ^ct is
generally known and capable ofacctirate and ready determination by resort to the National
Arctiives.asource whose acctiracy cannot be reasonably questioned. It is accessible via their
websiteathttp;//www.gpogov/f;isys/pkg/ER2003-03-28/pdf^037736.pdf
The existence ofExecutive Order 13292, dated 25 March 2003.isaf^ct not subject to
reasonable dispute. This lact is generally known and capable ofacctirate and ready determination
by resort to ttie National Arctiives,asource whose accuracy cannot be reasonably questioned. Itis
accessible via theirwebsite at http;//www.gpo.gov/fdsys/pkg/ER-2003-03-28/pdf^03-7736.pdf
ExecutiveOrder 13292. dated25March2003,becameeffective 28 March2003.This fact
is generally known and capable ofaccurate and ready determination by resort to the National
Archives,asource whose accuracy cannot be reasonably questioned. It is accessible via their
websiteathttp;//www.gpogov/fdsys/pkg/ER 2003 03 28/pdf^03 7736.pdf
C. News Reports
On 12Eebruary 2010, the British Broadcasting Company (BBC) published ottiineavideo
report entitled "Iceland's Jotnnalism Freedom Oream Prompted by Wikileaks." This video shows
Julian Assange in Iceland. The lact that such report exists as described is generally known and
capable of accurate and ready determination by resort to the BBC,asource whose accuracy cannot
be reasonably questioned. It is accessible via their website at
tittp;//news.bbc.co.uk/2/hi/technology/85I0927.stm. Enclosure 10.
The NewYork Times published online an article by Stephanie Strom entitled "Peotagott
SeesaTtireatft^om Online Muckrakers." It appeared in print on page A18ofttie NewYork edition
onMarchl8,2010. This article re^rences Lieutenant Colonel Lee PacknetL The fact that such
article exists as described is generally known and capable ofaccurate and ready determination by
resort to the NewYork Times,asource whose accuracy cannot be reasonably questioned. Itis
accessible via their website at http;//www.nytimes.com/2010/03/I8/us/18wiki.htmL i^^^Enclostire
IL
On7June 2010, The NewYorker published an article by reporter at large Raffi
Ktiatctiadourian entitled "No Secrets; JuliattAssange'sMissionforTotalTrattsparency."Tbel^ct
tbat sucii article exists is generally known and capable of accurate and ready determination by resort
to ttie NewYorker.asource whose acctfracy cannot be reasonably questioned. It is accessible via
theirwebsiteattittp;//yvww.new^orker.cotti/reportitig/2010/06/07/100607Ia :lact kliatchadottriati.lt
has also been previously marked fortiie purpose ofthis court-martial as ManningB 00523772MannittgB0052379L^^^Enclosurel2.

32927

The Washington Post has published onlinealetter purportedlyft-omUnited States
Oepartment ofState Legal Adviser Harold Koh to Jennifer Robinson, attomey for Julian Assange,
dated 27 November 2010. This letter states "It is our understanding from conversations with
representativesft-omT^^/^^i^)^^^T^/^^.^, 7^^ G^^^^^^^ and .O^^i^^^^^/, that WikiL^^
provided approximately 250.000 documents to each ofthem forpublication,fttrttierittg the illegal
dissemination ofclassified documents." The f^ct that such Washington Post published letter exists
as described is generally known and capable ofaccurate and ready determination by resort to ttie
Washington PosLasource whose accuracy cannot reasonably be questioned. It is accessible via
theirwebsiteat
http;//media.washingtonposLcom/wpsrv/politics/doctunents/Oept of^State Assange letter.pdf
Enclosure 13.
On 29 November 2010, ttie Armed Forces Press Service published on ttie Oepartment of
Defense website an article entitled "ClintomWikiLeaks'Release Attacks Intemational
Commtmity."Ttie article is dated 29 November 2010and was written by Jim Garamone and Lisa
OanieL This article states that "Ttie WikiLeaks release of classifted State Oepartment documents
[occurred] over the weekend" of27-28 November, 2010. The fact that such article exists as
described is generally known and capable of accurate and ready determination by (tie resort to ttie
Oepartment ofOefense. Itis accessible via their website at
tittp;//www.defense.gov/news/newsarticle.aspx?id^61876. ^^^Enclostfrel4.
O. Government Statements
The United States Oepartment ofState lists "al-Qa'ida" asaforeign terrorist organization as
of8Novemberl999.1tlists"alQaidain ttie Islamic Maghreb" asof27Marcti2002.Itlists "alQaida in Iraq" as ofl70ecember 2004. It lists "al-Qa'ida in the Arabian Peninsula" as o f l 9
January 2010. This f^ct is generally known and capable ofaccurate and ready determination by
resort to the Oepartment ofState'sBureauofCotmterterrorism.asource whose accuracy cannot
reasonably be questioned. It is accessible via their website at
http;//www.state.goy/j/ct/rls/ottier/des/123085.htm. ^^^Enclosurel5.
The Federal Bureau oflnvestigation (FBI) names AdamYatiiyeGadatin,bomlSeptember
1978 in the United States, asa"most wanted terrorist." The FBI states that AdamYahiya Gadahn
was "indicted in ttie Central Oistrict ofCalifomia for treason and material support to AlQaeda." It
ftuTher states that "the charges are related to Gadahn's alleged involvement inanumber of terrorist
activities, including providing aid and comfort to AlQaeda and services for AlQaeda." The^ct
that this listing exists as described is generally known and capable ofaccurate and ready
determination by resort to the FBI Most WantedTerrorisLasource whose accuracy carmot
reasonably be questioned. It is accessible via their website at
tittp;//www.fbi.gov/wattted/wattted terrorists/adam-yahiye-gadatitt. ^^^Eoclosttrel^.
Ttie United States Oepartment ofState has stated, underthe heading "deftning ttie enemy",
that "terrorist networks currently pose the greatest national security threat to the United States." It
also states "the greatest threat and those most wanted for terrorism come from ttie al-Qaida(AQ)
network, which ittcludesacore al-Qaida organisation and numerous con^derated extremist
groups." This existence ofthis statement is generally known and capable ofaccurate and ready
determination by resort to tlie Oepartment ofState'sBureauofCotmterterrorism,asource whose

32928

accuracy cannot reasonably be questioned. It is accessible via their website at
http;//www.state.gov/j/ct/enemy/index.titm. i^^^Enclosurel7.
As Assistance Secretary in the Bureau ofPublic Affairs, PhilipJ.Crowley madeapress
statement on 19 January 2010. He stated "[tjhe Secretary ofState has designated al-Qa'ida in ttie
Arabian Pettinsula(AQAP)asaEoreigttTerrorist Organization". Ttie fact that Philip Crowley
made this statement is generally known and capable of accurate and ready determination by resort
to the Oepartment ofState Bureau ofPublic Affairs,asource whose acctfracy cannot reasonably be
questioned. It is accessible via their website at
bttp;//v^^ww.state.gov/r/pa/prs/ps/2010/01/135364.titm.^^^ Enclosure 18.
PatrickE.Kemiedy. Undersecretary for Management at the United States Oepartment of
State testifted onIOMarch2011before the Senate Committee on Homeland Sectfrity and
Govemmental Affairs. He stated that "when 0 0 0 material was leaked in July 2010, we worked
with OoO to identily any alleged State Oepartment material that was in WikiLeaks'possession."
The fact that Undersecretary Ketmedy made this statement is generally known and capable of
accurate and ready determination by resort to the Oepartment ofState Undersecretary for
Management Offtce,asource whose accuracy cannot reasonably be questioned. It is accessible via
tbeir website attittp;//www.state.gov/m/rls/remarks/2011/158400.1ttm.^^^EttclostfreI9.
E. Publications
"Inspire" isamaga^ine. It advocates violentjitiad and promotes the ideology of AlQa'idati
Al-Jihad in the Arabian Peninsula. Ttie fact that this magazine exists as described is generally
known and capable of accurate and ready determination by resort to the magazine itself
Enclosure 20.
The Winter 2010issueof"Inspire" states that "anything usefiilft-omWikileaks" can be
archived and shared to "help the mtijatiidin." Ttie existence ofthis statement is generally known
and capable ofaccurate and ready determination by resort to ttie magaz:ine itself.
CONCLUSION
For the reasons stated above, the United States requests the Court takejudicial notice ofthe
existence and the content ofthe above-mentioned portions ofthe Army Regulations, ttie Executive
Order, the Federal Statutes, and ttie Joint Resolution, as they meet ati the requirements ofMRE 201.

ASHOENFEIN
MAJ.JA
Trial Cotmsel

32929

Icertify tbatlserved or caused to be servedatme copy ofthe above on Oefense Counsel via
electronic maiL onI6November 2012.

ASHDENFEIN
MAJ.JA
TrialCounscl

I8Ettcls
1. /^rmyFieldManual2-0"Intelligence"
2. Army Field Manual2-19.4"Brigade CombatTeam Intelligence Operations"
3. Army Field Mattual2-22.2 "Counterintelligence"
4. Army Field Manual2-22.3 "Human Intelligence Collector Operations"
5. Army Soldier'sManualandTrainer'sGuide"Soldier'sManualandTrainer'sGuide for
lntelligence/^alysis,MOS35E,SkitiLevel 1/2/3/4"
6. ExecutiveOrder 12958
7. Executive Order 12972
8. ExecutiveOrder 13142
9. ExecutiveOrder 13292
10. February 2010BBC Report; See video aLtittp;//news.bbccouk/2/tii/tectinology/8510927.stm
IL"Petttagon Sees Threatft-omOnline Muckrakers"
12. "No Secrets; Julian Assange'sMissionforTotalTransparency"
13. Ptfrported Letterft-omLegal Adviser Harold Koh
14. "Clinton; WikiLeaks'Release Attacks Intemational Commtmity"
15.Oepartment ofState List ofEoreignTerroristOrganiz:atiotis
16. FBI Most WantedTerrorist Listing
I7.0epartmentofStateTerrorist Designation
18. Uttited States Oepartment ofState Assistance Secretary in the Bureau ofPublic Affairs Ptiiti
Crowley Press Statement
19. Uttited States Oepartment ofState Undersecretary for Management Patrick KennedyTestimony
20. Winter20I0issueof"Inspire" Magazine

32930

Appellate Exhibit 398
Enclosures 1-20
have been entered into
the record as a CD/DVD
and will be maintained
with the original
Record of Trial

32931

UNITED STATES OF A M E R I C A
V.

Manning, BradleyE.
PFC, U S Army,
HHC, U.S. Army Garrison,
JolntBaseMyerHendersonHaU
FortMyer, Virginia 22211

Prosecution Request
for Leave until 19 November 2012
to File Government Interrogatories

I6November2012

1. The United States requests leave of the Court untti COB 19November 2012 to file the Govemment
Response to Defense Interrogatories. The current deadline fbr the Government Response to Defense
Intenogatoriesis16November2012. See AE 385.
2. The United States is in the process of completing their response to the over 450 questions asked by the
defense, but requests the weekend to completeathorough response to which the United States can swear.
The Uttited States has been working constantly since the defense's filing to provide an acctn-ate and
thorough response and had planned on completing the answers by COB today. However, based on the
total ntnnberofquestions and the classified supplement that witi have to accompany the documenL the
United States requires more time to answer the questions and haveasecurity review of the answers.
3. This request witi not necessitateadelay in the proceedings and, therefore, there will be no prejudice to
thedefense.

ASHDEN IN
MAJ,JA
TrialCounscl
Icertily tbatlserved or caused to be servedatme copy of the above on Mr.David Coombs, Civilian
Defense Counsel via electrottic maiL on16November 2012.

ASHDEN FEI
MAJ, JA
Trial Counsel

APPELLATE EXHIBIT i l l
PAGE REFERENCED:
PAGE
OF

32932

INTHE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITEDSTATES

V

)
)
)
)
)
)

DEEENSERESPONSETO
PROSECUTIONREQUESTEOR
LEAVE UNTIL 19 NOVEMBER
2012TOFILEGOVERNMENT
INTERROGATORIES

^

MANNING.BradleyE.PFC

)

U.S.Anny. (b) (6)

)

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

)
)
)

OATEO; 17November2012

1. At 2345 the day its filing was due, the Govemmeni asked the Court for three extra days to file
its response. It is clear that at 2345. the Court was not going to rule on the request for leave prior
to midnight (the deadline for ftling). It is also clear that the Court was not likely to mle on the
issue over the weekend. In effecL the Government arrogated foitselfthe extra time it wanted to
ftle its response to the interrogatories. It is particularly ironic that the Government cannot keep
toaCourtimposed deadline in respect ofamotion pertaining to reasonable diligence.
2. At some point prior tol5minutes to midnighL the Government knew that it would not be
able to meet the deadline. In lacL the Government is three days away apparently ftom being able
to meet its deadline. Why did the Govemment not ask the Court//^^^^^^.^ ago for an
extension? Why did it wait untti literally minutes before the deadline before "requesting"
additional time?
3. Ttie Oefense requests that the Court consider the situation that the Government has
deliberately placed the Court in. Ifttie Court does not retroactively grant the Government's
"request" for an extra three days, then what? Can the Govemment undue its actions and ftle its
motion onl6November? Ofcourse noL What choice does the Court have but to grant the
Govemment the extra time it requested.
4. The Govemment blames the extension on the voluminous number ofinterrogatoriesftled by
the Oefense. The GovernmenL however, does not explain why at 15minutes to midnight the day
ofaftling.it just realized that the interrogatories were voluminous. More importantly.the vast
majority ofthe questions concem what the Government knew when; this information does not
requireavast amount oftimeto track down. Indeed, ifeacti ofthe prosecutors in this case
answered approximately4questions per day in ttieir"constant" work on these interrogatories,
the Government would have met the Court'sdeadline.
5. The Govemment'srequest for an extension represents another instance ofalack of due
diligence. Ifthe Govemment needed extra time, ttie Govemment should have informed ttie

^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^

^ A G E ^ ^ ^ ^ ^ ^

32933

Courtinatimelymanner^not 15 minutes prior to the Court'sdeadline. The Oefense requests
that the Court consider this an untimely ftling and consider the untimely ftling as part ofthe
Govemment'slack of diligence for ArticlelOpurposes.
Respectfully submitted.

OAVIOECOOMBS
Civilian Oefense Counsel

32934

UNITED STATES OF AMERICA

Prosecution Reply
to Defense Response to Prosecution
Request for Leave until 19 Nov 19
to File Government lnterrogatories

VG

Manning, Bradley E.

PFC, U.S. Anny,

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



19 November 2012

l. (U) On l6 November 20l2, the United States requested leave of the Court until l9 November
20l 2 to ?le the Govemment Response to Defense interrogatories (hereinafter ?lnterrogatory
Response?). The deadline for the lnterrogatory Response was I 6 November 2012. On l7
November 2012, the defense ?led a response to the United States? request for leave in which the
defense questioned the timing of the United States? request for leave.

2. (U) As the United States stated in its request, the United States had planned on completing the
lnterrogatory Response by I6 November 20] 2. At approximately 2000 hours, the undersigned
identi?ed a potential spillage issue based on the defense's questions. Over the past three weeks,
di?erem members of the prosecution prepared portions of the interrogatories and it was not until
the undersigned started reviewing the ?nal draft that the undersigned identified the potential

spillage.

APPELLATE EXHIBIT ?iv!

mar; or PAGES

32935

6. (U) This request will not necessitate a delay in the proceedings; therefore, there will be no
prejudice to the defense.



(yd,

ASHDEN FEIN
MAJ, JA
Trial Counsel

(U) I certify that I sewed or caused to be served a mic copy of the above on Mr. Cassius
Hall, Defense Security Expert, via SIPRNET, on 19 November 20l2.





ASHDEN FEIN
MAJ, JA
Trial Counsel



32936

Appellate Exhibit 402
2 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

32937

UNITED STATESOF AMERICA
Prosecution Response
to Defense Witness List
Manning, BradleyE.
PFCUSArmy,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

16November2012

The prosecution has reviewed the Oefense Witness List for Merits and Sentencing, dated
I50ctober 2012 Pursuantto Rule forCourtsMartial (RCM) 703 andRCMlOOl(e). the
prosecution makes the following determinations regarding these defense requested witnesses;
Merits;
1. The prosecution witi produce CPT Barclay Keay.
2. The prosecufion witi produce CPT Steven Lim.
3. The prosecution will produce CPT Casey Fulton.
4. Ttie prosecution will produce CPT Thomas Cherepko.
5. Ttie prosecution witi produce CW2 Joshua Ehresman.
6. The prosecution witi produce WOlKyle Balonek.
7. The prosecution witi produce SFC Paul Adkins.
8. The prosecution witi produce SGT Oavid Sadtler.
9. The prosecution witi produce SGT LorenaCooley.
10. Ttie prosecution witi produce SGT SheriWalsti.
11. Ttie prosecution witi produce SGT Chad Madaras.
12. The prosecution witi not produce Mr. Cassius HalL Mr.Hatiwasappointedadefense
expert consultant in security matters. Ifthe defense requires an "intelligence analyst expert
witness,"the defense is required to follow the proceduresofRCM 703(d) to request an expert.
13. The prosecution will produce Ms. Jihrleah Showman.
14. Ttie prosecution witi not produce Colonel (Retired) Morris Oavis for the merits portion
ofthe triaL His testimony is not relevant and necessary onamatter in issue on the merits.
RCM 703(b)(1)
APPELLATEEXHIBIT^^
PAGEREEERENCEO;
PAGE
OE
PAGE^

32938

15. Ttie prosecution will produce Mr. Jason Milliman.
16. The prosecution witi produce Mr.TrentStmttmann.
17. The prosecution witi produce Mr. Adrian Lamo.
18. The prosecution witi not produce Mr. zachary Antolak. His testimony is not relevant
and necessary onamatter in issue on the merits.
RCM 703(b)(1).
19. Ttie prosecution witi not produce Mr. Charles GanieL Mr. Ganiei was appointeda
defense expert consultant in security matters. If the defense requiresa"security expert witness,"
the defense is required to follow the procedures ofRCM 703(d) to request an expert.
20. The prosecution witi not produce ProfessorYochai Benkler for the merits portion ofthe
triaL His testimony is not relevant and necessary onamatter in issue on the merits. ^^^RCM
703(b)(1)
21. The prosecution will not produce Mr. Daniel Cindricti for the merits portion ofthe triaL
His testimony is not relevant and necessary onamatter in issue on the merits. ^^^RCM
703(b)(1)
Sentencing;
22 The prosecution will produce COLOavidMiller.
23 Ttie prosecution witi produce CAPT David Moulton
24 The prosecution will produce LTC Brian Kems.
25 The prosecution will produce MAJ Elijah Oreher.
26 The prosecution will produce MAJ Clifford Clausen
27 The prosecution will produce CPT Matthew Freeburg.
28 The prosecution will produce CPT Michael Johnson.
29 The prosecution will produce CPT Barclay Keay.
30 The prosecufion will produce CPTMiehaelWorsley
3L The prosecution will produce CPT Elizabeth Fields
32 The prosecution witi produce ILTTanyaGaab.

32939

33. The prosecution will produce CW2 Joshua Ehresman.
34. The prosecution witi produce WOlKyle Balonek.
35. The prosecution witi produce SFC Paul Adkins.
36. The prosecution witi produce SGT Lawrence MitchelL
37. Ttie prosecution witi produce SGT Rebecca Schwab.
38. The prosecution witi produce SGT Chad Madaras.
39. The prosecution will produce SGT Daniel PadgetL
40. The prosecution will produce SGT LorenaCooley.
41. The prosecution witi produce SGT SheriWalsh.
42. The prosecution witi not produce AMB Peter Galbraith. ^^^RCMlOOl(e).
43. The prosecution will produce Ms. Jihrleah Showman.
44. The prosecution witi not produce Ms. Lillian Smith. Ms. Smith was appointed an expert
consultant in information assurance. Ifthe defense requires an expert witness in "information
assurance practices."the defense is required to follow the procedtires ofRCM 703(d) to request
an expert.
45. The prosecution will not produce COL Dick Larry. ^^^RCMlOOl(e).
46. The prosecution will produce Ms.OebraVan Alstyne.
Ttie prosecution has reviewed the Oefense Witness List fbr Sentencing iuEvent ofa
SentencingOnlyCase, dated 12Noyember 2012 Pursuantto RCM 703 andRCMlOOl(e), the
prosecution makes the following determinations regarding these delense requested witnesses;
1. The prosecution witi produce CPT Steven Lim.
2. The prosecution will produce CPT Casey Fulton.
3. The prosecution will produce CPT Thomas Cherepko.
4. The prosecution witi produce SGT Oavid Sadtler.
5. Ttie prosecution witi not produce Mr. Cassius HalL Mr.Hatiwasappointedadefense
expert consultant in security matters. Ifthe defense requires an "intelligence analyst expert
witness."the delense is required to follow the procedures ofRCM 703(d) to request an expert.

32940

6. The prosecution witi not produce Colonel (Retired) Morris Oavis. ^^^RCMlOOl(e).
7. Ttie prosecution witi produce Mr.Jason Milliman.
8. The prosecution will produce Mr.Adrian Lamo.
9. The prosecution witi not produce Mr.^acharyAntolak. ^^^RCMlOOl(e).
10. The prosecution witi not produce Mr. Charles GanieL Mr. Ganiei was appointeda
defense expert consultant in security matters. If the delense requiresa"security expert witness,"
the defense is required to follow the procedures ofRCM 703(d) to request an expert.
11. The prosecution witi not produce Prof^ssorYochai Benkler. ^^^RCMlOOl(e).
12. The prosecution witi not produce Mr. OanielCindrich. ^^^RCMlOOl(e).
The production disputes the accuracy ofthe proft^red testimony for numerous witnesses.
The defense should not interpret the production ofawitness as the prosecution agreeing that the
witness would testify substantially in accordance with the witness's profler.
The defense also should not interpret production ofarequested "expert witness" as ttie
prosecution agreeing that the requested witness is qualified to testily^ as an expert.

ANGELMOVERGAARD
CPT.JA
Assistant Trial Counsel
Icertify tbatlserved or caused to be servedatrue copy ofthe above on Mr. Oavid
Coombs. Civilian Defense Counsel via electronic maiL on16November 2012.

ANGELMOVERGAARD
CPT.JA
AssistantTrial Counsel

32941

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE NOTICE REGARDING
POTENTIAL FOR MOTION TO
COMPEL BASED UPON

THE RESPONSES TO
INTERROGATORIES

MANNING, Bradley E., PFC

us. Army.

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

DATED: I7 November 2012



l. The Defense would like to alert the Court to the possibility of a potential renewal of its
Motion to Compel Witnesses upon receipt of the OCA and Govemment?s responses to the
Defense?s interrogatories. Based on the litigation to date, the Defense believes that many of the
answers will be evasive, perfunctory and non-responsive. If this is the case. the Defense intends
to renew its Motion to Compel witnesses for the speedy trial motion.

2. Under the current schedule, the Government will not ?le the OCA responses to
interrogatories until 5 December 2012. Additionally, due to the request for leave and the
practical realities of the Court not having an opportunity to rule on the request, it will not file its
own responses to the interrogatories until l9 November 2012. Upon review of the responses, the
Defense may renew its Motion to Compel Witnesses for the speedy trial motion. Since the
speedy trial motion is scheduled to be litigated from 10 to 14 December 2012, this may present
scheduling con?icts.

3. The Defense requests that the parties discuss the way forward at the next Article 39(a) session
if the interrogatory responses are evasive, perfunctory or non-responsive.

Respectfully submitted,



DAVID E. COOMBS
Civilian Defense Counsel


..

OF 5

32942

UNITEDSTATESOF AMERICA

Manning, BradleyE.
PFCU.S.Army,
HHC,U.S.ArmyGarrist^n,
Joint Base Myer-Henderson Hati
Fort Myer, Virginia22211

Court Order
for Mental Health Professionals
DATE: 19 November 2012

TO: Dr.Jonatban Richardson
1. Asti:ieMilitary Judge presiding overthe above-captioned General CourtMartiaLIhave
detennined, pursuant to Article 46. Uniform Code ofMilitary Jtistice(10U.S.C.^ 846), that you
have information which is required to provide in the above referenced case.
2. lhave previously directed you to respond to ati questions asked by the prosecution in United
Statesv.PFC Manning regardingthe behavior, mental health, and suicidal ideations ofPFC
BRADLEYMANNING(SSN:445-98 9504)tiiatyouobseryedand/ortreatedfromIJune20I0
to29July20I0 TheCourt'sOrderalsoextendstoyourespondingtoallquestionsaskedbyti^e
defense counseL
3. You will comply with this Court Orderno later than21 November 2(H2.
4. Should the requirements ofthis Court Order not be complied with, you may be ordered to
appear before the court to show cause as to why the Court'sOrder has not been carried ouL
Willful refusal to produce duly subpoenaed evidence fbracotn-t-martial may be prosecuted asa
crimeagainstthe United States(Article47,Unifi^rm CodeofMilitary Justice(I0U.S.C.^ 847)).
So ordered this 19^^ day ofNovember 2012in chambers.

Denise Lind
ColoneL U.S.Army
ChiefJudge, 1st Judicial Circuit

APPELLATEEXHIBIT^^^
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OE
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Unmarked redactions were present when Army received this document.

Redactions are in accordance with (b)(1)(B).
32943

UNITED STATESOF AMERICA
v.
Manning, BradleyE.
PEC, U S Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hati
FortMyer, Virginia 22211

Prosecution Responses
to Defense Interrogatories
Eor
SpeedyTrial
19 November 2012

(U) On behalf of each member of the prosecution team, including those assigned to the
prosecution prior to this case being transfened to the United States Army Military District of
Washington.LAshden Fein, hereby declare and state.the below ANSWERS to the defense
intenogatories:
Original Classification Authorities: Charged Documents
1.
Did you believeaclassiftcation review of charged documents was mandatory to have
priorto an Article 32 hearings Ifyes. why7
ANSWER: (U) The prosecution is not aware of any legal requirement thata
classiftcation review ofthe charged documents be completed befbre the Article 32
investigation. However, because the classiftcation ofthe charged documents is an
element ofthe majority of speciftcations and ati parties needed to understand how to
properly handle the information, the prosecution found it necessary to put fbrth evidence
conftrming the classiftcation ofthe documents both at the time ofthe offense and at
present time. Thus, the prosecution requested this information from the competent
authorities. Additionally.after recommendations from the Department of Justice and
Code 30. OTJAG. US Navy.including the Code 30 Primer on Prosecuting, Defending,
and Adjudicating Cases Involving Classifted Infbrmation. the prosecution understood the
importance ofconftrming the classiftcation ofinformation prior to starting an Article 32.
2.
On21 April 2011.you "researched conducting Article 32 investigation without
classiftcation reviews." On April 28 2011. you "Finalized research on classiftcation reviews for
Article 32". Why did your research make you conclude that the classiftcation review was
necessary^
ANSWER: (U)Onlyacompetent authority could confirm the classiftcation of the
charged documents, both at the time ofthe offense and at presenL so that proper storage
and handling could occur. Thus, the classiftcation review process was necessary based
on the charges facing the accused. Additionally.based on the advice described above,
the prosecution concludedaclassiftcation review was necessary.

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32944

3.
How did you use each OCA classification review at the Article 32 hearings Please be
speciftc.
ANSWER: (U) The prosecution used each OCA classiftcation review of charged
documents to prove the element ofthe particular speciftcations that the charged
documents were classifted at the time ofthe offense. Additionally.the OCA
classiftcation reviews provided ati parties, including the Article 32 investigating offtcer
and his security officer, the requisite infbrmation to properly store and handle the
information in accordance with AR 380-5.
4.
Were there other ways that you could have accomplished the same thing without the
classiftcation reviews
ANSWER: (U)Onlyacompetent authority could confirm the classiftcation ofthe
charged documents, both at the time ofthe offense and at presenL The classiftcation
review process is the process by which the competent authority confirms the
classiftcation ofinformation. Whether the prosecution soughtawritten declaration or the
testimony of the competent authority.the classiftcation review process was still necessary
and would not have been shortened.
5.
When did youftrstcommunicate with each ofthe OCAs about conductingaclassiftcation
review in thiscase'^ Please list each OCA and date separately.

6.
When did youftrstrequest that each OCA completeaclassiftcation review'^ Please list
each OCA and date separately.

32945

7.
How did you communicate with the OCA when youftrstrequested that the OCA
completeaclassiftcation reviews Ifawritten communication, pleaseprovide the documentation.
ANSWER: (U) Ati communications with each organization occurred through emaif
telephone conversations, and in-person meetings. Once initial contact was established,
the majority ofmeetingsoccuned in-person based on the classifted nature ofthe
information. For the organizations within DoO, the prosecution requested assistance
from OTJAGto funnelrequeststoCENTCOM.JTFGTMO.andlNSCOM The
prosecution formally requested, in writing, that the OCAs completeaclassiftcation. Any
fbllow-uprequests.were conducted in-person. using the telephone, and by emaiL and
either directly with the organization's representative or through OTJAG. Ati
documentation, if any.that the prosecution has authority to provide or witi reference
during the motions hearing has been provided to the defense.
8.
WhaL ifanything. did you communicate about the timing ofthe classiftcation reviews If
awritten communication, please provide the documentation.
ANSWER: (U) The prosecution explained to each organization the importance both ofa
thorough and accurate classiftcation review and of receivingaresponse as soon as
possible because of speedy triaL The formal requests gaveasuspense for approximately
two weeks and explained that the infonnation was needed for an Article 32 investigation.
Ati documentation, if any,that the prosecution has authority to provide or witi reference
during the motions hearing has been provided to the defense.
9.
What is your understanding ofwhen each OCA began the classiftcation review process7
Please list each OCA and date separately.
ANSWER: (U) It is the prosecution'sunderstanding that each organization began their
classiftcation review process afier approving the use oftheir organization's compromised
documents prior to the prosecution's documented request in March 2011. The request in
March 2011,was intended to createarecord ofthe ongoing requests.
10.

How many documents did you ask each OCA to review7

32946

11.
Onl8March 2011,you sent memoranda to each of the OCAs and requested that they
"ftnalize" their reviews. Does this mean that the OCAs had already been asked to complete the
reviews and should have been in the process of"ftnatizing" the reviews^ Please explain this
StatemenL
ANSWER: (U)Beforel8March 2011,the prosecution had informally requested that
each organization conductaclassiftcation review of charged documents along with other
pieces of critical evidence that was identifted at the time.
12.
Ifl8March2011was theftrsttime you requested the OCAs to completeaclassiftcation
review, why did you use the word "ftnalize" in each ofthe memoranda^
ANSWER: (U)Notapplicable
13.
What is your understanding ofwhat each ofthe OCAs had done in the ten months prior
to you submitting thel8March2011memorandum7
ANSWER: (U) Although the Iraq prosecution originally identifted some potentially
classifted infbrmation to serve asabasis of the original charges,the United States,
including law enfbrcemenLvictim organizations, and the command, did not understand
or know the extent ofthe accused's criminal misconduct untti early Winter of2010.
Many organizations started the process ofconducting classiftcation reviews ofthe
originally identifted information in the summer of2010. but the majority ofthe
classiftcation reviews did not start untti late Fati of2010. During this time, the
prosecution understood the organizations were conducting normal operations.while
attempting to mitigate the ongoing effects ofthe WikiLeaks rolling releases of classifted
infonnation later detennined to be compromised by the accused.
14.
IfI8March2011was the ftrst time you requested the OCAs to completeaclassiftcation
review.why did you wait almostayear before submitting the requests
ANSWER: (U)Notappticable
15.
Your chronology shows that you had draft memoranda forthe OCAs in August 2010.
Why did you wait untti7months later to submit these requests?
ANSWER: (U) The Iraq and MDW prosecution worked together to initially drafta
classiftcation review request for the Department ofState on 20 August 2010. The
prosecution did not submit this request because at the time there were no public releases

32947

ofthe purported Department ofState information, and law enforcement was stiti
ftnalizing their computer forensic review of the accused'smany different information
systems to determine which purported Oepartment ofState infonnation was stiti
identifiable on the accused's media.
16.
Ifl8March2011was the ftrst time you requested the OCAs to completeaclassiftcation
review.why was the Convening Authority already excluding time based on "OCA review of
classifted evidence"^
ANSWER: (U)Notapplicable
For thel8March2011memoranda. you includedasuspenseof31March2011for each
17
0CA7
ANSWER: (U)ThatisconecL
I^.

How did you select the31March2011suspense date?
ANSWER: (U) The prosecution selected the31March2011suspense date in light of the
accused'sright toaspeedy triaL Afier many months ofin-person and telephonic
meetings with the organizations, the prosecution determined thatashort suspense would
assist the organization representatives in completing the prosecution's requesL The
prosecution was also aware thaL although we set suspenses, the suspenses were actually
requests for completion dates because the prosecution or its command did not have
tasking authority over any organization.

19.

Why was the suspense date so short7
ANSWER: (U) After many months ofinperson and telephonic meetings with the
organizations, the prosecution determined thatashort suspense would assist the
organization representatives in completing the prosecution's requesL

20.

Did they meet this suspense date7
ANSWER: (U) No

21.
If not(and it appears not), did you follow-up and ask why they did not meet the suspense
date'^ What was the answer you were given. Please provide documentation.

32948

22.
In the OCA requests, you specifically reference the accused'sright toaspeedy trial and
indicate that if the OCA does not complete his task inatimely manner, this could severely hinder
theprosecution. What did you mean by this7
ANSWER: (U) The prosecution referenced the accused'sright toaspeedy trial to
convey the urgency ofthe requesL The prosecution requested that the OCAs complete
the task inatimely manner because ofthe accused'sright toaspeedy trial and the
potentialoflitigatingthis issue during speedy trial litigation. The prosecution felt it was
important fbr ati organizations involved in this court-martial to understand the unique
speedy trial laws within the Armed Forces, especially considering many organizations did
not belong to DoD.
23.
Ina60ctober2011memorandum to Central Command, you ask that they review some
additional documents and state that that "any delay by your command to comply with this ftrm
deadline [31October2011]may severely jeopardize the prosecution." What did you mean by
this7
ANSWER; (U) The prosecution requested that CENTCOM complete the task inatimely
manner because ofthe accused'sright toaspeedy trial and the potentialoflitigatingthis
issue during speedy trial litigation.
24.

Did Central Command meet this suspense date fbr the additional documents7
ANSWER: (U)Yes.

25.
You sent several further requests to the OCAs asking them to completeaclassiftcation
review. Please provide ati the dates that you sent further requests.
ANSWER: (U)28July201L4August201L7September201L6October201L13
October 2011,andl80ctober 2011.
26.
Other than the date at the top of the memo and the suspense date.were these requests any
different from the originall8March request? Ifso,how?
ANSWER: (U)Yes. The subsequent requests includedaparagraph explaining the
accused'sright toaspeedy triaL They were duplicative because they were the formal
update requests that accompanied the numerous in-person and/or telephonic
conversations about completing the classiftcation reviews.
27.

IfnoLwhy did you keep sending duplicative requests7
ANSWER: (U)Notappticable

28.
Each ofthe further memoranda had short suspense dates that the OCAs did not meeL
Did you follow-up with the OCAs when the suspense dates had passed7

32949

ANSWER: (U)Yes.
2^.

If so. what did the communication entail7 Please provide documentation.
ANSWER; (U) The in-person ortelephonic communications consisted ofupdates to the
request fbr classiftcation reviews. Ati documentation, ifany.thatthe prosecution has
authority to provide or witi reference during the motions hearing has been provided to the
defense.

30^

Did you ever communicate with the OCA personally7 (i.e.nottheOCAs'delegates)
ANSWER: (U) No

31.
Did you ask for updates on where the OCAs were in the process of completing the
classiftcation review7 If so.how and when did you ask7 Ifin written form(e.g. emaiL letter,
memo), please provide documentation.
ANSWER: (U)Seeabove ^28 29.
32.
Did you ever ask you how much longer the process would take? Ifso.how and when did
youask7 Ifin written form(e.g. emaiL letter, memo), please provide documentation.
ANSWER: (U) The prosecutionftequentlyrequested updates on the classiftcation
review process.whichincludedabrief description ofhow much longer the process was
expected to take. Ati documentation, if any.that the prosecution has authority to provide
or witi reference during the motions hearing has been provided to the defense.
33.
Did you ever ask you what specifically was taking so long7 Ifso. how and when did you
ask7 Ifin written fbrm(e.g.emaiL letter, memo), please provide documentation.
ANSWER: (U) The prosecution frequently requested updates on the classiftcation
review process.whichincludedabrief description ofwhat steps were being taken. Ati
documentation, if any.that the prosecution has authority to provide or witi reference
during the motions hearing has been provided to the defense.
34.
Did you ask how many people were working on the classiftcation reyiew7 If so. how and
when did you ask7 If in written fbnn(e.g. emaiL letter, memo), please provide documentation.
ANSWER: (U) The prosecution does not specifically remember asking this question.
35.
Did you ask how much time you were devoting to the classiftcation review process? If
so. how and when did you ask? Ifin written form(e.g. emaiL letter, memo), please provide
documentation.
ANSWER: (U) The prosecution does not speciftcally remember asking this question.

32950

36.
List any other communications you had with respect to the classiftcation reviews ofthe
charged documents with each ofthe OCAs and/or his delegates. Please list agency.date, and
substance of communication.
ANSWER: (U)Seeabove^6,lL2L25,26,29,31 33
37.
When did you receive each completed classiftcation review from each OCA'^ When did
you disclose these reviews to the Oefense7 List each OCA and date separately.along with when
you received the review and when you disclosed it to the Defense.

3^,
On3May 2011,there isatime entry that reads "Phone cati with CENTCOM who asked
fornew classiftcation review discs because the original copies did not work in CENTCOM
classifted computers." Does this refer to thel8May2011request for classiftcation reviews If
noL what does it refer to7 When were the disks provided to CENTC0M7
ANSWER: (U) This request referenced thel8March2011requestfbraclassiftcation
review. Based on the number offtles and size ofdocuments,the prosecution attempted
to electronically send the infbrmation to CENTCOM via SIPRNET,but could not
successfully upload the infbrmation. Then the prosecution sent classifted discs to
CENTCOM with the classifted documents and videos forthe classiftcation review and
the ftrst set were received on or aboutl5 April 2011. The ftrst set ofdiscs did not work
ontheCENTCOM SIPRNET machines CENTCOM establishedaSharePointportalfor
the prosecution to upload thefilesthrough SIPRNETand theftleswere uploaded on or
about6May2011.
39.
Onl6March201Lftiere is the followingtime entry, "16MarllWed Emati with
CENTCOM prosecution received unclass class review Apache video." When you did request
that CENTCOM review the Apache videos When did you disclose this review to the Defense'^
ANSWER: (U) The Iraq prosecution ftrst began discussing the classiftcation review of
the Apache video with OTJAGon 28 July 20l0and it was processed based on that
requesL The MDW prosecution was notified ofthe results ofthe Apache classiftcation
review onl80ctober 2010. The version ofthe classiftcation review the prosecution
reviewed in October 2010was marked classifted, although the video was not classifted.
OnlMarch 2011,the SCMCA considered this when preferring additional charges, and
chose not to charge the accused with compromisingaclassifted video in Speciftcation2
of ChargelL The prosecution started working with OTJAGand CENTCOM to

32951

declassify the classiftcation review. This classiftcation (BATES^00419522) was
delivered to the prosecution on 13 April 2012.
40.
In light ofthe answer above, please explain the fbllowing time entry."18-Oct-10Mon
Emati with CENTCOM prosecution received original classiftcation review fbr Apache video."
ANSWER: (U) The prosecution was notifted ofthe results ofthe Apache classiftcation
review onl80ctober 2010.
41.
Did you provide any ofthe OCAs with sample declarations to use7 Please list which
ones.
ANSWER: (U)Yes. The prosecution providedasample declaration to ati the
organizations that conducted classiftcation reviews fbr the charged documents as
enclosure4and5to the requests datedl8March2011and any subsequent requests.
42.
If noL please explain the following statement in your 30 November 2010classiftcation
review request fbr the Deputy Chief ofStaff fbr Intelligence (Pentagon)."The prosecution team
requests each OCA ortheir subject matter expert on classifted information use the enclosed
sample declaration to answer the above questions."
ANSWER: (U)Notapplicable
43.
The suspense date on this memorandum waslJanuary2010[20117]. Did the Deputy
Chief ofStaff fbr Intelligence (Pentagon)meet this suspense date7 If noLwhen did they provide
the classiftcation review7 When was that review provided to the Defense7
ANSWER: (U)No. The prosecution received the originally requested CENTCOM
classiftcation review on or about 22 Febmary 2011. but this was for the original
infbrmation identifted by the Iraq prosecution. Theftnalclassiftcation review forthe
CENTCOM information charged onlMarch 2011.was received on210ctober 2011.
and disclosed to the defense on8Noyember2011starting at BATES^00376879,and the
SOUTHCOM classiftcation review fbr charged infonnation was received on4November
201Landdisclosedtothedefenseonl8Noyember2011startingatBATES^00378646
ComnuterEorensics and Original Classification Authorities
(7^c/^.^.^//^^^C7D/^^^^/
44.

When was the unclassifted CID/CCIU ftle completed, or substantially completed7
ANSWER: (U) The unclassifted CID/CCIU investigative ftle has not beenftnalizedas it
is an ongoing investigation. CID/CCIU continues to investigate the accused's
misconduct and cunent releases by WikiLeaks. CCIU completed 22 separate ftnal
computer fbrensic reports^3unclassifted reports ofNlPRNETsystems(dated 15
September 2010. 20 September 2010.and 27 July 2011),lunclassifted report ofa

32952

SIPRNETsystem(dated 22 September 2011).lunclassifted report of digital media
(dated 22 September 2011), and17ftnal classifted reports(dated 22 September 2011and
20 October 2011). Befbre the ftnal fbrensic reports, CCIU produced, in generaLlO
waves of interim reports. Although the dates on the reports vary.the approximate dates
of the release ofthe forensic reports are the fbllowing:7July 2010, 13 July2010,6
August2010,23August2010,21 January 2011.2Febmary201L7June201L28June
2011.18July 2011.and 22 September 2011. Ati the ftnal reports and interim reports
have been provided to the defense.
45.
Did you require authority to disclose the unclassifted CID/CCIU ftle to the Defense7 If
yes. explain.
ANSWER: (U)Yes. When the prosecution leamed that the unclassifted CID
investigative ftle may contain unclassifted but protected infbrmation and classifted
infbrmation. the appropriate organizations reviewed the documents fbr any required
approvals. For the unclassifted but protected information, the Department ofJustice
reviewed the ftle fbr grand jury information and information that was obtained by sealed
search warrants. Additionally.the prosecution requested that the Army G2 offtce review
the unclassifted CID ftle and identify any potentially classifted material contained within
the originally designated unclassifted ftle. Because the ftle contained multiple swom
statements and AIRs of intelligence operators, it was suspected that some ofthe
documents might contain classifted information. The Army G2 offtce identifted two
major equity holders ofclassified information. Then, the prosecution requested that those
two equity holders review the relevant portion ofthe unclassifted CID file for classifted
information originating ftom their respective organization. Both organizations
discovered classifted information originating ftom their organization in the unclassifted
CID ftle. The prosecution requested authority to disclose that information to the defense
and to have those documents properly marked fbr classifted materiaL
46.

Ifyes. explain when you got each ofthe relevant approvals7
ANSWER: (U) While stiti in Iraq, the prosecution disclosed more than 200 pages, in
BATES ^: 00000001 00000429. which wasreproducedto the defenseon22 October
2010. Approvals to disclose the unclassifted but protected information and classifted
information ftom the CID/CCIU investigativeftlewas obtained onarolling basis in order
to disclose as much information to the defense as soon as possible. After reviews for
classifted information and unclassifted but protected information, the prosecution
received approvals to disclose the infbrmation on16June 2011,but only after the defense
signed SPCMCA issued protective orders. On 22 June 2011. the prosecution emailed the
defense team two protective orders fbr the Secretary ofthe Army 156material and law
enfbrcement sensitive and other protected information. Onl2July2011andbasedon
having received the signed acknowledgments ftom the primary defense counsel and legal
administrator fbr the Secretary of the Army 156materiaL the prosecution sent this
unclassifted butprotected infonnation to thedefense(BATES^: 00013162 00020152).
By 19 July 2011. the prosecution received the primary defense counsel and legal
administrator'ssigned acknowledgments for the unclassifted but protected law
10

32953

enforcement sensitive information, and delivered the ftrst batch ofthe approved CID
investigativeftleson 25 July 2011, including more than 3,000 pages. Additional
disclosures include but are not limited to the fbllowing;
00000179 00000376^22 October 2010; 00000402 00000411 ^22 October 2010;
00021364 00025526^25 July 201l;00026079 00026082^25 July 2011;00263560036617^25 July 2011;0026618 0036786^2August2011;00045302 00045581 ^12
October 2011;00045581 00046073^20October2011;00375198 00375724^8
November 2011;00378219 00378623^17Noyember2011;00407991 00408088^6
December 2011;00409781 00410553^8December2011;00410635 00416049^8
December 2011;00410671 00410689^12 December 2011;00410690 00410692^19
December 2011;00410705 00410760^13 January 2012; 00410789 00410870^20
January 2012; 00410875 00410875^27 January 2012; 00410997 00411277^27
January 2012; 00411371 00411375^14March2012;00411377 00411380^14March
2012;00412426 00412429^14March2012;00412538 00412545^14March2012;
00419521 00419521 ^13April2012;00419647 00419660^13Aprti2012; 00447380
00447380^15April2012; 00447870 00447917^25 May 2012; 00449432-00449432^
5July 2012; 00449565 00449571 ^12July 2012; 00449572 00449581 ^13 July 2012;
00504461 00504464^2August2012;00505084 00505183^3August2012; 00505185
00505200^3August2012;and 00505253 00505256^3August2012.
Ati organizations approved disclosure ofclassifted infbrmation identifted in the original
unclassifted CID case ftle on or aboutl7September2011and provided the prosecution
properly marked, fbr classifted infbrmation, documents on 27 October 2011. The
prosecution disclosed ati these documents byl7November 2011. As CID obtains
additional infbrmation, the prosecution continues to review the material and disclose
under applicable rules.
47.

When was the unclassifted CID/CCIU ftle produced to the Defense7
ANSWER: (U)Seeaboye^44 46

48.
With the exception ofacouple of documents in the unclassifted CIO ftle. ati the reports
were prepared in December 2010or earlier. Why were these documents not disclosed untti 25
July 20117
ANSWER: (U)Seeabove ^44 46
C/^.^,^//^^^C//^BCC/(7/^^^^/
49.

When was the classifted CID/CCIU ftle completed, or substantially completed?
ANSWER: (U) The classifted CID/CCIU investigative ftle has not beenftnalizedas it is
an ongoing investigation. lO/CClUcontinuesto investigate the accused'smisconduct
and cunent releases by WikiLeaks. CCIU completed 22 separateftnalcomputer forensic
reports^3unclassifted reports ofNlPRNETsystems(dated 15September2010.20

32954

September 2010. and 27 July 2011).1unclassifted report ofaS1PRNETsystem(dated 22
September 2011),1unclassifted report of digital media(dated 22 September 2011). and
17ftnal classifted reports(dated 22 September 2011and 20 October 2011). Befbre the
ftnal fbrensic reports. CCIU produced, in generaLlOwavesofinterim reports. Although
the dates on the reports vary.the approximate dates of the release of the forensic reports
arethefollowing:7July2010.13July2010.6August2010.23August2010.21January
201L2February201L7June 2011.28June201L18July201Land22 September
2011. Ati the ftnal reports and interim reports have been provided to the defense.
50.
On 12 March 2011. your Chronology indicates that you "emailed [] CCIU to request
CCIU to review ati classifted information in the caseftleto determine which OCAs are in the
ftle."WhatsortofreportdidCC1Uhaveasofl2March20117
ANSWER: (U) The prosecution requested that CID conduct an administrative review of
ati previously identifted classifted information in the caseftleto identify what equity
holders may have classifted information in the case ftle. The case ftle consisted ofthe
investigative ftle. both classifted and unclassifted, and the fbrensic reports referenced
above in ^44 and 49. The purpose ofthat request was to detennine the most efficient
method to receive approval ftom the OCAs to disclose the CID documents that contained
their classifted information. At that time the prosecution decided the more efftcient
process would be fbr the prosecution to receive approval to disclose the underlying
evidence to the defense and ensure the OCAs provided approval to disclose any
derivative reports based on the evidence, so the prosecution would not have to provide
the ftnal classifted reports to the organizations fbr approval in the future.
51.
On7April 2011,your Chronology indicates "Thu Meeting-review CCIU caseftleat
CCIU".WhatsortofreportdidCCIUhaveasof7Aprti20117
ANSWER: (U) The caseftleconsisted ofthe investigative ftle. both classifted and
unclassifted. and the forensic reports referenced above.
52.

What are the dates on each ofthe fbrensic reports compiled by C1D/CC1U7
ANSWER: (U)Seeabove^44and49

53.

How many ofthe fbrensic reports were classifted and how many were unclassifted7
ANSWER: (U)Seeaboye^44and 49

54.

Which OCAs needed to reviewtheclassifted CID/CCIU ftle7
ANSWER; (U) No OCA needed to review the classifted forensic reports because in the
prosecution's disclosure requests, the prosecution requested authority to disclose
"derivative use ofthe classifted information originating ftom the evidence listed [in the
request] and contained in fbrensic reports, general law enfbrcement reports, and other
compiled documentation within law enfbrcement and prosecution caseftles."The
12

32955

purpose ofthis was to make one disclosure approval request and not have to request
disclosure ofevidence and then send the forensic and law enfbrcement documentation to
the OCAs fbr subsequent approvals. The CIO investigative case ftle contained some
classifted documentation belonging to certain organizations that was obtained during
meetings the agents attended, e.g. PowerPoint slides, memoranda, and reports. The
prosecution submitted these individually to each relevant organization for approval to
disclose.
55.

When did youask each OCA to reviewtheclassifted CID/CCIU ftle7
ANSWER: (U)OCAsdidnotreviewtheclassifted CID/CCIU ftle. exceptforlessthan
lOdocuments which were located in the investigative ftle. not fbrensicftles.and
requested in March 2011. Seeaboye^54. OCAs later reviewed the unclassifted
CID/CCIU investigative ftle as part ofaseparate request when it was noted that possibly
classifted infbrmation was commingled with the unclassifted CID/CCIU investigative

ftle.
56.

What were they asked to do?
ANSWER: (U) They were asked to approve disclosure to the defense ofthe less thanlO
documents.

57.

When did each OCA begin the reviewtheclassifted CID/CCIU ftle7
ANSWER: (U)Tothe best of the prosecution'sknowledge. upon receipL

58

When did each OCA completethereyiewoftheclassiftedC10/CClUftle7
ANSWER: (U) Upon granting approval to disclose.

59.
When did each OCA consent to disclosure ofthe classifted CID/CCIU ftle to the
Defense7
ANSWER; (U) The authority to disclose the fbrensic reports was directly tied to the
approval to disclose the underlying evidence. Although the prosecution received rolling
approvals based on its rolling requests, the prosecution did not receive ftnal approval
ftom ati the relevant equity holders untti 28 October 2011. The classifted forensic reports
were produced after CID/CCIU analyzed approximately8terabytes of digital media
containing classifted materiaL As the case continued being investigated, more classifted
infbrmation was fbund on the accused'sdigital media; therefore additional approvals had
to be obtained. On 14March 2011.the prosecution submitted the original requests to the
different equity holders involved in this case. Below isasummary of when they
approved certain discovery of classifted information.which most pieces of evidence
contained some portion of

^3

32956

(U)DoDandDA. The Deputy Army G2 approved the 14March2011request on 30
March 2011.and other requests, dated 23 June 2011and4August 2011. On 28 October
2011.the Deputy Army G2 approved the prosecution'srequesL dated 26 October 2011.
forthe disclosure ofthe CID/CCIU classifted forensic reports and case ftle. The Deputy
Army G2 also approved requests for sensitive information throughout the summer of
201L
(U)ODNL ODNI approved disclosure ofthe Intelink logs on9August 2011.but onlya
certain portion. On40ctober 2011.ODNI approved ftnal disclosure ofthe portions of
the information that the prosecution intended to use as part ofits case. ODNI also
approved requests fbr sensitive information throughout the summer of2011.
(U)DIA. DIA approved the21 March 2011requeston7April 2011.and other requests,
dated 23 June 2011.4August 2011.60ctober 2011.and for sensitive infbrmation
throughout the summer of2011.
(U) DOS. The Department ofState approved the 14March2011request on 29 March
2011.and other requests for sensitive information throughout the summer of2011.

(U) On30ctober 2011.the prosecution received the ftnal version ofthe forensic reports
ftom CCIU. On40ctober 2011.the Deputy Director. CCIU approved release ofthe
reports, after review to ensure none ofthe infbrmation was classifted pursuant to CID's
original classiftcation authority and authorization for further dissemination. Bet^een3
October 2011and 26 October 2011. the prosecution support staff processed the
completed fbrensic reports, consisting of more than330.000 pages, and prepared them for
production. On 26 October 2011.the prosecution submittedarequest to the Army G2 for
approval to disclose the Army CIO forensic reports, but"only the classifted portions of
the CID investigation that involve DoD equities or equities ofother intelligence agencies
that[the prosecution hasjreceived independent approval for release." Additionally in
this request the prosecution submitted requests to disclose any other miscellaneous DoD
owned infbrmation that was collected in the fbrensic reports by CID. On 28 October
2011,the Army Deputy G2 approved the prosecution'srequest fbr disclosure of
classifted evidence to the defense and accused. By 28 October 2011, the prosecution
received, from ati the relevant OCAs. the last approval to disclose ati the images ofthe
digital media, which contained approximately8terabytes of classifted data, the fbrensic
reports, and any other information associated with the fbrensic reports. On4November
2011. the prosecution disclosed the classifted evidence.
When was the classifted ClO/CClU ftle disclosed to the Defense?
14

32957

ANSWER: (U) The prosecution disclosed the final CCIU fbrensic reports on4
Noyember2011(BATES^: 00046074 00375129) Aftercoordination with thedefense
about whether to produce the ati the interim reports, in their entirety.or just the portions
that are not the same, the prosecution disclosed to the defense, those portions ofthe
interim reports, for which it had authority to disclose.on24 April 2012 (BATES ^:
00419805 00445503)
61.
Why do you believe that you needed the classifted CID/CCIU ftle prior to proceeding
with the Article 32 hearing7 Explain why7
ANSWER: (U) The prosecution determined that disclosure ofthe forensic reports was
necessary befbre the Article 32 investigation because the forensic reports illustrate the
prosecution's theory ofhow the accused committed the charged misconducL Thedefense
is entitled to these forensic reports underRCM 405(g). and. had the Article 32
investigation continued without the fbrensic reports (i.e.. the evidence linking the accused
to the charged misconduct), the prosecution would not have met its burden or there likely
would have beenadefective Article 32 investigation.
62.

Were classifted CID/CCIUftlesprovided to the Defense afterthe Article 32 hearing7
ANSWER: (U)Yes.Seeabove^60.

63.
How many witnesses at the Article 32 hearing discussed classifted forensic evidence.
requiringaclosedsession7
ANSWER; (U) One witness discussed classifted forensic evidence requiring closed
sessions. SA David Shaver discussed classifted forensic evidence at two closed sessions
that were held during the Article 32 hearing.
Reouests for Excludable Delay
64.
Did you teti the Convening Authority that it was necessary (i.e.alegalprerequisite)to
haveaclassiftcationreviewpriortoanArticle 32 hearing?
ANSWER: (U) The prosecution explained to the Convening Authority that the
prosecution was not aware of any legal requirement thataclassiftcation of the charged
documents be completed before the Article 32 investigation. However, because the
classiftcation ofthe charged documents is an element ofthe majority of speciftcations
and ati parties needed to understand how to properly handle the infbrmation. the
prosecution found it necessary to put forth evidence conftrming the classiftcation ofthe
documents both at the time ofthe offense and at present time. Thus, the prosecution
requested this infonnation ftom the competent authorities. Additionally.after
recommendations from the Oepartment ofJustice and Code 30. OTJAG. US Navy,
including the Code 30 Primer on Prosecuting. Defending, and Adjudicating Cases

15

32958

Involving Classifted Information, the prosecution understood the importance of
conftrming the classiftcation ofinformation prior to starting an Article 32.
65.
Did you use the same document template every time you asked fbr excludable delay.or
didyouretypeawholenewmemorandum7
ANSWER: (U) The prosecution developed the document used in this case speciftcally
fbr this case and modifted the document each time the request was submitted to the
SPCMCA. to reftect any major update.
66.
How did you communicate with the Convening Authority fbr each ofthe excludable
delay memoranda7 List each excludable delay memorandum and indicate whether the
communication was in person, over the phone, by emaiL or in some other way.
ANSWER; (U) The prosecution submitted the below requests for excludable delay as
follows; (1)25 April2011;(2)22May2011;(3)27 June 2011;(4)25 July 2011;(5)25
August2011;(6)26 September201L(7)25 October2011;and(8)16November201L
The prosecution does not have records on whether it discussed the substance ofthe
requests for excludable delay by telephone or in-person. butadiscussionoccuned every
timearequest was submitted. For any telephonic discussion, the SPCMCA had the
request in his possession prior to the discussion.
67.
Ifthe communication was by emaiL please provide the supporting emails (both
Govemment and Convening Authority).
ANSWER: (U) No discussions occuned via emaiL they ati occuned either in-person or
by telephone.
68.
Ifthe communication was by phone, please indicate how long you spoke with the
Convening Authority on each occasion.
ANSWER: (U) The communications relating to the prosecution'srequest for excludable
delay lasted approximately 10-20 minutes.
69^
Ifthe communication was in person, please indicate how long you spoke with the
Convening Authority on each occasion.
ANSWER: (U) The inperson meetings relating to the prosecution'srequest for
excludable delay lasted approximatelylO-20 minutes.
70.
Did the Convening Authority sign the memoranda at these meetings, or did he just take
them from you?
ANSWER; (U) The SPCMCA did not sign the requests fbr excludable delay at these
meetings; he waited untti receiving input from the defense.

16

32959

71.

Did you draft the memoranda for the Convening Authority to sign7
ANSWER; (U)Amember of the prosecution drafted the memoranda.

72.

If yes. did he ever make any changes to what you had drafted7
ANSWER: (U) The SPCMCA did not make any changes to drafted speedy trial
memoranda but did make changes to other memoranda.

73.
Did the Convening Authority have digital versions ofthe documents you were presenting
to him so he could have made changes7
ANSWER; (U)Yes
Did the Convening Authority ever ask:
74.

What the classiftcation review entailed7 Ifyes. explain what you told him.
ANSWER: (U)Yes. The prosecution provided him an explanation ofthe process and
who the likely OCAs were for each organization.

75.^

What the approval fbr classifted infbrmation entailed7 If yes, explain what you told him.
ANSWER; (U)Yes. The prosecution provided him an explanation ofthe types of
documents and information that needed approvals and who the approval authorities were
for each organization.

76.

What the Defense request for "substitutions" meant7 Ifyes,explain what you told him.
ANSWER; (U)Yes. The prosecution provided the SPCMCA an explanation based on
MRE 505 and the Code 30 Primer on Prosecuting, Defending, and Adjudicating Cases
Involving Classifted Information, along with advice ftom the Oepartment ofJustice and
Code 30. OTJAG. USNavy

77.

What R.C.M. 707 and Article 10entailed71f yes. explain what you told him.
ANSWER; (U)Yes. The prosecution explained the rule and law.

78.
What was taking so long with the classiftcation reviews of charged documents7 Ifyes.
explain what you told him.
ANSWER; (U)Yes. The prosecution explained which organizations were reviewing the
documents and how certain documents had to go through the refenal process, to another
organization, because they contained information that potentially belonged to other
equity holders. The prosecution also explained that the process was lengthy because of

17

32960

the volume ofinfbrmation and the organizations having to balance real-world operations,
mitigation ofWikiLeaks releases, and completing the classiftcation reviews.
79.

You to go back to the OCAs to expedite the process? Ifyes, explain what you told him.
ANSWER: (U)Yes. The prosecution provided the SPCMCAwith updates on how the
prosecution was requesting updates from the organizations and how we were explaining
the prosecution's speedy trial obligations to the organizations.

80.
him.

Whether he could help expedite the OCA approval process7 Ifyes. explain what you told
ANSWER: (U) Although the SPCMCA asked multiple times whether he could assist
with processes, the prosecution explained the process to him and how that process was
being coordinated between legal offices. Additionally,the prosecution explained to him
that ifhis assistance could speed up the process, the prosecution would ask for him to be
directly involved.

^L
How many people ftom each ofthe OCAs was working on the classiftcation review7 If
yes. explain what you told him.
ANSWER: (U) No
82.
Why it was necessary to haveaclassiftcation review prior to the Article 327 Ifyes.
explain what you told him.
ANSWER: (U)Yes Seeaboye^64
83.
How many charged documents each ofthe OCAs was reyiewing7 Ifyes. explain what
you told him.
ANSWER: (U)Yes. Weprovided the SPCMCA with copies of each of our requests that
listed the documents in Enclosurelof each requesL
84.
How long theftnalwork product ofthe OCAs for the classiftcation reviews ofthe
charged documents should be7 Ifyes. explain what you told him.
ANSWER: (U)No. Although our classiftcation review request provided an example of
adeclaration and OCA cover letter, the prosecution never discussed with organizations or
the SPCMCA the length ofaclassiftcation review. The length ofadocument is not
necessarily indicative ofthe amount ofeffortorthoroughness ofthe documenL so length
wasneveraconsideration.
85.
How long the classiftcation reviews that were coming in in the Fati of2011were7 Ifyes.
explain what you told him.

32961

ANSWER: (U)No Seeaboye^84
^6.

Toseeaclassiftcation review in this case7 Ifyes. explain what you told him.
ANSWER; (U) The SPCMCAreviewed ati classiftcation reviews befbre ordering the
Article 32 to restart and before giving his recommendation to the General Court-Martial
Convening Authority.

87.
Whether the Oefense was entitled to the classiftcation review in the absence ofaspeciftc
Defense request7 If yes. explain what you told him.
ANSWER: (U) The prosecution does not speciftcally remember the SPCMCA asking
this question, because it was determined that the prosecution needed adequate evidence
ofthe classifted nature ofthe information befbre proceeding to the Article 32 to ensure
the information was actually classifted.
88.
How long it should take and did take to get ati relevant individuals security clearances7
If yes. explain what you told him.
ANSWER: (U)Yes. The prosecution discussed the security clearance process with the
SPCMCA and explained how the prosecution was able to establishaprocess through the
Army G2 security offtce to expedite clearances in this case, even fbrTS/SCl clearances.
Once the Preliminary Classiftcation Review (PCR) was completed, the process could be
expedited based on the bonaftdeneed for clearances.
89.
Whether you could have proceeded with the Article 32 in the absence ofthe OCA
classiftcation reviews7 Ifyes. explain what you told him.
ANSWER: (U)Yes. The SPCMCA directed the prosecution toftgureout the fastest
way to proceed to an Article 32. while ensuring the information was classifted because it
was required based on the charges and that the accused had access to the infbrmation to
defend himselfat the Article 32.
90.
Foramore detailed accounting of what the Government was dotng7 Ifyes. explain what
you told him.
ANSWER: (U)Yes. During the approximate weekly meetings, the SPCMCA inquired
into the activities ofthe prosecution and what updates the prosecution received ftom any
organizations.
91.
Once you began making Govemment requests for delay, what you had done in the one
yearprior7
ANSWER: (U) The prosecution consulted with the SPCMCA on an approximate weekly
basis relating to the status ofthis case, to include ati periods ofdelay before and after the

L9

32962

prosecution began requesting periods of excludable delay.which included discussions
about prior activities.
92.
Other than his21January2010memorandum to Col Choike. did COL Coffinan expressa
concem over PFC Manning'sconftnement conditions at Quantico during the time he signed the
excludable delay memoranda? Explain.
ANSWER: (U)Yes. After receiving the accused in his command, the SPCMCA
directed his company commander to ensure the command visited the accused at least
twiceamonth and to try and visti weekly. He was briefed either by the chain of
command or prosecution about the accused's status and any complaints or other issues the
accused raised with the chain ofcommand during their visits. Additionally.the
SPCMCA sent his CSM to visit the accused on his behalf
93.
Did COL Coffinan ever express concem about how many raw days had elapsed since
PFC Manning was placed in pretrial conftnement7
ANSWER; (U)Yes. The SPCMCA was concemed about the total amount oftime since
the accused was placed in pretrial conftnemenL including the amount oftime since the
original charges were prefened. and the time after the additional charges were preferred.
94.
IfCOL Coffinan had ordered OPLAN Bravo to be executed as ofNovember 1.2011.
could it have been executed in 30 days7
ANSWER: (U) The mission ofOPLAN BRAVOwas to provide supportto the
SPCMCA's command to conduct the Article 32 hearing by conducting transport and
security ofthe accused between Fort Leavenworth and Fort Meade and provide security
and other support at Fort Meade. Phasel(Coordination and Planning) of OPLAN
BRAVOactually started prior to the SPCMCA's order as outlined on page3ofthe order.
As outlined in the order, the command made ati the necessary preparations in order to
execute the Article 32 prior to the SPCMCA ordering the Article 32 to restart. Phase II
ofOPLAN BRA VOwasonlytriggered bythe SPCMCA'sordertorestartthe Article 32
which then implements these security.ttaveL public affairs, and installation management
organizations to execute the requirements that were previously planned for in PhaseL
This execution process took no more than 30 days to complete. Ifthe SPCMCA ordered
the Article 32 to restart onlNovember 2011,then OPLAN BRAVO Phase II would have
been completed within 30 days.
R.C.M.706Board
95.
Why wasn'tthe706 board ordered to resume its work when the Preliminary
Classiftcation Review (PCR) was completed on 13December 20107
ANSWER: (U) The purpose ofthe PCR was to determine the level of clearances needed
fbr the defense counseL defense experts.RCM 706 board. Article 32 offtcer. and ati
others involved in this case. Once the PCR was completed on 13December 2010. the
20

32963

prosecution started obtaining the appropriate clearances for the RCM 706 board. The
board could not start its work untti itsftnalcomposition was determined.which could not
occur untti the level ofclearance was determined. On21 Oecember 2010. the ftnal board
membership was determined by the president ofthe board and the prosecution started
processing the board members for appropriate security clearances on21 December 2010.
Untti ati board members obtained the proper clearances, the board could not start work,
because ifaboard member was not able to be grantedaTS/SCI clearance, then they
could not be remainaboard member based on the defense requesL
96.
What did the Government do between3August2010, when the Convening Authority
initially ordered the board, and 13 December 2010, when the PCR was completed, to identify
potential board members7
ANSWER: (U) The prosecution originally coordinated with the president ofthe board to
identify the board members, untti the defense submitted its request to divulge classifted
infbrmation to the board. At that poim. the prosecution coordinated the PCR based on
the defense'srequest dated 26 August 2010(to include locatingaSCIF and arranging the
accused'stransportationto/ftom the facility).acted onftvedefense requests fbr experts,
coordinated with Army CID about the investigation and the ongoing WikiLeaks releases
ofcompromised information, responded to more than 200 defense emails, and
coordinated with those OCAs known at the time.
97.

When did the Govemment know the identity ofeach ofthe board members7
ANSWER: (U)0n9September 2010,the original members of the sanity board were
identifted. ThosememberswereDr.Sweda,LTC Schneider, and CPT(P) Benesh. On21
December 2010,LTC HemphitireplacedLTC Schneider because she had greater
availability at that poinL

9^.
Did each board member have the appropriate security clearance once they were selected
to serve on the RCM 706 board7
ANSWER; (U)No. Based on coordination with the board president (Or. Sweda) and the
senior OoD forensic psychiatrist(COL Malone), DoD did not have enough personnel
with TS/SCl clearances in the national capital region to support the defense's speciftc
request for the composition ofthe RCM 706 board because the same doctors that could
be on the board with clearances were also provided to the defense as defense experts.
Therefore, doctors with only "secret" clearances were selected and the prosecution
worked with Army G2 security to obtain quicklyLTC Hemphill's and CPT(P)Benesh's
TS/SCl clearances.
99.
If any member did not have the requisite clearance, what did the Govemment need to do
to obtain the appropriate security clearance for the member7 Please explain fbr each member
that did not have the requisite security clearance.

21

32964

ANSWER: (U) The prosecution requested that each member complete, and retum to the
prosecution.theappropriatepaperworktoreceiveasecurityclearance(e.g..SF86).
Then, the prosecution submittedaformal request to the Army G2 offtce for those
members to receive the appropriate security clearance. Once approved, the prosecution
coordinated with the Army G2 offtce to anange the necessary appointments(e.g..readon,ftngerprints.etc.)andto anange an expedited background investigation.
100. How long did it take to complete the process of getting every member the requisite
securitydearances?
ANSWER: (U) Approximately 40 days to obtainTS/SCl clearances with read-on's to the
compartments identifted by the defense experts.
101 Yourchronologystatesthaton31January2011"ALLRCM 706 BOARD MEMBERS
GRANTED SECURITY CLEARANCE(TS SCl) AND READ ON (SCl)"^why did ittake
untti31January2011to complete this process7 Whywasn'tthis process completed earlier7
ANSWER: (U)SeeaboveexplanationaboutthePCRandthe RCM 706(^95 and 99).
102. On 26 August 2010. the Defense notifted the Govemment that any board members would
needaTSSCI clearance.whatdidn'tidentify the board members at that point and ensure each
member had the requisite security clearance7
ANSWER: (U)SeeaboyeexplanationaboutthePCRandthe RCM 706(^95 and 99)
Further, the defense did not object to the process ofusing the PCR to determine what
clearances were required for the RCM 706 board, ratherthan relying on the accused's
proffer alone.
103. What steps did the Government take to locateaSClF for the board members to meet with
PFCManning7
ANSWER: (U) In early October 2010. the prosecution foundaSClF location that was
easily accessible and provided adequate physical security fbr the accused. It was also
secluded to provide privacy.so that the accused'sexposure to the public while in
shackles was minimized. The prosecution coordinated with the defense to determine
whetherthey supported the location.at Fort Belvoir. for the PCR. client meetings, and the
RCM 706. On 120ctober 2010. the prosecution sent an emati to Mr. Coombs asking for
ftnal inpuL On the same day.Mr. Coombs emailed the prosecution stating "the [location]
isftnefbr the PCR, client meetings, and the706 board." From that point forward, the
prosecution securedalocation for the SCIF for the future RCM 706 board. During
telephonic and emati conversation around 30 November 2010, Mr. Coombs stated that
the defense no longer wanted defense meetings and the RCM 706 to be held at the
predetermined location at Fort Belvoir because it wasalaw enfbrcement organization.
Once the PCR was completed and it was determined thataSClF was actually needed for
the RCM 706, the prosecution started to coordinate with different intelligence
organizations within the national capital region to try and ftndasuitable facility. On 27
22

32965

January2011,the prosecution requested assistance from INSCOM to useafacility that
had previously been considered for the PCR asalocation for the RCM 706. On 25
February 2011. the prosecution notifted Mr. Coombs via emati that based on the defense's
request to have client meetings and the RCM 706 interview atalocation other than the
location previously identifted on Fort Belvoir. INSCOM had formally authorized the use
ofadifferent location. This location was an INSCOM operated facility that had large
conference rooms spread throughout multiple ftoors. Unlike the previously identifted
building at Fort Belvoir, this building was setup likeanormal civilian offtce building and
only had one set ofelevators and stairs. This facility is mostly occupied by civilians and
used for intelligence training courses. Based on this, the facility could not providealevel
of privacy during the week that could prevent bystanders from seeing the accused being
escorted through the factiity in shackles. The command chose to use this facility over the
weekends to provide the proper privacy to the accused and not disrupt the cunent
operations ofthe building.
104.

When did the Government begin the process oflocatingaSCIF7
ANSWER: (U)Seeaboye^l03

105. According to the trial your chronology,youconducta"recon" of the fNSCOM SCIF on
25 February 2011. Why did you wait unit untti 25 Febmary 2011toconductarecon ofthe
INSCOM SC1F7
ANSWER: (U) The recon conducted on 25 February 2011was for security and other
support personneL and not for the purpose of determining which facility to use.
106.

Was the706 board conducting any work between3February and 25 Febmary 20117
ANSWER: (U) During this time, the RCM 706 board notifted both the prosecution and
the defense that it had considered the defense'srequest fbr CAPT Moore to attend the
interview portions ofthe evaluation and that it was beginning to schedule the evaluation
oftheaccused. Additionally.the board notifted both the prosecution and defense about
setting up medical appointments and coordinating evaluations at Quantico. Additionally,
the RCM 706 board went to Quantico on 16February2011to evaluate the accused, as
indicated on Dr.Sweda's emaiL dated 15February20ll.to both the prosecution and
defense, and for the purpose to allow the defense expert to meet them at Quantico.

107. OnlMarch 2011.your chronology indicates that you scbeduledatourofthe fNSCOM
SCIF forthe 706board7 Why didthe706boardneedtotourthe INSCOM SCti^7
ANSWER; (U) The prosecution scheduledaleaderrecon ofthe INSCOM SCIF forthe
command chasers and not the RCM 706 board to tour the facility. This was outlined to
the defense by emaiL dated 27 February 2011. where the prosecution speciftcally stated
"we witi meet with INSCOM early this week to ensure we have the proper facility and it
provides your client with the appropriate amount ofprotection. both for his physical

23

32966

security and also shield him from the general public to minimize any potential
embanassment."
108. According to your chronology.you notifted the Defense on5March 2011.that the
INSCOM SCIF was available any Saturday after5March. Why did it take so long to secure the
INSCOM SCIF?
ANSWER: (U)Seeaboye^l03andl07
109. In the emati to the Oefense. you stated that "we received authorization to use the SCIF on
Saturdays to minimize the accused's exposure to third parties." Why did you need to limit the
use ofthe SCIF to Saturdays only7
ANSWER: (U) It was preferred that the board evaluate the accused onaweekend to
limit any transportation issues ofthe accused to fNSCOM and to limit the exposure ofthe
accused.apretrialconftnee allegedly responsible for the largest compromise of classifted
infbrmation in military justice history.to third parties for safety and humiliation
purposes, as outlined above.
110. Were you ever infbrmed that Or. Sweda wanted to meet with PFC Manning inaSCIF on
aweek day instead of weekend7
ANSWER: (U)Yes.On3March201Lfbe RCM 706 boardnotifted the prosecutionand
defense that it had scheduled an interview ofthe accused onaweekday. The RCM 706
board asked both parties ifthat would work. On3March 2011.the prosecution notifted
the board and defense that interviewing the accused onaweekend would be prefened and
the defense did not objecL
DepartmentofState
Z^^^^^^^.^,^^,^,^^^^/
111. When did youftrstleam that the Department ofState was working onadamage
assessment7
ANSWER: (U)On60ctober 2011.the prosecution requested authority to review any
Department ofState damage assessmenL This request was denied; however, the
prosecution was authorized to meet with the author ofthe draft damage assessmenL At
that poinL the prosecution leamed the draft damage assessment wasaworkingprojecL
112. Why did you use the expression "The Department ofState has not completedadamage
assessment" in your motion, in oral argumenL and in response to the Court'squestions7
ANSWER: (U) Based on the brieftng the prosecution received referenced above, and the
inquiries the prosecution made to the DepartmenL and based on the prosecution not
having access to the draft damage assessment untti17April 2012. the prosecution
24

32967

understood the Department did not haveacompleted damage assessment and onlya
draft. Also, based on the review ofthe document and the explanation by the DepartmenL
the Department never hadacompleted damage assessmenL onlyadocument in draft
form.
113. Did the Department ofState require you to use that expression7 If so, please provide
documentation.
ANSWER: (U) The Department provided the prosecution with answers to the
prosecution'squestions, based on defense and Court requests. Ati documentation, ifany.
that the prosecution has authority to provide or witi reference during the motions hearing
has been provided to the defense.
114. Priorto thel5March 2012 motions argumenL you had several communications with the
Department ofState regarding the "draft" damage assessment? What did these communications
entail7
ANSWER: (U) The prosecution and the Department ofState discussed many issues,
including the status ofthe alleged damage assessmenL anyTouhy requirements, and
FOIA requests regarding WikiLeaks.
115. Your Chronology in early March 2012refers to discussions with the Oepartment ofState
regarding the "draft" damage assessmenL Why did you not teti the Court that the Department of
State hadadraft damage assessment when you yourself were refening to it asa"draft"damage
assessment in your timesheets7
ANSWER: (U) The prosecution created the chronology in September and October of
2012.after litigation on this issue. At the time oflitigation. the prosecution was not
authorized to review the draft damage assessment unttil7April 2012. Untti that time,
the prosecution was not inaposition to deftnitivelyconftrm the status ofthe assessmenL
Thus, the prosecution relied upon the status updates provided by the Department ofState.
116. Why did you refuse to acknowledge that the Department ofState had some form of
damage assessment7 (you refened totias "alleged" and refused to confirm whether it existed)
ANSWER: (U) The prosecution was not authorized to review the draft damage
assessment unttil7April 2012. Untti that time, the prosecution was not inaposition to
deftnitivelyconftrm the status ofthe assessmenL Additionally.the prosecution uses the
term "alleged" during public sessions for many reasons, including fbr information that
cannot be conftrmed or denied to exist based on its classiftcation. Untti the prosecution
receives conftrmation from the owning organization that information is not classifted. the
prosecution cannot confirm the existence ofinformation.
117. Did the Oepartment ofState require you to refer totias "alleged"7 If so. please provide
documentation.

25

32968

ANSWER: (U)No Seeabove^ll6
118. In light ofyour knowledge and discussions about the "draft" damage assessmenL do you
believe the expression you used "The Department ofState has not completedadamage
assessment" gaveafalse impression?
ANSWER: (U) No.
119. You indicated at oral argument that you could not confirm whether or not the Department
ofState draft damage assessment contained Brady infbrmation because that information was
classifted. Please provide supporting documentation.
ANSWER: (U) The prosecution cannot conftrm or denywhether classifted information
exists, unless it has speciftc authority to do so. Any Brady infbrmation would be
contained in the text ofthe classifted document and would require authority to publically
conftrm or deny its existence.
120. Is the Department ofState'sposition that the document is stitia"draft"7 (i.e. that it is not
completed).
ANSWER: (U)Yes
121.

If so. has the document been changed since last reviewed by the Court and Defense7
ANSWER: (U) No

122.

What is the date on the Oepartment ofState damage assessment7
ANSWER; (U) August 2011. The Department did not update the draft assessment since
August2011.

123.

When did youftrstask to review the Department ofState damage assessment?
ANSWER: (U) The prosecution formally requested authority to review any records
relating to the accused and/or WikiLeaks as part ofits Prudential Search Request dated
14June2011. The prosecution later speciftcally requested authority to review any
damage assessment on60ctober 2011. Before then, the prosecution had informally
requested such authority.

124.

When did the Department ofState authorize you to view the damage assessment7
ANSWER: (U) 17April2012

125.

When did you view the Oepartment ofState damage assessment?
ANSWER; (U)17April2012
26

32969

126.

When did the Department ofState authorize the Defense to view the damage assessment7
ANSWER: (U) The Department ofState authorized the draft damage assessment to be
made available to the defense fbr inspection onl8May2012,after the Court'smling.

127.

When was the damage assessment made available to the Defense7
ANSWER: (U) The draft damage assessment was made available to the defense for
inspection onl8May 2012.

128.

Did the Oepartment ofState resist providing the damage assessment to the Defense?
ANSWER: (U) The Department did not provide the defense or prosecution access to the
document because it was in draft form, untti the Court ordered its disclosure.

129. Did the Department ofState insist that the damage assessment wasadraft and not
discoverable?
ANSWER: (U) The Department ofState notifted the prosecution that the assessment was
adraft and inquired whether it would be discoverable.
130. Did the Department ofState request or advise that you submitamotion for
reconsideration ofthe Court'sruling with respect to the discoverability of the damage
assessment7
ANSWER: (U) The prosecution made ati decisions regarding which motions to ftle.
.^^^^/^/.^cov^^
131.

When did you ftrst makearequest for Brady material from the Department ofState?
ANSWER; (U) The prosecution ftrst formally requestedaPrudential Search for
responsive materiaL which included Brady,onl4June 2011.

132. Why did you not contact the Department ofState earlier to make the request for Brady
material7
ANSWER: (U) During 2010, the prosecution'srelationship with the Department ofState
was primarily focused on the investigative activities ofDSS into the compromised
purported cables, including the effect ofthe ongoing WikiLeaks releases, and identifying
purported cables that would be authorized to be used at triaL During this time, the
prosecution was also involved in the PCR. as weti as multiple defense requests and
conespondence. as explained above. In March 2011, additional charges were preferred.
The prosecution understood the necessity to preserve any discoverable material for the
court-martial and. with the assistance ofthe Department ofJustice. submitted Prudential
27

32970

Search Requests to each organization for which it hadagood faith basis may have
records or information relating to the accused and/or WikiLeaks.
133.

Did you use the term Brady and/or R.C.M. 701(a)(6) in your request?
ANSWER: (U)No. The purpose ofthe Prudential Search Request was to include more
than what Brady and RCM 701(a)(6) require so that the prosecution could review the
infbrmation and determine whether it was Brady or RCM 701(a)(6) materiaL

134. Did you explain in this request that you were looking fbr mitigating evidence, both for
merits and for sentencing7
ANSWER; (U) The Prudential Search Requests included broad language that would
include any mitigating information. The prosecution speciftcally stated that it was
requesting any documents relating to damage.
135. How many manpower hours in total did it take the Oepartment ofState to gather
responsive documents7(this relates solely to the Brady discovery)
ANSWER: (U) The prosecution does not know.
136.

When did the Department ofState provide you with Brady material7
ANSWER: (U) The Department ofState ftrst authorized the prosecution to review some
documents onl7April 2012.and ati documents on 28 June 2012.

137. Between the date that youftrstmadearequest fbr Brady material from the Department of
State and the time the Department ofState provided you with Brady materiaL did you contact the
Department ofState about expediting the process7 lfso.when7 What was said7 Pleaseprovide
documentation.
ANSWER: (U) The prosecution never cited Brady in its requesL but rather requested
material that would be responsive to the Prudential Search RequesL From the date ofthe
Pmdential Search Request (i.e..l4June2011)untti the date records were provided in
response thereto (28 June 2012).the prosecution contacted the Department ofState more
thanlOO times. Those communications included updates on the status ofthe request and
answering any questions regarding the scope ofthe requesL
138. When did you review the Brady material provided by the Department ofState7 Please
provide dates.
ANSWER; (U) The prosecution ftrst reviewed information onl7Aprti 2012.and other
infomiation on28 29 June 2012.5July2012.lll2July 2012. andl9July 2012
139.

How many documents did the DepartmentofState provide you with?

28

32971

ANSWER;(U) Approximately 6.000 documents.
140.

How many hours collectively did it take you to review the Brady material7
ANSWER; (U) The prosecution reviewed the approximately 6.000 documents fbr more
thanlOO hours.

141.

When did you disclose the Brady material ftom the Department ofState to the Defense?
ANSWER: (U) The prosecution disclosed more than Brady infbrmation to the defense.
The prosecution disclosed the entire DSS investigativeftleto the defense on or about5
December2011(BATES^: 00408089 00408167) Theprosecutionmadethedraft
damage assessment available to the defense for inspection on18May 2012. The
prosecution made available for inspection on3August 2012, and delivered copies21
September 2012 ofdiscoverable material for which limited disclosure was not sought
(BATES^:00519353 00523672).The prosecutionftledamotionfbr limited disclosure
under MRE 505(g)(2)fbr the remaining discoverable material on3August 2012. The
Court granted the motion on 28 September 2012andl8October 2012. Theprosecution
applied the appropriate redactions and delivered this material to the defense on 26
October2012(BATES^: 00525870 00526366) Ati captionedmaterial is locatedatthe
Department and available for inspection, as outlined in the MRE 505(g) motion and
subsequent notice disclosures.

142. When you ftled your June motion resisting production ofDepartment ofState documents
on the grounds that they were likely cumulative, had you reviewed ati the Department ofState
documents?
ANSWER: (U) The prosecution reviewed ati the material(except where otherwise
annotated in the motion)proyided by the Department ofState that was responsive to the
Court'sOrder. dated8June 2012
143.

If noLwhat were you basing your litigation position on7
ANSWER; (U)Notappticable

144.

Did the Department ofState advise or suggest that you adopt this litigation position7
ANSWER: (U) No

145. Prior to June 2012. did the Department ofState provide you with evidence for your case
in chief? Please list categories ofevidence that the Department ofState provided to you prior to
June 2012.
ANSWER: (U)Yes. The Department ofState provided the prosecution with the charged
documents, forensic evidence.aclassiftcation review of classifted information, and the
DSS investigative ftle. Seeaboye^l41.
29

32972

146.

Was the Department ofState involved in selecting the charged documents7
ANSWER: (U)Yes. The prosecution had to obtain approval by an OCA to use the
infbrmation inacriminal proceeding; therefbre. the Department was involved in the
selection process.

147.

Was the Department ofState involved in providing valuation eyidence7
ANSWER: (U)Yes. The prosecution obtained valuation documentation and witnesses
ftom the DepartmenL

148.

When did the Defense submit toaTouhy request to you?
ANSWER: (U) The defense did not submitaTouhy request to the prosecution.but rather
to the Department ofState. and the prosecution receivedacopy. The defense notifted the
Court that it submitted the request on 23 March 2012.

149.

When did you submit theT^^/r^ request to the Department ofState7
ANSWER: (U) The prosecution did not submitaTouhy request to the DepartmenL but
rather assisted with ensuring the Department received the request that defense submitted
via mati. On 26 March 2012,the prosecution forwarded the digital copy oftheTouhy
request to the Department so they would be able to know what to expect through the
maiL

150.

When did the Oepartment ofState receive theTouhy request7
ANSWER: (U)0n5Aprti 2012 and the prosecution infbrmed the defense of this date
yiaemation9April2012.

151. If there isatime lag between the date the Oefense submitted theTouhy request and the
date the Department ofState received theTouhy request, please explain.
ANSWER: (U) The prosecution is not aware ofatime lag as the defense mailed the
request to the Department ofState.
152. Since the Defense submitted theTouhy requesL did you ever contact the Department of
State about expediting the process7 Ifso. please provide dates, details and documentation.
ANSWER: (U) The prosecution contacted the Department more thanlOtimes about the
Touhy requesL Ati documentation, if any.that the prosecution has authority to provide
or witi reference during the motions hearing has been provided to the defense.

30

32973

153. Why was the Defense'sTouhy request not processed after being told you would ensure
timely and meaningful access to Department ofState witnesses7
ANSWER; (U) The Department processed the defense'sTouhy requesL however, based
on the prosecution'switness lisL dated 22 June 2012.the Department voluntarily made
its witnesses available to the defense. On9August 2012.the defenseftrstcontacted the
Department to schedule interviews, and the attomey advisor who was responsible fbr this
process was on leave. The prosecution is not aware if the defense followed up with the
Department prior tolNovember 2012. Based on the explanation ofthe MRE 505 and
protective order requirements outlined in the prosecution notice. datedl80ctober 2012.
the prosecution notifted the Department ofwhat notice the defense is required to give
prior to classifted discussions with witnesses. Based on that update, the Department
emailed the defense onlNovember 2012 to continue the planning for the defense to
meet with Undersecretary KennedyftrsLbased on the defense'srequesL Since that time,
the Department and defense are coordinating ati witness interviews.
D^^
154.

When did DSS complete its investigation7
ANSWER; (U) The prosecution is not aware ofwhen DSS officially completed its
investigation.

155.

When did you ftrst request to view DSS ftles?
ANSWER: (U)6May201L

156.

When did youftrstviewtheDSS ftles7
ANSWER: (U) 25 May 2011and we receivedacopy oftheftlesto complete our review
on26August2011.

157.

How many total manpower hours did it take you to review the DSS ftles?
ANSWER: (U) It took approximately 20 total manpower hours to review the ftles.

158.

Did you require approval to disclose thoseftlesto the Defense7
ANSWER: (U)Yes.

159.

When did you request such approval?
ANSWER: (U)Onorabout29August2011

160.

When did OSS consent to disclosure ofthe ftles?

31

32974

ANSWER: (U)Onorabout29August2011
161.

When were ati the DSSftlesproduced to the Defense7
ANSWER: (U) 23 November 201L

Federal Bureau oflnvestigation
7^v^,^/^^^//v^/^//^
162.

When did the FBI start its investigation ofthe accused7
ANSWER: (U) 30 July 2010

163.

When did the FBI complete its investigation ofthe accused7

164. According to your Response. onl9April 2011.you requested approval to disclose to the
defense the FBI case ftle and its sub-ftles. You also made two other duplicative requests on 28
July 2011and 15 August 2011. Why did you have to make three requests forthe same thing7
ANSWER; (U)On 19 April2011,28July 2011,and 15 August201Lfheprosecution
requested the FBI case ftle and its sub-ftles related to the accused. After theftrstrequesL
the prosecution travelled to the FBIfteld offtce and reviewed portions of the caseftleto
understand what type ofinfbrmation exists in the entire ftle, notjust what is related to the
accused. Based on the previous reviews and multiple meetings with FBIHQ, the FBI
provided the prosecution withacopy ofitsftleson 25 August 2011toconductaBrady
review which expedited its review ofthe ftle fbr discoverable materiaL
165. When did the FBI consent to disclosure ofthe FBI ftle to the Defense7 Pleaseprovide
documentation to this effecL
ANSWER: (U) Theftrstbatch of approval was received on7March 2012,but was
conditioned on the Court issuingaprotective order fbr classifted information,which was
ordered onl6March 2012.
166. If you were requesting onl9 April 2011approyal to disclose the FBIftle to the defense,
why was it that you did notftnishreviewing the ftle unttilFebruary 20127
ANSWER: (U) The prosecution requested theftlesfor its review on 19 April 2011and
receivedacopy oftheftleson 25 August 2011for the limited purpose of searching fbr
Brady materiaL The prosecution completed its review of thoseftlesonlFebruary 2012.
167.

When was theftrsttime that you saw the FBIftle?
.32

32975

ANSWER: (U) The prosecutionftrstreviewed portions of the ftle on 27-29 April 2011.
168.

When were you givenacopy of the FBI ftle7
ANSWER: (U) The prosecution was givenacopy of the records relating to the accused
on 25 August 2011for the sole purpose of reviewing fbr Brady information. At that
poinL the prosecution'ssupport staff started to process more than 44.000 pages. In
September and October 2011. the prosecution was able to ingest digitally ati the
documentation into the discovery review and tracking software.which was originally
provided in hardcopy.and prepare the information for review by the prosecutors.

169.

How many hours collectively didtitake the prosecution to review the FBI ftle7
ANSWER; (U) The prosecution spent approximately 400 hours reviewing the FBI ftle.

170.

When did you review the FBI ftle7 Please give speciftc dates.
ANSWER: (U)27 29April201L18May201Lbetween3January2012andlFebruary
2012.and multiple times afterlFebmary2012after discussions about speciftc
documents with the FBI and DOJ.

171.

When did you disclose the entirety ofthe discoverable FBI ftle to the Defense?
ANSWER: (U) The prosecution started to disclose the FBI ftle to the defense onl6
March 2012and completed production on 25 October 2012after the Court approved the
ftnal substitutions under MRE 505(g) onl80ctober 2012.

172. You say that on7February 2012.you "began extensive negotiations with DOJ and the
FBI to disclose ati requested infbrmation to the defense." You then state. "The FBI would not
approve disclosure to the defense, absentamilitary judge to issueaProtective Order." Isyour
position thaL as of7February 2012, the FBlrefused to consent to disclosure of the FBI
investigative ftle to the Oefense because the Military Judge had not signedaprotective order?
ANSWER: (U)Yes
173. Is there any documentation ftom the FBL other than Unclassifted Emati 0451. that
refiects the FBI'sposition that it would not consent to disclosure ofthe investigativeftleabsenta
protective order signed byaMilitaryJudge7
ANSWER; (U) Unclassifted Emati 0451 does not reftect this information, but rather
focuses on DOJ and the FBl'sreview ofthe originally unclassifted CID case ftle. The
prosecution inaccurately cited this in its reply to the defense motion. The requirement fbr
aCourt order was relayed to the prosecution during an inperson or telephonic meeting.

33

32976

174. How can the Unclassifted Emati 045lbe read to say that the FBI'sposition is that the
FBI would not consent to disclosure of the investigative ftle absentaprotective order signed bya
Militaryjudge?
ANSWER; (U)Seeabove^l73.
175. How can an emati from5May 2011.written nine months prior to you reviewing the FBI
ftle be read as saying that the FBI witi not consent to disclosure of the investigative ftle absenta
protective order signed byaMititaryJudge7
ANSWER; (U)Seeaboye^l73
176. Why is Unclassifted Emati 045lentitled "CID Case File and Update" ifit deals with the
FBI investigative ftle7
ANSWER: (U)Seeabove^l73. The referenced emati was in relation to OOJ and the
FBl'sreview of the originally unclassifted CID case ftle.
177. Is Unclassifted Emati 0465 part ofthe same emati chain since it has the same subject
Iine7
ANSWER; (U)Yes
178. In Unclassifted Emati 0465. you state. "Joe and Angel are going to coordinate with
[redacted] toftnishscmbbing the FBI ftles. and then we witi put together our ^wishlist'ofthe
documents we would like authorization to use and/or turn over in discovery. Ideally.inthe
coming weeks.we witi haveacomprehensive list of ati documents in ati investigative ftles(ClD.
FBL and DSS). that we would like to seek approval for use during discovery and witi present the
list to ati for input and potential fbr follow-on action(e.g.requestingamodiftcation of sealing
orders)." How can the FBlhave refused to consent to disclosure of documents in Unclassifted
Emati 0451 when you had not yet prepared your ^wishtist'7
ANSWER: (U)Seeaboye^l73
179. Why would you teti the FBI you would put togethera"comprehensiye list of ati
documents in ati investigativeftles(C1D.FBLandDSS). that we would like to seek approval for
use during discovery and witi present the list to ati fbr input and potential for follow-on action" if
the FBI had already told you that it would not consent to disclosure of the FBI ftle absenta
Military Judge'sorder7
ANSWER: (U)Seeaboye^l73.
180. If the FBlhad indicated on5May2011that it would not disclose theftlesto the Oefense
absentaMilitaryJudge'sorder. why did you request on 28 July 2011and 15 August 2011that
the FBI consent to disclosure oftheftlesto the Defense7

34

32977

ANSWER: (U)Seeaboye^l73
181. If the FBI'sposition was thattiwould not disclose documents absentamilitary judge's
protective order.was it aware thataprotective order was already in place7 Why was that
protective order not sufftcient for the FB17
ANSWER; (U)Yes. The FBI and DOJ were aware thataconveningauthority'sorder
was in place; however, they requiredacourt issued protective order which could be
enforced byamilitary judge.
/^^//^^^c/^/^/^^^^/
182. When did you know that the FBI was working on an impact statement/damage
assessment (hereafter "impact statement")7
ANSWER: (U) The prosecution ftrst became aware of the FBI impact statement on2
November 2011after the prosecution submittedarequest on6October2011to review
any damage assessment that was produced.
183.

When did the FBI start working on the impact statement7
ANSWER: (U) The prosecution does not know.

184.

When did the FBI complete the impact statement7
ANSWER: (U) The prosecution does not know.

185.

When did youftrstrequest to view the impact statement?
ANSWER; (U) On 27 June 2011. the prosecution submitted its Prudential Search
Requesttothe Federal Bureauoflnvestigation. On60ctober 2011.the prosecution
requested authority to review any damage assessmenL The prosecution did not know of
the existence ofthe FBI impact statement at these times.

186.

When did the FBI grant approval for you to view the impact statement7
ANSWER: (U)2Noyember2011

187.

When did you view the impact statement7
ANSWER; (U) The prosecution conductedacursory review ofthe FBlimpact statement
on2November2011. The prosecution reviewed the entire impact statement for
discovery purposes onl8April 2012.

188. Did the FBI request fbr you not to disclose the existence ofthe impact statement to the
Defense?
35

32978

ANSWER: (U) No
189. Why did you wait untti31 May 2012to alert the Court and the Defense to the impact
statement7
ANSWER: (U) The prosecution did not review the entire impact statement unttil8April
2012
190. Why did you use the phraseology that you "discovered" that the FBI had conducted an
impact statement when you had known about the impact statement fbr some time7
ANSWER;(U)0n31May 2012. the prosecution stated that it"discoyered thatthe FBI
conducted an impact StatemenL outside ofthe FBI law enforcement ftle.for which the
prosecution intends to ftle an ex parte motion under MRE 505(g)(2)." Theprosecution
did not review the entire impact statement unttil8Aprti2012and. in consultation with
the FBL determined that it would seek limited disclosure under MRE 505(g)(2).
191. Why did you provide "notice" to the Court ofthe impact statement in the middle ofa
Response motion, and notasaseparatemotion7
ANSWER: (U) The prosecution included this infbrmation in the section ofthe Response
that discussed the prosecution'sobligation to search fbr discoverable information in the
ftles oflaw enforcement authorities.which included the FBI.
192. Why did you not disclose the existence ofthe impact statement to the Oefense when the
Defense made the fbllowing discovery request on 20 January 2012: "Does the Govemment
possess any report, damage assessmenL or recommendation asaresult of any joint investigation
with the Federal Bureau oflnvestigation (FBI) or any other govemmental agency conceming the
alleged leaks in this case7"
ANSWER: (U) There was no damage assessment asaresult of any joint investigation
with the FBL The FBI impact statement was not prepared asaresuh of the joint
investigation between CIO and the FBL In addition, the defense request was not speciftc,
and the defense did not cite any authority requiring the prosecution to answer the request
atthattime. The prosecution requested the authority for the defense'sdiscovery requesL
but none was provided. The prosecution did produce the FBlimpact statement because it
was aware of the statement and hadacopy in its records to review as part ofaMRE
505(g) motion.
193.

When was the impact statement(withsubstitutions)provided to the Defense?
ANSWER:(U)On2August2012with redactions applied, afterthe Court's
authorization of redactions onl9July 2012.

^^^^/^/.^c^v^^
36

32979

194.

When did youftrstmakearequest for Brady material ftom the FBI7
ANSWER: (U) The prosecution ftrst formally requested Brady material inaPrudential
Search for responsive materiaL which included Brady.onl4June 2011.

195.

Why did you not contact the FBI earlier to make the request for Brady material7
ANSWER: (U) During 2010. the prosecution'srelationship with the Federal Bureau of
Investigation was primarily focused on the investigative activities into the compromised
information, including the effect ofthe ongoing WikiLeaks releases. During this time,
the prosecution was also involved in the PCR, as weti as multiple defense requests and
conespondence. as explained above. In March 2011. additional charges were preferred.
The prosecution understood the necessity to preserve any discoverable material for the
court-martial and. with the assistance ofthe Oepartment ofJustice. submitted Prudential
Search Requests to each organization for which it hadagood faith basis may have
records or infbrmation relating to the accused and/or WikiLeaks. The prosecution then
worked with the FBI to obtain the records to conduct the review.

196.

Did you use the term Brady and/or R.C.M.701(a)(6) in your request7
ANSWER: (U)Seeaboye^l33 and 194195

197. Did you explain in this request that you were looking fbr mitigating evidence, both for
merits and for sentencing7
ANSWER: (U)Seeaboye^l34andl94195
198.

When did the FBI provide you with Brady material7
ANSWER; (U) The FBImade ati the records related to the accused available fbr
inspection on27 29 April 2011andl8May 2011. On25August201Lftie FBI provided
the prosecufion withacopy ofthe records for the sole purpose of searching fbr Brady
materiaL The prosecution completed its review ofFBlrecordslFebruary 2012.

199.

How many documents did the FBI provide you with7
ANSWER: (U) Approximately 3.500 documents, totaling approximately 44,000 pages.

200. Between the date that youftrstmadearequest fbr Brady material ftom the FBland the
time the FBlprovided you with Brady materiaL did you contact the FBIabout expediting the
process? Ifso.when7 What was said7 Please provide documentation.
ANSWER;(U) From the date ofthe Prudential Search Request (i.e..14June2011)untti
the date ati records were provided in response thereto (25 August2011). the prosecution
contactedthe Federal Bureau oflnvestigation more than 20 times. Those
37

32980

communications included updates on the status ofthe request and answering any
questions regarding the scope ofthe requesL The prosecution worked with DOJ. the FBI
fteld offtce. and HQ FBI to determine the most efftcient and fastest way to have the
Army prosecutors review the records and obtain documents that needed to be produced,
while maintaining proper security and ensuring there is no compromiseof ongoing
criminal investigations or national security.
201.

When did you review the Brady material provided by the FBI? Please provide dates.
ANSWER: (U)Seeabove^l98.

202.

How many hours collectively did it take you to review the Brady material7
ANSWER; (U)Seeaboye^l69

203.

When did you disclose the Brady material ftom the FBI to the Defense7
ANSWER; (U)Seeaboye^l7L

ONCIX
204.

How many agencies did ONCIX include in its compiling its damage assessment7
ANSWER; (U)Tothe best of the prosecution'sknowledge. ONCIX contacted ftftysevengovemmentorganizationsto inquire whaL if any.damage resulted from the
WikiLeaks releases. SeveraL but not ati. ofthose organizations responded to ONCIX
with written or oral individual assessments. These individual assessments contributed, in
whole or in part, to the ONCD^ damage assessmenL The prosecution contacted each of
theftfty-sevenorganizations and retrieved those individual assessments. Forthose
organizations that orally disclosed their individual assessment to ONCIX. the prosecution
requested that those organizations memorialize their oral response in an emaiL The
prosecution received approval to disclose ati written and oral individual assessments to
thedefense. As of3August 2012.the prosecution has disclosed, or made available for
inspection, ati individual assessments to the defense.

205. What is the earliest date on these individual damage assessments7 What is the latest date
on these damage assessments7
ANSWER: (U) The prosecution has disclosed, or made available fbr inspection, ati
individual assessments to the defense.which answer this question.
206.

How many ofthese damage assessments are dated after April 2011?
ANSWER: (U) The prosecution has disclosed, or made available fbr inspection, ati
individual assessments to the defense, which answer this question.

38

32981

207.

When did ONCIX begin working on the damage assessment7
ANSWER; (U)Tothe best ofthe prosecution'sknowledge. ONCIX began receiving
individual assessments as early as March 2010. ONCIX continued to update its draft
damage assessment as infbrmation was compiled and analyzed amid ongoing WikiLeaks
releases.

208. When did you ftrst leam that ONClXwas charged with, or in the process of.working on
adamageassessment7
ANSWER:(U)0n2February 2011.the prosecution ftrstmetwith ONCIX to discuss
the damage assessment process. Atthat meeting. ONCIX notifted the prosecution ofits
charter to produceadamage assessmenL
209. According to your Chronology and/or Response, on 22 September 2011, the Govemment
was informed that ONCIX hadadamage assessment that was "in working draft form" and on6
March 2012,ONCIX informed the Government that its "draft damage assessment is cunentlya
draft." Intightofthese two statements that ONCIX hadadraft damage assessmenL why did you
tell the Court that you "were unaware [when the Court asked its questions]that[ONClX] had
any other documentation created that would even qualify asadraft."7
ANSWER: (U) ODNL on behalf ofONClX. provided the prosecution with the statusof
the ONCIX damage assessment at various points in this case. The prosecution relied
upon those updates to answer the Court'squestions relating to the status of the
assessmenL because the prosecution did not have the authority to review the damage
assessment untti 13July2012and had to rely on the information provided byanon-DoD
organization.
210. In light ofthe above statements, why did you further teti the Court twice that you had "no
clue" that ONCIX hadadraft damage assessment?
ANSWER: (U)Seeaboye^209
211. When you responded to the Court'squestions by stating "ONCIX has not produced any
interim orftnaldamage assessment in this matter,"why didn't you include the rest ofONClX's
statement7
ANSWER: (U) The prosecution relied upon updates provided by ODNI, on behalf of
ONCIX, to answer the Court'squestions relating to the status of the assessmenL because
the prosecution did not have the authority to review the damage assessment untti 13July
2012. The prosecution provided the information that it received that at the time was
responsive to the Court'squestions.
212. Why did you not infbrm the Court that ONClXwas in the process ofworking ona
damage assessment (inespective of whether it wasadraft or something else)?

39

32982

ANSWER: (U)Seeaboye^21L
213.

How did ONCIX provide the following statement to you?
Todate. ONCIX has not produced any interim or ftnal damage assessment in this matter.
ONCIX is tasked with preparingadamage assessmenL However, that draft damage
assessment is cunentlyadraft and is incomplete and continues to change as infbrmation
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 whena
draft product witi be ready fbr coordination, must less dissemination.
ANSWER: (U) ODNL on behalf ofONCL^. disclosed the infonnation via telephone and
emailed the prosecution unclassifted versions ofthe StatemenL

214.

Ifin writing, please provide the entire email/memorandum/letter.
ANSWER: (U) Ati documentation, if any.that the prosecution has authority to provide
or witi reference during the motions hearing has been provided to the defense.

215. Ifin yvriting.why did you teti the Court that ONCIX provided this statement to you orally
and that you wrote it down verbatim?
ANSWER: (U) Ifthe prosecution made this statement then it was mistaken. Many
positions ofthe United States govemment have been transmitted to the prosecution
through many different forums.and after reviewing ati the prosecution'semails in
preparation for the due diligence ftling, the prosecution fbund where the unclassifted
version ofthe statement was provided.
216.
Did ONCIX request and/or advise that you not disclose the existence ofthe damage
assessment to the Defense or the Court7
ANSWER: (U)No.ODNL on behalf ofONCf^, provided the prosecution with updates
on the status ofits draft damage assessmenL to be shared with the Court and the defense.
The prosecution relayed those updates to the Court verbatim because the prosecution was
not inaposition to comment on the status ofthe assessment untti it reviewed the
assessment on 13 July 2012.
217.
Did ONCIX require you to use the statement "Todate, ONCIX has not produced any
interim or ftnal damage assessment in this matter" in your communication with the Court? Ifso.
please provide documentation.
ANSWER: (U)Yes. ODNL on behalfofONClX. provided answers to questions about
the status ofits damage assessmenL The prosecution relayed those updates to the Court
verbatim because the prosecution was not inaposition to comment on the status of the
assessment untti it reviewed the assessment on 13 July 2012.

40

32983

218. If ONCIX required you to use the statement "Todate. ONCIX has not produced any
interim or ftnal damage assessment in this matter" in your communication with the Court, did
ONCIX prevent you from using the remainder ofthe statement (i.e."ONCIX is tasked with
preparingadamage assessmenL However, that draft damage assessment is cunentlyadraft...)7
ANSWER: (U)Yes. ODNL on behalfofONClX. provided answers to questions about
the status ofits damage assessmenL The prosecution relayed those updates to the Court
verbatim because the prosecution was not inaposition to comment on the status of the
assessment untti it reviewed the assessment onl3July 2012.
219. Do you believe that the expression "Todate, ONCIX has not produced any interim or
ftnal damage assessment in this matter" conveysafalseimpression'7
ANSWER: (U)No. ODNL on behalfofONClX.provided answers to questions about
the status ofits damage assessmenL The prosecution relayed those updates to the Court
verbatim because the prosecution was not inaposition to comment on the status ofthe
assessment untti it reviewed the assessment on 13 July 2012.
220. After the Court asked its questions on21 March 2012,did you contact ONCD^ about its
damage assessment prior to responding on 22 March 2012?
ANSWER: (U)Yes. After the Court asked its questions via emaiL the prosecution
contacted ODNL on behalfofONClX, and sought clarification. This conversation
occuned overthe telephone and ODNI conftrmed the previously provided StatemenL that
ONCIX has not produced any interim or ftnal damage assessmenL
221.

Ifyes, what did you ask7 What did ONCIX say7 Please provide documentation.
ANSWER: (U)Seeaboye^220

222. If yes.why was it necessary to reach out to ONCIX again since they had already given
you its response on6March 20127
ANSWER; (U) Because the prosecution was not inaposition to comment on the status
ofthe assessment untti it reviewed the assessment on 13 July 2012,it had to rely on the
infbrmation provided by ODNL on behalfofONClX. For each motions hearing, ftling,
or answer to the Court, the prosecution contacted ODNI to receive an update.
223.

If yes,whyaren'tthese entries on your Chronology7
ANSWER: (U) The prosecution'smaster chronology does not account for every single
action by the prosecution in this case; rather it is only an overview ofthe different
activities members ofthe prosecution team conducted onadaily basis, and includes some
specificity when practicaL

41

32984

224. If no,why did you teti the Court at oral argument that you had reached out to ONCIX
again prior to responding to the Court'squestions7
ANSWER: (U)Notapplicable
225. You claim that it was after the Court'sRuling onllMay 2012 regarding the
discoverability ofthe Department ofState damage assessment that you felt compelled to go back
to ONCIX to getONCIX to reassess its position as to whether it hadadraft. Why was this
necessaryin light ofONCIX'srepeated admissions that it hada"workingdraft"ora"draft"7
ANSWER: (U) On 23 March 2012. and based on the prosecution'sanswers to the
Court'squestions. the Court mled that the Department ofState draft assessment was to be
produced and did not mle that the ONCIX draft assessment has to be produced. After
litigation on the discoverability of drafts and onllMay 2012. the Court mled that the
Department ofState draft damage assessment was discoverable. Theprosecution
interpreted the ruling also to apply to the discoverability ofati draft documents, in
generaL regardless oftheir status of completeness. The prosecution immediately notifted
ONCIX ofits interpretation ofthis ruling to ensure compliance with its discovery
obligation and because the defense, in its Motion to Compel Discovery ^2 datedlOMay
2012. requested ati ONCIX records related to the accused.WikiLeaks. and/or damage
resulting from the charged offenses. It was the prosecution'sposition that ONCIX's
response would not answer the Court'sinquiry. Again, because ONCIX did not
authorize the prosecution to review its damage assessment untti 13July 2012. the
prosecution relied upon ODNl'sresponse to answer the Court'sinquiry.
226.

Did you and ONCIX have discussions about the discoverability of draft documents7
ANSWER: (U)Yes

227.

If yes. explain what these communications entailed and provide documentation.
ANSWER; (U) When ONCIX notifted the prosecution that its damage assessment was
in working draft form, the prosecution researched the issue and consulted with the
DepartmentofJustice. The prosecution explained the results of its research with ODNI
and ONCIX. The prosecution also discussed what is described above in ^225 about the
Court'smling concerning the Department ofState.

228. Is the version ofthe damage assessment that the Govemment disclosed to the Defense
stiti the latest version ofthe damage assessment7
ANSWER: (U)Yes
229. Is the version ofthe damage assessment that the Govemment disclosed to the Defense the
ftnal version ofthe damage assessment7
ANSWER; (U)Yes.
42

32985

230.

If noLwhen does ONCIX plan onftnalizingthe damage assessment7
ANSWER: (U)Notapplicable

231.

When did you ftrst request authority to view the ONCIX damage assessment?
ANSWER: (U) Since ftrst leaming that ONClXwas tasked with preparingadamage
assessment in February 2011. the prosecution informally requested authority to review
any individual assessments that contributed to the ONCIX assessmenL On 25 May 2011.
the prosecution submittedaformal Prudential Search Request to ODNI and ONCIX
which requested that the ONCIX authorize the prosecution to review./^^^^^//^. its
damage assessmenL On 14June 2011.the prosecution submitted an updated Prudential
SearchRequesttoODNl/ONCf^ On 140ctober 2011.ONCIX providedthe
prosecution with the contact infbrmation for each oftheftftysevengovemment
organizations contacted by ONCIX. Beginning February 2012. the prosecution contacted
each oftheftfty-sevengovemment organizations to request the individual assessments
submitted to ONCIX that contributed to ONCIX'sdraft damage assessmenL OnllMay
2012. the Court mled that the Department ofState draft damage assessment was
discoverable. Although the Court did not explicitly comment on the ONCIX draft
damage assessmenL the prosecution interpreted the mling also to apply to the
discoverability ofdraft documents, in generaL On24May 2012. the prosecution again
formally requested the authority to review ONCIX'sdraft damage assessmenL

232. According to your Chronology.it appears that you "requested authority to review the
ONCIX damage assessment" in February 2011. If you requested authority to view the damage
assessment in February 2011. why is it that over one year later, you claim that you did not know
that ONCIX hadadraft damage assessment7
ANSWER:(U)0n2February 2011.the prosecution metwith ONCIX to discuss the
damage assessment process. ONCIX notifted the prosecution ofits charter to preparea
govemment-wide damage assessment and that it sent letters to multiple govemment
organizations withaseries of questions designed to measure whaL if any.damage
resulted ftom the WikiLeaks releases. Onl8February 2011,the prosecution sought
assistance from ONCIX to retrieve the individual damage assessments ofthose
organizations from which ONCIX requested inpuL On 25 May 2011. the prosecution
submittedaformal Prudential Search Request to ODNI and ONCIXwhich requested that
the ONCIX authorize the prosecution to review./^/^^^//^. its damage assessmenL On 14
June 2011. the prosecution submitted an updated Prudential Search Request to
ODNI/ONCIX. After litigation relating to the discoverability ofdraft documents
concluded, the prosecution again formally requested the authorityto review ONCIX's
draft damage assessmenL The prosecution was ftrst authorized to review the classifted
ONCIX damage assessment on 13 July 2012. Untti that time, the prosecution relied upon
updates ftom ONCIX to answer the then-cunent status ofits damage assessmenL
233.

Was it your belief thatONClX simply did nothing in that one year period?
43

32986

ANSWER: (U) No
234.

When did you actually view the ONCIX damage assessment7
ANSWER: (U) 13 July 2012

235.

Why did you not view the ONCIX damage assessment earlier7
ANSWER: (U) The prosecution did not have the authority to review the ONCIX damage
assessment untti 13 July 2012.

236. The ONCIX damage assessment is not dated. Do you know the date ofthe damage
assessment7 If so.what is the date oftheONClX damage assessment7 [Ifthis information is
classifted. please provide an explanation and documentation to this effect].
ANSWER; (U) The prosecution does not know the date, but the defense reviewed the
ftnal version.
237. Does the Govemment consider the length ofthe ONCIX damage assessment to be
classifted7 Ifyes. please provide documentation. IfnoL please inform the Court ofthe length of
the ONCL^ damage assessmenL
ANSWER: (U) The prosecution does not know whether the length is classifted and the
length can be determined by counting the total pages. Although the defense reviewed the
ftnal damage assessmenL the prosecution has not reviewed the ftnal version.
238.

How many total hours did it take you to review the ONCIX damage assessment7
ANSWER: (U) On 13 July 2012. the prosecutionreviewed theONClX damage
assessment fbr approximately three hours. On3August 2012.the prosecution conducted
acursory review of the ONCIX damage assessment for approximatelyl5minutes to
verify proposed redactions and substitutions.

239.

When did you review the ONCIX damage assessment7
ANSWER: (U) 13 July 2012

240.

When did you produce the ONCIX damage assessment to the Defense7
ANSWER: (U) The damage assessment was made available fbr inspection on 23 August
2012 after the Court'sruling on the associated MRE 505(g) motion.

.^^^^/^/.^c^v^^
241.

When did youftrstmakearequest for Brady material from 0NC1X7
44

32987

ANSWER; (U) The prosecution ftrst formally requestedaPmdential Search Request for
responsive materiaL which included Brady materiaL ftom ODNI and ONCIX on 25 May
2011
242.

Why did you not contact ONCIX earlier to make the request fbr Brady material7
ANSWER: (U) From when the prosecution ftrst leamed about ONCIX'scharterto
prepareadamage assessment in January 2011untti the prosecution submittedaformal
request for material on 25 May 2011. the prosecution was leaming exactly what type of
infonnation existed and ftom whom that information should be requested. Itwas
necessary for the prosecution to leam what type ofinformation existed andftomwhich
organizations that infbrmation should be requested before submitting any Pmdential
Search Requests in this case. Otherwise, the prosecution would be sending its requests
blindly without any good faith basis that the respective govemment organization had any
records relating to the accused and/or WikiLeaks.

243.

Did you use the term Brady and/or R.C.M. 701(a)(6) in your request7
ANSWER; (U)Seeaboye^l33and241 242

244. Did you explain in this request that you were looking fbr mitigating evidence, both for
merits and fbr sentencing?
ANSWER; (U)Seeaboye^l34and241 242
245.

When did ONCIX provide you with Brady material7
ANSWER: (U) ODNI provided responsive material fbr inspection on9February 2012
which included ONCIX infbrmation. and the prosecution reviewed the damage
assessment onl3July 2012.

246.

How many documents did ONCIX provide you with7
ANSWER: (U) ODNI provided approximately 4.000 pages for review.which included
ONCIX infonnation.

247. Between the date that youftrstmadearequest for Brady material ftom ONCIX and the
time ONCD^ provided you with Brady materiaL did you contact ONCIX about expediting the
process7 Ifso.when7 What was said7 Please provide documentation.
ANSWER: (U)From25 May 2011untti 13 July 2012. theprosecution contacted ODNI
on behalfofONClX speciftcally more than 80 times. Communications with ODNI
consisted largely of requests to expedite the prosecution'sreview of any records
responsive to the prosecution'srequests dated 25 May 2011andl4June 2011,to include
the draft damage assessment and any individual assessments in the possession ofONCIX.
45

32988

248.

When did you review the ^ ^ ^ ^ material provided by 0NCD^7 Please provide dates.
ANSWER: (U)Seeabove^245

249.

How many hours collectively did it take you to review the Brady material?
ANSWER: (U) The prosecution spentatotal of more than 50 hours reviewing
documents responsive to the pmdential search requesL

250.

When did you disclose the Brady material ftom ONCIX to the Defenses
ANSWER: (U) The prosecution disclosed or made any discoverable infbrmation
available to the defense on 23 August 2012.

63 Agencies
251. When did you ftrst leam that part ofthe ONCIX damage assessment involved reaching
out and getting individual damage assessments ftom various agencies (hereinafter "the 63
agencies"^even though the Government now indicates thatthere are only 57 agencies)^
ANSWER:(U)0n2February 2011.the prosecution learned thatONCIX contacted
other government organizations to inquire whaL if any.damage resulted from the
WikiLeaks releases.
252.

When did you ftrst request access ftom ONCD^ to these individual damage assessments^
ANSWER: (U)0nl8Febmary 2011.the prosecution sought assistance ftom ONCIX to
retrieve the individual assessments ofthose government organizations ftom which
ONCD^ requested inpuL

253.

What did ONCIX teti you7 Please provide documentation.
ANSWER; (U) ONCIX notifted the prosecution that it would need authorization ftom
the other government organizations to retrieve those organizations'individual
assessments. ONCIX later infbrmed the prosecution that it would assist in retrieving
those letters submitted to each govemment organization. Ati documentation, if any.that
the prosecution has authority to provide or witi reference during the motions hearing has
been provided to the defense.

254. From your Response, you state that onl8February 2011.ONCIX informed you that it
would not be able to tum over the individual damage assessments it had received ftom the
agencies it had contacted and that "approval ftom the other govemment organizations was
necessary.since many ofthe individual assessments were classifted." Why did you not go to the
other agencies directly at this point?

46

32989

ANSWER: (U)Theprosecutionkeptworkingwith ODNI and ONCIX toobtain
approval to receive the infbrmation from them as one source ofati the information in
order to save time overati. At the time, and what proved to be tme later, the prosecution
attempting to contact more than 50 agencies individually would beavery difficult task
and it would be more efftcient to obtain the infbrmation directly from ONCIX.
255.

When did you ftrst request contact infbrmation for the individual agencies from 0NC1X7
ANSWER: (U)0nl8Febmary 2011.the prosecution sought assistance from ONCIX to
retrieve the individual assessments ofthose government organizations from which
ONCIX requested inpuL On21April 2011.the prosecution requested copies ofthe
letters ONCIX disseminated to each non-Department ofDefense agency. OnllOctober
2011. the prosecution requested the names and contact infbrmation fbr each organization.

256. What did you do to get the individual damage assessments ftoml8Febmary2011toll
October 20117
ANSWER:(U) Duringthis time, the prosecution worked with ODNI and ONCIX to
obtain the documents from ONCIX. even though they initially did not provide them.
Betweenl8Febmary2011andllOctober 2011.the prosecution continued to work with
them to negotiate an efftcient resolution to obtaining the infbrmation.
257. You state in your Response that you didn'treceive the contact information fbr the various
agencies untti 140ctober 2011.but that you attempted to contact the different organizations on
110ctober2011. Howisthispossible7
ANSWER: (U) Prior to asking fbracontactlisL the prosecution reached out to other
government organizations for contact information of others and started cold calling some
organizations. This was not effective.so the prosecution requestedacontact list ftom
ONCIX
258.

When did you ftrst receive the agencies'contactinformation7
ANSWER; (U)Seeaboye^23L

259.

Who did you receive it from7
ANSWER: (U) The prosecution received the contact infbrmation from the Offtce ofthe
General Counsel(OGC)atODNL

260.

How did you receive it7
ANSWER: (U)ThroughemaiL

261. On what date did you havealist of ati the agencies that preparedadamage assessment
forONCIX7
47

32990

ANSWER: (U) The prosecution received the complete list ofati the government
organizations contacted by ONCIX on 140ctober 2011.
262. Was it possible to get phone numbers or addresses for these agencies absent ONCD^
providing them to you?
ANSWER; (U) Not for the majority of agencies. The list provided the speciftc offices
within the agencies and Executive Departments that handled their own assessments and
there was no readily available or accessible source that provided the information,
especially considering most agencies did not have fulltime offices that handled these
types ofissues.
263. Did you reach out to ONCIX betweenl8February2011andllOctober2011to request
phone numbers/contact information?
ANSWER; (U)Yes.
264

Ifyes. whatdid ONCIX say7
ANSWER: (U) ONCIX notifted the prosecution that it would assist the prosecution in
retrieving the letters sent to each govemment organization, but that the prosecution would
need authorization from each government organization to retrieve the respective
individual assessmenL

265. How many times did you request contact information ftom ONCIX? Pleaseprovide
dates.
ANSWER: (U) The prosecution reached out to ONCIX. ataminimum. on21 April
201413 June 201Ll^J^ly201Land25August201L
266. If you had contact information fbr the individual agencies prior tollOctober 2011.why
did you not contact these agencies earlier?
ANSWER: (U)Seeabove^231and262
267.

Which agencies did you contact on or aboutllOctober 20117

268.

What did you ask them for7
ANSWER: (U) The prosecution requested./^/^^^//^. to review any damage assessment
ftom the above govemment organizations.
48

32991

269. Didtheyproyideit7
ANSWER; (U)Yes
270

When7

271.

Who speciftcally contacted these agencies7 Please provide names.
ANSWER; (U) MAJ Fein on behalfofthe prosecution.

272. According to your Response. onl8February 2011."the prosecution sought assistance
from ONCIX to retrieve the individual damage assessments ofthose government organizations
ftom which ONCIX requested inpuL ONCIX advised the prosecution that approvalftomthe
other govemment organizations was necessary.since many ofthe individual assessments
themselves were classifted." On 14 July 2011. "ONCIX notifted the prosecution that it would
need authorization from the other govemment organizations to retrieve those organizations'
individual assessments." Why was there no progress on this issue for5months7
ANSWER: (U) There was progress on this issue during theseftvemonths. At the time,
the prosecution was stiti leaming exactly whattype ofinformation existed to determine to
whom it would send Prudential Search Requests, pursuant to its discovery obligations.
These discussions also culminated in the additional charges being preferred in March
2011. In April 2011.the prosecution was informed that ONClXwas working towards
retrieving the contact information for each govemment organization. In May 2011. the
prosecution memorialized its Prudential Search Request fbr any information relating to
the accused and/or WikiLeaks. In June 2011.the prosecution metwith ONCIX to discuss
its Prudential Search RequesL Also, in June 2011, the prosecution submitted an updated
Prudential Search Request to ODNI/ONCIX. Additionally.as described above, the
prosecution kept working with ODNI and ONCIX to obtain the assessments because if
they could obtain approval to disclose ati the individual assessments to the prosecution,
then we would receive the entire batch, rather than having to go to individual agencies
throughout the United States GovemmenL
273. On what date did you leam that you needed to go to the agencies directly,rather than go
through ONCIX to retrieve the individual damage assessments?
ANSWER; (U)AroundllOctober 2011.the prosecution discussed with an ODNI
attomey that ONClXwould likely not be able to obtain the authority to disclose the
assessmenL so the prosecution decided not to wait any longer to obtain the individual

49

32992

assessments with the assistance of ONCIX, so it requested the contact information for the
individual agencies and at that point made the decision to go forward independently.
274.

How did you leam this7 Please provide documentation.
ANSWER: (U) See above #273.

You claim that on or about 1 November 2011. "the prosecution began to reach out to individuals
on the ONCIX contact list in order to obtain copies of the damage assessments."
275.

Which specific agencies did you contact on or about 1 November 2011?
ANSWER: (U) On or about 1 November 2011, the prosecution contacted the Federal
Bureau of Investigation and the Dmg Enforcement Agency.

276.

What did you ask them for7
ANSWER: (U) The prosecution requested any individual assessment provided to
ONCIX in response to its request.

277.

Did they provide it7
ANSWER; (U) Yes.

278.

When?
ANSWER: (U) The prosecution conducted a cursory review of the FBI impact statement
in preparation for its meeting with the defense on 2 November 2011. and reviewed the
impact statement for discovery purposes on 18 April 2012. On 5 March 2012. the
prosecution reviewed the DEA damage assessment.

279.

Who specifically contacted these agencies? Please provide names.
ANSWER; (U) MAJ Fein contacted these agencies. On 18 April 2012. CPT Overgaard
and CPT von Elten reviewed the FBI impact statement. On 5 March 2012. MAJ Fein
reviewed the DEA damage assessment.

In an email from SGT Bradley on 27 Febmary 2011 to one of the agencies, he states:
Although we have been coordinating with NCIX/ODNI for the past year, just two
weeks ago they determined that we cannot review copies ofyour organization's
documents in their possession, and we must directly go toyour organization to
coordinate a review.

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280. How could you have discovered "just two weeks ago"(i.e. early Febmary2011)that you
had to go to the agencies direetly.but have contacted the agencies directly on or aboutl
November 20117
ANSWER; (U) The referenced emati is dated 27 February 2012. The emati was drafted
with the intent to most effectively obtain information ftom the organizations. Priorto
sending the emaiL the prosecution requested the individual assessments again from
ONCIX and they conftrmed they could not provide the assessments.
As ofthe date ofthe ftrst 802 session on 23 Febmary 2012:
281.

What agencies had you contacted7
ANSWER: (U)(l)Bureau of AlcohoLTobacco.Firearms, and Explosives; (2)
DepartmentofEducation; (3) Department ofEnergy; (4) Department ofHealth^Human
Services;(5) Department ofHousing^UrbanDeyelopment;(6) Department of
Transportation; (7) Department ofVeteran'sAffairs; and (8)TennesseeValley Authority

282.

What did you ask these agencies fbr7
ANSWER: (U) The prosecution requested any documents provided toONClX in
response to their requesL

283.

What did they provide, and when7
ANSWER: (U) The fbllowing govemment organizations provided any such documents
on the following dates: (l)Bureau of AlcohoLTobacco. Firearms, and Explosives(12
April 2012); (2) Department ofEducation(17February 2012); (3) Department ofEnergy
(21 May 2012);(4) Department ofHealth^HumanSeryices(19April 2012); (5)
Department ofHousing^Urban Development (28 February 2012);(6) Department of
Transportation (28 Febmary 2012); (7) Department ofVeteran'sAffairs (22 March
2012); and (8)Tennessee Valley Authority (9 April2012).

284.

When did you ftrst contact the Department of Agriculture7
ANSWER: (U)24Febmary 2012

285. If after 23 Febmary 2012.why did you teti the Court on 23 Febmary 2012 that you
already contacted the Department ofAgriculture and they had no Brady7
ANSWER; (U) The prosecution never represented to the Court that it had actually
contacted the Department ofAgriculture.The prosecution notifted the Court and defense,
starting at the ftrstRCM 802 conference that it was reaching out to ati organizations
contacted byONClX. The prosecution used the Department ofAgriculture as an
example to demonstrate the breadth of discovery issues with various organizations.

51

32994

286.

When did you receiveadamage assessment from the Department of Agriculture7
ANSWER; (U) The prosecution received the individual assessment from the Department
ofAgriculture on 30 March 2012.

287.

Does the damage assessment contain Brady material (i.e. tends to reduce punishment)7
ANSWER: (U)Yes

288. You claim that in Febmary 2012. you taskedaparalegal to track down the damage
assessments. Please providealist of each agency that the paralegal contacted ftom February
2012onward and when.
ANSWER: (U) This was provided as part ofthe due diligence ftling.
289. Ifany agency is duplicative ofan agency already contacted prior to Febmary 2012,
please provide an explanation as to why the paralegal needed to reach out to the agencyasecond
time.
ANSWER: (U) Prior to receiving the contact information for each organization
contacted by ONCIX, the prosecution was cold-calling the applicable general counsel's
offtce. That effort, though necessary to try to expedite discovery.was largely
unsuccessfuL In February 2012. after the prosecution reviewed the actual contact list
ftom ONClX.aparalegal began contacting the speciftc point of contact provided by
ONCIX.
290. From the day the paralegal send out the ftrst emati to the date that he received the last
damage assessmenL how many days elapsed7
ANSWER: (U) The paralegal began contacting the govemment organizations on or
about 14February 2012. Ofthose govemment organizations contacted by the paralegal
and with the assistance ofatrial counseL the prosecution received the ftnal individual
assessment onlOJuly 2012.
291. How many total manpower hours did it take the paralegal to contact these agencies and
collect the documentation7
ANSWER: (U) From 14Febmary 2012 untti lOJuly 2012. itisestimatedthatthe
paralegal dedicated to this task spent approximately five hours per work week towards
this task.which included corresponding with the applicable govemment offtcials.
retrieving any individual assessments.and tracking the status ofany requests. Ouring
this period, it is estimated that the trial counsel dedicated to this task spent approximately
two hours per work week towards this task.which included conesponding with the
applicable government offtcials. responding to any requests ftom those organizations, and
reviewing any individual assessments. Processing the disclosure ofany discoverable
material to the defense is not included in these estimates.
52

32995

292.

Why could you not have appointedaparalegal to complete this job one year earlier?
ANSWER; (U) The only infonnation the prosecution had in Febmary 2011was that
ONClXwas chartered to conductadamage assessmenL Seeabove#231.

293. If you began reaching out to agencies in October/November 2011.why was thereathree
month lag between that time and the time it you taskedaparalegal to reach out to these agencies
in late February 20127
ANSWER: (U) Based onadefense requesL the prosecution presented its case-in-chief,
both on the merits and presentencing. to the defense on8November2011and again on
18November2011. The prosecution presented two PowerPoint presentations totaling
approximately 585 slides. These defense-requested presentations absorbed ati resources
during that time. Afterwards, the entire prosecution team was needed to prepare for the
Article 32 investigation which took place ftoml6-22 December 2011.
294. Did you have knowledge(actual or constructive)prior to 23 February 2012 that any of
the individual damage assessments had concluded that tittle to no harm was done to the
particular agency7
ANSWER: (U)Yes. but only in very limited circumstances. The evidence at the time
and today is overwhelmingly aggravating.
295. If yes. how did you come to have that knowledge7 (e.g. did you review the damage
assessment; did ONCIX teti you. etc.)
ANSWER: (U) The prosecution reviewedadamage assessmenL
296.

If yes, why did you teti the Court that you had found no Brady infbrmation7
ANSWER: (U) The prosecution did not teti the Court that it has not fbund any Brady
infbrmation. Instead, the prosecution told the Court it had not found any exculpatory
information during its searches.

297. Please providealist of each agency on the ONCIX list that you contacted.when you
contacted them.when they provided responsive documentation.when you asked fbr permission
to disclose that responsive documentation, and when you disclosed that responsive information
to the Defense.
ANSWER; (U) This was provided as part ofthe due diligence tiling.
298. It appears ftom the Chronology that there isaseveral month time lag between the time
you asked for the damage assessment ofthese agencies and the time you asked for permission to
disclose the damage assessment to the Defense? Why did you not ask fbr permission to disclose
the damage assessment to the Oefense at the same time as you asked for the damage assessment?
53

32996

ANSWER; (U) The prosecution did not request authority to discloseadamage
assessment untti afterticonftrmed the damage assessment existed and untti it reviewed
the damage assessment for discoverable material and detennined there was discoverable
material contained within the documenL
HODAMemo
299.

When did you complete drafting the original HQDAmemorandum7
ANSWER; (U) The prosecution sent its Prudential Search Request to OoD on 25 May
2011and again on6June 2011.

300. Once you completed drafting the original HQDAmemorandum.who did you give it to7
When7
ANSWER: (U) The prosecution sent its Prudential Search Request to OGC. DoD.
301.

When was the original HQDAmemorandum sent out to HQOA7 Whosentitout7
ANSWER: (U)On29 July 2011.OGC. OoDdisseminatedthe prosecution'sPmdential
Search Request to Headquarters. Department ofthe Army (HQDA).

302. Did you request in the original HQDAmemorandum that HQDAsearch fbr Brady
material7
ANSWER: (U) The Prudential Search Request submitted to DoD included broad
language that would include any Brady materiaL Seeaboye#134.
303.

Didyou use eitherthe term "Brady" orRCM701(a)(6)7
ANSWER: (U)Seeaboye#133and302.

304. Why did you wait untti fhis date to send outarequestthatHQOAsearch for Brady
material7
ANSWER: (U) In March 2011. additional charges were preferred against the accused.
In Aprti 2011, WikiLeaks began releasing purported DoD documents and continued
releasingthem through 2011. During this time, the prosecution was trying to understand
what information existed and how best to assist CID in its ongoing investigation. The
prosecution understood the importance ofpreserving any discoverable material as soon as
possible and. in consultation with the Oepartment ofJustice.began preparingaPmdential
Search Request to capture this intenL
305. According to your response, you had DOD involved in the HQDAmemorandum. Why
was this necessary7
54

32997

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
USE OF FORM - Use this form and MCM, 1984,
Appendix 14, will be used by the trial counsel and
the reporter as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a verbatim record is prepared. Air
Force uses this form and departmental
instructions as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a summarized record is authorized.
Army and Navy use DD Form 491 for records of
trial in general and special court-martial cases in
which a summarized record is authorized.
Inapplicable words of the printed text will be
deleted.

8. Matters submitted by the accused pursuant to
Article 60 (MCM, 1984, RCM 1105).

COPIES - See MCM, 1984, RCM 1103(g). The
convening authority may direct the preparation of
additional copies.

12. Advice of staff judge advocate or legal officer,
when prepared pursuant to Article 34 or otherwise.

ARRANGEMENT - When forwarded to the
appropriate Judge Advocate General or for judge
advocate review pursuant to Article 64(a), the
record will be arranged and bound with allied
papers in the sequence indicated below. Trial
counsel is responsible for arranging the record as
indicated, except that items 6, 7, and 15e will be
inserted by the convening or reviewing authority,
as appropriate, and items 10 and 14 will be
inserted by either trial counsel or the convening or
reviewing authority, whichever has custody of
them.

13. Requests by counsel and action of the
convening authority taken thereon (e.g., requests
concerning delay, witnesses and depositions).

1. Front cover and inside front cover (chronology
sheet) of DD Form 490.
2. Judge advocate's review pursuant to Article
64(a), if any.
3. Request of accused for appellate defense
counsel, or waiver/withdrawal of appellate rights,
if applicable.
4. Briefs of counsel submitted after trial, if any
(Article 38(c)).
5. DD Form 494, "Court-Martial Data Sheet."

9. DD Form 458, "Charge Sheet" (unless included
at the point of arraignment in the record).
10. Congressional inquiries and replies, if any.
11. DD Form 457, "Investigating Officer's Report,"
pursuant to Article 32, if such investigation was
conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

14. Records of former trials.
15. Record of trial in the following order:
a. Errata sheet, if any.
b. Index sheet with reverse side containing
receipt of accused or defense counsel for copy of
record or certificate in lieu of receipt.
c. Record of proceedings in court, including
Article 39(a) sessions, if any.
d. Authentication sheet, followed by certificate
of correction, if any.
e. Action of convening authority and, if appropriate, action of officer exercising general courtmartial jurisdiction.
f. Exhibits admitted in evidence.

6. Court-martial orders promulgating the result of
trial as to each accused, in 10 copies when the
record is verbatim and in 4 copies when it is
summarized.

g. Exhibits not received in evidence. The page
of the record of trial where each exhibit was
offered and rejected will be noted on the front of
each exhibit.

7. When required, signed recommendation of
staff judge advocate or legal officer, in duplicate,
together with all clemency papers, including
clemency recommendations by court members.

h. Appellate exhibits, such as proposed instructions, written offers of proof or preliminary
evidence (real or documentary), and briefs of
counsel submitted at trial.

DD FORM 490, MAY 2000

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