Title: Volume FOIA 104

Release Date: 2014-03-20

Text: 33662

Volume 104 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

33663

H.EVENIFDETERMINEDRELEVANT,OVERCLASSIFICATIONINFORMATION
SHOULD BEEXCLUDED AS ITS PROBATIVEVALUEISOUTWEIGHEDBYITS
PREJUDICE.
Ifthe Court determines that overclassification information could he tangentially relevant
to the charged offenses, it should be excluded both because its probative value is substantially
outweighed bythe dangerofissueconfirsion as detailed above, and also to avoid undue wastcof
time Sec MRE 403;seealso United StatcsvBerrv.61ML9L95(CAAF 2005) (^^In
conducting the M.RE.403 halancingtestamilitary^udgc should consider the following factors:
the strength ofthe proofofthe prior act; the probative weight ofthe evidence; the potential to
present less prejudicial evidence; the possible distraction ofthe fact-finder; the time needed to
prove the prior conduct; the temporal proximity ofthe prior event; theftequcncyofthe acts; the
presence ofany intervening circumstances; and the relationship between the partics^^).
The defense can appropriately question the OCAs about the procedural basis f:or their
classifications ofthe charged inf:ormation, and the subject-matter experts about the harm its
release could cause, as these issues are relevant to the matters at issue in the case at bar. The
discussion ofthe classification ofother documents would unnecessarily decrease the efficiency
ofan already time-consuming and confiising process. All ofthe factors discussed in Berry
dictate that the infiormation should not he admissible. The general overclassification inf:ormation
offered bythe defense points to no specific evidence nor has any relationship to the case at bar.
The general overclassification information, therefcire, only serves asadistraction for the factfinder.
IH. THE COURTSHOULDMAI^E THE DETERMINATION ONWHETHER ORNOT
TO PRECLUDE OVERCLASSIFICATION EVIDENCE IN ADVANCE OFTRIAL
The Court gains considerable advantages hy determining in advance whether or not
general overclassification evidence is irrelevant and inadmissible during the trial. The possibility
ofirrelevant information being discussed is much more likely withoutapredetermination of
relevancy on this controversial issue. See, e.g.,United Statesv.HuetVaughn,43 M.J.105
(CAAF 1996)(containing numerous examples ofthe Accused testifying to irrelevant matters.
Trial Counsel objecting, and the Judge sustaining the objections). Defining these issues before
trial would certainly be more efficient not only by precluding discussion ofirrelevant evidence,
which will distract ftom the facts at issue, hut also by preventing the litigation of extraneous
issues during an already presumably lengthy trial. Inaddition,aprcdeterminationofrelevancyis
more efficient in that it avoids producing and calling irrelevant witnesses.
CONCLUSION
Ageneral claim of overclassification is irrelevant to all charged offenses and all
cognisable defenses. None ofthe evidence the defense has produced has related to
overclassification ofthe charged documents or databases, and the defense has not produced any
evidence that the accused was aware ofany overclassification involving the charged documents
or databases. The prosecution, theref:ore, respectfully requests the Court grant the prosecution^s
motion in limine and preclude the defense ftom raising evidence ofovcrclassification in the

33664

merits and presentcnctngportions ofthe trial 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 trial.

ANGELMOVE^AARD
CPT,JA
AssistantTrial Counsel
Icertify tbatlserved or caused to be servedatrue copy ofthe above on Defense Counsel
via electronic mail, on 14December 2012.

ANGELMOVERGAARD
CPT,JA
AssistantTrial Counsel

33665

UNITED STATES OF AMERICA

Manning,BradleyE.
PFC, U.S.Army,
HHCU.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

Prosecution Request
for Leave until lOJanuary 2013
to Submit its Plan for Storing
any Appellate Exhibits not
Accompanying tbe Record ofTrial
1^ December 2012

The United States respectlully requests leave of the Court untillOJanuary 2013 to submit its
plan for storing any Appellate Exhibits not accompanying the Record ofTrial in one place under one
custodian withaprocedure for systematic reviews by the United States to ensure accountability
through any appellate review. During the Article 13motion hearing, the United States identifieda
secure facility which agreed to store such records, pending approval ftom each ofthe applicable
equity holders. Yesterday,the United States leamed that one of the equity holders would not agree to
store its records at tbat facility. Since then, the United States has received tentative approval to store
all records atasecond secure facility owned byagovemmentorgani;^ation outside the Department of
Defense. All applicable equity holders are seeking proper clearance for such records to be stored at
this facility.
The United States requests additional time to receive final approval to store such records at
this facility, to receive clearance ftom each applicable equity holder to store its records at this
facility,to receive input from any appellate office(specifically,theOfItce ofthe Clerk ofCourt,
United States Army Court ofCriminal Appeals), and to ensure all security measures(e.g.,security
clearances, read-on requirements, access roster limitations)are properly considered and incorporated
into the plan.
This request will not necessitateadelay in the proceedings because the continued effort to
secure this plan will occur concurrently with the scheduled pretrial motions process. There will be
no prejudice to the defense.

JHUNTER 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 onl8December 2012.

J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel

APPELLATE E X H I B I T ^
PAGE REFERENCED: ^
^
PAGE
OF
PAGES

33666

UNITED STATES OF AMERICA
V.

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

Scheduling Order

DATE: 20 December 2012

1. The Court is currently scheduling Article 39(a) sessions with the following default schedule at
the request ofthe parties: two weeks for parties to file motions; two weeks for parties to file
responses; five days for parties to file replies; and one week for the Court to review all pleadings
before the start ofthe motions bearing. The time for filing replies was added after the first Article
39(a) session on 15-16 March 2012 because the Court received reply briefs tbe 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 February 2012 - 16 March 20121
b. Legal Motions, excluding Evidentiary Issues (29 March 2012 - 26 April 2012)
c. Legal Motions flO Mav 2012 - 8 June 20121
d. Interim Pretrial Motions (2 June 2012 - 25 June 2012^
e. Pretrial Motions (7 June 2012 - 20 July 2012)
f. Pretrial Motions (20 Julv 2012 - 30 August 2012)
g. Pretrial Motions (24 August 2012 -18 October 2012)
h. Pretrial Motions (26 September 2012 - 2 November 20121
i.

Pretrial Motions (19 October 2012 -12 December 2012)

j.

Pretrial Motions (16 November 2012 -11 January 2013)
(A)
(B)
(C)
(D)

Filing: 16 November 2012
Response: 30 November 2012
Reply: 12 December 2012
Article 39(a): 8-11 January 2013

(I) Additional Requests for Judicial Notice

APPELLATE EXHIBIT^.^S
PAGE REFERENCED:
PAGE OF
PAGES

33667

(2) Motion in Limine (Motive)
(3) Goyemment Response to Defense Interrogatories to Original Classification
Authorities for Speedy Trial
(A) Filing: 12 December 2012
(4) Disclosure of RCM 914 Material (based on Supplemental Govt Witness List and
Defense Witness List)
(A) Date: 12 December 2012
(5)

Discussion of Storing all AEs in a Centralized Location
(A) Filing: 10 January 2013

(6) Defense Witness List Litigation'
(A) Govemment Objection to Defense Witnesses (Initial and Supplemental): 16
November 2012
(B) Defense Motion to Compel Production: 23 November 2012
(C) Govemment Response: 12 December 2012
(D) Defense Reply: 17 December 2012
(7) Government Motion in Limine (Over-classification)
(A) Filing: 14 December 2012
(B) Response: 28 December 2012
(C) Reply: 4 January 2013
(8) Govemment List o f a l l Classified Information it intends to Request a Closed
Session (Grunden)
(A) Filing: 10 January 2013
(B) Response: 24 January 2013
(9) Government Proposed Procedures for Closing Sessions (Grunden)
(A) Filing: 10 January 2013
(B) Response: 24 January 2013
(10) Notice of Government Objections to Defense Use of Classified Information and
Government Proposed Altematives to Defense Use of Classified Information
(A) Filing: 10 January 2013
(B) Response (to proposed altemative): 24 January 2013

' 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.

33668

(11) Notice of whether the Government will Request the Grunden Article 39(a) be an
in camera Proceeding, in whole or in part, IAW MRE 505(i)^
(A) Filing: 10 January 2013
(12) Joint Proposal for Additional LIOs, ifany
(A) Filing: 11 January 2013
CALENDAR A - If Defense files a motion to compel "OCA " testimony
k. Pretrial Motions (28 December 2012-17 January 2013)
(A) Defense Filing: 28 December 2012
(B) Govemment Response: 11 January 2013
(C) Article 39(a): 16-17 January 2013
(1) Defense Motion to Compel Witnesses (Based on "OCA" Interrogatories)^
I. Pretrial Motions (5-8 Febmary 2013)
(1) Defense Motion for Speedy Trial, including Article 10 Argument, including any
testimony of witnesses compelled based on the 17 January 2013 Article 39(a)
(A) Article 39(a): 5-8 February 2013
(2) Government Disclosure to Defense of any Alternatives of Classified Information
in lieu of Closing the Courtroom'*
(A) Disclosure: 8 February 2013
(B) Response: 15 February 2013
m. Pretrial Motions (24 January 2013- 22 Febmary 2013)
(A)
(B)
(C)
(D)

Filing: 24 January 2013
Response: 7 February 2013
Reply: 12 February 2013
Article 39(a): 19-22 February 2013

(1) Providence Inquiry

^ This Article 39(a) is currently scheduled to occur on either 19-22 February 2013 (Calendar A) or 5-8 February 2013
(Calendar B),
^ If the Court does not compel testimony, then Calendar B shall be followed, and Speedy Trial oral argument will
occur during this motions hearing.
* Alternatives include, but are not limited to stipulations; use of code words or special names; use of screens,
disguises, and code names for classified witnesses; use of electronic imagery visible only to cleared trial participants
and not the public; the "silent witness" rule; and syllabi or reference indexes.
3

33669

(2) Supplemental Government Witness List (if necessary)
(A) Filing: 24 January 2013
(3) Grunden Hearing for Government Classified Information
(4) Litigation Concerning MRE 505(h) and MRE 505(i) (If not previously resolved)
(5) Government Notification of Security Clearances for Defense Witnesses (if
necessary)
(A) Filing: 7 February 2013
(B) Response: 12 February 2013
n. Pretrial Motions (1-15 March 2013)
(A) Filing: 1 March 2013
(B) Response: 8 March 2013
(C) Article 39(a): 13-15 March 2013
(1) Grunden Hearing for Defense Classified Information
(2) Completion of Security Clearance Checks for Witnesses (as necessary)
(3) Government Notice of Alternatives of Classified Information in lieu ofClosing
the Courtroom
(A) Filing: 8 March 2013
o. Trial bv MJ Alone (18 March 2013 - 26 April 2013)
Trial: 18 March 2013-26 April 2013
CALENDAR B - I f Defense does NOT file a motion to compel "OCA " testimony
k. Pretrial Motions (11 January 2013 -17 January 2013)
(1) Defense Motion for Speedy Trial, including Article 10 (Argument Only)
(A) Article 39(a): 16-17 January 2013
L Pretrial Motions (10 January 2013-8 February 2013)
(A) Filing: 10 January 2013
(B) Response: 24 January 2013
(C) Reply: 29 January 2013
(D) Article 39(a): 5-8 February 2013
(I) Providence Inquiry

33670

(2) Supplemental Government Witness List (if necessary)
(A)Filing:10January2013
(3) Grunden HearingforGovernmentClassified Information
(4) Litigation ConcernmgMRE505(h)andMRE505(i)(ifnotpreyiouslyresolyed)
(5) Govemment Notification ofSecurity Clearances for Defense Witnesses (if
necessary)
(A) Filing: 24 January 2013
(B) Response: 29 January 2013
(6) Govemment Disclosure to Defenseofany Alternatives ofdassifiedinformation
In lieu ofClosing the Courtrooms
(A) DiscIosure:8February2013
(B) Response: 15 February 2013
m.PretrialMotions(13Fehruary2012-lMarch2013)
(A) Filing:13February2013
(B) Response: 20 February 2013
(C) Article 39(a): 27February IMarcb20l3
(1) Grunden Hearing for Defense Classified Information
(2) Completion of Security Clearance Checks for Witnesses (as necessary)
(3) Government Notice of Alternatives of Classified Information in lieu of Closing
the Courtroom
(A) Filing: 20 February 2013
n. TrialhyMJAIone(6March2013 17April2013)
Triah6March20I3 17April2013
SoOrderedthi^iB^yof^^^^.^^^ 201^

DENISERLfl^D
COL,JA
ChiefJudge, 1^^ Judicial Circuit
^Alternatives include, but are not limited to stipulations; use of code words or special names; use of screens,
disguises, and code names fbr classified witnesses; use ofelectronic imagery visible only to cleared trial participants
and not the public; the "silent witness^ rule; and syllabi orreference indexes.

33671

UNITED STATES OF AMERICA
1 Prosecution Response
to Defense MRE 505(h)(1) Notice
on Updated Prosecution Witness List
Dated 5 November 2012

V.

Manning, Bradley E.

PFC, U.S. Army,

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

21 December 2012



The United States reviewed the Defense MRE 505(h)(1) Notice on Updated Prosecution
Witness List dated 5 November 2012 (hereinafter "Defense Notice"). Except as articulated
below, the United States does not object to the Defense Notice insofar as the defense does not
elicit "Top Secret" or "Sensitive Compartmented Information" from any of the witnesses.

The United States respectfully requests this Court accept the below clari?cation and, with
respect to the below objections, preclude the defense from questioning the witnesses named in
I.B. -18 regarding the information identi?ed in the objections. This response contemplates
changes made to the Govemment?s witness list on 2 December 2012, in the Updated Prosecution
Witness List as well as the Defense Notice Under MRE 505(h), dated 14 December 2012.

I. RESPONSES TO THE DEFENSE MRE 505(h)(1) NOTICE
A. Clarification

The United States does not object to the defense notice for Mr. Mark Johnson (Defense
Notice but clari?es that the defense should be discussing the speci?c content of ?Mr.
Johnson's forensic reports? vice ?Mr. Manning?s forensic reports.?

B. Objections

For the reasons stated below, the United States objects to the defense eliciting classi?ed
information from the following witnesses during pre-trial interviews:

1. Mr. Vann Van Diepen (Defense Notice The United States no longer intends to
call this witness and, therefore, objects to the defense questioning him on any classi?ed
information.

2. AMB Kenneth Gross (Defense Notice The United States no longer intends to
call this witness and, therefore, objects to the defense questioning him on any classi?ed
information.

3. Mr. Matthew Hosburgh (Defense Notice The C3 document is not classi?ed (see
BATES 412546-412552), and the United States does not intend to elicit classi?ed information
from the witness.

APPELLATE EXHIBIT 4/ 551

PAGE

..


PAGE

33672

4. Mr. Adrian Lamo (Defense Notice Mr. Lamo is not a United States
Government employee nor does he possess a security clearance. Portions of the chat contain
classi?ed information because the accused compromised the information while discussing it with
Mr. Lamo; however, the United States does not intend to elicit any classi?ed infomiation from
Mr. Lamo. The defense did not provide MRE 505(h) notice for Mr. Lamo on their witness list.
dated 26 October 2012 even though he is a defense witness as well. If the defense wants to elicit
classi?ed information from the witness, it must provide more specificity in its notice.

5. CW5 Jon Larue (Defense Notice The content of the Apache Video is not
classi?ed, and the United States does not intend to elicit any classi?ed information from CW5
Larue.

6. CPT Steven Lim (Defense Notice The United States only objects to the defense
discussing classi?ed information with this witness regarding the impact of the Accused's
misconduct on the S2 shop. The United States does not intend to elicit any classi?ed
information regarding the impact of the Accused's misconduct on the S2 shop from this witness.



7. (Defense Notice The United States does not intend to
elicit any classi?ed information from this witness. He is a chain of custody witness and cannot
discuss the content of the four ?les.

8. Mr. Kin Moy (Defense Notice The United States no longer intends to call this
witness and, therefore, objects to the defense questioning him on any classified information.

9. (Defense Notice The United States does not intend to
elicit any classi?ed information from this witness.

IO. CW4 Ronald Nixon (Defense Notice The United States does not elicit any
classi?ed information from this witness.

11. (Defense Notice The United States does not intend elicit
any classi?ed information from this witness. He is a chain of custody witness and cannot discuss
the content of the four ?les.

12. Lt Col Robert Pope (Defense Notice The United States no longer intends to
call this witness and, therefore, objects to the defense questioning him on any classi?ed
information.

13. LTC Rodney Roberts (Defense Notice The United States no longer intends to
call this witness and, therefore, objects to the defense questioning him on any classi?ed
information.

14. (Defense Notice The United States does not intend to
elicit any classi?ed information from this witness. He is a chain of custody witness and cannot
discuss the content of the four ?les.

33673

15. (Defense Notice The United States does not intend to
elicit any class: ie in ormation from this witness. He is a chain of custody witness and carmot

discuss the content of the four ?les.

I6. (Defense Notice The United States does not intend to
elicit any classi?ed information from this witness. He is a chain of custody witness and cannot
discuss the content of the four ?les.

I7. AMB Shari Villarosa (Defense Notice The United States no longer intends to
call this witness and, therefore, objects to the defense questioning her on any classi?ed
information.

18. Ms. Florinda White (Defense Notice The United States does not intend to
elicit any classi?ed information from this witness.

CONCLUSION

The United States respectfully requests this Court accept the clari?cation and preclude
the defense from questioning the witnesses named in l.B.l-18 regarding the information

identi?ed in the objections.

AN MORR
PT, JA

Assistant Tn'al Counsel

I certify that I served or caused to be served a true copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 21 December 2012.

tl?rssw

CPT, A
Assistant Trial Counsel

33674

UNITEDSTATESOF AMERICA

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

GOVERNMENTNOTICE
OFINABILITVTOCOMPLY
WITHPARAGRAPH2cOF
COURTSCHEDULINGORDER
DATED11DECEMBER2012
21 December 2012

1. OnllDecemher 2012, after consultation with the parties to this courtmartial, the Court
publishedaschcduling order detailing the timeline of submissions relating to the use of classified
information during the court-martial.
Appellate Exhibit CDXLIV. On 20 December 2012,
the Court, in response to the Govemmcnt^sinquiry,notificd the parties that paragraph 2c ofthe
Court^sScheduling Order requires the Government to provide notice of whether it objects to the
defense^stoTot^oscd useof classified infiormation in all defense filings to date hylOJanuary
2013.
Enclosure. Paragraph 2c also requires the Govemment to propose specific
altematives to closure of the Court f:or consideration of classified infiormation the defense intends
to use during the court-martial, in the event the Govemment does not object to the relevance and
necessity ofthe infiormation.
paragraph 2c and 3b of Appellate Exhibit CDXLIV.
2. At this time, the Govemment is unable to comply with paragraph 2c ofthe Court Scheduling
Order because the defense has failed to provide the requisite specificity in its Military Rule of
Evidence (MRE) 505(h) filings to date, and has acknowledged as much. ^^^,^.^.,paragraph4of
the Defense Notice under MRE 505(h), dated 14Dcccmhcr2012(^^Thc Defense will provide hy
separate classified filing with the requisite specificity under MRE 505(h) that we intend to elicit
with each witness after we have completed our interviews ofall ofthe Govemment witnesses.").
The Govemment cannot address the relevance and necessity ofclassified inf:ormation, or propose
altematives to classified infiormation, i f i t does not know the specific classified infiormation the
defense intends to use with each Govemment witness.
3. On6July2012andl7August 2012,the defense provided notice ofintent to disclose
classified information under MRE 505(h)^^^ Appellate Exhibits CLXXXV and CCLXI.On
11 July 2012and 22 August 2012,the Govemment responded to the relevant defense notice, and
identified the inadequacies of the notice relating to eitheralackofparticularityand^or the failure
to identify witnesses.
Appellate Exhibits CCIV and CCLXIf Portions ofthe defense notice
with respect to three damage assessments were superseded bythe defense notice provided on 14
December 2012, hut the defense has yet to provide adequate specificity with respect to other
portions ofthe defense notice filed onl7August2012and responded to bythe Govemment on
22 August 2012. Because ofthese issues and others, onl70ctober 2012,the Court ordered the
Govemment to fileapleading that both addresses the requirements f:or defense notice under
MRE 505(h)andproposesatimclinef:or filings by the parties. The Govemment complied onl8
October 2012.
Appellate Exhibit CCCLVIf Among other things, that timeline required the
defense, by 16Novembcr 2012,to provide specific notice of classified information the defense
intends to disclose during trial through prosecution witness testimony.
Appellate Exhibit
CCCLVII,at4. Thel6Novemhcr2012date proposed by the Govemment was based, in part, on
APPELLATEEXHIBIT^^^
PAGEREFERENCED:
PAGE
OF
PAGES

33675

the Govemment's estimate that 45-60 days would be required for coordination. See Appellate
Exhibit CCCLVII, at 4. As acknowledged by the defense in its filing on 14 December 2012, that
notice is still outstanding. See supra paragraph 2. Accordingly, because of the lack of time for
coordination, the Govemment believes the Grunden issues in paragraph 2c, as well as the
Court's Calendar, must be shifted to the right, or the defense should be precluded from eliciting
classified information through prosecution witnesses during trial.

'M

/ # D E A N MORROW
CPT, JA
Assistant Trial Counsel

I certify that I served or caused to be served a true copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 21 December 2012.

O^DEAN MOR^GvT"
:PT, J A

Assistant Trial Counsel

33676

Morrow, JoDegn (Joe) III CPT USARMY USAMDW (US)
From:
Sent:
To:
Co:

Subject:

Lind, Denise R COL USARMY (US)
Thursday December 20, 2012 6:19 PM
Fein, Ashden MAJ USARMY MDW (US)
'David Coombs'; Tooman, Joshua J CPT USARMY (US); Morrow, JoDean (Joe) 111 CPT
USARMY USAMDW (US); Overgaard, Angel M CPT USARMY (US); Whyte, J Hunter CPT
USARMY (US); von Elten, Alexander S (Alec) CPT USARMY (US); Ford, Arthur D Jr CW2
USARMY (US); Williams, Patricia Ann (Trisha Williams-Butler) CIV USARMY USAMDW (US);
Jefferson, Dashawn MSG USARMY (US); Moore, Katrina R MSG USARMY (US); Raffel,
Michael J SFC USARMY (US); Hurley, Thomas F MAJ USARMY (US)
RE: Clarification (Grunden) (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE
A l l of them f i l e d to date.

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

Original Message
From: Fein, Ashden MAD USARMY MDW (US)
Sent: Thursday, December 20, 2012 6:15 PM
To: Lind, Denise R COL USARMY (US)
Cc: 'David Coombs'; Tooman, Doshua D CPT USARMY (US); Morrow, DoDean (Doe) I I I CPT USARMY
USAMDW (US); Overgaard, Angel M CPT USARMY (US); Whyte, D Hunter CPT USARMY (US); von Elten,
Alexander S (Alec) CPT USARMY (US); Ford, Arthur D Dr CW2 USARMY (US); Williams, Patricia Ann
(Trisha Williams-Butler) CIV USARMY USAMDW (US); Defferson, Dashawn MSG USARMY (US); Moore,
Katrina R MSG USARMY (US); Raffel, Michael D SFC USARMY (US); Hurley, Thomas F MAD USARMY
(US)
Subject: Clarification (Grunden)
Ma'am.
The United States requests clarification on the Court's intent for the Grunden f i l i n g s . In
paragraph 2c, the Court orders the United States to provide "notice of whether the Government
objects to the Defense's proposed use of classified information as detailed in i t s f i l i n g
dated 26 October 2012." Did the Court intend to only include 26 October 2012, or a l l
previous MRE 505(h) notice f i l i n g s to include 26 October 2012?
Thank you I
v/r
MAD Fein
Classification: UNCLASSIFIED
Caveats: NONE

33677

UNITED STATESOF AMERICA
DEFENSE RESPONSE TO
GOVERNMENT MOTION IN LIMINE
TO EXCLUDE OVERCLASSIFICATION
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

28 December 2012

RELIEF SOUGHT
1. The Defense in the above case respectfully requests that this Court deny the Govemment's
motion in limine to exclude evidence of overclassification.

BURDEN OF PERSUASION AND BURDEN OFPROOF
2. The burden ofproof on any facmal issue, the resolution ofwhich is necessary to decidea
motion, shall be by preponderanceofthe evidence. R.C.M.905(c)(1). The burden of persuasion
on any factual issue, the resolution of which is necessary to decideamotion, shall be on the
moving party. R.C.M. 905(c)(2). The prosecution has the burden ofpersuasion as the moving
party.

FACTS
3. PFC Manning is charged with one specification of aiding the enemy,one specification of
disorders and neglects to the prejudiceof good order and discipline and service discrediting,
eight specificationsofviolationsofl8U.S.C.^ 793(e), five specifications of violations o f l 8
U.S.C.^641,two specificationsofviolationsofl8U.S.C.^ 1030(a)(l), and five specifications
of violatingalawftil general regulation, in violation of Articles 104, 134, and 92,Uniform Code
ofMilitary Justice (UCMJ).
Charge Sheet.
4. Onl6November 2012,the Delense submittedarequest fbr judicial notice ofH.R. 553,tbe
^^Reducing Over-Classification Act, as well as transcripts ofHouse Committee meetings on the
Espionage Act(16December2010)and Overclassification (22 March, 26 ApriL and 28 June
2007)^^^AppellateExhibit(AE)390.
5. On 23 November 2012, the Defense filedaMotion to Compel Production ofwitnesses fi:or
Merits and Sentencing. ^^^AE408. In it, the Defense proffers that Mr. Cassius Hall will testify
that the much ofthe charged information could not cause damage to the United States and was
not closely held; Mr. Charles Ganiei will testify that the vast majority ofthe information within
the charged diplomatic cables was already in the public realm prior to PFC Manning'salleged
misconduct; and Ambassador Peter Oalbraith will testify that many Department ofState cables

APPELLATE EXHIBIT
PAGE REFERENCED:
PAGE
O"^

33678

are in his experience ovcrclassified and tbat a secret classification does not mean the in^rmation
is genuinely secret.
6 On 26 November 2012, tbe Court published Draft Instructions for all the Charged Oflenses
^AE^IO

WITNESSES/EVIDENCE
7. The Defense requests the Court consider the charge sheet and the referenced Appellate
Exhibits when deciding this motion.

LEGAL AUTHORITY AND ARGUMENT
8. Relevant evidence is defined as "evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence." M.R.E. 401. The militaryjudge has the initial responsibility
to determine whether evidence is relevant under M.R.E. 401. United States v. White, 69 M.J.
236, 239 (CAAF 2010). Relevant evidence is admissible, except as otherwise provided by the
Constitution, the Code, the Rules, the Manual, or any Act of Congress applicable to members of
the armed forces. M.R.E. 402. Irrelevant evidence is not admissible. See id.; United States v.
Greaves, 40 M.J. 432, 437 (CMA 1994).
9. Evidence related to overclassification is relevant because a fact at issue is less likely than
without the evidence. See M.R.E. 401. Specifically, overclassification relates to the men rea
requirement of the specifications incorporating 10 U.S.C. § 793(e). Overclassification also
impacts the issue of whether the compromised information "relates to the national defense"
which requires both that the information be "closely held" by the United States govemment and
that the information could be "potentially damaging to the United States or might be usefiil to an
enemy of the United States. See AE 410.
10. A conviction under section 793(e) requires the Govemment to establish PFC Manning "had
reason to believe the classified records, classified memorandum, videos, and files described for
each specification...could be used to the injury of the United States or to the advantage ofany
foreign nation." See AE 410 at 9. The Court has ruled that "[i]n considering whether the
accused had reason to believe that the information could be used to the injury ofthe United
States or to the advantage of a foreign country, you may consider the nature of the information
involved." Id. at 10. The nature of the information at issue here is classified information.
Evidence of overclassification relates to the nature of the offense, and, thus, a fact at issue.'
11. In a related vein, to sustain a conviction under section 793(e), the Govemment must
establish that the information related to the national defense. In the Court's Draft Instructions,
the Court indicated that this term encompassed both an inquiry into whether the material is
' The same argument would, of course, also apply to the 18 U.S.C. 1030 offenses which incorporate the 18 U.S.C.
793 language.

33679

closely held by the United States govemment and whether the disclosure ofthe information
"would be potentially damaging to tbe United States or might be useful to an enemy oftbe
UnitedStates.".^^. The Court also indicated that the factfinder may consider "wbetber tbe
infbrmation was classified or not in determining whether the information relates to the national
defense."
Evidence of overclassification bears on whetheraparticular classified document
"relates to tbe national delense" in the sense ofbeing potentially damaging.
12. Tbe Govemment'sposition throughout this litigation bas been tbat tbe oB^^^^/thata
document is classified provides the most compelling evidence that the document could cause
injury to the United States or be used to the advantageofaforeign nation. This latest motion is
no diflerent. The Govemment indicates repeatedly that the fact ofdassification is the main
factor thatacourt should look to in deciding whether the infbrmation could be used to the injury
ofthe United States:
Thatadocument is classified does tend to support the contention that it contains
infbrmation that could be used to the injury ofthe United States or to the
advantageofany foreign nation.

Factors, including classification of the documents and expert testimony of the
potential damage from disclosure of the documents to unauthorized persons,
determine whether the information could be used to the injury of the United
States. See Gorin v. United States. 312 U.S. 19. 29(1941); United States v. Diaz.
69 M.J. 127, 133 (CAAF 2010). Proof of classification constitutes evidence that
the compromised information could be used to the injury of the United States.
See Diaz, 69 M.J. at 133 ("Surely classification may demonstrate that an accused
has reason to believe that the information relates to national defense and could
cause harm to the United States."). Documents are classified if their unauthorized
disclosure reasonably could be expected to result in damage to the national
security. See Exec. Order No. 13526 § 1.1(4); Gorin, 312 U.S. at 28 (determining
that the term "national defense" as used in a predecessor to § 793 is a broad
concept); United States v. Morison. 844 F.2d 1057, 1071, 1074 (4th Cir. 1988)
(noting that national defense information is information that is potentially
damaging to the United States).
See Prosecution Motion in Limine to Exclude Overclassification at p. 2, 5.
13. In its most recent motion, the Government also emphasizes for the umpteenth time that
courts should defer to classification decisions in determining whether information could cause
harm to the United States:
Once an OCA has made a classification determination, it is presumed proper and
it is not the province of the court to question these determinations. See United
States v. Smith. 750 F.2d 1215, 1217 (4th Cir. 1984) ("[T]he govemment... may
determine what information is classified. A defendant cannot challenge this

33680

classification. A court cannot i^uestionit.").vacated and remanded on other
grounds, 780F2dll02(4th Cir 1985); seealso United Statesv.Rosen.487F
Supp. 2d 703,717(E.D.Va. 2007) ("Of course, classification decisions are fbr
the Executive Branch
"). The decision ofthe owner ofthe information must
be given great deference. Sims, 471 U.S.atl76 ("Tbe decisions ofthe Director,
wbo must of course be familiar with ^tbe whole picture.'as judges are noL are
worthy of great deferencegiven the magnitudeofthe national security interests
and potential risks at stake.").
.^^.atp.4 This argument is largelyarepeat of the argument the Govemment made in its Motion
to Preclude Actual Harm ofDamage ftom the Pretrial Motions Practice and the Merits Portion of
theTrial where it argued:
Courts largely agree that classification determinations, as products ofthe Executive
Branch, should be presumed proper and not subject to great judicial scrutiny. SeeHaigv.
Agee, 453 US. 280, 291 (1981)("Mattersintimatelyrelated to foreign policy and
national security are rarely proper subjects fbr iudicial intervention"); see also Harisiades
v.Shaughnessv.342 U.S.580(l952)(sucb matters "are so exclusively entrusted to the
political branches of govemment as to be largely immune ftom judicial inquiry or
interference"). Tbe decision ofownerofthe information must be given great deference.
See Sims.471U.S.atl76("|^tlhe decisions oftbe Director.who must ofcourse be
familiarwith the whole picture,'as judges are not, are worthy of great deference given
the magnitude ofthe national security interests and potential risks at stake"). Tbe Fourth
Circuit provides such great deference to the classification determination tbat courts
largely do not question the determination. See United Statesv.Smith,750F.2d 1215,
1217(4thCir.l984)("|^Tjbe government...may determine what inlbrmation is
classified. Adefendant cannot challenge this classification. Acourt catmot question
it."),vacated and remanded on other grounds,780 F.2dll02(4thCir.l985); see also
UnitedStatesvRosen.487FSupto2d 703,717 ( E D V a 2007)("Of course,
classification decisions are fbr tbe Executive Branch....").
AE221atp4
14. In tbe Govemment'sMotion to Preclude Actual Harm ofDamage ftom the Pretrial Motions
Practice and the Merits Portion of theTriaf referenced above, the Govemment sought to
preclude tbe Defense from raising or soliciting any evidence related to actual harm and the
absence tbereofftom the merits portion ofthe triaL As part ofthis motion, the Court asked the
Govertmrent whether it intended to introduce evidenceof ^^/t^^^^^^^ to prove^^^^^/^^^^^^^.
Tbe Government emphatically said "no"^it would not be introducing evidenceof actual damage
to prove tbat the documents could cause damage under sectionl8U.S.C.793. ^^^^^.atp.5
("The law does not require the United States to prove that actual harm or damage occurred in its
case-in chief in light of the charges facing the accused. Actual harm or damage, including the
absence thereof is not an element, or relevant to any element, ofany offense fbr which the
accused is charged. The extent ofactual harm or damage that occurred bears absolutely no
relationsbiptowbethertbeaccused, in fact, committed the offenses.' ).

33681

15. The Govemment has made no secret about its plan forproving the ^^^.^^^^requirementof
section 793. The Govemment will establish that the documents were properly classified through
OCA testimony,and then will rely on the presumption that it believes arises ftom the fact of
classification to establish that the documents and infbrmation released could cause damage to the
UnitedStates. The Govemment, no doubt, is permitted to do this. However, the Govemment
would have the Court defer to the classification decision as ^^ ^^^^ establishing that the
infbrmation could cause damage without acknowledging the elephant in the room: that there isa
majorproblem with overclassification in this country. The fact ofovcrclassification significantly
^^^^^^.^anypresumption which may otherwise arise ftom the fact of classification itself That
is, the overclassification ofdocuments means "classified" is no longer an indisputable indicator
ofpotential harm to the United States upon releaseof such infiormation.
16. Inasystem where only truly sensitive documents are classified, then perhaps it is fair to
accordapresumptionofpotentialdamagearising ftom disclosureto the fact of classification
itself Inasystem which the President ofthe United States has acknowledged that many non
sensitive documents are classified, there is much less reason to accord any presumption of
potential damage arising ftom disclosure to the fact ofdassification itself In other words, the
fact thatadocument is dassified, inasystem that overdassifies too many things, significantly
undermines the presumption which the Govemment would have this Court draw: that the fact of
dassification itselfautomatically equals "could cause damage." Accordingly,tbe Defense
should be permitted to put fbrth evidence that negates or weakens the presumption which the
Govemment argues should arise by virtue ofthe fact ofdassification.
17. If the Defense is not permitted to do this, the Court will be operating inafactual and legal
vacuum. No doubt this is what the Govemment wants and intends. However, it is not fair fbr
the Govemment to be able to argue that the fact ofdassification should be highly probative, if
not determinative, in establishing the ^^^.^^^^ requirement ofsection 793(e) or that the
infbrmation relates to the national defense without the Defense being able to paintafulsome
picture ofthe context in which the dassification decision was made. When provided the context,
the Court can then decide^with the benefit offttllinformation^what weight to accord to the
fact of dassification itself in assessing whetheradocument'sdisclosure could cause damage.
Again, the Govemment'sintention to draw inferences fromadocument'sclassification makes
not only that document'sdassification, but also the dassification process asawhole, relevant.
The Defense should not be precluded ftom exploring fitllythe issue of dassification^in either
the merits or in sentencing. Part ofthat exploration rightfiilly indudes the facial reliability ofa
classification marking as signifying tbatadocument'sdisdosure could cause damage to the
UnitedStates.
18. The Govemment'sargument with respect to M.R.E.403 warrants short shrift. PFC
Manninghasalreadygivennoticeofhisintenttoelecttrialbymilitaryjudgealone his highly
doubtful that this Court will suffer from "tbe danger ofissueconfiision"if the Court takes
judicial notice ofthe overclassification.
Prosecution Motion in Limine to Exclude
Overclassification, p.7. Moreover, the Govemment'scontention that the Court takingjudicial
notice ofoverdassification would amount to an "undue waste oftime" is incredulous given that
the Govemment plans to call approximately 150 witnesses.

33682

19. Finally,tbe Govemment appears to bave wholly misunderstood tbe Defense'sposition on
overclassification. Accordingly,its arguments are directed at shooting down issues drat the
Defense has not even raised. For instance, the Govemment doesafine job outlining the
authority fbr original dassification and the source ofthat authority. However, the fact that PFC
Manning is not an OCA is ofno consequence fbr the purposesofthis motion. The Defense has
nevertaken the position that PFC Manning had the authorityto declassify dassified infbrmation.
The significance ofthe overclassification issue relates to what weight the Court should accord
the fact ofdassification itselfin determining whether PFC Manning had reason to believe that
the documents could cause damage to the United States and whether the documents at issue
relate to the national defense.
20. The Govemment also contends "most ofthe evidence ofoverclassification...came into
existence after tbe accused'smisconduct occurred." Prosecution Motion in Limine to Exclude
Overclassification, p.3. This is simply not the case. Each pieceofevidence was eitherin the
public domain prior to the alleged misconduct or was based on infbrmation that was in the public
domain prior to the alleged misconduct.
1. HR 553 was introduced onl5January 2009 and passed the House on3
February 2009. Although not signed into law until October 2010, the bill was
very much in tbe public^sconsciousness prior to tbe charged misconduct in
thiscase. ^^^AttachmentAtoAE390.
2. While Mr.Blanton did not testify until after the charged misconduct(16
December 2010), his testimony is quite obviously based on infbrmation that
was in the public domain prior to the leaks that gave rise to this case.
Spedfically,Mr.Blanton cites findings from the 9/llCommission,which
finished its work prior to the charged misconduct. ^^^AttachmentCtoAE
390
3. The House Committee meetings on Over-Classification occurred in 2007,
prior to PFC Manning evenjoining the Army. As such, the testimony ftom
that hearing obviously infbrmed the public debate on this issue, i^^^
AttachmentDtoAE390
Accordingly,each of the documents fbr which the Defense has requested judicial notice either
pre-dates the alleged misconduct or is based on infbrmation that pre dates the alleged
misconduct in this case. Regardless ofthe precise timing ofthese public debates, the
Govemment'sposition once again misses the key point: tbe overclassification problem informs
the Court'sdetermination of what weight to accord to the fact of dassification itselfin
determining whether the documents could be used to the injury ofthe United States or to the
advantage ofaforeign nation. As such, the issue of overclassification is relevant and isaproper
subject matter fbr judicial notice.

33683

CONCLUSION
21. Fordie foregoing reasons the Defense respectfully requests this Court deny the
Govemment'smotion/^^^^^^^ to exclude evidence of overclassification.

TDEDWARDCO^
CivilianDefenseCounsel

CPT,JA
DefenseCounsd



33684

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REPLY TO
PROSECUTION RESPONSE
TO DEFENSE 5 NOVEMBER
MRE 505(h)(1) NOTICE

V.

MANNING, Bradley E., PFC

U.S. Army,

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

4 January 2013



The defense provides the following responses to the 21 December 2012 Prosecution
Response to Defense MRE 505(h)(1) Notice on Updated Prosecution Witness List
Dated 5 November 2012.

A. Clari?cation

1. The defense accepts the government's clari?cation and apologizes for the
typographical error.

B. Objections

2. The defense accepts the government's objection to the witnesses the government no
longer intends to call. This applies to




. and

3. The defense accepts the government's objection to and
The defense will not discuss any classi?ed matters with these nesses.

4. The defense accepts the government's objection to The defense is
concerned that certain questions suggested by the video capabilities of weapons
and communications equipment) will have answers that contain classified information,
but will process those issues as they actually arise.

5. The defense accepts the government?s objection to The defense
is concerned that certain questions suggested by the nature of Mr. Muldoon?s testimony
(CENTAUR logs) will have answers that contain classi?ed information, but will process
those issues as they actually arise.

6. The defense accepts the government's objection to The defense is
concerned that certain questions suggested by the subject covered by

testimony (authenticity of DCGS-A records) will have answers that contain classi?ed
information, but will process those issues as they actually arise.




PAGE 09

33685

7. The defense wishes to further clarify its 505(h) notice with respect to the following
chain of custody witnesses:








. The defense wishes to fully discuss any
evidence that these witnesses possessed. Certain common sense questions can be
easily imagined: (1) what was the evidence that you possessed, (2) how do you know it
was that, (3) how did you handle this evidence, (4) if the evidence itself was classi?ed,
distinguish between how you handle classi?ed evidence and unclassi?ed evidence, and
(5) describe the of?cial procedures for handling classi?ed evidence as you understand
them. The defense fears that these witnesses may believe that their responses to these
questions contain classi?ed information. In an abundance of caution, we want the
government (more specifically the organizations for which these witnesses work) to give
its official blessing to discussing these matters with the defense.

8. The defense stands by its notice with respect to and intends to elicit
information from his online conversations with PFC Manning. If the government
believes information within the chat conversation is classi?ed, the defense requests that
the government identify this information for the defense. Depending upon the
information identi?ed, the defense will provide the appropriate notice in order for the
specific equity holder to give its of?cial blessing to discuss this information.

9. The defense intends to fully discuss any potential impact of PFC Manning's alleged
misconduct on the Brigade 82 section with The defense does not
believe any of this information is considered classi?ed. If the government is aware of
any classi?ed mitigating or aggravating evidence discussing the potential impact of PFC
Manning's alleged misconduct on the Brigade 82 section, the government has not
provided this to the defense. If classi?ed information on potential impact within the
Brigade S2 section does exist, the defense requests that the government identify this
information. Depending upon the information identi?ed, the defense will provide the
appropriate notice should we intend to elicit any classi?ed information.

10. The defense requests that the Court deny the government's request and direct the
government to provide the requested information in order for the defense to comply with
its MRE 505 obligations.

3?
THOMAS F. HURLEY

MAJ, JA

Defense Counsel

33686

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE REPLY TO
v. PROSECUTION 21

DECEMBER NOTICE OF
MANNING, Bradley E., PFC INABILITY
U.S. Army,
Headquarters and Headquarters Company.
U.S. Army Garrison, Joint Base Myer- 4 January 2013
Henderson Hall, Fort Myer, VA 22211

1. The defense requests the Court deny the relief sought by the government in its 21
December Notice of Inability to Comply with Paragraph 2c of Court Scheduling Order
Dated 11 December 2012. The defense further requests the Court direct the
Government to (1) describe its process for obtaining permission to use classi?ed
evidence for its witnesses during the pendency of this trial, (2) identify immediately any
changes to its witness list going forward, and (3) provide a ?nal witness list by a date
certain.

2. The defense believes that, with respect to this particular case, the initial step in the
classi?ed evidence process was the government's identi?cation of its witnesses along
with a brief synopsis of the testimony they will provide at trial. The defense submits that
the government's performance in execution of this initial step partially explains the time
consumed by this pre-trial preparation. The government forwarded its ?rst witness list
with summaries on 15 October 2012. The number of witnesses listed by the
government on this list was 144. In an effort to streamline the preparation for the trial
and the trial itself, the undersigned defense counsel indicated to CPT JoDean Morrow
that the defense was willing to stipulate to both classi?ed and unclassi?ed government
evidence (be it by a Stipulation of Fact or Stipulations of Expected Testimony). The
defense communicated that its general willingness did not depend on any pre-trial
agreement and has reiterated its willingness to stipulate in other ways over the last
three months. The government has not fonlvarded any proposed stipulations to the
defense as of this writing. (The defense speci?cally made mention of stipulating to
chain of custody witnesses or those witnesses that will just relate straightfonivard factual
information. The defense estimates that at least 22 of the government's classi?ed
information witnesses would potentially be covered by this offer.) Another problem with
this initial step is that it has or will occur at least three times: the ?rst notice in October,
the second notice in December (when six witnesses were removed), and another notice
next week (when at least one more witness will be removed). The defense would
request the Court direct the government to provide immediate notice when witnesses
will be added or dropped to its witness list as well as a speci?c date after which no new
witnesses may be added.

33687

3. The defense believes that the next two steps in the classi?ed evidence process in
this case were (1) the defense repeating the government?s summaries back to the
government in the form of a notice under the provisions of MRE 505(h) and (2) the
government obtaining the permission of the relevant OCAs for the use of their
respective portions of classi?ed evidence. The Defense completed the second step,
which was understood as a mandatory preliminary step to even interviewing
government witnesses, on 16 November 2012. The government has provided no
evidence that it has sought or obtained the permission of any OCA to discuss classi?ed
evidence during pretrial interviews with any government witness. It could be argued, by
inference, that its 21 December 2012 response to the defense?s 16 November notice is
evidence that this step has been satisfactorily completed. However, this inferential
claim ignores an important consequence of obtaining OCA permission. Namely, the
notice that this permission gives to individual witnesses about what subjects can and
cannot be discussed by the individual witnesses in their pretrial interviews with defense
counsel. The defense is concerned that government witnesses that will be providing
testimony on classified topics do not now understand the appropriate boundaries for
their testimony. The defense contends that the problems associated with these steps in
the classified evidence process are not attributable to the defense and necessitate
denying the government the relief it seeks in its notice.

4. The defense understood that the next step in the classi?ed evidence process used in
this case would be the government's reporting the action of the OCA (approving or
denying particular topics for discussion during witness interviews). The only ?ling by the
government that could be seen as reporting this information (again, by inference) was
the 21 December Prosecution Response. The undersigned defense counsel brought
the lack of notice by the government to the defense to the attention of MAJ Ashden Fein
in early December, and MAJ Fein responded that the defense would get something
shortly. During November and December, the defense began working with the
Department of State to interview the witnesses listed by the Government. The
defense?s concerns about the lack of OCA approval for any Dos witnesses were
lessened by the knowledge that representatives from legal would be present during
interviews with any witnesses from that organization. The defense conducted 13
witness interviews of witnesses during December. The defense believes that it has
another four interviews to conduct with only one scheduled. Again, the defense submits
that any delay is not attributable to the defense.

5. The defense believes that the next step in the classi?ed evidence process is the
defense actually conducting the pretrial interviews of the government?s witnesses. The
undersigned defense counsel has contacted government witnesses, despite having no
knowledge of whether the OCAs have approved discussing classi?ed evidence with
their respective witnesses, in order to prevent unnecessary delay in this case. This
mundane detail is only signi?cant in that a point of contact for an entire governmental
agency indicated to the defense counsel that it would need to put off interviews of its
three agents for several weeks. The representative went on to say that a delay of that
length was necessary because the agency concerned has not yet approved of the use
of classi?ed evidence at trial by either party. Unfortunately, the defense does not have

33688

an estimate for when this issue will be resolved to the satisfaction of both parties.
Obviously, any delay associated with resolving this problem is not the responsibility of
the defense.

6. The defense believes that the next step in the classified evidence process is the one
complained about by the government in its filing. The main concern for the defense in
actually conducting these interviews is that there is no evidence that an OCA has
speci?cally approved the witness discussing classi?ed evidence with the defense
counsel. For instance, the defense has an interview scheduled with MG Michael
Nagata on 14 January. The undersigned defense counsel doubts that MG Nagata will
much care that some lawyers believe he is authorized to discuss this classi?ed
information. It stands to reason that he might want an OCA to explain to him the
appropriate boundaries for this discussion. Again, any delay associated with the delay
decried by the government is not the fault of the defense.

7. The defense is con?dent that it can complete interviewing the government's
witnesses and provide notice under MRE 505(h) in accordance with the current
scheduling order. We are confident that we can complete interviewing most
Department of Defense witnesses during this month. The only outliers will be the
personnel assigned to USCENTCOM. The defense hopes that many of the law
enforcement witnesses called by the government can be stipulated to by both parties.
The defense has interviewed most of the witnesses from the Department of State and
will be able to complete that task this month depending on the schedule of the Dos
officials.

8. The defense requests that the Court deny the government the relief requested in its
21 December notice. The defense believes that the problems associated with classified
information stem from a lack of notice that the relevant OCAs have approved of the
defense counsel interviews with either the defense or the witnesses. Any delay
associated with these problems should not be attributed to or held against the defense
in this case.

7%

THOMAS F. HURLEY
MAJ, JA
Defense Counsel

33689

Ford, Arthur Jr USARMY (us)

From: David Coombs

Sent: Friday, January 04, 2013 10:33 AM

To: Lind, Denise COL USARMY (US)

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

JoDean (Joe) CPT USARMY USAMDW Overgaard, Angel CPT USARMY
Whyte, Hunter CPT USARMY von Elten, Alexander (Alec) CPT USARMY
Ford, Arthur Jr CW2 USARMY Vl?lliams, Patricia Ann (Trisha Williams-Butler) CIV
USARMY USAMDW Jefferson, Dashawn MSG USARMY Moore, Katrina MSG
USARMY Raffel, Michael SFC USARMY Fein, Ashden MAJ USARMY MDW
(US)

Subject: Expert Witness Issue
Attachments: AR 27-40.pdf; AR 27-40 Judicial Notice.pdf
Ma?am,

The Defense wanted to provide the Court and the Government with the benefit of information in
advance of our motions hearing. In the Government?s response motion, it cites 5 CFR Section

2635-aes as a basis to prevent and 1

from being able to testify.

5 CFR Section 263S.805(a) is codified in AR 27-40, Chapter 7-10, page 16. Under AR 27-40,
the approval authority for any DA personnel to testify in a proceeding where the United
States has an interest for a party other that the United States is the Litigation Division,
OTJAG. However, Chapter 1-1(b) of the regulation does not apply in Department of Army or DOD

"proceedings such as a court-martial or an administrative board.

Yesterday, I spoke with . the Deputy Chief of Litigation Division. He
informed me that although his office acts upon requests for DA personnel to act as experts in
state and federal courts on a frequent basis, he has never seen such a request for a court-
martial. COL Robitaille informed me that this is the case since AR 27-40 specifically
excludes application of the provision to courts-martial. The Defense has also conducted a
westlaw search for the provision relied upon by the Government and has not found a single
military case that cites the provision.

I have attached the entire AR 27-40 for the Court. I have also attached an excerpt of AR 27-
40 which the Defense requests that the Court take judicial notice of for purposes of this
motion.

v/r

David

APPELLATE 9
PAGE REFERENCED:

PAGE OF



David E. Coombs, Esq.

Law Office of David E. Coomb_ 336?)

11 South Angell Street, #317

Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616 1 .

Fax: (568) 689-9282




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



Army Regulation 27?40

Legal Services

Litigation

Headquarters
Department of the Army

Washington, DC
19 September 1994

Unclassified



33692

CHANGE

AR 27440
Litigation

This revision??
0 Devotes a separate chapter to service of process (chap 2).

Replaces "investigative report" with "litigation report" reflecting current
usage (chap 3).

0 Devotes a separate chapter to individual liability (chap 4).
Treats environmental litigation (chap 6).

Deletes coverage of criminal prosecutions in U.S. Magistrate and District
Courts (see AR 27-10).

0 Delegates more authority to the installation level to determine release of
information and appearance of witnesses (chap 7).

0 Updates procedures to obtain release from local or State jury duty (chap 10).

Headquarters
Department of the Army
Washington, DC

19 September 1994

Legal Services

Litigation

33693
*Army Regulation 27-40

Effective 19 October 1994

By Order of the Secretary of the Army:

GORDON R. SULLIVAN
General, United States Army
Chief of Staff

Official:



MILTON H. HAMILTON
Administrative Assistant to the
Secretary of the Army

History. This printing publishes a complete
revision of this Anny regulation. Because the
publication has been revised extensively, the
changed portions have not been highlighted.
Summary. This regulation prescribes policy
and procedures for litigation in civilian court
proceedings, including the following: provid-
ing representation of the Army and its per-
sonnel in Federal and State court
proceedings; remedies for procurement fraud;
environmental litigation; bankruptcy; release
of information and appearance of witnesses

in criminal and civil court actions; proce-
dures to follow when soldiers are summoned
for jury duty; and, procedures for cooperation
with the Of?ce of Special Counsel.
Applicability. This regulation applies to all
DA personnel (see glossary), including the
Active Army, the Army National Guard, and
the U.S. Army Reserve. This regulation ap-
plies during partial and full mobilization.
Proponent and exception authority.
The proponent of this regulation is The Judge
Advocate General. The proponent has the au-
thority to approve exceptions to this regula-
tion that are consistent with controlling law
and regulation. Proponents may delegate the
approval authority, in writing, to a division
chief under their supervision within the pro-
ponent agency who holds the grade of colo-
nel or the civilian equivalent.

Army management control process.
This regulation is not subject to the require-
ments of AR ll-2. It does not contain inter-
nal control provisions.

Supplementation. Supplementation of this
regulation and establishment of command
and local fonns are prohibited without prior

approval from the Of?ce of The Judge Advo-
cate General, ATTN: Litigation Division
(DAJA-LT), 901 North Stuart Street, Ar-
lington, VA 22203-1837.

Interim changes. Interim changes to this
regulation are not of?cial unless authenti-
cated by the Administrative Assistant to the
Secretary of the Anny. Users will destroy
interim changes on their expiration dates un-
less sooner superseded or rescinded.

Suggested Improvements?. Users are in-
vited to send comments and suggestions to
Office of The Judge Advocate General,
ATTN: Litigation Division (DAJA-LT), 901
North Stuart Street, Arlington, VA
22203-1837.

Distribution. Distribution of this publica-
tion is made in accordance with DA Fonn
l2-09-E, block number 2040, intended for
command levels and for Active Ar-
my, Army National Guard, and U.S. Army
Reserve.

Contents (Listed by paragraph and page number)

Chapter 1

General, page 1
Purpose - 1-1, page 1
References - l-2, page 1

Explanation of abbreviations and terms - 1-3, page I

Responsibilities - l-4, page 1

Restriction on contact with DOJ - l-5, page 2

Appearance as counsel - l-6, page 2
Mailing addresses - 1-7, page 2

Chapter 2

Chapter 3

Reporting Legal Proceedings to Headquarters, Department
of the Army, page 3

General - 3-1, page 3

Individual and supervisory procedures upon commencement of
legal proceedings - 3-2, page 4

SJA or legal adviser procedures - 3-3, page 4

Litigation alleging individual liability - 3-4, page 4

Injunctive relief 3-5, page 4

Habeas Corpus - 3-6, page 4

Litigation against Govemment contractors - 3-7, page 4
Miscellaneous reporting requirements - 3-8, page 5
Litigation reports - 3-9, page 5

Service of Process, page 2

General - page 2

Service of criminal process within the United States - 2-2, page 2
Service of civil process within the United States - 2-3, page 2
Service of criminal process outside the United States - 2-4,

page 3

Service of civil process outside the United States - 2-5, page 3
Assistancein serving process overseas - 2-6, page 3

Service of process on DA or the Secretary of the Army - 2-7,

page 3

Preservation of evidence - 3-l0, page 6
DA Fonn 4 3-ll, page 6
Unswom declarations under penalty of perjury - 3-12, page 6

Chapter 4

Individual Liability, page 9

Scope page 9

Policy - 4-2, page 9

Federal statutes and regulations - 4-3, page 9

Procedures for obtaining certi?cation and DOJ representation

- 4-4, page 9
Private counsel at Government expense - 4-5, page 10

?This regulation supersedes AR 27-40. 2 December 1987, and rescinds DA Form 2135. May 1973.
AR 27-40 - 19 September 1994 i

Unclassified



Contents?Continued
Requests for indemni?cation - 4-6, page 10

Chapter 5
Legal Proceedings Initiated by the United States, page 12

Section 1
Medical Care and Property Claims, page 12
General - page 12
Referral of medical care and property Claims for litigation - 5-2,
page 12
Preparation of claims for litigation - 5-3, page 12

Section II

Assertion of Other Claims, page 1.3

Referral to the Litigation Division - 5-4, page 13

Proceedings to repossess Government real property or quarters or
to collect delinquent rent - 5-5, page 13

Chapter 6

Environmental Litigation, page 13
Scope page 13

Duties and procedures - 6-2, page 13

Chapter 7
Release of Information and Appearance of, page 14

Section 1

Scope, page 14

General - 7-1, page 14

Policy} 7-2, page 14

Referral to HQDA 7-3, page 14

Section 11

Release of Records in Connection With Litigation, page 15
Release of Army and other agency records - 7-4, page 15
Determination of release authorization - 7-5, page 15
Records determined to be releasable - 7-6, page 15
Records determined not to be releasable - 7-7, page 15

Section
DA Personnel as Witnesses in Private Litigation, page 16
Response to subpoenas, orders, or requests for witnesses - 7-8,
page 16
Official information - 7-9, page 16
Expert witnesses - 7-10, page 16
Interference with mission - 7-ll, page 16

Section I
Litigation in Which the United States Has an Interest, page 16
Response to subpoenas, orders, or requests for witnesses - 7-12,
page 16
Expert witnesses - 7-13, page 17
News media and other inquiries - 7-14, page 17

Section

Status, Travel, and Expenses of Witnesses, page 17
Witnesses for the United States - 7-15, page 17
Witnesses for a State or private litigant - 7-16, page 17
Witnesses before foreign tribunals - 7-17, page 17

Chapter 8

Remedies in Procurement Fraud and Corruption, page 22
Purpose - 8-1, page 22

Policies - 8-2, page 22

Duties and Procedures 5 8-3, page 22

Procurement fraud and irregularities programs at MACOMS - 8-4,

page 23
Reporting requirements - 8-5, page 23

33694

PFD and HQ, USACIDC coordination - 8-6, page 23
Coordination with DOJ 8-7, page 24

Comprehensive remedies plan 8-8, page 24

Litigation reports in civil recovery cases - 8-9, page 24
Administrative and contractual actions - 8-10, page 24
Overseas cases of fraud or corruption - 8-ll, page 24
Program Fraud Civil Remedies Act (PFCRA) - 8-12, page 25

Chapter 9

Cooperation with the Of?ce of Special Counsel, page 30
Introduction - 9-1, page 30

Policy - 9-2, page 30

Duties 0 9-3, page 30

Procedures 9-4, page 3]

Assistance from HQDA - 9-5, page 32

Chapter 10
Soldiers Summoned to Serve on State and Local Juries,
page 33

General - 10-1, page 33

Policy - 10-2, page 33

Exemption determination authority - 10-3, page 33

Procedures for exemption - 10-4, page 34

Status, fees, and expenses - 10-5, page 34

Appendixes

A References, page 35

Mailing Addresses, page 35

C. Department of Defense Directive 5405.2, page 36
Department of Defense Directive 7050.5, page 38
Department of Defense Directive 5505.5, page 41

Figure List

Figure 3-1: Sample answer to judicial complaint with attached
Certi?cate of Service, page 6

Figure 3-2: Sample DA Form 4, page 8

Figure 3-3: Unswom declaration under penalty of perjury executed
within the United States, page 9

Figure 4-1: Format for a request for representation using an
unsworn declaration under penalty of perjury executed within the
United States, page 10

Figure 4-2: Format for scope of employment statement using an
unsworn declaration under penalty of perjury executed outside
the United States, page 11

Figure 4-3: Format for contractor request for representation,
page 11

Figure 7-1: Sample Touhy Compliance Letter, page 18

Figure 7-2: Sample Fact Witness Approval Letter, page 19

Figure 7-3: Sample Expert Witness Denial Letter, page 19

Figure 7-4: Sample of Doctor Approval Letter, page 21

Figure 8-1: Procurement Fraud Indicators, page 25

Figure 8-2: Guide for Preparing Remedies Plan, page 28

Figure 8-3: Guide for Testing Defective Items Under Criminal or
Civil Investigation, page 29

Figure 9-1: Guide for seeking legal advice and representation
before Of?ce of Special Counsel, page 32

Glossary

Index

ii AR 27-40 - 19 September 1994

Chapter 1
General

1-1. Purpose

a. This regulation prescribes policies and procedures for the
following:

(1) Defensive and affirmative litigation in Federal and State civil-
ian courts where the Army or Department of Defense (DOD) has an
interest in the matter.

(2) Proceedings before Federal or State administrative bodies,
such as utility rate commissions.

(3) Release of official information and testimony by Department
of the Anny (DA) personnel with regard to litigation.

(4) Remedies for procurement fraud and corruption.

(5) Environmental civil litigation and administrative proceedings.

(6) Proceedings before the Of?ce of Special Counsel.

b. This regulation does not apply to Department of the Army
(DA) or DOD proceedings such as courts-martial or administrative
boards.

1-2. References
Required and related publications and prescribed and referenced
forms are listed in appendix A.

1-3. Explanation of abbreviations and terms

Abbreviations and terms used in the regulation are explained in the -

glossary.

1-4. Responsibilities -

a. United States Department of Justice (DOJ). DOJ will defend
litigation in domestic and foreign courts, against the United States,
its agencies and instrumentalities, and employees whose of?cial
conduct is involved. The various U.S. Attorney Offices, under the
oversight of the Attorney General, will conduct much of the
representation.

b. The Judge Advocate General (TJAG). Subject to the ultimate
control of litigation by DOJ (including the various U.S. Attorney
Offices), and to the general oversight of litigation by the Army
General Counsel, TJAG is responsible for litigation in which the
Army has an interest. Except with respect to proceedings addressed
in subparagraph i below, only TJAG (or a designee) will communi-
cate to DOJ the Anny?s position with regard to settlement of a case.

c. Assistant Judge Advocate General For Civil Law and Litiga-
tion Responsible to TJAG for litigation issues; super-
vises Chief, Litigation Division.

d. Chief Litigation Division. Reports to and is respon-
sible for the following:

(1) Supervising litigation in which the Anny has an interest.

(2) Acting for TJAG and the Secretary of the Army on litigation
issues, including the authority to settle or compromise cases, subject
to the supervision of TJAG and

(3) Delegating responsibility for cases if appropriate.

(4) Serving as primary contact with DOJ on litigation.

(5) Accepting service of process for DA and for the Secretary of
the Army in his or her official capacity. (See 32 CFR 257.5.)

e. Special Assistant U.S. Attorneys (SAUSAs) and DOJ special
attorneys. Anny judge advocates and civilian attorneys, when ap-
pointed as SAUSAs under 28 USC 543, will represent the Anny?s
interests in either criminal or civil matters in Federal court under the
following circumstances:

(1) Felony and misdemeanor prosecutions in Federal court.
Army attorneys, at the installation level, after being duly appointed
(see AR 27?l0), will prosecute cases, in which the Army has an
interest, in Federal court. Anny attorneys who prosecute criminal
cases will not represent the United States in civil litigation without
authorization from the Chief, Litigation Division.

(2) SA USAs for civil litigation. By assignment of TJAG and upon
the approval of the U.S. Attorney, judge advocates will serve within
a U.S. Attomey?s office to represent the Government in litigation in
which the Army or DOD has an interest. These judge advocates

33695

have the same general authority and responsibility as an Assistant
U.S. Attorney.

(3) Special Attorneys assigned to DOJ. By assignment of TJAG
and with the concurrence of the appropriate DOJ of?cial, judge
advocates will work as Special Attorneys for DOJ. Special Attor-
neys are authorized to represent the United States in civil litigation
in which the Anny or DOD has an interest.

Attorneys at Army activities or commands. Staff judge advo-
cates (SJAS) or legal advisers, or attorneys assigned to them, will
represent the United States in litigation only if authorized by this
regulation or delegated authority in individual cases by the Chief,
Litigation Division.

g. Commander, U.S. Army Claims Service (USARCS). The Com-
mander, USARCS, and USARCS attorneys, subject to AR 27-20,
chapter 4, will maintain direct liaison with DOJ in regard to admin-
istrative settlement of claims under the Federal Tort Claims Act.

It. Chief Contract Law Division, OTJAG. The Chief, Contract
Law Division, attorneys assigned to the Contract Law Division, and
other attorneys designated by the Chief, Contract Law Division, in
litigation involving taxation, will represent DA in negotiation, ad-
ministrative proceedings, and litigation, and maintain liaison with
DOJ and other Governmental authorities.

i. Legal Representatives of the Chief of Engineers. The Office of
Chief Counsel, attorneys assigned thereto, and other attorneys desig-
nated by the Chief Counsel will maintain direct liaison with DOJ
and represent DA in litigation and administrative proceedings aris-
ing from the navigation, civil works, Clean Water Act 404 permit
authority, environmental response activities, and real property func-
tions of the U.S. Army Corps of Engineers (COE).

j. Chief Trial Attorney, Contract Appeals Division, USALSA. The
Chief Trial Attorney, attorneys assigned to the Contract Appeals
Division, and attorneys designated by the Chief Trial Attorney, will
represent the Government before the Armed Services Board of Con-
tract Appeals (ASBCA) and the General Services Board of Contract
Appeals (GSBCA). They will maintain direct liaison with DOJ con-
cerning appeals from ASBCA and GSBCA decisions. The Chief
Trial Attorney has designated COE attorneys to act as trial attorneys
in connection with COE contract appeals.

k. Chief Regulatory Law Office, USALSA. The Chief, Regulatory
Law Office, attorneys assigned to the Regulatory Law Office, and
other attorneys designated by the Chief, will represent DA consumer
interests in regulatory matters before State and Federal administra-
tive agencies and commissions, including but not limited to
proceedings involving rates and conditions for the purchase of serv-
ices for communications (except long-distance telephone), transpor-
tation, and utilities (gas, electric, water and sewer). They will
maintain direct liaison with DOJ for communications, transportation,
and utilities litigation.

l. Chief Intellectual Property Law Division, USALSA. The Chief,
Intellectual Property Law Division, and the attorneys assigned there-
to, will represent DA in matters pertaining to patents, copyrights,
and trademarks. They will maintain direct liaison with DOJ and
represent the DA in intellectual property issues.

m. Chief Labor and Employment Law The Chief,
Labor and Employment Law Office, attorneys assigned thereto, and
attorneys identi?ed as labor counselors will represent DA in matters
pertaining to labor relations, civilian personnel, and Federal labor
standards enforcement before the following: Federal Labor Relations
Authority; Merit Systems Protection Board; Equal Employment Op-
portunity Commission; Department of Labor; National Labor Rela-
tions Board; and, State workmen?s compensation commissions. In
the event any individual mentioned in this subparagraph intends to
make a recommendation to DOJ concerning an appeal of any case
to a U.S. Court of Appeals, such recommendation will first be
coordinated with Litigation Division.

n. Chief Procurement Fraud Division. USALSA. The Chief, Pro-
curement Fraud Division, attorneys assigned thereto, and other attor-
neys designated by the Chief, will represent DA in all procurement
fraud and corruption matters before the Army suspension and debat-
ment authority and before any civil fraud recovery administrative

AR 27-40 - 19 September 1994 1





body. They will maintain liaison and coordinate remedies with DOJ
and other agencies in matters of procurement fraud and conuption.

0. Chief Environmental Law Division, USALSA. The Chief, En-
vironmental Law Division (ELD), attorneys assigned thereto, and
other attorneys designated by the Chief, ELD, will maintain direct
liaison with DOJ and represent DA in all environmental and natural
resources civil litigation and administrative proceedings involving
missions and functions of DA, its major and subordinate commands,
installations presently or previously managed by DA, and other sites
or issues in which DA has a substantial interest, except as otherwise
speci?cally provided in this regulation.

p. Chief Criminal Law Division. OTJAG. The Chief, Criminal
Law Division, will have general oversight of felony and magistrate
court prosecutions conducted by Army lawyers acting as Special
Assistant U.S. Attorneys. (See AR 27-10.) The Chief will coordi-
nate with and other Governmental agencies concerning the
overall conduct of these prosecutions. .

1-5. Restriction on contact with DOJ

a. General rule. Except as authorized by TJAG, the General
Counsel, the Chief of Litigation Division, or this regulation, no
Anny personnel will confer or correspond with DOJ concerning
legal proceedings in which the Army has an interest.

b. Exceptions. This prohibition does not preclude contact with
DOJ required by the Memorandum of Understanding between DOJ
and DOD relating to the investigation and prosecution of certain
crimes. (See AR 27-10, para 2-7.) in addition, an installation SJA
or legal adviser is expected to maintain a working relationship with
the U.S. Attorney in each district within his or her geographical
area. An SJA or legal adviser should request the U.S. Attorney to
advise him or her immediately when litigation involving DA or its
personnel is served on the U.S. Attorney.

1-6. Appearance as counsel

a. General. Military personnel on active duty and DA civilian
personnel will not appear as counsel before any civilian court or in
any preliminary proceeding, for example, deposition, in litigation in
which the Army has an interest without the prior written approval of
TJAG, except under the following conditions:

(1) The appearance is authorized by this regulation.

(2) The individual is a party to the proceeding.

(3) The appearance is authorized under an expanded legal assist-
ance program (see AR 27-3).

(4) The individual is a judge advocate assigned or detailed by
TJAG to DOJ to represent the United States in civil or criminal

cases, for example, a Special Assistant U.S. Attorney, or an attorney a

assigned to Litigation Division.
b. Procedure. All requests for appearance as counsel will be
made through Litigation Division to the Personnel, Plans, and Train-

ing Office, OTJAG. Requests for DA military or civilian attorneys

to appear in any civilian court or proceeding on behalf of a soldier
who is also facing Uniform Code of Military Justice (UCMI) action
will be delivered to the SJA, legal adviser, or Regional Defense
Counsel, as appropriate. The SJA or legal adviser will forward the
request to the Litigation Division with an evaluation of the case and
recommendation. Regional Defense Counsel should send requests
for U.S. Anny Trial Defense Service (USATDS) counsel to Chief,
USATDS, who will forward the request to the Litigation Division.
Privileged or otherwise sensitive client information should only be
submitted through USATDS channels.

1-7. Mailing addresses
Mailing addresses for organizations referenced in this regulation are
in appendix B.

33696

Chapter 2
Service of Process

2-1. General

a. De?ned. Process is a legal document that compels a defendant
in an action to appear in court or to comply with the court?s
demands, for example, in a civil case a summons or subpoena, or in
a criminal case, a warrant for arrest, indictment, contempt order,
subpoena, orgsummons. Service of process is the delivery of the
document to a defendant to notify the defendant of a claim or
charge against him or her.

b. Policy. DA personnel will follow the guidance of this chapter
when civil officials attempt to serve civil or criminal process on
individuals on Federal property.

c. Procedures. Provost marshals shall ensure that installation law
enforcement personnel are trained adequately to respond to situa-
tions that arise with regard to service of civil and criminal process.
SJAs or legal advisers shall provide guidance to law enforcement
personnel in these matters.

2-2. Service of criminal process within the United States

a. Surrender of personnel. Guidance for surrender of military
personnel to civilian law enforcement officials is in chapter 7 of AR
630-10 and AR 190-9. Anny officials will cooperate with civilian
law enforcement authorities who seek the surrender of a soldier in
connection with criminal charges. Special rules apply when a bail
bondsman or other surety seeks custody of a soldier.

b. Requests for witnesses or evidence in criminal proceedings.
See chapter 7 of this regulation.

2-3. Service of civil process within the United States

a. Policy. DA of?cials will not prevent or evade the service of
process in legal actions brought against the United States or against
themselves in their official capacities. lf acceptance of service of
process would interfere with the perfonnance of military duties,
Army officials may designate a representative to accept service. DA
personnel sued in their individual capacity should seek legal counsel
concerning voluntary acceptance of process.

b. Requests for witnesses or evidence in civil proceedings._ See
chapter 7 of this regulation.

c. Process of Federal courts. Subject to reasonable restrictions
imposed by the commander, civil officials will be permitted to serve
Federal process. (See Federal Rules of Civil Procedure 4, 45).

d. Process of State courts.

(1) in areas of exclusive Federal jurisdiction that are not subject
to the right to serve State process, the commander or supervisor will
detennine whether the individual to be served wishes to accept
service voluntarily. A JA or other DA attorney will inform the
individual of the legal effect of voluntary acceptance. if the individ-
ual does not desire to accept service, the party requesting service
will be noti?ed that the nature of the exclusive Federal jurisdiction
precludes service by State authorities on the military installation.

(2) On Federal property where the right to serve process is re-
served by or granted to the State, inareas of concurrent jurisdiction,
or where the United States has only a proprietary interest, Army
of?cials asked to facilitate service of process will proceed initially
as provided in the preceding subparagraph. if the individual declines
to accept service, the requesting party will be allowed to serve the
process per applicable State law, subject to reasonable restrictions
imposed by the commander.

e. Process of foreign courts. A U.S. District Court may order
service upon a person who resides in the judicial district of any
document issued in connection with a proceeding in a foreign or
international tribunal. (See 28 USC 1696). In addition, the U.S.
State Department has the power to receive a letter rogatory issued
by a foreign or international tribunal, to transmit it to a tribunal,
officer or agency in the United States, and to return it a?er execu-
tion. (See 28 USC 1781). Absent a treaty or agreement to the
contrary, these provisions will govern.

Seizure of personal property. State and Federal courts issue
orders (for example, writ of attachment) authorizing a levy (seizure)

AR 27-40 - 19 September 1994



of property to secure satisfaction of a judgment. DA personnel will
comply with valid State or Federal court orders commanding or
authorizing the seizure of private property to the same extent that
State or Federal process is served.

2-4. Service of criminal process outside the United States
Army Regulation_630~l0 and international treaties, such as status of
forces agreements, govern the service of criminal process of foreign
courts and the surrender of soldiers to foreign civilian law enforce-
ment officials.

2-5. Service of civil process outside the United States

a. Process of foreign courts. In foreign countries service of proc-
ess issued by foreign courts will be made under the law of the place
of service, as modi?ed by status of forces agreements, treaties or
other agreements. In foreign areas under exclusive U.S. jurisdiction,
service of process issued by foreign courts will be made under the
law speci?ed by appropriate U.S. authority.?

b. Process of Federal courts. Service of process on U.S. citizens
or residents may be accomplished under the following provisions:
The Hague Convention, reprinted in 28 U.S.C.A. Federal Rules of
Civil Procedure, following Rule 4; Federal Rules of Civil Procedure
28 USC 1781 and 1783; and, the rules of the Federal court
concerned. If a DA of?cial receives a request to serve Federal
process on a person overseas, he or she will determine if the indi-
vidual wishes to accept service voluntarily. Individuals will be per-
mitted to seek counsel. If the person will not accept service
voluntarily, the party requesting service will be noti?ed and advised
to follow procedures prescribed by the law of the foreign country
concerned.

c. Process of State courts. If a DA official receives a request to
serve State court process on a person overseas, he or she will
detennine if the individual wishes to accept service voluntarily.
Individuals will be pennitted to seek counsel. If the person will not
accept service voluntarily, the party requesting service will be noti-
?ed and advised to follow procedures prescribed by the law of the
foreign country concerned. (See, for example, The Hague Conven-
tion, reprinted in 28 U.S.C.A. Federal Rules of Civil Procedure,
following Rule 4.)

d. Suits against the United States. DA personnel served with
foreign civil process will notify the appropriate SJA or legal adviser,
who will return the document to the issuing authority explaining the
lack of authority to accept service for the United States. Service on
the United States must be made upon DOJ through established
diplomatic channels.

2-6. Assistance in serving process overseas

a. Europe. For in'formation and assistance concerning service of
process of persons assigned to or accompanying U.S. Forces in
Europe, Contact the Foreign Law Branch, International Law Divi-
sion, Office of The Judge Advocate, Headquarters U.S. Army,
Europe, and Seventh Anny, Unit 29351, (Heidelberg, Germany)
APO AE 09014.

b. Korea. For information and assistance concerning service of
process of persons assigned to or accompanying U.S. Forces in
Korea, contact Staff Judge Advocate, U.S. Forces Korea (Seoul,
Republic of Korea), APO AP 96205.

c. Panama, Central and South America. For information and

assistance concerning service of process of persons assigned to or

accompanying forces in the U.S. Anny Southern Command, contact
Staff Judge Advocate, HQ, U.S. Army South, Fort Clayton, Panama,
APO AA 34004-5000.

2-7. Service of process on DA or the Secretary of the
Army

The Chief, Litigation Division, shall accept service of process for

33697

the Department of the Army or for the Secretary of the Army in his
or her of?cial capacity.

Chapter 3
Reporting Legal Proceedings to Headquarters,
Department of the Army

3-1. General

a. Legal proceedings requiring reporting. Actions must be taken
upon commencement of litigation or administrative proceedings in
which the United States has an interest. Typically, the Secretary of
the Army, DA, the United States, or DA personnel. are named as
defendant in a lawsuit or _as respondent in an administrative
proceeding. A nonexclusive listing of cases in which the United
States has an interest includes the following:

(1) Suits for damages, injunctive relief, or other action ?led
against the Government or against DA personnel in their of?cial
capacity.

(2) Suits alleging individual liability arising from perfonnance of
of?cial duties by DA personnel.

(3) Actions affecting DA operations or activities or which might
require official action by DA personnel.

(4) Actions arising out of DA contracts, subcontracts, or purchase
orders wherein the Government might be required to reimburse a
contractor for litigation expenses.

(5) Bankruptcy proceedings in which the United States or its
instrumentalities may have an interest, including bankruptcies in-
volving Government contractors.

b. Command and agency responsibility. Commanders and super-

visors of Anny units, installations, or organizations will ensure

reports required by this section are submitted

c. Reports to Headquarters, Department of the Army (HQDA).
Reports required by this regulation will be made telephonically or
mailed to the responsible organization at DA. Appendix contains
mailing addresses for these offices. Except in the situations de-
scribed below, reports required by this chapter will be made to the
Litigation Division:

(1) Actual or potential litigation (or administrative infringement
claims) involving patents, copyrights, or trademarks will be made to
the Intellectual Property Law Division.

(2) Reports of pending or prospective litigation involving taxa-
tion will be made to the Contract Law Division.

(3) Communications, transportation, and utility services reports
will be made to the Regulatory Law Office.

(4) Reports involving environmental and natural resource litiga-
tion and administrative proceedings will be made to the Environ-
mental Law Division.

(5) Potential civil recovery reports in cases of procurement fraud
and corruption will be made to the Procurement Fraud Division.

. (6) Reports involving the felony prosecution program and magis-
trate court prosecutions will be made to the Criminal Law Division,
OTJAG.

(7) Cases before the Anned Services Board of Contract Appeals
and the General Services Board of Contract Appeals will be made to
the Contract Appeals Division.

d. Classified information. lnfonnation required by this regulation
will be submitted in an unclassi?ed form if possible. If downgrading
or declassi?cation is not feasible, the classi?ed material should be
separated from the report and fonvarded under separate cover.

e. Other reporting requirements. Reports required by this chapter
are in addition to and do not satisfy any other reporting requirement,
such as, notifying the Federal Bureau of Investigation (FBI) of
offenses pursuant to AR 27-10; submitting serious incident reports
pursuant to AR 190-40; reporting procurement fraud or other irreg-
ularities per Defense Federal Acquisition Regulation Supplement
(DFARS), section 9.406?3; reporting the exercise of criminal juris-
diction by foreign tribunals over U.S. personnel pursuant to AR
27-50; or, reporting bankruptcies per AR 37-103.

AR 27-40 - 19 September 1994 3



Reports control exemption. The reports required herein are ex-
empt from reports control under AR 335-15, paragraphs 3?3a(5)
and

3-2. Individual and supervisory procedures upon
commencement of legal proceedings -

a. Individual procedures. DA personnel served with civil or
criminal process concerning a proceeding in which the United States
has an interest (see para 3-1) will inform their supervisor immedi-

ately and copies of process and pleadings. There is no?

requirement to notify supervisors of purely private litigation.

b. Supervisory procedures. When supervisors learn that legal
proceedings in which the United States has an interest have com-
menced, the supervisor will forward a copy of all process and
pleadings, along with other readily available infonnation, to the SJA
or legal adviser. If no legal of?cer is "available locally, the docu-
ments will be forwarded to the SJA or legal adviser of the next
higher headquarters. 3

3-3. SJA or legal adviser procedures

a. Immediate notice to HQDA. When an SJA or legal adviser
learns of litigation in which the United States has an interest, and it
appears that HQDA is not aware of the action, the SJA or legal
adviser will notify telephonically the responsible HQDA office. (See
para 3-lc above.) Immediate notice is particularly important when
litigation involves one of the following: a lawsuit against an em-
ployee in his or her individual capacity; a motion for a temporary
restraining order or preliminary injunction; a habeas corpus proceed-
ing; a judicial or administrative proceeding involving less than 60
days to ?le an answer; and, actions with possible Congressional,
Secretarial, or Army Staff interest. For legal proceedings instituted
in foreign tribunals, the SJA or legal adviser will also notify the
major overseas commander concerned and the appropriate U.S. Em-
bassy or Legation. A telephonic report to HQDA should include the
following: . .

(I) Title or style of the proceeding.

(2) Full names and addresses of the parties.

(3) Tribunal in which the action is ?led, date ?led, docket num-
ber, when and on whom service of process was made, and date by
which pleading or response is required.

(4) Nature of the action, amount claimed, or relief sought.

(5) Reasons for immediate action.

b. Transmission of process, pleadings, and related papers. Unless
instructed otherwise by HQDA, the SJA or legal adviser will FAX

or mail HQDA a copy of all process, pleadings, and related papers. I

Use of express mail or overnight delivery service is authorized.

c. Notice to U.S. Attorney. If the legal proceeding is instituted in
the United States, the SJA or legal adviser, unless instructed other-
wise by HQDA, will notify the appropriate U.S. Attorney and ren-
der assistance as required.

3-4. Litigation alleging individual liability

See chapter 4 of this regulation for procedures to follow when DA
personnel, as a result of performance of of?cial duties, are either
sued in their individual capacities or face criminal charges.

3-5. lnjunctive relief

a. General. Plaintiffs may attempt to force Government action or
restraint in important operational matters or pending personnel ac-
tions through motions for temporary restraining orders (TRO) or

preliminary injunctions (PI). Because these actions can quickly im-'

pede military functions, immediate and decisive action must be
taken.

b. Notification to HQDA and the U.S./lttorney. The SJA or legal
adviser will notify Litigation Division or other appropriate of?ce at
HQDA immediately when a motion for TRO or PI has been, or is
about to be, ?led. The SJA or legal adviser will also notify the
responsible U.S. Attorney.

c. Actions by SJA or legal adviser. The SJA or legal adviser will

33698

assist the DOJ or DA attorney responsible for the litigation. Installa-
tion attorneys or support personnel should begin accumulating rele-
vant documentary evidence and identifying witnesses. If requested,
installation attorneys will prepare a legal memorandum concerning
the motion, giving particular attention to the following issues rele-
vant to a court granting injunctive relief:

(1) Plaintiffs likelihood of success on the merits.

(2) Whether plaintiff will be harmed irreparably if injunctive
relief is not granted.

(3) l-lann to defendant and other parties if injunctive relief is
granted.

(4) The public interest.

3-6. Habeas Corpus

a. General. A soldier may ?le a writ of habeas corpus to chal-
lenge his continued custody (usually in a post court-martial situa-
tion) or retention in the Army; As is the case with injunctive relief
in the preceding paragraph, installation SJAs and legal advisers
must take immediate action.

b. Noti?cation to the Litigation Division and the U.S. Attorney.
The SJA or legal adviser will notify the Litigation Division and the

responsible U.S. Attomey?s Of?ce immediately upon learning that a

petition for writ of habeas corpus has been ?led. All relevant docu-
mentary evidence supporting the challenged action should be assem-
bled immediately.

c. Procedures in habeas corpus. Upon the ?ling of a petition for
a writ of habeas corpus, the court will dismiss the petition, issue the
writ, or order the respondent to show cause why it should not be
granted. If a writ or order to show cause is issued, the SJA or legal
adviser should be prepared to assist the responsible Litigation Divi-
sion or DOJ attorney in preparing a retum and answer. If so di-
rected, the SJA will also prepare a memorandum of points and
authorities to accompany the return and answer. The Government's
response should cover the following: whether the Anny has custody
of petitioner; whether respondent and petitioner are within the judi-
cial district; and, whether appellate or administrative remedies have

. been exhausted.

d. Writs or orders issued by State courts. No State court, after
being informed judicially that a petitioner is in custody under the
authority of the United States, should interfere with that custody or
require that petitioner be brought before the State court. A deserter,
apprehended by any civil of?cer having authority to apprehend
offenders under the laws of the United States or of any State,
district, territory, or possession of the United States, is in custody by
authority of the United States. If a writ of habeas corpus is issued
by a State court, the SJA or legal adviser will seek guidance from
Litigation Division.

e. Foreign court orders. A foreign court should not inquire into
the legality of restraint of a person held by U.S. military authority.
If a foreign court issues any process in the nature of a writ of
habeas corpus, the SJA or legal adviser immediately will report the
matter to the appropriate U.S. forces commander and to the Litiga-
tion Division.

3-7. Litigation against Government contractors

a. General. A contract might require that the Govemment reim-
burse a contractor (or subcontractor) for adverse judgments or litiga-
tion expenses. Unless a contractor or subcontractor facing a lawsuit
requests representation by DOJ, the Army presumes the contractor
will obtain private counsel to defend the case. If the contract so
allows, however, the contractor may request, and HQDA may rec-
ommend, that DOJ represent the contractor if it is in the best
interests of the United States.

b. Actions by the SJA or legal adviser. If a contractor or sub-
contractor faces litigation andthe underlying contract with the Gov-
ernment requires reimbursement for adverse judgments or costs of
the litigation, the SJA or legal adviser, through the contracting
of?cer, should determine if the contractor desires representation by
DOJ. If so, the contractor or authorized agent will sign a request for
representation. (See ?g 4-3.) The SJA or legal adviser will deter-
mine whether, in his or her opinion, representation by DOJ should

AR 27-40 - 19 September 1994

be granted. He or she will prepare a memorandum to support his or
her recommendation, especially concerning any issue regarding the
Govemment?s obligation to reimburse the contractor under the con-
tract. The SJA or legal adviser will forward his or her memoran-
dum, along with the contractor?s request, to the Litigation Division.

c. Actions by the Litigation Division. The Chief, Litigation Divi-
sion, will evaluate the submission and decide if it is in the Army?s
best interest that the request be granted. He or she will prepare a
memorandum supporting his or her decision and send the packet to
DOJ. The Chiefs decision constitutes the final DA position on the
matter. If DOJ grants the contractor?s request, the Chief, Litigation
Division, will ensure that the contractor is noti?ed through the SJA
or legal adviser and the contracting officer.

Private Counsel. A contractor represented by DOJ may ask
that private counsel assist the DOJ attorney in the litigation. The
DOJ attorney will remain in control of the litigation, and the fees
for private counsel will not be reimbursable except under unusual
circumstances. The contractor must seek both DOJ and DA approval
to employ private counsel when DOJ representation has been gran-
ted. Even if DOJ and DA grant authority to employ private counsel,
the contracting of?cer will determine whether a contractor will be
reimbursed under the contract for private counsel.

e. Settlement. The contractor, unless the contract specifies other-
wise, ultimately will decide whether to compromise a suit. The
contracting officer determines reimbursement under the contract,
with the advice of his or her attorney.

1
3-8. Miscellaneous reporting requirements
SJAs or legal advisers will comply with the directives cited below
concerning actual or prospective litigation involving the following
types of cases:

a. Taxation.

Contractor transactions. (See Federal Acquisition Regulation
(FAR) and Defense Federal Acquisiton Regulation Supplement
(DFARS), part 29.)

(2) Army and Air Force Exchange Service (AAFES) activities.
(AR 60-20.)

(3) Purchase or sale of alcoholic beverages. (AR 215-2.)

(4) Nonappropriated fund and related activities.(AR 215-1.)

b. Tort and contract claims, insurance, and litigation involving
nonappropriated?md activities. Nonappropriated Fund (NAF) man-
agers and employees must be aware that injury, property damage, or
contract disputes can result in claims against the United States or its
individual officials. Incidents involving potential government liabil-
ity must be reported through the NAF manager to the Claims JA as
soon as practicable. (AR 215-1.)

c. Annexation of Army lands. Upon receipt of information or
official notice that a political subdivision has taken action or is in
the process of undertaking an annexation, and also upon receipt of a
request by a political subdivision of a State for annexation, the
installation commander will ensure an Annexation Assembly and
Evaluation Report is prepared and forwarded through the proper
officials, to include The Judge Advocate General. In instances in-
volving annexation of Army lands, where time is of the essence, the
installation commander shall notify The Judge Advocate General by
electrical means. (AR 405-25.)

Communications, transportation, and utility services adminis-
trative proceedings. Any contracting officer or other Army official
responsible for the acquisition of communications, transportation,
utilities (gas, electric, water and sewer), or military mail services,
who becomes aware of any action or proceeding of interest to the
Army, will refer the matter to the SJA or legal adviser,
who will take the actions prescribed in paragraph 3-3 above. Exam-

?ples of actions requiring referral are as follows: New or amended

rates, regulations, or conditions of service; applications for authority
to discontinue or initiate service; changes in electromagnetic pat-
terns causing adverse communications interference; or, zoning pro-
posals affecting historic or aesthetic preservation. In addition, the
SJA or legal adviser will transmit the following to the Regulatory
Law Office:



33699

(1) The names and addresses of any parties intervening and the
substance of their positions.

(2) Names of Government users affected by any change.

(3) Copy of any proposed rates, rules, or regulations.

(4) A recommendation whether the Army should intervene in the
action or proceeding. If intervention is recommended, provide a
memorandum to support the recommendation.

e. Legal proceedings overseas. Foreign communications, trans-
portation, and utility service proceedings need not be reported. In
other legal proceedings instituted in a foreign country, the SJA or
legal adviser will take the actions prescribed in paragraph 3-3
above.

Maritime claims. Admiralty and maritime claims within the
purview of AR 27-20, chapter 8, that have been investigated and
processed under AR 55-19 or other applicable regulations, will be
referred to USARCS. A

g. Army and Air Force Exchange Service litigation. The SJA or
legal adviser will send a copy of all documents relating to litigation
against AAFES to: General Counsel, AAFES, P.O. Box 660202,
Dallas, TX 75266-0202.

h. Bankruptcy. Reports of bankruptcy or insolvency proceedings
shall be made per this regulation and AR 37-103.

3-9. Litigation reports
The SJA or legal adviser will prepare a litigation report when
directed by HQDA. The report will contain the following sections:

a. Statement of Facts. Include a complete statement of the facts
upon which the action and any defense thereto are based. Where
possible, support facts by reference to documents or witness state-
ments. Include details of previous administrative actions, such as the
filing and results of an administrative claim. If the action is predi-
cated on the Federal Tort Claims Act, include a description of the
plaintiffs relationship to the United States, its instrumentalities, or
its contractors. Also include a statement whether an insurance com-
pany or other third party has an interest in the plaintiffs claim by
subrogation or otherwise and whether there are additional claims
related to the same incident.

b. Seto?? or Counterclaim. Discuss whether setoff or counterclaim
exists. If so, highlight the supportive facts.

c. Responses to Pleadings. Prepare a draft answer or other appro-
priate response to the pleadings. (See fig Sample Answer).
Discuss whether allegations of fact are well-founded. Refer to evi-
dence that refutes factual allegations.

d. Memorandum of Law. Include a brief statement of the applica-
ble law with citations to legal authority. Discussions of local law, if
applicable, should cover relevant issues such as measure of dam-
ages, scope of employment, effect of contributory negligence, or
limitations upon death and survival actions. Do not unduly delay
submission of a litigation report to prepare a comprehensive memo-

randum of law.

e. Potential witness information. List each person having infor-
mation relevant to the case and provide an office address and tele-
phone number. If there is no objection, provide the individual?s
social security account number, home address, and telephone num-
ber. This is ?core information" required by Executive Order No.
12778 (Civil Justice Reform). Finally, summarize the infonnation or
potential testimony that each person listed could provide.

Exhibits.

(1) Attach a copy of all relevant documents. This is ?core infor-
mation? required by Executive Order No. 12778 (Civil Justice Re-
form). Unless otherwise directed by HQDA, each exhibit should be
tabbed and paginated internally. References to exhibits in the litiga-
tion report should be to page numbers of particular exhibits.

(2) Copies of relevant reports of claims officers, investigating
officers, boards, or similar data should be attached, although such
reports will not obviate the requirement for preparation of a com-
plete litigation report.

(3) Prepare an index of tabs and exhibits.

(4) Where a relevant document has been released pursuant to a
Freedom of Information Act (FOIA) request, provide a copy of the

AR 27-40 - 19 September 1994 5



response, or otherwise identify the requestor and the records
released.

g. Distribution and number of copies. Unless HQDA directs oth-
erwise, S.lAs or legal advisers will mail (?ist class) an original and
one copy of the litigation report to the responsible HQDA of?ce
(see para 3-1) and one copy to the U.S. Attomey?s Office handling
the case. If possible, record the litigation report onto a magnetic
diskette, using either WordPerfect, Enable, or ACSII, and send it to
the Litigation Division.

3-10. Preservation of evidence

Because documents needed for litigation or administrative proceed-
ings are subject to routine destruction, the SJA or legal adviser will
ensure that all relevant documents are preserved.

3-11. DA Form 4
a. General. The DA Form 4 (Department of the Anny Certi?ca-

tion for Authentication of Records) (See ?g 3~2) is used to authenti- A

cate Army records or documents. Documents attached to a properly
prepared and sealed DA Form 4 are self-authenticating. (See Fed. R.
Evid. 902).

1). Preparation at the installation level. A DA Form 4 need not
be prepared until the trial attorney presenting the Govemment?s case
identi?es documents maintained at the installation level that he or
she will need at trial. Once documents are identi?ed, the custodian
of the documents will execute his or her portion of the DA Form 4.
(See ?g 3-2). The custodian certi?es that the documents attached to
the DA Form? 4 are true copies of of?cial documents?. Documents
attached to each form should be identi?ed generally; each document
need not be mentioned speci?cally. Only the upper portion of the
fonn should be executed at the local level.

c. Actions at HQDA. Upon receipt of the DA Fonn 4 with docu- I

ments attached thereto, HQDA will affix a ribbon and seal and
deliver it to The Office of The Administrative Assistant to The

33700

Secretary of the Army. That office will place the of?cial Army seal
on the packet.

3-12. Unsworn declarations under penalty of perjury

a. General. Under the provisions of 28 USC I746, whenever any
matter is required or pennitted to be established or proven by a
sworn statement, oath, or affidavit, such matter may also be estab-
lished or proven by an unswom written declaration under penalty of
perjury. Because such declaration does not require a notary or other
of?cial to administer oaths, individuals preparing statements for use
in litigation should consider using this format. (See ?g 3-3.)

b. When executed within the United States. Place the following
at the end of the witness statement:

I declare under penalty of perjury that the foregoing is true and
correct. (28 USC 1746.)

Executed on (date) (Signature)

c. When executed outside the United States. Place the following
at the end of the witness statement:

I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct. (28
USC 1746.)

Executed on (date) (Signature)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

JOHN DOE
Plaintiff
v.
NO. C?90?l 00

MICHAEL P. W. STONE,
SECRETARY OF THE ARMY
DEPARTMENT OF THE ARMY

Defendant

First Affirmative Defense.

The Complaint is barred by laches.

Answer

For its answer to the complaint, defendant admits, denies and alleges as follows:

1. Admits.

Figure 3-1. Sample answer to Judicial complaint with attached Certificate of Service

AR 27-40 - 19 September 1994

33701

2. Denies.

3. Denies.

4. The allegations contained in paragraph 4 are conclusions of law to which no response is required; to the extent they may be
deemed allegations of fact, they are denied.

5. Denies the allegations contained in the first sentence of paragraph 5; admits the allegations contained in the second sentence of
paragraph 5; denies the remainder of the allegations in paragraph 5.

6. Denies the allegations in paragraph 6 for lack of knowledge or information suf?cient to form a belief as to their truth.

7. Denies each allegation in the complaint not speci?cally admitted or otherwise quali?ed.

Prayer for Relief

The remainder of plaintiffs Complaint contains his or her prayer for relief, to which no answer is required. Insofar as an answer is
required, denies that plaintiff is entitled to any relief whatsoever.

Defendant respectfully prays that the Court dismiss plaintiff's Complaint and award to defendant costs and such ?rrther relief as the Court
deems proper.

Respectfully Submitted,
RONALD M. FORD
UNITED STATES ATTORNEY

ROY A. ANDERSEN

Assistant United States Attorney
606 N. Carancua

Corpus Christi, Texas 78476
(512) 884-3454

(Signature)

CAPTAIN CHRISTOPHER N. JONES
Department of the Army

Office of the Judge

Advocate General

901 N. Stuart St., Suite 400
Arlington, Virginia 22203-1837

(703) 696-1666

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Defendant?s Answer has been placed in the mail, postage prepaid, this 22 day of
January, 1991, addressed to plaintiff's counsel as follows:
Mr. Eugene Henderson
777 Fourth Street
Corpus Christi, TX 78888

(Signature)
ROY A. ANDERSEN
Assistant United States Attorney

Figure 3-1. Sample answer to judicial complaint with attached Certificate of Service - Continued

AR 27-40 - 19 September 1994 7

33702

mnitcb ?tatc? at Qnurita



DmurrMEN'r 01? THE ARMY
r..9.4

PLACE 551'
IHEREBY CERTIFY that the document, attached hereto consisting of 9
pages,is a true and exact copy of the Narrative Summary, Standard
Form 502, pertaining to the hospitalization of Jane Doe during
the period 3-6 Jan 94, an official document in the custody of the
Registrar of William Beaumont Army Medical Center.

Jonu sun-H
Captain, HS
Registrar

1 HEREBY CERTIFY mu

. the
aignod the forcgolng certificate, la tha

and
that full faith and cnadlt should ha (Ivan to hia certi?cation.

IN TESTIMONY IHIREOF I. .
Soc:-aury of tho Army, Mn hm-aunlo caused the ant of
tha Dapannanl at the Army to bo af?aad and lay namato
ha by the Adunialataa?ua Aaallunz of um um
Dapamunl. at tho City of Washington. this
any of . 19



Sccrolary of the Amy.

By

Ac?nlnlamli va Aunt-ant.


?Ana nunnzla Iol?ou or act IHIIH vm.L ll

Flgure 3-2. Sample DA Form 4

8 AR 27-40 - 19 September 1994



33703

DECLARATION UNDER PENALTY OF PERJURY

I am Private Paul Jones, currently assigned to Company E, 4th Battalion, 325th Parachute
Infantry Regiment, Fort Bragg, North Carolina. I have personal knowledge of the following
matters. .

On the evening of 3 June 1970, I was present at the company party at Lake Popolopen when
the accident occurred. I saw a bright, full moon that evening. A

I declare under penalty of perjury that the foregoing is true and correct. (28 USC 1746 .)

Executed on: (Date)

(Signature)
PAUL JONES
PRIVATE . . ARMY

Figure 3-3. Unsworn declaration under penalty of perjury executed within the United States

Chapter 4 from actions taken by Federal employees acting within the scope of

Individual Liability employment. The law was passed to eliminate problems caused by
Westfall v. Erwin, 484 U.S. 292 (1988).

44- Sc?Pe c. l0 USC 1089 (Defense of certain suits arising out of medical

This chapter provides guidance when DA. personnel, as a result of
the performance of their of?cial duties, are either sued in their
personal capacity, or are charged in a criminal proceeding. Exam-
ples of civil actions alleging individual liability include the follow-
ing: a medical malpractice lawsuit against health care providers;
suits resulting from motor vehicle accidents; constitutional toits; or,
common law torts such as assault, libel, or intentional in?iction of
emotional distress. Likewise, State or Federal criminal charges can
arise from .the performance of official duties, including environmen-
tal crimes or motor vehicle accidents.

4-2. Policy

a. General. Commanders, supervisors, and S.lAs or legal advisers
will give highest priority to compliance with the requirements of
this chapter with regard to current or former DA personnel who face
criminal charges or civil litigation in their individual capacity as a
result of performance of their of?cial duties.

b. DOJ policy on representation. If in the best interest of the
United States, upon request of the individual concerned, and upon
certification by his or her agency that he or she was acting within
the scope of his or her employment, DOJ may represent present and
former DA personnel sued individually as a result of actions taken
within the scope of their employment. Representation can be de-
clined for a variety of reasons, including but not limited to the
following: the employee was not acting within the scope of his or
her of?ce; there is a conflict of interest; or, actions were not taken
in a good faith effort to conform to law.

4-3. Federal statutes and regulations

a. Federal Tort Claims Act (FTCA). (28 USC l346(b),
2671-2680). A waiver of sovereign immunity which, with certain
exceptions, makes the United States liable for tort claims in the
same manner as a private individual.

b. Federal Employees Liability Reform and Tort Compensation
Act of 1988 (FELRTCA) or The Westfall Act, P.L. No. l00~694, 102
Stat 4563 (I988) (codi?ed at and amending 28 USC 2671,2674, and
26 79). FELRTCA, by amending the Federal Tort Claims Act, makes
the FTCA the exclusive remedy for common law tort claims arising

malpractice). This provision, commonly referred to as The Gonzales
Act, makes the FTCA the exclusive remedy for suits alleging medi-
cal malpractice against a military health care provider.

d. 28 CFR 50.15 (Representation of Federal officials and em-

ployees by Department of Justice attorneys in civil, criminal,
and congressional proceedings in which Federal employees are
sued, subpoenaed, or charged in their individual capacities). These
DOJ regulations set out the policy and procedures for requesting
representation in individual liability cases. See also 28 CFR part 15
(Defense of Certain Suits Against Federal Employees, etc.).

e. 28 CFR 50.16 (Representation of Federal employees by pri-
vate counsel at Federal expense).

4-4. Procedures for obtaining certification and DOJ
representation

a. SJA or legal adviser procedures. When an SJA or legal adviser
learns of a criminal charge or of a lawsuit alleging individual liabil-
ity against DA personnel as a result of performance of official
duties, he will take the following actions:

(1) Immediately notify the Litigation Division and_the appropri-
ate U.S. Attorney, and FAX or express deliver copies of process and
pleadings to each office. Where time for response is limited, request
that the U.S. Attorney either petition the court for an extension of
time, or provide temporary counsel and representation pending for-
mal approval. -

(2) Investigate whether the employee was acting within the scope
of his or her of?ce or employment. Obtain, if possible, statements
from the defendant, supervisors, and witnesses.

(3) Advise the individual defendant of the rights and conditions
set out in 28 CFR 50.15, which include the following:

His or her right to request representation by a attorney
and, in appropriate cases, certification that he or she was acting
within the scope of employment. (See 28 USC 2679 and 28 CFR
50.15.)

The right to request private counsel at Government expense,
subject to the availability of funds. (See 28 CFR 50.16.)

That the United States is not obligated to pay or indemnify
defendant for any judgment rendered against him or her in his or her
individual capacity.

AR 27-40 - 19 September 1994 9

(4) If the defendant desires certi?cation or DOJ representation,
have him or her sign a request. (See ?g 4-1.) Obtain a signed scope
of employment statement from the defendant?s supervisor. (Fig
4-2.)

(5) Prepare a report with, at a minimum, the following infonna-
tion: facts surrounding the incident _for which defendant is being
sued and those relating to scope of employment; the or legal
adviser?s conclusions concerning scope of employment; and, a rec-

ommendation whether certi?cation by the Attorney General or rep-

resentation by a DOJ attorney should be granted.

(6) In cases involving National Guard personnel, address also the
following: whether the defendant was acting in a State (title 32) or
Federal (title 10) capacity during relevant periods (include orders);

0 if the defendant was acting under State authority, is it nevertheless

in the interest of the United States to represent the individual; any
impact on policies or practices of DA, the National Guard Bureau,
or whether the relief requested can be granted only by a
Federal of?cer or agency; and, whether_ Federal law or regulation
required actions by State of?cials.

(7) Send the report, request for representation, and scope of em-
ployment statements to the Chief, Litigation Division.

b. Chief, Litigation Division, procedures. The Chief, Litigation
Division, will review the report and evidence regarding representa-
tion and scope of employment and will detennine whether certi?ca-
tion and representation are appropriate. He or she will send his or

her recommendation to the appropriate U.S. Attorney -or of?ce-

within DOJ. The Chief, Litigation Division, will notify the defend-
ant of decision?.

4-5. Private counsel at Government expense

a. General. DA personnel, sued in their individual capacity or
facing criminal charges as a result of performance of of?cial duties,
have no right to employ a private sector counsel at Government
expense or to expect reimbursement for the same. For proceedings
in the United States, a request for employment of counsel at Gov-
ernment expense may be approved by DOJ, contingent among other
things upon availability of funds and a determination that employ-
ment of private counsel at Government expense is in the best inter-
ests of the United States. (See 28 CFR 50.16.) Special rules apply in
overseas areas. (See para 4?5e.)

b. Individual request procedures. The individual will prepare a
request that private counsel be employed for him or her at Govem-
ment expense. The request must also contain the following state-
ment: ?understand that the United States is not required to employ
private counsel on my behalf,_and that I may be responsible for
expenses incurred prior to proper authorization by the Department
of Anny or the Department of Justice.?

c. Supervisory and legal adviser procedures. The request will be
submitted through the individual?s supervisors, who will each make
a recommendation and forward the packet to the local SJA or legal

33704

adviser. The SJA or legal adviser will prepare his or her own
recommendation and forward the matter to the Litigation Division.

Chief Litigation Division. procedures. If the Chief, Litigation
Division, determines that the request for private counsel is meritori-
ous, he or she will prepare an appropriate recommendation and
forward the packet to the Civil Division, DOJ, for ?nal approval.

e. Special actions in foreign countries. Employment of private
counsel in foreign proceedings is governed by AR 27-50. Under the
authority of l0 USC 1037, soldiers, as well as employees or those
accompanying the armed forces overseas, may be granted individual
counsel in civil and criminal proceedings, under the criteria of AR
27-50.

4-6. Requests for indemnification

a. Policy. An individual liable for a judgment rendered against
him or her in his or her individual capacity has no right to reim-
bursement from DA. DA will consider, however, a request for
indemnification from DA personnel where conduct within the scope

of official duties has resulted in personal liability and indemni?ca-
tion is in the best interests of the United States. Indemni?cation is .

contigent strictly upon an appropriation to pay the judgment, as well
as? availability of such funds.

b. Individual request procedures. An individual against whom an
adverse judgment has been rendered may request indemni?cation.
The request. must include, at a minimum, the following: how the
employee was acting within the scope of his or her employment;
whether the requestor has insurance or any other source of indemni-
?cation; and, how reimbursement is in the best interests of the
United States. The request must also contain the following state-
ments: understand that acceptance of this request for indemni?ca-
tion for processing by DA does not constitute an acceptance of any
obligation to make such a payment. I also understand that payment
is contingent on availability_of funds and that it will be made only if
such is determined to be in the best interests of the United States."
The individual should attach a copy of relevant documents, for
example, court?s opinion, judgment, and other allied papers.

c. Supervisory and SJA procedures. The request for indemni?ca-
tion will be submitted through supervisory channels to the local SJA
or legal adviser. Each supervisor will make a recommendation on
the propriety of reimbursement.

d. Chief Litigation Division, procedures. Requests for indemni?-
cation will be forwarded to the Chief, Litigation Division. The
Chief, Litigation Division, will examine the submission and, after
consultation with DOJ or other agencies, forward the packet with
his or her recommendation to the Anny General Counsel. The Gen-
eral Counsel will obtain a ?nal decision by the Secretary of the
Army or his or her designee on the matter. There is no administra-
tive appeal of the Secretary?s (or his or her designee?s) decision.

REQUEST FOR RE PRESENTAT I ON

I request that the Attorney General of the United States, or his or her agent, designate
counsel to defend me in my official and individual capacities in the case of John Doe v.
Private Paul Jones, now pending in the U.S. District Court for the Eastern District of
North Carolina. I have read the complaint filed in this case and I declare that all my
actions were performed in my official capacity, within the scope of my official duties,? and

Figure 4-1. Format for a request for representation using an unsworn declaration under penalty of perjury executed within the United

States

10 AR 27-40 - 19 September 1994

33705

in a good faith belief that my actions conformed to the law. I am not aware of any pending
related criminal investigation.

I understand the following: if my request for representation is approved, I will be
represented by a U.S. Department of Justice attorney; that the United States is not re-
quired to pay any final adverse money judgment rendered against me personally, although I
can request indemnification; that I am entitled to retain private counsel at my own ex-
pense; and, that the Army expresses no opinion whether I should or should not retain pri-
vate counsel.

I declare under penalty of perjury that the foregoing is true and correct. (see 28 USC
1746.)

Executed on: (Date)
(Signature)

PAUL JONES
PRIVATE, U.S. ARMY

Figure 4-1. Format for a request for representation using an unsworn declaration under penalty of perjury executed within the United

States - Continued

DECLARATION

I am currently the Commander of HHC, 6th Armored Division, Bad Vilbel, Germany. I have
read the allegations concerning Private Paul Jones in the complaint of John Doe V. Private
Paul Jones, now pending in the U.S. District Court for the Eastern District of North
Carolina.

At all times relevant to the complaint, I was Private Jones? company commander. His
actions relevant to this case were performed within the scope of his official duties as
Assistant Charge of Quarters, Company B, 4th Battalion, 325th Parachute Infantry Regi-
ment, Fort Bragg, North Carolina.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. (28 USC 1746.)

Executed on (Date)
(Signature)

John Smith
Captain, Infantry

Figure 4-2. Format for scope of employment statement using an unsworn declaration under penalty of perjury executed outside the

United States

REQUEST FOR REPRESENTATION

I am the President of the XYZ Corporation. I request the Attorney General of the United

Figure 4-3. Format for contractor request for representation

AR 27-40 - 19 September 1994

11

b33706

States designate counsel to defend me and my company in Doe v. XYZ, Inc. now pending in the
U.S. District Court for the Eastern District of North Carolina.

I understand that the assumption by the Attorney General of the defense of this case does
not alter or increase the obligations of the United States under United States Contract No.


I further agree that such representation will not be construed as waiver or estoppel to
assert any rights which any interested party may have under said contract.

Executed on: (Date)

(Signature)
D.D. TANGO

PRESIDENT, XYZ, INC.



Figure 4-3. Format for contractor request for representation - Continued

Chapter 5
Legal Proceedings Initiated by the United States

Section I
Medical Care and Property Claims

5-1. General

a. Authorities.

(1) Federal Medical Care Recovery Act (42 USC 2651). The act
provides for the recovery of medical care expenses incurred because
of a tortfeasor?s actions.

(2) Federal Claims Collection Act (31 USC 3711). The act
provides for the collection of claims for money or property arising
from the activities of Federal agencies.

(3) Third?party Collection Program (10 USC 1095). The statute
provides for collection of reasonable costs of health-care services,
provided in facilities of the uniformed services to covered bene?ci-
aries, from private insurers or third-party payers. According to DOD
Instruction 6010.15, the authority to settle or waive a DOD claim
under the act is delegated to TJAG or to a designee.

(4) Executive Order No. 12773, Civil Justice Reform. This order
establishes several requirements on Federal agencies involved in
litigation or contemplating ?ling an action on behalf of the United
States.

(5) AR 27-20, Claims. Chapter 4 (Affirmative Claims) contains
comprehensive guidance for Recovery Judge Advocates (RJAs) in
the administrative determination, assertion, collection, settlement,
and waiver of claims in favor of the U.S. for property damage and
for medical care claims.

b. Duties and Procedures. According to AR 27?20, chapter 14,
the Commander, USARCS, has supervisory responsibility over the
administrative processing of property and medical care claims by
RJAs. The Commander, U.S. Army Health Services Command
(HSC), has supervisory responsibility over the Third Party Collec-
tion Program (TPCP). The HSC TPCP Implementation Plan effects
DOD Instruction 6010.15 and establishes procedures for processing
TPC claims. The Litigation Division, in conjunction with DOJ and
U.S. Attorneys, is responsible for.pursuing, through litigation,
claims not resolved administratively. DOJ is responsible ultimately
for initiating litigation for the United States. (23 USC 515.)

c. Assertion of claims on behalf of the United States by private
attorneys. The Army incurs potentially recoverable expenses when it
provides medical care to soldiers or family members injured by
tortfeasors (for example, a soldier is hospitalized after an automo-
bile accident). When injured personnel employ a private attorney to
sue the tortfeasor, it may be in the Government?s best interests to

enter into an agreement with the private attorney to include the
Army?s medical care claim.

at. Statute of limitations. There is a 3 year statute of limitations
for actions in favor of the U.S. for money damages founded upon
tort. (28 USC Limitation periods can vary, however,
depending upon the theory of liability and the jurisdiction involved.
RJAs must be alert to the applicable limitation period. A case
referred for litigation should arrive at the Litigation Division at least
6 months before the expiration of the limitation period.

e. Reporting of recoveries. Amounts recovered through litigation
will be reported to USARCS by Tort Branch, Litigation Division,
or, where referred directly to a U.S. Attorney or the Nationwide
Central Intake Facility (NCIF), by the responsible RJA.

5-2. Referral of medical care and property claims for
litigation

a. Criteria for referral. The RJA will forward the claims ?le and
a litigation report (see para 5-3) through USARCS to the Litigation
Division when the claim has not been resolved administratively and
any of the following conditions exist:

(1) The claim exceeds $5,000.

(2) The claim involves collection from the injured party or his or
her attorney.

(3) The claim raises an important question of policy.

(4) There is potential for a signi?cant precedent.

b. Alternative methods. When none of the conditions cited in the
preceding subparagraph are present, the RJA may refer the claim
directly to the US. Attorney for the district in which the prospective
defendant resides. Similar property claims may be referred through
USARCS to Nationwide Central Intake Facility (NCIF)
rather than directly to the U.S. Attorney. Notice of all such referrals
shall be provided through USARCS to Tort Branch, Litigation Divi-
sion. The RJA should be ready to provide support to the U.S.
Attomey if requested.

c. Closing Files. A ?le referred directly to the U.S. Attorney will
be closed if the U.S. Attorney determines ?irther action is unwarran-
ted. If the RJA disagrees, the file should be forwarded with the
recommendation through USARCS to the Litigation Division.

5-3. Preparation of claims for litigation

a. General. In preparing a referral for litigation, the RJA will
ensure the ?le contains at least the following:

(1) A litigation report (see para 3-9) that demonstrates a factual
basis for the claim and a theory of recovery under applicable State
law. (See Federal Rules of Civil Procedure 11)

(2) Copies of all medical records and bills re?ecting the reasona-

ble value of the medical care furnished to the injured party, includ-

ing DA Form 263l~R (Medical Care-Third Party Liability

AR 27-40 - 19 September 1994



Noti?cation), and DA Fonn 3154 (MSA Invoice and Receipt).
These documents should be authenticated as necessary on a DA
Form 4.

(3) Copies of all documents necessary to establish the value of
lost or damaged property.

b. Transmittal letter. The letter of transmittal referring the claim
for litigation should brie?y summarize the facts giving rise to the
claim and the collection actions previously taken by the Army and
the injured party.

Section II
Assertion of Other Claims

5-4. Referral to the Litigation Division

a. General. The majority of cases ?led on behalf of the United
States will fall under section I of this chapter. All other civil cases
that cannot be resolved administratively or by direct referral to DOJ
will be forwarded through channels to the Litigation Division with a
litigation report. (See para 3-9.)

b. Government contractors. It may be in the Government?s best
interest to authorize a Government contractor, whose contract
provides for the reimbursement of necessary legal expenses, to em-
ploy private counsel to initiate legal proceedings against a third
party. To obtain authorization to employ private counsel in such
instances the contractor should follow the procedures in paragraph
347c of this regulation.

5-5. Proceedings to repossess Government real property
or quarters or to collect delinquent rent

a. General. U.S. Attorneys are authorized to accept a Federal
agency?s request for the following purposes: to initiate an action to
recover possession of real property from tenants, trespassers, and
others; to enjoin trespasses on Federal property; and, to collect
delinquent rentals or damages for use and occupancy of real prop-
erty for amounts less than $200,000.

b. Procedures. When eviction or an action to collect delinquent
rent is necessary, the SJA or legal adviser will notify General
Litigation Branch, Litigation Division, of the situation. If approved
by the Litigation Division, the SJA or legal adviser may ask the
U.S. Attorney to ?le suit. A copy of the complaint will be sent to
the Litigation Division. DOJ can take action to evict the occupants
for violation of the terms of occupancy and collect delinquent rent
or other charges. Once the matter has been referred to the US.
Attorney, payments for rent should be sent to the U.S. Attorney.
(See AR 210-50, chap 2.)

Chapter 6
Environmental Litigation

6-1. Scope

This chapter contains guidance, policies, and procedures applicable
to all environmental and natural resources civil litigation and admin-
istrative proceedings involving missions and ?inctions of DA, its
major and subordinate commands, all installations presently or
previously managed by DA, and all other sites or issues in which
DA has a substantial interest. In this chapter, ?litigation? includes
civil administrative proceedings.

6-2. Duties and procedures

a. Water Rights. The Environmental Law Division will conduct
direct liaison with DOJ and will represent DA in State and Federal
litigation relating to availability and allocation of surface and
ground water and the establishment and protection of water rights
for Army military installations and activities. This will include liti-
gation in State general adjudications of water rights under the
McCarran Amendment, 43 USC 666, for Army military installations
and activities. Such litigation relating solely to COE civil works

33707

projects or activities will be handled by attomeys under the techni-
cal supervision of the Chief Counsel, COE. With respect to any
general adjudication which could affect the civil works or real
property ?inctions of COE, The Judge Advocate General, acting
through the Chief, Environmental Law Division, and the Chief
Counsel, COE, will determine jointly which office should maintain
primary direct liaison with DOJ and will scope and execute appro-
priate coordination with each other and with the General Counsel
with respect to that litigation.

b. Navigable Waters. The Chief Counsel, COE, will conduct di-
rect liaison with and represent DA in civil litigation involving
activities in or across navigable waters of the United States or other
activities regulated under the Rivers and Harbors Act of 1899, 33
USC 401 et seq.

c. Waters of the United States. The Chief Counsel, COE, will
conduct direct liaison with DOJ and represent DA in civil litigation
involving The Clean Water Act 404 (See 33 USC 1344) permit
authority of COE over the discharge of dredged or ?ll material into
waters of the United States.

d. Enforcement. Environmental Law Division will conduct direct
liaison with DOJ and represent DA in all civil litigation involving
citizen or State enforcement of applicable State, Federal, and local
requirements respecting the control or abatement of pollution and
involving the management of hazardous wastes, with respect to the
missions and functions of, and Federal facilities owned or controlled
by, DA, except for civil works facilities.

e. Environmental Response.

(1) Except as provided in (2) below, the Environmental Law
Division will conduct direct liaison with DOJ and represent DA in
all civil litigation seeking declaratory or injunctive relief or involv-
ing claims of Army liability for the costs of response at Federal
facilities currently owned or controlled by DA and at other sites
where the Army potentially is a responsible party.

(2) The Chief Counsel, COE, will conduct direct liaison with
DOJ and represent DA in all civil litigation seeking declaratory or
injunctive relief or involving claims of Army liability for the costs
of response at civil works facilities, at former defense sites or at
other sites where the Army potentially is a responsible party due to
the response actions of the COE or its contractors.

Fish and Wildli?e, and Plants. The Environmental Law Divi-
sion will conduct direct liaison with DOJ and represent DA in civil
litigation involving citizen or State enforcement of applicable State,
Federal, and local laws governing conservation of plant, ?sh, and
wildlife resources at Federal facilities owned or controlled by DA,
except that such litigation relating solely to the real estate, civil
works, navigation and Clean Water Act 404 (See 33 USC 1344)
permit functions and activities of the COE will be handled by
attorneys under the technical supervision of the Chief Counsel,
COE.

g. Toxic Torts.

(1) Except as otherwise provided in this regulation, The Environ-
mental Law Division will conduct direct liaison with DOJ and
represent DA in all civil litigation involving claims of tort liability
for exposure to environmental contamination emanating from Fed-
eral facilities owned or controlled by DA.

(2) The Litigation Division will conduct liaison with DOJ and
represent DA in civil litigation involving claims of tort liability for
singular and discrete incidents of exposure to environmental con-
tamination emanating from any Federal facility owned or controlled
by DA.

(3) The Chief Counsel, COE, will conduct direct liaison with
DOJ and will represent DA in civil litigation involving claims of
tort liability for exposure to environmental contamination (including
singular and discrete incidents) emanating from any civil works
activities under the jurisdiction of the Secretary of the Army.

(4) The Chief Counsel, COE, and the Chief, Environmental Law

AR 27-40 - 19 September 1994 13

Division, will confer and jointly determine which office will con-
duct direct liaison with and represent DA in civil litigation
involving all other claims of toxic tort liability.

Chapter 7
Release of Information and Appearance of

Sec?onl
Scope

7-1. General

a. Introduction. This chapter implements DOD Directive 5405.2
(Seeappendix and 32 CFR 97.) It governs the release of of?cial
information and the appearance of present and former DA personnel
as witnesses in response to requests for interviews, notices of depo-
sitions, subpoenas, and other requests or orders related to judicial or
quasi-judicial proceedings. Requests for records, if not in the nature
of legal process, should be processed under AR 25?55_or AR
340-21. This chapter pertains to any request for witnesses, docu-
ments, or infonnation for all types of litigation, including requests
by private litigants, requests by State or U.S. attorneys, requests by
foreign officials or tribunals, subpoenas for records or testimony,
notices of depositions, interview requests, civil cases, criminal
proceedings, private litigation, or litigation in which the United
States has an interest.

b. De?nitions. (See glossary.)

7-2. Policy

a. General Rule. Except as authorized by this chapter, present or
former DA personnel will not disclose of?cial information (see
glossary) in response to subpoenas, court orders, or requests.

I). Exception. Present or former DA personnel may disclose of?-
cial information if they obtain the written approval of the appropri-
ate SJA or legal adviser or the Litigation Division.?

c. Referral to deciding o?icial. If present or former DA personnel
receive a subpoena, court order, request for attendance at a judicial
or quasi-judicial proceeding, or request for an interview related to
actual or potential litigation, and it appears the subpoena, order, or
request seeks disclosures described in a above, the individual imme-
diately should advise the appropriate SJA or legal adviser. If the
SJA or legal adviser informally cannot satisfy the subpoena, order,
or request per sections II and of this chapter, he or she should
consult with the Litigation Division.

d. Requester ?s responsibilities. Individuals seeking of?cial infor-
mation must submit, at least 14 days before the desired date of
production, a speci?c written request setting forth the nature and
relevance of the official information sought. (Requesters can be
referred to 32 CFR 516, subpart G, which codifies this regulation).
Subject to paragraph 7?8a of this regulation, present and former DA
personnel may only produce, disclose, release, comment upon, or
testify concerning those matters speci?ed in writing and properly
approved by the SJA or legal adviser or the Litigation Division.
(See United States ex. rel. Touhy v. Ragen. 340 U.S. 462 (1951).)

e. Litigation in which the United States has an interest. If a
subpoena, order, or request relates to litigation in which the United
States has an interest and for which litigation responsibility has not
been delegated, the SJA or legal adviser will coordinate with the
Litigation Division under paragraph 7-3 of this regulation.

Motions to stay or quash subpoenas. A subpoena should never
be ignored, and an SJA or legal adviser should seek assistance from
Litigation Division or the U.S. Attomey?s of?ce whenever neces-
sary. If a response to a subpoena or order is required before a
release determination can be made or before the Litigation Division
or the U.S. Attorney can be contacted, the SJA or legal adviser will
do the following:

33708

(1) Furnish the court or tribunal a copy of this regulation (Re-
printed in 32 CFR 516, subpart G) and applicable case law (See
United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951).)

(2) Inform the court or tribunal that the requesting individual has
not complied with this chapter, as set out in 32 C.F.R. Parts 97
516, or that the subpoena or order is being reviewed.

(3) Seek to stay the subpoena or order pending the requestor?s

compliance with this chapter or ?nal determination by the Litigation

Division. .

(4) If the court or other tribunal declines to quash or stay the
subpoena or order, inform Litigation Division immediately so a
decision can be made whether to challenge the subpoena or order. If
the Litigation Division decides not to challenge the subpoena or
order, the affected personnel will comply with the subpoena or
order. If the Litigation Division decides to challenge the subpoena
or order, it will direct the affected personnel to respectfully decline
to comply with the subpoena or order. (See United States ex. rel.
Touhy v. Ragen, 340 U.S.462 (1951).)

g. Classi?ed or sensitive information. Only Litigation Division
may authorize the release of of?cial information or appearance of
DA personnel as witnesses in litigation involving terrorism, espio-
nage, nuclear weapons, or intelligence sources and methods.

It. Requests for Inspector General records or testimony. IG re-
cords, and information obtained through performance of IG duties,
are of?cial information under the exclusive control of the Secretary
of the Army. (See AR chap 3.) IG records frequently contain
sensitive of?cial information that may be classi?ed or obtained
under guarantees of con?dentiality. When justification exists, DA
attorneys will seek court protection from disclosure of 1G records
and information. DA personnel will not release IG records or dis-
close information obtained through performance of IG duties with-
out the approval of the Secretary of the Anny, The Inspector
General, TIG Legal Advisor, or the Chief, Litigation Division.
When IG personnel receive a subpoena, court order, request for
attendance at a judicial or quasi-judicial proceeding, or a request for
an interview that the IG reasonably believes is related to actual or
potential litigation concerning IG records or related information,
they should immediately notify The Inspector General Legal Ad-
viser or the Chief, Litigation Division. IG personnel will follow the
guidance of this chapter concerning actions to be taken regarding
disclosure and testimony.

7-3. Referral to HQDA

a. General. If the SJA or legal adviser is unable to resolve the
matter, it will be referred for approval or action by the Litigation
Division under this chapter, by the most expeditious means, to
General Litigation Branch, Litigation Division, with the following
exceptions:

(1) Those involving a case assigned to another branch of Litiga-
tion Division will be submitted to that branch (appendix B).

(2) Those involving affirmative litigation (for example, medical
care recovery or Army property damage or loss cases) under chapter
5 will be submitted to Tort Branch.

(3) Those involving patents, copyrights, privately developed tech-
nical information, or trademarks will be submitted to the Intellectual
Property Law Division.

(4) Those involving taxation will be submitted to the Contract
Law Division.

(5) Those involving communication, transportation, or utility
service proceedings will be submitted to the Regulatory Law Of?ce.

(6) Those involving environmental matters will be submitted to
the Environmental Law Division.

(7) Those involving contract appeals cases before the ASBCA
will be submitted to the Contract Appeals Division.

(8) Those involving procurement fraud, including Qui Tam cases,
will be submitted to the Procurement Fraud Division.

b. Information to be submitted When referring matters pursuant
to a above, the following data should be provided:

(1) Parties (named or prospective) to the proceeding, their attor-
neys, and case number, where appropriate.

14 AR 27-40 19 September 1994

(2) Party making the request (if a subpoena, indicate moving
party) and his or her attorney.

(3) Name of tribunal in which the proceeding is pending.

(4) Nature of the proceeding.

(5) Date of receipt of request or date and place of service of
subpoena.

(6) Name, grade, position, and organization of person receiving
request or served with subpoena.

(7) Date, time, and place designated in request or subpoena for
production of infonnation or appearance of witness.

(8) Nature of information sought or document requested, and
place where document is maintained.

(9) A copy of each document requested. Contact the appropriate
office if this would be burdensome and unnecessary to a
decision whether to release, redact, or withhold a particular
document.

(10) Name of requested witness, expected testimony, requested
appearance time and date, and whether witness is reasonably
available.

(11) Analysis of the problem with recommendations.

Section II
Release of Records in Connection With Litigation

7-4. Release of Army and other agency records

a. Preservation of originals. To preserve the integrity of DA
records, DA personnel will submit properly authenticated copies
rather than originals of documents or records for use in legal
proceedings, unless directed otherwise by the Litigation Division.
(See 28 USC 1733.)

b. Authentication of copies. Copies of DA records approved for
release can be authenticated for introduction in evidence by use of
DA Fonn 4. (See para 3-11 for instructions.)

(1) Records maintained in U.S. Army Engineer Districts and Di-
visions will be forwarded to HQDA (CECC-K), WASH DC
20314-1000.

(2) All other records will be fonivarded to the appropriate office
at HQDA. (See para 7-3 above.)

c. Fees and charges. AR 37-60 prescribes the schedule of fees
and charges for searching, copying, and certifying Anny records for
release in response to litigation-related requests.

Release of records of other agencies". Normally, an individual
requesting records originating in agencies outside DA (that is, FBI
reports, local police reports, civilian hospital records) that are also
included in Anny records should be advised to direct his or her
inquiry to the originating agency.

7-5. Determination of release authorization?
a. Policy, DA policy is to make official infonnation reasonably

available for use in Federal and State courts and by other Govern-

mental bodies unless the information is classi?ed, privileged, or
othenvise protected from public disclosure.

b. Releasability factors. In deciding whether to authorize release
of official information, the deciding official should consider the
following:

(1) Has the requester complied_ with DA policy governing the
release of official documents in paragraph 7-2d above?

(2) Is the request unduly burdensome or othenrvise inappropriate
under the applicable court rules?

(3) Is the disclosure appropriate under the rules of procedure
governing the matter in which the request arose?

(4) Would the disclosure violate a statute, executive order, regu-
lation, or directive?

(5) Is the disclosure appropriate under the relevant substantive
law concerning privilege?

(6) Would the disclosure reveal infonnation properly classi?ed
pursuant to the DOD Information Security Program under AR
380-5, unclassified technical data withheld from public release pur-
suant to 32 CFR 250, or other matters exempt from unrestricted
disclosure?



33709

(7) Would disclosure interfere with ongoing enforcement
proceedings, compromise constitutional rights, reveal the identity of
an intelligence source or confidential informant, disclose trade se-
crets or confidential, commercial, or ?nancial infonnation, or, other-
wise be inappropriate under the circumstances?

(8) Would the disclosure violate any person?s expectation of con-
fidentiality or privacy??

7-6. Records determined to be releasable-

If the deciding official, after considering the factors set forth in
paragraph 7-5 above, determines that all or part of requested official
records are releasable, copies of the records should be fumished to
the requester.

7-7. Records determined not to be releasable

a. General. If the deciding official, a?er considering the factors
in paragraph 7-5 above, detennines that all or part of requested
official records should not be released, he or she will communicate
and directly with the attorney or individual who caused the
issuance of the subpoena, order, or request and seek to resolve the
matter informally. If the subpoena or order is invalid, he or she
should explain the basis of the-invalidity. The deciding official
should also explain why the records requested are privileged from
release. The deciding official should attempt to obtain the agreement
of the requester to withdraw the subpoena, order, or request or to
modify the subpoena, order, or request so that it pertains only to
records which may be released. (See fig 7-1, Sample Touhy letter.)

17. Information protected by the Privacy Act.

(1) A subpoena duces tecum or other legal process signed by an
attorney or clerk of court for records protected by the Privacy Act, 5
USC 552a, does not justify the release of the protected records. The
deciding official should explain to the requester that the Privacy Act
precludes disclosure of records in a system of records without the
written consent of the subject of the records or ?pursuant to the
order of a court of competent jurisdiction.? (See 5 USC
552a(b)(l An ?order of the court? for the purpose of subsection
5 USC 552a(b)(1 1), is an order or writ requiring the production of
the records, signed by a judge or magistrate.

(2) Unclassified records otherwise privileged from release under
5 USC 552a may be released to the court under either of the
following conditions:

The subpoena is accompanied by an order signed by a judge
or magistrate, or such order is served separately, that orders the
person to whom the records pertain to release the specific records,
or that orders copies of the records be delivered to the clerk of
court, and indicates that the court has detennined the materiality of
the records and the nonavailability of a claim of privilege.

The clerk of the court is empowered by local statute or
practice to receive the records under seal subject to request that they
be withheld from the parties until the court determines whether the
records are material to the issues and until any question of privilege
is resolved.

(3) Subpoenas for alcohol abuse or drug abuse treatment records
must be processed under 42 USC 290dd-3 and 290ee-3, and Public
Health Service regulations ?published at 42 CFR 2.1 - 2.67.

(4) Upon request, SJAS and legal advisers may ?imish to the
attorney for the injured party or the tortfeas0r?s attorney or insur-
ance company a copy of the narrative summary of medical care that
relates to a claim under chapter 5 of this regulation. If additional
medical records are requested, only those that directly pertain to the
pending action will be fumished. If fumishing copies of medical
records would prejudice the cause of action, the matter will be
reported to the Litigation Division.

c. Referral to the Litigation Division. If the SJA or legal adviser
is not able to resolve a request for Army records informally, he or
she should contact the Litigation Division.

(1) The Litigation Division may respond to subpoenas or orders
for records privileged from release by infonning the local U.S.
Attorney about the subpoena and requesting that office ?le a motion
to quash the subpoena or a motion for a protective order. The

AR 27-40 - 19 September 1994 15



33710

records privileged from release should be retained by the custodian
pending the court's nilingupon the Govemment's motion.
(2) Whenamotion to quash or foraprotective order is not filed,
orthemotionisunsuccessfiiLandtheappropriateDAofficialhas
determinedthatno fiirthereffbrts will be made toprotect therecords, copies of the records (authenticated if necessary) will be
submitted to the court (or tothe clerkofcourt)inresponsetothe
subpoena or order.
^. C^^.^.^^^^^^^^^^v^7^^^^^^^^^^7^^,^. RequestsfromDOJ,U.S.
Attomeys,orattomeysfor other Govemmentalentitiesfor records
that are classifiedorotherwiseprivilegedfrom release willbereferred to the Litigation Division. (See para 7-2^.)
Section 111
DAPersonnel as^itnesses in PrivateLitigation
^-8. Response to subpoenas, orders, or requests for
witnesses
^. ^^^^^^^.The involvement of present or former DA personnel in
private litigation is solelyapersonal matter between the witness and
the requesting party, unless one or more of the following conditions
apply:
(1) The testimony involves official information.(See glossary.)
(2) The witness is to testify as an expert.
(3) The absence of the witness from duty willinterfere seriously
with the accomplishment of a military mission.
^. ^^^^^^TOBt
Former DA personnel may freely respond to requests for interviews and subpoenas except in instances
involving official information (^(I) above) or conceming expert
testimony prohibited by paragraph7-10below. Inthoseinstances,
the subject ofthe request or subpoena should take the action specified in paragraphs 7-2^ and 7-3 ofthis regulation.
c. ^^^.^^^^ 70BI p^^.^^^^^^. Present DA personnel will refer all
requests for interviews and subpoenas for testimony in private litigation through their supervisor to the appropriate SJA or legal adviser.
^. 70^.^^^^^^^^^
Any individual not wishing to grant an
Interview or to testify concerning private litigation may seek the
advice of an Army attomey conceming the consequences, if any, of
refusaL Any individual not authorized to consult with Army counsel
should consult with private counsel, at no expense to the
Govemment
^-9. Official Information
^. In instances involving paragraph 7-8^(1) above, the matter
will be referred to the SJA or legal adviser serving the organization
ofthe individual whose testimony is requested, ortoHQDApursuant to paragraph7-3^ above.The deciding official will determine
whether to release the information sought under the principles estab1ishedinparagraph7-5above. If fundingby theUnited Statesis
requested, see paragraph 7-16^of this regulation.
^. Ifthe deciding official determines that the information may be
released, the individual will be permitted to be interviewed, deposed, or to appear asawitness in court provided such interview or
appearance is consistent withthe requirements of paragraphs7-10
and 7-11 below. (See, forexample, fig7-2.)AJA or DA civilian
attomey should be present during any interviewor testimony to act
as legal representative of the Army.Ifaquestion seeks information
notpreviouslyauthorizedfor release, the legal representative will
advise the witness not to answer. Ifnecessary to avoid release ofthe
information,thelegalrepresentativewilladvisethe witness toterminatetheinterviewor deposition, orin thecase of testimony in
court, advise the judge that DOD directives and Army regulations
preclude the witness from answering without HQDA approvaL
Every effort should be made, however, to substitute releasable information and to continue the interview or testimony.
^-10. Expert witnesses
^.
Present DA personnel will not provide, wither
without compensation, opinion or expert testimony either in private
litigation or in litigation in which the United States has an interest

16

for a party other than the United States. Former DA personnel will
not provide, with or without compensation, opinion or expert testimony concerning official information, subjects, or activities either in
private litigation or in litigation in which the United States has an
interest for a party other than the United States. (See fig 7-3.) An
SJA or legal adviser is authorized to deny a request for expert
testimony, which decision may be appealed to the Litigafion
Division.
b. Exception to the general prohibition. If a requester can show
exceptional need or unique circumstances, and the anticipated testimony will not be adverse to the interests of the United States, the
Litigation Division may grant special written authorization for present or former DA personnel to testify as expert or opinion witnesses
at no expense to the United States. In no event, may present or
former DA personnel furnish expert or opinion testimony in a case
in which the United States has an interest for a party whose interests
are adverse to the interests of the United States.
c. Exception for AMEDD personnel. Members of the Army medical department or other qualified specialists may testify in private
litigation with the following limitations (see fig 7^):
(1) The litigation involves patients they have treated, investigations they have made, laboratory tests they have conducted, or other
actions they have taken in the regular course of their duties.
(2) They limit their testimony to factual matters such as the
following: their observations of the patient or other operative facts;
the treatment prescribed or corrective action taken; course of recovery or steps required for repair of damage suffered; and, contemplated future treatment.
(3) Their testimony may not extend to expert or opinion testimony, to hypothetical questions, or to a prognosis.
d. Court-ordered expert or opinion testimony. If a court or other
appropriate authority orders expert or opinion testimony, the witness
will notify the Litigation Division immediately. If the Litigation
Division determines it will not challenge the subpoena or order, the
witness will comply with the subpoena or order. If directed by the
Litigation Division, however, the witness will decline respectfully to
comply with the subpoena or order. (See United States ex. rei
Touhy V. Ragen, 340 U.S. 462 (1951).)
e. Expert witness fees. All fees tendered to present DA personnel
as an expert or opinion witness, to the extent they exceed actual
travel, meals, and lodging expenses of the witness, will be remitted
to the Treasurer of the United States.

7-11. Interference with mission
If the absence of a witness from duty will interfere seriously with
the accomplishment of a military mission, the SJA or legal adviser
will advise the requesting party and attempt to make altemative
arrangements. If these efforts fail, the SJA or legal adviser will refer
the matter to the Litigation Division.

Section IV
Litigation in Which the United States Has an Interest
7-12. Response to subpoenas, orders, or requests for
witnesses
a. Referral to a deciding official. Requests, subpoenas, or orders
for official information, interviews, or testimony of present or former DA personnel in litigation or potential litigation in which the
United States has an interest, including requests from DOJ, will be
resolved by the SJA or legal adviser pursuant to the principles of
this chapter. The Litigation Division will be consulted on issues that
cannot be resolved by the SJA or legal adviser.
b. Reassignment of witnesses. When requested by the U.S. Attorney, the SJA or legal adviser will ensure that no witnesses are
reassigned from the judicial district without advising the DOJ attorney. If a witness is vital to the Govemment's case and trial is
imminent, the SJA or legal adviser should make informal anangements to retain the witness in the command until trial. If this is not
feasible, or if a satisfactory arrangement cannot be reached with the

AR 27-40 • 19 September 1994

33711

DOJ attomey, the SJA or legal adviser should ootl^ the Litigation
Division.

funds for other than local travel and will receive reimbursement
from DOJor other Govemment agencies as appropriate.

7-13. Expert witnesses

7-18. WitnessesforaStateor private litigant

Requests for present or formerDApersonnel asexpert oropinion
witnesses from DOJ or other attomeys representing the United
States willbe refenedtotheLitigationDivisionunless therequest
involvesamatter that has been delegated by the Litigation Division
to an SJA or legal adviser. In no event, may present or former DA
personnel furnish expert or opinion testimony inacase in which the
United States has an interest foraparty whose interests are adverse
to the interests of the United States.

7-14. I^ews media and other inquiries
News media inquiries regarding litigation or potential litigation will
be refened to the appropriate public affairs office. DApersonnel
will not comment on any matter presently or potentially in litigation
without proper clearance. Local public affairs officers will refer
press inquiries to HQDA (SAPA),WASH DC 20310^I500,with
appropriate recommendations for review and approval by the Office
ofthe ChiefofPublic Affairs. All releases ofinformation regarding
actualorpotentiallitigation willbe coordinated with theLitigation
Division prior to release.

Sections
Status,TraveLand E^pensesof Witnesses
7-12. Witnessesfor tbe United States
^. ^^^^^.^^^^7^^.^.^. Asoldierauthorizedto appear asawitness
forthe United States, including those authorized to appear under
paragraph7-16^below,wil1 be placed on temporary duty.IfUSAR
orNG personnelarerequested as witnessesfor theUnited States,
and if their testimony arises from their active duty service, they
should be placed on active duty totestify.The status ofacivilian
employee will be determined under Federal Personnel Manua1 630,
subchapterlO. DA personnel who appear as necessary witnesses for
aparty asserting the Govemment's claim for medical care expenses
are witnesses forthe United States.
^. T^^^v^^
Travel anangements for witnesses for
the United States normally are made by fOOJthrough the Litigation
Division forotherthan local traveL TheLitigationDivision will
issue instmctions for this traveL including fund citation, to the
appropriate commander. AU.S. Attomey,or an attorney asserting
the Govemment's medical care claim under chapter5of this regulation, may makeanangements for local travel throughthe SJA or
legal adviser for attendance of a witness who is stationed at an
installationwithinthesamejudicialdistrict,ornotmorethan 100
miles from the place where testifying. Other requests, including
those under paragraph7-16^ below, willberefenedtotheLitigationDivision.Theinstructionsfrom theLitigationDivision,orthe
request from the U.S. Attorney or the attomey asserting the Government's claim, willserve asabasis forthe issuanceof appropriate
travel ordersby the local commander.
The witness' commander or
c. T'^^i^^^^^^^^^^^^^^
supervisor should ensure that the witness has sufficient funds to
defrayexpenses.TheSJAor legaladviser willprovide assistance.
(1) Where local travel is performed at the request of a U.S.
Attomey and the testimony does not involve information acquired in
the performanceof duties, transportation anangements (costs) and
any per diem expenses are the responsibility of the U.S. Attorney.
(2) An attomey asserting the Govemment's medical care or propertyclaimmayberequiredtoadvancelocaltravelexpensemoney
to the witnessrequestedand to include these in recoverablecosts
where the Govemment's claim is not large enough tojustify expenditures of Government travel funds.
(3) Other localtravel and per diem expensesforcasesinvolving
Army activities or claims are proper expenses of the command
issuing the orders.
(4) Litigation Divisionwillfumishtravelexpense and per diem

^. ^^^^^.^
If authorized to appear as a witness for a
State or private litigant, and the testimony to be given relates to
information obtained in the performance of official duties,asoldier
will attend inapermissivcTDystatus. If authorized to appear asa
witness, but the testimony does not relate to information obtained in
the performance ofofficialduties,asoldier may be grantedapass
or permissiveTDyunderAR 630-5,or be required to take ordinary
leave.Thestatusofacivilianemployee willbe determinedunder
Federal Personnel Manual 630, subchapter 10.
^. T'^^^^
The requesting party or State agency
will makeall travel anangements forattendance ofDA personnel
authorized to appear as witnesses foraState or private litigantThe
local commander may issue appropriate orders when necessary.
^. 7^^ov^^^^^^.^^.^.The United States may not pay traveL meals,
and lodging expenses of the witness,other than normalallowances
for subsistence pursuant totheDODMilitaryPay and Allowances
Entitlements ManuaL These expenses are solely a matterbetween
thewitnessandtheparty seeking his or her appearance. Witnesses
ordinarily should be advised to require advance payment ofsuch
expenses.Soldiers authorized to appear inapass or permissiveTDy
statusarenotentitledtoreceivewitnessattendancefees,butmay
accept traveL meals, and lodging expense money from the requesting litigant All witness fees tendered the soldier, to the extent they
exceed such actualexpenses of the member,willbe remitted tothe
Treasurer of the United States. A civilian employee authorized to
appear in his or her official capacity will accept the authorized
witness fees, in addition to the allowance for travel and subsistence,
and make disposition of the witness fees as instructed by his or her
personnel office.
^. .^^^^^T^^^y
^^^7^^,^^^^^.^. Requests forDApersonnel to
appear at Govemment expense as witnesses in State or local
proceedings foraparty other than the United States, including cases
involvingdomestic violence or child abuse, willbe refened tothe
Litigation Division. The Litigation Division may authorize travel
and per diem expenses under paragraph7-15 above whenthe case
is one in which the United States has a significant interest
7-17. Witnesses beforeforeign tribunals
^. .^^^^^^
,^7^. Requests or subpoenas from a foreign
Govemment or tribunalfor present DA personnelstationed or employed within that country tobe interviewedor to appear as witnesses will be forwarded to the SJA of the command exercising
general court martial jurisdiction over the unit to which the individual is assigned, attached,oremployed.The SJA willdetermine the
following:
(1) Whetheraconsideration listed in paragraph7-8^(1)through
(3) above applies.
(2) Whether the information requested is releasable under the
principles established in section II of this chapter.
(3) Whetherthe approval ofthe American Embassy shouldbe
obtainedbecause the person is attached to theEmbassy staff ora
question of diplomatic in^unity may be involved.
^. ^^^7^^
^^.^
17^^^^^.^^
^^7^^^^^7^^. If the SJA
determines that the United States has an interest in the litigation, the
commander may authorize the interviewororderthe individual's
attendance in a temporary duty status. The United States will be
deemed to have an interest in the litigation if it is bound by treaty or
other intemational agreement to ensure the attendance of such
personneL
^. ^^^7^^
^^.^
^7^^^^^.^^
^^7^^^^^^7^^. If the SJA
determines that theUnited Statesdoes nothavean interest in the
litigation, the commander may authorize the interview or the appearance of the witness under the principles established in section I l l o f
this chapter.
^. ^^7^^.^.^^.^ ^^^^^^^ ^^^^.^^^^^
^^^^^.^^^^'.^ ^o^^^^. Ifthe requested witnessis stationed inacountry other thantherequester's,
the matter will be refened tothe Litigation Division.

AR 2 7 ^ 0 ^ 1 9 September 1994

17

33712

DEPARTMENT OF THE ARMy
OFFICE OF THE STAFF JUDGE ADVOCATE
FORT SMITH, NORTH DAI^OTA 84165
15 April 1993
Mr. T. Hudson Taylor
Attomey At Law
105 Hay Street
Whynot, ND 84167
Dear Mr. Taylor;
We have leamed that you subpoenaed Captain Roberta Selby to testify at a deposition in the case Kramer v, Kramer,
cunently filed in State court, and that you directed her to bring her legal assistance file conceming her client, SSG Kramer.
Under 32 CFR 97.6(c), 516.35, and 516.40, the Army must authorize the appearance of its personnel or the production of
official documents in private litigation. In this case, the Army cannot authorize Captain Selby to appear or produce the
requested file absent the following:
You must request in writing her appearance and the production of the file in accordance with Department of Defense
directives, 32 CFR 97.6(c), and Army regulations, 32 CFR 516-34 - 516.40. The request must include the nature of the
proceeding, 32 CFR 516.34(b), and the nature and relevance of the official information sought. W. 516.35(d). We cannot act
on your request until we receive the required information. See, for example. United States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951); Boron Oil Co. v.Downie, 873 F.2d 67 (4th Cir. 1989); UnitedStates v. Bizzard, 674 F.2d 1382 (11th Cir.
1982); United States v. Marino, 658 F.2d 1120 (6th Cir. 1981); United States v. Allen, 554 F.2d 398 (10th Cir. 1977).
To overcome federal statutory restrictions on the disclosure of the requested file imposed by the Privacy Act, 5 USC
552a, you must provide either a written release authorization signed by the individual to whom the file pertains (that is,
SSG Kramer) or a court ordered release signed by a judge of a court of competent jurisdiction. A subpoena signed by a
clerk of court, notary, or other official is insufficient. See, for example. Doe v. DiGenova, 779 F.2d 74 (D.C. Cir. 1985).
In this case, because of the attomey-client relafionship between Captain Selby and SSG Kramer, you must produce a
written waiver of the attomey-client privilege from SSG Kramer. Because the privilege may protect both documents and
testimony. Captain Selby may not divulge such information without SSG Kramer's consent. See, for example, Rule of
Professional Conduct for Army Lawyers 1.6(a).
In addition to the above requirements. Captain Selby's supervisor must approve her absence from duty. See 32 CFR
516.43. In this regard, we suggest you take the deposition at Fort Smith. In any event, however, you or your client must pay
all travel expenses, as this is purely private litigation and witness' appearance must be at no expense to the United States.
See id 51648(c).
Finally, if Captain Selby does appear as a witness, she may only give factual testimony. She may not testify as an
opinion or expert witness.This limitation is based on Department of Defense and Army policy that generally prohibits
Government employees from appearing as expert witnesses in private litigation. See id. 97.6(e), 516.42.
Our sole concem in this matter is to protect the interests of the United States Army; the Army will not block access to
witnesses or documents to which you are lawfully entitled. So that the Army can adequately protect its interests in this
matter, I request that you respond to this letter by 27 April 1993. If you have any questions, please call CPT Taylor at 9198824500.
Sincerely,
(Signature)
ROBERT V. JACKANSI
MAJOR, JA
Chief, A d m i n i s t r a t i v e Law
Copy Furnished:
Litigation Division
Figure 7-1. Sample "Touhy" Compliance Letter

18

AR 27^0 • 19 September 1994

33713

OEPARTMENTOFTHEARMY
OFFICE OF THESTAFFJUOOE ADVOCATE
FORTSMIT^, NORT^DA1^0TA84165
15 A p r i l 1^93

Mr. T . Hudson T a y l o r
A t t o r n e y A t Law
105^ay Street
l^hynot, ND84167

Dear M r . T a y l o r :

This l e t t e r responds t o your request t o i n t e r v i e w and depose c a p t a i n Bu^^ Sawyer as a
witness i n ^or^anv.Jone^. Subject t o the f o l l o w i n g c o n d i t i o n s , your request i s approved.
This grant of a u t h o r i t y i s l i m i t e d t o f a c t u a l testimony o n l y , c a p t a i n Sawyer may not
t e s t i f y as an expert witness. This l i m i t a t i o n i s based on Army p o l i c y p r o h i b i t i n g i^overnment employees f r o m a p p e a r i n g a s expert witnesses i n p r i v a t e l i t i g a t i o n , .^ee 32 CFR
516.42. Captain Sawyer may not provide o f f i c i a l i n f o r m a t i o n t h a t i s c l a s s i f i e d , p r i v i leged, o r otherwise p r o t e c t e d from p u b l i c d i s c l o s u r e .
The d e c i s i o n whether t o t e s t i f y i n p r i v a t e l i t i g a t i o n i s w i t h i n the d i s c r e t i o n of the
prospective witness. This a u t h o r i s a t i o n i s also subject t o the approval o f the witness^
supervisors t o be absent during the p e r i o d i n v o l v e d . F i n a l l y , because t h i s i s p r i v a t e
l i t i g a t i o n , the witness^ p a r t i c i p a t i o n must be a t no expense t o t h e U n i t e d S t a t e s . .^ee 32
CFR 516.48.
I f you have any questions, please c a l l CPTTaylor a t 919-882-4500.
Sincerely,
^^^B^^^^^^

ROBERTV. J A ^ l ^ S I
MAJOR, JA
Chief, A d m i n i s t r a t i v e Law
Copy Furnished:
LitigationDivision
Figure 7-^. Sample Fact l^ltness Approval Letter

OEPARTMENT OF THE ARMY
OFFICE OF THE STAFF JUDGE ADVOCATE
FORT SMITH, NORTH DAKOTA 84165
15 A p r i l 1993
Mr. T. Hudson Taylor
Attorney At Law
105 Hay Street
Whynot, ND 84167
Dear Mr. Taylor:

Figure 7-3. Sample Expert Witness Denial Letter

AR 27-40 • 19 September 1994

19

33714

This responds t o y o u r request f o r M r . CharlesMontrose toappear as a n e x p e r t witness i n
p r i v a t e l i t i g a t i o n : ,2niit7ier.2 v. A^^^ideo. For the f o l l o w i n g reasons, the request i s denied.
Army Regulation 27-40 f o r b i d s Army personnel from p r o v i d i n g expert testimony i n p r i v a t e
l i t i g a t i o n , w i t h o r w i t h o u t compensation, except under the most e x t r a o r d i n a r y circumstances. See 32 CFR 97.6(e), 516.42. Several reasons support the exercise of s t r i c t cont r o l over such witness appearances.
The Army p o l i c y i s one of s t r i c t i m p a r t i a l i t y i n l i t i g a t i o n i n which the Army i s not a
named p a r t y , a r e a l p a r t y i n i n t e r e s t , o r i n which the Army does not have a s i g n i f i c a n t
i n t e r e s t , ^hen a witness w i t h an o f f i c i a l connection w i t h the Army t e s t i f i e s , a n a t u r a l
tendency e x i s t s t o assume t h a t the testimony represents the o f f i c i a l view of the Army,
despite express d i s c l a i m e r s t o the c o n t r a r y .
The Army i s also i n t e r e s t e d i n p r e v e n t i n g the unnecessary loss o f the services o f i t s
personnel i n connection w i t h matters u n r e l a t e d t o t h e i r o f f i c i a l r e s p o n s i b i l i t i e s . I f
Army personnel t e s t i f y as expert witnesses i n p r i v a t e l i t i g a t i o n , t h e i r o f f i c i a l d u t i e s
are i n v a r i a b l y d i s r u p t e d , o f t e n a t the expenseof the Army^smissionand the Federal taxpayer.
F i n a l l y , the Army i s concerned about t h e p o t e n t i a l f o r c o n f l i c t of i n t e r e s t inherent i n
the u n r e s t r i c t e d appearance o f i t s personnel as expert witnesses on behalf o f p a r t i e s
other than t h e U n i t e d S t a t e s . Even theappearanceof s u c h c o n f l i c t s of i n t e r e s t s e r i o u s l y
undermines the p u b l i c t r u s t and confidence i n the i n t e g r i t y of our Government.
This case does not present the e x t r a o r d i n a r y circumstances n e c e s s a r y t o j u s t i f y the r e quested witness^ expert testimony. You have demonstrated no e x c e p t i o n a l need o r unique
circumstances t h a t would warrant ( h i s o r h e r ) appearance. The e x p e r t t e s t i m o n y d e s i r e d can
besecured from non-Army sources, consequently, w e a r e u n a b l e t o g r a n t y o u a n e x c e p t i o n t o
the Army^s p o l i c y .
I f you have any questions, please c a l l me o r CPT Taylor at 919-882-4500.
Sincerely,
(.^^^^^^^^^
ROBERTV. JACKANSI
MAJOR, JA
C h i e f , A d m i n i s t r a t i v e Law
Figure7-3.Sample expert Witness Denial Letter-Continued

20

AR 27-40 • 19 September 1994

33715

OEPARTMENTOFTHEARMY
OFFICE OF THESTAFF JUDGE ADVOCATE
FORT SMITH, NORTH OAKOTA84165
15 A p r i l 1993
Mr. T. HudsonTaylor
Attorney At Law
105 Hay Street
Whynot, NO 84167

Dear Mr. Taylor:
This respondsto your r e q u e s t t o depose Or. (MAJ) J. McDonald, Fort Smith M e d i c a l T r e a t ment F a c i l i t y . P u r s u a n t t o 32GFR 516.33-516.49, you may depose him s u b j e c t t o the f o l l o w ing c o n d i t i o n s :
He may t e s t i f y a s t o h i s t r e a t m e n t of h i s p a t i e n t . Sergeant Rock, as t o r e l a t e d l a b o r a t o r y
testshemayhaveconducted, o r o t h e r actionshe t o o k i n t h e r e g u l a r courseof h i s d u t i e s .
He must l i m i t h i s testimony t o f a c t u a l m a t t e r s s u c h a s h i s o b s e r v a t i o n s o f the p a t i e n t or
other operative f a c t s , the treatment prescribed o r c o r r e c t i v e a c t i o n taken, course of
r e c o v e r y o r steps r e g u i r e d f o r treatment o f i n j u r i e s s u f f e r e d , o r c o n t e m p l a t e d f u t u r e
treatment.
His testimony may not extend t o h y p o t h e t i c a l guestions o r t o a prognosis. He may not
t e s t i f y a s an ^^expert.^^ This l i m i t a t i o n isbasedonDepartment of Oefense and Army p o l i c y
p r o h i b i t i n g p r e s e n t or former m i l i t a r y personneland Army c i v i l i a n employees f r o m p r o v i d i n g o p i n i o n o r expert t e s t i m o n y c o n c e r n i n g o f f i c i a l i n f o r m a t i o n , subjects, or a c t i v i t i e s
i n p r i v a t e l i t i g a t i o n , .^ee 32 OFR 97.6(e), 516.42.
The witnesses may not provide o f f i c i a l i n f o r m a t i o n t h a t i s c l a s s i f i e d , p r i v i l e g e d , o r
otherwise p r o t e c t e d from p u b l i c d i s c l o s u r e . T o p r o t e c t t h e A r m y ^ s i n t e r e s t s , OPT Taylor or
another Army a t t o r n e y w i l l be present during the d e p o s i t i o n s .
To overcome r e s t r i c t i o n s imposed by the P r i v a c y A c t , 5 USO 552a, Or. McDonald may not
discuss matters derived from the p a t i e n t ^ s medical records absent the p a t i e n t ^ s w r i t t e n
consent o r a c o u r t order signed b y a judge. Asubpoena issuedbysomeoneother t h a n a judge
o r m a g i s t r a t e i s i n s u f f i c i e n t . .^eeOoev. I^i^enova, 779 F.2d74 (D.C. C i r . 1985)^ .5^i7es^v.
At7anta^a^I,7^7it ^o., 453 F. Supp. 798 (N.O. Ga. 1978).
The d e c i s i o n whether t o t e s t i f y i n p r i v a t e l i t i g a t i o n i s w i t h i n the d i s c r e t i o n of the
witness, subject t o the approval of h i s supervisors t o be absent d u r i n g the p e r i o d i n volved.
F i n a l l y , because t h i s i s p r i v a t e l i t i g a t i o n , the witnesses^ p a r t i c i p a t i o n m u s t be a t no
expense t o the United States. See 32 OFR 516.48.
I f youhave any questions, please c a l l me or OPTTaylor a t 919-882-4500.
Sincerely,

(,^^^^^^^^^7
ROBERTV. JAGKANSI
MAJOR, JA
Ohief, A d m i n i s t r a t i v e Law
Gopy Furnished:
Litigation Division

Flgure74. Sample of Doctor Approval Letter

AR 27-40 ^19 September 1994

21

33716

Chapters
l^emedies in Procurement l^raud and Corruption
8-1. Purpose
This chapter delineates the policies, procedures, and responsibilities
for reporting and resolvingallegationsof procurement fraudor irregularities (PF1) within DA. It implements DOD Directive7050.5.
(See appendix D.)
8-2. Policies
^. Procurement fraud and irregularities will be addressed
promptly and thoroughly whenever encountered. Reports will be
initiated in a timely manner and will be supplemented as
appropriate.
^. Investigations will be monitoredto see that interimcorrective
action is taken and that final action is taken as expeditiously as
possible.
^. This regulation establishes the Procurement Fraud Division
(PFD),U.S.Army Legal Services Agency, as the single centralized
organizationwithinthe Army tocoordinateandmonitorcriminaL
civiLcontractuaL and administrative remedies in significant cases of
fraud or cormption relating to Army procurement
^. Thekeyelementsofthe Army'sprocurementfraudprogram
follow: centralized policy making and program direction; fraud remedies coordination;decentralized responsibility for operational matters, such as reporting and remedial action; continuous case
monitorshipby PFD fiom the initialreport until finaldisposition;
and, command^wide fraud awareness training.
^. Remedies for PFI will be pursued in a timely manner and
properly coordinated with other agencies. Every effort will be made
to support criminal investigation and prosecution of fraudulent
activity.
7^ A specificremedies plan willbe formulated foreachsignificant case of fraud or cormption involving procurement
^. Coordination on the status and disposition of cases will be
maintained between PFD, OTJAG, PFI Coordinators at MACOMs,
and Procurement Fraud Advisers(PFA)atsubordinatecommands.
Coordinationof procurement and personnel actions willbe accomplished with investigative agencies as required by those agencies.
^. Training which relates tofraud and corruption in the procurement process is a significant element of this program.
8-3. Duties and Procedures
^. TJAG has overall responsibility for the coordination of remedies in procurement fraud and cormption within the Army. This
responsibility has been delegated to PFD. Functions of PFD will
include the following:
(1) Serving as the single centralized organization in the Army to
monitor the status of, and ensure the coordination of, criminaLciviL
contractuaL and administrative remedies for each significant case of
fraud or corruption.
(2) Receiving reports of procurement fraud and cormptionfrom
any source including, but not limited to the following:DOD criminal investigativeorganizations;audit agencies; contractingofficers;
inspectors general ofthe executive branch; conespondence from the
public;and,commanders.Thisprovisiondoesnotrepealany other
reporting requirement, but establishes PFD as a recipient of PFI
information at the earliest possible time.
(3) Establishingamonitoring system within OTJAGfor all cases
of fraud and corruption that relate to Arm^ procurement
(4) Discussing regularly with theU.S. Army Criminal Investiga
tion Command(USACIDC) ortheassignedDODcriminal inves
tigative organization the current status of significant fraud or
cormption cases and their coordination with prosecutive authorities.
(5) Ensuring that allcriminaLcivlLcontractuaLand administrative remedies are considered in each significant fraud or cormption
case and that timely and applicable remedies are undertaken by
commanders, contracting officers, and suspension and debarment
authorities. For example,considerationofsuspensionor debarment

22

ofacontractor or individual normally should be initiated within 30
days of indictment or conviction.
(6) Coordinating, as appropriate, with other DOD components
affectedby asignificant fraudor cormptioncasebeingmonitored
by the Army.
(7) Developing,with the responsible DOD investigative organization. Procurement FraudCoordinators and Advisers, andother involved agencies, a specificcomprehensive remediesplan foreach
significant fraud or cormption case.
(8) In the case of ongoing criminal investigations, coordinate
remedies through, or with the prior knowledge of, the DOD criminal
investigative organization responsible for the case.
(9) In significant fraud or corruption cases, identifying and
documenting any known adverse impact on a DOD mission, and
including the information in any remedies plan.
(10) Providing the appropriate DOD criminal investigative organization with information concerning final remedies asaresult of an
investigation by that organization.
(11) Receiving notificationsfiomcriminalinvestigative agencies
conceming substituted, defective, and counterfeit hardware in which
aserioushazardto health, safety oroperationalreadiness is indi
cated; ensuring that appropriate safety, procurement andprogram
officials are informed per enclosure 3 of DOD Directive 7050.5.
PFD will specifically ensure that contract reviews (DD Form 350
(Individual Contracting Action Report) and adverse impact statements (see para 8-8^(2)) are prepared, and that such information is
used to determine if further inquiry is wananted to prevent reoccurrence and to detect other possible fraud.lmpact statements will not
bereleasedtoprosecutiveagenciesuntilreviewedby PFD. When
appropriate, PFD will coordinate with other DOD agencies to establish a lead agency for victim impact statements in multi-DOD
agency cases.
^. The Commanding GeneraLUSACIDC,wi1l take the following
actions:
(1) Notify PFDof any investigationsinvolvingfi^audor cormption related to procurement activities.
(2) Notify other DOD component criminal investigative organizations when investigations involving fraudorcorniption affect that
component This includes evidenceof fraudby acontractor, subcontractor, or employee of either,on cunent or past contracts with,
or affecting, that component
(3) Notify the Defense Investigative Service of any investigations
that develop evidencetbat affectsDODclearedindustrialfacilities
or personnel.
(4) Determine the effect on anyongoing investigations or prosecutionsofanycriminaLciviLcontractuaLor administrative actions
being considered by a centralized organization and advise of any
adverse impact
(5) Promptly provide commanders,contracting officers, Procurement Fraud Advisers, and suspension and debarment authorities,
when needed to allow consideration of applicable remedies, any
courtrecords,documents,orotherevidenceof fraudorcormption
fromongoingorcompletedcriminal investigations. Incases of indictment orconviction ofacontractor or individuaL the information
willbe provided intimefor initiation,if appropriate,of suspension
or debarment action within 30 days of the indictment or conviction.
(6) Provideprosecutiveauthoritiesandcentralizedorganizations
with timely information on the adverse impact onaDOD mission of
fraud or corruption that relates toDOD procurement activities.This
information will beobtained from individuals suchastheheadof
the contracting agency, appropriate commanders, and staff agencies.
Some examples of adverse impact onaDOD mission are endangerment of personnel orproperty, monetary loss, compromise ofthe
procurement process, or reduction or loss of mission readiness.
(7) Discuss regularly with Procurement Fraud Advisers the status
of significant investigations of fraudor cormption and their coordination with prosecutive authorities and provide documents and
reports resulting from the investigations.
^. Commanders of service schools conducting procurement or
procurement-related training (such asThe Judge Advocate General's

AR 27-40 • 19 September 1994

33717

SchooL the U.S. Military Police SchooL and the U.S. Army Logistics Management Center) will ensure that—
(1) Allprocurement andprocurement-related training includesa
period of instmction on fraud and cormption in theprocurement
process.Thelengthof the period of instmctionwillbe appropriate
to the duration and nature ofthe training.
(2) Training materials are developed to support that training.
(3) Training materials developed will be sentto MACOM PFI
Coordinators.
^. MACOM commanders and heads of contracting activities will
ensure that—
(1) Substantial indications of fraud or cormption relating to
Army contracts or Army administered contracts are reported
promptly to the supporting USACIDC element and the Procurement
Fraud Division.
(2) Information provided includes reports by contracting officers
under DFARS 9.406^3
8-4. Procurement fraud and irregularities programs at
I^ACOI^s
^. Command counsel and SJAs at MACOMs will developaprogram and appoint an attomey as PFI Coordinator for their command. Chief counsel and SJAs at commands with procurement
advisory responsibility will appoint an attomey as a Procurement
Fraud Adviser (PFA) to manage thePFIprogramat their installations as well
^. Provision may be made for activities not having sufficient
attomey assets to obtain assistance from nearby installations that
have a PFA.
^. Reports and recommendations will be transmitted through
command channels to the PFI coordinator for the affected MACOM.
^. CommandcounseLchiefcounseLandSJAs willexercise supervisory authority to ensureeffective operation ofthefraudprogram and coordination of remedies within their organizations.
^. The MACOM PFI Coordinator will have overall responsibility
for the design andimplementation ofthe MACOM's procurement
fraudprogram.
7^ PFAs and PFICoordinatorswillcoordinate withthe appropriate local CID or Defense Criminal Investigative Service (DCIS)
activity to assure the prompt notification and coordination of all
Procurement Fraud cases.
8-2. Reporting requirements
^. Typical fraud indicators during the procurement cycle arelistcd in figure 8-1. The mere presence of one or more of these
indicatorsdoes not, by itself, require reportingunder paragraphs
below.Reports should be submittedif thereisareasonable suspicionof procurement fraudor inegularity orthe procuringagency
refers the matter for investigation.
^. ^^Procurement Flash Reports" will be transmitted by FAX
directly to PFD wheneveraPFI Coordinator or PFAreceives notice
of aPFI involving the Army.To facilitate filing, aseparatesheet
should be used for each case reported.These reports will providea
succinct summary ofthe following available information:
(1) Name and address of contractor.
(2) Known subsidiaries of parent firms.
(3) Contracts involved in potential fraud.
(4) Nature of potential fraud.
(5) Summary of pertinent facts.
(6) Possible damages.
(7) Investigative agencies involved.
(8) Local PFAs (name andphone numbers). Anyofthe above
categories that cannot be completed will be annotated as ^^unknown
at present."
^. Whenareport is required by DFARS, or is requested by PFD,
theprovisionsofDFARS 9.406-3 will be followed DFARS
9.406-3 provides the basic content and format for PFI reports.
^. Allpersonnelwillcooperate to ensure that investigations and
prosecutions of procurement fraudare completed in a timely and
thorough manner. Requests for assistance from Federal prosecutors

should be processed through the local PFAwhenever possible. RequestsforFederalinvestigators willbe processed throughthe supporting USACIDC and the PFA will be notified.When the conduct
ofcriminal investigationsandprosecutionsconflictwiththeprog
ressofprocurements, reasonable deference will be given to criminal
investigatorsandprosecutors whenever possible. Any seriousconfiict that cannot be resolved atalocal level will be reported immediately to the PFI Coordinator or PFD for action.
2. PFICoordinators and PFAs may request access to information
obtained during criminal investigations that is not protected by Fed.
R.Crim. P. 6(e) andusethisinformationto assist themintaking
appropriate administrative, contractuaL and civil remedies. Requests
for this infonnation should be made directly to the appropriate
Federal investigative agency. The investigative organization may
withhold requested information if release would compromise an
investigation. Difficulties in obtaining information that cannot be
resolved locally will be refened to PFD for appropriate action.
7^ USACIDC will notify, in writing, local PFAs as well as PFD
within 30 days, of initiation ofasignificant investigation of fraud or
cormption related toArmy procurement activities. Such notification
will include the following:
(1) Case title.
(2) USACIDCReport of Investigationnumber.
(3) Responsible investigative agency or agencies.
(4) Office of primary responsibility.
(5) Date opened.
(6) Summary of facts.
(7) Suspected offense.
^. The transmission ofthe information inT^above may be delayed
ifthe Commanding GeneraL USACIDC, or the head of another
DOD criminal investigation organization determines the transmission would compromisethesuccessofanycase or itsprosecution.
The prosecutive authorities dealing with the case will be consulted,
when appropriate, in making such determinations.
^. USACIDC will obtain the following information at the earliest
possible point in an investigation of fraud or comiptionthat relates
toDOD procurement activities, whenever possible without reliance
on grandjury subpoenas:
(1) The individuals suspected to be responsible.
(2) The suspected firm's organizational stmcture.
(3) The firm's financial and contract history.
(4) The firm's organizational documents and records.
(5) Statements of witnesses.
(6) Monetary loss to the Government
(7) Other relevant information.This information will be provided
to PFD or other cognizant DOD centralizedorganization.
PFD will provide written notification to the Defense Investigative Service of all suspension ordebarment actions taken bythe
Army.
8-8.PFDandHO, USACIDC coordination
PFD and HQ,USACIDC will coordinate as follows:
^. Discuss the status of significant procurement fraud or cormption investigations being conducted by USACIDC and possible remedies. These discussions should take place on a regular basis.
^. Discuss the coordinationof possible criminaLciviLcontractuaL or administrative remedies with prosecutive authorities.
^. PFD will maintain liaison with other DOD centralized organizations and willcoordinateremedieswiththosecentralizedorganizations affected byasignificant investigation offi^audor cormption
that relates to DOD procurement activities.
^. Ascertain the effect on any ongoing investigation of the initiation of civiL contractuaL oradministrative remedies as follows:
(1) PFD will maintain liaison withUSACIDC and other DOD
criminalinvestigative organizations in order to determine the advisabilityof initiating anyciviLcontractuaLor administrative actions.
(2) USACIDC will advise PFD of any adverse effect on an investigation or prosecution by the initiation of civiL contractuaL or
administrative actions.

AR 27-40 • 19 September 1994

23

33718

8-7. Coordination with DOJ
^. PFD will establish and maintain liaison with DOJ and the
Defense Procurement Fraud Unit on significant fraud and cormption
cases to accomplish the following;
(1) Monitor criminal prosecutions.
(2) Initiate litigation for civil recovery.
(3) Coordinate administrative or contractualactions while criminal or civil proceedings are pending.
(4) Coordinate settlement agreements or proposed settlements of
criminaL civiL and administrative actions.
(5) Respond to DOJ requests for information and assistance.
^. In cases where there is an ongoing criminal investigation,
coordinationwithDOJby any memberofthe Army normally will
beaccomplishedby orthroughUSACIDCorthecognizantDOD
criminal investigative organization, or with the investigative organization's advance knowledge. This does not apply to the routine
exchange of information between Government attomeys in the
course of civillitigationor the routine refenalofcasestoDOJfor
civil recovery.
^. Initialcontact by any attorney associatedwiththeU.S. Army
withaU.S.Attomey'sOffice or DOJ,whether initiated by the Army
attomey ornot, willbereportedtoPFD. Activity afier theinitial
contact will be reported to PFD only when the Army attorney feels
there has beenasignificant event in the case.If the Army attomey
is notaPFICoordinatororaPFA, the matter should be refened to
one of these two attomeys as soon as possible.Routine exchanges
between Army attomeys and U.S. Attorney's offices or DOJ do not
need to be broughtto the attention of PFD.

8-8. Comprehensive remedies plan
^. Aspecific, comprehensive remedies planwillbe developed in
each significant investigationinvolving fraudor comiptionthat relates to Army procurement activities. When possible, theseplans
should beforwardedwiththeDFARS 9.406-3 reports.In nocase,
however, should the report be delayed an appreciable time pending
completion of the plan.Theformatforaremediesplanis at figure
8-2.
^. The plan will be developed initially by the PFA with the
participation ofthe appropriate criminal investigators and other relevant personnel such asthe contractingofficer. Insignificantcases
thePFAshould also coordinate aremediesplan early with PFD.
Defective product^product substitution remediesplans must comply
with the requirements of appendix D ofthis regulation.
^. Acomprehensive remedies plan will include ataminimum the
following information and considerations:
(1) Summary of allegations and investigative results.
(2) Statementofany adverse impact onaDODmission. DOD
investigative organizations, commanders, or procurement officials
willalsoprovidethisinformationtoprosecutiveauthoritiestoenhanceprosecutionofoffensesortoprepareavictimimpact statement pursuant toFed.R.Crim.P. 32(c)(2).
(3) The impact upon combat readiness and safety.
(4) Consideration of each criminaL civiL contractuaL and administrative remedy available, and documentation of those remedies,
either planned, in progress, or completed.
(5) Restrictions on the pursuit of any remedies such as grand jury
information orpossible compromise ofthe investigation.
^. When PFD receives remedies plans, PFD will coordinate them
with the headquarters ofthe appropriate DOD criminal investigative
organization involved.
^. Testing necessary to support the investigation and remedies
plan should comply with figure 8-3.

8-9. Litigation reports Incivil recovery cases
^. PFAs will evaluate all substantiated PFI cases to determine
whether it isappropriateto recommendcivil recovery proceedings.
^. Recovery should be considered under both statutory and common law theories, includingbut not limited to the following:
(1) False Claims Act, 31 USC 3729
(2) AntiKickbackAct,4IUSC5I.

24

(3) Sherman A c t , l 5 U S C 1 7 .
(4) Racketeer Influenced and Cormpt Organizations Act I8USC
1961 1968.
(5) Common law fraud.
(6) Unjust enrichment
(7) Constmctive tmst
(8) Cases where contracts have been procured inviolation of the
conflict of interest statute, 18 USC 218. (See ^^^^^^^T^^^^^T^^C^.
v^^^7^^.^^^^^.^,616F.2d 469 (CtCL 1980))
^. When civil recovery appears possible, PFD should be consulted to determine ifalitigation report is necessary.If requested by
PFD,the report should summarize the available evidence and applicable theories of recovery and be preparedunder paragraph 3-9of
this regulation.Toavoid unnecessary duplication of effort, recovery
reports may include and make liberal references to other reports
previously preparedona givencase such as the DFARS 9.406-3
report.
^. TheMACOMPFIcoordinator and PFAwill monitor allcivil
fraud recovery efforts throughout the command and will provide
training and technical assistance as required. Status reports of all
civil fraud recovery efforts will be provided through channels as
required by PFD.

8-10. Administratlveandcontractual actions
^. The following remedial options should be considered in response to confirmed fraudulent activity:
(1) ContractuaL
(^7 Termination of contract for default
(^7 Nonaward of contract based upon a finding of contractor
nonresponsibility. (Ifthis appears to be a valid option, a DFARS
9.406-3 report must be prepared where contractor nonresponsibility
is based on lack of integrity).
(^7 Rescission of contract
(^ Revocation of acceptance.
Use of contract warranties.
^ Withholdingofpayments tocontractor. In thecase of withholding pursuant to DFARS 32.173, the Chief, PFD, is the Arniy
Remedy Coordinating OfficiaL
^ Offset of payments due to contractor from other contracts.
(7^7 Revocation of facility security clearances.
(7^ Increased level of quality assurance.
07 Refusal to accept nonconforming goods.
(^ Denial of claims submitted by contractors.
Removal ofcontract from automatedsolicitation or payment
system.
(2) Administrative.
Change in contracting forms andprocedures.
(7^7 Removal or reassignment of Govemment personneL
Review of contract administration and payment controls.
(^ Revocation of warrant of contracting officer.
Suspension of contractor.
(^ Debarment of contractor.
^. In cases which are pending reviewor actionby DOJ, PFAs
shouldcoordinate with theDOJattomey handling the caseprior to
initiatingany contractual oradministrative remedy. In the case of
ongoing criminal investigations, this coordination will be accomplished through the appropriate DOD criminal investigation
organization.

8-11. Overseascases of fraudorcorruption
^. Commanders ofoverseasmajor commands willestablishprocedures, similar tothis regulation and consistent withtheDFARS,
and regulations and directives oftheir respective unified commands,
for reporting and coordination of available remedies in overseas
procurement fraud and corruption cases involving foreign firms and
individuals. Overseas major commands will also maintain liaison
with PFD and provide periodic reports of remedies coordination
results.
^. Overseas suspension and debarment actions are governed by
DFARS 9.403.The names ofall firms and individuals suspended or
debaned willbe forwardedexpeditiously toPFD for inclusion ou

AR 27-40 ^19 September 1994

33719

the List of Parties Excluded From Federal Procurement or Nonprocurement Programs.
^. Overseascasesoffraudorcormptionrelated tothe procurement process that involveU.S. firmsorU.S. citizens may berefened to PFD for coordination of remedies underthis regulation.
8-12. Program Fraud CivilRemedies Act (PFCRA)
^.PFCRA was enacted on21 October 1986 (Public Law 99 509)
andimplementedbyDODon 30 August 1988 (DODDirective
5505.5). (See appendix E.)
^. PFCRA expands the capability of the Govemment to deter and
recover losses from false,fictitious,orfiaudulentclaims and statements. It is also applicable to program fiaud and provides an administrative remedy in addition to those otherwise available to the Army
in procurement fraud or pay and entitlements fraud cases.
^. As part of the Army implementation, the Secretary of the
Army's duties and responsibilities under PFCRA as Authority Head
are delegated to the Army GeneralCounseLTheChieflntellech^al
Property Law Division, is the Army'sReviewing Official within the
meaning of PFCRA. Army implementation also requires DA to
follow the policies and procedures prescribed in enclosure 2 of
DOD Directive 5505.5. (See appendix E.)
^. The DODInspector General (IG) is the Investigating Official
withinDOD.Thedutiesofthisposition willbe performedby the
Assistant IGForlnvestigations. This individual is vestedwiththe
authority to investigate all allegations of liability under PFCRA.
That authority includesthepowertotasksubordinateinvcstigative
agencies to review and report on allegations that are subject to
PFCRA. If the Investigative Official concludes that an action under
PFCRA is wanantedinan Army case,theofficia1 willsubmit a
report containing thefindingsand conclusions of such investigation
throughPFD to the Army ReviewingOfficiaL
^. Pursuant to DODIG guidance,USACIDC will forward appropriate cases that appear to qualify for resolutionunderPFCRAto

the Investigating Official in a timely manner. Additionally,
USACIDC willforward cunent information regarding the status of
remedies pending or concluded. USACIDC may obtain remedies
information by coordinating with PFD and the cognizant command.
^ In pay and entitlement or transportation operation fraud cases,
USACIDCwillcoordinate with the Officeof theSecretary ofthe
Army, Financial Management, Review and Oversight Directorate
(SAFM-RO),todeterminethestatusofanypendingor proposed
actionundertheDebt Collection ActThisinformation,in addition
toinformationobtainedunderparagraph8 12^ above, willbeforwarded with appropriate cases to the Investigating Official.
^. In those cases where the Investigating Official has submitteda
report to the Army Reviewing Official for action under PFCRA,
PFD wifl, at the direction of the Reviewing OfficiaL prepare all
legalmemoranda as necessary lotransmittheReviewing Official's
intentionto issueacomplaint Aspartofthisresponsibility, PFD
will do the following: coordinate with the affected command or
agency to ensure that all appropriate remedies have been considered;
evaluate the overafl potential benefits to the Army; and ensure that
action under PFCRA is not duplicative of other remedies already
taken. In orderto fully supplement the Reviewing Official's file,
PFD may request a litigation report.
^. PFD wifl coordinateafl cases involvingtransportation operations emanating from Mflitary Traffic Management Command
(MTMC)activity,under the military transportation exceptionto the
FAR, and afl cases involving pay and entitlements fraud with
SAFM-RO, for comments and recommendations. These matters wifl
be forwarded with the case file to the Reviewing OfficiaL
Ifthe Attomey Generalapprovestheissuanceofacomplaint,
PFD, at the direction of the Army Reviewing OfficiaL shafl prepare
the complaint and aflnecessary memoranda asrequired. PFD shafl
also designate attomeys to represent the Authority in hearings under
PFCRA.

1.

Durin^fbe identifloationofthe Government'sneedfor^oo^sor^ervlce^.
a.
I^eetl determinations for item5 currently 5cfiei1uled for i1i5po5al or reproouremenL or wbicb have predefermined reorder levels.
^
^xce5sivepuroba5eof^'expendable5^'5uchasdru^5orautoparls
0.
Inadequateorva^ue need a^se^^ment
0^.
Fre^uentchan^es in tbe need assessmentordetermination.
e.
Mandatory slock levels ^nd Inventory requirements appearexcessive.
^.
Items appearto be declared excess unnecessarily or 5old as surpltis, while same items are being
reprocured.
^.
It appears thai an item or service is being purchased more asaresult of a^^re^sive marketing efforts
ratberttian in responsetoa valid requiremenL
^.
l^eed ilelermination appears to be tailored unnecessarily in ways that can only be met by certain
contractors.
Items and services are continually obtained from tbe same source due to an unwarranted lack of effort to
develop second sources.
2.

Ouring tbe ilevelopmentoftbeslatements of work andspecific^tions.
a.
Statements of work and specifications appear to be written intentionally to fit the products or capabilities
of asin^lecontractor.
1^.
Statements of work,specifications,or sole source justifications developedby or in consultation witha
preferred contractor.
c.
Information concerning rei^uiremenlsand pending contracts is released onlyto preferred conlraclors.

Flgure^-^. Frocurement Fraud Indicators

AR 27-40 ^19 September 1994

22

33720

d.
Allowing companies and industry personnel wtio participated in tbe preparation of bid packages to
performon subsequentcontracts ineithera prime or stibcontraclor capacity.
e.
Release of information by firms or personnel participating in design or engineering to companies competingforprimeconfracL
^.
l^re^ualification standards or specifications appear designed to exclude olberwisei^ualified conlraclors or
tbeir products.
^.
Requirements appear split up to allow for rotatingbids,giving eacb contractor his or ber ^^fairsbare."
h.
Requirements appear split up to meet small purchase requirements (tbat is, ^25,000) or to avoid bigber
levelsof approval tfiat wotild beolben^ise required.
^id specifications or statement of workappear inconsistent witb the items described in tbe general
requirements.
Specificationsappearsovaguetbat reasonable comparisons of estimate would bedifficulL
^.
Specificalionsappear inconsistent witb previousprocurementsof similar ilemsof services.
3.

During tbe presolicitation pbase.
a.
Sole sourcejustifications appear unnecessary or poorly supported.
^.
Statementsjustifying solesource or negotiated procurements appearinadequate or incredible,
Solicitation documents appear to containunnecessary requirements whicbtend to restrict competition,
c.
c^.
Contractors or tbeir representatives appear to bave received advance information related to tbe proposed
procurementon a preferential basis

4.

During tbe solicitation pbase.
a.
Rrocurement^ppearsto be processed soastoexcludeorimpedecertain contractors.
^.
Tbe timefor submission of bids appears lo be limitedunnecessarily so fbat only tbose with advance
information bave adequate time to prepare bidsor proposals.
c.
It appears that information concerning tbe procurement bas been revealed only lo certain contractors,
without beingrevealedtoall prospective competitors.
d.
bidders conferences are condticled inaway tbat apparently invitesbidrigging, price fixing, orotber
impropercollusion betweencontractors.
e.
Tbereisan apparent intentionalfailuretopublisb notice of tbesolicitationfairly.
^.
Solicitationappears vague as tolhe details sucbastime,place,andmanner of submittingacceptable
bids.
^.
Tbere is evidence of improper communications or social contact between contractors and Government
personneL
^.
Controls over tbe number and destination of bid packages sent to interested bidders appear inadequate.
Indications tbat Government personnel or their families may own stock orhave some other financial
interest in eitberacontractor or subcontractor.
Indications that Government personnel are discussing possible employment for themselves orafamily
member witbacontractor or subcontractor or indications tbatapropos^l for future employment fromacontraclor
or subcontractor toa Governmentemployeeor bis orher family members bas not been rejectedfirmly.
^.
Indications tbat any contractor bas received special, assistance in preparation of bis or ber bid or
proposaL
^.
Itappearslbata contractor is givenan expressed or implied referencetoa specific subcontractor,
m
Failure to amend solicil^lionlo reflect necessary ctianges or modifications
5.

During tbesubmission of bids and proposals,
a.
Improper acceptanceof a late bid.
1^.
Documents, sucb as receipts, appearfalsified toobtainacceptanceof a late bid.
c.
Improperly attempting to cbange a bid afterolber bidders pricesare known.
d.
Indications thai mistakes have been planted deliberately inabid to support correction after bid opening.
e.
Witbdrawal bya low bidder who may laterbecomea subcontractor to a bigher bidder wtiogelsltie
contract
^.
Apparent collusion or bid rigging among tbe bidders.
^.
8iddersapparently revealing Ibeir prices to eachotber.
^.
Required contractorcertificalions appearfalsified.
Information concerningcontractor's qualifications, finances, and capabilitiesappearsfalsified.
^.
a.
1^.
c.

Dtiring tbe evaluationof bids and propoosals.
Deliberately losing ordiscarding bidsof certain contractors.
Improperly disqualifying tbe bidsor propos^lsofcertaincontraclors.
Accepting apparently nonresponsivebidsfrom preferred contractors.
Figure ^-t. Procurement Fraud Indicators—Continued

26

AR 27-40 • 19 September 1994

33721

d.
Unusualorunnecessai^contaclsbetweengovernment personneland contractors during solicitation,
evaluation, and negotiation.
Any apparently unautbori^ed release of procurement information toacontractor or to non-government
e.
personneL
f.
Any apparent favoritism inlbeevaluationoftbe bid or proposal ofa particularcontractor.
^
Apparent bias in the evaluation criteria or in the attitude or actions of tbe members of tbe evaluation
paneL
7.
During contract formation and administration. (For more details on tbese subjects see DA Ram 27-153,
para 23-5.)
a.
Defective pricing by tbe contractor usually associated witb submitting false cost and pricing data under
theTrulb in Negotiation Act
^. Cost^Labormischarging.
c. Rroductsubstitution.
d.
progress payment fraud.
Flgure^-t. Frocurement Fraud Indicators-Continued

AR 27-40 ^19 September 1994

27

33722

(Dafeo^^^a^)

Section 1

(Administrative Data);

A.
Subjectof allegation.
8.
Rrincipal investigative agency.
C.
Investigativeagencyfile number.
D.
Subject's location.
^.
Location whereoffensetookplace.
F.
Responsibleaction commander.
G.
Responsible INACOM.
H.
Contract administrativedata (if applicable); .
1. Contract number.
2. Typeof contract
3. Oollaramountof contract
4. Reriod ofcontract
L
Rrincipal case agent (name and telephone number).
J.
Civilian prosecutor (if applicable) (name, address, and telepbone number).
1^.
IsGranddury investigaling tbis matters Ifso, where isGrand .lury located^
L.
Audit agency involved (if applicable).
(I^ame and telephone numberof principal auditor.)
1^.
Suspense datefor updateof tbis plan.
Section 11

(Summary of Allegationsand InvestigaliveResultstoDate);

(Provide sufficient detail for reviewers of the plan to evaluate the appropriateness of the plannedremedies. If
Information is^'close-bold'orif grandjury secrecy applies, sostate.)
Section 111

(Adverse Impactstatement);

(Describe any adverse impact on tbeDA^DODmission.Adverseimpact is describedinDDDDirective 7050.5,
paragraph ^.1.g. Identify impact as actual or potentiaL Describe tbe impact in terms of monetary loss, endangerment to personnel or property, mission readiness,etc.This information sbould be considered in formulating your
remedies asdescribed belowand provided to prosecutorsfor tbeir use in prosecution oftbe offenses.)
Section IV

(RemediesTaken and^or Being Pursued);

A.
Criminal Sanctions.
(Asaminimum,address fbe following: Are criminal sanctions appropriale7lf so,
wbicb ones7 If noLwhynot7 1^as tbe local U.S.Attorney orotber civilian prosecutor been notified and briefed7
^bat actions bave been taken or are intendeds If and wben action is complete, describe action and final results
of Itieaction. Other pertinentcommentssbould be included.)
B.
CivilRemedies.
(Asaminimum address the following; Which civil remedies are appropriated l^as tbe
local U.S.Attorney orotber civilian prosecutor been notified and briefed7How,when,wbere,and by wbom are
tbe appropriate civil remedies implemented^ If and when action is completed, describe action and final results.
Otberpertinentcommentsshould be included.)
C.
Contractual^Administralive Remedies.
(Asaminimum,address tbe following; Are contractual and administrative remedies appropriated If so,wbicb ones7 If noLWhy7 If contractual or administrative remedies are
considered appropriate,describe how,when,and by whom the remedies are implemented.If and wben action is
completed, describeactionand resultsof tbeaction. Otber pertinentcomments should be included.)
D.
Restrictions onRemedies Action.
(Comment as to why obvious remedies are not beingpurstied.For
example,tbeU.S.Attorney requests tbat lite suspension aclionbe held inabeyancepending criminal action.)
Sectiony

(Miscellaneous Commenls^lnformation);

Section VI

(Remedies Plan Participants);
Figure 2-^. Ouldefor Freparing Remedies Flan

28

AR 27-40^19 September 1994

33723

(Record the name, grade, organisation, and telephonenumberof all Remedies Plan participants.)
SeclionVll

(IVIACOM Coordination Comments);

(Record the name,grade,office symbol,and telepfione number of all INACOM officialsproviding coordination
comments; record the date when comments are stibmilted and append to Ibe Remedies Plan the signed
comments provided.)
IVIACOl^ Focal PoinL
(Record the name, grade, office symboL andtelepbonenumberoftbeMACOIVlfocal point.)
SectionVIII

(Coordination^Comments);

(Record tbe name, grade, organisation, office symbol, and telepbone number of all officials with whom you have
coordinated the Remedies Plan or wbo have provided comments on yotir plan; append any comments provided
lolbe Remedies Plan.)
Figure

Ouldefor Preparing l^emedies Flan -Continued

1.
Under no circumstances is testing to proceed unless tbe command bas committed sufficient funding to
cover the entirecostof tbe projected testing.
2.
1^0 testing will be initiated unless there has been awritten requestfor thetesting to tbe appropriate
ProcurementFraud Advisor fromacriminalinvestigatororAssistanf United States Attorney or Department of
dustice Attorney (AUSA is used in these procedures lo indicate eiltier an AUSA or Oepartment ofjustice
attorney).If tbey have not already done so,criminal investigators should be requested tocoordinate tbeir testing
requests with the AUSAoverseeing the investigation.
3.
barring extraordinary circumstances, only one test will be conducted to support tbe criminal and civil
recovery efforts of a procurement fraud^irregularify matter, ^arly coordination with the Civil Division offhe
Department of Justice or the local United States Attorney's Office is necessary to ensure that testing funds are
not wasted.
4.
Ttie request for testing should includeaclear, concise statement of tbe purpose of the testing to includea
statement of the allegations made and the contact number(s) involved. B^ny^est^^an^h^chre^t^^resdes^rt^c^^^^^
fest^^^^mt^s^^eap^ro^ed^y t^eBlt7^B^.
5.
a.
h.
0.
d.
e.
^
^.
h.
^.
^.
m.
r^.
o.

I^otesting will be initialed unlessatest plan basbeendeveloped wbicb states tbefollowing;
Ttieconlract number(s) involved.
The Izational Stockl^umber(I^Sl^)of theitemtobelested.
Ttiepurposeofthetesling.
Tbe alleged defect or the contractual requirement violated.
TtieClD reportof investigation (RDI) numberorlbeOCIScase number.
Costof the test (a cost proposal sbould bean attactiment tothe test plan).
Wherethe test will beconducted.
How Ihelest will beconducted.
The name and telephonenumberof tbetest team leader.
Ttie names ofall test team members.
The approximate datesof Ihetesting.
Tbedatethatcompletionof thefest isrequired.
Aclear statement of the desired product (that is,test report, raw data,analysis of results, and evaluation
of test results),
Tbe PRDI^ to fund tbe testing,
Aretention plan.

6.
Ttie test plan shall be coordinated with the concurrence received in advance from the appropriate personnel in tbe Procurement Directorate, Product Assurance andTest Directorate,the Procurement Fraud Advisor,and
Figure 2-3. OuideforTesting Defective Items Under Criminal or Civil Investigation

AR 27-40 • 19 September 1994

29

33724

the Investigator^AUSA requesting the test l^o testing will be initiateduntil tbe criminalinvestigator^AUSAwho
requestedthefesling hasapproved thetestplan.
7.
If the items tested are to be retained as evidence, the criminal investigator should arrange for retention of
the evidence. Wbile the Command will support evidence retention, this is primarily tbe responsibility of Ibe
criminal investigators Agents sbould be advised tbat putting items in CodeLor similar nonuse status is
insufficient toprotect it from being released to tbe field.Adec^s^on not to retain the testedsterns as eiB^^d^^
ha^e ^heappro^a^o^t^eB^t7,SA.
8.
All items to be tested should be fromastatistically valid random sample.Tbe sample should conform with
tbe inspection requirements of tbe contract or be in conformance wifbarandom sample specifically developed for
the instant test plan.It is recommended tbataslatistician be consulted to determine tbe feasibility ofarandom
samplespecificallycreated tosupport thetestplan.
9.
Resultsof testing should be availableto Command and DA personnel for appropriate contractual and
administrative remediesAny request forteslingresullsltiat indicates tbat dissemination ofthe testing results will
be limited by Rule 6(e) of ibe Federal Rules of Criminal Procedure is to be forwarded througb the INACOM or
AMC ProcurementFraud Coordinator loPFDpriortotbe initialionof any lesling.
10.
Resolution of problems associated witb testing requests sbotild be conducted at tbe local leveL In AI^C,
tbe authority to refuseatesting request resides with tbe Office of Command CounselAny disputes ttiaf cannot
be resolved atthe local level will befon^arded tothe AI^CorMACOM Procurement Fraud Coordinator for
resolution. Tbis includes disputes regarding funding or, atany lime, sensitive issues.
11.
Second requests for testing of the same item due loacbange in the investigative plan require coordination by the PFA with the investigator and AUSA overseeing the invesligalion todetermine tbe deficiencies in fbe
earlier test Disputes tbat cannot be resolved between itie AUSA, PFA, and the invesfigafor regarding testing will
be forwarded simultaneously to the I^ACDI^ Procurement Fraud Coordinator and PFD for resolution. Ttie
procedures established in paragraphs5and6apply for second requests for testing witb tbe additional requirement tbat the Assistant United States Attorney must be requested to approve thetestplan.
Flgure2-3. OuldeforTestlngDefective Items Under Criminal or Civil Investigation -Continued

Chapters
Cooperation with ttioDftioe of special Counsel
9-1. Introduction
This chapter prescribesprocedures forcooperation with theOffice
of SpecialCounsel (OSC)ofthe Merit SystemsProtection Board
(MSPB), when OSC is investigating alleged prohibited personnel
practices or other allegations of improper or illegalconduct within
DAactivities.
9-2. Policy
^. DA policy follows:
(1) Civilian personnel actions taken by management officials,
civilian and military, wifl conform to laws and regulations implementingestablished merit systemprinciplesandwiflbefree of
any prohibited personnel practices.
(2) Management offlcials wifl take vigorous conective action
when prohibited personnel practices occur. Disciplinary measures
under AR 690-700, chapter751,may be initiated after consultation
and coordination with appropriate civilian personnel office and labor
counselor.
^. DA activities wifl cooperate with OSC by—
(1) Promoting merit system principles in civilian employment
programs within DA.
(2) Investigating and reporting allegations of improper or illegal
conduct forwarded to the activity by HQDA.
(3) Facilitating orderly investigations by the OSC of alleged prohibited personnel practices and other matters assigned for investigation to the OSC, such as violations of theWhistleblower Protection
Act of 1989, the Freedom ofinformation Act, or the Hatch Act

^0

9-3. Duties
^. T^Bf ^^^^^^^Co^^.:^^7 The DAGeneralCounsel is responsible
forthe following;
(1) Provide overafl guidance on afl issues conceming cooperation
withOSC,including the investigation of alleged prohibitedpersonnel practices and allegations of improper or illegal conduct
(2) Review for adequacy andlegal sufficiency eachOSCreport
of investigationthatmustbereviewedpersonally by theSecretary
of the Army.
(3) Ensure compliance with the Civfl Service Reform Act of
1978 by obtainingasuitable investigation of allegations of improper
or illegal conduct received from OSC. This includes compliance
withtime limits forreportingresultsoftheinvestigationandpersonal review of the report by the Secretary of the Army when
required.
(4) Forwardto the DOD Inspector General (DODIG) copies of
each allegation of improper or illegal conduct referred to DA by
OSC
(5) Delegate toThe Judge Advocate General the authority to act
onbehalfoftheDAGeneralCounselinaflOSCinvestigationsof
prohibited personnel practices.
(6) Act upon requests for counsel from ^^accused"or^^suspected"
employees.
^. C^r^^^^^^^^^^^^^oy^^^^^^^^T^^^. TheChief,Labor
and Employment Law Office, OTJAG (DAJA-LE) is responsible
for—
(1) Act forTJAG as the Senior Management Official in cooperating with OSC. As Senior Management OfficiaL
Chief,
DAJA LE, throughTJAG, wiflberesponsible to the DA General
Counselfor administration of the policies and procedures contained
in this chapter.
(2) Promptly inform the DAGeneralCounsel of any OSCinvestigationandconsultwith theDAGeneral Counselonany legalor
policy issue arising from an OSC investigation.

AR 27-40^19 September 1994

33725

(3) Serve as the HQDA point of contact in providing assistance
to OSC.
(4) ActasDAattomey-of-recordinadministrativematters initiated by OSC before the MSPB which arise from an OSC investigation. As DA attorney-of-record, the Chief, DAJA LE, wifl file
necessary pleadings and make necessary appearances before the
MSPB to represent DA interests.
(5) Monitor ongoing OSC investigations within DA.
(6) Ensure thatappropriate DApersonnel are apprisedfully of
their rights, duties, and the nature and basis for an OSC
investigation.
(7) Review and prepare recommendations to the DA General
Counsel conceming any OSC recommended conective action referred to DA. Such review and recommendations wifl address
whether disciplinary action should be taken against DA civilian
employees or soldiers, and whether the information wanants refenal
toappropriateauthorities forconective andordisciplinary action.
(8) Seek OSC approval of DA proposed disciplinary action
against an employeefor an alleged prohibited personnelpractice or
other misconduct that is the subject of or related to any OSC
investigation.
(9) Review and prepare recommendations for the DA General
Counsel conceming requests for counseL 1^ include identifying
available DA attomeys to act as individual representatives. Upon
approval of theDAGeneral CounseL appoint DA civilian and military attomeys, to include attomeys from the U.S. Army Materiel
Command and the U.S. Army Corps of Engineers, to represent
individual soldiers or employees.
(10) Determine, totheextent practicable, whether aninvestigation is being or has been conductedthat duplicates, in whole or in
part,aproposed or incomplete OSC investigation, and convey that
informationfothe OSC whenever it mightavoid redundant investigative effbrts.
(11) Provideguidance andassistance to activity Labor Counselors in fulfilling their duties as Liaison Officers.
c. ,^c^^^^i7^.^^^^^Co^^.^^^^^.The activity Labor Counselor will—
(1) Act as Liaison Officer for OSCinvestigations arising within
the command, activity.or installation serviced by the Labor Counselor's client Employment Office.
(2) Promptly inform the MACOM labor counselor and the Chief,
DAJA LE, ofany OSC inquiry or investigation.
(3) Actasthe1ega1representativeofthecommand,activity, or
installation.
(4) Assist the OSC investigator with administrative matters related to the investigation, such as requests for witnesses and
documents.
(5) Process afl OSC requests fbr documents.
(6) Make appropriate anangements for OSC requests to interview
civilian employees and soldiers.
(7) Ensure that personnel involved are advised of the nature and
basis for an OSC investigation, the authority of the OSC, and their
rights and duties.
(8) Consult with the Chief, DAJA LE, on policy and legal issues
arisingfrom the OSC investigation.
(9) Keep the Chief DAJALE, informed ofthe status ofthe OSC
investigation.
(10) Act as agency representative before the MSPB in actions
initiatedby employees (individual right of action appeals).
9-4. Procedures
^. 1^^7^^.^.^^.^
^^^^.^^^
^^^.^^^^^^^o^.
(1) DA military and civilian managers, supervisors, and employees who are requested by OSC for an interview wifl be made
availableperanangementstheLabor Counselor wiflestablish. Requests for the testimony of IGs wifl be coordinated with the Inspector General Legal Office, SAIG2^XL
(2) The Labor Counselor wiflensure that witnesses are aware of
their obligation to answer OSC questions, their potential to be considered ^^suspects" in OSC investigations, and their right to the
assistance of counsel during interviews with OSC representatives. If

the requested witnessis not an^^accused"or^^suspected"individua1
and the witness asks for assistance of counseLaDA attomey wifl be
made available for the limited purpose of consultation regarding the
witness'rights and obligations. An attomey-client relationshipwifl
not be established. (See glossary. Counsel fbr Consultation.)
(3) TheLabor Counselor wifl anangeforindividualcounselfor
consultation from local assets. If local assets are not sufficient,
assistancemayberequestedfromotherDODactivitiesin the area
or from DAJA-LE. DA attomeys tasked to consult with one or
more witnesses individually wifl not be tasked to represent the DA
activity concemed.
(4) The Labor Counselor, as the legal representative of the activity,is precluded from assistingor representing individualwitnesses
during OSC interviews.
^.

^^Bl^^^.^^^^'^^

^^.^^^^^^^7^^.
(1) If the OSC identifiesaDAcivilian employee orasoldier as
an^^accused"or^^suspected"individuaLor if thcLabor Counselor
concludes that an individual isa^^suspect,"the Labor Counselor wifl
inform the individuaL The Labor Counselor also wifl advise the
individual of the availability of counsel for representation upon
approval by DA General Counsel. (See glossary. Counsel for
Representation.)
(2) Ifthe^^suspected" individualdesires legalrepresentationby
DA, the individual must request counsel by submitting awritten
request through DAJA-LE to DA General Counse1.(Seefig9-1.)
(3) During the investigation but prior to DA General Counsel
approval of the request for counseL an ^^accused" or ^^suspected"
individual wifl be provided the assistance of counsel for consultation
in the same manner as any other OSC requested witness.^^Accused"
or ^^suspected" individuals who do not request counsel for representation wifl be provided counsel for consultation in the same manner
as any other OSC requested witness.
(4) If theDAGeneralCounsel approves the request for counseL
the Chief, DAJA-LE, wiflappointaDAattomeytorepresent the
individuaLThis appointment may be madetelephonically,but wifl
be confirmed in writing.The Chief, DAJA-LE,wifl make appropriate coordination with MACOM SJAs and command counselto confirm availability of the attomey.
(5) Anattomey appointedby DAmay representacivilianemployee in any proceeding initiated by OSC before the MSPB. However,counselprovidedby DAmay not represent the employeein
any proceeding initiated byDA,in any appeal fromafinal decision
by the MSPB, or in any collateral proceeding before any fomm
other than theMSPB.
(6) OSC may notbringadisciplinaryactionbefore theMSPB
againstasoldier. Accordingly, DAcounsel wifl notberequired to
represent the soldier in any MSPB disciplinary proceeding. However,counsel may represent the soldier during the OSCinvestigation
withthe understanding that the evidence obtained by OSC maybe
refened to the soldier's command for possible disciplinary action
under theUCMJorappropriateregulations. If DA initiatesaction
against the soldier for misconduct disclosed inthe OSCinvestigation, the soldier wifl obtain counsel as provided under the UCMJor
relevant regulations.

^.
(1) OSC requests for records must be in writing. The Labor
Counselor wifl assistOSC representatives in identifying the custodian of specific records sought during the inquiry.
(2) Generally, requested records should be fumished to OSC representativesifsuchrecordswouldbereleasedunderAR 25-55 or
AR 340-21 toother Government agenciesinthenormal courseof
official business. Records constiti.iting attomey work product should
not be released without approval ofthe Chief, DAJA-LE. IG records wifl not be released without the approval of The Inspector
GeneraL (AR 20-1.) The Labor Counselor should seek guidance
from the Chief, DAJA-LE, if there is any doubt conceming the
release ofrecords.
(3) If, after completion of the OSC investigation, the OSC filesa
complaint againstDAoraDAemployee, releaseof records and

AR 2 7 ^ 0 ^ 1 9 September 1994

31

33726

other informationwiflbeaccomplishedpursuanttoMSPBrules of
discovery (5 CFR 1201, subpartB).
^^^^^^T^^ The command, activity, or installation within which
the allegations of misconduct arose wifl providefimdingfor traveL

1.

per diem, and other necessaryexpenses related tothe OSCinvestigation. These expenses may include appropriate fimding for witnesses, counsel fbr consultation, and DA General Counsel approved
counselfor representation.
9-2. Assistancefrom HODA
Labor Counselors may seek guidance on questions arising from
implementation of this chapter by contacting the Chief, DAJA LE.

Overview

a.
DA employees or soldiers asked to provide information (testimonial or documentary) to DSC may obtain
legal advice tbrough the Labor Counselor from DA attorneys concerning their rights and obligations. Tbis includes
assistance at any interviews witb DSC investigators However, an attorney-client relationship will not be established unlessttieemployeeor soldier—
(1)
Is suspecfedor accused by DSCof commilfinga prohibited personnelpractice or other illegal or
improper act
(2)
Has been assigned counsel bythe DAGeneral CounseL
^.
Any soldier or employee wbo reasonably believes tbat be or sbe is suspected or bas been accused by
DSC of commiftingaprohibited personnel practice or ofber illegal or improper act may obtain legal representation
from DA.The counsel assigned will be from anofber DDD component wfieneveraDA attorney is likely to facea
conflict between the attorney's etbical obligation to tbe client and DA, or when tbe suspected or accused
individual has requested representation from anotber DDD component Outside legal counsel may be retained by
DA on bebalf of the soldier or employee under unusual circumstances and only witb tbe personal approval of ftie
DODGeneral CounseL
c.
The DA General Counsel will determine whetberaconflict is likely to occur ifaDA attorney is assigned
to representasoldier or civilian.If tbe DA General Counsel determinesaconflict may occur, or if tbe suspected
or accused employee bas requested representation from anofber DDD componenL the DA General Counsel will
seekfbeassisfanceof anofber General Counsel inobtaining representationoutside DA.
2.

Requestsfor representation

To obtain legal representation, soldiersor civilian employees must—
(1)
Submita written requestfor legal representation tfirougb the Labor and employment Law Office,
Office of The Judge Advocate General, Department of fbe Army, to DA General Counsel, explaining tbe circumstancestbatjustify legal representation. Copiesof all process and pleadings served should accompany tbe
request
(2)
Indicate wbether privatecounsel, at personal expense, hasbeen retained.
(3)
Obtain writtencertificationfrom their supervisor that—
(a)
Tfieywereactingwittiin thescope of officialdufies.
(^)
DA has not initialed any adverse or disciplinary action against fbem for fbe conduct being
invesligafed bythe DSC.
^.
Requestsfor DAIegal representation must beapproved bythe DAGeneral CounseL
c.
Tbe conditions oflegal representation must be explained and accepted in writing by fbe soldier or
employee.
a.

3.

Limitations on representation

a.
DA will not provide legal representation with respect toaDA initiated disciplinary action againstacivilian
employee for committing or partioipafinginaprohibited personnel practice or for engaging in illegal or improper
conduct Tbis prohibition applies regardless of wbetber fbe participation or conduct is also tbe basis for tbe
disciplinary action proposed by tfie DSC.
1^.
Incertain situations, counsel provided by DA may be limifedfo representing fhe individual only with
respect to some of tbe pending matters, if ofber specific matters of concern to DSC or l^SPB do not satisfy floe
requirements contained in fbis regulation.
4.

Attorney-client relationstiip

Flgure^-t. Ouldefor seeking legal advlceand representation beforeOfflceof Special Counsel

32

AR 27-40 ^19 September 1994

33727

a.
An attorney-client relationship will beestablished and continued between fbesuspected oraccused
individual and assigned DAcounseL
^.
In represenfingaDA employee or soldier, tbe DA attorney designated as counsel will act asavigorous
advocate of tbe individual's legal interests before DSC or l^SP^. Tbe attorney's professional responsibility to DA
will be satisfied by fulfilling tbis responsibilityfo fbe employee or soldier. Legal representation may be terminated
only witb fhe approval of ftie DA General Counsel and normally only on tbe basis of information not available at
the time the attorney was assigned
c.
The attorney-client relationship may beterminated if theassigned DA counsel determines, with Ibe
approvalof the DAGeneral Counsel, tbat—
(1)
Tbe soldier orcivilian employee was acting outside tbe scope ofhis or her official duties wben
engaging in tbeconducttbat istbe basisfor theDSC investigationorcbarge.
(2)
Termination is not in violation of tbe rules of professional conduct applicable to tbe assigned counseL
d. Tbe DA attorney designated as counsel may request relief from tbe duties of representation or counseling
without being required to furnishexplanatory informationthat mightcompromiseconfldential communications
belweentheclientand theattorney.
5. Funding
Tbis regulation authorises cognisant DA officials toapprove requests from military members or civilian employees
for traveL perdiem, wifnessappearances, orotherdepartmental support necessaryto ensure effective legal
representation bythe designated counseL
Status
8.
Asoldier's or civilian employee's participation in DSC investigations, l^SPB bearings, and other related proceedings will be considered official departmental business for time and attendance requirements and similar purposes.
7.
Advice to witnesses
Tbe following advice to soldiers and civilian employees questioned during tbe course of an DSC investigafion
may beappropriate in responsefothesefrequent inquiries;
a.
Awitness may decline to providea'yes" or "no" answer in favor ofamore qualified answer wben tbis is
necessaiy toensureaccuracy in responding loanDSC interviewer's question.
lb.
Requestsforclarificationof botb questions and answersare appropriafeto avoid misinterpretation.
c.
Means to ensure verifications of an interview by DSC investigators are appropriate, whetfier or not fbe
soldierorcivilian employee isaccompanied by counseL Tape recorders may only be used for tbis purpose
wben—
(1)
Tbe recorder is used in full view.
(2)
All attendeesare informed.
(3)
TheDSC investigator agreesto record tbe proceeding.
d.
Any errorsfhatappear in awritten summary of an interviewprepared bythe invesfigatorstiould be
corrected before the soldier or employee signs fbe statementTbe soldier or civilian employee is not required to
sign any written summary that is not completely accurate.Asoldier or civilian employee may receiveacopy of
tbe summary asacondition of signing
Figure ^-t. Ouidefor seeking legal advlceand representation before Office of Special Counsel -Continued

Chapter 10
5oldier^ 5unomoned to 5erve on 5tate and Local
Juried
10-1. General
^.Thischapter implements 10USC 982 andDOD Directive
5525.8. It establishes Anny policy conceming soldiers on active
duty who are summoned to serve on State and local juries.
^. This chapter doesnot apply to ArmyNationalGuard soldiers
In an annual training or full-time AGR (Active Guard Reserve)
status under title 32,United States Code.Soldiers inatitle 32 status
must refer to their respective State law for relief from State or local
jury duty.
10 2. Policy
^. Active duty soldiers should fiilfifltheir civic responsibility by
servingon Stateandlocaljuries, so long as it does not interfere
with military duties.
^. The following active duty soldiers are exempt from complying
with summons to serve on State and localjuries:
(1) General officers.

(2) Commanders.
(3) Active duty soldiers stationed outside the United States,
Puerto Rico, Guam, the Northern Mariana Islands, American
Samoa, andthe virgin Islands.
(4) Active duty soldiers in a training status.
(5) Active duty soldiers assigned toforces engaged in operations.
^. Otheractiveduty soldiers may beexemptedfromservingon
localjuries ifcompliance with such summons would have either of
the fbllowing effects:
(1) it would interfere unreasonably withperformance of thesoldier's military duties.
(2) It wouldaffect adversely thereadiness o f a summoned soldier's unit command, or activity.

10-3. E^emptiondetermination authority
^. The commander exercising special court-martial convening authority (SPCMCA) over a unit has the authority to determine
whetherasoldier of that unitwho has been served withasummons,
is exempt from serving onaState or localjury unless that authority
hasbeen limitedorwithheldper subparagraph ^or^below. This

AR 2 7 ^ 0 ^ 1 9 September 1994

33

33728

authority may notbedelegatedto asubordinatecommander who
does not exercise SPCMCA.
^. Acommander superior to the SPCMCA, who alsoexercises
SPCMCA orgeneral court-martial convening authority (GCMCA)
over a unit, may limit or withhold the exemption determination
authority of subordinate commanders.
c. A GCMCA, who orders a unit or soldier assigned to one
command to be attached or detailedto another command for disciplinary purposes (for example,^^foradministration"or^Toradministration of military justice"), may reserve exemption detennination
authority to thecommander exercising SPCMCA inthe chain-ofcommand to which theunitor soldier is assignedrather than the
chain-of-command to which the unit or soldier is attached or
detailed.

10-4. Proceduresfore^emption
^. Active duty soldiers served with a summons to serve on a
State or local jury wifl advise their commander promptly and provide copies of pertinent documents.
^. Unit commanders wifl evaluate the summons considering both
the individual soldier's duties and the unit mission. Coordination
with the servicing judge advocate or legal adviser and with the
appropriate State or local official may be necessary to determine any
impact on the soldier's duties or onunit readiness.
(1) If the soldier is not exempt under paragraph 10 2^ or c
above,the commander wiflprocess the soldier for permissive temporary duty (TDY) perAR 630^5.
(2) If the soldier isexempt under paragraph 10-2^or^above,
the commander wifl forward the summons and any related documentation,with recommendations, through the chain-of-command to
the commander with exemption determination authority over the
soldier concemed.
c. Thecommander with exemptiondeterminationauthority over
the soldier concemed wifl determine whether the soldier is exempt
His or herdetermination is finaL
^. The exemption determination authority wifl notify responsible
State or localofficialswheneverasoldier summoned for juryduty
isexempt Thenotification wifl cite lOUSC 982 as authority.

10-2. Status, fees, and expenses
^. Soldiers who arerequiredto comply withsummonstoserve
on State or local juries wifl be placed on permissiveTDyunder the
provisions of AR 63(0-5.
^. Jury fees accming to soldiers for complying with the summons
to serve on State and localjuries must be tumed over to the appropriatefinanceofficefor deposit into the U.S.Treasury.Commands
wifl establish procedures with local authorities and their servicing
finance and accounting activity to ensure that such jury fees are so
deposited. Soldiers, however, may keep any reimbursement from
State or local authority for expenses incuned in the performance of
jury duty, including transportation, meals, andparking.

34

AR 27-40 • 19 September 1994

33729

Appendix A
Referenced

A1^ 37104^3
Military Pay and Allowances Procedures, Joint Uniform Military
Pay System Army (JUMPS-Army).

Section I
AR3710^
Finance and Accounting fbrlnstallations: Civilian Pay Procedures.

Required Publications
AR^^^^
The Department of the Army Freedom of Information Act Program.
(Cited in paras 7 1 and 9^.)
A1^2720
Claims. (Cited inparas 1 ^ , 5 1, and 3 8.)
A1^37^0
Pricing for Materiel and Services. (Cited in para 7-4.)
A1^ 37103
DisbursingOperations fbrFinance and Accounting Offices. (Cited
in para 3 8.)
A1^ 60^20
Army and Air Force Exchange Service Operating Policies. (Cited in
para 3 8.)
AR21^1
Administration of Army Morale,Welfare, and Recreation Activities
andNonappropriated Fund Instmmentalities. (Cited in para3 8.)

AR 55^19
Marine Casualties.
A1^ 190^29
Misdemeanors and Uniform violation Notices Refened to U.S.
Magistrates or DistrictCourts.
AR 190^0
Serious Incident Report.
AR 210^50
Housing Management
A1^ 33^15
Management Information Control System.
AR 600^0
Apprehension, Restraint, andRelease to Civfl Authorities.
AR 600^50

A1^21^2
The Management and Operation of Army Morale, Welfare, and
Recreation Activities andNonappropriated Fund Instmmentalities.
(Cited in para 3 8.)
A1^ 340^21
The Army Privacy Program. (Cited in paras 7 1 and 9^.)
A1^40^2^
Annexation. (Citedinpara 3 8.)
AR 630^2
LeavesandPasses. (Citedinparas 7 16, 10^, and 10^5.)
Sectionll
Related Publications
Arelatedpublicationismerelyasourceofadditionalinformation.
The user does nothave to read it tounderstand thispublication.
A1^20^1
Inspector General Activities and Procedures.

Standards of Conduct for Department of the Army PersonneL
AR 690^700
Personnel Relations and Services (General).
Section III
Prescribed Forms
DA Form 4
Department of the Army Certification for Authentication of
Records. (Prescribed inparas 3 11 and 5 3.)
Section iy
Referenced Forms
DA Form 2631 1^
Medical Care-Third Party Liability Notification.
DA Form 31^4
MSA Invoice and Receipt

Appendio^ 8
l^ailin^ Addre^^e^
Thefollowingisalist of frequently refened toDepartment of the
Army Services^Divisions^Offices and their mailing addresses:

AR2^30
The Army IntegratedPublishing and Printing Program.
A1^271
Judge Advocate Legal Service.
AR273
The Army Legal Assistance Program.
AR2710
Military Justice.
AR2750
Status ofForces Policies, Procedures, and Information.
A1^27^0
Intellectual Property.
AR 210^7
State and Local Taxation of Leesee's Interest in Wherry Act
Housing(TitleyiIIoftheNatiOna1Housing Act).

COMMANDER (JACS 2^)
U.S. ARMY CLAIMS SERVICE, OTJAG
BUILDING 4411, ROOM 206
LLEWELLyNAVENUE
FORT GEORGE G. MEADE, MD 20755 5360
PERSONNEL CLAIMSANDRECO^ERy DIVISION
(JACSPC)
U.S. ARMYCLAIMS SERVICE, OTJAG
BUILDII^G 4411, ROOM 206
LLEWELLYNA^ENUE
FORT GEORGEG MEADE, MD 20755-5360
TORT CLAIMS DIVISION (JACS TC)
U S ARMY CLAIMS SERVICE, OTJAG

AR 27-40 ^19 September 1994

32

33730

ARL1NGTON,^A 22203 1837
BUILDfl^G 4411, ROOM 206
LLEWELLYN AVENUE
FORT GEORGEG. MEADE, MD 20755 5360

fl^TELLECTUAL PROPERTY DIVISION
HQDA(JALSIP)
901 NORTH STUART STREET
ARLINGTON,VA 22203-1837

CONTRACT APPEALS DIVISION
HQDA(DAJA-CA)
901 NORTH STUART STREET
ARLINGTON,^A 22203 1837

REGULATORY LAW OFFICE
HQDA(JALSRL)
901NORTH STUART STREET
ARLINGTON,VA 22203 1837

CONTRACT LAWDIVISION
THE JUDGE ADVOCATE GENERAL
2200 ARMY PENTAGON
WASHfl^GTON DC 20310^2200

THE JUDGE ADVOCATE GENERAL
2200 ARMY PENTAGON
WASHINGTON DC 20310^2200

CRIMINAL LAWDIVISION
THE JUDGE ADVOCATE GENERAL
2200 AR^Y PENTAGON
WASHINGTON DC 20310-2200

THE AJAG FOR CIVIL LAW^LITIGATION
THE JUDGE ADVOCATE GENERAL
2200 ARMY PENTAGON
WASHINGTON DC 20310-2200

ENVIRONMENTALLAWDIVISION
HQDA(DAJAEL)
901 NORTH STUART STREET
ARLINGTON,^A 22203-1837

u s. ARMY TRIAL DEFENSE SER'VICE
HQDA(JALSTD)
NASSIF BUILDING
FALLS CHURCH,^A 22041 5013

LABOR AND EMPLOYMENT LAWDIVISION
THE JUDGE ADV^OCATE GENERAL
2200 ARMY PENTAGON
WASHfl^GTON DC 20310 2200

Appendiot C
Departn^ent o f D e f e n c e Directive 2405.^

LITIGATIONDIVISION
HQDA(DAJALT)
901 NORTH STUART STREET
ARL1NGTON,VA 22203 I837

DepartmentofDefense
Directive
July23,1985
NUMBER 5405.2
GC,DOD

CIVILIAN PERSONNEL BRANCH
HQDA(DAJALTC)
901 NORTH STUART STREET
ARLINGTON,yA 22203 1837

SUBJ^CT^
Release ofofficial Information in Litigation andTestimony by DoD
Personnel as Witnesses

GENERAL LITIGATION BRANCH
HQDA(DAJALTG)
901 NORTH STUART STRI^ET
ARLINGTON,VA 22203 1837

References;
(a) Title 5,United States Code, Sections 301, 552, and 552a
(b) Title IO,United States Code,Section 133
(c) DoD Directive 5220.6, ^^Industrial Personnel Security Clearance Program," December 20, 1976
(d) DoD 5200.1 R, "Information Security Program Regulation,"
August 1982, authorized by DoD Directive 5200.1,June7,1982
(e) DoD Directive 5230.25,^^Withholding of UnclassifiedTechnical Data from Public Disclosure," November 6, 1984
(f) DoDInstmction 7230.7,^^UserCharges,"Januaiy 29, 1985
(g) DoD 5400.7-R, ^^DoD Freedom ofinformation Act Program," December 1980, authorized by DoD Directive 5400.7,
March 24,1980

MILITARY PERSONNEL BRANCH
HQDA(DAJALTM)
901 NORTH STUART STREET
ARLfl^GTON,VA 22203 1837
TORT BRANCH
HQDA(DAJALTT)
901 NORTH STUART STREET
ARLfl^GTON,yA 22203 1837
PERSONNEL, PLANS, AND TRAINING OFFICE
THE JUDGE ADVOCATE GENERAL
2200 ARMY PENTAGON
WASHINGTON DC 20310^2200
PROCUREMENT FRAUD DfVISION
HQDA(DAJAPF)
901 NORTH STUART STREET

38

A. Purpose
Under Section 301 reference (a) and reference (b), this. Directive
establishes policy,assigns responsibilities, and prescribes procedures
for the release of official DoD information in litigation and for
testimony by DoD personnel as witnesses duringlitigation.
^.Applicability and Scope
^. This Directive applies to the Office ofthe Secretary ofDefense (OSD), the Military Departments, the Organization ofthe
Joint Chiefs of Staff (OJCS),theUnified and Specified Commands,
andthe Defense Agencies (hereafter referredto as ^^DoD Components"), and to afl personnel of such DoD Components.

AR 27-40^19 September 1994

33731

2. ThisDirectivedoes not apply tothereleaseofofficial informationor testimony by DoD personnelinthefollowingsituations:
(a) Beforecourts-martialconvenedby theautbority of theMilitaryDepartments or in administrative proceedings conducted by or
on behalf of a DoD Component;
(b) Pursuantto administrative proceedings conducted by or on
behalfoftheEqual Employment Opportunity Commission(EEOC)
orthe Merit Systems Protection Board(MSPB), or pursuant to a
negotiated grievance procedure underacollective bargaining agreement to which the Govemment is a party;
(c) In response to requests by Federal Govemment counsel in
litigation conducted on behalf of the United States;
(d) As part of the assistance required in accordance with the
Defense Industrial Personnel Security Clearance Program under
DoD Directive 5220.6 (reference (c)); or
(e) Pursuant to disclosureof information to FederaL State, and
local prosecuting and law enforcement authorities, in conjunction
with an investigation conducted by a DoD criminal investigative
organization.
ThisDirective doesnot supersedeormodifyexistinglaws or
DoD programs goveming the testimony of DoD personnel or the
release ofofficialDoDinformationduring grandjury proceedings,
therelease of official informationnotinvolvedin litigation,or the
release of officialinformationpursuant tothe Freedom of Information Act,5U.S.C. Section 552 (reference (a)) or the PrivacyAct5
U.S.C. Section 552a(reference(a)), nor does this Directive preclude
treating any written request for agency records that is not in the
nature of legal process asarequest under theFreedom of Information or Privacy Acts.
^. ThisDirective is not intended to infringe upon or displace the
responsibilities committed to the Department of Justice in conduct
ing litigation onbebalfof the United States in appropriate cases.
5. ThisDirective doesnot precludeofficialcommentonmatters
in litigation in appropriate cases.
1^. This Directive is intendedonly to provide guidance forthe
intemaloperation of the Department of Defense and is not intended
to, does not and may not be relied upon to create any right or
benefit, substantive or proceduraL enforceable at law against the
United States orthe Department ofDefense.

C. Definitions
^. ^^^^^^ Subpoena, order, or other demand of a court of
competentjurisdiction, orotherspecificauthority, for theproduction, disclosure, or release of official DoD information or forthe
appearance and testimony of DoD personnel as witnesses.
2. 70oD^^^^^^^^7 Present and former U.S. mflitary personneL
Service Academy cadets andmidshipmen; andpresent and former
civilian employees of any Component of the Department of Defense,including nonappropriatedfund activity employees;non-U.S.
nationals who perform services overseas, underthe provisions of
status of forces agreements, for the United States Armed Forces;
and other specificindividualshiredthroughcontractualagreements
by or on behalf of the Department ofDefense.
^. 7.^7^,^^^^7^^. Afl pretriaL triaL and post-trial stages of afl existing
or reasonably anticipated judicial or administrative actions, hearings,
investigations, or similar proceedings before civilian courts, commissions,boards (including the ArmedServicesBoard of Contract
Appeals), orolher tribunals, foreign and domestic. This term in
cludesresponses to discovery requests,depositions,andother pretrial proceedings, as wefl as responses to formal or informal requests
by attomeys or others in situations involving litigation.
^. ^7,^^^7^^ 7^^^^^^^^^. Afl information of any kind, however
stored, that is in the custody and control of the Department of
Defense, relates to information in the custody and control ofthe
Department, or was acquired by DoD personnel as part of their
officialduties or because of their officialstatuswithintheDepartment whilesuchpersonnel wereemployedby oronbehalfof the
Department or on active duty with the tinited States Armed Forces.

D. Policy
It is DoD policy that official information should generally be made
reasonably available for use in federal and state courts and by other
governmental bodies unless the infonnation is classified, privileged,
or otherwise protected from public disclosure.
E. Responsibilities
^. The ^^^^^^^ C^^^.^^^, ^^^^^^^^^^ ^ 70^^.^^ (GC, DoD),
shafl providegeneral policy andprocedural guidanceby the issuance of supplementalinstructionsorspecificorders concerning the
release of official DoD information in litigation and the testimony of
DoD personnel as witnesses during litigation.
2. The 77^^^.^^70^D^^^^^^^^^.^ shafl issue appropriate regulations to implement this Directive and to identify official information
that is involved in litigation.

F. Procedures
^. .^^^^^^^7^

B^^^

(a) In response toalitigation request or demand for official DoD
information orthe testimony of DoD personnel as witnesses, the
General Counsels of DoD, Navy, and the Defense Agencies; the
Judge Advocates General of the Military Departments; and the
Chief Legal Advisors to the JCS and the Unified and Specified
Commands, with regard to their respective Components, are
authorized—aflerconsultingandcoordinating withthe appropriate
Department ofJustice litigation attomeys, as required—todetermine
whetherofficial informationoriginatedbytheComponent maybe
released inlitigation; whether DoD personnelassignedto or affiliated with the Component may be interviewed, contacted, or used as
witnesses conceming official DoD information or as expert witnesses; and what if any, conditions wifl be imposed upon such
release, interview, contact or testimony. Delegation of this authority, to include the authority to invoke appropriate claims of privilege
before any tribunaL is permitted.
(b) In the event that a DoD Component receives a litigation
request or demand for official information originated by another
Componentthe receiving Component shallforward the appropriate
portions of the request or demand to the originating Component for
action in accordance with this Directive.The receiving Component
shafl also notify the requestor, court, or other authority of its transfer of the request or demand.
(c) Notwithstanding the provisions of paragraphsF.l.a. and b.,the
GC, DoD, in litigation involving tenorism, espionage, nuclear
weapons, intelligence means or sources, or otherwise as deemed
necessary, may notify ComponentsthatGC,DoD,wifl assume primary responsibility for coordinating afl litigation requests and
demands for official DoD information or the testimony of DoD
personneL or both; consulting with the Department of Justice, as
required; and taking final action on such requests and demands.
2. ^^^^^^.^
In deciding whether to authorize the
release ofofficial DoD information or the testimony ofDoD personnel conceming official information (hereinafier referred to as ^^the
disclosure")pursuanttoparagraphF.I., DoD officials shouldcon
siderthe following t^es offactors:
(a) Whether the request or demand is unduly burdensome or
otherwise inappropriate under the applicable court mies;
(b) Whether the disclosure, including release ^7^^^^^^^^^, is appropriate under themles of proceduregoveming the case or matter in
which the request or demand arose;
(c) Whether the disclosure would violateastatute,executive order, regulation, or directive;
(d) Whether the disclosure, including release ^7^^^^^^^, is appropriate or necessary underthe relevant substantive law concerning
privilege;
(e) Whether the disclosure,except when 17^^^^^^^ and necessary
to assert a claim of privilege, would reveal information properly
classified pursuant tothcDoDlnformationSecurityProgramunder
DoD 5200.1-R (reference (d)),unclassifiedtechnicaldatawithheld
frompublic releasepursuant to DoD Directive 5230.25 (reference
(e)), or other matters exempt from unrestricted disclosure; and,
(f) Whether disclosure would interfere with ongoing enforcement

AR 27-40 ^19 September 1994

3^

33732

proceedings, compromise constitutionalrights,reveal the identity of
an intelligencesourceorconfidential informant, disclose trade secretsorsimilarlyconfidentialcommercial orfinancialinformation,
or otherwise be inappropriate underthe circumstances.
^. D^c^.^!^^.!^
T^^r^^^^^^o^ ^^^^^.^^.^
70^^^^^
(a) Subject toparagraphF.3.e.,DoD personnelshaflnot inresponse toalitigation request or demand, produce, disclose, release,
comment upon,ortestifyconcerning any official DoD information
without theprior written approval ofthe appropriateDoDofficial
designatedinparagraphF.l. Oral approval may begranted,but a
record of such approvalshaflbe made andretainedinaccordance
with the applicable implementing regulations.
(b) IfofficialDoDinformation is sought, throughtestimony or
otherwise,byalitigation request or demand,the individual seeking
such release or testimony must set forth, in writing and with as
much specificity as possible, the nature and relevance ofthe official
mformation sought Subject to paragraphF.3.e.,DoD personnel may
only produce, disclose, release, comment upon, or testify conceming
thosemattersthatwerespecifiedin writing andproperly approved
bythe appropriateDoDofficial designatedin paragraph F.l. See
United States ex reL T'^^^yv.^^^^^, 340 U.S.462 (1951).
(c) WheneveralitigationrequestordemandismadeuponDoD
personnel fbr official DoD information or for testimony conceming
suchinformation,thepersonneluponwhomthe request or demand
wasmadeshaflimmediately notify the DoD official designated in
paragraphF.l.for the Component to which the individual contacted
is or,for former personneLwaslast assigned. In appropriate cases,
the responsibleDoD official shaflthereupon notify theDepartment
ofJustice ofthe requestor demands. After due consultation and
coordination withtheDepartment of Justice, as required, theDoD
official shafl determine whether the individual is required to comply
withthe requestordemandand shafl notify the requestor orthe
court or other authority of the determination reached.
(d) If, afierDoD personnel have receivedalitigation request or
demandandhave in tum notified the appropriate DoD official in
accordance with paragraph F.3.C., a response to the request or
demand is required before instmctions from the responsible official
arereceived, theresponsibleofficial designated in paragraph F.l.
shafl fiirnish the requestor orthe court or other authority with a
copy of this Directive and applicable implementing Regulations,
inform the requestor or the court or other authority that the request
or demand is being reviewed, and seek a stay ofthe request or
demand pendingafinal determination by the Component concemed.
(e) Ifacourtofcompetentjurisdictionorotherappropriateauthority declines to stay the effect ofthe request or demand in
response to action taken pursuant to paragraph F.3.d., or if such
court or other authority orders that therequestor demand must be
complied with notwithstanding thefinaldecisionof the appropriate
DoD officiaL the DoD personnel upon whom the request or demand
was made shafl notify the responsible DoD official of such mling or
order. If the DoD official determines that nofiirther legal review of
or challenge to the court's ruling or order wifl be sought lli^
affected DoD personnel shaflcomply withthe requestdemand,or
order. If directed by the appropriate DoD officiaL however, the
affectedDoD personnel shall respectfiilly decline to complywith
the demand. See United States ex reL
340 U.S. 462
(1951)
^.
Consistent with the guidelines in DoD Instmction 7230.7
(reference (f)), the appropriate officials designatedinparagraphF.l.
areauthorizedtochargereasonablefees, asestablishedby regulation andtothe extent not prohibitedby law, topartiesseeking,by
request or demand, official DoD information not otherwise available
under the DoD Freedom ofinformation Act Program (reference (g)).
Suchfees,inamounts calculated toreimbursethe Govemment for
the expense ofproviding such information,may include the costs of
time expendedby DoD employees to process and respond to the
request or demand; attomey time for reviewing the request or
demand and any information located in response thereto and for
relatedlegal workinconnection withtherequestordemand; and
expenses generated by materials and equipment used to search for,

38

produce, and copy the responsive information. See Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340 (1978).
5. Expert or Opinion Testimony. DoD personnel shall not provide, with or without compensation, opinion or expert testimony
conceming official DoD information, subjects, or activities, except
on behalf of the United States or a party represented by the Department of Justice. Upon a showing by the requestor of exceptional
need or unique circumstances and that the anticipated testimony will
not be adverse to the interests of the Department of Defense or the
United States, the appropriate DoD official designated in paragraph
F. l . may, in writing, grant special authorization for DoD personnel
to appear and testify at no expense to the United States. If, despite
the final determination of the responsible DoD official, a court of
competent jurisdiction, or other appropriate authority, orders the
appearance and expert or opinion testimony of DoD personnel, the
personnel shall notify the responsible DoD official of such order. If
the DoD official determines that no fiirther legal review of or challenge to the court's order will be sought, the affected DoD personnel shall comply with the order. If directed by the appropriate DoD
official, however, the affected DoD personnel shall respectfiilly decline to comply with the demand. See United States ex rel. Touhy v,
Ragen, 340 U.S. 462 (1951).
G. Effective Date and Implementation
This Directive is effective immediately. Forward two copies of implementing documents to the General Counsel, DoD, within 120
days.
Signed by WILLIAM H. TAFT, IV
Deputy Secretary of Defense

Appendix D
Department of Defense Directive 7050.5
Department of Defense Directive
June 7, 1989
NUMBER 7050.5
IG, DOD
SUBJECT:
Coordination of Remedies for Fraud and Cormption Related to
Procurement Activities
References:
(a) DoD Directive 7050.5, subject as above, June 28, 1985 (hereby canceled)
(b) Public Law 97-291, "The Victim and Witness Protection Act
of 1982," October 12, 1982
(c) Defense FAR Supplement (DFARS), Subpart 4.6, "Contract
Reporting"
(d) DoD Instruction 4105.61, "DoD Procurement Coding Manual," May 4, 1973
(e) DoD 4105.61-M, "Procurement Coding Manual" (Volume I),
October 1988, authorized by DoD Instruction 4105.61 May 4, 1973
A. Reissuance and Purpose
This Directive reissues reference (a) to update policies, procedures,
and responsibilities for the coordination of criminal, civil, administrative, and contractual remedies stemming from investigation of
fraud or cormption related to procurement activities. More effective
and timely communicaflon of information developed during such

AR 2 7 ^ 0 • 19 September 1994

33733

Investigations wifl enable the Department ofDefense to take the
mostappropriate ofthe available measures.
^.Applicability
This Directive applies to the Office of the Secretary ofDefense
(OSD); thelnspector GeneraL Departmentof Defense(IG, DoD);
the Military Departments; the Defense Agencies; and the DoD Field
Activities (hereafter referred to collectively as "DoD Components").
C. Definitions
^. D^DC^^7^i^^^7^v^.^^^^^niB^^^^^^^^^n^^^.^. Refers totheU.S.
Army Criminal Investigation Command; the Naval Investigative
Service Command; theU.S. AirForce Office of Special Investigations; and the Defense Criminal Investigative Service,Office of the
IG, DoD (OIG, DoD).
2. ,^^^^^c^^^ Refers to afl fraud cases involving an alleged loss
of ^100,000, ormore; afl cormptioncasesrelated toprocurement
that involvedbribery, gratuities, or conflicts ofinterest; and any
investigation into defective products or product substitution in
whichaSER10USHA2^ARD to health, safety, or operational readiness is indicated, regardless of loss value.
D. Pollcy
It is DoDpolicy that;
^. EachoftheDoDComponentsshaflmonitor,fromitsinception,aflsignificantinvestigationsof fraudor cormptionrelatedto
procurement activities affecting its organizations, for the purpose of
ensuring that afl possible criminaL civiL administrative, and contractual remedies in such cases are identified to cognizant procurement
and command officials and that appropriate remedies arepursued
expeditiously. This process shafl include appropriate coordination
with afl other affected DoD Components.
2. Afl investigations of fraud or corruption related to procurement
activities shafl bereviewed to determine and implement the appropriate contractual and administrative actions that are necessary to
recover fiinds lost through fraud or cormption and to ensure the
integrity of DoD programs andoperations.
Appropriate civiL contractuaL and administrative actions, including those set forth in enclosure I , shafl be taken expeditiously.
During an investigation and before prosecution or litigation, and
whenbasedinwholeorinpart onevidencedevelopedduringan
investigation, such actions shaflbetakenwiththeadvanceknowl
edge ofthe responsible DoD criminal investigative organization and,
when necessary, the appropriate legal counsel in the Department of
Defense and the Department of Justice (DoJ). When appropriate,
such actions shafl be taken before final resolution of the criminalor
civfl case.
E. Responsibilities
^. The .^^^^.^ ^D^TO Co^^^^^^^.^shafl:
(a) Establishacentralizedorganization(hereafler refened toas
"the centralized organization") tomonitor and ensure the coordinationofcriminaLciviLadministrative,andcontractua1 remediesfor
each significant investigationof fraud or corruption related to procurement activities affecting the DoD Component
(b) Establish procedures requiring the centralized organization to
diScussregularlywiththeassignedDoD criminal investigative organization(s) such issues as the cunent status of significant investigations and their coordination with prosecutive authorities.
(c) Establish procedures requiring that aflcoordination involving
the DoJ, during the pendency ofacriminal investigation,is accomplished by or with the advanceknowledge of the appropriateDoD
criminal investigative organization(s).
(d) Establish procedures to ensure appropriate coordination of
actionsbetweenthe centralized organizations of anyDoDComponents affected byasignificant investigationof fraudor cormption
related to procurement activities.
(e) Establish procedures to ensure that afl properand effective
civiLadministrative,andcontractual remedies available totheDepartment of Defense are, when foundapplicable and appropriate.

considered and undertaken promptly by the necessary DoD officials
(e.g., commanders, programs officials, and contracting officers).
This includes initiation of any suspension and debarment action
within 30 days of an indictment or conviction. The centralized
organizationshafl ensure that afl proposedactions are coordinated
with appropriate investigative organization.
(f) Establishprocedurestoensurethataspecific comprehensive
remedies plan is developed for each significant investigation involving fraud or cormption related to procurement activities.These procedures shall include the participation of the appropriate DoD
criminal investigative organization in thedevelopmentof theplan.
(g) Establish procedures to ensure that in those significant investigations of fraud or corruption related to procurement activities
when adverse impact onaDoDmissioncanbe determined, such
adverse impact is identified and documented by the centralized
organization.This information is tobeusedby thecentralizedorganization of the DoD Component concemed in development of the
remedies plan required in paragraph E.l.f, above, and shafl be
fiimishedtoprosecutors as stated in paragraph E.2.e., below. The
informationshafl alsobeusedby thecentralizedorganizations in
development and preparation of"Victim Impact Statements" for use
in sentencing proceedings,asprovidedforP.L. 97-291 (reference
(b)). SomeexamplesofadverseimpactonaDoD mission are as
follows:
(^^ Endangerment of personnel orproperty.
(2^ Monetary loss.
(.^7 Denigration of program or personnel integrity.
(^^7 Compromise ofthe procurement process.
(^.^7 Reduction or loss of mission readiness.
(h) Ensure training materials are developed on fraud and cormptionintheprocurementprocess,and that aflprocurement andprocurement-related training includes a period of such instmction
appropriate to the duration and nature of the training.
(i) Establishprocedures enabling the centralizedorganization to
ensurethat safety and readiness issuesare examined and appropriately dealt with for afl cases in which anoticeisrequiredunder
paragraph E.2.i.,below.The minimum procedures to be followed by
the centralized organization are in enclosure 3.
(j) Ensure that appropriate command, procurement, and investigative organizations are provided sufficient information to determine if
fiirther inquiry is wananted on their part to prevent reoccurrence
and detect other possible fraud within their activity.
2. The Secretaries of the Military Departments and thelnspector
GeneraL Department of Defense (IG, DoD), or their designees, shafl
establish procedures that ensure that their respective criminal investigative organizations wifl:
(a) Notify, in writing, the centralized organization for the affected DoD Component of thestart of afl significant investigations
involving fraud or corruption that are related to procurement activities. Initial notification shafl include the following elements:
(^^ Case title.
(27 Case control number.
(^7 Investigative agency and office of primary responsibility.
(^7 O^^^ opened.
(.^7 Predication.
(^ Suspected offense(s).
(b) Notify expeditiously theDefenselnvestigative Service (DIS)
of any investigations that develop evidence that would impact on
DoD-cleared industrial facilities or personneL
(c) Discuss regularly with the centralized organization such issues as the cunent status of significant investigations and their
coordination with prosecutive authorities. If the DoD criminal investigativeorganizationhaspreparedany documentssummarizingthe
cunent status ofthe investigation, such documents shafl be provided
to the centralized organization. Completed reports of significant
investigations also should be provided to the centralized
organization.
(d) Provide to the appropriate procurement officials, commanders,and suspension anddebarment authorities, when neededto allow consideration of applicable remedies, any court records.

AR 27-40 • 19 September 1994

39

33734

documents, or other evidence of fraud or cormption related to procurement activities. Suchinformationshaflbeprovidedinatimely
manner to enable the suspension and debarment authority to initiate
suspension and debarment action within 30 days of an indictment or
conviction.
(e) Provide expeditiously toprosecutiveauthoritiestheinformation regarding any adverse impact on a DoD mission, that is
gathered under paragraph E.I.g.,above,for the purpose of enhancing the prosecutability ofacase. Suchinformationalsoshouldbe
used inpreparingavictimimpact statement for use insentencing
proceedings as provided for in PublicLaw 97-291 (reference (b)).
(f) Gather, at the earliest practical point in the investigation,
withoutrelianceongrandjury subpoenas whenever possible, relevant information conceming responsible individuals, the organizational structure,finances,andcontract history of DoD contractors
under investigationfor fraudorcormption related toprocurement
activities, to facilitate the criminal investigation as wefl as any civiL
administrative, or contractual actions or remedies that may be taken.
Some available sources of such information arelisted in enclosure
2
(g) Provide timely notice to other cognizant DoD criminal investigative organizations of evidence of fraud by a contractor, subcontractor, or employees of either, on cunent or past contracts with,
oraffecting, otherDoDComponents.
(h) Ascertain the impact upon any ongoing investigation or prosocutionofciviLcontractuaLand administrative actionsbeingconsideredandadvisethe appropriatecentralizedorganizationof any
adverse impact
(i) ObtainaDD 350 report ineveryinvestigationinto defective
products or product substitution in whichaSERI0USHA2^ARD to
health, safety, or operational readiness is indicated.Timely notification shafl be made to the centralized organization of each DoD
Component that is identified as having contract actions with the
subject ofthe investigation.
(j) ObtainaDD 350 report in afl significant fraud investigations,
as defined in subsection C.2. above, whether or not the case involved defective products or product substitution. Timely notification shafl be made to the centralized organization of each DoD
Component that is identified as having contract actions with the
subject ofthe investigation.
The 7^.^^^^^^^
77^^^^^^^^^^ ^ 70^^^^ (IG, DoD),
shafl:
(a) Develop training materials relating tofraud and cormption in
procurement related activities which shafl be utilized in afl procurement related training in conjunction with training materials
developed by the DoD Components. (See paragraph E.l.h., above.)
(b) Establish procedures for providing to the DoD criminal inves
tigative organizations, through the Office of the Assistant Inspector
General for Auditing (OAIG-AUD), reports ofdata contained in the
Individual Procurement Action Report (DD Form 350) System.
F. Procedures
Transmissions of information by DoD criminal investigative organizations required by subsection E.2., above, shafl be made as expeditiously aspossible, consistent with effortsnot tocompromise
any ongoingcriminalinvestigation.The transmissionofthe information may be delayed when, in the judgment of the head of the
DoD criminal investigative organization, failure to delay would
compromise the success of any investigation or prosecution. The
prosecutiveauthoritiesdealing withthe investigationshafl beconsulted, when appropriate, in making such determinations.
G. Effective Date and Implementation
This Directive is effectiveimmediately.Forward two copies of implementing documents to the Inspector GeneraL Department of Defense, within 120 days.

Enclosures—3
^. Civfl Contractual and Administrative Actions That Can Be
Taken in Response to Evidence of Procurement Fraud
2. Sources ofinformation Relating to Govemment Contractors
Actions to be Taken in Product Substitution Investigations
Jan7,89
7050 5 (Enc11)
Civil, Cootractual, aod Aministrative Actions That Can Be
Takeo io Respoose to Evidence of Procurement Fraud

A. Civil
/. Statutory
a. False Claims Act (31 U.S.C. 3729 et seq.).
b Anti-Kickback Act (41 U.S.C. 51 et seq.).
c. Voiding Contracts (18 U.S.C. 218).
d Tmth in Negotiations Act (10 U.S.C. 2306(f)).
e. Fraudulent Claims-Contract Disputes Act (41 U.S.C. 604)
2. Nonstatutory
a. Breach of contract.
b. Breach of wananty.
c. Money paid under mistake of fact.
d. Unjust enrichment.
e. Fraud and/or Deceit.
/ Conversion.
g. Recision and/or Cancellation.
h. Reformation.
i. Enforcement of performance bond/guarantee agreement.
B. Contractual
a. Termination of contract for default.
b. Termination of contract for convenience of Govemment.
c. Termination for default and exemplary damages under the gratuities clause.
d. Recision of contract.
e. Contract wananties.
/ Withholding of payments to contractor.
g. Offset of payments due to contractor from other contracts.
h. Price reduction.
/. Conecfion of defects (or cost of conection).
j . Refiisal to accept nonconforming goods.
k. Revocation of acceptance.
/. Denial of claims submitted by contractors.
m. Disallowance of contract costs.
n. Removal of the contractor from automated solicitation or payment system.
C. Administrative
a. Change in contracting forms and procedures.
b. Removal or reassignment of Government personnel.
c. Review of contract administration and payment controls.
d. Revocation of warrant contracting officer.
e. Suspension of contractor and contractor employees.
/ Debarment of contractor and contractor employees.
g. Revocation of facility security clearances.
h. Nonaward of contract based upon a finding of contractor
nonresponsibility.
->
i. Voluntary refiinds.

Donald J. Atwood
Deputy Secretary ofDefense

40

AR 27-40 • 19 September 1994

Jun 7, 89
7050.5 (Encl 2)

33735

Table D-t
Source of Information Isolating toCovernmentContractors
Type of Information; 1. Location, dollar v^luo, typo, and number of
current contracts witb tbe Oepartment of Oefense.
Possible Source; a. 00 Form 350 Report.1
b. Oefense Logistics Agency's (OLA) "Contract Administration Oefense
Logistics Agency's(OLA)ContractAdministrationl^eport^(CAI^ Report)
on contracts OLA administers.
Type of Information; 2. Fin^nci^l stilus of corporation, history of
corporalion,owners, and officers.
Possible Source; a. Ounn and Bradstreef Reports.
b. Corporate filings with local secretaries of Tbe Slate, or corporate
recorders.
c. Securities and exchange Commission (public corporations).
d. Small business Administration (SBA) (small businesses).
e. general Accounting Office (bid protests, and conlraclors indebted lo
tbet3overnment).
fArmedSeryices Board ofContractAppeals(ASBCA)or court litigation,
g. List of Contractors Indebted to the United States (maintained,
published and distributed by tbe U.S. Army Finance and Accounting
Center, Indianapolis, Indiana 4^24^)
Type of Information; 3. Security clearance background information on
facility and officers.
Possible Source; a. Oefense Investigative Service.
Type of Information; 4. Ferformance history of contractor.
Possible Source; a.Local contracting officers.b.Oefense Contract
Administration Service preaward surveys,
c. SBA Certificate of Competency records.
Type of Information; 5. Name, location, offense alleged, and previous
Inyestigative efforts Involving OLA-awarded or DLA-administered
contracts.
Possible Source; OLA Automated Criminal Case Management
System. (Available through field offices of tbe OLA Counsei'soffice.)
Type of Information;^.Bid protests,litigation,and bankruptcy
inyolvingOLA awarded or OLA^administered contracts.
Possible Source; Field offices of Ibe OLA Counsei'soffice.
I^otes:
^^determination asto tfie contract history of any OoO contractor^itb contracts In
excess of ^25,000 annually can be m^detbrougbere^iew of the ^^Indi^idual
procurement action l^eport^^(DDl^orm 350^ system,^s prescribed by Si^bp^rt4.^
of tbe OoO I^Al^ Supplement, OoO Instruction 4105.81, end DoO ^105.61-iyi
(references(c^,(d^,end(e^^.

Jun 7, 89
70505 (Enc13)
Actions To Be Takeo io Product Substitutioo
tovestigatioos
A.
The centralized organization, in afl cases involving allegations of
product substitution in whichaSERIOUS HAZARD to health, safe
ty, or operational readiness is indicated shafl:
^. Review thenoticeof thecase immediately afier receiving it
from the Defense criminal investigative organization. Review the
notice to determine any potential safety or readiness issues indicated
by the suspected fraud.
2. Notify aflappropriatesafety,procurement, andprogramofficials of the existence of the case.
Obtain acomplete assessment from safety, procurement and
programofficialsoftheadverseimpactofthe fraudonDoDprograms and operations.
^. Ensurethat theDoD Component provides theDefense criminal investigative organization with ftifl testing support to completely
identify the defective nature of the substituted products.Costs associated with the testing shafl be assumed by the appropriate procurementprogram.

Prepare acomprei,^„sive impact statementdescribing theadverse impact of the fraud on DoD programs for use in any criminaL
civiL or contractual action related to the case.
8.
In afl cases involving allegations of product substitution that affect
more thanoneDoDComponent that centralizedorganizations of
the affected DoD Components shafl identify a lead Agency. The
lead centralized organization shafl ensure that information on the
fraud is provided to the centralized organization ofafl other affected
DoD Components. The lead centralized organization shafl ensure
compliance with the requirements of section A., above. The lead
centralized organization shafl then be responsible for preparing a
comprehensive "Victim Impact Statement" as required by paragraph
E.l.g. ofthis Directive.
In afl cases involvingallegations of product substitution, theDefense Criminal Investigative Organization shafl:
^. Immediately notify the appropriate centralized organization of
the beginning of the case.
2. Continue to provide to the centralized organization any informationdevelopedduring thecourseofthe investigation that indicatessubstitutedproductshavebeen, or might be,providedtothe
Department ofDefense.
Ensurethat any request for testingofsubstitutedproducts is
provided to the centralized organization.

Appendix ^
D e p a r t m e n t o f D e f e n s e Directive 5505.5

D e p a r t m e n t o f D e f e n s e Directive
August 30,1988
NUMBER 5505 5
GC,DOD
StlBJF^CT:
Implementation of the Program Fraud Civfl Remedies Act
References:
(a) Public Law 99-509,"The Program Fraud Civfl Remedies Act
ofl986,"October2l,1986
(b) Title 5,United States Code,Chapters 33,43, 51, 53, Subchapter 111
(c) Title 31, United StatesCode,Sections 3716, 3729,3730,
3803,3804,3805,3806,3808
(d) Titlel8,United States Code, Section 287,Federal Rules of
Criminal Procedure, Rule 6(e)
(e) through (h), see enclosure 1.
A. Purpose
ThisDirective establishes uniformpolicies,assigns responsibilities,
and prescribes procedures for implementation of reference (a).
B. Applicability
This Directive applies to the Office of the Secretary ofDefense
(OSD) the Military Departments, the Office ofthe Inspector GeneraL Department ofDefense (OIG, DoD); the Defense Agencies; and
the DoD Field Activities (hereafter refened to collectively as "DoD
Components").
C. Policy
It isDoD policy to redressfi^audinDoD programs and operations
through the nonexclusive use of reference(a).Afl DoD Components

AR 27-40 ^19 September 1994

41

33736

shall comply with the requirements of this Directive in using this
new remedy. Changes or modifications to this Directive by implementing organizations are prohibited. Implementing regulations
are authorized only to the extent necessary to effectively carry out
the requirements of this Directive.
D. Responsibilities
y. The Inspector General, Department of Defense (IG, DoD),
shall establish procedures for carrying out the duties and responsibilities of the "investigating official" as outlined in enclosure 2.
2. The General Counsel, Department of Defense (GC, DoD),
shall:
(a) Establish procedures for carrying out the duties and responsibilities of the authority head, Department of Defense, which have
been delegated to the GC, DoD, as set forth in enclosure 2;
(b) Establish procedures for carrying out the duties and responsibilities for appointment and support of presiding officers, as set
forth in enclosure 2; and
(c) Review and approve the regulations and instmctions required
by this section to be submitted for approval by the GC, DoD.
3. The Secretaries of ihe Military Departments shall:
(a) Establish procedures for carrying out the duties and responsibilities of the "authority head" and of the "reviewing officials" for
their respective Departments, and for obtaining and supporting presiding officers from other Agencies as specified in Office of Personnel Management (OPM) regulations; (See enclosure 2.)
(b) Make all regulations or instmctions promulgated subject to
the approval of the GC, DoD; and
(c) Delegate duties as appropriate.
4. The General Counsel of the National Security Agency (GC,
NSA) and the General Counsel of the Defense Logistics Agency
(GC, DLA) shall be responsible for establishing procedures for
carrying out the duties and responsibilities of the reviewing officials
that have been delegated to them, as stated in enclosure 2. All
Regulations or Instructions promulgated pursuant to this Directive
shall be submitted to the GC, DoD.
E. Effective Date and Implementation
This Directive is effective immediately. Two copies of DoD Component implementing documents and subsequent amendments shall
be forwarded to the General Counsel, Department of Defense,
within 90 days. Other DoD Components shall disseminate this Directive to appropriate personnel.
Signed by WILLIAM H. TAFT, IV
Deputy Secretary of Defense
Enclosures—2
/. References
2. Program Fraud Civil Remedies
Aug 30, 88
5505.5 (Encl 1)

References, contioued
(e) Title 28, United States Code, Federal Rules of Civil Procedure, Rules 4(d)d and 34.
(f) Tifle 32, Code of Federal Regulations, Part 97
(g) Title 28, United States Code, Federal Rules of Evidence, Rule
408
(h) Tifle 32, United States Code, Section 3805
Aug 30, 88
5505.5 (Encl 2)

42

PROGRAM FRAUD CIVIL REMEDIES

A. Scope and purpose
/. The Department of Defense has the authority to impose civil
penalties and assessments against persons who make, submit or
present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to authorities or to
their agents.
2. This enclosure:
(a) Establishes administrative policies and procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false,
fictitious, or fraudulent claims or written statements to authorities or
to their agents;
(b) Specifies the hearing and appeal rights of persons subject to
allegations of liability for such penalties and assessments.
j . The uniform policies and procedures established by this enclosure are binding on the authorities and authority heads in the Department of Defense and Military Departments. Additional
administrative regulations necessary to carry out the requirements of
the PFCRA (reference (a)) and this Direcflve may be written by the
authority heads. Any regulations shall be consistent with the provisions of this enclosure.
B. Definitions
1. Adequate evidence. Information sufficient to support the reasonable belief that a particular act or omission has occuned.
2. Authority
(a) The Department of Defense, which includes OSD, Organization of the Joint Chiefs of Staff (OJCS), Unified and Specified
Commands, Defense Agencies, and DoD Field Activities.
(b) The Department of the Army.
(c) The Department of the Navy.
(d) The Department of the Air Force.
3. Authority head
(a) For the Department of Defense, the Deputy Secretary of the
Department of Defense or an official or employee of the Department
of Defense or the Military Departments designated in writing by the
Deputy Secretary of Defense.
(b) For the respective Military Departments, the Secretary of the
Military Department or an official or employee of the Military
Department designated in regulations promulgated by the Secretary
to act on behalf of the Secretary.
4. Benefit. In the context of statements, anything of value, including but not limited to any advantage, preference, privilege, license, permit, favorable decision, ruling status, or loan guarantee.
5. Claim. Any request, demand, or submission made as follows:
(a) To the authority for property, services, or money (including
money representing grants, loans, insurance, or benefits);
(b) To a recipient of property, services, or money from the authority or to a party to a contract with the authority:
(1) For property or services if the United States:
a. Provided such property or services;
b. Provided any portion of the funds for the purchase of such
property or services; or
c. Will reimburse such recipient or party for the purchase of such
property or services; or
(2) For the payment of money (including money representing
grants, loans, insurance, or benefits) if the United States:
a. Provided any portion of the money requested or demanded;
or
b. Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
(3) Made to the authority that has the effect of decreasing an
obligation to pay or account for property, services, or money.

AR 27-40 • 19 September 1994

#

33737

^. C^^^^^^T^^. The administrative complaint served by the
reviewing official on thedefendant under section G., below.
^. D^^^^^^. Any person alleged in a complaint under section
G., below, to be liable for a civfl penalty or assessment under
section C, below.
^. DoD c^^T^^T^^y ^7^v^.^^^^^^nv^ o^^^^^^^^^^T^^.^. The U.S. Army
Criminalinvestigative Command,NavalSecurity and Investigative
Command,U.S. Air Force Office of Special Investigations, and the
Defense Criminal Investigative Service.
^. t7^^^^^^^^r. The U.S. Govemment
B^^^v^^^^^y. A natural person.
y.^. 7^^7^7i^y^^^^.^^7^^. The writtendecisionof the presiding officer
required by section J. or KK.,below.Thisincludesarevised initial
decision issued followingaremandoramotion of reconsideration.
^2. 7^v^.^^^^^^^^7^^^^^7^y
(a) TheIG, DoD; or
(b) An officer or employee ofthe OIGdesignatedby the IG;
(c) Wbo, ifamember of the Armed Forces of theUnited States
onactiveduty, isservinginGrade(0-7 oraboveor, ifacivilian
employee, is serving inaposition for which the rate ofbasic pay is
not less than the minimum rate ofbasic pay for Grade GS-16 under
the General Schedule.
y.^. 7;^^o^.^ 0^^^.^^^^.^^^ ^0^0^. Aperson who,with respect to
a claim or statement
(a) Has actual knowledge that the claim or statement is false,
fictitious, or fraudulent
(b) Acts in deliberate ignorance of the tmth or falsity of the
claim or statement or
(c) Acts in reckless disregard of the tmth or falsity of the claim
or statement
7^.
Includes the terms presents, submits, and causes to be
made,presented, or submitted. Asthecontext requires,makingor
made shafl likewise include the conesponding forms of such terms.
^5. ^^^.^o^. Any individuaL partnership, corporation,associafion
orprivateorganization, andincludestheplural of that term.
^1^. .^B^^^o^^^^^^^^ ^^^2 ^v^T^^^^^. The evidence necessary to
supportapresiding officer's decision thataviolation of the PFCRA
(reference (a))hasoccuned. Evidencetbat leads tothebelief that
what is sought to be proved is more likely true than not tme.
^^.^^^.^^^^T^^^c^^.An officer or employee of the Department
of Defense or an employee detailedtothcDepartment of Defense
from another agency who:
(a) Isselectedunder5 U.S.C, Chapter33 (reference (b)),pursuant to the competitive examination process applicable to administrative law judges;
(b) Is appointed by the authority head of DoD to conduct hearings under this Directive for cases arising in the Department of
Defense orthe Military Departments;
(c) Is assigned to cases in rotation so far as practicable;
(d) May notperformduties inconsistent withthe duties and responsibilities of apresiding officer;
(e) Is entitled to pay prescribed by the Office of Personnel Management (OPM) independently of ratings and recommendations
made by the authority and in accordance with5U.S.C.,Chapters5l
and 53, Subchapter III (reference (b));
(f) Is not subject toaperformance appraisal pursuant to5U.S.C.,
Chapter 43 (reference (b)); and
(g) May be removed, suspended, fiirloughed, or reduced in grade
or pay only for good cause established and determined by the Merit
Systems Protection Board(MSPB) ontherecord after opportunity
forbearing by such Board.
7^^^^^.^^^^^^iv^. An attomey-at-law duly licensed in any State,
commonwealth, tenitory, the District of Columbia, or foreign coun
try,who enters his or her appearance in writing to representaparty
inaproceeding under this part,oranofficer,director,or employee
of a defendant or of its affiliate.
^^v^^^^T^^^^^^^^
(a) In afl cases arising in the Department of Defense and any of
theMilitaryDepartments,the reviewing official shafl be an officer
or employee of an authority as follows:

(^^ Who is designated by the authority head to made the determination required under section E., below, of this enclosure;
(27 Who, ifamember of the Armed Forces of theUnited States
on active duty, is serving in Grade 0-7 oraboveor, i f a civilian
employee, is serving inaposition for which the rate ofbasic pay is
not less than the minimum rate ofbasic pay for Grade GS-16 under
the General Schedule; and
(.^7 ^ 1 ^ ^ i^ follows:
^. Not subject to supervision by, or required to report to, the
investigating officiaL
^. Not employed in the organizational unit of the authority in
which the investigating official is employed; and
^. Not an official designated to make suspension ordebarment
decisions.
(b) The General CounseL Defense Logistics Agency (GC, DLA),
shafl be the reviewing official for afl cases involving a claim or
statement made to the DLA or any other part of the Department of
DefenseotherthanaMilitary Department or theNationalSecurity
Agency (NSA). The General CounseL National SecurityAgency
(GS,NSA),shaflbethercviewingofficialforafl cases involving
claims or statements made to that Agency.TheGeneral CounseL
Defense Logistics Agency (GS, DLA), and GC, NSA, may
redelegate their authority to act as reviewing officials to any individual(s) meeting the criteria set out in subparagraph (I)of this section.
(c) The authority head ofeach Military Department shafl selecta
reviewing officiaLwho shafl review aflcasesinvolvingaclaimor
statement that was made to their Department
2(^.
Any writtenrepresentation, certification, affirmation, document record, accounting, or bookkeeping entry made:
(a) With respect toaclaim or to obtain the approval or payment
of a claim (including relating to eligibility to make a claim); or
(b) With respect to (including relating to eligibility for):
(77 Acontractwith,orabidorproposalforacontractwith;or
(2^ A grant, loan, or benefit from the authority, or any State,
politicalsubdivisionofaState,or other party;if theU.S.Govemment provides any portion of the money or property under such
contract or for such grant, loan,or benefit, or ifthe U.S.Government
wifl reimburse such State, political subdivision, or party for any
portionofthemoney or property under suchcontract or for such
grant loan, or benefit
C. Basisforcivfl penalties and assessments
B. C^^^T^.^
(a) Any person whomakesaclaim that the person knows or has
reason to know:
(^^7 1^ false, fictitious, or fraudulent
(27 Includes or is supported byawritten statement that assertsa
material fact that is false, fictitious, or fraudulent
(.^7 Includes or is supported by any written statement that
^. Omits a material fact;
^. Isfalse,fictitious,or fraudulent asaresultof suchomission;
and
^. Isastatement in which the person making such statement has
a dutyto include such material fact; or
(^ Isforpaymentfortheprovisionofproperty or services that
the person had not provided as claimed, shafl be subject, in addition
to any other remedy that may be prescribed by law, to a civfl
penalty of not more than ^5,000 for each such claim.
(b) Each voucher, invoice, claim form, or other individual request
or demandfor property, services, ormoney constitutes aseparate
claim.
(c) Aclaim shaflbeconsideredmade toanauthority,recipient
or party when suchclaimis received by an agentfiscal intermediary, or other entity, including any State or political subdivision
thereof, acting for or on behalf of such authority,recipient, or party.
(d) Eachclaim for property, services, ormoney is subject toa
civfl penalty regardless of whether such property,service,or money
is actually delivered or paid.
(e) Ifthe Govemmentbas made any payment (including transfened property or provided services) onaclaim,aperson subject to
acivfl penalty under subparagraph a.(1)of this section shafl also be

AR 2 7 ^ 0 ^ 1 9 September 1994

43

33738

subject to an assessment of not more than twice the amount of such
claim or that portion thereof that is determined to be in violation of
subparagraph a.(1) of this section.Such assessment shafl be in lieu
of damages sustained bythe Govemment because of such claim.
2. .^^^^^B^^^^^.^

(a) Any person who makes a written statement that
(^^7 ^1^^ person knows or has reason to know the following:
^. Assertsamaterial fact that is false,fictitious,or fraudulent or
^. Is false, fictitious, or fraudulent because it omits a material
fact that the person making the statement hasadutytoincludein
such statement;and
(27 Contains or is accompanied by an express certification or
affirmationof the truthfulnessand accuracy of the contents of the
statement, shafl be subject in addition to any other remedy that may
be prescribed by law, toacivfl penalty of not more than ^5,000 for
each such statement
(b) Eachwrittenrepresentation,certification,or affirmation constitutes a separate statement
(c) Astatement shafl be consideredmade to an authority when
such statement is received by an agentfiscal intermediary, or other
entity, including any State or political subdivision thereof, acting for
or onbehalf of such authority.
No proofofspecificintent to defraudisrequiredto establish
liability underthis section.
^. In any case in which it is determined that more than one
person is liable for makingaclaim or statement under this section,
each such person may be held jointly and severally liable foracivfl
penalty with respect to such claims or statements.
5. In any case in which it is determined that more than one
person is liablefor makingaclaim under this section on which the
Govemment has made payment (including transfened property or
provided services), an assessment may be imposed against any such
person or jointly and severally against any combination of such
persons.

postpone a report or refenal to the reviewing official to avoid
interference with a criminal investigation or prosecution.
7. Nothing in this section modifies any responsibflity of an investigating officialto report violations of criminallaw to the Attomey
GeneraL
Nothing in this section shafl preclude or limit the investigating
official'sauthority to obtain the assistance of any investigative units
of theDepartment of Defense,including those of the Military Departments. In this regard, appropriate investigation may be conducted by the Defense criminal investigative organizations and other
investigative elements of the Military Departments and Defense
Agencies.

0. Investigation

E. Review by therevlewing official
y. Ifbased onthe report of theinvestigating officialunder subsectionD.2.,above, thereviewingofficial determines thatthere is
adequate evidence to believe thataperson is liable under section C,
above,the reviewing officialshafltransmit tothe Attomey General
or his or her designated point of coordination within the Department
ofJustice a writtennotice ofthe reviewing official's intentionto
issue a complaint under section G., below.
2. Such notice shafl include the following:
(a) Astatement of thereviewingofficial'sreasonsforissuinga
complaint;
(b) Astatement specifying the evidence that supports the allegations of liability;
(c) A description of the claims or statements upon which the
allegations of liability are based;
(d) An estimate of the amount of money or the value of property,
services, or other benefits requested or demanded in violation of
section C, above.
(e) A statementof any exculpatory or mitigating circumstances
that may relate to the claims or statements known by the reviewing
official or the investigating official; and
(f) Astatement that thereisareasonable prospect ofcollecting
an appropriate amount of penalties and assessments.

y. If the investigating official concludes thatasubpoena pursuant
to the authority confenedby31 U.S.C. ^3804(a) (reference (c)) is
wananted, then:
(a) Thesupoenasoissuedshaflnotify thepersontowhomitis
addressed of the authority under whichthe subpoena isissued and
shafl identify the records or documents sought;
(b) The investigating official may designateaperson to act on his
or her behalf to receive the documents sought; and
(c) The person receiving such subpoena shafl be required to ten
der to the investigating officiaL or to the person designated to
receive the documents, a certification that the documents sought
havebeenproduced,orthat suchdocuments arenot available and
the reasons therefor, or that such documents, suitably identified,
have been withheld based upon the assertion of an identified
privilege.
2. If the investigating official concludes that an action under the
PFCRA may be warranted,theinvestigatingofficialshaflsubmita
report containing thefindingsand conclusions of such investigation
to the appropriate reviewing official(s). In instances where the false
claim or false statement involves more than one authority within the
Department ofDefense, or where the investigating officialfindsthat
more than one case has arisen fi^om the same set of facts, the
investigating official may, at his or her sole discretion, refer the
case(s) tothe reviewingofficialofone of the affected authorities.
That reviewingofficialshaflconsolidatethe claims and statements
and act for alLNothing inthis subsectionconfers any right in any
party to the consolidation or severance of any case(s), although
presiding officersmay, at their sole discretion,entertain motions to
consolidate or sever.
Nothing inthis section shafl preclude or limit aninvestigating
official'sdiscretion to refer allegations directly to the Department of
Justice for suit under 18US.C.^287 (reference (d)) or 31US.C.
^^ 3729 and 3730 (reference(c)), FalseClaims Act orolher civfl
relief, or toprecludeor limit suchofficial'sdiscretiontodeferor

F. Prerequisites for issuing a complaint
y. The reviewing official may issueacomplaint under section G.,
below, only i f
(a) The Attomey General or an Assistant Attomey General designated by the Attorney General approves the issuance ofacomplaint
inawritten statement described in31 U.S.C.^ 3803(b)(1) (reference (c)); and
(b) Inthecaseofallegationsof liability under subsectionC.I.,
above,with respect toaclaim,the reviewing official determines that
with respect to such claim oragroup of related claims submitted at
the sametimesuchclaimissubmittcd (as defined insubsection 2.
ofthis section), theamount of money orthe valueofproperty or
services demanded or requested in violation of subsection C L ,
above, does not exceed ^150,000.00;
2. For the purposes of this section, a related group of claims
submittedat thesame timeshafl includeonly thoseclaimsarising
from the same transaction(e.g.,grant loan,application, or contract)
that are submitted simultaneously as part of a single request
demand, or submission.
^. Nothing inthis section shafl be construed tolimit the reviewingofficial'sauthoritytojoininasinglecomplaintagainstaperson's claims that are unrelated or were not submitted
simultaneously, regardless of the amount of money or the value of
property or services demanded or requested.
^. Inany case that involvesclaimsorstatementsmade to more
than one entity within the Department ofDefense orthe Mflitary
Departments, or the reviewing officials having responsibility for
each such entity, as stated in subsection D.2., above, shafl have
concunent jurisdiction to make the required determinations under
this section. In any such case, the responsible reviewing officials
shafl coordinate with each other prior tomaking any determination
under this section. Where more than one case arises from the same

44

AR 27-40 ^19 September 1994

33739

set of facts, such cases shafl be consolidated to the degree practicable, although the reviewing official shafl have absolute discretion to
make such determination. The requirements of this paragraph do not
confer any procedural or substantive rights upon individuals, associations, corporations, or other persons or entities who might become
defendants underthe PFCRA (reference (a)).
G. Complaint
On or after the date the Attomey General or an Assistant
Attomey GeneraldesignatedbytheAttomeyGeneralapprovesthe
issuanceofacomplaint inaccordance with31 U.S.C. ^3803(b)(l)
(reference (c)),the reviewing official may serveacomplaint on the
defendant ^s provided in section H., below.
2. The complaint shafl state the following:
(a) The allegations of liability against the defendant including
the statutory basis for liability, an identification of the claims or
statements that are the basis for the alleged liability,and the reasons
why liability allegedly arises from such claims or statements;
(b) The maximum amount of penalties and assessments for which
the defendant may be held liable;
(c) Instructions for filing an answer to a request including a
specific statement of the defendant'srighttorequestahearing,by
filing an answer and to be represented by a representative; and
(d) That failure to file an answer within 30 days fo service of the
complaint shafl result in the imposition ofpenalties and assessments
without right to appeaL consistent with the provisions of section J.,
below.
^. At the same time the reviewing official serves the complaint
heorsheshafl notify the defendant withacopy of thisDirective
and any applicable implementing regulations.
H. Serviceof complaint
J. Service ofacomplaint must be made by certified or registered
maflorbydelivery in any manner authorized by Rule 4(d) of the
Federal Rules of Civfl Procedure(reference(e)). Service is complete
upon receipt
2. Proof of service, stating the name and address of the person on
whom the complaint was served, and the manner and date of service
may be made by the following:
(a) a. Affidavit of the individual serving the complaint by
delivery;
(b) A UnitedStates Postal Service retum receipt cardacknowledging receipt or
(c) Written acknowledgement of receipt by the defendant orhis
or her representative.
L Answer
y. The defendant may requestahearing by filing an answer with
the reviewing official within 30 days ofservice ofthe complaint An
answer shall be deemed to be a request for hearing.
2. In the answer, the defendant
(a) Shafladmfl or deny eachof the allegations of liability made
in the complaint;
(b) Shafl state any defense on which the defendant intends to
rely;
(c) May stateany reasons why thedefendant contends that the
pealties and assessments should be less than the statutory maximum;
and
(d) Shafl state thename, address, and telephonenumberof the
person authorized by the defendant to act as defendant's representative, if any.
.J. Ifthe defendant is unable to file an answer meeting the requirements ofparagraph2.b ofthis section within the time provided,
the defendant may, before the expiration of 30 days from service of
the complaint file with the reviewing official a general answer
denying liability and requesting a hearing, and a request for an
extension of time within which to file an answer meeting the requirements of subsection 2. ofthis section. The reviewing official
shafl, in such event tfl^ promptly with the presiding officer the
complaintthegeneral answer denying liability, and therequest for

an extension oftime as provided in section K., below. For good
cause shown, thepresiding officermay grant thedefendant additional time within which tofile an answer meeting the requirements
of subsection 2. of this section.
^. The 30-day limitation for filing an answer may be tolled fora
reasonable periodof timebywrittenagreementofthepartiesand
approval ofthe authority head to allow time for settlement
J. Default u p o n f a i l u r e t o f i l e a n answer
y. If the defendant does not file an answer withinthetime prescribedinsubsectionLL, above,andthereisnoapproved written
agreement asin subsection 1.4.,above,tollingthetime prescribed,
the reviewing official may then refer the complaint to the presiding
officer.
2. Upon refenal of the complaint pursuant to this section, the
presidingofficershaflpromptly serve ondefendant in themanner
prescribed in section H.,above,anotice that an initial decision wifl
be issued under this section.
^. Upon refenal ofthe complaint pursuant to this section, the
presidingofficer shafl assume thefacts alleged in the complaint to
be tme and, if such facts establish liability under section C, above,
thepresidingofficer shafl issueaninitialdecisionimposing penalties and assessments under the statute.
^. Except as otherwise provided in this section, by failing tofile
atimely answer, the defendant waives any right to further review of
thepenalties and assessments imposedunder subsection 3. ofthis
section, and the initial decision shafl become final and binding upon
the parties 30 days after it is issued.
If, before such an initial decision becomesfinaLthe defendant
files amotion with thepresidingofficer seeking to reopen onthe
grounds that good cause prevented the defendant from filing an
answer, the initial decision shafl be stayed pendingthe presiding
officer's decision on the motion.
^. I f o n amotionbroughtundersubsectionj.5.,above, thedefendant can demonstrate good cause excusing the failure to file a
timely answer,the presidingofficer shafl withdraw theinitialdecision in subsection 3. of this section ifsuch a decision has been
issued,and shaflgrant the defendant anopportunity to answer the
complaint
^. Adecision of the presiding officer denyingadefendant'smotion under subsections 5. and 6. ofthis section is not subjectto
reconsideration under section LL., below.
^. Thedefendantmay appeal tothe authorityhead the decision
denying a motion to reopen by filing anotice of appeal with the
authorityhead within 15 days after the presidingofficer deniesthe
motion.The timely filing ofanotice of appeal shaflstay theinitial
decision untfl the authority head decides the issue.
^. If the defendant filesatimely notice of appeal with the authority head, the presiding officer shafl forward the record of the
proceeding to the authority head.
y(^. The authority headshafl decide expeditiously whether good
cause excused the defendant'sfailuretofileatimely answer based
solely on the record before the presiding officer.
If the authority head decides that good cause excused the
defendant'sfailuretofileatimelyanswer,the authority headshafl
remand thecase to the presidingofficer with instmctions togrant
the defendant an opportunity to answer.
y2. Iftheauthorityheaddccidesthat thedefendant's failure to
fileatimely answer is not excused, the authority head shafl approve
the initial decision of the presiding officer,which shafl become final
and binding upon the parties 30 days after the authority head issues
such decision.
1^. Referral of complaint and answer to the presiding
officer
y. Upon receipt of an answer, the reviewing official shafl file the
complaint and answer with the presiding officer.
2. Toallow time for settlement refenalof complaint and answer
tothepresidingofficer may be delayed forareasonable periodof

AR 27-40 • 19 September 1994

45

33740

time if thereisawritten agreement of the parties,approved by the
authorityhead, in favor of such delay.
L. I^otice of hearing
y. When the presiding officer receives the complaint and answer,
the presiding officer shafl promptly serveanotice of hearing upon
the defendant in the manner prescribed by section H., above. At the
same time, the presiding officer shafl sendacopy of such notice to
the representative forthe Govemment
2. Such notice shafl include.
(a) Thetentativetimeandplace,andthenatureofthehearing;
(b) The legal authority and jurisdiction under which the hearing
is tobe held;
(c) . The matters offact and law to be asserted;
(d) A description of the procedures for the conduct of the
hearing;
(e) The name, address, and telephone number of the representa
tive of the Government the defendant and other parties, if any; and
(f) Such other matters as the presiding officer deems appropriate.
1^. Parties tothehearing
The parties to the hearing shafl be the defendant and the authority.
The reviewing official of each authority shafl,wifli the concurrence
of the DoD Component head, designate attomeys within that authority to represent the authority in hearings conducted under this Directive. Attomeys appointedas authority representatives shafl remain
underthe supervisionof their DoD Component
1^. Separation of functions
y. The investigatingofficial and the reviewingofficiaL forany
particular case or factually related case.may not dothefollowing;
(a) Participate in the hearing as the presiding officer;
(b) Participateor advise inthe initial decision orthereviewof
the initialdecision by the authorityhead, except asawitness ora
representative inapublic proceeding; or
(c) Make thecollecting of penalties andassessments under 31
USC^3806 (reference (c)).
2. The presiding officer shafl not be responsible to, or subject to
the supervision or direction of, the investigating official or the
reviewing officiaL
Except as provided in subsection L o f this section,the representative for the Govemment may be employed anywhere in the
authority, including in the offices of either the investigating official
or the reviewing officiaL
0. Expartecontacts
No party or person (except employees of the presiding officer's
office) shaflcommunicatein any way withthe presiding officer on
any matter at issue in a case unless on notice and there is an
opportunity for afl parties to participate. This provision does not
prohibitaperson or party fiominquiring about the status ofacase
or asking routinequestions concerning administrative functions or
procedures.
P. Disqualification of presiding officer and reviewing
official
y. Areviewingofficialor presidingofficer inaparticularcase
may disqualify himself or herself at any time.
2. Aparty may fileamotion for disqualification of the presiding
officer or the reviewing officiaLSuchmotion,to be filed with the
presiding officer, shafl be accompanied by an affidavit alleging
personal bias or other reason for disqualification.
Such motion and affidavit shafl be filed promptly upon the
party'sdiscovery of reasons requiring disqualification or such objections shafl be deemed waived.
^. Such affidavit shafl state specific facts that support the party's
belief that personalbias or other reason for disqualification exists
and the time and circumstances of the party's discovery ofsuch
facts. It shaflbe accompaniedbyacertificate of therepresentative
of record that it is made in good faith.
5. Upon the filing of suchamotion and affidavit,the presiding

46

officer shafl proceed nofiirther in the case untfl he or she resolves
the matter ofdisqualification by taking one ofthe following actions:
(a) If the presiding officer determines thatareviewing official is
disqua1ified,the presiding officer shafl dismiss the complaint without prejudice;
(b) If the presiding officer disqualifies himself or herself, the case
shafl be reassignedpromptly to another presiding officer;
(c) The presiding officer may deny a motion to disqualify. In
such event the authority head may determine the matter only as part
ofhis or her review ofthe initial decision upon appeaL ifany.
0. Rights ofparties
Except as otherwise limitedby this enclosure, afl parties may:
y. Be accompanied, represented, and advised byarepresentative;
2. Participate in any conference heldby the presiding officer;
Conduct discovery.
^. Agree to stipulations of fact or law,which shafl be made part
ofthe record;
5. Present evidence relevant tothe issues at the hearing;
^. Present and cross-examine witnesses;
B. Present oral arguments at the hearing, as permitted by the
presiding officer; and
^. Submit writtenbriefsandproposedfindings of fact andconclusions of lawafter the hearing.
R.Authorityof thepresidingofficer
y. Thepresidingofficer shaflconductafairandimpartialhearing, avoiddelay, maintain order, and assure thata recordof the
proceeding is made.
2. The presiding officer has the authorityto do the following:
(a) Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
(b) Continue or recess the hearing in whole or in part for a
reasonable period oftime;
(c) Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
(d) Administer oaths and affirmations;
(e) Issue subpoenas requiring the attendance of witnesses and the
production ofdocuments at depositions or at hearings;
(f) Rule on motions and other procedural matters;
(g) Regulate the scope and timing ofdiscovery;
(h) Regulate the course of the hearing and the conduct of representatives and parties;
(i) Examine witnesses;
(j) Receive, rule on, exclude, or limit evidence;
(k) Upon motion of a party, take official notice of facts;
(I) Upon motion ofaparty,decide cases, inwhole or in part by
summary judgment where there is no disputed issue of material fact
(m) Conduct any conference, argument or hearing on motions in
person or by telephone; and
(n) Exercise such other authority as is necessary to carry out the
responsibilities ofthe presiding officer under this Directive.
The presiding officer does not have the authority tofind Federal statutes or regulations invalid.
S. Prehearing conferences
y. The presiding officer may schedule prehearing conferences as
appropriate.
2. Upon the motion of any party, the presiding officer shafl
schedule at least one prehearing conference atareasonabletimein
advance ofthe hearing.
Thepresidingofficer may use prehearing conferencesto discuss the following:
(a) Simplification of the issues;
(b) The necessity or desirability of amendments to the pleadings,
including the need for a more definite statement
(c) Stipulations and admissions of fact or astothecontentsand
authenticity of documents;
(d) Whether the parties can agree to submission of the case ona
stipulatedrecord;

AR 27-40 • 19 September 1994

33741

(e) Whether a party chooses to waive appearance at an oral
hearing and to submit only documentary evidence (subject to the
objections of other parties) and written argument;
(f) Limitationof the numberof witnesses;
(g) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(h) Discovery;
(i) The time and place forthe hearing; and
(^) Suchother matters as may tendtoexpeditethefairandjust
disposition of the proceedings.
^. The presiding officer may issue an order containing afl matters
agreed upon by the parties or ordered by the presiding officer ata
pre-hearing conference.
T. Disclosureof documents
y. Upon written requestto thereviewingofficiaL thedefendant
may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the
complaint and upon which the findings and conclusions of the
investigating official under subsection D.2., above, are based, unless
such documents are subject toaprivilege under Federal law.Upon
payment of fees for duplication, the defendant may obtain copies of
such documents.
2. Upon written requesttothe reviewingofficiaL thedefendant
also may obtainacopy of afl exculpatory information in the possession of the reviewing official or investigating official relating to the
allegations inthecomplainteven if it iscontainedinadocument
thatwouldotherwisebeprivileged. Ifthedocumentwouldotherwisebeprivileged,only thatportioncontainingexculpatory information mustbedisclosed, except if disclosure would violate Rule
6(e) ofthe Federal Rules ofCriminal Procedure (reference (d)).
Thenotice sentto the Attomey General fromthereviewing
official as described in section E., above, is not discoverable under
any circumstances.
^. The defendant may fileamotiontocompeldisclosure of the
documents subject to the provisions of this section at any time afier
service of the complaint
U. Discovery
y. The following types of discovery are authorized;
(a) Requests for production of documents for inspection and
copying;
(b) Requests for admissions of theauthenticity of any relevant
document or of the tmth of any relevant fact
(c) Written interrogatories; and
(d) Depositions.
2. For the purpose of this section and sectionsV.andW.,below,
theterm"documents"includes information,documents,reports,answers, records, accounts, papers, and other data anddocumentary
evidence contained in a form contemplated by the definition of
"document'set forth in the Federal Rules of Civfl Procedure, Rule
34 (reference(e)).Nothingcontainedhereinshaflbe interpreted to
require the creation of a document
^. Unless mutually agreed to by the parties, discovery is available
only as ordered by the presiding officer.The presiding officer shafl
regulate the timing of discovery.
^. Motionsfor discovery may befiledwiththe presiding officer
by theparty seeking discovery.
(a) Such a motion shafl be accompanied by a copy ofthe requesteddiscovery,or inthe case ofdepositions,asummary ofthe
scope ofthe proposed deposition.
(b) Within 10daysofservice,apartymay fileanoppositionto
the motion andBor a motion for protective order as provided in
sectionX., below.
(c) The presiding officer may grantamotion for discovery only
i f h e finds thatthe discovery sought
(y^ Isneeessary for the expeditious, fair,and reasonable consideration ofthe issues;
(2) Is not unduly costly or burdensome;
(.^^ Wifl notunduly delay theproceeding; and

(^^ Does not seek privileged information.
(d) Theburdenofshowing that discovery shouldbe allowedis
on the party seeking discovery.
(e) The presiding officermay grantdiscoverysubjecttoaprotec
tive order under section X., below.
5. D^^o.^^7^0^.^
(a) If a motion for deposition is granted, the presiding officer
shafl issue a subpoena for the deponent which may require the
deponent to produce documents. The subpoena shafl specify the
time and place at which the deposition will be held.The presiding
officermay order that partiesproducedeponentsandyor documents
without the need for subpoena.
(b) The party seeking to depose shafl serve the subpoena inthe
manner prescribed in section H., above.
(c) The deponent may file with the presiding officeramotion to
quash the subpoenaor amotion foraprotective order within 10
days of service.
(d) The party seeking to depose shafl provide for the taking ofa
verbatim transcript of the deposition,which it shafl make available
to afl parties for inspection and copying.
1^. Eachparty shafl bear its own costs of discovery.
y. Exchangeof witness lists, statements, andexhibits
y. At least 15daysbeforethehearingor at suchother time as
may be ordered by the presiding officer,the parties shaflexchange
witnesslists,copies of prior statements of proposed witnesses, and
copies of proposed hearing exhibits, including copies of any written
statements that the party intends to offer in lieu of live testimony in
accordance with subsection GG.2., below. At the time the above
documents are exchanged, any party that intends torely upon the
transcript of deposition testimony in lieu of live testimony atthe
hearing, if permitted by the presiding officer, shafl provide each
party withacopy of the specific pages of the transcript it intends to
introduce into evidence.
2. If aparty objects, the presiding officer shafl not admit into
evidence the testimony of any witness whose name does not appear
on the witness list or any exhibit not provided to the opposing party
as provided above unless the presiding officer findsgoodcausefor
the failure or that there is no prejudice to the objecting party.
Unless another party objects within the time set by the presidingofficer,documents exchanged in accordancewith subsection 1.
of this section shaflbe admitted into evidence at the hearing.Later
challenges to admissibility at the hearing shafl be pennitted only
upon a showing of good cause for the lateness.
W. Subpoenasforattendanceat hearing
y. Aparty wishing to procure the appearance and testimony of
any individual at thehearing may request that the presiding officer
issuea subpoena.
2. Asubpoena requiring the attendence and testimony of an individual may alsorequiretheindividualtoproduce documents at the
hearing.
Aparty seekingasubpoena shafl fileawritten request therefor
notlessthen 15daysbeforethedatefixedforthehearing,unless
otherwiseallowedby the presidingofficer forgoodcauseshown.
Such request shafl specify anydocuments tobe produced and shafl
designate the witnesses and describe the address and location
thereof with sufficient particularity topermit such witnesses tobe
found.
^. The subpoena shafl specify the time and place at which the
witness is toappear and any documents the witness istoproduce.
The party seekingthesubpoenashafl serve it in the manner
prescribed in section H.,above. Asubpoena onapartyor upon an
individual under the controlofaparty may be served by first class
mail
1^. A party or a representative of the individual to whom the
subpoena is directed may file with the presiding officeramotion to
quash the subpoena within lOdays afier service or on or before the
time specified inthe subpoena for complianceif it isless than 10
days after service.

AR 27-40 ^19 September 1994

47

33742

^. ProtectiveOrder
y. Apartyoraprospectivewitnessor deponent may fileamotionforaprotectiveorderwithrespect todiscovery sought by an
opposing party or with respect tothehearing, seeking tolimit the
availability or disclosure of evidence.
2. In issuingaprotective order, the presiding officer many make
any order that justice requires to protect a party or person from
annoyance, embanassment, oppression,or undue burden or expense
including one or more of the following:
(a) Thatthe discovery not be had;
(b) That the discovery may behadonlyonspecifiedtermsand
conditions, including adesignation ofthe time or place;
(c) That the discovery may be had only through a method of
discovery other than that requested;
(d) d.That classified information not be released unless prior
notice and arrangements reasonably acceptable to the representative
of the authority are made incoordination with theDefense Investigative Service, and the presiding officer agreesto theuse;
(e) That certain matters not be inquired into or that the scope of
discovery be limited to certain matters;
(f) Thatdiscoverybeconductedwithnopersonexceptpersons
designated by the presiding officer;
(g) That the contents ofdiscovery or evidence be sealed;
(h) That the defendantcomplywith32CFR Part 97(reference
(f)) conceming official witnesses;
(i) That a deposition afier being sealed be opened only upon
order ofthe presiding officer;
(i) That a trade secret or other confidential research, development conunercial information, or facts pertaining to any criminal
investigation, proceeding, or other administrative investigation not
be disclosed or be disclosed only in a designated way; or
(k) That theparties simultaneously file specified documents of
informationenclosedinsealedenvelopestobeopenedas directed
by thepresidingofficer.
y.Fees.
Theparty requestingasubpoenashaflpaythecostof the witness
fees and mileage of any witness subpoenaed in the amounts that
would be payable toawitness inaproceeding in the United States
DistrictCourt. Acheck for witnessfees and mileage shaflaccompany the subpoena when served, except that when a subpoena is
issued on behalf of the authority a check for witness fees and
mileage neednot accompany the subpoena.

^. Form,filing, and serviceof papers
y. y^o^^
(a) Documents filed with the presiding officer shafl include an
original and two copies.
(b) Every pleading and paper filed in the proceeding shafl contain
a caption setting forth the title of the action, the case number
assignedby the presiding officer, and a designation ofthe paper
(e.g., motion to quash subpoena).
(c) Every pleading andpaper shaflbesignedby,and shallcontain the address and telephone number of, the party or the person on
whose behalf the paper was filed, orhis or her representative.
(d) Papers are considered filed when they are mailed. Date of
mafling may be established by a certificate from the party or its
representative or by proof that the document was sent by certified or
registered maiL
2.
Aparty filingadocument withthe presidingofficer
shafl, at the time of filing, serveacopy of such document on every
other party. Service upon any party of any document other than
those required to be served as prescribed in section H., above, shafl
be made by deliveringacopy or by placingacopy of the document
in the United States maiL postage prepaid and addressed to the
party's last known address. Whenaparty is represented byarepresentative, service shafl be made upon such representative inlieu of
the actual party.

48

y^^o^^.:^^^^7^^. A certificate ofthe individual serving the
document by personal delivery or by maiL setting forth the manner
of service, shafl be proof of service.
AA. Computatlonof time
y. In computing any period of time under this Directive or in an
order issued thereunder, the time begins with the day following the
act event or default and includes the last day of the period, unless
it isaSaturday,Sunday,or legal holiday observed by the Federal
Govemment in which event it includes the next business day.
2. When the period of time allowed is less than7days, intermediate Satirdays,Sundays,and1egalholidays observed by theFederal Govemment shafl be excluded fiom the computation.
.J. Whereadocument has been served or issued by placing it in
the maiL an additional5dayswiflbe added tothe time permitted
for any response.
BB.I^otions
y. Any application to the presiding officer for an order or mling
shafl be by motion. Motions shafl state the relief sought the authority relied upon, the facts alleged, and shafl be filed with the presiding officer and served on afl other parties.
2. Except for motions made duringaprehearing conference or at
thehearing, afl motionsshafl be in writing. Thepresidingofficer
may require the oral motions beput in writing.
^. Withinl5 days afierawritten motion is served, or such other
time as may be fixed by the presiding officer, any party may filea
response to such motion.
^. Thepresidingofficermaynotgranta written motionbefore
the timefor filing responses theretohas expired,except uponconsentofthepartiesorfollowingahearingonthemotion,butmay
overmie or deny such motion without awaiting a response.
5. The presiding officer shafl makeareasonable effort to dispose
of afl outstanding motions priorto the beginning ofthe hearing.
1^. Failure byaparty toraise defenses or objections or tomake
requests that must be made prior to the beginning ofthe hearing
shaflconstitute waiver thereofbut the presidingofficer maygrant
relief from the waiver for good cause shown.
CC. Sanctions
y. The presiding officermay sanction a person, including any
party or representative, forthe following:
(a) Failing to comply with an order, mle, or procedure governing
the proceeding;
(b) Failing to prosecute or defendan action; or
(c) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the hearing.
2. Any such sanction,including but not limited to those listed in
subsections 3.,4.,and 5. of thissection,shafl reasonably relateto
the severity and nature of the failure or misconduct
Whenaparty fails to comply with an order, including an order
for takingadeposition,theproductionofevidence withintbe party's controLorarequest for admission, the presidingofficer may:
(a) Draw an inference in favor ofthe requesting party with regard
to the information sought
(b) In the case of requests for admission, deem each matterof
which an admission is requested to be admitted;
(c) Prohibit the party failing to comply with such order from
introducingevidenceconcerning, orotherwise relyingupon, testimony relating to the infonnation sought and
(d) Strike any part ofthe pleadings or other submission ofthe
party failing to complywith such request
^. If a party fails to prosecute or defend an action under this
Directive commenced by service ofanotice of hearing,the presidingofficer may dismissthe actionor may issueaninitialdecision
imposing penalties and assessments.
5. The presidingofficer may refuseto consider any motion,request response, brief, or other document that is not filed inatimely
fashion.

AR 27-40 • 19 September 1994

33743

DD.The hearing and burden o f p r o o f
y. The presiding officer shaflconductahearingon the record in
order to determine whether the defendant is liable foracivfl penalty
or assessment under sectionC, above, and, ifso, theappropriate
amount of any such civfl penalty or assessment considering any
aggravatingor mitigating factors.
2. Theauthorityshaflprovedefendant'sliability andany aggravating factors by a preponderance ofthe evidence.
The defendant shafl prove any affirmative defenses andany
mitigating factors by a preponderance of the evidence.
^. Thehearing shafl be open to thepublicunless otherwiseorderedby the presiding officer for good cause shown.
EE. Determining the amount of penalties and
assessments.
In determining an appro riate amount of civflpenalties and assess
ments, the presiding officer and the authority head, upon appeaL
should evaluate any circumstances that mitigate or aggravate the
violation and should articulate in their opinions the reasons that
support the penalties and assessments they impose.
^F. Location of hearing
y. The hearing may be held as follows:
(a) In any judicial district of the United States in which the
defendant resides or transacts business;
(b) In any judicial district ofthe United States in which the claim
or statement at issue was made; or
(c) In such other place, including foreign countries, as may be
agreedupon by the defendant and the presiding officer.
2. Each party shafl have the opportunity to petition the presiding
officer with respectto the location ofthe hearing.
The hearing shafl be held at the place and at the time ordered
by the presiding officer.
GG. Witnesses
y. Except as provided in subsection 2.of this section,testimony
at the hearing shafl be given orally by witnesses under oath or
affirmation.
2. At thediscretionof thepresiding officer, testimony may be
admitted in the form ofawritten or videotaped statement or deposition.Any such written or videotaped statement must be provided to
afl other parties along with the last known address of such witness,
inamanner whichallowssufficient time forother parties to subpoena such witness for deposition or cross-examination at the hearing. Prior written or videotaped statements of witnesses proposed to
testify at the hearings and depositiontranscripts shaflbe exchanged
as provided in subsection V.I., above.
The presiding officer shafl exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence
so as to:
(a) Make the intenogationandpresentationeffectivefor the ascertainment of the truth;
(b) Avoid needless consumption of time; and
(c) Protect witnesses fiom harassment or undue embanassment
^. Thepresidingofficer shaflpermit the parties to conduct such
cross-examination as may be required forafufl and true disclosure
ofthe facts.
At thediscretion ofthe presiding officer, a witness maybe
cross-examined on matters relevant to the proceeding without regard
to the scope ofhis or her direct examination.
^. Upon motion ofany party, the presiding officer shafl order
witnesses excluded sothat they cannot hear thetestimonyofother
witnesses.Thisrule doesnot authorizeexclusionof the following:
(a) A party who is an individual;
(b) Inthe case ofaparty that is not anindividuaLanofficer or
employee of the party appearing for the party asitsrepresentative,
or designated by the party's representative; or
(c) An individual whose presence is shown by a party to be
essential to the presentation of its case, including an individual

employed by the Govemment engaged in assisting flie representative
forthe Govemment

HH. Evidence
y. The presiding officer shafl determine the admissibility of
evidence.
2. Except asprovidedherein, the presidingofficer shafl not be
bound by tbeFederal Rules of Evidence (reference (g)). However,
the presiding officer may apply the Federal Rules of Evidence
where appropriate; e.g., to exclude unreliable evidence.
Thepresidingofficer shafl exclude irrelevant and immaterial
evidence.
^. Althoughrelevant,evidencemaybeexcludedifitsprobative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or by consideration of undue delay or
needless presentation of cumulative evidence.
Evidence shafl be excluded i f i t is privilegedunderFederal
law andthe holder of the privilege asserts it
1^. Evidence conceming offers of compromise or settlement shafl
beinadmissible tothe extent providedinRule 408 of tbeFederal
Rules ofEvidence (reference (g)).
^. Thepresidingofficer shaflpermit theparties to introducerebuttal witnesses and evidence.
^. Afl documents and other evidence offered or taken for the
record shafl be open to examination by afl parties, unless otherwise
ordered by the presiding officer pursuant to section X., above.
IL The record andfinding
y. The hearing wifl be recorded and transcribed.Transcripts may
be obtained following the hearing from the presiding officer at a
cost not to exceed the actual costof duplication.
2. The transcript of testimony, exhibits, and other evidence admitted at the hearing, and afl papers and requests filed in the
proceeding constitute therecord for thedecisionby thepresiding
officer and the authority head.
The record may beinspected and copied (uponpayment ofa
reasonablefee) by anyone,unless otherwise ordered by the presiding officer.
^. Funding for the hearing and record, except for the cost of the
presiding officer, shafl be the responsibility of the authority in
which the casearose.
JJ. Post-hearing briefs
The presiding officer may require or permit the parties to file posthearing briefs.The presiding officer shaflfixthe time for filing any
such briefs, not to exceed 60 days from the date the parties receive
thetranscriptofthehearingor, ifapplicable, the stipulated record.
Suchbriefs may be accompanied by proposedfindingsof fact and
conclusions of law.The presidingofficer may permit the parties to
file reply briefs.
1^1^. Initial decision
y. The presiding officer shafl issue an initial decision based only
on the record that shafl containfindingsoffact, conclusions oflaw,
and the amount of any penalties and assessments imposed.
2. The findings offact shafl include a finding on each ofthe
following issues:
(a) Whether the claims or statements identified in the complaint,
or any portions thereof, violate section C, above; and
(b) If the person is liable for penalties or assessments, the appropriate amount of any such penalties or assessments.
Thepresidingofficer shaflpromptlyservetheinitialdecision
onallparties within90 days after the timefor submission of posthearingbriefs and reply briefs (if permitted)hasexpired.The presidingofficer shafl atthesametime serveaflparties witbastatement describing theright ofany defendant determinedtobeliable
foracivfl penalty or assessment to fileamotion for reconsideration
with thepresidingofficerora noticeof appeal with the authority
head.lf the presiding officer fails to meet the deadline contained in
thissubsection,heorsheshafl noflfy thepartiesofthereasonfor
the delay andshafl seta new deadline.

AR 27-40 • 19 September 1994

49

33744

^. Unless the initial decision ofthe presiding officer is timely
appealedtothe authority head,oramotionforreconsiderationof
the intitial decision is timely filed, the initial decision of the presiding officer shafl be final and binding on the parties 30 days after it
is issuedby the presiding officer.
LL. Reconsideration of initial decision
y. Except as provided in subsection 4.of this section, any party
may fileamotionforreconsiderationoftheinitialdecision within
20 days of service of the initial decision in the manner set forth in
section H., above, for service of the complaint Service shafl be
proved in the manner provided in subsection H.2., above.
2. Every such motion must set forth the matters claimed to have
been enoneously decided and the nature of the alleged enors. Such
motion shafl be accompanied by a supportingbrief
Responses to such motions shafl be allowed only upon request
of the presiding officer; however, the presiding officer shafl not
issuearevisedinitialdetermination without affordingboth parties
an opportunity to be heard on the motion for reconsideration.
^. No party may file a motion for reconsideration of an initial
decisionthat has been revised in response toaprevious motionfor
reconsideration.
5. The presiding officer may dispose ofamotion for reconsiderationby denying it or by issuing a revised initial decision.
^. If the presiding officer deniesamotion for reconsideration,the
Initial decision shafl constitute the final decision ofthe authority
head and shafl be final and binding on the parties 30 days afier the
presiding officer denies the motion, unless the initial decision is
timely appealed to the authority head in accordance with section
MM., below.
^. If thepresidingofficer issues a revised initial decision, that
decision shafl constitute the final decision of the authority head and
shaflbefinaland binding onthe parties 30 days afier it isissued,
unless it is timely appealed to the authority head in accordance with
section MM., below.
1^1^. Appeal toauthority head
y. Any defendant who has filed a timely answer and who is
determinedinan initialdecisiontobeliableforacivflpenalty or
assessment may appeal such decision to the authority head by filing
anotice of appeal withthe authorityhead in accordance withthis
section.
2. A notice of appeaL
(a) May befiled at any time within 30 days afier the presiding
officer issues an initial orarevised initial decision.If another party
filesamotion for reconsideration under section LL.,above,consideration of the appeal shafl be stayed automatically pending resolution of the motion for reconsideration, untfl the time period for
filinga motion for reconsideration under section LL., above, has
expiredor the motion is resolved;
(b) If amotion for reconsideration is timely filed, a notice of
appeal may be filed within 30 days afier the presiding officer denies
themotionor issuesa revised initial decision, whichever applies;
(c) The authority head may extendthe initial30-dayperiodfor
an additional 30 days if the defendant files with the authority heada
request for an extensionwithintheinitial30-day period and shows
goodcause.
If the defendant filesatimely notice of appeal with the author
ity head, the presiding officer shafl forward the record of the
proceeding to the authority head when:
(a) The time for filingamotion for reconsideration expires without the filing of such a motion, or
(b) The motion for reconsideration isdenied. Issuranceofarevisedinitialdecisionupon motionfor reconsideration shaflrequire
filing of a new notice of appeaL
^. A noticeof appeal shafl be accompaniedby a writtenbrief
specifyingexceptionstotheinitialdecision and reasons supporting
the exceptions.
The representative for the Govemment may file a brief in

50

oppositiontothe exceptions within 30 days of receiving the notice
of appeal and accompanying brief
1^. There is no right to appear personally before the authority
head, although the authority head may at his or her discretion
require the parties to appear for an oral hearing on appeaL
B^. There is no right to appeal any interlocutory mling by the
presiding officer.
^. Inreviewingthe initialdecision, the authority head shaflnot
consider any objection that was not raised before the presiding
officer, unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection.
^. Ifany party demonstratesto the satisfactionof theautbority
head that additional evidence not presented at such hearing is material and that there were reasonable grounds for the failure to present
suchevidence at such hearing,theauthority head shaflremandthe
matter tothepresidingofficer forconsiderationofsuchadditional
evidence.
y(^. The authority head may affirm, reduce, reverse, compromise,
remand, or settle any penalty or assessment detennined by the presiding officer in any initial decision.
yy. The authority head shafl promptly serve each party to the
appeal with a copy of the decision of the authority head and a
statement describing the right of any person determined to be liable
fora penalty or assessment to seekjudicial review.
y2. Unlessapetition for review is filed as provided in 32U.S.C.
^3805 (reference (h))afleradefendant has exhausted afl administrative remedies under this Directive and within 60 days after the date
on which the authority head serves the defendant withacopy of the
authority head's decision,adeterminationthatadefendantisliable
under sectionC,above, is final and is not subject to judicial review.
y^. The authority heads (or their designees) may designate an
officer or employee of the authority,who is serving in the grade of
GS-17 or above under the General Schedule, or in the Senior
Executive Service, to carry out these appellate responsibilities; however, the authority to compromise, settle, or otherwise discretionarily dispose of the case on appeal provided pursuant to
subsection MM.10, hereof, may not be so redelegatedpursuant to
this subsection.

1^1^. Staysordered by theOeparfmentof Justice
If at any time,the Attorney Generalor an Assistant Attorney General designatedby the Attorney General transmits to the authority
headawrittenfinding that continuationof the administrativeprocess described inthis Directive with respect toaclaim or statement
may adversely affect any pending or potential criminal or civfl
action relatedto such claim or statement theauthority head shafl
stay the process immediately. The authority head may order the
process resumedonly upon receipt of the written authorizationof
the Attorney GeneraL

00. Stay pending appeal
y. An initial decision is stayed automatically pendingdisposition
of a motion for reconsideration or of an appeal to the authority
head.
2. Noadministrativestay isavailablefollowingafinaldecision
ofthe authority head.
PP. Judicial review
31 U.S.C ^ 3805 (reference (c)) authorizesjudicial reviewby an
appropriate United States DistrictCourt o f a final decision ofthe
authority head imposing penalties or assessment under this Directive
andspeeifies the procedures for such review.

00. Collection of civfl penalties and assessments
31 u s e . ^^3806 and 3808(b)(reference(c)) authorize actions for
collection of civfl penalties and assessments imposed under this
Directive and specify the procedures for such actions.

RR. Right toadministrativeoffset
The amount of any penalty or assessment that has becomefinaLor
for whichajudgment has been entered under section QQ.,above, or

AR 27-40 • 19 September 1994

33745

any amount agreed upon inacompromise or settlement under sectionTT.,below,may be collected by administrative offset under31
U.S.C. ^3716 (reference (c)), except that an administrative offset
may not be made under this section againstarefund of an overpayment of Federal taxes then or later owing by the United States to the
defendant
SS. Deposit InTreasury of United States
Aflamounts collected pursuant tothisDirective shaflbe deposited
as miscellaneous receiptsintheTreasuryof theUnited States,except as provided in 31 U.S.C. ^3806(g) (reference (c)).
TT. Compromiseorsetflement
y. Parties may make offers ofcompromise or settlement at any
time.
2. The reviewingofficialhastheexclusiveauthority tocompromise or settleacase under this Directive at any time afier the date
on which the reviewing officer is permitted to issueacomplaint and
before the date on which the presiding officer issues an initial
decision.
The authority head has exclusive authority to compromise or
settleacase under this Directive at any time after the date on which
the presiding officer issues an initial decision, except during the
pendency of any review under section PP., above, or during the
pendency of any action to collect penalties as assessments under
section QQ., above.
^. The Attomey General hasexclusive authorityto compromise
or settle a case underthis Directive during the pendency of any
review under section PP.,above,ofanyactiontorecover penalties
and assessments under 31 U.S.C. ^3806 (reference (c)).
Theinvestigatingofficial may recommend settlement terms to
the reviewing officialor the Attomey GeneraL as appropriate.The
reviewing official may recommend settlement terms to the Attorney
GeneraL as appropriate.
^. Any compromise or settlement must be in writing.
UU. Limitations
y. The notice of hearing with respectto a claim or settlement
must be served in the manner specified in section H.,above,within
6years afier thedateonwhichsuch claim or statement is made.
2. If the defendant fails to file a timely answer, service of a
notice under subsection J.2., above, shafl be deemed a notice of
hearing fbr purposes ofthis section.
If at any time during the courseof proceedingsbrought pursuant tothis section,theauthority headreceives ordiscovers any
specific information concerning bribery, gratuities,confiict of interest, or other cormption or similar activity in relation toafalse claim
or statement the authority head shafl immediately report such information to the Attorney General andto thelnspector GeneraL Department ofDefense.
Delegations
The General Counsel for the Department of Defense is designated to
carry out the responsibilities ofthe authority head ofthe Department
of Defense for the issuance of additional implementing regulations
that are necessary to implement PFCRA (reference (a)) and this
Directive to decide cases upon appeaL ^nd to hire or designate
employees of the Department of Defense to decide cases on appeaL
The General CounseL Department of Defense, is also designated to
appoint presiding officersfor theDepartment of Defense, and may
assist inthe appointment of presidingofficersondetaflfromother
Agencies fbr afl authorities within the DepartmentofDefense.

AR 27-40 • 19 September 1994

51

33746

glossary

GAD

USMA

SectionI
Abbreviations

General AccountingOffico

United States Military Academy

AAFES

HQDA
Headquarters, Department of the Army

Army and Air Force Exchange Service

USC
United States Code
Section II

An abbreviation for id est meaning "that is"

Terms

AMEDD

IG

Army Medical Department

Inspector General

AFARS
Army Federal Acquisition Regulation
Supplement
ASBCA

JA

Active Duty
Full-timeduty intheactivemilitary service
of the United States. Includes: fiill time training duty; annual training duty; active duty for
training; attendance,while in the active military service, ataschool designated asaService School by law or by the Secretary of the
military department concemed; and, attend
ance, whilein theactivemilitary service, at
advanced civfl schooling and training with
industry. It does not include fiill-time National Guard duty under title 32, United
States Code.

judge advocate
MACOM

Armed Services Board of Contract Appeals
major Army command
AUSA
MSPB
AssistantUnitedStates Attorney
Merit Systems ProtectiooBoard
CFR
NAF
Code ofFederal Regulations
nonappropriated fiind
COE
UnitedStates Army Corps of Engineers
DA
Department ofthe Army
DFARS
Defense Federal Acquisition Regulation
Supplement
DOD
DepartmentofDefense

OTJAG
Office of The Judge Advocate General
OSC
Office of Special Counsel
PFA
Procurement Fraud Advisor
PFCRA

DOJ
Program Fraud Civfl Remedies Act
Department of Justice. In this regulation, reference to DOJ means either United States PFD
Attorneys'Offices orThe (main) Department
Procurement Fraud Division
ofJustice in Washington, D.C
DCIS
PFI
Defense Criminal Investigative Service
Procurement Fraud or Inegularities
e.g.
An abbreviationforexempfl gratia, meaning RJA
"forexample"
recoveryjudgeadvocate
et seq.
An abbreviation for et sequentes, meaning SAUSA
"and the following"
FAR
Special Assistant U.S. Attomey
Federal AcquisitiooRegulation
SJA
facsimile transmission
staffjudge advocate
FBI
TDY
Federal Bureau oflnvestigation
temporary duty
Fed.RCiv.P.
TJAG
Federal Rules of Civfl Procedure
Fed.R.Crim.P.

The Judge Advocate General

Federal Rules ofCriminal Procedure

UCMJ

FOIA
52

Uniform
Code ofMilitaryJustice
AR 27-40
^19 September 1994

Freedomof Information Act

USACIDC
U.S. Army Criminal InvestigationCommand
USALSA
U.S.
USARCS
USATDS
Army Legal
Trial
ClaimsDefense
Services
ServiceService
Agency

Army activities
Activitiesofor under the controlof the Ar-^
my,one of its instmmentalities, or the Army
National Guard, including activities for
which the Army has been designated the administrative agency, and those designated activities located in an area in which the Army
has been assigned single service claims responsibility by DOD directive.
Army property
Real or personal property of the United
States or its instmmentalities and, if the
United States is responsible therefore, real or
personal property of a foreign govemment
whichis inthe possessionorcontrol ofthe
Army, one of its instmmentalities, or the
ArmyNationalGuard,including property of
an activity for which the Army has been designatedtheadministrativeagency,andproperty located in an area in which the Army has
been assigned single service claims
responsibility.
Centralized orgaoizatioo
That organization o f a DOD component responsiblefor coordinating and monitoringof
criminaL civiL contractuaL and administrativeremedies relatingtocontract fraud. For
DOD components other than the Army, the
Centralizedorganizations are asfollows: the
Office of General CounseL Department of the
Air Force; the Office of thelnspector GeneraL Department of the Navy; and the Office of
GeneralCounseLDefenseLogistics Agency.
Claim
The Govemment's right to recover money or
property from any individuaL partnership, association, corporation, govemmental body,or
other legalentity (foreign and domestic) except an instmmentality of theUnited States.
A claim against several joint debtors or
tortfeasors arising from a single transaction
or incident wifl be considered one claim.
Claims officer
Acommissionedofficer, wanant officer, or

33747

qualified civilian employee designated by the
responsible commander and trained or experienced in the conduct of investigations and the
processingof claims.

attempts andconspiracies to effect such deception) for the purpose of inducing DOD
action or reliance on that deception. Such
practices include,butarenot limitedto, the
following:bid-rigging; making or submitting
Corruption
false statements; submissionof falseclaims;
Practices that inc1ude,but are not limitedto, use of false weights or measures; submission
so1icitation,offer,paymentor acceptance of of false testing certificates; adulterating or
bribes or gratuities; kickbacks; confiicts of substituting materials; or conspiring to use
interest; or unauthorized disclosure of official any ofthese devices.
infbrmation related to procurement matters.
Improper or Illegal Conduct
Couosel for coosultatioo
^. Aviolation of any law, rule,or regulaAnattomey,providedby DAatnoexpense tion in connection with Government
tothe soldier or civilianemployee,whowifl misconduct
provide legaladvice tothe witnessconcem^. Mismanagement ^ gross waste of
ing the authority of OSC, the nature of an funds, an abuse of authority,orasubstantia1
OSC interview and their individual rights and and specific danger to public health or safety.
obligations.Thecounselmay accompany the
witness tothe interviewandadvise the wit- loformatioo exempt from release to the
ness during theinterview.No attomey-client public
relationship is established in this procedure. Those categories of informationthat maybe
withheld fromthe public under one or more
Couosel for represeotatioo
provisions oflaw.
An attomey,provided byDA at no expense
to the soldier or civilian employee.who wifl Judge advocate
actas theindividual's lawyer inaflcontacts
with the MSPB and the OSC during the pen- An officer so designated (AR 27-1).
dancy of the OSCinvestigation and any subsequent OSC initiated action before the Legal adviser
MSPB. An attorney-client relationship wifl Acivilian attomey who is the principallegal
be established between the individual and adviser tothe commander or operating head
of any Army commander agency.
counsel for representation.
Litigatioo
Legal action or process involving civil
DA persoooel
proceedings, i.e., non- criminaL
DA personnel includes the following:
^. Military and civilian personnel of the
Active Army and The U.S. Army Reserve. Litigatioo io which the United States has
^. Soldiers ofthe Army National Guard of ao ioterest
^. Asuit in which the United States or one
the United States (title IO,USC)and,when
specified by statute or whereaFederalinter- of itsagenciesor instmmentalities hasbeen,
est is involved, soldiers in the Army National or probably wifl be, named as aparty.
^. Asuit against DApersonneland arises
Guard(title 32, USC). It also includes technioutoftbe individual's performanceof officians under 32 USC 709(a)(d)
cial duties.
cUSMA cadets.
^. A suit concerning an Army contract
^. Nonappropriated fund employees.
^. Foreign nationals whoperform services subcontract, or purchase order under the
terms of which the United States may be
for DA overseas.
7^ Other individuals hired by or for the required to reimburse the contractor for recoveries, fees, or costs of the litigation.
Army.
^. A suit involving administrative
proceedings before FederaL State, municipaL
Deharmeot
Administrative action taken by a debarring or foreigntribunalsor regulatory bodiesthat
authority to excludeacontractorfiomGov- mayhaveafinancial impact uponthe Army.
^. A suit affecting Army operations or
ernment contracting and Government approved subcontracting foraspecified period. which might require, limit or interfere with
official action.
Deciding Official
7^ Asuit in whichtheUnitedStateshasa
SJA,lega1adviser,orLitigation Division at- financial interest in the plaintiffs recovery.
tomey who makes the final determination
^. Foreign litigation in which the United
conceming release of official information.
States is bound by treaty or agreement to
ensure attendance by military personnel or
DODcrimioaliovestigatiooorgaoizatioos civilian employees.
Refers to theUSACIDC;theNaval1nves
tigative Service; the U.S. Air Force Office of Medical care
Special Investigations; and the Defense Crim- Includes hospitalization,outpatient treatment,
inal Investigative Service, Office ofthe In- dentalcare, nursing service, dmgs, and other
spector GeneraLDOD.
adjunctssuchasprosthesesandmedicalappliancesfiimishedbyorattheexpenseofthe
Eraud
United States.
Any intentional deception of DOD (including

AR 27-40 • 19 September 1994

Misdemeaoor
An offense for whichthe maximumpenalty
does not exceed imprisonment for 1 year.
Misdemeanors include those offenses categorized as petty offenses (18 USC 3559).
Official loformatioo
Afl information of any kind, however stored,
that isin the custody and controlof theDepartment ofDefense, relates to information in
the custody and control of the Department or
was acquiredby DoD personnel as part of
their officialdutiesorbecause of theirofficial status within theDepartment while such
personnelwere employed by or on behalf of
the Department or on active duty with the
United States Armed Forces.
Operating Forces
Those forces whoseprimarymissionsareto
participate in combat and the integral supporting elements thereof Within DA, the operating forces consist of tacticalunits organized
to conform to tables of organization and
equipment (TOE).
Persoooel Aetioo
These include—
^. Appointment
^. Promotion.
c. Adverse action under 5 USC 7501 et
seq. or other disciplinary or conective action.
^. DetaiL transfer, or reassignment
^. Reinstatement
7^ Restoration.
^. Reemployment
^. Performance evaluation under 5 USC
4301 et seq.
Decision conceming pay, benefits, or
awards, or conceming education or training if
theeducation ortrainingmay reasonably be
expected to lead to an appointment promotion, performance evaluation, or other personnel action.
7. Any other significant change in duties or
responsibilities that is inconsistent with the
employee's salary or grade leveL
Private Litigatioo
Litigation other than that in which the United
States has an interest
Process
The legal document that compelsadefendant
in an action to appear in court; e.g.,inacivfl
caseasummons or subpoena, or inacriminal
case, a warrant for arrest subpoena, or
summons.
Prohibited Persoooel Practice
Action taken, or the failure to take action, by
a person who has authority to take, direct
others to take, recommend, or approve any
personnel action—
^. That discriminates for or against any
employee or applicant for employment on the
basis of race, color, religion, sex, national
origin, age, handicapping condition, marital

53

33748

status, or political affiliation, as prohibited by
certain specified laws.
^. Tosolicit or consider any recommendation or statement oral or written,with respect
to any individual who requests, or isunder
consideration for, any personnel action, unless the recommendation or statement is
basedonthepersonalknowledgeor records
of the person furnishing i t and consists of an
evaluation ofthe work performance, ability,
aptitude, or general qualifications of the individuaL or an evaluation of the character,loyalty, or suitability of such individual.
^. To coerce the political activity of any
person (including the providing of any political contribution or service), or takeany action against any employee or applicant for
employment as a reprisal for the refiisal of
any person to engage in such political
activity.
^. To deceive or willfully obstruct any
person with respect to suchperson'sright to
compete for employment
^. To influence any person to withdraw
from competition for any position for the
purpose of improving or injuring the prospects of any other person for employment
7^ To grant any preference or advantage
ootauthorizedby law, m1e,orregulationto
any employee or applicant for employment
(including defining the scope or manner of
competition or the requirements for any position) for the purpose of improving or injuring
the prospects of any particular person for
employment
^. Toappoint employ,promote,advance,
or advocate for appointment employment
promotion,or advancement inortoacivilianposition any individual whoisarelative
(as defined in5USC3110) of the employee,
if the position isinthe agency inwhichthe
employee is serving as a public official or
over which the employee exercises jurisdiction orcontrol as an officiaL
y^. To takeorfafl to takeapersonnel action withrespect to any employee or applicant for employment asareprisal for beinga
whistleblower, as defined below.
Totake or fafl to takeapersonnel action
against an employee or applicant for employment as a reprisal for the exercise of any
appeal right granted by law, rule, or
regulation.
7. To discriminate for or against any employee or applicant for employment on the
basisof conductthat does not adversely affect theperformance of theemployeeor applicant orthe performance of others.
^. Totake or fafl to take any other personnelactionif the taking o f o r failure totake,
such action violates any law, mle, or regulation implementing, or directly conceming, the
merit systemprinciplescontainedin5 USC
230L

other political subdivision when theU.S.Attomey has declined to exercise jurisdiction
over a particular case or class of cases.
^. AnSJAofageneralcourt-martialconvening authority considering taking action
against a person subject to the UCMJ.
Recovery JA
A JAor legal adviser responsible for assertion andcollectionofclaimsinfavorof the
United States for property claimsand medical expenses.
Significant Case of FraudaodCorruptioo
A procurement fraud case involving an allegedlossof ^IOO,OOOormore;afl corruption cases related to procurement that involve
bribery, gratuities, or confiicts of interest;
any defective products or product substitution
in whichaserious hazard to health, safety or
operational readiness is indicated, regardless
of loss value; and, any procurement fraud
case that hasreceivedor is expected to receive significant mediacoverage.
Staffjudge advocate
An officer so designated (AR 27 1). Tho
SJAofaninstallation,acommandoragency
reporting directly to HQDA, or of a major
subordinate command of theU.S. ArmyMateriel Command, and the seniorArmyJA assigned to ajoint or unifiedcontmand.
Subpoena
Aprocess tocauseawitnesstoappear and
give testimony, e.g., at a triaL hearing, or
deposition.
Suspeosioo
Administrative actiontakenbyasuspending
authority to temporarily excludeacontractor
from Government contracting and Government-approved subcontracting.
Suspeosioo aod Debarment Authorities
Officials designated in DFARS, section 9.
403, as the authorized representative of the
Secretary concerned.
Tortfeasor
A wrongdoer; one who commits a tort

Section III
Special AbbreviationsandTerms
This section contains no entries.

Prosecutive Authorities
These include—
^. A U.S. Attomey.
^. A prosecuting attomey of a State or

54

AR 27-40 • 19 September 1994

33749

Index
This index is organized alphabetically by
topic and subtopic, which are identified by
paragraph number.
Ahhreviatioos, glossary
Addresses, appeodix B
Answer to complaint, figure 3-1
Appearaoce as eouoscL restrictioo, 1 6
Armed Services Board of Cootract Appeals (ASBCA) Appeal of Decisioos
From, 1-4
Army Geoeral Couosel, 1 ^
Assistaot Judge Advocate Geoeral for
Civil Law aod Litigatioo, The
Responsibilities, 1-4

Official loformatioo. See chapter7gooor^
ally
Origioals, maintaioiog, 7-4

Pateots, 1-4
Privacy A c t , 7 7
Private attoroeys
Assertionofmedicalcare claimsfor U.S.,
51
Employment of, 4-4, 4-5
Process, Chapter 2 geoerally
CiviL23,25
CriminaL 2-2, 2-4
Defined, 2-1
Procuremeot Fraud aod Corruptioo, See
chapter ^ generally
Civil Justice Reform, Executive OrderNo. Property claims, 5^2
1277^,5-1
Releaseof ioformatioo,SeeOfficialIoforClassified loformatioo, 3 1, 7 2,aod 7 7
matioo
Collectioo Act, Federal Claims, 5-1
Remedies ioProcuremeot Fraud aodCorCootractors, Goveromeot
ruptioo. See chapters
Reportiog requiremeots. See chapter 3
Litigation against requiring reporting, 3-7
geoerally
Request for representation byaDOJ attorToHQDA,31,38
ney, 3-7
Repossessioo
Copyrights, 1-4
Personal property, 2-3
Core ioformatioo
Realty, Government
Executive Order 12779 (Civfl Justice Refonn),39
DA Eorm 4 , 3 1 1 , figure32
Declaratioosuoderpeoaltyof perjury,
312
Delioqueot reot, collectioo of, 5 ^
Department of Justice
Contactwith DOJ, restriction, 1-5
Representation by, 4 3, 4 ^

Eoviroomeotal litigatioo. See chapter 6
generally
Eviction, 5-5
Federal Employees Reform aodTortCompeosatioo Act, 4^3
Federal Tort Claims Act, 4^3
Goozales Act, 4^3
Habeas corpus, 3 ^
lodemoificatioo for iodividual liability,
4^6
Iodividualliability,Seechapter4geoerally
loformatioo. See Official loformatioo
lospector Geoeral
Reports, release of, 7-2
lojuoctive relief
Reporting requirements, 3-5
Investigative Report, See Litigatioo Report

Secretary of The Army
Service Of Process, Acceptance of 2-7
Settlement of cases, 1-4
Special Couosel, Office of. See chapters
geoerally
Subpoeoas
ForOfficiallnformation, chapter7generally
Litigation in whichU.S.has interest7-12
Motion to stay or quash, 7-2
Temporary restraioiog order, 3-5
Third Party Collectioo Program, 5^1
Toxic torts, 6^2
Trademarks, 1 ^
Water rights, 6^2
Westfafl Act, 4^3
Witnesses
Army Medical Department PersonneL7-10
Experts, 7-10, and 7-13
Foreign tribunals, before, 7-17
Litigation in which U.S. has interest.
Private litigation, DA personnel in, 7-8
Travel expenses, 7-15, and 7-16

Jury duty, See chapter 10 generally
Litigatioo reports, 3 9
McCarrao Ameodmeot, 6-2
Media requests, 7 14
MedicalCareClaims,52
Medical Care Recovery Act, 5^1
Navigable waters, 6-2
Office of Special CouoseL chapter 9
Office of The Judge Advocate GeoeraL See
Judge Advocate GeneraL
AR 27-40 • 19 September 1994

55

33750

nclassified PIN 000303-000

33751

Army Regulation 27-40

Legal Services

Litigation

Headquarters
Department of the Army
Washington, DC
19 September 1994

Unclassified

33752

^^^^A^^^^^^A^^^
AR 27-40
Litigation
This r e v i s i o n - o

Devotes a separate chapter t o s e r v i c e o f process (chap 2 ) .

o

Replaces " i n v e s t i g a t i v e r e p o r t " w i t h " l i t i g a t i o n r e p o r t " r e f l e c t i n g c u r r e n t
usage (chap 3 ) .

o

Devotes a separate chapter t o i n d i v i d u a l l i a b i l i t y (chap 4 ) .

o

Treats environmental l i t i g a t i o n

o

Deletes coverage o f c r i m i n a l p r o s e c u t i o n s i n U.S. M a g i s t r a t e and D i s t r i c t
Courts (see AR 27-10).

o

Delegates more a u t h o r i t y t o t h e i n s t a l l a t i o n l e v e l t o determine r e l e a s e o f
i n f o r m a t i o n and appearance of witnesses (chap 7 ) .

o

Updatesprocedures t o o b t a i n r e l e a s e f r o m l o c a l o r S t a t e j u r y d u t y (chap 1 0 ) .

(chap 6 ) .

33753

"Army Regulation 27-40

Headquarters

Department of the Army
W a s h i n g t o n , DC
19 September 1994

Effective 19 October 1994
Legal Services

Litigation

By Order of the Secretary of tho Army;
GORDON R. SULLIVAN
General, United States Army
Chief ol Stall
Official:

^'^'^exL^
MILTON H. HAMILTON
Administrativa Assistant to the
Secretary ot the Army

History. This printing publishes a complete
revision of this Army regulation. Because the
publication has been revised extensively, the
changed portions have not been highlighted.
Summary. This regulation prescribes policy
and procedures for litigation in civilian court
proceedings, including the following; providing representation of the Amiy and its personnel in Federal and State court
proceedings; remedies for procurement fraud;
environmental litigation; bankruptcy; release
of information and appearance of witnesses

in criminal and civil court actions: procedures to follow when soldiers arc summoned
for jury duty; and, procedures for cooperation
with the Office of Special Coun.scl.
Applicability. This regulation applies to all
DA personnel (see glossary), including the
Active Army, the Army National Guard, and
the U.S. Army Reserve. This regulation applies during partial and full mobilization.
Proponent and exception authority.
The proponent ofthis regulation is The Judge
Advocate General. The proponent has the authority to approve exceptions to this regulation that arc consistent with controlling law
and regulation. Proponents may delegate the
approval authority, in writing, to a division
chief under their supervision within the proponent agency who holds the grade of colonel or the civilian equivalent
Army management control process.
This regulation is not subject to the requirements of AR 11-2. It does not contain internal control provisions.
Supplementation. Supplementation of this
regulation and establishment of command
and local forms are prohibited without prior

C o n t e n t s (Listed by paragraph and page number)

Chapter 1

General, page I
Purpose • I -l, ixige 1
References • 1-2, page I
Explanation of abbreviations and terms • 1 3, page I
Responsibilities • 1-^, page 1
Restriction on contact with DOJ • 15, page 2
Appearance as counsel • 1-6, page 2
Mailing addresses • 1-7, page 2
Chapter 2

Service of Process, page 2
General • 2-1, page 2
Service of criminal process within the United States • 2-2, pcign 2
Service of civil process within the United States • 2-3, page 2
Service of criminal process outside the United States • 2 4.
page i
Service of civil process outside the United States • 2-5, page .?
Assistance in serving process overseas • 2-6, page 3
Service of process on DA or the Secretary of the Army • 2-7,
page 3

approval from the Office of The Judge Advocate General, ATTN: Litigation Division
(DAJA-LT), 901 North Stuart Street, Arlington, VA 22203-1837.
Interim changes. Interim changes to this
regulation are not official unless authenticated by the Administrative Assistant to the
Secretary of the Army. Users will destroy
interim changes on their expiration dates unless sooner superseded or rescinded.
Suggested Improvements. Users arc invited to send comments and suggestions to
Office of The Judge Advocate General,
ATTN: Litigation Division (DAJA-LT), 901
North Stuart Street, Arlington, VA
22203 1837.
Distribution. Distribution of this publication is made in accordance with DA Form
12-09- E, block number 2040, intended for
command levels B,C,D, and E for Active Army, Army National Guard, and U.S. Amiy
Reserve.

Chapter 3
Reporting Legal Proceedings to Headquarters, Department
of the Army, page 3
General • 3-1, page 3
Individual and supervisory procedures upon commencement of
legal proceedings • .1-2, page 4
SJA or legal adviser procedures • 3-3. page 4
Litigation alleging individual liability • 3^, page 4
Injunctive relief • 3-5, page 4
Habeas Corpus • 3-6. page 4
Litigation against Government contractors • 3-7, page 4
Miscellaneous reporting requirements • 3-8. page 5
Litigation reports • 3 9, page 5
Preservation of evidence '3 10, page 6
DA Komi 4 • 3-11, page 6
Unswom declarations under penalty of perjury • 3-12, jiage 6
Chapter 4
Individual Liability, page 9
Scope ' 4-1, page 9
Policy • 4-2, page 9
Federal statutes and regulations • 4-3 /ji/gf 9
Procedures for obtaining certification
and DOJ representation
• 4-4, /Hige 9
Private counsel at Government expense
4 5, page 10

This regulation supersedes AR 27-40, 2 December 1987, and rescinds DA Form 2135, May 1973.

AR 2 7 - 4 0 • 19 September 1994

Unclassified

33754

Contents—Continued
Requesls for indemnification • 4-6, page 10
Chapter 5
Legal Proceedings

Initiated by the United States, page 12

Section I
Medical Care and Properly Claims, page 12
General • 5-1, page 12
Refenal of medical care and property claims for litigation • 5 2,
page 12
Preparation of claims for litigation • 5-3, page 12
Section ll
A.sserlion uf Other Claim,-!, page 13
Referral to the Litigation Division • 5 4, i)age 13
Proceedings to repossess Government real property or quarters or
to collect delinquent rent • 5 5, page 13
Chapter 6
Environmental Litigation, page 13
Scope •6-1, page 13
Duties and procedures • 6 2. page 13
Chapter 7
Release of Information and Appearance of, page 14

PFD and HQ, USACIDC coordination • 8-6, page 23
Coordination with DOJ • 8-7, jiage 24
Comprehensive remedies plan • 8-8, page 24
Litigation reports in civil recovery cases • 8-9, page 24
Administrative and contractual actions • 8-10, page 24
Overseas cases of fraud or corruption • 8-11, page 24
Program Fraud Civil Remedies Act (PFCRA) • 8-12, page 25
Chapter 9
Cooperation with the Office of Special Counsel, page 30
Introduction •9-1. page 30
Policy • 9-2, page 30
Duties • 9 3, page 30
Procedures • 9-4, page 31
Assistance from HQDA • 9-5, page 32
Chapter 10

Soldiers Summoned to Serve on State and Local Juries,
page 33
General • 10 I, page 33
Policy • 10-2, page 33
Exemption determination authority • 10-3, page 33
Procedures for exemption • 10-4, page 34
Status, fees, and expenses • 10-5, page 34
Appendixes

Section I
Scope, page 14
General •71, page 14
Policy • 7-2, page 14
Refenal to HQDA • 7 3, page 14

A.

Section 11
Release of Records in Connection Wiih Litigation, page 15
Release of Army and other agency records • 7-4, page 15
Determination of release authorization • 7-5, page 15
Records determined to be releasable • 7-6, page 15
Records determined not to be releasable • 7-7, page 15
Section III
OA Personnel «.v Wilne.s.ses in Private Liligaliun, page 16
Response to subpoenas, orders, or requests for witnesses • 7 8,
page 16
Official information • 7-9, page 16
Expert witnesses • 7 10. page 16
Interference with mission • 7-11, page 16
Section IV
Liligaliun in Which ihe United Stales lias an Interest, page 16
Response to subpoenas, orders, or requests for witnesses • 7-12.
page 16
Expert witnesses • 7-13, page 17
News media and other inquiries • 7 14, page 17
Section V
Status, Travel, and Expenses of Witnesses, page 17
Witnesses for the United States • 7-15, page 17
Witnesses for a State or private litigant • 7-16, page 17
Witnesses before foreign tribunals • 7-17, page 17

Chapter 8
Remedies in Procurement Fraud and Corruption, page 22
Purpose • 8-1, page 22
Policies • 8-2, ))age 22
Duties and Procedures • 8-3, page 22
Procurement fraud and inegularities programs at MACOMs • 8-4,
page 23
Reporting requirements • 8- 5, page 23

References, page 35

B.

Mailing Addresses, page 35

C.

Department of Defense Directive 5405.2, page 36

D.

Department of Defense Directive 7050.5, page 38

E.

Department of Defense Directive 5505.5, page 41

Figure List
Figure 3-1: Sample answer to judicial complaint with attached
Certificate of Service, page 6
Figure 3-2; Sample DA Form 4, page 8
Figure 3-3; Unswom declaration under penalty of perjury executed
within the United States, page 9
Figure 4-1; Format for a request for representation using an
unsworn declaration under penalty of perjury executed within the
United States, page 10
Figure 4 2; Format for scope of employment statement using an
unsworn declaration under penalty of perjury executed outside
the United States, page 11
Figure 4-3: Format for contractor request for representation,
page 11
Figure 7-1; Sample Touhy Compliance Letter, page 18
Figure 7 2; Sample Fact Witness Approval Letter, page 19
Figure 7 3: Sample Expert Witness Denial Letter, page 19
Figure 1-4: Sample of Doctor Approval Letter, page 21
Figure 8 1; Procurement Fraud Indicators, page 25
Figure 8-2; Guide for Preparing Remedies Plan, page 28
Figure 8-3; Guide for Testing Defective Items Under Criminal or
Civil Investigation, page 29
Figure 9-1; Guide for seeking legal advice and representation
before Office of Special Counsel, page 32
Glossary
Index

AR 27-40 • 19 Seplember 1994

33755
have the same general authority and responsibility as an Assistant
U.S. Attorney.

Chapter 1
General

(3) Special Attorm\'1-1. Purpose
a. This regulation prescribes policies and procedures for the
following;
(1) Defensive and affirmative litigation in Federal and State civilian courts where the Amiy or Department of Defense (DOD) has an
interest in the matter.
(2) Proceedings before Federal or State administrative bodies,
such as utility rate commissions.
(3) Release of official information and testimony by Department
of the Army (DA) personnel with regard to litigation.
(4) Remedies for procurement fraud and corruption.
(5) Environmental civil litigation and administrative proceedings.
(6) Proceedings before the Office of Special Counsel.
h. This regulation does not apply to Department of the Amiy
(DA) or DOD proceedings such as courts-martial or administrative
boards.
1-2. References
Required and related publications and prescribed and referenced
forms are listed in appendix A.
1-3. Explanation of abbreviations and terms
Abbreviations and terms used in the regulation arc explained in Ihe
glossary.
1-4. Responsibilities
a. United Slates Depariment of Jiixlice (DOJ). DOJ will defend
litigation in domestic and foreign courts, against the United States,
its agencies and instrumentalities, and employees whose official
conduct is involved. The various U.S. Attomey OtVices, under the
oversight of the Attorney General, will conduct much of the
representation.
h. The Judge Advocate General (TJACI. Subject to the ultimate
control of litigation by DOJ (including the various U.S. Attomey
Offices), and to the general oversight of litigation by the Army
General Counsel, TJAG is responsible for litigation in which the
Amiy has an interest. Except with respect to proceedings addressed
in subparagraph /' below, only TJAG (or a designee) will communicate to DOJ the Arniy's position with regard to settlement ofa case.
c. Assistant Judge Advocate General Fur Civil Law and Litigation (,4JAG-CL), Responsible to TJAG for litigation issues; supervises Chief, Litigation Division.
d. Chief, Litigation Division, Reports to AJAG-CL and is responsible for the following;
(1) Super\'ising litigation in which the Amiy has an interest
(2) Acting for TJAG and the Secretary of the Army on litigation
issues, including the authority to settle or compromise cases, subject
to the supervision of TJAG and AJAG CL.
(3) Delegating responsibility for cases if appropriate.
(4) Serving as primary contact with DOJ on litigation.
(5) Accepting service of process for DA and for the Secretary of
the Army in his or her official capacity. (Sec 32 CFR 257.5.)
e. Special Assistant U.S. Attorneys (SAUSAs) and DOJ special
attorneys. Army judge advocates and civilian attorneys, when appointed as SAUSAs under 28 USC 543, will represent the Arniy's
interests in either criminal or civil matters in Federal court under the
following circumstances;
(1) Felony and misdemeanor proseculions in Federal couri.
Army attorneys, at the installation level, after being duly appointed
(see AR 27-10), will prosecute cases, in which the Army has an
interest, in Federal court. Army attorneys who prosecute criminal
cases will not represent the United States in civil litigation without
authorization from the Chief, Litigation Division.
(2) SAUSAs for civil liiigation. By assignment of TJAG and upon
the approval ofthe U.S. Attorney, judge advocates will serve within
a U.S. Attorney's office to represent the Govemment in litigation in
which the Army or DOD has an interest. These judge advocates

and with the concunence of the appropriate DOJ official, judge
advocates will work as Special Attorneys for DOJ. Special Attorneys are authorized to represent the United States in civil litigation
in which the Army or DOD has an interest.
f. Ailorneys al Army activities or commands. Staff judge advocates (SJAs) or legal advisers, or attomeys assigned to them, will
represent the United States in litigation only if authorized by this
regulation or delegated authority in individual cases by the Chief,
Litigation Division.
g. Commander, U.S. Army Claims Service (USARCSI. The Commander, USARCS, and USARCS attorneys, subject to AR 27-20,
chapter 4, will maintain direct liaison with DOJ in regard to administrative settlement of claims under the Federal Tort Claims Act.
h. Chief Contract Law Division. OTJAG. The Chief Contract
Law Division, attorneys assigned to the Contract Law Division, and
other attorneys designated by the Chief, Contract Law Division, in
litigation involving taxation, will represent DA in negotiation, administrative proceedings, and litigation, and maintain liaison with
DOJ and other Governmental authorities.
/. Legal Representatives of Ihe Chief of Engineers. The Oftice of
Chief Counsel, attomeys assigned thereto, and other attorneys designated by the Chief Counsel will maintain direct liaison with DOJ
and represent DA in litigation and administrative proceedings arising from the navigation, civil works. Clean Water Act 404 permit
authority, environmental response activities, and real property fiinctions of the U.S. Army Corps of Engineers (COE).
/. Chief Trial Allurney, Contract Appeal,^ Divisi(m,USALSA, The
Chief Trial Attomey, attorneys assigned to the Contract Appeals
Division, and attorneys designated by the Chief Trial Attorney, will
represent the Government before the Armed Services Board of Contract Appeals (ASBCA) and the General Services Board of Contract
Appeals (GSBCA), They will maintain direct liaison with DOJ concerning appeals from ASBCA and GSBCA decisions. The Chief
Trial Attorney has designated COE attorneys to act as trial attorneys
in connection with COE contract appeals.
k. Chief ReguUiioiy Law Office. USALSA. The Chief, Regulatory
Law Office, attomeys assigned to the Regulatory Law Office, and
other attomeys designated by the Chief, will represent DA consumer
interests in regulatory matters before State and Federal administrative agencies and commissions, including but not limited to
proceedings involving rates and conditions for the purchase of services for communications (except long-distance telephone), transportation, and utilities (gas. electric, water and sewer). They will
maintain direct liaison with DOJ for communications, transportation,
and utilities litigation.
/. Chief, Intellectual Properly Law Division, USALSA, The Chief
Intellecttjal Property Law Division, and Ihe attomeys assigned thereto, will represent DA in matters pertaining to patents, copyrights,
and trademarks. They will maintain direct liaison with DOJ and
represent the DA in intellecttjal property issues.
m. Chief Labor and Einpluvmeni Law Office.OTJAC. The Chief
Labor and Employment Law Office, attomeys assigned thereto, and
attorneys identified as labor counselors will represent DA in matters
pertaining to labor relations, civilian personnel, and Federal labor
standards enforcement before the following; Federal Labor Relations
Authority; Merit Systems Protection Board; Equal Employment Opportunity Commission; Department of Labor; National Labor Relations Board; and, State workmen's compensation commissions. In
the event any individual mentioned in this subparagraph intends to
make a recommendation to DOJ conceming an appeal of any case
to a U.S. Court of Appeals, such recommendation will first be
coordinated with Litigation Division.
(J. Chief Pi-ocuremenI Fraud Divi.sion. USALSA. The Chief Procurement Fraud Division, attorneys assigned thereto, and other attorneys designated by the Chief will represent DA in all procurement
fraud and cormption matters before the Army suspension and debarment authority and before any civil fraud recovery administrative

AR 27-40 • 19 September 1994

33756

records privileged from release should be retained by the custodian
pending the court's ruling upon the Government's motion,

(2) When a motion to quash or for a proleclive order is not tiled,
or the motion is unsiiccesshil. and the appropriate DA official has
determined that no further efforts will be made to protect the records, copies of the records (authenticated if necessary) will be
submitted to the court (or to the clerk of court) in response to the
subpoena or order,
d. Clas.sifieJ and privileged maleriais. Requests from DOJ, U.S.
Attomeys, or attorneys for other Governmental entities for records
that are classified or otherwise privileged from release will be refened to the Litigation Division. (See para 7-2g.)
Section III
DA Personnel as Witnesses in Private Litigation
7-8. Response to subpoenas, orders, or requests for
witnesses
a. Policy. The involvement of present or former DA personnel in
private litigation is solely a personal matter between the witness and
the requesting party, unless one or more of the following conditions
apply;
(1) The testimony involves official infomiation,(See glossary,)
(2) The witness is to testily as an expert.
(3) The absence of the witness from duly will interfere seriously
with the accomplishment of a military mission.
b. Former DA personnel. Former DA personnel may freely respond to requests for interviews and subpoenas except in instances
involving official information (a{\) above) or conceming expert
testimony prohibited by paragraph 7-10 below. In those instances,
the subject of the request or subpoena should take the action specified in paragraphs 7-2(; and 7-3 of this regulation.
c. Present DA personnel. Present DA personnel will refer all
requests for interviews and subpoenas for testimony in private litigation through their supervisor to the appropriate SJA or legal adviser,
d Discretion lo testify. Any individual not wishing to grant an
interview or to testify concerning private litigation may seek the
advice of an Army attorney conceming the consequences, if any, of
refusal. Any individual not authorized to consult with Army counsel
should consult with private counsel, at no expense to the
Govemment.
7-9. Official information
a. In instances involving paragraph 7-8«(1) above, the matter
will be referred to the SJA or legal adviser serving the organization
ofthe individual whose testimony is requested, or to HQDA pursuant to paragraph 7-3(/ above. The deciding official will determine
whether to release the information sought under the principles established in paragraph 7- 5 above. If funding by the United States is
requested, see paragraph 7-16(7 of this regulation,
h. If the deciding official determines that the information may be
released, the individual will be permitted to be intcn'icwcd, deposed, or to appear as a witness in court provided such interview or
appearance is consistent with the requirements of paragraphs 7- 10
and 7-11 below, (See, for example, fig 7-2,) A JA or DA civilian
attorney should be present during any interview or testimony to act
as legal representative of the Army, If a question seeks information
not previously authorized for release, the legal representative will
advise the witness not to answer. If necessary to avoid release of the
infonnation, the legal representative will advise the witness to terminate the interview or deposition, or in the case of testimony in
court, advise the judge that DOD directives and Army regulations
preclude the witness from answering without HQDA approval.
Every effort should be made, however, to substitute releasable information and to continue the interview or testimony.
7-10. Expert witnesses
a. General rule. Present DA personnel will not provide, with or
without compensation, opinion or expert testimony cither in private
litigation or in litigation in which the United States has an interest

16

for a parry other than the United States. Former DA personnel will
not provide, with or without compensation, opinion or expert testimony concerning official infomiation, subjects, or activities either in
private litigation or in litigation in which the United States has an
interest for a party other than the United States. (See fig 7 -3.) An
SJA or legal adviser is authorized to deny a request for expert
testimony, which decision may be appealed to the Litigation
Division.
h. Exception fo Ihe general prohibition. If a requester can show
exceptional need or unique circumstances, and the anticipated testimony will not be adverse to the interests of the United States, the
Litigation Division may grant special written authorization for present or former DA personnel to testify as expert or opinion witnesses
at no expense to the United States. In no event, may present or
fonner DA personnel fiirnish expert or opinion testimony in a case
in which the United States has an interest for a party whose interests
arc adverse to the interests of the United States.
c. Exception for AMEDD personnel. Members of the Amiy medical department or other qualified specialists may testify in private
litigation with the following limitations (see fig 7-4);
(1) The litigation involves patients they have treated, investigations they have made, laboratory tests they have conducted, or other
actions they have taken in the regular course of their duties.
(2) They limit their testimony to facttial matters such as the
following; their observations of the patient or other operative facts;
the treatment prescribed or corrective action taken; course of recovery or steps required for repair of damage suffered; and, contemplated future treatment.
(3) Their testimony may not extend to expert or opinion testimony, to hypothetical questions, or to a prognosis.
d. Court-ordered experi or opinion testimony. If a court or other
appropriate authority orders expert or opinion testimony, the witness
will notify the Litigation Division immediately. If the Litigation
Division determines it will not challenge the subpoena or order, the
witness will comply with the subpoena or order. If directed by the
Litigation Division, however, the witness will decline respectfijily to
comply with the subpoena or order. (See United Stales ex. rel,
Touhy V. Ragen, 340 U.S. 462 (1951).)
Expert witness fees. All fees tendered to present DA personnel
as an expert or opinion witness, to the extent they exceed achjal
travel, meals, and lodging expenses of the witness, will be remitted
to the Treasurer of the United States.
7-11. Interference with mission
If the absence of a witness from duty will interfere seriously with
the accomplishment of a military mission, the SJA or legal adviser
will advise the requesting party and attempt to make altemative
arrangements. If these efforts fail, the SJA or legal adviser will refer
the matter to the Litigation Division.
Section IV
Litigation in Which the United States Has an Interest
7-12. Response to subpoenas, orders, or requests for
witnesses
a. Referral lo a deciding official. Requests, subpoenas, or orders
for official information, interviews, or testimony of present or former DA personnel in litigation or potential litigation in which the
United States has an interest including requests from DOJ, will be
resolved by the SJA or legal adviser pursuant to Ihe principles of
this chapter. The Litigation Division will be consulted on issues that
cannot be resolved by the SJA or legal adviser.
h. Rea.-isignmenl of witnesses. When requested by the U,S, Attorney, the SJA or legal adviser will ensure that no witnesses are
reassigned from the judicial district without advising the DOJ attorney. If a witness is vital to the Government's case and trial is
imminent, the SJA or legal adviser should make informal anangements to retain the witness in ihe command until trial. If this is not
feasible, or if a satisfactory anangcmcnl cannot be reached with the

AR 27-40 • 19 September 1994

33757

DOJ attomcy.thc SJAorlegal adviser should notify the Litigation
Division.

funds for other than local travel and will receive reimbursement
from DOJ or other Government agencies as appropriate.

7-13. Expert witnesses

7-16. Witnesses for a State or private litigant
ll, ,S/(t/i(,v of witness. If authorized to appear as a witness for a
State or private litigant and the testimony to be given relates to
infomiation obtained in the performance of official duties, a soldier
will attend in a permissive TDY stattjs. If authorized to appear as a
witness, but the testimony does not relate to information obtained in
the performance of official duties, a soldier may be granted a pass
or permissive TDY under AR 630-5, or be required to take ordinary
leave. The status of a civilian employee will be determined under
Federal Personnel Manual 630, subchapter 10.
h. Travel arrangements. The requesting party or State agency
will make all travel anangements for attendance of DA personnel
authorized to appear as witnesses for a State or private litigant. The
local commander may issue appropriate orders when necessary.
c. Travel expenses. The United States may not pay travel, meals,
and lodging expenses of the witness, other than normal allowances
for subsistence pursuant to the DOD Military Pay and Allowances
Entitlements Manual. These expenses are solely a matter between
the witness and the party seeking his or her appearance. Witnesses
ordinarily should be advised to require advance payment of such
expenses. Soldiers authorized to appear in a pass or pemiissivc TDY
status are not entitled to receive witness attendance fees, but may
accept travel, meals, and lodging expense money from the requesting litigant. All witness fees tendered the soldier, to the extent they
exceed such actual expenses of the member, will be remitted to the
Treasurer of the United States. A civilian employee authorized to
appear in his or her official capacity will accept the authorized
witness fees, in addition to the allowance for travel and subsistence,
and make disposition of the witness fees as instmcted by his or her
personnel office.
d. Funding hy the United Stales. Requests for DA personnel to
appear at Government expense as witnesses in State or local
proceedings for a party other than the United States, including cases
involving dotnestic violence or child abuse, will be referred to the
Litigation Division. The Litigation Division may authorize travel
and per diem expenses under paragraph 7-15 above when the case
is one in which the United States has a significant interest.

Requests for presentor fonner DA personnel as expertor opinion
witnesses from DOJ or other attorneys representing the United
Stateswill bereferredtothe Litigation Divisionunlesstlierequest
involvesamatter that has been delegated by theLitigation Division
to an SJAorlegaladviser. In no event may presentor former DA
personnel furnish expert or opinion testimony inacase in which the
United States has aninterest foraparty whose interests are adverse
tothe interestsofthe UnitedStates

7 14. I^ewsmedia andother Inquiries
News media inquiries regarding litigation or potential litigation will
be refened to the appropriate public affairs office. DA personnel
will not comment on any matter presently or potentially inlitigation
without proper clearance. Local public affairs officers will refer
press inquiries to HQDA (SAPA),WASHDC 20310 1500,with
appropriate recommendations lor review and approval by the Office
of the Chief of Public Affairs. All releases of information regarding
actual or potentiallitigationwill be coordinated withthe Litigation
Division prior to release.
SectionV
Status, T r a v e L a n d E x p e n s e s o f Witnesses
7-15. Witnessesfor the United States
.5^^^^^.^^^7i^^^^^^^^^^^^ A soldier authorizedtoappearasawitness
forthe United States, including those authorized to appear under
paragraph7 16^ below.will be placed on temporary duty.lfUSAR
orNGpersonnelare requested aswitnesses for the UnitedStates,
and iftheir testimony arises from their active duty service, they
shouldbeplacedon active duty totesttly. Thestatusofacivilian
employee willbe determinedunderFcderal Personnel Manual 630,
subchapterlO. DA personnel who appear as necessary witnesses for
aparty asserting the Govemmcnt'sclaimforniedicalcareexpen.ses
are witnesses forthe United States.
^. T^^^rv^^ ^^^^^^g^^^^^^^.^. Travel anangements for witnesses for
the United States normally are made by DOJ through the Litigation
Division for other than local traveL The Litigation Division will
issue instmctions for this travel, including hiiid citation, to the
appropriate commander. A U.S. Attorney, or an attomey asserting
the Govemment'smedical care claim under chapter5of this regulation, may make anangements for local travel through the SJA or
legal adviser for attendance of a witness who is stationed at an
installation withinthesamejudicialdistrict ornot morethan 100
miles from the place where testifying. Other requests, including
those under paragraph7 16^ below,willberefenedtotheLitigalion Division. The instructions from the Litigation Division, orthe
request from the U.S. Attomey or the attorney asserting the Govemment'sclaim, will scrveasabasis forthe issuanceofappropriate
travel orders by the local commander.
c, 7^B^i^^^^^^^^^^^(7^^^^^ (;^.^^^^^,^^^.^. The witness' commander or
supervisor should ensure that the witness has sufficient funds to
defrayexpenses.The SJAorlegal adviser will provideassistance.
(1) Where local travel is performed at the request of a U S,
Attomey and the testimony does not involve information acquired in
the performance of duties, transportation arrangements (costs) and
any perdieniexpensesarethercsponsibility o f t h e U S . Attorney.
(2) An attomey asserting the Govemment'smedical care or property claim may be requiredtoadvancelocaltravelexpense money
to the witness requested and to include these in recoverable costs
where the Govemment's claim is not large enough to justily ex
pendittires of Government travel funds.
(3) Other localtravelandper diem e.xpensesfor cases involving
Army activities or claims are proper expenses of the command
issuing the orders.
(4) LitigationDivision willfurnishlravel expense and per diem

7-17. Witnesses before foreign tribunals
a. Referral lo the SJA. Requests or subpoenas from a foreign
Government or tribunal for present DA personnel stationed or employed within that country to be interviewed or to appear as witnesses will be forwarded to the SJA of the command exercising
general court-martial jurisdiction over the unit to which the individual is assigned, attached, or employed. The SJA will determine the
following;
(1) Whether a consideration listed in paragraph 7-8«(l) through
(3) above applies.
(2) Whether the information requested is releasable under the
principles established in section II of this chapter.
(3) Whether the approval of the American Embassy should be
obtained because the person is attached to the Embassy staff or a
question of diplomatic immunity may be involved.
/). United Stales has an interest in the litigaiion. If Ihe SJA
determines that the United States has an interest in the litigation, the
commander may authorize the interview or order the individual's
attendance in a temporary duty status. The United States will be
deemed to have an interest in the litigation if it is bound by treaty or
other international agreement to ensure the attendance of such
personnel,
c. United Stales has no interest in the liiigation. If the SJA
determines that the United States docs not have an interest in the
litigation, the commander may authorize the interview or the appearance ofthe witness under the principles established in section III of
this chapter.
d. Witnesses healed outside the requester's country. If the requested witness is stationed in a country other than the requester's,
the matter will be refened to the Litigation Division.

AR 27-40 • 19 September 1994

17

33758

Ford, Arthur Jr CW2 (US)

From: Overgaard, Angel CPT USARMY (US)

Sent: Sunday, January 06, 2013 10:55 PM

To: Lind, Denise COL USARMY (US)

Cc: ?David Coombs'; Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY

Morrow, JoDean (Joe) CPT USARMY USAMDW Whyte, Hunter CPT
USARMY von Elten, Alexander (Alec) CPT USARMY Ford, Arthur Jr CW2
USARMY Williams, Patricia Ann (Trisha Williams-Butler) CIV USARMY USAMDW
Jefferson, Dashawn MSG USARMY Moore, Katrina MSG USARMY Raffel,
Michael SFC USARMY Fein, Ashden MAJ USARMY MDW Chavez, Richard
CIV Robertshaw, Dennis CIV (US) -

Subject: RE: Expert Witness Issue (UNCLASSIFIED)

Attachments: US Toledo.pdf.pdf; US Toledo2.pdf.pdf; US Tharpe.pdf.pdf; JER, para 5-410
(2011)pd?pdf

Classification: UNCLASSIFIED
Caveats: NONE

Ma'am:

In response to Friday's email from the defense, AR 27-46 does not apply to courts-martial
proceedings. It, therefore, makes sense that an individual at the litigation division has not
seen such a request. AR 27-46, para. 1-1(b) says, "This regulation does not apply to
Department of the Army (DA) or DOD proceedings such as courts-marital or administrative
boards." The United States contends that AR 27-46 likely does not apply to courts-martial
because we have the procedures set forth in the MCM.

Furthermore, just because 5 CFR Section 2635.865(a) is incorporated by reference into a
regulation that does not apply to courts-martial (AR 27-46), does not mean that 5 CFR Section
2635.865(a) does not apply to government employees. .

In fact, the Joint Ethic Regulation (DOD 5566.67-R) specifically incorporates 5 CFR Section
2635.865 in reference to expert witnesses. See attached 5566.67-R, para. 5~416(d)

("There are limitations on certain outside activities such as . . . service as an expert
witness . . . . See 5 C.F.R.
2635.864-868 . . .

Furthermore, although the requirements for expert consultants (MRE 562) and expert witnesses
(RCM 763(d)) are necessarily separate and distinct, the language in the below expert
consultant cases is instructive:

In US Toledo, 25 276 (CMA 1987), the defense went privately to a USAF clinical
to determine whether or not there were any possible problems concerning the
sanity of the accused. The Court allowed the government to call the same in its
rebuttal case to discuss the Accused's character for truthfulness. The Court stated that MRE
562 could have offered a safe haven but the defense did not request the government provide it
a medical officer for assistance in the preparation of the case.

The Court goes on to state that had the defense procured medical assistance for the
preparation of its defense at its own expense, the Court would have held that communications
between appellant and the expert were within the attorney-client relationship (at least
unless a mental responsibility defense was presented). However, "the defense tried to
commandeer a government official. . . . [S]ervicemember has no right simply to help
himself to government experts and bring them into the attorney-client relationship, bypassing
the proper appointing authorities." Id. at 276; see also US Toledo II, 26 M3 164, 165 (CMA
1988) (If an accused demonstrates a need for a to become a member of the
defense team in order to assist in the preparation of the defense, he must do so formally.

1 APPELLATE
PAGE REFERENCE D:
PAGE OF PAGES

Otherwise, an accused could itrarily commandeer a valuable ernment employee
appropriate considerations on availability, priority of mission-, or otherwise.")

In United States v. Tharpe, 38 MJ 8 (CMA 1993), the Court refers to the Toledo case in
discussing whether a Navy clinical who volunteered to assist the defense should
be appointed an expert consultant. The Court noted that the military expert must be made
available through the medium of a request via the appropriate military chain~of command so
the accused could not arbitrarily commandeer a valuable government employee without
appropriate considerations of availability, priority of missions, or otherwise.

Thank you.
Very Respectfully,

ANGEL M. OVERGAARD
CPT, JA
Trial Counsel,



From: David Coombs

Sent: Friday, January 04, 2013 10:33 AM

To: Lind, Denise COL USARMY (US)

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Morrow, JoDean (Joe)
CPT USARMY USAMDW Overgaard, Angel CPT USARMY whyte, Hunter CPT USARMY
von Elten, Alexander (Alec) CPT USARMY Ford, Arthur Jr USARMY
williams, Patricia Ann (Trisha williams-Butler) CIV USARMY USAMDN Jefferson, Dashawn
MSG USARMY Moore, Katrina MSG USARMY Raffel, Michael SFC USARMY Fein,
Ashden MAJ USARMY Mow (us) .
Subject: Expert witness Issue

Ma?am,

The Defense wanted to provide the Court and the Government with the benefit of information in
advance of our motions hearing. In the Government?s response motion, it cites 5 CFR Section
as a basis to prevent COL Larry, Mr. Cindrich, Mr. Hall, Mr. Ganiel and Ms. Smith
from being able to testify. .

_5 CFR Section 2635.805(a) is codified in AR 27-40, Chapter 7-10, page 16. Under AR 27-40,

the approval authority for any DA personnel to testify in a proceeding where the United
States has an interest for a party other that the United States is the Litigation Division,
OTJAG. However, Chapter 1-1(b) of the regulation does not apply in Department of Army or DOD
proceedings such as a court-martial or an administrative board.

Yesterday, I spoke with -, the Deputy Chief of Litigation Division. He
informed me that although his office acts upon requests for DA personnel to act as experts in
state and federal courts on a frequent basis, he has never seen such a request for a court-
martial. informed me that this is the case since AR 27-40 specifically
excludes application of the provision to courts-martial. The Defense has also conducted a
westlaw search for the provision relied upon by the Government and has not found a single -
military case that cites the provision.

33760 I

1 have attached the entire AR 27-40 for the Court. I have also attached an excerpt of AR 27-
49 which the Defense requests that the Court take judicial notice of for purposes of this
motion.

v/r

David

David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
_Providence, RI 02966

Toll Free: 1-866-588-4156
Local: (598) 689-4616

Fax: (588) 689-9282
.



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

Classification: UNCLASSIFIED
Caveats: NONE

'1

W?sttaw.

25 M.J. 270
(Cite as: 25 M.J. 270)

U.S. Court of Military Appeals.
UNITED STATES, Appellee,
v.
Hector L. TOLEDO, Seaman Recruit, U.S. Navy,
Appellant.

No. 54,817.
NMCM 85 3868.
Dec. 14, 1987.

Accused, seaman recruit, United States Navy,
was convicted by general court-martial James E.
Riley, J., of rape, indecent assault, and committing
indecent acts on female under age of 16. The
United States Navy-Marine Corps Court of Military
Review, reduced rape speci?cation to committing
indecedent acts upon child under age 16 and re-
duced period of confinement, but otherwise af-
firmed. Review was granted. The United States
Court of Military Appeals, Cox, J., held that: (1)
privilege concerning mental examination of ac-
cused did not apply to preclude disclosure of state-
ments made by accused during clinical
gist's confidential evaluation of accused at behest of
defense; (2) any error in allowing clinical
gist to testify regarding his personal opinion of ac-
cused's character for truthfulness was harmless; and
(3) any error in allowing expert to testify that al-
leged victim's response was quite common in child
abuse cases was harmless.

Affirmed.

Opinion on petition reconsideration, 26 MJ.
104.

West Headnotes
Military Justice 258A 691133

25 8A Military Justice
25 8AV Evidence and Witnesses
258Ak1126 Privileges

33761

Page 1

258Akl133 k. Privilege Concerning Men-
tal Examination of an Accused. Most Cited Cases
Privilege concerning mental examination of ac-
cused did not apply to preclude disclosure of state-
ments made by accused during clinical
gist's confidential evaluation of accused;
gist had not been ordered to examine accused, but
rather, had been requested to do so by defense
counsel. Military Rules ofEvid., Rules 302, 50l(d),
706; MCM 1984, App. 22, M.R.E. 501.

Military Justice 258A $91133

25 8A Military Justice
258AV Evidence and Witnesses
258Ak1 126 Privileges
258Ak1133 k. Privilege Concerning Men-
tal Examination of an Accused. Most Cited Cases
Statements made by accused during clinical
confidential evaluation of him were
not protected from disclosure by lawyer-client priv-
ilege, even though accused did not raise mental re-
sponsibility defense; rather than merely procuring
clinical assistance at accused's own
expense, accused had tried to obtain government
of?cial's services without going through proper ap-
pointing authorities. Military Rules of Evid., Rule
502(a), MCM 1984, App. 22,
502(b)(3); UCMJ, Art. 46, 10 U.S.C.A. 846.

Military Justice 258A

258A Military Justice
258AX Review of Courts?Martial
Further Review
In General
258Ak1423 Harmless or Prejudicial
Error; Test for Reversible Error
258Ak1425 k. Evidence and Wit-
nesses. Most Cited Cases
Any error in allowing clinical to
testify regarding accused's credibility was harmless,
considering slight probative force of such testimony
in comparison with other evidence in general court-

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.



25 M.J. 270
(Cite as: 25 M.J. 270)

martial proceeding. Military Rules" of Evid., Rules
608(a), 702, 705; UCMJ, Art. 59(a), 10 U.S.C.A.
859(a).

Military Justice 258A

258A Military Justice
25 Review of Courts?Martial
25 Further Review
In General
258Al<1423 Harmless or Prejudicial
Error; Test for Reversible Error
258Ak1425 k. Evidence and Wit-
nesses. Most Cited Cases .
Any error_in allowing expert testimony that al-
leged victim's response was quite common in child
abuse cases was harmless in general court-martial
proceeding on charges of rape, indecent assault and
committing indecent acts on child-under age of 16;

victim's testimony was thoroughly corroborated by 7

other witnesses. UCMJ, Arts. 59(a), 120, 134, 10
U.S.C.A. 859(a), 920, 934; Military Rules of
Evid., Rule 702.

Military Justice 258A ?%1415

258A Military Justice
258AX Review of Courts?Martial
Further Review
In General

258Al<1414 Preservation of Grounds

of Review; Waiver; Plain Error
.258Ak1415 k. Admission or Exclu-
sion of Evidence. Most Cited Cases .
Accused's failure to challenge foundation for
expert testimony that victim's response was quite
common in child abuse cases waived such objection
on appeal in general court-martial proceeding. Mil-
itary Rules of Evid., Rules l03(a)(l), 702.

Military Justice 258A Q-331109

258A Military Justice
25 8AV Evidence and Witnesses
258Ak1106 Confessions and Admissions
258Al-(1109 k. Warnings About Rights.

Pag?3Q762

Most Cited Cases

Clinical was not required to read
accused his rights prior to evaluating accused at be-
hest of defense. UCMJ, Art. 31(b), 10 U.S.C.A.

.83 1

*271 For Appellant: Lieutenant Colonel Richard E.
Ouellette, USMC (argued). I

For Appellee: Major F.F. Krider, USMC (argued);
Commander Michael P. Green, JAGC, USN (on
brief); Captain Carl H. Horst, JAGC, USN and
Captain Wendell A. Kjos, JAGC, USN.

Opinion oftlze Court
COX, Judge:

A general court-martial composed of officer
and enlisted members convicted appellant, contrary
to-his pleas, of one speci?cation of rape, ?ve spe-
ci?cations of indecent assault, and one speci?ca-
tion of committing indecent acts on a female under
the age of I6, in violation of Articles 120 and 134,
Uniform Code of Military Justice, 10 U.S.C. 920
and 934, respectively. He was sentenced to a dis-
honorable discharge, con?nement for 30 years, and
total forfeitures. The convening authority suspen-
ded con?nement in excess of 20 years and other-
wise approved the sentence. The Court of Military
Review was unpersuaded beyond a reasonable
doubt that penetration had occurred and reduced the
rape speci?cation to committing indecent acts upon
a child under the age of I6, a violation of Article
134. Upon reassessment of the sentence, the court
reduced the period of con?nement to 15 years but
otherwise af?rmed the sentence as adjudged.

We granted review of the following issues:

I
WHETHER THE MILITARY JUDGE ERRED
BY AUTHORIZING THE PROSECUTION TO
PRESENT AN EXPERT WITNESS TO OFFER
HIS OPINION ON TRUTH
AND VERACITY.

?2013 Thomson Reuters. No Claim to Orig. US Gov. Works.



25 M.J. 270
(Cite as: 25 M.J. 270)

WHETHER THE MILITARY JUDGE ERRED
BY AUTHORIZING THE TESTIMONY OF AN
EXPERT WITNESS . CONCERNING A
CREDIBILITY.



WHETHER THE MILITARY JUDGE ERRED
BY ADMITTING TESTIMONY OF A CLINIC-
AL IN VIOLATION OF
ARTICLE UCMJ, 10 U.S.C. 831(b)
Finding no error to the substantial prejudice of
appellant, we affirm. Art. 59(a), UCMJ, 10
U.S.C. 859(a).

Of the granted issues, only a portion of the first
issue requires substantial discussion. In order to re-
solve it and the other issues, however, a detailed
description of the evidence is necessary.

-When appellant first arrived for duty in Mis-
awa, Japan, he was befriended by Petty Officer
Arnardo Serrano. As Serrano testified: ?He
[appellant] was new in the command. He didn't
know anybody. And he was??he felt lost, so I was
just trying to make him feel at home.? Appellant
accepted the invitation and became a frequent visit-
or to the Serrano home, where he often played with
the three young Serrano children. One of the reas-
ons ?the Serranos let appellant play with their chil-
dren so much was that appellant often told them
how much he missed his adopted younger sister
who was back home.

On the evening of November 6, 1984, appellant
was at the Serrano home with Petty Officer Serrano
and the children. Mrs. Serrano had gone to .a baby
shower. Serrano was involved in connecting some
video equipment when it was time for the children
to bathe and get ready for bed. Appellant insisted
on going with them and, even though Serrano ?was
a little uncomfortable? about it, he let him. Period-
ically, Serrano would check in to make sure
everything was all right.

After the bath, appellant commenced reading
bedtime stories to the children in *272 their rooms.

Pag<33763

Following one unusually long period of silence,
Serrano again went upstairs to see what was hap-
pening. Peering into his 5-year-old daughter's
room, he discovered a sickening scene. The child
was sitting at the edge of her bed, leaning back-
ward, with her panties pulled down. Appellant
stood directly in front of her ?with his pants open.?
At trial, Serrano testified:

Toledo turned away, and walked towards the
comer. He had his hands in front ofhim. I did not
see his penis, but I saw a pubic hair, I saw his pu-
bic hair. [Toledo] quickly turned away and
started to zip his pants. I said, ?What the hell is
going on here??. I yelled. And my daughter
answered, ?Toledo was only scratching.? She
stood there [with] a terrified look on her face,
and she was shaking.

Serrano further testified as follows:

Will you describe for the members what was
he doing in the corner, could you observe him
from the corner??

A. He was ?xing his pants, trying to fix his
pants, put on his belt. I-1 stood there after
asked what was going on, and my daughter said
he was only scratching himself, I just stood there
for a few seconds, and I couldn't believe what
was going on. He was??he just had turned, and
he was over there ?xing his pants, he was just
buckling them up, zipping them up and
everything.

In response to Serrano's yell:

He [appellant] didn't say anything. He just
turned away with his head down, that's when he
started ?xing his pants. Then I just??I yelled-?I
yelled out again, I said, ?Get the hell out of my
house. I never want to see you near my kids. I
never want to see your face again.? And Toledo
walked out of the door, he was still ?xing his
pants.

Q. Did he?did he say anything to you??

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

25 M.J. 270
(Cite as: 25 M.J. 270)

A. He never said a word. He never even looked
at me. There was never any contact.

Q. Could you describe his appearance at.the
time he left the room?

A. He was?he was sweating profusely. He
was soaked, he was drenched in sweat. And he
just slowly walked out of the?out of the room.

Q. To the best of your memory, what?what
was the temperature, what were the climatic con-
ditions?

A. Oh, it was cold that night, it was really cold
that night. It was in November. It was pretty cold.

As appellant was leaving, Serrano instructed

him to report to his barracks, and he informed him

that he would be calling the Shore Patrol. Rather

than walking in the direction of the barracks, appel-

lant "headed straight for the main gate. Several
hours later, he was apprehended off base. His cloth-
ing was seized; laboratory analysis revealed the
presence of a largesemen stain on his underpants.

Approximately 3 months later, the victim testi-
?ed at an Article 32, UCMJ, 10 U.S.C 832, ses-
sion. Her testimony was videotaped, and a verbatim
transcript was prepared. At trial, the defense agreed
that the victim was unavailable to testify and that
there had been an adequate opportunity to cross-
examine her at the Article 32 hearing. Further, the

defense did not wish to have her testify in person-

Accordingly, the videotape recording of the vic-
tim's prior testimony was played forthe court me1n?
bers pursuant to the former?testimony exception to
the hearsay rule, Mil.R.Evid. 804(b)(1), Manual for
Cpiourts-Martial, United States, 1984.

In her testimony, the girl described the events
of the evening, including her mother's departure for
the baby shower, the bath in which appellant parti-
cipated, and the bedtime stories. She also stated that
on two occasions that evening appellant put his
?pee pee? [her] pee pee and poo poo.? One
of these incidents occurred ?[t]he first time he had



Pag??1754

came upstairs?; the other occurred when he read the
story.

The girl also stated that, onia previous occa-
sion, appellant had taken the three children to his

?house? (the barracks), and he *273 had done the

same thing to her there in the bathroom with the
door locked. On that occasion it also hurt when he
?[p]ut his pee pee in [her] pee pee.? When she
complained of the pain to appellant, started
doing it some more.? According to her testimony,
appellant had also touched her ?pee pee? with his
hands other times while at her house and had
hurt her.

FN1. For sentencing purposes, the military
judge treated the speci?cations as only

three offenses, grouping them around the

events alleged to have occurred between
December" 25, 1983, and November 5,
1984 (at appellant's barracks); those that
occurred at about 9:00 November 6,
1984 (the first incident at the house); and
those that occurred at about 9:50 p.m. (the
incident that Petty Of?cer Serrano walked
in on).

The victi_m's brother, Ryan, age 7, testified at
the trial and ?corroborated her account of being

taken to appellant's barracks. He also confirmed"

that he and his younger brother stayed in appellant's
room watching cartoons on television. His sister,
however, had to go to the bathroom. Appellant took
her?aIone?and they stayed for a ?[l]ong time.?
Petty Of?cer Serrano testi?ed that he had never
given appellant permission to take his children
away from their house.

Appellant testified in his defense and admitted
taking the children to his barracks without the
knowledge or consent of either Petty Of?cer or
Mrs. Serrano. His explanation was: ?The Mama-san
did say that it was okay by her.? He also acknow-
ledged taking the victim to the bathroom on that oc-
casion but denied that he had ?ever raped or sodom-
ized or in any way sexually assaulted or abused?

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

25 M.J. 270
(Cite as: 25 M.J. 270)

her.

Appellant's version, on direct examination, of
thealleged incident at the housewas that he ?had
noticed that [the child] had been scratching her-
self right through the night.? After the bath,

she was complaining that her?her sides were
itching. So, I told her, you know, ?let me see be-
fore I tell your dad,? which at the time??that's
when her dad came in the house. He came up-
stairs.

On cross-examination, appellant agreed that,
when Serrano walked in, the girl was sitting on the
bed, ?her gown was up to her chest, [a]nd her
pants were down around her knees.? He also admit-
ted:

I touched her in the area where she was com-
plaining about, which was her vagina, and that
was about 2 seconds, just to see if she was really
hurting. She told me yes. When I turned around
to get her father, he was already coming in.

?He denied ever having his pants down or open,
turning away to buckle or fasten his pants, or mas-

?turbating. He claimed that it was the victim who

stated, at the time her father burst in, that she was
scratching herself. His explanation for the semen in
his underwear was that, after he left the Serrano
household, he went into town and had sexual inter-
course with a woman he knew who worked at a
club. On cross-examination, he ampli?ed his ex-
planation thusly:

Q. Do you want to explain how your underwear
had a large stain as a result of ejaculation?

A. I thought I covered that clearly. I was out
with a couple of girls that night, I did not shower
after we had sex, and that was it.

Q. Are you in the habit of ejaculating in your
underwear when you have intercourse with wo-
men?

Pag8$7 65

A. Well, that night, I didn't see any reason, you
know. Just once in a while, we just go and do it
that way.

Q. Do you always have intercourse with wo-
men with your underwear on?

A. Once in a while, yes.

Q. Do you want to explain how it's possible to
ejaculate into your underwear and have sexual in-
tercourse at the same time?

A. That's very simplehave
sex with a girl, pull out whenever you feel like it.

In response to a question by the military judge
about whether appellant had ?ejaculated with? his
?undershorts on," appellant replied:

*274 No, sir. I did not say that. I simply stated
that you just pull out before you ejaculate. It was
getting late that night and I just wanted to go
home. I just wanted to go see what was going on
on base, turn myself in.

Previously, appellant had explained that he
knew the Shore Patrol was looking for him because
Serrano I said he would call them. On recross?
examination, he identi?ed his alleged sex partner as
a female named ?Hiromi? and stated that he had
known her since he had been in Misawa. He did not
produce her, otherwise identify her, or request her
as a witness at the court-martial.

With particular regard to the granted issues,
the prosecution, during its case-in-rebuttal, appar-
ently stunned the defense by calling as a witness
Dr. (Captain) Paul E. Rosete, USAF, a clinical psy-
chologist. The defense objected to Dr. Rosete's
testimony on the grounds of privilege. Defense
counsel explained that he previously approached
Dr. Rosete in con?dence and requested that the
doctor examine appellant with a view to detennin-
ing ?whether or not there were any possible prob-
lems concerning sanity.? Counsel never requested
that Dr. Rosete be appointed to examine appellant

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.



25 M.J. 270
(Cite as: 25 M.J. 270)

or to assist in the defense. Privately, however, he
asked of Dr. Rosete ?that the conclusions, reports,
notes, and tests be kept in strict con?dence and that
they be released to none other than myself or the
accused.? Counsel's rationale was that this prelim-
inary sort of ?check into the mental competency of
the accused? was a necessary or desirable predicate
to requesting a formal sanity board. On this basis,
counsel contended that the Government should be
precluded from doctor as a witness, cit-
ing Mil.R.Evid. 706.F

FN2. Mil.R.Evid. 706, Court appointed ex-
perts, provides:

Appointment and compensation. The
trial counsel, the defense counsel, and
the court?martial have equal opportunity
to obtain expert witnesses under Article
46 10 U.S.C. 846]. The em-
ployment and compensation of expert
witnesses is governed by R.C.M. 703.

Disclosure of employment. In the ex-
ercise of discretion, the military judge
may authorize disclosure to the members
of the fact that the military judge called
an expert Witness.

(0) Accusedk experts of own selection.
Nothing in this rule limits the accused in
calling expert witnesses of the accused's
own selection and at the accused's own
expense.

Both Article 46 and R.C.M. 703 deal ex-
clusively with the production of wit-
nesses and evidence at trial; no priv-
ileges are supplied by these provisions.

In response, trial counsel assured the judge that
he did not intend to elicit from the doctor any opin-
ion regarding appellant's sanity or lack thereof; his
purpose in calling the witness was merely to
present his opinion of appellant's ?character for
truth and veracity,? inasmuch as appellant had put

Page36766

such in issue by testifying, and to provide rebuttal
for certain of the assertions made by appellant in
his testimony. Counsel cited United States v. Park-
err, 15 M.J. 146 and United States v.
Matthews, 13 M.I. 501 (A.C.M.R.1982), rev?d in
part on other grounds, 16 M.J. 354
as authority, and the military judlgel permitted the
testimony for these purposes only. 3

FN3. The military judge's exact ruling was:

I will permit the testimony of the witness
only as to two particular areas. That
would have to do with the sexual history
as explained to him by Seaman Recruit
Toledo and he may also offer his opinion
as to the truth or veracity of Seaman Re-
cruit Toledo, if in fact a sufficient found-
ation can be laid for him to offer such an
opinion.

Dr. Rosete then con?rmed that defense counsel
requested the confidential evaluation and that he in-
terviewed appellant for approximately 10?12 hours.

In addition to discussing the alleged offenses
with appellant, which appellant steadfastly denied,
the doctor probed appellant's sexual history extens-
ively. At no time during the course of these conver-
sations did appellant ever mention having engaged
in sexual intercourse*27S with a woman named
Hiromi or anyone else on the evening of'November
6, 1984.

FN4. In view of the absence of testimonial
privilege, see text infra, Dr. Rosete had no
choice but to appear as a witness as direc-
ted and to respond to the questions of
counsel and the military judge.

Literally, it does not seem to matter whether
appellant had sex with Hiromi or how the semen
stain came to be on his underpants, considering the
circumstances under which he was discovered, his
admissions about his conduct with the victim, his
admission of having previously removed the chil-
dren from the home without the parents? knowledge

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.



25 M.J. 270

(Cite as: 25 M.J. 270)

or consent, the testimony of the children, and appel-
1ant's version of the events which, as the Court of
Military Review aptly put it, ?strained credulity.?
Unpub. op. at 3. However, giving appellant the
maximum benefit of the doubt, if any shred of reas-
onable doubt was left after his testimony, it was ob-
literated by Dr. Rosete's devastating rebuttal testi-
mony. Therefore, out of an abundance of caution,
we consider the propriety of Dr. Rosete's rebuttal
testimony.

The Military Rules of Evidence recognize no
doctor-patient privilege per se. Mil.R.Evid. 50l(d)
provides:

Notwithstanding any other provision of these
rules, information not otherwise privileged does
not become privileged on the basis that it was ac-

quired by a medical officer or civilian physician

in a professional capacity.

See also Analysis of the Military Rules of
Evidence, Manual, supra at 1.

Mil.R.Evid. 706, cited by the defense at trial, is
not itself of assistance to appellant. See 11. 2, supra.
On the other hand, Mil.R.Evid. 302, ?Privilege con-
cerning mental examination of an accused,? does
limit, with certain exceptions, disclosure of state-
ments by an accused during certain mental examin-
ations. In pertinent part, the general rule states:

The accused has a privilege to prevent any
statement made by the accused at a mental exam-
ination ordered under R.C.M. 706 and any deriv-
ative evidence obtained through use of such a
statement from being received into evidence
against the accused on the issue of guilt or inno-
cence or during sentencing proceedings.

(Emphasis added.) The problem for appellant,
of course, is that Dr. Rosete was not ordered to ex-
amine him under R.C.M. 706 or any other provi-
sion. Quite the contrary, the defense was apparently
seeking to avoid tipplitijig its hand at this juncture of

trial preparation. Thus, Mil.R.Evid. 302



Page373767

provides no haven for appellant.

FN5. The Government's theory is that the
defense wanted to avoid a sanity board un-
less they could be assured in advance of
favorable results. Thus the Government
would not have access to expert opinion
that appellant was perfectly sane, thereby
undermining the defense's sentencing
theme that appellant was just ?a sick man."

Ironically, there is a rule of evidence that
might have permitted appellant to utilize the ser-
vices of Dr. Rosete without risking disclosure of his
statements?the lawyer-client privilege,
Mil.R.Evid. 502(a). That rule provides, inter alia,

a privilege to refuse to disclose and to prevent
any other person from disclosing con?dential
communications made for the purpose of facilit-
ating the rendition of professional legal services
to the client, (1) between the client and the
lawyer or the lawyer's representative.

The ?representative? of a lawyer? is defined
as ?a person employed by or assigned to assist a
lawyer in providing professional legal services.?
Mil.R.Evid. 502(b)(3) (emphasis added). The
drafters of the rule identi?ed, nonexclusively,
paraprofessionals and secretaries as possible repres-
entatives of lawyers. Analysis, Manual, supra at


There is federal authority, however, that psy-
chiatrists?-and arguably in gener-
al?-employed by or appointed for the defense to as-
sist in the preparation of an insanity defense, fall
within the attorney-client privilege, at least where
such privilege is not waived by tendering an insan-

ity defense. United States v. Alvarez, 519 F.2d 1036

(3d Cir. 1975); United States ex rel. Edrrey v. Snritlr,
425 F.Supp. 1038 556 F. 2d
556 (2d - Cir.1977). The *276
place on the defense team to
?conduct an appropriate examination and assist in
evaluation, preparation, and presentation of the de-

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

25 M.J. 270
(Cite as: 25 M.J. 270)

fense? of insanity is now established beyond cavil.
Ake v. Oklahoma, 470 U.S. 68, 83, 105 1087,
1097, 84 L.Ed.2d 53 (1985).

"Had the defense requested that the ?Government

provide it a medical officer for assistance in the

preparation of its case, and had the Government
failed to do so, we would have concluded, under
Ake, that appellant had been deprived of
?[m]eaningful access to justice,? given the circum-
stances in which appellant was discovered by Petty
Officer Serrano. ?Id. at 77, 105 at 1094.
However, requesting this assistance would have

resulted in that very tipping off of the Government

that the defense apparently did not desire.

Had the defense procured medical assistance
for the preparation of its defense at its own ex-
pense, we would have held that communications
between appellant and that expert were within the
attorney-client relationship, at least unless a men-
tal-responsibility defense were presented.-
United States v. Alvarez, supra. However, here the

defense tried to commandeer a government official.

As the Supreme Court observed in Ake:

This is not to say, of course, that the indigent de-
fendant has a constitutional right to cho_ose a psy-
chiatrist of his personal liking or to receive funds
to hire his own. Our concern is that the indigent
defendant have access to a competent
for the purpose we have discussed.

at 83, 105 at 1097.

By the same token, a servicemember has no
right simply to help himself to government experts
and bring them into the attorney?client relationship,
bypassing the proper appointing authorities. Indi-
gency, of course, is not a prerequisite to expert as-
sistance in the military. Art. 46, UCMJ, I0 U.S.C.
846. To be sure, appellant has not claimed, either at
trial or on appeal, that an attorney?client privilege

existed with respect to Dr. Rosete, and under the -

circumstances we also ?nd none. Cf United States
v. White, 617 F.2d 1131 (5th Cir.l980). Accord-

Page38768

ingly, this aspect of the issue is without merit.

The remaining issues may be resolved more
First, trial counsel elicited from Dr.

I Rosete the fact that he had administered a battery of

tests to appellant and that he believed
he had ?had sufficient contact with? appellant ?to
form a personal opinion regarding his character for

?truthfulness?? Asked what that opinion was, the

doctor rep1ied?nonresponsively:

I think that given the time that I spent with him
and the information that he provided, and the.
manner in which it was provided, that he was be-
ing less than candid. I

(Emphasis added.) Presumably the lack of
candor related to appellant's denial of improper
conduct. The defense did not object at trial to either
the question or the answer, but now argues that ap-
pellant was prejudiced by the doctor's conclusion.

Admittedly, it is not clear whether the question
called for Dr_. Rosete?s expert opinion based on the
testing and other professional techniques,

Mil.R.Evid. 702-705, or his lay opinion,

Mil.R.Evid. 608(a). The Court of Military Review
concluded that the testimony was erroneously re-
ceived, citing United States v. Cameron, 21 M.J. 59
(C.M.A. 1985), but harmless given the state of the
evidence. Unpub. op. at 3. See also United States v.
Snipes, 18 M.J. 172, 179 (C.M.A. 1984), and 180
(Everett, C.J., concurring in the result); and United
States v. Cox, 18 M.J. 72, 73-74 (C.M.A. 1984).
Without unravelling the merits of the question, we
certainly agree with the court below that the probat-
ive force of this testimony was so slight,- in compar-
ison with the other evidence that, under the circum-
stances, appellant could not have been prejudiced.
Art. 59(a). Accordingly, no further consideration of
the issue is necessary.

The next question involves the testimony
of Captain Willard W. Mollerstrom, USAF, Chief
of Mental Health Services*277 at Misawa Hospital,
who testi?ed on behalf of the prosecution. Captain

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.



25 M.J. E70
(Cite as: 25 M.J. 270)

Mollerstrom held a Master's Degree in Public
Health and a in Social Work, and he had ex-
perience ?in the area of child Mollerstrom
examined the victim on three different occasions,
including the evening of November 6 when she was
brought to the hospital. Mollerstrom testified that,
on that evening, the victim ?was nonverbal? and
?very withdrawn, very dependent, very evasive."
Appellant objects to Mollerstrom's conclusion that
this response was ?quite common? in child-abuse
cases. He also objects to the Captain's opinion that

?she [the_victim] is capable of knowing the differ-

ence between telling the truth, telling a lie, differ-
ence between right and wrong as relating to her-
self.? No such objections were voiced at trial.

Essentially, appellant's complaint on appeal is
that the record contains an inadequate foundation
for Captain Mollerstrom's conclusions. See
Mil.R.Evid. 702. As a matter of law, we cannot say
that the witness was not competent to draw these
conclusions or that his knowledge could not assist

the triers of fact. In any event, inasmuch as the vic- .

tim's testimony was thoroughly corroborated ?by
other witnesses, Mollerstrom's testimony could not
have materially prejuldiceld appellant, ?even if it had
been erroneously received. Art. 59(a). Further, ap-
pellant?s failure to challenge the foundation waived
his objection on appeal. Mil.R.Evid. l03(a)(1). -

The final issue is whether Dr. Rosete
should have read appellant his Article 31(b),

7 UCMI, 10 U.S.C. 831(1)), rights before question-

ing him. It is apparent from this record that Dr.
Rosete, who was evaluating appellant at the behest
of the defense, was not interrogating appellant or
requesting a statement from him within the mean-
ing of Article 31(b). United States v. Jones, 24 M.J.
367 Accordingly,? no Article 31
warnings were required, and the issue is without
merit.

The decision of the United States Navy~Marine
Corps Court of Military Review is af?rmed.

Chief Judge EVERETT and Judge SULLIVAN

Page3@759




U.S. v. Toledo
25 MJ. 270

END OF DOCUMENT

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

W?stlaw.

26 MJ. 104
(Cite as: 26 M.J. 10(4)

U.S. Court of Military Appeals.
UNITED STATES, Appellee,
v.
Hector L. TOLEDO, Seaman Recruit, U.S. Navy,
Appellant.

No. 54,817.
NMCM 85 3868.
May 9, 1988.

Accused, seaman recruit, United States Navy,
was convicted by general court-martial, James E.

Riley, J., of rape, indecent assault, and committing

indecent acts on female under -age of 16. The
United States Navy-Marine Corps Court of Military
Review reduced rape speci?cations to committing
indecent acts upon child under age of 16 and re-
duced period of con?nement, but otherwise af-
?rmed, and review was granted. After convictions
were af?rmed, 25 M.J. 270, accused petitioned for

reconsideration. The United States Court of Milit?

ary Appeals, Cox, I. held that erroneous statement
in prior decision that issue of whether

fell within "attorney-client relationship had not been

raised and statement that defense was apparently
seeking to avoid tipping of hands during trial pre-
paration did not provide basis for altering earlier
decision.

Affirmed.
West Headnotes
Military Justice 258A

258A Military Justice I
25 8AX Review of Co_urts?Martial
25 Further Review
In General
258Akl435 Matters Peculiar to Re-
view by the Court of Appeals for the Armed Forces
(Formerly, the Court of Military Appeals)
258Akl435.l k. In General. Most

33770

Page 1

Cited Cases -
(Formerly 25 8Ak 1.43 5)

Court of Military Appeals? error in stating that
defense counsel had not argued that
fell within attorney-client relationship did not
provide basis for altering af?rmance of accused's

convictions for indecent assault and committing in-

decent acts on female under age of 16, in that earli-
er decision was not based on failure to raise issue;
point in earlier decision was that accused or counsel
could not simply annex government of?cials ?into
attorney-client relationship, but had to obtain them
through proper channels. Military Rules of Evid.,
Rule 502(a). - I -.

Military Justice 258A ?m1435.1

258A Military Justice
258AX Review of Courts?Martial
25 Further Review
In General -

258Akl'435 Matters Peculiar to Re-
view by the Court of Appeals for the Armed Forces
(Formerly, the Court of Military Appeals)

258Ak1435.1 k. In General. Most
Cited Cases

(Formerly 258Ak1435)

Court of Military Appeals? comment that de-
fense was apparently seeking to avoid tipping of
hand at particular juncture of trial preparation
amounted to passing speculation on possible de-
fense motive, not definitive adjudication of defense
counsel's state of mind, and did not provide basis
for altering prior af?rmance of accused's conviction
for the assault and committing indecent acts on fe-
male underage of 16; statement was made in con-
text of rejecting accused's primary contention on
appeal, that examinations by were
either in fact or functional equivalent to govern-
ment?ordered mental examinations and, hence, sub-
ject_ to limited privilege. Military Rules of Evid.,
Rule 502(a); R.C.M. 706.

Military Justice 258A M1129

?2013 Thomson Reuters. No Claim to Orig. US Gov. Works.



26 M.J. 104
(Cite as: 26 M.J. 104)

258A Military Justice
258AV Evidence and Witnesses
258Akl126 Privileges
258Ak1129 k. Physician?Patient. Most
Cited Cases

Military Justice 258A

258A Military Justice

Trial

258Ak1210 Trial
258Akl210.1 k. In General. Most Cited

Cases

(Formerly 25 8Ak1210)

Statements made to government
are not privileged per se; if accused demonstrates
need for to become member of defense
team in order to assist in preparation of his defense,
he must obtain one formally. R.C.M. 302, 706;
UCMJ, Art. 46, 10 U.S.C.A. 846.

*104 For Appellant: Lieutenant Colonel Richard E.
Ouellette, USMC.

For Appelleez No Appearance Filed.

Opinion ofthe Court
On Petition for Reconsideration
COX, Judge:

On December '14, 1987, we affirmed appel-
lant's convictions for indecent assault and commit-
ting indecent acts on a female under the age of 16
years. United States v. Toledo, 25 M.J. 270
(C.M.A.1987). Appellant now petitions for recon-
sideration of that-decision. We grant the petition,
but adhere to our earlier decision.

*105 The petition is predicated on two par-
ticulars. First, appellant points out that we were in
error in stating that appellate defense counsel had
not argued that Dr. Rosete, the fell
within theattorney-client relationship. See 25 M.J.
at 276. In that regard, appellant is technically cor-
rect. A review of both appellant's ?nal brief (page
15, paragraph 2) and the audio recording of the ap-
pellate arguments in this case con?rms our mistake,

Pag62i771

and we stand corrected.

However, our decision was not based on a fail-
ure to raise the issue. Thus, the fact that it was ad-
dressed does not alter the result. Had the issue been
viable but not raised, we would have raised it
ourselves. Indeed the tenor of our opinion was that
the attorney-client relationship, Mil.R.Evid. 502(a),
Manual for Courts-Martial, United States, 1984,
can be broad enough to encompass the assistance of
experts such as 25 M.J. at 276. Our
point was that an accused or counsel may .not
simply annex government officials into the attor-
ney-client relationship, but must obtain them
through proper channels.

We ventured so far as to assert:

Had the defense requested that the Government
provide it a medical officer for assistance in the
preparation of its case, and had the Government
failed to do so, we would have concluded, under
Ake Oklahoma, 470 U.S. 68, 105 1087,
84 L.Ed.2d 53 (1985) that appellant had been
deprived of ?[m]eaningful access to justice,? giv-
en the circumstances in which appellant was dis-
covered Id. at 77, 105 at 1094.

25 M.J. at 276. In appellant's case, however,
we deemed the tactics employed to be insufficient
to achieve attorney-client status. Id.

In the same vein, appellant takes issue with
our comment that ?the defense was apparently
seeking to avoid tipping its hand at this juncture of
trial preparation.? 25 M.J. at 275. As support, he
cites the fact that trial defense counsel scheduled
appellant's visits with Dr. Rosete through the Staff
Judge Advocate l\il?aval Security Group Activity,
Misawa, Japan. Again, this was not of de-
cisional importance. Our statement was made in the
context of rejecting appellant's primary contention
on appeal, which was that the Rosete examinations
were either in fact or functionally equivalent to
government-ordered mental examinations under
R.C.M. 302 and 706, Manual, supra; hence, appel-

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.



26 M.J. 104 .
(Cite as: 26 M.J. 104)

lant's communications enjoyed a limited privilege
under the rules. Our remark amounted to passing
speculation as to possible defense motive, not a
de?nitive adjudication of counsel's state of mind.

The offenses occurred at Misawa. The
Article 32, Uniform Code of Military
Justice, 10 U.S.C. 832, investigation was
conducted there, and appellant was in pre-
trial con?nement there. Therefore, defense
counsel's enlistment of assistance from the
staff judge advocate?s of?ce in obtaining
transportation was a matter of necessity.
-The court-martial, however, was conducted
some 424 miles to the south, at Yokosuka,
Japan, situs of the general court-martial
convening authority. See Official Tables of
Distance, Foreign Travel, Army Regula-
tion 55?61/Navy Supply Office P-2472
Air Force Manual 177-136 at 385
(September 1, 1985). Trial and defense
counsel were stationed at Yokosuka.

In summary, our decision is founded upon
the fact that statements made to a government psy-
chiatrist are not privileged per se. 25 M.J. at 275. If
an accused demonstrates a need for a to
become a member of the defense team in order_to
assist in the preparation of his defense, he must do
so formally. Otherwise, an accused could arbitrarily
commandeer a valuable government employee
without appropriate considerations of availability,
priority of missions, or otherwise. There is suf?-
cient legal authority in Article 46, Uniform Code of
Military Justice, 10 U.S.C. 846, and Ake to insure_
that an accused who needs help in preparing a psy-
chiatric defense will get such help.

We adhere to our decision of December 14,
1987.

Chief Judge EVERETT and Judge SULLIVAN
concur.


U.S. V. Toledo

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

26 M.J. 104

END or DOCUMENT

Page33772



We?tl?w,.

38 M.J. 8
(Cite as: 38 M.J. 8)



U.S. Court of Military Appeals.
UNITED STATES, Appellee,
v.
Carl W. THARPE, Corporal Marine Corps,
Appellant.

No. 67,861.
CMR No. 90 1082.
Argued Jan. 6, 1993.
Decided Sept. 27, 1993.

Accused was convicted by general court-mar-
tial, R.C. Stuart, J., of multiple speci?cations of
rape, sodomy, and committing indecent acts in-
volving accused's minor stepdaughter. The United
States Navy?Marine Corps Court of Military Re-
view af?rmed. Review was granted. The.United
States Court of Military Appeals, Cox, ., held that:
(1) accused received effective assistance of trial de-
fense counsel under all circumstances of case, des-
pite counsel's failure to exploit accused's claim of
extensive abuse as child, and (2) accused failed to
establish sufficient need for appointment of con?d-
ential expert to assist formulation of appeal to as-
sert claim of ineffective assistance of trial defense
counsel.

Affirmed.
Wiss, J., filed dissenting opinion.
West Headnotes
Military Justice 258A $31242

258A Military Justice
25 SAVII Trial
258Ak1238 Defense Counsel

258Ak1242 k. Effective Assistance of.

Counsel; Multiple Representation. Most Cited
Cases

Trial defense counsel's failure to exploit ac-
cused's claim of extensive abuse as child to obtain

33773

Page 1

reduced sentence for accused's sexual abuse of
stepdaughter did not establish ineffective assistance
of counsel, in light of trial defense counsel's lack of
knowledge of claim; previous and psy-
chological evaluations indicated normal childhood
and accused did not inform his counsel of making
any abusive childhood claims, although accused's
?le contained three speculative items suggesting
prior claims of abusive childhood. U.S.C.A.
Const.Amend. 6.

Military Justice 258A

258A Military Justice
258AVII Trial
258Ak1238 Defense Counsel
258Ak1242 kl. Effective Assistance of
Counsel; Multiple Representation. Most Cited
Cases
Accused received effective assistance of trial
defense counsel under all circumstances, despite
counsel's failure to exploit accused's claim of ex-
tensive abuse as child, even if counsel had known
of claimed abusive childhood at time of trial; ac-
cused received favorable pretrial agreement skill-
fully negotiated by counsel, trial strategy reason-
ably focused away from accused's prior miscon-
duct, and use of recent claim of abusive childhood
could have destroyed any credibility of accused by

- contradicting everything accused previously had

told experts. U.S.C.A. Const.Amend. 6.
Military Justice 258A ?13D12l0.1

258A Military Justice
258AVII Trial
25 8Ak1210 Trial
258Akl2lO.l k. In General. Most Cited
Cases
Acquisition of expert to assist accused or de-
fense counsel must be made by request through ap-
propriate military chain of command; accused or
defense counsel cannot simply commandeer milit-
ary employee to be private expert. R.C.M. 703(d).

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.



38 M.J. 8
(Cite as: 38 M.J. 8)

Military Justice 258A
258A Military Justice
25 8AVII Trial
'258Ak1210 Trial
258Ak1210.l k. In General. Most Cited
Cases
- Military judge or military appellate court ordin-
arily should not designate particular military em-
ployee to be expert witness in case, without de-
cision from appropriate chains of comlnand, even_
though military judges have power to ensure that
experts will be provided in appropriate cases.
R.C.M. 703(d).

Military Justice 258A em-1210.1

25 SA Military Justice
258AV1I Trial
258Akl 210 Trial .
258Ak1210.1 k. in General. Most Cited
Cases
Only extraordinary case would allow military
judge or military appellate court to order that par-

- ticular military personnel be appointed to assist ac-

cused without decision from appropriate chains of
command; judicial abatement of proceedings until
command authorities make adequate expert avail-
able is usually equally effective remedy. R.C.M.
703(d).

Military Justice 258A ?'#1242

258A Military Justice
25 SAVII Trial
258Akvl238 Defense Counsel
258Akl242 k. Effective Assistance of
Counsel; Multiple Representation. Most Cited
Cases
Accused failed toestablish sufficient need for
appointmen_t of con?dential expert to assist formu-
lation of appealvto assert claim of ineffective assist-
ance of trial defense counsel; expert opinion on
quality of trial representation or on other ap-
proaches that might have been taken at trial were
not germane after formal evidentiary phase of

Pag%?74

court-martial had passed. Military Rules of Evid.,
Rule 502.

Military Justice 258A '??>l242

258A Military Justice
25 SAVII Trial
258Ak1238 Defense Counsel

258Akl242 k. Effective Assistance of
Counsel; Multiple Representation. Most Cited
Cases

Fact that appellate defense counsel conceived
different trial tactic from that used at trial does not
mean that lawyer at trial was ineffective. U.S.C.A.
Const.Amend. 6.

*9 For Appellant: Lieutenant Michael C. Pallesen,
JAGC, USNR (argued); Lieutenant Mary L. Living-
ston, JAGC, USNR.

For Appellee: Lieutenant .I.C. Foster, JAGC, US-
NR (argued); Colonel T.G. Hess. USMC and Com-
mander W.F. Shields, JAGC, USN (on brief); Lieu-
tenant K.S. Anclerson, JAGC, USNR.

Opinion ofihe Court
COX, Judge:

Appellant pleaded guilty to a list of
sordid specifications of rape sodomy, and indecent
assault of his stepdaughter. His sexual attacks
began upon her when she was 6 years old and con-
tinued until she was 10. They did not cease until
appellant was assigned an overseas tour in Ok-
inawa. The scope, frequency, and intensity of this
conduct is detailed in appellant's guilty plea? admis-
sions and in a stipulation of fact agreed upon by ap-
pellant and the Government as part of a detailed
pretrial agreement. It is also pertinent to note that,
during the time appellant was privately committing
these acts upon his stepdaughter, he was in the pro-
cess of being charged, tried, convicted by a general
court?1nartial-??and treated?for indecently expos-
ing himself on a number of occasions to the wives
of fellow Marines. The bad-conduct discharge
awarded as punishment in that case was suspended

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38 MJ. 8
(Cite as: 38 M.J. 8)

by the convening authority as a result of a'n elabor-
ate pretrial agreement.

FNI. In all, appellant pleaded guilty to 11
speci?cations of rape, 8 of which were al-
leged as time intervals involving
?numerous occasions?; 9 speci?cations of
sodomy, 6 of which alleged ?numerous oc-
casions?; and 3 speci?cations of commit-
ting indecent acts upon the victim, each in-
volving ?numerous occasions,? in violation
of Articles 120, 125, and 134, Uniform
Code of Military Justice, 10 USC 920,
925, and 934, respectively. Tried at Camp
Pendleton, California, appellant was found
guilty by a militaryjudge sitting alone as a
general court-martial. He was sentenced to
a dishonorable discharge, con?nement for
75 years, total forfeitures, and reduction to
E-1. Pursuant to a pretrial agreement, the
convening authority approved the sentence
as adjudged but suspended con?nement in
excess of 12 1/2 years and forfeitures in
excess of $1050.00 pay per month for 3
years or until execution of the discharge.

Because of the instant charges, appellant faced
a sentence which included con?nement for life, a
dishonorable discharge, total forfeitures, and reduc-
tion to the lowest enlisted grade. In spite of these
serious charges (each of the 11 rape speci?cations
alone carried the potential for a life sentence) and
appellant's prior sex-related conviction, counsel for
appellant was able to negotiate a plea bargain that
limited any con?nement included in appellant's
sentence to 12 1/2 years.

Appellant now complains that his lawyer was
ineffective in that he ?failed to investigate and
present evidence of appellant's childhood sexual ab-
use and expert testimony concerning the effect that
abuse rrI}2I13{2have had on his sexual behavior as an
adult.? Furthermore, he complains that *10 the
Court of Military Review erred by failing to order
the Navy to provide a con?dential expert to assist
his appellate counsel in preparing his appeal from

Pag?32l775

this negotiated guilty plea.FN3 For the reasons set
forth below, we hold that no error prejudicial to the

- substantial rights of appellant was committed. Art.

59(a), Uniform Code of Military Justice, 10 USC
859(a).

FN2. We granted review of the following
issues:

I

WHETHER THE
CORPS COURT OF MILITARY RE-
VIEW ERRED BY FAILING TO FIND
INEFFECTIVE ASSISTANCE OF
COUNSEL WHERE THE TRIAL DE-
FENSE COUNSEL FAILED TO IN-
AND PRESENT EVID-
ENCE OF CHILD-
HOOD SEXUAL ABUSE AND EX-
PERT TESTIMONY CONCERNING
THE EFFECT THAT ABUSE MAY
HAVE HAD ON HIS SEXUAL BEHA-
VIOR AS AN ADULT.

WHETHER THE
CORPS OF MILITARY RE-
VIEW ERRED BY REFUSING TO IS-

SUE AN ORDER OF CONFIDENTIAL- I

ITY TO ALLOW APPELLATE DE-
FENSE COUNSEL TO FULLY IN-
VESTIGATE AND PRESENT ISSUES
RAISED BY THE CONFIDENTIAL
REPORTS OB-
TAINED BY COUNSEL.

FN3. Appellant on-October 10, 1990, ?led
a motion before the Court of Military Re-
view seeking appointment of an expert and
an order of con?dentiality. The request
was denied by order on February 22, 1991.
Appellant then sought on March 14, 1991,
reconsideration of the issue by the en banc
Court of Military Review. His request was
denied on April 9, 1991. Appellant then

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38 MJ. 8
(_Cite as: 33 M.J. 3)

sought a Writ of Mandamus from this

Court directing the -?Court of Military Re-9

view to issue an Order of Con?dentiality
to Lieutenant Commander Vladimir Nacev,
Medical Service Corps, U.S. Navy,
to protect from discovery by the Govern-
ment his appellate defense counsel's dis-
closure of privileged information to this
expert consultant.? We denied the petition
for extraordinary relief on May 16, 1991,
without prejudice to raise the issue on ap-
peal. 33 MI 166.

The issues on appeal are somewhat complex.
To understand them, it is necessary to digress to the
underlying theory of appellant's petition to this
Court. First of all, appellant_ claims that his trial de-
fense "lawyer was ineffective in the sentencing
phase of the trial because he did not investigate and
exploit the theory that appellant himself may have
been abused as a child. Appellant argues that, had
his defense counsel done so, some such evidence
would have been available to present to the military
judge and would have persuaded the "judge to give
appellant a sentence to con?nement less than the 12
1/2 years he ultimately received.

Secondly, appellant advances_the novel argu-

ment that, in order for his appellate defense counsel

to prepare his appeal, counsel should have available
a confidential expert, specifically Lieutenant Com-
mander Nacev, a clinical who is

agreeable to, provide this service, to peruse the nu-

merous reports of and ex-
aminations performed on appellant as a result of the
pending charges in this case and arising out of the
counseling appellant received as a result of his first
general court-martial. The expert would also, "ap-
parently, be given some? ?privileged information"
not available in the record of trial or the allied pa-

pers. This con?dential expert could then advise ap-

pellate defense counsel concerning the evidence,
her client, and the conduct of the case. Appellate
defense counsel, in turn, would be better able to de-
cipher and argue the evidence?and omissions?of

Pag?3776

record to the Court of Military Review, and so aid
its judges in reviewing the case as required by Art-
icle 66, UCMJ, 10 USC 866.

Adequacy of Representation

In United States v. Scott, 24 MI 186 (CMA
1987), we applied the rules announced by the
United States Supreme Court for testing whether an
accused received the effective assistance of coun-
sel. Strickland v. Washington, 466 U.S. 668, 104
2052, 80 L.Ed.2d 674 (1984). We have con-
sistently applied these rules and have not hesitated
to grant an accused a rehearing under circumstances
demonstrating a lack of effective performance by
counsel. United States v. Scott, supra,? United States
v. Lonetree, 35 MI 396 (1992), cert. denied, 507
U.S. 1017, 113 1813, 123 L.Ed.2d 444 (1993)
United States v. Polk, 32 MI 150 (1991). In Pol/c,

construing Strickland v. Washington, supra, we ar-

ticulated a three-part analysis to resolve claims of
ineffective assistance of counsel:

1. Are the allegations made by appellant true;
and, if they are, is there ?a reasonable explanation
for counsel's actions in the defense of the case?

2. If they are true, did the level of advocacy ?fall[
measurably below the performance
[ordinarily expected] of fallible lawyers??

*11 3. If ineffective assistance of counsel is
found to exist, ?is there a reasonable prob-
ability that, absent the errors, the factfinder
would have had" a reasonable doubt respecting
guilt??

Id. at 153 (citations omitted).

Likewise, we have applied this test to the ques-
tion whether an accused should be afforded a new
sentencing hearing where counsel's lack of effective
assistance may have resulted in a harsher sentence.
United States v. Lonetree, supra.

Applying this analysis to the facts presented
here, we conclude appellant does not get beyond
the first test. It is true that trial defense counsel did

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. 38 MJ. 8

(Cite as: 38 MJ. 8)

not pursue appellant's claim of having been abused
extensively as a child?but then trial defense coun-
sel was not even aware of this dubious claim, made
by appellant primarily to a brig counselor in Ok-
inawa. Not being aware of this ?information? and
given appellant's established pattern of misconduct,
counsel's tactic ?was to focus away from all his past
attempts at therapy and to stress his few good milit-
ary traits, his remorse, and his willingness to seek
help." From our review of the record, this was an
appropriate tactic under the circumstances, one that
a reasonable, competent, and effective lawyer
would employ in the defense of a client. Thus, the
first prong of the analysis is not met.

In any event, failure to pursue this line of po-
tential mitigation is inconsequential under the cir-
cumstances. According to trial defense counsel's
uncontroverted post-trial affidavit, ?Corporal
Tharpe was evaluated by and
logists on six (6) different occasions between
September, 1986 and September, 1989, [and] never
in any of those sessions did he make any of the
same drastic claims that he made? later in Okinawa.
The six reports relied upon by the defense counsel
indicate a normal childhood and an initial ?sexual
experience at the age? of 17. The reports contain
absolutely no assertion by appellant that he had
been abused as a child, and in some cases _the re-
ports indicate appellant's speci?c denial of having
been abused as a child.

Further, as trial defense counsel persuasively
argues in his affidavit, even if he had known of the
counseling statement from Okinawa, he would not
have dared used it. It so contradicted everything

else that appellant had told the experts that the pro-

secution rebuttal would have easily shattered any
possible remnant of appellant's good faith and cred-
ibility.

The dissenting opinion charges (38 at 27)
that trial defense counsel was not aware of the ab-
use ?evidence? in his own case file. It n1ust be
clearly noted, however, that there is not a scrap of
support for this astonishing, unilateral contention.



Pag?5S777

Appellate. defense counsel clearly states, on brief,
that she found only three items in trial defense
counsel's case file, items which supposedly should
have impelled trial defense counsel to further in-
vestigate the possible sexual abuse of appellant as a
child. Final Brief at 8.

These items include a one?sentence excerpt
from the report by Dr. Stubbs, a defense
gist, which states:

While [appellant] denied conscious knowledge
of any molest of his own there is strong support
both in the interview and the testing data to for-
ward the hypothesis that he was the victim of
some significant physical, emotional, and sexual
abuse.

(Emphasis added.) This ?hypothesis? can only
be characterized as speculative.

The dissenting opinion, however, transforms
this ?hypothesis? fragment into a:

glaring report from Dr. Stubbs that contained
suggestions that appellant had been the victim of
child sexual

38 MJ at 27 (emphasis added).

Another one-sentence excerpt from the case
file relied on by the dissent was the following
hearsay statement of appellant's wife, contained in a
San Diego social worker's report:

*l2 Mrs. Th[a]rpe states that to her knowledge
Mr. Th[a]rpe has a family history of sexual ab-
use.

The basis of this claimed knowledge is, of

_course, not mentioned. The unlikelihood that Mrs.

Tharpe was around to have personal knowledge of
such conduct is self?evident. This hearsay sentence
is best characterized as dubious.

The final item appellate defense counsel re-
ports having found in the case file was a

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33 M.J. 3
(Cite as: 33 M.J. 8)

?Self?Description Checklist? See Appendix A. Ac-
cording to appellate defense counsel, this was part
of appellant's Aug. 5, 1988, evaluation for depres-
sion at Naval Hospital Camp Pendleton, which was
the fourth of seven evalu-
ations recited by trial defense counsel in his af?-
davit. See Appendix B. Though multiple past dis-
turbances and misbehaviors have been checked off
on this unsigned list sexually abused, cruelty
to animals, suicidal thoughts, physically abused,
depression, sexually very active, sexual problems,
raped someone), trial defense counsel notes that the
evaluation report itself recites that appellant

stated that he was raised primarily by his grand-
mother, but reported good relations with both
parents. Tharpe reported an essentially nor-
mal childhood.

According to trial defense counsel, this report
was contained in appellant's medical records; and
the accuracy of trial defense counsel's description
of it is unchallenged by appellant.

This checklist also can only be described as du-
bious. First, it apparently conflicts with appellant's
statements during that very evaluation. Second, it
appears appellant had been caught fudging in simil-
ar circumstances in the past. Trial defense counsel
notes in his affidavit that the sanity board conduc-
ted in conjunction with appellant's prior court-
martial found that appellant

in ?lling out all the test documents had attempted
to ?fake bad? in a conscious effortvto be seen as
crazy and so mitigate his culpability.

The existence of this sanity board ?nding, as
reported by trial defense counsel, also stands unre-
butted here.

Most obviously, as trial defense counsel would
have been painfully aware, appellant's credibility
and integrity were negligible, due to the fact that he
had conned the therapists into pronouncing him re-
habilitated, after their extensive counseling and

Pag3'36778 .

therapy efforts following his prior general court-
martial for indecent exposure. Unbeknownst to the
well-meaning therapists, however, appellant's sexu-
al exploitation of his stepdaughter escalated
throughout the entire period of his ,?successful?
therapy.

The three foregoing bits?the single sentences
from the Stubbs' report and Mrs. Tharpe?s hearsay
statement, as well as the check1ist?were the only
arguable indicia of abuse appellate defense counsel
reports ?nding in trial defense counsel's ?le. Final
Brief at 8. Also contrary to the assertion of the dis-
sent, there is absolutely no suggestion that trial de-
fense counsel was not ?aware? of what was in his
case ?le or that he had not read it. Obviously the
foregoing pitiful fragments amounted to nothing as
compared to the vast quantum of refutatory am-
munition readily available to the Government.

The ?Okinawa report? (See Appendix C), on
the other hand, was prepared June 15, 1989, in Ok-
inawa, upon appellant's apprehension for sexually
abusing his stepdaughter in California. The report is
addressed to ?Secretary of the Naval Clemency
Board, Washington, D.C., Via: Commandant of the
Marine Corps.?

As implicitly acknowledged by appellate de-
fense counsel, Final Brief at 2-3, this report con-
tains by far the most extensive assertions of abuse
made by appellant. In part, the report relates:

Tharpe describes his childhood as, can tell you
things you wouldn't believe. I could write a
book.? Tharpe stated he observed numerous acts
of incest and sexual relationships between hu-

mans and horses. He stated everybody in his-

?community? were all related, describing mem-
bers of his family as being interbred.*13 Tharpe
stated his father molested and had an ongoing
sexual relationship with his sister. Tharpe did not
say he actually saw any sexual contact between
his father and his sister, but that his sister had
con?ned [sic] in him, that his father had ?inserted
himself? into her. When asked if he had been

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38 M.J. 8
(Cite as: 38 M.J. 8)

sexually molested, Tharpe stated, don't think
so, I don't remember.? When asked if any sexual
misconduct had been reported, Tharpe stated,
?where I come from, you don't report these
things, it's just a way of life.? The only time
Tharpe described any type of abuse involving
himself, was when a school teacher had placed
her hand down his pants to see if he had wet his
pants. Tharpe indicated he was old enough to be
?affected.? Tharpe also indicated he had a history
of bed wetting. Tharpe stated he had witnessed
sexual contact between horses and horses and hu-
mans. Tharpe stated the ?older? children forced
the younger children to watch and also perform
sex. Tharpe stated he felt he was physically ab-
used by the older children, as he was forced to
?ght other children, made to hide behind a tree
while being shot at with a BB gun, forced to have
sex with other children his own age.

Particularly with respect to appellant's own
sexual activity and his relationship with his parents,
these assertions stand in stark contrast with appel-
lant?s statements to the

This ?Okinawa? report is also what the Califor-
nia-based trial defense counsel clearly denied
knowing about:

At that time [6 July 1989], I speci?cally asked
him to tell me about everyone he had spoken to
on "Okinawa because I was aware that he had
made admissions to both agents of the Naval In-
vestigative Service on 14 June 1989 and his wife
in letters and telephonically. At no time did Cor-
poral harpe ever advise me that he had spoken
to a counselor at the brig in Okinawa. The first
time I was made aware of the Prisoner's Sum-
mary Continuation Sheet was on 23 July 19911
when Government Appellate Counsel advised me
of its existence.

(Emphasis added.) Trial defense counsel's posi-
tion in his af?davit was that, even if he knew about
the Okinawa report, he would not have used it due
to appellant's credibility problem and the mass of

Pag?33779

contradictory evidence having issued from his own
mouth.

Appellant's trial was conducted on September
21, 1989, at Camp Pendleton. The allied papers
contain a document entitled, ?Prisoner Assignment
and Clemency Board Action,? dated Jan. 16, 1990.
Immediately following this document is a handwrit-
ten ?Request for Restoration/Clemency,? also dated
Jan. 16, 1990, submitted by appellant. Following
these are three ?Prisoner's Progress Summary Data?
documents, the oldest of which is the ?Okinawa?
report. All of the progress summaries are ad-
dressed: ?Secretary of the Naval Clemency Board,
Washington, D.C., Via: Commandant of the Marine
Corps.? The appearance of these document in the
allied papers does not indicate that trial defense
counsel, 4 months earlier at the court-martial, was
aware of the Okinawa report at the time of trial or
that it was then in his case ?le. Appellate defense
counsel do not claim to have found this document
in trial defense counsel's case ?le. Trial defense
counsel denies knowledge of the document until

long after trial, when his competence was first be-

ing attacked.

Under all these circumstances, including
the favorable pretrial agreement skillfully negoti-
ated by counsel, we cannot imagine a reasonable
probability that appellant would have bene?ted
from an attempt to exploit this belated and suspect

claim of appellant. Thus, even if we were to reject

counsel's explanation for failing to investigate this
theme, we are confident that appellant was not pre-
judiced.

Appellate Expert Assistance
As previously noted, appellant seeks

to bootstrap his claim of ineffective assistance of

trial defense counsel with a request that the Court
of Military Review *14 order appointment of a con-
?dential expert to his appellate team to assist appel-
late defense counsel in the preparation of the ap-
peal. See Mil.R.Evid. 502, Manual for
Courts?Martial, United States, 1984; cf United

States v. Toledo, 25 MJ 270 CMA 1987), origin-

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33780
Pages

38 M.J. 8
(Cite as: 38 M.J. 8)

al opinion adhered to on recon., 26 MJ 104 (CMA),
eery, denied, 488 U.S. 889, 109 S.Ct 220, 102
L.Ed.2d 211 (1988). The Court of Military Review
declined.
FN4. Certainly it appears from paragraph 6
of the affidavit of Lieutenant Commander
Nacev, which was attached to the motion
for appointment of an expert, that he was
"ready, willing and able to provide the required assistance." Furthermore, his
"present duties do not preclude my participation on behalf of Corporal Tharpe." He
was "available to assist in his appellate
case." We have made it clear, however,
that neither an accused nor his or her counsel may simply "commandeer" a military
person to be his private expert. The expert
must be made available through the medium of a request via the appropriate military
chain of command. United States v.
Toledo. 25 M J 270, 276 ( CMA 1987),
opinion adhered to on recon., 26 MJ 104
(CMA), cert, denied, 488 U.S. 889, 109
S.Ct 220, 102 L.Ed.2d 211 (1988).
"Otherwise, an accused could arbitrarily
commandeer a valuable government employee without appropriate considerations
of availability, priority of missions, or otherwise." 26 MJ at 105. ^ee RCM 703(d),
Manual for Couits-Marfial, United States,
1984.
For the very same reasons that a military
accused or defense counsel cannot commandeer
a government
employee
without an appropriate decision being
made through the appropriate chains of
command, a military judge or an appellate court ordinarily should not reach out
and designate a particular person as an
expert witness in a case. But cf. United
States V. True, 28 MJ 1 (CMA 1989). It
is clear, however, that military judges
have the power to ensure that experts

will, in appropriate cases, be provided.
But only in an extraordinary case would
the military judge (or appellate court) order that a particular expert be appointed.
United States v. Carries, 22 MJ
288(CMA), cert denied. 479 U.S. 985,
107 S.Ct 575, 93 L.Ed.2d 578 (1986);
United States v. True. 28 MJ 1057
(NMCMR 1989). Judicial abatement of
the proceedings until command authorities make an adequate expert available is
usually an equally effective remedy.
UnitedStates v. True, 28 MJ at 4.
As we have acknowledged, "It is well established that, upon a proper showing of necessity, an
accused is entitled to the assistance of an expert to
aid in the preparation of his defense." United States
V. Burnette, 29 MJ 473, 475(CMA), cert denied,
498 U.S. 821, 111 S.Ct 70, 112 L.Ed.2d 43 (1990);
see Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087,
84 L.Ed.2d 53 (1985); United States v. Van Horn,
26 MJ 434 (CMA 1988). We have not limited expert assistance to the trial of a case. Experts have'
also been made available to assist counsel in preparing an appropriate appeal. United States v,
Curtis. 31 MJ 395 (Daily Journal CMA 1990).
Regarding appellant's showing of necessity, he
cites three areas in which he hopes the expert would
be of assistance in establishing the inadequacy of
his trial representation. First, appellant hopes to
bolster his contention that trial defense counsel's
representation was inadequate in failing to present
evidence, in mitigation of sentence, which suggested that appellant was a victim of child sexual abuse. In that regard, appellant asserts, the expert
could review in confidence the as-yet-privileged
portions of the psychiatric and psychological tests
and reports currently in defense hands. Thus armed,
the expert could suggest
what evidence of appellant's history of abuse
which was available to trial defense counsel
should have been presented, what impact appellant's own abuse played on the offenses for which

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33781
Page9

38MJ8
(Citeas:38M.J.8)

appellant was charged and convicted,what questions should have been asked of thegovernment
expert, and what possible impact this evidence
might have had on the trier of facL
Final Brief at 12.Inaddition,appellantwants
theexpert to be able to interview him in confidence.
Second, appellant asserts that trial defense
counsel may have been inadequate in failing toinvestigate and present an issue regarding appellant's
mental responsibility.Appellant argues thataques
tion of mental responsibility,hence presumably trialdefense counsel'sinadequacyinfailingtopress
same, arose from the testimony of a ^"15 govemment expert on sentencing that child sexual abusers'
behavior is "something they don't have control
over."The expert described it as an "addiction."Final Brief at 12. [Thoughwe disagree that this particular testimony implicatedthedefenseof mental
responsibility,.:^eeRCM916(k)(l), Manual,,^^^r^,
wewillconstmethegistof appellant'scontention
tobethattrialdefensecounsel'sperformance was
suhpar in failing generally to investigate or raise
mental responsibility asadefense.]
[6] Appellate counsel's third contention turns
out to he a mere reassertion of the first contention—that trial defense counsel's failure "to fully
develop the issue of theimpact of appellant's own
victimization on the present offense" had an ad
verse impact on"scntcnce appropriateness." Final
Briefat 13. Based on these attempted justifications,
wemustagree with theCourtofMilitaryReview
that the need foraconfidential expert is not established.
The issue before usis not whether theieis,or
may he developed, some new opinion evidence that
appellant wasactually abused asachild orlacked
mental responsibility. The question is whether trial
defense counsel madeavalid tactical decision, giv
entheinformationandoptionsavailahle.Trialde
fense counsel's decision is not rebutted hy dredging
up some new evidence supporting appellant's he-

lated contention.This is notanew trial on the merits smuggled intothe appellate process.New trials
are governedby RCM 1210. ,^ee y7i7^7e^^y^ye.^^ v.
7^^r^er,36MJ 269 (CMA 1993).Inquiries into ap
pellant's mental condition are governed hy RCM
706
The circumstances of this case are very different from those in T'^ye^^, where defenseoounsel,
prior to trial,gotamilitary psychologist to agree to
make a confidential assessment of the accused's
mental status before the defense decided whether to
requestaformalinquiry into the accused'smental
status.^eeRCM 706. Basedontheresultsofthat
spot check, thedefenseelectedto forgo theRCM
706inquiry,and they did not presentamental responsibility defense.
Later, at trial,Toledo propoundedarather elaborate testimonial explanationof the events onthe
evening in question, testimony which he hoped
would persuade the factfinder to acquit him. In rebuttal,the Govemment called tothe stand the psy
chologist who had previously examined the accused.Uponcourtorder,the witness related,y^yer
^y^i^, certain statei^ents made by appellant to the
psychologist that seemed to contradict appellant's
trial account of the events onthe evening inquestion. Toledo did not, at trial, argue that the psycho
legist's services fell within the attomey client priv
ilege, and we did not deem them such under the circumstances.25 M J a t 276.Had the accused assertcdaneedforexpertassistancetoprepareforthe
eourt-martia^^owever, we indicated we would
have agreed.
FN5. Asinfederallaw, thereisnophysi
cianpatient or psychotherapistpatient
privilege in the military. However,
Mil.R.Evid. 502 Manual, .^^^r^, provides:
Aclienthasaprivilege to refuse to dis
close and to prevent any other person
from disclosing confidential communica
tions ^^^e^ryy^e^^^t^,^ei^^e^7^7^y^7^^

yy^e re^^yyyt^^ t:^^r^,^,^^7^^^y ye^^y .^er-

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Page 33782
10
38M.J.8
(Citeas:38M.J.8)

vyee.^y^yy^eey^e^y,(l)between the client
or the ey^e^y^.^ re^re.^e^y^y^'ve and the
lawyerorthey^w)^er^,^re^re,^e^y^yive,(2)
between the lawyer and the y^iiB)Ber^,^re^re.^e^y^y^ve, (3)by the client or the client's lawyer toalawyer representing another inatnatter of common interest, (4)
between re^re.^e^y^^^ve.^ ^yy^e e^^e^y or
betweenthe client andare^re,^e^y^y^ve
^yy^eeyye^y,or(5) between lawyers representing the clienL
(Emphasis added.)
"A ^representative' of a lawyer is
[defined asjaperson employed by or as
signed to assist a lawyer in providing
professional legal serviccs."Mil,R.Evid.
502(b)(3)
No
definition
of
"representative of the client" is
provided. However, given an adequate
showing of need,we have indicated that
a psychotherapist would seem to fit
within this rule.^ntyye^.^y^ye.^v.T'^ye^^,
25MJat 276 and26MJat105
Here, incontrast, the formal evidentiary phaseof
the court martial has passed. Appellate defense
counsels'mission is to show that trial defense counsel's election of strategy was deficientYet trial de
fense '"16 counsel's assertionthatappellant'sown
statements precluded this belated mitigation theory
stands unrehutted.The professionalopinions of an
expert directly(or,indirectly,through the argument
of counsel) on the quality of trial representation or
on other approaches that might have been taken are
not presently germane. Thus, the Court of Military
Revicwcanhardlyhave erred in failing to appoint
Dr. Nacev asaconfidential advisor to pursue those
matters. Moreover, it is clear what trial defense
counsel did or did not do.The Court ofMilitary Re-

view did not need expert opinion to tell them that
[7] Notwithstanding the Court ofMilitary Review's
refusaltoappointaconfidentialadvisor, appellate
defense counsel haslaunched an impressive attack
on trial defense counseLIt is unclear whether appellate counsel availed themselves of the nonconfidential advice of Lieutenant Commander
Nacev in formulating their appellate argumenL It is
clear, however, as noted earlier, that the tactics em
ploycdby thetrial lawyer werewellwithinthose
recognizedas acceptable inthe legalcommunity.
The factthat appellate defense counselhavenow
conceivedadifferent trial tactic from the one used
at trial does not mean that the lawyer at trial was ineffective ^^^ye^^y^ye.^ IB TO^C^^e, 21 MJ 440
(CMA),e^ry^e^^e^,479 US 826,107 SCt101,
93LEd2d 52 (1986)
We are satisfied that theCourtofMilitaryReview
had ample information to decide whether the findings and sentence in this case were correct in fact
andlaw. Art 66. Wehave carefully reviewedthe
entire record of trial and the allied papers, including
the affidavit of appellant's trial defense counsel,
andwc conclude that appellantwas not denied ef
fective assistance of counsel at triaL In addition,
even though the appropriateness of an order of
"confidentiality" has not heen shown,we are satisfied that the lack of such protection did not hinder
the legitimate preparation ofthis appeaL
The decision of the United States Navy-Marine
Corps Court ofMilitary Review is affirmed.
Chief Judge SULEIVAN and Judges CRAWFORD
and GIERI^E concur.
'"17APPENDIXA

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IX SELF-DFSCRIPTIOM CHFCKLIST: CHECK ALL ITEMS THAT DESCRIBE YOU
In the PAST (ijiildhood and adolescence) and PRESENT (adulthood & recently):
PAST PRF5FNT
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L J ^ l llPSSPF APPETITF
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f TTHOUGHTS NOT YOUR OWN
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MRAPED SOnEPNE
Page *6

*18 APPENDIX B

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I N THE U N I T E D STATES
V A V T - H A B I N E CORPS COURT OF M I L I T A R Y
U N I T E D '

C a r l W.

S T A T E S .
Appeilee

THARPE

(b
Corporal
(E-4)
)U. 5. M a r i n e Corps,
Appe11 an t
(6
)

REVIEW

AFFADAVIT
OF
MICHAEL J . KEEGAN
CAPTAIN. U. S. MARINE CORPS

3, C a p t a i n M j c h a e l J. Xeegan. U. S. M a r i n e Corps, s t a t e t h a t the
f o l 1 o w i n g f a c t s a r e t r u e t o t h e b e s t o f my knowledge and b e l i e f :
I f i r s t met C o r p o r a l Tharpe on 6 J u l y 1989, when I i n t e r v i e w e d h i m
a t t h e b r i g aboard Camp P e n d l e t o n , C a l i f o r n i a .
At t h a t t i m e , I
s p e c i f i c a l l y asked h i m t o t e l l me a b o u t e v e r y o n e he had spoken t o on
Okinawa because I was aware t h a t he had made a d m i s s i o n s t o b o t h a g e n t s
of t h e Naval I n v e s t i g a t i v e S e r v i c e on 14 June 1989 and h i s w i f e i n
l e t t e r s and t e l e p h o n i c a l l y . At no t i m e d i d C o r p o r a l Tharpe ever a d v i s e
me t h a t he had spoken t o a c o u n s e l o r a t t h e b r i g i n Okinawa. The f i r s t
t i m e I was made aware of the P r i s o n e r ' s Summary C o n t i n u a t i o n Sheet
c o n t a i n e d i n A p p e l l a n t ' s A s s i g n m e n t of E r r o r was on 23 J u l y 1991 when
Government A p p e l l a t e Counsel a d v i s e d me of i t s e x i s t e n c e .
Even i f I had known of t h i s i n f o r m a t i o n . I would n o t have used i t
a t t r i a l because i t w o u l d have been q u i c k l y
. easily discredited
by t h e government and used as a g g r a v a t i o n a^
s i C o r p o r a 1 Tharpe.
C o r p o r a l t h a r p e was e v a l u a t e d by p s y c h i a t r i s t s and p s y c h o l o g i s t s on
six
(6) d i f f e r e n t o c c a s i o n s between September, 19BG and September,
1989, n e v e r i n any o f t h o s e s e s s i o n s d i d he make any of the same
d r a s t i c c l a i m s t h a t he made i n t h e P r i s o n e r ' s Summary C o n t i n u a t i o n
S h e e t . To b r i e f l y summarize h i s s t a t e m e n t s r e g a r d i n g h i s y o u t h and
sexual experience i n those sessions:
1) 6 September 1986, c o u n s e l e d by Dr. Faye G i r s c h ,
c l i n i c a l and f o r e n s i c p s y c h o l o g i s t , c i v i l i a n , a t t h e b e h e s t
of t h e d e f e n s e p r i o r t o C p l . Tharpe'K f i r s t c o u r t - m a r t i a l .
D u r i n g t h i s s e s s i o n , Cpl Tharpe s t a t e d t h a t he was e s s e n t i a l l y
r a i s e d by h i s g r a n d m o t h e r and was ' s p o i l e d ' as « c h i l d . He
f u r t h e r s t a t e d t h a t h i s f i r s t s e x u a l e x p e r i e n c e was a t age 17,
with a g i r l f r i e n d .
These documents were used by t h e defense t o
o b t a i n clemency and so were a v a i l a b l e t o the government.
2) B September 1986, s e l f - r e f e r r a l t o USNH Camp
P e n d l e t o n f o r d e p r e s s i o n o v e r p e n d i n g c o u r t - m a r t i a l . Cpl Tharpe
s t a t e d t h a t h i s . p a r e n t s had been d i v o r c e d s i n c e h i s b i r t h . Cpl
Tharpe a l s o s t a t e d he was u p s e t because someone bad 'accused
h i m of mo1es t i ng h i s d a u g h t e r 2 months ago b u t t h a t an exam
failed to substantiate that allegation.*
(Cpl Tharpe pleaded '
g u i l t y t o m o l e s t i n g Honeye W a l c o t t b e g i n n i n g i n June 1985)
T h i s r e p o r t was i n Cpl T h a r p e ' s m e d i c a l r e c o r d .

"19

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3) 24 Seplember 1986, R.C.M. TOG e x a m i n a t i o n c o n d u c t e d
in c o n j u n c t i o n w i t h the c o u r t - m a r t i a l .
C p l Tharpe s t a t e d t h a t
h i s ' p a r e n t s were n e v e r m a r r i e d and t h a t he was r a i s e d by h i s
grandmother. Although n o t i n t h e r e p o r t , i n the d o c t o r ' s notes
i t says C p l Tharpe s t a t e d t h a t when he was t e n he knew o f o r
saw an i n c i d e n t i n w h i c h some c o u s i n s r a p e d an a u n t and h e r
d a u g h t e r s . C p l Tharpe w e n t on t o s t a t e t h a t h i s f i r s t e x p e r i e n c e
w i t h sex was when he was between t h e ages o f I T and 18, w i t h
a girlfriend.
The d o c t o r ' s n o t e s a l s o i n d i c a t e t h a t C p l T h a r p e
i n f i l l i n g o u t a l l t h e t e s t documents h a d a t t e m p t e d t o ' f a k e
bad' i n a cone i ous e f f o r t t o be seen as c r a z y and so m i t i g a t e
h i s c u l p a b i l i t y . T h i s r e p o r t was used i n C p l Tharpe's f i r s t
trial.
4) 5 August 1988. s e l f - r e f e r r a l t o USNH Camp P e n d l e t o n
for depression.
Cpl T h a r p e s t a t e d t h a t he was r a i s e d
p r i m a r i l y by h i s g r a n d m o t h e r , b u t r e p o r t e d good r e l a t i o n s w i t h
b o t h p a r e n t s . Cpl T h a r p e r e p o r t e d an e s s e n t i a l l y normal
childhood.
T h i s r e p o r t was i n Cpl T h a r p e ' s m e d i c a l r e c o r d .
5) D u r i n g a l l o f 1987 and p a r t o f 1989, Cpl Tharpe was
a t t e n d i n g c o u n s e l i n g s e s s i o n s w i t h t h e F a m i l y Advocacy p r o g r a m
a t Camp P e n d l e t o n , i n c o m p l i a n c e w i t h h i s agreement f r o m h i s
f i r s t c o u r t - m a r t i a l . D u r i n g t h i s t i m e , he was c o n t i n u i n g t o
m o l e s t h i s s t e p - d a u g h t e r and never a c k n o w l e d g e d i t o r s o u g h t
h e l p f r o m h i s c o u n s e l o r s . The c o u n s e l o r s were a v a i l a b l e t o
t e s t i f y . C p l Tharpe a l s o never r e l a t e d t o them a n y t h i n g
remarkable about h i s p a s t .
6)
18 and 20 J u l y 1989. R.C.M. TOS e x a m i n a t i o n . C p l
Tharpe s t a t e d he was r a i s e d by h i s g r a n d m o t h e r , was a good
s t u d e n t i n s c h o o l , a f r a i d o f h i s f a t h e r , had m i n i m a l c o n t a c t s
w i t h h i s m o t h e r , d e n i e d any s e x u a l r e l a t i o n s h i p s d u r i n g h i s
developmental years, s t a t e d that h i s f i r s t s e x i i ! r j l a t i o n s h i p
was w i t h a g i r l f r i e n d a t age I T . T h i s r e p o r t woulu have been
a v a i l a b l e f o r use by t h e government p u r s u a n t t o MRE 302 h a d I
a t t e m p t e d t o use t h e r e p o r t f r o m Okinawa.
Tl
18 September 1989. C p l Tharpe i s examined by Dr.
B r u c e S t u b b s . Cpl T h a r p e d e n i e d he had e v e r been abused as a
c h i l d , s t a t e d t h a t he h a d engaged i n m u t u a l f o n d l i n g w i t h g i r l s
h i s own age d u r i n g h i s y o u t h , and t h a t h i s f i r s t r e a l s e x u a l
e x p e r i e n c e was w i t h a g i r l f r i e n d a t age I T . I f Dr. S t u b b s had
been c a l l e d t o t e s t i f y , he would have s t a t e d under c r o s s e x a m i n a t i o n t h a t C p l T h a r p e was n o t amenable t o t h e r a p y a n d
t h a t c o n f i n e m e n t was n e c e s s a r y t o p r e v e n t h i m f r o m c o n t i n u i n g
to molest c h i l d r e n .
The r e c o r d s o f a l l t h e s e c o u n s e l l i n g s e s s i o n s , c o p i e s o f w h i c h were
p r o v i d e d t o A p p e l l a t e D e f e n s e Counsel i n September 1990. c l e a r l y
i n d i c a t e t h a t C p l T h a r p e ' s c r e d i b i l i t y and v e r a c i t y i s s u s p e c t .
More
i m p o r t a n t l y , a s s u m i n g , a r g u e n d o t h a t I had known about t h e s t a t e m e n t s
t o t h e c o u n s e l o r on Okinawa, I would n o t have used them as some t y p e o f
m i t i g a t i o n . T h a t would have opened t h e door f o r t h e p r o s e c u t i o n t o
use a l l o f h i s o t h e r s t a t e m e n t s w h i c h , t a k e n a l l t o g e t h e r , w o u l d have
n e g a t e d any r e h a b i l i t a t i o n p o t e n t i a l we m i g h t have o t h e r w i s e been a b l e
t o show. I n my j u d g e m e n t , t h e b e s t course o f a c t i o n a t t h a t t i m e was

*20

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t o f o c u s away f r o m a l l h i s p a s t a t t e m p t s a t t h e r a p y and t o s t r e s s h i s
f e w good m i l i t a r y t r a i t s ^ h i s remorse a n d . ^ i s . w i l l i n g n e s s t o s^ek h e l p .

t^ITHESS t h e f o l l o w i n g s i g n a t u r e t h i s 3 1 s t day o f J u l y , 1991,

I ^ i t h t h e U n i t e d S t a t e s Armed
At q u a n t i c o , V i r g i n i a

Forces

I , M a j o r Ronald t . R o d g e r s , t h e u n d e r s i g n e d o f f i c e r , do h e r e b y
c e r t i f y t h a t on t h i s 3 1 s t day o f J u l y , 1991, b e f o r e me, p e r s o n a l l y
a p p e a r e d C a p t a i n M i c h a e l J . l^eegan, USMC, 016508^2^, whose home
a d d r e s s i s q u a r t e r s e44258, MCCDC, q u a n t i c o , V i r g i n i a 22134, and who
i s known t o me t o be a C a p t a i n i n t h e U. S. Marine C o r p s , and t o be
t h e i d e n t i c a l p e r s o n who i s d e s c r i b e d i n . whose name i s s u s c r i b e d t o ,
and who s i g n e d and e x e c u t e d t h e f o r e g o i n g a f f a d a v i t .
1 do f u r t h e r
c e r t i f y t h a t I am a t t h e d a t e o f t h i s c e r t i f i c a t e a c o m m i s s i o n e d
o f f i c e r o f t h e g r a d e , b r a n c h o f s e r v i c e , and o r g a n i z a t i o n s t a t e d b e l o w
i n t h e a c t i v e s e r v i c e o f t h e U n i t e d S t a t e s Armed F o r c e s , t h a t by
s t a t u t e no s e a l i s r e q u i r e d on t h i s c e r t i f i c a t e , and t h a t t h e same i s
e x e c u t e d i n my c a p a c i t y as a judge a d v o c a t e under a u t h o r i t y g r a n t e d t o
me by A r t i c l e 13G, UCMJ,

B^^^^^'^^^^^^
Ronald t . Rodgers
1T4 48 2198, M a j o r . USMC
OSJA, MCCDC, q u a n t i c o , VA,

'^21APPENDIXC

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0111

PRISONER'S SUMMARY CONTINUATION SHEET
I B AOHISSIOM SUHHtBT



r . l . t . t o

5
69061)

PII06RCSS SUWOBY

DlPklTwINT

JFB,

Camp Hansen,

1*51

MOMI

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MAMC

FPO S c a t c l e ,
MIOOII

Washington

o r

M I L 1 ' * * T

SCavlCC

USMC

93773-50)3

tlllllAl

(
b
)
(
6
)

T h a r p e , C a r i W.

b.
P r i s o n e r ' s V e r s i o n ( c o n ' t ) : s t a t e d he was f u l l y aware o f h i s r i g h t s , c i t i n g hr
needed t o t a I k , b u t d i d n o t v a n t t o t a l k about a n y t h i n g t h a t w o u l d compound h i s c u r r e n t
charges.
Tharpe a d m i t t e d t o h a v i n g * 3 y e a r , o n g o i n g , sexual r e l a t i o n s h i p w i t h h i s
stepdaughter.
T h a r p e i n d i c a t e d she knew him b e t t e r t h a n h i s w i f e .or anyone e l s e .
Tharpe
Tharpe s t a t e d he
s t a t e d she i s a " f o x " and more ma t u r e , i n many ways, t h a n her a g e .
pcuor n h y < . i r » i l y h u T t h i s s I e p d a j g h t e r .
He denied h a v i n g any s e x u a l r e l a t i o n s h i p w i t h
his
stepson.
2.

PRIOR OFFENSE
a.

Civil:

None s t a t e d .

(SV)

b.
Hi 1 i t a r y :
I n November 1979, Tharpe r e c e i v e d h i s I s t A r t i c l e 15 f o r v i o l a t i o n of
A r t i c l e 1 1 3 , s l e e p i n g on p o s t .
He was awarded f o r f l e t u r e o f $ 7 5 . 0 0 f o r 2 months.
In
O c t o b e r 1960, he r e c e i v e d h i s 2nd A r t i c l e 15 f o r v i o l a t i o n o f A r t i c l e 8 6 , u n a u t h o r i z e d
a b s e n c e , i n w h i c h he vas l a t e f c r d u t y . He was awarded a f o r f e i t u r e o f $150.00 f o r 1
mon'th.
I n N c v c r b c r 1986, T h a r p e r e c e i v e d a General C o u r t - M a r t i a l c o n v i c t i o n f o r v i o l a i i o
c f A r t i c l e ] 3 6 (5 s p e c i f i c a t i o n s ) , indecent exposure.
he was sentenced t o c o n f i n e m e n t a
h a r d l a b o r f o r 6 m o n t h s , re-luced t o E - l , f o r f e i t u r e o f $600.00 x 5 months, and a BCD.
Convening. A u t h o r i t y ' s A c t i o , , d a t e d 870220, the sentence i s approved a n d , except f o r the
p a r t o f the s e n t e n c e ex t enc i ng i j a bad-conduct d i s c h a r g e , w i l l be e x e c u t e d , but the
e x e c u t i o n of t h a t p a r t o f t nt sencence e x t e n d i n g t o a bad-conduct d i s c h a r g e and c o n f i n e ment i n e x c e s s o f 120 days i s suspended f o r a p e r i o d o f 16 months;
f o r f e i t u r e s i n excess
of $100 per month f c r 6 moths and r e d u c t i o n i n grade below E-3 and a u t o m a t i c r e d u c c i o n
to E - l . JS suspended f o r 12 rr.onth.3.

PERSONAL HISTORY

a.
C e n e r a l B a c k g r o u n d : Tharpe i s a m a r r i e d , 29 year o l d , b l a c k , m a l e , M a r u . .
He
i s t h e youngest of 2 c h i l d r e n , b o t h of whom were b o r n out of w e d l o c k . T h a r p e ' s p a r e n t s
were n e v e r r r . a r r i e d t o one a n o t h e r , however h i s f a t h e r was m a r r i e d and had s e v e r a l c h i l d ren.
T h a r p e s t a t e d hc was never a l l o w e d t o a s s o c i a t e w i t h h i s f a t h e r ' s w i f e o r c h i l d r e n ,
w h i l e he was g r o w i n g u p . T h a r p e ' s f a t h e r
i s a p p r o x i m a t e l y 62 y e a r s o l d and i s a
mortician.
He i s i n good h e a l t h and c u r r e n t l y r e s i d e s i n Camden, Tennesse. When t a l k i n g
about h i s r e l a t i o n s h i p w i t h h i s f a t h e r , Tharpe s t a t e d , "now, c a n ' t r e a l l y say, h e ' s my
f a t h e r . " T h a r p e ' s mother i s a p p r o x i m a t e l y 52 years o l d and works "wherever work i s
available."
H i s m o t h e r i s i n good h e a l t h and has never m a r r i e d . Tharpe d e s c r i b e s h i s
r e l a t i o n s h i p w i t h h i s mother a s , " t h a t ' s my mom, g r e a t . "
She c u r r e n t l y r e s i d e s I n Camden
Tennesse.
H i s s i s t e r i s a 32 year o l d d i v o r c e e , w h i c h has 6 c h i l d r e n . Tharpe d e s c r i b e s
t h e i r r e l a t i o n s h i p a s , " I Jove my s i s t e r , she loves me." Tharpe s t a t e s h i s s i s t e r does
not have " a l l her s c r e w s " w h i c h he b e l i e v e s she i s m e n t a l l y d i s t u r b e d .
Tharpe d i s c r l b e s
h i s c h i l d h o o d a s , " 1 can t e l l you t h i n g s you w o u l d n ' t b e l i e v e .
1 could w r i t e a book."
T h a r p e s t a t e d he o b s e r v e d numerous a c t s o f i n c e s t and s e x u a l r e l a t i o n s h i p s between humans
and h o r s e s .
He s t a t e d e v e r y b o d y i n h i s "community" were a l l r e l a t e d , d e s c r i b i n g members
of h i s f a m i l y as b e i n g , i n t c i b i e d .
Tharpe s t a t e d h i s f a t h e r m o l e s t e d and had an ongoing
sexual r e l a t i o n s h i p w i t h h i s s i s t e r .
Tharpe d i d not say he a c t u a l l y saw a n y s e x u a l cont a c t between h i s f a t h e r and h i s s i s t e r , but chat h i s s i s t e r had c o n f i n e d i n h i m , t h a t h i s
f a t h e r had " i n s e r t e d h i m s e l f " i n t o h e r .
When asked i f hc had been s e x u a l l y m o l e s t e d ,
Tharpe s t a t e d , " 1 d o n ' t t h i n k so, 1 d o n ' t remember." Vbcn asked i f any s e x u a l misconduct
bad been r e p o r t e d , Tharpe s t a t eo, "where I c ome f r o m , you d o n ' t r e p o r t these t h i n g s , i i

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OP*.

I M I

&/N OW-lF-OOl-*'?

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PRISONER'S SUMMARY CONTINUATION SHEET
123 ADHISSIOK SUHHiRY

D

O.Tt

rnr.»to

5
Otr*»Tf.tHT

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LtSI

Camp H a n s e n , FPO S e a t l e . Washington
W..r .

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. . M t - uiDDLt

3

890615

PROGRESS SUHKiRY

01 M I L 1

SI.»ICt

USMC

93773-5013
SSN

I.ITI.L

T h a r p e , Car 1 U .

(b) (6)

a. G e n e r a l B a c k g r o u n d ( c o n ' t ) : j u s t a way o f l i f e . "
The o n l y t i m e Tharpe d e s c r i b e d
any t y p e o f abuse i n v o l v i n g h i m s e l f , was when a s c h o o l t e a c h e r had p l a c e d h e r hand down
h i s p a n t s t o s e c 11 he h a d wet h i s p a n t s . Tharpe i n d i c a t e d he was o l d enough t o be
affected."
T h a r p e a l s o i n d i c a t e d he had a h i s t o r y o f bed w e t t i n g .
Tharpe s t a t e d he
had w i t n e s s e d s e x u a l c o n t a c t between h o r s e s and horses and humans. Tharpe s t a t e d t h e
o l d e r " c h i l d r e n f o r c e d t h e younger c h i l d r e n t o w a t c h and a l s o p e r f o r m sex. Tharpe
5 t 5 : e d hc f c i c he was p h y s i c a l l y abused by t h e o l d e r c h i l d r e n , as he was f o r c e d t o f i g h t
o t h e r c h i l d r e n , made t o h i d e behind a t r e e w h i l e b e i n g shot a t w i t h a BB gun, f o r c e d t o
have sex w i t h o t h e r c h i l d r e n h i s own age. Tharpe d e s c r i b e s h i m s e l f t o be " r a g i n g " i n s i d e
of h i m s e l f .
T h a r p e i n d i c a t e d he came f r o m a low income a r e a , f r o m t h e c o u n t r y , where
t h i n g s t h a t he has been d e s c r i b i n g i s j u s t a way o f l i f e .
Tharpe was m a r r i e d I n May
1985, i n L e a v e n w o r k t h , Kansas.
His w i f e i s s 35 year o l d dli^rcee.- She has 2 c h i l d r e n
by a p r e v i o u s m a r r i a g e . T h a r p e s t a t e d he knew h i s w i f e 2 1/2 y e a r s p r i o r t o t h e i r
marriage.
T h a r p e s t a t e d he met h i s w i f e , w h i l e she was s t i l l m a r r i e d .
Her husband was
i n t h e Army a n d was o v e r s e a s when they met, but she i n d i c a t e d t h a t t h e i r m a r r i a g e was
j u s t about o v e r .
H i s w i f e I s a C i v i l S e r v a n t , w o r k i n g f o r t h e government as a P u r i f l c a t i
Operator.
T h a r p e d i d n o t want t o t a l k about h i s w i f e ' s past h i s t o r y . Tharpe's stepson
i s 12 y e a r s o l d , w h i c h he d e s c r i b e s h i s re la t i o n s h i p w i t h him a s , " t h e same as my l a t h e r
and m i n e . " T h a r p e s t a t e d he does not t^a 1 k t o h i s s t e p s o n much and devotes most o f h i s
t i m e t o h i s s t e p d a u g h t e r , j u s t l i k e h i s f a t h e r i g n o r e d him and spent h i s time w i t h h i s
sister.
T h a r p e i n d i c a t e d he never had any sexual r e l a t i o n s w i t h h i s s t e p s o n , n o r d i d he
ever p h y s i c a l l y h u r t h i m . Tharpe's s t e p d a u g h t e r . i s f 0 yea rs o l d . Tharpe c a l l s h i s s t e p :!aughter, "Honey." T h a r p e d e s c r i b e s h i s r e l a t i o n s h i p w i t h h i s s t e p d a u g h t e r as, " g r e a t . "
Tharpe adir.jts t o h a v i n g a 3 y e a r , ongoing sexual r e l a t i o n s h i p w i t h h i s s t e p d a u g h t e r . He
s t a t e s she does " s p e c i a l t h i n g s " f o r him and t h a t sho knows him b e t t e r t h a n h i s w i f e .
Tharpe's w i f e a n d t h e i r c h i l d r e n l i v e i n V i s t a , C a l i f o r n i a . Tharpe s t a tes he does not
have a d r i n k i n g p r o b l e m , d e s c r i b i n g h i m s e l f as a p e r i o d i c , s o c i a l d r i n k e r .
When t a l k i n g
about h i s d r i n k i n g , T h a r p e i s vague and u n c l e a r , which h i s c o n t r a d i c t s h i m s e l f .
When
sked i f he e v e r c r i e d a n y d r u g s , Tharpe s t a t e d , " I w i l l
1 d o n ' t wane t o a n s w e r . "

ha Ve t o see what i s i n my SRB.

b. E d u c a t i o n a l Development: Tharpe i n d i c a t e d he q u i t s c h o o l a f t e r complet i ng t h e
1 t h g r a d e , because he q u i t b a s k e t b a l l and h i s grades s t a r t e d t o d e c l i n e .
He a l s o s t a t e d
ie was g e t t i n g b o r e d w i t h s c h o o l and he d i d not r e a l l y c a r e any more. Tharpe o b t a i n e d
"lis CED d u r i n g h i s 1 s t e n l i s t m e n t .
Tharpe d e s c r i b e d h i m s e l f as a "good s t u d e n t , " but
ran w i t h t h e w r o n g c r o w d . He was never suspended o r e x p e l l e d .
Tharpe s t a t e d he d i d not
l e t a l o n g w i t h h i s t e a c h e r s t o o w e l l , s p e c i f i c a l l y c i t i n g 2 f o o t b a l l coaches, s t a t i n g
-hey s c a r e d h i m . T h a r p e s t a t e d he got a l o n g w e l l w i t h h i s f e l l o w s t u d e n t s .
He p l a y e d
b a s k e t b a l l when he was a t t e n d i n g h i g h s c h o o l He was not o f f e r e d any s c h o l a r s h i p s , nor
j i d he a t t e n d any c o l l e g e .
c. O c c u p a t i o n a l Deve I opment •• P r i o r
d numerous j o b s as a f a r m hand and as a
l e v e r f i r e d a n d d e s c r i b e d a good w o r k i n g
l u i t h i s j o b i n t h e g r o c e ry s t ore t o j o i n

t o h i s e n t r y i n t o the M a r i n e Corps. Tharpe workstockboy i n a grocery s t o r e .
He s t a t e d he was
r e l a t i o n s h i p w i t h h i s s u p e r i o r s and p e e r s . He
t h e USMC.

^- H i I I t a r y S e r v i c e : Tharpe e n l i s t e d i n t o t h e Marine Corps i n January 1979. i n t h e
Delayed E m r y . Program, f o r a p e r i o d o f 4 y e a r s . . He e n l i s t e d t o " g e t away, g e t away from
Che a t m o s p h e r e 1 was i n . " Hc went on a c t i v e duty I n February 1979, when he went t o basic
t r a i n i n g a t MCRD, P a r r l s I s l a n d , South C a r o l i n a .
He completed b a s i c t r a i n i n g i n Hay

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PRISONER'S SUMMARY CONTINUATION SHEET
ffl' AOHISSID* SUMMARY

D

PROGRESS SUMMARY

p.It

P.tP.tlD

CtfAaTUtUT

JFB,
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Camp Hansen, FPO S e a t t l e , Washington
HiHt

Tha r p r ,



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890615

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St*VICl

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- <

W.

(b
)
(6
)

d. M i l i t a r y S e r v i c e ( c o n ' t ) :
19?9, on t i m e , w i t h no p r o b l e m s , a l t h o u g h he I n d l c a t e c
he d i d have some p r o b l e m s a c a d e m i c a l l y , b u t was n o t sent back I n t r a i n i n g .
Tharpe
f e l t he was an a v e r a g e r e c r u i t and p r o b a b l e w o u l d have g r a d u a t e d b a s i c t r a i n i n g w i t h a
m e r i t o r i o u s p r o m o t i o n , had he n o t had some problems w i t h academics* Tharpe was sent t o
Basic M i l i t a r y P o l i c e / C o r r e c t i o n s School a t f t . M c C l e l l a n d , Alabama, which he completed
on t i m e , w i t h no p r o b l e m s .
I n J u l y 1979, he was sent t o h i s 1st d u t y s t a t i o n a t / c .
l e s-.T""-""-? . K?"5?;, where h? was a s s i g n e d t o d u t i e s as a Correc t lonsman a t t h e D i s c i p l i n ary B a r r a c k s .
I n March 1981, Tharpe was sent t o Camp B u t l e r , Okinawa, Japan. I n A p r i l
1982, Tharpe was t r a n s f e r e d t o Camp L c j u e n e , N o r t h C a r o l i n a where he remained u n t i l January 1983.
He was t h a n t r a n s f e r r e d back t o Ft Leavenworth, Kansas where he remained unt i
F e b r u a r y 1967.
I n March 1987, Tharpe was t r a n s f e r r e d t o Camp P e n d l e t o n , C a l i f o r n i a .
Tharpe worked i n t h e C o r r e c t i o n s F i e l d t h e e n t i r e t i m e i n t h e Marine Corps, up u n t i l
March 1983, when he was g i v e n a General C o u r t - M a r t i a l f o r i n d e c e n t exposure, a t which
t i m e , upon c o m p l e t i o n o f h i s confinement he was t r a n s f e r r e d t o h i s p r e s e n t command. Hc
i s c u r r e n t l y on a 6 month u n i t deployment.
Tharpe i n d i c a t e d he g o t a l o n g v e r y w e l l w i t h
h i s s u p e r i o r s and p e e r s a t e v e r y command he was a s s i g n e d .
He emphasized t h a t h i s superi o r s always h e l p e d h i m out , k e e p i n g h i m f r o m g e t t i n g " f r y e d . " Tharpe s t a t e d h i s p r e s e n t
conur.and does n o t know him t h a t w e l l and t h a t
he has been a s s i g n e d t o them s i n c e February
1939.
Tharpe s t a t e d b i s C o r r e c t i o n s HQS was t a k e n away from h i m a f t e r he was c o n v i c t e d
by t h e g e n e r a l c o u r t - m a r t i a l and was sent t o Motor T r a n s p o r t a t i o n School a f t e r h i s
release f r e r the b r i g .
T f a r p c b e l i e v e s h i s average P r o f i c i e n c y and Conduct Marks a r e i n
the area c f ^ . 5 , 6.5. He s t a t e s he " l o v e s t h e Marine Corps" b u t does n o t want t o s t a y
, because of t h e d J s c j p I ; n a r > problems, f e e l i n g t h a t he c o u l d n o t do t h e Corps any

e.
F r t s c n i S i t u a t i o n and A d j u s t m e n t :
Tharpe i s c u r r e n t l y b i l l e t e d w i t h i n s e g r e g a t i o
on rraxjrr.urr. C u s t o d y , due t c t h e s e r i o u s n e s s o f t h e o f f e n s e and b e i n g s u i c i d a l .
Tharpe
a d m i t s t o h i s a I I edged c or, f i n i ng o f f e n s e , c i t i n g he i s g l a d he has been caught and i t
IS a l l over.
He does n o t h e l d any resentment toward h i s command o r t h e m i l i t a r y f o r
his present c i r c u m s t a n c e s .
He open I y s t a t e s he i s unsure o f h i s own s t a b i l i t y and t h a t
s u i c i d e i s a de I i n i t e p o s s i b i l i t y at t h i s p o i n t .
He s t a t e s i f he has h u r t h i s daughter
and cannot be o f any f i n a n c i a l h e l p t o h i s f a m i l y , he would end h i s p a i n . Tharpe d i d not
i n d i c a t e he had any immediate problems t o be t a k e n care o f , a l t h o u g h he was v e r y concerne
about how h i s s t e p d a u g h t e r was g o i n g t o h a n d l e h i s i n c a r c e r a t i o n .
EVALUATION AND PLANS'INC
aI m p r e s s i o n Based on P e r s o n a l H i s t o r y :
Tharpe appears t o be a v e r y u n s t a b l e ,
immature, and i r r e s p o n s i b l e i n d i v i d u a l o f below average I n t e l l i g e n c e .
His past h i s t o r y
does n o t r e v e a l t h a t he I s v i o l e n t or criminal ly d e v i e n t , but he was c o n s t a n t l y s u b j e c t
to i n c est and s e x u a l misconduct t h r o u g h o u t h i s c h i l d h o o d , t h a t i s n o t normal o r accepted
in todays s o c i e t y .
Tharpe f e e l s t h^t he i s " j u s t l i k e my f a t h e r . " He a d m i t s t o b e i n g
a srick i n d i v i d u a l who needs h e l p .
I t appears t h a t Tharpe i s v e r y much I n l o v e w i t h h i s
SI e p d a u g h t c r , w h i c h i s e v i d e n t by the «. ay he t a l k s about h e r and c o n s t a n t l y r e l a t e s back
tc- her when hc t a l k s .
That pt- vas p o M i e , c o o p e r a t i v e , and r e s p e c t f u l d u r i n g t h i s i n t e r view.
Content w o u l d u s u a ) I v g e t back t o h i s s t e p d a u g h t e r or h i s f a m i l y d u r i n g c h i l d h o o d ,
f f e c i ranged f r o m i n d i f f e r r n c t t o r a g e . T h a r p e , a t t i m e s , would c r y and shake, when
a l k i n g about h i s c h i l d h o c - d ant] h i s d a u g h t e r .
Tharpe appears t o be v e r y c o n c e r n e d , i f
:.'t j e a l o u s , when t a l k i n g about h i s s t e p d a u g h t e r .
Tharpe appeared t o be i n an i n d i f f e r e n
Ti-.od, which he does not c a r e about what w i l l happen t o him.
He would be t a l k i n g about

DD, :r.,1478

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0«T[

PRISONER'S SUMMARY CONTINUATION SHEET
[BtWISSIOR SUMMARY

f

Ot..MTw[N1 o r W I L I I . I V

t m i l k&MC

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no.

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(

a. Impressions Based on Personal History (con't): h i s family or his stcpdaugher,
appearing to be remcnic ing In a happy manner then was subject t obinstant anger. Tharpe
does not appear t o be a d i s c i p l i n a r y problem, but Is a d e f i n i t e )suicide risk and escape
risk.

(

b.

NueropsychIalrIc:

Tharpe Is schedule to see the Brig's 6)
Psychiatrist on 8906l6.

c.

Medica I ;

d.

Religious: Services are offered on a weekly basis.

No problems stated or noted at t h i s time.

e.

Cust od i a l :

Remain as i s , maximum custody, suicide r i s k .

f. Education. Training, and Work: Tharpe Is not e l i g i b l e to work and should remain
in segregation.
Unit has indicated he w i l l be transferred to CONUS in approximately 16
days l o stand t r i a l pending the out come of t h i s i n v e s t i g a t i o n . He has requested psychl a t r i c help, and has been referred to the Brig's Psychiatrist for evaluation.

\p
R. A. PUFNOCK
SSGT
USMC
COUNSELOR

DD,

1478

*25 WISS, Judge (dissenting):
I believe that the majority has overlooked certain critical issues that are presented in the two
questions before us and, as a result, has missed an
opportunity to provide decisional guidance on an
important question involving appellate substantive
and procedural rights. Therefore, I must dissent



,,M

S/N 0lO2-(.F-OOl-479

from that opinion and its affirmance of the decision
below.
I
Appellant faced life in prison on multiple
charges of despicable sexual misconduct over 3
years with his young stepdaughter who, at the time
of trial, was only 10 years old. After findings had
been entered on appellant's pleas of guilty, the only

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

33791

Pagell
38MJ.8
(Citeos:38M.J.8)

evidenoethatdefenseoounselpresentedinappellant's behalf during sentencing proceedingshad to
do with appellant's good military character—nothing at allto help explain his misconducts
as aberrant as it was.
Notwithstanding, defense counsel's sentencing
plea was that appellant needed extended therapy,
not extended conlinement. Not surprisingly,
however, the militaryjudge was not responsive and^
instead, sentenced appellant to 75 years' confinement (subsequently reducedby the convening authority^pursuanttoapretiialagreement^to 12 1^2
years).
Whenthe case reachedthe Courtof Military
Reviews appellate defense counsel reviewed the report ofapretrial sanity board that hadconsidered
appellant's mental status underRCM70^,Manual
for Courts^Martial,United States^ 1^84. This review led her to request trialdefense counsel's case
tile, in which she noticed several psychiatric and
psychological reports that contained references to
sexualdisorders and to appellant's possibly having
beenavictim of childhood sexual abuse.
Eor instance, just 3 days before this courtmartial,apsychological evaluation of appellant that
had beenprepared by Dr. Stubbs, apsychologist
who hadexaminedappellantatthe request of the
defense, contained this statement: ^^While he denied
conscious knowledge of any molest ofhis own
there is strong support both in the interview and the
testingdatatoforwardthehypothesis that hewas
the victimof some significant physical,emotional
and sexual abuse.^' A year earlier—on August 5,
1^88—the psychiatric department ofNaval Hospital,CampPendleton, did an evaluation on appellant
in which he had checked off ^^sexuallyabused^'as
one ofhis'^past^'experiences.
Appellate defense counsel found herself in a
quandary concerning what, ifanything, these ma
terials might suggest regarding effectiveness of trial
defense counsel's representation during the sentence proceedings.She was aware of the frequently

observed point that a significant factor in the background of most child sexual abusers is their own
obuso asachild. FN^Asonon-oxport in tho medic
al field, however, counsel felt unqualified to interpret much of the testing data which she came across
or to comprehend significant parts of the evaluation
reports or to understand what appeared to be inconsistencies in testing results.
FNI. See, e.g.. Note, A Matter of Trust: Institutional Employer Liability for Acts^ of
Child Abuse by Employees, 33 William &
Mary L.Rev. 1295, 1298 n.25 (Summer
1992) ("In general, abused children become abusive and dysfunctional adults."),
citing T. Reidy, "The Aggressive Characteristics of Abused and Neglected Children," Child Abuse: Commission and
Omission 471 (J. Cook and R. Bowles eds.,
1980); Hagen, Tolling the Statute of Limitations for Adult Survivors of Child Sexual
Abuse. 76 Iowa L.Rev. 355, 359-60
(Jan.1991) ("Sexually victimized children
often continue the cycle of sexual abuse in
their adult lives by marrying abusive
spouses or by victimizing their own children." (footnote omitted)), citing J. Renvoize, Incest: A Family Pattern 90 (1982)
(child incest victims have "strong likelihood" of themselves becoming adult incest
abusers); R. Flowers, Children and
Criminality: The Child as Victim and Perpetrator 92 (1986) (abused children become abusive adults).
Most importantly, she felt professionally unequipped to evaluate this material, some of which
seemed to suggest an important factor that might
have offered some psychological explanation for
appellant's deviant*26 conduct that, in turn, might
have had relevance in the determination of appellant's sentence—namely, appellant's own sexual
victimization as a child. Counsel was mindful of
her responsibilities as an officer of the court not to
raise frivolous issues that lack substantial founda-

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tion, as well asaconcern to not treat lightly an allegation of professional ineffectiveness against a
colleague. She believed that, unless she received
expert assistance inevaluating the medical materials, she would be unable to responsibly determine
whether she shouldraise, onappellant's behalf in
the Court of MilitaryReview,an issue questioning
the adequacy oftrial representation.
basedon her studyofthisCourt'sopinion in
^^^^^^,^^^^^^1^.^^^^^^, 25 MJ 270( 1987), t^^iT^
^^^7^t^t^^^7^^t^^^t^7^7^^^^77., 26 M J 104,^^7^^. ^^777^t^,

488 US 889, 109 SCt 220, 102 LEd2d211
(1988), and the opinion of the Navy-Marine Corps
Court of Military Review in ^777^^t^^ ,^^t^^^.^^ v.
^^^7^^^,31MJ 640, 643 n.1 (1990), counsel be
lioved that she "must first seek assistance Irom gov
emment resources in the local area.This^she^ pro
ceeded to do...." She began by calling the Com
mand Staff Judge Advocate at Naval Hospital,
Eethesda, "to see if anyone on the hospital staff
was qualified in child sexual abuse cases."She was
giventhe name ofonepsychologistwhothenwas
on staff at thehospital.However, after conversing
with that doctor and telling him "the non
confidential" aspects of the case, the doctor told
i^ounsel "that he did not feel qualified to give ^her^
the required assistance."He, inturn,gaveherthe
names of threepsychologists "whomhe felt were
more qualified."
The first of these three, because of her position
withalocalfoundation, informed counselthat she
was "not available for consultations...." Counsel
was unable to reach the second one when she telephoned. She did, however, have more luck with tho
third—Lieutenant Commander Vladimir Nacev,
who thenwasassignedtotheNavy'sFamily Advocacy Program in Washington, D.C. Defense
counsel makes these representations about Dr.
Nacev's potential contribution to her dilemma:
My discussions with LCDR Nacev have convinced me that he has sufficient experience in the
area of child sexual abuse to enable him to
provide the consultationlrequire. LCDR Nacev

informsmeheis available and willing toassist
mo, however, until he is allowedto reviewthe
confidential psychological testing data and reports, he is unable to answer my specific concerns.
Naturally, counselhadconcernsabout revealing confidential material—as well as engaging in
candid, confidential conversations with Dr.
Nacev—without the blessing ofsome authority who
couldassure herthat hor uso ofthis government
personnel resource was permissible and that their
exchanges would be confidential. ^7^^^^^ .^^^^^.^ 1^.
^^^^^^,.^^^^7^^,teaches the risks that defense counsel run in that regard, given the absence ofadoctorpatientprivilege in the Military Rules ofEvidence.
Accordingly, counsel prudently believed that
she neededadeterminative decision from an appro
priate authority that she was entitled to use o f a
government resource for expert assistance, .^^^25
MJ at 276, and that her use would be within the
scope of the lawyer-client privilege under
Mil.R.Evid. 502(a), Manual, .^T^^T^^. She reasonably
viewed this as preferrable to simply striking out on
her own, unsupported with official sanction, to
commandeer a government resource and run the
riskthat, later, an appellate court might conclude
that she acted improperly and,so, theconfidences
may be pierced. Alter all, this very Court has
warned that " a servicemember has no right
simply to help himself to government experts
and bring them into tho attomey client relation
ship, bypassing the proper appointing authorit
ies"25MJat276
Thus,sheturnedto theCourt of MilitaryReviewandasked foran order for expert assistance
andforconfidentiality. Shodidso,relyingontho
followinglanguagefromfootnote 1 ofthe^^^T^^^
opinionout of that same court lessthan3months
earlier:
^27Toobtain expert assistance prior to the referralof charges toacourtmartial,we believe that
although it may be cumbersome, defense counsel.

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ataminimum, mustdemonstrate to theconvening authority that (1) working through their own
resources, they have exhausted the possibilities
fbr Government assistance within their particular
geographic location, (2) establishthattheir fiir^
ther communicationwithapotential Government
expert assistant would necessarily compromise
client confidences, and (3) formally request of
the convening authority,with the proper showing
of necessity and relevance,that the expert assistance provided be rendered under an order of confidentiality. Once charges havebeen referredto
trial, application for expert assistance may be
made to the militaryjudge, followed by a defenserequestedcontinuance to prepare for trial
with that assistance.
Extrapolating from that language,the Court of
Military Review seemed to counsel to be the appro
priate authority from whom to seekadetermination
both that she was entitled toagovemment resource
for expert assistance and that her relations with that
resource would be confidential within the confines
of the lawyer client privilege.
The Court ofMilitary Review,however, denied
her motion after oral argument thereon and denied,
as well, her motion^ for reconsideration ^77 ^t^77^.
Thereafter,appellant petitioned this Court forawrit
ofmandamus to order the Court ofMilitary Review
to issue the requested order, but we denied the peti
tion without prejudice to raise the matter in the normal course of appellate review.
At that point, appellate defense counsel proceeded as best she could^ raising in her brief in the
Court of MilitaryReviewtheissueson which she
had sought expert assistance to evaluate whether
they should be raised and, if so, how. As is clear by
now, however, her efforts were unsuccessfnl, for
theCourtofMilitaryReview affirmed the convictions and the approved sentence.
11
In this Court, appellate defense counsel has
carried on with her efforts to convince appellate au-

thorities that appellant received inadequate representationduringhistrialpioceedings. As well,she
confesses that she is hampered in carrying her burdens in that regard by the absence of expert assistance, and so she has raised, too, the question
whether the Court of Military Review erred in
denying her motion for assistance and for confidentiality.Themajorityhasturnedacold shoulder to
both issues. In doing so, however, I believe that
several aspects of the opinion overlook certain realities of appellate practice from the viewpoint of the
practitioner.

Iwill write only briefiy as to the first issue,relating to effectiveness of representationduring the
trialproceedings,inpartbecauseIdonot believe
that that issue is fullyripefor our consideration, .^^^
this opinion, 777^t^, I minimally discuss this issue
only to the extent necessary to establish the framework within which to consider why appellate defense counsel believed itwas necessaryto obtain
expert assistance to help her in connection with that
issue.
Appellant claims that trial defense counsel was
negligent inhisrepresentation inthisrespect: Al
though counsel had in his case file documents—including the glaring report from Dr.
Stubbs,aportion of whichlquoted earlier (38 MJ
at 27)—that contained suggestions that appellant
had been the victimofchild sexual abuse, t^^7^77,^^^
t^^^^7^^77^^^77^7^^^7^77^^7^^^^^^^^^^^^^^^^^^

nor, of course,investigated their ^28 potential importance.
^777^^^,^^t^^^.^ V.
24 MJ 186
(CMA 1987). This focus on what is the precise
nature of appellant's complaint against his trial defense counselpointsupacritical defect in the majority's use here of the usual practice of not secondguessing reasonable tactical decisions by defense
counsel. It would seem that the decision not to pursue the potential use of appellant's childhood exper
iences—either because they ultimately could not be
documented satisfactorily or because medically it
wouldoffer insufficient explanationto motivate a

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lenient sentence—couldnot be rubber-stamped as
tactically reasonable when apparently ^^^7^2 1^^.^ 77^
t^^t:^7,^7^77 777t^t^^ due tounawareness of what wasin
tho case file.
FN2. The majority challenges my basis for
representing in this regard the nature of appellant's claim and, in tum, any basis of
support for that claim.38MJat 11. Asto
the former, it is quite clear from appellant's
brief: "Trial defense counsel's^7^7^7^^^^ 7^^^1^^777^^ ^77^ 777v^.^^7^t^^^ the issue of appellant's history of childhood sexual abuse
resulted in the military judge's unawareness of, and thus inability to consider, sig
nificant extenuation evidence. This constitutedunreasonableandineffectiverepres
entation."Final Briefat 10 (emphasis added). As to whether there might be any
support for suchaclaimwhenandif that
claim later becomes ripe for adjudication,I
simply point this out:In the affidavit that
he furnished to rebut the attack on his representation in the Court ofMilitary Re
view, trial defense counsel detailed his
view of the nature of and the vulnerabilit
ies to use of the psychological evidence
that was in his case file; yet he never mentioned the matter in that evidence that suggested appellant's possible childhood sexualvictimization.Thus,whilehe offers explanation for not using aspects of that evidence, his affidavit offers no suggestion that
he was even aware of the matter in that
evidence that appellant has focused on during his appeal.
I make these brief comments on appellant's
claim of ineffective assistance of trial defense
counsel only to bring into focus my differences
withthemajority's viewofthatclaimandtheappropriateanalysisof it.However,Idonotbe1ieve
that that issue isripefor decision now,in light of
appellate defense counsel's assertion that she
needed—and impliedly stilldoes need—expert as-

sistance upon which she can weigh the credibility
of such an issue and, if credible, upon which she
can frame and pursue such an assertion of error.
B
"It is well established that ... an accused is entitled to the assistance of an expert to aid iri the preparation of his defense" and that the standard for
when such an expert must be afforded is "upon a
proper showing of necessity." United States v. Burnette, 29 MJ 473, 475 (CMA), cert, denied, 498
U.S. 821, 111 S.Ct. 70, 112 L.Ed,2d 43 (1990); see
Ake V. Oklahoma. 470 U.S. 68, 105 S.Ct. 1087, 84
L.Ed.2d 53 (1985). Moreover, again on a proper
showing of necessity, expert assistance in preparation of an appeal may be ordered. See, e.g., United
States V. Curtis. 31 MJ 395 (Daily Journal CMA
1990).
It is imperative to state with clarity what tmly
is in issue here: Did appellate defense counsel make
a showing of necessity for expert assistance to prepare her appeal; and, if so, what was the proper response of the Court of Military Review? What is
770/ in issue is the need for an order of confidentially. Once a court of law orders that expert assistance is necessary to prepare a case, whether at trial
or on appeal, then the expert becomes a part of the
defense team and is as enshrouded by the lawyer-client privilege as is the lawyer herself See Uttited
States V. Toledo, supra at 275- 76; Mil.R.Evid.
502(a).
Recall, however, that appellate defense counsel's motion was not limited to an order for confidentiality, but it extended also to an order for provision of expert assistance. Without a proper authority's ruling that the defense is entitled to an expert,
counsel would not seem free to round one up,
whether that expert was " 'ready, willing, and able
to provide the required assistance.' " See United
States V. Toledo, supra at 276.
Showing of Necessity
In UnitedStates v. Burnette, 29 MJ at 475, this
Court stated: "As to the instant case, we agree that

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very little, if any, showing of necessity was required to entitle the defense to expert assistance in
the interpretation of drug analyses." I infer from
this that, at least where complex, technical, scientific evidence is at issue—material that is well outside
the usual ken ^29 of an attorney—"necessity" is
shown where that evidence is material to the case.
It may be that "necessity" in this connection is
like probable cause—it depends on a variety of
factors in the context of tho concrete case at bar. In
addition to the nature of the problem that Ijust
mentioned, some additional potentially infiuential
factors that come to mind includeagoodfaith representationofneedby appellatecounselasanofficer of the court, the bona fide appearance of an issue actually inthe case for whichthe expert isre
quested, andthereasonableness of therequest for
assistance(one measure of which might be whether
a^7^o.^ec77/o7^whohadsuchapieceof evidencein
his hand could easily call up an expert and ask what
it meant).
Ibe1iovothat,againsttheseguidelines, necessity was demonstrated to the Court ofMilitaryRe
view. Appellate defense counsel contended that the
issue in question and the material relating to it was
so technical and complex that she, asanonexpert
in the field, was unable to comprehend and evaluate
it.Only with expert assistance could she apply her
legal expertise to decide whetheralegitimate ap
pellate issue was presented and what would bethe
most successful way tolitigatethat issue. Without
it, she was shooting in the dark.
^e.^^077.^et^/^^C0777^/0^.^777/^7^^ .^eV7e^

It is the charge ofthe Court ofMilitary Review
to ensure due process on appeals pending before it.
Wheroashowing of necessity for expert assistance
in the prosecution of an appeal is made to the court,
it must take any and all reasonable stepsto assure
that such assistance is provided.

withtherequisite expert assistance. Counsel, with
such an order in hand, then has all sho needs to ob
tain such assistance and to ensure that the expert is
within the lawyer client privilege. If and when
counsel isrebuffedinherefforts to seekcompliance with the order, however, she may return to the
Court ofMilitary Review for appropriate reliefer
^777/et^,^/t^/e,^v 7^7^77^,28 M J 1 , 4 ( C M A 1989)
(Military judge ordered convening authority to
providedefensewithexpert assistance; whencon
vening authority refused, military judge abated the
proceedings in accordance with RCM 703(d)).
Ill
On the basis of this reasoning,Iconcludo that
the refusalof theCourtofMilitaryReview to en
sure necessary expert assistance, as appellate defense counsel had requested,compromised the abilityof the defense to properlyovaluate,frame,and
litigate the issue ofadequacy oftrial representation.
Iwould set aside the decision of the Court ofMilitary Review and remand the case to that court. I
would direct the court toissue whatever order was
appropriate consistent with these views inorderto
permit appellate defense counselto associate with
anexpert toassist her in adequately preparing her
appeal. Then, under Article66,UniformCode of
Militaryjustice, lOUSC^ 866,counsel could file
in that court whatever appellateissues that seemed
legitimate in light ofthat consultation, with ultimate opportunity for appellant to petition for review by this Court under Article 67, UCMJ, 10
USC^867
CMA,1993
U.S.v.Tharpo
38MJ.8
ENDOFDOCUMENT

Usually, this responsibility willbe satisfactorily discharged by promulgatinganorder directing
appropriate authorities to furnish defense counsel

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DoD5500.07-R
5-410. Related Rules
a. There is a prohibition on holding conflicting financial interests. See 5 C.F.R. 2635.403
(Reference (d)) in subsection 2-100 ofthis Regulation, 18 U.S.C. 208 (Reference (c)), and
5 C.F.R. 2640 (Reference (b)) in subsection 5-200 of this Regulation, above.
b. There are requirements regarding seeking outside employment. See 5 C.F.R.
2635.601-606 (Reference (d)) in subsection 2-100 of this Regulation and Chapter 8 of this
Regulation.
c. There is a prohibition on engaging in outside employment or activities that conflict with
official duties. See 5 C.F.R. 2635.802 (Reference (d)) in subsection 2-100 ofthis Regulafion.
d. There are limitations on certain outside activities such as receipt of outside earned income
by certain DoD Presidential appointees or non-career DoD employees, service as an expert
witness, participation in professional associations, teaching, writing, speaking, or fundraising.
See 5 C.F.R. 2635.804-808 (Reference (d)) in subsection 2-100 ofthis Regulation.
e. There is a prohibition on the receipt of honoraria. See 5 C.F.R., Part 2636 (Reference (q))
in subsection 3 -100 of this Regulation.
f. There are prohibitions on the misuse of official position such as improper endorsements or
improper use of non-public information. See 5 C.F.R. 2635.701-705 (Reference (d)) in
subsection 2-100 of this Regulation.
g. There are prohibitions on certain post-Government service employment. See Chapter 9 of
this Regulation.

SECTION 5. REFERENCES
5-500. References
(a)
(b)
(c)
(d)

Title 5, Code ofFederal Regulations, Part 2639, "Interpretation of 18 U.S.C. 209"
[TO BE PUBLISHED]
Part 2640 of^metitle 5, Code ofFederal Regulations, Part 2610, "Interpretation of
18 U.S.C. 208," current edition
Sections 201, 203, 205, 208 and 209 o f V ^ t i t l e 18, United States Code, Sections
201,203, 205, 208 a n 4 ^
Part 2640 of^metille, Code of Federal Regulations, Part 2635, "Standards of Ethical
Conduct for Employees of the Executive Branch," current edition

63
CAoMgg 7, y 7/77/20/7



IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
RULHVG:
v. ARTICLE 13, UCMJ

MANNING, Bradley E., PFC

U.S. Army,

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

DATED: 7 January 2013



On 27 July 2012, the Defense ?led a Motion to Dismiss for Unlawful Pretrial Punishment in
violation of Article 13, UCMJ, and the Fifth and Eighth Amendments to the U.S. Constitution.
Alternatively, the Defense motion requests l0 for 1 sentencing credit from 27 August 2010 20 April
20] 1. On 17 August 2012, the Government ?led a response to the Motion opposing dismissal and
sentencing credit except for 7 days for the periods of 6-1 1 August 2012 and 19-20 January 2012 where
the Marine Corps Brig Quantico (MCBQ) Brig Officer (Brig O) maintained the accused in suicide risk
(SR) status after a medical of?cer opined he was no longer considered to be a suicide risk, in violation of
Secretary of the Navy Instruction (SECNAVINST) l640.9C, Enclosure 1, paragraph Supplemental
briefs were ?led by the Defense on 24 August 2012 and by the Government on 7 September 2012. The
Court also ordered the Government to prpduce to the Defense approximately 1400 emails exchanged
among MCBQ command and staff and higher headquarters during the period of the accused?s
con?nement at MCBQ. On 26 November - 2 December, 5-7 December, and 10-11 December 2012, the
parties presented testimony, evidence, and argument regarding this motion. Having received the briefs,
heard the witnesses, and examined the emails and physical evidence presented by the parties, the Court
?nds and rules as follows:

FINDINGS OF FACT.
Governing Regulations and Relevant Provisions.
SECRETARY of the Navy Instruction SECNAVIST l640.9C (3 January 2006).

SECNAVINST l640.9C (3 January 2006) governed corrections policy for the Navy and the Marine
Corps during the period of the accused?s con?nement as a pretrial detainee at MCBQ from 29 July 2010
20 April 2011. Relevant portions of the SECNAVINST to this case are found in Enclosure (1), Chapter 4
and are summarized below. The SECNAVINST governs corrections policy for both post-trial prisoners
and pretrial detainees. As such, some of the provisions must be read to apply primarily to post-trial
prisoners. The term ?prisoners? includes both pre-trial detainees and post-trial prisoners.

1. Custody Classi?cation Guidance. The purpose of custody classification is to establish the degree of
supervision needed for control of individual prisoners. Custody classi?cation provides guidance for
supervision of prisoners and permits establishment of security measures consistent with requirements of
the individual. The SECNAV INST recognizes that there are wide variations in personality and mentality
among prisoners. Where there is fair and impartial treatment, prisoners generally present no serious
disciplinary problems. Some prisoners are deliberately uncooperative; some have personality difficulties
which make them chronic sources of trouble, such as the highly aggressive person or those acutely
depressed. Efforts must be made to identify all special cases, and control measures instituted to ensure

I ?g



. . 33798

the safety and orderly administration of the con?nement facility. An objective custody classi?cation
process which addresses the characteristics of the prisoners shall be used per reference the
Correctional Management Information System (CORMIS) electronic equivalent is also authorized.

2. Pretrial Detainee Custody Classi?cation. Pretrial detainees receive custody classi?cation as either
Maximum Security (MAX) or Medium In (MDI).

a. Maximum Custody (MAX) is appropriate for detainees who require special custodial
supervision because of the high probability of escape, [who] are potentially dangerous or violent, and
whose escape would cause concern of a threat to life, property, or national security. Ordinarily, only a
small percentage of prisoners shall be classi?ed as MAX. The following procedures apply to prisoners
classi?ed as MAX custody.

(1) Supervision must be immediate and continuous. A Department of Defense Form
(DD) 509, Inspection Record of Prisoner in Segregation, shall be posted by the cell door and appropriate
entries made at least every 15 minutes.

(2) They shall not be assigned to work details outside the cell.
(3) They shall be assigned to the most secure quarters.

(4) MAX prisoners shall wear restraints at all times when outside the maximum-security
area and be escorted by at least two escorts.

(5) On a case-by-case-basis, the brig of?cer in charge may authorize additional restraint
for movement of MAX prisoners.

b. Medium In (MDI) is appropriate for detainees who present security risks not warranting
MAX. They are not regarded as dangerous or violent. The following procedures apply to prisoners
classi?ed as MDI custody.

Supervision shall be continuous within the security perimeter and immediate and
continuous when outside the security perimeter of the con?nement facility.

(2) They shall not be assigned to work outside the security perimeter.

(3) They shall wear restraints outside the security perimeter unless the Brig directs
otherwise.

(4) They may be assigned dormitory quarters.

c. Differences between MAX and MDI Custody at MCBQ IAW SECNAVINST l640.9C.

At MCBQ, all detainees regardless of custody level live in individual cells in Special Quarters 1. MAX
detainees may not work outside the cell, MDI may. MAX detainees wear restraints at all times when
outside the maximum security area and must be escorted by at least two escorts. MDI detainees wear
restraints outside the security perimeter unless the Brig directs otherwise. Two or more staff members
must be present when MAX detainee is out of his cell. MAX detainees must be checked every 15
minutes with entries posted on a DD 509, Inspection Record of Prisoner in Segregation.

Classi?cation Criteria. Custody classi?cation shall be based on amount of supervision and
restraint each prisoner requires. All new prisoners except those speci?cally deemed to be serious



management problems (MAX), shall be assigned a MDI custody classi?cation during the reception phase.
Ultra-conservative custody classi?cation results in a waste of prisoner and staff manpower. Prisoners
shall be placed in the lowest custody classi?cation as soon as possible.

(1) Non-all inclusive factors considered in assessing higher custody classi?cations
(MAX or MDI): (1) assaultive behavior; (2) disruptive behavior; (3) serious drug abuse; (4) serious
civil/military criminal record (convicted or alleged); (5) low tolerance of frustration; intensive acting out
or dislike of the military; history of previous escape(s); (6) pending civil charges/detainer ?led; (7) poor
home conditions or family relationships; (8) mental evaluation indicating serious neurosis or
(9) indication of unwillingness to accept responsibility for personal actions past or present; demonstrated
pattern of poor judgment; (10) length, or potential length, of sentence.

(2) Non-all inclusive factors indicating lower custody classi?cations (MDO, MIN, or IC):
(1) clear military record, aside from present offense; (2) close family ties, good home conditions; (3)
offense charged is not serious; (4) apparently stable mental condition (responsible for own actions); (5)
indications the individual wishes to return to duty; (6) comparatively short sentence to con?nement,

. however length of sentence shall not be an overriding factor; (7) behavior during a previous con?nement;

(8) completion of, or active participation in, treatment programs or groups.

(3) The above factors are indicators, not ironclad rules. The Brig 0 shall consider
objective based overrides where applicable. An evaluation of all phases of the prisoner?s performance
shall be made prior to each custody change. The Court notes the SECNAVINST refers to factors
considered in higher v. lower custody classi?cation. Pretrial detainees are not eligible for Medium Out
(MDO), Minimum Custody (MIN) or IC. MCBQ considered lower custody classi?cation levels to
determine whether MDI rather than MAX custody was appropriate. Per the SECNAVINST, each staff
member has responsibility for passing infonnation concerning prisoners to the proper authority in the
con?nement facility. What seems to be a bit of trivial information may prove to be signi?cant when
coupled with other information on hand. Behavior and attitude of the prisoner in the berthing area, at
work, in recreation, and in a classroom provide a good overall indicator of problem areas and adjustment
progress. Continuous staff evaluation of each prisoner cannot be overemphasized.

3. Special Quarters (SQ). SQ is a group of cells used to house prisoners who have serious adjustment
problems, create anxiety or disruption among other prisoners in the general population, or who need
protection from other prisoners. SQ is a preventive management tool, not to be used as punishment,
except when the procedures for disciplinary segregation are followed. The SECNAVINST recognizes
that some prisoners require additional supervision and attention due to personality disorders, behavior
abnormalities, risk of suicide or violence, or other character traits. If required to preserve order, the Brig
or, in his/her absence, the Brig Duty Of?cers (BDO) or Duty Brig Supervisors (DB S) may authorize
special quarters for such prisoners for the purpose of control, prevention of injury to themselves or others,
and the orderly and safe administration of the con?nement facility. A hearing to determine the need for
continued administrative segregation of the prisoner shall be conducted. This hearing may be by board
action or by member of the con?nement facility appointed in writing by the brig of?cer and a written
recommendation to the Brig 0 will be provided within 72 hour of the prisoner?s entry into segregation.
All detainees in SQ shall be under continual supervision, sighted at least once every 15 minutes by a staff
member, visited daily by a member of the medial department and the Brig with daily visits by a
chaplain encouraged. As with MAX custody detainees, DD 509 (Inspection Record of Prisoner in
Segregation), shall be used to document visits. Prisoners assigned to SQ shall not have nonnal privileges
restricted unless privileges must be withheld for reasons of security or prisoner safety suicide risk).
For each 30 days a prisoner is retained in SQ, the board shall review and provide a recommendation
to the Brig 0, who will determine and certify the requirement for continuation in SQ. A segregated
prisoner shall be released to regular quarters as soon as the need for special segregation is passed.



a. Status. Although the SECNAVIST does not use the word ?status?, Navy and MC corrections
staff routinely used the word ?status? to de?ne whether a detainee is within the general population, in
administrative segregation (AS), or in disciplinary segregation (DS).

b. AS. The SECNAVINST de?nes AS to be the involuntary or voluntary separation for speci?c
cause, of select prisoners from the general prison population to SQ for purposes of control, preserving
order, prevention of injury to themselves or others, and for the orderly and safe administration of the
con?nement facility. AS must be authorized by the Brig or in his/her absence, DBO or DBS.

c. Suicide Risk (SR) and Prevention of Injury (POI) as AS. Both SR and POI are
subcategories of AS. POI includes prevention of injury to the prisoner and to staff. The decision to retain
a prisoner on POI rests with the Brig O. The SECNAVINST provides that for behavior and custody
problems, on rare occasions, it may be necessary to con?ne violent prisoners in cells without furnishings
to prevent them from injuring themselves or others. Such a measure shall be used only upon the speci?c
direction of the Brig O. A segregated prisoner shall be released to regular quarters as soon as the need for
special segregation is passed. There is no additional guidance or criteria in the SECNAVINST for POI
beyond that of AS nor is there a speci?c requirement for mental health provider input, however, the
SECNAVINST encourages medical of?cer participation in the board where practicable. For SR,
the SECNAVINST states in relevant part that prisoners who have threatened suicide or have made a
suicidal gesture but are found ?t for con?nement and prisoners with a history of suicide attempts or who
are considered suicidal may be placed in SQ under continuous observation while in the category of SR.
Such prisoners shall be immediately referred to the medical department/clinical servicesl mental health
department for ?irther evaluation and appropriate action. The Brig 0 may direct removal of the
prisoner?s clothing when deemed necessary. SR prisoners shall be physically checked every 5 minutes
and annotated on the DD 509. They shall not be permitted to retain implements with which they could
harm themselves. When prisoners are no longer considered to be SR by the medical of?cer, they shall be
returned to appropriate quarters. Thus, unlike POI where authority to continue the status vests in the Brig
O, the SECNAVINST gives the medical officer authority to detennine whether and when to remove a
prisoner from SR status.

d. and MAX Custody. Although there are required 15 minute checks for both AS
and MAX Custody, there is nothing in the SECNAVINST addressing whether MAX custody
classi?cation is required for prisoners assigned to SQ under or In contrast, paragraph
5105(e) states that assignment to DS does not automatically warrant a reduction to MAX custody and
paragraph 5105(e)(9) states that prisoners released from DS shall nonnally be placed in MDI custody.
The board reviews custody classi?cation and continuation in SQ as or as separate
determinations.

4. Classi?cation and Assignment Board. The board establishes an individual prisoner?s
custody classi?cation using objective classi?cation/reclassification procedures. When the board
determines custody classi?cations, it shall be composed of the Brig or designate, one senior staff
member from security and one from programs, and any other members appointed by the Brig 0. At
consolidated brigs, a mental health specialist and chaplain shall be assigned. Where practicable, and not
assigned to facility staff representatives from outside the con?nement facility such as a or
chaplain, may be appointed to the board. The board meets at least weekly. Prisoners may appear before
the board. The board uses the classi?cation criteria described above. The board also reviews
SQ prisoners every 30 days. The board may be reported in the Correctional Management
Information System (CORMIS) or DD Form 2711, Initial Custody Classi?cation; DD 2711-1, Custody
Reclassi?cation; and DD 2711-2, Custody Initial/Reclassi?cation Summary Addendum. When
immediate action is necessary, the Brig 0 may make changes in custody, classi?cation, etc. without board
action. Changes shall be part of the agenda for the next Board.



5. Time for Sunshine/Recreation Call. The SECNAVINST does not use the term ?sunshine call?. It
does use the term ?recreation? as a privilege. A privilege is de?ned as a bene?t afforded to prisoners over
and above minimum statutory requirements. Privileges can be removed for rule violations but only after a
due process hearing Discipline and Adjustment Board.) Privileges often include, but are not
limited to: commissary visits, phone calls, television, radio, movies, recreation, special events, and
special visits. In paragraph 5105(e)(5) addressing policies for DS, the SECNAVINST provides that a one
hour exercise period shall be granted daily when the prisoner?s behavior is satisfactory. The
SECNAVINST is silent regarding a minimum amount of exercise period for non-DS prisoners.

6. Visitation. The Brig may deny visitation for good cause, g. civilian or military protective orders,
legitimate rehabilitative interests, and good order, discipline, and security of the facility). Official, Press
and Civilian Visits requests for general visiting of the con?nement facility by groups or individuals
shall be coordinated with local public affairs of?ce (PAO).

MCBQ Base PCF Order P1640.lc, 1 July 2010.

The MCBQ policies largely mirror the SECNAVINST. Although signed by CWO4 Averhart on 1 July
2010 on or about the time of MCBQ transfer from level 1 to pretrial detention facility, some of the
policies appear to address post-trial detainees and functioning as a level 1 facility. Relevant differences
or supplements in comparison with the SECNAVINST are set forth below.

1. Paragraph 2006 - SQ. MCBQ has 36 single occupancy cells SQ1 consisting of 30 cells and SQ2
with 6 cells. All cells in SQ are 6? wide, 8? long, and 8? high. SQ cells permit inmates to converse with
and be seen by all staff members.

2. Paragraph 2007 - Exercise/Recreation and Training. Outdoor exercise areas for general population
will be provided, to ensure that prisoners receive at least one hour of exercise IAW the Plan of the Day
(POD) or PCF Supervisor or CO discretion. An additional exercise area is provided for those prisoners
within the population who cannot participate in general population recreation call due to custody or
current handling requirements. This area is contained within the locking gate. Prisoners in segregation
will receive recreation call IAW the POD and their handling letter.

3. Paragraph 6004(1) Classi?cation and Assignment. Maximum Custody. Prisoners requiring
special custodial supervision because of the higher probability of attempted escape due to potential length
of sentence or because they are charged with a dangerous or violent offense and escape would cause
concern of a threat to life or property. A prisoner may be designated as maximum custody because they
[sic] have been determined to pose a threat to their own safety or another individual?s safety. Ordinarily,
only a very small percentage of prisoners should be classi?ed as maximum custody.

4. Paragraph 6004(1l)(d)? Those prisoners who have either attempted or considered
committing suicide will be assigned to MAX custody. Medical Of?cer Approval Required: When
prisoners are no longer considered to be suicide risks by a medical officer they shall be returned to
appropriate quarters once the PCF Commanding Of?cer?s approval is given. The Court ?nds the PCF
Commanding Of?cer is the Brig at MCBQ.

5. Paragraph 6004(1l)(e). Those prisoners who have given an indication that they intend or
are contemplating harming themselves or others will be assigned MAX custody. [The Court notes that
this paragraph is not consistent with paragraph 6004(1) above which states that a POI prisoner may be
considered for MAX custody.]



6. Paragraph 8031(a) Authorized Visitors. States the same as the SECNAVINST.

Background - Prior to Accused?s Transfer to Theatre Con?nement Facility Kuwait on 31 May
2010.

1. The accused?s Basic Active Service Date (BASD) is 2 October 2007. He attended basic training at
Fort Leonard Wood, Missouri. On 28 March 2008, in his 9th week of training, while on hold over status
due to medical problems, the accused was command referred to mental health for ??ts of rage.? The
accused reported that he was increasingly anxious because of graduation in 5 days. He reported no prior
mental health history and that he was on no medications.

2. The accused graduated from basic training, completed advanced individual training at Fort Huachuca,
Arizona, and did a permanent change of station (PCS) to Fort Drum on 18 September 2008.

3. On 30 June 2009, the accused was command referred to mental health at Fort Drum for dif?culties
adapting to his unit. His Non-Commissioned Officer In Charge (NCOIC), MSG Paul Adkins, reported
that upon being confronted by his supervisor for missing morning formation, the accused began
screaming uncontrollably and clenching his ?sts with his eyes bulged and his face contorted. He
screamed three times, then stopped, caught his breath and collected himself. Neither the accused nor the
mental health provider found evidence of any signi?cant mental health problem. The accused was invited
to return only if and as frequently as he desired after JRTC.

4. On 19 August 2009, the accused self-referred to Fort Drum mental health reporting that he was
isolating himself, losing bearing, going downhill, crying and feeling vulnerable. He also reported that he
was going to ?break down? that day and described a process of bottling up emotions. The accused
further reported that he was not taking medications, had a history of family dysfunction growing up, and
had been on Lexapro in the past. The accused was assessed with an adjustment disorder with mixed
emotional features.

5. On 15 September 2009, the accused was command referred to the Fort Drum mental health clinic. The
mental health provider described the accused as presenting almost rigidly physically and emotionally
throughout the discussion and when no other probable cause for his being sent is developed, his demeanor
is reflected as perhaps being perceived as odd by others, though there does not appear to be anything
diagnosable about it. The accused reported that both parents were alcoholics and that since separating
from his mother he has had to rely on himself for survival and for that reason very carefully manages his
interactions with others. The accused was assessed with a personality disorder, not otherwise speci?ed;
mild with cluster characteristics, obsessive but not compulsive.

6. On 23 and 29 September 2009, the accused had follow up appointments at Fort Drum mental health
clinic. Discussion ensued about the accused using intellectualization to avoid contacts that may for some
reason be emotionally dif?cult for him. The 29 September 2009 assessment found the accused had
adjustment dif?culties typical of persons in their 205, which he was quite consciously exploring and
engaging. He was doing ?ne. The mental health provider anticipated one or two more meetings prior to
the accused?s deployment.

7. The accused deployed with his unit to Forward Operating Base (FOB) Hammer, Iraq on 11 October
2009.

8. On 24 December 2009, the accused was command referred to FOB Hammer Combat Stress Clinic for
a command directed evaluation due to anger outbursts over the past month where he shoved a chair and
began yelling after his NCOIC, MSG Paul Adkins, counseled him on the loss of a room key and yelled

0 . 33803

and ?ipped a table when counseled by two superiors. The accused reported that in 2005, he was
prescribed Lexapro by a family physician for problems he was experiencing with his step-mother and he
was referred to a physician by his aunt in 2007 due to anxiety attacks he was having and was again put on
Lexapro. With respect to his current situation, the accused reported he was working the night shift with
three other service members and that it was lonely. He reported persistent worry and anxiety about
oversleeping and being late for duty and also a hypersensitivity to criticism of his mistakes. The accused
was assessed with anxiety disorder NOS with cluster personality traits and insomnia. The accused
had a normal mental status examination.

9. The accused had follow up visits on 30 December 2009, 6 January 2010, 16 February 2010, 2 March
2010, 16 March 2010, 23 March 2010, 30 March 2010, and 6 April 2010. The accused discussed
problems he was having with a supervisor who was another E-4, his dif?culties in relating to people and
how that manifests itself, and his discomfort and guard when de?ecting issues too close to his ?comfort
zone.? The accused was reluctant to engage in interventions to address his discomfort with discussing
emotions or sharing personal feelings. The accused was anxious and remained focused on maintaining
his behavior and expecting a different outcome from other people.

10. Prior to 8 May 2010, the accused was not assessed to be at risk of harm to himself or others. On 8
May 2010, the accused was brought to the clinic by his NCOIC because he struck another Soldier in the
jaw. The accused disclosed to the mental health provider that he desired to be the opposite sex when
grown and that he was coming to grips with openly revealing that. He also reported that he lived openly
with a wig as Breana Manning for 3 days while on leave. Although not assessing the accused as a threat
for harm to himself or others, the mental health provider placed the accused on unit watch and
recommended that the command bring the accused to the Combat Stress Clinic dailyMay 2010, the accused had a follow up appointment at the Combat Stress
Clinic. He did not show for the 12 and 15 May 2010 appointments. The accused advised that he had
been transferred to the company and was doing clerical work that was beneath him. He also expressed
remorse for the assault and was concerned over what his future would be in the Army. The accused
remained on unit watch.

12. On 17 May 2012, the accused received a company grade Article 15 for the assault.

13. On 22 May 2010, the accused?s mental health provider opined that his emotional and behavioral
continue to cause impairment, the accused?s progress for rehabilitation was considered poor
and that a separation under Army Regulation (AR) 635-200 Chapter 5-17 be initiated.

14. On 26 May 2010, the accused had a follow up visit at the Combat Stress Clinic. He reported he
received an Article 15 for the assault and had his rank reduced. The accused remained on modi?ed unit
watch without access to a weapon.

15. On 28 May 2010, the accused?s mental health provider was advised that the U.S. Army Criminal
Investigation Command (CID) was investigating the accused for compromising secret information. He

was assessed to be at high risk of suicide, homicide or AWOL and remained on unit watch. The accused
was also required to be under guard by escorts. On the evening of 28 May 2010, the accused contacted a
colleague, SPC Rebecca Schwab, gave her pieces of paper, and asked her to check his email and
investments for him and to open the emails, read, and write down whatever was in them.

16. The accused was placed in pretrial con?nement at FOB Hammer Brig on 29 May 2010. He was
transferred to the Theater Field Con?nement Facility (TFCF) at Camp Arifjan, Kuwait on 31 May 2010.
The accused remained at TFCF until his transfer to MCBQ on 29 July 2010.

0 33804

TFCF Kuwait 31 May 29 July 2010.

1. On 1 June 2010, the accused?s initial custody classi?cation was Medium Custody. He was held in
administrative segregation in a cell in Echo-1 tent. On 2 June 2010, the accused collapsed in his cell.

2. The accused was subsequently moved into a general population 20 man tent with 3-6 other detainees.
Reveille was at 2200 and the day ended at 1300-1400. The accused participated with the other detainees
in outdoor recreation call and visits to the dining facility and the recreation tent.

3. On or about 9 June 2010, the accused announced in front of a group of detainees that he was gay after
he became agitated that they were making negative comments about gay people. When asked on 11 June
2010, by MACM Chris Moore if he felt threatened by the other inmates, the accused responded that he
didn?t feel threatened but ?they might feel threatened?. After the interview, the accused took deep breaths
as if having an anxiety attack. CAPT Balfour from Kuwait Mental Health Clinic arrived. The accused
started crying saying he was sorry. He subsequently advised cadre that he was gay and a woman. He
often became non- responsive to verbal communications and orders from cadre, followed by an anxiety
attack. During one incident he ran around in circles outside the yard before ?nally laying down on the
ground and refusing to stand up. The accused had to be carried back to his cell.

4. On 14 and 28 June 2010, the accused was seen at the Kuwait Mental Health Clinic to address concerns
with anxiety. He presented with disheveled hair, although otherwise unremarkable. There was no
evidence of current suicidal or homicidal ideation or intent.

5. On 30 June 2010, after an inspection by MA2 Murin, the accused became unresponsive to commands
and began yelling uncontrollably. MA2 Murin called CAPT Balfour, the TFCF Mental Health Officer.
Both of them ordered the accused into his cell. The accused refused. The accused then began screaming,
shaking, babbling, and banged the back of his head into an adjacent wall. The accused then was placed
into a cell in Echo-03 tent with constant watch while he continued to mumble and bang the back of his
head against the ?oor. The accused also knotted sheets into nooses.

6. On 30 June 2010, the accused was reclassi?ed to Maximum Custody/Administrative
Segregation! Suicide Watch 1 1.

7. On 3 July 2010, CAPT Iverson, the Commanding Of?cer, Expeditionary Medical Facility Kuwait
formally requested the Commander, Theatre Field Con?nement Facility to transfer the accused to a
facility with a separate locked and specialized ward or nurses, both of which
would be required to manage a case of this level of high risk and complexity for any extended amount of
time. CAPT Iverson described the accused?s condition as complex and appearing to be long tenn
requiring ongoing close monitoring (one to one observation). On 11 July 2010, the Commander, 15'
Annored Division and U.S. Division, Center sent a memorandum to Commander, Army Corrections
Command advising that the Commander, Third ordered the transfer of the accused from
TFCF Kuwait. Although the memorandum requested transfer of the accused to Mannheim, Area
Con?nement Facility, Mannheim, Germany, the accused was ultimately transferred to MCBQ on 29 July
2010.

8. On 5 July 2010, the accused was advised of the original charges preferred against him. Those charges
were: four speci?cations of Article 92, UCMJ violations and eight speci?cations of Article 134, UCMJ
violations to include one speci?cation assimilating18 United States Code (U.S.C.) Section 793(e), three
speci?cations assimilating 18 U.S.C. Section 1030(a)(l), and four speci?cations in violation of 18 U.S.C.

Section 103 The maximum sentence that could be imposed for the charged offenses would be

0 33805

reduction to the grade of E-1, total forfeiture of all pay and allowances, con?nement for 68 years, and a
dishonorable discharge.

9. On 10 July 2010, the Article 32 investigating of?cer scheduled the Article 32 investigation for 14 July
2010. On 12 July 2010, the accused was noti?ed. The Article 32 investigation was subsequently delayed
and did not begin until 16 December 2011.

10. On 30 June 2010, the accused was seen by at the Kuwait Mental Health Clinic (USMHK). The
providers, Drs. Weber and Hutcheson reported increased levels of regressive behavior by the accused to
include rocking himself, sitting on floor immobile despite requests that he move, and making nooses.
During the interview with the accused he stated that he didn?t intend to use the nooses but he wanted to
have the option of hurting/killing himself, even if he didn?t really do it. He wouldn?t deny current
suicidal ideations and stated he wouldn?t tell someone if he was thinking about doing it because that
would defeat the purpose. The accused stated he was sleeping poorly and was confused with mood
swings. He appeared thin and exhausted and sat almost the entire time with his knees pulled against his
chest and his arms hugging his chest, looking into space as he spoke. The mental health providers noted
the accused had chronic suicide ideations without any delineated plan or intent currently. The mental
health providers recommended the accused to remain in his cell with alert 1:1 watch. They also
proscribed Clonazepam for insomnia and Citalopram.

11. The accused had the following follow up sessions at USMHK:

a. On 1 July 2010, Dr. Weber saw the accused in his cell. His hair was disheveled, eyes red and
tearful, and displayed poor contact, staring off into the distance. The accused reported being scared
and hopeless. He again reported suicide ideation and plan without speci?c intent and that he would not
tell anyone if he did intend to attempt suicide. Dr. Weber recommended the accused be transferred to a
facility with more resources for higher care, evaluation, and treatment.

b. On 2 July 2010, the accused was seen by Dr. Richardson. In addition to the notes from 1 July
2010, this report noted that the accused was collecting several items that could potentially be used for
possible self harm such as metal. The accused remained ambiguous about discussing suicidal thoughts
stating he was still confused and uncertain. The accused stated clearly he would not contract for safety or
notify any staff if he decided to harm himself or had increasing suicidal ideation.

c. On 4 July 2010, the accused was again seen by Dr. Richardson and Weber. The accused?s
glasses had been returned. During the session the accused described having been seen by a
who thought he had obsessive compulsive disorder (OCPD) and possible generalized anxiety disorder and
attention de?cit hyperactive disorder (ADHD). When asked about suicidal ideations, the accused said
don?t know how I am supposed to feel.? And again declined to contract for safety or inform staff if he had
a suicidal ideation. The accused remained diagnosed elevated high risk of self harm, remained on suicide
watch 1:1, and recommended to have one book in his cell.

d. On 6 July 2010, the accused was again seen by Dr. Weber. He discussed reading ?Hunt for
Red October? and discussed his IQ range. He appeared less anxious but reported he considers suicide an
option and feels a sense of relief when he is able to have the option available if needed. He continued to
decline to contract for safety or inform anyone if he had a suicidal ideation.

e. The accused was seen by Dr. Richardson 8 and 10 July 2010. Although his anxiety appeared to
be super?cially calmer, he remained ambiguous about his condition and safety, stating on 10 July 2010 -
in response to a direct question about whether he wanted to kill himself - ?not right now? and ?it is
always an option.? Again he would not contract for safety.

0 33806

f. On 12 July 2010, the accused was seen by Dr. Richardson. He admitted he would like to die
and have it all be over and that he would take his life if he was sure he would die. He did not want pain
but did want deathhis situation and how permanent and long standing the
matter was, was settling in. The accused further stated he was at peace with the option of dying and that
he was a ?patient man.? The accused was found at heightened risk of self harm and suicide watch 1:1
remained.

g. On 14 and 16 July 2010, the accused had further follow up with Dr. Richardson. The accused
was aware there was consideration about moving him to another facility. He was frustrated and wanted to
be moved off suicide precautions. On 16 July 201 O, the accused said he would not hurt himself but
admitted that he tried to lift the pin to the cell door in the past and thought he could be successful. Dr.
Richardson believed the accused?s statements that he would not hurt himself were made to get off suicide
precautions.

h. On 19 July 2010, the accused saw Dr. Richardson and was noticeably irritable and frustrated,
stating he didn?t have control over his future. Dr. Richardson determined that although the accused stated
he would not kill himself, his reliability was poor. ?His statements are taken in context of his assessment
over a period of time. He stated previously that he had accepted his death, that he had no future, and
would kill himself if he knew he would die. He had added that he is a patient man. The accused?s more
recent statements seem to be in context of wanting a change in status and what he wears. There is little
depth to his conversation when talking about his emotions, such as when he disclosed his helplessness.
When interacting with others in the correctional community, the accused acted out and decompensated.
He also acted in an unreliable way (making 2 nooses, collecting other items that could potentially be used
for self harm), seemingly deceitful about that. The accused has a very fragile ego which could easily
decompensate in that similar environment at this time. In discussion with CAPT Balfour, there are
limited resources at this facility, that combined with the member?s unpredictability would create
vulnerabilities for his safety.?

i. On 21 July 2010, the accused saw Drs. Weber and Richardson. The accused?s anxiety and
frustration levels were improved. Essential elements of daily life including physical care, and
intellectual, social, and spiritual health. He was reading Tom Clancy novels and reported exercising and
eating well with an increasing abilities to ?nd meaning in moments. Accused remains at elevated risk.
The possibility of transfer raises his risk and is a transitional point for him. The accused was given a
provisional diagnosis of Depressive Disorder NOS requiring further time and observation to make a ?nal
diagnosis.

j. On 24 July 2010, the accused saw Dr. Richardson. He was angry and irritated with a focus on
trying to change his status and 1:1 watch. The accused stated he did not care about his safety in the sense
of relating to the quality of his life and was considering legal action. Dr. Richardson explained that safey
was the priority issue. In the recent past, when the accused was with the other inmates, there were rules
that he was expected to follow and did not, that by making one or two nooses, collecting things that could
potentially be used for self harm and that he did not do well emotionally in the community setting. The
accused stated he understood the reasons for placing him on suicide watch but he was a ?different person?
now. Dr. Richardson discussed reducing the restrictions on the accused with the C0 of TFCF. 15 minute
checks were the next step down. Both opined the risk was still too high to implement the restriction.

k. On 27 July 2010, the accused was seen by Dr. Weber who found him to be receptive and eager

to engage. The accused felt the medications were helpful and that he felt safe. In spite of the
improvement, Dr. Weber did not recommend decreasing to 15 minute checks on the accused because of

10



the setting and limited resources in Kuwait and because the accused still demonstrated a large amount of
mood lability, splitting, potential manipulation and low ego strength.

1. On 28 July 2010, Dr. Richardson prepared a summary of the mental health condition and
treatment of the accused during his time in con?nement at TFCF. The Assessment for Axis 1 was anxiety
disorder NOS, depressive DO NOS (Provisional, Probable Gender Identity Disorder (by
previous assessment).

12. On 29 July 2010, the Deputy Commander of the con?nement facility in Kuwait, LCDR Jeffrey Barr,
prepared a memorandum for record regarding the accused?s con?nement in Kuwait. LCDR Barr
observed that accused presented with normal behavior during intake and for the initial few days, but then
began to exhibit abnormal behavior and his mental state deteriorated. Ultimately the con?nement facility
had to place him on 24-hour suicide watch for the remainder of his detention there. Prior to being placed
on suicide watch, accused announced that he was gay when he overheard other detainees making negative
remarks about homosexuals, and during the days following that incident he told cadre that he was ?gay?
and ?a women He would often become nonresponsive to verbal communications and orders from
cadre, which was sometimes followed by an anxiety attack. During one incident, the accused ran around
in circles in the yard before lying down on the ground and refusing to stand up. Cadre had to carry him to
his cell. During a routine cell check, cadre found the accused curled in a ball on the ?oor with a bed sheet
tied into a noose next to him on the ?oor. Mental health professionals evaluated him on several occasions
throughout his con?nement. They found that he had mental issues, to include being ?emotionally de-
compensated,? and was at a high risk of harm to himself or suicide. They recommended that transfer to a
facility with adequate specialized resources and mental health professionals available to manage his case
over an extended period of time, which did not exist at the facility in Kuwait.

13. On 29 July 2012, the accused was transferred from TFCF to MCBQ.
MCBQ 29 July 2010 20 April 2011.

1. On or about June 2010, as a result of the Base Realignment and Closure Act of 2005 (BRAC 2005),
MCBQ was converted from a level 1 facility to a pretrial con?nement facility. Resourcing was cut 50%.
MCBQ was not structured to be a long-term pretrial con?nement facility. Post-trial prisoners could be
held at MCBQ for 30 days pending transfer. MCBQ was not resourced to house pretrial detainees for
more than 180 days (see Pretrial Con?nement Zero Based Review AB 280, volume 3 of 6, pages
00513119 and 00513073-88). Pretrial detainees housed at MCBQ after July 2010 were typically held
from two weeks to three months. MCBQ was not resourced for long term mental health or other
treatment programs. There were no organic mental health assets. Pretrial detainees at MCBQ were
assigned custody classi?cation of either Maximum (MAX) or Medium In (MDI). All pretrial detainees
regardless of custody level were housed in individual cells in Special Quarters 1 (SQI) that were 6? wide
by 8? long and 8? high. The accused was housed in the same sized cell as all the other pretrial detainees at
MCBQ regardless of custody level and status. During the 264 days the accused was in pretrial detention at
MCBQ, the brig averaged between 5 and 20 prisoners staying a length of two weeks to approximately
three-four months. No other prisoner during the accused?s tenure at MCBQ was on POI status longer
than a few weeks.

2. At the time of the accused?s arrival at MCBQ on 29 July 2010, CWO4 Averhart was the Brig Of?cer
in Charge (Brig O), Papapke was the Brig Supervisor, (then Blenis was the Chief of
Programs and the Senior Counselor. Blenis was the accused?s counselor. CAPT Hocter provided
mental health support for MCBQ as an ancillary duty. He was not an organic asset for the brig. He had
been providing mental health services to the brig since 2006 and was the mental health provider when
Marine Corps CAPT Webb committed suicide on or about Spring 2010.

11

0 33808

3. From 2010 to the present, prevention of suicide has been a top priority for the Department of Defense
and all of the military services. Suicide awareness and prevention training is mandatory across the
military services. MCBQ had a pre-trial detainee suicide, CAPT Webb, during the year before the
accused arrived. Many of the brig staff worked at the brig during that time. CAPT Hocter provided
mental health support to the brig. He did not recommend CAPT Webb to be placed on Suicide Risk (SR)
or Prevention of Injury (POI) status. CAPT Webb?s suicide was a traumatic event for MCBQ staff. At
the time of the accused?s arrival, MCBQ staff was hyper-vigilant regarding their duty to prevent pretrial
detainees from attempting or committing suicide. They also mistrusted CAPT Hocter?sjudgment as a
mental health provider because they believed he missed the indicators for suicide risk in the CAPT Webb
case. Their approach to maintaining the accused on POI status was to err on the side of caution and even
over-caution.

4. On or about 28 July 2010, the brig was initially noti?ed of the accused?s arrival. They were also
aware of the accused?s mental health history in Kuwait. Upon learning of the accused?s pending transfer
to MCBQ as a potential long-term pretrial detainee, Col Choike, Quantico Installation Commander, called
MG Horst, the accused?s General Court Martial Convening Authority, to advise him of his concerns about
lack of resources for long-term pretrial detainees.

5. On or about 28 July 2010, Col Choike held a staff meeting including Col Oltman, Security Battalion
Commander, LtCol. Greer, Quantico Deputy SJ A, CWO4 Averhart, MCBQ OIC, Quantico PAO staff,
and other brig staff to address management of the accused upon arrival. Quantico Senior
Mission Commander, did not attend the meeting but was aware it occurred. The brig staff as well as Col
Oltman, Col Choike, Lt Col Greer, PAO, and CWO4 Averhart were aware that the accused was a high
pro?le detainee who would bring media and other attention to Quantico brig and base. Col Oltman
ordered CWO4 Averhart to prepare a weekly report regarding the status of the accused. CWO4 Averhart
would forward the report to C01 Oltman who would then forward the report to C01 Choike.
was aware of the weekly reports and received them from Col Choike, although perhaps not routinely.
Weekly reports on the accused began on 10 August 2010 and continued until the accused was transferred
on 20 April 2011 to JRCF, with the ?nal weekly report prepared on 13 April 2011. The weekly reports
included Blenis? weekly counseling notes of the accused and any signi?cant events involving the
accused that occurred that week.

6. After the accused arrived at MCBQ, LtGen was engaged both with C01 Choike and Col Oltman
on the brig side and with CAPT Mary Neill, Commander Naval Health Clinic and CAPT Hocter?s
supervisor, on the mental health side. On 9 August 2010 at 13:42 LtGen sent an email to Col
Oltman and Col Choike with an attached 9 August 2010 New York Times article about the accused.
LtGen stated that with one suicide in the brig, the command needed to cover down on lessons
learned from that case. LtGen stressed the absolute necessity of keeping a close watch on the
accused, to include brig, medical, chaplain, and transport personnel. LtGen believed the accuseds
life has completely fallen apart making him a strong candidate (from LtGen perspective) to take
his own life. Col Choike responded that CAPT Neill agreed to prepare weekly mental health reports from
CAPT Hocter regarding the accused?s mental health status and to forward these reports to C01 Oltman and
Col Choike. The mental health status reports were in addition to the Weekly reports from the brig. On 9
August 2010 at 16:41 LtGen responded to C01 Choike ?Dan, Just want to be sure all know my
intent and concerns. Is there a secure mental health ward at Walter Reed? What medical authority makes
the call on his con?nement location as well as his mental ?tness? For how long are suicide watch in
skivvies and a blanket proper? Please make sure that there are [sic] procedures are correct, we have good
assumptions, and we are applying the regulations correctly.? On 9 August 2010 at 17:23, CAPT Neill
reported to C01 Choike that that CAPT Hocter opined that the accused no longer needed August 2011 and recommended changing the status to P01. On 9 August 2010 at 18:19, Col Choike

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forwarded the mental health status report to LtGen with an email stating he spoke with C01 Oltman
earlier who advised that the Brig preference was to maintain SR for a few more days. [The Court notes
that per the SECNAVINST the medical of?cer has authority to determine when to remove a prisoner
from SR status. See para 3c above.] On 9 August 2010, at 19:50, LtGen responded via email to C01
Choike asking ?With the status being changed by the medical authority, what is the logic for this
continuing other than OIC preference?? CAPT Neill, Col Minor, the SJA, and Col Oltman were cc?d on
these emails. None of the brig staff was cc?d. LtGen did not communicate directly with the Brig
or brig staff. He did not order brig of?cials to classify the accused in a particular custody classi?cation or
status. He did not in?uence brig decisions regarding the accused?s custody or classi?cation. His intent
was to ensure that appropriate regulations and procedures were being applied correctly with common
sense, that the accused was receiving appropriate mental health treatment, that brig staff and mental
health providers were coordinating, and that the accused was safe. Neither Col Choike nor Col Oltman
ordered the Brig or the brig staff to reach any particular conclusions regarding the accused?s custody or
status.

7. On the evening of 29 July 2010, the accused arrived at MCBQ and began the indoctrination phase.
While completing his inmate background summary's mental health section, the accused indicated that he
had considered suicide and wrote in the remarks section - ?Always planning, never acting.? The accused
was not ordered to ?ll in remarks or told what remarks to write. He wrote ?always planning, never
acting? of his own volition.

8. The accused scored a on the management factors for initial custody classi?cation. This would
result in a custody level of MDI. The Duty Brig Supervisor (DBS) did an override to initially classify the
accused as MAX Custody/SR. Also on 29 July 2010, the Classi?cation and Assignment Board
reviewed the classi?cation of the Accused. All three members recommend MAX custody with
indoctrination and SR status. The Brig O, CWO4 James Averhart, approved the recommendation of the
DBS and Board.

9. A 3 member Board met weekly to review the accused?s custody level and status. Blenis,
the accused?s counselor was normally the senior member of the board. gt Blenis prepared the
paperwork and recommended custody level and status before the board met. Board results were
documented in CORMIS but not Brig Form 4200.1 (Jan 11) until the review on 3 Januaiy 2011. After
that review, the board results were documented on Brig Form 4200.1 until the accused was transferred
from MCBQ. The Board consistently recommended that the accused remain in MAX custody and on POI
status. [The accused was placed on SR status on from 18-20 Jan 11 by CWO4 Averhart]. Both Brig Os,
CWO4 Averhart and CWO2 Barnes approved all of the board recommendations. The decision to
maintain the accused in MAX custody and POI status were based on similar factors, the accused?s history
of violence toward himself and others in FOB Hammer and Kuwait, his statements in Kuwait and on his
intake form that he was ?a patient man,? ?suicide is always an option,? and ?always planning, never
acting? indicating a never-ending time when the accused may be considering suicide, the nature of the
offenses charged, the length of potential sentence, poor family relationships, low tolerance for ?'ustration,
requirement for mental health treatment and on the accused?s guarded interaction and lack of
communication with his counselor and the brig staff. After 18 January 201 1, the board and the Brig
O, CWO2 Barnes added factors of disruptive conduct by the accused on 18 anuaiy 2011, his statements
to the board that his initial form ?always planning, never acting? may have been false and that his current
assurances to the board that he was not suicidal may also be false. After 2 March 2011, the Board
and the Brig 0 added factors of the accused?s 2 March 2011 statement to Papapke that he could use
the waistband of his underwear to kill himself, the increased stressors to the accused of receipt of new
charges including ?Aiding the Enemy? with a potential sentence of life without parole or death if a capital
referral, the accused?s almost complete withdrawal from communication with the brig staff, and his
removal of a number of visitors from his visitation list. After 6 April 2011, the Brig 0 also considered

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manipulative and false statements made by the accused to LTC Russell and increasing incidents of minor
violations of brig SOP.

10. CAPT Hocter was the mental health provider for the accused from 29 July 2010 - 18 January 2011
when he deployed. Because the accused was an Army Soldier, he consulted with COL Malone, a mental
health care provider from the Army to add credibility to his assessments of the accused. CAPT Hocter
visited the accused at least weekly and issued a 1 page form to the Board entitled ?Suicide Risk and
Prevention of Injury Assignment Review.? AR). The top line of the form stated ?The
following action is recommended for subject: Custody; Squad Bay, ob.? The ?Job? portion is where SR
or POI was recommended. The form then had 4 block checks: (1) whether the detainee poses a threat to
himself or not; (2) whether the detainee requires further mental evaluation; (3) whether the accused needs
to be segregated from general population or not; and (4) whether the detainee has low or average
tolerance of frustration/stress. Below the block checks are lines for the medical of?cer?s remarks.

CAPT Hocter submitted AR to the board on the following dates:

30 July Sep 10, Off minute checks from MAX custody suf?cient

15Nov 10- Off POI

Undated form between 24 September and 15 October 2010, COL Malone recommended the accused be
removed from POI

10 Dec 10 POI accused not suicidal but under great deal of stressJan 11- offPOI

The remarks column of CAPT Hocter?s AR forms were usually between 2 and 5 lines. The
remarks provided CAPT Hocter?s recommendation but not the reasons for his recommendation. Some of
the remarks were not legible. CAPT Hocter made scrivener?s errors in the block checks on 3 and 17
September 2010 misstating that the accused needed to be segregated from the general population and that
the accused posed a threat to himself. These errors con?rsed the board members and led them to
believe that CAPT Hocter was unreliable and was ?covering his six.?

1 1. CAPT Hocter provided mental health services as an ancillary duty for MCBQ since 2006. MCBQ
officials usually followed his recommendations with respect to status although they delayed
implementing them. In the accused?s case the Brig O, CWO4 Averhart delayed implementing CAPT
Hocter?s recommendations to remove the accused from SR to POI from 6-11 August 2010, a total of six
days and again delayed removal of the accused from SR to POI on from 18-20 January 2011, a total of
three. CWO4 Averhart did not implement any of CAPT Hocter?s recommendations to remove the
accused from POI status.

12. There was no meaningful communication between the Brig O, the Board or any of the Brig
staff and CAPT Hocter regarding the accused?s mental health condition and what, if anything, that
condition and his behaviors contributed to the necessity of maintaining the accused on POI status. In
addition, the brig staff mistrusted CAPT Hocter because they believed he provided no notice of his visits,
didn?t spend enough time with the accused to properly assess whether he was at risk of attempting
suicide, didn?t provide reasons for his recommendations in the ARs, and failed to assess the SR
indicators in CAPT Webb.

13. During the CWO4 Averhart/CAPT Hocter tenure, the accused remained in MAX custody and P01
from 27 August 2010 -18 January 201 1 against the recommendation of CAPT Hocter except for a three

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day period between 10 and 13 December 2010 where CAPT Hocter recommended the accused remain on
POI because of additional stressors.

14. From ll August 2010 18 January 2011, Blenis? counseling notes consistently described the
accused as courteous and respectful with average to above average work reports and no disciplinary
reports. The accused reported no suicidal feelings. He was cooperative with staff. The notes do not
re?ect that the accused complained about or asked about POI or MAX custody status. The notes did
re?ect that the accused was guarded in his communications with brig staff and preferred to be left alone in
his cell sitting on his rack. The following odd behaviors were documented in the counseling notes:

a. 29 September 2010 - on 23 September 2010 the accused tried to send a letter signed as Briana
Elizabeth Manning.

b. 20 October 2010 the accused prefers to spend his day sitting Indian style on his rack until
taps. Although he is authorized to have a book in his cell between reveille and taps, he has read only two
books since his arrival.

c. 25 November 2010 on 23 November 2010 Blenis overheard guards discussing strange
unorthodox conduct observed by the accused in his cell to include: sword ?ghting imaginary characters
in his cell; lifting imaginary weights in his cell as if displaying actual strain and exertion; and staring the
mirror and making faces at himself for extended periods of time. The accused was on occasion observed
licking the bars to his cell after taps. When questioned by guards, the accused acted as if he were just
woken up and asked staff members how long he was there.

d. 1 December 2010 accused observed dancing in front of the mirror in his cell.

e. 8 December 2010 accused observed posing and ?exing his muscles in front of the mirror in
his cell.

f. 15 December 2010 accused observed standing in the middle of his cell with arms spread out
and staring at the ?oor, dancing in his cell like rave dancing and playing peek a boo with himself in the


The behaviors observed by the guards were unusual and strange and were not commonly engaged in by
MAX prisoners. The brig staff and CAPT Hocter never engaged to discuss the strange behaviors
exhibited by the accused and what, if anything, that meant from a mental health perspective regarding the
accused?s need for POI status.

15. On 11 August 2010, the accused was downgraded from to The accused?s
special handling instructions provide for the following: the accused (1) will wear restraints and be
escorted according to custody classification when leaving his cell. The DBS will be noti?ed prior to the
accused moving outside SQ. Control Center will commence lockdown; (2) is authorized sunshine call,
television call, library call, to make and receive phone calls, Weekend/Holiday visitation in a non-contact
booth; and to speak to occupants of other cells in a low conversational tone; (3) is not authorized to lie on
rack between reveille and taps unless on medical bed rest, to keep any gear inside his cell with the
exception of: one rules and regulations, one mattress, and one set PT gear during hours of reveille, (4)
will receive toilet paper upon request only; (5) will receive one underwear and one POI blanket during
taps; (6) will eat in cell with metal spoon only, will have sick call, medication call, and chaplain visits
conducted at cell hatch with legal visits conducted at cell or in a non-contact booth, remain in cell during
?re drills, come to the position of attention in front of hatch upon entry of any commissioned of?cer and
will remain at attention until told to carry on; address all enlisted duty personnel by their rank at parade
rest and will be required to stand at the position of attention for count until carry on is sounded. The
following additional instructions also applied to the accused: (1) will receive correspondence material
from 2020 -2120 to include mail, legal papers, envelopes, DD 510 forms, one pencil or pen, and one book
(religious or non?religious); (2) will receive hygiene items in accordance with POD only; (3) will receive
a 20 minute sunshine call in the SQ recreation yard; (4) all gear will be removed from cell after Taps with

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the exception of one mattress, one underwear, and one POI blanket; (5) will wear a second chance vest
when leaving the facility on temporary absence at all times. Starting on 27 October 2010, the accused?s
correspondence time was increased to two hours from 1920-2120 and sweat pants and a sweat top were
authorized during periods of reveille. Starting on 10 December 2010, the accused was authorized one
hour of recreation call in the SQ recreation yard or inside recreation area in case of inclement weather.
Accused?s restraints were to be removed during recreation call. Library, TV call, and phones were
brought to MAX prisoners via a cart. The amount of TV call depended on the number of MAX prisoners
sharing the cart. The accused frequently received more than one hour of TV call. In addition, the accused
was required to be observed every 5 minutes either in person of from the guard tower. The accused was
occasionally asked how he was doing and was required to respond. He was not asked how he was doing
with each 5 minute check. On 15 September 2010, the Special Court Martial Convening Authority
COL Coffman, advised Col Choike that the Army required monitoring of the accused?s
phone calls, visitation, and mail. Privileged communications between the accused and his attorneys,
mental health providers, and brig chaplains were not monitored. Monitoring of detainee communications
and visits was not normal standard operating procedure (SOP) at MCBQ. On or about 1 December 2010,
the Brig ordered that any unusual behavior be logged in a logbook kept by the guards solely on the
accused. On or about 10 December 2010 the accused TV privileges were taken away because of news
reports that the accused had committed suicide. They were subsequently restored. On 15 December
2010, the accused was provided a safety mattress with a one-piece pillow included. On 2 March 2011,
the accused?s handling instructions were changed to remove all gear between reveille and taps except his
mattress and 2 P01 blankets. On 7 March 2011, the accused received a suicide smock ordered by HQMC
Security Division, Plans, Policies, and Operations (PSL).

16. The main distinctions in handling instructions between the accused while in SR status and while on
POI status are that while on SR status from 18-20 January 2011, the accused was not allowed to keep one
book and one set of PT gear shoes during reveille and not allowed to keep his eyeglasses unless reading
or moving outside the cell and was constantly observed (1 rather than at 5 minute intervals.

17. From 29 July 2010 10 December 2010, the Accused was allowed 20 minutes of exercise rather than
one hour because of his POI status not because of his MAX custody classi?cation. On 10 December
2010, after CAPT Hooter recommended that the accused receive additional exercise time, CWO4
Averhart changed the accused?s handling instructions to 1 hour of recreation/sunshine call without
restraints.

18. The accused received regular command visits. He told his chain of command he did not understand
why he was on POI status during every command visit except 7, 15, and 21 October and 12 and 10 and 26
November 2010. The accused consistently told his chain of command he was treated professionally by
the brig guards. He never asked the command to take any action to change his MAX custody or POI
status.

19. The accused was familiar with the DD 510 Request for Interview forms. On 17 November 2010, the
accused submitted three DD 5105 regarding an LES issue, an inquiry regarding command visits and
monitoring, and a request for a subscription to ?Scienti?c American? magazine. On 22 December 2012,
the accused submitted two DD 510 requests for books and an emergency phone call to his defense
counsel. The accused did not ?le any DD 510 requests regarding MAX custody or POI status until 7
January 2011. The accused also did not raise MAX custody/POI status with Blenis during the
weekly counseling reviews or with the Brig 0 during his visits to SQ. Blenis did not tell the
accused CAPT Hocter was recommending he remain on POI status during Oct/Nov 2010. The accused
also did not raise his status or otherwise complain about his treatment at the brig with any of
his visitors. The accused did not request to speak with other detainees or to eat outside of his cell. On 21
January 2011, the accused told the A board that he might need to be placed in protective custody. He

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did not complain about his pre-15 December 2010 mattress, his post 15 December 2010 mattress or his
POI blankets to the brig staff or, when asked about it, during a personal visit on 26 February 2011.
Defense counsel began raising the issue of the accused?s continuation on POI over mental health
recommendations via email on 29 November 2010. Defense counsel sent a memorandum to the Brig
on 5 January 2011 requesting reduction in the accused?s classi?cation from MAX to MDI and removal
from POI on the grounds that CAPT Hocter recommended the accused?s custody be downgraded from
MAX to MDI and recommended that the accused by removed from POI. On 13 January 2011, Mr.
Coombs ?led a Request for Release from Con?nement Under RCM 305(g) with COL Coffman, the
on the same basis. On 14 January 2011, the accused advised his chain of command of the 7
January 2011 DD 510 request to change his status that had not yet been acted upon by the Brig O. On 19
January 2011 the accused ?led a Request for Redress under Article 138, UCMJ. On 10 March 2011, the
accused submitted a rebuttal to the response to his original Article 138 Request for Redress.

20. CAPT Hocter recommended that the accused be removed from POI. He never recommended a
downgrade of custody from MAX to MDI. CAPT Hocter?s recommendations to remove the accused
from POI stated that 15 minute checks required by MAX custody would suffice. The custody
classi?cation decision of is a Brig decision based on the level of security required for a
particular pretrial detainee.

21. There was an increase in media, international and non-govemmental organization, and individual
member Congressional interest in the accused?s con?nement conditions on or about December
2010/January 2011 and concurrently with the accused and defense counsel complaints and ?lings about
the accused?s custody/status. The brig received numerous requests from outside entities who
were not on the accused?s approved witness list to come and visit him, to include Mr. Juan Mendez, U.N.
Special Rappateur and Congressman Dennis Kucinich. Such requests were directed to the Office of
Congressional Legislative Liaison Affairs, not the brig.

22. On 27 December 2011, LtGen called MGen Ary, Staff Judge Advocate to the Commandant of
the Marine Corps, stating that while he had the utmost con?dence in the way the brig is being run, he
wanted to be proactive to ensure the MC held the moral high ground when responding the media. The
subsequent emails among HQMC proposed outside visits to MCBQ by high level of?cials with
corrections expertise and development of fact sheets to compare MCBQ standards with
protocols.

23. On 14 January 2011, there was a meeting at MCBQ with the staff and CAPT Hocter and CAPT
Moore. Among the issues discussed was CAPT Hocter?s concern about the accused remaining on POI
status. He opined POI was not justi?ed from a medical viewpoint. CWO4 Averhart explained that the
medical component was part of the overall classi?cation assessment and the process was continually
evaluated. Col Oltman and CWO2 Barnes were present at the meeting. The meeting got heated between
Col Oltman and CAPT Hocter. CAPT Hocter told the brig staff to call POI something else if they wanted
to maintain the accused on that status for security reasons because it was not warranted for
reasons. Col Oltman told CAPT Hocter that the accused would remain in POI status and that if keeping
him in that status was required to get the accused to trial, that?s what they would do.

24. On 18 January 2011, the accused had an anxiety attack at recreation call. He was being escorted by
Tankersly, Cline, and GM1 Webb. All of the guards were doing their job properly. They
were not harassing the accused. The conduct of the guards had nothing to do with any protest that
occurred at MCBQ on or before 18 January 2011. The accused perceived the guards to be anxious so he
became anxious. The accused?s anxiety attack was consistent with his history at Fort Drum, FOB
Hammer, and Kuwait. The accused recovered and continued his recreation call without incident.
Tankersly and Cline were replaced for non-disciplinary reasons. After the accused returned to his

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cell, he was visited by Blenis, Papapke, and CWO4 Averhart. They asked him how he was
doing and questioned him about what happened during the anxiety attack. The accused grew frustrated

i when discussing the comparison between his anxiety attack and what happened in Kuwait. He put his
hands up by his head and began yelling such things as ?Why are you staring at me,? and ?Why are you

i yelling at me?? CWO4 Averhart placed the accused on ?special move, The accused initially
refused to give his clothes to MS gt Papapke causing CWO4 Averhart to order a Code Blue and order that

the accused be video-taped. The accused gave his clothes to Papapke and continued to argue to

both Papapke and Blenis that this anxiety attack was different than Kuwait, that he was not
suicidal, and that he should not be on POI. CAPT Hocter arrived and recommended the accused be taken
off SR and placed on POI status for 24 hours. CWO4 Averhart did not take the accused off SR until 20
January 201 1.

25. On 21 January 2011, after being questioned by ISG Williams following his command visit with the
accused on 14 January 2011, CWO4 Averhart acted on the accused?s DD 5 10 approving his appearance
before the 21 January 201 1 board. The accused also appeared before the board on 4 February
2011 and 25 February 2011. During his appearance before the board on 21 January 201 1, three days after
his 18 January 2011 anxiety attack, the accused was asked about his intake statement ?always planning,
never acting.? The accused advised the board that the statement may have been false. In response to a
question of whether the board should then believe his current assurances that he was not suicidal were
false, the accused replied ?they may be false.? These statements by the accused caused great alarm to
each of the board members and exacerbated their concerns that the accused may be patiently waiting to
harm himself.

26. On 24 January 2012, the brig changed command from CWO4 Averhart to CWO2 Barnes. COL
Malone replaced CAPT Hocter as the primary mental health provider for the accused following CAPT
Hocter?s 18 January 2011 visit with the accused prior to CAPT Hocter?s deployment. CWO2 Barnes and
COL Malone had a much more coordination regarding the accused?s mental health condition and a much
better personal rapport than did CWO4 Averhart and CAPT Hocter. Together, they revised the
Assignment Review mental health forms. CWO2 Barnes also implemented the Brig Form 4200.1 (Jan
11) to document the Board proceedings.

27. Beginning on 21 January 2011, COL Malone found that the accused had no current suicidal thoughts
or intent and that he was cleared to come off of POI status. On 28 January 2011, COL
Malone opined that the accused remained at moderate risk of self harm, had below average tolerance for
frustration and had a limited ability to express or understand his feelings. COL Malone opined that the
risks/bene?ts of POI are not further detrimental at this time. Starting on 18 February 201 1, COL Malone
changed the Recommendation Form to a Report of Behavioral Health Evaluation Form for the
board. This fonn is similar to the standard mental status examination form used for mental status
examinations. The form contained blocks to assess the accused?s behavior, level of alertness and
orientation, mood and affect, thinking process, thought content, memory and ?ndings as to the status of
the accused?s mental disorder, risk for suicide/self hann, risk for violence, whether the accused has a
behavioral disturbance, whether he needs to be segregated from the general population due to a treatable
mental disorder, and whether and how frequently the accused needed further examination. Rather than
recommending a particular status, COL Malone described the accused?s current mental health status in
the remarks. On 18 February 2011, COL Malone found the accused?s behavior normal, fully alert and
oriented, unremarkable mood and affect, clear thinking process, normal thought content, good memory
and found the accused?s mental disorder resolved, risk for suicide/self harm and risk for violence low,
that behavioral disturbance was not applicable, that the accused did not need to be segregated from the
general population due to a treatable mental disorder, and that he required routine further examination. In
the remarks section COL Malone opined that the accused?s anxiety disorder remains in early full
remission; he is tolerating medication taper off well; he understands risks and bene?ts of treatment and

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non-treatment; and that he responds well to intellectual stimulation. On 4, 11, and 18 March and 8 April
201 1, COL Malone checked the same boxes and remarked that the accused?s anxiety disorder was in
remission, he was completely off his medications, remains at low risk of suicide/self harm, and that he
would bene?t from intellectual stimulation.

28. On 6 and 15 April 2011, LTC Russell did the mental health assessment of the accused for COL
Malone. LTC Russell checked the same blocks as COL Malone, except he found the accused?s mental
disorder stable rather than resolved. After speaking at length with CWO2 Barnes, LTC Russell opined
that the accused?s presentation to him varied signi?cantly from that observed by the brig staff. LTC
Russell opined that the Brig O?s decision to maintain due diligence for self-harming behavior was not
unreasonable given the accused?s recent withdrawal from staff and his refusal to communicate with brig
staff to give them assurances of his safety if removed from POI. He further opined that the accused?s
behavior was likely to persist.

29. The withdrawal of the accused from his medication was not listed on the accused?s chart until 23
February 2011. CWO2 Barnes thought the accused was refusing his medication until she spoke with
COL Malone on 23 February 2011 and learned that because the accused had extra supervision, COL
Malone was comfortable taking him off his medications. CWO2 Barnes disagreed with COL Malone?s
decision to wean the accused off his medications because of the accused?s additional stressors and
uncertainty about his futurethe accused received notice of the current charges, including Aiding the Enemy, with
a possibility of con?nement for life without parole or death, if a capital referral. He also received Col
Choike?s response denying his Article 138 Request for Redress. The Marine Corps Base Quantico chain
of command wanted COL Malone available to see the accused to assess his mental health with the arrival
of these additional stressors. The accused was observed mumbling in his cell. COL Malone could not be
located and was on emergency leave. On 3 March 2011, CWO2 Barnes got in touch with COL Malone
who arranged to see the accused on 4 March 2011. The MCBQ chain of command was not happy about
this. This incident caused LtGen to fully engage with CAPT Neill to coordinate with the Army to
get additional mental health support for the accused and for MCBQ.

31. On 2 March 2011, shortly before taps, Papapke was advised by a guard that the accused did not
understand why he had to give up his clothes except underwear at night. Papapke spoke with the
accused who continued to insist he didn?t understand why all of the items are taken except his underwear
with the elastic band that is the most dangerous piece. The accused was chuckling brie?y as if the
conversation was absurd. Papapke told CWO2 Barnes of the comment. CWO2 Barnes ordered
that the all of the accused?s gear except one mattress and 2 P01 blankets be removed from his cell after
taps to include his underwear, shower shoes, and eyeglasses. CWO2 Barnes cited SECNAVINST para 4-
as authority to remove the accused?s underwear. This paragraph applies only to SR risk status
not POI. However, the Court ?nds that SECNAVINST paragraphs 4-14(a) and give authority to the
Brig authority to restrict privileges for prisoners in SQ when they must be withheld for reasons of
security or safety. This would include authority to remove clothing, to include underwear, in cases where
the Brig has reason to believe the clothing was necessary to be removed for security or safety reasons
for a period of time that is not excessive in relation to the legitimate Government interest in protecting
pretrial detainees from self-hann.

32. The proper mode of communication from a pretrial detainee to a guard when asking a question was to
address the guard by his rank and then ask the question. There was no requirement for detainees to refer
to themselves in the third person. The accused was aware of this through indoctrination. The accused did
not refer to himself in communications with staff in the person as re?ected during his 26 February
2011 personal visit when he asked ?LCpl, can I turn on the light??

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33. On the morning of 3 March 2011 prior to reveille, the accused?s clothes were not in his feed tray. He
stood at attention during count naked, without covering himself with his POI blanket, as was his normal
practice. The accused had never done this before. While in POI status from 11 August 2010 until 2
March 2011, the accused had his clothes removed from taps to reveille except underwear and shower
shoes. He stood for count covering himself with his POI blanket. The accused testi?ed that he attempted
to stand with his POI blanket covering himself and was told by a guard ?Is this how you stand at parade
rest?? The accused testi?ed that he requested clari?cation from the guard by asking ?LCpl, detainee
Manning asks if he has to put the blanket down.? He testi?ed that he received a ?yes? response and took
it as an implied task to drop the P01 blanket and stand naked at parade rest and then at the position of
attention during count. Nobody from the brig staff ordered the accused to stand naked at the position of
attention during count. The brig staff did not consider the incident significant until the 4 March 2011
New York Times Article entitled ?Soldier in Leaks Case Was Jailed Naked, Lawyer Says.?

34. On 3 March 2011 after count, the accused made a telephone call to Mr. Coombs. Mr. Coombs
maintains a blog on this case. On 4 March 201 1, the New York Times article was printed stating in
relevant part that lawyer for PFC Bradley Manning has complained that his client was stripped and
le? naked in his cell for seven hours on Wednesday.? The article quoted the following taken from Mr.
Coombs? blog. ?The Soldier?s clothing was returned to him Thursday morning, after he was required to
stand naked outside his cell during an inspection. This type of degrading treatment is inexcusable and
without justi?cation. It is an embarrassment to our military justice system and should not be tolerated.
PFC Manning has been told that the same thing will happen to him again tonight. No other detainee at
the brig is forced to endure this type of isolation and humiliation.? From 4 March 2011 20 April 2011,
the accused was ordered to relinquish all items from his cell except his suicide mattress and 2 POI
blankets. The accused was given a suicide smock to wear starting on 7 March 2011. There is no
evidence before the Court that the accused was ordered by anyone in the brig to stand naked outside his
cell at any time or to stand naked at any time after the morning of 3 March 201 1. On 4 March 201 1, the
accused?s clothes were in his feed tray prior to count. He was semi or completely dressed prior to
reveille.

35. On 4 March 2011, LtCol Wright from HQ MC, Law Enforcement and Corrections Branch, Security
Division Plans, Policies, and Operations (PSL), the proponent for SECNAVINST 1640.9, wrote an email
to C01 Oltman stating that it was the professional opinion at PSL that they had concerns about recent
decisions made by the Brig and that ?to take measures that are consistent with suicide watch but not
of?cially place that person on a suicide watch status is inconsistent with the way we are supposed to do
business.?

36. LtGen knew nothing of the new handling instructions regarding the accused until he read
about them in the New York Times on 4 March 2011. LtGen was not happy to learn about them
this way. He contacted Col Choike to relay his intent that any changes in the accused?s handling
instructions or assignment must be briefed to C01 Choike and passed on to LtGen before execution.
LtGen intent was to ensure he would be prepared to address political impact, media interest, legal
rami?cations, and senior leadership reaction to any changes in handling instructions. The guidance came
after CWO2 Barnes increased restrictions on the accused. There was no attempt by LtGen Col
Choike, or Col Oltman to prevent CWO2 Barnes from easing restrictions on the accused or to chill her
discretion in making custody or status determinations for the accused.

37. Prior to the 4 March 201 1 New York Times Article, LtGen was coordinating with HQMC,
HQDA, and the mental health chain of command to provide permanent mental health support both for the
accused and for MCBQ and for additional assets for MCBQ if it continued to serve as a defacto joint
regional Personnel Con?nement Facility (PCF). He was also coordinating PAO responses to queries

20



regarding the con?nement conditions of the accused and inviting visits from outside inspectors general
and of?cials with corrections experience to visit MCBQ to ensure that the brig was con?ning the accused
IAW properly IAW con?nement regulations and procedures. LtGen lynn?s guidance after 4 March
2011 to Col Choike was to ensure he was briefed before any changes to the accused?s handling instruction
occurred so he would be prepared to fully explain what occurred and why. LtGen did not intend to
in?uence the decisions of the Brig 0 regarding the accused?s custody, status, or handling instructions.
The Brig 0 did not perceive LtGen lynn?s guidance as a constraint on her discretion.

38. On 14 January 2011, LtGen ordered Col Choike to conduct a zero based review of MCBQ to
assess resourcing and viability of designating MCBQ as a Joint or Regional PCF with associated
funding and manpower. The review found in relevant part that MCBQ was not resourced to house long-
term pretrial detainees for more than 180 days and was not resourced to house high pro?le pretrial
detainees requiring maximum security and with complex mental health issues. The zero based review
further recommended that the brig policy provision changes: (1) the provision mandating detainees in
receive a custody classi?cation of MAX should be changed to provide that custody and status
evaluations be conducted separately; (2) clarify the authority of a Medical Of?cer to determine what
protective measures are necessary based on a mental health evaluation, and of a Brig to impose, or re-
impose, additional protective measures based on subsequent behavior; (3) establish separate SQ and
general population quarters; and (4) ensure that the Brig returns detainees to the appropriate conditions
or quarters when no longer considered to be suicide risks by a Medical Officer. The SOP should also
state that, absent additional factors, the Brig 0 may not place, or return, a detainee to SR status and
impose associated protective measures. Ultimately the zero based review recommended the con?nement
facility at MCBQ be closed.

39. On 20 April 2011, the accused was transferred to the Joint Regional Con?nement Facility (JRCF),
Fort Leavenworth, KS. He was classi?ed MDI and remains at the classi?cation level to date with one
disciplinary review board. JRCF does not have POI status.

40. After the accused?s transfer, HQMC, PSL sent guidance to MCBQ to ensure that custody and
classi?cation were separate determinations. As a matter of correctional practice, similar factors are
considered to determine MAX custody and P01 status.

The Law:

1. Article 13, UCMJ prohibits the imposition of (1) punishment prior to trial and (2) conditions of arrest
or pretrial con?nement that are more rigorous than necessary to ensure the accused?s presence for trial.
Prong one involves a purpose or intent to punish determined by examining the intent of detention of?cials
or by examining the purposes served by the restriction or condition and whether such purposes are
reasonably relate legitimate government objective. The second prong applies only when an accused is in
pretrial con?nement. Prong 2 examines whether conditions are sufficiently egregious to give rise to a
permissive inference that the accused is being punished or the conditions may be so excessive as to
constitute punishment. United States v. King, 61 MJ. 225 (C.A.A.F. 2005).

2. Under both prongs, the burden is on the Defense to show military of?cials intended to punish the
accused or that the restrictions imposed were excessive or otherwise not reasonably related to legitimate
government objectives. US. v. Harris, 66 M.J. 166 (C.A.A.F. 2008).

3. Sentence credit is the appropriate remedy for Article 13, UCMJ violations RCM 305(k). US. v.

Williams, 68 M.J. 252 (C.A.A.F. 2010). Dismissal is also a possible remedy that is rarely appropriate
and should be exercised only under the most egregious circumstances so as not to exonerate an accused

21





for reasons unrelated to guilt or innocence and thereby preclude the public?s interest in deterring the
commission of serious misconduct. US. v. Fulton, 52 M.J. 767 (A.F. Ct. Crim. App. 2000).

4. Conditions of con?nement relate to both ensuring the accused?s presence for trial and the security
needs of the con?nement facility. Military Courts should be reluctant to second-guess the security
determinations of con?nement of?cials. United States v. Crawford, 62 M.J. 411, 414 (C.A.A.F. 2006).
Maintaining security and order and operating the institution in a manageable fashion are peculiarly within
the province and professional expertise of corrections officials, and, in the absence of substantial evidence
in the record to indicate that the officials have exaggerated their response to these considerations, courts
should ordinarily defer to their expert judgment in such matters. Id. (quoting Bell v. Wol?sh, 441 U.S.
520, 540 n.23 (1979)). The test is (1) is there an intent to punish or stigmatize a person awaiting
disciplinary action; and (2) if not, were the conditions reasonably in furtherance of a legitimate non-
punitive objective? United States v. Starr, 53 M.J. 380 (C.A.A.F. 2000). The Court ?nds that
?reasonably? includes an analysis of whether restrictions taken by military officials are excessive in
relation to the legitimate government interest involved.

5. The Eight Amendment protection against cruel and unusual punishment does not apply to prisoners
who have not been convicted and sentenced - or in other words, punished. Pretrial detainees challenging
pretrial con?nement conditions as unlawful pretrial punishment do so via the Due Process Clause of the
Fifth Amendment to the U.S. Constitution. US. v. Bistrian, 2012 WL 4335958 (Third Cir. 2012). Like
Article 13, UCMJ, the Fifth Amendment Due Process clause protects pretrial detainees who have not
been convicted and sentenced from being punished. Conditions reasonably related to a con?nement
facilities? interest in maintaining jail security are not unlawful pretrial punishment. Like Article 13, the
test under the Fifth Amendment for whether a particular measure amounts to unlawful pretrial punishment
is whether there is an express intent to punish, when the restriction or condition is not reasonably related
to a legitimate non-punitive government purpose, or when the restriction is excessive in light of that
purpose in light of the totality of the circumstances. Bell v. Wol?sh, 441 U.S. 520 (1979). The Court
?nds that the ?excessiveness? in relation to government interest is included in the Article 13 analysis of
whether a condition of con?nement is reasonably related to a legitimate government interest. The Court
has not been presented with any evidence that sentence credit is a remedy for Fifth Amendment violation
of unlawful pretrial punishment. Dismissal of charges under the Fifth Amendment Due Process clause is
appropriate only in rare instances where the government has engaged in outrageous conduct. US. v.
Djokich, 2012 WL 3711536 (Isl Cir. 2012). As such, the Court encompasses the Fifth Amendment
challenge in its Article 13, UCMJ ?ndings of fact and conclusions of law.

6. Con?nement in violation of service regulations does not create a per se right to sentence credit under
Article 13, UCMJ. US. v. Williams, 68 M.J. 252 (C.A.A.F. 2010)_ citing US. v. Adcock, 65 M.J. 18
(C.A.A.F. 2007). Failure to follow the requirements of a regulation such as the SECNAVINST as it
relates to the conditions of pretrial con?nement, is not determinative on the issue of a violation of Article
13. U. S. v. McCarthy, 47 M.J. 162, 168 (C.A.A.F. 1997).

7. [D]e mtnimis impositions . . . are not cognizable under Article 13, UCMJ. United States v. Corteguera,
56 MJ 330 (C.A.A.F. 2002).

8. Long-terin classi?cation of a pretrial detainee in MAX custody is not automatically a violation of
article 13. McCarthy, 47 M.J. at 168. Even if the accused is con?ned as a pretrial detainee for a long
time, he is not allowed to dictate the conditions of his con?nement. US. v. Willenbring, 56 M.J. 671 (A.
Ct. Crim. App. 2001). Decisions to place pretrial detainees into MAX custody status based on arbitrary
policies that do not examine the individual circumstances of the accused or based solely on the charges
rather than a reasonable evaluation of the facts and circumstances in a case can violate Article 13,
U.C.M.J. US. v. Crawford, 62 M.J. 411 (C.A.A.F. 2006) US. v. Evans, 55 M.J. 732 (N.M. Ct.Crim.App.

22





2001); U.S. v. Anderson, 49 M.J. 575 (N .M. Ct. Crim. App. 1998 (brig policy requiring custody level of
MAX for detainees who face more than ?ve years con?nement is arbitrary and constitutes unlawful
pretrial punishment in violation of Article 13). However, the nature and seriousness of the offense and
potential length of sentence are relevant factors brig of?cials may consider in determining custody level.
U.S. v. Harris, 2007 W.L. 1702575 (N.M. Ct. Crim. App. 2007).

9. Preventing suicide is a legitimate government interest. U.S. v. Williams, 68 M.J. 252 (C.A.A.F. 2010).

10. Failure of the accused to contemporaneously complain is strong evidence that Article 13 was not
violated. Subsequent good behavior does not serve to revise the facts as they existed and were known to
brig authorities. U.S. v. Crawford, 62 M.J. at 415 quoting U.S. v. Huffman, 40 M.J. 225, 227 (C.M.A.
1994)). However, the fact that an accused or defense counsel does complain does not prove that an
Article 13 violation occurred. U.S. v. King, 61 M.J. 225 (C.A.A.F. 2005).

1 l. The views of United Nations of?cials, such as the Special Rapporteur in this case, may serve as a
useful interpretative aid, but do not possess the force of law unless Congress has endowed them with such
authority, and are not controlling of legal determinations in American courts. INS v. Aguirre-Aguirre,
526 U.S. 415 (1999). There has been no evidence presented that Article 13, UCMJ was enacted to
implement any international obligations of the United States. Medallin v. Texas, 554 U.S. 759 (2008).

Conclusions of Law:

1. The Defense Challenges the periods the Accused remained on SR over CAPT Hocter?s
recommendation as unlawful pretrial punishment. The Government concedes that maintaining the
accused on SR after a mental health provider determined he was no longer a suicide risk constitutes
unlawful pretrial punishment under Article 13. The Court agrees. The accused will receive 1 day
con?nement credit starting the day after CAPT Hocter recommended the accused be removed from SR.
Thus the accused will receive sentence credit for pretrial punishment in violation of Article 13 from 7-11
August 2010 and 19-20 January 2011, a total of 7 days.

2. From on or about December 2010 until the accused was transferred to RCF on 20 April 2011, the
accused?s conditions of con?nement generated a lot of media, non-govemmental organization (NGO),
international entity, and individual Congressional attention. Individuals from these organizations, to
include Mr. Mendez, U.N. Special Rapporteur and Congressman Kucinich, requested to visit the accused.
MCBQ did not deem these as ?of?cial visits,? and elevated inquiries from such individuals or entities to
visit the accused in an unmonitored status to higher headquarters Marine Corps, Army, or This was
appropriate. Neither Mr. Mendez nor Congressman Mr. Kucinich nor any other member of a NGO or
international entity were on the accused?s visitation list. What, if any, visitation between individual
members of international or NGO entities and individual Congressmen acting on their own recognizance
is within the discretion of the Executive branch. There has been no evidence presented that Article 13,
UCMJ was enacted to implement any U.S treaty or other foreign affairs obligation of the United States.
The Court further defers to the agency interpretation of its own regulations. Denial of or monitoring of
visits by NGOS, international bodies, or Congressmen acting in their individual capacities is within the
discretion of the Executive Branch and does not constitute illegal pretrial punishment under Article 13,
UCMJ.

3. The accused was not held in solitary con?nement. Solitary means alone and without human contact.
Although the accused was con?ned by himself in a cell similar to that of the other detainees at MCBQ, he
had daily human contact. There were no additional doors separating the accused?s cell from the main
hallway. He could view all activity going on in the hallway. The accused had weekly visits with his
counselor and mental health professionals as well as daily walk through visits by the Brig O.

23

0 33820

4. Throughout the duration of the accused?s pretrial detention at MCBQ, the board met weekly to
assess the accused?s custody level and classi?cation. Although there was some confusion in the brig
policy over whether POI status required MAX custody, the board independently determined the
accused should be detained in MAX status relying on factors set forth in the SECNAVINST independent
of P01, primarily the nature of the accused?s offenses, the potential length of sentence, low tolerance for
frustration, continuing need for mental health evaluation, and poor family relationship. Blenis
prepared and presented his recommendation as to custody and classi?cation as the accused?s counselor
while simultaneously serving as the senior member of the board. Although this procedure was not ideal,
the Court ?nds each member of the board reached his determination independently and the board
procedures were conducted and reported within the SECNAVINST guidance. The Court fl.lI'thCI' ?nds
that CWO4 Averhart and CWO2 Barnes made independent judgments with regard to each of the
accused?s custody/classi?cation determinations. Although Col Oltman concurred with both CWO4
Averhart and CWO2 Barnes? determinations, he made no attempt to in?uence their decisions. Col
Oltman concurred after the determinations were made. Neither Col Choike nor LtGen attempted to
in?uence the decisions of either CWO4 Averhart or CWO2 Bames with respect to custody or
classi?cation of the accused. On 14 January 201 l, heated words were exchanged between Col Oltman
and CAPT Hocter. Col Oltman stated if it were necessary for the accused to appear at trial, the accused
would stay on while under his watch. By these comments, Col Oltman did not attempt to
in?uence CWO2 Bames in her custody/status decisions. He did not in fact in?uence her custody/status
decisions regarding the accused. Throughout the accused?s detention at MCBQ, when Col Oltman was
briefed by CWO4 Averhart or CWO2 Barnes regarding the accused custody, classi?cation, or handling
instructions, the brie?ng occurred to advise Col "Oltman of the decisions after they had been made. The
Brig O?s decision to maintain the accused in MAX custody throughout his con?nement at MCBQ was
based on an individualized consideration of the accused and the SECNAVINST factors. This was neither
an abuse of discretion nor a violation of Article 13.

5. As early as the arrival of the accused, LtGen intent was to ensure MCBQ was following
regulations and procedures properly with common sense in detaining the accused. He wanted to hold the
moral high ground. LtGen was consistently engaging with the mental health chain of command,
HQMC Corrections, and the Anny at the HQDA level to obtain additional mental health to enable MCBQ
to effectively maintain the accused as a long-term pretrial detainee. As the Senior Mission Commander
equivalent of MC Quantico, LtGen had a need to know of any changes in handling instructions,
custody/status, or other con?nement conditions for the accused so he was prepared to engage and inform
higher headquarters, PAO, and others who were informing the public about MCBQ to ensure accurate
information was being relayed about the accused?s conditions of con?nement.

6. There was no intent to punish the accused by anyone on the MCBQ staff or in the MC Quantico chain
of command. Their intent was to ensure the accused was safe, did not hurt or kill himself, and was
present for trial. MCBQ staff was also concerned about the security of MCBQ, its staff, and other
prisoners there.

7. The charges are serious in this case and there was no intent to punish the accused. Dismissal of
charges is not an appropriate remedy for any Article 13, UCMJ violations in this case.

8. Preventing a pretrial detainee from injuring or killing himself is a legitimate government intereststatus is a reasonable tool for advancing that interest. Unlike SR, where the decision
to remove is made by a medical of?cer, the SECNAVINST leaves the P01 removal decision to the Brig
O. In this case, the accused was held in long-term POI status based largely on his mental health history
and his mental health condition with restrictions approaching those of SR. At some point, continuing P01

24

0 0 33821

over the recommendation of mental health professionals becomes excessive in relation to the legitimate
government interest absent changes in circumstances.

9. With respect to the CWO4 Averhart/CAPT Hocter tenure, there was no meaningful engagement
between the brig staff and CAPT Hocter. The brig staff did not trust CAPT Hocter. CAPT Hocter
recommended that the accused be removed from POI on 27 August 2010. The Brig 0 had the discretion
to maintain the accused on POI after that recommendation for a reasonable period of time. The
reasonableness of time includes consideration of the accused?s history of suicidal ideation and violent
behavior in Kuwait, the ambiguous statements made by the accused regarding suicide as an option
inde?nitely, and the accused?s continued guarded communication with brig staff. The Court ?nds that
continued maintenance of the accused on POI status over mental health recommendation after 1
November 2010 was excessive in relation to the legitimate POI interest resulting in the accused being
held in conditions more rigorous than necessary except for the period of 10-13 December 2011 where
CPT Hocter recommended the accused remain on POI. The court will award 1 day of sentence credit
from 1 November 2010 17 January 2011, (minus 10-13 December) a total of 75 days.

10. The accused?s panic attack on 18 January 2011 followed by his comments on 21 January 2011 and 2
March 2011 in light of his behavior and comments in Kuwait caused reasonable concern for the brig staff.
Continuing the accused on POI, notwithstanding the recommendations from mental health professionals,
was not excessive in relation to the legitimate government interest in preventing the accused from injuring
himself or others. There was no Article 13 violation from 18 January 3 March 2011 and a reasonable
period thereafter.

11. CWO2 Barnes had authority to remove the accused?s underwear when he made a direct comment
about the ability to commit suicide with the waist-band. However, this removal does approach SR
restrictions and, at some point, the accused?s comments must be considered in context and in connection
with his mental health diagnosis even if the brig officials disagree with the diagnosis/treatment plan of the
mental health professional. The Court sets that point at 1 April 2011. Maintaining the accused in POI
status over the recommendation of the mental health professionals when his mental health condition was
in remission and without considering the context of the 2 March 2011 communication by the accused
became excessive in relation to the legitimate government interest. This decision is a very close call. In
March/April 2011, the accused removed visitors from his visitation list, withdrew completely from
communication with brig staff even after being advised that if he provided assurances to the Brig and
explanations of his behavior, he could be taken off POI status, was engaging in a subtle increase in rule
violations, and was not truthful in statements to LTC Russell. These factors are balanced by the fact that
the Brig was aware the accused believed his comments of 21 January 2011 and 2 March 2011 were
being used against him to continue his POI status and the history of maintaining the accused on
POI status without meaningful mental health provider input. The Court will grant day for day sentence
credit from 1-20 April 2010, a total of 20 days.

12. Although the SECNAVIN ST does not af?rmatively state that one hour is required exercise time for
all prisoners, the testimony from CWO5 Galaviz, CWO2 Barnes, and LTC Hilton, as well as the DS
section of the SECNAVIN ST and MCBQ policy indicate that 1 hour of exercise is the standard for all
prisoners unless limited because of prisoner behavior or staff resource constraints. The Court ?nds
neither existed to systematically limit the accused to 20 minutes of exercise call from 29 July 2010 10
December 2010. This violation, although not de minimus, is minor. One for one day sentence credit is
excessive and disproportionate to the Article 13, UCMJ violation; the Court grants 10 days of sentence
credit.

25

0 0 33822

13. Any comments that may be perceived as derogatory statements made about the accused in emails
between brig staff are de minimus, were not communicated to the accused or any other prisoner, and were
not humiliating to the accused. No sentence credit is warranted.

14. Monitoring the accused?s communications and visitation under circumstances where the accused is
charged with disclosing a huge volume of classified information is legitimate government interest and
does not violate Article 13.

15. The court recognizes that RCM 305(k) could provide an independent basis for additional credit. US.
v. Williams, 68 M.J. 252 (C.A.A.F. 2010). Having considered the totality of the circumstances as set
forth above, RCM 305(k) and the granted Article 13 credit, the Court does not believe additional credit is
warranted.

RULING: The accused will be credited 112 days of sentence credit for Article 13 punishment.

so ORDERED this day of January 2013.



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

26

33823

Army Regulation 27-40

Legal Services

Litigation

Headquarters
Department of the Army
Washington, DC
19 September 1994

Unclassified
APPELLATE EXHlBIT_4j^
PAGE REFERENCED:
PAGE
OF
PAGES

33824

SUMMARY of CHANGE
AR 27-40
Litigation
This r e v i s i o n - o Devotes a separate chapter t o s e r v i c e of process (chap 2) .
o Replaces " i n v e s t i g a t i v e r e p o r t " w i t h " l i t i g a t i o n r e p o r t " r e f l e c t i n g current
usage (chap 3 ) .
o Devotes a separate chapter t o i n d i v i d u a l l i a b i l i t y (chap 4 ) .
o Treats environmental l i t i g a t i o n (chap 6) .
o Deletes coverage of c r i m i n a l prosecutions i n U.S. Magistrate and D i s t r i c t
Courts (see AR 27-10).
o Delegates more a u t h o r i t y t o the i n s t a l l a t i o n l e v e l t o determine release of
i n f o r m a t i o n and appearance of witnesses (chap 7 ) .
o Updates procedures t o o b t a i n release from l o c a l or State j u r y duty (chap 10) .

33825

*Army Regulation 27-40

Headquarters
Department of the Army
Washington, DC
19 September 1994

Effective 19 October 1994
Legal Services

Litigation

By Order of the Secretary of the Army:
GORDON R. SULLIVAN
General, Uriited States Army
Chief of Staff
Official:

^^^^^^'^xL^
MILTON H. HAMILTON
Administrative Assistant to the
Secretary of the Army

History. This printing publishes a complete
revision of this Army regulation. Because the
publication has been revised extensively, the
changed portions have not been highlighted.
Summary. This regulation prescribes policy
and procedures for litigation in civilian court
proceedings, including the following: providing representation of the Army and its personnel in Federal and State court
proceedings; remedies for procurement fraud;
environmental litigation; bankruptcy; release
of information and appearance of witnesses

in criminal and civil court actions; procedures to follow when soldiers are summoned
for jury duty; and, procedures for cooperation
with the Office of Special Counsel.
Applicability. This regulation applies to all
DA personnel (see glossary), including the
Active Army, the Army National Guard, and
the U.S. Army Reserve. This regulation applies during partial and full mobilization.
Proponent and exception authority.
The proponent of this regulation is The Judge
Advocate General. The proponent has the authority to approve exceptions to this regulation that are consistent with controlling law
and regulation. Proponents may delegate the
approval authority, in writing, to a division
chief under their supervision within the proponent agency who holds the grade of colonel or the civilian equivalent.
Army management control process.
This regulation is not subject to the requirements of AR 11-2. It does not contain internal control provisions.
Supplementation. Supplementation of this
regulation and establishment of command
and local forms are prohibited without prior

approval from the Office of The Judge Advocate General, ATTN: Litigation Division
(DAJA-LT), 901 North Stuart Street, Arlington, VA 22203-1837.
Interim changes. Interim changes to this
regulation are not official unless authenticated by the Administrative Assistant to the
Secretary of the Army. Users will destroy
interim changes on their expiration dates unless sooner superseded or rescinded.
Suggested Improvements. Users are invited to send comments and suggestions to
Office of The Judge Advocate General,
ATTN: Litigation Division (DAJA-LT), 901
North Stuart Street, Arlington, VA
22203-1837.
Distribution. Distribution of this publication is made in accordance with DA Form
I2-09-E, block number 2040, intended for
command levels B,C,D, and E for Active Army, Army National Guard, and U.S. Army
Reserve.

C o n t e n t s (Listed by paragraph and page number)

Chapter 3
Reporting Legal Proceedings to Headquarters, Department

Chapter 1
General, page I
Purpose • I-l, page I
References • 1-2, page 1
Explanation of abbreviations and terms • 1-3, page I
Responsibilities •
page 1
Restriction on contact with DOJ • 1-5, page 2
Appearance as counsel • 1-6, page 2
Mailing addresses • 1-7, page 2

of the Army, page 3
General • 3-1, page 3
Individual and supervisory procedures upon commencement of
legal proceedings • 3-2, page 4
SJA or legal adviser procedures • 3 3, page 4
Litigation alleging individual liability • 3^, page 4
Injunctive relief • 3-5, page 4
Habeas Corpus • 3-6, page 4
Litigation against Govemment contractors • 3-7, page 4
Miscellaneous reporting requirements • 3-8, page 5
Litigation reports • 3-9, page 5
Preservation of evidence • 3-10, page 6
DA Form 4 • 3-11, page 6

Chapter 2

Service of Process, page 2
General • 2-1, page 2
Service of criminal process within the United States • 2-2, page 2
Service of civil process within the United States • 2-3, page 2
Service of criminal process outside the United States • 2-4,
page 3
Service of civil process outside the United States • 2 -5, page 3
Assistance in serving process overseas • 2-6, page 3
Service of process on DA or the Secretary of the Army • 2-7,
page 3

Unswom declarations under penalty of perjury • 3-12, page 6
Chapter 4
Individual Liability, page 9
Scope ' 4-1, page 9
Policy • 4- 2, page 9
Federal statutes and regulations • 4-3, page 9
Procedures for obtaining certification and DOJ representation
• 4-4, page 9
Private counsel at Govemment expense • 4-5, page 10

"This regulation supersedes AR 27-40, 2 December 1987, and rescinds DA Form 2135, May 1973.

AR 27-40 • 19 September 1994

Unclassified

33826

Contents—Continued
Requests for indemnification • 4-6, page 10

Chapter 5
Legal Proceedings Initiated by the United States, page 12
Section

I

Medical Care and Property Claims, page 12
General ' 5-1, page 12
Referral of medical care and property claims for litigation • 5 -2,
page 12
Preparation of claims for litigation • 5-3, page 12
Section II
Assertion of Other Claims, page 13
Referral to the Litigation Division • 5-4, page 13
Proceedings to repossess Govemment real property or quarters or
to collect delinquent rent • 5-5, page 13
Chapter 6
Environmental Litigation, page 13
Scope • 6-1, page 13
Duties and procedures • 6-2, page 13
Chapter 7
Release of Information and Appearance of, page 14
Section I
Scope, page 14
General • 7 -1, page 14
Policy • 7-2, page 14
Referral to HQDA • 7-3, page 14

PFD and HQ, USACIDC coordination • 8-6, page 23
Coordination with DOJ • 8-7, page 24
Comprehensive remedies plan • 8-8, page 24
Litigation reports in civil recovery cases • 8-9, page 24
Administrative and contractual actions • 8-10, page 24
Overseas cases of fraud or cormption • 8-11, page 24
Program Fraud Civil Remedies Act (PFCRA) • 8-12, page 25
Chapter 9
Cooperation with the Office of Special Counsel, page 30
Introduction • 9-1, page 30
Policy • 9-2, page 30
Duties • 9-3, page 30
Procedures • 9-4, page 31
Assistance from HQDA • 9-5, page 32
Chapter 10
Soldiers Summoned to Serve on State and Local Juries,
page 33
General • 10-1, page 33
Policy • 10-2, page 33
Exemption determination authority • 10-3, page 33
Procedures for exemption • 10-4, page 34
Status, fees, and expenses • 10-5, page 34
Appendixes
A.

References, page 35

B.

Mailing Addresses, page 35

C. Department of Defense Directive 5405.2, page 36
D. Department of Defense Directive 7050.5, page 38

Section II
Release of Records in Connection With Litigation, page 15
Release of Army and other agency records • 7-4, page 15
Determination of release authorization • 7-5, page 15
Records determined to be releasable • 7-6, page 15
Records determined not to be releasable • 7-7, page 15
Section III
DA Personnel as Witnesses in Private Litigation, page 16
Response to subpoenas, orders, or requests for witnesses • 7-8,
page 16
Official information • 7-9, page 16
Expert witnesses • 7-10, page 16
Interference with mission • 7-11, page 16
Section IV
Litigation in Which the United States Has an Interest, page 16
Response to subpoenas, orders, or requests for witnesses • 7-12,
page 16
Expert witnesses • 7-13, page 17
News media and other inquiries • 7-14, page 17
Section V
Status, Travel, and Expenses of Witne.sses. page 17
Witnesses for the United States • 7-15, page 17
Witnesses for a State or private litigant • 7-16, page 17
Witnesses before foreign tribunals • 7-17, page 17
Chapter 8
Remedies in Procurement Fraud and Corruption, page 22
Purpose ' 8-1, page 22
Policies • 8-2, page 22
Duties and Procedures • 8-3, page 22
Procurement fraud and irregularities programs at MACOMs • 8^,
page 23
Reporting requirements • 8-5, page 23

E. Department of Defense Directive 5505.5, page 41
Figure List
Figure 3-1: Sample answer to judicial complaint with attached
Certificate of Service, page 6
Figure 3-2: Sample DA Form 4, page 8
Figure 3-3: Unswom declaration under penalty of perjury executed
within the United States, page 9
Figure 4-1: Format for a request for representation using an
unswom declaration under penalty of perjury executed within the
United States, page 10
Figure 4-2: Format for scope of employment statement using an
unswom declaration under penalty of perjury executed outside
the United States, page 11
Pigure 4-3: Format for contractor request for representation,
page 11
Figure 7-1: Sample Touhy Compliance Letter, page 18
Figure 7-2: Sample Fact Witness Approval Letter, page 19
Figure 7-3: Sample Expert Witness Denial Letter, page 19
Figure 7-4: Sample of Doctor Approval Letter, page 21
Figure 8-1: Procurement Fraud Indicators, page 25
Figure 8-2: Guide for Preparing Remedies Plan, page 28
Figure 8-3: Guide for Testing Defective Items Under Criminal or
Civil Investigation, page 29
Figure 9-1: Guide for seeking legal advice and representation
before Office of Special Counsel, page 32
Glossary
Index

AR 27-40 • 19 September 1994

33827

Chapter 1
General
1-1. Purpose
a. This regulation prescribes policies and procedures for the
following:
(1) Defensive and affirmative litigation in Federal and State civilian courts where the Army or Department o f Defense (DOD) has an
interest in the matter
(2) Proceedings before Federal or State administrative bodies,
such as utility rate commissions.
(3) Release o f official information and testimony by Department
o f the A r m y ( D A ) personnel with regard to litigation.
(4) Remedies for procurement fraud and corruption.
(5) Environmental civil litigation and administrative proceedings.
(6) Proceedings before the Office o f Special Counsel.
b. This regulation does not apply to Department o f the A r m y
( D A ) or D O D proceedings such as courts-martial or administrative
boards.
1-2. References
Required and related publications and prescribed and referenced
forms are listed in appendix A .
1-3. E x p l a n a t i o n of a b b r e v i a t i o n s a n d t e r m s
Abbreviations and terms used in the regulation are explained in the
glossary.
1-4. Responsibilities
a. United States Department o f Justice (DOJ). DOJ w i l l defend
litigation in domestic and foreign courts, against the United States,
its agencies and instmmentalities, and employees whose official
conduct is involved. The various U.S. Attomey Offices, under the
oversight o f the Attomey General, w i l l conduct much o f the
representation.
b. The Judge Advocate General (TJAG). Subject to the ultimate
control o f litigation by DOJ (including the various U.S. Attomey
Offices), and to the general oversight o f litigation by the A r m y
General Counsel, TJAG is responsible for litigation in which the
A r m y has an interest. Except with respect to proceedings addressed
in subparagraph i below, only TJAG (or a designee) w i l l communicate to DOJ the A r m y ' s position with regard to settlement o f a case.
c. Assistant Judge Advocate General F o r Civil Law and Litigation (AJAG-CL). Responsible to TJAG for litigation issues; supervises C h i e f Litigation Division.
d. Chief, Litigation Division. Reports to A J A G - C L and is responsible for the following:
(1) Supervising litigation in which the Army has an interest.
(2) Acting for TJAG and the Secretary o f the Army on litigation
issues, including the authority to settle or compromise cases, subject
to the supervision of TJAG and A J A G - C L .
(3) Delegating responsibility for cases i f appropriate.
(4) Serving as primary contact with DOJ on litigation.
(5) Accepting service o f process for DA and for the Secretary of
the A r m y in his or her official capacity. (See 32 CFR 257.5.)
e. Special Assistant U.S. Attorneys (SAUSAs) and D O J special
attorneys. A r m y judge advocates and civilian attomeys, when appointed as SAUSAs under 28 USC 543, w i l l represent the A r m y ' s
interests in either criminal or civil matters in Federal court under the
following circumstances:
(1) Felony a n d misdemeanor prosecutions in Federal court.
A r m y attomeys, at the installation level, after being duly appointed
(see A R 27-10), w i l l prosecute cases, in which the A r m y has an
interest, in Federal court. A r m y attomeys who prosecute criminal
cases w i l l not represent the United States in civil litigation without
authorization from the Chief, Litigation Division.
(2) SAUSAs f b r civil litigation. By assignment o f T J A G and upon
the approval o f the U.S. Attomey, judge advocates w i l l serve within
a U.S. Attorney's office to represent the Govemment in litigation in
which the A r m y or D O D has an interest. These judge advocates

have the same general authority and responsibility as an Assistant
U.S. Attomey.
(3) Special Attorneys assigned to DOJ. By assignment o f TJAG
and with the concurtence o f the appropriate DOJ official, judge
advocates w i l l work as Special Attomeys for DOJ. Special Attorneys are authorized to represent the United States in civil litigation
in which the A r m y or D O D has an interest.
/ Attorneys at Army activities or commands. Staff judge advocates (SJAs) or legal advisers, or attomeys assigned to them, w i l l
represent the United States in litigation only i f authorized by this
regulation or delegated authority in individual cases by the Chief,
Litigation Division.
g. Commander, U.S. Army Claims Service (USARCS). The Commander, USARCS, and USARCS attomeys, subject to A R 2 7 - 2 0 ,
chapter 4, w i l l maintain direct liaison with DOJ in regard to administrative settlement o f claims under the Federal Tort Claims Act,
h. Chief. Contract Law Division, OTJAG. The C h i e f Contract
Law Division, attomeys assigned to the Contract Law Division, and
other attomeys designated by the Chief, Contract Law Division, in
litigation involving taxation, w i l l represent D A in negotiation, administrative proceedings, and litigation, and maintain liaison with
DOJ and other Govemmental authorities.
/. Legal Representatives o f the Chief o f Engineers. The Office o f
Chief Counsel, attomeys assigned thereto, and other attomeys designated by the Chief Counsel w i l l maintain direct liaison with DOJ
and represent DA in litigation and administrative proceedings arising from the navigation, civil works. Clean Water Act 404 permit
authority, environmental response activities, and real property functions o f the U.S. A r m y Corps o f Engineers (COE).
/ Chief Trial Attorney. Contract Appeals Division,USALSA. The
Chief Trial Attomey, attomeys assigned to the Contract Appeals
Division, and attomeys designated by the Chief Trial Attomey, w i l l
represent the Govemment before the Armed Services Board o f Contract Appeals ( A S B C A ) and the General Services Board o f Contract
Appeals (GSBCA). They w i l l maintain direct liaison with DOJ conceming appeals from A S B C A and GSBCA decisions. The Chief
Trial Attomey has designated COE attomeys to act as trial attomeys
in connection with COE contract appeals.
k. Chief. Regulatory Law Office, USALSA. The Chief, Regulatory
Law Office, attomeys assigned to the Regulatory Law Office, and
other attomeys designated by the Chief, w i l l represent D A consumer
interests in regulatory matters before State and Federal administrative agencies and commissions, including but not limited to
proceedings involving rates and conditions for the purchase o f services for communications (except long-distance telephone), transportation, and utilities (gas, electric, water and sewer). They w i l l
maintain direct liaison with DOJ for communications, transportation,
and utilities litigation.
/. Chief Intellectual Property Law Division. USALSA. The C h i e f
Intellectual Property Law Division, and the attomeys assigned thereto, w i l l represent D A in matters pertaining to patents, copyrights,
and trademarks. They w i l l maintain direct liaison with DOJ and
represent the D A in intellectual property issues.
m. Chief. Labor and Employment Law Office.OTJAG. The Chief,
Labor and Employment Law Office, attomeys assigned thereto, and
attomeys identified as labor counselors w i l l represent D A in matters
pertaining to labor relations, civilian personnel, and Federal labor
standards enforcement before the following: Federal Labor Relations
Authority; Merit Systems Protection Board; Equal Employment Opportunity Commission; Department o f Labor; National Labor Relations Board; and. State workmen's compensation commissions. In
the event any individual mentioned in this subparagraph intends to
make a recommendation to DOJ conceming an appeal o f any case
to a U.S. Court o f Appeals, such recommendation w i l l first be
coordinated with Litigation Division.
n. Chief, Procurement F r a u d Division, USALSA. The C h i e f Procurement Fraud Division, attomeys assigned thereto, and other attorneys designated by the Chief, w i l l represent D A in all procurement
fraud and corruption matters before the A r m y suspension and debarment authority and before any civil fraud recovery administrative

AR 27-40 • 19 September 1994

33828

records privileged from release should be retained by the custodian
pending the court's ruling upon the Government's motion.
(2) Whenamotion to quash or foraprotective order is not filed,
orthemotion isunsuccessfiiLandtheappropriateDAofficial has
determinedthat no furtherefforts will be made to protect the records, copies of the records (authenticated if necessary) will be
submittedtothecourt(orto theclerkofcourt)inresponseto the
subpoena or order
^. C^^,^,^^^^^^^^^fv^7^^^^^^^^^^^^.^. RequestsfromDOJ,U.S.
Attomeys, or attomeysforother Govemmental entities for records
that areclassified orotherwise privilegedfrom release will be referred to the Litigation Division. (Seepara 7 2^.)

Section III
DAPersonnel as Witnesses in Private Litigation
7-8. Response to subpoenas, orders, or requests for
witnesses
^. B^^^^^^.The involvement of present or former DA personnel in
private litigation is solelyapersonalmatterbetween the witness and
the requesting party, unless one or more ofthe following conditions
apply:
(1) The testimony involves official information.(See glossary.)
(2) The witness is to testify as an expert.
(3) The absence of the witnessfromduty will interfere seriously
with the accomplishment o f a military mission.
^. B^^^^^^B^Bf
Former DA personnel may freely respondtorequestsfor interviews and subpoenas except ininstances
involving official information (^(I) above) or conceming expert
testimony prohibitedby paragraph7 10below. Inthoseinstances,
the subject of the request or subpoena should take the actionspecified in paragraphs 7 2cand 7 3 of this regulation.
^. B^^^.^^^r B^Bf
Present DA personnel will refer all
requests for interviews and subpoenas for testimony in private litigation through their supervisor to the appropriate SJA or legal adviser
^. B^f,^c^^^^^^^ ^^,^^f^. Any individual not wishing to grant an
interview or to testify conceming private litigation may seek the
advice of an Army attorney conceming the consequences, if any, of
refusaL Any individual not authorized to consult with Army counsel
should consult with private counsel, at no expense to the
Govemment

7-9. Official information
^. In instances involving paragraph 7 8^(1) above, the matter
will be referred to the SJA or legal adviser serving the organization
oftheindividual whose testimony isrequested,orto HQDApursuant to paragraph7 3^ above.The deciding official will determine
whether to release the information sought under the principles established in paragraph 7 5 above. If funding bythe United States is
requested, see paragraph 7 16^ of this regulation.
^. If the deciding official determines that the information may be
released, the individual will be permitted to be interviewed, de
posed, or to appear asawitness in court provided such interview or
appearanceisconsistent with the requirements of paragraphs 7 10
and7 11 below.(See,forexample,fig7 2.)AJAorDAcivilian
attomey should be present during any interviewor testimony to act
as legal representative of the Army.lfaquestion seeks information
not previously authorized for release, the legal representative will
advise the witness not to answer Ifnecessary to avoid release ofthe
infbrmation, thelegal representative will advise the witness toterminate the interview ordeposition, orin thecase of testimony in
court,advise thejudge that DODdirectives and Army regulations
preclude the witness from answering without HQDA approvaL
Every effort should be made, however, to substitute releasable information and to continue the interview or testimony.
7-10. Expert witnesses
^ G^^^^^^^^^. Present DA personnel will not provide.withor
without compensation,opinionor expert testimony either in private
litigation or in litigation inwhich theUnited States has aninterest

1^

foraparty other than theUnited States. Former DA personnel will
notprovide, with or withoutcompensation,opinionor expert testimony conceming official information, subjects, or activities either in
private litigation orin litigation in whichthe UnitedStates has an
interestforaparty other thanthe UnitedStates.(Seefig7 3.) An
SJA or legal adviser is authorized to deny a request for expert
testimony, which decision may be appealed to the Litigation
Division,
^. ^.^c^^^^^^^^^^^^^^^^^^^^^^f^^7^^^. Ifarequestercanshow
exceptional need or unique circumstances, and the anticipated testimony will notbeadversetotheinterests of theUnited States, the
Litigation Division may grant special written authorization for present or former DA personnel to testify as expert or opinion witnesses
at no expense to the United States. In no event may present or
former DApersonnelfiimishexpertor opiniontestimony inacase
in which the United States has an interest foraparty whose interests
are adverse to the interests of the United States.
^. ^^^^^^r^^^^^Bf^^B^B^^^^,^^^^^^.Members of the Army medical department or otherqualifiedspecialists may testify in private
litigation with the following limitations (see fig 7^):
(1) The litigation involves patients they have treated, investigations they have made, laboratory tests they have conducted, or other
actions they have taken in the regular course of their duties.
(2) They limit their testimony to factual matters such as the
following: their observations of the patient or other operative facts;
the treatment prescribed or corrective action taken;course of recovery or steps required fi:^r repairof damage suffered; and, contemplated future treatment
(3) Their testimony may not extend to expert or opinion testimony, to hypothetical questions, orto a prognosis.
^. C^^^^-^^^^^^^^.^^^^^^^^^^^^^^^^^^,^rf^^^^. Ifacourt or other
appropriate authority orders expert or opinion testimony, the witness
will notify the Litigation Division immediately. If the Litigation
Division determines it will not challenge the subpoena or order, the
witness will comply withthe subpoena or order. Ifdirectedbythe
Litigation Division, however, the witness will decline respectfrilly to
comply with the subpoena or order. (See ^^f^^^,5^^^^^.^
7^^^^^^i^^ B^^^^B^,340US 462 (1951))
^. B^.^^^^r ^^7^^,^,^^^.^. All fees tendered to present DA personnel
asan expert oropinion witness, to theextent they exceed actual
travel,meals, and lodging expenses of the witness,will be remitted
to the Treasurer of the United States.

7-11. Interference with mission
If the absence ofawitnessfrom duty will interfereseriously with
the accomplishment ofamilitary mission,the SJAorlegal adviser
will advise the requesting party and attempt to make altemative
arrangements. Ifthese efforts fail, the SJA or legal adviser will refer
the matter to the Litigation Division.

Section 1^
LitigationinWhichtheLlnitedStatesHasan Interest
7-12. Response to subpoenas, orders, or requests for
witnesses
^. B^^^^^^^^^^^^c^^^^^^.^,^^c^^7. Requests, subpoenas,or orders
for official information, interviews, ortestimony of present or formerDApersonnel inlitigationor potential litigationin whichthe
United States has an interest including requests from DOJ, will be
resolvedby the SJA orlegal adviserpursuant to the principlesof
this chapter.The Litigation Division will be consulted on issues that
cannot be resolved by the SJA or legal adviser.
^. B^^^.^,^f^^^^^^^^^7^^,^,^^^,^. ^hen requested by the U.S.Attorney, the SJA or legal adviser will ensure that no witnesses are
reassigned from the judicial district without advising theDOJ attorney. If a witness is vital to the Govemment's case and trial is
imminenttheSJAorlegal adviser should makeinformalarrange
ments to retain the witness in the command until triaL If this is not
feasible, or ifasatisfactory arrangement cannot be reached with the

AR 27-40 ^19 September 1994

33829

DOJattomey.the SJAorlegal adviser should notify theLitigation
Division.

funds for other than local travel and will receive reimbursement
from L^J or other Govemment agencies as appropriate.

7-13. Expert witnesses
Requestsfor present or formerDApersonnelasexpertor opinion
witnesses from f ^ J or other attomeys representing the United
States willbe referred to thcLitigationDivision unless the request
involvesamatter that has been delegated by theLitigation Division
to an SJA or legal adviser.In no event may present or former DA
personnel furnish expert or opinion testimony inacase in which the
United States has an interest foraparty whose interests are adverse
to the interests of the United States.

7-1^. WitnessesforaState or private litigant

7-14. f^ews mediaandother inquiries
News media inquiries regarding litigation or potential litigation will
be refened to the appropriate public affairs office. DA personnel
will not comment on any matter presently or potentially in litigation
without proper clearance. Local public affairs officers will refer
press inquiries to HQDA (SAPA),WASH DC 203IO^I500,with
appropriate recommendations for review and approval by the Office
of the Chief of Public Affairs. All releases of information regarding
actualor potential litigation will becoordinated withthe Litigation
Division prior to release.

Sections
Status,Travel,attdExpenses of Witnesses
7-1^. Witnesses for theLlnitedStates
^. .^r^^^,^^^7r^^.^.^. Asoldier authorized to appear asawitness
forthe United States, including those authorized to appear under
paragraph7I6^below,wiIl be placed on temporary duty. IfUSAR
orNGpersonnel are requestedas witnesses for theUnited States,
and if their testimony arises from their active duty service, they
shouldbeplacedonactiveduty totestify. The statusofacivilian
employee will be determined under Federal Personnel Manual630,
subchapterlO.DA personnel who appear as necessary witnesses for
aparty asserting the Govemment'sclaim for medical care expenses
are witnesses forthe United States
^. 7^^v^^
Travel arrangements for witnesses for
the United States normally are made by DOJ through the Litigation
Division for other than local traveL The Litigation Division will
issue instructions for this traveL including fiind citation, to the
appropriate commander A U.S. Attomey, oran attomey asserting
the Govemment'smedical care claim under chapter5of this regulation, may make arrangements for local travel through the SJA or
legal adviser for attendance of a witness who is stationed at an
installation withinthesamejudicialdistrictor not more than 100
miles from the place where testifying. Other requests, including
those under paragraph 7 I6^beIow, willbereferredtothe Litigation Division. The instructions from the Litigation Division, orthe
request from the U.S. Attomey or the attomey asserting the Govemment'sclaim, will serveasabasisfortheissuanceof appropriate
travel orders by the local commander.
^. 7^^v^7
^^^^ ^.^^^^,^^,:^. The witness' commander or
supervisor should ensure that the witness has sufficient fi.inds to
defray expenses. The SJA orlegal adviser will provide assistance.
(1) Where local travel is performed at the request of a U.S.
Attomey and the testimony does not involve information acquired in
the performance of duties, transportation arrangements (costs) and
any per diem expenses are the responsibility oftheU.S. Attomey.
(2) An attomey asserting the Govemment'smedical care or property claim may be required to advancelocaltravelexpense money
to the witnessrequestedandtoincludethese in recoverablecosts
where the Govemment's claim is not large enough tojustify expenditures of Govemment travel fiinds,
(3) Other localtraveland per diem expensesforcasesinvolving
Army activities or claims are proper expenses of the command
issuing the orders.
(4) LitigationDivisionwillfi^mishtravelexpenseandperdiem

.^^^^^.^^ ^^^^7^^,^.^. If authorized to appear as awitness for a
State or private litigant and the testimony to be given relates to
informationobtained inthe performance ofofficialduties.asoldier
will attend inapermissiveToVstatus. If authorized to appear asa
witness, but the testimony does not relate to information obtained in
the performance ofofficialduties,asoldier may begrantedapass
or permissiveTDVunderAR 630^5,or be required to take ordinary
leave. The status ofacivilian employee will bedeterminedunder
Federal Personnel Manual 630, subchapter 10.
^. 7^^^^^
The requesting party or State agency
will makeall travel arrangements for attendanceof DApersonnel
authorized to appear as witnesses foraState or private litigantThe
local commander may issue appropriate orders when necessary.
c 7^^v^^^^^^^.^^^.^.The United States may not pay traveL meals,
and lodging expenses of the witness,other than normalallowances
forsubsistencepursuantto thcDODMilitary Pay and Allowances
Entitlements ManuaL Theseexpenses aresolelyamatter between
the witness and the party seeking his or her appearance. Witnesses
ordinarily should be advised to require advance payment of such
expenses.Soldiers authorized to appear inapass or permissiveTDV
statusarenotentitledtoreceivewitnessattendancefees,but may
accept traveLmeals,andlodgingexpense money fromthe requesting litigant All wimess fees tendered the soldier, to the extent they
exceed such actualexpenses of the member,will be remitted to the
Treasurerofthe UnitedStates. Acivilian employee authorized to
appear in his or her official capacity will accept the authorized
witness fees, in addition to the allowance for travel and subsistence,
and make disposition of the witness fees as instructed by his or her
personnel office.
^. B^^^^^T^^^^^^^ ^^^7^^,^^^^^,^. RequestsforDApersonnel to
appear at Govemment expense as witnesses in State or local
proceedings foraparty other than the United States, including cases
involvingdomestic violenceor child abuse, willbereferredto the
Litigation Division. The Litigation Division may authorize travel
and per diem expenses under paragraph7 15 above when the case
is one in which the United States has a significant interest
7-17. Witr^esses beforeforeign tribunals
^. B^^^^^^
.5^Bf. Requests or subpoenas from a fbreign
Govemment or tribunalfor present DApersonnel stationed or employed within that country to be interviewed or toappear as witnesses will be forwarded to the SJA of the command exercising
general courtmartialjurisdiction over the unit to which the individualis assigned, attached, or employed.TheSJAwill determine the
following:
(1) Whetheraconsiderationlisted in paragraph7 8^(1^ through
f3) above applies.
(2) Whether the information requested is releasable under the
principles established in section II of this chapter.
(3) whetherthe approval ofthe American Embassy should be
obtained because the person isattachedto the Embassy staff ora
question of diplomatic immunity may be involved.
^. ^^^7^^ ,^r^^^,^^
^7^^^^^,^^
^^7^^^^^^^, If the SJA
determines that the United States has an interest in the litigation, the
commander may authorize the interview or orderthe individual's
attendance in a temporary duty status. The United States will be
deemed to have an interest in the litigation if it is bound by treaty or
other intemational agreement to ensure the attendance of such
personneL
f^r^^^,^^^
^^7^^^^^^^. If the SJA
c. ^^^7^^ .^^^^^.^^ ^^.^
determines thatthe UnitedStatesdoesnothaveaninterest in the
litigation, the commander may authorize the interview or the appearance of the witness under the principles established in section Illof
this chapter
^. 1^^7^^.i^.^^.^ ^^c^r^^^^^.^^^^^^
^^^^^.^^^^.^
If the requested witnessisstationedinacountryother than the requester's,
the matter will be referred to the Litigation Division.

AR 2 7 ^ 0 ^ 1 9 September 1994

17

33830

UNITED STATES OF AMERICA

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

)
)
)
)

>•

>
>
)
)

Prosecution Request
for Leave until 8 February 2013
to Submit its Plan for Storing
any Appellate Exhibits not
Accompanying the Record ofTrial
9 January 2013

The United States respectlully requests leave of the Court until 0 February 2013 to submit its
plan for storing any Appellate Exhibits not accompanying the Record ofTrial in one place under one
custodian with a procedure for systematic reviews by the United States to ensure accountability
through any appellate review. On 21 December 2012, the United States received approval to store
such records at a secure facility operated by a govemment organization outside the Department of
Defense. Since then, all applicable equity holders, with the exception of the Department of State,
have cleared for such records to be stored at this facility. The Department of State has notified the
United States that the storage plan has been cleared by a majority of the directorates, but that
additional time is needed. The United States requests additionaltimeto receive such clearance.
On 7 January 2013, the United States submitted its written storage plan for final approval to
the Office of the Clerk of Court for the United States Army Court of Criminal Appeals ("Clerk of the
Court"). Although the prosecution has been working with the Clerk of the Court for two months on
the plan, on 8 January 2013, the Clerk of Court notified the United States that leadership within the
United States Army Legal Services Agency requested an opportunity to comment on the proposed
storage plan, along with the Chief of the Defense Appellate Division which cannot occur before 10
January 2013. The United States requests additional time to receive such input and, if necessary, to
coordinate any modifications to the existing plan with each respective equity holder.
This request will not necessitate a delay in the proceedings because the continued effort to
secure this plan will occur concurrentiy with the scheduled pretrial motions process. There will be
no prejudice to the defense.

J7TONTER\
R WHYTE
CPT, JA
Assistant Trial Coimsel
I certify that I served or caused to be served a tme copy of the above on Mr. David Coombs, Civilian
Defense Coimsel, via electronic mail on 9 January 2013.

J : H V N^'

^VHYTE
CPT, jX
Assistant Trial Counsel

APPELLATE EXHIBIT
\
PAGE REFERENCED:
PAGE
OF
PAGES

0 33831

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v. DEFENSE NOTICE OF
PLEA AND FORUM

MANNING, Bradley E., PFC

U.S. Army,

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221 1

DATED: 9 January 2013



In accordance with the Rules of Practice before Army Courts-Martial, PFC Manning, by and
through his attorney hereby serves notice to the Government and Court of anticipated plea,
requested forum, and expected motions.

Plea:
To the Specification of Charge 1 and to Charge 1: Not Guilty.
To Specification 1 of Charge II: Not Guilty.

To Specification 2 of Charge 11: Guilty, except the words and ?gures ?15 February 2010?
and April 2010?, substituting therefore the words and figures ?14 February 2010? and ?21
February 2010?; further excepting the words ?information relating to the national defense, to
wit:?; further excepting the words ?with reason to believe such information could be used to the
injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted,?, substituting therefore
the words ?did will?illy communicate?; further excepting the words and figures, ?in violation of
18 U.S. Code Section to the excepted words and ?gures, Not Guilty; to the substituted
words and ?gures, Guilty.

(Revised Specification 2 of Charge 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 14
February 2010 and on or about 21 February 2010, having unauthorized possession of a video ?le
named ?12 JUL 07 CZ ENGAGEMENT ZONE 30 CG Anyone.avi?, did willfully communicate
the said information, to a person not entitled to receive it, such conduct being prejudicial to good
order and discipline in the armed forces and being of a nature to bring discredit upon the armed
forces.)

To Specification 3 of Charge 11: Guilty, except the words and figures ?22 March 20l0?
and ?26 March 2010?, substituting therefore the words and figures ?17 March 2010? and ?22
March 2010?; further excepting the words ?information relating to the national defense, to wit:?;

APPELLATE EXHIBIT jg
PAGE REFERENCED:

PAGES



0 0 33832

further excepting the words ?with reason to believe such information could be used to the injury
of the United States or to the advantage of any foreign nation, willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted,?, substituting therefore the
words ?did willfully communicate?; further excepting the words and ?gures ?in violation of 18
U.S. Code Section to the excepted words and ?gures, Not Guilty; to the substituted
words and ?gures, Guilty.

(Revised Speci?cation 3 of Charge II: In that Private First Class Bradley E. Marming,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 17
March 2010 and on or about 22 March 2010, having unauthorized possession of more than one
classi?ed memorandum produced by a United States government intelligence agency, did
willfully communicate the said information, to a person not entitled to receive it, such conduct
being prejudicial to good order and discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.)

To Speci?cation 4 of Charge II: Not Guilty.

To Speci?cation 5 of Charge II: Guilty, except the words and ?gures ?31 December
2009? and ?9 February 2010?, substituting therefore the words and ?gures ?5 January 2010? and
?3 February 2010?; further excepting the words ?information relating to the national defense, to
wit:?; further excepting the words ?with reason to believe such information could be used to the
injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted,?, substituting therefore
the words, ?did willfully communicate?; further excepting the words and ?gures ?in violation of
18 U.S. Code Section to the excepted words and ?gures, Not Guilty; to the substituted
words and ?gures, Guilty.

(Revised Speci?cation 5 of Charge II: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 5
January 2010 and on or about 3 February 2010, having unauthorized possession of more than
twenty classi?ed records from the Combined Information Data Network Exchange Iraq database,
did willfully communicate the said information, to a person not entitled to receive it, such
conduct being prejudicial to good order and discipline in the armed forces and being of a nature
to bring discredit upon the armed forces.)

To Speci?cation 6 of Charge II: Not Guilty.

To Speci?cation 7 of Charge II: Guilty, except the words and ?gures ?31 December

2009? and ?9 February 20l0?, substituting the words and ?gures ?5 January 2010? and ?3
February 2010?; further excepting the words ?information relating to the national defense, to
wit:?; further excepting the words ?with reason to believe such information could be used to the
injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted,?, substituting therefore
the words ?did willfully communicate?; further excepting the words and ?gures ?in violation of
18 U.S. Code to the excepted words and ?gures, Not Guilty; to the substituted words
and ?gures, Guilty.



0 0

(Revised Speci?cation 7 of Charge II: In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 5
January 2010 and on or about 3 February 2010, having unauthorized possession of more than
twenty classi?ed records from the Combined Information Data Network Exchange Afghanistan
database, did willfully communicate the said information, to a person not entitled to receive it,
such conduct being prejudicial to good order and discipline in the armed forces and being of a
nature to bring discredit upon the armed forces.)

To Speci?cation 8 of Charge II: Not Guilty.

To Speci?cation 9 of Charge II: Guilty, except the words and ?gures ?between on or
about 8 March 2010 and on or about 27 May 2010?, substituting therefore the words and ?gures
?on or about 8 March 2010?; further excepting the words ?information relating to the national
defense, to wit:?; further excepting the words ?with reason to believe such information could be
used to the injury of the United States or to the advantage of any foreign nation, willfully
communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted,?,
substituting therefore the words ?did willfully communicate?; further excepting the words and
?gures ?in violation of 18 U.S. Code to the excepted words and ?gures, Not Guilty; to
the substituted words and ?gures, Guilty.

(Revised Speci?cation 9 of Charge II: In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, on or about 8 March
2010, having unauthorized possession of more than three classi?ed records from a United States
Southern Command database, did willfully communicate the said information, to a person not
entitled to receive it, such conduct being prejudicial to good order and discipline in the armed
forces and being of a nature to bring discredit upon the armed forces.)

To Speci?cation 10 of Charge II: Guilty, except the words and ?gures ?ll April 2010?
and ?27 May 2010?, substituting therefore the words and ?gures April 2010? and ?12 April
2010?; further excepting the words ?information relating to the national defense, to wit:?; further
excepting the words ?with reason to believe such information could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit,
or cause to be communicated, delivered, or transmitted,?, substituting therefore the words ?did
willfully communicate?; further excepting the words and ?gures ?in violation of 18 U.S. Code
Section to the excepted words and ?gures, Not Guilty; to the substituted words and
?gures, Guilty.

(Revised Speci?cation 10 of Charge II: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 10
April 2010 and on or about 12 April 2010, having unauthorized possession of more than ?ve
classi?ed records relating to a military operation in Farah Province, Afghanistan occurring on or
about 4 May 2009, did will?illy communicate the said information, to a person not entitled to
receive it, such conduct being prejudicial to good order and discipline in the armed forces and
being of a nature to bring discredit upon the armed forces.)

0 0 33834

To Speci?cation 11 of Charge II: Not Guilty.
To Speci?cation 12 of Charge II: Not Guilty.

To Speci?cation 13 of Charge II: Guilty, except the words and ?gures ?27 May 2010?,
substituting therefore the words and ?gures ?4 May 2010?; further excepting the words
?knowingly exceeded authorized access?, substituting therefore the words ?knowingly
accessed?; further excepting the words ?with reason to believe that such information so obtained
could be used to the injury of the United States, or to the advantage of any foreign nation, in
violation of 18 U.S. Code Section to the excepted words and ?gures, Not Guilty; to
the substituted words and ?gures, Guilty.

(Revised Speci?cation 13 of Charge II: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 28
March 2010 and on or about 4 May 2010, having knowingly accessed on a Secret Internet
Protocol Router Network computer, and by means of such conduct having obtained information
that has been detennined 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-?ve classi?ed United States Department of State
cables, did willfully communicate, deliver, transmit, or caused to be communicated, delivered, or
transmitted the said information, to a person not entitled to receive it, such conduct being
prejudicial to good order and discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.)

To Speci?cation 14 of Charge 11: Guilty, except the words and ?gures ?15 February
2010? and ?l8 February 2010?, substituting therefore the words and ?gures ?l4 February 2010?
and ?15 February 2010?; further excepting the words ?knowingly exceeded authorized access?,
substituting therefore the words ?knowingly accessed?; further excepting the words ?with reason
to believe that such information so obtained could be used to the injury of the United States, or to
the advantage of any foreign nation, in violation of 18 U.S. Code Section to the
excepted words and ?gures, Not Guilty; to the substituted words and ?gures, Guilty.

(Revised Speci?cation 14 of Charge II: In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 14
February 2010 and on or about 15 February 2010, having knowingly accessed 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 classi?ed Department of State cable titled ?Reykj avik-13?,
did willfully communicate, deliver, transmit, or caused to be communicated, delivered, or
transmitted the said information, to a person not entitled to receive it, such conduct being
prejudicial to good order and discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.)

To Speci?cation 15 of Charge II: Guilty, except the words and ?gures ?between on or
about 15 February 2010 and on or about 15 March 2010?, substituting therefore the words and



0 0 33835

?gures ?on or about 8 March 2010?; further excepting the words ?information relating to the
national defense, to wit:?; ?nther excepting the words ?with reason to believe such information
could be used to the injury of the United States or to the advantage of any foreign nation,
willfully communicate, deliver, transmit, or cause to be communicated, delivered, or
transmitted,?, substituting therefore the words ?did willfully communicate?; further excepting the
words and ?gures ?in violation of 18 U.S. Code Section to the excepted words and
?gures, Not Guilty; to the substituted words and ?gures, Guilty.

(Revised Speci?cation 15 of Charge II: In that Private First Class Bradley E. Marming,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, on or about 8 March
2010, having unauthorized possession of a classi?ed record produced by a United States Army
intelligence organization, dated 18 March 2008, did willfully communicate the said information,
to a person not entitled to receive it, such conduct being prejudicial to good order and discipline
in the armed forces and being of a nature to bring discredit upon the armed forces.)

To Speci?cation 16 of Charge II: Not Guilty.
To Charge II: Guilty.
To Speci?cation 1 of Charge Not Guilty.
To Speci?cation 2 of Charge Not Guilty.
To Speci?cation 3 of Charge Not Guilty.
To Speci?cation 4 of Charge Not Guilty.
To Speci?cation 5 of Charge Guilty.
To Charge Guilty.

Q:
Trial by Military Judge Alone.

Maximum Punishment:

The maximum punishment authorized in this case, based solely on PFC Manning?s guilty
plea is: reduction to E-1, total forfeiture of all pay and allowances, con?nement for 20 years, and
a dishonorable discharge.

The Defense arrives at this maximum punishment determination based upon the ?ndings
of the Court in Appellate Exhibit 421 and the Defense?s belief the proposed pleas to speci?cation

13 and 14 should each carry a maximum punishment of reduction to E-1, total forfeiture of all
pay and allowances, con?nement for 2 years, and a dishonorable discharge.



0 0 33836

PFC Manning?s proposed pleas to speci?cations 13 and 14 of Charge II under clauses 1
and 2 of Article 134 are lesser included offenses of the offenses charged under 18 U.S.C. Section
1030(a)(1) and Article 134. The Defense asserts that the Article 134 lesser included offenses are
not included in or closely analogous to an offense listed in the MCM. The Defense also asserts
that the conduct and mens reas of the lesser included offenses are not essentially the same as a
violation of United States Code Section 1030(a)(1) because PFC Manning is pleading to a
residuum of elements for that offense. Army Regulation (AR) 380-5 dated 29 September 2000
(Information Security Program) establishes a custom of the service penalizing disclosures of
classi?ed and sensitive information. A disclosure in violation of AR 380-5 would be charged
under Article 92 of the UCMJ. A violation of Article 92 would carry a maximum punishment of
reduction to E-1, total forfeiture of all pay and allowances, con?nement for 2 years, and a
dishonorable discharge. Thus, the maximum punishment for each of the lesser included offenses
of speci?cation 13 and 14 proposed by PFC Manning should be reduction to E-1, total forfeiture
of all pay and allowances, con?nement for 2 years, and a dishonorable discharge.

Expected Motions:
Motion to Dismiss: Speedy Trial under Article 10 and RCM 707;

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

Respectfully submitted,

6/

DAVID EDWARD COOMBS
Civilian Defense Counsel

33837

UNITED STATES OF AMERICA
V.

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

GOVERNMENT ADDENDUM
TO MOTION TO TAKE
JUDICIAL NOTICE
DATED 16 NOVEMBER 2012
9 January 2013

1. The United States requests the Court takejudicial notice of the following adjudicative facts:
a. Julian Assange was located in Iceland in Febmary 2010 and working on the Icelandic
Modem Media Initiative.
b. LTC Lee Packnett was quoted in a New York Times article, dated 18 March 2010.
c. A New Yorker profile of Julian Assange, titled "No Secrets: Julian Assange's Mission for
Total Transparency" was dated 7 June 2010.
d. WikiLeaks and various new organizations began publishing Department of State
diplomatic cables over the weekend of 27-28 November 2010.
e. Al-Qaeda (AQ) and its affiliates (al-Qaeda in the Islamic Maghreb, al-Qaeda in Iraq, alQaeda in the Arabian Peninsula) are all listed as foreign terrorist organizations by the
Department of State and are, in fact, enemies of the United States.
f Usama bin Laden is a member of AQ and an enemy of the United States.
g. Adam Gadahn is a member of AQ and an enemy of the United States.
h. "Inspire" is a magazine. It advocates violent jihad and promotes the ideology of AQAP.
2. This filing is an attempt to clarify the adjudicative facts the United States seeks to have
judicially noticed. See Goverrmient Motion to Take Judicial Notice, dated 16 November 2012.

MORROW
T , JA
Assistant Trial Counsel

APPELLATE EXHIBIT_4j^
PAGE REFERENCED:
PAGE
OF
PAGES

33838

Icertifythatlserved or caused to be servedatme copy ofthe above on Mr. DavidE.
Coombs, Civilian Delense Counse1,via electronic mail, on9January 2013.

Assistant Trial Counsel

33839

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

)
)
)

)
)
)
)
)
)

Scheduling Order

DATE: ^ Ja/\.U OUI l O 13
^

1. The Court is currently scheduling Article 39(a) sessions with the following default schedule at
the request of the parties: two weeks for parties to file motions; two weeks for parties to file
responses; five days for parties to file replies; and one week for the Court to review all pleadings
before the start of the motions hearing. The time for filing replies was added after the first Article
39(a) session on 15-16 March 2012 because the Court received reply briefs the day before that
session, the parties desire to continue to file replies, and the Court requires time to consider them.
2. Scheduling dates and suspense dates are set forth below. This schedule was coordinated with
the parties. The trial schedule will be reviewed and updated as necessary at each scheduled
Article 39(a) session.
a. Immediate Action (21 February 2012 -16 March 2012)
b. Legal Motions, excluding Evidentiary Issues (29 March 2012 - 26 April 2012)
c. Legal Motions (10 Mav 2012 - 8 June 2012)
d. Interim Pretrial Motions (2 June 2012 - 25 June 2012)
e. Pretrial Motions (1 June 2012 - 20 July 2012)
f. Pretrial Motions (20 July 2012 - 30 August 2012)
g. Pretrial Motions (24 August 2012 -18 October 2012)
h. Pretrial Motions (26 September 2012 - 2 November 2012)
i.

Pretrial Motions (19 October 2012 - 12 December 2012)

j.

Pretrial Motions (16 November 2012 - 11 January 2013)

k. Pretrial Motions (11 January 2013 -17 January 2013)
(A) Article 39(a): 16-17 January 2013
(1) Defense Motion for Speedy Trial, including Article 10 (Argument Only)

1

APPELLATE EXHIBIT ^ ^ ( >
PAGE REFERENCED:
PAGE
OF y PAGES

33840

(2) Government Supplement to Additional Request for Judicial Notice
(A) Filing: IlJanuary2013
(B) Response: 15 January 2013
(3) Government Response to Defense Notice ofPleaandForum
(A) Filing: I6January2013
(4) Defense Motion to Compel ^itnessTestimony-Fort Leavenworth witness
1. PretrialMotions(I4January 2013 IMarch 2013)
(A) Filing: 31January 2013
(B) Response: 14Febmary2013
(C) Reply: 19Febmary2013
(D) Article 39(a): 26 Febmary 1March2013
(1) Providence Inquiry
(A) Accused Profler: 31January2013
(B) Delense Proposed Questions: 31January2013
(C) Govemment Proposed Questions: 7Febmary2013
(2) Supplemental Government witness List (if necessary)
(A) Filing: 31January 2013
(3) Grunden Hearing for Government Classified Information
(4) Litigation Concerning MRE 505(h) and MRE 505(i) (if not previously resolved)
(5) Government Notification ofSecurity Clearances for Defense witnesses (if
necessary)
(A) Filing: I4Febmary20I3
(B) Response: 19 Febmary 2013
(6) Defense MRE 505(h) FinalNotice
(A) Filing: 22 Febmary 2013
(7) Discussion ofStoring all AEsinaCentrali^ed Location
(A)Filing:8Febmary2013
(8) Government List of all Classified Information it intends to Re^uestaClosed
Session(Grunden)
(A) Filing: 3IJanuary2013
(B) Response: 14Febmary2013

33841

(9) Government Proposed Procedures for Closing Sessions (Grunden)
(A) Filing: 31 January 2013
(B) Response: 14 Febmary 2013
(10) Notice of whether the Government will Request the Grunden Article 39(a) be an
in camera Proceeding, in whole or in part, IAW MRE 505(i)'
(A) Filing: 31 January 2013
m. Pretrial Motions (10 - 12 April 2013)
(A) Filing: 15 March 2013
(B) Response: 29 March 2013
(C) Reply: 3 April 2013
(D) Article 39(a): 10 - 12 April 2013
(1) Defense Motion in Limine for Government Sentencing Case
n. Pretrial Motions (22 April 2013 - 24 May 2013)
(A) Filing: 22 April 2013
(B) Response: 6 May 2013
(C) Reply: 11 May 2013
(D) Article 39(a): 21-24 May 2013
(1) Grunden Hearing for Defense Classified Information
(2) Completion of Security Clearance Checks for Witnesses (as necessary)
(3) Government Notice of Alternatives of Classified Information in lieu of Closing
the Courtrooms
)om^
(A) Filing: 22 April 2013
(4) MRE505(i)Litigation,ifany,basedonDefenseMRE505(h)FinalNotice,22
February 2013
(5) Notice of Government Objections to Defense Use of Classified Information and
Government Proposed Alternatives to Defense Use of Classified Information

' This Article 39(a) is currently scheduled to occur on 26 Febmary - 1 March 2013.
^ Altematives include, but are not limited to stipulations; use of code words or special names; use of screens,
disguises, and code names for classified witnesses; use of electronic imagery visible only to cleared trial participants
and not the public; the "silent witness" mle; and syllabi or reference indexes.

33842

o. Trial bv MJ Alone (3 June 2013 - UTC)
Trial: 3 June 2013 - UTC
So Ordered this^day of ^/g^ i/tr^/y 2013.

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

33843

UNITED STATESOF AMERICA

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

SUPPLEMENTTO GOVERNMENT
ADDENDUMTO MOTIONTO
TAKEJUDICIALNOTICE
DATED 16NOVEMBER2012
IlJanuary 2013

RELIEFSOUGHT
The United States requests this Court takejudicial notice ofthe adjudicative facts listed
in the Govemment Addendum to Motion toTak^e Judicial Notice.
Appellate Exhibit 465.
This filing supplements the Goverttment Addendum, as well as the Govemment'sMotion to
Take Judicial Notice, dated16November 2012.
Appellate Exhibit 398. During oral
argument at the last Article 39a session, the Court asked the Govemment to briefiy describe the
relevance ofthe adjudicative facts listed in the Govemment Addendttm, as well as provide
additional source inlormation forthe facts sought to be judicially noticed. Each fact listed in the
Govemment Addendum is addressed in tum below.
^^^^^c^^^^l^^c^^
a. Julian Assange was located in Iceland inFebmary2010and working on the Icelandic
Modem Media Initiative. ^^^Enclosuresl-5(accessible via hyperlittks below).
This f^ct is relevant because the United States intends to introduce into evidence chat
logs between Mr. Assange and the accused that relerence Mr.Assange'spresence in Iceland and
the Icelandic Modem Media Initiative.
Enclosure 6, atlandlO. As the accused leaked
information involving Iceland, the adjudicative fact also tends to explain the accused's
misconduct generally and provide context to the statements made in the chat logs. The relevant
enclosures establish that this lact is not subject to reasonable dispute in that the lact is capableof
ready and accurate determination by resort to the published news.
Enclosurel:
http:^^www.nytimes.com^2010^02^22^usiness^media^221ittk.html7pa^ewanted-all^ r^O
Enclosure 2: http:^^www.^ardian.co.uk^media^or^an^nder^2010^1eb^l5^wikileak^s-editorexcited-iceland-ioumalism
Enc1osure3:http:^^www.^ardian.co.uk^wor1d^2010^feb^12^iceland-haven-lreedom-speechwikileaks
Enclosure4:httD:^^news.bbc.co.uk^2^i^8504972.stm
Enclosure5:http:^^news.bbc.co.uk^2^i^technolo^^8510927.stm
b. LTC Lee Packnett was quoted inaNewVork Times article, dated18March 2010.
Enc1osure7.
APPELLATEEXHIBIT^^
PAGEREFERENCED:
^
PAGE
OF
PAGES

33844

This fact is relevant because the United States intends to introduce into evidence chat
logs between Mr. Assange and the accused that relerenceLTC Packnett and the article published
by the NewVork Times.
Enclosure 6, atl4. Because the article was published by the New
Vork Times and is accessible overthe intemet or in print, the existence ofthis article and the
dates ofits publication, as well as its use ofaquotelromLTC Packnett, are lacts not subject to
reasonable dispute in that they are widely known or capable ofready and accurate determination
byresort to sources whose accuracy cattnot be questioned.
c. ANewVorkerprofileofJulian Assange, titled "No Secrets: Julian Assange'sMission for
TotalTransparency" was dated7June 2010. ^^^Enc1osure8(accessibleviathehyperlir^
below).
This fact is relevant because the United States intends to introduce into evidence chat
logs between the accused and Adrian Lamo that reference this NewVorker profile.
Enc1osure9,atl6. The chat logs indicate that the accused had knowledge ofthe article before
the date ofpublication. The existence ofthis article and the date ofits publication are lacts not
subject to reasonable dispute in that they are capable ofready and accurate determination by
resort to the article itself
Enc1osure8:http:^^www.newyorker.com^reportin^2010^06^07^1006071a fact khatchadourian
d. WikiLeaks began releasing the alleged Department ofState diplomatic cables over the
weekend of27-28 November 2010. ^^^EnclosureslO-15(accessib1e via the hyperlirtks below).
This lact is relevant because the accused is charged with compromising alleged
Department ofState diplomatic cables. As such, it is necessary to developatimeline to prove
the elements ofthe relevant specification. The release of alleged cables at this time isalact not
subject to reasonable dispute in that it is widely known and capable ofready and accurate
determination by resort to the relevant enclosures.
Enclosure 10: httt^:^^artic1es.1atimes.con^2010^nov^30^wor1d^1a-f^ wiki1eaks 20101130
Enc1osurell:http:^^www.the^lobeandmaiI.com^news^politics^canadian-spy-secrets-exposed-inwiki1eaks-dumn^articlel316198^
Enclosure 12: htti^:^^www.nytimes.com^2010^11^29^wor1d^29cab1es.html7t^a^ewanted^al1^ r^O
Enclosure 13:http:^^www.^ardian.co.uk^news^lo^2010^nov^28^wikileaks-us-embassycableslive-blo^
Enclosure 14:http:^^www.washin^onpost.com^wt^dyn^content^articIe^2010^11^28^AR2010112802395.html
Enclosure 15:http:^^www.delense.^ov^ews^ewsArticle.aspx7ID-61876
e. Al-Qaeda(AQ), alQaeda in the Islamic Maghreb, al-Qaeda in Iraq, and al-Qaeda in the
Arabian Peninsula are all listed as foreign terrorist organizations bythe Department ofState.
Additionally,they are, in lact, enemies ofthe United States. ^^^Enclosttresl6-I8(accessibIe
via the hyperlinks below).

33845

These adjudicative facts are relevant because the accused is charged with Giving
Intelligence to the Enemyunder Article 104, UCMJ For Specificationlof Charge II, the
United States must also prove that the accused had knowledge that intelligence published on the
intemet was accessible to the enemy. Further, the United States intends to introduce evidence
thatAQwas in possession ofinformation compromised by the accused as part ofits merits and
sentencing cases. The fact that the Department ofState considers these organizations terrorist
organizations is appropriate forjudicial notice because it is not subject to reasonable dispute in
that the relevant enclosures, accessible via the State Department'swebsite, are sottrces whose
accuracy cannot reasonably be questioned. The widely accessible nature ofthis information and
the official nature ofthe source establish that the fact is not subject to reasonable dispute. The
fact thatAQand affiliates are enemies of the United States is widely known and appropriate for
judicial notice, but is specifically supported by Enclosurel7,which lists "the al-Qaida(AQ)
network" under the section "defining the enemy."
Enc1osure16:http:^^www.state.^ov^i^ct^rls^other^des^123085.htm
Enc1ostire17:http:^^www.state.^ov^i^ct^enemy^index.htm
Enc1osure18:httt^:^^wwwstate.^ov^r^DaB^Drs^t^s^2010^01^135364htm
f Usama bin Laden (UBL)isamember of al-Qaeda and an enemy of the United States, i^^^
Enc1osttresl9-20(accessible via the hyperlirtks below).
This adjudicative lact is relevant because the Govemment intends to introduce evidence
that Usama bin Laden asked for, and received, classified inlbrmation compromised by the
accused. The fact that UBL wasamember of al-Qaeda and an enemy ofthe United States is
widely known, as well as capableofready and accurate determination through the relevant
enclosures, sources whose accuracy carmot reasonably be questioned.
Enclosure 19: http:^^www.fbi.^ov^wanted^topten^usama-bin-laden
Enclosure 20: httt^:^^www.state.^ov^i^ct^rls^rm^2011^178499.htm
Enc1osttre21:http:^^www.delense.^ov^transcripts^transcript.aspx7transcriptid^4820
g. Adam Gadahn isamember of al-Qaeda and an enemy ofthe United States.
Enclosures 22-24(accessible via the hyperlinks below).
This adjudicative lact is relevant because the Govemment intends to introduce evidence
that Adam Gadahn was in possession ofmaterial released by WikiLeaks and releasedavideo
relating, in part, to the WikiLeaks disclosures. The fact that Gadahn isamember of al-Qaeda
and an enemy ofthe United States is widely known, as well as capable ofready and accurate
determination through the relevant enclosures,whose accuracy carmot reasonably be questioned.
Enclosure 22: http:^^www.lbi.^ov^wanted^wanted terrorists^adam-yahiye-^adahn
Enclosure 23:httt^:^^www.state.gov^i^ct^rls^crt^2006^82728.htm
Enc1ostrre24:http:^^www.delense.^ov^news^newsarticIe.aspx7id-116193
h. "Inspire" isamagazine. It advocates violentjihad and promotes the ideology of al-Qaeda
in the Arabian Peninsula.
Enclosures 25 29(accessible via the hyperlittks below).

33846

These adjudicative facts are relevant because the Govenmient intends to introduce
evidence that this magazine, which promotes the ideology of recognized terrorist organizations,
encouraged readers to gather information released by WikiLeaks. The relevant enclosures are
articlesfi-ommainstream news organizations. They evidence that the two adjudicative facts at
issue here are not subject to reasonable dispute in that they are capable of ready and accurate
determination.
Enclosure 25: http://www.adl.org/main Terrorism/al qaeda english magazine.htm
Enclosure 26:
http://edition.cnn.com/2010/WORLD/meast/07/0I/al.qaeda.magazine/? fl?id=CE2WTvs0hMG
Enclosure 27: http://www.upi.com/Top News/US/20I0/07/0I/AI-Oaida-launches-Englishlanguage-e-zine/UPI-39151277988860/
Enclosure 28: http://www.theatlantic.com/po1itics/archive/2010/06/a1-qaedas-first-englishlanguage-magazine-is-here/59006/
Enclosure 29:
http://www.ad1.org/main Terrorism/al qaeda magazine calls for us terror attacks.htm?MuIti
page sections=sHeading 1
CONCLUSION
As indicated above, the United States respectlully requests the Court take judicial notice
of the listed adjudicative facts.

:PT, J A

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 11 January 2013.

r ^ A ^
) D E A N MORROW
rPT, JA
Assistant Trial Counsel

33847

Enclosures
1. "AVisionofIce1and as Haven f^r Joumalists" NewVork Times 22 Feb 2010
2. "WikiLeaks editor: why I'm excited about Iceland'splans for ioumaIism"The Guardian 15
Feb 2010
3. "Iceland plans luture as global haven for fieedomofspeech" The Guardian 12 Feb 2010
4. "Wiki1eaks and Iceland MPs propose ^joumalism haven'" BBC News 12Febmary 2010
5. "Iceland'sjoumalismlreedom dream prompted by Wikileaks" BBCNews 12 Feb 2010
6. Chat Logs between the accused and Julian Assange
7. "PentagonSeesaThreatfi-omOnline Muckrakers"NewVorkTimes18March 2010
8"NoSecrets"TheNewVorker7June2010
9. Chat Logs between the accused and Adrian Lamo
10. "U.S.scrambles to contain WikiLeaks damage" Los Angeles Times 30 Nov 2010
11. "Canadian spy secrets exposed in WikiLeaks dump" The Globe and Mail 29 Nov 2010
12"Leaked Cables Offer Raw Look atUSDip1omacy"NewVork Times 28 Nov 2010
13. "WikiLeaks US embassy cables: live updates" The Guardian 28 Nov 2010
14. "WikiLeaks'sunveiling of secret State Department cables exposesU.S.diplomacy"
WashingtonPost29 Nov 2010
15. "Clinton: WikiLeaks'ReleaseAttacks Intemational ConmTunity"American Forces Press
Service29 Nov 2010
16. "ForeignTerrorist Organizations" Department ofState 28 Sept 2012
17. "TheTerrorist Enemy" Department ofState
18. Press Statement: "Designations of Al-Qa'ida in the Arabian Peninsula(AQAP) and Senior
Leaders" Department ofState 19 January 2010
19. FBITen Most Wanted Fugitive: Usama Bin Laden, Federal Bureau oflnvestigation
20. Conference Remarks:"AIOaida Afier Bin Laden" Department ofState8Dec 2011
21. "Background Briefing with Senior Intelligence Official at the Pentagon on Intelligence
Aspects oftheU.S.Operation Involving Osama Bin Laden" Department ofDelense7May 2011
22. Most WantedTerrorists:AdamVahiye Gadahn, Federal Bureau oflnvestigation
23. Country Reports onTerrorism: "Chapter5^Terrorist Sale Havens (7120 Report)"
Department ofState 30 April 2007
24. "Bin Laden Letters Show Desire to AttackU.S.Targets"America Forces Press Service3
May 2012
25. "AlQaeda Releases First-EverEnglishTerrorMagazine"Anti-Defamation League 19 July
2010
26. "AlQaeda launches English language magazine" CNNlJuly 2010
27. "Al-Oaida launches English-language e-zine" United Press Intemational, Inc.lJuly 2010
28. "AlOaeda'sFirst English Language Magazine Is Here" The Atlantic 30 June 2010
29. "AlOaeda English Magazine Calls IbrTerror Attacks in the U.S."AntiDelamation League
4Nov2010

33848

UNITEDSTATESOF AMERICA
v^
Manning, BradleyE.
PFC, U.S.Army,
HHCU.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

Supplement to Government Addendum to
Motion toTake Judicial Notice dated
16November2012
Enclosurel
11 January 2013

Link by Link - A Vision of I g ^ n d as a Haven for Joumalists - NYTimq^l^m

Page 133849
of 3

# f ^cku J|ork Eimes
This copy IS for your personal, noncommercfgl use only You C9n order presentation-regdy copies for distribution to
your colleagues, clients or customers hare or use ttie "Reprints" tool that appears next to any article. Visit
www.nytreprints.com for samples and 9dditionai intorm9tion Order a reprint of this grticle now.

February 22, 2010
LINK BY LINK

A Vision of Iceland as a Haven for Journalists
By NOAM COHEN

ICELAND, where the journalists run free.
A banking scandal nearly bankrupted this tiny island nation (population: barely 300,000) little more than a
year ago, but Iceland is considering a new vision: to become a haven for journalists and publishers by
offering some ofthe most aggressive protections for free speech and investigative joumalism in the world.
The proposal, the Icelandic Modem Media Initiative, combines in a single piece of legislation provisions
from around the world: whistle-blower laws and mies about Internet providers from the United States;
source protection laws from Belgium; freedom of information laws from Estonia and Scotiand, among
others; and New York State's law to counteract "libel tourism," the practice of suing in courts, like Britain's,
where journalists have the hardest time prevailing.
"We would become the inverse of a tax haven," said Birgitta Jonsdottir, a member of Parliament and a
sponsor of the initiative. "They are trying to make everytiiing opaque. We are trying to make it transparent."
For many observers, this legislation represents a direct reversal of recent Icelandic history. Secret dealings
by a few banks in Iceland, combined with a lack of regulation and oversight, led to calamitous debts that
were nine times the gross domestic product. In response, Iceland would institutionalize the most aggressive
sunshine laws possible.
There are 19 sponsors of the media initiative in the Althing, Iceland's Parliament; that is about a third of the
membership, representing all parties on the political spectmm, Ms. Jonsdottir said. The legislation is set to
be debated this week. While the left-leaning government that took power after the crisis can have no official
position on the proposal, she said, presumably it would be sympathetic to the idea.
The plan to make Iceland a world leader in journalism protection took shape in December with the
assistance of two leaders of the whistle-blower Web site Wikileaks.org, Julian Assange and Daniel Schmitt,
whose publish-nearly-anything ideology has given them personal experience with news media laws around
the globe.
They outiined the idea at the annual meeting of the Icelandic Digital Freedoms Society, and relocated there
in January to help local advocates and politicians draft the legislation.
The pitch was, in part, practical: much the way businesses relocate to countries like the Cayman Islands or
Svwtzerland to take advantage of legal protections and shield laws for bank accounts, publications would
relocate to Iceland — or at least relocate their computer servers that publish their Web sites — in order to
get the benefits, and gain access to Iceland's plentiful energy resources.

http://www.nytimes.com/2010/02/22/business/media/221ink.html?_r= 1 &pagewanted=print

1 /10/2013

Link by L i n k - A Vision of l ^ ^ d as a Haven Ibr Joumalists-NVTim^^m

Page 233850
of 3

"Iceland could become an ideal environment for Internet-based intemational media and publishers to
registertheir services, startups, data centers andhuman rights organizations,"reads the Web site, which
explains the proposal and answers questions about iL"It could bealeverforthe economy and create new
workemploymentopportunities."
But, of course, there isastrong moral claim being made as welL And the timing for such an appeal was
ideal, said Smart McCarthy ofthe digital freedoms organization. The population was shaking oftthe shock
ofthe economic crisis and dealing v^th the humiliation ofneedingftnancial assistance from European
neighbors.
"Throughout the mn-up to the crisis^thebubble^people were so excited with what theywere doing,"
said Mr.McCarthy, who has an Irish parent but has lived in Iceland since he was rr."Suddenlythat dream
disappears. People had the option of sinking into some sort of sadness about it, some national depression,
orthe altemative, trying to tigureoutanewway of doing things."
Tosome experts on howthe Internet is changing media law,the Iceland initiative should be hailed more for
its bold thinking than for oft^ering genuine legal protection.
"The proposal is largely symbolic^which is not to sayunimportant,"saidDavidArdia, who mns the citizen
media lawproject at the Berkman Center ofllarvard Law School."Its impacts are likelyto be felt long
term."
For example, he praised the wisdom of ofteringapackage of proposals touching on hov^nev^s is gathered,
distributed and read^thus, issues like lntemetprivacy,protection for search engines and compensation
for defending frivolous lawsuits are all considered part ofprotecting free speech.
"There isavalue in thinking holistically about creating an environmentto foster good joumalism,"be said.
"Institutionsofpowerhaveshownawillingnesstousetheirpowertostopreportingtheydon'tlike^
anything that levels the playing field isagood thing."
He was more skeptical, hov^ever,of the idea that Icelandic law could protect joumalism as it was practiced
somewhere else, simply because oflegal registration orwhere Intemet servers were located.
^Obviously Iceland can't passalawthat could affectthe domestic laws of another country —that changes
tbelawinChina, PakistanorTurkey,"besaid.
"It can saythat its courts won't enforceajudgment rendered in another country'scourts,"he added, but as
longasthepublicationhasresourcesinthatcounb:y,itwouldbevulnerable."Mostjoumalismisdoneon
the ground —itis greatthat servers getthese protections, but it won't help local sites."
That such an unprecedented package ofprotectionshasachance of passing isarellectionofhowthe crisis
realigned lceland'spolitics,afacttypified bythe ascendance ofMs.Jonsdottir,a4^-yearold writer,
designer and Intemet activisL
In an interviewfrom the capital, l^eykjavik, she describedaperipatetic life that includedabrief stint selling
Rirbyvacuum cleaners in New Jersey.Before entering Parliament inApril, she said, she was translating and
designing books, and organizing protests about Tibet outside the Chinese Embassy.

http://www.nytimes.com/2010/02/22/business/media/221ink.html?_r= 1 &pagewanted=print

1/10/2013

Link by Link - A Vision of l ^ ^ d as a Haven for Joumalists - N Y T i m ^ ^ m

Page 333851
of 3

Two-thirds ofthe members of Parliament, like her, have been serving less than two years, she said.
" I would never have decided to go for Parliament, if there wasn't a crisis," she said. Her party, the
Movement, was created barely eight weeks before the election, and despite having little money, gained 7
percent of the vote.
Now Ms. Jonsdottir holds regular meetings with the prime minister, and is taking up the task of
shepherding the media-protection proposal out of committee and into law.
"Legislation tends to go into a long, deep coma in committee, and all of my effort will be to get it out of
committee," she said. "The good thing about being new in Parliament is not knowing the traditions."
Copyright 2010The New York Times Companv
Privacy Policy | Terms of Service I Search I Corrections | J j | I First Look I Help I Contact Us I Work for Us I Site Map

http://www.nytimes.com/2010/02/22/business/media/221ink.html?_r=l&pagewanted=print

1/10/2013

33852

UNITED STATESOF AMERICA
V.

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

Supplement to Government Addendum to
Motion to Take Judicial Notice dated
16 November 2012
Enclosure 2
11 January 2013

WikiLeaks editor: why I'm ej^j^d about Iceland's plans for joumalism ^ ^ i a | The Qua... Page 33853
1 of 3

theguanUan

ORGANGRINDER

WikiLeaks editor: why I'm excited about
Iceland's plans for journalism
Iceland's 'Modern Media Initiative' could turn it into something new
in the world - a journalism haven

In my role as WikiLeaks editor, I've been involved in fighting off more than lOO legal
attacks over the past three years. To do that, and keep our sources safe, we have had to
spread assets, encrypt everything, and move telecommunications and people around the
world to activate protective laws in different national jurisdictions.
We've become good at it, and never lost a case, or a source, but we can't expect everyone
to make such extraordinary efforts. Large newspapers, including the Guardian, are
forced to remove or water down investigative stories rather than risk legal costs. Even
internet-only publishers writing about corruption find themselves disconnected by their
ISPs after legal threats. Should these publications not relent, they are hounded, like the
Turks & Caicos Islands Journal, from one jurisdiction to other. There's a new type of
refugee - "publishers" - and a new type of intemet business developing, "refugee
hosting". Malaysia Today is no longer published in Malaysia. Even the American
Homeowners Association has moved its servers to Stockholm after relentless legal
attacks in the United States.
That's why I'm excited about what is happening in Iceland, which has started to see the
world in a new way after its mini-revolution a year ago. Over the past two months I have
been part of a team in Iceland advising parliamentarians on a cross-party proposal to
turn it into an international "joumalism haven" - a jurisdiction designed to attract
organisations into publishing online from Iceland, by adopting the strongest press and
source protection laws from around the world.
Because of the economic meltdown in the banking sector, which, per capita, was the
largest of any westem country, Icelanders believe that fundamental change is needed in
order to prevent such events from taking place again. Those changes include notjust
better regulation of banks, but better media oversight of dirty deals between banks and
politicians.
In feet, Iceland's banks became fans of libel tourism. For instance, the largest,
Kaupthing, succeeded in bringing a libel suit against a Danish tabloid, Ekstra Bladet, in
London. A similar Danish article looking into the alleged Russian connections of
Landsbanki, Iceland's second-largest bank, and its online banking arm Icesave, was also
attacked and removedft-omthe online public record.
Then, on 31 July last year, WikiLeaks released Kaupthing's confidential large loan book,
which exposed €6bn of loans. Kaupthing threatened us and our source with a year in
prison under Icelandic banking secrecy law. The leak was to become a major story, but
five minutes before the national broadcaster, RUV, could report it, the news desk was
slapped with an injunction by Kaupthing. The first such Icelandic newsdesk injunction
in living memory. Lost for words, RtJV filled the time with an image of WikiLeaks,
outraging the public, who could all access a copy of the primary source document.

hti:p://www.guardian.co.uk/media/organgrinder/2010/feb/15/wikileaks-editor-excited-icela...

1/10/2013

WikiLeaks editor: why I'm e^|gj^d about Iceland's plans for joumalism j ^ ^ i a | The Gua... Page 233854
of 3

This is the backdrop which has led to tbe development of the "Icelandic Modem Media
Initiative", a proposal that binds the govemment to draft legislation to develop an
attractive package offreespeech and openness laws, including source protection,
intemal media communications protection, protection from libel tourism, immunity for
intermediaries such as ISPs, and a tight statute of limitations on litigation. It is to be
filed by tomorrow and has cross-party support, including from the governing coalition.
Although the political environment in Iceland is still highly charged over the 6 March
referendum about the Icesave dispute, it is expected to be voted through. Not
surprisingly, the foreign press has developed an interest in the proposal. All over the
world, thefreedomto write about powerful groups is being smothered. Iceland could be
the antidote to secrecy havens, rather it may become an island where openness is
protected - a joumalism haven. Sleet Street 2.0.
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33856

UNITED STATESOF AMERICA
y^

Mannin^,BradleyE.
PFC, U S Army,
HHCU.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Supplement to Government Addendum to
Motion toTake Judicial Notice dated
16November2012
Enclosure3
11 January 2013

Iceland plans future as glob^^ven for freedom of speech | World new^^e Guardian

Page 33857
1 of 3

theguanUan

Iceland plans future as global haven for
freedom of speech
• Opposition MPs propose strong press protection laws
• Wikileaks advising on creation of safe port for journalism
MarkTran
The Guardian, Friday 12 February 2010 10.09 EST

Iceland t-imld be reborn as a .safe port for journalism Photograph: Frank Krahmer/Getty Image.s

Iceland intends to become a bastion for global pressfireedomunder a package of laws
proposed by opposition MPs to defend fireedom of speech, and protect sources and fight
libel tourism.
With the help of Wikileaks. the online whistleblowing site, the MPs have launched the
Icelandic Modern Media Intiative. vyith the goal of turning the country into a global
haven for investigative journalism.
The proposal, which has widespread backing among Iceland's 51 MPs, is scheduled to
come before the Althingi, Iceland's parliament, next Tuesday, in the first step towards
tuming the idea into law.
"It is a good project for political change," said R6bert Marshall, a member of the ruling
Social Democratic Alliance party. "We have been through a difficult period and this is an
initiative that can unite the whole political scene."
As a former joumalist Marshall is keen on the creation of the Icelandic Prize for
Freedom of Expression. A haven for free expression would, he said, help counter the
growing practice of libel tourism. British courts in particular, have become a favoured
destination for complainants seeking to take advantage of the UK's plaintiff-friendly
libel laws. The House of Lords recently established a government panel to look into the
possibility of amending its laws to make it tougher for foreigners to bring defamation
suits in Britain, amid fears that current British law was having a "chilling effect" on
freedom of expression.
With a population of just 320,000, Iceland's ambition to transform itself from a country
heavily dependent upon fishing into a financial powerhouse, went up in smoke after the
2008 credit crunch. The failure of Landsbanki and the bailout of its online savings bank.

»

http://www.guardian.co.uk/world/2010/feb/12/iceland-haven-freedom-speech-wikileaks

1/10/2013

••^r..ir-

Iceland plans future as globaj^^en for freedom of speech | World new^^j^e Guardian

Page 33858
2 of 3

Icesave. left Icelanders picking up the tab after the govemment had to find hinds to
repay creditors in Britain and the Netherlands.
The new legislation has won support fi'om Julian Assange and Daniel Schmitt, the cofounders of the Wikileaks website.
Assange vyrote in an email from Iceland last week: "I have been [here] the past few
weeks advising parliamentarians here on a cross-party proposal to tum Iceland into an
intemational journalism haven' - a jursidiction designed to attract organisations into
publishing online from Iceland, by adopting the strongest press and source protection
laws from around the world."
Assange said that in his role as Wikileaks editor, he had been involved in fending off
many legal attacks. "We've become good at it, and never lost a case, or a source, but we
can't expect everyone to go through the extraordinary efforts what we do. Large
newspapers are routinely censored by legal costs. It is time this stopped. It is time a
country said, enough is enough, justice must be seen, history must be preserved, and we
will give shelterfromthe storm."
Wikileaks, which publishes anonymous submissions and leaks of sensitive documents
while attempting to protect the identity of whistleblowers, has currently suspended
operations, other than the submission of material, because offinancialproblems. The
website says it will resume once operational costs have been covered.
When the Guardian was prevented from publishinp documents on the alleged dumping
of 400 tonnes of toxic waste on behalf of the global commodities trader Trafigura
because of a super-injunction, the material ended up on Wikileaks days later.
The site played a role in Iceland'sfinancialcrisis last summer wben a national TV
broadcaster was blocked from revealing a list of creditors in the country's banking
debacle. The broadcaster ran the url for the Wikileaks disclosure instead.
Following onfromthat brouhaha, Assange and Schmitt went to Iceland early December
to discuss their idea for a joumalism publishing haven on a talk show, then in a more
detailed presentation at Reykjavik University, according to Jonathan Stray, a blogger for
the Nieman Joumalism Lab.
Birgitta Jonsdottir, of The Movement, a political party with three MPs, is confident the
measure will become law. "From what I have experienced from discussions with MPs
from all the different parties, there is incredible goodwill," she told the BBC.

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http://www.guardian.co.uk/world/2010/feb/12/iceland-haven-freedom-speech-wikileaks

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33860

UNITED STATESOF AMERICA
y^

Manning,BradleyE.
PFC, U.S.Army,
HHCU.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

Supplement to Government Addendum to
Motion toTake Judicial Notice dated
lONovember 2012
Enclosures
11 January 2013

BBC News - Wikileaks and j^gj^nd MPs propose joumalism haven'

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Wikileaks has provoked the dream of Iceland becoming a haven for whistleblowing
I c e l a n d could become a " j o u r n a l i s m h a v e n " if a proposal p u t
f o r w a r d b y s o m e I c e l a n d i c MPs a i d e d b y w h i s t l e - b l o w i n g
website Wikileaks succeeds.

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The Icelandic Modern Media Initiative (IMMI), calls on the country's
government to adopt laws protecting journalists and their sources.
It will be filed with the Althingi - Iceland's parliament - on 16 February.
If the proposal succeeds It will require the Icelandic government to
consider introducing legislation.
Julian Assange, Wlldleaks' editor, told BBC News that the idea was to
"try and reform Iceland's media law to be a very attractive jurisdiction
for investigative journalists".
He has been In Iceland for a number of weeks and is advising MPs on
the IMMI.

http://news.bbc.co.Uk/2/hi/8504972.stm

The BBC Is not responsible for the content of extemal
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The hope is that journalistfriendly laws will encourage
media businesses to move to
Iceland.
"If It then has these additional
media and publishing law
protections then it is likely to
encourage the International
press and internet start-ups
to locate their services here,"
Mr Assange said.

IMMI
Wikileaks

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1/10/2013

BBC News - Wikileaks and Mkind MPs propose joumalism haven'

He believes the political mood
In Iceland Is receptive to the
need for change.

Alastair Mullis, Professor of Law, University of
^ " ^ " s concerns at possible law

changes

"The Icelandic press has itself suffered from libel tourism, so there
does seem to be the political will to push this through."

Page 233862
of4

Deadly blast In Pakistan's Quetta
whales freed from Canada ice trap
. Most popular now, in detail

Wikileaks is a non-profit website that has established a reputation for
publishing leaked material.
In October 2009, It posted a list of names and addresses of people
said to belong to the British National Party (BNP).
Other high-profile documents hosted on the site include a copy of the
Standard Operating Procedures for Camp Delta, a document that
detailed restrictions placed on prisoners at Guantanamo Bay,
I t recently had t o suspend operations because of a lack of funding.
Legal threats
The IMMI aims to pull together good practice from around the world
and incorporate it into a single body of law.
"We've found good laws in different countries but no country that has
all o f t h e s e laws put together," said Mr Assange.
The proposal has been informed by Wikileaks' experience In fighting
legal threats to publication.
"In my role as Wikileaks editor, I've
We don't want to be the
been involved In fighting off many
Vikings of transparency in the
legal attacks," Mr Assange said in
way the bankers presented
an e-mail.
themselves
"To do that, and keep our sources
Birgitta Jonsdottir
safe, we have had to spread assets,
encrypt everything, and move telecommunications and people around
the world to activate protective laws in different national jurisdictions.
"We've become good at it, and never lost a case, or a source, but we
can't expect everyone to go through the extraordinary efforts that we
do."
Measures In the IMMI Include legal protection for sources and
whistleblowers and the protection of communications between sources
and journalists.
'Transparent nation'
The proposals also include steps to end so-called "libel tourism", the
practice of pursuing libel actions in the most favourable legal
jurisdiction irrespective of where the parties are based.
But legal threats are faced not just by journalists, but by publishers,
Internet hosts and other "intermediaries", Wikileaks said. As a result,
the proposals Include plans to clarify the protection for "mere
conduits".
Wikileaks has been working with a
small group of Icelandic legislators
on the issue.
One of the proposal's supporters,
Birgitta Jonsdottir of The
Movement, a political party with 3
MPs in the Icelandic parliament,
told the BBC that she was
confident the measure would
become law.

Griffin says leaked BNP list fake

Palin e-mail hack details emerge
"From what I have experienced
from discussions with MPs from al the different parties, there is
Incredible good will," she said.
But the troubles of the financial sector may lead some Icelanders to be
sceptical of efforts t o transform their country and Ms Jonsdottir is
aware of the need not to make exaggerated claims,
"We don't want to be the Vikings of transparency in the way the
bankers presented themselves," she said.

http://news.bbc.co.uk/2/hi/8504972.stm

1/10/2013

BBCNews Wikileaks and^^^nd^Ps propose'journalism haven'

^^^^B

Page3of4
33863

But Ms Jonsdottir believes that m a k i n g a s t r o n g statement In favour of
freedom of expression could b e a w a y for Iceland to c r e a t e a p o s i t i v e
new identity.
"Thereare still very many Icelanders who feel a s h a m e d . I t h i n k it is
part of the self recovery we have to go t h r o u g h , " s h e said.
'IPositi^e s u p p o r t '
A t a m e e t i n g w i t h a s m a l l group oflcelandic MPs about the I M M I , t o
which the BBC had exclusive access, Mr Assange stressed how
Iceland's image would benefit from b e c o m i n g a c h a m p l o n of free
speech.
For example, one of the proposals calls for the creation of The
Icelandic Pri^e for Freedom of Expression which "promotes Iceland and
the values represented In this proposal".
Whether arguments like that are
^t seems the r^elandl^
persuasive enough to convincea
proposal is going to p^ll all those
majority of Iceland's legislators
laws together and pot them in o ^
remains to be seen. Mr Assange
says that at present around 1 ^ MPs
Julian Assange
are known t o support t h e proposal.
There is also Interest In the IMMI among some members of the
Icelandic government.
The Icelandic Minister for Education Culture and Sports Katrin
Jakobsdottir told the BBC that she thought that "the general idea was
good" and said that she thought that It "might get positive support ".
But she stressed that it was very early days and that the changes
would involve many ministries.
She said that elements of the proposal coincided with changes to
media law currently being considered by her department.
But not everyone is convinced of the need for an Icelandic "journalism
haven".
Andrew Scott Senior,lecturer in law at the London School of
Economics a n d a c r l t i c of the need for extensive libel reform in the LIK,
said that caution was needed.
"The provisions allowing defendants to counter-sue libel tourists" in
their home courts could transform the humble Icelander I n t o a l e g a l
superman,virtually untouchable abroad for comment w r l t t e n - a n d
uploaded-athome,"hesaid.
""Its debatable whether such laws are ever appropriate."
His view is not shared by Mr Assange.
"We have received approximately t o o legal threats In the p a s t i l
months so we are keen to see legislation that protects the press and
guallty reporting", he said.
At present Wikileaks operates i n a n u m b e r of different jurisdictions to
"take advantage of good l a w s , " h e said.
""It seems the Icelandic proposal is going to pull all those laws together
and put them in one place."
^o^can^ear^rr^oBea^ot^ti^^^i^ea^s^^B'in^^he^^C's^u^er^ower^^
or^t^e^^C^or-^^Ser^^ce.

Bookmark with^

What are theses

^"^liclous ' ^ I g g ^ l e d d l t ^ F a c e b o o k
. E-mail this to a fnend

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. Printable version

1/10/2013

BBC News - Wikileaks and JAjand MPs propose joumalism haven'

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33865

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

Supplement to Government Addendum to
Motion to Take Judicial Notice dated
16 November 2012
Enclosure 5
11 January 2013

33866

ll^^&ei
BBC News - Iceland's joumaIl|^freedom
dream prompted by Wikileaks'

PIN BBC TO YOUR TASKBAR BY DRAGGING THIS ICON i

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Iceland's j o u m a l i s m f r e e d o m dream p r o m p t e d by
Wikileaks

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Iceland's parliament is being presented with a proposal to protect whistle-blowing
media like the website Wikileaks.

country Profiles
Special Reports
Related BBC sites
Sport
Weather
On This Day
Editors' Blog
BBC World Service

The Icelandic Modem Media Initiative (IMMI) Is calling on the country's govemment to
adopt laws protecting joumalists and their sources.

W h y has I s r a e l
acted novw?

EDITOR'S CHOICE
Improvements to the
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a^m.

If the proposal succeeds the govemment must conskler Introducing legislation.
Iceland-based site Wikileaks gained notoriety in the UK last year for posting a list of
names and addresses of people saki to belong to the British National Party (BNP).

READ MORE: Iceland to be 'journalism haven'

SEE ALSO
Iceland law change reservations (OO.SO)
Website for 'whistle-blowers' (06.53)
'Decision to btog is risky but neccessary' (02.58)
Brown answers YouTube users (02.57J

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BBC News - Iceland's joumall^freedom dream prompted by Wikileaks^^

."S
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11/16/2012

UNITED STATES OF AMERICA
v.

Manning, Bradley E.

PFC, U.S. Army,

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

0 33868

Supplement to Government Addendum to
Motion to Take Judicial Notice dated
16 November 2012

Enclosure 6

11 January 2013



. . CAF 33869
Attachment 0 oo2e?lc?c?o22i~?ow

[Sender Account__ Sender Alias [Date-Time Message Text
2 Nathaniel Frank 20100305 00:56:32 5-6 hours for total upload?
1 #0 20005 03:32:57-u
:Nobody 201553305 03:33:31 no. it was like 5 minutes 4
- Nobody 20100305 03:36:21 ping
:Nobody 20100305 03:37:36'ping
Nob3dy" 20100305 should be good to go with
'Nobody 05:39:50 news??
r_ ?Nobody
- 'Nobod"y? 20100

Nathaniel Frank 2010-03-05 21 :07:49; hiya

1 "Tthaniel Frank 20100305 21 :08: 151 I ke debates.
Nathaniel Frank 2010-03-05 21 :09:277Just ?nished one on the IMMI. and crushed some
wretch from the journalists union.

7 20100305

5 Nathaniel Frank 20100305 21:11:24 or this?

Nobody 20100305 21:1 1:37 yeah
_N_athanieI Frank 20100305 21:11:56lNot videotaped, i think.

5 Nobody i 201003-05 21:12:04 ah
Nathaniel Frank 20100305 21:12:24 Very satisfying though

Nobody nod<

2 ?Nathaniel Frank 2010-03-05 21:12:44 Source here just gave me 10Gb"0t banking docs.

Nobody 20100305
Nathaniel Frank 2010-03-05 21:13:11 He leaked some before. was exposed by the husband
of the wretch.

Nathaniel Frank 2010-0305 21:13:27 cross-bank, was an it consultant.

Nathaniel Frank 2010-03-05 21:13:39 got anested two weeks ago

Nathaniel Frank 2010-0305 21:13:50 Had is bank accounts frozen.

;Nathanie| Frank 2010-03-05 21:14:02 and has been offered 15 million kroner to shut .

Nathaniel Frank 20100305



Nobody 20100305
2010-03-05 21 15:04 needed to offload them so they'd stop going
after him
3 Nobody 20100305 21:17:31 >yawn&lt:


2 Nobody 2010-03-05 21:20:54 waking up
2 Nathaniel Frank 2010-03-05 22:53:22 ping

?Natr'iair'i?i?e'l'Frank 2010-03-O523:41:17:ping

Nobody 2010-03-06 00:31:55 here

1 'N?o'66dTy 20100306 00:32:52'pong
Nobody 2010-03-06 00:39:19 zero reply status

"Nobody 20100306 06:40:54 ping

2 [Nathaniel Frank 2010-03-06 06:41:22-ping

;Nobody 20100306 06:41 :27 i pong

2 :Nathaniel Frank 20100306 you tell me more about these ?les?
3 ]Nathaniel Frank 20100306 status of the issue?
lNobody 20100306 06:41:58 no new everybody is focused
- on the election
i Nathaniel Frank 2010-03-06 06:42:07 wnat's the caps thing?
2 Nobody 20100306
i Nathaniel Frank 20100306 06:42:22
2 Nathaniel Frank 2010-0306 06:42:38 who's thez?ithor?
3 Nathaniel Frank "20100306 06:42:39'and are all these releasable?
Nobody 2010-03-06 much going
Nathaniel Frank_ 20100306 06:42:46 what about the english trar?ation?
Nathaniel FTank 2010-03-06 06:42:55 yes

e_ Nobody 2010-03-06 06:42:55 everything is notes
2 Nobody 2010-03-06 06:43:02 minu_s_the photos
2 Nobody 2010-03-06 06:43:13 the photos are releasable

5 Nathaniel Frank? 20100306 what about the incident report?

Forensic report Personal Computer 1
of PFC MANNING



. . 33870
Attachment ROI

[Sender Account Sender Alias Date-Time Message Text
2 Nathaniel Frank 20100310 06:16:57 everywhere. gre_ater degrees or freedom. more ?uidity
and mixing.
Nobody 201003-10 06:17:23 always an interesting discussion
Nobody 20100310 06:17:26.ttyl
5 ?Nathaniel Frank 20100310 06:17:31 ?night?
:Nobody
Natha EH003-10 --
. fNobody m:59:52WwT
lNathaniel Frank 2010-03-10 21:00:22 350Gb of audio intercepts. But yotl knew already.
3 Nobody 2010-0310
Nobody 201003-1 021 :00:57 is that the only thing?

2 ?10o31o 21:01 :22'lots of smaller
3 __Not>odl
Nathaniel Frank 201003-10 21 :01 :44'e.g legal defense against tra?tfa which was
censored
2 Nathaniel Frank doing another segment on WL
?Nathaniel Frank 201003-10 21:02:35 canadian detainee docs
?:Nobody 20100310 21:02:43 canadian?
2 Nathaniel Frank . 2010-03-10 21:03:00 some russian and chinese stuff that I can't read

?Nobody hanaha
"Nathaniel Fian'k" 20100310 21:03:09 hen
?'?Natha?i'iel Frank 20100310 21:03:17.and a list of ALL the tea party volunteers
1 ?Nathaniel? Frank "2'010'031o 21:03.42 from glen beck's email

Nobody 2010-03-10 21:03:48 jesus fucking
2 'Nobody 2010-03-10 21:04:13 whats the big deal with that? because some people
take that seriously

Nathaniel Frank 2010-03-10 21:04:26 an analysis of the greenhouse gas output of
Australia&apos:s "earth hour" ?reworks

"-261" 0031 0' 21 04:32 (46 tonnes) g_
2 Nathaniel Frank 201003-10 21:04:57.The teaparty thing? lt's weird. but it should be
taken seriously

Nobody yeah, its one of grey areas between reality
and entertainment and ick

Nathaniel Frank 2010-0310 21:05:33 |t's the wing overclass (rox) organization of
the nghwing underclass. Think of them as brown



shirts.
Nobody 20100310 21 in reality?
Nobody 20100310 21:06:23lwell, i dont know what posting a list from glenn

beck's email will but hey, its transparency

Nathaniel Frank -20-10-O3-10 important because their organized free
labor.
Nathaniel Frank 2010-03-10 21:06.54 And they may or may not break free of their masters.

Nobody 2010-0310 21:07?64 ah

Nobody 2010-03-10 21:07:50 is it Ike the entire world is uploading to you?
Nathaniel Frank 2010-03-10 21:08:24 some hungarian finance things

Nathaniel Frank 20100310 21:0a:3_1 in

?Nathaniel Frank 2010-03-10 21 :08:527ots of gennan stuffi don't understand, but we

have people who do
Nobody 20100310 21:08:58 &g'tEnod&lt:

_N-obody .2010-03-10 21 ggnna leave younto work than
Nobody 2010-0310 21:09:50 get back up and get immi and start

publishing whatever you
Nathaniel Frank 20100310 21:10:oa'neh

Nathaniel Frank 2010-0310 21:10:16 a jazeera wi||_also have a new WL doco
Nathaniel Frank 2010-03-10 21:10:31 ?by the sarne_ producer who did piece
Nathaniel Frank 1 2010-03-10 21:11:36.agreernent between the royal mail and its union

Forensic report Personal Computer 10
of PFC MANNING



33871

. . CAF
Attachment ROI 0028-10-CID221-10117

Sender Account 'Sendgr__Alias [Date-Time Thlessage Text
|Nobody 2010-03-18 00:04:31 its like a classroom run by an overbearing

when a kid strikes back anonymously by sabotaging
I the the other kids get a little excited and
- rowdy. because they wanted too, but were afraid of

I getting the teacher is errtbarassed and cant
control the kids, so the teacher just makes an
announcement that the students should continue
working quiety after they have a look at the mess on
the desk that the teacher is cleaning up

Nobody 20100318 00:05:11 ithink thats a better analogy
Nobody 2010-03-18 00:37:17


font-family: Helvetica;
font-size:

Helvetica; font-size: 12pt:'> recommend: free (as
i in freedom) hardware vendor?

I

1
Nobody 2010-03-18 08:39:52 is wrong with LTC Packnett :10
Nobody 201043318 08:40:59 you don't con?rm, or even come off as poss bly
confinning

Nobody 2010-03-18 08:41:22 lol, slipped up in your lavor_ iguess
Nathaniel Frank 2010-03-18 08:41:31 eh?

_?NoboT' article cont?igthe?



authenticity of the 2008 report posted on 15th

_?NaW_a_r_ii?I_ _Fr_ank
Nathaniel Frank 2010-03-18 08:42:19 hilarious



Nobody 201003-18 08:42:57 i dont think he's going to continue to be the MI
. spokesperson
Nathaniel Frank 2010-03-18 08:43:04 they do break these ?E?iho?r'wheTbei'm'
.hammered
Nobooy_' sure

0

,Nathaniel Frank "2010-03-18 08:43:41 irefusing to confinn does make them look shadowy

I land untrustworthy I

N?ody 201003-18 08:43:45li just didnt realize how little it takes for them to
Nobody 2010-03-18 08:43:55 true. imshocked

Nathaniel Frank 2010-03-18 0814412 yeah. but remember.. rules arejust for the gnints

Nathaniel Frank 2010-03-18 08:44:32 like no spying on_citizens at the nsa
Nobody 2010-03-18 08:44-43 miich?is'?om'rnon

Nobody ?_20i0-03718 08:45:57 8.quot;oh fuck. this might be?a'U's
shouldn't we get this checked by the
"Fuck that. FBI is slow as ruck.
:we'll just keep listening in, capture him, and
'then turn him over&quot:

. "Nathaniel-Frank 2010-03-18 08:48:27 i prefer jen. also, too masculine looking

5 ,Nathaniei Frank 2010-03-18 08:48:57 heh

[Nathaniel Frank 201003-18 08:48:59 nevermine



0



of PFC MANNING

33872

UNITED STATESOF AMERICA
y^

Manning,BradleyE.
PFCUSArmy,
HHCUS.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Supplement to Government Addendum to
Motion toTakeJudicial Notice dated
16November2012
Enclosure7
IlJanuary 2013

110922\SIPR_22.225.41.22\E1\Att R\Att I

prepared
by
DoD and
presented at the hearing, only 9
percent of contractors in
Afghanistan and 28 percent of
contractors in Iraq arc U.S.
citizens.
The
rest
are
categorized as third-country
nationals
or host-country
nationals. In Afghanistan,
host-country nationals are 75
percent of all contractors,
according to DoD.
While some members of
the committee pointed to hiring
host-country nationals as a way
to stimulate local economies in
the field, Rep. Marcy Kaptur,
D-Ohio, said that practice risks
security breaches, especially
when
such
hires
aren't
adequately screened.
"I'm very concemed about
the security of our forces,"
Kaptur sai(j. Although hiring
locals may help foster good
relationships
with
local
communities, "each one is also
a potential for infiltration and a
breach."
"It is a concem, and it is a
risk," Assad responded. "We
are doing what we can do to
screen local nationals, but it is
a challenge."

into space. The current launch
vehicle, the space shuttle, is to
retire this year.
With Constellation over
budget and behind schedule,
the Obama administration
favors encouraging private
space companies to develop the
next generation of launch
vehicles.
While
others
praise
Obama's plan to invest in
commercial space companies,
Vittcr worries that one of the
real losers in all this will be the
U.S. military.
His logic: NASA is the
nation's biggest customer for
solid rocket motors, so i f
NASA drops out of the market,
prices for everyone else will
double. The military needs
solid rocket motors for
Minuteman ballistic missiles,
submarine-based
Trident
ballistic
missiles, missile
interceptors and all sorts of
tactical missiles.
The Na'vy, which has
studied the matter, says prices
wiU probably rise, but they
won't double.
During a Senate Armed
Services
strategic
forces
subcommittee hearing, Rear
Adm. Stephen Johnson, said he
De fenseNews. com
expects solid rocket motor
March 17, 2010
prices to rise 10 to 20 percent.
Hc assured Vittcr that 100
17. Senator Says Solid
percent price growth is not
Rocket Motor Costs
likely. Johnson heads Navy
Will Double, Navy
strategic systems programs.
Disagrees
Vitter, who has been
By William Matthews
sounding this alarm since the
Okay, everyone agrees - 2011 budget was unveiled Feb.
the cost of solid rocket motors 1, seemed unconvinced.
is going up. The question is
NASA provides 70 percent
how much.
ofthe business that sustains the
Sen. David Vittcr, R-La.,
solid rocket motor industry, he
insisted again March 17 that
said. If that vanishes, costs for
the cost of solid rocket motors
other
customers must increase
that the U.S. military needs for
its intercontinental ballistic more than 20 percent.
Not so, said Johnson.
missiles will
double i f
President Barack Obama gets NASA's requirements are so
different from the military's his way.
VittcT blames Obama's think size and weight - that
space strategy, as spelled out in eliminating NASA's demand
the 2011 budget, which would will not cause military rocket
cancel NASA's Constellation costs to double.
"It's a valid concern,"
program.
Johnson told Vitter. And costs
Constellation
is
may rise, possibly 20 percent.
developing the next rocket and
crew capsule to take humans But they won't double.
In other testimony, senior

MannlngB_00374313

33873

fRVFIIes

Air Force officials said they
plan to spend $5.5 billion over
the next six years to modernize
U.S. bombers. Those are the
B-52, the newest of which is
48 years old; the B - l , which
has been flying since 1986; and
the B-2, which dates to 1993.
While upgrading data
links, targeting pods and
avionics, the Air Force will
also begin designing a new
bomber that could be manned
or unmanned, supersonic or
subsonic. It didn't come up in
the subcommittee hearing, but
the Air Force has said that the
study alone will cost $2 billion
to $4 billion a year, with the
aim of developing a new
bomber by 2020.
ArmyTimes.com
March 17, 2010

18. Personnel Chiefs
Warn Against Cuts To
Bonuses
By Rick Maze, Staff writer
Despite
meeting
all
recruiting and retention goals,
the service personnel chiefs
pleaded with a House panel
Wednesday to keep paying
enlistment
and
selective
re-cnUstment bonuses.
Clifford
Stanley,
undersecretary of defense for
personnel and readiness, said
military pay and benefits
generally are competitive with
the private sector, and that
large
across-the-board
increases are not wanted or
needed.
"The state of military
compensation is healthy,"
Stanley told the House Armed
Serfices Committee's military
personnel panel. "For the first
time, we truly have the ability
to target pay with pinpoint
accuracy to achieve desired
aims and maximize effects of
dollars spent."
Service officials said they
may be recruiting and keeping
enough people to meet
numerical goals — and they
noted that they are reducing
bonus budgets — but they
worry about Congress cutting
too deeply.

page 18
The Air Force, for
example, wants $645 million
for bonuses in fiscal 2011, said
Lt. Gen. Richard Newton, that
service's deputy chief of staff
for manpower and personnel.
"These pays arc critical as
we shape the force to meet new
and emerging missions and
support
the
combatant
commanders in today's fight,"
Newton said.
Lt. Gca Richard Zilmcr,
the deputy Marine Corps
commandant for manpower
and reserve affairs, said the
Corps also is cutting bonuses
but continues to expect to need
significant entry bonuses to
meet goals for recruits in some
critically needed skills.
The Army budget for
bonuses was $4.9 billion in
fiscal 2009 and was reduced to
$4.4 bilhon this year. For 2011,
the Army wants $4.6 billion,
an amount that reflects the cost
of anniversary payments for
bonuses already signed, said
Maj. Gen. Thomas Bostick, the
Army's deputy chief of staff
for personnel.
New York Times
March 18,2010

19. Pentagon Sees A
Threat From Online
Muckrakers
By Stephanie Strom
To the list of the enemies
threatening the security of the
United States, the Pentagon has
added WikiLeaks.org, a tiny
online source of information
and
documents
that
govemments and corporations
around the world would prefer
to keep secret.
The Pentagon assessed the
danger WikiLeaks.org posed to
the Army in a report marked
"unauthorized
disclosure
subject to criminal sanctions."
It
concluded
that
"WikiLeaks.org represents a
potential force protection,
counterintelligence,
OPSEC
and INFOSEC threat to the
U.S. Army" — or, in plain
English, a threat to Army
operations and infonnation.
WikiLeaks, true to its

20100318.pdf

110922\S1PR 22.225.41.22\E1\AttR\Attl

33874

PR\Files

page 19

mission to publish materials
that expose secrets of all kinds,
published the 2008 Pentagon
report about itself on Monday.
Lt. Col. Lec Packnett, an
Army spokesman, confirmed
that the report was real. Julian
Assange,
the
editor of
WikiLeaks, said the concems
the
report
raised
were
hypotheticaL
"It did not point to
anything that has actually
happened as a result of the
release," Mr. Assange said. "It
contains the analyst's best
guesses as to how the
infbrmation could be used to
harm the Army but no concrete
examples of any real harm
being done."
WikiLeaks, a nonprofit
organizaticm,
has rankled
governments and companies
around the world with its
pubhcation
of
materials
intended to be kept secret For
instance, the Army's report
says that in 2008, access to the
Web site in the United States
was cut off by court order after
Bank Julius Baer, a Swiss
financial institution, sued it for
publishing
documents
implicating Baer in money
laundering, grand larceny and
tax evasion. Access was
restored after two weeks, when
the bank dropped its case.
Governments, including
those of North Korea and
Thailand, also have tried to
prevent access to the site and
complained about its release of
materials critical of their
governments and policies.
The Army's interest in
WikiLeaks appears to have
been spurred by, among other
things, its publication and
analysis of classified and
unclassified Army documents
containing infbrmation about
military equipment, units,
operations and "nearly the
entire order of battle" for
American forces in Iraq and
Afghanistan in April 2007.
WikiLeaks also published
an outdated, unclassified copy
of the "standard operating
procedures" at the military
prison in Guantdnamo Bay,
Cuba. WikiLeaks said the

MannlngB_00374314

document revealed methods by
which the military prevented
prisoners from meeting with
the Intemational Red Cross and
the
use
of
"extreme
psychological stress" as a
means oftorture.
The Army's report on
WikiLeaks does not say
whether WikiLeaks' analysis
of that document was accurate.
It does charge that some of
WikiLeaks's
other
interpretation of information is
flawed but does not say
specifically in what way.
The report also airs the
Pentagon's concern over some
2,000 pages of documents
WikiLeaks
released
on
equipment used by coalition
forces in Iraq and Afghanistan.
The Pentagon concluded that
such information could be used
by
foreign
intelligence
services, terrorist groups and
others
to
identify
vuhicrabilities, plan attacks and
build new devices.
WikiLeaks, which won
Amnesty International's new
media award in 2009, almost
closed Ais year because it was
broke and still operates at less
than its full capacity. It rehes
on donations from humans
rights groups, joumalists,
technology
buffs
and
individuals, and Mr. Assange
said it had raised Just
two-thirds of the $600,000
needed for its budget this year
and thus was not publishing
everything it had.
Perhaps the most amusing
aspect of the Army's report, to
Mr.
Assange,
was
its
speculation that WikiLeaks is
supported by the Central
Intelligence Agency. " I only
wish they would step forward
with a check if that's the case,"
he said.
San Antonio Express-News
March 18, 2010

20. Info-Gathering
OfGce Defended
By Guillermo Contreras,
Express-News
As
he
bats down
allegations that he ran an
off-the-books spy operation in

Afghanistan and Pakistan, a
civilian Defense Department
official has been locked out of
his office at Lackland AFB and
remains cautious about who
visits him at his San Antonio
apartment.
In interviews Tuesday and
Wednesday with the San
Antonio
Express-News,
Michael D. Fiu-long, 56, said a
report earlier this week in the
New York Times incorrectly
portrayed the now-suspended
program he ran.
Hc denied allegations that
he inappropriately diverted
millions of dollars for the
operation and said his military
superiors
approved
tiie
program, which at one point
was supervised by U.S.
commanders and a separate
NATO command.
Furlong is accused of
using civilian subcontractors to
secretly collect information
that later was used to target and
kill suspected militants.
Furlong claimed Robert
Young Pelton — who hosted
cable TV's "The World's Most
Dangerous Places" and was a
govenmient
subcontractor
related to Ftirlong's program —
reported "wild accusations"
about him to the CIA as part of
a "vendetta" that stoked the
agency to complain to the
Defense Department that the
program invaded its turf
He contended that CIA
officials were briefed about the
program's concept and a legal
opinion was sought that
deemed the eventual operation
lawfiil.
But the Pentagon has
launched internal and criminal
investigations of Furlong and
millions of dollars spent on the
program.
But Pelton said Furlong
tricked him and his business
partner into believing the
program was meant to gather
cultural
and
political
information in Afghanistan and
Pakistan, and that Furlong
added components to it meant
to gather intelligence that could
have resulted in people
working for his company — or
suspected militants — getting

killed.
"No, we're not engaged in
a vendetta against Michael
Furlong," Pelton said in an
interview.
He added that Furlong's
accusations are an attempt to
deflect blame for his own
ill-advised actions.
Pelton also denied having
made any claims to the CIA
about Furlong.
"That's a figment of Mr.
Furlong's quite imaginative
paranoia," Pelton said.
Furlong said he has been
denied access to documents
and e-mails he says can verify
his story.
"This is not about anything
but providing the best force
protection we can provide all
of those 20-somethings in
foxholes," Furlong said. "Ifs
about saving lives."
The Express-News was
unable to independently verify
many of Furlong's claims
because the military also
clamped down in light of the
investigations.
The Defense Department
said it was investigating the
allegations in the Times report,
and Furlong's claims after
being informed of tiiem by the
Express-News.
"The department is in the
process of gathering the facts
surrounding these allegations
to determine i f there was any
inappropriate
conduct,"
Pentagon spokesman Bryan
Whitman said by e-mail. " I f
any improprieties are found,
the department will take
^propriate corrective action."
A
U.S.
intelligence
official,
who
requested
anonymity because of the
sensitivity of the matter, said in
response to Furlong's claims:
"Both DOD and CIA opposed
what tills individual (Furlong)
was trying to do. If this activity
was fully authorized by the top
military brass, you've got to
ask yourself why DOD
launched an investigation. It
was DOD that shut it down,
after all."
"This wasn't a case of turf.
It was something that struck
both military and intelligence

20100318.pdf

33875

UNITED STATESOF AMERICA
y^

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

Supplement to Government Addendum to
Motion to Take Judicial Notice dated
16 November 2012
Enclosures
11 January 2013

WikiLeaks and Julian Paul Assange : The New Yorker

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THENLWYOaKEH
A REPORTER AT LARGE

NO SECRETS
Julian Assange's mission for total transparency.
by Raffi Khatchadourian
JUNE 7, 2010

he house on Grettisgata Street, in Reykjavik, is
a century old, small and white, situated just a
few streets from the North Atlantic. The shifting
northerly winds can suddenly bring ice and snow to
the city, even in springtime, and when they do a
certain kind of silence sets in. This was the case on
the moming of March 30th, when a tall Australian
man named Julian Paul Assange, with gray eyes
and a mop of silver-white hair, arrived to rent the
place. Assange was dressed in a gray full-body
snowsuit, and he had with him a small entourage.
"We are joumalists," he told the owner of the
house. Eyja^allajokull had recently begim erupting,
and he said, "We're here to write about the
Assange, the founder ofWikiLeaks, oversees
volcano." After the owner left, Assange quickly
a populist intelligence network. Digitally
closed the drapes, and he made sure that they stayed
altered photograph by Phillip Toledano.
closed, day and night. The house, as far as he was
concemed, would now serve as a war room; people called it the Bunker. Half a dozen
computers were set up in a starkly decorated, white-walled living space. Icelandic activists
arrived, and they began to work, more or less at Assange's direction, around the clock. Their
focus was Project B—Assange's code name for a thirty-eight-minute video taken from the
cockpit of an Apache military helicopter in Iraq in 2007. The video depicted American soldiers
killing at least eighteen people, including two Reuters journalists; it later became the subject of
widespread controversy, but at this early stage it was still a closely guarded military secret.
Assange is an intemational trafficker, of sorts. He and his colleagues collect documents and
imagery that govemments and other institutions regard as confidential and publish them on a
Web site called WikiLeaks.org. Since it went online, three and a half years ago, the site has

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published an extensive catalogue ofsecret material, rangingft-omthe Standard Gperating
Procedtrres at Camp Oelta, in Guantanamo Bay,and the "Climategate"emails ftom the
I^niversity ofEast Anglia, in England, to the contents ofSarahPalin'sprivatcVahoo account.
The catalogue is especially remarkable because WikiLeaks is not quite an organization; it is
better described asamediainstirgency.lt has no paid staft^, no copiers, no desks, noofftce.
Assange does not even haveahome.Ue travels ftom coLintry to country,staying with
supporters, orftiendsofftiends—ashe once put it to me,"I'mliving in airports these days."He
is the operation'sprime mover, and it is ^ i r t o say that WikiLeaks exists wherever he does. At
the same time, hundreds ofvolunteers ftom around the world help maintain the Web site's
complicated inftastructure; many participate in small ways, and between three and ftve people
dedicate themselves to it fttll time, ^ey members are known only by initials—M,ft^r instance—
even deep withinWikiLeaks,where communications are conducted by encrypted online chat
services.The secretiveness stems ftom the belief thatapopulist intelligence operation with
virtually no resources, designed to publicize inft^rmation that powerfttl institutions do not want
public,will have serious adversaries.
Iceland wasanatural place to develop ProjectB.In the pastyear, Assange has collaborated
with politicians and activists there to draftaftee-speech law of unprecedented strength, anda
nttmber ofthese same people had agreed to help him work on the video in total secrecy.The
video wasastriking artifact—an unmediated representation ofthe ambiguities and cruelties of
modem warlarc—and he hoped that its release would touch offaworldwide debate about the
conflicts in Iraq and Afghanistan. He was planning to unveil theft^otagebeft^reagroupof
reporters at the National Press Club, inWashington, on April ^th, the moming after Easter,
presumablyaslow news day.Toaccomplish this, he and the other members of the WikiLeaks
community would have to analyze the raw video and edit it intoashortftlm,buildastand-alone
Web site to display it, launchamedia campaign, and prepare docttmentation lor the footage—
allir^le^^thanaweek'^time.

Assange also wanted to insure that, once the video was posted online, it would be
impossible to remove. He told me that WikiLeaks maintains its content on more than twenty
servers around the world and on hundreds ofdomain names. ^E^penses are paid by donations,
anda^w independent well-wishers also run "mirror sites" in support.^Assange calls the site
"an uncensorable systemft^runtraceable mass document leaking and public analysis,"anda
government or company that wanted to remove content ftomWikiLeaks would have to
practically dismantle the Intemet itself So 1^, even though the site has received more thana
hundred legal threats, almost no one has ftled suit. Lawyers working Ibrthe British battk
Northem Rock threatened court action after the site published an embarrassing memo, but they
were practically reduced to begging.A^enyan politician also vowed to sue after Assange

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publishedaconftdential report alleging that President Oaniel arap Moi and his allies had
siphoned billions of dollars out ofthe country.The site'swork in ^enyaeamed it an award
ftom Amnesty IntemationaL
Assange typically tells wouldbe litigants to go to helL In 200^,WikiLeaks posted secret
Scientology manuals, and lawyers representing the church demanded that they be removed.
Assange'sresponse was to publish more of the Scientologists'intemal material, and to
atmouncc,"WikiLeaks will not comply with legally abusive requests ftom Scientology any
more thanWikiLeaks has complied with similar demands ftom Swiss bartks, Russian offshore
stem-cell centers,ft^rmerAftrcankleptocrats,or the Pentagon."
In his writing online, especially onTwitter, Assange is quick to lash out at perceived
enemies. By contrast, on television,where he has been appearing more ftequently,he acts with
uncanny sang-ftoid. lender the studio lights, he can seem—with his spectral white hair, pallid
skin, cool eyes, and expansive forehead—likearail-thin being who has rocketed to Earth to
deliver humanity some hidden tmth.This impression is magnifted by his rigid demeanor and his
baritone voice,which he deploys slowly,at low volume.
In private, however, Assange is often bemused and energetic. He can concentrate intensely,
in binges, but he is also the kind of person who will forget to rcserveaplane ticket, or reservea
plane ticket and forget to payft^rit, or payft^rthe ticket andft^rgetto go to the airport. People
arotmd him seem to want to careft^rhim; they make sure that he is where he needs to be, and
that he has not left all his clothes in the dryer before moving on. At such times, he can seem
innocent ofthe considerable inftuence that he has acquired.
f i t t i n g atasmall wooden table in the Bunker,Assange looked exhausted. His lartkyftame
^ w a s arched over two computers—one ofthem online, and the other disconnected ftom the
Intemet, because it was full ofclassifted military documents. ^In the tradecraft of espionage,
this is known as maintaining an "air gap."^ He hasacybersecurityanalyst'sconcem about
computer vulnerability,and habitually takes precautions to ftustratc eavesdroppers.Alowgrade lever ofparanoia mns through the WikiLeaks community. Assange says that he has
chased away strangers who have tried to take his picture for surveillance purposes. In March, he
publishedaclassifted military report, created by the Army Counterintelligence Center in 200^,
that argued that the site wasapotential threat to the Army and briefty speculated on ways to
deter govemment employees ftom leaking documents to it. Assange regarded the report asa
declaration ofwar, and posted it with the title "L^.S.Intelligence Planned to Oestroy
WikiLeaks."Ouringatriptoaconlerence belbre he came to the Bunker, he thought he was
being followed, and his lear began to inlcct others."I went to Sweden and stayed withagirl
who isaforeign editor ofanewspaper there, and she became so paranoid that the C.I.A.was
trying to get me she left the house and abandoned me,"hc said.

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Assange was sitting opposite RopGonggrijp,aOutch activist, hacker, and businessman.
Gonggrijp—thin and balding,withasoft voice—has known Assange wellft^rseveral years. He
had noticed Assange'spanicky communiques about being watched and decided that his help
was needed."Julian can deal with incredibly little sleep, andahellofalot of chaos, but even he
has his limits, andlcould see that he was stretching himself" Gonggrijp told me."I decided to
come out and make things sane again."Gonggrijp became the unofftcial manager and treasttrer
ofProjectB,advancing about ten thousand ettros to WikiLeaks toftnanceit. He kept everyone
on schedule, and made sure that the kitchen was stocked with food and that the Bunker was
orderly.
At arottnd three in the aftemoon, an Icelandic parliamentarian named Birgifta Jonsdottir
walked in. Jonsdoftir,who is in her forties,with long brown hair and bangs,waswearingashort
black skirt andablackT-shirt with skulls printed on it. She tookaWikiLeaksT-shirt ftom her
bag and tossed it at Assange.
"That'sforyou,"shesaid."Vou need to change."He put thcT-shirtonachair nextto him,
and continued working.
Jonsdottir has been in parliament ft^raboutayear, but considers herselfapoet,artist,writer,
and activist. Her political views are mostly anarchist."I was actually unemployed beforelgot
this job,"shee^plained."When we ftrst got to parliament, the staff was so nervous: here are
people who were protesting parliament,who were for revolution, and nowwe are inside. None
of us had aspirations to be politicians.Wehaveachecklist, and, once we're done,we are out."
As she unpacked her computer, she asked Assange how he was plarming to delegate the
work on ProjectB.More Icelandic activists were due to arrive; halfadozen ultimately
contributed time to the video, and about as many WikiLeaks volunteers ftom other countries
were participating. Assange suggested that someone make contact with Google to insure that
VouTube would host the footage.
"Too:rake^ure it i^ not takers dowr^ur^derpre^^ure7"^he^^ked.

"They havcamle that mentions gratuitous violence,"Assangesaid."Thc violence is not
gratuitous in this case, but nonetheless they have taken things down. It is too important to be
interfered with."
"What can we askMtodo7" Jonsdottir asked. Assange, engrossed in what he was doing,
didn'treply.
His concems about surveillance had not entirely receded. Gn March 26th, he had writtena
blast e-mail, titled "Something Is Rotten in the StateofIceland,"in which he describedatecnage Icelandic WikiLeaks volunteer'sstory ofbeing detained by local police for more than
twenty hours.Thevoltmteer was arrested for trying to break into the factory where his ^ther
worked—"the reasons he was trying to get in are not totally justifted,"Assange told me—and

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said that while in custody he was interrogated about ProjectB.Assange claimed that the
volunteer was "shown covert photos of me outside the Reykjavik restaurantlcelandicPish^
Chips,"whereaWikiLeaks production meeting had taken place inaprivate back room.
The police were denying key parts ofthe volunteer'sstory,and Assange was trying to leam
more. He receivedacall, and afteralcw minutes hung up."Guryotingftiend talked to one of
the cops,"hesaid."I was about to get more details, but my battery died."He smiled and looked
suspiciously at his phone.
"Weare all paranoid schizophrenics,"Jonsdottir said. She gestured at Assange, who was
still wearing his snowsuit."Just look at how he dresses."
Gonggrijp got up,walked to the window,and parted the drapes to peer out.
"Someone7" Jonsdottir asked.
"Just the camera van,"hedeadpanned."The brain-manipulation van."
^

taroundsi^ in the evening, Assange got up ftom his spot at the table.He was holdinga
hard drive containing ProjectB.The video—excerpts of mnninglootage captured bya
camera mounted on the Apache—depicts soldiers conducting an operation in eastem Baghdad,
not long afterthe surge began. Losing the Preedom ofinformation Act, Reuters has sought for
three years to obtain the video ftom the Army, without success. Assange would not identily his
source, saying only that the person was unhappy about the attack.The video was digitally
encrypted, and it took WikiLeaks three months to crack. Assange,acryptographer of
exceptional skill, told me that unlocking the ftle was "moderately difftcult."
People gathered in ftont ofacomputer to watch. In grainy black-and-white,we join the
crew ofthe Apache, ftom the Eighth Cavalry Regiment, as it hovers above Baghdad with
another helicopter.Awideangle shotftamesamosque'sdomein crosshairs.Weseeajumble
ofbuildings and palm trees and abandoned streets.Wehear bursts of static, radio blips, and the
clipped banter of tactical communication.Two soldiers are in mid-conversation; the ftrst
recorded words arc "G.^.,Igotit."Assange hit the pause button, and said,"In this video, you
will seeanumber of people killed."The footage, he e:^plained, had three broad phases."In the
ftrst phase, you will see an attack that is based uponamistake, but certainlyavery careless
mistake.In the second part, the attack is clearly murder, according to the deftnition ofthe
average man. And in the third part you will see the killing ofinnocent civilians in the course of
soldiers going afteralegitimate target."
The ftrst phase was chilling, in part because the banter ofthe soldiers was so ^ r beyond the
boundaries of civilian discottrse."Just fuckin',once you get on'em, just open'emup,"one of
them said.The crew membersofthe Apache came upon aboutadozen men ambling downa
strcet,ablock or so ftom American troops, and reported that ftve or si^ ofthe men were armed
with A^^7s; as the Apache maneuvered into position to ftre at them, the crew saw one ofthe

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Reuters joumalists,who were mi^ed in among the other men, and mistookalonglensed camera
ft^r an RPG. The Apaches ftred on the men for twenty-ftve seconds, killing nearly all ofthem
instantly.
Phase two began shortly afterward. As the helicopter hovered over the camage, the crew
noticedawounded survivor stmggling on the ground.The man appeared to be tmarmed."All
you gotta do is pick upaweapon,"asoldier in the Apache said. Suddenly,avan drove into
view,and three unarmed men mshed to help the wounded person."Wehave individuals going
to the scene, looks like possibly,uh, picking up bodies and weapons,"the Apache reported,
even though the men were helpingasurvivor, and were not collecting weapons.The Apache
ftred, killing the men and the person they were trying to save, and wounding two young
children in the van'sftont seat.
In phase three, the helicopter crew radioedacommanderto say that at least si^ armed men
had enteredapartiallyconstmcted building inadense urban area. Some of the armed men may
have walked over ftomaskirmish with American troops; it is unclear.The crew asked for
permission to attack the structure,which they said appeared abandoned."Wecan putamissile
in it,"asoldier in the Apache suggested, and the goahead was quickly given.Moments later,
two unarmed people entered the building. Though the soldiers acknowledged them, the attack
proceeded: three Hellftre missiles destroyed the building. Passersby were engulled by clouds of
debris.
Assange saw these events in sharply delineated moral terms, yet the footage did not oftcr
easy legal judgments. In the month before the video was shot, members ofthe battalion on the
ground, ftom the SixteenthIn^try Regiment, had suf^red more thanahundred andftfty
aftacks and roadside bombings, nineteen injttries, and four deaths; early that moming, the tmit
had been attacked by small-arms ftre. The soldiers in the Apache were matter-of-lact about
killing and spoke callously about their victims, but the ftrst aftack could be judged asatragic
mi^uoder^taodir^^.The attack or^ the van wa^ questionable—the use offeree ^eerr^ed neither

thoughtful nor measured—but soldiers arc permitted to shoot combatants, even when they arc
assisting the wounded, and one could argue that the Apache'screw,in the heat ofthe moment,
reasonablyjudged the men in the van to be assisting the enemy. Phase three may have been
ttnlawfiil, perhaps negligent homicide or worse.Piring missiles intoabuilding, in daytime, to
kill si^ people who do not appear to be of strategic importance is an excessive use of force.This
aftack was conducted with scant deliberation, and it is unclear why the Army did not investigate
it.
Assange had obtained intemal Army records of the operation,which stated that everyone
killed, exceptft^rthe Reuters joumalists,was an insurgent. And the day after the incident an
Army spokesperson said,"There is no question that Coalition Porces were clearly engaged in

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combat operations againstahostileforce."Assange was hoping that ProjectBwould undermine
the Army'sofftcial narrative."This video shows what modem warfare has become, and,Ithink,
after seeing it, wheneverpeople hear aboutacertain number of casualties that resulted dtiring
ftghting with close air support, they will tmderstand what is going on,"he said in the Bunker.
"The video also makes clear that civilians are listed as insurgents automatically,unless they are
children, and that bystanders who are killed are not even mentioned."
^ ^ ^ i k i L e a k s receives about thirty submissionsaday,and typically posts the ones it deems
credible in their raw,unedited state, with commentary alongside. Assange told me,"I
want to set upanew standard: ^scientiftcjoumalism.'If you publishapaper on ONA, you are
required, by all the good biological journals, to submit the data that has informed your
research—^the idea being that people will replicate it, check it,verify it. So this is something that
needs to be done for joumalism as welLThere is an immediate power imbalance, in that readers
are tmable to verily what they are being told, and that leads to abuse."Because Assange
publishes his source material, he believes that WikiLeaks is ftee to ofter its analysis, no matter
how speculative.In the case ofProjectB,Assange wanted to edit the raw footage intoashort
ftlmasavehicle for commentary.Porawhile, he thought about calling the ftlm "Permission to
Engage,"but ultimately decided on something more forceftrl: "Collateral Murder."He told
Gonggrijp,"Wewant to knock out this^collateraldamage'euphemism, and so when anyone
uses it they will thit^^collateral murder.'"
The video,in its original form,wasapuzzle—aftagmentofevidence divorced ftom
content. Assange and the others in the Bunker spent much oftheir time trying to piece together
details: the units involved, their command stmcture, the mies ofengagement, the jargon soldiers
used on the radio, and, most important, whether and how the Iraqis on the ground were armed.
"Gne of them hasaweapon,"Assange said, peering at blurry footage of the men walking
down the street."See all those people standing out there."
"Andthercisaguy with an RPG over his arm,"Gonggrijp said.
"I'mnot sure."Assangesaid."It does lookaliftle bit like an RPG."He played the footage
again."I'll tell you what is very strange,"hesaid."Ifit is an RPG, then there is just one RPG.
Where are all the other weapons7 All those guys. It is pretty weird."
The forensic work was made more dilftcult because Assange had declined to discuss the
mafter with military offtcials."I thought it would be more harmful than helpful,"he told me."I
have approached them before, and, as soon as they hear it is WikiLeaks, they are not terribly
cooperative."Assange was mtmingProjectBasasurprise aftack. He had encouragedarttmor
that the video was shot in Alghanistan in 200^,in the hope that the Oefense Oepartment would
be caught ttnprepared. Assange does not believe that the military acts in good faith with the

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media. He said to me,"What right does this institution have to knowthe story before the
public7"
This adversarial mind set permeated the Bunker. Late one night, an activist asked if
Assange might be detained upon his arrival in the Ignited States.
"Ifthereiseveratimeitwassaleformetogo,itisnow,"Assangeassuredhim.
"They say that Gitmo is nice this time of year,"Gonggrijp said.
Assange was the sole decision-maker, and it was possible to leave the house at night and
come back after sunrise and see him in the same place,working.^"Ispent two months in one
room in Paris once without leaving,"hesaid."People were handing me food."^ He spoke to the
team in shorthand—"I need the conversion stuff," or "Make sure that credit-card donations are
acceptable"—all the while resolvingftareupswith the overworked volunteers.Tokeep track of
who was doing what, Gonggrijp and another activist maintainedaworkftow chart with yellow
Post-Its on the kitchen cabinets.Elsewhere, people were translating the video'ssubtitles into
various languages, or making sure that servers wouldn't crash ftom the traftic that was expected
after the video was posted.Assange wanted the lamilies ofthe Iraqis who had died in the aftack
to be contacted, to prepare them for the inevitable media aftention, and to gather additional
information. In cori^unctionwithlceland'snational broadcasting service, RI^V,he sent two
Icelandicjoumalists to Baghdad to ftnd them.
By the end of the week,aftame-by-ftame examination ofthe footage was nearly complete,
revealing minute details—evidence ofabody onthe ground, for instance^that were not visible
by casual viewing. ^ " I am about twelve thousand ftamesin,"the activist who reviewed it told
me."It'sbeenamorbidday,going through these people'slast moments."^ Assange had decided
to exclude the Hellftre incident ftom the ftlm; the aftack lacked the obvious human dimension
ofthe others, and he thought that viewers might be overloaded with information.
The edited ftlm,which was eighteen minutes long, began withaquote ftom George Grwell
that A^^angeandMhad selected: "Political language!^ designed to make lie^^oundtruthftrl

and mttrdcr respectable, and to give the appearance of solidity to pure wind."It then presented
information about the joumalists who had been killed, and about the offtcial response to the
aftack. Por the audio of this section, oneofthe ftlm'slcelandic editors had layered in ftagments
ofradio banter ftom the soldiers. As Assange reviewed the cut, an activist named Gudmundur
Gudmundsson spoke up to say that the banter allowed viewers to "make an emotional bond"
with the soldiers. Assange argued that it was mostly fragmentary and garbled, but
Gudmundsson insisted: "It isjust used all the time fortriggering emotions."
"At the same time,we are displaying them as monsters,"the editor said.

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"But emotions always mle,"Gudmundssonsaid."By the way,Iworked on the sound
recording foraftlm,^ChildrenofNature,'that was nominated for an Gscar,soIam speaking
ftom experience."
"Well,what is your altemative7"Assange asked.
"Basically,bursts of sounds, interrupting the quiet,"he said.
The editor made the change, stripping the voices ofthe soldiers ftom the opening, but
keeping blips and whirs ofradio distortion. Assange gave the edit his ftnal approvaL
^

ate Saturday night, shortly before all the work had to beftnished,the joumalists who had
gone to Baghdad sent Assange an e-mail: they had found the two children in the van.The
children had livedablock ftom the location of the attack, and were being driven to school by
their latherthatmoming."Theyrememberthe bombardment, left great pain, they said, and lost
consciousness,"one of the joumalists wrote.The joumalists also found the owner of the
building that had been attacked by the Hellftres,who said that families had been living in the
structttre, and that seven residents had died.Theowner,aretired English teacher, had lost his
wile and daughter.An intense discussion arose about what to do with this news:Was it worth
using at the National Press Club, or was itabefter tactic to hold on to it7 If the military justifted
the Hellftreaftacks by claiming that there were no civilian casualties,WikiLeaks could respond
by releasing the information, inakind of ambush. Jonsdoftirtttmed to Gonggrijp,whose eyes
had welled up.
"Are you crying7" she asked.
" I am,"he said."G.I^.,G.I^.,it is just the kids.It htirts."Gonggrijp gathered himself
"Puck^" he said. Resuming the conversation about ambushing the Army,hesaid,"Anyway,let
them walk into this knile—"
"That isawonderful thing to do,"one ofthe activists said.
"Let them walk into this, and they will,"Gonggrijpsaid."Itisalogical response."
Jonsdottir was now in tears, too, and wiping her nose.
"Nowlwant to reedit the thing,"Assangesaid."I want to put in the missile attack.There
were three lamilies living in the bottom, so it wasn't abandoned."But it was impossible to
reedit the ftlm.The activists were working at capacity,and in several hours it would be Easter.
At halfpast ten in the moming, Gonggrijp pulled open the drapes, and the Bunker was ftlled
with sunlight. He was wearingalong-sleevedTshirt and black pants,fteshlywashed and
ironed, and he was struggling to keep everyone on schedule. Last-minute concems—among
them ftndingacriminaldelense lawyer in the L^nited States—were being addressed. Assange
was atacomputer, his posture upright as he steadily typed.
"How arc we on time7" he asked no one in particular.
"Wehave three hours,"Gonggrijp said.

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Assange wrinkled his brow and tumed his attention back to the screen. He was looking ata
copy ofclassifted mies ofengagement in Iraq ftom 2006, one ofseveral secret American
military documents that he was planning to post with the vidco.WikiLeaks scrubs such
documents to insure that no digital traces embedded in them can identily their source. Assange
was purging these traces as last as he could.
Reykjavik'sstreets were empty,and the bells ofacathedral began to tolL"Remember,
remcmbertheftfthofNovember,"Assange said, repeatingaline ftom the English folk poem
celebrating Guy Pawkes. He smiled, as Gonggrijp dismantled the workftow chart, removing
Post-Its ftom the cabinets andftushingthem down the toilet. Shortly before noon, there wasa
desperate push to clear away the remaining vestiges ofProjectBand to get to the airport.
Assange was unpacked and unshaven, and his hair wasamess. He was typing upapress
release.Jonsdoftir came by to help, and he asked her,"Can'tyou cut my hair while I'mdoing
this7"
"No,Iam not going to cut your hair while you are working,"she said.
Jonsdoftir walked over to the sink and made tea. Assange kept on typing, and afterafew
minutes she reluctantly began to trim his hair. At one point, she stopped and asked,"If you get
arrested,will you get in touch with me7"Assange nodded.Gonggrijp, meanwhile, shoved some
of Assange'sthingsintoabag.He settled the bill with the owner.Oishes were washed.
Pumitt^e was put back in place.People piled intoasmall car, and in an instant the house was
empty and stilL
^^^he name Assange is thought to derive ftom Ah Sang, or Mr. Sang,aChinese emigre who
settled on Thursday Island, offthe coast ofAustralia, in the early eighteen-hundreds, and
whose descendants later moved to the continent. Assangc'smatemal ancestors came to
Australia in the mid-nineteenth century, ftom Scotland and Ireland, in search of farmland, and
Assange suspects, only halfinjest, that his proclivity for wandering is genetic.His phone
numbers and c-mail address arc ever-changing, andhe can drive the people around him crazy
with his elusiveness and his propensity to mask details about his lif2.
Assange was born i n l ^ 7 I , i n the city ofTownsville, on Australia'snortheastem coast, but
it is probably more accurate to say that he was bom intoablttr of domestic locomotion. Shortly
after his ftrst birthday,his mother—I will call her Claire—marriedatheatre director, and the
two collaborated on small productions.They moved often, living near Byron Bay,abeachftont
community in New SouthWales, and on Magnetic Island,atiny pile of rock that Captain Cook
believed had magnetic properties that distorted his compass readings. They were tough-minded
nonconformists.^At seventeen, Claire had bttmed her schoolbooks and left home ona
motorcycle.^Their house on Magnetic Island bumed to the ground, and rifte cartridges that
Claire had kept for shooting snakes exploded likeftreworks."Mostof this period of my

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childhood was prettyTomSaw^er,"Assange told me."I had my own horse.Ibuilt my own raft.
Iwentftshing.Iwas going down mine shafts and tunnels."
Assange'smother believed that formal education would inculcate an unhealthy respect for
authority in her children and dampen their will to leam."I didn't want their spirits broken,"she
told me. In any event, the lamily had moved thirty-seven times by the time Assange was
fottrteen, making consistent education impossible. He was homeschooled, sometimes, and he
took correspondence classes and studied informally with university prolessors. But mostly he
read on his own,voraciously.He was drawn to science."I spentalot of time in libraries going
ftom one thing to another, looking closely at the bookslfound in citations, and followed that
trail,"he recalled. Hcabsorbedalargevocabulary,but only later did he leam howto pronounce
all the words that he leamed.
When Assange was eight, Claire left her husband and began seeingamusician,with whom
she had another child,aboy.The relationship was tempestuous; the musician became abusive,
she says, and they separated.Aftght ensued over the custody of Assange'shalfbrother, and
Claire lelt threatened, learing that the musician would take away her son. Assange recalled her
saying,"Now we need to disappear,"and he lived on the run with her ftom the age of eleven to
si^teen.Whenlasked him about the experience, he told me that there was evidence that the
man belonged toapowerful cult called the Pamily—itsmoftowas"I^nseen,L^r^own,and
I^nheard."Some members were doctors who persuaded mothers to give up their newbom
children to the cult'sleader, Anne HamiltonByme.The cult had moles in goverrmient, Assange
suspectcd,who provided the musician with leads on Claire'swhereabouts. In lact, Claire often
told ftiends where she had gone, or hid in places where she had lived before.
While on the rtm, Claire rentedahouse across the street ftom an electronics shop. Assange
would go there to write programs onaCommodore 6^, until Claire bought it for him, moving to
acheaper place to raise the money.He was soon able to crack into wellknownprograms,where
he found hidden me^^ages left by their creator^."The austerity of one'sinteraction witha
computer is something that appealed to me,"hcsaid."It is like chess—chess is very austere, in
that you don'thave many rules, there is no randomness, and the problem is very hard."Assangc
embraced lile as an outsider.He later wrote ofhimselfandateenageftiend,"Wewere bright
sensitive kids who didn'tftt into the dominant subculture andftercelycastigated those who did
as irredeemable boneheads."
When Assange tumed sixteen, he gotamodem, and his computer was transformed intoa
portaLWeb sites did not e^ist yet—thiswasl^^7—but computer networks and telecom
systems were sufftciently linked to formahidden electronic landscape that teen-agers with the
requisite technical savvy could traverse.Assange called himselfMenda^—ftom Horace's
.^/^^^^^^^^^^^^, or "nobly untruthftil"—andheestablishedareputationasasophisticated

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programmer who could break into the most secLire networks. Hejoined with two hackers to
formagroup that became known as the Intemational Subversives, and they broke into computer
systems in Europe and North America, including networks belonging to the L^.S. Oepartment of
Oelense and to the Los Alamos National Laboratory.Inabook called "I^nderground,"which he
collaborated on withawriter named SuelefteOreyftts, he outlined the hacker subculture'searly
Golden Rules: "Oon't damage computer systems you break into ^including crashing them^;
don'tchangc the information in those systems^e^cept for altering logs to coveryour tracks^;
and share information."
^

round this time, Assange lell in love withasi^teen-year-old girl, and he briefty moved out
ofhis mother'shome to stay with her."Acouple of days later, police turned up, and they
carted off all my computer stuft^,"herecalled.The raid, he said, was carried out by the state
police, and "it involved some dodgy character who was alleging that we had stolenftvehtmdrcd
thousand dollars ftom Citibank."Assange wasn't charged, and his equipment was retumed."At
that point,Idecided that it might be wise to beabit more discreet,"he said. Assange and the
girl joinedasquattcrs'tmion in Melbourne, until they learned she was pregnant, and moved to
be near Claire.When Assange was eighteen, the two got married in an ttnofftcialceremony,and
soon afterward they hadason.
Hacking remainedaconstant in his life, and the thrill of digital exploration was amplifted
by the growing knowledge, among the Intemational Subversives, that the authorities were
interested in their activities.The AustralianPederal Police had set up an investigation into the
group, called GperationWeather,which the hackers strove to monitor.
In Scptember,l^^I,when Assange was twenty,he hacked into the master terminal that
Nortel, the Canadian telecom company,maintained in Melboume, and began to poke aroimd.
The Intemational Subversives had been visiting the master terminalftequently.Normally,
Assange hacked into computer systems at night,when they were semidormant, but this timea
Nortel administrator was signed on. Sensing thathe might be caught, Assange approached him
with humor."! have taken control,"hewrote,without giving his name."Poryears,Ihave been
stmggling in this grayness. But nowlhaveftnally seen the light."The administrator did not
reply,and Assange sent another message: "It'sbeen nice playing with your system.Wedidn't
do any damage and we even improvedalew things.Please don't call the AustralianPederal
Police"
The International Subversives'incursions into Nortel tumed out to beacritical development
for GperationWeather.Pederal investigators tapped phone lines to see which ones the hackers
were using."Julian was the most knowledgeable and the most secretive ofthe lot,"^enOay,
the lead investigator, told me."He had some altmistic motive.Ithittk he acted on the belief that
everyone should have access to everything."

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"L^ndcrground" describes Assange'sgrowing fear of arrest: "Menda^ dreamed of police
raids all the time. He dreamed of footsteps crunching on the driveway gravel, of shadows in the
predawn darkness, ofaguntoting police squad btirsting through his backdoor at^am."
Assange could rela^ only when he hid his disks in an apiary thathe kept. By Gctober, he was in
aterrible state. His wile had left him, taking with her their infant son. His home wasamess. He
barely ate or slept. Gn the night the police came, the twenty-ninth, he wired his phone through
his stereo and listened to the busy signal ttntil eleven-thirty, when I^enOay knocked on his
door, and told him,"Ithittk you've been expecting me."
Assange was charged with thirty-one counts ofhacking and related crimes.While awaiting
trial, hc fell intoadepression, and briefty checked himselfintoahospitaL He tried to stay with
his mother, but afterafew days he took to sleeping in nearby parks.He lived and hiked among
dense eucalyptus forests in the Oandcnong Ranges National Park,which were thick with
mosquitoes whose bites scarred his face."Vourirmer voice quiets down,"he told me."Intemal
dialogue is stimulated byapreparatory desire to speak, but it is not actually useful if there are
no other people around."Headded,"Idon'twant to sound too Buddhist. But your vision of
yourself disappears."
It took more than three years for the authorities to bring the case against Assange and the
other Intemational Subversives to court. Oay told me,"Wehadjust formed the computercrimes team, and the govemment said,^Vour charter is to establishadeterrent.'Well, to geta
deterrentyou have to prosecute people, and we achieved that with Julian and his group."A
computer-security team working for Nortel in Canada drafted an incident report alleging that
the hacking had caused damage that would cost more thanahundred thousand dollars to repair.
The chief prosecutor, describing Assange'snearlimitless access, told the court,"It was God
Almighty walking around doing what you like."
Assange, lacingapotential sentence of ten years in prison, found the state'sreaction
confounding. I^e bought Aleksandr Sol;^henit^yn^^^^ThePir^tCircle,^^anovel about ^cienti^t^

and technicians forced into the Gulag, and read it three times. ^"How close the parallels to my
own adventttres^" he later wrote.^He was convinced that "look/see" hacking wasavictimless
crime, and intended to ftght the charges. But the other members ofthe group decided to
cooperate."Whenajudgesays,^The prisoner shall now rise,'and no one else in the room
stands—that isatest of character,"he told me.I^ltimately,he pleaded guilty to twenty-ftve
charges and si^ were dropped.But at his ftnal sentencing the judge said,"There is just no
evidence that there was anything other than sort ofintelligentinquisitiveness and the pleasure of
being able to—what'sthe expression—surf through these various computers."Assangc'sonly
penalty was to pay the Australian statcasmall sum in damages.

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As the criminal case was unfolding, Assange and his mother were also wagingacampaign
to gain fttll custody of Assange'sson—a legal ftght that was, in many ways, Iar more
wrenching than his criminal delense. They were convinced that the boy'smother and her new
boyftiendposcdadangerto the child, and they soughtto restrict hcrrights. The state'schild
protection agency,Health and Community Services, disagreed.Thespeciftcsofthe allegations
are unclear; lamily-court records in Australia are kept anonymous. But inl^^^aparliamentary
committee found that the agency maintained an "underlying philosophy ofdeftecting as many
cases away ftom itself as possible."When the agency decided thatachild was living inasafe
household, there was no way to immediately appeal its decision.
The custody battle evolved intoabifter ftght with the state."What we saw wasagreat
bureaucracy that was squashing people,"Claire told me.She and Assange, along with another
activist, formed an organization called Parent Inquiry Into Child Protection."Weusedftill-on
activist methods,"Claire recalled. In meetings with Health and Community Services,"we
would go in and tape-record them secretly."Thc organization used the Australian Preedom of
Information Act to obtain documents ftom Health and Community Services, and they
distributedftyersto child-protection workers, encouraging them to come forward with inside
information, fora"centraldatabattk" that they were creating."Vou may remain anonymous if
you wish,"oneftyer stated.Gne protection worker leaked to the group an important intemal
manuaL Assange told me,"Wehad moles who were inside dissidents."
In I^^^,after nearly three dozen legal hearings and appeals, Assange worked outacustody
agreement with his wile.Claire told me,"Wehad experienced very high levels of adrenaline,
andlthink that after it aft ftnishedlended up withP.T.S.O.It was like coming back ftomawar.
Vou just can't interact with normal people to the same degree, andlam sure that Jules has some
P.T.S.O.that is untreated."Not long after the coirrt cases, she said, Assange'shair,which had
been dark brov^, became drained ofall color.
^

ssange was bttmed out. He motorcycled across Vietnam. Hc held variousjobs, and even
eamed money asacomputcr-security consultant, supporting his son to the extent that he
was able.He studied physics at the L^niversityofMelboume.He thought that trying to decrypt
the secret laws goveming the universe would provide the intellectual stimulation and rush of
hacking.It did not. In 2006, onablog he had started, he wrote aboutaconference organized by
the Australian Institute ofPhysics,"with ^00 career physicists, the body of which were
sniveling fearful conformists of woefttlly,woefttllyinlerior character."
He had come to understand the deftning human stmggle not as left versus right, or laith
versus reason, but as individual versus institution. AsastudcntofI^afka,^oestler, and
Solzhenitsyn, he believed that tmth, creativity, love, and compassion arc cormptcd by
institutional hierarchies, and by "patronage networks"—one ofhis lavorite expressions—^that

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contort the human spirit. He sketched outamanilesto of sorts, titled "Conspiracy as
Govemance,"which sought to apply graph theory to politics. Assange wrote that illegitimate
govemance was by deftnition conspiratorial—the product offtjnctionaricsin "collaborative
secrecy,working to the detriment ofapopulation."He argued that, whenaregime'slines of
intemal communication are disrupted, the information ftow among conspirators must dwindle,
and that, as the ftow approaches zero, the conspiracy dissolves. Leaks were an instmment of
information warlare.
These ideas soon evolved intoWikiLeaks. In 2006, Assange barricaded himselfinahouse
near the university and began to work. In ftts of crcativity,he would write out ftow diagrams for
the system on the walls and doors, so as not to forget them.Therewasabed in the kitchen, and
hc invited backpackers passing through campus to stay with him, in exchange for help building
the site."He wouldn'tsleep at all,"aperson who was living in the house told me."He wouldn't
eat"
As it now ftinctions,theWcb site is primarily hosted onaSwedish Intemet service provider
called PRGse,which was created to withstand both legal pressure and cyber aftacks, and which
ftercely preserves the anonymity ofits clients. Submissions are routed ftrst through PRG,then
toaWikiLeaks server in Belgium, and then on to "another country that has some beneftcial
Iaws,"Assange told me,where they are removed at "end-point machines" and stored elsewhere.
These machines are maintained by e:^ceptionally secretive engineers, the high priesthood of
WikiLeaks. Gne ofthem, who would speak only by encrypted chat, told me that Assange and
the other public members ofWikiLeaks "do not have access to certain parts ofthe system asa
measttre to protect them and us."The entire pipeline, along with the submissions moving
through it, is encrypted, and the traftic is kept anonymous by means ofamodifted version of the
Tor network,which sends Intemet trafftc through "virtual turmcls" that arc extremely private.
Moreover, at any given time WikiLeaks computers are leeding hundreds ofthousands of fake
^ubmi^^ion^ through the^etunn^l^,ob^ct^ing the real documents. A^^ange told me that there are

stift vulnerabilities, but "this is vastly more secure than any banking network."
Before launching the site, Assange needed to show potential contributors that it was viable.
Gne oftheWikiLeaks activists ownedaserver that was being used asanode for thcTor
network. Millionsof secret transmissions passed through it.The activist noticed that hackers
ftom China were using the network to gather foreign governments'information, and began to
record this trafftc.Gnlyasmaftftaction has ever been posted onWikiLeaks, but the initial
tranche served as the site'sfotmdation, and Assange was able to say,"Wehave received over
one million documents ftom thirteen countries."
In Oecember, 2006,WikiLeaks posted its ftrst document:a"secretdecision,"signed by
Sheikh Hassan OahirAweys,aSomah rebel leader forthe Islamic Courts L^nion, that had been

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culled ftom trafftc passing through the Tornetwork to China. The document called forthe
execution of govemment offtcials by hiring "criminals" as hit men. Assange and the others were
tmcertain ofits authenticity,but they thought that readers, using Wikipedia-likefeaturesofthe
site, would help analyze it. They published the decision withalengthycommentary,which
asked,"Isitabold manifesto byaftamboyant Islamic militant with links to Bin Laden7Gr is it
aclever smear by L^S intelligence, designed to discredit the I^nion,ftactureSomaft alliances
and manipulate China7"
The documcnt'sauthenticity was never determined, and news about WikiLeaks quickly
superseded the leak itself Several weeks later,Assangeftew to ^enya forthe World Social
Portm^, an anti-capitalist convention, to makeapresentation about the Web site."He packed in
the futmiestwaylhavc ever seen,"the person who had been living in the house recalled.
"Someone came to pick him up, and he was asked,^Where is yotirluggage7'And he ran back
into the house.He hadasailor'ssack, and he grabbedawhole bunch of stuff and threw it in
there, mostly socks."
Assange ended up staying in ^enya for several months. He would check in with friends by
phone and through the Intemet ftom time to time, but was never precise about his movements.
Gne ftiend told me,"It would always be,^Where is Julian7'It was always difftcult to know
where he was. It was almost like he was trying to hide."
^ t t o o k about an hour on Easter moming to get ftom the house on Grettisgata Street to
Iceland'sintemationalairport,which is situated onalava fteld by the sea. Assange, in the
terminal,carriedathreadbare blue backpack that contained hard drives, phone cards, and
multiple cell phones.Gonggrijp had agreed to go toWashington to help with the press
conference. He checked in, and the ticketing agent ttimed to Assange.
" I am sorry,"she said to him."I carmot ftnd your name."
"Intcrcsting,"Assange said to Gonggrijp."Have fun at the press conference."
"No,"Gonggrijp told the attendant."Wehaveabooking I.O.number."
"It'sbeen conftrmed,"Assange insisted.
The attendant looked perplexed."! know,"shesaid."But my booking information has it
^cancelled'"
The two men e^changedalook:wasagoverrm^ent agency tampering with their plans7
Assange waited an^iously,but it tumed out that he had bought the ticket and neglected to
conftrm the purchase.He quickly bought another ticket, and the two men ftcw to NewVork and
then mshed to catch the AcelatoWashington.lt was nearly two in the moming when they
arrived.They got intoata^i, and Assange, who didn'twant to reveal the location ofhis hotel,
told the driver to go toanearby cross street.

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"Here we are in the lion'sden,"Gonggrijp said as the ta^i raced down Massachusetts
Avenue, passing rows of nondescript offtce buildings. Assange said,"Not looking too lionish."
Alcw hours after stmrise, Assange was standing atalcctcm inside the National Press Club,
ready to present "Collateral Murder" to the forty or sojoumalists who had come. Hewas
dressed inabrownblazer,ablack shirt, andared tie. He played the ftlm for the audience,
pausing it to discuss various details. Afterthe ftlm ended, he ran footage ofthe Hellftre attack—
awoman in the audience gasped as the ftrst missile hit the building—and read ftom the e-mail
sent by the Icelandic joumalists who had gone to Iraq. The leak, he told the reporters,"sendsa
message that some people within the military don't like what is going on."
The video, in both raw and edited forms, was released on the site that WikiLeaks had buih
for it, and also onVouTubeandanumber of otherWebsites.Within minutes after the press
conference, Assange was invited to AlJazeera'sWashington headquarters, where he spent half
the day giving interviews, and that evening MSNBC ranalong segment about the footage.The
video was covered in the 7^^^^,^, in multiple stories, and in every other major paper. Gn
VouTube alone, more than seven million viewers have watched "Collateral Murder."
Oelense Secretary Robert Gates was asked about the footage, and said, clearly irritated,
"These people can put anything out they want and are never held accountable for it."The video
was like looking at war "throughasodastraw,"hesaid."There is no before and there is no
after."Armyspokespeople insisted that there was no violation of the mies of engagement. At
ftrst, the media'sresponse hewed to Assange'sinterpretation, but, in the ensuing days, as more
conunentators weighed in and the military oflered its view,Assange grewftustrated.Much of
the coverage focussed not on the Hellftre attack or the van but on the killing ofthe joumalists
and on howasoldier might reasonably mistakeacamera for an RPG.GnTwitter, Assange
accused Gates ofbeing "a liar,"andbcseeched membersofthe media to "stop spirming."
In some respects, Assange appeared to be most armoyed by the joumalistic process itself—
"a craven bucking up to offtcial sources to imbue the eventual ^tory with some kind of offtcial

basis,"as he once put it.WikiLcaks has long maintainedacomplicatcd relationship with
conventional joumalism.Whcn, in 200^,the site was sued after publishing conftdential
documents ftomaSwiss bank, the Los Angeles 7^/^^,^, the Associated Press, and ten other news
organizations ftled amicus briefs in support. ^The bank later withdrew its suit.^But, in the
Bunker one evening, Gonggrijp told me,"Weare not the press."He considers WikiLeaks an
advocacy group for sources; within theftameworkof theWeb site, hcsaid,"the source is no
longer dependent onftndingajournalistwho may or may not do something good with his
document."
Assange, despite his claims to scientiftcjotrmalism, emphasized to me that his mission is to
expose itijustice, not to provide an evcn handed record of events. In an invitation to potential

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collaborators in 2006, he wrote,"Gur primary targets are those highly oppressive regimes in
China, Russia and Central Eurasia, but we also expect to be ofassistance to those in the West
who wish to reveal illegal or immoral behavior in their ov^ govemments and corporations."Hc
has argued thata"social movement" to expose secrets could "bring down many administrations
that rely on concealing reality—including the L^S administration."
Assange does not recognize the limits that traditional publishers do. Rcccntly,he posted
military documents that included the Social Sectiritynumbersof soldiers, and in the Buttkcrl
asked him ifWikiLeaks'mission would have been compromised ifhe had redacted these smaft
bits. He said that some leaks risked harming innocent people—"collateral damage, ifyou
will"—but thathe could not weigh the importanceof every detail in every document. Perhaps
the Social Security ntm^bers would one day be important to researchers investigating
wrongdoing, he said; by releasing the information he would allowjudgment to occur in the
open
Ayear andahalf ago,WikiLcaks published the results of an Army test, conducted in 200^,
ofelectromagnctic devices designed to prevent lEOs ftom being triggered. The document
revealed key aspects ofhow the devicesft^nctionedand also showed that they interfered with
communication systems used by soldiers—information that an insurgent could exploit. By the
time WikiLeaks published the study,the Army had begun to deploy newer technology,but
some soldiers were still using the devices.Iasked Assange ifhe would reftain ftom releasing
information that he knew might get someone killed. He said that he had instituteda"harmminimizationpolicy,"whereby people named in certain documents were contacted before
publication, to wam them, but that there were also instances where the members ofWikiLeaks
might get "blood on our hands."
Gne member told me that Assange'seditorial policy initially made her uncomfortable, but
that she has come around to his position, because she believes that no one has been tmjustly
harmed.Gf course, such harm i^ not always easy to measure.WTienA^^angewa^ looking fbr
board members, he contacted Steven Aftergood,who mns anemail newsletter for the
PederationofAmerican Scientists, and who publishes sensitive docttments.Aftergood declined
to participate."Whenatechnical record is both sensitive and remote ftomacurrent subject of
controversy,my editorial inclination is to err on the side of caution,"hesaid."I miss that kind
of questioning on their part."
At the same time, Aftcrgood told me, the overclassiftcation ofinformation isaproblem of
increasing scale—one that harms not only citizcns,who should be able to have access to
govemment records, but the system ofclassiftcation itself When too many secrets are kept, it
becomes difftcult to know which ones arc important. Had the military released the video ftom

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the Apache to Reuters under FOIA, it would probably not have becomeaftlm titled "Collateral
Murder,"andapublic relations nightmare.
Lieutenant Colonel Lec Packnett, the spokesperson for intelligence matters for the Army,
was deeply agitated whcnIcalledhim."We're not going to give validity to WikiLeaks,"he
said."Vou're not doing anything for the Army by putting us inaconvcrsation about WikiLeaks.
Vou can talk to someone else.It'snot an Army issue."As he saw it, once "Collateral Murder"
had passed through the news cycle, the broader cottnter-intelligencc problem that WikiLeaks
poses to the military had disappeared as welL"It went away,"he said.
^ ^ ^ i t h the release of"CollateralMurder,"WikiLeaks received more than two hundred
thousand dollars in donations, and on April 7th Assange wrote onTwitter,"Newftmding
model for jot^alism: try doing it forachange."Just this winter, he had put the site intoastate
of semi-dormancy because there was not enough money to rtm it, and because its techrtical
engineering needed adjusting. Assange has far more material than he can process, and he is
seeking specialists who can sift through the chaoticWikiLeaks library and assign documents to
volunteers for analysis. The donations meant that WikiLeaks would now be able to pay some
volunteers, and in late May its fuft archive went back online.Still, the site rcmainsaprojcct in
early development. Assange has been searching for the right way not only to manage it but also
to get readers interested in the more arcane material there.
In 2007,he published thousands of pages of secret military information detailingavast
nttmber of Army procurements in Iraq and Afghanistan. He andavolunteer spent weeks
buildingasearchable database, studying the Army'spurchasing codes, and adding up the cost
oftheprocttrements—billions of dollars in alLThe database catalogued materiel that every unit
had ordered: machine guns, HLtmvees,cash-cotmting machines, satellite phones. Assange hoped
that joumalists would pore through it, but barely any did."I am so angry,"hesaid."This was
suchaft^cking fantastic leak: the Army'sforce structure of Afghanistan and Iraq, down to the
last chair, and nothing."
WikiLeaks isaftnalistfora^nightPoundation grant of more than halfamillion dollars.
The intended project would set upaway for sources to pass documents to newspaper reporters
securely;WikiLeaks would serve asakindofnumbered Swiss bank account,where information
could be anonymously exchanged. ^Thesystem would allow the source to imposeadeadline on
the reporter, after which the document would automatically appear on WikiLeaks.^Assange has
been experimenting with other ideas, too.Gn the principle that people won'tregard something
as valuable unless they pay for it, he has tried selling documents at auction to news
organizations; in 200^,hc attempted this with seven thousand intemalemails ftom the account
ofaformerspeechwriter for Hugo Chavez.The auction lailed. He is thinking about setting upa
subscription scrvice,where high-paying members would have early access to leaks.

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But experimenting with the site'sprescntation and its technical operations will not answera
deeper question that WikiLeaks must address: What is it about7 The Web site'sstrengths—its
near-total imperviousncss to lawsuits and govemment harassment—make it an instrument for
good in societies where the laws are unjust. But, unlike authoritarian regimes, democratic
goverrm^ents hold secrets largely because citizens agree that they should, in order to protect
legitimate policy.In liberal societies, the site'sstrengths are its weaknesses. Lawsuits, if they
are lair, areaform of deterrence against abuse. Soon enough, Assange must conftont the
paradox ofhis creation: the thing that he seems to detest most—^powcr without accountability—
is encoded in the site'sONA, and will only become more pronounced as WikiLeaks evolves
intoareal institution.
After the press conference inWashington,Imet Assange in NcwVork, in Bryant Park. Hc
had brought his luggage with him, because he was moving between the apartmentsofft^cnds of
ftiends.Wesat near the fountain, and drattkcoffee.That week, Assange was scheduled to fty to
Berkeley,and then to Italy,but back in Iceland the volcano was empting again, and his ftight to
Europe was likely to change. He lookedabitshellshocked."It was surprising to me that we
were seen as such an impartial arbiter of the tmth,which may speak well to what we have
done,"he told me.But he also said,"Tobe completely impartial is to be an idiot.This would
mean that we would have to treat the dust in the street the same as the lives ofpeople who have
beenkilled"
Anttmber of commentators had wondered whether the video'stitle was manipulative."ln
hindsight, should we have called it ^Permission to Engage'rather than ^Collateral Murder'7" he
said."I'mstift not surc."He was annoyed by Gates'scomment on the ftlm: "He says,^Therc is
no before and no after.'Well, at least there is nowamiddle,whichisavast improvement."
Then Assange leaned forward and, inawhisper, began to talk aboutaleak,codenamed Project
G, that he is developing in another secret location. He promised that it would be news, andl
^aw in him the same mixture ofseriou^ne^^ and amusement, devili^hne^^ and intensity that he

had displayed in the Buttkcr."Ifitleelsalittle bit like we're amateurs, it is because we are,"hc
said."Everyone is an amateur in this business."And then, his coffeeftnished,he made his way
out of the park and intoTimes Square, disappearing among the masses of people moving this
way andthat.^
^t^t^scriti^t^o^ to ^et triors of ^^^^^^i^^^^B-'.^si^n^tureri^i^ of politico, ctiltt^r^,atidt
Y^ttmi^tlike^o^t^h^ed

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33896

UNITED STATESOF AMERICA

Manning,BradleyE.
PFC, U S Army,
HHCU.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Supplement to Government Addendum to
Motion toTakeJudicial Notice dated
16November2012
Enclosures
IlJanuary 2013

33897

Appellate Exhibit 467
Enclosure 9
has been entered into the
record as
Appellate Exhibit 339
Enclosure 75

33898

UNITED STATESOF AMERICA
y^

Manning, BradleyE.
PFCU.S.Army,
HHCU.S.ArmyGarrison,
JointBaseMyerHendersonHall
Fort Myer, Virginia 22211

Supplement to Government Addendum to
Motion toTakeJudicial Notice dated
16November2012
Enclosure 10
11 January 2013

U.S. scrambles to contain WjJ^aks damage - Los Angeles Times

tos Anflclcs Slimes
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ARTICLE COUXCTIONS

UiH-k lo O r i y i i a l Artit-K

U.S. scrambles to contain WikiLeaks damage
Clinton and otiier officials .'ihrug off tlie undiplomatic aasessmenls revealed in the diplomatic cables, sciyint) they won't affect long-term
ties, even as they promise to tighten securiiy and punish the culprits.
November 30,2010 By Paul Richter, Los Angeles Times

Reporting from Washington — The massive leak of secret diplomatic cables sent a tremor from Washington through world capitals
Monday, exposing deception and scheming that world leaders take great pains to keep private and complicating some of America's most
sensitive strategic relations.
Release ofthe cables by the WikiLeaks website Sunday shocked a culture built on the expectation that candid discussions should remain
exactly that — amounting, in the words of the Italian foreign minister, to the "Sept. 11 of world diplomacy."
Diplomats and world leaders said the revelations probably would make them less forthcoming in their discussions and their reports back
home, a development that could make it more difficult to manage policy and head off problems. There were indications that the leak could
cause a backlash in countries vital to U.S. interests, such as Pakistan and Yemen.
Obama administration officials had worked for days before the documents were released to limit the damage. Stung by the cables'
unflattering views of foreign leaders and govemments, they scrambled Monday to show that they were property safeguarding their vast
stores of confidential information.
Secretary of State Hillary Rodham Clinton, Atty. Gen. Eric Holder and other officials appeared pubhcly to declare they were moving
aggressively to protect government secrets and punish those who stole them.
WikiLeaks: More reports from around the world on WikiLeaks' release of the U.S. diplomatic cables.
Clinton insisted that the cables did not represent the official U.S. view. "Our official policy is not set through these messages, but here in
Washington," she said.
WikiLeaks has released 272 diplomatic cables from a trove of more than 250,000. The remainder are to be dribbled out in coming weeks to
provide maximum impact, the website says. A number of foreign diplomats acknowledged that the release could affect some of the most
sensitive ongoing global issues and relationships.
The documents quote leaders privately denigrating counterparts they refrain from criticizing in pubhc — or praise as tmsted partners.
The cables quoted Saudi King Abdullah as saying Iraqi Prime Minister Noun Maliki had lied to him and that he would never tmst him.
Iraq's foreign minister, Hoshyar Zebari, said the cables could hurt the long-fmstrated efforts to form a new government. "There is a mere
chance for government formation, and it's poisoned by these reports," he said.
Egyptian President Hosni Mubarak is quoted as saying Iranian officials "are big, fat hars." The cables show the concems many Arab
nations have about Iran's nuclear program, with a number of leaders encouraging the United States to take military action if necessary to
thwart it.
Israeli Prime Minister Benjamin Netanyahu told reporters that the disclosures would make it harder for U.S. diplomats to be honest in
their assessments and would make foreign leaders more cautious.
"It's clear this will happen," Netanyahu told the Assn. of Tel Aviv Joumalists.
A diplomat from an Arab country said that for at least a while, Middle Eastern diplomats "are likely to be much more guarded in what they
say" to U.S. officials. "There will be a tmst issue now in sensitive conversations with Americans."
The diplomat, who spoke on condition of anonymity because of the sensitivity of the subject, said the revelations about the Middle East
contained "no smoking gun " — nothing that differed sharply from what people in the region beUeve.
Nevertheless, "this brings it all out in a very public way," he said, predicting that there could be reaction in some countries as the
disclosures gradually are reported in the Arab news media.
The cables may stir a strong pohtical reaction in Pakistan, where much of the public deeply distmsts the United States.
One cable said the U.S. govemment has tried repeatedly to persuade the Pakistani govemment to give some nuclear material to the U.S.
for safekeeping because officials feared it could fall into the hands of dangerous groups. Many Pakistanis believe the United States has
been plotting to seize Pakistan's nuclear arsenal.

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"Every Pakistani nationalist who has railed against U.S. manipulation of their govemment can now argue they have the smoking gun," said
James Lindsay, a senior National Security Council aide during the Clinton administration who is now with the Council on Foreign
Relations. "There are a lot of things we want the Pakistani government to do, and they may be jeopardized by this data dump." Pakistan's
leading English-language newspaper, the Dawn, carried a lead headhne: "U.S. trying to remove enriched Pak uranium: WikiLeaks."
"rhe cables may also bring a sharp public reaction in Yemen, a country with a weak govemment and a public wary of cooperation with the
United States. Yemen is increasingly becoming a source of concem for U.S. policymakers. Militants there have been the source of two
thwarted terrorist attacks — the effort to bring down a passenger jet as it approached Detroit last Christmas, and bombs placed last month
in packages on two cargo planes bound for the U.S.
One of the cables quotes Yemeni President Abdullah Saleh, in a conversation with U.S. Gen. David H. Petraeus, offering to lie to conceal
U.S. strikes against militants.
"Well continue saying the bombs are ours, not yours," Saleh is quoted as saying at a meeting last January.
"This is obviously going to create some pohtical problems for Saleh," Lindsay said. The great unknown is how stiff those problems will
be."
The cables also offered unflattering descriptions of a range of leaders. They referred to Russian Prime Minister Vladimir Putin as "the
alpha dog," assessed that German Chancellor Angela Merkel was "risk-averse and rarely creative" and that Putin had made Italian Prime
Minister Silvio Berlusconi his "mouthpiece" in Europe. One cable said that Turkish Prime Minister Recep Tayyip Erdogan was surrounded
by a "cabal of incompetent advisors."
Secretary Clinton insisted that "the partnerships that the Obama administration has worked so hard to build will withstand this challenge."
She said one foreign official laughed off the disclosures, saying, "You should hear what we say about you."
paul.richter@latimes.com
Times staff writers Sergei L. Loiko in Moscow, Laura King in Kabul, Afghanistan, Edmund Sanders in Jerusalem, Jeffrey Fleishman in
Cairo, Alex Rodriguez in Islamabad, Pakistan, and Ken Dilanian in Washington contributed to this report.

{Los ^Q^^ICsS SftmCS

Copyright 2013 Los Angeles Times

Index hy Ke>-word | Index by Date | Privacy Policy | Terms of Service

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UNITED STATESOF AMERICA
y^

Manning,BradleyE.
PFC, U.S.Army,
HHCU.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

Supplement to Government Addendum to
Motion to Take Judicial Notice dated
16November2012
Enclosurell
11 January 2013

Canadian spy secrets expose^^WikiLeaks dump - The Globe and M a i j ^ ^






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rHF\ii,oiu: \Nm MAI! •
Canadian spy secrets exposed in WikiLeaks dump
COLIN FREEZE
The Globe and Mail
PublishedMonday, Nov. 29 2010, 5:58 PM EST
Last updatedThursday, Aug. 23 2012, 4:06 PM EDT

Canada's spies are developing an intelligence channel into Iran and are "vigorously harassing"
Hezbollah operatives, but they remain deeply fmstrated about their ability to combat terror,
according to a revealing WikiLeaksdisclosure
[http://cablegate.wikileaks.org/cable/2008/07/08OTTAWA918.html]that is sending Ottawa
into damage-control mode.
A document released Monday as part of an ongoing dump of more than 250,000 U.S.
diplomatic cables provides an extraordinary glimpse into secret operations of the Canadian
Security Intelligence Service.
The cable also reveals how CSIS feels about Canadian attitudes. Former CSIS director Jim Judd
went so far as to complain that judicial mlings and public naivete were paralyzing his spies specifically lamenting that Canadians were prone to "knee-jerk anti-Americanism" and
"paroxysms of moral outrage."
Guarded in public and blunt in private, Mr. Judd is said to have been scathing in his frank
assessments. "Director Judd ascribed an 'Alice in Wonderland' worldview to Canadians and
their courts, whose judges have tied CSIS 'in knots,'" the cable said.
The report was written in the summer of 2008, as Mr. Judd sat down with Eliot Cohen, a U.S.
State Department official. The Bush administration appointee's entourage took notes.
Fuelling the frank discussion was the fact that a Federal Court judge hadjust ordered the release
of once-secret videos showing CSIS agents interrogating a crying teenaged terrorism suspect Omar Khadr, the Canadian citizen still held in the Guantanamo Bay prison camp.
At the time, a series of Canadian judges were probing CSIS complicity in American actions that
may have led to the torture of terrorism suspects - and a growing legion of CSIS lawyers were

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going to the wall to protect U.S. secrets. The irony is that the spy service has now been
blindsided by the release of U.S. documents.
Intelligence insiders on both sides of the border tend to see the document dump as an act by a
rogue soldier who they say stole the information and passed it along to WikiLeaks.
A CSIS spokeswoman refused to comment on the leaks Monday, but knowledgeable observers
say damage assessment must be conducted and quickly. CSIS must now look hard at assessing
whether terrorist groups have learned too much about its spy craft.
Overall, the spy service seems to feel it is gathering cmcial intelligence in Canada and around
the world - even if some information is still coming in murky.
For example, in 2008, the agency was hearing chatter in Afghanistan about a looming suicidebomber-led jailbreak that ended up freeing dozens of Taliban captives in from the Sarpoza
prison in Kandahar. Mr. Judd "commented that CSIS had seen Sarpoza coming, and its link to
the Quetta [TalibanjShura in Pakistan, but could not get a handle on the timing," according to
the cable.
His assessment of the Afghanistan mission was more gloomy than the official govemment line "due in part to [PresidentJKarzai's weak leadership, widespread cormption, the lack of will to
press ahead on counter-narcotics [and]limited Afghan security force capability."
The cable reveals that CSIS was engaged in a tricky dialogue with Iranian intelligence about
Afghanistan and other matters. Mr. Judd seemed happy enough to have a line in to Tehran,
even if he feared it was playing a double game. "We have not figured out what they are up to," he
said, according to the cable.
Iran's proxy militia - Lebanon-based Hezbollah - was said to be present in Canada and Mr. Judd
is said to have remarked CSIS is "vigorously harassing" knovra Hezbollah members.
Mr. Judd apparently played down concerns about "homegrown" al-Qaeda terrorism characterizing it as "the recmitment of a small number of Canadian 'wannabes' of Pakistani
origin for mostiy overseas operations."
These and other leaks have produced widespread fears of embarrassment, but in Ottawa,
Foreign Affairs Minister Lawrence Cannon insisted they won't harm Canada's relations. "The
nature of the documents, as I understand it, the content, is not something to create worry," he
said. "Relations between the United States and Canada obviously remain very strong."
More documents are coming - according to some indexing material already released, there are
2,276 cables that originated in Canada, and several hundred others that refer to Canada.

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The range ofthe massive document dump extended to Canadian business interests as well. In
October of 2008, a newly appointed U.S. ambassador to Kyrgyzstan wrote a 2,000-word cable
to Washington detailing a bizarre two-hour brunch she'd had vrith the Duke of York - Prince
Andrew - and group ofbusiness leaders that included representatives from a Canadian mining
company.
The group discussed a Kyrgyz business climate choked with "cormption," a place where
"nothing gets done" ifthe President's son "does not get his cut," according to the cable written
by Tatiana Gfoeller.
While the cable did not name the Canadian company specifically, it did note that Canadian
representatives at the meeting mn "Kumtor mine."
Kumtor Gold mine lies near the Kyrgyz border with China and is operated by Toronto-based
Centerra Gold. The company could not be reached at press time.

The Canadians apparently began the meeting vrith a long explanation of the "travails of trying to
negotiate a revised mining concession that provides a greater stake in Kumtor's parent company
to the Kyrgyz government in exchange for a simplified tax regime and an expanded concession."
Ms. Gfoeller went on to detail some of the business leaders' complaints. She wrote: "One
businessman said that doing business here is 'like doing business in the Yukon' in the
nineteenth century, i.e. only those willing to participate in local cormpt practices are able to
make any money."
The Prince seemed amused by the grievances, saying "All of ftiis sounds exactly like France."
With a report from Patrick White and Campbell Clark in Ottawa

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UNITED STATESOF AMERICA
y^

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

Supplement to Government Addendum to
Motion toTake Judicial Notice dated
16November2012
Enclosure 12
11 January 2013

WikiLeaks Archive — Cabl|^ncloak U.S. Diplomacy - NYTimes.coq^k

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ilUHb
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RREN

November 28. 2010

Leaked Cables Offer Raw Look at U.S.
Diplomacy
By SCOTT SHANE and ANDREW W. LEHREN

WASHINGTON — A cache of a quarter-million conftdential American diplomatic cables,
most of them from the past three years, provides an unprecedented look at back-room
bargaining by embassies around the world, bmtally candid views of foreign leaders and
frank assessments of nuclear and terrorist threats.
Some of the cables, made available to The New York Times and several other news
organizations, were written as recently as late Febmary, revealing the Obama
administration's exchanges over crises and conflicts. The material was originally obtained by
WikiLeaks, an organization devoted to revealing secret documents. WikiLeaks posted 220
cables, some redacted to protect diplomatic sources, in the first installment of the archive on
its Web site on Sunday.
The disclosure of the cables is sending shudders through the diplomatic establishment, and
could strain relations wdth some countries, influencing international affairs in ways that are
impossible to predict.
Secretary of State Hillary Rodham Clinton and American ambassadors around the world
have been contacting foreign officials in recent days to alert them to the expected
disclosures. A statement from the White House on Sunday said: "We condemn in the
strongest terms the unauthorized disclosure of classified documents and sensitive national
security information."
The White House said the release of what it called "stolen cables" to several publications was
a "reckless and dangerous action" and warned that some cables, if released in full, could
disrupt American operations abroad and put the work and even lives of conftdential sources
of American diplomats at risk. The statement noted that reports often include "candid and
often incomplete information" whose disclosure could "deeply impact not only U.S. foreign
policy interests, but those of our allies and friends around the world."

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The cables,ahuge sampling ofthe dailytrafftc between the State Department and some 2^0
embassies and consulates, amount toasecret chronicle ofthe United States'relations with
the world in an age ofwar and terrorism. Among their revelations, to be detailed in The
Times in coming days:
^Adangerousstandoffwith Pakistan over nuclearfuel: Since 200'7,the United States has
mountedahighly secret eftort, so far unsuccessful, to remove fromaPakistani research
reactor highly enriched uranium thatAmerican officials fear could be diverted for use in an
illicit nuclear device. In May 200^, Ambassador AnneW.Pafterson reported that Pakistan
was refusing to scheduleavisit by American technical experts because, asaPakistani official
said,"ifthe local media got word ofthe fuel removal,^theycertainlywouldportrayit as the
United States taking Pakistan'snuclearweapons,'he argued."
^Thinking about an eventual collapse ofNorthK^orea: American and South Korean officials
have discussed the prospects foraunified Korea, should the North'seconomic troubles and
political transition lead the state to implode. The South Koreans even considered
commercial inducements to China, according to the American ambassadorto Seoul. She told
Washington in Pebruarythat South Korean officials believe that the right business deals
would "help salve"China's"concerns about living withareunifiedKorea"that is ina"benign
alliance" with the United States.
^Bargaining to emptythe Guantanamo Bay prison: When American diplomats pressed
other countries to resettle detainees, they became reluctant players inaState Department
version of"Let^sMakeaDeal."Slovenia was told to takeaprisoner if it wanted to meet with
President Obama, while the island nation ofKiribati was offered incentives worth millions of
dollars to take in ChineseMuslim detainees, cables from diplomats recounted. The
Americans, meanwhile, suggested that accepting more prisoners would be "alowcost way
for Belgium to attain prominence in Purope."
^Suspicions of corruption in the Afghan government: When one of Afghanistan^stwo vice
presidents visited the UnitedArab Emirates last year,local authorities working with the
Drug ^nforcementAdministration discovered that he was carrying ^^2 million in cash.With
wry understatement,acable from the American Embassy in Kabul called the money"a
significant amount" that the official, Ahmed ^iaMassoud,"was ultimately allowed to keep
without revealing the moneysorigin or destination."^Mr.Massoud denies taking anymoney
out ofAfghanistan.^
^Aglobal computer hacking eftort: China'sPolitburo directed the intrusion into Google's
computer systems in that country,aChinese contact told the American Embassyin Beijing

http://www.nytimes.com/2010/ll/29/world/29cables.html7 r=l&pagewanted=print

1/10/2013

WikiLeaks Archive — Cabl^J^cloak U.S. Diplomacy - NYTimes.con^^

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in January,one cable reported. The Google hacking was part ofacoordinated campaign of
computer sabotage carried out by government operatives, private security experts and
Intemet outlaws recruited bythe Chinese govemmenL They have broken into American
government computers and those ofWestern allies, the Dalai Lama andAmerican
businesses since 2002, cables said.
^Mixed records against terrorism: Saudi donors remain the chieffinanciers of Sunni
militant groups likeAl Qaeda, and the tiny Persian Gulf state of O^tar,ageneroushostto the
American militaryforyears, was the "worst in the region"in counterterrorism eftorts,
accordingtoaStateDepartmentcablelast December. Qatar'ssecurity service was "hesitant
to act against known terrorists out of concern for appearingto be aligned with theU.S. and
provoking reprisals,"the cable said.
^An intriguing alliance: American diplomats in Rome reported in 2009 on whattheir Italian
contacts described as an extraordinarily close relationship between VladimirV.Putin, the
Russian prime minister,and Silvio Berlusconi, the Italian prime minister and business
magnate, including "lavish gifts,"lucrative energy contracts anda"shadowy" Russian
speaking Italian gobetween.Theywrote that Mr.Berlusconi"appearsincreasinglyto be the
mouthpiece ofPutin"inPurope.The diplomats also noted that while Mr.Putin enjoyed
supremacy over all otherpublicftgures in Russia, he was undermined by an unmanageable
bureaucracythat often ignored h