Title: Volume FOIA 105

Release Date: 2014-03-20

Text: 33994

Volume 105 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

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with over 80 percent of their resources focused on that level
USAID coordinates closelywith multilateral(eg World Bank and the Asian Development Bank) and other bilateral donors in each country off^^
of USAID programs In Indonesia, for example, the Australian bilateral aid agency, AusAlD. used USAID pilot education program as the basis for Its new basic
education project, using USAID's methodology for supporting local government management of education and forpromoting active learning in classrooms
Collaboration with AusAlD as well as other donors such as UNICEF continues during implementation in the form of jointly-prepared training met^^^^
in communities to avoid duplication as well as combined epproeches in worthing with local and netionelofficials This coordinated approach hes extended don^^
program coverage in Indonesie in the education sector.
In Tajikistan,USAID-developed training modules on interactive learning and teaching methods and teacher trainers support the Government ofTajikistan's
implementation ofthe "Education for All"FastTracklnitiativeleveragingfunds of approximately $16millionThe USAID basic educati^^
World Bank and Asia Development Bank (ADB) projects in the area of educetion finance, curriculum revision, teachertraining, and strengthening capacity of
teachertraining institutes In Kyrgyzstan,USAlD-supportedindependenttesting organization wonaWorid Bank tenderto implement student assessments,USAIDdeveloped teacher standards ere used in revision ofthe teacher incentive system: and the basic education project collaborates with the ADB project by providing
training for textbook authors

Leveraging Contributions from the Private Sectorand Civil Society Organizations.TheUS Govemment uses itsofficial development assistance to leverage
other resources for education by developing alliances or partnerships with the privete sector and non-govemmental organizations (NGOs). including ^^^^
organizations USAID's Global Development Alliances(GDAs).also known as public-private partnerships,are tailored to country-specific
sector partners'interestsBetween the years 2000 2006 USAID received on everegeagreaterthanathreeto-one match for education alliances in the As^^
East region Below ere several exemples of ongoing and new country-specific partnerships in the region:
In Western and Central Mindanao, as well as the Autonomous Region of Muslim Mindanao in the Philippines, there are currency six GDA partnerships to increase
educational opportunities for children by ensunng access to quality education: to improve the capacity of teachers, and raise meth. science and English sk^
among elementary school beneficiaries; to increase employment opportunities and engage young leaders; and, to provide business and skills training for out-^^^
school youth; and, to provide opportunity for school dropouts and out of school youths to rejoin fonnal schooling through an accreditation and equivale^
mechanism With approximately $12 million in USAID funding,an additional $42 7 million was leveraged (more thanaone-to-three leverage) from private
businesses, local NGOs, foundations endnationalgovernmentagencies
In Indonesia,public pnvate partnerships are t^ing used to expand the reach of USAID activities and to respond in natural disaster situafionsApartnership with
is helping improve education quality in Papua, one of the most under-served and isolated areas of Indonesia An alliance with ConocoPhillips is helping
educetiori services in communities affected by the Mey 2006 earthquake that struckYogyakerte end CentrelJeve
In Morocco and Jordan,aUSAlD information technology partnership with CISCO,UNIFEM,and the Governments of Morocco and Jordan has introducedClSCO
Certified Networi^ Associate and job-readiness training to eleven Moroccan institutions (900 students, 49 percentwomen) end to over600students(all women) in
Jordan.In both countnes, there isafocus on ^ob skills and placement forwomen In Morocco.900 students,more than 50 percent of whom are women,have
benefited(or are still benefiting) from theClSCO Certificate programs combined with job-preparedness treining Fifty percent of the first student cohort w
completed the program found jobs within SIX months after graduation
USAID's Office of Middle East Affairs recently finalizedanewGDA that will engage and support emerging youth leaders in five Middle Eastern countries Egypt,
Jordan,l^ebanon,West Bank Gaza andYemen PartneringwiththeFordFoundation,Seve the Children International will createayouth development toolkit and
link emerging young leaders toanetwori^ of youth development workers and institutions that assist young people build leadership capacity and exercise
moderate leedership behaviors withinacommunity development context
In cooperation with the Middle Eest Partnership Initiative (MEPl),Scholastic lnc,is providing millions of Arabic^language classroom library
schools in the Middle East end North AfriceScholestic'ssubstentivecontnbutiori allows MEPl to leverege its $12 million investment in this critica^^
independent reading skills development program In another example, MEPi s partnership with the CISCO Learning institt^te i^ developing on^^^^
cumcular materials to complement the efforts of the pnvate sectorbased World Economic Forum (WEF)-sponsored Jordan Education initiative
USG Coordination to Reduce Duplication and Waste. The Department of State and USAID wori^ closely together implementing their Foreign Assistence
Framewori^,which includes education Through this framework andajoint Operational Plan process,State,and USAID coordinate to reduce duplication of effort
end/or waste
USAID collaborates acfively with the Department of State/Middle East Partnership Initiative (MEPl) to promote education in Muslim countrie
region,withafocus on civic education The MEPl education pillar supports education systems that enable all people.especially giris,to acquire the knowledge and
skills necessary to compete in today's economy, participate actively and effectively in the civic arena, and improve the quality of their lives and that of theirfa
MEPl end USAID coordinate to minimize enypotentielduplicetion of efforts end investments Amodest number of MEPl-funded education progrems.notebly the
supportfortheArabCivitasnetwork,areimplementedinconjunctionwithUSAlD

Other examples of collaboration include support forewomen's literacy in

Morocco: development of e-learning modules for civics in Jordan; and. in Yemen, pendingfiendsavailability, the design and implementation of an Intemet
communication and collaborative learning network for 20 high schools (This program will end March 31.2007; there is no additional funding f o r ^
providing funding for en Arabic version of the Global Learning Portal,aproject under the auspices of the Broader Middle East and North Africa (BMENA) initiative;
the Portal will provide new means for professional collaboration and benefit educators and idea leaders across the Arab worid
Training and Exchange Programs. Bridging both basic and higher education.USAID.State Department Bureau of Education and Cultural Affairs (ECA)and MEPl
coordinate in the erea of providing training and exchanges for students from Muslim-majontycounfries to the United States Inedditiontotheeducetionelvelueof
these kinds of interventions, participants are exposed to American values, culture, and democraficinstitufions Many of these programs directly benefit

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education In Egypt,lOO scholarships will be awarded toenhance the Ministry's technical college instn^ctor capacity through'Trainth^
programs, ofwhich 25 will be financed by the cun^ent EGA community college scholarship program In Pakistansecondary school educators will attendafi
program in the United States, focusing on mathematics, science, and classroom technology
Foryoungerstudentsthere are some programs such as State Department's English MicroschoiarshipAccessProgramwhich provides English classes for
desenBing high school students from non-elite sectors in countries with significant Muslim populationsTheprogramfunded by M E P l ^
Afnca region, delivers language instn^ctioninacivic education contextand helps students compete forfuture job and educetionalopportunitieslt^^^^
them to be conslderedforaUSexchangeprogremDuringFY-2006,USembessies selected schools in45countriestoenroll approximately 10,000 studentsin
theprogrem In addition to teaching English.the program provides an Americen classroom oxpenenceusingUS materials and emphasizes active leaming
The State Departments Youth E^changeand Study Program ^YES) end Future Leaders Exchange Program ^FLE^^ bring high school students from Muslim
countries to live with American hostfamilies and attend American public high schools for an ecademicyearThePl^E^ students also receive special ^^^^
civics andwort^ as volunteersSimileriy.MEPl's Student Leaders/Study ofthe United States institutes provide young people with intensive traini^^
engagement end leedership skills in bothUS end regionelly-besed settings
The State Depertment's^^Leaders in Education Program^^ is specifically designed to bnng K-12educators and administrators from all regions ofthe world,
including Muslim countries,to the United States to visit schools,meet with teachers,administrators.and representatives of ParentTeacher Associations en
community organizations The Teaching Excellence and Achievemer^ Program (TEA) provides secondary school teachers from Eurasia, South Asia and
Southeast Asia with unique opportunities to enhance their teaching skills and increase their knowledge about the United States The participants particle
professional teacher development program in the United StatesThe six-week program also includesathree-week internship atasecondary school where
participants actively engage with American teechers and students Also, the TEA program provides follow-on grants to the international teachers to purchase
essential materiels for their schools, to offerfollow-on training for other teachers, and to conduct other activities that will build on the exchange visit
USAlD"s Training Future i^eaders initiative highlights the importence OfUS trained scholars end their unique role in developing ^^^^
home USAID is carrying out an analytical study on pnor USG investmentsThis research will inform future program design and providea'best practices"
fremewort^forlong-tenntreiningprogramsCun^ently,fieldresearchisbeingdoneinYemen

EgypL Nepal.and Indonesia This program complements ongoing

effortscamedoutbyState/ECA and MEPl
Funds deeded to Achieve Universal Basic Education
UNESCO estimates thet $5.6 billion are needed per yearto achieve'"Education for All" by 2015 Globally UNESCO estimated that 103 million children were
s^oolin2002/2003 For the countnes in the Muslim world, this figure is estimated to be around 45 million Estimating that it costs roughly $50 peryear per chi^^
complete basic education (6 years of schooling),it would cost $22billion per year in Muslim countries asawhole to achieve universal basic educations
Efforts to Encourage Deveiopmer^ and implementation ofaNationai Education Plan
In countries with predominantly Muslim populations, the effectiveness of basic education systems is at the crux of their development fixture and potenti^^
moderatetheinfiuenceoflowgrowth,joblessness lagging social services and despair The United States encourages countries to develop and implem^^^
education plans by offenng assistance to support education refonn developments and program funding once reforms heve moved into the implementation phase
The United States has infiuencedna^onel education plans and reform by way of pilot programs that model best practices in education These positive expenences
galvanize support for broader change and can impact the education system beyond the pilots programs'localities Model programs also potentially have an impact
outside of targeted interventions In Indonesia, USAID helped the provinciel government of Aceh with its new long-term education strategy, developed efter decades
of conflict and the 2004 tsunamfThis strategic plan was recently endorsed by the Govemment of Indonesia's Ministry of National Education
In December 2006,the USAID basic education project in Central Asieorgenizedaregional conference on school govemance which gathered over60
representativesfromministriesofeducetionandfinance. local authorities.schools,and national end internetional organizations from Kyrgyzstan.Ta
Turkmenistan, and Uzbekistan The participants reviewed policy gi^idelir^^5oocori^ri^unity participation in eoi^c^ti
projecL discussed relevant national and international legal frameworks and recomn^ended changes which will help the decision makers in the region to increase
community involvement in school activities and provide input to education reform
Closing the Digital Divide and Expanding VocatlonalBBusiness Skills
To 'close the digital divide" and expand vocational/business skills, USAID, State, and other agencies implement public private partnerships,1^^^
in the classroom, school-to-wori^ and wori^orce training programs, improved quality of basic and secondary education programs, scholarships and exchanges A
few programs are highlighted below
-USAID/ANE Bureeu Education and Employment Alliance promotes private sector participation in Egypt, Morocco,Pakistan,India,Indonesia,and the
Philippines to enhance skills end improve education and employment opportunities among overlmillion underserved youth In eddition to local partners (profit and
non-profit), corporate partners include Chevron/Unocal, GE, Ink Media. Lucent. Microsoff. Nike and Ore^e
The State Department's Global Connections and Exchange Program seeks to promote mutual understanding and civic education in countries with significant
Muslim populations by bringing together more thani,000 schools from 16countries for online colleboretive projects that focus on professional devel^^
literacy,andciviceducetion Teachers also develop skills needed to participate in collaborative activities withUS schools, and teachers a
opportunities to travel to their partner schools asaway to strengthen mutual understanding end solidify virtual relationships through face-to-face meetings
- T h e USAID intemet Access Training Program (lATP), administered by the Internetionel Research and Exchanges Board (lRE^)since1995, provides free

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intemet access and training inllcountries throughout Central Asia,the Caucasus, and Westem Eurasia From major cities to small communities, lATP encourages
infom-iation sharing,netvi^rk building.and collaboration amongUS Govemment exchange alumni and other targeted audiences lATP staff train alumni an^
targeted audiences in the effective use of the Internet and sponsor the development of local language web sites The centers also conduct training in basic civics,
entrepreneurship, and English
USAID and the Intel Corporation signed Memorandum of Understanding in December2006 to broaden access and usageofinformetion end communications
technologies (ICT) in developing communities around the world This alliance envisions collaboration and partnership in the following areas: enabli^^
intemet connectivity and locally relevant applications; supporting ICT usage and deployment by small and medium-sized enterpnses to enhance economi
development opportunities; and increesing the use of iCTsto support education end heelth. Intel prior experience in the educetiori sector includ^^
development and teacher training programsforK12
Countries Eligible for Assistance. USAID has education programs in Muslim majority countries end countries with large Muslim populations, which potential^^
overiap those which might be tergeted by the President under an IntemationelYouth Opportunity Fund ^section 7114(b)j Below isalist,though not exhaustive.o
programs in the Asia Near East, Africa, Europe, and Eurasia regions
The Asia l^ear East region contains several Muslim-majonty countries with significant education needs Basic education program highlights include:
In Afghanistan, because many children end youth lost years of formal schooling, students need to catch up to their appropriate grade level USAID created an
accelerated learning program compressing two years of study intoasingle year through innovative teaching techniquesThis program has frained around 10,500
teachersendenrolledneariy 170,000 students More than half the students are girls Inaddition USAID has pnnted and distributed nationwide 48 5million
textbooks for grades 1-12 Since 2002, USAID in conjunction with the Ministry of Education has built or refurbished 622 schools, mostly in remote areas
In Bangladesh, Seseme Street Bengledesh. known locally as Sisimpur. IS USAID's most recognized activity in the country The program begeneiring in April 2
and is the first show of its kind in Bangladesh The half-hour television programs provide access to literacy, numeracy, and critical thinking skills for almost ^^^^
the estimated nine million three to six year olds in Bangladesh This prepares ^ e m for leaming success and helps to combat traditionally low achievement and high
drop out rates in the lower pnmary grades Secondly,USAID supports the Eariy Leaming for School Success Program (SUCCEED) operation ofl,800 preschools
which prepare preschool-aged children for school by improving reading and mat skills and expanding access to primary schools Afurther aim of the program IS to
increase children's confidence and to reduce high dropout rates by ennching eariy learning opportunities prior to formal education The program has established
1.800 preschools across the country (600 are based in schools andl,200 are based in homes) and trained overl,800 preschool teachers in new interactive
methodologies.
USAID/Egypt supports the Government of Egypt in sustaining improvements in leaming outcomes in grades K-12 The program focuses on improving teaching and
learning, increasing equitable access to education, and strengthening management and govemance in seven governorates Activities include in-service t e a ^ ^
training,school libranes,infonnation technology,and some school construction in remote and densely populated areas Todate,USAID has also provided5milli^^
bookstoover5.000Egyptianprimaryschools Over 39.000 students now heveeccess to computer technology USAID has built 70 new girts schools serving
almost 40.000 students USAID supported the development of the Egyptian Sesame Sfreet which helps over 85 percent of all children under age eight acquis
early literacy end numerecy skills
USAID worths in Indonesia, the worid's largest Muslim country The USAID program thereworks with overlOOdistncts (25 percent of the nation),providing training
and technical assistance to school officials, communities and local governments on education management and finance This Presidential initial
service teacher training, mentonng, and teacher resource centers to improve the quality of classroom instruction Over 245.000 junior secondary students and out
of school youth are learning employment-related life skills while working toward school completion or its equivalency USAID IS supporting the
Indonesian Seser^Sfree^ which will debut in 2007 Through direct assistance and dissemination of best practices, educafionprogrems ere expe^^
9,000 public and private schools25million students,90.000 educators and one million out-ofschool youth by 2010
In ^uly 2003,the Government of Jordan launchedefive-yeer,$380 million program,developed with USAID assistance.Education Refonn forthe Knowledge
Economy (ERfKE) initiative This initiative IS one of the most ambitious education reform programs in the Ar^bi^egion to date it^go^ii^ to r^ o^
restructure education programs and practices, improve physical learning environments, and promote lean^ing readiness through improved and more acoessi^^
early childhood education USAID, in coordination with Jordan and eight other donor nations and multi lateral organizations, will provid
strategy period to support refonn efforts through ERfKE USAID's efforts under this initiative(1)assist the Government of Jordan's earty child care inifiative,creatin
100 public kindergartens, field testcumculum and develop an accreditation system; (2) develop school-to-wori^ programs and an IT cunlculum stream for hig
school students: (3) connect 100 Discovery'schools to broadband and testeleaming modules for all subject; (4) expand youth and life skills programs to
secondary schools in new underserved areas in Jordan; and,(5)construct up to 28 new schools and rehabilitate anothenOO schools to create the appropriate
learning environment that supports the reform efforts and accommodates the recent infiux of refugees from the region
InPakistan.USAID supports the Govemment of Pakistan's education reform strategy by: (l)strengthening education policy and planning; (2) improving the skil^^
and peri^ormance of teachers and administrators; (3) increasing youth end edult literacy; (4)expandingpublic-privete partnerships; end (5) providing school
improvement grants and involving parents and communities in public schools Over9,000 parent-teacher associations received school improvement grants help^^
communities to build over 3,000 new classrooms,reconstmctoverl,000 more classrooms,build overl,200 toilets.and repair anotherl,000 In addition.in the
Federally AdministeredTribel Areas,USAID is constn^cting end furnishing 65 primary,middle,and high schools USAID is building or restoring water end sen!
facilities at190giris" schools Scholerships have been awarded to 57 women from this aree to ettendaone-year,preserviceteecher education program
In the Philippines (Mindanao^. USAID education programs aim at improving education quality and access, and providing livelihood skills training for out^^^
youth USAID and theUS Peace Corps jointly help improve instruction in English.science, end meth by training over 21.000 elementary and secondary school
teachers,as Welles mobilizing over 300 Perent-Teacher Community AssociationsComputer and intemet education has also been introduced

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The Asia Near East regionelso contains countries with significant Muslim populations though not in the majority, such as India (second largest Muslim popula^^
the worid)
USAID/india's pilot program introduces the fonnal curriculum in eleven Islamic religious schools (madrassas), complementing the Indian Go
modernize madrasseeducationThe program reechesover2,500 out-of-school youth end wori^ing children.perticuleriy adolescent girts Astetegovemm
decided to scale-up this model with Its own resources, benefiting over90,000childrenin 1,200 madrassas by September2008
The sub-Saharan Africa region containsanumber of important Muslim and Muslim majority countries, in which support to basic education activities and improved
learning opportunities for in-school end out-of-school youth figure prominently While USAID has been working with predominately Muslim countnes and
communities in the education sectorinAfrice from the 1960s, since the events of 9/11.the Bureau for Africe"s Office of Sustainable Development (AFR/SD)hes re
evelueted the role of education end takenamorestrategicepproech to address the concems ofepost-9/11society USAID partners with Muslim communities to
ensure that children in these communities are receiving the best and broadest education possible end that USAID IS working collaboratively to c ^
socio-economic environment thatwill ultimately leed to greeter global peace, security and understending
In support of President Bush's $100 million EastAfricaCounterTerrorism initiative ^EACTi^,AFR/SD initiated programs in EastAfrica in 2003 that provide bas^^
education opportunities in marginalized Muslim communities The targeted countries in^ude Kenya. Ugende.Tenzenie. and Ethiopie Eritrea had been part of the
originallist,but elimineted during the USAlD/EritreacloseoutAsummary of these programs include:
^ USAID/Ethiopia implements various activities in Muslim^ominated areas particulariy in Somali.Afer.andOromia regions The activities inc^^^
pre-service and in-service teacher training to improve the quality of pnmary education; provision of capacity building training for ParentTeacher Associat^^^
(PTAs) and community members to increase parent and community involvement in school management: building the capacity of education officers to improve
the planning and management of the education system; and establishment and expansion of altemative basic education centers to provide non formal pnmary
education to children, especially girls, and adult literacy classes for illiterate Muslim men and women
^ USAiD/i^enya"s basic education program. Education for Marginalized Children in Kenya (EMACK), is concentreted in the North Eastem and Coast Provinces
Both Provinces have predominantly Muslim populations and the lowest education statistics in the country This educetion portfolio began in 2004 with
supplementalfi^nding specificallytargetedatMuslim communities At the end of two yeers the project heshadetremendous impact on enrollment and
retention OverlOO,000 children have been reached in the Coast Province Approximetely 250 Eeriy Childhood Development Centers heve been supported;
over2,000teachersweretrained in child-centered teaching methods Todate. the School Infrastructure Program has successfully built 107 classroom, three
dining halls, eight dormitones, and supplied 2.000 desks along with 300 bunk beds with mattresses
^ USAID/Tanzania^s program focuses on strengthening primary performance in general and secondary math and sciences over the next five years USAID will
focus basic education activities for under-served children(especially girls in Muslim and pastoral areas) The United States'basic education initiative will
provide training and materials to teachers and students allowing thousands ofTanzanian students to receive textbooks wntten in Kiswehili and allowing girts
to receive scholarships United States resources will enable two programs to lay the groundwork over the next five years to increase the number of girts
receiving preschool, primary, and secondary education; improve primary and secondary skills in math and science; end provide specialized training for
teachers in math, science, English, and the needs of children with disabilities
USAID works with Muslim and pastoralist populations in geographic areas where there IS little or no donor support USAID/Tanzania will continue enhan^^
delivery in ^anzibar,while adding two pilot districts (l^indiUri:^an and Mtware Urban) on the southem Tanzanian mainland Over 36,000 secondary,64
and7,000pre-primaryschoolstudentswillbenefitfromUS support targeting education delivery systems at local.distnct,and regional levels In addifi
innovetive radio instroction activity will focus on pre-primary and primary level education The radio instruction activity will esta
well es pilot redio instruchon in 40 primary-school classrooms in Zanzibar In addition, isolated communities in pestorelistereas will estab^^^^
Leaming Centers providing equitebleeccess to educetion for 14,000 children by FY-2008 Children will benefit from quality basic educetion in Kiswahili,
math, social studies, science, and life skills
^ USAID/Uganda supports Madrassa Early Childhood Development (ECD), which targets poor communities and builds on existing informal eeriy child
education at selected community mosques Through the Madrassa Resource Centre communities are supported to establish and manage their own preschools by using intense community perticipetion in pre-primary education The educafion activities followeunique structure that was exclusi
Madrassa for use in the Ugandan contexLThe project seeks to provide access to high quality,culturally relevant and affordable eariy childhood educatiori arid
development in order to increase the chances of children from underprivileged commurilfies to eccess and succeed in later formal education Todetethe
project hesechieved the following: 15community schools have been mobilized and are participating in the program; l3community schools are being
supported under post greduetion continuous support to ensure the long-tem-^ sustainability of the pre-schools,1,207 children are currently enrolled in the new
schools and other schools supported by the ECD activity; 282 Schools Management Committee members received training on how to manage their schools:
120 ECD teachers have been trained in ECD methodologies; andl,810parents have been mobilized to send their children to the community schools
In support of the Trans-Sahara Counter-Terrorism Partnership ^TSCTP^
^ USAID/Mali^s basic education program focuses on supporting moderate Islamic schools (madrassas) and improving the quality of primary education for Melius
predominantly Muslim population The program reinforces the Ministry of Education's management capacity; provides school based and radio-based teacher
training; develops interactive radio instruction for students; promotes adult literacy, and mobilizes communities to better manage end advocate for their lo^^
primary schools In the three northem regions of the country. USAID provides scholarships for over 6,000 disadvantaged giris each year
^ USAID/Senegai^s program aims et improving basic education in Koranic schoolscurrently benefits approximately4,800 vulnerable chil^^^
studying in these schools The pilot activity, funded with TSCTP ESF funds, wesleunched in late 2005 It supports improvements in the living, health, nutrition,
and learning conditions of children in Koranic schools It eccomplishes this through the provision of hot meels; basic leaming materials such es pens, books,
and notebooks; and first aid kits The program also provides training to teachers in how to effectively teech languages, math, life skills, and heelth edu^^^
Vocetionel treining is also offered in the areas of carpentry, sewing, masonry, and tannery Over the past few months, the leaders of these schools have
become increasingly receptive to incorporating secular education in their curnculum and in promoting better nutntion end hygiene among their students
^ AFRD/SD's efforts through the President's Africa Education Initiative (AEI) In l^iger,Chad^ and Mauritania complement the TSCTP's efforts to counter
extremismandterronsm In these countries USAID has used the AEI's Ambassador Girls ScholarshipProgrem to improve access to quality education for

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giris and to engage parents and communities in the north of Mali and throughout Niger. Chad, and Mauritania
While not part of EACTl or TSCTP, other countries have benefited from USAID's Bureau for Afiica's efforts to reach out to Muslim populations, including Somalia,
Sudan, and Djibouti in the Horn of Africa and Nigena in the West.


USAID/East Africa has been supporting education programs in Somalia since 1994, The current education program uses radio to deliver high-quelity,
interactive in struct! on el programs to marginalized children. The radio programs are currently being broadcast throughout Somelia. including in Mogedishu, The
instructionel redio program will target out-of-school youth and Koranic schools in Muslim communities.



USAID/Sudan efforts are focused on the Three Areas and southern Sudan and engaging in national development. USAID continues to implement programs
to enhance inter-religious peace-building through improving education eccess Fonnal and non-formal programs focus on pnmery end giris' education, teacher
training and institutional development - targeting out-of-school youth, women giris. returnees, and other vulnerable groups The U S Govemment is expediting
the provision of primary education and adult literacy through radio-based instruction to provide a quality standard of learning both for students and teachers.
Conflict resolution, recovery, and prevention are integrated to support the peace process.



USAtD/DJit>outi. Since 2003, USAID has supported Djibouti's education refomi program, to (a) increase access through school rehabilitafion,
renovating/building water and sanitation facilities, and the provision of textbooks, equipment and kits; (b) improve quality through teecher treining,
development of teechers' and school pnncipals' guides, provision of English Language teaching and teacher training for secondary and university levels, and
construction end equipment of pedagogic resources centers, es well as improving supervision: and (c) improve community participation and increase giris'
education through the provision of scholarships to 1,000 girls and non-formal education programs for out-of-school youth especially giris USAID collaborates
with the U S Embassy and the Combined Joint Task Force/ Horn of Afnca



USAID/Nigeria began support to the educetion sector in 1999 Thefirstthree-year program focused on increasing teachers' instructional skills in English
literacy end numeracy; used interactive radio instruction; increased community/PTA involvement in schools" management: increased child-focused classroom
instmctional methods; and increased local and state govemment skills in school-based data collection and use (this espect evolved into the current GON
National EMIS model) Some 25 percent of participating schools were Islamiyyah, the balance were public The cun-ent program integrates health and
education activities, focusing on increasing teachers' instnjctional skills in English literacy and numeracy; uses interactive radio instruction: increases
community/PTA involvement in schools' management; and deals with school health and nutntion issues.

In Europe and Eurasia the dissolution of the Soviet Union, followed by creation of new independent countries in place of the former Soviet republics, and the
drastic deterioration of the economic situation dunng the 1990s, forced many of the new govemments to drastically reduce the country's share of the Gross
Domestic Product (GDP) allocated for the education sector. The economic downturn and the challenges of restructunng the economy and the education sector
have been particularly severe in Tajikistan, which suffered from a five-year civil war (1992-97),
In 2003, to support the efforts of the Central Asian countries to reform the education sectors, USAID has implemented a regional education project in Tejikisten,
Kyrgyzsten, Uzbekisten, and Turkmenistan. Although regional in implementation, the project allows for and takes into account the specific needs of eech country
and aims to utilize windows of opportunity as they arise The Basic Education Strengthening Program (PEAKS) focuses on five major aspects of the education
system: (1) in-service teacher training; (2) classroom-level learning materials and textbook development; (3) parent and community involvement in education
decision making; (4) management and technical cepecity et all levels of the educafion system; and (5) rehabilitation of school infrastructure The program is
implemented in close collaboration with the respective Ministries of Education, Ministry of Finance, teecher training institutes and other pedagogical and research
institutions. USAID also facilitates donor-host country dialogue and to the extent possible collaborates with other donors to ensure complementary design and
delivery of educafion activities.
USAID/E&E EDUCATION PROGRAM IMPACT IN FOUR MUSLIM MAJORITY CENTRAL ASIAN COUNTRIES (2002 - 2006)

TYPE OF

MAJOR PROGRAM

PROGRAM

COMPONENTS

REGIONAL IMPACT
(approximate numbers)

Increase Access to

• School and classroom

• Rehabilitated 113 schools

Education

construction and rehabilitation (Kyrgyzstan, Tajikistan, Uzbekistan)

Opportunities
* School finance

• Piloted new school finance
mechanism based on per capita funding
formula to improve efficiency. Results
include more efficient student/teacher
ratios in pilot areas (Kyrgyzstan,
Tajikistan, Uzbekistan)

Increase the Quality

• Teacher training

• 8,142 primary and secondary school
teachers trained in interactive, student-

of Education

centered methods with mentonng and
other follow-up support (Kyrgyzsten,
Tajikistan, Uzbekisten, Turkmenistan)
• Community and parental

• 174 school community committees

involvement

strengthened to support school quality
improvements (Kyrgyzstan, Tajikisten,
Uzbekistan,)

• Model school program

• 300 "Model Schools'" model best

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practices in the use of new teaching
methods, management practices and
community involvement, (Kyrgyzstan,
Tajikistan. Uzbekistan. Turkmenistan)

Kyrgyzstan. Atter the Tulip Revolution, the country continues to hang in a tenuous balance. Strengthening the ability of the education sector to deliver quality
educetion relevant to the needs of mari^et-based democrecy will fecilitate the democratic transition end economic performance and competitiveness. USAID
provides teacher training and resource development for 11 pilot schools, which in tum will serve as teacher training centers for 84 cluster schools. The professional
Development Schools (PDS) heve been recognized by the Govemment of Kyrgyzstan as the alternative teecher training providers, a significant accomplishment in
a country with a highly centralized educational system that does not readily look to alternative service providers The Govemment of Kyrgyzstan also pays a salary
for a PDS coordinator From the inception of the project. 90.268 students benefited from this program and 12,062 teachers received training In addition, USAID
funds the Kyrgyz National Scholarship Test, which helps to fight corruption by enabling high school graduates to receive merit-based scholarships for higher
education.
Tajikistan. Keeping momentum towards democratic reform in Tajikistan is critical, and a strong education system is an important tool to support that goal. While the
basic education project inifially focused on primary grades, deemed to be in the most urgent need of support, in 2005. additional resources allowed the project to
expand the spectrum of intervenfions to cover grades 5-11 and introduce the Reading, Writing, and Critical Thinking Program From the inception of the project,
53,105 students benefited from this progrem and 481 teachers received training.
In addition to the regionally implemented PEAKS project, USAID is also supporting a basic education project through the Age Khen Foundation (AKF) This project
worits in remote, mountainous areas where teachers seldom have access to professional development activities. As a result of teacher training improvements,
teechers report increased attendance, retum to school of students who stopped attending, and new motivation to study among the students. From its inception, the
USAID-AKF project has benefited 5,000 students and trained 1,057 teachers
Uzbekistan. Although USAID was forced to halt project activities in 2006 due to the deteriorating political situation, the overall project achievements to date may be
noted here Since its inception, the basic education project has benefited 102,412 students and trained 676 teachers, The success of the project is also evidenced
by the feet thet meny of the Uzbek trainers continue to support the regional project activities in Kyrgyzsten and Tejikisten.
Turkmenistan. Turkmenistan has taken the disturtDing step of essentially eliminating upper secondary education by reducing the length of study to nine years
instead of the standard ten years (under the Soviet system). In addition, the shift to the almost total relience on the late President Niyazov's books (Rukhnama) as
the pnmery curnculum which emphasizes loyelty to the president and his spiritual teachings, resulted in devastating detenoration of education quality and relevance
and created e vast knowledge vacuum which will affect many generations to come. Young people under the age of 15 make up neariy 35 percent of the population
in Turisecondary enrollments heve fallen from 67 percent to 27 percent since 1991, This means thet approximately one in four students between ages of 15 end 18 ere
enrolled in school.
Besides a small-scale UNICEF initiafive in pnmary and secondary education, USAID has been the only other donor involved in education. Although the Govemment
of Turitmenistan has not formally endorsed the program, it has allowed interested schools to work with the USA ID-funded project Assistance-to-dale has focused
on teecher training in interactive teactiing and leaming methods Up to now, 57,335 students have benefited from the project and 533 teachers received training In
FY-2006, USAID did not fund the besic education project.
The change of leadership following the recent death of President Niyazov may create opportunifies for broader engagement President Berdimuhammedov
announced that Turkmenistan will embark on refonn to align the education system with intemational standards. If implemented, this may provide an opportunity for
U S involvement in basic education reform
8. Economic Reform
High unemployment and underemployment, often e result of slow economic growth, ere emong the most cntical issues in predominantly Muslim countries. U.S.
assistance prog rem s ettempt to address this issue with reforms to improve the investment climate Such reforms could include business registration, dispute
settlement, finericiel sector and agricultural refonns, combined with education, job training, end health programs.
The United States strategy of Total Economic Engagement pursues economic reform, rule of law, and global economic integration woridwide, including countries
with predominantly Muslim populations. Total Economic Engagement includes:


Regular bilateral discussions on these topics with host govemment officials, with both U.S. Embassy officials and officials from a wide range of U S. egenaes
participating in these talks.



Fonnal structured dialogues, high-level Economic Dialogues, and Trade and Investment Framework Agreement (TIFA) Councils;



U.S. bilateral and multilateral assistance programs for economic refonn, trade capacity building, and rule of law are managed chiefly through USAID, the
Millennium Challenge Corporation, and the State Department's Middle East Partnership Initiative Programs are often complemented with technical assistance
provided by speaalized U S agencies and offices,



Working through our membership in such international organizations as the Intemational Monetary Fund (IMF), World Bank (WB), Worid Trade Organization
(WTO), end OECD (MEAN-OECD Investment); we coordinate bilatere 1 policies end assistance strategies with these organizations and other bilateral donors
to edvance reform goals, and

• Working with non-govemmental organizetions (NGOs), such as Transperency Internafional, and U S and foreign business associations, such as American
Chem bers of Commerce and Business Councils, to advance reform issues of mutual concern,

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integrating Predominantly Muslim Countries into the Global Trading System
There are a number of USG-funded programs to promote predominantly Muslim countnes' integration into the global trading system and promotion of regional trade
and rule of law.
The following table lists USG funding for trede and capacity building programs. USAID/Asie and Near East Bureau currently funds 86 percent of these programs in
these countries.

1

USG Funding for Trade and Capacity Building

Country

USG FY-2006 Funding

Afghanistan

$59,337,037

Bangladesh

$879,412

Egypt

$29,678,973

Indonesia

$13,873,877

|lraq

$9,482,830

Jordan

$10,960,695

Lebanon

$50,000

Morocco

$10,867,389

Pakistan

$3,929,000|

West Bank/Gaza
Yemen
TOTAL TCB Funding

$0
$448,824
$139,508,037

WTO Awareness and Accession. FY-2006 USAID programs with components dealing withWTO awareness and accessionare being implemented in Afghanistan
($11,000,000), Egypt ($7,500,000). Iraq ($5,029,501), and Yemen ($100,000):



USAID/Afghantstan's Strengthening Private Sector through Capacity Building goal is to establish sound economic governance within the economic
ministnes and agencies of the Govemment of Afghanistan Activities include customs operations end edministretion end other related refonns supporting
progress toward WTO accession



USAID/Egypt's Assistance for Customs and Trade Facilitation Project targets all aspects of trade capacity building, including trade policy, trade
facilitation, inspections, import and export procedures, frade agreements, and WTO awareness



USAID/lraq's Trade Policy and Market Access Support - Iraq. Key objectives include assisting with the Govemment of Iraq's accession to the Worid Trade
Organization, supporting trade policy reform, and fraining and capacity building on trade-related matters,



USAID/Yemen's Agricultural Support Project supports both Yemen's capacity to increase its exports of tradifional and non-traditional commodifies, and
Yemen's WTO accession

USAID Global Export Promotion Programs. USAID global export promotion program sin FY-2006 included Afghanistan/Pakistan ($493,000). Bangladesh
($630,000). Egypt (the $7,500,000 mentioned previously and $4,000,000), Jordan ($1,000,000), Morocco ($3,587,706 and $5,600,000), Pakistan ($2,500,000 and
$240,000), end Yemen ($73,000)
• A U.S. Interagency Worthing Group supporting the Presidential Initiative for Reconstruction Opportunity Zones (ROZs) sponsored a study on the most feasible
locafions and products to be included in ROZs to be located in Afghanistan and adjacent border areas of Pakistan. Goods produced in the ROZs could
enter the U.S. market duty free. The study was funded and implemented by USAID/Afghanistan, USAID/Pakistan, and USAID/ANE


In Bangladesh, the Shrimp Quality Support Project focuses on improving the quality and quantity of shnmp exports by Bangladesh in soaally and
environmentally acceptable ways by transfenlrig appropriate applied research to farmers,



USAID/Egypt's Assistance for Customs and Trede Fecilitation Project (mentioned previously),



USAID/Egypt's information Communication Technology works to establish the legal and regulatory framework necessary to strengthen e-commerce and
information and communication technology; these investments are designed to support business development, trede, and investment,



USA ID/Jordan supports the Business Development Center - Jordan, vktiich provides assistance to firms in Jordan to help them adapt to the integration of
Jordan into the global economy, and enhances their ability to export to international markets



USAID's Morocco Fast Track Trade is designed to help Moroccan companies identify U S, business partners and provide advice on marketing, packaging,
and exporting lo the United States. The Project prepares export-ready Moroccan small and medium enterprises to use the U S - Morocco Free Trade
Agreement to their best advantage



USAID's Morocco New Business Opportunities supports the U S - Morocco Free Trade Agreement by providing technical assistance, training, and
business contacts to Moroccan manufecturing enterpnses to enable them to successfully export to the United States

• The Pakistan initiative for Strategic Development and Competitiveness provides technical assistance end training to increase the competitiveness of
Pakistani small and medium sized enterprises. This USA ID/Pakistan project worihorticulture, and furniture, to improve their capacity to market end export their product In addifion. USAID's Embroidery Value Cham in Pakistan project is
linking airal female embroiderers to agents, who in turn sell their product to urban and rural export markets.
Customs Reforms. Customs refonn sa re supported by USAID FY-06 programs m Afghanistan ($11,000.000). Egypt ($7,500,000, mentioned previously), Iraq
($1,453.334), and Jordan ($6,437,695):
• Afghanistan's Customs Reform Program is imbedded in USAID's Strengthening Pnvate Sector through Capaaty Building Project, which is designed to

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establish sound economic govemence in economic ministries and agencies, including the Ministry of Finance and Customs Service Customs generated some
$150 million in Afghan fiscal year 20i^-5, surpassing the IMF revenue generation goal
^ Customs Reform forTrade Improvements-Iraq isaUSAlD project to assist the government of Iraq to develop the necessary customs reforms to rebuild
the economic infrastructure in Iraq Amodemcustomsserviceisessentialforrevenuecollection and international trade management
^ Jordan's Customs Reform Program is embedded in USAID's Achievement of Market Friendly Initiatives and Results (AMIR), which supports pnvete sector
development and trade capacity building.
USAIDAfricaBureauProgramsProgramsmanagedwithinthe USAID AfricaBureau include SubSeharenintegrationintotheglobaltradingsystem^
forces of which are the African Growth and Opportunity Act (AGOA) and the Presidential Initiative-African Global Competitiveness Initiative (AGCl) The Afri^^
Global Competitiveness Initiative promotes export competitiveness and growth of African enterprises to expand trade with the United States under the Afncan
Grov^ and Opportunity Act,other international trading partners.and within Afnca Program efforts are focused on helping countnes buildasound enabling
environment including policies, laws and regulations goveming business and trade; improving infrastn^cture to facilitate trade: strengthening financial se
small and medium sized enterprises and other businesses; and developing the energy sector to meet the needs of growing Afncan economies
USAID Europe and Eurasia Bureau Programs.
Albania USAID's objective in Albania IS to strengthen its integre^oriirito the Euro-Atlantic community end promote its contribution to ethnic in^
region USAID/Albanie's programs worked with the govemment to improve the business climete for pnvate sector growth and investment and to improve private
sector competitiveness to meet international export requirements The Albanian Center for InternationalTrade, founded in 2003,currently essists the Government
of Albenia to improve the quality of its trade policies The Enterpnse Development and Export Market Services Project scheduled toronthrough September 2008,
promotes the competitiveness of small end medium Albanian enterpnses in domestic and foreign markets, and accelerates the entry of Albanian exports into globe
markets
A^ert^aljan.Azerbaijans program emphasizes economic growth and reform,withafocus on developing the non-oil sectors of the economy In 2006,USAID
worthed todevelopawell-functioning private sectortoincreasejob creation and regional economic development
Bosnia and Herzegovina. The program in Bosnia and Herzegovina (BiH) supports progress towards full integration into the EU USAID/BIH worthed to integrate the
energy sector into the regional European framewori^ end supported the development and implementation ofecoherent direct taxation system that is regionally
competitive USAID's competitiveness projects promote trade and investment in agnbusiness, wood processing, and tounsm by improving the competitiveness of
the firms, industries, end treining firms to meet EU standards
Central Asia Region.The TradeFacilitetion and Investment (TFl) Project has been opereting in Kazakhstan and the Kyrgyz Republic since 2001 and in Tajikistan
and Uzbekistan since 2002 The project seeks to improve the trade and investment environment for small and medium-sized enteq:^nses through the reduction of
investment constraints, trade facilitation, end accession to end active participation in the WTO (Kyrgyz Republicjoined in 1998)
Building on USAID's TFl Project, the U.S. Cer^ral Asia Trade Facilitation initiative works to foster greater regional trade through reduced transaction costs for
businesses by harmonizing, strengthening, and streamlining customs functions
The Business Environment Improvement Project(BEI) was launched for Kazakhstan,the Kyrgyz Republic andTajikistan in OctoberThis program supports the
streamlining of legal and regulatory processes and facilitates multi party engagement to improve the business, trade, end legal environment.
The Central Asia Infrastructure Integretion Initiative, under the Regional Electricity Martlet Assistance Project (REMAP) help^
competitive regional electricity merket to increase regional electricity trade, stimulate economic grov^h, and provide merket-based solutions fo
related to hydro facilities and resenBoirs
Kazakhstan. USAlD'sTrade Facilitation and Investment (TFl) Project operates five offices in Kazekhstan and was directly involved in the drafting of Kezekhstan's
Customs C o d e , b r i n g i n g the ooontry into g r ^ ^ t e r o o m p h ^ n o ^ W i t h W T O principles ^ o d ^ g r ^ ^ m ^ n t ^

TFIi^^i^ofio^nclngtnetr^in^o^offronthneco^toi^^offic^r^io

the identification and seizure of pirated goods which will help Kazakhstan meet the standards of the Agreement onTrade Related Aspects of Intellectual P
Rights (TRIPS) and achieve removal from the Special 301 Watch LisL both of which will help Kazakhstan"s accession process to the WTG The Kazakhstan Small
Business Development Project, funded in October 2006, aims to promote development of small business, resulting in an increase of sales domestically and
regionally
Kosovo.USAID's objective in Kosovo IS to sfrengthen its integration into the Euro-Atlanticcommunity and promote its contribution to ethnic integrate
region USAID's goal is to help Kosovo make the transition from internetional administration to self-governance in an effective and peaceful manner USAlD
provides training and expert counsel to ensure Kosovars quickly build capacity in the fiscal and economic policy sectors, pnvate enterpnse developmenL end
energy management One such program is the Cluster and Business Support Project, assisting businesses in the constroction materials, livestock, and fruit and
vegetables sectors by promoting productivity, trade and investment, identifying trede, mari^eting and import-substitution opportunities end providing trei
European Union standards
Kyrgyz RepublicUSAID's Trade Facilitation and Investment Project provides support to the WTO Department within theKyrgyz Ministry ofEconomic Develop
and Industry^Trade(MEDlT) to increase Its technical capacity in the legal end regulatory processThe Kyrgyz AgnEnterprise Development
closely with the USAID Ferghana Velley Agribusiness Initiative, end provides development assistance to private egricultural-input suppliers that sha^^
Velley with Uzbekistan endTejikistan
Tajikistan USAlD'sTradeFacilitetion end Investment Project worths directly with the Tejik govemment to prepare it to meet its WTO commitments by revising end
updeting the LegislafiveAction Plan to bring trade-releted legislation into conformity with the provisions ofWTO Agreements PetenL cop

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34003

geographic indication legislation are revised to reach conformity with the provisions of the Trade-Related Aspects of the Intellectual Property Rights (TRIPS)
Agreement USAID's programs supjxjrt small and medium enterprise development, customs reform, and the creation of agncultural value chains Fiscal refonn
projects focus on reducing regional disparities by increasing the effectiveness of local tax administration and increasing the capacity of local governments to
develop and execute budgets
Turi^menistan USAID worths to foster trade advisory services and implement Intemetionel Financial Reporting Steridards in Turtcmenistan In FY-06, USAID
implemented Its Agncultural Improvement Project to improve competitiveness and increese the rural incomes of farmers through the producfion of quality goods for
domestic and international markets,
Uzbekistan In FY-06 USAID assisted Uzbekisten in its WTO accession process supporting the drafting of new legislation and amending the existing legislation
required, and wortStability Pact for Southeastern Europe. The Stability Pact for Southeastern Europe (SP) has several relevant programs related to global trade that affect parts of
the region with significant Muslim populations, including Albania, Bosnia and Herzegovina, end Kosovo In December, under Stability Pact leadership, the countries
of Southeastern Europe signed the amended and enlarged Central European Free Trade Agreement (C EFTA), which bnngs the region the benefits of freer trade,
improve the climate for investment, and bolster stability by increasing economic cooperafion. The SP's Trade Woriratification and implementation of a networi< of bilateral free trade agreements among the members of the Stability Pact and supports negotiation of e single regional
trede egreement aimed at hannonizing the bilateral trade agreements to encompass all SP members The U.S. supports this process by providing technical
assistance to lower non-tariff bamers within the region, consistent with WTO principles.
The SP has also helped develop a common energy market between the European Union and Southeastern Europe On October 25, Albenia, Bosnia-Herzegovina,
end UNMIK/Kosovo (among other Southeestem European parties) signed the Energy Community Treaty in Athens, This treaty will establish a common reguletory
framework for trade in electricity and gas and facilitate financing end investment by both official donors and private investors in the rehabilitation of existing
infrastructure and construction of new infrastructure.
Under Stability Pact auspices, the OECD Investment Compact for Southeastem Europe aims to improve the region's investment condifions. by setting out
commitments for policy reform, which countries need to implement in order to creete e robust end susteineble maritet economy end to encourege increesing locel
and foreign direct investment Albania and Bosnia and Herzegovina (among other Southeastern Europe nations) are signatories.
Possible Actions to Promote intraregionai Trade and Rule of Law In the Region
Supporting i n tra reg 1 onel trade and rule of law is a key aspect of U.S. policy in the Middle East end around the world.
Intraregionai Trade
• The President's vision of a Middle East Free Trade Area (MEFTA) by 2013. linking countries in the region with each other end the U.S. is the centerpiece of
our effort to promote Intraregionai frade Our strategy for etteining MEFTA includes


Negotiating Free Trade Agreements (FTAs) with counfries ready forthat step The U S has concluded FTAs with Israel, Jordan, Morocco, Bahrain, and



Working with additional countries through the TIFA process to advance readiness for FTA negotiations: and

• Assisting refonn-minded Middle East countries that are not yet in the WTO accession process


The Middle East Pertnership Initietive (MEPl), MCC. and USAID Missions in the Middle East, provide support for the MEFTA initietive through a veriety of
progrems in trade capacity building. MEPl and USAID Missions in the Middle East are supporting the WTO accession efforts of Iraq Yemen, and Lebanon.
U.S. essistance programs assist FTA partners Jordan, Morocco, Bahrain, and Oman to implement their FTAs with the United States,



USA ID/Jordan's Achievement of Marioffers support to Jordan as it liberalizes its economy and works to meet the requirements of regional and global trade opportunities USA ID/Morocco assists
the govemment and private sector to successfully respond to the challenges and opportunities that the FTA with the United States will bring

The Rule of l ^ w
• USAID/Egypt's Administration of Justice Support II project promotes the rule of lew by refonn ing end modernizing the commercial court system and
improving the access to quelity legel services, FY-2006 funding is $5,000,000


USAID/Morocco's Commercial Court Judges Training in Trademark Opposition Process promotes mandetory continuing education forjudges and
lawyers, including trademark opposition. This builds on the work of a previous USAID project on modernization of commercial laws and of the judiciary. The
project will also cooperate with USAID funded training provided the U S Patent and Trademarit Office regarding implementation of the system for both judges
and customs officials

The Millennium Challenge Corporation (MCC). In addition, the Millennium Challenge Corporation (MCC) provides assistence for transformational development in
countries that perform well on 16 independent, transparent policy indicators in the ereas of njling justly, investing in people, and economic freedom Besides the
financiel support provided by MCC programs. MCC creetes en incentive for candidate countries to adopt legal, policy, regulatory, and institutional reforms related to
the MCC selection cntene. Such refonns will contribute to countnes* efforts to reduce poverty and increase economic growth
Summary of MCC Activities in Predominantly Muslim Countries:
Compact-Eligible Countries. Besed on their good performance on the 16 policy indicators mentioned above, Compact-Eligible countnes are invited to apply for
substantial grants from MCC for programs that they design and implement through a "Compact."
Mali. Mall signed a five-yeer, $460.8 million Compect with MCC in November, Us Compect eims to reduce rural poverty and help echieve nafional food security

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throughesustainable increase in the economic performance of the agricultural sector The Compact also intends to spur economic growth and reduce poverty by
increasing the competitiveness of light industry and increasing the value added of exports and tourism The Compact's objectives will be met through investment
aimed to increase farmers'incomes, enhance agricultural supply chains,reduce transport costs and createaplafform for industrial production The Compact
focuses on key infrastructure investments that capitalize on two of Mall's major assets, the Bamako-Senou Intemational Airport, gateway for regional and
international frade,and the Niger River,asource of waterforimgatedagnculture
Burkina Faso. Burkina Faso submittedaCompact proposal to MCC in October It aims to promote economic growth in the roral sector by fostenng land tenure
security; investing in imgation and watershed management infrastrocture for agricultural purposes; constnicting national roads, feeder roads, and mari^^
infrastructure, and improving existing agro-industriel supply chains
Jordan. In November,MCC"s Board of Directors selected Jordan es eligible to apply for Compact funding Jordan IS cunently prepanngaproposal for submission to
MCC
Morooco. Morocco submitted its Compact proposal to MCC in August The proposel focuses on relieving constraints to grovBth in the agriculture, fishing, artisan,
and smell enterpnse finance sectors
Threshold Programs are designed to assist countries that heve demonstreted significant commitment to improving their performance on MCC selection cri^
but do not yet pass more than half the indicators in each of the three selection categories of ruling justly, investing in people, and encouraging economic freedom A
Threshold Program provides financial assistence to help improvealow score on et least one of MCC"s policy indicators
Albania. Reducing con-uption is the primary focus of the $138million Albanian program Albania IS receiving assistance from MCC to fund three program
designed to refonn tax administration,public procurement and business administrafion.The program anticipates reducing the extensive red tape end b^^
payments needed to startabusiness while increasing the national tax base
Burkina Faso.The$129million program isapilot program that seeks to improve performance on giris'primary education completion rates Specific inter^^^^^
include the construction of 132'"giri-friendly" schools, teecher training,providing takehome dry rations to giris who maintaina90 percent sch
and providing literacy training for mothers Buri^ina Faso is now eligible for Compact assistance
Indonesia The $55 million program with Indonesia seeks to immunize at least 80 percent of children under the age of one for diphthena, tetanus, and pertussis
and 90 percent of all children for measles TheThreshold Program also hasacomponent aimed at curbing public conuption by reforming the judiciary
Jordan.The $25 million Jordanian program aims to strengthen democrafic institutions by supporting Jordan's efforts to broaden public participation in the polifi^^
and electoral process, increasing government transperency end eccountebility, and enhancing the efficiency and effectiveness of customs edministretion^
ThresholdProgramisapartofJordan'srefonneffortsfocusedonimprovementsinpublicadministration,civilliberties,infrastructure, and the economy Jordan has
now become eligible for Compact assistance
Kyrgyz Republic Selected es eligible forthe Threshold Program in FY-2006 and reselected in FY-2007,the Kyrgyz Republic has requested MCC funding to
improve perfom^ance on MCC indicators in the ^t^^^ngj^^^ycategory The Kyrgyz Republic submittedaThreshold Country Plan to MCC,which is cur
review
Yemen. In Febroary 2007,the Republic ofYemen was reinstated into the Threshold ProgramThe MCC Board of Directors found that the Yemeni govemment
worthed aggressively end demonstrably to address the country's performance on the MCC selection criteria Yemen mey now apply foraThreshold Program
agreemenL
The Middle East Partnership initiative (MEPl). In 2006 the State Department's Middle East Partnership Initiative (MEPl) provided tangible supporttor^^
theregionsodemocracycouldspreed.educationcouldthrive economies could grow,and women could be empowered Working in 16 countries and the
P ^ l e ^ t i n i ^ n t e r r i t o o e s . M E P l iove^ted in p r o ^ r ^ m ^ r a n ^ i n ^ f r o n ^ t r 2 i d e t ^ c h n i o ^ i ^ 5 ^ i 5 t ^ n c e to c^mmeroi^l c o d e r

Examples Of MEPI s work with reformers include the following:
^ Provided techriicel end other assistance Iri support of successfully completed free trade agreements with the Behrein and Oman
^ Expanded trade capacity of Arab countries with training and technical assistance;anumber of Gulf countries are drafting new customs codes and updating
agricultural import/export standards
^ Provided entrepreneunal training formore than 300 perticipantsalmost half ofthem women.from 16 Middle Eastem and North African countries,with 35
alumni going on to start or expand businesses At least 500 new jobs have been created follov^ng their participation in MEPl progrems
^ Extended credit and services to smell-end medium sized businesses through peer consultation and training for regional banks and financial organizetions
^ Established self-sustaining Junior Achievement chapters in 12 countries throughout the Middle EasL with more thanlO.000 students participa^

Creeled

public privetepertnerships that assisted in the susteinability of Junior Achievement chapters
^ Expended commercial end legel reform efforts in the Gulf by working lo update legel cunicula at law schools in Qeter and Oman, update commerciel codes to
meet intemational slenderds in Bahrain and Oman and provide continuing education programs for the judiciery
^ Established business network hubs in SIX countries, focusing on fraining, professionel development, and infonnation shering on laws, business oppo
skills, end the global economy

http://www.state.gOv/j/ct/ris/crt/2006/82728.htm

1/10/2013

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UNITED STATESOF AMERICA
y.

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

Supplement to Government Addendum to
Motion toTakeJudicial Notice dated
16November2012
Enclosure 24
11 January 2013

Defense.gov News Article: |^Laden Letters Show Desire to Attack U ^ f argets

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Defense.gov News Article: ^^Laden Letters Show Desire to Attack L^Jj^argets

Page 34007
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^io^^^^o^^^^f^^^^wO^si^^^o^^c^^^^^^^i^^^^
By Cheryl Pellerin
American Forces Press Service
WASHINGTON,May 3, 2012-Gsama bin Laden's letters urged jihadist groups to stop domesfic attacks lhat
killed Muslimcivillansandfocus on the United Stetes."ourdesired goal,""seysesludy of declassified documents
captured during lest year'sU.S raid on his compound in Pakistan
The 59page study titled "^LettersfiromAbbottabad: Bin Laden Sidelined^ released online today,was written bya
teemofresearcherstheCombatingTe^orismGenteretWeslPointendsupplemeritedwith reviews and support
from other experts
ThecenterisanindependenL privalelyfi^ndedresearchandeducational institution at theUS Military Academy
that informs counterterrorism policy and strategy
The end ofthe Abbottabad raid was the start ofamassiveanalyfical effort, retired Army Gen JohnPAbizaid,
the center's chairman, said in the report s foreword, adding thai experts from across the intelligence community
worthed to exploit the captured documents
The letters total 175 pages in the original Arabic and 197 pages in the English translation. Theeariiest is dated
September 2006 and the latestApril 2011,the at^ors write, adding that some letters are incomplete or undated
and not all attribute their euthors or indicate an addressee
Besides bin Leden, those who appear in the letters as authors or recipients include el-Oeide leeders Atiyyetulleh
and AbuYahyaalLibi;AdemYehya Gadahn,an American al-Qaida spokesman and media advisor; Mukhtar
Abu alZubayr,leeder of Somali militent group Harakat al-Shababal-Mujahidin; Abu Basir.or Nasir alWuhayshi,
leaderofYemen-based al-Qaida in theArabian Peninsula; and HakimullehMahsud,leaderofTehrik-e-Taliban
Pakistan
'Bin Laden's frustration with regional jihadi groups and his seeming inability to exercise confrolovertheir actions
end public statements is the most compelling story to be told on the basis of the17declassified documents.'the
report said
Bin Laden s public statements focused on Muslim enemies such as corrupt Muslim rulers ar^ their Westem
^overseers,"" the analysis said, but ""the ^ ^ s of his private letters is Muslims st^f^ng at the hands of his jihad
brothers '
The late al-Qaida chieftain also had been burdened by t t ^ incompetence of affiliate terror group, the report said,
"'including their lack of political acun^nlo win public support, their media campaigns and their poorty planned
operetions " that killed thousands of Muslims
Thefeilures of el-Qeide in ireqworried bin Laden,who urged othergroups notto repeattheirmislakesGadahn
advised alOeide to publicly dissociate itselffromthegroup,the report says.
Bin Laden also womed about expansion plans of al-Qaida in the Arabian Peninsula, for example waming them
nottodeclarean Islamic state in Yemen, and about indiscriminate attacks against Muslims byTehhk-e-Taliban
Pakistan, or TTP
Such attacks caused Atiyyatulleh end AbuYahya el-Obi towrite to TTP leederHekimullehMahsudtoexpress
their displeasure with If^ group s ideology, methods and behavior, "'the report said
The al-Qaida leaders "also threatened to take public measures unless we see from you senous and immediate
practical and clear steps towards reformir^^yourweysj end dissociating yourself from these vile mistakes ^that
violate Islamic Lawj, "the report added
Bin Laden withheld recognition ofaFebruery pledge of loyalty to alcalde by Somali rebel moven^tal-Shebeb,
the report said, feanng'"thatafonnalmergerwithal-Qaida would prevent investment and foreign aid in Somalia."
Thedocuments releesed 10 theCombatingTen-onsm Center alWest Point mentioned al-Oaida in the Islamic
Meghreb, theTaliban and Jaysh al-lslam,but the report says the discussions "^are not substantive enough to
inform an understanding of the relationship between el-Oeide'ssenior leeders and these groups'
Among the documents is an April 2011letterfrom bin Laden responding to the Arab Spring,which he considered
a'formidableevent" inthe modem history of Muslims
'This letter.' the report seys, " refiected his intended strategy of responding to the new political landscape that
was emerging in the Middle East end North Afi^ceB
In the Arab world, bin Laden wanted al-Qaide to focus its efforts on media outroach and ""guidance "" He believed
thetamedia campaign should be launched to incite ""people who have nol yet revolted and exhort them to rebel
against the rulers,"'the report said
But he also wanted to invesL the report said, in "educating and waming Muslim people from those ^who might
tempt them to settle forj half solutions, such as engaging in the secular political process by fonning political
parties""
In Afghanistan, bin Laden wanted jihadis to continue the fight against the United States.
Bin Laden believed their efforts, the report said,'weakened the United States, enabling Muslims elsewhereto
revoltagainsttheirn^lers,no longerfearing lhat the United States would be inapowerful position 10 support
these rulers "
Thedocumentsshowthatel-Qaidasreletionshipwilh Iran is one of"'indirectandunpleasantnegotietions over
the releese of detained jihadis andtheirfemilies,including members ofbin Ladens femily,'the report said,
addinglhatdiscussioneboutPekislaninthedocumentsis'scarceendinconclusive"
Related Sites:
Comh^lini^Terrori^mCenteratWe^^ Feint

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34010

UNITED STATESOF AMERICA
y.

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

Supplement to Government Addendum to
Motion toTakeJudicial Notice dated
16November2012
Enclosure 2^
11 January 2013

Page 134011
of2

Al Qaeda Releases First-Ever English Terror Magazine

In its latest effort to reach Western audiences, Al Qaeda has released its first-ever English-language magazine
that provides detailed bomb making instructions and calls on followers to "destroy" America.
The media wing of Al Qaeda in the Arabian Peninsula (AQAP). Al Qaeda's affiliate in Yemen and Saudi Arabia,
released the inaugural issue of Inspire via the internet on July 11, 2010. While Al Qaeda has previously released
English-language videos and statements. Inspire marks the first time the international terrorist network has
published a magazine in English.
Federal authorities have reportedly claimed that Samir Khan, a blogger who distributed terrorist propaganda
material from the U.S. for several years, is the magazine's principal author. Khan, who was born in Saudi Arabia
and grew up in New York and North Carolina, reportedly left the U.S. for Yemen in October 2009.
According to the editor's note, the 67-page magazine aims to provide a
"platform to present the important issues facing the ummah [Muslim
community] today to the wide and dispersed English speaking Muslim
readership."
The featured article is written by Anwar al-Awlaki, an American-born
Muslim cleric living in Yemen who distributes radical online lectures
encouraging American Muslims to attack non-Muslims and Western
interests, Al-Awlaki's article, entitled "May Our Souls be Sacrificed for
You!" calls for "the execution" of those who have promoted the "defamation
of Muhammad."
Al-Awlaki specifically targets a Seattle-based artist who started a campaign
- "Everybody Draw Muhammad Day" - in opposition to the threats against
the creators of South Park for satirizing issues surrounding the depiction of
the Prophet Muhammad, "This snowball rolled out from between her evil
fingers," al-Awlaki writes. "She should be taken as a prime target of
assassination along with others who participated in her campaign."
Al-Awlaki, whose previous messages have inspired several American Muslim extremists to carry out terrorist
attacks in the U.S. and join terrorist groups overseas, argues that the Western political system and all who
support it share responsibility for promoting the "defamation of Islam." All Western interests, according to alAwlaki, are therefore permissible targets. "This would make the attacking of any Western target legal from an
Islamic viewpoint," al-Awlaki argues. "Assassinations, bombings, and acts of arson are all legitimate forms of
revenge against a system that relishes the sacrilege of Islam in the name of freedom."
Inspire blends al-Awlaki's incitement to violence with practical instructions on making explosives. An article
entitled "Make a Bomb in the Kitchen of Your Mom" provides step-by-step instructions on making an explosive
device using household ingredients such as sugar, match heads, Christmas lights, batteries and a clock, "In one
or two days the bomb could be ready to kill at least ten people," the article reads. "In a month you may make a
bigger and more lethal bomb that could kill tens of people." According to the author, the bomb-making
instructions not only "relieve" readers "of the "difficulty of traveling to us," but also enable "individual wori< inside
the West such as the operations of Nidal Hassan and Faisal Shahzad."
Nidal Malik Hasan, the alleged gunman who killed 13 people at the Fort Hood Army base in Texas in November

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Page2of2
34012

2009,issingledoutasaherothroughout^nsp^n2Onearticleurges"everysoldierworkinginthecrusaderarmies
and puppet governments to repent to Allah and follow the example of the heroic mujahid brother Nidal Hassan
Is^cJ: to stand up and kill all the crusaders bv all means available to him"UmarFaroukAbdulmutallab.aNi^erian
manwhoattemptedtodetonateabombonatransatlanticflightfromAmsterdamto Detroit onChristmasDayin
2009,isalsodepictedaherothroughoutthemagazine
Otherarticlesin^^sp^redetailthewaystoconcealonlineanddigitalmessagesbyusingencry^tionsoftwareand
whattoexpectwhentravelingabroadtobecomeamujahid,orMuslimwarriorThemagazinealsoincludes
statements and communigues previously released by various AlQaeda leaders, including Osama bin Laden and
Aymanal-Zawahiri,AI Qaeda's second-in-command. In another article, AQAP leader Nasir al-Wuhayshi
explainsthatallthebranchesofAl Qaeda "wanttowintheraceofdestroyingtheidol(ie,America)andtohave
the greatest share in that effort "
Al Qaeda's agenda of eliminating the Jewish state is also reiterated throughout ^r^s^^ri^ An article entitled, "From
Here We Start and in al-Agsa We End,"calls for Muslims to divest from Israel and "cut aid to the Zionist Crusade
andkillthoseoftheOrusaderswhomwefindinourland"Thearticlealsourgesfollowersto"destroythe
Western interests until Europe and America stop their support ofthe Jews."Asanothertactic, followers can
attacklsraelbyholdingdemonstrations, "followed byexplosionsandcivildisobediencebymilitaryrage"
^^sp^^isamonganincreasingnumberofAIQaedamaterialspublishedforEnglishspeakingaudiences In
recentyears,AIQaeda'smediawinghasreleasednumerousEnglishvideosfeaturingAdamYahiyeOadahn,an
American Muslim convert from California who joined AlQaeda in the Iatel990s.Other AlQaeda recordings and
statements, includingthosefeaturingAIQaedasecondincommandAymanalZawahiri,aresimultaneously
released in Arabic with English subtitles and translations
Like AlQaeda, other Muslim extremist groups have increased efforts to appeal to Western audiences by
releasingEnglishmaterialsonlinelnthesummerof2009, forexample, themediawingofAl Mosul Islamic
Network, anapparentlnternet basedgroupcreatedtoprovideaforumforEnglishtranslationsofextremist
material,released the inaugural issue of its own online magazine, Oe^e^i^er,so^^^eTr^^^ The previous spring,
Al Fursan Media, an apparent collaboration of online terrorist sympathizers, released an English language
publication entitled J^^a^^eco^^ec^^on^

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34013

UNITEDSTATESOF AMERICA
y.

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

Supplement to Government Addendum to
Motion toTake Judicial Notice dated
16November2012
Enclosure 26
IlJanuary 2013

Al Qaeda launches English ||||^age magazine - CNN.com

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Al Qaeda's first English language magazine appeared online promising an article on "Make a Bomb m the Kiichen of Your

STORY H I G H U G H T S

UNHCR

(CNN) - Al Qaeda has launched this week what it is calling its first

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The launch this week was not
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One article is titled "Make a
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Ai Qaeda

The launch o f t h e magazine, called "Inspire", though did not go
smoothly as only three pages of what was billed as a 67-page
magazine appeared online, A fourth page was unsuccessfully posted
on websites and showed nothing but garbled images.

Anwar al-Awlaki
Terrorism

A table of contents of the magazine listed an article called "Make a
Bomb in the Kitchen of Your Mom."
The magazine also promised to have an article written by fugitive
American-born cleric Anwar al-Awlaki.
Awlaki has recently been linked to the failed attempted Chistmas Day
bombing of a plane bound for Detroit, Michigan

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The director of the National Counterterrorism Center said this week
that the U.S. government believes Awlaki had "a direct operational
role" in the bombing attempt.
CNN's Saad Abedine contributed to this report

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T w l X e D - 3 years ago

I'm a muslim and I'm proud to let you know all that Islam is a peaceful religion.
These extremist idiots have taken and dnven the religion in the direction which I feel sorry
for For instance, the text "sacrafice for God" is mentioned in Quran many times
HOWEVER it has different meanings and clearly not what these so called "God lovers"
have interpreted. An educated, broad, open, humble minded would definately interpret it
to messages such as if you give away a portion of your money to some needy poor family,
it's regarded as sacraficing.., if you stay awake all night taking care of your old parents
leaving all your entertainment stuff aside for the night, it's called sacraficing. if you're
praying to God all night rather than watching a movoe or anything wordly, it's called
sacraficing.. In Quran It's NOWHERE wntten to make people accept Islam forcefully o r t o
kill them if they don't abide by your so called customs and rules. Infact The Quran clearly
states that people who do not believe should be left alone to be judged by the God. Infact
The Quran clearly tells the Prophet Mohammed to argue with people courteously. For
instance I'll quote something from Quran here " Invite (mankind, O Muhammad ) to the
Way of your Lord (i.e. Islam) with wisdom (i.e. with the Divine Inspiration and the Qur'an)
and fair preaching, and argue with them in a way that is better Truly, your Lord knows
best who has gone astray from His Path, and He is the Best Aware of those who are
guided. And if you punish (your enemy, O you believers in the Oneness of Allah), then
punish them with the like of that with which you were afflicted. But if you endure patiently,
verily, it is better for As-Sibirin (the patient ones, etc,)."
The above translation of a few verses of Noble Quran states pretty much everything like
"fair" preaching, "fair" revenge and the best part "patience" These so called muslims are
just abusing the religion name for their own good. I do NOT consider them muslims Also
just to enhance your knowledge, there is no concept of "72" virgins in heaven for the
suicide bombers. Yes it's true that a person who does good in the worid will be provided
with a lot of rewards in the heaven (hereafter) that we all believe in including Christians
and Jews The reward includes a garden of flowing stream fresh fruits AND ever lasting
"legal" companions/wives who have never been touched by any man or any other creation
before. So the screwed up mind may take it as yeah go die and kill innocent people in the
name of Allah and be blessed with virgin 'S" as if the hereafter is not a perfect place but a
brothel. I request you quys to please be minijful o f t h e facts and lets blame these

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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 27
11 January 2013

Top News, Latest headlines^Kprld News & U.S News - Upi.com

Page 34018
1 of I

Al-Qaida launches English-language e-zine
Published: July 1, 2010 at 8:54 AM
WASHINGTON, July 1 (UPl) - WASHINGTON, July 1 (UPl) - Al-Qaida launched what it says is the
organization's first English-language online magazine, which observers say could be used to recruit U.S.-born
terrorists.
SITE Intelligence Group, an organization based in Maryland that tracks ten-or groups, said the e-zine "Inspire"
was posted on radical Web sites earlier this week, CNN reported Thursday,
The magazine's debut apparently did not go smoothly, SITE said. Only three pages ofwhat was touted as a 67page magazine appeared online and a fourth page displayed only garbled images.
The table of contents include an article called "Make a Bomb in the Kitchen of Your Mom." The magazine also
indicated it would have an article written by fugitive U.S.-bom cleric Anwar al-Awlaki, who is linked to an
attempted Christmas Day bombing of an airplane bound for Detroit.
©2010 United Press International, Inc. All Rights Reserved.

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34019

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 28
11 January 2013

Al Qaeda's First English Laj^gj^ge Magazine Is Here - Global - The A t j j j ^ c

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A l Qaeda s First English
Language Magazine Is Here
By Marc Ambinder
As the U.S. struggles to manage its efforts to influence opinion about Al Qaeda abroad, Al Qaeda on the
Arabian Peninsula has produced its first English-language propaganda magazine.
It's called "Inspire," and you can read parts of it below. A U.S. official said early this moming that the
magazine appears to be authentic.
"Inspire" includes a "message to the people of Yemen" directly transcribed from Ayman Al-Zawahari,
Al Qaeda's second in command, a message from Osama Bin Laden on "how to save the earth," and the
cover includes a quotation from Anwar Al-Awlaki, the American bom cleric who is believed to be
directly connected to the attempt to destroy an airplane over Detroit by Umar Farouk Abdulmutallab
on Christmas Day. (The director of the National Counterterrorism Center, Michael Leiter, made that
disclosure at a security fomm in Aspen, CO, Fox News reported.)
The table of contents teases an interview with the leader of AQAP who promises to "answer various
questions pertaining to the jihad in the Arabian Peninsula." It includes a feature about how to "make a
bomb in the kitchen of your mom."
AQAP's first effort to post the magazine to jihadist websites failed Wednesday, as many of the pages
were contaminated with a vims. (I half seriously believe that U.S. cyber warriors might have had a
hand in that little surprise.)
The U.S. is quite worried about Al Qaeda's new publishing ambitions, which mark a more sophisticated
effort to engage the English-language world and to recmit English-speaking Muslims tojoin the cause.
The copy was obtained from a private researcher. AQAP had advertised for days that the magazine
would appear with the interviews specified in the table of contents. It is possible, although not likely,
that the magazine is a fabrication, a production of a Westem intelligence agency that wants to
undermine Al Qaeda by eroding confidence in its production and distribution networks. The U.S. is

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Al Qaeda's First English Lajj^g^ge Magazine Is Here - Global - The A t j ^ ^ ^

Page 234021
of4

engaged in direct net-based warfare with jihadis; this sort of operation would not be too difficult to pull
off.
Since I am not completely certain that the clean PDF doesn't contain a hidden vims, I've elected not to
post it just yet.

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http://www.theatlantic.com/intemational/print/2010/06/al-qaedas-first-english-language-m...

1/10/2013

Al Qaeda's First English Laj^^ge Magazine Is Here - Global - The A t j ^ j j ^

I »

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Page 334022
of 4

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they call you to wihmt Wll
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w n e If T c f c n t g ea Jihld. tt b [lhad (hat gtvei
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pertih w t i h s u t l t . Our NsMry l i 1 tciOmony

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ta> U K I d i e w h c r r K mMlDni of M u d l m i
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Page 4 of 4

34023

bpnMHn^lheiEfbr^henyithMwhen
fBtfLOtvMBithitogh«thefnaitMCim*e
factag the u n r v * ttidiy tb d « Mlde
ym kmpke Mnmne tmardi nraelhing
preienMlan of Ulm ai followed t k
MfeigdievabAartf.yeuareiaiitr^tfwt
Jiotf orfdMiOuconccrnlortheununflA
lebdsfA^ WeWaocbl upon and cncoun^
unlesi they do whst you mt iMptrtng ihetn
k wwiiwht
chu> we tiy to touch upon our rcMfcn contrfawle by Mndti9 A c t
todo they would periih Sc ihe wwd fmtdh ill m i | « Issues whltegtvtngatfcnEtart to the vSdei.ujHiMJiUwstiggesdonitD la.
wiinsplraHonihKsaveia person end y # d a events unfolding fe^thefcabMnPcrlraiass
than uwvdswhM is goodfar« t e m . A ^
#*w#0«sN "nthe yewnd.jlhmd has been We a* 4 M h l ^ to « u M e i m tfttcndeawr
b Ihe wed used In the above mptbned
tkanmnOtdtnomaft md thu* Its revival and te gskt yati «nd us mwmd* tfie
uene. Accordfev K> ihts rmnlng bv dH coMoriieMlMml endeavor b of uiman
m^KmnfmtmOt^km^mmnltaman.

This article available online at:
http://www.theatlantic.com/intemational/archive/20io/o6/al-qaedas-first-english-languagemagazine-is-here/59006/
Copyright © 2013 by The Atlantic Monthly Group. All Rights Reserved.

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34024

UNITED STATESOF AMERICA
v^
Manning,BradleyE.
PFCUSArmy,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Supplement to Government Addendum to
Motion toTakeJudicial Notice dated
16November2012
Enclosure 2^
IlJanuary 2013

Al Qaeda English Magazine^lls for Terror Attacks in the U.S.


Page I34025
of 3

Al Qaeda English Magazine Calls for Terror Attacks in the U.S.
Introduction
Updated: November 4, 2010

The second issue of Al Qaeda's English-language magazine encourages terror attacks on U.S. soil and features
two Americans aligned with Al Qaeda in Yemen.

The media wing of Al Qaeda in the Arabian Peninsula (AQAP). Al Qaeda's affiliate in Yemen and Saudi Arabia,
released the second issue of Inspire via the intemet on October 11,2010. The October release of the publication
-the second installment of Al Qaeda's first-ever English-language magazine - coincides with the anniversary of
Al Qaeda's 2000 USS Cole bombing in Yemen that killed 17 American soldiers.
One of Inspire's featured stories, entitled "I Am Proud to be a Traitor to
America," is written by Samir Khan, an American blogger who distributed
terrorist propaganda material from the U.S. for several years before leaving
for Yemen in October 2009. Federal authorities have claimed that Khan is the
magazine's principal author, and the graphics, design and overall packaging
of /A7sp/re resemble those on Khan's various blogs and in Jihad Recollections,
the self-described "first English Jihad magazine" in which Khan was a
contributor.
"It didn't take a rocket scientist to figure out that I was Al Qaeda to the core,"
Khan writes about his years spent in the U.S. distributing terror propaganda.
He proceeds to deride American federal authorities for allowing him to persist
in spreading Al Qaeda's ideology and criticizes the U.S. government and its
military incursions in the Middle East and South Asia.

'>m^-."'S^--"^j

1r'

W 1 AM

r

PROUD

TO BE A

TRAITOR

TO AMERICA
iamif

Samir Khan's article inthe
issue of /n^iiB

khin

second

Khan then explains that he traveled to Yemen to "implant Islam all over the world"
\ without being confined within
the American legal system. According to Khan, fomenting "Islam's claim to power in the modern world" entails
fighting the U.S. and its allies, "I am acutely aware that body parts have to be torn apart, skulls have to be
crushed and blood has to be spilled," Khan writes. "I would think that it's about time Muslims came together to
tear down the obstacles. The most important of these obstacles today is obviously Amenca."

The 74-page magazine also features several statements from another Amencan who has ascended to the top of
the ranks of AQAP. In one article, Anwar al-Awlaki. an American-born Muslim cleric living in Yemen who
encourages American Muslims to attack non-Muslims and has been designated by the U.S. as a "key leader" of
AQAP, criticizes a group of Muslim scholars who previously convened in Turkey to challenge a fatwa that
justified jihad, "According to these scholars, we the Muslims are not allowed to terrorize the Israelis, or the
Americans, or the British." Al-Awlaki writes, "No, We do not agree with that... We will terrorize them and we will
do what we can to strip them of their safety and security as long as they do us the same."
In addition to original articles written for the magazine. Inspire also includes
excerpts from sermons and statements previously released by various Al
Qaeda leaders, including Osama bin Laden, Al Qaeda second-in-command
Ayman al-Zawahiri and American Al Qaeda spokesman Adam Gadahn. The
issue also features excerpts from a previously released statement by Humam
KHalil Abu Mulal al-Balawi (also known as Abu Dujanah al-Korasani), the
Jordanian physician who carried out a December 30, 2009, suicide bombing
at a U.S. military base in Afghanistan in which seven Americans were killed.

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Page2of3
34026

Also featured in ^nsp^^ is an interviewwithSufyanalAzdial-Shahri,AQAP's secondin-command,in which al
Shahri advises Muslims in the West to "either immigrate orfight Jihad in the West by individual Jihad or by
commi^nicating with their brothers in the lands of JihadBlmages of AOAP battles againstthe Yemeni military are
also displayed in the magazine.
The second issue of ^nsp^r^^ comes three months after AlQaeda released its inaugural issue,marking the first
time the international terrorist network publishedamagazine in English.Following its release, the Department of
Homeland Security stated that "the sophisticated, colloquial English-language magazine could appeal to certain
Western individuals and inspire them to conduct attacks in the United States in the future "
encouraging Terror Attacl^s in the U.S.
various articles throughout the second issue of ^nsp^^ caution followers in theUS and in other Western
countries against traveling abroad to join foreign terrorist organizations Instead, readers in the West are
encouraged to carry out terrorist attacks in their home countries.
"I strongly recommend all the brothers and sisters coming from the West to consider attacking the West in its
own backyard,"Mukhtar Hassan writes."The effect is much greater,it always embarrasses the enemy,and
these types of individual attacks are nearly impossible forthem to contain."
One section in ^nsp^re, entitled,"Open Source Jihad" and written byYahya Ibrahim,providesaresource manual
thatallows"Muslimstotrainathomeinsteadofriskingadangeroustravelabroad"andproposesseveralwaysto
wage"individualjihad"thatinflictsmasscasualtiesandeconomiclosses"Westronglyencourageourbrothers
to fight jihad on U.S. soil,"Ibrahim writes,"tokillasnake,strike its head."The article includesapicture ofthe
Chicagoskyline,apparentlyforeshadowingtheterror^againstChicagoareasynagoguesonOctober
29 AQAP claimed responsibility forthis attack on Novembers,2010
Throughoutthesection,lbrahimencouragessimpleanddirectmethodsof
killing in placeofelaborateplotsthatcanbestoppedinadvancebylaw
enforcementOnemethod Ibrahim suggests isto"useapickuptruckasa
mowing machine, not to mow grass but mow down the enemies of Allah"To
ensuremasscasualties, Ibrahim recommendstargetinganarrowlocation
with heavy pedestrian traffic, thereby giving bystanders little chance to run
awayandescapeHealsosuggestswelding steel bladestothefrontofthe
truck to pierce through pedestrians and carrying firearms "so that you may
use them to finish off your work if your vehicle gets grounded during the
attack"
lnanotherarticle,lbrahimsuggestsamethoddetailedintheinauguralissue
of ^^sp^^, which provided step by step instructions on making an explosive
deviceusing household ingredientssuchassugar,match heads, Christmas
lights, batteries andaclock Ibrahim also encourages followers with
advanceddegreesorspecializationsinmicrobiologyorchemistry-todevelop
aweapon of mass destruction,i.e.,an effective poison with the proper
method of delivery "

ItJspire encourages Westerneis to use
pickup trucks to "mow down the enemies
of Allah"

Another method encourages readers to carry out attacks using firearms. Ibrahim notes that such an attack,
similar to the November 2009 shooting at the Fort Hood Army base in Texas and the June 2009 shooting at the
military recruiting center in Arkansas, requires little preparation and is difficult for authorities to detect, Ibrahim
proposes that a "random hit at a crowded restaurant in Washington DC [sic] at lunch hour might end up knocking
out a few government employees. Targeting such employees is paramount and the location would also give the
operation additional media attention."
Suspected Fort Hood shooter Nidal Malik Hasan is again depicted as a hero in an inten/iew with Sufyan al-Azdi
al-Shahri, AQAP's second-in-command, who calls on Muslims in the West to follow in the footsteps of Hasan and
Umar Farouk Abdulmutallab, a Nigerian man who attempted to detonate a bomb on a transatlantic flight from
Amsterdam to Detroit on Christmas Day in 2009. "The operations of our brothers, Nidal Hassan [sic] and Umar
al-Farouk [sic] are great heroic acts," al-Shahri asserts, "so whoever may add himself to this great list should do

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34027

so and we ask Allah to grant them success."
Forthose who optto engage in terrorist activities in theUS,^r^s^^re provides several tactics that should be
employed to evade detection by law enforcement In particular,followers should be wary of informants and avoid
contactwith like-minded individuals, visiting extremist Web sites and storing any "suspicious" material
AntiSemitic^^^tremeAntilsraell^essages
AntiSemiticconspiracytheoriesandAIQaeda'sagendaofeliminatinglsraelarepropagatedthroughoutthe
second issue of ^nsp^Be.
In the first pages ofthe magazine, the editorwarnstheUS that AlQaeda in the Arabian Peninsula (AQAP) will
"not lay down their arms until they free this land from the tyrants and march on to Jerusalem That is when
AmericaanditsJewishmasterswouldrealizethetruedangerofAQAPBTheeditoralsonotesthegroup's
slogan: "Herewestart, and in Jerusalem we meet "
^^sp^B^^ also uses Helen Thomas's retirement asaWhite House columnist to
furtherpromulgateclaimsthat Israel andtheJewscontrolAmericaB'Ifalong
time journalist and reporter like HelenThomas was thrown out fortruthful
words on the Israeli occupation,"^^sp^ri^asks,"doesn't that hint to everyone
who's really in control ofAmerican"
Also featured in ^ns^^re are several statements from AlQaeda leaders
threatening the existence of Israel and urging readers to launch attacks
againsttheJewishstatelnonesuchstatement,OsamabinLadenaversthat
heandhisfollowerswillnotrecognize"anystatefortheJews"or"respectthe
internationalcharterswhichrecognizetheZionistentityonthesoilof
Palestine"lnstead,bin Laden endeavors to "liberate all of Palestine from the
river to the sea "

^ ^ ^ ^ propagates AlOaedaolaims
that Israel and the .lei^oontrolAmerioa

Americanborn radical clericAnwaralAwlaki also reiterates Al Qaeda's antilsrael and antiAmerican ideology in
the pages of ^nsp^r^^B'Israeli and American aggression cannot be met with pigeons and olive branches but must
be met with bullets and bombs,"alAwlakiwrites"lt is through the heroic acts ofthe Palestinian martyrs that
Israel hadforsakenitsdreamofagreatlsraelandretracted upon itselfbehindwallsandbarriers"

The Anti-Defamation League, founded in 1913, is the world's leading organization fighting anti-Semitism through programs
and services that counteract hatred, prejudice and bigotry.

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34028

UNITED STATES OF AMERICA
DEFENSE RESPONSE TO
GOVERNMENT SUPPLEMENT
ADDENDUM TO MOTION TO
TAKE JUDICIAL NOTICE
DATED 11 JANUARY 2013

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

15 January 2013

RELIEF SOUGHT
The Defense requests this Court deny, in part, the Govemment's request forjudicial
notice.
ARGUMENT
The Defense will address each of the Govemment's requests in tum.
a. Julian Assange was located in Iceland in February 2010 and working on the Icelandic
Modern Media Initiative.
The Government has failed to establish the relevance of this evidence and the Defense
maintains its relevance objection. Whether or not Julian Assange, specifically, was the recipient
of chats from PFC Manning does not make any fact of consequence more or less likely. The
Govemment's case is not strengthened with respect to any element of any specification by this
evidence. Quite simply, PFC Manning's guilt does not tum on whether or not he was chatting
with Julian Assange.
b. LTC Lee Packnett was quoted in a New York Times article, dated 18 March 2010.
The Defense maintains its relevance objection. As noted above, the Defense does not
believe the fact that PFC Manning allegedly had an internet chat with Mr. Assange has any
bearing on any element of any offense. Likewise, the fact that LTC Packnett was quoted in an
article published by the New York Times does not make any element of any offense more or less
likely. The Govemment has failed to articulate which element for which this information is
relevant and, as such, their motion forjudicial notice should be denied.
Additionally, the Govemment has failed to articulate a hearsay exception for the
requested evidence. On 18 October 2012 this Court ruled that a statements appearing in a
newspaper are admissible "only if the newspaper article within which the statements appear
qualify for a hearsay exception." See Appellate Exhibit 356 at 11. Here, the Govemment
requests judicial notice of hearsay; the date of a New York Times article. Absent an articulation
of a hearsay example for the newspaper article, the Govemment's request forjudicial notice
should be denied.

APPELLATE EXHIBIT
PAGE REFERENCED:
PAGE
OF
PAGES

34029

c. ANewYorker profile of Julian Assange, titled "No Secrets: Julian Assange'sMission for
TotalTransparency" was dated7June 2010.
The Defense maintains its relevance objection. The existence ofaNewYorker article
about Mr. Assange makes no fact ofconsequence more or less likely. Whether or not the
accused knew about this article does not strengthen the Govemment'scase as it relates to any
element. Again, the Govemment has failed to point out for which clement this evidence would
be relevanL As such, it is appropriate to deny the Govcmment'srequesL
Moreover, both the title and date ofthe NewYorkcr profile on Mr. Assange call fi:^r
hearsay. Gnl80ctober 2012 this Court ruled thatastatements appearing inancwspaper are
admissible "only if the newspaper article within which the statements appear qualify lora
hearsay exception."
Appellate Exhibit356atll. The Government has oflered no exception
for the proffered hearsay,and, as such, their request Ibr judicial notice should be denied.
d. WikiLeaks began releasing the alleged Department ofState diplomatic cables over the
weekend of27-28 November 2010.
The Defense does not object to the Court takingjudicial notice ofthis fact.
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 by the Department ofState.
Additionally,they are, in fact, enemies ofthe United States.
The Defense does not object to the Court takingjudicial notice that the State Department
designated Al-Qaeda, al-Qaeda in the Islamic Maghred and al-Qaeda in Iraq as terrorist
organizations.
The Defense does object to the Court takingjudicial notice ofthe State Department's
designation of al-Qaedainthe Arabian Peninsula as an enemy. The Government has alleged that
PPC Manning gave intelligence to the enemy beginning in November 2009. This designation
did not take place untill9January2010,which is afterthe alleged misconductinthis case
began. As such, it is not possible for the accused to have been on notice that al-Qaedainthe
Arabian Peninsula was an enemy at the time ofthe alleged misconducL Thus, the requested
evidence is not relevant and should not be judicially noticed.
f. Usama bin Laden ^UBL^isamember of alQaeda and an enemy ofthe United States.
The Defense does not object to this Cottrt taking judicial notice that Usama bin Laden
^^.^amember of al-Qaeda and an enemy ofthe United States. Tothe best of the Defense's
knowledge Usama bin Laden was killed in May2011.

g. Adam Gadahn isamember of al-Qaeda and an enemy ofthe United States.
The Defense does not object to the Court takingjudicial notice ofthese facts.

34030

h. "Inspire" isamagazine. It advocates violent jihad and promotes the ideology of alQaeda
in the Arabian Peninsula.
The Defense maintains its relevance objection. Whether or not Inspire magazine
encouraged readers to gather documents fromWikiLeaks does not make any element of any
specification more or less likely. The Govemment is not required, even tangentially,to prove
such and the Government has failed to identify the element fbr which such evidence would be
relevanL because this evidence docs not make any fact at issue more or less likely the evidence
is not relevant and should not be judicially noticed.
Addittonally,the Govemment'srequest calls fbr the Court to draw an Inference. On 30
August 2012 this Court held "Ij^udicial notice is not appropriate fbr infcrencesaparty hopes the
factfinderwlll drawfrom the fact(^s^judiclallynoticed"^^^^ Appellate Exhibit288 at4^^^^^
the Government has requested this Court look atamagazine and news reports about that
magazine and then draw an inference from the contents. The Govemment'srequest puts the
Courtinaposifiontojudiciallynotlce an opinion, rather thai^afacL
CONCLUSION
As indicated above, the Defense respectfttlly requests the Cot^dcny,mpart, the
Govert^ent'srequests for judicial notice.

JOSHUA J. TOOMAN
CPT, JA
Defense Counsel

I certify that I served or caused to be served a true copy of the above on MAJ Ashden
Fein, via electronic mail, on 15 January 2013.

>HUA J. T0OMAN
CPT, JA
Defense Counsel

34031

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITEDSTATES
NOTICE UNDER MRE 505(h)

V.

U.S. Army,

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





2

MANNING, Bradley E., PFC

3

14 January 2013


The defense provides the following notice under MRE 505(h):

1. The defense provides the following clarification regarding it notice with respect to

and . The
defense intends to discuss the evidence that they possessed and their activities that are
relevant to this case. If the testimony of the witness is related to the 29 November 2012
Declassi?cation Notice, then the defense only intends to discuss those matters that are
authorized. The defense intends to interview all on their general techniques, tactics,
and procedures for both classified and unclassi?ed evidence. Certain lines of
questioning can be easily imagined: (1) what was the evidence that you possessed (this
response will be limited by what is and is not approved), (2) how did you know it was
that (same limitation), (3) what did you do with this evidence, and (4) distinguish
between what happened here and standard procedure.



2. The defense wishes to further clarify its notice with respect to Mr. Adrian Lamo. The
defense intends to discuss fully the online conversations between Mr. Lamo and PFC
Manning. The defense will use the chat logs between the two from the relevant
wired.com article as opposed any classi?ed version. The defense will neither con?rm
nor deny any intelligence to Mr. Lamo. Rather, the defense will ask about a particular
item that was revealed and follow up with queries as to what, if anything, Mr. Lamo did
with that information.

3. The defense will use the information contained in BATES numbers 378148-378175
and 410623-410634 while interviewing witnesses #145-147. (The numbers were taken
from the 26 October 2012 Government Witness List.)



THOMAS F. HURLEY
MAJ, JA
Defense Counsel

ll 3

i

. . 34032

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
RULING: GOVERNMENT
MOTION TO PRECLUDE
MOTIVE EVIDENCE ON
MERITS
MANNING, Bradley E., PFC
U.S. Anny,
HHC, U.S. Anny Garrison
Joint Base Myer-Henderson Hall DATED: 16 January 2013
Fort Myer, Virginia 222]]

On 16 November 2012, the Government ?led a Motion to Exclude Motive Evidence during the
merits portion of the trial. On 30 November 2012 the Defense ?led a response opposing the motion.
After considering the pleadings, evidence presented, and argument of counsel, the Court ?nds and
concludes as follows:

Findings of Fact:

1. The accused is charged with one speci?cation of aiding the enemy in violation of Article 104, Uniform
Code of Military Justice (UCMJ), one speci?cation of disorders and neglects to the prejudice of good
order and discipline and service discrediting in violation of Article 134, UCMJ, eight speci?cations of
violations of 18 U.S.C. 793(e) and Article 134, UCMJ, ?ve speci?cations of violations of 18 U.S.C.
641 and Article 134, UCMJ, two speci?cations of violations of 18 U.S.C. l030(a)( 1) and Article 134,
UCMJ, and ?ve speci?cations of violating a lawful general regulation, in violation of Article 92, UCMJ,
The time period of the charged offenses is from on or about 1 November 2009 - on or about 27 May 2010.

2. The Government asserts evidence of motive is not relevant to any charged offense or to any cognizable
defense.

3. The Defense intends to introduce evidence of the accused?s motivation during the period of the
charged offenses. Defense intends to introduce the accused?s motivation through the testimony of Adrian
Lamo and Zachary Antolak.

4. The Defense, in its response, argues that evidence of the accused?s motive is relevant for two reasons:

(1) the elements of the charged offenses make the accused?s motive relevant; particularly the
element of knowledge in the speci?cation of Charge 1 (Aiding the Enemy) and speci?cations 4, 6, 8, and
12 of Charge 11 (Stealing, Purloining, or Knowingly Converting Records), and the element that the
accused wantonly published the information at issue in specification 1 of Charge 11.

(2) to rebut evidence of the accused?s intent presented by the Government via the testimony of
SPC ihrlea Showman.

5. During oral argument, the Defense asserted that evidence of the accused?s motive was also relevant to
the element of whether the accused had reason to believe that the infonnation he communicated could be
used to the injury of the United States or to the advantage of any foreign nation for the offenses charged

1

?470
- 7-
.. .


I

. . 34033

as violations of 18 U.S. C. Section 793(e), speci?cations Charge II and the
offenses charging a violation of 18 U.S. C. 1030(a)(1), specifications 13 and 14 of Charge II. The
Defense advised the Court of its intent to present evidence that the accused selected information that he
knew or believed could not be used to hann the United States and intended to present evidence to raise a
mistake of fact defense to this element in that the accused did not believe the information he
communicated could be used to the injury of the United States. The Defense further advised the Court of
its intent to use the damage assessments to corroborate the reasonableness of the accused?s belief.

6. The Government argues that the accused?s motivation is not relevant to the elements of ?knowledge?
or ?wanton publication? and that the element ?reason to believe the information could be used to the
injury of the United States or to the advantage of any foreign nation? is an objective element. As such,
the accused?s subjective knowledge or belief is irrelevant.

The Law:

1. MRE 401 de?nes ?Relevant Evidence?. Relevant evidence means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence.

2. MRE 402 provides that all relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States as applied to members of the anned forces, the code, these rules, this
Manual, or any Act of Congress applicable to members of the anned forces. Evidence which is not
relevant is not admissible.

3. Relevant evidence is necessary when it is not cumulative and when it would contribute to a party?s
presentation of the case in some positive way in a matter at issue.

4. MRE 403 provides that relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

5. There is a distinction in the law between motive and intent. Intent is a pcrson?s immediate goal while
motive is a person?s ultimate goal. U.S. v. Huet Vaughn, 43 M.J. 105 (C.A.A.F. 1995). As an example, a
person may steal food from a store to feed his family. His intent is to steal the food. He steals the food to
further his motive to feed his family. The fact that he has a noble motive to feed his family does not
negate his intent to steal the food. In a prosecution for larceny, the government would have to prove the
person?s intent to steal. The person?s motive to feed his family is relevant only to the extent it provides
circumstantial evidence of intent to steal or it presents a viable defense. See U.S. v. Diaz, 69 M.J. 127
(C.A.A.F. 2010); U.S. v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999); U.S. v. Huet Vaughn, 43 M.J. 105
(C.A.A.F. 1995).

6. Similarly, in this case, the accused?s motive is relevant only to the extent it provides circumstantial
evidence of the accused?s intent or it presents a viable defense to any of the charged offenses.

7. The mens rea requirement for 18 U.S.C. 793(e) does not require that the accused act in bad faith or
with ill intent. U.S. v. Diaz, 69 M.J. 127 (C.A.A.F. 2010); U.S. v. Kiriakou, 2012 WL 4903319 (E.D. Va.
Oct. 16). Under the same rationale, the mens rea requirement for 18 U.S.C. 1030(a)(1) also does not
require that the accused act in bad faith or with ill intent.

34034

8. RCM 9l6(j) governs the defense of Ignorance or Mistake of Fact. The rule provides that it is a
defense to an offense that the accused held, as a result of ignorance or mistake, an incorrect belief of the
true nature of the circumstances such that, if the circumstances were as the accused believed them, the
accused would not be guilty of the offense. If the ignorance or mistake goes to an element requiring
premeditation, speci?c intent, willfulness, or knowledge of a particular fact, the ignorance or mistake
need only have existed in the mind of the accused. If the ignorance or mistake goes to any other element
requiring only general intent or knowledge, the ignorance or mistake must have existed in the mind of the
accused and must have been reasonable under all the circumstances. However, if the accused?s
knowledge or intent is immaterial as to an element, then ignorance or mistake is not a defense.

Conclusions of Law:

1. The accused?s motive during the period of the charged offenses, on or about 1 November 2009 on or
about 27 April 2010:

a. is relevant to the element of knowledge, particularly whether the accused knew he was dealing
with the enemy, for the speci?cation of Charge I (Aiding the Enemy). This case is distinguished from
prior Article 104 cases declining to allow evidence of noble motive or good faith of the accused because
the accused?s bad faith is not an element of Article 104 and because Article 104 is a general intent offense
not requiring a speci?c intent by the accused to aid the enemy. See US. v. Batchelor, 22 C.M.R. 144
(C.M.A. 1956). The Court agrees, however, in this case, evidence of the accused?s motive is relevant to
prove whether the accused knew or didn?t know he was dealing with the enemy.

b. is not relevant to whether the accused knew he was stealing, purloining, or knowingly
converting property belonging to the United States, for speci?cations Charge H.

c. is not relevant to whether the accused ?wantonly? published information for speci?cation 1 of
Charge II.

d. is not relevant to whether the accused had reason to believe information he communicated
could be used to the injury of the United States or to the advantage of any foreign nation for speci?cations
2, 3, 5, 7, 9,11,13,14, and 15 ofCharge II.

2. If the Government offers statements made by the accused to SPC ihrlea Showman to prove his state
of mind, the accused?s motive or state of mind during the period of the charged offenses is relevant to
rebut that evidence.

3. In the Court?s 19 October 2012 Ruling: Government Motion to Preclude Reference to Actual Harm or
Damage on the Merits, the Court deferred ruling on whether lack of actual harm or damage assists in
presenting a viable defense. The Ruling stated ?In order for the Court to appropriately rule on whether
actual damage corroborates the reasonableness of the accused?s belief, there must be some evidence the
accused knew the information could not be used to the injury of the United States or to the advantage or
any foreign nation.? The Court now has a suf?cient foundation to rule on this issue and believes it would
bene?t the parties to have clarity on what evidence is relevant and potentially admissible.

4. For the speci?cations charging violations of 18 U.S.C. 793(e) and 1030(a)(l) the element that the
accused had ?reason to believe the information he communicated could be used to the injury of the
United States or to the advantage of any foreign nation? is an objective element evaluated on facts

3

. . 34035

actually known by the accused. It does not require the Government to prove the accused knew the
information he communicated could be used to the injury of the United States or to the advantage of any
foreign nation. The Government must prove that the accused had reason to believe that the information
he communicated could be used to the injury of the United States or to the advantage of any foreign
nation. Either the accused had reason to believe or he didn?t. A subjective conclusion by the accused that
he did not have reason to believe the information he communicated could be used to the injury of the
United States or to the advantage or any foreign nation is immaterial to this element. It is also a mistaken
conclusion not a mistake of fact. The accused may certainly present evidence of factors he knew
regarding the information communicated as evidence that he did not have reason to believe the
information could be used to the injury of the United States or to the advantage of any foreign nation.

5. Upon request of the Defense, the Court has considered US. v. Miller, 874 F.2d 125 5 (9th Cir. 1989).
Miller is distinguishable from this case in that the defendant in Miller was charged with violating 18
U.S.C. 793 with a mens rea that the accused acted with intent or reason to believe the information is
to be used to the injury of the United States. It is also distinguishable because the case does not involve
the affirmative defense of mistake of fact as de?ned in RCM 9l6(j). The District Court in Miller gave the
following instruction to the jury ?You may consider whether the defendant acted in good faith and
reasonably believed that communication or delivery of the document speci?ed in Count Two was within
the scope of his authorized duties as an FBI Agent and actually intended to communicate and deliver that
classi?ed document to Svetlana Ogorodnikova as part of his of?cial duties as an FBI agent to the extent
that it may bear on whether he had reason to believe the document was to be used to the injury of the
United States or the advantage or a foreign nation.? The Ninth Circuit opined that this instruction
re?ected a misunderstanding of the nature of the accused?s defense. The appellate court opined it would
have been more appropriate to ?instruct the jury to the effect that Miller?s reasonable belief, if any, that
his actions would have met with subsequent approval from his FBI superiors could be taken into account
in deciding whether he had reason to believe that his actions would harm the United States or help the
Soviets.? Miller is consistent with the reasoning of this Court. Any mistaken belief the accused had
about the nature of the information communicated is relevant to whether he did or did not have reason to
believe the information could be used to the injury of the United States or the advantage of any foreign
nation. The Ninth Circuit in Miller further held that Miller was not entitled to an instruction that he could
not be convicted if his actions were intended to bene?t the United States even if he acted with a mistaken,
but reasonable belief as to the extent of his authority. This is also consistent with the reasoning of this
Court.

6. Evidence that the accused selected only particular information to communicate and factors he knew
about that information to select certain information over other information is relevant to the element
whether the accused had reason to believe the information could be used to the injury of the United States
or to the advantage of any foreign nation for the speci?cations charging violations of 18 U.S.C.

793 and 1030(a)(l). The accused?s subjective conclusion that the information he selected could not
be used to the injury of the United States or to the advantage of any foreign nation is not a mistake of fact
and does not raise a mistake of fact defense.

7. Even if the accused?s mistaken conclusion that he did not have reason to believe that the
communicated information could be used to the injury of the United States or to the advantage of any
foreign nation raised a viable mistake of fact defense for the element of whether the accused had reason to
believe the evidence he communicated could be used to the injury of the United States or to the advantage
of any foreign nation, the damage assessments would not be relevant to corroborate the reasonableness of
the accused?s belief. The relevant inquiry would be facts known by the accused at or before the charged
offenses. The damage assessments were created or compiled after the alleged offenses were committed.

4



What, if any, future damage occurred after disclosure was not knowable by the accused during the time
period of the charged offenses. Moreover, mitigation measures were implemented by affected agencies to
prevent or minimize actual damage. The accused could not have known what, if any, mitigation measures
would be taken by United States government agencies and what, if any, impact those measures had on
actual damage caused. Thus, the damage assessments would not be relevant to corroborate the
reasonableness of the accused?s belief under MRE 401. Even if relevant, the probative value of the
damage assessments is substantially outweighed by the danger of confusion of the issues under MRE 403.

RULIN G: The Government Motion to Exclude Motive Evidence on the Merits is GRANTED IN
PART as set forth above. Evidence of the accused?s motive is relevant to the knowledge element of the
speci?cation of Charge I (Aiding the Enemy). It is also relevant to rebut evidence of the accused?s state
of mind if offered by the Government through the testimony of SPC ihrlea Showman. The accused?s
motive is not relevant for any other purpose. Evidence of the accused?s selection of particular
information to communicate and factors considered by the accused in making such selections is not
motive evidence and is not excluded by this Ruling. The accused?s subjective conclusion that he did not
have reason to believe the information communicated could be used to the injury of the United States or
the advantage or any foreign nation does not raise a mistake of fact defense under RCM 916(j). To the
extent any language in the Court?s 19 October 2012 ruling is inconsistent with this ruling, this ruling is
controlling.

So ORDERED this 16"? day of January 2013.



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

34037

1/16/2013

Relevant Facts Roadmap
Legend
Investigation (25 May 10 - Present Day)
Discovery (25 May 10 - Present Day)
RCM 706 Board (11 Jul 10 - 22 Apr 11)
Security Measures (28 Jul 10 - Present Day)
Classification Reviews and Approval for
Disclosure (25 May 10 - Present Day)
OPLAN BRAVO (11 May 11 - Present Day)
Motions Practice (3 Feb 12 - Present Day)
"Periods of Apparent Inactivity"

Legend
"Chronology" = the Stipulated Speedy Trial
Chronology-AE 383
If a citation only references "Encl
then that is
enclosure to the Government Response
(ex: AE 339)
For emails, enclosure number and email number
are provided (ex: Encl 1, #0001)
For responses to interrogatories, the enclosure and
appellate exhibit are provided along with the
answer number (ex: Encl 1 to AE 449, #1)

APPELLATE EXHIBIT Wl(
PACE LifERENCED:
PAGE
OF
PAGES

34038

1/16/2013

Macro Timeline
Originul ChargeN Transfer to MDW
Preferred (5 Jul 10)
(2 Aug 10)

..^P.

7v:iiA

'^mk

Additional Charge*
Preferred (1 Mar 11)

Referral (3 Feb 12)

i V ' i . . . i i i i i A.-^tr.

n^KWfm^'

Classificiition
it
iiiiU Ai)|)nHiils

^

Investigation

34039

1/16/2013

Macro Timeline
Original Charges Transfer to MDW
Preferred (5 Jul 10)
(2 Aug 10)

Additional Charges
Prvferred (1 Mar 11)

ReTerrai (3 Feb 12)

. # , . . . , . . . , . . , , , ^ , . , „ . , . , „ . . , . . „ . , , . . . , . . . , . . . , . . . . . , , . * . . ,

I

WL Release

|

Discovery of SD
Card

C'Lissil'ication Rv\ \
iind Aitproviih

Overview (Investigation)
Joint Criminal Investigation (CID/DSS/FBI)
WikiLeaks Releases
Twenty-Two Forensic Reports
Three Military Intelligence Investigations
Three Administrative Investigations
-USF-I
-USD-C
— Secretary of the Army

34040

1/16/2013

Investigation

25 May 10

Command placed the accused on 27 May 10
modified unit watch without access to a
weapon and under guard by escorts
(Encl 5)

CID retrieved swom statements from
multiple persons (£MC/ 9)

Adrian Lamo reported that he was
online chatting with the accused, and
that the accused admitted to disclosing
thousands of classified documents to
WikiLeaks (£/jc/57, 2)

CID executed a search warrant, seizing
several items, including computers
accessed by the accused (Encl 5)

28 May 10
29 May 10

At this time, "it [was] unknown how
much information [the accused] 30 May
collected or how the information [was]
stored" (Encl 5)

10

CID collected digital media and other
evidence in Iraq
(e.g.. Enclosures 18 andl9 toAE 16)

USD-CAR 380-5 investigation
concluded (AE 407, #444)

Investigation

Original Charges Preferred
(Chronology)

WikiLeaks releases approximately
76,000 out ofthe 90,000 records from
the CIDNE-Afghanistan database in
coordination with media outlets
(Enclosure 3 to AE 339, pg 2, In 14-46)
FBI participated in the joint
investigation (Encl 1, #0003)
CCIU searched Shipping Containers
from the accused's unit to identify any
digital media the accused may have 15 Sep 10
used while deployed
(Enclosure 16 toAE 16)

28 Jul 10

DIA was directed to establish the
Information Review Task Force
(Encl 4 to AE XLIX)

23 AUR 10

USF-I AR 15-6 investigation concluded
(AE407, #444)

15 Sep 10

CCIU completed unclassified forensic
report #1 (AE407, #44)

20 Sep 10

CID submitted preservation request to30 Sep 10
2nQM\-H(Encl24toAE 16)
22 Oct
WikiLeaks released approximately
400,000 records from the CIDNE-lraq
database
(Enclosure 3 to AE 339, pg 2, In 14-46)

WikiLeaks began releasing purported
Department of State cables
(Enclosure 3 to AE 339, pg 2, In 14-46)

Command ordered the accused into
pretrial confinement (Encl 6)

10

2 Nov 10

CCIU completed unclassified forensic
report #2 (AE 407. #44)
CCIU recovered encrypted SD Card
from accused's aunt's house containing
complete CIDNE-A and CIDNE-I
databases (Encl 1. #0121) (Encl 26
ReportJDCard pg 12) (AE 407. #59)
Secretary of the Army AR 15-6
investigation concluded (AE 407, #444)

34041

1/16/2013

Investigation

Additional Charges Preferred
(Chronology)

24 Apr 11
WikiLeaks began releasing purported
GTMO detainee assessment briefs
(Enclosure 3 to AE 339, pg 2, In 14-46)

Trial Counsel notified defense that CID
found an additional classified
document on the accused's computer
(Encl 81, #0562)

CCIU completed unclassified forensic
report #3 (AE 407, #44)
2AuR 11

WikiLeaks released more than 250,00020 Aus 11
purported DOS cables (Enclosure 3 to
AE339,pg2, In 14-46)

CCIU completed classified forensic
reports #6-21 (AE407, #44)
Article 32 Investigation began
(Encl 59)

Trial Counsel explained to defense that
multiple media devices contained
classified info and that all the
information is inextricably
commingled (£«c/5/, #0672)

22 Sep 11

CCIU completed unclassified forensic
reports #4-5 (AE 407, #44)

20 Oct 11

CCIU completed classified forensic
report #22 (AE 407, #44)

22 Sep 11

16 Dec 11

Article 32 Investigation concluded
(Encl 59)

Overview (Investigation)
Joint Criminal Investigation (CID/DSS/FBI)
WikiLeaks Releases
Twenty-Two Forensic Reports
Three Military Intelligence Investigations
Three Administrative Investigations
-USF-I
-USD-C
- Secretary of the Army

34042

1/16/2013

Discovery

Macro Timeline
Original Charges Transfer to MDW
Preferred (5 Jul 10)
{2 Aug 10)

Additional Charges
Preferred (1 Mar I I )

Refcrral(3Febl2)

Production of Cl

Preservation
Request by CID

(lassifiiiition
and Appn

Govt reaches
out to 50+ orgs

34043

1/16/2013

Overview (Discovery)
Pre-Referral
-

Inter- and Intra-agency Meetings
Prudential Search Requests {End 53, 70, 73)
Preservation Requests (End 52)
Fourteen Defense Discovery Requests {End 68;
Chronology)
- Two PowerPoint Presentations of Case on the Merits
and Sentencing to the Defense {End 3-5 of End 57)
- 42 Discovery Productions {End 18)
• 33 Productions of Unclassified Discovery {End 18)
• 9 Productions of Classified Discovery {End 18)

Overview (Discovery) cont.
Post-Referral
- Inter- and Intra-agency Meetings
• 60+ Govemment Organizations Involved

- Defense Discovery Requests
- 42 Discovery Productions
• 18 Productions of Unclassified Discovery {End 18)
• 24 Productions of Classified Discovery (Encl 18)

- Transparency in Classified Setting
• 526,000+ pages of discovery produced
• 437,000+ pages of classified discovery produced
• Few Redactions - less than 1% (approximately 3,435 of 526,366
pages) ofdiscovery in the defense's possession contains redactions
IAW MRE 505(g)(2) or RCM 701(g)

- Giglio Searches and Disclosures
- RCM 914 Disclosures

34044

1/16/2013

Inter- and Intra-Agency Meetings

Inter- and intra-asencv
Coordination

Jun 10

Trial counsel in Iraq began
coordinating with DOS and DOD forEarly Jul 10
classification reviews (Encl 10)
Trial counsel at MDW began
Early Aus 10
discussions with FBI, DOS, DIA, and
OGA#2
(Encl 57, pg 10-21; Encl 3 to AE 449)
Trial counsel began discussions with 29 Dec 10
DISA and later leamed of CENTAUR
logs (Encl 57, pg 18)
Trial counselfirstmet with ONCIX to
discuss any records relating to the
accused (Encl 57, pg 20)

Mid-Jul 10

6 Oct 10

13 Jan 11

Trial counsel began meeting with DSS
(Encl 57, pg 13)
Trial counsel met with CCIU and DOJ
to discuss way forward (Encl 10)

Trial counsel began meeting with
OGA#I (End 57, pg 16)
Trial counsel began communications
with ODNI and later leamed ODNI
maintained Intelink logs
(Encl 57, pg 17)

2 Feb 11
20 Auf! 11

Trial counsel began coordinating with19 Oct 11
DHS (Encl 57, pg 22)
16 Nov 11

Trial counsel requested any damage
assessments from those government 14 Feb 12
organizations that may have assisted
ONCIX
^07, #289-291)

WikiLeaks released more than 250,000
purported DOS cables
(Enclosure 3 to AE 339, pg 2, In 14-46)
Trial counsel began coordinating with
DEA(Encl 57, pg 23)

IM

8

34045

1/16/2013

Search and/or Preservation
Requests

Search and/or Preservation
Requests
Trial counsel sends Prudential Search25 May
Requests to OGA#I, DOD, DOS,
0GA#2, ODNI, and ONCIX
(Ends 53-54)

30 Sep 10
11

6 Jun 11

Trial counsel sends Prudential Search
Requests to DIA, DOS, OGA#2, and
0DNI(£«c/5i)
Trial counsel received draft tasking
letter relating to Prudential Search
Request from DOD for review before
being distributed to sub-organizations
(End 1, #0553)

Trial counsel sends Prudential Search
Requests to additional organizations
(End 53)

Trial counsel sends Prudential Search
Requests to DOD (Encl 53)

Trial counsel sends Prudential Search
Requests to FBI, DOJ, and DISA
(End 53)
16 Aug 11

21 Sep 11

Trial counsel sends Requests to Locate
and Preserve Evidence to multiple
organizations in response to defense
preservation request (Encl 52)

CID submitted preservation request to
2/lOMm(End24toAE 16)

Trial counsel sends Prudential Search
Requests to DOJ (Encl 53)
Defense submitted preservation request
for hard drives in theater
(End 9 to AEM)
Trial counsel sends Requests to Review
any Damage Assessments to multiple
organizations (Encl 56)
Trial counsel sends Prudential Search
Requests to multiple organizations
(End 53)

34046

1/16/2013

Discovery Requests

Pre-Referral Discovery
Requests

29 Oct 10

Defense submitted discovery request
(Chronology)

Defense submitted discovery request
(Chronology)
Defense submitted discovery request
(Chronology)

Defense submitted discovery request
(Chronology)

Defense submitted request to preserve
evidence (Chronology)

Defense submitted discovery request
(Chronology)

17 Feb 11

Defense submitted request to compel
discovery (Chronology)

Trial counsel responded to defense
motion to compel discovery to Article
32 10 (Chronology)
I 13 May 11

Defense requested multiple items, to
include forensic images of all media
involved (Enc/Sy, #0559)

Defense submitted discovery request
(Chronology)

25 May 11

I 21 Sep 11

•= Prosecution Discovery Production

Defense submitted preservation request
(End 9 to AE 16)

10

34047

1/16/2013

Pre-Referral Discovery
Requests
I 13 Oct 11

Based on defense request, trial counsel
presented its case-in-chief and
sentencing case to the defense
(EMc/j.jqrf«c/J7)

Defense submitted discovery request
(Chronology)
Defense submitted discovery request
(Chronology)

Defense submitted discovery request
(Chronology)

Based on defense request, trial counsel
presented its case-in-chief and
sentencing case to the accused
(Enc/j-J()/-g»c/j7)

Defense submitted request for
production of evidence (Encl 74)

Defense submitted request to compel
production of evidence (Encl 74)

Defense submitted discovery request
(Chronology)

— = Prosecution Discovery Production

Post-Referral Discovery
Requests via Email
Trial counsel responded to defense
request for clarification on the
discovery standard for grandjury
material (End 81, #1694)

' 9 Apr 12
10 Apr 12

•21 May 12

Trial counsel responded to defense
inquiry on discovery standard
(End 81, at #1842)

21 May 12

Trial counsel responded to defense that
it has produced all damage assessments
and that there are no unclassified or
sanitized versions to provide
(End 81, #1918)
Defense submitted discovery request
(Chronology; End 81, #1938)

26Jun 12

Trial counsel responded to defense
request for clarification
(End 81, #1940)
Prosecution Discovery Production

Defense requested clarification on what
discovery standard the prosecution
applied in its review of grandjury
material (£nc/5/, fl/#/(592)
Defense inquired what standard was
applied to redact grand jury testimony
and whether the material was
discoverable under Bradv
(End 81. #1841)
Defense requested that the prosecution
prepare and produce an unclassified
version of all classified damage
assessments (Encl 81, #1910)
Defense requested that the govemment
organizations that prepared a classified
damage assessment produce an
unclassified version of their damage
assessment (Ew/g/, #/920)
Defense requested clarification from
the prosecution with respect to the
Court's discovery ruling
(End 81, #1937, 1939)

11

34048

1/16/2013

Post-Referral Discovery
Requests via Ennail

Defense requested CYBERCOM
records (End 81, #1941)

Trial counsel submitted Prudential
Search Request to C/BERCOM
(End 73)

Trial counsel responded to discovery
request dated 26 Jun 12 (Chronology)

Defense inquired what discovery
standard the prosecution applied to the
Quantico emails (Encl 81, #2043)
Trial counsel updated defense on its
7 Aus 12 ,
request for the government
organizations that prepared a classified
damage assessment to produce an
unclassified version of their damage
assessment (End 81, #2085)
Trial counsel responded to defense
inquiry relating to Giglio
(End 81, #2113)
Defense requested clarification of
discovery produced on 14 Sep 12
(End 81, #2258)

Trial coimsel responded to defense
request for clarification
(End 81, #2046)

12 AUK 12

13 Aug 12
13 Aug 12

Defense inquired what trial counsel
viewed as discoverable under Giglio
(End 81, #2105)
Defense requested copy of the trial
counsel's Giglio request for each
govemment witness (End 81, #2114)

15 Sep 12!
15 Sep 12

• = Prosecution Discovery Production

Trial counsel responded to defense's
request for clarification of produced
discovery (fw/g/, #2259)

Production

12

34049

1/16/2013

Discovery Productions
Discovery production (Encl 18)
Discovery production (Encl 18)
11 Nov 10

Discovery production (Encl 18)
3 Jan 11

Discovery production (Encl 18)

14 Jan 11

Discovery production (Encl 18)
Discovery production (Encl 18)
Discovery production (Encl 18)

Discovery production (Encl 18)
7 Apr 11

Discovery production (End 18)

9Apr 11

Discovery production (Encl 18)

'^^P'"

12 Apr II

12 May 11

Discovery production (Encl 18)
Discovery production (Encl 18)
Discovery production (End 18)

Discovery production (Encl 18)
Discovery production (Encl 18)
Discovery production (Encl 18)

25 Jul 11
2 Aug 11

Discovery production (End 18)

Discovery Productions
Discovery production (End 18)

11 Aug 11

Discovery production (End 18)

19 Sep 11

Discovery production (Encl 18)

12 Oct 11

-^^^—
I Sep 11

3 Oct 11

Discovery production (Encl 18)

Discovery production (Encl 18)
Discovery production (Encl 18)
Discovery production (End 18)
Discovery production (Encl 18)
Discovery production (Encl 18)

Discovery production (Encl 18)
Discovery production (Encl 18)

Discovery production (Encl 18)
Discovery production (End 18)

Discovery production (End 18)
Discovery producfion (Encl 18)
Discovery production (Encl 18)
Discovery production (Encl 18)

Discovery production (Encl 18)

13

34050

1/16/2013

Discovery Productions
Discovery production (End 18)

Discovery production (Encl 18)

Court issued Protective Order (AE 32)

Discovery production (Encl 18)
12 Apr 12

Discovery production (Encl 18)

15 May 12

Discovery production and available for
inspection (Encl 18)

18 May 12
21 May 12

Discovery production (Encl 18)

Discovery production (Encl 18)

| ^•'•^P^
Discovery production (Encl 18)
Discovery production (Encl 18)

24 May 12
29 May 12

Discovery production (Encl 18)

Discovery production (Encl 18)
Discovery available for inspection
(End 18)

Discovery production (End 18)

Discovery production (End 18)
Discovery production (Encl 18)
Discovery production (Encl 18)

Discovery Productions
Discovery production (Encl 18)
Discovery production (End 18)
2 Aug 12

Discovery production and available for
inspection (Encl 18)

3 Aug 12
6 Aug 12

Discovery production (Encl 18)

HAug 12

Discovery production (Encl 18)

21 Aug 12

Discovery production (Encl 18)

27 Aug 12

10 Aug 12

Discovery production (End 18)

16 Aug 12

Discovery production and available for
inspection (Encl 18)

23 Aug 12

Discovery available for inspection
(End 18)

14 Sep 12
15 Sep 12
19 Sep 12

Discovery production (Encl 18)

Discovery production (End 18)

7 Aug 12

Discovery production (End 18)

Discovery producfion (Encl 18)

Discovery production (Encl 18)

Discovery production and available for
inspection (End 18)
Discovery production (End 18)

20 Sep 12
28 Sep 12

Discovery production (Encl 18)

14

34051

1/16/2013

additional Discovery
15 Jul 12

Trial counsel disclosed Giglio material15 Oct 12
to the defense (AE 346)

Trial counsel requested Giglio material
fi-om govemment organizations
(End to AE 346)

In addition to searching its own files
and the results of the Prudential Search
Requests, trial counsel requested
Giglio material from govemment
organizations (Encl toAE 346)

Trial counsel disclosed RCM 914
material to the defense (AE 345)
Trial counsel disclosed Giglio material
to the defense (AE 446)

Trial counsel disclosed RCM 914
material to the defense (AE 447)

12 Dec 12

Pre-Referral Efforts to Expedite
Discovery
Trial counsel submitted Prudential Search
Requests pre-referral to gather any potentially
discoverable material as soon as possible
Trial counsel submitted preservation requests
for potentially discoverable material in theater,
pre-referral, to gather any such material as
soon as possible
Two presentations to the defense of case on the
merits and sentencing

15

34052

1/16/2013

Post-Referral Efforts to Expedite
Discovery
Disclosure ofRCM 914 Material
- RCM 914 requires disclosure "after a witness other
than the accused has testified" and "on motion of a
party who did not call the witness"
— Trial counsel disclosed RCM 914 material before
the witnesses testified and absent a defense motion

Full disclosure of classified information
caused limited MRE 505(g) litigation

Recap (Discovery)
Pre-Referral
- Interagency Meetings
- Prudential Search Requests {End 53, 70, 73)
- Preservation Requests {End 52)
- Fourteen Defense Discovery Requests {End 68;
Chronology)
- Two PowerPoint Presentations of Case on the Merits
and Sentencing to the Defense {End 3-5 of End 57)
- 42 Discovery Productions {End 18)
• 33 Productions of Unclassified Discovery (End 18)
• 9 Productions of Classified Discovery {End 18)

16

34053

1/16/2013

Recap (Discovery) cont.
Post-Referral
- Inter- and intra-agency Meetings
• 60+ Govemment Organizations Involved

- Defense Discovery Requests
- 42 Discovery Productions
• 18 Productions of Unclassified Discovery (End 18)
• 24 Productions of Classified Discovery (Encl 18)

- Transparency in Classified Setting
• 526,000+ pages of discovery produced
• 437,000+ pages of classified discovery produced
• Few Redacfions - less than 1% (approximately 3,435 of 526,366 pages) of
discovery in the defense's possession contains redactions IAW MRE 505(g)(2)
or RCM 701(g)

- Giglio Searches and Disclosures
- RCM 914 Disclosures

RCM 706 Board

17

34054

1/16/2013

Macro Timeline
Original Charges Transfer lo MDW
Preferred (5 Jul 10)
(2 Aug 10)

Additional Charges
Preferred (1 M a r l l )

RefeiTal(3Feb 12)

PCR Concludes

Search for
Provider In 12

RCM 706
Concludes

Classirivaliiin KoU
iinj

als

Overview (RCM 706)
Defense-Requested
Search for Facility and Board Members
Preliminary Classification Review
Security Clearances for Board Members
RCM 706 Board Execution

18

34055

1/16/2013

RCM 706 Board
(11 Jul 10 - 17 Sep 10)

Defense requested delay of Article 32
for RCM 706 board (End 11)

Article 32 10 denied defense request
for delay (Chronology)

Trial counsel contacted USD-C
Division Psychiatrist for assistance
locafing a provider to conduct RCM
706 board (Encl 33, pg 2, para. 7)

Defense requested delay of Article 32
for RCM 706 board (End 11)

SPCMCA approved defense's request
for a delay (Encl 12)

Trial counsel contacted USF-I Deputy
Surgeon for assistance locating a
provider for sanity board
(End 33, pg 2, para. 9-13)
Trial counsel contacted Mannheim
Area Confinement Facility for
assistance transferring the accused
(End 33, pg 3, para. 13)
SPCMCA ordered RCM 706 board
(End 34)

2 Aug 10

5 Aug 10
11 Aug 10

SPCMCA approved defense's request 25 Aug 10
for delay of Artide 32 investigation,
and SPCMCA appointed expert
consultant in forensic psychiatry for the
defense on 12 Oct 10 (Chronology)

Defense notified trial counsel that the
accused would not divulge dassified
information during RCM 706 board
(End 81, #0015)

12 Aug 10

Article 32 10 recommended delay of
Article 32 (Encl 27)

25 Aug 10

Defense requested delay of Article 32
until forensic psychiatrist appointed to
defense team (End 11)

SPCMCA approved defense's request 12 Aug 10
for delay of Article 32 investigation
(Chronology)

Defense notified trial counsel that the
accused would need to divulge TS-SCI
(End 11)

Jurisdiction transferred to MDW
(Chronology)

3 Aug 10

RCM 706 Board
(11 Jul 10 - 17 Sep 10)
Defense requested delay of Article 32
for RCM 706 board (End 11)

Trial counsel contacted Third
Army/USARCENT about RCM 706
board (Encl 33)

26 Aug 10

Defense requested delay of Artide 32
until procedures adopted to safeguard
any classified information (Encl 11)

26 Aug 10
17 Sep 10

SPCMCA ordered Preliminary
Classification Review (Encl 40)

19

34056

1/16/2013

RCM 706 Board
(17 Sep 10 -13 Dec 10)
ISSeplO

SPCMCA ordered Superseding
Preliminary Classification Review
(End 42)

Defense response to PCR (Chronology)

22 Sep 10
28 Sep 10

SPCMCA appointed second security
expert based on defense request
(Chronology)
21 Oct 10-

Defense security experts interviewed
27 Oct 10
the accused for the Preliminary
Classification Review (End 81, #0120)
10 Nov 10

Trial counsel emailed defense security
19 Nov 10
expert the Security Classification
Guide for their preliminary
classification review (Encl 81, #0183)

RCM 706 Board
(13 Dec 10-22 Apr 11)

Defense requested discovery for PCR
(e.g., the accused's training records.
Security Classification Guide, etc)
(End 81, #0120; End 47)
SPCMCA issued Supplemental
Guidance for Preliminary
Classification Review (End 48)
Preliminary Classification Review
concluded (Encl 49)

13 Dec 103 Feb 11

SPCMCA ordered RCM 706 board to
resume (Encl 29)

Trial counsel obtained TS-SCI security
clearances and read-ons for prosecution
team, defense team, RCM 706 board
members, and Article 32 IO
Defense notified the board that it views
the suspense as "aspirational" and that
the board "should feel free to take the
time necessary to conduct a thorough
and complete examination of [the
accused]" and that "undoubtedly, any
request for an extension of time by the
board would be granted"
(End 81, #0328)

RCM 706 board notified trial counsel
and defense that it planned to begin its
tesfing and interview of the accused on
16 Feb 11 (End 81, #0335)

Defense requested to meet with the
accused before the RCM 706 board
interview (£«c/57, #0341)

Trial counsel provided RCM 706 board
with additional charge sheet
(End 81, #0381)
Defense suggested that he meet the
accused on a Saturday to accommodate
the safety/transportation concerns
(Encl 81, #0410)

Defense requested second security
expert to assist with Preliminary
Classification Review and proper
storage container (End 41)

SMarll
Saturday

TMarll
Monday

Defense requested to meet with the
accused on 11 Mar 11 (Encl 81, #0392)
Defense requested to meet with the
accused on 25-26 Mar 11 because of
the increase in cost of transportation
(End 81, #0395)

20

34057

1/16/2013

RCM 706 Board
(13 Dec 10 - 22 A p r 11)
14 Mar 11

RCM 706 board requested extension
(End 30)

SPCMCA approved RCM 706 board's
extension request (Encl 31)

26 Mar 11
Saturday

RCM 706 board interviewed the
accused (Encl 30)

9 Apr 11
Saturday

IS Apr 11

Accused met with defense counsel at
SCIF for pre-RCM 706 interview
meeting, based on defense request
(End 81, #0428)

RCM 706 board requested extension
(End 30)

SPCMCA approved RCM 706 board's 15 Apr 11
extension (End 31)

22 Apr 11

RCM 706 board concluded (End 32)

Recap (RCM 706)
Defense Requests
Search for Facility and Board Members
Preliminary Classification Review
Security Clearances for Board Members
RCM 706 Board Execution

21

34058

1/16/2013

security measures

Macro Timeline
Original Charges Transfer to MDW
Preferred (5 Jul 10)
(2 Aug 10)

I

Additional Ciiargcs
Preferred (1 Marll)

Referral (3 Feb 12)

706 Board and Defense read-on

i—
CliissilKutioii Ri-\ il

Protective Order

Additional POs

iinniiiils

22

34059

1/16/2013

Overview (Security Measures)
22 Protective Orders
Preliminary Classification Review
Security Clearances
- RCM 706 board members
- Defense Team and Experts
- 13 Defense Expert Requests

Security Measures

GCMCA issued protective order
(End 38)

Defense notified trial counsel that the
accused would not divulge classified
informafion during RCM 706 board
(End 81, #0015)

SAug 10
26 Aug 10

Defense requested security clearances 2 Sep 10
for defense team and access for
accused (Encl 36)
Preliminary Classification Review

17 Sep 10

Defense notified trial counsel that the
accused would need to divulge TS-SCI
to the RCM 706 board (End 11)

SPCMCA issued Protective Order for
Classified Information (Encl 37)

17 Sep 1013 Dec 10

Trial counsel formally requested
security clearances for prosecution
team, defense team (including forensic
psychiatry expert), RCM 706 board
members, and Article 32 10 (Encl 50)

Trial counsel notified defense that all
RCM 706 board members had been
read-on to the required compartments
and provided update on defense
counsel's status (Encl 81, #0308)
SPCMCA issued Protective Orders for
Law Enforcement Sensitive
Information and Secretary of the Army
AR 15-6 Investigation (AE 407, #46)

Civilian defense counsel read-on in
Charlottesville, VA (End 1, at 0248)
^'y-'^"^^^

18 federal protective orders entered

23

34060

1/16/2013

Security for Defense Team
Expert in Computer Forensics
- Requested 13 Jul 10; Appointed 23 Jul 10 (Chronology)
Fxpert in Forensic Psychiatry
- Requested 25 Aug 10; Appointed 12 Oct 10 (Chronology)
Defense Security Expert
- Appointed 17 Sep 10 (Chronology)
Second Security Expert
- Requested 28 Sep 10; Appointed 12 Oct 10 (Chronology)
Expert in Information Assurance
- Requested 28 Oct 10; Appointed 14 Jan 11 (Chronology)
National Security Investigator
- Requested 29 Nov 10; Denied 17 Dec 10 (Chronology)

Security for Defense Team (cont.)
Replacement Expert in Forensic Psychiatry
- Requested 12 Jan 11; Appointed 14 Jan 11 (Encl 81, #0246, 0253)
Expert in Neuropsychology
- Requested 18 Feb 11; Appointed 5 Apr 11 (Chronology)
Mitigation Expert
- Requested 8 Mar 11; Denied 5 Apr 11 (Chronology)
Replacement Expert in Neuropsychology
- Requested 20 Apr 11; Appointed 4 May 11 (Chronology)
Expert in Computer Forensics and Additional Funding
- Requested 6 Jul 11 (Encl 81, #0609)
Expert in Psychiatry
- Requested 3 Aug 11; Appointed 10 Aug 11 (Encl 80)
Expert in Computer Forensics
- Requested 9 Aug 11; Appointed 10 Aug 11 (Encl 80)

24

34061

1/16/2013

Recap(Security Measures)
22 Protective Orders
Preliminary Classification Review
Securitydearances
- R C M 706 board members
-DefenseTeam and Experts
— 13 Defense Expert Requests

classitication Reviews and^pproval
to Disclose Evidence and Discovery

25

34062

1/16/2013

Macro Timeline
Original Charges Transfer to MDW
Preferred (5 Jul 10)
(2 Aug 10)

Additional Charges
Preferred (I Marll)

Referral (3 Feb 12)

Classification Rc\ ic«s
iind A|i|inn als

Beginning Coordination

Formal Requests
(Discovery and Class Reviews)

Overview
Classification Reviews
- Charged Documents (28 Jul 10 - 2 Dec 11)
- Evidence (28 Jul 10 - Present Day)
Approval to Disclose Evidence and Discovery
- Charged Documents
- Unclassified CID Case File
- Digital Media
- CCIU Forensic Reports
- Military Investigations
- Grand Jury Material
- Defense MRE 505(h) Notice

26

34063

1/16/2013

Classification Reviews

Classification Reviews
Early Jul 10

Accused and jurisdiction transferred to28 Jul 10
2 Aug 10
MDW (End 13-16)

Trial counsel at MDW begins
coordinating with DOD for
classification reviews (AE 407, #39)

Trial counsel begins communicating
with DOS about dassification reviews 10 Aug 10
(End 3 to AE 449, #13, AE 407, #5)
26 A u g 10

Trial counsel begins communicating
with OGA# I about classification
review
(End 5 to AE 449, #13; AE 407, #5)

Defense requests results of
classification reviews (Encl 22)
Trial counsel received classification
review for Specification 2, Charge II
(AE407 #39)

Trial counsel begins communicating
directly with CENTCOM about
dassification reviews
(End I to AE 449, #13, AE 407, #5)
Trial counsel coordinated with OTJAG
to discuss SOUTHCOM dassification
review
(End 4 to AE 449, #47,AE407, #5)

Trial counsel in Iraq began
coordinating with DOS and DOD for
classification reviews (Encl 10)

Early-Nov 10

Trial counsel requested that DOS do an
initial sort of purported cables to
determine which ones, if any, were
classified (End 3 to AE 449, #15)

16 Nov 10

Trial counsel requested DOD conduct a
dassification review of several
documents (End 20)

27

34064

1/16/2013

Trial counsel requested DOS conduct
an "informal" classification review to
understand what a full and formal
classification review would require
based on the volume
(End 3 to AE 449, #16)

Classification Reviews
Early-Dec 10

Trial counsel received incomplete
CENTCOM classification review
(End 1 to AE 449, #81; AE 407, #43)
Trial counsel formalized its request that
DOS, CENTCOM, SOUTHCOM,
INSCOM, ODNI, CYBERCOM,
OGA#2, DISA, and 0GA#1 conduct
classification reviews
(End 20; AE 407 #10)

Trial counsel begins coordinating with
INSCOM about classification review
(End 2toAE 449, #9, AE 407, #5)

Trial counsel submitted Updated
Requests for Classification Review to
DOD, CENTCOM, DOS,
SOUTHCOM, OGA#I and ODNI
(End 20-21)
Trial counsel submitted Updated
Requests for Classification Review to
INSCOM, CENTCOM, OGA#I, DOS,
SOUTHCOM, ODNI (End 20)

Trial counsel submitted Updated
Requests for Classification Review to
OGA#I (End 21)

6 May 11

Trial counsel submitted Request for
Classification Review to DOS and
SOUTHCOM (End 20)

4 Aug 11

Trial counsel received INSCOM
classification review
(End 2 10 AE 449, #80)

7 Sep 11
9 Sep 11

Trial counsel begins coordinating with
OGA# 1 about conducting a second
dassification review
(End 5 to AE 449, #69; AE 407, #5)

IS.Sep 11

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"trial counsel repeatedly communicated either
directly or indirectly with INSCOM on
numerous occasions"
(End 2 to AE 449, #8) (INSCOM)
"trial counsel has routinely communicated with
representatives of INSCOM throughout the
entire matter"
(End 2 to AE 449, #/2) (INSCOM)

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ii:;; ;:| :MI It",,, , , ! , : • • . , j f' . y i ' , t v :

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"Trial counsel needed the reviews completed as
quickly as practical"
(End 2loAE 449, #24) (INSCOM)

111 or: Hi:-Vl.i;',v I,.::
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28

34065

1/16/2013

Classification Reviews
16 Sep 11

Trial counsel submitted Updated
Requests for Classification Review to
CENTCOM, DOS, and SOUTHCOM
(End 20)
Trial counsel submitted Request for
Classification Review to CENTCOM
(End 20)

13 Oct 11

Trial counsel submitted Updated
Requests for Classification Review to
ODNI (End 20)

18 Oct 11

Trial counsel received CENTCOM
dassification review
(End 1 to AE 449, #81)

Trial counsel received DOS
classification review
(End 3 to AE 449, #81)

31 Oct 11

Trial counsel received SOUTHCOM
classification review
(End 4 to AE 449, #81)

Trial counsel received OGA#l
classification review
(End 5 to AE 449, #81)

2necll

Trial counsel received OGA#I
dassification review
(End 5 to AE 449, #81)

I6r)ecll

Article 32 investigation began
(End 59)

Trial counsel received ODNI
classification review (Encl 51)

ClA

Trial counsel requested dassification
review from OGA# I (Encl 20)

"trial counsel frequently requested updates on the classification review process"
(End 1 to AE 449. #48) (CENTCOM)

T
"clearly, the trial counsel was interested in complefing the dassification reviews as
expeditiously as possible"
(End 1 to AE 449, #70) (CENTCOM)
"the Department and trial counsel have spoken hundreds, if not thousands, of times"
(End 3 to AE 449, #8) (DOS)
I.UK

"trial counsel asked for updates on the status of the classification review numerous times
during the review process"
(End 3 to AE 449, #47) (DOS)
"The Department communicated regularly with trial counsel regarding the status ofthe
classification review"
(Encl 3toAE 449, #54) (DOS)
The organization has been communicating with trial counsel "on a routine basis fi'om October
2010 to the present date"
(End 5 to AE 449, #9) (OGA)
Updates to the classification review process were given to OTJAG, on behalf of trial counsel
(AE 449, #49; AE 407, #7) (SOUTHCOM)

29

34066

1/16/2013

approvals for Disclosure of
Evidence and Discovery

Approval to Disclose Evidence
and Discovery
Additional Charges Preferred
(Chronology)

Q
26 Feb 11
1 Mar 11

Trial counsel submitted written request
to DOD, DOS, ODNI, OGA#I and
0GA#2 for approval to disclose

Trial counsel requested to review
SecArmy investigation, completed 14
Feb II (^£^07, #444)

classified information

(Encl

23-24)

Trial counsel began reviewing
SecArmy investigation, completed 14
Feb II (AE407, #444)

Trial counsel submitted written request
to DIA and DISA for approval to
disclose classified information
(End 23-24)

Trial counsel received DISA approval
to disclose classified info (End 25)

Trial counsel received DOS and
OGA#I approval to disclose classified
Mo (End 25)
Trial counsel received DIA approval to
disclose dassified information
(End 25)

Trial counsel coordinated meeting to
discuss the next steps for receiving
approval to disclose classified
information with various OCAs
(End 1, #0305)

Trial counsel received initial DOD
approval to disclose certain classified
information (End 1, #0387)
7 Apr 11
April

Trial counsel leamed unclassified CID
casefilemay contain classified
information (AE 339, pg 21)

30

34067

1/16/2013

Approval to Disclose Evidence
and Discovery
Trial counsel requests authority to
disclose Sec Army investigation
(End 1, #0457)

g
Apr -Jun 11
2 May 11

Trial counsel received approval to
disclose SecArmy 15-6 investigation, 17 Jun 11
subject to a protective order
(AE407, #444)

13 Jun 11

Trial counsel submitted updated
written request to OGA# I for approval11 Aug 11
to disclose dassified information
(End 23)
CCIU completed 16 classified forensic22 Sep 11
reports (End 26; AE 407, #59)

4 Aug 11

17 Sep 11

ODNI approved disclosure of classified
evidence (AE 407, #59)

Approval to Disclose Evidence
and Discovery

28 Oct 11

Govemment Motion under MRE
505(g)(2) (AE 156)

21 May 12

Equity holders approved disclosure of
classified information contained within
unclassified CID casefileto defense;
CID regulation required classification
review prior to release of CID file
(AE 407, #46; End 72)

CCIU completed I classified forensic
report (End 26)
27 Oct 11

Trial counsel received properly marked
documents originating from
unclassified CID casefilefrom those
equity holders (AE 407, #46)
Trial counsel produced CID forensic
reports (Encl 18)

Trial counsel produced classified
information contained within CID case
file (End 18)
Trial counsel reviewed the transcripts12 Apr 12
of grandjury testimony (AE 264 at 15)

Trial counsel submitted updated written
requests to FBI, DOD, and DIA for
approval to disclose classified
infonnation (Encl 23)

CID approved release of forensic
reports after confirming nothing was
classified pursuant to CID's original
classification authority (AE 407, #59)

Trial counsel requested approval from
DOD to disclose forensic reports
26 Oct II
(AE407, #59; End 23)

Trial counsel produced grandjury
material (Encl 18)

Trial counsel was notified that
unclassified CID casefilecontained
potentially classified information
(End 2, #0085)
Trial counsel submitted written request
to FBI and updated requests to DOD,
DIA, and OGA#I for approval to
disclose classified material (Encl 23-4)

Trial counsel produced SecArmy
investigation after defense
acknowledged receipt of SPCMCA's
Protective Order (Encl 18)

All OCAs approved disclosure of the
22 forensic reports, consisting of
classified information from
approximately 8 terabytes of digital
media in this case (AE 407, #59)

Army 02 office reviewed
approximately 900 pages of CID case
file for any equity holders of classified
information
(AE407, #45; Mr Haggett testimony)

Court's Ruling: Defense Mofion to
Compel Discovery (AE 36)
18 May 12

Govemment Motions under MRE
505(g)(2) (AE 132-133)
Govemment Motion under MRE
505(g)(2) (XE /^/)
Court's Ruling: Defense Motion to
Compel Discovery #2 (AE 147)

31

34068

1/16/2013

Approval to DiscloseEvidence
and Discovery

Defense MRE 505(h) Notice for
Charged Documents (AE 185)

Trial counsel responded to Defense
MRE 505(h) Notice for Charged
Documents (AE 204)
Govemment Motions under MRE
505(g)(2) (X£ 265-265)
Trial counsel responded to Defense
Notice of Intent to Disclose Classified
Information (AE 262)

Defense Addendum to MRE 505(h)
Notice (AE 196)
3 Aug 12

Defense Notice under MRE 505(h)
(AE372)

Defense MRE 505(h) Final Notice
(AE466)

Defense Notice ofintent to Disclose
Classified Information (AE 261)

14 Sep 12

Govemment Motions under MRE
505(g)(2) (AE 301, 322-324)

26 Oct 12

Govemment Motion under MRE
505(gX2)(/lgj
22 Aug 12

Trial counsel submitted filing outlining
requirements of MRE 505(h) notice
(AE357)

Trial counsel responded to Defense
MRE 505(h) Notice (AE 454)

17 Aug 12

14 Dec 12

Defense MRE 505(h) Notice (AE 450)

21 Dec 12
14 Jan 13

22 Apr 13

Defense MRE 505(h) Notice (AE 468)
Trial counsel response to Defense
MRE 505(h) Final Notice (AE 466)

Efforts to Expedite Approval Process
Trial counsel's request for approval to disclose
classified evidence to the defense included any
derivative use of the classified information,
which sped up the process to disclose the
forensic reports

32

34069

1/16/2013

Recap
Classification Reviews
-ChargedDocuments(^8JullO^^Decll)
-Evidence (^8 JullO^Present Day)
approval to Disclose Evidence and Discovery
-Charged Documents
-Unclassilied CID Case Pile
-Digital Media
-CClUEorensic Reports
-Military Investigations
-Crand Jury Material
-DelenseMRE 505(h)notice

0PEA^8RA^0

33

34070

1/16/2013

Macro Timeline
Original Charges Transfer to MDW
Preferred (5 Jul 10)
(Z Aug 10)

Additional C h a r ^
Preferred ( I M a r l l )

Referral (3 Fell 12)

( LnsiUciition Ki'vic
and A|ipi oval!»

OPLAN BRAVO
Necessity
- SPCMCA's workforce (COL Coffman's testimony)
- Media attention (COL Coffman's testimony)
Phase I : Coordination and Planning
- Concept of Operations began 11 May 11 {End 58, pg 3)
- Bi-weekly Operations Planning Group teleconferences starting
1 Jun 11 {End 58, pg 3)
- Security
- Travel
- Public Affairs
- Resourcing/Contracting
- IT Support
- Installation Management Organizations

34

34071

1/16/2013

OPLAN BRAVO
• Phase II-V: Execution
- Triggered by SPCMCA ordering Article 32 to
restart (16 Nov 11) {End 12)
— Coordination across Eight Sections within MDW,
HQDA, and other commands {End 58, pg 5-7)
— Phase II: Transfer of accused for Article 32
hearing
- Phase III: Conduct Article 32 hearing
— Phase IV: Transfer of Accused
- Phase V: Branch Plans (including trial)

Efforts to Expedite OPLAN BRAVO
OPLAN BRAVO discussions began May 2011
Trial counsel identified the necessity of
OPLAN BRAVO, to include necessity to
provide a Supporting Command, early on

35

34072

1/16/2013

Macro Timeline
Original Charges Transferto MDW
Preferred (5 Jul 10)
(2 Aug 10)

Additional Charges
Preferred (1 M a r l l )

Referral (3 Feb 12)

( liivsilitiition Ro ifws
iiiul Apijinn uls

.......^

36

34073

1/16/2013

MOTIONS PRACTICE
450+Appellate Exhibits
8 Article 39(a) Sessions
— More than 30 days in Article 39(a) Sessions
— More than 30,000 pages in motions practiceunclassified and classified
— 27 Witnesses
— More than 80 hours of testimony

"Periods of Apparent Inactivity"

37

34074

1/16/2013

"Apparent Inactivity"
31 May 10-5 JullO
13 Jul 10-30 Jul 10
23 Apr 11 - 12 May 11
13 May 11-17 Jun 11
18Jun 11-5 Jul 11
6 Jul 11-26 Jul 11
26 Jul 11 - 29 Aug 11
30 Aug 11-28 Sepll
29 Sep 11-27 Oct 11
28 Oct 11 - 15 Nov 11
17Novll-15Decll
22 Dec 11 - 3 Jan 12
12 Jan 12-2 Feb 12

31 Mav 10-5 Jul 10
31 May 10 - accused received by confinement facility {End 6)
11 Jun 10 - trial counsel received CID Report of Investigation {End
8)
Jun 10 - trial counsel began meeting with DSS {End 57, pg 13)
23 Jun 10 - Iraq CID investigation transferred to CCIU {End 9)
30 Jun 10 - trial counsel contacted USF-I SJA to discuss plan for
moving the accused to a long-term confinement facility {End 33,
para 3)
1 Jul 10 - Iraq trial counsel contacted medical facilities overseas to
begin coordination for RCM 706 board and to identily a provider
{End 33, para 4)
4 Jul 10 - trial counsel notified that CG, Third Army/USARCENT
ordered that the accused be transferred from TFCF {End 33, para 5)
5 Jul 10 - original charges preferred {Chronology)

38

34075

1/16/2013

13 Jul 10-30 Jul 10
11-15 Jul 10 - Trial counsel requested assistance in locating
a provider for RCM 706 {End 33)
Mid-July 10 - Trial counsel met with DOJ and CID to
discuss way forward {End 10)
27 Jul 10 - Trial counsel requested assistance obtaining a
provider to conduct the RCM 706 board {End 33)
28 Jul 10 - Trial Counsel requested assistance from DOD
for classification reviews {End 10)
28 Jul - 2 Aug 10 - Accused and jurisdiction for courtmartial transferred to MDW {Ends 13-16)
30 Jul 10 - Trial counsel notified of status of classification
review for Specification 2 of Charge II {End 10)

23 Apr 11-12 Mav 11
23 Apr 11 - trial counsel notified defense it was identifying a
neuropsychologist in vicinity of Fort Leavenworth {End 81, #0494)
25 Apr 11 - trial counsel updated SPCMCA and requested delay of Article
32 {End 11)

29 Apr 11 - SPCMCA approved request for delay {End 12)
2 May 11 - trial counsel requests authority to disclose Sec Army 15-6 to
defense {End 1, #0457)
5 May 11 - trial counsel had phone meeting with defense to discuss
progress and updates {End 81, #0509)
6 May 11 - trial counsel requests authority to disclose classified
information {End 24)
9 May 11 - meeting with DOD to discuss Prudential Search Request {End
1, #0453)
12 May 11 - discovery production (USF-I 15-6 investigation) {End 18)
23 Emails with Defense, including 2 emails with the Article 32 10,
spanning 14 duty days {End 81, #0494-0517)

39

34076

1/16/2013

13 Mav 11-17 Jun 11
13 May 11 - defense discovery request (Encl 68)
16 May 11 - correspondence with defense relating to newly assigned counsel (Encl 81, #0520-1)
18 May 11 - trial counsel corresponded with DSS to discuss reviewing its records (Encl 1, #0469)
22 May 11 - trial counsel updated SPCMCA and requested delay of Article 32 (Encl 11)
25 May 11 - trial counsel submitted Prudential Search Requests to multiple organizations (Encl 53);
defense requested forensic images of all media involved (Encl 81, #0539)
26 May 11 - trial counsel responded to defense request for forensic images of all media involved
(End 81, #0540); SPCMCA approved request for delay (End 12)
31 May 11 - trial counsel corresponded with OTJAG to retrieve material responsive to Prudential
Search Request (End 1, #0482)
3 Jun 11 - trial counsel contacted DOS for update on classification review (Encl 1, #0484)
6 Jim 11 - trial counsel submitted Prudential Search Requests (End 53); trial counsel submitted
updated Prudential Search Requests (Encl 53)
9 Jun 11 - discovery production (Encl 18); trial counsel updated defense on outstanding issues (End
81, #0550)
13 Jun II - trial counsel met with ONCIX to discuss Prudential Search Request (End 57)
14 Jim 11 - trial counsel submitted Prudential Search Request to organizations (End 53)
17 Jun 11 - Accounting Memorandum and Command Update (Encl 28)
43 Defense Emails, induding 5 emails with the Article 32 10, spanning 24 duty days (Encl 81,
#0518-0561)

18 Jun 11-5 Jul 11
19 Jun 11 - trial counsel notified defense that it received approval to
disclose classified information and that CID found an additional classified
document on the accused's computer {End 81, #0562)
22 Jun 11 — trial counsel provided defense two protective orders for
unclassified discovery and provided updates on paralegal support {End 81,
#0579)
23 Jun 11 - trial counsel requested authority from FBI, DOD, DIA and
OGA#l to disclose information {Ends 23-4)
27 Jun 11 - trial counsel submitted Prudential Search Requests to
additional organizations {End 53)
27 Jun 11 - trial counsel updated SPCMCA and requested delay of Article
32 {End 11)
30 Jun 11 - discovery production (8,430 pages) {End 18)
5 Jul 11 - SPCMCA approved request for delay {End 12)
44 Defense Emails, including 3 emails with the Article 3210, spanning 10
duty days {End 81, #0562-0606)

40

34077

1/16/2013

6 Jul 11-26 Jul 11
13 Jul 11 - trial counsel updated SPCMCA and SPCMCA issued
Accounting Memorandum {End 28)
18 Jul 11 - defense requested clarification on why multiple
rotective orders are necessary, and acknowledged updates provided
y trial counsel {End 81, #0622)
18 Jul 11 - trial counsel responded to defense's inquiry regarding
the multiple protective orders {End 81, #0623)
21 Jul 11 - trial counsel received draft tasking letter relating to
Prudential Search Request from DOD (End 1, #0553)
22 Jul 11 - trial counsel updated SPCMCA and requested delay of
Article 32 {End 11)
25 Jul 11 - discovery production (3,019 pages) {End 18)
26 Jul 11 - SPCMCA approved request for delay {End 12)
40 Defense Emails, spanning 15 duty days {End 81, #0607-0647)

E

27 Jul 11-29 Aug 11
28 Jul 11 - trial counsel submitted updated request for classificafion reviews (Encl 20)
1 Aug 11 - trial counsel notified defense on additional classified information found on the accused's
personal computer (Encl 81, #0670)
2 Aug 11 - trial counsel explained to defense that multiple media devices contained classified info
and that all the information is inextricably commingled {End 81, #0672); discovery production (Encl
18)
3 Aug 11 - defense expert request (Encl 80; Encl 1, #0579)
4 Aug 11 - trial counsel requested approval to disclose charged documents to defense (End 23)
9 Aug 11 - defense expert request (Encl 80); discovery production (6,003 pages) (Encl 18)
10 Aug 11 - Accounting Memorandum (Encl 28)
11 Aug 11 - trial counsel requested authority to disclose OGA# 1 information (Encl 24); discovery
production (2058 pages) (Encl 18)
15 Aug 11 - trial counsel requested approval to disclose FBI casefile(Encl 17)
16 Aug 11 - trial counsel submitted Prudential Search Request (End 53)
22 Aug 11 - trial counsel updated defense on multiple issues, including status of expert security
clearances and travel (Encl 81, #0788)
25 Aug 11 - trial counsel requested delay of Article 32 (Encl 11)
29 Aug 11 - SPCMCA approved request for delay (End 12)
167 Defense Emails, induding 2 emails with the Artide 32 10, spanning 24 duty days (Encl 81,
#0648-0815)

41

34078

1/16/2013

30 Aug 11-28 Sep 11
31 Aug 11 - trial counsel responded to defense concems regarding experts (Encl 81, #0818)
1 Sep 11 - discovery production (437 pages) (Encl 18)
1 Sep 11 - trial counsel requested update on DOD Prudential Search Request (Encl 1, #0638);
trial counsel submitted updated request for classification reviews (End 20-21)
8 Sep 11 - trial counsel updated defense on status of getting defense three laptops for viewing
of classified information (End 81, #0826)
15 Sep II - Accounting Memorandum (Encl 28)
16 Sep 11 - trial counsel provided defense a memorandum outlining the specialized computer
equipment being provided to the defense to review classified information (Encl 81, #0841)
19 Sep 11 - discovery production (77 pages) (Encl 18)
21 Sep 11 - defense submitted preservation request (Chronology)
22 Sep 11 - trial counsel met with ONCIX to get update on damage assessment (Encl 57,
page 33); CCIU completed numerous forensic reports (Encl 26)
26 Sep 11 - trial counsel requested delay of Article 32 (End 11)
28 Sep 11 - SPCMCA approved request for delay (End 12)
61 Defense Emails, including 2 emails with the Article 3210, spanning 20 duty days (End
81, #0816-0877)

29 Sep 11-27 Oct 11
• 30 Sep 11 - defense requested supplies (End 81, #0887)
• 3 Oct 11 - discovery production (12,158 pages) (End 18); trial counsel receivedfinalversion offorensic
reports (End 1, #0672)
• 4-6 Oct 11 - trial counsel submitted preservation requests based on defense request (End 52)
• 6 Oct 11 - trial counsel submitted updated request for classification reviews (Encl 20-21); trial counsel
requested damage assessments (End 56)
• 6 Oct 11 - trial counsel explained to defense that the purpose of its presentation to the defense of its casein-chief was to "orient you to the facts of the case, the layout of the reports, and give a brief overview of
the prosecution's case" "to speed up the pre-trial process and minimize any future delays" (End 81, #08970898)
• 11 Oct 11 - trial counsel requested contact information for each agency contacted by ONCIX (Encl 57)
• 12 Oct 11 - discovery production (280 pages) (Encl 18)
• 13 Oct 11 - defense discovery request (Encl 68)
• 14 Oct 11 - Accounting Memorandum and Command Update(£«c/ 28)
• 20 Oct 11 - discovery production (492 pages) (Encl 18)
• 25 Oct 11 - trial counsel submitted Prudential Search Request (End 70); trial counsel requested delay of
Article 32 (End 11); trial counsel requested approval to disclose IRTF report (End 56)
• 26 Oct 11 - trial counsel requested approval to disclose all outstanding DOD classified info to the defense
(End 23)
• 27 Oct 11 - SPCMCA approved request for delay (Encl 12); trial counsel notified defense that equipment
for handling dassified information is available for pick-up (Encl 81, #0932)
• 62 Defense Emails, including I email with the Artide 32 10, spanning 21 duty days (End 81, #0878-0940)

42

34079

1/16/2013

28 Oct 11-15 Nov 11
4 Nov 11 - discovery production (forensic reports) (329,056 pages)
{End 18)
8 Nov 11 - trial counsel disclosed CENTCOM, 0GA#1, DOS, and
CYBERCOM classification reviews to defense {End 18)
8 Nov 11 - trial counsel presented to the defense a 327-slide
PowerPoint presentation of its case during merits and presentencing
phase {End 57)
9 Nov 11 - defense requested second meeting for prosecution to
brief its case-in-chief to the accused {End 81, #0974)
15 Nov 11 - defense discovery request {End 68)
70 Defense Emails, including 8 emails with the Article 32 10,
spanning 13 duty days {End 81, #0941-1011)

17Novll-15Decll
17 Nov 11 - discovery production (5,631 pages) (SOUTHCOM classification
review) {End 18)
18 Nov 11 - trial counsel presented a 258-slide PowerPoint presentation of its case
during merits and presentencing phase to Mr. Coombs and the accused (End 57)
22 Nov 11 - defense submitted request for production of evidence {End 74)
23 Nov 11 - discovery production (7,408 pages) {End 18)
1 Dec 11 - discovery production (18,015 pages) (Enc/18)
1 Dec 11 - defense submitted request to compel production of evidence (End 74)
2 Dec 11 - trial counsel disclosed 0GA#1 classification review to defense {End
IS)
6-9 Dec 11 - discovery production (2,782 pages) {End 18)
9 Dec 11 - trial counsel responded to defense questions regarding logistics
conceming the Article 32 investigation {End 81, #1217)
14 Dec 11 - defense requested assistance from trial counsel to provide physical
control over the defense trailer during the Article 32 investigation between 2200
and 0800 {End 81, #1267)
254 Defense Emails, including 120 emails with the Article 32 10, spanning 19 duty
days {End 81, #1029-1283)

43

34080

1/16/2013

22 Dec 11-3 Jan 12
27 Dec 11 - trial counsel notified court reporter that it would ensure
defense and Article 32 Investigating Officer receive versions of
errata sheets for classified sessions {End 81, #1299)
2 Jan 12 - trial counsel requested meeting to discuss Prudential
Search Request with DOD, DIA, FBI {End 1, #0810-0812)
3 Jan 12 - trial counsel sent Article 32 Investigating Officer the
unclassified portion of the hearing's summarized transcript (End 81,
#1300)
3 Jan 12 - trial counsel requested Article 32 Investigating Officer
exclude any period of time that he did not work on report, to which
the defense did not object {End 81, #1300)
3 Jan 12 - Accounting Memorandum {End 28)
4 Defense Emails, spanning 5 duty days {End 81, #1297-1300)

12 Jan 12-2 Feb 12
11 Jan 12 - Article 32 Investigating Officer excluded periods of delay under RCM 707(c), to
which the defense did not object (End 60)
12 Jan 12 - discovery production (87 pages, including ODNI classification review) (End 18)
16 Jan 12 - defense submitted deposition request {End 81, #1318)
18 Jan 12 - trial counsel notified defense of SPCMCA's transmittal of case to GCMCA with
recommendation for a general courts-martial (End 81, #1325)
20 Jan 12 - defense discovery request (End 68)
20 Jan 12 - discovery production (82 pages) (Encl 18)
23 Jan 12 - defense submitted deposition request (End 81, #1342)
26 Jan 12 - defense requested additional funding for expert (Encl 81, #1354)
27 Jan 12 - discovery production (496 pages) (Encl 18); trial counsel responded to
outstanding defense discovery requests (Encl 69); defense requested clarification on trial
counsel's responses to discovery requests (Encl 81, #1367)
30 Jan 12 - trial counsel responded to defense's request for clarification on discovery
responses (£«c/57, #1371)
2 Feb 12 - trial counsel requested update from OTJAG on Prudential Search Request (End 1,
#0865)
3 Feb 12 - Referral of Charges {Charge Sheet)
77 Defense Emails, spanning 16 duty days (Encl 81, #1307-1384)

44

34081

1/16/2013

Conclusion
Investigation (25 May 10 - Present Day)
Discovery (25 May 10 - Present Day)
RCM 706 Board (11 Jul 10 - 22 A p r i l )
Security Measures (28 Jul 10 - Present Day)
Classification Reviews and Approval for
Disclosure (25 May 10 - Present Day)
OPLAN BRAVO (11 May 11 - Present Day)
Motions Practice (3 Feb 12 - Present Day)
"Periods of Apparent Inactivity"

Macro Timeline
Original Charges Transfer to MDW
Preferred (S Jul 10)
(2 Aug 10)

Additional Charges
Preferred (1 M a r l l )

Referral {3 Feb 12)

.^i^^ll^^
^ 1 ^ ^ ^

^ 1 ^ ^ ^ ^ ^ ^

^^^I^H^l^l^i^A
^ ^ ^ ^ ^ ^ ^

^ ^ ^ ^

^1^1^^^^^^^^^^^^

^ 1 ^ ^

45

34082

UNITED STATES OF AMERICA
RULING: JUDICIAL
NOTICE MOTIONS
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

16 January 2013

Government Request for Judicial Notice:
1. On 16 November 2012, the Government requested the Court takejudicial notice of the
following as adjudicative facts:
(1) Army Field Manual 2-0 "Intelligence"
(2) Army Field Manual 2-19.4 "Brigade Combat Team Intelligence Operations"
(3) Army Field Manual 2-22.2 "Counterintelligence"
(4) Army Field Manual 2-22.3 "Human Intelligence Collector Operations"
(5) Army Soldier's Manual and Trainer's Guide "Soldier's Manual and Trainer's Guide
for Intelligence Analysis, MOS 35F, Skill Level 1/2/3/4"
(6) Executive Order 12958
(7) Executive Order 12972
(8) Executive Order 13142
(9) Executive Order 13292
(10) A 10 February 2010 BBC news report shows Julian Assange in Iceland.
(11) A New York Times article entitled "Pentagon Sees Threat from Online
Muckrakers" by Stephanie Strom, dated 18 March 2010, references Lieutenant Colonel
Lee Packnett.
(12) On 7 June 2010, the New Yorker published an article entitled "No Secrets: Julian
Assange's Mission for Total Transparency".
(13) The Washington Post has published online a letter purportedly from United States
Department of State Legal Adviser Harold Koh, and dated 27 November 2010, which
states that the Department of State understood "from conversations with representatives
from The New York Times, The Guardian and Der Speigel, that WikiLeaks also has
provided approximately 250,000 documents to each of them for publication, furthering
the illegal dissemination of classified documents".
(14) On 29 November 2010, the Armed Forces Press Service published an article stating
WikiLeaks released classified information over the weekend of 27-28 November 2010.
(15) United States Department of State lists "al-Qa'ida" as a foreign terrorist
organization as of 8 November 1999. It hsts "al-Qaida in the Islamic Maghreb" as of 27
March 2002. It lists "al-Qaida in Iraq" as of 17 December 2004. It lists "al-Qa'ida in the
Arabian Peninsula" as of 19 January 2010.
(16) The United States FBI has named Adam Yahiye Gadahn as a "most wanted terrorist"
and states he is associated with Al Qaeda.
1
APPELLATE EXHIBIT^ B 4 7 1
PAGE RSFEHENCED:
PAGI
OF
PAGES

34083

(17) Underaheader "defining the enemy,"the United States Department ofState has
cited terrorist networks as the greatest national security threat. It has also named AI
Qaeda and confederated extremist groups as the greatest terrorist threat.
(18) United States Department ofState Assistant Secretary in the Bureau ofPublic
Attairs recites that the Department ofState has designated "al-Qa'ida in the Arabian
Peninsula(AQAP)asaForeignTerrorist Organization" in January of2010.
(19) United States Department ofState Undersecretary ti^r Management Patrick
Kennedy testified that "DOD material was leaked in July of20I0".
(20) "Inspire" isamagazine. It advocates violentjihad and promotes AlQaeda in the
Arabian Peninsula ideology.
(21) The Winter 2010issueof"Inspire" states that "anything useful fromWikiLeaks"
can be archived and shared to "help the mtj^ahidin".
2. During the Article 39(a) session held 8-IIJanuary20I3,the Govemment filed an addendum
to its motion clarifying that the Goverttment moved the Court to consider(10)-(21)as sources
for the Court to takejudicial notice ofthe following adjudicative facts:
(a) Julian Assange was located in Iceland inFebruary2010and working on the Icelandic
ModemMedia Initiative.
(b) LTC Lee Packnett was quoted inaNewYork Times article, datedI8March 2010.
(c) ANewYorkerprofileofJulianAssange,tit1ed"No Secrets: Julian Assange's
Mission forTotal Transparency" was dated7June 2010.
(d) WikiLeaks and various new organizations began publishing Department ofState
(DOS) diplomatic cables over the weekend of27-28 November 2010.
(e) AIQaeda(AQ) and its affiliates(a1-Qaeda in the Islamic Maghreb, al-Qaeda in Iraq,
al-Qaeda in the Arabian Peninsula) are all listed as foreign terrorist organizations by the
Department ofState and are, in fact, enemies ofthe United States.
(f) Usama bin Laden isamember ofAQand an enen^y of the United States.
(g) Adam Gadahn isamember ofAQand an enemy ofthe United States.
(h) "Inspire" isamagazine. It advocates violentjihad and promotes the ideology of
AQAP.
3. OnllJanuary 2013 the Goverttment provided additional sotjrce information forthe Court fi:^r
(a)-(h) above.
4. On 30 November 2012the Defense filedaresponse objecting t o ( l ) - ( 9 ) on the grottnds that
the Govemment has not established relevance. During oral argument at the 8-I1January 2013
Article 39(a) session, the Defense withdrew their objection to(6)-(9). On 15 January 2013 the
Defense filedaresponse to the Govemment addendum. The defense did not object to(d),(e)in

34084

part, (f), and (g). The Defense objected to(a),(b),(c), and (h) on lack of relevances (b)and(c)
as hearsay,and the portion of (h)that "It advocates violent jihad and promotes the ideology of al
Qaeda In the Arabian Peninsula."because it asks the Court to draw an inference. The Oefense
further objects to that part of(e)requesting the Court to take judicial notice that alQaeda in the
Arabian Peninsula as an enemy because the accused allegedly gave intelligence to the enemy
beginning in November 2009. The designation did not take place untilI9 January 2010, which
was after the alleged misconduct.
Defense Judicial Notice-Damage Assessmeuts
L On 30 November 2012the Defuse moved the Court to take judicial notice of the Office of
National Counterintelligence Executive(ONCIX),Infi:^rmationI^eviewTask Force (IRTF), and
DOS damage assessments and their contents as adjudicative facts. The Defense asserts the
damage assessments and their contents are admissible as admissions byaparty opponent under
MRE801(d)(2)andaspublicrecordsunderMRE 803(8)
2. The Govemment does not object to the Court taking Judicial Notice ofthe existence ofthe
damage assessments and that they were prepared by the relevant agency. TheGovernment
argues that the contents of the damage assessments are not admissible under MRE 801(d)(2)or
MRE803(8)
DefenseJudicialNotice-Over-classification H.R. ^^3 and Congressional Hearings
1. On 30 November 2012 the Defense moved the Court to takejudicial notice of:
(1) H.R 553 (Reducing OverClassificationAct)^
(2) House Committee meetings on fhe Espionage Act(16December 2010)^ and
(3) House Committee meetings on the Over-Classification Act (22 Ma^ch, 26 April, and
28June2007).
OnlOJanuary2013,the Defense provided the Court with supplemental Autbority,Executive

Order 13526 (Sec. 5.1)^ OoD Instruction 5210.50 (paragraphs5110and51.11)^ DoO
Instruction 5240.11:and DoD Regulation 5200-IR(Chapterl0,I0-104) to consider as source
material for the judicial notice motion.
2. On 30 November 2012,the Govemment objected to the Court takingjudicial notice ofall of
the above on grounds oflack ofrelevance for both merits and sentencing. TheGovernment
ftirther objects that Mr. Blanton'stestimony at the Congressional Hearing and the testimony at
the Congressional meetings in (2) and (3)do not consist of adjudicative facts and represent
hearsay within hearsay.
Tite Lav^: Judicial Notice

34085

1. Military Rule ofEvidence (MRE) 201 govemsjudicial notice of adjudicative facts. The
judicially noticed fact must be one not subject to reasonable dispute in that it is either(l)
generally known universa11y,1oca11y,or in the area pertinent to the event or (2) capable of
accurate and ready determination by resort fo sources whose acctiracy cannot reasonably be
q u e s f i o n e d ^ ^ v ^ ^ ^ ^ ^ ^ ^ , 2 3 M J 383 ( C M A 1987):^^v.^^^^^,33M.J706
(ACMR1991)
2. MRE 201(c)requires the militaryjudge to take judicial notice of adiudicative facts if
requested byaparty and supplied with the necessary information.
3. When the militaryjudge takesjudicial notice ofad^udicative facts, the factfinderis instructed
thattheymay,butarenotrequiredto,acceptasconcIusiveanymatterjudiciaIIynoticed.
4. Judicial notice is of adiudicative facts. Judicial notice is not appropriate fi:^rinferencesaparty
hopes the factfinderwill draw from the fact(s)judicially noticed. Legal arguments and
conclusions are not adjudicative facts subject to judicial notice, ^.^.v.^^^^^.^^^, 22 M.J.885
(A.F.C.M.R. I985)(appropriate to take judicial notice of the existence ofatreatment program at
aconfinement facility but not appropriate to take judicial notice of the quality of the program.).
The Law: Hearsay
1. Hearsay isastatement, other than the one made by the declarant while testifying at the trial,
offered in evidence fo prove the truth ofthe matter asserted. MRE 801(c). Hearsay is not
admissible except as provided by the Military Rules ofEvidence or by any Act ofCongress
applicable in trials by cotirt-martiaL MRE 802.
2. Admission byaParty Opponent. MRE 801(d)(2) provides in relevant part that admissions by
aParty Opponent are not hearsay if the statement is offered againstaparty and is(A) the parties'
ow^ statement in either the party'sindividual or representative capacity: (B)astatement of
which the party has manifested the party'sadoption or beliefin the truth:(C)astatement bya
person authorized by the party to makeastatement conceming the subject: or (D)astatement by
the party'sagent or servant concemingamatter within the scope ofthe agency or employment of
the agent or servant made during the existence of the relationship....The contents ofthe
statement shall be considered but are not alone sufficient to establish the declarant'sauthority
ttnder(C), or the agency or employment relationship and the scope thereof under (D).
3. MRE 803(8) (Public Records)is an exception to the hearsay rule. This rule allows
admission ofrecords, reports, statements, or data compilations, in any form, ofpublic office or
agencies, setting fi:^rth(A)the activities ofthe office or agency,or(B)matters observed pursuant
to duty imposed by law as to which matters there wasaduty to report, excluding, however,
matters observed by police officers and other personnel acting inalaw enforcement capacify,or
(C) against the Govemment, factualfindingsresulting from an investigation made pursuant to
authority granted by law, unless the sources ofinformation or other circumstances indicate lack
oftrustworthiness.

^

34086

4. MRE 805 provides that hearsay included within hearsay is not excluded under the hearsay
rule ifeach part ofthe combined statement conforms with an exception to the hearsay rule
provided in these rules.
Tl^eLay^: Seuteuciug-DefenseEvidence
1. RCM1001(c)govems matters to be presented by the Defense during sentencing. In relevant
part, the rule allows the Defense to present matters in rebuttal to any material presented by the
Govemment and matters in extenuation and mitigation. Matters in extenuation serve to explain
the circumstances stirrounding the commission ofan ofiense, including those reasons for
committing the offense which do not constitute legaljustificafion or excuse. Matters in
mitigation of an offense are reasons to lessen the punishment of an offense or to furnish grottnds
fi:^r recommendations of clemency.
2. RCM1001(c)(3)authorizes the military judge,with respect to matters in extenuation or
mitigation or both, to relax the rules ofevidence. This may include admitting letters, affidavits,
certificates of military and civil officers and other writings of similar authenticity and reliability.
3. RCMI00I(c)(4) provides that when the rules of evidence have been relaxed for the Defense,
they may be relaxed during rebuttal and surrebuttal to the same degree.
Conclusions ofLaw:
Government Mofion for Judicial Notice:
1. Por the matters where the sole Defense objection is relevance, the Court will take Judicial
Notice ofthe adiudicative fact subject toademonstration of relevance by fhe Goverrtmenf at
trial. Thus, the remaining Govermnent Judicial Notice requests at issue are:
(b) LTC Lee Packnett was quoted inaNewYork Times article, datedl8March 2010.
(c) ANewYorker profile ofJulian Assange, titled "No Secrets: Julian Assange's
Mission forTotal Transparency" was dated7June 2010.
(e) Al-Qaeda in the Arabian Peninsula is listed asaforeign terrorist organization by the
Department ofState and is, in fact, an enemy ofthe United States.
(h) ^"Inspire" isamagazine.j It advocates violentjihad and promotes the ideology of
AQAP. ^The bracketed portionhasonlyarelevance objection.^
2. In additionto relevance, the Defense objects to (b)and(c)as hearsay: the portion of(e)
designating AlQaeda in the Arabian Peninsula as listed asaforeign terrorist organization by the
DOS and as an enemy ofthe United States: and the portion of(h) stating "It advocates violent
jihad and promotes fhe ideology ofAQAP" because the designation by DOS occurred on19
January 2010,afier the accused'salleged misconduct.

34087

3. The Govemment asserts that the information the Govemment seeks to be judicially noticed in
(b)and(c)will be used by the Goverrtmentforanon-hearsay purpose. The Court will defer
ruling on whether to grant Judicial Notice on (b)and(c)until the Govemment offers the
evidence at triaL The Court is inabetter position to make relevance/hearsay determinations at
thattime.
4. The time-period in the charged offenses is from on or about9November2009-on or about
27 May 2010. The designation of Al-Qaeda in the Arabian Peninsula as listed asafi:^reign
terrorist organization by the DOS occurred on 19 January 2010,within the time-period ofthe
charged offenses. The Court will take judicial notice that Al-Qaeda in fhe Arabian Peninsula
was listed as foreign terrorist organization by the DOS onl9January2010and, since that date,
is an enemy ofthe United States.
5. The Court declines to takejudicial notice offhe portion of(h) stating "It advocates violent
jihad and promotes the ideology ofAQAP."This statement requires the Court to draw an
inference. Any inferences, linkages, argument, and legal conclusions tobe gleaned from the
adjudicative facts judicially noticed are appropriately presented to the factfinderby the parties,
not the Court.
Defense Motion for Judicial Notice Damage Assessments:
1. The Courtfindsthe damage assessments and their contents, to include the drafi DOS damage
assessment, to be admissible as public records under MRE 803(8). The Govemment has not
challenged their authenticity. By the Court takingjudicial notice ofthe damage assessments, the
Defense does not have to provide further evidence of authentication.
2. The Court held on 19 July 2012 and 13 January2013 that evidence of actual damage, to
include fhe damage assessments, is not relevant during the merits portion offhe triaL
3. Should there be sentencing proceedings in this case, the Court will take judicial notice ofthe
existence of the damage assessments, that each was created or compiled by ONCIX, IRTP,and
DOS and the dates they were created or compiled. The Court will take judicial notice that the
OOS damage assessment is the most current damage assessment prepared by DOS and that it isa
drafi.
4. The contents ofthe damage assessments are not adjudicative facts. Any inferences, linkages,
argument, and legal conclusions to be gleaned fiom the damage assessments are appropriately
presented to the factfinderby the parties, not the Court.
Defense Motion for Judicial Notice H.R. ^^3 and Congressional Hearings Discussing
Classification.
1. The Court has before it the Govemment Motion to Preclude Evidence of Over-classification
and the Defense Mofion toTake Judicial Notice ofH.R. 553 and Congressional Hearings
Discussing Classificafion.

34088

2. Both motions are related. The Court takes them under advisement and will issuea
supplemental ruling regarding use ofevidence ofover-classificafion on the merits and/or
sentencing and on the Defense request forjudicial notice regarding over-classification.
RULING: The Govemment and Defense Motions fi:^r Judicial Notice are GRANTED IN Part
as set fi:^rth above.
1. The Court will takejudicial notice ofthe following adjudicative facts for the Government:
(6)-(9),(d),(e)as modified to add the date of designation by DOS as 19 January 2010, (I)(6),
(a) and that portion of (h)uponademonstrafion of relevance, and (b)and(c)upona
demonstration of relevance and use as non-hearsay or asahearsay exception.
2. The Court will takejudicial nofice ofthe fi^llowing adjudicative facts for fhe Defense during
fhe Sentencing phase ofthe trial: existence offhe damage assessments, that each was created or
compiled by ONCIX, IRTF,and DOS and the dates they were created or compiled. TheCourt
will takejudicial notice that the DOS damage assessment is fhe most ctirrenf damage assessment
prepared by DOS and thaf if isadrafi.
3. TheCottrt takes the Defense Motion fi:^r Judicial Nofice ofH.R. 553 and Congressional
Hearings Discussing Classificafion under advisement along with the Govemment Motion fo
Preclude Evidence of Over-Classification and will issueasupplemental ruling on both matters.
SoOrderedthisl6^^ day ofJanuary 2013
^

DENISERLIND
COL,JA
ChiefJudge, 1^^ Judicial Circuit

. . 34089

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
RULING: DEFENSE MOTION
TO COMPEL WITNESSES -
AMBASSADOR GALBRAJTH

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

DATED: 16 January 2013



On 23 November 2012, the Defense moved to compel production of Ambassador
Galbraith as a sentencing witness. On 12 December 2012, the Government ?led a motion
opposing production of Ambassador Galbraith. On 4 January 2013, the Defense ?led proffers in
support of its motion, to include a 3 January 2013 declaration from Ambassador Galbraith.
Having considered the ?lings by the parties, oral argument, and Ambassador Galbraith?s
declarations, the Court ?nds and rules as follows:

1. Ambassador Galbraith served as ambassador to Croatia from 1993-1998. He was an original
classi?cation authority (OCA). Prior to this he served as a staff member of the Senate Foreign
Relations Committee from 1979 1993. For 10 years during this period he was responsible for
DOS authorization legislation to include responsibility for oversight and legislation related to
DOS handling of classi?ed information.

2. SIPDIS was not used while Ambassador Galbraith was in DOS but he or his staff drafted
some of the cables that subsequently received the SIPDIS label.

3. The Government is calling a number of witnesses from DOS for the sentencing phase of the
trial. The Defense does not have easy access to witnesses currently employed at DOS.

. 4. The Govemment?s response concedes that, although dated, Ambassador Galbraith?s testimony
could be relevant for sentencing.

5. RCM provides that a defense synopsis of expected testimony must list the
subjects the witness is expected to address and what the witness will say about those subjects.
US v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999). The Defense has met this requirement.

6. Although Ambassador Galbraith?s experience at DOS is 15 years old and he does not have
direct experience with SIPDIS, he does have some experience with some of the cables at issue in
this case, and as a DOS OCA, and with legislation involving classi?cation by DOS. In light of
the number of DOS Government witnesses testifying during sentencing and the lack of ready
access to such witnesses by the Defense, the Court orders the Government to produce
Ambassador Galbraith as a Defense witness for sentencing.

.. 3
A



RULING: The Defense Motion to Compel Production of Ambassador Galbraith is GRANTED.



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

so ORDERED: This 16?? day of January 2013.

34091

Appellate Exhibit 474
1 pages
ordered sealed for Reason 7
(govemment)
Military Judge's Seal Order
dated 20 August 2013
stored in the original Record
of Trial

34092

From:
To:
Cc:
Subject:
Date:
Attachments:

Fein. Ashden MA) USARMY MDW (US)
David Coombs
HvrlSY, Thomas F MAJ USARMY (US); Tooman. Joshua J CPT USARMY fUS^: Morrow. JoDean Ooe) III CPT
USAI^MY USAMPW (US); Overcaard. Anoel M CPT USARMY (US): Whvte, J Hunter CPT USARMY fUSI: ysffl
Elten, Alexander S fAlec) CPT USARMY (US): Ford. Arthur D Jr CW2 USARMY fUS)
Discovery
Saturday, November 17, 2012 5:43:54 PM
new The Wikileaks Cables Today's O's for G's WH - 12-3-2010 - ABC News.odf

David,
This past week, I was sent the attached article via email. I am providing the article as part of our
ongoing discovery obligation. We will produce it, with BATES numbers, as part of our normal process
after Thanksgiving.
Have a good weekend.

v/r
Ashden

34093

appellate Exhibit 47^
l^pages
classified
''SEC^RET''
ordered sealed for Reason2
Military Judge's Seal Order
dated20^ugust2013
stored in the classified
supplement to the original
Record ofTrial



UNITED STATES OF AMERICA

v. Updated Prosecution Witness List #4
Manning, Bradley E.

PFC, U.S. Army,

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

31 January 2013



(U) The prosecution may call the below witnesses to testify on the merits at uial and/or
during the presentencing phase? of the above-captioned court?martial. After each witness name
is a brief description of the general substance of witness testimony, including whether the
prosecution currently intends to elicit classi?ed information during their testimony.

(U) This witness list is provided as an update to the 2 December 2012 witness list. Unit
and contact information is updated for several witnesses, descriptions are updated for six
witnesses,2 and four witnesses are deleted. Any new and substitute witnesses are foomoted. If
necessary, the prosecution may replace additional witnesses on this list, should it become
necessary due to :3 Permanent Change of Station, job relocation, change in job position, or
change in level of security clearance of a listed witness.

(U) The below witnesses are only offered to testify regarding infonnation concerning the
accused, the charged misconduct, the classi?ed information used by the prosecution to prove the
charges and their speci?cations, and classi?ed information that is related to the impact or
damage resulting from the accused's charged misconduct. The prosecution does not intend to
elicit "Top Secret" or "Sensitive Comparlmented Information" ?om any of these witnesses.

(U) The prosecution will supplement its sentencing witness list with certain merits
witnesses if the entered pleas negate the need to present that witness?s testimony during the
merits portion of the trial.

1.



1 (U) As of the date of this ?ling. persons identi?ed with an asterisk are witnesses only for purposes of the
presentencing phase: persons identi?ed with a caret are witnesses for purposes of presentencing and merits.

2 (U) The changes in the witness descriptions are enclosed in including an empty where deletions
occurred.




EXHIBIT Li
PAGE

PAGE PAGES

34095



(U) SFC Paul Adkins, Headquarters and Headquarters Company. 2d Battalion, 14th
Infantry Regiment, 2d Brigade Combat Team (ZBCT), 10th Mountain Division (LI), Fort
Drum, NY 13602 I. He will testify about the accused's training, activities.
and duties. For sentencing. he will testify about the impact of the accused's actions on him
and the unit.



(U) Mr. Maxwell Allen, Central Intelligence Agency, McLean, VA 22101, POC: Ms.

Jennifer M., I. He will testify as to the authenticity of the OSC logs,
including classi?ed information concerning the administration of the logs and the substance
of the logs as it relates to the accused.

(U) SGT Mary Amiatu, l8th AG Personnel Services Battalion, Fort Bragg, NC 28310,
-. She will testify as to the authenticity of the JAMMS records.

(U) SFC Jose Anica, Brigade Modernization Command, Fort Bliss, TX 79916,
2 He will testify about the accused's intelligence systems training and the accused's
activities at 2/10, including potential classi?ed information.

(U) Mr. Peter Artale, 902d Group, Fort Meade, MD 20755, . He will
testify as to the authenticity of the AC IC logs, including classi?ed information concerning
the administration of the logs and the substance of the logs as it relates to the accused.

(U) SPC Eric Baker, Fort Drum, NY 13602, . He will testify about the

accused's activity in his CHU and the accused's activities at 2/10.



(U) W01 Kyle Balonek. Headquarters and Headquarters Company (HHC), Headquarters
and Headquarters Battalion (HI-IBN), 10th Mountain Division (LI), Fort Drum, NY 13602,

-. He will testify about the requirements of being a 35F the accused's duties
and work product, including classi?ed information.



(U) Mr. Joseph M. Benthal, Watertown, NY 13601, . He will testify about
the requirements for access to government systems at 10th Mountain Division.

(U) SA Troy Bettencourt. U.S. Department of Treasury, Washington, DC
He will testify about the IA training the accused received, authentication of

2



20.

21.

22.

34096

multiple pieces of evidence, and the information that the accused leaked to WikiLeaks,
including classi?ed information.

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

(U) Mr. Wyatt Bora, Air Force Research Laboratory, Rome, NY 13440,
He will testify about the IDNE database, its value, and how it appeared at a particular
time, including classi?ed information.

(U) SA John Bowen, 3rd MP Group Ft. Eustis, VA 23604- He is a
chain of custody witness.

(U) Mr. Steve Buchanan, Intelink, Fort Meade, MD 20755, . He will testify

as to the authenticity of the Intelink logs, including classified information concerning the
administration of the logs and the substance of the logs as it relates to the accused



(U) Mr. Sean Charnberlin, 902d MI Group, Fort Meade, MD 20755, . He
will testify about how the ACIC logs data, how to read the logs, and the content of the logs,
including classi?ed information.

A Thomas Cherepko, NATO Force Command, Madrid. Spain 28221--

will testify about the 2/10 Moimtain share drive and its contents, as well as the

requirements to access it. For sentencing, he will also testify regarding the impact on the
S-6 as a result of numerous investigations into the accused?s misconduct.



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

24.

25.

26.

27.

28.
29.

30.

34.

34097



(U) SGT Lorena (Cooley) Defranlr, Headquarters and Headquarters Company (HHC), 2nd
Brigade Special Tr Battalion (2 BSTB), 2BC 10th Mountain Division (LI), Fort
Dnrm, NY 13602, . She will testify about the accused's work product and
the accused's activities within 2/10, including classi?ed information.

(U) PDAS Elizabeth Dibble, Principal Deputy Assistant Secretary, Bureau of Near
Eastern Affairs, Department of State, Was on DC 20520, POC: Mr. Jonathan Davis,
(202) 647-2227 I Ms. Elizabeth O'Connor, . She will testify at sentencing
about the impact to Near Eastern Affairs. including classr red information.

(U) Mr. John Doe, Department of Defense.?





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

information concerning the administration of the logs and the substance of the logs as it
relates to the accused.



(U) SA Antonio Edwards, Homeland Security Investigations, National Security Unit,
Atlanta, GA 30301, He is a chain of custody witness.

(U) SA Kirk Ellis, Rock Island Fraud Resident Agency. Major Procurement Fraud Unit,

Moline, IL 61265, . He is a chain of custody witness.

(U) PDAS John Feeley, Principal Deputy Assistant Secretary, Brueau of Western
Hemisphere A?airs, Department of State, Washington DC 20520, POC: Mr. Jonathan
Davis, Ms. Elizabeth O'Connor, He will testify about the
content of the charged cables originating from and sent to the Western Hemisphere on the





(U) This witness was not on the previous witness list.



4

35.

37.

40.

42.

43.

34098

merits (speci?cally, 07 Bogota 101; 07 Bogota 5118; 07 Bridgetown 23; 07 Buenos Aires
1341; 07 Caracas 2346; 07 Caracas 35; 07 Kingston 25; 07 La Paz 1949; 07 Lima 2400; 07
Panama 1197; 07 Panama 1198: 07 San Salvador 1375; 07 Santo Domingo 28; 09 Bogota
2873; 09 Brasilia 1112; 09 Brasilia 1113; 09 Caracas 1168: 09 Lima 1309; 09 Mexico
2658; 09 Santiago 831; 09 Santiago 833; 09 Santiago 835; 09 Santo Domingo 1017: 09
Tegucigalpa 891; 09 Tegucigalpa 892; 09 Lima 333; 09 State 92655) and the impact to
Western Hemisphere Affairs on sentencing, including classi?ed information.



(U) Matthew Freeburg, Fort Sill, ox 73503,?. He will testify about
the accused's activities while deployed{, as well as his actions as the company commander
in response to the Accused's alleged misconduct}.

(U) CPT Casey (Martin) Fulton, Joint Multinational Readiness Center, Hohenfels

Military Community, Germany. APO AE 09173, . She will testify about
the accused's training, duties, and work product, including classi?ed information. For
sentencing, she will testify regarding the impact of the accused?s misconduct on the S-2
shop.

(U) Mr. James Fung, Brookhaven National Laboratory, Upton, NY 11973,
He is a chain of custody witness.

(U) Ms. Shelia Glenn, Fort Meade, MD 20755, 1. She will testify about
unclassi?ed contents of the ACIC document in Speci?cation 15 of Charge II.5 The
prosecution does not intend to elicit classi?ed testimony from this witness.





(U) SA Toni Graham, Hawaii CID Of?ce, Scho?eld Barracks, HI 96857,
She will testify about the law enforcement investigation in Iraq.

(U) Mr. Jacob Grant, US Central Command, MacDill AFB, FL 33621,

will testify about the USCENTCOM server logs. including potentially classi?ed
information.

(U) CW3 Hondo Hack, Joint Multinational Readiness Center, Hohenfels Military

Community, Germany, APO AE 09173, DSN: 1. He will testify about the
accused's work product, including classi?ed information.

58. He



45.

46.

47.

48.

49.

50.

54.

55.

56.





34099





(U) VADM Robert Harward, US Central Command, MacDill AFB. FL 33621. POC:
USC ENTC OM OSJA, . He will testify as an original classi?cation
authority (OCA) that charged USCENT OM information was properly classi?ed,
including classi?ed information.

(U) Mr. Patrick Hoeffel, Intelligent Software Solutions, Inc., Colorado Springs, 0 80919,
. He will testify about the database {and how it appeared at a
particular time}, including potentially classi?ed information.



(U) Mr. Matthew Hosburgh, Westminster, 0 80021, He will testify about
the C3 document.

(U) LT (US Navy) Thomas Hoskins, Booz Allen Hamilton, Colorado Springs, 0 80903,
. He will testify about the content of charged USC ENTC OM documents
containing J-S information, including classi?ed information.

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

(U) Mr. Albert J. Janek, Director, O?ice of ontinuity, Department of State, Washington
DC 20520, Duty Station: U.S. Embassy, Kabul, Afghanistan, POC: Mr. Jonathan Davis,

Ms. Elizabeth O'Connor, He will testify about the
authenticity and chain of custody of the server logs.

(U) Mr. Mark Johnson, Digital Forensics and Research Branch, Computer Crime
Investigative Unit, Quantico, VA 22134. He will testify about his

57.

58.

59.

60.

62.

63.

65.



forensic analysis of the accused's digital media, including classi?ed information concerning
the contents of his forensic reports.

(U) AMB Patrick F. Kennedy, Under Secretary for Management, Department of State,
Washington DC 20520, POC: Mr. Jonathan Davis,-7 Ms. Elizabeth
O'Conno . He will testify on sentencing about the impact to the
Department of State, including classi?ed information concerning impact on foreign
relations, foreign policy, and the management of the Department.

(U) Mr. John Kirchhofer, Chief of Enterprise Strategies, Of?ce of ounterintelligence
(CI) Human Intelligence (I-IUMINT) Enterprise Management, Defense Counterintelligence
and Human Intelligence Center, Defense Intelligence Agency, Bolling AF B, DC 20032,
. He will testify at sentencing about the impact on the Department of

Defense, including classi?ed information concerning speci?c impacts within the
Department of Defense, the administration and operation of the IRTF, and contents of the
IRTF damage assessment.

(U) Mr. Mark Kitz, Of?ce of the Assistant Secretary of the Army for Acquisition,
Logistics, and Technology Aberdeen Proving Ground.

He will testify about the DC GS-A system, including potentially classi?ed
information.?

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

(U) Mr. Adrian Lamo, Carmichael, CA 95608, The United States does not

intend to elicit any classi?ed information contained within the digital chat log.



(U) CW5 Jon Larue, DAMO-AV, Pentagon, Washington, DC 203 10, He
will testify about the content of the Apache Video.

(U) Mr. Danny J. Lewis, Defense Intelligence Agency, Bolling AFB, DC 20032:
He will testify about cormterintelligence and the value of information, including
classi?ed information concerning the value of government information.

(U) Mr. Kitz is replacing Mr. Vince McCarron. HQDA 0.2. Washington. DC 20310 and is testifying to the same
subject matter as Mr. McCarron

7 (lngsupra note 3.



34100

67.

68.

69.

70.

72.

74.

76.
77.

78.

34101

CPT Steven Lint. HQ. Anny Division-East, Fort Meade. MD 20755,
. He will testify about the 2/10 Mountain share drive and its contents, the accused's
training and duties, including potentially classi?ed information. For sentencing. he will
testify regarding the impact of the accused?s misconduct on the S-2 shop.

(U) SGT Chad Madaras, Headquarters Headquarters Company, 2d Battalion, 14th Infantry




Regiment, 2BCT, 10th Mountain Division (LI), Fort Drum, NY 13602
He will testify about the 35F training, 2/ 10 pre-deployment training, and the use of his
SIPRNET computers while deployed, including potentially classified information.

(U) s1=c (Ret) Brian Madrid, Buckeye, AZ 85326, He will testify about
the accused's training at AIT.

(U) Ms. Tamara Mairena, Headquarters, Computer Crime Investigative Unit, Quantico, VA
22134, She is a chain of custody witness.

(U) SA Mark Mander, Washington Metro Resident A ency, Computer Crime
Investigative Unit, Quantico, VA 22134, He will testify about Wilcileaks
operations, the investigation of the accused. and certain enemies of the United States being
in possession of information, including classi?ed information.

(U) SGT Alejandro Marin, 333rd MP Brigade, Uniondale, NY 11553 (currently deployed
to Afghanistan), DSN: He will testify about the accused's training at AIT.

79.

80.

82.

83.

85.

86.

87.

88.



34102

Mr. James McManus, Broolchaven National Laboratory, Upton, NY
He is a chain of custody witness.



(U) A COL David Miller, BDE Modernization Command, Ft. Bliss, TX 79913, -
- He will testify about the accused's misconduct and the multiple administrative
investigations.

(U) Mr. Jason TASC, Inc., Charlottesville. VA 22901, . He will
testify about the accused's access to DCGS-A, including potentially classi?ed information.

(U) DAS James Moore, Deputy Assistant Secretary, Bureau of South and Central Asian
Affairs, Department of State, Washin on, DC 20520, POC: Mr. Jonathan Davis, (202)
Ms. Elizabeth O'Connor, He will testify about the content of
cables originating from South and Central Asia on the merits (speci?cally, 06 Colombo
1889; 06 Kathmandu 3023; 06 Kathmandu 3024; 07 Ashgabat 1359; 07 Dhaka 24; 07 New
Delhi 80: 09 New Delhi 267; 09 State 9264]), including classi?ed information.

(U) Mr. Ken Moser, US Central Command, MacDi1l AFB. FL 33621,
He will testify about the information posted to the USCENTC OM OSJA SIPRNET
website, including potentially classi?ed information.

(U) Mr. Jeffery Motes, JTF-GTMO, Guantanamo Bay, Cuba, He will
testify about the JTF-GTMO database and the contents of compromised information,
including classi?ed information. For sentencing, he will testify about the impact resulting
from the compromise of the JTF-GTMO database.

(U) Mr. Troy Moul, US Arm Intelli ence Center and Center of Excellence, Fort
He will testify about instructing the accused at








Huachuca, AZ 85613,

92.

93.

94.

95.

96.

97.

98.

34103

(U) Mr. Gerald Mundy, Information Systems Security O?icer, Bureau of Intelligence and
Research. Department of State. Washin on, DC 20520. POC: Mr. Jonathan Davis,
- Ms. Elizabeth O'Connor, He will mar, about the auth ity
and chain of custody of the ?rewall logs, including potentially classi?ed information.
(U) Mr. Nicholas Murphy, Reviewer, O?ce of Global Information Services, Bureau of

Administration, Department of State, Washington, DC 20520 (When Actuall lo ed),
POC: Mr. Jonathan Davis, Ms. Elizabeth O'Connor, He









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



LtCol (Ret) Martin Nehring, US Central Command, MacDill AFB, FL
He will testify about the content of charged documents containing J3
information, including classi?ed information.
(U) cw4 Ronald Nixon. ARCYBER, Fort Belvoir, VA 22060_. He will
testify about the USF-I GAL.





SGT Daniel Padgett, 902d Military Intelligence Group, Fort Leavenworth. KS 66027,
. He will testify about the accused's training and duties and his interactions

with the accused while deployed, including potentially classi?ed information.

(U) AMB David Pearce, Deputy Assistant Secretary and Senior Deputy Special
Representative for Afghanistan and Pakistan, Bureau of South and Central Asian A?airs,
Department of State, Washin on DC 20520, POC: Mr. Jonathan Davis,

Ms. Elizabeth O'Connor, He will testify about the content of cables
originating from Afghanistan and Pakistan on the merits (speci?cally, 06 Kabul 5420; 06
Kabul 5421; 06 Kabul 5435; 99 Islamabad 495), including classi?ed information.



34104



100. (U) PDAS H. Dean Pittman, Principal Deputy Assistant Secretary, Bureau of International
Organization A?airs, Department of State, Washington, DC 20520, POC: Mr. Jonathan
Davis, - Ms. Elizabeth O'Connor, He will testify about the
content of cables originating from International Organizations on the merits (speci?cally 07
USUN New York 573; 07 USUN New York 575; 07 USUN New York 578), including
classified information.



104. (U) SA Calder Robertson, Europe Branch Of?ce - Computer Crime Investigative Unit,
Funari Barracks, APO AE 09008. DSN: . He will testify about his forensic
analysis of the accused's digital media, including classi?ed information.

I?l

9'

106. (U) SA Ronald Rock, Assistant Regional Security Officer, Diplomatic Security Service,
Department of State, Washington, DC 20520, Duty Station: Consulate, Mazar-e-Sharif,
Af tan, POC: Mr. Jonathan Davis. Elizabeth O'Connor,
He will testify about the chain of custody of the ?rewall and server 1
including potentially classi?ed information. For sentencing. he will discuss the impact of
the compromise on the US Embassy at Reykjavik, including classi?ed information.

109. (U) CW4 Armond Rouillard, G33, US Army Network Enterprise Technology Command.
Ft. Belvoir. VA 22060?. He will testify about {the SIPRNET. what



(U) Mr. Pearson was not on the previous witness list.

9 note 3.



110.

111.

I12.

113.

114.

115.

34105

software was authorized on the SIPRNET, the USF-I GAL, and} the value of information
stolen from the USF-I GAL, including potentially classi?ed information.

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

(U) Mr. Doug Schasteen, Wilco Technologies, Inc., Kansas City, MO 64106
. He will testify about the authenticity of the accused's annual Information
Awareness training.

(U) Ms. Jacqueline Scott, US Central Command, MacDill AFB,
2. She will testify about the response to the FOIA request for the Apache video,
including potentially classi?ed material.

(U) AMB Stephen Seche, Deputy Assistant Secretary, Bureau of Near Eastern A?airs,
Department of State, Washington, DC 20520, POC: Mr. Jonathan Davis

Ms. Elizabeth O'Connor, He will testify about the content of cables
originating from the Near East on the merits (speci?cally, 05 Algiers 06 Algiers
1961; 06 Baghdad 2646; 06 Baghdad 4205; O6 Beirut 3603; 06 Beirut 3604; 06 Beirut
3703; 06 Kuwait 4430; 06 Kuwait 4438; 06 Riyadh 8811: 06 Tripoli 645; 06 Tripoli 648:
07 Baghdad 35; 07 Baghdad 36; 07 Baghdad 37: 07 Baghdad 42; 07 Baghdad 53; 07
Baghdad 56; 07 Baghdad 63; 07 Baghdad 64; 07 Baghdad 70; 07 Basrah 3; 07 Beirut 1958;
07 Riyadh 21; 07 Riyadh 22; 07 Riyadh 23; 07 Tunis 47; 08 Amman 535; 08 Cairo 569; 09
Baghdad 2390; 09 Riyadh 1156; 10 Rabat 294), including classi?ed information.

(U) SA David Shaver, U.S. Department of Treasury, Washington, DC 20220,
He will testify about his forensic analysis of the accused's digital media and
information posted to Wikiheaks, including classi?ed information, concerning the contents
of his forensic reports.

(U) Ms. Jihrleah Sho . She will testify about

the training the accused received before deployment, the accused's statements and activities
before deployment, their duties during deployment and the accused's activities during
deployment, including potentially classi?ed information. For sentencing, she will testify
about the impact of the accused's misconduct



117.

(U) SA Thomas Smith. US Army CID ommand. Fort Gordon, GA 30905.
2 He will testify about the investigation in Iraq.



0 0 34106

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



125. (U) Ms. Tasha Thian, Agency Records O?icer, Office of Global Information Services,
Bureau of Administration, Department of State, Washington, DC 20520, POC: Mr.
Jonathan Davis, Ms. Elizabeth O'Connor, - She will
testify to the authenticity of all charged Department of State cables, including potentially
classi?ed information.

126. (U) SSG Robert Thomas, Headquarters and Headquarters Troop Support Squadron, 3d
AC R, Fort Hood, TX, He will testify about the training received at AH.

127. (U) Mr. Louis Travieso, US Central Command MacDill AFB, FL 33621,?
He will testify about the content of the charged document(s) containing 1-2 ormation.

including classi?ed information.
128. (U) Ms. Debra Potomac, MD 20854, She is an

authentication witness.



(U) Ms. was not on the previous witness list.
I 3



0 . 34107



131. (U) Mr. Greg Weaver, Compliance Branch Chief, US Army Cyber Command, Ft. Belvoir,
VA 22060, He will testify about information assurance.

132. (U) Ms. Florinda White, ERDEC Software Engineering Directorate, Aberdeen Proving
Ground, MD 21oo5,?. she will testify to the authenticity of DCGS-A
documentation{, as well as what is authorized on

133. (U) SA John Wilbur, Department of Treasury, Washington, DC
He is a chain of custody witness.

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

135. (U) Mr. Charlie Wisecarver, Bureau of Information Resource Management, Department of
State, Washington, DC 20520 (When Actually Employed), POC: Mr. Jonathan Davis,
Ms. Elizabeth O'Connor?. He will testify about the NCD
system, including potentially classi?ed information concerning how NCD originated,
operated, and was maintained.

136. (U) Mr. Alex Withers, Brookhaven National Laboratory, Upton, NY
2. He is a chain of custody witness.

137. (U) RADL David Woods, Commander, Strike Force Training Paci?c, San Diego. CA
96601, POC: LCDR Todd Kline,_. He will testify as an OCA that HP-
GTMO information was properly classi?ed, including classi?ed information.

138. (U) AMB Don Yamamoto, Principal Deputy Assistant Secretary, Bureau of A?ican

Affairs, Department of State, Washington, DC 20520, POC: Mr. Jonathan Davis,

Ms. Elizabeth O'Connor, He will testify about the content of
cables originating from A?ica on the merits (speci?cally, 07 Addis Ababa 2197; 07 Lagos
719; 08 Dar Es Salaam 206; 08 Khartornn 246; 08 Khartoum 428; 09 Addis Ababa 1063;
09 Bamako 85; 10 Pretoria 636), including classi?ed information.

139. (U) Mr. Garon Young, Headquarters, Computer Crime Investigative Unit, Quantico, VA
22134?. He is a chain of custody wimess.

140. (U) AMB Marie Yovanovitch, Principal Deputy Assistant Secretary, Bureau of European

Affairs, Department of State, Washington, DC 20520, POC: Mr. Jonathan Daviszg

Ms. Elizabeth O'Connor, She will testify about the of
cables originating ?om or sent to Europe or Eurasia on the merits (speci?cally, 10
Reykjavik 13; O6 Belgrade 1681; 06 Madrid 2955; 06 Madrid 2956; 06 Pristina 947; 06
Pristina 948; 07 Ankara 23; 07 Ankara 2468; 07 Bratislava 665; 07 Minsk 1024; 07
Moscow 5824; 07 Moscow 5825; 07 Paris 4722; 07 Paris 4723; 07 Reykjavik 203; 07
Vilnius 13; 09 Paris 217; 09 Prague 88; 09 Pristina 58; 09 State 92632; 09 State 92657; 09
Brussels 382; 09 Geneva 347), including classi?ed information.

14



. 34108

141. (U) PDAS Joseph Yun, Principal Deputy Assistant Secretary, Bureau of East Asian Affairs
Department of State, Washington, DC 20520, POC: Mr. Jonathan
Ms. Elizabeth O'Connor,? He will testify abort the content of cables
origimting from East Asia and the Paci?c on the merits (speci?cally, 06 Seoul 3882; 06
Seoul 3885; 06 Suva 489; 06 Taipei 3830; 07 Bangkok I l; 07 Beijing 152; 07 Kuala
Lumpur 40; 07 Rangoon 22; 07 Suva 18; 07 Vientiane 12; 10 Tokyo 627), including
classi?ed information.




(U) The prosecution acknowledges an ongoing obliytion to povide the defense prompt
notice of any other potential witnesses come to its attention and will adhere to the local
rules. The prosecution will commrmicate its ?nal witness list accordingto Rule 2.1.8 ofthe
Rules of Practice before Army Courts-Martial (2012) and the Court's order.

(U) lfthe defense imendstopoduceawitness who islisted above,thedefense must
provide a separate, appropriate request for witness in accordance with Rule for Courts-
Martial (RCM) 703 and the standard articulated in 52 MJ. 98,105
(1999) that a witness request include a ?synopds of expected testimony,? not merely a list of
topics to be covered. If necessary for a particular witness employed by the United States
Government, the defense shall also comply with 5 U.S.C. 301 md 340 U.S.
462 (1951



HDEN FEIN
MAJ, JA
Trial Cotmsel

(U) I certify that I servedorcausedto beserved atrue copy oftheaboveon Mr. Cassius
Hall, Defense Security Expert, as requested by Mr. David Coombs, Civilian Defense Cormsel,
via SIPRNET, on 31 January 2013.

ASHDEN FEIN
MAJ, A
Trial Cotmsel



34109

appellate Exhibit 477
14pages
classified
B'SEORET"
ordered sealed for Reason2
andReason7(^govemment^
Military Judge's Seal Order
dated20^ugust2013
stored in the classified
supplement to the original
Record ofTrial

34110

appellate Exhibit 477
Enclosurel
classified
"SEORET^^^OOM"
ordered sealed for Reason2
andReason7(^govemment^
Military Judge's Seal Order
dated20^ugust201^
stored in the classified
supplement to the original
Record ofTrial

34111

Appellate Exhibit 477
Enclosure 1 - Placeholder
1 page
classified
"SECRET"
ordered sealed for Reason 2
and Reason 7 (govemment)
Military Judge's Seal Order
dated 20 August 2013
stored in the classified
supplement to the original
Record of Trial

34112

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

Government Motion for
in camera Proceeding
Under MRE 505(0(2)
31 January 2013
Enclosure 2

APPELLATE EXHIBIT
Q^uL
PAGE REFERENCED:
PAGE
OF
PAGES

Obama meets with participants in raid that killed bin Laden-The Washington Post

34113

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Video: President Obama traveled Friday to Fort Campbell in Kentucky to thank troops stationed there. He said that
because of Incredible their skill and courage, Osama bin Laden "will never threaten America agalri." (May 6)
-

. Text See

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E^tnaii

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By Perry Bacon Jr.,
FORT CAMPBELL, Ky. — President Obama met Friday with some of the Navy SEALs who
raided Osama bin Laden's compound and killed him, part of a day of events marking bin
Laden's death that was far more celebratory than was Obama's solemn appearance a day
earlier at Ground Zero in New York.

Calculate New Poymem

In private meetings at this Army installation, Obama and Vice President Biden
congratulated members of the elite Navy SEAL Team 6 and units that supported their
mission, presenting them with the Presidential Unit Citation, the highest award for a
mihtary unit, a senior White House ofScial said.
Obama was given a briefing on the bin

Comments

Laden operation that included photos and E

Weigh In >

scale model of the compound, the ofScial

Corrections? >

said.

video

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http://www.washingtonpost.com/national/obama-meets-with-participants-in-raid-that-kille...

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Obama meets with participants in raid that killed bin Laden-The Washington Post

Seal Team 6, the team of Navy SEALs who killed
Osama bin Laden, are known at the Pentagon as a tier
one force — reserved for high priority targets. (May 6)

Gallery

A military canine was on the raid that killed
bin Laden. Here's a look at what military
dogs do.

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Afterward, Obama pubhcly praised both the
troops who killed bin Laden and those who
serve throughout Afghanistan, including
brigades from the Army's lOlst Airbome
Division, which is based at Fort Campbell.
The more than 2,000 soldiers who heard the
president in a hangar shouted and cheered
throughout his speech, a marked break from
the more formal appearances the president
has made since bin Laden's death.

34114

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"I came here for a simple reason: to say
thank you on behalf of all America. This has
been a historic week in the life of our nation.
Thanks to the incredible skill and courage of
countless individuals, intelligence, mihtary,
over many years, the terrorist leader who
struck our nation on 9/11 will never threaten
America again," Obama said to loud
applause.

Full Paper

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FULL COVERAGE: The death of Osama bin Laden
PHOTOS: Bin Laden killed in CIA operation
VIDEOS: Bin Laden's death; remembering victims
The Hunt: A search that called for new tactics
•fView all Items in this Story

The Hunt for Osama bin Laden

The president said his meeting with Special
Operations forces "was a chance for me to
say on behalf of all Americans and people
aroimd the globe, job well done, job well
done."

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"These Americans deserve credit for one of
the greatest intelhgence and military
operations in our nation's history," he said.

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The identities of the men who killed bin
Laden are likely to remain secret. White
House officials released few details of
Friday's meetings and would not formally
confirm whether Obama met members of
SEAL Team 6, whose existence is classified.

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But the always-candid Biden gave a strong
hint. Beaming as he introduced Obama at
the hangar, the vice president told the
troops that he had tried to explain to one of
his granddaughters what he was going to do inKentucky, and she had replied, "My pop's
going out to see the whales."
Joining Biden and Obama in the private meetings were Adm. Eric T. Olson, the commander
of U.S. Special Operations, and Vice Adm, William H. McRaven. the head of Joint Special
Operations Command and the man who directed the SEALs' mission' Nearly 80 U,S,
commandos were involved in the top-secret mission, including about two dozen who entered
bin Laden's compound in Abbottabad, Pakistan.
The president also met with members ofthe 160th Special Operations Aviation Regiment,
which provided the helicopters that took the members of Team 6 to bin Laden's compound.
A dog that took part in the raid also was present, aides said.
Obama used his appearance to speak broadly about the war in Afghanistan, where he has
pledged to start reducing troops by July. About 1,000 soldiers from Fort Campbell retumed
this week from deployments, but more than 7,000 remain in Afghanistan, a base spokesman
said.

http://www.washingtonpost.com/national/obama-meets-with-pa

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Obama meets with participants in raid that killed bin Laden-The Washington Post

34115

"Ourstrategyis working, and there is no greater evidence ofthat than justicefinallybeing
delivered to Osama bin Laden,"Obama said.
Some lawmakers in both parties disa^ee with that assessment andhaveealled for
withdrawing forces more^tticklythan Obama supports.
Sgt. Marcus Miller, who recentlyretumed from Afghanistan and heard Obama'sspeech,
said,"^verybodyhadasenseofaccomplishment"followingnewsofbinLaden'sdeath.
But Spec. Miranda Oillonsaid,"1'm glad bin Laden is gone, but there arc still howmany
people standing behind him."
Staff writers William BraniginandAnneE.Komblut in Washington contributed to this
report.

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Robert Gates: SEAL Team Members Are Worried About The Safety Of Their Families

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The outgoing Secretary of Defense made a somewhat startling admission the other day
regarding the leaks that have come out regarding the raid that killed Osama
bin Laden:

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at Crociml.com and

The Department of Defense is looking into ways to "pump up the security" for

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the team of Navy SEALs who helped kill Osama bin Laden after the

support, and more.

commandos expressed concem for their safety and the safety of their families,

Read more...

Defense Secretary Robert Gates said Thursday.
Gates made the comment in response to a question at a town hall meeting at
Camp Lejeune, North Carolina. A Marine asked what measures were being
taken to protect "the identities and the lives" of the SEALs involved in the
takedown ofbin Laden in Pakistan a week ago, as well as other troops
deployed in the region, from the threat of retaliation.

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"We are very concemed about the security of our families - of your families
and our troops, and also these elite units that are engaged in things like that.
And without getting into any details ... / ivould tell you that when I met
un't/i the team last Thursday, they expressed a concern about that,
and particularly

Submit

with respect to their famitieSf '* Gates told the

audience.
"Frankly, a week ago Sunday, in the Situation Room, we all agreed that we

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would not release any operational details from the effort to take out bin
Laden. That all fell apart on Monday, the next day."

Bill Clinton Warns Democrats Against
Overreaching On Gun Debate
47 people recommended this.

In all honestly, there's no way that pledge could've been kept I think. This vrasn't just
another operation in Kandahar, it was an operation to take out the leader of the group
that murdered 3,000 Americans on September iith. Once the White House annotmced
that it had happened, I'm not sure that a "no operational details" stance would have
gone over well with the press, or politically. At the same time, it seems apparent that

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sufficient details about the operation have come out now and that we don't need to
know details at the level that would endanger the lives of the SEALs themselves or their

Facebook social plugin

families.

http://www.outsidethebe1tway.com/robert-gates-seal-team-members-are-worried-about-the.

SEAL Team Six: Is their safety being compromised? - CSMonitor.com

p-CHRismAN SQENCE

MONITOR
SEAL Team Six: Is their safety being
compromised?
Members of SEAL Team Six, the Navy squad that killed Osama bin Laden, are concemed that leaks
about the raid will compromise their anonymity and threaten the safety of their families, IDefense
Secretary Gates said Thursday.
By Aaron Couch, Contributor/May 13, 2011

Navy SEALS train this week near San
Clemente Island, Calif.
n39/2UMA Press/Newscom

Enlarge

Members ofthe Navy SEAL team whose daring mission ended the life of Al Qaeda
leader Osama bin Laden are concemed for the safety of their families. As details of the
raid continue to leak out, the US military is exploring ways to "pump up the security" for
SEAL Team Six, Defense Secretary Robert Gates said Thursday.

Related stories
In SEAL Team Six success, lessons from
'horrible night' in Iran 30 years ago
Were Navy SEALs Justified in shooting an
unarmed Osama bin Laden?
Bin Laden videos as psy-ops: What US wants
Afghan insurgents to see
SEAL Team Six: Pentagon ramps up war of
words over White House leaks
Navy SEALs punished for revealing secrets to
video game designers
Federal judge bars release of Bin Laden
photos

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"There is an awareness that the threat of
retaliation is increased because of the action
against bin Laden," Mr. Gates said during a
town hall meeting at Camp Lejeune, a Marine
Corps base in North Carolina.
When Gates met with SEAL Team Six last
week, he said, team members expressed
concern for their continued anonymity and their
safety, "particularly with respect to their
families."
Before the May 1 strike, only a few key players
knew of it. President Obama said on "60
Minutes" that most White House staffers, and
even his wife, were kept in the dark. Gates said
he and the other officials who gathered in the
White House situation room to watch the raid
agreed they would "not release any operational
details" about the hunt for bin Laden.
"That all fell apart on Monday, the next day,"

said Gates on Thursday.
Indeed, more infbrmation about the raid continues to come out. CBS reported Thursday
that helmet cameras on all 25 ofthe SEALs recorded the entire raid, and that those
images are being analyzed to give officials a clearer picture ofwhat happened during
the 40 minutes the strike force was in the bin Laden compound.

http://www.csmonitor.com/USA/Military/2011/0513/SEAL-Team-Six-Is-their-safety-bein.

34117

SEAL Team Six: Is their safety being compromised? - CSMonitor.com

Additional details confirmed Thursday include that SEALs were fired upon by just one
person, a courier who fired shots from the compound's guesthouse, and that the
SEALS' first sighting of bin Laden was on the third-floor landing on the main house. A
SEAL fired at and missed bin Laden as the Al Qaeda leader retreated from the landing
to his bedroom. It also has been confirmed that no one in the main house was armed,
though weapons were close by.
The video also showed that the first SEAL to enter bin Laden's bedroom grabbed two of
bin Laden's daughters and pulled them aside. A second SEAL entered and pushed one
of bin Laden's wives aside after she moved toward him, and then shot bin Laden in the
chest. A third SEAL entered and shot bin Laden in the head.
Though new details about the operation have been revealed, "there has been a
consistent and effective effort" to keep SEAL Team Six identities secret. Gates said. "I
think that has to continue," he said.

Related stories
in SEAL Team Six success, lessons from 'horrible night' in Iran 30 years ago
Were Navy SEALs justified in shooting an unarmed Osama bin Laden?
Bin Laden videos as psy-ops: What US wants Afghan insurgents to see
SEAL Team Six: Pentagon ramps up war of words over White House leaks
Navy SEALS punished for revealing secrets to video game designers
Federal judge bars release of Bin Laden photos

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http://www.csmonitor.com/USA/Mi1itary/2011/0513/SEAL-Team-Six-Is-their-safety-bein.

34118

34119

Appellate Exhibit 477
Enclosure 3
12 pages
classified
"SECRET"
ordered sealed for Reason 2
and Reason 7 (govemment)
Military Judge's Seal Order
dated 20 August 2013
stored in the classified
supplement to the original
Record of Trial

34120

Appellate Exhibit 477
Enclosures
2pages
ordered sealed forReason7
(govemment)
Military Judge's Seal Order
dated20August2013
stored in the original Record
ofTrial

34121

Appellate Exhibit 477
Enclosures
classified
"SEORET/^^ACOM"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34122

Appellate Exhibit 477
Enclosure^^laceholder
Ipage
classified
"SECRET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34123

Appellate Exhibit 477
Enclosures
2pages
ordered sealed for Reason7
(govemment)
Military Judge's Seal Order
dated20August2013
stored in the original Record
ofTrial

34124

Appellate Exhibit 477
Enclosure7
^pages
classified
"SECRET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34125

Appellate Exhibit 477
Enclosures
classified
"TOI^ SECRET"
ordered sealed for Reasonl
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
is stored at the Offiee ofthe
Ceneral Counsels Central
Intelligence Agency pursuant
toAE^OO

34126

Appellate Exhibit 477
Enclosures J^laceholder
Ipage
classified
"SECRET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34127

Appellate Exhibit 477
Enclosures
classified
"SECRET^^ACCM"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34128

Appellate Exhibit 477
Enclosures I^laceholder
Ipage
classified
"SECRET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34129

Appellate Exhibit 477
EnclosurelO
^pages
classified
"SECRET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

\,/

v

Appellate Exhibit 477
Enclosure 10 _IJpdated
4 pages
classified
''SECRET''
ordered sealed for Reason 2
and Reason 7 (government)
Milttary Judge's Seal Order
dated 20 August 201 3
stored in the classified
supplement to the original
Record of TrLa\

34130

34131

Appellate Exhibit 477
Enclosurell
2pages
classified
"SECRET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

v

\,,

Appellate Exhibit 477
Enclosure 12
25 pages
c\assified
IISECRET''

ordered sealed for Reason 2
and Reason 7 (government)
Military Judge's Seal Order
dated 20 August 20 13
stored in the classified
supplement to the original
Record of TrLa\

34132

\-.

\r'

Appellate Exhibit 477
Enclosure 13
3 pages

c\assified

‖SECRET‖

ordered sealed for Reason 2
and Reason 7 (government)
Military Judge's Seal Order
dated 20 August 201 3
stored in the classified
supplement to the original
Record of TrLa\

34133

s

Unmarked redactions were present when Army received this document. Redactions in accordance with (b)(1)(B)
34134

UNITED STATES OF AMERICA

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

)
)
)
)
)
)
)
)
)

Govemment Motion for
in camera Proceeding
Under MRE 505(i)(2)
31 January 2013

RELIEF SOUGHT
(U) COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court hold an in camera proceeding pursuant to Military Rule of
Evidence (MRE) 505 to address the Govemment's motion forthe application of certain measures
to ensure the safety of a Govemment witness and to protect against the unauthorized disclosure
ofclassified information. Specifically, the Govemment requests that the Court enter an order:
(1) permitting a witness to testify under a pseudonym in civilian clothing and light disguise; (2)
limiting discovery and cross-examination regarding information that could reveal the tme
identity ofthe witness; and (3) limiting discovery and cross-examination by precluding defense
from questioning the witness regarding certain irrelevant and highly classified information,
including: his training for a specific classified mission, preparation for the mission, or details of
the mission's execution outside the scope of direct examination. Additionally, the United States
requests the Court permit the witness to testify at a secure off-site location in the Military District
of Washington, rather than the Fort Meade courthouse, for both national security reasons and to
ensure the safety of the witness. In furtherance of this motion, the Secretary of Defense claimed
the classified information privilege over information related to the identity of the witness, and
the Acting Director of the Central Intelligence Agency (CIA) claimed the classified information
privilege over information related to the still classified details of the UBL raid.

BURDEN OF PERSUASION AND BURDEN OF PROOF
(U) As the moving party, the United States has the burden of persuasion on any factual
issue the resolution of which is necessary to decide the motion. Rule for Courts-Martial (RCM)
905(c)(2). The burden of proof is by a preponderance of the evidence. RCM 905(c)(1).
(U) To obtain an in camera proceeding under MRE 505(i), the United States must show
good cause or claim of privilege under MRE 505(c), and must submit an affidavit demonstrating
that disclosure of the information reasonably could be expected to cause damage to the national
security in the degree required to warrant classification under the applicable executive order,
statute, or regulation. MRE 505(i)(2)-(3).

APPELLATE EXH1B1T_41*_
PAGE REFERENCED:
PAGE OF PAGES

34135

FACTS
(U)On2May 2011,Usama bin Laden (UBL)was lulled duringaraid on his compound,
located in Abbottabad, I^al^istan. The raid was carried out by United States govemment officials.
(U) OnlNovember 2012, this Court granted the Govemment'srequest to redact and delete
information from evidence the Govemment made available to the defense, ptirsuant to MRE
505(g)(2) The Courtfound that the redacted and deleted information was not relevant to this
case, that disclosure ofthe redacted and deleted inlbrmationrisk^edexposing intelligence
activities, sources, and methods, and that disclosure ofthe redacted and deleted infiormation
could reasonably cause damage to the national security ofthe United States ^^^AE3^^.
(U)On2I November 2012, the United States govemment declassified the following
informationfor use inthis case:
During the raid on Usama bin Laden'scompound in Abbottabad, Pak^istan, United
Statesgovemmentofficials collected several itemsof digital media. Eromthe
items ofdigital media, the following items relevantto this case were obtained: (1)
a letter Irom UBL to a member of al-^aeda requesting the member gather
Department of Delense material posted toWikiLeaks; (2)aletter from the same
member of al-^aeda to UBL, attached to which were all the Afghanistan
significant activity reports as posted by WikiLeal^; and (3) Department of State
information.
^^^AE^22
(U) The witness (hereinal^er^^heDoDOperator") that the United States seeks to protect
through this motion is one ofthe ^^UnitedStates govemment olficials" described above. At trial,
the prosecution intends to present evidence that the DoD Operator collected three pieces of
digital media during the raid (hereina^er^^digital media ') relevant to the misconduct that Ibrms
the basis of the Specification of Chargeland Specificationlof ChargelL and presentencing
proceedings. A^erthe UBL raid, the DoD Operatortranslerred custody ofthe digital media to
an agent ofthe Eederal Bureau oflnvestigation (EBI),who will also testify at trial as the next
linl^ in the chain of custody The Umted States is ottering tl^e DoD Oner^tor'^testi^nony tor
the sole nnrnoseot^authentication as the lirst linl^in the chain ot enstodyot^the digital
medi^.

34136

(U)Terrorist organizations and affiliated individuals seek: outthe tme identity ofDoD
operators and their families in order to target the personnel who participated in the raid on the
UBL compound. ^^^Enclosures2^unclassified reports^ and3^classified report provided^

^^^r^^.
(U) The United States presented its case-in-chiefto the defense onlNovember 2011and
lONovember 2011,which included notifying the accused and defense of the digital mediaand
the Govemment'sintent to use the digital media at trial.
(U)On3I.Ianuary 2013,the Secretary ofDelense claimed the classified information
privilege over infbrmation related to the identity of the DoDOperator and authorized the trial
counsel to claim the privilege on his behalf
Enclosures. This claim was based onareview
ofaclassified declaration andaclassified Original Classification Authority(OCA)determination
thatthe irdbrmation in the declaration is properly classified. ^^^Enclosurel^classified
declaration provided ^:^^^^^^^ and Enclosure5^classified OCA endorsement provided
This claim was also based on an endorsement by the Commander, U.S. Special Operations
Command,whoisalsoanOCA. ^^^Enclosure^^unclassified OCA endorsements.
(U)On3I.Ianuary 2013,the Acting Director, Central Intelligence Agency claimed the
classified infbrmation privilege, over inlbrmation related to the still classified details ofthe UBL
raid, and authorized the trial counsel to claim the privilege on his behalf
Enclosures, ^ i s
claim was based onareview ofaclassified declaration by an OCA,which determined the
infbrmation is properly classified. ^^^EnclosLireO.
(U) With both claims ofthe classified information privilege, the United States seek^ to
protect inlbrmation relatingto military plans, weapons systems, or operations; foreign
govemment inlbrmation; intelligence activities (including covert actions), intelligence sources or
methods, or cryptology; foreign relations or fbreign activities ofthe United States, including
confidential sources; vulnerabilities or capabilities of systems, installations, inlrastmctures,
projects, plans, or protection services relatingto the national security; and the development,
production, or use ofweapons of mass destmction.
WITNESSES/EVIDENCE
(U) The United States does not request any witnesses be produced forthis motion. The
United States requests that the Court considerthe enclosures, including those that are^^^^^^,
listed at the end ofthis motion.
LEGALAUTHORITY AND ARGUMENT

34137

I.

(U) INTRODUCTION

(U) MRE 505 is based on the Classified Information Procedures Act (hereinafter
"ClPA"), 18 U.S.C. App. 3 (2012). MRE 505 is procedure-oriented and states the procedures
and standards for the use of classified information in a court-martial. See United States v.
Lonetree, 31 M.J. 849, 856 (N.M.C.M.R. 1990), affd, 35 M.J. 396 (C.M.A. 1992). Additionally,
MRE 505 balances the interests of an accused's access to classified information to prepare his
defense against the United States' interest in preventing disclosure of the classified information.
Id. The ClPA authorizes the United States to use substitutions and redactions for its own
evidence. See UnitedStates v. Rosen, 520. F.Supp.2d 786, 790 (E.D. Va. 2007). Moreover,
under the ClPA, limited restrictions on an accused's access to evidence may not unfairly
prejudice him. See generally UnitedStates v. Mejia, 448 F.3d 436, 458 (D.C. Cir. 2006)
(discussing close analogies where the defendant is not entitled to access evidence reviewed by
the court in camera, including disclosures under the Jencks Act, 18 U.S.C. § 3500(b) (2012) and
Brady v. Maryland, 373 U.S. 83 (1963)). However, the ClPA does not displace the United
States' common law privilege in classified information. Rosen, 520. F.Supp.2d at 800.
(U) Upon invocation of the classified information privilege, the classified information
is not subject to disclosure. See MRE 505(i)(4)(B). To overcome the classified information
privilege, the accused must demonstrate that the information sought is "relevant and necessary to
an element of the offense or a legally cognizable defense and is otherwise admissible in
evidence." Id. The defense must present more than "a mere showing of theoretical relevance"
because the information "is at least helpful to the defense of the accused." United States v.
Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) (citing UnitedStates v. Roviaro, 353 U.S. 53, 60-61
(1957) (holding that the classified information privilege gives way for information that is
"relevant and helpfiil" or "essential to a fair determination of a cause")); United States v. ElMezain, 664 F.3d 467, 520-21 (5th Cir. 2011) (also known as "The Holy Land Foundation
Case") cert, denied 133 S.Ct. 525 (2012) (citing UnitedStates v. Smith, 780 F.2d 1102, 1110 (4th
Cir. 1985)); but see UnitedStates v. Libby, 453 F.Supp.2d 35, 42 (D.C. Cir. 2006).

34138

II.

(U) PROPOSED MEASURES TO PROTECT WITNESS IDENTITY

A. (U) The Court Should Permit the DoD Operator to Testify Under a Pseudonym.
in Civilian Clothing and Light Disguise
(U) The United States requests that the Court permit the DoD Operator to testify
in light disguise and civilian clothing. The light disguise requested does not violate the
accused's right to confrontation because the light disguise will only conceal the DoD Operator's
identifying physical features; the factfinder and accused will be able to assess the DoD
Operator's credibility based on his demeanor and responses. The civilian clothing will protect
affiliating the DoD Operator with a specific branch of service, as discussed below.
(U) An accused possesses the right to confront witnesses against him. U.S.
Const, amend. VI. The right to confrontation provides an accused the right to cross-examine
witnesses and physically to face those who testify against him. See Pennsylvania v. Ritchie, 480
U.S. 39, 51-53 (1987). In particular, "[t]he main and essential purpose of confrontation is to
secure forthe opponent the opportunity of cross-examination." Delaware v. Van Arsdall, 475
U.S. 673, 678 (1986) (quotingDawa v. Alaska, 415 U.S. 308, 315-16 (1974)) (emphasis
omitted). Thus, the opportunity to cross-examine a witness takes precedence over the
opportunity to confront a witness face-to-face. See Morales v. Artuz, 281 F.3d 55, 59 (2d Cir.
2002) (describing the Supreme Court's valuing cross-examination more than a face-to-face
encounter "by rejecting challenges to use out-of-court testimony that was subject to prior crossexamination") (citing California v. Green, 399 U.S. 149, 165-68 {1910); Douglas v. Alabama,
380 U.S. 415, 419 (1965); Mattox v. UnitedStates, 156 U.S. 237, 243-44 (1895); Wigmore on
Evidence § 1395 at 150). However, an accused'srightsto cross-examination and face-to-face
confrontation are subject to limitations. See Maryland v. Craig, 497 U.S. 836, 850 (1990);
Lonetree, 35 M.J. at 406. Specifically, under Sixth Amendment jurispmdence, public policy
interests in witness safety and protection of classified information justify limiting an accused's
face-to-face confrontation. See Lonetree, 35 M.J. at 410-11 (citing Coy v. Iowa, 487 U.S. 1012,
1021 (1988) (holding that face-to-face confrontation should be treated similarly to other
protections under the Confrontation Clause)). Indeed, "no govemmental interest is more
compelling than the security ofthe Nation." UnitedStates v. Abu Ali, 528 F.3d 210, 240 (4th
Cir. 2008) (holding that national security justifies limiting face-to-face confrontation) (quoting
Haig V. Agee, 453 U.S. 280, 307 (1981)).
(U) Additionally, a public policy interest limits an accused's right to unfettered
face-to-face confrontation where the reliability of the testimony is otherwise assured. See Craig,
497 U.S. at 850; see also Coy 487 U.S. at 1021 (stating that exceptions to right to meet face-toface "would surely be allowed only when necessary to further an important public policy").
Swom testimony by the witness, cross-examination by opposing counsel, and observation ofthe
witness's testimony by the factfinder assure the testimony's reliability, thereby satisfying Craig.
See Abu Ali, 528 F.3d at 241-42.

34139

(U) Here, the DoDOperator'sidentitywarrants protection, f(or both reasons of
national security and witness safety. ^i^^Enclosuresland3 Accordingly,alight disguise that
protects the DoD Operator'sidentity from being discovered also protects his safety and the
national security interest in his unit and involvement with specific operations. Furthermore, light
disguise does not violate an accused'sright to confrontation where it does not impairthe fact
finder'sabilityto assess witness credibility. ^^^^^^^^^.^,281F3dat60(decidingthatdark
sunglasses didnot impairthe jury'sabilityto assess the witness'credibilitysufficientlyto violate
the accused'sright to confrontation). Afact finder assesses credibility by observing evident
nervousness, body language, and demeanor. ^^^^^.at61-62. Consequently, the right to
confrontation is preserved where the fact finder combines observation of demeanor and
appearance with the substance and consistency of testimony,any hostile motive, and "all other
traditional bases for evaluating testimony "
Thus, the United States requests the Court
permit the DoDOperator to testify in civilian clothing and light disguise, to include no more than
but not necessarily each ofthe following components: eyewear, colored contacts, real or false
facial hair,awig, makeup, and/orfacial prosthetics.
(U) The light disguise requested herein satisfies the accused'sright to confront
the DoD Operator because the factfinderwill be able to assess the DoDOperator'sdemeanor in
conjunction with the substance ofhis testimony. The light disguise will prevent the accused or
counsel from identifying the DoD Operator; however, the light disguise will not change the
ability either to pose questions or evaluate the DoD Operator'sresponses. The light disguise
requested will only conceal the DoDOperator'sidentifyingphysical characteristics but not his
facial expressions. The light disguise is narrowly tailored because it will not obscure the DoD
Operator'semotive expressions and reactions while testifying. Accordingly,the DoD Operator's
demeanor, body language, nervousness, and facial reactions will be visible to the fact finder, and
the fact finder will possess the ability fiillyto assess the DoDOperator'scredibility.
Furthermore, the DoDOperator'stestimonywill be swom and subjectto cross-examination.
Thus, the requested light disguise will not violate the accused'sright toaface-to-face
confrontation.
B.
(U^ The Court Should Restrict Discovery and Cross-Examination That Could
RevealtheTme Identity of the Witness
^U^ The United States requests that the Court prohibit discovery and defense
inquiry into the specific background ofthe DoD Operator during cross-examination TheUnited
States requests that the Court instead authorize an altemative to providing detailed personal and
military infbrmation to the defense,which allows the DoDOperatorto be placed in his proper
setting.
(U) The Sixth Amendment does not create an absolute right to inquire fully
aboutawitness'background. ^^^.^^^^^^^^,35M.J.at405-06(citing^^^^^v.^^^^^^^^,390U.S.
129(1968);B^^^^v^^^^^^^^^^^.^,282US 687(1931))(determiningthatalimitationonthe
availability ofawitness'background for potential impeachment of the witness is nota^^^.^^

34140

violation the SixthAmendment);.^^^t^^.^^^^^^^,390USatI33 34(I968)(White,J,
concurring)(stating that cro^^-examination that might endanger the personal safety ofthe
witness should be prohibited). However, the prosecution has the burden of demonstratingabasis
to justify its proposed limit on cross-examination. ^^^^^^^^^^^,35M.J.at406(citing^^^^/^,
3 9 0 U S a t 133 34)
(U) An accused'sright to inquire into background details ofawitness in order
to test the credibility and weight oftestimony may be limited to protect the safety ofthe witness.
^^^^^^^^^^^,35MJat407;^^^^^^^^^^^.^v.^^^^^^^,410F2d 468,472(7thCir^l^^
(holding that "where there isathreat to the life ofthe witness, the right of the ^accused^ to have
the witness'stme name, address and place ofemployment is not absolute") Additionally,
protection of classified infbrmation serves asaproper basis for limiting cross-examination,
including about the witness'background details. ^i^^.^^^^^^^^,35M.J.at410("Wefurtherfind
that the Govemment, using the safety-of^persons and classified-infbrmation-privileges bases, has
met its burden of^coming fbrward with some showing ofwhythe witness must be excused from
answeringthequestion"');^^^^^^^,2MJ.atl22(statingthatthegovemment'sstrong
interest in protecting national security should be accorded "special deference ").
(U) An accused'sright to background information ofaprosecution witness may
be limited ifthe abridgement is not prejudicial to his defense. ^^^^^^^^^^^,35M.J.at406.
Prejudice accmes from the "denial ofthe opportunity to place the witness in his proper setting."
^^^^v^^^^^^^^^^^.^^282USat692;^^^^^^^^,35MJat406 Placingthe witness inhis
proper settingrequiresprovidingabasis on which cross-examination may be based forthe
purposes of contradiction or impeachment. ^^^^^^^^^^^,35 M.J. at 406. In^^^^^^^^,the
accused was not permitted to examineawitness conceming his true name, address, other
background infbrmation, and whether he had been aided or assisted by other covert agents during
amission.
at 407. In the instant case and in^^^^^^^^^identifyingawitness bya
pseudonym and identifying him asa"DoDOperator" places the witness in his proper setting and
environment. ^^^^^.at410. Additionally, the need fbr specific background infbrmation is
decreased where the witness'inherent reliability is increased based on his occupation.
(attributing more credibilityto an intelligence agent thanapolice informant who may have been
anarcotics addict and criminal); .^^^i^^.^^^^^^^^^^31M.J at 858(explainingthe need for
additional background information required fbr an informant). Here, the DoDOperator'stitle,
general occupation, and summarized background information increase his inherent reliability and
decreasetheneedforspecific background infbrmation.
(U)The DoD Operator'stme name, address, and other personal identifying
infbrmation are neitherrelevant nor necessary becatise they do not place DoD Operator in his
proper setting.
at 410. Providing grounds fbr cross-examination and impeachment
createsaproper setting.
at 406. The DoDOperator'spersonal infbrmation cannot serve
asameaningful basis fbr cross-examination and impeachment and therefore should be excluded
from inquiry Instead,apseudonym ("John Doe") and the title of"aDoDoperator" place the
DoDOperator in his proper context asaservice member who peribrms sensitive missions.

34141

^^.at410(determiningthatapseudonym and identification as an intelligence agent better
established the witne^i^'^settingthan "anything connected with ^thewitnes^'s^^tme identity'").
Placing the DoDOperator in his proper setting satisfies the accused'sright to confi^ontation.
i^
(U) Accordingly, the United States specifically requests thatthe Court limit
discovery and inquiry into the background ofthe DoD Operator during cross-examination. The
United States requests that the Court authorize the United States to withhold from the defense the
following personal information ofthe DoDOperator: (l)true name; (2)current and past
addresses; (3)contactinformation;(4) actual age;(5) marital status; and(6) actual rank.
Additionally,the United States requests that the Courtauthorize the United States to withhold
from the defense the fbllowing military infbrmation of the DoD Operator: (l)branch of service;
(2)command, unit, or organization; (3)priorunits of assignment;(4) service or unit specific
training, to include special weapons, infiltration/exfiltration techniques, and assessment courses;
(5) specific missions and deployments;(6) actual years of service; (7) actual years of active dt^y
status during service; (8) tincommon or branch of service awards; and(9) specialized
qualifications.
(U) The United States requests the Court authorizeasummarized altemative of
the detailed personal and military information described above fbr discovery and use at trial so
that the DoDOperator can be placed in his proper setting. ^^^Enclosure9(^^^^^^^ listing of
original and summarized infbrmation). With the summarized personal and military information
provided to the defense, the proposed limitations on discovery and cross-examination are
narrowlytailored because they restrict discovery and cross-examination to relevant topics,
thereby minimizing any prejudice to the accused.
IIL ^U^ PROPOSED MEASURESTO PROTECT CLASSIFIED INFORMATION
RELATED T O T H E UBL RAID
A. (U^ The Court Should Restrict Discovery and Preclude the Defense from CrossExamining Witnesses on Details Irrelevant to Authentication
(U^ The United States requests that the Court limit cross-examination ofthe
DoD Operator to the scope ofhis testimony establishing the at^henticity of evidence, ^ e
United States requests this limitation to protect irrelevant classified information pertaining to the
UBL mission from disclosure.
(U) Cross-examination should not exceed the scope of direct examination
exceptfbrmaners of witness credibility. MRE 611(b) Furthermore, cross-examination should
be limitedto relevanttopics.
MRE 402. Evidence is relevant i f i t has "anytendencyto
make the existence of anyfact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence " MRE 401;.^^^ MRE 401,

34142

ana1ysis(defining relevant evidence as evidence that "must involveafact ^whichis of
consequence to the determination ofthe action'").

(U)Giventheexceedinglynarrowscope ofthe DoD Operator'sproffered
testimony,which restricts the permissible scope of defense cross-examination, the limitations
requested do not offend the accused'sright to confrontation. The infbrmation sought to be
protected mission-specific training, intelligence leading to the mission, or details ofthe mission
not raised on direct examination is not relevant ornecessaryforthe accused to prepare fbrtrial.
The infbrmation sought to be protected will not be relevant attrial because it does make the
digital media evidence less genuine; the infbrmation would only serve to strengthen
authentication forthe purposes forwhich it is offered bythe GovemmentThe information
elicited duringtheDoD Operator'stestimony will be related strictlyto details necessaryfbr
authentication Accordingly, the proposed limitations are narrowlytailored to comport with the
limited scope ofthe proffered testimony.
B
^U^ The Court Should Limit Discovery and Preclude the Defense from Cross
Examining Witnesses on Details Irrelevant to the UBL Mission and Unnecessarvto Place the
Witness inhis ProperSetting

34143

(U) The classified information privilege additionally permits limiting crossexamination in this case. Classified information is privileged unless "relevant and necessary" to
an element of the offense or a legally cognizable defense. Lonetree, 31 M.J. at 857. MRE 505
balances the interest of an accused who desires classified information for his defense against the
interest of the United States in protecting that information. Id. at 857-58 (citing MRE 505
analysis, at A22-37 (1984)). hi Lonetree, the Court of Military Appeals upheld a limitation on
cross-examination based on an invocation of the classified information privilege because: (1) the
prosecution met its burden of "com [ing] forward with some showing of why the witness must be
excused from answering the question" by using the "safety-of-persons and classifiedinformation-privileges bases," and (2) the accused required nothing more to place the witness in
his proper setting. Lonetree, 35 M.J. at 410.

C. (U) Limitations Requested Permit A Meaningful Basis of Cross-Examination of Relevant
and Necessary Information
(U) The accused is entitled only to effective cross-examination, notto crossexamination that is "effective in 'whatever way, and to whatever extent, the defense might
wish.'" Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (quotingDe/aware v. Fensterer, 474 U.S.
15, 20 (1985)). Accordingly, militaryjudges retain "wide latitude" to impose reasonable limits
to mitigate harassment, prejudice, and confusion of the issues, witness safety, or interrogation
that is repetitive or only marginally relevant. See Van Arsdall, 475 U.S. at 679. Exposure ofthe
witness's motive for testifying is an important function of cross-examination. Davis v. Alaska,
415 U.S. 308, 316-17 (1974) (citing Greene v. McElroy, 360 U.S. 474, 496 (1959)); United
States V. James, 61 M.J. 132, 134 (C.A.A.F. 2005). Cross-examination also includes the right to
confront witnesses regarding bias, credibility, and tmthfulness. See United States v. Sullivan, 70
M.J. 110, 115 (C.A.A.F. 2010). However, classified information on which a witness does not
rely is irrelevant. See UnitedStates v. Hammond, 381 F.3d 316, 340 (4th Cir. 2004) (en banc)
(holding classified information not relied upon for formation ofopinion given during expert
testimony irrelevant), vacated, Hammoud v. UnitedStates, 543 U.S. 1097(2005), aff'd. United
States V. Hammoud 405 F.3d 1034 (4th Cir. 2005).

10

34144

r^. ^ L I M I T A T I O N S O N C R O S S E X A M I N A T I O N APPROPRIATE FOR
OTHER WITNESSESTESTIFYINGRELATEDTO UBL RAID

II

34145

V. ^U^CIOSEDSESSIONATSECUREIOCATIONINMDW
(U) The United States requests the Court authorize the DoDOperator to testify ata
secure off^site location in orderto provide adequate physical and information securityto protect
the witness and the national security.
(U)"[I]n all criminal prosecutions, the accused shall enjoythe right toaspeedy and
public trial"U.S.ConsLamend.VL The right toapublic trial also extends to the public'sright
to attend courtsmartial ^^^^^^^^^^^^^^.^v^^^.^^^,20MJ 433,435 3 6 ( C M A 1985)
However,'^he right toapublic trial is not absolute." ^^^^^^^,2M.J.atI20. In particular,
MRE 505 authorizes the closure ofacourt-martial during presentation of classified infbrmation.
MRE 505(^)(5). Additionally, RCM 806 states that courts-martial shall be open to the public
unless: (l)thereisasubstantialprobabilitythat an overriding interest will be prejudiced ifthe
proceedings remain open; (2) closure is no broader than necessaryto protectthe overriding
interest; (3) reasonable altematives to clost^e were considered and fbund inadequate; and(4)the
militaryjudge makes case-specific findings on the record justifying closure. ^^^RCM
806(b)(2);.^^^.^/^^,.^^^^^
(U) In orderto ensure the safety and security of the DoDOperator during trial and
protect against the unatithorized disclosure ofclassified information both overriding interests
the Court should permit the witness to testify duringaclosed session of the court-martial and ata
secure off^site location with limited and controlled access. The DoD Operator'sidentity risks
being revealed ifhe is seen or his image is recorded in connection with this cotirt-martial.
Permitting members ofthe public or non-authorized personnel to watch
ofthe DoD
Operator'stestimony increases the risk of revealing his identity, even if the DoD Operator is in
light disguise If the DoDOperator'sidentity is revealed orthe public or non-authorized
personnel can follow the DoDOperator into and out of the courtroom, it will place him at
substantial personal risk and compromise his abilityto complete future missions.
Enclosure
L
(U) Furthermore, allowing the DoDOperatorto testify duringaclosed session and at
asecure location does not materially prejudice the accused because his rights to confrontation
will be protected in accordance with constitutional principles.
Parts I - I I I , . ^ ^ ^ ^ . The
courtroom atFort Meade is inadequate to provide required security,a^ it hasaperimeter and
three points ofingress and egress that arc all visible to the public. Moreover,duringthc courtmartial, all persons entering and exitingthe building will be conducting business associated with
the court-martial; their presence will associate their activities with the court-martial in public
view. Therefore, any location where DoD Operatortestifies must be secure and cannot be
associated solely with the court-martial The MDW secure location will provideaperimeter
with controlled routes of ingress and egressfor authorized persons, and the secure location will
be associated with other missions, thus allowing the DoDOperator in light disguise to enter and
exit the building without association with the court-martial.

12

34146

(U) The Court should be closedforthe entire testimony of the DoDOperator, which
is no broaderthan necessary to protect the national security interest in his identity. There is no
alternative. The classified content ofthe material the witness will address, and notjust its overall
significance, is necessary and relevanL Therefbre, unclassified summary is untenable. Finally,
the witness will be testifyingtonuanced information requiring complicated explanation and must
remain free to describe it to the fact-finder and parties as they may require. Therefbre, the DoD
Operator'stestimony cannot be reduced to code No stipulations have been agreed upon to date.
Nonetheless, stipulations may be useful to memorialize the admissibility of materiaL Fina11y,fbr
the reasons articulated in Enclosures1and8[declarations], the infbrmation at issue is currently
classified and will be at the time ofthe trial; therefbre, declassification is not warranted.
(U) The MDW sectire location will be able to hold all parties andapanel, i f
necessary. The prosecution will ensure that all logistical requirements are satisfied, to include
providingtransportationbetweenarally point for all designated personnel and the MDW secure
location. Consequently, the United States requests the Court grant its narrowlytailored request
to take the ^^^^^^ testimony of the DoDOperator atasecure MDW location inaclosed session.
VL

(U)NOTICEIAWMRE^0^i)(4)(A)

(U) Friorto an ^^^^^^^^proceedingthe United States "shall provide the accused
with notice ofthe infbrmation that will be at issue." MRE 505(i)(4)(A). This motion serves as
the required notice forthe accused and defense counseL
VH.(U^ADVERSE RULING
(U) Should the Court find the proposed altematives to full disclosure are not adequate
and do not afford the accusedafairtrial, then the United States requests the opportunityto
address the Courtis findings with the relevant govemment agencyto determine whethera
different altemative is appropriate and file that altemative with the Court.
CONCLUSION
(U) The United States respectfully requests that the Court hold an ^^^^^^^^ proceeding
and thereafter enter an order: (l)permitting the DoDOperatorto testify t^derapseudonym in
civilian clothing and light disguise; (2) limiting discovery and cross-examination regarding
infbrmation that could reveal the tme identity of the DoD Operator; and (3)limiting discovery
and cross-examination by precluding defense from questioning the DoD Operator regarding his
training foraspecific classified mission, preparationfor the mission, or details of the mission's
execution not raised on direct examination Additionally, the United States requests the Court
permitthe DoDOperatorto testify inaclosed session atasecure off-site location in the Military
District ofWashington, ratherthan the Fort Meade courthouse, to ensure the safety ofthe
witness.

13

34147

ASHDEN FEIN
MAJ, JA
Trial Counsel
(U) I certify that I served or caused to be served a true copy of the above, via SIPRNET
email, to Mr. David Coombs, Civilian Defense Counsel, though the defense security experts on
31 January 2013.

ASHDENFEIN
MAJ, JA
Trial Cotmsel
11 Enclosures
1. Command Declaration [classified, submitted ex parte]
2. Witness Protection Reports (Unclassified)
3. Witness Protection Reports (Classified) [classified, submitted ex parte]
4. SecDef Claim of Privilege [unclassified, submitted ex parte]
5. Command (OCA) Memorandum [classified, submitted ex parte]
6. Command (OCA) Memorandum [unclassified, submitted ex parte]
7. Acting Director CIA Claim of Privilege [classified, submitted ex parte]
8. CIA Declaration [classified, submitted ex parte]
9. Original and Summarized Witness Information [classified, submitted ex parte]
10. Example of Prosecution Direct Examination [classified, submitted ex parte]
11. Example ofDefense Possible Lines of Cross-Examination [classified, submitted ex parte]

14

34148

Appellate Exhibit 47^
41 pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34149

UNITED STATESOF AMERICA

Manning,BradleyE.
PFCU.S.Army,
HHC,U.S.ArmyCarrison,
JointBaseMyerHendersonHall
Fort Myer, Virginia 22211

Prosecution ResponseToScheduling
Orders 39a Session On Closure
and Motion to Close the Courtroom
forSpecifiedTestimony
Enclosurel
31January2013

34150

Enclosurel-Scrints
Script for Closed Grunden Hearing (if ordered)
(1) United States files "Request to Close the Court fbr Purposesoflntroducing and Maintaining
Classifiedinfbrmation;"
(2) Military Judge conducts anArticle 39(a) hearing to discuss whctherCourt will be closed;
(3) United States requests that the Article 39(a) hearing be closed;
(4) Article 39(a) hearing takes place and parties outline what testimony/evidence they anticipate
will be classified, and discuss which portions will be closed and which will be open.
TC^ Ma'am, the United States requestsaclosed hearing to determine if any classified
infbrmation in this case should be heard inaclosed session.
MJ^ (Reviews the written request.)
MJ^ Thegovemment wishes to present evidence in support ofits request inaclosed session, is
that corrects
TC: Yes, Ma'am.
MJ^ I w i l l now close this courtroom. I w i l l callarecess, and when we retum, the only
personnel in the courtroom will be the three defense counsels, three trial counsels, the Court
Reporter, the Court Security Oflicer, the Accused, those personnel detailed to the defense and
prosecution teams, the representatives ofthe relevant government agencies, the Military Judge's
support paralegal, and myself The audio and video feeds to the media center and the theaterwill
be severed.
MJ^ The Court-Martial is in recess.
(CONDUCT CLOSEDSESSIONDRILL)
MJ^ This hearing is called to order. Let the record reflect that the hearing is now closed. The
audio and video feeds to the media center and the theater have been severed. The only personnel
in the courtroom are three defense counsels, three trial counsels, the Court Reporter, the Court
Security Officer, the Accused, those personnel detailed to the defense and prosecution teams, the
reprcsentativesofthe relevant government agencies, the Military Judge'ssupport paralegal, and
myself
TC^ This portion ofthe Court-Marital hearing is classified
^^^^^^.^^^.^^^^^^^/^.^.^^^^^^^^^^v^^."

(.^^^^^

TC: Ma'am, the United States requests you to close the Court Martial Court Martialfi^omthe
public fbr (^^^^^^.^^^B^^^^^^i^/1^^^^^^^^^^^^^^/) under RCM 405.
MJ^ Onwhatgrounds7

34151

TC: The United States has reason to believe (the testimony/the evidence) may disclose classified
information. The United States anticipates that the testimony/evidence will disclose information
relating to (provide an undassified summary of the classified testimony/evidence).
MJ: Defense, do you have any objections?
DC:
M J : Govemment, can you confirm the information is classified?
TC: Yes, Ma'am. The United States offers (declaration or affidavit) to confirm that this
testimony/evidence has been properly classified (classification level). Additionally, the United
States requests that the Court Security Officer review the documents in question to determine
their apparent classification level based on their markings and substance.
{TC hands the documents in question to the Court Security Officer.)
TC: {TC gives cow to defense) The United States is giving you what [(will be marked for
identification as an Appellate Exhibit)(has been previously marked as Appellate Exhibit (#))(has
been previously marked as enclosure (#) to Appellate Exhibit (#))] which is the {classification
review/declaration/affidavit) for this information.
MJ: Defense, do you have any objection to this exhibit?
DC:
MJ: This document is labeled Appellate Exhibit {exhibit number), {ifnecessary). Govemment,
please proceed.
TC: Closing the Court-Martial is necessary to protect this classified information in accordance
with RCM 806(b)(2) and MRE 505(i). The value of protecting this classified information,
specifically (list each item and give security damage levels for each), the disclosure of which
\{CONFIDENTIAL; "could reasonably be expected to cause damase to national security")
(SECRET; "could reasonably be expected to cause serious damage to national security") (TOP
SECRET: "could reasonably be expected to cause exceptionally grave damage to national
security")], outweighs the value of an open Court-Martial. No lesser methods short of closing
the Court-Martial are available. Closure of the Court-Martial is necessary for the prosecution to
(explain how prosecution intends to use the testimony of each specific witness/each specific piece
of evidence (elicit classified testimony, discuss classified information in evidence)).
Furthermore, closure is necessary to ensure the accused receives a thorough and impartial trial.
The United States requests you only close the Court-Martial for those specific portions of the
(testimony/evidence) wherein this classified information may be disclosed. The United States
requests you to make a finding in the record supporting the closure, as required under RCM
505(i)(4)(C).

34152

MJ: Defense, would you like to be heard on diis matter?
DC:

(IF APPROVED)
MJ: Imake the following findings of fact:
(1) that the ^^^^^^^^B^^.^^^^^^^)has been properly classified ^/^.^.^^/^^^^^^^
^j^^^^.^^^.^o^^^^/^.^.^^/^^^^^^B^^^v^^^^);

(2) that protecting this classified infbrmation is an overriding interest;
(3) that the overriding interest of protecting this classified infbrmation outweighs the
value ofan open Court-Martial; and
(4) that othermethods ofprotecting the infbrmation were considered, but no lesser
methods short ofclosing the Court-Martial can be used to protect that interesL TheCourt
Martial shall be closed only fbr those portionsoftestimony wherein classified infbrmation may
be disclosed.

(IFNOT APPROVED)
MJ: [(the document is not properly classified) (protecting this classified infbrmation is not an
overriding interest) (the oveiriding interest ofprotecting this classified infbrmation does not
outweigh the value of an open CourtMartial)(othermethods ofprotecting the infbrmation will
be used (.^^^^^ 0^/1^^ ^^^^^^.^))(
)j
MJ: I w i l l now callarecess, and when we retum, all spectators and media will be seated in the
gallery,and the audio and video feeds to the media center and the theater will be restored. A l l
parties to the closed hearing will be presenL I w i l l then open the hearing.
TC:The preceding portion of the Courtmartial was classified

(state highest

classification level).
MJ: The Court-Martial is in recess.
(CONDUCTOPENSESSIONDRILL)
MJ: This hearing is called to order. Let the record refiect that the hearing is now open. The
audio and video feeds to the media center and the theater have been restored. All spectators and
media are now seated in the gallery. All parties present in the closed hearing are again presenL
TC: This portion of the Court Martial is unclassified.

34153

M J : Prior to opening this hearing,lhaye secured all classified material not in use in the
courtroom safe, and the Court Security Officer has completed the courtroom opening checklisL I
make the fbllowing findingsoffacL (Summarize findings of fact(unclassified)).

34154

Script to Close the Courtroom Generally
MJ: I w i l l now close this hearing. I w i l l callarecess, and when we retum, the only personnel in
the courtroom will be the three defense counsels, three trial counsels, the Court Reporter, the
Court Security Officer, the Accused, those personnel detailed to the defense and prosecution
teams, the representatives ofthe relevant government agencies, the Military Judge'ssupport
paralegal, andmyself The audio and video feeds to the media center and the theaterwill be
severed.
M J : The investigation is in recess.
(CONDUCT CLOSEDSESSIONDRILL)
M J : This hearing is called to order. Let the record refiect that the hearing is now closed. The
audio and video feeds to the media center and the theater have been severed. Theonlypersonnel
in the courtroom are the three defense counsels, three trial counsels, the Court Reporter, the
Court Security Officer, the Accused, those personnel detailed to the defense and prosecution
teams, the reprcsentativesofthe relevant government agencies, the Military Judge'ssupport
paralegal, and myself
TC: This portion ofthe Court-Martial is classified
^.^^^^^^^/^.^.^^^^^^^^/^v^/)."

(.^^^^^^^^^^.^^

34155

Script to Open the Courtroom
MJ: Iwill now open the hearing. Iwill callarecess, and when we retum, all spectators and
media will be seated in the gallery,and the audio and video feeds to the media center and the
theater will be restored.
MJ: The investigation is in recess.
(CONDUCTOPENSESSIONDRILL)
MJ: This hearing is called to order. Let the record refiect that the hearing is now open. The
audio and video feeds to the media center and the theater have been restored. All spectators and
media are now seated in the gallery.
TC: This portion ofthe Court-Martial is unclassified.
MJ: (Summarizefindingsof fact (Unclassified))

34156

IFUNPLANNED...
TC: Ma'am, the United States requests an inunediate closed session to determine whetherthis
portion of theCourt-Martial should be closed.

34157

ADMINISTRATIONOFOATH (BY GOVERNMENT)
TC: Do you swear or affirm that the testimony you shall give in the case now being investigated
shall be the tmth, the whole truth and nothing but the tmth, so help you God?
WIT:Yes/No
TC: Please be advised that while you are testifying, if you are asked any question that you
believe may requireaclassified response, you haveapersonal responsibility to notifythe
Military Judge prior to answering. At no time should you disclose any classified infbrmation
while this hearing is in an open session.
TC: Please state your name fbr the record.
W I T : (Response)
TC: Please state yoLir unit ofassignment or place of employmenL
WIT: (Response)

34158

BAILIFF SCRIPT FOR COURTROOM CLOSURE

"LADIES AND GENTLEMEN, THE
COURTROOM HAS NOW BEEN
CLOSED. PLEASE RISE AND
EXIT THE COURTROOM
THROUGH THE DOOR BEHIND
YOU. SECURITY PERSONNEL
WILL ESCORT YOU OUTSIDE.
THANK YOU."

34159

UNITED STATESOF AMERICA
v^
Manning,BradleyE.
PFCUSArmy,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Prosecution ResponseToScheduling
Order: 39a Session On Closure
and Motion to Close the Courtroom
forSpecifiedTestimony
Enclosure2
31 January 2013

34160

Enclosure 2 - Battle D r i l l Checklists
Close Courtroom Battle Drill
Task: Close the Courtroom to Publish Classified Information
Conditions: TC or DC desires to publish classified information or hear classified testimony. The MJ has
previously published guidance advising all spectators of the need to clear the courtroom for classified sessions.
Standards: Courtroom is closed fo all spectators. Required information is published to authorized parties
only. MOC and Theater connections securely severed.
TASK STEPS AND PERFORMANCE MEASURES:
1.

Bailiff makes the closure announcement to fhe gallery.

2.

MP advises DES inner cordon guards that the courtroom has been closed.

3.

MPs physically clear the courtroom of all personnel.

4.

MP and one escort search and clear spectators from the building.

5.

Court Security Officer disengages the audio and video feed cables to the MOC and fhe theater.

6.

MP post as guards outside the courtroom entrances.

7. Operations LA verifies the audio and video feed cables to the MOC and the theater have been severed
and reports status to Court Security Officer.
8.

Accused is escorted to waiting area.

9.

All remaining authorized personnel will store cell phone in the lock box outside the courtroom.

10. Court Security Officer verifies that only authorized personnel re-enter in the courtroom based on security
badges and the MJ instructions.
11. Government and Defense security experts verify that only authorized personnel remain in Government
and Defense trailers, and report their status to the Court Security Officer.
12. Court Security Officer retrieves classified information and equipment from courtroom safe, as necessary.
13. Court Reporter switches to the classified recording equipmenL
14. If digital information is to be displayed, Court Security Officer retrieves the classified laptop from fhe
courtroom safe and Court Reporter connects the laptop to the display port at his station.
15. Court Security Officer completes closed hearing checklist and hands if fo fhe Court Reporter for inclusion
in the record.
16. (At next recorded session) TC announces on fhe record, "This portion offhe Court-Marital hearing is
classified
(state highest expected classification level)."

34161

Open Courtroom Battle Drill
Task: Open the Courtroom for LInclassified Llse
Conditions: Classified hearing portion has been completed. Military Judge has ordered fhe courtroom
opened. TheTrial Counsel has announced fhe highest classificafion level ofthe preceding session on fhe
record.
Standards: Courtroom is opened to all spectators. MOC and Theater connections restored.
TASK STEPS AND PERFORMANCE MEASURES:
1.

Ifdigitalinfonnafion was displayed,fhe Court Security Officerwill disconnectfhe classified display laptop.

2.

Court Reporter stops recording and switches tothe unclassified recording equipmenL

3. Court Security Officer secures all originals of any classified documents and the classified recording laptop
in the MJ drawer offhe courtroom safe.
4. Court Security Officer secures all classified material from fhe TC in the TCdrawer ofthe courtroom safe,
including classified notes.
5. Court Security Officer secures all classified material from the DC in fhe DC drawer ofthe courtroom safe,
including classified notes.
(PAUSE UNTILMJCOMPLETESTHE UNCLASSIFIED SUMMARY)
5.

CourtSecurityOfficerreviewsfheMJ unclassified summaryforclassified material.

7
CourtSecurifyOfficersecuresallclassifiedmaferialnofinusebyfheMJinfheMJ safe, including
classified notes.
8.

Court Security Officer locks fhe courtroom safe.

9
CourtSecurityOfficercompletesopenhearingchecklistand hands itto theCourtReporterforinclusion in
the record.
10

MJgivesfheorderfoopenthecourtroom

11
TheTCSupportParalegalcallsthePOCnumbersaftheMOCandfhefheafertonotifyfhefeedwillbe
restored in5minutes.
12. Bailiff advises OES personnel thaf the courtroom has been opened.
13. Escorts post in the courtroom
14. After5minutes, the TCSupport Paralegal calls fhe POC numbers atthe MOC and the fheaferto verify fhe
all devices are off.
15. Court Security Officer engages fhe external audio and video feed.
18. (Af next recorded session) TCannounces on fhe record,"This portion ofthe Court-Martial is unclassified."

34162

Closed liearing Checklist

All spectators have been cleared ouf offhe courtroom.
All remaining personnel possessavalid,SJAissuedsecurltybadge
Allfrailerswithacourtroomfeed have been checked by the Government
and Defense security experts.
Guards are posted outside courtroom entrances.
Classified recordingequipmentisinplaceandoperafional
Audio and video feed to fhe MOC and the theater has been severed.

Siqned

Time

Date

34163

Openl^earingChecklisf
Classified display laptop (if used) is disconnected and secured.
Secured all classified material from the MJ Support Paralegal.
Secured all classified material from fhe TC.
Secured all classified material from fhe DC.
MJ unclassified summary contains no classified infonnation.
Secured all classified material from the MJ.
The courtroom safe is locked.
LInclassified recording equipment is in place.

^^^^^^

^^^^

Oate

34164

UNITED STATESOF AMERICA

Manning,BradleyE.
PFCUSArmy,
HHC,U.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Prosecution ResponseToScheduling
Order: 39a Session On Closure
and Motion to Close the Courtroom
forSpecifiedTestimony
Enclosure3
31 January 2013

OZ




.

lg :5



2. 5.95
..

Unmarked redactions were present when Army received this document. Redactions in accordance with (b)(1)(B)
34166

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

)
)
)
\

I

Prosecution Response To Scheduling
Order: 39a Session On Closure
and Motion to Close the Courtroom
for Specified Testimony

)
)
>

1 February 2013*

(U) On 11 December 2012, this Coinl ordered the United States to ^ v i d e infoimation
on the protection of classified information, by presenting the Court with (a) a list of all classified
information for which it intends to request a closed session during trial: (b) an explanation as to
whether declassification, redactions, substitutions, or other altematives will allow for evidence
presentation in open court; and, ifsuch altematives are not possible, (c) an indication as to why.
Section I ofthis response provides the requested infomiation and explanations. Sections II and
m address the other directives in the Court's Scheduling Order: sfxcifically, Section I I outlines
the procedures for courtroom closure, should that protection be warranted, and Section HI
addresses whether the discussion ofthese issues need occur wdiolly or partly in caniera. See AE
444 at 2(a)-(c).
RELIEFSOUGHT
(U) The United States respectfiilly moves the Court to order courtroom closure to hear
the classified testimony ofthe thirty-seven witnesses outlined below. I f following response by
the defense, the Court finds closure appropriate, the United States will provide the Court with a
draft closure order based on the infonnation articulated in this motion.

BURDEN OF PERSUASION AND BURDEN OF PROOF
(U) The burden of proof on any factual issue, the resolution of which is necessary to
decide a motion, shall be by preponderance ofthe evidence. RCM 905(cXl)- The burden of
persuasion on any factual issue, the resolution ofwhich is necessary to decide a motion, shall be
ou the moving party. RCM 905(cX2).
FACTS

' CU)Thismotion was originally filed Government that it did not accept the motion as it was signed by CPT Katherine Mitidca. a person who has not been
detailed/qualified/ceitifiedtothis case on the record. Although CPT Mitroka vms detaiQed to this case by the SJA,
USAMDW. on 2 November 2012. her detail has not been announced on the recwl The Go\'enunent resubmits its
motion.

1

APPELLATE EXHIBIT
PAGE REFERENCED:
PAGE OF PAGES

34167

(U) The Accused is charged with aiding the enemy by giving mtelligence, one specification
ofdisorders and neglects to the prejudice ofgood order and discipline and service discrediting,
e i ^ t specifications a11egiugmisconductinviolationof18US.C.^ 793(e),fivespecifications
allegingmiscondnct in violation ofl8U.S.C.^641,two specifications allegii^ misconduct in
violation ofl8U.S.C.^ 1030(a)(l), and five specifications of violatingalawhil general
regulation, in violafion ofArticles 104,134,and 92, UnifomiCodeof^lilitaryJushce(UCMJ)
Cliarge SheeL Atotal ofnine charged specifications allege the unauthorized possessi^ or
disclosure ofdassifiedinformation.^^^^ Since its first proposed court calendar, dated21
Febmary 2012,the Prosecution has notified theCourt thataseparate Grunden session would he
required in order to evaluate and estabhshprocediires tor managing die high volume ofclassified
intimation involvedin the case. ^ ^ A E I .
( U ) A t ^ i s time, the United States intends to call 141 witnesses ^^^AE Government's
31January 2013 Witness L i s t ^ f i l i n g Approxiniately73 of those witnesses'testimony will
involve classifiedinlbrmation. ^ ^ ^ ^ The United States requests courtroom closure to take
classified testimonyfbr less than half ofthese witnesses
LEGALAL^ORITY
(U)"[I^n all criminal prosecutions, the accusedshallen^oytherighttoaspeedy and
^ b l i c trial." US.ConsLamend V I The right toapuhhc trial also extends to the public'sright
toattendcourtsmartiaL ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ v . ^ ^ . ^ ^ ^ ^ , 2 0 M J 433,435 3 6 ( C M A 1 9 8 5 )
However."the right toapubhc trial is not absolute." C B ^ ^ ^ , 2 M J a t l 2 0 In particular,
MRE 505 authorizes fhe closure ofacourt-martial during presentation of classified inlbrmati^
MRE505(^)(5) Additionally.RCM 806 states that courtsmartial shall be open to the public
unless: (l)thereisasubstantialprobabilitythat an overriding interest will be prejudiced if the
proceedings remain open: (2) closure is uo broader than necessary to ^^tect the overriding
interest; (3)reasonab1e alternatives to closure wereconsidered and fotmd inadequate: and (4)the
mihtary judge makes case-specific findings on the record justi^^g closure . ^ R C M
806(b)(2);^^.^^^,.^B^^^
RESPONSE TOCOURTS11DECEMBER2012RULINGAND BASIS FORRELEIF
L

INFORMATIONPROTECTIONS
A.

Practical ImpIemeutationolAIteruatives

(U) Below, the United States sets fbrth its understanding ofhow the altematives articulated
bythe Court are practically implemented and identifies their hmitations Specifically.it covers:
declassification, redaction, and substitutions, as well as stipulations, use ofcode words or special
names, use of screens, disguises, code names fbr classified witnesses, electronic imagery.and the
"silent witness mle'^. They are organized below into categories based on the ^ ^ o ^ ^ ^ ^ ^ ^ a
given alternative is designed to protecL

34168

1.

rU) Alternatives Useful for Doctmientary or Physical Material Only

(U) Redactions. Redaction entails blocking out words and j^brasesfiromwritten
documents to avoid disclosure to an audience imauthorized to view the hidden infoimation. It is
useful only when dealing with written material whose value derives not firom the hidden content
but firom some other imclassified attribute or context.
(U) Example: The legal importance of a doatment could exist solely in its
designation as "classified". If relevant and necessary, this attribute could be presented to the
fact-finder via the introduction of the document - with all substantive content reacted and onfy
header.footer classification markings available for open viewing.
(U) Imagery. Classified infonnation could be shown to a limited population through
the use of either an electronic display, such as a screen or monitor, or through a non-electronic
display, such as a carefully-positioned poster or limitedly-distrihuted print-out. Yet, by their
very naftffe, such actions must be applied to an actual physical document or image and cannot be
apphed to oral testimony. Additionally, imagery alone does not allow for the classified content
displayed to be openly discussed or evaluated.
(U) Example: Classified crime scene photos could be shown to the parties and factfinder, for their contextual reference, without that location needing to be substantivefy discussed.
(U) Silent Witness Rule. The Silent Witness Rule (SWR) would allow for evidence
to be presented by a witness to the fact-finder and the parties while being withheld fi-om the
public. Under the SWR, a classified document is introduced via witness testimony conceming
the facts necessary to authenticate and admit the doctmient without discussing its substantive
material. Instead, the document may have portions marked or tabbed, so that counsel and the
witness can discuss sections of the dociunent in an unclassified way while providing the Court
with the classified point of reference. However, the SWR is appropriate when the Court's
attention need only be directed to documentary content that is otherwise self-explanatory, or for
the authentication and description ofphysical or documentary evidence. That is, like with
imagery, the SWR does not allow classified analytic content (such as evaluation of harm/damage
or expression ofnational security interests at stake) to be substantively discussed.
fU) Example: Tliis nde could be used in conjunction with the types of imagery
described above. For example, a document could be displayed on a screen for the fact-finder
and forties, and then referenced by the witness using terms like "upper tight hand comer" or
"the third paragraph. " Alternatively two identical pictures could be displayed before the Court
- one from the accused's personal media and the otherfrom a classified database A witness
could draw the Court's attention to the evidence at issue by circling/highlighting certain sections
with a special pen - the markings of which are only visible to those persons viewing the
document on the monitor.

34169

(U) Physical Screens and Disguises. Screens or disguises may be used to (H-otect the
identity or description of a particular witness. However, as such devices only prevent visual
commimication. They would not protect the substance of classified content that witness may
have to orally convey.
(U) Example: A person associated with an operation or organization whose
connection to these proceedings is classified could appear hi a disguise or testify from behind a
screen, so that his/lier identity is not disclosed to the general public. Such measures wotdd
however leave the content of that person's testimony unprotected.
2.

(U) Altematives Usefiil for Written or Oral Material but with Limited Apphcabihtv

(U) Substitution. Substitution entails providing a summary or altemative description
of classified material. Substitutions could potentially be employed for either oral or
doctmientary evidence. However, substitutions and summaries are helpful only i f the legal
importance ofthe testimony derivesfi^omthe imclassified significance ofthe subject matter and
not firom the classified detailsfi^omwhich that significance arises.
(U) Example: Much like a filing that may include classified and tmclassified
paragraphs when making an argument, a witness may be able to make some statements
unclassified by summarizing impact in a non-specific way, without cotntnunicating classified
specific examples ofthat impact. However, like in a filing, the fact-finder may need additional
context in order to adjudge true impact, or the cotmsel may be need to hear specific examples in
order to challenge the thoroughness of the witness's evaluation of them. Therefore, if onfy
substitutions and summaries are available for the evaluation of otherwise classified information,
the accused's ability to fiilly and thoroughly cross-examine a witness coidd be atrtailed.
(U) Code Words/Names. The use of code words and names to convey infcnmation
would require the development and use ofa legend to keep track ofthe altemative expressions.
Like substitution and summary, such an altemative could be helpful to ehcit evidence in written
or oral form. However, when used by a live witness, the use of code or altemative descriptions
is appropriate only in situations which require the protection of single names or uncomphcated
material. For three main reasons, such an "altemative" is not viable for witnesses wbo w i l l ue«d

to contextualize his/her testimony and explain nuanced and comphcated issues. First, if applied
to complicated material, direct examinations would become tmduly confiising and burdensome.
The testimony would soimd similar to the following: "This dociunent, which describes 'Country
A ' providing 'Information 24' to 'Coimtry Q' relates to the national defense for Reason 89'.
The document was closely held and might be useful to the enemy for 'Reason 412'." Second,
like with substitutions, reliance on code names and words can restrict an accused's abihty to
cross-examine witnesses. For exarcple, when answering cross-examination questions, a witness
would have to take time to locate the code words and reasons appropriate for his answer from
wittiin a compendiiun developed for trial and then would be confined to rely on these pre-set

34170

answers, which may not adequately capture die nuance and complexity the witness may wish to
convey. Finally, the whole point behind using substitute words and legends might be defeated
by the context in which they are implemented. That is, unauthorized listeners may be able to teil
what is being discussed through context clues.
(U) Example: Code or altemative words/names could be used to prevent closure if a
witness providing an tmclassified summary of an operation, also used different names for
individuals itrvohed in the operation. Like a disguise or screen described above a code name
can protect the identity ofwitnesses - warranted either because their connection to th^e issues
is classified, or because they remain involved in an on-going classified operation being
discussed.
3.

(U) Alternatives Rendering Protection of Infonnation a Non-issue

(U) Declassification. Material correctly classified {See Executive Order 13526, Sec.
3 .1(e)) for die national security reasons outlined in Sections 1.2 and 1.4 of Executive Order (EO)
13526 is subject to declassification in three circumstances. First, when protection is no longer
warranted, an OCA or owning agency may declassify the material sua sponte or in response to a
request. See Id. at Sec.3.1(b). In either evait the decision hangs on whether reasons for
classification still exist. See Id. at Sec.3.5(c). Second, an agency head has detennined
declassification is in the pubhc interest. See Id. at Sec. 3.1(d). And finally, it is qypropriate
when the material is at least twenty-five (25) years old, of statutorily-defined historical
significance, and not subject to a specified exception. See Id. at Sec. 3.3. Therefore
declassification is not a viable alternative when infonnation is recent, has not been found by an
agaicy head to be in the public interest, and still requires protection in the interests ofnational
security. All of the compromised classified information in this case is recent. Much of the
material at issue in this case has undergone a classification review and not been declassified. In
short, the infonnation still implicates national secmity interests in need of the protection
classification affords.
(U) Example: A presidential paper written three decades ago may be atttomalicaJly
declassified.
(U) Stipulations. The United States is willing to consider stipulations of fact and/or
expected testimony. Bodi parties must agree to a stipulation of fact and/or expected testimony.
Such an agieement may obviate the need to call one or more witnesses - including those named
in the present motion. Stipulations offact can aid the efficiency of the proceeding by allowing
dociunent adinissibihty or characteristics to be set before the Court, and thereby avoid the need
to call authentication witnesses and allow the Court more time totearother information
requiring its consideration as fact-finder. Stipulations of expected testimony m i ^ t be helpfid if
both sides agree that a witness woidd provide facts with much the same legal significance as a
stipulation offact could secure about authenticity. For exanqjle, a stipulation of expected
testimony may be prudent when both sides agree a record clerk would testify that he signed a

34171

certified copy. However, stipulations of^cL and especially of expected testimony.do have
limited pmdency.Neither form allows fbr nuance or context of the stipulated material to be
explored Also, stipulations of expected testimony,fbr example, are not admissions of that
testimony'stmth They canstillbe impeached and contradicted bythe parties ^ ^ R C M
811(e). Andso, if stipulations of expected testimony are used instead of callingawitness to
testify, the fact-finder maynot he able to undertake the additional inquiry necessaryto evaluate
the veracity,content, and weight ofthe testimony coveredhythe stipulation
(U)^^^^^^..r^.^^^^^o^^^o^^^^^^.^r^^^^^o^^^^^^^^
^^^^^^^^^^^^^^^^^^^,^^0^^,^^^^^^^^^^^^^^^.^^^.^^^^^^^^^^

^^^^^^^B^^^^^^^^^^^^o^t^^^^^^^^^^^.

B.

List of Classilied Information Necessitate^ Closure

(U) Each ofthe altematives described above will be used to the greatest extent possible in
this proceeding. For example, if onlythe identity ofawitness need be protected, subject to the
Court'sauthorization, the United States will devise and useadisguise and altemate name. Or, if
aclassifieddociiment need only be described to the court, classified infbrmation will L^
redacted. And, ifadocument can speak fbr itself the United States will anange forthe classified
content ofthedocumentto be available onlyto the parties andthe fact-fin^. Awitness will
dien orient theCourt to the document through the use of special viewing equipment and
unclassified oral descriptions The United States luideistands this to be consistent with the
''constitutionafiv required scalpel'approach required of it.
United Stat^v.Grunden,2M.J.
I16,120(CM^ 1977)
(U)Forthe.ir^^c^^^^.^o^^^^^^^^o^n^^^^^^i^^^^^^.^^^^
witness below,no meaningful or effective alternative exists With tins motion, the United States
moves theCourt, under the procedures described in Section IL to order courtroom closure in
order to hear the classified testimony ofthe below-named witnesses Again, the United States
imderstands such targeted clositre to be responsive the burden ofinstitutingclosiireonfyto
protect an'overriding interest" inaway"no broader than necessary" in the event altematives are
madequate^^^ RCM 806(h)(2)
(U)Tte infonnation artictilated below is organi^dl^ witness sii^lybecaose the evid^ce
will he ehcited in oral form. Following each witness name appears the classified subject matter
to which he/she win testify Pursuant to RCM 806(b)(2), the description also ofiers(a)the
reasoning behind this classification in order to commiinicate the 'overriding interest" at risk of
prejudice; (h)an explanation as to why closure isaremedy "no broaderthan necessary" to
protect this interest; and, byreference to the practical limitations described above, (c)the reason
other "altematives" are inadequate In addressing overriding interesL and onlywhere necessary,
the United States providesaclassifiedprof^r of the pieceofinfbrmation these witnesses will
address as well as an imclassified identification ofthe overridingnational secmity interest
pursuant to which this piece of infonnation is classified.

34172

1

(U^BG^Ret^ Robert Can, Defense Intelligence Agency
a.

(U) Classified Information and Overriding Interest.

(2) (U) This portion ofBG (Ret) Can'stestimonyrelates to interests of
national security addressed inEO 13526, Section 1.4(a)(c)(d).
h. (U) Scope ol Closure. T^eCourtwoidd be closed only at the pointwhich the
witness must disclose classifiedinfbrmation. The closure would therefbre be no broader than
necessary to protect the classified information.
c^ (U) Altematives. As this testimony will be oflered oraIly,it is not capable of
redaction. Should the witness require the use of any classifiied documents, they will he used
under the SWR and/orprojected by electronic displays, unless their content must 1^ discussed or
evaluated As the witness'sparticipation is itself not classified, no disguises or screens will be
necessary to shield the witness'sidentity fiom the pubhc. The classified content ofthe material
the witiiess will address, andnotjust its overall significance, is necessary andrelevanL
Therefore unclassified summary is untenable. Finally, the witness will be testifying to nuanced
infbrniationreqiiiring complicated explanation and must remainfi^eeto describe itto the parties
and fact-finder as they may require Therefore, the wihiess'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibilify tor this witness if
both parties agree Fina11y,forthe reasons articidated above, the infomiation at issue is cunently
classified and will be at the time ofthe trial, as harm could still occur asaresult of unauthorized
disclosure.Therefbre declassification is not wananted.
2.

(U)Col Julian Chesnutt, Defense Intelhgence Agency
a

(U) Classified Information and Overriding Interests

0^

34173

(2) (U) This portion ofColChesnutt'stestimonyrelates to interests of
nationalsecuritya^essedinEO 13526, Section 1.4(a)(c)(d)
b. (U) Scope of Closure. TheCourtwould be closed onfy atthepointwhi^ the
witness must disclose classified informations The closure would therefbre be no broaderthan
necessaryto protect the classified inlbnnation,
c. (U) Alternatives. As this testimony will be offered orally,it is not capable of
redaction. Should the witness require the use ofany classified documents, they will be used
tmder the SWR and/orprc^ected by electronic displays, unless their content must be discussed^
evaluated. As ^e witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield the witness'sidentityfi^omthe pubhc. The classified content ofthe material
the witness will address, andnotjust its ov^ah significance, is necessary and relevanL
Therefore unclassified summary is untetiable Finahy, the witness will be testifyii^ to nua^
infbrmation reqiui^g complicated explanation andmustremainfiee to describe it to the parties
and fact-finder as theymay require Therefbre, the witness'stestim^y cannot be reduced to
code No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness if
both parties agree. Finally,fbr the reasons articulatedabove, the infbrmation at issue is cunently
classified and will be at the time ofthe trial, as harm could still occur asaresult of unauthorized
di^losure, Therefbre declassification is not wananted.

a^

(U) Classified Information and Overriding Interests

(2) (U) This portion oftestimony relates to interests ofnational security
addressedinEO 13526, Sectionl4(c)

34174

b^

(U)Sc^eofCIosure.

(2) (U) As the witness'sassociation with this proceeding as well as the
subject matter of testimony is classified, the coiutroom closed forthe entirefy ofthis individuaPs
testimo^y,including the announcement ofthe witness'sname.
c. (U) Altematives. As this tesfimonywill be of^edoralfyit is not capable of
redaction Should the witness require the use ofany classified documents, they will be used
imderthe SWR and/orprojected by electronic displays, unless their content must be discussed 0^
evaluated As the witness'sidentity is itself not classified,no disguises or screens will be
necessaryto shield the witness'sidentifyfi^om the public. The classified content ofthe mat^ial
the witness will address, and notjust its ov^all significance, is necessary and relevanL
Therefore unclassified summary is untenable. Finally, the witness wih be testifyingtonuanced
information requiring complicated explanation andmust remainfieeto describe itto the factfinder and parties as they mayrequire Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibility forthis witness if
both parties agree. Stipulations may be usefiil to estabhsh classification level asalacL and. if
relevanL to memorialize the adnnssihihty ofmaterial such as the charged documents. Finally,
fbr the reasons articidated above, the information at issue is cunently classified and will be at tho
time of the trial, as harm could still occur asaresult of unauth^^rized disclosure. Therefbre
declassification is not wananted.
4
(U) Ms Elizabeth Dibble, Principal Deputy Assistant Secretarv.Bureau ofNear
EastemAf^urs. Department ofState
a.

(U) Classified Infom^tionandOverriding Interest.

34175

(2) (U)This portion ofMs.Dibble'stestmionyrelates to int^ests ofnational
securifyaddressedin EO 13526, Section 1.4(c)(d).
b. (U) Scope of Closure. The Courtwoidd be closed only at the point which the
witness must disclose classified inlbrmation The closure would therefbre be no broader than
necessaryto protect the classifiedinlbimation.
c. (U) Altematives. As this testimony will be o8eredoralfy,it is not capable of
redaction. Should the witness require the use ofany classified dociunents, theywill be used
imder the SWR aud/orprojected by electronic displays, unless their content must be discussed or
evaluated. As flie witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield the witness'sidentity fiom the public. The classified content ofthe material
the wihiess will address, andnotjust its ov^all significance, is necessary andrelevanL
Therefbre unclassified summary is untenable FinaI1y,the witness will be testifying to nuanced
infi^nnationrequiruig comphcated explanation and mtistremainfi^ee to describe it to the partis
and the fact-finder as they may require Therefore, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibihty forthis witness if
both parties agree Finally,fbr the reasons articulatedabove, the infbrmation at issue is cunently
classified and wih be at the time ofthe trial, as harm could still occur asaresult of unauthorized
disclosure Therefore declassification is not wananted.
5.

(U) John Doe, Department ofPel^^e

(U)Court closure information forthis witness is listed within the govemm^t'sMRE
505(i)(2)motionfiledon3IJanuary2013
6.

(U) RADM I^eviuDonegan, Director, NavalWarfare Integration. Pentagon
a.

(U) Classified Information and Overriding Interest.

(2) (U)This portion ofRADMDonegan'stestimonyrelates to interests of
national security addressedinEO 13526, SectionI4(a)(c)(d).

34176

b. (U) Scope of Closure. TheCourtwould be closed only atthe pohitwhich the
witness must disclose classified information. The closure would therefbre be no l^oad^ than
necessarytoprotect the classifiedinfbrmation.
c. (U) Altematives. As this testimonywill be offered oral1y,it is not enable of
redaction. Should the witness require the use ofany classified docum^ts, they will be used
underthe SWR and/orprojected by electronic displays, unless their content must be discussed or
evaluated. As the witness'sparticipation is itselfnot classified, no disguises or screens will 1^
necessaryto shield the witness'sidentity fiom the public. The classified content ofthe material
the witness will address, andnot just ifs ov^allsignificance, is necessary andrelevanL
Therefore unclassified sumrnary is untenable. Finally.the witness willtetestifying to nuanced
irifbrmation reqiiiring comphcated explanation andmust remain free to describe it to the factfindeiandpai^iesastheymayrequire Therefore, the witnessstestimonycannotbereducedto
code. No stipulations have been agreed upon to date, althoughapossibilityfbrthis witness if
both parties agree Finally.fbr the reasons articulated above, die inlbrmation at issue is cinrently
classified and wih be at the time ofthe trial, as hann could still occur asaresult ofunauthoiized
disclosure. Therefbredeclassification is not warrants
7
(U) Mr JohnFeeleyPrincipal Deputy Assistant SecretarvBureauofWestem
Hemisphere Afiairs, L^partment of State
a.

(U) Classified Information and Overriding InteresL

(2) (U) This portion ofMr.Feeley'stestimony relates to interests ofnational
securifyaddressedhiEO 13526, Sectionl.4(b)(d)

34177

b. (U) Scope of Closure. TheCourt woidd he closed only at tte point which the
witn^s must disclose classified information. The closure would therelbre be no broader than
necessarytoprotect the classifiedinfbrmation.
c. (U)AItematives. As this testimonywill be offered oral1y,it is not capableof
redaction Should the witness require the use ofany classified documents, they will be used
luidertheSWRand^orprcjected by electronic displays, luilesstheu^ content must he discussed or
evaluated As the witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield the witness'sidentifyfiomthe pubhc The classified content ofthe material
the witness will address, andnotjust its overall significance, is necessary andrelevanL
Therefore unclassified summary is untenable. Einahy,the witness will be testifying to niianced
infbrmation requiring complicated explanation andmust remainfieeto describe it to the factfinder and palsies as they mayrequire Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibility forthis witness if
both parties agree Stipulations may be usefiil to estabhsh classification level asalacL and, if
relevanL to memoriahze the admissibihty ofmaterial such as the above documents. Finally.fi^r
the reasons articulated above, the infonnation at issue is cunently classifiedand win be at the
time of the trial, as harm couldstill occur asaresult ofunauthorized disclosure.Therefbre
declassification is not wananted.
8

(U^VADMRobertHar^ardUSCENTCOM
a.

(U) Classified Information and Overriding Interest.

(1) (U)VADM Robert Harward will testify as an original classification
authority(OCA) that charged USCENTCOM information was properly classified. Toexplain
the basis ofhis classifications, he must discuss the details ofthe subject matter he is classifying.
This information is properly classified at the SECRET level according to the USCENTCOM
ClassificationReviewdated21 October 2011. Unauthorized disclosure ofthis infbrmation could
cause(serious)damage to national securify Therefbre, discussion ofthis information in open
session would undermine national security interests.
(2) (U) This portion ofVADM Robert Harward'stestimony relates to
interests ofnational securityaddressedinEO 13526, Section l,4(a)(b)(c)(g).
h. (U) Scope of Closure. TheCourtwould be closed only at the point ^ i c h
VADM Robert Haiwardmust disclose classified infbnnati^ Theclosure would therefbre be no
broaderthannecessaryto protectthe classified information.
c. (U) Altematives. As this testimonywill be oflered oralIy,it is not capable of
redaction. Should the witness require the use ofany classified dociunents, theywill be used
tmderthe SWR and/orprojected by electronic displays, unless their content must be discussed 0^

34178

evaluated As die witness'sparticipation is itself not classified, no disguises or screens will be
necessaryto shield the witness'sidentify fiom the public. The classified content ofthe material
the witness will address,andnotjust its overall significance, is necessary andrelevanL
Therefbre unclassified summary is untenable. Finalfy, the witness will be testifying to nuanced
infbrmation requiring complicated explanation and mustremainfi^ee to describe it to die factfinder and parties as they may require. Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness i f
both parties agree Stipulations may be usefid to estabhsh classification level asafact, and, i f
relevanL to memoriahze the admissibilify ofmaterial such as the charged dociunents Finally,
forthe reasons articidatedabove, the information at issue is ctinently classified and will be atthe
time of the trial, as harm could still occur asaresult ofunauthorized disclosure. Therefore
declassification is not wananted.
9.

(U) Mr. Patrick HoeffeLhitelhgent Software Solutions, hic.
a.

(U) Classified Information and Overriding Interest.

(1) (U^MrPatrickHoeflelwilltestifyabouttheCIDNEdatabaseandhowit
appeared ataparticulartinie.iticludingclassifiedinfbniiation This infonnation is properly
classified at the SECRET level according to the USCENTCOM Classification Review dated 21
October 2011. Unauthorized disclosure o f i t could cause damage to national securify Therefi^re,
discussion of this infbrniation in open session woidd undennine nationalsecurifyinterests.
(2) (U)This portion oftestimonyrelates to interests ofnati^alseci^ty
addressedinEO 13526, Sectionl4(a)(b)
b.
(U) Scope of Closure. TheCourt would he closed only atthepointyi^ich the
witness must disclose classified infonnation Tbe closure would therefbre he no broade^ than
necessarytoprotect the classifiedinfbrmation.
c.
(U) Altematives. As this testimonywill be oflered orally.it is not capable of
redaction. Should die witness require the use ofany classified documents, tiieywill be used
underthe S^^and/orprojected by electronic displays, imless their content must be discussed or
evaluated. As the witness'sparticipation is itself not classified, no disguises or screens will f ^
necessaryto shield the witness'sidentifyfi^omthe pubhc. The classified content of the material
the witness will address,andnotjust its overall significance, is necessary and relevanL
Therefbre unclassified summary is imtenab1eEinally,the witness will 1^ testifying to nuanced
infbrmation reqiiiriug comphcated explanation andmustremainfiee to describe it to the factfinder and parties as they mayrequire. Therefbre, the witness'stestimony cannot be reduced to
code No stipulations have been agreed i ^ n to date, althoughapossibilifyfbrthis witness i f
both parties agree Stipulations may be usefiil to establish classificationlevelasafacL^d. i f
relevanL to memorialize the admissibihfy ofmaterial such as the CIDNE SIGACTS. Finally,fbr
the reasons articidatedahove, the infonnationat issue is cunently classifiedand will he atthe
^

34179

time ofthetiriaLas harm could still occur asaresult ofunauthorized disclosure. Therefbre
declassification is not wananted.
10

(U)MrThomasHoskins, USCENTCOM
a.

(U) Classified Information and Overriding InteresL

(1) (U) Mr. Thomas Hoskins will testify aboutthe content of charged
USCENTCOM doctimentscontainingJ-5hifbnnation, and whythe infonnationrelates to the
national defense, including classified information This information is properly classified at the
SECRETlevelaccorduigtothe USCENTCOM ClassificationReviewdated21October201L
Unauthorized disclosure of it could cause severe damage to national securify. Therefore,
discussion ofthis in^nnation in open session would imdermine national securify interests.
(2) (U) This portion o f M r Hoskins'testimonyrelates to interests ofnational
securify addressed in EO 13526, Sectionl4(a)(c).
b.
( I ^ Scope of C losure. The Court woidd be closed only at the point which the
witness must disclose classified information. The closure woidd therefbre be no l^oad^than
necessaryto protect the classifiedinfbrmation.
c.
(I^) Altematives. As this testimonywill be o^redorally.it is not capableof
redaction Should the witness require the use of any classified documents, theywill be used
imderthe SWR and/orprojected by electronic displays, unless their content must be discussed^
evaluated. As the witness'sparticipation is itselfnot classified, no disguises or screens will f ^
necessaryto shield the witness'sidentifyfiom the public The classified content ofthe material
the wihiess will address, andnot just its overall significance, is necessary and relevanL
Therefbre imclassified sunimary is untenable. Finally,thewitn^s will be testifying to nuanced
infoimation requiting con^licated explanation andmustremainfiee to describe it to the factfinder and parties as they mayrequire Therefbre, the witness'stestimony cannot be reduced^
code. No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness i f
both parties agree Stipulations may be useful to establish classification level asafacL and. i f
relevanL to memorialize the adnussihihfy ofmaterial such as the charged dociunents. Finally,
fbr the reasons articulated above, the information at isstie is ctinently classified and will L^ at the
time of the triaL as harm could still occur asaresult of unauthorized disclosureTherefore,
declassification is not wananted.
11.

(U) AMB PatrickFI^ennedy, Under Secretarvlbr ManagemenL Department ofState^
a.

(U)Ch^ssiIied Information and Overriding Interest.
1^1^

34180

(2) (U) This portion ofAMBI^ennedy'stestimony relates to interests of
nationalsecurifyaddressedinEO 13526, SectionL4(c)(d).
b.
(U) Scope of Closure. The Courtwoidd be closed only at the pointwhich the
witness must disclose classified information. The closurewould therefbre he no broaderthan
necessaryto protectthe classifiedinfbrmation.
c.
(U) Altematives. As this testimonywill be offered orally.it is not c^^ble of
redaction Should the witness require the use of any classified dociunents, theywill be used
imder the SWR and/orprojected by electronic displays, unless their content must be discussed^
evaluated. As the witness'sparticipation is itselfnot classified, no disgiiises^screens will be
necessaryto shield the witness'sidentifyfiom the pubhc The classified content ofthe material
the witness will address, andnotjust its overall significance, is necessary and relevanL
Therefbre unclassified summary is untenable. Finally,the witness will be testifying to nuanced
informationrequiringcon^licatedexplaiiationandmust remain free to describe it to fact-finder
andparties as they mayrequire Therefore, the witness'stestimony caimot be reduced to code.
No stipulations have been agreed upon to date, althougliapossibilify fbr this witness ifhoth
parties agree. Finally,^! the reasons articidated above, the infbrmation at issue is cunently
classified and will be at the time ofthe trial, as harm could still occur asaresult of unauthorized
disclosure. Therefbre declassification is not wananted.
12.

(U) Mr. John I^chhofer, Defense Intelhgence Agency
a.

(U) Classified Information and Overriding InteresL

34181

(2) (U) This portion ofMrl^chhofer^s testimonyrelates to interestsof
natioaalsecurityaddressedinEO 13526, SectionL4(a)(d).
b.
(U) Scope of Closure. The Courtwoidd be closed onfy atthe pointwhich the
witness must disclose classifiedinfbrmation. Theclosurewould therelbre be no l^aderthan
necessaryto detect the classified informati^^
c.
(U) Alternates. As thistestimonywill be offered orallyit is not capableof
redaction. Should the witness require the use ofany classified dociunents, theywill be used
tmderthe SWR and/orprc^ectedhy electrottic displays, unless their content must he discussed^
evaluated. As the witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield the witness'sidentify fiom the public The classified content ofthe material
the witness will address, and not just its overall significance, is necessary and relevanL
Therefbre unclassified sunimary is untenable. Finally.the witness will be testifying to nuanced
infi^nnationi^uiring complicated explanation andmust remainfireeto describe it to the factfinder and parties as they mayrequire Therefbre, the witn^s'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness i f
both parties agree Finally, fbr the reasons articulated above, the inlbrmation at issue is cunently
classified and will be at the time ofthe trial, as harm could still occur asaresult of unauthorized
disclosure. Therefbre declassification is not warranted.
13

(UlAMBMichael^ozak, DepartmentofState
a.

(U) Classilied Information and Overriding Interest.

(1) (U) AMB Michael I^ozak will testify on sentencing about die u n p a d s
individuals ideitified as persons at risk bythe Department ofState, including classified
infbrmation This testimony will not include PII ofany specific individual. Thisinfbrmati^is
^operlyclassified atthe SECRET level according to the D^artment ofState Classification
Guide (DSCG 11-01,dated May 2011). Unauthorized disclosure ofthis infbrmation could causo
seriotisdarnage to national securifyTherefbre, discussion ofthis infbrmation in ^^nsessit^
would undennine national securify interests.
(2) (U) This portion of AMB I^ozak'stesthnonyrelates to mte^ests ofnational
s^^fyaddressedinEO 13526, Section 1.4(d).
b.
(I^) Scope of Closure. TheCourtwould be closed only at the pointwhich the
witness must disclose classified infbrmation The closure would therelbre he no broade^than
necessaryto^otect the classifiedinlbimation.
c.
(U) Altematives. As dns testimonywill be ol^leredoralfy,it is not capable of
redaction. Should the witness require the use ofany classified dociunents, theywill be used

34182

itndertheSW^and/orprojectedbyelectironic displays, iinless thencontentmustbe discussed^
evaluated. As the witness'sparticipation is itself not classified, no disguises or screens will be
necessaryto shield the witness'sidentify fiom the pubhc Theclassified content ofthe material
the witness will address, andnotjust its overall significance, is necessary and relevanL
Therefbre unclassified summary is imtenab1e.Eiiially,the witness will be testifying to niiance^
infomiation reqtiiring comphcated explanation aiidmiistrernainfi^ee to describe it to tlie factfinder and parties as they mayrequire Therefbre, the witness'stestimony camiot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness i f
both parties agree Finally,fbr the reasons articulated above, the infonnation at issue is currently
classified and win be at the time ofthe trial, as harm could still occur asaresult of unauthorized
disclosure. Therefbre declassification is not warranted.
14
a.

(Unclassified Information and Overriding Interest.

(2) (U) This portion oftestimonyrelates to interests ofnati^al securify
addressedmEO 13526, Sectionl4(c)
h.

(L^ Scope of Closure.

(2^ (U) As the witness'sassociation with this proceedmg as well as the
subject matter oftestimony is classified, the courtroom closed forthe entirefy ofthis individual's
testimony,including the amioiuicement ofthe witness'sname.
c^
(U) Altematives. As this testimony will be offered oral1y,it is not capable of
redaction. Should die witness require the use ofany classified documents, they will be used
tmderthe SWR and/orprojected by electronic displays, imless their content must be discussed or

34183

evaluated As the witness'sidentify is itself not classified, no disgiuses or screeis will be
necessaryto shield the witness'sidentify fiom the public. The classified content ofthe material
the witness will address, and not just its overall significance, is necessary and relevanL
Therefore imclassified sununaryis untenable. Finally, the witness will be testifying to nuanced
infi^rniation requiring complicated explanation andmustreniainfi^ee to describe it to die factfinder andparties as they mayrequire. Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed t ^ n to date, althoughapossibilifyfbrthis witness i f
both parties agree. Stipulations may be usefid to estabhsh c l a s s i f i c a t i o n l e v e l a s a ^ L ^ i l ^
relevanL to memorialize the admissibilify ofmaterial such as the charged dociunents Finally,
forthe reasons articidatedahove, the information at issue is cunently classifiedand will be at the
time of fhe trial, as harm could still occur asaresult ofunauthorized disclosure, Tterefore
declassification is not wananted,
15. (U) Mr. Danny J.Lewis, Defense Intelligence Agency
a.

(U) Classified Information and Overriding Interests

(1) (U) Mr. Danny J.Lewis will testify about counterintelhgence and the
value ofinfbrmation, including classified infi^nnation concerning the value of governmeid
infbrmation This infbrmation is properly classified at the SECRET level according to the
Depailment ofDefense Offensive Counterintelligence Operations Procedures and Sectirity
Classification Guide (S-5240.09-M,datedJanuary 13,2011). Unauthorized disclosure ofthis
infbrmation cotild cause serious damage to national securify.Therefbre, discussion of this
information in open session would imdermine national securify interests.
(2) (U) This portion ofMr.Lewis'stestimonyrelates to interests ofnational
securifyaddressedinEO 13526, Section 1.4(c).
h.
( I ^ Scope of Closure. The Court would be closed only at the point which the
witness must disclose classified infbrmation The closure would therefbre be no broaderthan
necessarytoprotect the classifiedinfbrmation.
c.
(U) Altematives. As this testimony will be offered oral1y,it is not capable of
redaction. Shotdd die wimess require the use ofany classified documents, they will be used
tmderthe SWR and/or projected by electrotlic displays, imless their content must be discussed^
evaluated. As the witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield the witness'sidentify fiom the public The classified content ofthe material
the wihiess will address,andnotjust its overall significance, is n e c t a r y and relevanL
Therefbre unclassified sunimary is untenable. Finally.the witness will be testifyingtontianced
information requiring complicated explanation andmustremainfiee to describe it to the factfinders and parties as they may require Therefore, the witness'stestimony cannot be reduced to
code. No stipidations have been agreed upon to date, althoughapossibilifyfbrthis witness i f
both parties agree, Finally,fbrthe reasons articulatedabove, the infoimation atissue is cunentfy

34184

classified and will he atthe time ofthe trial, as hann could still occur asaresult ofunauthorized
disclosure Therefbre declassification is not warranted.
16. (U) Mr. Randall MacRobbie, Defense Intelhgence Agency
a.

(UnclassifiedInformation and O^erridi^InteresL

(2) (U)This portion ofMrMacRobbie'stesthnony relates to invests of
nafional security addressedinEO 13526, SectionL4(g).
b.
(U) Scope of Closure. TheCourtwoidd he closed only at the pointwhich the
witness must disclose classified information The closure would therefbre be no I^oader than
necessarytoprotect the classifiedinfbrmation
c.
(U) Altematives. As this testimony will be offered orally.it is not capable of
redaction. Should the witness require the use of any classified documents, theywill be used
under the SWR and/or projected by electronic displays, luiless their content must be discussed or
evaluated. As the witness'sparticipation is itselfnot classified,no disguises or screens will be
necessaryto shield the witness'sidentity fiom the public. The classified content ofthe ma^rial
the witness will address, andnotjust its overall significance, is necessary and relevant.
Therefore unclassified sunimary is untenable Eiuahy, the witness will be testifying to niianced
infonnation requiring comphcated explanation andmustremainfiee to describe itto the factfinder and parties as they may require. Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibihfy forthis witness i f
both parties agree. Finally, fbr the reasons articulated above, the information at issue is cunently
classified and will be at the time of the trial, as harm could still occur asaresult of unauthorized
disclosure.Thereforedeclassification is not warranted
17

(U)Mr.JamesMcCarLJomtIEDDefeatOrganization(JIEDDO),
a^

(U) Classified Information and Overriding Interests
^

^

^

^

^

^

^

^
^

^

^

^

^

^

^

^

^

^

^

34185

(2) (U)This portion ofMr.McCail'st^stim^^r^tes to interests ofnational
securify addressedinEO 13526, Section14(a)(g).
b. (U) Scope of Closure. TheCourtwould be closed only at die point which the
witness must disclose classified infonnation. The closure would therefbre be no broaderthan
necessaryto ^otect the classifiedinfbimation
c. (U) Altematives. As this testimonywill be oflered oiaHy.it is not capable of
redaction Should the witness require the use of any classified documents, theywill be used
under the SWR and^orprojected by electronic displays, unless their content must be discussed^
evaluated. As the witness'sparticipation is itself not classified, no disgiuses or screens will be
necessaryto shield the witness'sidentifyfiomthe public The classified content of the material
the witness will address, andnotjust its ove^all significance, is necessary and relevanL
Therefbre tmclassified siiumiary is untenable. Fiiially,the witness will be testifyingtonuanced
information requiring comphcated explanation and must remain fi^ to describe it to proceeding
personnel as they may requite. Therefbre, the witness'stestimony cannot be reduced to code.
No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness ifhoth
parties agree. Einally,fbr the reasons articidated above, the infbrmation at issue is cunentiy
classified and will be at the time ofthe trial, as harm could still occur asaresult of unauthorized
disclosure.Therefbre declassification is not wananted.
18.

(U) MaiGen Kennefli McKenzie, USMC HO Staff
a.

(U) Classified Information and Overriding Inter«L

34186

(2) (U)This portion ofMajGenMcI^enzie'stestimonyrelates to interests of
national securify addressed in EO 13526, Sectionl4(a)(d).
b.
(U) Scope of Closure. TheCourtwoidd be closed only at the point which the
witness must disclose classified information. The closure would tiierefbre be no broaderthan
necessarytoprotect the classifiedinfbrmation.
c.
(U) Altematives. As this testimony will be o^redora11y,it is not capable of
redaction Should the witness require the use ofany classified documents, theywill be used
tmderthe SWR aud/orprojected by electronic displays, unless their content must he discussed 1^
evaluated. As die witness'sparticipation is itself not classified, no disguises^screens will f ^
necessaryto shield the witness'sidentityfiom the pubhc. Theclassified content ofthe material
the witness will address.and notjust its overall significance, is necessary and relevant.
Therefbreunclassifiedsummaryis untenable Finally.the witness will be testifyingtonuanced
infomiation reqiuringcotnplicated explanation andmustremainfiee to describe it to the factfinder and parties as they mayrequire Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibihfy fi^rthis witness i f
both parties agree Finally,fbr the reasons articulated above, the information at issue is cuneidy
classified and will he at the time ofthe triaL as harm could still occur asaresult of unauthorized
disclosure Therefbre declassification is not wananted.
19. (U)Mr James Moore, DepartmentofState
a.

(Unclassified Information and Overriding Interest.

(1) (U) Mr.James Moore will testify about the content of cables origiuating
fi^om South and Central Asia on the merits (specifically, 06 Colombo 1889: 06 I^thmandu 3023^
06I^thmandu3024; 07 Ashgabat 1359; 07Dhaka24:07New Delhi 80; 09 New De1hi267; 09
State 92641), and whythe infbrmation requires protection against imauthorized disclosure fbr
reasons ofnational defense or fbreign relations, including classified infbrmation This
infbrmation is properly classified at the CONFIDENTIAL level according to the Departmeit of
State Classification Review dated 30 October 2011 Unauthorized disclosure of it could cause
damage to national seciirify. Therefbre, di^ussion of this intimation in op^session would
imdermine national secui^fy interests.
(2) (U) This portion ofMr.Moore'stestimony relates to interests of national
securifyaddressedinEO 13526, Sectionl4(b)(d)
b.
(U) Scope of Closure. TheCourt would be closed only at the point v ^ c h the
witness must disclose classified infbnnation The closure would therelbre be no l^oader than
necessaryto detect the classified information.
c.

(U) Altematives. As diistestimc^ywill be o ^ e d ^ a l l y , i t is not capable of

34187

redaction. Should die witness require the use ofany classified docimients, theywill be used
tmder the SWR and/or projected hy electronic displays, unless their content must be discussed^
evaluated. As the witness'sparticipation is itself not classified, no disguises or screens will be
necessaryto shield the witness'si^tifyfiom the public. Theclassified content of the material
the witness will address, andnot just its overall significance, is necessary andrelevanL
Therefbre imclassified sununaryis untenable. Finahy, the witness will be testifying to niianced
infbrmationrequuing comphcated explanation and mustremain free to describe it to the factfinder and parties as they mayrequire. Therefore, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness i f
both parties agree. Stipulations may be usefiil to estabhsh classification level asafacL and, i f
relevanL to memorialize the adnussibilify ofmaterial such as the above documents. Finally,fi^r
the reasons articidatedahove, the infbrmation at issue is cunentiy classifiedand will be at the
time of the triaL as harm couldstdl occur asaresult of unauthorized disclosure Therefir^e
declassification is not wananted.
20 (U)MrB^enMoserUSCENTCOM
a^

(Unclassified Information andOvi^rridinglnt^rest^

(1) (U) Mr Ren Moserwill testify aboutthe infbnnation posted to the
USCENTCOMOSJASIPRNET,potentiallyincltidingc1assifiedinfbrmation. This infiormation
is properly classified at the SECRET level according to the USCENTCOM Classification
Review dated21 October 2011. Unauthorized disclosure of it could cause serious damage to
nationalsecurity. Therefore, disciissionoftlus infbrmation in open session would undennine
national security interests.
(2) (U) This portion oftestimonyrelates to interests ofnational securify
a^^dressedinEO 13526, Section14(a)(c)
b.
(U) Scope of Closure. The Court would be closed only at the point which the
witness must disclose classified infbnnation The closure woidd therefbre be no broader than
necessaryto protect the classified infbrmation.
c.
(U) Altematives. As this testimony will be oflered oraIly,it is not capable of
redaction Should die witness require the use of any classified documents, theywill be used
tmder the SWR and/or projected by electronic displays, unless their content must be discussed^
evaluated As the witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield the witness'si^^tity fiom the public. The classified content ofthe material
the witness will address, andnotjust its overall significance, is necessary and relevanL
Therefore miclassified sununaryis untenable Finally,thewihiess will be testifying to nuanced
irifiormation requiring complicated explatiation andmustremainfiee to describe it to thefacts
finder and parties as they mayrequire. Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreedi^n to date, althoughapossihihfyfbrthis witness if

34188

both parties agree. Stipulations maybe useful to establish classification level asafacL and, i f
relevant, to memorialize the admissibihfy ofmaterial such as is described above. Finalfy,fbrthe
reasons articulated above, the infbnnation at issue is cunently classified and wdl be at the time
of the trial, as harm could stifioccitr asaresult ofunauthori:^ disclosure.Therefbre
declassification is not wananted.
2L

(U)MrJefiervMotesJTE^TMOGuantanamoBavCuba
a.

(UnclassifiedInformation and Overriding Interest.

(1) (U)MrJefieryMoteswilltestifyabouttheJTF^TMOdatabase andthe
contents ofcon^ronnsed infbrniation, and whythe iufbnnationrelates to thenational defense,
including classified infoimation. For sentencing, he will testify aboutthe impact resulting fi^om
the compromise ofthe JTF GTMO database This infbrmation is properly classified at SECRET
level accordingto the JTF-GTMO Classification Review dated4November 2011 Unauthc^zed
disclosiire o f i t could cause seriotisdaniage to national seciirity.Theiefbre, discussion of diis
infiormation in open session would imdermine nationalsecurifyinterests.
(2) (U) This portion oftestimony relates to interests of nati^^l securify
addressedmEO 13526, Sectionl4(c)
b.
(U) Scope of Closure. TheCouttwotdd be closed only atthe pohitwhich the
witness must disclose classified infbrmation The closure would therefbre be no broader than
necessaryto protect the classified infbnnation.
c.
( I ^ Altematives. As this testimony will be of^redorally.it is not capable of
redaction. Should the witness require the use ofany classified documents, theywill he used
tmder the SWR and^orprcjected by electronic displays, unless their content must be discussedo^
evaluated As the witness'sparticipation is itselfnot classified, no disguises^screeus will be
necessaryto shield the witness'si^^tify fiom the pubhc The classified content of the material
the witness will address, andnot just its overall significance, is necessary andrelevanL
Therefbre tmclassified sunimary is untenable Firiahy.the witness will be testifying to nuanced
itifbrmationreqtmmg comphcated explanation and must remain free to describe it to the factfinder and parties as they mayrequire. Therefbre, the witnessstestimony cannot foe reduced to
code No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness i f
both parties agree. Stipulations may be usefid to establish classification level asafact, and, i f
relevanL to memorialize the admissibihfy ofmaterial such as detainee assessments. Finally.fbr
the reasons articulated above, the infbrmation at issue is ciurently classifiedand will be at the
time of the trial, as harm couldstill occur asarestdt ofunauthorized disclosure. Therefbre
d^lassification is not warranted.
^2.

( U ) M r . Nicholas Murphy.Department ofState

34189

a.

(U)CIassifiedInformation and Overriding InteresL

(1) (U) Mr. Nicholas Minp^hywill testify as an OCA that Department ofState
infbrmation was properiy classified, including classified infonnationToexplain the basis ofhis
classifications, he must discuss the details ofthe subject matter he is classifying. This
mfbrmationis properly classifiedat the SECRET and CONFIDENTIAL level accordingto the
Department ofState Classification Review dated 30 October 2011. Unauthorized disclosure of
diis infbrmation could caiise(serious)damage to national seciirify.Therefbre, discussion of this
infbrmation in open session would imdermhie national securify interests
w
(U) This portion of Mr. Murphy's testimony relates to interests of
(2)
national securify addressed in EO 13526, Section 1.4(a)(bXd)(eXg)b. (U) Scope of Closure. The Court would be closed only at the point which Mr.
Murphy must disclose classified information. The closure would therefore be no broader than
necessary to protect the classified infonnation.
c. (U) Alternatives. As this testimony will be offered orally, it is not capable of
redaction. Should the witness require the use ofany classified documents, they will be used ,
imder the SWR and/or projected by electronic displays, ludess their content must be discussed at
evaluated. As the witness's participation is itself not classified, no disguises or screens will be
necessary to shield the witness's identityfromthe pubhc. The classified content oftiie material
the witness will address, and notjust its overall significance, is necessary and relevant.
Therefore unclassified summary is untenable. Finally, the witness will be testifying to nuanced
infoimation requiring complicated explanation and must remain free to describe it to the factfinder and parties as they may require. Therefore, the witness's testimony cannot be reduced to
code. No stipulations have been agreed upon to date, although a possibihfy for this witness if
both parties agree. Finally, for the reasons articulated above, the information at issue is cunently
classified and will be at the time of the trial, as harm could still occur as a result ofunauthorized
disclosure. Thaefbre declassification is not warranted.
23. fU) MG Michael Nagata, Jomt Staff, the Pentagon
a.

(U) Classified Information and Overriding Interest.

34190

(2) (U)This portion ofMGNagata'st^tim^yrelates to interests of national
secui^fy addressedinEO 13526, Section14(a)(cXd).
b.
(U) Scope of Closure. The Court woidd be closed only at the point which the
witness must disclose classified infbrmation. The closure would therefbre be^hro^^ler than
necessaryto^otect the classifiedinfbrmation
(U) Altematives. As this testimonywill be oflered orally,it is not capable of
c.
redaction. Should the witness require the use ofany classified documents, theywill be used
imder the SWR and/or projected by electronic displays, unless their content must be discussed^
evaluated As the witness'sparticipation is itself not classified, no disguises or screens will be
necessaryto shield the witness'sidentifyfiom the public. The classified content of the material
the witiiess will address, andnotjust its ove^all significance, is necessary andrelevanL
Therefbre imclassified sunimary is untenable. Ehially,the witness will be testifying to niianced
infiomiationreqturing complicated explanation andmustremainfiee to describe it to the factfinder and patties as they mayrequire Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness i ^
both parties agree. Finally, fbr the reasons articidated above, the infbrmation at issue is currently
classified and will be at the time ofthe trial, as harm could still occur asaresult of unauthorized
disclosure Therefbre declassification is not warranted.
24

(U) LtCol (Ret)MartinNehring, USCENTCOM
a.

(U) Classified Information and Overriding Interest.

(1) (U)Lt Col (Ret)MartinNeliring will testify about the content of charged
documents containing J3 information, and why the information relates to the national defense,
including classified infbnnation. This infbrmation was properly classified at the SECRET level
according to the USCENTCOM Classification Reviewdated21 October 2011 Unauthorized
disclosure o f i t cotdd cause damage to national secm^fy Thereare, discussion ofthis
infbrmation in open session would undennine national sectirify interests.
(2) (U) This portion oftestim^yrelates to mterests ofnational securify
addressedinEO 13526, Sectionl4(a)(b)(c)
b.
(U) Scope of CIosure.TheCourt would be closed only atthe p o i n t ^ i c h the
witness must disclose classified infbrmation. The closure would therefbre be no broade^ than
necessaryto detect the classifiedinlbrmation.
(U) Altematives. As this testimonywillbe oflered oraIfy,it is not capableof
c.
redaction Should the witness require the use ofany classified documents, theywill he used

34191

imderthe SWR and/orprojected by electronic displays, unless their content must be discussed^
evaluated. As the witness'sparticipation is itself not classified, no disguises or screens will be
necessaryto shield thewitness'sidentifyfiom the pubhc. The classified content ofthe material
the witness will address, andnot just its overall significance, is necessary and relevanL
Therefiore imclassified summary is tmtenable.Einally the witness wih be testifying to niianced
infbnnationrequirhig comphcated explanation andmustremainfi^ee to describe it to the factfinder and parties as they mayrequire. Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness i f
both parties agree Stipulations may be useful to establish classification level asafacL and, i f
relevanL to memorialize the admissibihfy ofmaterial such as the charged dociunents Finally,
fbr the reasoiisaiticidated above, fhe infbrmation at issue is cunentiy classified and will foe at th^
time of the trial, as harm couldstill occur asaresult of unauthorized disclosure Therefbre
declassification is not warranted.
25

(U) SSA AlexanderOtte, Federal Bureau oflnv^tigation
a.

(U) Classified Information and Overriding Interest.

(1) (U)SSAAlexanderOtte will testify asachain of custody witness for
classified iidbnnation concerningfiourfiles extracted fiom digital media fbundin the possession
ofUsama bin Laden o n l M a y 2011. This infbrmation is properly classified at the SECRET
level according to authorities specified in the Govemment'sRCM505(i) filing, dated31January
2013. Unauthorized disclosure of it coidd cause serious damage to national securify.Therelbre,
discussion ofthis infbrmation in open session would undermine national securify interests.
(2) (U) This portion oftestimony relates to int^ests of nati^^ial securify
addressedinEO 13526, Section 1.4(aXc).
b.
( I ^ Scope of Closure. Tbe Court would be closed only at the pointwhich the
witness must discloseclassifiedinfbnnation Theclosure would therefbre be no broaderthan
necessarytoprotect the classifiedinfbrmation.
c.
(U)A1tematives. As this testimonywill be offered oraI1y,it is hot capableof
redaction. Should the witness require the use ofany classified documents, they will loused
^ imderthe SWR and/or projected by electronic displays, unless their content must be discussed o^
^ evaluated As the witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield the witness'sidentify fiom the pubhc The classified content ofthe material
the witness will address, andnotjust its overall significance, is necessary and relevanL
Therefbre tmclassified sutnmary is untenable. Finahy,the witness will be testifying to nuanced
infbrmation requuing complicated explanation andmustremainfiee to describe it to the factfinder and parties as they mayrequire. Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibilifyforthis witness if
both parties agree. Stipulations may be useful to estabhsh chissification level asafacL and. i f

34192

relevanL to memorialize die admissibihfy ofmaterial describedabove. FinaHy.fbrthe reasons
articulated above, the infbrmation at issue is cunently classified and will be at the time ofthe
trial, as hanncouldstih occur asaresuh ofunauthorized disclosure. Therefore declassificationis
notwananted.
26. (U) AMB DavidPearcePenartmeit ofState
a

(UnclassifiedInformation and Overriding InteresL

(1) (U) AMB David Pearce will testify about the content ofcables originating
fromAfghanistanand Pakistan on the merits(specifically, 06 Rahul 5420: 06 Rahul 542L(^
I^bul 5435; 99 Islaniabad 495), and whythe infonnation reqttires protection agairi^
imauthorized disclosure for reasons ofnational defense or fbreign relations, mcluding classified
infbrmation This infbrmation is properly classified at the CONFIDENTIAL level accordingto
Department ofState Classification Review dated 30 October 2011.Unauthorized disclosureofit
coidd cause damage to national seciirity. Therefbre, discussion ofthis infbnnation in open
session woidd tmdermine nationalsecurifyinterests
(2) (U) This portion oftestimonyrelates to interests ofnational securify
addressedmEO 13526, Sectionl4(bXd)
b. (U) Scope of Closure. TheCourt wotdd be closed only at the pointwhich the
witness must disclose classified infbrmation. The closure wotdd therefbre be no broader than
necessarytoprotect the classifiedinfbrmation.
c. ( I ^ Altematives. As this testimony will be offered ora11y,it is not capable of
redaction. Should the witness require the use ofany classified documents, they will be used
tmder the SWR and^or projected by electronic displays, unless their content must be discussed o^
evaluated. As the witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield the witness'sidentify fiom the pubhc The classified content ofthe material
the witness will address, andnot just its overall significance, is necessary andrelevanL
Therefbre unclassified sunimary is untenable. Finahy the witness will be testifying to ntianced
infotmationrequiimg complicated explanation andmustremainfiee to describe it tothe factfinder and parties as they mayrequire. Therefbre, the witness'stestimony cannot be reduced to
code No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness if
both parties agree. Stipulations may be useful to estabhsh classification level asafact, and, if
relevanL to memoriahze the admissibilify ofmaterial such as the above documents Finally.fior
the reasons articidated above, the iufbrmation at issue is ciurently classifiedand will be at the
time of the trial, as harm couldstill occur asaresult ofunauthorized disclosure. Therefbre
declassification is not wananted.
27. fU)MrAdamPearson.JomtIEDDef^atOrganization(JIEDDO)

34193

a.

(U) Classified Information and Overriding Interest.

(2) (U) This portion ofMr.Pearson'stestimony relates to interests ofnational
securifyaddressedinEO 13526, Section 1.4(c)and(g).
H^. ( I ^ Scope of Closure. The Courtwoidd be closed only at the point which the
witness must disclose classified infbrmation The closure wotddtiierefbrebe no broaderthan
n^essaryto^tectthe classifiedinfbrmation.
^
(U) Altematives. As this testimonywill be offered orally,it is not capable of
c.
redaction. Should the witness require the use of any classified documents, theywill be used
tmder the SWR and^orprojected by electronic displays, unless their content must be discussed or
evaluated. As the witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield the witness'sidentify fiom the pubhc The classified content ofthe material
the wihiess will address,andnot just its overall significance, is necessary and relevanL
Therefbre tmclassified sununaryis untenable Einal1y,the witness will be testifying to niianced
infbrniation requiring cotnplicated explanation andmustremainfiee to describe it to the factfinder and parties as they mayrequire. Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibihfy forthis witness i f
both parties agree Finally,fbr the reasons articulated above, the infbrmation at issue is cunently
classified and will be at the time ofthe trial, as harm could still occur asaresult of imauthorized
disclosure.Therefbre declassification is not wananted.
2^.

(U)Mr.H.DeanPittinan.Department ofState
a.

(U) Classified Information and Overriding I n t e r s

(1) (U) Mr. H. Dean Pittman will testify about the content ofcables
originating fiom International Organizations on themerits (specifically 07 USUNNewYoi^
573;07USUNNewYork575;07USUNNewYork578),andwhythemfomiationrequires
protection against itnaiithorizeddisclostirefbrreasons ofnational defense or fbreignrelations,
including classified infonnation. This infbrmationisproperly classifiedatthe CONFIDENTIAL^
level according to the Department ofState Classification Review dated 30 October 201L

34194

Unauthorized disclosure o f i t could cause damage fo national securify. Therelbre. discussion of
this itifbrmation in open session would undermine national securify interests.
(2) (U) This portion oftestimonyrelates to interests ofnational securify
addressedinEO 13526, Sectionl4(bXd).
b.
(U) Scope of Closure. TheCourt would be closed only at the point which the
witness must disclose classified infbnnation The closure would therefbre be no broader than
necessary to protect the classified infbrmation.
c.
(U) Altematives. As this testimony wdl be offered orally.it is not capable of
redaction. Should the witness require the use ofany classified documents, they will be used
tmder the SWR and/orprojected by electronic displays, unless their content must be discussed or
evaluated As die witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield the witness'sidentify fiom the pubhc. The classified content ofthe material
the witness will address, and not just its overall significance, is necessary and relevanL
Therefbre imclassified sunimary is imtenab1eFinahy,the witness will be testifying to ntianced
infbrmation requumg complicated explanation andmustremain free to describe itto the fitct
finder andparties as they mayrequire Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness i f
both parties agree. Stipulations maybeusefiiltoestabhshclassificationlevelasafacL and. i f
relevanL to memorialize the admissibihfy ofmaterial such as the above documents.Finally.for
the reasons articidated above, the infbrmation at issue is currentiy classifiedand will be at the
time of the hrial, as harm could still occur asaresult of unauthorized disclosure Therefbre
declassification is not wananted
29
a.

(reclassified Information and Overriding InteresL

(2) (U) This portion oftestimony relates to interests ofnational securify
addtessedmEO 13526, Sectionl4(c)(g)
b

Scope ofClosure.

^

34195

(2) (U) As the witness'sassociation with this proceeding as well as die
subject matter of testimony is classified, die courtroom closed forthe entirefy of this individual's
testhnony,uicluding the announcement ofthe witness'sname
c. (U) Alternatives. As diis testimony will be offered orally.it is not capable of
redaction Should the witness require the use ofany classified documents, theywill be used
luiderthe SWR and/orprojected by electronic displays, unless their content must be discussed t^
evaluated As the witness'sidentify is itself not classified, no disguises or screens wdl be
necessaryto shield the witness'sidentifyfiom the pubhc Tbe classified content ofthe material
the witness will address, andnotjust its overall significance, is necessary and relevanL
Therefbre imclassified siimmaiyis untenable Finally,the witness will be testifying to nuanced
infbrmation requuing complicated explanation andmustrernain free to describe it to the factfinder and parties as they mayrequire. Therefbre, the witness'stestimony cannot be reduced to
code No stipulations have been agreed upon to date, althoughapossibihfy fbr this witness if
both parties agree Finallyfbrthe reasons articulated above, the infbrmation at issue is cunently
classified and will be at the time of the trial, as harm could still occur asaresult ofunauthorized
disclosure Therefbre declassification is not warranted.
30

(U^AMBSteohenSecheDenartment ofState
a.

(UnclassifiedInfomnation and Over^^^d^Inter^t^

(1) (U) AMB Stephen Seche win testify about die content ofcables
originatingfromthe Near East on the merits(specifica11y,05 Algiers 1836: 06 Algiers 1961:06
Baghdad2646:06Baghdad4205;06Beimt3603;06Behut3604:06Beurut3703;06Ruwait
4430; 061^uwait 4438; 06Riyadh8811;06Tripoh 645; 06Tripoh648;078aghdad35; 07
Baghdad36:07Baghdad37;07Baghdad42;O^Baghdad53;07Baghdad56;07Baghdad63;
07Baghdad64;07Baghdad70;07Basrah3;07Beimtl958;07Riyadh21;07Riyadh22;07
Riyadh23:07Tunis47;08Amman535;08Cairo569:09Baghdad2390:09Riyadhll56:10
Rabat 294), and why the infbnnation requires protection against imauthorized disclosure fbr
reasons ofnational defense or fbreign relations, including classified infbrmation This
infbrmation isproperly classifiedat theCONFIDENTTALand SECRET level accordingto die
Department ofState Classification Review dated 30 October 2011. Unauthorized disclosure ofit
could catise damage to national sectirity Therefbre, discussion of this infbnnati^ in open
session would undennine national security interests.

34196

(2) (U) This portion oftestimony relates to interests ofnati^^l securify
addressedinEO 13526,Sectionl4(a)(bXd)
b.
(U) Scope of Closure. The Courtwoidd be closed onfy atthe pointyi^ich the
witness must disclose classified infbnnation. The closure wotdd therefbre be no leader than
necessaryto detect the classified information.
c. (U) Alternatives. As thistestimonywill be oflered oralfy.itis not capable of
redaction. Should the witness require the use ofany classified documents, theywill be used
tmderthe SWR and^orprojected by electronic displays, mdess their content must be discussed or
evaluated. As the witness'sparticipationis itself not classified, no disguises or screens will be
necessaryto shield the witness'sidentifyfromthe public. The classified content ofthe material
the wihiess will address,andnot just its overallsignificance, is necessary andrelevanL
Therefore unclassified summary is untenable. Finally the witness will be testifying to ntianced
infbrmation requiring complicated explanation andmustretnain free to describe it to the factfinder and parties as they mayrequire. Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed i^oon to date, althoughapossibilifyforthis witness if
both parties agree Stipulations may he useful to establish classification level a s a ^ t , and, if
relevanL to memorialize the admissibilify ofmaterial such as the above documents Fina11y,fbr
the reasons articidated ahove, the infbrmation at issue is cunendy classified and will be at the
time of the triaL as harm could still occur asaresuh of unauthorized disclosure, Theref^e
declassification is notwananted.
31.

(U) SA David Shaver. US Department ofTreasuiy
a.

(U) Classified Information and O^errtding InteresL

(2^ (U) This portion oftestimony relates to mterests ofnational securify
addressedmEO 13526, Sectionl4(c)(g).
b. (U) Scope of Closure. The Courtwoidd be closed only at thepomty^ch the
witness must disclose classifiedinfbrmation The closure wotdd therefbre be no broaderthan
necessaryto protect the classifiedinfbrmation.

34197

c. (U) Altematives. As this tesfhnonywillbe oflered orally,it is not capable of
redaction. Shotdd the witness require the use ofany classified documents, they will be used
tmder the SWR and^or projected by electronic displays, ludess their content must be discussed^
evaluated. As the witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield die witness'sidentifyfiom the public. The classified content ofthe material
the witness will address,andnotjust its overall significance, is necessary and relevanL
Therefore unclassified summary is untenable. Einahy.the witness will be testifying to niianced
infbrmation requiring con^hcated explanation andmustrernain free to describe itto thefacts
finderandpaities as they mayrequire Therefbre, the witness'stestimony cannot be redi^ed to
code No stipulations have been agreed upon to date, althoughapossihdify forthis witness if
both parties agree Stipulations may be useful to estabhsh classification level asafacL and, if
relevanL to memorialize the admissibihfy ofmaterial such as his fbrensic reports. Finally.fbr
the reasons articulated above, the infbrmation at issue is currently classified and will be at the
time of the trial, as harm could still occur asaresult of unauthorized disclosure. Therefbre
declassification is not wananted,
32.

fU) Ms. Cathie StrobL Central Intelligence Agency
a.

(U) Classified Information and Overriding InteresL

(2) (U) This portion oftestimonyrelates to interestsofnational securify
addressedinEO 13526, Section 1.4(c)(g).
^.
(U) Scope of Closure. TheCourt would be closed only atthe point which the
witness must disclose classified infbnnation The closure would therefore be no broader than
necessarytoprotect the classifiedinfbrmation.
c. (U) Altematives. As this testimony will be offered orally.it is not capable of
redaction Shotdd the witness require the use ofany classified documents, they will be used
tmderthe SWR and^orprojected by electronic displays, ludesstheur content must be discussed or
evaluated. As the witness'sparticipation is itselfnot classified, no disguises or screens will foe
necessaryto shield the witness'sidentifyfrom the public Tlie classified content ofthe material
the witness will address, andnotjust its ove^all significance, is necessary and relevanL
Therefbre unclassified summary is untenable Finahy,the witness will be testifying to niianced
infbrmationreqitiringcotnphcated explanation andmustrernain free to describe itto the fact^

34198

finder andparties as they mayreqmre Therefore, die witness'stestimony cannot be redi^edfo
code. No stipulations have been agreed upon to date, althoughapossibihfy forthis witness i f
both parties agree Stipulations may be usefiil to establish classification level asafacL and. i f
relevanL to memorialize the admissibihfy ofmaterial such as is described above Finally,fc^tte
reasons articulated above, the infbnnation at issiie is ctinently classified and will be at the time
of the triaL as harm could still occur asaresult ofunauthorized disclosine Therefbre
declassification is not wananted.
33.

(U)Ms Louis Travieso, USCENTCOM
a.

(U) Classified Information and Overriding InteresL

(1) (U) Ms.Louis Travieso wdl testify about the content ofthe charged
document(s)contauungJ2infbnnation,andwhydieinfonnationrelatestodienationaldefeise,
including classified infonnation This infbnnation is properiy classified at SECRET level
accordingtotheUSCENTCOMClassificationReviewdated21 October 2011 Unauthorized
disclosure o f i t could cause damage to national securify Therefbre, discussion ofthis
infiormati^ in open session wouldiuidenninenational securify iriterests.
(2) (U)This portion oftestimonyrelates to interests ofnatioi^ securify
addressedmEO 13526, Section14(c)
Hl^^ (U) Scope of Closure. TheCourt would be closed only atthe point which the
witless must disclose classified infbnnation The closure would therefbre be no broader than
necessarytoprotect the classifiedinfbimation.
c
(U) Altematives. As this testimonywill be oflered oralfy.it is not capableof
redaction. Should the witness require the use ofany classified documents, theywill be used
luider the SWR and/orprojected by elechronic displays, tudesstheur content must be discussed or
evaluated. As the witness'sparticipation is i t s e l f i n classified, no disgiuses or screens will be
necessaryto shield the witness'sidentifyfrom the public. The classified content of the material
the witness will address,andnotjust its overall significance, is necessary and relevanL
Therefbre uticlassifiedsunimaryisimtenab1e.Finahy,the witiiess will be testifyuigto nuanced
infbnnation reqttiring complicated explatiation and must retnain free to describe it to the factfinder and parties as theymayreqitire. Therefbre, the witness'stestimony cannot be reduced to
code. No stipulations have been agreed upon to date, althoughapossibihfy fbr this witness i f
both parties agree Finally, fbr the reasons articulated above, the infbrmation at issue is cunently
classified and y^h be at the time ofthe trial, as harm coidd still occur asaresuh of imauthorized
disclosure. Therefbre declassification is not warranted.
34.

(U^RDMLDavidWoods, Strike Force Training Pacific
a.

(U) Classified Information and Overriding InteresL
^

34199

(1) (U)RDMLDavidWoodswdltestifyasanOCAthatJTFGTMO
infbrmation was properly classified, including classified information. Toexplain the foasis ofhis
classifications, he must discuss the details ofdiesubjectmatter he isclassifying. This
information isproperlyclassifiedat SECRET level accordingto the JTE-GTMOClassificati^
Review dated4November 2011 Unauthorized disclosineoftiiis mformation could cause
(senous)darnage to national securify.Therefbre, discussion of this infbnnation in ^ : ^ n s ^ i o n
would undermine national securify iuterests,
(2) (U)This portion ofRDMLDavidWoods'stestmiony relates to interests
ofnationalsecitrifyaddressedinEO 13526, Section 1.4(c).
b.
(U) Scope of Closure. TheCourt would be closed only at the pointwhich
RDMLDay^dWoods must disclose classified infbrmation The closure would therefbre be no
broaderthannecessaryto protect the classified information.
c.
(U) Altematives. As this testimony wdl be offered orally,it is not capable of
redaction Should the witness require the use ofany classified documents, theywill be used
imder the SWR and/orprojected by electronic displays, unless their content must be discussed^
evaluated. As the witness'sparticipation is itselfnot classified, no disguises or screens will be
necessaryto shield the witness'sideitify from the pubhc Tbe classified content of the material
the wihiess will address, andnotjust its overall significance, is necessary andrelevanL
Therefbre tmclassified suinniary is tmtenable.Finahy. the wihiess will be testifying to ntianced
infbrmation requiimg complicated explanation and must remain free to describe it to die factfinder and parties as they mayrequire. Therefbre, the witness'stestimony cannot be redt^ed to
code.No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness i f
both parties agree Fitially,fbr die reasons articulatedabove, the infiormation at issue is currently
classified and will be at the time ofthe trial, as harm could still occur asarestdt of unauthorized
disclosure. Therefbre declassification is not warranted.
35

(L^AMBDonYamamoto, Department ofState
a.

(reclassified Information and Overriding InteresL

(1) (U) AMB DonYamamoto will testify about the content ofcables
originating fromAfiica on the merits(specifically, 07 Addis Ababa 2197; 07 Lagos 719; 08 Dar
EsSalaam206:08Rhartoum246;08Rhartoinn428:09A^sAbaba
1063:09Bamako85;10
Pretoria 636), and whythe infbimationrequires protection against unauthorized disclosure fbr
reasons ofnational defense or fbreign relations, including classified infbrmation. This
infonnation is properly classified at the CONFIDENTIAL level according to the Departmeit of
State ClassificationReviewdated30October20Il. Unauthorized disclosine o f i t could cause
damage to national securify Therefbre, discussion of this infiormation in open session would
imdenniue national securify interests.

34200

(2) (U) This portion oftestimony relates to interests ofnational securify
addressedinEO 13526, Section14(bXd).
b.
(U) Scope of Closure. TheCourtwoidd be closed onfy at the pointwhich the
witness must disclose classified infbnnation. The closure wotdd therefbre be no broaderthan
necessarytoprotect the classified infbnnation.
c. (U) Altematives. As dnstestimonywillbeof^leredoralfyitis not capable of
redaction. Should the witness require the use ofany classified documents, theywill be used
itnderthe SWR and/or projected by electronic displays, unless their content rnust be discussed or
evaluated As the witness'sparticipationis itselfnot classified, no disguises or screens will be
necessaryto shield the witness'sidentifyfromthe public The classified content ofthe material
the witness will address,andnotjust its overall significance, is necessary and relevanL
Therefiore tmclassified stimniary is tmtenable.Fitiahy,the wihiess will be testifying to nuanced
inlbnnation requiring coniplicatedexphmation andmustrernain free to describe it to the factfinder and parties as they mayrequire Therefbre, the witness'stestimony cannot be reduced to
code No stipulations have been agreed upon to date, althoughapossibilifyfbrthis witness if
both parties agree Stipulations may be usefiil to establish classification level asafacL and, if
relevanL to memorialize the admissibihfy ofmaterial such as the above documents. Finally,fbr
the reasons articidated above, the information at issue is cunentiy classified and will be at the
time ofthe ttial, as harm could still occurasaresult ofunauthorized disclosureTherefrr^e
declassification is not warranted.
36. (U) AMB MarieYovanovitch, DepartmentofState
a.

(U) Classified Inlormation and Overriding InteresL

(1) (U) AMB MarieYovanovitch will testify about the conteit of cables
originatingfromor sent to Europe or Eurasia on the merits(specifically,10Re^avikl3;06
Belgrade 1681;06Madrid 2955; 06 Madrid 2956; 06 Pristina 947;06Pristma 948; 07 Ankara
23;07Ankai^2468;07Bratislava665;07Minsk1024;07Moscow5824;07Moscow5825;07
Paris4722;07Paris4723;07Re^avik203;07Vilnius13;09Paris217;09Prague88;09
^
Pristina 58: 09 State 92632; 09 State 92657;09Brussels382;09Geneva347),andwhythe
information requites protection against imauthorized disclosiire fbr reasons ofnational defi^tiseo^
fbreign relations, including classified infomiation. This infbrmation is properiy classified at the
CONFIDENTTALandSECRETlevelsaccordhigtodie Department ofStateClassification
Review dated 30 October 2011 Unauthorized disclosure ofit could cause damage to national
secm^fy.Therefbre,disctission of this infbrmation in open session wotdd undennine national
secmrify interests.
(2) (U) This portion oftestimony relates to interests ofnationalsect^fy
addressedmEO 13526, SectionI4(a)(bX^X^)
^

34201

b. (U) Scope of Closure. The Court wotdd be closed oidy at the point which the
witness must disclose classified infbnnation. The closure would therefrore he no broaderthan
necessaryto^otect the classifiedinfbrmation.
c. (U) Altematives. As this testimonywill be of^redoraIly,it is not c ^ b l e of
redaction. Should the witness require the use ofany classified documents, they will be used
tmderthe S^^ and/orprojected by electronic displays, tudess their content must be discussed^
evaluated. As the witness'sparticipation is itselfnot classified, no disguises or screeis will be
necessaryto shield the witness'sidentifyfrom the pubhc. The classified content ofthe material
the witness will address, andnotjust it^ove^all significance, is necessary and relevanL
Therefbre tmclassified summary is tmteuable. Finally.the witness will be testifying to nuanced
information requiring comphcated explanation andmustrernain free to describe it to the factfinder and parties as they may require Therefbre, the witness'stestimony cannot be reduced to
code No stipulations have been agreed t ^ n to date, althoughapossibihfyfbrthis witness ifhoth
parties agree Stipulations may be usefid to estabhsh classification level asafact, and, if
relevanL to memorialize the admissibihfy ofmaterial such as the above documents. Finally,fbr
thereasons articulated above, the infomiation at issue is cunentiy classifiedand will be at the
timeofthe hrial, as harm couldstill occur asaresult ofunauthorized disclosure. Therefbre
declassification is not wananted.
37. (U^Mr. Joseph Ytm, DepartmentofState
a.

(UnclassifiedInlbrmation and^erridingInteresL

(1) (U) Mr Joseph Yun will testify about the conteit of cables originating
fromEastAsiaand die Pacific on the merits(specifically, 06 Seoul 3882; 06 Seoid 3885; 06
Suva489;06Taipei 3830; 07Bangkokll1;07Beijmgl52;07RualaLtunpur 40: 07 Rangoon
22; 07 Stryal8: 07 Vientianel2:10Tokyo 627), and whythe information requires protection
againsttmauthorized disclosure fbr reasons ofnational defi^nse or fbreign relations, including
classified uifbrmation This iufbrmation is properly classified at the CONFIDENTIAL and
SECRET levels according to the Department ofState Classification Review dated 30 October
2011. Unauthorized disclosure ofit could cause damage to national securify. Therefbre,
discussion ofthis in^rmation in open session would tindermine national securify interests.
(2) (U)This portion oftestim^y relates to interests ofnational securify
addressedmEO 13526, Sectionl4(bXd)
b. (U) Scope of Closure. The Court wotdd be closed only atthe point which the
witness must disclose classified information. The closure wotdd therefore he no broader than
necessarytoprotect the classified iufbrmation.
c.

(U) Altematives. As diis testimonywill be offered orally.it is not capable of
3^

34202

redaction. Sliotdd die witness require the use ofany classified dociunents, theywill be used
tmder the SWR and/or projected by electronic displays, unless their content must be discussed o^
evaluated As the wimess'sparticipation is itselfnot classified, uo disguises or screens will be
necessaryto shield the witness'sidentify from the pubhc. The classified content ofthe material
the witness will address, andnotjust its overall significance, is necessary and relevanL
Therefbre tmclassified summary is untenable Finally. the wihiess will be testifying to nuanced
infbrmation requumg comphcated explanation andmustrernain free to describe it to the factfinder and parties as they mayrequire. Therefbre, die witness'stestimony cannot be reduced to
code. No stipulations have heen agreed upon to date, althoughapossibilifyfbrthis witness i f
both parties agree Stipulations may be useful to establish classification level a s a ^ L ^ n d , i f
relevanL to memorialize the admissibihfy ofmaterial such as the above documents. Einally,fbr
the reasons articulated above, the infbnnation at issue is cunentiy classifiedand will be at the
time of the trial, as harm could still occur asaresult of unauthorized disclosureTherefore
declassification is not wananted.
H.

(U)PROPOSEDTRANSinONINGPROCESS

(U) Under RCM 806(bX2)andMRE505(i), die Mditary Judgemayorderportionsofdie
Court-Martial closed to the public in orderto hear classified infbnnation. Should the Court order
suchaclosing, the United States proposes the Court use the procedures detailed below,
A.

(U^ Transition from Open to Closed

(U//FOUO) When closing the courtroom, both infbrmation andph^calsecnrify mustbe
addressed. The procedures fbr achieving physical security of the btuldingouthned below are
derived from the Fort Meade Classified Meeting andConferences Standard Operating Procedure.
They cover fbur main areas. First,judicial personnel identified below will need to ensure that
onlypeople with proper clearance and need-to-know are present fbr classified proceedings
Second, extemal cotmections wdl need to be severed. Third, equipment cleared fbr classified
use win need to be set up anden^loyed bythe Court Reporter. And last, courtroom officials
will coordinate with the Court Securify Officer to eisure proper evidence accountabihfy and
courtroom classification status
1.

(OPhysicalCourtroom Security

(U//FOUO)Totransition from an open toaclosed session, die Comt should cal^A
arecess. Ascript with proposed language fbr e^ectuating the stages of closure is attached.
Enclosurel. One bailiffwill advise the spectators that the court has been closed. Then, the two
MPs will clear the courtroom ofall spectators The spectators will be advised that theymay
relocate to the overfiow trailer orwait outside the building Spectators will experiencea
courtroom closme, just as theywould any other recess. TheUnited States will endeavorto
schedule sessions involving witnesses who necessitate closure fbr first thing in the morning, at
lunch time, or befbre dinner.

34203

(U//FOUO)After spectators have been escorted from the courtroom, one MP
and one unit escort wdl inspect the courtroom building fbr any spectators who may have
remained behind. The other escort will remain behind to guard the accused, whde the second
MP posts at the building front door to control access Afrerthe inspection, this detail will rehum
to the courtroom and check in with the CSO
(U//FOUO) While the inspection fbr spectators is being conducted, the CSO
will cut all media feeds by pressing the appropriate control switch to cease transmission. The
operations legal aduiuiistrator will verify with onePAOrepresentative stationed in the
Smallwood Hall media space that the audio/visual feedhas been cuL He wdl then verify in
person that the feed has been cut to the overflowtrader. Upon completion, he will alert the CSO^
that the media feedhas been successfully cuL PAOrepresentatives wdl not be allowed in the
courtroom during closed sessions,
(U//FOUO) Once the CSO confirms that all spectators have lefi and the media
feed has been cuL all personnel in the courtroom itselfwill file into the hallway through the
pubhc coturtroomenhrance The CSO and one MP will exit the courtroom first (throu^ the
public entrance) The CSO will then post at the public enfrance to the courtroom, while the MP
gtiards the hallway to prevent anyone from travehng past the pubhc entrance room. The accused
and one luiit escort will then move to the defense office (through the courtroom side door) and
the Military Judge and paralegal wdl exit through the Court'sentrance, and the baihf^ and court
reporter wih exit thiough the pubhc eitrance,
(U//FOUO) While individuals are absent from the courtroom, the MPs with
mditarywoiking dogs will conductasecurify sweep ofthe courtroom and the cyber securify
team will conductatechnical sweep" ofthe courtroom itself After the sweeps, the CSO will
re-enter the courttoomfirsL He will dnen post at the enttance ofthe public waitingroom into th^
courtroom itself and visually check the badges of each person who proceeds hack into the
courfroom to detennine that each individual holdsaclearance at or above the level of
classification fbr the information expected to be considered during the session. TheGovenunet^
will have previously checked the securify clearance of individuals in attendance(e,g.govemme^^
representatives, defense experts)to ensure that striped secturify badges have been made fbr and
issued to only those individuals with appropriate clearances. Those Government r^resentatives
present because the testimonyunplicates the equities oftheir organization will also be checked ^
againstaneed-to-knowlisL This listwill have been prepared bythe Unit^Statesinadvanceo^
the session fbr each witness whose testimonyrequires closure.
(U//FOUO)Afier courtroom checks have been completed, the de^i^e securify
expert will visit the defense trailer to advise anyone within it ofthe closedsession and verifythe
securify badges and need to-know of those occupants If the trader is unattended, he will turn o ^
the video ^ed and lock the door. Meanwhile, the prosecution securify expert will do the same in
the prosecution trailer The extemal MPs will guard all trailers to ensure no unauthorized access

34204

occtns. The securify experts will retum to theconrfroomandnotifythe CSO thatthe trailer
checks are complete,
(U//FOUO) While the trailer checks occur, theCSOwillretrieve the classified
recording equipment (previously staged by him inacourtroomsafe)and provide it to the Com^
Reporter. TheCourt Reporter wdl then set t ^ and use equipment cleared fbr processing
classifiedmaterial, while the CSO returns tte unclassified equipment to the safe. TheCSO,the
govemmenL or the defense will retrieve any classified materials needed fbr the hearing The
CSO must see each item and be aware of all classified materials in theCotutroom. The CSO
will complete the Closed Hearing Checklist and give it to die court reporter.
Enclosure 2.
(U//FOUO)Upon completion of the checklisL the courtroom will be readyto
hostaclassifiedhearing(up to the "SECRET" level) At the next recorded classified session, the
Trial Counsel widannotmceon the record the higli^texpectedclassificationlevelfbrdi^
hearing.
^
2.

(U) Electronic Security

(U//FOUO) The WolfhoundandWatchhound systems, whichmonitorthe
transinissionofwireless electronic datafromthe cotirtroom^ih^^ntinue to monitor during
classified proceedings While theycapture no substance,tiieiruseenables securitypersonnel to
alerttheCoiut should data transmission be detected during die hearing.
3.

(U)Sectu^ty Outside the CotirtroomTts^l^

^
(U//FOUO) The MP will positioned him /herselfat the main enfrance to the
buildingwillconductalOO^ ID card check at this dooruntil the closedsession is con^leted.
(S)he will check identification againstaroste listing individuals withaneed-to-know fbr the
specific testimony occunmgdiumg that closure and check fbr proper clearance level (noted by
the type ofprosecution-issued badge they cany). Anyone whose association with die
proceedings or identity may be classified will be assignedanumber and escorted to the
couittoom byamember of the prosecution team The hst ofpeople with authorized access to
closedproceedmgswillbetestimonyspecificandhavebeenpreparedbydieprosecutionin
advance ofclosure. Ifclosure must occur tinexpectedly,onlyprosecution and delense teams will
be authorized fbr courtroom attendance: however, no need-to-know equify holders will be
allowed unless onalist fbr the witness testifying
(U//FOUO) Upon completing their sweep fbr additional spectators and checking
in with the CSO, the escort and MP will post outside the courtroom itselfto monitor the hallway.
This hallwaywill serve asastandoff area between the courtroom and the main entrance. Asign
thatprohibits entry and advises that classified infbnnationis cunentiy beingprocessed will be
^ postedat each entrance to the courfroomfromthe hallway. This sign is attached as Enclosure 3.
^ The fence line along the facdity'souterperimeterwill be what secures the outside enfrances to

34205

the buildmgAccorduigto guidance from dieS2,extemalMP'swill patrol this area
B.

(U^Transition from Closed to Open

(U//FOUO)Totransitionfromaclosed to an open session, IheTrialCounselmust
announce the Invest classification level ofinfbrmation discussed dtning the classified session.
Also, classified material and eqtupment must be secured. Then, extemal connections must be
restored and spectators allowedtore-ente^the courtroom The responsibdify ofindividuals and
the orde^ of actions which must be taken to effectuate this transition is detailed below.
(U//FOUO)Once theCourt orders the cotu^room opened, the TrialCounscl will announce
the highest level ofdassification ofthe hearing on the record. Then the Court shotdd then
announcearecess. The CSO wdl collect the dassified court reporting equipment and sectu^e it in
the safe-rehiming with the tmclassified equipment fbr the cotnt reporter to assemble The CSO
will also secure any notes that may have been taken by individuals who were present dtnringthe
classified session, and store them in the cotutroomsafe Each parfy has been giveiadrawerin
the safe fbr separate storage; each drawer has its ov^ lock. Before the Court'snotes are secured^
the Court will prepare an tmclassified summary of the proceedings, and the Court Securify
O^cerwill review it fbr spillage ofclassified infbrmation. Any classified information in tte
Court'spossession will then also be secured bytheCourt Securify Officer.
(U//FOUO)Once theCourt Securify Officer has verified that no classified mateial is in the
courtroom, (s)he will reconnect the media feed. ThecottrtroomPAOwdlverifywiththe
previously identified satellite locations that the media feed has been successftidy reestablished.
Abaili^^ will notify die securify detail at the door and in the hallwaythat the classified portion
has ended The OlCwill alert the spectators that the session has reopeied and usherdiem back
into the courtroom The Court Securify Officerwill complete the enclosed OpenHearing
ChecklisL afier which point, normal open courfroom procedures fbr an unclassified hearing
restmie.^^^Euclosure2 Ascript with proposed language fbr effectuating the stages of opening
the cottrUoom is attached fbr theCotirts consideration.
Enclosurel.
^^^^^^^^
(U) In the interests of applytngascalpel to courtroom closure decisions, the United States
proposes this Article 39(a)session be open. The United States believes discussion ofclosure and
associated procedtues can be held in open session and any dassified materials referenced in the
filing can be provided fbr theCourt'sreview^vithoutpubhc disdosure However, shotdd th^^
Court require oral testimony or wish to discuss with counsel the contours oftiie classified
assertions or materials provided, for the same reasons articulated above, courtroom closure is tte

34206

onlywayto protect diosediscusstons.Ascripttoclose the proceedingfbrthese purposes is also
enclosed.
Enclosurel.

ASHDENFEIN
f^AJ,JA
TrialCounsd
(U)lcertif^th^tlset^ed or caused to be servedatrue copy of the above, via SIPRNET
email, to Mr, David Coombs, Civilian Defense Counsel, though the defense security experts on
31 January 2013.

^Enclosures
1. Scripts
2. Battle Drill Checklists
3. "Classified Work in Progress^'Sign

ASF^DENFEIN
^AJ,JA
Trial Counsel

0 34207

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES RULING: GOVERNMENT

MOTION TO PRECLUDE

OVER-CLASSIFICATION

EVIDENCE ON MERITS

AND SENTENCING AND DEFENSE
MANNING, Bradley E., PFC MOTION FOR JUDICIAL NOTICE
U.S. Army, OF HR. 553 AND CONGRESSIONAL
U.S. Army Garrison HEARINGS DISCUSSING
Joint Base Myer-Henderson Hall CLASSIFICATION
Fort Myer, Virginia 22211



DATED: 31 January 2013

GOVERNMENT MOTION TO PRECLUDE EVIDENCE OF OVER-CLASSIFICATION:

On 14 December 2012, the Government moved to preclude the Defense from raising general over?
classi?cation during both the merits and sentencing phases of the trial. On 28 December 2012, the
Defense ?led a response opposing. After considering the pleadings, evidence presented, and argument of
counsel, the Court ?nds and concludes as follows:

Findings of Fact:

1. The accused is charged with one speci?cation of aiding the enemy in violation of Article 104, Uniform
Code of Military Justice (UC MJ), one speci?cation of disorders and neglects to the prejudice of good
order and discipline and service discrediting in violation of Article I34, UCMJ, eight speci?cations of
violations of 18 U.S.C. 793(e) and Article 134, UCMJ, ?ve speci?cations of violations of 18 U.S.C.
641 and Article 134 UCMJ, two speci?cations of violations of 18 U.S.C. l030(a)(l) and Article I34,
UCMJ, and ?ve speci?cations of violating a lawful general regulation, in violation of Article 92, UCMJ .
The time period of the charged offenses is from on or about I November 2009 on or about 27 May
2010.

2. Defense proffers that it will offer the following evidence for merits and sentencing:

a. Mr. Cassius Hall will testify that much of the charged information could not cause damage to
the United States and was not closely held.

b. Mr. Charles Ganiel will testify that the vast majority of the information within the charged
diplomatic cables was already in the public realm prior to the accused?s alleged communications of that
information.

c. Ambassador Peter Galbraith will testify that many Department of State cables are, in his
experience, over-classi?ed and that a secret classi?cation does not mean the information is genuinely
secret.

d. House Resolution (H.R.) 553 (Reducing Over-Classi?cation Act) (7 October 2010),
Transcripts of House Committee Meetings on the Espionage Act (16 December 20! 0) and 2007 House
1

APPELLATE EXHIBIT
PAGE REFERENCED:
PAGE or PAGES 4



0 0 34208

Committee Meetings on Over-Classi?cation (22 March, 26 April, and 28 June 2007). In a separate
motion, the Defense requests that the Court takejudicial notice of this information.

3. H.R. SS3 ?Reducing Over-classification Act? was enacted into law on 7 October 2010 as Public Law
(PL) 1 l-258. This was after the dates of the charged offenses and before the Original Classi?cation
Authority (OCA) classi?cation reviews. The Court will henceforth refer to H.R. 553 as PL 1-258.

4. Merits - Defense. Defense argues that evidence of general over-classi?cation is relevant to the merits
for the offenses charged that violate I8 U.S.C- 793(e) and l030(a)(l) for the following reasons:

a. those offenses require the Government to prove that the accused had reason to believe
information communicated could be used to the injury of the United States or to the advantage of any
foreign nation. This necessarily requires the fact ?nder to consider the nature of the information.
Evidence of over-classi?cation is relevant to the nature of the information.

b. for 8 U.S.C. 793(e) offenses only - general over-classi?cation is relevant to whether the
information communicated ?relates to the national defense?. This element requires that the information
be ?closely held" and that disclosure of the information would be potentially damaging to the United
States or might be useful to an enemy of the United States.

c. Over-classi?cation allows the defense to paint a full picture of the context in which the
classi?cation decisions were made. The signi?cance of over-classification relates to what weight the
Court should accord to the fact of classification itself to determine whether the accused had reason to
believe the documents could cause damage to the United States and whether the documents at issue relate
to the national defense.

d. Over-classi?cation evidence is relevant evidence of bias of the Original Classi?cation
Authority (OCA), allowing both cross-examination and extrinsic evidence under MRE 608(c).

5. Merits - Government: The Government argues the following to preclude evidence of general over-
classi?cation on the merits as not relevant to any charged offense or cognizable defense:

a Evidence of general over-classi?cation is not relevant to whether the documents issue were
properly classi?ed by the relevant OCA.

b. The accused authority to determine whether information could
injure ?re United States with respect to classi?cation.

c. Evidence of general over-classi?cation is not relevant as to the nature of the information
communicated or to determine whether the charged information could be used to the injury of the United
States or to the advantage of a foreign nation.

d. Evidence of over-classi?cation after the dates of the charged offenses is not relevant to the
accused's intent at the time of the offenses.

6. Sentencing: In its Motion for Judicial Notice of HR. 553 and Congressional Hearings Discussing
Classi?cation, the Defense avers that evidence of general over-classification is relevant to sentencing in
that evidence that the classi?cation system was broken and its condition had negative consequences for
the nation would tend to shift some of the culpability from the accused to the system itself, thus tending to
lower his punishment. The Government argues evidence of general over?classification presents neither

2





matters in extenuation nor mitigation because the information was not in existence nor known to the
accused at the time of the charged offenses and, even if relevant, should be excluded under MRE 403 as
an undue waste of time.

7. The Government intends to prove on the merits that a relevant OCA conducted an original
classi?cation review of the information allegedly communicated in the charged offenses in accordance
with Executive Order Number (E0) 13,526 (29 December 2009).

The Law:

1. Relevant evidence is evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be without the
evidence. MRE 401. Relevant evidence is necessary when it is not cumulative and when it would
contribute to a party?s presentation of the case in some positive way in a matter at issue. The military
judge has the initial responsibility to detennine whether evidence is relevant under MRE 401. US.
White, 69 M.J. 236 (C.A.A.F. 2010).

2. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United
States as applied to members of the armed forces, the code, these rules, this Manual, or any Act of
Congress applicable to members of the armed forces. Evidence which is not relevant is not admissible.
MRE 402.

3. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence. MRE 403.

4. MRE 608(c) provides that bias, prejudice, or any motive to misrepresent may be shown to impeach a
witness either by examination of the witness or by evidence otherwise adduced. The rule allows both
cross-examination of the witness and extrinsic evidence.

5. RCM 1001(c) governs matters to be presented by the Defense during sentencing. In relevant part, the
rule allows the Defense to present matters in rebuttal to any material presented by the Government and
matters in extenuation and mitigation. Matters in extenuation serve to explain the circumstances
surrounding the commission of an offense, including those reasons for committing the offense which do
not constitute legal justi?cation or excuse. Matters in mitigation of an offense are reasons to lessen the
punishment of an offense or to furnish grounds for recommendations of clemency.

6. Sentencing Relaxed Rules. RCM l00l(c)(3) authorizes the military judge, with respect to matters
in extenuation or mitigation or both, to relax the rules of evidence. This may include admitting letters,
affidavits, certi?cates of military and civil of?cers, and other writings of similar authenticity and
reliability. R.C.M. l00l(c)(4) provides that when the rules of evidence have been relaxed for the
Defense, they may be relaxed during rebuttal and surrebuttal to the same degree.

7. E0 13,526 governs Classi?ed National Security Information. Only OCAS are authorized to detennine
what infonnation is originally classi?ed in accordance with E0 13,526 and the level of classi?cation.
Under E0 13,526, when an OCA classi?es infonnation at the Secret level, the OCA determines that
unauthorized disclosure of the information could reasonably be expected to result in damage to the
national security and identi?es or describes the expected damage.

0 34210

8. E0 13,526 Part 2 governs Derivative Classi?cation. Persons who reproduce, extract, or summarize
classi?ed information or who apply classi?cation markings derived from source material or as directed by
a classi?cation guide need not be OCAs.

9. Section 1.8 of E0 13,526 establishes procedures for authorized holders of information to challenge
classi?cations they believe, in good faith, are improperly classi?ed. These procedures do not include self-
help communication of classi?ed information such persons believe is improperly classi?ed to those not
authorized to receive the classi?ed information.

10. For l8 U.S.C. 793(e), classi?cation may demonstrate that an accused has reason to believe that
information relates to the national defense and could cause harm to the United States. Not all information
that is contained on a classi?ed or closed computer system pertains to national defense. Not all
information marked as classi?ed, in whole or in part, may, in fact, meet the criteria for classi?cation.
Infonnation not marked classi?ed may meet the standards for classi?cation and protection, particularly
with respect to information received tluough oral means or information the recipient should have reason
to believe warrants protection. US. v. Diaz, 69 M1. 127 (2010).

Conclusions of Law Evidence of Over-Classi?cation on the Merits:

1. Evidence of general over-classi?cation is not relevant to the nature of the information allegedly
communicated in the speci?cations alleging violations of l3 U.S. C. 793(6) and l030(a)(l There is
no nexus between general over-classi?cation and the information allegedly communicated in this case.

2. Evidence of general over-classi?cation is not relevant to whether the information charged in the
speci?cations alleging violations of 18 U.S. C. 793(e) relates to the national defense and was closely
held. Infonnation does not have to be classi?ed to relate to the national defense. However, it does have
to be closely held by the Government. Original classi?cation of information by an OCA in accordance
with E0 13,526 is evidence that the communicated infonnation was closely held by the U.S. Government.
It is not conclusive and can be rebutted by evidence that the information was made public by Congress or
an Executive Branch agency and that the informtion may have been found in sources lawfully available
to the general public at the time of charged communication. However, evidence of general over-
classi?cation goes to whether information should be closely held by the United States, not whether it was
closely held at the time of the charged communication. Whether information should be closely held is a
proper determination for the Executive and Legislative branches and is not at issue before this Court.

3. PL 1 1 1-253 did not make any changes to the classi?cation criteria in E0 13,526. Facts at issue are
whether each OCA properly classi?ed the relevant information in accordance with (IAW) E0 13,526 and
whether any derivative classi?cations of that information were conducted E0 13,526 and the
relevant derivative classi?cation guides.

4. Whether evidence that PL 11 1-258 was enacted in response to Congressional concerns about over-
classi?cation and the substance of that law is relevant to bias of an OCA under MRE 608(c) is not ripe for
consideration. Similarly, whether Mr. Leona.rd?s statement and/or oral testimony given at the 2007 House
Committee on Homeland Security Hearings is relevant on the merits to cross-examine OCA witnesses is
not ripe for consideration. The Court defers ruling on these issues until such time as they are ripe. As set
forth below, Mr. Leonard?s statement and oral testimony, if relevant, are admissible under MRE 803(8) as
a hearsay exception.

0 0 34211

5. The testimony of Mr. Cassius Hall and Mr. Charles Ganiel, as proffered by the Defense, does not
address general over-classi?cation. The Court will make detenninations regarding the scope of Mr.
Galbraith?s testimony if and when he testi?es.

6. Evidence of general over-classi?cation bearing no particularized nexus to the classi?ed infonnation at
issue is not otherwise relevant as substantive evidence on the merits. Even if relevant, the probative value
of evidence of such general over-classi?cation is substantially outweighed by the danger of con?ising the
issues at trial MRE 403.

Conclusions of Law Evidence of Over-Classi?cation on Sentencing:

RCM lO0l(c)(l)(A) allows the Defense to present matters in extenuation serving to explain the
circumstances surrounding the commission of the offense, including those reasons for committing the
offense which do not constitute legal justi?cation or excuse. At this point, there is no evidence before the
Court that the accused was aware of any general over-classi?cation problem or that such awareness
in?uenced his intent or motive. The Court defers ruling until the matter is ripe for adjudication during
sentencing.

DEFENSE MOTION FOR JUDICIAL NOTICE OF H.R. 553 AND CONGRESSIONAL
HEARINGS DISCUSSING CLASSIFICATION:

1. On 16 November 2012, the Defense ?led a motion, pursuant to Military Rules of Evidence (MRE)
201, 201A, and 803(8) for the Court to take judicial notice of H.R. 55 3, the ?Reducing Over-
Classi?cation Act,? and transcripts of the House Committee meetings on the Espionage Act (16
December 2010) and Over?Classi?ca?tion (22 March, 26 April, and 26 June 2007). Defense argues this
information is relevant on the merits to rebut evidence that the accused knew or should have known that a
document could cause injury to the United States or bene?t a foreign nation based solely on the
document?s classi?cation. The Defense ?nrther posits that this information is relevant to sentencing in
that evidence that the classi?cation system was broken and its condition had negative consequences for
the nation would tend to shift some of the culpability from the accused to the system itself, thus tending to
lower his punishment.

2. On 30 November 2012, the Government ?led a response opposing the Defense motion. The
Government argues that the Defense motion should be denied because the law and the statements and
testimony in the Congressional record are irrelevant. The Government requests the Court to ?nd the
House Committee meeting testimony and statements to be inadmissible hearsay not qualifying for
admission pursuant to MRE 803(8). The Government further avers that, as a general proposition, it is
appropriate for a Court to take judicial notice of the law insofar as it exists, is relevant, and that a
Congressional record presents an accurate account of testimony. Finally, the Government avers that
judicial notice is not appropriate for the truth of the matter asserted.

3. After considering the ?lings and evidence presented by the parties and argument of counsel, and the
ruling of the Court with respect to the Government Motion to Preclude Over-Classi?cation, the Court
?nds and concludes as follows:

Findings of Fact:
PL 1 ll-258, the ?Reducing Over-Classi?cation Act?

1. On 7 October 2010, President Obama signed H.R. 553, the ?Reducing Over-Classi?cation Act? into
law. On that date, the Act became Public Law 1 1 1-25 8 (PL l-258).

5

0 0 34212

2. The ?Reducing Over-Classi?cation Act? requires the Secretary of Homeland Security to develop a
program to prevent the over-classi?cation of homeland security information. While the main thrust of the
legislation is directed at the Department of Homeland Security, the legislation also contains several other
provisions relating to ?accurate classification? of information that each ?Executive agency" that handles
classi?ed information is required to follow. See. P.L. 1 11-258, section 7 (?The head of each
Executive agency, in accordance with Executive Order 13526, shall require annual training for each
employee who has original classi?cation authority?)

3. Section 2 of P.L. ll 1-258 also contains several Congressional ?ndings. Among these ?ndings are:

The National Commission on Terrorist Attacks Upon the United States (commonly known as
the ?*9/11 Commission?) concluded that security requirements nurture over-classification and
excessive cornpartmentalization of infomiation among agencies-

(2) The 9/ [1 Commission and others have observed that the over-classification of information
interferes with accurate, actionable, and timely information sharing, increases the cost of
information security; and needlessly limits stakeholder and public access to information.

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

[6 December 2010 House Judiciary Committee Testimony of Mr. Thomas Blanton

I. On 16 December 2010, the US. House of Representatives Committee on the Judiciary held a hearing
entitled ?Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks.? The hearing
featured seven witnesses, one of whom was Mr. Thomas Blanton, Director, National Security Archive,
George Washington University.

2. In his testimony, Mr. Blanton stated, among other things, that the ?government always overacts to
leaks,? that the ?govemmenfs national security classi?cation system is broken,? and ?we are well into a
that one senior government official called ?Wikimania? where are common and
there is far more heat than light heat that will eventually produce more leaks, more crackdowns, less
accountable government, and diminished security.? Mr. Blanton?s testimony and his statement repeat
statements made by Governor Thomas Kean, Secretary of Defense Robert Gates, the editors of Le Monde
and The Guardian. Secretary of Defense Donald Rumsfeld?s deputy for counterintelligence and security,
and Harvard Law Professor Jack Goldsmith.

3. Mr. Blanton?s oral and written testimony was published in the hearing transcript verbatim, without
modi?cation by the Chairman of the committee.

House Homeland Security Subcommittee Hearings on Over-Classification

1. On 22 March, 26 April, and 28 June, 2007, the U.S. House of Representatives Homeland Security
Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment held a three-part
hearing on ?Over-Classi?cation and

2. The Hearing included statements from the following subcommittee members: The Honorable Jane
Harman, The Honorable David G. Reichert, The Honorable Bennie G. Thompson, The Honorable Charles
W. Dent, The Honorable Christopher P. Carney, and the Honorable James R. Langevin.

0 0 34213

3. As part of these hearings, a number of agency and private witnesses with knowledge of classi?cation
activities were invited to provide oral and written testimony. Speci?cally, the hearings featured testimony
from:

a. Mr. Scott Founder, Information Trust (22 March 2007)

b. Ms- Meredith Fuchs, General Counsel, The National Security Archive, George Washington
University (22 March 2007)

c. Mr. J. William Leonard, Director information Security Oversight Office, National Archives and
Record Administration (NARA) (22 March 2007)

d. Mr. Michael P. Downing, Assistant Commanding Officer, Counter-Terrorism/Criminal Intelligence
Bureau, Los Angeles Police Department (22 March 2007)

e. Chief Cathy Lanier, Metropolitan Police Department, Washington, DC (22 March 2007)

f. Ambassador Thomas E. McNamara, Program Manager, Information Sharing Environment, Office of
the Director of National Intelligence (26 April 2007)

g. Dr. Carter Morris, Director, Information Sharing and Knowledge Management, Office of
Intelligence and Analysis, US. Department of Homeland Security (26 April 2007)

h. Mr. Wayne M. Murphy, Assistant Director, Directorate of Intelligence, Federal Bureau of
Investigation (26 April 2007)

i- Mr. Mark Zadra, Assistant Commissioner, Florida Department of Law Enforcement (26 April 2007)
j. Mr. Mark Agrast, Senior Fellow, Center for American Progress (28 June 2007)
it. Mr. Scott Founder, Information Trust (28 June 2007)

I. Mr. J. William Leonard Director [nforrnation Security Oversight Of?ce, National Archives and
Records Administration (28 June 2007)

m. Ms. Suzanne E. Spaulding, Principal, Bingham Consulting Group, LLC (28 June 2007)

4.. The consolidated hearing record from all three dates contains the verbatim oral and written testimony
of all subcommittee members and witnesses, without modi?cation by the Chairman of the committee.

The Law: The Court incorporates the law as stated earlier in the Government Motion to Preclude
Evidence of 0ver?Classi?cation and adds the following:

Judicial Notice: Adjudicatorv Facts

I. MRE 201 govemsjudicial notice of adjudicative facts. Thejudicially noticed fact must be one not
subject to reasonable dispute in that it is either (I) generally known universally, locally, or in the area
pertinent to the event or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot be reasonably questioned. US. v. Needham, 23 M.J. 383 (C.M.A. US. v. Brown,
33 706 (A.C.M.R. I991).

2. MRE 20l(c) requires the militaryjudge to takejudicial notice of adjudicative facts if requested by a
party and supplied with the necessary information.

0 0 34214

3. When a military judge takes judicial notice of adjudicative facts, the fact ?nder is instructed that they
may, but are not required to, accept as conclusive any matter judicially noticed.

4. Judicial notice of adj udicative facts puts ?a stamp of udicial authority? on the evidence and effectively
destroys the other party's right to reasonably dispute the evidence. US. v. Richardson, 33 MJ. 127
(C.M.A. 1991). As such, judicial notice is not appropriate for inferences a party hopes the fact finder will
draw from the fact(s) judicially noticed. Legal arguments and conclusions are not adjudicative facts
subject tojudicial notice. US. 12. Anderson, 22 MJ. 885 (A.F.C.M.R. 1985) (appropriate to takejudicial
notice of the existence of a treatment program at a con?nement facility but not appropriate to take judicial
notice of the quality of the program).

5. MRE 20l governs judicial notice of adjudicative facts, not legislative facts. An adjudicative fact is a
fact that normally goes to ajury in ajury case and relates to the parties, their activities, and their
businesses. Legislative facts do not concern the immediate parties and are relied upon by courts when
they develop a particular law or policy. US. v. Gould, 536 F.2d 2 6 (8th Cir. l976).

Judicial Notice: Domestic Law

MRE 20lA(a) provides that a ?military judge may takejudicial notice of domestic law.? This provision
further provides, however, that ?[i]nsofar as a domestic law is a fact that is of consequence to the
determination of the action,? then the procedural requirements of MRE 201 (except for section 20

apply.

Hearsay: Public Records and Reports

MRE 803(8) provides that ?records, reports, statements, or data compilations, in any form, of public
office or agencies? are not excluded under the hearsay rule if the records or reports set forth:

(A) the activities of the office or the agency, or (B) matters observed pursuant to duty imposed by
law as to which there was a duty to report, excluding, however, matters observed by police
officers and other personnel working in a law enforcement capacity, or (C) against the
government, factual ?ndings resulting ?om an investigation made pursuant to authority granted
by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Conclusions of Law Admissibility/Relevance:
PL 1 1 1-258

1. Admissibility: PL 1 1 1-258 is a domestic law that the Court may takejudicial notice of IAW MRE
201 A. The Government posits that the ??ndings? (Section 2) in this law are ?legislative facts? ra?ier
than ?adjudicatory facts" and, therefore, are not appropriate for judicial notice. This is certainly the case
with certain legislative materials that express merely personal opinions or legal theories. In this case,
however, the fmdings in the law are taken from conclusions in the 9/ Commission report, rather than
mere expressions of Congressional opinion. Furthermore, the ?ndings also stand independently for the
fact that Congress believed over-classi?cation was a potential issue and passed this legislation which
contains notjust ?ndings but speci?c statutory initiatives to address that issue. See, ity of
Charleston v. A Fisherman '5 Best Inc, 310 F.3d 155, 172 Cir. 2002) (takingjudicial notice of a
National Marine and Fisheries Service ?nal rule that summarized Congressional intent for the 1996
reauthorization of the Magnuson-Sevens Act). Accordingly, the Court is within its discretion to take
judicial notice of the ?ndings in Section 2 of PL 1 1-258 to the degree they are relevant. Such judicial
notice would be the adjudicative fact that Congress made the ?ndings, not that the ?ndings are
adjudicative fact. .

8



2. Relevance: PL ll 1-258 was signed into law on 7 October 2010, after the dates of the charged offenses
but prior to the dates of the original classi?cation reviews of the information charged by the OCAS. In its
ruling regarding the Government Motion to Preclude Over-Classi?cation, the Court deferred ruling on
whether evidence of general over-classi?cation in PL ll l-258 is relevant to impeach OCA witnesses
MRE 608(c) and whether evidence of general over-classi?cation is relevant during sentencing.
Thus, subject to a demonstration of relevance, the Court will take judicial notice of the existence of PL

1 1 1-25 8, to include the Congressional findings in Section 2, the date of introduction of HR. 255 and the
date the law was enacted. The Court will not takejudicial notice of the truth of the matter asserted in PL
11 1-258 adjudicative facts.

Testimony of Mr. Thomas Blanton

1. Admissibiliy: The testimony of Mr. Thomas Blanton is not admissible under MRE While
Mr. Blanton?s testimony is part of an official report in this case a Congressional hearing record it does
not meet the other criteria of MRE Speci?cally, his testimony is not: (1) a report of the
activities of the office or agency Congress); (2) a matter observed by duty of law where there was a
duty to report; or (3) factual ?nding against the government made pursuant to an investigation pursuant to
authority under the law. Rather, Mr. Blanton?s statement contains his personal opinions reprinted
verbatim in a hearing record. It is hearsay within hearsay. To the extent Mr. Blanton repeats statements
made by Governor Thomas Kean, Secretary of Defense Robert Gates, the editors of Le Manda and The
Guardian, Secretary of Defense Donald Rumsfeld?s deputy for counterintelligence and security, and
Harvard Law Professor Jack Goldsmith, such statements are triple hearsay.

2. Relevance: Even if admissible, Mr. Blanton?s prepared statement and oral testimony occurred a?er
the dates of the communications alleged in the charged offenses. Mr. Blanton?s statement and oral
testimony are not relevant on the merits or during sentencing.

Admissibilitv 2007 House Committee on Homeland Security Hearing Tr_a_r1?cripts

1. Statements by Subcommittee Members The statements by subcommittee members are not
admissible under MRE 803(8). They do not document the activities of Congress. They do not set forth
matters observed pursuant to duty imposed by law as to which matters there was a duty to report, nor do
they represent factual findings resulting from investigation under authority granted by law. These
statements represent the personal opinions of individual subcommittee members.

2. Tggimony of Mr. Ms. Fuchs. Mr. Agrast. and Ms. Spaulding. The oral statements and
prepared testimony of Mr. (22 March and 28 June 2007), Ms. Fuchs, Mr. Agrast, and Ms.
Spaulding are not admissible under MRE The Defense states that the transcripts ?document
the activities of Congress? and therefore fall under MRE The Congressional record of
testimony by these witnesses, however, does not document ?activities? of Congress. Rather, it merely
reprints verbatim their personal beliefs and opinions.

3. Testimony of Mr. DowILin.g. The oral testimony and prepared statement of Mr. Downing is not
admissible under MRE While it has been reprinted in an of?cial Congressional transcript, this
does not cure the fact that the testimony itself is not a record or report of the activities conducted by the
Los Angeles Police Department (LAPD). Instead, it is a testimonial statement that details the general
counter-intelligence activities of the LAPD and makes certain recommendations regarding
declassi?cation of infomtation and further dissemination of those documents to state and local law
enforcement authorities.

0 0 34216

4. Testimon of Chief Lanier. The testimony of Chief Lanier is not admissible under MRE
Like the testimony of Mr. Downing, it is not a record or report of the activities conducted by the
Washington, D.C., Metropolitan Police Department (MPD). Instead, it is a testimonial statement that
details the counter-intelligence operations, and calls for speci?c changes to allow further
dissemination of classi?ed documents to local law enforcement agencies.



5. Testir_nonv of Mr. Zadra. The testimony of Mr. Zadra is not admissible under MRE lt is
not an official record or compilation of activities of the Florida Department of Law Enforcement. I
Rather, it largely rc?ects Mr. Zadra?s personal opinion regarding the Controlled Unclassi?ed Information
(CUI) framework used by federal agencies.

6. Testimony of Arr_1b_assador McNamara. Dr. Morris, and Mr. Murnhv. The testimony of Ambassador
McNamara, Dr. Morris, and Mr. Murphy is not admissible under MRE The testimony is not a
compilation of the records or activities of the agencies that the witnesses represent. Rather, each set of
testimony consists mainly of a summary of completed agency action to deal with problems involving
CUI. The testimony is also irrelevant. The speci?cations against the accused concern classi?ed
infonnation, not CUI. Accordingly, the argument in the testimony that CUI is sometimes mismarketl
does not help disprove any element of the speci?cations charged.

7. Testimonv of Mr. Leonard (22 March 2007). The 22 March 2007 testimony of Mr. Leonard is
admissible under MRE if relevant. It can be distinguished from the other testimony by two key
attributes.

a. irst, unlike other witnesses, Mr. Leonard serves as Director of the Information Security
Oversight Office (ISOO) within NARA that was established by Executive Order to provide policy
oversight to the entire national classi?cation system.? Pursuant to this authority, ISOO engages in
outreach and information collection activities from agencies within the Executive Branch that classify
information. Some of the information is also used to conducts audits and, in turn, suggest follow?up
recommendations for agency classi?cation systems.

b. Second, Mr. Leonard?s testimony provides a formal recounting of the official activities of his
office, as opposed to personal statements or beliefs. For example, the key assertion cited by the Defense,
that trained government classi?ers only made ?clearly? correct classi?cation decisions 64 percent of the
time was based on an official audit. (?in an audit of agency classi?cation activity conducted by my office
approximately one year ago, we discovered that even trained classi?ers, with ready access to the latest
access to the latest classi?cation and declassi?cation guides, and trained in their use, got it right only 64
percent of the time in making determinations as to the appropriateness of classi?cation?) The fact that
the testimony is published as an official Congressional hearing record is immaterial, as it would be
independently admissible as an ISOO report or record under MRE or (C).

8. All of the statements of subcommittee members and the prepared statements and oral testimony of the
testifying witnesses except those of Mr- Leonard are hearsay and not admissible under MRE 803(8). See
Pearce v. The E.F. Hutton Group, Inc. at al. 653 F. Supp. 810 812-815 (D.D.C. 1987). The Court
declines to take judicial notice of the statements and testimony. Upon a showing of relevance, the Court
will takejudicial notice of the existence of Mr. Leonard?s testimony in the Congressional record- The
Court will not takejudicial notice of the substance of Mr. Leonard?s testimony as adj udicative facts.

Relevance 2007 House Committee on Homeland Securig Hearing Transcripts

1 See Executive Order 12953, ?Classi?ed National Security Information,? 5.2.
10

. 34217

1. The 2007 House Committee on Homeland Security Hearings testimony was delivered and published in
a Congressional record prior to the date of communications in the speci?cations charging violations of [8
U.S.C. 793(e) and l030(a)(l).

2. With the exception of Mr. Le-onard?s 22 March 2007 statement and testimony noted below, the 2007
House Committee on Homeland Security Hearings are not relevant as substantive evidence of general
over-classification on the merits or for sentencing. The Hearing is entitled ?The Over-Classification and
Pseudo-Classi?cation Part I, II, and Almost all of the statements and oral testimony primarily
address challenges in communications involving classi?ed or pseudo-classi?ed information among
federal agencies and state and local law enforcement agencies. Pseudo-classification is not relevant to the
charges at issue in this case, neither is communication involving classified and pseudo-classi?ed
information among federal, state, and local intelligence agencies. In addition, the hearings took place
from March June 2007, almost three years prior to the charged communications at issue in this case.
Even if admissible on the merits or in sentencing as substantive evidence of general over?c|assi?cation,
the probative value of the 2007 House Committee on Homeland Security Hearings, with the exception of
Mr. Leonard?s statement and testimony, is substantially outweighed by the danger of confusion of the
issues under MRE 403.

3. Mr. Leonarcl?s 22 March 2007 statement and testimony is admissible under MRE 803(8) as a hearsay
exception. Whether it is relevant on the merits to cross-examine the OCA witnesses is not ripe for
consideration. The Court defers ruling on this issue and relevance for sentencing until the issues are ripe
at trial.

RULING:

Over-classi?cation Evidence: The Government Motion to Exclude Over-Classi?cation Evidence on the
Merits and Sentencing is GRANTED IN PART as set forth above.

I. Evidence of general over?classifieation is not relevant as substantive evidence on the merits portion of
the trial. Even if relevant, the probative value of evidence of general over-classi?cation is substantially
outweighed by the prejudice of confusing the issues under MRE 403.

2. The Court defers ruling on whether PL l-258 ?Reducing Over-Classi?cation Act? and the oral
testimony and statement by Mr. Leonard is relevant for the limited purpose of cross?examining the 0CAs
under MRE 608(c) and for sentencing until such time as the issues are ripe.

Judicial Notice: The Defense motion to take judicial notice of PL I I-258, ?the Reducing Over-
Classi?cation Act? and Congressional Hearings Discussing Classi?cation is GRANTED IN PART.

I. The Court will take judicial notice of the existence of PL 1 1 1-258, and the existence of the 22 March
2007 testimony of Mr. William Leonard upon a showing of relevance as set forth above. The Court will
not take judicial notice of the truth of the matter asserted as adjudicative facts.

2. The Court will not take judicial notice of the 16 December 2010 testimony of Mr. Thomas Blanton
before the House Judiciary Committee or the statements by subcommittee members and the prepared
statements and oral testimony of witnesses who testi?ed before the 2007 House Committee on Homeland
Security Hearings on Over-Classi?cation and Pseudo-Classi?cation other than Mr. Leonard?s 22 March
2007 statement and testimony.

11

So ORDERED this 3 1st day oflanuary 2013.

12

34218



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

34219

UNITED STATESOF AMERICA

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

Government Request
for Leave until 14February 2013
to Submit its Proposed
Providence Inquiry
questions
5February2013

The United States respectfully requests leave ofthe Court until 14Febmary 2013 to submit
its proposed providence inquiry questions. Afterthe updated court calendar dated9January 2013,
Appellate Exhibit 466. Together their
the defense had three weeks to prepare plea documents.
filings totaled eighty pages in need of review includingathirtyfive page proposed providence
inquiry andathirtyfburpagefactintensive providence statement by the accused.
Defense
Notice ofPlea and Fomm, Guilty Plea 1nquiry,Proyidence StatemenL and Attachment to PFC
Manning'sProvidence Statement submitted to the Court via electronic mail by Mr. David Coombs
on 30 January 2013.
The United States requests additional time to process and respond to this infbrmation
especially considering there appears to be legal issues involved with the defense'sproposaL This
request will not necessitateadelay in the proceedings. A14Febmary suspense date will still permit
the Court eleven days to review the parties'submitted material in advance of the 39(a) session
scheduled to begin 26 Febmary 2013. There will be no prejudice to the defense.

ASHDENFEIN
MAJ,JA
TrialCounsd
Icertify tbatlserved or caused to be servedatme copy ofthe above on Mr. David Coombs, Civilian
Defense Counsd,yia electronic mail on5Ecbmary 2013.

ASHDEN FEIN
MAJ, JA
Trial Counsel

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.

Fein, Ashden MAJ USARMY MDW (US)

From: David Coombs

Sent: Tuesday, February 05, 2013 4:16 PM

To: Lind, Denise COL USARMY (US)

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

JoDean (Joe) Ill CPT USARMY USAMDW Overgaard, Angel CPT USARMY
Whyte, Hunter CPT USARMY von Elten, Alexander (Alec) CPT USARMY
Ford, Arthur Jr CW2 USARMY 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
(US)
Subject: RE: Government Filing (UNCLASSIFIED)

Ma'am,

The Defense objects to an extension of time for the Government to prepare its filing.
Originally, the Court wanted both parties to submit their questions by 31 January 2613. The
Government did not object to this request by the Court. At that time, the Defense proposed
that it take the lead on drafting the providence inquiry questions and give the Government an
additional week to submit its proposed inquiry based upon its own effort and that of the
Defense. The Government supported the Defense's proposal and the Court approved of this
proposal.

The Government has failed to justify any need for additional time. The length of the
materials submitted by the Defense is 1) entirely appropriate and 2) something that the
Government should have anticipated given the number of specifications being pled to by PFC
Manning.

I have already made flight and hotel arrangements to travel to Fort Leavenworth to prepare
the providence inquiry with PFC Manning on 7 and 8 February. I have also had to coordinate
with the JRCF to accommodate a two-day visit. My plan was to cover the questions that I
proposed on 7 February and the questions the Government proposed on 8 February. It would be
difficult to reschedule this trip at this late date due to other commitments.

The Government has another two duty days to complete its filing. The Defense requests that
the Court hold the Government to the agreed upon deadline.

v/r
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 62996

Toll Free: 1-800-588-4156

Local: (568) 689-4616

Fax: (568) 689-9282



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

APPELLATE EXHIBIT 8 3'
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. 0 34221



From: Lind, Denise COL USARMY (US)

Sent: Tuesday, February 65, 2013 3:56 PM

To: Fein, Ashden MAJ USARMY MDN (US)

Cc: Hurley, Thomas MAJ USARMY David Coombs; Tooman, Joshua CPT USARMY Morrow,
JoDean (Joe) CPT USARMY USAMDN Overgaard, Angel CPT USARMY whyte, Hunter
CPT USARMY von Elten, Alexander (Alec) CPT USARMY Ford, Arthur Jr CN2 USARMY
Williams, Patricia Ann (Trisha Williams-Butler) CIV USARMY USAMDW Jefferson,
Dashawn MSG USARMY Moore, Katrina MSG USARMY Raffel, Michael SFC USARMY (US)
Subject: RE: Government Filing (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

Defense,
Any objection?


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



From: Fein, Ashden MAJ USARMY MDN (US)

Sent: Tuesday, February 65, 2013 3:53 PM

To: Lind, Denise COL USARMY (us)

Cc: Hurley, Thomas MAJ USARMY David Coombs; Tooman, Joshua CPT USARMY Morrow,
JoDean (Joe) CPT USARMY USAMDN Overgaard, Angel CPT USARMY Nhyte, Hunter
CPT USARMY von Elten, Alexander (Alec) CPT USARMY Ford, Arthur Jr CN2 USARMY
Williams, Patricia Ann (Trisha Williams-Butler) CIV USARMY USAMDN Jefferson,
Dashawn MSG USARMY Moore, Katrina MSG USARMY Raffel, Michael SFC USARMY (US)
Subject: Government Filing

Ma'am,

Attached is a government motion for leave to file the government's proposed providence
inquiry questions and any other objections based on legal issues by 14 February 2613.

v/r
MAJ Fein

Classification: UNCLASSIFIED
Caveats: NONE

34222

UNITEDSTATESOF AMERICA

Manning, BradleyE.
PFCU.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer,Vi^inia 22211

RULING: Government Motion fbr
for Leave nntil14February 2013
to Submit its Proposed Providence
Inquiry t^uestions

^February 2013

The Court hasconsideredtheGovemment's5February2013motion fbr leaveofthe Court
until 14Februaty20l3to submit its proposed providence inquiry questions and theDefense
objections submitted to the Court via email on5February 2013. Although not in the title ofthe
motion, the Govemment avers that there are legal issues involved with the Defense proposals.
RULING:TheGovcmmcntmotion fbr leave until 14 Fehruary20l3is GRANTED INPART as
set fbrth bdow.
1 The Governmentwill submit proposed providence inquiry questions NLT7February 2013.
2. Any Government filing addressing legal issues raised by the accused'sproposed providence
inquiry and plea will be submitted NLT14 Febmary 2013.
3. Any Defense response to legal issues raised by the Govemment will be submitted NLT21
February 2013.

^

DENISERLIND
COL,JA
ChiefJudge, Injudicial Circuit

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0 0 34223

IN THE UNITED STATES ARMY

RECEIPT BY ENEMY DURING
MERITS

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

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE RESPONSE TO
v. GOVERNMENT MOTION FOR

IN CAMERA PROCEEDING

UNDER MRE 505(i)(2) AND

DEFENSE MOTION FOR
MANNING, Bradley E., PFC APPROPRIATE RELIEF TO
U.S. Army, PRECLUDE EVIDENCE OF









DATED: 8 February 2013

RELIEF SOUGHT

1. The Defense respectfully requests that this Court preclude the Government from raising or
eliciting any discussion, reference, or argument, to include the introduction of any documentary
or testimonial evidence, relating to receipt of any of the charged information by al Qaeda, al
Qaeda in the Arabian Peninsula, the enemy listed in Bates Number 00410660 through 00410664,
or any other enemy from the merits portion of the trial. The Defense does not dispute whether
receipt by al Qaeda, al Qaeda in the Arabian Peninsula, the enemy listed in Bates Number
00410660 through 00410664, or any other enemy is relevant on sentencing. In the alternative,
should the Court determine receipt by the enemy is relevant during the merits portion of the trial,
the Defense requests the opportunity to interview Mr. John Doe in order to adequately respond to
the Governrnent?s requested relief in its motion. The Defense requests oral argument.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. The burden of proof on any factual issue the resolution of which is necessary to decide a
motion shall be by preponderance of the evidence. See Manual for Courts-Martial, United
States, Rule for Courts-Martial (RCM) 905(c)(1) (2012). The burden of persuasion on any
factual issue the resolution of which is necessary to decide a motion shall be on the Defense as
the moving party. See RCM 905(c)(2). Whether the Court rules on the admissibility of evidence
before it arises at trial is a decision in the discretion of the military judge. See RCM 906(b)(13).

FACTS

3. PFC Marming is charged with one speci?cation of aiding the enemy, one speci?cation of
disorders and neglects to the prejudice of good order and discipline and service discrediting,

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0 0 34224

eight speci?cations of violations of 18 U.S.C. 793(e), ?ve speci?cations of violations of 18
U.S.C. 641, two speci?cations of violations of 18 U.S.C. 1030, and ?ve speci?cations of
violating a lawful general regulation, in violation of Article 104, 134, and 92, Uniform Code of
Milita1y Justice (UCMJ). See Enclosure 1.

WITNESSESI EVIDEN CE

4. The Defense does not intend to produce any witnesses for this motion. The Defense requests
that the Court consider the following enclosures to this Motion in making its ruling.

1. Charge Sheet (enclosed in record)

2. Draft Instructions, 26 November 2012 (Appellate Exhibit 410)

3. Ruling: Defense Motion to Dismiss Speci?cation 1 of Charge II for Failure to State an
Offense, 25 April 2012 (Appellate Exhibit 80)

4. Ruling: Defense Motion to Dismiss for Failure to State an Offense, 26 April 2012
(Appellate Exhibit 81)

5. Ruling: Government Motion to Preclude Reference to Actual Harm or Damage on
Merits, 19 July 2012 (Appellate Exhibit 221)

6. Ruling: Government Motion to Preclude Motive Evidence on Merits, 16 January 2013
(Appellate Exhibit 470)

7. Ruling: Government Motion to Preclude Over-Classi?cation Evidence on Merits and
Sentencing and Defense Motion for Judicial Notice of H.R. 553 and Congressional
Hearings Discussing Classi?cation, 31 January 2013

8. Manual for Courts-Martial, United States, Article 104, UCMJ, and (2012)

LEGAL AUTHORITY AND ARGUMENT

5. The Court should preclude the Government from raising or eliciting any discussion,
reference, or argument, to include the introduction of any documentary or testimonial evidence,
relating to receipt by al Qaeda, al Qaeda in the Arabian Peninsula, the enemy listed in Bates
Number 00410660 through 00410664, or any other enemy during the merits portion of the trial.
Actual receipt by al Qaeda, al Qaeda in the Arabian Peninsula, the enemy listed in Bates Number
00410660 through 00410664, or any other enemy is not relevant to any of the charged offenses.
Even if remotely relevant, the probative value of receipt by the enemy is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
members, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence. See MRE 403.

I. ACTUAL RECIEPT BY THE ENEMY IS NOT RELEVANT TO A MATTER AT ISSUE

6. MRE 401 provides that evidence is relevant if it has ?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.? See also MRE 401, analysis (?relevant evidence must



0 0 34225

involve a fact ?which is of consequence to the determination of the action??). The military judge
has the initial responsibility to determine whether evidence is relevant under MRE 401. US. v.
White, 69 M.J. 236 (C.A.A.F. 2010).

7. MRE 402 provides that ?all relevant evidence is admissible, except as otherwise provided by
the Constitution of the United States as applied to members of the armed forces, the code, these
rules, this Manual, or any Act of Congress applicable to members of the armed forces. Evidence
which is not relevant is not admissible.?

8. Relevant evidence is necessary when it is not cumulative and when it would contribute to a
party?s presentation of the case in some positive way in a matter at issue.

9. MRE 403 provides that relevant evidence ?may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, of the issues, or misleading
the members, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.?

10. The Speci?cation of Charge I requires the Government to prove that the accused knowingly
gave intelligence information to al Qaeda, al Qaeda in the Arabian Peninsula and an entity
speci?ed in Bates Number 00410660 through 00410664 through the indirect means of

- WikiLeaks, that al Qaeda, al Qaeda in the Arabian Peninsula, and the entity speci?ed in Bates

Number 00410660 through 00410664 was an enemy and that this intelligence information was
true, at least in part.

11. Speci?cation 1 of Charge II requires the Government to prove the accused wrongfully and
wantonly caused to be published on the intemet intelligence belonging to the United States
government, having knowledge that intelligence published on the intemet is accessible to the
enemy.

12. Actual receipt by al Qaeda, al Qaeda in the Arabian Peninsula, or the entity listed in Bates
Number 00410660 through 00410664 is not an element of any of the charged offenses, nor is it
probative of whether the accused had actual knowledge that he was giving intelligence to an
enemy when he provided the charged information to WikiLeaks. Furthermore, it is not probative
of the accused?s state of mind at the time of the commission of the alleged offenses.

13. With respect to Speci?cation 1 of Charge 2, this offense punishes the wrongful and ?wanton
publication of intelligence on the intemet not giving intelligence to the enemy.? See AE 80 at 4.
Actual receipt by the enemy of intelligence belonging to the United States does not have a
tendency to prove that the accused wrong?illy and wantonly published information on the
intemet with knowledge that the information is accessible to the enemy. As the Government has
repeatedly argued in the past, ?After-the-fact" evidence is irrelevant to prior events. After-
the-fact evidence is irrelevant to a person?s intent and state of mind at an earlier time. [A]n
after-the-fact assessment is irrelevant because the facts are examined as they appeared to the
accused at the time of the charged criminal act.? See Appellate Exhibit 158 at 2-7. The relevant
inquiry, then, is whether PFC Manning knew at the time of the alleged act that the information
that he allegedly caused to be published on the intemet was accessible to the enemy. The fact



0 0 34226

that the information was, or was not, actually accessed by the enemy has no bearing on the
charged offense. PFC Manning could be found guilty of Speci?cation 1 of Charge 2 with
absolutely no evidence that an enemy actually ever saw the information in question.

14. Similar logic applies to the Speci?cation of Charge 1, the Article 104 offense. In the
speci?cation of Charge I, PFC Manning is charged with Giving Intelligence to the Enemy in
violation of Article 104(2). The Speci?cation alleges that between on or about 1 November
2009 and on or about 27 May 2010, PFC Manning, without proper authority, knowingly gave
intelligence to the enemy through indirect means.

15. Article 104(2) makes it a crime for ?any person who, without proper authority, knowingly
harbors or protects or gives intelligence to or communicates or corresponds with or holds any
intercourse with the enemy, either directly or indirectly.? Article 104b(4) provides the following
elements for the offense of Giving Intelligence to the Enemy:

that the accused, without proper authority, knowingly gave intelligence information
to the enemy, and;

that the intelligence information was true or implied the truth, at least in part.?

16. ?Giving intelligence to the enemy? is a subset of ?communicating? or ?corresponding? with
the enemy under Article 104(2):

?Giving intelligence to the enemy is a particular case of corresponding with
the enemy made more serious by the fact the communication contains
intelligence that may be useful to the enemy for any of the many reasons that
make information valuable to belligerents. This intelligence may be
conveyed by direct or indirect means.? See Article 104,

The explanation to Article 104 expressly states that ?no response or receipt by the enemy is
required. The offense is complete the moment the communication, correspondence, or
intercourse issues from the accused.? See Article 104, (emphasis added).

17. A previous version of the Manual for Courts Martial contained different verbiage,
but the same underlying message: that the offense of communicating with the enemy (of which
giving intelligence to the enemy is a subset) is complete regardless of whether the enemy
actually receives the communication. In US. v. Olson 20 C.M.R. 461 (U.S. Army Bd. of
Review 195 5)the court cited this previous version of the Manual:

Correspondence does not necessarily import a mutual exchange of
communication. The law requires absolute nonintercourse, and any
unauthorized communication, no matter what may be its tenor or intent, is
here denounced. The prohibition lies against any method of communication
whatsoever, and the o?ense is complete the moment the communication
issues ?om the accused, whether it reaches its destination or not. The words
?directly or indirectly? apply to this offense. It is essential to prove that the

0 0 34227

offense was knowingly committed.? (emphasis added) (citations omitted).

Id. at 467-468. Thus, whether or not an enemy of the United States or al Qaeda, al Qaeda in the
Arabian Peninsula, or the entity listed in Bates Number 00410660 through 00410664 actually
received the charged information is not relevant to any element of Article 104. Actual receipt by
the enemy of the intelligence is not required to establish that the accused knowingly gave
intelligence to the enemy. The offense is complete once the accused dispatched the information
to a third party or intermediary or in some other indirect way, with actual knowledge that by so
he was actually giving intelligence to the enemy through this indirect means.

18. Further, receipt of the intelligence by the enemy is not relevant to the accused?s knowledge
at the time he disclosed the information to WikiLeaks. As the Government has argued in the
past, and as the Court has accepted, the focus is on PFC Manning?s state of mind at the time he is
alleged to have given intelligence to the enemy. That the enemy may have received such
intelligence information has no bearing on PFC Manning?s state of mind at the time of the
alleged offense. In other words, even if an enemy of the United States actually received the
charged information, actual receipt by the enemy does not focus on the key moment of time for
the charged offenses: the actual knowledge of the accused when he provided the charged
information to WikiLeaks. -

19. A secondary basis for excluding evidence of actual receipt by the enemy is MRE 403. By
allowing evidence of actual receipt by the enemy when the relevant inquiry is whether the
accused had actual knowledge that by giving intelligence to WikiLeaks, he was actually giving
intelligence to the enemy through indirect means, the court?martial will be sidetracked and
unnecessarily delayed by the focus of the trial shifting to whether or not the enemy actually
received the charged information and how the Government may be or may not be able to prove
actual receipt by the enemy.

20. In its effort to prove actual receipt by the enemy, the Government intends to call at least the
following six witnesses: Mr. Michael Longwell, SSA Alexander Otte, Mr. Kim Rosecrans, Ms.
Kimberly Shupp, Mr. Jeffery Szczepanski, and Mr. John Doe. The Government requests that for
at least one of the six witnesses, Mr. Doe, that the Court permit him to testify in a closed session
at a secure off-site location in the Military District of Washington, rather than the Fort Meade
courthouse. Mr. Doe?s and the other ?ve witnesses? testimony would cause undue delay,
necessitating off-site travel for dozens of trial participants (including the accused), and multiple
closed sessions to establish something that is not an element of the charged offenses. Moreover,
references to receipt of the information by the enemy serves only to prejudice the fact-finder into
making a determination on an improper basis. As such, the Court should preclude the
Government ?'om raising or eliciting any discussion, reference, or argument, to include the
introduction of any documentary or testimonial evidence, relating to receipt by al Qaeda, al
Qaeda in the Arabian Peninsula, the enemy listed in Bates Number 00410660 through 00410664,
or any other enemy from the merits portion of the trial.

II. THE DEFENSE SHOULD BE ENTITLED TO INTERVIEW MR. JOHN DOE PRIOR TO
RESPONDING TO THE MOTION



0 0 34228

21. If the Court determines that Mr. John Doe and the other ?ve witnesses are relevant on the
merits, the Defense requests that the Court require the Government to provide access to Mr. Doe
in order for the Defense to adequately respond to the Govemment?s motion.

22. The Government did not indicate in its motion when it first determined that it would call Mr.

Doe as a witness. However, it is clear that the Government was planning on calling him at least
as of 21 November 2012 when it declassi?ed information related to Usama bin Laden. See
Government Motion for in? camera Proceeding Under MRE 505(i)(2) [hereinafter Government

Motion], dated 31 January 2013 at 2. In spite of this fact, the Government chose to wait to notify

the Court and Defense until 31 January 2013 of the addition of Mr. Doe.

23. Although the Government can certainly amend its witness list when necessary, the failure to

provide timely notice of Mr. Doe is problematic. The Government?s delay in providing notice of
Mr. Doe raises a new issue for litigation that was not considered when the Court and parties were

discussing the court calendar the relevance of actual receipt by the enemy of the charged

information and the need for Mr. Doe to testify in disguise and at an off-site location. During the

discussion of the calendar at our last session, the Court repeatedly asked if either party had any

other issues that needed to be considered. The failure of the Government to raise the issue of Mr.

Doe is yet another example of a lack of due diligence on the Govemment?s part.

24. Due to the Govemment?s lack of diligence, the parties are now forced to deal with an issue
that could impact the Defense?s ability to comply fully with its 505(h) notice requirements. If
provided with the ability to interview Mr. Doe in a secure setting, the defense will be able
determine if there is any information from Mr. Doe that is ?relevant and necessary to an element
of the offense or a legally cognizable defense and is otherwise admissible in evidence.? See
MRE

25. The Government has not given the Defense any contact information for Mr. Doe. Instead,
the Government seems to believe that due to the claim of privilege by the Secretary of Defense
and the Acting Director for the Central Intelligence Agency that the Defense is not entitled to
conduct an interview of Mr. Doe prior to his testimony. None of the cases cited by the
Government support such a proposition. Prior to this Court determining if it should restrict
discovery and cross-examination of Mr. Doe, the Court should provide the Defense with its
Article 46, UCMJ right to interview Mr. Doe. See United States v. Irwin, 30 M.J. 87, 94
(C.M.A. 1990)(holding that United States had no authority to deny pretrial interview of a
witness, even in a situation where the United States determined the questions were irrelevant,
harassing, or amount to a ??shing expedition?).

26. The Court?s existing Protective Order would prohibit the Defense from revealing any of the
information that Government seeks to protect without proper authorization. Without having the
opportunity to interview Mr. Doe, the Defense will not be able to adequately respond to the
proposed alternatives by the Government. It may very well be that the rank, branch of service,
service, unit speci?c training, actual years of service, actual years of active duty status during
service, specialized quali?cations, other background information, or other details about the Bin



Laden raid would be relevant and necessary under MRE However, prior to being
able to articulate that relevance, the Defense needs access to Mr. Doe.

27. The requirement for the Defense to interview Mr. Doe may result in this motion not being
litigated at the next hearing and may also result in a subsequent MRE 505(h) ?ling. However,
any needed delay will not impact the trial date of 3 June 2013. Additionally, by speaking with
Mr. Doe, the Defense can determine whether a stipulation of expected testimony or a stipulation
of fact would be appropriate. A matter is not at issue when it is stipulated as fact (discussion to
RCM

CONCLUSION

28. The Defense respectfully requests that this Court preclude the Government from raising or
eliciting any discussion, reference, or argument, to include the introduction of any documentary
or testimonial evidence, relating to receipt of any of the charged information by al Qaeda, al
Qaeda in the Arabian Peninsula, the enemy listed in Bates Number 00410660 through 00410664,
or any other enemy from the merits portion of the trial. In the alternative, should the Court
determine receipt by the enemy is relevant during the merits portion of the trial, the Defense
requests the opportunity to interview Mr. John Doe in order to adequately respond to the
Government?s requested relief in its motion.

Respect?illy submitted,

ID E. COO

A Civilian Defense Counsel

34230

FOR OFFICIAL USE ONLY
UNITED STATES OF AMERICA

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

Prosecution's Proposed Plan:
Storage of Appellate Exhibits
Not Accompanying the Record ofTrial
CORRECTED COPY
20 February 2013

On 5 October 2012, the Court ordered the United States to develop a plan to store any
Appellate Exhibits not accompanying the Record ofTrial ("ROT") in one place under one
custodian with a procedure for systematic reviews by the United States to ensure accountability
of such documents through any appellate review. Smce then, the United States has been
dihgentiy working with each of the applicable govemment organizations and the Office of the
Clerk oftiieCourt fortiieUnited States Army Court of Criminal Appeals ("Office ofthe Clerk
ofthe Court") to develop such a plan. With that being said, all such govemment organizations
and the Office of the Clerk of the Court agree to the storage plan as outiined hereui.
I : FACTS
The ROT in the above-captioned court-martial will consist ofboth classified and
unclassified Appellate Exhibits. Several of those Appellate Exhibits, both dassified and
unclassified, are motions for limited disclosure of classified information under Military Rule of
Evidence (MRE) 505(g)(2). The classified documents for which limited disclosure was sought
were enclosed to those motions. The Court subsequentiy conducted in camera and ex parte
reviews of those classified documents and issued several Orders goveming the disdosiu-e of such
documents.
For a majority oftiiosedocuments,tiieCourt conduded an in camera and ex parte review
in chambers (hereinafter, those documents reviewed in chambers are refened to as "Documents
In-Chambers"). For a smaller portion of those documents, the Courtfraveledto multiple
locations within Virginia, Maryland, and the District of Columbia to conduct an in camera and
ex parte review based on the information's classification level, which includes 'Top Secret" and
"Sensitive Compartmented Information," and strict confrol measures (hereinafter, those
documents reviewed at otiier locations are refened to as "Documents Off-Site"). The
prosecution estimates that "Documents Off-Site" total no more than 2,000 pages.
I I : LAW
A separate record shall be kept for each general court-martial proceeding. See Rules for
Courts-Martial (RCM) 1103(a); UCMJ art. 54(a) (2012). The prosecution, undertiiedfrection of
the militaryjudge, shall preparetfieROT as prescribed m RCM 1103 and RCM 1305. See RCM
1103(b); Army Regulation (AR) 27-10, para. 5-41 (a). Follovying mitial action,tfieROT for
general court-martial proceedings shall he forwarded to the Office of the Clerk of the Court. See
AR 27-10, para. 5-46(a).

FOR OFFICIAL USE ONLY

APPELLATE EXHIBIT
PAGE REFERENCED.
PAGE
OF
PAGES

34231

FOROFFICIALUSEONLY
Ifclassified infbrmation is withheld from the defense under Military Rule ofEvidence
505,'the entire unaltered text ofthe relevant documents as well as the Government'smotion and
anymaterials submitted in support fhereofshall be sealed and attached to the record oftrial as an
appe11afeexhibiL""MRE505(g)(4);RCM1103A;^^^^^.^o^^^^^^^^^^^v.^^^,32M.J.724,
726 (A.F.C.M.R.199I)(rtilingtfiat"ami1itaryjudgemustmakearecord of every significant^^
^^^^^^activity(otherthanhislegalresearch) adequate to assurethathis decisions are
reviewable on appeal"). Sealed exhibits may only he examined under limited circumstances, one
ofwhichmdudesfbrappellatereview. ^^^RCMI103A(b)(4). MRE 505 states that"[sjuch
material shall be made available to reviewing authorities in dosed proceedingsfiorthepurposeof
reviey^ngthedetermination ofthe mi1itaryjudge."MRE 505(g)(4); ,^^^^^.^o^^^^^^^^^^.^v.
.^^v^^.^,49M.J.434,437(C.A.A.F.1998)(m1ingthattheappel1ate court conectiyreviewed
sealed documents withheld from the accused attrial under MRE 506^^^^^^^^ and didnot abuse
its discretionbywithholding those sealed documentsfromappellate defense counsel).
IILPROPOSEDSTORAGEPLAN
The United States proposes that all Appellate Exhibits, except fbr"DocumentsOf^Site,""
accompanytheROT when fbi^arded to the Office ofthe Clerk ofthe Court. ^^^AR 27-10,
para.5-46(a). The United States proposes thatthe OfficeoftheClerk ofthe Court be
responsible fbr storingthose Appellate Exhibits accompanyingtfieROT. ^^^^^^.^^^^^.^o Uruted
States Army Court ofCriminal Appeals, Intemal Rules ofPractice and Procedure, Rules 30.1
and30.5(2009)
TheUnited States proposes that theROT consist oftwo placeholders: (l)aplaceholder
intheundassifiedROT;and(2)ap1aceho1derintfiedassifiedROT,ifneeded. It is proposed
thatan undassified placeholder beinduded in the undassifiedROT fbr all classifiedAppellate
Exhibits. The undassified placeholderwill include an undassified description ofwhere the
classifiedROT is located.
Enclosurel. It is proposed thatadassifiedplaceholderhe
indudedinfhedassifiedROT fbr otdythose Exhibits whosestorage is govemed bythis
proposed storageplan(i.e.,"DocumentsOff^Site""). The dassified placeholderwill include
where the particular Exhibit is being stored and the level ofdassification, to include anyread-on
requfrements, ofthe particular ExhibiL
Enclosure 2.
The United States proposes that "Documents Off^Site" not accompanytheROTbased
upon theparticular dassification level or strict confrol measures ofthe infbnnation contained
therein. This proposed plan only applies to the storage of"DocumentsOff^Site."The United
States proposes the fb11owingp1an,consistentwithtfieCourt"sOrderdated50ctoher 2012 and
as memorialized in the enclosed draft Order, forthe storageof'DocumentsOff^Site:""
1. The United States proposes thatthe Exhibits not accompanyingtheROT,spedfica11y
"Documents Off^Site,"be stored inadedicatedtwo-drawersafelocatedin the Litigation
Division ofthe Cenfral Intelligence Agency. The office which will store the safe isaSensitive
Compartmented InfbrmationFacility. The safe will have one combination fbr both drawers and
will only store "Documents Off^Site." The United States proposes that "Documents Off^Site"he
separated hyExhihitnumherandsealedhythemilitaryjudge separately. Itisproposed thaf the
2

FOROFFICIALUSEONLY

34232

FOROFFICIALUSEONLY
sealing orderindude the contact information forthe applicable equity holderwhose infbrmation
is contained within the given ExhibiL ^^^Endosure4.
2. The United States proposes that the safe combination be stored bythe fbllowing confrolled
billets: (1)fhe Deputy Chiefin the LitigationDivision offhe Cenfral Intelligence Agency; (2)
the Spedal Assistant in the LitigationDivision offhe Cenfral Intelligence Agency; and (3)tfie
AreaSecurityOfficerwithintheOfficeoffheGeneral Counsel ofthe Cenfral Intelligence
Agency.
3. In addition to those billets set fbrthinparagraph2, the United States proposes that the
fbllowing confrolled billets have access to tiie contents ofthesafe, pending ohtainingtheproper
securitydearanceandread-onrequirementsdetai1edmparagraph4: (I)ChiefofJustice,the
OfficeoftfieStaffJudgeAdvocate("OSJA"),Mi1itaryDisti^ctofWashington("MDW"");(2)
seruorparalegal, OSJA, MDW; (3)the Clerk of the Court, United States Army Court of Criminal
Appeals (ACCA);(4) the Deputy Clerk offhe Court,ACCA;and(5) the militaryjudges of
ACCA detailed to fhis case, should fhis case appear befbre the appellate court (the "appellate
court judges"), to indudeaddegated commissioner assistingtfie appellate court. Additionally,
the lead trial counsel hi the above-captioned court-martial, MAJ AshdenFein, will be given such
access fbr continuitypurposes.
4. The United States proposes thatMDW,theOfficeoftfieClerkoftheCourt, and the Central
Intelligence Agency heresponsible fbr ensuringpersonsoccupyingfhose billets set fbrth in
paragraphs 2-3have and maintain proper security clearances, and are properly read-on. The
requisite security clearance is TS-SCI and fhe necessary read-on requirements are SI, TR,G, and
HCS. Some ofthe sealed Appellate Exhibits contain Altemative Compensatory Confrol
Measures (ACCM) and Special Access Programs (SAP)material that will require additional
read-onrequirements, if and when those exhihitsare unsealed.
5. The United States proposes thatpersonsoccupyingthe above billets atMDW and theOffice
ofthe Clerk ofthe Court berequired to conductaperiodicreview ofthe envelopes containing
the sealed Exhibits forthe sole purpose of confirmingtheir continued proper storage. The
United States proposes thatpersonsconducfingthisreviewaccountfbr each Exhibitand
memorializetheirreview with theendosedmemorandumfbrrecord, which will then become
part oftheROT,andbymarkinghis/herinitia1s with the dateofhis/herreview on theenvdope
of each sealed Exhibitwhoseproper storage was confinned. ^^^Endosure5. Persons
conductingthis periodic review will not unseal the envelopes. Befbre the ROT is forwarded to
the Office offhe Clerk of the Court, MDW will beprimarilyresponsible fbr conductingthis
review. AftertheROT is forwarded to the Office ofthe Clerk ofthe Court, the Office ofthe
Clerk ofthe Court will beprimarilyresponsible fbr conductingthis review. TheUnitedStates
proposes that the Clerk ofthe Courtmay delegate this responsibi1itytoMDW,and if delegated
MDW will heresponsible. This review will be conducted atthe Cenfral Intelligence Agency and
will occur, ataminimum, once everythreemonths.
6. Should theappellatecourt judges request access to anysuchExhihitsunder RCM
1103A(h)(4), theUnited States proposes thatthe Officeofthe Clerk ofthe Courtnotifythe
applicable govemment organization(s), and provideaby-name list, induding dearancestatus, of
3

FOROFFICIALUSEONLY

34233

FOROFFICIALUSEONLY
those who will hereviewingtherecords. Onlyproperly cleared appellate eourtjudges may
review the records, and any such review may oidytake place at the Cenfral Intelligence Agency.
The United States proposes thatno member ofGovemmentAppdlate Division or Defense
Appellate Division have access to any such Exhibits underthis storage plan. TheUnitedStates
proposes that the Office ofthe Clerk ofthe Court heresponsible fbr ensuringthe appellate court
judges have and maintain proper security clearances, and are properlyread-on.
7. The documents are being stored solely forthe appellate record. Once the appellate process, if
any, concludes, the United States proposes thatthe Office ofthe Clerk ofthe Courtnofifytfie
O^ce offhe General Counsel fbr each government organization and coordinate with those
organizations to ensure suchmaterial is properly discarded.
8. The Uruted States proposes that this storageplan, if adopted bythe Court, be marked "For
Official Use On1y"based on the sensitive involvement ofcertain govemment organizations.
Alfhoughnot dassified, the United States requests the Courtnotpuhlicallyidentifythe Central
Intelligence Agency as the organization who y^ll store these records.

5Ends
ASHDENFEIN
1. Sample Undassified Placeholder
MAJ,JA
2. SampleClassifiedPlaceholder
Trial Counsel
3. DraftOrder
4. Sample Classified Infbnnation Sealing Order fbr "Documents Off^Site"^
5. Sample Memorandum fbr Record
Icertifytfiatlserved or caused to he servedatme copy ofthe above on Mr. David
Coombs, Civilian Defense Counsel via elecfronic mail, on 20 Febmary 2013.

ASHDENFEIN
MAJ,JA
TrialCounsd

FOROFFICIALUSEONLY

34234

UNITED STATESOF AMERICA
v.
Manning, BradleyE.
PFCU.S.Army,
HHCU.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Prosecution's Proposed Plan:
Storage of Appellate Exhibits
Not Accompanying the Record ofTrial
Enclosurel
^February 2013

34235

Sample Unclassified Placeholder

Enclosure 1 to
Appellate Exhibit 2;
Sealed by Court Order
on 1 March 2013
Original document is maintained in the
classified Record of Trial at:
Office of the Clerk of the Court
United States Army Court of Criminal Appeals
9275 Gunston Road
Fort Belvoir, Virginia 22060
Telephone: (703) 693-1331

34236

UNITED STATESOF AMERICA
Prosecution's Proposed Plan:
Storage of Appellate Exhibits
Not Accompanying the Record ofTrial
Manning,BradleyE.
PFCUSArmy,
HHCUSArmyGarrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

Enclosure2
8February2013

34237

UNCLASSIFIED
Sample Classified Placeholder

Enclosure 1 to
Appellate Exhibit 3;
Sealed by Court Order
on 1 March 2013
Classification Level: Top Secret
Read-On Requirements: SI/TK/G/HCS
Original document is maintained at the
Central Intelligence Agency
Litigation Division, Office of the General Counsel
930 Dolley Madison
McLean, Virginia 22101
Telephone: (703) 555-0000

UNCLASSIFIED

34238

UNITED STATESOF AMERICA
V.

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

Prosecution's Proposed Plan:
Storage of Appellate Exhibits
NotAccompanyingthe Record ofTrial
Enclosure3
^February 2013

34239

FOROFFICIALUSEONLY
INTHEUNITEDSTATESARMY
FIRST JUDICIALCIRCUIT
UNITEDSTATESOF AMERICA

Manning, BradleyE.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 222II

ORDER: ^TORAGEOF
APPELLATEE^HIBITSNOT
ACCOMPANYING THE
THERECORDOFTRIAL
DATED:

On50cfoher 2012, fhe Court ordered fhe Government fodevelopaplanfo store any
Appellate Exhibits not accompanying fhe Record ofTrial ("ROT") in one place under one
custodian wifhaprocedure for systematic reviews hy fhe Govemment fo ensure accounfahilify of
such documents through any appellate review. On8Fehruary 2013,fhe Govemment submitted
its proposed plan and notified fhe Court thaf all applicable govemment organizations and the
Office offhe Clerk offhe Court agree to fhe storage plan as stated.
Findings ofFact:
1. The ROT in the ahove-capfioned court-martial will consist ofboth dassified and undassified
Appellate Exhibits. Several ofthose Appellate Exhibits, both dassified and undassified, are
motions fbr limited disdosure ofclassified information under Military Rule ofEvidence (MRE)
505(g)(2). The dassified documents fbr which limited disdosure was sought were enclosed fo
those motions. The Court subsequently conduded ^^^^^^^^ and ^:^^^^^^ reviews ofthose
dassified documents and issued several Orders goveming the disdosure ofsuch documents.
2 Forama^orifyofthosedocumenfs,fheCourtcondudedan^^^^^^^^^and^^^^^^^reviewin
chambers (hereinafter, those documents reviev^ed in chambers are referredto as "Documents InChamhers"). Forasmaller portion of those documents, fhe Court fraveled fo multiple locafions
within Virginia, Maryland, and fhe Disfrid ofColumbia focondud an ^^^^^^^^ and ^^^^^^^
review based on the infbrmation'sdassification level, which indudes "Top Secret" (TS) and
"Sensitive Compartmented Infbrmation" (SCI), and strict control measures (hereinafter, those
documents reviewed af ofher govemment facilities are referred to as "Documents Off^Sife").
The prosecufion estimates that "Documents Off-Site" total no more than 2,000 pages.
The Law:
1. Aseparafe record shall he kept fi:or each general court-martial proceeding.
Rules for
CourtsMartial (RCM)1103(a)^ UCMJ art54(a)(2012).Theprosecufion,underfhedirecfionof
fhe military judge, shall prepare fhe ROT as prescribed inRCM1103 andRCM 1305. ^^^RCM
1103(h)^ Army Regulation (AR) 2710, para.541(a)Follov^nginifial adion, fhe ROT fbr
general court-martial proceedings shall he fbrv^ardedfo fhe Of^ce offhe Clerk offhe Court.
AR2710,para 5 46(a)

FOROFFICIALUSEONLY

34240

FOROFFICIALUSEONLY

2. Ifdassified information is y^ifhheld from fhe defense under Military Rule ofEvidence 505,
"fhe entire unaltered text ofthe relevant documents as y^ell as fhe Government'smotion and any
materials submitted in support fhereofshall he sealed and attached fo fhe record oftrial as an
appellafeexhihiL"MRE505(g)(4)^RCM1103A^.^^^^/.^^^^^^^^^^^^^^i^.^/^^
726(A.F.C.M.R.199I)(mling that "a military judge must makearecord of every significanf^^
^^^^^^adivify(ofherthan his legal research) adequate fo assure that his decisions are
reviewable on appeal"). Sealed exhibits may only be examined under limited circumstances, one
ofwhichindudesfbrappellatereview.i^^^RCM 1003A(b)(4).MRE505 sfatesthat"[sjuch
material shall be made available to reviewing authorities in dosed proceedings fbr fhe purpose of
reviewing the determination ofthe military judge." MRE505(g)(4)^.^^^^/.^^^^^^^^^^^^.^v.
.^^v^^.^,49M.J.434,437(C.A.A.F.1998) (mling that fhe appellate court correctlyreviev^ed
sealed documents y^ifhheld from fhe accused af trial under MRE 506^^^^^^^^ and did not abuse
its discretionbywithholding those sealed documents from appellate defense counsel).
ORDER:
1. All Appellate Exhibits, except fbr "Documents Of^Sife,"shall accompany fhe ROTv^hen
forwardedfotheOfficeoffheClerkoffheCourt^^^AR2710,para.546(a) TheOfficeof
the Clerk ofthe Court shall be responsible fbr storing those Appellate Exhibits accompanying fhe
ROT. ^^^^^,.^^^^/.^^ United States Army Court of Criminal Appeals, Infernal Rules ofPradice
and Procedure, Rules 30.1 and 30.5.
2. The ROT shall consist offv^o placeholders: (I)aplaceholderinfheundassifiedROT^and
(2)aplaceholder in the dassifiedROT,if needed. An undassified placeholder shall he included
in fhe undassifiedROT fbr all dassified Exhibits. The undassified placeholder shall include an
undassified description of^where fhe classifiedROT is located. Adassified placeholder shall he
included in fhe classifiedROT fbr onlyfhose Appellate Exhibits whose storage is governed hy
this Order (i.e., "Documents Off^Sife"). The dassified placeholder shall include v^here fhe
particular Appellate Exhibit is heing stored and fhe level ofdassification, to include any read-on
requirements, offhe particular Appellate ExhibiL Sample dassified and undassified
placeholders are endosedfo fhe Govemmenf'^proposed storage plan.
3. "Documents Off^Sife" shall not accompany fhe ROT based upon fhe particular dassification
level or strict control measures offhe information contained therein.
4. "Documents Off^Site" shall be stored inadedicafedtwodrawer safe located in fhe Litigation
Division offhe Central Intelligence Agency. The office which will store fhe safe isaSensitive
Compartmented InfbrmafionFadlity. The safe v^ill have one combination fbr both drawers and
will only store "Documents Off^Site." "Documents Of^Sife"y^ill be separated by Exhibit
number and sealed separately. Each separate sealing order will include the contact information
forthe applicable equify holder whose information is contained within fhe given Appellate
ExhibiL Asample Sealing Order is enclosed fo fhe Govemmenf'sproposed storage plan.

FOROFFICIALUSEONLY

34241

FOROFFICIALUSEONLY
4. The safe combination shall be stored by fhe fbllowing confrolled billets: (l)fhe Depufy Chief
in the Litigation Division offhe Central Intelligence Agency^ (2)the Spedal Assistant in fhe
Litigation Division ofthe Central Intelligence Agency^ and (3) the Area Securify Officer within
the Office offhe General Counsel offhe Cenfral Intelligence Agency.
5. In additionto those billets set fbrth in paragraph 4, the following confrolled billets shall have
accessto fhe contents ofthe safe, pending obtaining fhe proper security clearance and read-on
requirements detailed in paragraph 6: (l)Chief ofJustice, the Office of fhe Staff Judge
Advocate("OSJA"),MilifaryDisfricfofWashingfon("MDW")^(2)seniorparalegal,OSJA,
MDW^(3)fheClerkoffheCourt, United SfafesArmyCourtofCriminalAppeals(ACCA)^(4)
fhe Depufy Clerk offhe Court,ACCA^and(5) fhe military judges ofACCA detailed fo fhis case,
should fhis case appear before fhe appellate court (the "appellate court judges"), foindudea
delegated commissioner assisting the appellate court. Addifionally,the lead trial counsel in fhe
above-captioned court-martial, MAJ AshdenFein, shall he given such access fbr continuity
purposes.
6. MDW,fhe Office offhe Clerk of the Court, and fhe Cenfral Intelligence Agency shall be
responsible fbr ensuring persons occupying those billets set fbrth in paragraphs 4-5have and
maintain proper securify clearances, and are properly read-on. The requisite security clearance is
TS-SCI and fhe necessary read-on requirements are SI, T^,G, and HCS. Some ofthe sealed
Appellate Exhibits contain Alternative Compensatory Confrol Measures(ACCM) and Spedal
Access Programs (SAP) material fhaf will require additional read-on requirements, ifand when
those exhibits are tmsealed.
7. Persons occupying fhe above billets at MDW and fhe Office offhe Clerk offhe Court shall be
responsible fbr condudingaperiodic reviews offhe envelopes containing fhe sealed Appellate
Exhibits forthe sole purpose of confirming their continued proper storage. Persons conducting
fhis reviev^ shall account fbr each Exhibit and memorialize their reviewv^fh the memorandum
firorrecord enclosed to fhe Govemmenf'sproposed storage plan, which shall then become part of
fhe ROT,and by marking his/her initials with fhe dateofhis/herreview on fhe envelope of each
sealed Exhibit y^hose proper storage was confirmed. Persons conducting fhis periodic review
shall not unseal fhe envelopes. Befbr^e fhe ROT is forwarded tothe Office offhe Clerk offhe
Court, MDW ^hall be primarily re^pon^ibl^fi^r^ondudingfhi^r^vi^w. Aft^erfheROTis
forwarded tothe Office ofthe Clerk ofthe Court, the Office offhe Clerk ofthe Court shall be
primarily responsible fbr conducting this review. The Clerk ofthe Court may delegate fhis
responsibilifyfoMDW,and if delegated MDW will be responsible. This review shall be
conduded atthe Cenfral Intelligence Agency and shall occur, ataminimum, once every three
months.
8. Should fhe appellate eourtjudges request access toany such Exhibits under RCM
1103A(b)(4), fhe Of^ce offhe Clerk offhe Court shall notify fhe applicable government
organizafion(s), and provideaby-name list, induding clearance status, of those who will be
reviev^ing fhe records. Only properly cleared appellate court judges may reviewthe records, and
any such reviev^may only fake place af fhe Cenfral Intelligence Agency. No member of
Government Appellate Division or Defense Appellate Division shall have access toany such
Exhibits under fhis storage plan. The Of^ce offhe Clerk offhe Court is responsible fbr ensuring
^

FOROFFICIALUSEONLY

34242

FOROFFICIALUSEONLY
fhe appellate eourtjudges have and maintain proper securify clearances, and are properly readon.
9. The Exhibits are being stored solely fbr fhe appellate record. Once fhe appellate process, if
any,condudes, fhe Office offhe Clerk offhe Court shall notify fhe Office of fhe General
Counsel fbr each government organization and coordinate y^ifh those organizations toensure
such material is properly discarded.
SoORDEREDfhis^

day ofFebruary 2013.

DENISERLIND
COL,JA
ChiefJudge, 1^^ Judicial Circuit

4
FOROFFICIALUSEONLY

34243

UNITED STATESOF AMERICA
Prosecution's Proposed Plan:
Storage of Appellate Exhibits
NotAccompanyingthe Record ofTrial
Manning,BradleyE.
PFCU.S.Army,
HHC,U.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

Enclosure4
8February2013

34244

Sample Classified Information Sealing Order
INTHEUNITEDSTATESARMY
FIRST JUDICIALCIRCUIT
UNITEDSTATES
v^
MANNING,BradleyE.,PFC
HHCU.S.ArmyGarrison
JointBaseMyerHendersonHall
Fort Myer,Virginia 22211

CLASSIFIED INFORMATION
SEAL ORDER

1March2013

1. Aportion of AEL^^I(71)(Enclosure1)contains dassified infbrmation as defined in MRE
505(b). The enclosure is classified at theTOP SECRET level and has the following readon
reouirements:TI^G/HCS The Department ofState, (202) 555 0000. is theequitvholderofthe
classified infbrmation contained within this endosure. This portion ofthe exhibit will be sealed
in therecord oftrial in accordance withRCM1103A,RCM1104(b)(1)(D),andMRE 505
2. The Court Security Officer shall causeaproper security classification to be assigned to the
record oftrial, to each dassified exhibiL and to each page ofthe record oftrial in which
classified infbrmation appears, in accordance with RCM1103(h). The Court Securify Officer
will ensure that the sealed exhibits are properly marked, induding an atmotation on each, that the
material was sealed by order ofthe militaryjudge prior to insertion into the original record of
triaL Trial counsd will dearly identify in the record oftrial where dassified exhibits and pages
in the record oftrial will be maintained.
3. This portion ofthe exhibit contains classified national security infbrmation. This dassified
infbrmation shall be handled inamanner consistent with Executive Order 13526. An
individual's access to the classified infbrmation in this exhibit is subject to the fbllowing: having
the appropriate security clearances signing an approved nondisclosure agreements havinganeedto-know the informations and acknowledging the Judicial Protective Order forClassified
Infbnnation, datedl6March 2012.
4. Sealed exhibits will not be opened or examined except forthe fbllowing:
a. Prior to authentication ofthe record by the militaryjudge, sealed materials may be
examined upon order from the militaryjudge based on good cause.
b. After authentication and prior to disposition ofthe record oftrial pursuant to RCM1111,
sealed materials may be examined upon order issued from the military judge uponashowing of
goodcauseatapostttialArtide 39(a) session directedbytheConveningAutiiority
c. Reviewing and appellate authorities meeting the criteria in paragraph3may examine
sealed matters when those authorities determine that such action is reasonablynecessary toa
proper fulfillment oftheir responsibilities under the Uniform Code ofMilitary Justice, the
Manual fbr Courts Martial, goveming directives, instmctions, regulations, and applicable mies
of professional responsibility.

34245

Sample Classified Information Sealing Order

5. No person authorized to examine sealed exhibits shall photocopy,photograph, duplicate, or
disclose the contents of the sealed exhibit in the absence from an order byamilitary judge, the
Judge Advocate General or designee, or an appellate court, or other court of competent
jurisdiction.
ORDERED, thisthe1stdayofMarch2013

DENISERLIND
COL,JA
ChiefJudge, 1st Judicial Circuit

34246

UNITED STATESOF AMERICA
Prosecution's Proposed Plan:
Storage of Appellate Exhibits
Not Accompanying the Record ofTrial
Manning, BradleyE.
PFC, U.S.Army,
HHCU.S.ArmyGarrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

Enclosures
8February2013

34247

Sample Memorandum for Record
ANJACL

10Decembcr2013

MEMORANDUMFORRECORD
SUBJECT: Periodic Accounting ofEnvelopes Containing Sealed Appellate Exhibits Not
Accompanying the Record ofTrial^United Statesv.PFC Bradley E.Manning

1. On the above date and pursuant to the Order relating to the Storage ofAppdlate Exhibits Not
Accompanying the Record ofTrial datedlMarch 2013,the undersized accounted fbr the envelopes
containing the fbllowing sealed Appellate Exhibits fbr the sole purpose of confirmingtheir continued
proper storage (initial, if accounted for):
a. (
b. (

zz. (

) Appellate Exhibit 10
)Endosure5to Appellate Exhibitll

)Enc1osure4to Appellate Exhibit 445

2. The undersigned initialed and dated the envelope containing each ofthe above sealed
Appellate Exhibits whose proper storage was confirmed.
3. Ifany ofthe envelopes containing the above sealed Appellate Exhibits are not accounted fbr,
the undersigned will notify the Clerk ofthe Court fbr the United States Army Court ofCriminal
Appeals and the ChiefofJustice, Office ofthe Staffjudge Advocate, Military District of
Washington.
4. The undersigned will ensure this Memorandum fbr Record is included in the Record ofTrial
which is being stored with the Officeofthe Clerk of the Court fbr the United States Army Court
ofCriminal Appeals.

(signature provided)
Print Name: John Doe
Job Title: Chief ofJustice. OSJA.MDW

0 34248

UNITED STATES OF AMERICA

Prosecution Noti?cation of
Security Clearances for
Defense Witnesses

V.

Manning, Bradley E.

PFC, U.S. Army,

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

14 February 2013



On 15 October 2012, the defense requested that the United States produce several
individuals, to include Ambassador Peter Galbraith, Colonel Morris D. Davis, USAF Retired,
and Professor Yochai Benkler, as witnesses in the above-captioned court-martial. See Appellate
Exhibit (AE) 344. On 26 October 2012, the defense requested approval to share classi?ed
information with the above individuals. See AE 372. On 23 November 2012, the defense moved
to compel production of the above individuals. See AB 408. The Court subsequently ordered the
production of the three witnesses.

The current Scheduling Order requires the United States to provide notice as to whether
defense witnesses would be given a security clearance necessary to view any classi?ed
information requested by the defense by 14 February 2013 and to complete any security
clearance checks by 22 April 2013. See AE 466. Pursuant to this Scheduling Order, the United
States provides the following notice:

a. The United States Anny approved

applying for a security clearance. Processing his security clearance is underway and, pending
any unforeseen results from his background check, the United States expects this process to be
completed by the Court suspense of 22 April 2013. The United States is also working with the
government organization(s) with equities in the classi?ed information to grant
access to view the classi?ed information and expects this approval, assuming a

clearance is granted, by the Court suspense of 22 April 2013.

b. USAF Retired. The United States Army approved?, USAF
Retired, applying for a security clearance. Processing his security clearance is underway and,
pending any unforeseen results from his background check, the United States expects this
process to be completed by the Court suspense of 22 April 2013. The United States is also
working with the government orgar1ization(s) with equities in the classi?ed information to grant
Col Davis, USAF Retired, access to view the classi?ed information and expects this approval,
assuming a clearance is granted, by the Court suspense of 22 April 2013.

e- The United States Anny disapproved? as he is

not eligible for a security clearance. However, the United States is working with the government
organization(s) with equities in the classi?ed information to grant ?1imited

APPELLATE EXHIBIT f??l
PAGE REFERENCED:
PAGE PAGES



0 0 34249

access to view the classi?ed information for the purposes of this court-martial, and expects this
approval by the Court suspense of 22 April 2013.

ASHDEN FEIN
MAJ, A
Trial Counsel

I certify that I served or caused to be served a true copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 14 February 2013.

HDEN EIN
MAJ, A
Trial Counsel

34250

UNITEDSTATESOF AMERICA

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Manning, BradleyE.
PFC, U.S.Army,
HHC, U.S.Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virgmia 22211

Government Response to
Defense Motion
for Appropriate Relief

14 February 2013

RELIEFSOUGHT
The United States respedfhllyrequesfs that the Court deny the reliefrequested in the
Defense Response to Goverrmient Motion fbr ^^^^^^^^^ Proceeding Under MRE 505(i)(2)and
Defense Motion fbr Appropriate Relief to Preclude EvidenceofReceipt by Enemy During
Merits dated8Febmary 2013 (hereinafter "Defense Motion"). The United States requests that
the Court deny the Defi^nse request to preclude the prosecution from raising or eliciting any
evidenceoftheenemy'sreceipt ofintelligence. The United States also requests the Court deny
fhe Defense request to interview Mr.John Doe prior to fhe Court'sconsideration ofthe
Govemment Motion and issuance ofanyfindingspursuant to the ^^^^^^^^^ proceeding.
BURDEN OFPERSUASION
The burden of proof on any factual issue the resolution ofwhich is necessary to deddea
motion shall be by preponderance ofthe evidence. Rule fbr Courts-Martial (hereinafter "RCM")
905(c)(1). The burden ofpersuasion on any factual issue the resolution ofwhich is necessary to
decideamotion shall be on the moving party. RCM 905(c)(2).
FACTS
The accused is charged with giving intelligence to the enemy,in violation of Artide 104,
Uniform Code ofMilitary Justice (hereinafter"Artide 104"). The accused is also charged with
eight specifications alleging misconduct in violation of18U.S.C.^ 793(e), five specifications
alleging misconduct in violation of18U.S.C.^641,two specifications alleging misconduct in
violation of18U.S.C.^ 1030(a)(l), five spedficafions alleging miscondud in violation of
Artide 92 ofthe UCMJ,and one spedfication alleging misconduct prejudicial to good order and
discipline and service discrediting,
Charge SheeL
WITNESSES/EVIDENCE
The United States does not request any witnesses or evidence be produced fbr this
motion. The United States requests that the Court considerits Mofion fbr ^^^^^^^^^ Proceeding
Under MRE 505(i)(2)("hereinafter Govermnent Motion") and referenced Appellate Exhibits.

APPELLATEEXHIBIT^^
PAGEREFERENCED:
^
PAGE
OF
PAGES

34251

LEGALAUTHORITY AND

ARGUMENT

LRECEIPT OF INTELLIGENCE IS RELEVANT
The Defense requests that fhe Court preclude the Govemment from raising or eliciting
any discussion, reference, or argumenL to include fhe introduction ofany documentary or
testimonial evidence, relatingto receipt ofany ofthe charged infbrmation by alQaeda, alQaeda
in the Arabian Peninsula, the enemy listed in Bates Number 00410660 through 00410664, or any
ofher enemy from the merits portion offhe triaL The Court should deny this Defense request
because the evidence is relevant and not unfairly prejudidaL
Relevant evidence is evidence having any tendency to make the existence ofany fad that
is ofconsequence to the determination ofthe action more or less probable than it would be
without the evidence. MRE 401. Relevant evidence is necessary when it is not cumulative and
when it would contribute toaparty'spresentation ofthe case in some positive way inamatter at
issue. The militaryjudge has the initial responsibility to detemiine whether evidence is relevant
under MRE 40L^^^^^^^^^^^^^I^^^^,69ML 236(CAAF2010)
A. Receipt ofintelligence by the Enemy isaDefinitional Requirement ofintelligence
Elements of charged offenses are relevant and defined by the spedfication. ^^^RCM
307(c)(3)(defrningaspedficationasaplain, concise, and definite statement ofthe essential fads
constituting the offense charged). The accused is charged with knowingly giving intelligence to
the enemy by indirect means in violation of Artide104.
Charge SheeL Artide 104(2)
provides fhe fbllowing elements fbr Giving Intelligence tothe Enemy:
(a) fhat fhe accused, without proper aufhorify,knowingly gave intelligence
infbrmation to the enemy^ and
(b)

that the intelligence infbrmation was tme or implied the tmth, at least
in part.

Appellate Exhibit LXXXl a t i 2. "Intelligence" means any helpful infbrmation given fo and
received by the enemy,which is tme, at least in part. Appellate Exhibit CDXat1^(^^
^^^^^^^^^^^^^^^^,^^^.^B^^,^^/^^^^^^^^^^^^^^^/^^^^^^3-28

(hereinafter "Benchbook"). The foundational treatise, ^ ^ / ^ ^ ^ ^ ^ ^ ^ i ^ ^ ^ ^ . ^ ^ ^ ^ ^ ^ ^ ^ ^ . ^ , supports
this definitional requirement ofintelligence, stating,"Ofthe specific instances ofadired
violation of[giving intelligence to the enemy^...[i^t is necessary that the enemy shall have
been actually infbrmed." Wi11iamWinthrop,^^/^^^^^^i^^^^^^^^^^^^^.^634(2ded.1920
reprint)(hereinafter"Winthrop")(emphasis in original). Therefbre, receipt ofintelligence by the
enemy is relevant asadefinifional requirement offhe element ofintelligence.
B. Giving Intelligence to the Enemy IsaSeparate and Disfind Crime from Communicating with
the Enemy

34252

The Defense notes that no response or receipt by the enemyis required to proveacharge
ofcommunicating with the enemy^ however, the accused is charged with giving intelligence to
the enemy,not communicating with the enemy. ^^^^ Charge SheeL Communicating with the
enemy entails "partidpatingin discussions" or "consulting" with fhe enemy, ^^^^^^^^^^.^v
^^^^^^/^^,19C.M.R.452,474(A.B.R 1955) Communicatingwiththeenemyviolatesthe
absolute mle ofnon-intercourse and indudes "correspondenceofacomparatively harmless
character." Winthropat633. Giving intelligence to the enemy,however, requires both thaf the
intelligence be received by the enemy and tme, at least in part. ^^^^^ at 634. Indeed,
communications with the enemythat are neither tme nor received by the enemy fail to amount to
giving intelligence to the enemy.
at 633-34 ("And so ofthe communicating to the enemy of
supposed fads, which however are not tme and do not therefbre amount to the giving of
intelligence. . . . If therefore the intelligence fails to reach[theenemyj,[the offense of giving
intelligence to the enemyj is not completed though the offence ofholding conespondence may
be."). Thus, giving intelligence to the enemy is distinct and separate from communicating with
the enemy and notasubsef of communicating or conesponding with the enemy because
"Congress has defined aiding fhe enemy as giving intelligence tothe enemy or communicating
with the enemy." ^^^^^^i^^^^^.^v.^^^^^.^^^,68M.J.378,386(C.A.A.F.2010)(emphasisin
original)(citing^^^^^^^^^^^.^vD^^^^^^.^^^, 20 C.M.R. 154,166(C.M.A. 1955) (''As weread
Artide 104, none ofthe ads enumerated is conditioned upon, or restricted by,another. Rather,
the Artide prohibits separate and distinct acts, each ofwhich is suffrdent by itselfto constitute
theoffense''))^ Winthrop at 633 34^.^^^ ^/.^^(^^^^^^^^^^^^^^/.^^^, 20 C.M.R.461,4
1955)(creating two statutory categories of aiding the aiding enemy).^ Accordingly,the element
ofintelligence requiresademonsfration that the intelligence was actually received by fhe enemy
and therefbre must not be precluded.
C. Receipt ofintelligence by the Enemy Is Fadally Relevant
Moreover, even were intelligence not defined to require actual receipt, receipt tends to
prove the ad of giving. The ad ofgiving logically carmot be completed until receipt occurs^
otherwise, the ad would constitute aftempted giving. Receipt is therefbre probative in two ways.
First, receipt is probative because it is required to complete the act of giving. Second, even i f
receipt is not required, the fact that intelligence was received makes it more likely that if was
given. The Defense avers that evidence ofthe receipt ofintelligence constitutes inelevant afterthe-fact evidence. The Defense conflates evidence resulting from an act that isadefinitional
requirement of an dement with after-the-fact evidence that could not alterapreviously formed
^^^.^^^^.^ Therefbre, the Defense request to preclude evidence ofadefinitional requirement of
the element ofintelligence must not be denied.

^^/.^^^ quotes the Uniform C^ode ofMilitary Justice(1^50), which statutorily constructs two categories of aiding the
enemy under Article 104(2): l)harboring the enemy,protecting the enemy,or giving intelligence to the enemy,and
2)communicating with the enemy,corresponding with the enemy,or holding intercourse with the enemy.
^^.^^^,20 C.M.R. at 466. The first category consists of providingatangible form aid to the enemy whereas the
second category describes actions that violate the absolute rule ofnon^intercourse with the enemy: the two
categories are considered to be separate. ^^^Winthrop,.^^^^^.
^ The Defense acknowledged this concept ofrelevance, noting thatamedical report, ostensibly documenting an
injury stemming from an act, would be relevant toacharge of grievous bodily harm.
Audio Record, Article

3

34253

D. Receipt ofintelligence Is Not Unfairly Prejudicial
Fina11y,evidence of receipt ofintelligence by the enemy is not unfairlypre^udidaL The
Defense raises several theories forthe proposition that evidenceoftheenemy'sreceipt of
intelligence causes unfairpre^udice. FirsL fhe defense alleges determining whether the enemy
actually received the intelligence would cause unnecessary delay. Defense Motion^19. The
definitional requirement ofintelligence as defined by the Benchbook and Winthrop requires
evidence ofreceipt by the enemy. Providing evidence to proveaspedfication does not cause
unnecessary delay nor does it unfairly prejudice fhe accused. Second, the Defense opines that
the prosecufion'sintention to call six witnesses and relocate and dose the Court will also cause
undue delay. Defense Mofion^20. Instead, the United States intends to call onlythose
witnesses absolutely necessary to authenticate evidenced each ofthe six witnesses will testify
aboufalink in the chain of custody fbr the particular pieces of evidence. Additionally, the
prosecution has nanowlytailored its request by asking to conductadosed session at an
altemative location only fbrasingle witness based on the United States'interests in protecting
both witness safety and dassified infbrmation.
Govemment Motion. Third, the Defense
argues that "references to receipt ofthe infbrmation by the enemy serves [.^^^^ only to prejudice
the fact-finder into makingadetermination on an improper basis." Defense Motion^20.
However, receipt ofintelligence bythe enemy is relevant to the spedfication alleging that the
accused aided fhe enemy by knowingly giving intelligence to the enemy by indirect means.
Therefbre, evidence ofreceipt ofintelligence bythe enemy should not be preduded because if is
not unfairly prejudidaL
IL Defense'sRequest to Interview Mr. Doe Is Not Ripe
In the altemative, the Defense requests an interview with Mr. Doe in order to respond to
the Government Motion. Artide 46 andRCM 701(e)do not createaright to interviewawitness
fbr the purposesofpreparing fbr an ^^^^^^^^ proceeding under MRE 505(i) where the
infbrmation the Defense seeks to elicit is the same infbrmation the United States seeks to protecL
MRE 505(i),analysisatA22 42^RCM 701(f) RCM 701(e)implementsArtide46's
protection ofequal opportunity fbr interviewing witnesses and inspecting evidence. RCM 701(e)
("Each party shall have adequate opportunity to prepare its case and equal opportunity to
interview witnesses and inspect evidence."). However, because the classified infbrmation
privilege has been invoked,RCM 701(f) precludes disdosure of such dassified infbrmation.
Appellate ExhibitXXXVI at 9^RCM701(f^(statingthatRCM 701 does notrequiredisdosure
ofinfbrmation protected under the Military Rules ofEvidence)^ Govemment Motion.
MRE 505 makes privileged dassified infbrmation ifdisdosure would be detrimental to
nationalsecurity. MRE 505(a). Moreover, the privilege under MRE 505 applies to "all stages of
the proceedings."
In the instant case, the United States has invoked the dassified
information privilege and requested an ^^^^^^^^ proceeding. Govemment Motion. "Priorto
the ^^^^^^^^^ proceeding, the Govemment shall provide the accused with notice ofthe
infbrmation thatwill be afissue."MRE505(i)(4)(A)Furthermore,"nothingwithin [MRE 505j
requires that fhe defense be provided withacopy ofthe classified material in question when the
39(a) atlL2^:241L2^^37 (^6 April 2^12^. Foracharge of grievous bodily harm, bodily harm is an element and
evidence ofthat harm would be relevant. ^^^^^^^^^^^^^^.^^.^^^^,62M.J.264,266(C.A.A.F.2^05).

34254

govemment submits such infbrmation to the military judge pursuant to MRE 505(i)(3)in an
effort to obtain an ^^^^^^^^ proceeding underthe Rule." MRE 505(i), analysis at A22 42.
The Defense seeks the dassified infbrmation befbreaCourt determination in contravention of
fhe process created under MRE 505(i).
By its request to interview Mr. Doe priorto the ^^^^^^^^ proceeding, the Defense seeks
to rendermoot the invocation ofthe classified infomiation privilege. The Defense requests to
conduct an interview befbre fhe Court determines the extent ofthe protection required forthe
infbrmation fbr which the dassified infbrmation privilege was invoked, ^^^^^/^^^^^v.^^^^^,
59 M.J.841,855 56 ( A F C L Crim. App. 2004),^^v^^^^^^/^^^^^^^^^.^(statingthatMRE 505
empowers the military judge to control the discovery process). Therefbre, the United States
requests that fhe Court denyfhe defense request to interview Mr. Doe priorto the Court's
consideration ofthe Govemment Mofion and issuance ofany findings pursuant to the ^^^^^^^^^
proceeding.
Given the invocation ofthe classified infbrmation privilege and the limitations requested
therein, the Defense should not be granted pretrial access to Mr. Doe. The Govemment Motion
presents adequate infbrmation to allow the Defense to prepare fbr trial with respect to Mr.Doe's
testimony. The proper fbmm to litigate the Defense'spretrial access to Mr. Doe is during the
^^^^^^ proceeding but after the Govemment Motion has been adjudicated or thereafter.
CONCLUSION
For the foregoing reasons, the United States requests that the Court deny fhe relief
requested in fhe Defi^nse Motions spedfically fhe request fopredude the prosecution from
raising or didfing any evidenceoftheenemy'sreceipt ofintelligence and the request to
interview Mr.John Doe prior to fhe Court'sconsideration ofthe Govemment Motion and
issuance ofanyfindingspursuant to the ^^^^^^^^ proceeding.

ALEXANDER VONELTEN
CPT,JA
Assistant Trial Counsd
Icertifythatlserved or caused to be servedatme copy ofthe above on Mr. David Coombs,
Civilian Defense Counse1,via electronic mail onl4Febmary 2013.

ALEXANDER Vd^ ELTEN
CPT,JA
AssistantTrial Counsel

34255

UNITEDSTATESOF AMERICA
V.

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

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DEFENSE RESPONSE TO
GOVERNMENT MOTION
TO CLOSE THE COURTROOM
FOR SPECIFIED TESTIMONY
DATED 31 JANUARY 2013
14 FEBRUARY 2013

RELIEF SOUGHT
1. The Defense requests this Court deny, in part, the Govemment's request for closure of the
courfroom for specified testimony.
LEGALAUTHORITY
2. Rule for Courts-Martial (RCM) 806(2) establishes that court "shall be open to the public
unless (1) there is a substantial probability that an oveniding interest vnll be prejudiced if the
proceedings remain open; (2) closure is no broader than necessary to proted the overriding
interest; (3) reasonable altematives to closure were considered and found inadequate; and (4) the
railitary judge makes case-specificfindingsonthe record justifying closure."
3. Under the Rule, the militaryjudge can order the proceedings closed if shefirstfindsa
substantial probability that an overriding interest will be prejudiced by keeping the proceedings
open. RCM 806(b)(2)(l). In the case of classified information, the overriding interest is the
prevention ofharm to the national security. The Rule requires that the militaryjudge use the
Grunden scalpel by ensuring that the "closure is no broader than necessary to protect the
oveniding interest." M at (b)(2X2); UnitedStatesv. Grunden, 2 M . I 116 (C.M.A. 1977). RCM
806(b)(2) requires the militaryjudge to place her case-specificfindingjustifying closure on the
record for later review on appeal.
ARGUMENT
4. In order to ensure that "closure is no broader than necessary" the militaryjudgeraustconsider
reasonable altemative to closure. Only once the militaryjudge determines all reasonable
altematives to closure are inadequate, should the militaryjudge order the proceedings closed.
5. The altematives that are available under Military Rule ofEvidence (MRE) 505(i) would be
viable alternatives to closing the courtroom. However, they are not the only alternatives
available to dosing the courtroom in the event that the MRE 505(i) evidentiary hearing
determines that there is no adequate redaction, summary, or substitution for the actual dassified
infonnation being presented to the members. There are a number of alternatives to testimony for
infroducing the actual classified information at trial that should be considered before the military
judge decides to dose the courtroom,
APPELLATE EXHIBIT H ^ j '
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34256

6 The Govemraent has discussed some ofthose possible altematives such as the "Silent
Witness" rule, the use ofcode words, orthe useof special terras. However, altematives to
closure are bound only hyone'siraagination ItistheDe^nse'spositionthaL^itiirespectto
many ofthe witnesses at issue, the y^tness'sopinion ortestimony ahoutaparticular piece of
testimonywould notrequire closure. Any interest fhe Govemraent may have would hem
segregatingawitness'sopinion ortestimony about an issuefrorathe issue itself. That is, the
Governraent may have an interest in ensuringthe puhlicdoes not knowthataparticulartype of
damage is connected toacertain piece ofleaked information. Likewise, the Govemraent raay
have aninterest in avoiding the association ofhow an issue is related to the national security.
However, to the extentthatadisconned can be established between an issue orpiece of
information andawifness'stestiraony about that issue orpiece ofinfbrmation, closure is not
necessaty. As such, the Defense envisions that various hybrids ofthe Silent Witness Rule could
be employed.
7. For eo^araple, say WitnessAis going to testify that the release ofX information causedY
damage. Any altemative that allows forthe discussion of Y(thedaraage)without associating it
withXinfbrraation would notrequire closure. IfistheDefense'sposition thatthe articulation of
atype of daraage on the record would only he dassified ifit were associated wifhapai^cular
fad, issue or piece ofinfbrmation.
8. In the above exaraple,WitnessAcou1dhaveaprepared list ofissues/fads/pieces of
infbrmation. Counsel could indicate that we are now going to talk aboutXand then question the
witness about X. WitnessAwould befreeto testify aboutXbecausethehtestiraony would only
he associated wifhXfbrthe record; the public would knowthe testiraony, but have no idea what
thattestiraony related fo.
9. Likewise, assuraeWitnessBis going to testify that^piece oflnforraation is related to the
nationalsecurity An articulation thathis related to the national security because ofE,F,andG
would not be dassified so long as the explanation was not associated with^ Again,WitnessB
could easily he provided withalist oftopics. All necessary parties would have the list oftopics
and could easily direct WttnessBto issued. In many cases,WitnessBcould then falk freely
about that issue^without necessitating closure ofthe Court.
10. Other variations on the "Silent Witness" mle are easily contemplated. TheGovernment
could type up the classified testiraony which they plan to eliciL The witness could then adopt
that docuraent as an accurate refiection ofwhat the witness'stestunony would be uiadosed
hearing Then, the docuraent could be discussed in open court, y^th both Govemraent and
Defense counsel referencing the documenL Counsel could tab orraarkspecific portions so that
the fad-finder, court reporter and counsd ah knowwhatawitness is referencing during his/her
testiraony. Then, the witness would befreeto discuss that particular topic.
11. The Defensecontends that either offhe above scenarios is plausible withrespedtoraany,if
not all, ofthe y^tnesses the Govemraent has earraarked fbr closure. No doubt, fhe Government
knows what issues or pieces oflnforraation they plan to discuss with theirwitnesses. Indeed, in
many cases they have alreadyraadesuch associations as pait oftheir 505 filings. Irapleraenting

34257

either procedure discussed above that createsadisconnect between the issueand the witiiesses
testiraony would allow fbrthecourttoreraain open.
12. The GovemraenL hi its request fbr closure, has essentially stated that the dassified
inforraation needs to be proteded and that theCourt should close fhe hearing because it does not
see how altematives could work. Closragthe courtroora onthe condusoty basis provided bythe
Govemraent alone would he enor. Thereraustbeaconsideration of either altematives to the
infbrmation or alternative methods ofpresentation in an open session thatwould not disclose the
classifiedinfbrmation. Only by considering alternatives can the Court makefindingsabout why
the proposed altematives aie either adequate orinadequatefbruse attrial. In this instance, the
Govemraent has deraonsttafed that it y^ll ehcit dassified infbrmation, but if has not
demonsfrated why altematives to closure are not adequate.
13. The Defense assertstiiatreasonablealtemativessuch asahybrid "Silent Witness"
subraission, orthe use of summaries or substitutions would be adequate fbruse^triaL Thisis
especially tme given thetrier of fad will be therailitaryjudge. The Govermnent has failed to
deraonstrate why alternative methods ofpresenting the evidence without disclosing its dassified
suhstancearenotavailable As such, while alternatives should he employed, the Govertiraent's
request to dose the hearings should be denied.
14. Additionally, fhe Govemraent is dismissive of declassification. In supportoftheir dismissal
ofdedassification the Govemraent points to the fact thatthe dassified infbrraatiou in this case is
"recent." It was nottoo long ago thatthe Goyernraentraadepassingreferences to infrorraation
that was so daraaging thaf theywere not sure theywould even he able to use the infbrraafion at
trial. As tirae passed it hecarae clearthat the Goyemment was refening to information seized
duringthe raid on UBL'scorapound and, indeed, they expressed their intention to introduce such
evidence at trial. Lo and behold, despite its recency,that infbrmation has been declassified
Inforraation seized during the raid at Abbottabad israorerecentthan any charged docuraent in
this case, and it has heen declassified. C1ear1y,apieceofinfbrmation'srecencyisnota
dispositive factorwhen considering declassification. As such, the Govemraent should he
required to lookraoredoselyat declassification befbre dismissing it out ofhand.
CONCLUSION
15. As indicated above, the Defense respectfully requests the Court deny,inparL the
Govemment'srequests forjudicial notice.

JOSHUAJTOOMAN
CPT,JA
Defense Counsel

34258

Icertifythatlserved or caused to he servedati^ecopy oftiie above onMAJ Ashden
Fein, via elecfronic mail, on 14Eebruary 2013.

JO^^AJTOOMAN
CPT,JA
Defense Counsel

34259

Appellate Lxhihit ^90
20 pages
classified
^^SLCRLT^^
ordered sealed f^rReason2
Military ^udge^s Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34260

Appellate Lxhihit ^91
15pages
classified
^^SLCRLT^^
ordered sealed f^rReason2
Military .ludge^s Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34261

REQUEST FOR TRIAL BEFORE MILITARY JUDGE ALONE
(Article 16, UCMJ)
UNITED STATES
V.
PFC Bradlev E. Manning
1. ACCUSED

I have been informed that COL Denise R. Lind is the militaryjudge detailed to the court-martial to which
the charges and specifications pending against me have been referred for trial. After consulting with my
defense counsel, I hereby request that the court be composed of the militaryjudge alone. I make this
request with ftill knowledge of my right to be tried by a court-martial composed of commissioned officers
and, i f l so request, enlisted personnel.
a. TYPED NAME (Last, First, Middle Initial)

MANNING, Bradley E.
2.

b. RANK

c. SIGNATURE

d. DATE SIGNED

J3 FEB 2x>iy

PFC

DEFENSE COUNSEL

Prior to signing of the foregoing request, 1 fully advised the above accused ofhis right to trial before a
court-martial composed of commissioned officers and of his/her right to have such court consist of at least
one-third enlisted members not ofhis unit, upon his request.

a.

TYPED NAME (Last, First, Middle Initial)
SIGNED

COOMBS, David E.
1.

d. DATE

b. RANK

nfc^zoii

CIV

TRIAL COUNSEL

Argument is (not) requested.
a.

TYPED NAME (Last, First, Middle Initial)
SIGNED

FEIN, Ashden
2.

d. DATE

b. RANK

2(ofehl3

MAJ

MILITARY JUDGE

The foregoing request for trial before me alone is hereby: (X one)
a. TYPED NAME (Last, First, Middle Initial)
SIGNED

LIND, Denise R.

b. RANK

COL

I — I Approved

c. SIGNATURE

I—I Disapproved'
d. DATE

^(^/Y/f

^

'when request is disapproved, the basis for denial must be put on the record. See MCM, 2012, RCM 903(c).

DD Form 722, OCT 84

APPELLATE EXHIBIT 4 4 2
PAGE REFERENCED:
PAGE
OF
PAGES

34262

INTHEUNITEDSTATESARMY
FIRST JUDICIALCIRCUIT

UNITEDSTATES
P R E T R I A L P U B L I C I T V ORDER
TO: COURT M A R T I A L
MEMBERS
MANNING,BradleyE.,PFC
HHC,U.S.ArmyGarrison
JointBaseMyerHendersonHall
F o r t M y e r , Virginia 22211

26February2013

TO: All prospective court members for the above captioned court-martiaL
1. This case has been refened to trial by general court-raartial, and is scheduled fbrttialon3June 2013
until coraplete. The trial is expected to last approxiraatdy 12 weeks. You will he contacted bythe
Office of the Staffjudge Advocate, U.S.Army Military Disttict ofWashington, ifyou are detailed to bea
meraber forthis case. This order is being provided to all persons who are presently identifiable as
potential court members.
2. The Courtfindsthat there has heen prettial publicity in the above-captioned court-raartial to an extent
that the fbllowing ORDER is necessary and proper in aid ofitsjurisdiction and in the interests ofthe fair
administration ofjustice and due process oflaw fbr all parties.
3. All prospective court members are ordered as Ibllows:
a. Due to prior publicity,and the probability fbr raore publicity in the news raedia(newspapers,
raagazines, radio coverage, television coverage, intemet news and editorial sources, including the "Early
Bird,"eraailetc.)about this case, you are ORDERED not to listen to, look aLorread any accounts of
any incident involving the above-naraed accused or conceming allegations of coraproraise ofclassified
inforraation, orthe ongoing issues involving the publication ofalleged classified inforraation by
WikiLeaks. You may not consult any source,written or otherwise, involving the alleged incidenL
Should anyone attempt to discuss the case with you, ortalk to you about yourpotential or actual
participation asacourt-martial member in this case, other than in open court, you must immediately
forbid them frora doing so, and then you must report the occunence to me in court at your first
opportunity.
b. Atrial by court-martial indudes the right of the accused to he tried byacourt composed of
members. Court members fulfill duties similar to those of civilian jurors. Asaprospective court member
of the court-raartial that will try this case, it will be your dutyto deterraine the guih or innocence ofthe
accused as to the charges upon which he is anaigned. Underthe law,the accused is presumed to he
innocent ofthe charges against hira. Neitherthe factthat charges have been prefened against the accused
nor the fact that charges have been refened toacourt-raartial fbr ttial wanants any inference of guilL
Your deterraination ofthe guih or innocence ofthe accused must be based solely upon the evidence and
ray instructions in the case as presented in open court. So, youraustnot read or otherwise expose
yoursdfto inforraation about the facts or issues in this casefrorasources outside ofthe courtroora. Asa
potential court meraber, you must keep an open mind and not form or express any opinion on the case

APPELLATEEXHIBIT^^
PAGEREFERENCED:^^
PAGE^OF^FAGES

34263

until all the evidence and the instmctions on the applicable law are presented to you. Youraustnot
entertain orreachaconclusion as to the guih or innocence ofthe accused until after all the evidence and
instructions have been received in open court and you are in your closed session deliberations with other
raerabers.
c. The accused and the govemraent are each entitled toapanel of courtraeraberswho approach
the case with an open raind and who are able to keep that open mind until they deliberate on the verdicL
You should be as free as humanly possible frora any preconceived ideas about the outcome ofthis case.
Therefbre, you are ORDERED thaL from the date of receipt ofthis order until the trial is concluded(or
until you are specifically advised by this court that this order no longer applies to you), you will not
discuss the facts of this case, or any publicity conceming this case,with anyone, railitary or civilian. You
may not discuss your prospective detailing to this court-raartial with anyone, other than as required to
inform your superiors ofyour duty status.
d. In the eventyou have already read, seen, or listened to any raedia accounts, publicity or other
accounts conceming this case, or you inadvertently do so befbre the conclusion ofthis court-raartial, you
are advised that you havealegal duty todisclose that matter to rae when asked to do so in open court.
Also, in the event that you have already discussed(or listened to anyone else discuss)anyraatterrelated
to this case, or inadvertently do so befbre the conclusion ofthe court-martial, you have the duty to
disclose that to rae in open court. You are advised that it is not an adverse reflection on you to be excused
frora duty asacourtraember; however, asamember of the military,you are required to followthe
instructions in this order and not intentionally do anything contrary to the requireraents ofthis order.
4. This order is not intended to limit orrestrict any official purpose for reraaininginforraed regarding
raatters related to this case or involving the publication ofalleged classified inforraation by WikiLeaks. I f
you are presently assigned toaposition that requires your ongoing access to such information and you
cannot reasonably remove yourselffrom that portion ofyour duties without adversely impacting you or
your mission, then you shall obtainaraeraorandura frora your supervisor docuraenting your continued
requireraent fbr access. Provide thatraeraorandurato the Offtce ofthe StafTJudge Advocate, U.S.Array
Military District ofWashington and you are authorized continued access to this inforraation forthe
liraited purpose ofperfbrraing your official railitary duties.
5. Trial counsel shall causeacopy ofthis orderto be served through the Office ofthe Staffjudge
Advocate, Military District ofWashington, on each prospective priraary and altemateraeraherofthe
court. Ifthe convening authority selects any additional priraaty or altemateraeraherafterthe date ofthis
order, the trial counsd shall iraraediately causeacopy of this orderto be served on the new priraaty or
altemateraeraher.Trial counsel shall obtain and raaintainawritten receipt fbr such service, usingthe
form provided along with this order, showing the date and time this order was served on each prospective
meraber. Acopy of the service shall be given to the defense. Trial counsel will attach the receipts fbr
service to the record as an appellate exhibiL
ORDERED, thisthe 26th day ofFebmary 2013

DENISERLIND
COL,JA
ChiefJudge, 1st Judicial Circuit

34264

2013

MEMORANDUMTHRU Staffjudge Advocafe,USAnny Military District ofWashington,
210ASfreeLFortLesleyJ McNair,DC 20319 5013
FOR Chief Judge, 1st Judicial Circuit, U.S.Army Legal Services Agency(frial Judiciary), 9275
GunstonRoad,FortBelyoir,VA 22060
SUBJECT: Acknowledgement ofReceipf of Court Order^United Statesv.PFC Bradley
Marming

1. At
^hours,on
2013,Ireceivedacopyof
fhe Court Order entitled "Pretrial Publicity Orderto Court-Martial, dated
Febmary 2013.
2. I ,
Pretrial Publicity Court Order.

Signed:
Printed Name:
Rank:

,acknowledge thatlhave read and understood fhe



0



IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
RULING: SPEEDY TRIAL

V.

MANNING, Bradley E., PFC

U.S. Army,

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

DATED: 26 February 2013



Defense moved to dismiss all charges and their speci?cations for violation of the Accused's
right to a speedy trial under Article 10, UCMJ, RCM 707, and the Sixth Amendment to the Constitution
of the United States. The Court has considered the ?lings by the parties, the witnesses and evidence
presented, and oral argument. The Court ?nds and rules as follows:

Findings of Fact General

The Court adopts the stipulated chronology submitted by the parties with the modi?cations and
additional chronology entries at attachment (1) to this ruling.

The Court further adopts the ?ndings of fact and conclusions of law from the Article 13 Ruling (AE
461).

The Court takes judicial notice of the appellate exhibits and the case schedules that have been ?led: 25
April 2012 schedule (AE 30 August 2012 schedule (AE 18 October 2012
schedule (AE 8 November 2012 schedule (AE 20 December 2012 schedule (AE
and 9 January 2013 schedule (AE Each trial schedule was coordinated between
the Court and the parties and implemented with the consent of both parties.

RCM 707 Timeline

The Accused was restrained for RCM 707 analysis on 27 May 2010. Charges were referred to trial on
3 February 2012. The Court received the referred charges on 3 February 2012. The Accused was
arraigned on 23 February 2012. The period of time between 28 May 2010 and 23 February 2012 is 637

days.

The parties stipulate that the following 84 days count against the RCM 707 120 day speedy trial clock:

28 May 2010 11 July 2010 (45 days)

16 December 2011 23 December 2011 (8 days)
3 January 2012 6 January 2012 (4 days)

9 January 2012 3 February 2012 (26 days)

23 February 2012 (1 day)

1 APPELLATE EXHIBIT LI 351
PAGE REFERENCED:
PAGE PAGES



. . 34266

Defense concedes the following 220 days were properly excluded:

11 August 2010 3 March 2011 (205 days)

8 - 22 February 2012 (15 days) -- In its motion, the Defense included the period between 4-22 February
2012 to count towards the RCM 707 120 day clock. At oral argument, Defense conceded the period
between the date of the telephonic RCM 802 conference between the parties and the Court to set the
arraignment (8 Feb 12) until the day prior to arraignment (22 February 2012) are excludable delay with
the Defense consent.

The remaining 333 days includes the following disputed time periods:

12 July 10 August 2010 (30 days)

4 March 2011 15 December 2011 (287 days)

24 December 2011 2 January 2012 (10 days); 7-8 January 2012 (2 days)
4 February 7 February 2012 (4 days)

RCM 707 The Law

RCM 707(a) requires in relevant part that the Accused to be brought to trial within 120 days after the
imposition of restraint under RCM ?Brought to trial? means the date of arraigmnent.
The date of imposition of restraint does not count; however, the date of arraignment does count.

Before a case is referred, requests for pretrial delay, together with supporting reasons are submitted to
the convening authority for decision. After referral, requests for delay are submitted to the military
judge for resolution. All pretrial delay approved by a military judge or the convening authority is
excluded from the 120 day period. A convening authority may delegate to an Article 32 investigating
of?cer (IO) authority to grant excludable delay. The decision to grant or deny excludable delay is
within the sole discretion of the convening authority, military judge, or Article 32 IO with delegated
authority to grant delay. The discussion to RCM 707(b)(1) proposes examples of appropriate reasons
to grant a delay including: the need for time to enable counsel to prepare for trial in complex cases;
time to allow examination into the mental capacity of the accused; time to complete other proceedings
related to the case, time requested by the defense, time to secure the availability of the accused,
witnesses, or other evidence; time to obtain appropriate security clearances for access to classified
information or time to declassify evidence or other good cause. The discussion further provides that
pretrial delays should not be granted ex parte, and where practicable, the decision granting the delay,
together with supporting reasons and dates covering the delay should be reduced to writing. Pretrial
delay may be excluded after the delay occurs. United States v. Thompson, 46 M.J. 472 (C.A.A.F.
1997).

Approved pretrial delays by a convening authority, Article 32 IO with delegated authority, or a military
judge are excluded from the 120 day time unless the person who granted the delay abused his or her
discretion. US. v. Lazauskas, 62 M.J. 39, 41 (C.A.A.F. 2005). The authority granting the delay must
make an independent determination as to whether there is good cause for a pretrial delay and grant the
delay for only so long as necessary under the circumstances. Thompson, at 475. The issue is not which
party is responsible for the delay but whether the decision to grant it was an abuse of discretion. There
must be a causal connection between the cited justi?cation or unusual event and the delay. Normal,
recurring events which happen in almost every trial are not excludable. United States v. Duncan, 34
M.J. 1232, 1243 (A.C.M.R. 1992), citing United States v. Longhofer, 29 M.J. 22, 27 (C.M.A. 1989). A

2



?blanket? exclusion of time not tied to a speci?c event or events is an abuse of discretion. United
States v. Rowe, 2003 WL 828986 (A.F. Ct. Crim. App. 2003).

?An Accused cannot be responsible for or agreeable to delay and later demand dismissal for violation
of speedy trial for that same delay. United States v. King, 30 M.J. 59 (C.M.A. 1990); US. v.
MCCullough, 60 M.J. 580 Crim. App. 2004).

The Rules of Practice Before Army Courts?Martial, 15 September 2009, in effect on 23 February 2012
when the Accused was arraigned, provide that any period of delay from the military judge?s receipt of
referred charges until arraignment is considered pretrial delay approved by the judge unless the judge
speci?es to the contrary. Rule 1.1.

RCM 707 - Findings of Fact and Conclusions of Law Disputed Time Periods
1. 12 July 2010 to 10 August 2010 (30 days)
Findings of Fact:

The accused was placed in pretrial con?nement at FOB Hammer, Iraq on 29 May 2010 and transferred
to the Theatre Field Con?nement Facility (TFCF), Kuwait on 31 May 2010.

In June 2010, the Accused was growing increasingly mentally unstable culminating in the 30 June 2010
incident where the Accused was placed in Maximum Custody/Administrative Segregation 1:1 suicide
watch. On 4 July 2010, the CDR, Third ordered the Accused transferred from TFCF
when an appropriate facility with adequate mental health resources would accept him.

On 11 July 2010, the Defense requested an RCM 706 inquiry into the mental capacity or mental
responsibility of the Accused and a delay of the Article 32 investigation then scheduled to be held on 14
July 2010. On 11 July 2010, the Article 32 Investigating Of?cer (IO) denied the RCM 706 request. On
12 July 2010, the Defense requested delay of the Article 32 investigation until the RCM 706 board was
complete and until the Accused could resolve issues relating to retaining civilian defense counsel
(CDC) and Defense expert witnesses. On 12 July 2010, the Iraq Special Court Martial Convening
Authority granted the Defense request for delay until 16 August 2010.

From 12-21 July 2010, Iraq TC were coordinating the transfer of the Accused out of the deployment
theatre and coordinating up the chain of command to locate potential RCM 706 board members.
Ultimately, on 28 July 2010, before the RCM 706 board could be appointed, jurisdiction of the case
was transferred to the Military District of Washington (MDW) and the Accused was transferred to
Marine Corps Brig Quantico (MCBQ).

On 25 August 2010, Mr. Coombs noti?ed the Government that the Accused retained him as CDC.

Conclusions of Law:

The 12 July 2010 decision by the Iraq to grant the Defense request for delay until 16 August
2010 was not an abuse of discretion. The delay was directly related to the need to transfer the Accused
out of the deployed theatre to a more established con?nement facility where adequate mental health
assets were available. Defense further requested the delay to allow the Accused time to make decisions

3





34268

about retaining civilian counsel. His decision was not made and communicated to the Government
until 25 August 2010. The time is excludible delay under RCM 707(c).

2. 24 December 2011 to 2 January 2012; 7 January 2012 to 8 January 2012 (10 days; 2 days)
Findings of Fact:

1. A military judge from the U.S. army reserves was appointed as the 10 to conduct the Article 32
investigation. The Article 32 investigation was conducted from 16 December 2011 through 22
December 2011. During that time, the 10 was on active duty (AD) orders from 12 December to 23
December 2011 and from 3 January to 6 January 2012. Other ?active status duty? (for pay) was
perfonned from 9 January 2012 to 11 January 2012. In the 16 November 2011 order to restart the
Article 32,'the gave the 10 a suspense of 60 days on or about 16 January 2012 - to
complete the Article 32 investigation.

2. During this period the IQ excused two periods of delay pursuant to RCM 707(c) at the request of the
Government. The ?rst period of delay ran from 24 December 2011 through 2 January 2012. The 10
testi?ed that he excluded the periods from 24 December through 26 December 2011 and 31 December
2011 through 2 January 2012 because they were holiday periods and appropriate personnel were not
available to monitor review of classi?ed information in the case. However, the 10 testi?ed that the
period of delay from 27 to 30 December 2011 was attributable to civilian work con?icts rather than
con?icts with federal holidays.

3. The second period of delay excluded January 2012. For that period of delay,
the IO testi?ed that he did not perform work because he took his son to a swim meet in

4. The 10 did not request input from the Defense prior to granting the delays.
Conclusions of Law:

1. The periods of excluded delay occurred during holidays where of?ces containing classi?ed evidence
required for review as part of the investigation were closed (or appropriate personnel at those offices
necessary for review were unavailable) and are reasonable delay under RCM 707(c) and applicable
case law. These periods include the delay from 24 26 December 2011 and the period from 31
December 2011 2 January 2012. These six days were properly excluded under RCM 707(c).

2. The periods of delay from 27 30 December 2012 and 7 - 8 January 2012, however, do not meet the
?good cause? requirement and constitute an abuse of discretion. In both cases, the delays were based
on purely personal circumstances civilian work for the ?rst period and personal travel for the second
period rather than inability to access necessary facilities or evidence. The determinations were
not made in a manner to permit the Defense to timely oppose the grant of delay.l Accordingly, these
six days were improperly excluded from the 120-day speedy trial period.

1 The 10 testi?ed in an Article 39a session that he drafted a memorandum regarding excludable delay at the Govemment?s

request and did not consider the Defense position as to whether or not the time should be excluded. In his excludable
delay memorandum dated 11 January 2012, the 10 cited as his sole reason for exclusion of time ?federal holidays or
weekend days.?

- 0 0

3. 4 February 2012 to 7 February 2012 (4 days)

. Findings of Fact:

This case was referred on 3 February 2012. The Court received the referral on 3 February 2012. Also
on 3 February 2012, the Government sent the Court its Electronic Docket Noti?cation (EDN)
requesting immediate arraignment but no sooner than 10 days after the Court sets arraignment date to
allow for implementation of the OPORD to coordinate the Accused?s travel, provide adequate security
for the Accused, the parties, and the Court, and to ?nalize preparation of court-house infrastructure to
accommodate the public. On 4 February 2012, the Court sent an email to the parties advising them to
confer and select 6, 9, or 10 February 2012 for a telephonic RCM 802 conference to set an arraignment
date. The Court further advised the parties that the Court was available for arraignment 14-17 or 22-25
February 2012. On 4 February 2012, the Court received an email from Mr. Coombs requesting
arraignment either 24 or 25 February 2012. On 6 February 2012, the Court received the Defense EDN
advising that DC were not available for arraignment 13-17 February 2012 and requesting arraignment
23 or 24 February 2012. Also on 6 February 2012, the Court received an email from the Government
advising that the parties agreed to arraignment on 23 February 2012 at 1300. The Court docketed the
23 February 2012 arraignment on 6 February 2012.

Conclusions of Law:

The period between 4-7 February 2012 is excludable delay under RCM 707(0) by Rule 1.1 of The
Rules of Practice Before Army Courts-Martial, 5 September 2009, in effect on 23 February 2012.
. This period also qualifies as excludable delay with the concurrence of the Defense.

4. 4 March 2011 to 15 December 2011 (287 days)
A. RCM 706 Board Requested Delay 4 March 22 April 2011 (50 days)
Findings of Fact:
On 11 August 2010 the Defense requested a delay of the Article 32 investigation until completion of the
sanity board. On 12 August 2010 the approved the request until the RCM 706 board was

complete.

Starting on 25 August 2010, the Defense requested a series of delays of the RCM 706 board that were
approved by the Convening Authority. The PCR was conducted. TS-SCI security clearances were

obtained. Defense expert consultants were appointed.

The Defense does not contest the time period between 11 August 2010 and 3 March 2011 as excludable
delay.

The ordered the RCM 706 board to resume on 3 February 2011 with a four week suspense
date.

On 7 February 2011, civilian defense counsel emailed the board advising them that the suspense date

. was ?aspirational? and requesting the board to take the time necessary to conduct a thorough and

complete examination and that any request for extension of time would undoubtedly be granted.

5



34270

The court agrees that a 4-week suspense for a routine RCM 706 board is aspirational. The RCM 706
board in this case had 3 members, was required to have TS-SCI clearances, was required to conduct
additional neurological tests, and was required to interview the Accused in a SCIF and during a
weekend for the Accused?s privacy and security.

Between 9 11 February 2011, the RCM 706 board proposed a schedule of an unclassi?ed interview
with the Accused on 16 February 2011 followed by testing on 17 February 2011 and the classi?ed
interview in a SCIF on 1 March 2011.

On 21 February 2011, Civilian Defense Counsel (CDC) requested the Government to arrange for a
SCIF to be available for Defense to interview the Accused before the RCM 706 board interview. CDC
requested 14 days notice to purchase reasonably priced airline tickets.

On 25 February 2011, CDC advised the Government that the earliest the Defense would be available to
meet with the Accused was the week of 7 March 2011. This was after the 4 March 2011 RCM 706

board suspense date.

From 25 February 2011 until 3 March 2011, the Government coordinated with INSCOM to make a
SCIF available to the Defense and to the RCM 706 board. The RCM 706 board wanted to interview
the accused on 11 March 2011 (a Friday). The Government arranged for interviews of the Accused at
the SCIF to be on Saturdays when there would be few if any workers in the area.

On 5 March 2011, CDC requested from the Government that his meeting with the Accused take place
on 11-12 March 2011 with alternative dates of 25-26 March 2011. The Government advised CDC that
the Government had to con?rm with the security detail and would know by 7 March 2011 (a Monday).

On 7 March 2011, CDC requested that the Defense interview with the Accused take place 25-26 March
2011. Meanwhile the RCM 706 board coordinated their classi?ed interview with the Accused and
proposed that it take place on 26 March 2011. Both the Defense and RCM 706 board interview
required an entire day.

On 14 March 2011, the Government proposed 2 April 2011 as an alternate date for the RCM 706 board
interview. All board members were available to conduct the interview of the Accused on 9 April 2011.

The RCM 706 board requested an extension on 14 March 2011 with a proposed suspense of 29 April
2011, requesting 3 weeks to ?nalize their report after the 9 April 2011 interview with the Accused. The
approved an extension but only until 16 April 2011. The board advised the Government that
the report could be ?nished by 16 April 2011 but it would be rushed.

The RCM 706 board was 98% complete on 15 April 2011, however, the board felt it necessary to meet
and thoroughly review the results rather than ?rush? the report to conclusion. On 15 April 2011, the
board again requested an extension until 22 April 2011. The approved this extension. The
board completed its report on 22 April 2011.

Conclusions of Law
The did not abuse his discretion in granting the extensions or in excluding either the 14
March 2011 or the 15 April 2011 requests by the RCM 706 board for delay or excluding the delay

6

. 0 0 34271

under RCM 707(c). The initial suspense to the board was extremely short. The board had legitimate
reasons to request each extension. Defense counsel advised the board that the Defense was more
interested in a thorough RCM 706 board than a rush to complete the end product. The RCM 706
interview of the Accused was delayed to accommodate the Defense request to interview the Accused
before the board did. The length of each delay was reasonable. The period of delay from 4 March
2011 22 April 2011 was properly excluded by the

B. Government Requested Delays
Findings of Fact:

Military authorities were not aware that the Accused was allegedly involved in any disclosures of
classi?ed information to WikiLeaks until Adrian Lamo?s 25 May 2010 report. Thus, the CID
investigation began at that time in a combat zone.

When the Iraq Trial Counsel team preferred the original charges on 5 July 2010, the investigation was
in its infancy. The Accused was charged with four speci?cations of violating a lawful general order in
violation of Article 92, UCMJ, one speci?cation in violation of 18 U.S.C. Section 793(e), three
speci?cations in violation of 18 U.S.C. Section 1030(a)(1) and ?ve speci?cations of violating 18,
U.S.C. Section 1030(a)(2). These eight speci?cations were also in violation of Article 134, UCMJ.
The Government was not aware of the scope and breadth of the alleged misconduct by the Accused
when he was originally charged.

The originally charged offenses involved a video of a military operation ?lmed near Baghdad, Iraq on
or about 12 July 2007, more than 50 classi?ed DOS cables, a classi?ed Microsoft PowerPoint
presentation, a classi?ed DOS cable entitled ?Reykjavik 13?, and more than 150 classi?ed DOS
cables.

In August 2010, the Government initially contacted DOS regarding classi?ed review of the originally
charged cables. In October 2010, the Government contacted CENTCOM regarding classi?cation
reviews of the originally charged documents. On 18 October 2010, the Government received the OCA
review of the Apache video.

On 26 August 2010, the Defense requested the Government provide original classi?cation reviews to
include (1) the classi?cation level of the information alleged to have been disclosed by the Accused
when it was subject to compromise; (2) a determination whether another command requires review of
the information; and (3) the general description of the impact of disclosure on affected operations. In
its subsequent discovery requests, the Defense requested the CCIU forensic reports and other evidence
the Government would use at trial.

During Fall 2010, while the PSR was ongoing and the RCM 706 board was on hold, investigative
agencies were continuing to investigate the case, WikiLeaks made rolling disclosures of classi?ed
information allegedly provided by the Accused, and the Government was coordinating with DOJ and
consulting Code 30, OTJAG, U.S. Navy Primer on Prosecuting, Defending, and Adjudicating Cases
involving classi?ed information. On or about 3 November 2010, CID conducted a second search of the
Accused?s aunt?s house and discovered additional digital media: (1) hard disk drive, (3) SD memory
cards, (1) smart media card; (14) CD-R discs, (2) CD-RW discs, (1) USB memory card. As the
investigation matured and the Government became more fully informed of the potential scope of the

7

4
(DJ .

misconduct alleged to have been committed by the Accused, the Government coordinated with DOS
and other equity holders of the information in the current charge sheet to receive approval to charge
each equity holder?s classi?ed information. After receiving all the required approvals, the Government
preferred the charges currently before the Court on 1 March 2011.

34272

The Government sent out the following prudential search, preservation, and review requests:

30 September 2010 - preservation request to 2/ 10th Mountain Division

25 May 2011 - search requests to OGA1, OGA2, ODNI, and ONCIX.

6 June 2011 search request to

14 June 2011 search request to DIA, DOS, OGA2, and ODNI

27-28 June 2011 search request to FBI, DOJ, and DISA

On or about 21 July 2011 tasking responding to search request to

16 August 2011 search request to DOJ

6 October 2011 Defense requested Locate and Preserve Evidence request

6 October 2011 request to review damage assessments to DOS, FBI, ODNI, OGA1 and OGA2

The agencies receiving the prudential search requests (PSR) were creating records documenting
damage from the WikiLeaks releases and mitigation efforts taken by the agency. The Government sent
the PSRS to preserve potential discoverable information created after the accused?s alleged misconduct
rather than to preserve information or evidence created at or before the alleged misconduct by the
Accused.

On 30 November 2010, the prosecution submitted a written request to DOD for a classi?cation review

of evidence it intended to use. On 18 March 2011, the Government submitted written requests to the
following organizations for classi?cation reviews of the records charged in the 1 March 2011 preferred
charge sheet: CENTCOM, DOS, SOUTHCOM, DISA, CYBERCOM, ODNI, INSCOM, and
The 18 March 2011 requests had a suspense date of 31 March 2011. The Government sent
follow up written requests to each of these entities as set forth in the attached chronology. Each of the
follow up requests had two week suspense dates, emphasized urgency, and explained the rights of the
Accused to a speedy trial. Neither the prosecution team nor the had tasking authority over
the Original Classi?cation Authority (OCA) entities. 2

A classi?cation review requires a manual, line by line, review of a document and its classi?cation
markings to determine if a document has been properly classi?ed, and is properly marked consistent
with a source of classi?cation or an OCA decision. Further, classi?cation reviews require a
determination of each particular word or phrase, in an effort to redact such words and phrases to create
an unclassi?ed document. Extensive inter-agency coordination is required to complete classi?cation
reviews. One document can have multiple sources of classi?cation potentially from sources not under
the authority of the organizational OCA. Each OCA with an equity in the classi?ed information must
review it. There is no correlation between the complexity of the review and the number of pages of the
?nal OCA review product.

2 It Government requested completion of the classi?cation reviews multiple times. The government sent memoranda to

the OCAs on 18 March 2011, 28 July 2011, 4 August 2011, 7 September 2011, and 6 October 2011, each time seeking
completion of the classi?cation reviews with a short suspense. In these memoranda, the government reminded the
OCAs of their obligations under Article 10, UCMJ, and the Sixth Amendment, and noted ?Any delay by your department
to comply with this firm deadline may severely jeopardize the prosecution.?

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The majority of the evidence the Government intended to present at trial was classi?ed or unclassi?ed
but sensitive. The Government?s goal was obtain the OCA reviews and to obtain authority to disclose
the charged documents, classi?cation reviews, and CCIU forensic reports to the Defense to ensure that
the Defense had all of the charged information and all of the evidence the Government intended to use
in its case in chief at trial before the Article 32 investigation. This required contacting each of the
potentially multiple equity holders of the classi?ed information to receive approval to disclose the
information. The Government believed that the OCA reviews were necessary to prove that the
information at issue was classi?ed, to ensure that the information was properly handled at trial, and to
prove that there was an overriding interest in protecting against disclosure of classi?ed information to
justify closing portions of the Article 32 investigation. The Government believed that disclosure of the
forensic reports to the defense prior to the Article 32 was necessary to show the Government theory of
the case and that if the Article 32 occurred without the evidence linking the Accused to the charged
misconduct the Government would likely fail in its burden of proof and open itself to challenge that the
Article 32 was defective.

On 16 December 2010, the Secretary of the Army ordered a 15-6 investigation. On 14 February 2011,
the SecArmy 15-6 was completed. On or about 15 March 2011, the Government submitted a request to
review it, received approval to review it on 21 March 2011 and reviewed it from March 30 May
2011. On 17 June 2011 the Government received authority to disclose the SecArmy 15-6 investigation
to the Defense upon acknowledged receipt of protective order. On or about 12 July 2012,
the Government produced the investigation to the Defense. The AR 380-5 investigation was complete
on 16 June 2010. The Government learned of it in September 2010 and received a digital copy. The
Government reviewed the investigation and disclosed it to the Defense on 9 February 2011.

The USACID Computer Crimes Investigative Unit (CCIU) generated an unclassi?ed report and a
classi?ed report, both still ongoing. CID collected 50 individual digital media devices, of which initial
forensic examinations revealed that 23 contained information relevant to Accused and required further
examination. CID completed 22 ?nal forensic reports: three unclassi?ed reports of NIPRNET systems
(15 September 2010, 20 September 2010, and 27 July 2011), one unclassi?ed report of a SIPRNET
system (22 September 2011), one unclassi?ed report of digital media (22 September 2011) and 17
classi?ed reports (22 September 2011 and 20 October 2011). Before releasing the ?nal reports, CCIU
produced 10 interim reports of approximate dates: 7 and 13 July 2010, 6 and 23 August 2010, 21
January 2011, 2 February 2011, 7 and 28 June 2011,18 July 2011, and 22 September 2011. CID also
collected multiple sets of audit data or ?logs? for the computer networks from which the data on the
devices came. Some of the logs contain only classi?ed data, others contained both classi?ed and
unclassi?ed data.

In addition to the classi?ed information, the unclassi?ed CID reports contained unclassi?ed but
protected information and classi?ed information. This required DOJ to review the report for grand jury
information and information obtained by sealed search warrants. On or about April 2011, the
Government requested the Army G2 review the unclassi?ed CID ?le to identify any potentially?
classi?ed material. The Army G2 reviewed the reports and identi?ed two major equity holders of
classi?ed information. The Government requested both equity holders to review the relevant portion of
the CID ?le for classi?ed information. Both discovered classi?ed information. The Government then
requested authority to disclose the information to the Defense and to have the documents properly
marked as classi?ed material. The Iraq TC team received approvals to disclose 200 pages. The
information was disclosed to the Defense on 22 October 2010. The Government received further
approvals on 16 June 2011contingent on the Defense executing an protective order. The

9

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unclassi?ed CID reports were disclosed to the Defense between 25 July 2011 and 3 August 2012. On
or about 17 September 2011 all organizations approved disclosure of classi?ed information from the
original unclassi?ed ?le. The Government received the information on 27 October 2011 and disclosed
it to the Defense on 17 November 2011. CID continues to receive information and the Government
continues to process it for release to the Defense.

On 12 March 2011, the Government requested that CID conduct an administrative review of all
previously identi?ed classi?ed information in the case ?le to identify what equity holders may have
classi?ed information in the case ?le. The case ?le consisted of the classi?ed and unclassi?ed ?les
and the forensic reports. The Government intended to receive approvals from the OCAs to disclose
CID documents containing classi?ed information and derivative reports, to include the forensic reports
to the Defense. Authority to approve disclosure of the forensic reports was directly tied to approval to
disclose the underlying evidence. The Government received ?nal approval from all the equity holders
on 28 October 2011. In total, the CCIU analyzed approximately eight terabytes of digital media
containing classi?ed information. Prior to producing the forensic images of the memory drives of the
devices, the Government was required to coordinate with every government agency OCA that had data
on the drives. The Government initially searched the drives with security experts to identify the
agencies involved and the relevant OCAs.

On the following dates the Government submitted written requests to OCAs authorized to approve
disclosures of the charged documents and other classi?ed evidence to the Defense:

14 March 2011: and DA (approved 30 March 2011 with ?nal approval 28 October 2011 for all
CCIU classi?ed forensic reports and case DOS (approved 29 March 2011), ODNI (partial
approval 9 August 2011, full approval of intelogs 4 October 2011), OGA1 (approved 29 March 2011)
and OGA2 (approved 28 April 2011).

21 March 2011: DISA (approved 29 March 2011) and DIA (approved 7 April 2011)

23 June 2011: updated request to OGA1

23 June 2011 and 4 August 2011: updated requests to FBI, (?nal approval 28 October 2011), and
DIA (approved throughout Summer 2011)

11 August 2011: updated request to OGA1

On 3 October 2011, the Government received the ?nal forensic reports from CCIU. On 4 October
2011, CCIU approved release of the reports after review to ensure none of the information was
classi?ed IAW OCA authority. Between 3 and 26 October 2011, the Government processed the
330,000 page report and prepared it for production. On 26 October 2011, the Government requested
the Army G2 for approval to disclose the Army CID forensic reports that involve equities and
equities of other agencies that have approved release. On 28 October 2011, the Government received
from all relevant OCA approvals to disclose all images of digital data. On 4 November 2011 the
Government disclosed that information to the Defense.

Apparently, as of 15 February 2011, the Government believed it would have all the OCA reviews and
necessary approvals to disclose the CCIU forensic reports to the Defense before 15 March 2011 when
the Government emailed the Article 32 IO advising him that the RCM 706 board had a 3 March 2011
suspense date and the Article 32 would be ready to begin on 15 March 2011 and last 3 days.

Beginning on 25 April 2011, the Government began requesting approximately delays between
22 April 2011 and the restart of the Article 32 investigation (25 April 2011, 22 May 2011, 27 June

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2011, 25 July 2011, 25 August 2011, 26 September 2011, 25 October 2011, and 16 November 2011).
The Government developed a process of providing the with a request for delay
specifying the reasons for delay, the progress made in the case that month, and that an update would be
provided by the Government to the in 30 days. The would request the views of
the Defense, decide whether to approve the requested delay, and subsequently provide a
accounting memorandum documenting the period and reasons for the excludible delay.

Starting with a memorandum on 26 April 2011, the Defense objected to each delay. The 26 April 2011
memorandum requested to avoid delay of the Article 32 that the

1. provide either a substitute for or a summary of the information for relevant classi?ed
documents;

2. allow the Defense to inspect any and all unclassi?ed documents and reports within
the Government?s control which are material to the preparation of the Defense or requested by a
Defense Discovery Request;

3. ensure the Defense has equal access to CID and other law enforcement witnesses by
requiring trial counsel to make the witnesses available.

The Defense memorandum advised the that because of the limited discovery provided, it is
likely the Article 32 will be delayed unless the above information is provided in a timely manner and
requested that any delay be credited to the Government.

On 24 May 2011, 29 June 2011, 27 August 2011, 27 September 2011, and 25 October 2011 the Defense
objected via email to the second, third, ?fth, sixth, and seventh Government requests for excludable
delay by adhering to its position in the 26 April 2011 memorandum. On 25 July 2011, the Defense
submitted a memorandum in objection to the Govemment?s fourth request for excludable delay
reiterating it?s objection in the 26 April 2011 memorandum and renewing its 9 January 2011 speedy
trial demand.

Below is a summary of the Government requests and accounting memoranda:

25 April 2011 - First Request for Delay, 22 April 25 May 2011: Under Executive Orders
12958 and 13526 and Army Regulations 380-5 and 380-67, the United States cannot release
classi?ed information originating in a department or agency to parties outside of the executive
branch without the consent of the OCA or their delegate. Since 17 June 2010, the United States
has been diligently working with all the departments and agencies that originally classi?ed the
information and evidence sought to be disclosed to the defense and the accused. Enclosed are
redacted copies of the OCA Disclosure Requests and OCA Classi?cation Review Requests
without their enclosures, respectively. However, because of the special circumstances of this
case, including the voluminous amounts of classi?ed digital media containing multiple equities
and the subsequent discovery of more information helpful to both the United States and the
accused, more time is needed for executive branch departments and agencies to obtain the
necessary consent from their OCA or authorizing official. [Delay approved by on 29
April 2011 requiring trial counsel update NLT 23 May 2011]

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34276

12 May 2011 Accounting Memorandum: Excluded delay from 22 April 12 May 2011 based
upon:
a. OCA reviews of classi?ed information
b. OCA consent to disclose classi?ed information
c. Defense request for results of OCA reviews (26 August 2010)
(1. Defense request for appropriate security clearances for the defense team and
access for PFC Manning (3 September 2010)
e. 25 April 2011 Government request for delay

22 May 2011 - Second Request for Delay, 25 May 27 June 2011: The government is
continuing to work with the relevant OCAs to obtain consent to disclose classi?ed evidence and
information to the Defense along with receiving completed classi?cation reviews. In
anticipation of OCA consent, CID began making copies of classi?ed digital media and evidence
for disclosure to the defense. Additionally, the prosecution learned that several exhibits and
documents in the unclassi?ed CID case ?le require authorization to disclose apart from any
classi?ed information. The U.S. Attorney's Of?ce for the Eastern District of Virginia is
working to obtain that authorization on behalf of the prosecution from multiple federal districts
within the United States. [Delay approved by on 26 May 2011 requiring trial counsel
update NLT 25 June 2011]

17 June 2011 Accounting Memorandum: Excluded delay from 12 May - 17 June 2011 based
upon:
a. OCA reviews of classi?ed information
b. OCA consent to disclose classi?ed information
c. Defense request for results of OCA reviews (26 August 2010)
d. Defense request for appropriate security clearances for the defense team and
access for PFC Manning (3 September 2010)
e. 22 May 2011 Government request for delay

5 July 2011 - Third Request for Delay, 27 June 27 July 2011: the prosecution is
continuing to work with relevant OCAs to obtain consent to disclose classi?ed evidence and
information to the defense along with receiving completed classi?cation reviews. This includes
the enclosed additional requests forwarded by the prosecution on 23 June 2011, after forensic
examiners discovered another document on digital evidence requiring OCA consent to disclose
to the defense. The prosecution submitted the unclassi?ed CID case ?le to the National
Security Agency (N SA) and other government intelligence organization (OGA) to have their
experts review the ?le for classi?ed equities. The NSA identi?ed approximately 20 sensitive
documents requiring further review by their subject matter experts. The OGA is continuing
their review of the documents. The U.S. Attorney?s Of?ce for the Eastern District of Virginia
is continuing to work on obtaining authorizations from the relevant district court judges on
behalf of the prosecution to disclose certain exhibits and documents to the defense. Most of the
relevant disclosure orders have been signed but a few remain outstanding. Since the
previous request, the prosecution has received approval to produce the Secretary of the Army
AR 15-6 and related documents. After the defense acknowledges your protective order dated 22
June 2011, the prosecution will immediately produce these documents and continue to produce
all related documents. As the prosecution receives other approvals it will continue to disclose
evidence and information to the defense. [Delay approved by on 5 July 2011
requiring trial counsel update NLT 25 July 2011]

12





13 July 2011 Accounting Memorandum: Excluded delay from 17 June 13 July 2011 based
upon:
a. OCA reviews of classi?ed infonnation
b. OCA consent to disclose classi?ed information
c. Defense request for results of OCA reviews (26 August 2010)
d. Defense request for appropriate security clearances for the defense team and
access for PFC Marming (3 September 2010)
e. 5 July 2011 Government request for delay

25 July 2011 - Fourth Request for Delay, 27 July 27 August 2011: the prosecution is
continuing to work with relevant OCAs to obtain consent to disclose classi?ed evidence along
with receiving completed classi?cation reviews. The classi?ed CID forensic reports are
prepared for disclosure, pending ?nal approval by the relevant OCAs and ?nal review of
references to classi?ed information within the forensic reports. The prosecution submitted
the unclassi?ed CID case ?have their experts review the ?le for
classi?ed equities. The NSA identi?ed approximately 20 sensitive documents requiring further
review by their subject matter experts. The OGA identi?ed six sensitive documents requiring
further review. The U.S. Attomey?s Of?ce for the Eastern District of Virginia is continuing
to work on obtaining authorizations from the relevant district court judges on behalf of the
prosecution to disclose certain exhibits and documents to the defense. Most of the relevant
disclosure orders have been signed but a few remain outstanding. Since the previous
request, the prosecution has produced the Secretary of the Army AR 15-6 and related documents
as well as the complete record of the MSG Adkins reduction board approximately 10,000
pages of documents in total. The prosecution intends to produce portions of the unclassi?ed
CID case ?le that have been approved for release by relevant stakeholder agencies no later than
the date of this memorandum. As the prosecution receives other approvals it will continue to
disclose evidence and information to the defense. [Delay approved by on 26 July
2011 requiring trial counsel update NLT 25 August 2011]

10 August 2011 Accounting Memorandum: Excluded delay from 13 July 10 August 2011
based upon:

a. OCA reviews of classi?ed information

b. OCA consent to disclose classi?ed information

c. Defense request for results of OCA reviews (26 August 2010)

d. Defense request for appropriate security clearances for the defense team and
access for PFC Marming (3 September 2010)

e. 25 July 2011 Government request for delay

25 August 2011 - Fifth Request for Delay, 27 August 27 September 2011: the
prosecution is continuing to work with relevant OCAs to obtain consent to disclose classi?ed
evidence along with receiving completed classi?cation reviews. CID is conducting a
secondary review of the derivative classi?cation of the forensic reports. Recently, the
government?s security expert reviewed the forensic reports and advised that portions of the
reports should be reviewed based on the Security Classi?cation Guides governing the
information. The prosecution intends to produce the full reports once a ?nal determination of
the derivative classi?cation is made by CID Command and the Army G2 gives release consent.

13





0 0 34278

Three of these reports are unclassi?ed in their entirety and were give to the defense on 25 July
2011. The prosecution submitted the unclassi?ed CID case ?have their experts review the ?le for classi?ed equities. The NSA identi?ed approximately 20
sensitive documents requiring further review by their subject matter experts. The OGA
identi?ed six sensitive documents requiring further review. The OGA completed its additional
review, but the NSA review is ongoing. The U.S. Attorney?s Of?ce for the Eastern District
of Virginia has obtained all authorizations from the relevant district court judges on behalf of
the prosecution and the prosecution is currently obtaining signed protective orders from
defense, as required by district court judges, to allow disclosure of all relevant exhibits and
documents to the defense. The prosecution is continuing to work with the Federal Bureau of
Investigation (FBI) and Diplomatic Security Service (DSS) to receive authorization to disclose
relevant portions of any case ?les. This includes obtaining copies of the FBI and DSS case
?les, if any, to conduct a search of the ?les for discoverable infonnation. Since the previous
request, the prosecution has produced 21,442 pages of documents [Bates numbers omitted].
The evidence and information disclosed included the vast majority of the unclassi?ed CID ?le,
MAJ Clausen administrative reprimand ?le, recordings of all visits with PFC Marming at
MCBQ and various other documents. As the prosecution receives other approvals it will
continue to disclose evidence and information to the defense. [Delay approved by on
29 August 2011 requiring trial counsel update NLT 23 September 2011]

15 September 2011 Accounting Memorandum: Excluded delay from 13 July 10 August
2011 based upon:

a. OCA reviews of classi?ed information

b. OCA consent to disclose classi?ed information

c. Defense request for results of OCA reviews (26 August 2010)

d. Defense request for appropriate security clearances for the defense team and
access for PFC Marming (3 September 2010)

e. 25 August 2011 Government request for delay

26 September 2011 - Sixth Request for Delay, 27 September 27 October 2011: the
prosecution is continuing to work with relevant OCAs to obtain consent to disclose classi?ed
evidence to the defense and to receive completed classi?cation reviews. Since the last request,
the prosecution received a classi?cation review from the OCA at U.S. Cyber Command.
Additionally, the prosecution is working closely with the DOS and SOUTHCOM and expects to
receive classi?cation reviews for more than 80 documents within the next two weeks. CID
started the necessary secondary review of the derivative classi?cation of the forensic reports
and the forensic reports are in the ?nal stages of review before release. After CID completes its
review and the Army G2 gives consent to release, the prosecution intends to produce the full
reports with their enclosures and attachments to the defense. The prosecution submitted the
unclassi?ed CID case ?have their experts review the ?le for
classi?ed equities. Both the NSA and OGA have completed their additional review. The
prosecution is working with the NSA to provide a portion-marked version of the documents
they deem classi?ed. The U.S. Attorney?s Of?ce for the Eastern District of Virginia has
obtained all authorizations from the relevant district court judges on behalf of the prosecution.
The prosecution is continuing to obtain signed protective orders from defense, as required by
district court judges, to allow disclosure of all relevant exhibits and documents to the defense.
The prosecution continues to work with the FBI and DSS to receive authorization to disclose

14



relevant portions of any case ?les. The prosecution received copies of the FBI and DSS case
?les and started to review those ?les for discoverable information. Once the prosecution
identi?es discoverable information, it will work to obtain the proper authorization to produce
the relevant portion to the defense. Since the previous request, the prosecution has produced
2,492 pages documents [Bates numbers omitted]. The evidence and information disclosed
included documentation from the con?nement facilities, as well as the majority of two
classi?ed militaiy intelligence investigative case ?les. As the prosecution receives other
approvals it will continue to disclose evidence and information to the defense. [Delay approved
by on 28 September 2011 requiring trial counsel update NLT 25 October 2011]

14 October 2011 Accounting Memorandum: Excluded delay from 15 September 14
October 2011 based upon:

a. OCA reviews of classi?ed information

b. OCA consent to disclose classi?ed information

c. Defense request for results of OCA reviews (26 August 2010)

d. Defense request for appropriate security clearances for the defense team and
access for PFC Manning (3 September 2010)

e. 26 September 2011 Government request for delay

25 October 2011 - Seventh Request for Delay, 27 October 28 November 2011: the
prosecution is continuing to work with relevant OCAs to obtain consent to disclose classi?ed
evidence to the defense and to receive completed classi?cation reviews. Within the last several
days, the prosecution received a classi?cation review of approximately 100 documents and a
video from the OCA at CENTCOM. Additionally, the prosecution is continuing to work closely
with the DOS, OGA, and SOUTHCOM and expects to receive classi?cation reviews for more
than 80 documents before 1 November 2011. CID completed the necessary secondary
review of the derivative classi?cation of the forensic reports and prosecution is currently
processing and packaging the forensic reports, enclosures, and attachments for delivery to the
Army G2 NLT 27 October 2011. These reports consist of over 40,000 documents totaling more
than 300,000 pages. The prosecution will release the ?nal forensic reports to the defense once
the review by the Army G2 is complete and consent to disclose is received. The
prosecution submitted the unclassi?ed CID case ?have their experts
review the ?le for classi?ed equities. Both the NSA and OGA have completed their additional
review. Absent an unforeseen administrative issue, the prosecution will produce portion-
marked versions of the documents deemed classi?October
2011. Based on discussions with multiple OCAs, the prosecution?s security expert is
developing an evidence classi?cation guide (ECG) to aid law enforcement, prosecution,
defense, and other government officials in understanding what speci?c investigative
information is classi?ed. Although this guide will not be a security classi?cation guide
published by an OCA, this guide based on derivative classi?cations can be used by all parties
and potential witnesses to understand what information is classi?ed or not. In the short?tenn,
the guide will be used by CID agents and other government officials when discussing the case
with the defense. The prosecution continues to work with the FBI and DSS to receive
authorization to disclose relevant portions of any case ?les. The prosecution received copies of
the FBI and DSS case ?les and started to review those ?les for discoverable information. Once
the prosecution identi?es discoverable information, it will work to obtain the proper
authorization to produce the relevant portion to the defense. Since the previous request, the

15



prosecution has produced 771 pages of documents [Bates numbers omitted]. The evidence and
information disclosed consisted of additional documents from the CID case ?le. As the
prosecution receives other approvals it will continue to disclose evidence and information to the
defense. The prosecution scheduled a meeting with the defense for 8-9 November 2011.
The purpose of the meeting is for the prosecution to present its case, including a discussion of
the evidence supporting the charges against the accused, and present potential plea terms. The
goal of the meeting is to help the defense focus their review of the voluminous forensic
evidence and to minimize future delays. The prosecution continues to work with the defense
to frontload any administrative requirements for the defense members and their forensic
computer experts to review classi?ed information. Additionally, the prosecution ordered
several items requested by defense counsel, including a color printer, a GSA?approved shredder,
and large courier bags for transporting classi?ed information. [Delay approved by on
27 October 2011 requiring trial counsel update NLT 23 November 2011]

16 November 2011 Accounting Memorandum: Excluded delay from 15 September 14
October 2011 based upon:

a. OCA reviews of classi?ed information

b. OCA consent to disclose classi?ed information

o. Defense request for results of OCA reviews (26 August 2010)
d. 27 October 2011 Government request for delay

16 November 2011 Request to Restart Article 32 and Excludable Delay 28 November
16 December 2011: The prosecution is prepared to proceed and by 1 December 2011 should
have all approvals and classi?cation reviews necessary to proceed.

Restart Request: OCA reviews of classi?ed information. The prosecution received
completed classi?cation reviews for all charged documents, except the ?nal charged document
relevant to speci?cation 15 of Charge II. On 14 November 2011, the prosecution received
written con?rmation from an OCA delegate that the classi?cation review for the ?nal charged
document will be complete no later than 1 December 2011, if it is determined that such a
declaration is necessary. Based on this commitment, the prosecution requests the Article 32
investigation restart at this time to avoid further delay. OCA consent to disclose classi?ed
information. [In relevant part]The prosecution recently produced approximately 380,000 pages
of discovery, including (1) all charged documents; (2) all ?nal forensics reports; (3) the
complete unclassi?ed CID case ?le (4) classi?cation reviews; and (5) two classi?ed military
intelligence investigative case ?les. Defense request for appropriate security clearances for
the defense team and access for the accused. All members of the defense team received their
security clearances on or before 13 October 2011. On 4 November 2011, the prosecution
received the ?nal approval necessary for the defense team and accused to access all the charged
documents.

Excludable Delay. (1) [Speci?cation 15 document]

(2) OPLAN Bravo directs early planning for, and ensures coordinated and
support of, all aspects of the Article 32 proceeding. In order, OPLAN Bravo
requires the command to coordinate travel, security, public affairs, infrastructure support,
including Department of Army assets for movement and interagency support for both the
substance and administration of the above-referenced case. The mission?s key tasks include

16



safely and securely transporting and maintaining custody of the accused, providing physical
security and support at all stages of the proceeding, and conducting public affairs and media
support. The command, including its subordinate units and staff sections, requires thirty days to
initiate OPLAN BRAVO to execute the speci?ed tasks outlined in Enclosure 4, including
allowing adequate time for contracts to be executed. OPLAN BRAVO and its associated
tasks/requirements do not begin until you restart the Article 32 investigation. [Delay approved
by on 16 November 2011 excluding delay from 22 April 16 December 2011]

3 January 2012 Accounting Memorandum: Excluded delay from 16 November 2011 15
December 2011 based upon:

a. OCA reviews of classi?ed information

b. OCA consent to disclose classi?ed information

c. Defense request for results of OCA reviews (26 August 2010)
d. 27 October 2011 Government request for delay

Conclusions of Law:

The decision by the Government to obtain all relevant OCA reviews and CCIU reports and to have both
approved for release to the Defense was reasonable under the unique circumstances of this case.
Without the OCA reviews and CCIU reports, the Government would likely not be able to prove its case
and would be vulnerable to a challenge of a defective Article 32 investigation. The request by the
Defense for the to provide substitutions or summaries for the OCA reviews and the CCIU
forensic reports is not practicable. The could not provide summaries or substitutions without
coordination and approval of each of the equity holders involved. The information would have to be
properly classi?ed before summaries/substitutions could be negotiated, taking even more time. The
Government worked diligently to obtain approvals to disclose the evidence it intended to present at the
Article 32 investigation, to obtain protective orders governing the use of the classi?ed and law
enforcement sensitive discovery, and to prepare the discovery with appropriate classi?cation markings
prior to production.

The systematic approach developed and maintained by the prosecution team and the to
develop discovery and data tracking systems and updates to track the progress of the case is
one that should be encouraged, particularly in a complex case such as this involving a large number of
federal agencies to coordinate with and voluminous information.

Each of the seven Government requested delays was for speci?c reasons that had nexus to the delays
granted. Each delay was for a maximum of 30 days wherein the received an update as to the
status of the case and the outstanding evidence and approvals necessary for the Article 32 to
commence. The Government sent follow up requests to expedite the OCA reviews citing the
importance of the Accused?s right to a speedy trial. During each 30 day period there was progress in
the case. Both the complexity of the case and the highly classi?ed nature of the evidence provided the
good cause for the reasonable period of delay. A

The ?nal 30 day delay to restart the Article 32 for the implementation of the pre-plaimed OPLAN
Bravo was a reasonable delay to provide for the extensive coordination and logistics necessary for a
high pro?le case such as this one involving voluminous classi?ed information and requiring heightened
security for all the trial participants.

17

The did not abuse his discretion in granting each of the Government requested excludable
delays from 22 April 2011 16 December 2011.

RULING: With the 6 days added to the speedy trial clock and discounting properly excluded delay,
the Accused was brought to trial in 90 "days, well within the 120 days required by RCM 707. The
Defense motion to dismiss the charges for violation of RCM 707 is DENIED.

Sixth Amendment and Article 10:

The Law:

Sixth Amendment The Sixth Amendment speedy trial protection does not apply to pre?accusation
delays when there has been no restraint. United States v. Reed, 41 M.J. 449 (C.A.A.F. 1995). In this
case the Accused has been restrained pursuant to UCMJ charges since 27 May 2010. This date triggers
Sixth Amendment speedy trial protection. United States v. Marion, 404 U.S. 307 (1971). The date trial
begins ends Sixth Amendment analysis. In this case, trial is set to begin on 3 June 2013. In addressing
Sixth Amendment speedy trial claims, the Supreme Court set out four factors: 1) the length of the
delay; 2) the reasons for the delay; 3) the assertion of the speedy trial right; and 4) the prejudice to the

Accused. Barker v. Wingo, 407 US 514 (1972). When an Accused?s right to a speedy trial is violated,

the remedy is dismissal with prejudice. RCM 707(d)(l).

Article 10 - Article 10, UCMJ, is ?more stringent? or ?more exacting? than the Sixth Amendment, and
provides ?greater protections for persons subject to the UCMJ than does the Sixth Amendment speedy
trial right.? United States v. Cooper, 58 M.J. 54, 60 (C.A.A.F. 2003)(citing US. v. Kossman, 38 M.J.
258, 259 (C.M.A. 1993)) (?greater protections?); see also US. v. Cossio, 64 M.J. 254, 256 (C.A.A.F.
2007) (?more stringent?); United States v. Mizgala, 61 M.J. 122, 124 (C.A.A.F.
exacting?) (citations omitted). The Government must take immediate steps toward trial. Immediate
steps does not mean constant motion but reasonable diligence in bringing charges to trial during the
Accused?s pretrial con?nement. Brief periods of inactivity are not fatal to an otherwise active, diligent
prosecution. Although Article 10 is more stringent than the Sixth Amendment, the same four Barker v.
I/Vngo factors used to determine whether there has been a Sixth Amendment speedy trial violation also
applies when determining whether there has been an Article 10 violation. If the length of the delay is
not facially unreasonable, the remaining three Barker factors do not require analysis. United States v.
Schuber, 70 M.J. 181 (C.A.A.F. 2011). The Government?s requirement to exercise reasonable diligence
in bringing the charges to trial does not terminate at arraigmnent but continues to the date of trial.
United States v. Cooper, 58 M.J. 54 (C.A.A.F. 2003). Government compliance with RCM 707 doesn?t
prevent the Government from violating Article 10. United States v. Birge, 52 M.J. 209 (C.A.A.F.
1999)

Waiver - A plea of guilty waives any speedy trial issue as to that offense except a litigated speedy trial
motion under Article 10, UCMJ. United States v. Mizgala, 61 M.J. 122, 124 (C.A.A.F. 2005).

Sixth Amendment/Article 10 Article 10 is more stringent than the Amendment. Both are analyzed
using the Barker v. Wingo factors. The Court will address both the Amendment and Article 10 using
the more strict Article 10 analysis.

Findings of Fact: Pre-Referral:
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34283

The chronology at the appendix and the ?ndings of fact made with respect to the motion to dismiss for
violation of speedy trial under RCM 707 are applicable to the Sixth Amendment/Article 10 analysis.

The existence of voluminous amounts of classi?ed materials impacted not only the length of the
investigation and discovery process, but the length of the RCM 706 Board.

Conclusions of Law: Pre-Referral:

1. Length of the Delay The Accused was placed in pretrial restraint on 27 May 2010. His trial is
scheduled to begin on 3 June 2013. Thus, the Accused will have been in pretrial con?nement for
over three years when trial begins. This is a delay that triggers the Barker analysis.
The length of delay in this case must consider the time necessary to investigate and prosecute a
uniquely complex case such as this one involving rolling leaks of classi?ed information by WikiLeaks,
multiple classi?ed administrative and law enforcement investigations, a voluminous amount classi?ed
information, and required coordination among the Government and multiple agency equity holders to
charge, disclose, and use the classi?ed information at trial.

2. Accused?s Demand for Speedy Trial On 9 and 13 January 2011 and, again, on 25 July 2011, the
Accused demanded a speedy trial. Thus, as of 9 January 2011, the Government was on notice that the
Accused wanted a speedy trial.

3. Preiudice to the Accused The Accused has been restrained since 27 May 2010. The prejudice prong
of the Barker speedy trial analysis was designed (1) to prevent oppressive pretrial incarceration (2) to
minimize anxiety and concern of the Accused; and (3) to limit the possibility that the Defense will be
impaired. The Defense argues that the Accused was oppressively incarcerated in MCBQ and suffered
increased anxiety beyond the norm while con?ned in TFCF and MCBQ. The Accused was in mental
health treatment for anxiety before he went into pretrial con?nement. As the Accused?s mental health
deteriorated in TFCF, the Government expeditiously transferred the Accused out of theatre at the
request of mental health professionals. While this Court held on 7 January 2013 that the Govemment?s
maintenance of the Accused in prevention of injury (POI) status for certain periods of time while at
MCQB was excessive in relation to the legitimate Government interest of preventing injury, the Court
granted the Accused 112 days of sentence credit for violation of Article 13, UCMJ. The Court also
notes that the Accused was in MCQB from 28 July 2010 20 April 2011, the period the RCM 706
board proceedings was continued at the request of the Defense. Since 21 April 2011, the Accused has
been con?ned at the Joint Regional Con?nement Facility (J RCF) at Fort Leavenworth, Kansas in
medium custody. Other than the length of con?nement itself, the Court does not ?nd that the accused
was in oppressive con?nement or suffered undue anxiety beyond the normal incidents of con?nement.
The Court ?nds no evidence that the Defense will be impaired from the delay.

4. Reasons for the Delay 27 May 2010 and 22 April 2011 Between 29 May 2010 and 28 July 2010,
the accused was con?ned in Kuwait, a deployed theatre. His mental health was deteriorating to the
point where he was placed on 1 :1 suicide watch on 30 June 2010. The Government was working to
?nd a more stable con?nement facility that was not in a deployed theatre and had adequate mental
health facilities and providers to treat the accused. On 28 July 2010, the Accused was transferred to
MCBQ and jurisdiction of the case transferred to MDW. The original Article 32 hearing was scheduled
for 14 July 2010. On 11 July 2010, the Defense requested a delay in the Article 32 hearing for an RCM
706 evaluation of the Accused. On 12 July 2010, the Defense requested a delay in the Article 32

19

34284

investigation for an RCM 706 board and until the Accused made decisions on retaining civilian counsel
and civilian experts. The Accused retained civilian counsel on 25 August 2010. The
approved the RCM 706 board. The Board President advised the parties the board would begin on 27
August 2010. On 25 August 2010, the Defense requested a delay in the RCM 706 board until a
forensic was appointed to the Defense team. On 26 August 2010, the Defense requested a
delay in the RCM 706 board until procedures could be adopted to safeguard any classi?ed information
that would be disclosed during the board?s determinations. On or about 2 September 2010, the Defense
requested TS-SCI security clearances for each Defense member to include experts. On 17 September
2010 and 22 September 2010, the ordered a Preliminary Classi?cation Review (PCR). This
review, conducted by the Defense security expert, was completed on 13 December 2010. At that time,
the original RCM 706 board members remained on the board. The President proposed a substitute
third member who had more time to devote to the Board. As a result of the PCR, TS-SCI clearances
were processed for the RCM 706 Board members. The clearances were approved 31 January 2011 and
the ordered the Board to resume on 3 February 2011. The Board scheduled tests and an
unclassi?ed interview with the accused on 16 and 17 February 2011 with a classi?ed interview on 1
March 2011. On 21 February 2011, the Defense advised the Government that it wished to interview
the Accused before the RCM 706 Board conducted its classi?ed interview. Coordinating the Defense
interview prior the RCM 706_Board interview caused delay in scheduling the RCM 706 interview,
which ultimately took place on 9 April 2011. The Board completed its report on 22 April 2011. The
Court ?nds that the Government acted diligently in the transfer of the Accused to MCBQ and the
processing of the RCM 706 Board. The delay from resulting from the completion of the RCM 706
board from 3 March 2011 until 22 April 2011 was reasonable in light of the scheduling con?icts
resulting from the Defense request to interview the Accused prior to the classi?ed interview with the
RCM 706 board.

While the RCM 706 Board was awaiting the results of the PCR, the Government was moving the case
forward in other respects. The CCIU investigation was uncovering additional alleged misconduct
involving classi?ed information by the Accused that was not in the original charges. The Government
was working with investigators to understand the extent of the alleged misconduct and with other
agencies, to include DOS, DOD, and OGA1, to determine which disclosures of classi?ed information
should be charged and to obtain approvals to charge that information. The Government requested OCA
reviews of the classi?ed information in the 5 July 2010 charges. On or about 3 November 2010,
additional digital media was discovered by a search of the Accused?s Aunt?s house. The evidence
clearly shows that the Government was acting diligently to move the case forward from 25 May 2010,
when the Government learned of the alleged disclosure of classi?ed information by the Accused to 22
April 2011.

Reasons for the Delay 23 April - 16 December 2011 The reasons for the delay for this period are
set forth above in the Government Delay portion of the RCM 707 analysis.

5. Balancing the four factors On balance, the reasons for the delay justify the length of the delay. This
is a complex case involving multiple government agencies and entities, and which requires an almost
unfathomable amount of coordination and man-power. The Accused is charged with stealing more than
700,000 documents from classi?ed databases. The conduct giving rise to the charges resulted in
reaction by over 60 governmental organizations. The classi?ed information posted to WikiLeaks was
not released on a single day, but continued for eighteen months, starting and restarting the criminal
investigation and agency reactions.

20



In order to prove the majority of the speci?cations, the Government has to prove the classi?cation of
the charged documents at the time of the offense, and a classi?cation review was a necessary step
toward that end. Therefore, the classi?cation reviews were necessary for the Article 32 investigation
and the Article 32 IO considered the classi?cation reviews in order to determine whether information
charged was properly classi?ed.

The Court is not persuaded that the complexity of the case hinges on the Govemment?s_ charging
decisions. Indeed, the breadth of the alleged misconduct, and the number of government organizations
affected, is what makes this case complex and unprecedented. Furthermore, the nature of the evidence
and documents in this case, classi?ed information emanating from often over?lapping 0CAs, compels a
?nding by this Court that the delay was not for an unreasonable length of time in light of the reasons
for the delay.

The Government assiduously worked to bring this case to trial. Prior to 11 March 2011, the
Government made informal requests to each organization with ownership of charged information for
classi?cation reviews of that information. These informal requests were perfected in written
memoranda to each of the 0CAs on 18 March 2011, and approximately every 30 days thereafter. The
Government diligently and repeatedly educated the OCAS about the Accused?s speedy trial rights and
warned of the dangers of non-compliance. The Government set short suspense dates for the OCAS to
complete their classi?cation reviews, however the Government had no mechanism to enforce these
suspense dates. In addition, the Government frequently requested updates from the OCAs on the
classi?cation review process. The Government was coordinating among multiple federal agencies to
obtain permission to disclose classi?cation reviews, classi?ed charged documents, classi?ed evidence
(including digital media and audit data or ?logs? collected from SIPRNET systems), and classi?ed
damage assessments (which often contained information, requiring signi?cant interagency
coordination).

Both the complexity of the case and the highly classi?ed nature of the evidence provided the good
cause for the reasonable period of delay. There is no evidence that the delay was an effort to gain a
tactical advantage over the Accused or that the Government could have gone to trial earlier but
negligently or spitefully refused to do so.

Post-Referral - The Defense maintains that the Government violated Article 10 by impeding Defense
discovery and taking the following meritless positions throughout discovery in this case:
Maintaining that Brady does not require the Government to turn over documents that are relevant to
punishment; Maintaining that RCM 701 does not apply to classi?ed discovery; Disputing the
relevance of facially relevant items (such as damage assessments); Using the RCM 703 standard,
instead of the appropriate RCM 701 standard when dealing with items within the military?s possession,
custody and control; Referring to damage assessments and other documents as ?alleged? to
frustrate the Defense?s access to them; Maintaining that the DOS and ONCIX had not ?completed?
a damage assessment; Maintaining that it was ?unaware? of forensic results and investigative ?les;
Resisting production of the DOS damage assessment under the ?authority? of Giles 11 Maryland,
386 U.S. 66, 117 (1967) (which provided no legal support for its position); Despite understanding
Defense discovery requests, de?ning ?damage assessments? and ?investigations? to avoid producing
discovery. After instructing the Defense that it should not use the term ?damage assessments? to refer
to informal reviews of harm (instead, to use ?working papers?), then referring to working papers as
?damage assessments?; Insisting on a threshold of speci?city for Brady requests that does not exist
or some additional showing of relevance; Maintaining that the FBI investigative ?le was not

21





material to the preparation of the defense; (1) Maintaining that anything that predated the DOS damage
assessment was not discoverable because it was ?likely? cumulative; Arguing with the Court at
length about whether the Government was obligated to turn over documents that were obviously
material to the preparation of the defense absent a ?speci?c request?; Waiting until two days before
the Defense?s Article 13 ?ling before reviewing 1374 emails from Quantico which it had in its
possession for over six months. The Defense avers that the Government advanced each of these
positions in an attempt to frustrate the Defense?s access to discoverable information causing delay in
the Defense receiving discovery and delay in the time taken to litigate the discovery issues. The
Defense further maintains that the Government violated Article 10 by causing the following discovery
delays: (l)The Government?s failure to search its own ?les in a timely manner; (2) The Govemment?s
failure to conduct a timely Brady search of the ?les of non-military agencies; (3) The Government?s
failure to review any discovery from DOS for nearly two years; (4) The Govemment?s ?discovery? of
the FBI impact statement, DHS damage assessment, and OGA1 second damage assessment. In its
reply brief, the Defense also alleges that delay has been caused by DOS Touhy requirements that have
prohibited the Defense from interviewing DOS witnesses.

Findings of Fact: Post-Referral:

The case was referred on 3 February 2012. Prior to referral the Defense ?led the following discovery
requests (29 October 2010, 1 November 2010, 15 November 2010, 8 December 2010, 10 January 2011,
19 January 2011,16 February 2011,17 February 2011,13 May 2011, 25 May 2011, 21 September
2011, 13 October 2011, 15 November 2011, 16 November 2011, and 20 January 2012). Some of the
particular requests were speci?c (for example 15 November 2010 request The results of SA
Calder L. Robertson and SA David S. Shaver?s analysis of any computers analyzed in this case as
well as copies of any investigative notes or assessments by CCIU. Additionally, the names of all
individuals from CCIU or any other government agency that have performed or are performing
computer analysis in this case.). Other particular requests were not speci?c and overbroad (For
example, 8 December 2010 request Any assessment given, or discussions concerning, the
WikiLeaks disclosures by any member of government to President Obama. Any e-mail, report,
assessment, directive, or discussion by President Obama to the Department of Defense, Department of
State, or Department of Justice.)

On 16 February 2011, the Defense requested access to all classi?ed information that the Government
intended to use in this case to include any damage assessment or information review conducted by any
government agency or at the direction of any government agency. On 13 October 2011 and 1
November 2011, the Defense reiterated its discovery request for damage assessments of the alleged
leaks from Government agencies. On 16 November 2011, the Defense also asked for damage
assessments.

On 20 January 2012, the Defense requested the Government answer the following questions:

a. Does the Government possess any report, damage assessment or recommendation by the WikiLeaks
Task Force or any other CIA member, Information Review Task Force (IRTF), DOJ, DOS, ODNI, DIA,
ONCIX concerning the alleged leaks in this case? If yes, please indicate why these items have not
been provided to the Defense. If no, please indicate why the Government has failed to secure these
items.

b. Does the Government possess any report, damage assessment or recommendation as a result of any

22



joint investigation with the Federal Bureau of Investigation (FBI) or any other governmental agency
concerning the alleged leaks in this case? [Same ?yes/no? follow up as in

On 12 April 2011, the Government responded to the 1 November 2010 Defense discovery request for
damage assessments that ?The United States is not currently in possession of this information and will
make a determination whether to provide the information when it becomes available.? On 27 January
2012, the Government replied to the Defense discovery requests and the above questions. In response
to the request for all damage assessments conducted by OCAs, the Government response was ?The
United States will provide a response to this request no later than 3 February 2012.? On 31 January
2012, the Government replied to the Defense discovery requests for damage assessments by OCAs and
government agencies ?The United States will not provide the requested information. The defense has
failed to provide an adequate basis for its request. The defense is required to renew its request with
more speci?city and an adequate basis for its request.?

On 6 October 2011, the Government submitted written requests to DOS, FBI, ODNI, OGA1, and
OGA2 to review any alleged damage assessments. Most of the damage assessments are classi?ed and
many of those damage assessments, particularly those produced by the Intelligence Community,
contained classi?ed information from other government organizations, requiring
signi?cant agency coordination to disclose to the Defense. The request to review the DOS damage
assessment was denied. The Government was not authorized to review the DOS damage assessment
until 17 April 2012.

On 29 July 2011, the IRTF completed its Final Report. On 25 October 2011, the Government requested
approval to disclose the classi?ed IRTF Final Report to the defense. DIA reviewed the report and
identi?ed multiple government organizations with equities in the report. The prosecution coordinated
with the government organizations, along with DIA, for approval to disclose the entire report to the
defense. The Government moved the Court to approve a substitution on 18 May 2012.

The Government learned of the DHS damage assessment on 19 October 2011 and reviewed it on that
date. The Government noti?ed the Defense, but not the Court, of the damage assessment orally on 8
June 2012 and disclosed it to the Defense on 13 June 2012. On 14 September 2012, the Government
moved for limited disclosure under MRE 505(g)(2) of a DHS document. The Court conducted an in
camera review of the document and approved the redaction. The Government provided the DHS
document to the Defense on 25 October 2012.

On 12 July 2012, the Government learned that the CIA created a follow on damage assessment and
noti?ed the Court. The Government reviewed the report 13 July 2012.

The Government learned the FBI prepared an impact statement on 2 November 2011 and authorized
the Government to review it. The Government conducted a cursory review on 2 November 2011 and
reviewed the entire impact statement for discovery on 18 April 2012. The Government noti?ed the
Court and the Defense of the impact statement on 31 May 2012. The Government did not have
authority to disclose the impact statement to the Defense prior to referral. The Government ?led an
MRE 505(g) motion for limited disclosure. The Court ruled on the motion on 19 July 2012. The
Government disclosed the redacted impact statement to the Defense on 2 August 2012.

On 19 April 2011, 28 July 2011, and 15 August 201 1, the Government requested approval to disclose
the FBI case ?le and its sub-?les relevant to the accused to the Defense. The FBI case ?le is classi?ed.

23





The FBI provided the prosecution with a copy of the FBI ?le relating to the accused on 25 August 2011
for the sole purpose of reviewing for exculpatory/impeachment material. On 2 January 2012, the
Government requested a meeting with the FBI to discuss discovery. On or about 1 February 2012, the
Government completed its review of the FBI ?le relating to the Accused. On 7 February 2012, the
Government began negotiating with DOJ and FBI to disclose all requested information to the Defense.
The FBI would not approve disclosure to the defense, absent a military judge to issue a Protective
Order. The Court signed the Protective Order on 16 March 2012. The Government disclosed the
approved FBI ?le to the Defense, and the remaining information on 12 April 2012, 15 May 2012, and
21 May 2012. On 22 June 2012, the Court granted the Defense Motion to Compel #2 for the FBI ?les
minus grand jury testimony. On 3 August 2012 the Government ?led a Motion to Authorize Limited
Disclosure under MRE 505(g)(2). On 21 August 2012, the Court, after conducting an ex parte review
of the FBI ?le, ordered the Government NLT 14 September 2012 to identify numerically each proposed
redaction by Bates number and provide the Court with a justi?cation for each proposed redaction and
to identify whether each proposed redaction has been made available to the Defense from another
source. On 14 September 2012, the Government ?led a supplemental MRE 505(g)(2) motion with the
Court. On 25 October 2012, the Government produced the Court approved FBI ?les to the Defense.

At or near 15 December 2011, the Government advised the Article 32 IO that the damage assessments
were classi?ed, that the Government did not have authority to discuss the substance of the damage
reports, and that all but the IRTF are not under the control of military authorities.

The Government did not have authority to disclose any of the damage assessments to the Defense prior
to referral on 3 February 2012.

The Court set this case for arraignment on 23 February 2012. At the arraignment, the Defense ?led a
Motion to Compel Depositions (AE VII), a Request for a Bill of Particulars (AE VI), and a Motion to
Compel Discovery (AE dated 14 February 2012). The Court set these motions on the calendar
for the ?rst substantive article 39(a) session on 15-16 March 2012. The Court also signed the
Protective Order for Classi?ed Information on 16 March 2012 (AE

Prior to ruling on the Defense Motion to Compel Discovery (23 Mar 12, AE the Court was
unclear on the existence/status of the damage assessments at issue. At the Article 39(a) session on 15-
16 March 2012, the Government responded that it didn?t have authority to con?rm or deny the
existence of the damage assessments. To clarify the record, the Court, via email, asked the
Government the following questions and received the following responses:

QUESTIONS:
1. Is each in the possession, custody, or control of military authorities??
Government Response: -

a. Defense Intelligence Agency (DIA) and the Information Review Task Force Yes, the
classi?ed document itself is in the possession of military authorities however, the document
contains material from other Agencies and Departments outside the control of military authorities. The
military controls the document itself, but not all the information within its four comers.

b. Wikileaks Task Force No.

c. Department of State (DOS) -DOS has not completed a damage assessment.

d. Office of the National Counterintelligence Executive ONCIX has not produced
any interim or ?nal damage assessments in this matter.

24


A A . . 34289

2. If no, what agency has custody of each of the damage assessments?
. Government Response:
WTF - The Central Intelligence Agency has possession, custody, and control.

3. Does the Prosecution have access to the damage assessments?
Government Response:

a. DIA and The prosecution was given limited access for the purpose of reviewing for
any discoverable material. The prosecution only has control of the information within the document
that is owned by the Department of Defense (military authority).

b. WTF - The prosecution was given very limited access for the purpose of reviewing for
preparation of the previous motions hearing. The prosecution will have future access to complete a full
review for Brady material, as outlined below.

4. Has the Prosecution examined each of the damage assessments for Brady material??
Government Response:
a. DIA and Yes.
b. WTF -No.

4a. If yes, is there any favorable material?

Government Response:

DIA and Yes; however, the United States has only found classi?ed information that is "favorable
to [the] accused that is to punishment." Cone v. Bell, 129 1769, 1772 (2009); see also
Brady v. Maryland, 373 U.S. 83, 87 (1973). The United States has not found any favorable material

. relevant to ?ndings.

4b. If no, why not?

Government Response:

WTF- The prosecution has only conducted a cursory review of the damage assessment in order to
understand what information exists within the Agency, and has not conducted a detailed review for
Brady material. This process is ongoing and the prosecution will produce all "evidence favorable to
[the]accused that is material to guilt or to punishment[]" if it exists, under the procedures outlined in
MRE 505, Cone v. Bell, 129 at 1772; see also Brady v. Maryland, 373 U.S. at 87. Additionally,
the United States is concurrently working with other Federal Organizations which we have a good faith
basis to believe may possess damage assessments or impact statements, and will make such
discoverable information available to the defense under MRE 505.

Based on the responses the Government gave to the questions of the Court, on 23 March 2012, the
Court ruled on the Defense Motion to Compel Discovery, required the Government to produce the
IRTF, WTF, and DOS damage assessments for in camera review by 18 May 2012. The Court did not
require an ONCIX damage assessment be produced for in camera review because the response by the
Government led the Court to believe an ONCIX damage assessment did not exist.

Prior to answering the Court?s questions, the Government had telephonic and email communication
with ODNI (answering for ONCIX) regarding the status of any ONCIX damage assessment. ?To date,
ONCIX has not produced any interim or ?nal damage assessment in this matter. ONCIX is tasked with
preparing a damage assessment. However, that draft damage assessment is currently a draft and is

. incomplete and continues to change as information is compiled and analyzed. Damage assessments
can take months or even years to complete, and given the sheer volume of disclosures in this case we

25

0 34290

do not know when a draft product will be ready for coordination, much less dissemination.? ODNI did
not authorize the Government the authority to provide the language below the ?rst sentence to the
. Court (Government Interrogatory, 218, AE CDV).

In its response to the Defense Motion to Compel Discovery, in an email to the Court, and during oral
argument, the Government argued that RCM 701 does not apply to classi?ed discovery. This resulted
in the Defense ?ling a Motion to Dismiss on 15 March 2012 (AE

The Court denied the Motion to Dismiss on 25 April 2012 (AE ruling as follows:

1. In trial by general court?martial in the military justice system, charges are preferred against an
accused, the charges are investigated by an Article 32 investigating of?cer, and forwarded with
recommendations to the convening authority who makes a decision whether to refer the case to trial.
RCM 307, 405, 406, 407, S04, and 601.

2. In this case the original charges were preferred on 5 July 2010 and dismissed by the convening
authority on 18 March 2011. The current charges were preferred on 1 March 2011. The Article 32
investigation was held 16-22 December 2011. The convening authority referred the current charges to
trial by general court-martial on 3 February 2012.

3. Unlike trials in Federal District Court, a military judge is not detailed to a court-martial until the
case is referred. This case was referred on 3 February 2012. Article 26(a), UCMJ.

4. RCM 701 and RCM 703 govern discovery and production of evidence after a case has been referred
. for trial by the Convening Authority and a military judge has been detailed.

5. The President promulgated RCM 701 to govern discovery and RCM 703 to govern evidence
production after referral. The rules work together when production of evidence not in the control of
military authorities is relevant and necessary for discovery. US v. Graner; 69 MJ 104 (C.A.A.F.
2010). The requirements for discovery and production of evidence are the same for classi?ed and
unclassi?ed information under RCM 701 and 703 unless the Government moves for limited disclosure
under MRE 505(g)(2) or claims the MRE 505 privilege for classi?ed information. If the Government
voluntarily discloses classi?ed information to the defense, the protective order and limited disclosure
provisions of MRE 505(g) apply. If, after referral, the Government invokes the classi?ed information
privilege, the procedures of MRE 505(f) and apply.

6. From the 8 March 2012 Government response to Defense Motion to Compel Discovery and its
email of 22 March 2012, the Court ?nds that the Government believed RCM 701 did not govern
disclosure of classi?ed information for discovery where no privilege has been invoked under MRE
505. This was an incorrect belief. The Court ?nds that the Government properly understood its
obligation to search for exculpatory Brady material, however, the Government disputed that it was
obligated to disclose classi?ed Brady information that was material to punishment only. The Court
?nds no evidence of prosecutorial misconduct.

7. Although the RCM and military case-law encourage early and open discovery, the Defense does not

have a right to discovery under RCM 701 or Brady prior to referral on 3 February 2012.

8. Most of the information contained in the damage assessments requested by the Defense is

26





maintained by other government agencies. To obtain such information from other Government
agencies under RCM 703 whether discoverable under RCM 701 or not, requires the Defense
to show relevance and necessity. The Government does not have authority to compel production of
evidence from other government agencies under RCM 703(f)(4)(A) until after referral.

9. As the Court held in its 23 March 2012 ruling re: Motion to Compel Discovery, the fact that
information controlled by another agency is discoverable under RCM 701 may make such information
relevant and necessary under RCM 703 for discovery.

10. The Government has requested 13 departments, agencies, and commands to segregate and preserve
records involving WikiLeaks and requested information potentially discoverable from more than 50
additional agencies. This is a complex case involving voluminous classi?ed information in the
custody of multiple government agencies who have national security concerns with the disclosure of
this information. As of 12 April 2012, the Government has produced 2,729 unclassi?ed documents,
consisting of 81,273 pages, and 41,550 classi?ed documents totaling 336,641 pages. To secure this
release, the Government coordinated with multiple government agencies to issue protective orders
under MRE 505(g) and court orders for release of grand jury matter.

11. It is not unreasonable for Government agencies possessing potentially discoverable classi?ed
information to await the detail of a military judge to litigate issues of relevance, materiality, and
necessity, and, subsequently, to litigate issues arising under MRE 505 and MRE 506 prior to releasing
classi?ed discovery to the Trial Counsel to disclose to the Defense.

12. The Defense moved to compel the discovery it desires on 14 February 2012, 11 days after referral.
On 23 March 2012, the Court ordered the Government: to immediately begin the process of producing
the damage assessments for in camera review to assess whether they are favorable or material to the
preparation of the defense under RCM 701(a)(6), RCM 701(a)(2), and Brady; to immediately cause an
inspection of the 14 hard drives; to contact DOS, FBI, DIA, ONCIX, and CIA to determine whether
any of these agencies contain any forensic results or investigative ?les relevant to this case; to advise
the court by 20 April 2012 whether it anticipates any government entity that is the custodian of
classi?ed information subject to the defense motion to compel will seek limited disclosure IAW MRE
505(g)(2) or claim a privilege IAW MRE 505(c); and by 18 May 2012 to disclose any favorable
unclassi?ed information from the 3 damage assessments to the Defense and all classi?ed information
from the 3 damage reports to the Court for in camera review.

13. The parties? proposed trial schedules anticipate trial taking place between late September and
November 2012 absent the unanticipated ?ling of additional motions. Litigation of disputed discovery
is taking place well before trial. There is no discovery or Brady violation in this case.

The Court published its ?rst scheduling order on 25 April 2012. As with each subsequent scheduling
order, the schedule was coordinated with and agreed to by the parties. The Court received ?reply?
responses from the parties on the eve of the 15-16 March 2012 Article 39(a) session. The parties
advised the Court that they wanted to continue to ?le ?replies?, thus, time was built into the schedule.
This and each subsequent trial schedule had an approximately 6 week time frame two weeks for
?lings, two weeks for responses, 5 days for replies, and one week for the Court to consider all the
?lings. The 25 April 2012 calendar scheduled the trial 24 September 12 October 2012.

The Government has consistently maintained it would need 45-60 days to process Defense MRE

27

0 0 34292

505(h) notices and it would need 60 days notice prior to trial because of the number of witnesses to
coordinate schedules.

The next article 39(a) session to litigate motions was 6-8 June 2012.

a. On 10 May 2012, the Government ?led a Motion to Reconsider the Court?s Ruling to compel
production of the DOS Damage Assessment for in camera review because the damage assessment was
a draft (AE LXXI). On 11 May 2012, the Court granted the Government's motion to reconsider and
denied the Motion to ?nd that a draft assessment is not discoverable (AE On 24 May 2012,
the Government wrote a letter to the Deputy General Counsel, ODNI, requesting access to the most
recent version of the ONCIX damage assessment because the Court?s ruling that the DOS draft damage
assessment was discoverable would also apply to the ONCIX draft. On 30 May 2012, ODNI
responded to the Government that ODNI expected a coordinated version of the damage assessment to
be available by 13 July 2012 and that it was their strong preference that Government review take place
on or after that date to avoid the need to review multiple versions of the draft. On 31 May 2012, the
Government noti?ed the Court that there was a draft ONCIX damage assessment that would be made
available NLT 3 August 2012, the date in the 25 April 2012 scheduling order for the next production of
compelled discovery. The Government moved for MRE 505(g) limited disclosure of the ONCIX
damage assessment which was granted by the Court. The damage assessment was disclosed to the
Defense on 23 August 2012.

b. On 10 May 2012, the Defense ?led a Motion to Compel Discovery #2 and 30 May 2012
Supplement to the Motion to Compel Discovery (AE XCIX) scheduled among the motions for
litigation 6-8 June 2012. In the Supplement to the Motion, the Defense requested the Court produce
DOS witnesses to testify about the following subjects to clarify the record about what DOS information
exists that may be discoverable. On 4 June 2012, the Court ordered DOS witnesses to appear and
testify during the 6-8 June 2012 article 39(a) session (AE CXXII). On or about 8 June 2012, the
Government Moved the Court to delay ruling on the Defense Motion to Compel Discovery #2 to search
for the DOS records requested by the Defense. The Court granted the motion on 8 June 2012 (AE
CXLII) and ruled on the Defense Motion to Compel #2 on 22 June 2012 (AE CXLVII). The Court
granted the Defense motion in part and ruled in favor of the Government in part. The Court ordered the
Government to advise the Court if any agency would seek limited disclosure under MRE 505(g)(2) or
claim a privilege by 25 July 2012 and ordered production of discoverable material not involving MRE
505 on 3 August 2012. The Court clari?ed its ruling on 25 June 2012 (AE

c. On 10 May 2012, the Defense ?led a Motion for Due Diligence and for a 2-3 month
continuance after receipt of completed discovery until the start of trial. This motion was not on the
case calendar. Part of the Defense motion was a 17 April 2012 Memorandum for Principal Officials of
HQDA stating that ?it was only recently determined that no action had been taken by HQDA pursuant
to the 29 July 2011 memorandum from OGC to HQDA requesting it to task Principal O?icials to
search for, and preserve, any discoverable information. On 25 June 2012, the Court granted the motion
and ruled it would provide a reasonable continuance to the Defense upon receipt of compelled
discovery to prepare their case. The Court opined ?This is a complex case involving multiple federal
government agencies and entities. The Court is not clear what identi?able ?les pertaining to PFC
Manning relevant to this case are maintained by various agencies. . ., what inquiries the Government
has made to discover the existence of agency ?les pertaining to PFC Marming, when the Government
became aware of the existence of particular agency ?les, and what ?les the Government has examined
under RCM 701(a)(6), Brady, and/or RCM 701(a)(2). This Court must rule upon motions to compel

28

0 0 34293

discovery that have been ?led in this case and a speedy trial motion to be ?led by the Defense. One
document containing the information. . .will assist the Court in addressing discovery and speedy trial
issues.? The Court found no lack of due diligence by the Government and reserved ruling on that issue
until this speedy trial litigation.

With respect to the 17 April 2012 Memorandum, the Government submitted its initial Prudential Search
Request (PSR) to on 25 May 2011 and 6 June 2011 through Office of General Counsel
OGC). On 29 July 2011, OGC disseminated the PSR to all relevant departments to
include HQDA. The Government worked through the Office of the Judge Advocate General (OTJAG)
as a conduit to HQDA. On 4 October 2011, the Government obtained ?les from the Joint Staff
responsive to the PSR. Because the Government was preparing its 8-9 November and 18-19 November
2011 brie?ngs for the Accused and the Defense and for the 16-23 December 2011 Article 32
investigation, the Government did not review the ?les until 5 January 2012. During this review,
the Government learned the HQDA information was not within the material. The Government
contacted on 5 January 2012 and OTJAG on 10 January 2012. OTJAG sent the 17 April 2012
memorandum to HQDA. On 27 April 2012 the Government obtained ?les responsive to the PSR from
Army G2. On 11 May 2012, the Government received the HQDA ?les responsive to the request. The
Government reviewed the ?les and disclosed Brady and discovery material to the preparation of the
defense to the Defense. Although MDW and HQDA are Army entities, HQDA ?les are not MDW
?les. There was no negligence on the part of the Government with respect to the HQDA ?les.

The next Article 39(a) session took place 16 - 19 July 2012. On 9 July 2012, the Government ?led a
motion notifying the Court of the volume of DOS records gathered pursuant to the 22 June 2012 order
of the Court (5000 documents, most of it classi?ed). The Government moved the Court not to compel
discovery or to grant the Government 45-60 days to review the information and determine whether
seek limited disclosure or invoke a privilege. The Defense opposed. On 19 July 2012, the Court
granted the Defense Motion to Compel Discovery of DOS records and ordered the Government to
disclose all discoverable information to the Defense by 14 September 2012 or submit the discoverable
information to the Court for limited disclosure under MRE 505(g)(2) or invoke a privilege under MRE
505(c). After the Article 39(a) concluded, the parties and the Court met in an RCM 802 session to
discuss the Court schedule in order to split the Article 13 and Speedy Trial motions to separate Article
39(a) sessions. The parties and the Court agreed to new article 39(a) and trial dates with trial scheduled
4 - 22 February 2013. This court schedule was not memorialized as an appellate exhibit.

The next Article 39(a) session was scheduled 27-31 August 2012. The Article 13 motion was
scheduled for litigation. The ?ling deadline for the Defense Article 13 motion was 27 July 2012. The
Defense had advised the Court that the Civilian Defense Counsel would be out of town 27 July 9
August 2010 for two weeks on a personal matter and would have limited access to automation. On 26
August 2010, the Government sent the Defense 84 emails regarding Marine Corps Brig Quantico
(MCBQ). There was an additional 1294 Quantico emails not disclosed to the Defense. The
Government received the emails from 2 June 2011 5 December 2011, but did not review them until
25 July 2012 to look for enks/Giglio material. In its 8 December 2010 discovery request at the
Defense requested ?Any and all documentation or observation notes by employees of the Quantico
con?nement facility related to PFC Marming.? As the Defense had referenced emails in another section
of the discovery request and did not speci?cally reference emails in this one, the Government did not
consider the emails ?documents? within RCM 701 On 27 August 2012, the Court held an RCM
802 session with the parties to discuss scheduling in light of the 84 emails. Also on 27 July 2012, the
Defense ?led a Motion for a Continuance (AB 232) to have the Article 39(a) sessions after 27-31

29

34294

August 2012 and fhe speedy trial ftlings continued fbr two weeks with trial remaining as scheduled 422 Febmary 2013. OnlAugust 2012, the Court granted the motion(AE 233). The new trial schedule
was agreed to by both parties. Also onlAugusf 2012,fhe Government requesfedaconfinuancefrom3
August 2012 to14Sepfember2012fo disclose or obtain limited disdosure or invokeaprivilege
regarding infbrmation classifted above the "Secret" level oy^ned by CIA and DHS (AECCXXVIII).
After requiring the Government toftleasupplemenfalpleading stating with particularity howreview
and approvals difter fbr infbrmation classifted above the "Secret" level (AE 228), the Court granted fhe
mofion (AECCXXX). At the 27-31August2012Artide 39(a) session, the parties and the Court
confened and modifted the Court'sscheduling order. (AE 286 dated 30 Aug 2012). The new
scheduling order scheduled the nextArtide 39(a) session fbr17-180cfober 2012 and established new
suspensedafesfbrthespeedytrialandArtide 13 ftlings. The trial remained scheduled to start on4
Febmary 2013.
The parties and the Court agreed that because offhe potential length ofthe trial (the Govermnent
estimates 12 weeks)and the extensive logistic, administrative, and security support the trial entails, the
trial should not take place over fhe 25 December IJanuary holiday period. Thus, the parties and fhe
Court agreed that fhe trial should begin early enough in November 2012fo conclude by the holiday
period or to start after the holiday period.
OnlAugust 2012, fhe Defense submittedadiscovery request to fhe Goverrmnent asking fbr all fhe
remaining Quantico emails. On17August 2012 the Defense submiffedaMofion to Compel ^3 fbr the
remaining Quantico emails(AECCXXXXIII). The Govenmient voluntarily disclosed 600 ofthem to
the defense, stating in their intenogatory response at question 439that it was not until fheI7August
2012mofion tocompel that the defense ftnally provided speciftcity in its mofion to compel (AE
CDVI). On14September 2012, the Court granted fhe Defense Motion to Compel ^3 except fbr 12
emails(AEAECCCXVII)
OnI4andl9September 2012,the Government ftled motions fbr limited disdosure under MRE 505(g)
(AECCCI)^DOSrecords;AECCCXX)^DHSrecord;AE(CCXXII)CIAinftonnation;AECCXXIV
and FBI ftle. On 28 September 2012, fhe Court mled on these motions(AECCCI). The Court held
^^B^^^ Artide 39(a)sessions with fhe Government regarding the DOS records on20cfober 2012 and
the FBI ftle on 12 October 2012. The Govermnent modifted the MRE 505(g)(2) submissions in
accordance with fhe Court's guidance and made fhe infbrmation available to fhe Defense on or befbre
25 October 2012(AECCLXIII and CDIV). This concluded the Defense requested discovery
litigation.
The fbllowing two Artide 39(a) sessions were heldl7andl8Odober2012and7-8 November 2012.
At eachArtide 39(a) session, fhe trial schedule was modifted upon agreement by fhe parties and the
Court(AECCCLVIIIandAECCCLXXXV) Tria1remainedschedu1ed4Febmary2013^15March
2013.
On 22 Jtme 2012, the Government ftled its witness list in accordance with the case calendar. DOS had
previously required the Defense toftleaTb^/^^notice priorto approving Defense interviews ofDOS
witnesses. On 23 March 2012, the Defense submiffedaTb^/^^ requestto DOS by maiL The
Govemment fblloy^ed up wifhadigital copy on 26 March 2012. On5Apri1 2012, DOS received the
^ ^ ^ ^ requesL The Goverrmient fbllov^ed up approximafelylOtimes with DOS about fhe ^^/r^
requesL After the Goverrunent ftled its witness list on 22 June 2012, DOS no longer requiredaTb^/^^
letter and made ifs witnesses available to fhe Defense. On9August 2012, the Defense contacted DOS
30

34295

fo schedule interviews. The aftomey responsible was on leave. Onl8Ocfober2012Artide 39(a)
session, the Government documented fhe required MRE 505(h) notice from fhe Defense priorto
interviewing witnesses about classifted infbrmafion(AECCCLVII7). OnlNovember 2012, DOS
emailed the Defense to plan for witness interviews.
On17Noyember 2012,the Defense submitted notice to the Court that it might renew its motion to
Compel Witnesses fbr its Mofion to Dismiss fbr Violafion of speedy trial and requested that the parties
discuss fhe way fbrward at the nextArtide 39(a)session(AE CDIV).
The nextArtide 39(a) session was held 27 November^2December 2012 fo address the Artide 13
mofion. If quickly became apparent that seven days was not enough time to present all offhe witnesses
and evidence fbr the mofion. The trial schedule y^as once again modifted by fhe parties and fhe Court
to add two additional artide 39(a)sessions on 5-7December 2012 and again onlO 12 December
2012 fbrtheArtide 13 mofion. These changes were announced on the record withoutanewAE
prepared. The parties and fhe Court again confened and developedanew trial schedule dated 20
December 2012 (AECDLIII). This trial schedule contained an"A"anda"B" schedule depending
upon whether fhe Defense ftled and/or the Court granfedamofion to compel SpeedyTrial witnesses.
The trial date fbr schedu1eAwas18March^26 April 2013. The trial date fbr scheduleBwas 6-17
March2013.
The lastArtide39(a)session prior to going on record today, was on16January 2013. Theparties
realized that fhe current trial schedule was not possible in light offhe MRE 505(h) notices required fo
be ftled by fhe Defense fbr both witness interviews and disdosure of classifted evidence at triaL The
Government requires45^60 days to process MRE 505(h) notices. At fhe request offhe Court, fhe
parties confened and proposed fhe cunent trial schedule(AECDLXVI). This trial schedule provides
fbr the Defense toprovide rolling MRE 505(h) notices tothe Government withaftnal suspense date of
22 Febmary2013 and schedules the trial to begin3June 2013.
The Law: Post-Referral
Although fhe RCM 701 and military case-law encourage early and open discovery, fhe Govemment's
discovery obligations under RCM 701 or ^ ^ ^ ^ do not arise prior to referral on3Febmary 2012. RCM
701(a)(6) states that fhe Govemment shall disclose information favorable tothe defense as soon as
practicable. Inacase such as fhis one involving disdosure of classifted information, it is reasonable fo
interpret "as soon as practicable" to mean after refenaL Ifthe case is not refened, there would be no
need to disclose classifted infbrmation that could reasonably cause harm to the United States to the
Defense.
Evidence favorable to fhe Accused and material to guilt or punishment must be disclosed in sufftcient
time for the Defense to use it at triaL ^^.v.^^/^^^^^,71M.J.228,fh10(C.A.A.F.2012)^^^^^^^^
D^i^^^^^^v.^^^//^^.^,461F3d 181,196 97(2^^Cir 2006)(recogmz^^^
fbr yyhenadisdosure is timely; rather, the question is y^hether fhe evidence was disclosed in sufftdenf
time fbr an accused to take advantage ofthe infbrmafion,adeferminafion necessarily dependent on fhe
totality offhe drcumstances.
As the Court held in its 23 March 2012m1ing on fhe Defense Motion to Compel Discovery, the fad
thaf infbrmation controlled by another agency is discoverable under RCM 701 may make such
information relevant and necessary underRCM 703 to be produced fbr discovery.
31

34296

Most ofthe information contained in the damage assessments, FBIreport, and other discovery
requested by the Defense is maintained by other government agencies. Toobtain such infbrmation
ftom ofher Government agencies under RCM 703(f)(4)(A),whether discoverable under RCM 701 or
noL requires the Defense to show relevance and necessity. The Government does not have authority to
compel producfion of evidence from ofher govemment agencies under RCM 703(f)(4)(A)unfil after
refenaL
Conclusions ofLaw: Post-Referral
The Length of the DelayRequest fbr SpeedyTrial, and Prejudice factors fbllow the same analysis as
fbr Pre-Referral delay discussed above.
Reasons fbrfhe Delay^3February20I2-3June 2013The Govemment did not disdose damage assessments or ofher classifted infbrmation requested by the
Defense discovery requests prior to refenaL The Government did not have authority from the equify
holding agencies to disclose this infbrmation to fhe Defense. If is reasonable fbr an equify holder of
classifted infbrmation to await the detail ofamilitary judge to litigate issues ofrelevance, maferialify,
and necessity, and, subsequently, fo litigate issues arising under MRE 505 and MRE 506 prior to
releasing classifted discovery to theTrial Counsel to disclose to fhe Defense.
The Govemment requested 13departments, agencies, and commands to segregate and preserve records
involving WikiLeaks and requested infbrmation potentially discoverable from more than 50 additional
agencies. This isacomplex case involving voluminous classifted information in the custody of
multiple govermnent agencies having national security concems with the disdosure ofthis infbrmation.
Todate the Govemment has produced 526,366 pagesof discovery with 437,000 pages of classifted
discovery. Only3,435 pages contain MRE 505(g)(2) or MRE 701(g) redactions or substitutions. The
Government has not invokedaprivilege over any ofthe infbrmation requested in discovery by the
Defense. The Govemment has diligently engaged with the equify holding agencies to maximize
disdosure ofclassifted discovery to the Defense.
The Defense moved to compel discovery on 14Febmary 2012,lldays after referraL On 23 March
2012,the Court issued its mling on the mofion setting fbrth the Court'sview on the mies of discovery
and the interplay befweenRCM 701,RCM 703 and MRE 505 in this case. The parties had clarity on
the rules ofdiscovery after 23 March 2012. The Government has acted in accordance with the Court's
mlings in discovery.
With respect tothe ONCIX damage assessmenL the Govemment'sresponse to fhe Court'squestions
left the Court with the impression there was no ONCIX damage assessmenL From the prior contact
with ONCIX and ODNI, fhe Government was aware ONClXwas tasked y^ifh collecting infbrmation
from Federal agencies and draftingadamage assessmenL Prior fo the Court's23 March 2012 mling
compelling producfion of the IRTF,DOS,and WTF damage assessments fbr ^^^^^^^^ review, the
Government y^as not authorized by ONCIX or DOS to view what, ifany, draft damage assessment
these agencies had. The Govemment was aware the DOS damage assessment wasadraft. The
Government was not ay^are offhe status ofthe ONCIX damage assessment,y^hefher if wasa
compilation ofinfbrmation or y^hetheradraft had taken shape. After fhe Court'sllMay 2012 mling
thataDOS draft damage assessment yyas not exempt from discovery because if wasadraft, the
32

34297

Govemment y^ote to ODNI on24 May 2012 advising them that the Government believed the Court's
mling would apply to any damage assessment ONCIX prepared. On3IMay2012 the Govemment
advised the Court that ONCIX hadadraft damage assessmenL This adion by fhe Govemment shows
that the Government was not seeking to mislead the Court regarding the ONCIX damage assessmenL
The Govemment's litigation positions were notfrivolousor designed to spitefully thwart the Defense's
ability toobtain discovery. BofhRCM 701 and MRE 505 envision discovery litigation taking place
during pretrial litigation. Both parties are allowed fo advance their positions. In this case the Court has
receded positions taken by both sides. For example, the Court rejected the Govemment position thata
draft damage assessment is not discoverable. The Court also rejected the initial position advanced by
the Defense that fhe Government must produce all discovery requested by the Defense fbr ^^^^^^^^
review by the Court regardless ofrelevance. Inacase such as fhis one,wifh the volume of classifted
infbrmation af issue held by multiple equify holders thaf could be potentially discoverable, protracted
discovery litigation is almost inevitable.
Neither the Government nor DOS intentionally impeded the Defense access to witnesses by requiring
^ ^ ^ ^ notices. Once fhe 22 June 2012 witness list was ftled by the GovernmenL DOS no longer
required the ^^/r^ notices. DOS emailed fhe Defense onlNovember 2012 to coordinate witness
interviews. These interviews have been faking place in JanuaryFebmary2013.
The Courtftndsthe Govemment was not negligent with respect to fhe DHS damage assessmenL the
FBI impact statement, discovery of the CIA'screafionofafbllow-on damage assessment, or discovery
ofHQDAftles
The fad that the Govemment y^aited until the day befbre fhe Defense Artide 13 ftling to review the
1374Quantico emails fhe Government had in ifs possession since between2June2011and5
December 2011is troubling. The Govemment'sposition that it waited fo review the emails because the
review was to look only fbr Giglio/Jenks materiaL The Govemment'sposition that it not review the
emails fbr documents material to fhe preparation ofthe defense because the Defense discovery request
was not speciftc enough and documents do not fall wifhinRCM 701(a)(2) is untenable. The emails
were not classifted. Although the Defense discovery request stated "documents" and not'^emails",
emails can be "documents" fbr purposes ofRCM 701(a)(2)as well as Giglio/Jenks materiaL The
Govemment has an obligation to search information under the confrol ofmilitary authorities in their
possession fbr infbrmation discoverable tmder RCM 701(a)(2). The Court notes, however, the Defense
8December2010discoyery request asks only fbr documents and observations by employees ofMCBQ
relating to the Accused. The vast majority ofthe emails at issue are not by employees ofMCBQ. The
Court furtherftndsthat the GovemmenL by giving the Defense fhe 84 emails fhe night befbre their
Artide13 ftling was due, caused dismption to fhe Court schedule but it did not cause trial delay. The
trial was scheduled fbr4 22Febmary2012 after fhe July artide 39(a) session. The 30 August 2012
case calendar agreed to by fhe parties and the Court maintained that trial date. This action by fhe
Govermnent in an ofherwise diligent prosecufion does not violate Artide 10. Even absent an earlier
agreement by the parties, fhis trial y^ould inevitably have been delayed info 2013 y^ifh or without fhe
Mofion to Compel ^3 litigation in light of the2weeksofArtide 39(a) sessions added fo fhe calendar fo
litigate fhe Artide 13 motion and the required Defense MRE 505(h) notices and the time required to
process them.
The Govenmienf advised fhe Court from the start that if fakes between45^60 days tocoordinate with
agency equity holders to determine whether to disclose infbrmation fhe Court has deemed discoverable
^3

34298

or to provide fbr limited disdosure under MRE 505(g) or invokeaprivilege. Where the Govemment
has needed additional time, the Govemment has ftled fbr leave ofthe Court. Court mlings granting
leave ofthe Court to either party fbr additional time or motions fbr continuances mean the Court
deemed them to be reasonable delay.
The Defense argues that in order to exercise reasonable diligence under Artide 10, fhe Govemment
should have coordinated y^ifh equity holder agencies and have been prepared to submit MRE 505(g)
substitutions or invokeaprivilege prior tothe Court mling on whether fhe infbrmation thaf is the
subject ofthe litigation is discoverable. ArtidelOdoes not require fhis prepositioning. Itis
impractical and would have the Government and the equity holder agency or entify spend potentially
vast amounts oftime gathering information and proposing redactions and substitutions to infbrmation
the Court ultimately orders is not relevant or discoverable.
Balancing the4Fadors: As y^ifh the pre-refenal delay, the reasons fbr fhe delay justify the length of
the delay. The test fbr Artide lOisn't whether the Govenmienf could have acted with greater speed, it
is y^hether the Government acted with reasonable diligence. In this case, if did.
The Court has reviewed all the classifted ftlings ftled by the parties with respect to this motion. The
classiftedftlingsare consisfentwifh the Court'smling.
Ruling:TheCourtaddedsix daysto fhe RCM 707 dock Discountingproperfyexdudeddelay, the
Accused was anaigned within 120 days ofimposifion of restrainL The Defense Motion to Dismiss fbr
Lack ofSpeedyTrial underRCM 707 is DENIED. The Govenmienf acted with reasonable diligence
throughout the prosecution, the Defense Motion to Dismiss For Lack ofaSpeedyTrial under Sixth
AmendmenL andArtide 10, UCMJ is DENIED.
So Ordered this 26* day ofFebmary 2013.

^

^

-

^

DENISE R. LIND
COL, JA
CHIEF JUDGE, 1^^ JUDICIAL CIRCUIT

34

34299

INTHEUNITEDSTATESARMY
FIRSTJUDICIALCIRCUIT
UNITEDSTATES
RULINGAPPENDIX:
SPEEDYTRIALCHRONOLOGY
MANNING,BradIeyE.,PFC
U.S.Army,xxx-xx-(b)
(6)
Headquarters and Headquarters
Company, U.S.
Army Garrison, JomtBaseMyer-HendersonHall,
FortMyer,VA 22211

DATED: 26Febmary,20I3

This chronologyis an appendix to the Court's 26 Febmary 2013 Ruling on the Defense
Motion to Dismiss fbr Speedy Trial Violationincor^orafedinto the Court's FmdingsofFacL
Date
18FebI0

Event

I5-Mar-I0

Wikileaks(WL)releasedallegeddassiftedDOS cable (Speciftcation
14, Charge0) [Speciftcation^(S);Charge^(C)j
DOS Diplomatic Securify Service (DSS) begins investigating leak of
dassiftedDOS cable released by WL
WLrdeased alleged classified document (SI5,C1I)

5Apr-I0

WL released an edited version of the Apache video (S2,CII)

19FeblO

25-May-lO AdrianLamo reports thatPFC Manning admitted disdosmg classifted
documentstoWL
27-MayIO PFC Manning conftnedin CHUy^fharmed guard
29May10

PFC Manning ordered into pretrial confinement

30MaylO Military Magisfrate approved pretrial confrnemenL
31-May-lO PFC Mannmgfransfened to Theater Field ConfrnementFacihfy(TFCF)
in^uwait
The Iraq Trial CounselTeam (fraq TC) mailed the CID Computer
2-JunIO Crimes Investigation Unit (CCIU) to discuss fbrensic scans of
computers
fraq TC emailed CCIUto determine authorifyto "freeze" PFC
Manning's shared drive proftles and emailed Department ofState
3JunI0 (D0S)regardingameetingwithINSC0M,metwitfi"J2X"regardhig
tfneinvestigation of PFC Manning, andcaliedlNSCOM OSJA
regardingtf^ecase

34300

4JunlO

fraq TCmety^thJ2X and CID regardingthe investigation, called
CCIU regarding search authorizations, and sought clearances fbrthe

fraq TCs
7Jun10

fraq TCmefy^th CID to receive chatlogsrelatuigto the case, mefy^th
J2Xregardingthe status ofthe mvestigation, calledDOSty^ce and
called "0GA2" once to discuss the case

8JunI0

fraq TC called CCIU fbr an update on the case

IlJunIO

fraq TC emailed CCIU regardinganew search authorization, andmet
with J2X regarding the status ofthe investigation. TheSJAmetw^th
SJAfbrUSF-I to discuss inter-agency coordination

IlJunIO

CCIUissuedinitialreport

I2Jun-I0
13JunI0
14JunlO

Iraq TC emailed CCIU to discuss search and seizure authorization
requirements fbr digital devices
fraq TC again emailed CCIU regardingthe search and seizure
authorization requirements fbr digital devices
fraq TC emailed CID about obtainingasignature fbrthe search
authorization fbrasearch ofdigital devices and shared drives. CID
obtained the signature and sentthesignod authorization to CCIU

I5JunI0

TC called CCIU to discuss its preliminatyftndings and possible charges

I6JunI0

CCIU^s fbrensic analysis continued

I7JunI0

2IJun-10

22-JunlO

23-JunlO
23-JunIO
24Jun-10
29JunI0
30-Jun-IO

fraq TC called CCIU to discuss proofand charges, CCIU's preliniinary
report, and to identify potentially discoverable material and its
associated equify holders
fraq TC drafted deposition orders fbrthreey^tnesses and coordinated
y^thNational Guard andArmy Reserve units inBoston and Sacramento
manattemptto facilitate the depositions
fraq TC emailed CCIU to discuss its fbrensic analysis, tried to msh an
initialreport because PFC Manningwas not charged yet, and
coordinated with entities in CalifbmiaandMassachusettsregardmgthe
depositions and identiftedadepositionoftice in California
fraq TC emailed CCIU andDOJ to arrangeameetmgmGermanyto
discuss case preparation andalso emailed CCIU to obtam an update on
its fbrensic analysis
CID, Baghdad issued final report andfransfenedinvestigative
responsibilitytoCCIUbydfrectionofUSACIDC
fraq TC emailed CCIU aboutan update onits fbrensic analysis and
made two telephone calls regarding arrangements fbra706 board
fraqTCreceivedadelayedfbrensics report from CID. fraqTCsfressed
to CID the importance ofan initial draftto be able to charge PFC
Manning
TC emailed CCIU regarding CCIU speaking withDOS aboutthe cables
involved in the case

34301

PFC Manning, while in pre-trial conftnement, became unresponsive to
commands, beganyellingunconfrollably, shaking, babbling and
30Jun10 banging his head against the wall. He knotted sheets into nooses.
Reclassified to Maximum Custody/Adrninisfrative Segregation/Suicide
WatchUI
fraq TC emailed CCIU and others regarding the 706 board and tryingto
lJullO
ftndaproviderto serve on the board
3-JuI-IO Commander(CDRP,Expeditionary Medical Facility ^uwaitrequested
CDR, TFCF to Transfer PFC Manningtoafacilitywithaseparate
locked and spedal psychiatric ward orpsychiatric nurses, bothrequired
to manageacase ofthis level ofhighrisk and complexityfbr any
extended amount oftime
4JuI10
CDR, ThirdArmy/Arcentordered PFC Manningfransfened from
RFCF when an appropriate fadlitywith adequate mental health
resources would accepthim.
5-Ju110 Original Charges preferred
6JuII0

SPCMCAappoinfedLTC Craig MemtkaasArtide32Investigating
Or^cer(IO)

1I-JuI-I0

Artide32IOdeniedDCrequestfbrRCM706board

11-JuI-IO

DC requesfedRCM 706 board and delay ofArticle 32 investigation

IlJuIlO

llJuIlO
I2-Ju1I0
12Ju110

12JuII0
I3JuII0
I3I5Ju110

CDR,1^ArmoredDivisionandU.S.Division, Center senta
memorandum to CDR,ArmyConectionsCommandrequestingfransfer
of PFC Manningto the regional confinement facility (RCF),
Mannheim, Germany based on4JuI10fransfer order by the CDR,
ThfrdArmy/ARCENT
TCcontactedDivisionpsychiatristtotrytoidentifyaproviderfbrthe
706board;USFIDepufySurgeonrefenedtfiemtoCENTCOM
DC requested delay ofArticle 32 investigation untilRCM 706 board
completed and until PFC Manning couldresolve issues relating to
CivilianDefenseCounsel and Defense experty^tnesses
SPCMCAgranted DC requestto delay Artide 32 investigation untiI16
AugustIO
fraq TC emailed USFIdepufySJAfbr assistance in ftndingaprovider
fbrthe 706 board and also emailed USF-I depufy Surgeon who refened
tfiemtoARCENTorCENTCOMtoseekaprovider
DC requested appointment of expertmcomputerfbrensics
fraq TC worked y^th OSJA USAREURandArmyConecftons
command tofransferPFC Manningto eifherthe RCF unMannheim,
Germany orthe RCF atJointBaseLe^s-McChord, RCF Mannheim
wouldnot acceptPFC Manning. Because ofissues unrelated to the
case, PFC Manning couldnot befransfenedto the RCF at Joint Base
Lewis-McChord.

34302

I4JuI-10
2IJuI10
22JuI10

23-JuIIO

fraq TCmetwithDOJ and CCIU in Wiesbaden, Germanyto discuss the
way fbrward y^th the case; also made eftbrts tofransferPFC Manning
froml^uw^ttoabetterPCF
fraq TC emailed CCIU fo followup onapomt discussed duringthe
meetingI4-2IJuII0.TC also coordinated workspace fbr Defense
computer expert atFort^ox to permitwork on dassiftedinfbrmation
SPCMCAgrantedDC requestfor expert in computerfbrensics

25JuI10

WLrdeased "tineAfghanWarDiary"^76,000aI1egeddassifted
mcidentsfromtheCIDNE/Afghanistandatabase(S6,S7,CII)

25JuII0

fraqTCdisdosesCIDftletoDC

27Ju110
28Ju1I0
28JuI-I0

28Ju1I0
29JuI10
29JuII0
30JuI10
2AuglO

fraq TC reached outfbrinitial classiftcation of evidence andmade
more eftbrts to obtainaproviderfbrthe 706 board
GCMCArequesfedfransferofjurisdictiontoMDW. MDW GCMCA
accepted the fransfer.
GCMCAsignedProtectiveOrderGoveming Classifted Infbrmation
fraq TC emailed CCIU to requestadassiftcationreviewoftheApache
video and the cables onPFCManning^s personal computer and emailed
OTJAGto request dassiftcationreviews ofthe Farah 15-6,Apache
video, Gharani uivestigation, SOUTHCOM documents, CIDNEI/CIDNEAdata
PFC Manning arrived atMarine Corps Brig Quantico (MCBQ)
fraq TC coordinated the transfer ofjurisdictionin the case wifhMDW
TC(TC) and coordinated with the 0GA2 personnel assigned to the case
TC informed OTJAGthatApache video was too large fbrfransfervia
SIPRNET; started coordinating altemate means fbrtransferto Fort
Hood fbr dassiftcationreview; FBI beganjointparticipation inthe case
GCMCAreleased jurisdiction to SPCMCA

2AugI0

SPCMCAorderedArtide 32 investigation to be completed y^thinlO
days

2Aug10

TCrequestedamilitary trial judge be appointed as the Artide 32 10

3Aug-I0

SPCMCAorderedRCM706boardyvitfiasuspenseof20August20I0

3-Aug10
4Aug10

TCcoordinatedameetingyyithDOS regardingthe case and requested
authorizationto release mfbrmatibnto DC; made initial contacty^th
providers to assemble the 706 board; FBI became primary law
enfrorcement organization onthe case; TCcoordinatedArtide 32
hearingwithIO
AppointmentofLTCPaulAhnanzaastheArtide 32 Investigating
Ofricer

34303

4-Aug-lO

5-Aug-lO

6Aug10
8-AugIO
9-AugIO

lOAuglO

lOAuglO
IIAug-IO

1I-Aug10
12-AugIO
12Aug10

12AugI0

TC met withDC to discuss the case and parfy positions regarding ofter
to plead. TCcommunicatedyyithprovidersfbr706 board regarding
securify clearances and heldaconference call with CCIU
TC coordinated y^thDC and providers regarding classified infbrmation
duringthe 706 board. DC advisedTCandDr. Sweda thatthe accused
would not divulge classified infbrmation duringthe RCM 706 board;
TC received CCIU^s fbrensic briefing on the case
Dr. Sweda began assemblingRCM 706 team and requesfeda3month
suspense to conductthe board. TC continued to receive CCIU fbrensic
briefing on the case
TC continued to receive CCIU fbrensic briefing on the case
TC met telephonically with DOS regarding its equities in the relevant
documents. Iraq and MDWTCs met to coordinate handoft^ofthe case
DC advisedTCandDr. Sweda thatDCrequesteda6-week suspense
fbrthe RCM 706 board y^th extensions ifnecessary. TC coordinated
y^thDC to estab1isha6-weeksuspense fbrthe 706 boardy^th
extensions possible, tests fbrthe 706 board to perfbrm, and delay ofthe
Artide32untiltfie706iscomp1ete.TCmetwithDOSandDOJto
discuss the dassiftcationreviews, discovery, and the ongoing
mvestigation
RCM706boardnotiftedTC/DCtfiattfieboardwiIIbegin27AuglO
y^th an initial 6-week suspense date
DC requested delay ofArtide 32 investigation until completion of
RCM706board
TCmetwitfiDOJandPOCfromtfieU.SAttomeyfortfie Eastem
DistrictofVfrginia(EDVA) to discuss DOS dassiftcationreviews, the
ongoing investigation, and discovery
Artide 32 InvestigatmgOfticerrecommended that SPCMCAapprove
the DC delayrequest fbr completion ofRCM 706 board
SPCMCAapproved DC requestfbr delay ofArtide 32 mvestigation by
excluding the period from llAugust2010unti1 the R.C.M.706Sanify
Board completion as excludable Defense delay.
TCmetwitfiCCIU,DOJ,andIRTF

13-Aug-IO TCmetwitfiCCIU,DOJ,FBI,andIRTF
TC emailed DOS fbr an updateon the classification ofactual
telegraphic message reference numbers (MRNs)and also infbrmed
I6-Aug-I0 DOS ofupcomingOCAreviewrequest, emailed0GA2tocoordinatea
meeting, and reviewed printed fbrensic reports. 800 pages ofMRNs
were recoveredfromunallocatedspaces onPFC Manning's computer.
AdditionalMRNs were recovered fromPFC Manning's computer. TC
conftrmed y^thDOSthatMRNs are not classifted; TC metwith
I7Aug-I0
multiple OGAs to discuss assistance to law enfbrcementand potential
discovery issues

34304

TCemailedDOS to discuss discovery issues andfraqTCs to discuss
dassiftcationreview of classiftedMRNs. TC metwith CCIU to discuss
18Aug10 subpoenas, discovery letters, anditsfbrensicanaIysis,ca11edIRTF to
discuss prosecution access to compromised datasets, andrequested the
masterMRNIistfromCCIU
20-Aug-IO TCsentadassiftcationreviewrequestthrough OTJAG to DOD
TC communicated y^th 706 board to discuss the records theywould
23-Aug-IO need and thetimeframetheyrequfred. Board scheduled to begin27
AuglOandhadno records ofPFC Manning
TC gathered documents fbrthe 706 board and spoke withDIAabout
24-Aug-IO
thecase
CDC, Mr. Coombs, advised TCthathe has beenretained by PFC
Manning andftirt^er advised thatPFCManningwillhave to divulge
25-AuglO
TS/SCImfbnnationtotf^eRCM706board. DCrequestedtfiattfrte
RCM 706 boardhave all therequestedrecordsbeftore they begm.
25-Aug-IO DC requested delay ofRCM 706 board until fbrensic psychiatry expert
appointed to Defense team
25-Aug-IO SPCMCAexduded the period between27August2010and the date the
CGMCAtakes action on the DC requestfbr appointment ofafbrensic
psychiatiryexpertconsuItantasexdudab1edeIayunderRCM 707(c)
25Aug10

TCmefwitiiCCIUfbranupdate;a1sometwitiiDOJ,EDVA,andDL^

25-Aug- TCcoordmatedy^thCOLMalone to identifyafbrensic psychiatrist
1012 Od expert consultantfbr DC who would be capable of attainingaTS/SCI
clearance
10
26Aug-10 DCrequesteddelayinR.C.M.706boardtocomp1ywitfiprohibitions
on disdosure of dassiftedmfbrmation. DC requested thatasecurify
ofricer be appointed to the board
26-AugIO TC coordinated delay in 706 board to address DC securify concems
DC requested Original Classification Reviews to include (1)the

dassiftcationlevel ofthe infbrmation alleged to have been disclosed by
PFC Manning whenit was subjected to compromise; (2)a
26AuglO
determinationwhether another conimandrequires review ofthe
infbrmation; and (3)the general description ofthe impact of disclosure
on aftected operations
30AugI0
ISep-^0

TCmefy^thEDVAandDIAto discuss IRTF requests and discovery
TCmefwitfiEDVAandFBIandcalledCCIU

TCadvisedCOLMaIonetfiatDCwouIdrequestRCM706board
members have TS/SCI clearances
DC requested TS-SCl securify clearance fbr eachDefense member, to
23-Sep10 mclude experts. TCfbrwardedDC requests fbr securify clearances to
OTJAGandOTJAGbeganprocessingthem
1-Sep10

34305

3-17Sep
10

TC coordinated appointment ofDC securify consultant

TC called OTJAGto discuss security clearances and classiftcation
review ofthe Apache video
TC obtained update from CCIU, calledEDVAandFBI aboutthe case,
8-SeplO
andcalledMEDCOMaboutmentalandmedicalrecords
TC obtained mfbrmationfromDC fbr securify clearances andrelayedit
9SeplO
to OTJAGfbr action
COL Malone advised TC thatRCM 706 boardmembers needing
9Sep10 TS/SCIclearanceswere: Dr. Sweda,LTCSchneider,andCPT(P)
Benesh
TC checkedy^thDOSregardingupcomingOCAreviewrequest;
drafted spedal securifyinstmctions fbrthe 706 board; commumcated
10Sep-I0
y^thOGAI regarding protection of classifted infbrmation at trial; and
metwitfiDIAandOTJA^ called CCIU
TCobtamed update from CCIU;requested assistance fromArmyG2
13-SepIO
fbr obtaining clearances and securify experts fbrthe Defense
TC communicated y^th OTJAGto discuss securify experts fbrthe
I4Sep10 Defense, prosecution, andasecurify manager fbrthe Artide 3210; met
withthe FBI; mefy^thDOJandDOS to discuss dassiftcationreviews
TC obtained an update from CCIU and mefyyith the MCBQ to discuss
15-Sep-lO
medical support
17SepI0 SPCMCAappomted Defense security expert consultant (Mr. Ganiei)
and securify o^cerfbr RCM 706 board
I7Sep-I0 SPCMCAissuedProtective Order Goveming Classifted Infbrmation
7SepI0

I7Sep10

SPCMCA ordered Preliminary ClassiftcationReviewofPFC
Manning'sMentalImpressions (FCR)
18Sep-I0 DCftledResponseto the Preliminary Classiftcation Review of PFC
Manning's Mental Impressions.
TC addressed various DC requests regarding clarifying an ordertoa
20SeplO Defense expert and reviewed proposed DC changes to the protective
order
TC emailed MDW securify regarding access to classified infbrmation
21-Sep-IO
fbr PFC Manning; also received an update from CCIU
22-Sep-IO SPCMCAissued Superseding Order fbr Prehminary Classiftcation
Review ofPFCManning'sMental Impressions ordering PFC Mannmg
to meefyvith the defense securify expert by80cober 2010
22-Sep10

TC received an update from CCIU

23-Sep-IO

TC worked issue of gettingpsychiatric expert fbr Defense

27-Sep-IO

TC met y^thDIAand communicated y^th OGAl to arrangeameeting
y^th its OGC; also communicatedy^thMEDCOMregardingPFC
Manning's mental healthrecords

^

34306

28SeplO

28-Sep-lO
29SepI0
30-SepIO
30-SepIO
lOctIO
4Oct10
7-Oct-IO
lOOctIO
I2-Oct10
120ctIO
12Oct10

DC requested secondDefense security experttoassistPCR, fbr PCR to
take p1acemSCIF,andfbr PFC Manningto be givenaccess to
dassiftedinfbrmation. DC advised SPCMCA that securify expert
ophiedthatPCRcouIdnotbe completed within the suspense.
TC communicated wifhMEDCOMregardingPFCMannmg'smental
healthrecords andreceivedanupdate from CCIU
TC communicatedyyithMEDCOMregardmgPFC Manning'smental
healthrecords
TC discussed dassiftcationreyiewswithHQDAandmade
anangements fbraSCIFatwhich to conductDefensemeethigs, PCR,
and 706 board
CID requestedPFC Manning's command to preserve any additional
hard drives used during his deployment to fraq
TC communicated y^thDC regarding SCIF and expert issues, and
communicatedy^thOGC, OGAl toanangeameeting
TCdiscussedy^thDC the abilifyofPFC Manningto discuss classified
irtfbrmation withDC; TCmetwithMDW security about storage of
dassiftedinfbrmationfbrDC;TC commumcatedwithDIA
TC communicated y^thDC to discuss SCIF venue fbr DC and security
experts
CCIU notifted the TCthatithaddevelopedaprogram to trackDOS
MRNs
SPCMCAappouited expert consultantinfbrensicpsychiatryfbr
Defense (DOLBenedek)
SPCMCAappouited secondDefense security experttoassisfyyithPCR
(MrHall)

12Oct10

SPCMCAexdudedtfieperiodfroml2JuII0untiII2OctI0as
exdudable delayunder R.C.M.707(c)inanaccountingmemorandum.
SPCMCAappohitedsecurityo^cerfbrtheRCM706board

12Octl0

TC received an updatefromCCIU

13Oct10

TC met withFBI and CCIU andreceivedanupdate

15Oct10

TC infbrmed 706 board that board was still delayed due to clearance
issues; TC worked on discoveryproduction ofthe unclassifted ftle
TC received origmal dassiftcationreview oftheApache video;
communicated y^thDAto discuss classiftcation of evidence; continued
to work on discovery ofthe undassiftedftle
TCfbllowedupwitfiCCIUtoobtamfeedbackontfieMRNRFI;
continued to work on discovery ofthe undassiftedftle
TC rehearsed procedures ftormovementofPFCManningfromMCBQ
totfieFieIdInvestigativeUnit(FIU)SCIF

180ctIO
19Oct10
I9Oct10

34307

20Oct10

TC communicated with CENTCOM to discussadassiftcationreview
andDAto discuss evidence dassification; TCcalled CCIU to discuss
some ofthe charges

21Oct10

TCmefy^thFBIandDIAregardingthecase

21Oct10
22Oct10
22Oct-10

DC requested documentationPFC Manning signed dealing y^th
infbrmation security,hisfrainingrecords, andaTS-SCI stand-alone
systemy^fharemovable hard drive.
Discovery ProdudionBafes^0000000I-00000429(429pages),
indudmg Preferral Packet [Undassiftedj
WLrdeased 400,000 alleged dassiftedmcidents from the CIDNE/fraq
database(S3,4,CII)
^

22Ocf-I0

TC worked on discovery ofthe undassiftedftle

25Ocf10

TC contacted CCIU to receive additional feedback on the MRN RFI

26Oct-10

TCmetwitfiDLA,CID,FBI,andDOJ

27-Oct-IO

TC attended IRTF meeting, metwith CCIU andFBIfbrupdate on
investigation,

27Oct10

Defense security experts interviewed PFC Manning fbr PCR

28-OctIO
29Oct10

DC requested appointment of expertininfbrmation assurance to the
Defense team
DC submittedadiscovery request

29Oct10

DC requested TS stand alone system to review discs fbr DC experts

29Oct10

TC worked on gathering infbrmationresponsive to DC requestfbr
records fbr Defense experts (PFC Manning'sfrainingrecords, etc.,)
Defense experts requested TC provide its securify experts with the
^
classiftcation guide used to dassifythe information, the lihkto the
video that was allegedly released by PFC Manning, and the damage
assessments conducted bythe OCAs
TC worked on access authorizationrequest fbr Defense securify
experts; TCgaveDCasafe
CID condudedasecond searchofPFCManning's aunt'shouse and
discovered additional digital media: (1)hard disk drive, (3) SD memory^
cards, (I)smartmediacard,(I4)CD-Rdiscs,(2)CD-RW discs, (1)
USB memory card, (1)book,andasea1ed box y^thPFC Manning's
personal belongings from Kuwait
^
TC communicated y^thCOLMalone who indicatedhe could provide
care fbr PFC Manning, in the absence ofthe USN provider, a^ he
possesses the proper dearanceandhasahistoryy^thPFC Manning

I-Nov-10

2-NovIO
3NOV-I0

4-Nov-IO

34308

TCreviewedlRTF material, became aware that ONCIX was startinga
smiilarreview, anddownloadedallDOS cables fbrpotentialcharghig
dedsion
9Noy-I0 TC mefyyith CCIU to discuss investigative update, Ibrensics, dates fbr
chatlogs, SOUTHCOM documents on SIPR computer, and evidence of
Farah downloads. TCmetwithDOS legal advisers, briefed them on
whatTCneededto prosecute andthe ongoingprocess of determining
tfie proper OCA to review speciftc documents
lONov-10 Discovery ProductionBates^00000430-00000450(21 pages),
induding InitialArtide 32 Packet [Undassiftedj
IONov-10 SPCMCAissued supplemental guidance fbrthe PCR
7-Nov10

lONovIO

SPCMCAexdudedtfieperiodfrom12Od10untiII0NovI0as
exdudable delayunder R.C.M.707(c)hianaccountingmemorandum
IO-Nov-10 TCmetwithDOS to pickup documents as well as deliver classifted
infbrmation to DOS fbrreview
lONovIO SPCMCAandG2 approved defense security experts to use DIPRand
JWICSforPCR
l I N o v I O Discovery ProductionBates^00000451 00000474(24 pages),
including InitialArtide 32 Packet [Undassiftedj
15-Nov-IO DC submittedadiscovery request
16-Nov-IO DC requested coordinationfbr PFC Manning'smovement so that
Defense securify experts couldmeetwithhim; DC requested to meet
witfiPFCMannmgoufsideofMCBQ.
I6N0VIO TC ihetwithFBI agent and y^th OGAl to discuss investigative leads
and potential use of documents
17-Nov-lO TC met y^thlRTF to discuss compromised infbnnation
19NOV-10 Discovery ProductionBates^00000475-00000662 (188 pages),
including InittalArticle 32 Packet [Undassifiedj

19-Nov-IO reproduced USCENTCOM andMNF-lsecurify classification guides
to DC [classifted^
24-Nov-IO DOS infbrmed TCthatDOS completed thefrpreliminary review ofthe
proposed cables and asked to scheduleameeting
28NovI0 WLbeganrdeasingal1egedDOSdassiftedcabIes(S,I2,I3,CII)
29NovI0
29-Nov
I0 20Apr
11
3ON0V-IO

DC requested appointment ofinvestigator fbr Defense
TC/DGcommimication TG/PFGM^t^mngComm^nd^SPCMCA^^t^d

MCBQ interactionregarding PFC Manning's custody and conftnement
whileatMCBQ
DC requested an update on when the new charge sheet would be
prefened and onPOIrestrictions fbr PFC Manning andrequested

34309

coordinationfbr DC to meet PFC Manning at Fort Be1vofronl4-15
December
30-Noy-10 TCmetwithDOS to discuss charged documents and classiftcation
review; TC,viamemorandum,requestedthe Depufy Chief ofStaft^fbr
Intelligence fbr assistance and dfrection to ensure the appropriate
original classiftcation authority conductadassiftcationreviewof2
power-pointpresentationsandJTF-Guantanamo Bay Detainee
Assessments
30-NOV-8 TC coordinating location of andfransportationfbrthe accused fbr DC
Dec 10
14-15 Dec visit
IDeclO TCmetwitfiDOSandDOSFOIAsectionandwitfiMDWfbrspace
utilization.
2Dec10 TCmewyvith CCIU and DOJto discuss extemal hard drive
8Dec10

DC submittedadiscovery request

9DecI0

TCmetwitfitfieFBIandED^

13Dec-10 Results ofPCR provided to the GovemmenL
13-Dec-IO
I4Dec10

TC received anupdate onthe fbrensic examination ofSID card
discovered atPFCManning'saunt's house and discussedfravelto New
Ybrky^tfiCCIU
TCmetwithOGAl and CCIU

16Dec10

Sec Army dfrected LTG Caslen to conductARI5-6 investigation into
the alleged crimes committed hy PFC Manning
17-Dec10 SPCMCAdeniedDC requestfbr appointment ofinvestigator
I7-Decl0
18DeclO
20-Dec-lO

20^21 Dec
10

30DecI0

SPCMCAexdudedtheperiodfromI0NovI0untiI17DecI0as
exdudable delayunder R.C.M.707(c)in an accountingmomorandum
Defense requested the names ofmembers on the RCM 706 board
TC mefyyith CClU,EDBAand DOJ about prosecutorial coordination;
metwith OSJAto coordinate MCBQ conftnement conditions; TC
receivedasituational report (SITREP) frommovementteamregarding
PFCManning
TCcontactedDr. Sweda to confirmRCM 706 members remainedDr.
Sweda,LTC Schneider, andCPT(P)Benesh. Dr.Swedaadvisedhewas
gomgto substitute LTC Hemphill fbr LTC Schneider because she had
more time to devote to the RCM 706board
DefensesubmittedMRE505(h)motionfbrRCM706board

34310

3-Jan11

TCmefy^thDISAanalystto discuss web analysis, with SecArmy 15-6
team to discuss hivestigative lanes, and y^th witness CPTLun atFort
Meade, MD
DiscoveryProductionBates^00000663 00000771 (109pages),
mcludmgPrelhninary Inquiry [Unclassiftedj
TCmefy^thDISAand CCIU to discuss web analysis

4JanU

TCwentTDYtoFortDrumtomeefy^thyyitnesses

5Jan11

DC subnuttedmemorandumtoCW4Averhartrequesting change ofthe
PFC Manning's classiftcation and assignment
Prosecutionrespondedto DC notiftcation under MRE 505(h)

30Dec10
3-Jan-II

5-Jan11
57-Jan11
9JanI1

TC TDY to FortDrum to meefy^th witnesses

9Jan-lI

DC emails speedytrial requestto TC

lOJanll

DC submittedadiscovery request

lOJanll

TC reviewed all ofthe classifted documents requested by the SecArmy
ARI56team
TCmetwitfiDISAandOGAl

11-Jan-II
12-JanII
13Jan1I
13Janll
13Jan11
14Janll
I4-JanI1
14Jan11
14Jan-11

TCrnet with CCIU and picked up discs

DC requested CAPTMoorereplaceCOLBenedek as fbrensic
psydiiatristassignedtotheDefenseteam
DC requested speedytrial and submittedRCM 305(g) requestto
SPCMCA
TCrequestedArmy G-2 grant RCM 706 members, TC team and court
reporter, DC team,Artide 3210, and COLMalone TS-SCI securify
clearances
DL^mfbrmedTCthatONCIXwantedtomeettodiscussONCIXplans
to compileadamage assessmenL Coordinatedmeetingsy^thONCIX
to discuss ONCIX charterregarding damage assessments
DiscoveryProductionBates^00000772 00000851 (80pages),
induding 15-6 Investigation [Undassiftedj
SPCMCAappoinfed expertininfbrmation awareness fbr Defense
SPCMCAapprovedDefense requestfbr expertmfbrensic psychiatry
(CAPTMoore)
SPCMCAexdudedtfieperiodfrom17DecI0untiI14JanIIas
excludable delayunder R.C.M.707(c)in an accounting memorandum.
SPCMAacknowIedged the Defense'srequestfbr Speedy Trial

34311

19-JanlI

DC submittedadiscovery request and request fbrpreservation of
evidence
TC requested Original C1assiftcationAuthority(OCA)review by DoD

19Jan11

PFC Manning submitsArtide 138 complaint

21Jan11

SPCMCAdemedDefenseRCM305(g)request

21-JanII

31Jan1I

TCmety^tfiCCIU,FBI,andEDVAfbcusingonfbrensic update and
y^tfi additional 2/lOMTN witnesses notpreviously available; TC
receivednotiftcationfromHQDAG2thatadditiona1 infbrmation was
needed ofRCM 706 board members to process their eQuip apphcations
TCemailedRCM 706 boardmembers advisingthat clearances are
expedited andreadonrequfrementsfbllow in Crystal City,VA.
Estimation is read onin2weekswithRCM 706 restartthefblloyying
week
TCnotiftedDC,IO,and other necessary parties thatthey are readyto
schedule theirindoctrinationfbr clearance purposes; updated the 10
withthe cun^ent status oftheArtide 32 delay
TCmefwithFBIandDlAinreference to investigation, Garani video,
and CIDNE background
TCmetyyitfnDOJ,y^tfiDOStogivecaseupdate,y^tfiIRTFandFBI;
TC worked on spedal security instmctions fbrthe RCM 706 inquiry
All RCM 706 board members granted securify clearance (TS-SCl) and
read-on(SCI);dviIianDC(CDC), Mr. Coombs, granted interim TSSCI clearance
10 is read-on fbr TS-SCI clearance

IFeb-11

CPTBouchard, DC, is read-on

2Febll

TCmetwith ONCIX to understand the damage assessmentprocess and
how ONCIX was proceeding
SPCMCA orderedRCM 706 to resume witha4week suspense.
SPCMCAissuedaprotective order fbr classified infbrmation, requfred
the board to interview PFC Manning inaSCIF,and ordered the board
to compIeteaDC requested comprehensive neurological examination to
includeaCATscan
CDC,Mr.Coombs,read-on

I9Jan11

21Jan-IT

25Jan-1I

26Jan-11
27Jan11
31Jan11

3-FebII

3FebII
3-Feb-II
4Feb-Il
7-FebI1

TCmetwith OSJA. TC worked y^thOCAsto get disdosure authorify
fbr Defense
TC reviewed draft SecArmy AR 15-6
DCrequestedtfiatCAPTMooremonitortfieRCM706board.DC
notifted RCM 706 board thatthe4week suspense was aspirational and

34312

7-8FebII
8FebI1
9-Feb11
9Febll

the boardshouldfeel free to take the tune necessaryto conducta
thorough and complete examination, and thatanyrequestfbr an
extension oftime bythe board would undoubtedly begranted
TCddiveredallied documents to RCM 706 board. Boardmembers
signed protective order
TCmetwitfiTCAP
DiscoveryProductionBates^00000852-00001049(I98pages),
mdudingMedicalRecords [Undassiftedj
Discovery ProductionBafes^00001050-00001051 (2pages),
induding CertiftcateofService-to Liberty TDS [Undassiftedj

9FebIl

TCreviewedlist of approved cables provided by DOS

9I1Feh

lIFebll

Dr. Sweda coordinated y^thTC/DC. Proposed schedule of
undassiftedinterviewy^thPFC Manning on16FebI1 atMCBQ
followed bytestmgonI7FebI0atMCBQ. TC advised working on
obtainingaSCIFonFortBdvoirfbrlMarlOfbrthe classifted
interview ofPFC Manning
TCmetwitfiJIEDDO
^

14-Feb11

SecArmy ARI5-6 Investigation completed

ir

SPCMCAexdudedtfieperiodfroml4January2011untiII5Feb11as
exdudable delayunder R.C.M.707(c)in an accountingmemoranduni.
SPCMCAacknowIedged the Defense'srequestfbr SpeedyTrial
15Feb-11 TCmetwith CCIU fbcused on exaniiriing unallocated space on PFC
Manning's media. TCadvisedlOthatRCM 706 boardhad3MarI0
suspense date and TCantidpatedArtide 32 would be readyto begin by
I5Mar11andIast3days
I5Feb-Il DCrequestedtomeetyyitfiPFCManmngmaSClFon24Feb10
15Feb11

16Feb11

DC submittedadiscovery request

16Feb-U

RCM 706 board convened

17-Feb-II

DC submittedmotionto compel discovery

18-FebII

DC requested appohitmentofneuropsychologistfbr Defense

18Feb1I

DCrequestedTCto expedite MCBQ gate escortprocessing so PFC
Maiming's mother couldhave moretimeto visithim
TCrequestedassistanceofONCIXfoobtainindividual agency damage
assessmentsfromagenciesfromwhom ONXIC requested input

I8-Feb11

34313

21Febll

22-Feb-ll
24Feb-11
25-Feb-II
25Feb30
Mar-U
25Feb-II
26FebI1
25 27-Feb
11
28Febll

DC requested TC to anange fbraSCIF to be available fbr DC to meet
y^th PFC Manning. DC advisedneedingI4days notice to purchasea
reasonably priced afrlinetickeL TC advised DC that ithas the DIU
SCIF available but DC had objected to using it
CENTCOM completed dassiftcationreview of2power-point
presentations
TC TDY to Char1ottesvi11e,V^ to meefy^th witnesses
DC advised TC that earliestavailabilifytomeefy^thPFC Manning ina
SCIF would be the week o f 7 M a r I I . DC further advisedneedinga
full day y^thPFC Manning. DC gave altemative dates of22-25 Mar 11
TCcoordhiatedDCandRCM706hoardSCIFhiterviewsyyitiiPFC
Manning
TCsubmittedresponse to DC motion to compel discoveryto theArtide
3210
TC met with Trial CounselAssistance Program (TCAP)and
GovemmentAppellateDivision(GAD)
TCandDC communicate regarding discovery. TCadvisedDCy^ll
give discovery as soon as receive approvals
DOS communicated to TCthatit granted authorifyto use select
classifted infbrmation at trial so long as itremained classifted; TC met
y^th civilian criminal law expertregardingchargingArticle 104, UCMJ
andyvitfiOSJA.

1-Mar11
2-Mar11
3-MarII

Additional charges prefened; TCmefy^th ONCIX fbrupdate and y^th
ODNI
PFCManning served y^thnew charge sheet andArt 138 response
TCmefy^fhDOSfbcusing on possible discovery and completion of
fbrmal dassiftcationreviews; TCmefy^thlNSCOMfadhties manager
to tour SCIF fbr RCM 706 board, indudinghowto provide PFC
Manning the most privacy permissible in the building

3Mar11

4-Mar-ll
5-Mar-ll

7Mar1I
8-Mar-U

DC requested tomeet yyith PFC Manning inaSClE befbre the RCM
706 board interview. RCM706schedu1edatentativeinterviewyyith
PFCMannmgonllMar11(Friday)maSCIF.TCadvisedtfiat
interview of accused in SCIF should take place onaSaturdaywhenno
workers would be in the area
TCmetwithDOJ to discussArt104andfedera1 law andmet y^th the
SPCMCA
DC requestedhis meeting y^thPFCManningtake place onl1-12Mar
I I with alternate dates of25-26 Mar 11. TCadvisedhad to conftrm
with securify detail and wouIdknow7Mar 11
DC requestedhismeefmgy^thPFCManningtake place on25-26 Mar
11. TC prepared to move PFC Manning onI1-I2 Mar or 25-26 M a r l l
Discovery ProductionBates^00001052-00011448(10397 pages),
induding35FTRNPOI and Quantico Art 138 Response [Undassiftedj

34314

8-Mar11

DC requested appointment ofmitigationexpertto Defense team

8-Mar1I
8Mar-11

TCmdwithOGCODNItodiscussdiscoveryanddassiftcation
review ofintelinklogs
RCM 706 boardrequestedtointerviewPFC Mannmg on26 Mar 11

lOMarll

Defense submittedArt138rebutta1

Il-Mar-11

TC met y^thOGA2 to discuss discovery and dassiftcationreviews

14-Mar-ll

RCM 706board submitted extensionrequestwithaproposed suspense
of29AprII

14Mar11

TCsentrequests fbr approval to disclose classified mfbrmation to the
DefensefromDAG2,DOS,ODNI,andOGA2
TCadvisedDr. Sweda thatRCM 706 boardinterviewofPFC Manning
couldn't take place on26 Mar 11 because DC is meeting yyithhim on
that date. Proposed2Apr 11 as an altemate date. RCM 706 board
scheduledanMRlandneuroIogicalexaminationfbrPFC Manning on
23 M a r l l at Walter ReedArmy Medical Center(WRAMC) and
scheduled the boardmeetingy^thPFC Manning on9Apr 2011
TCprocuredDCaneuropsychologist

14-Mar-ll

15-Mar-II
I6Mar11
18-Mar1I
18Mar-II
18Mar11
18Marll
18Marll

TCreceiyedunclassifted dassiftcationreviewfbr Apache video; TC
mety^tfiCCIU,EDVA,andFBI
Original charges dismissed. SPCMCAdfrededArtide32IOto
investigafelMar I I charges.
SPCMCAapprovedR.C.M.706BoardExtensionRequestanddfrected
fhe Board to complete its work by 16Apr 11.
SPCMCAexdudedtfieperiodfrom15FeblluntiII8Mar11as
exdudable delayunder R,C.M.707(c)inanaccountingmemorandum.
SPCMCAacknowIedged the Defense's requestftor Speedy Trial
TC requested dassiftcationreviews from the fbllowing agencies or
departments:CENTCOM,CYBERCOM,lNSCOM,ODNI,DOS,
DISA, OGAl, 0GA2andS0UTHC0M
IRTF completed line by-line review of chat logs to send to appropriate
OCAs

20Mar-II

SPCMCAapprovedRCM 706 board delay bufy^than earlier suspense
ofI6Apr11

21-Mar-ll

TCsubmittedRequestfbrConsentto Disclose Classiftedlnfbrmafion
to Defenseto DISAandDIA

23-Mar-II

PFC Manning underwent anMRI and was seen byaneurologist

23Mar11

TC received Secretary oftheArmyARI56mvestigation

34315

24-Mar-ll

OGAl authorized the disdosure of charged documents

26Mar-I1

DCmety^tfiPFCMannmgafINSCOMSCIFfbrpreRCM706
hiterviewmeeting

28-Mar-ll

WalterReedAMHpsychologydepartinentcontactedtfiepsychoIogy
consultantto the Surgeon General in an attompttolocatea
neuropsychologist fbrthe Defense team
DOS authorized disdosure ofdiscovery

29-Mar-ll
29Mar-II
30-Mar-ll
31-Mar-ll

Potential neuropsychologist fbr RCM 706 board identifted, but not
available untilllApril
TC met y^thMDW securify

4-Apr-II

TC conduct walkthrough ofFort Meade courfroom; DC requested PFC
Manning's unitprovideanew ACU fbr PFC Manning
TCmetwitfiDOJ

5AprI1

SPCMCAappointedneuropsychologistfbr Defense

5-Apr-ll

SPCMCAdenied Defense request fbrmitigation expert

5-Apr-II

TCmetwitfiCCIUforeviewtfieCClUcaseftle,witfiJ6,MDWto
discuss computer systems fbr discovery, and y^th ODNI, OGAl,
0GA2,D0D,and OTJAG
TC submits secondrequestto OGAl fbr authorityto disclose classifted
infbrmation to the defense; TC met y^th CCIU to reviewthe CCIU case
ftle
Discovery ProductionBates^0001I449-0001I462(I4pages),
mdudingArt 138 Response [Undassiftedj
TCmetwitfiCCIUforeviewtfieCCIUcaseftleandy^tfiDOSto
deliver dassiftedmaterial
TC met at Fort Meade courfroom to discuss constmctionreqitirements

6Apr11
7-Apr-ll
7Apr11
8Apr11
9AprI1
9Apr11

Discovery ProductionBates^000I1463 -00011573 (111 pages),
indudingArt 138 Response [Undassiftedj
RCM 706 board interviewed PFC Manning

lOAprll

PFC Manning ftledArt 138 complaintto the Secretary ofthe Navy

1I-Apr-1I

TCmetwitfiCCIU1,CCIU2

I2AprI1

DiscoveryProductionBates^000II574-000I27II(II38 pages),
induding Securify Classiftcation Guide, OMPF,Enemy Infbrmation
[Unclassifted^

34316

I2-Apr-1I
12-Apr1I
15Apr-11

15Apr-1I
I8-AprII
18AprII
I9Apr11

20Apr-II
20AprII
20-Apr-Il
22-Apr-Il
22-Aprl1

24-Apr
Utiiru21
Junll
25Apr11

25-Apr-ll
26Aprll

Prosecutionrespondedto Defense discoveryrequestsdated29Oct10,
1Nov10,I5Nov10,8Dec10,10January2011and16February2011
TCmetwithDOJ to discuss discoveryissues,proservationrequests,
and pmdential searchrequests
RCM 706 board advised TC thatthe Boardreportwas 98^ complete
but the Board wanted an additional week to meet, review, and ftnalize
thereport. RCM 706 hoard submitted extensionrequestfbr22April I I
suspense
SPCMCAapprovedRCM706 board extensionrequest
Discovery ProducfionBates^000I27I2-00012720(9pages),
indudingArt 138 Response [Undassiftedj
TC met y^thDC3 to discuss capabilities
TCmefy^thFBI to coordmate review ofpaperftleandsubmitteda
requestto the FBI to reviewftles relevantto PFC Manning; TC met
y^th OTJAGhireference to handlhig, use, or discovery of classifted
infbrmation
PFC ManningfransfenedfromQuantico to the JomtRegional
ConectionalFacilify (JRCF), Fort Leavenworth, ^^^sas.
DC requested expert neuropsychologistnear Fort Leavenworth
TCmefy^thNationalMediaExpIoitation Center (NMEC) to leam
whatthey do andhowtfiey could assist
The RCM 706board submitted its report
SPCMCAexdudedtheperiodfroml8Mar11unti122Apr20Ilas
exdudable delayunder R.C.M.707(c)hianaccountingmemorandum.
SPCMCAacknowIedged the Defense's requestfbr Speedy Trial
WLreleased 765 alleged classifted Guantanamo Bay detainee
assessmentbriefs(S^,9,Cll)
TC requested delay ofArtide 32 investigation until the earlier ofthe
completion ofthe OCADisdosure Requests and OCA Classiftcation
Reviews or25 May 11,requested the period between22Aprand25
May Ilbeexdudibleddayunder RCM 707(c), andstatedTCwould
updatetfieSPCMCANLT25May11
TCmety^th CCIU to coordinate fbr speciftc screenshots and y^th
ODNI to pickup hiteragency documents
DC opposed TC exdudable delayrequest, requested the SPCMCA-in
orderto avoidArtide 32 delay-to dfrect either substitutions or
summaries fbrreIevantdassiftedinfbrmation,requestedDC be allowed
to mspectall unclassified infbrmation discoverable under RCM 405(g)
and701(a),andrequestedTC arrange DC interview ofI3 CID
y^tnesses be provided to DC to avoidanydelayin theArtide 32

34317

27-Apr-I1
27-29-Apr
-II
28-AprII

TCmefy^thJI,MDW to discuss MDWjurisdictionand with planners
fbrOPLANBRAVO
TC reviewed FBI investigative ftle relevant to PFC Manning
0GA2 approved discovery disdosure

29Apr11

SPCMCAapproved TC request foradelay ofArtide 32 investigation

4-May-II

SPCMCAapprovedDefense's requestfbr expertinneuropsychology
(Dr.PatrickArmistead-Jehle)
TCrequestedfromOGAlasecond dassiftcationreview and approval
to disclose dassiftedmaterial to the Defense
TCmetwitfiDODOGC,OTJAGandDOJmreferencetoDOD
pmdential searchrequest
TCattendedmeeting atFort Meade courtroom to discuss renovations

6-MayI1
lOMayll
II-May-lI
12-May-ll

DiscoveryProductionBafes^0001272I 00012924(204pages),
indudingArt 138 Response [Undassiftedj
I2-May11 SPCMCAexdudedtfieperiodfrom22Aprllunti112MaylIas
exdudable delay under R.C.M.707(c)in an accounfing memorandum.
The ConveningAufhorify acknowledged the Defense's request fbr
SpeedyTrial
I2-Mayl1 TCmetwithFortMeade,OSJA2andy^thMDW securify
I3-MayI1 Defense submittedadiscoveryrequest
16-May-II

TCmety^thOTJAGandOGA2 to discuss dassiftcationreview of
unclassifted CID infbrmation
I 8 M a y l 1 TC met atAndrewsAfr Force Base courfroom fbr courtroom visit; TC
reviewed FBI investigationfilesrelevant to PFC Manning
19-May-ll TC received an email from 0GA2y^th OCA completedreview of chat
logs
20-Mayll Federaljudges begin issuing disclosure and protective orders goveming
materialrdated to the court-martial
22-May-ll resubmitted its secondrequestto delay Artide 32 investigation until
the earlier ofcompIetionofOCAdisdosure requests and classiftcation
reviews or 25 Jun I,exclude period between22 A p r i l and restart of
theArtide 32 as exdudable delayunder RCM 707(c), and stated TC
would provide SPCMCAan update NLT25JtmII
22-May-II TC requested 0GA2 to reviewundassifted CID case ftle
23-May-II

TC mefyyith 0GA2 to ddiverundassiftedinfbrmationfbr
dassiftcationreview; TCmetwith TCAP and GAD discussing
pmdential searchrequests

34318

24May-11 Defense objected to prosecution'srequestfo delay Artide 32
investigation
24-May-ll TCmefy^thDOS to detemiine fiill extent ofDSS law enfbrcementftle
25May11 TC met withDSS to discuss sensitive cable andreviewofDSS ftles fbr
discovery
25-May-ll DC requests fbrensic image ofallmediaandacopy ofallgovemment
digital fbrensic reports
25-May-I6 TCsendspmdentiaIsearchrequeststoDIA,DOD,DOS,NSA,ODNI,
ONCIX,FBI,DOJ,EDVA,U.SAttomey,SoutfnemDistrictofNew
Augll
York, DISA, and OGA^Imemorializes its requests fbrOGAto search,
preserve, and disclose any material relating to court-martial;
26-May-II SPCMCAapprovedprosecution'srequestfbradelay ofArtide 32
investigation
26May-I1 MDWSJAfbrwardedprosecutionrequestfbrsecurifyexpertand
requestto disclose Secretary of the Army 15-6
31May1I TCmetwitfiOGC,GIandwitfiOMCderk'so^cetodiscuss
discovery processes and programs
IJunll
TCmetwitfiODNIandwitfiOGAl
3-JunlI

TC met yvith CCIU anday^tness

3Jun11
5JunlI

TC met withDOS to discuss pmdential searchrequest and y^thUSN
prosecution ofPOIMartin (national securify case)
TCdevelopedasystem tofrackProtectedDocuments andApprovals

6Jun11

TCsubmittedpmdential searcbrequestto DOD

7Jun1I

TC met withEDVAandDOJ to review all search warrants, 2703(d)
order, andgrand jury retums,y^thOTJAGregarding handling, use, or
discovery of classifted information, and with planners OPLAN BRAVO
TCmetwitfiDOJ

8Jun-ll
8Junll
9Junl1
9JunI1

9-22Jun11
lOJunll

TC met y^thHQDAclassiftcationexpertto review all unclassifted CID
ftlesandwitfiOGAI,OGA2,DOJ,ODNI,OTJA^andDOD
Discovery ProductionBates^000I2925-000I2933 (9pages),
indudingArt 138 Response [T^ndassiftedj
TCmetwith CCIU to receive copy offbrensic evidence, loose hard
drives, specialized program, and fbrensic reportand with planners fbr
OPLANBRAVO
TC coordinating DC visitto PFC Manning at JRCF to include classifted
discussions
TCmetwithDOJ and y^th Open Source Centerto discuss approvals;
DC requested TC detail actions taken to obtain investigations

34319

conducted hy DOD, DOS, DOJ, and otherintelligence agencies
13Jun-I1

TC met y^th ONCIX to receive update brief

17-JunIl

SPCMCAexdudedtfieperiodfrom12MayIIunti117Jun20IIas
exdudable delayunder R.C.M.707(c)in an accountingmemorandum.
SPCMCAacknowIedged the Defense's requestfbr Speedy Trial
TC received additional discovery documentsfromCID

17-Jun1I
19JunI1
20Jun1I
2IJunlI
22-Jun-II

TC developedaDefenserequestfracking system, andadiscovery
fracking system
TCmetwitfiOSJA
TC attendedameeting atFort Leavenworth to assistwithmovement of
PFC Manningto TDS offtce andmety^thOGA2 to discuss use request
SPCMCAapprovedfadlify and storage ofclassifted mfbrmation

SPCMCAissuedProtective Order goveming law enfbrcementsensitive
infbrmation and other sensitive mfbrmation
22Jun11 SPCMCAissuedProtective Order goveming Secretary oftheArmyAR
15-6 investigation
22Jun-11 TCattendedameetingto arrange fbr an emergencyreplacement escort
fbr PFC Manning'smovement
23-Junll TC submitted fbllowuprequeststoOCAapproval of charged
documentsto:DAG2,DLA,FBI,andOGAl
27-Junll TCsubmitteditsthfrdrequestfbr delay ofArtide 32 mvestigation until
the earlier ofthe completion ofthe OCADisdosure Requests, OCA
dassiftcationreviews, authorization to disclose protected unclassifted
mfbrmation, and the final review of^the CID case file bythe NSAand
OGA or 27 Jul 11,requested the period between22Apr 11 and the
restart oftheArtide 32 be exdudable delayunderRCM 707(c), and
statedTCwouldprovideSPCMCAanupdateNLT25Ju111
28-Jun-lI TCmefy^tfiDIAandy^tfi OSJA; TCrequeststoreview FBI
investigativefilesrelevantto PFC Manning
29Jun1I DC objected to prosecution's request to delay Artide 32 investigation
22-Jun-Il

29JunII
30Jun11
lJul-II
5JuI-ll

TC metwithDIAfbcused on pmdential searchrequestand with
OTJAGregardinghandling, use, or discovery of classiftedinfbrmation
Discovery ProductionBates^000I2934-0002I363 (8430pages),Sec
Army 15-6 [Undassified^
TCreviewedHQDArecordsresponsiveto pmdential searchrequestto
DoD butnotTS-SCIrecords responsiveto pmdential searchrequest
SPCMCAapproved TC requestto delayArtide 32 mvestigation

34320

6Ju111

DC requested additional funding fbr expert in computer forensics

6-Ju1-U

TCmetwithDIAandyyifhMDWstaffregardingsecurifyprocedures
andrespondingto outside organizations
CDC and TC team worked on encryptionissues regarding CDC email

618Ju1
11
7Ju1-11
7-Ju1-2
Augll
8-JuI-ll
IIJuIII
12-JuI-ll
13-Jul-Il
14Ju1Il
14Ju11I
I8Jul-11

TC met y^th ODNI to discuss intelink logs with the infbrmation
technology division and the pmdential searchrequest
DC requests additional funding for digital fbrensic experts. TCteam
works confracting/funding issues
DC, CPTTooman, received securify clearance
TCreviewedrecords responsive to the pmdential searcbrequestto
0GA2
Prosecutionrequesfed dassiftcationreview ofintelinkpassportaccount
fromODNI
SPCMCAexdudedtfieperiodfrom17JuniIuntill3JuIIIas
exdudable delayunder R.CM. 707(c)in an accountingmemorandum.
SPCMCAacknowIedged the Defense'srequestfbr Speedy Trial
TCattendedameetingtoobtainarecord oftrial fbranational securify
case
^
ONCIX notifted TCthatit will requfre authorizationfromother
Govemment agencies to retrieve the individual agency assessments
TCmefy^th planners fbr OPLAN BRAVOtoconductavulnerabilify
assessment

I9JuI11

TCmetwitfiIOvuhierabiIifyteamandwitfiOGC,DoD,and OTJAGto
discuss pmdential searchrequests

20Ju1II

TCmefy^thFBI to discuss obtainingacopy ofmainFBIftleto
conduct Brady review
TCmetwithDOJ fbr case update and withNMEC to discuss classified
infbrmation
TCsubmittedits fburth delay ofArticle 32 investigation until the earlier
ofthe completionofthe OCADisdosure Requests, OCAdassiftcation
reviews, authorization to disclose protected unclassifted informations
and theftnalreviewofthe CID caseftlebythe NSAand OGAor 27
A u g l l , requested the period between22Apr11and the restart ofthe
Artide 32 beexdudib1edeIayunderRCM707(c)andstatedTCwouId
provideSPCMCAy^tfianupdateNLT25Aug11
DCobjectedtoprosecution'srequestfbrdeIayofArtide32
uivestigationandrequests speedytrial

22-Julll
25Ju111

25Ju11I
25Ju1-11
25-JulIl

Discovery ProducfionBates^00021364-00024382(3019pages),
induding CID infbrmation [Undassiftedj
DiscoveryProductionBates^000366I8 00036802 (185 pages),
induding CID infbnnation [Unclassifted^

34321

26-JuIlI

SPCMCAapproved TCrequestfbradday ofArtide 32 investigation

26JuIlI

DC advised TC that DC expert, Mr. Stmttman, requfredasecurify
clearance
DC requested assistance y^th encrypted CD ofdiscovery

28JuI1I
28-Ju111

29JuIII

TCmdwitfiFBItodiscussobtammgacopyofFBIcaseftlefbrBrady
review; prosecution submits additionalpreservationrequestto FBI
TC submitted updated requests fbr classification reviews to: OGAl,
CENTCOM,DOS,INSCOM,ODNI,andSOUTHCOM
TCmetwithEDVA

29Ju1-1I

Prosecutionpmdential searcbrequestto DoD distributed

I-Aug-I1

TC received NDAsigned by PFC Manning

2-Aug-II

DiscoveryProductionBates^00036803 00036803 (1 pages),
induding CID mfbrmation [Unclassifted^
TCmetwith security expert to review classifted fbrensic reports fbr
equity holders
DC requested three laptop computers fbr Defense securify experts
durmgRCM706
DC requested expert infbrensic psychiatry (Dr. Grieger) fo replace
CAPTMore
TCmetwith OGAl fbr documentreview

28JuIII

2-Aug-II
3-Aug11
3-Aug11
3-Aug-II

resubmitted an updated request fbr dassiftcationreview from
SOUTHCOM;TCsubmittedrenewedrequests fbr authorifyto disclose
dassifted mfbrmation to the defensefromthe FBI,DA-G2andDIA
5-Aug11 TC requested consent from FBI to disclose classified infbnnation in
discovery
6-Aug-II DC requested repurchase computer hardware and software fbr
defense fbrensic experts
7-9 A u g l l DC requested Cyber Agents, Inc. be appointed Defense expert assistanL
Discussions betweenparties regarding govemment authorifyto
designateaconfractor as anexpert
8 A u g l I TCmetwith OGC DOD inreferencefo pmdential search request
4-Aug-II

9-Aug-ll

Defense requested fbrensic computer expert

9Aug11

DiscoveryProductionBates^00036804 00042806(6003pages),
indudhig SecArmy 15-6 GOMORs [Undassiftedj

34322

lOAug-11
lOAug-Il

SPCMCAappoinfed substitute as Defense expertinfbrensic psychiatry
(LCDRMoulton)
SPCMCAappointedDefense fbrensic computer experts andrequestfbr
computer hardware

I0-Aug-1I

SPCMCAexdudedtfieperiodfrom13Jul11untiI10Aug11as
exdudable delayunder R.C.M.707(c)inan accountingmemorandum.
SPCMCAacknowIedged the Defense'srequestfbr Speedy Trial dated
13 Janll and the Defense's renewedrequestfbr Speedy Trial dated25
Jul 11. SPCMCA provided an accountingmemorandum
IOAug-11 TC mety^thOGAl fbrpmdentialsearchrequest1and2
llAugll

Discovery ProdudionBates^00042807-00044864(2058 pages),
mdudingPretriaIConftnementDocuments[Undassiftedj

II-Aug-U

TC mefyyith OGAl fbrpmdentialsearchrequestland2; resubmitted
renewedrequests fbr autfiorifyto disclose dassiftedinfbrmationto the
DefensetoOGAI
15-Aug11 TC submitted anadditionalpreservationrequestto FBI andrequested
thaf FBI investigativeftlesrelevantto PFC Manning begiven toTC
15Aug1I DC requestedfravelorders fbr Dr. Moulton
16-Aug-ll

TC TDY to conduct witness interviews; TC submits preservation
requestto SONY

17-Aug-ll

TCmefy^thNGAmreference to pmdential searchrequest

18Aug11 TCmetwitfiCCIUI
19-AugIl

TCmefy^thDOJl

19-Aug-ll

TCmefyyithDOS to discuss sentencing

20Aug1I

WLre1eased251,287aIlegeddassiftedDOScabIes(S12,13,CII)

22-Aug-Il
22-Aug-ll

TCmefy^thOGIand CCIU and y^thOTJAGregardinghandling, use
or discovery ofclassifted infbrmation.
reconducted witness interview

23-Aug-ll

TCre-sentrequestto disclose dassiftedinfbrmation to the FBI

24-Aug-II

TCmetwitfnJIEDDOandwitfi OGAl and CCIU fbrevidence
collection

24-Aug-ll

DC expert, Mr. Stmttman, grantedinterim security clearance

34323

25-Aug-ll

TCsubmitteditsftftfirequest fbr delay ofArtide 32 mvestigation until
fhe earlier offhe completion ofthe OCADisdosure Requests, OCA
classiftcationreviews, determinationofderivativeclassiftcations, final
review oftfie CID case ftle bythe NSA, andreleaseaufhorifyfrom
reIevantdistrictcourtjudges,or27 Sep I I andrequested the period
between22Apr1Iand the restart oftheArtide 32 investigation be
exdudable delay. The request asserted that TC would provide
SPCMCAanupdateNLT23SepII
25-Aug11 DSSprovidedTCwitfiDSSmvestigativeft1etfirough3IJuII0which
is disclosed to the Defense
25Aug-II TCmetwithDOJ and y^thTC mefyyith ODNI to receive authorifyto
obtain and disclose individual assessments
25Aug-lI TC obtained FBI ftle fbr Brady review. FBI did not authorize
disdosurey^thoutaprotecfiveorderfromthe Court
2 6 A u g I I TCmety^tfiDOS
27-Aug-ll

DC objected to TC requestto delayArtide 32 investigation

29-AugI1

8-Sep-ll

SPCMCAapproved prosecution'srequestfbr delay ofArtide 32
investigation
reconducted witness interview. DC proposedlO-20 Sep 11 fbrtheh
Ibrensics experts to review CID dassifted fbrensic reports. TC
estimatedreceiving final approvals to give CID dassifted fbrensic
evidence to defense bythe lastweekofSep 11
DiscoveryProductionBates^00044865-0004530I (437pages),
induding Military Intelligence Investigations [Classifted and
Undassiftedj
TC requested updatedrequests fbr dassiftcationreviews from:
CENTCOM,DOS,INSCOM,ODNI,OGAl,andSOUTHCOM;DoD
General Counsel advised TC thatthe Jomt Staft^isthe point of contact
fbr DoD fbrthe pmdential searchrequest
OGAl consented to disdosmg CFD case ftles

9Sep11

RCM706members

12Sepll

Final CCIU fbrensic reportprocessedfbrrelease to Defense

14Sep-lI

TCmefy^thDOS leadership to discuss ongoing dassiftcationreview
completion
SPCMCAexdudedtheperiodfrom10Aug11to15Sep1Ias
excludable delayunder R.C.M.707(c)inanaccountingmemorandum.
SPCMCAacknoy^IedgedtheDefense's 13 Jan I I requestfbr Speedy
Trial andrenewedrequestfbr Speedy Trial dated25 Jul I I .
TCsubmittedasecondrequesffbrOGAl dassiftcationreview;TC
provided computer hardware and software requested by DC

31-Aug-ll

ISepll
7-SepII

15SeplI

16Sep11

34324

19SepIl
I9-Sep1I
20-Sep11

Discovery ProductionBates^00024383 -00024459(77 pages),
including Deleted Infbrmation [Unclassiftedj
TC had delivered two computer hard drives and softy^are to Defense
counsel to permitreview of dassiftedinfbrmation
DC requested courier cards

22Sep11

Defense submittedadiscoveryrequesffbrpreservation of allhard
drives in Tactical Sensitive Compartmented InfbrmationFacilify
(TSCIF) used during PFC Manning's deployment
TCmetwith ONCIX toreceive update

23-Sep11

TCmetwith WHMO to discussmethod of obtaining WHmfbrmation

21-Sep1I

26-Sep-ll

TCsubmitteditssixthrequested delay ofArtide 32 investigation until
fhe earlier offhe completion ofOCADisdosure Requests, OCA
classiftcationreviews, ftnal determination of derivative dassiftcations,
receipt of signed protective ordersfromthe defense, and properly
portionmarkeddassifteddocumentsbytfieNSAor27 0 d l L T C
requesfedtfieperiodbetween22Apr 11 and the restart oftheArtide 32
uivestigation be exdudable delay. The request asserted thaf TC would
provideSPCMCAanupdateNLT25 Octll
27Sep-11 DC objected to TC request fbr delay ofArtide 32 investigation
28-Sep11

SPCMCAapproved TC requestfbr delay ofArtide 32 investigation

28-Sep-II

TCmetwitfiOGAI

28Sep6
Octll

DC requested confactinfbrmation to mterview 13 govemment
y^tnesses and objected to workingthroughMr.^^gto coordinate CID
y^tness interviews
29-Sep11 TCTDYtoCENTCOM
30Sep11

DC requested repurchase automation and dassifted supphes

30ct1I

DiscoveryProductionBates^00024460
00036617(12158pages),
induding CID infbrmation [Undassiftedj
Joint Sta^advised TCthatDoDprovided all relevantinfbrmationm
response to the pmdential searchrequest
TC sentto DC federal protective orders.

30d11
40ct11

5 6 0 c t I 1 DC signed4protective orders. TCreceivedfinal CCIU ftorensic
reports andrequested approvals to disclose to DC. TC anticipated
approval/disclosure by 3-4 Nov 11 andrequestedDC to scheduleatime
fbr TC to assist DC in goingthrough voluminous reports and overview
ofTCcase. CDC advised TC he would he in Charlottesville V^ the

34325

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
USE OF FORM - Use this form and MCM, 1984,
Appendix 14, will be used by the trial counsel and
the reporter as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a verbatim record is prepared. Air
Force uses this form and departmental
instructions as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a summarized record is authorized.
Army and Navy use DD Form 491 for records of
trial in general and special court-martial cases in
which a summarized record is authorized.
Inapplicable words of the printed text will be
deleted.

8. Matters submitted by the accused pursuant to
Article 60 (MCM, 1984, RCM 1105).

COPIES - See MCM, 1984, RCM 1103(g). The
convening authority may direct the preparation of
additional copies.

12. Advice of staff judge advocate or legal officer,
when prepared pursuant to Article 34 or otherwise.

ARRANGEMENT - When forwarded to the
appropriate Judge Advocate General or for judge
advocate review pursuant to Article 64(a), the
record will be arranged and bound with allied
papers in the sequence indicated below. Trial
counsel is responsible for arranging the record as
indicated, except that items 6, 7, and 15e will be
inserted by the convening or reviewing authority,
as appropriate, and items 10 and 14 will be
inserted by either trial counsel or the convening or
reviewing authority, whichever has custody of
them.

13. Requests by counsel and action of the
convening authority taken thereon (e.g., requests
concerning delay, witnesses and depositions).

1. Front cover and inside front cover (chronology
sheet) of DD Form 490.
2. Judge advocate's review pursuant to Article
64(a), if any.
3. Request of accused for appellate defense
counsel, or waiver/withdrawal of appellate rights,
if applicable.
4. Briefs of counsel submitted after trial, if any
(Article 38(c)).
5. DD Form 494, "Court-Martial Data Sheet."

9. DD Form 458, "Charge Sheet" (unless included
at the point of arraignment in the record).
10. Congressional inquiries and replies, if any.
11. DD Form 457, "Investigating Officer's Report,"
pursuant to Article 32, if such investigation was
conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

14. Records of former trials.
15. Record of trial in the following order:
a. Errata sheet, if any.
b. Index sheet with reverse side containing
receipt of accused or defense counsel for copy of
record or certificate in lieu of receipt.
c. Record of proceedings in court, including
Article 39(a) sessions, if any.
d. Authentication sheet, followed by certificate
of correction, if any.
e. Action of convening authority and, if appropriate, action of officer exercising general courtmartial jurisdiction.
f. Exhibits admitted in evidence.

6. Court-martial orders promulgating the result of
trial as to each accused, in 10 copies when the
record is verbatim and in 4 copies when it is
summarized.

g. Exhibits not received in evidence. The page
of the record of trial where each exhibit was
offered and rejected will be noted on the front of
each exhibit.

7. When required, signed recommendation of
staff judge advocate or legal officer, in duplicate,
together with all clemency papers, including
clemency recommendations by court members.

h. Appellate exhibits, such as proposed instructions, written offers of proof or preliminary
evidence (real or documentary), and briefs of
counsel submitted at trial.

DD FORM 490, MAY 2000

Inside of Back Cover

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