Title: Volume FOIA 106

Release Date: 2014-03-20

Text: 34326

Volume 106 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

34327

460ct1I

5-Oct-ll
60ct11

week of3Nov11 and thathe wanted defense fbrensic experts to have
time to reviewthe dassifted CID fbrensic reports priorto the TC/DC
meeting. DCrecommendedholdmgthemeeting9-I0orI7-18Nov 11
resubmitted preservations requests to2^^ Brigade Combat Team,10*
MounfainDivisionfbrtheafreprovided equipment (TPE) hard drives
used in the TSCIF during PFC Manning'sdeployment, CID andFBI fbr
computerfbrensic evidence held or obtained duringthe investigation of
the accused, andARCENT fbr TPE used during PFC Manning's
deployment
TC met with TCAPmCharIottesviIIe,VA, to discuss discovery,Art104

7-0ct11

TC requested to review damage assessmentsfrom:DOS, ODNI,
0GA1,0GA2,andtfieFBI
resubmitted updated requests fbr dassiftcafionreviewfrom:
CENTCOM,DOS,andSOUTHCOM
TCsubmittedrequestto use dassifted infbrmation(OGAI)

80cfII

TC requested access to any damage assessmentsfrom0GA2

llOctll

12-Oct-ll

TCrequestedname and contactinfbrmationfbr each organization that
contributed to OONCIX damage assessment
DiscoveryProductionBatesi^00045302 00045581 (280pages),
induding CID infbnnation [Undassiftedj
TCmdwitfiFBLEDV^andDOJ

130ct11

Defense subrhittedadiscoveryrequest

130ct11

TCmefy^thDOJandsentupdatedrequestftordassiftcationreviewfo
ODNI
DC expert, Mr. Stmttman, granted SECRET dearance

60ct11

120ct11

130ct11
140ct11

140ct11

SPCMCAexdudedtfieperiodfrom15Sepl1to140ct11as
exdudable delayunder R.C.M.707(c)in an accounting memorandum.
SPCMCAacknowIedged the Defense'srequest fbr Speedy Trial on 13
Janlland renewed request fbr SpeedyTrial dated 25 Jul 11.
TCmefy^thOSJAfbrconceptplanfbr Defense case brief

140ct11

TC received contadinfbrmationfrom ONCIX ofeach Government
agencythat contributed to ONCIX damage assessment

150ct11

TC begins to mgestvoluminous discovery

170ct11

TCrnefy^fhEDVAand worked on organizfrigOCAbhider and
fracking approvals

34328

180ctI1

TCsubmittodupdatedrequestfbrdassiftcationreviewto CENTCOM

190ct11

TCmefy^fhDHS, retrieves dassiftedresponse and discloses itto
Defense
Discovery ProductionBates^00045582 00046073(492pages),
induding CID mfbrmation [T^ndassiftedj
TC metwith 0GA2 to review dassiftedinfbrmation

20Oct11
210ct11

25 0 c t I 1

resubmitted its seventhrequesfed delay ofArtide 32 investigation
until the earlier ofthe completion ofOCADisdosure Requests, OCA
dassiftcationreviews, andreceiptofprotective orders from the defense
or28Nov1LTCwouIdprovideSPCMCAanupdateNLT23Nov11
DC objected to TCrequestfbradelay ofArtide 32 uivestigation

25 0 c t I I

TCsubmittedrequestto review damage assessments to DIAandOGA2

26 0ct11
260d11

resubmitted renewedrequestfbr DA G2 approval to disclose,
dassifted information to the Defense
TC submittedrequestto review damageassessmentto CYBERCOM

270ctll

SPCMCAapprovedTC requestto delayArticIe 32 investigation

270ctI1

TCpurchased5courier bags, printer, shredder, and open/dose magnet
and provided SF 704 and courier cards requested by DC.

27 0ct8
Novll
28 0ct11

TC/DC arrangedfravellogistics fbr DC experts 7-9 Noy 11

25 0ct11

1-Noy-11

TC receives notice that INSCOMauthorized the Defense andPFC
Manningto receive dassifted infbnnation
TCmeeting^ftill dress rehearsal fbrDefense case brief

1-Novll

TC began contacting agencies on the listprovided by ONCIX

3-Nov-ll

TCmety^thDOJtodiscuss similarfederalcases

4-Nov-ll
4-Nov-ll

Discovery ProductionBates^00046074-00375129(329056pages),
induding CID Forensic Reports [Undassiftedj
TC received update on status of damage assessmentfromCYBERCOM

7-Nov-ll

TC submittedrequestto CYBERCOMto use damage assessment

8-Nov-ll

Discovery ProductionBates^00375130-00375182(53 pages),
induding Military Intelligence Investigation [Undassiftedj

34329

8-Nov11
8Nov11
8-Nov11

DiscoveryProductionBafes^00376954 00378175 (1222pages),
induding Charged Documents, C3 Report, Classiftcation Review
[Classiftedj
Discovery ProductionBates^00378176-00378176(1 pages),
induding V:olumes.txt[Undassiftedj
Discovery ProductionBates^00378177-00378624(448 pages),
undudrngMilitary Intelligence Investigation and Classifted CID
infbnnation[CIassiftedandUndassiftedj
TCpresentedDefense case briefs DC requested similar briefhig fbr PFC
Manning on18Nov1I

8/9NOV
11
9Nov11

DC requested additional software fbrthe Defense fbrensic experts

15-Nov-ll

DC submittedadiscoveryrequest

I6N0VII

DC submittedadiscoveryrequest

16-Novll

Trial Counsel requested the SPCMCAtorestartfheArtide 32 no earlier
than16Dec Hand furtherrequested the SPCMCAto exclude the
period between16November2011and16December 2011 as
excludable delayunder R.C.M.707(c)in order fbrthe Govemmentto
obtain the ftnal dassiftcationreviewfrom an OCAand to provide the
command yyith time to execute OPLAN BRAVO.
DC objected toTC requestto delay Article 32 and toTC proposed start
date. DC proposed an earher date of12 December 2011. The Defense
also objected to any delay being excluded under R.C.M.707(c)and
instead requested the time be counted againstthe Govemment fbr
Speedy Trial andArtidelOpurposes.
SPCMCAapproved the Govemment'srequest fbrrestart oftheArtide
32 NLT16Dec 11 in an accountingmemorandumand excluded the
period from 22Apr 11 unti116Dec 11 as exdudable delay under
R C M 707(c)
SPCMCAissued special instmctions to theArtide 32 investigating
ofricer
TCsubmittedarequestto review damage assessments to DEA

I6N0VII

16-Nov-ll

I6N0VII
I6N0VII

DiscoveryProductionBates^00378626 00378649(24pages),
including CID infbnnation and cIassiftcationreview(s)[CIassifted and
Undassiftedj
17-Nov11 DiscoveryProductionBates^00378650 00384256(5607pages),
hiduding SecArmy 15-6 GOMORs [Undassiftedj
17-Nov-ll TC TDY to Fort Leavenworth, ^S fbr Defense case briefwithPFC
Mannmg
17and22 DC advises TCteam that DC experts requfre "evidenceftnder"and
"chrome analysis"
Novll
17Novl1

34330

18Nov11 TCpresentedDefense case briefto Defense team andPFC Manning
22Nov11 NGA confirmed to TC they have responsive pmdential searchrequest
documents ready fbrpick up
23-Nov-ll Discovery ProductionBates^00378625-00378625(1 pages),
indudingDAFonn4137[C1assiftedj
23-Nov-ll Discovery ProductionBafes^00402272 00407990(5719pages),
mcluding SecArmy 15-6 GOMORs [Undassiftedj
23-Nov-II DiscoveryProductionBates^00407991 00409678 (1688pages),
induding CID infbrmationandDSS caseftle[Undassiftedj
27Noy-11 TC purchased toner and shredderrequested by DC
28-Nov-ll

DC requested additional computer software equipment fbr fbrensic
experts. TC metwith OTJAGinreferenceto discovery software
30NOV-11 TC requested authentication oflntelmklogs from ODNI
30Nov11
IDecll

TC began preparing witnesses fbr Artide 32 hearing

IDecll

Discovery ProductionBates^00384257-00402271 (18015pages),
induding SecArmy 15-6 GOMORs [Undassiftedj
DCftledamotionto compel production of discovery y^thArtide 3210

IDecll

TCmetwitfiCCIU

2-Dec-ll

TC received ftnal dassiftcationreviewfrom OGAl with signed OCA
declaration

2-Dec11

DC submitted witness list fbr Artide 32 investigation to 10

2Dec11

resubmitted prosecution dassiftedinfbrmation use requestto OGAl

2Dec11

SPCMCAapprovedDC requestfbr additional computer softy^are
equipment fbr fbrensic experts
DC requestedconfirmationregarding potential release of classifted
infbrmationin Defense request fbrproduction ofevidence and sealed
Defense motionfbr 405(h)(3)
DiscoveryProductionBates^00409679^004I0599 (921 pages),
induding CID information [Undassiftedj
TCteam purchased software DC experts requested on17and22 Nov
11

5Dec11
6Dec11
6DecIl
7Dec-11
7-Dec-ll

DiscoveryProductionBates^00375183 00375197(15pages),
induding SecArmy 15-6 GOMORs [Undassiftedj
DiscoveryProductionBates^00410600 00410670(71 pages),
including Enemy infbrmation, PFC Manning^s offtce work product, and

34331

c1assiftcationreview(s)[C1assiftedj
8Dec1I
8/9Dec11

9Dec11
9Dec11
9Dec11
1116
Decll
13Dec-11
13 22Dec
11
16Dec11
19Dec11
19Dec11
19Dec11
6Jan12
22Dec11

reconducted ftve witness interviews
TC worked logistics ofDefense expertfravel to FortMeade as well as
logistics fbrthe Article 32 hearing and fbr PFC Marining'sfarnilyto
attend
DiscoveryProductionBates^00375198 00376953 (1756pages),
induding CID infbrmation, Schmiedl Files, Classiftcation Reviews
[Undassiftedj
Discovery ProductionBates^00410671 00410689(19pages),
indudmg CID infbrmation [Undassiftedj
DCrequestedfransIationofavideoprevioustydisdosedbyTC
DC fbrensics experts atFort Meade
DC requestedalist of Govemmentwitnesses TCv^II produce in person
and those available telephonically; DC requested TCgrantay^tness
testimonial immunify
TCTDY to FortMeade forArtide32hearing(tfurough22Dec 11)
Article 32 investigation began.
Discovery ProductionBates^00410690-00410697 (8 pages),
induding CID infbrmation and pretrial conftnementinfbrmation
[Undassiftedj
DiscoveryProductionBates^00410698 00410701 (4pages),
induding CIassiftcationreview[CIassifted and Undassiftedj
TCteam processing DC expert expenses
Artide 32 investigation conduded

2-Jan12

TC requested meeting y^th FBI to discuss discovery

3-Jan-12

TC requestedArticle 3210 exclude as reasonable dday anytime
between22 Dec 11 and3Jan 12 thathe didnotwork on theArtide 32
uivestigation based on the federal holidays and weekends
SPCMCAexdudedtheperiodfrom16Nov11unti115Dec11as
exdudable delayunder R.C.M.707(c)inanaccountingmemorandum.
SPCMCAacknowIedged the Defense'srequestfbr Speedy Trial on13
Janllandrenewedrequesffbr Speedy Trial dated25 Jul 11
Artide 3210 sentan email excluding asareasonable delaythe days
between23 Dec 11 and3Jan 12 whenhe didnotwork on theArtide 32
investigation. He didnot soIidtaresponsefromDC.

3Janl2

4-Jan-12

34332

5-Jan-2
Feb12
6-Jan12

TC realized the DoD response to pmdential searchrequest didnot
include infbrmationfromHQDA.DoDGC advised TCto deal y^tfn
HQDAdfrectfy. TC emailed OTJAGtwicefbrupdates.
TCmetwitfiDOJ, ODNI

TC ensured all documents had beenmoved to the dosed systemand
uploaded in discovery software
10Jan-12 TC met y^thFBIandfbcusedon discovery and submitteda
memorandum to DOS detailing discovery obligations
ll-Jan-12 Artide 3210 complefedhisreport andrecommendations, induding
providmgtheSPCMCAwith an exdudable delay memorandum
12-Jan-12 DiscoveryProductionBates^00410702-004I0788 (87pages),
indudingArtide 32 investigating ofticeBsftnalreport and pretrial
conftnement recordings [Undassiftedj
12-16-Jan- DC submits depositionrequestfor OCAs through rC to SPCMCAand
12
requestingto do the depositions inFeb 12
17-Jan-12 TC reviewed FBI case file
9Jan-12

18Jan12

TCsentspeedytirialrequeststo: CENTCOM, CYBERCOM,DA,DEA,
DHS,DIA,DISA,DOS,INSCOM,JIEDDO, ODNI, OGAl,0GA2,
andSOUTHCOM
SPCMCArecommends GCM and denies DC depositionrequests

18Jan^7
Feb12
20-Jan12

DC requests more funding fbrfbrensic experts who mtend to work on
thecase8-17Feb12. TC team workmg logistics ofrequest
DC submittedadiscoveryrequest

20-JanI2

Discovery ProductionBates^00410789 00410870(82pages),
hiduding CID uifbrmation and PFC Mannit^g^s Skype logs
[Undassiftedj
DC submits depositionrequestto GCMCA;

18Jan12

23-Jan-12
27-Jan-12

Discovery ProductionBates^00410871 00411342(472 pages),
including CID Docs,ArticIe32Audio-Unc1assifted [Undassiftedj
27-Jan-12 Discovery ProductionBafes^004I1343 -00411366(24pages),
indudingManning Computer Logs, Closed session-111218
[Undassiftedj
27-Jan-12 TC responded to DC discoveryrequest dafed29 October 2010,15
November 2010,8December2010,10January 2011,16February
20I1,13May2011,13Ocfober2011,15November2011,16
November2011,and20 January 2012.
27 Jan 12 DC requested contact infbrmation fbr30CA witnesses
28-Jan12

TCreceivedresponsefromFBI on classiftcation ofdamage assessment

34333

31Jan12

DC submittedadiscoveryrequest

31Jan12

TCrespondedto DC discoveryrequest

1-Feb12

TCcompletedreviewofFBIftlerelevantto PFC Manning

3Feb12

GCMCArefened the case

3Feb-12

Courtreceived Elecfronic DocketNotiftcation

6Feb-12

DC requested coordmationftorfransportationofPFC Manningto
Defense meeting; TC/DCemai1sagreeingto23 Feb 12 anaignment
date
TCinnegotiationsy^thFBl andDOJ aboutreleasing FBI ftle to DC.
FBI refused disdosure to DC yyithoutacourt order
Telephonic RCM 802 session

7Feb12
8Feb12

16-Feb-12 DC submitted ftrsfMotion to Compel Discoveryto the Court
21-Feb-12 TC reviewed dassiftedresponsefromSocial Security Adminisfration
23Feb-12

Arraignment

2-Mar-12

DC requested limited access to SIPRNET

13-Mar-12

DiscoveryProductionBates^00411367-00412613 (1247pages),
including CID infbrmation/Attestations/PTC Visitation Logs,Audio
Logs [Undassiftedj
Artide 39(a) session began

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

12-Apr-12

Artide 39(a) session conduded. Military Judge issuedaprotective
order goveming dassifted infbnnation.
DiscoveryProductionBates^00412614 00417914(5301 pages),
induding FBI infbrmation [Undassiftedj
Email sent by then-CPT Fein stating Govemment's position onR.C.M.
701 and classifted evidence.
RCM 802 telephonic conference
DiscoveryProductionBates^004I7915 00419646(1732pages),
induding FBI infbrmation, PFC ManningA^O-S email, trial
documents, DISAand JlEDDO infbrmation[CIassiftedand
Undassiftedj
Discovery ProductionBates^004I9647-00419804(158 pages),
induding CID infbrmation, damage assessment(s), motions hearing

^

audio [TJndassiftedj
24-Apr-12 Artide 39(a) session began
24-Apr-12 Discovery ProductionBates^00419805-00445503(25699pages),
indudfriglnterim CID Forensic Reports[CIassiftedand Undassiftedj
26Apr-12

Artide 39(a)session conduded

15May-12 Discovery ProductionBates^00445504-00447091 (1588 pages),
indudingFBIinfbrmation[C1assiftedj
15May12 Discovery ProductionBates^00447092-00447392(301 pages),
incIudingAdminisfrative documents, CID infbrmation, and damage
assessment(s)[Undassiftedj
15-May-12 DiscoveryProductionBates^00447393 00447439(47pages),
mcluding Damage assessments[C1assiftedj
18-May12 Discovery ProductionBates^00447440-00447666(227 pages),
indudingFBIuifbrmation[CIassifted and Undassiftedj
18-May12 DOSDraftDamageAssessmentavailablefbrinspectiony^thTC
[Classifted y^th Spedal ConfroIMeasuresj
21-May-12 Discovery ProductionBates^00447667-00447817(151 pages),
induding Grandjury infbnnation [Undassiftedj
21-May-12 DiscoveryProductionBates^00447818-00447848(31 pages),
induding Damage assessments and CIAinfbrmation[CIassiftedj
24-May-12 DiscoveryProductionBates^00447849-00447944(96pages),
mcluding Pretrial conftnementrecordmgs and photos, CID mftormation,
and trial documents[CIassiftedj
29-May-I2 Discovery ProductionBates^00447945-00449240(1296pages),
indudhig Trial documents[CIassiftedj
30-May12 RCM 802 tdephonic conference
4Jun12
6-Jun-12

DiscoveryProductionBates^00449241 00449242 (2pages),
induding D0Edamageassessment[C1assiftedj
Artide 39(a) session began

6-Jun-12

DIAInfbrmationReview TaskForce Reportavailable fbr inspection
with prosecution [Classifted yyith Special Confrol Measuresj

8-Jun-12

Artide 39(a) session conduded

13-Jun12

DiscoyeryProductionBatesi^00449243 00449402(160pages),
induding DHS damage assessmenf[CIassiftedj
Artide 39(a) session

25Jun-12

34334

34335

26-Junl2
2-JuI-12
3Ju1-12
3-Ju1-12

3-Ju112

9Jul12

DC submitted discoveryrequest
Discovery ProductionBates^00508935-00508940(6pages), CIA
WikiLeaks TaskForce Reportavailablefbrfrispectiony^th prosecution
[Classifted y^th Spedal Confrol Measuresj
Discovery ProducftonBatesi^00449403-00449464(62pages),
induding CID infbrmation, trial documents, andDISAIogs
[Undassiftedj
DiscoveryProductionBates^00449465 00449552 (88pages),
induding CID report, damage assessment(s), andPFC Manning^s
emails [Classiftedj
TC responded to DC discoveryrequest date 26 June 2012; TC
submittedpmdentialsearchrequesttoU.S. CYBER COMMANDon
27Jun12requestfromDC
DC submitted discoveryrequest

16JuI-12

Discovery ProductionBates^00449553 -00449571 (19pages),
indudingPretrialconfmementrecordmgs and CID fbrensic report
[Undassiftedj
DiscoveryProductionBates^00449572-00449581 (10pages),
indudingDISAinfbrmation [Classiftedj
Artide 39(a)session began

19JuI12

DC submitted discovery request

20-Ju112

Artide 39(a) session conduded

27-Ju1-12

Discovery ProductionBatesi^00449793 - 00449942(150pages),
indudmgBrigEmails [Undassiftedj
RCM 802 telephonic conference

12Ju112
12Ju112

27-Ju1-12
28-Ju1-12
lAug-12
2-Aug-12
2-Aug-12
2-Aug-12
2-Aug12

Discovery ProductionBates^00449582 00449764(183 pages),
induding NGAmfbrmation[CIassiftedj
DC submitted discoveryrequest
DiscoveryProductionBates^00449765 00449792 (28pages),
induding USCYBERCOM andFBI damage assessments [Classiftedj
DiscoveryProductionBates^00449943 00479483 (29541 pages),
indudingJomfStaft/DOD/HQDA/DIAmfbmnation[C1assiftedj
DiscoveryProductionBates^00479484 00499594 [Classiftedj
Discovery ProductionBafes^00499595-00504420(4826pages),
indudmgDIAinfbrmation and other damage assessment(s)[CIassiftedj

34336

Discovery ProductionBates^00504421 -00504481 (61 pages),
including Pretrial conftnement recordings and trial documents
[Undassiftedj
2-Aug-12 Discovery ProductionBates^00504482-00505060(579pages),
indudmgDIAinfbnnation,DOSandDIAdamageassessmentsmarked
[Classiftedj
3-Aug-12 DiscoveryProductionBafes^00505061 00505183 (123pages),
induding Damage assessments and CID infbrmation[C1assiftedj
3-Aug12 DiscoveryProductionBates^00505184 00505204(21 pages),
induding CID infbrmationand various OCA documents [TJndassiftedj
3-Aug-12 Discovery Production Classifted digital evidence [Classifted y^th
Special Confrol Measuresj
3-Aug-12 Discovery ProductionNSAdocuments [Classiftedy^th Spedal Confrol
Measuresj
6-Aug-12 Discovery ProductionBafes^00505205-00505256(52 pages),
mcluding damage assessments and enemyinfbrmation[CIassiftedj
7-Aug-12 Discovery ProductionBates^00505257-00505257(1 pages),
including Intelink attestation [Undassiftedj
7-Aug-12 Discovery ProductionBates^00505258-00505808 (551 pages),
induding FBI infbrmation and variation of charged documents
[Classiftedj
10-Aug-12 DiscoveryProductionBates^00505809-00506675 (867pages),
indudingDIAinfbmiation[CIassiftedj
14-Aug12 TC responded to DCIAug 12 discoveryrequest
2-Aug12

14-Aug-12 Discovery ProductionBates^00506676 00506684(9pages),
induding Quantico mfbrmation [Undassiftedj
14-Aug-12 Discovery ProductionBates^00508691 -00508934(244 pages),
including Quantico infbrmation [Undassiftedj
16-Aug-12 Discovery ProductionBates^00506685-00508690(2006pages),
induding USCYBERCOMmfbrmation[CIassiftedj
16-Aug12 DiscoveryProductionBatesi^00509516 00511906(2391 pages),
induding USCYBERCOMinfbrmation available fbrinspection with
prosecution [Classifted y^tfi Spedal Confrol Measuresj
21-Aug-12 DiscoveryProductionBates^00508941 -00509515 (575pages),
including DIAinfbrmation[CIassiftedj
23-Aug-12 Discovery Production ONCIX infbnnation available fbr inspection at
ODNIHQ [Classiftedy^th Spedal Confrol Measuresj
27-Aug-12 Artide 39(a)session began
27-Aug-12 DiscoveryProductionBates^00511907 00514453 (2547pages),
induding Quantico emails [T^ndassiftedj
30-Aug-12 Artide 39(a)session conduded

34337

13-Sep-12

TCrespondedtoDC9and19Ju112discoveryrequests

14Sep-12

Discovery ProductionBates^00514501 00514898(398 pages),DIA
and ODNI infbnnation available fbr inspection with prosecution
[Classifted y^th Spedal ConfrolMeasuresj
Discovery ProductionBates^00519353 -00523672 (1286 pages),
induding DOS infbrmation[C1assiftedj
Discovery ProductionDoSinfbrmation[C1assiftedy^th Spedal Confrol
Measuresj
Discovery ProductionBates^00514454-00514497 (44 pages),
indudingDHS infbnnation [Undassiftedj
DiscoveryProductionBates^00514498-00514498(1 pages),
induding DHS infbnnation[CIassiftedj
Discovery ProductionBates^00514499-00514500(2 pages),
including DOE infbrmation [Undassiftedj
Discovery ProductionBates^00514899-00515842 (944 pages),
indudingD1AandCIAinfbrmation[C1assiftedj
DiscoveryProductionBates^00515843 -00519167 (3325 pages),
induding Quantico emails [Undassiftedj
DiscoveryProductionBates^00519168 00519352 (185pages),
indudhigFBI infbrmation [Classiftedj
Discovery ProductionBates^00519353 -00523672(1286 pages),
including DOS infbrmation[C1assiftedj, which was previouslymade
available fbrinspection on14Sep 12
Discovery ProductionBates^00509516-00511906(2391 pages),
induding USCYBERCOM previouslymade available fbrinspection on
16Aug12
DiscoveryProductionBates^00514501 00514898(398 pages),
indudingDIAand ODNI infbrmationpreviouslymade available fbr
inspection on14Sep 12

14Sep12
14Sep12
15-Sep-12
15-Sep-12
19-Sep12
19Sep12
19-Sep-12
20Sep-12
20-Sep-12

28Sep-12
28-Sep-12

34338

^^^^io^^^
^i^i^^^^^^8^i^^^i^^oi^0i^i^^^^^^^^^v.^^G8i^^^I^^^.^8^i^i^^
^^L^UILT^YPLEAINT^ROI^UC^ION
MJ: PFC Manning, your counsel has enteredaplea of guilfy to lesser included offenses for several of
the charges and specifications. Your plea of guUfy will not be accepted unless you understand its
meaning and effect. I a m going to discuss your plea of guUfy with you. You may wish to consult with
your defense counsel prior to answering any of my questions. If at any time you have questions, feel
free to asl^ them.
Aplea of guilfy is equivalent toaconviction and is the strongest form of proofl^nown to the law. On
your plea alone, and without receiving any evidence, this court can find you guUfy ofthe offenses to
which youhavepledguilfy.YourpleawiUnotbeacceptedunlessyourealizethatbyyourpleayou
admit every act or omission, and element of the offenses to which you have pled guilfy,and that you
are pleading guilfy because you actuaUy are, in fact, guUfy. If you do not believe that you are guilfy,
thenyoushouldnotforanyreasonpleadguUfy.DoyouunderstandwhatIhavesaidsofar7
ACC: (Responds )
MJ:Byyourplea of guilfy,you give up threeimportantrights, butyou give up these rightssolelywith
respect to the offenses to which you have pled guilfy.
First, the right against self-incrimination, that is, the right to say nothing at aU.
Second, the right toatrial of the facts by this court, that is, your right to have this court-martial
decide whetherornotyouareguilfy based upon evidencethe prosecution would presentandonany
evidence you may introduce.
Third, the right to be confronted by and to cross-examine any witness caUed against you.
Do youhaveany questions aboutany ofthese rights7
ACC:(Responds.)
MJ:DoyouunderstandthatbypleadmgguUfyyounolongerhavetheserights7
ACC:(Responds.)

APPELLATEEXHl8i^^^^^
PAGEREFERENCED:
^

PAGE

OF

PAGES

Pagelof35

34339

MJ: I f you continue with your guilfy plea, you will be placed under oath andlwiU question you to
determine whether you are, in fact, guilfy. Anything you tell me may be used against you in the
sentencing portion of the triaL Do you understand this7
ACC: (Responds.)
MJ: I f you tell me anything that is untrue, your statements may be used against you later for charges
of perjury or making false statements. Do you understand this7
ACC: (Responds )
MJ:Yourplea of guilfytoalesserincluded offense may also be used toestablisb certain elementsof
the charged offense, if the government decides to proceed on the charged offense. Do you understand
this7
ACC: (Responds )
MJ: Trial Counsel, please place the accused under oath.
TC: PFC Manning, please stand and face me. Do you(swear)(affrrm)that the statements you are about to
make shall be the tmth, the whole tmth, and nothing but the fmth(so hdp you God)7
ACC: (Responds )
MJ: Is thereastipulation offact^
TC: No,YourHonor.
MJ: Defense, has your client preparedastatement in support ofhis plea of guilfy^
TC: Yes,YourHonor.

Page2of3^

34340

S^AT^E^ENT^IN SUPPORT OFPLEAIN^UIRY
MJ: Please have the statement marked as Defense Exhibit Alpha for Identification, present it to me,
and make sure PFC Manning hasacopy. PFC Manning,Ihave before me Defense Exhibit Al^ha for
Identification,astatement in support of your plea along with an attachment entitled Attachment to
StatementlnSupportofthe Providence Inquiry. Didyousignthestatementandtheattachmentto the
statements
ACC: (Responds )
MJ: PFC Manning, is the statement in support of the plea inquiry and the attachment to it the fuU
contents ofDefense Exhibit Alpha for Identifications
ACC:Yes,Your Honor
MJ: Did youreadthesedocumentsthoroughlybeforeyou signed them7
ACC: (Responds )
MJ: PFC Manning, no one can be forced to prepareawritten statement in support of their plea, so
youshoulddosoonlyifyoutrulywanttodoso. Do you understand this7
ACC:(Responds.)
MJ: Are youvoluntarilyofferingthisstatementandit'sattachmentbecauseyou believe itis in your
best interest to do so^
ACC:(Responds.)
MJ: I f l a d m i t this statement along with its attachment into evidence it wUl be used in two ways.
F i r s t , I w i U use it to determine if you are, in fact, guilfy of tbe offenses to wbicb you bave pled guilfy.

Second,IwUl use it to determine an appropriate sentence for you.
Do you understand and agree to these uses of the statement and its attachments
ACC:(Responds.)
MJ:Defense,doyoualsoagreetotheseuses7
DC:(Responds.)
MJ: PFC Manning, do you remember whenltold you that if you teU me anything that is untrue, your
statements may be used against you later for charges of perjury or making false statements^
ACC: (Responds )
Page3of3^

34341

MJ: The same would be true in regards to Defense Exhibit Alpha for Identification. I f you adopt
Defense Exhibit Alpha for Identification under oath and something in it would be untrue, this
statement may be used against you later for charges of perjury or making false statements. Do you
understand that?
ACC: (Responds.)
MJ: At this time, I want you to read your copy of the statement and its attachment sUently to yourself
as I read it to myself.
NOTE: The Court haspreviousfy indicated that it would want PFC Manning to read the
statement and its attachment in open court The Defense does not object to having PFC
Manning read the statement and its attachment in open court
NOTE: The MJ should read the statement and be alert to resolve inconsistencies between
what is stated in the stipulation and what the accused says during the providence inquiry.
MJ: Have you finished reading it?
ACC: (Responds.)
MJ: PFC Manning, is everything in the statement and its attachment true?
ACC: (Responds.)
MJ: Is there anything m the statement or its attachment that you do not wish to admit is true?
ACC: (Responds.)
MJ: Do you agree under oath that the matters contained in the statement and its attachment are true
and correct to the best of your knowledge and belief?
ACC: (Responds.)
MJ: Trial Counsel, do you have any objections to Defense Exhibit Alpha for Identification?
TC: (Responds.)
MJ: Defense Exhibit Alpha for Identification is admitted into evidence subject to my acceptance of
the accused's guUfy plea.

Page 4 of35

34342

2-2-3. GUILTY PLEA FACTUAL BASIS
MJ: PFC Manning, I am going to explain the elements of the offenses to which you have pled guUfy.
By "elements," I mean those facts which the prosecution would have to prove beyond a reasonable
doubt before you could be found guUty if you had pled not guilfy. When I state each element, ask
yourself two things: First, is the element true; and second, whether you wish to admit that it is true.
After I list the elements for you, be prepared to talk to me about the facts regarding the offenses. Do
you have a copy of the charge sheet in front of you?
ACC: (Responds.)

SPECIFICATION 5 OF CHARGE I I I
MJ: Please look at Specification 5 of Charge I I I . It alleges the offense of violating a lawful regulation
in violation of Article 92, UCMJ. The elements of the offense of violating a lawful regulation are:
(1) That there was in existence a certain lawful general regulation in the foUowing terms:
Paragraph 7-4, Army Regulation 380-5, dated 29 September 2000;
(2) That you had a dufy to obey such regulation; and
(3) That between on or about 8 January 2010 and on or about 27 May 2010, at or near
Contingency Operating Station Hammer, Iraq, you violated this lawful general regulation by
wrongfully storing classified information.

There are some definitions that go with this offense.
NOTE 1: Proof of existence of resulation. The existence of the regulation must be proven or judicial
notice taken.
NOTE 2: Lawfulness of regulation. The lawfulness of the regulation is not a separate element ofthe
offense. Thus, the issue of lawfulness is determined by the MJ and is not submitted to the members. See
United States V. New, 55 MJ 95 (CAAF 2001); UnitedStates v. Deisher, 61 MJ 313 (CAAF 2005). To be
lawful, the regulation must relate to specific military duty and be one that the was authorized to be given
to the accused. The regulation must require the accused to do or stop doing a particular thing either at
once or at a future time. A regulation is lawful if reasonably necessary to safeguard and protect the

Page 5 of 35

34343

morale, discipline, and usefulness of the members of a command and is directly connected with the
maintenance ofgood order in the services.
As a matter of law, the regulation in this case, as described in the specification, if in fact
there was such a regulation, was a lawful regulation.
NOTE 3: Order or resulation determined to be unlawful A regulation is illegal i f , for example, it is
unrelated to military duty, its sole purpose is to accomplish some private end, it is arbitrary and
unreasonable, and/or it is given for the sole purpose of increasing the punishment for an offense which it
is expected the accused may commit
NOTE 7: Orders or regulations containing conditions. When an alleged regulation prohibits a certain
act or acts "except under certain conditions," (e.g., "except in the course of official duty" or "except with
proper authorization "), and the issue is raised by the evidence, the burden is upon the prosecution to
prove that the accused is not within the terms of the exception.
MJ: Do you understand the elements and definitions as I have read them to you?
ACC: (Responds.)
MJ: Do you have any questions about any of them?
ACC: (Responds.)
MJ: Do you understand that your plea of guUfy admits that these elements accurately describe what
you did?
ACC: (Responds.)
MJ: Do you believe and admit that the elements and definitions taken together correctly describe
what you did?
ACC: (Responds.)
MJ: At this time, I want you to teU me why you are guilfy of the offense Usted in Specification 5 of
Charge I I I . TeU me what happened.
ACC: (Responds.)
MJ: Are you famiUar with Army Regulation 380-5?
Page 6 of35

34344

ACC: (Responds.)
MJ: Have you received training on the requirements of Army Regulation 380-5?
ACC: (Responds.)
MJ: Did you admit that you had a dufy to obey Army Regulation 380-5?
ACC: (Responds.)
MJ: Why do you feel you had a dufy to obey Army Regulation 380-5?
ACC: (Responds.)
MJ: What did you believe Army Regulation 380-5 required you to do with classified information?
ACC: (Responds.)
MJ: Are you famiUar with paragraph 7-4 of Army Regulation 380-5?
ACC: (Responds.)
MJ: How are you famUiar with paragraph 7-4 of Army Regulation 380-5?
ACC: (Responds.)
MJ: Do you adnut you violated paragraph 7-4 of Army Regulation 380-5 by wrongfuUy stormg
classified information?
ACC: (Responds.)
NOTE: Paragrapit 7-4 reads "Classified information that is not under the personal control and observation
of an authorized person, is to be guarded or stored in a locked security container, vault, room, or area,
pursuant to the level of classification and this regulation..."

MJ: How did you wrongfuUy store classified information?
ACC: (Responds.)
MJ: Did anyone teU you that you had authorization to store classified information on your personal
computer?
ACC: (Responds.)

Page 7 of35

34345

MJ: Were you storing classified information on your personal computer for some official purpose?
ACC:(Responds.)

MJ: Do you believe you had any authorization to store classified information on your personal
computer?
ACC: (Responds )

MJ: So there is no doubt in your mind thatyou violated Army Regulation 380 5by storing classified
informafion your personal computer?
ACC: (Responds )

MJ: Do you admit that you knew that there was in existenceacertain lawful general regulation in the
foUowing terms: Paragraph 7-4, Army Regulation 380-5, dated 29 September 2000?
ACC: (Responds )
MJ: Do you adndtthatyouhadadufytoobeythis regulation?
ACC:(Responds.)
MJ:Doyouadmitthatbetweenonorabout8January2010andonorabout27May2010,atornear
Contingency Operating Station Hammer,Iraq, you violated this lawful general regulation by
wrongfuUy storing classified information on your personal computer?
ACC: (Responds )

SPECIFICATIONS 2.3^5.7.9.10.AND15OFCHARGE I I
MJ: Nowlwant you to takealook at Specifications 2,3, 5,7,9,10, and 15 of Charge I I . These
SpecificafionsaUege the offense oftransmitting defense information in violation ofTitle 18, United
States Code Section 793(e) and Article 134, UCMJ. Your counsel has enteredaplea of guUfy for you
to the lesser included offenses for these Specifications. The elements ofthe lesser included offenses to
which you have enteraplea of guUfy are:
(1) That at or near Contingency Operating Station Hammer,Iraq,

Page8of35

34346

SPECIFICATION 2: between on orabout 14 February 2010and21 February 2010; you,
without authorization, had possession of, access to, or control over:avideofUenamed"12 JUL 07 C^
ENGAGEMENT ^ONE30GC Anyone.avi.';
SPECIFICATION 3: between on orabout 17March2010and22March2010; you, without
authorization, had possession of, access to, or control over: more than one classified memorandum
produced byaUnited States government intelligence agency;
SPECIFICATION 5:between on orabout5January2010and3February 2010; you, without
authorization, had possession of, access to, or control over: more than 20 classified records from the
Combined Information Data Network Exchange Iraq database;
SPECIFICATION7:betweenonorabout5January2010and3February2010;you, without
authorization, had possession of, access to, or control over: more than 20 classified records from the
Combined Information Data Network Exchange Afghanistan database;
SPECIFICATION9:onorabout8March2010;you,withoutauthorization,hadpossessionof,
access to, or control over: more than3classified records fromaUnited States Southern Command
database;
SPECIFICATION10:betweenonorabout10April2010and12April2010;you, without
authorization, had possession of, access to, or control over: more than5classified records relating toa
mifitary operation inFarah Province, Afghanistan occurring on or about4May 2009;
SPECIFICATION 15: on or about8March 2010; you, without authorization, had possession of,
access to, or control over:aclassified record produced byaUnited States Army inteUigence
organization, dated 18 March 2008;
(Elements Common to all specifications)

(2) that you willfully communicated the classified records, classified memorandum, videos, and
files described for each specification in element (1) toaperson not entitled to receive it; and
(3) under the circumstances, your conduct was to the prejudice of good order and discipline in
the armed forces or was ofanature to bring discredit upon the armed forces.
Page9of35

34347

There are some definitions that go with these offenses.
"Conduct prejudicial to good order and discipline'is conduct which causesareasonably direct and
obvious injury to good order and discipline. "Service discrediting conduct'is conductwhich tends to
harm the reputation of the service or lower it in pubUc esteem.
With respect to "prejudice to good order and discipline, 'the law recognizes that almost any irregular
or improper act on the part ofaservice member could be regarded as prejudicial in some indirect or
remote sense; however,only those acts in which the prejudice is reasonably direct and palpable is
punishable under this Article.
Withrespectto"servicediscrediting,"thelawrecognizesthatalmostanyirregularorimproperacton
thepartofaservicemembercouldberegardedasservicediscreditinginsomemdirectorremote
sense; however,only those acts which would haveatendency to bring the service into disrepute or
which tend to lower it in public esteem are punishable under this Article.
Under some circumstances, your conduct may not be prejudicial to good order and discipUne but,
nonetheless, may be service discrediting, aslhave explained those terms to you. Likewise, depending
the circumstances, your conduct can be prejudicial to good order and discipline but not be service
discrediting.
An act is done "wiUfuUy" if it is done voluntarUy and intentionally with the specific intent to do
something the law forbids, that is, withabad purpose to disobey or disregard the law.
"Possession" means the act ofhaving or holding properfy or the detention ofproperfy in one's power
or command. Possession may mean actual physical possession or constructive possession.
"Constructive possession 'means having the abilify to exercise dominion or control over an item.
Possession inherently includes the power or authorifyto preclude control by others. It is possible,
however,for more than one person to possess an item simultaneously,as when several people share
control of an item.
Aperson has unauthorized possession of documents, photographs, videos, or computer files when he
possesses such information under circumstances or inalocation which is contrary to law or regulation
for the conditions ofhis employment.
Page10of35

34348

In determining whether the person who received the information was entitled to have it, the trier of
fact may consider all the evidence introduced at trial, including any evidence concerning the
classification status of the information, any evidence relating to law and regulations governing the
classification and declassification of national securify information, its handling, use, and distribution,
as well as any evidence relating to regulations governing the handling, use, and distribution of
information obtained from classified systems.
The term "person" means any individual, firm, corporation, education institution, financial
institution, governmental entify,or legal or other entify.
MJ: Do you understand the elements and definitions aslhave read them to you?
ACC: (Responds )
MJ: Do youhaveany questionsaboutany ofthem?
ACC:(Responds.)
MJ:Doyouunderstandthatyourpleaofguilfyadmitsthattheseelementsaccuratelydescribewhat
you did?
ACC: (Responds.)
MJ: Do you believeandadmitthattheelementsanddefinitionstaken together correctly describe
whatyou did?
ACC:(Responds)

SPECIFICATI0N20FCHARGEII
MJ:Atthistime,Iwantyou to teUmewhyyouareguilfy ofthe lesserincludedoffensesof
Specification 2, 3, 5, 7,9, lOand 15 of Charge I I . Let's begin by first having you teU me what
happened with regards to Specification2of Charge I I . Specification2deals with the video file named
"12JUL07C^ENGAGEMENT^ONE30GCAnyone.avi."
ACC:(Responds)

Pagellof35

34349

MJ: Are you familiarwith the video file named"12JUL 07 C^ ENGAGEMENT ^ONE 30 GC
Anyone.avi?"
ACC:(Responds.)
MJ: How are you familiar with the charged video?
ACC: (Responds )
MJ: When was the first time that you saw the charged video?
ACC: (Responds )
MJ: Where were you when you first saw the charged video?
ACC: (Responds.)
MJ: Did you ever takeacopy of the charged video out of theT-SCIF?
ACC: (Responds )
MJ: When did you takeacopy of the charged video out of theT-SCIF?
ACC:(Responds.)
MJ:WastheTSCIFatornearContmgencyOperatingStationHammer,Iraq?
ACC: (Responds )
MJ:DidyouhaveauthorizationtothetakethechargedvideooutoftheTSCIF?
ACC: (Responds )
MJ:Whatdidyou do with thechargedvideo when you tookitoutoftheTSCIF?
ACC:(Responds.)
MJ: Did you ever communicate the charged video toaperson not entitled to receive it?
ACC: (Responds )
MJ:Whodidyoucommunicatethechargedvideoto?
ACC: (Responds )

Pagel2of35

34350

MJ: When did you communicate the charged video to WikiLeaks?
ACC:(Responds.)

MJ: How did you know that WikiLeaks was not entitled to receive the charged video?
ACC: (Responds )

MJ: Did anyone teU you thatyou had authorization to send the charged video to WikiLeaks.
ACC: (Responds )

MJ: Were you sendingthe charged video to WikiLeaks for some official purpose?
ACC: (Responds )
MJ: Do you believe you had any authorization to send the charged video to WikiLeaks?
ACC: (Responds )
MJ: So there is no doubt in your mind that you wUlfully communicated the charged video toaperson
not entitied to receive it?
ACC: (Responds )

SPECIFICATIONS3AND150F CHARGE I I
MJ: Now let's talk about Specifications3and 15 of Charge I I . Specifications3and 15 deal with
classifiedmemorandaproducedbyaUnitedStatesgovernmentintelligenceagencyandaUnited
States Army intelligence organization.
MJ: Are you famiUar with the charged documents in Specifications3and 15 of Charge II?
ACC:(Responds.)
MJ: Without stating the exact intelligence organizations that produced these documents or stating the
content of the documents, how are you famiUar with them?
ACC:(Rosponds)
MJ: Did you look at the memoranda in Specifications3and 15 when you were in Ira^?
ACC: (Responds )

Pagc13of35

34351

MJ: Where in Iraq were you when you saw the memoranda in Specification 3?
ACC:(Responds)
MJ: How many memoranda are charged in Specification 3?
ACC: (Responds )

MJ: Do you agree that there is more than one classified memorandum charged in Specification 3?
ACC: (Responds.)
MJ: Where in Iraq were you when you saw the memorandum in Specification 15?
ACC: (Responds )
MJ: Didyou evertakeacopyofthememorandainSpecifications3and15outoftheTSCIF?
ACC: (Responds )
MJ: When did you takeacopy of the memoranda in Specificafions3and 15 out of theT-SCIF?
ACC:(Responds)
MJ:WastheTSCIFatornearContingencyOperatingStationHammer,Iraq?
ACC: (Responds )
MJ:DidyouhaveauthorizationtothetakeacopyofthememorandainSpecifications3and15outof
theTSCIF?
ACC: (Responds )
MJ: What did you do with memoranda charged in Specifications3and 15 when you took them out of
theTSCIF?
ACC:(Responds.)
MJ: Did you ever communicateacopy of the memoranda charged in Specifications3and 15 toa
person not entitled to receive them?
ACC: (Responds )
MJ: Who did you communicate the memoranda charged in Specifications3and 15 to?
Page14of35

34352

ACC:(Rosponds)

MJ: When did you communicateacopy of the memoranda charged in Specifications3and 15 to
WikiLeaks?
ACC: (Responds.)

MJ: How did you know that WikiLeaks was not entitled to receiveacopy of the memoranda charged
inSpecifications3and15?
ACC:(Responds)
MJ: Were the memoranda charged in Specification3and 15 classified at the time you sent them to
WU^eaks?
ACC: (Responds )
MJ: How do you know that the memoranda charged in Specification3and 15 were classified at the
timethatyousentthem

to WikiLeaks?

ACC: (Responds )
MJ:DidanyoneteUyouthatyouhadauthorizationtosendacopy ofthe memoranda chargedin
Specifications3and 15 to WikiLeaks.
ACC: (Responds )
MJ:WereyousendingacopyofthememorandachargedinSpecifications3and15toWU^Leaksfor
some official purpose?
ACC:(Responds)
MJ: Do you beUeve you had any authorization to sendacopy of the memoranda charged in
Specifications3and 15 to WikiLeaks?
ACC: (Responds.)
MJ:SothereisnodoubtinyourmindthatyouwUlfuUycommunicatedtheclassifiedmemoranda
charged in Specifications3and 15 toaperson not entitied to receive them?
ACC: (Responds )

Pagcl5of35

34353

SPECIFICAT10NS5AND70F CHARGE I I
MJ:Now let's talk^aboutSpecifications5and7of ChargelL Specifications5and7dealwith
classified records from the Combined Information Data Network Exchange Iraq and Afghanistan
database.
MJ: Are you fandliar with the charged documents in Specifications5and7of Charge II?
ACC: (Responds )
MJ: What are the charged documents in Specification5and7of Charge II?
ACC: (Responds.)
MJ: HowareyoufamUiarwithSIGACTschargedinSpecification5and7?
ACC: (Responds )
MJ:HowmanySIGACTsarechargedinSpecification5?
ACC:(Responds.)
MJ: Do you agree that more than twenfy (20) SIGACTsare charged in Specification 5?
ACC:(Responds.)
MJ:HowmanySIGACTsarechargedinSpecification7?
ACC: (Responds )
MJ: Do you agree thatmore than twenfy (20) SIGACTsare charged in Specification 7?
ACC: (Responds )
MJ:WhereinIraqwereyouwhenyousawtheSIGACTschargedinSpecifications5and7?
ACC:(Responds.)
MJ: Did you ever takeacopy of the SIGACTscharged in Specifications5and7out of theT-SCIF?
ACC:(Responds)
MJ:When didyou takeacopy oftheSIGACTSchargedinSpecifications5and7outoftheTSCIF?
ACC:(Responds.)
Pagel6of35

34354

MJ: Was theT-SCIF at or nearContingency Operating station Hammer,Iraq?
ACC:(Responds.)
MJ: Did you have authorization to the takeacopy of the SIGACTscharged in Specifications5and7
outoftheTSCIF?
ACC: (Responds )

MJ: What did you do with the SIGACTscharged in Specifications5and7when you took them out of
theTSCIF?
ACC: (Responds )
MJ: Did you ever communicateacopy of the SIGACTS charged in Specifications5and7toaperson
not entitied to receive them?
ACC: (Responds )
MJ: Who did you communicate the charged SIGACTS in Specifications5and7to?
ACC: (Responds )
MJ:When didyou communicateacopy oftheSIGACTschargedinSpecifications5and7to
WUtiLeaks?
ACC: (Responds.)
MJ: How didyouknowthatWikiLeakswasnotentitled to receiveacopy oftheSIGACTSchargedin
Specifications5and7?
ACC: (Responds )
MJ: Were the SIGACTscharged in Specification5and7classified at the time you sent them to
WU^Leaks?
ACC: (Responds.)
MJ: How do you know that the SIGACTS charged in Specifications5and7were classified at the time
that you sent them to WikiLeaks?
ACC: (Responds )

Pagel7of35

34355

MJ: Did anyone teU you thatyou had authorization to sendacopy of the SIGACTscharged in
Specifications5and7to WikiLeaks.
ACC: (Responds )
MJ: Were you sendingacopy of the SIGACTscharged in Specifications5and7to WikiLeaks for
some official purpose?
ACC: (Responds )

MJ: Do you believe you had any authorization to sendacopy of the SIGACTscharged in
Specifications5and7to WikiLeaks?
ACC: (Responds )
MJ: So there is no doubt in your mind that you wiUfully communicated the classified SIGACTs
charged in Specifications5and7toaperson not entitled to receive them?
ACC: (Responds )

SPECIFICATI0N90FCHARGEII
MJ: Now let's talk about Specification9of Charge I I . Specifications9dea1s with more than three
classified records fromaUnited States Southern Command database.
MJ:AreyoufandliarwiththechargeddocumentsmSpecification9?
ACC: (Responds )
MJ: How are you familiarwith charged documents inSpedfication 9?
ACC:(Responds.)
MJ: What are the charged documents in Specification 9?
ACC:(Responds.)
MJ: Howmany documentsarechargedinSpecification9?
ACC: (Responds )
MJ: Do you agree that there are more than three classified records charged in Specification 9?
ACC: (Responds.)
Pagcl8of35

34356

MJ: Where in Iraq were you when you saw the charged documents in Specification 9?
ACC: (Responds )
MJ: Did you ever takeacopy of the charged documents in Specification9out of theT-SCIF?
ACC: (Responds )

MJ: When did you takeacopy of the charged documents in Specification9out of theT-SCIF?
ACC: (Responds )
MJ: Was theT-SCIF at ornearContingencyOperatingStationHammer,Iraq?
ACC: (Responds )
MJ: Did you have authorization to the takeacopy of the charged documents in Specification9out of
theTSCIF?
ACC: (Responds )
MJ:WhatdidyoudowiththechargeddocumentsinSpecification9whenyoutookthemoutoftheT
SCIF?
ACC: (Responds )
MJ: Did you ever communicateacopy of the charged documents in Specification9toaperson not
entitled to receive them?
ACC: (Responds )
M J : W h o d i d y o u communicate thechargeddocumentsmSpecification9to?
ACC:(Responds.)
MJ: When did you communicateacopy of the charged documents in Specification9toWikiLeaks?
ACC:(Responds.)
MJ: How did you know that WikiLeaks was not entitled to receiveacopy of the charged documents
in Specification 9?
ACC: (Responds )

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34357

MJ: Were the documents charged in Specification9classified atthe time you sent them to
WU^eaks?
ACC:(Responds.)
MJ: How do you know thatthe documents charged in Specification9were classified at the time that
you sent them to WikiLeaks?
ACC: (Responds )

MJ: Did anyone teU you thatyou had authorization to sendacopy of the documents charged in
Specification9to WikiLeaks.
ACC: (Responds.)
MJ: Were you sendingacopy of the documents charged in Specification9to WikiLeaks for some
official purpose?
ACC: (Responds )
MJ: Do you believeyouhadany authorization tosendacopyofthedocumentschargedin
Specification9to WikiLeaks?
ACC: (Responds )
MJ: So there is no doubt in your mind that you wiUfuUy communicated the classified documents
charged in Specification9 toaperson not entitled to receive them?
ACC: (Responds )

SPECIFICATION 10OFCHARGE I I
MJ: Now let's talk about SpecificationlOof ChargelL Specifications lOdeals with more than five
classified records relating toamilitary operation inFarah Province, Afghanistan occurring on or
about4May2009.
MJ: Are you familiar with the charged documents in SpecificationIO?
ACC: (Responds )
MJ: How are you familiar with charged documents in SpecificationIO?
ACC: (Responds )
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34358

MJ: What are the charged documents in Specification 10?
ACC: (Responds )
MJ: When was the firsttime thatyou saw the charged documents in Specification 10?
ACC: (Responds )
MJ: How many documents are charged in SpecificationIO?
ACC: (Responds )
MJ: Do you agree that there are more than five (5) classified records relating toamilitary operation
inFarah Province, Afghanistan occurring on or about4May 2009 in Specification 10?
ACC: (Responds.)
MJ: Where in Iraq were you when you saw the charged documents in Specification 10?
ACC: (Responds )
MJ:DidyouevertakeacopyofthechargeddocumentsinSpecificationIOoutoftheTSCIF?
ACC:(Responds)
MJ:When didyou takeacopy ofthechargeddocumentsinSpecificationlOoutoftheTSCIF?
ACC:(Responds.)
MJ:WastheTSCIFatornearContingencyOperatingStationHammer,Iraq?
ACC:(Responds.)
MJ: Did youhaveauthorization to thetakeacopyofthecharged documents inSpecificationlOoutof
theTSCIF?
ACC:(Responds.)
MJ: What did you do with the charged documents in Specification lOwhen you took them out of the
TSCIF?
ACC: (Responds.)

Page21of35

34359

MJ: Did you ever communicateacopy of the documents charged in Specification lOtoaperson not
entitled to receive them?
ACC:(Responds.)
MJ: Who did you communicate the charged documents in Specification lOto?
ACC: (Responds )
MJ: When did you communicateacopy of the charged documents in Specification lOto WikiLeaks?
ACC: (Responds )
MJ: How did you know that WikiLeaks was not entitled to receiveacopy of the charged documents
in SpecificationIO?
ACC: (Responds )
MJ:WerethedocumentschargedinSpecification10classifiedatthetimeyousentthemto
WikiLeaks?
ACC: (Responds )
MJ:HowdoyouknowthatthedocumentschargedinSpecification10wereclassifiedatthetimethat
yousentthemtoWU^eaks?
ACC: (Responds )
MJ:DidanyoneteUyouthatyouhadauthorizationtosendacopyofthedocumentschargedin
Specification lOtoWikiLeaks.
ACC: (Responds )
MJ: Were you sendingacopy of the documents charged in Specification lOto WikiLeaks for some
official purpose?
ACC: (Responds )
MJ: Do you believe you had any authorization to sendacopy of the documents charged in
Specification lOtoWikiLeaks?
ACC:(Responds)

Page22of35

34360

MJ: So there is no doubt in your mind thatyou willfully communicated the classified documents
charged in Specification lOtoaperson not entitled to receive them?
ACC:(Responds.)

SPECIFICATIONS 2.3.5,7.9.10.AND15OFCHARGEH
MJ: Now with regards to Specifications 2,3,5, 7,9,10, and 15 do you admitthatyourconductwas to
the prejudice of good order and discipUne in the armed forces or ofanature to bring discredit upon
the armed forces?
ACC: (Responds )
MJ: TeU me why you beUeve your conduct with regards to Specifications 2,3,5, 7,9,10, and 15 was
prejudicial to good order and discipline?
ACC: (Responds )
MJ: TeU me why you believe your conductwith regards to Specifications 2,3,5,7,9,10, and 15 was
ofanature to bring discredit upon the armed forces?
ACC: (Responds )
MJ: Do you admit that at or near Contingency Operating Station Hammer,Ira^,
SPECIFICATION 2:between on or about 14 February 2010and21 February 2010; you,
without authorization, had possession of, access to, or control over:avideofUenamed"I2 JUL 07 C^
ENGAGEMENT^ONE30GCAnyoneavi";
SPECIFICATION 3: between on or about17March2010and22March2010; you, without
authorization, had possession of, access to, or control over: more than one classified memorandum
produced byaUnited States government inteUigence agency;
SPECIFICATION5:betweenonorabout5January2010and3February2010;you, without
authorization, had possession of, access to, or control over: more than 20 classified records from the
Combined Information Data Network Exchange Iraq database;
SPECIFICATION7: between on or about5January2010and3February 2010; you, without
authorization, had possession of, access to, or control over: more than 20 classified records from the
Combined Informafion Data Network Exchange Afghanistan database;
Page23of35

34361

SPECIFICATION 9 : o n or about8March2010; you, withoutauthorization,had possession of,
access to, or control over: more than3classified records fromaUnited States Southern Command
database;
SPECIFICATIONIO: between on orabout10April2010and 12 April2010;you, without
authorization, had possession of, access to, or control over: more than5classified records relating toa
miUtary operation inFarah Province, Afghanistan occurring on or about4May 2009;
SPECIFICATION 15: onorabout8March2010;you,withoutauthorization,hadpossessionof,
access to, or control over:aclassified record produced byaUnited States Army inteUigence
organization, dated 18 March2008?
ACC: (Responds )
MJ: Do you admitthatyou wUlfully communicated theclassifiedrecords,classifiedmemorandum,
videos, and files described for Specifications 2,3, 5,7,9,10, and 15 toaperson not entitled to receive
them?
ACC:(Responds.)
MJ: Do youadmitthatunderthecircumstances,yourconductwas to theprejudiceof good orderand
discipline in the armed forces?
ACC:(Responds.)
MJ: Do you adndt that under the circumstances, your conduct was ofanature to bring discredit upon
the armed forces?
ACC:(Responds.)

SPECIFICATIONS 13AND140FCHARGE I I
MJ: Nowlwant you to takealook at Specifications 13 and 14 of ChargelL These Specifications
allege the offense offraud and related activify in connection with computers in violation ofTitle 18,
United States Code SectionI030(a)(1)andArticle 134, UCMJ. Your counselhas enteredaplea of
guilfy for you to the lesser included offenses for these Specifications. The elements ofthe lesser
included offenses to which you have enteraplea of guilfy are:
(I) That at or near Contingency Operating Station Hammer,Iraq,
Page24of35

34362

SPECIFICATION 13:between on orabout28March2010and on orabout4May 2010;
^

SPECIFICATION 14: between on orabout 14 February 2010and 15 February 2010;
you knowingly accessedacomputer onaSecret Intemet Protocol Router Network.
(2) you obtained information that has been determined by the United States Government by
Executive Order or statute to require protection against unauthorized disclosure for reasons of
national defense or foreign relations; to wit:
SPECIFICATION 13:more than 75 classified UnitedStates Department ofStatecables;
SPECIFICATION 14:aclassifiedDepartmentofStatecabletitle"ReykjavU^13";
(3) you communicated, deUvered, transmitted, or caused to be communicated, deUvered or
transmitted the information toaperson not entitled to receive it;
(4) youactedwUlfuUy;and
(5) under the circumstances, your conduct was to the prejudice of good order and discipline in
the armed forces or was ofanature to bring discredit upon the armed forces.
The same definitions for prejudice to good order and discipline in the armed forces, and ofanature to
bring discredit upon the armed forces thatlread for you for the offenses charged in Specifications 2,
3, 5,7,9,10, and 15 of Charge I I also apply to this offense. Do you need me to read these definitions to
youagain?

^

ACC: (Responds )
An act is done "wiUfully" i f i t is done voluntarUy and intentionaUy with the specific intent to do
somethhig the law forbids, that is, withabad purpose to disobey or disregard the law.

^

An act is done "knowingly" if it is done voluntarily and intentionaUy and not because of mistake or
accident or other innocent reason.
The term "computer" means an electronic, magnetic, optical, electrochemical, or other high speed
data processing device performing logical, arithmetic, or storage functions, and includes any data
Page25of35

34363

storage facilify or communications faciUfy directly related to or operating in conjunction with such
device, but such term does not include an automated fypewriter or fypesetter,aportable hand-held
calculator,or other similar device.
In determining whether the person who received the information was entitied to have it, the trier of
fact may consider aU the evidence introduced at trial, including any evidence concerning the
classification status of the information, any evidence relating to law and regulations governing the
classification and declassification of national securify information, its handling, use, and distribution,
as well as any evidence relating to regulations governing the handling, use, and distribution of
information obtained from classified systems.
The term "person" means any individual, firm, corporation, education institution, financial
institution, governmental entify,or legal or other entify.
MJ: Doyou understandtheelementsanddefinitionsaslhavereadthemtoyou?
ACC:(Responds.)
MJ: Do youhaveany questionsaboutany ofthem?
ACC: (Responds )
MJ: Doyou understandthatyourpleaofguilfyadmitsthattheseelementsaccuratelydescribewhat
you did?
ACC: (Responds )
MJ: Do you believe and admit that the elements and definitions taken together correctly describe
whatyou did?
ACC: (Responds )
MJ: At this time,Iwant you to teU me why you are guilfy of the lesser included offenses of
Specification 13 and 14 ofCharge I I . Let's begin by first havingyouteU me what happened with
regards to Specification 14of Charge I I . Specification 14dealswithaclassified Department ofState
cabletitled"ReykjavU^13"
ACC:(Responds.)

Pagc26of35

34364

MJ: Are you famUiar with the classified Department ofState cable titled "Reykjavik13?"
ACC:(Responds.)
MJ: How are you famiUar with the charged cable in Specification 14?
ACC:(Responds.)
MJ: When was the first time that you saw the charged cable in Specification 14?
ACC: (Responds )
MJ: Where were you when you first saw the charged cable in Specification 14?
ACC: (Responds )
MJ: Did you ever takeacopy of the charged cable in Specification 14out of theT-SCIF?
ACC:(Responds.)
MJ:WhendidyoutakeacopyofthechargedcableinSpecification14outoftheTSCIF?
ACC: (Responds )
MJ: Was theT-SCIF at or near Contingency Operating Station Hammer,Iraq?
ACC:(Responds.)
MJ: Now let's talk about Specification 13 of Charge I I . Specifications 13 deals with more than
sevenfyfive(75)classifiedUnitedStatesDepartmentofStatecables.
MJ: Are you famiUar with the charged cables in Specification 13?
ACC:(Responds.)
MJ: How are you famiUar with charged cables in Specification 13?
ACC:(Responds.)
MJ: HowmanydocumentsarechargedinSpecification 13?
ACC: (Responds )
MJ: Do you agree that there are more than sevenfy-five (75) classified cables charged in Specification
13?
Page27of35

34365

ACC:(Responds.)
MJ: Where, in Iraq, were you when you saw the charged cables in Specification 13?
ACC: (Responds )
MJ: Did you ever takeacopy of the charged cables in Specification 13 out of theT-SCIF?
ACC: (Responds )
MJ: When did you takeacopy of the charged cables in Specification 13 out of theT-SCIF?
ACC:(Responds.)
MJ:WastheTSCIFatornearContingencyOperatingStationHammer,Iraq?
ACC: (Responds )
MJ: Did you have authorization to the take the charged cables in Specifications 13 and 14out of the
TSCIF?
ACC:(Responds)
MJ: What did you do with the charged cables in Specifications 13 and 14 when you took them out of
theTSCIF?
ACC: (Responds.)
MJ: Did you ever communicate the charged cables in Specifications 13 and 14 toaperson not entitled
to receive it?
ACC:(Rosponds.)
MJ: Who did you communicate the charged cables in Specifications 13 andI4to?
ACC:(Responds.)
MJ: When did you communicate the charged cables in Specification 13 to Wil^eaks?
ACC: (Responds )
MJ: When did you communicate the charged cable in Specification 14toWil^eaks?
ACC: (Responds.)
Pagc28of35

34366

MJ: How did you know that WikiLeaks was not entitled to receive the charged cables in
Specifications 13 and 14?
ACC: (Responds )

MJ: Were the cables charged in Specification 13 classified atthe time you sentthem to WikiLeal^?
ACC: (Responds )
MJ: How do you know that the cables charged in Specification 13 were classified at the time that you
sent them to WikiLeaks?
ACC: (Responds )
MJ: Was the cable charged in Specification 14classified at the time you sent it to WikiLeaks?
ACC:(Responds.)
MJ: How do you know that the cable charged in Specification 14 was classified at the time that you
sent it to WikiLeaks?
ACC: (Responds.)
MJ:DidanyoneteUyouthatyouhadauthorizationtosendthecharged cables inSpecifications 13
and 14 to WikiLeaks.
ACC:(Responds.)
MJ: Were you sending the charged cables in Specifications 13 and 14 to WikiLeaks for some official
purpose?
ACC:(Rosponds.)
MJ:DoyoubelieveyouhadanyauthorizationtosendthechargedcablesinSpecifications13and14
toWikiLeaks?
ACC: (Responds.)
MJ: So there is no doubt in your mind that you wUlfully communicated the charged classified cables
in Specifications 13 and 14 toaperson not entitled to receive them?
ACC: (Responds )

Page29of35

34367

MJ: Now with regards to Specifications 13 and14do you admit that your conduct was to the
prejudice of good order and discipline in the armed forces or ofanature to bring discredit upon the
armed forces?
ACC: (Responds.)

MJ: Tell me why you believe your conduct with regards to Specifications 13 and14 was prejudicial to
good order and discipline in the armed forces?
ACC: (Responds )
MJ: TeU me why you beUeve your conduct with regards to Specifications 13 and I4was ofanature to
bring discredit upon the armed forces?
ACC: (Responds.)
MJ: Do you admit that at or near Contingency Operating Station Hammer,Iraq,
^

SPECIFICATION 13: betweenonorabout28March2010andonorabout4May 2010;
SPECIFICATION 14:

betweenonorabout14February2010and15February2010;

youknowmglyaccessedacomputeronaSecretlnternetProtocolRouterNetwork?
ACC: (Responds )

^

MJ: Do you admit that you obtained information that has been determined by the United States
Government by Executive Order or statute to require protection against unauthorized disclosure for
reasons of national defense or foreign relations; to wit:
SPECIFICATION 13:more than 75 classified UnitedStates DepartmentofStatecables;
SPECIFICATION 14:aclassified Department ofStatecable title "Reykjavik13''?
ACC: (Responds.)

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

MJ: Do you admit you communicated the charged information in Specifications 13 and 14toaperson
not entitled to receive it?
ACC: (Responds )

^^^^

^BB ^

Pagc30of35

^^^^

34368

M J : D o you admityou acted willfullymcommunicatingthe charged information in Specifications 13
and 14 toaperson not entitled to receive it?
ACC: (Responds )
MJ: Do you admit that under the circumstances, your conduct was to the prejudice of good order and
discipUne in the armed forces?
ACC: (Responds )

MJ: Do you admit that under the circumstances, your conductwas ofanature to bring discredit upon
the armed forces?
ACC: (Responds )

NOTE: After covering all offenses to which the accused pled guilty, the MJ continues as
follows:
MJ: Does either counsel beUeve any further inquiry is required?
TC/DC: (Respond.)

2-2^. MAXIMUM PUNISHMENT INQUIRY
MJ: Trial Counsel, what do you calculate to be the maximum punishment authorized in this case
based solely on the accused's guUty plea?
TC: (Responds.)
MJ: Defense Counsel, do you agree?
DC: (Responds.)
MJ: PFC Manning, the maximum punishment authorized in this case based solely on your guilfy plea
is reduction to E-1, total forfeiture of all pay and allowances, confinement for 20 years, and a
dishonorable discharge.
MJ: On your plea of guilfy alone this court could sentence you to the maximum punishment which I
just stated. Do you understand that?
./

Page 31 of 35

34369

ACC: (Responds.)
MJ: Do you have any questions as to the sentence that could be imposed as a result of your guUfy
plea?
ACC: (Responds.)
MJ: Trial Counsel, is there a pretrial agreement in this case?
TC: (Responds.)
NOTE: Ifno pretrial agreement exists, continue below. I f a pretrial agreement exists and
trial is by Judge Alone: Go to paragraph 2-2-6, PRETRIAL A GREEMENT (JUDGE
ALONE). I f a pretrial agreement exists and trial is with court members: Go to paragraph
2-2-7, PRETRIAL AGREEMENT (MEMBERS).

Page 32 of 35

34370

2-2-5. IF NO PRETRIAL AGREEMENT EXISTS
MJ: Counsel, even though there is no formal pretrial agreement, are there any unwritten
agreements or understandings in this case?
TC/DC: (Respond.)
MJ: PFC Manning, has anyone made any agreements with you or promises to you to get
you to plead guilfy?
ACC: (Responds.)


NOTE: Go to paragraph 2-2-8, ACCEPTANCE OF GUILTY PLEA.

2-2-8. ACCEPTANCE OF GUILTY PLEA
MJ: Defense Counsel, have you had enough time and opportiinify to discuss this case witii
PFC Manning?
DC: (Responds.)
MJ: PFC Manning, have you had enough time and opportunify to discuss this case with
your defense counsel?
ACC: (Responds.)
MJ: PFC Manning, have you, in fact, consulted fuUy with your defense counsel and
received the fuU benefit of their advice?
ACC: (Responds.)
MJ: Are you satisfied that your defense counsel's advice is in your best interest?
ACC: (Responds.)
MJ: And are you satisfied with your defense counsel?
ACC: (Responds.)
MJ: Are you pleading guilfy voluntarUy and of your own free wiU?
ACC: (Responds.)
:

'

Page 33 of 35

34371

MJ: Has anyone made any threat or tried in any way to force you to plead guUfy?
ACC: (Responds.)
MJ: Do you have any questions as to the meaning and effect of a plea of guUfy?
ACC: (Responds.)
MJ: Do you fully understand the meaning and effect of your plea of guilfy?
ACC: (Responds.)
MJ: Do you understand that even though you beUeve you are guilfy, you have the legal
right to plead not guUfy and to place upon the government the burden of proving your guUt
beyond a reasonable doubt?
ACC: (Responds.)
MJ: Take a moment now and consult again with your defense counsel, then tell me
whether you stiU want to plead guUfy? (Pause.) Do you stiU want to plead guUfy?
ACC: (Responds.)
MJ: PFC Manning, I find that your plea of guUfy is made voluntarily and with fuU
knowledge of its meaning and effect. I further find that you have knowingly, mteUigently,
and consciously waived your rights against self-incrimination, to a trial of the facts by a
court-martial, and to be confronted by the witnesses against you. Accordingly, your plea of
guilfy is provident and is accepted. However, I advise you that you may request to
withdraw your guUfy plea at any time before the sentence is announced, and if you have a
good reason for your request, I wiU grant it.
NOTE: Ifthe accused has pled guilty to only some of the charges and
specifications or has pled guilty to lesser included offenses, ask the trial counsel
ifthe government is going forward on the offenses to which the accused has
pled not guilty. Ifthe government is going forward on any offenses, do not
enter findings except to those offenses to which the accused pled guilty as
charged in a members' trial (Le., ifthe plea was to a LIO or by exceptions and
substitutions and the government is going forward as charged, do not enter
findings).

'

*

.,

^*

MJ: Trial Counsel, is the Government going forward on the offenses to which the accused
has plead not guilfy?
TC: (Responds.)
Page 34 of 35

34372

NOTE: If issues of guilt remain in a judge alone (contest), go to Section III
and in a court members (contest) go to Section V. The MJ should not inform
the court members ofplea and findings of guilty prior to presentation of the
evidence on another specification to which the accused pled not guilty unless
the accused requests it or the guilty plea was to a LIO and the prosecution
intends to prove the greater offense. Unless one of these two exceptions exists,
the flyer should not have any specifications/charges which reflect provident
guilty pleas if other offenses are being contested
NOTE: Ifno issues of guilt remain, continue below:
MJ: Accused and Defense Counsel, please rise. PFC Manning, in accordance with your
plea of guUfy, this court finds you:

.

NOTE: For judge alone (sentencing), go to Section IV and for court members
(sentencing only), after marking the flyer, go to Section VI.

Page 35 of 35

34373

UNITED STATES OF AMERICA

)

V.

)
)
)
)
)
)
)

^

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

Government Notice
ofProposed Providence
Inquiry Questions

7February2013

The Court'smost recent scheduling order, dated9January 2013,requfres the Uruted States to
submiLNLT7Fehmary 2013,its proposed questions fbr the providence inquiry into the accused's
proposed plea, dated and ftled electronically on 30 January 2013.
Appellate Exhibit 466. These
questions accompany this notice ftling as Enclosurel.
In an effort to combine the defense'sproposed questions, objections bythe United States, and
additional government questions into one documenL the United States inserted its questions into the
format submitted bythe defense in its 30 January 2013 electronic ftling. Thegovemment'sproposal
indudes the defense'sproposed instmctions and questions exactly as it was originally written hut fbr
rivo changes. First, each question directed to the accused has been assignedanumber. Second,
where the defense articulated dements and questions inacompoundmarraer(fbrtwo speciftcations
together); these have been extracted and reproduced separately. Additionally the United States used
strike-through markings to shows the defense questions to which the Uruted States objects as
wdl as indicate any proposed changes to the defense questions. The United States added questions
written in ^/^^. New questions proposed by the United States are added fbllowing the defense's
proposed questions and set offbyaletter. For example,agovemment question designed to follow
defense question35 is marked as35A. The numbering and lettering should afford both parties and
the Court an easy reference to speciftc questions.
Pursuant to "RULING: Govemment Motion fbr Leave untill4Febmary 2013 to Submit its
Proposed Providence Inquiry Questions" issued by the Court5Febmary 2013,the United States
foresees legal issues conceming the accused'sproffered statement which it will address in its 14
Febmary 2013 ftling. Pending the resolution ofthese legal issues, the United States anticipates that
the instmctions associated with the defense proffered statement may change.

ASHDEN FEIN
MAJ, JA
Trial Counsel

APPELLATE EXHIBIT.^i|£jS
PAGE REFERENCED:
PAOE OF PAGES

34374

Icertifythatlserved or caused to be servedatme copy ofthe above on Mr. David Coombs,
Civilian Defense Counsd,yia electronic mail on7Febmary 2013.

ASHDENFEIN
MAJ,JA
TrialCounsd
Endosurel"Gui1ty Plea Inquiry fbr United Statesv.PFC Bradley E.Manning"

34375

UNITED STATESOF AMERICA

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

Government Notice
ofProposed Providence
InquiryQuestions
Enclosure
7February2013

34376

^^^^i^D^I
^t^il^^^I^^lD^t^ii^Foi^ODi^^^^^^^^^^^FG^i^^^I^^^I^^^
22^LGUILTYPLEAINTR^DUCTION
MJ: PFC Manning, your counsel has enteredaplea of guilfy to lesser included offenses for several of
the charges and specifications. Your plea of guilfy will not be accepted unless you understand its
meaningandeffect.Iamgoingtodiscussyourpleaofgudfywithyou.Youmaywishtoconsultwith
your defense counsel prior to answering any of my questions. I f at any time you have questions, feel
free to ask them.
Aplea of guilfy is equivalent toaconviction and is the strongest form of proofknown to the law. On
your plea alone, and without receiving any evidence, this court can find you guilfy of the offenses to
which youhavepledguilfy.YourpleawiUnotbeacceptedunlessyourealizethatbyyourplea you
admit every act or omission, and element of the offenses to which you have pled guilty,and that you
arepleadingguilfybecauseyouactuallyare,infact,guilfy. I f y o u do notbelievethatyouareguilfy,
thenyoushouldnotforanyreasonpleadguilfy.Doyouunderstandwhatlhavesaidsofar?
ACC:(Responds)
MJ: By your plea of guilfy,you give up three important rights, but you give up these rights solely with
respecttotheoffensestowhichyouhavepledguilfy.
First, the right against self-incrimination, that is, the right to say nothing at alL
Second, therighttoatrialofthefactsbythiscourt,thatis,yourrighttohavethiscourtmartial
decide whether or not you are guilfy based upon evidence the prosecution would present and on any
evidence you may introduce.
Third, the right to be confronted by and to cross-examine any witness caUed against you.
LDoyouhaveany questionsaboutany oftheserights?
ACC:(Responds.)
2. M J : Do you understand that by pleading guilfy you no longer have these rights?
ACC:(Responds)
3. M J : I f you continue with your guilfy plea, you wiU be placed under oath andlwiU question you to
determine whether you are, in fact, guilfy. Anything you tell me may be used against you in the
sentencing portion of the triaL Do you understand this?
ACC:(Responds.)
4. M J : I f you tell me anything that is untrue, your statements may he used against you later for
charges of perjury or making false statements. Do you understand this?
ACC: (Responds)
Pagelof^5

34377

5. M J : Your plea of guilfy toalesser included offense may also be used to establish certain elements
of the charged offense, if the government decides to proceed on the charged offense. Doyou
understand this?
ACC: (Responds )
M J : Trial Counsel, please place the accused under oath.
TC: PFC Manning, please stand and face rae. Do you(swear)(afftrra) that the stateraents you are about to
raake shall be the tmth, the whole tmth, and nothing but the tmth (so help you God)?
ACC: (Responds )
M J : Isthereastipulationoffact?
TC: No,YourHonor.
MJ:Defense, has your client preparedastatement in support ofhis plea of guilfy?
T^DC:Yes,YourHonor

Page2of55

34378

STATEMENTIN SUPPORT ^FPLEAINQUIRY
6. MJ: Please have the statement marked as Defense Exhibit Alpha for Identification, present it to
me, and make sure PFCManning hasacopy. PFC Manmng,Ihave before me Defense Exhibit Alpha
for Identification,astatement in support of your plea along with an attachment entitled Attachment to
Statement In Support of the Providence Inquiry. Did you sign the statement and the attachment to the
statement?
ACC: (Responds.)
7. MJ: PFC Manning, is the statement in support of the plea inquiry and the attachment to it the fuU
contents ofDefense Exhibit Alpha for Identification?
ACC: Yes,YourHonor.
8. MJ: Did youreadthesedocumentsthoroughlybeforeyou signed them?
ACC: (Responds )
9. MJ: PFC Manning, no one can be forced to prepareawritten statement in support of their plea, so
you should do so only if you truly want to do so. Do you understand this?
ACC: (Responds.)
10. MJ:Areyouvoluntarifyofferingthisstatementandit'sattachmentbecauseyoubelieveitisin
yourbestinteresttodoso?
ACC: (Responds.)
11. MJ: Ifladmit this statement along with its attachment into evidence it wiU be used in two ways.
First,Iwill use it to determine if you are, in fact, guilfy of the offenses to which you have pled guilfy.
Secondlwdluseittodetermineanappropriatesentenceforyou.
Do you understand and agree to these uses of the statement and its attachment?
ACC: (Responds )
12. MJ: Defense, do you also agree to these uses?
DC:(Responds)
13. MJ: PFC Manning, do you remember whenltold you that if you teU me anything that is untrue,
your statements may be used against you later for charges of perjury or making false statements?
ACC: (Responds )
14. MJ: The same would be true in regards to Defense Exhibit Alpha for Identification. Ifyou adopt
Defense Exhibit Alpha for Identification under oath and something in it would be untrue, this
statement may be used against you later for charges of perjury or making false statements. Doyou
understandthat?
Page3of55

34379

ACC: (Responds.)
MJ: At this time, I want you to read your copy of the statement and its attachment sUently to yourself
as I read it to mysdL
NOTE: The Court has previously indicated that it would want PFC Manning to read the
statement and its attachment in open court The Defense does not object to having PFC
Manning read the statement and its attachment in open court.
NOTE: The MJ should read the statement and be alert to resolve inconsistencies between
what is stated in the stipulation and what the accused says during the providence inquiry.
15. MJ: Have you finished reading it?
ACC: (Responds.)
16. MJ: PFC Manning, is everything in the statement and its attachment true?
ACC: (Responds.)
17. MJ: Is there anything in the statement or its attachment that you do not wish to admit is true?
ACC: (Responds.)
18. MJ: Do you agree under oath that the matters contained in the statement and its attachment are
true and correct to the best ofyour knowledge and beUef?
ACC: (Responds.)
MJ: Trial Counsd, do you have any objections to Defense Exhibit Alpha for Identification?
TC: (Responds.)
MJ: Defense Exhibit Alpha for Identification is admitted into evidence subject to my acceptance of
the accused's guilfy plea.

Page 4 of 55

34380

22^3.GUILTYPLEAFACTUALEASIS
19. M J : PFC Manning,Iam going to explain the elements of the offenses to which you have pled
guilfy. By "elements,"Imean those facts which the prosecution would have to prove beyonda
reasonable doubt before you could be found guilty if you had pled not guilfy. Whenlstateeach
element, ask yourself two things: First, is the element true; and second, whether you wish to admit
that it is true. A f t e r l l i s t the elements for you, be prepared to talk to me about the facts regarding the
offenses. Do you haveacopy of the charge sheet in front of you?
ACC: (Responds.)
19A.MJ: Before we begin PFC Manning, can you give me your fuU name please?
ACC: (Responds)
19B.MJ:Areyouintheactivearmy?
ACC: (Responds)
19C.MJ: How long have you been in the active army?
ACC: (Responds)
19D.MJ: Are youaUnited States citizen?
ACC: (Responds)

SPECIFICATIONS2.3.5.7,9.10.AND15OFCHARGEII
MJ: Nowlwant you to takealook at Specifications 2,3, 5, 7,9,10, and 15 of ChargelL These
Specifications allege the offense ofTransmitting Defense Information in violation ofTitle 18, United
States Code Section 793(e) and Article 134, UCMJ. Your counsel has enteredaplea of guilfy for you
to th^lesser included offenses for these Specifications. The elements of the lesser included offenses to
whichyouhaveente^enteredapleaofguilfyare:

(1) That at or near Contingency Operating Station Hammer,Iraq,

SPECIFICATION2:betweenonoraboutl4February2010and21February2010;you,
without authorization,had possession of, access to, or control over:avideo file named"12 JUL 07 C^
ENGAGEMENT^ONE30GCAnyoneavi";

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34381

SPECIFICATION 3:between on orabout 17March2010and 22 March2010; you, without
authorization, had possession of, access to, or control over: more than one classified memorandum
produced byaUnited States government intelligence agency;

SPECIFICATION 5: between on orabout5January2010and3February 2010; you, without
authorization, had possession of, access to, or control over: more than 20 classified records from the
Combined Information Data Network Exchange Iraq database;

SPECIFICATION7:between on or about5January 2010 and3February 2010; you, without
authorization, had possession of, access to, or control over: more than 20 classified records from the
Combined Information Data Network Exchange Afghanistan database;

SPECIFICATION 9: on or about8March 2010; you, without authorization, had possession of,
access to, or control over: more than3classified records fromaUnited States Southern Command
database;

SPECIFICATION 10:between on orabout 10 April 2010and 12 April2010; you, without
authorization, had possession of, access to, or control over: more than5classified records relating toa
military operationinFarahProvince,Afghanistan occurring on orabout4May 2009;

SPECIFICATION 15: on or about8March 2010; you, without authorization, had possession of,
accessto, or control over:aclassifiedrecord produced byaUnitedStatesArmyintelligence
organization, dated 18 March 2008;

(Elements Common to all specifications)

(2) that you willfully communicated the classified records, classified memorandum,videos, and
files described for each specification in element (l)toaperson not entitled to receive it; and

(3) under the circumstances, your conduct was to the prejudice of good order and discipline in
the armed forces or was ofanature to bring discredit upon the armed forces.

There are some definitions that go with these offenses.
Page6of55

34382

"Conduct prejudicial to good order and discipline" is conduct which causesareasonably direct and
obvious injury to good order and discipline. "Service discrediting conduct" is conductwhich tends to
harm the reputation ofthe service or lower it in public esteem.
With respect to "prejudice to good order and discipline,"the law recognizes that almost any irregular
or improper act on the part ofaservice member could be regarded as prejudicial in some indirect or
remote sense; however,only those acts in which the prejudice is reasonably direct and palpable is
punishable under this Article.
With respect to "service discrediting,"the law recognizes that almost any irregular or improper act on
the part ofaservice member could be regarded as service discrediting in some indirect or remote
sense; however,only those acts which would haveatendency to bring the service into disrepute or
which tend to lower it in public esteem are punishable under this Article.
Under some circumstances, your conduct may not be prejudicial to good order and discipline but,
nonetheless, may be service discrediting, aslhave explained those terms to you. Likewise, depending
the circumstances, your conduct can be prejudicial to good order and discipline but not be service
discrediting.
Anactisdone"willfully"ifitisdonevoluntarityandintentionalfywiththespecificintenttodo
somethingthelawforbids,thatis,withabadpurposetodisobeyordisregardthelaw.
"Possession" means the act ofhaving or holding properfy or the detention ofproperfy in one's power
or command. Possession may mean actual physical possession or constructive possession.
"Constructive possession" means having the abilify to exercise dominion or control over an item.
Possessioninherentlyincludesthepowerorauthorifytoprecludecontrolbyothers. Itispossible,
however,formorethanonepersontopossessanitemsimultaneously,aswhenseveralpeopleshare
control of an item.
Aperson has unauthorized possession of documents, photographs, videos, or computer files when he
possesses such information under circumstances or inalocation which is contrary to law or regulation
for the conditions ofhis employment.
In determining whether the person who received the information was entitled to have it, the trier of
fact may consider aU the evidence introduced at trial, including any evidence concerning the
classification status of tbe infomiation, any evidence relating to law and regulations goveming the

classification and declassification of national securify information, its handling, use, and distribution,
as weU as any evidence relating to regulations governing the handling, use, and distribution of
information obtainedfromclassifiedsystems.
The term "person" means any individuaL firm, corporation, education institution, financial
institution,governmentalentify,orlegalorotherentify.
41. M J : Do you understand the elements and definitions aslhave read them to you?
ACC:(Responds)
42. MJ:Doyouhaveany questionsaboutany ofthem?
ACC: (Responds )
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34383

43. MJ: Do you understand thatyour plea ofguilfy admits that these elements accurately describe
what you did?
ACC: (Responds.)
44. MJ: Do you beUeve and admit that the elements and definitions taken together correctly describe
whatyoudid?
ACC: (Responds.)
44A. Do you understand that if your plea to these lesser included offenseslhave just read is accepted,
theGovernment can proceedtotryyouforthegreateroffenses?
ACC: (Responds.)
44B. Do you understand thattodoso,theGovernmentneedprove,beyondareasonabledoubt,onfy
1)that the records, memoranda,files,videosor other material at issue was information related to the
national defense, 2) that you had reason to believe these materials could be used to the injury of the
UnitedStatesortotheadvantageofanyforeignnation,and3)thatthestatutel8USC793(e)exists?
ACC: (Responds.)

SPECIFICATI0N20F CHARGE I I
45. MJ:Atthistime,IwantyoutoteUmewhyyouareguilfyofthelesserincludedoffensesof
Specification2,3,5,7,9,10and15ofChargeH.Let'sbeginbyfirsthavingyouteUmewhat
happened with regards to Specification2of ChargelL Specification2deals with the video file named
"12JUL07C^ENGAGEMENT^ONE30GCAnyone.avi."YouwereintheArmybetween14
February 2010and21February 2010?
ACC: (Responds)
45A.MJ:Where were you living duringthistime?
ACC: (Responds.)
46. MJ: Areyou familiarwith thevideofilenamed''12JUL07C^ENGAGEMENT^ONE30GC
Anyoneavi?"
ACC:(Responds)
46A.This video has been markedAE
, and identified at Bates Numbers 00377845-00377845. Have
you reviewed the material marked as AE , and identified at Bates Numbers 00377845-00377845?
ACC:(Responds.)
46b. Do you have any questions about the material to which Specification2relates?
ACC:(Responds.)
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47. M J : How you are familiar with the video?
ACC: (Responds )
48i M J : ^ ^ e n was the first time thatyou saw thechargedvideo?
ACC: (Responds.)
MJ: ^Yhcrc were you when you first saw the charged rideo?
ACC:(Roopondo.)
47A.Where was the video stored when you accessed the video?
ACC: (Responds.)
50. M J : Did you ever takeacopy of the charged video out of theT-SCIF?
ACC: (Responds )
50A.WhatisaTSCIF?
ACC: (Responds.)
51. M J : When did you takeacopy of the charged video out of theT-SCIF?
ACC:(Responds.)
51A.Howdidyoutakeit?
ACC:(Responds)
52. MJ:WastheTSCIFatornearContingencyOperatingStationHammer,Iraq?
ACC:(Responds)
53. MJ:Didyouha^authorizationtothetakethechargedvideooutoftheT-SCIFforan official
purpose?
ACC:(Responds)
54. MJ: WTiat did you dowith the charged video when you took it out of theT-SCIF?
ACC: (Responds )
55. M J : Did you ever communicate the charged video toaperson not entitled to receive it?
ACC:(Responds)
56. M J : Who did you communicate the charged video to?
ACC: (Responds )
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34385

57. M J : When did you communicate the charged video to WikiLeaks?
ACC:(Responds.)
58. M J : How did you know that WikiLeaks was not entitled to receive the charged video?
ACC: (Responds.)
58A. As far as you knew at the time you communicated the video, was WikiLeaks an authorized
recipient of the video?
ACC:(Responds)
58B.AsIredtedearlier:Anadisdone"willfully"ifitisdonevoluntarityandintentionalfywiththe
specific intent to do something the law forbids, that is, withabad purpose to disobey or disregard the
law. Doyou understand thisdefinition?
ACC: (Responds )
58C. Do you believe that definition adequately describes your communication of the video?
ACC: (Responds )
58D.Amlcorrectinunderstandingthatyouintendedtocommumcatethevideoto WikiLeaks?
ACC:(Responds)
58E.Anddidyoudosovoluntarily?
ACC: (Responds.)
58F. How didyou communicateit?
ACC: (Responds.)
59. MJ:DidanyoneteUyouthatyouhadauthorizationtosendthechargedvideotoWikiLeaks.
ACC:(Responds)
60. M J : Were you sending the charged video to WikiLeaks for some official purpose?
ACC:(Responds)
6LMJ:Doyoubelieveyouhadreceivedanyauthorizationtosendthechargedvideoto WikiLeaks?
ACC: (Responds )
62. M J : So there is no doubt in your mind that you willfully communicated the charged video toa
person not entitled to receive it?
ACC: (Responds.)

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34386

152. MJ: Now with regards to Specifications^2, 3^ 5,7,9,10, and 15 do you admitthatyour conduct
was to the prejudice of good order and discipline in the armed forces or ofanature to bring discredit
upon the armed forces?
ACC: (Responds)
153. MJ: TeU me why you believe your conduct with regards to Specifications 2,3, 5, 7,9,10, and 15
was prejudicial to good order and discipline?
ACC: (Responds.)
154. MJ: TeU me why you believe your conduct with regards to Specifications 2,3, 5^ 7^9,10, and 15
was ofanature to bring discredit upon the armed forces?
ACC: (Responds.)
154A.MJ: Do you admit, then, that at or near COS Hammer,Iraq, between on or about 14 February
2010and on orabout21 February 2010,youhadunauthorizedpossession ofavideo file named"12
JUL07C^ENGAGEMENT^ONE30GC Anyoneavi"?
ACC: (Responds)
154B.MJ:DoyouadmitthatyouwillfulfycommunicatedthevideoidentifiedinSpecification2of
Charge II toaperson not entitled to receive it?
ACC: (Responds)
I54C.MJ:Doyouadmitthatunderthecircumstances,yourconductwastotheprejudiceofgood
order and discipline in the armed forces?
ACC: (Responds)
154E.MJ: Do you admit that under the circumstances, your conduct was ofanature to bring
discredit upon the armed forces?
ACC: (Responds)

SPECIFICATIONS3AND^OFCHARGEII
MJ: Now let'stalk about Specifications3and^ of Charge I I . Specifications3and^ deal with
classified memoranda produced byaUnited States government intelligence agency andaUnited
States Army intdligence organization. You were in the Army between 14 February2010and21
February 2010?
ACC: (Responds)
MJ:Wherewereyoulivingduringthistime?
ACC:(Responds)
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34387

63. M J : Are you familiar with the charged documents in Specifications3and^ of Charge II?
ACC:(Responds.)
63A. These memoranda have been markedAE
, and identified at Bates Numbers 0037808400378090. Have you reviewed the material marked as AE , and identified at Bates Numbers
00378084 00378090?
ACC: (Responds.)
63B. Do you have any questions about the material to which Specification3relates?
ACC: (Responds.)
64. M J : Without stating the exact intelligence organizations that produced these documents or stating
thecontentofthedocuments,howareyoufamiliarwiththem?
ACC:(Responds.)
65. MJiDidyoulookatthcmemorandainSpedfications3and15whenvuuwereinIrau?
ACC:(Reoponds.)
66. MJ:^YhcreinIraqwereyouwhenyousawthememorandainSpedfication3?
ACC:(Rcopondo.)
64A.Where were the Memoranda stored when you accessed them?
ACC:(Responds)
67. MJ:HowmanymemorandaarechargedinSpecification3?
ACC: (Responds )
68. MJ: Do you agree that there is more than one classified memorandum charged in Specification 3?
ACC: (Responds )
69^ M J : Where in Irao were you when vou saw the memorandum in Specification 15?
ACC:(Respondsi^
70. M J : Did vou ever takeacopy of the memoranda in Specifications3and^ out of theT-SCIF?
ACC:(Responds.)
70A.WhatisaTSCIF?
ACC: (Responds.)
71. M J : When did you takeacopy of the memoranda in Specifications3and^ out of theT-SCIF?
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34388

ACC:(Responds)
71A. How did you take the memoranda?
ACC: (Responds.)
72. M J : Was theTSCIF at or near Contingency Operating Station Hammer,Iraq?
ACC:(Reopondo)
73. M J : Did you have authorization to the takeacopy of the memoranda in Specifications3and^
outoftheT-SCIFfor an official purpose?
ACC: (Responds )
74. M J : What did you do with memoranda charged in Specifications3and^ when you took them
outoftheTSCIF?
ACC:(Responds)
75. MJ:DidyouevercommunicateacopyofthememorandachargedinSpecifications3and^toa
person not entitled to receive them?
ACC:(Responds.)
76.

MJ:WhodidyoucommunicatethememorandachargedinSpecifications3and^to?

ACC: (Responds.)
77. M J : When did you communicateacopy of the memoranda charged in Specifications3and^ to
WikiLeaks?
ACC:(Responds)
78. MJ: How did you know that WikiLeaks was not entitled to receiveacopy of the memoranda
charged in Specifications3an^f4^?
ACC: (Responds )
79. M J : Were the memoranda charged in S p e c i f i c a t i o n 3 ^ d ^ classified at the time you sent them
toWikiLeaks?
ACC:(Responds)
80. M J : How do you know that the memoranda charged in Specification3an^4^ were classified at
thetimethatyousentthem to WikiLeaks?
ACC: (Responds.)
80A. As far as you knew at the time you communicated the memoranda, was WikiLeaks an authorized
recipient of classified information.
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34389

ACC:(Responds)
80B.AsIrecited earlier: An actis done "willfully" i f i t is done voluntarily and intentionallywith the
specific intentto do something the law forbids, thatis, withabad purpose to disobey or disregard the
law. Do you understand this definition?
ACC: (Responds.)
80C. Do you believe that definition adequately describes your communication of the memoranda?
ACC: (Responds.)
80D.AmIcorrect in understanding that you intended to communicate the memoranda to
WikiLeaks?
ACC: (Responds.)
80E.Anddidyoudosovoluntarily?
ACC:(Responds.)
8OF.H0W did you communicate them?
ACC: (Responds.)
8LMJ:DidanyoneteUyouthatyouhadauthorizationtosendacopyofthememorandachargedin
Specifications3and^ to WikiLeaks.
ACC:(Responds.)
82. MJ: Were you sendingacopy of the memoranda charged in Specifications3and^ to WikiLeaks
for some official purpose?
ACC: (Responds.)
83. MJ:Doyoubelieveyouhadreceivedanyauthorizationtosendacopyofthememorandacharged
inSpecifications3a^^4^toWikiLeaks?
ACC:(Responds)
8 L M J : So thereisnodoubtinyourmindthatyouwiUfuUy communicated theclassifiedmemoranda
chargedinSpecifications3and 15 toaperson not entitled to receive them?
ACC: (Responds.)
152. MJ: Now with regards to Specifications 2^ 3, 5.7,9.10, and 1^ do you admit that your conduct
wastotheprejudiceofgoodorderanddisciphneinthearmedforcesorofanaturetobringdiscredit
upon the armed forces?
ACC:(Responds)

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34390

153. MJ: TeU me why you believe your conduct with regards to Specifications^^ 3^ 5^ 7.9.10. and 15
was prejudicial to good order and discipline?
ACC: (Responds.)
154. MJ: TeU me why you believe your conductwith regards to Specifications^ 3, 5. 7^9.10^ and 15
was ofanature to bring discredit upon the armed forces?
ACC: (Responds.)
154A.MJ: Do you admit, then, that at or near COS Hammer,Iraq, between on or about 17March
2010 and on or about 22 March 2010, you had unauthorized possession ofamore than one classified
memorandumproducedbyaUnitedStatesgovernmentintelligenceagency?
ACC: (Responds)
154B.MJ: Do you admitthatyou willfully communicated the memorandums identifiedin
Specification3of Charge II toaperson not entitled to receive them?
ACC: (Responds)
154C.MJ: Do you admit that under the circumstances, your conduct was to the prejudice of good
order and discipline in the armed forces?
ACC: (Responds)
155D.MJ: Do you admit that under the circumstances, your conduct was ofanature to bring
discredit upon the armed forces?
ACC: (Responds)

SPECIFICATIONS g^WW 15 OF CHARGE I I
MJ: Now let's talk about Specifications 3 and 15 of Charge IL Specifications 3 and 15 deal with
classified record mcmoraada produced by a United States government intelligence agency and a

United States Army intelligence organization. You were in the Army between 14 February 2010 and
21 February 2010?
ACC: (Responds)
MJ: Where were you living during this time?

63. MJ: Are you familiar with the charged documents in Specifications 3 and 15 of Charge II?
ACC: (Responds.)

Page 15 of 55

34391

63A.This record has been markedAE
, and identified at Bates Numbers 00378091-00378122.
Have you reviewed the material marked as AE , and identified at Bates Numbers 0037809100378122?
ACC: (Responds)
63B. Do you have any questions about the material to which Specification 15 relates?
ACC: (Responds.)
64. MJ: Without stating the exact intelligence organizations that produced these documents or stating
the content of the documents, how are you familiar with them?
ACC: (Responds.)
65. MJ: Did you look at the record memoranda in Specifications3and 15 when you were in Iran?
ACC:(Rospondo)
66. MJ: ^Vhere in Iraq were you when you saw the memoranda in Specification 3?^
ACC: (Responds.)
67. MJ: How many memoranda are charged in Specification 3?
ACC: (Responds^
68. MJ: Do vou g^ree that there is more than one classified memorandum charged in Specifications
ACC: (Responds.^
69. MJ: Where in Iran were you when you saw the record memoranda in Specification 15?
ACC: (Responds.)
64A. Where were the records stored when you accessed them?
70. MJ:Didyouevertakeacopyoftherecordm^mo^andainSpecifications^^15outoftheT
SCIF?
ACC:(Responds)
70A.WhatisaTSCIF?
ACC:(Responds)
71. MJ: When did vou takeacopy of the record memoranda in Specifications 3^nd 15 out of theTSCIF?
ACC:(Responds.)
71A. How did you take it?
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34392

ACC:(Responds)
72. MJ: Was theT SCIF at or near Contingency Operating Station Hammer,Iraq?
ACC:(Reopondo.)
73. MJ: Did you have authorization to the takeacopy of the record memoranda in Specifications^
and 15 outoftheT-SCIFfor an official purpose?
ACC:(Responds)
74. MJ: What did you do with record memoranda charged in Specifications 3^nd 15 when you took
them outoftheTSCIF?
ACC: (Responds )
75. MJ: Did you ever communicateacopy of the record memoranda charged in Specifications 3^nd
15 toaperson not entitled to receive them?
ACC:(Responds)
76. MJ: Who did vou communicate the record memoranda charged in Specifications 3^nd 15 to?
ACC:(Responds.)
77. MJ: W^en did vou communicateacopy of the record memoranda charged in Specifications 3^nd
15 to WikiLeaks?
ACC: (Responds )
78. MJ: How did you know that WikiLeaks was not entitled to receiveacopy of the record
memoranda charged in Specifications 3^^nd 15?
ACC:(Responds.)
79. MJ: Were the record memoranda charged in Specification 3^nd 15 classified at the time you sent
them toWikiLeaks?
ACC:(Responds)
80. MJ: How do vou know that the record memoranda charged in Specification 3^nd 15 were
classified at the time that you sent them to WikiLeaks?
ACC:(Responds)
80A. As far as you knew at thetimeyou communicated the records, was WikiLeaks an authorized
recipient of classified information.
ACC: (Responds.)

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34393

80B. Aslrecited earlier: An act is done "willfully" i f i t is done voluntarily and intentionally with the
specific intent to do something the law forbids, that is, withabad purpose to disobey or disregard the
law. Do you understand this definition?
ACC: (Responds.)
80C. Do you believe that definition adequately describes your communication of the records?
ACC: (Responds )
80D. Amicorrect in understanding that you intended to communicate the records to WikiLeaks?
ACC: (Responds.)
80E.Anddidyoudosoyoluntarily?
ACC: (Responds.)
80F. When did you decide to communicate the records?
ACC:(Responds)
80G. How did you communicate it?
ACC: (Responds.)
8LMJ:DidanyoneteUyouthatyouhadauthorizationtosendacopy ofthe recordmemoranda
charged in Specifications 3^nd 15 to WikiLeaks.
ACC:(Responds)
82. MJ:WereyousendingacopyoftherecordmemorandachargedinSpecifications3^nd15to
WikiLeaks for some official purpose?
ACC: (Responds)
83. M J : Do you believevou had anv authorization tosendacopv of the recordm^moranda charged
in Specifications3^nd 15 toWikiLeaks?
ACC:(Responds)
84. M J : So there is no doubt in your mind that you willfully communicated the classified record
memoranda charged in Spccifications3and 15 toaperson not entitled to receive them?
ACC: (Responds.)
152. MJ: Now with regards to Specifications 2, 3, 5, 7,9,10, and 15 do you admit thatyour conduct
was to the prejudice of good order and discipUne in the armed forces or ofanature to bring discredit
upon the armed forces?
ACC:(Responds)
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34394

153. M J : TeU me whyyou believe your conductwith regards to Specifications 2,3, 5, 7,9,10, and 15
was prejudicial to good order and discipline?
ACC:(Responds.)
154. M J : TeU me why you believe your conduct with regards to Specifications 2, 3,5, 7,9,10^ and 15
was ofanature to bring discredit upon the armed forces?
ACC: (Responds)
154A.MJ: Do you admit, then, that at or near COS Hammer,Iraq, on or about8March 2010, you
had unauthorized possession ofaclassified record produced byaUnited States Army inteUigence
organization?
ACC: (Responds)
154B.MJ: Do you admit that you willfully communicated the record identified in Specification 15 of
Charge I I toaperson not entitled to receive it?
ACC: (Responds)
154C.MJ:Doyouadmitthatunderthecircumstances,yourconductwastotheprejudiceofgood
order and discipline in the armed forces?
ACC: (Responds)
154D.MJ:Doyouadmitthatunderthecircumstances,yourconductwasofanaturetobring
discredit upon the armed forces?
ACC: (Responds)

SPECIFICATIONS5AND^OF CHARGE I I
MJ: Now let's talk about Specifications5and7of Charge I I . Specifications5and^ deal with
classified records from theCombinedlnformationDataNetworkExchange Iraq andAfghanistan
database. YouwereintheArmybetweenl4Fehruary2010and21February2010?
ACC: (Responds)
MJ:Wherewereyoulivingduringthistime?
85. M J : Are you familiar with the charged documents in Specifications5and^ of Charge II?
ACC:(Responds.)
85A.These records have been markedAE
.and identifiedatBates Numbers 00377912-00377919;
00377921 00377938;00377940 00377949;00377952 00377958;00377960 00377962;00377965
00377980; 00377983 00377986; 00377988 00378013; 00378016^00378026. Have you reviewed the
materialmarkedasAE^,andidentifiedatBatesNumbers00377912 00377919;00377921 00377938;
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34395

00377940 00377949;00377952 00377958;00377960 00377962;00377965 00377980;0037798300377986;00377988 00378013; 00378016 00378026?
ACC:(Responds)
87B. Do you have any questions about the material to which Specification5relates?
ACC: (Responds.)
86. MJ: What are the charged documents in Specification5and^ of Charge II?
ACC:(Responds)
87. MJ: How are you familiar with SIGACTscharged in Specification5and^?
ACC: (Responds )
88. MJ:HowmanySIGACTsarechargedinSpecification5?
ACC: (Responds.)
89. MJ:Doyouagreethatmorethantwenfy(20)SIGACTsarechargedinSpecification5?
ACC:(Responds)
90. MJ:HowmanySIGACTsarechargcdinSpecification7?
ACC: (Responds^)
9LMJ:Doyouagrcethatmnrethant^venty(20)SIGACTsarechargcdinSpecification7?
ACC: (Responds.)
92. MJ: Where in Iraq were you when you saw the SIGACTscharged in Specifications5and 7?
ACC:(Reopondo)
89A. Where were the records stored when you accessed them?
ACC:(Responds)
93. MJ: Did you ever takeacopy of the SIGACTscharged in Specifications5and^ out of theTSCIF?
ACC:(Responds.)
93A.WhatisaTSCIF?
ACC:(Responds)
94. MJ: When did you takeacopy of the SIGACTS charged in Specifications5and^out of theTSCIF?
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34396

ACC:(Responds)
94A.Howdidyoutaketherecords?
ACC: (Responds.)
95. M J : Was theTSCIF at or near Contingency Operating Station Hammcr,Iraq?
ACC: (Responds.)
96. M J : Did youhave authorization to the takeacopy of the SIGACTscharged in Specifications5
and^outoftheT-SCIF for an official purpose?
ACC: (Responds.)
97. M J : What did you do with the SIGACTscharged in Specifications5and^ when you took them
outoftheTSCIF?
ACC: (Responds.)
98. M J : Did you ever communicateacopy of the SIGACTS charged in Specifications5and^ toa
person not entitled to receive them?
ACC:(Responds.)
99. MJ:WhodidyoucommunicatethechargedSIGACTSinSpecifications5an^to?
ACC:(Responds)
100. MJ:WhendidyoucommumcateacopyoftheSIGACTschargedinSpecifications5and^to
WikiLeaks?
ACC:(Responds)
101. M J : How did you know that WikiLeaks was not entitled to receiveacopy of the SIGACTS
charged in Specifications5and^?
ACC:(Responds)
102. M J : Were the SIGACTs charged in Specification5and^ classified at the time you sent them to
WikiLeaks?
ACC:(Responds.)
103. M J : How do you know that the SIGACTS charged in Specifications5and^ were classified at
the time that you sent them to WikiLeaks?
ACC: (Responds)
103A. As far as you knew at the time you communicated the records, was WikiLeaks an authorized
recipient of classified information.
Page21of55

34397

ACC:(Responds)
103B. Aslrecited earlier: An act is done "willfully" i f i t is done voluntarily and intentionally with the
specific intent to do something the law forbids, that is, withabad purpose to disobey or disregard the
law. Do you understand this definition?
ACC: (Responds.)
I03C Do you believe that definition adequately describes your communication of the records?
ACC: (Responds.)
I03D. Amicorrect in understanding that you intended to communicate the records to WikiLeaks?
ACC: (Responds.)
103E.Anddidyoudoso voluntarily?
ACC: (Responds.)
103F. How did you communicateit?
ACC:(Responds)
104. MJ: Did anyone tell you that you had authorization to sendacopy of the SIGACTscharged in
Specifications5and^ to WikiLeaks.
ACC: (Responds.)
105. MJ:WereyousendingacopyoftheSIGACTschargedinSpecifications5and^to WikiLeaks
for some official purpose?
ACC:(Responds.)
106. MJ:DoyoubelieveyouhadreceiyedanyauthorizationtosendacopyoftheSIGACTscharged
in Specifications5and^ to WikiLeaks?
ACC:(Responds.)
107. M J : So there is no doubt in your mind that you willfully communicated the classified SIGACTs
charged in Specifications5and7toaperson not entitled to receive them?
ACC:

(Responds.)

152. M J : Now with regards to Specifications 2 ^ 5,7,9,10, and 15 do you admit that your conduct
was to the prejudice of good order and discipline in the armed forces or ofanature to bring discredit
upon the armed forces?
ACC:(Responds.)
153. M J : TeU me why you believe your conduct with regards to Specifications 2^^5,7,9,10^ and 15
was prejudicial to good order and discipline?
Page22of55

34398

ACC:(Responds.)
154. MJ: TeU me why you believe your conduct with regards to Specifications^^^5, 7,9,10, and 15
was ofanature to bring discredit upon the armed forces?
ACC:(Responds.)
154A.MJ: Do you admit, then, that at or near COS Hammer,lraq, between on or about5January
2010 and on or about3Fehruary 2010, you had unauthorized possession of more than 20 classified
records from the Combined Information Data Network Exchange Iraq database?
ACC: (Responds)
154B.MJ: Do you admitthat you willfully communicated the records identified in Specification5of
Charge II toaperson not entitled to receive them?
ACC: (Responds)
154C.MJ: Do you admit that under the circumstances, your conduct was to the prejudice of good
order and discipline in the armed forces?
ACC: (Responds)
154D.MJ:Doyouadmitthatunderthedrcumstances,yourconductwasofanaturetobring
discredit upon the armed forces?
ACC: (Responds)

SPECIFICATIONS5^^ND70F CHARGE II
MJ: Now let's talk about Specifications 5^^nd7of Charge I I . Specifications 5^and7deal with
classifiedrecordsfromtheCombinedlnformationDataNetworkExchangelraqandAfghanistan
database. You were in the Army between 14 February 2010 and21 February 2010?
A C C : (Responds)

MJ: Where were you living during this time?
85. MJ: Are you familiar with the charged documents in Specifications 5^and7of Charge II?
ACC:(Responds.)
85A. These records have been markedAE
, and identified at bates Numbers 00377846-00377846;
00377849 00377856;00377860 00377871;00377874 00377883;00377886^00377910.Haveyou
reviewed the material marked as AE ,and identified at Bates Numbers 00377846-00377846;
00377849 00377856; 00377860 00377871; 00377874 00377883;00377886^00377910?
ACC: (Responds )
85B.DoyouhaveanyquestionsaboutthematerialtowhichSpecification7relates?
Page23of55

34399

ACC:(Responds.)
86. M J : What are the charged documents in Specification 5 ^ n d 7 o f Charge II?
ACC:(Responds.)
87. M J : H o w are you familiarwith SIGACTscharged in Specification 5^nd 7?
ACC: (Responds.)
8 8 i M J : H o w many SIGACTsare charged in Specification 5?
ACC: (Responds.)
89i M J : Do you g^ree that more than twenty (20) SIGACTsare charged in Specifications
ACC: (Responds.)
90.MJ:HowmanySIGACTsarechargedinSpecification7?
ACC: (Responds.)
9LMJ:Doyouagreethatmorethantwenfy(20)SIGACTsarechargedinSpecification7?
ACC: (Responds.)
92. MJ:WhereinIraqwereyouwhcnyousawtheSIGACTschargedinSpecifications^^n^
ACC:(Re^pond^)
91A.Whereweretherecordsstoredwhenyouaccessedthem?
ACC:(Responds)
93. MJ:DidyouevertakeacopyoftheSIGACTschargedinSpecifications5^7outoftheT
SCIF?
ACC:(Responds)
93A.WhatisaTSCIF?
ACC:(Responds.)
94. M J : When did you takeacopy of the SIGACTS charged in Specifications ^^and7out of theTSCIF?
ACC: (Responds.)
94A. How did you take the records?
ACC: (Responds.)

Page24of55

34400

95iMJ: Was theTSCIF at or near Contingency Operating Station Hammer,Iraq?
ACC: (Roopondo )
96. MJ: Did you have authorization to the takeacopy of the SIGACTscharged in Specifications^
and7outoftheT-SCIFfor an official purpose?
ACC:(Responds)
97. MJ: What did you do with the SIGACTscharged in Specifications 5^and7when you took them
outoftheTSCIF?
ACC: (Responds )
98. MJ: Did you ever communicateacopy of the SIGACTS charged in Specifications^5^nd7toa
person not entitled to receive them?
ACC:(Responds)
99. MJ:WhodidyoucommunicatethechargedSIGACTSinSpecifications5^7to?
ACC:(Responds.)
100. MJ:WhendidyoucommunicateacopyoftheSIGACTschargedinSpecifications5^7to
WikiLeaks?
ACC:(Responds.)
10LMJ:HowdidyouknowthatWikiLeakswasnotentitledtoreceiveacopyoftheSIGACTS
charged in Specifications 5^and 7?
ACC: (Responds.)
102. MJ: Were the SIGACTscharged in Specification 5^nd7classified at thetimeyou sent them to
WikiLeaks?
ACC: (Responds)
103. MJ: How do you know that the SIGACTS charged in Specifications 5^nd7were classified at
thetimethatyousentthem to WikiLeaks?
ACC:(Responds)
103A. As far as you knew at the time you communicated the records, was WikiLeaks an authorized
recipient of classified information.
ACC:(Responds)
103B. Aslrecited earlier: An act is done 'willfully" ifit is done voluntarily and intentionally with the
specific intent to do something the law forbids, that is, withabad purpose to disobey or disregard the
law.Doyouunderstandthisdefinition?
Page25of55

34401

ACC: (Responds.)
103C. Do you believe that definition adequately describes your communication ofthe records?
ACC: (Responds.)
103D. Amicorrect in understanding thatyou intended to communicate the records to WikiLeaks?
ACC: (Responds.)
103E.Anddidyoudosovoluntarily?
ACC: (Responds.)
103F. When did you decide to communicate the records?
ACC: (Responds.)
104. MJ: Did anyone teU you that you had authorization to sendacopy of the SIGACTscharged in
Specifications 5^nd7to WikiLeaks.
ACC:(Responds.)
105. MJ:WereyousendingacopyoftheSIGACTschargedinSpecifications5^7to WikiLeaks
for some official purpose?
ACC:(Responds)
106. M J : Do you believe you had any authorization to sendacopy of the SIGACTscharged in
Specifications 5^nd7to WikiLeaks?
ACC:(Responds)
107. MJ:SothereisnodoubtinyourmindthatyouwillfullycommunicatedtheclassifiedSIGACTs
charged in Specifications5and7toaperson not entitled to receive them?
ACC: (Responds.)
152. MJ: Now with regards to Specifications 2 ^ ^ ^ 7,9,10, and 15 do you admit that your conduct
was to the prejudice of good order and discipline in the armed forces or ofanature to bring discredit
upon the armed forces?
ACC:(Responds)
153. M J : Tell me why you believe your conduct with regards to Specifications 2^^3^7,9,10, and 15
was prejudicial to good order and discipline?
ACC:(Responds)
154. MJ:TeUmewhyyoubelieveyourconductwithregardstoSpecifications2^^,7,9,10,and15
was ofanature to bring discredit upon the armed forces?
Page26of55

34402

ACC: (Responds )
154A.MJ: Do you admit, then, that at or near COS Hammer.Iraq, between on or about5January
2010 and on or about3February 2010, you had unauthorized possession of more than 20 classified
records from the Combined Information Data Network Exchange Afghanistan database?
ACC: (Responds)
154B.MJ: Do you admit thatyou willfully communicated the records identified in Specification7of
Charge II toaperson not entitled to receive them?
ACC: (Responds)
154C.MJ: Do you admit that under the circumstances, your conduct was to the prejudice of good
order and discipline in the armed forces?
ACC: (Responds)
154D.MJ: Do you admit that under the circumstances, your conduct was ofanature to bring
discredit upon the armed forces?
ACC: (Responds)

SPECIFICATI0N90FCHARGEII
MJ: Now let's talk about Specification9of Charge I I . Specifications9dealswith more than three
classified records fromaUnited States Southern Command database. You were in the Army between
14February2010and21February2010?
ACC: (Responds)
MJ: Where were you living during this time?
108. MJ:AreyoufamiliarwiththechargeddocumentsinSpecification9?
ACC:(Responds)
I08A. These documents have been markedAE
and identified at Bates Numbers 0037812300378140. Have you reviewed the material marked as AE , and identified at Bates Numbers
00378123 00378140?
ACC:(Responds)
108B. Do you have any questions about the material to which Specification9relates?
ACC: (Responds )
109. MJ:HowareyoufamUiarwithchargeddocumentsinSpedfication9?
ACC:(Responds)
Page27of55

34403

110. MJ: What are the charged documents in Specification 9?
ACC: (Responds.)
111. MJ: How many documents are charged in Spedfication 9?
ACC: (Responds.)
112. MJ: Do you agree that there are more than three classified records charged in Specification 9?
ACC: (Responds)
113. MJ: Where in Iraq were you when you saw the charged documents in Specification 9?
ACC:(Rcopondo)
112A. Where were these documents stored when you accessed them?
ACC: (Responds.)
114. MJ: Did you ever takeacopy of the charged documents in Specification9out of theT-SCIF?
ACC: (Responds.)
114A.WhatisaTSCIF?
ACC:(Responds.)
115. MJ:WhendidyoutakeacopyofthechargeddocumentsinSpecification9outoftheTSCIF?
ACC:(Responds)
115A. How did you take the records?
ACC: (Responds )
116. MJ:WastheTSCIFatornearContingencyOperatingStationHammer,Iraq?
ACC:(Responds)
117. MJ: Did youhaveauthorization to thctakeacopyofthechargeddocumentsinSpecification9
outoftheT-SCIFfor an official purpose?
ACC:(Responds.)
118. MJ:WhatdidyoudowiththechargeddocumentsinSpecification9whenyoutookthemoutof
theTSCIF?
ACC: (Responds )
119. MJ: Didyou ever communicateacopy ofthechargeddocumentsinSpecification9toaperson
not entitled to receive them?
Page28of55

34404

ACC:(Responds)
120. M J : Who did you communicate the charged documents in Specification9to?
ACC:(Responds)
121. M J : When did you communicateacopy of the charged documents in Specification9to
WikiLeaks?
ACC:(Responds)
122. M J : How did you know that WikiLeaks was not entitled to receiveacopy of the charged
documents in Specification 9?
ACC: (Responds.)
123. MJ: Were the documents charged in Specification9classified at the time you sent them to
WikiLeaks?
ACC: (Responds.)
124. MJ:HowdoyouknowthatthedocumentschargedinSpecification9wereclassifiedatthetime
thatyousentthem to WikiLeaks?
ACC:(Responds.)
124A. As far as you knew at the time you communicated the records, was WikiLeaks an authorized
recipient ofclassified information.
ACC:(Responds.)
124B. Aslrecited earlier: An act is done "willfully" i f i t is done voluntarily and intentionally with the
specific intent to do something the law forbids, that is, withabad purpose to disobey or disregard the
law. Doyou understand thisdefinition?
ACC:(Responds.)
124C. Do you believe that definition adequately describes your communication of the records?
ACC:(Responds.)
124D. Amicorrect in understanding that you intended to communicate the records to WikiLeaks?
ACC:(Responds)
124E. And didyoudoso voluntarily?
ACC: (Responds )
124F.Whendidyoudeddetocommunicatetherecords?
ACC: (Responds )
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34405

124G. How did you communicate it?
ACC:(Responds)
125. MJ: Did anyone teU you that you had authorization to sendacopy of the documents charged in
Specification9to WikiLeaks.
ACC: (Responds.)
126. MJ: Were you sendingacopy of the documents charged in Specification9to WikiLeaks for
some official purpose?
ACC: (Responds.)
127. MJ: Do you believe you had received any authorization to sendacopy of the documents charged
in Specification9to WikiLeaks?
ACC: (Responds)
128. MJ: So there is no doubt in your mind that you willfully communicated the classified documents
charged in Specification9 toaperson not entitled to receive them?
ACC: (Responds.)
152. MJ: Now with regards to Specifications 2, 3, 5, 7,9,10, and 15 do you admit that your conduct
wastotheprejudiceof good orderand disciphneinthearmedforcesorofanatureto bring discredit
upon the armed forces?
ACC: (Responds.)
153. MJ:TeUmewhyyoubelieveyourconductwithregardstoSpecifications2^^^^,9,10,and15
was prejudicial to good order and discipline?
ACC:(Responds)
154. MJ:TeUmewhyyoubelieveyourconductwithregardstoSpecifications2^^^^^9,10,and15
was o f a n a t u r e to bring discredit upon the armed forces^

ACC: (Responds.)
154A.MJ: Do you admit, then, that at or near COS Hammer,Iraq, on or about8March 2010, you
had unauthorized possession of more than3classified records fromaUnited States Southern
Command database?
ACC: (Responds)
154B.MJ: Do you admit thatyou willfully communicated the records identified in Specification9of
Chargelltoaperson not entitled to receive them?
ACC: (Responds)

Page30of55

34406

154C.MJ: Do you admit that under the circumstances, your conduct was to the prejudice of good
order and discipline in the armed forces?
ACC: (Responds)
154D.MJ: Do you admit that under the circumstances, your conduct was ofanature to bring
discredit upon the armed forces?
ACC: (Responds)

SPECIFICATION 10OFCHARGEH
MJ: Now let's talk about SpecificationlOof Charge I I . Specifications lOdeals with more than five
classified records relating toamilitary operation inFarah Province, Afghanistan occurring on or
ahout4May2009.YouwereintheArmybetween 14 February 2010and21 February 2010?
ACC: (Responds)
MJ: Where were you living during this time?
129. MJ:AreyoufamiliarwiththechargeddocumentsinSpecification10?
ACC:(Responds.)
129A. These records have been markedAE
and identified at Bates Numbers 0037742500377492; 00377496 00377498; 00377627 00377637;00377672 00377675;00378029 00378083. Have
you reviewed the material marked as AE , and identified at Bates Numbers 00377425-00377492;
00377496 00377498; 00377627 00377637;00377672 00377675; 00378029 00378083?
ACC:(Responds)
129B. Do you have any questions about the material to which Specification 10 relates?
ACC:(Responds)
130. M J : How are you familiar with charged documents in Specification 10?
ACC:(Responds.)
131. M J : What are the charged documents in Specification 10?
ACC: (Responds )
132. M J : When was the first time that you saw the charged documents in SpecificationIO?
ACC:(Reopondo)
133. M J : How many documents are charged in Specification 10?
Page31of55

34407

ACC:(Responds.)
134. M J : Do you agree that there are more than five (5) classified records relating toamilitary
operation inFarah Province, Afghanistan occurring on or about4May 2009 in Specification 10?
ACC: (Responds.)
135. M J : Where in Iraq were you when you saw the charged documents in Specification 10?
ACC: (Responds.)
135A. Where were these documents stored when you accessed them?
ACC: (Responds.)
136. M J : Did you ever takeacopy of the charged documents inSpecificationlOoutof theT-SCIF?
ACC: (Responds )
136A.WhatisaTSCIF?
ACC:(Responds)
137. MJ:WhendidyoutakeacopyofthechargeddocumentsinSpecification10outoftheTSCIF?
ACC:(Responds)
137A.Howdidyoutaketherecords?
ACC:(Responds)
139.

MJ:WastheTSCIFatornearContingencyOperatingStationHammer,Iraq?

ACC:(Responds)
140. M J : Did you have authorization to the takeacopy of the charged documents in Specification 10
out of theT-SCIF for an official purpose?
ACC:(Responds)
141. M J : What did you do with the charged documents in Specification lOwhen you took them out of
theTSCIF?
ACC: (Responds.)
142. M J : Did you ever communicateacopy of the documents charged in Specification lOtoaperson
not entitled to receive them?
ACC:(Responds.)
143. M J : Who did you communicate the charged documents in Specification lOto?

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34408

ACC:(Responds)
144. M J : When did you communicateacopy of the charged documents in Specification lOto
WikiLeaks?
ACC: (Responds )
145. M J : How did you know that WikiLeaks was not entitled to receiveacopy of the charged
documents in SpecificationIO?
ACC:(Responds)
146. M J : Were the documents charged in Specification lOclassified at the time you sent them to
WikiLeaks?
ACC: (Responds )
147. M J : How do you know that the documents charged in Specification lOwere classified at the time
that you sent them to WikiLeaks?
ACC:(Responds.)
147A.Asfarasyouknewatthetime you communicated the records, was WikiLeaksan authorized
recipient of classified information.
ACC: (Responds.)
147B. Aslrecited eariier: An act is done "willfully" i f i t is done voluntarily and intentionally with the
specific intent to do something the law forbids, that is, withabad purpose to disobey or disregard the
law. Do you understand this definition?
ACC:(Responds)
147C.Doyoubelievethatdefinitionadequatelydescribesyourcommunicationoftherecords?
ACC:(Rcsponds)
147D. Amicorrect in understanding that you intended to communicate the records to WikiLeaks?
ACC:(Responds.)
147E. And did you do so voluntarily?
ACC:(Responds)
147F.When didyou deddetocommunicatetherecords?
ACC: (Responds )
147G. How did you communicate it?
ACC: (Responds )
Page33of55

34409

148. MJ: Did anyone teU you thatyou had authorization to sendacopy of the documents charged in
Specification lOto WikiLeaks.
ACC: (Responds.)
149. MJ: Were you sendingacopy of the documents charged in SpecificationlOto WikiLeaks for
some official purpose?
ACC:(Responds.)
150. MJ: Do you believe you had any authorization to sendacopy of the documents charged in
SpecificationlOto WikiLeaks?
ACC:(Responds)
15LMJ:SothereisnodoubtinyourmindthatyouwillfuUycommunicatedtheclassifieddocuments
charged in Specification lOtoaperson not entitled to receive them?
ACC: (Responds.)
152. MJ: Now with regards to Specifications 2, 3,5, 7,9,10, o n d ^ do you admit that your conduct
wastotheprejudiceofgood orderand disciphneinthearmedforcesorofanaturetobringdiscredit
upon the armed forces?
ACC: (Responds.)
153. MJ:TeU me whyyou believe your conductwith regards to Specifications 2,3,5, 7^9,10,and^
was prejudicial to good order and discipline?
ACC:(Responds.)
154. MJ: TeU me why you believe your conduct with regards to Specifications 2,3,5, 7,9,10, a n d ^
was ofanature to bring discredit upon the armed forces?
ACC:(Responds.)
154A.MJ: Do you adn^it, then, that at or near COS Hammer,lraq, between on or about 10 April
2010 and on or about 12 April 2010, you bad unauthorized possession of more tban5classified records
relating toamilitary operation inFarah Province, Afghanistan occurring on or ahout4May 2009?
ACC: (Responds)
154B.MJ: Do you admit that you willfully communicated the records identified in SpecificationlOof
Charge I I toaperson not entitled to receive them?
ACC: (Responds)
154C.MJ: Do you admit that under the circumstances, your conduct was to the prejudice of good
order and discipline in the armed forces?
ACC: (Responds)
Page34of55

34410

154D.MJ: Do you admit that under the circumstances, your conduct was ofanature to bring
discredit upon the armed forces?
ACC: (Responds)

SPECIFICATIONS2^3^5^7.9.10.AND15OFCHAR^^
152. MJ: Nowwith regards to Specifications 2, 3,5, 7,9,10, and 15 do you admitthatyour conduct
was to the prejudice of good order and disdphne in the armed forces or ofanature to bring discredit
upon the armed forces?
ACC:(Reopondo.)
153. MJ: TeU me why you believe your conduct with regards to Specifications 2,3,5^ 7,9,10, and 15
was prejudicial to good order and discipline?
ACC:(Reopondo)
154. MJ: Tell me why you believe your conduct with regards to Specifications 2,3,5, 7,9,10, and 15
was ofanature to bring discredit upon the armed forces?
ACC:(Reopondo.)
155i MJ: Do you admit that at or near Contingency Operating StgtionHammer,Irgq^

SPECIFICATION2:bd^yecnonorabout1^February2010and21Februgr^2010;you,
without authorization, had possession of, access to, or control ovcr:avidco file named"12 JUL 07 C^
ENGAGEMENT ^ONE30GC Anyone.avi";
SPECIFICATION 3:bet^veen on or about 17March2010 and 22 March 2010; you, without
authorization, had possession of, access to, or control over: more than one dassified memorandum
produccdbyaUnitedStatesgovernmentintelligcnceagcncy;
SPECIFICATION5:bct^yccnonorabout5Januar^2010and3Fcbruary2010;you^ without
authorization, had possession of, access to, or control over: more than 20 classified records from the
Combined Information Datg Network Exchange Iraq database;
SPECIFICATION7:bct^ycenunorabout5Januar^2010and3Fcbruar^2010;you, without
guthorizgtion,hgd possession of, access to, or control over: more than 20 classified records from the
CombinedlnformationDataNet^vorkExchangcAfghanistan database;
SPECIFICATION 9: on or gbout8March 2010; you, without guthorizgtion,hgd possession of^
gccess to, or control over: more thgn3clgssified records fromgUnitcd States Southern Command
databgse;

Page35of55

34411

SPECIFICATION 10:bet^vecn on orabout 10 April2010andl2AprU2010; you, without
authorization, had possession of, access to, or control over: more than5clgssificd records relating toa
miUtary operation inFarah Province, Afghanistan occurring on or about4May 2009;
SPECIFICATION 15: on or about8March 2010; you, without authorization, had possession of,
access to, or control over:aclassified record produced byaUnited States Army intelligence
organization, dated 18 March2008?
ACC:(Reopondo.)
156. M J : Do you admit thatyou willfully communicated the classified records, classified
memorandum, ^^deos, and files described for Specifications 2^ 3, 5, 7,9,10, gnd 15 togperson not
entitled to receive them?
ACC:(Rospondo)
157. M J : Do you gdmit that under the circumstances, your conduct was to the prejudice of good
order and discipline in the armed forces?
ACC:(Reopondo)
158. MJ:Doyouadmitthatunderthecircumstances,yourconductwasofanaturetobringdiscredit
upon the armed forces?
ACC:(Reopondo)

SPECIFICATIONS 13 AND 1 4 0 F C H A R G E H
159. M J : Nowlwant you to takealook at Specifications 13 and 14of Charge H. These Specifications
allege the offense offraud and related activify in connection with computers in violation ofTitle 18,
United States Code Section 1030(a)(1) and Article 134, UCMJ. Your counsel has enteredaplea of
guilfy for you to the lesser included offenses for these Specifications. The elements of the lesser
included offenses to which you have enteraplea of guilfy are:
(1) That at or near Contingency Operating Station Hammer,Iraq,
SPECIFICATION 13: between on orabout28March2010 and on orabout4May 2010;
SPECIFICATION 14:between on orabout 14 February 2010 and 15February 2010;
you knowingly accessedacomputer onaSecret Internet Protocol Router Network.
(2) you obtained information that has been determined by the United States Government by
Executive Order or statute to require protection against unauthorized disclosure for reasons of
national defense or foreign relations; to wit:
SPECIFICATION 13:more than 75 classified United States DepartmentofStatecables;
SPECIFICATION 14:aclassified Department ofStatecable title "Reykjavik-13";
Page36of55

34412

(3) you communicated, delivered, transmitted, or caused to be communicated, delivered or
transmitted the information toaperson not entitled to receive it;
(4) youactedwillfuUy;and
(5) under the circumstances, your conduct was to the prejudice of good order and discipline in
the armed forces or was ofanature to bring discredit upon the armed forces.
The same definitions for prejudice to good order and discipline in the armed forces, and ofanature to
bring discredit upon the armed forces thatlread for you for the offenses charged in Specifications 2,
3, 5, 7,9,10, and 15 of Charge I I also apply to this ofiense. Do you need me to read these definitions to
youagain?
ACC: (Responds.)
An act is done "willfully" i f i t is done voluntarily and intentionally with the specific intent to do
something the law forbids, that is, withabad purpose to disobey or disregard the law.
Anactisdone"knowingly"ifitisdonevoluntarilyandintentionallyandnotbecauseofmistakeor
accident or other innocent reason.
The term "computer" means an electronic, magnetic, optical, electrochemical, or other high speed
data processing device periorming logical, arithmetic, or storage functions, and includes any data
storage facilify or communications facilify directly related to or operating in conjunction with such
device, but such term does not include an automated fypewriter or fypesetter,aportable hand-held
calculator,or other similar device.
In determining whether the person who received the information was entitled to have it, the trier of
factmayconsideraUtheevidenceintroducedattrial,includinganyevidenceconcerningthe
classification statusoftheinformation,anyevidencerelatingtolawandregulationsgoverningthe
classification and declassification of national securify information, its handling, use, and distribution,
as well as any evidence relating to regulations governing the handling, use, and distribution of
information obtained from classified systems.
The term "person" means any individual, firm, corporation, education institution, financial
institution, governmental entify,or legal or other entify.
160. M J : Do you understand the elements and definitions aslhave read them to you?
ACC:(Responds)
I6LMJ:Doyouhaveanyquestionsaboutanyofthem?
ACC:(Responds.)
162. M J : Do you understand that your plea of guilfy admits that these elements accurately describe
whatyoudid?
ACC:(Responds.)

Page37of55

34413

163. MJ: Do you believe and admit thatthe elements and definitions taken together correctly
describewhatyoudid?
ACC: (Responds )
163A. Do you understand that if your plea to these lesser included offenseslhave just read is
accepted, the Government can proceed to try you for the greater offenses?
ACC: (Responds.)
163B. Do you understand that to do so, the Government need prove beyondareasonable doubt only
1)that you knowingly accessedacomputer exceeding authorized SIPR access, 2) that you had reason
to believe these materials could be used to harm the United States or to the advantage of any foreign
nation,and3)thatthestatute18USC 1030(a)(1)exists?
ACC: (Responds.)
164. MJ:Atthistime,IwantyoutoteUmewhyyouareguilfyofthelesserincludedofiensesof
Specification 13andl4ofChargeH. Let's begin hyfirsthavingyouteUmewhathappenedwith
regards to Specification 14 of Charge I I . Specification 14dealswithaclassified Department ofState
cabletitled"Reykjavik13." YouwereintheArmybetween 14 February 2010and21 February
2010?
ACC: (Responds)
164A.MJ:Wherewereyoulivingduringthistime?
ACC:(Responds)
ACC:(Roopondo.)
165. MJ:AreyoufamiliarwiththeclassifiedDepartmentofStatecabletitled"Reykjavik13?"
ACC: (Responds )
165A. This cable has been markedAE
,and identified at Bates Numbers 00377392-00377394.
Have you reviewed the material marked as AE , and identified at Bates Numbers 00377^9200377394?
ACC:(Responds)
165B. Do you haveanyquestionsaboutthematerialtowhichSpecification

14 relates?

ACC: (Responds )
166. MJ: How are you familiar with the charged cable in Specification 14?
ACC:(Responds.)
167.

MJ:WhcnwasthefirsttimethatyousawthcchargedcableinSpecification1^?

ACC: (Responds.)
Page3^of55

34414

168. MJ: Where were you when you first saw the charged cable in Specification 14?
ACC:(Rospondo.)
166A. Where was this cable stored when you accessed it?
ACC: (Responds.)
169. MJ: Did you ever takeacopy of thecharged cable in Specification 14 out of theT-SCIF?
ACC:(Responds.)
169A.WhatisaTSCIF?
ACC: (Responds.)
170. MJ: When did you takeacopy ofthechargedcablein Specification 14 outoftheTSCIF?
ACC: (Responds )
170A.Howdidyoutakethecable?
ACC: (Responds.)
17LMJ:WastheTSCIFatornearContingcncyOpcratingStationHammcr,Iraq?
ACC:(Rooponds.)
180. MJ:DidyouhaveauthorizationtothetakethechargedcablesinSpecifications43^ndI4outof
theT-SCIF for an official purpose?
ACC: (Responds )
181. MJ: What did you do with the charged cables in Specifications ^3-and 14 when you took them
outoftheTSCIF?
ACC:(Responds)
182. MJ: Did you ever communicate the charged cables in Specifications 13 and 14 toaperson not
entitled to receive it?
ACC:(Responds)
183. MJ:WhodidyoucommunicatethechargedcablesinSpecifications^3^nd14to?
ACC: (Responds.)
184. MJ: ^Yhen did you communicate the charged cables in Specification 13 to WildLeaks?
ACC: (Responds.)
185. MJ: When did you communicate the charged cable in Specification 14 to WikiLeaks?
Page39of55

34415

ACC:(Responds)
186. M J : How did you know that WikiLeaks was not entitled to receive the charged cables in
Specifications 43^nd 14?
ACC: (Responds.)
187i M J : Were the cables charged in Specification 13 classified at the time you sentthcm to
WiltiLcaks?
ACC: (Responds.)
I881MJ: How do you Imow that the cables charged in Specification 13 were classified atthe time that
you sent them to WiltiLcaks?
ACC: (Responds.)
189. MJ: Was the cable charged in Specification 14classified at the time you sent it to WikiLeaks?
ACC: (Responds.)
190. M J : How do you know that the cable charged in Specification 14 was classified at the time that
yousentitto WikiLeaks?
ACC:(Responds)
190A. As far as you knew at the time you communicated the records, was WikiLeaks an authorized
recipient of dassified information.
ACC:(Responds)
190B.
WasthisdocumentadocumentthathadbeendeterminedbytheUnitedStatesGovernmentby
Executive order or statute to require protection against unauthorized disclosure for reasons of
national defense or foreign relations?
ACC:(Responds)
190C. How do you know?
ACC:(Responds)
190D.AsIrecitedearlier:Anactisdone''willfully"ifitisdonevoluntarilyandintentionallywiththe
specific intent to do something the law forbids, that is, withabad purpose to disobey or disregard the
law. Do you understand thisdefinition?
ACC: (Responds )
190E.Doyoubelievethatdefinitionadequatelydescribesyourtakingandcommunicationofthe
records?
ACC:(Responds)
Page40of55

34416

190F. So, amicorrect in understanding you intended to take possession of the records?
ACC: (Responds.)
190G. And did you do that voluntarily?
ACC: (Responds.)
190H. Amicorrect in understanding that you intended to communicate the records to WikiLeaks?
ACC: (Responds.)
1901. And did you do so voluntarily?
ACC: (Responds )
190J. When did you decide to communicate the records?
ACC: (Responds.)
190R. How did you communicate it?
ACC: (Responds )
191. M J : Did anyone teU you that you had authorization to send the charged cables in Specifications
^3-and 14 to WikiLeaks.
ACC:(Responds)
192. M J : Were you sending the charged cables in Specifications 1^3^nd 14 to WikiLeaks for some
official purpose?
ACC:(Responds)
193. M J : Do you believeyouhadany authorization tosendthechargedcablesinSpecifications 13
and^14 to WikiLeaks?
ACC:(Responds.)
194. M J : So there is no doubt in your mind that you willfully communicated the charged classified
cables in Specifications 13 and 14 toaperson not entitled to receive them?
ACC:(Responds.)
195. MJ:NowwithregardstoSpecifications^3^nd^14doyouadmitthatyourconductwastothe
prejudice of good order and discipline in the armed forces or ofanature to bring discredit upon the
armed forces?
ACC:(Responds)
196. M J : Tell me why you believe your conduct with regards to Specifications 43^nd 14 was
prejudicial to good order and discipline in the armed forces?
Page41of55

34417

ACC:(Responds)
197. M J : TeU me why you believe your conductwith regards to Specifications ^3^nd 14 was o f a
nature to bring discredit upon the armed forces?
ACC: (Responds.)
197A.MJ: Do you admit, then, that at or near COS Hammer, Iraq, between on or about 14 February
2010and on or about 15February 2010, you knowingly accessedacomputer onaSecret Internet
Protocol Router Network?
ACC: (Responds)
M J : Do you admit that you obtained information that has been determined by the United States
Government b^ Executive Order or statute to require protection against unauthorized disclosure for
reasons of national defense or foreign relations, to wit:aclassified Department of State cable titled
"Reykjavik13"?
ACC: (Responds)
MJ: Do youadmitthatyou willfully communicated, delivered, transmitted, orcaused to be
communicated, delivered or transmitted the information toaperson not entitled to receive it?
ACC: (Responds)
MJ:Doyouadmitthatunderthecircumstances,yourconductwastotheprejudiceofgoodorderand
discipline in the armed forces?
ACC: (Responds)
MJ:Doyouadmitthatunderthecircumstances,yourconductwasofanatiiretobringdiscreditupon
the armed forces?
ACC: (Responds)
MJ:Doeseithercounsdbeheveanyfurtherinquiryisrequfred?
TC/DC:(Respond.)
M J : Now let's talk about Specification 13 of Charge I I . Specifications 13 deals with more than
sevenfy-five (75) classified United States Department of State cables. YouwereintheArmybetween
14February20IOand21 February 2010?
ACC: (Responds)
MJ:Wherewereyoulivingduringthistime?
172.MJ:AreyoufamiliarwiththechargedcablesinSpecification13?
ACC: (Responds )

Page42of55

34418

172A.These cables have been markedAE
and identified at Bates Numbers 00376954-00376959;
00376964 00377030; 00377033 00377044; 00377049 00377098; 00377104^00377136; 00377141
00377185; 00377188 00377365;00377370 00377391;00377395 00377424;00377499 00377572;
00377638 00377653; 00377660 0037767L Have you reviewed the m a t e r i a l m a r k e d a s A E ^ a n d
identified at Bates Nunibers00376954 00376959; 00376964 00377030; 00377033 00377044; 00377049
00377098; 00377104 00377136; 00377141 00377185; 00377188 00377365; 00377370 00377391;
00377395 00377424; 00377499 00377572; 00377638-00377653; 00377660 00377671?
ACC:(Responds)
172B. Do you have any questions regarding the material to which Specification 13 relates?
ACC: (Responds.)
173. M J : How areyoufamiliarwith charged cablesinSpecification 13?
ACC:(Responds)
174. M J : How many documents are charged in Specification 13?
ACC: (Responds )
175. MJ:Doyouagreethattherearemorethansevenfyfive(75)c1assifiedcableschargedin
Specification 13?
ACC:(Responds.)
I75A. When did you first see these cables?
ACC:(Responds)
176. M J : Where, in Iraq, were you when you saw the charged cables in Specification 13?
ACC:(Responds)
176A. What were these cables stored when you accessed them?
ACC:(Responds.)
177. M J : Did you ever takeacopy of the charged cables in Specification 13 out of theT-SCIF?
ACC:(Responds.)
177A.WhatisTSCIF?
ACC: (Responds )
178. M J : When did you takeacopy of the charged cables in Specification 13 out of theT-SCIF?
ACC:(Responds)
178A. How did you take the cables?
Page43of55

34419

ACC:(Responds)
179. MJ: Was theT-SCIF at or near Contingency Operating Station Hammcr,Iraq?
ACC:(Roopondo)
180. M J : Did you have authorization to the take the charged cables in Specifications 1 3 a n d ^ out of
theTSCIF?
ACC: (Responds)
181. M J : What did you do with the charged cables in Specifications 1 3 a n d ^ when you took them
outoftheTSCIF?
ACC: (Responds.)
182. MJ: Did you ever communicate the charged cables in Specifications 13 a n d ^ toaperson not
entitled to receive it?
ACC:(Responds)
183. MJ:WhodidyoucommunicatethechargedcablesinSpecifications13and^to?
ACC:(Responds.)
184. MJ:WhendidyoucommunicatethechargedcablesinSpecification 13 to WikiLeaks?
ACC:(Responds.)
185^ MJ:^^^en didyou communicatethechargedcableinSpcdficationl^to WiltiLcaks?
ACC: (Responds.)
186. MJ:HowdidyouknowthatWikiLeakswasnotentitledtoreceivethechargedcablesin
Specifications 13 a n d ^ ?
ACC: (Responds)
187. M J : Were the cables charged in Specification 13 classified at the time you sent them to
WikiLeaks?
ACC:(Responds)
188. MJ: How do you know that the cables charged in Specification 13 were classified at the time that
you sent them to WikiLeaks?
ACC: (Responds )
188A. As far as you knew at the time you communicated the records, was WikiLeaks an authorized
recipient of classified information.
ACC: (Responds )
Page44of55

34420

I88B. Was this documentadocumentthat had been determined by the United States Government by
Executive order or statute to require protection against unauthorized disclosure for reasons of
national defense orforeign relations?
ACC: (Responds.)
188C. How do you know?
ACC: (Responds )
188D. Aslrecited earlier: An act is done "willfully" i f i t is done voluntarily and intentionallywith the
specific intent to do something the law forbids, that is, withabad purpose to disobey or disregard the
law. Do you understand thisdefinition?
ACC: (Responds )
188E.Doyoubelievethatdefinitionadequatelydescribesyourtakingandcommumcationofthe
records?
ACC: (Responds )
188F. So, amicorrect in understanding you intended to take possession of the records?
ACC:(Responds)
188G. And didyou dothatvoluntarily?
ACC:(Responds)
188H.AmIcorrectinunderstandingthatyouintendedtocommunicatetherecordsto WikiLeaks?
ACC: (Responds )
l88LAnddidyoudosovoluntarily?
ACC:(Responds)
188J. When did you decide to communicate the records?
1881^. How did youcommunicateit?
ACC: (Responds.)
189. MJ: Was the cable charged in Specification 14classificd at the time you sent it to WiltiLcaks^
ACC: (Responds.)
190. MJ: How do you Imow that the cable charged in Specification14was classified at thetimethat
yousentittoWildLeaks?
ACC: (Responds.)
Page45of55

34421

191. MJ: Did anyone teU you thatyou had authorization to send the charged cables in Specifications
13 a n d ^ to WikiLeaks.
ACC: (Responds.)
192. MJ: Were you sending the charged cables in Specifications 13and^ to WikiLeaks for some
official purpose?
ACC: (Responds )
193. MJ: Do you believe you had received any authorization to send the charged cables in
Specifications 13 o n d ^ to WikiLeaks?
ACC: (Responds )
194i MJ: So there is no doubt in your mind that you willfully communicated the charged classified
cables in Specifications 13 and 14 toaperson not entitled to receive them?
ACC: (Responds^)
195. MJ:NowwithregardstoSpecifications13and^doyouadmitthatyourconductwastothe
prejudice of good order and discipline in the armed forces or ofanature to bring discredit upon the
armed forces?
ACC: (Responds.)
196. MJ: TeU me why you believe your conduct with regards to Specifications 13 and 14was
prejudicial to good order and discipline in the armed forces?
ACC:(Responds)
197. MJ:TeUmewhyyoubelieveyourconductwithregardstoSpecifications13and^wasofa
nature to bring discredit upon the armed forces?
ACC:(Responds)
197A.MJ: Do you admit, then, that at or near COS Hammer,Iraq, between on or about 14 Febmary
2010 and on or about 15 February2010, you knowingly accessedacomputer onaSecret Internet
Protocol Router Network?
ACC: (Responds)
197B.MJ: Do youadmitthatyou obtainedinformationthathasbeendeterminedbythe UnitedStates
Government by Executive Order or statute to require protection against unauthorized disclosure for
reasons of national defense or foreign relations, to wit: more than 75 classified United States
DepartmentofStatecables?
ACC: (Responds)
197C.MJ: Do you admit that you willfully communicated, delivered, transmitted, or caused to be
communicated, delivered or transmitted the information toaperson not entitled to receive them?
Page46of55

34422

ACC: (Responds)
198E.MJ: Do you admit that under the circumstances, your conduct was to the prejudice of good
order and discipline in the armed forces?
ACC: (Responds)
197E.MJ: Do you admit that under the circumstances, your conduct was ofanature to bring
discredit upon the armed forces?
ACC: (Responds)
197F.MJ: Does either counsel believe any further inquiry is required?
TC/DC: (Respond.)
198. MJ: Do you admit that at or near Contingency Operating Station Hammer,Iraq,
SPECIFICATION13:bct^vecnonorabout28March2010andonorabout^May2010;
SPECIFICATIONIO: bet^veenonoraboutl^February2010andl5Februar^2010;
youlmowinglyaccesscdacomputeronaSecretlnternctProtocolRouter Network?
ACC: (Responds.)
199. MJ:DoyouadmitthatyouobtaincdinfnrmatinnthathasbeendeterminedbytheUnitcdStates
Government by Executive Order or statute to require protection against unauthorized disclosure for
reasons of national defense or fordgnrdations; to wit:
SPECIFICATION 13:morethan 75 classified UnitedStates DepartmentofStatecables;
SPECIFICATION 14:adassifiedDepartmentofStatecabletitlc''Reykjavik 13"?
ACC: (Responds )
200. MJ: Do you admit yon communicated the charged information in Specificationl^ 13 and 14toa
person not entitled to receive it?
ACC:(Roopondo.)
201. MJ: Do you admit you acted willfully in communicating the charged information in
Specifications 13 and 14 toaperson not entitled to receive it?
ACC:(Reopondo.)

202. MJ: Do you admit that under the drcumstances, your conduct was to the prejudice of good
order and discipline in the armed forces?
ACC: (Responds.)
Page47of55

34423

303. M J : Do you admit that under the circumstances, your conduct was of a nature to bring discredit
upon the armed forces?
ACC: (Roopondo.)
NOTE: lifter covering all offenses to which the accused pled guilty^ the MJ continues as
follows:
MJ: Docs either counsel believ e any further inquiry is required?
TC/DC: (Roopond.)

SPECIFICATION 5 OF CHARGE H I
M J : Please look at Specification 5 of Charge I I I . I t alleges the offense of violating a lawful general
regulation in violation of Article 92, UCMJ. The elements of the offense of violating a lawful general
regulation are:

(1) That there was in existence a certain lawful general regulation in the following terms:
Paragraph 7-4, Army Regulation 380-5, dated 29 September 2000;

(2) That you had a dufy to obey such regulation; and

(3) That between on or about 8 January 2010 and on or about 27 May 2010, at or near
Contingency Operating Station Hammer, Iraq, you violated this lawful general regulation by
wrongfully storing classified information.

There are some definitions that go with this offense.
NOTE I: Proof of existence of regulation. The existence of the regulation must be proven or judicial
notice taken.
NOTE 2: Lawfulness of regulation. The lawfulness of the regulation is not a separate element ofthe
offense. Thus, the issue of lawfulness is determined by the MJ and is not submitted to the members. See
United States V. New, 55 MJ 95 (CAAF 2001); UnitedStates v. Deisher, 61 MJ313 (CAAF 2005). To be
lawful, the regulation must relate to specific military duty and be one that the was authorized to be given
to the accused. The regulation must require the accused to do or stop doing a particular thing either at
once or at a future time. A regulation is lawful ifreasonabfy necessary to safeguard and protect the
morale, discipline, and usefulness ofthe members ofa command and is directfy connected with the
maintenance ofgood order in the services.

Page 48 of 55

34424

As a matter of law, the regulation in this case, as described in the specification, if in fact
there was such a regulation, was a lawful regulation.
NOTE 3: Order or regulation determined to be unlawful. A regulation is illegal i f , for example, it is
unrelated to military duty, its sole purpose is to accomplish some private end, it is arbitrary and
unreasonable, and/or it is given for the sole purpose of increasing the punishment for an offense which it
is expected the accused may commit
NOTE 7: Orders or regulations containing conditions. When an alleged regulation prohibits a certain
act or acts "except under certain conditions," (e.g., "except in the course of official duty" or "except with
proper authorization "), and the issue is raised by the evidence, the burden is upon the prosecution to
prove that the accused is not within the terms of the exception.
To do something "wrongfuUy" means to do something without legal justification or excuse.
20. M J : Do you understand the dements and definitions as I have read them to you?
ACC: (Responds.)
21. M J : Do you have any questions about any of them?
ACC: (Responds.)
22. M J : Do you understand that your plea of guilfy admits that these elements accurately describe
what you did?
ACC: (Responds.)
23. M J : Do you believe and admit that the elements and definitions taken together correctly describe
what you did?
ACC: (Responds.)
24. M J : At this time, I want you to tell me why you are guilfy of the offense listed in Specification 5 of
Charge I I I . You were in the Army between 8 January 2010 and 27 May 2010? You were in the Army
between 14 February 2010 and 21 February 2010?
ACC: (Responds)
24A. MJ: Where were you living during this time?
ACC: (Responds.)
TeU me what happened.
ACC: (Responds.)
25. M J ; Arc you familiar with Army Regulation 380-5?
ACC: (Responds.)
26. M J : Have you received training on the requirements of Army Regulation 380-5?
Page 49 of 55

34425

ACC: (Responds.)
27. MJ: Did you admit that you had a dufy to obey Army Regulation 380 5?
ACC: (Responds.)
28. MJ: Why do you feel you had a dufy to obey Army Regulation 380 5?
ACC: (Responds.)
29. MJ: What did you boUcvc Army Regulation 380 5 required you to do with classified
information?
ACC: (Responds.)
30. MJ; Are you famUiar with paragraph 7 4 of Army Regulation 380 5?
ACC; (Responds.)
31. MJ; How arc you familiar with paragraph 7 4 of Army Regulation 380 5?
ACC: (Responds.)
32. MJ; Do you admit you riolatcd paragraph 7 1 of Army Regulation 380 5 by wrongfuUy storing
classified information?
ACC: (Responds.)
NOTE: Paragraph 7-4, ofAR 380-5, reads "Classified information that is not under the personal control
and observation of an authorized person, is to be guarded or stored in a locked security container, vault,
room, or area, pursuant to the level of classification and this regulation..."
33. MJ:TeU me what happened with respect to Specification 5 of Charge H I . How did you wrongfully
store classified information?
ACC: (Responds.)
24A. Where did you store this information?
ACC: (Responds.)24B. Where was your personal computer located?
ACC: (Responds.)
24C. Were you aware that classified information not under the personal control and observation of an
authorized person, is to be guarded or store in a locked securify container, vault, room, or area
pursuant to its level of classification?
ACC: (Responds.)
34. M J : Did anyone tell you that you had authorization to store classified information on your
personal computer or other personal electronics?

Page 50 of 55

34426

ACC:(Responds)
35. MJ: Were you storing classified information on your personal computer for some official
purpose?
ACC:(Responds.)
36. MJ: Do you believe you had any authorization to store classified information on your personal
computer?
ACC: (Responds )
36a. Do Soldiers haveadufyto obey Army Regulations?
ACC: (Responds.)
37. MJ: So there is no doubt in your mind that you violated Army Regulation 380-5by storing
dassifiedinformationyourpersonalcomputer?
ACC: (Responds.)
38. MJ: Do you admit that you knew that there was in existenceacertain lawful general regulation in
thefollowingterms: Paragraph 7^,ArmyRegulation380 5,dated29September 2000?
ACC: (Responds.)
39. MJ:Doyouadmitthatyouhadadufytoobeythisregulation?
ACC: (Responds.)
40. MJ:Doyouadmitthatbetweenonorabout8January2010andonorabout27May2010,ator
nearContingencyOperatingStationHammer,Iraq,youviolatedthislawfulgeneralregulationby
wrongfully storing classified information on your personal computer?
ACC: (Responds.)

Page51of55

34427

2-2-4. MAXIMUM PUNISHMENT INQUIRY
M J : Trial Counsel, what do you calculate to be the maximum punishment authorized in this case
based solely on the accused's guilfy plea?
TC: (Responds.)
MJ: Defense Counsel, do you agree?
DC: (Responds.)
MJ: PFC Manning, the maximum punishment authorized in this case based solely on your guilfy plea
is to forfeit aU pay and allowances, to be reduced to Private, E-l, to be confined for 20 years, and to be
dishonorably discharged from the service, reduction to E 1, total forfeiture of all pay and allowances,
confinement for 20 years, and a dishonorable discharge.
204. MJ: On your plea of guilfy alone this court could sentence you to the maximum punishment
which I just stated. Do you understand that?
ACC: (Responds.)
205. MJ: Do you have any questions as to the sentence that could be imposed as a result of your guUfy
plea?
ACC: (Responds.)
M J : Trial Counsel, is there a pretrial agreement in this case?
TC: (Responds.)
NOTE: Ifno pretrial agreement exists, continue below. I f a pretrial agreement exists and
tt-ial is by Judge Alone: Go to paragraph 2-2-6, PRETRIAL AGREEMENT (JUDGE
ALONE). I f a pretrial agreement exists and trial is with court members: Go to paragraph
2-2-7, PRETRIAL AGREEMENT
(MEMBERS).

Page 52 of 55

34428

2-2-5. IF NO PRETRIAL AGREEMENT EXISTS
MJ: Counsel, even though there is no formal pretrial agreement, are there any unwritten
agreements or understandings in this case?
TC/DC: (Respond.)
206. MJ: PFC Manning, has anyone made any agreements with you or promises to you to
get you to plead guilfy?
ACC: (Responds.)
NOTE: Go to paragraph 2-2-8, ACCEPTANCE OF GUILTY PLEA.

Page 53 of 55

34429

2 2 ^ . ACCEPTANCE OFGUILTYPLEA
MJ: Defense Counsel, have you had enough time and opportunify to discuss tbis case with
PFCManning?
DC:(Responds.)
207. M J : PFC Manning, have you had enough time and opportunify to discuss this case
with your defense counsel?
ACC: (Responds.)
208. M J : PFC Manning, have you, in fact, consulted fully with your defense counsel and
received the fuU benefit of their advice?
ACC:(Responds.)
209. M J : Are you satisfied that your defense counsel'sadvice is in your best interest?
ACC:(Responds)
210. M J : And are you satisfied with your defense counsel?
ACC: (Responds.)
21LMJ:AreyoupleadingguiltyvoluntarilyandofyourownfreewiU?
ACC: (Responds.)
212. M J : Has anyone made any threat or tried in any way to force you to plead guilfy?
ACC:(Responds.)
213. MJ:Doyouhaveanyquestionsastothemeaningandefiectofapleaofguilfy?
ACC:(Responds.)
214. M J : Do youfullyunderstandthemeaningandeffectofyourplea of guilfy?
ACC:(Responds)
215. M J : Do you understand that even though you believeyouareguilfy,youhavethe
legalrigbttopleadnotguilfyandtoplaceuponthegovernmenttheburdenofproving
yourguiltbeyondareasonabledoubt?
ACC: (Responds.)
216. M J : Takeamoment now and consult again with your defense counsel, then tell me
whetheryoustiUwanttopleadguilfy? (Pause.) Do youstiUwanttopleadguilfy?
Page54of55

34430

ACC: (Responds.)
MJ: PFC Manning, I find that your plea of gudfy is made voluntarily and with full
knowledge of its meaning and effect. I further find that you have knowingly, intelligently,
and consciously waived your rights against self-incrimination, to a trial of the facts by a
court-martial, and to be confronted by the witnesses against you. Accordingly, your plea of
guilfy is provident and is accepted. However, I advise you that you may request to
withdraw your guilfy plea at any time before the sentence is announced, and if you have a
good reason for your request, I will grant it.
NOTE: Ifthe accused has pled guilty to only some of the charges and
specifications or has pled guilty to lesser included offenses, ask the trial counsel
ifthe government is going forward on the offenses to which the accused has
pled not guilty. Ifthe government is going forward on any offenses, do not
enter findings except to those offenses to which the accused pled guilty as
charged in a members' trial (Le., ifthe plea was to a LIO or by exceptions and
substitutions and the government is going forward as charged, do not enter
findings).
MJ: Trial Counsel, is the Government going forward on the offenses to which the accused
has plead not gudfy?
TC: (Responds.)
NOTE: If issues of guilt remain in ajudge alone (contest), go to Section III
and in a court members (contest) go to Section V. The MJ should not inform
the court members ofplea and findings ofguilty prior to presentation of the
evidence on another specification to which the accused pled not guilty unless
the accused requests it or the guilty plea was to a LIO and the prosecution
intends to prove the greater offense. Unless one of these two exceptions exists,
the flyer should not have any specifications/charges which reflect provident
guilty pleas if other offenses are being contested
NOTE: Ifno issues of guilt remain, continue below:
MJ: Accused and Defense Counsel, please rise. PFC Manning, in accordance with your
plea of guilfy, this court finds you:
.{ XE "Pleas:Guilfy plea, findings" }
NOTE: For judge alone (sentencing), go to Section IV and for court members
(sentencing only), after marking the fiyer, go to Section VI.

Page 55 of 55

34431

UNITEDSTATESOF AMERICA
V.
Manning, BradleyE.
PFCU.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHaU
FortMyer, Virginia 22211

)
)
)
)
^
^
)
)
)

Government Response to
the Accused's Proffered
Statement and Associated
Instructions
14 February 2013

On5Febmary 2013,this Court ordered any Government ftling addressing legal issues
raised by the accused'sproposed providence inquiry and plea to be submitted no later thanl4
Febmary 2013. This ftling articulates those issues.
RELIEFSOUGHT
The United Statos respedfiilly requests the Court preclude the defi^nse from offering this
statomont into evidence, orally or as an exhibit, as part ofthe providence inquiry. Any statement
offered bythe accused during fhe providence inquiry should be tailored to the elements oftho
offenses and comprised ofrelevant infbrmation. Should the Court permit the accused to offt^ra
dif^rent prepared StatemenL fhe subsequent statement should he made available fbr the Court's
review in advanceofits submission. The United States requests this rdiefin order to maintain
compliance with the principles underlying germane Rules fbr Courts-Martial, to ensure fhe
record contains only relevant infbnnation, and to minimize potential defects in the providence
inquiry that would render if vulnerable to appellate review.
The United States also requests an additional line ofquesfioning during the inquiry thaf
dariftes the dements of18U.S.C.^ 793(e);spedftcally,that the "documents" clause does not
require the Govemment to prove the accused had "reason to believe" infbrmation relating to the
national defi^nse could be used to fhe injury ofthe United States or tothe advantage ofaforeign
nation. This additional inquiry will protect fhe record and ensure the accused'splea is knowing
andintolligonL The Govemment does not dispute that the speciftcations alleging misconduct in
yiolation ofl8U.S.C.^ 793(e), as written, contain this additional elemenL

BURDEN OFPERSUASION AND BURDEN OFPROOF
The burden of proof on any factual issue, the resolution of which is necessary to deddea
motion, shall be by preponderance ofthe evidence. Rule fbr CourtsMartial (RCM) 905(c)(1).
Tho burden ofpersuasion on any factual issue, the resolution of which is necessary to deddea
motion, shall be on the moving party. RCM 905(c)(2).
FACTS
The accused is charged with aiding the enemy by giving intelligence, one spedftcation of
disorders and neglects to the prejudiceof good order and discipline and service discrediting,
eight speciftcations alleging misconduct in violafion of18U.S.C.^ 793(e), ftve speciftcations
^

APPELLATEEXHIEIT^^^^^
PAGEREFERENCED;
^
PAGE
OF
PAGES

34432

allegingmiscondud in violation of18USC.^641,two speciftcations allegingmisconduct in
violation of18U.S.C.^ 1030(a)(1), and ftve speciftcations alleging violations oflawfiil general
regulations, in violation of Articles 104, 134, and 92, Uniform CodeofMilitary Justice (UCMJ).
See Charge SheeL The misconduct is alleged to have occuned betweenlNovember 2009 and
27May2010 Id^
In its ftling dated 30 January 2013,the defi^nse provided the Court with notice ofplea
and fomm, proposed providence inquiry questions and instmctions, as well asacopy ofa
statement the defense intends the accused to provide the Court in written form and possibly
throughaswom oral declaration. The proffered statement addressesawide variety ofissues—
induding the accused'spersonal background and motivation. The instmcfions propose script
language fbr the Court to elidt the accused'sstatement that appears to be largely based on fhe
Benchbook language fbr accepting stipulations of fad fosupportaguilty plea. See Military
Judge'sBenchhookSec.2-2-2.
On5Febmary 2013,the United Statos requested the Court'sleave to submit its own
providonceinquiryquosfionshecauseofpotontial legal issues raised by the defense'sftling. Tho
Court mled that the Government would submit proposed providence inquiry questions in
accordance with the original calendar date, but permitted the Govemment to address legal issues
raised by fhe accused'sproposed providence inquiry and plea inasubsequent ftling submitted no
1aforfhanl4Fehmary2013.
WITNESSES/EVIDENCE
The prosecution requests fhe Court consider fhe Charge Sheet and the referenced ftlings
and mlings.
LEGALAUTHORITY AND ARGUMENT
LACCUSED'S PROFFERED STATEMENT AND ASSOCLATED INSTRUCTIONS
The accusod'sproffbredstatomont and associated instmctions are problematic in both
form and substance. SedionAaddressos tho subsfantivo concems; namoly,that tho statement
contains largely irrelevant materiaL SedionBdiscusses the purpose and form ofprovidence
inquiries, how they differ from stipu1ations(as outlined by the Rules for Courts-Martial and case
law), and the problems inherent in the defense'sproposed use of the StatemenL SectionC
addresses additional policy concems and potential appellate issues should the statement be
admitted in its current form during the providence inquiry.
A.

Content ofSfafement is Largely Irrelevant

Military RuleofEvidonce (MRE) 401 provides that "relevant evidence" is anything
havinga"tendeneyto make tho oxistonce of any fad that is of consequence to tho dotormination
oftho action more probable or loss orprohable than it would he without the evidonco." MRE
403 provides fbrthe exclusion ofrdevant evidence "ifits probative value is substantially
outweighed bythe danger of unfairprejudice, confusion ofthe issues,"mis1eading the fact-

34433

ftnder, or to avoid "undue dday,waste oftime, or needless presentation of cumulative
evidence."
OnI6January 2013,fhis Court mled that motive evidence is onlyrelovant to tho
accused'sknowledgo in the Speciftcation ofChargeL SeeAE 470. The accused'smotive is
thorofbro irrelevant to the offenses to which tho accused is pleading guilty. This Court also
stated:
For the spodftcations charging violations of18 U.S.C. ^^ 793(e)
and 1030(a)(l) the element that the accused had "reason to believe
fhe information he communicated could he used to the injury ofthe
United States orto tho advantagoof any fbreignnation" is an
ohjodive element evaluated on fads actually known by the
accused. It does not require the Govemmentto prove tho accused
know the infbrmation ho communicated could he used tothe injury
of the United Statos or tothe advantage of any fbreign nafion.Tho
Govemment must prove that the accused had reason to believe that
fhe infbrmation he communicated could be used to the irijury oftho
United States or to the advantage of any fbreign nation. Either tho
accused had reason to believe or he didn^LAsuhjedive conclusion
hy the accused that he did not have reason to believe the
infbrmation he communicatodcould ho usodtothoinjuryof the
United States or to fhe advantage or any foreign nation is
immaterial to this elemenL
As cunently written, the accused'sstafemont addresses infbrmation thaf is not relevantto
this case or to tho dements at issue in this court-martiaL The accused provides background and
ancillary personal infbrmation. He discusses his reasons fbr joining the mi1itary,how and why
he became an analysL and his experience with potential separation from the United States Army.
He also touches on his likes and dislikes about work, his activities and accomplishments on other
intelligence projects, and his personal life. For example, in paragraph 6(d) ofthe proflered
StatemenL the accused writes: "Iwas excited to seeTyler, and plarraed on talking toTyler about
where our relationship was going, and about my time in fraq." In short, noneofthe topics outlined
above relate to any element ofany speciftcation.
Slightly less attenuated, yet still inelevant according to this Court'sprevious mlings, the
accused offers evidence in extenuation and mitigation, and explains his motives. Forexample,
the accused writes in paragraph 6(j):
1 believed that i f the general public, especially the American
public, had access to the infbrmation contained within the CIDNEIandCIDNEAtables,this could sparkadomestic debate on the
role of tho military and our fbreign policy in general, as well as it
related to Iraq and Afghanistan.lalsobelievodadetailed analysis
ofthodataover alongporiod oftime, hy different sectors of
sodoty,mightcausesodofytoreevaluatethonood,orevenfhe
desire to engage in CT and COIN operations that ignored the

34434

complex dynamics ofthe people living in the affected environment
each day.
The accused also discusses his thoughts on the legitimacy ofthe WikiLeaks organization,
tho personal value ofhis chats with Julian Assange, and his affompts to contad other
organizations in order to disdoso the Govommont infbrmation he amassed. Forexample,
regarding his chats with Assange, tho accused writes in paragraphs 8(w)and8(x):
Over tho next few months, I stayed in frequent contad with
NathanieL Woconvorsedonnear1yadai1ybasis,andl felt wo
were developing a friendship. Tho conversations covered many
topics, andlenjoyed the abilityto talk about pretty much anything,
and not just the publications that theWLO was working on. In
retrospecLlrealize these dynamics were artiftdal, and were valued
more by myself than NathanieL For me, these conversations
represented an opportunity to escape from the immense pressures
and anxiety that I oxporiencod and built up throughout tho
doploymenL It seemed that asltriod harder to ^^fttin^^ at work, the
morelsoomed to alienate my peers, and lose respecL trust and tho
supportlneeded.
Finally,fhe accused also discusses tho contents of documents, and offers his opinion on
tho sensitivity ofthe documents. For example, in paragraph 3(k), he writes:
In my perspective, the infbrmation contained within a single
SIGACT,or group of SIGACTsis not very sonsitive.Tho events
encapsulated within most SIGACTs involve either enemy
engagements or casualties. Most ofthis infbrmation is publidy
reported by the Public Affairs Offtce (PAO), embedded media
pools, or host-nation (HN) media.
BytheGovemmonf'sostimation,twontyfburofthethirty-fburpagesofthostatomontaro
ftllod with fhis inelevant materiaL None oftho areas identifted above address the elements of
tho offenses to which the aeeusod seeks to plead guilty. So, while tho acousod'sstatomont offers
ahealthy dose ofextenuation and mitigation, this infbrmation has no place in the merits portion
oftho proceedings, and is certainlynot appropriately placed in the providence inquiry. Itis,
however, predsdythe type ofinfbrmation that an accused should be permitted to express, either
under oath or through an unswom StatemenL during presentencing. SeeRCM 1000(c)(2).
B.
The Proffered Statement does not Conform to the Purpose or Form oftho Providence
Inquiry as Outlined in tho Rules fbr Courts-Martial
RCM910addrossos the entry ofpleas. RCM910(e)exp1ains thaf the accuracy of such
pleas is established through inquiry bythe military judge. Tho inquiry is designed to boa
oolloquy between the accused and fhe judge, discussing "the fads and circumstances
surrounding tho act or ads charged in order to establishafacfual basis fbrfhojudge'scondusion
thattheaccusedis.infacL^i1ty"UnitedStatesv.Davenport,9M.J.364,366(C.M.A.1980)

34435

(discussing United StatesvCaro.40CMR 247(CMA 1969))Whi1estipu1ationsoffad can
be used to supplement the inquiry,they carmot stand alone in lieu ofthat personal colloquy. See
United StatosvSawinski,16MJ 808,811 ( N M C M R 1983)(charaderizin^ United Statesv
Lanzor,3MJ60(CMA 1877),UnifedStatosvDavis.48CMR892(NCMR 1974).and
UnitodStatesv Swoisford.49CMR 796(ACMR 1975)) Thomilitarviudgemustbo
convinced that the accused is personally convinced of fads necessary to establish guilL RCM
910(e)discussion. Moreover, the militaryjudge must also bo convinced that potential defenses
are negated bythe facts. Id. Tho inquiry must thorofbro be driven by tho facts and drcumstancos
underlying the elements ofthe offenses.
Statements made duringaprovidence inquiry may bo used fbr sentendng. See United
Sfatesv.HolL27M.J.57.61(C.M.A.1988). Nonetheless, tho "providence inquirymaynot ho
used asatool by the military judge or Government to olidt responses that only servo to magnify
theGovommonf'scaseina^^avation." United Statesv.Chambors, 2006 WL4572919
(N.MCtCrimApp)(unpub)(dtin^UnitedStatesvSauor,15ML113.114(CMA 1983);
Estellev.Smith, 451 U.S. 454(1981)). Additionally.in United Statesv.Cahn,theAfr Force
Court ofMilitary Review stated that the distinction hofwoen use ofCare inquiry statements in
sentencing and to prove contested charges is "critical" fbr both policy and practical reasons. Soo
United StatosvCahn,31ML 729,730 31 ( A F C M R 1990)Thoudidiscussin^the useof
providence inquiry statements against an accused on contosfodspodftcations, fhe Court
cautioned against setting up mies which tempt tho parties to peppertheirpleas with favorable
statomonts. Soo id. at 731("From the standpoint ofinfbrmation favorable to an accused, this
practice would tempt an accused fo'gamish'hisC^^^ testimony with favorable statements,
thereby placing such statements before the court without being subject to cross-examination.").
In light ofthe purpose articulated by Care, these cases suggest the providence inquiry should not
be used asavehide fbr eliciting helpful sentendng evidence fbr the defense or govemmenL
An accused isfreeto take the stand and testify under oath during the merits portion ofthe
proceedings, thus subjecting himself to cross examination by the United States. Additionally,
tho Rules fbr CourtsMartial afford the accused the opportunify to makoaswom or unswom
statement during sentendng. RCM 1001(c)(2)("The accused maytosfify,make an unswom
statemenL or both in extenuation, in mitigation orto rebut matters presented by the
prosecution."). However,swom oral testimony shall be subject to cross-examination, and any
unswom statement subject to the prosecution'sopportunity to rebut any statements of facts
thoroin.SooRCM1001(c)(2)(B)(C)
In this case, the statement submitted bythe defense is inappropriate inboth form and
substance. Substantivdy,the statement does not contain the sort ofuncontestod facts or
infbnnation helpful to focus issues, such as those fbund inastipulation. Likewise, because the
stafomont contains largely irrelevant infbrmation, it is not geared toward establishing fads
underlying fhe elements ofthe offenses to which the accused is pleading—which is the purpose
ofaprovidonce inquiry.
Additionally,fho form and suhsfanco ofthe proffered statement allow the defense and the
accused to drcumvent fhe adversarial process outlined in the Rules fbr Courts Martial; namely,
by avoiding cross-examination ofthe accused and rebuttal oftho evidence. Where the Rules

34436

discuss the enti^ of evidence to the record^whether by stipulation, by testimony,or by
statement they contemplate the participation ofboth parties. Parties must agree toa
stipulation; testimony is subject to cross-examination; and statements by an accused at
prosontendng are subject, at leasLt^rebuttaL In this case, the statement is submitted bythe
defense asastipulation would be, and, prosumab1y,is intended to haveasimilar effecL Thisis
evidenced bythe defense proposing the Court use fhe stipulation offad script as the colloquy fbr
the StatemenL However, it has not boon agreed upon bythe parties. It should not be accorded
tho same procedural rospod and allowed to supplement the Court'sin-person inquiry. Also,
given the statement is not element-driven, it would be inappropriate to allow tho statement to bo
shielded from cross-examination in fhe same way that statements made during tho providence
inquiry are normallyprotedod. Finally,theGovomment'sundorstanding is that tho Court's
interest inaproffored statement by the accused was driven bythe Court'sdesire to bo provided
with background infbrmation and orient the Court fo issues of contention. In that sense, tho
proffered statement fails fo satisfy this interesL
C.
Tho Statement'slndusionofBroadTopics Increases the Probability oflnconsistency and
Thereby the Onus on the Court toTrack tho Accused'sStatemonfs fbr Follow-up During
Proceedings
The providence "inquiry must be made to ascertain ifan accused is convinced ofhis own
^ilt"UnifedStatesvMo^lia,3ML216.218(CMA 1977) frmust establish "not onlvthat
the accused himsdfbdieves he is guilty hut also that tho factual circumstances as revealed by
tho accused himself ohjodively support [hisjplea." United Statosv.Hi^^ns,40 M.J.67,68
(C.M.A. 1994)(dtingDayenport,9M.J.at 367). If an accused, aftoraploa of gui1ty,sotsupa
matter inconsistent with tho plea of guilfy,ap1oa of not guilfy shall bo ontorod in tho reeord. Soo
Artido45,UCMJ
Tho decision to accept or rojodaguiltyploa will be reviewed hy an appellate court "fbr
an abuse ofdiscretion and questions oflaw arising from the guilty plea de novo." UnitedStates
v.Inabinette, 66 M.J.320, 321 (C.A.A.F.2008). "When evaluatingaguilty plea, an appellate
court will not disturb the plea unless the record fails to objedivdy support the guilty plea, or
whore there is evidence in'substantial conftict'with the plea ofguilfy." UnitedStatesv.
Schiewe.64MJ 703,706(CGCCA 2007);seealso United SfatesvAdams,2005WL
139182 (NMCtCrimApp)(unpub)(dtin^ United StatesvBullman,56ML 377,381
(C.A.A.F.2002)). The record must contain some reasonable ground fbr ftnding an
inoonsistoncy,"in order fbr the plea to be overtumed. See United Statosv.Lo^an, 22
U S C M A 349,350 51 ( C M R 1973)
Tho reviewing authority will "applythe substantial basis tosLl^^king at whetherthero in
something in tho record oftrial,with regard to the factual basis or the law,that would raisea
substantial question regarding tho accused'sguilty plea." lnabinotto,66M.J.at321. Inthis
roviow,tho totality ofthe record will be considered. See Adams, 2005 WL139182
(N.M.Ct.Crim.App.)(unpuh.);Schiowo,64M.J.at706. This includes not onlythe accused's
statements but also other ovidonco in the record. United Statosv.Garda,44 M.J.496,498
(C.A.A.F.1996). Indeed, tho "import and intent of[tho Care inquiry in the ftrst placoj is that the
record contain tho tme fads ofthe accused'soffonso." United Statosv.Johnson,1M.J.36, 39

34437

(C.M.A. 1975). UnderCaro, the "guiltyplea deals with tmth and all parties have an obligation to
establish that tmth on the record." Id. So,"where[anjinconsistont matter is sot up, the judge
has the duty to inquire into the circumstances...[and if appropriatejto reject the plea." United
Statosv Lee,16ML 278,280(CMA 1983) TheCareinquirymustbethorou^,"with
particular emphasis being placed on the accused'sunderstanding offhe nature and effect ofhis
plea, tho fadual basis fbr his admission ofguih, and fnllinquirybythe militaryjudge into any
inconsistondes that may develop." See Logan, 22U.S.C.M.A.at351.
Inconsistencies that have concemed appellate courts include whenaploa is inconsistent
with elements ofthe charged offi2nsos(soo,e.^.,Hi^^ns,40 M.J.at 68), when the accused has
accepted guilt foraperiod oftimo which does not accord with known fads(soo,o.^.,Johnson,
40 M.J.at 38), or when the tenor offhe accused'sanswers during an inquiry do not match tho
guilt required hy tho offense(see, e.g.,Bullman, 56 M.J.at 381).
Tho United States does not suggest tho defense maynot present fads with which the
United States disagrees. Tho accused should be allowed to speakfreelyduring the inquiry on
matters relevant to fhe issues hofbro tho Court, so that the Court may become convinced oftho
factual predicate underlying the accused'sguilL SeeSchiewe,64M.J.at708. However, to
allow broad commentary on umelafed issues not suhjod to ready rebuttal fhroatons issue
confusion by mixing relevant and inelevant information on the record—making if oxponontially
more difftcult to track fads to tho elements at issue. The inclusion of extraneous commentary
also raises the possibility ofinconsistendes between fads elicited during the inquiry and those
presented during the merits portion ofthe proceedings. It thereby muddies the water and
provides more material fbr the court to monitor. Moreover, the United States intends to move
fbrward on the greater offenses and, in so doing,wi11 present evidence relating to fhe elements of
both the lesser and greater of^nses. As such, to admit this largely inelevant statement as swom
evidence would make an already complicated inquiry untenable. In short, the inclusion of
extraneous infbrmation in the providence inquiry requires the Court and the parties tobe hyporvigilant to ensure any inconsistondes are identifted and addressed.
D.
Court Provided Guidelines Would Provide an Altemative to Oufri^fRojodion oftho
Accused'sStafomont
The militaryjudge is responsible fbr "ensuring that the court-martial proceedings are
conducted inafair and orderlymanner,without utmecessary dday or waste oftime or
resources." RCM 801(a) discussion. Additiona11y,tho Military Judge shall "oxerdse reasonable
control overthe proceedings to promote the purposes offhe [Rules fbr Courts-Martialj. RCM
801(a)(3). MRE104 vests fhe Military Judge with the power to dotormine preliminary questions
ofevidence admissibility.
Tho United States concodos it is within the Court'shroad discretion to control her
courtroom and allow the accused tomake or suhmitastatomont that will bo entered into
ovidonco. The United States further acknowledges that prepared statements are occasionally
given, in pradice, in response to open-ended inquiries from the Court(o.g."To11 mo what
happened?"). Accordingly,shou1d fhe Court wish to permit suchastatemonLgi^on what has
already boon proffered by tho defense, the United Statos requests the Court establish several

34438

guidelines. FirsL the statement should be tailored to the fads and circumstances directlyrelevant
tothe elements ofthe offenses to which the accused is pleading and which therefore can serve as
the factual predicate fbr his guilL Second, the United States recommends the Court bo provided
withacopy offhis statement in advance ofits submission, so that the Court may ensure tailored
and relevant information will in fad entertho record. This will avoid potentially timo-intonsivo
on-theftyintormptions ofthe accused'sstatemenL Fina11y,the United Statos recommends tho
Court accept suchastatomont in response to an open-ended providence inquiry question, and
not, as tho defi^nse suggests, inamarmer moro boftttingastipulation.
IL ADDITIONAL LINE OF QUESTIONING
In making his plea, the accused will waive certainrights—indudingtho righf against solf^
incrimination as to the offi^nso to which he is pleading. This waivermust bo "knowing,
intolli^enL and voluntary."UnitedStatesvDusonhorry,23U.S.C.M.A. 287.291 (C.M.A.
1975); see also Artide45,UCMJ (stating thataplea of not guilty shall be entered if tho accused
appears to have entered the plea ofguilfy through lack ofunderstanding ofits meaning and
effect). Additiona11y,befbreacceptingap1ea of gui1ty,the military judge must address the
accused and infbrm him ofthe natureofthe offense to which the plea is offered, induding tho
elements ofeach offense to which the accused has pleaded guilty. RCM 910(c)(1).
In an abundance of caution, tho United States requests the Court instmd tho accused
duringthe providence inquiry that underthe "documents" or "tangible items" clause of18
U.S.C.^ 793(e), the Govemment is not required to prove that the accused had reason to believe
tho infbnnation transmitted "could bo used to the injury ofthe United States." In other words,
the "reason fobo1iovo"sdontorroquiroment only applies to intan^hle infbrmation relating fo tho
national defonse See United Statos I^iriakou,2012WL4903319,at^1(EDVaOcL 16,
2012) ("1mportantly,^ 793[ejdiffbrontiatos between'tangible'ND1, described in tho
'documents'dause('any documenL...ornote relating tothe national defense'), and'intangible'
NDI, described in the'infbrmafion'dause('infbrmation relating to the national defense').");
United Statesv.Rosen,445FSupp. 2d 602,612 (E.D.Va. 2006) ("Second, Confess expanded
tho category ofwhat could not bo communicated pursuant to 793(d) and(o)fo include
'information relating to the national dofense,'hut modifted this additional item hyaddinga
sdenterre^uiromenL"): United SfatesvDrako.818FSupp2d909,916 17("As tho
Govemment points out, however, Dofi^ndant'shriefconftatos the different ^^^.^^^^
requirements required fbr criminal violations involving the'documents'dause and the
'infbrmation'dausoofSodion 793(e)...Thus, only the second'infbrmation'dause requires
proof ofthe'reason to bdieve'dement.").
This issue was initially raised by the Govemment in its Response to Court'sClariftcation
ofRuling on LIO Max Punishments, dated16November 2012. SeeAE 391. Although "reason
fobeliovo" is an element ofthe charged spedftcafions and not ofthe lossor-indudedof^nsosfo
which tho accused is pleading gui1ty,theGovenunont believes it would bo pmdent fbr tho Court
to ensure the accused is fully infbrmed offhe nature and effect ofhis plea, induding any
potential variations and their offed at triaL Tho Court indicated that if would instmd tho
accused on the remaining elements in the groateroffensos. Toproted the record and ensure the
accusod'splea is knowing andintolligonL the Court should also instmd on fhe elements oftho
8

34439

'documents'dause i n ^ 793(e)and howftndingson those elements at trial would result in tho
same exposure as the charged offenses. Seel8U.S.C.^ 793(o).
CONCLUSION
Tho United Statos rospedfiilly requests tho Court predudo the defense from entry ofthis
statement into evidence. Tho statement and its associated instmctions seek to secure the
protections ofastipulation in the fomm ofaprovidencoinquiry,whi1e disregarding the form and
purpose ofboth. Addifiona11y,mudd1ed by extraneous and inelevant infbrmation, the statement
threatens issue confusion and will make it more difftcult to track facts to the elements at issue.
This raises tho probability ofinconsistendes and fherebyfhe likelihood of appellate attention fo
tho providence ofany accoptod plea. Assuming,
the Court permits tho defense to
prosontadifferent stafomont oftho accused, the Govemment suggests tho Court establish
guidelines under which any such statement must conform. Chiofty,tho United States proposes
that any statement made or submitted in the context ofthis providence inquiry he submitted to
the Court in advance and ho tailored to address fads and drcumstancosrolovant to tho elements
oftho offenses at issue. Finally,thoUnitod Statos requests tho Court insfmd tho accused on tho
elements ofthe "documents" clause in18U.S.C.^ 793(e), to ensure the plea is knowing and
intdligenL

Ti/iM-^^t^
)EAN MORROW
»T, JA
Assistant Trial Counsel

I certify that I served or caused to be served a tmo copy of tho above on Defense Counsel
via electronic mail, on 14 Febmary 2013.

T^-'Wv^
lAN MORROW
:PT, JA
Assistant Trial Counsel

0 34440

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE RESPONSE TO
v. THE ALLEGED LEGAL ISSUES
RAISED BY THE PROPOSED
PROVIDENCE INQUIRY AND
PLEA
MANNING, Bradley E., PFC
U.S. Army, DATED: 21 February 2013
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221]

RELIEF SOUGHT

I . The Defense respectfully requests that this Court deny the Govemment?s requested relief.
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 Government
as the moving party. See RCM 905(c)(2).

FACTS

3. PFC Manning 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,
eight speci?cations of violations of 18 U.S.C. 793(e), ?ve speci?cations of violations of 18
U.S.C. 641, two specifications of violations of 18 U.S.C. 1030, and ?ve speci?cations of
violating a lawful general regulation, in violation of Article 104, I34, and 92, Uniform Code of
Military Justice (UCMJ).



4. The Defense does not intend to produce any witnesses or evidence for this motion.

APPELLATE
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0 0 34441

LEGAL AUTHORITY AND ARGUMENT

5. The Court should deny the Govemment?s requested relief of precluding the Defense from
offering PFC Manning?s statement as a document in support of his providence inquiry. The
Govemment?s objection is based upon a fundamental misunderstanding of the use of statements
during the providence inquiry. Statements made during the providence inquiry may only be
considered by the military judge in determining the providence of an accused?s guilty plea and in
sentencing in order to determine an appropriate sentence. Statements made during the
providence inquiry may not be used during the merits phase of the trial on contested offenses.

6. The case the Government primarily relies upon for its argument is US. v. Cahn, 31 M.J. 729
(A.F.C.M.R. 1990). The Government?s reliance on Cahn is misplaced. Far from supporting the
Govemment?s position, Cahn undercuts its entire argument.

7. In Cahn, the appellant was convicted of the theft of his roommate?s automated teller machine
(ATM) card despite his plea of not guilty. During the Care inquiry on related offenses of theft of
money by using the ATM card, the appellant explained to the judge how he came into lawful
possession of the ATM card. Id. at 729. The appellant told the militaryjudge that when he

asked for the ATM card his roommate had initially said Id. at 730. The appellant then
told the militaryjudge that despite the initial ?no? he was eventually successful in talking his
roommate into loaning him the ATM card.? Id.

8. The appellant elected not to testify during the contested portion of the trial. Id. As such, the
appellant did not offer his version of the events again where he claimed that he was eventually
successful in convincing his roommate into letting him borrow the ATM card. Instead, the
appellant relied upon the cross-examination of his roommate in order to attempt to establish that
he had authorization to possess the ATM card. Id.

9. During the findings argument, the military judge stated the he would not consider the
statements made by the appellant during the Care inquiry on the contested offense? Id.; see
generally US. v. Care, 40 CMR 247 (1969). Instead, the military judged stated that he would
rely solely on the evidence presented by the parties during the merits on the contested offense.
Id.

10. On appeal, the appellant defense counsel argued that the statements made during the
providence inquiry should have also been admissible during the merits phase on the contested
offenses. Id. The appellate defense counsel argued ?that it would be ?an absurd distinction? to
allow such statements to be used to support charges to which an accused pleads guilty, but not to
permit their consideration on other charges which are being contested.? Id. In response to the
appellant?s assertion that it would be ?an absurd distinction? the court in Cahn held ?on the
contrary, we find this distinction to be a critical one.? Id.

1 Although the facts provided by Airman Cahn were not relevant to the the? of money offenses that he was pleading
guilty to, they were circumstances surrounding the the? offenses in that they explained how he gained access to his
roommate?s money.

2 Interestingly, both the trial counsel and defense counsel had speci?cally agreed that the stipulation of fact used
during the Care inquiry was intended for consideration on the merits of the contested offense as well.

2

0 0 34442

11. The above quote, ?we ?nd this distinction to be a critical one? was just the first of several
quotes that the Government chose to cherry-pick from the Cahn opinion. In doing so, the
Government has presented a misleading account of the Cahn opinion in order to support its
request for this Court to limit the proffered statement by PFC Manning. To demonstrate the
liberties taken by the Government, the entire relevant portion of the Cahn opinion is provided
below:

Allowing Care inquiry statements to be considered in sentencing is a far cry
from approving the use of such statements on the merits of an offense to which
an accused has pled not guilty and, thus, has chosen to place on the government
the burden of producing evidence to prove his guilt. Indeed, in so arguing,
appellate defense counsel would have us establish a dangerous precedent?one
which would undoubtedly serve more often as a sword against an accused
rather than, as in this case, a shield in his favor. We ?nd no support for the
proposition that an accused?s right to remain silent on a contested offense may
be abridged by allowing consideration of statements required to be made in
support of a guilty plea.

Allowing such use would not only serve as a deterrent to guilty pleas where
related offenses were to be contested, but would inhibit an accused?s
willingness to speak freely in establishing a factual basis for pleas of guilty in
such situations. From the standpoint of information favorable to an accused,
this practice would tempt an accused to ?garnish? his Care testimony with
favorable statements, thereby placing such statements before the court without
being subject to cross-examination.

For the foregoing reasons, we conclude that the militaryjudge acted properly in
not considering appellant's Care inquiry statements in arriving at ?ndings on the
contested offense.

Id. at 730 731 (emphasis added; citations omitted). The court in Cahn was concerned about an
accused?s statements being used during the merits stage of the trial not about an accused?s
statements being used during the providence inquiry itself or on sentencing. Speci?cally, the
court in Cahn was concerned about 1) the chilling effect on an accused during the providence
inquiry if his statements could be used against him during the contested portion of the trial (use
as a sword) and 2) the incentive of an accused to pepper his providence inquiry statements with
favorable statements for use during the merits, thereby avoiding cross-examination (use as a
shield). Importantly, the court in Cahn did not say that the statements made by the appellant
could not be properly considered by the military judge during the providence inquiry itself or on
sentencing to determine an appropriate sentence.

12. In the instant case, the Defense is simply requesting the Court to consider the statement
during the providence inquiry and in determining an appropriate sentence. Thus, the concerns in
Cahn are not applicable to this case and the Govemment?s reliance upon Cahn is not persuasive.
As the Court is well aware, in a guilty plea the military judge is responsible for ensuring the

0 0 34443

providence of an accused?s plea. US. v. Care, 40 CMR 247 (1969). An accused?s plea must be
knowing, intelligent, and voluntary, and have a basis to survive appellate review. US. v.
Grisham, 66 M.J. 501, 504 (A. Ct. Crim. App. 2008) (citing Santobello v. New York, 404 U.S.
257, 262-63 (1971)); RCM 9l0(e). A militaryjudge ensures that an accused?s plea is knowing,
intelligent, and voluntary through a Care Inquiry. Id.

13. The Care inquiry consists of arraignment and the providence inquiry. During the
providence inquiry, the military judge must include an explanation of the offenses and ensure the
accused:

a) Understands that the accused waives certain rights: speci?cally the right
against self-incrimination; trial of facts by members; and the right of confrontation;
b) Understands the elements of the offense;
c) Agrees that the plea admits every element, act or omission, and relevant intent;
d) Understands that the accused may be convicted on plea alone without further
proof;
e) Is advised of the maximum sentence available based on the plea alone;
f) Has had the opportunity to consult with counsel;
g) Is entering the plea knowingly, intelligently, and voluntarily.

RCM see also Boykin V. Alabama, 395 U.S. 238 (1969). In order to establish that
there is a factual basis for the plea, the militaryjudge is required to question the accused, under
oath, about the offenses. RCMS 910(c)(5), 9l0(e). The militaryjudge must ascertain, through
the accused?s own words, why the accused believes he is guilty. Id.

14. In most guilty pleas, the military judge will have the assistance of a stipulation of fact by the
parties. However, in cases where there is no pretrial agreement, there is no stipulation of fact. In
such situations, the military judge must rely upon the accused to provide the factual basis for the
plea, but also the details of the circumstances surrounding the offense. Illustrative of such a
situation is US. v. Irwin, 42 M.J. 479 (C.A.A.F. 1995).

15. In Irwin, the appellant entered his guilty pleas without the bene?t of a pretrial agreement.

Id. at 480. During the ?providence inquiry, the appellant described in detail the how, when, why,
and where he committed each of the offenses.? Id. (emphasis added). The appe11ant?s
?recitation of the facts not only provided the factual basis required? under the Care inquiry, but
?it also included details of the circumstances surrounding the offenses.? Id. at fn 6 (noting that
?The appellant?s recollection of the events was so vivid at two places during the providence
inquiry that he spoke without interruption or prompting by the militaryjudge for three and six
pages, respectively, in the record of

16. After the providence inquiry, the government gave notice to the military judge and the
defense of its intent to play a recording of the providence inquiry to the panel members on
sentencing. Id. at 480 481. The trial counsel argued that the ?appellant?s statement was, in
effect, a judicial confession; that the court members should have the facts surrounding the
offenses in order to adj udge a proper sentence; and that playing the tape would be in accordance
with United States v. Holt, 27 MJ 57 (CMA 1988).? Id. at 481.

0 0 34444

17. Over the defense?s objection, the trial court permitted the government to play portions of the
providence inquiry for the members as proper aggravation evidence under RCM 1001(b)(4). Id.
On appeal, the appellant contended that admissibility of his providence inquiry statement was in
violation of the Holt opinion and an impermissible admission of his statements since the
members were ?given access to evidence of misconduct of which he was not found guilty.? Id.

18. The CMA rejected the appellant?s argument that it was error under Holt to consider
statements made by him during the providence inquiry on sentencing. Id. The CMA speci?cally
held ?[c]ontrary to appellant?s beliefs, Holt did not place limits on how much evidence is
admissible during sentencing; it only limits the kind of evidence.? Id. Thus, the Court held the
?question becomes whether that portion of the providence inquiry that was presented to the
members amounted to ?aggravating circumstances directly relating to the offenses of which
the accused? was found guilty. RCM Id. at 482. With this question in mind, the
Court held that the appellant?s responses during the providence inquiry ?did not ?range[] far
a?eld? but instead, were relevant as they directly described circumstances surrounding the
offenses without venturing into unrelated matters, and there was no stipulation of fact in this case
so there was no danger of cumulative effect.? Id. (citations omitted). As such, the statements
amounted to ajudicial admission under MRB 801(d)(2).

19. As in Irwin, PFC Manning should be allowed to provide the facts and circumstances
surrounding the commission of the charged offenses during his providence inquiry. When doing
so, PFC Manning is permitted to ?described in detail the how, when, why, and where he
committed each of the offenses.? Irwin, 42 M.J. at 480 (emphasis added). As long as a
statement describes the ?circumstances surrounding the offenses without venturing into unrelated
matters? the statement is properly before the Court.4 Id. at 482.

20. Given that there is no stipulation of fact, the statement provided by PFC Manning will help
the Court with an understanding of the facts and circumstances surrounding the offenses. It also
provides the Court with the factual basis to conduct a sufficient inquiry of PFC Manning. US. v.
Bailey, 20 M.J. 703 (A.C.M.R. 1985) (holding that a militaryjudge must conduct a sufficient
inquiry in order for a guilty plea to not be set aside on appeal). The facts provided by PFC
Manning will provide the Court with the factual basis to determine that PFC Manning?s plea is
indeed knowing, intelligent and voluntary. RCM Thus, the Court can certainly
consider PFC Manning?s statement in determining the providence of his pleas.

3 The Court also stated that admissibility of the statement for sentencing purposes must satisfy the Military Rules of
Evidence. Id. at 582 (citations omitted).

4 PFC Manning?s initial draft of his statement contained several pages describing in detail his struggles with not
being able to dress like a woman during the deployment. PFC Manning discussed how this impacted him during the
deployment and how it made it dif?cult for him to control his emotions. He also discussed how he dressed like a
woman while on mid-tour leave from Iraq. Speci?cally, he described how he dressed like a woman during his train
trip to and from Boston to see his boyfriend, Tyler Watkins. Although these details were important to PFC
Manning, because they helped describe the emotional struggles that he was enduring during the deployment, the
Defense advised him to remove these from his statement as we believed that they ventured into unrelated matters
more appropriately brought out during direct examination of witnesses. The remaining facts, however, we advised
him to retain given that they describe circumstances surrounding the offenses that he was pleading guilty to.





21. The Government argues that PFC Manning?s statement must ?contain the sort of
uncontested facts or information helpful to focus issues, such as those found in a stipulation.?
The Government?s continues its diatribe by stating the ?fonn and substance of the proffered
statement allow[s] the defense and the accused to circumvent the adversarial process outlined in
the Rules for Court?Martial? and that ?[w]here the Rules discuss the entry of evidence to the
record whether by stipulation, by testimony, or by statement they contemplate the
participation of both parties.? Government?s Motion at p. 5-6.

22. The Government cites no authority for its position. Undoubtedly this is because it has no
such authority. When an accused pleads guilty without the benefit of a pretrial agreement, there
will be no such stipulation of fact and obviously no ?participation of both parties? in any
statement provided to the Court during the providence inquiry. If the Government contests the
facts within PFC Manning?s statement in support of his plea to the lesser included offenses, it
may either attempt to prove up the greater offenses or offer proper rebuttal evidence during
sentencing. The Government, however, is not permitted to limit PFC Manning?s statement to a
bald assertion of the elements of the offenses. U. S. v. Frederick, 23 M.J. 561 (A.C.M.R. 1986)
(military judge?s inquiry requiring simple yes or no answers when asked whether he did that
which the speci?cations alleged was inadequate). Additionally, the Government?s concerns
ignore the practical reality that statements made during the providence inquiry are only admitted
for the purposes of the militaryjudge determining the providence of an accused?s plea and on
sentencing in determining an appropriate sentence. US. v. Resch, 65 M.J. 233 (C.A.A.F. 2007)
(CAAF concluded that it was error to use the providence inquiry statements in determining guilt
of the contested offense).

23. Assuming that PFC Manning?s pleas are providence and accepted by the Court, the
providence inquiry statement may also be considered by the Court in order to determine an
appropriate sentence. When deciding which portions of the providence inquiry statement to
consider during sentencing, the Court may clearly consider those statements that either amount to
?aggravating circumstances directly relating to or resulting from the offense of which the
accused has been found guilty? or are matters in extenuation or mitigation. RCMs 1001
and l00l(c)(l)(A) and (B).

24. The Government?s final argument regarding PFC Manning?s statement is also without merit.
The Government argues that PFC Manning?s statement may increase the probability of creating a
matter inconsistent with his plea. The Government frames its concern by stating:

to allow broad commentary on unrelated issues not subject to ready rebuttal
threatens issue confusion by mixing relevant and irrelevant information on
the record making it exponentially more dif?cult to track facts to the
elements at issue. The inclusion of extraneous commentary also raises the
possibility of inconsistencies between facts elicited during the inquiry and
those presented during the merits portion of the proceedings. It thereby
muddies the water and provides more material for the [C]ourt to monitor.
Moreover, the United States intends to move forward on the greater
offenses and, in so doing, will present evidence relating to the elements of
both the lesser and greater offense. As such, to admit this largely irrelevant





statement as sworn evidence would make an already complicated inquiry
untenable. In short, the inclusion of extraneous information in the
providence inquiry requires the Court and the parties to be hyper ?vigilant
to ensure any inconsistencies are identi?ed and addressed.

Government Motion at p. 6-7. The Govemment?s concern is based upon a misunderstanding of
what it means to have a matter inconsistent with factual or legal guilt. Under RCM 9l0(h)(2),
?If after ?ndings but before the sentence is announced the accused makes a statement to the
court-martial, in testimony or otherwise, or presents evidence which is inconsistent with a plea of
guilty on which a ?nding is based, the military judge shall inquire into the providence of the
plea.? The key is that the inconsistent matter must be raised by the accused, not the Government.
This requirement is also outlined in Article 45(a), UCMJ, an accused . . . after a plea of
guilty sets up a matter inconsistent with the plea . . . a plea of not guilty shall be entered.? When
an accused presents either a matter inconsistent with factual or legal guilt, the military judge is
required to explain the inconsistent matter to the accused and should not accept the plea unless
the accused admits facts which negate the factual or legal inconsistency. See discussion to RCM
910(h)(2); see also US. v. Phillippe, 63 M.J. 307 (C.A.A.F. 2006) (accused?s statement
regarding his attempt to return right after 9/11 raised a matter inconsistent with pleading guilty to
an almost three year AWOL).

25. Far from creating an ?untenable? situation, the statement by PFC Manning provides the
Court with the facts surrounding the offenses to which PFC Manning?s is pleading guilty. If the
Government goes forward on the greater offenses, and if they are unsuccessful in proving the
greater offenses, the Court will ?nd PFC Manning guilty in accordance with his pleas. In such a
situation, the Court need only be concerned with PFC Manning raising a matter that is
inconsistent with his factual or legal guilt to the lesser included offenses. Whatever facts the
Government would present on the greater offenses would be of no importance. If, however, the
Government is successful in proving the greater offenses, then there is no potential issue for a
matter that is inconsistent with factual or legal guilt. In this situation, the Court would enter a
?nding of guilt to the greater offenses, and not to the lesser included offenses pled to by PFC
Manning. In short, the Government spends seven pages discussing possible concerns and issues
with PFC Manning?s statement that are simply not valid concerns. As such, the Court should
deny the Govemment?s requested relief of altering the content of PFC Manning?s pretrial
statement or accepting PFC Manning?s statement in an open-ended providence inquiry question-
and-answer colloquy that meets with the Government?s arbitrary sense of what an accused?s
statement in support of his pleas should be.

26. Finally, the Government proposes an additional line of questioning ?in an abundance of
caution? to ensure PFC Manning understands the nature and effect of his plea of guilty.
Government Motion at p. 8. The Defense believes the current proposed providence inquiry

ensures that PFC Manning?s plea is knowing, intelligent, and voluntary. As such, the Court
should deny the Govemment?s request for an additional line of questioning.



CONCLUSION

27. For foregoing reasons, the Defense respectfully requests that this Court deny the
Government?s requested relief.

Respectfully submitted,



DAVID E. COOMBS
Civilian Defense Counsel

34448

INTHEUNITEDSTATESARMY
FIRSTJUDICIALCIRCUIT

UNITEDSTATES

)
^

^
MANNING,BradleyE,PFC
U.S.Anny, XXXXX (b)
(6)
Headquarters and Headquarters
Company, U.S.
Army Garrison, Joint Base Myor HondersonHall,
FortMyor,VA 22211

)
)
)
)
)
)
)

DEFENSE NOTICE OF
PLEAAND FORUM

DATED: 30 January 2013

In accordance with the Rules ofPractice befbre Army Courts-Martial,PFC Marming, by and
through his attomey hereby serves notice to the Govommont and Court of anticipated plea,
requested fomm, and expected motions.
Plea:
Tothe SpodftcationofChargeland to ChargeLNot Guilty.
ToSpodftcationlof ChargelL Not Guilty.
ToSpodftcation2of Charge 1LGuilty,except the words andftgures"15Febmary2010"
and"5Apri12010",subsfitutingtherefbrethewordsandftguros"14Fehmary2010"and"21
Fobmary 2010"; further oxcopting the words "infbrmation relating to the national defonse, fo
wit:"; further oxcopting tho words "with reason to boliovo such infbrmation could bo used to tho
injury oftho United States or to the advantage of any fbreign nation,wi11ftilly communicate,
do1ivor,transmiL or cause to bo communicated, delivered, orfransmitted,",substitutingtherefbre
tho words "did willfully communicate"; further excepting the words andftguros,"inviolation of
18U.S.Code Section 793(e),"; to the excepted words andftgures.Not Guilty; to the substituted
words andftgures.Guilty.
(Revised Spodftcation2ofChargoIL In that Private First Class BradleyE.Marming,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or ahout14
Febmary 2010and on or abouf21 Febmary 2010, having unauthorized possession ofavideo ftle
named"12JUL07C^ENGAGEMENT^ONE30CGAnyonoavi",wi11fti11ycommunicatethe
said infbrmation, toaperson not entitled to receive if, such conduct being prejudicial to good
order and discipline in tho armed forces and heing ofanature fo bring discredit upon the armed
forces.)
ToSpodftcation3of Charge ILGuilty,oxcopt the words andftgures"22 March 2010"
and"26March2010",substitutingtherefbrothowordsandftguros"17March2010"and"22
March 2010"; ftirther excepting the words "infbrmation relating to the nafional defense, to wit:";
APPELLATEEXHIBIT^^
PAGEREFERENCED:
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34449

ftirther excepting the words "with reason to believe such infbnnation could be used to fhe injury
ofthe United States or to the advantage of any fbreign nation,wi11fblly communicate, deliver,
transmiL or cause to be communicated, delivered, or transmitted,",substituting therefbre the
words "did willfnlly communicate"; further excepting tho words andftgures"in violation of18
U.S. Code Section 793(e),"; to tho oxcopted words andftgures,Not Guilty; to tho suhstitutod
words andftgures,Guilfy.
(Revised Spedftcation3of ChargelL In that Private First Class BradleyE.Marming,
U.S.Army,did, at or near Contingency Operating Station Hammer, Iraq, hotwoon on or about17
March 2010and on or about 22 March 2010, having unauthorized possession of moro than one
dassifted memorandum produced byaUnited States government intelligence agoncy,wi11fu11y
communicate fhe said infbrmation, toaperson not entitled to receive iL such conduct being
projudidal to good order and discipline in tho armed forces and being ofanature to bring
discredit upon the armed forces.)
ToSpodftcation4ofChargelL NotGuilty.
ToSpedftcation5ofCharge1LGui1ty,except the words and ftgures "31Decomhor
2009" and "9 Febmary 2010",substitutingtherefbre the words andftgures"5 January 2010" and
"3 Febmary 2010"; fiirther excepting fhe words "infbnnation relating to the national defense, to
wit:"; further excepting the words "with reason to believe such infbrmation could be used to tho
injury ofthe United States or to tho advantage of any fbreign nation,wil1ftilly communicate,
deliver, transmiL ^r cause tobe communicated, delivered, or transmiftod,",substifuting therefore
the words,"did willfully communicafo";fttrther excepting the words andftgures"in violation of
18U.S.Code Section 793(e),"; to tho excepted words andftgures.Not Guilty; to tho substituted
words andftgures,Guilty.
(Revised Spedftcation5of ChargelL In that Private First Class BradleyE.Marming,
U.S.Anny,did, at or near Contingency Operating Station Hammer, Iraq, between on or about5
January 2010and on or ahout3Fehmary 2010, having unauthorized possession of more than
twenty dassifted records from the Combined Infbrmation Data Network Exchangefraqdatabase,
willfully communicate the said infbrmation, toaperson not entitled fo receive iL such conduct
being prejudicial to good order and discipline in the armed forces and heing ofanature to bring
discredit upon the armed forces.)
ToSpodftcation6ofChargeIL Not Guilty.
ToSpodftcation7of Charge 1LGuilty,except the words andftgures"31Decombor
2009" and "9 Febmary 2010",substittitingthe words andftgures"5 January 2010" and "3
Febmary 2010"; fiirther excepting the words "infbrmation relating to the national defense, to
wit:"; further excepting tho words "with reason to believe such infbrmation could bo used to fhe
injury offhe United Statos orto the advantage ofany foreign nation, willfully communicato,
deliver, transmit, or cause to he communicated, delivered, or transmittod,",suhstituting thorofbro
the words "did willfully communicafo"; further excepting the words andftgures"in violation of
18U.S Code 793(o),"; to the excepted words andftgures.Not Guilty; to tho substituted words
andftgures.Guilty.

34450

(RevisedSpedftcation7ofChargeIL In that Private First Class BradleyE Manning,
U.S.Army,did, at or near Contingency Operating Station Hammer, Iraq, between on or about5
January 2010and on or about3Febmary 2010, having unauthorized possession of more than
twenty dassifted records from fhe Combined Infbrmation Data Network Exchange Afghanistan
database, willfully communicate the said information, toaperson not entitled to roceiveiL such
oondudhoingprejudidal to good order and discipline in the armed forces and being ofanature
to bring discredit upon the armed forces.)
ToSpedftcation8of ChargelL Not Guilty.
ToSpedftcation9ofChargeILGui1ty,except the words andftgures"between on or
about8March2010and on or about 27 May 2010",substituting therefore the words and ftgures
"on or about8March 2010"; further exceptin^the words "infbrmation relating to tho national
defense, towit:"; further excepting fhe words "with reason to believe such infbnnation could bo
used to the injury ofthe United States orto the advantage ofany fbreign nation, willfully
communicate, deliver, transmiL or cause to be communicated, dolivorod, or transmitted,",
substituting therefore tho words "did willfully communicate"; fiirther excepting the words and
ftgures "in violafion of18U.S.Code 793(o)"; to tho oxcoptod words andftgures,Not Guilty; to
the substituted words andftgures.Guilty.
(Revised Spodftcation9of Charge II: In that Private First Class BradleyE.Marming,
U.S.Anny,did, at or near Contingency Operating Station Hammer, Iraq, on or about8March
2010, having unauthorized possession of more than throe dassifted records fromaUnited States
Southem Command database,willftilly communicate the said infbrmation, toaperson not
entitled to receive iL such conduct heing prejudicial to good order and discipline in tho armed
forces and being ofanature to bring discredit upon tho armed forces.)
ToSpedftcationlOof Charge lLGui1ty,oxcopt the words andftguros"11Apri12010"
and "27 May 2010",suhstitutingtherefbrefhewordsandftguros"10April 2010" and "12 April
2010"; further excepting the words "information relating to the national defi^nse, to wit:"; further
excepting the words "with reason to hdiove such infbnnation could be used to the injury oftho
United States or to the advantage of any fbreign nation,wi11fti11y communicate, deliver, transmiL
or cause to he communicated, delivered, orfransmitted,",suhstitutingtherefbre the words "did
willftilly communicate"; ftirther excepting the words andftgures"in violation of18U.S.Code
Section 793(o)"; to tho excepted words andftgures.Not Guilty; to the suhstitutod words and
ftgures, Guilty.
(Revised SpedftcationlOof ChargelL In that Private First Class BradleyE. Marming,
U.S.Anny,did, at or near Contingency Operating Station Hammer, Iraq, between on or aboutIO
April 2010and on or about 12Apri1 2010, having unauthorized possession ofmore than ftve
dassifted records relating toamilitary operation inFarah Province, Afghanistan occurring on or
about4May 2009, willfully communicafo the said infbrmation, toaperson not entitled to
rocoivo it, such conduct being prejudicial to good order and discipline in tho armed forces and
heing ofanature to bring discredit upon tho armed forces.)

34451

ToSpedftcationllof ChargelL Not Guilty.
ToSpodftcationl2of ChargelL Not Guilty.
ToSpedftcation13of Charge ILGuilty,oxcopf the words andftgures"27 May 2010",
substituting therefbre the words andftgures"4 May 2010"; ftirther excepting the words
"knowingly exceeded authorized accoss",substituting therefbre the words "knowingly
accessed"; further excepting tho words "with reason fo believe that such infbrmation so obtained
could be used tothe irijury of the United States, or to the advantagoof any foreign nation, in
violation of18U.S.Code Sedion 1030(a)(l)"; to fhe excepted words andftgures.Not Guilty; to
fhe substituted words andftgures.Guilty.
(Revised Spedftcation13of ChargelL In thaf Private First Class Bradley E.Manning,
U.S.Army,did, at ornear Contingency Operating Station Hammer, Iraq, between on or about 28
March 2010and on or about4May 2010, having knowingly accessodaSocrot Intemet Protocol
Router Network computer, and bymeans of such conduct having obtained infbrmation that has
boon doforminod bythe United Statos govommont pursuant to an Executive Order or statute to
require protodion against unauthorized disclosure fbr reasons ofnational dofi^nso or foreign
relations, to wiL moro than seventyftve dassifted United States Department ofState cables,
willfully communicate, deliver, transmit, or caused to be communicated, delivered, or
fransmittod tho said information, toaperson not entitled fo receive iL such conduct being
prejudicial to good order and discipline in fhe armed forces and being ofanature to bring
discredit upon the armed forces.)
ToSpedftcation14of Charge ILGuilfy,except the words and ftgures"15 Febmary
2010" and"18Febmary2010",substitutingtherofbro tho words andftgures"14Febmary2010"
and"15Febmary 2010"; further excepting tho words "knowingly exceeded authorized access",
substituting therefbre the words "knowingly accessed"; further excepting the words "with reason
to boliovo thaf such infbrmation so obtained could bo used to the injury ofthe United States, or to
the advantage of any fbreign nation, in violafion of18U.S.Code Sedion 1030(a)(1)"; to tho
excepted words andftgures.Not Guilty; to the substituted words andftgures.Guilty.
(Revised Spodftcation14of ChargelL In that Private First Class BradleyE.Maiming,
U.S.Army,did, at or near Contingency Operating Station Hammer, fraq, botwoon on or about14
Febmary 2010and on or about 15Febmary 2010, having knowingly accessedaSecret Intemet
Protocol Router Network computer, and by means of such conduct having obtained infbrmation
that has been detennined by the United States govemment pursuant to an Executive Order or
statute to require protection against unauthorized disdosure fbr reasons ofnational defense or
fbreign relafions, to witiadassifted Department ofState cable titled "Reykjayik-13",wi11fti11y
communicate, deliver, transmiL or caused to be communicated, delivered, or transmitted the said
infbrmation, toaperson not entitled to rocoivoiL^^^hcondud being prejudicial togood order
and discipline in tho armed forces and being ofanature to bring discredit upon tho armed
forces.)
ToSpodftcation15of Charge 1LGuilty,oxcopt the words andftgures"botwoon on or
about 15Fehmary2010and on or about 15March2010",suhstituting thorofbro the words and

34452

ftgures "on or about8March 2010"; further oxceptingtho words "infbnnation relatingto the
national defonse, to wit:"; further excepting the words "with reason to believe such infbnnation
could be used to the injury ofthe United States or to the advantage ofany fbreign nation,
willfully communicate, deliver, transmit, or cause to bo communicated, delivered, or
transmittod,",substituting thorofbro the words "did willfully communicate"; further oxcopting the
words andftgures"in violation ofl8U.S.Code Section 793(o),"; to the excepted words and
ftgures, Not Guilty; to tho suhstifutod words andftgures.Guilty.
(Revised Spedftcafion15ofChargoIL In that Private First Class Bradley E.Manning,
U.S.Army,did, at or near Contingency Operating Station Hammer, fraq, on or about8March
2010, having unauthorized possession ofadassifted record produced byaUnited Statos Army
intelligonco organization, datedl8March 2008, willfully communicate the said infbnnation, toa
person not entitled to rocoivo it, such conduct being prejudicial to good order and discipline in
the armed forces and heing ofanature to bring discredit upon tho armed forces.)
ToSpodftcation16ofChargelL NotGuilty.
ToCharge IL Guilty.
ToSpodftcationlof Charge IIL NotGuilty.
ToSpedftcation2of Charge IIL NotGuilty.
ToSpodftcation3of Charge IIL NotGuilty.
ToSpedftcation4of Charge IIL NotGuilty.
ToSpedftcation5of Charge III: Guilty,except the words and ftgures"1 November
2009",substituting therefbre the words andftgures"8 January 2010"; to the excepted words and
ftguros. Not Guilty; to the substituted words andftgures.Guilty.
ToCharge IIL Guilty.
Forum:
Trial hy Military Judge Alone.
Maximum Punishment:
Themaximumpunishmentauthorizod in thiscase, basedsoldyonPFCManning'sguilty
plea is: reduction to E-1,total forfeiture ofall pay and allowances, conftnement fbr 20 years, and
adishonorable discharge.
Tho Dofi^nso arrives atthis maximum punishment doformination based upon tho ftndings
ofthe Court in Appellate Exhibit 421 and the Defense'sholiof the proposed pleas to spedftcation

34453

13 andl4shou1d each carryamaximum punishment of reduction to E-1,total forfeiture ofall
pay and allowances, conftnement fbr2years,andadishonorab1e discharge.
PFC Marming'sproposed pleas fospodftcations 13 and14of Charge II under dausesi
and2of Article 134 are lesser included offenses oftho offenses charged undor18U.S.C.Section
1030(a)(l)andArtidol34. The Defense assorts that the Artide 134 lessor indudodoffi^nses are
not indudod in or dosoly analogous loan offense listed in tho MCM. Tho Dofbnso also assorts
that tho condud and ^^^.^^^^.^ oftho lessor indudodoffi^nsos are not ossontiallytho same asa
violation ofUnited Statos Code Sodion 1030(a)(1)because PFC Manning is pleading toa
residuum ofolomonts fbr that offi^nso. Army Regulation (AR)380 5datod 29 Sopfombor 2000
(Infbrmation Security Program)ostablishosacusfom oftho service penalizing disclosures of
dassifted and sensitive infbrmation. Adisdosure in violation of AR380 5 wou1d he charged
under Article 92 ofthe UCMJ. Aviolation of Artide 92 would carryamaximum punishment of
rodudion to E-1,total forfeiture of all pay and allowances, conftnomontfbr2yoars, anda
dishonorable discharge. Thus, the maximum punishment fbr each ofthe lessor included offenses
of spodftcafion 13 and14proposodhy PFC Manning should be reduction to E-1,total fbrfbifuro
of all pay and allowances, conftnement fbr2years,andadishonorab1o discharge.
Expected Motions:
Motion to Dismiss: Unreasonable Multiplication ofChargos fbr Findings and
Sontondng(aftorannouncomontofFindings).
Respectfully submitted,

^ V I D EDWARDCOOMBS
CivilianDefenseCounsel

34454

UNCLASSIFIED
Unmarked redactions were present when the Army received 2this
document.
9 January
2013

MEMORANDUM THRU C i v i l i a n Defense Counsel, 11 South A n g e l l Street
#317, Providence, RI 02906
M i l i t a r y Defense Counsel, U.S. Army T r i a l Defense Service
(USATDS), Fort B e l v o i r , VA 22060
FOR M i l i t a r y Judge, U.S. Army F i r s t J u d i c i a l C i r c u i t , Fort
Meade, MD 20755
T r i a l Counsel, J o i n t Force Headquarters - N a t i o n a l C a p i t a l
R e g i o n / M i l i t a r y D i s t r i c t of Washington (JFHQ-NCR/MDW), 103 3rd
Avenue SW, Fort McNair, DC 20319-5058
SUBJECT: Statement i n Support o f Providence I n q u i r y — U.S. v.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
1. (U) The f o l l o w i n g f a c t s are provided i n support o f the
providence i n q u i r y f o r my c o u r t - m a r t i a l . United States v. PFC
Bradley E. Manning.
2.

(U) Personal Facts.

a. (U) I am a t w e n t y - f i v e (25) year-old P r i v a t e F i r s t Class
i n the United States Army, c u r r e n t l y assigned t o Headquarters
and Headquarters Company (HHC), U.S. Army Garrison (USAG), J o i n t
Base Myer-Henderson H a l l , Fort Myer, V i r g i n i a , P r i o r t o t h i s
assignment, I was assigned t o HHC,.2nd Brigade Combat Team, 10th
Mountain D i v i s i o n , Fort Drum, New York. My Primary M i l i t a r y
Occupational S p e c i a l t y (PMOS) i s 35F, " I n t e l l i g e n c e Analyst."
b. (U) I entered A c t i v e Duty s t a t u s on 2 October 2007. I
e n l i s t e d w i t h the hope o f o b t a i n i n g both r e a l - w o r l d experience
and earning b e n e f i t s under the Gl B i l l f o r c o l l e g e
opportunities.
3.

(U) Facts Regarding My p o s i t i o n as an I n t e l l i g e n c e Analyst.

a. (U) I n order t o e n l i s t i n the Array, I took the standard
Armed Services A p t i t u d e B a t t e r y (ASVAB). My score on t h i s
b a t t e r y was high enough f o r me t o q u a l i f y f o r any e n l i s t e d MOS
p o s i t i o n . My r e c r u i t e r informed me t h a t I should s e l e c t an MOS
t h a t complimented my i n t e r e s t s outside the m i l i t a r y . I n
response, I t o l d him I was i n t e r e s t e d i n g e o p o l i t i c a l matters
and i n f o r m a t i o n technology. He suggested I consider becoming an
intelligence analyst.

UNCLASSIFIED

APPELLATE EXHIBITj^f^
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PAGE OF PAGES

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SUBJECT: Statement i n Support o f Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

^.S. v,

b. (U) A f t e r researching the I n t e l l i g e n c e Analyst p o s i t i o n , I
agreed t h a t t h i s would be a good f i t f o r me. I n p a r t i c u l a r , I
enjoyed t h e f a c t t h a t an analyst would use i n f o r m a t i o n derived
from a v a r i e t y o f sources t o create work products t h a t informed
the command on i t s a v a i l a b l e choices f o r determining the best
courses o f a c t i o n (COAs). Although the MOS r e q u i r e d a working
knowledge of computers, i t p r i m a r i l y required me t o consider how
raw i n f o r m a t i o n can be combined w i t h other a v a i l a b l e
i n t e l l i g e n c e sources i n order t o create products t h a t assisted
the command i n i t s s i t u a t i o n a l awareness (SA). I assessed t h a t
my n a t u r a l i n t e r e s t i n g e o p o l i t i c a l a f f a i r s and my computer
s k i l l s would make me an e x c e l l e n t I n t e l l i g e n c e Analyst.
c. (U) A f t e r e n l i s t i n g , I reported t o the Fort Meade M i l i t a r y
Entrance Processing S t a t i o n (MEPS) on 01 October 2007. I then
t r a v e l e d t o , and reported a t Fort I^eonard Wood on 02 October
2007 t o begin Basic Combat T r a i n i n g (BCT).
d. (U) Once a t Fort Leonard Wood, I q u i c k l y r e a l i s e d t h a t I
was n e i t h e r p h y s i c a l l y nor mentally prepared f o r the
requirements o f BCT. My BCT experience l a s t e d s i x (6) months
i n s t e a d o f the normal t e n (10) weeks. Due t o medical issues, I
was placed i n a h o l d s t a t u s . A p h y s i c a l examination i n d i c a t e d I
sustained i n j u r i e s t o my r i g h t shoulder and l e f t f o o t . Due t o
these i n j u r i e s I was unable t o continue BCT.
e. (U) During medical hold, I was informed t h a t I may Ir^e outprocessed from the Army. However, I r e s i s t e d ^eing "chaptered"
because I f e l t I could overcome my medical issues and continue
^^l^V^.

f . On 20 January ^00^, I returned t o BCT. This time I was
b e t t e r prepared, and I completed t r a i n i n g on 2 A p r i l 200^. I
then r e p o r t e d f o r the MOS-specific Advanced I n d i v i d u a l T r a i n i n g
(AIT) on 7 A p r i l 2008.
g. (U) AIT was an enjoyable experience f o r me. Unlike BCT,
where I f e l t d i f f e r e n t than the other Soldiers, I f i t i n and d i d
w e l l . I p r e f e r r e d t h e mental challenges of reviewing a large
amount o f i n f o r m a t i o n from various sources and t r y i n g t o create
u s e f u l , or " a c t i o n a b l e , " products. I e s p e c i a l l y enjoyed the
p r a c t i c e of a n a l y s i s through the use of computer a p p l i c a t i o n s
and methods I was f a m i l i a r w i t h .
2
UNCLASSIFIED

34456

UNCLASSIFIED
SUBJECT: Statement i n Support of Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

U.S.

v.

h. (U) I graduated from AIT on 16 August 2008 and reported t o
my f i r s t duty s t a t i o n . Fort Drum, New York on 28 August 2008.
As an a n a l y s t . S i g n i f i c a n t A c t i v i t i e s (SIGACTs) were a frequent
source of i n f o r m a t i o n f o r me t o use i n c r e a t i n g work products.
I s t a r t e d working e x t e n s i v e l y w i t h SIGACTs e a r l y a f t e r my
a r r i v a l at Fort Drum. My computer background allowed me t o u s e
the t o o l s organic t o the D i s t r i b u t e d Common Ground System—Army
(DCGS-A) computers and create polished work products f o r the 2nd
Brigade Comlroat Team (2BCT) chain of command.
i . (U) The non-commissioned-officer-in-charge
(NCOIC) of the
S2 s e c t i o n , Master Sergeant (MSG) David P. Adkins recognised my
s k i l l s and p o t e n t i a l , and tasked me t o work on a t o o l abandoned
by a p r e v i o u s l y assigned a n a l y s t , the " I n c i d e n t Tracker."
The
I n c i d e n t Tracker was viewed as a backup t o the Combined
I n f o r m a t i o n Data Network Exchange (CIONE) and a u n i t h i s t o r i c a l
reference t o o l .
^. (U) I n the months preceding my upcoming deployment, I
worked on c r e a t i n g a new version of the i n c i d e n t t r a c k e r , and
used SIGACTs t o populate i t .
The SIGACTs I used were from
Afghanistan, because at the time our u n i t was scheduled t o
deploy t o the I^ogar and Wardak provinces Afghanistan. Later,
our u n i t was reassigned t o deploy t o eastern Baghdad, I r a q . At
t h a t p o i n t , I removed the Afghanistan SIGACTs and switched t o
I r a q SIGACTs.
k. (U) As an a n a l y s t , I view the SIGACTs as h i s t o r i c a l data.
I b e l i e v e t h i s view i s shared by other a l l - s o u r c e analysts as
w e l l . SIGACTs give a f i r s t - l o o k impression of a s p e c i f i c or
i s o l a t e d ^vent. This event can be an Improvised Explosive
Devise (IED) a t t a c k , a Small Arms F i r e (SAF) engagement w i t h a
h o s t i l e f o r c e , or any other event a s p e c i f i c u n i t documented and
reported i n r e a l - t i m e . I n my perspective, the i n f o r m a t i o n
contained w i t h i n a s i n g l e SIGACT, or group of SIGACTs i s not
very s e n s i t i v e . The events encapsulated w i t h i n most SIGACTs
i n v o l v e e i t h e r enemy engagements or c a s u a l t i e s . Most of t h i s
i n f o r m a t i o n i s p u b l i c l y reported by the Public A f f a i r s O f f i c e
(PAO), embedded media pools, or host-nation (HN) media.

3
UNCLASSIFIED

34457

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

U.S. v.

1. (U) As I s t a r t e d working w i t h SIGACTs, I f e l t they were
s i m i l a r t o a d a i l y j o u r n a l or log t h a t a person may keep. They
capture what happens on a p a r t i c u l a r day and time. They are
created immediately a f t e r the event and are p o t e n t i a l l y updated
over a p e r i o d o f hours u n t i l a f i n a l v e r s i o n i s published on
CIDNE.

^
^

^
^
^
^

m. (U) Each u n i t has i t s own standard operating procedure
(SOP) f o r r e p o r t i n g and recording SIGACTs. The SOP may d i f f e r
between r e p o r t i n g i n a p a r t i c u l a r deployment, and r e p o r t i n g i n
g a r r i s o n . I n g a r r i s o n , a SIGACT normally i n v o l v e s personnel
issues, such as a D r i v i n g Under-the-Influence (DUI) i n c i d e n t , or
an automobile accident i n v o l v i n g the death or serious i n j u r y o f
a S o l d i e r . The r e p o r t s t a r t s a t the company l e v e l , and goes up
to the b a t t a l i o n , brigade, and even up t o the d i v i s i o n l e v e l .
In a deployed environment, a u n i t may observe or p a r t i c i p a t e i n
an event and the platoon leader or platoon sergeant may report
the event as a SIGACT t o the Company Headquarters through the
r a d i o transmission operator (RTO). The commander or RTO w i l l
then forward the r e p o r t t o the B a t t a l i o n B a t t l e c a p t a i n or B a t t l e
Non-commissioned o f f i c e r (NCO). Once the B a t t a l i o n
Battlecaptari^n or B a t t l e NCO receives the r e p o r t , they w i l l
either:
(1) N o t i f y t h e B a t t a l i o n Operations O f f i c e r (S3).
(^) Conduct an a c t i o n , such as launching the Quick
Reaction Force (QRF).
(^) t^^^o^d Lh^ ^ v ^ i ^ t
^^p^^L ^ui^^h^^ ^^po^t^ It^ u^ t^h^
chain of command t o the Brigade.
The recording o f each event i s done by r a d i o or over the Secret
I n t e r n e t Protocol Router Network (SIPl^Net), normally by an
assigned S o l d i e r , u s u a l l y j u n i o r e n l i s t e d (E-4 and below).
n. (U) Once a SIGACT i s reported, the SIGACT i s f u r t h e r sent
up t h e chain o f command. At each l e v e l , a d d i t i o n a l i n f o r m a t i o n
can e i t h e r be added o r corrected as needed. Normally, w i t h i n 2^
to ^8 hours, t h e updating and r e p o r t i n g o f a p a r t i c u l a r SIGACT
i s complete. Eventually, a l l reports and SIGACTs go through the
chain o f command from Brigade t o D i v i s i o n , and D i v i s i o n t o
Corps. At Corps-level, the SIGACT i s f i n a l i z e d and published.
^

UNCLASSIFIED

^
^
i
^
^
^
^

34458

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

U.S. v.

1
^
^

o. (U) The CIDNE system contains a database t h a t i s used by
thousands of Department of Defense (DoD) personnel, i n c l u d i n g
S o l d i e r s , c i v i l i a n s , and c o n t r a c t o r support.
I t was the U.S.
Central Command (CENTCOM) r e p o r t i n g t o o l f o r o p e r a t i o n a l
r e p o r t i n g i n I r a q and Afghanistan.
Two separate but s i m i l a r
databases were maintained f o r each t h e a t e r , "CIDNE-I" f o r I r a q
and "CIDNE-A" f o r Afghanistan.

'
^
^

p. (U) Each datal^ase encompasses over a hundred types o f
reports and other h i s t o r i c a l i n f o r m a t i o n f o r access. They
contain m i l l i o n s o f v e t t e d and f i n a l i s e d records i n c l u d i n g
o p e r a t i o n a l and i n t e l l i g e n c e r e p o r t i n g . CIDNE was created t o
c o l l e c t and analyze battlespace data t o provide d a i l y operation
and i n t e l l i g e n c e community (IC) r e p o r t i n g r e l e v a n t t o a
cor^ander^s d a i l y decision mak:1ng process.
q. (U) The CIDNE-I and CIDNE-A databases contain r e p o r t i n g
and analysis f i e l d s from m u l t i p l e d i s c i p l i n e s i n c l u d i n g :
(1) Human I n t e l l i g e n c e (HUM^INT) r e p o r t s .
(2) Psychological

Operations (PSYOP) r e p o r t s .

(3) Engagement r e p o r t s .
(^) Counter-Improvised Explosive Device (CIED) r e p o r t s .
(5) SIGACT r e p o r t s .
(^) Targeting

reports.

(7) S o c i a l - C u l t u r a l r e p o r t s .
(8) C i v i l A f f a i r s r e p o r t s .
(^) Human T e r r a i n r e p o r t i n g .
I

r. (U) As an i n t e l l i g e n c e analyst, I had u n l i m i t e d access t o
the CIDNE-I and CIDNE-A databases and the i n f o r m a t i o n contained
w i t h i n them. Although each t a b l e w i t h i n the databases i s
important, I p r i m a r i l y d e a l t w i t h HUMINT r e p o r t s , SIGACT
r e p o r t s , and CIED r e p o r t s because these reports were used t o
create the work product I was required t o p u b l i s h as an analyst.
I
5
UNCLASSIFIED

^
^
^
^
^
i
I
^

34459

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y — U.S. v.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

s. (U) When working on an assignment, I looked anywhere and
everywhere f o r i n f o r m a t i o n . As an a l l - s o u r c e analyst, t h i s was
something t h a t was expected. The DCGS-A systems had databases
b u i l t i n , and I u t i l i z e d them on a d a i l y basis. This includes
the search t o o l s a v a i l a b l e on DCGS-A systems on SIPRNet such as
Query-Tree, and the DoD and I n t e l i n k search engines.
t . (U) P r i m a r i l y , I u t i l i z e d the CIDNE database, using t h e
h i s t o r i c a l and HUMINT r e p o r t i n g t o conduct my analysis and
provide ioackup f o r my work product. I d i d s t a t i s t i c a l analysis
on h i s t o r i c a l data, i n c l u d i n g SIGACTs, t o loack up analyses t h a t
were based on HUMINT r e p o r t i n g and produce charts, graphs, and
taL^les. I also created maps and charts t o conduct p r e d i c t i v e
analysis based on s t a t i s t i c a l trends. The SIGACT r e p o r t i n g
provided a reference p o i n t f o r what occurred, and provided
myself and other analysts w i t h the inforrmation t o conclude a
possible outcome.
u. (U) Although SIGACT r e p o r t i n g i s s e n s i t i v e a t the time o f
t h e i r c r e a t i o n , t h e i r s e n s i t i v i t y normally d i s s i p a t e s w i t h i n ^8
t o 72 hours as the i n f o r m a t i o n i s e i t h e r p u b l i c l y released, or
the u n i t involv^ed i s no longer i n the area and not i n danger.
I t i s my understanding t h a t the SIGACT reports remain c l a s s i f i e d
only because they are maintained w i t h i n CIDNE, because i t i s
only accessible on SIPRNet. Everything on CIDNE-I and CIDNE-A,
t o include SIGACT r e p o r t i n g was t r e a t e d as c l a s s i f i e d
information.

6
UNCLASSIFIED

34460

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y — U.S. v.
Private F i r s t Class (PFC) Bradley E. Manning (U)
^. (U) Facts Regarding Storage o f SIGACT Reports.
a. (U) As p a r t o f my t r a i n i n g at Fort Drum, I was i n s t r u c t e d
t o ensure t h a t I create back-ups of my work product.
The need
t o create back-ups was p a r t i c u l a r l y acute given t h e r e l a t i v e
i n s t a b i l i t y o f and u n r e l i a b i l i t y o f the computer systems we used
i n the f i e l d and during deployment. These computer systems
included both organic and theater-provided equipment (TPE) DCGSA machines. The organic DCGS-A machines we brought w i t h us i n t o
the f i e l d and on deployment were D e l l M-^0 laptops, and the TPE
DCGS-A machines were Alienware brand laptops.
b. (U) The M-^0 DCGS-A laptops were the p r e f e r r e d machine t o
use, as they were s l i g h t l y f a s t e r , and had fewer problems w i t h
dust and temperature than the TPE Alienware laptops.
c. (U) I used several DCGS-A machines during the deployment
due t o various t e c h n i c a l problems w i t h the laptops. With these
issues, several analysts l o s t i n f o r m a t i o n , but I never l o s t
i n f o r m a t i o n due t o the m u l t i p l e )::^ack-ups I created.
d. (U)I attempted t o back-up as much r e l e v a n t i n f o r m a t i o n as
p o s s i b l e . I would save the i n f o r m a t i o n so t h a t I , o r another
analyst could q u i c k l y access i t when a machine crashed, SIPRNet
c o n n e c t i v i t y was down, o r I f o r g o t where data was stored. When
backing-up i n f o r m a t i o n I would do one o r a l l o f the f o l l o w i n g
t h i n g s , ):^ased on my t r a i n i n g :
(1) (U) Physical Back-up. I t r i e d t o keep p h y s i c a l backup
copies o f i n f o r m a t i o n on paper, ^o i n f o r m a t i o n oould I:^e gr^L^L^d
q u i c k l y . Also, i t was easier t o l:^rief from hard-copies research
and HUMINT r e p o r t s .
(2) (U) Local Drive Back-up. I t r i e d t o s o r t out
i n f o r m a t i o n I deemed relevant and keep complete copies o f the
i n f o r m a t i o n on each o f the computers I used i n the Temporary
S e n s i t i v e Compartmented Information F a c i l i t y (T-SCIF), i n c l u d i n g
my primary and secondary DCGS-A machines. This was stored under
my u s e r - p r o f i l e on the "desktop."
(3) (U) Shared Drive Backup. Each analyst had access t o a
^^T-Drive" shared across the SIPRNet. I t allowed others t o access
i n f o r m a t i o n t h a t was stored on i t . S6 operated t h e "T-Drive."
7
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SUBJECT: Statement i n Support o f Providence I n q u i r y — U.S,
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
(^) (U) Compact Disc Re-^Writable (CD-RW) Back-up. For
l a r g e r datasets, I saved the i n f o r m a t i o n onto a r e - w r i t a b l e
d i s c , la)^eled t h e discs and stored them i n the conference room
of the T-SCIF.
e. (U) This redundancy permitted us the a b i l i t y t o not worry
about i n f o r m a t i o n l o s s . I f a system crashed, I could e a s i l y
p u l l the i n f o r m a t i o n from my secondary computer, the "T-Drive,"
or one o f t h e CD-RWs. I f another analyst wanted access t o my
data, but I was unavailable, she could f i n d my put^lished
products d i r e c t o r y on t h e "T-Drive" or on the CD-RWs. I sorted
a l l o f my products and research by date, time, and group, and
updated t h e i n f o r m a t i o n on each o f the storage methods t o ensure
t h a t the l a t e s t i n f o r m a t i o n was a v a i l a b l e t o them.
f. (U) During the deployment, I had several o f t h e DCGS-A
machines crash on me. Whenever the computer crashed, I usually
l o s t i n f o r m a t i o n , but the redundancy method ensured my a b i l i t y
to q u i c k l y r e s t o r e o l d loackup data, and add my c u r r e n t
i n f o r m a t i o n t o the machine when i t was repaired o r replaced.
g. (U) I stored the backup CD-RWs o f l a r g e r datasets i n the
conference room o f the T-SCTF or next t o my w o r k s t a t i o n . I
marked t h e CD-RWs ^ased on the c l a s s i f i c a t i o n l e v e l and i t s
content.
U n c l a s s i f i e d CD-RWs were only labeled w i t h the content
type, and not marked w i t h c l a s s i f i c a t i o n markings.
h. (U) Early on i n the deployment, I only saved and stored
the SIGACTs t h a t were w i t h i n or near our Operational Environment
(OE).
Later, I thought i t would be easier ^ust t o save a l l the
SIGACTs onto a CD-RW. The process would not take very long t o
complete, and so I downloaded the SIGACTs from CIDNE-I onto a
CD-RW. A f t e r f i n i s h i n g w i t h CIDNE-I, I d i d the same w i t h CIDNEA. By downloading the CIDNE-I and CIDNE-A SIGACTs, I was able
to r e t r i e v e the i n f o r m a t i o n whenever I needed i t , and not r e l y
upon the u n r e l i a b l e and slow SIPRNet c o n n e c t i v i t y needed t o
" p u l l " them. Instead, I could ^ust f i n d the CD-RW, and open the
preloaded spreadsheet.
i . This process began i n late-December 2009, and continued
through early-January 2010. I could q u i c k l y export one month o f
the SIGACT data a t a time, and download i n the background as I
d i d other tasks.

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SUBJECT: Statement i n Support of Providence I n q u i r y — U.S^
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
^. (U) The process took approximately a week f o r each t a b l e .
A f t e r downloading t h e SIGACT t a b l e s , I p e r i o d i c a l l y updated them
by p u l l i n g only the most recent SIGACTs, and simply copying them
and " p a s t i n g " them i n t o the database saved on CD-RW.
k. (U) I never h i d the f a c t I had downloaded copies o f both
the SIGACT t a b l e s from CIDNE-I and CIDNE-A. They were stored on
a p p r o p r i a t e l y l a b e l e d and marked CD-RWs stored i n the open. I
views t h e saved copies o f the CIDNE-I and CIDNE-A SIGACT tables
as being f o r both my use, and the use of anyone w i t h i n the S2
s e c t i o n d u r i n g SIPRNet c o n n e c t i v i t y issues.
1. (U) I n a d d i t i o n t o the SIGACT t a b l e , I had a l a r g e
r e p o s i t o r y o f HUMINT r e p o r t s and CIED reports downloaded from
CIDNE-I. These contained reports t h a t were r e l e v a n t t o the area
i n and around our OE, i n eastern Baghdad and the Diyala province
of I r a q .
m. (U) I n order t o compress the data t o f i t onto a CD-RW, I
used a compression a l g o r i t h m c a l l e d "B^ip2." The program used
t o compress the data i s c a l l e d "WinRAR." WinRAR i s an
a p p l i c a t i o n t h a t i s f r e e and can e a s i l y be downloaded from the
I n t e r n e t v i a t h e Non-secure I n t e r n e t Relay P r o t o c o l Network
(NlPRNet). I downloaded WinRAR on NlPRNet and t r a n s f e r r e d i t t o
the DCGS-A machine user p r o f i l e "desktop" using a CD-RW.
n. (U) I d i d not t r y t o hide the f a c t t h a t I was downloading
WinRAR onto my SIPRNet OCGS-A computer. With the assistance of
the B^ip2 compression a l g o r i t h m using the WinRAR program, I was
able t o f i t a l l the SIGACTs onto a s i n g l e CD-RW, and t h ^
r e l e v a n t HUMINT and CIED r e p o r t s onto a separate CD-RW.

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SUBJECT: Statement i n Support o f Providence I n q u i r y - U.S. v.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
5. (U) Facts regarding my knowledge o f the WikiLeaks
Organi:^ation (WLO)
a. (U) I f i r s t became vaguely aware of WLO during my AIT a t
Fort Huachuca, A^. Though, I d i d not f u l l y pay a t t e n t i o n u n t i l
WLO released purported Short Messaging System (SMS) messages
from 11 Septemioer 2001 on 25 November 2009. At t h a t time,
references t o the release and the WLO website showed up i n my
d a i l y Google News open source search f o r i n f o r m a t i o n r e l a t e d t o
U.S. f o r e i g n p o l i c y .
b. (U) The s t o r i e s were about how WLO published approximately
500,000 messages. I then reviewed the messages myself, and
r e a l i z e d t h a t the posted messages were very l i k e l y r e a l given
the sheer volume and d e t a i l o f the content.
c. (U) A f t e r t h i s , I began conducting research on WLO. I
conducted searches on ^ o t h NlPRNet and SIPRNet on WLO beginning
i n l a t e November 2009 and e a r l y December 2009. At t h i s time I
also began t o r o u t i n e l y monitor the WLO website.
d. (U) I n response t o one o f my searches i n December 2009, I
found the U.S. Army C o u n t e r - i n t e l l i g e n c e Center (USACIC) r e p o r t
on WLO. A f t e r reviewing the r e p o r t , I b e l i e v e d t h a t t h i s report
was the one t h a t my AIT i n s t r u c t o r referenced i n e a r l y 2008. I
may or may not have saved the r e p o r t on my DCGS-A w o r k s t a t i o n .
I know I reviewed the document on other occasions throughout
e a r l y 2010, and saved i t on both my primary and secondary
laptops.
e. (U) A f t ^ r r ^ v i ^ w i n g t h ^ r e p o r t , I continued doing my
research on WLO. However, based upon my open-source c o l l e c t i o n ,
I discovered i n f o r m a t i o n t h a t c o n t r a d i c t e d the 2008 USACIC
r e p o r t , i n c l u d i n g i n f o r m a t i o n i n d i c a t i n g t h a t , s i m i l a r t o other
press agencies, WLO seemed t o he dedicated t o exposing i l l e g a l
a c t i v i t i e s and c o r r u p t i o n . WLO received numerous awards and
r e c o g n i t i o n f o r i t s r e p o r t i n g a c t i v i t i e s . Also, i n reviewing
the WLO wel^site, I found i n f o r m a t i o n regarding U.S. m i l i t a r y
SOPs f o r Camp Delta a t Guantanamo Bay, Cuba, and i n f o r m a t i o n on
then-outdated Rules o f Engagement (ROE) i n I r a q f o r cross-border
p u r s u i t s o f former members o f Saddam Hussein a l - T i k r i t i ^ s
government.

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SUBJECT: Statement i n Support of Providence I n q u i r y - U.S.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

v.

f. (U) A f t e r seeing the i n f o r m a t i o n a v a i l a b l e on the WLO
website, I continued f o l l o w i n g i t and c o l l e c t i n g open-source
i n f o r m a t i o n from i t . During t h i s time p e r i o d , I f o l l o w e d
several o r g a n i z a t i o n s and groups, i n c l u d i n g wire press agencies
such as the Associated Press and Reuters and p r i v a t e
i n t e l l i g e n c e agencies i n c l u d i n g S t r a t e g i c Forecasting
(STRATFOR). This p r a c t i c e was something I was t r a i n e d t o do
during AIT, and was something t h a t good analysts are expected t o
do.
g. (U) During the searches of WLO I found several pieces of
i n f o r m a t i o n t h a t I found u s e f u l i n my work as an a n a l y s t .
S p e c i f i c a l l y , I r e c a l l WLO p u b l i s h i n g documents r e l a t i n g t o
weapons t r a f f i c k i n g between two nations t h a t a f f e c t e d my OE.
I
i n t e g r a t e d t h i s i n f o r m a t i o n i n t o one or more of my work
products.
h. (U) I n a d d i t i o n t o v i s i t i n g the WLO website, I began
f o l l o w i n g WLO using an I n s t a n t Relay Chat (IRC) c l i e n t c a l l e d
"^-Chat" sometime i n e a r l y January 2010.
IRC i s a p r o t o c o l f o r
r e a l - t i m e i n t e r n e t conrmiunications by messaging or conferencing,
c o l l o q u i a l l y r e f e r r e d t o as "chat rooms" or " c h a t s . T h e IRC
chat rooms are designed f o r group communication i n discussion
forums. Each IRC chat room i s c a l l e d a "channel." S i m i l a r to a
t e l e v i s i o n , you can " t u n e - i n " t o or " f o l l o w " a channel, so long
as i t i s open and does not r e q u i r e an i n v i t e . Once c o i n i n g a
s p e c i f i c IRC conversation, other users i n the conversation can
see you have "coined" the room. On the I n t e r n e t , there are
m i l l i o n s of d i f f e r e n t IRC channels across several services.
Channel t o p i c s span a r a n g ^ o f t o p i c s , c o v e r i n g a l l k i n d ^ o f
i n t e r e s t s and hoLI:^ies.

i. (U) The primary reason f o r f o l l o w i n g WLO on IRC was
c u r i o s i t y , p a r t i c u l a r l y i n regards t o how and why they obtained
the SMS messages referenced a^ove. I r e l i e v e d c o l l e c t i n g
i n f o r m a t i o n on the WLO would a s s i s t me i n t h i s goal.
^. (U) I n i t i a l l y , I simply observed the IRC conversations. I
wanted t o know how the o r g a n i z a t i o n was s t r u c t u r e d , and how they
obtained t h e i r data. The conversations I viewed were u s u a l l y
t e c h n i c a l i n nature, but sometimes switched t o a l i v e l y debate
on issues a p a r t i c u l a r i n d i v i d u a l f e l t s t r o n g l y about.

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SUBJECT: Statement i n Support of Providence I n q u i r y ^
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

U.S,

k. (U) Over a p e r i o d of time, I became more i n v o l v e d i n these
discussions, e s p e c i a l l y when the conversation turned t o
g e o p o l i t i c a l events and i n f o r m a t i o n t o p i c s , such as networking
and e n c r y p t i o n methods. Based on these observations I would
describe the WLO conversation as almost academic i n nature.
1. (U) I n a d d i t i o n t o the WLO conversations, I p a r t i c i p a t e d
i n numerous other IRC channels across at l e a s t three d i f f e r e n t
networks.
The other IRC channels I p a r t i c i p a t e d i n normally
d e a l t w i t h t e c h n i c a l t o p i c s i n c l u d i n g the Linux and Berkeley
S e c u r i t y D i s t r i b u t i o n (BSD) Operating Systems (OS), networking,
e n c r y p t i o n a l g o r i t h m s and techniques, a n d o t h e r m o r e p o l i t i c a l
t o p i c s such as p o l i t i c s and queer r i g h t s .
m. (U) I normally engaged i n m u l t i p l e IRC conversations
simultaneously, mostly p u b l i c l y t^ut o f t e n p r i v a t e l y . The ^-Chat
c l i e n t enabled me t o manage these m u l t i p l e conversations across
d i f f e r e n t channels and servers. The screen f o r ^-Chat was o f t e n
busy, but experience enabled me t o see when something was
i n t e r e s t i n g . I would then s e l e c t the conversation and e i t h e r
observe or p a r t i c i p a t e .
n. (U) I r e a l l y enjoyed the IRC conversations p e r t a i n i n g t o
However, at some p o i n t i n l a t e February
and i n v o l v i n g the WLO.
or e a r l y March, the WLO IRC channel was no longer accessible.
Instead, the r e g u l a r p a r t i c i p a n t s of t h i s channel switched t o
using a "Jabber" server. Jat^l^er i s another I n t e r n e t
communication t o o l , s i m i l a r , but more s o p h i s t i c a t e d than IRC.
The IRC and Jabber conversations allowed me t o f e e l connected t o
others ^v^n when alone. Th^y helped me pass t h ^ time and ke^p
motivated throughout the deployment.

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SUBJECT: Statement i n Support of Providence I n q u i r y - U.S. v.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
6. (U) Facts regarding the unauthorized storage and d i s c l o s u r e
of the SIGACTs.
a. (U) As i n d i c a t e d above, I created copies of the CIDNE-I
and CIDNE-A SIGACTs tattles as p a r t of the process of backing up
i n f o r m a t i o n . At the time I d i d so, I d i d not i n t e n d t o use t h i s
i n f o r m a t i o n f o r any purpose other than f o r back-up. However, I
l a t e r decided t o release t h i s i n f o r m a t i o n p u b l i c l y . At t h a t
time I b e l i e v e d , and s t i l l b e l i e v e , t h a t these t a b l e s are two of
the most s i g n i f i c a n t documents of our time.
b. (U) On 8 January 2010, I c o l l e c t e d the CD-RW I stored i n
the conference room of the T-SCIF and placed i t i n t o the cargo
pocket of my Army Combat Uniform (ACU). At the end of my s h i f t ,
I took the CD-RW out of the T-SCIF and brought i t t o my
Containerized Housing U n i t (CHU). I copied the data onto my
personal l a p t o p . Later, at the beginning of my s h i f t , I
returned the CD-RW back t o the conference room of the T-SCIF.
c. (U) At the time I saved the SIGACTs t o my laptop, I
planned t o take them w i t h me on mid-tour leave, and decide what
t o do w i t h them. At some p o i n t p r i o r t o mid-tour leave, I
t r a n s f e r r e d the i n f o r m a t i o n from my computer t o a Secured
D i g i t a l memory card f o r my d i g i t a l camera. The SD card f o r the
camera also worked on my computer, and allowed me t o s t o r e the
SIGACT t a b l e s i n a secure manner f o r t r a n s p o r t .
d. (U) I began mid-tour leave on 23 January 2010, f l y i n g from
A t l a n t a , GA t o Reagan N a t i o n a l A i r p o r t i n V i r g i n i a . I a r r i v e d
at t^h^ home of my aunt, O^I^i^a M. Van Alstyne, i n Potomac, MD and
q u i c k l y got i n t o contact w i t h my then-lrooyfri^nd T y l e r R.
Watkins. T y l e r , then a student at Brandeis U n i v e r s i t y i n
Waltham, MA, and I made plans f o r me t o v i s i t i n the Boston, MA
area. I was e x c i t e d t o see T y l e r , and planned on t a l k i n g t o
Tyler about where our r e l a t i o n s h i p was going, and about my time
i n Iraq.
e. (U) However, when I a r r i v e d i n the Boston area, T y l e r and
I seemed t o have become d i s t a n t . He d i d not seem very e x c i t e d
about my r e t u r n from I r a q . I t r i e d t a l k i n g t o him about our
r e l a t i o n s h i p , but he refused t o make any plans. I also t r i e d
r a i s i n g the t o p i c of r e l e a s i n g the CIDNE-I and CIDNE-A SIGACT
t a b l e s t o the putolic.
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SUBJECT: Statement i n Support o f Providence I n q u i r y - U.S. v.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

^
i
^

^

f . (U) I asked Tyler h y p o t h e t i c a l questions about what he
would do i f he had documents t h a t he thought the p u b l i c needed
access t o . T y l e r didnot r e a l l y have a s p e c i f i c answer f o r me.
He t r i e d t o answer the question and t^e supportive, but seemed
confused by the question and i t s context. I then t r i e d t o be
more s p e c i f i c , but he asked too many questions. Rather than t r y
to e x p l a i n my dilemma, I decided t o ^ust drop t h e conversation.

^
^
^
^
^

g. (U) A f t e r a few days i n Waltham, I began f e e l i n g t h a t I
was overstaying my welcome, and I returned t o Maryland. I spent
the remainder o f my time on leave i n the Washington, DC area.

^
^

h. (U) During t h i s time, a b l i ^ ^ a r d bombarded the midA t l a n t i c , and I spent a s i g n i f i c a n t p e r i o d o f time e s s e n t i a l l y
stuck a t my aunt^s house i n Maryland. I began t o t h i n k about
what I knew, and t h e i n f o r m a t i o n I s t i l l had i n my possession.
For me, the SIGACTs represented the on-the-ground r e a l i t y o f
both the c o n f l i c t s i n I r a q and Afghanistan.
I f e l t we were
r i s k i n g so much f o r people t h a t seemed u n w i l l i n g t o cooperate
w i t h us, l e a d i n g t o f r u s t r a t i o n and hatred on both sides.

^

^

i. (U) I began t o become depressed a t the s i t u a t i o n t h a t we
found ourselves i n c r e a s i n g l y mired i n , y e a r - a f t e r - y e a r . The
SIGACTs documented t h i s i n great d e t a i l , and provided context t o
what we were seeing on-the-ground. I n attempting t o conduct
c o u n t e r - t e r r o r i s m (CT) and counter-insurgency (COIN) operations,
we became olosessed w i t h c a p t u r i n g and k i l l i n g human t a r g e t s on
l i s t s , on being suspicious o f and avoiding cooperation w i t h our
h o s t - n a t i o n p a r t n e r s , and i g n o r i n g the second and t h i r d order
e f f e c t s o f accomplishing short-term goals and missions.
^. (U) I b e l i e v e d t h a t i f t h e general p u b l i c , e s p e c i a l l y the
American p u b l i c , had access t o the i n f o r m a t i o n contained w i t h i n
the CIDNE-I and CIDNE-A t a b l e s , t h i s could spark a domestic
debate on t h e r o l e o f the m i l i t a r y and our f o r e i g n p o l i c y i n
general, as w e l l as i t r e l a t e d t o I r a q and Afghanistan.
I also
b e l i e v e d a d e t a i l e d analysis of the data over a long period of
time, by d i f f e r e n t sectors o f s o c i e t y , might cause s o c i e t y t o
re-evaluate the need, or even the desire t o engage i n CT and
COIN operations t h a t ignored t h e complex dynamics o f the people
l i v i n g i n the a f f e c t e d environment each day.

1^
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,

i
i

34468

UNCLASSIFIED
SUBJECT: Statement i n Support of Providence I n q u i r y -- U.S.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

v.

k. (U) At my aunt^s house, I debated about what I should do
w i t h the SIGACTs. I n p a r t i c u l a r , whether I should hold on t o
them, or d i s c l o s e them through a press agency. At t h i s p o i n t , I
decided i t made sense t o t r y and d i s c l o s e the SIGACT t a b l e s t o
an American newspaper.
1. (U) I f i r s t c a l l e d my l o c a l newspaper, the Washington Post
and spoke w i t h a woman saying she was a r e p o r t e r . I asked her
i f the Washington Post would be i n t e r e s t e d i n r e c e i v i n g
i n f o r m a t i o n t h a t would have enormous value t o the American
p u b l i c . Although we spoke f o r about f i v e minutes concerning the
general nature of what I possessed, I do not b e l i e v e she took me
s e r i o u s l y . She informed me t h a t the Washington Post would
p o s s i b l y be i n t e r e s t e d , but t h a t such decisions are made only
a f t e r seeing the i n f o r m a t i o n I was r e f e r r i n g t o , and a f t e r
c o n s i d e r a t i o n by the senior e d i t o r s .
m. (U) I then decided t o contact the l a r g e s t and most popular
newspaper, the New York Times. I c a l l e d the p u b l i c e d i t o r
number on the New York Times website. The phone rang and was
answered by a machine. I went through the menu t o the section
f o r news t i p s and was routed t o an answering machine. I l e f t a
message s t a t i n g I had access t o i n f o r m a t i o n about I r a q and
Afghanistan t h a t I b e l i e v e d was very important. However,
despite l e a v i n g my Skype phone number and personal email
address, I never received a r e p l y from the New York Times.
n. (U) I also b r i e f l y considered dropping i n t o the o f f i c e f o r
the p o l i t i c a l commentary blog P o l i t i c o . However, the weather
c o n d i t i o n s d u r i n g my leave hampered my e f f o r t s t o t i ^ a v ^ l .
o. (U) A f t e r these f a i l e d e f f o r t s , I u l t i m a t e l y decided t o
submit the m a t e r i a l s t o the WLO.
I was not sure i f WLO would
a c t u a l l y p u b l i s h the SIGACT t a L l e s , or^ even i f they d i d
p u b l i s h , I was concerned they might not be n o t i c e d by the
American media. However, based on what I read about WLO through
my research described above, t h i s seemed t o be the best medium
f o r p u b l i s h i n g t h i s i n f o r m a t i o n t o the world w i t h i n my reach.
p. (U) At my aunt^s house, I coined i n on an IRC conversation
and s t a t e d I had i n f o r m a t i o n t h a t needed t o he shared w i t h the
world. I wrote t h a t the i n f o r m a t i o n would help document the
t r u e costs of the wars i n I r a q and Afghanistan.
15
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SUBJECT: Statement i n Support of Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

U.S,

q. (U) One o f the i n d i v i d u a l s i n the IRC asked me t o describe
the i n f o r m a t i o n . However, before I could describe the
i n f o r m a t i o n , another i n d i v i d u a l pointed me t o the l i n k f o r the
WLO wehsite^s o n l i n e submission system.
r. (U) A f t e r ending my IRC connection, I considered my
options one more time. U l t i m a t e l y , I f e l t t h a t the r i g h t t h i n g
to do was t o release the SIGACTs. On 3 February 2010, I v i s i t e d
the WLO website on my computer, and c l i c k e d on the "Submit
Documents" l i n k . Next, I found the "submit your i n f o r m a t i o n
o n l i n e l i n k , " and elected t o submit the SIGACTs v i a the TOR
Onion Router (TOR) anonymizing network by a s p e c i a l l i n k .
s. (U) TOR i s a system intended t o provide anonymity o n l i n e .
The software routes I n t e r n e t t r a f f i c through network of servers
and other TOR c l i e n t s i n order t o conceal a user^s l o c a t i o n and
i d e n t i t y . I was f a m i l i a r w i t h TOR and had i t p r e v i o u s l y
i n s t a l l e d on my computer t o anonymously monitor the s o c i a l media
websites of m i l i t i a groups o p e r a t i n g w i t h i n c e n t r a l I r a q .
t . (U) I f o l l o w e d the prompts and attached the compressed
data f i l e s of the CIDNE-I and CIDNE-A SIGACTs. I attached a
t e x t f i l e I d r a f t e d w h i l e preparing t o provide the documents t o
the Washington Post. I t provided rough g u i d e l i n e s s t a t i n g " i t ^ s
already been s a n i t i z e d of any source i d e n t i f y i n g i n f o r m a t i o n .
You might need t o s i t on t h i s i n f o r m a t i o n , perhaps 90-180 days,
to f i g u r e out how best t o release such a large amount of data,
and t o p r o t e c t source. This i s possit^ly one of the more
s i g n i f i c a n t documents of our time, removing the fog of war, and
r e v e a l i n g t h ^ ti^ue n a t u r e o f ^ I s t c ^ n t u ^ y a^ymm^tric w ^ r f ^ ^ ^ .

Have a good day." A f t e r sending t h i s , I l e f t the SD card i n a
camera case a t my aunt^s house, i n the event I needed i t again
i n the f u t u r e .
u. (U) I r e t u r n e d from mid-tour leave on 11 February 2010.
Although the i n f o r m a t i o n had not yet been published by the WLO,
I f e l t a sense of r e l i e f by them having i t . I f e l t had
accomplished something t h a t allowed me t o have a c l e a r
conscience based upon what I had seen, read about and knew were
happening i n both I r a q and Afghanistan every day.

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UNCLASSIFIED
SUBJECT: Statement i n Support of Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

U.S,

7. (U) Facts regarding the unauthorized storage and d i s c l o s u r e
of "10REY^JAVI^13".
a. (U) I f i r s t became aware of d i p l o m a t i c cables d u r i n g my
t r a i n i n g p e r i o d i n AIT. I l a t e r learned about the Department of
State (DOS) Net-Centric Diplomacy (NCD) p o r t a l from the 2-lOBCT
S2, Captain (CPT) Steven Lim. CPT Lim sent a section-wide email
t o the other analysts and o f f i c e r s i n l a t e December 2009
c o n t a i n i n g the SIPRNet l i n k t o the p o r t a l , along w i t h
i n s t r u c t i o n s t o look at the cables contained w i t h i n and
i n c o r p o r a t e them i n t o our work product. S h o r t l y a f t e r t h i s , I
also n o t i c e d t h a t d i p l o m a t i c cables were being r e f e r r e d t o i n
products from the Corps-level, U.S. Forces-Iraq (USF-I).
h^. (U) Based on CPT Lim^s d i r e c t i o n t o become f a m i l i a r w i t h
i t s contents, I read v i r t u a l l y every published cable concerning
I r a q . I also l:oegan scanning the database and reading other,
random, cables t h a t piqued my c u r i o s i t y . I t was around t h i s
time, i n early-to-mid-January 2010 t h a t I began searching the
database f o r i n f o r m a t i o n on I c e l a n d . I became i n t e r e s t e d i n
I c e l a n d due t o IRC conversations I viewed i n the WLO channel
discussed an issue c a l l e d "Icesave." At t h i s time, I was not
very f a m i l i a r w i t h the t o p i c , but i t seemed t o be a b i g issue
f o r those p a r t i c i p a t i n g i n the conversation. This i s when I
decided t o i n v e s t i g a t e , and conduct a few searches on Iceland t o
f i n d out more.
c. (U) At the time, I d i d not f i n d anything discussing the
"Icesave" issue, e i t h e r d i r e c t l y or i n d i r e c t l y . I then
conducted an open source search f o r "Icesave." I then learned
t h a t Iceland was i n v o l v e d i n a dispute w i t h the United l^ingdom
(Ul^) and Netherlands concerning the f i n a n c i a l collapse of one or
more of Iceland^s banks. According t o open source r e p o r t s , much
of the put^lic controversy i n v o l v e d the U^^s use of " a n t i t e r r o r i s m l e g i s l a t i o n " against Iceland i n order t o freeze
I c e l a n d i c assets f o r payment of the guarantees f o r Ul^ depositors
t h a t l o s t money.
d. (U) S h o r t l y a f t e r r e t u r n i n g from mid-tour leave, I
returned t o the NCD t o search f o r i n f o r m a t i o n on Iceland and
"Icesave" as the t o p i c had not abated on the WLO IRC channel.
To my s u r p r i s e , on 14 February 2010, I found the cable
10REY^JAVI1^13 which referenced the "Icesave" issue d i r e c t l y .
17
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SUBJECT: Statement i n Support o f Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

U.S. v.

e. (U) The cable, published on 13 January 2010, was ^ust over
two pages i n l e n g t h . I read the cable, and q u i c k l y concluded
t h a t I c e l a n d was e s s e n t i a l l y being b u l l i e d , d i p l o m a t i c a l l y , by
two l a r g e r European powers. I t appeared t o me t h a t Iceland was
out o f v i a b l e s o l u t i o n s , and was now coming t o the U.S. f o r
assistance. Despite t h e i r q u i e t request f o r assistance, i t d i d
not appear we were going t o do anything. From my perspective,
i t appeared we were not g e t t i n g i n v o l v e d due t o t h e lack o f long
term g e o p o l i t i c a l b e n e f i t t o do so.
f . (U) A f t e r d i g e s t i n g the contents o f 10REY1^JAVI1^13, I
debated on whether t h i s was something I should send t o the WLO.
At t h i s p o i n t , the WLO had not put^lished nor acknowledged
r e c e i p t o f t h e CIDNE-I and CIDNE-A SIGACT t a b l e s . Despite not
knowing i f t h e SIGACTs were a p r i o r i t y f o r the WLO, I decided
the cable was something t h a t would be important, and I f e l t I
might be able t o r i g h t a wrong by having them p u b l i s h t h i s
document. I burned the i n f o r m a t i o n onto a CD-RW on 15 February
2010, took i t t o my CHU and saved i t onto my personal laptop.
g. (U) I navigated t o t h e WLO website v i a a TOR connection
l i k e before, and uploaded the document v i a t h e secure form.
Amazingly, the WLO published 10REY^JAVI^13 w i t h i n hours, proving
t h a t the form worked and t h a t they must have received the SIGACT
tables.

1^
UNCLASSIFIED

34472

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y — U.S. v.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
8. (U) Facts regarding the unauthorized storage and d i s c l o s u r e
of the 12 J u l y 2007 A i r Weapons Team (AWT) video.
a. (1^) During the mid-February 2010 timeframe, the 2-lOBCT
Targeting a n a l y s t , t h e n - S p e c i a l i s t (SPC) J i h r l e a h W. Showman and
others discussed video Ms. Showman found on the "T-Drive." The
video depicted a several i n d i v i d u a l s being engaged by an A i r
Weapons Team (AWT). At f i r s t , I d i d not consider the video very
s p e c i a l , as I had viewed countless other "war-porn" type videos
d e p i c t i n g combat. However, the recorded audio comments by the
AWT crew and the second engagement i n the video, o f an unarmed
bongo t r u c k , t r o u b l e d me.
b. (U) Ms. Showman and a few other analysts and o f f i c e r s i n
the T-SCIF commented on the video, and debated whether the crew
v i o l a t e d the Rules o f Engagement (ROE) i n the second engagement.
I shied away from t h i s debate, and instead conducted some
research on the event. I wanted t o l e a r n what happened, and
whether t h e r e was any background t o the events o f the day the
event occurred, 12 J u l y 2007.
c. (U) Using Google, I searched f o r the event hy i t s date and
general l o c a t i o n . I found several news accounts i n v o l v i n g two
Reuters employees who were k i l l e d during the AWT^s engagement.
Another s t o r y explained t h a t Reuters requested f o r a copy of the
video under the Freedom of I n f o r m a t i o n Act (FOIA). Reuters
wanted t o view the video i n order t o be able t o understand what
happened, and improve t h e i r s a f e t y p r a c t i c e s i n combat ^ones. A
spokesperson f o r Reuters was quoted saying t h a t the video might
h^lp ^ v o i d ^ ^ ^ ^ ^ ^ u i ^ ^ ^ i r ^ ^ ^
t h ^ t^^g^^y, ^t^d l ^ ^ l i ^ v ^ d t h ^ ^ ^
a compelling need f o r t h ^ immediate release o f the video.
d. (U) Despite the submission o f a FOIA request, the news
account explained t h a t CENTCOM r e p l i e d t o Reuters, s t a t i n g t h a t
they could not give a timeframe f o r considering the FOIA
request, and the video might no longer e x i s t . Another s t o r y I
found, w r i t t e n a year l a t e r , said t h a t even though Reuters was
s t i l l pursuing t h e i r request, they s t i l l d i d not receive a
formal response o r w r i t t e n determination i n accordance w i t h the
FOIA.

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34473

UNCLASSIFIED
SUBJECT: Statement i n Support of Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

U.S.

v.

e. (U) The f a c t n e i t h e r CENTCOM nor M u l t i - N a t i o n a l ForcesI r a q (MCF-I) would not v o l u n t a r i l y release the video troubled me
f u r t h e r . I t was c l e a r t o me t h a t the event happened because the
AWT mistakenly i d e n t i f i e d the Reuters employees w i t h a p o t e n t i a l
t h r e a t , and t h a t the people i n the bongo t r u c k were merely
attempting t o a s s i s t the wounded. The people i n the van were
not a t h r e a t , but "good Samaritans."
f . (U) The most alarming aspect of the video t o me, however,
was the seemingly d e l i g h t f u l h l c o d l u s t they appeared t o have.
They dehumanized the i n d i v i d u a l s they were engaging, and seemed
t o not value human l i f e by r e f e r r i n g t o them as "dead l:^astards"
and c o n g r a t u l a t i n g each other on the a b i l i t y t o k i l l i n large
numbers.
g. (U) At one p o i n t i n the video, there i s an i n d i v i d u a l on
the ground attempting t o crawl t o safety. The i n d i v i d u a l i s
s e r i o u s l y wounded. Instead of c a l l i n g f o r medical a t t e n t i o n t o
the l o c a t i o n , one of the AWT crew memhers v e r b a l l y asked f o r the
wounded person t o p i c k up a weapon so he would have a reason t o
engage. For me, t h i s seems s i m i l a r t o a c h i l d t o r t u r i n g ants
w i t h a magnifying glass.
h. (U) While saddened by the AWT crew^s lack of concern at^out
human l i f e , I was d i s t u r b e d by t h e i r response t o the discovery
of i n j u r e d c h i l d r e n at the scene. I n the video, you can see the
bongo t r u c k d r i v i n g up t o a s s i s t the wounded i n d i v i d u a l . I n
response, the AWT crew assumes the i n d i v i d u a l s are a t h r e a t .
They repeatedly request f o r a u t h o r i z a t i o n t o f i r e on the bongo
t r u c k , and once granted, they engage t h ^ v e h i c l e at l e a s t s i ^
times.
i . (U) S h o r t l y a f t e r the second engagement, a mechanized
i n f a n t r y u n i t a r r i v e s at the scene. Within minutes, the AWT
crew learns t h a t c h i l d r e n were i n the van and, despite the
i n j u r i e s , the crew e x h i b i t s no remorse. Instead, they
downplayed the s i g n i f i c a n c e of t h e i r actions saying " w e l l , i t ^ s
t h e i r f a u l t f o r b r i n g i n g t h e i r kids i n t o a b a t t l e . " The
AWT
crew members sound l i k e they lack sympathy f o r the c h i l d r e n or
t h e i r parents. Later, i n a p a r t i c u l a r l y d i s t u r b i n g manner, the
AWT crew v e r b a l i z e s enjoyment at the s i g h t of one of the ground
vehicles d r i v i n g over the bodies.

20
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34474

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y — U.S. v,
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
^. (U) As I continued my research I found an a r t i c l e
discussing a book "The Good S o l d i e r s , " w r i t t e n by Washington
Post w r i t e r David F i n k e l . I n Mr. Finkel^s hook, he w r i t e s about
the AWT a t t a c k . As I read an o n l i n e excerpt on "Google Books,"
I followed Mr. Finkel^s account o f the event, along w i t h the
video.
I q u i c k l y r e a l i s e d Mr. Finkel was quoting, I f e e l i n
verbatim, the audio communications o f the AWT crew. I t ^ s clear
t o me t h a t Mr. F i n k e l obtained access and a copy o f the video
during h i s tenure as an embedded j o u r n a l i s t .
k. (U) I was aghast at Mr. Finkel^s p o r t r a y a l o f the
i n c i d e n t . Reading h i s account, one would b e l i e v e the engagement
was somehow j u s t i f i e d as "payback" f o r an e a r l i e r a t t a c k t h a t
lead t o the death o f a Soldier. Mr. F i n k e l ends h i s account of
the engagement hy discussing how a Soldier f i n d s an i n d i v i d u a l
s t i l l a l i v e from t h e a t t a c k . He w r i t e s t h a t the Soldier f i n d s
him, and sees him gesture w i t h h i s two f o r e f i n g e r s together, a
common method i n the Middle-East t o communicate t h a t they are
f r i e n d l y . However, instead of a s s i s t i n g him, the S o l d i e r makes
an obscene gesture, extending h i s middle f i n g e r . The i n d i v i d u a l
apparently dies s h o r t l y t h e r e a f t e r . Reading t h i s , I can only
t h i n k of how t h i s person was simply t r y i n g t o help others, and
then q u i c k l y f i n d s he needs help as w e l l . To make matters
worse, i n the l a s t moments o f h i s l i f e , he continues t o express
h i s f r i e n d l y i n t e n t , only t o f i n d himself r e c e i v i n g t h i s w e l l
known gesture o f " u n f r i e n d l i n e s s . " For me, i t ^ s a l l a b i g mess,
and I^m l e f t wondering what these t h i n g s mean, and how i t a l l
f i t s together.
I t burdens me emotionally.
I . (U) T ^av^d a co^y ^ f t h ^ video on my w o r k s t a t i o n . I
searched f o r , and found the ROE, ROW Annexes and a flowchart
from the 2007 time p e r i o d , as w e l l as an u n c l a s s i f i e d ROE smart
card from 2006. On 15 February 2010, I burned these documents
onto a CD-RW, the same time I hurnediOREYl^JAVI^13 onto a CD-RW.
m. (U) At t h e time, I placed the video and ROE i n f o r m a t i o n
onto my personal laptop i n my CHU. I planned t o keep t h i s
i n f o r m a t i o n there u n t i l I redeployed i n Summer 2010. I planned
on p r o v i d i n g t h i s t o the Reuters o f f i c e i n London, UR t o a s s i s t
them i n preventing events such as t h i s i n the f u t u r e .

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34475

UNCLASSIFIED
SUBJECT: Statement i n Support of Providence I n q u i r y — U.S. v.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

n. (U) However, a f t e r the WLO published 10REY^JAVIR13, I
a l t e r e d my plans. I decided t o provide the video and ROEs t o
them, so t h a t Reuters would have t h i s i n f o r m a t i o n before I
redeployed from I r a q . On about 21 February 2010, as described
above, I used the WLO submission form and uploaded the
documents.

^
^
^
^
^
^

o. (U) The WLO released the video on 5 A p r i l 2010. A f t e r the
release, I was concerned about the impact of the video, and how
i t would be perceived hy the general p u b l i c . I hoped the p u b l i c
would be as alarmed as me about the conduct of the AWT crew
members. I wanted the American p u b l i c t o know t h a t not everyone
i n I r a q and Afghanistan were t a r g e t s t h a t needed t o he
n e u t r a l i z e d , hut r a t h e r people who were s t r u g g l i n g t o l i v e i n
the "pressure-cooker" environment of what we c a l l asymmetric
warfare.
p. (U) A f t e r the release, I was encouraged hy the response i n
the media and general p u h l i c who observed the AWT video. As I
hoped, others were ^ust as t r o u b l e d , i f not more t r o u b l e d , than
me by what they saw. At t h i s time, I began seeing r e p o r t s
claiming t h a t DoD and CENTCOM could not confirm the a u t h e n t i c i t y
of the video. A d d i t i o n a l l y , one of my supervisors CPT Casey
Fulton (nee Martin) stated her b e l i e f t h a t the video was not
a u t h e n t i c . I n response, I decided t o ensure t h a t the
a u t h e n t i c i t y of the video would not he questioned i n the f u t u r e .
On 25 A p r i l 2010 I e-mailed CPT Fulton a l i n k t o the video t h a t
was on our "T-Drive" and t o a copy of the video puhlished hy WLO
from the Open Source Center (OSC) so she could compare them
h^^^^if.
q. (U) Around t h i s timeframe, I burned a second CD-RW
c o n t a i n i n g the AWT video. I n order t o make i t appear a u t h e n t i c ,
I placed a c l a s s i f i c a t i o n s t i c k e r and wrote "Reuters FOIA Req"
on i t s face. I placed the CD-RW i n one of my personal CD cases
c o n t a i n i n g a set o f " S t a r t i n g out i n Arabic." I planned on
m a i l i n g the CD-RW t o Reuters a f t e r I redeployed so they could
have a copy t h a t was unquestionably a u t h e n t i c .

^
^
^
^
^
I

r. (U) Almost immediately a f t e r s u b m i t t i n g the AWT video and
ROE documents, I n o t i f i e d the i n d i v i d u a l s i n the WLO IRC t o
expect an important submission. I received a response from an
i n d i v i d u a l going hy the handle of " o f f i c e . "
22
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^

^
^

34476

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

U.S. v.

s. (U) At f i r s t our conversations were general i n nature, hut
over time, as our conversations progressed, I assessed t h i s
i n d i v i d u a l t o be an important p a r t o f the WLO. Due t o the
s t r i c t adherence o f anonymity hy the WLO, we never exchanged
i d e n t i f y i n g informations however, I b e l i e v e d the i n d i v i d u a l was
l i k e l y Mr. J u l i a n Assange, Mr. Daniel Schmidt, or a proxyr e p r e s e n t a t i v e o f Mr. Assange and Schmidt.
t . (U) As t h e communications t r a n s f e r r e d from IRC t o t h e
Jabber c l i e n t , I gave " o f f i c e , " and l a t e r "pressassociation" the
name o f "Nathaniel Frank" i n my address hook, a f t e r the author
of a hook I read i n 2009.
u. (U) A f t e r a p e r i o d of time, I developed what I f e l t was a
f r i e n d l y r e l a t i o n s h i p w i t h Nathaniel. Our mutual i n t e r e s t i n
i n f o r m a t i o n technology and p o l i t i c s made our conversations
enjoyable. We engaged i n conversation o f t e n , sometimes as long
as an hour o r more. I o f t e n looked forward t o my discussions
w i t h Nathaniel a f t e r work.
V. (U) The anonymity t h a t provided hy TOR, the Jahher c l i e n t ,
and WLO^s p o l i c y allowed me t o f e e l I could ^ust he myself, free
of the concerns o f s o c i a l l a b e l i n g and perceptions t h a t are
o f t e n place upon me i n r e a l l i f e (IRL). IRL, I lacked close
f r i e n d s h i p w i t h the people I worked w i t h i n my s e c t i o n , the S2
sections i n subordinate b a t t a l i o n s , and 2BCT as a whole. For
instance, I lacked close t i e s w i t h my roommate due t o h i s
discomfort regarding my perceived sexual o r i e n t a t i o n .
w.

(U) Over t h ^ n ^ x t few months, I s t a y e d i n f r e q u e n t c o n t a c t

w i t h N a t h a n i e l . We conversed on n e a r l y a d a i l y basis, and I
f e l t we were developing a f r i e n d s h i p . The conversations covered
many t o p i c s , and I enjoyed the a b i l i t y t o t a l k ahout p r e t t y much
anything, and not ^ust the p u b l i c a t i o n s t h a t the WLO was working
on.
X. (U) I n r e t r o s p e c t , I r e a l i z e these dynamics were
a r t i f i c i a l , and were valued more hy myself than Nathaniel. For
me, these conversations represented an o p p o r t u n i t y t o escape
from the immense pressures and a n x i e t y t h a t I experienced and
b u i l t up throughout the deployment. I t seemed t h a t as I t r i e d
harder t o " f i t i n " a t work, the more I seemed t o a l i e n a t e my
peers, and lose respect, t r u s t and the support I needed.
23
UNCLASSIFIED

34477

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

^
U.S. v.

9. (U) Facts regarding the unauthorized storage and d i s c l o s u r e
of documents r e l a t i n g t o detainments hy the I r a q i Federal Police
(FP), the Detainee Assessment B r i e f s (DABs), and t h e USACIC
report.
a. (U) On 27 February 2010, a r e p o r t was received from a
subordinate b a t t a l i o n . The r e p o r t described an event i n which
the FP detained f i f t e e n (15) i n d i v i d u a l s f o r p r i n t i n g " a n t i I r a q i l i t e r a t u r e . " By 2 March 2010, I received i n s t r u c t i o n s
from an S3 s e c t i o n o f f i c e r i n the 2-lOBCT T a c t i c a l Operations
Center (TOC) t o i n v e s t i g a t e t h e matter, and f i g u r e out who these
"had guys" were, and how s i g n i f i c a n t t h i s event was f o r the FP.
h. (U) Over t h e course o f my research, I found t h a t none o f
the i n d i v i d u a l s had previous t i e s w i t h a n t i - I r a q i actions or
suspected t e r r o r i s t o r m i l i t i a groups. A few hours l a t e r , I
received several photos from the scene from the subordinate
b a t t a l i o n . They were a c c i d e n t l y sent t o an o f f i c e r on a
d i f f e r e n t team i n the S2 s e c t i o n , and she forwarded them t o me.
These photos included p i c t u r e s of the i n d i v i d u a l s , p a l e t t e s o f
u n p r i n t e d paper, seized copies of the f i n a l p r i n t e d document,
and a h i g h - r e s o l u t i o n photo o f the p r i n t e d m a t e r i a l .
c. (U) I p r i n t e d a blown up copy of the h i g h - r e s o l u t i o n
photo, and laminated i t f o r ease of storage and t r a n s f e r . I
then walked t o t h e TOC and d e l i v e r e d the laminated copy t o our
category 2 i n t e r p r e t e r . She reviewed the i n f o r m a t i o n and ahout
a h a l f - h o u r l a t e r d e l i v e r e d a rough w r i t t e n t r a n s c r i p t i n
English t o the S2 s e c t i o n .
d. (U) I read the t r a n s c r i p t , and f o l l o w e d up w i t h her,
asking f o r her take on i t s contents. She s a i d i t was easy f o r
her t o t r a n s c r i b e verbatim since I blew up the photograph and
laminated i t . She s a i d the general nature o f the document was
benign. The documentation, as I assessed as w e l l , was merely a
s c h o l a r l y c r i t i q u e o f the then-current I r a q i Prime M i n i s t e r ,
Nouri a l - M a l i k i . I t d e t a i l e d c o r r u p t i o n w i t h i n the cabinet o f
a l - M a l i k i ^ s government, and t h e f i n a n c i a l impact o f t h i s
c o r r u p t i o n on the I r a q i people.
e. (U) A f t e r d i s c o v e r i n g t h i s discrepancy between t h e FP^s
r e p o r t , and t h e i n t e r p r e t e r ' s t r a n s c r i p t , I forwarded t h i s
discovery, i n person t o the TOC OIC and B a t t l e NCOIC.
2^
UNCLASSIFIED

'
^
^
^
i
^
^
i
^

34478

UNCLASSIFIED
SUBJECT: Statement i n Support of Providence I n q u i r y — U.S. v.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
f . (U) The TOC OIC and, the overhearing B a t t l e c a p t a i n ,
informed me they didnot need o r want t o know t h i s i n f o r m a t i o n
any more. They t o l d me t o "drop i t " and t o ^ust a s s i s t them and
the FP i n f i n d i n g out where more of these p r i n t shops c r e a t i n g
" a n t i - I r a q i l i t e r a t u r e " might he. I couldn^t b e l i e v e what I
heard, and I r e t u r n e d t o the T-SCIF and complained t o the other
analysts and my s e c t i o n NCOIC ahout what happened. Some were
sympathetic, hut no-one wanted t o do anything ahout i t .
g. (U) I am the type o f person who l i k e s t o know how t h i n g s
work, and as an a n a l y s t , t h i s means I always want t o f i g u r e out
the t r u t h . Unlike other analysts i n my s e c t i o n , or other
sections w i t h i n 2-lOBCT, I was not s a t i s f i e d w i t h ^ust
s c r a t c h i n g the surface, and producing "canned" or "cookiec u t t e r " assessments. I wanted t o know why something was the way
i t was, and what we could do t o c o r r e c t or m i t i g a t e a s i t u a t i o n .
I knew t h a t i f I continued t o a s s i s t the Baghdad FP i n
i d e n t i f y i n g the p o l i t i c a l opponents o f Prime M i n i s t e r a l - M a l i k i ,
those people would he a r r e s t e d , and i n the custody o f t h i s
s p e c i a l u n i t o f the Baghdad FP, very l i k e l y t o r t u r e d and not
seen again f o r a very long time, i f ever.
h. (U) Instead o f a s s i s t i n g the s p e c i a l u n i t o f the Baghdad
FP, I decided t o take the i n f o r m a t i o n and d i s c l o s e i t t o the WLO
i n the hope t h a t , before the upcoming 7 March 2010 e l e c t i o n ,
they could generate immediate press on the issue, and prevent
t h i s u n i t o f the FP from c o n t i n u i n g t o crack down on p o l i t i c a l
opponents. On ^ March 2010, I hurned the r e p o r t , the photos,
the high r e s o l u t i o n copy o f the pamphlet, and the i n t e r p r e t e r ' s
h^ndwi^itt^^n t ^ ^ n ^ c ^ ^ i ^ t on^o ^ C:0-RW. ^ t o ^ k
and c o p i e d t h e d a t a o n t o my p e r s o n a l computer.

C:0-^W tc^ my C:HtJ

i . (U) Unlike the times before, instead o f uploading the
i n f o r m a t i o n through the WLO websites^ submission form, I made a
Secure F i l e Transfer Protocol (SFTP) connection t o a "cloud"
drophox operated hy the WLO. The drophox contained a f o l d e r
t h a t allowed me t o upload d i r e c t l y i n t o i t .
Saving f i l e s i n t o
t h i s d i r e c t o r y allowed anyone w i t h l o g i n access t o the server t o
view and download them.

25
UNCLASSIFIEO

34479

UNCLASSIFIED
SUBJECT: Statement i n Support of Providence I n q u i r y — U.S. v.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
^. (U) A f t e r uploading these f i l e s t o the WLO on 5 March
2010, I n o t i f i e d Nathaniel over Jahher. Although sympathetic,
he s a i d t h a t the WLO needed more i n f o r m a t i o n t o confirm the
event i n order f o r i t t o he puhlished or t o gain i n t e r e s t i n the
i n t e r n a t i o n a l media. I attempted t o provide s p e c i f i c s , hut t o
my disappointment, the WLO wehsite chose not t o p u b l i s h t h i s
information.
k. (U) At the same time, I began s i f t i n g through i n f o r m a t i o n
from the U.S. Southern Command (SOUTHCOM) and J o i n t Task Force
(JTF) Guantanamo, Cuba (GTMO). The thought occurred t o me,
although u n l i k e l y , t h a t I wouldnot he s u r p r i s e d i f the
i n d i v i d u a l s detained hy the FP might he turned over hack i n t o
U.S. custody and ending up i n the custody of JTF-GTMO.
1. (U) As I digested through the i n f o r m a t i o n on JTF-GTMO, I
q u i c k l y found the detainee assessment h r i e f s (DABs). I
p r e v i o u s l y came across these documents before, i n 2009, hut d i d
not t h i n k much of th^m. However, t h i s time I was more curious
and during t h i s search I found them again. The DABs were
w r i t t e n i n standard DoD memorandum format, and addressed the
Commander, U.S. SOUTHCOM. Each memorandum gave basic background
i n f o r m a t i o n ahout a s p e c i f i c detainee held a t some p o i n t hy JTFGTMO.
m. (U) I have always heen i n t e r e s t e d on the issue of the
moral e f f i c a c y of our actions surrounding JTF-GTMO. On the one
hand, I always understood the need t o d e t a i n and i n t e r r o g a t e
i n d i v i d u a l s who might wish t o harm the U.S. and our a l l i e s . I
f ^ I t t h a t was what w^ wer^ t r y i n g t o do a t JTF-GTMO.

However,

the more I hecame educated on the t o p i c , i t seemed t h a t we found
ourselves h o l d i n g an i n c r e a s i n g number of i n d i v i d u a l s
i n d e f i n i t e l y t h a t we b e l i e v e d or knew were innocent, l o w - l e v e l
" f o o t s o l d i e r s " t h a t didnot have u s e f u l i n t e l l i g e n c e and would
he released i f they were s t i l l held i n t h e a t e r .
n. (U) I also r e c a l l e d t h a t i n e a r l y 2009, t h e then-newlye l e c t e d President Barack Ohama s t a t e d he would close JTF-GTMO
and t h a t the f a c i l i t y compromised our standing i n the world and
diminished our "moral a u t h o r i t y . " A f t e r f a m i l i a r i z i n g myself
w i t h the DABs, I agreed.

26
UNCLASSIFIED

34480

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y — U.S. v.
Private F i r s t Class (PFC) Bradley E. Manning (U)

o. (U) Reading through the DABs, I noted t h a t they were not
a n a l y t i c a l products. Instead, they contained summaries o f t e a r l i n e d versions o f I n t e r i m I n t e l l i g e n c e Reports (IIRs) t h a t were
o l d or u n c l a s s i f i e d . None o f the DABs contained names o f
sources or quotes from T a c t i c a l I n t e r r o g a t i o n Reports (TIRs).
Since the OABs were heing sent t o the U.S. SOUTHCOM commander, I
assessed t h a t they were intended t o provide very general
background i n f o r m a t i o n on each detainee, and not a d e t a i l e d
assessment.
p. (U) I n a d d i t i o n t o the manner the DABs were w r i t t e n , I
recognized t h a t they were a t l e a s t several years o l d , and
discussed detainees t h a t were already released from JTF-GTMO.
Based on t h i s , I determined t h a t the DABs were not very
important from e i t h e r an i n t e l l i g e n c e or n a t i o n a l s e c u r i t y
standpoint.
q. (U) On 7 March 2010, during my Jahher conversations w i t h
Nathaniel, I asked him i f he thought the DABs were o f any use t o
anyone. Nathaniel i n d i c a t e d t h a t although he didnot b e l i e v e
they were o f p o l i t i c a l s i g n i f i c a n c e he d i d h e l i e v e t h a t they
could he used t o merge i n t o the general h i s t o r i c a l account o f
what occurred a t JTF-GTMO. He also thought t h a t the DABs might
he h e l p f u l t o the l e g a l counsel o f those c u r r e n t l y and
p r e v i o u s l y h e l d a t JTF-GTMO.
r. (U) A f t e r t h i s discussion, I decided t o download the DABs.
I used an a p p l i c a t i o n c a l l e d "WGet" t o download the DABs. I
downloaded WGet o f f the NlPRNet laptop i n the T-SCIF l i k e other
programs.

I s a v ^ d t h ^ t o t ^ t o ^ CO-RW a n d p l ^ c ^ d

t h ^ ^x^cut^hl^

i n "My Documents" d i r e c t o r y of my user p r o f i l e on t h ^ DCGS-A
SIPRNet w o r k s t a t i o n .
s. (U) On 7 March 2010, I took the l i s t o f l i n k s f o r the DABs
and WGet downloaded them s e q u e n t i a l l y .
I hurned the DABs onto a
CD-RW and took i t t o my CHU and copied them t o my personal
computer. On 8 March 2010, I combined the DABs w i t h the USACIC
r e p o r t on the WLO i n t o a compressed " z i p " f i l e .
^ip files
c o n t a i n m u l t i p l e f i l e s which are compressed t o reduce t h e i r
si^e.
A f t e r c r e a t i n g the ^ i p f i l e , I uploaded the f i l e onto
t h e i r "cloud" drophox v i a SFTP. Once these were uploaded, I
n o t i f i e d Nathaniel t h a t the information was i n the "x"
d i r e c t o r y , which had heen assigned f o r my use.
27
UNCLASSIFIEO

34481

UNCLASSIFIED
SUBJECT: Statement i n Support of Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

U.S. v,

t . (U) E a r l i e r t h a t day, I downloaded the USACIC r e p o r t on
WLO. As discussed above, I p r e v i o u s l y reviewed the r e p o r t on
numerous occasions and, although I had saved the document onto
w o r k s t a t i o n b e f o r e , I could not locate i t . A f t e r I found the
document again, I downloaded i t t o my w o r k s t a t i o n and saved i t
onto the same CD-RW as the DABs, descrihed ahove.
u. (U) Although I my access included a great deal o f
i n f o r m a t i o n , I decided I had nothing else t o send t o the WLO
a f t e r sending them the DABs and the USACIC r e p o r t . Up t o t h i s
p o i n t I sent them the f o l l o w i n g :
(1) The CIDNE-I and CIDNE-A SIGACT t a b l e s .
(2) The "10REY^JAVI1^13" DOS cable.
(3) The 12 J u l y 2007 AWT video and the 2006 and 2007 ROE
documents.
(^) The SIGACT r e p o r t and supporting documents concerning
the 15 i n d i v i d u a l s detained hy the Baghdad FP.
(5) The U.S. SOUTHCOM and JTF-GTMO DABs.
(6) The USACIC r e p o r t on the WLO and wehsite.
V. (U) Over the next few weeks, I d i d not send any a d d i t i o n a l
i n f o r m a t i o n t o the WLO. I continued t o converse w i t h Nathaniel
over the Jahher c l i e n t , and i n the WLO IRC channel. Although I
stopped s e n d i n g documents t o WI^O, no one a s s o c i a t e d w i t h t h e WLO

pressured me i n t o g i v i n g more i n f o r m a t i o n . The decisions t h a t I
made t o send documents and i n f o r m a t i o n t o the WLO and wehsite
were my own d e c i s i o n s , and I take f u l l r e s p o n s i b i l i t y f o r my
actions.

28
UNCLASSIFIEO

34482

^

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y — U.S. v.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
10. (U) Facts regarding the unauthorized storage and disclosure
of other government documents.
a. (U) On 22 March 2010, I downloaded two documents. I found
these documents over the course o f my normal d u t i e s as an
a n a l y s t . Based on my t r a i n i n g and the guidance o f my superiors,
I looked a t as much i n f o r m a t i o n as p o s s i b l e . Doing so provided
me w i t h the a b i l i t y t o make connections others might miss.
h. (U) On several occasions d u r i n g the month o f March, I
accessed i n f o r m a t i o n from a government e n t i t y . I read several
documents from a s e c t i o n w i t h i n t h i s government e n t i t y . The
content of two o f these documents upset me g r e a t l y . I had
d i f f i c u l t y b e l i e v i n g what t h i s s e c t i o n was d i s c u s s i n g .
c. (U) On 22 March 2010, I downloaded the two documents t h a t
I found t r o u b l i n g . I compressed them i n t o a z i p f i l e named
" h l a h . z i p " and hurned them onto a CD-RW. I took the CD-RW t o my
CHU and saved the f i l e t o my personal computer. I uploaded the
i n f o r m a t i o n t o the WLO wehsite using the designated drop-hox.

29
UNCLASSIFIEO

34483

UNCLASSIFIED
SUBJECT: Statement i n Support of Providence I n q u i r y —
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)

U.S,

11. (U) Facts regarding the unauthorized storage and d i s c l o s u r e
of the NCD DOS cables.
a. (U) I n l a t e March I received a warning over Jahher from
Nathaniel t h a t the WLO wehsite would he p u b l i s h i n g the AWT
video. He i n d i c a t e d t h a t the WLO would he very busy and the
frequency and i n t e n s i t y of our Jahher conversations decreased
significantly.
h. (U) During t h i s time, I had nothing hut work t o d i s t r a c t
me.
I read more of the d i p l o m a t i c cables puhlished on the DOS
NCD server. With my i n s a t i a b l e c u r i o s i t y and i n t e r e s t i n
g e o p o l i t i c s , I hecame f a s c i n a t e d w i t h them. I read not only
cables on I r a q , hut also ahout c o u n t r i e s and events I found
i n t e r e s t i n g . The more I read, the more I was f a s c i n a t e d hy the
way we d e a l t w i t h other nations and o r g a n i s a t i o n s . I also began
t o t h i n k t h a t they documented backdoor deals and seemingly
c r i m i n a l a c t i v i t y t h a t didnot seem c h a r a c t e r i s t i c of the de
f a c t o leader of the f r e e world.
c. (U) Up t o t h i s p o i n t during the deployment, I had issues I
s t r u g g l e d w i t h and d i f f i c u l t y at work. Of the documents
released, the cables are the only one I was not a b s o l u t e l y
c e r t a i n couldn^t harm the U.S.
I conducted research on the
cables puhlished on NCD, as w e l l as how DOS cables work i n
general. I n p a r t i c u l a r , I wanted t o know how each cable was
puhlished on SIPRNet v i a the NCD.
d.

(U) As p a r t of my open-source research, I found a document

p u h l i s h e d hy 00^ on i t s o f f i c i a l w e h s i t e .

The

document p r o v i d e d

guidance on c a p t i o n markings f o r i n d i v i d u a l cahles and handling
i n s t r u c t i o n s f o r t h e i r d i s t r i b u t i o n . I q u i c k l y learned t h a t
c a p t i o n markings c l e a r l y d e t a i l the s e n s i t i v i t y l e v e l of a DOS
cable. For example, "NODIS" (No D i s t r i b u t i o n ) was used f o r
messages of the highest s e n s i t i v i t y , and were only d i s t r i b u t e d
to the a u t h o r i s e d r e c i p i e n t s . The "SIPDIS" (SIPRNet
D i s t r i b u t i o n ) c a p t i o n was a p p l i e d only t o r e p o r t i n g and other
i n f o r m a t i o n a l messages t h a t were deemed appropriate f o r release
to a wide number of i n d i v i d u a l s .

30
UNCLASSIFIED

34484

UNCLASSIFIED
SUBJECT: Statement i n Support of Providence I n q u i r y — U.S. v.
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
e. (U) According t o the DOS guidance f o r a cable t o have the
SIPDIS c a p t i o n i t could not include any other captions t h a t were
intended t o l i m i t d i s t r i b u t i o n . The SIPDIS c a p t i o n was only f o r
i n f o r m a t i o n t h a t could he shared w i t h anyone w i t h access t o
SIPRNet. I was aware t h a t thousands o f m i l i t a r y personal, DoD,
DOS, and other c i v i l i a n agencies had easy access t o t h e cahles.
The f a c t t h a t t h e SIPDIS caption was only f o r wide d i s t r i b u t i o n
made sense t o me given t h a t the vast m a j o r i t y o f t h e NCD cahles
were not c l a s s i f i e d .
f. (U) The more I read the cahles, the more I came t o the
conclusion t h a t t h i s type o f i n f o r m a t i o n should become p u b l i c .
I once read and used a quote on open diplomacy w r i t t e n a f t e r t h e
F i r s t World War, and how t h e world would he a b e t t e r place i f
states would avoid making secret pacts and deals w i t h and
against each other. I thought these cahles were a prime example
of the need f o r a more open diplomacy.
Given a l l t h e DOS
i n f o r m a t i o n I read, t h e f a c t t h a t most o f t h e cahles were
u n c l a s s i f i e d , and t h a t a l l o f the cahles had t h e SIPDIS caption,
I h e l i e v e d t h a t t h e p u b l i c release of these cahles would not
damage t h e U.S. However, I d i d h e l i e v e t h e cahles might he
embarrassing, since they represented very honest opinions and
statements hehind t h e hacks o f other nations and organisations.
I n many ways, these cahles are a catalog o f c l i q u e s and gossip.
I b e l i e v e d exposing t h i s i n f o r m a t i o n might make some w i t h i n the
DOS and others unhappy.
g. (U) On 28 March 2010, I began downloading a copy o f t h e
SIPDIS cahles using the program WGet descrihed above. I used
instances o f t h e WGet a p p l i c a t i o n t o download the NCD cahles i n
the background, as I worked on my d a i l y tasks. The NCD cahles
were downloaded from 28 March 2010 t o 9 A p r i l 2010. A f t e r
downloading t h e cahles, I saved them onto a CD-RW. These cahles
went from the e a r l i e s t dates i n NCD t o 28 February 2010. I took
the CD-RW t o my CHU on 10 A p r i l 2010. I sorted the cahles on my
personal computer, compressed them using the B^ip2 compression
a l g o r i t h m descrihed above, and uploaded them t o the WLO v i a the
designated drophox descrihed above.

31
UNCLASSIFIED

34485

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y -- U.S. v,
P r i v a t e F i r s t Class (PFC) Bradley E. Manning (U)
h. (U) On 3 May 2010, I used WGet t o download an update o f
the cahles f o r t h e months o f March 2010 and A p r i l 2010, and
saved the i n f o r m a t i o n onto a z i p f i l e and hurned i t t o CD-RW. I
then took the CD-RW t o my CHU and saved them t o my computer.
i . (U) I l a t e r found t h a t the f i l e was corrupted d u r i n g the
t r a n s f e r . Although I intended t o resave another copy o f these
cahles, I was removed from the T-SCIF on 8 May 2010, a f t e r an
altercation.

32
UNCLASSIFIED

34486

UNCLASSIFIED
12. (U) Facts regarding the unauthorized storage and d i s c l o s u r e
of the Gharani (Farah p r o v i n c e ) , Afghanistan 15-6 i n v e s t i g a t i o n
and videos.
a. (U) I n l a t e March 2010, I discovered a U.S. CENTCOM
d i r e c t o r y on a 2009 a i r s t r i k e i n Afghanistan. I was searching
CENTCOM f o r i n f o r m a t i o n I could use as an a n a l y s t . As descrihed
above, t h i s was something t h a t myself and other analysts and
o f f i c e r s d i d on a frequent basis.
h. (U) As I reviewed the documents, I r e c a l l e d the i n c i d e n t
and what happened. The a i r s t r i k e occurred i n the Gharani
v i l l a g e i n the Farah Province of Northwestern Afghanistan. I t
received worldwide press coverage during the time as i t was
reported t h a t up t o 100 t o 150 Afghan c i v i l i a n s , mostly women
and c h i l d r e n , were a c c i d e n t l y k i l l e d during the a i r s t r i k e .
c. (U) A f t e r going through the r e p o r t and i t s annexes, I
began t o view the i n c i d e n t as her^ng s i m i l a r t o the 12 July 2007
AWT engagements i n I r a q . However, t h i s event was n o t i c e a b l y
d i f f e r e n t i n t h a t i t i n v o l v e d a s i g n i f i c a n t l y higher number o f
i n d i v i d u a l s , l a r g e r a i r c r a f t , and much heavier munitions. Also,
the conclusions o f the r e p o r t are even more d i s t u r b i n g than
those of the 12 J u l y 2007 i n c i d e n t .
d. (U) I d i d not see anything i n the 15-6 r e p o r t or i t s
annexes t h a t gave away s e n s i t i v e i n f o r m a t i o n . Rather, t h e
i n v e s t i g a t i o n and i t s conclusions help e x p l a i n how t h i s i n c i d e n t
occurred and what those i n v o l v e d should have done, and how t o
avoid an event l i k e t h i s from o c c u r r i n g again.
e. (U) A f t e r reviewing the r e p o r t and i t s annexes, I
downloaded the 15-6 i n v e s t i g a t i o n , PowerPoint p r e s e n t a t i o n s , and
s o v ^ r a l other supporting documents t o my DCG^-A w o r k s t a t i o n . I
also downloaded t h r e e ^ i p f i l e s c o n t a i n i n g the videos of the
i n c i d e n t . I hurned t h i s i n f o r m a t i o n onto a CD-RW and
t r a n s f e r r e d i t t o the personal computer i n my CHU. E i t h e r l a t e r
t h a t day or the next day, I uploaded the i n f o r m a t i o n t o the WLO
wehsite, t h i s time using a new v e r s i o n o f the WLO wehsite
submission form. Unlike other times using the submission form
above, I d i d not a c t i v a t e the TOR anonymizer.

33
UNCLASSIFIED

34487

UNCLASSIFIED
SUBJECT: Statement i n Support o f Providence I n q u i r y —
Private F i r s t Class (PFC) Bradley E. Manning (U)

U.S. v.

13. (U) This concludes my statement and f a c t s f o r t h i s
providence i n q u i r y . The p o i n t o f contact (POC) f o r t h i s
memorandum i s the undersigned a t HHC, USAG, J o i n t Base MyerHenderson H a l l , Fort Myer, V i r g i n i a 22211.

3^
UNCLASSIFIED



. . 34488

UNITED STATES
ATTACHMENT T0
v.
STATEMENT
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: 30 January 2013



I. NATURE AND USES OF THIS ATTACHMENT

1. 1, PFC Bradley Manning, along with Defense Counsel, agree that the facts contained in my
statement in support of the providence inquiry are true, susceptible of proof, and admissible in
evidence. The facts in my statement along with the admissions in this attachment to my
statement may be considered by the military judge in determining the providence of my plea of
guilty. The facts may also be considered by the military judge in determining an appropriate
sentence for me.

II. ELEMENTS OF THE CHARGES

2. I admit that the following elements correctly describe what I did and may be used to support
my plea of guilty to the lesser-included offenses of Speci?cation Charge II and to my plea of guilty to Specification 5 of Charge

a) LIO of Specifications Charge 11: Transmitting Defense
Information:

(1) That at or near Contingency Operating Station Hammer, Iraq,

SPECIFICATION 2: between on or about 14 February 2010 and 21 February 2010; the
accused, without authorization, had possession of, access to, or control over: a video file named
?12 JUL 07 CZ ENGAGEMENT ZONE 30 GC Anyone.avi.?;

SPECIFICATION 3: between on or about 17 March 2010 and 22 March 2010; the
accused, without authorization, had possession of, access to, or control over: more than one
classi?ed memorandum produced by a United States government intelligence agency;

SPECIFICATION 5: between on or about 5 January 2010 and 3 February 2010; the
accused, without authorization, had possession of, access to, or control over: more than 20
classi?ed records from the Combined Information Data Network Exchange Iraq database;

PFC PROVIDENCE



. . 34489

SPECIFICATION 7: between on or about 5 January 2010 and 3 February 2010; the
accused, without authorization, had possession of, access to, or control over: more than 20
classi?ed records from the Combined Information Data Network Exchange Afghanistan
database;

SPECIFICATION 9: on or about 8 March 2010; the accused, without authorization, had
possession of, access to, or control over: more than 3 classi?ed records from a United States
Southern Command database;

SPECIFICATION 10: between on or about 10 April 2010 and 12 April 2010; the accused,
without authorization, had possession of, access to, or control over: more than 5 classi?ed
records relating to a military operation in Farah Province, Afghanistan occurring on or about 4
May 2009;

SPECIFICATION 15: on or about 8 March 2010; the accused, without authorization, had
possession of, access to, or control over: a classi?ed record produced by a United States Army
intelligence organization, dated 18 March 2008;

(Elements Common to all speci?cations)

(2) the accused willfully communicated the classi?ed records, classi?ed memorandum,
videos, and ?les described for each speci?cation in element (1) to a person not entitled to receive
it;

(3) under the circumstances, the conduct of the accused was to the prejudice of good order
and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

b) LIO of Speci?cations 13 and 14 of Charge 11: Fraud and Related Activity With
Computers:

(1) That at or near Contingency Operating Station Hammer, Iraq,
SPECIFICATION 13: between on or about 28 March 2010 and on or about 4 May 2010;
SPECIFICATION 14: between on or about 14 February 2010 and 15 February 2010;

the accused knowingly accessed a computer on a Secret Internet Protocol Router Network.
(2) the accused obtained information that has been determined by the United States

Government by Executive Order or statute to require protection against unauthorized disclosure
for reasons of national defense or foreign relations; to wit:

. . 34490

SPECIFICATION 13: more than 75 classi?ed United States Department of State cables;
SPECIFICATION 14: a classi?ed Department of State cable title ?Reykjavik?l3?;

(3) the accused communicated, delivered, transmitted, or caused to be communicated,
delivered or transmitted the information to a person not entitled to receive it;

(4) the accused acted willfully; and

(5) under the circumstances, the conduct of the accused was to the prejudice of good order
and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

c) Speci?cation 5 of Charge Violation of a Lawful General Regulation:

(1) That there was in existence a certain lawful general regulation in the following terms:
Paragraph 7-4, Army Regulation 380-5, dated 29 September 2000;

(2) That the accused had a duty to obey such regulation; and

(3) That between on or about 8 January 2010 and on or about 27 May 2010, at or near
Contingency Operating Station Hammer, Iraq, the accused violated this lawful general regulation
by wrongfully storing classi?ed information.

ADMISSIONS

Speci?cation 5 of Charge Violation of a Lawful General Regulation

3. Through my training, I was aware of the requirements of Army Regulation 380-5, the
Department of Army Information Security Program regulation to properly store classi?ed
information. I understood that under this regulation, I could be subject to punishment if I
improperly stored classi?ed information.

a. I admit that I knew that there was in existence a certain lawful general regulation in the
following terms: Paragraph 7-4, Army Regulation 380-5, dated 29 September 2000;

b. I admit that I had a duty to obey this regulation; and
c. I admit that between on or about 8 January 2010 and on or about 27 May 2010, at or near
Contingency Operating Station Hammer, Iraq, I violated this lawful general regulation by

wrongfully storing classi?ed information.

LIO of Speci?cations Charge II: Transmitting Defense Information



. . 34491

4. I understood that I was prohibited, without proper authorization, from knowingly, willfully, or
negligently disclosing classi?ed or sensitive information to unauthorized persons.

a. I admit that at or near Contingency Operating Station Hammer, Iraq,

SPECIFICATION 2: between on or about 14 February 2010 and 21 February 2010; that I
did, without authorization, have possession of, access to, or control over: a video ?le named ?l2
JUL 07 CZ ENGAGEMENT ZONE 30 GC Anyone.avi.?;

SPECIFICATION 3: between on or about 17 March 2010 and 22 March 2010; that I did,
without authorization, have possession of, access to, or control over: more than one classi?ed
memorandum produced by a United States government intelligence agency;

SPECIFICATION 5: between on or about 5 January 2010 and 3 February 2010; that I did,
without authorization, have possession of, access to, or control over: more than 20 classi?ed
records from the Combined Information Data Network Exchange Iraq database;

SPECIFICATION 7: between on or about 5 January 2010 and 3 February 2010; that I did,
without authorization, have possession of, access to, or control over: more than 20 classi?ed
records from the Combined Information Data Network Exchange Afghanistan database;

SPECIFICATION 9: on or about 8 March 2010; that I did, without authorization, have
possession of, access to, or control over: more than 3 classi?ed records from a United States
Southern Command database;

SPECIFICATION 10: between on or about 10 April 2010 and 12 April 2010; that I did,
without authorization, have possession of, access to, or control over: more than 5 classi?ed
records relating to a military operation in Farah Province, Afghanistan occurring on or about 4
May 2009;

SPECIFICATION 15: on or about 8 March 2010; that I did, without authorization, have
possession of, access to, or control over: a classi?ed record produced by a United States Army
intelligence organization, dated 18 March 2008;

(Elements Common to all speci?cations)
b. I admit that I willfully communicated the classi?ed records, classi?ed memorandum,
videos, and ?les described for each speci?cation in element (1) to a person not entitled to receive

it;

c. I admit that under the circumstances, my conduct was to the prejudice of good order and
discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

. . 34492

LIO of Speci?cations 13 and 14 of Charge 11: Fraud and Related Activity With Computers
5. I understood that I was prohibited, without proper authorization, from knowingly, willfully, or
negligently disclosing classi?ed or sensitive information to unauthorized persons.

a. I admit that at or near Contingency Operating Station Hammer, Iraq,

SPECIFICATION 13: between on or about 28 March 2010 and on or about 4 May 2010;
SPECIFICATION 14: between on or about 14 February 2010 and 15 February 2010;
I knowingly accessed a computer on a Secret Internet Protocol Router Network.

b. I admit that I obtained information that had been determined by the United States
Government by Executive Order or statute to require protection against unauthorized disclosure
for reasons of national defense or foreign relations; to wit:

SPECIFICATION 13: more than 75 classi?ed United States Department of State cables;
SPECIFICATION 14: a classified Department of State cable title ?Reykjavik-13?;

c. I admit that I communicated, delivered, transmitted, or caused to be communicated,
delivered or transmitted the above referenced information to a person not entitled to receive it;

d. I admit that I acted willfully; and

e. I admit that under the circumstances, my conduct was to the prejudice of good order and
discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

E. A ID OOMBS

PFC, USA Civilian Defense Counsel

34493

FOROFFICIALUSEONLY
INTHEUNITEDSTATESARMY
FIRSTJUDICIALCIRCUIT
UNITED STATESOF AMERICA

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

ORDER: STORAGEOF
APPELLATEEXHIBITSNOT
ACCOMPANYING THE
THERECORDOFTRIAL
26 February 2013

On50dobor 2012,tho Court ordered the Govommont to devdopaplan to store any
Appollafo Exhibits not accompanying the Record ofTrial ("ROT") in one place under one
custodian withaprocodure fbr systematic reviews by tho Govommont to ensure accountability of
such documents through any appellate review. On8Fobmary 2013,tho Govommont submitted
ifs proposed plan and notifted tho Court that all applicable govommont organizations and tho
Offtcooffhe Clerk offhe Court agree to tho storage plan as stated.
Findings ofFact:
1. The ROT in the above-captioned court-martial will consist ofboth dassifted and unclassifted
Appellate Exhibits. Several ofthose Appellate Exhibits, both dassifted and unclassifted, are
motions fbr limited disclosure ofclassifted information under Military Rule ofEvidence (MRE)
505(g)(2). Tho dassifted documents fbr which limited disclosure was sought were enclosed to
those motions. Tho Court subsequently conducted ^^^^^^^^ and ^^^^^^^ reviews ofthose
dassifted documents and issued several Orders goveming the disdosure of such documents.
2. Forama^ority ofthose documents, fhe Court conducted an ^^^^^^^^ and ^^^^^^^ review in
chambers (hereinafter, those documents reviewed in chambers are rofonod to as "Documents InChambers"). Forasmaller portion ofthose documents, tho Court traveled fo multiple locations
withinVirginia, Maryland, and the District of Columbia to conduct an ^^^^^^^^ and ^^^^^^^
review based on fhe informafion'sdassiftcafionleye1,which indudes "Top Secret" (TS) and
"Sensitive Compartmented Infbrmation" (SCI), and strict control measures (hereinafter, those
documents roviowod at other govommont fadlifies are refened to as "Documents Off-Sifo").
The prosecution estimates that "Documents Off^Site" total no moro than 2,000 pages.
3. Tho Courtftndsthat tho Govommonf'sinterosf in protecting national security and preventing
tho dissominafion oftho dassifted information in tho "Documents Off-Sifo" is an oveniding
inforost that would bo prejudiced iftho documents were not ftled under seal and accompanied tho
record offriaL The ordered plan fbr storage of appellate exhibits not accompanying tho record of
trial is nanowly tailored fo protect the oveniding interest and there are no adequate reasonable
altomativos.

FOR OFFICIAL USE ONLY

J J ^ ™ ™ ^
PAOE OF PAGES

34494

FOROFFICIALUSEONLY
The Law:
1. Aseparafe record shaft bo kept fbr each general court-martial proceeding.
Rules fbr
CourtsMartial (RCM)1103(a); UCMJ art. 54(a) (2012).Tho prosecution, undorthodirodion of
fhe military judge, shall prepare the ROT as proscribed inRCM1103 andRCM 1305. ^^^RCM
1103(b);Amiy Rogulation(AR) 2710, para.541(a).Fo11oy^inginifial adion, fhe ROT fbr
general courtmartial proceedings shall be forwarded tothe Offtce oftho Clerk of the Court.
AR2710,para 5 46(a)

2. Ifdassifted information is withheld from tho defense under Military Rule ofEvidence 505,
"tho entire unaltered text of tho relevant documents as well as tho Government'smotion and any
materials submitted in support fhereofshall ho sealed and attached tothe record oftrial as an
appo11ateexhibit"MRE 505(g)(4); RCM1103A;.^^^^/.^^^^^^^^^^^^^.^y^/^,32MJ 724,
726 (A.F.CM.R.1991)(m1ing that "a military judge must makoarocord of every signiftcant^^
^^^^^^acfivify(other than his legal research) adequate fo assure that his decisions are
roviowable on appeal"). Sealed exhibits may only bo examined under limited drcumstances, one
ofwhichindudosforappe11aferoviow^^^RCM 1003A(b)(4) MRE505 sfafosfhaf"[sjuch
material shall bo made availableto reviewing authorities in dosed proceedings fbr the purpose of
reviewing the determination oftho militaryjudge." MRE 505(g)(4); .^^^^/.^^^^^^^^^^^^^.^v.
^^v^^.^,49 M.J.434,437 (C.A.A.F.1998) (mling that the appellate court conoctlyroviowod
sealed documents withheld from the accused attrial under MRE 506 ^^^^^^^^ and did not abuse
its discretion by withholding those sealed documents from appellate defense counsel).
ORDER:
1. All Appellate Exhibits, except fbr "Documents Off-Sito,"shal1 accompany the ROTwhen
forwardedtofhoOfftcooffheC1erkoffhoCourt^^^AR2710,para 5 46(a) ThoOfftcoof
the Clerk oftho Court shall be responsible fbr storing those Appollafo Exhibits accompanying tho
ROT. ^^^^^,.^^^^/.^t^ United States Army Court of Criminal Appeals, Intemal Rules ofPractice
and Procedure, Rules 30.land 30.5.
2. The ROTshall consist oftwo placeholders: (l)ap1aceho1derintheunclassiftedROT;and
(2)ap1aceholder in the classiftedROT,if needed. An unclassifted placeholder shall be included
in tho undassiftodROT fbr all dassifted Exhibits. The unclassifted placeholder shall include an
unclassifted description of where fhe dassiftodROT is located. Adassiftod placeholder shall bo
included in the dassiftodROT for only those Appellate Exhibits y^hoso storage is govemed by
this Order (i.e., "Documents Off Sife"). The dassifted placeholder shall include where the
particular Appellate Exhibit is being stored and the level of dassiftcafion, to include any read-on
requirements, oftho particular Appellate ExhibiL Sample dassifted and unclassifted
placeholders are ondosod to tho Govemmonf'sproposod storage plan.
3. "Documents Off^Sito" shall not accompany tho ROT based upon the particular dassiftcafion
level or sfrid control measures oftho information containod therein.

FOROFFICIALUSEONLY

34495

FOROFFICIALUSEONLY
4. "Documents Off^Site" shall ho stored inadodicatedtwo-drawor safe located inthe Litigation
Division ofthe Central Intelligence Agency. Tho offtce which will store the safe isaSensitive
Compartmented InformafionFacility. The safe will have one combination fbr both drawers and
will only store "Documents OfT Sife." "Documents Off^Sifo" will bo separated hy Exhibit
number and sealed separately. Each separate sealing order will include tho contact information
fbr the applicable equify holder whoso infbrmation is contained within tho given Appellate
ExhibiL Asample Sealing Order is enclosed to tho Govommont'sproposod storage plan.
4. Tho safe combination shall bo stored by tho fbllowing confrolled billots: (1)fho Deputy Chief
in the Litigation Division ofthe Central Intelligonco Agency; (2) tho Spedal Assistant in the
Litigafion Division oftho Central Intolligonce Agency; and (3)fhe Area Security Offtcer within
tho Offtce oftho General Counsel oftho Central Intelligence Agency.
5. In addition to those billets set fbrth in paragraph4,the following controlled billets shall have
access tothe contents ofthe safe, pending obtaining tho proper security dearance and readon
requirements detailed in paragraph 6: (l)Chiof ofJustice, tho Offtce ofthe Staff Judge
Advocate("OSJA"),Mi1itaryDistridofWashingfon("MDW");(2)seniorpara1ogal,OSJA,
MDW; (3)fheC1erk oftho Court, United States ArmyCourtofCriminalAppea1s(ACCA);(4)
the Deputy Clerk ofthe Court,ACCA;and(5) tho military judges ofACCA detailed to this case,
should this case appear before tho appellate court(the "appellate court judges"), foindudea
dologafod commissioner assisting the appellate court. Additiona11y,tho load trial counsel in the
above-captioned court-martial, MAJ Ashden Fein, shall bo given such access fbr continuity
purposes.
6. MDW,the Offtce ofthe Clerk ofthe Court, and the Cenfral Intelligonco Agency shall ho
responsible fbr ensuring persons occupying those billots sot fbrth in paragraphs 4-5havo and
maintain proper security doarancos, and are properly read-on. The requisite security dearance is
TS-SCI and tho necessary read-on requirements are SI, TI^,G, and HCS. Some oftho sealed
Appellate Exhibits contain Altomafive Compensatory Control Measures(ACCM) and Spedal
Access Programs (SAP) material that will require additional read-on requirements, if and when
those exhibits are unsealed.
7. Persons occupying the above billets at MDW and the Offtce ofthe Clerk ofthe Court shall be
responsible fbr conductingaperiodic review offhe envelopes containing the sealed Appellate
Exhibits fbrthe solo purpose ofconftrming their continued proper storage. Persons conducting
this review shall account fbr each Exhibit and memorialize their review with fhe memorandum
fbr record enclosed to the Govemment'sproposod storage plan,which shall then become part of
the ROT,andhy marking his/her initials with the dateofhis/herreview on the envelope of each
sealed Exhibit whoso proper storage was conftrmed. Persons conducting this periodic review
shall not tmseal tho envelopes. Before the ROT is forwarded to the Offtce oftho Clerk oftho
Court, MDW shall bo primarily responsible fbr conducting this review. After tho ROT is
forwarded to tho Offtce oftho Clerk oftho Court, fhe Offtce oftho Clerk offhe Court shall bo
primarily responsible fbr conducting fhis review. The Clerk oftho Court may delegate this
responsibility foMDW,and if dologafod MDWwill be responsible. This review shall bo
conducted at tho Central Intolli^onco Agency and shall occur, ataminimum, once every throe
months.

FOROFFICIALUSEONLY

34496

FOROFFICIALUSEONLY

8. Should the appellate court judges request access to any such Exhibits under RCM
1103A(b)(4), fhe Offtce oftho Clerk ofthe Court shaft notify tho applicable government
organization(s), and providoaby-namo list, induding dearance status, of those who will ho
reviewing the records. Only properly cleared appellate eourtjudges may review the records, and
any such review may only take place af tho Central Intolligonce Agency. No member of
Govommont Appellate Division or Defense Appellate Division shall have access to any such
Exhibits underthis storage plan. Tho Oftice oftho Clerk oftho Court is responsible fbr ensuring
tho appellate eourtjudges have and maintain proper security doarancos, and are properly readon.
9. The Exhibits are being stored solely fbrthe appellate record. Once tho appellate process, if
any,condudes, the Offtce of tho Clerk offhe Court shall notify tho Offtce of tho General
Counsel fbr each govommont organization and coordinate y^ifh those organizations to ensure
such material is properly discarded.
SoORDEREDthis26thday ofFebmary 2013.

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

FOR OFFICIAL USE ONLY

34497

Withheld pursuant to (b)(6)

Appellate Exhibit 501
Enclosure 1
has been entered into
the record as a CD/DVD
and will be maintained
with the original
Record of Trial

34498

Appellate Exhibit 501
Enclosure 2, Tab 2
6 pages
classified
"SECRET"
ordered sealed for Reason 2
Military Judge's Seal Order
dated 20 August 2013
stored in the classified
supplement to the original
Record of Trial

34499

Appellate Exhibit 501
Enclosure 3^ Tab3
32 pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34500

Appellate Exhibit 501
Enclosure^^Tab^
102 pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34501

Appellate Exhibit 501
Enclosure5^Tab5
55 pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34502

Appellate Exhibit 501
Enclosure ^^Tab^
l^pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34503

Appellate Exhibit 501
Enclosure^^Tab^
1^0 pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34504

Appellate Exhibit 501
Enclosure ^^Tab^
3pages
classified
"CO^E^l^E^T^AE"
ordered sealed for Reasons
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34505

Appellate Exhibit 501
Enclosure^^Tab^
5^5 pages
^olumesl^l2
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34506

UNITED STATESOF AMERICA
Prosecution Notice to the Court of
Defense'sNotification Pursuantto
Military RuleofEvidence505(h)
Manning, BradleyE.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

1March2013

On 22 Febmary 2013,tho defense completed ifs notice ofintent to disclose dassifted
infbrmation in the above-capfionod court-martial pursuantto Military Rule ofEvidence (MRE)
505(h). On 28 Febmary 2013, tho parties met to discuss, and resolve, any issues relating to this
defense ftling.
In regard tothe defense notice, the prosecution makes the fbllowing assumptions: tho
defense intends to share any documents that tho govonunont intends to share y^ifh tho relevant
witnesses, induding charged documents, audit logs, and fbrensic reports.
As offhe date offhis ftling, tho only outstanding issues are as fbllows:
1. Tho United Statos requests greater spedftdty y^ith respect to what dassifted
information tho defense intends to discuss with Mr. JofteryMotosNLT8March 2013.
2. Tho United Statos requests greater spedftdty with respect to what dassifted
infbrmation the defense intends to discuss with Mr. James McCar1NLT8March 2013.
3. Tho United Statos requests notice of which y^itnossos, if any,tho defense intends to
discuss tho damage assessment prepared hy the Offtco oftho Nafional Countorintolligonce
Exocutiye(ONCIX). Tho defense requested tho opportunity to reviewthe damage assessment
again, and the United States agreed toassist the defense in schodulingafime to reviewthe
ONCIX damage assessmenL The defense will then submitasupplomontal notice outlining
which portions ofthe ONCIX damage assessmenL if^any,if intends to disclose at fhe courtmartial and y^th which witnesses NLT8March 2013.
4. The United Statos intends to process tho defensors MRE 505(h)nofico,datodI4
December 2012 in reference to use oftho Department ofState, Department ofDefonse, and
ONCIX damage assessments, but underthe agroomont that the defense is not seeking to share tho
original assessments with tho accused. Both parties agree to work togethertoward stipulations of
fad concoming tho contents oftho damage assessments, which would ho shared with tho aoousod
and ho used during triaL Tho United Statos is oonounontly working with the relevant equity
holders to obtain authorization fo use tho infbrmation orto asoortainy^hothor or not the United

APPELLATEEXHIBIT^^^
PAGEREFERENCED:
PAGE
OF
PAGES

34507

States y^ift need to invoke tho dassifted infbnnation privilege under MRE 505(c), in the ovont
tho parties carmot agree onasfipulation.

ASHDENFEIN
MAJ,JA
Trial Counsel
Icertify thaflsorvod or caused fo bo servedatme copy of tho above on Mr. David
Coombs, Civilian Defonse Counsel via olodronie mail, onlMarch 2013.

ASHDENFEIN
MAJ,JA
Trial Counsel

34508

UNITEDSTATESOF AMERICA

^

^.

^
^

Manning, BradleyE.
PFCU.S.Army,
HHC,U.S.ArmyGarrison,
JointBaseMyerHendersonHaU
FortMyer, Virginia 22211

^
)
)
)
)
)

Scheduling Order
CORRECTEDCOPY
IMarch2013

1. The Court is cunently scheduling Article 39(a)sessions with the fbllowing default schedule at
tho request oftho parties: fy^o weeks fbr parties to ftle motions; fwo weeks fbr parties to ftle
responses; ftve days fbr parties to ftlo replies; and one y^ook fbr fhe Court to review all pleadings
before the start oftho motions hearing. Tho time fbr ftling replies was added afterthe ftrst Artido
39(a) session on 15I6March2012bocauso tho Court rocoivod reply hriefs the day befbre thaf
session, the parties desire to continue to ftle replies, and tho Court requires time to considerthem.
2. Scheduling dates and suspense dates are sot fbrth boloy^. This schedule was coordinated with
theparties. Tho trial schedule will bo rovioy^od and updated as necessary at each scheduled
Artido 39(a) session.
a. Immediate Action (21February 2012 16March20I2)
b. Le^alMotions. excluding Evidentiary Issues (29 March 2012-26 April 2012)
e. Le^alMotionsdO May 2012

8June2012)

d. Interim PretrialMotions(2June2012-25June 2012)
e. PretrialMotions(7June2012 20July2012)
L

PretrialMotions(20July2012 30Au^ust2012)

g. PretrialMotions(24Au^ust2012 18 October 2012)
b. PretrialMotions (26 September 2012-2November 2012)
i.

PretrialMotions (19 October2012 12 December 2012)

j.

PretriaIMotions(16November2012 11 January2013)

k. PretrialMotionsdl January 2013 17January 2013)
I.

PretrialMotions(14January20I3 1March2013)

m. PretrialMotions (15 March2013 12 April2013)

^

APPELLATEEXHIBIT^^
PAGEREFERENCED:
PAGE
OF
F^^ES

34509

(A)
(B)
(C)
(D)

Filing:15March2013
Rosponso:29March2013
Reply:3April2013
Artide39(a):10 I2Apri12013

(1) Government List of all Classified Information it intends to RequestaClosed
Session(Grunden) (with more specificity)
(2) TargetedBriefonl8 U.S.C. 793(Reason to Believe)
(A)Fi1ing:29March2013
(3) TargetedBriefonInterplayofGrunden,MRE505,andRCM806
(A)Filing:29March2013
(4) Information on Past Cases withTrial Closures
(A)Filing:29Maroh2013
(5) Notice ofPotential Witness Stipulations
(A)Filing:3April2013
(6) Targeted GovernmentBriefonArticlel04(^^Givin^Intelli^ence^^)
(A) Fi1in^:29March2013
(B) Rosponso:3Apri12013^
n. PretrialMotions(22April2013 24May2013)
(A)
(B)
(C)
(D)

Filing: 22Apri12013
Rosponso:6May2013
Roply:11May2013
Artide39(a):21 24May2013

(1) Grunden Hearing for Defense Classified Information
(2) Completion ofSecurifyClearanceChecks for WitnessesandAccess Granted
(3) Government Notice of Alternatives of Classified Information in lieu of Closing
tbe Courtrooms
oom^
(A) Filing: 22April20I3
(4) MRE505(i)Litigation,ifany,basedonDefenseMRE505(b)FinalNotice,22
February 2013
^ The defense will notily the Court as soon as possible of whether or not they intend to filearesponse.
^ Altematives include, but are not limited to stipulations: use ofcode words or special names; use of screens,

disguises, and code names fbr classified witnesses: use ofelectronic imagery visible only to cleared trial participants
and not the public; the ^^silentwitness^^ rule; and syllabi or reference indexes.

34510

(5) Notice of Government Objections to Defense Use of Classified Information and
Government Proposed Alternatives to Defense Use of Classified Information
(6) Witness Stipulations Completed
(A)Filing:11May2013
0. TrialbyMJAlone(3June20I3 UTC)
TriaL3June2013 UTC
So Ordered this Ist day ofMarch2013.

^

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

34511

Appellate Exhibit 50^
2pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34512

Appellate Exhibit 505
31pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

Unmarked redactions were present when Army received this document. Information was redacted in accordance with (b)(1)(B)
34513

UNITEDSTATESOF AMERICA
Supplement to Prosecution Response
ToScheduling Order: 39a Session On
Closure and Motion to Close the
Courtroom forSpecifiedTestimony

y.

Manning, BradleyE.
PFCU.S.Army,
HHC, U.S.Army Garrison,
JointBaseMyerHendersonHaU
Fort Myer,Virginia 22211

Corrected Copy
15March2013

(U) The Court's Scheduling Order, dated 1 March 2013, requires the United States to
resubmit its List of all Classified Information it intends to Request a Closed Session (Grunden),
dated 1 February 2013 (hereinafter ''Grunden Filing"), to provide more specificity to the Court.
See AE 503. This filing supplements the prosecution's initial Grunden filing by removing
witnesses for which the prosecution determined other alternatives were viable in lieu of closing
the courtroom and providing greater specificity on the classified content of the witness testimony
for which the Government requested courtroom closure. See AE 479.
RELIEF SOUGHT
(U) The United States respectfully moves the Court to order courtroom closure to hear
the dassified testimony of the twenty-eight (28) witnesses outiined below in accordance with the
Government's original Grunden filing. See AE 479.

BURDEN OF PERSUASION AND BURDEN OF PROOF
(U)Theburdenofproofonany factual issue, the resolution of which is necessary to
decideamotion, shall be by preponderance of the evidence. RCM 905(c)(1). The burden of
persuasiononany factual issue, the resolution of which is necessary to decide a raotion, shall he
on the moving party. RCM 905(c)(2).
FAC^
(U) In this filing, the United States requests courtroora closure to take the dassified
portionsoftestimony from twenty-eight (28) of its 141 witnesses. .^^^ AE475, Approximately
seventy three (73) of these witnesses' testimony involves dassified information; however, the
United States will usealtemativesfortheraajority of prosecution witnesses in lieu of dosing the
courtroora.
AE444; AE479. In its previous C^^^^^^ filing, theUnitedStates
requesteddosureforthirfy seven(37)of its 141y^tnesses. ^^^AE479. TheUnitedStates
determined that there were viable altematives to courtroom closure for nine (9) additional
witnesses. Of the twenty eight (28) witnesses, sixteen (16) will be called during the merits
portion of the case and fourteen (14) witi be called during presentencing proceedings (two (2) are
being called during both meritsand presenteneingproeeedings^
1

APPELLATE EXHIBIT So6
PAGE REFERENCED
'
PAGE
_0F
PAGES

34514

WITNESSES/EVIDENCE
(U) The United States requests the Court consider the cited Appellate E^hibits(AE). In
particular,the United States directs the Court to the discussion of alternatives to closure outlined
in its original ^^^^^^^ filing. .5^^^AE479. The United States also requests the Court consider
the Information on Past Cases withTrial Closures and theTargeted Brief on Interplay of
^^^B^^^^, MRE 505 and RCM 806, both due to the Court on 29 March 2013, before raakinga
determination regarding closure.
LEGALAUTHORITY AND ARGUMENT
(U) Each of the alternatives described in the Govemment'soriginal^B^^^^^ filing will be
used to the greatest extent possible during the court-martiaL ^^^AE479. There are only four
(4)witnesses whose testimony require an entirely dosed session. For the remainder of the
witness testimony,the United States only requests closure for .^^^^^^^^^^^.^^^^.^^^^^^^y
^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ / ^ . ^ . ^ i ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ . For these portions ofthe witnesses'testimony,identifted by
witness bdow,no meaningful or effective alternative exists because of the complicated and
nuanced nature of the testimony. Attempting to use an alternative such asacode word or legend
would significantly increase the potential for inadvertent spillage of the classified inforraation at
issue or provide pieces of information thaL ^hencorabined with information available from
other sources,could forraadassifiedpicture(dassification by compilation).
(U) With this filing, the United States provides the Court more specific information on
which it can base courtroom closure findings. The inforraation articulated bdow is organized by
witness simply because the evidence will be elicited in oral forra. Following each witness name
appears the dassified subject raatter to which he/she will testify Pursuant to RCM 806(b)(2),
the description also offcrs(a)the reasoning behind this dassification in order to communicate
the "overriding interest" at risk ofprejudice; (b)an explanation as to why closure isaremedy
"no broader than necessary" to protect this interest; and, by reference to the practical limitations
described ^boye,(c)the reason other "alternatives" are inadequate. In addressing the overriding
interesL the United States has providedadassified proffer of the inforraation the witness will
address as w d l as an undassified identification of the overriding national security interest
pursuant to which this piece of inforraation is dassified.
1.

(U)BG(Ret)RobertCarr, Defense Intelligence Agency
a.

(U) Classified Information and Overriding Interest.

34515

(2) (U) This portion ofBG(Ret)Can'stestiraony relates to interests of
national security addressed in EO 13526, Section 1.4(a)(c)(d).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testimony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and, where necessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustremain free to describe the inforraation to
the parties and fact-finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless their content must be discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified,no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Einally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
2.

(U) Col Julian ChesnutL Defense Intelligence Agency
a.

(U) Classified Information and Overriding InteresL

34516

(2) (U) This portion ofColChesnutt'stestiraony relates to interests of
national security addressed in EO 13526, Section 1.4(a)(c)(d).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would therefore be no broader than
necessary to protect the dassified inforraation.
c. (U) Alternatives. As this testiraony will be offered orallyit is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fiilly explore the witness'sobservations and,wherenecessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced information requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as they may require. Should the witness require the use of any
dassified documents, they will be used under the SWR and/or projected by electronic displays,
unless their contentraustbe discussed or evaluated. As the witness'sparticipation is itself not
dassifted,no disguises or screens will be necessary to shield the witness'sidentityfromthe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^

34517

a.

(U) Classified Information and Overriding Interest.

(2) (U) This portion of testiraony relates to interests of national security
addressed in EO 13526, SectionL4(c).
b.

(U) Scope of Closure.

(2) (U) As the witness'sassociation with this proceeding, as well as the
subject matter of testiraony is dassified, the courtroora should be dosed for the entirety of this
indiyidual'stestiraony,induding the announceraent of the witness'sname.
c. (U) Alternatives. As this testiraony will be offered orally, it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testimony is necessary to fully explore the witness'sobservations and,whcrcneccssary,the basis
of the witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless their contentraustbe discussed or evaluated. Asthewitness'sparticipation associated
with his or her testimony and the witness'sactual testiraony is dassified, shielding the witness's
identity frora the public would not be usefuL No stipulations have been agreed upon for this
witness to date, although it isapossibility if both parties agree. Finally,for the reasons

34518

articulated above, declassification is not warranted. The inforraation at issue is currently
dassified and will be at the tirae of the trial, as harra could still occur asaresult of unauthorized
disdosure.
4.
(U) Ms. Elizabeth Dibble, Principal Deputy Assistant Secretary, Bureau of Near
Eastern Affairs, Departraent of State
a.

(U) Classified Information and Overriding InteresL

(2) (U) ThisportionofMs.Dibble'stestiraony relates to interestsofnational
security addressed in EO 13526, SectionL4(c)(d).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witness raust disclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified summary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
complicated explanation. As such, the witness raust reraain free to describe the inforraation to
the parties and fact finder as they raay require. Should the witness require the use of an^
dassified docuraents, they will be used under the SWR and/or projected b^ electronic displays.

34519

unless their contentraust be discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified,no disguises or screens will be necessary to shield the witness'sidentity frora the
public. No stipulations have been agreed upon for this witness to date,although it isapossibility
if both parties agree. Finalty,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harm could
still occur asaresult of unauthorized disdosure.
(U) John Doe, Departraent of Defense
(U) Court closure inforraation for this witness is listed in AE 477.
(U) RADM I^evinDonegan, Director, Naval Warfare Integration, Pentagon
a.

(U) Classified Information and Overriding InteresL

(2) (U) This portion ofRADMDonegan'stestimony relates to interests of
national security addressed in EO 13526,SectionL4(a)(c)(d).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witness raust disclose dassified inforraation. The closure would therefore be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will he offered ora1ty,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis

7

34520

of the witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
complicated explanation. As such, the witness must remain free to describe the information to
the parties and fact-finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by dectronic displays,
unless their contentraustbe discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified, no disguises or screens will be necessary to shield the witness'sidentity frora the
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above,declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
7. (U)Mr.JohnFedey,Prindpal Deputy Assistant Secretary.Bureau ofWestern
Heraisphere Affairs, Departraent ofState
a.

(U) Classified Information and Overriding InteresL

34521

(3) (U) This portion ofMr. Feeley'stestiraony relates to interests of national
securityaddressedinEO 13526,Section 1.4(b)(d).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c. (U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis
of the witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as theyraayrequire. Should the witness require the use of an^
dassified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless their contentraustbe discussed or evaluated. Asthewitness'sparticipation is itselfnot
classifted, no disguises or screens will be necessary to shield the witness'sidentity from the
public. No stipulations have been agreed upon for this witness to date,although it isapossibility
ifhoth parties agree. Finally,for the reasons articulated above,declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
8.

(U) AMB PatrickF.l^ennedy,Under Secretary for ManagemenL Departraent ofState
a.

(U) Classified Information and Overriding InteresL

(1) (U) AMB PatrickF.Rennedy will testify at sentencing about
coraproraised data and the impact to the Departraent of State. AMB l^ennedy will testify about
the steps the Departraent took to respond to the coraproraise, the irapact of that coraproraise on
theraanagementof the Departraent and its diploraaticraission,the nexus between the
inforraation gathered by the Departraent and the forraulationofUSGpolicy,as well as lost
opportunities asaresuh of the leaks. The Governmentraayrequest court closure with respect to

34522

certain testiraony by AMB Kennedy regarding the irapact of the coraproraise on the raanageraent
of the Departraent and its diploraatic raission, as w d l as certain testiraony regarding the ne^us
between the inforraation gathered by the Departraent and the forraulationofUSG policy,based
on the overriding interest in protecting dassified inforraation and the lack of alternatives.
Further,AMBl^ennedy'stestiraony raay expand upon the dassified testiraony of other
Departraent of State witnesses and discuss specific exaraples of daraage in the dassified draft
damage assessmenL If necessary, the Government will request court closure to address the
specific testiraony of other Department witnesses and/or the dassified draft daraage assessmenL
based on the same overriding interest in protecting dassified inforraation and lack of
alternatives. This inforraation is properly dassified up to the SECRET level according to the
Departraent ofState Classification Guide (DSCGll-01,dated May 2011). Unauthorized
disdosure of this inforraation could cause serious daraage to national security. Therefore,
discussion of this inforraation in open session would underraine national security interests.
(2) (U) This portion of AMB ^ennedy'stestiraony relates to interests of
national security addressed in EO 13526, Section 1.4(c)(d).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witness raust disclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis
of the witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witness raust reraain free to describe the inforraation to
the parties and fact finder as the^ raay require. Should the witness require the use of an^
dassified docuraents,theywill be used under the SWR and/or projected by electronic displays,
unless their content raust be discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified, no disguises or screens will be necessary to shield the witness'sidentity frora the
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
9.

(U)Mr.JohnRirchhofer,Defense Intelligence Agency
a.

(U) Classified Information and Overriding Interest.

10

34523

(2) (U) This portion ofMr. RirchhofeBs testiraony relates to interests of
national security addressed in EO 13526, Section 1.4(a)(d).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally, it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,where necessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact-finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless their content must be discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified, no disguises or screens will be necessary to shield the witness'sidentity frora the
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
10.

(U) AMB Michael Kozak, Departraent of State
a.

(U) Classified Information and Overriding Interest.

(1) ^ H ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ H
11

34524

(2) (U)ThisportionofAMBKozak'stestiraony relates to interestsofnational
security addressed in EO 13526, SectionL4(d).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c. (U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,where necessary the basis
of the witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless their contentraustbe discussed or evaluated. As the witness'sparticipation is itself not
classifted, no disguises or screens will be necessaty to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
IL

^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^
a.

(U) Classified Information and Overriding InteresL

12

34525

(2) (U) This portion of testiraony relates to interests of national security
addressedinEO 13526, Section 1.4(c).
b.

(U) Scope of Closure.

(2) (U) As the witness'sassociation with this proceeding, as well as the
subjectraatterof testimony is dassified, the courtroora should be dosed for the entirety of this
individual'stestiraony, including the announceraent of the witness'snarae.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,where necessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as theyraa^require. Should the witness require the use of any
dassified documents,theywill be used under the SWR and/or projected b^ electronic displays,
unless their contentraustbe discussed or evaluated. Asthewitness'sparticipation is itselfnot
classifted,no disguises or screens will be necessaty to shield the witness'sidentity frora the
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
ifhoth parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
12.

(U) Mr. Danny J.Lewis, Defense Intelligence Agency
a.

(U) Classified Information and Overriding Interest.
13

34526

(2) (U) This portion ofMr.Lewis'stestiraony relates to interests of national
security addressed in EO 13526, SectionL4(c).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witness must disclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. The dassified
testiraony is necessary to fully explore the witness'sobservations and,where necessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and factfinder as they mayrequire. Should the witness require the use of any
dassified documents, they will be used under the SWR and/or projected by electronic displays,
unless their content must be discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified,no disguises or screens will be necessary to shield the witness'sidentity from the
public. No stipulations have been agreed upon for this witness to date,although it isapossibility
ifboth parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The information at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresuh of unauthorized disdosure.
13.

(U)Mr.Randall MacRobbie.Defense Intelligence Agency
a.

(U) Classified Information and Overriding InteresL

34527

(2) (U) This portion ofMr.MacRobbie'stestiraony relates to interests of
national security addressedinEO 13526,Section 1.4(g).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,where necessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced information requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the information to
the parties and fact finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless their contentraust be discussed or evaluated. Asthe witness'sparticipation is itselfnot
dassifted, no disguises or screens will he necessary to shield the witness'sidentity from the
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
14.

(U) Mr JaracsMcCarL Joint IED Defeat Organization (JlEDDO).
a.

(U) Classified Information and Overriding InteresL

15

34528

(2) (U) This portion ofMr. McCarl'stestiraony relates to interests of national
security addressed in EO 13526, Sectionl.4(a)(g).
b.
(U) Scope of Closure. The Court would be dosed onty at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified summary or reduction to code is also untenable. Theclassified
testimony is necessary to fully explore the witness'sobservations and,where necessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced information requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact-finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected b^ electronic displays,
unless their contentraustbe discussed or evaluated. As the witness'sparticipation is itself not
classifted, no disguises or screens will be necessary to shield the witness'sidentity frora the
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
15

(U) MajGen RcnnethMcRenzie.USMCHO Staff
a.

(U) Classified Information and Overriding InteresL

16

34529

(2) (U) This portion ofMajGenMcKenzie'stestiraony relates to interests of
national security addressed in EO 13526, Section 1.4(a)(d).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testimony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as they may require. Should the witness require the use of any
classified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless their contentrausthc discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified, no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above,dedassification is not warranted.
The inforraation at issue is currentty dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
16.

(U)Mr.Jaraes Moore, Departraent of State
a.

(U) Classified Information and Overriding InteresL

34530

(2) (U) This portion of Mr.Moore'stestiraony relates to interests of national
security addressed in EO 13526, SectionL4(b)(d)
b. (U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would therefore be no broader than
necessary to protect the dassified inforraation.
c. (U) Alternatives. As this testiraony will be offered oralty,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,where necessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact-finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected b^ electronic displays,
unless their contentraustbe discussed or evaluated. Asthewitness'sparticipation is itselfnot
classified,no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harm could
still occur asaresult of unauthorized disdosure.
17

(U)MG Michad Nagata, Joint Staff the Pentagon
a.

(U) Classified Information and Overriding Interest.

18

34531

(2) (U) This portion ofMGNagata'stestiraony relates to interests of national
security addressed in EO 13526, SectionL4(a)(c)(d).
b.
(U) Scope of Closure. The Court would be dosed onty at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testimony is necessary to fully explore the witness'sobservations and,where necessary,the basis
of the witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
complicated explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and factfinder as they raayrcquire. Should the witness require the use of any
dassified documents, they will be used under the SWR and/or projected by electronic displays,
unless their contentraustbe discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassifted,no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently classified and will be at the tirae of the trial, as harm could
still occur asaresult of unauthorized disdosure.
18.

(U) SSA Alexander Otte,Federal Bureau oflnvestigation
a.

(U) Classified Information and Overriding Interest.

(2) (U) This portion of testiraony relates to interests of national security
addressedinEO 13526, SectionL4(a)(c)
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than

34532

necessary to protect the dassified inforraation.
c. (U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced information requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless thdr contentraustbe discussed or evaluated. Asthewitness'sparticipation is itselfnot
classifted, no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
19.

(U) AMB David Pearce, Departraent of State
a.

(U) Classified Information and Overriding Interest.

(2)

(U) This portion of testiraony relates to interests of national security
20

34533

addressedinEO 13526, Section 1.4(b)(d).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose classified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified information.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An unclassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and factfinder as they mayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless their content must be discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified,no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
20.

(U)Mr.Adara Pearson, Joint IED Defeat Organization (JlEDDO)
a.

(U) Classified Information and Overriding InteresL

(2) (U) This portion ofMr. Pearson'stestiraony relates to interests of national
securityaddressedinEO 13526, Section 1.4(c)and(g).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered oralty,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. The dassified
21

34534

testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd er^planation. As such, the witness must remain free to describe the inforraation to
the parties and fact finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by dcctronic displays,
unless thdr content must be discussed or evaluated. Asthewitness'sparticipation is itself not
dassified,no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
ifboth parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currentty dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
2L

(U)Mr.H. Dean Pittraan, Departraent ofState
a.

(U) Classified Information and Overriding InteresL

(2) (U) This portion of testiraony relates to interests of national security
addressedinEO 13526, Section 1.4(b)(d).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.

(U) Alternatives. As this testiraony will be offered oralty,it is not capable of
22

34535

redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,whcre necessary,the basis
of the witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
complicated explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected b^ electronic displays,
unless thdr content must be discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified, no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above,declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
22.

a.

(U) Classified Information and Overriding InteresL

(2) (U) This portion of testiraony relates to interests of national security
addressed in EO 13526, Section 1.4(c)(g).
b.

Scope of Closure.

(2) (U) As the witness'sassociation with this proceeding, as well as the
subject matter of testiraony is dassified, the courtroora should be dosed for the entirety of this
23

34536

indiyidual'stestiraony,induding the announceraent ofthe y^itness'snarae.
c.
(U) Alternatives. As this testimony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,thc basis
of the witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
complicated explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless thdr contentraustbe discussed or evaluated. Asthewitness'sparticipation is itselfnot
classified,no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
23.

(U) AMB Stephen Seche, Departraent ofState
a.

(U) Classified Information and Overriding InteresL

24

34537

(2) (U) This portion of testiraony relates to interests of national security
addressed in EO 13526, Section 1.4(a)(b)(d).
b. (U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered oralty,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fulty explore the witness'sobservations and,wherenecessary,the basis
of the witness'sopinions, and the witness will be testifying to nuanced information requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact-finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless thdr contentraustbe discussed or evaluated. Asthewitness'sparticipation is itselfnot
classifted, no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Finally, for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
stiti occur asaresuh of unauthorized disdosure.
24

(U^SA David Shaver.USDepartraentofTreasury
a.

(U) Classified Information and Overriding InteresL

(2)

(U) This portion of testiraony relates to interests of national security
25

34538

addressed in EO 13526, SectionL4(c)(g).
b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact-finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless thdr contentraustbe discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified, no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date,although it isapossibility
if both parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
25.

(U) Ms. CathrynStrobL Central Intelligence Agency
a.

(U) Classified Information and Overriding InteresL

(2) (U) This portion of testiraony relates to interests of national security
addressed in EO 13526, Section 1.4(c)(g).
26

34539

b.
(U) Scope of Closure. The Court would be dosed only at the point which the
witnessraustdisclose classified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced information requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they will be used under the SWR and/or projected by dcctronic displays,
unless thdr contentraustbe discussed or evaluated. As the witness'sparticipation is itself not
dassifted, no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date,although it isapossibility
ifboth parties agree. Fina11y,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
26.

(U) AMB DonYaraaraoto, Departraent of State
a.

(U) Classified Information and Overriding Interest.

27

34540

(2) (U) This portion of testiraony relates to interests of national security
addressed in EO 13526, Section 1.4(b)(d).
b.
(U) Scope of Closure. The Court would be dosed onty at the point which the
witnessraustdisclose dassified inforraation. The closure would therefore be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as theyraayrequire. Should the witness require the use of any
classified docuraents, they will be used under the SWR and/or projected by electronic displays,
unless thdr contentraustbe discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified,no disguises or screens will be necessary to shield the witness'sidentity from the
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
ifboth parties agree. Finally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
27.

(U) AMB MarieYovanovitch,Departraent of State
a.

(U) Classified Information and Overriding InteresL

28

34541

(2) (U) This portion of testiraony relates to interests of national security
addressedinEO 13526, SectionL4(a)(b)(d)(e).
b.
(U) Scope of Closure. The Court would be dosed onty at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fully explore the witness'sobservations and,wherenecessary,the basis
of the witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustremain free to describe the inforraation to
the parties and fact finder as they may require. Should the witness require the use of any
dassified documents, they will be used under the SWR and/or projected by electronic displays,
unless their contentraustbe discussed or evaluated. Asthewitness'sparticipation is itselfnot
dassified,no disguises or screens will be necessary to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
if both parties agree. Einally,for the reasons articulated above, declassification is not warranted.
The inforraation at issue is currently dassified and will be at the tirae of the trial, as harra could
still occur asaresult of unauthorized disdosure.
28

(U) Mr Joseph Yun, Departraent of State
a.

(U) Classified Information and Overriding Interest.
^1^
29

34542

(2) (U) This portion of testiraony relates to interests of national security
addressed in EO 13526, SectionL4(b)(d).
b.
(U) Scope of Closure. The Court would be dosed onty at the point which the
witnessraustdisclose dassified inforraation. The closure would, therefore, be no broader than
necessary to protect the dassified inforraation.
c.
(U) Alternatives. As this testiraony will be offered orally,it is not capable of
redaction. An undassified suraraary or reduction to code is also untenable. Theclassified
testiraony is necessary to fulty explore the witness'sobservations and,wherenecessary,the basis
ofthe witness'sopinions, and the witness will be testifying to nuanced inforraation requiring
coraplicatcd explanation. As such, the witnessraustreraain free to describe the inforraation to
the parties and fact finder as theyraayrequire. Should the witness require the use of any
dassified docuraents, they y^ill be used under the SWR and/or projected by electronic displays,
unless their contentraustbe discussed or evaluated. As the witness'sparticipation is itself not
dassifted, no disguises or screens will be necessaty to shield the witness'sidentityfrorathe
public. No stipulations have been agreed upon for this witness to date, although it isapossibility
ifboth parties agree. Finally,for the reasons articulated above, declassification is not warranted.

34543

The infbrmation at issue is currently classifted and will be attfietune ofthe trial, as harm could
still occur asaresuh of unautiiorized disclosure.
CONCLUSION
(U) The United States respectfully requests fhe Court order courtroora closure to hearthe
dassifted testimony oftho twenty-nine (28) yvitnesses as outlined above.

/ m D E A N MORROW
XZPT, JA
Trial Counsel
(U) I certify that I served or caused to be served a tme copy of the above, via SIPRNET
email, to Mr. David Coombs, Civilian Defense Counsel,tfioughthe defense security experts on
15 March 2013.

iN MORROW
JA
Trial Counsd
:PT,

31

34544

UNITED STATES OF AMERICA
Government Targeted Brief
on Interplay ofMRE 505,
RCM 806, and Grunden
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson HaU
Fort Myer, Virgmia 22211

15 March 2013

FACTS
On 1 March 2013, the Court ordered the United States to submit a targeted brief outlining
tho interplay between United States v. Grunden, 2 M.J. 116 (C.M.A. 1977), Military Rule of
Evidence (MRE) 505, and Rule for Courts-Martial (RCM) 806. See Appellate Exhibit (AE) 503.
WITNESSES/EVIDENCE
The United States requests the Court consider the National Security and Intelligence Law
Division (known as Code 30), Offtce of tho Judge Advocate General, Department of the Navy's
Primer for Litigating Classifted Information Cases (hereinafter "Code 30 Primer"). The United
States specifically directs the Court to the enclosed Chapters 9 and 10. The United States adopts
tho explanation ofMRE 505 and RCM 806 laid out in Chapters 9 and 10 and requests the Court
focus its attention, in particular, on Chapter 10, Section A.
LEGAL AUTHORITY
MRE 505 and RCM 806 operate independently of one another, although both mies
address the use of classifted information during courts-martial. MRE 505 is primarily concemed
with the use and discovery of dassifted information by the accused. RCM 806, on the other
hand, codiftes the holding in Grunden by recognizing the accused's Sixth Amendment right to a
public trial and tho need for limited exceptions to that right. See RCM 806, Analysis. RCM
806(b)(2) dictates the circumstances under which the Court can dose the court-martial to protect
classifted information.
L

MRE 505
A.

General Discussion

MRE 505 is a mle of privilege and procedure. MRE 505(a) outlines the general mle,
MRE 505(b) deftnes key terms, and MRE 505(c) idenfiftes who may claim the dassifted
information privilege. MRE 505 then proceeds to discuss in phases fhe mies goveming the
discovery and use of classifted information at trial. Phase 1 is MRE 505(d)-(i), which discusses
pretrial discovery of classifted information and contemplates extensive pretrial litigation in order
to protect classifted information from unnecessary disclosure, both in discovery and during trial.

APPELLATE EXHIBIT So?
PAGE REFERENCED:
PAGE
OF
PAGES

34545

Phase 2 is MRE 505(j)-(k), which addresses the presentation and handling of classifted
information at trial, as well as security procedures for potential appellate review.
B.

Phase 1: Pretrial Discovery and Litigation

In addition to the more in-depth analysis provided by Chapters 9 and 10 of the Code 30
Primer (see enclosures 2 and 3), it is usofiil to highlight the difference between MRE 505(i) and
MRE 505(j). The procedure or "in camera" proceeding described in MRE 505(i) is used, in most
cases, to determine whether the Govemment can preclude the accused from disclosing dassifted
information during the court-martial. See MRE 505(i)(4)(A). In other words, the MRE 505(i)
hearing is primarily an evidentiary procedure that leads the Court to a determination of what
classifted evidence sought to be disclosed by the accused is relevant and necessary to an olomont
of the offense or a legally cognizable defense. The MRE 505(i) hearing also contemplates tho
consideration of constitutionally acceptable altematives to classifted information, which would
still afford tho accused a fair trial. See MRE 505(i)(4)(D).
C.

Phase 2: Presentation of Classifted Information during the Court-Martial

MRE 505(j) contemplates the appropriate means of presenting classifted information
after determinations have been made regarding ifs use under MRE 505(i). See MRE 505(j).
Speciftcally, MRE 505(j)(5) permits the militaryjudge to close the courtroom for the
presentation of ovidonco that discloses classifted information—thus deftning classifted
infonnation as an "overriding interest." See MRE 505(j)(5).
II.

RCM 806 and Grunden

Once classified information is determined to be relevant, RCM 806(b)(2) "recognizes and
codiftes the basic principle thaf, with limited exceptions, court-martial proceedings will bo open
to the public." RCM 806, Analysis at A21-48. The accused, under tho Sixth Amendment and
Grunden, has arightfo a public trial. See id. (citing United States v. Brown, 22 C.M.R. 41
(C.M.A. 1956); UnitedStates v. Zimmerman, 19 C.M.R. 806 (A.F.B.R. 1955)). The public also
has arightto attend criminal trials under tho First Amendment. See id. (citing Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). To justify the exclusion of the public from a
court-martial, a militaryjudge must ftnd that "there is a substantial probability that an overriding
interest will bo prejudiced if the proceedings remain open." RCM 806(b)(2). Then, the military
judge must ensure that "closure is no broader than necessary to protect tho overriding interest"
and that "reasonable altematives to closure were considered and found inadequate." Id. In short,
RCM 806(b)(2), like MRE 505(j), is concemed with the presentation of dassifted information
during the court-martial. It takes no position on whether classifted information should be part of
tho court-martial proceeding in the ftrst place.
III.

Interplay between MRE 505 and RCM 806 {Grunden)

While MRE 505 and RCM 806 are somewhat related in practice, there is no basis for the
defense proposition that the procedures under MRE 505(i) should bo utilized for the RCM
806(b)(2) or Grunden hearing. As the Code 30 Primer indicates, had tho drafters intended that

34546

the two mies would share the same procedures under MRE 505(i), there would have boon a
cross-reference to (i) in either MRE 505(j)(5) or the Analysis. Accordingly, the difference
between MRE 505 and RCM 806 is dear. The primary purpose of the in camera proceeding
under MRE 505(i) is to litigate the Government's assertion of privilege over classifted
information. RCM 806(b)(2) is the next step and assumes that any litigation over the use of
classifted information by the accused has been completed. For example, the Government may
have lost tho MRE 505(i) litigation and must authorize disdosure of classifted information by tho
accused or face sanctions; (2) the Govemment may not have invoked the classifted information
privilege; or (3) the Govemment may be seeking to use dassifted information during its case-inchief.
CONCLUSION
The MRE 505(i) and RCM 806 (Grunden) matters before this Court during the last
Article 39(a) session relied on distinct authorities and requested different relief. Thoy should,
therefore, bo kept separate. Through its Grunden ftling, the United Statos seeks the Court's
approval to close the courtroom during trial when classifted information is to bo disclosed by tho
United States and no altomativos are available. While the defense certainly has a limited role to
play during the MRE 505(i) process - as articulated by the mlo itself - the Govemment's
Grunden hearing is used only to determine what dassifted information will actually need to bo
discussed in testimony, requiring exclusion of tho public IAW MRE 505(j)(5) and RCM
806(b)(2).

LDt:
f\y\pu^H^

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

I certify that I served or caused to be served a tme copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 13 March 2013.

3 Enclosures
1. Code 30, Chapter 1
2. Code 30, Chapter 9
3. Code 30, Chapter 10

^^^rfeSlioRfe^
CPT, JA
Trial Counsd

34547

UNITED STATESOF AMERICA

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

Government Targeted Brief
on Interplay of MRE 505,
RCM 806, and Grunden
Enclosure 1
15 March 2013

34548

FOt^ OFFICIAL Ll^^O^L^

CHAPTERI
Litigation of Classified Information Cases

An Overview

''What has pu^^led us before seems less mysterious, and
the crooked paths look straighter as we approach the
end."
Jean Paul Richter
German novelist and humorisLl763-1^25

The goal ofthis Primer is to provide all judge advocates withabasic understanding ofthe
evidentiary mies, courtroom closure process, and coordination principles applicable to all
investigations and courts martial involving dassifted information. This is especially
important in today'soperationally oriented environment that has resulted in an increase in
the number of courts martial involving dassifted information.
From an evidentiary standpoinL Military Rule ofEvidence ( M R E ) 505 is the center of
gravity fbr any case with dassifted infbrmation issues. M.R.E. 505 is primarily an
evidentiary procedure that focuses on what dassifted infbrmation is relevant and
necessary,and, if relevant and necessary,what forra of discovery is most appropriate. It
is the fundamental building block fbr the pieces of the court martial puzzle that involve
dassiftedinfbrmation. M.R.E. 505 isavery unique mle that adds an additional layer of
complexity to the courtmartiaL It providesahost ofissues and opportunities forboth
trial and defense counsd to explore and litigate in pursuant oftheir dient'sinterests.
Judge advocates must ftilly appreciate the quantity and quality of relevant dassifted
infbrmation as early in fhe court martial process as possible.
While M.R.E. 505 provides fbr dosing to the public the hearing or court martial as one of
the procedural safeguards in the mle fbr protecting dassifted infbrmation. Rule fbr Court
Martial (R.C.M.)806 codiftes the procedures fbund in^.i^.iBG^^^^^,2M.J.116
(C.M.A. 1977) fbr dosingahearing or courtroom. Ifdosure is an issue, either at an
Artide 32 investigation or trial, R.C.M.806(b)(2)proyides the resolution framework. In
any case involving dassifted infbrmation, judge advocates, especially staffjudge
advocates and trial counsd, should start thinking about closure issues early in the
process.
The Priraer'schapters on M.R.E.505 and courtroom closure process, Chapters9andl0
respectiydy,reprcsent the core chapters of the Primer. Agood understanding of the
issues discussed in these tivo chapters, and perhaps most importantlythe interplay
between M.R.E.505 and R.C.M. 806, represent the foundation ofajudge advocate's
successful involvement with any case with dassifted information issues. Judge advocates
should view M.R.E. 505 asaftrst step that determines whaL if any,dassifted infbrmation
is relevant and necessary to any given case. IfM.R.E. 505 determines that certain
dassifted infbrmation is relevant and necessary,then the litigants must address courtroom
It
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34549

FOt^ OFFICIAL L l ^ F O ^ L ^

closure issues. These two issues are the two primary differences hetweenacourt-raartial
with dassifted infbrmation andacourt-raartial without dassifted infbrmation. Judge
advocates should fully understand the different issues at stake in M.R.E. 505 and R.C.M.
806 and appreciate important overlapping issues, most importantly, the requirement to
consider altematives to dassifted infbrmation, e.g.,redactions, substitutions,"and
stipulations.
Finally,these types of cases include unique coordination requireraents. The intelligence
community (IC) has equities inraostcourts martial involving dassifted information.
Whoever owns the dassifted information will have considerable interest in the case.
Coordination with IC membersraustoccur at all stages ofthe process: investigation,
pretrial, trial, and post triaL Judge advocates involved in dassifted infbrmation cases
should view this coordination requireraent as signiftcant as the host oflaws and
regulations associated with the handling of dassifted infbrmation. Neglecting either
requirement may not only raise questions regarding professional competence, but also
adversely affecL perhaps fatally,the courtmartial process. Likesecurityrdated
requirements, IC coordination must start uponacase'sinception and continue tratil the
conclusion ofthe courtmartial process.
In the ideal world, all judge advocates would become intimately familiar with the issues
and answers fbund in this Primer. It is muchraoreprobable thatjudge advocates will
take this Primer"off the shells'y^hen ftrst confronted withadassifted infbrmation issue.
In either case. Code 30 hopes that the Primerwillserveasigniftcant purpose and prompt
additional interaction with Code 30 persorraeL U1timatdy,the intent ofthe Priraer is to
affbrdjudge advocates the necessary foundation to both zealously represent their clients
and protect the interests ofnational security

t^
FOR OFFICIAL t^^FO^LY

34550

UNITEDSTATESOF AMERICA

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

Government Targeted Brief
on Interplay of MRE 505,
RCM 806, and Grunden
Enclosure 2
15 March 2013

34551

FOR OFFICIAL t^^FO^L^

CHAPTERS
Military Rule ofEvidence 505
Military RuleofEyidence(M.R.E.) 505 was created prior to the promulgation ofthe
Rules fbr CourtsMartial (R.C.M.)inl984. Thus, extensive procedural requirements
^ere included in M.R.E. 505 to aid with the application ofthe dassifted infbrmation
privilegeBTheactual text ofM.R.E 505 is drawnfroraHR 4745, 96th Cong,lst Sess
(1979), the House version ofthe Classifted Infbrraation Procedures Act(CIPA),which
was the version that did notraakeit into law. It is important to understand M.R.E.505's
genesis when considering the intent and operation ofvarious sections ofthe Rule,
cspedallythe procedure under 505(i). Most importantly,the procedural portions are
effective and in operation even ifthere is no assertion ofthe dassifted infbrmation
privilege.
The procedural overlay ofM.R.E.505 is complex and not easyto understand. Thisis
especially tme when you consider the interplay ofthe various sections ofM.R.E. 505
with the later-promulgated Rules fbr Courts Martial (R.C.M.)(espedally the provisions
ondiscoyery,Artide32 investigations, exculpatory evidence, and courtroom closure).
Closing the courtroora is the subject ofthe next chapter. The remainder ofthis chapter
will explore and explain the operation ofthe dassifted infbrmation privilege contained in
M.R.E.505 on the discoveryand useof dassifted evidence in Artide 32 investigations
and trials.
A. Classified Discovery. One ofthe most important and critical practice differences in cases
involving dassifted infbrraation is that trial counsd cannot permit "open ftle" discovery. The
government cannot simply provide the defense with copies of, or access to, all the dassifted
infbrmation in the investigative ftle in order to avoid litigation over discovery. InfacLevena
cursory readrag ofM.R.E.505 reveals that the mle explicitly contemplates extensive litigation
over dassifted infbrraation discovery.
Certainly, one ofthe restrictions on "openftle"discoyeryis the requirement that the recipient
hayea"needtoknow" the classified infbrmation. The fact remains, though, that "needto
know" is an ill-deftned, broad concepL The courts, hoy^cvcr, have provided guidance by
analogizing the govemment'sprivilege over dassifted information with its privilege over the
identities ofinfbrraants set fbrth in^^^^^^^^^.^^^^^^^^^^^.^, 353 U.S.53,77 S.CL 623,IL. Ed.
2d 629(1957) Thc^^^^^^^standardhas been codiftedinMRE 505(i)(4)(B)histead,byfar
the biggest discovery restriction in dassifted infbrmation cases is the practical issue ofthe need
to get the permission ofthe originator/owner ofthe infbrmation prior to disclosing that
infbrmation to the defense.^ As has been stated before in this Priraer, this is most critical in
' The Military Rules ofEvidence were drafted in 1979-80. For those interested in more information on the
development and promulgation of the Military Rules ofEvidence, the best source is an article by Professor Fredric I .
Lederer, THE MILITARY RULES OF EVIDENCE: ORIGINS AND JUDICIAL IMPLEMENTATION, 130 Mil L.
Rev. 5, Fall 1990.
" See Chapter 2 for a discussion ofhow Executive Order 13526 § 4.1('i)(l) may alter the need to obtain originating
agency's consent for documents created after 27 June 2010.
9-1
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34552

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cases involving Sensitive Compartmented Informationfromnationallevd members of the
Intelligence Community,spcciftcally the National SecurityAgency and the Central Intelligence
Agency.
Under M.R.E.505(d), the convening authority is in control ofthe discovery process befbre
refenaL W^ile the investigating offtcer may at times have to apply the provisions ofM.R.E 505
during the courseofthe investigation, the investigating offtcer has limited ability to control
discovery since the investigating offtcer does not have the ftill authorityvestedinamilitaty
judge after refenaL After refenal, the militaryjudge is responsible fbr overseeing the hulk ofthe
M.R.E. 505 procedures that relate to discovery and use ofthe dassifted information, as well as
any assertion ofprivilege to prevent disdosure ofinfbrmation. When the case is befbre fhe
military judge, the defense can object to the convening authority'sprior handling of discovery.^
Becauseofthe length oftime needed to coraplete classiftcation revieyys and the requireraent to
get Original Classiftcation Authorify(OCA) approval befbre providing dassifted discovery,
convening authorities should consider not charging or dismissing charges that would
unnecessarily bring dassifted information into the case. Further, trial counsd should carefully
select caseinchief evidence to avoid having to introduce orprovide discovery of any more
dassifted infbnnation than is necessary to meet the government's burden. While every trial
counsd wants to present overwhelming evidence on every charge and speciftcation, trial counsd
must resist that urge with respect to dassifted evidence.
B. Actions Prior to Disdosure to Defense. Wheneverpossible. befbre bednnin^ dassifted
discoyery,trial counsd .^/^^^^/^ensure that
^ The classiftcation review offhe material to be produced has been completed;
^ Improperly marked documents have been coneded with proper markings; and

^^hile M.R.E.505(d) does provide that'^l^a^ny objection by the accused to the withholding ofinft^rmation or to the
conditions of disclosure shall be raised throughamotion for appropriate reliefatapretriaIsession,"counseI should
be aware that the sotne objections may be made and resolved at the Article 32 by the convening authority and, ifthe
convening authority delegates the authority to the investigating offtcer, the investigating offtcer. LikeM.R.E.412,
M.R.E.505 speaks ofthe militaryjudge as the decisionmaker. Despite that wording, R.C.M.405(i) provides that
rules of privilege in SectionVo^the M.C.M.,like M.R.E.412,apply to the Article 32. The obvious tension
between rules that seem to provideft^rapplication by the investigating offtcer despite the fact that the investigating
otftcer lacks any real attthority to invoke the sanctions ofamilitary judge has not been resolved. Ataminimum, the
convening authority^sletter appointing the investigating otftcer should provide the investigating ofttcer with the
authority to perform those ta^ks that clearly impact the conduct ofthe Article 32,such as issuance ot^aprotective
order, ordering compliance with the notice provisions ot^M.R.E. 505(h), andft^llowingthe procedures within M.R.E.
505(i) when the govemment has made the classifted material available to the hearing, wherethe original
classiftcation authority or the convening authority do not make classifted inft^rmation available, there is little the
investigating offtcer can do. A^ with litigation over the failure of an investigating offtcer to employ M.R.E4I2
correctly at an Article 32,the likely route to seekaremedy for failure to provide classifted information at the Article
32 where required would beamotion under R.C.M.906(b)(3)to reopen the Article 32, or order the disclosure to the
defense for use at trial. Note that an objection by the govemment on grounds of privilege, rather thanasimple
withholding of the documents bythe convening authority under M.R.E. 505(d)(5), will result in an ^^^^^^^^8
proceeding under M.R.E. 505(i).
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^

Classifted information no longer wananting protection in the interests ofnational
security has been dedassifted.

In other words, trial counsd must be sure that the dassifted document is properly dassifted
befbre providing discovery ofany dassifted documenL While the proper classiftcation ofa
document may be inelevant to the dements of an offense, it is necessary fbr invoking the
protections ofM.R.E. 505 in order to avoid needless pretrial litigation overwhetheraparticular
dassifted document is subject to the privilege because it is not marked properly.
WTiile the formal protections ofM.R.E.505 privilege assertion are not yet available at this
juncture, i.e.,pre-refenal, the convening authority can, through the protective order(see Section
D, bdow), permit discovery ofinfbrmation with OCA approvaL While the classiftcation ofthe
infbrmation may later be modifted asaresult ofthe classiftcation review,the convening
authority,again with OCA approval, can permit discoverywith presumptive classiftcation
markings that will ensure protection ofthe possibly dassifted infbrmation.

Practice Pointer. It is possible fbr multiple versions ofthe same dassifted infrormation
to be present inacase^ Additionally, different OCAs mayview the classilication ofthe same
docuraent(containing informationfromboth OCAs)differently. The trial counsd must resolve
these confticts with the OCAs priorto using the infbrmation in anyproceeding.
One suggestion is to limit discoyory,at least at the outseLtoaviewinginasccure space, rather
than allowing physical custody by the defense inaproperly secure storage container. While this
is notaprderred practice, in situations in y^hich pretrial time is short, this yyill serve the dual
purpose ofensuring security over the dassifted infbrmation and facilitating substitution ofthe
properlymarked infbrraation when the classification review is completed. These measures must
not be unduly restrictive of the dcfense'srights of access. Incorporation of the discovery "mlcs
of engagement" in the convening authority'sprotective order is highly encouraged(see Section
Dbdow).

C. Pre-Referral Discovery During the early stages ofadassifted infbrmation case, the
convening atithority controls the pace and amotmt ofclassifted information tttmed over in

discovery. Eflectiydy,it is the trial counsd who manages this process and coordinates these
effbrts with the OCAs. Code 30 is always available to assist coordination efforts with
intelligence agencies. It is not unusual fbr an extensive amount of classifted infbnnation to he
tumed overto the defense in orderto properly prepare fbrthe Artide 32 process. M.R.E.
505(d)(4) gives the converting authoritythis authority. The infbrmation can be provided in other
formats and trial counsd should be ay^are that these alternatives are available to avoid actual
disdosure of dassifted infbrmation in discoyery,and later, at triaL
1. Classified Information Alternatives. The permissible altematives are:
(a) Redaction. Theftrstaltemative redacting the dassifted infonnation out ofthe
document is the prefened altemative when fhe dassifted infbrmation is not
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relevant to the case. In other cases, the fact thatadocument contains dassifted
infbrmation is relevanL but the substance ofthe classifted information and the
propriety ofthe classiftcation are indevanL Examples of such offenses include
yiolationsofl8USC^^ 798^ and 1924, and50USC^ 783(h),^al1ofwhichcan
be assimilated under Art. 134. In addition,yiolations of general orders fbr
handling dassifted infbrmation do not requireashowing that the classifted
information at issue was properly dassifted, but rather that the infbrmation was
marked as dassifted and was handled contrary to the governing orders. In such
cases, trial counsd might redact all ofthe dassifted infbrmation from the
document and leave the classiftcation markings. In cases in which the
government must prove either that the infbrmation was properly dassifted or
related to the national defense, trial counsd could sdectalimited amount of
dassifted infbrmation to use as evidence fbr such purposes and redact the rest of
the dassifted infonnation frora the documenL
(b)Substitution. The next altemative is to replace the classifted infbrmation with
asubstifute. Aportion ofthe document maybe replaced with language that either
lowers the overall classiftcation ofthe document(e.g.,from SCI to Secret)or may
make the entire document undassifted(fbr instance, if only limited portions are
dassifted). Many times, information may be rewritten to be more general or
eliminate or obscure speciftc sources and methods, yet still keep much ofthe
substance ofthe infbrmation atalower or unclassifted leveL The second type of
substitution contemplated by the mle isasummary. Especially useftil fbr larger
amounts ofclassified inlbrmation contained in docuraents, an unclassifted
summary ofthe infbrmation may be substituted fbr the dassifted infbrraation, or
fbr the entire documenL as appropriate. These options will require extensive
coordination with the owner ofthe dassifted infbrmation to ensure that the
proposed substitutes are, in facL unclassifted. All ofthe intelligence agencies are
familiarwith these methods of substitution because theyprepare them ona
routine basis for cases that the Department ofJustice prosecutes using ClPA.
Remember, the origins ofM.R.E. 505 lie in CIPAand these altematives should be
the trial counsd'sftrst option fbr introducing evidence at trial rather than
immediately succumbing to the lure ofadosedsession,with its attendant
* "Under section 798, the propriety of the classification is irrelevant. The fact of classification of a document or
documents is enough to satisfy the classiftcation element of the offense." United States v. Boyce, 594 F.2d 1246,
1251 (9"" Cir. 1979), cert, denied 444 U.S. 855 (1979).
"There is no suggestion in the language of Section 783(b), by specific requirement or otherwise, that the
information must properly have been classified as affecting the security of the United States. The essence of the
offense described by Section 783(b) is the communication—by a United States employee to agents of a foreign
govemment—of information of a kind which has been classified by designated officials as affecting the security of
the United States, knowing or having reason to know that it has been so classified. The important elements for
present purposes are the security classification of the material by an official authorized to do so and the transmission
of the classified material by the employee with the knowledge that the material has been so classified. Indeed, we
think that the inclusion of the requirement for scienter on the part of the employee is a clear indication of the
congressional intent to make the superior's classification binding on the employee, once he knows of i t " Scarbeck
V. UnitedStates, 317 F.2d 546, 558-59 (D.C. Cir. 1963), cert, denied 374 U.S. 856 (1963).

9-4
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procedural complications (i.e., G^^^^^^ hearing) and opportunities to introduce
appellate enor. Substitutions are also an excellent method of dealing with
information that will be refened to routinely throughout the triaL Acoded
substitution is often used to avoid the necessity of going into dosed session to
prevent inadvertent disdosure to the public. An example might he the narae ofa
covert intelligence agency employee. In suchacase, the Govemment might
substitute "CIA employeel"or "John Doe" in place ofthe real name.
Pseudonyms were used in suchaway fbr certain witnesses in the SEAL detainee
abuse trial, ^^^^^^^^^^^^.^y..^^^^^. This practice was upheld againstachallenge
that it violated the accused'sSixth Amendmentrightto confront the witness
againsthim^^^,(^^^^^^^^^^.^i^.^^^^^^^^,35ML 396,405-10(CMA.1992),
^^^^.^^^^^^^507U.S.1017(1993). In the Weinmarra case, the name ofthe
country that received the dassifted infbrmationfromthe accused was, and
remains, dassifted. In place ofthe country name,"CountryX" was used during
theplea and sentendng, thus avoiding the need fbr dosed sessions.
(c)Stipulation. The third altemative to the disdosure ofclassifted infbrmation in
discoveryor the use of dassifted infbrmation at trial, isastatement admitting the
relevant facts the dassifted infbrraation would tend to prove. This usually takes
the form ofastipulation between the parties. This isavery effective method to
protect dassifted infbrmation and have the Artide 32 investigation and court
martial as open to the public as possible. It isamethod that is used often in
federal trials under CIPAand one that deserves muchraoreconsideration in
courts martial involving dassifted infbrraation. Stipulationsraaybe hdpftil to
both sides to nanow the issues to be litigated at trial and assist in shaping the
case. Given the requirement ofR.C.M. 806(b)(2)that reasonable altematives to
dosing the court martial must be considered, the stipulation admitting relevant
facts that the dassifted infbrmation would tend to prove is an important
altemative to consider. As an example, assume the defense wants to introduce
dassifted operational and intelligence infbrmation to show the extent ofthe
threat/violence faced byaunitinaparticular area. Rather than introducing all of
the dassifted details,astipulation of fact acknowledging the level ofthreat and
providing an unclassifted description ofthe conditions faced by the unit would
likdysttffice.

Practice Pointer. Thedefense team mayfind that the stipulation alternative is the raost
beneftcial altemative fbrthe accused. By deftnition,astipulation must be agreed to bythe
parties and the accused. This creates opportunities fbr creative drafting and is another
opportunity fbr advocacy on behalfofthe clienL ^^^,^.^^TumingTheTab1es: Using The
Goycmraent's Secrecy And Security Arsenal For The Benefit OfThe Client InTenorism
Prosecutions, SamA.SchmidtandJoshuaLDratd,^^A^r.^.^^/^.^^^^.^^,^^ Ifthe
defense is unwilling to enter intoastipulafion, the government may altemativdypropose to
admit certain facts the dassifted infbrmation would tend to prove and seek court approval to
allow the goyemment'sadmission overthe defense objection. In other words, there remain
ways fbrthe govemment andjudges to ensure creative drafting is notusedfo introduce
irrdevanf dassifted infbrmation into the triaL
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These altematives are designed to mi^^^^^ize the release of dassifted information and have
as openacourt-martial as possible, b^^.thcy do not necessarily mean less work fbr trial
counseL The redaction of dassiftedi^^iination by itselfis straightforward and if the
defense stipulates to its admission in ^l^cted form, there is no need to assert the
classifted infbrmation privilege. The A^lacted docuraent should still be submitted fbra
classiftcation review to ensure that w' it has not been redacted does not in the aggregate
disclose dassifted infbrraation. Ifth^ l^^fense is not willing to stipulate that tho redacted
material is not relevant to the case, or ^^ntests the redaction(depending on the purpose of
the redaction), the government must^^crt the dassifted infbrmation privilege over the
redacted infbrmation. Likewise,whe^tindassifted substitutes are proposed in lieu of the
actual classifted infbrmation, and the ^^fcnse objects, classiftcation reviews are required
because dassifted infbrmation is bein^ withheld. As fbrundassifted stipulations, the
need fbradassiftcation review will ^^^r^^nd on the particular facts and drcumstances of
each case. In any case, however, the lipulation or substitution should be reviev^ed by the
originator ofthe dassifted infbrraatioiin order to ensure that it does not contain any
dassiftedinfbrmation.
2. ProtectiveOrders. Dining the pi icfenal stage, ifthe Government agrees to
produce dassifted discovery to the d^^^nse, the convening authority may disclose it
"subject to conditions that will ^uardi^^ainst the coraproraise ofthe infbrmation."
M.R.E. 505(d)(4)(emphasis added.), ^ne type of condition that could be used isa
protective order,which is speciftcally lAlcned to inRule fbr Courts-Martial 405(g)(6).
Although R.C.M 405(g)(6) does noti ^^uiie the entry ofaprotective order, the convening
authority should, ataminimura,cntciipiotectiye order when dassifted infbrmation is
disclosed to the defense. The protecL^corder should contain all the provisions ofM.R.E.
505(g)(l)(B) (F). Sample protective tders are included in this guide as appendixes to
Chapter6. However, it should be not dthat the only speciftc suggestion ofa^re^
referral protective order comes inRB^^.M405(^)(6). The language used in M.R.E.
505(d)(4) is "conditions,"amuchbn ^idcr terra whichraeansthe convening authority is
only limited by his imagination and tl i^ Constitution in developing conditions designed to
ensure the protection ofclassifted infA^^^ation. Some "conditions" that would not be
considered unusual,but are certainly ^OT required inadassiftcd infbrraation case are:
requiring the defense to haye^GSA^^^provodsafeprior to storing dassiftedraaterialin
government defense spaces; usinga' Biding room" asacentral point of storage fbr all
dassifted infbnnation, thereby proviB^^^g access to the material, but not providing copies;
and requiring the accused to be in the ^^icsence ofhis counsd oradeared meraber ofthe
defense team y^hen the accused is rev A^ving classifted infbrmation in the case.
WTiile not spedftcallyprovided fbr u l c r theRCM.or the M.R.E.,tho defense may
object to the terms of the protectiveo^^r imposed by the convening authority if the
defense believes the terms are unduly BAstrictive or otherwise interfere with therightsof
tfieaccused^^^L^^^^^^^^^^^.^iB^^^^^^,53M.J425 (CAAF2000)(the
commenting thaf the convening auth^ity'sappointmont of an Investigation Security
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Offtcer to monitor conversations between defense cotmsel and the accused "does not
appear[to be thejleast restrictive means ofproviding appropriate protection of dassifted
infbrmation and appellant's right to counsd under thcSixth Amendment and Artide 27,
Uniform Code ofMilitary Justice,10USC^ 827.") SeealsoL^^^^^^^^^^^^.^y.^^/^^^^^,60
M.J.1(C.A.A.F.2004). Inarecentnonespionage case, defense objections to the
protection order terms and "spedal instmctions"issued by the convening authority were
the subject of an extraordinary writ thaL again, made it all the way to the Court of
Appeals fbr the Armed Forces. ^ ^ ^ ^ ^ ^ ^ . C ^ ^ ^ ^ ^ ^ ^ ^ . A ^ ^ ^ / ^ ^ ^ ^ ^ ^ ^ / ^ ^ ^ ^
C^^^^^^,61M.J.14(C.A.A.F.2005). In this case, the convening authority'sinitial
Artide 32 convening order had not permitted the introduction ofclassifted infbrraation.
After an extraordinary writ was ftled with the NavyMarine Corps Court ofCriminal
Appeals,areyised order was issued directing the investigating offtcer to inform the
convening authority i f i t appeared that there y^as dassifted infbrmation requested by the
defense that the investigating offtcer thought was relevant to the case. Although the
second order effectivdymooted the extraordinary wriL CAAF speciftcally stated that the
accused could ftleaftirtherpetition fbr extraordinary relief uponashowing that the
convening authority"did and continues to refuse to permit the investigating offtcerto
consider dassifted infbrraation in the hearing that the investigating offtcer deeras relevant
to the investigation.^^7^.
3. Article 32 Proceedings Artide 32 proceedings, like courts martial, are open to the
public. This means that Artide 32 investigations may only be dosed in accordance with
the procedures discussed in the next chapter. Under M.R.E. 505,the assertion ofthe
classifted infbrmation privilege may not occur at the Artide 32 stage ofthe courtmartial
proceeding. Instead, under M.R.E. 505(d)(5), the convening authority may chose to
withhold disdosure ofthe infbrmation, ifdisdosure would cause identiftable damage to
the national security. Where the infbrraation is withheld, the investigating offtcer does
not holdahearing under M.R.E. 505(i) to determine the dassifted information's
relevance and necessity to an dement of an offense. Those provisions all applypost
refenal, in front ofthe militaryjudge. If the convening authority provided dassifted
infbrmation to the defense in discoyery,it is entirely possible that dassifted infbrmation
will be introduced during the Artide 32 proceeding, by one ofthe parties or through
witness testimony,without substantive discussion of their contents. This is most
commonly referred to as the "silent witness rule." Altematiyely,the parties may decide
to introduce the evidence inaclosed session. When that happens, the investigating
offtcer will need to conductadosure hearing underRCM. 806(b)(2), as discussed in
ChapterlO.
Convening authorities should seriously consider avoiding convening orders that bar the
introduction ofclassifted infbrmation at Artide 32 proceedings or that order the entfre
proceeding to be held either inaclosed or open fomm. Barring the introduction of
classifted infbrmation and ordering an entirely open proceeding may deprive the accused
of tho opportunity to effectivdy represent himself and unconstitutionally restrict his

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presentation ofevidence in his defense.^ By ordering an entire Artide 32 proceeding to
be held in dosed session,aconyening authority is almost certainly going to violate the
accused'sSixth Amendment and public'sFirst Amendment rights to an open triaL ^^C,
.^^^^.^^^'^//,47ML 363,365 ( C A A F 1997),^^^^^^^^^^^.^yG^^^^^^^,2M
(C.M.A. 1977). Because there may be cases in which the government does not foreseea
defense request fbr discovery ofclassifted infbrmation, the investigating offtcer may have
to notify the convening authority "as soon as practicable" upon receipt of sucharequesL
R C M 405(g)(l)(B)
(a). ReasonablyAvailable? Upon receivingadefense request fbr discovery of
dassifted infbrmation or permission to use dassifted information in the
proceeding, the investigating offtcer (beyond notifying the convening authority)
must make an initial determination y^hether the infbrmation requested is
"reasonably available." R.C.M.405(g)(2)(C). "Evidence is reasonably available
if its signiftcance outweighs the difftculty,expense,dday,and effect on military
operations ofobtaining the evidence." R.C.M.405(g)(l)(B). The deterraination
ofwhether dassifted evidence is reasonably available would rest on the normal
factors for determining whether infbrmation must be produced; this is,whether
the requested infbrmation is relevant to the investigation, not cumulative, and was
requested inatimely manner. 7^.
If the investigating offtcer ftnds dassifted infbrmation requested by the defense to
be reasonably available, the investigating offtcer must request the "custodian of
the evidence" to produce iL Ifthe custodian ofthe evidence determines the
dassifted evidence is not reasonably available, the investigating offtcer and the
accused are bound by that determination. R.C.M.405(g)(2)(C). With respect to
dassifted infbrmation, the "custodian of evidence" may include both the OCA
and the convening authority. The originator isacustodian of the evidence
because itraaybe the only agency with physical custody ofthe evidence and it
raay bar another holder ofthe evidence frora releasing it without the originator's
approvaL The convening authority may also beacustodian ofthe evidence i f i t
has physical custody ofthe evidence. However, unless the convening authority is
also the OCAfbr the classifted infbrmation, the convening authority lacks the
authority to release the classifted infbrmation without the consent ofthe
originators
If the defense objects toadetermination that dassifted evidence is not reasonably
available, the investigating offtcer must indudeastateraent ofthe reasons fbr that
deterraination in the record ofinvestigation. R.C.M.405(g)(2)(D). The

^Seethe discussion of ^^^^.C^^^^^^^^,^^^^^^^^^^^^^^^^C^^^^^^,6IM.J.I4(C.A.A.F.2005)
under subsection2on protective orders for an example ofacase in whichaconvening authority attempted
to restrict the introduction of classifted information at an Article 32 proceeding.
^ See Chapter2foradiscussion ofhow Executive Order 13526 ^4.I(i)(I)^^alterthe need to obtain originating
agency'sconsent for documents created after 27 June 2010.
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govemmenL therefore, should be prepared to assist the investigating offtcer in
raakingafull and articulate record of the reasons relied upon by the OCA and the
convening authority ifboth have determined the dassifted evidence is not
reasonably available. Agood record on this determination wift he important
since, if the case is refened toageneral courtmartial, the accused is permitted
under R.C.M.s905(b)(l)and906(b)(3)to move the military judge to reviey^ the
deterraination duringapretrial session. Unless the defense request was wholly
frivolous, the defense should ftle sucharaotion as soon afterrefenal of charges as
possible.
(b)DefenseDutyofNotiftcation. Although M.R.E. 505 reads as ifthe notice
provisions only applypostrefenal,recaft that R.C.M.405(i)raakesPartVofthe
M.R.E.'sapply at the Artide 32. Therefbre, the M.R.E. 505(h) requireraent that
the defense notify the govemment ifthe defense intends to disclose or to cause the
disdosure ofclassifted information applies at the Artide 32. Regardless, the
convening authority,fbr any matter in which dassifted infbrraationraaybe in
issue, should placeanotice requireraent on the defense in the Artide 32
convening order. The intent ofthe M.R.E.505(h) notice requirement is to alloys
the government tirae to coraplete any necessary classiftcation reviews and to
decide whether or not to invoke the privilege. It is also intended to allow the
hearing to accommodate dassifted infbrmation without compromise. Although
privilege may heanonissue at the Artide 32 stage, the need to get classiftcation
reviews and be prepared to address potential closure issues is very importanL The
convening authority should require the defense to provide this notice wdl in
advance ofthe date ofthe Artide 32 proceeding, even ifthis means delaying the
Artide 32 longer than would occur inanonclassifted infbrmation case. In short,
the convening order should order the defense to coraply with the notice
requireraents ofM.R.E.505(h), discussed more ftilly bdow.
D. Post-Referral Discovery. M.R.E.505(e)places the postrefenal processes squarely in the
lap of the military judge,who is to set the timing ofrequests for discoyery,the defonse notice
obligation under subsection (h), and the in camera review hearings of subsection (i). The
convening authority'srole is now conftned to responding, on behalf ofthe government
(including the intelligence comtnunity), to the rulings o f t h e tnilitary judge.

M.R.E.505(f).

1. ProtectiveOrders. When the govemment has previously disclosed dassifted
infbrmation to the defense, or has agreed to do so post refenal, the onus is on the
govemmenL under M.R.E. 505(g), to request an appropriate protective order from the
militaryjudge. Trial counsd should ALWAYS request suchaprotective order in
classifted infbnnation cases. The order previously issued by the convening authority is
arguably no longer eftedive now that the militaryjudge is in control ofthe litigation. Of
course, the defense counsd and accused'sduty to safeguard dassifted infbrmation as
embodied in the non-disclosure agreement they already signed does not go away. Still,
the protective order issued by the militaryjudge ensures that all the parties are aware of
the militaty judge'srequirements and expectations withrespoct to dassifted infbrmation.
Ataminimum, the protective ordorproposed by the govemment fbr the military judge
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should include all ofthe provisions discussed in subsections M.R.E. 505 (g)(1)(A)
through(G).
2. Alternatives to FuU Disclosure. After refenal, under M.R.E. 505(g)(2)the military
judge, like the convening authority befbre him, is authorized to approve the same
altematives to full disdosure oruse: redaction, substitution, and admissions ofrdevant
facts. The same considerations as discussed above with regard to those altematives also
apply post refenaL Under this section, however, therailitaryjudgeis required to
consider whether"disdosure ofthe classifted infbrmation itselfis necessary to enable the
accused to prepare for trial." Note thataftnding that certain dassifted infbrmation itself
is "necessary" to prepare fbr trial does not guarantee that the inforraation will be allowed
to be used at trial, or used in its dassifted form. Anyraotionby the government for using
these altematives are to be considered by the judge ^^^^^^^^^,which utilizes the
procedures contained in M.R.E.505(i), the operation ofwhich is discussed more fully
bdow.
3. ^ B ^ ^ MateriaL Notwithstanding the number ofmethods and opportunities the
government has to avoid full disdosure ofclassifted infbrmation, defense counsel are
likelyto assume that potentially exculpatory infbrraation regarding the accused must be
disclosed under the principles o f ^ ^ ^ ^ y . ^ ^ ^ / ^ ^ ^ , 373 U.S.83 (1963)andR.C.M
701(a)(6). However, this assumption may be enoneous when the infbrmation at issue is
dassifted. The typical practice in courts martial is for the government counsd to
disclose, per R.C.M 701(a)(6),"the existence of evidence known to the trial counsd
which reasonably tends to: (A)negate the guih of the accused of an offense charged; (B)
reduce the degree of guilt of the accused of an offense charged; or(C) reduce the
punishment." This is the codiftcation ofthe constitutionally required test set fbrth by the
SupremeCourt i n ^ ^ ^ : i ^ y ^ ^ ^ / ^ ^ ^ and G^^/^^y^^,405U.S 150(1972)
The major factor complicating the discovery ofclassifted inforraation is that regardless of
the defense's need-toknow,the Government may not be able to disclose classifted
infbrraation to the defense without the consent ofthe agency originating that infbrraation.
For events covered by E.O.12958, "An agency shall not disclose infbrmation originally
dassifted by another agency without its authorization." E.O. 12958,^4.1(c). However,
E.O. 13526 states this may be possible if the OCA hasn'tpreviously indicated that prior
approval to disseminate the infbrmation is required.^ Ifthe OCA reftises to release
exculpatory material, then the exculpatory material carmot be provided to the defense. Of
course,fromthe defense StandpoinL this is not all bad as the failure to provide
exculpatory material would require therailitaryjudge to impose oneofthe sanctions
listed in M.R.E. 505(i)(4)(E) because exculpatory infbrmation certainly meets the
heightened discovery standard fbr dassifted infbimation ofrdevant and necessary to an
element ofthe offense oralegally cognizable defense." M.R.E. 505(i)(4)(B)and 505(f).
The biggest hurdle in dassifted infbrraation is simply determining whether anypotential
^ ^ ^ ^ infbrmation even exists, especially when intelligence agencies are involved in the
See Chapter2foradiscussion ofhow Executive OrderI3526 ^ 4 . I ( i ) ( I ) ^ ^ alter the need to obtain originating
agency'sconsent for documents created after 27 June 2010.
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case. Because most military lawyers are not familiar with the opention ofintelligence
community agencies, neither trial nor defense counsd raay even kn.^w what to ask fbr.
One possible solution is fbr counsd to look to the Department ofJt^^tice procedures fbr
dassifted infbrmation in federal crirainal cases fbr some good mies ^^f thumb. In any
evenL Code 30 is well-suited to assist in this area.
Section 2052 oftheU.S.Attomey'sManual,Title9Criraina1 Resource Manual
("Manual"),^sets fbrth DoJ procedures for "Contacts with the Intel'igcnce Community
Regarding Criminal Investigations or Prosecutions." The guidance ^liscusses the concept
ofa"pmdentialsearch"ofIntdligence Community (IC) ftles, geneally befbre charges
are broughL ifthe government has "objective articulable factsjustitying the conclusion"
that IC ftles "probably contain dassifted infbnnation that may hav^^inimpacL'on
charging and other decisions. Ofcourse, one means by whichapr^^^cutor can come to
this conclusion is byadetailed proffer inadiscovery request by thedefense fbr
information known or believed by the accused to be in the IC ftles. This certainly makes
thegovemment'sobligationtoconductapmdentialsearchthatmuh more compelling.
Along those lines. Section 2052 ofthe Manual also details whena^iosecutor is
compelled to search fbr discovery material within IC ftles. Becaus^^ we recommend to
cotmsel that they read the Manual we will not repeat the Manual's^^^ntent^^^^^^^ here.
However, the relevant sections raay be summarized as fbllows:
[Thejprosecutor's afftrmative obligation to search the IC fti slbr^^^^material
is not triggered merely by the defendant's(or the prosecutoi'^)speculation that
such ftles contain discoverable infbrmation. Nor is the gov^iiiinent required to
search the ftles ofevery intelligence agency that conceivabty may have
exculpatory infbrmation. On the other hand,where therein inexplicit request fbr
discovery that has been approved by the court, the scopeofthe search may have
to be broadened. It may not reasonably be conftned to merdythe prosecution
teara i f there are known facts that support the possible exisL nccdsey^here of the
requested infbrraation...If the prosecutor has actual or irap'icd knowledge that
the IC ftles contain...Jencks[orj.^^^^ materials, the proscutor must search the
IC ftles
Manual, Sections2052(2)(a),2052(2)(b)
The bottom line is that there are no ftshing expeditions fbr classiftc^ii^ateriaL The
intelligence comraunity and its litigation attomeys will not tolerate ^nch forays.
However, they will respond to court orders based on nonspeculati^Adefense requests.
Defense counsd will best serve thdr client by making such request^as speciftc as
possible. By doing so it is much easier to locate the infbrmation ai^ ^^ng the vast amotrats
of data held by the intelligence community and it is harder fbr thegovernment to denyfhe
requesL

^Available at http://www.usdoi.^oy/usao/eousa/foia readin^room/usan I^tle9/crm02052.htm.
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4. Disclosure of ^ ^ ^ ^ Information. Determining the existence ofpotential ^ ^ ^ ^
material does not completely answer the question ofwhether it has to be disclosed to the
defense. There isalimited amount ofmilitary case law on this topic. However, L^^^^^^^
^^^^^.^y^^^^^^^^,31MJ 8 4 9 ( N M C C A 1990), whichappliodaCIPAanalysisto the
discovery of potentially exculpatoty infbrmation atacourtmartial, is particularly hdpfuL
The standard the court used is set forth in (^.^.y.^^^^^^^^, 353 U.S.53 (1957). At its
essence, the standard isa3part test on relevance; the existence ofacolorable privilege;
and whether the infbrmation is "helpful to the defense"or "is essential toafair
determinationofacause."^^^^.^.,L^^^^^^^^^^^^.^y.T^^^.^,867F.2d617(DC Cir. 1989);
(^^^^^^^^^^^^.^y..^^^^.^.^^^^^^,382 F.3d.453 (4^^ Cir. 2004) In essence, ifan altemative
(summary,substitution, stipulation) to disdosure would provide the accused with
substantially the same infbrraation as the actual dassifted infbrmation itsdf,which
should satisfy the govemment's.^^^^ obligation, then the actual classifted infbrmation
need not be produced.
5. Jencks Act/R.C.M. 914 Prior Statements. R.C.M.914codiftosformi1itary courtsmartial the provisions of the Jencks Act(18U.S.C.^3500), which relates to prior
statementsofawitness available in discovery to the opposing side fbllowing that
witness'stestimony. The usual R.C.M.914mles do not apply,howeyer,when the
witness'sprior statement contains dassifted information. When the classifted
infbrmation privilege is invoked against disdosure of such statements because of their
dassifted nature, the militaryjudgeraustconduct an ^^^^^^^^^ review oftheraaterialto
determine whether the dassifted statement is consistent or inconsistent with the witness's
testimony. Ifthe statement is consistenL then thejudge will excise the consistent
dassifted portion frora the prior statement and deliverthe redacted statement to the
defense. Ifthe statement is inconsistenL then the militaryjudge must give the
government an opportunity to invoke 505(i) proceeding. Essentia11y,thereisnoharmin
not disclosing prior consistent stateraents to the defense. However, the onus of making
that determination is placed on the railitary judge. Ifthe militaryjudge ftnds that the
statement is inconsistenL but the govemraent still refuses to permit disdosure to the
defense, this, again, presents an opportunity fbr the defense to get the militaryjudge to
invoke one or more ofthe sanctions ofM.R.E.505(i)(4)(E) against the govemmenL
Ifthere are prior statements ofwitnesses that are classifted, those stateraents will need to
undorgoadassiftcation review just like any other potential dassifted evidence to bo used
at triaL Trial counsd and staffjudge advocates need to plan accordingly,wdl in advance
of trial, so that delays will not derail the court martial process. The defense is also
obligated to notify the government under M.R.E. 505(h) ifthey are aware ofany prior
stateraents by defense witnesses that raay be dassifted. This will perrait the govemraent
the tirae to haveadassiftcation review corapleted and determine whether or not it will
invoke the dassifted infbrmation privilege overthe materiaL
6. Defense Duty o f N o t i f i c a t i o n . M R E 505(h)(l)imposesamandatoryrequireraent
on the defense to notify the government of any dassifted infbrmation that it "reasonably
expects to disclose or to cause the disdosure of" in any phase ofthe courtmartial
proceeding. It should he noted upfront that there is no reciprocal notice requirement
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within M.R.E. 505(h) imposed on the govemmenL This is very different from most other
R.C.M. notice proyisions,which generally impose reciprocal notiftcation requirements on
the govemmenL Despite the lack ofredprocalnoticc,where the government does intend
or expect to disclose infbrmation at trial, the defense will get notice either at the
evidontiaty stage under M.R.E.505(i),or at the closure stage underRCM. 806(b)(2), as
the government will have to move the court fbr authority to conductadosed session fbr
purposes oftaking dassifted evidence Since notice will occur anyway,defense counsel
should consideramotion requesting reciprocal notice from the govemraent at the same
time defense nofice is due. After all, ifthere is any case where the militaryjudge and the
parties want to avoid trial by surprise, it isacase involving dassifted infbrmation. The
court must know this evidence is coming in order to adequatdy prepare fbr the hearing.
The M.R.E. 505(h) defense notice must bo served on trial cotmsel and the militaryjudge
within the time frame spedfted by the militaryjudge or, ifno time has been spedfted,
prior to anaignmenL M.R.E.505(h)(1). This notiftcation obligation isacontinuing duty
and the defense must notify the trial counsd and militaryjudge "as soon as possible"
after leaming ofthe reasonable expectation to disclose infbrmation for y^hich notice was
not previously given. M.R.E. 505(h)(2). Tho notice must indudeabrief description of
the dassifted infbrraation but must be "more thanaraere general statement ofthe areas
about which the evidence raay be introduced."M.R.E. 505(h)(3). Rather the notice
"must stato,withparticularity,which iteras of dassifted infbrmation he reasonably
expects will be revealed by his defense."^^. This provision is in keeping with the idea
that ftshing expeditions fbr dassifted infbrmation are not allowed. The defense must list
the particular iteras of dassifted infbrraation that wift be used at triaL SeeL^^^^^^^^^^^^.^
y^^/i^^^^,NMCCA 200200494, 2006CCALEX1S106(N M C C A May10,
2006)(ftnding M.R.E.505(h)notice requirements constitutional),
64 M.J.437,
2007CAAFLEX1S 873 ( C A A F 2007)
Although "particularity" refers to identiftcation ofthe dassifted infbnnation to the extent
possible, and not the intended use ofthat inforraation, it raay not be entirely possible fbr
the defense to avoid sharing tho purpose fbr which it intends to use the infbrmation.
Underthe procedures ofM.R.E.505(i), discussed in the next section, ifthe government
objects to information contained in the defense notice on dassifted privilege grounds or
proposes at^ alternative to the re^tie^ted defense information, the defettse w i l l tteed to

argue why the infbrmation itselfis relevant and necessary to the dcfense'scase.
Likewise, there may he situations in which tho govemment argues that the dassifted
infbrraation sought by the defense is not relevant underthe standard ofR.C.M.401
(discussed in sectionEbdow). In such an instance, the defense will also need to reveal
to the govemraent and the railitaryjudge tho intended use thatraakesthe infbrraation
relevant to the case.

Practice Pointer. Defense counsd should note that tho notice requirement encompasses
not only information that the defense intends fo disclose ifsdf^ hut also that which it reasonable
expect to cause to be disclosed, fbr instance on cross examination of witnesses during the
govemmont'scase-inchieft Dofonsecounsdmustcarefullyplanout all aspects ofthdr case
wdl in advance to ensure that they are not foreclosed from pursuingadassified line of
qtiestioning.^^^M.RE.505(j)(4)(permif^t^^goyommontohjodiontoanylineofinquttynof
prcvioustyfoundtobordevai^d^^^^s^^^h^^nse)

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7. The .^^C^^^^^ Proceeding. The evidentiary hearing to which all M.R.E. 505 roads
lead^^ is the ^^^^^^^^^ proceeding under M.R.E. 505(i). The primary purposeoftho^^^
^^B^^^^ proceeding is to litigate the govemraent'sassertion ofprivilege over dassifted
infbrraation. As it is rare that infbrmation is withheld from disdosure to the accused,^^
the secondary purpose of the ^^^^^^^^^ proceeding is oyidentiary,i.e.,the consideration
and approval ofclassifted infbrmation altematives and substitutes. The^^^^^^^^
proceeding is separatefromthe hearing used to dose the courtroom. Ahearing to dose
the courtroom has traditionally been calledaG^^^^^^^ hearing, but is actually bost
thought of asahearing under R.C.M. 806(b)(2)and is discussed in the next chapter.
M.R.E.505(i)(2)places the burden ofmoving fbr an ^^^^^^^^^ proceeding on the
govemmenL after all, it is the govemment'sprivilege. The government needs to provide
the dassifted infbrmation at issue and an affidavit to therailitaryjudge,who examines
the material
The affidavit must deraonstrate that tho disdosure ofthe
infbrraation could cause daraage to the national security in tho degree required to wanant
classiftcation underthe applicable Executive Orders and regulations. The classiftcation
review completed by tho subject matter export and endorsed by the Original
Classiftcation Authority fulftlls this requiremenL Therailitaryjudgedoes not review the
propriety ofthe classiftcation, but does ensure that tho infbrmation has been dassifted in
accordance with the Executive Order. As discussed in Chaptor7,oyory properly
prepared classiftcation review wift describe the reasonably expected damage to national
security in tho term concomitant with tho requisite lovd ofclassiftcation: damage fbr
Conftdential; serious damage fbr SecroL and extrerady grave damage fbrTopSecroL
Once tho military judge reviews the properly prepared classiftcation review afftdaviL he
or sho will conduct an ^^^^^^^^ proceeding.
Although there are repeated references to this as an ^^^^^^^^^ proceeding, all such
proceeding are not also ^.^^^^^^ because the defense hasarole to play in some ofthem.
The government is required to give the accused notice ofthe infbrraation that is the
subject ofthe ^^^^^^^^^ proceeding. This is to allow the defense the opportunity to
prepare an argument to be presented to tho military judge regarding tho material that is
The other sections that refer to the in camera proceeding are: (e), (g)(2), (g)(3)(B), and (h)(4).
^^One of the rare instances was thecase of ^^^^^^^.^^^^^.^^.L^^^^^^^,3tM.J. 849 (N-M.C.M.R. 1990), affdtn
relevant part and set aside in part 35 M.J.396 (C.M.A. 1992). In
the govemment withheld the name and
background information ofagovemment agent who was called to testify about facts that would corroborate
Lonetree'sconlession. The agent was to testily thataknown Soviet agent appeared atatime and place indicated by
Lonetree as the location he was to meet this known Soviet agent The trial judge agreed with the govemment's
motion and allowed the agent to testify under the pseudonym John Doe,without his real name and background being
known to the accused and his counsel. The Navy-Marine Corps Court ofMilitary Review and the Court ofAppeals
for the Armed Forces both determined that withholding the information did not violate the accused'sSixth
Amendment confrontationrightbecause the accused had all thatwas needed to place the witness'^in his proper
setting^^ and to provide the context fot^ the testimony. L^^^^^^^, 35 M.J. at 42 43.
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the subject ofthe proceeding. If tho dassifted infbrmation has never beenraadeavailable
to the accused in cotijunction with pretrial proceedings, then the govemraent raay provide
agonoric description ofthe material to the defonse team. This generic description raust
be approved bythe railitaryjudge. Iftho dassifted information has previously boon
available to tho accused during tho course oftho proceedings, usually in discovoty, then
tho govommont'snotico must speciftcally identify tho infbrmation that will be at issue in
the proceeding. Thus, the more tho accused knows about tho infbrmation, tho moro
infbrmation must bo contained in the govemraent'snotico.
Befbre therailitaryjudgeraakeshis mling, both the govemraent and tho defense are
given the opportunity to briefand argue their respective positions to the railitaryjudge,
ostensibly as part ofthe ^^^^^^^^^ proceeding. Ifthe railitaryjudge ftnds, inwriting,^^
that tho dassifted infbrraation is "relevant and necessary to an dement of the offense ora
legally cognizable defense
is otherwise admissible in evidonce,"M.R.E.
505(i)(4)(B)(oraphasis added),the railitaryjudge can then order tho govommont to
disclose tho infbrmation to tho accused fbr use at triaL Tho govommont then has the
option to either produce tho material, stipulate to admissible facts, orpropose an
altemative that tho militaryjudge ftnds an acceptable substitute. Ifthe militaryjudge
ftnds there is no acceptable substitute or replacement fbr tho raaterial itself and the
government still refuses to disclose tho infbrmation(as is its prerogative), then tho
militaryjudge "shall issue any order that the interests ofjustice require" pursuant to
M R E 505(i)(4)(E) M R E 505(i)(4)(E)proyidesanonexhaustiyelistofpossiblo
sanctions.
M.R.E.505(i)(4)(D)makes it dearthatafuft discussion of evidentiary altematives to fiift
disclosure isaprimary purpose oftho in camera proceeding. The mle dearly .
contemplates situations in which the government does not contest the relevance,
nocossity,and admissibility of tho dassifted infbrmation. In such circumstances, tho
focus oftho inquiry is not whether the infbrmation should bo disclosed or noL but
whether or not there is an acceptable altomativo. "Acceptablo,"ofcourso,isuptothe
military judge,whose decisions will be subject to appellate review as the record ofthe
^^^^^^ proceeding, induding the complete version ofthe dassifted infbrraation, is
sealed and attached as an appellate exhibit to the record oftriaL
8. Consequences for Invoking the Classified Information Privilege: Sanctions
Under M.R.E.505(i)(4)(E) and M.R.E. 505(f). Although thoy arophrasedinasimilar
fashion, the sanctions ofthese two sections arise under very different drcumstances. The
militaryjudge has tho ultimate sanctioning authority in both set of drcumstances,
however, M.R.E. 505(f) govems when the convening authority carmot obtain tho
classifted infbrmation at issue,wheroas M.R.E.505(i)(4)(E) govems when the convening
authority has obtained the dassifted infbrmation, the govemraent has unsuccessfully
sought tho court'sapproval to produce an altemative to ftill disclosure, and still declines
to produce the dassifted infbrraation itself. The railitaryjudgo'soptions are greater
underMRE 505(i)(4)(E)thanunderMRE 505(f) PursuanttoMRE 505(i)(4)(E),
M.R.E.505(i)(4)(C) states that the information may not be disclosed "^u^nless the rnilitary judge makesawritten
determination that the information meets tlie standard set forth(above^."temphasisadded^
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the military judge may do nothing. Strike testiraony,or even disraiss the charges or
speciftcations to which the dassifted infbrmation relates.
Under M.R.E.505(f), since the convening authority has been unable toobtain the
dassifted infbrmation that is apparently relevant and nocossary,oyon if tho appearance is
only duo to tho dofonso'snotice under M.R.E.505(h), tho military judge is siraplynot
able to make tho same mling that ho can under M.R.E. 505(i)(4)(E) since he has not hada
chance to actually evaluate tho merits oftho infbrmation. Tho militaryjudge is simply
relying on the defonso'sproffor and whatever isofforod by the govemraouL But note that
therailitaryjudgeis not ompoy^orod to order discovery ofthe infbrraation, rather his
ultimate sanction is to dismiss tho charges and speciftcations, or both, to which the
classifted infbrraation relates.
The convening authority is thus put in tho challenging position ofraakingraajor decisions
in tho case with respect to dassifted infbrraation that is likely not under his controL Tho
convening authority can "institute adion to obtain the dassifted informafion fbr tho use
by tho military judge in makingadotorraination under subdivision (i)."M.R.E.505(f)(1).
This will likely include negotiating with tho agency that"owns" tho infbrmation, fbr
permission toobtain and disclose tho dassifted infbnnation at least to tho militaryjudge
fbr an
review under 505(i). As discussed bdow,aftor conducting the
505(i)royiow,tho military judge may ultiraatoly dotormine tho dassifted infbrraation
need not be produced fbr discovery oruse in the case anyway. Once it is disclosed
to therailitaryjudge,however, the dassifted infbrraation, or an
affidavitfromthe originating agency committing to make the infbrraation available fbr
appellate royiew,raust bo madeapart ofthe sealed record. Forparticularly sensitive
infonnation thatraaynot beaviablo option. In certain cases and fbr certain infbrmation
this negotiationraaytake place at the Secretary level in tho inter agency process. Code
30 is always available to assist throughout this process.
Tho convening authority'sothor options are to dismiss the charges completely or only
those charges and speciftcations to which tho infbnnation relates, M.R.E.505(f)(2) (3),
orto "take such other action asraaybe required in tho interests ofjustice."M.R.E.
505(f)(4). One possible such action is to nogotiateapretrialagreeraent in order to
dirainate evidentiary issues at trial or on appeaL
W^lo thorailitaryjudgecannot order discovoryundor this provision, ho does have some
tools that can be used if aftorareasonablo period oftime the convening authority does
not resolve the issues. In such circumstance, iftherailitaryjudgeftndsthat proceeding
without tho inforraation "wouldraateriallyprojudiceasubstantialrightoftho accused"
tho judgeraust"disraisstho charges or speciftcations or both to which the dassifted
infbnnation re1ates."M.R.E. 505(f). Notice that the dismissal is mandatory under those
drcumstances ifthojudgoftndsmaterial prejudice.
9. Extraordinary Writs. As discussed in various places throughout this Priraer, counsd
should not forget thoraanyother provisions in tho R.C.M. and M.R.E. just because there
are spedal mies fbr dassifted infbrmation. Tho rest ofacase involving dassifted
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information progresses according to the "normal" mlosofpractice. Consequently,in
addition to tho sanctions and romodios available under M.R.E. 505 fbr discovery
limitations, defense counsel should also explore the availability of extraordinary relief at
tho Navy-Marino Corps Court ofCriminal Appeals or even at the Court ofAppeals fbr
tho Armed Forces if you moot tho criteria fbr an ExtraordinatyWriL However, as our
appellate colleagues like to say,"they are called extraordinary writs foraroasonl"
Acourt will look to see that tho accused has doraonstratoda"doar and indisputable
right" to tho relief. Araong the factors thatacourt may consider are that thoro is no other
means fbrrdief, that the damage is not conoctablo on appeal, that tho action by tho
military judge is dearly ononeous(^.^.,there is no dispute on the law), that this is an
example ofarocurringonor(^.^.,continuing application will dismpt tho judicial process),
or that this isanow/importantissueoflaw. As can be seen, these are difftcult hurdles to
overcorae fbr the defense. .^^^.^^^,D^^i^.C^^^^B^^^^,A^y^/^^^'^^^/^^^^C^^^^^^
^^^.^^^^^,2004CCALEXIS276(Unpub Op Docombor 15,2004), and^^^y^^^^.^^
y ^ ^ ^ ^ ^ C ^ ^ ^ ^ ^ ^ . ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ , ARMY MISC 20041215, 2005CCALEXIS
550 (ACCA,Unpub Op 23 February 2005)
Amajorproblora for defense counsel attempting to challenge withholding of
.^^^^^ information is the fairly significant test for prejudice. As set out by the
Court of Appeals fbr tho Armed Forces, tho tost is ftrsL^as tho inforraation or ovidonco
af issue subject to disclosure or discovery; and second, if not disdosod,what was tho
effect ofthat nondisclosure on the trial outcorao. ^.^.v..^^/^^^^.^, 59 M.J.323,325
(C.A.A.F.2004). Tho voryprosonco oftho second tost indicates thatacourt raay not bo
willing to entertain an extraordinary writ ona^^^^ disclosure issue since there is no
"trial outcorao" upon which to test the alleged harm. Ilowovor, counsd should conduct
their own research into tho cunent statoofthe law as it relates to their case facts and
circumstances and take appropriate action.
E. Motions ^^^^^^^^Re^ardin^ Admissibility and Relevance Arecent phenomenon of
cases arisingfroratho War onTonor is litigation overthe timing of classiftcation reviews fbr
dassifted infbrraation tho defense seeks to introduce at triaL In those cases, the convening
authority has raadeapolicy dedsion to provide broad discoyory(for instance, access to the
intelligence database o f a M a r i n c command fbrasub^tantial portion o f i t s deployraent) to the

defense teara. The defense then properlyftlosthe notice ofintent to use particular classifted
items under M.R.E. 505(h). Prior to undertaking tho staffing and coordination required to
conduct classiftcation reviews ofthisraaterial,tho govommont contests the basic rdovanco ofthe
requested material to tho case. Essontially,tho govemraent argues that tho defonse request
requires an urraocossary and burdonsorao assertion of executive privilege for infbrraation that is
not relevanL
This issue highlights an area ofarabiguity under M.R.E. 505. However, the stronger argument is
that the government can argue rdovanco and materiality issues priorto initiating stops to assert
privilege. Of course, if tho govommont adopts this tactic, tho govommont may have to
ftantically gather classiftcation reviews ifthe militaryjudge mlos that tho disputed dassifted
infbrmation is rolovanL Another issue is tho timing ofthis govemment effort. Inthoprorofenal
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period the convening authority may lirait discovery and disclosure per M.R.E. 505(d). However,
once tho militaryjudge is in control ofthe case the issue raay becoraoprobloraatic fbr the
govommont although havingadotachod ftnal arbitrator may also hdp advance tho govomraont's
position. Tho proper y^ay to evaluate this issue is to roraeraborthat M.R.E. 505 does not exist in
avacuura in tho courtraartial process. Other evidentiary and procedural mlos operate in
corijundion with M.R.E. 505 and are not speciftcally superseded by tho privilege unless
indicated in tho other mlo. ^^^,^.^.,R.C.M.701(a)(6)corapared with 701(f) (limits discovery of
infbrmation "protected frora disclosure by tho Military RulesofEvidence.")
Govommont cotmsel can argue that tho plain language ofM.R.E 505(o)doos not require
assertion oftho privilege prior to preliminary R.CM. 802 and/or Art 39(a) sessions to discuss
various issues relating to the case induding the need to holdaG^^^^^^^ closure hearing under
505(i)(^^^ ChapterlO). Tho last paragraph of 505(o)providos that the military judge "may
consider any other matters that relate to dassifted infbrraation or that may promoteafair and
expeditious trial." The govomment may want to argue that this language porraits, and in fact
encourages, tho militatyjudgo to use this fbmra to mlo on rdovanco and raatoriality under
M.R.E.401-403 as thoy might in other cases when the govommont seeksaMotion^^^^^^^^^^^
under R.C.M. 906(b)(13)andM.R.E.104, without tho need fbr classiftcation review and
privilege assertion. While thoro is nothing that prohibits such arguments early inadassifted
infbrmation case, there is tho issue of what to do should thoro beanood to discuss the substance
oftho dassifted infbrmation at tho motions hoaring(as opposed to just discussing its legal
signiftcance). Under R.CM. 806(b)(2), tho military judge has the discretion and authorityto
dose tho proceeding, even withoutadassification review. This possibility is discussed in more
detail in ChapterlO.

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34570

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

Government Targeted Brief
on Interplay of MRE 505,
RCM 806, and Grunden
Enclosure 3
15 March 2013

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CH^^PT^RIO
Courtroom Closures
The abilify to present dassified evidence to members at trial in a sessi^ to dosed to the public is
unique to courts martial. Closing the courtroom to present evidence to tho jury is not an option
under the Classified Infbrmation Procedures Act (ClPA) in federal court. With this authorifyto
dosethecourtroom, however, comes tho responsibility to ensure that dosures are narrowly used
in order to best uphold therightto a public trial that adheres not only to the accused, but also to
the general public. Closed proceedings are drawing increased scmtiny from the news media, ^
Thefiollowingsections discuss the history ofclosing courts martial and the cunent procedures
firor doing so,
A. History The genesis ofthe modem dassified infbrmation privilege is the Supreme Court
caseof^^^^^^^^^^^v. ^^^0^^,345 U.S. 1 (1953), In ^^^o^^, an Ah Force B-29 exploded
in mid ah in October, 1948, in the vicinify ofWaycross, Georgia. The plane was carrying a
numberofpiecesofclassifiedequipmentand, along with its military ctcw, civilian scientists and
technicians. The widows oftho civilians sued the Afr Force fbr damages, claiming that the plane
was negligentiy maintained. Indiscovery, the widows ofthe civilians iskod fbr the accident
report and the statements ofthe surviving crew members taken as part ofthe investigation. The
AfrForcorefusodtoproducothedocuments, even to the Federal Distrit Court judge, basedon
An Force regulations regarding release ofaccident reports and a fbrmd claim ofprivilege over
the infiormationfiledby the Secretary ofthe Afr Force on national sect rity grounds,^ Afterthe
trial judge entered afindingofneghgence against the government based on the refiisal to
disclose the documents to tho courL tho govemment appealed.
The Supremo Court hold that a privilege against revealing "military so rets" does exist in the law
and was validly invoked in ^^^o^^. The privilege must be invoked Ly the "head ofthe
department which has control over tho matter," at 8, and tho court n ust determine whether the
claim ofprivilege is appropriate in tho cfrcumstances, yet do so withoi^t forcing disdosure ofthe
infiormation to be protected. The Supreme Court went on to hold that there is no requirement fior
the infiormation to bo automaticaUy disclosed to tho court fbr review, e podally in a case where
witnesses were made available to testify about the non-dassified events that presumably caused
or led to the plane's crash.
at 11.^

' The Ariel Weinmann espionage case provides an excellent case in point. In that cawas held without local media in attendance. Although the proceeding was never do c<1, there were various military
personnel coming and going throughout the proceedings. When the media leamed a'out the Article 32 hearing, the
Navy was accused of holding "secret" trials. Tim McGlone, Silence Surrounds Navy's Local Court System,
Virginian Pilot, August 4, 2006, at A l . Although the media was provided a transcrij i of the Article 32 proceeding,
subsequent reporting contained an air of skepticism through repeated references to tl - earlier, "secret" proceeding.
" The Air Force did offer to make the surviving crew members available for examine'ion by the plaintiffs with the
ability to refresh their recollection from their previous statements to the Air Force, tl lugh they could not discuss
classified matters. Reynolds, 345 U.S. at 5.
^ For a recent detailed examination of the Reynolds case, including a discussion of tl o facts contained in the
accident report, which was found on the Internet by the daughter of one of the decea • d civilians, see Louis Fisher,
"In the Name ofNational Security: Unchecked Presidential Power and the Reynolds Case (2006)."
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Significantly for court martial practice, the Court distinguished the civil, tort case at issue in
^^^^/^.^froracrirainal cases stating that "it is traconsdonablo to allow[thogoyommontjto
undertake prosecution and then invoke its govomraontalprivilogos to doprivo tho accused of
anything which might bo material to his dofonso." ^^.at12. Thus, as discussed in the previous
chapter, tho romodios available under M.R.E. 505 fbr failure to disclose relevant and necessary
dassifted infbrraation areranchraorefavorable to tho accused than toaplaintiffinadvil case.
1. ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ . ^ 1 ^ . ^ ^ ^ ^ ^ ^ ^ . In court-raartial practice, tho seminal case fbr dosing tho
courtroora to the public is L^^/^^^^^^^^.^y.G^^^^^^,2M.J.116(C.M.A. 1977). Atthe
tirae G^^^^^^y^as decided, the controlling provision from tho Manual for Courts Martial
stated "all spectators may bo excluded from an entire triaL overthe accusod'sobjoction,
onlyto prevent tho disclosure ofclassifted infbrmation." M.C.M. para. 53o(1969 Rev.)
(emphasis added). That provision wont on to state that such authority must bo
"cautiously exercised" and tho right to public trial is to bo balanced with tho public policy
considerations justifying exclusion. ^^.Tho trial judge proceeded to exclude tho public
"frora virtually tho entire trial as to tho espionage charges." G^^^^^^,2M.J.at120.
Although the court'sactions wore ostensibly within the plain language of tho mle, tho
Court ofMilitary Appeals fbund that the trial judge onodby"oraploy[ingj an ax in place
of the constitutionally required scalpd."^^.
The court then went on to ostablishabalandng tost designed to ensure that the exclusion
ofthe public is "nanowly and carefully drawn."
at 121. Tho trial court is to weigh
tho reason fbr excluding the public against tho possibility ofaraiscarriagoofjustico that
might occur from such an exclusion. 7^. at 121-22. Inacase involving dassifted
infbrraation, tho prosecutor moots this "heavy burden" by demonstrating that tho material
in question has been properly dassiftod.^7^. at 122 23. Tolimit the danger ofa
miscarriage ofjustice, under G^^^^^^^,tho militaryjudgeraustcarefully consider the
scopoof tho public'sexdusion, ensuring that tho exclusions are liraited only to those
portions oftostiraony involving dassifted infbrraation.
at 123.
In order to properly balance tho corapoting interests in suchacase, tho G^^^^^^ court
recognized that discussion oftho dassifted infbrmation at issueraayhave to take place
botwoon tho railitary judge and tho parties inaprdirainary hearing dosed to tho public.
Note that the court did not iraposeapredicate requirement to deraonstrate the dassifted
nature ofthoraaterialprior to dosing tho prdirainary hearing. In its analysis ofthe enor
comraittod in G^^^^^^^ at tho trial level, tho appellate court is focused on the exclusion of
the publicfroratho presentation oftestimony and ovidonco to theraerabers.InfacLtho
^ The ^^^^^^ court makesanumber of statements that appear to leaveagreat deal of discretion to the prosecutor
as to how to prove theclassified nature ofthe material. For instance, the court first says the trial^udge must be
"satisfied ftom all the evidence and circumstances that thereisareasonable danger" of exposing national security
matters. The court then says the method u^ed by the prosecution to carry its burden will "vary depending on the
nature of materials in question and the information offered." ^^^^^^^,2M.J.at122. The court'smost definite
statement ofhow to prove the reason for excluding the public is "that the material in question has been classifted by
the proper authorities in accordance with the appropriate regulations."^^, at 123. As discussed in Chapter Seven,a
properly prepared classification review will satisfy this requirement However, it is not the only way to reach the
ftrst prong ofthe balancing test The markings, content and originator ofthe document could be sufficient to meet
the various formulations ofwhat needs to be demonstrated to the militaryjudge.
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majority rejects the dissont'scall to take into account all of the pre-trial hearings, ftnal
instmctions, and sentencing phase oftho trial and ftnd no yiolation because over 60^ of
tho trial was conducted in open session. ./^.atl20,n.2. Thus, thoro is loss concem about
amiscarriago ofjustice duo to tho dosed proceeding when it isaprolirainary hearing
outside tho presence ofthe members and conttolled by tho militaryjudge.
At the hearing, often callodaG^^^^^^^ hearing, after demonstrating the dassifted nature
ofthe material at issue, tho govemraent then must ddinoato which portions ofits casein
chiefwill involve theseraaterials.Therailitaryjudgeraustdecide on tho scope oftho
exclusion in order to ensure that only those portions oftostiraony that actually involve
classifted infbrraation will bo dosed to tho public. It is not sufftcient that thoro isafoar
orraoroprobability that thoro will bo an unplanned spontaneous disdosure ofclassifted
infbrmation. Such speculation does not justify excluding tho public from that portion of
tho testimony. ^^.at123,n.20.
2.Military Rule ofEvidence 505. Throe years afterthe G^^^^^ decision, the Military
Rules ofEvidence (M.R.E) wore promulgated. As discussed in Chapter Nino, M.R.E.
505 was derivedfrorathe House ofRoprosontativos version ofCIPA(H.R.4745). The
Analysis oftho Military Rules ofEvidence, contained in Appendix 22 oftho Manual for
CourtsMartial, providosabroakdown of the sections ofH.R.4745 that support tho
sections ofM.R.E. 505 and how tho language wasraodiftodto coraport with railitary
justice practices.
With all the procedures irabodded in M.R.E. 505,there is, surprisingly,adoarth of any
spodftc procedures on dosing tho courtroora. Tho solo reference to taking such action is
contained in subsection (j)(5), which statos "[tjherailitaryjudgeraayexclude tho public
during that portion oftho presentation ofovidoneo that discloses dassifted infbrmation."
Tho Analysis simply refers to the fact that subsection (j)coraesfrorasoction8ofH.R.
4745 and G^^^^^^^. Neither (j)(5) nor tho Analysis refers to any other section oftho mlo
that applies to tho hearing required by G^^^^^^.
Spodftcally,thoro is nothing to indicate that subsection (i) ofM.R.E. 505 is required to
bo used for tho G^^^^^^^ hearing.^ Had tho drafters intended fbr that to bo tho case, there
stircly would have beenacrossreference to stibsection(i) in either (j)(5) or the Analysis,

as there are in other soctionsofthe Rule that point speciftcally to (i). While some have
suggested that tho in caraora procedure of subsection (i) should bo the G^^^^^^^ hearing
procedure, subsection (i) is actuallyrauchraorothan thaL Subsection (i) is an evidentiary
procedure related to what ovidoncoraustbo disclosed in discovery and in what forra that
disdosurerausttake. Prior to 2004, it is not surprising that the differences botwoon
G^^^^^^^^.^ relatively liraited closure hearing and subsection (i) were loss than fully
appreciated. However, tho proraulgationofRulo fbr CourtsMartial 806(b)(2), as
discussed bolow,dariftos tho distinction.
The G^^^^^^ hearing is used to deterraine what portions oftho dassifted infbrmation
disclosed under subsection (i) will actually need to bo discussed in testimony during the
See Chapter Nine foracomplete discussion of the operation ofM.R.E.505(i).
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court-martial, requiring the exclusion oftho public. Tho subsection (i) procedure is
usually done well in advance oftrial so that tho parties have adequate time to prepare fbr
trial based on tho material tho militaryjudgeftndsto bo rdovant and necessary. The
G^^^^^^^ hearing should occur much closer to trial because it is concemed with tho
presentation of oyidonco,which tho partiesraaynot have planned out until dose to tho
time oftriaL As discussed bdow,thoro are ways to present dassifted infbrmation at trial
that do not involve oral testimony or other discussion oftho infbrmation,which would
not require exclusion of tho publicfroratho courtraartiaL In suraraary, G^^^^^^^.^
closure hearing and, as discussed bolow,tho R.C.M.806(b)(2)hoaring pertain to tho
courtroora closure process while M.R.E. 505 subsection (i) is an evidentiary procedure
that focuses on what dassifted evidence is relevant and nocossary,and, if relevant and
nocossary,what forra of discovery israostappropriate.
3. Rule for Courts-Martial 806(b)(2). In 2004, the standards fbr excluding tho public
froraacourtraartial wore dariftod and codiftodinachango to Rule fbr CourtsMartial
(RCM)806(b). Priorto thochange,RC.M 806(b)siraply said thatthe publiccould
only be excluded over tho accusod'sobjoction "only when expressly authorized by
anothorprovision ofthis Manua1"R.C.M 806(b),MCM(2002) As pointed out by
tho Analysis ofR.C.M.806(b), this language essentially refened hack to tho closure
language ofM.R.E. 505(j)(5). Tho 2004 change eliminated this limiting language and
broadened the drcurastancos under which therailitatyjudgocan dose tho proceedings,
provided that tho standard contained in R.C.M 806(b)(2) is raoL
R.C.M. 806(b)(2)codifted the standard of tho G^^^^^ lino of cases as advanced hy
(^^^^^^^^^^^.^y.^^^.^^^^,20ML 433 (CMA 1985)andBf^C,7^^y^^^^//,47M
363 (CA.A.F.1997). Those cases, as wdl as R.C.M.806(b)(2)aro discussed raore
oxtonsivdy in tho next soction,which covers tho hearing used to dose the courtroora or
Artido 32 proceeding
B. The Closure Hearing. R.C.M. 806(b)(2)offoctiyo1y supplanted G^^^^^ as the standard fbr
dosing courtsraartial, noraattertho reason.
R.C.M. 806(b)(2) Discussion(stating that tho
Rule sets fbrth "the constitutional standard"). Tho Rule placesagreat deal of discretion in tho
hands ofthorailitaryjudge,particularly because it does not dictate thoraothodofdemonstraling
the govemraent'soverriding interest.
Tho Rulo'soporation is relatively straightforward. Thorailitaryjudgecan order tho proceedings
closed ifheftrstftndsasubstantialprobability that an overriding interest will bo prejudiced by
keeping tho proceedings open. R.CM.806(b)(2)(l). In tho case ofclassifted infbrraation, tho
overriding interest is tho prevention ofharra to the national security. Tho Rule also requfres that
thorailitaryjudgeuse the G^^^^^^^ scalpel by ensuring that tho "closure is no broader than
necessaty to protect tho overriding interest." .^^.at(b)(2)(2).
Tho ftnal substantive requireraent is that thorailitaryjudgeraustconsider reasonable altomativos
to closure and ftnd that thoy are inadequate. Cortainly,tho altomativos that are available under
M.R.E.505(i) would bo viable altomativos to dosing tho courtroora. However, thoy are not tho
only altomativos available to dosing tho courtroora in the event that tho M.R.E.505(i)
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evidentiary hearing deterraines thoro is no adequate redaction, suraraary,or substitution for the
actual dassifted inforraation being prosontod to thoraerabers.Thoro aroanuraber of altomativos
to testimony fbr introducing tho actual dassifted infbrmation at trial that should bo considered
bofbro tho militaryjudge decides to close tho courtroora. These altomatiyos,which are
comraonlyusod in federal court prosecutions undortho Classifted Infbrraation Procedures AcL
are discussed inraorodetail boloy^. Finally,R.CM.806(b)(2)roquires tho military judge to
place his caso spodftcftndingsjustifying closure on tho record fbr later review on appeaL
1. Demonstrating the "Overriding Interest." As stated earlier, tho militaryjudge is
vested with broad discretion with respect to how the overriding interest is demonstrated.
This is consistent with some oftho broader language contained in G^^^^^^ as discussed
in tho section on that case above.
(a)Classiftcation Review. By far tho easiestraothodof deraonstrating tho
govommont'sovorriding interest where dassifted infbrmation is concemed is to
submitadassiftcation review. Tho potential harra to national security frora
disclosure oftho infbrraation is tho govomraont'soverriding interest in tho
dassifted infbrraation. Forpurpososofdoraonstrating this interesL onlythe
classiftcation review itsdf(tho Original Classiftcation Autfiority(OCA) afftdaviL
or tho subject matter export affidavit accompanied by the OCA letter) is noodod,
not the assertion ofprivilege by tho head ofthe military dopartraonL
Classiftcation reviews are covered oxtonsivdy in Chapter Seven ofthis
Handbook.

Practice Pointer. Again tho need to consult with tho OCAisparamotraL Thoymusfbo
consulted to detormino if fhoywill perrait tho use of thoirinfbrmation fbr litigation hdbro any
charges are prdonod and bo^ro any dassifted infbrraation is disclosed to tho defense.

(b)No Classiftcation Review. It is possible to deraonstrate tho oveniding interest
in tho dassifted infbrraation withoutafbrraal classiftcation review prepared by
theOCA. This can be done, for instance, throtigh testiraony ofawitness y^ith
sufftcient knoy^lodge and oxporionco ofthoraaterialthat ho can accurately
doscribo to the military judge tho harm to national socuritythat would rosufr frora
disclosure.^ As this isaprotrialraatter,tho witness could beausor or derivative
dassifter oftho ovidonco, as long as thoy are farailiar with tho infbrraation and
understand the raraiftcations ofits disclosure. Asarailitary judge can take
hearsay ovidonco atprotrial proceedings, .^^^M.R.E.104(a)(statingthat tho

^Forinstance,aNavy or Marine Corps intelligence offtcer can testify as to whether or not the document is properly
marked and can testity,based on his level ofknowledge, experience and training(all of which should be presented
to the court)that the materialfttswithin the categories of the executive order and describe the damage to national
security that would resultftomdisclosure. This was done forpreliminary hearings in the USMC Hamdania cases
arisingftomthe war in Iraq whenaclassiftcation review was not completed onadocument that was the subject ofa
^^^^^^^^^^^^^^^^^^ to exclude the document based on M.R.E.401.
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railitary ^^idgo is not bound by the mlos of evidence when deterraining
prdimi^^iiy questions such as tho admissibility of ovidonco or tho oxistoncoofa
privile^A), thoro is no need to have someone frora tho originating agency testify to
doraon ^ Bato the oveniding interesL This will raake it easier to ftnd local
witness ^noar tho courtraartial venue. Orthogovomraontcansubraittho
hearsay t^^stimony or afftdavit from soraoono who has discussed tho potential
damage to national security y^ith tho originating organization in order to prove the
ovorrid^AgintorosL Such an afftdaviL of course, could not substitute fbrafbrraal
classification review in support oftho assertion oftho dassifted infbrraation
privilege.
2. ^^Reasonah'cAlternatives" to Closure. The railitaryjudge next raust consider
whether thoro icany altomativos that would satisfy the need fbr tho actual dassifted
inforraation. liis not enough to review the dassifted infbrraation alone and deterraine
that it needs tc ho protected. Closing the courtroora on that basis alone would bo enor.
There must bo tconsidoration of either altematives to tho infbrraation or altomativo
methods ofpn^^^ntation in an open session thatwould not disclose tho dassifted
infbrraation. G^ily by considering altomativos can the railitaryjudge make ftndings about
why tho propo^^d altomativos are inadequate fbruso at triaL Altomativos to the actual
classifted infb o^ation, such as redacted versions, summaries, substitutions and
stipulations w^iocovorod oxtonsivdy in Chapter Nino. Those options should bo
roviowodoarl^ in tho court raartial process with the OCA. Tho parties, ospodally tho
govemraenL s' otild also bo prepared to discuss with tho railitaryjudge other altemative
raethodsofpn^^^nting tho ovidonco without disclosing its classifted substance Those
altomativos arAonly liraited by tho bounds of ono'siraagination. Tho most commonly
soon altemativAslbrprosonting dassifted infbrraation in open court are:
(a) "Si'Ant Witness" Rule. Tho most comraonlyusod raothod ofprosontation is
the "si^Ant witness" mlo. Under this sconario,adassiftod document is introduced
into ey^^^lcncoviaawitnoss who tostiftos about all tho facts, usuallyundassiftod,
needed to dotormine tho docuraents rdovanco and hearsay oxception,without
discus^Aig tho substance oftho document itself After it is introduced into
oviden e, it is then published to tho properly-clearedraerabersto review. In raany
cases, ^'^0 legal irapact or effect ofthe docuraent can then be discussed in open
courtyithoutroforonco to any oftho dassifted raaterial contained in tho
docura nL With spodftc portions tabbed and raarked, counsd can then use those
roforor^ ^s as part of their unclassifted direct and cross oxarainations about the
daraag to national security or other rdovant legal arguraonts. Introduction of
ovidoncyia tho "silent y^itnoss" mlo will involvoacortainaraountof'talking
around 'tliosubjocL so it raay bo necessary to have certain terras or concepts
reviewed hy tho OCA to ensure that thoy raay bo used in an unclassifted sotting.
It is irr^^ortant to understand that gonorallythe most sensitive portion ofany
intollig oico infbrmation is tho source and raothod frora which the infbrmation was
dorivo^^. Ifthere is need to discuss this aspect ofthe infbrraation, thoro should
always'^caroviow by tho OCA oftho proposed unclassifted terras and phrasing.

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Counsel should review cunont case law on the use ofthis method based on the
facts and circumstances oftho proposed use in any particular case.
(b) UsoofCodo Words or SpodalTorras. When the dassifted infbrraation isa
discroot piece oflnforraation, such as tho naraoofacountry involved in an
espionage case, code words or terrasraaybo used in place oftho actual
infbrraation to prevent urraocossary closure oftho courtroora. For instance,
CountryAandCountryX, could represent two countries inacase wheroAis tho
country that rocoivod tho dassifted infbrraationfrorathe service member andXis
tho country where tho transfer occuned. The substitution oftorms could bo used
fbrawholo host ofinfbrmation such as dassifted prograra names or
compartmented infbrmation. W^on such code words or terms are used, all those
who need to know tho conolation between the terra and the dassifted inforraation
would havoakoyto use during questioning, tostiraony,andarguraonL Tho key,
ofcourse, is going to bo dassifted at tho highest level oflnforraation contained on
tho sheet and will always bo an appellate exhibiL
(c) UsoofScroons and Other Methods ofDis^iso. If tho identity ofawitness is
dassifted, but tho substance ofhis testiraony is noL then it is possible fbr tho
witness to testifyfrorabohindascroon or in light disguise. Whonusingascroon,
it is norraallyanayod so that therailitaryjudge,raerabersand tho parties can see
tho face oftho witness, but his visage is blockedfrorapublic viewing. This issue
has conio up in at least one case arisingfroratho GlobalWaronTenor in tho case
ofaNavy SEAL charged y^ithabusingadotainoo.
(d) Iraa^ory. Classifted iraagory can bo prosontod in open court inanurabor of
different ways. One option is to place tho poster board oftho iraage in sucha
raannor that only those with clearances are able to soo tho iraago,with those in tho
public gallery unable to soo tho imago depicted. Then, ifthe details that are being
described are unclassifted, tho public may hoar tho description ofwhat occuned
without seeing tho graphic depiction. Thisraothodis ospodally offoctivo fbr the
photo used asadoraonstrative exhibiL but would also y^orkfbradassiftod
photograph introduced into evidence. Ifintroduced into evidence, sirailar to
doctiraents,acla^sified photograph cotild be simply printed and distrihtited to the

raombors and treated as any other piece ofclassifted infbrraation. Another option
to present dassifted iraagory,or other dassifted information fbr that matter, is tho
use ofcourtrooraraonitors in those locations so equipped. Again, useof such
technology needs to bo caroftillyraonitorod and understood, ospodally tho need
fbrdassiftod coraputer oquipraont ratherthan tho standard equipraont used. Tho
screens alsoraustnot be visible to the public gallery. Finally,apartfrorathe
coraputor/drivocorabination, thororaustbeareviow to ensure that tho other
corapononts oftho systom do not have nonvolatileraoraorychips, i.e.,raoraoty
that retains tho infbrmation toraporarily stored thoro until tho next infbrmation
replaces iL Volatileraoraorydumps tho data as soon as tho component has
completed using tho memory.

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3. Building the Record. Finally,R.CM.806(b)(2)roquiros thorailitaryjudge make
caso-spodftcftndingson tho rocordjustifying closure fbr review on appeaL Thisis
especially iraportant in any case in which tho accused has consistentlyraaintainedhis
right toapublic trial and objected to sorao or all closures oftho proceedings.
C. Special Considerations for the Article 32 Hearing. 1n^^C^^^.y.^^^^//,43M.J.363
(C.A.A.F.1997),thoU.S.Court of Appeals fbrthe Armed Forces mled: "Todaywomakeitdear
thaL absent'cause shown that outy^oighs tho value of oponnoss,'tho military accused i s . . .
entitled toapublic Artido 32 invostigativo hearing." ^ ^ i ^ ^ / / ^ . ^ holding moans that tho Artide 32
appointing authority and pretrial investigating offtcer no longer have unbounded discretion to
order Artido 32 investigations dosed to tho public. It alsoraoansthat tho parties cannot stipulate
or otherwise agree to dose proceodings.Tho process fbr dosing an Artido 32 investigation anda
court-raartial is idonticaLThoro are no "shortcuts"or otherraoansof dosing an Artido 32 other
than tho process described above under R.CM. 806(b)(2). Tho investigating officerraustbo sure
to consider reasonable altomativos to dosing tho hearing. Ho should also consider bifurcating
witnesses testiraony into open and dosed portions, dosing only that portion ofawitnoss's
testiraony that contains dassifted inforraation. Final1y,the investigating offtcer, like the railitary
judge,raustbo sure to put tho reasons for any closure on tho record. Arocont case that illustrates
the pitfalls of closing anArticle 32 investigation iraproporly is ^^^y^^.^^.^^y.(^.^.^^^C^^^^^^
^^^^^^^^^^.^,ARMYM1SC20041215 (ACCA,23Fobmary2005)(UnpubOp)
As discussed in Chapter Nino, it IS also very probloraaticfbraconvoning authorityto attorapt to
order an Artido 32 to bo ontiroly open or dosed. Tho accusedraustbo allowed to present
ovidonco to tho investigating offtcer. The hotter course is to direct tho investigating officer to
bring requests to use dassifted infbrraation to tho attention of tho convening authority fbr
resolution.
D. ClosingtheCourtroom:TheLogistics Oncetherailitaryjudgohasdotonninodthonood
fbradosod session, precautions nood to bo taken to ensure tho security oftho infbrraation to bo
discussed in tho courtroora, induding tho proper handling oftho record oftho proceeding.
Priorto entering tho dosed session at trial, thorailitaryjudgemust work closely with tho
courtroom security offtcer to ensure that tho hearing room is properly secured and that all
persons present have the requisite clearance and "need to know." Therailitaryjtidge should
address those issues on tho record. Tho militaryjudge and courtroora security offtcer need to
consider tho circurastanco of each courtroora sotting in deterraining what measures need to bo
taken. Some oftho most commonraeasuresthat should be considered are:
1 Posting guards y^ith proper clearance level near entrances to tho courtroom if there isa
possibility that tho proceedings raay bo hoard near tho doors.
2. Post signs outside tho courtroora stating that tho court is in dosed session.
3. Ensure that any security caraeras or video foods to locations outside tho courtroom are
shuf down ifdassiftod infbrraation is visible to tho caraoras. Even if dassifted
infbrmation cannot bo soon on tho video food, any accompanying audio feed should
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always be secured because the reason for holdingadosod session is to present oral
testiraony in court.
4. Switching tho systora used to record court procoodtngs so that thoro is no mixture of
open and dosed sessions on tho same media.
At tho start ofthe dosed session, tho militatyjudgo should state, or have whichever side is tho
proponent oftho infbrmation state, tho classiftcation level fbr the record. Before adjourning
frora tho dosed session tho militaryjudge shall again have counsel who has introduced tho
dassifted infbrraation conftrra tho appropriate classiftcation level fbr tho record. W^on shifting
fromadosod session, tho military judge should takoarocoss of sufftcient length to permit the
previously iraploraontod securityraoasuroto bo roraovod. Speciftcally, tho courtroora security
officer and railitaryjudge should ensure that
1. Tho court roportorproperly marks and secures tho dassifted tapes or other media used
to record tho proceedings and any notes taken by tho court reporter during tho dosed
session.
2. Counsd ortho court security offtcer secures any dassifted infbrraation, induding
exhibits published to tho members ormomhernotos.
3. Tho bailiffroraovos any signs placed outside tho courtroora and ensures that tho
guards know that tho courtroora has rooponod.
E. Plannedv.Unplanned Closures Tothis poinL tho discussion has concerned plarraing fbr
known closures where tho dassifted infbrraation at issue has boon vottod and tho ftndings
required by R.C.M. 806(b)(2)hayo boon made in advance oftho courtmartiaL But it raay bo tho
case thatalino of questioning inadvortontly contains orraight cause dassifted infbrraation to be
disclosed in open sessions. Ifthis should occur, procedures need to bo in place to prevent tho
accidental disclosure ofclassifted infbrraation and to apply tho standard o f R C M . 806(b)(2).
Tho military judgo^should consider spoiling out tho procedures to be used inaparticular case in
aprotedivo order and tho parties should bo farailiar with tho ordor'scontonts and the railitary
judgo'soxpoctations with respect to unplanned closures.
An "unplanned closure" will occur when counsd, the court security offtcer, equity owner
subject raatter oxport,witnoss, or other individual informs tho military judge oftho nood fbra
dosed session if tostiraony"strays toward disclosure of dassifted infbrraation when testiraony is
given in open sossion.".O^^y^^^^.^^C^^.y.L^.^.,Array Misc. 20041215 (23 Febmary
2005)(Unpub.op.at4). This raay result frora tho person recognizing thataquestion contains
classifted infbrraation or calls foradassiftod answer. Often tho security officer will havoaproanangod signal or device that can bo used to indicate to tho judge that this danger is prosonL
Witnesses should ho advised that if thoy hdiove that an answer toaquostion, or tho question
itself, may involve dassifted infbrmation, to notify the railitary judge immodiatdyinadiscroet
manner.
^Although "militaryjudge"!^ used throughout this section, it should be understood that the same procedures would
apply at an Article 32 proceeding,where there is an investigating officer instead ofamilitary judge.
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The military judge should then iraraodiatoly halt the tostimony,quostioning or argumenL No
reason should bo given on tho record at that time as to tho reason fbr halting tho proceedings.
Thorailitaryjudge should proceed to holdaconforonco under R.CM. 802 with tho security
offtcer and tho parties in orderto deterraine whether thoro is, in facL suspected dassifted
infbnnation at issue. As counsel often do not have oxporioncoy^ith tho dassifted infbrmation at
issue, it maywell bo that thoy did not intend fbr tho question to ovokoadassifted answer. In
suchacase,asimp1o reminder instmction to tho witness to keep his answer tradassiftod will
usually bo sufftdonL
If thoro is, indood,adosiro on tho part of oneofthe parties to discuss classifted infbnnation that
has not previously boon tho subject ofadosuro hearing under R.C.M 806(b)(2), tho railitary
judge should proceed y^itha39(a) session outside tho presence of theraerabersin order to raake
the deterrainations required by R.CM. 806(h)(2). Iftho 39(a) session itselfis dosed, the
railitaryjudge should bo sure to include an unclassifted summary ofhisftndingson tho
unclassifted record. Even in tho middle oftrial, it is necessary to consider reasonable
altomativos to tho use oftho dassifted infbnnation. Gonorally,it is normally possible fbr the
witness to raise the factual level ofhis testimony so that tho infbrmation is more generic and tho
source is obscured, i.e., provide unclassifted testimony.
Finally,all parties at the trial should be awareoftho possibility that when members pose
questions duringatrial that involves dassiftedraattors,aquostioncould prompt an answerthat is
dassifted. Tho bettor practice is to have all writtenraerabersquestions roviowod by tho court
security officer bofbro thoy are provided to tho judge so that tho court security officer can alert
tho judge ofwhether tho question pososarisk in open court. This allows thejudge to reraind tho
witness to ansy^or in an unclassiftedraarraor,and to instmct tho witness to simply alert thejudge
iftho witness needs to ansy^or with dassifted infbnnation. Tho court security officerraaybo
able to assist thejudge in slight rewording ofquostions to avoid those issues all together.

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UNITED STATESOF AMERICA
DEFENSE TARGETED BRIEF
ON CLOSURE: GRUNDEN,
MRE 505, and RCM 806.

V.

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

21 MARCH 2013

RELIEFSOUGHT
1. Tho Dofonso requests this Court ftnd that tho procedures outlined in tho Militaty Rules of
Evidence (MRE) 505(i) bo followed when makingacourt dosing doformination under Rule fbr
Courts Martial (RCM) 806(b)(2)
THE LAW
2. RCM 806(2)ostahlishos that court "shall be open to the public unless(1)thero isasubstantial
probability that an oveniding inforost will ho prejudiced iftho proceedings remain open; (2)
closure is no broader than necessary to protect the oveniding interest; (3)roasonab1o altomativos
to closure wore considered and fbund inadequate; and(4) the military judge makes caso-spodftc
ftndings on tho rocordjustifying closure."
3. Tho discussion fbr this mlo olahorafos,"[aj session may bo dosed over tho ohjodion oftho
accused or tho public upon mooting tho constitutional standard sot fbrth in this Rule." Tho
discussionft^rthorroforspradifionorsto MRE 505(i).
4. MRE 505(i) sots fbrth the procedure the Govommont must follow when requesting court
closure. Pursuant to MRE 505(i)(2),"tho Govommont may move fbr an ^^^^^^^^ proceeding
conceming tho use at ^^^(omphasis added) proceeding of any dassifted information." Upon so
moving the Govemment must establish the nafional security nature oftho information by
submitting tho ovidonco, and an afftdavitfo tho militatyjudgo
MRE 505(i)(3).
5. Iftho Govommont is able to moot tho burden ofMRE 505(i)(3), subparagraph (i)(4)(A)
establishes the procedure fbr tho ^^^^^^^^ proceeding. It statos:
Upon finding that the Government has met the standard set forth in subdivision
(i)(3) with respect to some or all of the classified inlbrmation at issue, the
military judge shall conduct an ^^^^B^^^^ proceeding. Prior to the ^^^^B^^^^
proceeding, the Govemment shall provide the accused with notice of the
information that will be at issue. This notice shall identity the classified
infbrmation that will be at issue whenever that infbrmation previously has been
made available to the accused in connection with proceedings in the same case.
The Govemment may describe the information by generic category, in such
formasthemilitaryjudgemay approve,rather than identilying the classified
infbrmation when the Government has not previously made the information
available to the accused in connection with pretrial proceedings. Following

APPELLATE EXHIBIT SO"^
PA( REFnil
PAGE
OF
PAGES

34582

briefing and argument by the parties in the ^^^^^^^^^ proceeding the military
judgeshalldetermine whether tbeinformation may be disclosed at the courtmartial proceeding. Where the Government'smotion under this subdivision is
ftled prior tothe proceedingatwhichdisclosureissought,themi1itaryjudge
shall rule prior to the commencement ofthe relevant proceeding.

ANALYSIS
6. Tho Govorrunont has roquosfod closure oftho Court during the testimonies ofvarious
witnesses.
Appellate Exhibit 479 and the Supplement to Prosecution Closure Mofion dated
15 March 2013. Tho Defense objects to tho Govommont'sroquost for closure and requests this
Court order an ^^^^^^^^^prooooding, as contemplated hy MRE 505(t), bo hold toprovide this
Court with the infbnnation necessary to make tho informed decision and spodftc mling required
by RCM 806(b)(2). Tho plain reading of tho Rules fbr Courts Martial and Military Rules of
Evidence supports the Dofonso position that tho procedures sot fbrth in MRE 505(i) should bo
followed y^hon tho Court is considoringaGovommont request fbr closure.
7. RCM 806(2)ostab1ishos thaf court "shaft bo open to the public unless(l)thoro isasubstantial
probability that an oveniding interest will he prejudiced iftho proceedings remain open; (2)
closure is no broader than necessary to protect tho oveniding inforost; (3)roasonahlo altomativos
fo closure wore constdorod and fbund inadequate; and(4) tho military judge makes caso-spodftc
ftndings on tho rocordjustifying closure." Thus, when making ifs spodftcftndingsthe Court
must bo able to articulate what reasonable altomativos wore considered and why those
altematives were not adequate. Tho Govommont must provide moro spedftdty than it has ahout
tho dassifted information it intends to elicit from tho 28 identifted witnesses in order fbr this
Court to consider aft reasonable altomativos fo closure.
8. While tho main text offhe Rule offers no guidance to tho Court as to howto go ahout making
amling regarding altomativos to closure, the Rulo'sonsuing discussion does. Itsfatos,"[aj
session may bo dosed over tho objection oftho accused or tho public upon meeting tho
oonsfifutional standard sot forth in this Rule. ^^^^/.^^MiLR.Eyid.412(o),505(i),and
513(o)(2)."^ It is thus dear from tho Rulo'sdiscusston that tho drafters intended MRE 505(i) to
servo as the Court'sgutdtng light when constdoringaGovommont court dosuro request in tho
context ofadassifted infbrmation case.
9. RCM 806(b)(2)and its discussion codify "military case law that has applied tho Supreme
Court'soonstitutional tost fbr closure focourt'smartial."
Analysis to RCM 806. As such, it
is instmctivo to review tho catalyst of this change to tho RCM, tho mling in (^.^.y.G^^^^^^,2
M.J.116(C.MA.1977). Tho court in G^^^^^^ hold fhafadosod preliminary hearing should bo
used when applying the constitutional tesL .^^.af 122. Tho court hold,"[tjho prosecution to moot
this heavy burden must demonstrate the dassifted nature, if any,of tho materials in question. If
must then dolinoafo those portions ofits case which wift involve those materials." 7^.
10. It cannot bo coinddonco thaf tho dosed proliminaty session contemplated by the G^^^^^^
court boarsastrikingrosomhlance to tho process outlined in MRE 505(t). G^^^^^^ requires the
^MREs4l2and513,which deal with sex offense cases and psychotherapist^patient privilege respectively,are not
relevant to the instant discussion.

34583

Govommont to demonstrate tho dassifted nature offhe infbrmation.
Meanwhile, MRE
505(i)(3)roquiros the Govommont fo "demonstrate that disclosure oftho infbrmation reasonably
could be expodod to cause damage to tho national security in the degree required to wanant
dassiftcafion." G^^^^^^ requires tho Govommont fo "delineate those portions ofits case which
wift involve those materials." 2M.J.atI22. Likewise, MRE 505(i)(4) mandates that the
Govemment "shaft provide the accused with notice oftho information that wift ho at issue. Tho
notice shaft identify tho dassifted information that wift bo at issue whonovorfhat information
previously has boon made available to the accused in oormodton with proceedings in tho same
case."
11. This interplay botwoonRCM 806 and MRE 505(i) makes logical sense because if gives tho
Courtaproooss through which to make its RCM 806 mling.Tho language of505(i) does not
limit its application only toaGovommont invocation of tho Classifted information privilege, nor
does it limit tho applicafton to discovery. Indeed, MRE 505(i)(2) states that tho mlo applies to
tho use ofclassifted infbrmation at any proceeding. Tho Rule fhrthorolahoratos that it should he
employed uponashowing of good cause oradaim ofprivilege. One way in which the
Govommont can show the good cause contemplated hysuhsodion(i)(2)ishydomonsfraftng the
national security nature of tho infbrmation as described in subsection (i)(3)of tho Rule. Tho
requirement in 505(i)(3)minors the roquiromont ofRCM 806(b)(2)(l). Thus, satisfaction of
RCM 806(b)(2)(1)would qualify as the good cause required to triggerafull MRE 505(i)
proceeding.
12. RCM 806(h)(2)(3)roquiros tho Court to consider aft reasonable altomativos fo closure.
MRE 505(i)(4)(A)proyidos thoframeworkforthose considerations. MRE505(i)(4)(A)
ostahlishos,"[pjrior to tho in camera proceeding, tho Govomment shaft provide the accused with
notice oftho information that wift bo at issue. This notice shaft identify tho dassifted
information that wift be at issue whonovor that informafion previously has boon made available
to tho accused in connection with tho proceeding in tho same case." Hero, the infbrmation in
question has either boon provided to PFC Marming or the Defense team has had access to the
infbrmation. Thus, the Govommont must identify the spodftc dassifted infbnnation fbr which
they are requesting closure. It is only through this spodftc identiftcation that aft parties can
engage in tho meaningful oonsidorafionofalfomativos as required hy RCM 806(h)(2)(3). In
light of tho Govommont'slatost closure ftling, tho parties should condudahearing in acoordanoo
with MRE 505(i) todiscuss altomativos to tho idontiftcations made by tho GovemmenL Further,
tho Dofonso believes that the Court'sprevious recommendation ofatrialmnwithawitnoss is
one thaf would beneftt aft parties and should ho hooded. Atrial run would give tho Court and tho
parties the ability to appreciate tho practical realities ofboth closure and the implementation of
altomativos.
13. Tho Govommont has dtod tho Nayy's"primor" fbr how to ttyadassiftod infbrmation case
in support of^its argumenL Tho Navy's"primor" is simply tho Navy Judge Advocate's
recommendation on how to ttyadassiftod ovidonco case. Given fhe lack of case law in this
area, the "primer" is no dtfforont than fhis motion; it is an inforprotivo analysis oftho Manual fbr
CourtsMartiaL With rospod to tho interplay hofwoonRCM 806 and MRE 505,the Dofonso
holiovos tho Navy "primer" has it wrong. Conspicuous in its ahsonoo from tho Navy's analysts is
roforonoofo tho discussion ofRCM 806(h)(2), which spodftoallyroforoncos MRE 505(i). While
tho similarities botwoon tho roquiromonts ofRCM 806 and MRE 505 alone imply RCM 806's

34584

reliance on tho procedure outlined in MRE 505(i), tho spodftc roforoncofo 505(i) inRCM 806's
analysis makes oxplidt this reliance. By failing to consider, or even acknowledge, fhis explicit
link between the fy^o Rules, the Nayy's"primer" fails in its analysis ofRCM 806 and MRE
505(i)
14. Tho G^^^^^^ court discussed tho nood fbraproltminaty hearing to dotormine tho
appropriateness of^ court closure. Tho process described by tho G^^^^^^ court is minorodh^ the
process outlined in MRE 505(i). Tho draftorsoffho Rules fbr CourtsMartial amondodRCM
806(b)(2) to codify what has boon established by militaty case law,indudingG^^^^^^.
Analysts fo RCM 806. Tho drafters ofRCM 806 also madoadirodreferoncofo MRE 505(i) as
part oftho Rulo'sdisoussion.
Discussion to RCM 806. Because tho procedure fbr litigating
G^^^^^^isminorodhyMRE 505(i),RCM 806(h)(2)codiftosthocasolawostablishodby
G^^^^^^ and its progeny,and because tho discussion to RCM 806(h)(2)spodftcallyroforoncos
MRE 505(i), if is dear tho procedures sot fbrth in MRE 505(i) should he employed by tho Court
in makingadosuro doformination underRCM 806(h)(2).
CONCLUSION
15. As indicated above, tho Dofonso respectfully requests tho Court employ the proooduros sot
fbrth in MRE 505(i) when makingacourt closure dotorminafton under RCM 806(b)(2).

J(^UAJTOOMAN
CPT,JA
Defonse Counsel
Icertify thaflsorvod or caused to bo sorvodatmo copy of tho above on MAJ Ashden
Foin,yia electronic mail, on21 March 2013.

JOS^AJT^MAN
CPT,JA
Defense Counsel

34585

UNITED STATES OF AMERICA
GOVERNMENT'STARGETED
BRIEFON REASONTO BELIEVE"
ELEMENT IN 18 U.S.C.^793(e)
Manning, BradleyE.
PFCU.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

29March2013

The United Statos, by and through undersigned counsel, provides tho fbllowing brief
reiterating and clarifying its position on tho elements of18U.S.C.^ 793(o), and tho difference
hofwoen the "documents" and "infbrmation" clauses in tho statute. This ftling will also briefty
address tho issues raised by dofonso counsel during oral argument at tho Artido 39(a) session on
26 Febmary 2013. Tho issue is ripe fbr consideration hy the Court because tho accused's
providonoo inquiry ostablishod every olomont oftho charged spodftoations alleging misconduct
in violation ofl8U.S.C.^ 793(o),wifh tho oxcoptton of tho "national dofonso information" and
"reason to boliovo" dements. However, in oases involving tangible items relating to the national
dofonse-induding digital computer dooumonts^tho United Statos is not required to prove tho
accused had "reason to boliovo" the tangible items "could bo used to tho irijury oftho United
States or to tho advantage of any foreign nation."
PREVIOUS FILINGS ADDRESSING THE ISSUE
In tho Govommonf'sRosponso to the Court'sClariftcation ofRuling on Lesser-Indudod
Offenses, dafodl6Noyomhor 2012,tho Govommont wrote:
However, under 18 U.S.C. ^ ^93(o), tho Govommont is not
required to prove that tho accused had reason to believe tho
information "could ho used to tho injury of tho United States"
when tho accused had unauthorized possession of any "documenL
writing, code hook, signal hook, sketch, photograph, photographic
negative, bluoprinL plan, map, model, instmmonL applianoo, or
note relating tothe national dofonso." ^^^18U.S.C.^ 793(o). In
other words, tho "reason to boliovo" sdontor requirement only
applies tointandble infbrmation relating tothe nationaldofonso,
not the tangible items listed above, ^^^^^^^^^^^^^^.^y.^^^^^^^^^^,
2012WL4903319,at^l(EDVaOd16,2012)("1mportanfty,^
793[oj diffbrontiafos botwoon 'tangible' NDI, described in the
'documents' dauso (^any documenL ... or note relating to tho
national defense'), and 'intangible' NDI, dosorihod in the
'information' dauso ('information relating to the nafional
defense')"); (^^^^^^^^^^.^y..^^.^^^,445 F Supp. 2d 602,612
(E.D. Va. 2006) ("Second, Congress expanded the category of^
whafoouldnotbooommunioatodpursuantto^^ 793(d) and(o)fo

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PAGEREFERENCED:^^
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34586

include'information relating to tho national dofonso,'hut modifted
this additional item by addingasdontor requiremenL...").
Appollafo Exhibit391. Tho Govommont'sargumont was that tho proffered speciftcations (in
tho dofonso plea) wore directly analogous foaviolationofl8U.S.C.^ 793(e) fbr purposes of
calculating tho maximum punishment fbr tho each speciftcation.
In tho Govomment'sRosponse to the Aoousod'sProfforod Statement and Associated
Instmcfions, dafod14Fobmary 2013,the Govommont wrote:
In an abundance ofoaution,theUnitod States requests tho Court
instmof tho accused during the providence inquity that under tho
"documents" or "tangthlo items" clause o f l 8 U S C ^ 793(o), tho
Govommont is not required to prove that the accused had reason to
holioyo tho infbnnation transmitted "oould bo used to the injury of
the United Statos." In other words, tho "reason to boliovo" sdontor
roquiromont only applies totntan^iblo information relating fotho
L^^^^^^^ ^^^^^.^ y.
2012 WL
national defense.
4903319, at ^1 (ED VaOcL 16, 2012) ("hnportant1y,^ 793[oj
difforontiatos between 'tangible' NDI, descrihed in tho
'documents' dauso (^any document, ... or note relating to tho
national defense'), and 'intangible' NDI, dosorihod in tho
'information' dauso ('information relating to fhe national
defense')."); (^^^^^^^^^^^.^y.^^.^^^,445 F.Supp. 2d 602,612
(E.D. Va. 2006) ("Second, Congress expanded tho category of
what oould not bo oommunioatod pursuant to ^^ 793(d)and(o)fo
indudo'information relating to fhe national dofonso,'but modifted
this additional item by addingasdontor requiremenL...");(^^^^^^^
^^^^^.^y^^^^^,818FSupp2d909,916-17 ("AsthoGovommont
points ouL however, Dofondant'sbriofoonftatos tho different ^^^.^
requirements required fbr criminal violations involving tho
'documents' dauso and tho 'information' dauso of Section
793(e)...Thus,only the second'infbrmation'dause requires proof
oftho'reason to bolioyo'element.").
Appellate Exhibit 496. Aside from tho Govomment'sdte to additional authority on 14
Febmary 2013 (tho .^^^^^ case above), tho twoftlingsaddressing the targeted issue are
ossontiallythesamo.
ADDITIONALAUTHORITY AND ANALYSIS
Because tho documents and videos charged in this case are tangible items, the
Govorrmient is not required to prove that the accused had reason to beltovo the charged
documents, records, and videos "oould ho used to tho tnjuty offhe United States orto tho
advantage of any foreign nation" in order to ostablishaviolationofl8U.S.C.^ 793(e).

34587

18 U.S.C. § 793(e) reads:
Whoever having unauthorized possession of, access to, or control
over any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model,
instmmonf, appliance, or note relating to the national defense, or
information relating to the national defense which information the
possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully
communicates, delivers, transmits, or causes to bo communicated,
ddivorod, or transmitted, or attempts to communicate, deliver,
transmit, or cause to bo communicated, ddivorod, or transmitted
the same to any person not entitled to receive it, or willfully retains
the same and fails to deliver it to an officer or employee entitled to
rocoivo it;
18 U.S.C. § 793(e) (emphasis added). The statute has two different clauses: a "documents"
clause and an "information" clause. See 18 U.S.C. § 793(e). The "documents" clause includes
the enumerated, tangible items described in tho statute. The "reason to boliovo" olomont only
modifies tho "information" clause, an interpretation of the statute which is supported by its plain
reading and cases that have examined this issue. For example, tho trial court in United States v.
Morison stated that tho "plain language" of §§ 793(d) and (e) supported the Govommont's
interpretation of tho intent requirement—namely, the "requirement [that the possessor must have
"reason to boliovo" tho information could bo used to the injury of tho United States] is not
present for the delivery or retention of photographs or documents." United States v. Morison,
604 F. Supp. 655, 658-59 (D. Md. 1985), affd, 844 F.2d 1057 (4th Cir. 1988). In a later opinion
in Morison, the trial court further dariftod that tho "reason to boliovo" olomont is not required by
tho statute under tho "documents" clause:
It is also worthwhile to note, for tho purpose of clarity, that tho ftrst
half of both parts (d) and (e) of 18 U.S.C. § 793 defines the types
of items or information which is unlawftil to either retain or
transmit. It defined all kinds of tangibles: "any document,
writing...or note relating to the national defense," and also
describes intangibles: "information relating to tho national defense
which information the possessor has reason to believe could be
used to tho injury of the United States or to tho advantage of any
foreign nation." The language "has reason to boliovo" does not
create a subjective tost for tho entire statute and does not change or
modify the meaning of willfulness. Instead, it modiftes and
explains what type of information is included within tho statute's
scope.
UnitedStates v. Morison, 622 F. Supp. 1009, 1010-11 (D. Md. 1985), aff'd, 844 F.2d 1057 (4th
Cfr. 1988).

34588

This reading oftho statute is also compdiod bythe stmduroof^ 793(o). In tho statute,
tho phrase "nafional dofonso" is repeated, onoo fbr tho "documents" dauso and again fbr tho
"infbrmation" dauso. ^^^18U.S.C.^ 793(o). However, tho "reason to boliovo" language
appears only onoo, modifying tho word "information." 7^. Further, thoro is no comma after
"infbnnation relating tothe nafional dofonso,"suggosting that "reason fo believe" modiftes
"infbrmation" only. Tho result ofthis plain roadingmakosporfodsonso in the context oftho
statute. Section 793(o)provtdos fbr different sdontor roqutremonfs depending on the character of
tho national dofonso information at issue in the case. In oases involving documents, digital or
otherwise, tho accused must transmit tho infbrmation "willftilly." Tho statute recognizes that an
accused wift roadilyunderstand thatadocument or enumerated item relates to tho national
dofonso based on ifs contonL design, or markings. In fhis case, tho documents, records, or videos
af issue were either conspicuously marked with dassiftoations or downloaded from dassifted
systems. Intangiblo(orallytransmitfod) or derivative "infbrmation"(suoh as infbnnation ouf and
pasted from an original dooumont)doos not share these same oharadoristics—thus, tho statute
requires an accused fo also have "reason to beliove" tho infbnnation oould ho usedto tho injury
oftho United Statos.
This interpretation ofthe statute is also supported by tho logislativo history. Indeed, in
discussing tho legislative history offhe 1950 amendments tol8U.S.C.^ 793(o),Jusfioo White in
tho Pentagon Papers case stated that "[ijtsoomsdoar...that in prosooufing fbr oommunioating or
withholdinga'dooumont'asoontrastod with similar adion with respect to'information'tho
Govommont nood not prove an intent to injure the United Statos or to bonofttafbroign nation but
only willful and knowing conduct."A^^)^^^ 7^^^^.^ C^.y.^^^^^^^^^^^^.^,403 U.S.7
(1971)(Whito,J.,oonourring)(dtsousstngS.Rop.No.2369,pLl,81stCong,2dSoss,8-9
(1950) ("Tho phrase'which information tho possessor has reason to hdiove oould bo used to the
injury ofthe United States or to tho advantage of any foreign nation'would modify only
'information relating to tho national dofonso'and not the other items onumoratod in tho
subsodion.")); .^^^^/.^^ Endosure I,at4and7.
ANOTEON^^^L^ANDD^.^
During oral argument on 26 Febmary 2013, dofonso counsel argued that hooauso tho
^^^^/^ and .^^^^.^ opinions discussed the "reason to belieyo"element in cases alleging misconduct
in yiolation of18U.S.C^ 793(o), it fbllows that the Govommont must prove the element in
order to ostabltshayiolationofl8U.S.C^ 793(o). This argument has no meriL In those oases,
trial counsel chose to charge the accused under the "infbrmation" clause.^ ^^^L^^^^^^^^^^^.^y.
^^^^/^,2011WL414992 (AnnyCtCrimApp);(^^^^^^^^^^^^yD^^^,69MJ127(CAAF^
2010); .^^^^/.^^Endosuros2(^^^^^ Charge Shoot)and3(^^^^/^ Charge Shoot). Aooordingly,tho
rdovant spodftoations in those cases included tho "infbrmation" sdontor roquiromont and the
Govommont was required to prove that olomont in order to ostahlishaviolafion of tho
spoctftoation. Furthermore, this particular defense argument is uniquely misleading, as tho ^^^^/^
opinion dearly and oondsolyoxp1ainod,whilo receding tho assertion that "reason to boltovo"
meant "bad faifh,"that18U.S.C.^ 793(o)doftnod two typos of nafional dofonso information
^At least in the ^^^^^ case, the Covemment assumes that trial counsel proceeded under the "information" clause
because the list of detainee names and information,when printed ftom the JDIMS system,were not marked witha
classiftcation label ^^^^^^^^,69M.J.at130. In this case, all the documents were marked with classiftcation labels.

34589

(NDI): "a. 'documents, writing.. .or note,' or b. 'information the possessor has reason to boliovo
could be used to tho injuty of the United Statos or to the advantage of any foreign nation.'"
Steele, 2011 WL 414992, at *3 (emphasis in original). Additionally, appellant's counsel in
Steele acknowledged tho difference between the two types of NDI. Id. In short, the Diaz and
Steele cases only conftrm the difference botwoon the "documents" clause and tho "information"
clause in tho statute.
ON THE NATURE OF "INTANGIBLE INFORMATION"
According to tho defense, computer ftlos or documents are not among tho tangible,
enumerated items in tho statute. See 18 U.S.C. § 793(e) ("WTioevor having unauthorized
possession of, access to, or control over any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model, instmment, appliance, or note
relating to the national defense...."). Instead, tho defense assorts that computer ftles are
intangible information. Interostingly, tho Govommont notes tho Steele court certainly thought
that computer ftlos wore tangible. See Steele, 2011 WL 414992, at *4 ("Hero, tho ovidonco
clearly showed that appellant unlawfiilly retained physical, tangible computer files and
documents containing NDI and not "intangible" information as in Rosen."). This court has also
indicated that for purposes of Rule for Courts-Martial 701(a)(2)(A), emails are not intangible,
but "documents" within tho moaning of tho mlo. See Appellate Exhibit 494, at 33 ("Although
the Defense discovery request stated 'documents' and not 'emails', emails can be 'documents'
for purposes of RCM 701(a)(2)...."). In short, there is no authority for tho defense proposition
that a computer document, memorandum, or ftlo is not a "document" or other tangible item
within tho moaning of 18 U.S.C. § 793 unless if is in paper form. The defense position on this
point is untenable.
CONCLUSION
Under the facts of this case, tho Court can ftnd that the accused violated 18 U.S.C. §
793(e) by transmitting documents and videos relating to tho national defense without ftnding that
the accused had "reason to boliovo" tho information could bo used to tho injury of the United
Statos or to the advantage of any foreign nation.

>dm5MrM0R^^^
XPT, JA
Assistant Trial Cotmsel
Enclosures
1. Logislativo History
2. Diaz Charge Shoot
3. Steele Charge Shoot

34590

I certify that I served or caused to be served a tme copy of tho above on Mr. David E. Coombs,
Civilian Defense Counsel, via eloctronic mail, on 29 March 2013.

AA^^V^
^ D E A N MORROW
CPT, JA
Assistant Trial Counsel

34591

UNITED STATES OF AMERICA
V.

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

GOVERNMENT'S TARGETED
BRIEF ON "REASON TO BELIEVE "
ELEMENT IN 18 U.S.C. § 793(e)
Enclosure 1
29 March 2013

1 to
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34592

Cakodar No. 418
CJ0NORE88 V
1st Session
f

SOTH

SENAl'E

i
|

REPORT

N o . 427

INTERNAL SECURITY OF THE UNITED STATES

M A T 27 OegielaUve day, M A T 28). 1949.—Ordered to be printed

Mr. EASTLAND, from the Committee on th« Judiciary, submitted
tbe following

REPORT
(To atcomp&ny 8. 595)
The Committee on the Judiciary, to whom wae referred the bDl
(S. 595) relating to the intemal security of the United States, having
considered the same, report favorably thereon with an amendment in
the nature of a substitute, and recommend that the bill, as amended,
do pass.
AMENDMENT

Strike all after the enacting clause and insert the following:
That title 18, United States Code, section 793, be, and the same is hereby,
amended to read as follows:
"(a) 'Whoever, for the purpose of obtaining information respecting the national
defense with intent or reason to believe that the information is to be used to the
injury of the United States, or to the advantage of any foreign nation, goes upon,
enters, flies over, or otherwise obtains information conceming any vessel, aircraft,
work of defense, navy yard, naval station, submarine base, fueling station, fort,
battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine,
telegraph, telephone, wireless, or signal station, building, oflBce, or other place
connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of
any of its ofllcers, departments, or agencies, or within the exclusive jurisdiction of
the United States, or any place in which an^ vessel, aircraft, arms, munitions, or
other materials or instruments for use in time of war are "being made, prepared,
repaired, or stored, under any contract or agreement with the United States, or
any department or agency thereof, or with any person on behalf of the United
States, or otherwise on behalf of the United States, or any prohibited place 80
designated by the President bV proclamation in time of war or in case of national
emergency In which anything for the use of the Array, Navy, or Air Force is being
prepared or constructed or stored, information as to which prohibited place the
President has determined would be prejudicial to the national defense; or
"(b) Whoever, for the purpose aforesaid, and with like intent or reason to
believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or
obtain, any sketch, photograph, photographic negative, blueprint, plan, map.
model, instrument, appliance, document, writing, or note of anything connected
with tbe national defense; or

34593

^

^ ^ E ^ A ^ 8E^URIT^ ^F T ^

I^tTED ^TATE^

^(e) Whoever^ for the purpose aforesaid^ receives or obtains or agrees c^
attempts to ret^eive or obtain frora any person, or frora any source whatever, an^
document, writing, code book, signal book, sketch, photograph, photographie
negative, hluepriiit, plan, map, raodd,instruraent, appliance, or note, of anything
connected withthe national defense, knowing or having reason to believe, at the
tirae he receives or obtains, or agrees or attempts to receive or obtain it, that it has
been or will be obtained, taken, made, or disposed of by any person contrary to the
provisions of this chapters or
"(d) Whoever, lawfully having possessionof,aeeessto,eontrolover, or being
entrusted with any doeument, writing, code book, signal hook, sketch, photograph,
photographic negative, blueprint, plan, raap, model, instrument, appliance, or
note relating to the national defense, or information relating to the national
defense which information thepossessor hasreason tobelieyeeould be used to
the injury of theUnited states or to the advantageof any foi^eign nation,willfully
coraraunieates, delivers, transmits or causes to be eomraunicated, delivered, or
transniittedor attempts to eommunieate, deliver, transmit creative tobeeomniunieated, delivered, or tran.'^mitted the stiiiie to ^ny ^^er^on not: entitled to
reeeiveit.or will^ttllvretnins the same and fdls to deliver it ondeinund tothe
odicer or employee of theUnited states entitled to reeeiveit^ or
"(e) ^yiioever having unauthorised possession of, aeeess to, or control over
anydoeuraent, writing,eodebook, signal book, sketch, photograph, photogr^ph(e
negatiye,blue^rint,plan,map, model, instrument, applianee,or note relating to
the national defense,or inforraation relating tothe national defensewhieh information the possessor has reason tobelieve eould be used to the injury of th^
United States or tothe advantage of any foreign nation,willfully eomraiinieates,
delivers, transmit.^ or causes to be eoraratinieated, delivered, ortransmitted, or
attempts toeoraratinicate, deliver,transraitoreausetobeeoramunieated, delivered, or transmitted the same to any person not entitled to receive it.oi^willlulfy
retainsthesameandfailstodeliver it to the oflieer or employee of the United
states entitled to receive it^ or
"(f) Whoever, beingentrusted wither havinglawfulpossessionoreontrolof
^ydoeuraent,writing,code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, raap, model, instrument, appliance, note, or inform
'raation,relating to the national defense,(I) through gross negligence permits the
^araetobereraovedfroraitsproperplaeeof custody or delivered to anyone in
yiolation of his tru^t,or to he lost, stolen,abstraeted.or destroyed, or (^)haying
knowledge that the same has been illegally removed frora its proper place d
custody or delivered to anyone in violation of his trust, or lost, or stolen,
abstracted, or destroyed, and fails to make prompt report of sueh loss, theft,
abstraction, or destriietion to his superior ollieer—
"Shdlbe fined not raore than^IO.OOO or irapiisoned not raore thantenyears,
or both.
"(^) If two or raore persons conspire to violate any of the foregoing provisions
of this section, andoneor raore of sueh personsdoanyaettoelfeetthe object
of theeon^piraey. etiehof theparties to sueheonspfraeyshallbesiibjeettothe
punishment providedfor the oftense which is the object of sueh conspiracy.
^1^0.2, An indictmentfor any violationoftitlel^.United St^tesCode. section
^92, 70^,or 704, raay be found at anytime within tenyears ne^t after sueh violas
tion shall have been eoraraitted. This section shall not authorise prosecution,
trial,or piinisliraent for any olfense now barred by the provisions ofe:^isting law.
S^c. ^. The Act of June 8, 10^8 (^^^tat. 0^1^^^ U.S.C.t^IIt^^I),entitled
^An At^t torequire theregislration of certain persons employed by ageneiesto
disseminate propaganda in the United States, and for other purposes", as amended,
ia hereby further amended as follows:
(a) Strike outtheword"and'^at the endofseetionl (e) (^),inserttheword
^and" at the end of section 1 (e) (^). and add thefollowing subsection immediately after section 1 (e) (4):
^^(^) any per.^oii who has knowledge of or has received instruction or
assignment inthe espionage, counterespionage, or sabotage service or tactics
o f a governraent of aforeign country or of aforeign political party, unless
sueh knowledge, instruction, or n^^i^^^iraient has been acquired by reason
. . of eiviliaii, railitary.or poii^e^eBvi^ev.ithiheUnitedl^ttite.^Ccyerra^ioi^^
governraentsof the several^tates,^their political subdivisions, the Distriet
of Colurabia, theTerritories, theCanal^one,or the insular possessions,or
unless sueh knowledge has been acquired solely by reason of academic
or personal interest not under the supervision of or in preparation for se^yi^
with the governraent of a foreign country br a foreign political party e^

34594

ETERNAL 8 E 0 t J R I ^ ^ F T ^ IGNITED ^ A ^ l ^

^

traless, by reasonof employment at any tiraeby an :^geney of theUnited
states Covernment having responsibilities in the ^eld of intelligence, sueh
personhasraadefull writtendiselosute of sueh knowledge or instruetionto
oftieials within sueh agency, sueh disclosure has been raade a matter of
reeord in the ftles of sueh agency, and a written deterraination htis been
raadeby the Attorney Generalor theDireetor of Central Intelligence that
registration wouldnot be inthe interest of nationalsecurity.^^
(b) Add the following sitbseetion immediately after seetion8(d):
"8. (e) Failure toftle any suehregistration statement or supplements thereto
asis required byeither sections (a) or sections (b) shallbeeonsideredaeon^
tinuing olfense for as long as sueh fdlure exists, notwithstanding any statute of
liraitation or other statute to the eontraryB^
^^0. 4. (a) Whoever willfully shall violate an^suehregulation or order aa,
pursuantto lawfulauthority, shall be orhasbeenproraulgatedor approved by
the Secretary of Defense, or by any railitary eorarannder designated by tho
secretaryof Defense.for theproteetionor security of railitaryor naval aircraft,
airports, airport facilities, vessels, harbors, ports, ^iers, w^ater-front facilities,
bases. forts.po.^^ts.ltthoratories.stations.yehieles. equipment, explosives, or other
property or places subject to the jurisdiction, administration, or inthe custody
of the National Military F^stahlishraent, any Departraent or agency of which
said F^stablishraent consists, or any oftieer or eraployee of said Establishraent,
Departraent or agency,relating to ftre hazards.ftreproteetion, lighting, raaehinD
ery. guard service, disrepair, disuse or other nnsatisfaetory conditions thereon,
or the ingress thereto or egress or removal of persons therefrora. or otherwiso
providingfor safeguarding the same againstdestruetion, loss, orinjury by aeei^
dent or by enemy action, sabotage or other subversive actions, shall be guilty
of araisdemeanor anduponeonvietion thereof shallbeliabletoaftne of n o t ^
exceed ^5,000 or to iraprisonraent for not raore thanoneyear. or both.
(h) livery sueh regulationor order shallbeposted inconspicuous and approx
priate places.
(e) Intime of war.or national eraergeney as proclaimed by the President, the
provisions of this section raay be extended byPresidentialproelaraation to in^
elude sueh property and places as the President raay therein designate in the
interest of nationalsecurity.
(d) If anyprovisionof this section or^theapplieationof sueh provisionto any
circumstance shall be held invalid, the validity of thereraainder of this section
and the application of suehprovision to other cireurastanees shall not be alfected
thereby.
^t^t^t^O^^ OF A M E N D M E N T

l^ngeneral, thepurposeof theamendment is to mal^e thehill, a^
intro^uce^l,confortntotlie concern of the sponsor ^tidsubconiniittee
about the deletion of certain subject matter an^ to the changes
necessitated by the evii:lencc brought out in the hearings. The
quantum and comiolcxifv of the mdiyidualamcn^lmenfs warranted
the entfrerewiitingof the legislation that it may bereported with
one amendment iutlicnature of asubsfitute.
Specifically, the amendment accomplishes the following (takeni^
chronologicalorder of sccfions and subsections)^
^^c^^^^^,^t^^^^B:^^^^ (^)

The words ^^or Air li'orce^^haveheen inserted following the word^
Army orNavy^^on line 17, page^,of tliebill as introduced, The
purpose of this^amendment is to include places in which anything
being preparedoi constructed for the Air^orce, as well as places in
which anything is heingpreparedor constructed for the Army and
Navy. The reasonfor this isthattheAirF^orcehashecomeasep^^
aratc entity since the original enactment of the esioionage statutes.
Eollowing the word^^whiclB^ found on page ^,line IS, of the hill ai^
introduced there has been inserted the words ^^prohibtted place^^.
The puri^ose of this second amendment in suhsectton(a)is purely for
elarity indicating to what the word^^which^^refer^^

34595

^

INTERNAL SECURITY OF THE UNITED STATES

Section 1, 9ub8ecHon (b)
No change from the bill as introduced.
Section 1, subsection (c)
No change from the bill as introduced.
Section 1, subsection (d)
Following the word "which" found on page 3, line 17, of the hill Aa
mtroduced there has been inserted the words "information the
possessor has reason to believe". The purpose of this amendment is
to require some degree of scienter in order to constitute a violation
of the subsection insofar aa the unlawful transmission of "information"
ia concerned.
Following the word "nation" found on page 3, line 19, of the
bill aa introduced there was deleted all down to and including the
word "transmit" found on line 20 of the same page of the bill as
introduced and was inserted in lieu thereof the following:
willfully communicatee, delivers, transmits or oausea to be communicated,
delivered, or tranaraitted, or attempts to communicate, deliver, transmit or
cause to be communioated, delivered, or transmitted.
The purpose of this amendment is to include the delivery, as well
as communication or transmission of the items included in the subsection, and also to include those persons who would cause such
communication, delivery, or transmission as well as those who actually
communicate, deliver, or transmit such items.
Section 1, subsection (e)
The same amendment is made following the word "nation^ on page
4, line 5, of the bill as introduced as made in the second amendment
in section 1, subsection (d), immediately above.
Section 1, subsection (/)
Following the word "model" found on page 4, line 14, of the .hill as
introduced there has been inserted the words " instrument, appliance,".
The purpose of this amendment is merely to add instruments and appliances among the items enumerated in the subsection.
On page 4, line 21, of the bill aa introduced the word "actually" has
been aeleted. The purpose of this amendment is merely to eliminate
the word "actually" as superfluous.
On page 4, line 22, of the bill as introduced the word "thereof" has
been deleted, and there has been inserted in its place the words "of
Buch loss, theft, abstraction, or destruction". The purpose of this
amendment is merely for clarity and does not change the substance of
the subsection.
Section i, subsection (^i)
On page 5, line 1, of the bill as introduced there has been deleted
the wordT "the" and inserted in lieu thereof the words "any of the
foregoing". The purpose of this amendment is merely for clarity and
does not change tne substance of the subsection.
Since the remaining sections of the bill as introduced and sections
of the substitute amendment are not comparable because of consideN
able change in the sectional numeration, the following changes will
he considered by page and line reference to the bill as introduced.

34596

O^ERNAL SECURITY 0^ THEUNITEDSTATES

^

Onpage5of the hill as introduced, sectlon2has been deleted en
toto. Thepurpoi^eof this amendment is to deleteasection which
a^^ears superfluous, inasmuch as the prosecution of allFederalo^ensea
ts under the direction of the Attorney GeneraL
O n p a g e 5 , l i n e l l , o f thehillasintroduced,thentmieral"3"har
been strucl^ andthe numeral"2" inserted in lieuthereof. ThepurD
pose of this amendment is merely to renumber the section.
Onpage 5, linel3,of thehill as introduced, thewords"without
regard to anystatuteoflimitations."have heen deleted,and there haa
heen inserted in lieu thereof the words "withinlOyears next after such
violation shall have beencommitted." The purpose of this amende
mentia to provideastatute of limitations of lOyears with respect to
^ e prosecution of espionage violations, rather than removingsuch
violations from the statute of limitations entirely aa originally pro^
posed.
Gnpage5,line l7,of thebillasintrodnced,thenumeraI"4"haa
been struck andthe ntm^eral"3" inserted in lienthereof. Thepur^
pose of this amendment is merely to renumber the section.
^nadditlonto certain minor technical amendments, thefollowing
hasbeenaddedtoline9,page0,after changing the semicolonto a
comma:
the governments of the several states, their politleal subdivisions, the Distriet of
Oolumbla,theTerritories,theCanaL^on^, andthe insularpos^e^oas, or unleea
sueh knowledge has been acquired solely hyreaeoti of aeaderale or personal interest
^ot under the supervision of or in preparation for service with the governraent of
aforeign countryoraforeign political party
The purpose of this amendment is to mclude withiuthe proviso or
e^ceptionthoseenumeratedthereininthe belief that there should be
no intention to includesuchpartiesnorwouldtheirinclusion contribute
to the intemal security of the country.
Following the word "party" in the amendment immediately above
there has been added the additional words as follows:
orless,byreasonoferaployraentatany time by an agency of theUnitedStates
Covernraenthaving responsibilities in thefteldofintelIigenee,suehperson haa
madefullwrittendlselosureof sueh knowledge or instruction to offtcials within
sueh ageney,sueh disclosure has been madearaatter of reeord in the ftles of sueh
agency, and a written deterraination has been made by the attorney Ceneral
or the Director of Central Intelligence that registration would not be in the
Interest of national security.

Thepurposeof this amendment is merely to add another category
of persons who would not he requiredto register under the section.
, On page 0,line 12,inthe bill as introduced,there has been deleted
everything after the word "file" down through and including the
word"and"on line 13 and there has been inserted in lieu thereof the
following: "any such registration statement or supplements thereto
as is required by either section 2 (a) or." The purpose of this
amendment is merely for clarity and does not change the substance
of the section.
On page 0, line 17of the hill as introduced,delete section5in toto.
The wire-tapping provisionhasheen stridden since the sponsor and
your committee experienced concern both as to the advisability of
enacting such a section and as to the propriety of joining it with
amendments tothe espionage laws. After some constiltationitwaa
decided to introduCeabill in the nature ofasuhstitute which omitted
wire-tapping and on which the hearings were held.

34597

^

INTERNAL SECURITY C F T ^ E UNITED STATES

On pageSof the hill as introduced, commencing with and including
line 23, strike out the remainder of the hill and insert the following in
lieu thereof:
^^c. 4. (a) Whoever willfully shall violate any sueh regulation or order as^
ursuant to lawful authority,shall he or has been promulgated orapproved by tho
eeretary of Defense, or by anyrailitaryeoraraander designated by the Secretary
of Defense^for the protection or security of railitary or naval aircraft, airports,
airportfaeilities. vessels, harbors, ports, piers,water-front facilities.bases, forts,
posts, laboratories, stations, vehiele^. equipraent, explosives, or other property
or places subject to the jurisdiction, administration, or in the custody of tho
National Military F^stablishraent, any Departinentor agt^ney of whichs^id l^stabli^hraent consists, orany ofticerbreraployeeof said l^stablishraent, Departraent, oragency.relating to ftre hazards, ftre protection.lighting, machinery.guard
service. di^^iepair.disuse,or other unsatisfactory eonditioii^^ thereon, orthe ira^ress
thereto or egres.^ or removal of persons therefrom, or otherwi.^e providin^^^ for
safeguarding the same againstdestruction. loss, or in^ur^^ by aecidentor by eneray
action.sd^ot^.ge or other siibver.^ive actions.shall be guilty ofami.'^deineanor and
upon conviction thereof shall be liable to a ftne of not to exceed ^o.OOO or td
ii^prisonraent for not raoro than one year.or both.
(b) livery sueh regulation or order shall be posted in conspicuous and appropriate places.
(e) Intimeof war.or national emergency as proelairaedbythePresident.the
provisions of this seeiion raay be extended by Presidential proclamation to
iheludesueh property and placesas thePresident raay therdn designate inthe
Interest of national security.
(d) If anyprovisionof this section or the applicationofsuehprovi.^iontoan^
eireumstanee shall be held invalid, the validity of thereraainder of this section
and the application of suchprovision to other circumstances shall not bo alfected
thereby.

P

Thepurposeof thisamendincnt is focombinesectionsO and 7of
the bill as infrodt^ccd info one section, covering the protection of both
water and air facilities,rather than liavingascioarate section for each
facility. Tlieamcndmental^omakc^itclcar tliat,exceptintimeof
war or nafional emergt^ncy, flicprovistonsof tliescctionsliall apply
only tomilitaiy property. Sccfion Sof thehillhasbeen deleted as
superfluous.
8^^^^^^^tENT

The bill wasintroduccd attlierequestof the Attorney Gcncralof
the United States and has been draftcdto carry out the recommenda^
tions of tlicl^utcrdcpartmciitall^ntclligeticcGommittcc,composcdof
representatives of ^^ilitaryl^ntclligencc and flicFcdcral bureau oflnD
vcsfigafion of the L^cpartmcnt of Justice. The recommendations
reflect conclusions which were unanimously reached by thelntcrdeD
partmenfal l^ntclligcnce Gommittcc, after a thorough study of the
provisions and inadequacicsof existinglaw, bcginningin 1945, and^
arebascdonthcnecdsandcxpcricnccs of tlieinvcstigative agencies
during hotli^Vorld^Varllandpcacctime.
The ftrst section of the substitute amendment would amend the
fourthparagraphof title 18,United StatcsGodc,scctton 793 (subsec. 1 (d) of the bill), to provide that only those who have lawful
possession of the items relating to nattonal defense enumerated
therein shall he subject to its provisions. This is proposed in view of
tliefacttliatareftisal to deliver such itcmsinrcsponsctoaproper
demand therefor is an clement of an olfense under existing law,
whereas it is deemed advisable that those who have unauthorized
possession of such items should be subject to the provisions of a

34598

INTERNAL SECURITY O F T ^ E UNITED STATES

^

separate subsection, as hereinafter explained, and required to surrender them to the proper authorities regardless of the demand
therefor.
The first section of the substitute amendment would also amend the
fourth paragraph of title 18,United States Code,section 793 (subsec.l
(d) of the hill) to include"information relating to the national defense,
which informationthepossessorhasreasonto helievecouldheused
to the injury of the United States or to the advantage of any foreign
nation" among theitems of which the unauthorized transmissionor
retention would be unlawful. The phrase "which information the
possessor has reason to helieve could be used to the injury of the
United Statesor to theadvantageofanyforeignnafion"would modify
only"information relating to the national defense"and not the other
items enumerated in the subsection, f t is deemed advisable to
broaden thesuhsection to include such information, in order to render
the law more effective against unauthorizedtransmissions and retenD
tions which may not come within the existingspecifically enumerated
items hut which are considered nonetheless dangerous to the national
security.
The first section of the imhstitute amendment would amend title IS,
United States Gode, section 793, to provide (suhsec. 1 (e) of the
hill) that those who have unauthorized possession of the items enumerated therein must surrender possession thereof to the proper authorities
regardlessof ademand tht^refor. ^xistinglaw provides no penalty
for the unauthorized possession of such items unless a demand for
themis madehy thepersonentitlcd toreceive them. The dangers
surrounding the unauthorized posse^ionof the itemsenumeratedin
this statute are self-evident, and it is deemed advisable to require
their surrender in suchacase,regardless of dernand, especially since
their unauthorised possession may be unknown to the authorities who
would otherwise make the demand. lnsummary,theonlydiffereence between subsection 1 (d)andsuhsectionl (e)of titlel8,United
States Gode, section 793, if amended as indicated, would he that a
demandhy the person entitledto receive the items wouldheanecessary element of an offense under subsection ! (d) where the possession
is lawful, whereassuchademand would not beanecessary element of
an offense under subsectionl(e) where the possession is unauthorized.
The first section of the substitute amendment would amend title
18,United States Code,section793,hyaddingaprovision (subsee. 1
(f)(2))to provide for the punishment of those who are entrusted with
the items relating to national defense enumerated therein and who
have knowledge of, hut fail to report, the loss, theft, abstraction,
destruction, or unlawful transmissionof suchitems. The danger of
such an item,e.g.,acode book or plan of operation, being lost, stolen,
or compromised bythe enemy or prospective enemy,needs no em^
phasis. As an illustration, it is now common l^nowledge that our
compromise of an enemy coding system was an important factor in
our defense and operations agamst the enemymthe early and vital
stages o f ^ o r l d ^ a r l L l^tisnot unreasonable to assume that the
advantagewouldbe reversed should an enemy compromiseacoding
systemof theUnitedStates. Theexisting law provides nopenalty
for thefailuretoreportsuchl^owle^ge by those entrusted with the
above items.

34599

^

^ N T E R N A L S E C U R I T ^ C F T ^ UNITEDSTATES

The ^ t section of the substitute amendment (suhsec. 1 (g)^
wouldamend title 18,United StatesGode,section 793,toprovidea
penalty,identicaltothepenalty provided foraconspiraeytoViolate
section 794,foraconspirac^ to violate section 793. There appears to
be no reaaonwhyaconspu^acy to violate election 793 should not be
aimilarly punishable a^aconspiracy to violate section 794.
The nrst section of the substitute amendment would designate the
aeveral paragraphs of title IS, United States Gode, section 793, aa
aubsections "(a)" through "(g)" for purposes of convenie^^treferetice.
Section2of the substitute amendment would provide tlatanindict^
mentforthe violation of section 792,793,or 794 of title l^,Untted
States Gode, could he found within 10 years after the commission of
auch violation. Under existing law (IS U.S.G.3282)^ the statute of
Ihnitationswithrespecttoaviolationof section 792,793,or 794 in
peacetime is only3years. Aviolation of section 794 duringwar constitutesacapital offense and is therefore not subject to the statute of
limitations (18U.S.G.3282). Inviewofthefactthataviolationof
Bection 792, 793,or 794 duringeitherpeaceor war maynot bede^
tected, or the identity of the violator discovered, tintil more than3
years after the violation was committed, e. g., until hostilities cease
and the records of the enemy are accessible, it is considered advisable
to amend the existinglawso that the prosecutionof an espionage
violation may be instituted within 10 years after the commission of
the violation. Suchan amendment would also permit theprosecu..
tion andconsequentpublic disclosures of suchoffensestoheheld in
abeyance, for strategical purposes, pending the detection and apprehension of other offenders who may also be involvedmthe same or
afhliatedespionagering. The amendment,of course,hccause of the
constitutionalbar against ex postfacto criminal laws,would not authorise the prosecution or punishment of an offense which is already
barred hy existing law.
Section3(a)of the substitute amendment would amend theForeign
AgenfeRegistration Actof JuneS, 1938, asamended (22 U. S. G.
011^21),by addingasubsectionl (c) (5)immediately after subsect i o n l ( c ) ( 4 ) ( 2 2 U . S . G . fill (c)(4)) to require the registration of
persons who have l^nowledge of, or have received instruction or assignment in, the espionage, counterespionage, or sabotage service or tactics
ofaforeign goverrimentoraforeign ^ohtieal party,unles^ suchknowledge or instruction has heen acquired by reason of civilian, military,
orpoliceserv^ce with theUmted StatesGovernment or the government^^ of the severalStates,or unless such knowledgehasbeenac^uired solely by reason of academic or Dersonal interest not under the
supervision of, or in preparation for,service with the government ofa
foreign country or aforeignpolitical party, or unless, by reasonof
employmentby an intelligence agency of theUnited States Government, such person has made ftul disclosure of such knowledge or
instructiontoo^cials within such agency.
Under e:^istinglaw,apersontrainedby aforeign government for
purposes of espionage or sabotage is immune to prosecution provided
there is no substantial evidence of his having violatedthe espionage
laws, and he is inno way obliged to divulge either his intentions or the
very useful information which is peculiarly within his l^nowled^e,
information which if acquired by our counterintelhgence agenctea
could spell tha difference between success and catastrophe in counters

34600

INTERNAL SECURITY C F T ^ E UNITED STATES

^

acting theplansand tactics of anenemy. Examplesof those who
would come withinthis category are those whose operations may defy
detection and those who may be dispatched to this country for
purposes of espionage or sabotage and who either postpone their
operations until an opportune time or, for fear of apprehension or
other reason, abandoned their mission. The amendment would servo
a threefold purpose, namely, to discourage further the unknown
presence of potentialspiesand saboteurs; toprovideabasis for the
prosecutionof unregistered potential spies and saboteursbeforethey
committ an act of espionage or sabotage^and to assistthis Governs
ment in its counterintelligence work by acquiring the information
regarding foreign espionage and sabotage systems and tac^cs that
would be disclosed by those who elected toregister rather than run
the risk of prosecution for not so registering.
Section3(b)of the substitute amendment would amend theForeign
AgentsRegistrationActby adding the subsections (e)immediately
after subsections (d) (22U.S.G.018 (d)) toprovidethatafailure
to fllearegistration statement or supplements thereto as required by
sections2(a)or2(b)(22U.S.G.012(a)(b))shallbeconsidereda
continuing offense for as long as such failure exists, notwithstanding
any statute of limitations or other statute to the contrary. The
purposeof this subsection is to permitthe prosecution of an offender
at any timeduringtheperiodhecontinuestodisregard the statute
andnotmerelywifhina3yearperiod from the time that he first
hecame subject to thelaw and should have registered but failed to
do so.
Scction4of the substitute amendment wotddprovideamaxtmum
penaltybfa^5,000 fine andlyear imprisonment for the willful violation of regulations or orders promulgated by the Secretary of E^efense
respecting the protection of military property. A s i ilarlaw,respecting the protection of vessels and waterfront facilities, approved July9
1943 (50 App. U . S . G . 1312), existed d u r m g ^ o r l d ^ a r 11, hut ex^
pred by reason of its own provision on June 30, 1947. The section ia
deemed advisablemorder to provide protection for military property
from both accidental and deliberate danger. The section would also
provide that in time of war,or national emergencyasproclaimedby
the Fresident, the provisions may he extended by^residentialproclaD
mation toinoludesnchpropertv and places as the Fresidont may designate inthe interest of national security.
The entirehill as amendedhy your committee has been draftedto
serve the needs of the departments of Justice, the Army, the Air
Force, and the Navy in ^esuccessftd discharge of their responslD
hility to protect and improve the intemal security of the Nation.
The swift and more devastating weapons of modern warfare, coupled
withthe treacherous operations of those who would weaken our counD
try internally,preliminary to and in conjunction with external attacl^,
havemade it imperative thatwe strengthen and maintain an aler^
and elective vigilance.

Unmarked redactions were present when Army received this document
34601

UNITED STATESOF AMERICA
V.

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

GOVERNMENT'S TARGETED
BRIEF ON "REASON TO BELIEVE'
ELEMENT IN 18 U.S.C. § 793(e)
Enclosure 2
29 March 2013

2- -to
APPELLATE E X H I B I T J L ^
PAGE REFERENCED:^
PAGE
OF
PAGES

34602

CHARGE SHEET
I. PERSONAL DATA
3 RANK/RATE

2. SSN

1. NAME OF ACCUSED (L.ast. FirsL Ml)

4. PAY GRADE

CM

Diaz, Matthew M.

LCDR

5. UNIT OR ORGANIZATION

6. CURRENT satvice
a. INtTIALDATE

Region Legal Service OlTice Southeast Jacksonville, FL

b. TERM
INDEFINITE

8. NATURE Of RESTRAINT OF ACCUSED 9. OATE(S) IMPOSED

7. PAY PER MONTH
a BASIC
b. SEA/FOREIGN DUTY

.

mmm
10,

CHARGE:

c TOTAL

r

.J

None

None

IL CHARGES AND SPECIFICATIONS
Violation of the UCMJ, Article 92

%

Specification 1: In that Lieutenant Commander Matthew M. Diaz, JAGC, U.S. Navy, Region Legal
Service Office Southeast, Jacksonville. Florida, on active duty, did, at or near Guantanamo Bay, Cuba,
behween on or about 20 Deceraber 2004 and 28 February 2005, violate a lawful general regulation, to
wit: SECNAVINST 5510.36, Department ofthe Navy (DON) Information Security Program (ISP)
Regulation, dated 17 March 1999, as modified by change 1, dated 19 June 2000, by wrongfully failing
to properly safeguard and store classified SECRET information in his possession, by wrongfully
possessing and storing said classified information at locations not authorized for such storage.
Specification 2: In that Lieutenant Commander Matthew M. Diaz, JAGC, U.S. Navy, Region Legal
Service Office Southeast, Jacksonville. Florida, on active duty, did. at or near Guantanamo Bay, Cuba,
between on or about 20 December 2004 and 28 February 2005. violate a lawful general regulation, to
wit: SECNAVINST 5510.36, Department of the Navy (DON) Information Security Program (ISP)
Regulation, dated 17 March 1999. as modified by change 1, dated 19 June 2000, by wrongfully failing
to properiy transport or mail classified SECRET information, by wrongfully mailing said classified
information via first class mail.
Specification 3: In that Lieutenant Commander Matthew M. Diaz, JAGC, U.S. Navy, Region Legal
Service Office Southeast, Jacksonville, Florida, on active duty, who knew of his duties at or near
Guantanamo Bay. Cuba. beWveen on or about 20 December 2004 and 28 February 2005. was derelid
in the performance of those duties in that he willfully failed to safeguard classified information, as it
was his dutyto do.
1 la. NAME OF ACCUSER (ijst First. Ul)

Accus^^^ y

IIL PREFERRAL
c ORGANIZATION OF ACCUSER
b. GRADE
LT. JAGC,
COMMANDING OFFICER. REGION LEGAL SERVICE
USN
OFFICE, MID-ATIANTIC
e. DATE

JUL 0C

AFFiUAYi I; Before me, the undersigned, authorized by law to administer oaths In cases of this character, personally appeared the
above named accuser this o f ' - ^ day of JULY . 2006. and signed the foregoing charges and specifications under oath that
he/she is a person subject to the Uniform Code of Military Justice and that he/she either has personal knowledge of or has
investigated the matters set forth therein and that the same are true to the best of his/her knowledge and belief.
COMMANDING OFFICER. REGION LEGAL SERVICE
OFFICE, MID-ATIANTIC
ofOtTicer
Oryanccattm of OASeer
LT, JAGp. USN
Grtd^^i Service

CIVIL LAW A1T0RNEY
Offioar Ctpaol/to Adirnhister 04tfij
(See RCM 307(bh-tntst be commissioned oOce/i

W

-V
DO FORM 45a

^

"T?

i4(um

S/N 0102-LF-000-45

34603

CONTlNl^ATlONOFCl^^RGESlCOLCORMB^TTl^E^M.DIA2.J^GC,LiSN
ChargelL ViolationofthoOCI^J^^rtlde
Specification: InthatLieutenantCoraraanderMatthewM. Diaz, J^GC. US. Navy, Region LegalService
Office SodheasL Jacksonville. Florida, on active duty, did. at or oearGuantanamo Bay. Cuha.heh^een on or
ahout 20 Deceraher 2004 and 28 Fehruary 2005, wrongfully and dishonorahly transmit dassified documents to
an unauthorized individuaL
Charge III: Violation o f ^ L I C I ^ J . ^ r t i d e l ^ 4
Specificationl: In that Lieutenant Commander Matthew M.Diaz. JB^GC. U.S.Navy, Region Legal Service
Office SoutheasL Jacksonville, Florida, on active duty, did, atornear Guantanamo Bay Cuha.hetwe^n on or
ahout 20 Deceraher 2004 and 28 Fehruafy 2005. for the purpose ofohtaining inforraation respecting the
national defense of the LInited States of America, with intent or reason to helieve that the said information was
to he used to the injury ofthe LInited States or to the advantage ofaforeign nation. violatoTitle 18. Doited
States Code. Sedion 79^(1^), hy knowingly and willfully raakingaprint out of classified SECRET information
connected with the national defense.
Specification 2: lnthatLieutenantCommanderMatthewM.Diaz.JAGC. US. Navy. Region LegalService
Office SoutheasL Jacksonville, Florida, on active dutydid, at ornearGuantanamo Bay. Cuha.hetween on or
ahout 20 Decemher 2004 and 28 Fehruaiy 2005. having authorized possession of, access to, and control over
information relating to the national defense ofthe Dnited States ofAmerica,which information the said
Lieutenant Commander Matthew M.Diaz had reason to helieve couk^ he usedto the injury ofthe LInited
States orto the advantage ofaforeign nation.violate Title 18. LInited States Code. Section 793(d). hy
knoi^ingly and willfull^communicating classified SECRET infomiation relative to national defense t o a ^
not entitled to receive said inforraation.
specifications: In that Lieutenant Commander MatthewM.Diaz, JAGC, LI,S.Navy,Region LegalService
Office SoutheasL Jacksonville, Florida, on active duty did, at or nearGuantanamo Bay Cuha.hetween on or
ahout 20 Deceraher 2004 and 28 Fehruaiy 2005, having unauthorized possession of, access to. and control
overinforraation relating to the national defense of the United States of America, which inforraation the said
Lieutenant Commander MatthewM Diaz had reason to helieve could he used to the injury of the Dnited
States or to the advantage ofaforeign nation,violateTitIo 18,United States Code, Sedion79^(e).hy
krio^ingly arid willfully commuriicatirig classified SECRET information relative to national defense toaperson
not entitled to receive said infdrmation.
Specification4: InthatLieutenantCommanderMatthewM.Diaz.JAGC, U.S. Navy, Rogion Legal Service
Office Southe^sL Jacksonville. Florida, on activo duty, did. at or noar Guantanamo Bay, Cut^a.t^otw^oo on or
ahout 20 December 2004 and 28 Fehruary 2005. violate Title 18. United States Code. Sedion 1924. hy
hecoraing possessed, hy virtue ofhis office, of materials containing classified inforraation of the United States
and knowingly removing such raaterials without authority and with the intent to retain such raaterials at an
unauthorized location.

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



34604

TARGETED
BRIEF ON TO
ELEMENT IN 13 U.s.c. 793(e)

Enclosure 3

29 March 2013

3 +0

PAGE
FAG PAC

0 34605

UNCLASSIFIED
CHARGE SHEET
I. PERSONAL DATA

1. NAME or ACCUSED (Last, First, Midde Initial) 2. ssu 3. cmoe on RANK 4. PAY GRADE

STEELE. William H. - LTC 0-5
5. UNIT OR ORGANIZATION 8. CURRENT SERVICE

Headquarters and Headquarters Company. 89th Military Police Brigade 15??

Camp Victory. Iraq APO AE 09342 I333i8?a4. Indef
7. PAY PER MONTH 8. NATURE OF RESTRAINT OF ACCUSED 9. IMPOSED
a. BASIC SEAIFOREIGN ourv c. TOTAL

3 ?33? 3 Pretrial Con?nement 5 March 2007
$7.379'.1o $100.00 $7.47;l.1o I
II. cmmces AND SPECIFICATIONS .9

10. CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 104

THE SPECIFICATION: In that Lieutenant Colonel William H. Steele, U.S. Army, did. at or near Camp
Cropper, Iraq, on divers occasions between on or about 1 October 2005 and 31 October 2006. aid the
enemy by providing an unmonitored cellular phone to high value detainees.

CHARGE VIOLATION OF THE UCMJ, ARTICLE 134

THE SPECIFICATION: In that Lieutenant Colonel William H. Steele, U.S. Army, did at or near Camp I
Cropper, Iraq. between on or about 31 October 2006 and 22 February 2007, having unauthorized I
possession of information relating to the national defense of the United States of America, which
information the said Lieutenant Colonel William H. Steele had reason to believe could be used to the injury
of the United States or to the advantage off a foreign nation, violate Title 18, United States Code, Section
793(e), by knowingly and willfully retaining the same and failing to deliver it to the officer or employee of
the United States entitled to receive it.

-- see CONTINUATION SHEET - I

PREFERRAL
11:. NAME or ACCUSER (Last. First, amaze Inllial) b. GRADE c. ORGANIZATION or ACCUSER

MICHAEL S. GALLOUCIS COL HHC. 89th Military Police Brigade
I d. stem 30??

AFFIDAVIT: Before me, the undersigned, a thorized by law to administer oaths in cases of this character, personally
appeared the above named accuser this day of and signed the foregoing charges
and speci?cations under oath that helshe is a person subject to the Uniform Code 0 Military Justice and that helshe either
has personal knowledge of or has investigated the matters set forth therein and that the same are true to the best of hislher

knowledge and belief.
HOWARD T. MATTHEWS JR. HI-IC, MULTI-NATIONAL CORPS-IRAQ
Typed Name 0! Officer Organization or officer

CPT Trial Counsel
Grade orT'cJai Capacity io'Aolrm'nis:er oam .
?[510 (See no M. must be a commissioned of?oor)
signature I i

on FORM 453, MAY
PREVIOUS EDITION IS OBSOLETE.



UNCLASSIFIED
12. -
On [14 Gil-. . ?3?60 7 . the accused was informed of the charges against hirnlher and of the name(s) of the accuseris)
known to me
(See R. C.M. 303 (See R. C.M. 303 if noti?cation cannot be made.)
MICHAEL S. GALLOUCIS HHC, 89th Military Police Brgqade
Typed Name of Immediate Commander Organization of lmmediate Commander
COL
Signature
IV. RECEIPT BY SUMMARY COURT-MARTIAL CONVENING AUTHORITY
13.
The sworn charges were received at I 900 hours, I . ELZQ :2 at /7
Designation of Command or
Of?cer Exercising Summary Court-Mama! Jurisdiction (See R. C. 403)
1
MICHAEL S. GALLOUCIS Commanding
Typed Name of Officer Official Capacity of Omcer S.igm'ng

signature

V. REFERRAL: SERVICE OF CHARGES

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

ml (?mpg-?lvaa ?>0Ql1cl6lcl; lraq "3 3997

Referred for trial to court-martial convened by Cum.? Order nuynber

. -QUOW .subject tothe following instructions? he
as o. hon?cap'rm\ Colse.
Bv or Merger (1r=rv=ml Simmons

Command or Order
.Nelson Leqal
Typed Name of Officer Of?cial Capacity of Officer Sigm'ng
Grade?
i "176
1
Signature
15.
On . . i (caused to be) sewed a copy hereof on (each of) the above named accused.
Typed Name of Tnal Counsel Grade or Rank of Trial Counsel
Signature

1 when an appropriate commander signs personally, inapplicable words are stricken.
2 -- See R.C.M. 601(e} concerning instructions. If none. so stale.

DD FORM 458 (BACK), MAY 2000




0 0 34607

UNCLASSIFIED

Continuation Sheet, DD Form 458, Lieutenant Colonel STEELE, William H., HHC, 89th Military
Police Brigade, Camp Victory, lraq, APO AE 09342

CHARGE Ill: VIOLATION OF THE UCMJ. ARTICLE 133

TION 1: In that Lieutenant Colonel William H. Steele. U.S. Army, did, at or near
Camp Cropper, on or about 20 October 2005 and 22 February 2007, knowingly
and wrongfully fraternize witht fa high value detainee, by maintaining an
inappropriate personal relationship with the sai value detainee, wherein
such acts constituted conduct unbecoming an of?cer in the arme Kuu 2?67









that Lieutenant Colonel William H. Steele, U.S. Army, did, at or near

Camp Cropper, lraq, between on or about 1 December 2005 and 11 December 2006,
knowingly and wrongfully provide special privileges to and maintain an inappropriate
relationship with Bahar Ahmed-Suseyi, a Category I Interpreter, working at or near Camp
Cropper, Iraq, wherein such acts constituted conduct unbecoming an officer in the armed
forces.

CHARGE IV: VIOLATION OF THE UCMJ. ARTICLE 92

SPECIFICATION 1: In that Lieutenant Colonel William H. Steele, U.S. Army, did, at or near
Camp Victory, Iraq, between on or about 18 February 2007 and 21 February 2007, vioiate a
lawful general regulation, to wit: paragraph 7-4, Army Regulation 380-5, dated 29 September
2000, by wrongfully and knowingly storing classified information in the living space of the said
Lieutenant Colonel William H. Steele to wit: Freedom Village Compound, unit B21C.

SPECIFICATION 2: In that Lieutenant Colonel William H. Steele, U.S. Army, did, at or near
Camp Victory, lraq, between on or about 1 September 2006 and 21 February 2007, violate a
lawful general regulation, to wit: paragraph 4-32, Army Regulation 380-5, dated 29 September
2000, by improperly marking classified information as unclassi?ed.

SPECIFICATION 3: In that Lieutenant Colonel William H. Steele, U.S. Army, having knowledge
of a lawful order issued by the 89th Military Police Brigade Deputy Commander not to return to
his quarters until further notice, an order which it was his duty to obey, did, at or near Camp
Victory, Iraq, on or about 22 February 2007, fail to obey the same by wrongfully returning to the
quarters of the said Lieutenant Colonel William H. Steele.

SPECIFICATION 4: In that Lieutenant Colonel William H. Steele, U.S. Army, did, at or near
Camp Victory, lraq, between on or about 18 February 2007 and 21 February 2007, violate a
lawful general order, to wit: paragraph 2e, Multi-National Corps-Iraq General Order Number 1,
dated 16 December 2006. by wrongfully and knowingly possessing about forty-nine (49)
pornographic video files.




In that Lieutenant Colonel William H. Steele, U.S. Army, who knew of his
duties at or near Camp on or about 1 October 2005 and 31 October
2006, was derelict in the performance of his duties In to fulfill his
obligations as an approving authority in the expenditure of Field Ordering Officer





was his duty to do. K?gznat


34608

UNITED STATES OF AMERICA
V.

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

Government Targeted Brief
on Receipt of Intelligence
as a Requirement of
Aiding the Enemy
29 March 2013

I. INTRODUCTION
COL William Winthrop captured and established military precedent in Military Law and
Precedents (2d ed. 1920) (hereinafter "Winthrop" and Enclosure 1).' Winthrop covers precedent
then known regarding giving intelligence to the enemy. In fact, Military Law and Precedents
refers to Digest of the Opinions of the Judge Advocates General of the Army (1895) (hereinafter
"1895 Digest" and Enclosure 2), also authored by COL Winthrop. In both works, COL
Winthrop observes that the crime of giving intelligence to the enemy cannot be completed unless
the intelligence is actually received by the enemy. To support this finding, COL Winthrop cites
the Civil War case of United States v. Ellison, 14 Reports of Bureau ofMilitary Justice 256
(1865), as documented by BG Holt in a letter, recounting the case and its reasoning, addressed
to President Lincoln (hereinafter ''Ellison" and Endosure 3). Having commenced his military
career in April 1861, COL Winthrop possessed a contemporary understanding of the precedents
he cited. COL Winthrop's Ellison citation includes language also stating that a charge of giving
intelligence to the enemy requires that the intelligence be conveyed to the enemy. As the
seminal authority on military law since the late nineteenth century, COL Winthrop's published
recitations of precedent should be followed. Therefore, this Court should consider Winthrop as a
compelling legal authority for the requirement that the intelligence must actually be received by
the enemy to prove aiding the enemy by giving intelligence to the enemy correctly.
II. LEGAL BACKGROUND
The ancient crime of treason by levying war or adhering to the enemy originated in
England. See Jabez W. Loane, IV, Treason and Aiding the Enemy, 30 Mil. L. Rev. 43, 58 (1965)
(hereinafter "Loane" and Enclosure 4 at 17). Aiding the enemy under Article 104, UCMJ
(hereinafter "Artide 104") functions as the military offense separate but analogous to the civilian
offense of treason. See United States v. Batchelor, 22 C.M.R. 144, 159 (C.M.A. 1956) (noting
that accused's act gave aid and comfort to the enemy although the act did not necessarily rise to
the intent required for treason); Loane at 44 (Endosure 4 at 3). As early as 1691, the crime of
aiding the enemy was recognized as an offense separate from treason. Id. at 59 (Enclosure 4 at
18). Since treason's inception, defining its elements has proven problematic. See id. at 46
(discussing the influence of a monarch on the scope of the crime of treason) (Enclosure 4 at 5).
Accordingly, while establishing the constitutional requirements for treason, Benjamin Franklin

' The United States has provided as enclosures abbreviated versions of many of the sources cited because they are
not available on WestLaw or Lexis. These Enclosures will be additionally referenced parenthetically in the
respective citations.

APPELLATE EXHIBIT SiD
PAGE REFERENCED:
PAGE
OF
PAGES

34609

advocated for a higher evidentiary requirement of proof of two witnesses. See Farrand, 2
Records of the Federal Convention of 1787 348 (noting that treason prosecutions were
"generally virulent" and "perjury too easily made use of against innocence"). The increased
evidentiary standard of two witnesses was adopted despite recognition that rendering proof of
crimes such as traitorous correspondence with the enemy could be "extremely difficult." See id.
("Treason may sometimes be practices in such a manner, as to render proof extremely difficult as in traitorous correspondence with an Enemy."). The heightened standard corresponds to the
seriousness of the crime. See Loane at 47 (Enclosure 4 at 6).
In 1775, Congress codified the crime of aiding the enemy in Artide 28 of the Articles of
War of 1775, providing that "[wjhosoever holds correspondence with, or gives intelligence to,
the enemy, either directly or indirectly" shall each "suffer death, or such other punishment as a
court-martial may direct." See Tara Lee, American Courts-Martial for Enemy War Crimes, 33
U. Bait. L. Rev. 49, 53 (2003) (emphasis added). During the Civil War, relieving and
communicating with the enemy were prohibited by two articles similar to those enacted in 1775.
See Winthrop at 629 (Enclosure 1 at 4).^ Article 45 states, "Whoever relieves the enemy with
money, victuals, or ammunition, or knowingly harbors or protects an enemy, shall suffer death or
such other punishment as a court-martial may direct." Id. Article 46 states, "Whoever holds
correspondence with, or gives intelligence to, the enemy, either directly or indirectly, shall suffer
death, or such other punishment as a court-martial may direct." Id. (emphasis added).
By the middle of the twentieth century. Article 104 had been codified, continuing the
definition of aiding the enemy. Manual for Courts-Martial, United States ch. XXVIII \ 183
(1951) (hereinafter "1951 MCM" and Enclosure 5 at 2-3). Under Artide 104, the 1951 MCM
treated giving intelligence to the enemy separately fi'om communicating with the enemy. See
1951 MCM ch. XXVIII ^ 183(c)-(d) (Enclosure 5 at 3). In particular, proof of giving
intelligence to the enemy required a demonstration that the accused "knowingly conveyed to the
enemy certain informafion." 1951 MCM ch. XXVIII1183(c), proof (emphasis added)
(Enclosure 5 at 3). By its plain language of the past tense and preposition "to", the 1951 MCM
required that the intelligence be actually received. Additionally, the 1951 MCM explicitly
rejected this approach for communication by stating that crime is complete the moment the
communication is issued. See 1951 MCM ch. XXVIII T| 183(d) ("Communication,
correspondence, or holding intercourse with the enemy does not necessarily import a mutual
exchange of communication. . . . The prohibition lies against any method of intercourse or
communication whatsoever, and the offense is complete at the moment the communication
issues fi'om the accused, whether it reaches its destination or not.") (Enclosure 5 at 3). In fact,
that distinction that communication does not require actual receipt, as highlighted by the
Defense, continues today. See Manual for Courts-Martial, United States pt. IV % 28(a); ^
28(b)(4)-(5) (2012) (hereinafter "2012 MCM"). COL Winthrop highlighted this distinction in
the nineteenth century. See William Winthrop, Digest of the Opinions of the Judge Advocates
General of the Army 21 (1880) (hereinafter "1880 Digest" and Endosure 6 at 4) 1895 Digest at
41-42 (Endosure 2 at 4-5).
III. WINTHROP'S TREATISE IS THE QUINTESSENTIAL AUTHORITY ON MILITARY
LAW
Winthrop traces the Civil War articles back to the Articles of War of 1775. Winthrop at 629 (Enclosure 1 at 5).

2

34610

A. Precedent for Requiring Actual Receipt for Charge of Giving Intelligence to the Enemy
COL Winthrop completed Military Law and Precedents to constitute "a comprehensive
treatise on the science ofMilitary Law." See Winthrop at 5 (Enclosure 1 at 3). COL Winthrop
drafted his comprehensive treatise based on precedents of the "more important trials and acts of
military govemment" ofhis era. See id. Moreover, COL Winthrop drew on his own views,
which were informed by his service in the Army, which began in April 1861 during the
begitming ofthe Civil War. See id. Additionally, COL Winthrop drafted 1880 Digest and 1895
Digest. In both the 1880 Digest and the 1895 DigesL COL Winthrop also states that it is
"essential" to the offense of giving intelligence to the enemy "that material information should
actually be communicated to [the enemy]; the communication may be verbal, in writing, or by
signals." 1880 Digest at 21 (emphasis added) (Enclosure 6 at 4); 1895 Digest at 42 (emphasis
added) (Endosure 2 at 5). COL Winthrop cites Ellison in the 1880 Digest and 1895 Digest as
authority for the principle that intelligence must actually be received to complete the act of
giving intelligence to the enemy. 1880 Digest at 21 (citing 14 Reports of Bureau ofMilitary
Justice 273) (Enclosure 6 at 4); 1895 Digest at 42 (citing 14 Reports of Bureau of Mihtary
Justice 273) (Enclosure 2 at 5).
Mr. Joseph Ellison was charged with relieving the enemy with money and holding
correspondence with the enemy under the 56th and 57th Articles of War. Ellison at 256
(Endosure 3 at 3). Then Brigadier General Holt, Judge Advocate General of the Army,
recounted the case and provided a thorough legal analysis in a letter to President Lincoln. Id.
(Enclosure 3). Mr. Ellison, a civilian, was prosecuted because he purchased approximately
15,000 bales of cotton from agents of the Confederate States of America. Id. The specification
stated:
In this; that he, the said Joseph Ellison, a citizen of Louisiana, did,
in the months of June, July, and August 1864 at Bayou Sara in the
Parish ofWest Feliciana, Louisiana and did then and there hold
correspondence [with several Confederate agents, to include one
John Irving], all enemies of the United States and officers or agents
of the so-called Confederate States Govemment relative to the

purchase of a large quantity of cotton, the property of the so-called
Confederate States Govemment, and the payment therefor in
money, for [] exchange, merchandise, and supplies for the use of
said Govemment and its armies.
Mr. Ellison was prosecuted under the 56th and 57th Articles of War^:
56th Artide. Whoever shall relieve the enemy with money,
victuals, or ammunition, or shall knowingly harbor or protect an
enemy, shall suffer death or such other punishment as shall be
ordered by the sentence of a court-martial.
' Although Mr. Ellison was charged under the 56th and 57th Articles of War, not the 45th and 46th Articles
examined by COL Winthrop, the language of the respective articles tracks closely.

34611

57th Artide. Whoever shall be convicted ofholding
correspondence with, or giving intelligence to, the enemy,either
directly or indirect1y,shall suffer death, or such other punishment
as shall be ordered by the sentence ofacourtmartiaL
In relevant part, BGHolt'sletter recounted:
The next question examined is whether the acts shown constituted
"holding correspondence with the enemy." No spedal facts are
shown bearing particulariyupon the second charge, and the Judge
Advocate rested his demand fbraconvictien upon the incidental
communication with rebels attending the commercial transaction.
The Court find [.^^'^jhim not guilty as to the other allegations ef
correspondence with[Confederateagents]not known thus
restricting the intercourse te[aConfederate agenL Irving] with
whom it was word efmouth.
Astrict interpretation ofthe word correspondence would confine
its meaning to written communication. But as this constmction
would defeat the ends of the prohibition the Govemment has justly
announced the correct interpretation toinclude all communication,
verbally or by signals, as well as by writing. But, at the same time
the artide has been stated to contemplate only such
commumcations as convey intelligence to the enemy and as are
carried en without the sanction ofthe Commanding GeneraL The
leamed commentators upon the English Artide,which is precisely
similar, agree in saying that the correspondence therein denounced
must beasecret one unknown to and unauthorized by the
Commander.
The Act ofPebmary25th 1863,entit1ed,"An Act to Prevent
Correspondence with Rebels" provides fbr the punishment of any
resident ofthe United States or citizen resident abroad holding
correspondence er intercourse written or verbal with the pretended
rebel govemment on any agent or sympathizer thereofwithout the
permission ofthe Govemment ofthe United States and with intent
to defeat the measures thereof. But the accused is not prosecuted
under this acL
^^^^'.^^/^ at 272-73(emphasis added; citations omitted) (Endosure3at 19-20). BG Holt repeats
the understanding that the rule encompasses communications that convey intelligence to the

34612

enemy—that is, actually transfer possession intelligence to the enemy.'* See id. at 273 (Enclosure
3 at 20); but see Cramer v. United States, 325. U.S. 1, 74 (Douglas, J., dissenting) (analyzing the
case of Francis De la Motte, 21 How. St. Tr. 687, and finding that an attempt was sufficient and
that aid and comfort need not have been actually received by the enemy to constitute the
offense).
It is this mle that intelligence must be received by the enemy to aid the enemy that
Winthrop restates in the 1880 Digest, the 1895 Digest, and Military Law and Precedents. 1880
Digest at 21 (Enclosure 6 at 4); 1895 Digest at 42 (Enclosure 2 at 5); Winthrop at 634 (Endosure
1 at 9); see also George Davis, A Treatise on the Military Law of the United States 418 (2d ed.
1911) (hereinafter "Davis" and Endosure 7 at 3). The mle is lurther restated in Charles
Howland, Digest of Opinions of the Judge Advocates General of the Army (1912) (hereinafter
"1912 Digest" and Endosure 8 at 3). COL Winthrop began his military career during the Civil
War and was a contemporary of BG Holt. See Winthrop at 5 (Enclosure 1 at 3). Accordingly,
COL Winthrop possessed extant comprehension of the principles set forth in BG Holt's letter to
President Lincoln. The extant comprehension contributes to COL Winthrop's status as an
authority.
B. Winthrop Operates as Authority for Military Law
Winthrop serves as the foundational treatise on military law. The Supreme Court has
twice called Winthrop "the Blackstone ofMilitary Law." Hamdan v. Rumsfeld, 548 U.S. 557,
597 (2006) (equating the "classic treatise" with William Blackstone, Commentaries on the Laws
ofEngland) (citing Reid v. Covert, 354 U.S. 1, 19 n. 38 (1957)); see also United States ex rel.
Toth V. Quarles, 350 U.S. 11, 15 n. 8 (1955) (calling Colonel Winthrop "a leading authority on
military law"). In particular, the Supreme Court has utilized Winthrop as an authority on
historical precedent. See Parker v. Levy, 417 U.S. 733, 745 n. 11 (1974) (referring to Winthrop
as historical authority for content of British Articles of War of 1765). Furthermore, the Court of
Military Appeals has relied on Winthrop to interpret Article 104. See Batchelor 22 C.M.R. at
157-58. Similarly, Winthrop has been repeatedly acknowledged as the authority on broad swaths
of military law in military jurispmdence. See, e.g.. United States v. Stebbins, 61 M.J. 366, 370 &
n. 32 (C.A.A.F. 2005) (discussing circumstances of considering fines as punishment); United
States V. Schuber, 70 M.J. 181, 187 (C.A.A.F. 2011) (describing the practice o f constructive

release from arrest where an officer retumed to duty at his request to go into an engagement with
his regiment, requiring re-arrest at the close of the engagement); United States v. Ali, 71 M.J.
256, 262 (C.A.A.F. 2012) (citing Winthrop for the "long-standing principle that civilians serving
alongside the military may be subject to courts-martial under the militaryjustice system in some
limited circumstances").
In its previous filing, the United States highlighted Winthrop for the proposition that a
conviction for giving intelligence to the accused requires proof that the intelligence was actually
received. Winthrop cites the 1895 Digest to support the requirement that intelligence actually be
received. The 1880 Digest and 1895 Digest operate as legal authority because the Supreme
"* BG Holt agreed with Mr. Ellison's argument that the Mr. Ellison's license protected him from a charge of
corresponding with the enemy. See Ellison at 275-76 (Enclosure 3 at 23-24). BG Holt further noted that the court
erred by admitting telegraphic dispatches as evidence because the dispatches were not authenticated. Id.

34613

Court has relied on the reasoning presented in the Digests. .^^^,^.^.,(^/^^'^^^^^^^^.^v.^^^^,82
U.S.34(1872)(rdying on and concurring with the holding of the Judge Advocate General ina
similar case); ^i^/7^^^^^^^/^^^^^.^^^^^,^,97U.S.426, 430-31 (1878)(quoting Willie
Wintlu'ep,^^'/^^r^/^.^^^^^.7^^^^^v^^^^^G^/^^/'^^^^^^Bl/'//^^(1866));^^^
U.S.103,109(1950) (giving"great weight" to the interpretation established in authorities, te
include the 1912 Digest); 7:^^//^^^/^v..^^//^.^^^,548U.S.at 684 (Themas,J.,dissenting)(citing
1912 Digest); .^^^^^.^^ Davis, .^^z-^. In addition, COLWinthrep'srecemmendation to clarify
the scope of aiding the enemy was adopted by Congress. Loane at 75 (noting that Congress
inserted the words "er ether thing" to the Articles ofWarof1916)(Endesure4at 34).
C. Winthrop'sPrecedent Comports with Framework ofDistinct Crimes
Giving intelligence to the enemy is distinct fi'em communicating with the enemy because
it ^^requires proof ofafact the other dees not." (^^7^^^^^^^.^^.B^/^^^/'.^^/^,68M.J.378,385
(C.A.A.F. 2010) (holding that attempting to communicate with the enemy is net multiplidtous
attempting to give intelligence to the enemy). In^/^^^/-.^^/^, the specification charging attempting
te knowingly communicate with the enemy concemed making statements substantially as " I wish
tomeet with you;Ishare your cause;Iwishte continue contact through conversations and
personal meetings." 7i:i^.at385 n.7. The attempted communication specification charges the
accused with violating the absolute mle ofneninterceurse with the enemy. .^^^ Winthrop at 633
(Enc1esure1at8). In contrasL the specification in^/^^^/'.^r^/^ charged attempting te knowingly
give intelligence to the enemy concemed "disclosing tme infbrmation toU.S.military personnel,
whom the accused thought were[membersefal Qaida]."B^/^^^/-,^^^,68 M.J.at 385 n.5. The
attempted giving intelligence specification, however, charges providing the enemywith
infbrmation pertaining to the conduct ofwar. .^^^ Winthrop at 634 (Enclosure1at9). One
specification punishes the violation efstateefecclusien between all inhabitants efbdligerent
nations while the ethet: specification punishes the act ofproviding information, the receipt ef
which could benefit the belligerenL ^^^Winthrepat776-777^n.13(Endesurelat11 12).
Thus, proving communicating with the enemy requires facts distinct from the facts fbr giving
intelligence to the enemy because the t^o are distinct crimes. Bl/^^^/'.^^/^,.^^^/'^.
The Defense theory that "^giving intelligence tothe enemy'isasubset of
^communicating'or^corresponding'with the enemy" further highlights the distinction between
the separate crimes ofgiving intelligence to the enemy and communicating with the enemy.
Appellate Exhibit CDLXXXV^16. The Defense argues that the crimeef giving intelligence te
the enemy"is complete the moment the communication, correspondence, er intercourse issues
fi^om the accused." ^^^^'^.(citing2012MCMpLlV^28(c)(6)(a))(emphasizingadefimtionof
the absolute bar ofnon-intercourse that indudes any method ef communication). Thus, by
opining that the giving intelligence to the enemy should be treated asacommunication to the
enemy,which is complete upon the accused'sissutng the communication, the Defense claims
that the actof giving intelligence isacemmunicatien.
During eral argument, Defense argued that the only distinction between the two crimes is
that giving intelligence requires the communication ofintelligence vice any ether infbrmation.
Following this argument, the only difference between these two offenses would be the additional
element ofthe infbrmation being intelligence. Under the Defense'stheory equating giving

34614

intelligence to the enemywith communicating with the enemy,cemmunicating with the enemy
becomesalesserindudedoffenseof giving intelligence to the enemy based on the single
element different of the infbrmation being intelligence.^ ^^^^^^//^^^^^. ^/^^7^^^^^^^.^,489U.S.
705,719(1989) ("[T]o be necessarily included in the greater offense the lesser must be such that
it is impossible te commit the greater without first having committed the lesser."); (^^'^^^^^^^^.^
v.^/^/'^'^^^,70M.J.51,55(C.A.A.F.2011). Communicating with the enemy cannot bealesserincluded offense ofthe separate and distinct offense ef giving intelligence to the enemywhere
both offenses could be charged separately and simultaneously. ^^^^^'^^^/^,^r^/^,20C.M.R.at166
(determining that no word efArtide104 "indicates that the act ef giving ^intelligence'to the
enemy qualifies or restricts the act of^cemmunicating'er^cerrespending'er ^holding
intercourse'with the enemy"); B^/^^^/'.^r:!/^,.^^/'^;,^^^^^.^^^^^/'^^^^,.^^/'^. Therefbre, requiring
receipt is the factor that offsets these two offenses as being separate and distincL and not nested
as lesser included offenses.
IV CONCLUSION
In the United States, the distinction between the two crimes has been maintained since
1775 and the CivilWar. The distinction between the crimes lies in giving infbrmation tothe
enemy—the information must be transferred tothe enemyte complete the crime. The two
oflenses have punished different acts with different elements. Winthrop simply confirms the
disparate nature ofthe crimes and unique requirements fbr each. Therefbre, the requirement, as
set fbrth repeatedly by COL Winthrop, that intelligence must actually be received bythe enemy,
comports with the American prohibition efpresentingaweak case byrequiring strong evidence
fbr treasonous charges. The "mere serious" nature of giving intdligence,which could be useful
te the enemy,warrants the increased standardof actual receipL

ALEXANDERVO^ ELTEN
CPT,JA
AssistantTrial Counsel

^ I f giving intelligence to the enemy is treated as communicating with the enemy.the element of communication
without authorisation becomes the same. Additionally.the ^^^.^^^^ofknowinglyrec^uires proof that the accused
knew he was giving or communicating intelligence to the enemy. ,5^^^ Appellate Exhibit CD^at^. Therefore,
under the Defense'stheory.the only additional element tor giving intelligence would be proof ofthe intelligence
itself.

34615

Icertify tbatlserved orcaused tobe servedatme copy efthe above en Mr. David
Coombs, Civilian Defense Counsel via electronic mail, en 29 March 2013.

ALEXANDER VONELTEN
CPT,JA
Assistant Trial Counsel

34616

UNITED STATES OF AMERICA
V.
I

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

)
)
)
)
)
)
)
)
)

Government Targeted Brief
On Receipt of Intelligence
as a Requirement of
Aiding the Eneray
Enclosure 1
29 March 2013

SA
1 ^

APPELLATE EXHlBlTiJLfLPAGE REFERENCED:
PAGE
OF
PAGES

34617

MILITARY LAW
AND

PRECEDENTS
f . fm
\

j

:

j

^ '

WILLIAM WINTHROP
Colond, United States Army
AUTEOS OJ THE ANNOTATED DIGEST OF OPINIONS
OP THE JUDGE ADVOCATES GENERAL

SECOND E D I T I O N
REVISED A N D ENLARGED

WASHINGTON
GOVERNMENT PRINTING OFFICE
1920

1

34618

WAB

DS?AETMENT.

Document No. 1001Ofjtce of The Adjitiant General.

Entered according to Act of Congress, In the year 1888, by
WILLIAM WINTHROP,
In the Office of the Librarian of Congress, at Washington, D. C,
Copyright, 1S96,
B Y WILLIAM WINTHKOP.

34619

PEETACE TO THE ITRST EDITION OF 1886.
In view of the absence and want of a comprehensive treatise on the science
of Military Law, i t has been for some years the purpose of the author—
a member of the bar in the practice of his profession when, In April, 1861,
he entered the military service—to attempt to supply such want with a
work, which, by reason of its extended plan and f u l l presentation of prindpies
and precedents, should constitute, not merely a text book for the army, but a
law book adapted to the use of lawyers and judges. The present treatise was
substantially completed in 1880, when the author was called upon to publish
his annotated " Digest of Opinions of the Judge Advocates General," and some
of the references embraced in the original work were inserted i n the notes
of that publication. Since its date certain unusually Important military trials
and investigations have been had, sundry valuable opinions upon questions
of military law have been pronounced by the courts and other legal authorities,
and our written military law—especially the Army Regulations—has been
materially modified. Meanwhile also, in England, the time-honored Muttay
Act and Articles of War have wholly passed away and been succeeded by the
new " Army Act" and " Rules of Procedure,"—a reform of great Interest to
the military student,—and this legislation, &c., has been copiously illustrated
by the excellent offidal " Manual of Military Law " and a series of minor commentaries.
In view of these changes, the present work has been revised, and in great
part re-written, and the references have been brought down to the end of the
year 1885. Apart from the views and conclusions of the author, the precedents,
now first collected and considered, will, it is believed, he found to be valuable
both as law and history, A complete history, for example, of the late war
could scarcely be written without taking into consideration the more important
trials and acts of military govenmient of that period instanced tn the course
of these volumes.
The author, however, will be fully recompensed for his labors i f the same
shall result In inspiring an Interest in the study of Military Law as a department of legal sdence not heretofore duly recognized. The lawyer who, I I he
has not been led into the old error of confounding the military law proper
with martial law, has perhaps viewed i t as consisting merely of an Tinimportant
and uninteresting scheme of discipline, will, i t is hoped, discover in these pages
that there is a military code of greater age and dignity and of a more elevated
tone than any existing American civil code, as also a military procedure,
which, by its freedom from the technical forms and obstructive habits that
embarrass and delay the operations of the civil courts, is enabled to result
In a summary and efficient administration of justice well worthy of respect
and imitation. The military student, on the other hand, in examining the
cases cited, as adjudicated by the courts which expound the international law,
the common law, the criminal law, and the maritime law, will, i t is thought,
more fully appreciate the connection between the military law and the general
law of the land;—will perceive that the former, while distinct and individual,
3

6

34620

IvriLITARY LAW AND PRECEDENTS.

629

force or compulsion," in contradistinction to the use of the " infiuence or persuasion " Intended by the previous Article in the act therein specified of speoJfcing words inducing the abandonment of a post, &c. The compulsion need not
consist in the nee of actual violence or force. An absolute refusal to obey
orders or do duty, or to participate fn any furtherraeasuresof defence, might
be as effectual a form of compulsion as i f physical constraint were resorted
to. Of the offence Samuel further writes:"—'-This amounts to a plain and
palpable act of mutiny, being notldng less in effect than the supercession, or .the
assumption and exerdse by force, of the powers of the governor or commanding
oflBcer, by his refractory troops." The moving cause or animus of the act,
whether insubordination, cowardice, trfechery, &c., is quite immaterial.'" I t is
observed by O'Brien that—'* no amount of suffering, privation, or sickness, to
which the garrison may be exposed by the firm Intrepidity of the commander,
will avail as an excuse for the crime."
No Instance of a trial for the spedfic offence made punishable by this Article
Is known to have occurred In our army."
973

X I X . THE FORTY-FIFTH AND FORTY-SIXTH ARTICLES.
[Relieving, and Communicating with the Enemy, &c.]

" ABT. 45. Whosoever relieves the enemy tcith money, victuals, or ammunition,
or knovnngly hariors or protects an enemy, shall suffer death, or such other
punishment as a court-martial may direct.
" AET. 46. Whosoever holds correspondence toith, or gives intelligence to, the
enemy, either directly or indirectly, shall suffer death, or such other punislvment
as a court-martial may direct." i
ORIGIN OF tTHESE ABTICLES. These Articles may be traced to Arts. 3
and 4, Sec. I I , of Charles I , ArL 8 of the Code of James I I , and to Arts. 67,
70, 71, 76 and 77 of Gustavus Adolphns. In the American military law, they
first appear as Arts. 27 and 28 of 1775.
THIS CLASS OF OFFENCES COMPARED W I T H TREASON. Treason as
such is not an offence properly cognizable by a court-martial." The offences,
however which are the subject of these two Articles are treasonable in their
nature and are characterized by Samuel" as "overt acts of treason-," by
O'Brien " as " closely allied to treason." Onr Constitution, (Art. I l l , Sec. 3 § 1,)
declares that—" Treason against the United States shall consist only in levying
ahffcfoTt" Wbeni^S-lhCTeforc an overt a d of the dass spedfied in these Artides
gViTsubstantial aid and comfort to the enemy, and thus evidences, so far forth,
Z^e^I^"' 2 '

ccmpara. In this c«inertlon. Art 78 of the Code of Gnstavn,

mmmmmm
held nnder martial law—as in nuix
Jamaica. See PAST I I .
« Pag€ 5T7. And see Id., p. oo**
"Page 146.

34621

630

MILITARY LAW AND PRECEDENTS.

an adherence to his cause, i t can scarcely be regarded as less than an act
of treason." I t may thus happen that an offender whose crime has bieen
committed upon the theatre of war, and who is therefore amenable to
trial as for a military offence under one of these Artides, may at the same time
be liable to an indictment for treason. A violation of the Articles, however, will
not amount to the latter offaice, in the absence of the requisite animus Implied
in the constitutional definition."
CONSTRUCTION OF THE TERM " WHOSOEVER." The subject of the
Interpretation of this initial word of the two Artides, as indicating the classes
of persons made amenable thereby to trial by court-martial for the offences
therein specified, has already been considered in Chapter V I I I on Jurisdiction.
974

FOSTT-FIFXH

ABTICUC.

THE OFFENCE OF RELIEVING THE ENEMY W I T H MONET, VICTTTATrR OR AMMUNITION—"Relieves," Tills word is evidently employed
not merely in the restricted sense of alleviate or succor, but also In that of
assist. In the connection In which it Is used i t may be construed as substantially equivalent to furnish or supply. The mere giving or selling to the enemy
of any of the things specified, though the same may not really be needed by
him, Is so far an assistance rendered him, and thus an offence within the Article.
That the article furnished Is exchanged for some commodity returned by the
enemy does not, as noticed by the Judge Advocate General," affect the legal
quality of the act.
975
I t is to be observed that the enemy must be actually relieved—reached
by the siiccor or assistance tendered. An attempt to relieve him, not
successful, will not constitute the spedfic offence.
" The enemy," This term does not necessarily refer to the enemy's government or army, nor is It required to constitute the offence that the relief should
be extended directly to either: it is suffident i f it be f u m l ^ e d to a single citizen or to citizens, or to a member or members of the military establishment, in
his or their individual capadty; •* the words thus admitting of the same Import
as the term " an enemy " which occurs subsequently In the Article. In the language of Chief Justice Chase of the U. 8. Supreme Court,—" all the dtlzens or
subjects of one belligerent" are "enemies of the govemment and of all the
Sea Respubllca v. Carlisle, 1 Dallas, 39, a case of an Indictment for treason, for
giYlng intelligence to the enemy, Ac.; also U. S. v. Pryor, 3 Washington, 234, 238, where
the court speaks of a form of treason as—" an adherence to the enemy by supplying him
w3th provisions." In a charge to the grand jury of the U. S. Circuit Conrt, In Nov,
1861, reported In 5 RIatchford, 649, 550, Nelson, J. clearly sets forth that giving IntelUgence, sending provisions or money, and furnishing arms or munitions to the enemy are
all overt acts of treason. And see Tn re Stacy, 10 Johns., 332; Jones i?. Seward, 40
Rarb., 563, also 4 Rlack. Com., 82, (and Christian's note;) Hensey's Case. 1 Bur, 650;
Stone's Case, 6 Term, 527.
" Thus correspondence with an enemy in regard to matters pureiy social or domestic,
while lacking the anjm«, of treason, would, unless duly authorized, conatltnte an offence
under Art. 46 (See post.) In Pottrell v. German, 5 Cold., 280, it was held not to be
treason to relieve the sick and wounded of the enemy hy renting a building for a hospital

^Et^^S.'fEa^^-Z'^^^

#mmmm;mm
5

34622

MILITARY LAW AND PRECEDENTS.

631

dtlzens or subjects of the other." both In " civil and International wai-s."«
Relief, therefore, afforded to Individuals Is relief to enemies,, and, so far forth
also, relief to the enemy considered as a nation or govemment.
It need hardly be remarked that the term " the enemy," or " an enemy," does
not include enemies regularly held as prisoners of war; such, while so held,
being entitled, by the usages of civilized warfare, to be furnished with subsistence, quarters, &c." I t would include, however, a prisoner of war who has
escaped and while he Is at large," as also one who, having been made prisoner
of war, has been paroled, and is at large upon his- parole"
976
The term under consideration embraces also—as has been specifically
held by the Attorney General"—-an Indian tribe or band in open hostility
to the United States.
«Money, victuals, or ammunition." In tills enumeration the Artide la
bald and Imperfect. Some such addition as or other thing, or or otherwise is
required to complete and render fully effective the enactment" " Money " Indudes of course either metallic or paper currency, as also money issued by or
current with the enemy as well as money of the country of the accused. As
held by the Judge Advocate General," the furnishing of money to the enemy
Is no less a relieving of him where a consideration is recdved in retum than
where the amount supplied is a free gift. And convictions have been had,
under the Article, for relieving the enemy with money, by purchasing (with
money paid) cotton frora agents of the Confederate government,^ as also by
similarly purchasing Confederate bonds." " Victuals " is defined by Hough to
be " any article that vdli support life;" and he concludes that all wines,
spirituous liquors, " and even water are Included In the term."" In the reported eases occurring during the late war, the most usual form of furnishing
an enemy with victuals was for the accused to entertain him at meals at
his residence.*^ As to " ammunition," no sufiicient grounds are perceived
«i The Venice, 2 Wallace, 418. And see Tbe Prize Cases, 2 Rlack, 666; also case of
Mrs, Alexander's Cotton, 2 Wallace, 274; Goocb u. V. S., 15 Ct Cl., 287-8. The term
" the enemy " includes not only civilians, soldiers, Ac, but also persons who, by the laws
of war, are outlaws—as " guerillas " and other freebooters. See G. 0. 30, Dept. of the
Mo., 1863.
" Compare Hough, 328.
M See the case of harboring, Ac., an enemy, published in G. O. 88, Mil. Div. W. Miss.,
1864, where the person harbored was an escaped prisoner o f war.

M In the leading' case of R. G. Harris, a member of Congress from Maryland, the rellsving by the accused, with money, of two soldiers of tbe army of the enemy, at large
under their parole as prisoners of war, and unlawfully within our Unes. was considered
by the court to be, as charged, an offence under Art. 45, and the conviction and sentence
of the accused accordingly were duly approved. G. C. M. O. 260 of 1885; also Proceedings published in Ex. Doc, No. 14, H. of
S9th Cong., 1st Sess. And compare 11 Opins.
At. Gen., 204.
M 13 Opins. At. Gen., 470.
M In the early Eesolatlon of Congress, in porf materia, of Oct. 8, 1777, the partlddlars
are stated as—" supplies of provision, money, clothing, arms, forage, fuel, or any kind
of stores." 2 Jour. Cong., 281.
•^ DlGBST, 41.
" G . 0. 14, Mil. Div. W. Miss., 1865—where the accused is convicted of having paid
to the enemy's agents about $500,000 for cotton.
M See G. O. 78, Mil. Div. W. Miss., 1864.
"Page 327; Id., (P.) 158. In a case pnbllshed In G. 0. 27, Mil. Div. W. Miss., 1865,
the enemy was relieved with " flour, coffee, oil, wines and whiskey."
« See G O 76 175, of 1863; Do. 61 of 1864. Also G. C, M. O. 260 of 1865, where
the accused procured two rebel soldiers to be fed at the house of a neighbor. In the
cases of two women convicted of this offence hy military commission, published in G. 0.
148, Dept. of the Mo., 1863, the enemy. (" buihwhackers,") were relieved by sending
and carrying victuals to them in the woods.

34623

632
977

MILITARY LAW AND PRECEDENTS.
for ascribing to this word a meaning larger or other than that which it
bears in common military parlance."

THE OFFENCE OF KNOWINGLY HARBORING OR PROTECTING AN
ENEMY. This offence may be defined as consisting mainly In receiving and
lodging, sheltering and concealing, or shielding from pursuit, arrest, or "any
Injury which in the chance of war may befall him,"" a person known- as. or
confidently believed to be, and who is in fact, an enemy. I f the party harboring, &c., is in no mapner apprized that the other is an enemy, the specific
offence is not committed; -but where the drcumstances are such as to induce
the inference that be is or may be an enemy, i t will be for the accused to rebut
the presumption that he had the knowledge contemplated by the Article. In
the cases as published in General Orders, this offence has commonly been
committed by lodging or procuring lodging for officers or soldiers of the enemy's
force,** or by concealing them, and denying their presence or refusing to furnish
any information of their whereabouts.'*
PROOF. I t must of course appear that a status lelli prevailed at the date
of the offence, bat of the existence of such status the court will ordinarily take
judicial notice without proof. Where it is doubtful whether the war had begun
at the time of the offence, or had not ended before such time or the time pf the
ordering of the conrt, i t may be necessary to put in evidence the action of Congress or the Executive in declaring war, announdng the recurrence of peace,
&c. A state of war being admitted or established, the fact that the party
978 relieved, &c., was an enemy will be exhibited by evidence that he was a
member of the military force of the enemy, or a dtizen or resident of
the enemy's coimtry.
DEFENCE. The only justification of an act made punishable by this Article
would ordinarily be the order or sanction of a competent military superior," or
an authority conferred by an Act of Congress or the President."
PUNISHMENT. This, being in the discretion of the court, will commonly
be not severe where the relief or harboring is but slight or for a very brief
period, or where It is rendered to a destitute person; and will ordinarily be less
severe where assistance is rendered to an individual for his personal benefit than
where It Is rendered to the government or the army of the enemy. But In every
case the animus of the offender will properly be the most material circumstance to be considered in awarding the punishment. Where his act lias proceeded from, or illustrates, a strong sympathy on his part with the cause of the
enemy, or a marked animosity towards his own government, he will merit a
much heavier penalty than where he was actuated mainly by an impulse of
"The view expressed by Hough, (p. 326.1 that "ammunition " was synonymous with
munition, and included arms and other matSriel of war, does not seem to have been
fevored by other authorities.
"Hough, 328.
»*See cases, cited in note ante, of relieving an enemy by entertaining him at meals —
in which cases he was generally also lodged.
'
" See two cases in G. O. 52, Dept. of the Ohio. 1863. In a case in G. O. 88, Mil Div

rzzrA

"ic-""'°'

" Samuel, 578-9: G. 0. 78, Mil. Div. W. Miss 1864
"See the Act of July lS. 1861, authorizing thL Preaident to permit commercial inter-

z:p=r::i%srzi:a^^^^^
anah intercoura^ and that a military or naval commander w&a not anthoriwd to do » .

34624

MILITARY LAW ANDPRECEDENTS.

633

hospitality. Capital sentences were rarely Imposed for violations of this
Article during the late war; imprisonment and fine being the forms of punishment usually resortedto.^
FoaT^-sixTH AaTiCL^.
THE OFFENCES MAI^E PUNISHABLE. This Artide makes capitally
punishable by sentence of court-martial the two distinct acts of holding
979 correspondence with, and giving Intelligence to, the enemy;and all material coraraunlcatlons made to t h e e n e m y w l l l b e f o n n d tobe included
within the one or the other description. The terms "^^o^o^^r" and
e^^^^^'have already beenconstrued under the preceding Article.
H O I K I N G CORRESPONDENCE W I T H THE ENEMY. Theword"corr^^^o^^^^c^" Isunderstood to behere employed in its usual and familiar
sense.as intending written communications, especially by letter, anderabracIng of course comraunications Inprint and telegrams. The terra, however, is
not to be viewed as implying that there has been, or shouldbe,amutual Interchange of letters or coraraunlcatlons between the accused and the enemy;
nor is It necessary that the coramunicatlonwhich isthe occasionof the charge
should be an answer toaprevious one from the party to whom It Is addressed.
Theoffencemayconsistlnthesendlngofasb^gle letter, and this maybe the
first and the only one that haspassed, or been attempted tobe transmitted,
betweenthe parties.
Any corr^pondence with theenemy being a violation of the absolute rule
of non-intercourse pertaining toastate of war,the Article, naturally, does not
characteri:^e the correspondence, theholdingof whichis madepunlshable,as
tr^sonable, hostile, injurious,^c.,^bntraakesIt anoffence to hold ^^^corre
spondence whatever. Not only therefore is correspondence by which valuable Information isirapartedorimportantpubllcbuslnesstransacted, as well
as correspondence calculatedto stimulate or encourage the enemy,^^ properly
chargeable under tbe Artide, but also correspondence ofacomparativelyharmless character—as the writing ofaletter relating toprlvate or domestic affairs.^
A n d s o o f the communicating tothe eneray of supposed facts.whlch however
are not true and do not therefore araount to the givlng of intelligence.^
I t is further to be observed that the crime is complete In the writing 0^
98tl preparing of theletter or other communleatlons, and the committing
i t toamessenger, or otherwise putthig it In tbe way to be delivered. I t
Is not essential that it be received by the person for whom i t is intended, or that
it reach its place of destination. I f itbelnterceptedwhiie^^fr^^^^^^, the
legal character of the offence will not be affected.^
DAn instance ofac^p^^^^ sentence is found in G. 0.76 of 1863, where, however, the
same was commuted bythe President to in^priaonment during the war at Fort Delaware.

^^^^^B^^D^^^^^^^^^^^^^^^^
being an o^cial person, ^member of Congress,^ dis^uali^cation for o^ce was added to
^^^^^^t^^'^additlonal''Articleof
^^^See^cas^^^^^^

^^^^nlel^o^^^^^^^^
^ ^ ^ ^ ^ ^ ^ ' ^ ^ ^ ^ ^ ^ ^ ^
Do.l82,Dept.oftheGnlf,l^^.

8

34625

634

MILITARY LAW AND PRECEDENTS.

GIVING INTELLIGENCE TO THE ENEMY. This offence will consist
In communicating to the enemy, by personal statement, message, letter, signal
or otherwise,* Information' In regard to the number, condition, position, or
movements of the troops, amount of supplies, acts or projects of the government
In connection with the conduct of the war, or any other fact or matter that
may instruct or assist liim in the prosecution of hostilities.*
Of the spedfic instances of a direct violation of this Article which have been
raade the subject of trial, some of the principal, as published In General Orders,
are—the furnishing to the enemy a plan of the defences of a military post;'
the pointing out to enemy's cavalry the road by which a herd of government
cattle had been driven to avoid capture, and stating that the same was without
a guard; * the writing and sending letters to a person In the enemy's service
in which information was given of the movements of troops and of intended
military operations;' and the giving of similar information to scouts of the
eneray."
I t is necessary that the enemy shall have been actually informed. I f therefore the intelligence fails to reach him, this offence Is not completed,
981
though the offence of holding correspondence may be." I t would seem
also that the facts communicated should be In part at least tme, since, if
they are entirely false, inteUigence cannot be said to be given.
" EITHER DIRECTLY OR INDIRECTLY." These worda are construed
as applying to both the acts made punishable, not to the last one only. The
(nodes of holding correspondence and giving intelligence already Instanced l^ave
been mainly of a direct character. I t was, however, the Indirect modes which,
during the late war,—as in previous wars,"—principally exercised the vigilance
of our military authorities. The proceeding of this sort which, It was found
especially necessary to denounce and prohibit was the puUication in newspapers of particulars in regard to £he numbers, organization, position, operations, &c., of the army, by which information might readily be communicated
to the enemy;" and In several Instances the offence thus committed was made
the subject of charges .under the. present Artide," or of trial by military commission." The publishing by way of advertisement In newspapers, of " Personals," by means of which an indirect correspondence was maintained with
Individuals within the enemy's lines, was also expressly prohibited.^
PEOOF. I n addition to what has already beGQ said on this subject, (induding the observations under the-previous Article—apposite here also—as to the
* See case in G. 0. 26, Dept. of Va. & No. Ca., 1864, in which s soldier guarding a
prisoner ia charged with allowing the latter to escape for the purpose of having him
communicate to the enemy valuable Information.
Art. 8 of James I I made punishable the giving of InteUigence " either by letters, me»8ages, signs, or tokens; or in any manner of way .whatsoever."
»The intelligence may be of a negative character. Thus in Stone's esse, 6 Term, 827,
the sending to the enemy a paper containing reasons for not invaUng England was held
to constitute high treason.
»G. O. 242 of 1863,
»G. 0. 250 of 1863.
»a. 0. 371 of 1863.
• G. 0. 157 of 1864.
" " It is essential to the offence of giving intelligence to the enemy tbat material information should actually be communicated to him." DIOBST, 42
^ See G. 0. of Nov. 27, 1812; Tnljoeh, 40-41,
'"^^
" G. O. 14), Dept. of Washington, 1863; De, 13, Dept. of the Tenn. 1863
** G. O 29, Army of the Potomac, 1868,
» Q. O. 10, Dept. of the East, 1868.

9

34626

MILITARY LAW AND PRECEDENTS.

63^

prop^ evidence of the exlstenoeofastate Of war, ^ c . , ) I t may be added that
wherethe correspondencehasbeencarried on, or Intelligence supplied, by a
wrlttencommunlcatlonln the^^^^^i^t^^^of the accused, It will be necessary
to prove this I n t h e usual mannner, as indicated In the Chapter on Evl982 dence, Wherethe communication Is In d^^^r,the possession o f a k e y ,
oraknowledgeof andablllty to employ the dpher,raustordinarlly he
brought home to theparty.^*
DEFENCE. The generalprindplelalddov^ as applicable to defences to
charges under the ^5tb, is apposite under the present Article,
Under a charge for holding correspondence, where the communication re^
ferred solely to private or domestic affairs, it would beagood defence to show
that the same was authorlzedunder regulations such as those which prevailed
during the late war, by whldicommunlcatlonsof such acharacter were permitted to be exchanged with the eneray through the lines at Fortress Monroe.
A n o t unusual form of defence to a charge of giving intdilgence to the
^emy, (especially where i t was verbally and personally communicatedto the
enemy in his presence,) hasbeen thatthe same was furnlshed^^^^r^^r^^^.
But to constitute this defence, the duress must havebeen sueh as toput the
party in reasonable fear of present ^^^t^ i f he refusedto give the Information
required of bim. Any form of bodily constraint or injury, not Immedlatdy
endangering life, although It might be admitted in evidencein mitigation of
punishment, would not amount to a ^^^^^c^ In law. Thus, neither themere
presenceofaforce of the enemy suffident to overpower the party and destroy
him, nor the ordering biraperemptorlly to furnish the Inforraation desired, nor
the imprisoning of hira until heshould disdose facts within hlsi^nowledge,
would constitute the defence of ^i^r^^^,where his life was not seriously threatenedor otherwiseput In actual peril.^^
PUNISHMENT. The penalty tobe awarded will properly dependnpon the
^ ^ t ^ ^ ^ of the offender,whetherti:^sonable,treacherous, or sympathetic
98^
with the enemy's cause,or comparatively innocentof any such feeling;
ui^onthe matter of the communication—whether benefidalto the enemy,
authentic and original, or mountlngmerdy tohearsayor rumor;^uponthe
manner and form of Imparting It—as whether it he communicated to the
enemy^sgovernment or Its official or military representative, or toaprivate
Individual, ^c. Thedeathpenaltyhas sometimes beenadjudgedra our practice foraviolation of this, as of the previous, Artlde.^but Imprisonment has
been themoreusualpunlshment,^^ Insoraecasesthesentencehas required
that the accused be sent without the lines of the army.^^
^^InSmithson'sCase, (G. 0.371 of 186^,^the letter conveying intelligence.to t ^
enemv was signed witha8ctitiousn.^me and enclosed in an envelope addrassed in cip^r.
See ^soacase of writingaietterwitha^ctitious signature in G.O. 203, Dept. of the
^^^^See^^e analogous case of entering the military service of the enemy nnder duress,
^^^^^'.^^^^^^^^^^^^^^^^^
^on

the^comments of the Secretary of War npon the ^dings in Casheli's Case, in

G.O. 250 of 1863.

^^^1^^^^^^^^^^^^^^^
^^^^^^^^^^^^^^^^
Dapt.of theTann.,18^.
^0

34627

776

MILITARY LAW ANDPRECEDENTS.

The law, as laid down i n t h i s case, is illustrated by the later instance,
occurring In 18^7, o f t h e Impressing Into the serviceof the United States by
Colonel A. S. Johnson, Incoraraandof theUtah expedition,of the teams and
propertyofcertainfrdghters,—in which judgments were rendered in favor of
tbesepartlesagainst theUnitedStates for the value of theproperty taken.
The military orders made and executed In this instance evidently
1208 "were,"observes Attomey General Eates,^"the wise and proper precautions o f a n officer toprotect his own force andprevent his enemy from
belngstrengthened;"andheholdstbat these orders andacts of Col. Johnson
were"justified by railitary necesslty,"thus contl-asting the case with thatof
Harmony ^.Mitchell, as adjudged.^
Amaterialdifferencebetween the cases of Mitchell and Johnson was that
the claims of tlie freighters in the latter were, by legislation of Congress,
referred to the Court of Claims for adjudication—which left little more to
that Court than to assess the value of theproperty taken. I t may be added,
as toMitchell'scase,that i t was clearly a hard one. and. by special Act of
March I I . 1852, he was relieved of the judgment against him, which was
assumed and paid by theUnited States.
ARREST AND RESTRAINT OF PERSONS. The Laws of War authorize
the arrest, trial and punlshraent of sueh of our own people as may become
chargeable with relieving orcoramunlcating withthe enemy.carrying on lllldt
ti-adeor Intercourse,orother violatlonof thoseLaws. Thellablllty anddlspositionof suchoffendershasalreadybeenlnpartconsideredunder
the^5th
and ^ t h Artides of War. and will be further discussed In treating of the
jurl^lctlon and powers of the MiLiTAi^^ Co:^^issio^. Therestraints which
maybeexerdsedover the dtizen will also enter into the consideratlonof the
subject of MAaTi^L LAW.
I L T H E L A W O F WAR AS AFFECTINGINTERCOURSEEETWEEN
ENEMIES IN GENERAL.
RULE OF NON-INTERCOURSE. The principle here to be noticed is simply that of the absolute non-intercourse of enemies in war. As frequently reiterated in the rulings of the Supreme Court, not merely the opposed railitary forces
but all the Inhabitantsofthebelligereot nations or distrietsbeeome, upon the
declaration or inltlation^ofaforeign war, or ofadvIlwar.(such as was
12(^ the late war of the rebellion,) the enemies both of the adverse government
andof eachother,^^andallintercoursebetween them Is terminated and
^^10 Opins. At. Gen., 23.
^See Irwin ^ . D . S . , 23 Ct. C l . , 1 4 0 ; l ^ . S . ^ . I r w i n , 1 2 7 D . S.,125; 10 Opins. At.
Gen., 21.
^As to what constitutes such declaration or initiation, see ^^^^,-"Fifty-Eighth Article,"
P a r t i , p. 668.
^^Vattel,321;Manning,166;Dana'sWheaton^ 345;l^ent,Com.,55;8alleck, 357;
Jecker ^.Montgomery. ISHoward, 112; White ^.Rurnley,20Id., 2:^0; Prl^eCases,2
Rlack,666^Mrs. Alexander's Cotton,2Wa^lace,274;TheVenice,ld.,418;CoppeiI^.
Hall,71d..242;Texas^.White,Id.,700;Lamar^.Rrowne,^2I^.S.,1^4;Ford^.Surget,
07 Id..504;Dow-^, Johnson,100Id.,164. ^'In tbestateof war nation iskoownto
nation only by their armed exterior;each threatening tbe other with conquest or annihilation. The Individuals who compose the belligerent States exist, as to e^cb other, inastate
of utter occlusion. I f t h e y meet.it is only in combat. War stripsman of his social
nature." TheRapld,8Cranch,160, (Johnson, J.^
This view, however. Is strongly combated by Rluntscbli (^ 531^. '^DlePrivaten,"he
writes, ^^als solche sind bei diesem Strelte nicbt unmittelbar betbelligt^ sie sind nicht
^reigs- und nicht Processparteien. und eben dessbalbnicbl. Feinde im elgentlichen nnd
vollenSinndesWorts."

11

34628

MILITARY LAWANDPRECEDENTS.

777

Interdicted.^* Hence the general rule that, pending the war, all domestic, sodal,
andbusinessrelatlonsarefordbly severed; all lnterehange,however personal
and Intrinsically harmless, is forbldden;no new contracts or engagements can be
entered into; existingpartnerships and joint undertakIngsaredlssolved,and
existingcontractsandpecunlary obligations are suspended,^and"theeourts
of each belligerent are dosed to the citizens of the other."^^
1211^

ENFORCEMENT AND VIOLATION OF THE RULE. The drawing
of strict army lines, the patrolllng,with troops or armed vessels, of the
territory,rivers,^c.,lnterveningbetween the belligerents, and the establisbmeut
.of railitary posts u^onraah^ routes of travel and ofblockades of important ports,
while raeasuresdcfensiveandoffensive as against thehostile forces, are also
efficient means for the enforcement of this rule of non intercourse. Infractions
of this rule, by selling to, buying fron^ or contracting with enemies, furnishing
them with supplies, corresponding, mail carrying, passing the li,nes vi^thout
authority.^c,are tB^o^^^^o^^o^^^^^^t^^o^t^r,more or less grave in proportion
as they renderraaterialaldor Information tothe enerayor attempt to do so,
and, as will hereafter be illustrated, are among tbe most frequents of the
offences triable and punishable by ^^^^^^r^oo^^^^^^^o^.
EXCEPTIONS TO THE GENERAL RULE—LICENSES TO TRADE. Ry
thecustom of war, however, certain exceptions have come, frora necessity or
considerations of policy or humanity, tobe admitted to the general rule of
non-intercourse. Araong theraorefamiliar of these exceptions are the useof
fiags of truce, the entering into armistices, cartels, or other conventions, and the
exchangeof prisoners of war. These willbe noticedunder the next Title, as
relating to the carrying on of war and the treatment of captives.
Amore distinctive exception is the licensing of trading betweenbelligerents.
Early in ourlate civil war,'^-hlch, because of its great proportlons,was asslmllatedtoaforeignwar, and inwblcb,as has been remarked, belligerentrights
were conceded by theUnited States to the Confederate forces,^^an Act of Congress of JnlyI8, 1861,c5,s. 5, in supplementing the law of war by spedfically
Interdicting coraraerdal intercourse with the Insurrectionary States, yet authorl^edthe President inhis discretiontolicense such intercourse inparticular instances when deemed conducive to the publicinterests. Such licenses being
exceptional, it was held by the Supreme Court tbat they were to be stridly
1211 construed;^^ also tbat no authority other than the President could granta
^^"Interdiction of trade andintercourse.direct or Indirect, is absolnteandcomplete by
themereforceand effect of war Itself." Pri^e Cases. 2 Rlack, 688. And see tbeother
authorities cited In last note;alsoWoolsey^ 117:Schooner^.Patriot,lRrock,42i;The
Julia andCargo.lGalllson.603;The Sea Lion,5Wallace.630;TheeuachltaCotton.6
Wallace, 521;Hanger^. Abbott, Id., 535;Mc^ee^.t^.S.,8Id., 163;!^. S.^. Lane. Id,,
1^5;'0. S.^.Grossmay^r,01d.,72;Montgo^ery^.l^.S.,15Id.,385;Hamilton^.Dlliln,
21Id..73;Mitchell^.LI.S.,Id.,350;Desmare^.I^.S.,^3,tl.S.,612;Rrown^.Hlatt,
IDillon,372 and 15 Wallace, 184.
^Hoare^. Allen.2Dallas.l02;Foxcraft^.Nagle.Id.,132;Msnning,176;andcases
cited in the two preceding notes. Rut war does not con^scatedebtsor property for the
benel^t of debtors.but only suspends the rlghtof action." Caldwell^. Harding.lLowell,
32^. As tothennlawfuines^of theact of drawing bill^by or upon enemiesdnrlng tbe
late war,seeRritton^.Rutler,ORlal^chford, 457; Williams ^.Mobile Sav, Rk.,2Woods,
501;Woods^.Wilder,43N.Y.,164;Lacy^.Sn^arman,12Heisk., 354. That exceptions
to the general rule stated in the text may he admitted Incases of prisoners of war drawing
bills for subsistence furnished them by enemies, (or for their ransom.^ see Antoine ^.
Morehead,6Taunton.237;Halleck,35^;Dio^S^.edlt.of 1868.P.202.
^^Rrown^. Hiatt, 15Wallace 184.
^^Dow ^. Johnson. 100 t^. S., 158; Stevens ^. Grl^th. I l l t l . S., 5 1 ; Freeland ^.
Williams. 131 U.S.. 416;!^. S.^.Paci8cR.R., 120 l^S.. 233.
^TheReform.3Wallace. 632;McClellan^^.l^ S..21Id.,08;Cutner^.D.S.,17Id..
617;M111ar^.D.S.8Ct.Cl.,487;Cone^tl.S.,Id.,421.

34629

UNITED STATES OF AMERICA

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

Government Targeted Brief
On Receipt of Intelligence
as a Requirement of
Aiding the Enemy
Enclosure 2
29 March 2013

gnc\ 1 to
APPELLATE EXHIBIT ^V0_
PAGE REFERENCED;^ _
PAGE OF PAGES

34630

^.

^^^^^^^^

^^^^^B

^^^B^^^^^^^^

^
^

^ ^ ^ ^ ^

A^IGF^^^

oi^

Gl^^^l^G^^
OF THE

JUDGE ADVOCATES GENERAL OF THE ARMY,
W I T H NOTES,
BY

COLONEL W. W I N T H R O P ,
A S S I S T A N T JDDGS-ADVOCATE-GENEBAL, UNITED STATES ARMY,
A U T H O R OF ' - M I L I T A K V L A W AND PRECEDEATS."

WASHINGTON:
OOVERNMKNT

PRINTING

OFFICE

1895,

^nnalr

34631

PREFACE.
This volume contains, with some omissions and revisions,
the abstracts of opinions published in the last edition of the
DIGEST , that of 1880, supplemented by selections from the
opinions rendered, by the Judge-Advocate-General, or Acting Judge-Advocate-General, of the Army, during the fourteen years succeeding. The present publication is the final
one of a series of issues under the same Title, prepared by
the author, of which the first appeared in 1866.
The citations of the " D I G E S T " inthe forthcoming new
edition of the author's work on MILITARY LAW AND PRECEDENTS, refer to this publication.
WASHINGTON,
D. C, January l, 1895.

The numerals at the end of the separate paragraphs (or
aentences) of the text refer to volumes and pages of the
official Becord Books of the Bureau, consisting of permanent
folios of which the volumes are designated in roman and
press books designated in arable.
3

34632

NOTICE.
While this work has been passing through the press there
has been published General Order, No. 16, of March 25,1895
amending G. O. 21 of 1891, "establishing limits of punishment for enlisted men of the Army." The amending order
should be taken into consideration in connection especially
with the within Titles of MAXIMUM PUNISHMENT, PREvious CONVICTIONS, and SUMMARY COURT.

34633

ARTICLES OF WAR.

41

amenable to trial and punishment by court-martial under
either Article.^ I I , 498; V, 291; X I , 215, 454.
2. During the late war, all inhabitants of insurrectionary
States were jjriwfl fade enemies iu the sense of this and the
succeeding Article.'* XIV, 266. A citizen of an insurgent
State who entered the U. S. military service became of course
no longer an enemy. So held, of a Lieutenant of the 1st E.
Tenn. Gavafry. X X I X , 206.
3. I t is no less a relieving an enemy under this Article
that the money, &c., furnished is exchanged for some commodity, as cotton, valuable to the other party. X I I , 385;
XIV, 266; X V I , 446.
4. The act of " relieviag the enemy" contemplated by tbis
Article is distinguished from that of trading with the enemy
in violation of the laws of war; the former being restricted
to certain particular forms of relief, while the latter includes
every kind of commercial intercourse not expressly authorized by the govemment. XIV, 266. [See LAW OF WAR § 1.]
FORTY-SEXTH ARTICLE.
"Whoeoover holds coireapondence with, or gives intelligence to, the
enemy, either directly or indirectly, shall suffer death, or such other
punishment as a conrt-martial may direct."

'Admitting this construction to be warranted so far as
relates to acts committed on the theatre of war or within a
district under martial law, it is to be noted that it is the
effect of the leading adjudged cases to preclude the exercise
of the military jurisdiction over this class of offences, when
committed by civilians in places not under military government or martial law. See, especially, Ex parte Milligan, 4
Wallace, 121-123; Jones r. Seward, 40 Barb. 503; also other
cases cited in note to COURT-MARTIAL, I I § 7.
* See the opinion of the U. S. Supreme Court, (frequently
since reiterated, in substance,) as given by Grier, J., in the
" Prize Gases,"2 Black, 666, (1862;) and by Chase, C. J., in the
cases of Mrs. Alexander's Cotton, and The Venice, 2 Wallace,
274,418, (1864.) In the latter case theChief Justice observes:
"The rule which declares that war makes all the citizens or
subjects of oue belligerent enemies of the govern in ent and of
all tbe citizens or subjects of the other, applies equally to civil
and to iu ternational wars," That an insurrectionary State was
no less "enemy's country," though in the military occupation
of the United States, with a military governor appointed by
the President—see opinion by Field J. iu Coleman v. Teunessee, 7 Otto, 616-517.

34634

42

ARTICLES OF WAR.

1. Held that the offence of Iwlding correspondence with the
enemy was completed by writing and putting in progress a
letter to an inhabitant of an insurrectionary State during the
late war; it not being deemed essential to this offence that
the letter should reach its destination.* IV, 368; V, 274,287;
X, 567.
2. I t is essential, however, to the offence of giving inUlligence to the enemy that material information should actually
be communicated to him; tbe communication may be verbal,
in writing, or by signals. XIV, 273.
FORTY SEVENTH- ARTICLE.
"Any officer or soldier who, having received pay, or having been dnly
enlisted in the service of the United States, deserts the same, shall, in
time of war, suffer death, or such other punishment as a court-martial
may direct; and in time of peace,any punishmeut,excepting death,
which a court-martial may direct."
SEE DESERTION.

FORTY-EIGHTH ARTICLE.
"Every soldier who deserts the service of the United States shall be
liable to serve for such period as shall, with the time he may have served
previous to his desertion, amount to tbe full term ofhis enlistment; and
such soldier shall be tried by a court-martial and punished, although
the term of his enlistment may have elapsed previous to his being
apprehended and tried."

The liability to make good to the United States tbe time
lost by desertion, enjoined by the first clause of this Article,
is independent of any punishment wbicb may be imposed by
a court-martial, on conviction of the offence: it need not,
therefore, be adjudged or mentioned in terms in a sentence.^
X L I I , 130. [See § 8, _po«f.] I f the conviction is dwajpprot?ethe legal status of the accused is the same as i f he had been
acquitted, and the obligation of additional service is of course
not incurred. X X V I , 668.
2. Where a deserter was sentenced to imprisonment for tbe
" balance of his term;" held that he was not absolved from
' Compare Hensey's Case, 1 Burrow, 642; Stone's Case, 6
Term, 527; Samuel, 580.
*8ee G. O. 21, Dept. of the Lakes, 1873; do. 94, Dept. of
the Missouri, 1867; G. C. M. O. 74, Dept. of the East, 1873.
The old ruling contra, (see G. O. 26, 45, Hdqrs. of Army,
1843,) may be regarded as abandoned in our law and practice.

./\mfTlr>

34635

UNITED STATES OF AMERICA

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

Government Targeted Brief
On Receipt of Intelligence
as a Requirement of
Aiding the Enemy
Enclosure 3
29 March 2013

pvxcV 3 t o
APPELLATE EXHIBIT SU>
PAGE REFERENCED:
PAGE
OF
PAGES



-5


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34657

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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