Title: Volume FOIA 107

Release Date: 2014-03-20

Text: 34658

Volume 107 of 111
SJAR ROT
FOIA Version

VERBAT IM 1

RECORD OF TRIAL2

(and accompanying papers)

of
(Name: Last, First, Middie initiai) (Sociai Security Number) (Rank)
Headquarters and
Headquarters Company,
United States Army Garrison U-S- Army FCDIJC Ml/er: VA 22211
(Unit/Command Name) (Branch of Service) (Station or Snip)
By
GENERAL COURT-MARTIAL
Convened by Commander

(Titie of Con vening Authority)

UNITED STATES ARMY MILITARY DISTRICT OF WASHINGTON
(Unit/Command of Con vening Authority)

Tried at

Fort. Meade, MD on see below

(Piace or Piaces of Triai) (Date or Dates of Triai-9

Date or Dates of Trial:

23 February 2012, 15-16 March 2012, 24-26 April 2012, 6-8 June 2012, 25 June 2012,

16-19 July 2012, 28-30 August 2012, 2 October 2012, 12 October 2012, 17-18 October 2012,
7-8 November 2012, 27 November - 2 December 2012, 5-7 December 2012, 10-11 December 2012,
8-9 January 2013, 16 January 2013, 26 February - 1 March 2013, 8 March 2013,

10 April 2013, 7-8 May 2013, 21 May 2013, 3-5 June 2013, 10-12 June 2013, 17-18 June 2013,
25-28 June 2013, 1-2 July 2013, 8-10 July 2013, 15 July 2013, 18-19 July 2013,

25-26 July 2013, 28 July - 2 August 2013, 5-9 August 2013, 12-14 August 2013,

16 August 2013, and 19-21 August 2013.

1 insert ?verbatirri or ?surrimarizeo? as appropriate. This form be used by the Army and Navy for verbatim records of triai

2 See inside back co ver for instructions as to preparation and arrangement.

DD FORM 490, MAY 2000 PREWOUS OBSOLETE Front Cover

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34662

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 Eneray
Endosure 4
29 March 2013

M -to
APPELLATE EXHIBIT 5(0
PAGE REFERENCED:
PAGE
OF
PAGES

34663

DEPARTMENT OF THE ARMY PAMPHLET

27-100-30

MILITARY LAW
REVIEW
VoL30
.Articles
NUCLEAR WEAPONS AS A LAWFUL MEANS
Captain Fred Bright, Jr.
TREASOS AND .AIDING THE ENEMY
Caplain Jabez IV. Loane, I V
THE SIGNIFICANCE OFTHE JENCKS ACT IN MILITARY LAW
Major Luther C. West
\

Comments
ASSASSINATION IN WAR TIME
LEGAL SUPPORT REQUIRESIENTS FOR CIVIL AFF- IRS
OPERATIONS IN COUNTERISSURGENCY
SOME OBSERVATIONS ON LESSER INCLUDED OFFENSES

[HEADQUARTERS, DEPARTMENT OF THE ARMY
OCTOBER 1965
1

34664

TREASON AND AIDING THE ENEMY*
BY CAPTAIN JABEZ W . LOANE,

I.

IV**

INTRODUCTION

It has been said that no crime is greater;' it has been termed
. . the most serious offense that may be committed against the
United States;" ^ it has been classified as "the highest of all
crimes." ^ Chief Justice Marshall once commented: "As there is
no crime which can more excite and agitate the passions of men,
no charge demands more from the tribunal before which it is
made a deliberate and temperate inquiry." * All of these quotations refer to the same offense — the crime of treason.
It i& a crime which, in many ways, is set apart from all others.
It is the only crime specifically denounced by the Constitution of
the United States.^ It is the only federal crime upon which conviction must be predicated on the testimony of two eye-witnesses
to the overt act of the oflense.6 I t may only be committed in time
of war or quasi war since it must be predicated either in levying
war against the United States or in aiding an "enemy." It is the
only crime which, i f successfully committed, may cease to be a
crime. As Sir John Harrington noted:
Treason doth never prosper; what's the reason? Why, i f it prosper,
none dare call it treason.'
* This article was adapted from a thesis presented to The Judge Advocate
General's School, U.S.Army, Charlottesville, Virginia, while the author was
a member of the Thirteenth Career Course. The opinions and conclusions
presented herein are those of the author and do not necessarily represent
the views of The Judge Advocate General's School or any other governmental agency.
JAGC, U. S. Array; Office of the Staff Judge Advocate, Hq, U. S. Army,
Europe; A.B., 1953, Duke University; LL.B,, 1956, University of Maryland;
Member of the Bars of the State of Maryland, the United States Supreme
Court, and the United States Court of Military Appeals.
' Hanauer v. Doane, 79 U.S. (12 Wall.) 342, 347 (1870).
'Stephen v. United States, 133 F.2d 87, 90 (6th Cir.), cerf. denied, 318
U.S.781 (1943).
"Charge to Grand Jury, 30 Fed. Cas. 1024, 1025 (No. 18269) (CCD.
Mass. 1851).
" Marshall, C. J., in Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 125 (1807).
' U. S. CONST, art. I l l , § 3.

^ Ibid. This assumes, of course, a plea other than guilty. However, it
should be noted that some states require two witnesses to any crime punishable by death. See State v. Chin Lung, 106 Conn. 701, 139 A. 91 (1929).
'FAMILIAR QUOTATIONS 29 (12th ed. Morley Ed., 1951).
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^0 MILITARY LAWREVIE^^
Throughout tbeages tbe motivations fortreasonbavebeen as^
numerous as tbecrimes themselves Some haye committed treason
for money, some for pride, power, or prestige, some for moi^e
elusive ideological goals. In medieval England, wbei^e our exploration of tbe law begins, tbe treason cases generally dealt
witb machinations against tbe monarch or in plotting to alter
tbe succession to tbe throne. In tbe days of Elizabeth I , tbec^.^es
developed areligious,flavor. In later years, tbefactors bave included financial gainorpolitieal conviction.Today tbe suggestion
bas been advanced tbat tbe modern scientist, because of tbe
universality of bis technical knowledge, feels himself under a
lesser duty to obey national loyalty,^
Tbe annals of treason bave tainted tbe rich and poor alike;
tbepowerfnlas well astbecommon citizen. Through its history
bave passed sucbnotablefigures as Thomas Becket, Sir Walter
Raleigb, Anne Boleyu, SirTbomas More, Benedict Arnold, and
Jefferson Davis; it bas included sucb strange personalities as
GuyFawkes, Jobn Brown, William Joyce and E^ra Pound. And
itbasencompassedtbeunnumberedbundredswbopassedtbrougb
tbe musty volumes of tbe State Trials^ on tbeir way to tbe
"usual punisbment"and oblivion.
It is not tbe purpose of tbis article to examine tbese individuals
indeptb or tbe details of tbe "offenses" wbicbbrougbt tbem to
trial. Ratberit is intendedto explore tbebistorical development
of tbe ciyil offense of treason and tbe parallel military offense
of aiding tbe enemy; to compare tbetwo; and to consider tbe
defenses to tbe respective offenses. Eor indeed, until compai-atiyely recently, tbemerefaet oftbe indictment wa5 tantamount
to conviction and little other than outright denial was available
to an unfortunate defendanl^.
It is hoped tbat tbis article will help to solve some of tbe
many problems wbicb may easily be conceived.Wben,forexample,
may an American sufficiently shake o^ bis citizenship tbat be
can aid America's enemy and avoid a treason cbarge7Is physical oppositiontotbe enforcement of tbelaws of tbe United States
by its officers treason71f so, weretbestudents attbeUniversity
of Mississippi guilty of treason by participating in tbe 1^^^
riots7 Can a citizen "adhere" to an enemy witbout "aiding"
^WFST, Tl^^ N^^v ^^ANINO 01^ Ti^A^ON (19^4).
^Howell, A Complete Collection of StatcTrials and Proceedings for High
Treason and Gther Crimes and Misdemeanors from the Earliest Period
the Present Time (1816) thereafter cited as How.^t.Tr.^
.^CO 53^4^

34666

^^A^Ol^
bim, and, conversely can hc "aid" tbe enemy witbout "adher^
cnce^^^ Is a soldier wbo conducts propaganda lectures for tbe
enemy in a POW camp guilty of giving tbem ^^aid^^^ I f so would
itmakeanydiflerence if none of tbe otber prisoners were affected^
What is tbe s^tus of tbe alien wbo resides in tbis country^ Is
tbis status aflected i f be is a citi7:en of an ^^enemy" country^
Tbe situations may be ingenuously contrived. Tbe courts must
wrestle fortbe answers.
IL
A

THE HISTORY OF TRiEA^Gl^
^^^A^G^^^^^^^G^G^O^^

There is no better introduction to tbe law of treason in tbe
United States than a short review of tbe English law, since tbe
present American law is direcly traceable to a statute published
by Edward H I in I3oO.^^ During tbe early fourteenth century
England was in a state of flux. Tbese were days of constant civil
war attended by one parliamentary crisis after anotber. Wben
one faction gained power it frequently subjected tbe nobles and
landowners of tbe otber to tbe harassment of trial for treason
based solely on political or quasi-political considerations. As no
legal definition of treason existed, no one could foretell what
action or word might be interpreted as committing tbe offense.^^
An additional troublesome area concemed tbe fact that lands
and possessions of anyone convicted of treason were subject to
attainder or forfeitures^
There was, understandably, increasing agitation tbat tbe oflense
be more rigidly defined. To tbe barons and large landowners tbis
argument was quite persuasive in view of the forfeiture provisions.^^ In addition, tbe definition was ^ importance in restraining tbe power of tbe crown to suppress any subject by arbitrary
construction of tbe law.
Statnte of Purveyors, 13^0, 2^ lEdw 3, Stat^, c 2.
For the proposition that i t was still dii^cdt to t d l after the statute see
Carpenters Case, 11 Henry V I (1494), digested in Blli^o, A S6I.6cno^ 0^
CASES ri^oi^ ru6 SrAr6 Tl^iArs 29 (1st ed. 18^9), where a convicted wife
ranrdcrcr was also adjudged ^ traitor in order that hc raight receive the
greater pnnishracnt as an "exaraple." The sarac fate befdl the convicted
ranrdcrcr of the Duke of Glouchester, Proceedings Against lohn Hall, 1
How St:. Tr 1^2(13^^).
Clarke, ^^^^^^^^^.^
^^^^.^^^
14 ItovAr His^. Soc. ^I^a^s.
4th
(1^31).
Perhaps because of continuing pressure Edward 111 further raodihed
the attainder provisions in 13^0 to provide no forfeiture for persons not:
attainted in their lifetirac. Statute of ^estrainster, 13^0, 34 Edw. 3, c. 12.
ACO ^38^a

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^0 MILITARY LAWREVIEW
Eventually tbcKing yielded to tbe pressures. Tbere resulted
tbe famousstatuteof
Edward 111 wbicb defined tbe offense
asbeingcommitted:
When aman doth compass or imagine the death of our lord the ^ing,
or of our Lady his Queen, orof their ddest son andheir; or if a man
doth violate the king's companion, or the king's eldest daughter unmarried, or the wife ^of^ the ling's eldest son and heir; or if a man
do levy war against our lord the ^ing in his realm, or be adherent to
the king's enemies in his realm, giving them aid and comfort in the
realm or elsewhere, and thereof be provahly attainted of open deed by
t'^^ people in their condition."

Tbe Statute goes on to definefive Otber acts wbicb mayconstitute
treason (e.g., counterfeiting,assaulting certainof tbeKing'sof^cers),and concludes witb what, for those days, mustbavebeen
a novel proposition, tbat no otber act would constitute treason
unless made soby act of King and Par^iament,^^ Shorn of tbe
language concerning tbe monarcb and those portions intended
to purify tbe succession, tbe statute can befairly said to state tbe
Americandefinitiontoday.
Tbat Edward I I I delined tbe offense was laudable. Yet many
oftbepre-statutory problemsremained.One reasonfor tbis was
tbat tbe courts possessed tbe power of interpreting tbe statute
and could thus put wbatever meaning tbey cbose on sucb vague
phrases as "compass or imagine" and "giving tbem aid or eomfort.^^^^ln 1(^^^,forexample, members ofariotous group engaged
inpullingdown"bawdy bouses" wbo failedto obey aConstable's
ordertodesistwereconvictedof treason, tbe court holding tbat
tbis constituted"levying war"againsttbel^ing,^^ An additional
problemwas tbe personality of tbe monarcb.Undertbe"strong"
monarcbstbeoffensetendedtobavemucb wider definition. During tbe reignof Henry VIII,tbe crime is considered to bavebad
its widest interpretation. As a matter of fact, Henry VIII extended treason to cover sucb situationsas wishing barm to tbe
Kingor cailingbim atyrant." However, areading of tbe cases
in^bedays of Elizabeth Iwould tempt acontrary conclusion as
^^Statute of Purveyors, 1350,^^Edw 3,Stat 5,c ^
^^.^^^^
^^For an extreme position see the Trial of Algernon Sidney, 9 How. ^t.
Tr. 818 (1683). Sidney was convicted solely on evidence of possession of
unpublished manuscripts. It is dif^cult to see how this "compassed the
death"ofthe^ing
^^Trialof Peter Messenger,6How^^.Tr 879 (1668)
^^For a good discussion of treason during the rdgn of Henry VH1, see
Thornily, 7^^^ 7^^^^.^^^^ ^^^^.^^^^^B^^ ^ ^^^^^ V^.^^, 11 l^o^^r HiST. S^.
Ti^^^s. 3d ^7(1917)

4^

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34668

TREASON
to treason's golden age. It is reported tbat after tbe Noi-tbern
Rebellion of l^^^,Eli^abetbbadsome 1,^0(^ peasants executedas
traitors, many on mere suspicion, and witbout tbe benetil of a
trial.^^
Thus, notwithstanding tbe apparent clarity of ^be Statute of
Edward I I I , tbe law of treason continued to be drawn by a
wavering band.Justice was dependent upon tbe wbimof tbe King
or tbe policy of thejudge. Tbe rights of an accused seemed to
bave returnedto tbe early days of anarchy.Itwas not until 1^^^
tbat tbe substantiye law was backed upbyproceduralguarantees.
Tbis was tbe date of tbe enactment of tbe so-called "Treason
Trials Act" wbicb was toplay an important part intbe gi^owtb
of tbe American law,^^ Considering tbebarsb justicemeted out
by tbeTudorcourts, tbis statute isremarkable in expanding tbe
rights of an accused. First, it provided tbat tbe accused was
entitled to a copy of tbe indictment fiye days prior to trial
(although not tb^ names of tbe witne^^es),^^ Secondly,be was
entitledtoberepresentedbycoiinsel.^ Commoners weregranted
a jury trial consistingof I ^ freeholders wbo were required to
vote^nanimously in order toconvict,^^ In addition, a statute of
limitations was established as three years,^^ But finally, and
most important, it spelled out anotber rule wbicb bas come to
be regarded as fundamental. In tbe absence of a confession a
conviction could only be bad by tbe testimony of at least two
witnesses to tbe overt act of treason.And it was carefully
postulated tbat if two or more treasons were charged in tbe
indictment itwasnecessary tbat tberebetwo witnesses to eacb
separate act,^^
In concluding that the English law bas carried over almost
verbatimtotbe American itmaybewelltotouebtangentiallyon
tbeonepbase wbicb, fortunately,basnot. Thatwas tbe so-called
"usual sentence" wbicb was meted out to tbe convicted traitor.
^^Bl^^n,^^.^^^.^^^^^note l^at^l9
^^^StatuteofWestminister,1695,7^8William3,c 3
^^7^^^
Prior tothis actcounsel wasforbidden. Theaccused could merd^representhimself andthis was largdyat the mercy of the attorney forthe crown.
For a notorious example see the prosecution by Edward Coke in the Trial
of S i r W a l t e r l ^ a l c i g h , ^ H o w ^ t . T r 1 (1603)
-^^Alsotoacquit.
Probable motivated by the case of thetrial of Colond Algernon Sidney,
9 How. ^t. Tr. 818 (1^^^), who complained that the evidence against him
may have been 20 to 30 years old. He was executed.
^^StatuteofWcstministcr,i7^^2,7^8William3,c 3
^^7^^^

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30 MILITARY LAW REVIEW
An illustration of the hideous barbarism can be vividly demonstrated by the sentence given Thomas Howard, Duke of Norfolk,
in 1571:
Wherefore thou shalt be had from hence to the Tower of London, from
thence thou shalt be drawn through the midst of the streets of London
to Tyburn, the place of execution; there thou shalt be hanged, and being
alive thou shalt be cut down quick, thy bowels shall be taken forth of
thy body, and burnt before thy face, thy head shall be smitten off,
thy body shall be divided into four parts or quarters; thy head and
thy quarters to be set up where it shall please the queen's majesty to
appe?.r; and the Lord shall have mercy upon thou."

For commoners the sentence often included tbe removal of privy
parts prior to disemboweling.-^ The Duke was lucky. As witb
most nobles, bis sentence was commuted to simple beheading.
Others were not so fortunate. It is surprising tbat this sentence
continued to be given in tbe Nineteenth Century,^^ and is reported to have been pronounced (although not carried out) as
late as 1867.By tbis time tbe minimum penalty in tbe United
States was five years imprisonment and a $10,000 fme.
It does not appear that any consideration was ever given to
adopting the "usual sentence" in the United States.
B.

THE CONSTJTVTIONAL

VIEW OF TREASON

Prior to the Revolution tbere existed in the colonies a variety
of statutes, decrees, and royal grants which recognized tbe existence of tbe crime of treason.Reported law prior to the formation
of the United States is rare. The only available extensive record
of trial is the case of Colonel Nicholas Bayard who was tried in
tbe province of New York for bigb treason in 1702.^^ Bayard
was tried under a New York statute which provided that it was
treason to disturb "by force of arms, or other ways, . . . the
peace, good, and quiet of this tbeir majesties' government, as it is
now established . . . ." 33 Bayard's offense appears to bave been
tbat of circulating a petition deemed critical of the provincial
government. Notwithstanding an opinion from tbe attorney genTrial of Thomas Howard, Duke of Norfolk, 1 How. St. Tr. 957, 1031
(1571).
"See, e.g., Trial of William Parry, 1 How. St. Tr. 1095, 1111 (1584).
See, e.g., Trial of E. M. Despard, 28 How. St. Tr. 346, 527 (1803).
WEYL, TREASON 7 (1950).
" For a collection of the various Colonial laws see, Hurst, Treason in the
United States, 58 HARV. L . REV. 226 (1944).
Trial of Colonel Nicholas Bayard, 14 How. St, Tr. 471 (1702).
" Id. at 473.

48

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TREASON
eral tbattbis didnot amount totreason, Bayard wastried, convicted and given tbe "usual sentence."Fortunately, tbere was a
cbangeof Governorsandtbeconviction was reversed. Tbe point
to be drawn from tbe case is tbat, notwithstanding tbe fact tbat
tbe trial was predicated on aNew York lawbearing no signilicance totbe Statute of Edward 111, thelegal argumentsintbe
case all revolved on tbat English statute.While tbe language
maybave been changed to ^t tbe immediate needs of tbe emerging
colonies, tbe image of treason continued in its Englisb form.
During tbe Revolutionary War, treason underwent a change.
Tbe emerging states began to enact laws making it treason to
adhere to George I H o r b i s f o r c e s Tbese varied in language
but all followed tbe Statute of Edward lll^eitber by similar
language or byexpressreference.^^
Wbentbe framersmetto establish aConstitutionadetinition
of treason was indeed important intbeir minds. But tbere must
bave been much soul searching. In tbe first place, tbe framers
bad just finished committing treason themselves,atleast sofar
as tbe English were concerned. On tbe otber band, tbey bad
vividrecollections as to tbe danger.of internaltreason. Tbe plot
of Benedict Arnold and tbe activities of tbe loyalist Tories bad
almost wrecked tbe fledging nationtbey were striving to promote.
How sbould treason be delined—by tbe Constitution itself or
tbe Congress7TbePinckneyReport,^^ provided for it to be done
by Congress,So, apparently, did tbe New Jersey plan.^^ But
thereafter,tbeframers bad secondtbougbts,ltmaybe surmised
tbat tbey, like tbe barons of 1^50^ felt tbe offense of treason
needed a rigid definition, free from the whims of a subsequent
legislativebody. Tbe Committee on Detailrejectedbotbproposed
versions andsubstituted its own:
Treason against the United States shallconsist only inlevying war
against the United States, or any of them; and in adhering to the
enemies of the United States, or any of them. The Legislature of the
United States shall have the power todeclarethe punishment of treason.

^^7^
^Hurst,^^^^^-^note31,at^^^,^^^-^^.
Charles CPinckney,delegate from South Carolina.

F'Ai^i^ANn, l^rcoi^n^ or mr F^i^^R^i. Co:^vri^rio^ of 1787, at
(1937).
^^^F^i^i^A^i^,^^.^^^..^^^^^^ note37,at 614.
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No person shall be convicted of treason, unless on the testimony o f t w o
witnesses. No attainder of treason shall work corruption of blood nor
forfeiture, except duringthe life of the person attainted.'"

TbeLegislaturewas to retain tbepower to fix tbe punishment
but not to detinetbe crime. Understandably tbe debates on tbe
subjectproved lively,^^ JamesMadison opened tbeissue by contending tbat tbe proposed detinition did not go as far as tbe
Statute of Edward I I I andtbatmorelatitudeougbttobeleftto
tbestates.Madison'stbinkingontbelatterwasdoubtlessly influencedbytbeVirginiaexperienceofBacon's rebellion wbicb was
directly solely against tbe local government. Tbe thrust of bis
contention involved aproposal toinserttbepbrase "giving tbem
aid and comfort." Interestingly enougbtbe delegates themselves
split on tbe effect of sucb insertion. Some tbougbt tbe words
would extend tbe definition of treason; some, witb whom tbe
autborconcurs,foundtbemrestrictive;some were satisfied tbat
tbey weremere words of explanation. Intbe end,tbemotion to
insert tbe words c a r r i e d . A sbarpdisputenext developed asto
wbetber tbe states would still retain tbe right to enact laws for
treason against tbe state. Madison wanted tbem to retain tbis
power. By a ^ to ^ vote, tbe delegates voted to limit tbe constitutional provision to treason "against tbe United States."^^
At Dr. Frankin's urging tbe language requiring two witnesses
to tbe same overt act, one of tbe guarantees of tbe Treason
Trials Act, was included by an ^ to 3 majority.^^ Final debate
centered about wbetber to permit confession in opencourt alone
to be sufficient for conviction. Tbe delegates agreed tbat sucb
wouldsuffice, although some consideredtbelanguagesuperfluous.
It was inserted.
In conclusion, tben, tbe delegates bad hammered out what
would tbereafter constitute treason against tbe United States.
Tbe end product, wbicb was included in tbe new constitution,
provided:
Treason against the United States, shall consist only in levying war
against them or in adhering to their enemies, giving them Aid and
Comfort. No person shall be convicted of Treason unless on the Testi^^^2:id.at 182
^ ^ S e e ^ a t 345-^50:^Ar^isON. TuE DEBATES IN m^pEOERALCoN^^N^^iON
01^ 1787 WUICHri^A^EI^ THE CONSTITUTIONOr THE UNIT^OSTAT^S O^A^ERiCA,430-34 (Int'l ed,Hunte Scott ed 1920)
^^2FB^i^^Ni^,op.c^^^.supranote37,at^4o-^^.

"Id at 349
^^7^. at 348

50

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34672

TREASON
mony of two Witnesses to the same overt Act, or on Confession in open
Court."

A reading of the provision discloses a final sentence as to which
no discussion is found in tbe available records.
The Congress shall have the Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attainted."

One problem alone remained for discussion — sbould the President
have tbe power to pardon convicted traitors. Virginia supported
an exception to tbe executive pardoning power of tbe President
is cases of treason. Reasoned Mr. Randolph: "The President himself may be guilty." ^"^ But tbe counter-argument ran that pardon
is a necessary power and tbat should tbe President himself commit tbe offense be could always be impeached.^^ On the vote only
Virginia and Georgia supported tbe motion.**
C.

THEDE VEL OPMENTOFTHEFEDERALLA

W

Having been given the authority Congress proceeded quickly to
implement it. The Act of April 30, 1790, after carefully reciting
tbe substantive guidelines specified by tbe Constitution, set tbe
punishment for treason as deatb.'*^ In establishing procedural
safeguards, Congress included its up-to-date version of tbe Treason Trials Act and specifically permitted an accused qualified
counsel and the authority to subpoena defense witnesses.** It also
required that the accused be furnished a copy of the indictment
and the names and addresses of prospective jurors and witnesses
at least three days prior to t r i a l . T h e act entitled tbe defendant
to challenge up to 35 jurors peremptorily, and, concerned about
a failure to plead, provided tbat if tbe accused either stood mute,
or refused to plead, tbe court would proceed to try the case as
on aplea of "Not Guilty." "
It was under this statute that the courts had their first taste
of "American Plan" treason. During the administration of Wash*• U.S. CONST, art. I l l $, 3.

" It was apparently lifted from an earlier draft and inserted by the Committee of Style. See 2 FARR.^ND, op. cit, supra note 37, at 601.
" M. at 626.
The counterargument was made by Mr. Wilson of Pa., who had recently
represented four defendants tried for treason in Pa. courts.
" 2 FARRAND, op. cit, supra note 37, at 627.
" Act of April 30, 1790, 1 Stat. 112.
" 1 Stat. 112, at 118.
" 76;W.
" 1 Stat. 112, at 119.
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ington and Adams the new treason law was applied twice. One
instance arose out of the "Whiskey Rebellion" of ^7^4^ the
second out of "Erics'Rebellion"in 179^.Both involvedajudicial
interpretation ofwhat constituted "levying war." Shortly thereafter came themacbinations of Aaron Burr and the subsequent
trials of the ex-Vice President and others for treason. Burr's
case involved the technical legal problems involved in proving
the "overt act."
The states proceeded to enact their own laws of treason as
they werepermitted todounder the Constitution.But the applications of such statutes has been minimal. Only two cases of
completed prosecutions by a state have been uncovered: one
involvingThomasDorrbyRhodelsland,andone involving John
Brown by Virginia.^^Theformer was sentenced to prisonfor life,
the latter was executed. John Brown and five of his band of
raiders bold the distinction ofbeing the only men executed for
treason by either state or federal authorities in tbe United
States.^^
As the nation grew the number of prosecutions for treason
continued tobe few. Trueeach war brought its share of recalcitrants. The War of l^l^had its Federalists and tbe Mexican
War its W h i g s , B u t military oppositionto the Government by
its citizens did notoccur again until 1^57.This was thefull scale
disobedience by theMormonsinUtahtbateventuallyled to military opposition to the Army units sent to restore order. With
uncharacteristicfury,President Buchanan issuedaproclamation
to the Mormons:
Fdlow citizens of Utah^ this is rebellion against the government to
whichyouoweallegiance H i s levying war against theUnited States,
and involvesyou in the guilt of treason. Persistence in it will bring you
to condign punishment, to ruin, and to shameB^

The Mormons desisted, but the nation was on the verge of
itsgreatest crisis,theresult of which was to temper thepunishmentfortreasonand to create tbesimilar,but less odious,offense
of engaging or assisting in a rebellion. Were the Confederates
traitors^ The South contended that secession was a right and
thatthe secessionists werenomore traitors than the embattled
Hurst,.^^^^^^notc31,at 807.
^^WE^r,^^^^t,.^^^^^^notc30,at 238,260
^^7^.atl63^86,201^1L
^^Froclama^ion of April 6, 1858, I I Stat
.^^^^^^notc 30, 212^37.

(App) 7^^. See also ^^^^^^
^C053^4a

52
11

34674

TREASON
patriots atBunker Hill.TbeNorthheld the view that they were
insurgentsand rebels, and thus could only be consideredtraitors.
The courts resolved the problem in favor of the United States
early inthe war. Said IheSupreme Court,"They ^Confederatesj
. . . are none tbe less enemies because they are traitors.^^^^ A
District Judge elaborated:
This is a usurpation of the authority of the federal government. It is
high treason by levying war. , . . The fact that any or all engaged in
the commission of these outrageous acts under the pretended authority
of the legislature, or a convention of the p^opl^ , . , does not change
or affect the criminal character of the act. Neither South Carolina nor
any other state can authorise or legally protect citizens . , , i n ^^-aging
war against theirgovernment,any morethantheQueenof Great Britain
or the emperor of France.'"

But holding thatthe Confederates were traitors,created additionalproblems.The mandatory sentence on convictionwasdeath
under the 17^0 statute. Eor the occasional treason this was
deemed appropriate.But now,according to the courts,there were
half amillion traitors under arms andmany more giving them
aid and assistance.Itwas easyto foreseeabloodbathofenormous
proportions if the law was applied. Congress foresaw that the
Civil War made themandatoi^^ death penalty obsolete. Accordingly, in l^^^,the lawwas amended toprovide that henceforth
tbe convicted traitor "shall suffer death , . .or,atthediscretion
of thecourt,he2hallbe imprisoned for not less than five years
andfinednotlesstbantentbousanddollars."^^ At tbe same time
Congress also established tbe offense of engaging or assisting
in rebellion, and authorized the seizure and sale of enemy
property.^^ Eor engaging in or aiding rebellion the maximum
punishment was establishedattenyears imprisonmentor afine
of ten thousand dollars, or botb,^^
Theeffectof thislegislation was threefold, First, itpreserved
the Act of 17^0prescribing the penalty of death in force for
tbe punishment of offenses committed prior to 17 July 1^^^.
Secondly, it punished treason committed after that date with
death or fine and imprisonment unless the treason consisted of
^^Pri^e Cases,67US (2Black) 63^,674 (186^).
Charge to Grand Jury, 30 Fed Cas 1032, 1033 (No 18270) (C.CS.I^,
N y I86I). Sec also United States v Greathouse, 26 Fed Cas 18 (No
I^2^4) ( C C N D Cal 1863); L^nitcd Statesv Greiner, 26 Fed Cas 36
(No 1^262) (E D Pa I86I).
^^Actof Jul^I7,1862,12Stat^89,
^^^12Stat^89,at^90-^9I,
^^12 Stat 589, at ^91,
^0023^4^

12

34675

30 MILITARY LAWREVIEW
engaging or assisting in rebellion. Inthelattercaseitabandoned
the deathpenalt:y entirely. Theoffenseof engaging in rebellion,
designed exclusively to cover the Civil War, remains in force
today.^^
Tbe transitionof tbe treason actof 1790, withthe graft of the
13^^ statute,intothe current law oftreason isaproblem of only
minor semantics. I t is sufficient for comparative purposes that
thecurrent code provisionbe quoted without further comment:
Whoever, owing allegiance to the United States, levies war against them
or adheres to their enemies, giving them aid and comfort within the
United States or elsewhere, is guilty of treason and shall suffer death,
or shall be imprisoned not less than tive years and tincd not less than
^10,000; and shall be incapable ofholding any oflice under the United
States"^

IIL
A

TWOTYPESOETREASON
T^^^y^^^V^^^^l^^^^Gll^^^

While the vast majority of the early English treason trials
were concerned with the offense of compassing the King'sdeath,
somefew were addressed to the problem of treason by levying
war. Where the former, because of the wide construction to
which it was subject, gave the courts little trouble, the latter
forced tbe development of at least rudimentary legal concepts
which could be applied with some consistency. The construction
of compassing theKing's demisestill played a part,but an increasingly minor one. Thus while conspiring to levy, without
more,was held not to constitute treason by levying war, itwas
still held to be compassing tbe King'sd^atb.^^
Participating in a rebellion aimed at tbe overthrow of the
government or enlisting in a foreign army intending the same
result seems clearly violative of this offense. Less clear is the
area of riot or disorderly conduct not amounting to full scale
insurgency. The case involving the tearing down of "bawdy
bouses" bas already been citedfor its unusual interpretation of
"levying war,"^^ The recordoftrialdisclosesthatamob of some
500,semi-organized and carryingindiscriminate weapons,not only
dismantledthe offending houses, but beattheconstables sentto
^ ^ S e e l 8 U S C ^ 2383 (1958)
^^^18USC^ 2381 (1958)
^^TrialsofTwentyNinePcgicides,5HowS^. ^.947,984 (1660)
SccTrial of Peter Messcnger,6HowS^. Tr 879 (1668).
ACO 23^48

1^

34676

TREASDN
disperse tbem and shouted"Down with the redcoats^" TheChief
Justice sawno humor when be charged thejury:
Ry levying of war is not only meant, whcnabody is gathered together,
as an army is, but if a company of people will go about any public
reformation, this is High Treason, if it be to pull down inclosures, for
they take upon them the regal authority; the way is worse than the
thlng.^^

Sir MatthewHale dissented. He viewed the situation as nothing
more serious than disorderly conduct.^^ But the English courts
quickly backedoff fromtbisbroad construction. Thereafter, the
prosecutions for treason by levying war, arisingout of domestic
disturbances, were limited to such situations as where mobs acted
with force to prevent theexecutionof alaw,^^ or rioted to force
the legislature to repealanunpopularstatute.^^
TheUnited States faced asimilar situation in its history. In
1794,the^W^bi^^key Rebellion" flared inthe western countiesof
Pennsylvania in resistance to at^onspirits,^^ Federal officers
were first threatened, the assaulted. In July of I794 amob attacked the home of the chiefexcise officer whichwasdefended by
a number of men including Irregulars from Fort Pitt. After
a day long siege the garrison surrendered and tbe bouse was
burned. Subsequently, the mob, in a show of force, marched
through Pittsburgh,although nofurther violence developed with
the garrison.Tbe arrivalof troops from Philadelphia put anend
totheuprising. Anumber of theparticipants were apprehended
and charged with treason. Only two persons, however, were
actually brought totrial.^^ Inthe ^^tc^^^^casethe defensecontended that the attackon the exciseofficer'shomewasan attack
on him as an individualand not in his capacity as an officer of the
United States,and, further thatthere was no attempt toresist
the law on a nationwide scale. The argument was simply that
this was a riot, but not treason. Justice Paterson charged the
jury:
^^7^at 884.
^^7^. at911,Inatimc whenacquittals intreasoncases were notably
few, six of the 14 defendants were acquitted outright and four convictions
werelater reversed.
^^Sec Trial ofSirJohnFreind, 13 How St^.Tr 1 (1696).
See Trial of George Gordon, 21 How St:.Tr 485(1781).
^^^Forafullaccountof the incident see t^nited Statesv Insurgents, 27
Fed Cas 499 (No 15443) (C C D Pa 1795).
^^SeeUnitcdStatesv Vigol,28Fed Cas 376 (No 16621) (CCD Pa
1795); United Statesv Mitchell, 26 Fed Cas 1277 (No 15788) (CCD
Pa 1795),
ACO ^3^48

14

34677

30 MILITARY LAWREVIEW
If ^the object of theinsurrection^ was tosupprcsstheexciseoflices, and
toprevent theexccution of an act of congress,b^ force andintimidation,
the offense, in legal estimation, is high treason; it is a usurpation of
the authority of government; it is high treason b^ levying of war.^-

Both defendants were promptly convicted and sentenced to
death.Bothwere later pardoned.7^
If the actions of the "whiskey Rebels" clearly evidence a
determined effort to oppose an act of Congress, those of the
"Northhampton Insurgents" do not. In 1799, John Fries led a
party of somewhat over lOOmen tofree ^0 farmersbeingheld
by United States marshals for conspiracy to violate tbe Land
Tax Act. Themobarrived at atavern wheretheprisoners were
being held, threatened the marshals, and secured their release.
The group then promptly disbanded. No one was killed or
wounded;no one wasfiredon,JohnFries was tried fortreason.^^
Charged insubstantially thesamelanguage used in the^^^^^^^^^
case,twojuriesreturned verdictsof g u i l t y . E v e n i n a country
where the specter of revolution wasstillarealfear,it isdifficult
toconceivehow Fries could havebeen convictedof levying war.
Measured against the facts, Fries' "insurrection" appears fragmentary,momentary,and of little significance.If this was treason
then almost any riot or disorder involving opposition to a law
of theUnited States canbe construed as treason. Certainly the
19^^ Oxford, Mississippi, riots constituted activity far more
serious than anything undertaken by Fries and his men. Weyl
suggeststhat the trial was purely political and that Fries was
avictimofaEederalistplot.^^In any event reasonprevailedand
Fries was eventually pardoned.
Broadened by the.^^^^^^ construction, treason by levying war
was dueforanevenwider interpretation.By 1^0^,theschemes of
ex-Vice President AaronBurrbegantocometolightandin 1^07
Burr himself was brought to trial for treason by levying war.
The alleged overt acts had occurred at a place called Blennerbasset^slslandinwestern Virginia. Yet boththe prosecutionand
defense agreed that Burr was nowhere near the island at the
time. Chief Justice Marshall, concluding that Burr's presence at
^-United Statesv. Mitchcll,.^^^^^^notc71,at 1281.
^^^WEyi^,^^.^^^,.^^^^^^ncte^^.at85
Case of Fries, 9Fed,Cas 826 (No 5126) (CCD Pa I7^^^;Caseof
Fries,9Fed Cas 924 (No 5127)(CCDPa 1800)
^^7^^^.
^^^WE^E,^^^^^^,^^^^^^note^^. at 107^09.
^^7^ at 109
^C0^324B

15

34678

TREASON
that place was unnecessary, quoted with approval from the
Bollman case:''*
It is not the intention of the court to say that no individual can be
guilty of [treason] who has not appeared in arms against his country.
On the contrary, if war be actually levied, that is, if a body of men
be actually assembled for the purpose of effecting by force a treasonable
object, all those who perform any part, however minute, or however
remote from the scene of action, and who are actually leagued in the
general conspiracy, are to be considered as traitors."

Burr was eventually acquitted. With his trial, the heyday of
treason by levying war passed. Stretched to cover Fries and
Burr the wide interpretation as to what constituted 'levying
war" began to contract. Even as Burr sat in a Richmond courtroom, the Circuit Court in Vermont was drawing a sharp distinction between resistance to the law for a private purpose and
resistance of a general character.*^ Thus the recovery by force of
private property seized by a revenue agent, though accomplished
by a force of about 60 men and accompanied by desultory fire
between the mob and militiamen was held to be of a private
character and not to constitute levying war.®^ The court was also
concerned about the de minimis aspects of this affair. "In what
can we discover the treasonable mind?" asked Judge Livingston.
"Can it be collected from the employment of ten or twelve
muskets?" ^ Mentioning the Fries case the court proceeded to
emasculate its holding.
Tbe vitality of the Mitchell case continued until the 1851 decision in United States v. Hamvay.^^ The facts of that case leave
it clear that Hanway aided one of several armed bands advocating
forceable resistance to the fugitive slave law. In the immediate
violence out of which the case arose a slaveowner was killed, his
son wounded, and police officers attacked and beaten. Charging
the jury, Justice Grier professed to see a change in the legal
definition of "levying war." The "better opinion there at present"
he charged, "seems to be that the term levying war should be
confined to insurrection and rebellions for the purpose of over••Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807).
United States v. Burr, 25 Fed. Cas. 55, 161 (No. 14693) (CCD. Va.
1807) .
See United States v. Hoxie, 26 Fed. Cas. 397 (No. 15407) (CCD. Vt.
1808) ,
Ibid.
Id. at 399-400.
"'See United States v. Hanway, 26 Fed. Cas. 105 (No. 15299) (C.C.E.D.
Pa. 1851).
AGO 5364B

57

16

34679

30 SOLITARY LAWREVIEW
throwing the ^Gjovemment by force and arms. Many of the
cases of constructive treason quoted [by the English writersl,
would perhaps now betreated merely as aggravatedfelonies."^^
With this encouragement the jtnw promptly acquitted the accused.
Outright rebellion thus continued to come within the area
defined by tbe term "levying war." The Civil War appeared to
sometobe tbe opportunityto utilizethis term toprosecute the
Conferates for treason. As amatter of record, however, only a
few indictments arose out of that war,and these producedlenient
results. Tbe sentences of RidgelyGreatbouse and his compatriots,
for example, convicted of levying war by attempting to outfit
aprivateer for Confederateservice were terminated upon their
taking theoathof allegianceto theUnited States,^^ Theindictments against such contrasting individuals as Charles Greiner,^^
amember of a Georgiaartillery company which participated in
theseizureofFortPulaski,andJeffersonDavis,^^ President ofthe
Confederate States, were never brought to trial.
Since that time, a number of incidents have occurred which
might have been considered a basis for charges of treason by
levying war The activity of the Klan during Reconstruction,
theHaymarketRiotsof 1886,andthemarcbof theBonus Army
in 1932 were allseriousenoughtorequiretbedispatchof troops
to maintain law and order. But the definition which limits treason
bylevying war to actualrebellion against the Government seems
tohaveprevailed. It issignificantthatsincethe^^^^^ case not
one attempt has been made to revive the offense.
B

^^^B1^^^^^^^^^^^V(^7^(^7^^^^^^^)^
(^71B^V(^^^^^^^y^^.^C^^^^^^

Unlike the offense of treason by levying war which passed
from the scene almost one-hundred years ago, the offense of
treason by adhering to the enemy bas achieved a considerably
longer and more usefiil existence. This phase of treason encompasses twoelements: adhering to the enemy and givingbim aid
and comfort With these elements the problem of intent is inexorably intertwined. A citizen may intellecttially, emotionally
^^7^. at 127
United Statesv. Greathouse, 26 Fed Cas 18 (No 15524) (CCND
Cal 1863)
^^SceUnited Statesv. Greiner, 26Fed Cas 36 (No 15262) (DCED
Pa 1861)
^^SeeCaseofDavis,^Fed Cas^^(No^^^Ia^ (CCD Va 18^7-187^).
ACO ^3^^^

t^

34680

TREASON
and spiritually sympathize with the enemy. He may harbor disloyal thoughts,But solonga^he failstoengagein some sort of
conduct designs to give the enemy aid and comfort, thecrime
of treason isnotcomplete,^* Conversely a citizen may doan act
which givesthe enemy aid andcomfort,but if there is no adherence totbeenemy'scause there isnotreason,*^By doing the act
hemay appear outwardlyatraitor but he is not legallyatraitor,^*
Nor doesit appear necessary thatthe enemy wants orneedsthe
proffered assistance. The merefact that i t i s offeredor rendered
with the requisite intent will make the crime complete.
As inother aspects of thelaw,we must go back toEngland for
astarting point. Interwoventhroughout tbeEnglisb cases isthe
conceptionthat adhering totheenemy necessarily compassedthe
death of the king. For that reason, indictments for aiding the
enemy,inand of itself,are scarce. But at least asearly as 1691
it was recognized as a separate otfense,^^ At the trial of Sir
Richard Grabme for attempting to smuggle out of England a
number of documents concerning thestatus of military defenses,
Lord Chief JusticeHolt,after commentingontheindictment for
compassing the King'sdeath,observed:"There is another treason
in the indictment mentioned and that is for adhering to, and
abetting tbe king's enemies, there being open war declared between the king and queenand the French king,^^
Defining the rationale of the offensethe Solicitor General of
England argued in 1781:
Howcanany state exist,how contendwith anenemy, if it is to suffer
within its ownbosommen employedto give intelligence of all its operations tothosewithwhomitis at war7 Gne man,so employed, may often
l^irri^5 ^o r^uch more mischief to tbe country of whose Operations he
gives intelligence than an army of 50,000 men."

The English courts also established the proposition that the
offense was complete oncethe overt act occurred and itwas no
defense that the enemy was not actually aided.The conviction
of Viscount Preston was sustained notwithstanding that his attempt to smuggle defenseplans out of England was terminated
^^Craraerv UnitedStates, 325 U.S. 1 (1944);United States v.Werner,
247 Fed 708 (ED Pa,l^t8),o^'^251U.S.466 (1919)
See ^awakitavUnited States,343 US 717( 1952)
"United States v Werner, 247 Fed 708 (ED Pa 1^18^, ^^^^ 251
U S 466 (1919)
^^SeeTrialof SirPichardGrahme, 12How St.Tr 645 (1691)
^-7^ at 730,
^ ^ T r i a l o f F H D e L a Motte, 21 How Sl:.Tr 687,798 (1781)
^^SeeTrialof SirPichardGrahmc,12How St.Tr 645 (1691)
AGO ^3^^^

18

34681

30 MILITARY LAWREVIEW
by bis apprehension.Nor did it avail those accused of treason
by attempting to mail secrets abroad in time of war to contend
that the letters were intercepted before they left the coimtry,^^
The celebrated trial of CaptainThomas Vaughan resultedinthe
conviction for aiding the enemy ofaseamanwhowent^^cruising^^
underaFrenchcommissionwhere there wasno evidence thathe
made any hostile attempt upon an Englisbvess^l.^^
Allof these cases have beencitedbyAmericancourts.Perhaps
theleadingcase intheUnited States involves the efforts of Max
Haupt to acquire a job for his son, a Nazi secret agent, at a
factory engaged in producing lenses for the top-secret Norden
bombsight. The efforts consisted solely of visiting the homes of
aplant superintendent and a shop foreman and inquiring into
the means of securing such employment. There was no evidence
that a job application was ever submitted or that any further
step wastaken inthatdirection,^^ Affirming the conviction, Mr
Justice Jackson commented succinctly:
His acts aided an enemy of the United States toward accomplishing his
mission of sabotage. The mission was frustrated but the defendant did
his best to make it succeed. [Thatj His overt acts were proved in com^
pliance with the hard test of the Constitution, arc hardly denied and
the proof leaves no reasonable doubt of the guilt.

Whilenotnecessary totheresult,thisprinciple was expressly
adhered to in the case of radiopropagandist,Douglas Chandler.^^^
The evidence established that Chandlerhadpreparedanumber of
broadcasts for theuse of the German Radio Broadcasting Company.Chandler contended there was no evidence anyofthe recordings were ever used,orif used,that auyonciutbcUnitcd States
ever heard them. Dismissing this argument the court concluded:
It does not even matter whether the particular recordings , , , were
actually broadcast. Chandlcr^s service was complete with the making of
the recordings, which became available to the enemy to use as it saw
fit. , . .His act of making the recording for the enemy is like giving
to anencm^agent apaper containing military information, which would
^^7^^^
^^Trialof DavidTyrie,21How St. Tr 815 (1782);Trialof Florence
Hcnsey,19HowSt.Tr 1342 (1758),
^^Trialof CaptainThomas Vaughan, 13 How S^.^. 485 (1696),
^^Fo^ a detailed discussion of the evidence in this regard, see United
Statesv Haupt, 152F.^d771 (7thCir 1945)^^^^o^, 330 U,S,631 (1947),
^^Hauptv United States,330 US 634 644 (1947),
^^^^^^^
Chandler v United States, 171 F.^d 921 (Ist Cir,),
336 US 918 (1948).
AC0 23^^a

^(^

1^

34682

TREASON
be a completed act of aid and comfort, though the enemy agent later
lostthepaper and thus nevcrputthe information to any effective ^.^^^B^^

Who isthe "enemy" forthepurpose of receiving this aid and
adherence7IntheEnglishcases,oriented as usualwith monarchical concepts, it was the foreign sovereign himself The early
American cases immediately following the Revolution departed
from this concept. One early Pennsylvania case charged the
defendant with intending ". . . t o raise again and restore the
Government and tyranny of theKing of Great Britain. .
However, reference to theking, as such,played an increasingly
lesser role and prosecutions were based merely on aid to his
soldiers,^^^
An opportunity to fally explore the definition of an "enemy"
didnot ariseuntilthe Civil War. Theproblem quickly arose as
to whether the Confederates were "enemies" for the purpose
of the treason law. The problemwas resolved inthe negative by
Mr. JusticeFieldintheG^^^^^^^^^cas^.^^^Hechargedthejury:
Theterra "enemies" as used inthe second clause, [of the Constitutional
provisions according to its settled meaning, atthe time the constitution
was adopted, applies onlyto the subjects of a forcignpower in a state
of open hostility with us. It does not embrace rebels in insurrection
against their own government. An eneray is always the subject of a
forcignpower who owes no allegiance to our government or eountry.^^^

The practical result was that all future treason prosecutions
against tbe Confederates bad to be charged ^'levying war."^^^
It is interesting to note, and practical politics appears to have
dictated, that the definition of an "enemy" f o r t b e purpose of
treason andthat forthepurposeof confiscating theproperty of
an "enemy" received diametrically opposite treatment, lu the
latter situation the courts had no problem holding Confederate
soldiers andcitizenstobe enemies andtheir property subjectto
forfeit.^^^
^^^7^ at941.
^^^Respublicav C a r l i s l e , i U . S . ( I D a l l ) 35 (1778).
^^.^ PespublicavMalin,lU8 (1Dall) 33 (1778)^^ccor^. United
Statesv.Hodges,26Fed Cas 332 (No 15374) (CCD Md 1815).
'"United Statesv Greathousc,26Fed, Cas 18 (No 15254) (CCND.
CaL 1863).
^^^7^at22.
^^^^^^^ c^. Pri^e Cases,67U.S.(2Black) 635 (1862) which seems to
accordthe Confederacy bdligcrcncy status although f o r a different purpose
(^.^., violating thcblockade).
^^^TheVenice,69U.S.(2Wall) 258 ( 1 8 6 4 ) ^ ^ . Alexander's Cotton,
69U.S,(2Wall) 404 (1864),
^C0^3^48

20

34683

^0 MILITARY LAWREVIEW
Theoffense of treason by aiding the enemy can onlybe committed during time of w^r,^^^ But it does not necessarily follow
tbat the war must be attired with allthe customary trimmings,
such asa formal declaration. It is trueas amatter of factthat
all previous treason prosecutions inthis area have arisen outof
incidents which occurred during time of a formally declared
confiict. Eor this reason, it is perhaps unfortunate that no treason
prosecution followed the Korean confiict by whichthe standards
of that'^war'^ couldbe tested. Some support for theproposition
that less than a "formal" war will sufficemay be found in an
Attorney General's opinion in 1798,during themaritime dispute
with France,that the treasonlaw applied toaFrenchcitizenwho
was intheUnited StatesbuyingsuppliesforErenchbases intbe
W^cst Indies.^^'^ Again, in 1871, the Attorney General expressed
the opinion that persons apprehended running guns and ammunition to hostile Indians were subjectto militarycourt-martial for
"relieving the enemvB'^^^
Todayai^r^ctical question may be raisedconcerning the status
of the VietCoiig. Arethey an "enemy" as thatword isused in
the treasonstatute7This question hasrecentlyreceivedcollateral
consideration with thedecisionto issue certain awards for valor
in combat in South Vietnam. Fearing that the term "enemy"
might be legally in^pplicable.^^^ Congress amended the statutes
governingthe award ofthe Medal ofHonor, Distinguished Service
Crass and Silver Star toinclude situations where Americanservicemenwereinconfiict witb an opposing foreignforce OS serving
with a friendly foreign force engaged in an armed conHict,^^^
Yet whenit awarded tbe Medal of Honor to Captain RogerDonl^m,the Departmentof the Army had no hesitancy in referring to
theVietCongasan"enemy"on fire occasions.
W^bile the cited authorities do not fully resolve tbe question,
they may be taken to indicate that the civil offense of treason
and its military counterpart of aiding the enemy could well be
committed in anescalated"coldwar"situation.
'"United States v. Fricke, 259 Fed 673 (S,D,N,V,19i9),
^^^^Sec1^^2.ATT^^G^N,49(I7^8^.
^^^^ Sec 14Grs,ATT'YC^^N. 470 (1871).
^^^1^^^ U.S.C. CoNC.^Ai^.N^W2 776.
S e c l O U S C ^ ^ 3741, 3742, 3746 (Supp,V, 1964),
^^^See^en.OrdcrsNo 41,Hq Dept of Array (17Dec 1964),
^002324^

21

34684

TREASON
IV THE JURISDICTIONAL ASPECTSOETREASON
A (^1^^^^^^^7^^^^^^A^^^^^^^7^^A^A^^7^^^A^^^^
No one would suggest that the prosecution of anative or naturalized American citizen for treason committed within the
bordersof theUnited States would raiseajurisdictionalproblem.
But treason committed overseas is a different matter. The law
punishes as traitors those who adhere to theenemies of the United
States within thecountryorelsewhere,^^* Where thelaw is applied
to American citizens, it is tbe "or elsewhere" that raises tbe
problem. It isaproblemof recent origin.Eor once we are unable
to glean from the State Trials any case dealing with overseas
treason,^^^ andhistory bas shownittobebasically an American
problem. True, England produced Casement,^^^ but the evidence
in the Joyce case strangly points to the fact that even "Lord
Haw Haw" was an American national,^^^
Attheoutset,itmay be well to consider wherethe concept of
overseas treasonoriginates.Normally the answer wouldbe found
in the Constitution. It has been noted that treason is the only
crime defined in that document. But a re-reading of Article 3,
section 3,fails to disclosethe words "orelsewhere." The convention that framed the Constitutioncertainly consideredthem. Its
members were familiar with the statute of Edward III.^^^ Yet the
words do not appear in tbe draft submittedbytheCommittee of
D e t a i l , a n d a proposed substitute which would have included
them was defeated by an 8to ^ vote,^^^ The words first appear
in the statute by wbichCongress implemented the authority given
i t t o declare the punishment fortreason.^^^
Itfollows tbat oncobjectiontotheinclosureof thewords^^or
elsewhere" in tbis statute is tbat thepowerof Congress is limited
^ ^ ^ I 8 U S C ^ 2381 (1958)
Unless youconsiderthe IB^^^^T^^^ case involving treasonon the high
seas. Case of Captain Thomas Vaughan, 13 How. S^. Tr. 485 (1696).
^^^An Irish revolutionary who attempted to carve out an independent
Ireland with German help during World War 1. Gn his return from Germany he was captured, tried for treason, and executed. Sec Pex. v. Casement, 115LTR ( N S ) 267 (1917)
^^^l^e^v Joyce, 173LTP (N.S.)377 ( 1 ^ ^ 5 ) , ^ ^ ' ^ . ^ ^ ^ ^ ^ ^ Joycev.
Director of Public Prosecutions, 1 7 4 L T P ( N S ) 206 (1946) Sec also
W E S T T H E N ^ W M E A N I N O OETREASON (1964).
^^^^ F.^RI^..^NI^, RECORr^S OE THE pEOERAI. CONVENTION OE 1787,al: ^42

(1937)
^^^7^ at 182
^^^7^ at ^47-48,
^^^ActofApril 30,1790,lStat 112
A00^3^^^

22

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30 MILITARY LAW REVIEW
to providing the punishment for treason and does not extend to
declaring where the offense may be committed. A second argument is that the words "or elsewhere" qualify only the phrase
"giving aid and comfort" and do not apply to the phrase "adheres
to." I f this were true and both the adherence and the aid and
comfort to tbe enemy took place outside the United States the
statute would not be violated.
Both of these contentions were unsuccessfully asserted in the
Chandler case.^- With regard to the former the court replied
that had the framers intended to restrict the crime to the United
States, they could easily have done so.^^^ Furthermore, the restrictive words "within their territories" had been deliberately rejected
by the Committee of the W^hole.^^* The latter contention too was
rejected, the court concluding that sucb theory ". . . violates the
plain language of the statute."
If this proposition can be considered as firmly settled, what
recourse is open to the American overseas who chooses to support
his country's enemy? The Nationality Act of 1940 opened the
door: voluntary expatriation,pj-ior to that statute wartime
expatriation was prohibited,^" but this restriction was eliminated
in the new legislation. Among the recognized means by which
nationality could be lost were (a) obtaining naturalization in a
foreign state, (b) taking the oath or making a formal declaration
of allegiance to a foreign state, or (c) making a formal renunciation of United States citizenship before a diplomatic or consular
official of the United States in a foreign state.^-^
How many Americans took advantage of the Nationality Act to
transfer tbeir allegiance to a wartime enemy and thus avoided
post-ward prosecution for treason is unknown. A Federal Court
has used the phrase "many persons."
One writer has gone YO
United States v. Chandler, 72 F.Supp. 230 (D. Mass. 1947), a f d , 171
F,2d 921 (1st Cir. 1948), cert, denied, 336 U.S. 918 (1949).
"'171 F.2d at 929.
"*2 FARRAND, op. cit. supra note 118, at 347-48,
United States v. Chandler, 72 F.Supp. 230, 233 (D. Mass. 1947), aff'd,
171 F,2d 921 (1st Cir. 1948), cert, denied, 336 U.S,918 (1949); accord, Gillars v. United States, 182 F.2d 962 (D.C. Cir 1950), Best v. United States,
184F.2d 131 (1st Cir.), cert, denied, 340 U.S. 939 (1950).
Nationality Act of 1940, § 401, 54 Stat. 1137.
Act of March 2, 1907, 34 Stat. 1228.
Nationality Act of 1940, § 401, 54 Stat. 1137.
See D'Aquino v. United States, 192 F,2d 338, 348 (9th Cir.), cert.
343 U.S. 935 (1951).
64

AGO 5364B

23

34686

TREASON
far as to assert that "several thousand" changed allegiance to
Japan a l o n e . A t least three were unsuccessful.
On December 8, 1941, approximately simultaneously with the
declaration of war, Mildred Gillars, better known as "Axis Sally"
executed a paper which contained the words " I swear my allegiance to Germany." Tbe paper was then given to her superior.
On the basis of this document, which was never produced, she
urged the jury be instructed tbat if they found this to be a sufficient renunciation of citizenship, they must acquit. The court
refused to give the instruction and the conviction was affirmed
on appeal,^^^ A loose interpretation of the statute might have
sustained appellant's contention, but the court chose to require
strict compliance. The court noted there was no evidence that the
paper had been sworn to before anyone or that there was any
connection between it and any procedure having to do with obtaining Reich citizenship.Nor did it find any substance to appellants' contention that her citizenship bad ceased when her United
States passport, submitted for renewal in 1941, had been retained
by the consular agent. A passport is some evidence of citizenship,
it is indeed useful in travel, but, concluded the court, its absence
does not deprive an American of his citizenship.^^^
A second argument advanced in favor of successful expatriation
under the Nationality Act of 1940 was advanced by Iva D'Aquino,
the "Tokyo Rose" of the Pacific theater. She noted that under the
expatriation provisions of the act a person was permitted to shed
his allegiance to the United States and by so doing could engage
in adherence, aid and comfort to the enemy with impunity.^^* She
argued that to try ber for treason for acts which the law permitted
others tp do was unreasonable and arbitrary and constituted a
denial of due process under the Fifth Amendment.^*^ But the
court found no sound basis for such contention and concluded it
The Constituwas no more than a mere ". . . play on words."
tional argument got no further than the effort to give the statute
a broad construction.
See Blakcmore, TJecoverj/ of Japanese Nationality as Cause for Ex'patriation in American Law, 43 AM. J. INT'L L. 441, 451 (1949).
Gillars V. United States, 182 F.2d 962 (D.CCir. 1950).
" ' M at 983.
" ' M at 981.
See D'Aqulno v. United States, 192 F,2d 338, 348 (9th Cir,), cert.
(^gMW, 343 U.S. 935 (1951).
See lAzW.
See at 349.
AGO 5364B

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30 MILITARY LAWREVIEW
Onelast problem areaintbefieldof overseas treasonconcerns
the status of the dual citizen. Such an individual was Toyoma
I^awakita.i^^ Born in California of Japanese parents who were
citizens of Japan,be was thus acitizenof the United Statesby
birth,and,byJapaneselaw,acitizen of Japan.In 1939,he visited
Japanonan Americanpassporttoattendcollege. When thewar
broke out he chose to stay in Japan and finish his education.
Duringthis period hewas registered by the Japanese police as
an alien. Subsequently, he attempted to renouncehis American
citizenship.Todo tbis he had his name entered onafamily census
register. He then obtained employment with a metal company
where he was assigned as translator in connection with the use of
American prisoners of war as laborers.Not contentwithapassive
role he continually humiliated the captives and frequently subjected tbem to brutal treatment. In 1946, be reapplied for his
Americanpassport and returned totheUnited States. Achance
recognitionbyaformer prisoner caused his arrestand subsequent
trial for treason. ( ^ appeal Kawakita stressed his Japanese
nationality. In addition to the entry ofhis name in the family
register, he argued for the broader propositionthat an individual
possessingdual nationality whoresidesin one of the countries of
whichheisanational cannot be guilty of treason against theother
country.i^^ Tbe assertion appears tobe based on the "right" of
adual national tomake an election,in time of war, towhich of
his sovereigns he will adhere. The court promptly rejected his
contention. Concerning the contention thatl^awakita,by his acts,
hadrenounced his Americancitizenshipthe court answered:
That conclusion is hostile to the concept of citizenship as we know it,
and it must be rejected. Gne who wants that freedom can get it by
renouncing bis American citizenship. He cannot turn it into a :^airweathcr citizenship, retaining it for possible contingent benefits but
meanwhile playing the part of thetraitor An Americanciti^cn owes
allegianceto the United Stateswhercver hc may reside.'"

As regards the family register,the court dismissedthis contentionon the theory that the registration wasmerely as assertion
of some of the rights Kawakita already possessedby reason of
his dual nationality.
Tbe.^^w^^^^^^ holding is far from decisive. It is aminority
^^^Sec^awakitav United States, 96F.Supp. 824 (S,D,Cal 19^0),^^^o^,
190F.2d 50^ (9tb Cir.),o.^^^,343US 717(1951)
^^^Seel^awakitav United States,343 US 717,732 (1951)
^^^7^ at 735.
AG0^3^4a

22

34688

TREASON
opinion. Two justices took no part in the decision and three
dissented,^^^ The dissent is based on the conclusion thatby his acts
Kawakita had expatriated himself as well as be could bav^.^^^
Blakcmore appears to make evenamore telling point.Hediscusses
the unusual Japaneselaw of "recovery" of nationality and concludes that any person who so "recovers" under Japanese law
has effectively expatriated himself under the Nationality Act of
1^40.1^^ Since "recovery" under Japanese lawmay be accomplished
through inclusion in the Family Register Record, Kawakita can
thusbesaidtohaveexpatriated himself prior tothe time ofhis
treasonous acts.
It may be concluded, then, that an American may avoid bis
natural loyalty tobiscountry through anactof voluntary expatriation. But the merefact that such person purportstoverbally
or informally renounce his citizenship orpurports topledge bis
allegiancetoanyenemy state,withoutcomplyingwithit^ formal
requirements, will notexcuse thecrime of treason. Before allowinga citizento adhereto ourenemies the courts will demand a
strict compliance withthe statutes dealing withexpatriationeven
f o r a p e r s o n w i t h a d u a l nationality status The "highest of all
crimes"cannotbelightlyevaded
B

7^^^^^(^A^^^^^^^^^A^7^^^^^A^^

If treason by an American citizen must be either black or white,
then treason by a resident alien can onlybe described as gray.
The allegiance owedby a citizen is fixed and certain; that owed
by an alienimperfect and temporary. I f the nationality of the
alien is that of an enemy belligerent the problem is increased.
The alienmay feel nolovefor the country in which he resides;
he is more likely than its native son to wish itill,but ifhecommits
one overt act designed to accomplish its downfall, the noose
loomsjustashigh.
The underlying rationale behind punishing the alien fortreason
against thebost country isnot new. Itwas firmly established in
England. Itwasclearlyexpressed inl.781 by Mr. JusticeButler,
inpassing the"usual" sentence upononeDeLa Motte,aFrenchman living in England who had attempted to send military secrets
toaidhishomeland, asfollows:
During your residence in this country, as well a^ duringthe course of
^^^Scc:i^at745,
^^^Sce:id.at 746.
^^^SceBlakemorc,,^^^^^^notc 130,at44^,
AGe^324a

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30 MILITARY LAWREVIEW
your trial, you have received the protection ofthe laws of the land. As
^u^h ^ou owcdaduty to thosclaws,andanallegiancc to theking whose
laws they arc; but you have thought it tit to abuse that protection you
have received."'

The adoption of this principle in American law appears clear
althoughtheactualtrialofanalienfortreason is unknown inthis
country. Ithas already been observed thatthe Attorney General
in an early opinion,concluded thataErench citizen in this country
was subject to trialfortreason,^^^
Further support for the general principle may be found in
7^^^^^^^^^7^,i^^ Tbe question concerned whether ornot an English
citizen couldbe the "subject" of the King of Spain, for treaty
purposes, where his ship had been seized by an American privateer during the War of 181^. Holding that he could, Justice
Story,referring tothelocation of thatcitizen'sactualresidence,
concluded:
. . .aperson domiciled in acountry, and enjoying the protection of its
sovereign, is deemed a subject of that country. He owes allegiance to
the country, while he resides in it; temporarily indeed, , . .but solixed
that, as to all other nations, he follows the character of that country,
in war as well as in peace.""

With the outbreakof the Civil W^ar zealous judges,foreseeinga
rash of impending treason trials, charged their grand juries in
^^^Trial of DeLaMottc,21HowSt:,Tr 687,814-815 (1781)
See lGi^2. Arr^, GEN 49 (1798) Itcanbearguedthathisholding
is inconsistent with the decision in United States v. Villato, 2 U.S. (D
Dail.) 370 (1797), a trial for treason of an alleged American sailor who
joined the crew of a French vessel which subsequently captured an American ship. At the trial the accused successfully contended that he was not
an American citizen but a Spaniard. Arguing on the merits the U.S.
Attorney conceded "that if the prisoner isnot anationali^cd citizen of the
United States, he must be discharged," United States v, Villato, .^^^^^^ at
371. In the subsequent holding both judges concurred that since the accused was found not to be a citizen of the United States hc must "consequently be released from the charge of high treason." United States v.
Villato, .^^^^^^ at 373. Given broad interpretation these words can be read
to mean that no foreigner can be tried for treason. But as the acts were
committed onthe high seas it ismorc reasonable to conclude that thcplace
ofthe acts must have been considcrcdby counsd and the court, and not as
suggesting that a resident alien could not be found guilty. It has never
been suggested that a foreigner who aids our enemy overseas can he
brought himself within our treason law. It is significant that no subsequent effort has been made to give this language a wider construction.
^^^15US (2Wheat) 227 (1817)
^^^7^. at 246. It is unfortunate that Justice Story used the words "domiciled" and "resides" interchangeably since the former implies an intent ^o
reraain.
AG0^3^4a

27

34690

TREASON
detail witb the law of tbe ol^ense,^^^ Only one of these specifically
includedinstructionsconcerningresidentaliensbut it specifically
adhered to the English rule, charging that any suchso)oum^r,
enjoying the protection of the United States, owes alocal allegiance, andmay beguilty of treasonby cooperating with rebels
or foreign enemies,
Only one case arising out ofthat confiict seems to have considered the problemof treasonby resident aliens,^^^ but that case
is significant in its adherence to the English rtile. The suit involves
anefforttorecover damagesforgoods owned by British citizens
which were seized in AlabamabyUnited States forces.The court
discusses theloyaltyowedbyaresident alien in tbislanguage:
The alien, whilst domiciled in the country, owes a local and temporary
allegiance, whichcontinucsduring the periodof hisrcsidcncc. Thisobligationof temporary allegianceby analienresident inafriendly country
is everywhere recognised by publicists and statesmen. , . . [ I j i : is well
known that,by thcpublic law, an alien or astrangcr bom, for so long
a time as hc continues within the dominions of a foreign government,
owesobcdicncetothelawsof that government,and maybcpunishcdfor
treason or othcrcrimcs as a native born subject might be. , ..^^^

Thus, another of the English rules has been assimilated into
tbe American law of treason. As witb many others it can at times
beconsidered harsh. Certainly the G^^^^.^^^case canbe read for
the propositionthat Carlisle could have beenconvictedof treason
asa resident alien. Therationale behind suchprosecution would
havebeentbat thealien was enjoying the protection ofthe laws
of theUnited ^tates.Yet Carlisle was deepin Alabama wherethe
laws of the United States protected him about as well as they could
have in Africa.Consider also thecase of thealien whose homeland
hasbecomethe"enemy." Doeshis duty tohis country extendto
workingfor its successin the state whereheresides?If he does
sohesubjectshimself toatreasonprosecutionbythat state. But
tbe rule is harsh where tested by the needs of the individual.
Tested by the needs of tbe state it becomes necessary in the
interestof national self-protection.
Sec, ^.^..Chargc to Grand Jury, ^0 Fed Cas 1032(No 12270) (CC
SD N,y^ 1251)^ Charge to Grand Jury, 50Fcd, Cas 105^ (No 12272)
(CCSD Ghiol^^l),
'"Charge to Grand Jury, ^0 Fed Cas 10^9 (No 12273) (D Mass
12^1)-d. Chargcto Grand Jury, 30 Fed Cas 1047 (Nc 1827^) (CC
ED Pa 1251).
See Carlisle v.United States, 23US ^l^Wall) 147 (1272).
^^^.i^^. at 154-55. Note again the words "domiciled" and "residence" are
uscdintcrchangcably.
AG0^3^4a

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30 MILITARY LAWREVIEW
V AFFIRMATIVE DEFENSES
A^^(7^A^^^^^
Will anything negate the crime of treason?Witb a survey of
tbeEnglisb cases asaguideitis tempting to answer inthe negative. For hundreds of years head after head rolled from the
Tyburn blockaftertrialswbichwerelittlemorethan formality,
andunder circumstances where an acquittal could be dangerous
for the jury.i^i In sucb a setting any affirmative defense was
doubly dangerous since the very nature of such defenseadmits
the acts complained of but seeks to excuse or justify them by
attacking some otherelement of theoffense. I t i s n o t surprising,
therefore, that allbut a scattered few chosetoplead not guilty
and,with the lawagainst them, endeavor toargue the facts.
Of those few who have attempted to assert affirmative defenses
somehavebottomed their relianceongrounds of lackof citizenship.^^^ One notable exception, andastudy in the futilityof it all,
wasthecelebrated case of SirWalterRalcigh.^^^ Tried in 1603,
Raleigh was convicted of treason by plotting rebellion. His sentence todeathwassuspendedandhelanguishedinprison f o r l 4
years. Subsequently hewas released andcommissionedto leada
military expedition to Guiana which involved fighting with the
Spanish.By thetime he returned to England the political situation
had shifted and England was currying favor with Spain. The
Spanish minister demanded his execution. Not knowing any offense to try him for,the authorities decided merely tovacatethe
old suspended death sentence and execute Raleigb for treason.
Heurged in vain that the Commission fromthe king had amounted
toapardonB^^ AformerLordChancellorandmostofthelawyers
in England agreed with bim.^^^ Nevertheless the Lord Chief
Justice ruledotberwise.^^^ Thepardonmust be specific, he held,
itcouldnotbe implied. Raleigh went totheblock. Constructive
treasonwasaone edged sword;itcutonly in favorof theprosecution.
^^^Following the acquittal of Sir Nicholas Throckmorton, 1 How. St.
Tr 869 (15^4), an cnragcdjudgcordcredtbc jury imprisonedand subsequently tinedthcm heavily.
^^^^ Sec notes 114-49 .^^^^^^.and text accompanying.
^^^^Trialof Sir Walter P^alcigh, 2How St. Tr I (1603)
^^^7^at34.
^^^7^^^
^^^To further point up the hopelessness of the situation it should be
noted that the Lord Chief Justice was none otherthan Sir Edward Coke,
whohadprosccutcd Palcighatthcoriginaltrial.
AG0^324a

2^

34692

TREASON
Other efforts at raisingaffirmative defenses havefaced equally
bleak results. Drunkenness has been raised, but evidence that the
defendant was in a state of ambulatory stupefaction has been
considered insufficient to establishadefensetoacharge of treason
by resisting law olUcers.^^^ Nor may the motive of the accused,
that hegenuinely believes what he doesis in thebest interests
of bis country, be raised as bearing on his intent to aid the
enemy.^^^ While insanity has been recognized as a defense to
treason, only onecase hasbeen found where itwas successfully
argued.i^^ One affirmative defense has been raised consistently
enough tobe treatedseparately.That defense is duress,the deprivationof anindividual'sfreewilltoact.
B^^^^^^
The defense of duress was first fully considered following the
rebellion of 1.745 that came to grief at the Battle of Culloden.
Alexander MacGrowther had participatedin that rebellion. At his
trial, witnesses testified that he had been seen on several occasions
with the rebel army and wearing its uniform.^^^ MacGrowther
asserted,however,thathehadbeenamost unwilling participant.
He had joinedthe rebel army,this he conceded.But,he contended,
behad done so only after theDuke of Perth, in whoseregiment
hehadserved,badthreatenedtoburnthehousesanddestroytbe
crops of any ofhis tenants who desisted. Even with this, MacGrowther argued,behad hesitated,until he was told hewould be
would beforceably bound andtaken along anyway.^^^LordChief
Justice Lee was not persuaded. He instructed thejury: "IT^be
fear ofhaving housesburnt, or goods spoiled, . . .is no excuse
for joining and marching with rebels The only force that doth
excuse,isaforceuponthe person, andprcsent fear of death; and
tbisforce and fear must continue allthetime theparty remains
withthe rebels."^^^MacGrowther was foundguiltybuthis argument was not entirelyunsuccessfulfor be was later reprieved.
While ashortened version of tbe^^^G^^^^^^^rule was cited
as^^7^^^inthe.^c^^^^^case,i^ itwas first given seriousconsid^^^SecTrialof GcorgcPurchasc, 15 How St, Tr 651 (1710)
^^^Bestv UnitedStates, 184F,^d 131(1stCir), cert denied, 340 U.S.
939(19^0),
SccTrial of James Hadticld,27 How St.Tr 1281 (1800)
^^^Trialof AlcxandcrMacGrowther, 18How S^.Tr 391,392 (1746)
^^^Id at393
^^^1dat394
^^^l^espublicavMcCarty,2US (2 Dail) 86(1781)
AI^0^3^4B

30

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30 MILITARY LAWREVIEW
eration in this country in ^^^^^^^^^^^^.^ v. V^^^^^,^^^ one of the
cases growing out of the Whiskey Rebellion. Vigol's contention
seems tobavebeen morethat hewas caught u p i n t h e spirit of
things than that he was actually forced toparticipated. His defensefound no favor witb Justice Patterson who instructed the
jury in words similar to those employed by LordChief Justice Lee
some50yearsearlier.Commentingonthereasonbebind the rule
thejudge stated:
I f indeed suchcircumstanccs [apprehension of somethinglcssthan inunediatcfcarof deathj could avaiLitwouldbc inthcpowcr of cvcrycrafty
leader of tumults and rebellion, to indemnify his followers, by uttering
previous menaces; an avenue would be forever open for the escape of
unsuccessful guilt; and the whole fabric of society must inevitably, be
laid prostrate.'"

A vigorous assault on the ^^^(^^i^^^^^^^^ rule was leveled in
1815by William Pinkney, attorney for John Hodges who was
triedfor treason for returningfour British stragglers whohad
been taken prisoner duringthe British withdrawal from Washington in the war of 1 8 1 2 . I t appeared tbat the British had
threatened toburnthetownof UpperMarlboro andhold women
and children hostages until the men were returned. Pinkney
stressed the military severity of the situation in an eloquent
speech. He argued:
^T^he enemy were in complete power in the district. , . . They were
unaw^d by the thing which we called an army, for it had fled in every
direction. They were omnipotent. , , , They menaced pillage and confligration; and after they had wantonly destroyed cditices which all
civilised warfarehad hitherto respected, was ittobcbclicvcdthatthcy
would spare a petty village, w^hich had renewed hostilities, before the
sealof its capitulation was dry7Thcrc was menace; power to execute;
probability, r^^y, certainty, tbat it ^vouldbe ex^^ut^d. Ho^, tb^n, ^anyou
Iind a wicked and traitorous motive in the breast of my clients

Given weakinstructionsbyanuncertaincourt thejury agreed
with Pinkney, and "without hesitating a moment," returned a
findingof "not guilty."^^^
The ^^^^^.^ case appears to represent a departure from the
.^^^G^^w^^^^rule. I f so, it wasonly temporary. TheCivil War
brought aprompt re-recognition of therule,^^^ which has been
^^^2US,(2Dall) 346 (1795),
^^^7^ at 347,
United States v.Hodgcs, 26 FcdCas 332 (No 15374) (CCD Md.
1815),
^^^^^ at 335.
^^^^^ at 336.
^^^SccUnitcd Statesv Greiner, 26 Fed Cas 36,39 (No 15262) (^,D.
Pa 1861),
ACe23^^^
31

34694

TREASON
reassertedtothis day. If any relaxation of the rulecanbe found
inthe (^^^^r^case,^^^ i t i s only totheextent that the coercionor
compulsion hasbeenextendedfromthreatof immediate deathto
include threat of immediate serious bodily injury. This can hardly
beconsideredtheopeningof adoor.
Only one more case need detainus.In the trialof "Tokyo Rose"
thedefenseconceded that therule announced inG^^^^^^was correct whereapplied within the United States, but argued that it
was an unsatisfactory rule when the accused was in an enemy
country, for in such situations he was unable to get protection
fromthe United States and the compulsion was on the part of
theenemygovernmentitself.i^iRecognizingtbat thismight hold
trueforan individual conscripted into tbe enemy army,the court
responded:
Wc know of no rule that wouldpcrmit one who isundcr the protection
of an enemy to claimimmunityfromprosccution fortrcasonmcrdyby
setting a claimof mental fear of possibly future action on the part of
the enemy.'"

Thus it has been seen that while the legal rule on duress as
applied totreasonseemsstrictonitsface,itbas notbeenharsh
in application. Where the threat has proved real enough the
courtshave not been harshontheindividual affected even though
the threat hasbeen less than that required to excusehim by law.
TbeUnited States citizen, asdoesits soldier, oweshiscountrya
determinationtoresist by allmeans within his power, andonly
whenhehasbeenbrought tothelastditchof resistance maybe
save hislife at the temporary expense of thatduty.
1^7 7^^^^^77^^^^^B^^1^(^^7^^.^B^.^(^A^
TheTrialCounseladdressedthecourt: " I f any member of the
court orthe law officer is awareof any facts, which hebelievcs
may be a ground for challenge by either side against him, he
should now state such facts." A Lieutenant turned to the Law
01ficer:"Sir, Ichallengemyself onthegroundsthatlam hostile
to tbe accused and that prior to tbe convening of tbis courtlhave
formulated tbe opinion and expressed the opinion that the accused
isatraitor.^^^^^
^^^Gillarsv,UnitcdStatcs,182F.2d 962,976 ( D C C i r 1950)
^^^D'Aquinov,Unitcd States, 192F,2d 338 (9th C i r ) , cer^. defied, 343
U,S, 935(1951)
^^^^d.at^^9.
Statement of Lt Schowalter, disqualifying himself as a member of
the court United States v, Batchelor, 7 U S C M A 354, 362, 22 C,^,^,
144,152(1956)
AGO^^^^a

32

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30 MILITARY LAW REVIEW
But "treason «s such is not an offense properly cognizable by
a court-martial." These are the words of no less of an authority
than Colonel Winthrop.^"^ Yet almost immediately the effect of
this conclusion becomes blurred, It is for an excellent reason that
Winthrop italicizes the words "as such." All will readily admit
that the word "treason" has never appeared in the articles of war
which, since 1776, bave governed the armies of the United States.
Yet Winthrop feels compelled to explain that the articles concerning relieving and communicating with the enemy are "treasonable
in tbeir nature" and he quotes with approval such definitions of
the offenses as "overt acts of treason" and "closely allied to
treason." '"^ The Colonel concludes: "Whenever, therefore, an
overt act of the class specified in these Articles gives substantial
aid and comfort to the enemy, and thus evidences, so far forth,
an adherence to his cause, it can scarcely be regarded as less than
an act of treason." ^'^
Tbe two articles of war referred to by Winthrop have subsequently synthesized into the present Article 104 of the Uniform.
Code of Military Jusilce which defines the offense as follows:
Any person who—
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other thing; or
(2) without proper authority, knowingly harbors or protects or gives
intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or
such other punishment as a court-martial or military commission may
direct.

The Code provision, like the civil law of treason, may be traced
for its antecedents to the middle ages. As a matter of fact, Winthrop finds the basis for the substantive provisions of Article 104
in tbe military code of Gustavus Adolphus in 1621.1'''
The equivalent English provisions appeared as Articles 17 and
18 of tbe British Articles of War of 1765 which were in force
at the beginning of the Revolutionary War.''^'^ These articles were
lifted, almost verbatim, into the American Articles of War of
'•'See WINTHROP, MILITARY LAW AND PRECEDENTS 629 (2d ed. 1920).
'^'^ Ibid. Winthrop was commmcnting on the 45th and 46th Articles of
War of 1874.
''•'Id. at 629-30.
-"WINTHROP, op. cit. supra note 174, at 907. Specifically, see Articles
67-72, 76, 77. The offense antedates even that; see, for example, the trial
of Marshall D'Audreham in 1367, noted in Keen, Treason Trials Under the
Law of Arms, 112 ROYAL HIST. SOC. TRANS. 15th 100 (1961).
WINTHROP, op. cit. supra note 174, at 931.
(J^

AGO 5354B

33

34696

TREASON
1770,1''^ and in substance describe the offense contemplated by
Article 104.^^^
Only one minor variation seems worth noting. Tbe original
provisionpunishing aiding the enemy limited sucb assistanceto
"money, victuals, or ammunition,"^^^ andthe languageremained
unchanged in Article 45 of the 1874ArticlesofWar.^^^ But times
bad canged. The day where aiding the enemy was limited by
the very nature of warfare itself was over. The CivilWar had
pointed out a myriad of new ways to aid enemies. Winthrop,
awareof theunduerestriction,consideredthe old phraseology to
be "baldand imperfect."1^^ Hearguedtbat a change was necessary,and suggested theinsertion of an additionalphrase suchas
"or otber thing" or "otherwise."^^^ It may be that the proper
approaehshouldnothavebeentoadd more words,but rather to
subtract afew.The provision could havebeenreduced simply to
"Whosoever relieves the enemy." The difficulty may have been
that this result would have placed on the courts the burden of
interpreting the meaning of "relieves," and opened the door to
the return of the "constructive treasons" long feared by the
English.
Congressapparentlychose togo along with Winthrop'srecommendation. In enacting tbe Articles of War of 1916, the words
"or other thing" were inserted.Perhaps Congress selected the
wrongphrase. The addedlanguageachievedthe purpose of substantially broadening the scope of the offense, but createdaproblem of semantics in the ^^.^^^case.i^^ Olson had achieved notoriety
as anorator in North Korean prisoncamps. Atthe behestof his
captorshe engaged inpro-Communist and anti-American speechmaking with the mission of "educating" his fellow prisoners.
Prosecuted under Article 104, Olson contended tbat making a
speecbwas not aiding the enemywith any "thing." In atwo to
onedecisiontheBoardof Review disagreed.i^^ Noting that aiding
^•^Id, at 953, Artides 27-28,
The Court of M^ilitary Appeals ha^ characterised Artide 104 asbearing a ^^striking resemblance^^ to its 1775 counterpart. See United Statesv,
Batchelor,7U.S.C,l^,A,354,368,22 C.M.I^,144,158 (1956),
'^'WiNrnROr,ep.^^^,.^^^^^^note174, at 953,Artide 27,
Aet of 22 .June 1874, Title ^ I V , C h , 5, art, 45, 18 Stat, 233
^^^^l^T^RO^^op.
.^^^^^^ note 174, at 631,
^^^7^^B^
Act of 29 August 1916,^3, Artide 81; 39 Stat,619,
^^^United States v,Glson,7U.S,C,l^l,A. 460, 22 C.^,R 250 (1957),
^^^CM 384483 Olson, 20 C,M,I^,,461 (1956),^.^'^,7U,S,C,M,A,460,22
C,^,l^.250 (1957).
AG0^3^48

34

34697

30 MILITARY LAWREVIEW
the enemyby participating in propaganda radio broadcasts had
been sufficient to predicate at least three civil convictions for
treason,!^^ tbe Board of Reviewconcluded that thepsychological
aspects of warfarehad "become as importantas arms,ammunition, and guided missiles."^^^ The Court of i^lilitary Appeals
viewed itotherwise.Tracingthehistoryof Article 104,the court
concluded tbat the word "thing" must be equated to "tangible
object."1^^ Olson's conviction, however, was sustained on the
ground that the specification still described the Article 104 offense
of communicating,correspondingorholdingany intercourse with
the en^my.i^i The military construction concerning tbe use of
tbe words"oroth^rthiiig^^ is important as the only area where
military rule is different from the civil rules applicable to treason
by aiding the enemy.
Ithasbeen suggested that Article 104definesamilitarylawof
treason. The objections tothat are many. Wh^re in Article 104
is any requirement that a conviction mustbebased onthe testimony oftwo wi^^iessestothesame overt act? Forgetting,forthe
moment, the crime of treason by levying war, where in the
treason statute is aiding tbe enemy limited to"arms,ammunition,
supplies,money, or other thing"?lf the two offenses are truly
different, in what respects are they different?
An arguable distinction advanced by Winthrop between the
ct^^nses described by Article 104 and treason is that the latter
ifaspecific intent offense; that is,there must be proof of an intent
tobetray,i--Butthisviewisnotuncontested.Dean Miller of Duke
University takes acontrary approach. Hestates: "Inorder that
the crime of treason be committed there must be an intent.
However no specific intent is required. It is sufficient that the
d^fendent intended todotheprohibitedact."i^^ I t i s well settled
thatthe offenses describedby Article 104 require only a general
intent.i^^
Theproblem of intent in treason ^^.^-^^-^^.^ Article 104,is one
with which the courts have wrestled with only limited success.
^^^20CMP at464
^^^7^at463
^' •^^ United Statesv. Glson, 7 U S C M A 460,467, 22 CMR 250,257
(1957)
7^ at 468,22 C M P at258
^-Sec WiNTHR^p,
^^^^..^^^^^^ note 174, at 630
MlLLER,CRIMINALLAW 502 (1934)
^^^^ See MANUAL EOR CouRTS-MARTlAL, Ul^lTEO STATES, 1951, para. 183;
United Statesv. Batchelor, 7 U S C M A 354,22 C M R 144(192^^.
AG02324^

3^

34698

TREASON
Tht problem was squarely raised in the case of Martin v. Young,
a habeas corpus proceeding involving the application of Article
3a, Uniform Code of Military Justice, to a serviceman who had
been discharged and reenlisted subsequent to alleged Article 104
offenses.This provision permitted court-martial for an offense
committed in a previous enlistment, which would otherwise have
been prohibited, where tbe offense was punishable by confinement
for five years or more and could not be tried in any United States
court.^^^ The Government contended that Martin met this criteria
and proceeded to charge him under Article 104 for offenses committed in a previous enlistment while a prisoner of war in Korea.
The Government's argument was almost contemptuously brushed
aeide by the court. The conduct alleged against Martin, held tbe
court, would also, inter alia, constitute treason and hence he was
subject to prosecution in United States courts under civilian
federal law."' In dealing with tbe argument tbat treason was a
specific intent offense while Article 104 was not, the court hedged.
Looking to the specification itself the court found Martin charged
with giving aid to the enemy "wrongfully, unlawfully, and knowingly."
This, the court held, imports "criminality" and it was
unnecessary to determine whether or not Article 104 denounced
a general intent offense.Just what the court meant by "criminality" was never made clear.
The meaning of the holding in the Mai fin case was subsequently
discussed by tbe Court of Military Appeals in the Batchelor decision.2°'^ The court referred without comment to Winthrop's conclusion that treason required specific intent and went on to hold
that Article 104 required only general intent.^°^ Discussing the
case of Martin v. Young tbe court found nothing inconsistent with
tbat holding. It concluded: "What the judge did not say is that
Article 104 requires a specific intent, or that it prescribes the
offense of treason, or that the Government is prohibited from
overproving its case in prosecutions under Article 104." -""^ Concerned with the intent required under Article 104, the Court of
Military Appeals can be accused of looking at Martin v. Young
"= Martin v. Young, 134F.Supp. 204 (N.D. Cal. 1955).
UNIFORM CODE OF MILITARY JUSTICE, Article 3a.
18 U.S.C. § 2381 (1958). See Martin v. Young, 134 F.Supp. 204, 207
(N.D. Cal. 1955).
7^. at 20g.
See zW. at 208.
2 0 " United
States v. Batchelor, 7 U.S.C.M.A. 354, 22 C.M.R. 144 (1956).
i ' l l Id. at 368, 22 C.M.R. at 158.
" /6t(f.
AGO 5364B

77
36

34699

30 MILITARY LAWREVIEW
through military justiceglasses.lt is suggested thatthe language
in that case may well be read,notforthe propositionthat Article
104 requires specific intent, bLitthattreason requires something
less.
Support for this interpretation may be bolstered by a close
lookattbelanguage foundinthe Supreme Court opinion inthe
C^^^^^^^^ case.^^^ Since intent must be inferred from conduct of
some sort, tbe court concluded it would be permissible to draw
theusualreasonableinferencesastointentfromtheovertacts.^^^
Tbis language indicates tbat something less thanproof of specific
intent will suffice.
Tbeanalogy of Article 104to treason was considered tangentially inthe ^^^c^^^^^^^^case.-^^ Theaccusedthere contendedthat
Article 104 was unconstitutional. The court saw the thrustof his
contentionasimplying that the articlerepresentsonlyaparticularizationof differentovert acts of treasom^^^W^henviewed more
closely it appears the contention was actually broader; that by
applyingArticle 104 to "anyperson," and thus including persons
not otherwise subject to tbe Code, Congress was purporting to
extendthe definition of treason. Tbis would be specifically prohibitedby the Constitution.Tbe obviouspath to avoid this prohibition mould have beenforthe court to hold thatArticle 104 and
treason were two separate offenses,This thecourtdeclinedto do,
preferring not to reach sucha"broadproblem."^^'^ Realizing that
this approach did nothing to solve theproblem, the court rationalized further that since Dickenson was clearly a person subject
to the Code, he had no standing to try to"vindicate the Constitutionalrights" of somethirdparty.-^^^
Tbe close relationship of Article 104 totreason isbolsteredby
anexaminationof some of the rules of lawappliedby the Court
of Military Appeals. When faced with problems concerning the
substantivelaw to be applied under Article 104, tbe court has
turned to tbeciviltreasoncases.Thus instructionsbyalaw officer
which were identical to those approved by Federal coLirts as
stating thelaw of the affirmative defense of duress to treason
-^^^^ Cramerv. United States,325 US 1 (1944)
^^•^See:i^.at3L
-^^^ United Statesv, Dickenson, 6 U S C M A 438,20 CMR 154 (1955)
^^^^^Id at 442^22CMR atl64
^^•See:ib:id.
See ibid.
78

AG0^32^5
37

34700

TREASON
have been upheld in three cases,^°^ The civilian rule concerning
the lack of motive as an excuse for treason has been applied to
Article 104,^^° Tbe definition of "enemy" has been lifted from its
civilian counterpart.^!^ The convictions of the "radio traitors"
of World War I I have been applied for the proposition that the
obligations of citizenship continue to rest on the shoulders of one
inside a foreign country and subject to the local rules of the
enemy.212 Indeed, while not required for an Article 104 conviction,
the Army has shown itself not unmindful of the two witnesses
rule,2!^ Conversely, the civilian courts have not hesitated to prosecute for treason individuals who, by reason of a break in service,
were lost to military jurisdiction.^^*
The usefulness of Article 104 is difficult to gauge. Records of
military courts are woefully inadequate to permit research on the
extent of its historical application. It is thus impossible to compile
any statistics concerning the number of individuals who have
been tried and convicted by military courts prior to the enactment
of the Uniform Code. Only two cases involving World War I I
prosecutions in violafion of Article of War 81 ever reached the
Board of Review level and both involved offenses committed
within the United States.^^^ Following the Korean War the offense
achieved some vitality as a vehicle for bringing prisoner of war
collaborators to trial. It is reported that ten of these individuals
were charged under Article 104 and eight convicted.^^s But its
comparative lack of use in no way imports obsolescence. In an
age where increased psychological and sophisticated pressures
may mold the minds of some to ignore their obligations of loyalty
See United States v. Olson, 7 U.S.C.M.A. 460, 22 C.M.R. 250 (1957) ;
United States v. Fleming, 7 U.S.C.M.A. 543, 23 C.M.R. 7 (1957), CM 388546,
Bayes, 22 C.M.R. 487 (1956),;7efifzo/z/o7-revww (fgnW, 7 U.S.C.M.A. 798,
23 C.M.R. 421, (1957).
See United States v. Batchelor, 7 U.S.C.M.A. 354, 22 C.M.R. 144
(1956).
See United States v. Dickenson, 6 U.S.C.M.A. 438, 20 C.M.R. 154
(1955) .
See United States v, Olson, 7 U.S.C.M.A. 460, 22 C.M.R. 250 (1957).
See

U.S.

DEP'T OF ARMY, FIELD MANUAL 19-5,

CIVIL DISTURB-ANCES

AND DISASTERS para. 1626 (1958).
See United States v. Monti, 100 F.Supp. 209 (E.D.N.Y. 1951); United
States V. Provoo, 125 F.Supp. 185 (S.D.N.Y. 1954), rev'd, 215 F.2d 531 (2d
Cir. 1954), 2d indictment dismissed, 17 F.R.D. 183 (D. Md. 1955), aff'd per
cwrzam, 350 U.S. 857 (1955).
CM 310327, Leonhard, 61 B.R. 233 (1946); CM 260393, Kissman
(B.R., 24 Aug. 1944).
Note, Misconduct in the Prison Camp, 56 COLUM. L. REV. 709, 745-46
(1956) .
AGO 6364B

yg

38

34701

30 ^IILITARY LAWREVIEW
to theircountry,amilitary lawof treasoncontinues tobenecessary to provide effective deterrent and adequate punishment.
VIL SUMMARY
Asurvey of the law of treason leaves little room for conclusions.
Itis,irdeed.ahistory lesson in which,contraryto Orwell, the past
controls thepresent Atthe outset, it cancei-tainly be observed
that the currentlaw, bothas enactedby statute and interpreted
by the courtsis heavily dependent onits Englishantecedents. In
every area the law has been found to have derived from its precedents and twentieth century judges have continued to rely on
opinions expressed by their ancestors, often hundreds of years ago.
The English l^w of treason was found to have enjoyed wide
and strict application and tohareresulted in perhaps thousands
of executions. In this areathe United States courts have failed
to keeppace.While castigating treasonasthehighest of crimes,
tbe American courtshave displayed more concern for individual
rights arid less for governmental vengeance. In contrast with
tbe English experience, not one man has ever been executed for
committing treason againstthe United States.^^^
Similar generalizations maybe made with respect to Article
104, the military law of treason Colonel W^intbrop to tbe contrary,
it appears impractical to call that offense by any otber name.
While certain legal distinctions may be found between the two
offenses they are more than outweighed by the similarities. I f
themilitary law is narrower in scope than its civiliancounterpart,
it isbecausehistory has shown noneed f o r a wider application.
As a result any number of treasonable acts may be envisaged
whicbwouldnotviolatetheconductdenouncedbyArticle 104.A
primeexamplewouldbeorganized resistance tothe enforcement
of afederal statuteorcourt order.But notasingle instance may
be conceived where the act that violates Article 104 would not
also constitute treason.
Therebavebeennotrialsfor treason inthiscountryforperhapsfifteenyears.It may be partially for thisreasonthat many
writers, suchas Dame Rebecca West, suggest that treason has
entered an area of obsolescence and is passing rapidly to the
obsolete.Inatime of "cold war"as we know ittoday,there seems
-^^John Brown was executed for treason committed against the State of
Virginia. See note 54.^^^^^^ and text accompanying
AGO 23^4a

39

34702

TREASON
little chance that treason can legally be committed. However a
host of related offenses, such as espionage, sedition, advocating
the overthrow of theGovernment,andfailingto register asasubversive organization, appear adequate to ftilfill the security needs
of the state during such a period. But this fact alone does not
compel tbe conclusion that the law of treason has no place in
modern society. Today treachery and disloyalty areamore real
and seriousfearthanever before. The peacetime traitor should,
by whatever law is necessary, be penalized f o r t h e evil of his
works and the wartime traitor punished forthe villainthat he is.

AG0^3^4a

^

40

34703

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 InteUigence
as a Requirement of
Aiding the Enemy
Endosure 5
29 March 2013

^Ac\ S tx)
APPELLATE EXHIBIT f^lQ
PAGE REFERENCED:
PAGE
OF
PAGES

MANUAL

FOR

COURTS-MARTIAL

UNITED STATES

1951

Efective 31 May i951

34704

34705

#

f 183a

CHAPTER XXVIIl

d. ENGAGING I N LOOTING OR PILLAGING

Discussion.—Tbe words "looting or pillaging" mean unlawfully
seizing or appropriating property wbicb is located in enemy or occupied (friendly or enemy) territory and is eitber left behind or is owned
by, or in the custody of, tbe enemy or occupied state, its inhabitants,
or persons who are under its protection or wbo. immediately before
the place where tbe act occurred bad been occupied, were under the
protection of the enemy or occupied state. The imauthorized removal
or appropriation of any part of the equipment of a seized or captured
vessel or tbe unlawful seizure or appropriation of property owned by
or in the custody of tbe officers, crew, or passengers on board a seized
or captured vessel, constitutes the offense of looting or pillaging wherever tbe vessel may be located at the time of tbe offense.
Proof.—(a) That tbe accused unlawfully seized or appropriated
certain property; {h) that tbe property was located in enemy or
occupied territory, or tbat it was on board a seized or captured vessel;
and (c) that the property was left behind—or tbat it was owned by,
or in the custody of, tbe enemy or occupied state or a person having
a certain status witb respect to the enemy or occupied state, or that
it was part of tbe equipment of a seized or captured vessel, or was
owned by, or in the custody of the officers, crew, or passengers on
board a seized or captured vessel, as alleged.
183. ARTICLE 104—AIDING THE E N E O T
This article denounces offenses by all persons wbetber or not otherwise subject to military law. The trial of offenders may be by courtmartial or by military commission.
a. AIDING OR ATTEiMPTIKG TO AID THE ENBJIT

Discussion.—"Enemy" imports citizens as well as members of military organizations and does not restrict itself to the enemy government or its armed forces. A l l the citizens of one belligerent are
enemies of the government and of all tbe citizens of tbe otber.
I t is not a violation of tins article, however, to furnish to prisoners
of war subsistence, quarters, and other comforts or aid to which tbey
are lawfully entitled.
To aid the enemy as used in this article is equivalent to furnishing
it with the arms, ammunition, supplies, money, or other things as
denounced in the article. I t is immaterial whether the articles furnished are needed by tbe enemy or whether the transaction is a
donation or sale.
Proof.—That the aocused either directly or indirectly aided or
attempted to aid tbe enemy with certain arms, ammunition, supplies,
money, or otber thing, as alleged,
338

34706

^^i^inv^ Aiirici.5^

ti^3^

^.^A^^Oi^lNGO^Fl^O^ECTlNG^HEENE^I^

.^^^c^^s^o^.—^eel^3^. An enemy is harbored or protected when,
without proper authority, he is shielded,either pbysicallyor by use
^f any artifice, aid, or representation, from any injury or misfortune
^hich in the chance of war may befall bim. I t must appear tbat the
offense is knowingly committed, but circumstances sulbcient to puta
reasonable man on notice will be su:^cient to charge the accused witb
notice.
^r^oB.—
Tbat the accused,witbout proper autbority,harbored
orprotectedacertainperson;
tbat the person soprotected was
^uenemy; and ^c) that tbe accusedhadnotice orwascbargeable
with notice of that fact.
C.GiyiNG INTELLIGENCE ^O THE E N E l ^

^^sc^ss^o^.—^eel^^i:^. This isaparticular case of corresponding
withtheenemy,renderedmorebeinousby thefactthatthecommunication contains intelligence tbat may be useful to the enemy for
^ y o f the many reasons that make informationvaluable to belligerents. As in the preceding case, knowledge must be proved, and it is
immaterial to the issue of guilt whether tbe intelligence was conveyed
bydirect or indirect means. Theword^intelligence^^importsthat
the information conveyed is true or implies the truth, at least in part.
. ^ ^ ^ o ^ . — T h a t the accused, without proper authority, knowingly conveyed tothe enemy certain information, as alleged; and
(^)that the information was true orimplied tbe truth, at least in part.
^.C01^^IUNIOA^ING,GORI^ESFON1^1N^,O^HOLDL^G1NTE^COUI^SE
WITH^HEENEl^y

.^^^c^^s^o^.—Communication, correspondence, or holding intercourse with the enemy does not necessarily importamutual exchange
cf communication. T^helawrequires absolute nonintercourse, and any
unauthorized communication, no matter what may be itstenor or
intent, is here denounced. T^heprohibitionlie^ against any method
of intercourse or communicationwhatsoever, and the offense is complete tbe moment the communication issues from tbe accused,wbether
i t reaches its destination or not. Tbe words ^^direetly or indirectly^^
apply to this offense. Itisessentialtoprovethattbeoffensewas
knowingly conunitted.
Citizensofneutralpowersresidentin or visiting invadedor occupied territory can claim no immunity from tbe customary laws of
war relating to communication witb the enemy.
^ r o o ^ . — T h a t tbe accused, without proper authority^ communicated, corresponded, or held intercourse withacertain person;
thatsuchpersonwasanenemy;and
that the accused had
notice or waschargeable with notice of this fact.

34707

UNITED STATESOF AMEI^^A

Manning, BradleyE.
PFC,U,S,Army,
HHC, U,S, Army Garrison,
JointBaseMyerHendersonHall
Fort Myer, Vii-ginia 22211

GovernmentTargeted Brief
On Recdpt oflntdligcncc
asaRequirementof
Aiding the Enemy
Enclosures
29 March 2013

34708

^

^ ^ ^ ^ ^
^

B.^^^.^

^

ADIGF^^T
01^

OPINIONS
OF THS

JUDGE ADVOCATE GENERAL OF THE ARMY,
WITH NOTES,
BT

B V T . COLONEL W. WHSTTHEOP,
Judge Advocate, U. S. Army,
ASSISTAOT TO THI JCDQS ADVOOATB G J C T S I U I .

IPXmUSHBD BY TEE ATTTHOKrar O? TEE SICC31BTART OP WAS.]

WASHINGTON:
OOTBRNMENT PRINTING OF7ICX.
SEPTEMBEB 1,1880.

BBCOND T H O U S A N D .

Mb Google

34709

PREFACE.
The opinions, of which abstracts are presented in this work,
consist of a selection from a mass of opinions recorded in the
forty four volumes of the Reports of the Bureau of Military
Justice, and fumished—mainly to the Secretary of War—by
BvT. MAJ. GEN. JOSEPH HOLT, Judge Advocate General,
firom September, 1862, to December, 1875, and by BEIG. GEN.
W M . McEEE DUNN, Judge Advocate General,firomthe latter date to the "present time. These opinions embrace those
given by the Judge Advocate General in the course of his
official reviews of the proceedings of mihtary courts, or otherwise in connection with the subject of the administration of
justice in the Army; as also those rendered by him in his
ex officio capacity of general legal adviser to the Secretary of
War or law ofBcer of the War Department, upon questions of
law arising in the business of that Department, and referred
to him for opinion by its Head.
The present work is not properly a later edition of the
Digest of which the last issue was published in 1868, but is
intended quite to supersede that publication. All that was
deemed of permanent value therein has indeed been retained,
but much the greater portion of the present volume consists
of matter entirely new, or in part new and newly presented.
Where practicable, such an arrangement has been made of
the extracts as to divest them in a degree of the effect of
disjecta membra and give them connection and sequence.
With the view of adding to the interest as well as value of
the work, the text has been illustrated by notes; the authorities cited being taken from compilations commenced,
for personal use, some fifteen years ago, and kept up with
the new adjudications, orders, enactments, &c., as they
appeared. The references—especially those made to cases in
General Orders—might bave been considerably extended,
but it bas been preferred to select such as were especially
m

;v(lno(j|p

ifjinrod !•

34710

I^

^EE^AOE.

pomted and pertinent. The citations include cases reported
in 10 Otto, (100 U^.S.,) the last volume of the Reports ofthe
Supreme Court, (publishedin August;) as also eases in the
15th volume of the Reports of the Court ef Claims, yet to be
published; aswell asopiniens to be contained in the forthcoming volumes—^Vand^VI—ofthe Opinions of the Attomeys General;^togetherwith General Ordersof the series
of 1880,as thusfarissuedfiromtheHeadquarters ofthe
Army and of the different mihtary departments.
Except in two or three instances specially indicated, no
opinion has been presented in thisvelume which is known or
bebeved to have heen disapprovedby the Secretary ofWar.
It is by bis authority that the work hasnotonly been printed
at the public expense, but, inorder that allproper persons
desiring the same may be supplied with copies, has also been
stereotyped.
^Idesiretoexpress my acknowledgments to theAttomey
General, Hon. Charles Deveus, fbr his courtesy iu permitting
me to examine and make extracts from the original opinions
as recorded in the Department ofJustice. W.W.

^ .^^^^^^^^^^

34711

AETIOLES OF WAB.

21

that the money, &c., fumished is exchanged for some commodit)', as cotton, valuable to the other party. X I I , 385;
X I V , 266; X V I , 446.
4. The act of " relieving the enemy " contemplated by this
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 government. X I V , 266. [See LAW OF WAR, § 1.]
FOETY-SLSTH ARTICLE.
" Whosoever holds correspondence with, or gives intelligence to, the
enemy, either directly or indirectly, shall suffer death, or such other panirnhment as a court-martial may direct."

1. Meld that the offence of holding 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.^ TV, 368; V, 274,287;
X, 567.
2. I t is essential, however, to the offence of giving intelligence to the enemy that material information should actually
be communicated to him; the communication may be verbal,
Ln writing, or by signals. X I V , 273.
FORTY-SEVENTH ARTICLE.
" Any officer or soldier who, having received pay, or having been duly
enlisted in the service of the United States, deserts the same, shall, in
time of war, sulfer death, or such other punishment as a court-martial
may direct; and in time of peace, any punishment, excepting death,
which a coart-martial may direct."
SEE DESERTION.

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

1. The liability, to make good to the United States the time
lost by desertion, enjoined by the first clause of this Article,
'Compare Hensey's Case, 1 Burrow, 642; Stone's Case, 6
Term, 627; Samuel, 680.

Oigitized byC00
34712

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 7
29 March 2013

End 1 hb
APPELLATE EXHIBIT 5/0
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34713
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UNITED STATES.

'L"^'h^L

TOQKTUKB W I T H THE

PBACTICE AND PROCEDURE OF COURTSMARTIAL AND OTHER MILITARY
TRIBUNALS.

1
K^'rj.'Y
^"->'y

p,
L.

BY

!.

BmoAmicn-GicyEUAL GEORGE B. DAVIS,
JLWiE-AbVOf.VTK (lENGBAL, U , S. A „

FoT^?.e?ly I'Toftstor of Laic ai tite Unitid Slaies MUiiaT}/ Aeail4m%,
Wesi Fcir^, M
BEco^m mirioN,
THIBD

SEVISSJ}.

THOUSAKC.

NEW YOKE:

JOHN WILEY & SONS.
CHAPMAN & HALL, LiairsD.
1911.

f:::r
ryr
W-



li%^'i°"yyr''

iS^:

y:

34714

TUE ARTICLES OF WAE.
that is, to the officers and non-commissioned officers of the guard, to such
meir.bers of the guard as are actually engaged in the performance of duty as
sentinels, and to such other persons as are permitted or required, on account
of their official duties, to pass and repass a line of sentinels at night.
The parole, which serves as a nheck upon the countersign, is given only
to those who, by their office or duty, are entitled to visit and inspect guards
or sentinels at night. I t is used solely as a means of identification, but it
cannot avail as a piissport unless accompanied by the countersign. The
term "watchword," as used in the Article, comprehends not only the
countersign and parole, but any preconcerted word or signal issued, by competent authority, for a similar purpose in the performance of guard or
outpost duty.
The ofieuse may be committed by any military person who makes Isnown
the watchword to one not entitled to receive it, in accordance with existing
orders and regulations, or who gives a parole or watchword different from
that which he received. As no specific intent is set forth in the statute, the
offense may be committed through negligence or inadvertence, or with the
intent to convey the watchword to the enemy; the offense would be complete in either case.
AEXICLE 45. Whosoever relieves the enemy with money, victuals, or ammunition, or knoiuingly harbors or protects an enemy, shall suffer death, or
such other punishment as a court-martial may rlirect.
ASTICLE 46. Whosoever 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.
These provisions appear respectively as Articles 18 and 19, Section l i ,
of the British Code of 1774, as Articles 18 and 19, Section 13, of the American Articles of 177(5, and as Nos, 50 and 57 of ths Articles of 1806.
In view of the general tarm of description "whosoever" in these
Articles it was held, during the late war, by the Judge-Advocate-General and
by the Secretary of War, and has been held later by the Attorney-General,
that clTiiians, eqiudly with military persons, were amenable to trial and
punishment by court-martial under either Article.' But the sounder construction would seem to bo that, as the Articles of War are a code enacted
for the government of the military establishment, they relate only to persons
belonging to that establishment unless a different intent should be expressed
or otiierwise made manifest. No such intent is so expressed or made manifest. I'ersons not belonging to the military establishment may be proceeded
' Dig. .J. A. Gen., 40, par. 1. Admitting tills construction to be wurrftnted so fur as
relates to acta coinmitteii on the outre of war or wiihiu a district under martial law, it
is t(> be noted tlml it is tlie efiect of tbe leading- adjudged cases to preclude tbe esercise
of the military jurisdiction over this class of offenses when committed by civilians in places
nol under military government or martial law, See, especially. Ex parte Milligan, 4
Wallace, 121-123; Jones es. Soward, 40 Barb., 563. Ibid., 40, par. 1, note.

^....^

34715

LT

MILITAliY LAW.

.^('l

Jll

against for the acts mentioned in the Article, but it is by virtue of the
power of another Jurisdiction, namely, martifai law; and martial law does
not owe its existence to legislation., but to necessity,' The scope of these
Articles under the legislation of 1776, apparently extending their application to civilians, seems to have been modified as a consequence of the
adoption of the Constit-ution.
Believing the Enemy,—The act of "relieving ths enemy" contemplated by this 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 government,' It is none the less
relieving the enemy under this Article that the money, etc, furnished is
exchanged for some commodity, as cotton, valuable to the other party.'
Holding Corresponde'Aee with the Eaemy,—The offense of holding correspondence with the enemy is completed by writing and putting in progress a
letter to an enemy, as to an inhabitant of an insurrectionary State during
the late war; it not being deemed essential to this offense that the letter
should reach its destination.* I t is essential, however, io the offense of
giving intelligence to the enemy that material information should actually be
communicated to him; and such communication may be verbal, in writing,
OT by signals,*
" The rule -which declares that war makes all the citizens or subjects of
one belligerent enemies of the government and of all the citizens or subjects
of the other applies equally to civil and to international •wars." An
insurrectionary State is no less " enemy's country," though in the military
occupation of the United States, with a military governor appointed by the
President.'
h.^.tv>iy, 47. Any officer or soldier who, havino received pay or having
heen duly enlisted in the service of the Umted States, deserts ihe same, shall,
in time of war, suffer death, or such oilier punishment as a court-martial
may d%reci; and in time of peace, any punishment excepting death which
(ftrec*.
a (Xwrf-marfMf
The first statutory recognition of this offense in England dates from the
middle of tho fifteenth century, and will be found ia an enactment' conferring the status of felony upon a soldier who deserted from the captain whom
' Opia. J. A Gen.
' Dig. J, A Gen , 41, par. 4.
' Hid., pur 3.
^ IhU , 4%, par. 1.
' Ibid , par S.
' The Service, 8 Wall., 974, 418, See, also, the opinion of the U. S Supreme Court
(frequently since reiterated in substance) aa given by Qiier, J. fn the "Piize Cases,"
8 Black, 66(5 (883), and by Chase, C.J,, Sn the cases of Mrs. Alesander's Cotton , end
Dig. Opin J. A Gen , 41, par. 8.
' 18 Henry VI , cb. 16.

«^
e

34716

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 8
29 March 2013

g / i J F to
APPELLATE EXHIBIT S / ^
PAGE REFERENCED:
PAGE
OF
PAGES

34717

WAR DEPARTMENT
OFFICE OF IHE JUDGE ADVOCATE GENERAL

OA^Y
r^.

- A&oc&ie jehe^bi's

^A DIGEST OF OPINIONS
OF THE

JUDGE ADVOCATES GENERAL
OF THE ARMY

1912
:\

. :

WASWGTWI

wvmxm^n-pRBfUNcomcE
I9i7

TO L. I

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f, f—ci I-M I I r - * f ^ \ / u r yin_-i

' /

34718

35-6"
Ll/y^ 3 5 ^ J L
I

I

^

(Lf-jz, I

,

WAB DEPARTMESTT,
OPFICE OF THE CHIEF OF STAFF^

Washington, February 17,1912.
The following Digest of Opinions of the Judge Advocates General
of the Army, prepared under the direction of the Judge Advocate
General, United States Army, hy Capt. Charles Roscoe Howland,
Tvrenty-ffrst Infantry, Assistant to the Judge Advocate General, is
published for the information of the Anny and Organized Militia of
the United States.
By order of tho Secretary of War*
LEONTAEB WOOD,

Major General, Ohief of Staff.
3

U4-t-». / / u » » i ' » _ ^ ^ „ i ^

-«_-Do.ui_ys«o.-;,«_ A f f l 131 11.. ^/-'ocrvUT^^-yA^-^rvt.x /T,-O.

;\ / A o. /.;_-) on/

-7n/ ->/~r\/i -in/ -)r--ic:A/io.«^««-_nr'5/-in/->ni'D o.on.nn A ^^

34719

AETIOLES OF WAR XXJf B.

129

XIV B. During the War of the Rebellion ali inhabitants of insurrectionary Statos were prima fade enemies in the sense of tliis and
Mar., 1865. A dtixen of an
the succeeding artide,* S, 14,
insurgent State who entered the United States military service became
of course no longer an enemy. So heM of a Ueufcenanfe of the First
East Tennessee Cavahy. R, 29, g06, Aug. 1869.
UN C, It is no leas a relieving an enemy under this artide that the
money, dc, fumished is exekangtd for some commodity, as cotton^,
valuaWe to the other party. R. 12, SSS, Mar., 1865; U, B6S, Mar.,
mSj 16, 446. Aug., 1865.
ZLY C 1. Tiie act of "relicving the enemy" contemplated by this
artide is distinguished from that of trading mth. tho enemy in viola*
tion of tho laws of war; the former being restricted to certain particular forms of relief, while the latter includes e^eiy kind of commcrdal
intercourse ijot expressly authorized hy the Govemment, i?. 14,
SS6, Mar., 1865. (See War.)
XLVI A, Held that the offense of holding corres^pondence with the
enemy was completed hy writing and putting in progress a letter to
an inhabitant of an insurrectionary Stat© during the War of the
Rebellion j it not being deemed essential to this offense that the letter
should reach its de,stjnation.' R. 4, 370; 5, S74 and 291, Nov.,
186$; 10,667, Nov., 1864.
XIVI B, It is essential, however, to the offense of giving inteUigeme to the enemy that material information, should actually be communicated to him; the coiamunication may be verbal, m writing, or
by signals. R. 14, M7$, Mar.^ 1865.
HTLIL A. Mm that when a deserter is retumed to duty without trial there is an inaplicd admission on his part of the desertion.
This admission estabHsfies tbe desertion and entails the requirement
in the forty-eighth artide of war that he shall make good the time
lost in desertion.* i?. 55, m, Aw., 1887, P. &6, #7, StfL, 1888;
C. lem, Apr. 11,1908; 16814, Sept. 3, .1904 and Nov. IS, 1906;
moo, Nov. ^8,1906; mU7, Feb. 15,1907.
w%e made manifest. No each intent is so eipreaeed or made manifest. Pereana not
btkging to the military cstabliitment may be proceeded againat for the *ct» meatioced in tbe article, but it is by virtue of the power of aoother jurisdiction, namely,
okartal law; and martini
does not owe iia ©xietenco to legation but to neceeeity.
•fiw scope of those article* under the legialation of 1776, apparently extending their
»5pHcation to dviliana, aeema to have become modified on the adoption of the OonstitiiBaii.

Pottfibly the siitj'-third article of war diould be conatrued aa laaHng "retaiuera to
UM cSHap," etc., part of tho military forced for the time being. But see the case of
B. G. HarriB, U . €., tried by court-martial in 1863, (H. Ex. Doc. 14, 39th Cong., lat
•BW.)

' Bee tho opmlon ol tbe United States Supreme Court ({nsquentlv since reiterated,
ia laWacce), as givea by Grier, 1,, in the "PriseCaees," 2 Black. 635, 666 (1S62);
ta4fayCiiaM, C. J ., in the cases of Mm. Alexandor'a Cotton, and The Vtmice, 2 Wallace,
374, 418 (1864). In the latter case tho Chief Justice observes: "Tbe rule which
declmres that war makes all the citizens stibiecUi of cne belligerent enemies of the
Goyemment and of all the citLzeiM or gtibjecta of the other, applies equsUy lo civil
W to international wars." That an insurrectioiiary State waa no leen "enemy":
mm try," though In the military occttpation of the United Stat**, with a militaiy
gijir-emor appointed by the Prtaiaent. (Sec Opinion bv Pifild, J., in Coletnatj v, TenBeaw, 7 Otto, 509. 516, 517.)
* O'Brien, H7; Hemey's Case, 1 Borrow, 642; Stone's Cane, 6 Term, 527; Samuel,

m.

'

'26Op. Atty, Gen., 239.
93673"—17 9

3
,/i—I

. „ „ / o.t,i_„„o.^;..,_Ar-(i n i 1-3 r,-7-7^nchc,i p\/nr,f;pi
34720

UNITED STATES OF AMERICA
V.

Government Targeted Brief
on Courtroom Closures

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

29 March 2013

On 1 March 2013, the United States offered to submit a targeted brief on courtroom
closures in the military and federal systems, to include analyses on whether recent case law
relating to the right to a public trial affects the requirements under United States v. Grunden, 2
M.J. 116 (C.M.A. 1977), and to what extent military and federal courts have closed proceedings.
In the first section of this targeted brief, the United States explains whether recent case
law relating to the right to a public trial affects the requirements under Grunden. Case law is
clear that the requirements of Grunden still apply, yet must be read in concert with Rule for
Courts-Martial (RCM) 806.
In the second section of this targeted brief, the United States explains the details
underpinning various courtroom closures, particularly upon what courts have relied to close the
courtroom, to what extent the courts ha ve closed the courtroom, and what, if any, measures the
Court may adopt, both during and after court closure, to further control that which is closed to
the public. Ultimately, government counsel in military and federal cases have employed various
methods, based on the facts of the case and nature of the materials in question, to demonstrate
the classified nature of the material and to identify those portions of its case which will involve
this material to justify courtroom closure, consistent with the balancing test under RCM 806,
FACTS
On 31 January 2013, the United States requested courtroom closure, in whole or in part,
for the testimony of 37 of the 141 govemment witnesses and provided the particular subject
matter to which each witness would testify in a closed session. See Appellate Exhibit (AE) 479.
The United States estimated that the requested closures comprised approximately 30% of its
case.
On 1 March 2013, the Court ordered the United States to provide more specificity with
respect to which portions of testimony closure was sought. See AE 503. In its supplemental
response, the United States provided a greater degree of specificity. See AE 505. Further, in
light of reasonable altematives available short of closure, the United States narrowed its list of
witnesses for whose testimony closure was sought to 28. The United States currently estimates
that the requested closures compromise approximately 25% of its case. See id.

APPELLATEEXHIBIT 51

iimfS"^

34721

WITNESSES/EVIDENCE
The United States requests the Court consider the enclosures to this ftling and the
Appellate Exhibits cited herein.
DISCUSSION
I . Grunden is Still Good Law Yet Must be Read in Concert with RCM 806
The right to a public trial derives from two sources: first, the Sixth Amendment, in so far
as it attaches to the accused, see Manual for Courts-Martial, United States, R.C.M. 806(a)
analysis, at A21-48 (2012); see also Waller v. Georgia, 467 U.S. 39, 46 (1984); and second, the
First Amendment, in so far as it applies to the public, see RCM 806(a) analysis, at A21-48; see
also Richmond Newspapers, Inc., et al. v. Virginia et a l , 448 U.S. 555, 580 (1980). The right to
a public trial is not absolute. See ABC Inc. v. Powell, 47 M.J. 363, 365 (C.A.A.F. 1997). Both
the military and federal systems adopt a balancing test to curtail this right. See RCM 806(b)(2);
see also Press-Enterprise Co. v. Superior Ct. of California, 464 U.S. 501, 509 (1984); Waller,
467 U.S. at 48.
In the military system, the seminal case on courtroom closures remains Grunden. See
Denver Post Corp. v. UnitedStates, 2005 WL 6519929, at 2 (A.C.C.A. 2005) (encouraging
practitioners to apply the "valuable, practicable guidance in the context of excluding the public
and press from court-martial trial proceedings" set out in Grunden); see also Stars and Stripes v.
UnitedStates, 2005 WL 3591156 (N-M. Ct. Crim. App. 2005) (following Grunden when
addressing issues of potential release of classified information during public court-martial
proceedings). The guidance provided in Grunden is as follows:
It is our decision that the balancing test employed by a trial judge
in instances involving the possible divulgence of classified
material should be as follows. His initial task is to determine
whether the perceived need urged as grounds for the exclusion of
the public is of sufftcient magnitude so as to outweigh "the danger
of a miscarriage of justice which may attend judicial proceedings
carried out in even partial secrecy." Stamicarbon, N. V. v. American
Cyanamid Co., 506 F.2d 532, 539 (2d Cir. 1974). This may be best
achieved by conducting a preliminary hearing which is closed to
the public at which time the govemment must demonstrate that it
has met the heavy burden of justifying the imposition of restraints
on this constitutional right. The prosecution to meet this heavy
burden must demonstrate the classified nature, i f any, of the
materials in question.
Grunden, 2 M.J. at 121-122. During this iniftal step, "[a]ll that must be determined is that the
material in question has been classified by the proper authorities in accordance with the
appropriate regulations." Grunden, 2 M.J. at 122. The Court ofMilitary Appeals (CMA)
continued that the trial judge "must ftirther decide the scope of the exclusion of the public"

34722

which will require the prosecution to "delineate which witnesses will testify on classified
matters, and what portion of each witness' testimony will actually be devoted to this area." Id, at
123. To this day, this process outlined in Grunden serves as the backbone underlying the
necessary balancing test for courtroom closure. See Denver Post Corp., 2005 WL 6519929, at 2
(encouraging practitioners to apply the Grunden guidance).
In Waller, 467 U.S. 39, the Supreme Court ftrst articulated this balancing test. To close
proceedings and thereby limit the right to a public trial, the trial judge must 1) decide that the
party seeking closure has advanced an overriding interest likely to be prejudiced, 2) ftnd that
closure is no broader than necessary to protect that interest, 3) consider altematives to closure,
and 4) make findings adequate to support the closure. See Waller, 467 U.S. at 48 (adopting the
Press-Enterprise approach articulating a four-part test for balancing interests at stake in closure).
In 2004, RCM 806 was amended to reflect the Supreme Court's balancing test in light of military
case law set forth m. ABC Inc., 47 M.J. at 363 and United States v. Hershey, 20 M.J. 433, 436
(C.M.A. 1985), which interpreted Grunden and applied the Constitutional standard enunciated
by the Supreme Court. See RCM 806(b) analysis, at A21-49. And so, Grunden is not at odds
with the later Supreme Court cases, provided it is read in concert with RCM 806 which imports
them to military jurispmdence.
Though both the military and federal systems apply substantively the same balancing test
when considering closure, closure to protect classifted information is only available in the
military system. Military courts follow RCM 806 when closing the courtroom and are explicitly
authorized by MRE 505(j) to close proceedings to protect classified information. Cf. United
States V. Anderson, 46 M.J. 728, 729 (A.C.C.A. 1997) (stating that "absent national security
concems or other adequate justification clearly set forth on the record, trials in the United States
military jusftce system are to be open to the public."); see also RCM 806(b) analysis, at A21-48
(stating that "the only time trial proceedings may be closed without the consent of the accused is
when classified information is to be introduced"). In the federal system, protection of classifted
information does not amount to the many reasons that federal trial courts may close proceedings.
See e.g. UnitedStates v. Zimmerman, 19 C.M.R. 806, 814 (A.F.B.R. 1955); Globe Newspaper
Co. V. Superior Court for Norfolk County, 457 U.S. 596 (1982); UnitedStates v. Short, 41 M.J.
42 (C.M.A. 1994)); UnitedStates v. Thunder, 438 F.3d 866, 868 (8th Cir. 2006); UnitedStates v.
Farmer, 32 F.3d 369 (8th Cir. 1994); Bobb v. Senkowsk, 196 F.3d 350 (2nd Cir. 1999); LaPlante

V. Crosby, 133 Fed. Appx. 723 (11th Cir. 2005). Instead, federal law has procedures in place to
protect classifted information via the Classified Information Procedures Act (ClPA). See United
States V. Abu Ali, 528 F.3d 210, 246-49 (4th Cir. 2008); see also In re Terrorist Bombings of U.S.
Embassies in East Africa v. Odeh, 552 U.S. 93, 120-23 (2nd Cir. 2008); UnitedStates v. Aref
533 F.3d 72, 78-81 (2nd Cir. 2008).
I I . Extent of Closure
The Rules pursuant to which military courts evaluate closure requests are RCM 806(b)(2)
and Military Rule of Evidence (MRE) 505(j). As discussed above and through recent filings,
these mies must be read together with Grunden. See AE 507. As instmcted by the Army Court
of Criminal Appeals (ACCA) in Denver Post Corp., Grunden can provide focus on how to apply
and make the closure decision provided for in RCM 806 and MRE 505(j). Below, the United

34723

States highlights the details underpinning various courtroom closures, focusing particularly on
what courts have relied upon to close the courtroom, to what extent the courts have closed the
courtroom, and what, if any,measures the Court may adopt, both during and after court closure,
to ftirther control that which is closed to the public. The United States has includedamore
expansive and thorough case-by-case explanation of courtroom closures, both in military and
federal courts, in the subsequent section.
A. Demonstration ofNeed for Closure.
G^^^^^^ makes it clear that the Court's"task is to determine whether the perceived need
urged as grounds for the exclusion ofthe public is ofsufftcient magnitude so as to outweigh ^the
danger ofamiscarriage ofjustice which may attend judicial proceedings carried out in even
partial secrecy'."G^^^^^^,2M.J.at 122(citing^^^^^^^^^^^^,V.^ ^^^^^^^^^^C^^^^^^^^C^.,
506F.2d 532,539 (2d Cir. 1974)). G^^^^^^ continues that "the prosecution to meet this heavy
burden must demonstrate the classifted nature, if any,ofthe materials in question."^^. at 122.
As the following cases and enclosed material prove, the "method used by the prosecution to
satisfy this burden...will vary depending upon the nature ofthe maleriais in question and the
information offered."
In^^^^^^^^^^^^v^^^^^^^^,31MJ 849(N-MCMR 1990,^^^^^^^^^^^,35ML
396(C.M.A.1992),govemment counsel met its burden by demonstrating the need for closure
during witness testimony consisting ofclassifted information with swom afftdavits which set
forth "^aj list ofthese offtcers^who will provide testimony on classifted mattersland the
govemment'srationaleforrequesting that they testify in closedsession."^^.,at 853. TheCourt
interpreted G^^^^^^ to require "individualized decision-making as to speciftc ^^^^^^^^^^^ which
the Govemment asserts must be exempted from disclosure atapublictrial"^^^^ judicial
ftndings for each closed session. ^^^^^^^^^^^,31M.J.at854(emphasisadded). Here, the
United States submitted its list of witnesses andadetailed description of the testimony for which
closure is sought, and the applicable classiftcation guides conftrming the classiftcation level of
that information. ^^^AE 505. The United States has demonstrated the need for closure under

^ . extent ofclosure.

Pursuant to G^^^^^^ and consistent withRCM 806, the prosecution must then justify
closure by specifying "which witnesses will testify on the^matter at issue as well aslwhat
portion ofeach witness'testimony will actually be devoted to this area" and the Court must
"decidelon^the scope of the exclusion ofthe public."^^. at 123(ftndingthat,"evenassuminga
valid underlying basis for the exclusion ofthe public, it is error of^constitutional magnitude'to
exclude the public from all ofagiven witness'testimony when onlyaportion is devoted to
dassiftedmaterial"). This Court must "engage in the necessary analysis as to each witness'
expected testimony and to understand in advance how and why it could touch onaclassifted
matter before excluding the public." ^^^v^^.^^,^^C^^.,2005 WL6519929,at3;.^^^^^,^^
G^^^^^^,2M.J.at 121-22. Todo so,the Court noted that it may "require counsel for both sides
to disclose the subjects of their questions forawitness in advance inaclosed session." D^^v^^
2005 WL65199^9,at3 On 15March2013,the United Statesdidjustthatbyproviding

34724

this Court with the detailed subjects of its questions for each witness whose testimony it requests
courtroom closure. See AE 505. The United States is aware of no case law requiring more than
the subject of that which will be elicited during the closed proceeding to justify closure. The
issue, therefore, is to what extent the courtroom may be closed.
Generally, the extent of closure depends entirely upon the facts and circumstances of
each case. See ABC Inc., 47 M.J. at 365 ("every case that involves limiftng access to the public
must be decided on its own merits ... and the scope of closure ... tailored to achieve the stated
purposes") (referencing San Antonio Express- News v. Morrow, 44 M.J. 706, 710 (A.F.C.M.R.
1996) and Hershey 20 M.J. at 436); see also Grunden, 2 M.J. at 121 (emphasizing the
importance of a balancing test employed to examine and analyze the need for and scope of any
suggested exclusion). In UnitedStates v. Terry, 52 M.J. 574 (N.M.C.C.A. 1999), the Court cited
Grunden saying:
While we did note in Anzalone that the closed portion of the trial
was limited to 79 pages of the 479-page record of trial, our
superior court expressed quite clearly in Grunden that "the
propriety or impropriety of the exclusion of the public from all or
part of a trial cannot, as attempted by the Govemment in this case,
be reduced to solution by mathematical formulas. The logic and
rationale governing the exclusion, not mere percentages of the
total pages ofthe record, must be dispositive."
Terry, 52 M.J. at 578 (citing Grunden, 2 M.J. at 120 fh 2) (emphasis added). This position is
consistent with the Supreme Court's decision in Globe Newspaper Co. and numerous federal
circuit court cases. See Globe Newspaper Co., 457 U.S. at 605 (finding that the interest
supporting the exclusion is what should drive closure inquiry); In Re Washington Post Co. v.
Soussoudisi, 807 F.2d 383, 392 (4th Cir. 1986) (the trial court is required to execute the closure
analysis by evaluating the principles and interests at stake, considering possible altematives, and
articulating findings adequately supporting their closure decision); Judd v. Haley, 250 F.3d 1308,
1319(11th Cir. 2001); Thunder, 438 F.3d at 868; Walton v. Briley, 361 F.3d 431, 433 (7th Cir.
2004); see also Ayala v. Speckard, 131 F.3d 62, 70 (2nd Cir. 1997) (the greater the closure
sought, the more "must be the gravity of the required interest and the likelihood of risk to that

interest").
For courtroom closures based on the disclosure of classified information, the courts in
Lonetree and Denver Post are again instmctive. The Court in Lonetree made it clear that the
extent of closure for purposes of divulging classifted information should be focused on the
particular information for which closure is sought. See Lonetree, 31 M.J. at 853 (stating that
"MRE 505 is directed towards the information sought to be exempted from disclosure at public
trial" and thus when "the information may be divulged by a number of witnesses or documents,
or both, the focus of exclusion is upon that specific information"). The Court explained that "the
specificity required [in the military judge's decision] addresses the information to be protected,
not through what method it is disclosed." Id. Here, as in Lonetree, the scope of exclusion should
be focused on the specific classified informafton that may be divulged.

34725

In^^^^^^^^, the appellate court applauded the extent ofclosure employed as "the fairest
and most practical that could be devised" and one that "allowed both partiesareasonably normal
context within which to pursue their respective positions." ^^^^^^^^^^^,31 M.J.at 853. The
extent ofclosure in ^^^^^^^^ was follows:
The extent of the closures was determined by^^^^^^^ Government
or defense. The militaryjudge had already determined which
information, because of its classifted status,would be presented in
closed sessions. The fact that certain unclassifted information was
disclosed by individuals whose duties and identities could not be
publicly matched-up was necessary to protect classifted
information. Further bifurcation of other witnesses^ testimony,
other than as occurred,was impracticable and would have created
unnecessary chaos.
^^^^^^^^,31M.J.at854. Other military courts also recognize that, in some circumstances,
bifiircating testimony may be impractical. In^^^v^^^^.^^C^^.,forexample, thcACCA
contemplated that "inafew instances, the witnesses^ testimony could be fairly characterized as
so inextricably linked to classifted matters as to make it all properlyreceived inaclosed
scssion."D^^^^^^^.^^C^^,2005 WL6519929,at3.TheCourtagrccd thatit could be
difftcult ifnot impossible to separate the classifted information from the unclassifted information
for several witnesses who dealt directly and solely with the investigative and initial reporting of
the events under review.
C. Control or Curative Measures.
Even after the public is excluded from the court, the Court has available control or
curative measures toftirthermaximize the openness ofthe proceeding. In .P^^.^,^^^^^^^^.^^, the
Supreme Court noted that "[wjhen limited closure is ordered, the constitutional values sought to
be protected by holding open proceedings may be satisfted later by makingatranscript of the
closed proceedings available withinareasonable time, if the judge determines that disclosure can
be accomplished while safeguarding the [interest requiring protection!." ^^^^^-^^^^^^^^^^C^.,
464U.S.at^l2. This guidance has been echoed by federal cases in numerous circuits.
.^^^^.^^A^^^,^^^^^,^v.C^^^^^^.^-^^^^7^^^,641F.3d168(5thCir.2011);,^^^7^^^^
Fed. Appx.3^4(2nd Cir. 2004) unpub. Therefore, at trial,should this Court determine that
disclosure of some testimony elicited during the closed proceeding is not "necessary to permita
contextual and complete understanding ofthe classifted testimony" and would not jeopardize the
protection ofclassifted information, the Court may order an unclassifted portion ofthe transcript
ofthe closed proceeding to be made available. ^^^F^nclosurel. Another possibility under this
scenario is for the witness, whose testimony duringaportion ofthe closed proceeding may be
disclosed to the public withoutriskingdisclosureof classifted information, to provide an
unclassifted summary ofthose portions oftestimony which can be disclosed to the public.

34726

D. Digest ofCourtroom Closures.
The below cases and enclosed trial materials may be helpfiilin understanding what other
judges have considered, but also do not articulate clear thresholds. The United States has found
no federal authority explaining how much material the Govemment must put beforeaFederal
trial judge in order to meet ^^^^^ balancing test requirements. Instead, both military and federal
case law suggest that facts and notaparticularpercentagcoraspeciftc asserted interest are
controlling.
The below cases are consolidated into the following sections: (l)federal cases closed on
the merits but not for classifted information; and (2)military cases closed for classifted
information. In the ftrst section, each paragraph details the extent to which the proceedings were
closed as well as whythe appellate authority found the closure in constitutional accordance. In
the second sections, paragraphs include information on the stageofproceeding closed, the extent
ofthe closure, and information onjustiftcation forthat closure.
The United States has provided as enclosures abbreviated versions ofmany ofthe sources
cited because they are not available onWestlaw or LexisNexis. These enclosures will be
additionally referenced parenthetically in the respective citations. Additiona11y,one ofthe
enclosures is provided to the Court ^.:^^^^^^. TheUnited States will providearedacted version
ofthis enclosure to the defense.
i. Federal Case Examples: Closed onMerits but not for Classifted Information
,B^^^,^^^v.^^^^^,586F.3d439(6thCir2009)^Closedft^r Witness Protection
^ Misconduct and Ontcome^The defendant was convicted of (intent to commit)murder
and possession ofaftrcarm during commission ofafelony in Michigan state court.
^

Extent ofClosnre^ At the start ofthe initial trial, the prosecutor moved to close the
courtroom to spectators during the testimony ofthree prosecution witnesses(two of
whom claimed to have seen the shooter). The three individuals were afraid to testify
publically given that two other prosecution witnesses had been killed under suspicious
circumstances. The prosecution requested total closure; the defense acquiesced but
requested closure not be ordered in presence ofjury. The trial court did not remove
anyone from the courtroom, but instead instmcted in the absence ofthe defendant's
relatives.

^

Jnstificarion^The appellate authority noted the absence of trial courtftndingsto
facilitate its decision and expressed concems about thebreadth ofthe closure ordered^
saying, the "prosecution offered no proofthat Johnson or anymemberofJohnson^s
familywas involved in the death ofthose individuals" and "did not point to any incidents
in which the witnesses at issue had been threatened or otherwise contacted by any
member ofJohnson^sfamily."(emphasis added) The court also mentioned that the record
contained no evidence the defense'sfailure to object was strategic.

34727



Disposition: The Federal district court granted partial appeal to consider whether the
defendant was denied his right to a public trial. After considering the above, the Court
ordered an evidentiary hearing "to determine [among other things] whether closure of the
trial was justified."

Smillie v. Greiner, 99 Fed. Appx. 324 (2nd Cir. 2004) unpub. - Closed for the protection of
informants and offtcers
^ Misconduct and Outcome: Co-defendants (convicted of various crimes) alleged
abridgement of their Sixth Amendment right to a public trial.
Extent of Closure: The courtroom was fully closed during the testimony of a
conftdential informant and an undercover police offtcer.
^

Justifications With regards to the conftdential information. The court stated the safety
ofthe witness was an "overriding interest" and that the closure occurred solely during the
Cl'stestimonymcant the closure was "no broader than necessary." Additional1y,ho1ding
that where neitherparty suggested altematives, trialjudges are not obliged to consider
them
and so, the altematives prong was satisfted. Andftnally,sincethe trial
court'sftndings were explicit that there were threats to the informant'slife and family,
theftndingsprong was likewise satisfted. These same reasons applied to the offtcer. Vet
the appellate court expanded its mention ofthe interests at issue to include protecting his
useftilness as an undercover offtcer. Moreover, the Second Circuit concluded that by
making the transcript available to the public and not scaling the courtroom for other law
enforcement offtcers, the trial court demonstrated thai it used discretion in closure.

^

Disposition^The Second Circuit held both closures comported with the requirementsof
the 1^^^^^ balancing analysis.

^

Note^.^^^^^^v^^^^^,237F.3d125(2ndCir.2001),.^^^^v.^^^^^^,^^,196F3d350
(2nd Cir 1999),and^^^^^v^^^^^^^,131F3d 62 (2nd Cir 1997) also uphold thetrial
court'sdecision to fully close the courtroom to hear the testimony of an undercover
policeofftcer for very similar reasons as ^^^7^^^.^ Though earlier than the two cases
described above, all three are published.

AppIieation^The above cases are consistent with the proposition that what matters most to
appellate courts considering whether the public trial right has been abridged is notaparticular
interest or amount of closure, but rather that the trial judge has: taken the time to gather the casespeciftcinformation,weighed the interests at stake, considered proposed altematives, and
ordered closure targeted only at those interests through ftndings. In conducting that evaluation,
the cases highlight that closure forthe entire testimony ofasingle witness can be "no broader
than necessary" ifthe interest warranting closure attaches to that witness, and that by keeping the
' The Federal circuit courts have also approved total closure to protect victims and minor children. These cases are
not relayed here because the subject matter differs more from the interests driving the Govemment's pursuance of
closure in the case at hand. However, information on these courts and their application of the balancing tests used
can be provided to the Court should the Court desire.

34728

court open for other witnesses ofasimilar type that trial court can demonstrate discretion.
Fina11y,the cases highlight that ability to produceatranscript can alleviate some ofthe public
trial concems. This last proposition is also supported by Supreme Court case ^^^.^.^-^^^^^^^.^^
and Fifth Circuit case^^^^.^^V^^.^^^^.^vC^^^^^^.^G^^7^^^,641F.3d168(5th Cir. 2011)
(hereinafter .^^^^,^^) The^^^^.^^ court wrote: "^Whcn...closure is ordered, the constitutional
values sought to be protected by holding open proceedings may be satisfted later by makinga
transcript ofthe closed proceedings available withinareasonable time, if the judge determines
that disclosure can be accomplished while safeguarding'the interest that gaveriseto the need for
closure." ^^^^.^^at181citing.^^^,^,^-^^^^^^^.^^at512.In the case of classifted information,
perhaps any unclassifted information which surfaces during the closed testimony could be
produced asaredacted transcript as soon as practicable.
ii. Persuasive Military Case Examples: Closure for Classifted Information
^^^^^^^^^^^^v^^^^^^,2011WL414992(ACCA2011)unpub^
^ Misconduct and Outcome: Defendant pled guilty to and was convicted of wrongfully
making and storing classifted information in violation ofaregulation and possessing
pomography in violation ofageneral order. He was further found guilty of failing to
obeyalawftil order, conduct unbecoming, and retaining national defense information.
^

Extent of Closure: According to the record oftrial, the case involved seventeen
courtroom closures to hear the classifted portions ofsome sixteen ofthe total forty-two
witnesses. These portions include both classifted and unclassifted material. There were
also two additional closures^oneforaG^^^^^^ hearing and one to consider closure
underRCM 506 (unclassifted Govemment information).

^

Justification: While the record does not conlainawritten closure order or written
ftndings on closure, the Court did haveaG^^^^^^hearing^atranscript ofwhich is
enclosed with this ftling. Enclosure 2.^ In the hearing the Court considered the
classifted information in three sections^agroup of documents already spedfted as
appellate exhibits,agroupofrcdacted documents from which defense requested use of
information behind redactions, andathird smaller group of documents having been
rev^iev^ed laterthan the others. Notwithstanding the separate ^oupings, the Court

undertook virtually the same inquiry.
The prosecution began by referencing the documents'classiftcation and the OCA
declaration and affidavits related to it. Lventually, the prosecution spedfted which
witnesses it anticipated testifying about those documents. When presenting this
information to the court, the Govemment spedfted only that the witness would cover

^^s courtroom closure issues were not raised on appeal, the citation offered here is provided so the courtmay
reference background information for and appellate consideration ofthe case. It is not intended asacitation tor the
clostire employed in the original trial.
^TheCourt also hadahearing on closure under ^1^^. .isthat hearing tocused on closure for non-classified
information pursuant toal^ule not at issue here, neither is the transcript of any ^1^^ proceeding enclosed nor does the
above closure description describe anypotential endings on that issue.

9

34729

how the document related to national defense, how the information could be used to the
injury ofthe United States, and how it related to the elements ofthe charged offenses.
The prosecution did not address what exactlythe witness would say. Then, the military
judge would announce either the document and general description thereof ("defense plan
for ^ " ) or the piece ofinformation the defense wanted to use ("information aboutV
procedures" or "^-kind ofpeople") and its classiftcation marking. Thejudge would
mention he had considered the relevant OCA declarations and document markings and
was satisfted that1)the documents were properly classifted in accordance with relevant
Lxecutive Order provisions and2) their public disclosure posed reasonableriskofharm
or danger to national security interests. After the inquiry about the information in each
section, the Judge would ask the trial counsel about the method ofits intended expression
(testimony). Heexplained that this inquiry matters so that he can determine how the
sessions would ftow in the interests ofjudicial economy and public movement. He
spedfted in most circumstances that the counsel should callawitness, have that witness
testify to the greatest extent possible about unclassifted matters such as biographical
information and then proceed intoaclassifted session. However, thejudge recognized
that some identity informationmayitselfbe classifted and therefore warrant greater
closure.
During the hearing, the judge also commented that impact witnesses could announce an
unclassifted general opinion in open court yet discuss speciftc opinions and the examples
on which they are based in closed court. Moreover, he suggested that theftndingsabout
harm and classiftcation on which the courtroom closure order is based could be applied to
any witness who would testify about classifted information addressed notjust those
witnesses spedfted during the session.^ Finally,he also noted that counsel should
constmct direct examination questions bearing in mind that classifted information should
be elicited together so as to minimize the opening and closing ofthe proceedings.
^

Disposition: Public trialrightswere neither raised b^ the accused nor addressed by the
appellate authority on appeal. Apart from one speciftcation on other grounds, the guilty
ftndings were affirmed.
Proposition: This case is highly instructive for ftve main reasons. First, thejudge
indicates that courtroom closure is appropriate wherever the content ofthe classifted
document must be discussed. Second, that the judge had to holdaG^^^^^ hearing to
specify those bits ofinformation the defense wished to use but which otherwise required
redactions, highlights the limitation ofredactions as an altemative to closure. Thisis
consistent with the Govemment'sdiscussionofredaction as an altemative in its initial
G^^^^^^ ftling. ^^^AF^480. Third, that thejudge considered the information ftrst
befcire inquiring about the method ofits introduction is consistent with the instmction in
.^^^^^^^^ that it is the information and not the method ofits delivery which requires
speciftcity. This proposition is furtherrespected by this judge'swillingness to decidea
topic ofinformation warrants closure and then applythat closure requirement to any
witness who maytestify about it^only asking the counsel which witnesses will discuss

4

This comes from Page 285, Line 18- 286, Line 14 in the classified ex parte filing provided to the Court. See
Enclosure 3. Other descriptions provided are evidenced primarily in the unclassified portions.

10

34730

the information in order to establish its relevance and getaprojectionofproceeding ftow.
Fourth, the judge recognizes that just becauseawitness may be able to give an
unclassifted general opinion ofimpact, it should not prevent counsel ftom elicitinga
more speciftc opinion including classifted examples during closed session. And ftnally,
the judge mentioned how the counsel should constmctadirect examination by grouping
all classifted information together but never asked them to provideacopy ofthose
questions.
U^^^^^^^^^^.^v^^^^^.^^^,68ML 378 (CAAF2010)^
^ Misconduct and Ontcome:The accused was convicted of conduct prejudicial to good
order and discipline as well as attempting to give intelligence to the enemy, to
communicate with the enemy,and to aid the enemy.
^

Closure: During the lower court proceedings, the militaryjudge ordered courtroom
closure for two witnesses.

^

Justification: One witness would testify to unclassifted but sensitive and not publically
disclosed infomiation about weapons systems. The Govemment sought MRE 506
closure.^ The other witness would testify to classifted weapons system information.^
Before making the closure decision, thejudge held an Article 39(a) session for the
presentation ofevidence and argument. Although the United States is not in possession
ofthe classifted record oftrial, the closure order reveals that thejudge in^^^^^.^^^
applied the balancing test after having reviewed the evidence and the relevant
classiftcation declaration or privilege assertion with the Court Security Offtcer. The
judge found proper classiftcation and the risk ofharm. The conclusions oflaw mirrored
theseftndings,applying the preponderance ofthe evidence standard to proving
reasonabledanger ofharm. The Court noted too that Govemment had "delineated those
portions ofits case that involve" the materials at issue. The judge ultimately ordered
closure for anytime it was reasonably expected that the classifted content ofthe protected
exhibits ortestimonymust be displayed or discussed, must be directlyreferenced during
argument or testimony,or must be referenced by the court on the record.
Enclosure 5.

^As courtroom closure issues were not raised on appeal, the citation oflered here is provided so the Court may
reference background information for and appellate consideration ofthe case. It is not intended asacitation tor the
closure employed in the original trial.
^ ^ 1 ^ 5^6 docs not explicitly authori:^c courtroom closure and l^P^ 505 does. Therefore, to close pursuant to
^ 1 ^ 5 0 6 , the Oourt would have to fnlly explore the contention that ^ 1 ^ 5 0 6 information constituted an overriding
interest under P^^lVl 806, whereas, to close the courtroom pursuant to ^1^505, the court^ust has to be convinced,
byapreponderance of the evidence, that the evidence is properly classified and thus deserves lVll^505(i^
protection. In the face of that burden, the united states acknowledges that just like in .^derson,a^ourt considering
closure may wish to consider witness testimony for 1^1^ 506 information because it is not self-evident or easily
understood as warranting protection, yet can rely on classification markings and substantiating documentation such
as classification reviews and classification guides tor ^1^505 infrormation.
^Thisreqnest to close the court to hear classified infrormation appears from the closure orderto have been made
orally before the court. The Ignited states has been unable to find refrrence to this oral request in the unclassified
record oftrial in its possession, ^written rec^uest wasfroundas an appellate exhibit however.
Enclosures.

11

34731

^

Disposition: Although the case was considered by an appellate court, neither did the
accused raise nor did the appellate courts consider public trial issues during their review
ofthe case record. CAAFafftrmed.

^

Proposition: Like the other closure cases, ^^^^^.^^^ suggests that when the content of
classifted information is put forward closure is warranted. Further, it highlights
^^^^^^^^^^^^q^^^^^v^^^^^^^ as the standard to which the Govemment must prove that
the information at issue was properly classifted and can reasonably be expected to result
in harm ifimproperly disclosed. Finally,the closure order notes the Govemment had
delineated where it expected the information to be involved in its case. In this case, the
United States has done more^delineating not only where the information will be elicited
witness by witness, but at what stage ofthe case, to what level ofdetail, and to what
relevant end. ^^^AE505.

^^^^^^^^^^^.^vD^^^,69ML127(CAAF2010)and^^^^^^^^^^^^
(NMCCA2009)^
^ Misconduct and Ontcome:The accused plead guilty to violatingalawftil general
regulation, conduct unbecoming an offtcer, as well as unauthorized removal and
wrongful communication ofclassifted information.
^

CIosnre:The trial judge closed the courtroom to hearthe classifted testimony oftwo
witnesses regarding the same classifted document.

^

Jnstiftcation: In considering the overriding national security interest proffered to warrant
courtroom closure, the judge considered: the assertion of classifted information privilege
bythe Deputy Secretary ofDefense,amemorandum by the Original Classiftcation
Authority(OCA), the declaration ofthe person(also one ofthe witnesses)who
determined the document at issue was properly classifted, as well as the relevant
classiftcation guide and associated instmctions. Thejudge articulatedftndingswhich:
identifted the classifted document to be discussed, supported the conclusion that the
document had been properly classifted, stated that serious national security damage could
be reasonably expected based on the documcnt'sclassiftcation designation, explained
that closure would occur for each oftwo witnesses, noted no defense objections to
courtroom closure to protect classifted information, and inferred that defense crossexamination would likely also elicit dassifted information. His conclusions mirrored
theseftndings^articulatingtoo that the document had been c1assifted,was relevant to the
case, and required courtroom closure for classifted discussion. The conclusions also
stated that the Judge had conducted the proper balancing analysis and found the interest
to be overriding. Lastly, the conclusions explained that altematives would be used to the
extent possible but also that they would not allow forthe classifted content to be
adequately presented and explored. Court closure was "necessaryto permitacontextual
and complete understanding of the classifted testimony",allow for effective cross-

.^s courtroom closure issues were not raised on appeal, these citations are provided so the Court may relerence
background information for and appellate consideration of the case. They are not intended as citationsfr^rthe
closure employed in the original frial.

1^

34732

examination, and permit clariftcation if necessary. Moreover, the judge highlighted that
the testimony would be bifurcated - presenting classifted information during closed
sessions and unclassified information during open session. During the open session, the
witness could explain unclassified details such as background, biographical information,
and an unclassified summary ofhis testimony. The closed session, he concluded, could
include only so much unclassified information as necessary to preserve the coherence of
the classifted testimony. Finally, in addition to ordering closure for the Govemment's
case-in-chief, the judge preserved the opportunity to do so again should the defense's
case necessitate it. See Enclosure 1 ?


Disposition: Though considered twice by appellate authorities (one in a published
opinion), neither did the accused raise nor did the appellate courts consider public trial
issues during their review of the case record.

#

Proposition: This closure order helps showcase four things. First, in it, the judge
discusses the limitations of affidavits, unclassifted summaries, and unclassifted testimony
as altematives to classifted testimony in closed session. This is similar to the judge's
discussion of redactions in Steele and Ledford. And, it is consistent with the
Govemment's explanation of altematives in its original Grunden ftling. See AE 480.
Second, and relatedly, this closure order anticipates that the closed classifted sessions
may include such unclassified material as necessary to preserve the coherence of and
ensure context for the classified information. This is consistent with the actions in
Lonetree. It demonstrates that a closed classifted session can include unclassifted
information without ceasing to be narrowly tailored. Third, in a way also consistent with
Lonetree, this closure order idenfiftes biftircation as an important tool for courts to
demonstrate discretion and their use of the Grunden "scalpel." In fact, in Grunden, the
court writes "bifurcated presentation of a given witness' testimony is the most satisfactory
resolution of the competing needs for secrecy by the govemment, and for a public trial by
the accused." Grunden at 123. In its original Grunden filings, the United States spedfted
closure was only sought for those portions of the testimony which are classifted. See AE
480 and 506. In so doing, the United States is recognizing and requesting bifurcation as
an important "scalpel." Fourth, like Steele, this closure order is instmctive as it
emphasizes open applicability of theseftndingsto whatever witnesses may need to testify
about the classifted information considered. Consistent with Lonetree's explanation that
speciftcftndingsare not required witness-by-witness or method-by-method, the order
recognizes that witnesses other than those spedfted in the motion at issue may require
protection. The judge notes that a party should notify the court of infbrmation "which
might necessitate additional closed sessions."

United States v. Ledford, US Navy Southwest Judicial Circuit (2005)
• Misconduct and Outcome: The only material in the prosecution's possession regarding
this case is the judge's closure order. As no appellate information is available nor is the
record of trial in the Govemment's possession, it caimot providefiirtherbackground
information on this case.
' The Diaz Court's protective order, Enclosure 6, and the Prosecution's motion. Enclosure 7, are also included for
the Court's reference

13

34733

Closure: Thejudge ordered closure for the introduction ofclassifted evidenced
occurring only during the portionsofawitness'testimony in which it was reasonably
expected that the classifted content of the protected exhibit or testimony must be
displayed or discussed. The court spedfted closure fbr identity-protected witnesses,
classifted linkages between persons and missions, classifted video footage, and classifted
document contents.
^

Justification: In this case, two Article 39(a) sessions were held fbr the parties to make
argument and present evidence on courtroom closure. The judge'sftndings articulated
the general type ofinfbrmation being proteded (i.e."discussions or viewings of
tactics^rolls^locations"), how that infbrmation would be protected, and what general harm
wasriskedif the infbrmation was revealed (i.e."wou1d reveal fbreign govemment
infbrmation[and] intelligence sources and methods"). Theftndingsdemonstrated their
considered nature by specifying that altematives would be used until the classifted
content needed to be discussed. Finally,theftndingsexplained thaf the judge'sreview of
the evidence with the accompanying classiftcation declarations reveal that the
Govemment had established byapreponderance ofthe evidence that classiftcation was
proper. The judge'sconclusions explained: therightsat stake; the burden on the
Govemment to show the classiftcation and reasonable danger posed by disclosure ofthe
infbrmation at issue; that the judge had conducted the required analysis; and that the
evidence was relevant, neccssary,and otherwise admissible. The actual closure "order"
section stated alternatives would be used according to the purpose they serve but that
courtroom closure would be used wheneverthe classifted content required exploration.
Additionally,this section explained generallythe order in which the classifted and
unclassifted sections would occur. Final1y,the judge required onlythat the counsel
notify the court prior to opening statements which witnesses they anticipated required
court closure and then notify the court prior to eliciting the information that that
discussion was coming.
Enclosure 8.
Disposition: The United States has fbund no evidence that this case has been appealed.
I^^oposition: This closure order is helpful in that it demonstrates howajudge can really

fbcus his or her mling on the information warranting protection. Doing so is consistent
with the infbrmation-centric emphasis explained in^^^^^^^^ and exempliftedby
Further, in providing infbrmation centeredftndings,the order also demonstrates the
extent to which altematives such as screens and shields are limited. It shows they are
useful ifwhat needs hiding is visual, but not ifthe infbrmation to be protected is oral
content warranting exploration. This is consistent with the Govemment'sdiscussion of
altematives in its initial G^^^^^^ ftling. ^^^AE 480. Also, this closure order highlights
thaf the Govemment need only convince the Court ofproper classiftcation and of
reasonably expected harm bya^^^^^^^^^^^^q^^^^^v^^^^^^^. That the judge relied ona
review offhe evidence and OCA declarations, suggests he did not feel the need to call
witnesses to testify during the closure hearing. Finally,fhisordcris useful as it explains
the Court only expected infbrmation on anticipated witnesses affected befbre opening
statement and an alert when closure was imminent during testimony. Consistent with fhe
14

34734

above-described Steele case, there is no requirement that the Court nail down exactly and
ftnally which witnesses require closure and know exactly where in the examination that
will occur. Such an approach is also consistent with an information-centric and not a
witness- or method-centric approach as advocated in Lonetree.
UnitedStates v. Anzalone, 40 M.J. 658 (N.M.C.M.R. 1994)
• Misconduct and Outcome: In this espionage case, the accused was a Marine charged
with a variety of offenses arising, primarily, out ofhis contact with an FBI agent whom
appellant believed was a Soviet Union intelligence offtcer.


Closure: The proceedings were periodically closed to the public. The closure ultimately
amounted to 79 pages of the 479 page record, or approximately 16%.



Justification: The Court held the closure requirements had been met. It focused on the
probability of the prejudice and the limited nature of the closure. It stated that likelihood
of prejudice was established through descriptions of the classifted information (in this
case, affidavits). As the trial was closed only when the defense or trial counsel
anticipated discussing classifted matters, the closure was appropriately limited. The
United States has been unable to locate any further information showing what the
affidavits contained or how the lower court judge actually ordered the closure.



Disposition: The closureftndingsof the lower court were afftrmed.



Proposition: This case shows that like those described above the trial court need not
hear testimony about the information before ordering courtroom closure, but rather can
rely on affidavits. Moreover, it suggests that by closing only where counsel anticipated
classifted information to surface, the trial court made an acceptable effort to close no
more broadly than necessary.

UnitedStates v. Martin, 2012 CCA LEXIS 848 (N.M.C.C.A. 2012) and UnitedStates v. Martin
2012 CAAF LEXIS 427 (C.A.A.F. 2012)'°
• Misconduct and Outcome: Intending to use his lawful access to classified national
defense information to reap personal monetary benefit, the accused was apprehended
surrendering state secrets to a "Chinese govemment official" (in fact an undercover FBI
agent). The defendant pled guilty to multiple specifications of espionage and gathering
defense information in violation of UCMJ Articles 106(a) and 134.


Extent of Closure: According to the prosecuting trial counsel in this case, the
Govemment's entire sentencing argument occurred in a SCIF based on the highest
classified nature of the information.

As courtroom closure issues were not raised on appeal, the citation offered here is provided so the Court may
reference background information for and appellate consideration of the case. It is not intended as a citation for the
closure employed in the original trial.

15

34735

^

Justification: As neither the accused raised his Sixth Amendment righf nor did fhe
media or general public attempt to attend, public trial issues did not arise fbr
consideration bythe military trial judge.

^

Dlsposition:The accused did appeal to the Navy Marine Court of Criminal Appeals(sec
above citation)on the severity ofhis sentence. The NMCCA considered the record and
was convinced the punishment received was deserved. Accordingly,the appellate court
affirmed the lower court'sftndings. The Court ofAppeals fbr the ArmedForces denied
review.

^

Proposition: While public trial issues in fhis case were not litigated, it is worth noting
that the appellate authority also declined to raise them. According to Federal case 1aw,as
aConstitutionalquesfion,whether public trial rights have been violated is reviewed
^^v^, and the speciftcftndingsofthe Court regarding fhe closure are reviewed fbr abuse
ofdiscretion. ^^^^^^^.^^af 174-75;,^^^^^.^^^^^^^at44;^^^^^^^,^^^^^.^v.^^^^^^,426F.3d
567,571 (2nd Cir 2005);^^^^^^^^^^^.^v^^^^^^^,342F3d 948, 974(9thCir2003);
^^^^^^^^^^^.^v.^^^^,473 F.3d 146,156(5fhCir.2006) And so, it stands to reason, that
had fhe appellate court, in reviewing the record, considered the closedoff nature ofthe
facilify to have implicated the public or the accused'sconstitutional rights, it could have
elected to have evaluated those circumstances against the constitutional requirement fbra
public trial. They did not.

^^^^^^^^^^.^v.^^^^^^^^,31M.J.849 (N.M.C.M.R. 1990)q^^^^^^^^^^^^^^.^v^
M J 396(CMA 1992),^^^^^^^^^^^^^,507US 1017(1993)
^ Misconduct and Ontcome:The accused wasaMarine convicted by general courtmartial ofidentifying United States intelligence personnel to Soviet agents, providing
plans and assignments ofUS embassy personnel, and failing to report contacts with
communist citizens.
^

Closnre:The Military Judge excluded the public from the complete testimony of some
witnesses and portions of others. The accused alleged this amounted to 25% ofthe
testimony.

^

Justification: During the original case, the Govemment presented two affidavits in
support ofits request fbr closure. The ftrst, classifted "SECRET,"explained that
witnesses to be called bythe government were professional intelligenceofftcers who
would provide testimony on classifted matters. It also listed the govemmenfs rationale
fbr requesting that they testify in closed session. The United States could ftnd no
infbrmation on how that rationale was articulated. The Govemment also sought to
protect certain spedfted intelligence sources and methods.The judge in the lower court
case conducted his own analysis ofthese materials. In reviewing thaf court'sclosure, the
NMCMR mled in favor ofthe Govemmenf^ftnding thaf the military judge properly
analyzed and balanced the competing interests befbre ordering the closing offhe court to
the public when specifted classifted information was tobe presented. TheNMCMR
wrote:

16

34736

WedonotbelieveG^^^^^^mandatedjudicial ftndingsfbreach
closed session when the Court ofMilitary Appeals stated that
"limited portions" of a court martial may be partially closed
despite defense objection . . . [but rather fbr] individualized
decisionmaking asto speciftc infbrmation which the Govemment
asserts must be exempted ftom disclosure at a public trial
whenever that infbrmafionispresenfedduringthecourseof the

trial.
If explained that, because MRE 505 focuses on fhe information af issue, speciftcity must
occur with respect tothe information and not necessarily the method ofits disclosure.
This stands in contrast fo closure fbr something like an individuals'privacyrighfs where
fhe interest being protected will vary accordingto fhe personal situation of each witness.
And so, after classiftcation ofawitness'response had already been determined, to make
"speciftcftudingseachfimeaseriesofquestionsistobeaskedofawitness...wouldbe
fo create unnecessary and dismptive biftircation ofthe trial and constitute an exercise in
redundancy." The resulting confusion, fhe Court sfated,"wou1dmakeadifficu1f trial an
incomprehensible one and would be the antithesis ofafair and orderlyproceeding". In
fhe case of^^^^^^^^, fhe appellate court also fbund thaf the procedure fhe lower court
followed was "the fairest and most practical that could be devised." Namely:
The extent of the closures was determined by either Government
or defense, (sic) The military judge had already determined which
information, because ofits classifted sfafus,would be presented in
closed sessions. The fact thaf certain unclassifted information was
disclosed by individuals whose duties and identities could not be
publicly matchedup was necessary to protect classifted
infbrmation. Further bifurcation of ofher witnesses' testimony,
other than as occurred,was impracticable and would have created
unnecessary chaos. In fact,the apparent inadvertent disclosure of
classifted information by both partiesin public sessions occurred
rather frequently despite the effbrts of the court fo ensure
nondisclosure. The procedure utilized allowed both parties a
reasonably normalcontextwithinwhich to pursue their respective
position.
^

Disposirion:The accused appealed fhe trial court'sclosure decision fo the NMCMR
claiming, among ofher things, that the judge erred in failing to ftnd speciftc overriding
national securify interests fbr each closure and in failing to narrowlyfailor each closure.
This NMCMR held that each closure did not requireftndingsand that fhe closures were
adequatelyfailored. The case was then reviewed by fhe Court ofMilitary Appeals on
ofher grounds. Its review did not disturb the public trial portions ofthe NMCMR's
mling. The United States Supreme Court denied certiorari.

^

Proposition: This case is highlyinsfmcfive. It emphasizes the needto consider cases on
an individual basis. If explains that speciftcftndingsaren'fnecessary fbr every closure
17

34737

and goes on to explain that what matters is whether fhe infbrmation warrants protections.
If demonstrates the persuasiveness of afftdavifs. And ftnally,it highlights bifurcation as
an important scalpel tool.

CONCLUSION
The fbregoing digest of cases providesasnapshot ofhow previous judges have handled
courtroom closure. They highlight that courts have endeavored to use altematives and
bifurcation to balance fhe public trialrightsagainst, but have nonetheless closed proceedings fo
allow witnesses to contextualize, discuss, and clarify classifted information af stake. These
sessions have included unclassifted infbrmation tothe extent necessaryto preserve the coherence
ofthe classifted testimony. The United States has fbund no indication that the parties have ever
had to present examination questions in advance. Neither does there appear to be any authority
behind havingawifness testify duringaG^^^^^^ hearing fo test the viability of altematives.
Doing so would, the United States maintains, offend the need to consider infbrmation more than
method of elicifation or source when deciding whether protection is warranted in fheftrstplace.
Moreover, it would hardly promote judicial economy because the degree to which altematives
may or may not work fbr one witness'testimony cannot infbrm the degree to which they will
work fbr another testifying to separate information and inadifferent manner. Military appellate
authorities tmst trial judges tomake these decisions^requiringprimarilythat fhe courts simply
engage in fhe appropriate analysis. Courts must evaluate the principles and interests af stake,
consider possible altematives, and articulateftndingsadequately supporting their decision on
closure. Vet they need not note speciftcftndingseach time fhe closure actually occurs. If is the
United States'position thaf the evidence and classiftcation reviews coupled with the proffered
testimony provides more than enough infbrmation fbr the Court to safelymle to close the
courtroom.

JEFFREVHWHVTE
CPT,JA
AssistantTrial Counsel

ASHDEN FI
MAJ,JA
TrialCounscl
8Enclosurcs
1. ^^^^^ Closure Order
2, ^^^^^^RedacfedTranscripf Excerpt
3^^^^^^UnredacfedTranscripfExccrpt^^^^^^^["SECRET^^RELT0USA,MCFI]
18

»

4.
5.
6.
7.
8.

34738

Anderson Govemment Motion
Anderson Closure Order
Diaz Courtroom Protective Order
Diaz Govemment Motion
Ledford Closure Order

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 29 March 2013.

ASHDEN FEIN
MAJ, JA
Trial Counsel

19

34739

GNITED STATESOE 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 Courtroom Closures
Enclosure I
29 March 2013

EACI

1

-io

APPELLATE EXHIBIT SU
PAGE REFERENCED;
PAGE
OF
PAQiS

34740

DEPARTMENT OF THE NAVY
GENERAL COURT-MARTLVL
NAVY-MARINE CORPS TRIAL JUDICIARY
CENTRAL JUDICL^L CIRCUIT

U N I T E D

S T A T E S
CLOSURE ORDER

MATTHEW M . DIAZ
LCDR, JAGC, USN
1. This maiier comes before ihe Court pursuant io the Govemmeni Motion for Appropriate
Relief Pursuant io M.R.E. 505 (Appellate Exhibit I) to close certain proceedings in the above
captioned case. The defense did not ftle a responsive pleading, bui has filed its own Defense
Notice M.R.E. 505 (Appdlaie Exhibit LXIX).
2. The court considered the Assertion of Classified Information Privilege of Deputy Secretary of
Defense, Gordon England dated 15 November 2006 (Appellate Exhibit 65); ihe memorandum of
ihe Original Classification Authority (OCA), dated 14 Augusi 2006 (Appellate Exhibit 57, Encl.
F); and the Declaration of Paul B. Rester, Director of die Joint Intelligence Group, Joint Task
Force Guantanamo Bay (JTF-GTMO), dated 21 April 2006 (Appellate Exhibit I , Encl. B). The
court also considered ihe JTF-GTMO Classification Guide of 1 December 2006 (Appellate
Exhibit LXIII (sealed)) by which classification of the document at issue is principally govemed;
and Appellate Exhibits LXl and LXII (sealed), which contain guidance implemented by
Appellate Exhibit LXIII. The court enters ihe following:
Findings of Fact.
1.

Appellate Exhibit LXFV (sealed), is a copy of the document at issue in this case
(hereinafter "JDIMS list") (also referred io as Enclosure "A" to Appellate Exhibit 57 (not
attached to that exhibit)). That list contains the names of GTMO detainees and related data
fields.

2.

Mr. Paul Rester has 30 years of experience in ihe intelligence and security field and he is
presently the Director, Joint Intelligence Group, JTF-GTMO.

'3.

MrKcsierlias reviewed the JTF-GTMO Classificatibh Guide and determined that the
JDIMS list is currently properly classified SECRET.

4.

The OCA concurred with the determination of Mr. Rester.

5.

The Deputy Secretary of Defen.se reviewed ihe declaration of Mr. Rester and the OCA
concuiTence, determined that ihe JDIMS list is properly and currently classifted SECRET,
APPeLlATEEXHIllT_yyii2

SjMmLASSIRED

1%!,;^^=:

34741

^^o^^^^^^^^o

and invoked the M.R.E. 505 classified information privilege over disdosure of ihe list in
opencourt.
^.

In additionto having providedadedaraiion, Mr. Rester wihbeawiiness in ihis case. Mr.
Robert Rates will also testify. The testimony ofboth rueu during ihc govemment'scase
in-chief will include information regarding the classified datafieldscontained in the
JDIMS list and will necessarily indudeadiscussion of information classified at ihe
SECRETIevd

^.

Disdosure of ihe SECRET information contained in the JDIMS list and in ihe witnesses'
testimony regarding thai information is reasonably be expected io cause serious damage io
nationalsecurity. However, noi all of iheir testimonywill contain classifted information.

^.

The govemment has tendered the following order of presentation: Mr. Rester, followed by
several other witnesses providing unclassifted iestimony,and ihen testimony by Mr. Rates.
This order of presentation is necessary noi only to establish ihe relevance ofMr. Rates'
testimony, bui also to permitacontextual and complete understanding of ihe classified
testimony ofboth men. This order of presentation would necessitate iwo closed sessions,
one for each witness.

9.

The defense has noi objected to ihe classified testimony being received inaclosed session
at this courtmartial, bui the defense has reserved any objection tothe testimony of the
witnesses on the basis of relevancy or other evidentiary objections.

10.

Additiona11y,the defense has served notice of iheir needto present the JDIMS list to the
members for examination, toinquire into an explanation of the datafieldscontained
therein, and iodemonsiraieaworking model of ihe JDIMS database. These matters the
defense expects to introduce principally through crossexamination ofMr. Rester and Mr.
Rates.

Conclusions.
1. The JDIMS list ai issue in ihis case, in its present format, is currentiy properly classified
SECRET
2. The testimony ofMr.Resier and Mr. Rates regarding ihc JDIMS list is relevant because ii
relates tothe dassified nature of ihe list, how ihe JDIMS database works,and the classiftcation
status of ihe JDIMS list atthe time itwas released. The dassified status of ihe document is an
element of Chargesland 11 and isafacior thai members may consider in determining whether
^he^formation conidned inihe lisi is national securiiy information: An^explanaiio^^
nature of the information in ihe JDIMS list is also relevant for the members todetermine whether
the list is national securiiy informaiion,whethcr or noi itwas classified at the time of its release.
3. Theprosecution has sustained their burden of persuasion that closure of this courtmartial
during the dassifted iesiitnonyofMrResier and Mr. Rates is necessary in ihe interest of
^^it^r22xi^^i^^

^^0^^55ll^l^0

^ ^ ^ ^ ^

34742

^^^^^^^^^^^0

national securiiy and ihe proposed closure shall be as narrowly tailored as is possible, as more
fully set forth below.
4. This court has carefully balanced ihc constitutional mandate for ihc conduct of public trials,
and ihe accused'sright toapublic trial, against ihc poicdial serious damage io ihe national
securiiy ofthe United States thai would result from ihe public disclosure ofSECRET testimony
related tothe JDIMS list in an open session of ihis court-martial.
5. The court concludes thai ihe need toprotect from disclosure ihe SECRET information
contained in ihe JDIMS list, and ihe dassifted testimony related thereto, outweighs any danger of
amiscarriage of justice thai could attend ihe taking of that limited testimony in closed sessions of
this courtmartial,particularly when ihe accused has noi objected tothe closed sessions.
6 The testimony ofboth witnesses can be bifurcated between classified testimony and
unclassifted iestimony,ihe latter including biographical and professional background
information, ihe unclassifted factual basis for ihe classifted iesiimony,and an unclassifted
general summary of ihe classified testimony conceming ihc JDIMS list.
7. The bifurcating of testimony between undassified and dassifted information properly and
narrowly limits ihe dosed session to only ihe dassifted portions of testimony and tothe limited
unclassified supporting information thai is necessaryto preserve ihe coherence of testimony
during the dosed session. However, io present ihe evidence in ihe manner most conducive tothe
court members understanding ii, itwill be necessary tohave one closed session for each witness,
with several other witnesses testifying in open session during ihe period between closed sessions.
8. The court considered altematives to receiving classified iesiimony,including use of classifted
affidavits, unclassifted summaries of testimony or unclassifted testimony regarding ihe JDIMS
list. Adassifted affidavit regarding JDMIS would noi allow ihc court members io seek
clarification of ihe technical matters being raised about the database. Even if classifted affidavits
could be iniiidly used, undue dday in proceedings io seek additional affidavits would be
required for any clarification. Use of affidavits would noi permit the accused an opportunityto
crossexaminc ihe afftanis or iopreseniaworking demonstration of ihe JDIMS database.
Unclassifted testimony or undassified summaries would noi adequately provide ihe court wiih
the requisite level of detail needed to accuratdy assess ihe nature and status of ihe JDIMS list,
which is ai issue in all charges. Asaresult, ihe alternatives toclassified testimony are
inadequate even when compared to receipt of testimony in closed proceedings.
9. In bifurcating dassified from unclassified iesiimony,ihe court seeks toprovide ihe maximum
public accessto these proceedings consistent wiih national securiiy. Additional protective
rneasures^hortofclosure,^i11pern:uiiheiniroduction^nduseofclassified^o
evidence relating tothe testimony of the witnesses during open sessions of ihe court, and will
further limit ihe need for, and ihe duration of, dosed sessions.

.INCLASSIREO

XS'B^f
APWNDEOPAGE.

34743

^^^^^^^^^^0 ^
Ruling.
1. It is hereby ORDERED thai the classified testimony ofMr. Rosier and Mr. I^aies
regarding ihe JDMIS list, and only so much oftheirundassified testimony as is
necessaryto preserve ihe coherence of iheir classified icsiimony,sha11 be taken in
separate closed sessions, one for ihe examination of each witness. These closed sessions
wift be held during ihe govemmcni'scasein-chicf and will include direct and crossexamination.
2. The defense shall notify ihe court pursuantto M.R.E.505 of any intentionto introduce
any classified information during ihe defense caseinchiefwhich might necessitate
additional dosed sessions.
3. Open and closed sessions of this court will be conducted in accordance wiih ihe further
requirements of ihe Couri Room Protective Order of this court, issued separately ihis
date.
Entered ihisllth day ofMay 2007

Daniel E. O'Toole
Captain, JAG Corps, U.S. Navy
Chcuii Mihtary Judge

SBIFBED

APmimExmuzm
APPENDED PAGE

Unmarked redactions were present when Army received this document
34744

UNITED STATESOF AMERICA
V.

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

GovernmentTargeted Brief
on Courtroom Closures
Enclosure2
29March2013

E,irvc> 1

-to

APPELLATE E X H l B l T i J i
PAGE REFERENCED:____
PAGE
0 F _ PAGES

34745

1

MJ:

Do you understand

t h a t even though you b e l i e v e you are

2

g u i l t y , you have the l e g a l and moral r i g h t t o plead not g u i l t y and t o

3

place upon the government the burden of proving your g u i l t beyond a

4

reasonable

doubt?

5

ACC:

Yes, s i r , I understand

that.

6

MJ:

Lieutenant Colonel Steele, take a moment now and consult

7

again w i t h your defense counsel and then t e l l me whether you s t i l l

8

want t o plead g u i l t y .

9

[Accused

10

ACC:

11
12

complied.]
Yes, Your Honor, I s t i l l want t o plead g u i l t y t o the

three charges I p l e d g u i l t y t o .
Lieutenant Colonel Steele, I f i n d t h a t your plea of

MJ:

13

g u i l t y i s made v o l u n t a r i l y and w i t h f u l l knowledge of i t s meaning and

14

effect.

15

consciously waived your r i g h t s against s e l f - i n c r i m i n a t i o n , t o a t r i a l

16

of the f a c t s by a c o u r t - m a r t i a l and t o be confronted by the witnesses

17

against you.

"T8

accepted.

I f u r t h e r f i n d t h a t you have knowingly, i n t e l l i g e n t l y , and

Accordingly, your plea of g u i l t y i s provident and i s

However, I advise you t h a t you may request "to withdraw

19

your g u i l t y plea at any time before the sentence i s announced, and i f

20

you have a good reason f o r your request, I w i l l grant i t .

244

34746

1

T r i a l counsel, i s t h e government going forward on any o f the

2

charges or s p e c i f i c a t i o n s t o which the accused pled not g u i l t y or the

3

e:^cepted language?

4

ATC2:

l^ot t h e excepted language, Your Honor, however, a l l other

5

charges t h a t were net dismissed p r i o r t o r e f e r r a l , we are going

6

forward.

7

MJ:

8

So a l l the remaining charges and s p e c i f i c a t i o n s but not

t h e excepted language?

Okay, thank you.

ATC2:

Yes, s i r .

10

MJ:

I n t h a t case, 1 w i l l not enter f i n d i n g s a t t h i s time.

11

The t r i a l i s set f o r 0^00 hours on 15 October,

9

There w i l l be an

12

A r t i c l e 3^(a^ session t o l i t i g a t e motions and issues concerning

13

M i l i t a r y ^ u l e o f evidence 505 and M i l i t a r y ^ u l e o f 5^vidence 50^ on 12

14

October at 0^00 hours.

15
16

Counsel, are there any issues t o address before the court
recesses?

17

ATC2:

^o, s i r .

18

OC:

^o, s i r .

19

MJ:

The court i s i n recess.

20
21

^

^

^The A r t i c l e 3^(a^ session recessed a t 1^2^, 7 October 2007.]
O^^A^^.l

245

^^^^^

34747

1

[An A r t i c l e 39(a) session was c a l l e d t o order a t 0908, 12 October

2

2007.]

3

MJ:

This A r t i c l e 39(a) session i s c a l l e d t o order. A l l

4

p a r t i e s present on 7 October 2007 are again present and no a d d i t i o n a l

5

p a r t i e s are present today.

6

Now counsel, I j u s t want t o check, I had thought t h a t a t p r i o r

7

A r t i c l e 39 (a)s before October 7th there might have been s e c u r i t y

8

o f f i c e r s f o r each side, i s t h a t c o r r e c t ?

9

a s e c u r i t y o f f i c e r appointed on your side?

10

ATC2:

T r i a l counsel, do you have

Yes, s i r , and j u s t f o r c l a r i f i c a t i o n f o r the record,

11

Captain I n u r e l l Chester f o r the government i s t h e court s e c u r i t y

12

o f f i c e r and Major Dennis Daniels, the defense

13

MJ:

And t h a t ' s e x a c t l y why I was asking.

14

ATC2:

I t ' s t h e only change t h a t ' s occurred since 7 October,

15
16

s i r , i n terms o f accounting f o r the p a r t i e s .
MJ:

And they're behind the bar, t h a t ' s why I'm asking t o see

17

i f they are here.

18

present and t h e two a d d i t i o n s are Captain CTiester and Mag or Daniels

19

are both present i n the courtroom.

20

So, a l l p a r t i e s present on 7 October are again

P r i o r t o coming i n t o the courtroom today, I conducted an R.C.M.

21

802 conference, present were the seven counsel and myself, and we

22

discussed marking o f t h e documents, which was kind o f p a i n f u l , how
246

34748

1

those were going t o be marked, but I t h i n k we worked through a system

2

where we can get them marked a p p r o p r i a t e l y ,

3

as we go along today.

4
5

and w e ' l l f i n d that out

Do counsel f o r e i t h e r side have any o b j e c t i o n s ,

c o r r e c t i o n s or

a d d i t i o n s t o my c h a r a c t e r i s a t i o n o f t h e R.C.M. 502 conference?

6

ATCl:

No, Your Honor.

7

DC:

No, s i r .

8

MJ:

And also during the R.C.M. 802 conference, counsel l e t me

9

know t h a t t h e witnesses f o r an A r t i c l e 13 motion weren't going t o be

10

ready u n t i l t h e a f t e r n o o n . So what we're going t o do i s we're going

11

t o handle t h e ^r^n^en hearing f i r s t and then w e ' l l deal w i t h the two

12

motions t h a t are s t i l l pending, those are a motion t o dismiss, w e ' l l

13

do t h a t f i r s t as f a r as t h e motions, and then t h e A r t i c l e 13 motion

14

w e ' l l do second.

1^

Also, t h e defense hasn't had an o p p o r t u n i t y

t o compare a

16

redacted version o f some documents t h a t they were i n t e n d i n g t o o f f e r

17

w i t h t h e unredacted version
were wanting i^o o f f e r .

t o see what impact t h a t has on what they

They're going t o need t h a t when we l i t i g a t e

19

t h a t p a r t of t h e i^i:-t^nc^en hearing.

So, I a n t i c i p a t e t h a t a f t e r we get

20

s t a r t e d i n a l i t t l e w h i l e , I'm going t o have t o give a decent

21

recess f o r t h e defense counsel t o accomplish t h a t before we move on.

22

^ u t what I want t o do i s we're going t o get s t a r t e d w i t h the ^run^en
247

length

34749

1

hearing so I'm going t o close the court based on the motion by the

2

p a r t i e s f o r t h i s ^^unc^er^ hearing i s the reason f o r the court t o be

3

closed.

4

i n t o a closed session and then the only ones t h a t w i l l be present

5

w i l l t^e the seven counsel, the three court s e c u r i t y o f f i c e r s , the

6

court r e p o r t e r and myself.

7

other person i n t h e courtroom r i g h t now t h a t t h a t a f f e c t s and then

8

she's going t o have t o leave the courtroom.

9

do i s take a b r i e f recess t o accomplish

10

So what we're going t o do i s we're going t o change and go

And j u s t f o r tbe record, there's only one

So what we're going t o

that.

The c o u r t i s i n recess.

11

[Court recessed a t 0^12, 12 October 2007.]

12

[Tbe ne^t session i s a closed session which contains pages 2^9

13

through 312 and i s contained i n the o r i g i n a l record o f t r i a l , only.

14

The next numbered page of the u n c l a s s i f i e d p o r t i o n o f t h i s record of

15

t r i a l i s page 313.^

1^

^^^^ 0^

248

34750

1

(1^^ [An A r - t i c l e 39(9) session was c a l l e d t o oi^der at 0912, 12 October

2

2007.]

3

(1^) ^ J :

Court i s called t o order. A l l parties present before

4

tbe co^rt recessed are again present. And just f o r tbe record, tbe

5

court i s closed now. The only parties present are the parties I

6

mentioned a l i t t l e while ago.

^

(^) And during tbe recess, tbe t r i a l counsel stated tbat tbe

8

b a i l i f f bad a proper security clearance,^ i f I wanted ber i n the

9

courtroom.

10
11

1 j u s t fo^nd tbat sbe wasn't necessary so she's not i n

tbe coi^^r^tr^oom.
(^) Okay, counsel, so what we're going t o do i s t o conduct a

12

bearing under M i l i t a r y Rule of evidence 505. There^s a couple

13

reasons why a bearing i s conducted under M i l i t a r y Rule of evidence

14

505, ^ow, I badn^t mentioned when we were conducting tbe R.C.M. ^02

15

conference, 1 did also ask tbe t r i a l counsel i f tbey were opposing

16

tbe defense's o f f e r , tbe evidence that tbe defense intended to offer

17

as f a r as relevance or f o r any otbei:: reason, or i f they were just

^^T^^

wanting tbe court t o be closed wben the def^ense^^o^:fered tbat

19

evidence.

And the t r i a l counsel stated tbat tbey weren^t opposing

20

tbat tbe defense could offer tbat evidence but tbey just wanted tbe

21

court t o be closed during those portions of tbe court-martial,

249

^ell,

34751

1

1 mentioned t o tbem, 1 said, ^ ^ ^ e l l , perhaps w i t b tbe exception o f tbe

2

evidence t b a f ^ s been redacted, i f tbey could use t b e redacted ver-sion

3

versus an unredacted version, and t b a f ^ s a way i n wbicb tbe coui:^t

4

would not bave t o close as o f t e n and ensure a p u b l i c t r i a l f o r a

5

g r e a t e r p o r t i o n o f the t r i a l , which would be i n tbe i n t e r e s t o f

6

justice.

7

defense time t o review tbe redacted version and see i f t b a t

8

accomplishes what they want, or a t l e a s t i n most p a r t .

^

So, 1 already mentioned t b a t we're going t o give tbe

(0) But anyhow, so what we're going t o go do i s we're j u s t going

10

t o go i n t o see i f there i s s u f f i c i e n t reason t o close tbe court

11

dui:^ing p o r t i o n s o f the c o u r t - m a r t i a l .

12

handle i t , and we've s t a r t e d wben 1 t a l k e d w i t b counsel t o t a l k about

13

i t ^ i s round one, round two and round three, i s tbe c l a s s i f i e d

14

information

15

rounds.

16

^ ^ I , and i t contains 20 d i f f e r e n t documents, 11 t b a t went up t o one

17

o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y and nine t h a t went up t o a

18

different original classification authority.

19

r e l a t i v e l y e a r l y i n the c o u r t - m a r t i a l process.

20
21

And tbe way I'^m going t o

t b a t was processed went up i n about three d i f f e r e n t

The f i r s t

round has already been marked as Appellate

^xhil:^it

And t b a t was processed
And t h a t ' s round one.

(^^ Round two consisted o f e x h i b i t s t h a t we're going t o t a l k
about at a l a t e r time, but i t was copies o f documents t h a t tbe

250

34752

1

defense wanted t o use and also some documents that the government

2

wanted t o use, and that was contained i n three d i f f e r e n t binders tbat

3

we w i l l address l a t e r .

4

recently t o the Commander of the Multi-National Force, Iraq; I think

5

i t went up on € October, and that's a smaller round, but that's round

6

three.

7

t o handle round one and then we're going t o have t o take a recess

8

before we cover round two.

9

And then three i s evidence that went up

And so, what we're going t o do r i g h t now i s we're j u s t going

(U) What I ' l l do i s I have reviewed a l l of the documents that

10

are contained w i t h i n Appellate Exhibit XXI. And counsel, do you have

11

any evidence t o present on t h i s issue, t r i a l counsel?

12

(U) ATCl:

No, Your Honor.

13

(U) MJ:

Defense counsel?

14

(U) DC:

No, s i r .

15

(U) MJ:

I'll

16
17
ILZ

a l l o w you t o argue t h e n .

T r i a l c o u n s e l , go

ahead.
(U) ATCl:

Yes, Your Honor.

^ T07 Tbe^t^andardninder T4 .TTTIE

tisnat—

19

security nature, requires that the a f f i d a v i t demonstrates the

20

disclosure of the information reasonably could be expected t o cause

21

damage t o the national security and the degree caused required to

251

34753

1

warrant c l a s s i f i c a t i o n under the applicable executive order or statue

2

or regulation.

^

e x h i b i t XXI, the a f f i d a v i t s completed by Ounnery Sergeant and Captain

4

Oawlick demonstrate that.

5

memos that are also contained i n that e x h i b i t . Appellate exhibit XXI.

6

So Your Honor, we ask tbat we close the courtroom f o r tbat portion of

7

tbe t r i a l related to those documents.

8

o f f e r two witnesses, gunnery Sergeant ^halen and Captain i^awlick, wbo

9

are going to discuss those documents.

I n both tbe 11 and 9 documents contained i n Appellate

And again, t h i s was r a t i f i e d i n tbe OCA

Tbe government intends to

And while they're discussing

10

those documents—not here today, s i r , but at t r i a l .

11

they're discussing those documents, we ask that you close the

12

courtroom t o the public. Your Honor.

And while

Thank you.

13

(^) MJ:

Defense counsel, you may argue.

14

(^) DC^

Yes, s i r . S i r , with regards to these documents and

15

the showing tbat the government has made i n terms of closing tbe

16

courtroom f o r testimony witb regards to tbese documents or the

17

presentation of tbese documents, defense does not object to tbe

^18

cTosi^^^^^tbe courtroom regarding tbese documents, ^oweve^^^ we do

19

reserve tbe r i g h t to object t o foundational objections or otber

20

objections of that nature with regards to putting tbese things i n t o

21

evidence or the testimony that would be e l i c i t e d .

252

34754

1

(^) MJ:

Sure, a b s o l u t e l y .

I mean, t h a t ' s a good p o i n t .

2

Obviously, t h e c o u r t ' s not going t o admit any o f these documents.

3

^e're j u s t determining whether or not we're going t o receive t h i s

4

evidence i n a closed session, t h a t ' s a l l .

5

(^) OC:

Yes, s i r . So, t b e defense has no o b j e c t i o n s t o

6

r e c e i v i n g t b e i n f o r m a t i o n o f t h i s nature r e l a t e d t o tbese documents

7

i n a closed session.

^

(^) MJ:

9

(^^ Okay, I'm going t o address t b e documents contained i n

Okay.

[Rause.]

10

A p p e l l a t e e x h i b i t XXI.

11

f e l l w i t h i n the purview o f t h e Commander o f M u l t i - N a t i o n a l Force,

12

Iraq.

13

Cropper, and i t ' s dated 15 March 200^.

14

a f u l l ORLAN w i t h t b e s i t u a t i o n , mission, execution, service support

15

and command and s i g n a l w i t h annexes t h a t inolude photographs and

16

diagrams o f t h e camp.

17

some are marked ^^unclassified".

18
19
20

F i r s t o f a l l , there are 11 documents t b a t

The f i r s t document i s OPLAN 0^01, i s a defense plan f o r Camp
I t i s marked ^^secret".

It's

Most i n t e r n a l p o r t i o n s are marked ^^secret" and

(U) second i s a chemical response assessment f o r Fort^^^use, is^"
tbat i t ?
(0) ATC2:

Yes, s i r .

253

34755

1

(^) MJ:

Suse i s how tbey pronounce i t ? Okay...dated 9 May

2

200^.

3

theater internment f a c i l i t y ' s a b i l i t y to respond to a chemical

4

attack.

5

recommendations f o r future C5RN defense for tbat f a c i l i t y .

6

I t ' s marked ^^secret".

Tbis five-page document depicts a

I t includes the status of detection assets and

(1^) Third, there i s an info b r i e f for the Commander of ^th

7

Infantry d i v i s i o n concerning Camp Croppers i t ' s dated 6 A p r i l

8

I t ' s marked ^^secret".

9

mission, commander's intent, organisation, equipment and f a c i l i t i e s

10
11

200^.

These 22 RowerRoint slides show the unit's

and bas two detailed diagrams.
(^) Foi.irth i s the Charlie lB1^2d FA guard force chart and two

12

photos.

13

document contains a chart witb a number of guards and two aerial

14

photos with captions.

I t ^ s undated; i t ^ s marked ^^secret".

15
16
17

254

This three-page

34756

11
12
13
14

(U) Eighth, a troop t o task info b r i e f , i t ' s undated; i t ' s

15

marked "secret".

16

diagrams showing the s t a f f i n g , s h i f t s , and layout f o r an internment

17

facility.

TE

This document contains slides with charts and

TU) Ninth, an update b r i e f i n g t o the Commander of the 43d WP

19

Brigade on the movement of HVC number 1. I t i s undated; i t ' s marked

20

"secret".

Tbese 40 RowerPoint slides show the mission and methods of

34757

1

movement with the routes, alternate routes, maps and force

2

protection.

I t also contains slides on v i s i t o r issues.

3
4
5
6
7
8
9

(^) Eleventh, slides witb pictures and i d e n t i t i e s of detainees
witb c l a s s i f i c a t i o n of "other," dated 27 June 200^.

I t ' s marked

10

^^secret'^.

11

disposition from adjudication f o r other detainees separated by

12

category.

13

c l a s s i f i e d as secret by the proper o r i g i n a l c l a s s i f i c a t i o n authority,

14

which i s tbe Commander of the Multi-National Force, Iraq, wbicb i s

15

currently Ceneral Retreaus.

16

executive Order 12958, as amended most recently on 25 March 2003,

17

s p e c i f i c a l l y sections 1.4 Alpha, 1.4 Charlie and 1.4 Oolf.

I t has pictures, i d e n t i t i e s , ID numbers and i n some cases,

I f i n d tbat these eleven documents have been properly

i t also has been done i n accordance witb

(^ Next, I want t o go i n t o tbe documents tbat f e l l witbitT^he

^

19

purview of united States Army Central.

20

b r i e f from Major Ceneral Dunlavey, dated 31 March 2002, marked

21

"secret".

F i r s t , tbere i s an executive

These PowerPoint slides focus on detainee operations i n

256

34758

1

Afghanistan with the concept of tbe operations, photographs,

2

diagrams, operational issues, and lessons learned.

3
4
5
6
7
8
^

(^) Second, "Detainee Movement Plan," undated, marked "secret".
Tbis one-page document contains a map and f l i g h t schedules.
(0) Third, more of a detainee movement plan, undated, marked
"secret". This one-page document contains a map and times.
(0) Fourth, an email dated 8 February 2002, marked "secret".
This email discusses release of a named detainee.
(U) F i f t h , Al-^aeda and Taliban Leadership, undated, marked

10

^^s^cret".

ii

^aeda and Taliban with pictures, i d e n t i t i e s and most current status.

12

Tbis two-page dooum^nt shows leadership struot^re of A l -

(^) Sixth, Southwest Asia Air- Defense A r t i l l e r y update, dated 4

13

A p r i l 2002, marked "secret". These PowerPoint slides contain

14

information on tbe thi^eat and f r i e n d l y c a p a b i l i t i e s , incli^ding

15

problems w i t h — c o r r e c t i o n , including problems with recommendations

16

an^d missile inventory. I n t e r n a l l y , most portions are marked "secret"

17

witb some marked as "unclassified".

18

((1) seventh, email^dated 21 May 2 i ^ ^ marked "secret". This

19

email contains tbe number of detainees as reported by tbe National

20

Detainee Records Center i n tbe Pentagon.

257

34759

1

(0) Eighth, detainee report, dated 19 May 2002, marked "secret".

2

This document l i s t s ten detainees by ISN witb location, f u l l name,

3

n a t i o n a l i t y , date of b i r t h , gender, physical condition and

4

information about t b e i r capture.

5

(0) And ninth, slides on Coalition, dated 7 February 2007,

6

marked "secret".

These PowerPoint slides with comments show and

7

discuss tbe support tbat Coalition countries are providing.

8

that these documents have been properly c l a s s i f i e d as "secret" by the

9

proper o r i g i n a l c l a s s i f i c a t i o n authority, which i s the Commander of

I find

10

the Onited States Army Central, which i s currently Lieutenant Ceneral

11

^bitcomb.

12

Execiitive Order 12958, as amended most recently on 25 March 2003,

13

s p e c i f i c a l l y sections 1.^ Alpha, 1.4 8ravo, 1.4 Charlie, 1.4 l^elta^

14

and 1.4 Coif.

And I f i n d tbat t h i s bas been done i n accordance with

(^) From a l l the evidence, I am s a t i s f i e d that there i s a

1^
16

reasonable danger that presentation of these 20 documents before the

17

public w i l l expose m i l i t a r y matters that, i n the interest of national

18

security, should not bedivulged.

19

court would increase the v u l n e r a b i l i t y of Camps Cropper and Suse. I t

20

would decrease tbe effectiveness of current m i l i t a r y operations i n

21

Iraq.

Specifically, disclosure inopen

I t would increase the v u l n e r a b i l i t y of Coalition Forces

258

34760

1

against chemical a t t a c k .

2

t h e u n i t e d States has w i t h f r i e n d l y and C o a l i t i o n Forces.

3

endanger t h e l i v e s and s a f e t y o f C o a l i t i o n Forces and i t w i l l

4

decrease t h e e f f e c t i v e n e s s o f i n t e l l i g e n c e c o l l e c t i o n d u r i n g t b e

5

c u r r e n t operations.

6

I t w i l l jeopardise t h e r e l a t i o n s h i p t h a t
I t will

(^) Counsel, t b e next p a r t i s j u s t t o discuss how t b a t

7

i n f o r m a t i o n i s going t o be d i s c l o s e d i n c o u r t .

And what I'm w i l l i n g

8

t o do i s we can t a l k about t h e i n f o r m a t i o n f i r s t and a l l t b e

9

d i f f e r e n t rounds, and then we can go by witnesses i f witnesses are

10

going t o discuss i n f o r m a t i o n i n m u l t i p l e rounds.

11

and t h i s evidence i s j u s t going t o come out through a s p e c i f i c

12

witness o r j u s t i n documentary form, then we can discuss t h a t now.

13

Trial

14

Or, i f i t ' s easy

counsel?
(^) ATCl:

S i r , f o r those documents t h a t you've j u s t discussed,

15

f o r t h e MNF-I documents, the government intends t o c a l l Captain

16

Cawlick t o o f f e r testimony as t o how those documents r e l a t e t o t h e

17

n a t i o n a l defense and how they could be used t o t h e i n j u r y o f the

1^

u n i t e d States o r to^be^advantage

19

o f t b e 1 8 ^ S C 7 9 3 F c h o charge.

20

p o i n t i s t b a t Captain Cawlick w i l l t e s t i f y as t o the s p e c i f i c s o f

21

those documents as i t r e l a t e s t o those two elements o f t b a t offense.

o f a ^ o ^ i g n Ti^ation ai^ an elements
So, p r o b a b l y w b a t w e expect a t t h i s

259

34761

1

Tbe same thing f o r Cunnery Sergeant ^halen, Your Honor, we intend t o

2

c a l l bim and t o o f f e r similar testimony^ bow tbey relate t o tbe

3

national defense and how tbey could be used t o tbe i n j u r y of tbe

4

Ignited States.

5

(^) MJ:

6

Now f o r those two witnesses, i s that the only thing

that they're going t o t a l k about?

7

(^) ATCl:

8

on one otber thing.

^
10
11

1^

(0) MJ:

Sure.

(^) ATCl:

^ e ' l l argue that i n closing, as well, so i t w i l l come

(0^^ MJ:

Okay, so i n closing, you^re going t o t a l k about the

actual contents of eacb of tbese documents, okay.

1^ ^
15

And Your Honor, i f I may just add

out i n tbe closing argument, as well.

12
13

Yes, Your Honor.

(^) T r i a l counsel, any other witnesses going t o t a l k about these

documents, foundational witnesses?
(^) ATCl:

Yes, Your Honor.

And there's r e a l l y one of two ways

17

we could do that f o r the foundational witnesses,

^e could put a

18

"secret" cover on the documents t o show tbem or t o bave them look at

19

that on tbe stand without revealing i t t o anybody who happens t o be

20

i n the court and then t e s t i f y that, "Yes, I fotind t h i s particular

34762

1

document on t b i s p a r t i c u l a r CD," or " I found t h i s p a r t i c u l a r document

2

in

"
(^) MJ:

So they're going to authenticate i t as a document

4

that they found somewhere, b^t t b e y ^ r e n o t going to t a l k aboutthe

5

content.

6

(^) ATCl:

The substance of what's i n tbe document, roger, s i r .

7

(^) MJ:

So you're not asking t o close any portion of those

8
9^

foundational witnesses' testimony, are you?
(1^) ATC2: ^e don't think i t ^ s necessary. Your Honor, but i f yoi.i

10

don't want us t o put a "secret" cover on tbat and give i t t o tbe

11

witness l i k e that, we can

12

(^^ MJ:

There's no problem having a "secret" cover on there.

13

I f i t ' s supposed to bave a "secret" cover, then i t can have a

14

"secret" cover.

15

t o go i n t o the contents of i t so there's no need to close any portion

16

of that foundational witness' testimony. 8ut these other two

17

witnesses tbat that's a l l they're going t o t a l k about and these

18

documents are a l l "secret," defense counseT, do you want t o be heard

19

on tbat as f a r as whether or not these documents are going to be

20

addressed by any otber witnesses?

No, I understand, i t appears to be no need for you

34763

1

(^) OC:

Sir, as f a r as we can see r i g h t now, none of tbe

2

defense witnesses are going to address the contents of those

3

documents.

4

(^^ MJ:

A l l r i g h t , well based on tbat, f o r the two witnesses

5

tbat are going t o t a l k about the impact of these, t h e i r only

6

testimony i s going to be about these documents.

7

t a l k about 11 documents and the otber w i l l t a l k about 9 documents.

8

That's going t o be the only testimony tbat those witnesses provide.

9

I don't see any way i n which any of t h e i r substantive testimony can

Apparently, one w i l l

10

be conducted i n open court based on the nature.

11

f u l l y read a l l those documents and i t just can't be discussed i n open

12

court witbout r i s k i n g national security.

13

do because I'm balancing the r i g h t t o a public t r i a l with tbe

14

i n t e r e s t of national security, i s even i f a witness i s going to

15

t e s t i f y only aboiit c l a s s i f i e d information, that's a l l tbe substantive

16

information, t o tbe public, i t i s i n t h e i r interest for a public

17

t r i a l tbat tbey at least know who i s i n here t e s t i f y i n g .

18

i t may be a l o g i s t i c a l pain f o r certain people, but what I do want t o

19

do i s when tbat witness i s called^ tbe court w i l l be open.

20

witness w i l l come i n . Tbe witness w i l l take tbe oath.

21

w i l l state the name, u n i t , etcetera, do any foundational reqtiirements

I t has been clear, I

However, what I do want t o

So although

So the

The witness

34764

1

as f a r as wbo t h i s person i s . And tben once tbe t r i a l counsel i s

2

g e t t i n g i n t o the documents, at that point, you can close...you can

3

ask that the court be closed at tbat point.

4

(H) T r i a l counsel, are you tracking where I'm going?

5

(0) ATCl:

Yes, Your Honor.

6

(tl) MJ:

I see that as i t ' s d i f f e r e n t than i f tbe members of

7

tbe public can't even see who's being brought i n here, i t looks l i k e

8

a secret star chamber i n here and that's not what we want, ^e want

9

the public t o be able t o view everything that tbey can view, and I

10

think that accomplishes that f o r those witnesses.

11

other witness, I see no need t o close any portion of the foundational

12

witnesses' testimony based on what we know r i g h t now.

13

that testimony w i l l be conducted i n closed court.

H^^^

(0) ATCl:

Sir, i f I may?

1^

(i^) MJ:

2ure.

16

263

As far as the

So, none of

34765

1
2
3
4
5

(0) MJ:

Are they going to t a l k about other matters, too, or

j u s t tbese documents?
(U) ATCl:

Lieutenant Evans, just the document, Ceneral Cardner

may get into other material, as well.
(0) MJ:

Let me ask you about Lieutenant Evans' testimony,

6

^hen he t e s t i f i e s , everyone realises that the finder of fact has read

7

the documents.

8

or i s be going t o t a l k about the impact? And i f he's t a l k i n g about

9

the impact, w i l l i t be getting into c l a s s i f i e d information or w i l l he

I s he going t o discuss the contents of the documents

10

necessarily bave to disclose?

11

don't know what his testimony i s going to be, but I would envision

12

that be could t a l k abo:^t impact without disclosing any c l a s s i f i e d

13

information,

14

^hicb do you think i t is?

15
16
17

I mean, tbere^s two p o s s i b i l i t i e s ; I

^ut I also could see a s i t u a t i o n where he couldn't,

34766

1

(^) MJ:

So be actually w i l l be getting into c l a s s i f i e d

2

information.

3

(1^^ ATCl:

Yes, Your Honor.

4

(0) MJ:

A l l right.

5

And i s tbat what's going t o be his...his

testimony i s going t o be about s i t e assessment and vulnerabilities?

^

(^) ATCl:

Yes, Your Honor.

7

(^) MJ:

Okay, I'm inclined to close a l l that.

I mean,

8

knowing exactly what's i n the documents and the r i s k involved,

9

defense counsel, I'm intending t o close tbat portion of his

10
Tl

testimony.

Do you want t o be heard on that?

(^) DC:

No, s i r , we don't bave an objection t o those portions

12

of Lieutenant Evans' testimony being closed,

13

i f the complete testimony of Ceneral Cardner were closed because we

14

believe tbat he's going to be t e s t i f y i n g about various different

15

matters.

16

(^) MJ:

^e would have objection

Absolutely, no, I haven't touched that yet because I

17

don't envision closing a l l his testimony and I think that would be

18

very u n l i k e l y .

19

(^^ I f i n d that based on the proffer by the t r i a l counsel, a l l

20

the substantive evidence by Lieutenant Evans about impact of

21

disclosure on s i t e assessment and v u l n e r a b i l i t i e s must be held i n

265

34767

1

closed court becatise i t poses a serious r i s k to national security

2

otherwise.

3

same way as with tbe other witnesses I talked about whose testimony

4

was a l l about c l a s s i f i e d testimony.

5

i n i t i a l questions i n open court and then only when you're ready t o

6

get i n t o the substance of his testimony w i l l we close the court.

7

For him, f o r Lieutenant Evans, obviously we handle i t the

(t^) ATCl:

He'll s t i l l come i n , do the

S i r , i f I may j u s t jump i n there.

Lieutenant Evans,

8

h i s duty position and his existence within the Army may i t s e l f be

9

c l a s s i f i e d , ^e're t r y i n g t o run tbat t o ground.

10

(^) MJ:

Okay.

11

(^) ATCl:

He would be the one witness where that would probably

12

be an exception t o t h e — I understand what you^re saying. Your Honor,

13

where the witness comes i n

1^
15

(^) MJ:

I understand.

I understand di.ity position.

So you'^re

saying even his existence w i t h i n the Navy?

li^

(J) ATCl:

^ e l l , the fact that he

17

(^) MJ:

You're saying even his existence that he's i n the

^^8

Navy?

^

1^

(^) ATCl:

^e're going to have t o v e r i f y that, Your Honor.

20

(^^ MJ:

Yes, okay, w^ can address that l a t e r .

21

(^) Do you want to be heard on that, defense counsel?

34768

1

(1^) DC:

Yes, s i r , h i s name and p o s i t i o n were o n — o r not duty

2

p o s i t i o n , but a t l e a s t h i s name was on a l l t h e witness l i s t s t h a t

3

were u n c l a s s i f i e d , so I don't t h i n k h i s i d e n t i t y ^ i t s e l f , i s a

4

c l a s s i f i e d matter.

5

I t h i n k be can a t l e a s t come i n and be i d e n t i f i e d as a witness and we

6

can j u s t close i t as t o t h o s ^ d u t i e s t h a t would be considered o f a

7

c l a s s i f i e d nature.

8

(^) MJ:

9

Maybe t h e nature o f h i s work and what be does, so

l^nless you come back w i t b f u r t h e r argument on

why...and I understand t b a t t b e r e might be an argument why acti.ially

10

h i s name might be removed from c e r t a i n l i s t s f o r a t o u r o f assignment

11

and perhaps there's an argument there b u t I don't have i t i n f r o n t o f

12

me.

13

c u r r e n t assignments d u t i e s ^ t h a t may be c l a s s i f i e d .

14

o f t e n t i m e s you might ask a person t h e i r name and then next ask t h e

15

u n i t o f assignment and then go i n t o t h e i r background, but t h i s

16

witness, what you could do, i s ask h i s name.

17

d i f f e r e n t r u l i n g based on f u r t h e r argument from you, g e t h i s name,

^T8

And I agree w i t h defense counsel, i s i n t h a t case, perhaps h i s
So, where

unless I get a

perhaps bow long be's^^een i n tbe Navy and maybe some o f t h i s

19

background.

Don't ask b i s c u r r e n t duty assignment u n t i l you get t b a t

20

f o u n d a t i o n a l p a r t done.

And then ask f o r t h e court t o be closed, and

2^7

34769

1

tben you can get out bis current assignment a f t e r the court's closed

2

and then go on from tbere.

^

(1.1) Do you understand, t r i a l counsel?

4

(0) ATCl:

Yes, Your Honor.

5

(0) MJ:

That's m^y r u l i n g as f a r as r i g h t now. I'm open to

6

reconsider i f you come back with an argument tbat j u s t his name and

7

the fact that he's i n tbe Navy r i g h t now i s a c l a s s i f i e d matter,

8

you're going t o have t o convince me of that beforehand, otherwise my

9

r u l i n g stands as I just stated, okay?

10

(^) Now, as f a r as Lieutenant Central Cardner, t r i a l counsel,

11

what portions...correction, what subject matters i s he going to

12

cover?

13

f i r s t of a l l , I don't think you asked f o r Lieutenant Ceneral

14

Cardner's t o t a l testimony t o be closed, i s that right?

I s be going t o cover various sentencing information? ^ e l l ,

1^

(1^) ATCl: No, Your Honors i t would be l i m i t e d i n scope.

1i^

(1^) MJ:

A l l r i g h t , now, f o r the part where he's talking about

17

any of these documents, i s he going t o have t o get into tbe contents

18

of tbe documents l i k e Lieutenant Evans w i l l have to?

19
20
^

21

34770

1
2
3

^ ^ ^ ^ ^ ^ ^ ^ ^
(^) MJ:

A l l r i g h t , I see. So he's not j u s t t a l k i n g about i n

4

any h y p o t h e t i c a l s i t u a t i o n , "o^hen you d i s c l o s e t h i s type o f

5

informations t h i s i s t b e r i s k , " he's going t o a c t u a l l y t a l k about i n

6

this specific

7

t o t a l k about the contents o f the documents, tbem^selves?

case, t h i s i s t h e impact t h a t i t had?

So, he's going

^

(0) ATCl:

Yes, Your Honor.

^

(^^ MJ:

So, defense counsel, j u s t t o expedite matters, I'm

10

i n c l i r t e d t o close t h e p o r t i o n s when he's t a l k i n g about these 20

11

documents s p e c i f i c a l l y , what was i n tbem and tben t h e s p e c i f i c impact

12

from those.

1^

Do you want t o be beard on t h a t ?

(0) ADC:

No, s i r , I ' l l l i k e l y handle Ceneral Cardner's

14

testimony.

I agree w i t b your e a r l i e r comment about i f he's t a l k i n g

1^

impact.

1^

t h e v u l n e r a b i l i t i e s was damaging."

17

those documents, but I t h i n k i t would be f a i r l y l i m i t e d .

18

"Tbis one s l i d e , " you know, "This one p a r t i c u l a r . . . " but even t h a t , I

19

t h i n k he can say, "One of the s l i d e s

20

vulnerabilities."

^1

i n p u b l i c forum, l i m i t e d t o t h e very few f a c t s t h a t he might p o i n t t o

I t h i n k m^ch o f h i s testimony t o be, "This s o r t o f impact on
Maybe there's one or two facts i n
You know,

i n t h e r e t a l k s about

So I t h i n k as much as p o s s i b l e , we can bave that

269

34771

1

i n tbe documents.

I mean, I could see where tbe government might

2

point out one or two things, but tbe overall impact, I don't believe

3

that ^ould be c l a s s i f i e d .

4^

(i^^ MJ:

Okay, so....

5

(^) ADC:

Only wben be t i e s i t to a specific fact.

6

(1.1^ MJ:

Right, and I think what they're going to do i s ,

7

that's what I was t a l k i n g about e a r l i e r , i t sounds l i k e they're going

8

t o be t y i n g i t t o specific facts.

9

he's a l l done, and he might be covering more than tbe 20 documents, I

But what you're saying i s , when

10

don't k n o w i f he's t a l k i n g a b o u t a n y t h i n g e l s e .

Eutwhenhe'sall

11

done, he's ready to give an opinion, overall opinion, on what the

12

impact of those documents, disclostire of those documents were, tben

13

that could be done i n open court.

14

am wanting to chisel away at the closed portion of t h i s t r i a l as much

15

as possible.

16

then I'm going t o do that.

17

correct i n tbat the overall impact, i f you're going to a s k a guestion

18

about what the overall impact was either of these 20 documents, or i f

19

you're not doing i t j u s t f o r tbe 20 but i f he's t a l k i n g about other

20

things and he's going t o say tbe 20 documents plus "X," what's the

I'm open t o tbat.

Like I said, I

So i f I can chisel out a single question and answer,
And i t sounds l i k e the defense counsel i s

270

34772

1

overall impact, and you're going to summarise bis testimony tbat way

2

at the end, then that would be able to be accomplished i n open court.

^
4
5

(^) T r i a l counsel, do yo^ intend to do tbat?

Do you intend t o

give an overall impact based on
(^) ATCl:

Yes, Your Honor, i t probably w i l l be two portions.

6

I t would probably be an—I'm sorry, I shouldn't say ^^would," i t w i l l

7

be an o v e r a l l impact testimony but he w i l l also t e s t i f y about

8

specific v u l n e r a b i l i t i e s .

^
10

(^) MJ:

Sure.

(^) ATCl:

And I understand your r u l i n g . Your Honor, that f o r

11

the overall arching as i t doesn't r:elate to tbe d e t a i l s , tbat that

12

would be i n open court.

1^

(^) MJ:

Right.

1^

(i^) ATCl:

As i t relates to tbe specifics, details within those

15
1^

dociiments, i t would be closed.
(^) MJ:

Exactly.

Okay, that's the r u l i n g of the court,

^hen

17

i t ' s t a l k i n g about impact from disclosure of tbese specific documents

18

and he's t a l k i n g about what's i n tbe documents, tbat w i l l be

19

conducted i n closed court.

20

i n t e r e s t of national seciirity.

^^^^

I f i n d that i t ' s required f o r the
However, when be does give an overall

271

34773

1

opinion, what type of impact t h i s caused, tben tbat i s able to be

2

e l i c i t e d i n open court and that's how i t w i l l be e l i c i t e d .

3

(U) Okay, I think we've discussed these 20 documents

4

s u f f i c i e n t l y so I think counsel f o r both sides understand what can be

5

discussed i n open court, what can be discussed i n closed court.

6

counsel f o r either side have any questions on the court's ruling j u s t

7

f o r t h i s round?

Do

^

(1^) ATCl: No questions. Your Honor.

^

(^) DC:

No, s i r .

10

(0) MJ:

A l l r i g h t , now we're ready to move into round two.

11

And t o do tbat, as I mentioned e a r l i e r , that defense counsels you are

12

going t o have t o compare the redacted and unredacted volumes of the

13

evidence that you gave notice that you intended t o o f f e r .

14

think you understand the goal there i s , i f you're able to use

15

unredacted versions of emails or memos or l e t t e r s , then what happens,

16

i f that gets across the point you're t r y i n g to get across, tben we're

17

able t o accomplish that i n open court and that's the goal of the

18

court i s t o do that.

19

what I want t o do as much as possible i s t o conduct t h i s i n open

20

court.

And I

As long as we s t i l l bave a f a i r t r i a l , that's

34774

1

(^) So as you're going through, do that.

However, i f you find

2

p o r t i o n s t b a t have been r e d a c t e d t h a t ' s r e a l l y what you were wanting

3

t o get at with that document, just make a l i s t and we can focus i n on

4

those specific things and perhaps we can, f o r certainreasons, go

5

i n t o closed court f o r some of those and we might have some unredacted

6

documents that were within that bigger binder.

7

you i n on what I want you t o look at during tbe recess so that wben

8

we come back i n we can t a l k i n d e t a i l about that.

9
10

(^) I'm going t o take a recess.

I just want to focus

Defense counsel, do you think

30 minutes i s s u f f i c i e n t ?

11

(t^) DC:

[No verbal response.]

12

(0) MJ:

l^e're going t o plan on that now. I f you need more

13

time, then j u s t l e t me know before tbe 30 minutes i s up, does that

14

work?

15

(^^ OC:

Yes, s i r .

16

(^) MJ:

The court i s i n recess.

17

(^) [Tbe session recessed at 095^, 12 October 2007.]

18

(^) [Court reconvened at 1305^^12 October 2007.]

19

(^) MJ:

Court i s called t o order.

A l l parties present before

20

tbe court recessed are again present.

21

session discussing M i l i t a r y Rule of Evidence 505.

273

The court i s s t i l l i n a closed
And as I stated.

34775

1

a l l the p a r t i e s t h a t were present p r e v i o u s l y are again present; no

2

one e l s e i s present a t t b i s time.

3

(^) During the recess, I conducted an R.C.M. 802

conference.

4

Present were a l l seven counsel, a l l three s e c u r i t y o f f i c e r s and

5

myself,

6

redacted i n f o r m a t i o n they had submitted under M i l i t a r y Rule of

7

Evidence 505(b) w i t h the unredacted v e r s i o n .

8

marked as A p p e l l a t e E x h i b i t s XXXand XXXI; XXX i s unredacted, XXXI i s

9

redacted.

^e discussed tbe defense counsels' comparison o f the

And those bad been

And also what we're going t o be discussing now i s

10

A p p e l l a t e E x h i b i t XXIX as w e l l as A p p e l l a t e E x h i b i t s XXXIII andXXXI^

11

because tbese a l l r e l a t e t o i n f o r m a t i o n t h a t was processed together,

12

some o f tbem t o d i f f e r e n t o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t i e s .

13

d u r i n g tbe R.C.M. 802 conference, defense counsel a r t i c u l a t e d what

14

e x a c t l y they were going t o go i n t o d u r i n g tbe t r i a l and t h a t assisted

15

i n focusing the p a r t i e s where we need t o go during t h i s A r t i c l e ^9(a)

16

session, and w e ' l l go i n t o t h a t i n more d e t a i l .

17

So

(^^ And then also, we discussed a couple of other issues. One

18

was p r i v i l e g e under M i l i t a r y Rule o f Evidence 50^.

And the

19

government bad provided the court w i t b a memorandum from tbe Deputy

20

Secretary of Defense, dated 1^ February 200^; t h a t ' s been marked as

21

A p p e l l a t e E x h i b i t XXX^.

And what w e ' l l do i s w e ' l l discuss t b a t at a

274

34776

1

l a t e r time.

2

exercise o f p r i v i l e g e i n a l l cases i n v o l v i n g s p e c i f i c i n f o r m a t i o n ,

3

s p e c i f i c a l l y ICRC communications.

4

i t addresses w i t h i n the memorandum i n d i c a t e s i t may be broader

5

j u s t t h e one case t h a t ' s mentioned on the document.

6

S p e c i f i c a l l y , i t ' s t a l k i n g about, apparently i t ' s an

So the way i t ' s addressed and what
than

(^^ Also, we discussed witness issues, s p e c i f i c a l l y there are

7

t h r e e witnesses t h a t are c u r r e n t l y detainees a t Camp Cropper. And,

8

according t o tbe defense counsel, those witnesses, they're going t o

9

be produced, but i f they're produced, they're not going t o say

10

anything.

And so we discussed t h a t , and the counsel were t a l k i n g

11

about having them declared as u n a v a i l a b l e .

12

what we're going t o need t o do, f o r t b e c o u r t t o f i n d them

13

u n a v a i l a b l e , t b e court's going t o need some evidence before i t t o

14

f i n d them u n a v a i l a b l e .

15

about the f a c t s t h a t the c o u r t could r e l y on, but the court i s not

16

going t o be able t o r e l y on a s s e r t i o n s by counsel t o make a

17

d e t e r m i n a t i o n t h a t witnesses are not a v a i l a b l e .

18

t a l k d u r i n g breaks today and determine

19

s t i p u l a t i o n or i f they b r i n g i n other evidence t o support that i f tbe

20

defense i s s t i l l wanting t o c a l l those witnesses.

21

a l t e r n a t i v e means t h a t the defense i s going t o use, tbey can do t h a t ^

But on f u r t h e r thought,

And i f tbe p a r t i e s enter i n t o a s t i p u l a t i o n

275

So, the coi:insel can

i f they wanted t o enter i n t o a

Or, i f there's

34777

1

also,

^ut the court, t o make a determination of nonavailability, the

2

court does have t o have evidence i n front of i t t o make that fact

3

specific ruling.

4

(^) Okay counsel, what we're going to do now i s we're going

5

t o . . . w e l l , f i r s t of a l l , does anyone have any objections, corrections

6

or additions t o my characterisation of the R.C.M. 802 conference?

7

T r i a l counsel?

8

(0) ATCl:

No, s i r .

9

(^^ MJ:

Defense counsel?

10

(^) DC:

No, s i r .

11

(^) MJ:

Okay, and we'll go i n more d e t a i l as I said

12

about...the bulk of tbe time tbat we were i n there we were going down

13

p r e t t y studiously specific information i n Appellate Exhibits XXX and

14

XXXI.

15

Exhibit XXI and I jt:ist want t o say f o r the record that I did find

16

that tbe need f o r excluding the public from portions of tbe t r i a l

17

that I delineated i s of s u f f i c i e n t magnitude so as t o outweigh the

18

danger of any miscarriage of j u s t i c e which may r e s u l t from j u d i c i a l

19

proceedings being carried out i n even p a r t i a l secrecy.

20
21

8ut I j u s t w a n t t o mention, wehadalreadycovered Appellate

(0^ Also, the 20 documents that were discussed within Appellate
Exhibit XXI along with a l l other c l a s s i f i e d exhibits tbat the court

276

34778

1

already bas w i l l be placed i n a separate volume or volumes of the

2

record of t r i a l that w i l l be appropriately marked and handled as

3

c l a s s i f i e d i n accordance with DoD and Army regulations.

4

(1^) Also, one thing that I want to ask t r i a l counsel to focus a

5

l i t t l e b i t m o r e o n a couple of the witnesses.

6

Cawlik and Cunnery Sergeant ^halen, you said tbat a l l t h e i r testimony

7

was going to be about the c l a s s i f i e d documents and the impact,

8

a c t u a l l y , they're not going to t a l k about impact, r i g h t , because

9

they^re j u s t going to be t e s t i f y i n g on the merits, i s tbat right?

As f a r asCaptain

^ell,

10

(^) ATCl:

Yes, s i r .

11

(^) MJ:

Okay, and that answers the question.

12

(^) As f a r as Appellate Exhibits XXX andXXXI, which was tbe

13

submission by a defense counsel under M.R.E. 505(h), does either side

14

have any additional evidence t o present on t h i s at t h i s point?

15

counsel?

li^

(^)

ATCl:

No,

17

(0)

MJ:

Defense?

^^18^

1^
20

Trial

Your Horror.

(^)^^

No,

sir,

^

(^) MJ:

Okay, I ' l l hear arguments then.

you need to be heard?

277

^

T r i a l counsel, do

34779

1

(^) ATCl:

No, Your Honor.

I believe tbat you have a l l the

2

evidence you need before you witb tbe a f f i d a v i t and tbe OCA

3

determination and Chief Cendron's determination that they're

4

c l a s s i f i e d . Your Honor, to close those portions that s p e c i f i c a l l y

5

relate t o that part of the t r i a l .

^

(0) MJ:

Okay, tbank you. Defense counsel?

7

(^) DC:

Yes, s i r . And s i r , do you want me t o go through

8
9
10
11

i n d i v i d u a l l y each of tbe
(^) MJ:

No, I ' l l do tbat, and j u s t track along and make sure

I cover i t adequately wben I go through i t .
(J) DC:

Yes, s i r . ^ i t b regards t o the matters tbat were

12

presented i n tbe 505 notice, we would argue tbat we don't have any

13

objection, tbere were certain portions tbat we went through during

14

tbe 802 conference between the redacted and tbe unredacted portions

15

of Appellate Exhibit XXX and XXXI.

16

of the issues tbat we want t o get across t o tbe court, tbe unredacted

17

version of tbe 317 pages of emails i s s u f f i c i e n t with the exception

18

of tbe specific emails tbat were pulled out and discussed during tbe

19

802 session.

20

tbat those things sbould be covered i n a closed session because of

^e believe that f o r tbe majority

And we are amenable t o having those things and we agree

278

34780

1

t b e nature o f the m a t e r i a l s t b a t are contained w i t h i n those emails

2

and t b e t h i n g s t h a t w i l l be discussed.

3

(^) MJ:

Okay.

4

(^) DC:

S i r , w i t h regards t o some of the otber matters t h a t

5

were l i s t e d i n our 505 n o t i c e i n regards t o t b e ICRC r e p o r t s and

6

those other t h i n g s , those are s t i l l pending.

7

t o do those on Monday. So, I'm j u s t focusing t h i s s p e c i f i c a l l y on

8

t b e emails t b a t were i n t h e redacted and unredacted p o r t i o n s .

9

S p e c i f i c a l l y , Your Honor, we don't i n t e n d t o i n t r o d u c e i n t o evidence

I b e l i e v e we're going

10

those s p e c i f i c emails subject t o t b e need f o r cross-examination or

11

impeachment or t h i n g s o f t h a t nature, but those are emails t h a t t h e

12

witnesses t h a t we're going t o present on d i r e c t examination and also

13

through cross-examination, t h a t ' s i n f o r m a t i o n t h a t w i l l be touched

14

through cross-examination and d i r e c t examination.

15

emails are a r e p r e s e n t a t i v e sample o f t h e nature o f t h e i n f o r m a t i o n

16

t b a t we want t o get i n t o .

17

d e l i n e a t e d f o r a closed session are those t o p i c s o f i n f o r m a t i o n t h a t

18

we b e l i e v e should be closed t o t h e p u b l i c based on t b e nature o f t h e

19

information.

20

(J) MJ:

And so, those

And so, those p o r t i o n s s p e c i f i c a l l y

A l l r i g h t , thank you.

279

34781

1

(^) A p p e l l a t e E x h i b i t s XXX and XXXI contain numerous emails,

2

attacbments, memoranda, l e t t e r s and s i m i l a r documents.

As the

3

defense counsel j u s t s t a t e d , the defense does not i n t e n d t o o f f e r a l l

4

those documents during the t r i a l but i t was an i n t e n t t o reduce t o

5

w r i t i n g the i n f o r m a t i o n

6

examination or d i r e c t examination of witnesses.

7

h e l p f u l i n t h a t regard; i t was easier t o see i t i n context w i t h

8

everything

9

through the o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y who went through i t i n

they intended t o e l i c i t , e i t h e r dt.iring crossAnd I t h i n k i t was

else and i t enabled t h e government t o process t h a t up

10

great d e t a i l and delineated

which parts were c l a s s i f i e d and which

11

were n o t . So I t h i n k t h a t was h e l p f u l i n g e t t i n g t b a t accomplished.

12

(1^) I f i n d t h a t c e r t a i n i n f o r m a t i o n w i t h i n those e x h i b i t s ,

13

s p e c i f i c a l l y i n four general areas, and they've been redacted out of

14

A p p e l l a t e E x h i b i t XXXI, are c l a s s i f i e d as "secret" by tbe proper

15

o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y which i s the Commander o f tbe

16

Multi-National

17

accordance w i t b Executive Order 12958 as c u r r e n t l y amended.

18

general t o p i c s are JIDC i n c e n t i v e s , detainee and f a m i l y names,

19

manning issues and weaknesses and the i n t e l l i g e n c e c o l l e c t i o n ,

20

i n c l u d i n g methods and procedures.

Force, I r a q , which i s c u r r e n t l y Ceneral Retreaus, i n
Tbe four

Those four very broad subjects

280

34782

1

f a l l w i t h i n the categories i n sections 1.4 Alpha, Charlie and Delta

2

of Executive Order 12958.

3

(U) Also, and more s p e c i f i c a l l y , upon comparing the redacted and

4

unredacted copies of the materials that the defense had submitted

5

under M i l i t a r y Rule of Evidence 505(h) notice, the defense pinpointed

6

specific facts that were redacted that i t wants to e l i c i t i n a closed

7

session.

8

adequately covers what the defense wants to cover.

Those facts are...and I boiled i t down t o 15 that I think

^^^^^^^^^^^^^^^^^H^^^^^^HH
10
11
12
13

(U) Second, d e t a i l s on detainee privileges covering phone c a l l s
and v i s i t s .

HHI^^^^^^^^^^^^^^^^^^^^^^^^^^^^I
15
16
17

Ts
19

(U) Fourth, ICRC issues; and we'll address that l a t e r as far as
ICRC issues.

^

34783

1
2
3
4

(^) Seventh, more information about the release procedures.

5

(J) Eighth, the fact that t h i r d country nationals are detained

6

at Camp Cropper.

7

(1^) Ninth, a specific 510 request for Detainee Number 184.

8

(1^) Tenth, an increase i n the number of family v i s i t s and phone

9
10
11

c a l l s over a certain period of time as shown with tbe chart.
(il) Eleventh, more information concerning the ICRC, s p e c i f i c a l l y
t h e i r reports.

12
13
14
15
16
17
18
19
20
21

(0) And f i f t e e n t h , information on the mission of Camp Croppers
why i t was designed and what i t s current mission i s now.
(0) Defense counsel, have I adequately covered the points that
you broi:ight up?

282

34784

1

(U) DC:

Yes, s i r .

2

(1^) MJ:

I t h i n k you bad i t down t o 19 or so, but I t h i n k some

3

of them were redundant.

4

(1^) OC:

Yes, s i r .

5

(^) MJ:

I find that t b i s specific information i s c l a s s i f i e d

6

" s e c r e t " by the proper o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y i n

7

accordance w i t h Executive Order 12958 as c u r r e n t l y amended.

8

s p e c i f i c i n f o r m a t i o n does f a l l w i t h i n the categories and

9

1.4(a),

(c) and

(d) of Executive Order 12958.

And

this

sections

From^ a l l the evidence

10

and from the circumstances i n t b i s p a r t i c u l a r case...now, before I

11

s t a t e t h i s , l e t me c l a r i f y .

12

the ICRC i n f o r m a t i o n separately.

13

t h a t mentioned the ICRC, so t h i s r u l i n g does not ^pply t o those.

14

Those w i l l be handled separately.

15

f o r the f o u r general categories mentioned i n the a f f i d a v i t , I am

16

s a t i s f i e d t b a t there i s a reasonable danger t h a t p r e s e n t a t i o n of

17

these m a t e r i a l s before tbe p u b l i c i n open court w i l l expose m i l i t a r y

18

matters which i n the i n t e r e s t of n a t i o n a l s e c u r i t y should not be

19

divulged.

20

of s u f f i c i e n t magnitude t o outweigh tbe i n t e r e s t i n having a l l t r i a l s

21

open t o the p u b l i c .

I s a i d e a r l i e r we were going t o handle
So, t b e r e were two of the 15

items

For the other 13 items and also

Also, the danger i s of s i g n i f i c a n t — w e l l , c o r r e c t i o n , i s

283

34785

1

(^) Now defense counsel, are you able t o delineate which witness

2

i s going to t a l k about any of tbese specific matters, or i s i t going

3

t o depend on the direct examination?

4

(^) OC:

S i r , a majority of i t w i l l depend on the direct

5

examination because both defense witnesses and government witnesses

6

i n a l o t of circumstances w i l l cross.

7

need t o get out from those witnesses we put on our witness l i s t w i l l

8

l i k e l y come through cross-examination as opposed t o c a l l i n g tbem

9

again during tbe defense's case.

10
11

(^) MJ:

i^nderstood. T r i a l counsel, does the government

intend t o go i n t o any of these areas on direct examination?

12

(^) ATCl:

One moment. Your Honor.

13

(^) MJ:

Yes.

14

(1^) ATCl:

15
16

And so, the information we

[Pause.]

Sir?

I think there's a l i t t l e b i t of c l a r i f i c a t i o n — I ' d

ask f o r a l i t t l e c l a r i f i c a t i o n on your r u l i n g on detainee privileges.
(^) MJ:

Yeah, I said d e t a i l s on detainee privileges.

So

17

there, i t would be...and i t ' s hard to a r t i c u l a t e ,

18

Appellate Exhibits XXX and XXXI i s the general nature of detainee

19

privileges i s not c l a s s i f i e d ,

20

d e t a i l s of how many c a l l s are allowed, how long someone has to be

21

there before they're authorised t o c a l l .

that's clear i n

^ut when you get i n t o the specific

284

So r e a l l y when I say that.

34786

1

I'm t a l k i n g about tbe redacted portions w i t h i n Appellate Exhibits XXX

2

and XXXI.

3

wondering i s whether you're going to go i n t o any of those details

4

witb any of your witnesses.

5

That's what's c l a s s i f i e d "seci:^et," so that's what I'm

(0) ATCl:

Is i t unclear at t h i s point?

No, s i r , I believe we w i l l on several witnesses get

6

i n t o the specific phone c a l l s that detainees are allowed and bow

7

we're alleging that Colonel Steele deviated from that when he

8

prcvided an unmonitored phone c a l l .

9

Your Honor, that i t ' s eitber going t o be covered by 50^ as we made

So, t o the extent--I believe,

10

that request wben tbat comes i n , and depending o n — I think tbe

11

s p e c i f i c i t y i s i f i t ' s t i e d t o a specific detainee, that's when i t

12

becomes c l a s s i f i e d . I f i t ' s not t i e d t o a specific detainee....

13
14
15
16
17

285

34787

0) ATCl:
13

Yes, s i r , I can give you a l i s t of government

witnesses tbat are going t o touch on tbat area, sir?

14

(U) MJ:

Sure, please.

15
16
17
18
19

^

^

^

^

^

(U) MJ;

20
21

^

^

^

^

^

^

And defense counsel, are you able t o add any to that

list?

mBHH^^H
286

34788

1

(^) DC:

Yes, s i r . S i r , Sergeant Major ^inkleman, who was

2

Colonel Steele's sergeant major i n t b a t time.

H e ' l l probably touch

3

on issues l i k e t h e mission o f Camp Cropper, t h e persons a t Camp

4

Cropper...oh, I'm s o r r y , d i d you j u s t want t h e names, s i r ?

5

(0) MJ:

Yes, j u s t t b e names.

6

(1^) OC:

Sergeant Major ^inkelman, probably Lieutenant Colonel

7

^ a r t a n i a n . S t a f f Sergeant Findley and Captain M e r r i t t .

And then,

8

s i r , from t b e government's l i s t , we b e l i e v e t b a t those s o l d i e r s t h a t

9

served as guards or S a l l y Port guards or t h i n g s o f t h a t nature t h a t

10

may be t e s t i f y i n g about s p e c i f i c s w i l l also get i n t o some o f those

11

t h i n g s d u r i n g cross-examination o r i t may come out through d i r e c t .

12

(^) MJ:

Okay, a l l r i g h t s t h a t ' s s u f f i c i e n t .

Okay, so f o r

13

those witnesses...and

14

f o l l o w i n g , be sure I ' l l c o r r e c t you on t h e spot.

15

t o do i s l i k e I s a i d , package your c l a s s i f i e d and u n c l a s s i f i e d . And

16

t b e reason why t h a t ' s important, t w o f o l d ; one, i s I don't want t o

17

close t h e c o u r t and then have a l o t o f u n c l a s s i f i e d i n f o r m a t i o n

18

coming o u t when I could bave bad t h e p u b l i c s i t t i n g i n here l i s t e n i n g

19

t o a l l tbat.

20

economy, I don't want t h i s t o be a parade i n and out o f the courtroom

21

a l l day long d u r i n g one witness' testimony.

cotinsel, I ' l l be t r a c k i n g , i f you're not

I don't want t h a t .

B^t what I need you

And then second, f o r j u d i c i a l

So those are my two

34789

1

purposes f o r having you package i t .

So I t h i n k everyone's clear on

2

t h a t and i f I t h i n k you're not doing t h a t , I ' l l j u s t c o r r e c t you on

3

t h e spot.

4

(0^ Okay, next, we're going t o t a l k about two s p e c i f i c areas

5

t h a t were w i t h i n those same two a p p e l l a t e e x h i b i t s , XXX and XXXI.

6

They went i^p t o d i f f e r e n t o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t i e s and the

7

two issues are, one i s a l e t t e r from Ambassador ^ h a l i l ^ a d t o tbe

8

Prime M i n i s t e r o f I r a q , and also I t h i n k there was a memo t o tbe

9

Ambassador from one o f h i s employees concerning t h e same l e t t e r .

And

10

then a l s o , there's a request from tbe Commander o f Task Force 515 t o

11

t h e Commander o f Task Force 134 concerning i n c e n t i v e approach

12

techniques.

13

d i d go up t o a d i f f e r e n t OCA.

14
15

I j u s t want t o approach those separately because they

(1^) Do counsel f o r e i t h e r side need t o be heard on e i t h e r o f
tbese two separate doci^ments?

16

(^) ATCl:

No, Your Honor.

17

(1^) DC:

No, s i r .

18

(^) MJ:

Okay, and f i r s t o f a l l , I t h i n k I had mentioned

19

e a r l i e r t b a t a t t h e back o f A p p e l l a t e E x h i b i t XXXI^ was added a

20

department n o t i c e from t h e Department o f State.

21

o r not a c e r t a i n p o s i t i o n was autbori:^ed or delegated t h e a u t h o r i t y

288

I t concerns whether

34790

1

of o r i g i n a l c l a s s i f i c a t i o n authority.

And looking at that document,

2

i t does address the issue I had.

3

top of the fourth page, i t s p e c i f i c a l l y addresses tbat.

4

document t h i s appellate exhibit i s t a l k i n g about i s a l e t t e r from the

5

Ambassador t o the Prime Minister of Iraq; i t ' s dated 5 January 200^

6

and i t ' s also an action memo to the Ambassador from his employee, Mr.

7

David L i t t , and that's dated 11 October 2005.

8

memo that discusses the international and c o a l i t i o n implications of

9

the release of two H^Ds i n January of 200^.

On the bottom of tbe t h i r d page,
And tbe

There's a l e t t e r and

The H^Os are mentioned

10

by name and discuss the quantum of evidence i n t h e i r criminal cases.

11

(^^ This document has been c l a s s i f i e d as "secret" by the proper

12

o r i g i n a l c l a s s i f i c a t i o n authority, which i s the section head of the

13

P o l i t i c a l M i l i t a r y A f f a i r s at the ^.S. Embassy i n Iraq, who at tbe

14

time was Ms. ^aren Sassabara, i n accordance with Executive Order

15

12958 as currently amended. And the information within that l e t t e r

16

does f a l l within the categories i n sections 1.4(b) and 1.4(d^.

17

the evidence and the circumstances i n t b i s case, I am s a t i s f i e d there

18

i s a reasonable danger that presentation of tbese materials before

19

the public i n open court w i l l expose m i l i t a r y matters which i n the

20

i n t e r e s t of national security should not be divulged and that danger

21

i s of s u f f i c i e n t magnitude to warrant closing the court.

289

From

34791

1

(J) Now defense counsel, what's tbe means by which you're going

2

to e l i c i t tbat information, the actual l e t t e r or just through

3

testimony?

4

(J) OC:

Sir, j u s t testimony.

5

(0) MJ:

Okay, and tben j u s t handle that testimony the same

6
7

way as tbe otber areas tbat we j u s t discussed.
(J) DC:

Yes, s i r .

^

9
10

290

34792

6
7
8
9

^0) Defense counsel, again, the same question, do you intend t o
o f f e r that document or i s i t through a testimony of witnesses?
(0^) OC:

I t ' s j u s t through the testimony of witnesses. Your

Honor.

10

(^) MJ:

11

information,

Okay, handle that the same way I directed the otber

12

(^) Counsel, now what we're going t o do i s we're going t o

13

address the information that's contained i n Appellate Exhibit XXIX.

14

Tbe information that I j u s t covered also was covered by Appellate

15

Exhibit XXIX but we're going t o cover the rest of the information

16

w i t h i n tbere.

17

or arguments? T r i a l counsel?

18

(^) ATCl:

Oo counsel f o r eitber side have any evidence t o offer

Sir, j u s t on the series of rules of engagement, both

19

MNF-I and MNC-I that are i n tbat, that w i l l likely...depending on how

20

you rule on tbe j u d i c i a l notice, be documentary evidence.

291

Otherwise,

34793

1

we'll have t o c a l l a witness that w i l l come i n through testimony and

2

tben as a document.

3
4

(^) MJ:

So I j u s t wanted to

I understand, s^re.

Fair enough; okay, that's

helpful.

5

Oefer^se counsel?

6

(^) OC:

Sir, can I b r i e f l y look at i t ?

7

(^) MJ:

Sure.

8

(^) OC:

S i r , are we t a l k i n g to Binder 1, those documents i n

9
10
11

[DC reviews e x h i b i t . ]

8inder 1?
(^) MJ:

Yes, a l l the doc^ents i n Appellate Exhibit XXIX,

there should be 11. Have you had a chance t o look at hat?

12

(^) OC:

Yes, s i r , with the exception of tab 1, but tbe others

13

ten tabs, we have.

14

(1^^ MJ:

Co ahead and look at tab 1, tben.

And apparently,

15

t r i a l counsel, you can correct me i f I'm wrong, but i t w i l l help the

16

defense ccunsel, i t appears that tab 1 was evidence you intend to

17

e l i c i t from witnesses through witness testimony.

18

appears tbat someone went through and put i n red a l l the testimony

19

that would be "secret," c l a s s i f i e d as "secret". And then when i t

20

went up f o r the OCA determination, i t was determined that that red

21

testimony i s "secret," i s that correct?

And apparently, i t

34794

1

(1^) ATCl:

One moment. Your Honor.

2

(^) MJ:

Sure.

3

(0) DC:

S i r , w i t h regards t o some o f the doct.^ments t h a t are

4

i n binder 1, I b e l i e v e some o f those SOPs are s t i l l pending review.

5

So, we may have more argument on those SOPs when we do t h a t on

6

Monday.

7

(^^ MJ:

That's a good p o i n t .

And we can t a l k about t h a t now,

8

i s I'm i n c l i n e d a t t h i s p o i n t t o f i n d t h a t tabs 2 through 5 have not

9

been c l a s s i f i e d by any a u t h o r i t y , so they would not f a l l w i t h i n

10

M i l i t a r y Rule o f Evidence 505. So I ' d e i t h e r make t b a t r u l i n g or

11

what we could do i s put t h a t o f f .

12

s t i l l working on t h a t issue, whether they would f a l l under 502 or

13

some other r u l e .

I t h i n k t h e t r i a l counsel was

14

(^) ATCl:

Yes, Your Honor.

15

(1^) MJ:

So what I ' l l do i s f o r tabs 2 through 5, I ' l l j u s t

16

defer on those documents.

17

t h a t ' s a good p o i n t , defense counsel.

18
19
20

(1^) OC:

So we're looking a t 1 and ^ through 11;

And s i r , we're j u s t s p e c i f i c a l l y t a l k i n g about tbe

c l o s i n g o f t h e hearing f o r discussion on those m a t e r i a l s ?
(^^ MJ:

Yes.

34795

1
2
3

(^) OC:

Yes, s i r . Other than t h a t , we don't have any other

argument f o r purposes of those enclosures or those tabs.
(0) MJ:

F i r s t o f a l l , I'm going t o cover tabs ^ through 10;

4

I'm going t o address them t o g e t h e r .

5

i n those f i v e tabs has been c l a s s i f i e d as " s e c r e t " by the proper

6

o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y , which i s the Commander o f the

7

M u l t i - N a t i o n a l Force, I r a q , Ceneral Retreaus, and i n accordance w i t h

8

Executive Order 12958 as amended most r e c e n t l y on 25 March 2003.

9

S p e c i f i c a l l y , what's contained i n those tabs i s M u l t i - N a t i o n a l Forced

Thosefivetabs, tbeinformation

10

I r a q , Framework Operations Order, dated 1 May 200^, marked as

11

" s e c r e t " o v e r a l l w i t h most p o r t i o n s marked " s e c r e t " and some marked

12

"unclassified".

13

s e r v i c e support and command and s i g n a l .

14

Annex C t o MNC-I Operations Order 0^-01, dated 21 A p r i l 200^.

15

marked as " s e c r e t " o v e r a l l w i t h most p o r t i o n s marked " s e c r e t " and

16

some marked " u n c l a s s i f i e d " .

17

engagement f o r i^.S. forces f o r OPORD 0^-01.

18

4 t o Annex C t o M u l t i - N a t i o n a l Corps, I r a q , Operations Order 05-02,

19

dated 27 J u l y 2005, a l s o marked as " s e c r e t " o v e r a l l w i t h most

20

p o r t i o n s as " s e c r e t " and some marked as " u n c l a s s i f i e d " .

This

21

appendix contains r u l e s of engagement f o r 4I.S. f o r c e s .

Tab 9

I t contains t b e s i t u a t i o n , mission, execution,
Tab 7 has Appendix 7 t o
Also

Tbis appendix contains t h e r u l e s o f

294

Tab 8 contains Appendix

34796

1

contains Appendix 5 to Annex C t o Multi-National Force Framework,

2

Operations Order dated 1 May 200^, marked as "secret" witbmost

3

poi:'tions marked "secret" and some portions marked "^.unclassified".

4

This appendix contains rules of engagement f o r l^.S. forces.

5

10 contains tab Bravo t o Appendix 5 t o Annex C to Multi-National

6

Force, Iraq, Framework Operations Order dated 1 May 200^, marked as

7

"secret" o v e r a l l witb most portions marked "secret" and some marked

8

"unclassified". This annex contains d e f i n i t i o n s f o r rules of

9

engagement.

10

And tab

(^) From a l l the evidence and from the circumstances i n t b i s

11

case, I am s a t i s f i e d tbat there i s a reasonable danger that

12

presentation of these materials before the public w i l l expose

13

m i l i t a r y matters which, i n the interest of national security, should

14

not be divulged.

^5

(0) Next, I want t o address tab 11, and tbat was a M i l i t a r y Rule

16

of Evidence 505 notice from the defense, dated 3 September 2007. I t

17

was not marked as c l a s s i f i e d and tbe memo goes through i n the

18

subparagraphs, i n subparagraphs A through R t a l k s about evidence that

19

may be offered at t r i a l that could f a l l w i t h i n M i l i t a r y Rule of

20

Evidence 505.

21

3e, 3f, 3g, 3b, 31, 3k, 31, 3n and 3r i s c l a s s i f i e d as "secret" by

I f i n d that tbe information mentioned i n subparagraphs

34797

1

the proper o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y , which i s t h e Commander

2

of M u l t i - N a t i o n a l

3

12958 as amended.

4

executive order i t f a l l s , I ' l l cover those separately.

5

^d and 3f i s c l a s s i f i e d " s e c r e t "

6

would f a l l w i t h i n section

7

Subparagraph 3g t a l k s about a r o s t e r of released detainees, and t h a t

8

would f a l l w i t h i n categories 1.4(a) f o r m i l i t a r y operations and

9

1.7(e^.

Force, I r a q , i n accordance w i t b Executive Order
Now, as f a r as which categories w i t h i n the
Subparagraphs

as f a r as detainee names.

And t h a t

1.4(a) f o r m i l i t a r y operations.

And the reason f o r i t f a l l i n g w i t h i n category 1.7(e) i s

10

although i n d i v i d u a l f a c t s w i t h i n there might not be c l a s s i f i e d , the

11

c o m p i l a t i o n o f t b e i n d i v i d u a l u n c l a s s i f i e d inform^ation meets the

12

requirement f o r a c l a s s i f i c a t i o n l e v e l o f ^^secret".

1^
14
15
16
17
18
19
20
21

296

34798

1
2
3
4
5

(^) OC:

Yes, s i r .

6

(^) MJ:

I ' l l s t i l l address i t i n hopes t b a t they do t e s t i f y .

7

But t h a t i n f o r m a t i o n would f a l l w i t h i n categories 1.4(a^ and 1.4(c).

8

From tbe evidence, I f i n d t h a t t h e i n f o r m a t i o n i n the subparagraphs I

9

j u s t mentioned does create a reasonable danger t b a t presentation o f

10

these m a t e r i a l s before t h e p u b l i c i n open court would expose m i l i t a r y

11

matters wbich i n t h e i n t e r e s t of n a t i o n a l s e c u r i t y should not be

12

divulged.

13

(^) Now, as f a r as t h e other subparagraphs, j u s t so we're c l e a r

14

on t h i s , t r i a l counsel, subparagraphs 3a through 3d, i t doesn't f a l l

15

w i t h i n M i l i t a r y Rule o f Evidence 505, i s t h e government pursuing a

16

d i f f e r e n t avenue o f approach f o r those?

17

(^) ATC2:

Yes, Your Honor, we'repursuingM.R.E. 50^. ^e

18

b e l i e v e , and I b e l i e v e we marked i t p r e v i o u s l y , but the memo signed

19

by t h e Secretary

20

because i t does not apply t o t h a t s p e c i f i c case but t o ICRC

21

communications g e n e r a l l y , Your Honor.

of Oefense sbould be s u f f i c i e n t f o r t h a t i n v o c a t i o n ,

297

34799

1

(0) MJ:

^hat we're going t o do, what I i n t e n d t o do i s ,

2

defense counsel, you haven't bad a chance t o look a t t b a t memo a t

3

l e n g t h , have you?

4

(U) OC:

No, s i r .

5

(0) MJ:

And so o b v i o u s l y we're not doing t r i a l by ambush, so

6

I'm going t o give the defense counsel enough time t o look at t b a t and

7

then w e ' l l l i t i g a t e i t wben they've had ample o p p o r t u n i t y

8

Okay, so t h a t ' s your approach w i t h t b a t one.

9
10

(^) And subparagraph
(^) ATCl:

t o prepare.

3 j and 3m?

^ i t h regards t o 3 j , Your Honor, I b e l i e v e t h a t Chief

11

Cendron recommended t h a t i t be u n c l a s s i f i e d as s t a t e d .

12

s p e c i f i c s i n s p e c i f i c cases w i l l probably have t o be t r e a t e d

13

d i f f e r e n t l y . Your Honor.

14
15
16

(^) MJ:

And now

So you're t a l k i n g about s p e c i f i c detainee records, i s

tbat i t ?
(^) ATC2:

Yes, Your Honor, on j t h e r e .

I t h i n k as stated, as

17

they s t a t e d , i t ' s u n c l a s s i f i e d ; however, I t h i n k i t would be a

18

d i f f e r e n t case w i t b more s p e c i f i c

19

(^) MJ:

information.

Okay, r i g h t , I'm l o o k i n g a t i t .

Oefense counsel, do

20

you i n t e n d t o get i n t o s p e c i f i c detainee records or j u s t the general

21

nature of the conversation t h a t took place i n the emails?

298

34800

1

(^) OC:

S i r , f o r j , t h a t was t h e general nature.

However,

2

i t ' s a l s o covered by subparagraph 3e, and those are the s p e c i f i c

3

records d e a l i n g w i t b c e r t a i n determinations of detainees.

4

determined t o be " s e c r e t , " but i n terms o f the general i n f o r m a t i o n

5

and the c l a s s i f i c a t i o n l e v e l i n general, t h a t ' s testimony t h a t would

6

be e l i c i t e d but not n e c e s s a r i l y s p e c i f i c t o a s p e c i f i c detainee.

7
8

(4I) MJ:

So 3e was

Okay, you're r i g h t , yeah, because "e" was secret i f

i t got i n t o a s p e c i f i c detainee w i t h t b e name.

^

(^) OC:

Yes, s i r .

10

(^) MJ:

Okay, understood, a l l r i g h t .

11

(J) ATCl:

S i r , Your Honor, t o the e x t e n t t h a t "e" and " j " are

12

redundant,

i f they don't get i n t o any s p e c i f i c s , tbe government won't

13

have any issues w i t b t h a t .

14

(^) MJ:

And, 3m?

15

(^) ATCl:

Your Honor, again, t h i s i s a 506 request t h a t ' s w i t b

16

t b e Secretary o f the Army t b a t we hope t o bave signed before Monday,

17

Your Honor.

18

s p e c i f i c p r i v i l e g e s as contained i n those emails, Your Honor.

19

p o r t i o n o f t h a t obviously w i l l be c l a s s i f i e d as you p r e v i o u s l y

20

determined and then a p o r t i o n w i l l h o p e f u l l y a s — o n Monday, the 50^

21

material.

You also d i d make a s p e c i f i c r u l i n g a moment ago about

299

So, a

34801

1

(0) MJ:

Is there any ambiguity as f a r as, what do I mean by

2

specifics concerning privileges or what's not specifics, i t ' s easy.

3

A l l you bave t o do i s i f you look i n and compare the redacted and

4

unredacted versions of Appellate Exhibits XXX and XXXI, you can see

5

the level of d e t a i l that's c l a s s i f i e d and tbe level of d e t a i l that's

6

not c l a s s i f i e d .

7

c l a s s i f i e d and what's not c l a s s i f i e d .

8

you hope t o have a document from^asbington concerning M.R.E. 506 by

9

Monday?

So i n my mind, there's a clear l i n e there of what's
A l l r i g h t , so you're saying

10

(0) ATCl:

Yes, Yo^r Honor.

11

(^) MJ:

And subparagraph 3o does not appear t o be c l a s s i f i e d

12

and i t doesn't appear that there's any,..it can be discussed i n open

13

court.

14

I s tbat r i g h t , t r i a l

counsel?

(t^) ATC2: ^ e l l , again, Your Honor, I think there's a

15

d i s t i n c t i o n tbat the fact that we do segregate people, i n general, i s

16

not c l a s s i f i e d , Your Honor, but a specific case, again, you know, f o r

17

instance, "^e segregated high value detainee number sucb and sucb

18

over here because of t b i s specific reason," we probably crossed that

19

line.

20

tbat we do segregate people, i t s e l f , i s not c l a s s i f i e d , Your Honor.

But again, as written here^ tbat i s not c l a s s i f i e d .

The fact

300

,^,^.^^^4^^.^,^

34802

1

(^) MJ:

2

i n general terms?

3

(^) OC:

Just i n general terms, yes, s i r .

4

(0) MJ:

Okay, a l l r i g h t , that's f i n e .

5
6

I s that where you're going, defense counsel, i s just

Then that one should

be clear t o discuss i n the open then.
(0) Okay, 3p has already been covered by some of tbe other

7

rulings, I think, i s that r i g h t , defense counsel?

8

of things i n there as far as....

There's a couple

9
10
11
12

(^) MJ:

Exactly.

16

(0) MJ:

Okay, that's the way I i n t e r p r e t i t , too.

17

(U) 3q covers ICRC evaluations; that's going t o be covered

18

separately wben we discuss ICRC, and tbat w i l l be Monday j u s t because

19

defense needs time to prepare for that.

20

of tab 11.

13
14
15

301

And I think that covers a l l

34803

1

(0) Next, the only otber tab we bave l e f t i n tbe book, remember,

2

we're going t o push tabs 2 through 5 o f f , i s tab 1. Now, what that

3

i s i s the witness expected testimony. I t ' s undated and what's

4

happened i s someone bas gone i n tbere and put i n red font specific

5

testimony. And then what's happened i s when i t went up to the OCA,

6

the OCA c l a s s i f i e d tbat testimony as "secret," which actually i s the

7

way i t works so i t ' s clear as f a r as that testimony that tbe

8

government intends t o e l i c i t from those witnesses and those areas

9

would be c l a s s i f i e d as "secret".

10
11

(^) Does counsel for eitber side want to be heard on that tab,
tab 1?

12

(^) ATCl:

No, Your Honor.

13

(0^ MJ:

Oefense?

14

(^) OC:

No, s i r .

15

(0) MJ:

I f i n d tbat tbe synopsis of those 18 witnesses'

16

testimony, which i s highlighted i n red font, has been c l a s s i f i e d as

17

"secret" by the proper o r i g i n a l c l a s s i f i c a t i o n authority, which i s

18

tbe Commander of the Multi-National Force, Iraq, currently Ceneral

19

Retreaus, i n accordance with Executive Order 12958 as amended. From

20

a l l the evidence and a l l the circumstances, I'm s a t i s f i e d there's a

21

reasonable danger that the presentation of these materials before tbe

302

34804

1

public w i l l expose m i l i t a r y matters, which i n the interest of

2

national security, should not be divulged.

3

(1^) I think we're almost tbere. ^e're going t o next address

4

Prosecution Exhibit 1 foi^ i d e n t i f i c a t i o n s wbich apparently contains

5

detainee records.

6

argument on t b i s issue?

7

(1^) ATCl:

8

about again?

9

(0) MJ:

10

Do counsel f o r either side have any evidence or
T r i a l counsel?

Your Honor, I'm sorry, what binder are we talking

I t ' s PE 1 f o r ID; i t ' s the detainee records, 15

detainees, computer printouts.

11

(^) ATCl:

No, nothing from tbe government. Your Honor.

12

(1^^ MJ:

Oefense counsel?

13

(^) DC:

S i r , not with regards t o , I guess, tbe c l a s s i f i c a t i o n

14

levels,

15

t h i s evidence would actually come i n during the court-martial.

16
17

^e're s t i l l reserving the same objection as before as to how

(^) MJ:

understood, okay, yes, and we're just covering

M i l i t a r y Rule of Evidence 505 issues now.

18

(0) DC:

1^

(^) MJ:

Yes, s i r .
So I won't be admitting t h i s document at this point.

20

So a l l normal evidentiary objections are s t i l l available to you.

21

Prosecution Exhibit 1 for i d e n t i f i c a t i o n contains Task Force 134

34805

1

detainee records.

I t ' s undated; i t ' s marked as " s e c r e t " and i t bas

2

p r i n t o u t s from a computer database t b a t l i s t s 15 detainee by ISN,

3

name, gender, n a t i o n a l i t y a n d c u r r e n t d i s p o s i t i o n .

4

c l a s s i f i e d as " s e c r e t " by the proper o r i g i n a l c l a s s i f i c a t i o n

5

a u t h o r i t y , wbicb i s the Commander of M u l t i - N a t i o n a l Force, I r a q ,

6

Ceneral Retreaus and i n accordance w i t h Executive Order 12958 as

7

amended on 25 March 2003.

8

c a t e g o r i e s i n sections 1.4(a) and 1.4(c).

9

from the circumstances i n t h i s case, there i s a reasonable danger

Ithasbeen^

Tbis evidence does f a l l w i t h i n the
From a l l the evidence

and

10

t h a t the p r e s e n t a t i o n of these m a t e r i a l s before tbe p u b l i c w i l l

11

expose m i l i t a r y matters, which i n the i n t e r e s t of n a t i o n a l s e c u r i t y ,

12

sbould not be d i v u l g e d .

13

by p r o v i d i n g a n t i - C o a l i t i o n members w i t h a comprehensive l i s t of

14

detainees wbich could also l i m i t t h e i r value as sources.

15

provides d e t a i l s on the procedures of detainee operations, wbicb

16

would binder i n t e l l i g e n c e c o l l e c t i o n from f u t u r e detainees.

17

t h a t the need t o exclude the p u b l i c i s of s u f f i c i e n t magnitude sucb

18

as t o outweigh the danger of a miscarriage of j u s t i c e which might

19

a t t e n d j u d i c i a l proceedings c a r r i e d out even i n p a r t i a l secrecy.

^0
21

(^^ Now

I t would hinder c u r r e n t m . i l i t a r y operations

Also, i t

I find

t r i a l counsel, how are you going t o o f f e r t h i s ? I t ' s

going t o be o f f e r e d as a document, i s t h a t c o r r e c t ?

304

34806

1

(^) ATCl:

2

8 0 3 ( ^ ) , Your Honor.

3

answer. Your Honor.

4^

(1^) MJ:

902(11) n o t i c e , we provided t b a t t o t b e defense, yes,
Not through witness testimony, I guess i s t h e

Not tbroi.igh witness testimony,

^ e l l , I was j u s t

5

l o o k i n g a t as f a r as bow we're going t o b i f u r c a t e tbe t r i a l , but

6

w e ' l l leave t h a t up t o j u s t normal e v i d e n t i a r y

objections.

7

(^) A l l r i g h t , so t o summarise, I t h i n k we're done w i t h the

8

M i l i t a r y Rule o f Evidence 505 issues t h a t we're going t o address

9

today.

The issues t h a t are s t i l l open are t h e r e were

some...well,

10

t h e issue about ICRC records and e v a l u a t i o n s .

11

g o i n g t o get achance t o l o o k a t tbe memo f r o m t h e O e p a r t m e n t of

12

Oefense concerning t h a t and then w e ' l l discuss t h a t Monday morning.

13

Also, there's some i n f o r m a t i o n t h a t was covered today that has not

14

been c l a s s i f i e d as " s e c r e t " . The defense counsel s a i d tbey may be

15

g e t t i n g something

16

Monday.

17

covered i n a closed session, w e ' l l cover t h a t on Monday.

18
19
20
21

Defense counsel i s

from Washington on t h a t and w e ' l l cover t b a t on

Or, i f there's some o t b e r argument on why t b a t would be

(U) Counsel, what I want t o do now i s t o l i t i g a t e motions t h a t
are s t i l l pending.
(1^) ATCl:

Yes, t r i a l counsel, you're standing up?

Your Honor, t b e r e was an a d d i t i o n a l p o r t i o n , I guess

i t ' s round three f o r a l a c k . . . .

305

34807

1

(1^) MJ:

2

(^) ATC2: Round three, tbere was tbe database tbat we jtist

3

Round three?

discussed, but the defense had also submitted detainee records.

4

(il) MJ:

And has tbat been marked as an appellate exhibit?

5

(^) ATCl:

I believe so, Your Honor. And Your Honor, the issue

6

there i s that many of those or some of those documents were declared

7

c l a s s i f i e d by the OCA, but there are some i n there that are not

8

classified.

9

much, but...and I wish I'd brought t h i s up at the 802 session, but we

^Pause.] And Your Honor, not t o complicate matters too

10

also received the 902(11) notice from the defense yesterday with

11

documents similar t o those but not included i n that and bave never

12

received a c l a s s i f i c a t i o n review, and there's I think 19 documents i n

13

tbe 902(11) notice that bave not been sent t o the OCA.

14

(^) OC:

Sir, i f you look at tbe 505 notice, I believe tbat

15

those were actually already reviewed because both of those documents

16

tbat you're reviewing f a l l under 3 Echo and 3 Foxtrot and that 3 Echo

17

pertains t o tbe various m^agistrate reviews, the A r t i c l e 78 board

18

determinations conducted on the detainees linked t o Charge I . And

19

subparagraph

20

pertain t o the release and approval f o r release of the detainees from

21

Camp Cropper from that period of time, and i t s p e c i f i c a l l y delineates

3 Foxtrot, s p e c i f i c a l l y pertains to...the documents

306

34808

1

which detainees we're r e f e r r i n g t o .

2

Echo and 3 F o x t r o t which were deemed by the c l a s s i f i c a t i o n review t o

3

be c l a s s i f i e d " s e c r e t " .

4

doct:tments t h a t — t b e documents provided back t o the government were

5

documents t h a t w e r e p r o v i d e d t o us by

6

(0) MJ:

So, those were captured under 3

And s i r , tbese documents were a l l the

thegovernment.

Yes, but t h a t doesn't accomplish what they need.

7

mean, you s t i l l have t o t e l l tbem what you intend t o o f f e r so they

8

know t o process i t f o r a c l a s s i f i c a t i o n review i n advance.

^

(0) OC:

I

Roger, s i r , and we b e l i e v e t h a t i n 3 Foxtrot we

10

s p e c i f i c a l l y l a i d out the s p e c i f i c detainees, the s p e c i f i c release

11

documents, and same t h i n g w i t b 3 Echo and the s p e c i f i c detainees and

12

t h e i r reviews.

13

(^) ATCl:

Your Honor, i n response t o t h a t , those were

14

s p e c i f i c a l l y reviewed by the OCA and determined not t o be c l a s s i f i e d .

15

And r e a l l y the problem, tbe crux o f the problem i s t h a t we received

16

tbese on l a t e n o t i c e , these s p e c i f i c documents on l a t e n o t i c e ,

17

got them on I t h i n k i t was 2 October from the defense, and we j u s t

18

simply d i d not have time t o get those t o t h e Secretary o f the Army or

19

probably t h e OCA f o r 502 m a t e r i a l .

20
21

(^) OC:

^e

S i r , w i t b t h a t , the defense was not aware t h a t tbe

government needed more s p e c i f i c documents.

307

Retween 3 September when

34809

1

we put n o t i f i c a t i o n and 2 October, i t wasn't u n t i l 2 October t h a t tbe

2

government asked us t o give them...to parse i t down and give them

3

more s p e c i f i c t h i n g s because they thought i t was too broad or there

4

were t o o many documents.

5
6

(0) MJ:

Now,

you i n t e n d t o use those documents or j u s t

testimony about the i n f o r m a t i o n i n the documents?

7

(^) DC:

Those documents, s i r .

^

(0) MJ:

Those documents, okay.

9

(tl) OC:

And s i r ,

i t ' s not testimony, i t would be documentary

10

evidence t h a t would go i n t o evidence.

11

the...unless I'm mistaken, but the determination was made t h a t those

12

would be c l a s s i f i e d documents or c l a s s i f i e d " s e c r e t " i f tbey

13

were...by tbe i n i t i a l c l a s s i f i c a t i o n review t h a t was done on the 505

14

n o t i c e and wben they went through tbe various subparagraphs.

15

(^) MJ:

And I tbougbt t h a t

A l l r i g h t , w e l l , I ' l l look at t h a t .

Now,

as f a r as

16

A p p e l l a t e E x h i b i t XXXII, t r i a l counsel, and i t ' s good you caught

17

t h a t , there was a binder t h a t I bad overlooked. And I bad seen these

18

m a t e r i a l s before though.

19

hasn't been c l a s s i f i e d as " s e c r e t , " I understand t b i s i s m a t e r i a l

20

t h a t the defense i s wanting t o o f f e r , i s t h a t r i g h t ?

21

(0) ATCl:

Now,

as f a r as the i n f o r m a t i o n here t b a t

Yes, Your Honor.

308

34810

1

(^) MJ:

And so i f there's information here that's not secrete

2

i t comes out i n open court.

3

f a l l s w i t h i n 50^?

4

(1^) ATCl:

Or are you pursuing an argument tbat i t

i^e believe i t f a l l s within 50^, Your Honor,

^e sent

5

tbem t o OTJAC; however, tbe l i k e l i h o o d of getting that t o the

6

Secretary of the Army before Monday i s extremely low.

7
8
9

(^1 MJ:

But did tbey go up with the otber s t u f f that tbey

were going t o the Secretary of the Army with?
(^) ATCl:

No, Your Honor.

I think there was over a thousand

10

documents w i t h i n these detainee packets, 1,400 t o be exact, and we

11

asked the defense t o i d e n t i f y the specific doctiments and they did.

12

They gave i t t o us on 2 October.

13

s t u f f tbat went t o OTJAC, I can give you the exact date i f yo^ give

14

me a moment. Your Honor.

^e got them u.p t o OTJAC. The other

15

(i^) MJ:

^as i t some time i n September?

16

(^^ ATCl:

Yes, Your Honor.

17

(^) M^J:

^ e l l , what increases your chances of speed up there

18

i s i f they were already moving t o get i n f r o n t of the Secretary witb

19

some otber related documents, the chances tbat they might be able t o

20

whip a l l that s t u f f together and bring i t i n at the same time i s a

21

l i t t l e better.

So they may be able to get that i n . This issue

309

34811

1

appears t o f a l l within tbe same issues that we're going to be

2

covering Monday.

3

when we address similar issues.

4
5
6

Sowe're j u s t going t o c o v e r t h i s areaon Monday

(^) But t r i a l counsel, thank you f o r bringing that up. I had
overlooked tbat one binder.
(^) Counsel, what I want t o do now i s l i t i g a t e two motions that

7

are pending.

The f i r s t motion concerns a motion t o dismiss by the

8

defense.

9

anyone intend t o present any, on t b i s motion, any evidence i n open

Let me just ask before we go into an open session, does

10

court?

11

c l a s s i f i e d and i t w i l l be handled appropriately.

12

t o present any testimonial evidence or argue concerning c l a s s i f i e d

13

information during t h i s motion?

14

I f i t ' s a document, you can submit a document and i t may be
Does anybody intend

(^) ATC3: The government, s i r , bas c l a s s i f i e d information t o

15

o f f e r on behalf of the motion.

There's a l o t of unclassified

16

information, too, that tbe government i s prepared t o offer tbat w i l l

17

confirm what the OCA declared as...the database printout that's been

18

marked "secret" and properly c l a s s i f i e d "secret". A l o t of tbe

19

c l a s s i f i e d information w i l l be presented based on the fact tbat we'^e

20

going t o be t a l k i n g about these allegations being at Camp Croppers

21

these enemies being at Camp Cropper, which we'll v e r i f y that these

310

34812

1

individuals were a l l at CampCropper at tbat time.

2

government believes that most of i t s argument i s going to be i n a

3

c l a s s i f i e d setting, although some of the documents are mixed as

4

unclassified and c l a s s i f i e d .

5
6

(0) MJ:

Sure, no, that's fine.

So, the

But i s part of your argument

you're going t o have t o t a l k about c l a s s i f i e d information?

7

(^^ ATC3: About c l a s s i f i e d information, yes, s i r .

8

(^) MJ:

9

And defense counsel, you'll probably have to do the

same i f they do that.

So what we'll do tben i s we're going to open

10

up tbe court and when we get into tbat portion, we're just going

11

t o . . . i t ' s good practice f o r bow the t r i a l i s going t o run, i s I ' l l

12

take the f i r s t argument by tbe proponent of the motions whoever bas

13

the burden of proof, and then go unclassified.

14

ready t o go i n t o c l a s s i f i e d information, j u s t ask for the court t o be

15

closed,

16

we'll go t o tbe opponent's argument, s t a r t witb the c l a s s i f i e d since

17

i t ' s already closed and when you're done with the c l a s s i f i e d

18

argument, then we'll open the court and tben we'll go unclassified.

19

I s everyone clear on that?

^ e ' l l go into closed session.

311

And tben when you're

And then wben yoi.i're done,

34813

1

(^) OC:

S i r , I don't believe that the argument that we're

2

going to present i s going to cover any c l a s s i f i e d materials, ^e're

3

j u s t going to r e l y on tbe documents f o r review of the court.

4

(J) MJ:

5

open session now.

6

tbe b a i l i f f can come i n .

7

Okay, f a i r enough then,

^e're going to go into an

So, i f someone could j u s t l e t the b a i l i f f know and

(U) ^e're going t o take a recess i n place.

The court i s i n

8

recess.

^

(1^) [Tbe A r t i c l e 39(a) session recessed at 1425, 12 October 2007.]

10

^^^o^^A^.^

312

34814

Appellate Exhibit 511
Enclosure 3
69 pages
classified
"SECRET"
ordered sealed for Reason 2
and Reason 7 (govemment)
Military Judge's Seal Order
dated 20 August 2013
Stored in the classified
supplement to the original
Record of Trial

34815

UNITED STATESOF AMERICA
Government Targeted Brief
on Courtroom Closures
Manning, Bradley E.
PFC, U.S. Army,
HHC, U S, Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Enclosure 4
29 March 2013

/&pELLATEEXHmiT:5lL

-SS^m

34816

uNcussire
UNITED STATES OF AMERICA
V.
Anderson, Ryan G.
Specialist (E-4), U.S. Army
Headquarters and Headquarters Company
2122d Garrison Troop Support Brigade
Fort Lewis, Washington 98433

)
)
)
)
)
)
)
)
)

Prosecution Motion To
Close Portions of the Court-Martial
For the Receipt of Classified
Information
6 July 2004

RELEF SOUGHT
The Prosecution in the above case requests that the Court close those portions of the CourtMartial of Specialist Anderson for ihe receipt of classified information. The Prosecution
requests oral argument.
BURDEN OF PROOF AND STANDARD OF PROOF
As the moving party, the Government bears the burden of proof. R.C.M. 905(c)(2).
Additionally, the Government bears the burden of establishing a compelling need to close the
proceedings that is narrowly tailored (United States v. Grunden. 2 M.J. 166 (CMA 1977) and
U.S. V. Hershey, 20 M.J. 433 (CMA 1985)).
FACTS
On 6 October 2003, Specialist Ryan Anderson posted a message to a website called Brave
Muslims.com. Brave Muslims.com is a website that caters to anti-American/pro-al Qaida
sentiment. In that posting SPC Anderson stated that "Soon, very soon, 1 will have an opportunity
to take my own end of the struggle against those who oppress us, to the next level", SPC
Anderson then invited other members of Brave Muslims.com to contact him. Ms. Shannon
RossMiller contacted SPC Anderson via electronic mail (email) using a false name. Ms.
RossMil ler is a member a private organization cal led Seven Seas which monitors the i nternet
watching for possible terrorist threats. Ms. RossMiller corresponded with SPC Anderson via
email between November and December 2003. In the correspondence with Ms. RossMiller, SPC
Anderson stated he wished to switch sides or defect from the U.S. Army and join Muslim
extremist forces fighting against the United States. Ms. RossMiller contacted the TBI and passed
to ihem the information she had gathered regarding SPC Anderson.
In late 2003, the Federal Bureau of Investigation (FBI) began an investigation into SPC
Anderson. As partof its investigation, the FBI contacted the Fort Lewis resident office of the
U.S. Army Intelligence and Security Command (INSCOM). In January 2004, Army Counter
Intelligence agents, posing as members of al Qaida, began corresponding with SPC Anderson via
cell phone test messages. After a lengthy period of text messaging between Army Counter

mmm

APPELLATE EXHIBTTjL

34817

Intelligence and SPC Anderson,ameeting was arranged. On9February 2004, SPC Anderson
met with an ArmyCounter Intelligence agent who claimed to beamember ofaterrorist
organization Afier the first meetingasecond meeting was arranged for the followingday. The
second meeting was conducted inaGovernmentsportutility vehicle (SU^),which had been
equipped wiih video and recording equipment. The second meeting,which lasted approximately
an hour.was both recorded and videotaped.
During the teximessaging and at the second meeting with Army Counterintelligence
personnel, SPC Anderson provided information regarding specific vdnerabilities of various
weapons systems including theMIAl andMlA2AbramsTank.Tbeinformation provided by
SPC Anderson was senttothe United States ArmyTankAtitomotiveandArmaments Command
(TACOM)foraclassification review. Approximately twolinesoftexi messages sent by SPC
Anderson and ten minutes ofthevideoiaped meeting contained information which has been
classified as secret by Brigadier General Roger A.Nadeati General Nadeauisthe original
classification authority(OCA)forTACOM
On 12February2004,the accused was apprehended, ordered into pretrial confinement, and
charged Followingapprehension,INSCOM conductedaclassification review of its
investigative and related files. While ihe investigative file was declassified, iwo related files
dealing with INSCOM undercoveropcrativesunderwentaclassification review. Asaresultof
that review,the commander ofINSCOM,Ma^orGeneralJohnF.Rimmons,determined that
information concerning the undercover operatives, as well as the means and methods of
INSCOM undercover operations wereclassified secret.
LAW
ExecutiveOrder
E O 13292
Rules for Court Martial
RCM^06(b)
R C M 905(d)
Military Rule ofEvidence
M R E 505(i)
M R E 505(j)
Case Law
T^^^^^fo^.^2C^R4l(1956)
^^^^^^^^^
US v Gninden 2 M J I16^CMA1977)
USvHershev,20MJ433^CMA19^5)
GlobeNewspa^erCo V Superior Court ofMassachusetts,457 US102U9^2)
Press-Enten^riseCo.vSuperiorCotirtof California, 464 US501^1984)

^m^^^l^^^^
^

34818

1^^^^^
WFfNESSES^E^IDENCE
The Prosecution does not request any witnesses The Prosecution requests that the Court
consider the enclosures to this motion
ARGUMENT
In accordance with the discussion section of R.C.M.806(b),acourtmartial may be
closed withotit the consent ofthe accused when it is done in accordance with M.R.E.505(]).
M.R.E 505(j)(5)authorizesamilitaryjtidgctodoseacouri-martial "during that portionofthc
^-presentation of evidence that discloses classified information." The analysis io M.R.E. 505(])
indicatesthatMRE.505(i)isprincipallvderivedfromU S v Grunden andU.S v Herscy.
Grunden and Hcrsevprovideaframework for analyzino^ when, under the l^^and6^^
Amendment.s, it is appropriate tocloseacotirtmartial The Government'smotion will first
address the 6^^^Amendment and ihen thel^^Amendment.
The6^^Amendment to the United States Constitution states, in part, thai "in all criminal
pro.secution.s, the accused shall enjoy the righttoaspeedy and public trial" Despite the
languageof the 6^^Amendmeni, couris have longrecognized that "the right toapublic trial is not
ab.solute" Grunden,at 120,also United StatesvBrown.22CMR4l(l956) An accused's
lighttoapublic trial can give wayin order to protect the identityofan undercover law
enforcement officer, to preserve the orderly execution ofatrial,and ioreceivecla.ssified
information. Grunden, atl21note6.
Inaccordance withUnited Statesv.Grunden,beforeacotirtmartial can beclosed the
Government must demonstrate thatclosingthe trial is necessary to prevent thedisclosure of
clas.sified information Additionally, the Government must narrowly tailor the closure to ensure
public access to as much ofthe trial as possible without endangering classified information.The
couri in Grunden su^^ests that militarv iLid^es conduct "at^rdiminary hearing which is closed to
the public" to determine whether the Government has met its burden.
As enclosures to this motion ihe Government has providedacopy of declarations made
byMajorGcncialJohnP.l^immonsandBrigadierOencral Roger A.Nadean. Both General
l^immons and Nadeau are original classificationauthorities,aLithorized toclassified information
up to the .secret level. TheGovernment anticipates introdncingtheclassified information
described in General Nadeau'sdeclaration in its case in chief. Theclassified evidence will
include: approximately twolinesoftexi message from SPC Anderson to Army Cotinter
Intelligence agents; approximately ten minutes ofaone hour videotape whereSPC Anderson
discusscsclassified information; six photos demonstratmg damage done toMlAlAbramsTanks
byaspeciiic weapons system; and part of the testimony of one witness, Mr.JohnRowe. Mr.
l^owe will testify as to the truthfulnessof statements made by SPC Anderson. It will be
neces.saiytodose the coLirt-martial when Mr Rowe testifies regarding the truthfulness of
clas.sified statements made by SPC Anderson. Mr. Rowe will also testify regardingthe photos of
damaged and destroyedMlAI AbramsTanks. The Government does not anticipate introducing
any evidence regarding General l^immons^ declaration but requests that the cotirt close the cotirt

lll^^l^

34819

llHl^ll^^l^^
martial during any cross examination conducted by defense counsel which delves into ihe areas
described in General l^immons'declaration.
Through the enclosed declaraiions,which have been made under penalty of perjury,the
Government has established that the information contained in ihe declarations isclassified.
Accordingto ExecLitiveOrderl3292 which further amended Executive Order 12958,as
Amended, Classified National Security Information, four prereqtiisitesmnst be met in order to
originally classify information:
(1) An original classification authority is classifyingthe information:
(2) The information is owned by,prodLiced by orfor, or is underiheconird of ihe
United States Government;
(3) The information falls within one or moreofthecategoriesofinformationlisted in
section l.4ofthis order; and
(4) The original classification authority determines that ihe Linatithorized disclosure of the
information reasonablycotrld be expected to resultin damage to the national security,which
includes defense against transnational terrorism,and the original classification authority isable
to identifyordescribe ihe damage.
Sectionl.4ofExecutiveOrderl3292 states:
Information shall not be consideredclassifiedunlessitconcerns:
(a) military plans, weapons systems, or operations;
(b) foreign governmentinformation;
(c) intelligence activities(induding special activities),intelligence sources or methods, or
cryptology;
(d) foreign relations orforeign activities of theUnited States, including confidential
sources:
(e) scientific, technological, or economic matters relating to the national security, which
includes defense against transnational terrorism;
(f) United States Government programs for safegLiarding nuclear materials or facilities;
(g) vulnerabilities or capabilities ofsystems, installations, infrastructures, projects, plans,
or protection services relatingto the national sccurity,which includes defense against
transnational terrorism; or

llll[^ll^^^^^

34820

^1I^^^I8^
(h) weapons of mass destruction.
Each ofthe four prerequisites for theclassification of information is addressed in General
Rimmons'and General Nadeau'sdeclarations. Asnotedin UnitedStatesv Grunden.the "initial
review by the trial judge is notfor the ptirposeofconductingadcnovo reviewofthe propriety of
agiven classification decision All thatmust be determined is thatthe material in question has
been classified by the proper authority in accordance with the appropriate regulation....The
sole purpose of the review is to protect the accused right toapublic trial by preventing
circumvention ofthatrighiby the mere utterance ofaconclusion or blanl^et acceptance of the
govemment'sposition without the demonstration ofacompellingneed." Grunden at 123.The
information contained in General l^immons'and General Nadeau'sdeclarations were properly
classified in accordance with Executive Order 13292 by individuals atiihorizedtoclassify
information.
In addition to establishing that the informationinquestionisclassified, theGovernment must
also nariowlytailor theclosure of the court-martial to insure the public has access teas much of
theproceedings as possible while stillprotecting national security. The Government intends to
iniroduceall of itsclassified information inasingle closed session. During thatclosed session
witnesses who have already testified regarding unclassified information would then retal^e the
witness stand to provide information regardingclassified information. UnitedStatesv. Grunden
recommends this method ofbifurcating witness tesiimony,stating "this bifiircated presentation
ofagiven witness'testimony is the most satisfactory resoltition of the competingneedsfor
secrecy by the government, andforapubhc trial by the accused." Grunden atl23. As
previouslydiscussed, attrial the Government will seek tointrodtice the surveillance videofrom
the second meeting, ai least fifty minutes of which are tmclassified. The Government has
redacted the classified portions of the surveillance video to allow the public access to as mtich of
the proceedings as possible. The Government would seek to close the cotirt martial for the
classified portionsofthe stirveillance video. Similarly,as the vast majority of the text message
statements are unclassified, the public would be allowed access to ihe text messages with the
exception ofthe two classified messages. The Government does noised^ the closure of the
entire trial against SPC Anderson or even the entire testimony of any of the Government's
witnesses, rather the Government only sed^s that the trial be closedforthe receipt of classified
information.
In addition to an accused'sright toapublic trial,the United StatesSupreme Cotirt has stated
that the public hasal^^^Amendment right to be present at criminal trials. Globe Newspaper Co.
V SnperiorCourtofMassachusetis,457 U.S. 102(1982) and Press-Enterprise Co.v.Superior
Court ofCatifoinia,464US50l ^1984) In UnitedStatesvHershev20MJ 433 il985) the
Court ofMilitaryAppeals established that the Supreme Court's^daration regarding the
public'sright tobe present at civilian criminal trialsalso applied tocourtsmartial. In Hershey
the court dcscribedafour part test to determine whether the public could be excluded froma
courtmartial. Thctestdcscribedin Hershey was:(l)the party seeking clostire must advance an
overriding interest that is lil^ely to be prejudiced (2) the clost^re must be narrowlytailored to
protect that interest (3) the trial court mt^st consider reasonable alternatives to clostire, and (4) the
court must make adequate findings supportingtheclostire to aid in review. Hershey at436.

34821

^^1^^^
The first two prongs of the Hershey test are virtually the same as the test under Grunden.
Thus, the Government relies onits argument above regarding the first two prongs under Hershey.
The third prong under Hershey requires the court to consider reasonable alternatives toclosin^
thecourt-martial. In the caseatbar there are not reasonable alternativestoclosingthecourtmartial The evidence the Government intends to introduce isclassified as secret. Inaccordance
^ith Executive Order 13292, Sec 1.2(a)(2) secret information is, by definition, information
whose unatithorizeddisclosure"reasonably could be expected iocause serious damage to
nationalsecurity" The onlyway to avoid prejudicing an overriding Governmental interest is by
closingthe courtmartial The final prong requires the trial couri to make adequatefindingsto
support the closure to aid in appellate review. The Government suggests that in accordance with
R.CM 905(d)the court mal^e essential findings that state ataminimum that: the information
that is the subject ofthis motion was properly classified by General Rimmons and General
Nadeati; disclosure of the information would be harmftilio national security; the cotirt should
describe what sessions ofthecourt-martial will beclosed; and there is no reasonable alternative
to closing the court due to theclassified nature of theevidence.
CONCLUSION
For ihe foregoing reasons, the Prosecution requests that the Court grant its motion to
closethec^^tirt-martial in United Statesv Andersonforthe receipt of classified information.

-=r^«^<
TIMOTHY C. MACDONNELL
MAJ, JA
AssistantTrial Counsel
2ENCLS
1. Declaration of Major General F, Kimmons, dated 6 May 2004. CLASSIFIED
2. Declaration of Brigadier General Roger A. Nadeau, dated 29 June 2004. CLASSIFIED

miAssra

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

34822





Government Targeted Brief
on Courtroom Closures



Enclosure 5



29 March 2013



Encl 5

EXHIBITS ll
PAGE

PAGE OF PAGES

. . 34823
UNCLASSIFIED

UNITED STATES ARMY TRIAL JUDICIARY
FOURTH JUDICIAL CIRCUIT
FORT LEWIS, WASHINGTON

UNITED STATES

ORDER TO CLOSE CERTAIN
v. PROCEEDINGS

3:0 RYAKI G. ANDERSON
Army atlonal Guard,?
A Co., 1/303 AR Reg







Fort Lewis, WA 98433

1. By written motion ?led on 3 August 2004, the government requests that the court order the
trial proceedings closed to the public only while certain sensitive information is being
introduced or is the subject of examination or argument to ensure that the information
specified in the govemment?s motion is not disclosed to the public (Appellate Exhibit
The defense filed a brief in opposition on 6 August 2004 (Appellate Exhibit XIV), arguing that
the government failed to meet its heavy burden under the Sixth Amendment. Also. the
government made an oral request fora similar order to close the proceedings during the
introduction of classified evidence, the examination of witnesses regarding classi?ed
evidence, and if counsel use classi?ed evidence or describe it during argument The defense
does not object to closure on a limited basis as necessary to protect classi?ed information. A
session under Article 39(a) UCMJ was held on this matter on 9 August 2004. The parties
were given an opportunity to present evidence and make argument.

2. Findings of Fact:

a. The government intends to introduce into evidence certain items of evidence that
have been deemed classi?ed. This information is not within the public domain.

b. As the detailed militaryjudge, the undersigned reviewed the evidence in camera in
the resence of the Court Security Officer, as well as the classi?cation certification for the
evr ence.

c. My review of the evidence and the acoompan ing security classification
declarations by Major General Kimmons and Brigadier eneral Nadeau show that the
government proved by a preponderance that the evidence in the form of documents,
photographs, and testimony sought to be introduced which has been marked as classi?ed at
properly classi?edby- an authorized .original_classific_a,t_ion.
applying the standards of Executive Order 12958, as amended by Executive Order 13292,
and departmental regulations.

d. Public disclosure of the classi?ed evidence in this case would harm the national
security of the United States in the manner descrbed in the declarations by Major General
Kimmons and Brigadier General Nadeau. Speci?cally, disclosure of this information would
enable an enemy or any other group or person to learn of speci?c vulnerabilities of critical US
weapons systems that have not been made public, and would provide a means of defeating
these US weapons systems now in use on the battle?eld in lraq and Afghanistan. Those

UNCLASSIFIED

APPELLATE



weapons systems are manned by smdicecrs now insa?gives would be at great risk

should the information be disclosed to the public.

e. The classified information soughtto be introduced is critical to the government's
prosecution of this case. The purpose of the evidence is to prove that the means allegedly
described by the accused to defeat US weapons systems to those he allegedly believed
were agents of al Qaida were true.

f. Mr. Rene Gonzalez, a Department of Army expert on tactical wheeled vehicle
survivability, testified on 9 August as to the sensitive information in the form of documents,
photographs, and testimony for which the government seeks the closure order. This
information was subjected to a classification review but was not classi?ed. It is highly
sensitive information about current vulnerabilities of the weapon system identified by Mr.
Gonzalez during his testimony. This weapon system is a critical one on the battlefield in Iraq.
Mr. Gonzalez described the Army's current efforts to resolve the vulnerabilities of this system
to minimize future losses of US lives in combat theaters. While Mr. Gonzalez testi?ed that
some of the vulnerabilities are known by defense contractors who work in this area, the
vulnerabilities have not been disclosed to the public.

g. As with the classi?ed evidence, the sensitive information is critical to the
government?s prosecution of the case, and will serve the same purpose as that described in
subparagraph e, above.

h. On 19 August 2004, the Acting Secretary of the Army invoked a claim of privilege
under Military Rule of Evidence 506 with respect to the sensitive documents, photographs,
and testimony described by Mr. Gonzalez and which the government intends to introduce at
trial. The declaration of privilege covers the same evidence the government described as
sensitive in its brief. The Acting Secretary of the Army is authorized as the agency head to
invoke the privilege. Secretary Brownlee determined that public disclosure of the infomwation
would imperil the lives of soldiers and be detrimental to the public interest. His determination
was based upon personal review of the sensitive evidence, legal advice from The Judge
Advocate General, and a declaration of the risks of disclosure from the Deputy Commanding
General, I Corps and Fort Lewis (App Ex XXV through The invocation of the privilege
satisfies the requirements for such an invocation under Military Rule of Evidence 506.

3. Discussion: Military Rule of Evidence 505 discusses the rule of privilege for
government classified information. Military Rule of Evidence 506 is the rule of
privilege for government information other than classified information. The category
of evidence often described as ?sensitive" is not covered by either rule, but is
recognized as subject to protection in certain circumstances by case law
United States v. Hershey, 20M.J. 433 (C.M.A.1985).

The accused enjoys the right to a public trial under the Sixth Amendment.

- .._including the media. has a qualified right underthe First - .

Amendment to attend criminal trials (Richmond Newspapers v. Virginia, 448 U.S.
555 (1980)). The right to a public trial is included in the Manual for Courts-Martial at
Rule for Courts-Martial (RCM) 806. Case law interpreting the First and Sixth
Amendments, and RCM 806, show that neither the accused?s nor the public?s right
is absolute. A military judge may, if necessary, close portions of the trial
proceedings to the public provided the government makes an adequate showing of
necessity and the closing is tailored to minimize the closed sessions to the absolute
minimum necessary (United States v. Grunden, 2 M.J.116 (C.M.A. 1977), and Rule
for Courts-Martial 801).

UNCLASSIFIED

2

. . 34825

UNCLASSIFIED

To support a closed proceeding, the government must first make a
compelling showing that closure is necessary to prevent disclosure of information
which must be protected from public disclosure. Closure is only necessary when
alternative means of presenting evidence are not available. The govemment
discusses possible alternative means in its brief and makes a compelling argument
why they would not work. For example, if the government is limited to showing a
witness a classified or privileged exhibit but not able to discuss its contents in open
court because spectators were present, that would deprive the trial counsel of a
critical means of proof, and deprive the defense counsel, the members, and the
military judge the opportunity to ask the witness questions about the exhibit. None I
of the matters for which protection has been claimed by the government can be
used by the government without testimony. They are not self-explanatory or self-
authenticating. There are no alternatives to protecting the classified and privileged
information from public disclosure during trial except by excluding the public for very
limited periods during the trial.

The court has carefully applied the balancing test described in Grunden and
later military and federal cases in analyzing the government's request. Even though
the defense did not object to closure of the trial during receipt of classified
information, I have applied the balancing test nonetheless in analyzing whether the
proceedings may be closed during receipt of classified and the sensitive information
for which the privilege under MRE 506 has been invoked in order to protect the
public's First Amendment right of access to courts-martial.

4. Conclusions of Law: Based upon the foregoing, I hereby conclude:

a. The government has met its burden of proving that evidence in the form of
documents, photographs, and testimony that has been properly classified and similar
evidence that is the subject of a properly-invoked privilege under MRE 506, and which is
also sensitive information, will be introduced at trial as evidence critical to the government?s
case-in-chief.

b. The government has proven by a preponderance thatthere is a reasonable
danger that presentation of these materials before the public will expose military matters
which in the interest of national security should not be divulged (Grunden, 2 M.J. at 122).

c. The government has delineated those portions of its case that involve these
materials.

5. Order of the Court: The trial proceedings in the above-captioned case will be closed
to spectators during the introduction of classified evidence, and evidence which was

described?assensitive in

506 has been invoked. Closure will occur only during the portions of a witness's
testimony in which it is reasonably expected that the protected exhibit or testimony will be
displayed or discussed, when counsel will make direct reference to the contents of a
protected exhibit or testimony during argument or in questioning any witness and cannot
do so without discussing the testimony or evidence in open court, or when the military
judge must discuss the exhibit or testimony on the record and cannot do so without
disclosing the protected contents in open court. The proceedings will be reopened to the
public at the earliest opportunity. Therefore, if a witness is to testify on both matters in
which the public must be excluded and matters during which the public may be present,



3

0 0
UNCLASSIFIED

trial counsel will conduct direct examination in a closed session on only the matters in
which the public must be excluded, followed by cross?examination on those matters only
in the closed session. Trial counsel will then conduct direct examination in open court of
that witness on matters that are not subject to closure, followed by cross-examination in
open court on the same matters. While this procedure may require counsel to depart
from normal practice of complete direct examination of a witness prior to cross-
examination, the manner directed in this order will not impede the fair administration of
justice and will ensure that the proceedings are closed only as absolutely required.
Counsel are further directed to notify the judge in advance before eliciting classified or
privileged evidence in open court, or discussing same. Finally, trial and defense counsel
will advise the militaryjudge before arraignment as to which parts of the record and
including allied papers, should be the subject of a protective order in the record
0 na . -

DONE THIS 267" DAY OF AUGUST 2004 AT THE FOURTH JUDICIAL CIRCUIT, FORT
LEWIS, WA.

DEBRA BOUDREAU
Colonel, JA
Chief Circuit Judge

UNCLASSIFIED

34827

UNITED STATESOF AMERICA
V.

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

Government Targeted Brief
on Courtroom Closures
Enclosure 6
29 March 2013

PAGE

P^.

34828

UNCLASSIFIED
DEPARTMENT OF THE NAVY
NAVY-MARINE CORPS TRIAL JUDICL^RY
CENTRAL JUDICIAL CIRCUIT
GENERAL COURT-MARTIAL

U N I T E D

S T A T E S

COURT ROOM PROTECTIVE
ORDER

Matthew Diaz

11 MAY 2007

LCDR, JAGC, USN
1. This ORDER supplements the Closure Order issued ihis date.
2. Pursuant io ihefindingsand conclusions in this court's Closure Order, ihe courtfindsthai an
additional Protective Order is required io address ihe orderly and secure process of court
proceedings in which classified information might be present and might be published or
otherwise disclosed. This Protective Order is issued by the presiding military judge, acting under
his supervisory authority io ensure a fair and expeditious trial, while protecting ihe national
security interests of ihe United States and pursuant io M.R.E. 505. The procedures set forth in
this Protective Order apply in addition io those previously set forth in ihe Protective Order and
Protective Order Modification #1 (Appellate Exhibits IV and X), ihe terms of which are
incorporated herein by reference.
3. In determining ihe protective measures required in ihis case, ihe court has carefully reviewed
the physical environment in which proceedings in ihis case are io be held, the needs of the parties
for access io classified information and ihe need for public access io ihis court-martial. The
court has taken judicial notice of and fully considered the provisions of ihe Department of Navy
Information Securiiy Program (SECNAVINST 5510.36A of 6 October 2006 and M-5510.36 of
June 2006). The court has balanced the national security needs and protective policies of
goveming regulations against therightsof ihe accused to present an adequate defense ai a public
trial, and ihe need for orderly proceedings.
4. The court concludes thai ihe following requirements are fully protective of information
classified ai ihe SECRET level and thai no lesser means than those set forth below would
adequately safeguard ihe classified information at issue in ihis case. While more stringent
^measuresjxmld perhaps provide a larger margin for error, tiiat additional caution would provide
no additional actual securiiy. As a result, more stringent measures such as prohibiting the
presence of properly protected classified information in open sessions of court would be an
unjustifiable limitation on the accused'srightio present an adequate defense ai a public trial and
would impede ihe orderly proceedings in ihis case. The following protective procedures are,
therefore, ihe least inimsive of ihe accused'srightsas is possible under ihe circumstances and ihe
implementation of these measures will reduce the number and duration of closed sessions.

ilMCLASSIFIED

AI?EliATEEXmT_lXX&
PAGE L O F H
APmOEOPAGE

34829

^^^^^^^^^^^

5. By copy of ihis Protective Order, ihe CSO is directed io immediately inform ihe court of any
change in circumstances thai, in his opinion, necessiiaicsamodification of ihe security posture
in,or immediately adjacent io. Courtroom No.Iduring ihe proceedings in ihis case.
6. Presence ofclassified Documents. Open sessions of court are conducted in an open
courtroom environment in which personnel are permitted to be present thai do noi have
appropriate clearances or access toclassified information. Therefore, classified documents shall
only be brought inio an open session of court if thai document is required for reference during
thai session. Since classified material will be used during some open sessions, ihe following
requirements are ordered:
^

Central Circuit local mies for decorum in ihc courtroom shall be affirmatively and strictly
enforced during all sessions of court. All photographic, sound or video recording
equipment, any other recording device, cell phones, and all other electronic
communication devices, are prohibited from entering ihe courtroom. Pagers or other
electronic devices thai are noi capable of recording or transmitting are permitted in ihe
courtroom, bui must be cleared for entry by ihc CSO and must be placed in silent mode.

^ All classified documents must be in ihe control of properly cleared personnel atall times.
^

Any person carrying classified information inio an open session of court mustfirstnotify
ihe CSO of ihe number of documents and classification level of any such documents.

^ All classified documents must be properlymarked in accordance wiih regulations
goveming ihe classified information contained in ihe document.
^ Classified documents may be carried inio ihe courtroom, bui must be contained ina
briefcase or closed folder.
D All classified documents must be protected by affixing ihereioaclassified document
cover consistent wiih regulations goveming ihe classification level.
^ Wh^n not in active ose at connsel table, ihe podium or witness stand, classified
documents shall remain insideaclosed briefcase oraclosed opaque folder. When being
used by counsel orawiiness, ihc document must remain covered, except ihe cover may
be raised as needed by counsd orawiinessio see ihe documeni'sconieni. However,
when ihe cover is raised, ihe classified document must remain fiat on counsel'siable, ihe
podium, or witness stand.
^ The CSO shall ensure that no classified document in use during any open session is
visible from ihegallery. If necessary,gallery seating will be removed toadisiance from
ihe bar sufficient toprevent inadvertent disclosures by counsel during use of classifted
information ai counsel table and sufficient toprotect against any intentional attempt bya
gallery member to gain visual access toclassified information. If, in ihe opinion of ihe
CSO, there is insufficient distance io ensure security of classified information aicotitisd
table from persons in ihe ga11ery,ihe CSO shall immediately so inform ihe court.
^^^^^^

^^^^^

^^^^^^^^^^^EO

^l^tt^^EEX^^t^^^

^^^^^^^^..^
APPE^OEOPAGE

34830

UN0LA99IF^E0
D Ifaclassified document is referred to, offered into evidence, or otherwise utilized during
an open session, iimusiremainunderaproieciive cover sheet and may only be referred
to by exhibit number, and, if necessary,by its classification level and ihe unclassifted title
of the document. No disclosure or discussion ofclassified material contained in any
document is permitted during open sessions of court.
^

At ihe conclusion of any open session of court during which dassified information was
present, ihe CSO will verify wiih ihc parties thai all classified information is accounted
for, secure, and properly removed from ihc courtroom. The parties are individually
responsible forthe proper handling and storage of classified material in iheir control.

^

The CSO shall be present in ihe courtroom during all open and closed sessions of court.
He shall ensure thai there isavisual mechanism, such asaremoiely activated signal light,
by which io notify ihe militaryjudge in ihe event ihe CSO detects tiiai an inadvertent
disdosure of classified information is imminent or has occurred.

7. Discussion of Classified Information. No classified discussion may occur during open
sessions of court. If any party deierminesadiscussion of classified information is necessary,ihai
party shall rcquesiarecess oraclosed session of court. The latter shall be requested in
accordance wiih M.R.E. 505 and ihc prior orders of ihis court.
8. Closed Session Procedures.
a. In the event ihe presiding military judge direcisadosed session, all persons noi on the
approved access list shall depart from ihe courtroom and the passageways immediately adjacent
thereto. Arecess will ordinarily be usedto facilitate clearing ihe courtroom ofunauthorized
personnel. Thereafier,ascnirywiihacurrcnt copy of the access list will be posted atthe main
entrance io Courtroom No.1. Underthe supervision ofthe CSO, thai sentry may adnut only
those persons presenting positive identification and who arc listed on ihc access list. Other
cnti:anccsiotiiecourtroom will he secured from ihe inside, allowing emergency egress only. If
other entrances cannot be so secured, addiiiond sentries shah be posted toprevent access via
these entrances. All personnel seeking admittance tothe courtroom wift be directed tothe main
entrance. No person may be permitted io loiter in ihc passageways immediately adjacent io
Courtroom No.lduring dosed sessions unless that person is on the access list.
b. Prior iocommencementofadose session, ihe CSO will verify thai ihe unclassified recording
system has been disabled by ihe court reporter.
c Priorto commencement ofadose session, ihe CSO will verify thai aft external audio and
video feeds have been disabledand witi provide an access list tothe military judge andto
counsel for both parties, which list will be inserted into ihe record.
d hi ihc event counsel orawiiness requires ihe use of computer media io display classified
informaiion the proponent counsel shall coordinate use of such media with ihe CSO, who must
first authorize use of any electronic equipment inside ihe courtroom.

UNCL^99^^IE0

^^ttAlEEXUl^lI^l^
^ A ^ ^ ^ t l E ^
APPE^OEDPAGE

III^^L^^I^IOl^

34831

e When satisfied thai ihe actions set forth in paragraphs a. fhrdughc.arecompleied, die CSO
shall inform ihe military judge thai conditions foradosed session have been md.The military
judge will then call ihc closed session to order.
f At the conclusion ofaclosed session, ihe CSO will ensure thai any classified elecU-onic
system, including media, is properly secured. He wift also collect any notes made bythe trial
counsd and ihe militaryjudge and review those notes for ihe presence of any classified
information. If these notes contain classified information, ihc CSO shaft have those notes
properly secured or destroy ihe notes afier consultation wiih ihe drafter. The CSO shaft also
make arrangements wiih the defense for ihe review and proper disposition of any classified
defense notes. Fina11y,ai ihe conclusion ofadosed session, ihe CSO shall verify thai all
classified documents have been collected and secured as set forth above, thai is, removed from
ihe courtroom to proper storage, or placed inside briefcases or closed folders on counsel table.
When all classified information is properly secured, ihe CSO shaft advise ihe militaryjudge thai
ihe courtroom is prepared for an open session.
g. Atarecess of court prior iomemhers'ddibcraiions, ihe CSO shall inventory all dassified
exhibits thai have been admitted inio evidence and thai are tobe provided tothe members during
their closed session deliberations. During ihe open session priorto deliberations, ihe senior
member shall be provided classifted and unclassifted exhibits and he willbe the custodian of all
exhibits used by ihe members in closed session. Atthe conclusion of deliberations and upon
retuming io an open session ofcourt, ihc seniormember will retum all exhibits tothe CSO,who
shall inventory and verify thai all classifted material is accounted for and properly secured.
9. Storage of Classifted Information
a. The CSO has approved ihe storage of dassifted material by counsel in iheir local containers.
b. Storage of ihe original record of trial shall be stored in ihe safe labeled ^^Diaz Records" in
RoomB 204. Classified notes of ihe military judge shall be stored in this safe inaseparate
sealed envelope marked "Military Judge Notes." No other material may be stored in ihis safe
without permission of ihe court.
c. The CSO will hold the combination to ihe safe labeled "Oia^ Records" and will control access
io it.The Region Legal Service Officer (RLSO)SccuriiyManagerwift be provided the
combination for use in an emergency,bui, priorto opening ihe safe, ihe Securiiy Manager must
attempt io contact ihe CSO. In ihe event contact is noi possible, ihe RLSO Securiiy Manager
must, as soon as possible, contact ihe CSO andreport ihc nature of ihc emergency and any action
taken. The CSO will inform ihc court atthe earliest opportunity.
Entered ihisll^^ Day ofMay 2007.
DanidEO'Toolc ^
^
Capiain,JAGCorps,USNavy
Circuit Military Judge

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

^^^^22^^
APi^^OEOPAGE

34832

UNITED STATESOF AMERICA
Government Targeted Brief
on Courtroom Closures
Manning, Bradley E,
PFC, U,S, Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Enclosure 7
29 March 2013

Soc\ "7 -to
APPELLATE EXHIBIT €> I \
PAGE REFERENCED:
PAGE
OF
PAOiS

34833

UNCLASSIFIED

RECEIVED
CENTRAL
CIRCUIT

DEPARTMENT OF THE NAVY
GENERAL COURT-MARTIAL
-P J.'!! 01
NAVY AND \U.RINE CORPS TRIAL JUDICIARY
CENTRAL JUDICIAL CIRCUIT

U N I T E D

t? 35

S T A T E S

Matthew M. DIAZ
LCDR, JAGC, USN

GOVERNMENT MOTION FOR
APPROPRIATE RELIEF PURSUANT TO
MILITARY RULE OF EVIDENCE 505

1. Nature of Motion:
Pursuant to Rule for Court-Martial 906 and Military Rule of Evidence 505(e), the
government moves for arraignment and a preliminary Article 39(a) session to consider matters
relating to classified information that may arise in connection with the trial. Specifically, the
government requests that the military judge issue a protective order under Military Rule of
Evidence 505(g)(1) and establish timing for discovery and notice under Military Rule of
Evidence 505(h). As the movant, the government has ihe burden io show that it is entitled to
relief by preponderance of the evidence.
2. Facts:
In January of 2005, Ms. Barbara Olshansky received a card in an envelope bearing a
return address at the Joint Task Force in Guantanamo Bay, Cuba. A determination was made
that the information contained on the pieces of paper was and is classified at the
SECRET/NOFORN level.

Subsequent investigation into the origins of the pieces of paper received by Ms.
Olshansky determined that they contained information from the Joint Detainee Information
Management System (JDIMS). This system is a classified web based computer program, which
ia UIWWOL-^HJIC

LlUCU^ll

I

, 1 . or-/'^or-"T~'T..LUC OLvV
1 llilCUlCl

.r».i r i . , . . -K T _ , . . .
1 lULUCUi
IVWULCl
INCIWUIIV

UNCLASSIFIED

i

/r'Tr»r'r*\Tr-"-r^
\0 ll LjlMNl^l
).

APPfiiATE EXHIBIT J C _ _
PAGE J
Of ..r3S
.iPPEWDED PARF _ ;q

34834

^^^99IFIE0
The convening authority referred charges in this case toageneral court-martial on5
January2007. The information disclosed by the accused is still classified at the
SECRET/NOFORN level
3. Authority:
Military Rule ofEvidence 505
4. Discussion:

ThegovernmenimovcspursuanitoMilR Evid.505(e)forapreliminaiy session under
Article 39(a)to consider matters relating to classified information thai may arise in connection
with the trial.
a. Pre Trial Hearing
After referral of charges,"any party may move forasession under Article 39(a) to
consider matters relating to classified information." Mil.R.Evid 505(e). Afier suchamotion,
"ihc military judge promptly shall holdasession under Article 39(a) toestablisb the timing of
reqt^ests for discovery,the provisions of notice under subdivision (h),and ihe initiation of the
procedure under subdivision (i) " /^.
The government requests this hearing io establish defense notice requirements under Mil.
R.Evid.505(h)andatimeline for any proceedings that may be necessary under Mil.R.Evid.
505(i)
Mil.R.Evid.505(h)requires that the defense provide the trial counsel notice ifthe
defense reasonably expecistodisclo.se or cause the disclosure of classified material in any
manner during the court martial process. The government requests ihis session so that the
government can ensure that the proper documentation is obtained and requested in order thai the
courtroom can be properly closed for any defense requested disclosure for the purpose of
protecting classified information.

^

^L^^^I^^^O

APP5iiA)^^XII1^1
PAGi
^

^

^^^DD^^^

0NCLA99^FIE0

34835

Based on the inherent difficulty in dealing with classified information during the courtmartial process,the government requests that this Article 39(a) session be held as soon as
practicable to establish ihe requirements under Mil.R. Evid.505(h)and505(i).
b Protective Order
The government also moves pursuant to Mil.R.Evid.505(g)(l)for the issuance ofa
protective orderto govern the handling of classified information in this case.
Mil.R Evid 505(g)(l)requires the court, upon the request of the government, io issue an
order "to guard against the compromise of information disclosed to the accused." Mil.R.Evid.
505(g)(l)makes explicit the court'sauthority to issue protective orders for classified
information Mil R.Evid.505(g)(l)further provides that the protective order may include the
following provisions:
(1) prohibiiing ihe disclosure of ihe information except as authorized by the
militaryjudge;
(2) requiring storage of material inamanner appropriate for the level of
classification assigned tothe documents to be disclosed;
(3) requiring controlled access to the material during normal business hours and at
other times upon reasonable notice;
(4) requiring all persons to cooperate with pcrsot^nel in any it^vestigations which
are necessary toobtainasecurity clearance;
(^)reqt^^iring the mdntenance of log^rec^rdin^ access by all persons authorized
bythe militaryjudge to have accessto the classified information in connection
with the preparation of the defense;
(6) regulating ihe making and handling of notes taken from material containing
classified information; and
(7) requesting the convening authority authorize ihe assignment of government
security personnel and the provision of government storage facilities.

3

UNCL ASS I FIED

APPELATE EXHIBIT

%

' ™ PA^^Z.

34836

1^^CLA99^FI^D
Aproicciivc order issued by ihc military judge has the same force and effect as other

orders issued by ihe military judge,and violations ofaMil.R.Evid.505(g)(l)may be punished
in the same manner thai violations of other court orders are enforced.
Here,ihe government seeks the issuance ofaprotective order seeking the terms set forth
above,as well as other measures which it believes is necessary toprotect the classified
information ai issue in this case. Aproposed protective order is attached
5 Attachments:
a. Charge Sheet
b. AffidavitofMr. Paul Rester
c. Proposed Protective Order
6. Oral Argument:
If ihis motion is opposed by ihe defense then ihe government requests oral argument.

)FFMAN
^JAGCUSN
TrialCounscl
CERTIFICATE OF SERVICE
I hereby certify that a copy of this response was served on Detailed Defense Counsel in the
above captioned case on

January 2007.

i.^UJ^
J R. HOFFMAN

4

APPELLATE EXHIBIT

PAGE_6L_0F_^_;_

UNCLASSIFIED

- ^aT-

34837

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 Courtroom Closures
Enclosure 8
29 March 2013

B^c^ ^ ^0
APPELLATE EXHlBlT_5ii
PAGE REFERENCED:
PAGE
OF
PAGES

34838

GENERALCOURTMARTIAL
UNITED STATES NAVY
SOUTHWEST JUDICIAL CIRCUIT
SANDIEGO, CALIFORNIA
UNITED

STATES

^

3May2005

^
)

V.

)
)

ORDER TOCLOSE CERTAIN
TRIAL PROCEEDINGS

^

ANDREWR.LEDFORD
LT U.S.NAVY

)
^

Bywritfen notice, fhedefenseseekstointroduceclassifiedinformationduring
closed sessionsoffhistrial Bywritten motion, asamendedorallyduring
argument, fhegovernmenfrequesfsthatthecourtorderthetrial proceedings
closed to fhepubliconlywhilecertain classified infomrationisbeingintroducedor
is the subject of examination or argument to ensurethat the information specified
inoralargumentandintheaftachedappellateexhibitsisnotdisclosedtothe
public. The defense does not object fo closure onalimited basis as necessary to
protect classified information. Two sessions underArticle 39(a)were held on this
matter. The parties were given fhe opportunity to present evidence and make
argument
Findings:
1

Boththegovernmentandthedefenseintendfointroduceintoevidence
certain items thaf have been deemed classified This information is not
within the public domain This evidence includes the names of protectedidentity witnesses, fhe identity of participants in certain operations, and
discussionsorviewingsoffacfics/rolls/posifions/locations, aswell asthe
identification of the alleged victim. The defense additionally seeks to
introduce classified information on sentencing that includes other direction
actions in which fhe accused was involved, his current duties, the
backgroundofthealleged victim,andvideosofotheroperations This
order addresses only the evidence to be offered on the merits. Thecourt
specificallywithholdsanyruling regarding evidence tobeofferedduring
l^^^hfencingto^allowlhepartiestocomplete^tbeii^prepar^tiorts^foi^
presentencing.

2

Specifically, fhe government will seek to present to the members
testimonyfrom identityprotected witnesses, as well as testimonyfrom or
regardingwitnesseswhosemerepresenceonorassociafionwith
particularmissionsisclassified Thegovernmentdoesnotobjectfothis

34839

being presented in closed session, but seeks fo safeguard their identity
from public view.
3

Thegovernmenfwillalsoseektoofferintoevidencethewritten
stafementsallegedlymadebyfheaccused While thegovernment
intended to offer redacted versions of the statements to avoid the
presenfationof classified passagesfromthosedocumenfs, thedefense
desires that the entire statement be offered so that fhe members have the
benefit ofseeingtheentirestafement, and toavoid anyspeculation on the
part of fhe members as to what might be missing from these documents.
Although notspecificallystated,thedefenseconcernisthatalimifing
insfruction from the court would not be sufficient to prevent prejudice to
theaccused. The government therefore seeks to offer fhe unredacted
version ofthestatemenf, with theunderstandingthattheclassified
portions will not be reference in open sessions Neither party anticipates
the need to discuss the classified contents of the statement in open court
Since members^ questions will all be written, the court will have the benefit
ofknowing whetherthe members^ question,ifany, will necessitatea
limited closed session of the court.

4

Thedefensewillseekfointroduceevidenceregardingtheposifions,
tactics, roles and activities of witnesses as those matters bear on ability to
observe, ability to supervise, and fhe context in which some of the
chargedoffensesoccurred Inordertoestablishwherecertainwitnesses
were af particular times when events were observed, the defense may
need to elicit classified informafion that would disclose,or at least permita
clear inference of, tactics, techniques and procedures of operational
forces. Theywill also seek fo introduce evidence regarding the positive
identification of the alleged victim as it bears on fhe state of mind of the
team members on the night in question and as if relates to establishing fhe
identity of the named victim. Finally,because fhe government seeks to
introduceastillphofofromavideoclipshowingaprisonerwearingamasl^
that fhe government alleges amounts fo mistreatment, fhe defense desires
tooffer entire video clip shoeing the capture of fhe prisoner so that the
members can view the alleged offense in context. The entire video clip is
less than5minutes long. The government does not object to this being
presented in closed session, but seeks to safeguard these classified
matters from public view because they will disclose classified tactics,
fecbniqiie^andprocediires.
^
^
My review of the evidence and the accompanying security classification
declarafionsshowthafthegovernmenthasestablishedbya
preponderance of the evidence that the evidence in the form of
documents, photographs, video and testimony sought to be introduced
which has been marked as classified at the ^^confidential^^ and ^^secref^
level was properly classified by an original classificafion authority applying

34840

the standards of Executive Order12958, as amended by Executive Order
13292,andvariousdepartmental regulations
^. l^ublic disclosure of fhe classified information in fhis case would harm fhe
nafional security offhe United States in the manner described within fhe
declarations Specifically,disclosurewouldrevealforeigngovernmenf
informafion, intelligence sourcesand methods, organization/functions/
namesofagencyemployees, andfhetactics/techniques/proceduresof
operations, and would thereby enable an enemy or other persons to learn
specificvulnerabilitiesorotherwiseimpairfuture direct action missions of
coalition forces.
7. The classified information sought to be introduced on the merits will tend
to provide some evidence from which the members can determine the
ability to perceive on the part of percipient witnesses, the extent and
context of the witnesses^ involvement in fhe charged offenses, and the
identification of,and the ability of the accused to adequately supervise,
subordinates on these missions.
8 TheSecretary ofthe NavyandtheOirecforyofCentral Intelligence
invoked theclaimofprivilegeunderMilifaryRuleofEvidence505with
regard to the same material fhe court has reviewed. Both the Secretary
and the OCIareauthorizedasagencyheadsto invoke fheprivilege, and
both have determined that disclosure of fhis material reasonably could
resultindamagefonationalsecurify Theirdeterminationswerebased
upon personal review of fhe evidence and declarations from subject
matter experts The invocation ofthe privilegesatisfiestherequirements
ofMilREvid505
Conclusions:
1

Theaccusedandfhepublicenjoyfherighftoapublictrial,bufthatrightis
not absolute Amilitary judge may,ifnecessary,close portions of the trial
proceedingstopublicviewifthegovernmentmakesanadequateshowing
of necessity and the closure is tailored tolimit the close sessions to the
minimum necessary. (B^^^^ec^^^a^e^tB.Grt^^c(er^,2M.J.11^(C.M.A.1977);
MilREvid505

2^^fo^upportaclosedproc^eding,tbe^overnmertfmtisfmakea^owing
that closure is necessary to prevent public disclosure of information that
must be protected. Closure is necessary when alternative means of
presentingtheevidencearenotsufficientoravailable
3. The court has carefully applied the balancing test described in GrL^^o^e^
and ifsprogeny Even though neifherparty objects to closureofthe trial
duringreceiptofclassifiedinformation,lhaveappliedthebalancingtest

34841

nonetheless in analyzingwhethertheproceedingsmaybeclosedduring
the receipt of classified information.
4

Thegovernmenthasmetitsburdenofesfablishingthaftheevidenceat
issue has been properly classified.

5. The government has met its burden of establishing that there isa
reasonabledangerthaffhepresentationofthesematfersbeforethepublic
will harm the national security.
^. The parties have delineated the subject matferfhatwill involve classified
information, and the subject matters are relevant, necessary and
otherwise admissible.
Order of fhe Court:
1 The trial proceedingsinthiscasewillbeclosed to fhepublicduringfhe
introduction of classified evidence. Closure will occur only during the
portions ofawitness^ testimony in which if is reasonably expected that the
protectedexhibitortestimonywill be displayed or discussed,orwhen
counsel will make direct reference to fhe contents of the same during
argument or in questioning, and cannot do so without discussing the
testimony or evidence in open court. Closure will also occur when the
militaryjudge musfdiscusstheexhibitortestimonyon therecord and
cannot do sowithoutdisclosingthe protected contentsinopen court The
proceedingswill be reopened to fhepublicaftheearliesfopportunify
2

lnadditionfotheprecedinggeneralizedorder,thefollowingspecificorders
apply:
a. The identity-protected witnesses shall testify behindaphysical
barrierthatpreventsthepublicfromviewingthewitnesses^ physical
appearance. However,the witnesses shall remain in fhe view of
the members,counsel,the accused and the court atall times The
wifnessesshallotherwisetestifyin open court, except duringan
initial closed session during which the witnesses^ protected identity
shall be established All classified direct and cross-examination for
identityprotectedwitnessesshall beconducted duringtheinitial
^ ^ ^ c l o s e d sessions. Tfte^proceedings wifftthereaffei^b^^O^^dio—
the public. No reference to the true names of these witnesses shall
be made in open court. Counsel shall refer to them in open court
with agreed upon pseudonyms
b. Any references to specific missions that link particular individuals or
particularagenciestofhosemissionsshall, ifclassified, bemadein

34842

closed sessions. Counsel shall thereafter refer to them in open
courtwifh agree upon pseudonyms.
c

Ifaclassifiedvideofootageistobeplayedforthemembers, video
screens shall be adjusted so asto shield them from view of the
public. Where possible, fhe court will remain open to the public
duringfheplaying ofthe video Anyclassifiedfesfimonyregarding
thevideo,orclassifiedportionsofanaudiotrackaccompanyingfhe
video, shall be takenduring closed sessions Theproceedingswill
fhereafterbe reopened to thepublicshieldingthescreensfrom
public view.

d. Any classified document that can be offered in open session
wifhoutaddressingitsclassifiedcontentsshallbeofferedinopen
session.
e

Any witness that shall testify in both classified and unclassified
maffersshalltesfifyfirsfduringaclosedsessionastoclassified
matters The sponsoring counsel shallconductadirect
examination inaclosed session on only fhe matters from which the
public must be excluded. That examination will be immediately
followed byacross-examination and examination by fhe court on
those same classified matters. Counsel and court will then conduct
examination and cross-examination on matters not subject to
closure in open court. While this procedure may force counsel to
depart from normal practice, the manner directed will not impede
fhe fair administration of justice and will ensure that the
proceedings are closed only as absolutely required. If counsel
desire to conduct the open session of examination and crossexamination firsf, with the closed session to follow, they shall notify
thecourt.

f

Counsel are instructed thaf they shall use alternative means of
presenting evidencewhenavailableandacceptable toavoid the
use of classified information. For example, if counsel intend to elicit
testimonythatatan agreed upon event, fhewitnesspasseda
codeword signifying some relevantevent,andthecodeword is
classified but fhe rest of the testimony is unclassified, counsel shall
not^licifthoclassifiedcodewordtinlesslhe^codewordifs^lfif
necessary. Trial and defense counsel shall notify fhe court prior to
opening statements precisely which witnesses they anticipate will
require closed sessions. Counsel are further directed to notify the
militaryjudge in advance before eliciting classified evidence in open
court, ordiscussing same

34843

g. Counsel are instructed that they shall instruct theirwifnesses of fhe
procedures to be used by fhe court. Witnesses shall be instructed
by counsel that they are not to offer classified information while in
an open, public session.

So ordered this 3''' day of May 2005.

C. L REISMEIER
CDR, JAGC, USN
Military Judge

34844

UNITED STATES OF AMERICA
Prosecution Oh|ection to
Providing an ^ Example Witness
to Examine theViahility of
Reasonable Alternatives to Closure

V.

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

3April2013

The United States respectfiilly objects io providing an ^^examplc" witness for the next
Article 39(a) session io examine ihe viability ofaliemativesio closure. Based on ihe facts and
circumstances ofthis case, an ^^example" witness would noi assist ihe Court in testing whether
altematives short of closure are reasonable under Rule fbr Courts Martial (RCM) 806.
Examining whether alternatives are reasonable byway ofan ^^example" witness would noi be
indicative asto whether altematives are reasonable fbr the remaining witnesses and would only
lead fo frustration ofjudicial economy. Tothe contrary,there are no altematives thai are
reasonable because those portions oftestimony fbr which closure is sought are entirely and
inextricably linked io classifted information.
FACTS
On31January 2013,ihe United States requested courtroom closure, in whole or in part,
fbrthe testimony of37 ofthe 141 govemmeni witnesses and provided ihe particular subject
maiier towhich each witness would testify inaclosed session.
Appellate Exhihii(AE)479.
The United States estimated thai ihe requesied closures comprised approximately 30^ofiis
case.
OnlMarch 2013,the Court ordered ihe United States to provide more speciftcity wiih
respect towhich portions oftestimony closure was sought. ^^^AE 503. In its supplemental
response dated 15March 2013,ihe United States providedagreaterdegreeof speciftcity.
AE505. Further, in light ofreasonable alternatives available short ofclosure, the United States
narrowed its list ofwitnesses fbr whose testimony closure was sought io 28. TheUnitedStates
requesied courtroom closure fbr ihe entirety of fbur witnesses'testimony and fbralimiicd
portion oftweniv-fbur witnesses'testimony. The United States currently estimates thai ihe
requested closures comprise approximately 25^ ofits case. ^^^/^.
On 28 March 2013, the defense argued thai ihe United States must provide more
speciftcity wiih respectto ihc classifted information ii intends io elicit ftom ihe 28 identifted
witnesses in order fbr ihis Court io consider aft reasonable altematives io closure.
Defense
Requesi fbr Appropriate Relieft Closure Witness, dated 28 March 2013. The defense stated as
fbllows:
^Tjhe only wayto achieve ihe necessary level of speciftcation is io
actually hear ihe testimony ofawitness delivered inaclosed court
session. Thcrcafter,while ihe Court remains closed, either party or

APPELLATEEXHIBIT^^^
PAGEREFERENCED:
PAGE
OF
PAGES

34845

the Court may attempt io elicit ihe same information through the
use of altematives. Then, ihe Court will be inaheiicr position io
determine whether closure or use of an altemative is appropriate.
Id.
On 1 April 2013, ihe Court asked ihe United States whether ii had any objection io
providing an "example" witness for the next Article 39(a) session to examine ihe viability of
altematives to closure. Later thai day, ihe United States stated its objection and requesied an
opportunity to ftle a written brief, which the Court granted.
WITNESSES/EVIDENCE
The United States requests the Court consider ihe enclosures io this ftling and ihe
Appellate Exhibits cited herein.
LEGAL AUTHORITY AND ARGUMENT
The United States respectfully objects io providing an "example" witness for the next
Article 39(a) session to examine the viability of altematives io closure for iwo reasons. First, an
"example" witness would noi assist ihe Court in testing whether altematives short of closure are
reasonable during portions of testimony from ihe remaining 27 witnesses. To the contrary, there
are no alternatives thai are reasonable because those portions of testimony for which closure is
sought are entirely and inextricably linked to classifted information.
I: PROVIDING AN "EXAMPLE" WITNESS TO TEST WHETHER ALTERNATIVES
SHORT OF CLOSURE ARE VIABLE FOR ALL TWENTY-EIGHT WITNESSES IS
UNPRECEDENTED AND WILL NOT ASSIST THE COURT IN DETERMINING
WHETHER ANY SUCH ALTERNATIVES ARE REASONABLE UNDER RCM 806.
For closure inquiries, the Court must consider whether alternatives to closure exist and, if
so, whether those alternatives are reasonable. See RCM 806(b)(2) (stating that courts-martial
shall be open to the public unless, inter alia, "reasonable altematives to closure were considered

and found inadequate"). Generally, ihe determination of what portion of testimony is io be
closed "must be made on a case-by-case, witness-by-witness, and circumstance-by-circumstance
basis." ABC, Inc. v. Powell, 47 M.J. 363, 365 (C.A.A.F. 1997). For closures relating to
classifted information, ihe Court in Lonetree is instmctive. See United States v. Lonetree, 31
M.J, 849, 853 (N-M. C.M.R. 1990, aff'd and rem'd, 35 M.J. 396 (C.M.A. 1992).
In Lonetree, the appellant argued ihe militaryjudge improperly closed the courtroom
during classified portions of witness testimony by failing to make specificfindingseachtimethe
court was closed and by failing to narrowly tailor each closure, thus denying the accused his
right to a public trial under the Sixth Amendment. See Lonetree, 31 M.J. ai 853. The Court
disagreed. In determining whether speciftcftndingsare required, the Court delineated ihe
distinction for cases involving closures io protect classifted information. See Lonetree, 31 M.J.
ai 853 (stating that "Military Rule of Evidence 505 is directed towards ihe information sought io

34846

be exempted from disclosure at a public trial"). The Court reasoned thai when classifted
"information may be divulged by a number of witnesses or documents, or both, the focus of
exclusion is upon thai specific information" and the "speciftcity required [for closure] addresses
the information to be protected." Lonetree, 31 M.J. at 853 (emphasis added). On ihe other hand,
for closures based on ihe rights of privacy of individuals, the Court noted thai the focus is upon
the individual rights requiring particularized mlings as to each individual situation. Lonetree, 31
M.J. at 853.
Under RCM 806(b)(2), ihe Court must consider whether alternatives io closure exist and,
if so, whether those alternatives are reasonable. See RCM 806(b)(2). The defense proposes the
Court adopt a irial-by-error approach io determine whether altematives are reasonable,
speciftcally thai a witness be ordered io testify so thai the parties may "attempt io elicit ihe same
information through ihe use of alternatives." The defense cites no authority supporting its
proposal. Further, ihe United States is aware of no precedence involving a courtroom closure
based on classifted information where an "example" witness was ordered io testify for the sole
purpose of testing whether alternatives are reasonable. Instead, military courts have relied
largely upon classiftcation determinations, the scope of testimony to be elicited in a closed
session, and ihe Govemment's rationale for requesting closure. See e.g. Lonetree, 31 M.J. at 853
(relying upon swom affidavits identifying those witnesses who will testify about classifted
matters and ihe government's rationale for requesting closure); United States v. Anderson, 68
M.J. 378 (C.A.A.F. 2010) (reviewing the evidence, classiftcation declarations, and portion of
testimony involving the classifted information); Enclosures 1, 6, and 7 of Prosecution's
Supplement io Prosecution Response io Scheduling Order, dated 15 March 2013 (records from
United States v. Diaz, 69 M.J. 127 (C.A.A.F. 2010) where ihe Court considered ihe invocation of
the classifted information privilege, a memorandum from ihe Original Classiftcation Authority, a
declaration thai ihe document ai issue was classifted, and classification guides).
On 1 Febmary 2013 and then wiih greater speciftcity on 15 March 2013, the United
States delineated those portions of testimony relating io classifted information that ii seeks to
elicit during a closed session, cited portions of ihe Original Classiftcation Authority (OCA)
classiftcation guides conftrming the information's classiftcation level, and stated its rationale for
requesting closure. See AE 505. The United States has enclosed the applicable OCA
classiftcation guides, with pinpoint cites for ihe classifted information that the United States
requests to elicit in a closed session, io this filing. See Enclosures 1-2.' Enclosure 3 is a list of
pinpoint citations to ihe applicable classiftcation guides based on the most recent Grunden ftling.
Through these materials, ihe United States provided the Court wiih facts necessary to make
speciftc ftndings for each individual closure, a standard beyond what is required under Lonetree.
The focus of closure should be upon thai particular classifted information set forth in
Appellate Exhibit 505; put another way, ihe issue before ihis Court is whether alternatives short
of closure exist for each piece of classifted information and, i f so, whether those altematives for
each piece of classifted information are reasonable. Whether altematives exist and are
reasonable for the classifted information thai ihe United States intends io elicit from one witness
is noi indicative as to whether altematives exist and are reasonable for classifted information that
' Enclosure 1 is provided ex parte because the United States does not have approval to disclose ihis
classified information to ihe defense.

34847

theUnited States intends io elicit ftom anoiherwiiness. Thai is tme fbr all 28 witnesses, io
include witnesses who sharea"common" purpose. Whether altematives exist and are reasonable
fbr one OCA, subject matter expert or sentencing witness is noi indicative asto whether
altematives exist and are reasonable fbr another OCA, subject maiier expert, or sentencing
witness. For example, ihc background, experiences, expertise, opinions, observations, and
analyses ofsubjeci maiier experts thai may be elicited are completely different from one another
and cannot be consolidated under one common legend of"code words." Thedefense'sown
ftling under MRE 505(h) highlights its intentto explore these areas also during crossexamination. Therefbre, should fhe Court require testimony ihroughamock-court session, to
test whether altematives are reasonable, itwould be necessary fbr ihe Court io test the
reasonableness ofaliemaiives wiih each witness. Should ihe closure inquiry he fbcused at ihe
information-level,as held in
any such testimony would heofno value tothe Court.
II: ALTERNATIVES SHORT OF CLOSUREARENOT^^B^^G^^^^FOR THIS SUBSET
OF CLASSIFIED INFORMATIONTHAT IS INEXTRICABLYINTERTWINED AND
REOUIRES CLOSURE TO PERMITACONTEXTUALANDCOMPLETE
UNDERSTANDINGOFTHECLASSIFIEDTESTIMONY
Military courts agree thai reasonable altematives should he employed tothe extent
possible, bui noi atthe risk ofcausing utter confusion or impairing ihe abilityto adequately
present and explore ihe classifted content, either by ihe parties, ihe Court, or ihe witness.
^^^^^^^^,31M.J.ai854(noiing thai although some unclassifted infbrmation was disclosed in
the closed session,"[fjurther bifurcation of other witnesses'iesiimony,oiher than as occurred,
was impracticable and would have created unnecessary chaos" and thai "[tjhe procedure utilized
allowed both partiesareasonably normal context within which io pursue iheir respective
positions"); Enclosures 1,6, and7ofiheProsecuiion'sSupplemeniio Prosecution Response to
SchedulingOrder,daied15March2013(rccordsfrom(^^/^^^^^^^^.^v.D/^^,69M.J.127
(C.A.A.F.2010) where ihe Court mled thai court closure was "necessary iopermiiaconiexiual
and complete understanding ofthe classifted testimony"). In D^^v^^^^.^^, ihe Army Court of
Criminal Appeals even noted thai "inafew instances, ihe witnesses'testimony could he fairly
characterized as so inextricably linked io classifted matters asto make ii all properly received in
aclosedsession."D^^v^^.^^.^^C^^v^^/^^^^^^^^.^, 2005 WL6519929,at3(A.C.C,A, 2005)
(noting that this is an exception, not ihe mle).
The portion oftestimony fbr which ihe United States requests closure is distinct from any
other testimony ihe United States intends io elicit aiiriak Thai testimony primarily consists of
ihe fbllowing: (l)detailed factual observations necessary toput charged documents in their
proper context wiih what was transpiring, both internationally and domestically; (2)factua1
observations ofimpact caused by ihe WikiLeaks disclosures noi memorialized in writing; (3)
expert opinions relatingto ihc impact caused hyihc WikiLeaks disclosures noi memorialized in
writing; and(4) testimony relating to fbrensic analysis consistingof classifted information so
inextricably intertwined based on ihe alleged misconduct. The testimony fbr which closure is
sought consists ofnumerous, inextricably commingled classifted facts originating from several
OCAs. This testimony cannot he sanitized merely hyusinga"codc word" fbracouniry,person,
or name ofamilitary operation. Instead,"codc words" would also have io he employed,
^/^^^^^, fbr past and current events taking place both domestically and iniemaiionally,ihe

34848

reasons those events took place, the actions taken after those events took place, the reasons those
actions were taken, ihe details ofgovemment operations, fbreign persons, and so fbrth. In light
ofthe defense speciftcally contesting whether ihe charged documents relate tothe national
defense, ihis type of detail can only he elicited inaclosed session to permitaftift contextual and
complete understanding ofthe charged documents. For thai limited portion ofiestimony,ihe
altematives to closure set fbrth in the prosecufion'soriginalG^^^^^^ ftling cannot reasonably be
employed without causing utter confusion to all parties involved, or impairing ihe abilityto
adequaielypreseni and explore ihe classifted content, either hythe parties, ihe Court, or ihe
witness. ^^^AE479. Toillusiraie ihe inherent conftision wiih ihis speciftc type oftestimony,
ihe United States has enclosed ihe classifted transcript oftestimony provided duringaclosed
session ofthe Article 32 investigation, along with an unclassifted version ofthis testimony wiih
fhe use of"code words" suhsiiiuied over the original text toillusiraie ihis point.
Enclosures
4and5(ihe highlighted portions reftect ihe unclassifted testimony directly related tothe closed
session within ihe classifted portions ofthe enclosures). These enclosures also illustrate howa
scalpel can be appliedto such testimony and ihe topics can be discussed in open session and then
more detail ofthose topics which are classifted in closed session.
Praciica11y,employing alternatives to this limited portion oftesiimonywouldfriistrate
justice, place an unreasonable burden upon ihe 28 witnesses and ihe Court Security Offtcer, and
elevate the risk spillageof classifted information. Based on ihe amount of, and inextricably
commingling of, classifted information through testimony fbr ihe infbrmation outlined wiih these
wiinesses,alegendof"code words" would he quite lengthy and, undoubted1y,wou1d not be
exhaustive. Until those witnesses are excused, the need fbr additional or modifted "code words"
fbr aft parties io explore areas ai trial is eviiahle. Further, should anywitness seek to testify fo
matters outside ihe scope ofthis legend, immediate additions would he necessary.^
Further, no matter how detailed ihe legend may he, having these portions oftestimony in
open court would place an unreasonable burden on ihe 28 witnesses and ihe Court Securiiy
Offtcer. Requiring ihe Court Securiiy Offtcerto monitor ihe proceeding wiih an incredibly
lengthy and convoluted legend is impracticak Lastly, ihe risk of spillage isa^^^^^ reality in
ihis court-martial. Members ofthe public have already sought io reveal what has heen redacted
in Courtftlingsand posted iheir conclusions on ihe Intemet.
Enclosures 6-8 (Enclosure6is
apriniouiofawebsite thai was dedicated io determining what information was redacted during
ihe Article 32. Enc1osure7is ihe webpage if ihe user clicks on ihe highlighted text on page17
ofEnc1osure6. Enc1osurc8is ihe webpage if ihe user clicks on ihe highlighted text on page18
ofEnc1osure6). Overall,these enclosures show ihaiasawy spectator is ableto piece together
unclassifted bui protected infbrmation while conducting independent research. Asophisiicaied
adversary ofthe United States would have greater resources and capabilities io perfbrm this task,
if given ihe opportumiy,especial1y when ii comes to classifted information. Further, members of
the public have brought recording devices io previous Article 39(a)sessions, which would allow
aspillageiohc recorded and distributed outside ihe control ofthe United States Government,
^^^Enclosure9. Based on these facts and ihe world-wide publicity ofthis case, should the
Court noi close ihe court fbr this icsiimony,iheriskthai fbreign adversaries come into
possession of classifted information isaheightened possibility.

^ The United States acknowledges that these issues exist for all witnesses relying on syllabi and legends.

34849

CONCLUSION
The United States respeciftilly objects io providing an "example" witness fbr ihe next
Article 39(a) session io examine ihe viability ofaliemativesio closure fbr iwo reasons. First, an
"example" witness would noi assist ihe Court in testing whether alternatives short of courtroom
closure during portionsoftestimony from ihc remaining iwentyseven witnesses are reasonable.
Tothe contrary,reasonahle alternatives are noi available because those portions oftestimony fbr
which closure is sought are entirely and inextricably linked fo classifted infbrmation.

^

J HUNTER WHYTE
CPT,JA
AssistantTrial Counsel
9Encls
1 OCA Classiftcation Guides[classiftcdSECRET//NOFORNj[^^^^^^^j
2. OCA Classiftcation Guides[unc1assiftedj
3. G^^^^^^ Motion wiih OCA Classiftcation Guides Pinpoint Cites
4 Article 32TranscripiofSA David Shaver[classiftedSECRET//NOFORNj
5. Artic1c32TranscripiofSA David Shavcrw/Codeword Substituiions[classifted
SECRET/ZNOFORNj
6. Webpage Screenshoi^l
7. Webpage Screenshot ^2
8. Webpage Screenshot ^3
9. Emati from Mr. Coombs, 12 Mar 13

Icertifythatlserved or caused io he servedatme copy ofthe above on Mr. David
Coombs, Civilian Defense Counsel,viaeleciromc mati on3Apri1 2013.

L H U ^ E R WHYTE
CPT,JA
AssistantTrial Counsel

v

\/

Appellate Exhibit 512
Enclosure 1
105 pages

c\assified

‖SECRET‖

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

34850

34851

LNCLASSIFIED
UNITED STATESOF AMERICA
V.

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

Prosecution Objection to
Providing an "Example" Witness
to Examine the Viability of
Reasonable Alternatives to Closure
Enclosure 2
3 April 2013

UNCLASSIFIED

E/Ac^ 2. -to
APPELLATE EXHIBIT 511
PAGE REFERENCED:
.
PAGE
OF
PAGES

34852

*380-14

FOR OFFICIAL USE ONLY
Headquarters
U n i t e d S t a t e s C e n t r a l Command
M a c D i l l A i r Force Base, F l o r i d a 33621
Regulation
Number 380-14
UNITED STATES CENTRAL COMMAND
SECURITY CLASSIFICATION GUIDE 0501
1.
Purpose. T h i s guide e s t a b l i s h e s the b a s i c p o l i c i e s f o r p r o p e r
c l a s s i f i c a t i o n , downgrading, and d e c l a s s i f i c a t i o n o f i n f o r m a t i o n
r e l a t e d t o t h e o p e r a t i o n s , f a c i l i t i e s , communications, data
c o l l e c t i o n and p r o c e s s i n g , warning, and o t h e r i n f o r m a t i o n
p e r t a i n i n g t o U n i t e d S t a t e s C e n t r a l Command (USCENTCOM) and i t s
components d u r i n g normal p e r i o d s and deployments f o r e x e r c i s e s and
o p e r a t i o n s . This guide supercedes USCENTCOM S e c u r i t y
C l a s s i f i c a t i o n Guide 9901, d a t e d 1 February 1999.
2. A p p l i c a b i l i t y .
This guide a p p l i e s t o t h e Headqi^arters,
USCENTCOM; i t s components; and those government agencies, c i v i l i a n
c o n t r a c t o r s , and p e r s o n n e l i n v o l v e d i n t b e a c t i v i t i e s o f USCENTCOM.
3. A u t h o r i t y . The O r i g i n a l C l a s s i f i c a t i o n A u t h o r i t y (OCA) f o r
t h i s g u i d e i s L i e u t e n a n t General Lance L. Smith, Deputy Commander,
USCENTCOM. This c l a s s i f i c a t i o n guide r e f l e c t s changes r e q u i r e d by
E x e c u t i v e Order (EO) 13292 dated 28 March 2003, " F u r t h e r Amendment
to E x e c u t i v e Order 12958, as Amended, C l a s s i f i e d N a t i o n a l S e c u r i t y
I n f o r m a t i o n " , and t h e I n f o r m a t i o n S e c u r i t y O v e r s i g h t O f f i c e (ISOO)
D i r e c t i v e 1, 22 September 2003. Changes i n c l a s s i f i c a t i o n markings
are r e q u i r e d i n accordance w i t h EO 12958, as amended. The
c l a s s i f i c a t i o n a u t h o r i t y f o r i n f o r m a t i o n covered under c h i s guide
s h a l l be c i t e d as shown below, along w i t h t h e a p p r o p r i a t e
declassification instructions.
DERIVED FROM: USCENTCOM S e c u r i t y C l a s s i f i c a t i o n
Guide 0501, Dated: 1 January 2005
4.

E f f e c t i v e Date.

This guide i s e f f e c t i v e upon r e c e i p t .

^This i s a new r e g u l a t i o n

FOR OFFICIAL USE ONLY

34853

380-14

FOROFFICIALUSEONLY
5. ConflictBChanges. I f t h i s s e c u r i t y c l a s s i f i c a t i o n guidance
imposes i m p r a c t i c a l c o n t r o l s , o r i f changes a r e deemed
a p p r o p r i a t e , t b e U.S. government a c t i v i t y or c i v i l i a n c o n t r a c t o r
o r g a n i s a t i o n concerned s b o u l d f o r w a r d recommendations and
s u p p o r t i n g r a t i o n a l e t o t h e USCENTCOM SSO. Submission o f sucb
recommendations w i l l n o t c o n s t i t u t e a u t h o r i t y t o r e c l a s s i f y
i n f o r m a t i o n and w i l l n o t become an o f f i c i a l change unless
p u b l i s h e d as an update t o t h i s guide w i t h t h e concurrence o f t h e
OPR.
6. Use and R e p r o d u c t i o n o f t h i s Guide. This guide s h a l l be
used t o determine t b e l e v e l s o f t b e s e c u r i t y c l a s s i f i c a t i o n t o
be a s s i g n e d t o i n f o r m a t i o n , systems, programs, p l a n s , o r
p r o j e c t s a s s o c i a t e d w i t h USCENTCOM. I t may be necessary t o
c o n s u l t s e p a r a t e c l a s s i f i c a t i o n guides t o determine t b e degrees
of s e c u r i t y c l a s s i f i c a t i o n w i t h respect t o i n d i v i d u a l
systemsBsubsystems, programs, p l a n s , o r p r o j e c t s t h a t a r e
USCENTCOM r e l a t e d . R e p r o d u c t i o n o f t h i s guide i s p e r m i s s i b l e .
7. D i s c l o s u r e o f U n c l a s s i f i e d I n f o r m a t i o n .
DOD c o n s i d e r s
d i s c l o s u r e as t b e t r a n s f e r o f m i l i t a r y i n f o r m a t i o n t h r o u g h
approved channels t o an a u t h o r i s e d r e p r e s e n t a t i v e .
^hen c e r t a i n
d e t a i l s o f i n f o r m a t i o n a r e u n c l a s s i f i e d , i t does n o t a u t h o r i z e
automatic p u b l i c d i s c l o s u r e .
Proposed d i s c l o s u r e o f
u n c l a s s i f i e d i n f o r m a t i o n s h a l l be processed t h r o u g h t b e P u b l i c
A f f a i r s O f f i c e (CCPA) andBor t h e Command I n f o r m a t i o n Management
Branch (CCJ6-PB), as a p p r o p r i a t e .
Tbe term ^^disclosure^^
i n c l u d e s , b u t i s n o t l i m i t e d t o , any t e c h n i c a l data, a r t i c l e s ,
speeches, photographs, brochures, a d v e r t i s e m e n t s , p r e s e n t a t i o n s ,
and d i s p l a y s .
8.

Disclosure

of Classified Information.

a.
To Otber Government Agencies. C l a s s i f i e d i n f o r m a t i o n
r e g a r d i n g USCENTCOM may be d i s c l o s e d t o o t h e r DOD components.
F e d e r a l agencies, o r U.S. i n d u s t r i a l f a c i l i t i e s , o n l y t o
p r o p e r l y c l e a r e d persons on a need-to-know b a s i s i n accordance
w i t h DOD 5200.I-R and USCENTCOM R e g u l a t i o n 380-1. I t i s t h e
r e s p o n s i b i l i t y of the i n d i v i d u a l disclosing the information t o
v e r i f y t h e r e c i p i e n t ' s a p p r o p r i a t e s e c u r i t y c l e a r a n c e and needto-know.
b.
To F o r e i g n N a t i o n a l s ,
Classified information pertaining
t o USCENTCOM-related m a t t e r s w i l l n o t be d i s c l o s e d t o f o r e i g n
n a t i o n a l s , f o r e i g n governments, o r i n t e r n a t i o n a l o r g a n i z a t i o n s

2

FOROFFICIALUSEONLY

34854

380-14

FOROFFICIALUSEONLY
without proper a u t h o r i s a t i o n per the National Disclosure Policy
and USCENTCOM R e g u l a t i o n 380-5, upon c o o r d i n a t i o n w i t b CCJ2-FD0,
tbe a p p r o p r i a t e D i r e c t o r B C b i e f o f S p e c i a l S t a f f , and t b e i r
designated Foreign Disclosure Representative,
c.
L i m i t a t i o n s , This guide sbould n o t be c o n s t r u e d t o
a l l o w t b e d i s c l o s u r e o f p r o p r i e t a r y i n f o r m a t i o n owned by p r i v a t e
firms o r c i t i z e n s ( i , e , patents, copyrights o r trade secrets) t o
o t h e r c o n t r a c t o r s engaged i n p r o j e c t s a t USCENTCOM unless
approved by t b e owner o f sucb p r o p r i e t a r y i n f o r m a t i o n ,
9, D e c l a s s i f i c a t i o n and Downgrading, I n f o r m a t i o n meeting t b e
c l a s s i f i c a t i o n r e q u i r e m e n t s o f t b i s guide s h a l l remain
c l a s s i f i e d as l o n g as r e q u i r e d by n a t i o n a l s e c u r i t y
EO 12958, as amended p r o v i d e s u n i f o r m
considerations,
i n s t r u c t i o n s f o r d e c l a s s i f y i n g and downgrading n a t i o n a l s e c u r i t y
i n f o r m a t i o n , i n c l u d i n g i n f o r m a t i o n r e l a t i n g t o defense a g a i n s t
t r a n s n a t i o n a l t e r r o r i s m . These i n s t r u c t i o n s a r e p r o v i d e d f o r
each s p e c i f i c t o p i c o f i n f o r m a t i o n and t b e y a r e n o t i n t e n d e d t o
be t r a n s c r i b e d v e r b a t i m . They should be used t o determine a
s p e c i f i c date o r event f o r d e c l a s s i f i c a t i o n o r downgrading.
S p e c i f i c d e c l a s s i f i c a t i o n a u t h o r i t y i s n o t r e q u i r e d t o remark
documents downgraded o r d e c l a s s i f i e d i n accordance w i t h
i n s t r u c t i o n s provided i n t b i s guide,
10,

O r g a n i z a t i o n o f t b e C l a s s i f i c a t i o n Guide (APPENDIX A ) ,

a.
I n f o r m a t i o n R e v e a l i n g , Tbe ^^INFORMATION RE^EALINC^^
column s t a t e s p r e c i s e l y t b e elements of i n f o r m a t i o n t o be
protected,
b.
C l a s s i f i c a t i o n . Tbe ^^CLASS^^ column s t a t e s which
c l a s s i f i c a t i o n l e v e l a p p l i e s t o each element o f i n f o r m a t i o n
l i s t e d under t b e ^^INFORMATION RE^EALINC^^ column. Tbe markings
l i s t e d below are accompanied by d e s c r i p t i v e e x t r a c t s from DoD
5200.I-R:
(1) TOP SECRET. A p p l i e d t o i n f o r m a t i o n , t h e
u n a u t h o r i z e d d i s c l o s u r e o f which reasonably c o u l d be expected t o
cause e . ^ c e ^ t i o n a l l y ^rave ^a^a^e t o t h e n a t i o n a l s e c u r i t y t h a t
tbe o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y i s able t o i d e n t i f y or
describe.
(2) SECRET. A p p l i e d t o i n f o r m a t i o n , t b e u n a u t h o r i z e d
d i s c l o s u r e o f which reasonably c o u l d be expected t o cause

3

FOROFFICIALUSEONLY

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.serious ^^^^ge t o t b e n a t i o n a l s e c u r i t y t b a t t b e o r i g i n a l
c l a s s i f i c a t i o n a u t h o r i t y i s able t o i d e n t i f y o r describe.
(3)
CONFIDENTIAL. A p p l i e d t o i n f o r m a t i o n , t b e
u n a u t h o r i z e d d i s c l o s u r e o f which r e a s o n a b l y c o u l d be expected t o
cause c^a^a^e t o t h e n a t i o n a l s e c u r i t y t b a t t h e o r i g i n a l
c l a s s i f i c a t i o n a u t h o r i t y i s able t o i d e n t i f y o r d e s c r i b e .
(4)
UNCLASSIFIED. Some UNCLASSIFIED i n f o r m a t i o n may be
assigned FOR OFFICIAL USE ONLY (FOUO) s t a t u s i n t h e ^^REMAR^S^^
column, FOUO i s n o t a s e c u r i t y c l a s s i f i c a t i o n , b u t a h a n d l i n g
c a v e a t , DOD 5400,7-R, DOD Freedom o f I n f o r m a t i o n Act Program,
c o n t a i n s g u i d e l i n e s f o r p r o p e r l y marking, h a n d l i n g , and
s a f e g u a r d i n g FOUO i n f o r m a t i o n .
c. D e c l a s s i f i c a t i o n B E x e m p t i o n . As o f 22 September 2003,
tbe use o f ^ 1 , ^2, ^3, ^4, ^5, ^6, ^7, and ^8 was no l o n g e r
a l l o w e d as d e c l a s s i f i c a t i o n markings. Tbe ^^DECLASSIFY ON^^
column s p e c i f i e s the d a t e or event f o r d e c l a s s i f i c a t i o n or t h e
10-year a u t o m a t i c d e c l a s s i f i c a t i o n exemption c a t e g o r y as
d e s c r i b e d i n DOD 5200.1-R. I f t b e o r i g i n a l c l a s s i f i c a t i o n
a u t h o r i t y cannot determine an e a r l i e r s p e c i f i c date o r event f o r
d e c l a s s i f i c a t i o n , i n f o r m a t i o n s h a l l be marked f o r
d e c l a s s i f i c a t i o n 10 years from t b e date o f t h e o r i g i n a l
d e c i s i o n , unless the o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y
determines t h a t t h e s e n s i t i v i t y o f t h e i n f o r m a t i o n r e q u i r e s t h a t
i t s h a l l be marked f o r d e c l a s s i f i c a t i o n f o r up t o 25 years from
tbe date o f t b e o r i g i n a l d e c i s i o n . ^hen d e c i d i n g bow t o
complete t h e " D e c l a s s i f y on^^ l i n e , an o r i g i n a l c l a s s i f i c a t i o n
a u t h o r i t y w i l l have t b e f o l l o w i n g c h o i c e s :
(1)

A date o r event l e s s t h a n 10 years.

(2)

A date 10 years from t h e date o f t b e document.

(3)
document.

A date up t o 25 years from t b e date o f t h e

d. Reason. The ^^REASON^^ column s p e c i f i e s t h e reason f o r
c l a s s i f i c a t i o n , c i t i n g the appropriate category o f i n f o r m a t i o n
l i s t e d i n S e c t i o n 1.4 o f EO 13292, as f o l l o w s :
(1)

M i l i t a r y p l a n s , weapons systems, o r o p e r a t i o n s .

(2)

F o r e i g n government i n f o r m a t i o n .

4

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(3) I n t e l l i g e n c e a c t i v i t i e s ( i n c l u d i n g s p e c i a l
a c t i v i t i e s ) , i n t e l l i g e n c e sources o r methods, o r c r y p t o l o g y .
(4) F o r e i g n r e l a t i o n s o r f o r e i g n a c t i v i t i e s o f t h e
U n i t e d S t a t e s , i n c l u d i n g c o n f i d e n t i a l sources.
(5) S c i e n t i f i c , t e c h n o l o g i c a l , o r economic m a t t e r s
r e l a t i n g t o t h e n a t i o n a l s e c u r i t y , which i n c l u d e s defense
against t r a n s n a t i o n a l t e r r o r i s m .
(6) U n i t e d S t a t e s government programs
nuclear materials or f a c i l i t i e s .

f o r safeguarding

(7) v u l n e r a b i l i t i e s o r c a p a b i l i t i e s o f systems,
i n s t a l l a t i o n s , i n f r a s t r u c t u r e s , p r o j e c t s , plans, or p r o t e c t i o n
s e r v i c e s r e l a t i n g t o t b e n a t i o n a l s e c u r i t y , which i n c l u d e s
defense a g a i n s t t r a n s n a t i o n a l t e r r o r i s m .
(8)

weapons o f mass d e s t r u c t i o n .

e. Remarks. The ^^REMAR^S^^ column c o n t a i n s any o t h e r
p e r t i n e n t i n f o r m a t i o n f o r each element o f i n f o r m a t i o n , as
a p p r o p r i a t e , t o i n c l u d e downgrading i n s t r u c t i o n , FOUO
designations, e t c .

5

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11.
PROPONENT. The proponent o f t h i s r e g u l a t i o n i s t h e
D i r e c t o r o f I n t e l l i g e n c e , CCJ2. Users are i n v i t e d t o send
comments and suggested improvements on DA Form 2028 (Recommended
Changes t o P u b l i c a t i o n s and Blank Forms) d i r e c t l y t o H^
USCENTCOM, ATTN: CCJ2-SS0, 7115 South Boundary Boulevard,
M a c D i l l AFB, FL 33621-5101, (813) 827-6281B6282 Fax: (813) 8275484 (DSN: 651).
FOR THE COMMANDER:

^i^fe^

OFFICIALi

JOHN G. CASTELLAW
Major General, USMC
Chief o f S t a f f

ANITA H. BRIGHT
LCDR, USN
C b i e f , Business Management
Branch

DISTRIBUTION:
C (1 EA), G

FOROFFICIALUSEONLY

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APPENDIX A
USCENTCOM S e c u r i t y C l a s s i f i c a t i o n Guide 0501
MANPOWER, PERSONNEL, AND ADMINISTRATION

(CCJl)

Classification

Declassification

Reason

Remarks

Country clearance
requests

U

N/A

N/A

W i l l become
classified i f
specific classified
information i s
i n c l u d e d (e.g.,
detailed travel
itineraries of
general/flag
officers, etc.)

Daily personnel
statistics

S

1 month

1.4(g)

Approximate numbers
of deployed
p e r s o n n e l may be
r e l e a s e d by t h e
CCPA f o r o f f i c i a l
use

Information

revealing

A-1

FOR OFFICIAL USE ONLY

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INTELLIGENCE AND SECURITY (CCJ2/JICCENT)
Classification

Declassification

Reason

Remarks

Information concerning
CI/HUMINT and o t h e r
sensitive intelligence
sources and methods

S

10 years

1.4(c)

May be c l a s s i f i e d
higher i f i t
incorporates
information of a
higher
c l a s s i f i c a t i o n o r by
direction of the
CCJ2 OCA

Intelligence
information obtained
f r o m CI/HUMINT

C

10 y e a r s

1.4(c)

I f t h e source i s n o t
identified

I n t e l l i g e n c e exchange
agreements

s

10 y e a r s

1.4(b) /
1.4(c)

Products o f a n a l y s i s
by USCENTCOM
i n t e l l i g e n c e analysts

s

10 y e a r s

1.4(c)

Information

revealing

A-2

FOR OFFICIAL USE ONLY

May be c l a s s i f i e d
higher i f i t
incorporates
information of a
higher
c l a s s i f i c a t i o n o r by
direction of the
CCJ2 OCA

34860

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SECURITY (CCJ2-SS0)
Information

revealing

Classification

Declassification

Reason

Approved m o d i f i c a t i o n s
to t h e requirements o f
DOD 5200.1-R d u r i n g
operations

C

Upon c o m p l e t i o n
of o p e r a t i o n

1.4(g)

Damage assessments
conducted p u r s u a n t t o
t h e l o s s o r compromise
of c l a s s i f i e d
information

C

10 years

1.4(g)

Exploitable
information
or personnel s e c u r i t y
weaknesses i n OCONUS
areas

C

Upon c o r r e c t i o n ,
elimination of
weakness, o r 10
y e a r s , whichever
i s sooner

1.4(g)

General s e c u r i t y
countermeasures

U

N/A

N/A

Loss o f c l a s s i f i e d
material

c

Upon r e g a i n i n g
custody o f
material or
following
completion o f
damage
assessment,
whichever i s
later

1.4(g)

Weaknesses i n t h e
application of security
measures f o r
safeguarding c l a s s i f i e d
information during
o p e r a t i o n s , i n OCONUS
locations, or during
periods o f increased
threat

c

Upon c o r r e c t i o n
o f weakness o r
completion o f
the o p e r a t i o n ,
whichever i s
sooner

1.4(g)

A-3

FOR OFFICIAL USE ONLY

Remarks

May be c l a s s i f i e d
h i g h e r based on
content

34861

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SYSTEMS (CCJ2-S)
Information

revealing

Classification

Declassification

Reason

Remarks

ALE password

TS

Upon change

1.4(a)

SCI

COLISEUM password

TS

Upon change

1.4(a)

SCI

S

Upon change

1.4(a)

GALE password

TS

Upon change

1.4(a)

JWICS LAN/WAN user ID

U

N/A

N/A

JWICS LAN/WAN password

TS

Upon change

1.4(a)

SCI

RMS password

TS

Upon change

1.4(a)

SCI

SAFE password

TS

Upon change

1.4(a)

SCI

Virus/network
intrusions

S

XDITDS password

TS

DAWN/HOCNET password

Once

neutralized

Upon change

SCI

1.4(g)

1.4(a)

A-4

FOR OFFICIAL USE ONLY

SCI

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OPERATIONS (CCJ3)
Information revealing
Exercises

Classification

Declassification

Reason

(CCJ3-E)

Remarks
Separate
classification
guidance s h a l l be
issued by CCJ3-E f o r
exercises. CCJ3-E
w i l l issue a bycountry yearly guide
or a guide f o r each
s p e c i f i c exercise.
For f u r t h e r
information, contact
CCJ3-E

A-5

FOR OFFICIAL USE ONLY

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STRATEGIC DEPLOYMENT (CCJ3-S).
Information
revealing

Classification

Declassification

Reason

Remarks

C-Date/calendar date
association

C

3 years a f t e r
completion

1.4(a)

Concept o f
operations

S

1 year a f t e r
completion

1.4(a)

Exercise name

U

N/A

N/A

Exercise/operation
location

S

Upon execution

1.4(a)

If classification/
declassification
i n s t r u c t i o n s are not
s p e c i f i e d by JCS/HN

Exercise/operation
name associated w i t h
host nation (HN)

s

Upon execution

1.4(a) /
1.4(d)

If classification/
declassification
i n s t r u c t i o n s are not
s p e c i f i e d by JCS/HN

Exercise/operation
name associated w i t h
participating units

s

Upon execution

1.4(a)

If classification/
declassification
i n s t r u c t i o n s are not
s p e c i f i e d by JCS/HN

Operation code words

s

1 year a f t e r
completion

1.4(a)

Confidential
execution

P a r t i c i p a t i o n of a
specific individual
i n operation

u

N/A

N/A

Participating units,
including types,
vulnerabilities,
locations,
quantities,
readiness status,
deployments,
redeployments, and
d e t a i l s of movement
of U.S. and f r i e n d l y
forces i n operation

s

Upon execution
or f o l l o w i n g
release by
national command
authorities,
whichever i s
sooner

1.4(a)

Classification

Declassification

Reason

s

1 year a f t e r
completion

1.4(a) /
1.4(d)

Information
revealing
Units/HN association

A-6

FOR OFFICIAL USE ONLY

Confidential
execution

upon

upon

If classification/
declassification
i n s t r u c t i o n s are not
s p e c i f i e d by JCS/HN

Remarks
Confidential
execution

upon

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LOGISTICS AND ENGINEERING (GGJ4/7)
Classification

Declassification

Reason

A n a l y s i s and impact o f a l l
USCENTCOM AORs

C

Upon c o m p l e t i o n
of mission

1.4(d) /
1.4(g)

b i l a t e r a l OPLAN e x e c u t i o n
l o g i s t i c s and s u p p o r t
r e q u i r e m e n t s w i t h AOR
partners

C

10 years o r upon
completion of
project,
whichever i s
sooner

1.4(a) /
1.4(d)

C h a r a c t e r i s t i c s o f U.S.
weapons and r e l a t e d
sustainability

S

10 years

1.4(a)

May be
classified
h i g h e r upon
direction of
an OGA

Deployment/redeployment o f
units

G

Upon c o m p l e t i o n
of mission or
following
r e l e a s e by
n a t i o n a l command
authorities,
whichever i s
sooner

1.4(a) /
1.4(g)

May be
classified
h i g h e r upon
direction of
the GGJ4/^
OGA

Force p r o t e c t i o n
analysis

S

Upon c o m p l e t i o n
of mission

1.4(g)

Includes
intelligence
e f f o r t s and
threat
weapons

S

10 years

1.4(a) /
1.4^g)

Purpose o f
facility is
classified.
Description
as s c h o o l
house^^ i s
unclassified.

Information

Revealing

threat

I d e n t i f i c a t i o n of forward
h^^d^^^t^r^

A-7

FOROFFICIALUSEONLY

Remarks
Negotiations
of
construction
projects,
Alt^, customs
issues, e t c

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LOGISTICS AND ENGINEERING (GCJ4/^) Gont.
Classification

Declassification

Reason

S

10 years o r upon
completion o f
mission,
whichever i s
sooner

1.4(g)

C l a s s i f i e d when
inventory i s
r e l a t e d t o days
o f war s u p p l y

M08STR-8

S

Upon c o m p l e t i o n
of mission

1.4(g)

Location/
c a p a b i l i t i e s of
r e l a y system f o r
U2

Movement o f ammunition,
a i r c r a f t , personnel,
u n i t s , o r communications
equipment

G

Upon c o m p l e t i o n
of mission

1.4(a) /
1.4(g)

May be
classified
h i g h e r upon
d i r e c t i o n o f an
OGA

G

Upon c o m p l e t i o n
of mission

1.4(a) /
1^4(g)

May be
classified
h i g h e r upon
d i r e c t i o n of the
CGJ4/^ OGA

Number of a i r c r a f t i n AOR

S

Upon c o m p l e t i o n
of mission

1.4(g)

Proposed U.S. p o s i t i o n s o r
strategy of negotiations

C

Upon c o m p l e t i o n
of mission

1.4(a) /
1.4(d)

War r e s e r v e stockage

S

10 years

1.4(a) /
1.4(g)

Information
JAl f u e l

Revealing

inventory

Movement o f s e n s i t i v e o r
critical
supplies/personnel

data

^

A-^

FOROFFICIALUSEONLY

Remarks

Coalition
a i r c r a f t report
(If
classification/
declassification
i n s t r u c t i o n s are
n o t s p e c i f i e d by
JGS/HN)
Negotiations of
construction
projects,
assistance i n
k i n d (AII^),
customs i s s u e s ,
etc.

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PLANS AND POLICY (GGJ5)
Information Revealing

Remarks

Classification

Declassification

Reason

5eddown s i t e s

S

10 years o r upon
plan execution,
i f executed

1.4(a)

Gapabilities-based
munitions requirements

S

10 years

1.4(a)

Chemical/biological
weapons and
p r o l i f e r a t i o n plans

s

10 y e a r s

1.4^a) /
1.4(h)

Command and c o n t r o l
relationships

u

N/A

N/A

Gommander^s i n t e n t

s

10 years

1.4(a)

TS

10 y e a r s

1.4(a)

s

10 y e a r s

1.4^a)

E s s e n t i a l elements o f
friendly information
(EEFI)

s

10 years

1.4(a)

Complete d e t a i l e d
list

Force

s

10 years

1.4(a)

C o n f i d e n t i a l upon
plan execution

HN p a r t i c i p a t i o n

s

10 years o r upon
plan execution,
i f executed

1.4(a) /
1.4(b)

J o i n t monthly readiness
r e v i e w (JMRR)

s

10 years

1.4(a)

Deception p^ans f o r
operations
Defended a s s e t s
(DAL)

list

lists

A-9

FOROFFICIALUSEONLY

C o n f i d e n t i a l upon
plan execution

34867

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PLANS AND POLICY (GGJ5) Gont.
Information
Revealing

Classification

Declassification

Reason

Location and
designation of
USCENTCOM
representatives

U

N/A

N/A

Mission statements

S

10 years

1.4(a)

N8G operations

S

10 years

1.4(a)/1.4(
h)

Plan b r i e f s

10 years

1.4(a)

Plan phasing

s
s

10 years

1.4(a)

Planning d i r e c t i v e s

s

10 years

1.4(a)

Planning milestones,
i n t e r n a l suspense
dates

u

N/A

N/A

Rules o f engagement

s

10 years or upon
plan execution,
i f executed

1.4(a)

Strategic concepts

s
u

10 years

1.4(a)

N/A

1.4(a)

u

N/A

N/A

u

N/A

N/A

- U.S. u n i t name
w i t h EAD/LAD

u

N/A

N/A

- U.S. u n i t name
w i t h UIC/ULN

u

N/A

N/A

TPFOD plan
i d e n t i f i e r s , excepts
- Aggregate
tonnage/pax
- U.S. u n i t name and
destination

^om i n ^ d

(except SOF)

A-10

FOROFFICIALUSEONLY

Rem^arks

C o n f i d e n t i a l upon
plan execution

C o n f i d e n t i a l upon
plan execution

34868

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PLANS AND POLICY (GGJ5) Gont.
Classification

Declassification

Reason

- ULN and d e s t i n a t i o n

U

N/A

N/A

- ULN and EAD/LAD

U

N/A

N/A

- O r i g i n , UIC, and ULN

U

N/A

N/A

- F l i g h t plans f o r
l o g i s t i c s support

U

N/A

N/A

War p l a n s h o r t t i t l e
combined w i t h l o n g
title

S

10 years

1.4(a)

War p l a n s h o r t t i t l e o r
long t i t l e standing
alone

u

N/A

N/A

Information

Revealing

A-11

FOROFFICIALUSEONLY

Remarks

34869

380-14

FOROFFICIALUSEONLY
DELIBERATE WAR PLANS ^CCJ5-P)
Information revealing

Classification

Declassification

Reason

C h a r a c t e r i s t i c s o f U.S.
weapons and r e l a t e d
sustainability

S

10 y e a r s

1.4(a)

Communications
effectiveness,
sustainability,
limitations

S

10 y e a r s

1.4(a)

Concept o f o p e r a t i o n s
i n c l u d i n g order o f
b a t t l e , execution
circumstances, operating
l o c a t i o n s , resources
required, t a c t i c a l
maneuvers, deployments,
a c t i o n s and o b j e c t i v e s

S

10 y e a r s

1.4(a)

DEFGON meaning and s t a t u s

S

10 years

1.4(a)

Synchronisation matrices

s
s
s

10 years

1.4^a)

10 years

1.4(a)

10 y e a r s

1.4(a)

s

10 y e a r s

1.4(a)

Plan(s)

timelines

Flexible deterrent
options
Estimates o f operational
effectiveness of
intelligence,
counterintelligence,
rescue, and
reconnaissance

A-12

FOROFFICIALUSEONLY

Remarks
May be c l a s s i f i e d
h i g h e r upon
d i r e c t i o n o f an
OGA
^

C o n f i d e n t i a l upon
plan execution

34870

380-14

FOROFFICIALUSEONLY
DELIBERATE WAR PLANS (GGJ5-P) Gont.
Information revealing

Classification

Declassification

Reason

L i m i t a t i o n s and
v u l n e r a b i l i t i e s o f U.S.
f o r c e s i n t h e combat
area

S

10 years

1.4(g)

Location, i t i n e r a r i e s ,
and t r a v e l modes o f key
U.S. and f r i e n d l y
m i l i t a r y and c i v i l i a n
leaders

S

10 years

1.4(a)

N u c l e a r weapons^
p o t e n t i a l use o f

S

10 years

1.4(a) /
1.4(h)

O p e r a t i o n code words

S

10 years

1.4^a)

Participating
units,
including types,
vulnerabilities,
locations,
quantities,
readiness s t a t u s ,
deployments,
r e d e p l o y m e n t s , and
d e t a i l s o f movement o f
U.S. f r i e n d l y f o r c e s

S

10 years

1.4(a)

Plan c l a s s i f i c a t i o n
guide

G

10 years o r upon
plan execution,
i f executed

1.4(a)

Planning

S

10 years o r upon
plan execution,
i f executed

1.4(a)

assumptions

A-13

FOROFFICIALUSEONLY

Remarks

C o n f i d e n t i a l upon
e x e c u t i o n o f VIP
travel

C o n f i d e n t i a l upon
plan execution

34871

380-14

FOROFFICIALUSEONLY
DELIBERATE WAR PLANS (GGJ5-P) Gont.
Information revealing

Classification

Declassification

Reason

Status and d e t a i l s of
U.S. a l l i a n c e s ,
i n c l u d i n g status of
forces, deployment
rights, privileges,
a i r f i e l d use, and port
availability

S

10 years

1.4(a) /
1.4(d)

Friendly centers of
gravity

S

10 years

1.4(a)

War termination
objectives

S

10 years

1.4(a)

End state of plan

S

10 years

l,4(a)

Target area weather
information

s

10 years or upon
plan execution,
i f executed

1.4(a)

Top secret options;
discussion of

TS

10 years

1.4(a)

S

10 years

1.4(g)

L i m i t a t i o n s and
v u l n e r a b i l i t i e s of U.S.

Remarks

^

A-14

FOROFFICIALUSEONLY

34872

380-14

FOROFFICIALUSEONLY
COMMAND AND CONTROL, COMMUNICATIONS, AND COMPUTER SYSTEMS ^GGJ5)
Classification

Declassification

Reason

Communications n e t w o r k s ,
users, frequencies, c a l l
s i g n s , HJ t i m e s , and
i d e n t i f i c a t i o n o f net
control stations

S

When superceded

1.4(a) /
1.4(g)

GOMSEG
incidents/violations

G

10 y e a r s

1.4(g)

Composite l i s t o f GOMSEG
short t i t l e s

C

10 y e a r s

1.4(c)

Cryptology

S

10 y e a r s

1.4(c)

Communication o u t a g e s
t h a t degrade command and
control capability

s

Upon r e s t o r a t i o n
of c a p a b i l i t y

1.4(g)

Scheduled down t i m e s o f
communications systems

s

10 y e a r s

1.4(g)

GGGS User ID

u
s
s

N/A

N/A

When changed

1.4(a)

Upon
redeployment

1.4(a) /
1.4(g)

s

10 y e a r s

1.4(d)

Information

revealing

GCGS Password
Specific locations of
d e p l o y e d communications
units
Specific locations or
c o u n t r i e s planned f o r
employment o f elements o f
Defense Communications
Systems - C e n t r a l Area
(DCS-CA)

A-15

FOR OFFICIAL USE ONLY

Remarks

34873

380-14

FOROFFICIALUSEONLY
COMMAND AND CONTROL, COMMUNICATIONS, AND COMPUTER SYSTEMS (CCJ^) Gont.
Classification

Declassification

Reason

Specific locations or
c o u n t r i e s i n which DCSGA a r e employed

S

10 years

1.4(d)

Details revealing
specific units
s u p p o r t e d by DGS-GA

S

10 y e a r s

1.4(c) /
1.4(g)

Details revealing force
l o c a t i o n s , by t y p e , f o r
war p l a n employment o f
DGS-GA

S

10 years

1.4(a)

Specific locations or
c o u n t r i e s i n t h e AOR i n
which communication
equipment i s i d e n t i f i e d
as s u p p o r t i n g t h e DGSGA

s

10 years

1.4^d)

I d e n t i f i c a t i o n o f an
operational s h o r t f a l l
or l i m i t a t i o n I n warfighting capabilities
o f DGS-GA

s

Upon c o r r e c t i o n

1.4(g)

Details of the
capability required t o
achieve t h e i n i t i a l
operational capability
o f DGS-GA

s

Upon f u l l
operational
capability

1.4(g)

Information

revealing

A-16

FOROFFICIALUSEONLY

Remarks

34874

380-14

FOROFFICIALUSEONLY
COMMAND AND CONTROL, COMMUNICATIONS, AND COMPUTER SYSTEMS (GGJ^) Gont.
Classification

Declassification

Reason

A description of the
DGS-GA system and
d e t a i l s o f the
capability required t o
achieve f u l l
operational c a p a b i l i t y

U

N/A

N/A

A d e s c r i p t i o n o f the
c o m p o s i t i o n o f a DGS-GA
node a t f u l l
operational c a p a b i l i t y

U

N/A

N/A

Characteristics of the
DGS-GA

U

N/A

N/A

Gost/Budget d a t a on t h e
DCS-CA

U

N/A

N/A

I d e n t i f i c a t i o n of the
agencies r e s p o n s i b l e
for t h e v a r i o u s aspects
o f system a c q u i s i t i o n ,
implementation,
o p e r a t i o n , and
maintenance

U

^BA

N/A

Required c a p a b i l i t y
dates, i n i t i a l
operational c a p a b i l i t y ,
and f u l l o p e r a t i o n a l
c a p a b i l i t y dates

U

N/A

N/A

Frequencies

U

N/A

N/A

S

When superceded

1.4(a)

Information

revealing

lists

Contingency and
Operational Joint
Communications
Electronics Operating
I n s t r u c t i o n s (JGEOI)

A-17

FOROFFICIALUSEONLY

Remarks

Unclassified f o r
t r a i n i n g w i t h i n the
U.S. r ^ ^ l ^ a ^ a b l ^ t o
MNF when p a r t o f
Coalition

34875

380-14

FOROFFICIALUSEONLY
COMMAND AND CONTROL, COMMUNICATIONS, AND COMPUTER SYSTEMS (CGJ^) Cont.
Classification

Declassification

Reason

Frequency l i s t s used i n
the AOR associated w i t h
the location/coordinates,
date/times of use,
operating u n i t s , and
d e t a i l e d purpose of the
frequency (Examples Force
Protection Net)

S

When superseded

1.4(a)

Frequency l i s t s used i n
the AOR required f o r
coordination w i t h the host
nation may only be
associated w i t h the
location/coordinates,
date/times o f use of the
frequency (Example- Land
Mobile Radio
Communications)

u

N/A

N/A

J o i n t R e s t r i c t e d Frequency
L i s t i n g s (JRFL)

S

When superceded

1.4(a)
/
1.4(c)

Information revealing

A-18

FOROFFICIALUSEONLY

Remarks
List of
frequencies alone
are Unclassified

Information
required t o be
released i s
considered FOUO
(DOD 5400.7-R)

Releasable t o MNF
when part of the
Coalition.
Determined by
Command E l e c t r o n i c
Warfare O f f i c e r
(EWO)

34876

380-14

FOROFFICIALUSEONLY
RESOURCES AND ASSESSEMENT (GGJ^-AR)
Classification

Declassification

Reason

Remarks

Products of analysis by
USCENTCOM operations
research analysts

S

10 years

1.4(a)

May be c l a s s i f i e d
higher i f i t
incorporates
information of a
higher
c l a s s i f i c a t i o n or
upon d i r e c t i o n of an
OGA

Requirements documents
i d e n t i f y i n g USCENTCOM
f u t u r e operational
needs i n support of GDR
USCENTCOM strategy

S

10 years

1.4(a) /
1.4 (b)
/ 1.4
(e) /
1.4 (g)

Information revealing

A-19

FOROFFICIALUSEONLY

34877

380-14

FOROFFICIALUSEONLY
SCIENTIFIC ADVISOR (GGJ^-TI)
Classification

Declassification

Reason

V u l n e r a b i l i t i e s of new
m i l i t a r y technologies

S

10 years or upon
correction, i f
corrected

1.4(e) /
1.4(g)

New operational concepts
based on a p p l i c a t i o n o f
new technologies

S

25 years

1.4(e)

Requirements documents
identifying c r i t i c a l
m i l i t a r y deficiencies

s

10 years

1.4(g)

Information

revealing

A-20

FOROFFICIALUSEONLY

Remarks

34878

380-14

FOROFFICIALUSEONLY
COMMAND GROUP (GGGC)
Information revealing

Classification

Declassification

Reason

Remarks

Detailed t r a v e l
i t i n e r a r y of USCENTCOM
Commander

s

Upon completion
of t r a v e l

1.4(a) /
1.4(g)

C l a s s i f i e d when
information reveals
name/title
associated w i t h
dates/times or
locations

Detailed t r a v e l
i t i n e r a r i e s of
^
General/Flag o f f i c e r s
and c i v i l i a n equivalent

C

Upon completion
of t r a v e l

1.4(a) /
1.4(g)

C l a s s i f i e d when
information reveals
name/title
associated w i t h
dates/times or
locations

A-21

FOROFFICIALUSEONLY

34879

FOR OFFICIAL USE ONLY

Attack the Network - Defeat the Device - Train the Force

SECURITY CLASSIFICATION GUIDE
for

JOINT IMPROVISED EXPLOSIVE DEVICE DEFEAT
ORGANIZATION (JlEDDO)

DISTRIBUTION STATEMENT D: Distribution authorized to the Department of Defense
and U.S. DoD contractors only, administrative or operational use, effective the approval
date of this document. Other requests for this document shall be referred to the
JlEDDO Security Office.
This document contains Information
EXEMPT FROM MANDATORY DISCLOSURE
Under the Freedom Of Information Act (FOIA).
Exemption 2 applies.

3

FOR OFFICIAL USE ONLY

APPELLATE EXHIBIT
PAGE REFERENCED:
PAGE
OF
PAGES

£AJCLA-

34880

FOR OFFICIAL USE ONLY

Security Classlficafton Guide
for
Joint Improvised Explosive Device Defeat Organization (JlEDDO)

Date:

Approved By:
Michael D. Barbero, LTG
Director
Joint IED Defeat Organization

Issued By:

Joint IED Defeat Organization
5000 Army Pentagon
Washington, DC 20310-5000

Action Officer:

Mr. John E. Nimitz
Security Officer/SSR
Joint IED Defeat Organization
703-601 -4744

FOR OFFICIAL USE ONLY

34881

FOR OFFICIAL USE ONLY

1. PURPOSE
This Security Classification Guide (SCG) is a living document that provides guidance
and instructions on the classification, marking and distribution of information involved in
the development and eventual employment of tactics, techniques, procedures (TTP)
and technologies that enable the Joint Improvised Explosive Device Defeat (IED)
Organization (JlEDDO) to defeat the IED threat. This SCG addresses security
measures to safeguard developmental efforts within the organization as well as already
developed end items that require ongoing protection measures. As the organization
matures, JlEDDO will update the SCG to address additional IED defeat developmental
efforts requiring protection. Future revisions to this SCG will update declassification
dates in light of fielding dates and other program milestones, as well as technology
commercialization and/or obsolescence. Any suggested changes or updates to this
SCG will be provided in writing to the Office of Primary Responsibility (OPR) as
indicated in paragraph three.
2, AUTHORITY
This SCG is issued under authority of Executive Order (E.O.) 12958, as amended 25
March 2003, and DoDI 5200.1-R (Information Security Program). This SCG constitutes
authority and may be cited as the basis for classification, downgrading, or
declassification of material related to the JlEDDO activities in support of DoD Directive
2000.19E, Joint Improvised Explosive Device Defeat. Unless otherwise noted,
information or material identified as CLASSIFIED by this SCG is classified by authority
of the JlEDDO Original Classification Authority identified on the title page.
3. OFFICE OF PRIMARY RESPONSIBILITY (OPR)
This SCG is issued by and all inquiries for information concerning its content should be
addressed to the Joint Improvised Explosive Device Defeat Organization (JlEDDO),
Attn: Director, 5000 Army Pentagon, Washington DC 20310-5000.
4. CLASSIFICATION CHALLENGES
Questions concerning the content and interpretation of this SCG should be directed to
the issuing activity. If the security classification imposed by this SCG is considered
impractical, documented and justified recommendations should be made through
appropriate channels to the issuing activity. If current conditions, progress made in this
effort, scientific or technological developments, advances in the state-of-the-art or other
factors indicate a need for changes, similar recommendations should be made.
Pending a final decision, the information involved will be protected at either the currently
specified level or the recommended level, whichever is higher. All users of this SCG
are encouraged to assist in improving its currency and adequacy. Any classification
challenges should be brought to the attention d the OPR.
3
FOR OFFICIAL USE ONLY

34882

FOROFFICIALUSEONLY
5 . R E P R 0 0 U C T I 0 N ^ E ^ R A 0 T I 0 N A N 0 0ISSEMINATI0N
Copies of this SCG and all extracts thereof will be made, stored, and transmitted in
accordancewith (lAW)authorizedprocedurescorrespondingtotheclassificationdthe
information involved. Authorized recipients of this SCG may reproduce, extract, and
disseminate thecontentsofthis SCG,as necessary, forusebyspecified groups,
including industrial activities that are involved in IED Defeat development, test, or
operations.
^.PUBLIC RELEASE
The fact that this SCG contains certain details of unclassified information does not
permit automatic public release of the information. Proposed public disclosures of the
JIEDDO s unclassified information regarding the technologies and activities shall be
processed through appropriate channels for approval to publish. Requests for public
release certification must be submitted in accordance with DoD Directive 5230.9
(ClearancedDoDlnformationforPublicRelease),DoD Regulation 54007(DoD
FreedomdlnformationActProgram),andthelndustrialSecurityManualfor
Safeguarding Classified Information (Section5Disclosure). Defense contractors,
militarymembersaswellasgovernmentserviceemployeesshallcomplywithDoD
Manual 522022 M(National Industrial SecurityProgram Operational Manual
(NISPOM)) and other requirements that may be directed bythe Government
Only information that has been reviewed and certified for public release may be
released. l-lowever,the decision or authority to release information belongs to ihe
Public Affairs office. The OPR will process requests for approval as outlined below.
Any proposed release to the public of official information pertaining to the JlEDDO must
be forwarded to the JlEDDO, STRATCOM for review and further processing. The term
^Telease applies, but is not limited to, articles, speeches, briefs, papers, photographs,
brochures, advertisements, displays, presentations, etc., on any JlEDDO related
activity. It is incumbent upon defense contractors, or other agencies, to screen all
information submitted by them for the material certification to ensure that it is both
unclassified and technically accurate. Letters of transmittal shall contain certification to
this effect The number of copies produced, and distribution of the document, must be
strictly controlled until review is completed If suspected classified information is found
during the review process, all holders of the document will be informed of the degree of
protection required. When doubt exists concerning the classified status ofaproposed
release pertaining to the JlEDDO,Security will render the final decision. Thematerial
submitted for review must includeavalid suspense date,if applicable. Requestsfor
public release certification, according to DoD Manual 5220.22 M, NISPOM (attachment
to DD Form 441, Security Agreement), must be submitted to the JlEDDO, STRATCOM
for review and further processing. Electronic copies (unless submitted via Secret
IntemetProtocol Router Network (SIPRNet))ofthe proposed public release material
must be submitted to JlEDDO, STRATCOM at least two weeks before approval is
needed.

FOROFFICIALUSEONLY

34883

FOROFFICIALUSEONLY

Approval for public release does not necessarily satisfy export-licensing requirements of
the Departments of State and Commerce. Export controlled material will not be entered
into the security review channels for public release approval to circumvent the licensing
requirements of the Departments of State and Commerce.
Release of Program Data on the World Wide Web: Extreme care must be taken when
considering information for release onto publicly accessible or unprotectedWorld Wide
Websites. In addition to satisfying all of the aforementioned approval provisions,
owners and^or releasers of information proposed for such release must ensure that itis
not susceptible to compilation with other information to render sensitive or even
classified data in the aggregate. The search and data mining capabilities ofWeb
technology must be assessed fromarisk management perspective. If there are any
doubts, do not release the informations
Release of information to foreign government service employees, international
organizations and^or their representatives: Any military activity or defense contractor
receiyingarequestfor,orproposingtoreleaseinformationonthis program willforward
such requests^proposals to the OPR, after compliance with the following:
^

Military activities will complywith ihe National Policy and Procedure for
the Disclosure of Classified Military Information to Foreign Governments
and International Organizations (NDP-1).

^

Defense contractors will comply with the Department of State
InternationalTraffic in Arms Regulation (ITAR).

NOTE:Foreign national employeesofthecontractororsubcontractor,includingthose
possessingreciprocalclearances,arenotauthorizedaccesstoclassified information
resulting from or used in the performance of their contract unless authorized in writing
bytheOPRContractorsshall ensure thatthis SCG,including allapplicablestandard
securityprecautionsand regulations identified intheirDD Form 254, ContractSecurity
Requirement, are complied with. Prime contractors are responsible for ensuring each of
their subcontractors are aware of, and comply with, these requirements. Material
proposed for release by subcontractors will be routed through their prime contractor.
Release of information to the United States Agencies: Requests will be submitted to the
OPR
Release of information at symposia, seminars, and conferences: Requests for such
releases of classified information shall be submitted to the OPR for review and
approval. Material will be submiitedaminimum of six weeks prior to proposed release
date in electronic format Any information authorized for release will reflect that the
work reported upon is sponsored bythe DoD Ifforeignnationalsareexpectedto be
presentatsuchaconference,theprovisionsofparagraph7belowmustbefollowed
^
FOROFFICIALUSEONLY

34884

FOROFFICIALUSEONLY
Use of information or data classified byaforeign government If information or data has
been previously classified byaforeign government,this information or data will be
classified atalevel which will accord at least the same degree of protection as provided
by the foreign government classification. This procedure will be adhered to even though
ahigher classification than that normally imposed by theU.S.for the same type of
information will result
^.FOREIONOISCLOSURE
Foreign disclosure is the sharing of US classified information with foreign governments
or international organizations in support of established or approved planned
international programs. Any disclosure to foreign officials of information classified by
this SCG shall be in accordance with the procedures set forth in DoD Directive (DoDD)
5230 11, DoDI 5230.27 and National Disclosure Policy (NDP1). Aforeign disclosure
review shall be conducted prior to issuance of any solicitation. This review should result
inadeterminationregardingwhich foreign governmentsand international organizations
(and their industrial entities) will be permitted to participate in the solicitation.
General Release Guidance: Classified information is only released to properly cleared
personsonaneedtoknowbasisandthroughgovernmentiogovernmentchannelslt
istheresponsibilitydtheindividualactuallyreleasingtheinformationtoverifythatthe
recipient isaforeign official authorized to receive classified information on behalf of
his/her government or international organization and that information has been properly
approved for release. JlEDDO personnel originating material classified by this guide
will mark it as it is created in accordance with DoDI 5200.1 R, ^^Information Security
Program, January1997 JlEDDO information developed within combined spaces is
presumed to be releasable to foreign nations represented in those spaces and should
be marked ^^^CLASSIFICATIONj^^REL TO USA, ^COUNTRY OR ORGANISATION
CODEj.^^ When information is derived from multiple sources, the most restrictive
handlingand declassification instructionsapplytothederived document Classified
information not explicitly marked releasable toaparticular country shall not be released
without proper authorization from the originating Foreign Disclosure Officer.
Accordingto DODD5230 11,under conditionsofactualorimminenthostilitiessuch as
Operation Iraqi Freedom or Operation Enduring Freedom, any unified or specified
commander may disclose classified military information (CMI)throughTOP SECRET to
an actively participating allied force when support of combined combat operations
requires the disclosure of that information. Under such circumstances, the Chairman,
National Disclosure Policy Committee will issue further guidance determining any
limitations that should be imposed on continuing disclosure of that information. When
an authorized disclosure official (such asaForeign Disclosure Officer (FDO))has made
adetermination that CMI originated by JlEDDO is releasable under these conditions,
the FDO should markthat information (CLASSIFICATION^^^ REL TO USA, ^COUNTRY
OR ORGANI^TIONCODE^, and forv^ard an information copyto the JlEDDO FDO.
Aforeigndisclosurereviewshallbeconductedpriortoissuanceofanysolicitation This
review should resultinadeterminationregardingtheirforeign governmentsand

FOROFFICIALUSEONLY

34885

FOROFFICIALUSEONLY
international organizations (and their industrial entities) permitted to participate in the
solicitation.

8, FOREIGNOO^ERNMENTINFORMATION ANO FOREIGN MILITARYSALES
U.S. government information is furnished upon the condition that it will not be released
to other nations without specific authority of the DoD of the United States. Subject
releaseofinformationprovidesihat individual orcorporaterightsoriginatingthe
information will be provided substantiallythesamedegreeofsecurityaffordeditbyihe
Department of Defense of the United States.
9. FOR OFFICIAL USE ONLY(FOUO) CAVEAT
ForOfficial Use Only (FOUO) is notasecurity classification. FOUO information has not
beengivenasecurityclassificationpursuanttothecriteriainthisSCG,butmaybe
withheld from the public for one or more of the reasons cited in E012958, as amended,
and DoDI 5200 1 Rlnformationsodesignated in this SCGthatwarrants FOUO
markingswill be handled and protected in accordancewith regulations The SCG for
Freedom OflnformationAct (FOIA) markings isintended solelyasaguide One, none
orallofthesuggestedFOIAexemptionsmayapplytoparticularinformationdepending
onthe particularfactsofihe information being protected ordisclosed
This document coi^tdn^li^torm^tion EXEMPT
FROM MANOATORY DISCLOSURE underthe
FOIA. E^einptioo(s) ...apply^epplies.
ALL Freedom otlntorm^tlon Act (FOIA) exemptions identiti^d in this
SCG:
Number 1. Material appropriately classified b y t h i s SCG is similarly exempt from
disclosure as National Security Information under FOIA.
Number 2. Related solely to the internal personnel rules and practices of the DoD or
anyofitscomponentsRecordscontainingorconstitutingstatutes, rules, regulations,
orders, manuals, directives, instructions, and security classification guides. This
classification encompasses l-ligh^^^ information (i.e.information that would allow
persons to circumvent or undermine JIEDDOs internal practices)and Low 2^^
information (i.e.,information ofatrivial administrative nature.)
Number 3. Records protected by another law that specifically exempts the information
from public release. Applicable to technical Controlled Unclassified Information (CUI).
Number 4. Containing trade secrets or commercial or financial information thataDoD
Component receives fromaperson or organization outside the Government which is
likely to cause substantial harm to the competitive position of the source, impair the
Government s ability to obtain necessary information in the future, or impair some other
7
FOROFFICIALUSEONLY

34886

FOROFFICIALUSEONLY
legitimate Government interest Some examples: Commercial or financial information
received in confidence in connection with bids, contracts, or proposals: statistical data
andcommercialorfinancial information concerningcontractperformance, income, etc :
personalstatementsgiveninthecoursedinspections, investigations, oraudits:
financial data provided in confidence by private employers in connection with locality
wage surveys: scientificand manufacturing processesordevelopmentsconcerning
technical orscientificdata or otherinformationsubmiitedwith an applicationforagrant
orwithareportwhileresearch is in progress:technicalorscientificdata developed b y a
contractor or subcontractor exclusively at private expense and technical or scientific
data developed in part with federal funds and in part at private expense: computer
softwarewhichiscopyrighted:or,proprietaryinformation submitted strictlyona
voluntary basis.
Number 5. Subjective evaluations that are reflected in records pertaining to the
decision-making process of an agency. Examples are: advice, suggestions or
evaluations prepared on behalf of the DoD: non factual portions of evaluations by DoD
component personnel of contractors and their products: information ofaspeculative,
tentative or evaluative nature: trade secret or other confidential research development:
and portions of official reports on inspection, reports of the IG, audits, investigations, or
surveys pertainingtosafety,security,orthe internal management, administrationor
operation of one or more DoD components.
to. DISTRIBUTION STATEMENT
Distribution statements are required to be placed on all technical documents no matter if
theyareclassifiedorunclassified Exportcontrolledwarningnoticeswillbeappliedonly
to technical documents containing critical technology. These notices will be placed on
thefront cover o r f i r s t p a g e o f t h e d o c u m e n t W h e n possible, partsthat contain
informationcreatingtherequirementforadistributionstatementorotherwarningnotice
shall be prepared as an appendix to permit broader distribution of the basic document
Technical documents contain information (experimental, developmental, engineering
works) that can be used to define an engineering or manufacturing process or to design,
procure,produce,support, maintain,operate,repair,or overhaul material. The
information maybe intext, graphic, orpictorialform
The following statements will be applied to all technical documents as defined as above:
DISTRIBUTION STATEMENT D: Distribution authorized to the
Department of Defense and U.S. DoD contractors (fill in reason)
(date of determination). Other requests for this document shall
be referred to the JlEDDO Security Office.
Reasons for applying distribution D:

8
FOR OFFICIAL USE ONLY

34887

FOROFFICIALUSEONLY
Foreicn Government Information: Toprotect and limit distribution in accordance with
the desires of the foreign government that furnished the technical information.
Administrative or Operational Use: Toprotect technical or operational data or
information from automatic dissemination under the International Exchange Program or
by other means. This protection covers publications required solely for official use or
strictly for administrative or operational purposes. This statement may be applied to
manuals, pamphlets, technical orders, technical reports, and other publications
containingvaluabletechnicaloroperationaldata
Software Documentation: Releasable only in accordance with DoD Instruction 7930.2,
Automatic Data Processing (ADP) softwareexchangeand release
Transfer of data from SIPR t o a C D : Transfer of data from SIPR t o a C D : Any data that
needs to be transferred from SIPR t o a C D must be done in accordance with US
CYPERCOMCTO10133 Currently J6 and STRATCOM are the onlyauthorized
divisionsthattransfer data All CDwith SIPR Data orhighermustbeartheproper
security marks (AR 380-5). Any CD(s) that needs to be mailed^hand carried out of the
Polk building must go throughJIEDDOSecurityForfurther guidance, pleasecontact
JlEDDO Security.
CriticalTechnolooy: Toprotect information and technical data that advance current
technologyor describe newtechnologyinanareadsignificantorpotentiallysignificant
military application or that relate toaspecific military deficiency ofapotential adversary.
Information of this type may be classified or unclassified: when unclassified, it is exportcontrolled and subject to the provisions of DoDD 5230.25. Apply the following notice to
thefrontcoverortitlepage:
l^^rr^^r^^
T^^^doc^r^er^t^or^ta^r^^te^^n^^a^data^^o^ee^port^^
re^tr^ctedt^yt^e^r^^E^po^^ontro^B^^t^^t^e^^,tB^^^^e^^^^^
etd^rt^e^^portB^dr^^^f^trat^onB^cto^t^7^^,a^^rr^eoded(T^t^e^^,
t B ^ ^ , ^ p p ^ 4 ^ t e t d . ^^o^at^on^o^t^e^eexport^^^^are^^h^e^tto
^eve^ecr^^^r^a^pena^t^e^.
Specific Authority^ Toprotect information not specifically included in the above reasons
and discussions, but which requires protection in accordance with valid documented
authoritysuch as executiveorders, classification guides, DoDorDoDcomponent
regulatory documents. When filling in the reasons, cite ^ Specific Authority (identification
of valid documented authority),
Ai times, ihe application ofadifferent distribution statement may be necessary to
facilitatesharingbetweenUSgovernmentagencies (Distribution StatementsBandC)
or to limit dissemination based upon the Director s discretion (Distribution Statement F).
Further exceptions for the use of another distribution statement shall be submitted to the
JlEDDO SecurityOffice,inwriting, with justification
^
FOROFFICIALUSEONLY

34888

FOROFFICIALUSEONLY
tt,DISCLOSURE OFINTELLIGENCETHREATINFORMATION
Data or information relating to threat systems or other intelligence derived material must
bear the security markings of that intelligence^threat material. All dissemination of
intelligence^threat information is controlled bythe Director,COIC Intelligence^threai
information may be reproduced, released to subcontractors, provided instructions, and
procedures approved by the COIC Director. Intelligence^threat information may be
reproduced, released to subcontractors, provided instructions, and procedures
approved by the Senior Intelligence Officer (SIO) are followed. Ouestions regarding
such releases shall be referred to the SIO.
t^.LOSS^ COMPROMISED OR SUSPECTED COMPROMISE
Report the loss, compromise, or suspected compromise of classified JlEDDO
information or material to the JlEDDO Security Office, 703 601 4744, within 24 hours of
theincident
t 3 , COMPILATION OF INFORMATION
In some circumstances, classification may be required if the compilation of unclassified
items of information provide an inference that warrants classification. Similarly,ahigher
classification may be assigned toacompilation of information if the compilation provides
an added factor that warrants higher classification than that of its component parts.
Classification on this basis will be used sparingly, and complete justification of this
classification method will be stated on the title or first page of the document The
classification and marking process is as follows:
^

Whenadocument comprises individually unclassified itemsof
information is classified, by compilation, the overall classification shall be
marked conspicuously atthetopandbottomof each page andthe
outside front and back covers (if applicable). An explanation of the basis
for classification by compilation shall be placed on the face of the
document or included in the text.

^

If portions, standing alone, are unclassified, but the document is
classified by compilation or association, those portions shall be marked
^^U^ and the document and pages shall be marked with the classification
ofthe compilation. An explanation of the classification or the
circumstances involved with association must be included.

^

If individual portions are classified at one level and the compilation i s a
higherclassification, each portion shall be marked with itsown
classification and the document and pages shall be marked with the
classification of the compilation. An explanation of the classification by
compilation is required.

1^
FOROFFICIALUSEONLY

34889

FOROFFICIALUSEONLY
t ^ , REASONS FOR CLASSIFYING
The reasons for classifying information in this SCG are in accordance with Part I,
SectionI.4, Executive Order12958 (as amended). They are:
1.4a-Military plans,weapons systems,or operations
1.4b-Foreign government information
1.4d-Foreign relations or foreign activities of the United States,including confidential
sources: scientific, technological, or economic matters relating to national security
1 4 e - S c i e n t i f i c , technological,or economicmatters
1.4g-^ulnerabilities or capabilities of the system,installation,projects,or plans
relatingtothenationalsecurity
t 5 . DEFINITIONS
Classified Performance Caoabilities or Limitations: Information that if disclosed
would:
1) damage national securitythroughfacilitaiingadversarydenial, degradation,
disruption, deception, or destruction of mission essential or critical system(s), or
2) would require major modifications to an acquisition program or operational
system tomaintainthe technological advantageofthesystem during its projected
operational life time.
Comoromise^FutureCaoability: Anything not in ihe inventory now and is planned to
be developed: notacurrent capability. Applies to research,development and
acquisition efforts.
Confidential: Shall be applied to information, the unauthorized disclosure of which
reasonablycouldbeexpectedtocausedamageto national securiiythattheoriginal
classification authority is able to identify or describe.
Critical lnformation:TBDbythesupported organization Different organizations may
deem information differently as to its criticality. Determination and defense of
information ascritical is uptothesupportedorganization
Critical Prooram Information ^CPI): Information, technologies, or systems that, unto
themselves, ifcompromisedwoulddegradecombateffectiveness,shorientheexpected
combateffective life ofthesystem,orsignificantlyalterprogram direction.
Effectiveness of Forces: TBD by supported organization. Usually refers to squad to
division level. Different organizations may deem information differently as to its impact
on the effectiveness of forces. For example: information that may impact the
effectiveness ofaSpecial Forces unit compared toaBattalion is potentially
considerable. Determination and defense of information is up to the supported
organization.
It
FOROFFICIALUSEONLY

34890

FOROFFICIALUSEONLY

Effectiveness of Maior Forces: TBD by supported organization. Usually refers to
theater level: unified command: combination of Military Departments (MILDEPS)
Different organizations may deem information differently as to its impact on the
effectiveness of major forces. Determination and defense of information is up to the
supported organization.
Enhanced System Caoabilitv: An improvement over existing performance or
capabilities found on similar systems.
Loiii^-Level Intellioence Collection Caoabllitv: Focused on low level
counterintelligence, ^uman Intelligence (l-IUMINT)sources,eg,bartender,beatcop,^^
o r l o w l e v e l detection capability,eg,unattended ground sensors
Mission Critical: Amission essential item whose disruption or destruction immediately
degrades the ability of the force to command, control, or effectively conduct combat
operations. For example,disruption or destruction of the mechanism used to fusea
systemofsystems(eg,C4ISR) would result inthe immediate inabilityforthe separate
system to act in concert asasystemofsystems.
Mission Essential: Those items required to support approved emergency and^or war
plans, and where those items are used to:
1)
2)
3)
4)
5)
6)

destroy the enemy or the enemys capacity to coniinue war:
provide battlefield protection of personnel:
communicate under war conditions:
detect, locate, or maintain surveillance over the enemy:
provide combat transportation and support of men and materiel: and^or
supporttrainingfunctions

National MilitaryOb^ectives:ProtecttheUnitedStatesagainstexternalatiacksand
aggressions prevent conflictandsurpriseattack,and prevailagainstadversaries These
are the endsofthestrategyand help to assurealliesandfriends, dissuade adversaries,
anddeter aggression and coercionwhileensuringthearmedforces remain readyto
defeat adversaries should deterrence and dissuasion fail. They serve as benchmarks to
assess levels of risk and help to define the types and amounts of military capabilities
required.
National Objectives (for DoD^:Theaimsderivedfromnationalgoalsand interests,
toward whichanational policy or strategy is directed and efforts and resources of the
nation are applied.
National SecurityStrateqy(forDoD): Theartandscienceof developing, applying,
and coordinating the instruments of national power (diplomatic,economic,military,and
informational) to achieve objectives that contribute to national security. Also called
nationalstrategyorgrandstrategy
:l^
FOROFFICIALUSEONLY

34891

FOROFFICIALUSEONLY

NOFORN: (NOT RELEASABLE TO FOREIGN NATIONALS) Under authority of Director
of Central Intelligence, this marking is used for identified c^^^s^^^^^c(^r^i^^^^^^r^c^ that may
not be released in any form to foreign governments, foreign nationals, foreign
organizations, or non-US citizens without permission of the originator and in accordance
with provisions of DCID6^7 and NDP1.Cannot be used with REL TO ^country codesj
or EYES ONLYon page markings (whenadocument contains both NOFORN and REL
TO or NOFORN and EYES ONLYpohions, NOFORN takes precedence forthe
markingsatthetopandbottomdthepage)
RevealaNational Security Obiective: Fact of statement that would reveal an
undisclosed objective or intention—that is covert in nature. Details of how we plan to
achieve national security objectives (primarily planning oriented).
Secret Shall be applied to information, the unauthorized disclosure of which
reasonablycouldbeexpectedtocauseseriousdamagetothenationalsecuritythatthe
originalclassificationauthorityisable to identifyordescribe
Senior Leadership: President of the US (POTUS): Cabinet Members, Pentagon
Senior Leadership, etc.
Sensitive lnformation:TBDbythesupportedorganization Different organizations
may deem information differently as to its sensitivity. Determination and defense of
information as sensitive is uptothesupportedorganization
SensitiyelntelliqenceCollectionCapability:Tobedeterminedbytheuseror
developer of that capability.
Siqnificantlmpairment Anycharacterisiicorconcept,designorcomponentthat
offersatechnicaldisadvantageof enough magnitude tobe potentiallydisruptive in an
operational or advanced system.
S t a t e o f t h e A r t : T h e h i o h e s t l e v e l of development asofadevice.technioueor
scientific field,achieved ataparticular time. Forasystemortechnologythathasno
known baseline to determine its relative level of development, the very nature of it being
the first ofakind,makes it state of the art.
StrateoicAdvantaoe: Operational superiority provided via military instruments that
enablesone nation or groupofnationseffectivelytocontrolthecourseofamilitaryor
political situation beyondabattleor engagement
StrateoicDisadvantaoe:lnverseofstrateoicadvantaoe(seeabovedefinition)

13
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34892

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Tactical Advantaoe: Operational superiority provided via unit and system performance
andcapabilities during battlesandengagementsplanned and executedtoaccomplish
militaryobjectivesassignedtotacticalunitsortaskforces
Tactical Disadvantaoe: Inverse of tactical advantage (see above definition).
Threaten the Countrys Ability to ^ a ^ e ^ a r : Identification of details ofwar plans that
would reveal overall objectives or intentions.
Too Secret Shall be applied to information,the unauthorized disclosure ofwhich
reasonably could be expected to cause exceptionally grave damage to national security
thattheoriginalclassificationauthorityisabletoidentifyordescribe.
^eal^en the Countrv s Ability to ^ a o e ^ a r : Identification of specific details of war
plans inatheater of operation including useoftacticalcapabilities and mission essential
items.
Sionificantly^eal^en the Country s Ability to ^ a ^ e ^ a r : Identification of specific
dependencies and objectives inatheater of operation or sub area ofaUnified
Commandtoincludestrategiccapabilitiesandmissioncritical items.
ThreatenthelnternationalPositionoftheUS:DamageUScredibilitywithaforeign
government
^eal^enthelnternationalPositionoftheUS:Negativeimpacttotheinternational
position ofthe US and its abilityto negotiate withforeign governments
Sionificantly^eal^en the International Position ofthe US: Inability of the US to
successfullynegotiatewithaforeigngovernmentforasignificant period oftime
Unioue and Fraoilelntellioence Collection Caoabilitv: Tobe determined bythe user
or developer of that capability.

t4
FOROFFICIALUSEONLY

34893

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34913

FOR OFFICIAL USE ONLY
SECTION X - APPLICABLE SECURITY CLASSIFICATION GUIDES
Deputy Secretary of Defense Memorandum Dated 24 Apr 2006, SUBJECT:
Policy on Discussion of lEDs and lED-Defeat Efforts in Open Sources
Operational Capabilities Infusion Team (OCIT) Technology Efforts In Support of
the Detection and Defeat of Improvised Explosive Device (IED) Classification
Guide (Revised 10 March 2004)
MNF-I / MNC-I Security Classification and Marking Guide, Version 5, Change 1,
05 Aug 2005
DoD Security Classification Guide Operation Enduring Freedom, Operation
Noble Eagle, 28 Mar 2002
USCENTCOM Security Classification Guide 0501, Dated: 9 June 2005
Classification Guidance for EC-130H and EA-6B Counter-RCIED Operations in
Operation IRAQI FREEDOM
Classification Guidance for EC-130H and EA-6B Counter-RCIED Operations in
Operation ENDURING FREEDOM
Counter Radio Controlled Improvised Explosive Service Electronic Warfare
Program Security Classification Guide, 8 August, 2006 (OPNAVINST 5513.8B88)

35
FOR OFFICIAL USE ONLY

34914

FOROFFICIALUSEONLY
SECTIONXI REFERENCES
1 Executive Order12958,as amended,5Jan 2006
2. AR 380 5, Department of the Army Information Security Program,^14Jan
2006
3 DOD 5220.22 M, National Industrial Security Program Operating Manual
(NISPOM),Jan 1995, Changel,31 Jul1997^^ Change 2,28 Feb 2006
4. AR 25 55, Department of the ArmyFreedom of Information Act Programs 15
Jan 2006
5 DOD Directive 5230 25, Withholding of UnclassifiedTechnical Data from
PublicDisclosure,6Nov 1984:Change1,8Apr1995
6 DOD Directive 5230 24, Distribution Statements onTechnicalDocumentsB8
Apr2004
DOD Pamphlet 523025 PFI, Control of UnclassifiedTechnical Data ^ith
Military or Space Application, 15Apr 2004
8 DOD 5200 1 R Information SecurityProgram,^^ Feb 2009
9. DOD5230.9 Clearance of DoD Information for Public Release,^ 22 Aug
2008
10 DOD 5230.11 Disclosure ofclassified Military Information to Foreign
Governmentsand International Organisations,^^^Feb 2006
11.DODI 5230.2^ Presentation of DoD-related Science andTechnical Papers at
Meetings,60ct198/^

36
FOROFFICIALUSEONLY

34915

UNCLASSIFIED
UNITED STATES OF AMERICA

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

Prosecution Objection to
Providing an "Example" Witness
to Examine the Viability of
Reasonable Alternative to Closure
Enclosure 3
3 April 2013

UNCLASSIFIED

EnJ ^ to
APPELLATE EXHIBITS (Z-.
PAGE REFERENCED:
,
PAGE
OF
PAQES

34916

Classification Guide Citations bv Witness
The Court may find the fbllowing classification guide sections particularly helpful in
understanding the reasoning behind classification of the information to which the below
witnesses will testify and thereby the interests risked ifthat information is improperly disclosed.
This enclosure tracks the witness numbers assigned in the Govemment's Supplement to
Prosecution Response to Scheduling Order: 39a Session on Closure and Motion to Close the
Courtroom for Specified Testimony. See AE 505. The classified classification guides cited here
are provided to the Court ex parte via Enclosure 1 of this filing. The unclassified classification
guides are provided via Enclosure 2.
1.

a. Department of State Classification Guide Subparagraphs IV A, C, D(7), G.
b. Defense Counterintelligence and HUMINT Center HUMINT Security Classification
Guide I.Band E(l), II.A.
c. CENTCOM Security Classification Guide Sections A-2, A-6, A-12.

2.

a. Department of State Classification Guide Subparagraphs IV A, G.
b. Defense Counterintelligence and HUMINT Center HUMINT Security Classification
Guide Sections I.B(36), D, E(2).

4.

a. Department of State Classification Guide Subparagraphs IV D(7), G.

6.

a. Department of State Classification Guide Subparagraphs IV A, C, D(6), G.
b. CENTCOM Security Classification Guide Sections A-2, A-6, A-12.

7.

a. Department of State Classification Guide Subparagraphs IV B, D(l)-(2) and (6).

8.

a. Department of State Classification Guide Subparagraphs IV B, D.

9.

a. Department of State Classification Guide Subparagraphs IV A, C, D(7), G.
b. Defense Counterintelligence and HUMINT Center HUMINT Security Classification
Guide Sections I.A, B, E(I).
c. CENTCOM Security Classification Guide Sections A-2, A-6, A-12.

10.

a. Department of State Classification Guide Subparagraphs IV C, D.

12.

a. Department of Defense Offensive Counterintelligence Operations Procedures and
Security Classification Guide T2(26)

13.

a. Department of State Classification Guide Subparagraph IV G.

14.

a. CENTCOM Security Classification Guide Sections A-3, A-6, A-13
b. Security Classification Guide for Joint Improvised Explosive Device Defeat
Organization page 22, 23.

15.

a. Department of State Classification Guide Subparagraphs IV A, D(2) and (5).

34917

b. CENTCOM SecurityClassification Guide SectionsA6,A7,AI2
1^.

a. Department ofState Classification Guide Subparagraphs IV B,E

17.

a. Department ofState Classification Guide Subparagraphs IVA, C.
b CENTCOM SecurityClassification Guide SectionsA2,A6,A7,A-I2

19,

a. Department ofState Classification Guide Subparagraphs IV B,D.

20,

a CENTCOMSecurityClassificationGuideSectionsA2,AI2.

21,

a. Department ofState Classification Guide Subparagraphs IV B,D.

23.

a. Department ofState Classification Guide Subparagraphs IVA, B,D,G.

2^.

a Department ofState Classification Guide Subparagraphs IVA, B,D.

27.

a. Department ofState Classification Guide Subparagraphs IVA, B,D,E,G.

2^^

a. Department ofState Classification Guide Subparagraphs IVA, B,D.

34918

Appellate Exhibit 512
Enclosure 4
33 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

34919

Appellate Exhihit512
Enclosures
33 pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

34920

UNCLASSIFIED
UNITED STATESOF AMERICA
V.

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

Prosecution Objection to
Providing an "Example" Witness
to Examine the Viability of
Reasonable Alternatives to Closure
Enclosure 6
3 April 2013

UNCLASSIFIED

Encl APPELLATE E X H I B I T . ^

;:r:f:or

http://www.alexaobiien.coni/secondsight/tag.html
34921

alexaobrien.com | blog | interviews | audio | video | features | about | in the press | contact | archives |time line | redacted names and notables

Redacted Names and Notables

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!csv file in unaiio^
the Dell .40 that could not be tied to a user profile of dated that contained 5 columns: Unique Number Data the cable was published to the Department of State
server; Message Record Number (MRN) Classification; Base64 encoding. Special Agent David Shaver Computer Crimes Investigation Command (CCIU) testified that he was able to decode the
Base64. No evidence the information was passed to an unauthorized person
10000 CIDNE [Reitman says 10000; transcriber says 100000] documented findings and reports in the unallocated space ofthe SD card allegedly obtained at the second search of Debra Van
Alstyne Bradley Manning's aunt home after having allegedly been shipped from Iraq in October 2010
12 pages of Brady matenals from interim damage assessments from November 2010 by the Federal Communications Commission the Federal Trade Commission the U.S. Department of Urban
Development the Millennium Challenge Corporation the National j^rchives and the United States Marshals Service Some of these interim damage assessments reference investigations by
ONCIX and DIA For instance the 26 November 2010 "Memorandum for the Office of the National Counterintelligence Executive (ONCIX)" the Federal Communications Commission states "As
requested this Memorandum provides the response ofthe Federal Communications Commission (FCC) as requested by the NCIX memo dated 26 October 2010" Similarly the 19 November 2010
letter from the U.S. Department of Housing and Urban Development is addressed to the DIA. Moreover the DIA is overseeing the Information Review Task Force an investigation into the alleged
disclosures Further the interim damage assessments also reveal the Office of the Director of National Intelligence (ODNI) has relevant investigative files See letter from United States Marshals
("On October 13 2010 the Office of the Director of National Intelligence (ODNI)... provided a checklist of questions that it recommended each agency impacted by [WL] dissemination use to
assess the impact on its operations")
14 hard drives from PFC Manning T-SCIF
14 hard drives from PFC Manning T-SCIF Government "Encase forensic images requested by Defense is within Department of Defense (DoD) but it is classified. Some factual showing for
materiality total drives reason. The unit redeployed July 2010 and pulled from the redeployment all computers with a user profile of Bradley Manning. Any of those drives they collected. Then the
unit was free to discard and DX all the procedures post deployment any additional drives in September 2010. Defense request to preserve Encase was made in September 2011 when the unit
was down range. Keeps all theater equipment. We notified Army CID
166 charged documents from the Department of State (State Department) (DoS)
17 April 2012 Memorandum for Principal Officials of Headquarters Department ofthe Army "[i]t was only recently determined that no action had been taken by HQDA pursuant to the 29 July 11
memo from DOD (Department of Defense) OGC (Office of the General Counsel)"

2007 Apache Airstrike (Collateral Murder)
2008 PowerPoint Presentation (PPT) for comective training on infosec. How to handle it; if you are a person with access...how it could be dangerous. There are sources looking for info on military.
Different types: foreign governments enemies spies and hackers
2012 $1 to $2 Mlllon forecasted contracting opportunity for the FBI in Fairfax VA for "WikiLeaks Software and Hardware" for incumbent contractor ManTech dated November 7 2011
22.225.41.22 (.22) Alienware SIPRNet computer Bradley Manning shared at the T-SCIF workstation with Sergeant Chad Madaras
22.225.41.40 (.40) Dell SIPRNet computer Bradley Manning shared at the T-SCIF workstation with Sergeant Chad Madaras
24/7 WikiLeaks Working Group

2703(d) Orders
35F or 35 Fox
63 agencies and other organizations the Govemment has claimed to have contacted
706 Board
72 addresses in the unallocated space of Manning's MacBook Pro that reference to a Thunderbird email cache
72.66.112.117 resolved to Verizon Communications and was connected to the account of Bradley Manning's aunt Debra Van Alstyne
84 emails provided to defense by the Govemment
84 Quantico emails that Ashden Fein sent on the evening of 26 August (after the Defense's attachments had already been sent) at 19:50 which reveal that the senior Brig officer who ordered PFC
Manning to be held in MAX and in POI was receiving his marching orders from a three-star general
88.80.17.76 resolves to PRO (PeRiQuito AB) an ISP based in Sweden
94 authorized programs for Distributed Common Grounds System - Army (DCGS-A) computer
a copy of Collateral Murder as it was released on the WikiLeaks.og website and also what appeared to be the source file in the unallocated spaces ofthe Alienware .22 computer. The first
instance of this was March and was found through restore points using EnCase
a removable 500 GB hard drive from Adnan Lamo's Linux machine mobile laptop
A self-portrait Manning took with a camera held in one hand standing in front of a mirror in the basement of his aunt's Debra Van Alstyne's house on 26 January 2010 in the unallocated space of
an SD card allegedly obtained at the second search of Debra Van Alstyne Bradley Manning's aunt home after having allegedly been shipped from Iraq in October 2010
a) Militarv Organizations/Entities: Army Criminal Investigation Command (CID) Defense Intelligence Agency (DIA) Defense Information Systems Agency (DISA) CENTCOM SOUTHCOM
Acceptable Use Police (AUP)
Acceptable Use Policy (AUP) for the Alienware 22 and Dell .40 machines

According to the 2 December 2011 Defense Request for Article 32 Witnesses and the Article 32 Pretrial Hearing testimony of Special Agent Calder Robertson CCIU SA Robertson extracted the
hard drives from the two SIPR and one NIPR computers collected from the T-SCIF the personal laptop of Staff Sergeant Peter Bigelow Supply Room and the personal extemal hard drive of PFC
Manning. According to the 15 March 2011 Article 39(a) Session despite Army Criminal Investigative Command's (CID) own preservation request for other hard drives from the T-SCIF in
September 2010 and the defense preservation request for the same in September 2011 the Govemment notified the Court and defense that of the 181 drives identified by the Government as part
ofthe Second Brigade CombatTeam 10th Mountain Division only computers with a user profile for Bradley Manning were preserved. The other computers the Govemment said the unit was free
to discard and DX all the procedures post deployment in September 2010. The Govemment was able to identify 14 other computers post deployment from the T-SCIF by serial numbers but the
Govemment said that of those 14 drives two drives were completely inoperable seven drives were wiped and and one drive was partially wiped.
According to the evolving US Government unauthorized access theory. USG alleges Pfc. Manning placed Wget on "two separate systems" 1030(a)(1)
According to the Office of the Director of National Intelligence (ODNI) 4.2 Million federal employees contractors and consultants have security clearances for SECRET information
Adium contact list in the allocated space of Bradley Manning's MacBook Pro

Adrian Lamo
Adrian Lamo contacted Special Agent Antonio Patrick Edwards Anny Computer Crimes Investigation Command (CCIU)
Adrian Lamo contacted us and related that he became aware on the Intemet of someone that he did not know who was part of the original decryption effort on the Garani video who worked for
Department of Energy (DOE) who he later said was Jason Katz
Adverse administrative or UCMJ actions
Afghanistan occurring on or about 4 May 2009...". The Defense requests that the Govemment identify the exact number and specific records it believes supports this specification for the
Defense's review." Prosecution Answer: 13 records.
After oral argument on 21 March 2012 the Court asked the Government to respond inter alia to the following question Is there any favorable material [in the damage assessments the Govemment
has reviewed?]. The Govemment's response with respect to the Defense Intelligence Agency (DIA) and Information Review Task Force (IRTF) reviews was that there was favorable material...The
concession that the damage assessment is favorable is wholly at odds with the Government's statement two weeks eariier in its Response to Defense Motion to Compel Discovery (No. 1)
Air Force Intelligence

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34923
AIR Special Agent Toni Graham Army Criminal Investigation Command (CID) had produced (ref number 00000184-190)
Al-Qaida
Al-Qaida in the Arabian Peninsula (AQAP)
alleged Adium chat logs in XML format on Bradley Manning's MacBook Pro between "dawgnetworkfgjabber.ccc.de" and "pressassociation@jabber.ccc.de" who Mark Johnson ManTech
International Contractor reports to Special Agent David Shaver Army Computer Crimes Investigative Unit (CCIU) says is Julian Assange aka Nathanial Frank but later admitted had no evidence
of a connction between Bradley Manning and a know WikiLeaks associate
alleged Adium chat logs on Manning's Apple MacBook Pro in XML format between "bradassS7" and Adrian Lamo
alleged AIM chat logs on Adrian Lamo's HP Windows mini laptop or Net book that had a hard drive in it that belonged to Adrian Lamo
alleged chat log as published by Wired on 13 July 2010
alleged chat log excerpts as published by Wired on 10 June 2010

alleged chat logs between Adrian Lamo and bradass87
alleged chat logs between Adrian Lamo and Danny Clark provided to Special Agent Antonio Patrick Edwards CCIU by Adrian Lamo
alleged May 11 2010 to May 19 2010 email chain between Bradley Manning and Eric Schmiedl: "I was the source of the 12 Jul 07 video of the Apache Weapons team which killed the two
journalists and injured two kids"
Almanza denied one agent the defense requested who was on the prosecution's original witness list dated July 7 2010. The defense requested the "attendance of XXXXXXXXXX in order to
provide the Investigating Officer with testimony concerning the joint investigations being conducted by both the Department of State and the Federal Bureau of Investigation
Almanza is Facebook friends with John N. Maher Deputy General Counsel for Contracting at the Defense Intelligence Agency
also reveal that the senior Brig officer former Security Battalion Commander Col. Robert G. Oltman who ordered PFC Manning to be held in MAX custody and Prevention of Injury at Quantico
indefinitely was receiving his marching orders from Joint Chiefs Chairman General Martin Dempsey's deputy Lt, General George J, Flynn a three star General Director J-7 Joint Staff
Although Wget was not apparently officially authorized for the individual user it was authorized for use on the Army Server components of the system As such Wget is a program that is authorized
to be used on certain military computers
and 2/10 Mountain. Identified 181 hard-drives. And out of those serial numbers 13 hard drives that were in the SCIF when the unit was deployed. CID had one other drive. We had not given to
Defense because it is classified. Would have to be reviewed by OCA. Then authority granted to tum over based on if you mle it is relevant and necessary. Based on your ruling we will get the
approval for MRE 505"
and Reconnaissance (AF ISR)
Any damage assessment by one of the 63 agencies to the Office of the National Counterintelligence Executive (ONCIX) in the Office of the Director of National Intelligence (ODNI)
Appellate Exhibit CXXXIX at 9 The Government has indicated albeit cryptically its Wget theory for the information covered by Specification 13 of Charge II
Amiy 15-6 Investigation
Army Computer Crime Investigative Unit (CCIU) obtained chats from Mr Adrian Lamo and collected computer belonging to Mr. Adrian Lamo
A r m y C o m p u t e r C r i m e s Investigative Unit ( C C I U )
Army Counterintelligence Center (ACIC)
Army Counterintelligence Center (ACIC) logs

Army Criminal Investigation Command (CID)
Army Criminal Investigation Command (CID) and the Federal Bureau of Investigation (FBI) obtained a federal warrant to search and did a search of Jason Katz's govemment wori< station
Army Criminal Investigation Command (CID) investigative files
Army Criminal Investigation Command (CID) The primary law enforcement organization within the Department of the Army focused on investigating the accused [Manning]
Anny Criminal Investigation Command (CID) two (2) investigations US Forces Iraq (USFl) and 1st Armored Division (1st AD)
Army Knowledge Online
Arniy Regulation 25-2 dated 24 October 2007
Anny Regulation 27-26 Rules of Professional Conduct for Lawyers
Army Regulation 380-5 dated 29 September 2000
Army Regulation 380-5 dated 29 September 2000 Paragraphs 1-21 and 6-1
Army Regulation 380 5 dated 29 September 2000 Paragraphs 1-21 and 6-1
Article 104 aiding the enemy
Article 121 Larceny and Wrongful Appropriation

Article 13
Article 13 Judge njles on recent rewew of 600 Quantico emails all but 12 material to preparation of defense
Article 13 of the Unifom Code of Military Justice states: "No person while being held for trial may be subjected to punishment or penalty other than arresX or confinement upon the charges
pending against him nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence but he may be sutijected to minor
punishment during that period for infractions of discipline"
Article 134 G e n e r a l article
Article 15 [Non-judicial Punishment]
Article 3 Judge's Protective Order
Article 31
Article 37 President Obama declares Pfc. Manning guilty before trial
Article 37 Unlawful Command Infiuence
Article 92 Failure to obey order or regulation
ARTIFACT - naming of a CD that Special Agent David Shaver Computer Crimes Investigation Command (CCIU) burned. Computer BD-RE Drive (D:) 100527_0357 Organize - Bum to disk. It is
unclear on which computer Special Agent David Shaver Computer Crimes Investigation Command (CCIU) made this disk image to use in his testimony
As a result of the Govemment's inconsistent positions on this issue this Court ordered the Government to produce a witness from the Department of State {State Department) (DoS) to appear at
the oral motions argument to confirm what information is or is not available within that agency
Assistant Secretary of the Navy Juan M. Garcia

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34924

at 15 March 2012 Article 39(a) session Fein; The Encase forensic images of hard drives in TSCIF. Government did identify some drives that have not been tumed over because they were used in
a classified TSCIF So they are considered classified
at 15 March 2012 Article 39(a) session Govemment said it would not be invoking MRE 505 for classified discovery. Consider at THAT time Government was suggesting an August 2012 trial
calendar and had NOT scheduled any MRE 505 into original proposed trial calendar (it has NOW has invoked MRE 505)
at 15 March 2012 Article 39(a) session Judge Lind said "This case deal with classified information. There are over three million pages of documentation in this case"
At the 18 October 2012 Article 39(a) Session Judge Lind ruled that the Court would take Judicial Notice of the President's 27 July 2010 statement from the Rose Garden and published on the
White House Web site on the lack of damage from the release of the Afghan War Logs for use during the sentencing portion of the trial - since actual damage is precluded from the trial on the
merits without the Court's permission - because the President's statement is made by a "party opponent" to the the accused in United Stated v Pfc. Bradley Manning is a statement offact the
statement was likely checked by the Govemment before it was given was given to the press with the intention of wide dissemination to the public and the President's statement had the "hallmariof a testimonial statement"
At the 18 October 2012 Article 39(a) Session the Government revealed that in the Spring and Summer of 2011 military prosecutors were coordinating with the Department of Justice and the FBI
for the release of information related to the US investigation of WikiLeaks Assange and other civilians for the military prosecution of Pfc. Manning. In a 22 May 2011 memo to the Special
Convening Authority Col. Cari R. Coffman Jr Commander of Joint Base Myer seeking an executable delay the military prosecutors said they were dealing with "sealed search wariants
subpoenas and Grand Jury material in the federal courts" (plural). In a 21 June 2011 memo to Col. Coffman - a period documented in the public record for known subpoenas search warrants and
testimony by the Grand Jury in the Eastern District of Virginia investigating WikiLeaks for "conspiracy to communicate or transmit national defense information in violation of 18 USC 793(g) and
conspiracy to violate the laws of the United States in violation of 18 USC 371 to wit knowingly accessing a computer without authorization or exceeding authorized access and having obtained
information protected from disclosure for reasons of national defense or foreign relations in violation of 18 USC 1030(a) and knowingly stealing or converting any record of thing of value of the
United States orany department or agency thereof in violation of 18 USC 641" - the military prosecutor requested an executable delay because among other matters "another document was
discovered" - military prosecutors noted that they were dealing with US District Court Judges. When the Judge asked the Government at the 18 October 2012 Article 39(a) Session when the
investigation was completed the Govemment answered "The investigation is not complete. The investigation is still ongoing." On 30 June 2012 Department of Justice spokesperson Dean Boyd
confirmed in like manner to the military prosecutor to Judge Lind "There continues to be an investigation into the WikiLeaks matter." In their 25 July 21 June 2011 memo to Col. Coffman
requesting more delay the military prosecutor wrote that another "document" that was "discovered" By June 25 July 2011 another document became two "certain sensitive documents" that were
"identified separately." The military prosecutor also said that it was relying on "US Attomeys" (plural) to "keep things moving in the US District Courts" (plural). In a 25 August 2011 memo to Col.
Coffman requesting more delay the military prosecutor said they were waiting for the FBI and the Diplomatic Security Services (DSS) to disclose "portions" of their investigative files "relevant" to
Manning's defense. In a 26 September 2011 memo to Cot. Coffman requesting more delay the military prosecution said that it had "obtained all authorizations and signed protective orders from
the federal Courts" and that the Govemment had obtained the "portions" of the FBI and Diplomatic Security Services file "relevant" to Pfc. Manning to give to the defense.
Attomey General Eric Holder
aymond G. McGrath director of the Office of Counterintelligence and Consular Support in the Bureau of Intelligence and Research at the Department of State (State Department) (DoS)
b) Joint Investigations: Federal Bureau of Investigation (FBI) Diplomatic Security Services (DSS) at the Department of State (State Department) (DoS)
b.zip placed on linux work computer of Jason Katz on 15 December 2009 and BE22PAX.wmv video file evidence of a cracking program being downloaded and installed on linux work computer of
Jason Katz
backup.xls
bash history evidencing cracking program was trying to decrypt b.zip on the linux work computer of Jason Katz
Bates # 00124331 (forensic report indicating that the keyword "Iceland" was searched for a total of fourteen times from both of PFC Manning's primary and secondary SIPRNET computers)
Ben Rhodes the Deputy National Security Advisor for Strategic Communications
Bill of Particulars
Bill of Particulars "How did PFC Manning 'knowingly exceed authorized access on a Secret Intemet Protocol Router Networit computer in Specification 13 [and 14] of Charge II?'" Govemment
disputed answering this in the Bill of Particulars. In the discussion with the Court the Government said in response "Manning had name and password. On the certain occasion that he obtain
these documents he was exceeding authorized access, [which would be a usage based]"
Bill of Particulars "How did PFC Manning knowingly give intelligence to the enemy?" Prosecution Answer: Indirectly through the WikiLeaks Web site.
Bill of Particulars "If the govemment is alleging that PFC Manning stole purioined and converted the charged items does each theory of culpability apply equally to every charged item?"
Bill of Particulars "In Specification 1 [Charge III] what is the alleged conduct that the Govemment believes was an attempt to bypass network or information system security mechanisms?"
Bill of Particulars "In Specification 10 [Charge II ]the Government alleges "more than five classified records relating to a military operation in Farah Province
Bill of Particulars "In Specification 13 the Govemment alleges "more than seventy-five classified United States Department of State cables...". The Defense requests that the Govemment identify
the exact number and specific records it believes supports this specification for the Defense's review." Prosecution Answer: 16 records
Bill of Particulars "In Specification 2 and 3 [Charge III] how is the Government alleging the software was added to the computers?" Govemment disputed answering this question. The Judge did
njled that she would not add it to the Bill of Particulars because Defense had access to the expert and forensics. See Court discussion. Govemment said in response that they don't "think" they
know how the software was added "But we do know that it was physically present on the computer" Govemment also said "[Bates No ] 00211037 is the forensic evidence that alleged that the
Govemment alleges shows Pfc. Manning added unauthorized software Wget to his primary computer Alienware 22.225.41.22 SIPRNet (.22) computer
Bill of Particulars "In Specification 2 and 3 [of Charge III] which computer is the Government alleging the software was added to?" Prosecution: 22.225.41.22...on SIPRNet"
Bill of Particulars "In Specification 3 [Charge II] the Government alleges 'more than one classified memorandum produced by a United States Govemment intelligence agency.... The Defense
requests that the Govemment identify the exact number and specific records it believes supports this specification for the Defense's review."
Bill of Particulars "In Specification 4 [Charge III] how does the Govemment allege PFC Manning used an information system in a manner other than its intended purpose?" Prosecution Answer:
"Downloaded Global Address List using SIPRNet."
Bill of Particulars "In Specification 5 [Charge ll] the Govemment alleges 'more than twenty classified records from the Combined Information Data Network Exchange Iraq database...'. The
Defense requests that the Govemment identify the exact number and specific records it believes supports this specification for the Defense's review." Prosecution Answer: 52 records.
Bill of Particulars "In Specification 7 [Charge II ] the Government alleges "more than twenty classified records from the Combined Infonnation Data Network Exchange Afghanistan database...".
The Defense requests that the Government identify the exact number and specific records it believes supports this specification for the Defense's review." Prosecution Answer 37 records.
Bill of Particulars "In Specification 9 [Charge II] the Govemment alleges "more than three classified records from a United States Southem Command database...". The Defense requests that the
Government identify the exact number and specific records it believes supports this specification for the Defense's review." Prosecution Answer 5 records.
Bill of Particulars "In what manner did PFC Manning wrongfully and wantonly cause intelligence to be published on the intemet?"
Bill of Particulars "What 'intelligence' is the Govemment alleging PFC Manning gave to the enemy?"
Bill of Particulars "What was the "indirect" means allegedly used in order to aid the enemy?" Prosecution Answer WikiLeaks Web site.
Bill of Particulars "What was the "indirect" means allegedly used in order to aid the enemy?" The Government also stated that its theory of indirect means was that PFC Manning gave the charged
intelligence to the WikiLeaks website
Bill of Particulars "Who is the alleged enemy?" Prosecution Answer The Govemment has further clarified that the "enemy" to whom PFC Manning allegedly indirectly gave intelligence is Al-Qaida
Al-Qaida in the Arabian Peninsula and an entity specified in Bates Number 00410660 through 00410664
Bill of Particulars [Missed Defense Question] Prosecution Answer "Accused attempted FTP USER Account Password"
Bill of Particulars: "What specific theory of culpability does the Government intend to rely upon? In other words does the Government allege that PFC Manning 'stole' 'purioined' or 'converted'?"
Govemment said they would get to that in instructions and that the Govemment considered "steal and purioin" as the same thing.
Birgitta Jonsdottir
Birgitta Jonsdottir Twitter

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Bradley Manning does not have access to classified information in his own case under the Court Protective Order
Bradley Manning Email Account
Bradley Manning email accounts: Google Gmail^.mil^ email for Brianna Manning
Bradley Manning Facebook Account
Bradley Manning or Brianna Manning Email: .mil-Google
Bradley ManningTwitter Account
Bradley Manning was on the ^Shia threat'team according to Captain Steven Lim 2nd Brigade Military Intelligence (Ml) Company Commander Brigade S2
Bradley Manning's Amazon Account
Bradley Manning's Apple MacBook Pro
Bradley Manning's Dad
Bradley manning's Google Account

8i^a^y
brianna M a n n i n g o r ^ e n d e r l d e n t i t y [disorder
brigade Commander
Brigade S2 is the Official Classification Authority for classification review of the unclassified July122007 Baghdad airstrike videos also known as "Collateral Murder
Bureau of Intelligence and Research
Bureau of Intelligence and Research at the Department of State (State Department) (DoS)
butlam guessing
By Febn^ary 162012the Govemment had provided approximately 78148 pages of unclassified discovery to the Defense and approximately 333194 pages of what the Govemment considers
classifieddiscovery.Thevastmajorityofthisdiscoveryhoweverisnotresponsivetothespecificitemsrepeatedlyrequested bythe Defense
c)Closely Aligned Organizations: l^partment of State (State Department) (DoS)Department of Justice (DoJ) Govemment Agency (Central Intelligence Agency CIA)
National Intelligence (ODNI) Office ofthe National Counterintelligence Executive (ONCIX)

^

Cached version of the WGET version1.11.4download Web page on the NlPRNet computer that includedaprofile for Bradley Manning
Camp Arifjan Kuwait
Camp Liberty Iraq

Oai^tainAn^^lO^^r^aardmilitar^^ro^^cotorinUS^FTcl^annin^
Captain Barclay Keay S2X
Captain Barclay Keay testified that he deployed to Iraq with the 2nd Brigade CombatTeam (2nd BCT) 10th Mountain Division (10MTN) in November of 2009 which had already depl^^
in October 2009 to Iraq. Keay testified testified that his first deployment was in S2 or lntelligence S2 refers to'Company'level intelligence Keay testi
intelligence position but that he was theT-SCIF night-shiff OIC [Of^cer in Charge] his first three weeks Keay testified that his job was S2X.According to G
staff officerfor HUMINT [Human Intelligence] and Cl [Counterintelligence] activities.The S2x provides focus and technical support for all CI[Counterintell^^^
Intelligence] activities. He ensures the "collection analysis and dissemination of HUMINT [Human Intelligence] and CI-related[Counteri
thecommander'scritical information requirements."Keay testified that during the night-shift he supervised three soldiers: Sergeant (former Specialist)Danie^
Bradley Manning and Cooley Keay testified that Padgett Manning and Cooley took over the task left to them by the day-shiff. Keay testified that he believed tha
Officer in Charge] was not with him on the night-shiff because "there wasn't enough going around" and that the primary focus was on the day-shiff when most of the intelligence "was h^^
Keay testified that after three weeks as the OIC [Officer in Charge] of the night-shift he was moved to the day-shiff
Captain Brian Moore Defense Forensic Psychiatrist
CaptainCaseyMartin(married name Pulton) Platoon leader and brigade Assistant 5 2 Cffioer
Captain Casey Martin (mamed name Fulton)Platoon leader and Brigade Assistant S2 Officer considered mIRC and Google Earth to be baseline authorized applications
Captain Casey Martin (mamed name Fulton)Platoon leader and Brigade Assistant S2 Officer said main focus was election security in March 2010before that it was to disrupt enemy 0^^^
Captain Casey Martin (married name Fulton)Platoon leader and Brigade Assistant S2 Officer says it was ok if people played pirated versions of movies they purchased from fr^
theirworkstations in theT-SCIF
Captain Casey Martin (married name Fulton)l^atoon leader and Brigade Assistant S2 Officer says main focus was election security in March 2010before that it was to
Captain Casey Marfin (married name Fulton)Platoon leader and Brigade Assistant S2 Officer says she hadaverbal conversation with Bradley Manning aboutthe Jul 2007 B
airstrike (known later as Collateral Murder) and then Bradley Manning sent her and email withaside by side video comparison
Captain Casey Marfin (married name Fulton)Platoon leader and Brigade Assistant S2 Officer says she saw Bradley Manning curied inaball on the fioorwith Master Sergeant Paul Da^^
(now Sergeant 1st Class due to administrative action)
Captain Casey Martin (married name Fulton)Platoon leader and Brigade Assistant S2 Officer says the reason for the ability to burn CD's was to share information with Iraqis 1^
mission
Captain Casey Martin (married name Fulton)Platoon leader and Brigade Assistant S2 Officer says the the person responsible for DEROG's was IstLt. Elizabeth Fields or Master Sergeant Pa^^
David Adkins(nowSergeant1st Class due to administrative action)
Captain Casey Martin (married name Fulton)Platoon leader and Brigade Assistant S2 Officer was not in Bradley Manning's chain of command her relationship with Manning was mere
counseling
Captain HunterWhytemilitaryprosecutorinUSvPfc Manning

Captain Barnes l^orro^mi^ita^^rosecLitor in ^ ^ v l ^ c l ^ a n n i n g
Captain James Moriow:^our Honor TheGovernment would maintain that PFC Manning hadauser name andapasswordtoaSIPRNETcomputer while deployed.On certain occasions when he
accessed that computerfor certain you know to obtain these documents he was exceeding authorized access.lcan't-there is no means.Imean there is no-ldon't think it's-amystery how he
got onto the computer.lthink MrCoombs is focusing on the [inaudible] diplomacy aspect of it when the focus should be on when he access [sic] the computer to do certain things
CaptainJohnHaberlandaspokesmanforthe Military District of Washington (MDW)
Captain J o s h u a ^ m a n military defense USvPfc Manning
Captain Matthew W. Freeburg affer Pfc.Manning's alleged assault of Specialist Jihrieah Showman on May72010Captain Matthew W. Freeburg "removed Pfc. Mann^
sent him to work in the Supply Room."See Staff Sergeant Bigelow's testimonyfor more information.Captain MatthewWFreeburg then "gave PFC Manning an Article 15[Non-judicial
Punishment] reducing him from SPC [Specialist] to PFC [Pnvate First Class]."
Captain MatthewWFreeburg became Company Commander of Headquarters and Headquarters Company 2nd Brigade Combat ^ a m 10th Mountain Division in April or May of 2010towards
theendofthe2ndBrigadeCombatTeam10th Mountain Division's deployment andamonth of so before F^c Manning's arrest at FOB Hammer Iraq.According to Captain Steven Lim's testimony

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at the Article 32 Pretrial Hearing the situation was one of at least two publicly known command changes in the 2nd Brigade Combat ^ a m 10th Mountain Division during deployme
Captain Lim testified was atypical since command rarely changes during deployment
Captain MatthewWFreeburg Company Commander of Headquarters and Headquarters Company 2nd Brigade 10 Mountain Division
Captain MatthewWFreeburg was the "property book holder for all the computers within HHC [Headquarters and Headquarters Company] 2BCT [Second Brigade Combat Team 10th Mountain
Division]"According to defense's account of Captain Freeburg's swom statement Captain Freeburg provided the "commander's authorization to seize and search the computers PFC Manning
was known to work on. [Captain Freeburg] also provided search authorization to search PFC Manning's room."
Captain Matthew W.Freeburg's swom statement based on recommendations by [UNIDENTIFIED MENTAL HEALTH PROFESSIONAL(S)] Captain Freeburg "believed it was shocki
something more serious had not been done to address PFC Manning's behavioral issues prior to him assaulting[SpecialistJihrieahShowman]and receiving Article 15[Nonjudicial
Punishment]."
Captain MatthewWFreeburg's swom statement Captain Freeburg "went to [AN UNIDENTIFIED MENTAL HEALTH PROFESSIONAL] at Behavioral Health to discuss PFC Manning's condit^
[AN UNIDENTIFIED INDIVIDUAL] told [Captain Freeburg] that PFC Manning's troubles were deeperthan the Army could fix and that [Pfc Manning] should be separated.^
Freeburg "sent PFC Manning toan [UNIDENTIFIED MENTAL HEALTH PROFESSIONALjfor an evaluation "
Captain Ogletree at Fort Huachuca

Captain^aul ^Duct^ard military d^f^ns^U^vP^c. banning
Captaif^5t^v^r^Lim2f^d8ri^ad^^ilitarylf^t^lli^^nc^(l^^)Compar^yCo
Captain Steven Lim 2nd Brigade Military Intelligence (Ml) Company Commander Brigade S2 counseled [Lt.General Robert L.jCaslen that he only learned about the email t^^^
sent to sent to Master Sergeant Paul David Adkins (now Sergeantlst Class due to administrative action)withaphoto of himself dressed asawoman affer Manning was apprehended
Captain Steven Lim 2nd Brigade Military Intelligence (Ml) Company Commander Brigade S2 gave the analyst link to Net Centric Diplomacy database through email with n
January 2010 Gotfrom headquarters. Head Quarters said forCaptain Steven Lim 2nd Brigade Military Intelligence (Ml) CompanyCommanderBrigadeS2 to pass along
Captain Steven Lim 2nd Brigade Military Intelligence (Ml) Company Commander Brigade S2 replaced Major Cliff Clausen who could not explain to the commander in the way the
needed in January 2010
Captain Steven Lim 2nd Brigade Military Intelligence (Ml) CompanyCommander Brigade S2 says US Forties Iraq partnered w i ^ Iraq 2nd Brigade was a u ^ ^
Iraqi defense forces because that was part of their mission to train the Iraqi^s how to use information and to share information with Iraqis

Capt^inTl^om^^Cl^erepl^o
CaptainThomasCherepkoreceivedaletterofadmonishmentfromLt.General Robert L. Caslen for "failure to ensure brigade was properiy certified" In March of 2011
CaptainThomas Cherepko says that the DAIG (Department of the Army Inspector General) did not perform an inspection until late in deployment
Captain Thomas Cherepko secure some network logs which ar^ official comraunications between corriputers tor 5peci
CaptainThomas Cherepko tasked one of his solders with doing the forensic imaging either Sergeant Joseph Benthal or Private Dodley Cherepko could not remember which
Captain William Hocter Quantico Brig Forensic Psychiatrist
Captain WillianiHocterOuantico^rig Forensic l^sychiatristrecoir^mended on 27 August2010thatlb^
(^01)
Catherine Brown
CD collected from in Bradley Manning^s Containerized Housing Unit (CHU) that had been marked SECRET
CD was found in Bradley Manning's Containerized Housing Unit (CHU) that had been mari^ed SECRET
CENTAUR logs also known as NetPlow logs for the periodlOctober 2009 to end of May 2010collected from the Office of the Director of National Intelligence (ODNI) fort
22225.41.22and22.22541.40associatedwiththeDell 40 and Alienware 22 machines respectively.These track date time and packet infonnation

C5I^TCCI^
CENTCOM Server
CENTCOM Server Farah Investigation Folder created in May 2010"video" folder BE22F^.zip created in May 2009 Three (3) videos that Shaversaid he found in the C ^ ^
investigation folder [Defense mentions this on cross-examination]
CENTCOM serverlogs
CENTCOM server logs.CENTCOM server logs do not record extemal IP address.They track date time and file(s)requested.CENTCOM logs evidence only one PowerPoint file
"Farah.brieffinalversion1"was downloaded by the Alienware 22 computer on 10April2010at 13:12:24 hours.Since CENTCOM logs do not track IP addresses this s^^
Alienware computer associated with the .22 IP address by Shaver needs further elucidation
Center for Constitutional Rights (CCR) extraordinary writ filed in this case with the Court of Appeals

0^ntr^llnt^lli^^no^A^^no^(OIA^(Oo^^rnni^ntA^^nc^^
Central Intelligence Agency (CIA)(Govemment Agency) forensic results or investigative files
Central Intelligence Agency (CIA) (Government Agency) Red Cell Special Memorandum "Afghanistan: Sustaining West European Support for the NATO-led Mission--W
Might Not Be Enough"
Central Intelligence Agency (CIA)(Govemment Agency) The accused [Manning] is charged with compromising Govemment Agency's (Central Intelligence Agency CIA)
Govemment intends to use additional information from the Agency during its case-in-chief

Central Intelligence Agency(CIA)^il^ileal^sTa5^Porce(^TF) damageassessment
Central Intelligence Agency (CIA) Wikileaks ^ s k Force (WTF) damage assessment (Second Damage Assessment)
Central Intelligence Agency (CIA) Worid Intelligence Review (WIRe)Logs
Central Intelligence Agency(GovernmentAgency)Red Cell Memoranda
CHAINOFCOMMANDCoLDavidM.MillerCommanderoftheSecondBrigadeCombat^am(2BCT) 10th Mountain Division (10MTN) was the most senior officer Pfc. Manning's chain of
command within the 2nd Brigade CombatTeam 10th Mountain Division
Chairman of the Joint Chiefs of Staff formerly Admiral Mike McMullen
ChainmanoftheJointChiefsofStaffGen. Martin Dempsey
ChairmanoftheJointChiefsofStaffGen Martin Dempsey who like the President declared Pfc Manning guilty before trial
ChetUber
ChetUber sent an email to Special Agent Antonio Patrick Edwards Army Computer Crimes Investigation Command (CCIU) and said he was aware of Adrian Lamo was in contact with an A
intelligence analyst releasing information to an Australian national [Julian Assange] in charge of WikiLeaks
Chief of Staff to the President fonneriyRahmEmmanual

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Chuck Hagel Co-Chair President's Intelligence advisory Board

CI0^^(Con^hir^edlr^t^orn^atio^Oatal^etvvork^^char^^e)At^^h^
C^OI^^ (Combined information Oata l^et^ork^^cl^ange)lra^
Citation United StatesvThomas Drake precluding harm on the merits
Classification and Assignment Board ( " C ^ Board")
Classification and Assignment Board ("C^A Board'') which apparently met onaweekly basis to discuss PFC Manning^s confinement conditions failed to properiy docume
on the required Brig Form 4200 for over five months
Classification detenninations alone do not satisfy the mens rea requirement of 18 USC 793(e)
CI^SSIFICATION REVIEW of the ten completed classification reviews provided six were four pages or less in length Of the remaining four classification reviews thre^
in length and only one was over 30 pages in length
Classification spillage that the Govemment alleges occurred in March 2012with the defense's original motions The Govemment said that the Defense had committedaspil^^^
namely that one could infer classified information Defense said at 23 Feb 2012Arraignment that their experts determined there was "no spillage."Based upon...the Protect!^
defense [filed?] the defense said that the Government unilaterally determines there is "spillage" Defense proposed at the 23 Feb 2012An^aignment that the Court S e c u r i t y ^
ultimate authority in determining of their isaclassification spillage and that the Court Security Officer consult the OCAs himself Later on defense remedied
represented to him that the OCA concluded the latest incident constituted spillage Coombs asked CPT Fein to provide copies of any emails to the Defense and the Court that he sent to the OCA
and received from the OCA regarding this issue. Fein did not indicate that he would provide the con^espondence or any portion thereof
classified Microsoff PowerPoint Presentation on the original5July2010charge sheet is alleged to have been obtained onSlPRNet which only contains infonnation c^
Clause1ofArticle134 offenses involve dison^ers and rieglects to the prejudice of good order and discipline in the an^
Clau^e2ofArticle134 offenses involve conduct ofanature to bring discredit i^pon the anned forc^
Clause3offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act see subsecti^^
conduct of this nature is specifically made punishable by another article of the code it must be charged asaviolation of that article
Closed Session with "relevant Govemment agencies"
Closed session with "relevant Govemment agencies" and Special Agent David Shaver
Coast Guard Intelligence
COL Ricky Malone Quantico Brig Forensic Psychiatrist
Col Cari R. Coffman Jr. Commander of Joint Base Myer and the Special Court Martial Convening Authority
CoL Cari R. Coffman Jr. Commander of Joint Base Myer and the Special Court Martial Convening Authority denied the defense^s request to conduct oral depositions of nine essential witnessed
including former Secretary of Defense Robert Gates and current Secretary of State Hillary Clinton Coffman determined that the "difficulty expense and^or effect
the significance of the expected testimony" despite the possibility of the death penalty for ManningThese same witnesses were requested by the defense for Manning's Article 32 Pretrials
and were denied by LL Col.Paul Almanzaacivilian career prosecutor at the Department of Justice.Almanza deemed that the "significance [of their testimony] does not o u ^ ^
govemmental operations" and the witnesss were "not reasonably available given the importance of their respective position
Col Daniel 4I Choike Ouantico Base Conimander
Col.David M.fylillerCommander ofthe Second Brigade Combat Team (2BCT)10th Mountain Division(IOMTN)
Col.David M.Miller Commander of the Second Brigade Combat ^am(2BCT) 10th Mountain Division (10MTN) said inaswom statement for the Secretary of the Army^s 15-6 investl^^^
unathorized disclosure that commanders (in conjunction with their unit security manager) are allotted 30 days to submit an initial DA 5248-R following the discovery of credible
information onaSoldier Affer the initial DEROG is submitted and processed by SID/CCF [Security Investigations Division/Central Clearance Facility] the ^^^^
5248-R if there isapending invesfigafion or adverse action taken (e.g. summary court-marfial). Once the investigation/proceedings are completed and the So^^^^
offense the unit must submitafinal DEROG
CoL David M.Miller Commander of the Second Brigade Combat Team 10th Mountain Division also said Master Sergeant Paul David Adkins (now Sergeant First Class due to administrative
action)"the NCOIC [Non Commissioned Officer in Charge] in the S2 Section and Pfc.Manning's commanding officer in theT-SCIF was'marginal but not bad enough to either relieve or
Accordingtothedefense'saccountofColDavidM Miller's sworn statement in the Secretary of the Army's15-6 investigation into alleged unauthorized disclosure Col.David M
Master Sergeant Paul David Adkins (now Sergeant First Class due to administrative action)"failed to infonn the chain of command of Pfc.Manning emotional and mental conditio
resulted in the command not submittingaDEROG inatimely manner."
Col.David M.Miller swom statement then Commander of the 10th Mountain Division's Second Brigade Captain MatthewWFreeburg also relieved[A^ET UNIDENTIFIED CAP^^
company commanderfor Headquarters and Headquarters Company 2nd Brigade 10th Mountain Division at the latter end of the 2BCT10 MTN Divdeployment around April or May 2010-a
month or so before Pfc Manning was arrested at FOB Hammer Iraq.According to the swom statement of CoL David M.Miller the former company commander of HHC^2BCT10MTN Div. was
relieved because"property accountability and due to the fact he was not making good decisions."
Col. David M.MilleBs swom statement "the officer in charge of PFC Manning" in the S2 Section of the 2nd Brigade 10th Mountain Division Maj Cliff Clausen the Brigade S2 "was not up
standard of pertormance that [CoL David M.Miller] expected out of someone in that position "According to the defense's account of CoL David M.Miller^s swom statement Col.
"decideditwasbesttoremove"Maj CliffClau5en "from his position as the [Brigade] S2 and place" Captain Steven Lim into that job According to the sworn te
the Article 32 Pretrial Hearing in the third orfourth week of January 2010Captain Lim then the Assistant Brigade S2 was promoted to Brigade S2 replacing Maj.Cliff Clause
testified that Maj.Cliff Clausen "could not communicate information to the commander [CoL David M.Miller] in the way the commander needed."Followingatransition
thecommandchangeintheS2Sectionofthe2ndBrigadeCombat^am10th Mountain Division was official.Captain Steven Lim testified that the change in command was atypical^
command rarely changes during deployment.
Col.Denise R. Lind is military judge for USvPfc. Manning
Col. Ricky Malone Quantico Brig Forensic Psychiatrist
Col Roberta Oltman fomierfomer Security battalion Comr^ander
Col.RobertG. Oltman formerformer Security Battalion Commander who said "I will not have anything happen to Manning on my watch...So nothing is going to change...He won^t be able
himself and he won't be able to get away and our way of making sure of that is that he will remain on Maximum Custody and POI indefinitely" and "We will do whatever we want
recommendation and thenlhave to makeadecision based upon everything else" and "Well that is what we are going to do"
CoL Stephen R.Henley asked Lt. Col.Paul Almanza if he was available to be Investigating Ofi^cer at USvPfc.Manning Article 32
Colonel Cari R. Coffman Jr. Commander of Joint Base Myer and the Special Court Martial Convening Authority
CommandJudgeAdvocateatQuanticowhowaspresentintheJanuary 132011 secrethigh level meeting about PFC Manning's confinement status
Common Law ofWar
Company Commander Drewer(sp.)
Company Commander Drewer(sp.)who Sergeant (former Specialist) Daniel Padgett testified that he did not talk to conceming the alleged December 2009 incident with l^c.Manni
Computer Fraud and Abuse Act (CFAA)
Computer in Bradley Manning's aunt Debra Van Alstyne's house powered on while he was in Iraq unnamed two (2) Army Computer Crimes Investigation Command (CCIU) agents who we^^
the Department of State (State Department)(DoS)to collect cables
Cooleyasoldierwhowori^ed on the night-shiff with Sergeant (former Specialist) Daniel Padgeff and Pfc.Manning under Captain Barclay Keay the first three weeks of Captain Barc^^^

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deployment at FOB Hammer
Coombs: Numbertwo every one ofthe Govemment's witnesses was granted. In their request they listed just the names and no basis yet you granted all the witnesses they requ^^^
had 19pages of relevance for each of the 38 names it requested 10 were govemment witnesses and they were granted Of the 38 only two witnesses for the defense were granted.Then this
moming two more were approved to the detriment of the defense to prepare inacase that involves death penalty [That means that 14defense witnesses were granted]
Coombs: Under R.C.M.902(a)the defense asks that you recuse yourself RC.M 902(a)...just the mere existence ofbias'as follows: Number one...your position asaprosecutorfortheDOJa
'career prosecutor'since 2002 coupled with an ongoing criminal grand jury..they would getaplea to go affer Julian Assange.DOJ has not ruled out fact they would not rule out ^^^^
you deny...but listening to the facts you are not impartial
Court Reporter
Court Reporter Cory Brother (sp.)
Court Security Officer
Courtis denial of the Defense Motion to Dismiss Specifcations13and14of Charge II based on In this case
CW2 Denise Bames (Former Quantico Base Commander) and one unknown individual whose name was redacted refused to change the decision to require PFC Manning to surrender his
clothing and wearasmock at night affer the13March 2011 incident
CW2 Denise Barnes decided to require PFC Manning to wearasuicide prevention article of clothing calleda"smock" at night
CW2 Denise Barnes Former Quantico Brig Commander
CW2 Hondo Hack Brigade Fire Section

C^4Air5man(5p)^rigade 52 Section
^am^sAv^rl^ai^^D^m^rC^uanticD^rig Commander
CW4 James Averhart former Quantico Brig Commander stopped me and said''I am the commander''and that''no one could tell him what to do" He also said that he was for all practic^^
"God"
CW5Abel Galaviz
CW5 Abel Galaviz's investigation of the conditions of PFC's Manning's confinement he found that the failure to immediately take PFC Manning off of Suicide Risk status upon the psychia
recommendation was in violation of Navy rules"
CVBERCOI^
DA5248 R
Daniel Meltzer President's Intelligence/advisory Board
DannyClark
Oarrell Edward IssaUS Representative for Califomia's 49th congressional disfrict Chair ofthe House Cor^iriittee on Overs^^
David Boren Co-Chair President's Intelligence Advisory Board
David Coombs lead civilian defense counsel to Major Ashden Fein lead military prosecutor The Grand Jury investigation started in December of 2010At that time the De^
to the investigation being conducted by the DOJ

Oavid Coombs iead civilian defense L^^vl^cl^anning
David Coombs lead civilian defense USvPfc. Manning "The Government has overcharged to strong-armaplea from my client"
David Coombs lead civilian defense USvPfc.Manning "We have hadabreakdown from Major Clausen S2 all the way down to the most junior officer"
DCGS-A (Distributed Common Ground Systems)
DD Form 457
Dean Boyde Department of Justice spokesman (DoJ)
Oebra Van A l ^ n e Bradley Manning^s aunt
Defense discovery requests included FOIA for 2007 Apache Airstrike (Collateral Murder)
Defense discusses the Chain of Custody and Control for discovery as it relates ^0 an Interagency investigation
Oefense Information Systems Agency (DIS^)

0^^^n5^lnt^lli^^nc^A^^ncy(0IA^
Defense Intelligence Agency (DIA) An intelligence agency within the DepartmentofDefense (DOD) which operated the Information ReviewTask Force
directed organization that was responsible for conductingacomprehensive DOD (Department of Defense)review of classified documents posted to the Wikileaks website and any other
associated materials
Defense Intelligence Agency (DIA) Final Security Violation Investigation Report
Oefense Intelligence Agency (OIA) Infonmation Rev^e^^sl^Port;:e(IRTP) damage assessment
Defense motioned to close portions of the pretrial for an unnamed reason Coombs: "Defense has argued harm would come to client if certain details were made public"
Defense questions for ex parte motions
Defense requested that the Government provide among other things the classification determinations by the Original Classification Authorities (OCA) as well as the O C ^ ^
This information was required to be completed by DOD Directive 5210.50 DOD Directive 5200 1 DOD Instruction 5240 4
Defense Secretary Robert Gates wrotealetter to Senator Cari Levin Chair of the Anned Services Committee citing findings by the l^fense Intelligence Agency^
Force (IRTF): "the review to date has not revealed any sensitive intelligence sources and methods compromised by this disclosure."At the 18October2012Article39(a)SessionJ
rifled that the Court would take Judicial Notice of Defense Secretary Gates'letter to Senator Levin-for use in during sentencing since actual harm or damage is precluded from the
the Court's penmission-citing Rule 801(d)(2)(d):The statement is not heresay was given byaparty opponent of the accused in United StatedvPfc. Bradley Manning and the statement
the party manifested that it adopted or believed to be true."
Department of Agriculture
Department of Defense (DoD)
DepartmentofDefense(DoD)DamageAssessmentofCompromised Information
Department of Energy's Office of Intelligence and Counterintelligence
Department of Homeland Security (DHS)
DepartmentofHomeland Security (DHS)damage assessment
Department of Homeland Security Office of Intelligence and Analysis

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Department of Homeland Security Office of Intelligence and Analysis (DHS^I8^)
Department of Housing and Urban Development

Oepai^mento^ justice (Oo^)
Department of Justice (DoJ) The Government collaborated with the federal prosecutors within the DOJ (Department of Justice)during the accused's [Manning] investigation

Oepar^n^ento^5tate(^tate0epartn^ent)(0o5)
Department of State (State Department) (DoS)24/7 WikiLeaks Working Group
Department ofState (State Oepartment) (OoS) briefing of House and Senate on Oecember22010
DepartmentofState(StateDepartment)(DoS)briefingofHouse Permanent Select Committee on Intelligence (HPSC/1) on December7and92010
DepartmentofState (State Oepartment)(DoS) briefings to Congress

departmento^5tate(5tate department)(Oo5)Ca^les(cal^legate)
DepartmentofState(State Department) (DoS) Chiefs ofMission Review
DepartmentofState(StateDepartment)(DoS)Circle Log Files

0^partm^ntD^Stat^(Stat^0^pai^m^nt)(ODS)dama^^ass^ssm^nt
Department of State (State Department) (DoS)did not embark on an effort update its damage assessment affer tiie entire diplomatic database was released in unredacted fonn in September of
2011
Department of State (State Department) (DoS) Executive Secretariat Ambassador Stephen D. Mull
Department of State (State Department) (DoS) Firewall Logs
DepartmentofState(StateDepartment)(DoS)FirewallLogsforthe IP addresses 22.225.41.22 and 22.225.41.40 associated with the Dell.40 and Alienware 22 machines respe^^^
amount of connections
Department of State (State Department) (DoS) forensic results
Department of State (State Department) (DoS)investigative file
DepartmentofState (State Department) (DoS)Operations Center
Department of State (State Department) (DoS) The accused [Manning] is charged with compromising the DOS's documents and the Govemment intends to use additional information f
Department during its case-in-chief
DepartmentofState (State Department) (DoS)Web Server Logs
Department of State (State Department) (DoS) Web Server Logs forthe IP addresses 2222541.22 and 22.22541 40 associated with the Dell.40 and Alienware 22 machi
Shows amount of connections
Oepartment of State (State Oepartment) (l^oS) WikiLeaks Mitigation Team
Department of State (State Department) (DoS) WikiLeaks Mitigation^amThe list of meeting dates/times [of the WikiLeaks MitigationTeam and the Department of State (Stat
(DoS)is inconsistent with the testimony of Department of State (State Department) (DoS)witnesses who believed that these meetings ended sometime in the summer of 2011.In reality the
Mitigation Teamwasstillmeetingasof 19 December2011
Department of State (State Department) (DoS)WikiLeaks Persons at Risk Working Group
Department of the Amy Inspector General (DAIG)
Department of theTreasury Office of Intelligence and Analysis
Despiteabill of particulars request covering the Government's theories underlying the 18 USC Section 641 specifications the Govemment refused to articulate its theory of how P^^
stole or knowingly converted Govemment databases that remained in the possession of the United States.While at the time the Defense t^lieved the Govemment was just engaging in some
improper gamesmanship the Defense now believes in light of the Government's confusion over its own "exceeds authorized access" theory(ortheories)that the Govemment simply did not ye^
haveanarticulablelegaltheoryforthethefforknowingconversion specifications
Despite CapL Hocterforensic psychiatrist for the Ouantico brig and COL Malone's forensic psychiatrist for the Ouantico brig consistent recommendationslremained on POI watch and in MA^
custody
DIACAP (Department of Defense Information Assurance Certification and Accreditation Process)
Diplomatic Securify Service (DSS) The primary law enforcement organization within the Department of State (State Department) (DoS)focused on investigating matters related to the
Diplomatic Security (DSS) Agent who interviewed Bradley Manning's aunt Debra Van Alstyne
Diplomatic Security Service (DSS) The Govemment has tumed over limited files from joint investigation with DSS The discovery provided deals only with the item charged
Charge II.The Govemment has not tumed over any DSS files or investigation dealing with Specifications 12or13of Charge II

Oip^omatic Security S^rvic^s(OSS)attti^0^partm^nt of Stat^(Stat^O^partm^nt) (OoS)
DiscutilitylogforManning'sMacBookProthathadentriesbetweenFebruary272010andMarch92010
DOD Directive 5200 1
DOD Directive 5210 50
DOD Instruction 5240.4
DOJ (Department of Justice) The Govemment collaborated with the federal prosecutors within the DOJ during the accused's investigation
Drug Enforcement Administration Office of National Security Intelligence (ONSI)
DS Channel (for messages between the Assistant Secretary and/or Deputy Assistant Secretaries of Diplomatic Security other authorized DS personnel and the responsible D S c ^
criminal and special investigations involving; US citizens or foreign nationals who are not US Govemment employees special protective equipment and other sensitive subjects w
deems should be restricted to DS personnel at posts or within the Department See US Department of State (State Department) (DoS)Foreign Affairs Manual Volume5Handbook2
^lecommunications Handbook for more info)
DS-controlled(DSX CHANNEL--for messages between the Assistant Secretary and/or Deputy Assistant Secretaries of Diplomatic Security other authorized DS personnel and ti^er
DS officer conceming criminal and special investigations involving; US citizens US Govemment employees or DS employees counterintelligence investigations adverse personnels
actions; investigations concerning domestic abuse; confidential sources undercover operations and other sensitive subjects which the draffer deems should be highly restricted. Lim
dissemination of DSX CHANNEL messages to the regional security officer or post security officer limit domestic dissemination to specific offices within DS. The Director of the Offic
Investigations and Counterintelligence (DS/DSS/ICI) authorizes access to DSX Channel messageti^al^cat the headquarters leveL See US Department ofState
Affairs Manual Volume5Handbook2^lecommunications Handbook for more info)
Duty Brig Supervisor ("DBS")

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Dynadot
eitherway there isaperiod of unexplained delay 8^ that delay was caused by some arm of the United States Govt
Element no l o t an Article 92(1)offense foraviolation of ^^380-5There was in effectacertain lawful general order or regul^^
September2000
element no 2ot an Article ^2 (l)offense^raviolation of AR 380^5 (2) Theaccused hadadutyto obey this regulation and
Eleirientno3ot an Article ^2(1)offensefr^raviolation of/^R380-5(3)That on divers occasions between on or about [varying date ranges^
violated this lawful general regulation by knowinglywillfullyor negligently disclosing classified orsensitlve infor
^leriient of Clausetof Specificationlof Charge ll charges Under Article134(1)The accused at or near Contingency Operating Station Hani^
20l0wrongfully and wantonly caused to be published on the intemet intelligence belonging to the United States having Icnowledgeth^^
Element of Clause2of Specificationlof Charge II charges Under Article134 (2) Under the circumstances the conduct of the accused was to the prejudice of good order and discipline in the
armed forces and ofanature to bring discredit upon the armed forces
elements no 1of charges under18USC 793(e) violations charged in 5pecifications235791011and15ofChargell(1)The accused at ornearContingenc^
[varying date ranges] had unauthonzed possession of information
^lenientsno2of charges under18USC793(e)violations charged in Specifications2 35791011and15ofChargell(2)The infomiation was relati
Elements no 3of charges under18USC 793(e)violations charged in Specifications23579 10 11 and15of Charge II (3) The accused knew or had reason to believe that the inform
be used to the injury of the United States orto the advantage of any foreign nation
Elements no 4of charges under18USC793(e)violations charged in Specifications235791011and15ofChargell(4)rhe accused willful^^
d^liver^dortransmittedtheinfbm^ationtoaperson not entitled to receive it and
Elements no 5of charges under18USC793(e)violations charged in Specifications235791011^nd15of Charge ll(5)Underthecircuinstances the
discipline in the armed ^rces and ofanature to bring discredit upon the armed forces
Ellen Laipson President's Intelligence Advisory Board
Email correspondence between then-CPT Fein and the Brig officials demonstrates tiiat the Govemment was not at all concerned with seeing PFC Manning's confinement conditions re^^
but was instead solely concerned with combatingapotentialArticle13Motion
EmailthatBradley^anningsentto ^asterSergeant Paul Oavid Adkins(now Sergeantlst Class due to adininistrativeaction)withaphotoo

^ncas^^Dr^nsicima^^D^^ac^CD^put^i^^Tomt^^TSCI^ors^i^^d^yt^^Cov^mm^nt
Enemy:Entityspecifiedin Bates Number00410650 through 00410664
Environmental Protection Agency (EPA)
Eric Schmiedl
EricSteinthetranscnberoftheWikiLeaksMitigationTeamatthe Department of State (State Department) (DoS)
Every court interpreting Article104(2) must prove general criminal intent to give intelligence to or communicate with the enemy indeed no prosecution under this Article has ever been main^
without some allegation of mens rea
EXDIS (For messages needing exclusive disti^ibution to officers with essential need to know. Use this caption only for highly sensitive traffic between the Whit
Under Secretaries of State and chiefs of mission see5FAH-2H-442.6 When and How to Use EXDIS See US Department of State (State Department) (DoS) Foreign Affairs Manual Volume5
Handbook2Telecommunications Handbook for more info)
Executive Office of Management and Budget (OMB)
Farah zip[Defensementionsthisoncross-examination in relation to three videos but it is unclear]

^edera^ bureau o^^ovesti^atior^(^^l)
Federal Bureau of Investigation (FBI) Diplomatic Security Services (DSS)at the Department of State Department of State (State Department) (DoS)Department of Justice (DoJ) Govemment
Agency Office of the Director of National Intelligence (ODNI) Office ofthe National Counterintelligence Executive (ONCIX) and files in relation to
Federal Bureau oflnvestigation (FBI)forensic results
Federal Bureau of Investigation (FBI) impact statement
Federal bureau of Investigation ( F ^ l ) Investigative file
Federal Bureau of Investigation (FBI) participated inajoint investigation of the accused and even though the Government has ready access to this material
Federal Bureau of Investigation (FBI)The primary law enforcement organization within the DoJ (Department of Justice)focused on investigating matters related toth
Federal Communications Commission (FCC)
Federal Rule 16
FederalTrade Commission (FTC)
Files linked to the fraudulent station in the database [Unclearfrom Reitman or the transcriber's notes what this refers where it was found orwhat it refers to]
files.zip
First instance of WGet in March 2010that Special Agent David Shaver Computer Crimes Investigation Command (CCIU) asserts seemed to be to access the Gitmo detainee assessments
[Transcriber notes the date may have been7March2010but it is not clear which computer and where this was found] Special Agent David Shaver Computer Crimes Investigation Comma
(CCIU) said an unnamed forensic examinerwas able to recreate the script and download Gitmo detainee logs on his own computer.The forensic unit then downloaded the Gitmo lo^
by WikiLeaks and compared them to what they pulled via the WGet script.According to Special Agent David Shaver Computer Crimes Investigation Command(CCIU) they matched
FirstLieutenant Elizabeth Fields Special Security Representative (SSR)for the T-SClFS2Sectlon2nd Brigade CombatTeam (2 BCT) 10th Mountain Divisi
Five unnamed people who Special Agent Toni Graham Arrny CID interviewed faced to face(one of them was Captain Casey Martin (married name Fulton) Platoon leader and
S2 Officer conceming Collateral Murder) and other unnamed people she canvassed who knew Manning
Flight Into Hypennasculinity
FOIA Requests Regarding Video in Specification2ofCharqe II (Collateral Murder)(12JUL 07 C^ENGAGEMENT^QNE 30 GCAnyone.avi)
For any captioned or otherwise particulariy sensitive documents (as explained below to include NODIS [The use of the NODIS caption identifies messages of the highest sensi
President the Secretary of State and chief of mission, ^ u must not distribute NODIS messages to anyone other than the intended recipient without prior approval from the Executive Secr^^^
(S/ES-O)SeeUSDepartment0fState(StateDepartment)(DoS) Foreign Affairs ManualVolume5Handbook2TelecommunicationsHandbookformoreinfo] EXDIS [
exclusive distribution to officers with essential need to know Use tills caption only for highly sensitive fraffic between the White House the Secretary Deputy or Under Secretaries
chiefs of mission; see5FAH-2H-442.6 When and How to Use EXDIS See USDepartment of State (State Department) (DoS) Foreign Affairs Manual Volume5Handbook2Telecommunications
Handbook for more info] Rogers Channel [Use ROGER CHANNEL for communications between the Assistant Secretary for Intelligence and Research (INR) and the chief of mission See US
Department of State (State Department) (DoS) Foreign Affairs Manual Volume5Handbook2Telecommunications Handbook for more info]DS Channel [--for messages between the Assis
Secretary and/or Deputy Assistant Secretaries of Diplomatic Security other authorized DS personnel and the responsible DS officer conceming criminal and special investigation^
citizens orforeign nationals who are not US Govemment employees; special protective equipment; and other sensitive subjects which the draffer deems should be restricted to DS personnel
posts orwithin the DepartmenL See US Department of State (State Department) (DoS) Foreign Affairs Manual Volume5Handbook2Telecommunications Handbook for more info]or
DS-controlled [DSX CHANNEL--for messages between the Assistant Secretary and/or Deputy Assistant Secretaries of Diplomatic Security other authorized DS personnel and the responsible D^

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34931

officer concerning criminal and special investigations involving: U S, citizens u s Government employees or DS employees; counterintelligence investigati
investigations concerning domestic abuse; confidential sources; undercover operations; and other sensitive subjects which the draffer deems should be highly restricted. Li
of DSX CHANNEL messages to the regional security officer or post security officer; limit domestic dissemination to specific offices within DS. The Director of the Office of 1^^
Counterintelligence (DS/DSS/ICl) authorizes access to DSX Channel message traffic at the headquarters level See US Department of State (State Department) (DoS) Forei
Volume5Handbook2Telecommunications Handbook for more info]) forvvhich redactions are not sought the Department will make the documents available to the defense
security experts to inspect at the Department until the end of the Court-martial For all remaining documents for which redactions are not sought the prosecution will deli^^
the defense by 21 September 2012. The defense counsel and their experts are not authorized to share the information contained within these documents of their notes with the accused
For overayear the Govemment justified its need for excludable delay to the Convening Authority in part due to the requirement to obtain these Original Classification Authority (OCA)
classification determinations The Government provided these determinations to the Defense piecemeal.It was not until the late fall (approximately November 2011)that the Defense
possession all of the OCA classification determinations
Forensic evidence unequivocally established that PFC Manning did not use Wget to obtain the information in Specification 14of Charge 11
forensicimagingofthe WikiLeaks websitebyCCIU
FORSCOM
Fort Huachuca
Four Quantico Guards
FourT-SCIFcomputersthattheGovernmentrepresentedwouldbeproducedon18May2012Qn 16 April the Govemment stated itwas confidentthatthe4compute
provided by 18May2012The computer hard drives were not provided on18May2012On 29 May the Defense asked when it should expect to receive the hard drivesT^e Govemment in
that they would have approval by the end of the week As of2June2012the Government still has not produced these four hard drives
Full investigative files b y U S Anny Criminal Investigation Command (CID) Defense Intelligence Agency (DIA) Defense Information Systems Agency (DISA) CENTCOM
PFCManning
Furtheracongressional aid who spoke to Reuters and who was also "familiar with the late 2010 briefings" by the State Department said "We were told (the impact of WkiLeaks revelatio
embarrassing but not damaging"

Cames
CaraniAir^tril^e^deo
General Court Martial Convening Authority (GCMCA)
General James Jones the President's fonner National Security Advisor
George W. [last name sounds like''Street" Reitman notes the name as George W. Shriek (sp.)] WHO IS THIS? FBI? provided with alleged chat logs between Adrian Lamo and bradass87
tiiumbdrivesB^WHOM?
George W. [last name sounds like "Street"] WHO IS THIS? FBI? provided with alleged chat logs between Adrian Lamo and bradass87 on two thumb drives B^ WHOM?
GEOTRANS an application program which allowsauser to easily convert geographic coordinates amongawide variety of coordinate systems map projections and datums
Given the fact the OCA determinations are merely probative on the element of the 18 USC 793(e)offense the Defense should be entitled to examine the basis for tiie OCA determinations as to
why the information was classified and the OCA'S belief regarding whether the reviewed information really "could" cause damage to national security
Google
Google Earth
Google search records foraBradley Manning user profile onaNIPRNet computer that includedaprofile for Bradley Manning
Govemment also presented chats alleging Nathaniel Frank who the Government alleges is Julian Assange offered assistance to Manning in crackingalogon password to allow him to searc
anonymously onacomputer
Govemment argues thatthe authorization for installing mIRC and the like [the examples ofunauthorized programs installed on computer] camefrom the Chain of Command and
restrictions [need for admin privileges for example]
Govemment cannot assert that this case is overly complex or that it raises novel issues while simultaneously tumingablind eye to the fact thatasubstantial portion of that complexit
has been caused by the Government's own charging decision In other words the Government cannot be givenafree pass on the reasonable diligence inquiry simply by asserting the complexi^^
of the case especially when it has charged the case in suchacomplex manner that necessitated delay in the proceedings to allow the Government to mull over how it can make the proof fit i
loffy and imaginative charging decision
Govemment Ex Parte RCM 701(g)(2) Motion foraDepartment of Homeland Security (DHS) documenLT^e motion and its enclosures are being submitted via NIPR inaseparate emai^^
to this email isaredacted version for the defense
Govemment MRE 505(g)(2) Motion forCentral Intelligence Agency (CIA) (GovernmentAgency) Information. The motion and its enclosures are being submitted via SIPR and hand deli^^
Monday
Govemment MRE 505(g)(2) Motion for DOS Information The motion and its enclosures are being submitted via NIPR in this emaiLTwo of the enclosures are being submitted via N^
separate email
GovemmentNoticetotheCourtforGovemmentMRE505(g)(2) MotionforDepartmentofState(StateDepartment) (DoS)and Central Intelligence Agency (CIA)(Government Agency)
Informationwhichincludestheunclassifiedand redacted version of the Central Intelligence Agency(CIA) (Government Agency) motion
Government Notice to the Court for Office of the Director of National Intelligence (ODNI) Information
Govemment placed PFC Manning in administrative hold with escorts on 27 May 2010and placed PFC Manning in pretrial confinement on 29 May 2010
Govemmentrespondedtoallofthe Defense request ofaBill of Particular except three items
Govemment Supplemental Filing for MRE 505(g)(2) Filing for FBI Investigative File.The supplement is attached.The classified enclosures are being submitted ex parte vi^
delivery on Monday
Govemment wanted to delay the trial until 18 May 2012to decide whether to assertaprivilege with respect to any classified information
Govemment was advise that it must provideaBill of Particulars Government did with the exception of three
Govemment's interest in securingaconviction and making an example out of PFC Manning has clouded the prosecutors^ professional judgment Thisis apt to happen in high-profile cas
coincidence that many high-profile cases are plagued by serious discovery violations
Govemment's lack of diligence in this case independent of the discovery issues.Among them:The Government has repeatedly requested additional time to complete simple tasks and to respon
to straightforward motionsThe Government has repeatedly promised to "get back to" the Court on various issues in oral argument and rarely does The Govemment still has not provided "tim
and meaningful"access toAmbassadorKennedyaspromisedwhen itrequiredthe Defense tofileaTouhyrequestTheGovernmenthasfrequentlyshiffed litigation
positionsarebomeofconvenienceandnotofprinciple(considerforinstancetheGovernment'sthrice-shiffingargumenton whether ArmyRegulation380-5waspunitiveinnatureandit^
arguments on "exceeds authorized access'') The Government's email system has been plagued by errors that still have not been fixed. Given the volume of email traffic these issues shou^
been sorted out months agoThe Govemment's about-face on complying with the Protective Order with respect to Defense redacted motions The Government argued that it was simply too
difficult for it to continue reviewing the redactionsThe Government's failure to organize logistical issues inatimely manner(eg its requirement fora30 day OPLAN Bravo Or
32 etc)

Ci^and JuryTestimony01^Fi^^s
graymailing

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Grid Extractorabinary executable capable of extracting MGRS grids from multiple free text documents and importing them intoaMicrosoff Excel spreadsheet

CL^antanamoOetaineel^i^o^les(CT^C^iles)
Guantanamo Detainee Profiles (GTMO files)are marked SECRET
Gunnery Sergeant Blenis at Quantico
HR.553 The Reducing Over-Classification Act President Barack Obama70ctober 2010
Headquarters Battalion Commander "the first accusers'and convening authority
Headquarters Department of the Army (HQDA)
Headquarters Department of the Army (HQ0^)17April 2012 memo
House Comm^tteeonOversightandCovemment Refonn
House Pennanent Select Committee on Intelligence (HPSC/I)
How many links in the chain of "indirectly" could render the soldier subject to the death penalty?
Howard SchmidtaformerTiversa adviser is cybersecurity coordinator and special assistant to U.S.President Barack Obama
Human Health Services (HHS)
lasked the Brig Operations Officer MSG (Marines Security Guard) Papakie whatlneeded to do in order to be downgraded from Maximum Custody and POI Status MSG (Marines Security
Guard) Papakie Brig Operations Officer responded by telling me that there was nothinglcould do to downgrade my detainee status and that the Brig simply considered mearisk of sel^^^
Iwalked towards the front of my cell with my hands covering my genitalsThe guard told me to standaparade rest which required me to stand with my hands behind my back and my legs spaced
shoulderwidthapartlstood at "parade rest" for about three minutes until the DBS (Duty Brig Supervisor ("DBS") arrived
Iwas approached by G^SGT (Gunnery Sergeant) Blenis He asked me whatlhad done wrongltold him thatldid not know what he was talking about He said thatlwould be strips
night due to something thatlhad said to Brig Operations Officer MSG (Marines Security Guard) Papakie
Iceland
Images of the raw structure of files in the Farah investigation folder on the CENTCOM servers related found fromaspecific path to that folder found in the index.dat on the Alienware .22. Shaver
said the file structure matched found in tiie index dat matched tiie CENTCOM server
Immigration and Customs Enforcement (ICE)
In addition to going towardakey element of three separate offenses the Defense maintains that the absence of damage is relevant for the impeachment of Govemment witnesses who claim
the leaks could cause damageThe Govemment however believes that the use ofadamage assessment to impeach an Original Classification Authority (OCA) who preparedaclassification
review would be improper
In an email to Master Sergeant(now Sergeant 1st class due to an administrative action)Adkins Pfc Manning wrote: "This is my problem.I've had signs ofit foravery long time.
veryveryhardtogetridofiLlthoughtmilitarywouldgetridofit But it is not going away. It is haunting me more and more aslget older. Now the consequences are getting harder.lam
whattodowithiL Itisdestroyingmytieswithfamilyltispreventingmefromdevelopingasaperson.It is the cause of my pain and confusion It makes the most basic things in my life ver^
difficulLThe only solution is getting rid of me.The fear of getting caught has made me cover up. It is difficult to sleep and impossible to have conversations It makes my ent^
dream that won't end.Idon't know what to do.Idon't know what to do.ldon't know what will happen to me.But at this pointlfeellikelam not here anymore.Everyone is concemed a
and everyone is afraid of me.lam son^."-Pfc.BradleyManning
In mid-June 2012tiie Govemment notified tiie Defense that it had "discovered" an Federal Bureau of Investigation (FBI) impact statement
In Re Application ofthe USA For an Order Pursuant to 18USC^2703(d) for Twitter
In the allocated space on the Alienware .22 computer Wget was found to be added on4May 2010 but Special Agent David Shaver Computer Crimes Investigation Command (CCIU) testi^^
he found an earlier versions in Windows PreFetch folder
In the allocated spaces on the Alienware .22 computer under Bradley Manning's user profile
In the unallocated spaces of the Alienware .22 "thousands" of complete cables ranging in classification and "many" incomplete ones
In total from the commencement of PFC Manning's pretrial confinement until PFC Manning's arraignment on 23 February 2012there were 323 days in which no apparent Govemment activity has
occurred
incident at Fort Drum in May 2009 between Specialist Jihrleah Showman and Bradley Manning
Incident with Pfc. Manning curied in the fetal position on the fioor the night Pfc. Manning allegedly struck Specialist Jihrleah Showman

incident witl^ Sergeant (former Specialist) Oaniel Padgett Oecember 200^
Incident v^itl^ Specialist Jit^rteaf^ showman M a y 7 2 0 1 0
lncidentwiththeMasterSergeantPaulDavidAdkins(nowSergeant1stClass due to administrative actionjandaprojector in December 2009 or January 2010

Infomiation ^evie^Tas^l^orce(I^TI^)
Intelink
IntelinlcLogFlle^
Intelink Logs Forensic Report (Classified Attachment)
Intelink logsfrom October 2009to May 2010
Intelink search queries associated with the IP address 2222541 22 between9January2010and 21 April 2010
Intelink search queries associated with the IP address 22.22541.40 betweenlDecember 2009 and 08 March 2010 Special Agent David Shaver Computer Crimes Investigatio
(CCIU) asserts these contain search queries for WikiLeaks Julian Assange and Iceland [transcriber also noted the search temiilr^wikileaks]. Special Agent Davi^
Investigation Command (CCIU) asserts there were 100 searches conducted for the tenn WikiLeaks
Intelink search queries eight (8) searches for information related to''retention of interrogation video" T^ese were associated with the IP address 22.225.41.
January 2010
Intelligence Community (IC)
Interagency Committee Review
Iraq War Diary
Itwasdeterminedthatforsearchwarrantsandspecialwar^antsneededfromaFederaljudge Special Agent Mari^ Mander Amiy Computer Crime Investigative Unit (CCIU) m
Twitterconus leads and the technical nature ofthe matter more suited to Army ComputerCrime Investigative Unit (CCIU)
It was the government's decision to conduct this Article 32 investigation at Fort Meade
Jacob Appelbaum
Jacob Appelbaum Google

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Jacob Appelbaum Sonic
Jacob AppelbaumTwitter
Jacob Lew former Director of the Executive Office of Management and Budget (OMB)
Jacob Lew former Director of the Executive Office of Management and Budget (OMB) 28 November 2010"WikiLeaks Mishandling of Classified Information"
James Clapper Director ofthe QfficeofNational Intelligence (ODNI)
James Culky 4th Cavalry Division Brigade S2 is the Official Classification Authorityforclassification review ofthe unclassified Ju^^
Jason Allen Millimanafield software engineer confractor's civilian boss
Jason Allen Milliman ^asafieldsoftyyare engineer contractor a t F . O ^ I ^ a m m e r Iraq l^is jobs ^ a s to keep the OCO
Jason Allen Milliman was the only one in theT-SCIF with administrator privileges
Jason l^atz
Joint ReadinessTraining Center (JRTC)
Joint Regional Correctional Facility Fort Leavenworth Kansas
JTFGTMO
Juan Mendez Uf^ Special Rapporteur on fbrture
JudgeLindacknowledgesthattheorderproposingthattheCourtSecurityOfficeris[notsigned]
the individual Prather (sp)related to the Protective Order]

[I have in my notes that this individual is "EB'' lalso have in my notes thatthe

JudgeLindcitedthefollowingcaselawinherruling Rule 401 Scope of probative evidence in military commissions Rule 403. Exclusion of probative evidence 0
orwasteoftimeRule410 Inadmissibility of pleas plea discussions and related statements U S v ^ i t e 6 0 6 F . 3 d 144 (4 th Cir 2010)concerning "a conviction f
not require'physical force'as an element of the crime" Rules for Court-Marital 703(b)Right to witnesses USvDiaz concerning the'mens rea requirement'of the Espionage AcL'''W^^
the context of^793(e)arises not in the context of bad intent but in the conscious choice to communicate covered information"
Judge Lind:This case deals with classified info There are over three million pages of documentation in this case. Has the classified information been disclosed to
JuditiiMiscik President's Intelligence Advisory Board

Julian Assange
JWICS Joint Worldwide Intelligence Communications System)
Kay Gotoh took over for Marguerite Coffey former State Department director of the Olfice of Management Policy Right Sizing and Innovation who also acted as the supervisor of the W
MitigationTeam prior to that she was Coffey's deputy
Kevin Poulsen
Kim better
Lance who dealt mostly with HQ
Lee Hamilton President's Intelligence Advisory Board
Leon Panetta fonner director ofthe Centi^al Intelligence Agency (CIA) curient Secretary of Defense at the Department of Defense
LesterLyles President's Intelligence Advisory Board
Linux work computer seized from Jason Katz at Brookhaven National Labs at the Department of Energy
List of 2703d orders under seal for Docket No 10GJ379
LL CoL Brian Kems Executive Officer (XO) 2nd Brigade Combat TeamlOth Mountain Division
LL CoL Brian Kems Executive Officer (XO) 2nd Brigade Combat Team 10th Mountain Division was Major Cliff Clausen's direct supervisor
LL CoL Cameron Leiker Headquarters Battalion Commander
LL Col Dawn Hilton Commander Joint Regional Correctional Facility at Fort Leavenworth
LL CoL Eric Fleming Headquarters Command Battalion
LL CoL Mari^ Holzer was LL CoL Paul Almanza Article 32 Investigating Officer legal advisor

LLColPaulAlnian^aAriicle32lnvestigatingOfficer
LL CoL Paul Almanza Investigating Officer at the Article 32 Pretrial Hearing ruled on damage assessment and closely aligned organizations: Central In^^
not reasonably available as this wasajoint investigation this evidence is cumulative with evidence of the CID case file and its limited significance is n o t o u r
evidence"
LL CoL PaulAlmanzalnvestigatingOfficerattheArticle32 Pretrial Hearing ruled: Ouantico Video: The "evidenceisnotrelevanttothe
as may be necessary to make an informed recommendation as to disposition specifically the circumstances sumounding PFC Manning's placement in suicide risk are not relevant toa
determination as whetiier PFC Manning committed the charged offenses and if so what the disposition of those charges should be"
LL CoL Paul Almanza's unnamed supervisor at the DoJ with whom he spoke to about the case Coombs: Discussed this information with anyone [referring to pretrial hearing]? 10:.. super^^
LLGaff(sp)
LLGeneralGeorgeJ Flynn^3Star General who ordered that Manning be held in MAX and in POI at Quantico Director Director J-7Joint Staff
LL General RobertESchmidle Deputy Commander US CYBERCOM
LL General Robert L. Caslen
LL Hughs at Fort MeadeMD guarding the proceedings of USvPfc. Manning

l^a^orAs^den ^einiead military proseci^tor in L^^v^cl^anning
MajorAshdenFeinleadmilitaryprosecutorinUSvPfc Manning "Pfc Manning knew that the enemies of the United States were using the Internet and that they could access Wk^
MajorAshdenFeinleadmilitaryprosecutorinUSvPfc Manning "Pfc Manning used WikiLeaks"most wanted list'asaguiding light"
Major Ashden Fein lead military prosecutor in USvPfc. Manning: "By searching for WkiLeaks Manning found info on how transmitting classified information to WikiLeaks cou^^
terrorist entities like AlQaeda use WikiLeaks for their own information."
Major Ashden Fein lead military prosecutor in USvPfc.Manning; "Qn 22 May 2010
Major Ashden Fein's letter to the General Counsel of the Office of the National Counter Intelligence Executive (ONCIX)

^a^orCli^ClaLisen brigade ^2

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Major Cliff Clausen sworn statement Major Clausen does not recall talking to the former ^ET UNIDENTIFIED CAPTAINjand company commander of HHC/2BCT10 MTN Div
Manning's behavioral health issues.According to the defense's account of the swom statement of CoL David M.Miller that former[^ET UNIDENTIFIED CAPTAINjand company c o ^ ^
HHC/2BCT 10 MTN Div. was relieved by Captain fvtatthewW. Freeburg in April or May of 2010 because of"property accountability and due to the fact he was not making good decisions.^
Major Cliff Clausen was the Brigade S2 2nd Brigade Combat Team 10th Mountain Division until January 2010andprovidedasworn statement for theSecretary of the Army's15-6investi
into the alleged unauthorized disclosures. Major Cliff Clausen was Pfc. Bradley Manning's most senior commanding officer in the BriagdeS2 Section until Januan
Major Cliff Clausen who Captain Steven Lim 2nd Brigade Military Intelligence (Ml) Company Commander Brigade S2 replaced when Major Cliff Clausen was removed because according
Captain Steven Lim 2nd Brigade Military Intelligence (Ml) Company Commander Brigade S2 Major Cliff Clausen could not communicate information to tiie Commander inaway Comma^^
needed
MajorGen Michaels Linnington Commander of Joint Task Force-National Capital Region the General Court Martial Convening Authority
Major Matthew Kemkes former military defense counsel for Pfc. Manning asserted at the Article 32 l^etrial hearing that SA Graham's Army CID 29 May 2010affidavitwasa"^^^
documentation" affecting Manning's pre-trial confinement hearing

^ a j D T ^ a t t ^ ^ w l ^ ^ m l ^ ^ s military d ^ f ^ n s ^ U S v ^ f c . ^ a n n i n ^
Major Thomas Huriey military defense USvPfc Manning
ManTech International
Manual for Military Commissions (MMC)
March 14at 7:35pm Govemment says we notified civilian counsel that we droppedaCD with 12Pages of discovery that refers to impeachment information that questions credibility of witness] on
AdrianLamo
March 2010 did you know about an equal employment complaint that according to Captain Steven Lim 2nd Brigade Military Intelligence (Ml) Company Commander Brigade S2invol^^
threats
Marguerite Coffey former Department of State (State Department) (DoS) director of the Office of Management Policy Right Sizing and Innovation who also acted as tiie super^^^
WkiLeaks MitigationTeam
Marguerite Coffey former State Department director of the Office of Management Policy Right Sizing and Innovation who also acted as the supervisor of the WkiLeaks Mitig
Marine Corps Intelligence
Marine Security Guard Papakie at Quantico Brig Operations Officer
Mark Johnson ManTech Intemational Contractor reports to Special Agent David Shaver Army Computer Crimes Investigative Unit (CCIU)
MarkRasch
Master Sergeant Brian Paki(sp.)

I^aster5er^eant^ai^l Oavid Admins (no^^er^eant^st Class due to administrative action)
Master Sergeant Paul David Adkins (now Sergeant IstClass due to administrative action)wrote three memoranda Memorandum One: "pfc. Manning^s instability he^^
care one to h^otimesaweek might have helped Manning.^t Master Sergeant Adkins did nothing.Memorandum Two: "Pfc.Manning exhibits bizame behavior...event's reem^^^
wrote that memo and yet did nothing.MemorandumTf^ree: "Manning was sitting upright knees clutched as though in pain"Adkins noticed an open Gert^er knife "Manm
'I want'with the blade He felt that he was not theres was notaperson.He said he wasaturtlewithacorepei^onality and several layers ofhard shell to protect his personality. He
recover." Adkins wrote that memo and yet did nothing. That night Manning struck Showman
McGrath is also the Department of State's primary liaison to the National Counterten^orism Center where RusselTravers was Deputy Director in charge of the NCTC's"authoritati
supporting the Ten^orist Screening Center and the USG's watch listing system" before the President's National Security Advisor picked him to head the NSS'Interagency Commi^^^
WkiLeaks.As it tums out McGrath is also the Department of State's primary liaison to Terrorist Screening Center (TSC)-an inter-agency organization lead by the FBI and
"single database ofidentifying factors" about individuals suspected by the UGSofinvolvement in terrorist activities.The TSC maintains the "Ten^oristWatch-l^^^^
"Selectee List"-thelatertwo being subsets of theTerrorist Screening Database (TSDB) used by the Transportation Security Administration-which associates and supp^^^
Bradley Manning and WkiLeaks have found tiiemselves detained and interiogated by means of including: David House; Jacob Appelbaum; Jennifer Robinson and with her ex
"inhibited list" and others.
Military Commissions Act
Military DistrictofWashington (MDW)
Military Judges Bench Book
Millennium Challenge Corporation

ml^C
Model Specification
Mona Sutphen President's Intelligence Advisory Board
Motion for the Investigating Officer LL CoL Paul Almanza to Recuse himself

^ovi^s
MP Bradley at the Security Officers desk during tiie Article 32 Pretrial Hearings of USvPfc. BradleyManning

Mr ^etts u s Cyber Command Cl^ie^ Classification Officer madeaclassi^cation determination for ^tl^eal^^^
l^usic
Izational Archives
National Countertemorism Center (NCTC)
National Geospatial-lntelligence Agency
National Reconnaissance Office
National Security Agency (NSA)
National Security Council
National Security Council Insider Threat Task Force
National Security Staff (NSS) Steering committee
Neil MacBride U.S. Attomey for the Eastem District of Virginia

l^et Centric OiplomacyOatal^ase
NewYorkTimes

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NIPRNetcomputerfromtheSupply Room atFQB Hammer Iraq
NlPRNet computer that includedaprofile for Bradley Manning
NODIS (The use of frie NODIS caption identifies messages of tiie highest sensitivity between the President the Secretary of State and chief of mission, ^ou must not di
to anyone other than the intended recipient without prior approval from the Executive Secretariat (S/ES-0). See US Department of State (State Department) (DoS) Foreign Affairs Manual Volume
5Handbook2Telecommunications Handbook for more info)

nondisclosure Agreement
Note that this determination about unswom statements of Official Classification Authority (OCAs)by the Investigating Officer LL CoL Paul Almanza fonned one offour
Motion for the Investigating Officer LLCoL Paul Almanza to Recuse himself
OCA CLASSIFICATION REVIEW Additionally on17November 2011 the Government provided the Defense with the four-page GTMO classification review completed o n 4 ^ ^
Finally the Defense was provided with two classification reviews on 12 December 2011:athree-pageCenti^al Intelligence Agency (CIA)(Govemment Agency) class
Central Intelligence Agency (CIA) (Govemment Agency) classification review
OCA CLASSIFICATION REVIEW Beginning on 24 October 2011 the long-awaited OCA classification reviews began to trickle in. The Government provided the Defense with the D^^
Information SystemsAgency (DISA) classification review on 24 October 2011
OCA CLASSIFICATION REVlEWThe Govemment also provideda28-page Central Intelligence Agency (CIA) (Govemment Agency)classification review to the Def
Central Intelligence Agency (CIA) (Govemment Agency)classification review and its disclosure to the Defense
OCA CI^SSIFICATION REVlEWThe Govemment providedafew more classification reviews to the Defense on8November 2011 This round of disclosure includedath
PowerPointclassificationreviewthatwascompletedon21 February 2011A24-page CENTCOM classification review that was completed on 21 October 2011Afour-pageC^BE^^
classification reviewthatwas completed on 21 July 2011 anda51-page Department of State classification review thatwas completed on 30 October 2011.The Govemment did not
reason forthe eight-plus month delay between the completion of the CENTCOM PowerPointclassification review and its disclosure orthe reason forthe three-plus month delay b ^ ^
completion of the CYBERCOM classification review and its disclosure
OCA CI^SSIFICATION REVIEW The Govemment provided the three-page Apache Video classification review which was completed on 26 August 2010to the Defense on4
The Defense received no explanation for the delay of overayear and two months between the completion of this classification review and its disclosure to tiie Defense
OCA CLASSIFICATION REVIEW The Govemment provided the three-page Apache Video classification review which was completed on 26 August 2010to the Defense on4November 2011.
The Defense received no explanation for tiie delay of overayear and two months between the completion of this classification review and its disclosure to the Defense.OCA CLAS
REVIEWTheGovernmentalsoprovideda28-pageCentrallntelligenceAgency(CIA)(GovernmentAgency)classification review to the Defense on4November 2011
OCA testimony went to the heart of one of the elements of recharged offenses
Off^ense 26 of the Military Commissions Act
Office ofCounterintelligence and ConsularSupport in tiie Bureau of Intelligence and Research atthe Department OfState (State Department) (DoS)
Office of Naval Intelligence

C^ce o^t^e Director of national Intelligence(COI^I)
Office ofthe DirectorofNationallntelligence(ODNI)C^N^UR Logs (NetFlow Logs)
Office ofthe Directorof National Intelligence (ODNI) Classification Review
Office of the Director of National Intelligence (ODNI) Keyword Search Logs
Office of the Director of National Intelligence(ODNl) The Govemment intends to use information from tills Department during its case-in-chief

0^c^otth^^ationalCotint^rint^lli^^nc^5x^ctiti^^(OI^CIX^
Office of ttie [national Counterintelligence executive (0[^CIX) damage assessment
Office of tiie National Counterintelligence Executive(ONCIX) The Court found in its njling that ONCIX wasaclosely aligned agency
on 10December2010CapL Hocter forensic psychiatrist forthe Quantico brig recommended thatlremain under POI watch for one week thefollowing week he once again recommended to CW4
James Averhart thatlbe removed from POI watch
on 13September2012the Govemment responded 66 days affer request saying "The Ouantico video [Referenced in Bates Number 00042936] does not exists
on 15March2012Article39(a)Session Judge Lind recitedasynopsis of the RCM 802 conference: When the Govemment spoke about Brady search the Government said they had notfound
anyBradymaterialeventhoughtheylookedforayear Fein (Prosecution): CorrecL Evolving...
On 16April2012then-CPT Fein sent an email to Mr Coombs explaining that of the 14hard drives referenced in the Defense's 21 September 2011 Discovery Request and the Court's 23 March
2012n.iling on the Defense Motion to Compel2drives were completely inoperable7drives were wiped andldrive was partially wiped...The email did not state when the8driv
On 16 January 2012the Defense filed another Request for Oral Deposition naming two additional Original Classification Authority (OCAs)
On 16November 2011 the Govemment notified the Defense and the Article 32 Investigating Officer (10) that the Special Court-Martial Convening Authority (SPCMA) ha
Article 32...Tfie SPCMA ordered the Article 32 to start no eariier than thirty days from 16November and to conclude no later than sixty days from 1^Novemt:^^r...Given the Governments
respond to the Defense's requests filed on 13 May 2011 21 September 201113October201115November 2011 and 16 November 2011 the Defense filedaDefense Request for Production 0^
Evidence with the Article 32 Investigating Officer LL Paul Almanza
On 18January 2011 over the recommendation of CapL Hocterforensic psychiatrist for the Ouantico brig and the defense psychiatrist CapL Brian Moore former Quantico Brig Commander C ^ ^
Averiiart placed me under suicide risk
On2December2011 the Defense submitted its witness list to the Article 32 Investigating Officer naming tiie seven Original Classification Authority OCAs'as witnesses and
the relevance ofeach ofthe Original Classification Authority OCAs'testimony. At the time therewere seven identified Original Classification Authority OCAs Asubsequent Original Cl^^
Authority OCA was requested as soon as his identity was known to the Defense
On 20 May 2009[NOT^ DATE SAME TIME video" folder BE22PAXzipcreated]alarge number of files were downloaded and compressed intoa.zip file.T^ese included .jpg
presentations and documents from hospital burn victims. Special Agent David Shaver Computer Crimes Investigation Command (CCIU) did not examine this .zip file because it was no
present on the Alienware 22 computer
on 22 March 2012statement to the Court the Govemment stated''the United States is concurrently wori^ing with other Federal Organizations which we haveagood faith basis to believe ma
possess damage assessments or impact statements...."See Prosecution's Response to Court's Email Questions (22 March 2012)
On 23 March 2012the Court granted the Defense Motion to Compel Discovery in part with regard to the 14 hard drives from theTactical Sensitive Compartmented Information Facility (
and theTactical Operations Center (TOC) of Headquarters and Headquarters Company (HHC) 2nd Brigade Combat Team (BCT) 10th Mountain Division Forward Operating Base (F
On 23 March 2012the Court granted the Defense Motion to Compel Discovery in part with regard to the 14 hard drives from theTactical Sensitive Compartmented Infonnation Facility (T^
and theTactical Operations Center (TOC) of Headquarters and Headquarters Company (HHC)2nd Brigade Combat Team (BCT) 10th Mountain Division Forward Operating Base (FO^
IraqThe Court Ordered the Government to immediately cause an inspection of the 14hard drives for the presence of Wget
On 24 May 2012MAJ Fein wrote to the General Counsel at Office ofthe National Counterintelligence Executive (ONCIX)
On 29 July 2011 the Govemment sent outamemo to Headquarters Department of the Army requesting it to task Principal Officials to search for and preserve any discoverable information
On8June2012the Govemment provided Defense with oral notification of the existence of the DHS damage assessment
on April192011 aday before Bradley Manning's unexpected transfer to Fort Leavenworth defense reported finding out aboutaJanuary 132011 secret high-level meeting and suspected their

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knowledge of the meeting may have led to the Department of Defenses'about-face on Manning's illegal pretrial confinement
On April 24 2012the Govemment produced the Department of State damage assessment for in camera review
OnAugust62010oneofthesementalhealthprofessionalsdeterminedtiiatPFC Manningwas no longerasuicide risk
On December102010CapLHocterforensic psychiatrist for the Quantico brig recommended thatlremain under POI watch for one week the following week he once again recommended to CW4
James Averhart thatlbe removed from POI watch
On January 13 2011 secret meeting involving high-level Quantico officials where it was ordered that PFC Manning would remain in maximum custody and under prevention of injury wa
indefinitely
on January 132011 secret meeting involving high-level Ouantico officials where it was ordered that PFC Manning would remain in maximum custody and under prevention of injury w a t ^
indefinitely
onJanuary 192011 DefensehadfiledtheoriginalArticle138requestonedayafferManningwasplacedunder"suiciderisk"whichresultedinhisremaininginhisc
being stripped of all clothing with the exception of his underwear His eyeglasses were also removed which leff him as he describes in "total blindness''. According to defens
stripping and interrogation that Manning endured was videotaped by the Quantico facility
on March22011 PFC Bradley Manning tiien confined under Maximum custody and Prevention of Injury Watch (POI) at Quantico where he had been since July 29 2010was told that his Arti^^^
138 request to be placed under Medium custody and removed from harsh and punitive pretrial confinement was denied by DanielJ Choike
On May312012the Govemment provided notice to the Court and the Defense that ONCIX hadadraff damage assessment Along with the Govemment's notice it providedacopy of its 24 May
2012lettertoONCIXandthereplybyONCIXon30May2012
on November 22 2011 defense also filed the following request for the production of evidence of the Quantico video of Manning being stripped and interrogated
Open Source Center Logs

Cri^ina^ Classification Aut^Drity(CCA)
Otiier unspecified log files that special Agent David ShaverComputerCrimes Investigation Command (CCIU) said hundreds ofthousands ofotherfiles being downloaded at
Package of Bradley Manning's personal belongings from Camp Arisen sent to his aunt Debra Van Alstyne
partment of State (State Department) (DoS) briefing of House and Senate on December22010
Patricia Wlliams

l^atric^^^nn^dyUnd^rs^cr^tary for ^anag^m^nt at tt^^ DepartmentofState
Patiick Kennedy UndersecretaryforManagementatthe Department ofState briefed Congress In late November and early December of 2010about WikiLeaks
Patrick Kennedy Undersecretary for Management at tiie Department ofState testimony before Senate Committee on Homeland Security and Governmental Affairs in March of 2011
Paul Kaminski President's Intelligence Advisory Board
PFC Manning had fi^ll authority to access the government computer(s)at issue and at no time did he obtain or alter information tiiat he was not entitled to obtain or alter
PFC Manning's cellular telephone
PFC Manning's RCM 707 speedy trial rights have been violated
Pfc. Manning allegedly signed seven Non Disclosure Agreements (NDAs)
Philip ^elikow President's Intelligence Advisory Board
PJCrowleyfomer spokesperson forthe Department of State (State Department) (DoS)
Portion of the Excel spreadsheet display of the CENTAUR log data forthe Alienware .22 or Dell.40 machines connections to the CENTCOM CIDNE database inTampaFL
Portion of the Excel spreadsheet display of the CENTAUR log data forthe Alienware .22 or Dell.40 machines connections to the SOUTHCOM GTMO server
Portion of the Excel spreadsheet displayed in Court of the CENTAUR log data for tiie Alienware .22 or Dell.40 machines connections to the Department of State (State Department) ( D ^
NetCentric database
President Barack Obama
President Barack Obama 21 January 2009 FOIA andTransparency and Open Government memoranda
President Barack Obama 29 December 2009 Executive Order13526
President Barack Obama8December 2009 Open Government Directive (OGD)
President Barack Obama Reducing Over-Classification Act on70ctober 2010
President Barack Obama statements about CIDNE (Combined Information Data Networi^Exchange)Afghanistan
President Obama issued Executive Order (EQ)13587 "structural Reforms to Improve the Security of Classified l^etworks and the Responsible Sharir^g and 5afeguardin
Information" on7Qctober 2011
President's Chief of Staff formerly William Daley
President's Chief of Staff Jacob Lew
President's Daily Brief (PDB)
President's Intelligence Advisory Board
President'sNationalSecurityAdvisorThomasE.Donilon
President's National Security Council's Interagency Process (lAP)
Primary leadforWkiLeaks investigation was Camp Liberty Anny Criminal Investigation Command (CID) and the Department ofState (State Department) (DoS).Then the Federal Bure
Investigation (FBI)
Prosecution's notice to the Court of the computer forensics regarding the programs and the music and the videos that was not authorized on the Government computer
ProtectiveOrder
Quantico base commander
Quantico Brig Commander ChiefWan^ant Officer Denise Bames
Quantico Brig Commander Chief Warrant Officer Denise Bames used my sarcastic comment as justification to increase the restrictions imposed upon me under the guise of being concerned that
Iwasasuiciderisk
Quantico Brig lncidentReporton13March 2011
Ouantico Duty Brig Supervisor on13March 2011
Ouantico suicide prevention blanket

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Quantico suicide prevention mattress
Quantico suicide prevention smock
Quantico Video Referenced in Bates Number 00042936
Ray ^abus Secretary of the l^avy
Raymond G. McGrath director ofthe Office of Counterintelligence and Consular Support in the Bureau of Intelligence and Research at the l^partment of State ( S t a t e d
RearAdmiral Oavid ^ . ^ o o d s C o m m a n d e r J o i n t T a s k Force Ouantanamo(JTF GTMO)
Rear Admiral Kevin Donegan Director of Operations USCENTCOM conducted classification reviews of two PowerPoint (PPT) presentations relate to Farah Province Afghanistan and
SpecificationlOof Charge ll
REDACTED4August2010the Convening Authority ^^^Redacted^^^^^Redacted^^^ appointed LL CoL Paul Almanza Article 32 Investigating Officer as the new Investig
Convening Authority ultimately issued its preliminary classification order for tiie defense team on 22 September 2010
REDACTED4Wtnesses requested by Defense forthe Motion to Dismiss all Charges and Specifications with Prejudice for Lack OfaSpeedyTrial
REDACTED Article 32 Investigating Officer LL CoL Paul Almanza determined that the testimony of six ofthe seven Original Classification Authority (OCAs)was "relevant
of the OCAs'expected testimony did not "outweigh the difficulty expense and effect on military operations" so as to justify tiie Original Classification Authority (OCAs)presence
He found the XXXXXXXXXX expected testimony was not relevant to the f o m of the charges the truth of the charges or information necessary to make an informed recommendation
REDACTED As the Govemment acknowledges two of the requested OCAs RobertESchmidle Deputy Commander US CYBERCOM and Mr Betts Chief Classification Officer US C^BER^^
were stationed at Fort Meade Maryland.It is indefensible to suggest that neitherwas "reasonably available" to be produced at the Article 32 v^ich was held at the OCAs'hom
REDACTED As was explained by REDACTED the forensic psychiatrist for the Quantico Brig the "[sjuicide precautions and POI [imposed upon PFC Manning while he was at the Brig] were
excessive and were making [PFC] Manning unnecessarily anxious"
REDACTEDCentral lntelligenceAgency:AnyreportcompletedbytheWkileaks Task Force(WTF)andanyreportgenerated bythe WTF underthedirecti
THECIA
REDACTED CoL RobertG. Oltman formerformer Security Battalion Commander was obviously simply relying an order from ^^^Redacted^^''^ the ^^Redacted'^^^^^^Re
Quantico
^^^DACTEDCommander^sWHAT^STHlS?nee^
REDACTEDComputer assigned IP address XXXXXXXXXX WHAT IS THIS? IS THIS PETER BIGELOWS PERSONAL LAPTOP? (Special AgentAlfred Williamson CCIU)
REDACTED Defense Computer Forensic Expert
REDACTED Department of Defense:The damage assessment completed by the IRTF and any report generated bythe IRTF underthe guidance and direction of RONALD L. BURGESS
FORMER DIRECTOR OFTHE DEFENSE INTELLIGENCEAGENC^
REDACTED Each of the OCAs is eitheraGeneral Officer orahigh ranking civilian employee with the exception of [tiie General Officer is James Culky(sp.)4tii Cavalry
Official Classification Authority for classification review of the unclassified July 122007 Baghdad airstrike videos also known as "Collateral Murder" Se
REDACTED Each of the OCAs is eitheraGeneral Officer orahigh ranking civilian employee with the exception of [the General Officer is James Culky(sp.)4th Cavalry Di
Official Classification Authority for classification review of the unclassified July 122007 Baghdad airstrike videos also known as''Collateral Murder''See15March 20
where Coombs identified Culky(sp.)asacivilian]
REDACTED evidence cited by Defense which seems to argue that the conduct alleged in all Specs4567occun^ed on the same day Additionally the disclosures ofthe Combined 1^^^
Data Network Exchange Iraq database records and the Combined Information Data Network Exchange Afghanistan database records occurred at tiie same time page 11 footnotel
REDACTED evidence cited though the Govemment alleges different date ranges for Farah records and Garani video Specification lOand 11 these two disclosures in reality the cl^^
and the video were disclosed at the same time on the same day 11 April 2010 Page 12^13Footnote2
REDACTED FBI case file number XXXXXXXXXX [WHATIS THIS NUMBER?] any other collateral investigations by the [Federal Bureau of Investigation] FBI related to tii^^
weeks prior to the start of the Article 32 hearing
REDACTED Finally and most egregiously Col.RobertG. Oltman former former Security Battalion Commander and senior rater of the ^^^Redacted^^^ indicated ata13January 2011 meetin
there would be no relaxation of the restrictions of PFC Manning's confinement "on [hisjwatch" notwithstanding the dissenting views of the Brig's medical health personnel because h
that the Brig could do whatever it wanted to do when it came to PFC Manning's confinement
REDACTED In December2010XXXXXXXXXXandXXXXXXXXXXXannounced that there was an ongoing jointinvestigation bythe Department OfDefense (DOD) Oepartment
Department) (DoS) Department of Justice (DoJ) Federal Bureau of Investigation (FBI) and Central Intelligence Agency (CIA)
REDACTED In the19January 2011 discovery request the Defense requested that tiie Government preserve the Quantico confinement facility video tape of BRADLEY MANNING'S
INTERROGATION B^ FOUR GUARDSThis video documents the CW4JAMES AVERHART OUANTICO BRIGCOMMANDER ordering PFC Manning to be placed in suicide preventionThe
decision to strip PFC Manning of his clothes and place him under suicide prevention was made over the recommendation of THREE OUANTICO BRIG FORENSIC PSYCHIATRISTS
REDACTED In the19January 2011 discovery request the Defense requested that the Government preserve the Quantico confinement facility video tape of BRADLEY MANNING'S
INTERROGATION B^ FOUR GUARDSThis video documents the CW04 JAMES AVERHART QUANTICO BRIGCOMMANDER ordering PFC Manning to be placed in suicide preventions T^^
decision to strip PFC Manning of his clothes and place him under suicide prevention was made over the recommendation of THREE OUANTICO BRIG FORENSIC PSYCHIATRISTS
REDACTEDindividualwhoSergeant(formerSpecialist)DanielPadgettsaidinaswomaffidavitshouldhavebeencounseling Pfc. Manning
REDACTED LL CoL Paul Almanza Investigating Officer at the Article 32 Pretrial Hearing ruled on damage assessment and closely aligned organizations: Department of Justice
not reasonably available as this wasajoint investigation this evidence is cumulative with evidence of the CID case file and also the govemment has said it has no knowledge of g
testimony or search warrants from the Department of Justice (DoJ) which leads toaconclusion that the limited significance of this evidence is not outweighed by the delay in ob^
REDACTED LL CoL Paul Almanza Investigating Officer at the Article 32 Pretrial Hearing ruled on damage assessment and closely aligned organizations: Department of S^^^^
(DoS):The "evidence is not relevant to the form of tiie charges the tmth of the charges or infonnation as may be necessary to make an informed recommendation as to dispositions
the extent of the harm caused by the charged offenses is not relevant toadetermination as to whether PFC Manning committed the charged offenses and if so what the disposition of those
charges should be.Additionallylunderstand from the 12 December 2011 telephone conference with XXXXXXXXXX and Mr Coombs that the government does not have the authority to dis
damage assessments and thuslconclude that any evidence of damage assessments is not reasonably available"
REDACTED LL CoL Paul Almanza Investigating Officer at the Article 32 Pretrial Hearing mled on damage assessment and closely aligned organizations:The "evid
of the charges the tmth of the charges or information as may be necessary to make an informed recommendation as to disposition specifically the extent of the ham caused by the charged
offenses is not relevant toadetemiination as to whether PFC Manning committed the charged offenses and if so what the disposition of tiiose charges should be.Additionallyl^
the 12December 2011 telephone conference with XXXXXXXXXX and MrCoombs that the government does not have the authority to disclose damage assessments and thuslconclude tiiat any
evidence of damage assessments is not reasonably available"
REDACTED LL CoL Paul Almanza Investigating Officer at the Article 32 Pretrial Hearing ruled: EnCase Forensic lmases:The "evidence is relevant as it could help establi^^
for soldiers in these locations to place unauthorized software to these computers however this evidence is not reasonably available because its significance is lessened by the fact i^
to the testimony of at least XXXXXXXXXX and XXXXXXXXXX and as the govemment has indicated tiiat it is still working to preserve this evidence its limited
delay ofobtaining this evidence"
REDACTEDOn14March2011 almost two weeks afferthe suspense date set forth in the Convening Authority's3February 2011 orderto resume conducting the RCM 706 board
^^^Redacted''^^^ ^^^Redacted^''^^ Forensic Psychologist sought an extension of tiie suspense date for the RCM 706 board until 29 April 2011 See 14 March 2011..^1^
^^^Redacted'^^^ related that the RCM 706 board needed 57 more days than the original suspense date of3March 2011 because''[t]he evaluators are coordinating suitable dates
finalevaluationsessiontotakeplace
This involves multiple parties Additionally the final interview will take place ataSCIF and this has resulted in the consum
the evaluation to be coordinated"
REDACTED On15April 2011 tiie day before the extended suspense date for the completion ofthe RCM 706 Board's evaluation ^^^Redacted^^^ on behalf of the Board requested yet a
delay in the suspense date.See15April 2011 Memorandum Requesting Extension for Sanity Board Attachment 27.^''^^Redacted^^ requested an extended suspense date of close of b

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22 April 2011.See id.^^^Redacted^^^explained that this delay was necessary because of the Board's "limited availability to meet asafull board to discuss the rep
schedules and demands ofthe three board members"
Redacted person with whom Sergeant (former Specialist) Daniel Padgett woriced on tiie night-shift with in addition to then F^c. Manning
REDACTED PFC Manning filed numerous complaints about his pretrial confinement and requests to have his confinement conditions reconsidered-acomplaint with the
^^^Redacted^^^^^^Redacted^^^ADD Form 510complaint through the Brig's grievance processArequest for release from pretrial confinement under RCM 305(g)arequest for re^
Article 138 and two rebuttals of the inadequate responses to this request to be precise-all to no avail
REDACTED T^e^^^Redacted^^^^^Redacted^^^^^^Redacted^^^ approved of the Duty Brig Supervisor's Maximum (MAX) custody detemination and also decided that
placed under special handling instmctions of Suicide Risk (SR) Suicide Risk (SR) Despite the recommendations of two senior forensic psychologists(and contrary to the requirement
Secretary of Navy Instmction (SECNB^INST) 1640.9C) the Brig did not immediately remove PFC Manning from Suicide Risk waiting almostafull week to move PFC Manning from Suic^
to Prevention of Injury (POI) status on 11 August 2011 For the next8months PFC Manning remained in MAX custody and POI status despite the recommendations of multiple psyche
he be downgraded from POI status PFC Manning under MAX custody and POI status he was placed on Suicide Watch on two separate occasions: from 18January 2011 to 21 January 2011 and
from2March 2011 until tiie time he was transferred to the Joint Regional Comectional Facility (JRCF) at Fort Leavenworth Kansas on 20 April 2011
REDACTED The Defense requestedacopy ofthe videoofPFC Manning being orderedtosurrenderhisclotiiing atthe direction ofCW4JAMES AVERHART FORMER QUANTICO BRIG
COMMANDER and thesubsequent interrogation by FOUR UNNAMED GUARDS
REDACTED The Defense requestedacopy ofthe video of PFC Manning being ordered to surrenderhis clothing at the direction ofCW04 JAMES AVERHART FORMER OUANTICO BRIG
COMMANDERandthesubsequentinten^ogation by FOUR UNNAMED GUARDS
REDACTED The Department of Defense (DOD)reached out for assistance from the Department of State (State Department) Federal Bureau of Investigation (FBI) Defense Intelligence Agency
(DIA) Office of the National Counterintelligence Executive(ONCIX) and Central Intelligence Agency (CIA).The Defense argued that it was entitled to receive
reports by any ofthe cooperating agencies in this investigation Additionally the Defense noted that ROBERT GATES FORMER SECRETARY OF DEFENSE on 29 July 2010directed the
Defense Intelligence Agency (DIA) to leadacomprehensive review of the documents allegedly given to Wkileaks and to coordinate under the Information Review Task Force ( 1 ^ ^
725 to conductacomplete damage review.The Defense believed based upon public acknowledgements by representatives of the Govemment that the results of this damage re^^
undercut the testimony of each the Original Classification Authority OCAs for the charged documents. Specifically based upon public documents it appeared that the InfomationR
Force IRTF concluded that no sources or methods were revealed by the alleged disclosures and that all of the infonnation allegedly disclosed was either dated represented
was already commonly understood and known due to previous public disclosures
REDACTED The Department of State (State Department) (DoS)fonnedatask force of over120 individuals to review each released diplomatic cable The task force conductedadamage
assessment of tiie Leaked cables and concluded that the infonnation leaked either represented low-level opinions or was already commonly known due to previous public discl^^
to published reports in multiple new agencies including the Associated PressT^e Huffington Post and Reuters intemal US govemment reviews by the Department of Intense an
of State determined that the leak of diplomatic cables caused only limited damage to US interests abroad. According to the published account "[a] congressional officia
stated that the adminisfration felt compelled to say publicly that the revelations had seriously damaged American interests in order to bolster legal effori^ to shut down the W
bring charges against the leakers."The official is quoted as saying "we were told (the impact of Wkileaksrevelations)was embarrassing but not damaging"This determi
the classification review conducted by the Original Classification Authority (OCA). As such the Defense argued that XXXXXXXXXX should not be pemitted to espouse is inconsistent w
damage assessments conducted by the govemment
REDACTED The DOJ has conductedavery public investigation of WikiLeaks as referenced by XXXXXXXXXX The Defense requested any grand jury testimony and any infomationrelati
any18USC 2703(d) order or any search warrant by the government ofTwitter Facebook Google or any other social media site that was relevant to PFC Bradley Manning
REDACTED The Government acknowledges that the FBI in this case participated inajoint investigation of the accused.It also acknowledses that the DOJ is closely aligned in t
redaction)
REDACTED TheGovernment produced the Quantico video of PFC Manning being ordered to surrender his clothing but not the video ofthe subsequent interrogation by CW4 James Averha
Quantico Brig Commander At the15March2012Article 39(a) Session the Government said the video of CW4Averiiart did not exist
REDACTED The Govemment produced the Quantico video of PFC Manning being ordered to sun^ender his clothing but not the video of the subsequent interrogation by CW04 James Averiiart
Quantico Brig Commander At the15March2012Article39(a)Session the Government said the video of CW04Averiiart did not exist
REDACTED Three civilian Original Classification Authority(OCAs)one of them is Mr Betts US CYBERCOM Chief Classification Officer classification determination fo^
Ambassador Patrick Kennedy Undersecretary for Management at the Department of State who reviewed the disclosure of Department of State Diplomatic Cables stored within Net Centric
Diplomacy server and part of SIPDIS Robert Rowland
REDACTED Three Original Classification Authority (OCAs)the Govemment refused to provide the contact info for are Ambassador Patrick Kennedy Undersecretary for Management at tiie
Department ofState Robert Rowland and Mr Betts US Cyber Command Chief Classification Officer
REDACTEDTwo individuals (2) who Sergeant (fomer Specialist) Daniel Padgett said in his sworn affidavit gave pemission to handle disciplinary actions for PFC Manning
REDACTED Unknown A m y CCIU Agent No7on2December 2011 Defense Request for Article 32 Wtnesses XXXXXXXXXX [WHO IS THIS?] is one of the agents thatwori^edexten
this case for CCIU to include interviewing multiple witnesses in the case and conducting field investigation for the CCIU.XXXXXXXXXX[WHO IS THIS?]will testify
case and the investigative steps that he took.
REDACTED Unknown Diplomatic Securify Services (DSS) atthe Department ofState (State Department) (DoS) Agent No8on2December 2011 Defense Requestfor
XXXXXXXXXX[WHOISTHIS?]isoneofthelawenfon:^ementagentsthatconductedworkontiiiscaseThedefenserequeststhatXXXXXXXXXX[WHOlSTHIS?^
lnvestigating0^cer[LL CoL Paul Almanza]and the defense withacomplete copy of DSS diplomatic Security Services at the Depa^
XXXXXXXXXX[WHATtSTHIS NUMBER?]and any other collateral investigations bythe DSS [Diplomatic SecurifyServices at the Department ofState
case at least two weeks priorto the start of the Article 32 hearing
REDACTED With the exception of James Culky 4th Cavalry Division Brigade S2 is the Official Classification Authority for classification review of the unclassified July 1220
videos also known as "Collateral Murder" the Government did not deny that the testimony of the Original Classification Authorify OCA was relevant
relating to the national defense
Rena Bitter director of reoperations Center (S/ES-O) at the Department of State (State Department) (DoS)
Representative of the United States of American to the United Nations Susan Rice

Reykjavi^l^
Richard Oanzig President's Intelligence Advisory Board
Rita Hauser President's Intelligence Advisory Board
Robert Boback Chief Executive Officer of Tiversa Inc.aFederal Bureau of Investigation (FBI) contractor
Robert Oates Fonmer Secretary of Oefense
Robert Gibbs White House Press Secretary
Robert Rowland
Roel Campos President's Intelligence Advisory Board
RogersChannel(UseROGERCHANNELforcommunicationsbetweentheAssistantSecretaryforlntelligenceand Research (INR)andthechiefofmission See
Department)(DoS)ForeignAffairs Manual Volume5Handbook2Telecommunications Handbook for more info)
RonaldL Burgess fomer director of the Defense Intelligence Agency
Rop Gonggrijp
Rop Gonggrijp Twitter
Russe^lTravers national Security StaffSeniorAdvisorforlnformationAccess and Security

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Sadler (sp.)
SD card allegedly obtained during the second search of Debra Van Alstyne Bradley Manning's aunt home atter having allegedly been shipped from Iraq in October 2010
SD card collected from Bradley Manning's Debra Van Alstyne home apparently sent from Iraq
Secretary of Energy Steven Chu
Secretary of Homeland Security Janet Napolitano
Secretary of State Hillary Clinton
Secretary of State Hillary Clinton attended the Organization for Security and Cooperation in Europe (OSCE) which was the main focus the 24/7 WikiLeaks Working Group namely staying ahead
of the news cycle
Secretary of the Army John McHugh
Secretary of the Army's 15-6 investigation
Section 3 "type files"
Senator Carl Levin Chair of the Senate Armed Services Committee

Sergeant (former Specialist) Daniel Padgett
Sergeant (former Specialist) Daniel Padgett testified that he was never Pfc. Manning's direct supervisor although he was Pfc. Manning's supervisor on the night-shift and
that he was not in Pfc. Manning's chain of command. Sergeant (former Specialist) Daniel Padgett testified that despite him not being in Pfc. Manning's chain of command he
did request to counseled Manning when he saw an alleged incident in December 2009 with Pfc. Manning on the night-shift. Sergeant (former Specialist) Daniel Padgett
testified that during that counseling session on the importance of being on time in the [Major Clauson] Brigade S2's office in the T-SCIF at FOB Hammer Pfc. Manning
allegedly "was staring at me" and Sergeant ( f o m e r Specialist) Daniel Padgett testified that he asked Pfc. Manning not to do that "because it made me uncomfortable."
Sergeant (former Specialist) Daniel Padgett testified that Pfc. Manning allegedly "turned the table upside down and was restrained by an S2 olficer [Chief Wan-ant Officer
Four (CW4) Airsman (Sp.)]." Sergeant (former Specialist) Daniel Padgett testified that after Pfc. Manning allegedly flipped the table over everything hit the ground. Sergeant
(former Specialist) Daniel Padgett testified that he allegedly moved Pfc. Manning away because Sergeant (fomier Specialist) Daniel Padgett testified he saw there were
weapons. Sergeant (fonner Specialist) Daniel Padgett testified that the officer in charge Chief Warrant Officer Four (CW4) Airsman (sp.) restrained Pfc. Manning by sitting
him on a bench and telling Pfc. Manning to sit. Sergeant (former Specialist) Daniel Padgett testified that during the alleged December 2009 incident "We cleared the room."
Reitman notes that Sergeant (former Specialist) Daniel Padgett testified that "two computers and a radio crashed to the ground". Sgt. Padgett put his hand on PFC Manning
to calm him down. Moments later the Chief Warrant Officer [Four (CW4) Airsman (sp.)] put PFC Manning in a "full nelson" style wrestling head lock." Sergeant (former
Specialist) Daniel Padgett testified that he spoke to a few people in the brigade about the incident but that he did not talk to Master Sergeant (not Sergeant First Class)
Adkins Major Clausen the First Sergeant or Company Commander Drewer (sp.). Sergeant (former Specialist) Daniel Padgett testified that there was no UCMJ [Uniform
Military Code of Justice] action received by Pfc. Manning due to the incident in December 2009. Showman testified that her desk was outside the entrance to the T-SCIF
conference room. Specialist Jihrieah Showman testified however that she heard Manning scream and she got up and went to the door of the conference room. Specialist
Jihrieah Showman testified to an eariy May 2009 incident with Bradley Manning before deployment. Showman testified that Bradley Manning missed PT fonnation and
Showman went to the ba macks to find out where Bradley Manning was. When she knocked on Bradley Manning's door Manning opened it and Showman testified that
Manning looked like he had just woken up. Showman said that Manning was dressed in civilian clothes. Showman testified that she told Manning that "he needed to get
dressed and get downstairs." Once Manning got into uniform she talked to Manning as she walked with him back to formation. She asked him "How he had slept why he
wasn't at formation was it an alann situation? Why hadn't he shown up? " Showman testified that Manning did not respond to anything that Showman said to him. Showman
told Manning she would have to counsel him and that he would have to show up eariy for a couple weeks for correction. When they came upon Master Sergeant Paul David
Adkins (now Sergeant 1 st Class due to administrative action) Showman testified that Manning allegedly started screaming at the top of his lungs and saliva was coming out
of his mouth. Showman testified that Manning was allegedly swinging his arms around. At that point Master Sergeant Paul David Adkins (now Sergeant 1st Class due to
administrative action) approached Manning and Manning allegedly stopped. Showman testified that Manning's fists were allegedly still clenched and Manning continued to
make grunting noises. Showman testified that when Master Sergeant Paul David Adkins (now Sergeant 1st Class due to administrative action) asked Manning what was
wrong Manning said that he could not take messing up that he "hated messing up." Showman testified that she recommended counseling because Manning lost his "military
bearing" and Showman set up a meeting with Manning. According to Showman's testimony no one alerted the Company Commander at Fort Drum NY and no one
recommended a behavior evaluation. Showman testified that she recommended ftjrther action to Master Sergeant Paul David Adkins (now Sergeant 1 st Class due to
administrative action) and that she told Adkins that Manning was a threat to himself and others tiiat Manning should not have classified actions and tiiat Showman thought
that Manning should not deploy. Showman testified that Master Sergeant Paul David Adkins (now Sergeant 1 st Class due to administrative action) did not pass any of that
information along. Showman testified that she knows that Adkins said something to the S2 Master Sergeant Paul David Adkins (now Sergeant 1st Class due to
administrative action)
Sergeant Chad Madaras
Sergeant Chad Madaras and Bradley Manning were opposite shifts until late in deployment when they switched and Manning worked the day and Madaras at night. They both vortied on the
"Shia Threat" They shared an Alienware and a Dell 6300 computer
Sergeant Chad Madaras met Bradley Manning at Fort Drum in 2008
Sergeant Chad Madaras recounts how Warrant Officer One (WOl) Kyle Balonek and Master Sergeant Paul David Adkins (now Sergeant 1st Class due to administrative action) called Bradley
Manning's name trying to gel his attention and Bradley Manning just stared at his screen unresponsive
Sergeant Chad Madaras thought mIRC was mission critical
Sergeant Chad Madaras was with Bradley Manning at Joint Readiness Training Center (JRTC)
Sergeant First Class Brian Madrid Platoon Sergeant Fort Huachuca
SF312
SID/CCF [Security Investigations Division/ Central Clearance Facility]
Since 2 March 2011 I have been stripped of all my clothing at night I have been told that the PCF Commander Chief Warrant Officer Denise Barnes intends on continuing this practice indefinitely
So the Government is saying that there are 250000 pages in its possession custody and control that relate to the accused Wikileaks and/or the damage occasioned by the leaks that it has not
produced to the Defense?
Something the defense describes as a Farah file in the unallocated space but it is not mentioned by either Reitman or transcriber at any other time. Nor is it clear on which computer (either the
Dell .40 or Alienware .22) or where this reference was found

SOUTHCOM
Spear fishing
Special Agent Aims Army Computer Crimes Investigation Command (CCIU) acting Operations Officer and Special Agent Marit Manders supervisor
Special Agent Alfred Williamson CCIU
Special Agent Antonio Patrick Edwards Army Computer Crimes Investigation Command (CCIU)
Special Agent Antonio Patrick Edwards Arniy Computer Crimes Investigation Command (CCIU) testified that Adrian Lamo was a confidential informant for the Army Criminal Investigation
Command (CID) beginning in the "latter part of July 2010" until August or September of 2011

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SpecialAgentAntonio Patrick EdwardsAnriyComputerCrimeslnvestigationCommand(CCIU)testifiedthathisfirstcontactwithAdrianLamowason25May2010whenUberconn
Edwards to Lamo" Edwards testified that the only other time(s)he communicated witii Lamo affer that was to seupameeting date Edwards testified that he came into physical contact with Lamo
on June 11 2010when Edwards metwith Lamo in CamichaelCA
Special Agent Antonio Patrick Edwards CCIU testified that Adrian Lamo wasaconfidentialinfomant for the Amy Criminal Investigation Command beginning in the "latter part of July 2
August or September of 2011
Special Agent Antonio Patrick Edwards CCIU testified that he attempted to interview Danny Clark beti^een18and 23 June 2010 but that he did not interview Clark because Clark invoked his rig
to counsel
Special Agent Antonio Patrick Edwards CCIU testified that he had knowledge that Danny Clark communicated with Adrian Lamo because Adrian Lamo provided Edwards with the chat log
between Lamo and Claris "around July 22 [2010]"
Special Agent Calder Robertson CCIU
Special Agent Calder Robertson CCIU collected hard drives another unnamed special agent did everything else
Special Agent Calder Robertson CCIU extracted the hard drives from the two SIPR and one NIPR computers collected from the SCIF the personal laptop of Staff Sergeant Peter Bi
Room and the personal extemal hard drive of PFC Manning and can testify concerning the forensic imaging and evidence collection of elecfronic media seized in Iraq

Special Agent Oavid Sl^aver Computer Crimes Investigation Command (CCIU)
special Agent David Shaver Computer Crimes Investigation Command (CCIU) found4complete Gitmo detainee assessments zero files were found in the unallocated space despite special
Agent David Shaver's Computer Crimes Investigation Command (CCIU) assertion that Manning appeared to have download hundreds of Guantanamo detainee assessments
Special Agent David Shaver Computer Crimes Investigation Command (CCIU) in swom testimony that the Microsoff PowerPoint file "Farah.brief.final.version1"alleged to have been downlo^^
by the Alienware .22SlPRNet computer on10April2010at 13:12:24 hours was authorized for download on SIPRNet machines which means the document would have to be SECRET or be
Special Agent David Shaver's Computer Crimes Investigation Command(CCIU) testified that CENTCOM logs evidence only one PowerPoint file "Farah.brief.finai.version1"was do
the Alienware 22 computer on 10April2010at13:12:24 hours
Special Agent Johnson Army Computer Crimes Investigation Command (CCIU) who did analysis of media from Iraq
Special Agent King Army Computer Crimes Investigation Command (CCIU) acting Operations Officer vvho did search authorization interviews and administrative tas
Special Agent Mark Mander Amy Computer Crime Investigative Unit (CCIU) case agent
SpecialAgentMari^ Mander AmyComputerCrimelnvestigativeUnit(CCIU)saysAdrianLamo'sinitialinfomationstartedtheinvestigation
Special Agent Mark Mander Amy Computer Crime Investigative Unit (CCIU) says he doesn't believe Army Computer Crimes Investigation Command (CCIU) directed Jason Katz.That was F
Special Agent Mark Mander Amy ComputerCrime Investigative Unit (CCIU) says there wasagreat deal of concem aboutaforeign intelligence service.They were looking for inf
prosecute
Special Agent Mari^ Mander Computer Crimes Investigation Command (CCIU) testified that Lamo started to cooperate with Amy Criminal Investigation Command (CID) "probably at the end of
May 2010"
Special Agent Schaller Army Computer Crimes Investigation Command (CCIU) who did analysis of media from Iraq
Special Agent foni Graham Army CI0102nd military Police detachment
Special Agent Ton! Graham Army CIO ^29^10affidavit
Special Agent Toni Graham A m y CID 5/29/10affidavit stated Manning had been penetrating .mil and .gov accounts for overayear (Manning was only deployed since Novem
basedon infomationfromaconfidential informant
Special Agent Toni Graham A m y CID discussed the confidential informant who provided them with infomation noting that he was in direct contact with the FBI
Special Agent Toni Graham Amy CID primary duties were to protect collect and preserve digital device evidence
Special Ag^nt^rii Graham Amy CID said tiie information that Collateral Murderwasolassiffed (it wasn't) had come by way of tiie confidential infoman^
Special Agent Toni Graham Amy CID signed 5/29/10affidavit that stated Manning had releasedT-SCIF information and cables onto the IntemeL She admitted that much 0
based on information from commanders at FLBelvofrwho had received intelligence fromaconfidential informant
Special Agent Toni Graham Amy CID testified that she'd received authorization to seize and search the devices via her commander as well as with consent from Staff Sergeant Pe
and also tiirough fomal search authorization granted to her
Special Agent Toni Graham Amy CID was serving onabattalion in Baghdad on 27 May 2010when she received instructions from her headquarters based on information from an unnamed
confidential infomant
Special Agent Toni Graham Army CID was the first lead agent on the case
SpecialAgentTroyBettencourtArmyCriminal Investigation Command (CID)
Special AgentTroy Bettencourt Amy Criminal Investigation Command (CID) says on "20th of August the entire document 250000 US State Department un-redacted cables were publi^^
Internet"
Special AgentTroyBettencourtAmy Criminal Investigation Command (CID) testified that he interviewed 10 people including Bradley Manning's Chain of Comma
SpecialAgentTroyBettencourtAmyCriminal Investigation Command (CID) testified that Pfc. Manning was not tied toaknown terrorist group
Special AgentTroyBettencourtAmy Criminal Investigation Command (CID) that concerning the "value ofinformation" Wkileaks has dissension within their ranks: "Mr ^
demandedthattheysignan NDA saying they would not disclose...to WkiLeaks They said somewhere between 12and15million.The valuation of info^^
they have]"
Special AgentTroyBettencourtArmy Criminal Investigation Command (CID) was on the investigation's intmsion team
Special Agent Wlbur Army Computer Crimes Investigation Command (CCIU) who analyze the path to Garani
Special Court Martial Convening Authorify (SCMCA)
Specialist Eric Baker 62nd Military Police Detachment Amy Criminal Investigation Command (CID) Manning's roomate at FOB Hammer Containerized Housing Unit (CHU)
Specialist Eric Baker62nd Military Police DetachmentArmy Criminal Investigation Command (CID) Manning's roomateat FOB Hammer Containerized Housing Unit (CHU)admit^^
soldier wanted to haveaCD with music or photos of your family and friends in theT-SCIF tiiey could have

^peciaiist^il^rleal^^l^o^man
specialist Jihrieah Showman deployed to Iraq with Bradley Manning when tiiey leff Fort Dmm N^ on 11 Oct 2009
Specialist Jihrleah Showman said that Bradley Manning received two separate TD^'s [Temporary Dufy Assignment] classified under SECRET at Fort Drum and Washingt^^
Specialist Jihrleah Showman said that Bradley Manning wasaShiaanalysL Showman said that any information traffic that came in was disseminated to the Shia analysts who
infomation using the DSGS [pronounced "desigs" Distributed Common Ground System] machines Analysts would create presentations for officers to give to the Brigade Commander.Anal^^^
couldsearchbykeywordandthesystemhadtargetingfolder^forspecificindividuals Analyst would input individual names incidents and specific dates Analysts in theT-SCIF
HUMINT [Human Intelligence] reports and gather pertinent information According to Showman analysts had''targeting packets" on every Shia and Sunni individual that came across an ana
deskswhichstoredwas on theT-SCIF shared drive
SpecialistJihrieahShovi^antestifiedaboutaMay72010incidentbetween8:00p.m

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and 10:00 p.m around shiff change in the conference room of theT-SCIF where she said she saw Bra^^^

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34941
Manning curiedintoaball on the fioorin the fetal position.Showman testified that she reported the incident to CW4[ChiefWarrant Officer 4] Airsman and told Airsman "Be readyf
happen again."Showman testified affer seeing the incident she leff theT-SCIF because it was the end of her wori^ day. Showman testified that on May82010 at around 12:00 a.m.or1:00 a.m
Showman was awoken and called back to theT-SCIF Captain Casey Martin (married name Fulton)testified that she called Specialist Jihrleah Showman back to theT-SCIF.Showma
that she was allegedly assaulted by Bradley Manning. Showman testified that affer Bradley Manning allegedly assaulted her Showman pinned Manning to the ground. Showman tes^^^^
she pinned Manning to the ground Manning said''I'm tired of this."Showman testified that Manning also said that he was scared Behavioral health would find out about him and that ift^^^
out they would remove him from the Army
SpecialistJihrieah Showman testified about another alleged incidentwith Bradley Manning andaLieutenant where the Lieutenant asked Bradley Manning to free
unresponsive. Showman testified that she asked Manning of something was wrong and he did not speak. Showman testified that she reported tiie incident to Master Sergeant Paul David Adkins
(now Sergeantlst Class due to administrative action)and that she and Master Sergeant Paul David Adkins (now Sergeant 1st Class due to administrative action)sat down with Bradl^^
to talk to him. Showman testified that during that conversation Bradley Manning told her and Adkins that he felt paranoid and that Manning felt that people were listening in on his CO
Showman testified that she asked Bradley Manning if he wanted to harm himself and Manning said he was not suicidal but he felt paranoid because people were listening to him and watching
every move. Showman testified that she asked Bradley Manning if he heard voices in his head and Bradley Manning told Showman that he did noL Showman testified that based on this
conversationshefeltthatBradleyManninghadahigh level of paranoia
Specialist Jihrleah Showman testified tiiat Bradley Manning leff the Brigade T-SCIF the moming of May92010affer Bradley Manning allegedly assaulted Showman on May7201^
says that Bradley Manning "punched me in the face unprovoked"
Specialist Jihrleah Showman testified tiiat Master Sergeant Paul David Adkins(now Sergeant 1st Class due to administrative action)did not exercise control over tiie soldiers i
Specialist Jihrleah Showman testified that she reported to CW2 [Chief Wamant Officer Two] Hondo Hack but that the only person that Showman had access to was Master Sergeant Paul David
Adkins (now Sergeantlst Class due to administrative action)and that counseling for Showman was not available.Showman testified that she stopped fighting for counseling and that shew
only counseled once Showman testified that she wasawitness to the December 2009 incident with Bradley Manning and Sergeant (former Specialist) Daniel PadgetL Showman testified that h^^
desk was outside the entrance to the T-SCIF conference room Showman testified that she heard Manning scream and she got up and went to the door of the conference room. Showman
testified that she saw Manning sitting on one side of the table and Sergeant (formerSpecialist) Daniel Padgett was sitting on tiie other side.Showman testified tiiat she saw Bradl^^
allegedly fiip the conference room table and that she sawacomputer get broken Shovvman testified that she saw Sergeant (fomer Specialist) Daniel Padgett stand up and move toward
table. Showman testified that she saw Sergeant (former Specialist) Daniel Padgett put his hand out and try to talk Manning down Showman testified that she saw Manning alle^^
and see an M4 US Army assault rifie Showman testified that she saw Manning allegedly reach for tiie M4. Showman testified that she saw [see note] grab Bradley Manning from be
Manning away. [NBTfiereisadiscrepancy between my own Reitman's and the anonymous transcriber account as to who grabbed Manning during the alleged December 2009 incident witii
Sergeant (former Specialist) Daniel PadgetL According to my transcript of Captain Steven Lim's testimony and Reitman's transcript of Showman Chief Warrant Officer Four (CW4)Airsman(^^^
grabbed Manning But this transcriber says that Sergeant (former Specialist) Daniel Padgett grabbed Manning.] [See note] dragged Manningacouple of feet and then Manning saLS^^
testified that Manning did not receive an Article15[Non-Judicial Punishment] Showman testified tiiat she spoke to Master Sergeant Paul David Adkins(now Sergeant 1st Class due
adminisfrative action)about the incident and told Adkins that Manning should no longer be in theT-SCIF.Showman testified that Manning was not removed.Showman testified that the December
2009 incident with Sergeant (former Specialist) Daniel Padgett should not have just remained in the S2 shop. Showman testified that the First Sergeant [WHO IS THIS?] did eventually
because Showman's commanding officer CW2[ChiefWar^ant Officer Two] Hondo Hack told the First SergeanL Showman testified that Master Sergeant Paul David Adkins(now Sergeantlst
Class due to administrative action)did not report the incident to the First SergeanL Showman testified that she escorted Bradley Manning to meet with the First Sergeant and that she told tiie
First Sergeant that Manning should have never deployed and that this was not the first time and that she was not surprised about the incident
Specialist Jihrleah Shovi^an testified that Master Sergeant Paul David Adkins(now Sergeantlst Class due to administrative action)was the NCOIC [Non Commissioned O^
so it was his prerogative to chose to chose who worked on the day and night shiffs
Specialist Jihrleah Showman testified that she barely saw Major Clausen in the S2 section and that he stayed mostly in his office
Specialist Jihrleah Shovvman testified that she believes that soldier and leaders havearesponsibilify to report maffers of concem security and DEROGs Showman tes
DEROG someone the Commander needs to placearecommendation and indicate what actions lead to the derogatory detemination.Showman testified that the Commander checksabox
indicating whether an individual can retain their security clearance of whether their clearance should be rescinded or terminated so the Brigade can deliver it to the Division
Specialist Jihrleah Showman testified that she confronted Bradley Manning when he first came to the unit that because she said he wasn't completing tasks. Showman testified that Bradl^^
Manning told her that the reason he wasn't getting task complete was because of his paranoia of others. Showman testified that Master Sergeant Paul David Adkins (now Sergeant 1st Class
to adminisfrative action)told her that he reported the incident to someone.Showman testified that she recommended to Master Sergeant Paul David Adkins(now Sergeant 1st Class d
administrative action)acommand-directed referral [in order to hear from health services on what would be discussed with Manning during counseling sessions
Specialist Jihrleah Showman testified that she was the acting Securify Manager in theT-SCIF and that First Lieutenant Elizabeth Fields was the Security Manager before her
Specialist Jihrleah Showman testified that when she saw Bradley Maning's name on the deployment list she was furious. When she went to Master Sergeant Paul David Adkins (n
1st Class due to adminisfrative action)about his name being on the deployment list Adkins told her that Manning would be deployed and Showman would have to deal with it
Specialist Jihrleah Showman was playing Jul 2007 Baghdad Apache airstrike (known later as Collateral Murder) on her wori^station before April 2010when it wasp
Specialist Jihrleah Showman worked with Bradley Manning in the 2nd BrigadeT-SCIF at FOB Hammer Iraq which functioned asafusioncelL Showman was in the same unit and Bradley
Manning's team leader specifically she was Bradley Manning's supervisorfor the first two months of deployment on the night shiff Specialist Jihrieah Showman wo^^
deployment with Bradley Manning on the night shiff then Showman was switched to day shiff. Then Manning was moved to day shift with her
Specialist Sadler(sp.)
SPECIFICATIONI(II): In that Private First Class Bradley E.Manning U.S.Army did at or nearContingency Operating Station Hammer Iraq between on or aboutlNovember 2^^^
about 27 May 2010wrongfully and wantonly cause to be published on the intemet intelligence belonging to the United States govemment having knowledge that intel^^^
intemet is accessible to the enemy such conduct being prejudicial to good order and discipline in the armed forces and being ofanature to bring discredit upon the amed forces
SPECIFICATIONI(III): In that Private First Class Bradley E.Manning US Army did at or near Contingency Operating Station Hammer Iraq between on or aboutlNovember 20
about8March2010violatealawfi^l general regulation to wit: paragraph 4-5(a)(4)Amy Regulation 25-2 dated 24 October 2007 by attempting to bypass network or infomatio
mechanisms

S^^CIFICATICI^^C(l^)^^ntl^at^rivat^ First Class ^ra^l^y^.l^annin^ US Army ^ i ^ at or n^arConti^^
^^tw^^nonDra^DUt^^A^ril2C^Can^Dnora^Dut2^IVIay20^Cl^avin^unautlTori^^dpDss^ssiDnofi^^^
i^^f^ns^towit^ mor^tl^anfiv^classifi^di^^cor^sr^latin^ toamilitary op^rat^
2CC^witl^r^asDnto^^li^v^sucl^informationcDu^^^^us^^tDtl^^in^uryoft^^Unit^^Stat^sDrtDt^^
communicat^d^liv^rtransmitorcaus^to^^communicat^dt^^liv^r^d or transmitt^^t^^sai^ information toap^rso
in violation o f ^ S U S C o d ^ Section ^^3(^)sucl^ conduct ^^in^ prejudicial to ^ood 01^^^^
nature to ^rin^ discredit upon t^^ armedforces
SP^CiFiCATIO^^^(li)^ In tl'^at Private Fir^t Class Bradley ^. banning US Army did at or near Contingency Operating Station 1^^
at^out^^oveml^er 2009 and on or at^out^^anuary20^0lTaving unautiiorized posse55ion of information relating to t^enat^^^
named^^8^22PA^^ip^^containingavideonamed^^^F22 PA^wmv^^witl^ reason to Ibelieve suc^ information cou^
States or to tl^e advantage of any foreign nation wiiifuily communicate de^ivertransmit or cause to t^e communicated delivered or transmitted t^^
information toaperson not entitled to receive it in violation ot^3US Code Section ^93(e)suc^ conduct ^eing prejudicial to good order and di
armed forces and l^eing ofanature to luring discredit upon tl^e armed forces
Specification 11 of Charge ll on thelMarch 2011 charge sheet does not identify the file "BE22PAX.zip" containingavideo named "BE22PAX.wmv" as classified
SPECIF1CATI0N12(1I): In that Private First Class Bradley E.Manning US Army did at or nearContingency Operating Station Hammer Iraq between on or about 28 March 2010ando^
4May2010steal purloin or knowingly convert to his use orthe use of anotherarecordorthing of value of the United States or ofadepartment or agency thereofto wiL the Department of State
Net-Centric Diplomacy database containing more than 250000 records belonging to the United States govemment ofavalue of more than ^1000 in violation of18US Code Section
conduct being prejudicial to good order and discipline in the armed forces and being ofanature to bring discredit upon the amed forces

S^5CII^IO/^TI0^13(ll):lntl^atr^rivat^l^irstOlass8radl^^5l^annin^USArni^did
l-lanin^^rlrac]b^tw^^nonoraboi^t^^l^arcb20^0andonorabout^^l^a^^010l"iavin^l^nowinc]l^^xc^^d^daotbori
onaS^or^tlnt^rn^t protocol 1^otjt^rl^^tworl^oon"iptitor and b^n"i^ans or SL^clicondL^oti"iavin^ obtained inrorn"iation that b^

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d ^ t ^ n n i n ^ d b ^ t b ^ t ^ n i t ^ d states ^ov^rnn"i^ntpt.^rsoant to an ^ x ^ c t i t i v ^ O r d ^ r or stati^t^ to r^^oir^^rot^otion against on^
disclosure for reasons or national d ^ r ^ n s ^ o r ^ o r ^ i ^ n relations to wit: moro tbans^v^nt^^fiv^ classified 1.1nit^d States O^partn^^nt
or Stato cables willfully oon^niunioat^d^iiv^rtransmit or caus^ to b ^ o o r n n i u n i c a t o d d ^ l i v ^ r ^ d o r t r a n s n i i t t ^ d t b ^ said in^orrnation
t o a p e r s o n not ^ntitl^d to r^o^iv^ it witb reason to boli^v^ tbat sucb information so obtained could b o u s e d to t b ^ i n ^ u r ^ o t t b ^
^ n i t ^ d States o r t o t b ^ a d v a n t a ^ o of a n ^ f o r ^ i ^ n nation in violation o f l ^ U S C o d o Section 1030(a)(^)sucb conduct boin^
projudioial to ^ o o d o r d o r and disciplino in t b ^ a r m o d forces and b o i n ^ o t a n a t u r o to brin^discrodit upon tbo armedforces
SP^CI^IC^'TIOI^ 14(11): Iri tliat Private ^Irst Class 8rai^le^^.l^anning US ^rm^i^i^ at
between oner about'I^Pebruar^^O'lOand oner about'I^Pebruar^^O'lObavingl^nowingl^ exceeded autliorl^ed access onaSecret
Internet Protocol l^outerl^etworl^ computer an^b^rrieans of sucb coni^uctliavingol^tainedinforrriation tbat bas been dete^^^
United States government pursuant to an executive Ort^er or statute to require protection against unauthorised disclosure for reasons of
national defense or foreign relations to wit:aclassified Oepartment of State cable titled''l^e^l^iavil^-'i:^^^ willfully communicate del^^^
or cau5e to be communicated delivered or transmitted tfie said information toaperson not entitled to receive it witli reason to believe tbat
sucb information so obtained could be used to tbe injure of tfie United States or to tfie advantage of an^ foreign nation in violation of18US
Code Section10:^0(a)(1)sucb conduct being prejudicial to good order and discipline in tbe arfned forces and being ofanature to bring
discredit upon tbe armed forces
5P^CIFICATIOI^15(ll)-Inthat Private First Cl^ss Bradley ^.^^nning US Army did at or h^ar Contingency Operating
about15Pebruary^010and on or about15l^aroh^010having unauthorised possession of information relati^^
reoord^roduoed ByaUnited 5tafes Arniy intelligence organisation datedt^l^aroh ^00^ with reason to believe suo
of the United States or to the adyantage of any foreign nation willfully oonimunioate deliver transriiit or cause to be ooriimunioated delivered or transriiitted
the said information toaperson not entitled to receive It in violation o f l ^ U S Code Section ^^:3(e)suohoonduotl:^ein^ prejudicial lo good order and
discipline in the armed forces and being ofanature to brin^ discredit upon the armed forces
Sl^^Cll^lCAriC^ 1^(11)^ Inthat private Ifirst Class Bradley ^. Manning us Anny did at or nearContingency Operating station H^
punoln or knowingly convert to his use or the useof anotherarecord or thirig of value ofthe United states or ofadepartirient or agency thereof to wit^^^
Exchange SenBergloOal address list l^elonging to the United States govemrrientofavalue of more than ^1000 in violation ofl^US Code Section ^^1 such conduct be^
anned forces and being ofanature to taring discredit upon the amiedlorces
SP^CIFICATIOI^^(II): In that Private First Class Bradley ^.l^anning U.S.Army did at or near Contingency Operating Station Flammerlrai^ between on or
about15Pebruary^010and on or about5April ^(^11^ having unauthorised possession of information relating to the national defense to wit-avideo file
named''1^.1Ut.0^C^^I^OAO^IVI^I^T ^ 0 1 ^ ^ : 3 0 ^ 0 Anyone.avi" with reason to believe such information oould l:^e used to the injury of the United Stated
orto theadvantageofanyforeignnationwillfullycommunicatedelivertransmitorcause to becommunicated delivered ortransmittedthesaid information
toaperson not entitled to receive it in violation o f l ^ U . S . C o d e Section ^^:^(e)such conduct being prejudicial to good order and discipline in the armed
forcesandbeingofanature to bring disoredituponthearmedforces
Sr^ECiriCATlCN^(lll)-In that private f^irst Class Sradley E.Manning us ^rmy did at or near Contingency Operating station t^aniiner Iraq t^etwe^
alawful general regulation to wit.paragraph^5^a)(^)Annyl^egulatlon ^5-^ dated ^^Cctotier 200^ hy adding unauthorised software toaSeoret Intemet ^ro^
SP^CIFICATIOf^^(ll): In that Private First Class Oradley^.banning U.S.Army did at or near Contingency Operating Station Flammerlrai^ between on or
about
Inarch ^OlOand on or about
Inarch ^OlOhavin^ unauthorised possession of information relating to the national defense to wit: more than one
classified memorandum produced byaUnited States government intelligence agency with reason to believe such information could be used to the injury of
the United States or to the advantage of any foreign nation willfully communicate deliver transmit or cause to be communioated delivered or transmitted the
said information toaperson not entitled to receive it in violation o f l ^ U . S . C o d e Section ^^^(e)suoh conduct being prejudicial to good order and discipline
in the armed forces and being ofanature to bring discredit upon the armed forces
Sr'ECiriCArii^l^3(lll) In that f^nvatef^irst Class SradleyE^anning us Anny did at or nearContingency Operating station Hamr^erl^
^5(a)(3)Annyl^egulation 2^2 dated 2^ Octotier 200^ by adding unauthorised software toaSecretlntemetl^mtocol Router l^etwori^coniputer
SP^CIFICAT101^4(I1)'Iri that Private First Class Bradley ^.ManningU.S. Army did at or near Contingency Operating Station Hammer Irag between on or about ^1
December 2009 and on or aboutaJanuary 2010 steal purloin or knowingly convert to his use or the use of anotherarecordorthing of value of the United States or ofa
department or agency thereof to wit'the Combined Information Data Network ^^changelrai^ database containing more than :3^0000 records belonging to the United States
govemment ofavalue of more than^tOOO in violation ofl^U.S Code Section ^41 such conduct being prejudicial to good order and discipline in the armed forces and
beingofanaturetobringdiscredituponthearmedforces
SPEC1F1CAT10N4(I11)-In that Private First Class BradleyE Manning us Army did at or nearContingency Operating Station Hammer Iraq between on or aboutllMay 2010 and on or about 2^
May 2010violatealawful general regulation to wit^ paragraph 4-S(a)(3) Army Regulation 25-2 dated 24 October 200^ by using an information system inamanner other than its intended purpose
SP^CIPICATIOI^5(ll)'In that Private First Class ^ r a d l e y ^ ^ a n n i n g U.S.Anny did at or near Contingency Operating Station l^ammerlrac^ between on or
about :^1 Oecember ^00^ and on or about^Pebruar^^O'lOhayin^unaulfiori^ed possession of information relating to the national defense to wit: more
than twenty classified records from the Combined Information Oata l^etworl^^^changelra^ database with reason to believe such information could be used
to the injury of the United States or to the advantage of any foreign nation willfully communicate deliver transmit or cause to be communicated delivered or
transmitted the said information toaperson not entitled to receive it in violation o f l ^ U . S . C o d e Section'^^:3(e)such conduct being prejudicial to good
order and discipline in the armed forces and being ofanature to bring discredit upon the armed forces
S^ECIFICATI0N6(ll)^ In that Frivate First Class Bradley E.lVlanning U.S.Army did at or near Contingency Operating Station Hammer Iraq tietween on or about 31 December 200g and on or aboutl
January 2010stealpurioiri or knowingly convert to his use or the use of anotherarecordorthing of value of the United states or ofadepartment or agency thereof to witi the Combined Information Data
Networi^ Exchange Afghanistan database containing more than gOOOO records belonging to the United States govemment ofavalue of more than^lOOO in Violation of18U.S.Code Section 641 such
conduct being pretudicial to good order and discipline in the armed forces and heing ofanature to bring discredit upon the armed forces
SP^CIFICATION^(II): In that Private First Class Bradley ^.banning U.S.Army did at or near Contingency Operating Station Hammer Irac^ between on or
about :31 Oecember ^00^ and on or about^February^OIOhaving unauthorised possession of information relating to the national defense to wit:more
than twenty classified records from the Combined Information Oata l^etworl^^^ohange Afghanistan database with reason to believe such information could
be used to the injure of the United States or to the advantage of any foreign nation willfully communicate deliver transmit or-cause to be communicated
deliveredortransmittedthesaidinformationtoaperson not entitied to receive i t i n v i o l a t i o n o f 1 5 U S C o d e Section ^^:^(e)suchconductbeing prejudicial
togoodorderand discipline inthearmedforcesand being ofanature to bring discredituponthe armedforces
SP^CIFICATION^(II)'In that Private First Class Bradley ^.Manning U.S.Army did at or near Contingency Operating Station Hammer Irag on or about^March 2010 steal
purioin or knowingly convert to his use orthe use of anotherarecordorthing of value ofthe United States or ofadepartment or agency thereofto wit'aUnited States
Southem Command database containing more tiian ^00 records belonging to the United States govemment ofavalue of more than^lOOO in violation of12U.S.Code
Section ^41 such conduct being prejudicial to good order and discipline in the armed forces and being ofanature to bring discredit upon the armed forces.
SP^CIFICATIOI^^(ll).ln that Private First Class ^ r a d l e y ^ l ^ a n n i n g U.S.Army did at or near Contingency Operating Station Hammer Ira^ between on or
about^l^arch^OIOand on or about ^ ^ ^ a y ^ O I O h a v i n g unauthorised possession of information relating to the national defense to wit: more than three
classified records fromaUnited States Southern Command database with reason to believe such information could be used to the injury of the United

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States or to the advantage of any foreign nation willfully communicate delivertransmit or cause to be communicated delivered ortransmitted the said
information toaperson not entitled to receive it in violation ofl^U.S.Code Section ^^:3(e)such conduct being prejudicial togoodorderand discipline in
the armed forces and being ofanature to bring discredit upon the armed forces
SPEEDY TRIAL 84S days of pretrial confinement dwarfs the periods of pretrial confinement in any reported military case
SPEEDYTRlALAt the 23 February 2012Arraignment Coombs (Defense)stated that defense would object toatrial schedule after June 2012and thatthe Government suggested August3 2012.
Coombs states that that his client has been in pretrial corifinement for 635 days and how many days Manning will have been in confinement if the proceeding were to occur in August 2012. Fein
responded that the suggestion was "realistic trial scheduling"
SpeedyTrial BarkervWirigo Prejudice should be assessed iri the light ofthe interests of deferidarits which the speedy trial rightwas designed to protect, (i) to prevent oppressive pretrial
incaroeratioh(ii) to minimise anxiety and concem ofthe accused and (iii) to limit the possibilitytiiat the defense will be impaired.The most serious is the last because the inability o
adequately to prepare his case skews the faimess of the entire system
SPEEDYTRIAL Defense has found no reported military case ihvolvihgaperiod of delay even close to the 845delay in this case
SPEEDYTRIAL Even just one ortwo of those periods was improperly e^cluded(and the Defense maintains thatall challenged periods were improperly excluded)
SPEEDYTRIAL RCM ^0^(a)setsfortha120-day speedy trial clockThe coristitutional right to speedytrial isafuridamerital right ofamilitary accused protected by both the SixthAmendmenf and
ArticlelO
Speedy Trial Taken togetherthe 43 days from 30 May 2010to 11 July 2010the6days from 16 December 2011 to 23 December 2011 and the 52 days from3January2012to 23 February 2012
add up to 103 days. Therefore the Government cannot dispute that103 days count against the 120-day speedy trial clock of RCM :ro^(a) ..Of the 632 days from the day after PFC Manning was
placed into pretrial confinement up to and including the date PFC Manning was amaigned 532 days have been excluded bythe Convening Authority arid the Article 32 lO.This Motion does not
challenge 205 days of those excluded days. Subtracting those 205 unchallenged days from the 635 total days the Convening Authority arid the Article 32 10 excluded 32^ days ofthe 430
remaining days. Those exclusions amount toatotal of over ?6^B^ of the 430 days. In practical ten^s the Convening Authority arid the Article 32 10 has excluded from the R.C.M. ?0? speedy trial
clock over^6'^Bo
S^Hfile log in the home folder of Bradley Manning's MacBook Pro
Staff Sergeant Peter Bigelow Supply Room
supplement to the Case Management Orderthat it requires 45-60 days to coordinate and determine ifthe Govemment will claim privilege overthese items under RCM 505
Surveillance
Swom Statement Master Sergeant BriariPaki(sp.)was tumed over by the Government in response to the Oefense Motion to Compel Discovery f^o.lMarch 2012
T-SClF had no Standard Operating Procedures and was not accredited
Terrorist Screening Center (TSC)
That the decision to place me on Suicide Risk on 16January 2011 was improper (CW4 James Averhart Former Ouantico Brig Commander)
The 5/2g/10 affidavit also specifically mentioned an article in theStars and stripes military publicatiOricalled"A Wiki foraWorid of Secrets"
The AnmyCrimiriallrivestigativeCommarid (CID) requested that the eviderice be preserved in September 2010the Defense also filedapreservation request in September 2011.The Oefense
has recently leamed that that Govemment believes that most or all of the drives are not operational or have been wiped clean
The Convening Authority had lorigbeeriamere rubber stamp forthe Government's many delay requests
The Court Ordered the Government to immediately cause an inspection ofthe 14hard drives forthe presericeofWgetmlRC Google Earth movies games music arid ariy other specifically
requested program from the Oefense
The Court ruled on 23 March 2010thatacomplete search ofthe hard-dnves was not material to the preparation of the defense for the charged specifications.Howeverthe Court directed the
Govemmenttosearcheachofthe14harddrives[for]Wget
the current Deputy/^sistant SecretaryofState for the Bureau of Intelligence and Research at Department of State (State Department) (DoS)
the current Deputy Assistant Secretary of State for the Bureau of Intelligence and Research at Department of State (State Department) (DoS)became aware that Oflice of the National Counter
Intelligence Executive (ONCIX) intended toadamage damage assessment in eariy 2011 assessment sometimes in early 2011
The Defense again specifically requested any investigative summaries damage assessments orOrlginal Classification Authority (OCA) detenninations conducted by the United States Anny (US
Army Criminal Investigation Command) (CID) Department of Defense (DoD) Department of Justice (DoJ) National Security Agency (NSA) Defense Intelligence Agency (DIA) Department of
Homeland Security Office of Intelligence and Analysis (DHS/I^) Federal Bureau of Investigation (FBI) and the Bureau of Diplomatic Security (ODS)attheDepartmerit of State (State
Department) (Do5)
The Defense filedamotion to compel with respect to the12g4 emails thatthe Govemment did not disclose. AtthatpointtheGovemment"voluntarily" tumed over approximately 600 more emails
that were apparently material to the preparatiori of the defense with no explanation as to why these were not produced eariier.The Court theri reviewed the remairiing 600 or so emails and
determined that all but ti^elve were material to the preparation of the defense. Of course
The Defense had barely received basic discovery (itwasn't until 2? July 2011 that the Oefense started to receive the bulk ofthe unclassified ClDfile and it was not until4November of 2011 the
month prior to t h e / ^ c l e 32 hearing that the Defense received any of the classified discovery) PFC Manning was languishing inaBrig under oppressive conditions. And what was the
Govemment doing? No one knows. More detailed instances ofalack of diligence and unjustified delay are discussed below
The Defense had requested thatthese witnesses be present at the Article 32 requested from both theSPCMCA and GCMCA to depose the relevant OCA witnesses and requested contact
ihformation forthe relevant OCAs
The Oefense Is amenable to having the Govemment pertormameaningful search of the computers for the requested information
The Defense requested thatthe Govemment disclose items seized by the DOJ and other agencies pursuant to 16USC2?03(d)
The Defense requests all forensic results and investigative reports by any of the cooperating agencies in this investigation (Department of State (State Oepartment) (DoS) Federal Bureau of
Investigation (FBI) Office ofthe National Counteriritelligenoe(ONClX) Executive (ONCIX) Defense Intelligence Agency (OIA) and the Central Intelligence Agency (CIA)(GovernmentAgenoy)^
The Defense should be permitted to argue that by virtue of his expertise and training Pl^C Manning knew which documents and information oould be used to the injury of the United States orto
the advantage of anyforeign nation.PFC Manning had access toagreat deal of very sensitive infonnation that if disclosed could have caused damage to the United states.By selecting the
infonnation that he allegedly did PFC Manning deliberately chose infonmation that could not cause damage to the United States The reasonableness of his belief that the information oould not
cause damage is buttressed by the damage assessments which say that the leaks did not cause damage to the United States
The Defense submits thatan expansive reading of"indirectly" as applied in this case renders Article 104 unconstitutionally vague in violation of the Oue Process Clause ofthe Fifth AmendmenL If
Article 104 is interpreted to reach PFC Manning's alleged conduct itwould be constitutionally defective because it would fail to provide suffrcient notice ofwhat conduct is prohibited andwould fail
to provide sufficient guidelines to govern law enforcement
Ifie Defense submits that the damage assessments confirm that PFC Manning did not have "reason to believe" that the infonnation could cause damage to the United States or be used to the
advantage ofaforeign nation.Furtherthe lack of damage from the leaks supports the view that PFC Manning did not actwantonly an element ofthe Article 134 ofiense
The Defense submits that the Government's expansive interpretation of Article 104 renders it substantially over broad in violation ofthe FirstAmendment
The Defense submitted its first discovery request on 2gOctober 2010
The Defense's motion did not contain any classified informationAseparate attachment to the Defense's motion did not contain any classified information Howeverthe Government maintained
that by reading these two separate documents together
The Govemment asked the Investigating Officer LL CoL Paul Alman/a to find each OCA "not reasonably available forthe Article 32 given his position as..."
The Govemment acknowledged that its argument was made at the t^hest of the State Department

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TTie Govemment acknowledges that the FBI and DSS participated inajoint investigation of this case. It also acknowledges that the DOS DOJ Govemment Agency (Central Int^
CIA) and ODNI are closely aligned with the Government in this case
The Government also seeks to preclude the Defense from raising or eliciting any discussion reference or argument related to actual ham from pretrial motions related totiieme^^^
The Defense believes that this would include motions related to discovery or production as well as the current Defense Motion to Dismiss All Charges with Prejudice Cleariy requesti
to order the Defense from referencing actual harm inamotion to compel discovery of the damage assessments for instance is ludicrous
The Govemment argues that if such documents are detennined to be in the possession custody or contn^l of military authorities for the purposes ofRCM701(a)(2) that it specifical^^
producing the following: to DSS files or investigations dealing with Specification12or13of Charge II
The Govemment believed the date it received approval from the FBI to tum overthe impact statementwas on 18 May 2012.Instead ofimmediately alerting the Court and the Defense the
Govemment buried the existence of the FBI impact statement in its 31 May 2012filing which was intended to respond to the Defense's Supplement to the Motion to Compel Discovery No
TheGovemmentbelievesthattiieclassification level of the documents themselves is conclusive(or virtually conclusive)of whether the infomation could cause damage
TheGovernment believes that the classification level of the documents themselves is conclusive or virtually conclusive of whether tiie information could c
infomation may have been classified the government must still be required to prove that it was in fact potentially damaging or usefi.^1 i.e. tiiat the fact of classification is me
conclusive on that issue though it must be conclusive on the question of authority to possess or receive the informationT^is must be so to avoid converting the Espionage Act into the simp^^
Govemment Secrets Act which Congress has refused to enact
The Govemment casually mentions that it "discovered that frie FBI conducted an impact statement
TTie Govemment explained that since there were some wholly in^elevant aspects to the grand jury testimony those portions of the grand jury testimony would not be provided.
TTie Govemment failed to notify the Court on that date of the FBI impact statemenLTfie Government also failed to notify the Court of the FBI impact statement on 20 April 2012whe^
represented what the FBI had it its possession and that''the United States anticipates that the FBI is the only government entity that isacustodian of classified forensic resultsof
files relevant to this case that will seek limited disclosure IAW MRE 505(g)(2)"
TheGovemmentfinallyrespondedinwritingtotheDefense'ssixdiscoveryrequestson 12April 2011 nearly six months affer the first discovery requesLTfiis written re
inadequate merely offering one of the following responses for each of by the Defense discovery requests: the United States has disclosedaportion of the requested material and understands its
continuing obligation to disclose; the United States has disclosed all of the requested material in its possession and understands its continuing obligation disclose; th
authorify to disclose this classified infomation; or the United States will not provide the infomation because the Defense has failed to provide any basis for the request
T^e Government hadasimilar "over the top" response when tiie Defense offeredaredacted copy of the Grand Jury testimony into evidenceThe Govemment complained that the
waiving protected information around and that the information had to be under seal
The Govemment has also represented to tiie Court that it recently "discovered tiiat the FBI conducted an impact statement outside of the FBI law enforcement file for which t
intends to file an ex parte motion under MRE 505(g)(2)"
The Govemment has further clarified that the "enemy" to whom PFC Manning allegedly indirectly gave intelligence is Al-Oaida Al-Qaida in the Arabian Peninsula and an enti
Number 00410660 through 00410664
The Govemment has imposed arbitrary limitations upon the Defense's access to tiie Department of State damage assessmenL In particular the Defense must give the Govemment at 1^^
duty days'notice in order to access the damage assessmenLThis would mean that the eariiest the Defense could have accessed the damage assessment was 25 May 2012(one week ago).
The Govemment also imposed another limitation on the Defense's access: Defense counsel could only access the document in the presence of its securify experts
The Govemment has provided the Defense with 458 files totaling 6905 pages from the Federal Bureau of Investigation (FBI) which [quoting the Government] "ataminimum" contains Brady
material
The Govemment has submitted heavily redacted Federal Bureau of Investigation (FBI) files to the Defense
The Govemment indicated that he had searched forfileswitiiin the Department ofAgriculture
The Govemment is simply wrong in its theory that the use of an unauthorized program to download the infomation converts what would otherwise be authorized access to that information into
"unauthorized access" or "exceeding authorized access"
The Government maintained that it was "unaware" of the existence of any forensic results or investigative files relevant to the case maintained by Department of State (State Department) (DoS)
Federal Bureau of Investigation (FBI) Defense Intelligence Agency (DIA) Office ofthe National Counterintelligence Executive (ONCIX) and Central Inte^^^
Agency) The Court mled that "[tjhese agencies are closely aligned with the Govemment in this case..."
The Govemment periodically sent the Defense purported discovery on compact discs.The discovery provided by the Government was Bates numbered usingasoftware program tiiat provided
for consecutive numbering of each page.The discs provided by the Govemment ranged in size fromafew hundred pages of Bates numbered discovery to discs with well over twenfy thousand
pages of Bates numbered discovery.The Government did not organize the discoverv in anv manner that would indicate how it was responsive to the Defense's specific discovery requests...The
Defense estimates at least 5000 page of the unclassified discovery are duplicates of items previously provided by the Govemment
Tfie Government produce all evidence intended for use in the prosecution case-in-chief at trial obtained from Defense Intelligence Agency (DIA) Defense Infomati^^
CENTCOM SOUTHCOM Federal Bureau of Investigation (FBI) Diplomatic Securify Services (DSS) at the Department of State Department of State (State Department) (DoS)Dep^^
Justice (DoJ) Government Agency Office of frie Director of National Intelligence (ODNI) Office of the National Counterintelligence Executive (ONCIX) and any aggra
to introduce during sentencing from the above named organizations
TheGovemmentresistedpertormingsimplecomputersearchesthatithasagoodfaith basis to believe will yield favorable evidence for the accused
The Govemment responded'PFC Manning knowingly gave intelligence to the enemy by fransmitting certain intelligence specified inaseparate classified document to theenemy
WikiLeaks website'
TTie Govemment seemed to suggest that it would produce all relevant infomation from the grand jury testimonyT^eGovernnient explained that since ther^ were some wholly
to the grand jury testimony
The Govemment sent outamemo on 29 July 2011 to HQDA requesting it to task Principal Officials to search for and preserve any discoverable infomation.Toput the 29 July 2011 da
perspective PFC Manning was placed into pretrial confinement on 29 May 2010.Charges were originally preferred onSJuly 2010.Thus this 29 July 2011 memorandum shows th
Govemment waited over one year affer charges were preferred and PFC Manning was placed into pretrial confinement before even beginning its Brady search of its own files Moreovera17April
2012 HQDA memorandum confirmed that no action had yet been taken on the 29 July 2011 memorandum In otherwords if it wasn't bad enough that the Govemment waited overayear to even
startaBrady search of its own files it didn't even realize that nothing had been done on its request for almost another full yearT^erefore almost two full years affer PFC Manning's a^^
Govemment had not even been able to completeaBrady search of its own files.This fact is disturbing to say the least
The Government stated in oral argument that it would present evidence in addition to the AUP.Appellate Exhibit CXXXIX
The Govemment then cites miscellaneous other reasons why the Court should not allow the Defense to reference the damage assessments under M.R.E 403 the statements are inadmissible
hearsay the documents are classified closed sessions would be required to discuss the contents of the damage assessments
The Govemment went to great pains to ensure that the unswom statements of the OCAs were considered by the Investigating Officer
The Govemment would have us believe that while it knew that ONCIX was compilingadamage assessment starting in October 2010it blindly relied on an oral assertion from some person at
ONCIX in Febmary 2012that "ONCIX has not produced any interim or final damage assessments in this matter"Just to double check apparently the Government called up ONCIXafew weeks
later in March 2012and said something to the effect"Are you sure you don't have anything?" And again some person at ONCIX once again said "ONCIX has not produced any interim or fi^^^
damage assessments in this matters'
The Govemment's argument seems to be that it will suffer great prejudice for the following reason if the Defense references the fact that the leaks did not cause damage the Government would
be forced to rebut that evidence with its own evidence that the leaks did cause damage Since the information would be classified this would beanew f o m of graymailingThe govemment enti
whoown information relatedtoactualhamordamagewouldbeforcedtoapprovetheuseofthisclassifiedinfomationforthesolepurposeofrebuttingthedefense
The Govemment's Article 104 charge that PFC Manning indirectly gave intelligence information to the enemy by publishing it on the internet with the knowledge that it could be acc
enemy fails to stateacognizable offense under Article104 because it does not allege the requisite intent to aid the enemy..TheGovernment has simply used Article134 in an effort to re
inabilify to allege the requisite criminal intent under Article 104
Tfie Government's particulars in response to Specificationlof Charge 11 was that PFC Manning wrongfully and wantonly cause intelligence to be published ontiie1^^^
of documents gathered from the SIPRNET including several databases to the WkiLeaks organization"

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The intent of the interim orderwas to ensure no infomation was published outside of court tiiat included infomation from discovery via protective order information subject to pri
505 and 506 and PII (Personal Identifying lnformation)to protect witness^participant privacy and safefy
ThelnvestigatingOfficerLLCoLPaulAlmanza-bendingoverbackwards-toensurethathecouldconsidersuchstatementsdespitebeingprofferedinaninadm
have an opportunify to depose these Original Classification Authority (OCAs).TheGovernment had the full benefit of having its evidence considered by the Investigating Offi
burdens (i e cross examination)
The letter to ODNI (Office of the Director of National lntelligence)from the Assistant General Counsel of the FederalTrade Commission regarding the "documents that were comp
Department ofState's Net-Centric Diplomacy database" clearly shows thatODNI has conducted some sort ofintemal review ofthe cables
The majority ofthe investigation plan was based on Adrian Lamo ofManning and other documents obtained from Bradley Manning's personnel file
ThemostglaringexampleofanabuseofdiscretioninexcludingaperiodfromtheRCM.707speedytrialclockoccurredon4January2012when LL CoL Paul Almanza Investi^^^
Article 32 Pretiial purported to exclude inaone sentence email the days between 23 l^cember 2011 and3January2012when he did not wori^ on the Article 32 investigation the
aware of no case that contains evenascintilla of support fora"federal holidays and weekends" exclusion ora"time the Govemment didn't work on the case" exclusion under R.C.M.707(
the needless delay in consideration of the Article13motion was as always has been the case occasioned by the Govemment's lack of due diligence
The position of LL Paul Almanza Investigating Officer of denying the defense's evidence request is even more indefensible if one considers that representatives of the various govemmen
agencies that were investigating the case and/or preparing damage reports were seated in the audience every day at PFC Manning's Article 32 hearing
The reason for this unnatural breakdown of these transactions is obvious the division serves no purpose other than to pile on the charges against PFC Manning in order to increase the likelih^
ofasevere sentence if he is convicted
THE SPECIFIC/^TION (I): In that Private First Class BradleyE Manning U.S.Amy did at or near Contingency Operating Station Hammer Iraq beti^een on or aboutlNovember 2009 an
May 2010without proper authority knowingly give intelligence to the enemy through indirect means (UCMJ article 104)
TTie term "knowingly" means that the accused had to intend to give the intelligence to the enemy not that tiie accused knew that by giving it toathird parfy it might eventually
ofthe enemy
the unnamed officer exercising general court-martial jurisdiction over CW4 James Averhart
this case is one of the largest and most complex cases in United States military history
This is supported by the fact that the Investigating Officer LL CoL Paul Almanza was completely "wishy-washy" on whether the OCAs would be required to testify Pirst he determi
before the Article 32 hearing that the OCAs were not reasonably available. At the hearing he then suggested that the OCAs would be compelled to testify (and thus were rea^^^
least telephonically). He then reaffirmed tiiat the OCAs were not reasonably available and that he would consider only their unsworn statements
Thomas Smithacounter intelligence agent
Thomas Wheeler President's Intelligence Advisory Board
three (3)military intelligence investigations
Timothy D.Webster
Tiversa Inc.aFederal Bureau oflnvestigation (FBI) contractor
totheinjuryoftheUnitedStatesortotheadvantageofanyforeign nation
Tommy Vietor the National Security Council spokesman
TbsyGimmage(sp.)amentor who with Jason Allen Milliman field software engineer confractoratF.O.B. Hammer were the only only person assigned to tiie DCGS-A (^^^
Ground Systems)
Tbuhey Requests
Treasury SecretaryTimothyGeithner
Trial Publicity Order
two (2) .CSV files each with 100 cables in then in WndowsTemp in the allocated space on the Alienware 22
Two unknown redacted individuals who witiiessed subsequent reiteration ofthis order by two unknown individuals whose names were redacted
U.S. Army Computer Crimes Investigation Command (CCIU)
Under the Govemment's interpretation no criminal intent is required disclosure of information with the mere knowledge that the infomation disclosed might be accessible to the ene^^
punishable u n d e r s i d e 104
UNIDENTIFIEDBRIGADES6
UNIDENTIFIEDCAPTAINfomercompanycommanderofHeadquartersandHeadquartersCompany(HHC)2ndBrigadeCombatTeam(2BCT)
replacedbyCaptain Matthew W. Freeburg around APRIL OR MA^2010

10th Mountain Division(10 MTN Div.)

UNIDENTIFIEDCAPTAIN IN THES2SECTIONWtnessNo21offrie 2nd Brigade CombatTeamlOth Mountain Division
UNIDENTIFIED FEMALESERGEANT0RSPECIALIST2ND BRIGADE COMBATTEAM 10th MOUNTAIN DIVISION
UNIDENTIFIED FEMALE SPECIALIST (No l )
UNIDENTIFIED FEMALE SPECIALIST (No 2)
UNIDENTIFIED FIRSTSERGEANT of Headquarters and Headquarters Company 2nd Brigade Combat Team 10th Mountain Division who became ISG (First Sergeant)!
UNIDENTIFIED FIRST SERGEANT of Headquarters and Headquarters Company 2nd Brigade Combat Team 10th Mountain Division who became ISG (First Sergeant) in March 2010unti^
October2011
UNIDENTIFIED FIRSTSERGEANT of Headquarters and Headquarters Company 2nd Brigade Combat Team 10th Mountain Division who became ISG (First Sergeant) in March 2010
CHIEF WARRANT OFFICER FOUR (CW4)AIRSfytAN(sp.)recommended take the bolt from PFC Manning's weapon send him to mental health and then get him out ofthe Amy affer Dec^^
2009 incident with Sergeant (fomer Specialist) Daniel Padgett
UNIDENTIFIEDINDIVDUALCaptain Freeburg "sent PFC Manning to an for an evaluation "
UNIDENTIFIED INDIVlDUALjustassumed the position underthe approval oftheS2ElTHER MAJOR CLIFF CLAUSEN OR CAPTAIN STEVEN LIM
UNIDENTIFIED INDIVIDUAL who 1st LIEUTENANT ELI^BETH FIELDS she will testify told her "it was an NCO problem and to stay out ofit" when she t
UNIDENTIFIED INDIVIDUAL who 1st LIEUTENANTELI^BETH FIELDS thoughtwasatembleleaderbecausetheproblems within the unitwereconstant^^
UNIDENTIFIED INDIVIDUAL who hadaconversation with MAJOR CLIFF CLAUSEN about leaving PFC Manning on rear detachment
UNIDENTIFIED INDIVIDUAL whoLTCQL BRIAN KERNS XOdidnotbelieve was notastrong leader [probably MajorCliffClausen]
UNIDENTIFIED INDIVIDUAL who LTCOL BRIAN KERNS XO said command was too generous with and that removing him from his position eariierwould have been advantageous
UNIDENTIFIED INDIVIDUALwhoMajorCliffClausencouldnotprovidewithaccurateortimelyestimatesorintelligence
UNIDENTIFIED INDIVIDUAL who objected to any changes and would not allow anyone to address the issues sun^ounding PFC Manningwhen there wasachange in leadership
and all of tiie officers sat down to discuss soldier standards in an attempt to address substandard conduct
UNIDENTIFIEDINDIVIDUALwhoordered him to takeacomplete look at INFOSEC across the brigade

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UNIDENTIFIED INDIVIDUAL who put out information that Wanant Officers and Noncommissioned Officers were to defer all management responsibilities to to defer all management
responsibilities to Master sergeant now Sergeant First Class Adkins
UNIDENTIFIED INDIVIDUAL who told 1st LlEUTENANTELl^BETH FIELDS said conceming PfcManning "We need thepersonnel"
UNIDENTIFIED INDIVIDUAL who told CHIEFWARRANT OFFICER FOUR (CW4)AlRSMAN(sp)that PFC Manning would deploy due tomanpower issues
UNIDENTIFIED INDIVIDUAL who told MAJOR CLIFF CLAUSEN aboutan outburst by PFC Manning before the deployment
UNlDENTirlED INDIVIDUAL who was in charge of all enlisted responsibilities
UNIDENTIFIED INDIVIDUAL] who told [Captain Freeburg] that PFC Manning's troubles were deeper than the Anny could fi^ and that [Pfo. Manning] should be separated."
UNIDENTIFIED INDIVIDUALS (2) thattold CHIEF WARRANT OFFICER FOUR (CW4)he was not responsiblefor anypersonnelwhoworked in theS2andwho CHIEFWARRANT OFFICER
F0UR(CW4)went back to for clarification on their expectations about his responsibilities regarding enlisted Soldiers and Officers and his non-role in soldier leadership was reinforced on each
occasion
UNIDENTIFIED INDIVIDUALS (2)who an UNIDENTIFIEOCAPTAIN INTHE S2SECT10N Witness No21 vented toaboutabouthownothingwas being done toaddress PFC Manning's mental
and emotional issues
UNIDENTIFIED INDIVIDUALS (2)whodidnotinfonn UNIDENTIFIED KEYLEADER0FTHE2NDBR1GADE COMBATTEAM IOTH MOUNTAIN DIVISION (Art 32 Defense Witness No15)gave
guidance on who would deploy CMS? Deputy Commander? about Pfc Manning's mental health issues
UNIDENTIFIED INDIVIDUALS (2)who LTCOL BRIAN I^ERNSXOthoughtwereweak leaders (probably MasterSergeantnow Sergeant FirstClass Adkins and MajorCliffClausen)
UNIDENTIFIED INDIVIDUALS (2)whotold UNIDENTIFIEOCAPTAIN INTHES2SECT10NWitnessNo21 to stay in his lanewhen he tried to address hisconcerns about PfcManning
UNIDENTIFIED lNDlV10UALS(3)whoCHlEFWARRANTOFFICERFOUR(CW4)AlRSMAN(sp)toldthatPFCMaririingshouldnotdeploy
UNIDENTIFIED INDIVIDUALS (3)who CHIEFWARRANT OFFICER FOUR (CW4)AIRSMAN spoke toabouthis concerns aftertheoutburstinDeoember200g by PFC Manning
UNIDENTIFIED INDIVIDUALS ( 3 ) w h o t o l d a n U N I D E N T l l ^ l E D C A P T A I N IN T H E 5 2 S E C T I O N Witness N o 2 1 to back o f f w h e n U N I D E N T I F I E O C A P T A I N 1 N T H E S 2 S E C T I O N Witness N o 2 1

engaged Soldiers on issues asaleader
UNIDENTIFIED KEYLEAOER OF THE2ND BRIGADE COMBATTEAM IOTH MOUNTAIN DIVISION (Art32 Defense Witness No15) gave guidance on who would deploy CMS? Deputy
Commander?
UNIDENTIFIED KEYLEADER0FTHE2ND BRIGADE COMBATTEAM10TH MOUNTAIN DIVISION (Art 32 Defense Witness No15) providedaswom statementfortheSecretary ofthe
Army's 15-6 investigation into the alleged unauthorised disclosures
UNIDENTIFIED MALE SPECIALIST swom statement contains an account of Manning translatingadocument published by Iraqi detainees about public cori^ption which lead to their amestand
how Manning was very upset
UNIDENTIFIED MALE who was the one thatworked the security ofthe T-SCIF and 1ST LIEUTENANT ELl^BETH FIELDS dealt with security cleararices this UNIDENTIFIED INDIVIDUAL did
not receive anyti^ainingto be the SSR. However
UNIDENTIFIED MENTAL HEALTH PROFESSlONALatBehavioral Health thatCaptainMatthewW.Ereeburgwentto to discuss PFC Manning's condition
UNIDENTIFIED PRE DEPLOYMENT MENTAL HEALTH WHO RECOMMENDEDTHATMANNINGNOTDEPLOY
UN10ENT1F1ED5GM
UNIDENTIFIED SMGS6S2 and 10 personnel who formedaworking group to review Brigade InfoSec
United States Army Counterintelligence Center Cyber CounterintelligericeAssessmerits Branch Department of Defence Intelligence Analysis Program Wikileaksorg.An Online Reference to
Foreign Intelligence Services Insurgents Or Terrorist Groups?
United States Army Counterintelligence CenterCyberCounteriritelligericeAssessmeritsBrarichDepartmerit of Deferiselritelligence Analysis Program's "WiklLeaks.org-An Online Reference to
Foreign Intelligence Ser^ces Insurgents Or Terrorist Group" is classified at SECRET
United States Forces-lragMicrosoftOutlook Share Point ^^changeServerglobal address list (^AL)
United States Marshals (US Marshals)
unnamed "mentors" who performed maintenance on the DCG5-A (Distributed Common Ground Systems)
Unnamed agent(s)from US Army ClDthat took Captain Barclay Keay's swom statement
unnamed agents four (4)as well as Diplomatic security Service (DSS) Departmerit of State (^tateOepartmerit) (DoS) interviewed Brady Manning's Aunt Debra Van Alstyne
Unnamed Army CID Agents who accompanied Special AgentTroy Bettencourt on all but one of his interviews of more than lOunnamed individuals
unnamed Anny Criminal Investigation Commande(CID)agentwho said to CaptainThomas Cherepko when he was concerned about his ability to create forensically sound images "that itwas
OK because the devices hadn't been seized yet and it's already been so long that they are already tainted"
Unnamed Behavioral Specialist Bradley Manning was taken to after 20 Dec 200g incident with sergeant (former specialist) Daniel Padgett
unnamed civilians seven (^) who Agent Mari^ Mander Anny ComputerCrime Irivestigative Unit (CCIU) says testified were discovered doirig"wri^rig doing" and are being investigated by the
Federal Bureau of Investigation (FBI) including in certain aspects the founders owners or managers of WikiLeaks
unnamed commander of Special Agent Toni Graham Army CID who granted her authori^tion to sel^e devices
unnamed Commander responsible for OEROG's in the T-SCIF at FOB Hammer Iraq
unnamed commanders at Fti Belvoir
unnamed Company Commander at Fort Dn^m NY thatwas not notified abouttiie eariy May 200g incident with SpecialistJihrieah Showman and Bradley Manning
unnamed confidential informant
unnamed congressional ofiioial who was briefed by the 5tate Department told Reuters "the administration felt compelled to say publicly that the revelations had seriously damaged American
interests in order to bolster legal efforts to shut down the WikiLeaks website and bring charges against the leakers"
Unnamed ei^ co-workers contacted by Army CCIU lead investigation as forensics became available
Unnamed FirstSergeantwhoSergeant(former Specialist) Daniel Fadgetttestified thathe did nottalkto conoerningthe alleged December 200g Incidentwith Pfc. Manning. Speclall^^
testified thattiie First Sergeant [WHO IS THIS?] did eventuallyfind out because Showman's commanding ofiicerCW2[ChiefWarrantOf^cer Two] Hondo Hack told the First Sergeanti Showman testified
that l^asterSergeant Faul David Adkins(nowSergeant1stClass due to administrative action)did not reportti^eincidentto the First Sergeant. Showman testified that she escorted Bradley IVIanning to
meet with the First Sergeant and tiiat she told the First Sergeant that Manning should have never deployed and that this was not the first time and that she was not surprised about the incident
Unnamed Forensic Examiner referred to bySpecial Agent David Shaver ComputerCrimeslrivestigationCommand(CClU)
Unnamed Govemment Computer Forensic Experts
Unnamed group of soldiers who Captain Casey Martin [married name is Fulton] spoke to in April 2010about Collateral Murder
Unnamed individual Adriari Lamo talked to theri told ti^ourinamedpeople(one ofthe people he told the individual had worked with and the otherwasafriend-both told law enfi^roement-one
was in the anny)
unnamed individual at Department of 5tate(5tate Department) (DoS)said Intelink after initial Army Computer Crimes Investigation Command (CCIU) attempt to get log files
unnamed individual on Special Agent Toni Graham Army CID team withThomas Smithacounter intelligence agent

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unnamed individual who Adrian Lamo contacted Amy Computer Crimes Investigation Command (CCIU) about and said was chatting with someone else
Unnamed individual who collected Bradley Manning's personal at Camp Arifjan in Kuwait
Unnamed individual who defense asked for the complete contact infomation for the individual that completed the Classification Review for the item charged in Specification 15of Charge II^T^
Defense also requestsacopy of the Classification Review for the item charged in Specification 15of Charge II which is the United States Army Counterintelligence Center
Counterintelligence Assessments Branch Department of Defence Intelligence Analysis Program Wkileaks.org-An Online Reference to Foreign Intelligence Se^^^
Groups?
Unnamed individual who reported to David Coombs he was interviewed five or six times
unnamedindividual(s)whomade "eventually" awarethatunnamedsoldierswereputtingunauthorizedsoffwareontheircomputers
Unnamed individuals Captain Steven Lim spoke to in casual conversation about the incident on 20 Dec 2009 with Sergeant (fomer Specialist) Daniel Padgett
Unnamed individuals in Bradley Manning's Chain of Command
Unnamed individuals in the Forensic Unit of Amy Computer Crimes Investigative Unit (CCIU)
unnamed individuals in the hacker communify that Special Agent Antonio Patrick Edwards CCIU testified Adrian Lamo "knew were involved"
Unnamed individuals interviewed who were military confractors
Unnamed individuals that Captain Barclay Keay asked why soldiers were listening to music and watching movies in theT-SCIF
Unnamed instructors at Fort Huachuca including one whose computer Sergeant First Class Brian Madrid's used to view one of three YouTube videos that the same unnamed soldiers had
infomed him that Bradley Manning had allegedly posted in June 2008 while in training there to becomeaFox 35 military intelligence analyst
Unnamed investigating authorities who collected other electronic media other than the hard drives and transferred them sealed to Special Agent Calder Robertson CCIU
unnamed Lieutenant thatSpecialist Jihrieah Showman testified Bradley Manning was unresponsive to when the Lieutenant asked Bradley Manning was asked to freeze
Unnamed members of Bradley Manning's unit at Fort Huachuca from April to August 2008
unnamed military magistrate that authorized search wamant to search Bradley Manning's personals affer he was placed in confinement
unnamed military magistrate who granted Special Agent Toni Graham A m y CIDasearchwan^ant
unnamed military officers who would request intelligence products to give to the Brigade Commander
unnamed Original Classification Authority (OCA) [probably Ambassador Patrick Kennedy Undersecretary for Management at the Department of State (State Department) (DoS) b
laterfiledaTbuhy request for him affer this motion was mled on] infomed the Govemment of "a possibleTbuhy issue"
unnamed Original Classification Authority (OCA) defense learned about after2December 2012
Unnamed people on special Agent Calder Robertson CCIU team who instn.icted Captain Thorrias Cherepko on howto obtain serverk^gs from the
forensic analysis
unnamed person at headquarters who called Special Agent Toni Graham Amy CID
unnamed person whom Master Sergeant Paul David Adkins(now Sergeant 1st Class due to administrative action)reported an incident where Specialist Jihrieah Showman counseled Bradley
Manning about completely his tasks where Showman said Manning allegedly told her that he wasn't getting task complete was because of his paranoia of others
unnamed Quantico watch supervisor on the nightshiffof13March 2011
unnamed redacted forensic psychiatrist at Quantico Brig that said "^ou know Sirlam concemed because if you are going to do that maybe you want to call it something else because it is not
based upon anything from behavioral health" and''Well then don'tsay it is based upon mental health ^ u can say it is Maximum Custody and just don'tput tiiat we [behavioral^
somehow involved in this"
unnamed S2attheT-SCIFatF0B Hammer Iraq
unnamed S2 that MasterSergeant Paul David Adkins (now Sergeantlst Class due to administrative action)infomed about the eariy May 2009 incident with Specialist Jihrleah Sho
Bradley Manning at Fort Dmm N^
Unnamed Signal Intelligence Analysts
unnamed soldier and unnamed tiiree (3) orfour (4) officers vvho were watching Jul 2007 Baghdad Apache airstrike video knovvn in theT-SCIF with Special^^^
leaked and published by WkiLeaks as Collateral Murder
unnamed soldiers in the Supply Room at FOB Hammer Iraq
Unnamed soldiers in theT-SCIF who bought pirated movies from Iraqis and play on their D6 machines
unnamed soldiers in theT-SCIF who Jason Allen Millimanafield software engineer contractor saw had programs installed on their DCGS-A (Distributed Commoner^
Unnamed soldiers in theT-SCIF who would pull music from the shared drive and put it on their D6 Computers
unnamed soldiers in theT-SCIF who would pull music from the shared drive and put it on thefrD6 Computers
Unnamed soldiers who Captain Barclay Keay testified he saw listening to music of watching movies in theTSCIF at FOB hammer
unnamed soldiers who saw Bradley Manning mnning around at night and joked about it
unnamed soldiers who would play games on their D6 Computers
unnamed Special Agent Army Computer Crimes Investigation Command (CCIU) who did analysis of media from Iraq with Special Agent Schaller Amy Computer Crimes Investigation Comma
(CCIU) and Special Agent Johnson Amy Computer Crimes Investigation Command(CCIU)
unnamed Specialist who replaced Specialist Jihrleah Showman as NCOIC of the night-shiff at the T-SCIF at FOB Hammer Iraq
Unnamed supervisors whom CaptainThomas Cherepko notified about unauthorized music and games on the shared SIPRNet T-Drive
unnamed Supply Room clerk at FOB Hammer Iraq
Unnamed two (2) Amy Computer Crime Investigative Unit (CCIU) agents sent to CENTCOM second week of June in Florida where they obtained logfiles related to investigate
airstrike video
unnamedtwo(2) NCO [Noncommissioned Officers] escorted Manning intocustody
USAmylntelligence(G2)
US complicity in torture and public con^uption in Iraq
Vice Admiral Roberts.Hansard Deputy Commander US Central Command CENTCOM the Original Classification Authority for the classification determination and impact on nat^
CIDNE Afghanistan Events [Afghan War Diary] CIDNE Iraq Events [Iraq War Logs] otiier briefings and tiie BE22PAX.wmvvideo [Garani Airstilk
Vice President Joseph Biden
Video of Manning Quantico Interrogation and Stripping on January 18
Waming Banner
War^antOfficerOne(W01)Kyle Balonek

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Westillhaven'theardyetofODNI [Officeofthe Director of National Intelligence] hasadamage assessment

w^^t
where Coombs identified Culky(sp.)asaoivilian]
Whetherthe accused in fact knew orhadareason to believe the charged information could be used to the injury ofthe United States orto the advantage of anyforeign nation is not detennined
bythe OCA
While the Government may preferthat those who come underthe aim of its prosecutorial crosshairs go quietly irito the riight the United States Constitution permitsadefendant to do otherwise a)
Maintaining that Brady does not require the Government to tum over documents that are relevant to punishmentbjMaintaining that R.C.M.?01 does not apply to classified discoverycjDisputing
the relevance offacially relevant items (such as damage assessmentsjd) Using the R.C.M. ^03 standard instead ofthe appropriate R.C.M.?01staridard when dealing with items within tiie
military's possession custody and control ejRefeming to damage assessments and other documents as "alleged"tofn^strate the Defense's access to them f) Maintaining that the Department of
State (State Department) (Do5) and ONCIX had not "completed"adamage assessment g) Maintaining that itwas "unaware" offorensic results and investigative fileshjResisting production of
the Department of State (State Department) (OoS)damage assessment underthe "authority" of Giles V. Maryland 336US 66 11^(ig67') (which provided no legal supportfor its position) 1)
Despite understanding Defense discovery requests defining "damage assessments" and "investigations" to avoid producing discovery. After instructing the Oefense that it should not use the term
"damage assessments" to referto informal reviews of hann (instead to use "wori^ing papers") then referring to working papers as "damage assessments"]) Insisting onathreshold of specificity
for Brady requests that does not e^ist or some additional showing of relevance k) Maintaining that the FBI investigative file was not material to the preparation ofthe defense to which the Court
qui^ically asked "How could the investigative file not be material to the preparatiori of the deferise?" I) Maintaining that anything that predated the Department of State (State Department) (Do5)
Damage assessment was not discoverable because it was "likely" cumulativemjArguing with the Court at length about whether the Govemment was obligated to turn over documents that were
obviously material to the preparation of the defense absenta"speoificrequest"n)Waiting until two days before the Defense's Article 13filing before reviewing 13?4emailsfi^om Ouantico which it
had in its possession for over si^ months
While the OCAs'determinations were at one point in history "worthy of great deference" such is not necessarily the case anymore.The United States has acknowledged that ithasaproblem with
over-classification
who was on the prosecution's origirial witness list dated July^
Why is the Government arbitrarily drawing the line at the grand jury testimony? Why is the grand jurytestimony not in the Government's possession custody and control when the other FBI files
are?
WikiLeaks
Wikileaks and/orthe damage occasioned by the alleged leaks
WikiLeaks MitigationTeam at the Department of State (State Department) (Oo5)
WikiLeaks Most Wanted List
WikiLeaksorgTwItter account

WiklLeaks org Web Archive
Williams
Wiredcom
would "in large part be hearsay evidence aboutwhat other agents have done on the case and whatwitnesses have told these other case agents"
yada.tar.b^.nc made on January 30 2010 at10^22pmin the allocated space of an SD card allegedly obtained at the second search of Debra Van Alstyne Bradley Manning's aunt home afier
having allegedly been shipped from Iraq in October 2010Four(4)files contained in yada.tar.b^2.nc.Theywere^ Screenshot of afg^events.CSV dated^JanuarylO.Govemmentsaid contained
gtOOO individual CIDNE reports for Afghanistan Screenshot ofirq^events.csvdated5January 2010. Govemment said contained 400000 individual reports that are CIDNE reports from Iraq
screenshot of README datedgjanuary 2010. Government said wasatemporaryfile created by Macintosh OS Screenshot of.^README.TXTdatedgjanuary2010Government said the te^t
ofthis document said "This is possibly one ofthe more significant document of ourtime removing the fog of war revealing the true nature of 21st century asymmetric wartare. Haveagood day."
The riote also specifically stated that steps had beeritakeri to sariiti^ecertairiserisitive data and that there should beagotolOO day wait before releasing data to best assess how to distribute
the iriformation and protect the sourceTwo encrypted files [not clear if allocated or unallocated] both of which were unrecoverable and both of which allegedly referenced the word "nathan" in the
titiei.e."nathan2^eventstar
b ^ " Document 1^ Screen shot of[Missed]Manningb^00656? [Missed] that Government asked Shaverto authenticate Document 2^ Email fiom Manning's
Thundert^ird account that Govemment asked Shaverto authenticate Document 3^6April 2010 emailfromMarining'sThundert^ird account that Government asked Shaverto authenticate
Manningb^0040g^66 Document 4^ 10 April 2010 Email from Manning's Thunderbird acoountthatGovemment asked Shaverto authenticate

Ar^l^^^

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UNCLASSIFIED
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

)
)
)
)
)
)
)
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)

Prosecution Objection to
Providing an "Example" Witness
to Examine the Viability of
Reasonable Alternatives to Closure

UNCLASSIFIED

Enclosure 7
3 April 2013

7 -to
APPELLATE EXHIBITIONPAGEREFERENCED:
PAGE oF___rAom

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34950

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Witness | US v Pfc. Manning, Lt. Col. Brian Kerns, Executive Officer
(XO), 2nd Brigade CombatTeam, 10th Mountain Division

I Donate Bftcoins Q

By Alexa O'Brien on December 8, 2011 11:55 AM
us V Pfc. Bradley Manning is being conducted in de facto secrecy This page is a work in progress and may contain errors The page is
developing and may be updated. All updates and amendments will be noted
For more information on the lack of public and press access to United States v. Pfc. Bradley fianning, visit the Center for Constitutional
Rights which filed a petition requesting the Army Court of Criminal Appeals (ACCA) "to order the Judge to grant the public and press access
fo the government's motion papers, the court's own orders, and transcripts of proceedings, none of which have been made public to dale "

Lt. Col. Brian Kems was the Executive Officer (XO) for the 2nd
Brigade Combat Team, 10th Mountain Division, and the second
most senior commanding officer in Pfc. Manning's chain of
command within the 2nd Brigade Combat Team, 10th Mountain
Division.
Lt. Col, Brian Kems, Executive Officer (XO), 2nd Brigade Combat
Team, 10th Mountain Division provided a swom statement for
the Secretary ofthe Army's 15-6 Investigation into the alleged
unauthorized disclosures
The Govemment objected to the defense request for the testimony
of Lt. Col. Brian Kems, Executive Officer (XO), 2nd Brigade Combat Team, 10th Mountain Division at the December
2011 Article 32 Pretrial Hearing, stating his testimony was "not relevant to the Article 32 investigation and will only
serve to distract from the relevant issues." While there is no official public record of Almanza's denial of this
witness' testimony, Lt, Col. Brian Kerns, Executive Officer (XO), 2nd Brigade Combat Team, 10th Mountain Division
did not appear during any open session of the Article 32 Pretrial Hearing, The public record shows that at least
fourteen witnesses were granted to defense for the Article 32 Pretrial Hearing, In Lt, Col, Almanza's mling on the
Defense Request for Article 32 Witnesses, 12 witnesses were granted to the defense, 10 of whom were also
requested by the Govemment, Defense said in open Court on December 16, 2011, that Lt Col, Almanza granted
two additional witnesses to defense that moming.
The defense's account of Lt. Col Brian Kems, Executive Officer (XO), 2nd Brigade Combat Team, 10th Mountain
Division swom statement is contained in Defense Request for Article 32 Witnesses
No. 14 o n t h e December 2, 2011 Defense Request f o r A r t i c l e 32 W i t n e s s e s
^^^^^^B
/ Lt Co/. Brian Kems, Executive Officer (XO), 2nd Brigade Combat Team, 10th Mountain
Division } He will testify that he ^dsHII^HIIH/
Way. Cliff Clausen, Brigade S2 } direct supervisor He
believed that ^^^^^^B
[ Maj. Cliff Clausen, Brigade S2 ] could not pmwdeHH^^H|
[ WHO IS
THIS? ] with accurate or timely estimates or intelligence, and could not talk to ^^^^^^^ffCoL
David M.
Miller, Commander of the lOtli Mountain Division's Second Brigade ] in a way that served the Commander's
[ WHAT IS THIS? ] needs. The brigade commander [Col. David M. Miller, commander of the 10th Mountain
Division s Second Brigade] finally lost confidence in
/ Major Cliff Clausen, Brigade S2 ] and
made the decision after approximately 6 months to move him. He will testify that the unit did not conduct a formal
relief for cause, but moved him to a transition team. According to ^^Hl^HIr
Co/. Brian Kems ].
^/^/l/^/^^aiorCliffClausen,
Brigade S2 ] performance was weak, but not so weak as to warrant a
relief for cause^^^^l^HI/^
Lf. Col. Brian Kems ] did not believe ^^^gg^g^
^ Major Cliff Clausen,
Brigade S2 ] was not a strong leader. He tried to (^centralize operations but didn't have enough oversight to
contnDl. He empowered junior members who were too inexperience to do the job and did not step in to correct
when they made mistakes. He will testify that ^^^H^H^
Maj. Cliff Clausen, Brigade S2 ] was was unable
to mentor or develop younger officers and didn't have much direct contnDl over the shop. He will also testify that
Hl^^^^^ftMay.
Cliff Clausen, Brigade S2] was handicapped by weak NCO [Non-commissioned Officer]
leadership in his shop. Specifically, his NCOIC [Non-commissioned Officer in Charge], then
^^^^^^g
//Miaster Sergeant Paul David Adkins (now Sergeant First Class due to administrative action}] was not an
effective leader In his opinion, both ^ • ^ • B W H O IS THIS?] and HHH^BlA^O
IS THIS?] were
weak leaders. He will testify that he was unaware of any leadership guidance pn^vided in the S2 sections
regarding enlisted personnel management He will testify that it did not surpnse him that HHH^^B/^^O
IS
THIS?] put out information that Warrant Officers and Noncommissioned Officers were to defer all management
responsibilities to ^ I H H H / ' ^ s ' ^ Sergeant Paul David Adidns (now Sergeant First Class due to
administrative action)] He will testify that perhaps the command was too generous with
f///I^^^^^WHO
IS THIS?} and that removing him from his position earlier would have been advantageous. He will testify that he
believes PFC Manning's mental and emotional issues were more than enough to put others at risk and should
have resulted in an immediate DEROG. He will testify that he did not know anything about PFC Mannmg's
conduct until a recommendation for separation was made by the chain of command. He will testify that none of
the mental or emotional health concems, pnor to May of 2010. made it to his level. ^^HB^B/Lt
CoL
Brian Kems] will testify that the failure to properiy DEROG PFC Manning's was the unit's biggest failure. He
believes that the unit should have pulled PFC Manning's access to classified information much eariier He will
testify that the unit should have recognized him as needing help and that his condition made him unfit for service
as an intelligence analyst He wi7/ also testify that the assistant S6 for the brigade, ^^^^^^/^CPT
Thomas
Cherepko] came to him with concems about unauthonzed personal media on SIPRnet machines. According to
Jgggggj^^^CPT
Thomas Cherepko]. personnel were putting unauthonzed media on computers such as
programs, games, videos, and music. gg^^^^gfLf.
Col. Brian Kems] will testify that it was fairly common
when the unit arrived to see games, music and movies on the SIPRNet He believed that it was fairly common
acmss Iraq He will testify that he tried to get the staff to do the right thing, but media on the SIPRNet continued
to be the standan:! He will testify that at no point was UCMJ punishment applied to those who were placing
unauthorized information on SIPRNet He will acknowledge that with respect to the media on the SIPRNet, he
believed that the Anny had become too comfortable working on SIPRNet while deployed. It is his opinion that
this may have bred some complacency because ofthe ease of access. He believes that most Soldiers did not
realize that that placing music and other media on SIPRNet computers was wrong because of how prevalent
those items were across Iraq. He will also testify that after PFC Manning was arrest. HI^^H^B^^C
IS
THIS?] ordered him to take a complete look at INFOSEC across the brigade. He formed a working group
consisting of the SGM [UNIDENTIFIED SERGEANT MAJOR]. S2 [Captain Steven Lim, then Assistant S2 and
Military Intelligence Company Commander], S6 [UNIDENTIFIED S6] and 10 [Information Operations]
[UNIDENTIFIED INFORMATION OPERA TIONS] personnel to look at how the brigade was operating. Based
upon this review, the S6 [UNIDENTIFIED S6] removed universal ability to whte to disks: there was additional
compartmentalizing ofinformation within the BCT based on a need to know; the S6 [UNIDENTIFIED S6]
instructed staff on how to lock out directories and the brigade established an SOP on the implementation for
reviewing infractions for potential DEROG actions.

Other Resources
• Fox, Lt. Colonel Brian Kems, "Iraq Security 'Phenomenally' Improved" (Video)
• Defense Request for Article 32 Witnesses

Alexa O'Brien

carwinb
kennethlipp Email to Attorney Jason
Flores-Williams Regarding the Motion to
Quash Prosecution's Subpoena to
Ctoudflare b i t l y / 1 4 N C l Y Z
7 houn ago reply retweet favortte

carwinb @enquerre Ta.
33 minutes ago reply retweet favorite

enquerre Audio of @]ulianBumside
speaking last night in Adelaide at
#swedjudge event
vimeo.com/63258441 cc @m_cetera
iS>carwinb iPwikiteaks
34 minutes ago reply retweet favorite

carwinb In the end the US cannot give
what it hasn't got,
11 hours ago reply retweet favorite

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34952

380-14

FOR OFFICIAL USE ONLY
PUBLIC AFFAIRS (CCPA)
Information revealing

Classification

Declassification

Reason

Public a f f a i r s
contingency statement

U

N/A

N/A

Remarlcs

1

A-22

FOR OFFICIAL USE ONLY

34953

380-14

FOR OFFICIAL USE ONLY
PROVOST lylARSHAL (JSD)
Classification

Declassification

Reason

Deployment /
redeployment o f
s e c u r i t y augmentation
t r o o p s when combined
w i t h dates and/or
locations

U

N/A

1.4(a) /
1.4(g)

Enemy p r i s o n e r o f war
(EPW) i n f o r m a t i o n t h a t
reveals locations o f
u n i t s o r EPW camps;
u n i t s t r e n g t h and/or
military capabilities;
o r number o f EPWs

S

Upon c o m p l e t i o n
of operation/
hostilities

1.4(a) /
1.4(c) /
1.4(g)

Physical s e c u r i t y
v u l n e r a b i l i t i e s and
vulnerability to
t e r r o r i s t attack

S

Upon c o r r e c t i o n
or a f t e r 5 years
if
uncorrected

1.4(g)

Threat c o n d i t i o n

u

N/A

N/A

Detailed t e r r o r i s t
threat level/condition

C

10 years

1.4(a) /
1.4(g)

General t e r r o r i s t
threat information

u

N/A

N/A

Information

revealing

A-23

FOR OFFICIAL USE ONLY

Remarks
C l a s s i f i e d only
during periods of
increased t h r e a t ;
Included are
numbers o f
personnel, dates,
and l o c a t i o n s .

May be c l a s s i f i e d
h i g h e r upon
d i r e c t i o n o f an OCA
All terrorist
threat information
must c o n t a i n
unclassified tear
l i n e f o r widest
dissemination

34954

380-14

FOROFFICIALUSEONLY
FORCE PROTECTION (^SO) Cont.
Information revealing

Classification

Declassification

Reason

Vulnerability
assessments and trends

S

10 years

1.4(g)

Purchase request
package

U

N/A

N/A

Remarks
May be d e c l a s s i f i e d
upon r e s o l u t i o n of
all vulnerabilities
without a waiver
For O f f i c i a l Use Only

Electronic Sweeps
General information
not revealing any
details

c

10 years

S p e c i f i c information
revealing date range
and area t o be swept

S

10 years

Target area weather
information

s

10 years or
upon plan
execution, i f
executed

1.4(a)

Top secret options;
discussion o f

TS

10 years

1.4(a)

See AFI 71-12 f o r
s t r i c t need^to^know
guidance

A-24

FOROFFICIALUSEONLY

34955

FOR OFFICIAL USE ONLY

Attack the Network - Defeat the Device - Train the Force

SECURITY CLASSIFICATION GUIDE
for

JOINT IMPROVISED EXPLOSIVE DEVICE DEFEAT
ORGANIZATION (JlEDDO)

DISTRIBUTION STATEMENT D: Distribution authorized to the Department of Defense
and U.S, DoD contractors only, administrative or operational use, effective the approval
date of this document. Other requests for this document shall be referred to the
JlEDDO Security Office.
This document contains information
EXEMPT FROM MANDATORY DISCLOSURE
Under the Freedom Ofinformation Act (FOIA).
Exemption 2 applies.

FOR OFFICIAL USE ONLY

34956

FOR OFFICIAL USE ONLY

Security Classification Guide
for
Joint Improvised Explosive Device Defeat Organization (JlEDDO)

Date:
Approved By:
Michael D. Barbero, LTG
Director
Joint IED Defeat Organization
Issued By:

Joint IED Defeat Organization
5000 Army Pentagon
Washington, DC 20310-5000

Action Officer:

Mr. John E. Nimitz
Security Officer/SSR
Joint IED Defeat Organization
703-601-4744

FOR OFFICIAL USE ONLY

34957

FOR OFFICIAL USE ONLY

1. PURPOSE
This Security Classification Guide (SCG) is a living document that provides guidance
and instructions on the classification, marking and distribution of information involved in
the development and eventual employment of tactics, techniques, procedures (TTP)
and technologies that enable the Joint Improvised Explosive Device Defeat (IED)
Organization (JlEDDO) to defeat the IED threat. This SCG addresses security
measures to safeguard developmental efforts within the organization as well as already
developed end items that require ongoing protection measures. As the organization
matures, JlEDDO will update the SCG to address additional IED defeat developmental
efforts requiring protection. Future revisions to this SCG will update declassification
dates in light of fielding dates and other program milestones, as well as technology
commercialization and/or obsolescence. Any suggested changes or updates to this
SCG will be provided in writing to the Office of Primary Responsibility (OPR) as
indicated in paragraph three.
2. AUTHORITY
This SCG is issued under authority of Executive Order (E.O.) 12958, as amended 25
March 2003, and DoDI 5200.1-R (Information Security Program). This SCG constitutes
authority and may be cited as the basis for classification, downgrading, or
declassification of material related to the JlEDDO activities in support of DoD Directive
2000.19E, Joint Improvised Explosive Device Defeat, Unless otherwise noted,
information or material identified as CLASSIFIED by this SCG is classified by authority
of the JlEDDO Original Classification Authority identified on the title page.
3. OFFICE OF PRIMARY RESPONSIBILITY (OPR)
This SCG is issued by and all inquiries for information conceming its content should be
addressed to the Joint Improvised Explosive Device Defeat Organization (JlEDDO),
Attn: Director, 5000 Anny Pentagon, Washington DC 20310-5000.
4. CLASSIFICATION CHALLENGES
Questions conceming the content and interpretation of this SCG should be directed to
the issuing activity. If the security classification imposed by this SCG is considered
impractical, documented and justified recommendations should be made through
appropriate channels to the issuing activity. If current conditions, progress made in this
effort, scientific or technological developments, advances in the state-of-the-art or other
factors indicate a need for changes, similar recommendations should be made.
Pending a final decision, the information involved will be protected at either the currently
specified level or the recommended level, whichever is higher. All users of this SCG
are encouraged to assist in improving its currency and adequacy. Any classification
challenges should be brought to the attention of the OPR.

FOR OFFICIAL USE ONLY

34958

FOROFFICIALUSEONLY
^ REPRODUCTIONS EXTRACTION ANO OlSSEMINATION
Copies of this SOG and all extracts thereof will be made, stored, and transmitted in
accordance with (IAW) authorized procedures con^esponding to the classification of the
information involved Authorized recipients of this SOG may reproduce, extract, and
disseminate the contents of this SOG, as necessary, for use by specified groups,
including industrial activities that are involved in IED Defeat development, test, or
operations,
8. PUBLIC RELEASE
The fact that this SOG contains certain details of unclassified information does not
permit automatic public release of the information. Proposed public disclosures of the
JIEDDO s unclassified information regarding thetechnologies and activities shall be
processed through appropriate channels for approval to publish. Requests for public
release certification must be submitted in accordance with DoD Directive 5230.9
(Clearance of DoD Information for Public Release), DoD Regulation 5400,7(DoD
Freedom of Information Act Program), and the Industrial Security Manual for
Safeguarding Classified lnformation(Section5Disclosure), Defense contractors,
military members as well as govemment service employees shall comply with DoD
Manual 5220 22-M (National Industrial Security Program Operational Manual
(NISPOM))and other requirements that may be directed by the Government,
Only information that has been reviewed and certified for public release may be
released l^owever,the decision or authority to release information belongs to the
Public Affairs office. The OPR will process requests for approval as outlined below.
Any proposed release to the public of official information pertaining to theJIEDDO must
befon^ardedtotheJIEDDO,STRATOOMforreviewandfurtherprocessing Thetenn
^Telease^^ applies, butisnotlimitedto,articles, speeches,briefs,papers, photographs,
brochures, advertisements, displays, presentations, etc, on any JlEDDO related
activity. It is incumbent upon defense contractors, or other agencies, to screen all
information submitted by them for the material certification to ensure that it is both
unclassified and technically accurate. Letters oftransmittal shall contain certification to
this effect. The numberofcopies produced,and distribution ofthe document, must be
strictly controlled until review is completed If suspected classified infotmation is found
during the review process, all holders of the document will be informed of the degree of
protection required. When doubt exists concerning the classified status ofaproposed
release pertaining to the JlEDDO,Security will render the final decision, Thematerial
submitted for review must includeavalid suspense date,if applicable, Requestsfor
public release certification,according to DoD Manual 522022-M,NISPOM(attachment
to DD Fonn 441,Security Agreement), must be submitted to theJIEDDO,STRATCOM
for review and further processing. Electronic copies(unless submitted via Secret
Internet Protocol Router Network (SIPRNet))of the proposed public release material
must be submitted to JlEDDO, STRATCOM at least two weeks before approval is
needed.

FOROFFICIALUSEONLY

34959

FOROFFICIALUSEONLY

Approvalforpublicreleasedoesnotnecessarilysatisfyexportlicensingrequirementsof
the Departments of State and Commerce, Export-controlled material will not be entered
into the security review channels for public release approval to circumvent the licensing
requirements ofthe Departments of State and Commerce,
Release of Program Data on the World Wide Web: Extreme care must be taken when
considering information for release onto publicly accessible or unprotectedWorld Wide
Websites In addition tosatisfyingalloftheaforementioned approval provisions,
owners and/or releasers of information proposed for such release must ensure that it is
not susceptible to compilation with other information to render sensitive or even
classified data in the aggregate. The search and data mining capabilities ofWeb
technology must be assessed fromarisk management perspective. If there are any
doubts, do not release the information!
Release of information to foreign govemment service employees, international
organizations and/ortheir representatives: Any military activity or defense contractor
receivingarequestfor,or proposing to release information on this program will forward
suchrequests/proposalstotheOPR,aftercompliancewiththefollowing:
^

Military activities will comply with the National Policy and Procedure for
the Disclosure of Classified Military Infonnation to Foreign Governments
and International Organizations (NDP-1),

^

Defense contractors will complywith the Department of State
InternationalTraffic in Anns Regulation (ITAR).

NOTE^ Foreign nationalemployeesofthecontractororsubcontractor.includingthose
possessing reciprocal clearances, are not authorized access to classified information
resulting from or used in the performance of their contract unless authorized in writing
by the OPR, Contractors shall ensure that this SOG, including all applicable standard
security precautions and regulations identified intheirDD Form 254,Contract Security
Requirement, arecompliedwithPrimecontractorsareresponsibleforensuringeachof
their subcontractors are aware of, and comply with, these requirements Material
proposed for release by subcontractors will be routed through their prime contractor.
Release of information to the United States Agencies: Requests will be submitted to the
OPR
Release of information at symposia, seminars, and conferences: Requests for such
releases of classified information shall be submitted to the OPR for review and
approval. Material will be submittedaminimum of six weeks prior to proposed release
date in electronic format Any information authorized for release will reflect that the
work reported upon is sponsored by the DoD. If foreign nationals are expected to be
present at suchaconference,the provisions of paragraph7below must be followed,
^
FOROFFICIALUSEONLY

34960

FOROFFICIALUSEONLY
Use of information or data classified byaforeign govemment: If infonnation or data has
been previously classified byaforeign govemment, this information or data will be
classified atalevel which will accord at least the same degree of protection as provided
by the foreign government classification. This procedure will be adhered to even though
ahigher classification than that normally imposed by the U,S,forthe same type of
information will result
7.FOREIGN0ISCLOSURE
ForeigndisclosureisthesharingofUSclassifiedinfonnationwithforeigngovernments
or international organizations in support of established or approved planned
international programs. Any disclosure to foreign officials of information classified by
this SOG shall be in accordance with the procedures set forth in DoD Directive (DoDD)
5230 11, DoDI 5230 27 and National Disclosure Policy (NDP1) Aforeign disclosure
review shall be conducted priorto issuance of any solicitation This review should result
inadeterminationregardingwhich foreign governments and international organizations
(and their industrial entities)will be pennitted to participate in the solicitation.
General Release Guidance: Classified information is only released to properly cleared
persons onaneed-to-know basis and through government-to-govemment channels It
is the responsibility of the individual actually releasing the information to verify that the
recipient isaforeign official authorized to receive classified information on behalf of
his/her govemment or international organization and that information has been properly
approved for release, JlEDDO personnel originating material classified by this guide
will mark it as it is created in accordance with DoDI 5200.1-R, ^^Information Security
Program, January 1997. JlEDDO information developed within combined spaces is
presumed to be releasable to foreign nations represented in those spaces and should
bemarked^^^CLASSIFICATIONj//REL TO USA,^COUNTRY OR ORGANI^TION
OODE^,^^ ^ h e n information is derived from multiple sources, the most restrictive
handling and declassification instructions apply to the derived document. Classified
information not explicitly marked releasable toaparticular country shall not be released
without proper authorization from the originating Foreign Disclosure Officer
According to DoDD 5230 11, under conditions of actual or imminent hostilities such as
Operation Iraqi Freedom or Operation Enduring Freedom, any unified or specified
commander may disclose classified military information(0MI)throughTOP SECRET to
an actively participating allied force when support of combined combat operations
requires the disclosure of that information tender such circumstances, the Ohainnan,
National Disclosure PolicyOommitteewillissuefurtherguidancedetermining any
limitations that should be imposed on continuing disclosure of that information When
an authorized disclosure official(such asaForeign Disclosure Officer(FDO))has made
adetermination thatOMI originated byJIEDDO is releasable undertheseconditions,
the FDO should mark that information ^^^CLASSIFICATIONj//REL TO USA, ^COUNTRY
OR ORGANI^TIONCODEj,^andfon^ard an information copyto the JlEDDO FDO
Aforeign disclosure review shall be conducted prior to issuance of any solicitation This
review should result inadetermination regarding theirforeign governments and

FOROFFICIALUSEONLY

34961

FOROFFICIALUSEONLY
intemationalorganizations(andtheirindustrialentities)permittedtoparticipateinthe
solicitation.
S. FOREIGN GOVERNMENTINFORMATIONANO FOREIGN MILITARY SALES
U S, govemment infonnation is fumished upon the condition that it will not be released
to other nations without specific authority of the DoD of the United States, Subject
release of information provides that individual or corporate rights originating the
infonnation will be provided substantially the same degree of security afforded it by the
Department of Defense of the United States,
^. FOR OFFICIALUSE ONLY(FOUO)CAVEAT
ForOfficial Use Only (FOUO)is notasecurity classification. FOUO information has not
beengivenasecurityclassificationpursuanttothecriteriainthisSOG,butmaybe
withheld from the public for one or more of the reasons cited in E0 12958, as amended,
and DoDI 5200,1 R. Information so designated in this SCG that warrants FOUO
markingswill behandledand protected inaccordancewith regulations TheSCGfor
Freedom Of Information Act (FOIA) mari^ings is intended solelyasaguide One, none
or all of the suggested FOIA exemptions may apply to particular information depending
on the particularfacts ofthe information being protected or disclosed.
This document contains information EXEMPT
FROM MANOATORYOISCLOSURE underthe
FOIA. E^emption(s) ...apply/applies.
ALL Freedom of Information Act (FOIA) exemptions identified in this
SCG^
Number 1. Material appropriately classified by this SCG is similarly exempt from
disclosure as National Security Information under FOIA,
Number2, Related solely to the internal personnel rules and practices of the DoD or
any of its components. Records containing or constituting statutes, rules, regulations,
orders, manuals, directives, instructions, and security classification guides. This
classification encompasses l^i^h^^^ information (i.e., information thatwould allow
persons to circumvent or undermineJIEDDOs internal practices) and ^^Low 2^^
information (ie,information ofatrivial administrative nature)
Number 3. Records protected by another law that specifically exempts the information
from public release Applicabletotechnical Controlled Unclassified Information(CUI).
Number 4, Containing trade secrets or commercial or financial information thataDoD
Component receives fromaperson or organization outside the Government which is
likely to cause substantial harm to the competitive position ofthe source, impairthe
Government s ability to obtain necessary information in the future, or impair some other
7
FOROFFICIALUSEONLY

34962

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legitimate Govemment interest. Some examples: Commercial orfinancial information
received in confidence in connection with bids, contracts, or proposals^ statistical data
and commercial orfinancial information concerning contract performance, income, etc,^
personal statements given in the course of inspections, investigations, or audits^
financial data provided in confidence by private employers in connection with locality
wage surveys^ scientific and manufacturing processes or developments concerning
technical or scientific data or other information submitted with an applicationforagrant
orwithareport while research is in progress^ technical or scientific data developed bya
contractor or subcontractor exclusively at private expense and technical or scientific
data developed in part with federal funds and in part at private expensed computer
software which is copyrighted^ or,proprietary information submitted strictly ona
voluntary basis,
Number5
Subjectiveevaluationsthatarereflected in records pertainingtothe
decisionmakingprocessofanagencyExamplesare: advice, suggestionsor
evaluations prepared on behalf of the DoD^ non-factual portions of evaluations by DoD
component personnel of contractors and their products^ information ofaspeculative,
tentative or evaluative natures trade secret or other confidential research developments
and portionsofofficialreportson inspection, reportsoftheIG,audits, investigations, or
surveys pertaining to safety, security, orthe intemal management, administration or
operation of one or more DoD components,
^O.OISTRIBUTION STATEMENT
Distribution statements are required to be placed on all technical documents no matter if
they are classified or unclassified. Export controlled warning notices will be applied only
totechnicaldocumentscontainingcriticaltechnology Thesenoticeswillbeplacedon
the front cover orfirst page ofthe documenL When possible, parts that contain
infonnation creating the requirement foradistribution statement or otherwarning notice
shall be prepared as an appendix to pennit broader distribution ofthe basic documenL
Technicaldocumentscontaininformation(experimental,developmental, engineering
works)that can be used to define an engineering or manufacturing process orto design,
procure, produce, support, maintain,operate, repair,or overhaul material. The
information may be in text, graphic, or pictorial form
The following statements will be applied to all technical documents as defined as above:
OlSTRIBUTION STATEMENTOF Oistributionauthori^edtothe
Department of Oefense and U.S. OoO contractors (fill in reason)
(date of determination). Other i^equests forthis document shall
be referi^ed to the JIEOOO Security Office.
Reasons for applying distribution O^

8
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34963

FOR OFFICIAL USE ONLY
Foreign Government Information: To protect and limit distribution in accordance with
the desires of the foreign government that fumished the technical infomiation.
Administrative or Operational Use: To protect technical or operational data or
information from automatic dissemination under the International Exchange Program or
by other means. This protection covers publications required solely for official use or
strictly for administrative or operational purposes. This statement may be applied to
manuals, pamphlets, technical orders, technical reports, and other publications
containing valuable technical or operational data.
Software Documentation: Releasable only in accordance with DoD Instruction 7930,2,
Automatic Data Processing (ADP) software exchange and release.
Transfer of data from SIPR to a CD: Transfer of data from SIPR to a CD: Any data that
needs to be transferred from SIPR to a CD must be done in accordance with US
CYPERCOM CTO 10-133. Currently J6 and STRATCOM are the only authorized
divisions that transfer data. All CD with SIPR Data or higher must bear the proper
security marks (AR 380-5). Any CD(s) that needs to be mailed/hand carried out of the
Polk building must go through JlEDDO Security. For further guidance, please contact
JlEDDO Security.
Critical Technology: To protect infonnation and technical data that advance cun-ent
technology or describe new technology in an area of significant or potentially significant
military application or that relate to a specific military deficiency of a potential adversary.
Information of this type may be classified or unclassified; when unclassified, it is exportcontrolled and subject to the provisions of DoDD 5230.25. Apply the following notice to
the front cover or title page:
Warning- This document contains technical data whose export is
restricted by the Arms Export Control Act (Title 22, USC, Sec 2751
etc) or the Export Administration Act of 1979, as amended (Title 50,
USC, App 2401 etc). Violations of these export laws are subject to
severe criminal penalties.
Specific Authority: To protect information not specifically included in the above reasons
and discussions, but which requires protection in accordance with valid documented
authority such as executive orders, classification guides, DoD or DoD component
regulatory documents. When filling in the reasons, cite "Specific Authority (identification
of valid documented authority),"
At times, the application of a different distribution statement may be necessary to
facilitate sharing between U.S, government agencies (Distribution Statements B and C)
orto limit dissemination based upon the Director's discretion (Distribution Statement F).
Further exceptions for the use of another distribution statement shall be submitted to the
JlEDDO Security Office, in writing, with justification.
9
FOR OFFICIAL USE ONLY

34964

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^1.DISCLOSURE OF INTELLIGENCEn^HREATINFORMATION
Data or infonnation relating to threat systems or other intelligence derived material must
bearthe security markings ofthat intelligence/threat material. All dissemination of
intelligence/threat information is controlled by the Director,COIO. Intelligence/threat
information may be reproduced, released to subcontractors, provided instructions, and
procedures approved bythe COIC Director. Intelligence/threat information may be
reproduced, released to subcontractors, provided instructions, and procedures
approved by the Senior Intelligence Officer(S10)are followed. Ouestions regarding
such releases shall be refen-ed to the SIO,
12. LOSS^ COMPROMISED OR SUSPECTEOCOMPROMISE
Reportthe loss, compromise, or suspected compromise of classified JlEDDO
information or material to the JlEDDO Security Office,703-801-4744, within24hours of
the incidenL
^3 COMPILATION OFINFORMATION
In some circumstances, classification may be required if the compilation of unclassified
itemsofinformationprovideaninferencethatwarrantsclassification Similariy,ahigher
classification may be assigned toacompilation of information if the compilation provides
an added factorthat warrants higher classification than that of its component parts.
Classification on this basis will be used sparingly,and complete justification ofthis
classification method will be stated on the title orfirst page of the documenL The
classificationandmari^ingprocessisasfollows:
^

Whenadocument comprises individually unclassified items of
infonnation is classified, by compilation, the overall classification shall be
marked conspicuously at the top and bottom of each page and the
outside front and back covers (if applicable). An explanation ofthe basis
for classification by compilation shall be placed on the face of the
document or included in the texL

^

If portions, standing alone, are unclassified, but the document is
classified t^yoompilation or association, those portions shall be marked
^^U" and the document and pages shall be marked with the classification
of the compilation. An explanation ofthe classification orthe
circumstances involved with association must be included,

^

If individual portions are classified at one level and the compilation isa
higher classification, each portion shall be marked with its own
classification and the document and pages shall be marked with the
classification of the compilation. An explanation of the classification by
compilation is required,

1^0
FOROFFICIALUSEONLY

34965

FOROFFICIALUSEONLY
^4 REAS0NS FOR CLASSIFYING
The reasons for classifying infonnation in this SCG are in accordance with Part I,
Section1,4, Executive Order12958(as amended). They are:
1,4a-Military plans,weapons systems,or operations
1,4b-Foreign govemment information
1,4d-Foreign relations orforeign activities ofthe United States,including confidential
sources; scientific, technological, or economic matters relating to national security
1,4e-Scientific,technological,or economic matters
1,4g-Vulnerabilities or capabilities of the system, installation,projects, or plans
relatingtothenationalsecurity
^5. DEFINITIONS
Classified Performance Capabilities or Limitations: Information that if disclosed
would;
1) damage national securitythroughfacilitating adversary denial,degradation,
disruption, deception, or destruction of mission essential or critical system(s), or
2) would require major modifications to an acquisition program or operational
system to maintain the technological advantage ofthe system during its projected
operational life time,
CompromiseaFuture Capability: Anything not in the inventory now and is planned to
be developed; notacurrent capability. Applies to research,development and
acquisition efforts.
Confidential: Shall be applied to information,the unauthorized disclosure ofwhich
reasonably could be expected to cause damage to national security that the original
classification authority is able to identify or describe.
Critical Information: TBD by the supported organization. Different organizations may
deem information differently as to its criticality. Determination and defense of
informationascriticalisuptothesupportedorganization
Critical Program Information ^CPi^: Information, technologies, or systems thaL unto
themselves, if compromised would degrade combat effectiveness, shorten the expected
combat-effective life of the system, or significantly alter program direction.
Effectiveness of Forces: TBD by supported organization. Usually refers to squad to
division level Different organizations may deem information differently as to its impact
on the effectiveness offerees. For example; information that may impact the
effectiveness ofaSpecial Forces unit compared toaBattalion is potentially
considerable. Determination and defense of information is up to the supported
organization.

11
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Effectiveness of Maior Forces: TBD by supported organization. Usually refers to
theater level; unified command; combination of Military Departments (MILDEPS).
Different organizations may deem information differently as to its impact on the
effectiveness of majorforces. Determination and defense of information is up to the
supported organization.
Enhanced System Capability: An improvement over existing perfonnance or
capabilities found on similar systems
Low-Level Intelligence Collection Capability: Focused on low-level
counterintelligence, Fluman Intelligence (FlUMINT) sources, e.g.,bartender,"beat cop,"
orlowleveldetectioncapability,eg,unattendedgroundsensors
Mission Critical: Amission essential item whose disruption or destruction immediately
degrades the ability of the force to command, control, or effectively conduct combat
operations, Forexample, disruption ordestruction ofthe mechanism used to fusea
system-of-systems(e.g.,041SR) would result in the immediate inabilityforthe separate
system to act in concert asasystem-of-systems.
Mission Essential: Those items required to support approved emergency and/orwar
plans, and where those items are used to:
1) destroy the enemy or the enemyis capacity to continue war;
2) provide battlefield protection of personnel;
3) communicateunderwar conditions;
4) detecL locate,or maintain surveillance overthe enemy;
5) provide combat transportation and support of men and materiel; and/or
8) support training functions
National Military Objectives: Protectthe United States against external attacks and
aggression; prevent conflict and surprise attack, and prevail against adversaries. These
are the ends of the strategy and help to assure allies and friends, dissuade adversaries,
and deter aggression and coercion while ensuring the armed forces remain ready to
defeat adversaries should deterrence and dissuasion fail. They serve as benchmarks to
assess levels of risk and help to define the types and amounts of military capabilities
required
National Objectives IforOoOl: The aims derived from national goals and interests,
toward whichanational policy or strategy is directed and efforts and resources ofthe
nation are applied.
National SecurityStrate^y(forOoO): Theartandscienceofdeveloping,applying,
and coordinating the instruments of national power(diplomatic,economic,military,and
informational) to achieve objectives that contribute to national security. Also called
national strategy or grand strategy,

12
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NOFORN: (NOT RELEASABLETO FOREIGN NATIONALS) UnderauthorityofDirector
OfCentral Intelligence, thismarkingisusedforidentifiedc/ass/^ed/n^e^//ger^cethatmay
notbereleasedinanyformtoforeigngovemments, foreign nationals, foreign
organizations, or non-US citizens without permission of the originator and in accordance
with provisions of DCID 8/7 and NDP-1 Cannot be used with RELTO ^country codesj
or EYES ONLYon page markings (whenadocument contains both NOFORN and REL
TO orNOFORN and EYES ONLYportions, NOFORN takes precedence forthe
markings at the top and bottom ofthe page),
RevealaNational Security Objective: Fact of statement that would reveal an
undisclosed objective or intention—that is covert in nature. Details of how we plan to
achieve national security objectives (primarily planning oriented).
Secret: Shall be applied to information, the unauthorized disclosure of which
reasonably could be expected to cause serious damage to the national security that the
original classification authority is able to identify or describe.
Senior Leadership: President of the US (POTUS); Cabinet Members, Pentagon
Senior Leadership, etc.
Sensitive Information: TBD bythe supported organization. Different organizations
may deem information differently as to its sensitivity. Determination and defense of
information as sensitive is up to the supported organization
Sensitive Intellioence Collection Capability: Tobe determined by the user or
developer of that capability.
Sionificant Impairment: Any characteristic or concepL design or component that
offersatechnicaldisadvantageofenoughmagnitudetobepotentiallydisruptiveinan
operational or advanced system
State of the Art: The highest level of developmenL as ofadevice, technique,or
scientific field,achieved ataparticular time, Forasystemortechnologythathasno
known baseline to determine its relative level of developmenL the very nature of it being
the first ofakind,makes it state of the art.
Strategic Advantai::^e: Operational superiority provided via military instruments that
enablesonenationorgroupofnationseffectivelytocontrolthecourseofamilitaryor
politicalsituationbeyondabattleorengagemenL
Strategic Disadvantage: Inverse of strategic advantage(see above definition).

13
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Tactical Advantage: Operational superiority provided via unit and system performance
and capabilities during battles and engagements planned and executed to accomplish
military objectives assigned to tactical units ortaskforces
Tactical Oisadvantaoe: Inverse of tactical advantage(see above definition).
Threaten the Country s Ability to Waoe War: Identification of details of war plans that
would reveal overall objectives or intentions.
Top Secret: Shall be applied to information, the unauthorized disclosure of which
reasonably could be expected to cause exceptionally grave damage to national security
that the original classification authority is able to identify or describe.
Weal^en the Country s Ability to Wa^e War: Identification of specific details of war
plans inatheater of operation including use of tactical capabilities and mission essential
items,
Sionificantly Weaken the Country s Ability to Wa^e War: Identification of specific
dependencies and objectives inatheater of operation or sub area ofaUnified
Command to include strategic capabilities and mission critical items.
Threaten the International Position of the US: Damage US credibility withaforeign
govemmenL
Weal^en the International Position of the US: Negative impact to the intemational
position of the US and its ability to negotiate with foreign governments.
Si^nificantlyWeaken the International Position ofthe US: Inability of the US to
successfully negotiate withaforeigngovernmentforasignificant period oftime.
Unioue and Fragile Intellii^ence Collection Capability: Tobe determined by the user
or developer ofthat capability.

^4
FOROFFICIALUSEONLY

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34989

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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