Title: Volume FOIA 108

Release Date: 2014-03-20

Text: 34990

Volume 108 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

34991

FOR OFFICIAL USE ONLY
SECTION X-APPLICABLE SECURITY CLASSIFICATION GUIDES

Deputy Secretary of Defense IVlemorandum 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

34992

FOR OFFICIAL USE ONLY
SECTION XI REFERENCES

1. Executive Order 12958, as amended, 5 Jan 2006
2. AR 380-5, "Department of the Army Information Security Program," 14 Jan
2006
3. DOD 5220.22-M, "National Industrial Security Program Operating Manual
(NISPOM), " Jan 1995, Change 1, 31 Jul 1997; Change 2, 28 Feb 2006
4. AR 25-55, "Department ofthe Army Freedom of Information Act Program." 15
Jan 2006
5. DOD Directive 5230-25, "Withholding of Unclassified Technical Data from
Public Disclosure," 6 Nov 1984; Change 1, 8 Apr 1995
6. DOD Directive 5230-24, "Distribution Statements on Technical Documents." 8
Apr 2004
7. DOD Pamphlet 5230.25-PH, "Control of Unclassified Technical Data with
Military or Space Application," 15 Apr 2004
8. DOD 5200.1-R "Information Security Program," Feb 2009
9. DOD 5230.9 "Clearance of DoD Information for Public Release," 22 Aug
2008
10. DOD 5230.11 "Disclosure of Classified Military Information to Foreign
Governments and International Organizations," 7 Feb 2006
11. DODI 5230.27 "Presentation of DoD-related Science and Technical Papers at
Meetings, 6 Oct 1987

36
FOR OFFICIAL USE ONLY

34993

UNCLASSIFIED
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

Prosecution Objection to
Providing an "Example" Witness
to Examine the Viability of
Reasonable Alternatives to Closure
Enclosure 8
3 April 2013

UNCLASSIFIED

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Results tagged "REDACTED Unknown Diplomatic Secunty Sen/ices (DSS) at the Department of State (State
Department) (DoS) Agent No. 8 on 2 December 2011 Defense Request for Article 32 Witnesses XXXXXXXXXX
[ WHO IS THIS? ] is one of the law enforcement agents that conducted work on this case. The defense requests that
XXXXXXXXXX 1 WHO IS THIS?] be instructed to provide the Investigating Officer [ Lt. Col. Paul Almanza ] and the
defense with a complete copy of DSS [Diplomatic Security Services at the Department of State (State Department
(DoS)] case file number XXXXXXXXXX [ WHAT IS THIS NUMBER? ] and any other collateral Investigations by the
DSS [Diplomatic Secunty Services at the Department of State (State Department (DoS)] related to this case at least
two weeks prior to the start of the Article 32 hearing"

Witnes8 | US v WikiLeaks, Unidentified Diplomatic Security Services
(DSS) Agent
By Alexa O'Brien on Decembers, 2011 11:59 AM
US V. Pfc Bradley Manning is being conducted in de facto secrecy. Ttiis page is a worl< in progress and may contain errors Ttie page is
developing and may be updated. All updates and amendments will be noted
For more information on the lack ofpublic and press access to United Slates v. Pfc. Bradley Manning, visit the Center for Corjstltutional
Rights, which filed a petition requesting the Army Court of Criminal Appeals (ACCA) To order the Judge to grant the public and press access
to the govemment's motion papers, the court's own orders, and transcnpts of proceedings, none ofwhich have been made public to date '

General D e s c r i p t i o n
This unidentified Diplomatic Security Sen/ice (DSS) Agent was on the govemment's original 7 July 2010 witness
list
The unidentified DSS agent, however, was the only agent requested by defense for the December 2011 Article 32
Pretrial Hearing that the Government objected to. The defense sought to compel this agent's testimony.
While there is no public record of Almanza's denial of this DSS agent's testimony, the agent 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 njling 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
morning.
No. 8 o n t h e D e c e m b e r 2, 2011 Defense Request f o r A r t i c l e 32 W i t n e s s e s

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^^^^^^H/
VVHO IS THIS? 1 is one ofthe law enforcement agents lhat
conducted work on this case. The defense requests that ^^HK^^I
{WHO IS Features (16)
THIS? ] be instructed to provide the Investigating Officer!U Col. Paul Almanza]
GTMO (14)
and the defense with a complete copy of DSS [Diplomatic Security Services at the Ideas (13)
Department of State (Slate Department (DoS)] case file n u m b e r l l H I ^ ^ H
In the Press (52)
/ WHAT IS THIS NUMBER?] and any other collateral investigations by the DSS
[Diplomatic Security Services al Ihe Department of State (State Department
Interviews with.. (35)
(DoS) ] related to this case at least two weeks prior to the start of the Article 32
NDAA, Hedges et al v Obama et al (13)
hearing.
Occupy Wall Street (62)
December 8, 2011 Defense Request t o C o m p e l ttie P r o d u c t i o n of
Panel Discussions (7)
A r t i c l e 32 W i t n e s s e s
Podcast Video (1)
The fact that the defense-requested agents mirror those of Ihe govemment (with the exception <3f ^ ^ ^ ^ I H Podcasts Audio (16)
/ Unidentified DSS [Diplomatic Security Sen/Ice Agent at the Department of State (State Department) (DoS)]
Published on WL Central (2)
Agent ] shouldspeaktothereasonableness ofthe defense's request. The defense has requesied Ihe
Regions or Countries
attendanceof ^ g g ^ ^ g [ Unidentified DSS [Diplomatic Security Service Agent at the Department of State
(State Department) (DoS)] Agent ] in order to provide the Investigating Officer with testimony concerning the joint Bahrain (6)
investigation^eingconducted by both the Department of State and the Federal Bureau of Investigation.
Balkans (1)
Notably. ^^^^HH
on the original govemment's witness list Hied on 7 July 2010. According to the
Cambodia (1)
'HHUHHIH^^H^^M^^^^I
govemment's memo dated 7 December 2011, the other agents
[WHAT IS THIS? [can pmvide the needed testimony." Their testimony, however, will in large part be hearsay
Egypt (3)
evidence about what other agents have done on the case and what witnesses have told these other case agents.
Europe (2)
Such testimony will do little to aid the Investigating Officer in conducting a "thorough and impartial investigation of
Gaza (2)
all matters" as required by Article 32(a) UCMJ. Further, the defense has a legitimate interest in using the Artide
32 heahng as a discovery tool (see discussion to RCM 405(a)). If the defense does not have the opportunity to
Iran (6)
question the case agents about evidence they developed, witnesses they interviewed, leads they pursued, leads
Saudi Arabia (1)
they elected not to pursue, and other relevant matters, Ihe defense will also be denied an important function that
Yemen (1)
the Article 32 investigation is designed to accomplish. Given the status ofcurrent and ongoing operations and
the fact that case agents are likely spread throughout the United States and overseas, the Article 32 investigation
War on Terror
is the only realistic mechanism available to the defense to personally guestion the case agents involved in the
investigation.

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Agent No. 8 on 2 December 2011 Defense Request for Article 32
Witnesses XXXXXXXXXX [ WHO IS THIS? ] is one ofthe law
enforcement agents that conducted work on this case. The defense
requests that XXXXXXXXXX [ WHO IS THIS?] be instructed to
provide the Investigating Officer [ Lt. Col. Paul Almanza ] and the
defense with a complete copy of DSS [Diplomatic Security Services
at the Department of State (State Department (DoS)] case file
number XXXXXXXXXX [ WHAT IS THIS NUMBER? ] and any other
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34996

UNCLASSIFIED

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

Prosecution Objection to
Providing an "Example" Witness
to Examine the Viability of
Reasonable Alternatives to Closure
Enclosure 9
3 April 2013

UNCLASSIFIED

1 ^0
APPELLATE E X H l B l T j j j ^
PAGEREFERENCED:^^
PAGE
OF
PAGES

34997

From:
To:
Cc:

Subject:
Date:

David Coombs
Lind, Denise R COL USARMY fUS^
Hurley. Thomas F MA] USARMY fUSI: Tooman. Joshua J CPT USARMY fUS1: Morrow. JoDean fJoe1 I I I CPT
USARMY USAMDW (USI: Overgaard. Anoel M CPT USARMY fUSI: Whvte, J Hunter CPT USARMY gjSI: von
Elten. Alexander S fAlecl CPT USARMY (US): Ford, Arthur D Jr CW2 USARMY (US): Williams. Patricia Ann
(Trisha Williams-Butler) CIV USARMY USAMDW (USI: Jefferson, Dashawn MSG USARMY (US): Moore. Katrina R
MSG USARMY (US): Raffel. Michael J SFC USARMY (US): Fein, Ashden MAJ USARMY MDW (US)
Court Recording
Tuesday, March 12, 2013 11:26:39 AM

Ma'am,

I wanted to alert you and the Government to the fact that an audio recording from the last Article 39(a)
session (PFC Manning's statement In support of his providence inquiry) has been posted online. The
recording is available here: https://www.pressfreedomfoundation.org/blog/2013/03/fpf-publishesleaked-audio-of-bradley-manninas-statement.

I believe we will need to identify how someone was able to record the proceedings and to discuss
security measures going forward.

Best,
David

David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906
Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs@armycourtmartiaidefense.com
www.armycourtmartialdefense.com

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

34998

UNITED STATESOF AMERICA
DEFENSE REQUEST FOR
APPROPRIATE RELIEF:
CLOSURE WITNESS

V.

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

28 MARCH 2013

RELIEF SOUGHT
1. The Defense requests this Court to direct the Govemment to produce a witness to conduct a
closed session examination in order to test the possible altematives to closure under Rule for
Courts Martial (RCM) 806(b)(2).
THE LAW
2. RCM 806(2) establishes that court "shall be open to the public unless (1) there is a substantial
probability that an overriding interest will be prejudiced if the proceedings remain open; (2)
closure is no broader than necessary to protect the overriding interest; (3) reasonable altematives
to closure were considered and found inadequate; and (4) the militaryjudge makes case-specific
findings on the record justifying closure."
3. The discussion for this mle elaborates, "[a] session may be closed over the objection ofthe
accused or the public upon meeting the constitutional standard set forth in this Rule." The
discussion further refers practitioners to MRE 505(i). Pursuant to MRE 505(i)(2), "the
Govemment may move for an in camera proceeding conceming the use at any (emphasis added)
proceeding of any classified information." Upon so moving the Govemment must establish the
national security nature of the information by submitting the evidence, and an affidavit to the
militaryjudge ex parte. MRE 505(i)(3). If the Govemment is able to meet the burden ofMRE
505(i)(3), subparagraph (i)(4)(A) establishes the procedure for the in camera proceeding.

ANALYSIS
4. The Govemment has requested closure of the Court during the testimonies of various
witnesses. See Appellate Exhibit 479 and the Supplement to Prosecution Closure Motion dated
15 March 2013. The Defense objects to the Government's request for closure and requests this
Court order an in camera proceeding, as contemplated by MRE 505(i), be held to provide this
Court with the information necessary to make the informed decision and specific mling required
by RCM 806(b)(2).
5. The Govemment must provide more specificity than it has about the classified information it
intends to elicit from the 28 identified witnesses in order for this Court to consider all reasonable
altematives to closure. RCM 806(b)(2)(3) requires the Court to consider all reasonable

APPELLATE EXHIBIT 5 G
PAGE REFERENCED:
PAGE
OF
PAGES

34999

altematives to closure. MRE 505(i)(4)(A)provides thefi^ameworkti^rthose considerations.
MRE 505(i)(4)(A)establishes,^^[pjrior to the in camera proceeding, the Govemment shall
provide the accused with notice ofthe inti:^rmation that will be at issue. This notice shall identity^
the classified inti:^rmation that will be at issue whenever that information previously has been
made available to the accused in connection with the proceeding in the same case.Here, the
information in question has either been provided to PFC Manning or the Defense team has had
access to the infiormation. Thus, the Govemment must identify the specific classified
information tor which they are requesting closure. It is only through this specific identification
that all parties can engage in the meaningful consideration ofaltematives as required by RCM
806(b)(2)(3)
6. In light of the Govemment'slatest closure filing, the parties should conductahearing in
accordance with MRE 505(i) to discuss altematives to the identifications made by the
Govemment. Further, the Defonse believes that the Court'sprevious recommendation ofatrial
run withawitness is one that would benefit all parties and should be heeded. Atrial run would
give the Court and the parties the ability to appreciate the practical realities ofboth closure and
the implementation ofaltematives.
7. The Defense believes that the only way to achieve the necessary level ofspecification is to
actually hear the testimony ofawitness delivered inaclosed court session. Thereat^er,whilethe
Court remains closed, either party or the Court may attempt to elicit the same infiormation
through the use ofaltematives. Then, the Court will be inabetter position to determine whether
closure or use ofan altemative is appropriate.
8. The Govemment'smain concem with this course of action appears to beabelief that this
would provide the Defense withapreview ofits case. The Defense believes that this concem is
notajustified one given the fact the "preview" would only deal with the witnesses'classified
testimony in order to determine ifany altematives to closing the Court with respect to that
witnesses'classified testimony is appropriate. If the Govemment is still concemed abouta
preview ofits case, an altemative approach could involve calling multiple witnesses and limiting
their testimony toaspecific suite of classified facts. This approach would give the Court some
variety in making its closure decisions and deny the defenseacomplete "preview" ofaspecific
witnesses'elassifiedtestimoi^y.

CONCLUSION
9. As indicated above, the Defense respectfully requests the Court to direct the Govemment to
produceawitness to conductadosed session examination in order to test the possible
altematives to closure under Rule fior Courts Martial (RCM) 806(b)(2).

^

CPT,.1A
DefenseCounsd

35000

Icertify tbatlserved or caused to be servedatrue copy of the above on MA.1 Ashden
Fein,via electronic mail, on 28 March 2013.

JOI
MAN
CPT, JA
Defense Counsel

. 35001

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE TARGETED BRIEF
ON 18 U.S.C. SECTION 793(e)

MANNING. Bradley E., PFC

U.S. Anny,
Headquarters an ea quarters Company, U.S.

Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 222ll

DATED: 29 March ZOI3



RELIEF SOUGHT

l. The Defense respectfully requests that this Court deny the Govemment?s requested relief of
instructing on the so-called ?documents clause" of l8 U.S.C. Section 793(e). The Defense does

[101 FCCIUCSI oral argument.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. The burden of proof on any factual issue the resolution of which is necessary to decide a
motion shall be by preponderance of the evidence. See Manual for Courts-Martial, United
States, Rule for Courts-Martial (R.C.M.) 905(c)(l) (ZOIZ). The burden of persuasion on any
factual issue the resolution of which is necessary to decide a motion shall be on the Government
as the moving party. See R.C.M. 905(c)(2). A question of statutory interpretation is a question
of law. R.C.M. 80]

FACTS

3. PFC Manning is charged with one specification of aiding the enemy, one specification of
disorders and neglects to the prejudice of good order and discipline and service discrediting,
eight specifications of violations of I8 U.S.C. Section 793(e). ?ve speci?cations of violations of
I8 U.S.C. Section 641, two specifications of violations of I8 U.S.C. Section I030, and five
specifications of violating a lawful general regulation, in violation of Article 104, I34, and 92,
Uniform Code ofMilitary Justice (U.C.M.J.).

3 I

-


?xv? . .



PAGE moss







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

LEGAL AUTHORITY AND ARGUMENT

5. The Court should deny the Government?s requested relief of instructing on the ?documents
clause? of 18 U.S.C. Section The language of the statute under which PFC Manning is
charged reads as follows:

Whoever having unauthorized possession of, access to, or control over any
document, writing, code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, or note relating
to the national defense, or information relating to the national defense which
information the possessor has reason to believe could be used to the injury of
the United States or to the advantage of any foreign nation, willfully
communicates, delivers, transmits or causes to be communicated, delivered, or
transmitted, or attempts to communicate, deliver, transmit or cause to be
communicated, delivered, or transmitted the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it to the officer or
employee of the United States entitled to receive it;

The statute punishes two distinct acts: i) willful communication, delivery or transfer of national
defense infonnation (ND1) to unauthorized persons, or ii) willful retention of and failure to
deliver it to an of?cer entitled to receive it.

6. Although ?reason to believe? is contained in Section 793(e) and is a listed element of the
charged Section 793(e) specifications of Charge 11, the Government believes that it does not need
to prove the ?reason to believe? element in order to prove the charged offenses. The
Government argues that under the ?documents clause? of 18 U.S.C. Section 793(e), it is not
required to prove that PFC Manning had reason to believe the information transmitted ?could be
used to the injury of the United States.? See Appellate Exhibit 496. In other words, the
Government is arguing that the ?reason to believe? scienter requirement only applies to
intangible information relating to the national defense and not to tangible information in the form
of documents and the like. Accordingly, the Government urges an interpretation of the section
that bifurcates the mens rea requirement depending on whether the disclosed item falls within the
?documents clause? (tangible infonnation) or ?information clause? (intangible information). The
Government cites three cases in support of its position. See US. v. Rosen, 445 F. Supp. 2d 602,
612 (E.D. Va. 2006); US. v. Drake, 818 F. Supp. 2d 909, 916-17 201 US. v.
Kiriakou, 2012 WL 4903319, at *1 (E.D. Va. Oct. 16, 2012).

7. The Government?s argument and reliance on Rosen and those federal cases that follow Rosen

1 For the purposes of this Motion, the Defense will use the Govemment?s n0menclature?the ?documents clause?
and the "information clause? but contests that there are two such clauses controlling the mens rea requirement of 18
U.S.C. Section 793(e).

0 0 35003

in recognizing a ?documents clause? and ?information clause? is misplaced for several reasons.
First, the Court of Appeals for the Armed Forces (C.A.A.F.) has clearly held that the mens rea
requirement for all of Section 793(e) is reason to believe that the charged information could be
used to the injury of the United States or to the advantage of any foreign nation. Second, the
Rosen interpretation of Section 793(e) relied upon the Government for its argument has been
rejected by the C.A.A.F. and A.C.C.A. Finally, the distinction between ?documents? and
?information? (and, between ?tangible? and ?intangible? information) is an arbitrary and
untenable one that cannot be used to guide courts in determining scienter requirements under 18
U.S.C. Section 793.

1. C.A.A.F. Clearly Held In Diaz that the Scienter Requirement of 18 U.S.C. 793(e) Is
?Reason to Believe?

8. C.A.A.F. held in Diaz that the mens rea requirement contained in Section 793(e) was clear in
that it punished ?[w]hoever having information relating to nation defense which information
the possessor has reason to believe could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicated, delivered, or transmitted the
same to any person not entitled to receive it.? 69 MJ. 127, 132 (C.A.A.F. 2010). C.A.A.F. held
that ?[t]he critical language is, of course, that the accused ?has reason to believe could be used to
the injury of the United States or to the advantage of any foreign nation.?? Id. (emphasis in
original). In identifying the critical language of Section 793(e), C.A.A.F. made it clear that the
Government must prove that an accused had a reason to believe the information could be used to
the injury of the United States or to the advantage of any foreign nation.

9. Importantly, C.A.A.F. in Diaz did not draw the distinction adopted in Rosen and its progeny
that the Government now that there is a different mens rea requirement depending on
whether the disclosed item is a ?document? (tangible) or ?information? (intangible). Nowhere in
the judgment is there any inkling that military courts accept a bifurcation of the mens rea
requirement depending on whether an accused is charged under the so-called ?documents clause?
or the ?information clause.?

9

10. When C.A.A.F. identi?ed the mens rea requirement of Section 793(e), it was clearly aware
of the Rosen opinion. The Rosen opinion was decided a mere four years before the Diaz case;
and as argued in more detail below, the accused in Diaz actually argued for C.A.A.F. to follow
Roserfs ?bad faith? requirement, which C.A.A.F. declined to do. Had C.A.A.F. elected to follow
Rosen and recognize a mens rea distinction between ?documents? (tangible information) and
?information? (intangible infonnation) in Section 793(e), it would have arrived at its result in a
different manner. Instead of spending six pages of its opinion discussing ?reason to believe,?
C.A.A.F. would have simply stated that ?reason to believe? was not required given the fact that
Diaz was charged with disclosing a document tangible classi?ed information)? C.A.A.F.,

2 The facts in Dia: clearly involved a document or tangible information being disclosed by the appellant. The
appellant in Dia: printed out a list of detainees from the Joint Detainee Information Management System (JDIMS)
(a classi?ed web-based database on a Secure Internet Protocol Router Network and anonymously
mailed that list to a civilian attorney in order to assist her efforts in locating habeas counsel for those unrepresented
detainees. Diaz, 67 M.J. at 129 -I31. Additionally, the document came off of a classi?ed database and C.A.A.F.

3

. . 35004

however, did not end its analysis of the mens rea requirement by citing the ?documents clause.?
Instead, it spent a signi?cant portion of its opinion detailing how the government had met its
burden of proving the accused had a ?reason to believe? the charged information, a document,
could be used to the injury of the United States or to the advantage of any foreign nation. Id. at
I32 - 134. In choosing to use the mens rea prescription that it did for Section 793(e), C.A.A.F.
made it clear that it did not recognize a Rosen ?documents? (tangible information) and
?information? (intangible information) distinction. Given the clear statement on the men rea
requirement of Section 793(e) by C.A.A.F. in Diaz, this Court should deny the Government?s
request to instruct on the ?documents clause? of 18 U.S.C. Section 793(e).

2. C.A.A.F. Has Already Rejected the Rosen Holding and No Military Court Has
Followed Rosen

1. In addition to endorsing a ?documents clause? and ?information clause? the Rosen court also
added a gloss to 18 U.S.C. Section 793(e) in holding that the Government must prove ?bad faith?
when an accused is charged with disclosing information that the accused had reason to believe
could be used to the injury of the United States or to the advantage of a foreign nation. In Diaz,
the accused argued that such a ?bad faith? requirement should be adopted by military courts
interpreting Section 793(e). Id. at 132. C.A.A.F. outright rejected this argument. Id. at 132 -
133. While recognizing that some federal case law required a heightened mens rea requirement
of ?bad faith,? C.A.A.F. held that ?the law in the militaryjustice system is well?settled on this
point? and that Section 793(e) ?does not require proof of an accused?s bad faith.? Id.

I2. The Government is now requesting this Court to salvage a part of the Rosen opinion that
discussed the mens rea requirement of Section 793(e). C.A.A.F. in Diaz clearly rejected the
Rosen courts? textual and legislative interpretation of Section 793(e) when it held that the mens
rea requirement of Section 793(e) did not require proof of an accused?s bad faith. In rejecting
the Rosen position on requiring bad faith, the Diaz Court also implicitly rejected differing mens
rea requirements depending on whether the disclosed items were ?documents? or ?information.?
There is no reason to believe that C.A.A.F. intended to follow a portion of the Rosen opinion
when it clearly rejected another portion of the Rosen opinion, particularly given that both
portions were part and parcel of the same argument. As discussed above, the clearest proof of
this implicit rejection is the analysis in Diaz itself. If C.A.A.F. intended to adopt a
?documents?/?information? framework for mens rea: a) it would have said so; and b) it would
have concluded its analysis in a completely different way by avoiding the entire discussion
of ?reason to believe? since it was dealing with a tangible document).

13. Despite the clear holding in Diaz, the Government is requesting this Court to recognize a
?documents clause? and ?information clause? and to follow the Rosen precedent?-or at least the
part it likes. In doing so, the Government is requesting this Court to relieve it of the requirement
to prove ?reason to believe? for those charged offenses that involve documents or tangible
information. The Government cites no military authority for its argument.

held that the appellant ?knew he was dealing with sensitive material derived from a classi?ed computer system.? Id.
at 134.



14. The only other military case to address this issue was the unpublished decision of US. v.
Steele. 2011 WL 414992 (A.C.C.A. Feb 3, 201 1). The Steele court, however, did not accept
Rosen and its "document?/?information" framework as precedential; it simply dealt with Rosen
because the accused had argued that the government was required to show that he acted in bad
faith when he retained national defense information in violation of Section 793(e). That the
Steele court did not adopt Rosen is clear when it stated, ?Further, even if Rosen represented
applicable precedent, we find appellant?s analysis inconsistent with the law and logic of the
Rosen court.? Id at *3 (emphasis added). The cited statement makes it clear that Steele did not
accept that Rosen applies in military courts; it simply indicated that even if Rosen applied, the
accused was reading Rosen incorrectly.

15. lmportantly, a?er pointing out the accused?s flawed logic of relying upon Rosen, A.C.C.A.
still went on to discuss why the appellant had a reason to believe the information could be used
to hann of the United States or to the advantage of a foreign nation. Speci?cally, A.C.C.A. held
that the ?evidence regarding the nature of that information amply demonstrated appellant had
?reason to believe [it] could be used to the injury of the United States or to the advantage of any
foreign nation. The mens rea requirement of 18 U.S.C. 793(e) was clearly met.? Id. at
Much like in Diaz, had A.C.C.A. believed that the Rosen ?documents clause? applied under
military law, it would not have discussed the ?reason to believe? element given the fact the
appellant was charged with disclosing documents tangible information). See id at *4 (?Here
the evidence clearly showed that appellant unlawfully retained physical, tangible computer ?les
and documents containing NDI and not ?intangible? information as in

16. This Court should decline the Government?s request to recognize a different mens rea
requirement under Section 793(e) for violations involving ?documents? and ?information.?
C.A.A.F. and A.C.C.A. have both rejected such a framework under Section 793(e). Both courts
held that the mens rea requirement of Section 793(e) requires the Government to prove that an
accused had reason to believe that the charged information could be used to the injury of the
United States or to the advantage of any foreign nation. This Court should require the same and
decline the Government?s request instruct on the ?documents clause? of 18 U.S.C. Section
793(e).

3. The Distinction Between ?Documents? and ?Information? (and ?Tangible? and
?Intangible? Information) Is An Untenable One

17. In addition to being entirely unsupported in military law, the ?documents?/?information?
distinction is inherently unworkable in practice, further bolstering the argument that there is only
one mens rea requirement under 18 U.S.C. Section 793(e): that the accused had ?reason to
believe? that the relevant information could cause injury to the United States or be used to the
advantage of a foreign nation.

18. According to the Government, the first part of 18 U.S.C. 793(e) is the ?documents? clause
which applies when the accused willfully communicates tangible items related to the national
defense. The second part of I8 U.S.C. 793(e) is the ?information? clause which applies when the
accused willfully communicates intangible items related to the national defense. The distinction



between tangible and intangible national defense information makes no sense and should
certainly not be the guiding light in ascribing a mens rea to an offense. Something as important
as the mens rea of an offense should not be left to technical arguments about whether something
constitutes a ?document? or ?infonnation? or whether something is ?tangible? or ?intangible??
Consider the following hypotheticals:

Hypothetical 1: The accused transmits an electronic ?document? via email to a person not
authorized to receive it. The document is never printed by the accused or the recipient. Under
the Government?s interpretation, does this implicate the ?documents" or the ?information? clause
of 18 U.S.C. Section 793(e)? In other words, is the electronic ?document? tangible or intangible?
The Defense submits that the information that is transmitted is intangible??it is a series of
and that is sent through an elaborate network of wires and connections. The Government
would likely submit that despite its actual intangible fonn, this should still be considered tangible
information subject to the documents clause. The point is that there is no clear dividing line as to
what differentiates tangible from intangible information??or, otherwise stated, what exactly
differentiates the ?documents? clause from the ?information? clause.

Hypothetical 2: The accused has a physical hard-copy of a classified document in front of him.
He reads the document verbatim over the phone to someone not authorized to receive the
document. Has the accused communicated tangible or intangible information?? The Defense
submits that this would be considered intangible information because it involved an oral
communication over the phone; no document (whether electronic or paper) ever changed hands.
The Government would likely submit that this involves the ?documents? clause since the accused
had a tangible item in front of him, even though he transmitted the information in a non?tangible
way. Again, the point is that there is not a clear dividing line between ?documents? and
?information? under the Government?s reading of 8 U.S.C. 793(e).

Hypothetical 3: On Day 1, the accused reads a two?sentence classi?ed memo which he
memorizes (he does not physically or electronically retain the memo). On Day 2, the accused
communicates the two?sentence classi?ed memo verbatim, from memory, to someone not
authorized to receive it. In this scenario, it is likely that all would agree that this implicates the
so-called ?information?/?intangible? clause of I 8 U.S.C. Section 793(e) since the accused orally
communicated information that was stored, so to speak, in his memory bank. In this scenario,
should the accused bene?t from a better mens rea (?reason to believe?) than if he had simply
handed the memo to that same unauthorized person on Day 1?

I9. The point of canvassing these various hypotheticals is to show that the interpretation
advanced by the Government of the section is fundamentally ?awed. The distinction between
?documents? and ?information? is an untenable one. Further complicating the matter is that
courts have introduced an equally unhelpful proxy? ?tangible?/?intangible? ?to figure out
whether something falls within the ?documents? or ?information? clause of l8 U.S.C. Section
793(e). There is no principled reason why the following scenarios should be treated differently:

(I) The accused hands a one page hard copy classi?ed document to someone not
authorized to receive it;



(2) The accused emails a one-page electronic copy of a classi?ed document to someone
not authorized to receive it;

(3) The accused reads a one-page hard copy classi?ed document over the phone to
someone not authorized to receive it;

(4) The accused reads a one-page electronic copy of a classi?ed document over the
phone to someone not authorized to receive it;

(5) The accused memorizes the one-page document, later writes down the information,
and gives the hand-written document to someone not authorized to receive it;

(6) The accused memorizes the one-page document and, based on memory, relays the
information to someone not authorized to receive it.

And yet, under the wholly unworkable ?documents??/?information? framework being set up by
the Government, it is likely that these scenarios would, in fact, be treated differently-??not
because one scenario is fundamentally different than another scenario, but because of an arti?cial
construct of labeling something as a ?document? or ?information.? Should the mens rea of an
offense which carries with it l0-years imprisonment be subject to a technical classi?cation which
is largely illusory? The Defense submits that a criminal statute?s scienter requirement should not
turn on such ?ne, not to mention arbitrary, distinctions.

CONCLUSION

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

Respectfully submitted,


Xv? .

Jr I


DAVID E.
Civilian Defense Counsel

. . 35008

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
RULING: GOVERNMNET
MOTION RE: SCIENTER
REQUIRED FOR 18 U.S.C. 793(e)
OR

MANNING, Bradley E., PFC
U.S. Army,-
I-IHC, U.S. Army Garrison
Joint Base Myer-Henderson Hall DATED: l0 April 2013
Fort Myer, Virginia 22211

The Government moves this Court to ?nd that under the ?documents? or ?tangible information? clause of
18 U.S.C. 793(e) the Government is not required to prove the accused ?had reason to believe the
infonnation communicated could be used to the injury of the United States or to the advantage of any
foreign nation? because this additional scienter requirement applies only to charged communications of
intangible information. The Defense opposes, arguing that the charged communications are

intangible infonnation and the Government is required to prove the additional ?had reason to believe?
scienter for both tangible and intangible infonnation charged under the ?information clause?. A?er
considering the pleadings, evidence presented, and argument of counsel, the Court ?nds and concludes
the following:

Findings of Fact:

I. Title 18 U.S.C. Section 793(6) penalizes in relevant part: "Whoever, lawfully having possession of,
access to, control over, or being entrusted with any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to
the national defense, or infonnation relating to the national defense which infonnation the possessor has
reason to believe could be used to the injury of the U.S. or to the advantage of any foreign nation,
willfully communicates, delivers, transmits or causes to be any person not entitled to
receive it, or willfully retains the same and fails to deliver it on demand to the of?cer or employee of the
U.S. entitled to receive it.?

2. The Government has charged the 18 U.S.C. 793(e) speci?cations of Charge 11 in relevant part as
follows: "the unauthorized possession of information related to the national defense, to
wit:

Speci?cation 2 - a video ?le named "12 Jul 07 CZ ENGAGEMENT ZONE 30 GC
Speci?cation 3 - more than one classi?ed memorandum produced by a U.S. government intelligence
agency

Speci?cation 5 - more than 20 classi?ed records from CIDNE Iraq database

Speci?cation 7 - more than 20 classi?ed records from CIDNE Afghanistan database

Speci?cation 9 - more than 3 classi?ed records from a U.S. Southern Command database
Speci?cation l0 - more than 5 classi?ed records relating to a military operation in Farah Province,
Afghanistan occurring on or about 4 May 2009

Speci?cation 11- a ?le named PAX.zip" containing a video named

1

APPELLATT3 sax: new Q15

?it. .
.. I?q

PAGE



0 0 35009

Speci?cation 15 - a classi?ed record produced by a U.S. Army intelligence organization, dated 18 March
2008

with reason to believe such information could be used to the injury of the U.S. or the advantage of any
foreign nation, willfully communicated ..to a person not authorized to receive it.

3. The Government argues that despite the fact that the speci?cations include the additional ?reason to
believe? scienter, the Government is required to prove this additional scienter requirement beyond a
reasonable doubt only if the Court ?nds the charged matter communicated is intangible information. If
the Court ?nds the charged matter communicated is tangible information, then the Government is not
required to prove the ?reason to believe? scienter beyond a reasonable doubt. The Court could except the
additional ?reason to believe? scienter language from the speci?cations and ?nd the accused guilty of
violating 18 U.S.C. Section 793(e) and Article 134, UCMJ under the ?documents? clause.

The Law: When interpreting a statute, the Court employs the following process: (1) Give the terms of
the statute their ordinary meaning if the terms are unambiguous; (2) If the terms of the statute are
ambiguous, then the Court examines the purpose of the statute and its legislative history to resolve the
ambiguity; and (3) If a reasonable ambiguity still exists, the Court applies the rule of lenity and resolves
the ambiguity in favor of the accused. United States v. Starr, 51 M.J. 528, 532 (A.F. Ct. Crim. App.

1999)
Conclusions of Law:

1. 18 U.S.C. 793(e) penalizes the willful communication of (1) any document, writing, code book, signal
book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or
note relating to the national defense, or (2) information relating to the national defense which information
the possessor has reason to believe could be used to the injury of the U.S. or to the advantage of any
foreign nation. The Court refers to these clauses as ?the documents clause? and ?the information clause?,
respectively. The Court also refers to ?which information the possessor has reason to believe could be
used to the injury of the U.S. or to the advantage of any foreign nation? as ?the reason to believe? scienter
requirement.

2. U. S. Rosen was the ?rst prosecution under 18 U.S.C. 793(e) of a person for the oral transmission of
information related to the national defense. 445 F. Supp.2d at 613-614 (E.D. Va 2006). In addressing
various constitutional challenges to the statute, Rosen found that ?information? under 18 U.S.C. 793 is
a general term that includes knowledge derived from both tangible and intangible sources. The Rosen
court looked to the legislative history of 18 U.S.C. 793(e) and held that the additional ?reason to believe?
scienter requirement applies only to communication of intangible information and that this heightened
scienter also required the Government to prove the defendant?s bad faith purpose to either harm the
United States or to aid a foreign government. 445 F. Supp.2d at 625-626.

3. Post ?R0sen courts addressing communication of information under 18 U.S.C. 793(e) have uniformly
held that the Government is not required to prove that the defendant intended to harm the U.S. or aid a
foreign government when the Government charges communications under the ?information clause.? US.
v. Diaz, 69 M.J. 127 (C.A.A.F. 2010); US. v. Steele, 2011WL 414992 Crim. App); US. v.
Kiriakou, 2012 WL 4903319 (E.D.

4. 18 U.S.C. 793(e) is not ambiguous. It penalizes communications under the ?documents clause? (any
document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan,

2

0 0 35010

map, model, instrument, appliance, or note relating to the national defense) or communications under the
?information clause? (information relating to the national defense which information the possessor has
reason to believe could be used to the injury of the U.S. or to the advantage of any foreign nation). The
?infonnation clause? can include tangible and/or intangible information. There is no ?tangible
information? clause in 18 U.S.C. 793(e).

5. Communications charged under the ?documents clause? do not require the Government to prove the
additional ?reason to believe? scienter requirement. US. v. Drake, 818 F. Supp. 2d 909 (D. Md. 2011)
(charged with retention of classi?ed documents under the ?documents clause? ?reason to believe?
scienter not required element); US. v. Kim, 808 F. Supp.2d 44 (D.D.C. 201 l) (oral disclosure of
classi?ed information intangible information ?Congress?s decision to impose a scienter requirement
for the communication, delivery, or transmission of ?information? but not for tangible items demonstrates
that Congress understood and embraced the distinction between the tangible items listed in the statute and
intangible information?)

6. Communications of tangible or intangible information charged under the ?information clause? require
the Government to prove beyond a reasonable doubt the additional ?reason to believe? scienter. Diaz, 69
M.J. I30 (printed list of detainees held at Guantanamo tangible information); Steele (retained classi?ed
material tangible infonnation); Kiriakou (oral communication intangible information - ?The parties
contest what that heightened scienter requirement entails because the indictment speci?cally charges
Kiriakou with violating the information clause not the documents Drake, 818 at 9l6-917
(?Thus, only the second ?information? clause requires proof of the ?reason to believe element?.?)

7. The Government equates ?the document clause? and ?tangible information?. They are not the same.
It is possible that tangible information could also meet the de?nition of one or more of the series of terms
which comprise the ?documents clause? (any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to
the national defense). In such case, the Government could charge a violation of 18 U.S.C. 793(e) under
the ?documents clause? (no ?reason to believe? scienter required); under the ?information clause?
(?reason to believe? scienter required) or, in the alternative, if there was concern that the tangible
information at issue might not qualify as any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to
the national defense in the ?documents clause?.

8. In this case, the matter constituting the charged communications in speci?cations Charge II is tangible information. Actual physical matter, not oral communication, was
communicated. The Government elected to charge the communications under the ?infonnation clause?.
That clause carries with it the ?reason to believe? scienter requirement. The Government is required to
prove beyond a reasonable doubt that the accused had reason to believe the communicated information
could be used to the injury of the U.S. or to the advantage of any foreign nation for the accused to be
found guilty of a violation of 18 U.S.C. 793(e) as charged in these speci?cations.

Ruling: The Government Motion for the Court to ?nd that under the ?documents? or ?tangible
information? clause of 18 U.S.C. 793(e) the Government is not required to prove the accused ?had reason
to believe to the information transmitted could be used to the injury of the United States or to the
advantage of any foreign nation? because this additional scienter requirement applies only to
communications of ?intangible infonnation? is DENIED.

0 0 35011

So ORDERED this 10"? day of April 2013.

DENISE R. LIND
COL, JA

Chief Judge, 1? Judicial Circuit

. . 35012

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: DEFENSE

MOTION TO PRECLUDE

EVIDENCE OF RECEIPT

BY ENEMY ON MERITS
MANNING, Bradley E., PFC
U.S. Army, -
HHC, U.S. Army Garrison
Joint Base Myer-Henderson Hall DATED: 10 April 2013
Fort Myer, Virginia 22211

The Defense moves to preclude the Government from raising or eliciting any discussion, reference, or
argument, to include the introduction of any documentary or testimonial evidence relating to receipt by al
Qaeda, al Qaeda in the Arabian Peninsula, the enemy listed in Bates Number 00410660 - 00410664 or
any other enemy during the merits portion of the trial. The Defense argues that the evidence is not
relevant to any of the charged offenses, and even if relevant, the probative value of receipt by the enemy
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
members or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence under MRE 403. The Government opposes, arguing that this evidence is relevant to the
speci?cation of Charge I (Giving Intelligence to the Enemy, Article 104, UCMJ) and speci?cation I of
Charge II (Wanton Publication of Intelligence, Article 92, UCMJ). At oral argument, the Government
also argued that the evidence was relevant to the ?caused to be published? element of speci?cation 1 of
Charge II. The Government has not proffered this evidence for any other purpose. During the Article
39(a) session from 26 February 1 March 2013, the Court invited the parties to ?le targeted briefs on
receipt of intelligence as a requirement for the offense of Giving Intelligence to the Enemy. On 29
March 2013, the Government ?led a targeted brief. On I April 2013, the Defense advised the Court that
the Defense would not be ?ling a targeted brief. After considering the pleadings, evidence presented, and
argument of counsel, the Court finds and concludes the following:

Findings of Fact:

1. The Court?s instructions for the charge of Knowingly Giving Intelligence to the Enemy as charged in
the specification of Charge are:

CHARGE I: Aiding the Enemy

In the speci?cation of Charge I, the accused is charged with the offense of Aiding the Enemy by Giving
Intelligence to the Enemy, in violation of Article 104, UCMJ. In order to find the accused guilty of this
offense, you must be convinced by legal and competent evidence beyond reasonable doubt:

(I) That at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November
2009 and on or about 27 May 2010, the accused, without proper authority, knowingly gave intelligence
information to certain persons, namely: al Qaeda, al Qaeda in the Arabian Peninsula, and an entity
speci?ed in Bates Number 00410660 through 00410664 (classi?ed entity);

ax: unzr ?16

PAGIZ
PAGE or

0 0 35013

(2) That the accused did so by indirect means, to wit: transmitting certain intelligence, speci?ed in a
separate classi?ed document to the enemy through the WikiLeaks website;

(3) That al Qaeda, al Qaeda in the Arabian Peninsula, and Bates Number 00410660 through
00410664 (classi?ed entity) was an enemy; and

(4) That this intelligence information was true, at least in part.

?Intelligence? means any helpful information, given to and received by the enemy, which is true, at least
in part.

?Enemy? includes (not only) organized opposing forces in time of war, (but also any other hostile body
that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians
as well as members of military organizations). (?Enemy? is not restricted to the enemy government or its
armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the
other.)

?Indirect means? means that the accused knowingly gave the intelligence to the enemy through a 3rd
party, an intermediary, or in some other indirect way.

?Knowingly? requires actual knowledge by the accused that by giving the intelligence to the party or
intermediary or in some other indirect way, that he was actually giving intelligence to the enemy through
this indirect means. This offense requires that the accused had a general evil intent in that the accused
had to know he was dealing, directly or indirectly, with an enemy of the United States. ?Knowingly?
means to act voluntarily or deliberately. A person cannot violate Article 104 by committing an act
inadvertently, accidentally, or negligently that has the effect of aiding the enemy.

2. The de?nition of ?intelligence? in this instruction is taken from the Military Judge?s Benchbook, U.S
Department of the Army, Pam. 27-9 at 3-28-4(d) (1 January 2010) (hereinafter referred to as
Benchbook).

3. The Defense argues that the Benchbook instruction is an inaccurate statement of the law and points to
the language of Article 104, UCMJ and the elements and de?nition. The Defense posits that ?giving
intelligence to the enemy? is a subset of ?communicating? or ?corresponding? with the enemy under
Article 104(2). The Defense relies on Article 104 that ?giving intelligence to the enemy is a
particular case of corresponding with the enemy made more serious by the fact the communication
contains intelligence?. It focuses on the explanation in Article 104 that ?no response or receipt by
the enemy is required,? and relies on US. v. Olson, 7 U.S.C.M.A. 460 (C.M.A. 1957), and its discussion
of a previous version of the Manual for Courts-Martial (MCM) that ?the prohibition lies against any
method of communication whatsoever, and the offense is complete the moment the communication issues
from the accused, whether it reaches its destination or not.? Olson at 467-68. The Defense further
contends that allowing evidence of actual receipt by the enemy will sidetrack and unnecessarily delay the
trial.

4. The Defense describes ?intelligence? as a noun, such that the Court?s proposed instruction de?ning
intelligence con?ates de?ning ?intelligence? with ?knowingly giving?. The Government agrees.

5. The Government contends the evidence is relevant and neither cumulative nor unfairly prejudicial. It

further contends receipt of intelligence by the enemy is a de?nitional requirement of intelligence, citing

R.C.M. 307(c)(3), de?ning a speci?cation as a plain, concise, and de?nite statement of the essential facts
2

. . . 35014

constituting the offense charged. The Government cites the Benchbook for the de?nition of intelligence
and asserts William Winthrop, Illilitary Law and Precedents 634, (2d ed. 1920 reprint) as compelling
legal authority that the speci?c instances of a direct violation of [giving intelligence to the

enemy]. . . [i]t is necessary that the enemy shall have been actually informed.? The Government notes the
Supreme Court and the Court of Military Appeals have relied on Winthrop as an authority on UCMJ
history. Hamdan v. Rumsfeld, 548 U.S. 557, 597 (2006); US. v. Batchelor; 7 U.S.C.M.A. 354, 368
(1956). The Government contends giving intelligence to the enemy is a separate and distinct crime from
communicating with the enemy, citing US. v. Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010) and US. v.
Dickenson, 6 U.S.C.M.A. 438 (C.M.A. 1955).

6. Speci?cation 1 of Charge II alleges wrongful and wanton causing to be published on the intemet
intelligence belonging to the United States government; having knowledge that intelligence published on
the intemet is accessible to the enemy, in violation of Article 134. The Government asserts that evidence
that the enemy received and downloaded the intelligence is relevant to prove that the accused ?caused to
be published? the intelligence.

The Law.

1. Military Rule of Evidence (MRE) 401 de?nes ?Relevant Evidence?. Relevant evidence means
evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without the evidence. The military
judge has the initial responsibility to determine whether evidence is relevant under RCM 401. US. v.
White, 69 M.J. 236 (C.A.A.F. 2010).

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

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

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

5. Article 104, UCMJ penalizes in pertinent part: ?Any person who without proper authority, knowingly
harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse
with the enemy, either directly or indirectly.?

6. In the MCM, page IV-21, paragraph 28 the President has delineated separate elements and de?nitions
for the offenses of ?Giving Intelligence to the Enemy? and ?Communicating with the Enemy?.

7. In Paragraph 28(c)(5) the nature of the offense ?Giving Intelligence to the Enemy? is explained as ?a
particular case of corresponding with the enemy made more serious by the fact that the communication
contains intelligence that may be use?il to the enemy for any of the many reasons that make the
information valuable to belligerents.?



. . . 35015

8. In Paragraph 28(c)(6) the nature of the offense ?Communicating with the Enemy? is explained as
authorized communication, correspondence, or intercourse with the enemy is permissible. The intent,
content, and method of the communication, correspondence, or intercourse are immaterial. No response
or receipt by the enemy is required. The offense is complete the moment the communication,
correspondence, or intercourse issues from the accused.?

9 The analysis to Article 104 in Appendix 23, MCM states that it is based on paragraph 183 of the 1969
MCM and cites US. v. Olson, 7 U.S.C.M.A. 460 (C.M.A. 1957); US. v. Batchelor, 7 U.S.C.M.A. 354
(C.M.A. 1956); and US v. Dickenson, 6 U.S.C.M.A. 438 (C.M.A. 1955).

10. The MCM lists ?attempts? as a lesser included offense (LIO) for both ?Giving Intelligence to the
Enemy? and for ?Communicating with the Enemy?. It does not list either offense as a LIO of the other.

11. In Batchelor, the Court of Military Appeals (CMA) acknowledged Colonel William Winthrop as
?[p]robably the most respected early writer in the ?eld of military law? and his ?leamed treatise? cited in
support of the holding ?that Article 104(2) of the Code does not require a special criminal intent of any
sort?. The CMA went on to note that the Government is not prohibited ?from over?proving its case in
prosecutions under Article 104.? Id at 368. The United States Supreme Court has referred to Winthrop
as ?the ?Blackstone of Military Law?? Hamdan v. Rumgfeld, 548 U.S. 557, 597 (2006) (quoting Reid v.
Covert 354 U.S. 1, 19 n.38 (1957)).

12. Winthrop de?nes the offense of Giving Intelligence to the Enemy as follows:

GIVING INTELLIGENCE TO THE ENEMY, This offence will consist in
communicating to the enemy, by personal statement, message, letter, signal or otherwise,
information in regard to the number, condition, position, or movement of the troops,
amount of supplies, acts or projects of the government in connection with the conduct of
war, or any other fact or matter that may instruct or assist him in the prosecution of
hostilities.

It is necessary that the enemy shall have been actually informed. If there-fore the
intelligence fails to reach him, this offence is not completed, though the offence of
holding correspondence may be. It would seem also that the facts communicated should
be in part at least true, since, if they are entirely false, intelligence cannot be said to be
given.

William Winthrop, ll/Iilitary Law and Precedents 634 (2d ed. 1920 reprint)(emphasis in original).

13. ?While military judges are encouraged not to signi?cantly deviate from the standard instructions
found in the Military Judges? Benchbook, the standard instructions are not sacrosanct.? US. v. Staton, 68
M.J. 569 (A.F. Ct. Crim. App. 2009). (upholding deviations conforming to current case law). ?Because
the standard Benchbook instructions are based on a careful analysis of current case law and statute, an
individual military judge should not deviate signi?cantly from these instructions without explaining his or
her reasons on the record.? US. v. Rush, 51 M.J. 605, 609 (A. Ct. Crim. App. 1999).

Conclusions of Law:

1. Article 104 includes elements for ?ve separate offenses: aiding the enemy, attempting to aid the

enemy, harboring or protecting the enemy, giving intelligence to the enemy, and communicating with the

enemy. Each of these offenses is distinct and separate from the other o?enses. US. v. Anderson, 68 M.J.
4



0 0 35016

378 (C.A.A.F. 2010) quoting U.S. v. Dickenson, 6 U.S. C.M.A. 438, 450 (C.M.A. 1955).

2. The statutory language of Article 104, UCMJ is silent with respect to whether response or receipt by
the enemy is required for the offenses of ?Communicating with the Enemy and ?Giving Intelligence to the
Enemy?. In the MCM, the President explained that the offense of ?Communicating with the Enemy? is
?complete the moment the communication, correspondence, or intercourse issues from the accused.?
MCM, IV-41, paragraph 28c(6)(a). The explanation for the offense of ?Giving Intelligence to the Enemy?
does not state that the giving of intelligence is complete the moment the giving issues ?'om the accused.
This distinction is consistent with Winthrop?s explanation of the distinctions between the two offenses and
a Judge Advocate General opinion regarding Article 46 of the American Articles of War in 1874, the
version of the offense of Aiding the Enemy in effect at that time. William Winthrop, Military Law and
Precedents 633-634 (2d ed. 1920 reprint); William Winthrop, Digest of the Opinions of the Judge
Advocates General of the Army With Notes 41-42 (1895).

3. Aiding the Enemy has been an offense in military codes since the American Articles of War in 1775.
U.S. v. Bachelor; 7 U.S.C.M.A. 354, 368 (C.M.A. 1956) (?This provision [Article 104] is not new or
novel, for it was taken, with only minor changes, from Article of War 81, 10 U.S.C. Section
the present enactment bears a striking resemblance to Article 28, American Articles of
war of 1775, which provided: ?Whosoever belonging to the continental army, shall be convicted of
holding correspondence with, or giving intelligence to, the enemy, either directly or indirectly, shall suffer
such punishment as by a general court?martial shall be ordered.? And the gist of this penal statute has
appeared in every military code since that time. See Article 46, American Articles of War, 1874; Article
81, Articles of War 1916 and 1920.?) Bachelor went on to describe Winthrop as ?Probably the most
respected early writer in the ?eld of military law? and the Court relied on Winthrop?s interpretation of
Article 46, the predecessor statute to Article 104, UCMJ as de?ned in the 1951 MCM. Id.

4. The Defense relies upon U.S. v. Olson, 7 U.S.C.M.A. 460, 467 (C.M.A. 1957) to show that the offense
of ?Communicating with the Enemy? ?has been interpreted consistently so as to require absolute
nonintercourse since early times.? Olson does not address the separate offense of ?Giving Intelligence to
the Enemy? at issue in this case.

5. The 1951 Article 104, UCMJ is nearly identical to the current Article 104, UCMJ. There has been no
legislative, executive, or case-law history since Batchelor that indicates any intent by Congress, the
President, or the Courts to interpret Article 104, UCMJ inconsistently with its history as described by
Winthrop and relied upon in Batchelor to interpret the statute. The President has retained the distinction
between ?Communicating Intelligence to the Enemy? (offense complete the moment the communication
issues) and ?Giving Intelligence to the Enemy? (no provision that the offense is complete when the giving
issues). Furthermore, the standard instructions for Article 104 in the Benchbook invoke the same
distinction and are consistent with Winthrop with the de?nition requiring that ?Intelligence? means any
helpful information, given to and received by, the enemy, which is true, at least in part.?

6. The offense of Article 104 ?Giving Intelligence to the Enemy? requires the Government to prove
beyond a reasonable doubt that the intelligence was actually received by the enemy.

7. The Court agrees with the parties that ?intelligence? is a noun, and that as such, the current Benchbook
instruction in the Court?s instructions: ?Intelligence means any helpful information, given to and received
by the enemy, which is true, at least in part? is awkward. The Court will reword the instruction to read:
?Intelligence means any information that is helpful the enemy and which is true, at least in part. To ?nd
the accused guilty of this offense, the Government must prove beyond a reasonable doubt that the
intelligence was given to and received by, the enemy.?

5



8. Even if receipt by the enemy was not required, evidence of the circumstances surrounding the receipt
by the enemy is relevant to the element of whether the accused knowingly gave intelligence to the enemy
for the speci?cation of Charge I (Aiding the Enemy). Evidence of the path of the intelligence from the
accused to the enemy is circumstantial evidence relevant to prove whether the accused knew or did not
know he was dealing with the enemy.

9. Similarly, evidence of the circumstances surrounding the enemy?s receipt of the intelligence is relevant
to the ?caused to be published? element of speci?cation 1 of Charge II (Wanton Publication). As the
evidence is also relevant to another charge, the Court will not decide whether there could be other less
prejudicial evidence to establish this element.

10. The evidence at issue is not cumulative. Its probative value is not substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence. Allowing the evidence at
issue will not sidetrack or unnecessarily delay the trial by shifting the focus to whether or not the enemy
actually received the charged information. Thus, the Court ?nds that the probative value of the evidence
is not substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading
the members. Presentation of the evidence will not cause undue delay, waste of time or needless
presentation of cumulative evidence IAW MRE 403.

RULING: The Defense Motion to Preclude the Government from raising or eliciting any discussion,
reference, or argument, to include the introduction of any evidence relating to the receipt of charged
information by al Qaeda, al Aqaeda in the Arabian Peninsula, the enemy listed in Bates Number
00410660 through 00410664 or any other enemy from the merits portion of the trial is DENIED. The
court?s instructions regarding the speci?cation of Charge I will be amended as stated in this ruling.



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

So ORDERED this 10th day of April 2013.

0 0

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
RULDIG and ORDER:
INTERPLAY BETWEEN
MRE 505, RCM 806, AND
U.S. v.



MANNING, Bradley E., PFC SPECIFICITY OF

U.S. Army,- CLASSIFIED
HHC, U.S. Army Garrison AND JOHN DOE

Joint Base Myer-Henderson Hall

Fort Myer, Virginia 22211 10 April 2013

Motion 1: The Government moves this Court to ?nd that MRE 505 (Classi?ed Information) and RCM
806 operate independently of each other although both rules address the use of classi?ed infonnation
during a court-martial trial. The Defense opposes and moves the Court to require the procedures in MRE
505(i) be followed when making closure determinations IAW RCM 806(b)(2).

Motion 2: On 15 March 2013, the Government provided the Court and the Defense with a Supplement to
Prosecution Response to Scheduling Order: 39(a) Session on Closure and Motion to Close the Courtroom
for Speci?ed Testimony. On 28 March 2013, the Defense moved the Court to order the Government to
provide more speci?city regarding the classi?ed infomiation it seeks to elicit during closed session. The
Defense also moved the Court to order the Government to produce a merits witness and a sentencing
witness to go through a ?dry run? of the classi?ed testimony in a closed Article 39(a) session to address
whether there are reasonable alternatives to closure available.

Motion 3: On 31 January 2013, the Government moved for in camera proceeding under MRE 505(i)(2)
regarding the witness, John Doe, to demonstrate the necessity for moving the Court to order the
following: (1) permit the witness to testify under the pseudonym, John Doc; to testify in civilian clothing
in light disguise; and to testify from an alternate location in a closed session; (2) limit discovery and
cross-examination regarding information that could reveal the witness?s true identity; and (3) limit
discovery and cross-examination by precluding the Defense from questioning the witness regarding
irrelevant and highly classi?ed information, including: his training for a speci?c classi?ed mission,
preparation for the mission, or details of the mission?s execution outside the scope of direct examination.

After considering the ?lings by the parties and oral argument, the Court ?nds, rules, and orders as
follows:

Findings of Fact and the Law:

1. The accused has a Sixth Amendment right to a public trial. Waller v. Georgia, 467 U.S. 39 (1984);
US. v. Ortiz, 66 M.J. 334 (C.A.A.F. 2008). The public has a First Amendment right to attend criminal
trials. Press Enterprise Company v. Superior Court of California, Riverside County, 464 U.S. 501
(1984); Powell v. McKinney, 47 363 (C.A.A.F. 1997). Trial courts are obligated to take every
reasonable measure to accommodate public attendance at criminal trials, to include considering
alternatives to closure even when they are not requested by the parties. Presley v. Georgia, 558 U.S. 209
(2010).

1 I APPELLATE ExmBn?,5ll.
PAGE REFERENCED:
PAGE PAGES







. . 35019

2. The values enhanced by the requirement for a public trial are to: (1) inspire public con?dence that an
accused is fairly dealt with and not unjustly condemned; (2) impress upon trial participants the
importance of their functions and the importance of carrying out their duties responsibly; (3) encourage
witnesses to come forward; and (4) discourage perjury. Waller, 467 U.S. at 46. Openness enhances both
the basic fairness of the criminal trial and the appearance of fairness so essential to public con?dence in
the criminal justice system. Press-Enterprise, 464 U.S. at 506-509.

3. Before the Military Rules of Evidence were enacted in 1980, military case law allowed closure of
courts-martial for portions of the trial where classi?ed information was to be disclosed. U.S. v. Grunden,
2 M.J. 116 (C.M.A. 1977) established the test for such closures.

4. Under the current rules, MRE 505 governs the use of classi?ed information at trial. MRE 505(i) (In
camera proceedings for cases involving classi?ed information) authorizes in camera proceedings to
address the use at any proceeding of any classi?ed information. MRE 505(j) governs the introduction of
classi?ed information into evidence at trial. MRE 505(j)(5) (Closed Session) provides that the military
judge may exclude the public during that portion of the presentation of evidence that discloses classi?ed
infonnation.

5. RCM 806 establishes the standards for closure of trial for any reason, to include protection of
classi?ed infonnation.

6. Prior to its amendment in 2004, RCM 806(b) provided in relevant part that ?a session may be closed
over the objection of the accused only when expressly authorized by another provision of this Manual.?
The discussion to the rule explained that session may be closed without the consent of the accused
only under MRE 412(c), 505(i) and or This authorization of trial closure failed to apply the
Constitutional test set forth in Waller and Press Enterprise and adopted by the Court of Appeals for the
Armed forces in U.S. v. Hershey, 20 M.J. 433, 436 (C.M.A. 1985).

7. In 2004, RCM 806(b)(2) was amended to incorporate the Constitutional test for trial closure. The rule
provides that trial ?shall be open to the public unless (1) there is a substantial probability that an
overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader than
necessary to protect the overriding interest; (3) reasonable alternatives to closure were considered and
found inadequate; and (4) the military judge makes case-speci?c ?ndings on the record justifying
closure.?

8. The Court of Appeals for the Anned Forces (C.A.A.F.) has recognized that the protection of classi?ed
infonnation can be an overriding interest that will be prejudiced if the proceedings remain open. US. v.
Lonetree, 31 M.J. 849 (N.M.C.M.R. 1990), a?"d 35 M.J. 396 (C.A.A.F. 1992); US. v. Grunden, 2 M.J.
116 (C.M.A. 1997).

9. Where the identity of a witness is classi?ed or the Government proves that the witness?s personal
safety would be at risk if his identity is disclosed at trial, the Sixth Amendment allows the Government to
withhold the identity of the witness and to allow the witness to testify in light disguise so long as the
Defense is able to place the witness in his proper setting. U.S. v. Lonetree, 35 MJ. 396 (C.M.A. 1992).

10. In the Government?s 15 March 2013 classi?ed ?ling (Supplement to Prosecution Response to
Scheduling Order: 39(a) Session on Closure and Motion to Close the Courtroom for Speci?ed
Testimony), the Government describes the classi?ed information it moves to elicit in closed session for
the following witnesses:

. . 35020 I

BG (Ret) Robert Carr, DIA

COL Julian Chestnut, DIA

Classi?ed (entire)

Ms. Elizabeth Dibble, DOS, Principal Deputy Assistant Secretary, Bureau of Near Eastern Affairs
John Doe (entire)

RADM Kevin Donegan, Naval Warfare Integration, Pentagon

Mr. John Feeley, Principal Deputy Assistant Secretary, Bureau of Western Hemisphere Affairs, DOS
AMB Patrick F. Kennedy, Under Secretary for Management, DOS
Mr. John Kirchhofer, DIA

. AMB Michael Kozak, DOS

. Classi?ed (entire)

. Mr. Danny Lewis, DIA

. Mr. Randall MacRobbie, DIA

Mr. James McCarl, Joint IED Defeat Organization (J IEDDO)
MajGen Kenneth McKenzie, USMC HQ Staff

Mr. James Moore, DOS

MG Michael Nagata, Joint Staff, Pentagon

SSA Alexander Otte, FBI

AMB David Pearce, DOS

20. Mr. Adam Pearson, IEDDO

21. Mr. H. Dean Pittman, DOS

22. Classi?ed (entire)

23. AMB Stephen Seche, DOS

24. Mr. David Shaver, U.S. Dep?t of Treasury

25. Ms. Strobl, CIA

26. AMB Don Yamamoto, DOS

27. AMB Marie Yovanovitch, DOS

28. Mr. Joseph Yun, DOS


I nun-nu

11. On 4 April 2013, the Court held an RCM 802 conference with the parties to discuss the motions at
issue in this case and scheduling issues involved in implementing this order. At that RCM 802
conference, the Defense advised the Court that it did not object to closure for the 3 classified witnesses or
for John Doe and did not object to John Doe testifying at an alternate location or in light disguise in
civilian clothing so long as the light disguise allows the Defense to observe John Doe?s demeanor. The
substance of that RCM 802 is documented via email and has been read into the record.

Conclusions of Law:

1. MRE 505(i) authorizes the Government to request an in camera proceeding to determine whether
classi?ed information may be disclosed either to the accused in discovery or used during the trial.

2. MRE 505(j) governs the introduction of classi?ed information into evidence at trial. MRE 505(j)(5)
authorizes military judges to close the trial during that portion of the presentation of evidence that
discloses classi?ed information.

3. The First and Sixth Amendment rights to public trial require military judges to employ the
Constitutional test for closure IAW RCM 806(b)(2) prior to closing any portion of a trial IAW MRE
505(j)(5). -



. . 35021

4. The requirements of MRE 505(i) are not applicable when the Government requests closure of a portion
of the trial or an Article 39(a) session IAW RCM 806(b)(2). Where the basis for closure is to protect
national security by preventing disclosure of classi?ed information, the Government must identify the
particular classified infonnation at issue to the Defense and the Court with suf?cient speci?city to allow
the Defense to propose alternatives and to challenge closure, and, to provide the Court with suf?cient
information to apply the RCM 806(b)(2) test and determine whether (1) there is a substantial probability
that an overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader
than necessary to protect the overriding interest; (3) reasonable alternatives to closure are considered and
found inadequate; and (4) to make case-speci?c ?ndings on the record justifying closure. The
Government must also provide the Court with evidence that the information it seeks to qualify as an
overriding interest requiring protection by closure is properly classi?ed.

5. The Court has examined the Govemment?s 15 March 2013 classi?ed Supplement to Prosecution
Response to Scheduling Order: 39(a) Session on Closure and Motion to Close the Courtroom for
Speci?ed Testimony. The description of the classi?ed information the Government seeks to elicit during
closed session for each of the identi?ed witnesses is suf?ciently speci?c for the Defense to challenge
closure and to propose reasonable alternatives to closure. Although the description of the classi?ed
information is sufficiently speci?c, the Government has not provided the Court with evidence of the
classi?ed nature for all of the classi?ed information at issue to allow the Court to properly apply the RCM
806(b)(2) test and make appropriate case-speci?c ?ndings.

6. One alternative that can mitigate the impact of closure is for the Court to require the Government to
transcribe closed sessions ?rst, conduct the appropriate classi?cation reviews on the transcribed record,
and to release the redacted unclassi?ed portion of the transcript of the closed session to the public.

7. The Court has examined the Classi?ed Government Motion for in camera Proceeding under MRE
505(i)(2) and the enclosures to include enclosures 10, 12, and 13. The Court has held 2 in camera
Article 39(a) sessions with the Government to address Defense discovery issues. The Government
proposes to give the Defense a written copy of the Govemment?s proposed direct examination of John
Doe and the anticipated responses (enclosure 10). The Government has also proposed to provide the
Defense a summary of relevant discovery (enclosure 9 in relevant part and enclosure 13). The Court ?nds
that these disclosures are suf?cient to allow the Defense to place the witness in his proper setting.

RULING: The Defense Motions to require use of the procedures in MRE 505(i) for proceedings
addressing closure determinations under RCM 806(b)(2) and for the Government to provide more
speci?city to the Defense regarding the classi?ed information proposed for closure are DENIED. The
Defense motion to produce a ?dry run? Government merits witness to testify in a closed Article 39(a)
session to assist the Court in determining if there are reasonable alternatives to closure is GRANTED.
The Government motion to permit a classi?ed witness to testify under the pseudonym, John Doc; to
testify in civilian clothing in light disguise; and to testify from an alternate location in a closed session is
GRANTED so long as the light disguise allows the Defense to observe the witness?s demeanor, body
language, movements, and facial reactions. The Government Motion to limit discovery and cross-
examination regarding information that could reveal John Doe?s true identity and preclude the Defense
from questioning John Doe regarding irrelevant and highly classi?ed information, including: his training
for a speci?c classi?ed mission, preparation for the mission, or details of the mission?s execution outside
the scope of direct examination is GRANTED. The Court will set forth its RCM 806(b)(2) closure
?ndings for this witness in a separate ruling.

ORDER:



5
0 35022

1. NLT 7 May 2013 the Government will provide the Court with evidence of the classi?ed nature of
each speci?c piece of classi?ed information the Government seeks to assert as an overriding interest
justifying closure and with a draft court order specifying the evidence for the speci?c classi?ed
information.

2. NLT 12 April 2013 the Government will provide the Court and the Defense a status update on the
progress made to identify a merits witness for whom the Government seeks closure based on disclosure of
classi?ed infonnation to be produced for a ?dry run? of his/her testimony at the closed Article 39(a)
session scheduled on 7-8 May 2013. The parties have identi?ed several witnesses who would testify
similarly but disclose different classi?ed information for example original classi?cation authorities.
The witness produced will be one of these ?categorical? witnesses. The witness will testify as he/she
would at trial in closed session to facilitate the Court?s determine whether there are reasonable
alternatives to closure. Pursuant to RCM 806(b)(2), the Court ?nds that closure of the Article 39(a)
session is required to prevent disclosure of classi?ed national security information from this witness, is
narrowly tailored to closing only the out of court session intended to ?ush out the classi?ed information
involved and to determine whether there are reasonable alternatives to closure of the same classi?ed
information at trial. The Court further ?nds there is no reasonable alternative to closure of this Article
39(a) session.

3. NLT 6 May 2013 the Government will provide the Court with a plan for expeditious transcription,
authentication, classi?cation review, and release of redacted versions of closed sessions to the public.



DENISE R. LIND
COL, JA
Chief Judge, 15? Judicial Circuit

So ORDERED this 10"? day of April 2013.

35023

Appellate Exhibit 518
1 page
classified
"SECRET"
ordered sealed for Reason 2
and Reason 7 (govemment)
Military Judge's Seal Order
dated 20 August 2013
stored in the classified
supplement to the original
Record of Trial

35024

UNITEDSTATESOF AMERICA
V.

Scheduling Order
(Corrected Copy)

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

17 April 2013

1. The Court is currently scheduling Article 39(a) sessions with the following default schedule at
the request of the parties: two weeks for parties to file motions; two weeks for parties to file
responses;fivedays for parties to file replies; and one week for the Court to review all pleadings
before the start of the motions hearing. The time for filing replies was added after the first Article
39(a) session on 15-16 March 2012 because the Court received reply briefs the day before that
session, the parties desire to continue to file replies, and the Court requires time to consider them.
2. Scheduling dates and suspense dates are set forth below. This schedule was coordinated with
the parties. The trial schedule will be reviewed and updated as necessary at each scheduled
Article 39(a) session.
a. Immediate Action (21 February 2012 - 16 March 20121
b. Legal Motions, excluding Evidentiary Issues (29 March 2012 - 26 April 20121
c. Legal Motions f 10 Mav 2012 - 8 June 2012)
d. Interim Pretrial Motions (2 June 2012 - 25 June 2012)
e. Pretrial Motions (7 June 2012 - 20 Julv 2012)
f. Pretrial Motions (20 Julv 2012-30 August 2012)
g. Pretrial Motions (24 August 2012 - 18 October 2012)
h. Pretrial Motions (26 September 2012 - 2 November 2012)
i.

Pretrial Motions f 19 October 2012 -12 December 2012)

j.

Pretrial Motions (16 November 2012 - 11 January 2013)

k. Pretrial Motions (11 January 2013 -17 January 2013)
I.

Pretrial Motions (14 January 2013 - 1 March 2013)

m. Pretrial Motions (15 March 2013-12 April 2013)
,

APPELLATE E X H I B l T j ^
PAGEREFF::; \ ' nPAGE 1 G _

35025

n. Pretrial Motions (22 April 2013 - 8 Mav 2013)
(A) Article 39(a): 7 - 8 May 2013 (0930 start)
(1) Government Update on Identifying "Dry Run" Witness
(A) Filing: 12 April 2013
(2) Notice of Potential Witness Stipulations
(A) Filing: 12 April 2013
(3) Defense Interrogatories for Mr. John Doe
(A) Filing: 19 April 2013
(B) Response: 26 April 2013
(C) Reply: 1 May 2013
(4) Government Plan for Expeditious Transcription of Closed Sessions
(A) Filing: 6 May 2013
(5) Government Evidence of Classification of Information for Closed Sessions
(Grunden)
(A) Filing: 7 May 2013
(6) Government Draft Order for Classified Information for Closed Sessions
(Grunden) (for 24 Remaining Witnesses)
(A) Filing: 7 May 2013
(7) Joint Trial Schedule Proposal
(A) Filing: 7 May 2013
o. Pretrial Motions (22 April 2013 - 24 Mav 2013)
(A)
(B)
(C)
(D)

Filing: 22 April 2013
Response: 6 May 2013
Reply: I I May 2013
Article 39(a): 21 - 24 May 2013

(1) Grunden Hearing for Defense Classified Information
(2) Completion of Security Clearance Checks for Witnesses and Access Granted
(3) Government Notice of Alternatives of Classified Information in lieu of Closing
the Courtroom'
(A) Filing: 6 May 2013
' Altematives include, but are not limited to stipulations; use of code words or special names; use of screens,
disguises, and code names for classified witnesses; use of electronic imagery visible only to cleared trial participants
and not the public; the "silent witness" rule; and syllabi or reference indexes.

35026

(4) MRE505(i) Litigation, if any,based on DefenseMRE505(h) FinalNotice, 22
February2013
(5) NoticeofGovemmentOb^ectionsto Defense UseofClassified Informationand
Government Proposed Alternatives to Delense Use of Classified Information
(6) Witness Stipulations Completed
(A)Filing:llMay2013
p. Trial by MJAIone(3June2013UT'C)
TriaL3June2013-UTC
SoOrderedthisl7thdayofApril2013.

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

35027

UNITED STATESOF AMERICA

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

Prosecution Request
for Leave until6May 2013
to Submit its Notice of Alternatives
of Classified Information in lieu
of Closing the Courtroom
17April2013

The United States respectfitlly requests leave ofthe Court until6May 2013 to submit its
Notice ofAltematives ofclassified Infbrmation in lieu ofClosing the Courtroom. The Notice of
Altematives ofclassified Infbrmation in lieu ofClosing the Courtroom is currently due on 22 April
2013^^^ SchedulingOrder, dated 15 April2013.
The United States requests two weeks fbr the infbrmation owning entities to review the
proposed altematives so the prosecution can make any necessary adjustments to protect the dassified
infbrmation. The United States became aware ofthis requirement as it was discussing the Court's
order in reference to the ^^^^^^^ filing with the infbrmation owning entities. The equity holders
requested the opportuttityto review the altematives to ensttre the classified infbrmation is adequatdy
protected.
This request will not necessitateadelay in the proceedings. A6May 2013 suspense will
permit the Court and the defense sufficient time to review the filing befbre triaL It also provides the
Court sufficient time befbre trial to review the prosecution^s requested altematives. Although the
filing hasa22 April 2013 suspense, the filing was scheduled under the2124 May 2013hearing.
Appellate Exhibit 503 and Scheduling Order, dated 15 April 2013. Therefbre, there will be no
preiudice to the defense.

ANGELMOVERGAARf^
CPT,JA
Assistant Trial Counsel
Icertify tbatlserved or caused to be servedatme copy ofthe above on Mr. David Coombs,
Civilian Defense Counsel,via electronic mail onl7April 2013.

ANGELMO
GAARD
CPT, JA
Assistant Trial Counsel

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

. . 35028

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: GOVERNMENT
v. MOTION FOR LEAVE UNTIL

6 MAY 2013 TO SUBMIT NOTICE

OF ALTERNATIVES TO
MANNING, Bradley E., PFC CLASSIFIED INFORMATION
U.S. Army, IN LIEU OF CLOSING THE
Headquarters and Headquarters Company, US. COURTROOM
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211 17 April 2013

On l7 April 2013, the Government moved for Leave of Court until 6 May 2013 to submit its
Notice of Alternatives of Classi?ed Information in Lieu of Closing the Courtroom. The original suspense
date was 22 April 2013. The Defense does not object.

RULING: The Government motion for Leave of Court until 6 May 2013 is GRANTED.

ORDERED: This 17th day of April 2013.

?1

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

m.'mm1i 52?

PAGE

35029

UNITED STATES OF AMERICA
Prosecution Notice to the Court of
Defensors Notification Pursuant to
Military Rule ofEvidence505(h)
Manning, BradleyE.
PFCU.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

22April2013

On 22 Febmary 2013,the defense completed its notice ofintent to disclose classified
infbrmation in the abovccaptioncd court-martial pursuant to Military Rule ofEvidence (MRE)
505(h). On 28 Febmary 2013,the parties met to discuss, and resolve, anyissues relating to this
defense filing. OnlMarch 2013,the United States filcdanoticc explaining the infbrmation it
requires to process the dcfcnsc'sMRE505(h)notice. OnlMarch 2013,the defense did not
object to the prosccution'snoticc. On8March 2013,the defense submitted an additional notice
ofintent to disclose classified infbrmation based on the issues the partics'discusscd on 28
Febmary 2013. This notice provides an update on two different aspects ofthe dcfcnsc'sMRE
505(h) notice: (l)the defense notice ofinfbrmation it intends to use at trial through govemment
witnesses and (2)thc defense notice ofthe damage/impact assessments it intends to use at triaL
1.
The United States and applicable equity holders processed the defensc'sMRE 505(h)
notices dated 26 October 2012, 22 Febmary 2013 and8March 2013,outlining what classified
infbrmation the defense intends to use with govemment and defense witnesses at triaL
Separatdy,thc defense notified the United States that it does not intend to share any ofthe
contents ofthe Office ofthe National Counterintelligence Executivc(ONCIX) damage
assessment with any witness. The United States docs not object to the use ofthe classified
infbrmation outlined in the dcfense'snotice, so long as the infbrmation remains classified, and
the infbrmation is propcrlyprotcctcd under applicable laws and regulations and not disclosed
publically. This approval is contingent upon the infbrmation being referred to or elicited fioma
witness duringaclosed session, or only afierthc appropriate equity holders approve any
proposed altematives to the classified infbrmation, including the silent witness mle.
2.
As outlined in thclMarch 2013 government filing, both parties arc under an agreement
that the defense is not seeking to share the original assessments with the accused, ^oth parties
agreed to work together toward stipulations offact conceming the contents ofthe damage/impact
assessments, which would be shared with the accused and bo used during triaL On5March
2013 andl7April 2013,the United States and military defense counsd met to review certain
damage/impact assessments. Bdow is an update by assessment ofthe approvals or ongoing
coordination fbr approvals of summaricsofthosc assessments.
a. DepartmentofState. Tho original Department ofStatc'sdrafi impact assessment is
approved fbr use at trial during the presentencing proceedings, so long as the infbrmation
remains classified, and the infbrmation is properly protected under applicable laws and
regulations and not disclosed publically. because the original document is approved fbr use vice

APPELLATEEXHIBIT^^
PAGEREFERENCED;
^AOE^^F^^AOES

35030

asummari^ed version, the defense is not authorised to share the classified contents ofthis
assessment with the accused untilafinding of guilt is made on the record.
b. ONCIX. Aficrmccting with the defense, the United States is working with the
equity holders to update their approvals fbr specific infbrmation to be resummari^ed ina
different form. The United States does not expect to claim the national security privilege over
this infbrmation and to haveafinal summarised document fbr the parties'stipulationby7May
2013. The United States docs expect the summarised docttment to be classified at the "Top
Secret" level with sensitive compartmented infbrmation.
c. DepartmentofDefense. Aficrmccting with the defense, the United States is
working with the equity holders to update their approvals fbr specific infbrmation to bo
summarised. The United States docs not expect to claim the national sccurityprivilege over this
infbrmation and to haveafinalsutnmari^^cd document fbr the parties'stipulation by7May 2013.

ASHOENFEIN
MAJ,JA
TrialCounsd

Icertifythatlserved or caused to be servedatme copy ofthe above on Mr. David
Coombs, Civilian Defense Counsd via electronic mail, on 22 April 2013.

ASHDENFEIN
MAJ,JA
Trial Cottnsd

35031

UNITED STATES OF AMERICA

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

ProsecutionNotificationof
Securitydearances for
Defense Witnesses
22April2013

On 15 October 2012, the defense requested that the United States produce several
individuals, to include Ambassador Pder Galbraith; Colond MorrisD.Davis, USAF Retired;
and ProfbssorYochai Benkler, as witnesses in the above-captioned court-martiaL
Appellate
Exhibit (AE) 344. On 26 October 2012, the defense requested approval to share classified
infbrmation with the above individuals. ^^^AE372. On 23 November 2012,the defense moved
to compd production ofthe above individuals. ^^^AE408. The Court subsequently ordered the
production ofthe three witnesses. Onl4Fcbmary 2013,the United States provided the Court an
update on the security clearances fbr the three witnesses. This updated notice is provided
pursuant to the Court calendar.
Scheduling Order, datcdl7April 2013.
a. Ambassador Galbraith. The United States Army approved Ambassador Galbraith
applying forasecurity clearance, and the Department ofState approved access to Department of
State classified infbrmation only if Ambassador Galbraith is grantedasecurity clearance fiom
the Department ofthe Army. Asofl7April 2013,Ambassador Galbraith is not willing to
cooperate with the prosecution or Headquarters, Department oftho Army by completing the
required paperwork. Since the middlcofMarch 2013,the United States has offered to assist
Ambassador Galbraith with the process to no avaiL Onl8April 2013,the United States
requested Ambassador Galbraith discuss his participation with Mr. Coombs and the defense team
to determine whether the defense still seeks to share classified infbrmation with him. TheUnited
States will not grant Ambassador Galbraith access to classified infbrmation without his voluntary
submission toabackground investigation andasubscqucnt granting ofasccurity clearance.
b. ColDavis, USAF Retired.The United States Army approved ColOavis, USAF
Retired, forasecurity clearance. As ofl8April 2013,the defense may share and use with Col
Davis the classified infbrmation outlined in the defense'snotice, so long as the infbrmation
remains classified, and the infbrmation is properly protected under applicable laws and
regulations and not disclosed publically. Anyproposed altematives to the classified infbrmation
must be approved by the equity holders to ensure the infbrmation is properly protected.
c. Professor Benkler. The United States Army disapproved Professor ^ettkler as hois
not digiblc forasecurity clearance; however, Professor benkler is approved fbr limited access to
classified infbrmation fbr the purposcsofthis court-martial only ifhe meets certain
requirements. On9April 2013,the United States notified Professor benkler ofhis conditional

APPELLATEEXHlBlT.^i^^

PAGEREFERENCED;
^
PAOE^ OP^ PA0E8 ^

35032

approval and the requirement that he fill outaStandard Form 85P,have hisfingerprintstaken,
and sign requisite agreements. As oflbApril 2013,Professor benkler is in the process of
completing all the requirements.

ASHDENFEIN
MAJ,JA
TrialCounsd

Icertifythatlserved or caused to be servedatme copy ofthe above on Mr. Oavid
Coombs, Civilian Defense Counsd via dcctronic mail, on 22 April 2013.

ASHDENFEIN
MAJ,JA
TrialCounsd

35033

UNITED STATES OF AMERICA

J

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

I
I
)
)
)
)
)

Defense Request
for Leave until 24 April 2013
to Submit its Grunden Motion
for Defense Classified Information
22 April 2013

The defense respectfully requests leave ofthe Court until 24 April 2013 to submit its
Grunden Motion for Defense Classified Information. This filing is currently due today.
See Scheduling Order, dated 15 April 2013.
The defense requests this two day delay to resolve a personal problem. The
undersigned is tasked with completing and filing this document, and an issue that just
arose today has prevented its completion.
This request will not necessitate a delay in the proceedings. A 24 April 2013
suspense will permit both the Government and the Court to sufficient time to review the
filing prior to its litigation. Also, the Government indicated that it would not object to this
request on a telephone call eariier today.

J(4rM^t^C3r.i(wJ&y^

i

THOMASF.HURLEY
MAJ, JA
Defense Counsel
I certify that I served a true copy of the above on CPT JoDean Morrow, Assistant
Trial Counsel, via electronic mail on 22 April 2013,

^^U^rvvxM S

.•^..JU^

THOMAS F. HURLEY ^
MAJ, JA
Defense Counsel

APPELLATE EXHIBIT c ^ F H
PAGE REi ERENCED
'
fAGE / OF / P A G I

35034

Appellate Exhihit ^2^
2^ pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August2013
stored in the classified
supplement to the original
Record ofTrial



IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES

DEFENSE INTERROGATORIES
FOR JOHN DOE WITNESS

V.

MANNING, Bradley E., PFC

.8. Army. -

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221 I

DATED: 14 April 2013



Pursuant to Rule for Courts-Martial (R.C.M.) 702(g)(2), the Defense submits the
following questions to be asked of each of the John Doe witness. The Defense requests that the
responses to the written interrogatories be provided to the Court and Defense no later than 6 May
2013.

Memor_'y Issues
1) Please describe the nature of your memory issues? i

2) When did you start having memory issues?

3) How did you realize that you were having memory issues?
4) What was the cause of your memory issues?

5) How do your memory issues impact you?

6) Are you taking any medication for your memory issues? If yes, what medication(s) and for
how long?

7) Were you taking any medication on the date of the UBL raid (2 May 2011)? If yes, what
medication(s) and for how long?

8) Do your memory issues impact your ability to accurately recall the events of the UBL raid?
If yes, how so?

9) Is there anything else that may impact your ability to accurately recall the events of the UBL
raid? If yes, please explain in detail.

lJ?L&i?.
I) When you entered the UBL compound, what was your assigned task?

2) How long were you on the ground at the UBL compound?

-

APPFUATF. ;5\bT

PAGE 1 oi-?HQ I mobs 2"

A



3) How much time transpired from the moment your team entered the compound to the time that
you killed

4) According to open source reporting, the entire raid lasted 38 minutes. At what point during
the mission, did you shift your focus from capturing or killing UBL to data recovery such as

computers, hard drives, thumb drives, and electronic equipment?

5) How much time did you have to ?nd and secure the electronic data before leaving the UBL
compound?

6) Where were the items that you found located?

7) Please describe the room (or rooms) in greater detail, specifically the nature of the computer
equipment in the room (or rooms).

8) Did the room (or rooms) appear to be being used as a nerve center or a command and control
post?

9) Were you the ?rst person in the room (or rooms)? If no, who was?

10) Were you the only one securing computer information in the room (or rooms)? If no, who
else was securing information?

1 1) If there were others securing information from the same room (rooms), how many
individuals were there?

12) How much electronic media and documents did the other individuals take?

13) What computer information did you take from the room (or rooms)?

14) What computer information did you not take from the room (or rooms)?

15) Did you make any notes about the electronic media and documents taken during the raid?

16) Please detail your decision process as to what you elected to take and what you elected not
to take from the room (or rooms).

17) How much time did you spend collecting electronic and documentary information?

18) Were digital forensic and evidence recovery specialists part of the raid team? If yes, how
many members?

19) Were you trained to be a digital forensic and evidence recovery specialist? If yes, what was
your training?

0 35037

20) How many members of the team were collecting electronic and documentary information
from the compound?

21) According to open source reports, your team found approximately 100 thumb drives and
computer disks, along with 10 computer hard drives and ?ve computers in the UBL compound.
Is this accurate? If yes, how much of this information did you take from the compound? If no,
how many thumb drives, computer disks, computer hard drives and computers did your team
take?

22) The published open source reports also indicate that your team found between 10,000 and
15,000 documents in the UBL compound. Is this accurate? If yes, how much of this information
did you take from the compound? If no, how many documents did you take from the UBL
compound?

23) The published open source reports also indicate that your team found between 15,000 and
25,000 videos in the UBL compound. Is this accurate? If yes, how much of this information did
you take from the compound? If no, how many videos did you take from the UBL compound?

24) Did your team take the time during the raid to make any physical Radom Access Memory
(RAM) snapshots of any of the computers? If yes, how many of the computers and how long did
this take your team?

25) Did your team transmit any of this information via a very-small-aperture terminal (VSAT)
from the compound? If yes, how much time did you spend doing this?

26) Other than the room (or rooms) where you recovered information, did any other member of
the team ?nd electronic media or documentary information in any other part of the compound?
If yes, please explain where the information was found.

27) If information was found by other team members in a different location than where you
searched, was this information seized? If yes, please explain to the best of your knowledge what
was seized by indicating the type of electronic or documentary information and the amount that
was seized.

28) How did you secure the information that you collected?

29) After securing the information, did you give it to anyone before you left the compound? If
yes, who did you give it to?

30) Please detail how the information was removed from the compound.

31) Was the information place on only one of the helicopters from the UBL raid? If no, please
detail the number of helicopters that information was placed onto and how much of the
infonnation was placed on each helicopter.

0 0 35038

32) Did you make any notes about the electronic media or documents during the helicopter ride
back to Bagram?

33) Did you sleep on the helicopter ride back to Bagram? If yes, how long were you asleep? If
yes, where was the electronic media and documentary information while you were asleep?

34) Did you remain with the electronic media and documentary ?information at all times from the
compound to when you returned to Bagram? If no, please explain.

35) Please detail how the electronic media and documentary information that you collected was
handled once you returned to Bagram.

36) Did you receive a debrie?ng upon return to Bagram?
37) Did anything happen before the debrie?ng?

38) Did the debrie?ng occur before you transferred custody of the electronic media and
documentary information to the

39) Where was the electronic media and documentary infonnation during the debrie?ng?

40) If the electronic media and documentary information was not with you, who had physical
control over the items?

41) If someone other than you had physical control over the electronic media and documentary
information before releasing that information to the FBI, did that individual also have physical
control over other electronic media and documentary information not associated with the UBL
raid?

42) Where did you and the other members of your team place the electronic media and
documentary information that you collected from the UBL compound when you were being
debriefed?

43) Is it true that, you and the other members of your team threw all of your bags down that
contained the electronic media and documentary information when you arrived at Bagram, went
to another area to get debriefed, and then came back to retrieve the bags that contained the
electronic media and documentary information? If yes, who watched the electronic media and
documentary information while you and your team were being debriefed?

44) Was the electronic media and documentary information that you collected ever out of your
possession or sight before releasing it to the If yes, why and for how long?

45) Was the electronic media and documentary information that you collected ever mingled with
other information and evidence prior to being cataloged by the If yes, what was the other
information and where was it from?



46) After releasing the information to the FBI, did you ever have any other involvement with the
electronic media or documentary information that you collected?

DAVID EDWARD OMBS

Civilian Defense Counsel



Overgaard, Angel CPT USARMY (US)

From: Lind, Denise COL USARMY (US)

Sent: Friday, April 19, 2013 11:48 AM

To: Fein, Ashden MAJ USARMY MDW (US)

Cc: David E. Coombs; Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY

Morrow, JoDean (Joe) CPT USARMY USAMDW Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY von Elten, Alexander (Alec) CPT
USARMY Mitroka, Katherine CPT USARMY Ford, Arthur Jr CW2 USARMY
USARMY Ft McNair Mailbox MDW Court Reporters Prather, Jay CIV
USARMY HQDA Hall, Cassius CIV Ganiel, Charles CIV USARMY ATEC
Boardman, Gerald CIV (US)
Subject: RE: Defense Filing (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

That's fine.


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



From: Fein, Ashden MAJ USARMY MDW (US)

Sent: Friday, April 19, 2013 8:37 AM

To: Lind, Denise COL USARMY (us)

Cc: David E. Coombs; Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY
Morrow, JoDean (Joe) CPT USARMY USAMDW Overgaard, Angel CPT USARMY whyte,
Hunter CPT USARMY von Elten, Alexander (Alec) CPT USARMY Mitroka, Katherine
CPT USARMY Ford, Arthur Jr CW2 USARMY USARMY Ft McNair Mailbox MDW Court
Reporters Prather, Jay CIV USARMY HQDA Hall, Cassius CIV Ganiel, Charles
CIV USARMY ATEC Boardman, Gerald CIV (US)

Subject: RE: Defense Filing

Ma'am,

with your concurrence, the United States would like to request the court reporters append the
relevant portions of Mr. Coombs' email to the interrogatories filing. Thank you.

v/r
MAJ Fein



From: David E. Coombs

Sent: Wednesday, April 17, 2013 6:18 PM

To: Fein, Ashden MAJ USARMY MDW Lind, Denise COL USARMY (US)

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Morrow, JoDean (Joe)
CPT USARMY USAMDW Overgaard, Angel CPT USARMY whyte, Hunter CPT USARMY
von Elten, Alexander (Alec) CPT USARMY Mitroka, Katherine CPT USARMY

Ford, Arthur Jr CW2 USARMY USARMY Ft McNair Mailbox MDW Court Reporters



FyygE;~



1




35041
Prather, Jay CIV USARMY Haws); Hall, Cassius CIV aniel, Charles CIV USARMY
ATEC Boardman, Gerald CIV (US)

Subject: RE: Defense Filing
Ashden,

I suggest simply appending this email traffic as an attachment to the Defense interrogatories
for John Doe. Given that this is a non-issue, it should prevent any confusion in the future.

Best,
David



From: Fein, Ashden MAJ USARMY MDN (us) [mailto

Sent: wednesday, April 17, 2013 5:12 PM

To: David E. Coombs; Lind, Denise COL USARMY (US)

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Morrow, JoDean (Joe)
CPT USARMY USAMDN Overgaard, Angel CPT USARMY whyte, Hunter CPT USARMY
von Elten, Alexander (Alec) CPT USARMY Mitroka, Katherine CPT USARMY
Ford, Arthur Jr USARMY USARMY Ft McNair Mailbox MDW Court Reporters
Prather, Jay CIV USARMY HQDA Hall, Cassius CIV Ganiel, Charles CIV USARMY
ATEC Boardman, Gerald CIV (US)

Subject: RE: Defense Filing

Ma'am and Mr. Coombs,

The appropriate military command reviewed this email chain, the defense's interrogatories,
and Enclosure 13 [John Doe's medical records summary] to the Government MRE 595(i)(2) motion,
dated 31 January 2013. Based on their review there is no spillage.

The medical information was provided to the prosecution and subsequently to the Court and
defense on a classified document, marked on the top and bottom as such. Therefore any
reference to the information would be classified; however after further review of the
underlying document it was determined that Enclosure 13 is not classified and should be
appropriately marked with a disclaimer that it contains medical records.
The United States will correct this issue and provide the Court and defense an updated
document.

The United States still maintains its original request for defense to re?file the
interrogatories with a simple one-line disclaimer as outlined in Mr. Coombs' email below that
the questions were drafted "based upon the acknowledgement that John Doe has memory issues,
and the open source reporting about the UBL raid." This request is to avoid any issues or
confusion within the record of trial in the future.

Thank you.

v/r
MAJ Fein



From: David E. Coombs

Sent: Monday, April 15, 2013 5:45 PM

To: Fein, Ashden MAJ USARMY MDN Lind, Denise COL USARMY (US)

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Morrow, JoDean (Joe)
CPT USARMY USAMDN Overgaard, Angel CPT USARMY Nhyte, Hunter CPT USARMY
von Elten, Alexander (Alec) CPT USARMY Mitroka, Katherine CPT USARMY

2

35042
Ford, Arthur Jr CW2 USARMY Ft McNair Mailbo ow Court Reporters
Prather, Jay CIV USARMY HQDA Hall, Cassius CIV Ganiel, Charles CIV USARMY
ATEC Boardman, Gerald CIV (US)

Subject: RE: Defense Filing

Ashden,

All of these questions were drafted by me, at my office, without the benefit

of your classified filings. I also did not draft any of these questions

based upon any notes from your classified filing. Instead, I drafted the questions based
upon the acknowledgement that John Doe has memory issues, and the open source reporting about
the UBL raid.

I do not intend to re-file my questions unless directed to do so by the Court.

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



Notice: This transmission, including attachments, may contain
confidential attorney-client information and is intended for the

person(s) or company named. If you are not the intended recipient, please notify the sender
and delete all copies. Unauthorized disclosure, copying or use of this information may be
unlawful and is



From: Fein, Ashden MAJ USARMY MDN (us) [mailto

Sent: Monday, April 15, 2013 4:48 PM

To: David E. Coombs; Lind, Denise COL USARMY (US)

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Morrow, JoDean (Joe)
CPT USARMY USAMDW Overgaard, Angel CPT USARMY whyte, Hunter CPT USARMY
von Elten, Alexander (Alec) CPT USARMY Mitroka, Katherine CPT USARMY
Ford, Arthur Jr USARMY USARMY Ft McNair Mailbox Court Reporters
Prather, Jay CIV USARMY HQDA Hall, Cassius CIV Ganiel, Charles CIV USARMY
ATEC Boardman, Gerald CIV (US)

Subject: RE: Defense Filing

Mr. Coombs,

Because this was an unclassified filing, the United States assumes that all the questions

asked in this filing are from open source reporting and not United States Government provided

documentation. For only some of the questions the defense writes "according to open source

reporting," however not all the questions have this disclaimer.
3







The United States requests you re-file these questions with a disclaimer at the beginning of
the document, which states all this information is based on open source reporting and not
discovery provided by the United States, assuming this is true. If not, then please contact
me by telephone to discuss.

Thank you!

"v/r

MAJ Fein



From: David E. Coombs

Sent: Sunday, April 14, 2013 11:31 AM

To: Lind, Denise COL USARMY (US)

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Morrow, JoDean (Joe)
CPT USARMY USAMDN Overgaard, Angel CPT USARMY whyte, Hunter CPT USARMY
von Elten, Alexander (Alec) CPT USARMY Mitroka, Katherine CPT USARMY
Ford, Arthur Jr CW2 USARMY Fein, Ashden MAJ USARMY MDN USARMY Ft McNair
Mailbox MDN Court Reporters OMB

Subject: Defense Filing

Ma'am,

The Defense does not have any objection to the draft scheduling order. The Defense has also
attached its interrogatories for the John Doe witness.

v/r
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 62906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



Notice: This transmission, including attachments, may contain
confidential attorney-client information and is intended for the

person(s) or company named. If you are not the intended recipient, please notify the sender
and delete all copies. Unauthorized disclosure, copying or use of this information may be
unlawful and is

Classification: UNCLASSIFIED
Caveats: NONE

. 35044


UNITED STATES OF AMERICA

Government Response to
Defense lnterrogatories

V0

Manning, Bradley E. for Mr. John Doe
PFC, U.S. Army,
HHC, U.S. Army Garrison, 29 April 2013

Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211



(U) On 14 April 2013, the defense submitted questions for Mr. John Doe. See Defense
Interrogatories for John Doe Witness, dated 14 April 2013. The Court ordered the United States to object
to any questions, if at all, by 26 April 2013. On 26 April 2013, the United States did not object to any
question.

(U) I, Ashden ein, hereby declare under penalty of perjury that Mr. John Doe provided the
prosecution with the enclosed responses to the defense?s questions. Executed this 29th day of April 2013.

OK

ASHDEN FEIN

MAJ, JA

Trial Counsel
(U) Encl
(U) Response by Mr. John Doe (classi?edand containing protected health information
under HIPAA) .

(U) I certify that I served or caused to be served a true copy of the above on the defense through
Mr. Cassius Hall, Defense Security Expert, via secure electronic mail, on 29 April 2013.

?x

FEIN
MAJ, JA
Trial Counsel

PAGE
PAGE Oh PA







Unmarked redactions were present when Army received this document. Redactions are in accordance with (b)(1)(B)
35045

UNITED STATESOF AMERICA
y^

Manning,BradleyE.
PFCUSArmy,
HHCl^SA^^^^^^^^^
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Government Response to
Delense Interrogatories
forMr.JohnDoe
29ApriI2013
Enclosnre

(U) PRIVACY NOTE: This information is protected health information and is protected
nnderHIPAA,tomcludeHIPAAPriyacyRuIe.Accordmgly,thismformationisexempt
from disclosure pursuant to FOIA or any other request. Furthermore, this information
may only he disclosed to authorised persons in the courimartial ofUnited Statesv. PFC
BradleyManning.
(U) CLASSIFICATION OF QUESTIONS:The questions listedbelow are UNCLASSIFIED
and subject to the "privacy note" above. On 15 April 2013, Mr.Coombs, Civilian Defense
Couttsel, notified the Court and United States ofthe following:
All ofthese questions were drafied by me, at my office,without the benefit of [the
Govemment's] dassifted filings. lalso did not drafi any of these questions based
upon any notes fiom [the Govemment's] dassified ftling. Instead,Idrafiedthe
questions based upon the acknowledgment that John Doe has memory issues, and
the open sottrce reporting aboutthe UBL raid.
Memory Issues
1) Please describe the nature ofyour memoty issues
A: (U//FOUO) I have occasional short-term memory deficiencies. Forexample,Imightforget
wherelplacedmv car keys.
2) When did you start having memory issues7
A:(U//FOUO)2to3vearsa20
3) How did you realise that you were having memory issues7
A: (U//FOUO)Ideveloped routine triages notto misplace my wallet and keys.
4) What was the cause ofyour memory issues7
A: (U//FOUO)Ihadret^etitiveTBLbutnotmaiortrauma. lhad consistent small doses over
time.

35046

5) How do your memory issues impact you7
A: (U//FOUO) Thev do not impact my life in any discernible wav.but requires understanding
and triages to work through i t
6) Are you taking any medication for yourmemoryissues7 Ifyes,whatmedicafion(s)andfbr
howlong7
A:(U//FOUO)No
7) Were you taking any medication on the date of the UBL raid(2 May 2011)7 Ifyes, what
medication(s)andforhowlong7
A:(U//FOUO)No
8) Do yottr memory issues impact your abilityto accurately recall the events ofthe UBL raid7
Ifyes, how so7
A:(U//FOUO)No^
9) Is there anything else that may impact your ability to accurately recall the events ofthe UBL
raid7 Ifyes, please explain in detaiL
A:(U//FOUO)No
UBLRaid
1) When you entered the UBL compound, what was your assigned task7

2) How long were you on the ground at the UBL compound7

3) How much time trattspired fiom the moment yourteam entered the compound to the time that
youkilledUBL7

4) According to open source reporting, the entire raid lasted 38 minutes. At what point dttring
the mission, did you shifi yottr focus fiom captttring or killing UBL to data recovery such as
compttters, hard drives, thumb drives, and electronic equipment7

35047

5) How much time did you have to find and secure the electronic data befbre leaving the UBL
compound7

6) Where were the items that you found located7

7) Please describe the room(orrooms)in greater detail, specifically the nature of the computer
equipment in the room(orrooms).

8) Did the room(orrooms)appearto be being used asanerve center oracommand and control
post7

9) Were you the first person in the room(orrootns)7 Ifno,whowas7

10) Were you the only one securing computer information in the room(orrooms)7 Ifno, who
else was securing information7

I I ) Ifthere were others securing information fiom the same room (rooms), how many
individuals were there7

12) How much electronic media and documents did the other individttalstake7

35048

13) Whatcomputer information did you take fiom the room(orrooms)7

14) What computer information did you not take fiom the room(orrooms)7

15) Did you make any notes abottt the electrottic media and documents taken dttringtheraid7

16) Please detail your dedsion process as to what you elected to take and what you elected not
to take fiom the room(orrooms).

17) How much time did you spend collecting electronic and documentary information7

18) Were digital fbrensic and evidence recovery specialists part ofthe raid teant7 Ifyes, how
manymembers7

19) Were you trained to beadigital fbrensic and evidence recovery specialist7 Ifyes, what was
yourtraining7

35049

20) How many members ofthe team were collecting electrottic and documentary ittformation
from the compottnd7

21) Accordingto open source reports, yourteam fbund approximafelylOO thttmb drives and
computer disks, along withlOcomputer hard drives and five compttters in the UBLcompound.
Isthisaccurate7 If yes, how much ofthis information did you take fiom the compound7 Ifno,
how many thumb drives, computer disks, compttter hard drives and computers did yourteam
take7

22) The published opensource reports also indicate that yourteam found between 10,000 and
15,000 documents in the UBL compottnd. Isthisaccurate7 Ifyes, how much ofthis ittfbrmation
did you take from the compound7 If no, how many documents did you take fiom the UBL
compound7

23) The published open source reports also indicate that yourteamfound between 15,000 and
25,000 videos in the UBL compound. Isthisaccttrate7 Ifyes, how much ofthis information did
you take fiom the compound7 If no, how many videos did you take fiom the UBL compound7

24) Did yourteam take the time duringthe raid to make any physical Radom Access Memoir
(RAM) snapshots ofany ofthe computers7 Ifyes, how many ofthe computers and how long did
this take yottrteam7

35050

25) Did yourteam transmit any of this infbrmation viaavery-small-aperture terminal (VSAT)
fiom the compound7 Ifyes, how much time did you spend doing this7

26) Otherthan the room(orrooms)where you recovered infbrmation, didany other memberof
the team find electrottic media or documentary ittformation in any other part ofthe compound7
Ifyes, please explain where the itifbrmation was fbund.

27) Ifinformation was found by otherteam members inadifferent location than where you
searched, was this ittformation seized7 Ifyes, please explain to the best ofyottr knowledge what
was seized by indicatingthe type ofelectronic or documentary information and the amountthat
was seized.

28) How did you secure the ittformation that you collected7

29) Afier securing the information, did you give it to anyone before you lefi the compound7 If
yes, who did you give it to7

30) Please detail how the information was removed from the compound

31) Was the ittformation place on only one of the helicopters from the UBLraid7 Ifno, please
detail the number ofhelicopters that infbrmation was placed onto and how much ofthe
infbrmation was placed on each helicopter.

32) Did you make any notes about the electronic media or documents duringthe helicopter ride
backto Bagram7

35051

33) Didyou sleep onthe helicopterride backto Bagram7 Ifyes, how long were you asleep7 If
yes,where was the electronicmedia and documentary infbrmation while you were asleep7

34) Did you remain with the electronic media and documentary information at afi timesfiomthe
compound to when you retumed to Bagram7 Ifno, please explain.

35) Please detail how the electronic media and documentary ittformation that you collected was
handled once you retttmed to Bagram.

36)DidyoureceiveadebriefinguponretumtoBagr^7

37) Did anything happen befbre the debrieftng7

38) Did the debriefing occur before you transferred custody ofthe electronic media and
documentary^ information to the FBI7

39) Where was the electronic media and documentary information during the debriefing7

40) If the electronic media and docttmentary infbrmation was not with you,who had physical
control overthe itetns7

41) Ifsomeone otherthan you had physical control overthe electronic media and documentary
information befbre releasing that information to the FBL did that individual also have physical

35052

control over other electronic media and documentary information not associated with the UBL
raid7

42) Where did you and the other members ofyour team place the electronic media and
documentary information that you collected fiom the UBL compottnd when you were being
debriefed7

43) Is ittme that, you and the other members ofyourteam threw all ofyour bags down that
contained the electronic media and docttmentary ittformation when you arrived at Bagram, went
to another area to get debriefed, and then came back to retrieve the bags that contained the
electrottic media and documentary information7 If yes,who watched the electronic media and
documentary infbrmation while you and yourteam were being debriefed7

44) Was the electronic media and documentary information that you collected ever out ofyottr
possession or sight before releasing it to the FBI7 Ifyes, why and fbr how long7

45) Was the electronic media and documentary infbrmation that you collected evermingled with
other infbrmation and evidence priorto being cataloged bythe FBI7 If yes,what was the other
information and where was it fiom7

46) Afier releasing the ittformation to the FBL did you ever have any other involvement with the
electronic media or docttmentary ittformation that you collected7

35053

UNCLASSIFIED ("SECRET//ORCON/NOFORN" w/ Enclosure)
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 Response to
Defense Interrogatories
for Mr. John Doe
29 April 2013

(U) On 14 April 2013, the defense submitted questions for Mr. John Doe. See Defense
Interrogatories for John Doe Witness, dated 14 April 2013. The Court ordered the United States to object
to any questions, if at all, by 26 April 2013. On 26 April 2013, the United States did not object to any
question.
(U) I, Ashden Fein, hereby declare under penalty of perjury that Mr. John Doe provided the
prosecution with the enclosed responses to the defense's questions. Executed this 29th day of April 2013.

ASHDEN FEIN
MAJ, JA
Trial Counsel
(U) Encl
(U) Response by Mr. John Doe (classified "S//OC/NF" and containing protected health information
under HIPAA)
(U) I certify that I served or caused to be served a tme copy of the above on the defense through
Mr. Cassius Hall, Defense Security Expert, via secure electronic mail, on 29 April 2013.

ASHDEN FEIN
MAJ, JA
Trial Counsel

APPELLATE EXHIBIT
PAGE REFERENCED:
PAGE
OF
PAGES
UNCLASSIFIED ("SECRET//ORCON/NOFORN" w/ Enclosure)

35054

Appellate Exhihit^2^
Enclosurel
^pages
classified
"SECRET"
ordered sealed for Reason2
and Reasons
^ilitar^^udge^sSeal^rder
dated20August201^
stored in the classified
supplement to the original
Record ofTrial

Unmarked redactions were present when Army received this document. Redactions in accordance with (b)(1)(B)
35055

UNITED STATESOF AMERICA
y^

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

Government Response to
Defense Interrogatories
forMr.JohnDoe
29ApriI2013
Enclosure

(U) PRIVACY NOTE: This information is protected health information and is protected
nnder HIPAA, to inclnde HIPAA Privacy Rnle. Accordingly,thIs information is exempt
fromdisclosure pursnantto FOIA orany otherre^uest. Furthermore, thismformation
may only hedisclosedtoanthori^ednerson^inthecourtmartialofUmted Statesv. PFC
BradleyManning.
(U)CLASSIFICATIONOFQUESTIONS:Thequestionslistedbelow are UNCLASSIFIED
andsubjecttothe "privacy note" above. On 15 April 2013, Mr. Coombs, Civilian Defettse
Couttsel, notified the Couri and United States ofthe fbllowing:
All ofthese questions were drafied by me, at my office,without the benefit of[the
Goverttment's] classified filings. lalso did not drafi any of these questions based
upon any notes fiom[the Govemment's] dassified ftling. Instead,Idrafiedthe
questions based upon the acknowledgment that John Doe has memory issues, and
the open source reporiing aboutthe UBLraid.
Memory Issues
1) Please describe the nature of yourmemory issues
A: (U//FOUO) I have occasional shori-term memory deficiencies. Forexample.Imi^tforget
wherelplacedmv car keys.
2) When did you start having memory issues7
A:(U//FOUO)2to3vearsa^o
3) How did you realize that you were having memory issues7
A: (U//FOUO)Idevelopedroutinetriages not to tnisplace my wallet and keys.
4) What was the cattse ofyour memory issues7
A: (U//FOUO)IhadrepetitiveTBLbutnotmaiortrauma. lhad consistent small doses over
time.

^^^^^^
^^V
/^.I^^^^^.^^^TEEXI^^^IT^^^
fA^^Ei^Ei'^i^^^NC^'^D:
^
PAGE
GF
PAGES

35056

5) How do yottr memory issues impact you7
A: (U//FOUO) Thev do not impact mv life in anv discernible wav,butrei^uires understanding
and triages to work through iL
6) Are you taking any medicationforyourmemoryissues7 Ifyes,whatmedicafion(s)andfbr
howlong7
A:(U//FOUO)No
7) Were you taking any medication on the date ofthe UBL raid (2 May 2011)7 Ifyes, what
medication(s)andforhowlong7
A:(U//FOUO)No
8) Do yottr memory issues impact yottr abilityto accurately recall the events ofthe UBL raid7
Ifyes, how so7
A:(U//FOUO)No^
9) Is there anything else that may impact your ability to accurately recall the events ofthe UBL
raid7 Ifyes, please explain in detaiL
A:(U//FOUO)No
UBLRaid
1) When you entered the UBL compound, what was your assigned task7

2) How long were you on the ground at the UBL compound7

3) How much time transpired fiom the moment your team entered the compound to the time that
youkilledUBL7

4) According to open source reporiing, the entire raid lasted 38 minutes. At what point dttring
the mission, did you shifi yottrfocus fiom captttring or killing UBL to data recovery such as
computers, hard drives, thumb drives, and electronic equipment7

35057

5) How much time did you have to find and secure the electrottic data befbre leaving the UBL
compound7

6) Where were the items that you fbund located7

7) Please describe the room(orrooms)in greater detail, specifically the nature of the computer
equipment in the room(orrooms).

8) Did the room(orrooms)appearto be being used asanerve center oracommand and control
post7

9) Were you the first person in the room(orroottts)7 Ifno,whowas7

10) Were you the only one securing computer information in the room(orrooms)7 Ifno, who
else was secttringinformation7

11) Ifthere were others securing ittformation fiom the same room (rooms), how many
individttalswerethere7

12) How much electronic media and docttments did the other individttalstake7

35058

13) What computer information did you take fiom the room(orrooms)7

14) What computer information did you not take fiom the room(orrooms)7

15) Did you make any notes abottt the electronic media and documents taken dttringtheraid7

16) Please detail your dedsion process as to what you elected to take and what you elected not
to take fiom the room(orrooms).

17) How much time did you spend collecting electronic and documentary information7

18) Were digital fbrettsic and evidence recovery specialists part ofthe raid team7 Ifyes, how
manymembers7

19) Were you trained to beadigital fbrensic and evidence recovery specialist7 Ifyes, what was
yourtraining7

35059

20) How many members ofthe team were collecting electrottic and documentary information
from the compound7

21) According to open source reports, yourteam found ^proximately 100 thumb drives and
computer disks, along withlOcomputer hard drives and five computers in the UBLcompottnd.
Isthisaccurate7 If yes, how much ofthis information did you take ft^om the compound7 Ifno,
how manythumb drives, computer disks, compttter hard drives and computers did yourteam
take7

22) The published open source reports also indicate that yourteamfottnd between 10,000 and
15,000 documents in the UBL compound. Isthisaccurate7 Ifyes, how much ofthis infbrmation
did you take fiom the compound7 Ifno, how many documents did you take fiom the UBL
compound7

23) The published open source reporis also indicate that yourteamfound between 15,000 and
25,000 videos in the UBL compound. Isthisaccttrate7 Ifyes, how much ofthis ittfbrmation did
you take fiom the compound7 Ifno, how many videos did you take fiom the UBL compound7

24) Did yottrteam take the time duringthe raid to make any physical Radom Access Memory
(RAM) snapshots ofany ofthe computers7 Ifyes, how many ofthe computers and how long did
this take yourteam7

35060

25) Did yourteam transmitany of this infbrmation viaavery-small-aperiure terminal (VSAT)
fiom the compound7 Ifyes, how much time did you spend doingthis7

26) Otherthan the room(orrooms)where you recovered infbrmation, did any other member of
the team find electronic media or documentary infbrmation in any otherpari ofthe compound7
Ifyes, please explain where the ittformation was fbund.

27) Ifinfbrmation was fbund by otherteam members inadifferent location than where you
searched, was this infbrmation sei^ed7 Ifyes, please explain to the best ofyour knowledge what
was seized by indicatingthe type of electronic or documentary ittformation and the amountthat
was seized.

28) How did you secure the infbrmation that you collected7

29) Afier securingthe informations did you give itto anyone befbre you lefi the compound7 If
yes,whodidyougiveitto7

30) Please detail how the information was removed from the compound.

31) Was the ittfbrmation place on only one ofthe helicopters fiom the UBL raid7 Ifno, please
detail the number ofhelicopters that ittformation was placed onto and how much ofthe
ittfbrmation was placed on each helicopter.

32) Did you make any notes about the electronic media or documents duringthe helicopterride
backtoBagram7

35061

33) Did you sleep on the helicopterrideback to Bagram7 Ifyes, how long were you asleep7 I f
yes,where was the electronic media and documentary infbrmation while you were asleep7

34) Did you remain with the electronic media and documentary information at all times from the
compound to when you retumed to Bagram7 Ifno, please explain.

35) Please detail how the electronic media and documentary ittformation that you collected was
handled once you retumed to Bagram.

36) Did you receiveadebriefing upon retum to Bagram7

37) Did anything happen before the debrieftng7

38) Did the debriefing occur befbre you transferred custody ofthe electronic media and
documentary ittformation to the FBI7

39) Where was the electronic media and documentary infbrmation during the debriefing7

40) If the electronic media and docttmentary infbrmation was not with you,who had physical
control overthe items7

41) Ifsomeone otherthan you had physical control overthe electronic media and documentary
ittfbrmation before releasingthat ittformation to the FBI, did that individual also have physical

35062

control over other electronic media and documentary ittfbmtation not associated with the UBL
raid7

42) Where did you andthe other members ofyottrteam place the electronic media and
documentary ittfbrmation that you collected fiom the UBL compound when you were being
debriefed7

43) Is ittme that, you and the other members of yourteam threw all of your bags down that
contained the electronic media and docttmentary ittfbrmation when you arrived at Bagram, went
to another area to get debriefed, and then came back to retrieve the bags that contained the
electrottic media and documentary ittfbrmation7 Ifyes, who watched the electronic media and
documentaty^ infbrmation while you and yourteam were being debriefed7

44) Was the electronic media and docttmentary information that you collected ever out ofyour
possession or sight before releasing it to the FBI7 Ifyes, why and fbr how long7

45) Was the electronic media and documentary infbrmation that you collected evermingled with
other infbrmation and evidence prior to being cataloged bythe FBI7 If yes,what was the other
infbrmation and where was it fiom7

46) Afier rdeasingthe ittformation to the FBL did you ever have any other involvement with the
electronic media or documentary infbrmation that you collected7

35063

UNITED STATES OF AMERICA
V.

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

Government Request
forLeayeuntil20May20I3
to Submit its Plan for
Expeditious Transcription of
Closed Sessions
IMay2013

According to the Court'sScheduling Order o f l 5 April 2013,the Uttited States must submit
its plan to ensure expeditious transcription of dosed sessions bybMay 2013.
Appellate Exhibit
(AE)519.This plan is necessary to facilitate the curative cottrtroom closure measure ofreviewing
and making public those portions ofdosed session transcripts that are undassified. ^^^AE511.
The Uttited States respectftilly requests leave ofthe Court until 20 May 2013 to submit this plan.
The United States Army Military District ofWashington (MDW) allocated one permanent
and two temporary civilian court reporters to this court martiaL These individuals are currently
being fully utilized by this court-martiaL At this time, the Department ofthe Army does not have
additional court reporters to dedicate to this courtmartiaL MDWhas authorized funding fbr
contractors to provide the required additional court reporter assistance. It is now in the process of
approvingasubmitted proposal in order to secure this personneLThe United States anticipates this
action will be complete fbrplantting purposes in time to meet the requested 20 May 2013 suspense.
This request will not necessitateadelay in the proceedings because the continued effbri to
constmct and resource this plan can occur concurrently with the scheduled pretrial motions process.
There will be no prejudice to the defense.

ASHDENFEIN
MAJ,JA
TrialCounsd

Icertify tbatlserved or caused to be servedatme copy ofthe above on Mr. David Coombs,
Civilian Defense Counsel,via electronic mail onlMay 2013.

ASHDENFEIN
MAJ, JA
Trial Counsel

APPELLATE EXHIBIT 7 ^ '
PAGE REFER:: ""HPAGE
iES


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


)
)
)
)
)
)
)
)
)

35064

Government Notice
of Alternatives
to Classified Information
in Lieu of Closing
the Courtroom
6 May 2013

According to the Court's Scheduling Order of 15 April 2013, by 6 May 2013, the United States
must notify the Court of the alternatives to classified information it anticipates using during the direct
examination of witnesses who will testify about classified subject matter. See Appellate Exhibit
CAE) 519. The enclosed legends have been prepared to satisfy this requirement. These legends are
classified up to the SECRET level, are unique by witness, and have been approved by information
equity holders.
According to the Court's Scheduling Order of 15 April 2013, by 6 May 2013, the United States
must also notify the Court of those witnesses during whose testimony the United States anticipates
using the silent witness rule. See Appellate Exhibit CAE) 519. This list is detailed below.
I. Aboul-Enein, Youssef discussing his translation of two Arabic documents
2. Allen, Maxwell discussing the Open Source Center logs
3. Artale, Peter discussing ACIC logs
4. Balonek, Kyle discussing a work product email from the accused
5. Buchanan, Stephen discussing the Intelink logs
6. Chamberlin, Sean discussing ACIC logs
7. Defrank, Lorena discussing a work product email from the accused
8. Downey, Jim discussing Centaur logs and the origin or particular IP addresses
9. Glenn, Shelia discussing the document in Specification 15, Charge II
10. Grant, Jacob discussing the USCENTCOM Sharepoint server logs
11 . Hack, Hondo discussing a work product email from the accused
12. Harward, Robert discussing the classification of USCENTCOM information
13. Hoeffel, Patrick discussing specific CIDNE SIGACTs
14. Horvath, Mary discussing hash values in her forensic analysis
15. Hoskins, Thomas discussing the contents of charged USCENTCOM documents
16. Janek, John discussing the Department of State server logs
17. Lamo, Adrian discussing the chat logs
18. Lewis, Danny discussing counterintelligence and the value of government information
19. Moser, Ken discussing the OSJA file structure on the USCENTCOM Sharepoint server logs
20. Motes, Jeffery discussing the JTF-GTMO database and the contents of compromised
information
21. Mundy, Gerald discussing the Department of State firewall logs
22. Murphy, Nick discussing the classification of Department of State information
23. Nehring, Martin discussing the contents of charged USCENTCOM documents
24. Otte, Alex discussing the chain of custody for four files extracted from digital media outlined
in BATES #: 00505250-00505252.
25. Rock, Ronald discussing Reykavik-13
26. Scott, Jaqueline discussing the response to the FOIA request for the Apache video

APPELLATE EXHiBIT 530:..
PAOEREFERENCED:
~
PAOE _Of_ PAGES




27. Travieso, Louis discussing
28. Vankleek, Charles discussing
29. Woods, David

35065

,.",,,,,... ,,,'1- server logs
information

The United States understands it
practicable, should any further n!o!rm:atlC)ll
contained in this filing "11''''):;''.

to notify the Court, as soon as
nrorecl:ton or should the information

above on Mr. David Coombs,

I certify that I served or y""..."'''u
Civilian Defense Counsel,

MAJ,JA
Trial Counsel

SECRET//NOFORN]
SECRET//NOFORN]
SECRET//NOFORN]

35066

Appellate Exhihit^^O
Enclosurel
2pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August201^
stored in the classified
supplement to the original
Record ofTrial

35067

Appellate Exhihit^^O
Enclosure2
2pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August201^
stored in the classified
supplement to the original
Record ofTrial

35068

Appellate Exhihit^^O
Enclosures
2pages
classified
"SEORET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35069

Appellate Exhihit^^O
Enclosures
2pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35070

Appellate Exhihit^^O
Enclosures
2pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August201^
stored in the classified
supplement to the original
Record ofTrial

35071

Appellate Exhihit^^O
Enclosures
^pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August201^
stored in the classified
supplement to the original
Record ofTrial

35072

Appellate Exhihit^^O
Enclosures
2pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35073

Appellate Exhihit^^O
Enclosures
2pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35074

Appellate Exhihit^^O
Enclosures
2pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35075

Appellate Exhihit^^O
EnclosurelO
2pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August201^
stored in the classified
supplement to the original
Record ofTrial

35076

Appellate Exhihit^^O
Enclosurell
2pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35077

Appellate Exhihit^^O
Enclosure 12
2pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35078

Appellate Exhihit^^O
Enclosurell
^pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August201^
stored in the classified
supplement to the original
Record ofTrial

35079

Appellate Exhihit^^O
Enclosurell
2pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35080

INTHEUNITEDSTATESARMY
FIRSTJUDICIALCIRCUIT
UNITED STATESOF AMERICA
y.

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

)
)
^
)
)
)
)
^
)

CORRECTEDCOPY
ORDER TOCLOSE
CERTAINPROCEEDINGS
DATED:

21 May 2013

1. The Govemment moves the Court to order trial proceedings closed to the public when certain
classified infbrmation is being introduced or is the subject ofcxamination or argument to ensure
that the infbrmation specified in the Govcrmnent'smotion is not disclosed to the public.
Appellate Exhibit(AE)479. OnlMarch 2013,the Court required the Government to resubmit its
request with more specificity. AE 503. On 15March 2013,the Goverttment resubmitted its
request with more specificity. AE 505. Regarding the witness, John Doe, the Government offers
the threat to his safety as an additional overriding interest to close the proceedings during his
testimony. AE477.
2. This mling sets fbrth the Court'sfindings with respect to the portion of the Govemment motion
to close the proceedings for the entire testimony of John Doe. The Defense does not object to the
Government'smotion to close the proceedings fbr the entire testimony ofJohn Doe.
Findings ofFact:
1. The Government intends to introduce classified evidence fiom the testimony of John Doc. No
evidence has been presented that the classified information at issue is lawfully in the public
domain or has been officially acknowledged by the GoverttmenL
2. The Govemment presented evidence demonstrating thatJohnDoc'sidcntity is classified and
that the classified infbrmation at issue is national security information requiring protection fiom
publicdisclosure. Enclosures 1,4,5,6,7,and8toAE 477. The Government also presented
evidence in AE 477 and its enclosures that public disclosure of the identity ofJohn Doe posesa
legitimate threat to his safety. The Couri reviewed AE477 and its enclosures ^ ^ ^ ^ ^ ^ ^ i ^ .
3. The Govemment proffers that this classified information is relevant to the specification of
Chargeland specificationlof ChargelL
4. The Court finds that the evidence in AE477 and its enclosures demonstrates that the
Goverttment has proved byapreponderance of the evidence that the testimony sought to be
introduced is classified and was properly classified by an authorised original classification
authority applying the standards ofExccutive Order 13526.
5. Public disclosure ofthe classified infbrmation reasonably could be expected to cause serious
harm to the national security ofthe United States as described in the classification reviews. The
classified information at issue pertains to military plans and operations, intdligcnce activities,
APPELLATEEXHIBIT^^
PAGEREFERENCED:
^^GE
OF
PAGES

35081

intelligence sources and methods, and the fbreign relations and foreign activities ofthe United
States, the unauthorised disclosure ofwhich reasonably could be expected to harm the nattonal
defense and foreign relations ofthe Unites States. Enclosures 1,4,5,6,7and8toAE477.
TheLay^:
LTheCourt'sl3 April 2013 Rulingand Order: Interplay BetweenMRE 505,RCM 806, and
U.S.v.Grtmden; Specificity of Classified Information; and John Doc sets fbrth the Court'sview
of the law regarding closure of trial proceedings under the First and Sixth Amcndmcnts,RCM
806(b)(2),andMRE505(^)(5)
2. When the Goverttment seeks closure of court proceedings, the Constitutional test incorporated
by RCM 806(b)(2)requires the Govemment to demonstrate that(I)there isasubstantial
probability that an overriding interest will be prejudiced ifthe proceedings remain open; (2)
closure is no broader than necessary to protect the overriding interest; and (3)rcasonablc
altematives to closure were considered and fbund inadequate. The evidence presented must be
sufficient to allow the Court to make case-specificfindingson the record justifying closure.
3. Where the basts fbraproposcdclosureofportions of the trial is to protect against disdosttre of
classified infbrmation, the Government must demonstrate that the infbrmation is properly
classified, that closure ofthe proceedings during the presentation ofthe classified infbrmation is
necessary to protect the national security ofthe United States, and that the proposed closing is
narrowly tailored so that proceedings are closed to the absolute minimum necessary to protect the
national security information. (^i^^^^^^i^^^^^.^v.G^^^^^^^,2M.J.116(C.M.A.1977).
4. When closing proceedings to protect the national security ofthe United States by preventing
disclosttrc of classified information, the Court must make individualizedfindingswith respect to
the specific infbrmation the Govemment asserts requires protection fiom public disclosure,
identify each witness who will testify regarding the classified infbrmation, and close the Court
only during the poriions ofthe presentation ofevidence that actually divulge the classified
information. (^^^^i^i^/^/^.^v^^^^^^^^,31M.J.849,853 (N-M.C.M.R.1990),^^^^^^^^^^^,
35MJ 396(CMA 1992)
5. The Couri of Appeals for the Armed Forces(CAAF) has recognized that the protection of
classified infbrmation can be an overriding interest that wifi be prejudiced ifthe proceedings
remain open. CAAF has also recognised that witness safety can also be an overriding interest that
can be prejudiced ifthe proceedings remain open. ^i^.v.^o^^^^^^^31M.J.849 (N-M.C.M.R.
1990),^^^^^^^^^^^35MJ 396(CMA 1 9 9 2 ) ; ^ i ^ v ^ ^ ^ ^ ^ ^ ^ , 2 M . J 1 1 6 ( C M A l ^ ^ ^
Case Specific Findings Regarding Closure:
1. Overridinginterest: The testimony sought to be introduced by John Doc has been classified at
the SECRET level and was properly classified by an authori:^cd original classification authority
applying the standards ofExccutive Order 13526. The Government has demonstrated that there is
arcasonabledangcrthat presentation ofthe classified information before the public will expose
interests relating to the national security ofthe United States that should not be divulged. Public

35082

disclosure ofthe classified infbrmation in this case reasonably could be expected to cause serious
harm to the nattonal security of the United States as described in AE477 and its enclosures. The
Govemment has met its burden ofpersuasion that closure ofthe trial during the entire testimony
ofJohn Doe is necessary to protect the overriding interest of national security.The Govemment
has also demonstrated that the safety ofJohn Doc is at legitimate risk ifhis identity is disclosed.
The safety ofJohn Doe is an additional overriding interest that will be prejudiced ifthe
proceedings remain open during his testimony.
2. NarrowlyTailorcd Closure: With this unique witness, the bifurcation oftestimony into
tmclassified and classified information is not possible because the entirety ofthe testimony for
John Doe is classified. Closure is also necessary to ensure the tme identity ofJohn Doe is not
revealed to protectJohnDoc'ssafcty. It is possible that ceriain unclassified testimony may be
elicited intermixed with the classified information. In order to narrowly tailor the closure, the
Couri has ordered the Government to prcscntaplan to expeditiously prcparcatranscript and to
conduct appropriate classification review(s)of the transcript of any testimony presented in closed
session, to include that ofJohn Doc. Unclassified poriions ofthe testimony will be released to the
public.
3. Reasonable Altematives to Closure: The Couri considered altematives to receiving classified
testimony in closed session to include: the use ofrcdactions, the Silent Witness Rule, projected
dcctronic displays, unclassified summaries or alternatives of tcstimony,and code words/names.
The altematives to classified testimony arc neither reasonable nor adequate fbr this witness. The
Couri has imposed the classification review requirement as an alternative to total closure.
4. The Couri has carefully balanced the accused'sSixth Amendment right toapublic trial and the
public'sFirst Amendment right toapublic trial against the potential serious damage to the
national security ofthe United States that would result fiom the public disclosure ofthis
infbrmation in an open session ofthis cottri-mariial and the legitimate risk to John Doe'ssafety if
hc testified publidy. The accused has not objected to the closed session.
5. The need to protect the national security infbrmation fiom disclosure and to protect the safety
of John Doe outweighs any danger ofamiscarriagc ofjustice that could arise fiom the taking of
John Doe'stestimony in dosed sessions ofthis couri-mariiaL

6. In addition to closure, to protect the safety ofJohn Doc, the Government may arrange for an
altemate secure location to elicit the testimony ofJohn Doc. Toensure the identity ofJohn Doc is
not revealed to trial pariicipants, the Couri will permit light disguise to include: colored contacts,
real or false facial hair,awig, makeup, and/or facial prosthetics. The light disguise shall be
narrowly tailored because it cannot obscure John Doe'scmotive expressions and reactions while
testifying. John Doe'sdemeanor, body language, nervousness, and facial reactions shall be visible
to the pariics and the Couri to enable full assessment ofJohn Doc'scrcdibility.
ORDER:
1. The cottri-mariial wifi be closed to the public during the testimony ofJohn Doc.

35083

2. The Government may provide fbr John Doc to testify in an altemate undisclosed sccttrc
location and in light disguise to protect his classified identity and his safety.
3. Afier John Doc has testified, the Government will expeditiously prcparcatranscript ofthe
testimony and conduct appropriate classification review(s)ofthetranscripL Arcdactcdcopy
containing any unclassified testimony wifi be released to the public. ThcGoverttmcnt'splanto
accomplish this is due to the Couri on 20 May 2013.
SoORDEREDthis21stdayofMay2013

DENISERLIND
COL,JA
Chief Judgc,l^^ Judicial Circuit

35084

INTHEUNITEDSTATESARMY
FIRSTJUDICIALCIRCUIT
UNITEDSTATESOF AMERICA

CORRECTEDCOPY

y^

ORDER TO CLOSE
CERTAINPROCEEDINGS

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

DATED:

21 May 2013

1. The Government moves the Couri to order trial proceedings closed to the public when ceriain
classified infbrmation is being introduced or is the subject ofexamination or argument to ensure
that the infbrmation specified in the Government'smotion is not disclosed to the public.
Appellate Exhibit(AE)479. OnlMarch 2013,the Couri required the Goverttment to resubmit its
request with more specificity. AE 503. On 15March 2013,the Govemment resubmitted its
request with more specificity. AE505.
2. This ruling sets forih the Couri'sfindings with respect to the poriion of the Government motion
to close the proceedings for the entire testimony of the three classified witnesses identified in AE
505 (witncssnumbers3,ll,and22). The Defense docs not object to closing the couri fbrthe
testimony ofthe three classified witnesses.
Findings ofFact:
1. The Govermnent intends to introduce classified evidence fiom the testimony ofthree classified
witnesses. No evidence has been presented that the classified information at issue is lawfttlly in
the public domain or has been officially acknowledged by the GovemmenL
2. The Couri reviewed the relevant classification reviews which cite the reasons that this
information is classified. Enclosurelto AE18.
3. The Government proffers that it seeks to introduce classified testimony fiom the three
classified witnesses that is relevant to documents that form the basis fbr spcctficattons3andl5of
ChargelL
4. The Courifindsthat the proffered testimony and accompanying classification reviews
demonstrate byapreponderance of the evidence that the identity ofthe witnesses at issue is
classified and that the testimony sought to be introduced was properly classified by an authoriz^cd
original classification authority applying the standards ofExccutive Order 13526.
5. Public disclosure ofthe classified information reasonably could be expected to cause serious
harm to the national security ofthe United States as described in the classification reviews as it
pcriains to intelligence activities, intelligence sources and methods, and the foreign relations and
foreign activities ofthe United States, the unauthorized disclosure ofwhich reasonably could be
expected to harm the national defense and foreign relations ofthe Unites States. Enclosttrelto
AE18
APPELLATEEXHIBIT^^
PAGEREFERENCED;^^
PAGE^OF
^PAGES

35085

The Law;
1 ThcCouri'sl3 April2013Rulingand Order: Interplay BetweenMRE 505,RCM 806, and
U.S.v.Grttndcn; Specificity of Classified Infbrmation; and John Doc sets fbrih the Couri'svicw
of the lawrcgarding closure of trial proceedings underthe First and Sixth Amcndmcnts,RCM
806(b)(2), andMRE 505(j)(5)
2. When the Govemment seeks closure ofcottri proceedings, the Constitutional test incorporated
by RCM 806(b)(2) requires the Govemment to demonstrate that(l)there isasubstantial
probability that an overriding interest wifi be prejudiced ifthe proceedings remain open; (2)
closure is no broaderthan necessary to protect the overriding interest; and (3)rcasonablc
altematives to closttrc were considered and fbund inadequate;. The evidence presented must be
sufficient to allowthe Couri to make casespedficfindingson the record justifying closure.
3. Where the basis foraproposedclosureofporiions ofthe trial is to protect against disclosttrc of
classified information, the Government must demonstrate that the infbrmation is properly
classified, that closureofthe proceedings during the presentation of the classified infbrmation is
necessary to protect the national security ofthe United States, and that the proposed closing is
narrowly tailored so that proceedings are closed to the absolute minimum necessary to protect the
national security information. (^^^/^^i^/^/^.^v.G^^^^^^^,2M.J.116(C.M.A.1977).
4. The Couri of Appeals fbrthe ArmedForccs(CAAF) has recognized that the protection of
classified infbrmation can be an overriding interest that wifi be prejudiced ifthe proceedings main
open. When closing proceedings to protect the national secttrity ofthe United States by
preventing disclosure of classified information, the Couri must make individualizedfindingswith
respect to the specific information the Government asscris requires protection fiom public
disclosure, identify each witness who will testify regarding the classified infbrmation, and close
the Couri only during the poriions ofthe presentation ofevidence that actually divulge the
classifiedinformation (^^^/^^i^^i^/^.^v^^^^^^^^,31MJ 849,853 ( N M C M R 1990),^^^
^^^^^^'^,35MJ 396(CMA 1992)
CaseSpecific Findings RegardingClosure:
1. Overridinginterest: The identity ofthe three classified witnesses and the testimony sought to
be introduced by the three classified witnesses has been classified at the SECRET level and was
properly dassified by an authorized original classification authority applying the standards of
Executive Order 13526. The Govemment has demonstrated that thereisareasonable danger that
presentation ofthe classified information before the public will expose interests relating to the
national security ofthe United States that should not be divulged. Public disclosure ofthe
dassified information in this case reasonably could be expected to cause serious harm to the
national security ofthe United States as described in Enclosurelto AE18. TheGovernment
demonstrated that closure ofthe trial during the entire testimony ofthe three classified witnesses is
necessary to protect the overriding interest ofnational sccttrity.

35086

2. NarrowlvTailorcd Closure: The biftircation oftestimony into unclassified and classified
information is not possible for the three classified witnesses because thdr identity is classified and
the entirety ofthe testimony involves classified infbrmation. Closure is also necessary to ensure
the tme identities ofthe witnesses are not revealed to the public. It is possible that ceriain
unclassified testimony may be elicited intermixed with the classified information. Inorderto
narrowly tailor the closure, the Couri has ordered the Government to prcscntaplan to
expeditiously prepareatranscript and to conduct appropriate classification review(s)ofthe
transcript ofany testimony presented in closed session, to include that ofthe three classified
witnesses. Unclassified poriions ofthe testimony will be released to the public.
3. Reasonable Alternatives to Closure: The Couri considered altematives to receiving classified
testimony including: the use ofredactions, the Silent Witness Rule, projected electronic displays,
unclassified summaries or altematives of tcstimony,and code words/names. The altematives to
classified testimony are neither reasonable nor adequate fbr these witnesses. The Couri has
imposed the classification review requirement as an alternative to total closure.
4. The Couri has carefully balanced the accused'sSixth Amendment right toapublic trial and the
public'sFirst Amendment right toapublic trial against the potential serious damage to the
national security ofthe United States that would result fiom the public disclosttrc ofthis
information in an open session of this cottri mariiaL The accused has not objected to closed
proceedings for the three classified witnesses.
5. The need to protect the national security infbrmation fiom disclosure outweighs any danger of
amiscarriagc ofjustice that could arise fiom the taking ofthe testimony from the three classified
witnesses in closed sessions ofthis couri-mariiaL
ORDER:
1. The couri mariial will be closed to the public during the testimony of the three classified
witnesses.
2. Afier each ofthe classified witnesses has testified, the Goverttment will expeditiously preparea
transcript ofthe testimony and conduct appropriate dassification review(s)ofthe transcript. A
redacted copy containing any unclassified testimony will be released to the public. The
Goverttment'splan to accomplish this is due to the Court on 20 May2013.
SoORDEREDthis21stdayofMay2013

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

35087

Appellate Exhihit^^^
12pages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August201^
stored in the classified
supplement to the original
Record ofTrial

35088

UNITEDSTATESOF AMERICA
y.

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

Government Request for Leave
until 10May2013toProvide
Evidence ofthe Classified Nature
of the Information Asserted as an
OverridinglnterestJustifyingClosure
andaDraft Court Order
7May2013

OnlO April 2013,the Court ordered the United States to provide e^^dence of the classified
nature ofeach specific piece ofclassified infbrmation the United States seeks to assert as an overriding
interest justifying closttreandadrafi court order specifying the evidence fbrthe specific classified
infbrmation. ^^^AE517. According to the Cotut'sScheduling Order, the United States must provide
this evidence and draft order by7May 2013. ^^^AE519.
The United States intends to provide,/^^^^^^//^, the Court withaletterfiom the Department of
State as evidence ofthe classified nature ofspecific pieces ofinfbrmation the United States seeks to
assert as an overriding interest justifying closure. This letter has been drafied and is only awaiting
signature. On7May 2013,the Department notified the United States that the govemment official who
intended to sign the letter has been occupied with "ttrgent matters" relating to ctirrent events and will be
tmable to sign the letter befbre theCourt suspense. Barring unfbreseen circumstances, the United States
anticipates that this letterwill be signed by lOMay 2013.
Amajority ofthe classified infbrmation fbr which the United States requests cotirt closure
contains the equities ofmultiple goverttment organizations. Forthisreason, theUnited States requests
to provideadrafi court order afier all the evidence ofthe classified nature ofthis inlbrmation has been
gathered and consolidated. Accordingly, the United States requests the Court grant its request to move
the suspense forthe24drafi orders and classified evidence until lOMay 2013.
This request will not necessitateadelay in the proceedings. The Defense does not obiect. On8
May 2013,the parties and the Court will be testing the reasonableness ofaltematives to closure.
Further,asuspenseoflOMay 2013 will provide the Court with more than three weeks to review the
evidence and issue any closure orders befbre trial is scheduled to commence on3June 2013.

JHUNTER WTIYTE
CPT,JA
AssistantTrial Cottnsel
Icertifythatlserved or caused to be servedatme copy of the above on Mr.David Coombs,
Civilian Defense Counsel,via electronic mail on7May 2013.

^z!^
J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel

APPELLATE EXHIBIT C5>9
PAGE REFERENCED:
PAlQE OF
PAGES

35089

Appellate Exhihit^^^
lOpages
classified
"SECRET"
ordered sealed for Reason2
^ilitar^^udge^sSeal^rder
dated20August201^
stored in the classified
supplement to the original
Record ofTrial

35090

Appellate Exhibit 536a
3 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

35091

Appellate Exhihit536h
3pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

Appellate Exhibit 5 37
i has been entered into
A the record as
Prosecution Exhibit 35

Appellate Exhibit 538
has been entered into
the record as
Prosecution Exhibit

118a

35093

Appellate Exhibit 539
has been entered into
the record as
Prosecution Exhibit

118b

35094

Appellate Exhibit 540
has been entered into
the record as

Prosecution Exhibit
1 5 3b

35095

Appellate Exhibit 541
has been entered into

the record as
Prosecution Exhibit

153a

35097

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

Evidence of the Classified Nature
of the Information Asserted as an
Overriding Interest Justifying Closure
10 May 2013

The United States requested the Court order the trial proceedings closed to the public
while certain information is being introduced or is the subject of examination or argument to
ensure that the information is not disclosed to the public. See Appellate Exhibit (AE) 479. On 1
March 2013, the Court required the United States to resubmit its request with more specificity.
See AE 503. On 15 March 2013, the United States resubmitted its request with more specificity.
See AE 505.
The United States, in part, specifically requested that the Court close the proceeding for
portions of testimony for the following twenty-four witnesses:
1. BG (Ret) Robert Carr, DIA
2. Col Julian Chestnut, DIA
3. Ms. Elizabeth Dibble, Principal Deputy Assistant Secretary, Bureau of Near Eastern Affairs,
DOS
4. RADM Kevin Donegan, Naval Warfare Integration, Pentagon
5. Mr. John Feeley, Principal Deputy Assistant Secretary, Bureau of Western Hemisphere
Affairs, DOS
6. AMB Patrick F. Kennedy, Under Secretary for Management, DOS
7. Mr. John Kirchhofer, DIA
8. AMB Michael Kozak, DOS
9. Mr. Danny Lewis, DIA
10: Mr. Randall MacRobbie, DIA
11. Mr. James McCarl, Joint lED Defeat Organization (JIEDDO)
12. MajGen Kenneth McKenzie, USMC HQ Staff
13. Mr. James Moore, DOS
14. MG Michael Nagata, Joint Staff, Pentagon
15. SSA Alexander Otte, FBI
16. AMB David Pearce, DOS
17. Mr. Adam Pearson, JIEDDO
18. Mr. H. Dean Pittman, DOS
19. AMB Stephen Seche, DOS
20. Mr. David Shaver, U.S. Dep't of Treasury
21. Ms. Cathryn Strobl, CIA
22. AMB Don Yamamoto, DOS
23. AMB Marie Yovanovitch, DOS
24. Mr. Joseph Yun, DOS
- ,, _
APPELLATE E X H l B I T l i d .
PAGE REFERENCED:
PAGE
OF
PAGES

As ^-Hi

35098

OnlOApril 2013,the Court concluded that the United States had not provided the Court
with evidence ofthe classified nature ^ r all ofthe classified inlormation at issue to allow the
Court to properly apply the Rule for CourtsMartial(RCM)806(b)(2)test and make appropriate
case-specific findings. ^^^AE517. The Court ordered the United States to provide the Court
with evidence ofthe classified natureof each specific pieceof classified information the United
States seeks to assert as an overriding interest justifying closure.
The purpose ofthis
filing is to provide the Court with this evidence.
The United States has enclosed the following evidence relating to the national security
interest lor this intormation: (l)aletterfi^omthe Department ofDefense with references to six
security classification guides (Enclosure I)^(2)aletterfi^om the Defense Intelligence Agency
with references to two security classification guides (Enclosure2)^(3)aletterfi^om the
Department ofState with references to one security classification guide (Enclosure3)^(4)
classification reviews lor the charged documents, .^^^EnclosureltoAE18(Enclosure 4)^(5)
classification reviews lor evidence the United States intends to use at trial,.^^^EnclosureltoAE
18(Enclosure 5)^ and(6) the classification reviews enclosed to the United States^ Military Rule
ofEvidence(MRE) 505(i)(2)filingdated31January 2013,^^^AE 477 (Enclosures).
For the above twenty-four witnesses, the enclosed evidence states as tollows:
1. BG (Ret) Robert Carr will testily about information that is properly classified at the SECRET
level under Executive Order 13526, .^^^ Enclosures 1,2,and4^
2. Col Julian Chestnut will testily about information that is properly classified at the SECRET
level under Executive Order 13526,.^^^ Enclosures 1,2, and 4^
3. Ms. Elizabeth Dibble will testily about intormation that is properly classified at the SECRET
level under Executive Order 13526, .^^^Enclosures3and4^
4. RADM Kevin Donegan will testily about inlormation that is properly classified at the
SECRET level under Executive Order 13526, .^^^Enclosuresland4^
5. Mr.JohnFeeley will testily about information that is properly classified at the SECRET level
under Executive Order 13526, .^^^Enclosures3and4^
6. AMB PatrickF.Kennedy will testily about information that is properly classified at the
SECRET level under Executive Order 13526, .^^^Enclosures3and4^
7. Mr. John Kirchhofer will testily about information that is properly classified at the SECRET
level under Executive Order 13526,.^^^ Enclosures 1,2,and4^
8. AMB Michael Kozak will testify about information that is properly classified at the SECRET
level under Executive Orderl3526,^^^Enclosure3^

35099

9. Mr. Danny Lewis will testily about information that is properly classified at the SECRET
level under Executive Order 13526,^^^Enclosurel^
10. Mr.Randall MacRobbie will testily about information that is properly classified at the
SECRET level under Executive Order 13526^ .^^^Enclosuresland 2^
11. Mr. James McCarl will testily about information that is properly classified at theSECRET
level under Executive Order 13526, .^^^Enclosuresland4^
12. MajGen Kenneth McKenzie will testify about information that is properly classified at the
SECRET level under Executive Order 13526, .^^^EnclosuresIand4^
13. Mr.James Moore will testify about information that is properly classified at the
CONFIDENTIAL level under Executive Order 13526,^^^Enclosures3and4^
14. MG Michael Nagata will testily about information that is properly classified at the SECRET
level under Executive Order 13526, ^^^Enclosuresland4^
15. SSA Alexander Otte will testily about information that is properly classified at the SECRET
level under Executive Order 13526, .^^^Enclosure6^
16. AMB David Pearce will testify about information that is properly classified at the SECRET
level under Executive Order 13526,^^^ Enclosures 1,3, and 4^
17. Mr.Adam Pearson will testily about information that is properly classified at theSECRET
level under Executive Order 13526, ^^^Enclosurel^
18. Mr. H. Dean Pittman will testily about information that is properly classified at the
CONFIDENTIAL level under Executive Order 13526, .^^^Enclosures3and4^
19. AMB Stephen Seche will testily about information that is properly classified at the SECRET
level under Executive Order 13526, .^^^Enclosures3and4^
20. Mr.David Shaver will testify about information that is properly classified at the SECRET
level under Executive Order 13526,^^^Enclosures4and5^
21. Ms. Cathryn Strobl will testily^ about information that is properly classified at the SECRET
level under Executive Order 13526,^^^Enclosure4^
22. AMB DonYamamoto will testily about information that is properly classified at the
SECRET level under Executive Order 13526, .^^^Enclosures3and4^
23. AMB MarieYovanovitch will testily about information that is properly classified at the
SECRET level under Executive Order 13526, .^^^Enclosures3and4^ and

35100

24.Mr. JosephYun will testily about information that is properly classified at the SECRET level
under Executive Order 13526,^^^Enclosuresl,3,and4.

J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel
6 Enclosures
1. Department of Defense letter, 7 May 2013 [classified SECRET//NOFORN] [ex parte]
2. Defense Intelligence Agency letter, 2 May 2013 [classified SECRET//NOFORN] [exparte]
3. Department of State letter, 10 May 2013 [classified SECRET//NOFORN] [exparte]
4. Classification Reviews for Charged Documents enclosed to AE 18 [previously provided]
5. Classification Reviews for Evidence enclosed to AE 18 [previously provided]
6. Classificafion Reviews enclosed to Appellate Exhibit 477 [previously provided] [exparte]

I certify that I served or caused to be served a true copy of the above on Mr. David Coombs,
Civilian Defense Counsel, via electronic mail on 10 May 2013.

^sz^
J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel

35101

Appellate Exhibit 542
Enclosure 1
14 pages
classified
"SECRET"
ordered sealed for Reason 2
and Reason 7 (government)
Military Judge's Seal Order
dated 20 August 2013
stored in the classified
supplement to the original
Record of Trial

35102

Appellate Exhibit 542
Enclosure2
^pages
classified
"SECRET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20 August 2013
stored in the classified
supplement to the original
Record ofTrial

35103

Appellate Exhibit 542
Enclosures
lOpages
classified
"SECRET"
ordered sealed for Reason2
andReason7(govemment)
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35104

Appellate Exhibit 542,
Enclosure 4
has been entered into
the record as
Appellate Exhibit 18

35105
I

Appellate Exhibit 542,
Enclosure 5
has been entered into

the record as
Appellate Exhibit 18

35106

Appellate Exhibit 542,
Enclosures
has been entered into
the record as
Appellate Exhibit 4^^

35107

UNITED STATES OF AMERICA
AeeonntingolDiseovery
and Expert Witnesses
Mannings Bradley E.
PFC^U.S.Army^
HHC^ U.S. Army Garrisons
Joint ^ase Myer-Henderson Hall
Fort Myer^ Virginia 22211

CORRECTEDCOPY
1^ May 2^1^

The purpose ofthis filing is to account for all discovery the United States produced, or
made available for inspection, to the defense and for those government witnesses the United
States may qualify as experts lAWMilitaryRuleofEvidence(MRE) 702. This accounting does
not supersede any prior filings, but instead is intended solely to provide clarity to the parties and
the Court to avoid any confusion at trial and to provide all parties and appellate courts an
accounting.
AeeonntingolDiseovery
This filing accounts for all discovery which falls within the following categories^ (1^^^^
defense discovery requests, both pre-referral and post-referral; (2)all Court rulings relating to
discovery,to include those relating to defense motions to compel discovery and all motions for
limiteddiscoverylAWMRE 505(g)(2), RuleforCourts-Martial(RCM) 701(g)(2), andMRE
505(i); and (3)all remaining material that the United States sought, and disclosed, pursuant to its
obligations underRCM701(a)(^).^^^^^^^^^^^^^^^^^^^^^^,50MJ43
and the applicable rules of discovery.
11^ tl^edel^ense is a^areol^ any ontstanding discovery ^l^iel^l^as not l^eenaeeonnted
lor l^elo^.^tl^e defense is invited to raise this issue witl^tl^e United States.
The United States produced digital copies ofmost discovery to the defense, to include the
contents ofsix administrative investigations relating to the charged misconduct, twenty-two
forensic reports, the United States ArmyCriminal Investigation Command, Federal Bureau of
Investigation, and Diplomatic Security Service investigative file relating to the accused, and
damage assessments prepared by approximately forty government organizations.
Enclosure
l^to Appellate Exhibit (AE) 339.
This discovery(unclassified and classified) was in the form ofCDsorD^Ds delivered to
Mr. Coombs and the senior military defense counsel. Attached as enclosures to this document
are seven classified and five unclassifiedD^Ds containing digital copiesofthis material. ^^^^
Enclosuresl-2(BATES 00000001 -00527^45) Duringdiscoveryproductions, there was one
gap inBATES numbers which is annotated in enclosure3.

APPELLATE EXHlBl l J ^
PAGE REFERENCED:
PAGE
OF
PAGES

35108

The United States also producedahard drive and forensic cube, containing 957 gigabytes
of discoverable information, to include forensic images of several piecesofevidence.^ i^^^
EncIosureltoAE5. This forensic information was provided to the defense to allow the defense
computer forensic experts to examine fieely all the digital media involved in this court-martial,
except the digital media associated with the raid ofUsama bin Ladin^s(UBL)compound, as
described in subparagraph (h) below.
The United States made available to the defense for inspection the remaining discovery at
their respective locations, as set forth below.
a. Office ofthe National Counterintelligence Executive(ONCIX) information. The
United States made ONCIX information, to include that which was the subject oflimited
disclosure l A W M R E 505(g)(2),available to the defense for inspection at the Office of the
DirectorofNationallntelligence(ODNI),^^^ BATES 00527049-00527110;
b. Department ofState (DOS) inlormation. The United States made DOS information,
to include the Net Centric Diplomacy database that the accused is charged with compromising,
availabletothedefenseforinspection at DOS,^^^ BATES 0052^3^7-0052704^;
c. National Security Agency (NSA)information. The United States made NSA
information available to the defense for inspection at NSA,.^^^ BATES 005271II-0052712I;
d. Central Intelligence Agency(ClA)information. The United States made CIA
information, to include that which was the subject oflimited disclosure l A W M R E 505(g)(2),
available to the defense for inspection at the prosecution^soffice,.^^^ BATES 0050^935
0050^940;
e. Damage or Impact Statements. The United States made multiple damage or impact
statements available to the defense for inspection at the prosecution^soffice,.^^^ BATES
005044^2-00504^52;
f Impeachment Material. In addition to that which has been produced to the defense, the
United States made available to the defense for inspection at the prosecution^sofficeabinder
containing material discoverable underRCM 701,Article 4^,UCMJ,and ^^^^^^^^^.^^^^^^^
^^^^^.^,405 U S 150(1972),^^^ BATES 00527122-0052722^and 00527^45;
g. RCM914MateriaL In addition to that which has been produced to the defense, the
United States made available to the defense for inspection at the prosecution^sofficeabinder
containingmaterial discoverable underRCM 914,.^^^ BATES 00527^19-00527^44;and
h. Digital Media. The United States made the forensic metadata for four digital files,
and the content oftwoofthose files, available to the defense for inspection onastand-alone
government computer. ^ ^ ^ A E 3 ^ 1 .

' The forensic cube is an electronic hard drive system that holds up to 8 terabytes of information. The
specific cube is produced by the LaCie Store and can be found at http://www.lacie.com/products/
product.htm?id= 10601 (last accessed on 7 May 2013).
2

35109

The United States understands its continuing discovery obligation and acknowledges its
requirements under Article 4^, UCMJ, the Rules for Courts-Martial, and relevant case law.
Should any additional material be produced afier the dateofthis filing, the United States intends
to submitasupplemental filing to account for any such disclosure.
Expert Witnesses
The United States may qualify the following government witnesses as experts in the
respective fields:
a. CDRYoussefAboul-Enein. The United States may qualify this witness as an expert
in Arabic language translation and Islamic extremist ideology,organizations, individuals, and
methodology;
b. BG Robert Carr (Ret). The United States may qualify this witness as an expert in
DoD intelligence priorities, coalition operations, and DoD intelligence-sharing with foreign
partners;
c. Witness^23onAE475. The United States may qualify this witness as an expert in the
organization and its operations for the information in Spccification3,Charge II;
d. PDAS Elizabeth Dibble. The United States rhay qualify this witness as an expert in
diplomatic priorities and operations in Near Eastern Affairs and Italy;
e. PDASJohnFeeley. The United States may qualify this witness as an expert in
diplomatic priorities and operations in Latin America;
f Ms. Shelia Glenn. The United States may qualify this witness as an expert in cyber
counterintelligence;
g. RADMRobertHarward. The United States may qualifythis witness as an expert in
the classification of CENTCOM inlormation;
h. Mr.PatrickHoeffel. The United States may qualify this witness as an expert in the
operation and administration ofthe CIDNE database;
i. Ms.MaryHorvath. The United States may qualify this witness as an expert in
computer forensics;
j . Dr.GlenJohnson. The United States may qualify this witness as an expert in
Department ofState systems and databases, including Net-Centric Diplomacy;
k. Mr.MarkJohnson. The United States may qualify this witness as an expert in
computer forensic examinations;
1. AMB Patrick Kennedy. The United States may qualify this witness as an expert in the
management and operations ofthe Der^artment ofState and the use ofdiplomatic reporting by
US policymakers;
3

35110

m. AMB Michael Kozak. The United States may qualify this witness as an expert in US
government efforts to foster democracy abroad and human rights concerns;
n. Witness ^^3 on AE 475. The United States may qualify this witness as an expert in
thesubjectmatteroftheinformationinSpecification3, Charge II;
o. CW5Jon Larue. The United States may qualily this witness as an expert in Apache
helicopter operations and policy;
p. Mr. Danny Lewis. The United States may qualify this witness as an expert in
counterintelligence and the value ofnatior^al security information;
q. Mr. Randall MacRobbie. The United States may qualify this witness as an expert in
Middle East terrorism;
^
r. Mr. James McCarl. The United States may qualify this witness as an expert in
Improvised Explosive Devices (lEDs)and^adversary use oflEDs in Afghanistan and Iraq;
s. DAS James Moore. The United^ States may qualify this witness as an expert in
diplomatic priorities and operations in Sou^h and Central Asian Affairs;
f Mr. Nicholas Murphy. The United States may qualify this witness as an expert in
classification ofDepartment ofState information;
u. MG Michael Nagata. The United States may qualify this witness as an expert in U.S.
defense cooperation with and military operations in Pakistan;
V. AMB David Pearce. The United States may qualify this witness as an expert in
diplomatic priorities and operations in Afgfianistan and Pakistan Affairs;
w. PDAS H. Dean Pittman. The United States may qualify this witness as an expert in
diplomatic priorities and operations in intei^ational organizations;
^

X. Witness^l07onAE475. The United States may qualify this witness as an expert in
the classification ofthe information in Specifications3and 15,Charge II;
y. CW4ArmondRouillard. The United States may qualify this witness as an expert in
the USF-IGALand its value;
z. AMB Stephen Seche. The United States may qualify this witness as an expert in
diplomatic priorities and operations in Neai^ and Eastern Asia Affairs;
aa. SA David Shaver. The United States may qualify this witness as an expert in
computer forensics;
bb. Ms. Susan Swart. The United States may qualify this witness as an expert in
Department ofState information systems and information sharing;

35111

cc. SAAlfied Williamson. The United States may qualify this witness as an expert in
computer forensics;
dd. Mr. Charlie Wisecarver. The United States may qualify this witness as an expert in
Department ofState systems and databases, including Net-Centric Diplomacy;
ee. RADLDavidWoods. The United States may qualify this witness as an expert in the
classification ofSOUTHCOM information;
f f AMB DonYamamoto. The United States may qualify this witness as an expert in
diplomatic priorities and operations in Africa;
gg. AMB MarieYovanovitch. The United States may qualify this witness as an expert
in diplomatic priorities and operations in Europe and Eurasian Affairs; and
hh. PDAS JosephYun. The United States may qualily this witness as an expert in
diplomatic priorities and operations in East Asian and Pacific Affairs.
Based on the scopeoftheir expected testimony,the United States has disclosed, or made
available to the defense for inspection, those specific facts or data that could reasonably be
identified as underlying the opinions ofthe above witnesses lAWMRE 705. Should the United
States learn of additional specific facts or data underlying their opinions during the courseoftrial
preparation, the United States will disclose that material and account for any such disclosure.
The above list does not account for any witnesses the United States may qualify as
experts in rebuttal.

^ ^ ^ ^ ^ ^

J HU^TER WHYTE
CPT,JA
Assistant Trial Counsel
3Enclosures
1. 7 Compact Discs Containing Classified Discovery
2. 5 Compact Discs Containing Unclassified Discovery
3. Memorandum for Record, dated9Aug 12
Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr.David Coombs,
Civilian DelenseCounsel,via electronic mail on 15May 2013.

J HUNTER WHYTE
CPT,JA
AssistantTrial Counsel

35112

UNITED STATES OF AMERICA
Accounting of Discovery
and Expert Witnesses
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Enclosure 1 [7 Classified Compact Discs]
10 May 2013

35113

Appellate Exhibit 543
Enclosure 1
7 DVDs
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



ν

Appellate Exhibit 543
Enclosure 2

5 CDs/DVDs
ordered sealed for Reasons 4,
Reason 5, Reason 6, and
Reason 8
Military Judge's Seal Order
dated 20 August 20 13
stored in the original Record
ofTrial

35114

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



35115

Accounting of Discovery
and Expert Witnesses

Enclosure 3

10 May 2013

35116

DEPARTMENT OF THE ARMY
u.s. ARMY MILITARY DISTRICT or WASHINGTON
210 A STREET
FORT LESLEY J. MCNAIR, oc 203195013

TO
ATTENTION OF



ANJA-CL 9 August 2012

MEMORANDUM FOR RECORD
SUBJECT: BATES Numbering Discrepancy
1. On 2 August 2012, thirty-two (32) documents were accidentally produced to the defense.

They were recalled from the defense on 7 August 2012. These numbers will not be reassigned to
new documents.

BATES - Stan BATES - End BATES Start BATES End

ManningB_O0479484 ManningB_00479489 ManningB_OO498655 ManningB__OO498657
ManningB_00479509 ManningB_O04795 12 ManningB_0O498722 ManningB_O0498725
ManningB_O04795l9 ManningB_00479522 ManningB__00498770 ManningB_0O498773
ManningB__O0479584 ManningB_O0479590 ManningB_0O49887l ManningB_0O498872
ManningB_O0479684 ManningB_00479685 ManningB_00498927 ManningB__O0498928
ManningB_00480520 ManningB_0048052 1 ManningB_OO498965
ManningB__00480625 ManningB_O0480627 ManningB_OO498998 ManningB__00499000
ManningB_00480628 ManningB_00480631 ManningB_OO499007 ManningB_004990l0
ManningB_0048067 ManningB_00480673 ManningB_O0499025 ManningB_0O499026
ManningB_00480674 ManningB_00480677 ManningB_O0499l48 ManningB_00499l48
ManningB_00480786 ManningB_OO480787 Manm'ngB_OO499l68 ManningB_00499l72
ManningB_OO48 083 ManningB_0O48 1083 ManningB_0O499399 ManningB_00499402
ManningB_0048l577 ManningB_00481583 ManningB_00499549 ManningB_00499552
ManningB_O0494338 ManningB_O0494340 ManningB_O0499563 ManningB_0O499564
ManningB_00496278 ManningB_00496282 ManningB_O0499592 ManningB_00499594
ManningB_00496463 ManningB_0O496469 ManningB__00502490 ManningB_0O5025l 1

2. The point of contact for this request is CW2 Arthur Ford, Legal Administrator at

ARTHUR ORD
CW2, A
Legal Administrator



35117

UNITED STATES OF AMERICA
Government Targeted Brief
on Relevance of Expert Testimony
Regarding Potential Damage

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

14 May 2013
FACTS

The accused is charged with giving intelligence to the enemy, in violation of Article 104,
Uniform Code of Military Justice (hereinafter "Article 104" and "UCMJ," respectively). The
accused is also charged with causing intelligence to be "wrongfully and wantonly" published in
violation of Article 134, UCMJ, eight specifications alleging misconduct in violation of 18
U.S.C. § 793(e), five specifications alleging misconduct in violation of 18 U.S.C. § 641, two
specifications alleging misconduct in violation of 18 U.S.C. § 1030(a)(1), five specifications
alleging misconduct in violation of Article 92 of the UCMJ. See Charge Sheet.
The accused pleaded guilty by substitutions and exceptions to Specificafions 2, 3, 5, 7, 9,
10, 13, 14 and 15 of Charge II. See Appellate Exhibit CDLXIV. The accused did not plead
guilty inter alia, to Specifications 4, 6, 8, 11, 12, and 16 of Charge II. See id.
On 8 May 2013, the Court asked the United States to brief the following issues: (1)
relevance of expert testimony on context and circumstances surrounding charged documents; (2)
relevance of expert testimony on prospective damage; and (3) whether the Defense is entitled to
rebut any such expert testimony. The Court requested the United States consider the questions
with and without consideration of the guilty plea.
LEGAL AUTHORITY AND ARGUMENT
Evidence offered to prove that the accused had reason to believe that the compromise of
the charged information could injure the United States and that the charged information is of a
value greater than $1,000.00 entails specialized knowledge and is therefore appropriate for
expert opinion testimony. Evidence that that the charged information related to the national
defense and that intelligence received by the enemy is true, in part, however, does not require
specialized knowledge and thus does not require expert opinion testimony.
I. EFFECT OF PLEA ON GREATER CHARGES
A. Accused's Plea Excepts Elements
The accused has been charged with violations under Article 134, UCMJ, inter alia, 18
U.S.C. §§ 641, 793(e) and 1030(a)(1). See Charge Sheet. For § 793(e) specifications, the
accused has not pleaded guilty, inter alia, to "information relating to the national defense" or
"with reason to believe such informafion could be used to the injury of the United States or to the
APPELLATE EXHIBIT 5 ^ .
PAGE REFERENCED:
PAGE
OF
PAGES

35118

advantage of anyloreign nation" by excepting those phrases.
Appellate Exhibit CDLXIV.
The defense has also pleaded not guilty to Specificationllof Charge 11 in its entirety. For^
1030(a)(1),the accused has not pleaded guilty,^^^^^^^^^^^, to "reason to believe that such
inlormation so obtained could be used to the injury of the United States, or to the advantageof
any foreign nation" (hereinafter "reason to believe") by excepting the phrase.
The
"reason to believe" language for the ^^ 793(e)andl030(a)(l)specifications employs the same
language for the willft^l transmission of classified information; however,^ 793(e)also charges
that the information is national defense information.
Charge Sheet. Accordingly,similar
types of evidence will prove the "reason to believe" element for both^ 793(e)and^l030(a)(l).
Appellate Exhibit CDX.
Here, the accused has pleaded guilty to lesser-included offenses ofthe greater charged
offenses. The proper test for determining whether one offense constitutesalesser included
offenseof another is the "elements test" from ^^^^^^^^v ^^^^^^^^^^^^,489U.S.705,716-17
(1989); ^^^^^^^^^^^.^v^^^^.^,68MJ 465,469-70(CAAF2010).Undertheelements test,
"oneoffense is not necessarily included in another unless the elements ofthe lesser offense area
subset ofthe elementsofthe charged offense.".B^^^^, 68 M.J.at 469-70. "^Tjhe elements test
does not require that the twooffenses at issue employ identical statutory language. Instead,after
applying the normal principlesof statutory consfruction,^theCourt^asks whether the elements of
the alleged ^lesser-included offense^areasubset ofthe elements for the charged offense."^^^^^^^
^^^^^.^v.^^^^^^,70 M.J.l,2(C.A.A.F.2011)(citation and internal quotation marks omitted).
In the instant case, the accused'spleaded offenses constitute lesserincluded offenses because all
elements save the excepted language remain the same.
Furthermore, the accused excepted phrases that change the gravamen ofthe offense,
thereby making it qualitatively distinct from the greater charged offense, ^^^^^^^^^^^^^^^.^v.
69 M.J.127,135 (C.A.A.F2010)(upholdingtherulingthatsubstitutingthe phrase
"government information not for release" for"classified documents" made the plea irregular).
The "reason to believe" language excepted ftom both the^ 793(e)and^l030(a)(l)
specifications representsaheightened.^^^^^^^^^ requirement. Appellate ExhibitDXV(citing
^^^^^^ ^^^^^.^v^^.^^^,445 F.Supp.2d 602,625-26 (ED Va 2006)) Strikingthe excepted
language also removes the element of"information relating to the national defense." This
excepted element also heightens the severity ofthe charged offense and transforms the natureof
the information at issue. The lack ofthe "reason to believe" element decreases the maximum
punishment ftoml0yearsto2years per offense.
Appellate Exhibit CDLXIV. Therefore,
the accused'spleas are lesser forms ofthe charged offenses.
B. Accused'sStatements During Providence Inquiry Cannot Be Used to Prove Excepted
Elements Because Excepted Elements Are not Common to Pleaded Offenses and Charged
Offenses
Upon pleading guilty,the accused relinquished his
right,
against sell^
incrimination only with respect to the lesser-included offenses to which he pleaded guilty.
Appellate Exhibit CDXCV (a) ("By your plea of guilty,you give up three importantrights,but
you give up theserightssolelywith respect to the offenses to which you have pled guilty.");
Appellate Exhibit CDXCV(b). ^here the accused has not waived his right to self-incrimination.

35119

the statements from the providence inquiry may not be used to prove greater offenses. See
United States v. Resch, 65 M.J. 233, 237 (C.A.A.F. 2007) (holding that it was materially
prejudicial error to use accused's statements from providence inquiry for greater offense in
contravention of express waiver); United States v. Flores, 69 M.J. 366, 369-70 (C.A.A.F. 2011)
("A military judge who advises an accused that she is waiving her right against selfincrimination only to the offenses to which she is pleading guilty must not later rely on those
statements as proof of a separate offense."). Although the accused pleaded to lesser-included
offenses, the excepted elements are not common between the lesser-included offenses and the
charged greater offenses. During the accused's providence inquiry, the accused stated that the
documents he compromised were classified. The accused proffered this fact with respect to the
elements to which he pleaded, not "reason to believe" or national defense information elements.
Accordingly, the United States must prove the excepted elements without relying on the
accused's statements regarding classification during the providence inquiry to establish the
greater offenses. See United States v. Cazatt, 29 C.M.R. 521, 522-23 (C.M.A. 160).
Specifically, the United States cannot rely on any statement made by the accused with respect to
classification and must prove the related facts independently and completely apart from the
accused's statements during the providence inquiry.
C. Requirements of Proof for Greater Elements
To prove "reason to believe," the United States must demonstrate that the accused was
aware or should have been aware of the potential for the information to be used to the injury of
the United States. See United States v. Diaz, 69 M.J. 127, 133-34 & n. 4 (C.A.A.F 2010). By
itself, classificafion is insufficient to prove "reason to believe;" however, classificafion is a factor
in proving "reason to believe." See id. at 133 ("[CJlassification alone does not satisfy the mens
rea requirement of § 793(e)."). Moreover, classification is not the only means by which
information can be shown to be the kind that could be used to the injury of the United States.
See id.
Factors demonstrating "reason to believe" include, inter alia, classification, tesfimony
describing what injury might ensue from compromise of the informafion, accused's training,
accused's acknowledgement of a non-disclosure agreement, accused's compromising the
information in a clandestine manner. See id. Additionally, the factfindermay consider the
nature of the information in deciding "reason to believe." See Appellate Exhibit CDX.
Moreover, classified markings fail to prove that the information could be used to the injury of the
United States; the information marked classified must also properly qualily for classification.
See id. Consequently, testimony by a director of an intelligence group demonstrating the
potential injury that might ensure from public disclosure of classified information may establish
that the information could be used to the injury of the United States. Id. at 133 n. 4." Thus,
"reason to believe" requires evidence both that the information could be used to the injury of the
United States and that the accused was aware of the potenfial for the information to be used to
injury of the United States.

' The witness was a civilian employee of the Defense Intelligence Agency, serving as the Director of the Joint
Intelligence Group, Joint Task Force GTMO.

35120

Information that relates to the national defense "includes all matters that directly or may
reasonably be connected with the defenseofthe United States, against any ofits enemy."
^^^^^^^^^^^^v^^^^^^^,844F2dl057,1071 (4th Cirl988);Appellate Exhibit
term "national defense" is broad and refers to the United States military and naval establishments
and to all related activities ofnational preparedness. ^^^^^^^.^^^,844F.2datI071;Appellate
Exhibit CDX; .^^^^^.^^^^^^^^^^^^^.^v.^^^^^^,312U.S.19,24-25 (analyzing the legislative
history ofthe Espionage Act). Factors for the factfinderto determine national defense
information include,
the accused'sexperience and expertise, position and MOS,any
instructions and training received, classification markings on the information, and the basis for
classification. ^^^^^^^^^^^,844F.2d atl073-74(holding "relating to the national defense" not
tobeconstitutionallyvague). Therefore, to prove that information relates to the national
defense, the United States must prove(l)that the disclosure of the material would be potentially
damaging to the United States or might be usefiil to an enemy ofthe United States; and (2)that
the documents are closely held because they have not been made public. ^^^^^^^.^^^,844F.2d
atl071-72; Appellate Exhibit CDX
lL"REASONTO BELIEVE" EVIDENCE APPROPRIATE FOREXPERTTESTIMON^
BASEDON SPECIALISED ^NO^LEDGE
Relevant evidence is evidence having anytendency to make the existenceof any fact that
isof consequence to the determination of the action more or less probable than it would be
without the evidence. Military Rule ofEvidence (hereinafter "MRE") 401. Relevant evidence is
necessary when it is not cumulative and when it would contribute toaparty'spresentation ofthe
case in some positive way inamatter at issue. The militaryjudge has the initial responsibility to
determine whether evidence is relevant under MRE 401.
^^^^,69 M.J.236
(C.A.A.F. 2010). Elements ofcharged offenses are relevant and defined by the specification.
Rule for Courts-Martial 307(c)(3)(definingaspecificationasaplain, concise, and definite
statement ofthe essential facts constituting theoffense charged).
A. Expert Opinion Appropriate for Specialized I^owledge
Relevant evidence may be provided by an expert witness. ^^^^ MRE 702. Awitnessmay
testify as an expert ifhe has scientific, technical,or other specialized knowledge that will assist
the factfinder,and the witness is qualified as an expert by virtue ofknowledge, skill, experience,
training, or education. ^^^^^^^i^^^^^.^v^^^^^^^,46M.J.221,224(C.A.A.F.1997)(citing^^^^^^
^^^^^.^v.^^^^^,30M.J.328,330(C.M.A.1990)). An expert witness has substantive knowledge
"beyond the ken ofthe average court member" and need not be "an outstanding practitioner, but
only someone who can help the^fact finders." (citations and internal quotation marks
omitted). Accordingly,the test for admissibilityof expert testimony is whether the factfinderis
qualified without the expert testimony to determine the particular issue intelligently and to the
best possible degree without enlightenment ofthe expert with specialized understanding ofthe
subject. ^^^^^^^^^^^^.^v.^^7^^^^^.^,61M.J.163,167 (C.A.A.F.2005)(citing^^^^^^^^^^^^^
^^^.^^^,36MJ 392,398(CM.A. 1993). The test is not whetherafactfinder"could reach any
conclusion without expert help." ^^.(emphasis in original). Tomakeadetermination regarding
admission of expert testimony,the military judge considers(l)the qualifications of the expert;
(2)the subject matter ofthe expert testimony; (3)the basis for the expert testimony;(4)the legal

35121

relevanceoftheevidence;(5) the reliability ofthe evidence; and(6) that the probative valueof
the expert^s testimony outweighs the other considerations outlined in MRE 403. ^^7^^^^.^, 61
M.J.atl66(citing^^^.^^^,36MJat397)
In the instant case, the United States will prove the accused'sawareness of the potential
for the information to be used to the injury ofthe United States,
by demonstrating his
training regarding classified information, his voluntary consent toanon-disclosure agreement,
classified markings on the classified information, and the secretive manner in which he
compromised classified information. Additionally,the United States will prove that the
information could be used to the injury ofthe United States and was therefore properly
classified,
by showing the bases for classification ofthe information via testimony
regarding the contentsofthe document and the manner in which the contents could be used to
the injury ofthe United States via opinion testimony.
B. Classification Determinations Require Specialized I^owledge
Classification authority,including the authority to declassify information, belongs onlyto
Exec. Order No.13526 ^
an original classification authority(OCA)and his successors.
3.1(b). The decision, bases, and propriety ofadecision to classify information are "not within
the realm of an ordinary lay witness" because classification decisions are based on information
unknown toalaywitness. C^^^^^^^^^^^^^.^^^^^^^^^^^,664F.3d467,512 (5thCir.2011)
(deciding that testimony about thcTreasuryDepartment'spractice in designating terrorist
organizations is specialized knowledge). Any determination ofclassification by an OCA
requires an opinion regarding potential injury ftom unauthorized disclosureofthe information
that is relevant to the elements of"reason to believe" and national defense information.
^^^^^^^^^^^^.^v.^^^^^^^,584F.2d 36,41(4thCir.l978)(discussing the necessity of classifying
information as it currently bears on the national defense).
Classification decisions contemplate the data known to the OCA. These data do not
entirely fall within the fOurcomersofaclassified document. An OCArelies on experience and
context,which includes surrounding circumstances, history,and other classified information to
form the ultimate opinion that releaseof specified information could reasonably be expected to
cause injury to the United States. The specialized knowledge relied upon to make classification
determinations necessarily falls outside the realm ofalay witness and fact finder. The contents
and classification determinationsofDepartment ofState cables require specialized diplomatic
expertise and are affected by information not included in the cable. Additionally.classification
determinations about the potential harm ftom unauthorized compromiseof significant activity
reports ofthe Combined Information Data Network Exchange Afghanistan (hereinafter "CIDNEA") require specialized knowledge and executive authority.
For instance and in contrast, the contents ofsignificant activity reportsofCIDNE-A
would be readilyunderstood by any member of the armed forces with the knowledge that the
reports were produced during wartime in Afghanistan,awidely-known fact appropriate fOr
judicial notice, i^^^ ^^^^^^^^^v.^^^.^^,819F.2d 238,239(9thCir.l987)(takingjudicial notice
importance ofFilipino guerrillas in the liberation ofthe Philippines as military history). Still,
contextual evidence is relevant toadetermination of national defense information because the

35122

number ofdetails increase sensitivity. For example,agrid location becomes more sensitive
when associated with troop movements ataspecific time.
Likewise, subject matter expert testimonywill be based onfirsthandknowledge and
personal experience. Department ofState subject matter witnesses will testify regarding their
personal knowledge in their area of expertise. United States Central Command (hereinafter
"CENTCOM") subject matter witnesses will testify regarding their personal observations ofthe
contents of documents. CENTCOM subject matter experts will additionallytestify about their
findings regarding the content'sapparent classification in accordance with experience and
classification guides. However, the testimony ofasubject matter expert does not conclusively
establish the proper basis foraclassification determination because that decision is within the
authority of an OCA. The OCA relies on subject matter experts,who have specific knowledge,
to make classification determinations. Therefore, an OCA'stestimony is not cumulative witha
subject matter expert'stestimony. Moreover, the context surroundingasubject matter expert's
testimonypresentsamore accurate picture for the bases of classification and should thus be
presented to the fact finder. lmportantly,the title "subject matter expert" applies to individuals
who will not necessarily be qualified as experts under MRE 702. Instead, the title of"subject
matter expert" applies to witnesses focusing onaspecific area of charged information and could
be qualified as experts under MRE 702.
Indeed, courts recognize the specialized knowledge and grant great deference to
classification determinations. ^^^,^.^.,^^-.^^^^^^^,664F.3d. at 523(declining to "secondguess"
the Govemment'sdetermination of what is properly classified), ^hereawitness will testify
about the details ofinformation or the contents ofadocument,alay opinion is appropriate;
however, although not required, expert testimony isaproper method to establish the ultimate
conclusion ofaclassification decision because that decision requires specialized authorization
and knowledge.
at514(stating that opinion testimony foralaywitness is improper
where the opinion is not based onfirst-handobservations).
C. ValuationEvidence Also Requires Specialized ^owledge
Similarly,valuation evidence also requires specialized knowledge appropriate for expert
testimony. The United States will demonstrate valuation by presenting evidence ofthe
information'svalueinathieves'market. This opinion is based on unique, specialized
knowledge and experience ofan intelligence professional and is unknown to the average fact
finder. The thieves'market requires demonstration of what typesofinlormation are valuable to
foreign adversaries. The evidence isft^rtherstrengthened by an explanation ofwhy the
inforiTiation is valuable. Moreover, anytypeof evidence supporting valuation necessarily
requires discussion of content and context. The thieves'market involves the motives and
resources of foreign adversaries. Furthermore, the United States will present evidence about the
systems required to create, maintain, and protect the information. This technical and financial
information is also beyond the ken ofan average fact finder. Thus, an expert is appropriate for
presentation ofvaluation evidence and discussion ofits context.

35123

D. Evidence Not Dependent on ExpertTestimony
Contrastingly,an expert is not required, but could be used lOr evidence of whether
intelligence is true, in part to prove Articlel04. Here, the contentsofCIDNE-Aanda
Department ofState Net-Centric Database (hereinafter "NCD") cable constitute intelligence.
Identifying the contents ofthe NCD cable and CIDNE-A documents requires testimony about
firsthand knowledgeofhow the inlormation in the documents is collected and used. Evidenceof
firsthand knowledge does not require specialized knowledge and is appropriate foralay witness.
The creation ofinformation in documents and validation of that information isanormal
government and military activity. In addition, expert testimony is not required to prove that the
accused'sacts were prejudicial to good order and discipline. Accordingly,evidenceofwhether
intelligence received bythe enemyis true, in part, or whether any ofthe accused'sacts were
prejudicial to good order and discipline does not require, but could include, expert opinion
testimony.
III NO ACCRUAL OF PREJUDICE FROMRELEV ANT EXPERTTESTIMONY
Otherwise admissible expert testimony may be barred where the danger of unfair
prejudice ftom the testimony outweighs its probative value. ^^^^^^^^^^^^^^^.^^.^^^^.^,68 M.J.
341,347 (CAAF2010)(citing^^^^^^^^^^^^^^^^^,36MJ150,161(CMA 1992)
Evidence that entices the factfinderto declare guilt "onaground different ftom proof specific to
the offense charged" risks creating unfair prejudice. ^^^^^^^^^^^^^^^.^v.^^^^^.^,70M.J.248,
254(CAAF2011)(citing^^^C^^^^^^^^^^^^^^^^,519US 172,180(1997)^
intent Federal Rule ofEvidence 403).
Here, OCA expert testimony describing the potential injury stemming from compromise
ofclassified and national defense information is not prejudicial because it is specialized
knowledge directly relevant to the greater offense. The accused has not pleaded guilty to the
elementsofreason to believe or national defense information for any specification. Although the
accused is free to offer an alternative plea, the alternative plea does not foreclose the presentation
of relevant evidence. C^.^^^^.^, 69 M.J at I35(noting that while the accused isfreeto offer an
alternative plea, he is not entitled to design his own offense). BecauseanOCA'sopinion creates
abasis for classification and the OCA relies on specialized knowledge in making that
determination, an OCA should testily as an expert. The risk that the factfinderwill overestimate
or emotionallyreact to the expert testimony is minimized where the factfinderisamilitary
judge. Additionally,context will contribute onlyto the probative force of expert testimony
because the context presented will the typeof context used to make classification decisions.
^^^^^^^^^^^^^v.C^^^^^^,21 M.J.59,64(C.M.A.1985)(stating that the factfindermay rely on
reliable evidenceof credibility).
IV DEFENSEALSO ENTITLED TO RELEVANT EXPERTTESTIMONY
Finally,given the foregoing, the Defense is entitled to present relevant evidence
regarding the excepted elements. As discussed
classification and valuation testimony
depends on specialized knowledge. Accordingly,the Defense is also entitled to present its own
expert witnesses on the issues of"reason to believe,"national defense information, and

35124

valuation. In this case, the Defense has already demonstrated its intent to present evidence
through expert testimony,such as Ambassador Galbraith, Colonel (Retired) Davis, Mr. Ganiel,
Mr Hall, among others^^^ Appellate Exhibit CCCXLIV.

J||kivfk
ALEXANDER S. VON ELTEN
CPT, JA
Assistant Trial Counsel
I certify that I served or caused to be served a true copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 14 May 2013.

lv^
t

ALEXANDER S. VON ELTEN
CPT, JA
Assistant Trial Counsel

35125

Appellate Exhibit 545
27 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
















Unmarked redactions were present when Army received this document
35126

UNITED STATES OF AMERICA

Defense Notice of Intent

to Use Classi?ed Information
8. Proposed Alternatives to
Court Closure

MANNING, Bradley, E., PFC

U.S. Army,

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

Fort Myer, Virginia 22211

CORRECTED COPY
13 May 2013



1. (U) This notice is based on the defense's original filing of its intent to use classified evidence under
MRE dated 22 February 2013 (AE 490). The purpose of this filing is to provide the Government
and the Court with greater factual specificity and identify, where appropriate, the alternatives to Court
closure that will be used in order to adduce the testimony from the particular witness in open court,
rather than a closed session. Nothing in this document should be read as being inconsistent with the 22
February notice. In the event of a conflict, the defense reserves the opportunity to make an additional
filing in order to clarify the nature of the information.

2. (U) Both parties have described for the Court alternatives to closure. See pages 2-5 of AE 479
(Government's original Grunden filing) and pages 2-3 of AE 489 (Defense Response to Government's
Original Grunden filing). The alternatives will only be discussed below in the context of how they apply
to certain portions of classified evidence that will be discussed during the cross examinations of the
identified Government witness.

3. (U) The Government has indicated that it will call approximately 141 witnesses. The testimony of
seventy?three (73) of those witnesses will involve classified information. It wishes to close the Court to
hear the testimony of twenty-eight (28) witnesses. The defense is certainly willing to work with the
Government in order to ensure that the alternatives it uses for the remaining forty-five (45) witnesses is
consistent for the sake of the witnesses and the Court.



S. (U) The defense provides the following notice with respect to those witnesses who the defense
believes will testify in open court regarding USCENTCOM information:

A. (U) RADM Kevin Donegan.






PAGE

A: SW6

B. (U) Mr. Jacob Grant.

I. (U) Information. The defense does not believe that any classified testimony will be elicited
from Mr. Grant during cross examination.

ll. (U) Alternatives. This witness is not a court closure witness. The parties have tentatively
agreed to stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

C. (U) Mr. Bert Haggett.

l. (U) information. The defense does not believe that any classified testimony will be elicited
from Mr. Haggett during cross examination.

ll. (U) Alternatives. This witness is not a court closure witness. The defense is happy to work
within the alternatives developed by the Government to ensure consistency for the witness and the
Coun.

D. Robert Harward.



35128

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to

stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

E. (U) LT Thomas Hoskins.

II. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. if that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

F. (U) MajGen Kenneth McKenzie.

II. (U). Alternatives. The defense believes that MajGen McKenzie may testify in open court with
the use of a syllabus or code words. The general information he provides may be discussed in open

3

35129






This witness is conversant with classified information and, if properly prepared, will
avoid the accidental disclosure of classified information.

G. (U) Mr. Ken Moser.

I. (U) Information. The defense does not believe that any classified testimony will be elicited
from Mr. Moser during his cross examination.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. if that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency forthe witness and the Court.

H. (U) MG Michael Nagata.

ll. (U) Alternatives. The defense believes that MG Nagata may testify in open court with the use
of a syllabus or code words. The general information he provides may be discussed in open court.







This witness is conversant with classified information and, if properly prepared, will avoid the
accidental disclosure of classified information.

I. (U) Mr. Martin Nehring.



35130

II. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to

stipulate to the testimony of this witness. if that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

1. (U) Ms. Jacqueline Scott.

I. (U) information. The defense does not believe that any classified evidence will be elicited
from Ms. Scott during her cross examination.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. if that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

K. (U) Mr. Louis Travieso.



ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

L. (U) Mr. Charles Vankleek.

l. (U) Information. The defense does not believe that any classified evidence will be elicited
from Mr. Vankleek during his cross examination.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentativeiy agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

6. (U) The defense provides the following notice with respect to those witnesses who the defense
believes will testify in open court regarding Department of State information:

A. (U) Ms. Elizabeth Dibble.



35131

II. (U) Alternatives. The defense believes that Ms. Dibble may testify in open court with the use
of a syllabus or code words.




This witness is conversant with classified information and, if properly prepared, will avoid the
accidental disclosure of classified information.

8. (U) Mr. John Feeley.

35132

ll. (U) Alternatives. The defense believes that Mr. Feeley may testify in open court with the
use ofa syllabus or code words. The general information he provides may be discussed in open court.




if properly prepared, will

This witness is conversant with classified information and,
avoid the accidental disclosure of classified information.

C. (U) Mr. Glen Johnson.

I. (U) Information. The defense does not believe that any classified evidence will be elicited
from Mr. Johnson during his cross examination.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by theGovernment to ensure consistency for the witness and the Court.

D. (U) AMB Patrick F. Kennedy.

II. (U) Alternatives. The defense believes that AMB Kennedy may testify in open court with the
use of a syllabus or code words. The general information he provides may be discussed in open court.




This witness is conversant with classified information and, if properly prepared, will
avoid the accidental disclosure of classified information.

E. (U) AMB Michael Kozak.

35133



II. (U) Alternatives. The defense believes that AMB Kozak may testify in open court with the use
of 3 Syllabus or code words. The general information he provides may be discussed in open court. The
specific problems and processes can be elicited through the use of code words or a syllabus. This
witness is conversant with classified information and, if properly prepared, will avoid the accidental
disclosure of classified information.

F. (U) Mr. James Moore.



II. (U) Alternatives. The parties have tentatively agreed to stipulate to the testimony of this
witness. If a stipulation fails, the defense believes that Mr. Moore may testify in open court with the use
of a syllabus or code words. The general information he provides may be discussed in open court.




This witness is conversant with classified information and, if properly prepared, will avoid the
accidental disclosure of classified information.

G. (U) Mr. Gerald Mundy.

I. (U) Information. The defense does not believe that any classified testimony will be elicited
from Mr. Mundy during his testimony.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

H. (U) Mr. Nicholas Murphy.
-

35134

II. (U) Alternatives. This is not a court closure witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

I. (U) AMB David Pearce.



ll. (U) Alternatives. The defense believes that AMB Pearce may testify in open court with the
use of a syllabus or code words. The general information he provides may be discussed in open court.
The specific effects in any particular country can be described through the use of code words or a
syllabus.

This
witness is conversant with classified information and, if properly prepared, will avoid the accidental
disclosure of classified information.

J. (U) Mr. H. Dean Pittman.



ll. (U) Alternatives. The parties have tentatively agreed to stipulate to the testimony of this
witness. if that fails, the defense believes that Mr. Pittman may testify in open court with the use of a
syllabus or code words. The general information he provides may be discussed in open court. The
specific effects in any particular country or organization can be paired with the effect to fully describe
the potential harm from the leak. This witness is conversant with classified information and, if properly
prepared, will avoid the accidental disclosure of classified information.

K. (U) SA Ronald Rock.

35135

I. (U) Information. The defense does not believe that any classified testimony will be elicited
from SA Rock during his testimony.

II. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness for both merits and sentencing. If that fails, the defense is
happy to work within the alternatives developed by the Government to ensure consistency for the
witness and the Court.

L. (U) AMB Stephen Seche.



ll. (U) Alternatives. The parties have tentatively agreed to stipulate to the testimony of this
witness. If that fails, the defense believes that AMB Seche may testify in open court with the use of a
syllabus or code words. The general information he provides may be discussed in open court.



This witness is conversant with classified information and, if properly prepared, will avoid the
accidental disclosure of classified information.

M. (U) Ms. Susan Swart.

I. (U) Information. The defense does not believe that any classified testimony will be elicited
from Ms. Swart during her testimony.

ll. (U) Alternatives. This is not a court closure witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

N. (U) Ms. Tasha Thian.

I. (U) Information. The defense does not believe that any classified testimony will be elicited
from Ms. Thian during his testimony.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

0. (U) Mr. Charlie Wisecarver.

I. (U) Information. The defense does not believe that any classified testimony will be elicited
from Mr. Wisecarver during his testimony.

10

35136

II. (U) Alternatives. This is not a court closure witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

P. (U) AM8 Don Yamamoto.



II. (U) Alternatives. The defense believes that AMB Yamamoto may testify in open court with
the use of a syllabus or code words.

This witness is conversant with classified information and, if properly prepared, will
avoid the accidental disclosure of classified information.



Q. (U) AMB Marie Yovanovitch.



II. (U) Alternatives. The parties have tentatively agreed to stipulate to the testimony of this
witness. If that fails, the defense believes that AM 8 Yovanovitch may testify in open court with the use
of a syllabus or code words. The general information she provides may be discussed in open court.



This witness is conversant with classified information and, if properly prepared, will avoid the
accidental disclosure of classified information.

R. (U) Mr. Joseph Yun.



11

ll. (U) Alternatives. The parties have tentatively agreed to stipulate to the testimony of this
witness. If that fails, the defense believes that Mr. Yun may testify in open court with the use of a
syllabus or code words. The general information he provides may be discussed in open court.



This witness is conversant with classified information and, if properly prepared, will avoid the
accidental disclosure of classified information.

7. (U) The defense provides the following notice with respect to those witnesses who the defense

believes will testify in open court regarding Defense Intelligence Agency information:

A. (U) Commander Youssef Aboul-Enein.



B. (U) BG Robert Carr.





35138

ll. (U) Alternatives. The defense believes that BG Carr may testify in open court with the use of
a syllabus or code words. The general information he provides may be discussed in open court. He will
be able to associate organization, effect, and location using code words or a syllabus. This witness is
conversant with classified information and, if properly prepared, will avoid the accidental disclosure of
classified information.

C. (U) Colonel Julian Chesnutt.



D. (U) Mr. John Kirchhofer.



35140

II. (U) Alternatives. The defense believes that Mr. Kirchhofer may testify in open court with the
use of a syllabus or code words. The general information he provides may be discussed in open court.
The specific effects can be listed separately with the organization that has suffered a particular type of
damage. Mr. Kirchhofer will be able to match the classified effects with the appropriate organization.
This witness is conversant with classified information and, if properly prepared, will avoid accidental
disclosure of classified information.

E. (U) Mr. Randall MacRobbie.

ll. (U) Alternatives. The defense believes that Mr. MacRobbie may testify in open court with the
use of a syllabus or code words. The general information he provides may be discussed in open court.
The speci?c effects achieved can be described with the use of a syllabus that lists the organization, the
particular effect, and the country involved. This witness is conversant with classified information and, if
properly prepared, will avoid the accidental disclosure of classified information.

F. (U) Mr. Danny Lewis.

35141

I.



8. (U) The defense provides the following notice with respect to those witnesses who the defense
believes will testify in open court regarding Joint Task Force Guantanamo information:

A. (U) Mr. Jeffery Motes.



II. (U) Alternatives. This witness is not a closed court witness. The parties have tentatively
agreed to a stipulation for the testimony this witness will give during the merits portion of the trial. If
that fails, the defense is happy to work within the alternatives developed by the Government to ensure
consistency for the witness and the Court. For sentencing, we will work within the alternatives
developed by the Government to ensure consistency for the witness and the Court.

8. (U) RADL David Woods.



II. (U) Alternatives. This witness is not a closed court witness. The parties have tentatively
agreed to a stipulation for this witness. If that fails, the defense is happy to work within the alternatives
developed by the Government to ensure consistency for the witness and the Court.

16

9. (U) The defense provides the following notice with respect to those witnesses who the defense
believes will testify in open court regarding Joint Improvised Explosive Device Defeat Organization
(JIEDDO) information:

A. (U) Mr. James McCarl.

B. (U) Mr. Adam Pearson.

10. (U) The defense provides the following notice with respect to those witnesses who the defense
believes will testify in open court regarding Department of Defense Law Enforcement information:

17

35142



35143
A. (U) Mr. Mark Johnson.

I. (U) Information. Mr. Johnson will discuss his experience as a computer forensic specialist in
law enforcement. He will then discuss his involvement in this particular case. He will discuss the
process he used to examine the digital media he was given to analyze. Mr. Johnson will use any reports
he drafted to describe the nature of the forensic analysis performed as well as the computer forensic
tools used.

ll. (U) Alternatives. This is not a closed court witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

8. (U) SA Mark Mander.



ll. (U) Alternatives. This is not a closed court witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

C. (U) SA Calder Robertson.



II. (U) Alternatives. The parties have tentatively agreed to stipulate to the testimony of this
witness. Furthermore, this is not a closed court witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

11. (U) The defense provides the following notice with respect to those witnesses who the defense
believes will testify in open court regarding non?Department of Defense Law Enforcement information:

A. (U) SA Troy Bettencourt.



35144

ll. (U) Alternatives. This is not a closed court witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

B. (U) SA David Shaver.

Otherwise, SA Shaver can be
treated like the other computer forensic investigators and handled with whatever alternative the
Government uses with those witnesses.



C. (U) Ms. Mary Horvath.

I.



ll. (U) Alternatives. The parties have tentatively agreed to stipulate to the testimony of this
witness. Furthermore, this is not a closed court witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

12. (U) The defense provides the following notice with respect to those witnesses who the defense
believes will testify in open court regarding Department of Defense Personnel or Department of Defense
Contractors information:

A. (U) Mr. Peter Artale.

I. (U) Information. The defense does not believe that any classified testimony will be elicited
from Mr. Artale during his cross examination.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. if that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

B. (U) Mr. Steve Buchanan.

I. (U) Information. Mr. Buchanan will discuss his familiarity with lntelink and the process by
which lntelink logs are created internally in the database. He will discuss his interpretation of the

19




35145

Intelink logs in this particular case. He will also discuss his involvement in this case, how he was directed
to participate, and the form of his report when it was sent back to his superiors.

ll. (U) Alternatives. The parties have tentatively agreed to stipulate to the testimony of this
witness. Furthermore, this is not a closed court witness. If the proposed stipulation fails, the defense is
happy to work within the alternatives developed by the Government to ensure consistency for the
witness and the Court.

C. (U) Mr. Wyatt Bora.



ll. (U) Alternatives. The parties have tentatively agreed to stipulate to the testimony ofthis
witness. Furthermore, this is not a closed court witness. If the proposed stipulation fails, the defense is
happy to work within the alternatives developed by the Government to ensure consistency for the
witness and the Court.

D. (U) Mr. Sean Chamberlain.

I. (U) Information. The defense does not believe that any classified testimony will be elicited
from Mr. Chamberlain during his cross examination.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

E. (U) Dr. Michael Collins.

I. (U) Information. Dr. Collins will discuss the basic framework of Centaur and its creation of
internal activity logs. Dr. Collins will also discuss his involvement in this case (eg. who tasked him to
help, the typical method that these sorts of requests are handled, and how it was handled in this case).
Finally, Dr. Collins will discuss his own interpretation of the handling of the logs as well as how this
interpretation identifies PFC Manning's activity on the server.

II. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

F. (U) Mr. Jim Downey.

I. (U) Information. Mr. Downey will discuss the basic framework of Centaur and its creation of
internal activity logs. Mr. Downey will also discuss his involvement in this case (eg. who tasked him to I
help, the typical method that these sorts of reakiests are handled, and how it was handled in this case).

20

35146

Finally, Mr. Downey will discuss his own interpretation of the handling ofthe logs as well as how this
interpretation identifies PFC Manning's activity on the server.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

G. (U) Mr. Patrick Hoeffel.



ll. (U) Alternatives. This is not a closed court witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

H. (U) Mr. Mark Kitz.

l. (U) Information. Mr. Kitz will testify about his experience with the DCGS-A system. lnitially,
he will discuss the history, function, and purpose of the computer system. Mr. Kitz will discuss the
changing nature and uses of the DCGS-A system over time, focusing on its function during the charged
offenses. He will also discuss the overall cost of the system. Finally, he will discuss any vulnerabilities of
the system and what steps, if any, have been taken to address those deficiencies.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

I. (U) Mr. Jason Milliman.

I. (U) Information. The defense does not believe that any classified testimony will be elicited
from Mr. Milliman during his cross examination.

II. (U) Alternatives. This is not a court closure witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

1. (U) CW4 Armond Rouillard.

I. (U) Information. CW4 Rouillard will testify about how the USF-I GAL was created. He will go
on to indicate what servers are associated with this GAL and its cost of maintenance. CW4 Rouillard will
also discuss the appropriate way the GAL can be obtained and used. Finally, CW4 Rouillard will discuss
how the GAL fits within the general framework of Army information technology systems

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

21



13. (U) The defense provides the following notice with respect to those witnesses who the defense
believes will testify in open court regarding Department of Defense information with respect to the unit
witnesses:

A. (U) SFC Jose Anica.

I. (U) Information. The defense does not beiieve that any classified evidence will be elicited
from SFC Anica during his cross examination.

II. - Alternatives. This is not a court closure witness. The defense is happy to work within
the alternatives developed by the Government to ensure consistency forthe witness and the Court.

B. (U) SPC Kimberly Bales.

I. (U) Information. The defense does not believe that any classified evidence wili be elicited
from SPC Bales during her cross examination.

II. - Alternatives. This is not a court closure witness. The defense is happy to work within
the alternatives developed by the Government to ensure consistency for the witness and the Court.

C. (U) SGT Lorena (Cooley) Defrank.

I. (U) Information. The defense does not believe that any classified evidence will be elicited
from SGT Defrank during her cross examination.

II. Alternatives. This is not a court closure witness. The defense is happy to work within
the aiternatwes eveloped by the Government to ensure consistency for the witness and the Court.

D. (U) CPT Casey (Martin) Fulton.
I. (U) Information. The defense does not believe that any classified evidence wili be elicited
from CPT Fulton during her cross examination.

II. (U) Alternatives. This is not a court closure witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

E. (U) CW3 Hondo Hack.

I. (U) Information. The defense does not believe that any ciassified evidence be elicited
from CW3 Hack during his cross examination.

ii. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

F. (U) CPT Steven Lim.

I. (U) Information. The defense does not believe that any classified evidence will be elicited
from CPT Lim during his cross examination.

22

35148

ll. (U) Alternatives. This is not a court closure witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

6. (U) SGT Chad Madaras.

I. (U) Information. The defense does not believe that any classified evidence will be elicited
from SGT Madaras during his cross examination.

ll. (U) Alternatives. This is not a court closure witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

H. (U) SGT Daniel Padgett.

I. (U) Information. The defense does not believe that any classified evidence will be elicited
from SGT Padgett during his cross examination.

ll. (U) Alternatives. This is not a court closure witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

I. (U) SGT Daniel Sadtler.

I. (U) Information. The defense does not believe that any classified evidence will be elicited
from SGT Sadtler during his cross examination.

ll. (U) Alternatives. This is not a court closure witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

1. (U) Ms. Jihrleah Showman.

l. (U) Information. The defense does not believe that any classified evidence will be elicited
from Ms. Showman during her cross examination.

II. (U) Alternatives. This is not a court closure witness. The defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

14. The defense provides the following notice with respect to those witnesses who the defense
believes will testify in an open session regarding information:

A. (U) Mr. Maxwell Allen.

I. (U) information. Mr. Allen is an informational technology contractor working for He
will discuss his work history with the in general and unclassified terms. He will then discuss the
administration of the database that supports including a description as to how the logs are
created and maintained inside the system. Mr. Allen will then discuss how he came to be involved in the
investigation, the nature of the task given to him, the search he performed, and the results of the search
given the parameters. He will discuss the frequency with which these types of searches are performed.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

23

..



35149

8. (U) Ms. Strobl.

l. (U) Information. Ms. Strobl is an information technology contractor that works for .
Ms. Strobl will discuss how the systems that create the logs function generally
She will also testify as to how those systems work together to create

the logs, the relevant content of the logs, and how she came to retrieve those logs.

ll. (U) Alternatives. This is not a court closure witness. The parties have tentatively agreed to
stipulate to the testimony.of this witness. If that fails, the defense is happy to work within the
alternatives developed by the Government to ensure consistency for the witness and the Court.

15. (U) The defense provides the following notice with respect to those witnesses who the defense
believes will testify in a closed session regarding USCENTCOM information:



II. (U) Alternatives. The defense concedes that the Court should close to hear the testimony of
this witness and follow the procedures described by the Government to preventthe disclosure of the
identity of this witness. The parties have tentatively agreed to stipulate to the testimony of this witness,
pending the response to the defense interrogatory.

16. (U) The defense provides the following notice with respect to those witnesses who the defense
believes will testify in a closed session regarding information:





ll. (U) Alternatives. The defense concedes that the Court should close to hear the testimony of
this witness and follow the procedures described by the Government to prevent the disclosure of the
identity of this witness. The parties have tentatively agreed to stipulate to the testimony of this witness.



35150

ll. (U) Alternatives. The defense concedes that the Court should close to hear the testimony of
this witness and follow the procedures described by the Government to prevent the disclosure of the
identity of this witness. The parties have tentatively agreed to stipulate to the testimony of this witness.







ll. (U) Alternatives. The defense concedes that the Court should close to hear the testimony of
this witness and follow the procedures described by the Government to prevent the disclosure of the
identity of this witness.

17. The defense provides the following notice with respect to those witnesses called by the defense:
A. (U) Professor Yochai Benkler.

I. (U) Professor Benkler will discuss the document that serves as the basis for Specification 15 of
Charge ll. Specifically, he will contextualize the response from the U.S. Government to the "threat"
posed by the Wikileaks organization.

ll. (U) Alternatives. The defense will avoid discussing classified information by having Professor
Benkler describe the response of the U.S. Government in general terms, rather than associate with the
charged document contemplated by Specification 15.

B. (U) Colonel Morris Davis (Retired).

l. (U) Colonel Davis will discuss the charged documents from Specifications 8 and 9 of Charge ll.
He will discuss the rationale behind the drafting of those charged documents and how those documents
were shared inside the U.S. Government. Colonel Davis will identify how those documents were used

25





35151

from their creation until their public disclosure. He will also place the release of these charged
documents in the context of other releases of the same or similar information from the same
headquarters.

ll. (U) Alternatives. The defense will avoid discussing classified information by having Colonel
Davis talk in general terms about how these charged documents were used from their creation until
Summer 2010. If reference to a specific charged document is required, Colonel Davis will identify the
particular piece of classified information by its reference to a location on a page and then discuss how
that information may have been revealed prior to the disclosure by PFC Manning.

C. (U) Ambassador Peter Galbraith.

I. (U) Ambassador Galbraith will testify about the SIPDIS system and the type of cable that
would and would not be distributed through SIPDIS. He will discuss the general contents of the NCD
database while not identifying any specific cable or openly discussing its contents. Instead, he will
testify about the general type of information contained within a SIPDIS cable. He will also testify that
the NCD described international affairs from 300 embassies dating from 1966 to 2010, including cables
that he drafted or that were drafted by his office. Additionally, he will testify about the number of
cables released that were unclassified, confidential, and secret. He will also discuss how none of the
cables were classified as top secret.

ll. (U) To date, Ambassador Galbraith has not been granted clearance to review any classified
documents associated with this case. The defense will avoid discussing classified information by having
Ambassador Galbraith testify in general terms about the topics described above.

0. (U) Mr. Charles Ganiel.

l. (U) Mr. Ganiel will testify as an intelligence analyst expert witness. Mr. Ganiel will testify that
he conducted internet search of the information relayed in the documents charged in Specification 13
and found many documents that relayed the same factual information.

ll. (U) Alternatives. This witness will testify about classified information by referring to the
document itself and directing the Court to the portion of classified information that has been publicly
revealed already. He will then show the Court what information was found during his internet research.
Both aspects of this testimony will avoid publicly mentioning the substance of either of the groups of
documents in open court.

E. (U) Mr. Cassius Hall.

I. (U) Mr. Hall will testify about the charged documents that serve as the basis for Specifications
5 and 7 of Charge II. He will discuss how those products are used and how much of the information
contained in those documents was already publicly available over the internet or through other
unclassi?ed means. Mr. Hall will testify about those charged materials that serve as the basis for
Specifications 2 and 11 of Charge ll. Mr. Hall will testify about the charged documents that serve as the
basis for Specifications 3, 10, and 15.

ll. (U) Alternatives. For Specifications 5 and 7, Mr. Hall will testify about classified information
by referring to the document itself and directing the Court to the portion of the classified information
that has been publicly revealed already. He will then show the Court what information was found

26

35152

during his internet research. Both aspects of this testimony will avoid publicly mentioning the substance
of either of the groups of documents in open court. For his testimony regarding Specifications 2, 3, 10,
11, and 15, Mr. Hall will testify about these charged classified documents in a way that does not identify
them to the open public or confirm information contained in the documents. Mr. Hall will direct the
Court's attention to the particular substance of this testimony and then convey his testimony to the
Court in a way that avoids disclosing classified information.

18.





THOMAS F. HURLEY
MAJ, JA
Defense Counsel

27

35153

UNITED STATES OF AMERICA
DEFENSE RESPONSE TO
GOVERNMENT TARGETED
BRIEF ON THE RELEVANCE
OF DOS TESTIMONY
DATED 14 MAY 2013

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

17 MAY 2013

RELIEF SOUGHT
The Defense requests this Court find that testimony from Department of State officials
relating to the geopolitical situations in numerous nations is not relevant on the merits.
LEGAL AUTHORITY
Military Rule ofEvidence (MRE) 401 establishes that evidence is relevant if it has "any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable that it would be without the evidence." Per MRE 402,
"[ejvidence which is not relevant is not admissible."
A finding of relevance does not necessarily equate to admissibility. MRE 403 provides,
"[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
ARGUMENT
It is uncontroverted that PFC Manning's pleas constitute lesser included offenses of the
charged offenses. The issue that remains for the Court, however, is not whether expert testimony
is appropriate generally as argued by the Government. Rather, the issue is whether the type of
expert testimony elicited by the Government at the 8 May 2013 closed session is relevant to the
remaining elements required for the Government to prove up the greater offenses. The Defense
contends that such testimony is not relevant and will discuss the charges in turn.' Should the
Court find that such testimony is relevant to a remaining element the Defense believes it would
be properly excluded under MRE 403.

' The Government did not proffer that "context" testimony was relevant with respect to Specification of 1 of Charge
II or Charge III. As such, the Defense will not address those charges.

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

AF

fVy

35154

I . Tl^eEvideneeinO^^^^^^^^^^^^^^^^^^^^^^^^^^^l^^^^^^^l^^^^^^^^^^^^^^Gl^argell
Assimilating 1^ U.S.C. ^7^3(e)andl^U.S.C.1030(a)(l).
On 2^ November2012this Court providedthe parties with its draft instructions for the
charged offenses. i^^^AE410a. ^ i t h respect to the specifications assimilating ^7^3the Court
established that the Government must prove:
(1) At or near Contingency Operating Station f^ammer, Iraq...^
(2) the classified records,classified memorandum,videos,and files
described for each specification in element (1) was information
related to the national defenses
(3) the accused had reason to believe the classified records,
classified memorandum, videos, and files described for each
specification in element (1) could be used to the injury of the
United States or to the advantage of any foreign nations
(4) the accusedwillfullycommunicated,delivered,or transmitted
or caused to be communicated, delivered, or transmitted the above
material to any person not entitled to receive it^
at the time 18U.S.C. Section7^3(e)wasin existence onthe
dates alleged in the specifications
under the circumstances^ the conduct of the accused was to the
prejudice ofgood order and discipline in the armed lorces or was
ofanature to bring discredit upon the armed forces.^^.At78
^ i t h respect to the specifications assimilafing^l030, the Court established the
Goverrur^ent must prove:
(1) That at or near Contingency Operating Station l^ammer,
Iraq...the accused knowingly accessed a computer exceeding
authorised access onaSecret Internet Protocol Router Network.
(2) the accused obtained information that has been determined by
the United States Government by Executive order or statute to
require protection against unauthorised disclosure for reasons of
national defense or foreign relations^ to wit...
(3) the accused had reason to believe the information obtained
could be used to the injury ofthe United States or to the advantage
ofanyloreign nations

35155

(4) the accused communicated, delivered, transmitted, or caused to
be communicated, delivered or transmitted the information to a
person not entitled to receive it.
the accused acted willfully^ and
(^^) under the circumstances, the conduct of the accused was to the
prejudice ofgood order and discipline in the armed forces or was
ofanature to bring discredit upon the armed forces. ^^.atlO-1
In order for the Government to prove up the greater offense, it must establish elements
twoandthreeforthe^7^3offensesandelementthreeforthe^l030 offenses^Thatis,theymust
establish the charged documents related to the national defense and PFC Manning had reason to
believe their release could be used to the injury ofthe United States or to the advantage of any
foreign nation.
Pursuant to the Court'sdraft instructions information relates to the national defense if its
disclosure ^^would be potentially damaging to the United States or might be useful to an enemy
ofthe United States,"and is closely held. .^^.at^. Information is not closely held if it is
lawfully available to the public and the Government has made no effort to guard it.
To
establish the elements aboveawitness need only speak about the four corners ofadocument.
Discussion about the geopolitical climate in countryXdoes not impact whether the information
contained in the document is lawfully available, nor does it make it more or less likely that the
Government took steps to safeguard the information.
The Court also ruled,"^^rjeason to believe'means that the accused knew facts Irom
which he concluded or reasonably should have concluded that the information could be used for
the prohibited purposes. In considering whether the accused had reason to believe that the
information could be used to the injury ofthe United States or to the advantage ofaforeign
country,you may consider the nature ofthe information involved."
f^ere,the nature ofthe
information involved is classified information. The context surrounding the document does not
change the nature ofinformation. Ifadocument is classified, then that is its nature and it
remains such regardless of any context. Testimony fromawitness could be used to establish the
nature^e.g.classified) ofinformation, but context is not required to do so. As we saw during the
8May2013hearing,witnesses are able to establish whetheradocument was properly classified
atagiven time without discussing the context surrounding the information. Additionally,in
most cases the OCAwitness is not the individual who originally classified the document.
Rather, the ^^^^^^ is the individual who originally classified the document using derivative
authority. Certainly,the contextual information known by an OCA cannot be imputed to each
individual who has derivative classification authority. As such, an OCA'stestimony about
context tails to make any contested element more or less likely.
Moreover, testimonyfi^omawitness,expert or otherwise,about the context ofa
document does not make it more or less likely PFC Manning should have known the
^ For the 1030 offense, the Government must also prove that PFC Manning exceeded his authorized access on a
Secret Internet Protocol Router Network

35156

information'srelease could be used to the injury ofthe United States. The Government has not
proffered any evidence to demonstrate that PFC Manning knew the context information to which
each ofthe OCAwitnesses would testily.^ IfPFC Manning did not know the context, then this
information should not be considered in an analysis of what he could have or should have known
about the consequencesofreleasing information. Absent testimony that PFC Manning knew
such context information at the time ofthe releases, that context information does not make it
more or less likely that PFC Manning knew or should have known the release ofthe information
could cause injury to the United States or aid any foreign nation. Because context information
does not make any contested element more or less likely it is not relevant and should be
excluded.
I I . Tl^e Evidence in O^^^^^^^^^^^^^^^^^^^^^^^^^^^l^^^^^^^l^^^^^^^^^^^^^^Gl^arge I I
Assimilating 1^ U.S.C. ^^4L
On 2^ November 2012this Court provided the parties with its draft instructions for the
charged offenses^^^AE410a^ithrespecttoassimilating ^^41 theCourtestablishedthatthe
Government must prove:
(1) Aor near Contingency Operating Station f^ammer, Iraq,
(2)

therecordsbelongedtotheUnitedStatesoradepartmentor
agency,thereof^

(3) the accused acted knowingly and willfully and withthe intent
to deprive the government ofthe use and benefit ofthe records^
(4) the records were ofavalue greater than^l,000^
at the timel^U.S.C.Section ^41was in existence on the dates
alleged in the specifications
under the circumstances, the conduct of the accused was to the
prejudice ofgood order and discipline in the armed forces or was
ofanature to bring discredit upon the armed forces. ^^.at4-^
Context information does not make any ofthe above elements more or less likely. The
Defense acknowledges that Government witnesses are permitted to testily as to alleged value of
the information and to any alleged ^^thievesmarket^^ for the information. Since value is based
upon face, par, or market value, these witnesses should be permitted to state howthis
information is valued. Establishing the alleged value^face, par, or market)ofthe charged
information does not require the witness to testify about any information beyond the four comers
ofthe document. The ^^context^^ to the information within the charged document and howthat

^It is worth noting that if the Government did proffer evidence that PFC Manning was aware ofthe context
information it would cut against their argument suggesting an expert is necessary for this type oftestimony.

35157

information could or could not impact on other information is simply not relevant.^ The charged
information has value, ifat all, based upon its content and not based upon contextual information
surrounding the document.
HI. Tl^eEvideneeinO^^^^^^^^^^^^^^^^^^^^^^^^^^^l^^^^^^Gl^argel
On 2^ November 2012this Court provided the parties with its draft instructions for the
charged offenses. i^^^AE410a. ^ i t h respect to Chargelthe Court established that the
Government must prove:
(1) That at or near Contingency Operating Station l^ammer, Iraq,
betweenonor about 1 November 200^andonor about 27May
2010, the accused, without proper authority, knowingly gave
intelligence informationto certainpersons, namely: al 0^^^^^
O^^dainthe Arabian Peninsula,andanentityspecified in Bates
Number00410^^0 through 00410^^4 (^classifiedentity)^
(2) that the accused did so by indirect means,towit: transmitting
certain intelligence,specified inaseparate classified document to
the enemy through the^ikileaks websites
(3) thatal 0^^^^^
O^^^^^^^^^^^^^^^P^^^^^^^^^^^^^^^^^
Number 00410^^0 through00410^^4 (classified entity) was an
enemy^and
(4) That this intelligence information was true, at least in part.
atl
f^ere, again, testimony elicited from witnesses in order to provide context will not make
ataet in consequence more or less likely. Specifically,the Government indicated that context
will be helpful to this Court in determining whether the information is true. This does not
require the witness to testily about any information beyond the four corners ofthe document to
provide ^^context^^ in order to demonstrate that the information is true, at least in part. It should
be noted that the charged cables do not contain facts inavacuum. For example,aState
Department cable itself provides context. They are drafted in suchamanner that the reader,
whomeveritmay be, does notneed to bean expert on the geopolitical climate in^^^^^country
in the world to understand the meaning ofthe document. This is particularly true ofthe SIPDIS
cables,which were intended forawide audience of over one million people. Moreover, adding
contextual information from an individual who did not draft the cable would do nothing to
support the truth ofamatterwithinacharged document. Relevant contextual information, if
any,could only come from the author, as the knowledge of one cannot be imputed on another.

^The Government also suggests that testimony related to the motives and resources offoreign adversaries are
relevant to prove value. The Defense is aware of no Government witness who qualities asa^foreign adversary."
Assuch,anywitnesstestimonyregardingthemotivesorresourcesofforeignadversariesshouldheprecludeddueto
the witness^slackofpersonal knowledge and the speculative nature of the testimony.

35158

IV.Evenil^Relevant, Content Evidence Sl^ould be Excluded Pursuant t^ MRE 403
Should the Court find context evidence is relevant to an element at issue, the Defense
believes such evidence should nonetheless be excluded under MRE 403. Allowing the
Government to elicit such testimony will, the parties agree, entitle the Defense to cross examine
the witness on that context testimony,and to call its own witnesses to contradict the testimony
given by the Government witnesses. In suchascenario, the Defense could elicit context Iroma
perspective alternative toaGovemment witness or elicit testimony that the contextual situation
was well-known. International politics are no different than domestic politics^ there are always
multiple perspectives onasituation and plenty ofindividuals who are willing and able to
contribute to the debate. It is easy to imagine the court devolving into hours oftestimony over
trivial matters like the extent to whichanation'stribal factions get along or whetherapolitical
figure thoughtaparticular course of action wasagood idea. Toindulgesuchadebateover
issues that are tangential at best would beacolossal waste of time lor all parties and would
detract from the actual issues at hand.
By way ofillustration,let'ssupposeacable stated "Eddie graduated from the Ohio State
University and roots for the Buckeye football team." Despite the four corners ofthe document,
the Government wished to show context in order to demonstrate the statements truth, and elicited
testimony that Eddie grew up in Ohio,comes IromafamilyofBuckeye fans, and hasabasement
full ofOhio State memorabilia. The Del^nse could then introduce contradictory evidence. For
example, they might elicit that Eddie went to the same high school as several^olverine football
legends,that Eddie'sbrother went to Michigan, and that Eddie hasa^olverine decanter in his
basement bar. All ofthis context testimony dances around the actual issued does Eddie root for
theBuckeyes7 In the scenario we could spend hours or even days going back and forth with
"context" testimony.
In the case at hand,we are dealing with over one hundred charged cables and over one
hundred charged SlGACTs. Allowing the Government to drag the Court and the Defense intoa
debate over the context of each charged diplomatic cable and each SlGACTwill detract from the
actual issues and cause undue delay and waste of time.

CONCLUSION
As indicated above, the Defense respectfully requests the Court rule that "context"
testimony fiom witnesses is inadmissible.

^^flUA.lTOOMAN
CPT,.1A
Defense Counsel

35159

Icertifythatlserved or caused to be servedatrue copy ofthe above on MA.lAshden
Fein.via electronic mail,onl7May2013.

^O^FIUA^ OOMAN
CPT,.1A
Defense Counsel

35160

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

Prosecution Proposed Plan:
Expeditions Transcription

20 May 2013

According to the Court's Scheduling Order of 15 April 2013, the United States was required
to submit its plan to ensure expeditious transcription of closed sessions by 6 May 2013. See
Appellate Exhibit (AE) 519. This plan is necessary to facilitate the curative courtroom closure
measure of reviewing and making public those portions of closed session transcripts that are
unclassified. See AE 511. On 1 May 2013, the Government requested leave of the Court until
20 May 2013 to submit this plan. See AE 529. The Court granted this request via email on 2
May 2013. This filing complies with the Government's obligation to provide this plan. The plan
detailed herein is geared toward allowing the greatest degree of transparency of proceedings
while ensuring classified national security information remains protected. The United States
hereby moves the Court to approve it. See AE 534.
The expeditious transcription plan outlined here provides the metric and schedule according
to which transcription, review, and release can occur. The final completion date will be a
function of the number of hours of closed tesfimony this court-martial ultimately produces
coupled with the complexity of that testimony. The transcription plan involves four phases and
is based on several premises. These are detailed below.
I. Premises
Available Personnel: The United States Army Military District of Washington (MDW)
allocated all of its court reporters, including one permanent and two temporary civilian court
reporters, to this court-martial. These individuals are currently being fully ufilized by this courtmartial and have the requisite security clearances to report during and transcribe closed sessions.
MDW has also authorized fiinding for contractors to provide additional court reporter assistance.
See AE 529. On 14 May 2013, a contract was awarded to a transcription company to provide
transcription. This company will provide two court reporters with security clearances and three
court reporters without security clearances. The court reporters without security clearances will
transcribe open sessions remotely from audio recordings mailed to them. Therefore, at any given
time, four court reporters will be available to transcribe closed sessions from audio, while three
provide open-session transcription, and one reports during session.
Operational Capacity: Chapter 25-5 of Army Regulation (AR) 27-10 provides that, based on
the experience level of court reporting personnel, five to ten pages of session-produced transcript
can be transcribed per hour. This pace yields an eight-hour workday output of between 40 and
80 pages of final transcription product. The United States estimates that one hour of session
recording will produce between 40 and 50 pages of transcript and that it would take one court
APPELLATE EXHIBIT 5 ^ ^
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35161

reporter approximately eight hours(or one business day) to transcribe this one hour of
proceeding. At this rate, one tour-hour closed session could yield betweenl^O and 200 pages of
transcript and require one court reporter spend lour days to complete transcription. Given four
court reporters will be available at any given time, the United States anticipatesalour-hour
closed courtroom session could be transcribed in one day. The remaining two reporters without
clearances could continue transcription of unclassified proceedings. For every 800 pagesof
transcript ultimately produced, court reporters require one dayto proof, read, and file the
product. Any page amount between 801 andl^OO,will require an additional day,and so forth in
800-page increments.
11. Four Phases oftheTranscription Plan
Phasel: Transcription^As indicated above, the final transcription product l^r one fourhour closed session can be completed in two days(one dayto transcribe and one day to finalize).
This process can occur concurrentlywith proceedings but will require the lulltimeeflort ofthe
lour court reporters cleared to process the classified material. Therefore, open-session
transcription will necessarily be slowed until the closed-session product has been finalized.
Phase 2: Errata and Authentication The purpose of courtroom closure is to protect national
security inlormationfi^omunauthorized disclosure. Consistent with this requirement, the content
ofthe closed proceedings,once transcribed, must be reviewed by the parties to ensure accuracy
before inlormation should be submitted to inlormation equity holders to review the classification
level oftestimony. Ifthis does not occur, the equity holders will be reviewing testimony that
may ultimatelyrequire re-review post errata to ensure any corrected language is properly
classified. The United States understands this to be the only method ofavoiding spillage because
ifthe transcript changes based on the errata, otherwise unclassified inlormation could become
classified with the changes. The Court is, ofcourse, at liberty to authenticate the transcript at the
conclusion ofthis errata process or wait until final production in accordance with the Court's
convenience.
The Rules ofPractice before Army Courts-Martial,dated 2^ March 2012,provide in Rule
28.5 that counsel will reviewl50 pages of transcript per calendar day "while they are at home
station and not on leave or pass, or in trial or conducting an Article 32 investigation." Given the
parties will be conducting this errata review ofpotentiallyvery complicated testimony as
proceedings continue, the United States proposes the parties adhere toa75 page per day errata
standard. This process can occur concurrentlywith trial proceedings, so that reviewed transcript
portions can be submitted to equity holders onarolling basis.
Phase3: Classification Review^Diflerent equity holders have provided the United States
different estimates regarding the time frame necessary to complete classification review,and
other equity holders are still determining how many hours it would take to completea
classification review. One organization advised that witnesses should be the first to provide the
classification review. Witnesses would review their testimony for classification level only and
not as an additional errata process, l^owever, the time necessary to elfectuate this process could
vary depending on witnesses'post-testimony availability and connectivity capacity. For
example, State Department witnesses may be traveling to remote areas. Another organization

35162

indicated that 50 pagesoffinal transcript could be reviewed by the tasking process within two
weeks ofreceivingit^requiring an additional two daysofreview time lor each additional 50
page increment. And yet another organization estimated it would take eleven minutes to review
the classification ofone page and, in total, could review one hour ofproceedings per day. This
organization would assemble an ^^^^^ "tiger team" when this task arises.
These timefi^amesmay vary depending on the complexity and robustness ofthe classified
testimony. Moreover, the time it takes to achieveafinal product could vary depending on the
time it will take the United States to compile the testimonyredactions that have been submitted
on the same transcript bymultiple inlormation equity holders. Ultimately,the United States
suggests the Court adopt the75 page per day errata standard lor the parties and plan on external
equity holders reviewing 50 pages every two weeks.
Phase4: Public Release^Following the transcription and review of closed-session
testimony,the United States proposes the closed session transcripts be released to the public in
two ways. First, they will be posted electronically in the publicallyavailable^.^^.^^^^^^^^
reading room on the HOOAwebsite. Second, they will be made physically available at the Fort
Meade courtroom.The final redacted closedsession transcript products will ultimately
accompanythe final publically available unclassified proceeding transcriptions.

ASFIDENFEIN
MA.1,.1A
Trial Counsel
Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 20 May 2013.

ASHDENFEl
MA.1,^A
Trial Counsel

35163

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: RELEVANCE

ON THE MERITS OF TESTIMONY

v. EXPLAINING NATURE OF

CHARGED CLASSIFIED
MANNING, Bradley E., PFC DOCUMENTS AND POTENTIAL
U.S. Army, DAMAGE
HHC, U.S. Army Garrison
Joint Base Myer-Henderson Hall DATED: 21 May 2013
Fort Myer, Virginia 22211

Following the 8 May 2013 closed Article 39(a) session to determine whether there are reasonable
adequate alternatives to trial closure for the protection of classi?ed information in this case, the Court
ordered the parties to ?le briefs on the following issues regarding relevance on the merits:

(l the relevance of testimony on context and circumstances surrounding the charged information;

(2) the relevance of testimony on prospective damage that could be caused to the United States by
release of the charged classi?ed evidence on the date of release; and

(3) whether the Defense may rebut such testimony.

The Court has considered the ?lings by the parties, evidence presented, the testimony of the ?dry
run? witness, Ambassador Don Yamamoto, Acting Assistant Secretary for African Affairs, Department of
State, the charged offenses, the proposed instructions of the Court, and oral argument of counsel. The
Court ?nds and rules as follows:

Findings of Fact:

1. The accused is charged with one speci?cation of aiding the enemy, one specification of wantonly
causing intelligence to be published, eight speci?cations of violations of I8 U.S.C. 793(e), ?ve
speci?cations of violations of 18 U.S.C. 641, two speci?cations of violations of 18 U.S.C. l030(a)( I
and ?ve speci?cations of violating a lawful general regulation, in violation of Article 104, I34, and 92,
Uniform Code of Military Justice (UCMJ) respectively.

2. The accused has entered a plea of guilty by exceptions and substitutions to lesser included
speci?cations for speci?cations Charge ll (the greater offenses in violation of
18 U.S.C. 793(e)). The accused?s plea and the Court?s takingjudicial notice ofthe existence of I8
U.S.C. 793(e) leave the following elements to be proved by the Government beyond a reasonable doubt
for the accused to be found guilty of the greater offense for these speci?cations:

a. that the charged information relates to the national defense; and

b. that the accused had reason to believe the information communicated could be used to the
injury of the United States or to the advantage of any foreign nation.

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1 APPELLATE lax; u:



35164

3. The Court?s proposed instructions de?ne information related to the national defense as follows:

?The term ?national defense? is a broad term which refers to the United States military and naval
establishments and to all related activities of national preparedness.

To prove that documents, writings, photographs, videos, or information relate to the national defense,
there are two things that the government must prove:

(I) that the disclosure of the material would be ?potentially damaging to the United States or
might be useful to an enemy of the United States; and

(2) that the material is closely held by the United States government, in that the relevant
government agency has sought to keep the information from the public generally and has not
made the documents, photographs, videos, or computer ?les available to the general public.
Where the information has been made public by the United States government and is found
in sources lawfully available to the general public, it does not relate to the national defense.
Similarly, where the sources of information are lawfully available to the public and the
United States government has made no effort to guard such infonnation, the information
itself does not relate to the national defense.

In determining whether material is ?closely held,? you may consider whether it has been classi?ed by
appropriate authorities and whether it remained classi?ed on the date or dates pertinent to the charge
sheet. You may consider whether the information was classi?ed or not in determining whether the
information relates to the national defense. However, the fact that the information is designated as
classi?ed does not, in and of itself, demonstrate that the information relates to the national defense.?

4. The Court?s instructions de?ne reason to believe as follows:

??Reason to believe? means that the accused knew facts from which he concluded or reasonably should
have concluded that the information could be used for the prohibited purposes. In considering whether
the accused had reason to believe that the information could be used to the injury of the United States or
to the advantage of a foreign country, you may consider the nature of the information involved. You need
not determine that the accused had reason to believe that the information would be used against the
United States, only that it could be so used.?

5. The accused has also entered a plea of guilty by exceptions and substitutions to lesser included
offenses for speci?cations 13 and 14 of Charge 11 (the greater offenses in violation of 18 U.S.C.
l030(a)(l The accused?s plea and the Court?s takingjudicial notice ofthe existence of 18 U.S.C.
103 leave the following elements to be proved by the Government beyond a reasonable doubt for
the accused to be found guilty of the greater offense for these speci?cations:

a. that the accused knowingly exceeded authorized access on a Secret lntemet Protocol Router
(SIPR) Network;

b. that the accused had reason to believe the information communicated could be used to the
injury of the United States or to the advantage of any foreign nation.

6. The accused has entered pleas of not guilty to all of the remaining charges and speci?cations. Thus,
the Government is required to prove all of the elements of these speci?cations beyond a reasonable doubt.

35165

7. The Government proffers that evidence of the context and circumstances surrounding the charged
offenses and evidence of prospective damage are relevant to prove the following elements of the
following offenses:

a. the elements of ?relating to the national defense? and ?with reason to believe such information
could be used to the injury of the United States or to the advantage of any foreign nation? for
all ofthe 18 U.S.C. 793(e) speci?cations;

b. the element ?with reason to believe such information could be used to the injury of the United
States or to the advantage of any foreign nation? for Specifications 13 and 14 in violation of
18 1030(a)(1);

c. that the information was ?intelligence? that the ?intelligence? was true for the specification of
Charge I (Aiding the Enemy, Article 104, UCMJ) and specification 1 of Charge II (Wantonly
Causing Publication of Intelligence, Clauses 1 and 2, Article 134);

d. the element of value for specifications Charge II (18 U.S. C. 641); and

e. the element of prejudice to good order and discipline and service discrediting conduct for the
specifications of Charge II to which the accused has entered a plea of not guilty (specifications
ofCharge II).

8. The Court?s instructions de?ne ?intelligence? for the speci?cation of Charge I and speci?cation 1 of
Charge II as ?any helpful information, given to and received by the enemy which is true, at least in part.?

The Law.

1. Evidence is relevant if: it has any tendency to make a fact more or less probable than it would be
without the evidence; and the fact is of consequence in determining the action. MRE 401. The
militaryjudge has the initial responsibility to detennine whether evidence is relevant. US. v. White, 69
M.J. 236 (C.A.A.F. 2010).

2. Relevant evidence is admissible unless any of the following provides otherwise: (1) the United States
Constitution as applied to members of the armed forces; (2) a federal statute applicable to trial by courts-
martial; (3) the military rules of evidence; or (4) the Manual for Courts?Martial. Irrelevant Evidence is
not admissible. MRE 402.

3. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of
one or more of the following: unfair prejudice, confusing the issues, misleading the members, undue
delay, wasting time, or needlessly presenting cumulative evidence. MRE 403.

Conclusions of Law:

1. Evidence of the context and circumstances surrounding the charged information and prospective
damage is relevant to the following elements:

a. whether the information charged in the specifications alleging violations of 18 U.S.C.
793(e) relates to the national defense (specifications Charge



35166

b. whether the information charged in the speci?cation of Charge I and speci?cation I of
Charge 11 is intelligence and whether that intelligence is true, at least in part;

2. The Govemment?s pro?ers regarding relevance to the value element of the speci?cations alleging
violations of 18 U.S.C. 641 (speci?cations Charge II) and the element ofprejudice
to good order and discipline and service discrediting conduct for all of the speci?cations of Charge 11 to
which the accused has pled not guilty provide logical theories of relevance. The Court will allow limited
evidence of the context and circumstances surrounding the charged offenses and potential damage to
prove those elements.

3. The Government concedes, and the Court agrees, that the Defense may also present evidence to
challenge the above elements and to rebut Government evidence regarding the context and circumstances
of the charged infonnation and prospective damage.

4. Evidence of the context and circumstances surrounding the charged information and prospective
damage that was not known by the accused is not relevant to whether the accused had reason to believe
that communication of the charged information could be used to the injury of the United States or to the
advantage ofany foreign nation for the speci?cations alleging violations of 18 U.S.C. 793(e)
(speci?cations Charge II) or violations of 18 U.S.C. 1030(a)(1)
(speci?cations 13 and 14 of Charge 11) . This element is a mens rea of the accused.

5. The Court is concerned that extensive evidence of the context and surrounding circumstances and
prospective damage of the charged information has the potential to cause this trial to devolve into mini-
trials regarding international politics in various regions of the world, particularly with respect to such
evidence regarding the charged cables in speci?cations 12 and 13 of Charge 11:

This evidence is not relevant to any remaining element in speci?cation 13 of Charge 11. The
only remaining elements the Government must prove are (1) that the accused knowingly exceeded
authorized access on a SIPR network and (2) that the accused had reason to believe the information
communicated could be used to the injury of the United States or to the advantage of any foreign nation;

This evidence is potentially relevant to the value and prejudice to good order/discipline
elements in speci?cation 12 of Charge II. The Government pro?er alleges that for speci?cations 4, 6, 8,
l2, and 16 ofCharge II alleging violations of 18 U.S.C. 641, the Government will prove value in a
thieves market and expects to provide evidence of the content and context of the charged information and
the motives and resources of foreign adversaries. The Government does not proffer that evidence of
prospective damage to the United States aside from evidence of the motives and resources of foreign
adversaries, is relevant to value.

Accordingly, assuming proper foundation, if the evidence is brief, limited, and focused, evidence of the
immediate context and circumstances surrounding the charged information in speci?cations 12 and 13 of
Charge [1 and the motives and resources of foreign adversaries for the value element of speci?cation 12
of Charge 11 is relevant. While the Court is not in a position to rule on any MRE 403 objections to
speci?c evidence at this time, the parties are on notice that the Court views evidence beyond that
authorized above as potentially subject to exclusion under MRE 403, particularly with respect to the
charged cables in speci?cations 12 and 13 of Charge II.

RULING: Evidence on context and circumstances surrounding the charged information and potential
damage is relevant on the merits as set forth above. The Court will address particular MRE 403
objections as they are raised during the trial.

4



35167



SO ORDERED this 215? day of May 2013.



DENISE R. LIND
COL, IA
Chief Judge, 151 Judicial Circuit

35168

INTEIEUNITED STATES ARMY
FIRST JUDICIAECIRCUIT
UNITED STATESOF AMERICA
ORDER TO CLOSE
CERTAINPROCEEDINGS
Manning, Bradley E.
PFCUSArmy,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
FortMyer, Virginia 22211

DATED: 21 May 2013

1. The Government moves the Court to order trial proceedings closed to the public when certain
classified inlormation is being introduced or is the subject of examination or argument to ensure
that the classified information specified in the Govemmenfs motion is not disclosed to the public.
Appellate Exhibit(AE)479. OnlMarcb 2013,the Court required the Government to resubmit its
request with more specificity. AE 503. On 15March 2013,the Government resubmitted its
request with more specificity. AE 505. The Defense opposes, arguing that the proposed closure is
not narrowly tailored and that the classified inlormation can be protected byareasonable
alternative procedure called "the silent witness rule". Defense moved the Court to ordera
Goverrrment merits witness be produced loraelosed Article 39(a) session to determine whether
reasonable alternatives to closure exist. AE513. The Court granted the portion ofthe Defense
motion to boldaclosed Article 39(a)sessionwitbamerits "dry run" witness who would discuss
classified information to determine whether reasonable alternatives to closure exist. AE513. That
closed Article 39(a)session was held on8May2013. The witness discussing classified
information was Ambassador(AMB)DonYamomoto,Acting Assistant Secretary for African
Affairs, U.S.Department ofState. Uaving considered the classified and unclassified filings by the
parties,evidence presented, oral argument, and the closed Article 39(a)sessionof8May 2013,the
Courtfindsand rules as follows:
Findings olFaet:
1. The Government moves to close the Court for portionsoftestimony that discuss the substance
of classified information for the following twenty-four witnesses(10merits witnesses; 13
sentencing witnesses;lwitness for merits and sentencing);
a. BG (Ret) Robert Carr will provide classified testimony relevant to the pre-sentencing phase
oftrial;
b. Col Julian Chestnut will provide classified testimony relevant to the pre-sentencing phaseof
trial;
C.Ms.Elizabeth Dibble will provide classified testimony relevant to the pre-sentencing phase
oftrial;
d. RADM l^evin Donegan will provide classified testimony relevant to the pre-sentencing
phaseoftrial;
e. Mr.JohnFeeley will provide classified testimony relevant to the pre-sentencing phase of
trial;
f AMB PatrickF.l^enr^edy will provide classified testimony relevant to the presentencing
^^^^^^^^^^^^^

APPELLATEEXHIBIT^
PAGEREFERENCED:

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35169

g. Mr.Johnl^irchhofer will provide classified testimony relevant to the pre-sentencing phase
oftrial;
h. AMB Michael l^ozak will provide classified testimony relevant to the pre-sentencing phase
oftrial;
i. Mr. Danny Lewis will provide classified testimony relevant to Specifications4,^,8,12,and
l^ofCbargell;
j . Mr. Randall MacRobbie will provide classified testimony relevant to the pre-sentencing
phaseoftrial;
k. Mr.James McCarl will provide classified testimony relevant to the pre-sentencing phase of
trial;
1. MajGen l^ermethMcl^enzie will provide classified testimony relevant to the pre-sentencing
phaseoftrial;
m.Mr.James Moore will provide classified testimony relevant to the specification of Chargel
andSpecificationsl,12,andl3ofChargell;
n.MG Michael Nagata will provide classified testimony relevant to the pre-sentencing phase
oftrial;
o. SSA Alexander Otte will provide classified testimony relevant to the specification of
ChargelandSpecificationlof Charge 11;
p. AMB David Pearce will provide classified testimony relevant to the specification of Charge
landSpecificationsl,12,andl3ofChargell;
q. Mr. Adam Pearson will provide classified testimony relevant to the presentencing phaseof
trial;
r. Mr. U^. Dean Pittman will provide classified testimony relevant to the specification of
Chargeland Specificationsl,12,and 13of Charge 11;
s. AMB Stephen Seche will provide classified testimony relevant to the specification of
Chargeland Specificationsl,12,and 13of Charge 11;
t. Mr. David Shaver will provide classified testimony relevant to Specification3ofCharge 11
and classified testimony relevant to the pre-sentencing phase oftrial;
U.Ms.Cathryn Strobl will provide classified testimony relevant to Specifications3andl5of
Charge 11;
V.AMB DonYamamoto will provide classified testimony relevant to the specification of
ChargelandSpecifications 1,12,and 13 of Charge 11;
w.AMB MarieYovanovitch will provide classified testimony relevant to the specification of
ChargelandSpecifications 1,12, and 13 ofCharge 11; and
X. Mr.JosephYun will provide classified testimony relevant to the specification of Chargel
andSpecificationsl,12,andl3ofChargell.
2. On 28 March 2013,the Defense moved the Court to order the Government to produceamerits
witness andasentencing witness to go througha"dry run" of the classified testimony inaclosed
Article 39(a)session to address whether there are reasonable alternatives to closure available. On
lOApril 2013,the Court ordered the Government to producea"dry run" merits witness to
determine whether there are reasonable alternatives to closure available. The Government
produced AMB DonYamamoto asa"dry run" merits witness. On8May2013,AMBYamamoto
testified duringaclosed Article 39(a)session. The Government examined AMBYamamoto,both
with and without the use of alternatives. The Defense then examined AMBYamamoto with the

35170

use of alternatives. During the testimony using alternatives, there was at least one incident where
spillage of classified inlormation would have resulted had the testimony been given in open eotut.
3. OnlOApril 2013,the Court ruled that the Government had not provided the Court with
evidence ofthe classified nature lor all ofthe classified information at issue to allow the Court to
properly apply the test for closure set forth inRCM80^(b)(2)and make appropriate case-specific
findings. AE517. The Court ordered the Government to provide the Court with evidenceofthe
classified nature of each specific piece of classified information the Government seeks to assert as
an overriding interest justifying closure by7May2013. On7May2013,the Government
requested leave untillOMay2013,to which the Defense did not object. The Court granted the
Government'smotion.
4. OnlOMay2013,the Goverrunent^^^^^^^ presented the following evidence relating to the
national security interest for the classified inlormation for which the Goverrunent seeks trial
closure: (l)aletter from the DepartmentofDefense with references to six security classification
guides; (2)aletter fiom the Defense Intelligence Agency with references to two security
classification guides; (3)aletter fiom the Department ofState with references to one security
classification guide;(4) classification reviews lor the charged documents;(5) classification
reviews for evidence the Government intends to use at trial; and(^) the classification reviews
enclosed to the Government'sMilitary Rule ofEvidence (MRE) 505(i)(2) filing dated31January
2013AE477
5. No evidence has been presented that the classified inlormation at issue is lawfitlly in the public
domain or has been officially acknowledged by the Government.
^. The Court reviewed ^^^^^^^^^ the letters fiom the three above government organizations and
the relevant classification reviews which cite the reasons that the information is classified
(EnclosuresU^ ofthe Govemment'sEvidence of the Classified Nature ofthe Information
Asserted as an Overriding Interest Justifying Closure datedlOMay2013).
7. The proffered testimony and accompanying letters and classification reviews demonstrate bya
preponderanceofthe evidence that the testimony sought to be introduced was properly classified
by an authorized original classification authority applying the standards ofExecutive Order 1352^.
8. Public disclosure ofthe classified inlormation reasonably could be expected to cause serious
harm to the national security ofthe United States as described in the classification reviews as it
pertains to intelligence activities, intelligence sources and methods, and the foreign relations and
foreign activitiesofthe United States, the unauthorized disclosure of which reasonably could be
expected to harm the national defense and foreign relations ofthe Unites States. EnclosuresU^of
the Govemment'sEvidence of the Classified Nature of the Information Asserted as an Overriding
Interest Justilying Closure datedlOMay2013.
TheLa^:
1 The Court'sl3 April 2013Ruling and Order: Interplay BetweenMRE 505,RCM 80^, and
^.^.^.^^^^^^^; Specificity of Classified Inlormation; and John Doe sets forth the Cottrt^s view of

35171

the law regarding closure oftrial proceedings under the First and Sixth Amendments,RCM
80^(b)(2),andMRE505(j)(5). The Court notes that the President has implemented by executive
order amendments to MRE 505 effective 15May 2013. The amendments do not change the
Court'ssubstantive view ofthe interplay between MRE 505,RCM 80^, and ^.^.^.G^^^^^^.
2. When the Goverrunent seeks closure ofcourt proceedings, the Constitutional test incorporated
by RCM80^(b)(2)requires the Government to demonstrate that(l)thereisasubstantial
probability that an overriding interest will be prejudiced ifthe proceedings remain open; (2)
closure is no broader than necessary to protect the overriding interest; and (3)reasonable
alternatives to closure were considered and found inadequate. The evidence presented must be
sufficient to allowthe Court to make casespecificfindingson the record justifying closure.
3. Where the basis foraproposed closure of portions ofthe trial is to protect against disclosureof
classified inlormation, the Government must demonstrate that the information is properly
classified, that closure ofthe proceedings during the presentation ofthe classified information is
necessary to protect the national security ofthe United States, and that the proposed closing is
narrowly tailored so that proceedings are closed to the absolute minimum necessary to protect the
national security inlormation. ^^^^^^i^^^^^.^v.G^^^^^^^2M.J.ll^(C.M.A. 1977).
4. The Court ofAppeals for the Armed Forces(CAAF) has recognized that the protection of
classified information can be an overriding interest that will be prejudiced ifthe proceedings
remain open.When closing proceedings to protect the national security ofthe United States by
preventing disclosure of classified information, the Court must make individualizedfindingswith
respect to the specific information the Government asserts requires protection from public
disclosure, identify each witness who will testily regarding the classified inlormation, and close
the Court only during the portions ofthe presentation ofevidence that actually divulge the
classifiedinformation^^^^^^^^^^^^v.^^^^^^^^^31MJ 849,853 ( N - M C M R 1990),^^
^ ^ ^ ^ ^ , 3 5 M J 3 9 ^ ( C M A 1992)
CaseSpeeilie Findings RegardingClosure:
1. Overriding lnterest:The testimony sought to be introduced by the twenty-four witnesses has
been classified at the SECRETor CONFIDENTIAL level and was properly classified by an
authorized original classification authority applying the standards ofExecutive Order 1352^. The
Goverrrment has demonstrated that there isareasonable danger that presentation ofthe classified
information before the public will expose interests relating to the national security ofthe United
States that should not be divulged. Public disclosure ofthe classified information in this case
reasonably could be expected to cause serious harm to the national security ofthe United States as
described in Enclosuresl-^ of the Goverrunent'sEvidence ofthe Classified Nature ofthe
Information Asserted as an Overriding Interest Justilying Closure datedlOMay2013. The
Government demonstrated that closure ofthe trial during those portions oftestimony ofthe
twenty-four witnesses is necessary to protect the overriding interest ofnational security. The
Courtfindsthat the Govemment'sinterest in protecting the national security and preventing the
dissemination of classified information outweighs the accused'sand^or the public'srighttoa
public trial for the portion ofthe trial that involves disclosure ofthe classified information at issue.

35172

2. NarrowlyTailored Closure: The Court conductedatest to determine whether reasonable
alternatives exist in lieu of closure. On8May2013,the Court observed AMBYamamoto testify
duringaclosedArticle 39(a) session. The Government examined AMBYamamoto,both with and
without the use of alternatives. The Defense then examined AMBYamamoto with the use of
alternatives. The Court finds that it is not possible for the Government to elicit coherently in open
court nuanced and narrative testimony about the substance ofthe classified inlormation using "the
silent witness rule"or any other code or legend not available to the public. It is also not possible
for the Court to understand that testimony using "the silent witness rule",code, or legend. The
use of such alternatives for nuanced narrative testimony in open court creates complexities for the
witnesses that result in an unreasonable risk ofspillage ofclassified information. Finally,
presentation ofnarrative nuanced testimony in open court using such alternatives creates an
uru^easonable risk ofclassification by compilation with members ofthe public able to "connect the
dots" fiom particular pieces ofinformation and combine that with other information to identify
classified information. The Court recognizes that it is possible that certain unclassified testimony
ofthe above twenty-lour witnesses may be elicited intermixed with the classified information. In
order to narrowly tailor the closure,the Court has ordered the Government to presentaplan to
expeditiously prepareatranscript and to conduct appropriate classification review(s)ofthe
transcript ofany testimony presented in closed session, to include that ofthe twenty-four
witnesses. Unclassified portions ofthe testimony will be released to the public. The closure
ordered by the Court is as narrowly tailored as possible to protect the accused'sandpublic'sright
toapublic trial while protecting the classified information fiom inadvertent public disclosure and
the right ofthe parties to present classified evidence inacoherent manner to the fact-finder.
3. Reasonable Alternatives to Closure: The Court considered alternatives to receiving classified
testimony including: the use ofredactions,"the silent witness rule",projected electronic displays,
unclassified summaries or alternatives oftestimony,and code words^names. The Court also
considered the alternatives presented by the parties during AMBYamomoto'stestimony. There
are no alternatives to closure for the presentation of classified testimony fiom the24 witnesses that
are reasonable or adequate. The Court has imposed the classification review requirement as an
alternative to closure.
4. The Court has carefully balanced the accused^s Sixth Amendment right toapublic trial and the
public^s First Amendment right toapublic trial against the potential serious damage to the national
security ofthe United States that would result from the public disclosure or spillage ofthis
information in an open session of this court martial.
5. The overriding interest in protecting the national security information fiom disclosure
outweighs any danger ofamiscarriageofjustice that could arise from the taking ofthe portions of
testimony fiom the twenty-four witnesses in closed sessions ofthis court-martial.
ORDER:
1. The court-martial will be closed to the public during portions oftestimony ofthe above
twenty-four witnesses discussing the substance of classified information.

35173

2. Afier each ofthe twenty-four witnesses has testified, the Government will expeditiously
prepareatranscript of the testimony and conduct appropriate classification review(s)ofthe
transcript.Aredacted copy containing any unclassified testimony will be released to the public.
The Court is currently evaluating the proposed transcriptior^classification review plan submitted
bythe Government on20 May 2013 AE 548.
SoORDEREDtbis21^^ day ofMay 2013

DEN1SER.L1ND^
COL,JA
Chief Judge, 1st Judicial Circuit

35174

UNITEDSTATESOF AMERICA

^
)
)

)
)
)
)
^
)

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

Scheduling Order

21 May 2013

1. The Court is currently scheduling Article 39(a)sessions with the following default schedule at
the request ofthe parties: two weeks for parties to file motions; two weeks for parties to file
responses; five days for parties to file replies; and one week for the Court to review all pleadings
before the start ofthe motions hearing. The time for filing replies was added afier the first Article
39(a)session on 15-l^March2012because the Court received reply briefs the day before that
session, the parties desire to continue to file replies, and the Court requires time to consider them.
2. Scheduling dates and suspense dates are set forth below. This schedule was coordinated with
the parties. The trial schedule will be reviewed and updated as necessary at each scheduled
Article 39(a)session.
a. Immediate Action (21Fehruarv 2012 l^Mareh 2012)
1^. Legal Motions,e^eludingEvidentiary Issues (29 Marel^ 2012-2^ April 2012^
e.

LegalMotions(10Mav2012^June2012)

d. Interim Pretrial Motions (2 June 2012 2^ June 2012)
e. PretrialMotions(7 June 2012 20Julv 2012^
1. PretrialMotions(20July2012

30August2012)

g. PretrialMotions (24 August 2012 l^Oetol^er 2012^
1^. Pretrial Motions (2^ Se^temI^er2012^2Noveml^er 2012)
i.

PretrialMotions(19Oetol^er2012

12Deeeml^er2012)

^. PretrialMotions(l^Noveml^er2012 11 January 2013)
1^. Pretrial Motions (11 January 2013 17 January 2013)
1. Pretrial Motions (14January 2013 IMareh 2013)
m. Pretrial Motions (1^ March 2013 12 A^ril2013)

^

APPELLATEEXHIBIT^^
PAGEREFERENCED:
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OF
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^^^^^^

35175

n. PretrialMotions(22April2013^May2013)
0. PretrialMotions(22A^ril2013 24May2013)
(A)
(B)
(C)
(D)

Filing: 22 April 2013
Response:^May2013
Reply: llMay2013
Article 39(a): 21 May 2013

(1) Grunden Hearing l^orDelenseClassil^edlnl^ormation
(2) Government Notieeo^ Alternatives olClassi^ed Information in lieu ol Closing
the Courtrooms
Filing: 22 April2013
(3) Del^ense Grunden and Alternatives Filing-Corrected Copy
Filing: 13May
(4) Notice of Government Ol^^eetions to Delense Use of Classi^ed Inlormation and
Government Proposed Alternatives to Delense Use ol^ Classified Inlormation
(5) Completion ofSeeurity Clearance Cheel^s for witnesses and Access Granted
(^) GovernmentEvidenee ofclassification ofinformation for Closed Sessions
(Grunden)
Filing: 10May2013
(7) Government Draft Order for Classil^ed Information for Closed Sessions
(Grunden) (for 24 Remaining witnesses)
Filing: 10May2013
(8) Government ProposedTrial Schedule
Filing: 21 May 2013
(9) Government Plan for ExpeditiousTranseription of Closed Sessions
Filing: 20 May 2013
(10) Goyernment witness List Order-First 2^ witnesses
Filing: 21May 2013

alternatives include, but are not limited to stipulations; use ofcodc words or special names; use of screens,
disguises, and code names for classified witnesses; use ofelectronic imagery visible only to cleared trial participants
and not the public; the ^^silentwitness^^ rule; and syllabi or reference indexes.

35176

(ll)Government Filing on (l)ReleyaneeofExpertTestimony on Context and
Circumstances Surrounding Charged Documents^ (2) RelevaneeofExpertTestimony on
Prospective Damaged and (3) whether the Defense is Entitled to Rel^ut any such Expert
Testimony
(A) Filing: 14May2013
(B) Response: 17May2013
p. Trial I^yMJAlone(3June 2013 UTC)
Trial:3June2013-UTC
So Ordered this21stdayofMay 2013.

DENISERLIND
COL,JA
ChiefJudge,l^^ Judicial Circuit

35177

UNITED STATES OF AMERICA
witness List Order
forthe FirstTwenty-Five
Prosecution^itnesses

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

21 May 2013

On21 May 2013,the Court ordered the United States to submit its witness list order for
the first twenty-five witnesses.
Appellate Exhibit551. The United States hereby submits the
following order lor the first twenty-five witnesses the United States intends to call in the abovecaptioned court martial:
1. SA Toni Graham
2. SA Thomas Smith
3. SPC Eric Baker
4. SGTMaryAmiatu
5. SA Calder Robertson
6. SA David Shaver
7. Mr. Mark Johnson
8. SA Antonio Edwards
9. Mr. Adrian Lamo
10. SA Charles Clapper
11. Mr. Garon Young
12. Ms.TamaraMairena
13. SA David Shaver

14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.

Mr. Mark Johnson
SA Mark Mander
Ms. Elisa Ivory (stipulation)
Mr. Troy Moul
Mr. Brian Madrid
Mr. Mark Johnson
SSG Robert Thomas
SGT Alejandro Marin
SFC Jose Anica
CW2 Kyle Balonek
Ms. Jihrleah Showman
CW3 Hondo Hack

ASHDEN FEIN
MAJ, JA
Trial Counsel
I certify that I served or caused to be served a true copy of the above on Mr. David Coombs,
Civilian Defense Counsel, via electronic mail on 21 May 2013.

ASHDEN FEIN
MAJ, JA
Trial Counsel

APPELLATE UXl lIBIT SSX
PAGE REFERF.NCED:
,
PAGE
OF
PAGES

35178

UNITED STATES OF AMERICA
Government Proposed
Trial Schedule Plan
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
FortMyer, Virginia 22211

21May2013

LASSUMEDPLANNINGFACTORS
Currently,acontested trial with no witness stipulations is expected to last approximately
12-16weeks. This approximation is based on the total numberofwitnesses for both parties and
the average witness testifying lor three hours.
The prosecution, the military defense counsel,and support staff will beTDYduring this
time to ensure proper security and prevent anyunplanned delays based on traffic,weather, or
other unlbreseen activities. Additionally,the prosecution will coordinate witness travel and
movements At any given time, there will be approximately ten witnesses traveling to or Irom
Fort Meade, or atFort Meade.
The Secretary ofDefense announced that the Department ofDefense (DoD)will
implement up tollfurlough days for DoD civilian personnel The furloughgoes into eflecton8
July 2013 Therefore, DoD civilian personnel will onlybe able to work only eight hoursaday
for lour days per week. No overtime or other typeof credit time will be available to DoD
civilian employees. However, information security personnel and defense security and
inlormation assurance experts will be exempt from furlough requirements and are authorized
appropriate overtime and other types of credit time. Court reporter workloads and exemptions
are still being considered under the current temporary employment rules and ongoing processof
contracting for additional support.
Toensure that furloughs do not cause gaps during sessions,other civilian staff will
coordinate amongst their own sections to ensure fiill coverage (i.e., furlough days will be
staggered to provide proper coverage five days per week). Five day coverage will exceed the
current schedule for many federal courts that are planning four daywork weeks in response to
the implementation ofsequestration on thejudicial system.
ILFLAN
Set forth below is the United States'proposal for the Court'sschedule subject to the
Court'sapproval.

APPELLATl^^^^^^^^^^^^^
PAGEREFERENCED^^^^
^AGE
^OF
PAGES

35179

^

A. Plan When Furlough is not in Effect
Until the furlough goes into effect, the Court will hold sessions Monday through Friday
fr^om 0930 until approximatelyl800 with 75 minutes for lunch There will be fiexibility on
when the day ends depending onadetermination by the Court to completeaparticular witnesses
testimony.
B Plan^henFurlough Is in Effect
The Court will holdsessions Monday through Friday from 0930 untill700withlhour
for lunch recess. The Court may extendasessionabsolutelyno later thanl730 and onlyif
civilian staffing is available.
C. Daily Plan Details
The Court retains fiexibility to amend the schedule, and may elect to shorten sessions or
not hold sessions on specific days.
Other than by exception,RCM 802 conferences should not occur prior to 0830 and
should conclude by0910. Ifaconference must go past 0910, the public and media will be
notified ofthe updated start time bythe bailiff
Court will not be in session on 3-7July2013based on the concert event and federal
holiday. OnWednesday,3July2013,Fort Meade Garrison will haveafireworks show and
concert that is open to local civilians and planned for approximately 10,000 people. The event
will takeplace on the main parade fieldlOOm fiom the courthouse. The Garrison alongwith the
Military District ofWashington plans to use all available military police and public affairs
support lor this event. Thursday,4July2013isalederal holiday.
This plan may be amended as required to incorporatefixturedevelopments as they occur.

ASHDENFFIN
MAJ,JA
Trial Counsel
Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David Coombs,
Civilian Defense Counsel,via electronic mail on21May 2013.

ASHDENFFIN
MAJ,JA
Trial Counsel

35180

Ford, Arthur Jr CW2 USARMY (US)

From: David E. Coombs

Sent: Tuesday, May 21, 2013 6:50 PM

To: Lind, Denise COL USARMY (US)

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

JoDean (Joe) CPT USARMY USAMDW Overgaard, Angel CPT USARMY
Whyte, Hunter CPT USARMY von Elten, Alexander (Alec) CPT USARMY
Mitroka, Katherine CPT USARMY Ford, Arthur Jr CW2 USARMY USARMY Ft
McNair Mailbox MDW Court Reporters Raffel, Michael SFC USARMY
Moore, Katrina MSG USARMY Jefferson, Dashawn MSG USARMY Fein,
Ashden MAJ USARMY MDW (US)
Subject: RE: Government Filing

Ma'am,
The Defense does not object to the proposed daily trial schedule.

v/r
David



From: Fein, Ashden MAJ USARMY MDW (us)

Sent: Tuesday, May 21, 2013 6:33 PM

To: Lind, Denise COL USARMY (US)

Cc: David E. Coombs; Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY
Morrow, JoDean (Joe) CPT USARMY USAMDN Overgaard, Angel CPT USARMY whyte,
Hunter CPT USARMY von Elten, Alexander (Alec) CPT USARMY Mitroka, Katherine
CPT USARMY Ford, Arthur Jr CW2 USARMY USARMY Ft McNair Mailbox MDW Court
Reporters Raffel, Michael SFC USARMY Moore, Katrina MSG USARMY
Jefferson, Dashawn MSG USARMY (US)

Subject: Government Filing

Ma'am,

Attached are the following two Government filings:

1. Proposed Daily Trial Schedule

2. Government witness List Order for First 25 witnesses

v/r
MAJ Fein

553 (L)




1

35181

UNITED STATES
ADDENDUM TO DEFENSE
WITNESS LIST FOR MERITS
AND SENTENCING

V.

MANNING, Bradley E., PFC

us. Army,

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 222]

DATED: 21 May 2013



On behalf of PFC Bradley E. Manning, his civilian counsel, David E. Coombs,
provides the following notice of a change to the Defense?s witness list for merits and
sentencing:

l) PT Barclay D. Keay the Defense will call CPT Keay for the merits phase, but will
no longer call CPT Keay for sentencing.

2) SGT Sheri M. Walsh - the Defense will call SGT Walsh for sentencing, but will no
longer call SGT Walsh for the merits.

3) the Defense will no longer be calling SGT Schwab as a

witness.

Respectfully submitted,

av?//lg

DAVID EDWARD COOMBS
Civilian Defense Counsel

-9

C3
tr
9
lo

35182

Appellate Exhibit 555
4 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

35183

Appellate Exhihit555
Enclosurel
^pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35184

Appellate Exhihit555
Enclosure2
4^ pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35185

Appellate Exhihit555
Enclosures
50 pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35186

Appellate Exhihit555
Enclosures
3pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

Unmarked redactions were present when Army received this document. Redactions in accordance with (b)(1)(B)
35187

UNITED STATES OF AMERICA
Government Motion for
Use of Alternative
Under MRE 505Cj)(2)

V.

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

31 May 2013

REOUESTED RELIEF
(U) The United States respectfiiUy requests the Court authorize use ofan alternative
detailed herein. Tlie United States also requests the Court order all parties and witnesses not to
identify classified infoiiuation in the alternative during open sessions or with witnesses without
security clearances, and not to identify the subject matter that foniis the basis of tliis motion.
BURDEN OF PERSUASION AND BURDEN OF PROOF
(U) As the moving party, the United States has the biuden of persuasion on any factual
issue the resolution of which is necessary to decide the motion. Rule for Coiuts-Martial (RCM)
905(c)(2). The burden of proof is by a preponderance of the evidence. RCM 905(c)(1).
FACTS

(U) The United States intends to admit the alternative as evidence at trial, and the Defense
has intimated dmiug RCM 802 conferences that it intends to use the alternative at tiial as well.
WITNESSES/EVIDENCE
(U) The United States does not request any witnesses be produced for this motion. The
United States requests that the Coiut consider the enclosures listed at the end ofthis motion.
LEGAL AUTHORITY AND ARGUMENT
(U) MRE 505(j)(2) authorizes a militaryjudge to admit an alternative form of classified
information to prevent imnecessary disclosure ofclassified information. See Military Rule of

APPELLATE EXHIBIT ssC
PAGE REFERENCED
PAGE
OF
PAGES

35188

Evidence (hereinafter "MRE") 505(j)(2) (2012).' MRE 505(j)(2) authorizes a militaryjudge to
admit proof of the contents of a document into evidence without requiring introduction of the
original. MRE 505(j)(3).

(U) The United States will oflerEnclosure3as evidence at trial in lieu ofEnclosure 2.
Witnesses will discuss the contents ofEnclosure3at trial asasubstitute to the originally created
Enclosure 2. Accordingly,the United States requests the Court:

' (U) The United States and Defense agreed to apply the 2012 Military Rules of Evidence and not to apply the
Military Rules ofEvidence as amended by President Obama on 15 May 2013, to include MRE 505 (2013). The
equivalent section in the 2013 MRE is MRE 505(k) (2013).

35189

L (U) Order both parties to use at trial the alternative identified in Enclos^ue3asasubstih^te for
Enclos^u^e2or any other related evidence Order both parties not to use at trial Enclos^u^e2or
anyothervariation.
2 (U) Order both parties not to identic nor elicit testimony regarding the specified classified
infb^^^tiondruing an open session of trial Order both parties not to discuss the specified
classified information with any witness withoutasec^u^ty clearance. Order both parties not to
isolate, highlight, nor reference the specified classified information d^n^g an open session of
trial
3 (U) The original doc^unent and the alternative a^e both classified Based on the Original
Classification Authority'sdete^^unation, the alternative will be marl^ed for classification at the
conclusion oftrial. Order that both documents be sealed pmsuant to theCorut'somnibus sealing
order at the conclusion ofthe trial.
4. (U) Order both parties not to identify publicly the subject matter that serves as the basis ofthis
the Govermnent's3IMay 2013 motion and this protective order.

^^originalsigned^^
ASHDENFEIN
MAJ,JA
Trial Counsel

35190

(U) I certify that I served or caused to be served a true copy ofthe above, via SIPRNET
email, to Mr. David Coombs, Civilian Defense Coimsel, though the defense security experts on
31 May 2013.

//original signed//
ASHDEN FEIN
MAJ, JA
Trial Coimsel

4 Enclosures
1. OCA Declaration, 30:
2.
3.
4. Draft Ruling and Protective Order (U)

35191

IN THE UNITED STATES ARMY FIRST JUDICIAL CIRCUIT
UNITED STATES OF AMERICA
V.

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

Ruling and Protective Order:
Government MRE 505Cj)(2) Alternative

DATED:

(U) Findings of Fact and the Law:
(U) Military Rule of Evidence (MRE) 505(j) (2012) governs the introduction of classified
information into evidence at trial.

(U) The Court finds that the information in the above paragraph is properly classified under
Executive Order 13526 and MRE 505. The properly classified information is referenced herein
as "specified classified information."
(U) The Government presented evidence that use of the original document at trial may result in
disclosure of the specified classified information.
(U) Conclusions of Law:
(U) MRE 505(j)(2) permits the Court to authorize use of a copy as an alternative "to prevent
unnecessary disclosure of classified information." See MRE 505(j)(2). The Government
established good cause for use of an altemative document because use of the original could
disclose classified information. The Court issues this protective order to authorize the use of the
altemative and to preclude identification of the specified classified information.
(U) I T IS ORDERED:
1. (U) Both parties shall use at trial the altemative identified in Enclosure 3 of the Government's
31 May 2013 motion as a substitute for Enclosure 2 of the same motion or any other related
evidence. Neither party shall use at trial Enclosure 2 or any other variation of the Government's
31 May 2013 motion.

35192

2. (U)Neitherparty identify nor elicit testimony regarding the specified classified information
during an open session oftrial. Neither party shall discuss the specified classified information
with any witness withoutasecurity clearance. Neitherparty shall isolate, highlight, nor
reference the specified classified information during an open session oftrial.
3. (U) The original document and the altemative are both classified. Based on the Original
Classification Authority'sdetermination, the altemative will be marl^ed lor classification at the
conclusion oftrial. Both documents will be sealed pursuant to the Court'somnibus sealing order
at the conclusion ofthe trial.
^.(U) Neitherparty may publicly identify the subject matterthat serves as the basis ofthis the
Govemment's31May 2013 motion and this protective order.
(U) ORDERED, this

dayof

2013

DENISERLIND
COL,JA
Chief Judge, 1st Judicial Circuit

35193

UNITEDSTATESOF AMERICA
Section IH
Disclosure

V.

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

1 June 2013

1. On21 February 2012, the United States filed its original Section 111 Disclosure. Operating
under the same constraints as outlined in the previous filing, the United Statesfilesthis updated
Disclosure under its continuing obligation.
2. Pursuant to MRE 301(c)(2), the United States has not promised immunity or leniency to any
witness in this case in exchange fortheirtestimony,but did grant immunity to SFC (Retired)
Adl^insandCW2Balonel^. The United States is still processing under Army Regulation 2^-10,
paragraph2^dimmunityforCPTLim.
3. Pursuantto MRE 30^(d),the United States maizes the following updated disclosure of
statements, oral and written, made by the accused that are relevant to the case, Imown to the trial
counsel, and within the control ofthe ArmedForces:
See Enclosurel.
^.PursuanttoMRE311(d), the United States is not in possession of any new evidence seized
from the person or property ofthe accused, or believed to be owned by the accused, that it
intends toofferinto evidence against the accused at trial.
5. Pursuant to MRE 321(c), the United States is not aware of any evidence ofaprior eyewitness
identification ofthe accused asalineup or other identification process that it intends to offer into
evidence againstthe accused attrial.
6. The United States will notify the defenseofanyupdates to paragraphs 2,3,^,and5,as they
become l^own.

5HDEN FEI
MAJ, JA
Trial Counsel

APPELLATE EXHIBIT 55?
PAGEREFERENCED:
PAGE
^OF
PAGES

35194

UNITED STATES OF AMERICA
Section I I I
Disclosure

V.

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

Enclosure 1
1 June 2013

BATES # Beginning

BATES # End

ManningB_00445514
ManningB_00446068
ManningB_00446133
ManningB_00446150
ManningB_00446169
ManningB_00446181
ManningB_00446190
Mannings 00446193
ManningB_00446272
ManningB_00446294
ManningB_00446307
ManningB_00446473
ManningB_00446535
ManningB_00446698
ManningB_00446703
ManningB_00446713
ManningB_00446718
ManningB_00446721
ManningB_00446729
ManningB_00446733
ManningB_00446737
ManningB_00446741
ManningB_00446745
ManningB_00446749
ManningB_00446753
ManningB_00446757
ManningB_00446761
ManningB_00446765
Mannings 00446769
ManningB_00446773
ManningB_00446777

ManningB_00445532
ManmngB_00446075
ManningB_00446133
ManningB_00446168
ManningB_00446180
ManningB_00446185
ManningB_00446192
ManningB_00446201
ManningB_00446293
ManningB_00446306
ManningB_00446472
Mannings 00446534
ManningB_00446697
ManningB_00446702
ManningB_00446712
ManningB_00446717
ManningB_00446720
ManningB_00446728
ManmngB_00446732
ManningB_00446736
ManningB_00446740
ManningB_00446744
ManningB_00446748
ManningB_00446752
ManningB_00446756
ManningB_00446760
ManningB_00446764
ManningB_00446768
ManningB_00446772
ManningB_00446776
ManningB_00446780

Date Produced
to Defense
15-May-12
15-May-12
15-May-12
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35195

ManniogS
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
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Mannings
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Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings

004467^1
004467^3
004467^5
004467^7
004467^9
00446791
00446793
00446794
00446795
00446796
00446797
0044679^
00446799
00446^00
00446^07
00446^11
00446^1^
00446^40
00446^42
00446^4^
00446^52
00446^56
00446^60
00446^64
00446^6^
00446^72
00446^76
00446^^0
00446^^4
00446^90
00446^92
00446^94
00446^96
00446^9^
00446^99
00446900
00446901
00446902
00446903
00446904
00446905
00446914
00446933

Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
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Mannings
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Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings
Mannings

004467^2
004467^4
004467^6
004467^^
00446790
00446792
00446793
00446794
00446795
00446796
00446797
0044679^
00446799
00446^06
00446^10
00446^15
00446^39
00446^41
00446^47
00446^51
00446^55
00446^59
00446^63
00446^67
00446^71
00446^75
00446^79
00446^^3
00446^^9
00446^91
00446^93
00446^95
00446^97
00446^9^
00446^99
00446900
00446901
00446902
00446903
00446904
00446913
00446932
00446936

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35196

Mannings 00446937
Mannings 00446940
Mannings 00447083
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Mannings 00504427
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Mannings 00504477

15 May 12
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ManningB_00523722
ManningB_00523724
ManningB_00523726
Mannings 00523728
ManningB_00523730
ManningB_00523750
ManningB_00523768
ManningB_00527312
ManningB_00527321
ManningS_00527326
ManningB_00527328
Mannings 00527331
ManningS_00527332
ManningB_00527333
ManningS_00527334
ManningB_00527337
ManningB_00527338
ManningB_00527339
ManningB_00527340
ManningB_00527341
ManningB_00527352
ManningB_00527399
ManningB_00527400
ManningB_00527401
ManningB_00527404
ManningB_00527422
ManningB_00527423
ManningB_00527424
ManningB_00527425
ManningB_00527454
ManningB_00527469
ManningB_00527470
ManningB_00527471
ManningB_00527472
ManningB_00527473
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ManningB_00504478
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ManningB_00523712
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ManningB_00523727
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ManningB_00523731
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31 May 13
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31 May 13



IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
REQUEST FOR PUBLIC
v. OR, IN THE ALTERNATIVE,
MOTION TO INTERVENE TO
MANNING, BRADLEY E., PFC VINDICATE THE RIGHT TO
U.S. Army,% PUBLIC ACCESS
Headquarters an ea quarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall DATED: May 31, 2013
Fort Myer, VA 221 1 I

RELIEF SOUGHT

1. Pursuant to Rules of Court-Martial 806(a), 806(b) and 806(c), Petitioners William
Simpich, Scott Galindez, and Kay Rudin of Reader Supported News make a request for public
access; or, in the alternative, move to intervene to vindicate the right to public access and seek an
order permitting full public and media access to the proceedings of the Manning court-martial.

BURDEN PERSUASION AND BURDEN OF PROOF

2. The burden of persuasion is placed on the moving party. R.C.M. 905(c)(2). The party
that is seeking to prevent the media right of access has the burden of proof to show, in specific, on
the record, ?ndings that (I) closure is essential to preserve higher values or compelling interests; (2)
individualized, case-by-case findings thatjustify each closure; (3) closure is narrowly tailored to
serve the compelling interest. Press Enterprise Co. v. Superior Court, 464 US 50], 5l3
Press Enterprise v. Superior Court, 478 US I, 9-I4 (I984).

ARGLIMENI

3. PFC Bradley E. Manning was arrested in May 20] 0 and eventually was charged in this
court-martial with various offenses arising from his alleged leaking of government documents to
Wikileaks. His trial is scheduled to begin on June 3, 20] 3, at the Ft. George G. Meademilitary
installation in Aime Arundel County, Maryland.

4. Manning?s trial and his treatment during his con?nement have been the subject of
intense national and international media scrutiny. Nevertheless, although the public has
been permitted to attend some portions of Manning?s pretrial court-martial proceedings,

petitioners allege that reasonable media access to the trial proceedings has been denied in the
following ways:

5. The courtroom has ten seats for the media and the public. A media operations center

1

35200

outside of the courtroom has been created to seat 70 members of the media corps, who will have
access to their laptop computers to type their observations. In the past, a theater was made
available as an ?over?ow room?, which may be made available again for the n1ore than 270
members of the media, as well as the general public, who will be unable to access the press room
or the courtroom.

A. Based on past experience, the media and public barred from the courtroom and media
operations center will be consigned to the overflow room, where they will only be
able to passively watch these transmissions and write down their observations with
pen and pencil. This situation creates a two?tier system those who can type their
observations, and those who cannot.

B. The court is exercising its discretion to have the military provide video and audio
transmissions to the press and the public in the press room and the overflow room.
However, the press and the public will not be allowed to capture the video and audio
even though the military will retain the ability to capture these transmissions. This
situation creates a two-tier system those who can capture the transmissions, and
those who cannot.

C. Two courtroom artists have been given access to the courtroom throughout the
proceedings, and that relationship seems likely to continue. Petitioner Kay Rudin, the
courtroom artist with Reader Supported News, deserves an equal opportunity to
access to the courtroom. A courtroom artist cannot accurately convey to the public
what is going on in the courtroom without direct access to the courtroom itself. This
situation creates a two-tier system those who can portray the proceedings, and those
who cannot.

D. Petitioners William Simpich and Scott Galindez are reporting on the Manning trial for
Reader Supported News. They were mandated to provide articles on their previous
military coverage as a prerequisite for obtaining credentials. These previous articles
were critical of the military and its procedures. Mr. Simpich, Mr. Galindez, and Ms.
Rudin have been denied press credentials, and are now forced to struggle for a spot in
the overflow room without knowing the basis for their exclusion. These petitioners
believe it is on the basis of their reporting and/or their association with one another.
These petitioners are also informed that the stenographer hired by the Guardian
newspaper from the United Kingdom at considerable expense was denied access to
the media observation room, which means that she cannot perform her duties which
would aid the entire media corps and the public.

6. Due to the facts above, these petitioners, as well as the media and the public, are unable
to engage in careful observation and analysis in one of the most important cases involving the
alleged disclosure of classified information since the Pentagon Papers.

7. Rule of Court-Martial 806(a) states that the court-martial shall be open to the public. The
Discussion of this rule states that ?when public access to a court~rna.rtial is limited for some
reason, including lack of space, special care must be taken to avoid arbitrary exclusion of



speci?c groups or persons. This n1ay include allocating a 1?easonable number of seats to I
members of the press a11d to relatives of the accused.? This directive is made 111ore specific by
Rule 806(b), which states that when specific persons are excluded from the courtroom, ?the
military judge 111ust make ?ndings on the record establishing the reason for the exclusion, the i
basis for the militaryjudge?s belief that exclusion is necessary, and that the exclusion is as
narrowly tailored as possible?. The petitioners have the right to know the process that was used 1
to determine who was excluded from the courtroom and/or the media room, and whether the
judge made the narrowly tailored ?ndings as mandated by Rule 806.

8. Rule 806(0) states that video or audio transmission is generally barred, but that ?the
militatyjudge may, as a matter of discretion, permit contemporaneous closed-circuit video or
audio transmission to permit viewing or hearing. . .by spectators when courtroom facilities are
inadequate to accommodate a reasonable number of spectators?.

9. Neither Judge Lind, nor any other government official, has indicated in the
military court proceedings that the denial of public access as described is necessitated by a need
to preserve secrets or classified information or to promote any other legitimate governmental
interest.

10. A cloak of secrecy l1as been drawn over the Manning proceedings despite written
requests n1ade by several of the named plaintiffs (made on their own behalf and 011 behalf of the
public) and by various other media organizations to the military court seeking greater public
access on issues involving access to pretrial hearings and speci?c documents. 011 these issues, .
Judge Lind construed a letter from the Center for Constitutional Rights as a motion to intervene
for the purpose of seeking to vindicate the right of public access to the Manning proceedings,
and denied the motion. The Court of Appeals for the Armed Forces (CAAF) ultimately held, in a
recent 3-2 decision, that the military appellate courts lacked jurisdiction over plaintiffs? claims.
As the CAAF dissenters suggested, the Center for Constitutional Rights have now ?led an action
in an Article Court.

11. As set forth herein, the public and press have First Amendment and common law right
to prompt a11d contemporaneous access to the records of proceedings of the courts-martial trial
proceeding. It is also critical to honor the rights of equal protection under the law.

12. Petitioners are likely to succeed on the merits of their claim that defendants are
violating petitioners? rights under the First Amendment and common law by refusing access to
courts-martial documents and proceedings. As the Supreme Court has repeatedly held, even
minimal infringement upon First Amendment values constitutes irreparable injury sufficient to
justify injunctive relief. The intense public interest in the Manning court martial would be
served by enjoining the military from continuing to deny adequate access to this proceeding.

13. If necessary, members of the press and public may bring actions for injunctive relief
directly under the First Amendment. In addition, under 28 U.S.C. 1361, ?district courts shall
l1ave original jurisdiction of any action in the nature of mandamus to compel an of?cer or
employee of the United States or any agency thereof to perform a duty owed to the plaintiff?
This First Amendment right to access applies in military courts as well. Globe Newspaper Co. v.
Superior Court, 137 U.S. 596, 603-05 (1982); ABC, Inc. v. Powell, 47 MJ 363, 365 (1997)



(?When an accused is entitled to a public hearing, the press enjoys the same right and has
standing to complain if access is denied".) Furthermore, the petitioners? right to equal
protection under the law l1as been denied when the military failed to issue press credentials in a
transparent process and without the requisite findings by the military judge.

14. Nixon v. Warner Communications, Inc. 435 US 589, 597 (1978) speci?cally addresses
the right of access to information presented at trial, stating that both the media and the public
have a First Amendment right to attend, see and hear what transpires in a courtroom. In Nixon,
the media was provided transcripts of the audiotapes. In Nixon, there was no issue of the
government trying to prevent information from reaching the public. Ln Manning, the most
crucial aspects of the trial are being actively prevented from reaching the public.

15. If the media or the public in the media room or the overflow room are denied the right
transcribe the proceedings by typing their observations; or to c_apture the video or audio
transmissions presented outside of the courtroom; or to adequately portray the proceedings inside
the courtroom; or to obtain access to the courtroom, media observation center or the over?ow
room by means of a transparent process, valuable information will not reach the public while
equal protection and Amendment rights are violated. It is the understanding of the petitioners
that some of Judge Lind?s views on this topic have been published see Lt. Col. Denise R. Lind,
Media Rights of Access to Proceedings, Information, and Participants in Military Criminal
Cases, 163 Mil. L. Rev. 1 (2000).
Law/Military Law As
recognized in the aforementioned article, ?right of access is the right to attend a proceeding and to

hear, sec, and communicate observations about it?. Also see RichmondNewspapers, Inc. v.
Commonwealth, 448 US 555, 576 (I 980).

16. The Supreme Court considers an attempt by the government to delay publication of
information as a prior restraint. Prior restraints are presumed to be unconstitutional. Nebraska Press
Association v. Smart, 427 US 539, 559-56] (1976) found a government order to delay publication to
be a prior restraint. Preventing the media and the public from typing their observations in a room
that cannot possibly disrupt the court proceedings is a similar type of prior restraint. Withholding the
video and audio transmissions from the media and the public but not the military is an even more
serious prior restraint. Delay will result because a reporter can type far more quickly than write with
a pen or pencil. Nor is there any good reason to prevent the media and the public from capturing the
video and audio transmissions of the trial. Security is not compromised in any conceivable way. If
we can observe these transmissions, why can?t we communicate these transmissions directly to the
pubhc?









35203

CONCLUSION

17. Petitioners ask the Court to act on this request for full public access, with complete
transparency, and to honor the request for equal protection under the law, pursuant to the First
Anlendment and the procedures as set forth i11 R.C.M. 806 as soon as possible, a11d ideally before
the close of busi11ess on Friday, May 31, 2013. Copies of this request are being served on the
judge and on the offices of the prosecution a11d the defense.

Respectfully submitted,



SIMPICH
SCOTT GALINDEZ

KAY RUDIN
on behalf of READER SUPPORTED NEWS

CERTIFICATE OF SERVICE

35204

I hereby certify that paper copies of this motion were sent on the same day by same-day courier

to the following:

Colonel Denise R. Lind

ChiefJudge, Judicial Circuit

.S. Army Trial Judiciary

.S. Army Military District of Washington
Office of the Staff Judge Advocate

103 Third Avenue, SW, Suite 100

Fort McNair, DC 20319

Maj. Gen. Michael S. I_.innington

U.S. Army Military District of Washington
Office of the Staff Judge Advocate

103 Third Ave. S.W., Suite 100

Ft. McNai1', DC 20319

And that an e?n1ail copy of this motion was sent on the same day to:

David E. Coombs
in

May3l,20l3



WILLIAM M.

35205

DEPARTMENT OF THE ARMY
u.s. ARMY MILITARY DISTRICT or WASHINGTON
103 THIRD AVENUE
FORT LESLEY J. MCNAIR, oc 20319-5013




7-


REPLY TO
ATTENTION or

ANCG 23 MAY 2013

MEMORANDUM FOR SFC

SUBJECT: Grant of Testimonial Immunity

1. As an of?cer empowered to convene general courts-martial and pursuant to Rule for Courts-
Martial (R.C.M.) 704, I hereby make the following ?ndings:

a. You possess information relevant to the pending court martial - United States v. PFC
Bradley Manning.

b. Based on your privilege against self-incrimination, you may refuse to fully convey the
information you possess regarding this case.

c. Your testimony before any court-martial that may be convened to try PFC Manning, and
your cooperation with law enforcement o?icials and counsel investigating allegations that may
result in such proceedings, is necessary to the public interest, including the needs of good order
and discipline of this command.

d. Based on the enclosed subpoena, you have been ordered to appear and testify at this court-
martial. S3 Enclosure.

2. No testimony or other information given by you pursuant to this enclosed subpoena or any
infonnation directly or indirectly derived from such testimony shall be used against you in a
criminal case, except in a prosecution for perjury, giving a false statement, or otherwise failing to
comply with this enclosed subpoena.

3. The grant of immunity embodied in this order constitutes a grant of testimonial immunity
pursuant to R.C.M. 704(a)(2) and becomes effective upon service on SFC ?by the
trial counsel assigned to United States v. PFC Bradley Manning.

Wm?
Encl CHAEL . Ll

as Major General, U.
Commanding



APPELLATF 55%

PAGE
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35206

DEPARTMENT OF THE ARMY
u.s. ARMY MILITARY DISTRICT or WASHINGTON
103 THIRD AVENUE
roar LESLEY J. MCNAIR, oc 20319-5013



REPLY TO
ATTENTION OF

W30 23 MAY 2013

MEMORANDUM FOR CWZH, Headquarters and Headquarters Company,
Headquarters and Headquarters atta ion, th Mountain Division (LI), Fort Drum, NY 13602

SUBJECT: Grant of Testimonial Immunity and Order to Testify
1. As an officer empowered to convene general courts-martial and pursuant to Rule for Courts-
Martial (R.C.M.) 704, I hereby make the following ?ndings:

a. You possess information relevant to the pending court martial - United States v. PFC
Bradley Manning.

b. Based on your privilege against self-incrimination, you may refuse to fully convey the
information you possess regarding this case.

c. Your testimony before any court-martial that may be convened to try PFC Manning, and
your cooperation with law enforcement of?cials and counsel investigating allegations that may
result in such proceedings, is necessary to the public interest, including the needs of good order
and discipline of this command.

2. Based on the above facts and pursuant to R.C.M. 704, I hereby order you to fully cooperate
with and provide truthful and complete information to law enforcement officials and counsel
during the investigation of PFC Manning, and to further provide truthful and complete testimony
before any administrative board or court-martial convened to process or try PFC Manning.

3. No testimony or other information given by you pursuant to this order or any information
directly or indirectly derived from such testimony shall be used against you in a criminal case or
under Article 15, UCMJ, except in a prosecution for perjury, giving a false statement, or
otherwise failing to comply with this order.

4. The grant of immunity embodied in this order constitutes a grant of testimonial immunity
pursuant to R.C.M. 704(a)(2) and becomes effective upon service on CW2 -k by the trial
counsel assigned to United States v. PFC Bradlev Marming.



MICHAEL .
Major General, U.
Commanding

i-.Xl
PAGE
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35207

Media Advisory
The U.S. Army Military District of Washington
Guardians of the Nation's Capital

FOR IMMEDIATE RELEASE 13-15

DATE: May 10, 2013

- MEDIA COVERAGE OF COURTMARTIAL

-

WASHINGTON - The militaryjudge has scheduled a court martial in the case of United States vs. Pfc. Bradley
E. Manning, beginning Monday, June 3 at 9:30 a.m., at Fort George G. Meade, Md. Manning is charged with
aiding the enemy; wrongfully causing intelligence to be published on the internet knowing that it is accessible to
the enemy; theft of public property or records; transmitting defense information; fraud and related activity in
connection with computers; and for violating Army Regulations 25-2 "Information Assurance" and 380-5
"Department of the Army Information Security Program."
Press credentials to cover United States vs. Pfc. Bradley E. Manning, will be granted to journalists who
are employed by accredited news organizations for the purpose of editorial coverage.
Press credentials will be granted to reporters from the followingtypesof news media:
Newspapers, weeklies, and magazines
Wire services
Broadcast media
Web media
Accredited freelance writers
Required Material for Receiving Official Approval
For journalists:
• Media identification, such as a local, national and international accredited press pass, issued by a
recognized news organization.
• Letter on official letterhead from the editor of a publication/web site or producer of a broadcast
program certifying the affiliation, verifying assignment to the legal proceedings, and including the
editor's contact information.
For journalism students:
A letter on official school letterhead, signed by a department professor, verifying assignment to the
legal proceedings and including the professor's contact information.
For freelance journalists:
• Copies ofbylined articles and an official letter of assignment from the editor/producer from an
accredited news organization for which you will be covering.
For newsletter media:
• Newsletter media must submit current issues of their newsletter containing at least one bylined article.
If a representative was registered as media at previous legal proceedings, one of the issues submitted
must illustrate the resulting editorial coverage.

-more-

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35208

I^or reporters from online media and bloggers:
^

Reporters must provide appropriate media credentials as noted above for journalists.

^

Bloggers must provide the URL for the website for which they are writing.

^ Examples ofposts that demonstrate recent coverage ofthe militaryjudicial system must be supplied.
U.S.Army Military District ofWashington Public Affairs reserves the right to grant press credentials ona
case-by-case basis. Circumstances and number of media requesting credentials may make it that not all
requests can be granted; however,every effort will be made to ensure varied media representation.
Accredited media organizations interested in covering the hearing must register for credentials by email to
usarmv.mcnair.mdw.mbx.mediadesk-omb^mail.mil. Registration must be completed no later than2p.m.,
Wednesday,May 29. Information listed below isrequiredforregistration
a. Name ofthe organization
b. Number of personnel attending
c. Names of personnel attending
d. Is your organization bringingalive truck, and if so what size7
e. Aphone number where you can be reached after hours in case of schedule changes,
f News assignment editor/telephone number/email
g.Yehicle make/model/year/color; license tag number/state
^I^ITORSNOTFS/MFI^IAACCFSS INFORMATION:
1. Due to limited number of media seating within the courtroom, this court-martial will beapooled event. Not
all requests can be granted; however, every effort will be made to ensure varied media representation.TheU.S.
Army Military District ofWashington Public Affairs Office will contact media outlets with their credential status
nolaterthan^p.m.,Thursday,May30

2. All media are required to present press credentials, sign ground rules, and fbrfeitaphoto ID in order to gain
access to the military installation and the hearing.
3. Electronic devices of any kind(e.g. cell phone, iPad,iPod,Blackberry,voicerecorder,video recorder,
etc.)are not allowed in the courtroom. These items must be left in your vehicle.
^. Asecurity sweep of equipment will take place prior to gaining access to the military installation.Personnel
attending the hearing will be subject to magnetometer screening and/or search prior to entering any ofthe secured
areas.
5. Photographers and videographers will be pre-positionedinafixed press pit outside the courtroom. All live
trucks will be parked atadesignated parking area and be removed no later than one hour after court recesses for
the day,understanding fiexibility may be required based on time of recess and the news cycle.
^. All updates during the hearing will be given at the media operations center. All on camera interviews will be
conducted at the fixed press pit outside ofthe courtroom or the stand-up area by the live trucks.
^. Credentialed media must arrive at the designated time provided or they will not be credentialed that day.
30

35209

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35319

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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