Title: Memo Determinations as to Def Req Evidence, 15 Dec 11

Release Date: 2014-03-20

Text: 0Attachment DEPARTMENT OF THE ARMY150TH JUDGE ADVOCATE GENERAL DETACHMENT (LSO)MG ALBERT c. LIEBER USAR CENTER6901 TELEGRAPH ROADALEXANDRIA, VIRGINIA 22310-3320REPLY TOATTENTION OF AFRC-MJVA 15 December 2011MEMORANDUM FOR US v. Marming Article 32(b) ParticipantsSUBJECT: Determinations as to Defense Requested Evidence1. This document provides my determinations as to defense requested evidence listed in thedefense?s 1 December 2011 request to compel production of evidence:a. The video of PFC Manning being ordered to surrender his clothing at the direction ofCW4 Averhart and his subsequent interrogation on 18 January 2011 this evidence isnot relevant to the form of the charges, the truth of the charges, or infonnation as maybe necessary to make an informed recommendation as to disposition; speci?cally, thecircumstances surrounding PFC Manning?s placement in suicide risk are not relevantto a determination as whether PFC Manning committed the charged offenses and ifso, what the disposition of those charges should be.b. A copy of adverse administrative or UCMJ actions, and all supporting documentationand rebuttal materials, based upon the AR 15-6 investigation conducted by LTGCaslen or any other governmental investigation this evidence is not relevant to theform of the charges, the truth of the charges, or information as may be necessary tomake an informed recommendation as to disposition; speci?cally, whether or notother individuals received adverse action as a result of their conduct described in thatinvestigation (and note that there is no indication that such conduct was substantiallysimilar to the totality of the conduct PFC Manning is alleged to have engaged in) isnot relevant to a determination as to whether PFC Manning committed the chargedoffenses and if so, what the disposition of those charges should be.c. An Encase forensic image of each computer from the T-SCIF and the TOC of HHC,2BCT, 10?? Mountain Division, FOB Hammer, Iraq this evidence is relevant as itcould help establish that it was common for soldiers in these locations to placeunauthorized software to these computers; however, this evidence is not reasonablyavailable because its signi?cance is lessened by the fact it is cumulative to thetestimony of at least CPT Keay and CPT Cherepko, and as the government hasindicated that it is still working to preserve this evidence, its limited signi?cance isnot outweighed by the delay of obtaining this evidence.d. A damage review or assessment of the alleged disclosures in this case led by Mr.Russell Travers, any communications concerning those disclosures by anygovernmental employee to President Obama, and any communications concerningthis case by President Obama to the Departments of Defense, State, or Justice thisevidence is not relevant to the form of the charges, the truth of the charges, orinfonnation as may be necessary to make an informed recommendation as to SUBJECT: Determinations as to Defense Requested Evidencedisposition; speci?cally, the extent of the harm caused by the alleged disclosures andwhether any statements by President Obama may have in?uenced the prosecution inthis case are not relevant to a determination as to whether PFC Manning committedthe charged offenses and if so, what the disposition of those charges should be.e. Damage assessment conducted by the Information Review Task Force and the Of?ceof Security this evidence is not relevant to the form of the charges, the truth of thecharges, or information as may be necessary to make an informed recommendation asto disposition; speci?cally, the extent of the harm caused by the charged offenses isnot relevant to a determination as to whether PFC Manning committed the chargedoffenses and if so, what the disposition of those charges should be. Additionally, Iunderstand from the 12 December 2011 telephone conference with CPT Fein and Mr.Coombs that the government does not have the authority to disclose damageassessments and thus I conclude that any evidence of damage assessments is notreasonably available.f. Collateral investigations by the Department of State, the FBI, DIA, the Of?ce of theNational Counterintelligence Executive, and the CIA this evidence is not reasonablyavailable; as this was a joint investigation, this evidence is cumulative with evidenceof the CID case ?le, and its limited signi?cance is not outweighed by the delay inobtaining this evidence.g. The Department of Justice investigation into the alleged disclosures as referenced byAttorney General Holder, including grand jury material, 18 U.S.C. Section 2703(d)orders, and search warrants this evidence is not reasonably available; as this was ajoint investigation, this evidence is cumulative with evidence of the CID case ?le, andalso the government has said it has no knowledge of grand jury testimony or searchwarrants from the Department of Justice, which leads to a conclusion that the limitedsigni?cance of this evidence is not outweighed by the delay in obtaining it.h. The Department of State damage assessment review conducted by its task force ofover 120 individuals this evidence is not relevant to the form of the charges, thetruth of the charges, or information as may be necessary to make an informedrecommendation as to disposition; speci?cally, the extent of the harm caused by thecharged offenses is not relevant to a determination as to whether PFC Manningcommitted the charged offenses and if so, what the disposition of those chargesshould be. Additionally, I understand from the 12 December 2011 telephoneconference with CPT Fein and Mr. Coombs that the government does not have theauthority to disclose damage assessments and thus I conclude that any evidence ofdamage assessments is not reasonably available.i. The Damage Assessment of Compromised Information required to be submitted tothe SSO under 5105.21-M-l once an SCI security of?cial determines that asecurity violation has occurred, and the ?nal security investigation violation reportsubmitted to the SSO under this evidence is notreasonably available because the government has indicated that this regulation onlyapplies to violations involving the compromise of Sensitive CompartmentedInformation material and there is currently no evidence indicating a compromise ofsuch material in this case.AFRC-MJVA . .SUBJECT: Determinations as to Defense Requested Evidence2. Please address all questions or concerns to the undersigned at and 3. POC for this memorandum is the undersigned.PAUL R. ALMANZA LTC, JA. USARInvestigating Of?cerF:MAJ Matthew KemkesPaul Bouchard PT Ashden Fein Mr. David oombs (at PT JoDean Morrow (atPT Angel Overgaard (atCPT Jeffrey Whyte (aLTC Mark Holzer

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