Title: Ruling: Def Motion to Compel Discovery, 23 Mar 12

Release Date: 2014-03-20

Text: IN 1HE UNITED STATES ARMYFIRST WDICIAL CIRCUIT))UN I T E D S T ATE Sv.))MANNING, Bradley E ., PFCUS. . Army, (b) (6)Headquarters and Headquarters Company,U.S. Army Garrison, Joint Base Myer­Henderson Hall, Fort Myer, VA 22211)RULING: DEFENSE MOTIONTO COMPE L DISCOVERY))DATED: 23 March 2012))Defense moves the Court to compel discovery. Government opposes. After consideringthe pleadings, evidence presented, and argument of counsel, the Court f nds and concludes thefollowing:Factual Findings:1 . In its Motion of 14 February 2012, the Defense moved the Court to compel the followingdiscovery from the GovernmentlAW RCM 70l(a)(2) (Documents, tangible objects, and reportswithin the possession, custody, or control of military authorities that is material to thepreparation of tbe defense), 70l(a)(5)(Information to be offered by the Government atSentencing), 705(a)(6)(Evidence favorable to tbe Defense) and 906(b)(7)(Motion forAppropriate Relief regarding discovery and production of evidence). The Government responseis listed below each item:Video ina. FOIA2 ofII: A copy of any Freedomoflnformation Act (FOIA) request and any response or internal discussions of any such FOIArequest that is related to the video that is the subject of Specification 2 of Charge II.On 3 October 2011, the Government produced all enclosures to anyFreedom of !nformation Act (FOIA) response, specifically BATES 00000772-000008 5 1 . On 1 5GovernmentMarch 2012, the Government advised the Court it had given the Defense the informationrequested.b.Video: The video of PFC Manning being ordered to surrender his clothing at thedirection of CW4 James Averhart and his subsequent interrogation by CW4 Averhart on 1 8January 201 1 . The Defense filed a preservation of evidence request over one year ago, on 1 9January 201 1 for this information. The Defense alleges the Government produced the video ofPFC Manning being ordered to surrender his clothing, but not the video of the subsequentinterrogation by CW4 Averhart. The Defense alerted the Government to the need to locate theadditional video in a telephone conversation on 12 December 2011. The Defense proffered thatthe requested video is relevant to support the accused's claim of unlawful pretrial punishment.The Defense presented no evidence that the video exists.Upon Defense request, the United States promptly preserved allGovernmentQuantico videos requested by Defense. On 6 December 2011, the United States produced allvideos of the alleged Quantico incident, specifically BATES 00408902 00408903. The allegedvideo referenced by the Defense does not exist.In an email to the Court dated 20 March 2012, the Defense accepted Trial Counsel'srepresentation that the Government has provided the Defense with all videos provided to theGovernment by Quantico.An Encase forensic image of each computer from the Tacticalc. EnCase ForensicSensitive Compartmented Information Facility (T SCIF) and the Tactical Operations Center(TOC) of Headquarters and Headquarters Company (HHC), 2nd Brigade Combat Team (BCT),lOth M ountain Division, Forward Operating Base (FOB) Hammer, Iraq. On 30 September 2010CID requested preservation of hard drives used during the 2d BCT deployment to Iraq. TheDefense submitted a preservation request for this evidence on 21 September 2011.GovernmentOn 21 September 2011- more than one year after the accused's tmitredeployed back to Fort Drum, New York- the Defense requested that the United Statespreserve these hard drives. The Government identified four commands or agencies that maypossess hard drives responsive to this request and submitted a Request to Locate and PreserveEvidence to each command or agency. Those entities included: (1 ) 2d Brigade Combat Team,lOth M ountain Division (2/10 M TN); (2) the Federal Bureau oflnvestigation (FBI); (3) ThirdArmy, United States Army Central (ARCENT); and (4) the Computer Crime Investigative Unit,U.S. Army Criminal Investigative Command (CCIU). The Government request to 2/10 M TNyielded the preservation of 181 hard drives, of which the United States has identified thirteen asbeing located within the SCIF during the unit's deployment to FOB Hammer. None of thosethirteen hard drives contained the "bradley.manning" user profile. At the Article 39(a) sessionon 15 March 2012, the Government advised there were 14 hard drives responsive to the Defensediscovery request. The Government argues the hard drives are not relevant and necessary for theDefense tmder RCM 703(t) and that, because they are classified, the rules of production tmderM RE 505 should govern whether the images are discoverable.Assessments andd.assessments and records from closely aligned investigations:The foUowing damage(I) CentralAny report completed by the WL Taskforce (WTF) andany report generated by the WTF tmder the direction of former Director Leon Panetta.of Defense: The damage assessment completed by the Information(2)Review Task Force (IRTF) and any report generated by the IRTF under the guidance anddirection of former Secretary of Defense Robert Gates. Additionally, the Defense requests allforensic results and investigative reports by any of the cooperating agencies in this investigation(DOS, FBI, DIA, the Office of the National Counterintelligence Executive (ONCIX), and theCIA).2(3)of Justice: Any documentation related to the DOJ investigation into thedisclosures by WikiLeaks concerning PFC Bradley Manning, including any grand jury testimonyor any information relating to any 18 U.S.C. § 2703(d) order or any search warrant by thegovernment of Twitter, Facebook, Google or any other social media site.(4)of State: The damage assessment completed by the DOS, any reportgenerated by the task force assigned to review each released diplomatic cable, and any report orassessment by the DOS concerning the released diplomatic cables.GovernmentThe Government intends to disclose all relevant and necessaryclassified and unclassified grand jury testimony that the Government is authorized under thefederal rules to the Defense. The Government: ( 1 ) confirms the existence of completed WTFand IRTF damage assessments; (2) confirms the existence of a damage assessment by DOS thatis not complete; and (3) denies that ONCIX has produced an interim or final damage assessment.At the Article 39(a) session on 1 5 March 2012, the Government stated that it had no authority todisclose or discuss the requested damage assessments. The Government argues that Defense hasnot demonstrated that the damage assessments are relevant and necessary to an element of theoffense or a legally cognizable defense and otherwise inadmissible in evidence under RCM703(f) because the Defense is confusing prospective OCA classifications determinationsassessing whether damage could occur (relevant to elements of charged offenses) with hindsightdamage assessments determining what damage did occur (not relevant to elements of chargedoffenses). The Government further responded that it is unaware of any forensic results andinvestigative reports from within the DOS, FBI, DIA, ONCIX, or the CIA, that contributed toany law enforcement investigation.2. The accused is charged with five specifications of violating a lawful general regulation, onespecification of aiding the enemy, one specification of disorders and neglects to the prejudice ofgood order and discipline and service discrediting, eight specifications of communicatingclassified information, five specifications of stealing or knowingly converting Governmentproperty, and two specifications of knowingly exceeding authorized access to a Governmentcomputer, in violation of Articles 92, 1 04, and 134, UCMJ, 1 0 U.S.C, §§ 892, 904, 934 (2010).3. The Defense Motion to Compel the EnCase Forensic Images, the damage assessments fromWTF, IRTF, and DOS, and forensic and investigative reports from DOS, FBI, DIA, ONCIX, orthe CIA remain at issue.4.}he Defense submitted the following proffers of relevance and evidence in support of itsMotion to Compel:EnCase Forensic Images: The Defense requested an EnCase forensic image of each computerfrom the T-SCIF and the TOC of Headquarters and Headquarter Company, 2nd Brigade CombatTeam, 10th Mountain Division, Forward Operating Base Hammer, Iraq.a. Proffer of relevance: The Defense proffers that an EnCase Image would allow itsforensic expert to inspect the 1 4 seized government computers from the T-SCIF and TOC. Suchinspection would allow the Defense to discover whether it was common for Soldiers to add3technically unauthorized computer programs to their computers and that the practice of the unitwas to tacitly authorize that addition of unauthorized programs including but not limited to:miRC (a full featured Internet Relay Chat client for Windows that can be used to communicate,share, play or work with others on IRC networks); Wget (a web crawler program designed forrobustness over slow or unstable network connections); GEOTRANS (an application programwhich allows a user to easily convert geographic coordinates among a wide variety of coordinatesystems, map projections and datums); and Grid Extractor (a binary executable capable ofextracting MGRS grids from multiple free text documents and importing them into a MicrosoftExcel spreadsheet) to their computers. The Defense argues this information is relevant becausethe Government has charged PFC Manning with adding unauthorized software to his governmentcomputer in Specifications 2 and 3 of Charge III. The information is relevant to establish thedefense theory that the addition of software not on the approved list of authorized software wasauthorized by the accused's chain of command through the practice of condoning and implicitlyor explicitly approving the additions of such software.b. Evidence: The Defense has provided the Court with a swnmary of what the defenseasserts the following witnesses deployed with the accused testified to at the Article32investigation:CPT Steven Lim- Soldiers listened to music and watched movies on theircomputers and saved music, movies, and games (unauthorized software).CPT Casey Fulton- Soldiers saved music games, and computers to theircomputers. She added M-IRC Chat and Google Earth to her computer.Mr. Jason Milliman- Soldiers added unauthorized games and music to theircomputers and was aware Soldiers were adding unauthorized software to their computers,although he did not believe the practice was common.CPT Thomas Cherepko He saw unauthorized music, movies, games, andunauthorized programs improperly stored on the T-Drive. He advised his immediate supervisorand the Brigade Executive Officer concerning the presence of unauthorized media on the T­Drive. Nothing was done.Ms. Jihrleah Showman- She and everyone else in the unit viewed M-IRC Chat asmission essential and everyone put it on their computers.Damage Assessments and Closely Aligned Investigations: The Defense requested thefollowing damage assessments and records from closely aligned investigations:(1) Central Intelligence Agency: Any report completed by the WTF and any reportgenerated by the WTF under the direction of former Director Leon Panetta.(2) Department of Defense:The damage assessment completed by the InformationReview Task Force (IRTF) and any report generated by the IRTF under the guidance anddirection of former Secretary of State Robert Gates.Additionally, the Defense requests allforensic results and investigative reports by any of the cooperating agencies in this investigation(DOS, FBI, DIA, the Office of the national Counterintelligence Executive and the CIA).(3) Department of Justice: The DOJ has conducted an investigation into the disclosuresby WikiLeaks as referenced by Attorney General of the United States Eric H. Holder. The4Defense requested any grand jury testimony and any information relating to any 18 U.S.C. §2703(d) order or any search warrant by the government of Twitter, Facebook, Google or anyother social media site that was relevant to PFC Bradley Manning.(4) Department of State: The DOS formed a task force of over 120 individuals toreview each released diplomatic cable. The task force conducted a damage assessment of theleaked cables and concluded that the information leaked either represented low-level opinions orwas already commonly known due to previous public disclosures.Proffer of Relevance for all Damage Reports: The Defense argues that evidence ofdamage assessments (whether favorable or not) are material to the preparation of the defense forthe merits and sentencing lAW RCM 70l(a)(2) and that, if the damage assessments arefavorable, they are also relevant, helpful to the defense, and discoverable under RCM 70l (a)(6)and Brady v. Maryland, 373 U.S. 83 (1963). Even if the extent of actual damage caused by thealleged leaks was not relevant to the merits, it is relevant discovery for the defense to prepare itspresentencing case.Evidence: The Defense provided its 30 November 2011, request to the Article 32Investigation Officer (10) for the production of evidence to include the damage assessments.That request includes the following:a. 5 August 2010 creating the IRFT and !6 August 2010 letter from formerDefense Secretary Robert Gates to Senator Carl Levin discussing the !RTF.b. 8 November 2010 message from former CIA Director, Leon Panetta to CIAthat the Office of Security is directed to fully investigate the damagefrom WL. 22 December 2010 Washington Post article stating that the CIA established the WTFto assess the impact of exposure of thousands of leaked diplomatic cables.employees advising themc. 18 January 2011 Reuters article stating "Internal U.S. government reviewshave determined that a mass leak of diplomatic cables caused only limited damage to U.S.interests abroad, despite the Obama administration's public statements to the contrary". Thearticle listed the sources as two congressional aides familiar with briefings by State Departmentofficials and Congress. The article further went on to state "National security officials familiarwith the damage assessments being conducted by defense and intelligence agencies told Reutersthe reviews so far have shown "pockets" of short-term damage, some of it potentially harmful.Long term damage to U.S. intelligence and defense operations, however, is unlikely to beserious, they said." And "But current and former intelligence officials note that while WL hasreleased a handful of inconsequential CIA analytical reports, the website has made public few ifany real intelligence secrets, including reports from undercover agents or ultra-sensitive technicalintelligence reports, such as spy satellite pictures or communications intercepts."All forensic results and investigative reports by any of the cooperating agencies in thisinvestigation (DOS, FBI, DIA, the Office of the national Counterintelligence Executive andthe CIA).5Proffer of relevance: NoneEvidence: None5. The Defense filed discovery requests for the EnCase Images, damage assessments, andforensic results and investigative reports by any of the cooperating agencies in the investigation.On13 October 2011, the Defense made a specific request for Brady material, identifYing thedamage assessments. On 30 November 2011, the Government responded to the requests for thedamage assessments under Brady that the Government has no knowledge of any Brady materialin the possession of the CIA, Department of Defense, Department of Justice, or the Departmentof States, and it would furnish such records if it became aware of them and that the Governmentdid not have authority to disclose the damage assessments. At or nearGovernment advised the Article15 December 2011, the32 10 that the damage assessments were classified, that theGovernment does not have to discuss the substance of the damage reports, and that all but theIRTF are not under the control of military authorities. On 31 January 2012, the Governmentresponded to Defense Discovery Requests for damage assessments stating it would not providethe damage requests because the defense failed to provide an adequate basis for its request andthat the Defense was invited to renew its request with more specificity and an adequate basis forthe request.6. On 21 March 2015, the Court required the Government to respond to the following factualquestions regarding each of the requested damage assessments. The Government responsefollows the question.QUESTIONS:I . Is each in the possession, custody, or control of military authorities?Governmenta. Defense Intelligence Agency (DIA) and the Information Review Task Force (IRTF)­Yes, the classified document itself is in the possession of military authorities (DIA); however,the document contains material from other Agencies and Departments outside the control ofmilitary authorities. The military controls the document itself, but not all the information withinits four corners.b. Wiki!eaks Task Force (WTF)- No.c. Department of State (DOS) -DOS has not completed a damage assessment.d. Office of the National Counterintelligence Executive (ONCIX)- ONCIX has notproduced any interim or final damage assessments in this matter.2.If no, what agency has custody of each of the damage assessments?GovernmentWTF - The Central Intelligence Agency has possession, custody, and control.3. Does the Prosecution have access to the damage assessments?Governmenta. DIA and IRTF- The prosecution was given limited access for the purpose of reviewingfor any discoverable material. The prosecution only has control of the information within thedocument that is owned by the Department of Defense (military authority).6b. WTF - The prosecution was given very limited access for the purpose of reviewing forpreparation of the previous motions hearing. The prosecution will have future access to completea full review for Brady material, as outlined below.4. Has the Prosecution examined each of the damage assessments for Brady material?Governmenta. DIA and !RTF- Yes.b. WTF -No.4a. If yes, is there any favorable material?GovernmentDIA and IRTF- Yes; however, the United States has only found classified information that is"favorable to [theJ accused that is material... to punishment." Cone v. Bell, 129 S.Ct. 1769, 1772(2009); see also Brady v. Maryland, 373 U.S. 83, 87 (1973). The United States has not found anyfavorable material relevant to findings.4b. If no, why not?GovernmentWTF- The prosecution has only conducted a cursory review of the damage assessment in orderto understand what information exists within the Agency, and has not conducted a detailedreview for Brady material. This process is ongoing and the prosecution will produce all"evidence favorable to [theJaccused that is material to guilt or to punishment[}" if it exists, W1derthe procedures outlined in MRE 505, Cone v. Bell, 129 S.Ct. at 1 772; see also Brady v.Maryland, 373 U.S. at 87. Additionally, the United States is concurrently working with otherFederal Organizations which we have a good faith basis to believe may possess damageassessments or impact statements, and will make such discoverable information available to thedefense under MRE 505.END OF QUESTIONS7. No head of an executive or military department or government agency concerned has claimeda privilege to wilhhold classified information lAW MRE 505(c).The Law:1. Defense discovery in the military justice system is governed by the Constitutional standardsset forth by lhe Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963) and recentlyreaffirmed in Smith v. Cain, (slip opinion I 0 January 2012), Article 46, UCMJ (Opportunity toObtain Witnesses and Olher Evidence), RCM 701 (Discovery), and, also, by RCM 703(Production of Evidence) when the requested discovery is evidence not under the control ofmilitary authorities. For classified information, where the Government volW1tarily agrees todisclose classified information in whole or in limited part to the accused, the provisions ofMRE505(g) apply. Where the Government seeks to use MRE 505 to withhold classified infonnation,a privilege must be claimed lAW MRE 5 05(c). US.v.Schmidt, 6 0 M.J. I (C.A.A.F. 2004).2. Brady requires the Government to disclose evidence that is favorable to the defense andmaterial to guilt or pW1ishment.Favorable evidence is exculpatory and impeachment evidence.7Brady applies to classified information. The Government must either disclose evidence that isfavorable to the defense and material to guilt or punishment, seek limited disclosure IAW MRE505(g)(2), or invoke, the privilege for classified information under MRE 505(c) and follow theprocedures under MRE 505(f) and (i). The classified information privilege under MRE 505 doesnot negate the Government's duty to disclose information favorable to the defense and materialto punishment under Brady. The Government may provide the information to the Court andmove for limited disclosure lAW MRE 505(g)(2), If the privile\le is claimed, MRE 505(i)allows the Government to propose alternatives to full disclosure.3. Trial Counsel have a due diligence duty to review the files of others acting on theGovernment's behalf in the case for favorable evidence material to guilt or punishment. Thescope of Brady due diligence is to examine files beyond the Trial Counsel's files is limited to:(1) the files of law enforcement authorities that have participated in the investigation ofthe subject matter of the charged offense;(2) investigative files in a related case maintained by an entity closely aligned with theprosecution; and(3) other files, as designated in a defense discovery request, that involved a specified typeof information within a specified entity.For relevant files known to be under the control of another governmental entity, TrialCounsel must make that fact known to the Defense and engage in good faith efforts to obtain themateriaL U.S, v, Williams, 50 MJ, 436 (CAAF 1999}4. Article 46, UCMJ (Opportunity to obtain witnesses and other evidence) provides in relevantpart that trial connsel, defense counsel and the court-martial shall have equal opportunity toobtain witnesses and other evidence in accordance with such regulations as the President mayprescribe.5. The President promulgated RCM 701 to govern discovery and RCM 703 to govern evidenceproduction. The rules work together when production of evidence not in the control of militaryauthorities is relevant and necessary for discovery. U.S. v. Graner, 69 MJ 104 (C.A.A.F. 2010).The requirements for discovery and production of evidence are the same for classified andunclassified information under RCM 701 and 703 unless the Government moves for limiteddisclosure under MRE 505(g)(2) or claims the MRE 505 privilege for classified information, Ifthe Government voluntarily discloses classified information to the defense, the protective orderand limited disclosure provisions ofRCM 505(g) apply. If, after referral, the Governmentinvokes the classified information privilege, the procedures ofRCM 505(f) and (i) apply.6. Relevant discovery rules in RCM 70l(Discove:ry) are:1The parties have not presented the Court with any military cases directly on point. Cone v. Bell, 556 U.S. 449(2009) does not address classified infonnation disclosures required by the Government under Brady. Federal courtsusing the Classified Infonnation Procedures Act (CIPA) recognize that Brady requires disclosure of evidence by theprosecution when it is both favorable to the accused and material either to guilt or punislunent. See661 F.3d 271 (6lh Cir. 201 1).8U.S.v.Hanna,a. RCM 70l(a)(2) (Documents, tangible objects, reports) governs defense requesteddiscovery of evidence material to the preparation of the defense that is within the possession,custody, or control of military authorities, whose existence is know or by due diligence should beknown by the Trial Counsel. The rule provides for such discovery after service of charges uponthe accused.b. RCM 70l(a)(6) (Evidence favorable to the defense) codifies Brady and provides thatthe trial counsel shall, as soon as practicable, disclose to the defense the existence of evidenceknow to the trial counsel which reasonably tends to: (A) negate the guilt of the accused to anoffense charged; (B) reduce the degree of guilt of the accused of an offense charged; or (C)reduce the punishment.c. RCM 70I(f) provides that nothing in RCM 701 shall be construed to require thedisclosure of information protected from disclosure by the Military Rules of Evidence. RCM70l(f) applies to discovery of classified information when the Government moves for limiteddisclosure under MRE 505(g)(2) of classified information subject to discovery lAW RCM 701 orwhen the Government claims a privilege under MRE 505(c) for classified information.d. RCM 70l(g) authorizes the military judge to regulate discovery. A military judge isnot detailed to a court-martial until charges are referred for trial (Article 26(a) UCMJ).7. RCM 703 (Production of Witnesses and Evidence) states in relevant part:a. RCM 703(f)( l ) provides that each party is entitled to the production of evidence whichis relevant and necessary.b. RCM 703(1)(4) provides that evidence under the control of the government may beobtained by notifying the custodian of the record of the time, place, and date the evidence isrequired and requesting the custodian to send or deliver the evidence. The custodian of theevidence may request relief on the grounds that the order of production is unreasonable oroppressive. After referral, the military judge may direct that the subpoena or order of productionbe withdrawn or modified. Subject to MRE 505 (Classified Evidence), the military judge maydirect that the evidence be submitted for an in camera inspection in order to determine whetherrelief should be granted.8.Both the discovery rules under MRE 701 and the evidence production rules under MRE 703are grounded in relevance. In order to have the military judge compel release of evidence eitheras discovery under MRE 701 or as evidence production under MRE 703 , the Defense mustestablish that the evidence is relevant either to the merits or to sentencing, U.S. v. Graner, 69 MJ104 (C.A.A.F. 20!0) .9. Prior to referral, the Government may decline to disclose information requested by theDefense JAW RCM 701 where the Government contests relevance and materiality.Afterreferral, RCM 70I(g) empowers the military judge to deny or regulate discovery to includerequiring the Government to produce the requested discovery for in camera review. RCM701 (g) does not require the Government to produce all discovery requested by the Defense to the9Court for in camera review. As in this case, where the Government withholds discovery, theDefense may move for a Motion for Appropriate Relief to Compel Discovery lAW RCM906(b)(7) and, where classified information is withheld by the Government, IAW MRE 505(d).Upon such a motion and a sufficient showing by the Defense of relevance and materiality, theCourt may require the evidence to be produced for in camera review.10. If classified discovery is at issue and the government agrees to disclose classifiedinformation to the defense, the military judge shall enter an appropriate protective order if thegovernment requests one lAW MRE 505(g)(l )or allow the Government to move for limiteddisclosure under MRE 505(g)(2).11. If classified discovery detrimental to national security is at issue and the government doesnot wish to disclose the classified information in part or in whole to the defense, the governmentmust claim a privilege under MRE 505(c).There is no privilege Wlder MRE 505 for classifiedinformation W1less the privilege is claimed by the head of the executive or military department orgovernment agency concerned based on a finding that the information is properly classified andthat disclosure would be detrimental to the national security.12. MRE 505(e) (Pretrial Session) states in relevant part that after referral and prior toarraignment any party may move for a session under Article 39(a) to consider matters relating toclassified information in connection with the trial. Following such a motion or sua sponte themilitary judge promptly shall hold a session to establish the timing of requests for discovery, theprovision of notice under MRE 505(h), and the initiation of procedures under MRE 505(i). Inaddition the military judge may consider any matters that relate to classified information or thatmay promote a fair and expeditious trial.Analysis:l. No government entity in possession of any discovery at issue has claimed a privilege underMRE 505(c). Thus, Brady, RCM 70l(a)(2), 70l(a)(6), and 70l(g) govern discovery of bothclassified and unclassified information. MRE 505(g) also applies when the Governmentvoluntarily discloses classified information. RCM 703(f) requires that discovery of evidenceoutside the control of military authorities be relevant and necessary.2. The 14 hard drives for which the EnCase Images are requested are within the possession,custody, or control of military authorities. Some of the information in the IRFT damageassessment is under the possession, custody, or control of military authorities. The DOS andWTF damage assessments are in the possession, custody, and control of the Department of Stateand the Central Intelligence Agency, respectively.3. Because no privilege has been invoked under MRE 50S( c) and the Government has notmoved for limited disclosure !AW RCM 505(g)(2), RCM 70l(f) does not preclude disclosure ofclassified information that is material to the preparation of the defense under RCM 70l(a)(2) orclassified information that is favorable to the defense under RCM 701(a)(6).104. Under Brady and RCM 70l (a)(6), the Government has a due diligence duty to search forevidence that is favorable to the defense and material to guilt or punishment. This includes a duediligence to search any damage assessment pertaining to the alleged leaks in this case made bythe CIA, DoD, DOJ, and DOS. These agencies are entities closely aligned with the prosecutionin this case. The Government must disclose any favorable classified information from thedamage assessments that is material to punishment, move for limited disclosure under MRE5 0 5(g)(2), or claim the privilege lAW MRE 50S(c).5. The Government has examined the IRTF damage assessment and has found informationfavorable to the accused that is material to pm1ishment. The Court further finds that the IRTFdamage assessment is relevant and necessary for discovery under Brady and RCM 701(a)(6).6. The Court finds that the WTF and DOS damage assessments may contain evidence favorableto the accused that is material to punishment. The Court finds that these damage assessments arerelevant and necessary for the Government to examine for Brady material.7. The Court finds all 3 damage assessments relevant and necessary for the Court to conduct anin camera review to detennine whether they contain infonnation that is favorable to the accusedand material to punishment under Brady, whether they contain information relevant andfavorable to the accused under RCM 701(a)(6), and whether they contain infonnation material tothe preparation of the defense under RCM 70l(a)(2).8.The Government has advised the Court it is "unaware" of any forensic results or investigativefiles relevant to this case maintained by DOS, FBI, DIA, ONCIX, and CIA. These agencies areclosely aligned to the Government in this case. The Government has a due diligence duty todetermine whether such forensic results or investigative files that are germane to this case aremaintained by these agencies. The Government will advise the Court whether they havecontacted DOS, FBI, DIA, ONCIX, and CIA and that each of these agencies have stated to thegovernment that no such forensic results or investigative files exist.The Court finds that a complete search of the relevant 14 hard-drives of computers from theTactical Sensitive Compartmented Information Facility (T-SCIF) and the Tactical Operations'Center (TOC) of Headquarters and Headquarters Company (HHC), 2" Brigade Combat Team1h(BCT), 1 0 Mountain Division, Forward Operating Base (FOB) Hammer, Iraq is not material to9.the preparation of the defense for specifications 2 and 3 of Charge lli lAW RCM 70l (a)(2). Atleast some of the information on the hard drives is classified. The witnesses at the Article 32investigation testified that Soldiers would save unauthorized music, movies, games, and otherprograms such as Google Earth and M-IRC Chat. The Defense has evidence from the Article 32witnesses to further the defense theory. Although a complete search is not material, the Courtwill direct the Government to search each of the 14 hard drives Wget, M-IRC Chat, GoogleEarth, movies, games, music, and any other specifically requested program from the Defense.The Government will disclose the results of the search to the Defense under MRE 70l (g)(I) and505(g)(2). The Defense may renew its Motion to Compel Encase Forensic Images after receiptof the results of the Government search.RULING: The Defense Motion to Compel Discovery is Granted in Part.IIORDER:1. The Government will immediately begin the process of producing the damage assessmentsthat are outside the possession, custody, or control of military authorities IAW RCM703(f)(4)(A). If necessary, the Government shall prepare an order for the Court to sign for eachcustodian.2. The Government will immediately cause an inspection ofthe 14 hard drives as provided inparagraph (Analysis 9) above. On or before 30 March 2012, Defense will provide a list ofadditional tenns the Defense wants the Government to add to its search of the 1 4 hard drives.On or before 20 April2012, the Government will provide the results of the search.3. The Government shall contact DOS, FBI, DIA, ONCIX, and CIA to detennine whether theseagencies contain any forensic results or investigative files relevant to this case. The Governmentwill notify the court NLT 20 April2012 whether any such files exist. If they do exist, theGovernment will examine them for evidence that is favorable to the accused and material toeither guilt or punishment.4. By 20 Apri12012 the Government will notify the Court with a status of whether it anticipatesany government entity that is the custodian of classified evidence that is the subject of theDefense Motion to Compel will seek limited disclosure lAW MRE 505(g)(2) or claim a privilegeJAW MRE 505(c) for the classification under that agency's control.5. By 18 May 2012 the Government will disclose any unclassified information from the 3damage assessments that is favorable to the accused and material to guilt or punishment andprovide any additional unclassified information from the damage assessments to the Court for incamera review JAW RCM 70l(g)(2).6.By 18 May 2012 the Government will identify what classified information from the 3 damagereports it found that was favorable to the accused and material to guilt or punishment. By 18May 2012 the Government will disclose all classified information from the 3 damageassessments to the Court for in camera reviewlAW RCM 70l(g)(2) or, at the request of theGovernment, in camera review for limited disclosure under MRE 505(g)(2). By 18 May 2012, ifthe relevant Government agency claims a privilege under MRE 505(c) and the Governmentseeks an in camera proceeding under MRE 505(i), the Government will move for an in cameraproceeding lAW MRE 505(i)(2) and (3) and provide notice to the Defense under MRE 5054(A).So ORDERED: this 23rd day of March 2012.COL,JAChiefJudge, 1 stJudicial Circuit12


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