Title: Def Motion to Compel Discovery #2, 10 May 12

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATESv.MANNING, Bradley E., PFCU.S. Army, (b) (6)Headquarters and Headquarters Company, U.S.Army Garrison, Joint Base Myer-Henderson Hall,Fort Myer, VA 22211)))))))))DEFENSE MOTION TOCOMPEL DISCOVERY #210 May 2012RELIEF SOUGHT1. In accordance with the Rules for Courts Martial (R.C.M.) 701(a)(2), 701(a)(5), 701(a)(6) and905(b)(4), Manual for Courts-Martial (M.C.M.), United States, 2008; Article 46, Uniform Codeof Military Justice (UCMJ), 10 U.S.C. § 846; and the Fifth and Sixth Amendments to the UnitedStates Constitution, the Defense respectfully requests that the Court compel the requesteddiscovery. Specifically, the Defense requests that the Court order:a) Full investigative files by CID, DIA, DISA, and CENTCOM/SOUTHCOM related to PFCManning, WikiLeaks, and/or the damage occasioned by the alleged leaks be produced to theDefense under R.C.M. 701(a)(2). Further, that the HQDA file related to the 17 April 2012request be produced under R.C.M. 701(a)(2) and 701(a)(6).b) FBI, DSS, DOS, DOJ, Government Agency, ODNI, and ONCIX files in relation to PFCManning and/or Wikileaks be produced to the Defense, or alternatively, that they be producedfor in camera review to determine whether the evidence is discoverable under R.C.M. 701(a)(2)as being material to the preparation of the defense. If the Court concludes that the files of theabove agencies are not within the possession, custody, or control of military authorities, theDefense still requests that the Court order production of the entire file under the “relevant andnecessary” standard under R.C.M. 703(f);c) The Government state with specificity the steps it has taken to comply with itsrequirements under R.C.M. 701(a)(6);d) The Government produce Brady materials from certain identified agencies;e) The Government produce all evidence intended for use in the prosecution case-in-chief attrial obtained from DIA, DISA, CENTCOM/SOUTHCOM, FBI, DSS, DOS, DOJ, GovernmentAgency, ODNI, ONCIX and any aggravation evidence that it intends to introduce duringsentencing from the above named organizations.1BURDEN OF PERSUASION AND BURDEN OF PROOF2. As the moving party, the Defense has the burden of persuasion. R.C.M. 905(c)(2)(A). Theburden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1).EVIDENCE3. The Defense does not request any witnesses be produced for this motion.1 The Defenserequests that this Court consider the following evidence in support of this motion:a.b.c.d.Appellate Exhibits VIII, XXVI, XXXI, XXXVI, XLIX, XLVIII, and LXVIIIUnofficial Transcript, 23 February 2012Attachment A (Department of the Army Memorandum dated 17 April 2012)Attachment B (Email from Ashden Fein, 17 April 2012)FACTS4. The following facts are based upon the Government’s concessions in Appellate Exhibit XLIXand the Court’s Ruling in Appellate Exhibit XXXVI and Appellate Exhibit LXVIII. There arefour types of entities involved in this case that are relevant for the purpose of this motion: 1)Military organizations/entities; 2) Entities that participated in a joint investigation; 3) Other“closely aligned” agencies; and 4) Unrelated law enforcement agencies which were specificallyidentified by the Defense.a) Military Organizations/EntitiesArmy Criminal Investigation Command (CID). The primary law enforcementorganization within the Department of the Army focused on investigating the accused.Defense Intelligence Agency (DIA). An intelligence agency within the DOD whichoperated the Information Review Task Force (IRTF), a DOD directed organization thatwas responsible for conducting a comprehensive DOD review of classified documentsposted to the WikiLeaks website and any other associated materials.Defense Information Systems Agency (DISA)United States Central Command (CENTCOM) and United States SouthernCommand (SOUTHCOM)b) Joint Investigations1The Defense requests the testimony of Ambassador Patrick Kennedy for the purposes of this motion if theGovernment maintains that the damage assessment items listed for the DOS within paragraph 16, infra, do not exist.2FBI. The primary law enforcement organization within the DOJ, focused oninvestigating matters related to the accused.Diplomatic Security Service (DSS). The primary law enforcement organization withinthe Department of State (DOS), focused on investigating matters related to the DOS.c) Closely Aligned OrganizationsDepartment of State. The accused is charged with compromising the DOS’s documentsand the Government intends to use additional information from the Department during itscase-in-chief.DOJ. The Government collaborated with the federal prosecutors within the DOJ duringthe accused’s investigation.Government Agency. The accused is charged with compromising GovernmentAgency’s documents and the Government intends to use additional information from theAgency during its case-in-chief.Office of the Director of National Intelligence (ODNI). The Government intends touse information from this Department during its case-in-chief.ONCIX. The Court found in its ruling that ONCIX was a closely aligned agency. SeeAppellate Exhibit XXXVI at 11, paras. 4, 8.d) Unrelated Law Enforcement Files Specifically Identified by the DefenseInteragency Committee Review. The results of any investigation or review concerningthe alleged leaks in this case by Mr. Russell Travers, National Security Staff’s SeniorAdvisor for Information Access and Security Policy. Mr. Travers was tasked to lead acomprehensive effort to review the alleged leaks in this case. See Defense DiscoveryRequest Dated 8 December 2010 and 13 October 2011 within Appellate Exhibit VIII;President’s Intelligence Advisory Board. Any report or recommendation concerningthe alleged leaks in this case by Chairman Chuck Hagel or any other member of theIntelligence Advisory Board. See Defense Discovery Request Dated 13 October 2011within Appellate Exhibit VIII;House of Representatives Oversight Committee. The results of any inquiry andtestimony taken by House of Representative Oversight Committee led by RepresentativeDarrell Issa. The committee considered the alleged leaks in this case, the actions ofAttorney General Eric Holder, and the investigation of PFC Bradley Manning. SeeDefense Discovery Request Dated 10 January 2011 and 13 October 2011 withinAppellate Exhibit VIII .3ARGUMENTA.Information That the Government Does Not Dispute is Under Military Control5. The Government agrees that information in the possession, custody, and control of CID, DIA,DISA, and CENTCOM and SOUTHCOM falls within R.C.M. 701(a)(2). While the Governmenthas turned over some of this material, and is in the process of turning over the InformationReview Task Force Report, the Defense renews its previous discovery requests for the entirefiles from these organizations related to PFC Manning, WikiLeaks, and/or the damageoccasioned by the alleged leaks (to include any document, report, analysis, file, investigation,letter, working paper, damage assessment (or anything that can be reasonably construed asfalling within the aforementioned)).6. In its Ruling on 23 March 2012 (Appellate Exhibit XXXI), the Court ordered the Governmentto report on whether DIA (among others) had any “investigative files relevant to this case.” TheGovernment responded on 20 April 2012 that DIA did not have any investigative files relevant tothis case. This was surprising to the Defense given that the 12 pages of Brady material that theGovernment had provided a week earlier revealed that the DIA did have what the Defense wouldconsider “an investigation” into the alleged leaks.7. Apparently, the Court and the Government took a much more narrow view of “investigation”than the Defense intended. It seems that the Government thought that the Defense was seekingonly discovery of a formal investigation into the leaks (and perhaps files labeled as“Investigation”). The Defense did not intend in its discovery request for only formalinvestigations to be turned over to the Defense. Indeed, it has always requested broad discoveryof all documents related to PFC Manning, WikiLeaks, and/or the damage occasioned by thealleged leaks.28. For the sake of clarity, the Defense requests that, to the extent that they have not yet beenproduced, the entire CID, DIA, DISA, and CENTCOM and SOUTHCOM files related to PFCManning, WikiLeaks, and/or the damage occasioned by the alleged leaks be produced to theDefense. These files would include, but not be limited to, documents, reports, analyses, files,investigations, letters, working papers, and damage assessments (or anything that can bereasonably construed as falling within the aforementioned). These documents do not need to beformal investigative files in order to be in the purview of what the Defense requests. Thesedocuments are material to the preparation of the Defense as they will show what, if any, damagewas caused by the alleged leaks which will help the Defense prepare both for the merits andsentencing, if necessary.B.Joint Investigations and Closely Aligned Agencies2For the purpose of this motion and subsequent motions, “damage” occasioned by the alleged leaks should be readbroadly to include any mitigation efforts to correct such damage.49. The Government acknowledges that the FBI and DSS participated in a joint investigation ofthis case. It also acknowledges that the DOS, DOJ, Government Agency, and ODNI are closelyaligned with the Government in this case. The Court found that ONCIX was also closely alignedwith the Government in this case. Where the requested discovery is in the possession of anentity that conducted a joint investigation or an entity that is closely aligned with the prosecution,the discovery is deemed to be in the “possession, custody, or control of military authorities”within the meaning of R.C.M. 701(a)(2).10. R.C.M. 701(a)(2)(A) provides that, upon request of the Defense, the Government shallpermit the Defense to inspect:Any books, papers, documents, photographs, tangible objects, buildings, orplaces, or copies of portions thereof, which are within the possession, custody,or control of military authorities, and which are material to the preparation ofthe defense or are intended for use by the trial counsel as evidence in theprosecution case-in-chief at trial, or were obtained from or belong to theaccused.(emphasis supplied). The Government has previously maintained that because the FBI and theDOJ are organizations not subject to a military command, then the requested materials are notwithin the possession, custody, or control of military authorities. See Appellate Exhibit XLIX.11. As argued previously, the rule does not speak to whether other organizations such as theDOS, FBI, DOJ, ONCIX, ODNI, DSS, or Government Agency are under military control.Rather, it speaks to whether the books, papers, documents, etc. are within the “possession,custody or control” of military authorities. Whether a document is in the “possession, custody,or control” of military authorities is a legal question, not a factual one. See United States v.Santiago, 46 F.3d 885, 893 (9th Cir. 1995) (“[T]his issue involves a legal determination of themeaning of ‘in the possession of the government[.]’”). Although the issue of what items arelegally considered to be in the “possession, custody or control” of military authorities appears tobe a question of first impression in military courts, it has frequently arisen in federal courts. SeeFed. R. Crim. P. 16 (the federal court equivalent to R.C.M. 701(a)(2)); see also United States v.Stone, 40 M.J. 420, 422 n.1 (C.M.A. 1994) (when discussing R.C.M. 701(a)(2), noting that “asimilar right to discovery [is] provided in Fed. R. Crim. P. 16”); Drafter’s Analysis, Manual forCourts–Martial, Rule 701 Discovery (“(a) Disclosure by the trial counsel. This subsection isbased in part on Fed. R. Crim. P. 16(a), but it provides for additional matters to be provided tothe defense . . . . [R.C.M. 701(a)(2)] parallels [then-]Fed. R. Crim. P. 16(a)(1)(C) and (D) [nowFed. R. Crim. P. 16 (a)(1)(E)]”).12. The language of Fed. R. Crim. P. 16 and R.C.M. 701(a)(2) is nearly identical, except that thefederal rules use the term “government” instead of “military authorities.”3 The term3Rule 16(a)(1)(E) reads as follows:Upon a defendant’s request, the government must permit the defendant to inspect and to copy orphotograph books, papers, documents, data, photographs, tangible objects, buildings or places, orcopies or portions of any of these items, if the item is within the government’s possession, custody,5“government” under Rule 16 is synonymous with “prosecution” or “trial counsel.” See UnitedStates v. Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997) (“Binding precedent has construed theterm government in Rule 16(a)(1) to refer to the defendant’s adversary, the prosecution, giventhe repeated references to the attorney for the government in 16(a)(1)(A), (B) and (D) and16(a)(2), and language in [then-]16(a)(1)(C) referring to papers and documents intended for useby the government as evidence in chief at the trial.” (internal quotations omitted)). Although themilitary rule parallels Fed. R. Crim. P. 16(a)(1)(E), R.C.M. 701(a)(2) is intended to be broaderthan its federal counterpart, in that it requires that the Government turn over not only evidencewhich is within trial counsel’s control, but also in the control of military authorities generally.413. The key under both of these rules is determining when a given item is considered to bewithin a prosecutor’s “possession, custody, or control.” Since military courts have not addressedthis issue directly, federal court precedent is instructive in determining how the phrase“possession, custody, or control” under R.C.M. 701(a)(2) should be interpreted.14. The Defense incorporates its analysis of federal precedent to interpret “possession, custody,or control” from Appellate Exhibit XLVIII. It is clear that under federal law, a prosecutorcannot evade his discovery obligations under the federal equivalent to R.C.M. 701(a)(2) simplyby saying that the requested information is not in the possession, custody or control of thegovernment. Instead, the prosecutor is required to either turn over material which: i) he hasaccess to or knowledge of; or ii) is held by agencies that participated in a joint investigation ofthe accused or by agencies that are closely aligned with the prosecution.15. R.C.M. 701(a)(2) must be interpreted to include information that is technically in the handsof a joint investigative agency or any other closely aligned agency. Otherwise, the trial counselwould “be allowed to avoid disclosure of evidence by . . . leaving relevant evidence to repose inthe hands of another agency while utilizing his access to it in preparing his case for trial; suchevidence is plainly within his Rule 16 ‘control.’” United States v. Trevino, 556 F.2d 1265, 1272(5th Cir. 1977). If R.C.M. 701(a)(2) were not interpreted in line with federal case law, all anArmy prosecutor would need to do to evade his R.C.M. 701(a)(2) discovery obligations wouldbe to involve aligned or cooperating agencies in the case and then ensure that these agencies keptthe evidence that the prosecutors did not want disclosed in its entirety.5 United States v.Poindexter, 727 F. Supp. 1470, 1478 (D.D.C. 1989) (“[S]everal courts have noted that aprosecutor who has had access to documents in other agencies in the course of his investigationcannot avoid his discovery obligations by selectively leaving the materials with the agency onceor control and:(i) the item is material to preparing the defense;(ii) the government intends to use the item in its case-in-chief at trial; or(iii) the item was obtained from or belongs to the defendant.Fed. R. Crim. P. 16(a)(1)(E) (emphasis supplied).4To avoid confusion, it is helpful to read R.C.M. 701(a)(2) as referring to matters within the possession, custody, orcontrol of either trial counsel or military authorities. In this way, it parallels Rule 16, except that it allows for moregenerous disclosure, in that it includes items within military control as well.5The Defense recognizes, of course, that the Government would still have an obligation under Brady to producefavorable evidence.6he has reviewed them.”). This does not comport with the spirit of R.C.M. 701(a)(2), nor theletter of Rule 701(a)(2), properly construed. See also Article 46, UCMJ (“The trial counsel, thedefense counsel, and the court-martial shall have equal opportunity to obtain witnesses and otherevidence in accordance with such regulations as the President may prescribe.”).616. Under R.C.M. 701(a)(2), the Court should conclude that the below-requested discovery bythe Defense is within the “possession, custody, or control” of the Government and compel theGovernment to produce the requested discovery from those agencies that participated in a jointinvestigation or are closely aligned. If any such agency does not voluntarily provide therequested information, the Court should order production of the requested information underR.C.M. 703(f)(4)(B). The use of R.C.M. 703(f)(4)(B) recognizes that although not factuallywithin the “possession, custody, or control” of the Government, the items are legally within the“possession, custody, or control” of the Government. See Appellate Exhibit LXVIII (“[T]he factthat information controlled by another agency is discoverable under RCM 701 may make suchinformation relevant and necessary under RCM 703 for discovery.”).a) FBI. The Government has produced what it has characterized as “at least Brady” materialfrom the FBI file. The Government has submitted heavily redacted FBI files to the Defense. Asthe Court has already concluded, the requirements for discovery and production of the evidenceare the same for classified and unclassified information. The only exception is when theGovernment moves for limited disclosure under M.R.E. 505(g)(2) or claims the M.R.E. 505privilege for classified information. In the instant case, the Government has not moved for alimited disclosure nor has it asserted the privilege on behalf of the FBI. As such, theGovernment cannot submit to the Defense a redacted version of the FBI file when such a file iswithin its possession, custody or control.7 The Government’s belief that it can unilaterally redactinformation stems from its erroneous understanding of classified discovery. In theGovernment’s motion argument the following was stated in response to the Court’s question:6R.C.M. 701(a)(2) must be read consistently with federal case law to include documents that are maintained or heldby agencies that are jointly investigating the accused or agencies that are closely aligned with the prosecution. If itwere not so read, then defendants in federal cases would benefit from much broader discovery rights than theirmilitary counterparts, as those defendants would have access under Rule 16(a)(1)(E) to documents of agenciesinvolved in joint investigations or agencies that are closely aligned with the prosecution, while military accusedswould not. This, in turn, could not be reconciled with the repeated statements of military courts that militarydiscovery is much broader than that available in civilian courts. See United States v. Guthrie, 53 M.J. 103, 105(C.A.A.F. 2000) (“Discovery in military practice is open, broad, liberal, and generous.”); United States v. Simmons,38 M.J. 376, 380 (C.M.A. 1993) (“Congress intended more generous discovery to be available for military accused.”(emphasis omitted)); United States v. Hart, 29 M.J. 407, 410 (C.M.A. 1990) (“[D]iscovery available to the accusedin courts-martial is broader than the discovery rights granted to most civilian defendants.”); United States v.Killebrew, 9 M.J. 154, 159 (C.M.A. 1980) (“Military law has long been more liberal than its civilian counterpart indisclosing the government’s case to the accused and in granting discovery rights.”); United States v. Adens, 56 M.J.724, 731 (A. Ct. Crim. App. 2002) (“The military criminal justice system contains much broader rights of discoverythan is available under the Constitution or in most civilian jurisdictions.”).7Then-CPT Fein also stated in oral argument, “And we have been working with the Federal Bureau of Investigationto turn over any material that would be pertaining to the accused. But because that information is classified thatrequires the procedures under M.R.E. 505.” See Unofficial Transcript from Motions Argument 23 February 2012, at158. This quote recognizes that the Government has represented that it would turn over “any material” related to theaccused (not only Brady material). This is a very strong indicator that this material is in the possession, custody andcontrol of the Government.7MJ: I guess that is where I am going. How does M.R.E. 505 protect disclosure ofclassified information if the privilege is not invoked?TC: Yes, ma’am. Because it gives the government the option to voluntarily--like-as Mr. Coombs pointed out, to voluntarily disclose information. To discloseinformation with redactions [and] substitutions and if the defense doesn’t have anissue with, it doesn’t require a court to make a ruling. And it goes all the way tothe other extreme of the government invoking the privilege whole cloth and thenas it is contemplated in the ah--excuse me, in the ‘in-camera’ review underM.R.E. 505(i), that if its--if there is an unjust result by which withholding, thatthe Court could then sanction the prosecution and the government.[Unofficial Transcript from Motions Argument 23 February 2012, p. 157]The Court has ruled that in order for M.R.E. 505 to apply, the Government must invoke aprivilege. It cannot skip over the invocation of the privilege and go straight to unilateralredactions and substitutions. Accordingly, the Defense moves to compel disclosure of the fullFBI file as it pertains to the accused, WikiLeaks and/or the alleged leaks. If the Governmentwishes to make redactions, it must follow the proper procedure under M.R.E. 505 for doing so.b) Diplomatic Security Service (DSS). The Government has turned over limited files fromits joint investigation with DSS. The discovery provided deals only with the item charged inSpecification 14 of Charge II. The Government has not turned over any DSS files orinvestigation dealing with Specifications 12 or 13 of Charge II. The Defense moves for the fullDSS file as it pertains to the accused, WikiLeaks and/or the alleged leaks.c) Department of State. The Government has provided the Court what is has stated is theonly document that addresses the ongoing DOS damage assessment and review (what theGovernment refers to as “the damage assessment”). The Government has not provided, to theDefense’s knowledge, any documents related to the following:(1) The Chiefs of Mission review of the released cables at affected posts discussing theirinitial assessment, as well as their opinion regarding the overall effect that the WikiLeaksrelease could have on relations within their host country, if any;(2) The WikiLeaks Working Group composed of senior officials throughout theDepartment that was created to review potential risks to individuals from the release ofcables by WikiLeaks, if any;(3) The “Mitigation Team” created by the Department of State to address the policy,legal, security, counterintelligence, and information assurance issues presented by therelease of the documents to WikiLeaks, if any; AND(4) The Department’s reporting to Congress concerning any effect caused by theWikiLeaks’ disclosure and the steps undertaken to mitigate them, if any. TheDepartment convened two separate briefings for members of both the House ofRepresentatives and the Senate in December of 2010. The Department also appeared8twice before the House Permanent Select Committee on Intelligence on 7 and 9December 2010.The Defense moves for each of these specifically-requested items, as well as any otherdocuments related to the accused, WikiLeaks and/or the alleged leaks.8d) DOJ. The Government collaborated with the federal prosecutors within the DOJ duringthe accused’s investigation. The Government has not turned over any substantive materialrelated to this investigation from the DOJ. The Defense moves for any documents from the DOJrelated to the accused, WikiLeaks and/or the alleged leaks.e) Government Agency. The accused is charged with compromising Government Agency’sdocuments and the Government intends to use additional information from the Agency during itscase-in-chief. The Government has yet to produce any internal investigation (to include workingpapers and other internal documents, reports or files) or damage assessment from this agency.The Defense moves for any documents from Government Agency related to the accused,WikiLeaks and/or the alleged leaks.f) Office of the Director of National Intelligence (ODNI). The Government intends to useinformation from this Department during its case-in-chief. Yet, the Government has not turnedover any documents by ODNI. The letter to ODNI from the Assistant General Counsel of theFederal Trade Commission regarding the “documents that were compromised in the Departmentof State’s Net-Centric Diplomacy database” clearly shows that ODNI has conducted some sort ofinternal review of the cables. See Attachment to Appellate Exhibit XXXI. The Defense movesfor any documents from ODNI related to the accused, WikiLeaks and/or the alleged leaks.g) ONCIX. The Government has claimed this agency does not have any forensic reports,investigation, or damage assessment. However, the 12 pages of Brady material produced to theDefense clearly indicates that ONCIX has material responsive to the Defense’s request underR.C.M. 701(a)(2). See id. As such, the Defense moves for any documents from ONCIX relatedto the accused, WikiLeaks and/or the alleged leaks.17. The Court should conclude that the files from the above listed agencies are within thepossession, custody, or control of the Government under R.C.M. 701(a)(2) and order that all therequested documents be produced to the Defense.C. The Government’s Brady Search18. The Government has a due diligence duty to search for evidence that is favorable to thedefense and material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); R.C.M.701(a)(6). The trial counsel’s due diligence duty applies to: “(1) the files of law enforcementauthorities that have participated in the investigation of the subject matter of the charged offense;8Again, to avoid any confusion, the Defense is requesting any document, report, analysis, file, investigation, letter,working paper, damage assessment (or anything that can be reasonably construed as falling within theaforementioned)) related to the accused, WikiLeaks and/or the damage occasioned by the leaks. If the Governmentmaintains that such documents do not exist, the Defense requests Ambassador Patrick Kennedy be required to testifyregarding the above information.9(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 aspecified type of information within a specified entity.” United States v. Williams, 50 M.J. 436,441 (C.A.A.F. 1999) (internal quotations and citations omitted).19. “For relevant files known to be under the control of another governmental entity, TrialCounsel must make the fact known to the Defense and engage in good faith efforts to obtain thematerial.” Appellate Exhibit XXXVI at 8, para. 3. The Defense has requested specificinformation from within a specified entity in at least the following three instances:a) Interagency Committee Review. The results of any investigation or review concerningthe alleged leaks in this case by Mr. Russell Travers, National Security Staff’s Senior Advisorfor Information Access and Security Policy. Mr. Travers was tasked to lead a comprehensiveeffort to review the alleged leaks in this case;b) President’s Intelligence Advisory Board. Any report or recommendation concerning thealleged leaks in this case by Chairman Chuck Hagel or any other member of the IntelligenceAdvisory Board; andc) House of Representatives Oversight Committee. The results of any inquiry andtestimony taken by House of Representative Oversight Committee led by Representative DarrellIssa. The committee considered the alleged leaks in this case, the actions of Attorney GeneralEric Holder, and the investigation of PFC Bradley Manning.See Defense Discovery Request Dated 8 December 2010, 10 January 2011 and 13 October 2011within Appellate Exhibit VIII.20. The Government has failed to inform the Defense that the requested files were under thecontrol of another government entity and has also failed to document its good faith efforts toobtain the requested relevant material. The Government should be required to state the steps ithas taken to comply with its requirements under R.C.M. 701(a)(6). Specifically, the Governmentshould respond to the following four questions:a) Has the Government attempted to contact the identified agency to conduct a Brady reviewunder R.C.M. 701(a)(6)?b) When did the Government make its inquiry?c) How many documents did the Government review?d) What were the results of the Government’s inquiry? In particular, do any of thesediscovery requests contain Brady material?21. The Defense also requests that the Court order the Government to respond to the abovequestions not only for these three specific requests, but for all agencies that the Government has10contacted to conduct a review under R.C.M. 701(a)(6) to ensure that it has, in fact, compliedwith its Brady obligations.22. The Defense to date has received only 12 pages of Brady material (and apparently, someBrady material may be buried within the FBI file). The Defense believes, based on the 12 pagesof Brady, that other organizations have similar documents, files, assessments, working papers,reports, etc. that support the Defense’s argument that the alleged leaks did little to no damage.The Defense thus requests that the aforementioned questions be answered for each of the 63relevant agencies, and any other organization that the Government contacted for Bradyinformation. 9 At the very least, the Government should be prepared to state, on the record, thatits search of the 63 relevant agencies and other organizations it has contacted has not yielded anyBrady material (i.e. material that is favorable to the accused, in that it reasonably tends to reduceguilt, negate guilt, or reduce punishment). In making such a statement, the Government shouldprovide a statement of exactly what it asked for from these agencies.23. The Defense further requests that the Government provide Brady material from thespecifically-mentioned agencies and files in Part (A) and (B) of this motion and/or state that ithas reviewed the relevant files and that there is no Brady information within these files. Inparticular, the Defense requests that the Government provide Brady material from the followingfiles:a) Files that the Government does not dispute are within military custody, possession andcontrol under R.C.M. 701(a)(2) (i.e. CID, DIA, DISA, and CENTCOM and SOUTHCOM);b) Files that the Defense believes are within the custody, possession and control of militaryauthorities under R.C.M. 701(a)(2) because such agencies have conducted a joint investigation orare closely aligned with the prosecution. In particular, the Defense requests Brady material fromthe following agencies:(1) FBI. The Government has produced what it has characterized as “at least Brady”material from the FBI file. The Defense requests that the Government specify what itbelieves is Brady material and certify that this is the only Brady material contained inthe entire FBI file.(2) Diplomatic Security Service (DSS). The Defense requests that the Governmentproduce all Brady material from DSS, or certify that such Brady material does notexist.(3) Department of State. As indicated, the Government has not provided anydocuments related to the following:(i) The Chiefs of Mission review of the released cables at affected postsdiscussing their initial assessment, as well as their opinion regarding the9Question A for all other agencies that the Government has contacted to conduct a review under R.C.M. 701(a)(6)should be changed to require a response to “Which specific agencies has the Government contacted to conduct aBrady review under R.C.M. 701(a)(6)?11overall effect that the WikiLeaks release could have on relations within theirhost country, if any;(ii) The WikiLeaks Working Group composed of senior officials throughoutthe Department that was created to review potential risks to individuals fromthe release of cables by WikiLeaks, if any;(iii) The “Mitigation Team” created by the Department of State to address thepolicy, legal, security, counterintelligence, and information assurance issuespresented by the release of the documents to WikiLeaks, if any; AND(iv) The Department’s reporting to Congress concerning any effect caused bythe WikiLeaks’ disclosure and the steps undertaken to mitigate them, if any.The Department convened two separate briefings for members of both theHouse of Representatives and the Senate in December of 2010. TheDepartment also appeared twice before the House Permanent SelectCommittee on Intelligence on 7 and 9 December 2010.The Defense requests that the Government produce Brady material from each of thesespecifically-requested items as well as Brady material from the entire DOS filerelated to the accused, WikiLeaks and/or the alleged leaks, or certify that such Bradymaterial does not exist.(4) DOJ. The Defense requests that the Government produce all Brady materialfrom the DOJ, or certify that such Brady material does not exist.(5) Government Agency. The Defense requests that the Government produce allBrady material from Government Agency, or certify that such Brady material doesnot exist.(6) Office of the Director of National Intelligence (ODNI). The Defense hasalready received some Brady material related to ODNI. The Defense requests that theGovernment produce all Brady material from ODNI, or certify that such Bradymaterial does not exist.(7) ONCIX. The Defense has already received some Brady material related toONCIX. The Defense requests that the Government produce all Brady material fromONCIX, or certify that such Brady material does not exist.24. In summation, the Defense requests:a) Brady material from the Interagency Committee Review; the President’s IntelligenceAdvisory Board; the House of Representatives Oversight Committee;b) Brady material from files that the Government does not dispute are within militarycustody, possession and control under R.C.M. 701(a)(2) (i.e. CID, DIA, DISA, CENTCOM andSOUTHCOM) and Brady material responsive to the 17 April 2012 HQDA Memo (discussedbelow).12c) Brady material from files that the Defense believes are within the custody, possession andcontrol of military authorities under R.C.M. 701(a)(2) because such agencies have conducted ajoint investigation or are closely aligned with the prosecution (i.e. FBI, DSS, DOS, DOJ,Government Agency, ODNI, ONCIX);d) That the Government respond to the following four questions in respect to each of theaforementioned requests:(1) Has the Government attempted to contact the identified agency to conduct aBrady review under R.C.M. 701(a)(6)?(2) When did the Government make its inquiry?(3) How many documents did the Government review?(4) What were the results of the Government’s inquiry? In particular, do any of thesediscovery requests contain Brady material?e) That the Government respond to the following four questions in respect to each of each ofthe other 63 agencies and other organizations it has contacted in its search for Brady material:(1) Which agencies did the Government contact to conduct a Brady review underR.C.M. 701(a)(6)?(2) When did the Government make its inquiry?(3) How many documents did the Government review?(4) What were the results of the Government’s inquiry? In particular, do any of thesediscovery requests contain Brady material?25. The Defense has consistently maintained – and continues to maintain – that the Governmenthas not understood its Brady obligations. The Defense also believes that, to the extent that theGovernment is conducting a Brady search, it is not doing so in a diligent and timely manner.26. The Defense has just learned that on 29 July 2011, the Government sent out a memo toHeadquarters, Department of the Army requesting it to task Principal Officials to search for, andpreserve, any discoverable information.10 See Attachment A (Department of the ArmyMemorandum dated 17 April 2012). According to a 17 April 2012 Memorandum for PrincipalOfficials of Headquarters, Department of the Army, “[i]t was only recently determined that noaction had been taken by HQDA pursuant to the 29 July 11 memo from DOD OGC.” Id. Thismemo shows that no action had been taken by HQDA for nine months in response to theGovernment’s request for Brady and other potentially discoverable material. In other words, the10The Defense also requests that this Court compel production of the HQDA file related to the 17 April 2012request under R.C.M. 701(a)(2) and 701(a)(6).13Government has not yet completed a Brady search of its own files (i.e. files which are clearly inthe possession, custody, and control of military authorities) even though two years have elapsedsince PFC Manning was arrested. That the Government cannot “get its ducks in a row” withrespect to discovery which is clearly under its control does not inspire confidence that theGovernment has diligently conducted a Brady search of other agencies.27. In fact, there are huge questions and inconsistencies in the Government’s statementsregarding its search for Brady material. See also Appellate Exhibits XXVI, XXXI, and XLVIII.For instance, the Defense received 12-pages of Brady material several weeks ago, detailingresponses by various government agencies that the alleged leaks did little to no damage to thoseorganizations. The Defense was troubled that it was only now receiving such Brady material.Based on the nature of that Brady material, the Defense believes there is much more similarBrady material out there that the Government has not disclosed. The Defense asked theGovernment why it was only now receiving such material. MAJ Fein’s response was as follows:Since prior to referral, we have been coordinating with different federalorganizations which we have reason to believe prepared an assessment, as a resultof our continuing Williams and/or ethical obligations. Those organizations beganproviding us with these assessments as early as a few weeks ago and as recent as afew days ago. We adopted an efficient method of receiving, reviewing, and, ifnecessary, obtaining approval for the disclosure of the assessments, so that we canproduce the discoverable portions, if any, to the defense as soon as possible.These assessments are the most current.The prosecution will continue to produce as much information as authorized tomirror open-file discovery, but only pursuant to the authority we receive, based onbalancing disclosure with protecting national security.See Attachment B (Email from Ashden Fein, 17 April 2012).28. There are several troubling aspects to MAJ Fein’s statement.11 First, MAJ Fein states thatalthough the Government has been coordinating with several different organizations (presumablythe 63 organizations the Government has previously referenced), these organizations “beganproviding us with these assessments as early as a few weeks ago.” Apparently, the Governmentis saying that it took almost two years for organizations to provide the Government withdiscoverable information. It appears that, with the vast majority of the 63 organizations, theGovernment has yet to receive (much less disclose) Brady information. What is even moreproblematic is that the Government represented at an earlier 802 session that it had alreadysearched the various agencies and that these agencies did not possess any Brady material. Thismakes no sense: either the Government has already searched the agencies and there is no Bradymaterial, or the Government has not yet searched the agencies and there may be Brady material.11The Defense would point out that in this email, MAJ Fein himself referred to these interim documents four timesas “assessments.” In light of this, the Government cannot claim it did not understand what the Defense was askingfor when it asked for damage assessments or assessments of damage/harm to national security.1429. Second, the Government still seems to believe that it is the arbiter of what should or shouldnot be disclosed in the interests of national security. It states that the prosecution will continue toprovide as much information as authorized, “based on balancing disclosure with protectingnational security.” Given that the email concerned documents which referenced damage fromthe leaks (or lack thereof), the discoverable material the Government was talking about wasBrady material. The Defense reads the Government’s email as saying that it will conduct abalancing test to determine what Brady information is discoverable. As previously argued, it isnot the role of the Government to balance the rights of the accused with national security.30. Third, in response to the Defense’s question, “Additionally, some of these assessments areinterim assessments. Do you have any follow up assessments? at 6:42 pm on 16 April 2012, theGovernment replied at 9:47 on 17 April 2012 that “[t]hese assessments are the most current.”Given the incredibly short turn-around time on the Government’s response, it is hard to believethat the Government actually checked to see if these were the latest assessments. In fact, twothings would support the fact that they may not be the most recent assessment of damage. Thesedocuments were prepared in November 2010, in the immediate aftermath of the leaks; it is likelythat these agencies would also be asked to look into the longer-term impact of the leaks. Further,the Government has repeatedly stated that assessing damage is something that takes place over aperiod of years, not just at one snapshot of time. It is unlikely that an agency would simply relyon one snapshot in November 2010 to assess the impact of the leaks and then never return againto the issue.31. The aforementioned is intended to provide concrete examples that the Government is notdiligently fulfilling its Brady obligations. Regardless of whether the Government’s conductamounts to a discovery violation, this Court has actual knowledge that things are remiss in theGovernment’s Brady search. Accordingly, this Court cannot continue to accept on faith that theGovernment has understood its Brady obligations and that it is diligent in fulfilling them. SeeUnited States v. Cerna, 633 F. Supp. 2d 1053, 1056 (N.D. Cal. 2009) (noting that “[t]hegovernment is fond of saying that it knows its Brady obligations and will honor them.”); UnitedStates v. Naegele, 468 F. Supp. 2d 150, 152 n.2 (D.D.C. 2007) (“[N]ow that the Court realizesthat its view of Brady and the government’s have not been consistent for many years, it no longeraccepts conclusory assertions by the Department of Justice that it ‘understands’ its Bradyobligations and ‘will comply’ or ‘has complied’ with them.”); United States v. Lim, No. 99 CR689, 2000 WL 782964, at *3 (N.D. Ill. June 15, 2000) (“The government's response – which isand has been its stock response to such motions as long as the Court can recall – is that thegovernment ‘recognizes its obligation’ to produce material pursuant to Brady and Giglio, that‘the government will abide by the law,’ and that the motion should therefore be denied as ‘moot’. . . . [T]his Court does not believe that this is an appropriate way to deal with a matter asimportant as the government’s obligation to produce material that is favorable to an accused.”);United States v. Hsia, 24 F. Supp. 2d 14, 29 (D.D.C. 1998) (“While the government hasrepresented that it ‘understands its Brady obligations and it fully intends to abide by them,’ theCourt shares defense counsel’s skepticism.” (citation omitted)). The latest memo from HQDAreveals the Government’s utter lack of diligence in undertaking its Brady search. Why would theGovernment wait until over a year after preferral of charges to begin its search for Bradymaterial? How could the Government not have noticed that for nine months, it had not receivedany material from any principal officials in the Army? If the Government cannot even search its15own files properly, how can we believe them when they say they have diligently searched thefiles of other organizations? In order to ensure that the Government has done what it actuallyclaims it is doing, it must provide an accounting for its Brady search. If the Government hasnothing to hide, then it should not object to providing this Court and the Defense with acomprehensive accounting of its Brady search.D. The Government’s Evidence in Merits and Sentencing32. The Government has a requirement, after service of charges, upon request of the Defense, topermit the Defense to inspect material intended for use by the trial counsel as evidence in theprosecution case-in-chief at trial. R.C.M. 701(a)(2). Additionally, upon request of the Defense,the trial counsel shall permit the Defense to inspect written material that will be presented at thepresentencing proceedings. R.C.M. 701(a)(5)(A). The Government has indicated that it intendsto use information from at least the DOS, Government Agency, and ODNI. The Defense haspreviously requested timely access to this information, and the Court indicated that it would notallow the Government to wait until the eve of trial to provide access to the requestedinformation.33. The trial is currently scheduled to begin on 21 September 2012. The Defense believes thattimely access to this information should begin now. The Government has had over two years tocull through the charged information and review documents from the various named agencies.During this time, the Government has been permitted to select which information it believesshould be used for merits and which for sentencing. The Defense has not had equal access tothis same information, or the ability to factor this information into the defense’s theory on themerits or any possible sentencing case. The requested information is material to the preparationof the defense, and should be turned over immediately. To allow the Government to restrict theDefense’s access to this information is to provide the Government with an unfair tacticaladvantage that will likely prejudice PFC Manning’s right to a fair trial.CONCLUSION34. In accordance with the above, the Defense requests that the Court order that:a) Full investigative files by CID, DIA, DISA, and CENTCOM/SOUTHCOM related to PFCManning, WikiLeaks, and/or the damage occasioned by the alleged leaks be produced to theDefense under R.C.M. 701(a)(2). Further, that the HQDA file related to the 17 April 2012request be produced under R.C.M. 701(a)(2) and 701(a)(6).b) FBI, DSS, DOS, DOJ, Government Agency, ODNI, and ONCIX files in relation to PFCManning and/or Wikileaks be produced to the Defense, or alternatively, that they be producedfor in camera review to determine whether the evidence is discoverable under R.C.M. 701(a)(2)as being material to the preparation of the defense. If the Court concludes that the files of theabove agencies are not within the possession, custody or control of military authorities, theDefense still requests that the Court order production of the entire file under the “relevant andnecessary” standard under R.C.M. 703;16c) The Government state with specificity the steps it has taken to comply with itsrequirements under R.C.M. 701(a)(6);d) The Government produce Brady materials from certain identified agencies;e) The Government produce all evidence intended for use in the prosecution case-in-chief attrial obtained from DIA, DISA, CENTCOM/SOUTHCOM, FBI, DSS, DOS, DOJ, GovernmentAgency, ODNI, ONCIX and any aggravation evidence that it intends to introduce duringsentencing from the above named organizations.Respectfully submitted,DAVID EDWARD COOMBSCivilian Defense Counsel17

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