Title: Ruling: Gov Motion to Preclude Over-Classification Evidence and Def Motion for Judicial Notice of HR 553, 31 Jan 13

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATES RULING: GOVERNMENTMOTION TO PRECLUDEOVER-CLASSIFICATIONEVIDENCE ON MERITSAND SENTENCING AND DEFENSEMANNING, Bradley E., PFC MOTION FOR JUDICIAL NOTICEU.S. Army, OF HR. 553 AND CONGRESSIONALU.S. Army Garrison HEARINGS DISCUSSINGJoint Base Myer-Henderson Hall CLASSIFICATIONFort Myer, Virginia 22211 DATED: 31 January 2013GOVERNMENT MOTION TO PRECLUDE EVIDENCE OF OVER-CLASSIFICATION:On 14 December 2012, the Government moved to preclude the Defense from raising general over?classi?cation during both the merits and sentencing phases of the trial. On 28 December 2012, theDefense ?led a response opposing. After considering the pleadings, evidence presented, and argument ofcounsel, the Court ?nds and concludes as follows:Findings of Fact:1. The accused is charged with one speci?cation of aiding the enemy in violation of Article 104, UniformCode of Military Justice (UC MJ), one speci?cation of disorders and neglects to the prejudice of goodorder and discipline and service discrediting in violation of Article I34, UCMJ, eight speci?cations ofviolations of 18 U.S.C. 793(e) and Article 134, UCMJ, ?ve speci?cations of violations of 18 U.S.C. 641 and Article 134 UCMJ, two speci?cations of violations of 18 U.S.C. l030(a)(l) and Article I34,UCMJ, and ?ve speci?cations of violating a lawful general regulation, in violation of Article 92, UCMJ .The time period of the charged offenses is from on or about I November 2009 on or about 27 May2010.2. Defense proffers that it will offer the following evidence for merits and sentencing:a. Mr. Cassius Hall will testify that much of the charged information could not cause damage tothe United States and was not closely held.b. Mr. Charles Ganiel will testify that the vast majority of the information within the chargeddiplomatic cables was already in the public realm prior to the accused?s alleged communications of thatinformation.c. Ambassador Peter Galbraith will testify that many Department of State cables are, in hisexperience, over-classi?ed and that a secret classi?cation does not mean the information is genuinelysecret.d. House Resolution (H.R.) 553 (Reducing Over-Classi?cation Act) (7 October 2010),Transcripts of House Committee Meetings on the Espionage Act (16 December 20! 0) and 2007 House1APPELLATE EXHIBIT PAGE REFERENCED:PAGE or PAGES 4 Committee Meetings on Over-Classi?cation (22 March, 26 April, and 28 June 2007). In a separatemotion, the Defense requests that the Court takejudicial notice of this information.3. H.R. SS3 ?Reducing Over-classification Act? was enacted into law on 7 October 2010 as Public Law(PL) 1 l-258. This was after the dates of the charged offenses and before the Original Classi?cationAuthority (OCA) classi?cation reviews. The Court will henceforth refer to H.R. 553 as PL 1-258.4. Merits - Defense. Defense argues that evidence of general over-classi?cation is relevant to the meritsfor the offenses charged that violate I8 U.S.C- 793(e) and l030(a)(l) for the following reasons:a. those offenses require the Government to prove that the accused had reason to believeinformation communicated could be used to the injury of the United States or to the advantage of anyforeign nation. This necessarily requires the fact ?nder to consider the nature of the information.Evidence of over-classi?cation is relevant to the nature of the information.b. for 8 U.S.C. 793(e) offenses only - general over-classi?cation is relevant to whether theinformation communicated ?relates to the national defense?. This element requires that the informationbe ?closely held" and that disclosure of the information would be potentially damaging to the UnitedStates or might be useful to an enemy of the United States.c. Over-classi?cation allows the defense to paint a full picture of the context in which theclassi?cation decisions were made. The signi?cance of over-classification relates to what weight theCourt should accord to the fact of classification itself to determine whether the accused had reason tobelieve the documents could cause damage to the United States and whether the documents at issue relateto the national defense.d. Over-classi?cation evidence is relevant evidence of bias of the Original Classi?cationAuthority (OCA), allowing both cross-examination and extrinsic evidence under MRE 608(c).5. Merits - Government: The Government argues the following to preclude evidence of general over-classi?cation on the merits as not relevant to any charged offense or cognizable defense:a Evidence of general over-classi?cation is not relevant to whether the documents issue wereproperly classi?ed by the relevant OCA.b. The accused authority to determine whether information couldinjure ?re United States with respect to classi?cation.c. Evidence of general over-classi?cation is not relevant as to the nature of the informationcommunicated or to determine whether the charged information could be used to the injury of the UnitedStates or to the advantage of a foreign nation.d. Evidence of over-classi?cation after the dates of the charged offenses is not relevant to theaccused's intent at the time of the offenses.6. Sentencing: In its Motion for Judicial Notice of HR. 553 and Congressional Hearings DiscussingClassi?cation, the Defense avers that evidence of general over-classification is relevant to sentencing inthat evidence that the classi?cation system was broken and its condition had negative consequences forthe nation would tend to shift some of the culpability from the accused to the system itself, thus tending tolower his punishment. The Government argues evidence of general over?classification presents neither2 matters in extenuation nor mitigation because the information was not in existence nor known to theaccused at the time of the charged offenses and, even if relevant, should be excluded under MRE 403 asan undue waste of time.7. The Government intends to prove on the merits that a relevant OCA conducted an originalclassi?cation review of the information allegedly communicated in the charged offenses in accordancewith Executive Order Number (E0) 13,526 (29 December 2009).The Law:1. Relevant evidence is evidence having any tendency to make the existence of any fact that is ofconsequence to the determination of the action more or less probable than it would be without theevidence. MRE 401. Relevant evidence is necessary when it is not cumulative and when it wouldcontribute to a party?s presentation of the case in some positive way in a matter at issue. The militaryjudge has the initial responsibility to detennine whether evidence is relevant under MRE 401. US. White, 69 M.J. 236 (C.A.A.F. 2010).2. All relevant evidence is admissible, except as otherwise provided by the Constitution of the UnitedStates as applied to members of the armed forces, the code, these rules, this Manual, or any Act ofCongress applicable to members of the armed forces. Evidence which is not relevant is not admissible.MRE 402.3. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger ofunfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay,waste of time, or needless presentation of cumulative evidence. MRE 403.4. MRE 608(c) provides that bias, prejudice, or any motive to misrepresent may be shown to impeach awitness either by examination of the witness or by evidence otherwise adduced. The rule allows bothcross-examination of the witness and extrinsic evidence.5. RCM 1001(c) governs matters to be presented by the Defense during sentencing. In relevant part, therule allows the Defense to present matters in rebuttal to any material presented by the Government andmatters in extenuation and mitigation. Matters in extenuation serve to explain the circumstancessurrounding the commission of an offense, including those reasons for committing the offense which donot constitute legal justi?cation or excuse. Matters in mitigation of an offense are reasons to lessen thepunishment of an offense or to furnish grounds for recommendations of clemency.6. Sentencing Relaxed Rules. RCM l00l(c)(3) authorizes the military judge, with respect to mattersin extenuation or mitigation or both, to relax the rules of evidence. This may include admitting letters,affidavits, certi?cates of military and civil of?cers, and other writings of similar authenticity andreliability. R.C.M. l00l(c)(4) provides that when the rules of evidence have been relaxed for theDefense, they may be relaxed during rebuttal and surrebuttal to the same degree.7. E0 13,526 governs Classi?ed National Security Information. Only OCAS are authorized to detenninewhat infonnation is originally classi?ed in accordance with E0 13,526 and the level of classi?cation.Under E0 13,526, when an OCA classi?es infonnation at the Secret level, the OCA determines thatunauthorized disclosure of the information could reasonably be expected to result in damage to thenational security and identi?es or describes the expected damage.8. E0 13,526 Part 2 governs Derivative Classi?cation. Persons who reproduce, extract, or summarizeclassi?ed information or who apply classi?cation markings derived from source material or as directed bya classi?cation guide need not be OCAs.9. Section 1.8 of E0 13,526 establishes procedures for authorized holders of information to challengeclassi?cations they believe, in good faith, are improperly classi?ed. These procedures do not include self-help communication of classi?ed information such persons believe is improperly classi?ed to those notauthorized to receive the classi?ed information.10. For l8 U.S.C. 793(e), classi?cation may demonstrate that an accused has reason to believe thatinformation relates to the national defense and could cause harm to the United States. Not all informationthat is contained on a classi?ed or closed computer system pertains to national defense. Not allinformation marked as classi?ed, in whole or in part, may, in fact, meet the criteria for classi?cation.Infonnation not marked classi?ed may meet the standards for classi?cation and protection, particularlywith respect to information received tluough oral means or information the recipient should have reasonto believe warrants protection. US. v. Diaz, 69 M1. 127 (2010).Conclusions of Law Evidence of Over-Classi?cation on the Merits:1. Evidence of general over-classi?cation is not relevant to the nature of the information allegedlycommunicated in the speci?cations alleging violations of 13 US. C. 793(6) and l030(a)(l There isno nexus between general over-classi?cation and the information allegedly communicated in this case.2. Evidence of general over-classi?cation is not relevant to whether the information charged in thespeci?cations alleging violations of 18 U.S. C. 793(e) relates to the national defense and was closelyheld. Infonnation does not have to be classi?ed to relate to the national defense. However, it does haveto be closely held by the Government. Original classi?cation of information by an OCA in accordancewith E0 13,526 is evidence that the communicated infonnation was closely held by the U.S. Government.It is not conclusive and can be rebutted by evidence that the information was made public by Congress oran Executive Branch agency and that the informtion may have been found in sources lawfully availableto the general public at the time of charged communication. However, evidence of general over-classi?cation goes to whether information should be closely held by the United States, not whether it wasclosely held at the time of the charged communication. Whether information should be closely held is aproper determination for the Executive and Legislative branches and is not at issue before this Court.3. PL 1 1 1-253 did not make any changes to the classi?cation criteria in E0 13,526. Facts at issue arewhether each OCA properly classi?ed the relevant information in accordance with (IAW) E0 13,526 andwhether any derivative classi?cations of that information were conducted E0 13,526 and therelevant derivative classi?cation guides.4. Whether evidence that PL 11 1-258 was enacted in response to Congressional concerns about over-classi?cation and the substance of that law is relevant to bias of an OCA under MRE 608(c) is not ripe forconsideration. Similarly, whether Mr. Leona.rd?s statement and/or oral testimony given at the 2007 HouseCommittee on Homeland Security Hearings is relevant on the merits to cross-examine OCA witnesses isnot ripe for consideration. The Court defers ruling on these issues until such time as they are ripe. As setforth below, Mr. Leonard?s statement and oral testimony, if relevant, are admissible under MRE 803(8) asa hearsay exception.5. The testimony of Mr. Cassius Hall and Mr. Charles Ganiel, as proffered by the Defense, does notaddress general over-classi?cation. The Court will make detenninations regarding the scope of Mr.Galbraith?s testimony if and when he testi?es.6. Evidence of general over-classi?cation bearing no particularized nexus to the classi?ed infonnation atissue is not otherwise relevant as substantive evidence on the merits. Even if relevant, the probative valueof evidence of such general over-classi?cation is substantially outweighed by the danger of con?ising theissues at trial MRE 403.Conclusions of Law Evidence of Over-Classi?cation on Sentencing:RCM lO0l(c)(l)(A) allows the Defense to present matters in extenuation serving to explain thecircumstances surrounding the commission of the offense, including those reasons for committing theoffense which do not constitute legal justi?cation or excuse. At this point, there is no evidence before theCourt that the accused was aware of any general over-classi?cation problem or that such awarenessin?uenced his intent or motive. The Court defers ruling until the matter is ripe for adjudication duringsentencing.DEFENSE MOTION FOR JUDICIAL NOTICE OF H.R. 553 AND CONGRESSIONALHEARINGS DISCUSSING CLASSIFICATION:1. On 16 November 2012, the Defense ?led a motion, pursuant to Military Rules of Evidence (MRE)201, 201A, and 803(8) for the Court to take judicial notice of H.R. 55 3, the ?Reducing Over-Classi?cation Act,? and transcripts of the House Committee meetings on the Espionage Act (16December 2010) and Over?Classi?ca?tion (22 March, 26 April, and 26 June 2007). Defense argues thisinformation is relevant on the merits to rebut evidence that the accused knew or should have known that adocument could cause injury to the United States or bene?t a foreign nation based solely on thedocument?s classi?cation. The Defense ?nrther posits that this information is relevant to sentencing inthat evidence that the classi?cation system was broken and its condition had negative consequences forthe nation would tend to shift some of the culpability from the accused to the system itself, thus tending tolower his punishment.2. On 30 November 2012, the Government ?led a response opposing the Defense motion. TheGovernment argues that the Defense motion should be denied because the law and the statements andtestimony in the Congressional record are irrelevant. The Government requests the Court to ?nd theHouse Committee meeting testimony and statements to be inadmissible hearsay not qualifying foradmission pursuant to MRE 803(8). The Government further avers that, as a general proposition, it isappropriate for a Court to take judicial notice of the law insofar as it exists, is relevant, and that aCongressional record presents an accurate account of testimony. Finally, the Government avers thatjudicial notice is not appropriate for the truth of the matter asserted.3. After considering the ?lings and evidence presented by the parties and argument of counsel, and theruling of the Court with respect to the Government Motion to Preclude Over-Classi?cation, the Court?nds and concludes as follows:Findings of Fact:PL 1 ll-258, the ?Reducing Over-Classi?cation Act?1. On 7 October 2010, President Obama signed H.R. 553, the ?Reducing Over-Classi?cation Act? intolaw. On that date, the Act became Public Law 1 1 1-25 8 (PL l-258).52. The ?Reducing Over-Classi?cation Act? requires the Secretary of Homeland Security to develop aprogram to prevent the over-classi?cation of homeland security information. While the main thrust of thelegislation is directed at the Department of Homeland Security, the legislation also contains several otherprovisions relating to ?accurate classification? of information that each ?Executive agency" that handlesclassi?ed information is required to follow. See. P.L. 1 11-258, section 7 (?The head of eachExecutive agency, in accordance with Executive Order 13526, shall require annual training for eachemployee who has original classi?cation authority?)3. Section 2 of P.L. ll 1-258 also contains several Congressional ?ndings. Among these ?ndings are:The National Commission on Terrorist Attacks Upon the United States (commonly known asthe ?*9/11 Commission?) concluded that security requirements nurture over-classification andexcessive cornpartmentalization of infomiation among agencies-(2) The 9/ [1 Commission and others have observed that the over-classification of informationinterferes with accurate, actionable, and timely information sharing, increases the cost ofinformation security; and needlessly limits stakeholder and public access to information.(3) Over-classi?cation of information causes considerable confusion regarding what informationmay be shared with whom, and negatively affects the dissemination of information within theFederal Government and with State, local, and tribal entities, and with the private sector.[6 December 2010 House Judiciary Committee Testimony of Mr. Thomas BlantonI. On 16 December 2010, the US. House of Representatives Committee on the Judiciary held a hearingentitled ?Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks.? The hearingfeatured seven witnesses, one of whom was Mr. Thomas Blanton, Director, National Security Archive,George Washington University.2. In his testimony, Mr. Blanton stated, among other things, that the ?government always overacts toleaks,? that the ?govemmenfs national security classi?cation system is broken,? and ?we are well into athat one senior government official called ?Wikimania? where are common andthere is far more heat than light heat that will eventually produce more leaks, more crackdowns, lessaccountable government, and diminished security.? Mr. Blanton?s testimony and his statement repeatstatements made by Governor Thomas Kean, Secretary of Defense Robert Gates, the editors of Le Mondeand The Guardian. Secretary of Defense Donald Rumsfeld?s deputy for counterintelligence and security,and Harvard Law Professor Jack Goldsmith.3. Mr. Blanton?s oral and written testimony was published in the hearing transcript verbatim, withoutmodi?cation by the Chairman of the committee.House Homeland Security Subcommittee Hearings on Over-Classification1. On 22 March, 26 April, and 28 June, 2007, the U.S. House of Representatives Homeland SecuritySubcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment held a three-parthearing on ?Over-Classi?cation and 2. The Hearing included statements from the following subcommittee members: The Honorable JaneHarman, The Honorable David G. Reichert, The Honorable Bennie G. Thompson, The Honorable CharlesW. Dent, The Honorable Christopher P. Carney, and the Honorable James R. Langevin.3. As part of these hearings, a number of agency and private witnesses with knowledge of classi?cationactivities were invited to provide oral and written testimony. Speci?cally, the hearings featured testimonyfrom:a. Mr. Scott Founder, Information Trust (22 March 2007)b. Ms- Meredith Fuchs, General Counsel, The National Security Archive, George WashingtonUniversity (22 March 2007)c. Mr. J. William Leonard, Director information Security Oversight Office, National Archives andRecord Administration (NARA) (22 March 2007)d. Mr. Michael P. Downing, Assistant Commanding Officer, Counter-Terrorism/Criminal IntelligenceBureau, Los Angeles Police Department (22 March 2007)e. Chief Cathy Lanier, Metropolitan Police Department, Washington, DC (22 March 2007)f. Ambassador Thomas E. McNamara, Program Manager, Information Sharing Environment, Office ofthe Director of National Intelligence (26 April 2007)g. Dr. Carter Morris, Director, Information Sharing and Knowledge Management, Office ofIntelligence and Analysis, US. Department of Homeland Security (26 April 2007)h. Mr. Wayne M. Murphy, Assistant Director, Directorate of Intelligence, Federal Bureau ofInvestigation (26 April 2007)i- Mr. Mark Zadra, Assistant Commissioner, Florida Department of Law Enforcement (26 April 2007)j. Mr. Mark Agrast, Senior Fellow, Center for American Progress (28 June 2007)it. Mr. Scott Founder, Information Trust (28 June 2007)I. Mr. J. William Leonard Director [nforrnation Security Oversight Of?ce, National Archives andRecords Administration (28 June 2007)m. Ms. Suzanne E. Spaulding, Principal, Bingham Consulting Group, LLC (28 June 2007)4.. The consolidated hearing record from all three dates contains the verbatim oral and written testimonyof all subcommittee members and witnesses, without modi?cation by the Chairman of the committee.The Law: The Court incorporates the law as stated earlier in the Government Motion to PrecludeEvidence of 0ver?Classi?cation and adds the following:Judicial Notice: Adjudicatorv FactsI. MRE 201 govemsjudicial notice of adjudicative facts. Thejudicially noticed fact must be one notsubject to reasonable dispute in that it is either (I) generally known universally, locally, or in the areapertinent to the event or (2) capable of accurate and ready determination by resort to sources whoseaccuracy cannot be reasonably questioned. US. v. Needham, 23 M.J. 383 (C.M.A. US. v. Brown,33 706 (A.C.M.R. I991).2. MRE 20l(c) requires the militaryjudge to takejudicial notice of adjudicative facts if requested by aparty and supplied with the necessary information.3. When a military judge takes judicial notice of adjudicative facts, the fact ?nder is instructed that theymay, but are not required to, accept as conclusive any matter judicially noticed.4. Judicial notice of adj udicative facts puts ?a stamp of udicial authority? on the evidence and effectivelydestroys the other party's right to reasonably dispute the evidence. US. v. Richardson, 33 MJ. 127(C.M.A. 1991). As such, judicial notice is not appropriate for inferences a party hopes the fact finder willdraw from the fact(s) judicially noticed. Legal arguments and conclusions are not adjudicative factssubject tojudicial notice. US. 12. Anderson, 22 MJ. 885 (A.F.C.M.R. 1985) (appropriate to takejudicialnotice of the existence of a treatment program at a con?nement facility but not appropriate to take judicialnotice of the quality of the program).5. MRE 20l governs judicial notice of adjudicative facts, not legislative facts. An adjudicative fact is afact that normally goes to ajury in ajury case and relates to the parties, their activities, and theirbusinesses. Legislative facts do not concern the immediate parties and are relied upon by courts whenthey develop a particular law or policy. US. v. Gould, 536 F.2d 216 (8th Cir. l976).Judicial Notice: Domestic LawMRE 20lA(a) provides that a ?military judge may takejudicial notice of domestic law.? This provisionfurther provides, however, that ?[i]nsofar as a domestic law is a fact that is of consequence to thedetermination of the action,? then the procedural requirements of MRE 201 (except for section 20 apply.Hearsay: Public Records and ReportsMRE 803(8) provides that ?records, reports, statements, or data compilations, in any form, of publicoffice or agencies? are not excluded under the hearsay rule if the records or reports set forth:(A) the activities of the office or the agency, or (B) matters observed pursuant to duty imposed bylaw as to which there was a duty to report, excluding, however, matters observed by policeofficers and other personnel working in a law enforcement capacity, or (C) against thegovernment, factual ?ndings resulting ?om an investigation made pursuant to authority grantedby law, unless the sources of information or other circumstances indicate lack of trustworthiness.Conclusions of Law Admissibility/Relevance:PL 1 1 1-2581. Admissibility: PL 1 1 1-258 is a domestic law that the Court may takejudicial notice of IAW MRE201 A. The Government posits that the ??ndings? (Section 2) in this law are ?legislative facts? ra?ierthan ?adjudicatory facts" and, therefore, are not appropriate for judicial notice. This is certainly the casewith certain legislative materials that express merely personal opinions or legal theories. In this case,however, the fmdings in the law are taken from conclusions in the 9/ Commission report, rather thanmere expressions of Congressional opinion. Furthermore, the ?ndings also stand independently for thefact that Congress believed over-classi?cation was a potential issue and passed this legislation whichcontains notjust ?ndings but speci?c statutory initiatives to address that issue. See, ity ofCharleston v. A Fisherman '5 Best Inc, 310 F.3d 155, 172 Cir. 2002) (takingjudicial notice of aNational Marine and Fisheries Service ?nal rule that summarized Congressional intent for the 1996reauthorization of the Magnuson-Sevens Act). Accordingly, the Court is within its discretion to takejudicial notice of the ?ndings in Section 2 of PL 1 1-258 to the degree they are relevant. Such judicialnotice would be the adjudicative fact that Congress made the ?ndings, not that the ?ndings areadjudicative fact. .82. Relevance: PL ll 1-258 was signed into law on 7 October 2010, after the dates of the charged offensesbut prior to the dates of the original classi?cation reviews of the information charged by the OCAS. In itsruling regarding the Government Motion to Preclude Over-Classi?cation, the Court deferred ruling onwhether evidence of general over-classi?cation in PL ll l-258 is relevant to impeach OCA witnessesMRE 608(c) and whether evidence of general over-classi?cation is relevant during sentencing.Thus, subject to a demonstration of relevance, the Court will take judicial notice of the existence of PL1 1 1-25 8, to include the Congressional findings in Section 2, the date of introduction of HR. 255 and thedate the law was enacted. The Court will not takejudicial notice of the truth of the matter asserted in PL11 1-258 adjudicative facts.Testimony of Mr. Thomas Blanton1. Admissibiliy: The testimony of Mr. Thomas Blanton is not admissible under MRE WhileMr. Blanton?s testimony is part of an official report in this case a Congressional hearing record it doesnot meet the other criteria of MRE Speci?cally, his testimony is not: (1) a report of theactivities of the office or agency Congress); (2) a matter observed by duty of law where there was aduty to report; or (3) factual ?nding against the government made pursuant to an investigation pursuant toauthority under the law. Rather, Mr. Blanton?s statement contains his personal opinions reprintedverbatim in a hearing record. It is hearsay within hearsay. To the extent Mr. Blanton repeats statementsmade by Governor Thomas Kean, Secretary of Defense Robert Gates, the editors of Le Manda and TheGuardian, Secretary of Defense Donald Rumsfeld?s deputy for counterintelligence and security, andHarvard Law Professor Jack Goldsmith, such statements are triple hearsay.2. Relevance: Even if admissible, Mr. Blanton?s prepared statement and oral testimony occurred a?erthe dates of the communications alleged in the charged offenses. Mr. Blanton?s statement and oraltestimony are not relevant on the merits or during sentencing.Admissibilitv 2007 House Committee on Homeland Security Hearing Tr_a_r1?cripts1. Statements by Subcommittee Members The statements by subcommittee members are notadmissible under MRE 803(8). They do not document the activities of Congress. They do not set forthmatters observed pursuant to duty imposed by law as to which matters there was a duty to report, nor dothey represent factual findings resulting from investigation under authority granted by law. Thesestatements represent the personal opinions of individual subcommittee members.2. Tggimony of Mr. Ms. Fuchs. Mr. Agrast. and Ms. Spaulding. The oral statements andprepared testimony of Mr. (22 March and 28 June 2007), Ms. Fuchs, Mr. Agrast, and Ms.Spaulding are not admissible under MRE The Defense states that the transcripts ?documentthe activities of Congress? and therefore fall under MRE The Congressional record oftestimony by these witnesses, however, does not document ?activities? of Congress. Rather, it merelyreprints verbatim their personal beliefs and opinions.3. Testimony of Mr. DowILin.g. The oral testimony and prepared statement of Mr. Downing is notadmissible under MRE While it has been reprinted in an of?cial Congressional transcript, thisdoes not cure the fact that the testimony itself is not a record or report of the activities conducted by theLos Angeles Police Department (LAPD). Instead, it is a testimonial statement that details the generalcounter-intelligence activities of the LAPD and makes certain recommendations regardingdeclassi?cation of infomtation and further dissemination of those documents to state and local lawenforcement authorities.4. Testimon of Chief Lanier. The testimony of Chief Lanier is not admissible under MRE Like the testimony of Mr. Downing, it is not a record or report of the activities conducted by theWashington, D.C., Metropolitan Police Department (MPD). Instead, it is a testimonial statement thatdetails the counter-intelligence operations, and calls for speci?c changes to allow furtherdissemination of classi?ed documents to local law enforcement agencies. 5. Testir_nonv of Mr. Zadra. The testimony of Mr. Zadra is not admissible under MRE lt isnot an official record or compilation of activities of the Florida Department of Law Enforcement. IRather, it largely rc?ects Mr. Zadra?s personal opinion regarding the Controlled Unclassi?ed Information(CUI) framework used by federal agencies.6. Testimony of Arr_1b_assador McNamara. Dr. Morris, and Mr. Murnhv. The testimony of AmbassadorMcNamara, Dr. Morris, and Mr. Murphy is not admissible under MRE The testimony is not acompilation of the records or activities of the agencies that the witnesses represent. Rather, each set oftestimony consists mainly of a summary of completed agency action to deal with problems involvingCUI. The testimony is also irrelevant. The speci?cations against the accused concern classi?edinfonnation, not CUI. Accordingly, the argument in the testimony that CUI is sometimes mismarketl does not help disprove any element of the speci?cations charged.7. Testimonv of Mr. Leonard (22 March 2007). The 22 March 2007 testimony of Mr. Leonard isadmissible under MRE if relevant. It can be distinguished from the other testimony by two keyattributes.a. irst, unlike other witnesses, Mr. Leonard serves as Director of the Information SecurityOversight Office (ISOO) within NARA that was established by Executive Order to provide policyoversight to the entire national classi?cation system.? Pursuant to this authority, ISOO engages inoutreach and information collection activities from agencies within the Executive Branch that classifyinformation. Some of the information is also used to conducts audits and, in turn, suggest follow?uprecommendations for agency classi?cation systems.b. Second, Mr. Leonard?s testimony provides a formal recounting of the official activities of hisoffice, as opposed to personal statements or beliefs. For example, the key assertion cited by the Defense,that trained government classi?ers only made ?clearly? correct classi?cation decisions 64 percent of thetime was based on an official audit. (?in an audit of agency classi?cation activity conducted by my officeapproximately one year ago, we discovered that even trained classi?ers, with ready access to the latestaccess to the latest classi?cation and declassi?cation guides, and trained in their use, got it right only 64percent of the time in making determinations as to the appropriateness of classi?cation?) The fact thatthe testimony is published as an official Congressional hearing record is immaterial, as it would beindependently admissible as an ISOO report or record under MRE or (C).8. All of the statements of subcommittee members and the prepared statements and oral testimony of thetestifying witnesses except those of Mr- Leonard are hearsay and not admissible under MRE 803(8). SeePearce v. The E.F. Hutton Group, Inc. at al. 653 F. Supp. 810 812-815 (D.D.C. 1987). The Courtdeclines to take judicial notice of the statements and testimony. Upon a showing of relevance, the Courtwill takejudicial notice of the existence of Mr. Leonard?s testimony in the Congressional record- TheCourt will not takejudicial notice of the substance of Mr. Leonard?s testimony as adj udicative facts.Relevance 2007 House Committee on Homeland Securig Hearing Transcripts1 See Executive Order 12953, ?Classi?ed National Security Information,? 5.2.10. 1. The 2007 House Committee on Homeland Security Hearings testimony was delivered and published ina Congressional record prior to the date of communications in the speci?cations charging violations of [8U.S.C. 793(e) and l030(a)(l).2. With the exception of Mr. Le-onard?s 22 March 2007 statement and testimony noted below, the 2007House Committee on Homeland Security Hearings are not relevant as substantive evidence of generalover-classification on the merits or for sentencing. The Hearing is entitled ?The Over-Classification andPseudo-Classi?cation Part I, II, and Almost all of the statements and oral testimony primarilyaddress challenges in communications involving classi?ed or pseudo-classi?ed information amongfederal agencies and state and local law enforcement agencies. Pseudo-classification is not relevant to thecharges at issue in this case, neither is communication involving classified and pseudo-classi?edinformation among federal, state, and local intelligence agencies. In addition, the hearings took placefrom March June 2007, almost three years prior to the charged communications at issue in this case.Even if admissible on the merits or in sentencing as substantive evidence of general over?c|assi?cation,the probative value of the 2007 House Committee on Homeland Security Hearings, with the exception ofMr. Leonard?s statement and testimony, is substantially outweighed by the danger of confusion of theissues under MRE 403.3. Mr. Leonarcl?s 22 March 2007 statement and testimony is admissible under MRE 803(8) as a hearsayexception. Whether it is relevant on the merits to cross-examine the OCA witnesses is not ripe forconsideration. The Court defers ruling on this issue and relevance for sentencing until the issues are ripeat trial.RULING:Over-classi?cation Evidence: The Government Motion to Exclude Over-Classi?cation Evidence on theMerits and Sentencing is GRANTED IN PART as set forth above.I. Evidence of general over?classifieation is not relevant as substantive evidence on the merits portion ofthe trial. Even if relevant, the probative value of evidence of general over-classi?cation is substantiallyoutweighed by the prejudice of confusing the issues under MRE 403.2. The Court defers ruling on whether PL l-258 ?Reducing Over-Classi?cation Act? and the oraltestimony and statement by Mr. Leonard is relevant for the limited purpose of cross?examining the 0CAsunder MRE 608(c) and for sentencing until such time as the issues are ripe.Judicial Notice: The Defense motion to take judicial notice of PL I I-258, ?the Reducing Over-Classi?cation Act? and Congressional Hearings Discussing Classi?cation is GRANTED IN PART.I. The Court will take judicial notice of the existence of PL 1 1 1-258, and the existence of the 22 March2007 testimony of Mr. William Leonard upon a showing of relevance as set forth above. The Court willnot take judicial notice of the truth of the matter asserted as adjudicative facts.2. The Court will not take judicial notice of the 16 December 2010 testimony of Mr. Thomas Blantonbefore the House Judiciary Committee or the statements by subcommittee members and the preparedstatements and oral testimony of witnesses who testi?ed before the 2007 House Committee on HomelandSecurity Hearings on Over-Classi?cation and Pseudo-Classi?cation other than Mr. Leonard?s 22 March2007 statement and testimony.11So ORDERED this 3 1st day oflanuary 2013.12DENISE R. LINDCOL, JAChief Judge, Judicial Circuit

e-Highlighter

Click to send permalink to address bar, or right-click to copy permalink.

Un-highlight all Un-highlight selectionu Highlight selectionh