Title: Steele Redacted Transcript Excerpt

Release Date: 2014-03-20

Text: Unmarked redactions were present when Army received this documentUNITED STATESOF AMERICAV.Manning, BradleyE.PFCU.S.Army,HHC, U.S. Army Garrison,Joint Base Myer-Henderson HallFortMyer,Virginia 22211GovernmentTargeted Briefon Courtroom ClosuresEnclosure229March2013E,irvc> 1-toAPPELLATE E X H l B l T i J iPAGE REFERENCED:____PAGE0 F _ PAGES1MJ:Do you understandt h a t even though you b e l i e v e you are2g u i l t y , you have the l e g a l and moral r i g h t t o plead not g u i l t y and t o3place upon the government the burden of proving your g u i l t beyond a4reasonabledoubt?5ACC:Yes, s i r , I understandthat.6MJ:Lieutenant Colonel Steele, take a moment now and consult7again w i t h your defense counsel and then t e l l me whether you s t i l l8want t o plead g u i l t y .9[Accused10ACC:1112complied.]Yes, Your Honor, I s t i l l want t o plead g u i l t y t o thethree charges I p l e d g u i l t y t o .Lieutenant Colonel Steele, I f i n d t h a t your plea ofMJ:13g u i l t y i s made v o l u n t a r i l y and w i t h f u l l knowledge of i t s meaning and14effect.15consciously waived your r i g h t s against s e l f - i n c r i m i n a t i o n , t o a t r i a l16of the f a c t s by a c o u r t - m a r t i a l and t o be confronted by the witnesses17against you."T8accepted.I f u r t h e r f i n d t h a t you have knowingly, i n t e l l i g e n t l y , andAccordingly, your plea of g u i l t y i s provident and i sHowever, I advise you t h a t you may request "to withdraw19your g u i l t y plea at any time before the sentence i s announced, and i f20you have a good reason f o r your request, I w i l l grant i t .2441T r i a l counsel, i s t h e government going forward on any o f the2charges or s p e c i f i c a t i o n s t o which the accused pled not g u i l t y or the3e:^cepted language?4ATC2:l^ot t h e excepted language, Your Honor, however, a l l other5charges t h a t were net dismissed p r i o r t o r e f e r r a l , we are going6forward.7MJ:8So a l l the remaining charges and s p e c i f i c a t i o n s but nott h e excepted language?Okay, thank you.ATC2:Yes, s i r .10MJ:I n t h a t case, 1 w i l l not enter f i n d i n g s a t t h i s time.11The t r i a l i s set f o r 0^00 hours on 15 October,9There w i l l be an12A r t i c l e 3^(a^ session t o l i t i g a t e motions and issues concerning13M i l i t a r y ^ u l e o f evidence 505 and M i l i t a r y ^ u l e o f 5^vidence 50^ on 1214October at 0^00 hours.1516Counsel, are there any issues t o address before the courtrecesses?17ATC2:^o, s i r .18OC:^o, s i r .19MJ:The court i s i n recess.2021^^^The A r t i c l e 3^(a^ session recessed a t 1^2^, 7 October 2007.]O^^A^^.l245^^^^^1[An A r t i c l e 39(a) session was c a l l e d t o order a t 0908, 12 October22007.]3MJ:This A r t i c l e 39(a) session i s c a l l e d t o order. A l l4p a r t i e s present on 7 October 2007 are again present and no a d d i t i o n a l5p a r t i e s are present today.6Now counsel, I j u s t want t o check, I had thought t h a t a t p r i o r7A r t i c l e 39 (a)s before October 7th there might have been s e c u r i t y8o f f i c e r s f o r each side, i s t h a t c o r r e c t ?9a s e c u r i t y o f f i c e r appointed on your side?10ATC2:T r i a l counsel, do you haveYes, s i r , and j u s t f o r c l a r i f i c a t i o n f o r the record,11Captain I n u r e l l Chester f o r the government i s t h e court s e c u r i t y12o f f i c e r and Major Dennis Daniels, the defense13MJ:And t h a t ' s e x a c t l y why I was asking.14ATC2:I t ' s t h e only change t h a t ' s occurred since 7 October,1516s i r , i n terms o f accounting f o r the p a r t i e s .MJ:And they're behind the bar, t h a t ' s why I'm asking t o see17i f they are here.18present and t h e two a d d i t i o n s are Captain CTiester and Mag or Daniels19are both present i n the courtroom.20So, a l l p a r t i e s present on 7 October are againP r i o r t o coming i n t o the courtroom today, I conducted an R.C.M.21802 conference, present were the seven counsel and myself, and we22discussed marking o f t h e documents, which was kind o f p a i n f u l , how2461those were going t o be marked, but I t h i n k we worked through a system2where we can get them marked a p p r o p r i a t e l y ,3as we go along today.45and w e ' l l f i n d that outDo counsel f o r e i t h e r side have any o b j e c t i o n s ,c o r r e c t i o n s ora d d i t i o n s t o my c h a r a c t e r i s a t i o n o f t h e R.C.M. 502 conference?6ATCl:No, Your Honor.7DC:No, s i r .8MJ:And also during the R.C.M. 802 conference, counsel l e t me9know t h a t t h e witnesses f o r an A r t i c l e 13 motion weren't going t o be10ready u n t i l t h e a f t e r n o o n . So what we're going t o do i s we're going11t o handle t h e ^r^n^en hearing f i r s t and then w e ' l l deal w i t h the two12motions t h a t are s t i l l pending, those are a motion t o dismiss, w e ' l l13do t h a t f i r s t as f a r as t h e motions, and then t h e A r t i c l e 13 motion14w e ' l l do second.1^Also, t h e defense hasn't had an o p p o r t u n i t yt o compare a16redacted version o f some documents t h a t they were i n t e n d i n g t o o f f e r17w i t h t h e unredacted versionwere wanting i^o o f f e r .t o see what impact t h a t has on what theyThey're going t o need t h a t when we l i t i g a t e19t h a t p a r t of t h e i^i:-t^nc^en hearing.So, I a n t i c i p a t e t h a t a f t e r we get20s t a r t e d i n a l i t t l e w h i l e , I'm going t o have t o give a decent21recess f o r t h e defense counsel t o accomplish t h a t before we move on.22^ u t what I want t o do i s we're going t o get s t a r t e d w i t h the ^run^en247length1hearing so I'm going t o close the court based on the motion by the2p a r t i e s f o r t h i s ^^unc^er^ hearing i s the reason f o r the court t o be3closed.4i n t o a closed session and then the only ones t h a t w i l l be present5w i l l t^e the seven counsel, the three court s e c u r i t y o f f i c e r s , the6court r e p o r t e r and myself.7other person i n t h e courtroom r i g h t now t h a t t h a t a f f e c t s and then8she's going t o have t o leave the courtroom.9do i s take a b r i e f recess t o accomplish10So what we're going t o do i s we're going t o change and goAnd j u s t f o r tbe record, there's only oneSo what we're going t othat.The c o u r t i s i n recess.11[Court recessed a t 0^12, 12 October 2007.]12[Tbe ne^t session i s a closed session which contains pages 2^913through 312 and i s contained i n the o r i g i n a l record o f t r i a l , only.14The next numbered page of the u n c l a s s i f i e d p o r t i o n o f t h i s record of15t r i a l i s page 313.^1^^^^^ 0^2481(1^^ [An A r - t i c l e 39(9) session was c a l l e d t o oi^der at 0912, 12 October22007.]3(1^) ^ J :Court i s called t o order. A l l parties present before4tbe co^rt recessed are again present. And just f o r tbe record, tbe5court i s closed now. The only parties present are the parties I6mentioned a l i t t l e while ago.^(^) And during tbe recess, tbe t r i a l counsel stated tbat tbe8b a i l i f f bad a proper security clearance,^ i f I wanted ber i n the9courtroom.10111 j u s t fo^nd tbat sbe wasn't necessary so she's not i ntbe coi^^r^tr^oom.(^) Okay, counsel, so what we're going t o do i s t o conduct a12bearing under M i l i t a r y Rule of evidence 505. There^s a couple13reasons why a bearing i s conducted under M i l i t a r y Rule of evidence14505, ^ow, I badn^t mentioned when we were conducting tbe R.C.M. ^0215conference, 1 did also ask tbe t r i a l counsel i f tbey were opposing16tbe defense's o f f e r , tbe evidence that tbe defense intended to offer17as f a r as relevance or f o r any otbei:: reason, or i f they were just^^T^^wanting tbe court t o be closed wben the def^ense^^o^:fered tbat19evidence.And the t r i a l counsel stated tbat tbey weren^t opposing20tbat tbe defense could offer tbat evidence but tbey just wanted tbe21court t o be closed during those portions of tbe court-martial,249^ell,11 mentioned t o tbem, 1 said, ^ ^ ^ e l l , perhaps w i t b tbe exception o f tbe2evidence t b a f ^ s been redacted, i f tbey could use t b e redacted ver-sion3versus an unredacted version, and t b a f ^ s a way i n wbicb tbe coui:^t4would not bave t o close as o f t e n and ensure a p u b l i c t r i a l f o r a5g r e a t e r p o r t i o n o f the t r i a l , which would be i n tbe i n t e r e s t o f6justice.7defense time t o review tbe redacted version and see i f t b a t8accomplishes what they want, or a t l e a s t i n most p a r t .^So, 1 already mentioned t b a t we're going t o give tbe(0) But anyhow, so what we're going t o go do i s we're j u s t going10t o go i n t o see i f there i s s u f f i c i e n t reason t o close tbe court11dui:^ing p o r t i o n s o f the c o u r t - m a r t i a l .12handle i t , and we've s t a r t e d wben 1 t a l k e d w i t b counsel t o t a l k about13i t ^ i s round one, round two and round three, i s tbe c l a s s i f i e d14information15rounds.16^ ^ I , and i t contains 20 d i f f e r e n t documents, 11 t b a t went up t o one17o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y and nine t h a t went up t o a18different original classification authority.19r e l a t i v e l y e a r l y i n the c o u r t - m a r t i a l process.2021And tbe way I'^m going t ot b a t was processed went up i n about three d i f f e r e n tThe f i r s tround has already been marked as Appellate^xhil:^itAnd t b a t was processedAnd t h a t ' s round one.(^^ Round two consisted o f e x h i b i t s t h a t we're going t o t a l kabout at a l a t e r time, but i t was copies o f documents t h a t tbe2501defense wanted t o use and also some documents that the government2wanted t o use, and that was contained i n three d i f f e r e n t binders tbat3we w i l l address l a t e r .4recently t o the Commander of the Multi-National Force, Iraq; I think5i t went up on € October, and that's a smaller round, but that's round6three.7t o handle round one and then we're going t o have t o take a recess8before we cover round two.9And then three i s evidence that went upAnd so, what we're going t o do r i g h t now i s we're j u s t going(U) What I ' l l do i s I have reviewed a l l of the documents that10are contained w i t h i n Appellate Exhibit XXI. And counsel, do you have11any evidence t o present on t h i s issue, t r i a l counsel?12(U) ATCl:No, Your Honor.13(U) MJ:Defense counsel?14(U) DC:No, s i r .15(U) MJ:I'll1617ILZa l l o w you t o argue t h e n .T r i a l c o u n s e l , goahead.(U) ATCl:Yes, Your Honor.^ T07 Tbe^t^andardninder T4 .TTTIEtisnat—19security nature, requires that the a f f i d a v i t demonstrates the20disclosure of the information reasonably could be expected t o cause21damage t o the national security and the degree caused required to2511warrant c l a s s i f i c a t i o n under the applicable executive order or statue2or regulation.^e x h i b i t XXI, the a f f i d a v i t s completed by Ounnery Sergeant and Captain4Oawlick demonstrate that.5memos that are also contained i n that e x h i b i t . Appellate exhibit XXI.6So Your Honor, we ask tbat we close the courtroom f o r tbat portion of7tbe t r i a l related to those documents.8o f f e r two witnesses, gunnery Sergeant ^halen and Captain i^awlick, wbo9are going to discuss those documents.I n both tbe 11 and 9 documents contained i n AppellateAnd again, t h i s was r a t i f i e d i n tbe OCATbe government intends toAnd while they're discussing10those documents—not here today, s i r , but at t r i a l .11they're discussing those documents, we ask that you close the12courtroom t o the public. Your Honor.And whileThank you.13(^) MJ:Defense counsel, you may argue.14(^) DC^Yes, s i r . S i r , with regards to these documents and15the showing tbat the government has made i n terms of closing tbe16courtroom f o r testimony witb regards to tbese documents or the17presentation of tbese documents, defense does not object to tbe^18cTosi^^^^^tbe courtroom regarding tbese documents, ^oweve^^^ we do19reserve tbe r i g h t to object t o foundational objections or otber20objections of that nature with regards to putting tbese things i n t o21evidence or the testimony that would be e l i c i t e d .2521(^) MJ:Sure, a b s o l u t e l y .I mean, t h a t ' s a good p o i n t .2Obviously, t h e c o u r t ' s not going t o admit any o f these documents.3^e're j u s t determining whether or not we're going t o receive t h i s4evidence i n a closed session, t h a t ' s a l l .5(^) OC:Yes, s i r . So, t b e defense has no o b j e c t i o n s t o6r e c e i v i n g t b e i n f o r m a t i o n o f t h i s nature r e l a t e d t o tbese documents7i n a closed session.^(^) MJ:9(^^ Okay, I'm going t o address t b e documents contained i nOkay.[Rause.]10A p p e l l a t e e x h i b i t XXI.11f e l l w i t h i n the purview o f t h e Commander o f M u l t i - N a t i o n a l Force,12Iraq.13Cropper, and i t ' s dated 15 March 200^.14a f u l l ORLAN w i t h t b e s i t u a t i o n , mission, execution, service support15and command and s i g n a l w i t h annexes t h a t inolude photographs and16diagrams o f t h e camp.17some are marked ^^unclassified".181920F i r s t o f a l l , there are 11 documents t b a tThe f i r s t document i s OPLAN 0^01, i s a defense plan f o r CampI t i s marked ^^secret".It'sMost i n t e r n a l p o r t i o n s are marked ^^secret" and(U) second i s a chemical response assessment f o r Fort^^^use, is^"tbat i t ?(0) ATC2:Yes, s i r .2531(^) MJ:Suse i s how tbey pronounce i t ? Okay...dated 9 May2200^.3theater internment f a c i l i t y ' s a b i l i t y to respond to a chemical4attack.5recommendations f o r future C5RN defense for tbat f a c i l i t y .6I t ' s marked ^^secret".Tbis five-page document depicts aI t includes the status of detection assets and(1^) Third, there i s an info b r i e f for the Commander of ^th7Infantry d i v i s i o n concerning Camp Croppers i t ' s dated 6 A p r i l8I t ' s marked ^^secret".9mission, commander's intent, organisation, equipment and f a c i l i t i e s1011200^.These 22 RowerRoint slides show the unit'sand bas two detailed diagrams.(^) Foi.irth i s the Charlie lB1^2d FA guard force chart and two12photos.13document contains a chart witb a number of guards and two aerial14photos with captions.I t ^ s undated; i t ^ s marked ^^secret".151617254This three-page11121314(U) Eighth, a troop t o task info b r i e f , i t ' s undated; i t ' s15marked "secret".16diagrams showing the s t a f f i n g , s h i f t s , and layout f o r an internment17facility.TEThis document contains slides with charts andTU) Ninth, an update b r i e f i n g t o the Commander of the 43d WP19Brigade on the movement of HVC number 1. I t i s undated; i t ' s marked20"secret".Tbese 40 RowerPoint slides show the mission and methods of1movement with the routes, alternate routes, maps and force2protection.I t also contains slides on v i s i t o r issues.3456789(^) Eleventh, slides witb pictures and i d e n t i t i e s of detaineeswitb c l a s s i f i c a t i o n of "other," dated 27 June 200^.I t ' s marked10^^secret'^.11disposition from adjudication f o r other detainees separated by12category.13c l a s s i f i e d as secret by the proper o r i g i n a l c l a s s i f i c a t i o n authority,14which i s tbe Commander of the Multi-National Force, Iraq, wbicb i s15currently Ceneral Retreaus.16executive Order 12958, as amended most recently on 25 March 2003,17s p e c i f i c a l l y sections 1.4 Alpha, 1.4 Charlie and 1.4 Oolf.I t has pictures, i d e n t i t i e s , ID numbers and i n some cases,I f i n d tbat these eleven documents have been properlyi t also has been done i n accordance witb(^ Next, I want t o go i n t o tbe documents tbat f e l l witbitT^he^19purview of united States Army Central.20b r i e f from Major Ceneral Dunlavey, dated 31 March 2002, marked21"secret".F i r s t , tbere i s an executiveThese PowerPoint slides focus on detainee operations i n2561Afghanistan with the concept of tbe operations, photographs,2diagrams, operational issues, and lessons learned.345678^(^) Second, "Detainee Movement Plan," undated, marked "secret".Tbis one-page document contains a map and f l i g h t schedules.(0) Third, more of a detainee movement plan, undated, marked"secret". This one-page document contains a map and times.(0) Fourth, an email dated 8 February 2002, marked "secret".This email discusses release of a named detainee.(U) F i f t h , Al-^aeda and Taliban Leadership, undated, marked10^^s^cret".ii^aeda and Taliban with pictures, i d e n t i t i e s and most current status.12Tbis two-page dooum^nt shows leadership struot^re of A l -(^) Sixth, Southwest Asia Air- Defense A r t i l l e r y update, dated 413A p r i l 2002, marked "secret". These PowerPoint slides contain14information on tbe thi^eat and f r i e n d l y c a p a b i l i t i e s , incli^ding15problems w i t h — c o r r e c t i o n , including problems with recommendations16an^d missile inventory. I n t e r n a l l y , most portions are marked "secret"17witb some marked as "unclassified".18((1) seventh, email^dated 21 May 2 i ^ ^ marked "secret". This19email contains tbe number of detainees as reported by tbe National20Detainee Records Center i n tbe Pentagon.2571(0) Eighth, detainee report, dated 19 May 2002, marked "secret".2This document l i s t s ten detainees by ISN witb location, f u l l name,3n a t i o n a l i t y , date of b i r t h , gender, physical condition and4information about t b e i r capture.5(0) And ninth, slides on Coalition, dated 7 February 2007,6marked "secret".These PowerPoint slides with comments show and7discuss tbe support tbat Coalition countries are providing.8that these documents have been properly c l a s s i f i e d as "secret" by the9proper o r i g i n a l c l a s s i f i c a t i o n authority, which i s the Commander ofI find10the Onited States Army Central, which i s currently Lieutenant Ceneral11^bitcomb.12Execiitive Order 12958, as amended most recently on 25 March 2003,13s p e c i f i c a l l y sections 1.^ Alpha, 1.4 8ravo, 1.4 Charlie, 1.4 l^elta^14and 1.4 Coif.And I f i n d tbat t h i s bas been done i n accordance with(^) From a l l the evidence, I am s a t i s f i e d that there i s a1^16reasonable danger that presentation of these 20 documents before the17public w i l l expose m i l i t a r y matters that, i n the interest of national18security, should not bedivulged.19court would increase the v u l n e r a b i l i t y of Camps Cropper and Suse. I t20would decrease tbe effectiveness of current m i l i t a r y operations i n21Iraq.Specifically, disclosure inopenI t would increase the v u l n e r a b i l i t y of Coalition Forces2581against chemical a t t a c k .2t h e u n i t e d States has w i t h f r i e n d l y and C o a l i t i o n Forces.3endanger t h e l i v e s and s a f e t y o f C o a l i t i o n Forces and i t w i l l4decrease t h e e f f e c t i v e n e s s o f i n t e l l i g e n c e c o l l e c t i o n d u r i n g t b e5c u r r e n t operations.6I t w i l l jeopardise t h e r e l a t i o n s h i p t h a tI t will(^) Counsel, t b e next p a r t i s j u s t t o discuss how t b a t7i n f o r m a t i o n i s going t o be d i s c l o s e d i n c o u r t .And what I'm w i l l i n g8t o do i s we can t a l k about t h e i n f o r m a t i o n f i r s t and a l l t b e9d i f f e r e n t rounds, and then we can go by witnesses i f witnesses are10going t o discuss i n f o r m a t i o n i n m u l t i p l e rounds.11and t h i s evidence i s j u s t going t o come out through a s p e c i f i c12witness o r j u s t i n documentary form, then we can discuss t h a t now.13Trial14Or, i f i t ' s easycounsel?(^) ATCl:S i r , f o r those documents t h a t you've j u s t discussed,15f o r t h e MNF-I documents, the government intends t o c a l l Captain16Cawlick t o o f f e r testimony as t o how those documents r e l a t e t o t h e17n a t i o n a l defense and how they could be used t o t h e i n j u r y o f the1^u n i t e d States o r to^be^advantage19o f t b e 1 8 ^ S C 7 9 3 F c h o charge.20p o i n t i s t b a t Captain Cawlick w i l l t e s t i f y as t o the s p e c i f i c s o f21those documents as i t r e l a t e s t o those two elements o f t b a t offense.o f a ^ o ^ i g n Ti^ation ai^ an elementsSo, p r o b a b l y w b a t w e expect a t t h i s2591Tbe same thing f o r Cunnery Sergeant ^halen, Your Honor, we intend t o2c a l l bim and t o o f f e r similar testimony^ bow tbey relate t o tbe3national defense and how tbey could be used t o tbe i n j u r y of tbe4Ignited States.5(^) MJ:6Now f o r those two witnesses, i s that the only thingthat they're going t o t a l k about?7(^) ATCl:8on one otber thing.^10111^(0) MJ:Sure.(^) ATCl:^ e ' l l argue that i n closing, as well, so i t w i l l come(0^^ MJ:Okay, so i n closing, you^re going t o t a l k about theactual contents of eacb of tbese documents, okay.1^ ^15And Your Honor, i f I may just addout i n tbe closing argument, as well.1213Yes, Your Honor.(^) T r i a l counsel, any other witnesses going t o t a l k about thesedocuments, foundational witnesses?(^) ATCl:Yes, Your Honor.And there's r e a l l y one of two ways17we could do that f o r the foundational witnesses,^e could put a18"secret" cover on the documents t o show tbem or t o bave them look at19that on tbe stand without revealing i t t o anybody who happens t o be20i n the court and then t e s t i f y that, "Yes, I fotind t h i s particular1document on t b i s p a r t i c u l a r CD," or " I found t h i s p a r t i c u l a r document2in"(^) MJ:So they're going to authenticate i t as a document4that they found somewhere, b^t t b e y ^ r e n o t going to t a l k aboutthe5content.6(^) ATCl:The substance of what's i n tbe document, roger, s i r .7(^) MJ:So you're not asking t o close any portion of those89^foundational witnesses' testimony, are you?(1^) ATC2: ^e don't think i t ^ s necessary. Your Honor, but i f yoi.i10don't want us t o put a "secret" cover on tbat and give i t t o tbe11witness l i k e that, we can12(^^ MJ:There's no problem having a "secret" cover on there.13I f i t ' s supposed to bave a "secret" cover, then i t can have a14"secret" cover.15t o go i n t o the contents of i t so there's no need to close any portion16of that foundational witness' testimony. 8ut these other two17witnesses tbat that's a l l they're going t o t a l k about and these18documents are a l l "secret," defense counseT, do you want t o be heard19on tbat as f a r as whether or not these documents are going to be20addressed by any otber witnesses?No, I understand, i t appears to be no need for you1(^) OC:Sir, as f a r as we can see r i g h t now, none of tbe2defense witnesses are going to address the contents of those3documents.4(^^ MJ:A l l r i g h t , well based on tbat, f o r the two witnesses5tbat are going t o t a l k about the impact of these, t h e i r only6testimony i s going to be about these documents.7t a l k about 11 documents and the otber w i l l t a l k about 9 documents.8That's going t o be the only testimony tbat those witnesses provide.9I don't see any way i n which any of t h e i r substantive testimony canApparently, one w i l l10be conducted i n open court based on the nature.11f u l l y read a l l those documents and i t just can't be discussed i n open12court witbout r i s k i n g national security.13do because I'm balancing the r i g h t t o a public t r i a l with tbe14i n t e r e s t of national security, i s even i f a witness i s going to15t e s t i f y only aboiit c l a s s i f i e d information, that's a l l tbe substantive16information, t o tbe public, i t i s i n t h e i r interest for a public17t r i a l tbat tbey at least know who i s i n here t e s t i f y i n g .18i t may be a l o g i s t i c a l pain f o r certain people, but what I do want t o19do i s when tbat witness i s called^ tbe court w i l l be open.20witness w i l l come i n . Tbe witness w i l l take tbe oath.21w i l l state the name, u n i t , etcetera, do any foundational reqtiirementsI t has been clear, IHowever, what I do want t oSo althoughSo theThe witness1as f a r as wbo t h i s person i s . And tben once tbe t r i a l counsel i s2g e t t i n g i n t o the documents, at that point, you can close...you can3ask that the court be closed at tbat point.4(H) T r i a l counsel, are you tracking where I'm going?5(0) ATCl:Yes, Your Honor.6(tl) MJ:I see that as i t ' s d i f f e r e n t than i f tbe members of7tbe public can't even see who's being brought i n here, i t looks l i k e8a secret star chamber i n here and that's not what we want, ^e want9the public t o be able t o view everything that tbey can view, and I10think that accomplishes that f o r those witnesses.11other witness, I see no need t o close any portion of the foundational12witnesses' testimony based on what we know r i g h t now.13that testimony w i l l be conducted i n closed court.H^^^(0) ATCl:Sir, i f I may?1^(i^) MJ:2ure.16263As far as theSo, none of12345(0) MJ:Are they going to t a l k about other matters, too, orj u s t tbese documents?(U) ATCl:Lieutenant Evans, just the document, Ceneral Cardnermay get into other material, as well.(0) MJ:Let me ask you about Lieutenant Evans' testimony,6^hen he t e s t i f i e s , everyone realises that the finder of fact has read7the documents.8or i s be going t o t a l k about the impact? And i f he's t a l k i n g about9the impact, w i l l i t be getting into c l a s s i f i e d information or w i l l heI s he going t o discuss the contents of the documents10necessarily bave to disclose?11don't know what his testimony i s going to be, but I would envision12that be could t a l k abo:^t impact without disclosing any c l a s s i f i e d13information,14^hicb do you think i t is?151617I mean, tbere^s two p o s s i b i l i t i e s ; I^ut I also could see a s i t u a t i o n where he couldn't,1(^) MJ:So be actually w i l l be getting into c l a s s i f i e d2information.3(1^^ ATCl:Yes, Your Honor.4(0) MJ:A l l right.5And i s tbat what's going t o be his...histestimony i s going t o be about s i t e assessment and vulnerabilities?^(^) ATCl:Yes, Your Honor.7(^) MJ:Okay, I'm inclined to close a l l that.I mean,8knowing exactly what's i n the documents and the r i s k involved,9defense counsel, I'm intending t o close tbat portion of his10Tltestimony.Do you want t o be heard on that?(^) DC:No, s i r , we don't bave an objection t o those portions12of Lieutenant Evans' testimony being closed,13i f the complete testimony of Ceneral Cardner were closed because we14believe tbat he's going to be t e s t i f y i n g about various different15matters.16(^) MJ:^e would have objectionAbsolutely, no, I haven't touched that yet because I17don't envision closing a l l his testimony and I think that would be18very u n l i k e l y .19(^^ I f i n d that based on the proffer by the t r i a l counsel, a l l20the substantive evidence by Lieutenant Evans about impact of21disclosure on s i t e assessment and v u l n e r a b i l i t i e s must be held i n2651closed court becatise i t poses a serious r i s k to national security2otherwise.3same way as with tbe other witnesses I talked about whose testimony4was a l l about c l a s s i f i e d testimony.5i n i t i a l questions i n open court and then only when you're ready t o6get i n t o the substance of his testimony w i l l we close the court.7For him, f o r Lieutenant Evans, obviously we handle i t the(t^) ATCl:He'll s t i l l come i n , do theS i r , i f I may j u s t jump i n there.Lieutenant Evans,8h i s duty position and his existence within the Army may i t s e l f be9c l a s s i f i e d , ^e're t r y i n g t o run tbat t o ground.10(^) MJ:Okay.11(^) ATCl:He would be the one witness where that would probably12be an exception t o t h e — I understand what you^re saying. Your Honor,13where the witness comes i n1^15(^) MJ:I understand.I understand di.ity position.So you'^resaying even his existence w i t h i n the Navy?li^(J) ATCl:^ e l l , the fact that he17(^) MJ:You're saying even his existence that he's i n the^^8Navy?^1^(^) ATCl:^e're going to have t o v e r i f y that, Your Honor.20(^^ MJ:Yes, okay, w^ can address that l a t e r .21(^) Do you want to be heard on that, defense counsel?1(1^) DC:Yes, s i r , h i s name and p o s i t i o n were o n — o r not duty2p o s i t i o n , but a t l e a s t h i s name was on a l l t h e witness l i s t s t h a t3were u n c l a s s i f i e d , so I don't t h i n k h i s i d e n t i t y ^ i t s e l f , i s a4c l a s s i f i e d matter.5I t h i n k be can a t l e a s t come i n and be i d e n t i f i e d as a witness and we6can j u s t close i t as t o t h o s ^ d u t i e s t h a t would be considered o f a7c l a s s i f i e d nature.8(^) MJ:9Maybe t h e nature o f h i s work and what be does, sol^nless you come back w i t b f u r t h e r argument onwhy...and I understand t b a t t b e r e might be an argument why acti.ially10h i s name might be removed from c e r t a i n l i s t s f o r a t o u r o f assignment11and perhaps there's an argument there b u t I don't have i t i n f r o n t o f12me.13c u r r e n t assignments d u t i e s ^ t h a t may be c l a s s i f i e d .14o f t e n t i m e s you might ask a person t h e i r name and then next ask t h e15u n i t o f assignment and then go i n t o t h e i r background, but t h i s16witness, what you could do, i s ask h i s name.17d i f f e r e n t r u l i n g based on f u r t h e r argument from you, g e t h i s name,^T8And I agree w i t h defense counsel, i s i n t h a t case, perhaps h i sSo, whereunless I get aperhaps bow long be's^^een i n tbe Navy and maybe some o f t h i s19background.Don't ask b i s c u r r e n t duty assignment u n t i l you get t b a t20f o u n d a t i o n a l p a r t done.And then ask f o r t h e court t o be closed, and2^71tben you can get out bis current assignment a f t e r the court's closed2and then go on from tbere.^(1.1) Do you understand, t r i a l counsel?4(0) ATCl:Yes, Your Honor.5(0) MJ:That's m^y r u l i n g as f a r as r i g h t now. I'm open to6reconsider i f you come back with an argument tbat j u s t his name and7the fact that he's i n tbe Navy r i g h t now i s a c l a s s i f i e d matter,8you're going t o have t o convince me of that beforehand, otherwise my9r u l i n g stands as I just stated, okay?10(^) Now, as f a r as Lieutenant Central Cardner, t r i a l counsel,11what portions...correction, what subject matters i s he going to12cover?13f i r s t of a l l , I don't think you asked f o r Lieutenant Ceneral14Cardner's t o t a l testimony t o be closed, i s that right?I s be going t o cover various sentencing information? ^ e l l ,1^(1^) ATCl: No, Your Honors i t would be l i m i t e d i n scope.1i^(1^) MJ:A l l r i g h t , now, f o r the part where he's talking about17any of these documents, i s he going t o have t o get into tbe contents18of tbe documents l i k e Lieutenant Evans w i l l have to?1920^21123^ ^ ^ ^ ^ ^ ^ ^ ^(^) MJ:A l l r i g h t , I see. So he's not j u s t t a l k i n g about i n4any h y p o t h e t i c a l s i t u a t i o n , "o^hen you d i s c l o s e t h i s type o f5informations t h i s i s t b e r i s k , " he's going t o a c t u a l l y t a l k about i n6this specific7t o t a l k about the contents o f the documents, tbem^selves?case, t h i s i s t h e impact t h a t i t had?So, he's going^(0) ATCl:Yes, Your Honor.^(^^ MJ:So, defense counsel, j u s t t o expedite matters, I'm10i n c l i r t e d t o close t h e p o r t i o n s when he's t a l k i n g about these 2011documents s p e c i f i c a l l y , what was i n tbem and tben t h e s p e c i f i c impact12from those.1^Do you want t o be beard on t h a t ?(0) ADC:No, s i r , I ' l l l i k e l y handle Ceneral Cardner's14testimony.I agree w i t b your e a r l i e r comment about i f he's t a l k i n g1^impact.1^t h e v u l n e r a b i l i t i e s was damaging."17those documents, but I t h i n k i t would be f a i r l y l i m i t e d .18"Tbis one s l i d e , " you know, "This one p a r t i c u l a r . . . " but even t h a t , I19t h i n k he can say, "One of the s l i d e s20vulnerabilities."^1i n p u b l i c forum, l i m i t e d t o t h e very few f a c t s t h a t he might p o i n t t oI t h i n k m^ch o f h i s testimony t o be, "This s o r t o f impact onMaybe there's one or two facts i nYou know,i n t h e r e t a l k s aboutSo I t h i n k as much as p o s s i b l e , we can bave that2691i n tbe documents.I mean, I could see where tbe government might2point out one or two things, but tbe overall impact, I don't believe3that ^ould be c l a s s i f i e d .4^(i^^ MJ:Okay, so....5(^) ADC:Only wben be t i e s i t to a specific fact.6(1.1^ MJ:Right, and I think what they're going to do i s ,7that's what I was t a l k i n g about e a r l i e r , i t sounds l i k e they're going8t o be t y i n g i t t o specific facts.9he's a l l done, and he might be covering more than tbe 20 documents, IBut what you're saying i s , when10don't k n o w i f he's t a l k i n g a b o u t a n y t h i n g e l s e .Eutwhenhe'sall11done, he's ready to give an opinion, overall opinion, on what the12impact of those documents, disclostire of those documents were, tben13that could be done i n open court.14am wanting to chisel away at the closed portion of t h i s t r i a l as much15as possible.16then I'm going t o do that.17correct i n tbat the overall impact, i f you're going to a s k a guestion18about what the overall impact was either of these 20 documents, or i f19you're not doing i t j u s t f o r tbe 20 but i f he's t a l k i n g about other20things and he's going t o say tbe 20 documents plus "X," what's theI'm open t o tbat.Like I said, ISo i f I can chisel out a single question and answer,And i t sounds l i k e the defense counsel i s2701overall impact, and you're going to summarise bis testimony tbat way2at the end, then that would be able to be accomplished i n open court.^45(^) T r i a l counsel, do yo^ intend to do tbat?Do you intend t ogive an overall impact based on(^) ATCl:Yes, Your Honor, i t probably w i l l be two portions.6I t would probably be an—I'm sorry, I shouldn't say ^^would," i t w i l l7be an o v e r a l l impact testimony but he w i l l also t e s t i f y about8specific v u l n e r a b i l i t i e s .^10(^) MJ:Sure.(^) ATCl:And I understand your r u l i n g . Your Honor, that f o r11the overall arching as i t doesn't r:elate to tbe d e t a i l s , tbat that12would be i n open court.1^(^) MJ:Right.1^(i^) ATCl:As i t relates to tbe specifics, details within those151^dociiments, i t would be closed.(^) MJ:Exactly.Okay, that's the r u l i n g of the court,^hen17i t ' s t a l k i n g about impact from disclosure of tbese specific documents18and he's t a l k i n g about what's i n tbe documents, tbat w i l l be19conducted i n closed court.20i n t e r e s t of national seciirity.^^^^I f i n d that i t ' s required f o r theHowever, when be does give an overall2711opinion, what type of impact t h i s caused, tben tbat i s able to be2e l i c i t e d i n open court and that's how i t w i l l be e l i c i t e d .3(U) Okay, I think we've discussed these 20 documents4s u f f i c i e n t l y so I think counsel f o r both sides understand what can be5discussed i n open court, what can be discussed i n closed court.6counsel f o r either side have any questions on the court's ruling j u s t7f o r t h i s round?Do^(1^) ATCl: No questions. Your Honor.^(^) DC:No, s i r .10(0) MJ:A l l r i g h t , now we're ready to move into round two.11And t o do tbat, as I mentioned e a r l i e r , that defense counsels you are12going t o have t o compare the redacted and unredacted volumes of the13evidence that you gave notice that you intended t o o f f e r .14think you understand the goal there i s , i f you're able to use15unredacted versions of emails or memos or l e t t e r s , then what happens,16i f that gets across the point you're t r y i n g to get across, tben we're17able t o accomplish that i n open court and that's the goal of the18court i s t o do that.19what I want t o do as much as possible i s t o conduct t h i s i n open20court.And IAs long as we s t i l l bave a f a i r t r i a l , that's1(^) So as you're going through, do that.However, i f you find2p o r t i o n s t b a t have been r e d a c t e d t h a t ' s r e a l l y what you were wanting3t o get at with that document, just make a l i s t and we can focus i n on4those specific things and perhaps we can, f o r certainreasons, go5i n t o closed court f o r some of those and we might have some unredacted6documents that were within that bigger binder.7you i n on what I want you t o look at during tbe recess so that wben8we come back i n we can t a l k i n d e t a i l about that.910(^) I'm going t o take a recess.I just want to focusDefense counsel, do you think30 minutes i s s u f f i c i e n t ?11(t^) DC:[No verbal response.]12(0) MJ:l^e're going t o plan on that now. I f you need more13time, then j u s t l e t me know before tbe 30 minutes i s up, does that14work?15(^^ OC:Yes, s i r .16(^) MJ:The court i s i n recess.17(^) [Tbe session recessed at 095^, 12 October 2007.]18(^) [Court reconvened at 1305^^12 October 2007.]19(^) MJ:Court i s called t o order.A l l parties present before20tbe court recessed are again present.21session discussing M i l i t a r y Rule of Evidence 505.273The court i s s t i l l i n a closedAnd as I stated.1a l l the p a r t i e s t h a t were present p r e v i o u s l y are again present; no2one e l s e i s present a t t b i s time.3(^) During the recess, I conducted an R.C.M. 802conference.4Present were a l l seven counsel, a l l three s e c u r i t y o f f i c e r s and5myself,6redacted i n f o r m a t i o n they had submitted under M i l i t a r y Rule of7Evidence 505(b) w i t h the unredacted v e r s i o n .8marked as A p p e l l a t e E x h i b i t s XXXand XXXI; XXX i s unredacted, XXXI i s9redacted.^e discussed tbe defense counsels' comparison o f theAnd those bad beenAnd also what we're going t o be discussing now i s10A p p e l l a t e E x h i b i t XXIX as w e l l as A p p e l l a t e E x h i b i t s XXXIII andXXXI^11because tbese a l l r e l a t e t o i n f o r m a t i o n t h a t was processed together,12some o f tbem t o d i f f e r e n t o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t i e s .13d u r i n g tbe R.C.M. 802 conference, defense counsel a r t i c u l a t e d what14e x a c t l y they were going t o go i n t o d u r i n g tbe t r i a l and t h a t assisted15i n focusing the p a r t i e s where we need t o go during t h i s A r t i c l e ^9(a)16session, and w e ' l l go i n t o t h a t i n more d e t a i l .17So(^^ And then also, we discussed a couple of other issues. One18was p r i v i l e g e under M i l i t a r y Rule o f Evidence 50^.And the19government bad provided the court w i t b a memorandum from tbe Deputy20Secretary of Defense, dated 1^ February 200^; t h a t ' s been marked as21A p p e l l a t e E x h i b i t XXX^.And what w e ' l l do i s w e ' l l discuss t b a t at a2741l a t e r time.2exercise o f p r i v i l e g e i n a l l cases i n v o l v i n g s p e c i f i c i n f o r m a t i o n ,3s p e c i f i c a l l y ICRC communications.4i t addresses w i t h i n the memorandum i n d i c a t e s i t may be broader5j u s t t h e one case t h a t ' s mentioned on the document.6S p e c i f i c a l l y , i t ' s t a l k i n g about, apparently i t ' s anSo the way i t ' s addressed and whatthan(^^ Also, we discussed witness issues, s p e c i f i c a l l y there are7t h r e e witnesses t h a t are c u r r e n t l y detainees a t Camp Cropper. And,8according t o tbe defense counsel, those witnesses, they're going t o9be produced, but i f they're produced, they're not going t o say10anything.And so we discussed t h a t , and the counsel were t a l k i n g11about having them declared as u n a v a i l a b l e .12what we're going t o need t o do, f o r t b e c o u r t t o f i n d them13u n a v a i l a b l e , t b e court's going t o need some evidence before i t t o14f i n d them u n a v a i l a b l e .15about the f a c t s t h a t the c o u r t could r e l y on, but the court i s not16going t o be able t o r e l y on a s s e r t i o n s by counsel t o make a17d e t e r m i n a t i o n t h a t witnesses are not a v a i l a b l e .18t a l k d u r i n g breaks today and determine19s t i p u l a t i o n or i f they b r i n g i n other evidence t o support that i f tbe20defense i s s t i l l wanting t o c a l l those witnesses.21a l t e r n a t i v e means t h a t the defense i s going t o use, tbey can do t h a t ^But on f u r t h e r thought,And i f tbe p a r t i e s enter i n t o a s t i p u l a t i o n275So, the coi:insel cani f they wanted t o enter i n t o aOr, i f there's1also,^ut the court, t o make a determination of nonavailability, the2court does have t o have evidence i n front of i t t o make that fact3specific ruling.4(^) Okay counsel, what we're going to do now i s we're going5t o . . . w e l l , f i r s t of a l l , does anyone have any objections, corrections6or additions t o my characterisation of the R.C.M. 802 conference?7T r i a l counsel?8(0) ATCl:No, s i r .9(^^ MJ:Defense counsel?10(^) DC:No, s i r .11(^) MJ:Okay, and we'll go i n more d e t a i l as I said12about...the bulk of tbe time tbat we were i n there we were going down13p r e t t y studiously specific information i n Appellate Exhibits XXX and14XXXI.15Exhibit XXI and I jt:ist want t o say f o r the record that I did find16that tbe need f o r excluding the public from portions of tbe t r i a l17that I delineated i s of s u f f i c i e n t magnitude so as t o outweigh the18danger of any miscarriage of j u s t i c e which may r e s u l t from j u d i c i a l19proceedings being carried out i n even p a r t i a l secrecy.20218ut I j u s t w a n t t o mention, wehadalreadycovered Appellate(0^ Also, the 20 documents that were discussed within AppellateExhibit XXI along with a l l other c l a s s i f i e d exhibits tbat the court2761already bas w i l l be placed i n a separate volume or volumes of the2record of t r i a l that w i l l be appropriately marked and handled as3c l a s s i f i e d i n accordance with DoD and Army regulations.4(1^) Also, one thing that I want to ask t r i a l counsel to focus a5l i t t l e b i t m o r e o n a couple of the witnesses.6Cawlik and Cunnery Sergeant ^halen, you said tbat a l l t h e i r testimony7was going to be about the c l a s s i f i e d documents and the impact,8a c t u a l l y , they're not going to t a l k about impact, r i g h t , because9they^re j u s t going to be t e s t i f y i n g on the merits, i s tbat right?As f a r asCaptain^ell,10(^) ATCl:Yes, s i r .11(^) MJ:Okay, and that answers the question.12(^) As f a r as Appellate Exhibits XXX andXXXI, which was tbe13submission by a defense counsel under M.R.E. 505(h), does either side14have any additional evidence t o present on t h i s at t h i s point?15counsel?li^(^)ATCl:No,17(0)MJ:Defense?^^18^1^20TrialYour Horror.(^)^^No,sir,^(^) MJ:Okay, I ' l l hear arguments then.you need to be heard?277^T r i a l counsel, do1(^) ATCl:No, Your Honor.I believe tbat you have a l l the2evidence you need before you witb tbe a f f i d a v i t and tbe OCA3determination and Chief Cendron's determination that they're4c l a s s i f i e d . Your Honor, to close those portions that s p e c i f i c a l l y5relate t o that part of the t r i a l .^(0) MJ:Okay, tbank you. Defense counsel?7(^) DC:Yes, s i r . And s i r , do you want me t o go through891011i n d i v i d u a l l y each of tbe(^) MJ:No, I ' l l do tbat, and j u s t track along and make sureI cover i t adequately wben I go through i t .(J) DC:Yes, s i r . ^ i t b regards t o the matters tbat were12presented i n tbe 505 notice, we would argue tbat we don't have any13objection, tbere were certain portions tbat we went through during14tbe 802 conference between the redacted and tbe unredacted portions15of Appellate Exhibit XXX and XXXI.16of the issues tbat we want t o get across t o tbe court, tbe unredacted17version of tbe 317 pages of emails i s s u f f i c i e n t with the exception18of tbe specific emails tbat were pulled out and discussed during tbe19802 session.20tbat those things sbould be covered i n a closed session because of^e believe that f o r tbe majorityAnd we are amenable t o having those things and we agree2781t b e nature o f the m a t e r i a l s t b a t are contained w i t h i n those emails2and t b e t h i n g s t h a t w i l l be discussed.3(^) MJ:Okay.4(^) DC:S i r , w i t h regards t o some of the otber matters t h a t5were l i s t e d i n our 505 n o t i c e i n regards t o t b e ICRC r e p o r t s and6those other t h i n g s , those are s t i l l pending.7t o do those on Monday. So, I'm j u s t focusing t h i s s p e c i f i c a l l y on8t b e emails t b a t were i n t h e redacted and unredacted p o r t i o n s .9S p e c i f i c a l l y , Your Honor, we don't i n t e n d t o i n t r o d u c e i n t o evidenceI b e l i e v e we're going10those s p e c i f i c emails subject t o t b e need f o r cross-examination or11impeachment or t h i n g s o f t h a t nature, but those are emails t h a t t h e12witnesses t h a t we're going t o present on d i r e c t examination and also13through cross-examination, t h a t ' s i n f o r m a t i o n t h a t w i l l be touched14through cross-examination and d i r e c t examination.15emails are a r e p r e s e n t a t i v e sample o f t h e nature o f t h e i n f o r m a t i o n16t b a t we want t o get i n t o .17d e l i n e a t e d f o r a closed session are those t o p i c s o f i n f o r m a t i o n t h a t18we b e l i e v e should be closed t o t h e p u b l i c based on t b e nature o f t h e19information.20(J) MJ:And so, thoseAnd so, those p o r t i o n s s p e c i f i c a l l yA l l r i g h t , thank you.2791(^) A p p e l l a t e E x h i b i t s XXX and XXXI contain numerous emails,2attacbments, memoranda, l e t t e r s and s i m i l a r documents.As the3defense counsel j u s t s t a t e d , the defense does not i n t e n d t o o f f e r a l l4those documents during the t r i a l but i t was an i n t e n t t o reduce t o5w r i t i n g the i n f o r m a t i o n6examination or d i r e c t examination of witnesses.7h e l p f u l i n t h a t regard; i t was easier t o see i t i n context w i t h8everything9through the o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y who went through i t i nthey intended t o e l i c i t , e i t h e r dt.iring crossAnd I t h i n k i t waselse and i t enabled t h e government t o process t h a t up10great d e t a i l and delineatedwhich parts were c l a s s i f i e d and which11were n o t . So I t h i n k t h a t was h e l p f u l i n g e t t i n g t b a t accomplished.12(1^) I f i n d t h a t c e r t a i n i n f o r m a t i o n w i t h i n those e x h i b i t s ,13s p e c i f i c a l l y i n four general areas, and they've been redacted out of14A p p e l l a t e E x h i b i t XXXI, are c l a s s i f i e d as "secret" by tbe proper15o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y which i s the Commander o f tbe16Multi-National17accordance w i t b Executive Order 12958 as c u r r e n t l y amended.18general t o p i c s are JIDC i n c e n t i v e s , detainee and f a m i l y names,19manning issues and weaknesses and the i n t e l l i g e n c e c o l l e c t i o n ,20i n c l u d i n g methods and procedures.Force, I r a q , which i s c u r r e n t l y Ceneral Retreaus, i nTbe fourThose four very broad subjects2801f a l l w i t h i n the categories i n sections 1.4 Alpha, Charlie and Delta2of Executive Order 12958.3(U) Also, and more s p e c i f i c a l l y , upon comparing the redacted and4unredacted copies of the materials that the defense had submitted5under M i l i t a r y Rule of Evidence 505(h) notice, the defense pinpointed6specific facts that were redacted that i t wants to e l i c i t i n a closed7session.8adequately covers what the defense wants to cover.Those facts are...and I boiled i t down t o 15 that I think^^^^^^^^^^^^^^^^^H^^^^^^HH10111213(U) Second, d e t a i l s on detainee privileges covering phone c a l l sand v i s i t s .HHI^^^^^^^^^^^^^^^^^^^^^^^^^^^^I151617Ts19(U) Fourth, ICRC issues; and we'll address that l a t e r as far asICRC issues.^1234(^) Seventh, more information about the release procedures.5(J) Eighth, the fact that t h i r d country nationals are detained6at Camp Cropper.7(1^) Ninth, a specific 510 request for Detainee Number 184.8(1^) Tenth, an increase i n the number of family v i s i t s and phone91011c a l l s over a certain period of time as shown with tbe chart.(il) Eleventh, more information concerning the ICRC, s p e c i f i c a l l yt h e i r reports.12131415161718192021(0) And f i f t e e n t h , information on the mission of Camp Cropperswhy i t was designed and what i t s current mission i s now.(0) Defense counsel, have I adequately covered the points thatyou broi:ight up?2821(U) DC:Yes, s i r .2(1^) MJ:I t h i n k you bad i t down t o 19 or so, but I t h i n k some3of them were redundant.4(1^) OC:Yes, s i r .5(^) MJ:I find that t b i s specific information i s c l a s s i f i e d6" s e c r e t " by the proper o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y i n7accordance w i t h Executive Order 12958 as c u r r e n t l y amended.8s p e c i f i c i n f o r m a t i o n does f a l l w i t h i n the categories and91.4(a),(c) and(d) of Executive Order 12958.AndthissectionsFrom^ a l l the evidence10and from the circumstances i n t b i s p a r t i c u l a r case...now, before I11s t a t e t h i s , l e t me c l a r i f y .12the ICRC i n f o r m a t i o n separately.13t h a t mentioned the ICRC, so t h i s r u l i n g does not ^pply t o those.14Those w i l l be handled separately.15f o r the f o u r general categories mentioned i n the a f f i d a v i t , I am16s a t i s f i e d t b a t there i s a reasonable danger t h a t p r e s e n t a t i o n of17these m a t e r i a l s before tbe p u b l i c i n open court w i l l expose m i l i t a r y18matters which i n the i n t e r e s t of n a t i o n a l s e c u r i t y should not be19divulged.20of s u f f i c i e n t magnitude t o outweigh tbe i n t e r e s t i n having a l l t r i a l s21open t o the p u b l i c .I s a i d e a r l i e r we were going t o handleSo, t b e r e were two of the 15itemsFor the other 13 items and alsoAlso, the danger i s of s i g n i f i c a n t — w e l l , c o r r e c t i o n , i s2831(^) Now defense counsel, are you able t o delineate which witness2i s going to t a l k about any of tbese specific matters, or i s i t going3t o depend on the direct examination?4(^) OC:S i r , a majority of i t w i l l depend on the direct5examination because both defense witnesses and government witnesses6i n a l o t of circumstances w i l l cross.7need t o get out from those witnesses we put on our witness l i s t w i l l8l i k e l y come through cross-examination as opposed t o c a l l i n g tbem9again during tbe defense's case.1011(^) MJ:i^nderstood. T r i a l counsel, does the governmentintend t o go i n t o any of these areas on direct examination?12(^) ATCl:One moment. Your Honor.13(^) MJ:Yes.14(1^) ATCl:1516And so, the information we[Pause.]Sir?I think there's a l i t t l e b i t of c l a r i f i c a t i o n — I ' dask f o r a l i t t l e c l a r i f i c a t i o n on your r u l i n g on detainee privileges.(^) MJ:Yeah, I said d e t a i l s on detainee privileges.So17there, i t would be...and i t ' s hard to a r t i c u l a t e ,18Appellate Exhibits XXX and XXXI i s the general nature of detainee19privileges i s not c l a s s i f i e d ,20d e t a i l s of how many c a l l s are allowed, how long someone has to be21there before they're authorised t o c a l l .that's clear i n^ut when you get i n t o the specific284So r e a l l y when I say that.1I'm t a l k i n g about tbe redacted portions w i t h i n Appellate Exhibits XXX2and XXXI.3wondering i s whether you're going to go i n t o any of those details4witb any of your witnesses.5That's what's c l a s s i f i e d "seci:^et," so that's what I'm(0) ATCl:Is i t unclear at t h i s point?No, s i r , I believe we w i l l on several witnesses get6i n t o the specific phone c a l l s that detainees are allowed and bow7we're alleging that Colonel Steele deviated from that when he8prcvided an unmonitored phone c a l l .9Your Honor, that i t ' s eitber going t o be covered by 50^ as we madeSo, t o the extent--I believe,10that request wben tbat comes i n , and depending o n — I think tbe11s p e c i f i c i t y i s i f i t ' s t i e d t o a specific detainee, that's when i t12becomes c l a s s i f i e d . I f i t ' s not t i e d t o a specific detainee....13141516172850) ATCl:13Yes, s i r , I can give you a l i s t of governmentwitnesses tbat are going t o touch on tbat area, sir?14(U) MJ:Sure, please.1516171819^^^^^(U) MJ;2021^^^^^^And defense counsel, are you able t o add any to thatlist?mBHH^^H2861(^) DC:Yes, s i r . S i r , Sergeant Major ^inkleman, who was2Colonel Steele's sergeant major i n t b a t time.H e ' l l probably touch3on issues l i k e t h e mission o f Camp Cropper, t h e persons a t Camp4Cropper...oh, I'm s o r r y , d i d you j u s t want t h e names, s i r ?5(0) MJ:Yes, j u s t t b e names.6(1^) OC:Sergeant Major ^inkelman, probably Lieutenant Colonel7^ a r t a n i a n . S t a f f Sergeant Findley and Captain M e r r i t t .And then,8s i r , from t b e government's l i s t , we b e l i e v e t b a t those s o l d i e r s t h a t9served as guards or S a l l y Port guards or t h i n g s o f t h a t nature t h a t10may be t e s t i f y i n g about s p e c i f i c s w i l l also get i n t o some o f those11t h i n g s d u r i n g cross-examination o r i t may come out through d i r e c t .12(^) MJ:Okay, a l l r i g h t s t h a t ' s s u f f i c i e n t .Okay, so f o r13those witnesses...and14f o l l o w i n g , be sure I ' l l c o r r e c t you on t h e spot.15t o do i s l i k e I s a i d , package your c l a s s i f i e d and u n c l a s s i f i e d . And16t b e reason why t h a t ' s important, t w o f o l d ; one, i s I don't want t o17close t h e c o u r t and then have a l o t o f u n c l a s s i f i e d i n f o r m a t i o n18coming o u t when I could bave bad t h e p u b l i c s i t t i n g i n here l i s t e n i n g19t o a l l tbat.20economy, I don't want t h i s t o be a parade i n and out o f the courtroom21a l l day long d u r i n g one witness' testimony.cotinsel, I ' l l be t r a c k i n g , i f you're notI don't want t h a t .B^t what I need youAnd then second, f o r j u d i c i a lSo those are my two1purposes f o r having you package i t .So I t h i n k everyone's clear on2t h a t and i f I t h i n k you're not doing t h a t , I ' l l j u s t c o r r e c t you on3t h e spot.4(0^ Okay, next, we're going t o t a l k about two s p e c i f i c areas5t h a t were w i t h i n those same two a p p e l l a t e e x h i b i t s , XXX and XXXI.6They went i^p t o d i f f e r e n t o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t i e s and the7two issues are, one i s a l e t t e r from Ambassador ^ h a l i l ^ a d t o tbe8Prime M i n i s t e r o f I r a q , and also I t h i n k there was a memo t o tbe9Ambassador from one o f h i s employees concerning t h e same l e t t e r .And10then a l s o , there's a request from tbe Commander o f Task Force 515 t o11t h e Commander o f Task Force 134 concerning i n c e n t i v e approach12techniques.13d i d go up t o a d i f f e r e n t OCA.1415I j u s t want t o approach those separately because they(1^) Do counsel f o r e i t h e r side need t o be heard on e i t h e r o ftbese two separate doci^ments?16(^) ATCl:No, Your Honor.17(1^) DC:No, s i r .18(^) MJ:Okay, and f i r s t o f a l l , I t h i n k I had mentioned19e a r l i e r t b a t a t t h e back o f A p p e l l a t e E x h i b i t XXXI^ was added a20department n o t i c e from t h e Department o f State.21o r not a c e r t a i n p o s i t i o n was autbori:^ed or delegated t h e a u t h o r i t y288I t concerns whether1of o r i g i n a l c l a s s i f i c a t i o n authority.And looking at that document,2i t does address the issue I had.3top of the fourth page, i t s p e c i f i c a l l y addresses tbat.4document t h i s appellate exhibit i s t a l k i n g about i s a l e t t e r from the5Ambassador t o the Prime Minister of Iraq; i t ' s dated 5 January 200^6and i t ' s also an action memo to the Ambassador from his employee, Mr.7David L i t t , and that's dated 11 October 2005.8memo that discusses the international and c o a l i t i o n implications of9the release of two H^Ds i n January of 200^.On the bottom of tbe t h i r d page,And tbeThere's a l e t t e r andThe H^Os are mentioned10by name and discuss the quantum of evidence i n t h e i r criminal cases.11(^^ This document has been c l a s s i f i e d as "secret" by the proper12o r i g i n a l c l a s s i f i c a t i o n authority, which i s the section head of the13P o l i t i c a l M i l i t a r y A f f a i r s at the ^.S. Embassy i n Iraq, who at tbe14time was Ms. ^aren Sassabara, i n accordance with Executive Order1512958 as currently amended. And the information within that l e t t e r16does f a l l within the categories i n sections 1.4(b) and 1.4(d^.17the evidence and the circumstances i n t b i s case, I am s a t i s f i e d there18i s a reasonable danger that presentation of tbese materials before19the public i n open court w i l l expose m i l i t a r y matters which i n the20i n t e r e s t of national security should not be divulged and that danger21i s of s u f f i c i e n t magnitude to warrant closing the court.289From1(J) Now defense counsel, what's tbe means by which you're going2to e l i c i t tbat information, the actual l e t t e r or just through3testimony?4(J) OC:Sir, j u s t testimony.5(0) MJ:Okay, and tben j u s t handle that testimony the same67way as tbe otber areas tbat we j u s t discussed.(J) DC:Yes, s i r .^9102906789^0) Defense counsel, again, the same question, do you intend t oo f f e r that document or i s i t through a testimony of witnesses?(0^) OC:I t ' s j u s t through the testimony of witnesses. YourHonor.10(^) MJ:11information,Okay, handle that the same way I directed the otber12(^) Counsel, now what we're going t o do i s we're going t o13address the information that's contained i n Appellate Exhibit XXIX.14Tbe information that I j u s t covered also was covered by Appellate15Exhibit XXIX but we're going t o cover the rest of the information16w i t h i n tbere.17or arguments? T r i a l counsel?18(^) ATCl:Oo counsel f o r eitber side have any evidence t o offerSir, j u s t on the series of rules of engagement, both19MNF-I and MNC-I that are i n tbat, that w i l l likely...depending on how20you rule on tbe j u d i c i a l notice, be documentary evidence.291Otherwise,1we'll have t o c a l l a witness that w i l l come i n through testimony and2tben as a document.34(^) MJ:So I j u s t wanted toI understand, s^re.Fair enough; okay, that'shelpful.5Oefer^se counsel?6(^) OC:Sir, can I b r i e f l y look at i t ?7(^) MJ:Sure.8(^) OC:S i r , are we t a l k i n g to Binder 1, those documents i n91011[DC reviews e x h i b i t . ]8inder 1?(^) MJ:Yes, a l l the doc^ents i n Appellate Exhibit XXIX,there should be 11. Have you had a chance t o look at hat?12(^) OC:Yes, s i r , with the exception of tab 1, but tbe others13ten tabs, we have.14(1^^ MJ:Co ahead and look at tab 1, tben.And apparently,15t r i a l counsel, you can correct me i f I'm wrong, but i t w i l l help the16defense ccunsel, i t appears that tab 1 was evidence you intend to17e l i c i t from witnesses through witness testimony.18appears tbat someone went through and put i n red a l l the testimony19that would be "secret," c l a s s i f i e d as "secret". And then when i t20went up f o r the OCA determination, i t was determined that that red21testimony i s "secret," i s that correct?And apparently, i t1(1^) ATCl:One moment. Your Honor.2(^) MJ:Sure.3(0) DC:S i r , w i t h regards t o some o f the doct.^ments t h a t are4i n binder 1, I b e l i e v e some o f those SOPs are s t i l l pending review.5So, we may have more argument on those SOPs when we do t h a t on6Monday.7(^^ MJ:That's a good p o i n t .And we can t a l k about t h a t now,8i s I'm i n c l i n e d a t t h i s p o i n t t o f i n d t h a t tabs 2 through 5 have not9been c l a s s i f i e d by any a u t h o r i t y , so they would not f a l l w i t h i n10M i l i t a r y Rule o f Evidence 505. So I ' d e i t h e r make t b a t r u l i n g or11what we could do i s put t h a t o f f .12s t i l l working on t h a t issue, whether they would f a l l under 502 or13some other r u l e .I t h i n k t h e t r i a l counsel was14(^) ATCl:Yes, Your Honor.15(1^) MJ:So what I ' l l do i s f o r tabs 2 through 5, I ' l l j u s t16defer on those documents.17t h a t ' s a good p o i n t , defense counsel.181920(1^) OC:So we're looking a t 1 and ^ through 11;And s i r , we're j u s t s p e c i f i c a l l y t a l k i n g about tbec l o s i n g o f t h e hearing f o r discussion on those m a t e r i a l s ?(^^ MJ:Yes.123(^) OC:Yes, s i r . Other than t h a t , we don't have any otherargument f o r purposes of those enclosures or those tabs.(0) MJ:F i r s t o f a l l , I'm going t o cover tabs ^ through 10;4I'm going t o address them t o g e t h e r .5i n those f i v e tabs has been c l a s s i f i e d as " s e c r e t " by the proper6o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y , which i s the Commander o f the7M u l t i - N a t i o n a l Force, I r a q , Ceneral Retreaus, and i n accordance w i t h8Executive Order 12958 as amended most r e c e n t l y on 25 March 2003.9S p e c i f i c a l l y , what's contained i n those tabs i s M u l t i - N a t i o n a l ForcedThosefivetabs, tbeinformation10I r a q , Framework Operations Order, dated 1 May 200^, marked as11" s e c r e t " o v e r a l l w i t h most p o r t i o n s marked " s e c r e t " and some marked12"unclassified".13s e r v i c e support and command and s i g n a l .14Annex C t o MNC-I Operations Order 0^-01, dated 21 A p r i l 200^.15marked as " s e c r e t " o v e r a l l w i t h most p o r t i o n s marked " s e c r e t " and16some marked " u n c l a s s i f i e d " .17engagement f o r i^.S. forces f o r OPORD 0^-01.184 t o Annex C t o M u l t i - N a t i o n a l Corps, I r a q , Operations Order 05-02,19dated 27 J u l y 2005, a l s o marked as " s e c r e t " o v e r a l l w i t h most20p o r t i o n s as " s e c r e t " and some marked as " u n c l a s s i f i e d " .This21appendix contains r u l e s of engagement f o r 4I.S. f o r c e s .Tab 9I t contains t b e s i t u a t i o n , mission, execution,Tab 7 has Appendix 7 t oAlsoTbis appendix contains t h e r u l e s o f294Tab 8 contains Appendix1contains Appendix 5 to Annex C t o Multi-National Force Framework,2Operations Order dated 1 May 200^, marked as "secret" witbmost3poi:'tions marked "secret" and some portions marked "^.unclassified".4This appendix contains rules of engagement f o r l^.S. forces.510 contains tab Bravo t o Appendix 5 t o Annex C to Multi-National6Force, Iraq, Framework Operations Order dated 1 May 200^, marked as7"secret" o v e r a l l witb most portions marked "secret" and some marked8"unclassified". This annex contains d e f i n i t i o n s f o r rules of9engagement.10And tab(^) From a l l the evidence and from the circumstances i n t b i s11case, I am s a t i s f i e d tbat there i s a reasonable danger that12presentation of these materials before the public w i l l expose13m i l i t a r y matters which, i n the interest of national security, should14not be divulged.^5(0) Next, I want t o address tab 11, and tbat was a M i l i t a r y Rule16of Evidence 505 notice from the defense, dated 3 September 2007. I t17was not marked as c l a s s i f i e d and tbe memo goes through i n the18subparagraphs, i n subparagraphs A through R t a l k s about evidence that19may be offered at t r i a l that could f a l l w i t h i n M i l i t a r y Rule of20Evidence 505.213e, 3f, 3g, 3b, 31, 3k, 31, 3n and 3r i s c l a s s i f i e d as "secret" byI f i n d that tbe information mentioned i n subparagraphs1the proper o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t y , which i s t h e Commander2of M u l t i - N a t i o n a l312958 as amended.4executive order i t f a l l s , I ' l l cover those separately.5^d and 3f i s c l a s s i f i e d " s e c r e t "6would f a l l w i t h i n section7Subparagraph 3g t a l k s about a r o s t e r of released detainees, and t h a t8would f a l l w i t h i n categories 1.4(a) f o r m i l i t a r y operations and91.7(e^.Force, I r a q , i n accordance w i t b Executive OrderNow, as f a r as which categories w i t h i n theSubparagraphsas f a r as detainee names.And t h a t1.4(a) f o r m i l i t a r y operations.And the reason f o r i t f a l l i n g w i t h i n category 1.7(e) i s10although i n d i v i d u a l f a c t s w i t h i n there might not be c l a s s i f i e d , the11c o m p i l a t i o n o f t b e i n d i v i d u a l u n c l a s s i f i e d inform^ation meets the12requirement f o r a c l a s s i f i c a t i o n l e v e l o f ^^secret".1^141516171819202129612345(^) OC:Yes, s i r .6(^) MJ:I ' l l s t i l l address i t i n hopes t b a t they do t e s t i f y .7But t h a t i n f o r m a t i o n would f a l l w i t h i n categories 1.4(a^ and 1.4(c).8From tbe evidence, I f i n d t h a t t h e i n f o r m a t i o n i n the subparagraphs I9j u s t mentioned does create a reasonable danger t b a t presentation o f10these m a t e r i a l s before t h e p u b l i c i n open court would expose m i l i t a r y11matters wbich i n t h e i n t e r e s t of n a t i o n a l s e c u r i t y should not be12divulged.13(^) Now, as f a r as t h e other subparagraphs, j u s t so we're c l e a r14on t h i s , t r i a l counsel, subparagraphs 3a through 3d, i t doesn't f a l l15w i t h i n M i l i t a r y Rule o f Evidence 505, i s t h e government pursuing a16d i f f e r e n t avenue o f approach f o r those?17(^) ATC2:Yes, Your Honor, we'repursuingM.R.E. 50^. ^e18b e l i e v e , and I b e l i e v e we marked i t p r e v i o u s l y , but the memo signed19by t h e Secretary20because i t does not apply t o t h a t s p e c i f i c case but t o ICRC21communications g e n e r a l l y , Your Honor.of Oefense sbould be s u f f i c i e n t f o r t h a t i n v o c a t i o n ,2971(0) MJ:^hat we're going t o do, what I i n t e n d t o do i s ,2defense counsel, you haven't bad a chance t o look a t t b a t memo a t3l e n g t h , have you?4(U) OC:No, s i r .5(0) MJ:And so o b v i o u s l y we're not doing t r i a l by ambush, so6I'm going t o give the defense counsel enough time t o look at t b a t and7then w e ' l l l i t i g a t e i t wben they've had ample o p p o r t u n i t y8Okay, so t h a t ' s your approach w i t h t b a t one.910(^) And subparagraph(^) ATCl:t o prepare.3 j and 3m?^ i t h regards t o 3 j , Your Honor, I b e l i e v e t h a t Chief11Cendron recommended t h a t i t be u n c l a s s i f i e d as s t a t e d .12s p e c i f i c s i n s p e c i f i c cases w i l l probably have t o be t r e a t e d13d i f f e r e n t l y . Your Honor.141516(^) MJ:And nowSo you're t a l k i n g about s p e c i f i c detainee records, i stbat i t ?(^) ATC2:Yes, Your Honor, on j t h e r e .I t h i n k as stated, as17they s t a t e d , i t ' s u n c l a s s i f i e d ; however, I t h i n k i t would be a18d i f f e r e n t case w i t b more s p e c i f i c19(^) MJ:information.Okay, r i g h t , I'm l o o k i n g a t i t .Oefense counsel, do20you i n t e n d t o get i n t o s p e c i f i c detainee records or j u s t the general21nature of the conversation t h a t took place i n the emails?2981(^) OC:S i r , f o r j , t h a t was t h e general nature.However,2i t ' s a l s o covered by subparagraph 3e, and those are the s p e c i f i c3records d e a l i n g w i t b c e r t a i n determinations of detainees.4determined t o be " s e c r e t , " but i n terms o f the general i n f o r m a t i o n5and the c l a s s i f i c a t i o n l e v e l i n general, t h a t ' s testimony t h a t would6be e l i c i t e d but not n e c e s s a r i l y s p e c i f i c t o a s p e c i f i c detainee.78(4I) MJ:So 3e wasOkay, you're r i g h t , yeah, because "e" was secret i fi t got i n t o a s p e c i f i c detainee w i t h t b e name.^(^) OC:Yes, s i r .10(^) MJ:Okay, understood, a l l r i g h t .11(J) ATCl:S i r , Your Honor, t o the e x t e n t t h a t "e" and " j " are12redundant,i f they don't get i n t o any s p e c i f i c s , tbe government won't13have any issues w i t b t h a t .14(^) MJ:And, 3m?15(^) ATCl:Your Honor, again, t h i s i s a 506 request t h a t ' s w i t b16t b e Secretary o f the Army t b a t we hope t o bave signed before Monday,17Your Honor.18s p e c i f i c p r i v i l e g e s as contained i n those emails, Your Honor.19p o r t i o n o f t h a t obviously w i l l be c l a s s i f i e d as you p r e v i o u s l y20determined and then a p o r t i o n w i l l h o p e f u l l y a s — o n Monday, the 50^21material.You also d i d make a s p e c i f i c r u l i n g a moment ago about299So, a1(0) MJ:Is there any ambiguity as f a r as, what do I mean by2specifics concerning privileges or what's not specifics, i t ' s easy.3A l l you bave t o do i s i f you look i n and compare the redacted and4unredacted versions of Appellate Exhibits XXX and XXXI, you can see5the level of d e t a i l that's c l a s s i f i e d and tbe level of d e t a i l that's6not c l a s s i f i e d .7c l a s s i f i e d and what's not c l a s s i f i e d .8you hope t o have a document from^asbington concerning M.R.E. 506 by9Monday?So i n my mind, there's a clear l i n e there of what'sA l l r i g h t , so you're saying10(0) ATCl:Yes, Yo^r Honor.11(^) MJ:And subparagraph 3o does not appear t o be c l a s s i f i e d12and i t doesn't appear that there's any,..it can be discussed i n open13court.14I s tbat r i g h t , t r i a lcounsel?(t^) ATC2: ^ e l l , again, Your Honor, I think there's a15d i s t i n c t i o n tbat the fact that we do segregate people, i n general, i s16not c l a s s i f i e d , Your Honor, but a specific case, again, you know, f o r17instance, "^e segregated high value detainee number sucb and sucb18over here because of t b i s specific reason," we probably crossed that19line.20tbat we do segregate people, i t s e l f , i s not c l a s s i f i e d , Your Honor.But again, as written here^ tbat i s not c l a s s i f i e d .The fact300,^,^.^^^4^^.^,^1(^) MJ:2i n general terms?3(^) OC:Just i n general terms, yes, s i r .4(0) MJ:Okay, a l l r i g h t , that's f i n e .56I s that where you're going, defense counsel, i s justThen that one shouldbe clear t o discuss i n the open then.(0) Okay, 3p has already been covered by some of tbe other7rulings, I think, i s that r i g h t , defense counsel?8of things i n there as far as....There's a couple9101112(^) MJ:Exactly.16(0) MJ:Okay, that's the way I i n t e r p r e t i t , too.17(U) 3q covers ICRC evaluations; that's going t o be covered18separately wben we discuss ICRC, and tbat w i l l be Monday j u s t because19defense needs time to prepare for that.20of tab 11.131415301And I think that covers a l l1(0) Next, the only otber tab we bave l e f t i n tbe book, remember,2we're going t o push tabs 2 through 5 o f f , i s tab 1. Now, what that3i s i s the witness expected testimony. I t ' s undated and what's4happened i s someone bas gone i n tbere and put i n red font specific5testimony. And then what's happened i s when i t went up to the OCA,6the OCA c l a s s i f i e d tbat testimony as "secret," which actually i s the7way i t works so i t ' s clear as f a r as that testimony that tbe8government intends t o e l i c i t from those witnesses and those areas9would be c l a s s i f i e d as "secret".1011(^) Does counsel for eitber side want to be heard on that tab,tab 1?12(^) ATCl:No, Your Honor.13(0^ MJ:Oefense?14(^) OC:No, s i r .15(0) MJ:I f i n d tbat tbe synopsis of those 18 witnesses'16testimony, which i s highlighted i n red font, has been c l a s s i f i e d as17"secret" by the proper o r i g i n a l c l a s s i f i c a t i o n authority, which i s18tbe Commander of the Multi-National Force, Iraq, currently Ceneral19Retreaus, i n accordance with Executive Order 12958 as amended. From20a l l the evidence and a l l the circumstances, I'm s a t i s f i e d there's a21reasonable danger that the presentation of these materials before tbe3021public w i l l expose m i l i t a r y matters, which i n the interest of2national security, should not be divulged.3(1^) I think we're almost tbere. ^e're going t o next address4Prosecution Exhibit 1 foi^ i d e n t i f i c a t i o n s wbich apparently contains5detainee records.6argument on t b i s issue?7(1^) ATCl:8about again?9(0) MJ:10Do counsel f o r either side have any evidence orT r i a l counsel?Your Honor, I'm sorry, what binder are we talkingI t ' s PE 1 f o r ID; i t ' s the detainee records, 15detainees, computer printouts.11(^) ATCl:No, nothing from tbe government. Your Honor.12(1^^ MJ:Oefense counsel?13(^) DC:S i r , not with regards t o , I guess, tbe c l a s s i f i c a t i o n14levels,15t h i s evidence would actually come i n during the court-martial.1617^e're s t i l l reserving the same objection as before as to how(^) MJ:understood, okay, yes, and we're just coveringM i l i t a r y Rule of Evidence 505 issues now.18(0) DC:1^(^) MJ:Yes, s i r .So I won't be admitting t h i s document at this point.20So a l l normal evidentiary objections are s t i l l available to you.21Prosecution Exhibit 1 for i d e n t i f i c a t i o n contains Task Force 1341detainee records.I t ' s undated; i t ' s marked as " s e c r e t " and i t bas2p r i n t o u t s from a computer database t b a t l i s t s 15 detainee by ISN,3name, gender, n a t i o n a l i t y a n d c u r r e n t d i s p o s i t i o n .4c l a s s i f i e d as " s e c r e t " by the proper o r i g i n a l c l a s s i f i c a t i o n5a u t h o r i t y , wbicb i s the Commander of M u l t i - N a t i o n a l Force, I r a q ,6Ceneral Retreaus and i n accordance w i t h Executive Order 12958 as7amended on 25 March 2003.8c a t e g o r i e s i n sections 1.4(a) and 1.4(c).9from the circumstances i n t h i s case, there i s a reasonable dangerIthasbeen^Tbis evidence does f a l l w i t h i n theFrom a l l the evidenceand10t h a t the p r e s e n t a t i o n of these m a t e r i a l s before tbe p u b l i c w i l l11expose m i l i t a r y matters, which i n the i n t e r e s t of n a t i o n a l s e c u r i t y ,12sbould not be d i v u l g e d .13by p r o v i d i n g a n t i - C o a l i t i o n members w i t h a comprehensive l i s t of14detainees wbich could also l i m i t t h e i r value as sources.15provides d e t a i l s on the procedures of detainee operations, wbicb16would binder i n t e l l i g e n c e c o l l e c t i o n from f u t u r e detainees.17t h a t the need t o exclude the p u b l i c i s of s u f f i c i e n t magnitude sucb18as t o outweigh the danger of a miscarriage of j u s t i c e which might19a t t e n d j u d i c i a l proceedings c a r r i e d out even i n p a r t i a l secrecy.^021(^^ NowI t would hinder c u r r e n t m . i l i t a r y operationsAlso, i tI findt r i a l counsel, how are you going t o o f f e r t h i s ? I t ' sgoing t o be o f f e r e d as a document, i s t h a t c o r r e c t ?3041(^) ATCl:28 0 3 ( ^ ) , Your Honor.3answer. Your Honor.4^(1^) MJ:902(11) n o t i c e , we provided t b a t t o t b e defense, yes,Not through witness testimony, I guess i s t h eNot tbroi.igh witness testimony,^ e l l , I was j u s t5l o o k i n g a t as f a r as bow we're going t o b i f u r c a t e tbe t r i a l , but6w e ' l l leave t h a t up t o j u s t normal e v i d e n t i a r yobjections.7(^) A l l r i g h t , so t o summarise, I t h i n k we're done w i t h the8M i l i t a r y Rule o f Evidence 505 issues t h a t we're going t o address9today.The issues t h a t are s t i l l open are t h e r e weresome...well,10t h e issue about ICRC records and e v a l u a t i o n s .11g o i n g t o get achance t o l o o k a t tbe memo f r o m t h e O e p a r t m e n t of12Oefense concerning t h a t and then w e ' l l discuss t h a t Monday morning.13Also, there's some i n f o r m a t i o n t h a t was covered today that has not14been c l a s s i f i e d as " s e c r e t " . The defense counsel s a i d tbey may be15g e t t i n g something16Monday.17covered i n a closed session, w e ' l l cover t h a t on Monday.18192021Defense counsel i sfrom Washington on t h a t and w e ' l l cover t b a t onOr, i f there's some o t b e r argument on why t b a t would be(U) Counsel, what I want t o do now i s t o l i t i g a t e motions t h a tare s t i l l pending.(1^) ATCl:Yes, t r i a l counsel, you're standing up?Your Honor, t b e r e was an a d d i t i o n a l p o r t i o n , I guessi t ' s round three f o r a l a c k . . . .3051(1^) MJ:2(^) ATC2: Round three, tbere was tbe database tbat we jtist3Round three?discussed, but the defense had also submitted detainee records.4(il) MJ:And has tbat been marked as an appellate exhibit?5(^) ATCl:I believe so, Your Honor. And Your Honor, the issue6there i s that many of those or some of those documents were declared7c l a s s i f i e d by the OCA, but there are some i n there that are not8classified.9much, but...and I wish I'd brought t h i s up at the 802 session, but we^Pause.] And Your Honor, not t o complicate matters too10also received the 902(11) notice from the defense yesterday with11documents similar t o those but not included i n that and bave never12received a c l a s s i f i c a t i o n review, and there's I think 19 documents i n13tbe 902(11) notice that bave not been sent t o the OCA.14(^) OC:Sir, i f you look at tbe 505 notice, I believe tbat15those were actually already reviewed because both of those documents16tbat you're reviewing f a l l under 3 Echo and 3 Foxtrot and that 3 Echo17pertains t o tbe various m^agistrate reviews, the A r t i c l e 78 board18determinations conducted on the detainees linked t o Charge I . And19subparagraph20pertain t o the release and approval f o r release of the detainees from21Camp Cropper from that period of time, and i t s p e c i f i c a l l y delineates3 Foxtrot, s p e c i f i c a l l y pertains to...the documents3061which detainees we're r e f e r r i n g t o .2Echo and 3 F o x t r o t which were deemed by the c l a s s i f i c a t i o n review t o3be c l a s s i f i e d " s e c r e t " .4doct:tments t h a t — t b e documents provided back t o the government were5documents t h a t w e r e p r o v i d e d t o us by6(0) MJ:So, those were captured under 3And s i r , tbese documents were a l l thethegovernment.Yes, but t h a t doesn't accomplish what they need.7mean, you s t i l l have t o t e l l tbem what you intend t o o f f e r so they8know t o process i t f o r a c l a s s i f i c a t i o n review i n advance.^(0) OC:IRoger, s i r , and we b e l i e v e t h a t i n 3 Foxtrot we10s p e c i f i c a l l y l a i d out the s p e c i f i c detainees, the s p e c i f i c release11documents, and same t h i n g w i t b 3 Echo and the s p e c i f i c detainees and12t h e i r reviews.13(^) ATCl:Your Honor, i n response t o t h a t , those were14s p e c i f i c a l l y reviewed by the OCA and determined not t o be c l a s s i f i e d .15And r e a l l y the problem, tbe crux o f the problem i s t h a t we received16tbese on l a t e n o t i c e , these s p e c i f i c documents on l a t e n o t i c e ,17got them on I t h i n k i t was 2 October from the defense, and we j u s t18simply d i d not have time t o get those t o t h e Secretary o f the Army or19probably t h e OCA f o r 502 m a t e r i a l .2021(^) OC:^eS i r , w i t b t h a t , the defense was not aware t h a t tbegovernment needed more s p e c i f i c documents.307Retween 3 September when1we put n o t i f i c a t i o n and 2 October, i t wasn't u n t i l 2 October t h a t tbe2government asked us t o give them...to parse i t down and give them3more s p e c i f i c t h i n g s because they thought i t was too broad or there4were t o o many documents.56(0) MJ:Now,you i n t e n d t o use those documents or j u s ttestimony about the i n f o r m a t i o n i n the documents?7(^) DC:Those documents, s i r .^(0) MJ:Those documents, okay.9(tl) OC:And s i r ,i t ' s not testimony, i t would be documentary10evidence t h a t would go i n t o evidence.11the...unless I'm mistaken, but the determination was made t h a t those12would be c l a s s i f i e d documents or c l a s s i f i e d " s e c r e t " i f tbey13were...by tbe i n i t i a l c l a s s i f i c a t i o n review t h a t was done on the 50514n o t i c e and wben they went through tbe various subparagraphs.15(^) MJ:And I tbougbt t h a tA l l r i g h t , w e l l , I ' l l look at t h a t .Now,as f a r as16A p p e l l a t e E x h i b i t XXXII, t r i a l counsel, and i t ' s good you caught17t h a t , there was a binder t h a t I bad overlooked. And I bad seen these18m a t e r i a l s before though.19hasn't been c l a s s i f i e d as " s e c r e t , " I understand t b i s i s m a t e r i a l20t h a t the defense i s wanting t o o f f e r , i s t h a t r i g h t ?21(0) ATCl:Now,as f a r as the i n f o r m a t i o n here t b a tYes, Your Honor.3081(^) MJ:And so i f there's information here that's not secrete2i t comes out i n open court.3f a l l s w i t h i n 50^?4(1^) ATCl:Or are you pursuing an argument tbat i ti^e believe i t f a l l s within 50^, Your Honor,^e sent5tbem t o OTJAC; however, tbe l i k e l i h o o d of getting that t o the6Secretary of the Army before Monday i s extremely low.789(^1 MJ:But did tbey go up with the otber s t u f f that tbeywere going t o the Secretary of the Army with?(^) ATCl:No, Your Honor.I think there was over a thousand10documents w i t h i n these detainee packets, 1,400 t o be exact, and we11asked the defense t o i d e n t i f y the specific doctiments and they did.12They gave i t t o us on 2 October.13s t u f f tbat went t o OTJAC, I can give you the exact date i f yo^ give14me a moment. Your Honor.^e got them u.p t o OTJAC. The other15(i^) MJ:^as i t some time i n September?16(^^ ATCl:Yes, Your Honor.17(^) M^J:^ e l l , what increases your chances of speed up there18i s i f they were already moving t o get i n f r o n t of the Secretary witb19some otber related documents, the chances tbat they might be able t o20whip a l l that s t u f f together and bring i t i n at the same time i s a21l i t t l e better.So they may be able to get that i n . This issue3091appears t o f a l l within tbe same issues that we're going to be2covering Monday.3when we address similar issues.456Sowe're j u s t going t o c o v e r t h i s areaon Monday(^) But t r i a l counsel, thank you f o r bringing that up. I hadoverlooked tbat one binder.(^) Counsel, what I want t o do now i s l i t i g a t e two motions that7are pending.The f i r s t motion concerns a motion t o dismiss by the8defense.9anyone intend t o present any, on t b i s motion, any evidence i n openLet me just ask before we go into an open session, does10court?11c l a s s i f i e d and i t w i l l be handled appropriately.12t o present any testimonial evidence or argue concerning c l a s s i f i e d13information during t h i s motion?14I f i t ' s a document, you can submit a document and i t may beDoes anybody intend(^) ATC3: The government, s i r , bas c l a s s i f i e d information t o15o f f e r on behalf of the motion.There's a l o t of unclassified16information, too, that tbe government i s prepared t o offer tbat w i l l17confirm what the OCA declared as...the database printout that's been18marked "secret" and properly c l a s s i f i e d "secret". A l o t of tbe19c l a s s i f i e d information w i l l be presented based on the fact tbat we'^e20going t o be t a l k i n g about these allegations being at Camp Croppers21these enemies being at Camp Cropper, which we'll v e r i f y that these3101individuals were a l l at CampCropper at tbat time.2government believes that most of i t s argument i s going to be i n a3c l a s s i f i e d setting, although some of the documents are mixed as4unclassified and c l a s s i f i e d .56(0) MJ:Sure, no, that's fine.So, theBut i s part of your argumentyou're going t o have t o t a l k about c l a s s i f i e d information?7(^^ ATC3: About c l a s s i f i e d information, yes, s i r .8(^) MJ:9And defense counsel, you'll probably have to do thesame i f they do that.So what we'll do tben i s we're going to open10up tbe court and when we get into tbat portion, we're just going11t o . . . i t ' s good practice f o r bow the t r i a l i s going t o run, i s I ' l l12take the f i r s t argument by tbe proponent of the motions whoever bas13the burden of proof, and then go unclassified.14ready t o go i n t o c l a s s i f i e d information, j u s t ask for the court t o be15closed,16we'll go t o tbe opponent's argument, s t a r t witb the c l a s s i f i e d since17i t ' s already closed and when you're done with the c l a s s i f i e d18argument, then we'll open the court and tben we'll go unclassified.19I s everyone clear on that?^ e ' l l go into closed session.311And tben when you'reAnd then wben yoi.i're done,1(^) OC:S i r , I don't believe that the argument that we're2going to present i s going to cover any c l a s s i f i e d materials, ^e're3j u s t going to r e l y on tbe documents f o r review of the court.4(J) MJ:5open session now.6tbe b a i l i f f can come i n .7Okay, f a i r enough then,^e're going to go into anSo, i f someone could j u s t l e t the b a i l i f f know and(U) ^e're going t o take a recess i n place.The court i s i n8recess.^(1^) [Tbe A r t i c l e 39(a) session recessed at 1425, 12 October 2007.]10^^^o^^A^.^312

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