Title: Ruling: Def Motion for Relief under RCM 1001(b)(4) Undersecretary Kennedy, 6 Aug 13

Release Date: 2014-03-20

Text: UNITED STATESOF AMERICAv.Manning, Bradley E.PFCU.S.Army,HHC, U.S. Army Garrison,Joint Base Myer-Henderson HallFortMyer, Virginia 22211RULINGS Defense MotionFor Appropriate ReliefUnder RCM1001(b)(4)^Under Secretary Kennedy6August2013On5August 2013,in accordance with the procedures established in the Court'sRuling: DefenseMotionfor Appropriate ReliefUnderRCM1001(b)(4)(AE 639), the Defense filed the followingsix specific objections to the testimony ofUnder Secretary Patrick Kennedy(AE 636). Also on5August 2013,the Government filedaresponse in opposition (AE 637), For each Defenseobjection, the Government position is belowthe objection, followed by the Court'sruling on thatobjection,1, The testimony related to the diminution ofreporting through diplomats in the field andthrough those that would speak to Department ofState (DOS) diplomats in various countries.Under Secretary Kennedy indicated that he believed the diminution of reporting was due toachilling effect caused by the charged leaks in this case. The Defense objects to this testimony asnot directly related to or resulting ftom PFC Manning'smisconduct under R.C.M. 1001(b)(4).Government Positions Under Secretary Kennedy'sopinion on the diminution ofreporting wasbased on facts or data perceived by or made known to Under Secretary Kennedy before thehearing. His conclusion was that PFC Manning'smisconduct causedadiminution of reporting,which was the natural and probable consequence ofPFCManning'sactions, and not based onany intervening event that played the only important part in bringing about that effecLRulingsa. Under Secretary Kennedy'stestimony that there wasadiminuation in reporting due toachilling effect caused by the WikiEeaks'releases ofpurported Department ofState (DOS)cables given toWikiLeaks by PFC Manning is admissible aggravation evidence tmder RCM1001(b)(4) with the following caveaL Tothe extent Under Secretary Kennedy'stestimony islimited to periods directly following WikiEeaks'releases, or directly following subsequentmedia accounts ofthe WikiEeaks releases in the various countries, it is directly related to andresulting from PFC Manning'soffenses.b. The foundation for Under Secretary Kennedy'sopinion that PFC Manning'smisconduct resulting in the WikiLeaks'disclosures of purported DOS cables causedalong-termdiminuation in reporting that continues to date is not based on any quantifiable data. It isspeculative and inadmissible tmder MRE 403. The Cotut^ will not consider iLAPPELLATEEXHIBIT^^PAGEREFERENCED:OFPAGES2. The testimony related to the belief that if we (United States)do not have the trust of others,we cannot get accurate information and that if we (United States)do not get accurate informationwe cannot compileacompleteproducL The Defense objects to this testimony as not be directlyrelated to or resulting from PFC Manning'smisconduct underRCM1001(b)(4),Government Positions Under Secretary Kennedy provided this information as context for thefoundation ofhis ultimate opinion, and this was based on his personal experience andknowledge.Rulings This is explanatory testimony that falls within the scope ofUnder Secretary Kennedy'sexpertise in the useof diplomatic reporting. The testimony forms part ofthe foundation for therelevance ofhis testimony and opinion in(l)above. It is admissible tmder RCM1001(b)(4) forthat purpose,3. The testimony related to the beliefthat non-govemmental persons were no longer willing totalk fully and ftankly with United States diplomats due to the charged leaks in this case. TheDefense objects to this testimony as not be directly related to or resulting from PFC Manning'smisconduct under R,C.M.1001(b)(4).Government Positions Under Secretary Kennedy'sopinion on the lack of openness of nongovernmental persons was based on facts or data perceived by or made known to UnderSecretary Kennedy before the hearing. His conclusion was that PFC Manning'smisconductresulted in the tmwillingnessofnon-govemmental persons to talk fully and ftankly with theUnited States, and was the natural and probable consequence ofPFCManning'sactions, and notbased on any intervening event that played the only important part in bringing about that effecLRulings This opinion testimony is similar to the opinion testimony in(1)above and isadmissible aggravation evidence under RCM1001(b)(4)foralimited duration in time followingtheWikiLeaks releases or subsequent media accounts ofthe WikiEeaks releases in the variouscotmtries as set forth in the Court'sruling in(l)above.4. The testimony related to the beliefthat some embassies included less information in theirreporting than they did before out offear that the information would not be protected. UnderSecretary Kermedy testified that the act ofreporting less information wasaself^generatedlimitation on information ftom various embassies and not asaresult of direction by the DOS,The Defense objects to this testimony as not be directly related to or resulting ftom PFCManning'smisconduct under R.C.M.1001(b)(4).Government Positions Under Secretary Kennedy'sopinion that embassies included lessinformation in their reporting was based on facts or data perceived by or made known to UnderSecretary Kennedy before the hearing. His conclusion was thatPFC Manning'smisconductresulted embassies including less information was the natural and probable consequence ofPFCManning'sactions, and not based on any intervening event that played the only important part inbringing about that effecLRulings The testimony that PFC Manning'soffenses caused some embassies to include lessinformation in their reporting for fear the information will not be protected is admissible underRCM1001(b)(4), but is limited in time to periods directly following theWikiLeaks releases ordirectly following subsequent media accounts ofthe WikiEeaks releases in the various countriesassetforthintheCourt'smlingin(1)above. PFC Manning'soffences directly resulted in thedecisions by certain embassies to report less information in their cables,5, The testimony related to the belief that the disclosures hadachilling effect on diplomaticreporting and that the disclosures have had and will continue to have an impact on reporting forsome indefinite time period. The Defense objects to this testimony as not be directly related toor resulting ftom PFC Manning'smisconduct under R.C.M.1001(b)(4) and also as beingspeculative.Government Positions Under Secretary Kennedy'sopinion on the chilling effect on diplomaticreporting and his opinion on the future impact on reporting were based on facts or data perceivedby or made known to Under Secretary Kennedy before the hearing. His conclusion was that PFCManning'smisconduct resulted in this chilling effect and the future impact, and these resultswere the natural and probable consequences ofPFCManning'sactions,and not based on anyintervening events that played the only important part in bringing about those effects.Rulingsa. Under Secretary Kennedy'sopinion on the chilling effect on diplomatic reportingoccurring during periods directly following the WikiEeaks releases or directly followingsubsequent media accounts of the WikiEeaks releases is admissible under RCM1001(b)(4) asdirectly relating to and resulting ftom PFC Manning'soffenses.b. The foundation for Under Secretary Kennedy'sopinion that PFC Manning'smisconduct resulting inWikiLeaks disclosures of purported DOS cables causedalong-termchilling effect on diplomatic reporting that continues to date and will continue into theftttureisnot based on any quantifiable data. It is speculative and inadmissible tmder MRE 403. TheCourt will not consider iL6. The testimony that due to the perceived chilling effect on diplomatic reporting, the decreasein information has hadanegatively effect on policy makers inWashingtonD.Candourinteragency partners. Specifically,Under Secretary Kennedy testified that policy decisions arebeing made based upon incomplete information (because other countries chose not to engage infull and ftankreporting,which reporting is relied on by policy makers). The Defense objects tothis testimony as not be directly related to or resulting ftom PFC Manning'smisconduct underR.C.M.1001(b)(4) and also as being speculative. The Defense also objects based on foundationsince Under Secretary Kennedy did not explain how he is familiar with policy making, thevarious variables that go into policy making, and how diplomatic reporting fits into policymaking. Also, "policy making" is an extremely broad category. Under Secretary Kennedy didnot explain what type ofpolicy making he was referring to and certainly he is not an expert on"policy making" in general.t ^Government Positions The United States qualified Under Secretary Kennedy as an expert inthefieldsof"management and operations ofthe Department ofState" and "the use ofdiplomaticreporting by United States policy makers." The Defense did not contest this expertise. UnderSecretary Kennedy'sopinion on the impact to policy makers inWashingtonD.C.andinteragency partners was based on facts or data perceived by or made known to Under SecretaryKennedy before the hearing, and not speculative in nature. His conclusion was that PFCManning'smisconduct hadachilling effect that negatively affected policy makers,which wasthe natural and probable consequence ofPFCManning'sactions, and not based on anyintervening event that played the only important part in bringing about that effecLRulingsa. Under Secretary Kennedy'stestimony about policy making in general,the variablesthat go into policy making, and how diplomatic reporting fits into policy making is within hisexpertise on the use ofdiplomatic reporting by United States policy makers and his 40 plus yearsofworking at the highest levels ofthe interagency decision making organizations, is relevant,and is admissible to lay the foundation for his opinions in(l),(3),(4),and(5) above.b. The foundation for Under Secretary Kennedy'sopinion that the accused'soffenses hadanegative effect on policy makers inWashingtonD.Candour interagency partners and thatpolicy decisions are being made based upon incomplete information (because other countrieschose not to engage in ftill and ftankreporting,which reporting is relied on by policy makers)isnot based on any quantifiable data. It is speculative and inadmissible under MRE 403. TheCourt will not consider iLMRE 403 analysis.Under Secretary Kennedy was properly accepted as an expert in management and operations ofthe Department ofState and in the use ofdiplomatic reporting. The probative value ofthoseportions ofhis testimony ruled admissible as aggravation evidence underRCM1001(b)(4) is notsubstantially outweighed by the danger ofunfair prejudice under MRE 403. The Court haslimited the scope of the opinion to the periods directly following theWikiLeaks releases ordirectly following subsequent media accotmts of theWikiLeaks releases in the various countries.SoORDEREDthis6^dayofAugust2013DENISEREINDCOL,JAChiefJudge,1^^ Judicial Circuit

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