Title: Plaintiff's Cross Motion for Summary Judgement and Response to Defendant's Motion for Summary Judgement

Document Date: 2016-04-29

Text: Case 1:15-cv-01654-APM Document 14 Filed 04/29/16 Page 1 of 33

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHELSEA MANNING a/k/a
BRADLEY E. MANNING,

Plaintiff,

v.

Case No. l:15-cv-01654-APM

U.S. DEPARTMENT OF JUSTICE and the
FEDERAL BUREAU OF INVESTIGATION,

Defendants.

PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT AND
RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Freedman Boyd Hollander
Goldberg Urias & Ward P.A

Nancy Hollander

D.C. Bar No. TX0061

Vincent J. Ward

Amber Fayerberg

20 First Plaza, NW, Suite 700

Albuquerque, NM 87102

(505) 842-9960

Attorneys for Plaintiff

Case 1:15-cv-01654-APM Document 14 Filed 04/29/16 Page 2 of 33

TABLE OF CONTENTS

Table of Authoritiess................................................................. ii

I. Introduction......................................................................1

II. Statement of Material Facts as to Which There is No Genuine Issue ................3

III. Argument..........................................................................7

a. The FBI has failed to meet its burden to justify its complete and

categorical withholding of records.........................................9

b. FBI Declaration Fails to demonstrate that the Responsive Records
Relate to a Concrete Prospective Law Enforcement Proceeding, as

required by § 552(b)(7)(A)................................................10

i. The FBI's use of “Functional Categories” creates a constructive,

and impermissible, blanket exemption ..............................11

ii. Because Ms. Manning has already been tried and convicted by

the U.S. Army, there can be no pending or prospective law
enforcement proceedings her........................................14

iii. The Court Cannot Infer, on the Basis of the FBI’s Vague
Declaration, that Materials Relating only to Ms. Manning

would interfere with any other “Resulting Prosecutions”............15

c. The FBI has failed to meet its burden that it disclosed any reasonably

segregable material ......................................................18

i. The FBI fails to establish that it conducted any segregability

review; that any such review occurred is implausible...............20

ii. The FBI conflates the functional category analysis with the

segregability analysis.............................................22

III. CONCLUSION ....................................................................25

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TABLE OF AUTHORITIES

Page(s)

Cases

Am. Civil Liberties Union v. U.S. Dep’t of Defense,

628 F.3d 612 (D.C. Cir. 2011).................................................8, 9

Am. Civil Liberties Union v. U.S. Dep’t of Justice,

655 F.3d 1 (D.C. Cir. 2011)....................................................8

Barnard v. Dep’t of Homeland Sec.,

598 F. Supp. 2d 1 (D.D.C. 2009)...........................................18, 24

Bevis v. Dep’t of State,

801 F.2d 1386, 1389 (D.C. Cir. 1986)....................................9, 12, 13

Blanton v. U.S. Dep’t of Justice,

182 F. Supp. 2d 81 (D.D.C. 2002)..............................................20

Campbell v. Dep’t of Health & Human Servs.,

682 F.2d 256 (D.C. Cir. 1982).............................................10, 13

*Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of

Justice, 746 F.3d 1082 (D.C. Cir. 2014)...................................passim

Concepcion v. U.S. Customs & Border Prot.,

907 F. Supp. 2d 133 (D.D.C. 2012).........................................21, 24

Consumer Fed’n of Am. v. Dep’t ofAgric.,

455 F.3d 283 (D.C. Cir. 2006)..................................................9

Conway v. U.S. Internal Revenue Serv.,

447 F. Supp. 1128 (D.D.C. 1978)...............................................25

Crooker v. Bureau of Alcohol, Tobacco & Firearms,

789 F.2d 64 (D.C. Cir. 1986)............................................2, 11, 13

Defenders of Wildlife v. U.S. Border Patrol,

623 F. Supp. 2d 83, 90 (D.D.C. 2009)..........................................22

Dep’t of Air Force v. Rose,

425 U.S. 352 (1976)............................................................7

Elec. Privacy Info. Ctr. v. Dep’t of Justice,

511 F. Supp. 2d 56 (D.D.C. 2007)..............................................19

ii

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Elec, Privacy Info. Ctr. v. Dep ’t of Justice Criminal Div.,

82 F. Supp. 3d 307 (D.D.C. 2015)...........................................17, 18

FBI v. Abramson,

456 U.S. 615 (1982)............................................................8

Gallant v. NLRB,

26 F.3d 168,171 (D.C. Cir. 1994)...............................................9

Gavin v. U.S. S.E.C.,

No. 04-4522, 2005 WL 2739293 (D. Minn. Oct. 24, 2005)......................24,25

Goldstein v. Treasury Inspector Gen. for Tax Admin.,

No. 14-CV-02189 (APM), 2016 WL 1180158 (D.D.C. Mar. 25, 2016)..............23, 24

Grafton v. United States, 206 U.S. 333, 345-48 (1907)

206 U.S. 333,345-48 (1907).....................................................3

Gray v. U.S. Army Criminal Investigation Command,

742 F. Supp. 2d 68 (D.D.C. 2010)...........................................22, 23

Gutman v. U.S. Dep’t of Justice,

238 F. Supp. 2d 284 (D.D.C. 2003)..............................................25

Juarez v. Dep’t of Justice,

518 F.3d 54 (D.C. Cir. 2008).........................................9, 11, 13, 19

Judicial Watch, Inc. v. U.S. Dep’t of Def,

715 F.3d 937 (D.C. Cir. 2013)..................................................9

Kingv. U.S. Dep’t of Justice,

830 F.2d 210 (D.C. Cir. 1987)..................................................11

*Lawyers ’ Comm, for Civil Rights of San Francisco Bay Area v. U.S. Dep’t
of the Treasury, No. C 07-2590 PJH, 2008 WL 4482855 (N.D. Cal.

Sept. 30, 2008) (Lawyers)..................................................22, 23

Long v. U.S. Dep 7 of Justice,

450 F. Supp. 2d 42 (D.D.C.), order amended on reconsideration, 457 F.

Supp. 2d 30 (D.D.C. 2006), amended, 479 F. Supp. 2d 23 (D.D.C.

2007)..........................................................................18

Mapother v. Dep 7 of Justice,

3 F.3d 1533, 1540 (D.C. Cir. 1993)............................................11

in

Case 1:15-cv-01654-APM Document 14 Filed 04/29/16 Page 5 of 33

Mead Data Cent., Inc. v. Dep 7 of the Air Force,

566 F.2d 242 (D.C. Cir. 1977).............................................19, 23

Milner v. Dep 7 of the Navy,

562 U.S. 562 (2011)...........................................................8

Morleyv. C.I.A.,

508 F.3d 1108 (D.C. Cir. 2007)................................................11

Nat 1 Ass ’n of Home Builders v. Norton,

309 F.3d 26, 32 (D.C. Cir. 2002)..............................................8

Nation Magazine, Washington Bureau v. U.S. Customs Serv.,

71 F.3d 885 (D.C. Cir. 1995)..............................................12, 16

North v. Walsh,

881 F.2d 1088 (D.C. Cir. 1989)................................................11

Pacific Fisheries Inc. v. United States,

593 F.3d 1143 (9th Cir. 2008).................................................23

Prison Legal News v. Samuels,

787 F.3d 1142 (D.C. Cir. 2015)................................................12

Rose v. Dep 7 of Air Force,

495 F.2d 261 (2d Cir. 1974)...................................................7

Senate of Puerto Rico v. Dep’t of Justice,

823 F.2d 574 (D.C. Cir. 1987).................................................20

Sussman v. U.S. Marshals Serv.,

494 F.3d 1106 (D.C. Cir. 2007)................................................12

Tipograph v. Dep 7 of Justice,

83 F. Supp. 3d 234, 238 (D.D.C. 2015).........................................9

United States v. Easton,

71 M.J. 168 (C.A.A.F. 2012)...................................................14

United States v. Landano,

508 U.S. 165 (1993)...........................................................12

*United States v. Stoltz,

720 F.3d 1127 (9th Cir. 2013)...........................................3, 10, 14

United States v. Walking Crow,

560 F.2d 386 (8th Cir. 1977)..................................................14

IV

Case 1:15-cv-01654-APM Document 14 Filed 04/29/16 Page 6 of 33

Vaughn v. Rosen,

484 F.2d 820 (D.C. Cir. 1973).................................................11

Vymetalik v. F. B. I.,

785 F.2d 1090 (D.C. Cir. 1986)................................................11

Wilderness Soc. v. Dep’t of the Interior,

344 F. Supp. 2d 1 (D.D.C. 2004)...............................................19

Wolfv. C.I.A.,

473 F.3d 370 (D.C. Cir. 2007).................................................9

Statutes

U.S. Const. amend.V............................................................3, 14

5 U.S.C. § 522.................................................................passim

18U.S.C. §641......................................................................14

18 U.S.C. § 793....................................................................14

18 U.S.C. § 1030...................................................................14

Other Authorities

Exec. Order No. E9-1773, 74 Fed. Reg. 15 (Jan. 26, 2009)..........................8

Charlie Savage and Emmarie Fluetteman, Manning Sentenced to 35 Years

for a Pivotal Leak of U.S. Files, New York Times (Aug. 21, 2013)................1

Charlie Savage, Manning is Acquitted of Aiding the Enemy, New York

Times (Jul. 30, 2013)......................................................4, 14

Chelsea Manning’s Trial, The Freedom of the Press Foundation,

https://freedom.press/chelsea-manning-transcripts..............................21

Leaking Classified Information, CNN (Jul. 6, 2010)

http://www.cnn.com/2010/WQRLD/meast/07/06/iraq.soldier.leak.

charge/.........................................................................3

Los Angeles Times (Aug. 21,2013),

http://articles.latimes.com/2013/aug/21 /nation/la-na-nn-wikileaks-
bradlev-manning-sentenced-201308201.............................................4

v

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WikiLeaks Case, CBS News (Feb. 28, 2013),

http://www.cbsnews.com/news/iudge-accepts-mannings-guiltv-pleas-
in-wikileaks-case/............................................................4

vi

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Plaintiff Chelsea Manning, through counsel, respectfully moves this Court for
summary judgment in her favor and responds in opposition to the United States’ Motion
for Summary Judgment. The Federal Bureau of Investigation (FBI) has failed as a matter
of law to meet its burden to justify its complete and categorical withholding of the records
responsive to Ms. Manning’s 2014 request for information made pursuant to the Freedom
of Information Act (FOIA), 5 U.S.C. § 552. Ms. Manning respectfully requests that the
Court order the FBI to release those non-exempt portions of the responsive records.

I. INTRODUCTION

Ms. Manning is currently serving a thirty-five-year sentence in the military prison at
Fort Leavenworth, Kansas, for disclosing classified and sensitive information to the not-
for-profit journalistic organization, Wikileaks, in 2010. See Charlie Savage and Emmarie
Huetteman, Manning Sentenced to 35 Years for a Pivotal Leak ofU.S. Files, New York
Times (Aug. 21,2013), http://www.nvtimes.com/2013/08/22/us/manning-sentenced-for-
leaking-government-secrets.html? r=0. attached hereto as Ex. 1. Her sentence is the result
of a court martial by the U.S. Army and conviction in 2013. Id. It was during the course of
serving her time that Ms. Manning sought information regarding the FBI’s investigation of
her role in these same disclosures. See Docs. 12-2 and 12-4.

In February 2014, Ms. Manning requested that the FBI provide her with two
categories of documents pursuant to FOIA: 1) relating to “the alleged disclosures of
classified and sensitive by [sic] unclassified information by then-Private First Class (PFC)
Bradley Edward Manning (a.k.a Chelsea Elizabeth Manning);” and 2) “suspected or
alleged civilian co-conspirators of the disclosures alleged to have been conducted by
Manning.” Doc. 12-2. The FBI denied her request in full on the purported ground that the

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records were law enforcement records “located in an investigative file which is exempt
from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A).” Doc. 12-7 at 2. Exemption (7)(A),
however, does not exempt information from disclosure simply by virtue of the fact that the
information is located in an investigative file; such “blanket” exemptions are invalid as a
matter of law. Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 66 (D.C.
Cir. 1986) (explaining that amendments to Exemption (7)(A) were meant to eliminate
“blanket” exemptions, or exemptions “claimed for all records in a file simply because they
are in the file”).

Now, the FBI seeks to justify its decision to withhold all records in the relevant
investigative file on the basis of a declaration submitted by David M. Elardy, the Section
Chief of the FBI’s Record/Information Dissemination Section, Records Management
Division in Winchester, Virginia. Doc. 12-1, at 1 (Hardy Declaration). Mr. Hardy asserts
that all records Ms. Manning is seeking are exempt, in full, as law enforcement records,
the disclosure of which would interfere with “with ongoing law enforcement
investigations and proceedings.” Id. 38. The Declaration makes clear, however, that the
FBI has skirted its statutory obligations by creating “functional categories” to include
every conceivable document in an investigative file so as to, in practice, create a
prohibited “blanket” exemption.

The FBI does not indicate whether Ms. Manning remains a subject of the
“ongoing” investigation and similarly does not disclose the identities of any other subjects
of the investigation. See Hardy Deck ]j 34 n.9. However, and to the extent that any of the
records concern only Ms. Manning, they cannot be exempt because she cannot be the
subject of an ongoing investigation or reasonably anticipated prosecution. The prosecution

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of Ms. Manning has concluded in an Army court martial, and any subsequent civilian
proceeding would violate her protection against double jeopardy under the Fifth
Amendment to the Constitution. United States v. Stoltz, 720 F.3d 1127, 1128 (9th Cir.

2013) (“It is .. . well settled that a general or special court-martial conviction precludes a
subsequent civilian criminal conviction for the same offense.”) (citing Grafton v. United
States, 206 U.S. 333, 345-48 (1907)). The FBI’s categorical and complete withholding of
records relating to Ms. Manning disregards the temporal nature of Exemption 7(A), which
cannot serve to protect records that concern parts of a law enforcement proceeding that
have already concluded. Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t
of Justice, 746 F.3d 1082, 1097 (D.C. Cir. 2014). Rather those materials are undoubtedly
segregable, at least in part, from whatever portion of the investigation remains ongoing.
However, the FBI’s declaration fails on its face to demonstrate that it disclosed any
segregable material in otherwise exempt documents or categories thereof.

The FBI’s failure to provide anything more than vague and conclusory assertions
regarding the investigative file involving Ms. Manning and its purported complete non-
segregability cannot serve as the basis for summary judgment in its favor.

II. STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO
GENUINE ISSUE

1. In 2010, the United States Army charged Ms. Manning, then known as Private
First Class Bradley E. Manning, with various violations of the Uniform Code of Military
Justice and the United States Code for allegedly disclosing classified and confidential
information to the media organization, WikiLeaks. U.S. Soldier Charged with Leaking
Classified Information, CNN (Jul. 6, 2010)

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http://www.can.com/2010/WQRLD/meast/07/06/iraq.soldier.feak.charge/, attached hereto
as Ex. 2.

2. Ms. Manning pled guilty to some of the charges in February 2013. Judge Accepts
Manning’s Guilty Pleas in WikiLeaks Case, CBS News (Feb. 28, 2013),
http://www.cbsnews.com/news/iudge-accepts-mannings-guiltv-pleas-in-wikileaks-case/,
attached hereto as Ex. 3, and proceeded to trial on the remaining charges that summer.
Charlie Savage, Manning is Acquitted of Aiding the Enemy, New York Times, (Jul. 30,

2013), http://www.nvtimes.com/2013/07/31/us/bradlev-manning-verdict.html. attached
hereto as Ex. 4.

3. At trial Ms. Manning was acquitted of aiding the enemy, but convicted of charges
related to espionage, theft, and computer fraud under the United States Code, as well as
various other military-related offenses. Id.; Manning General Court-Martial Order No. 4
(Apr. 10, 2014), attached hereto as Ex. 5 (listing findings regarding each of the charges
against Ms. Manning).

4. In August 2013, a military judge sentenced her to thirty-five years of imprisonment
and a dishonorable discharge from the Army. Richard A. Serrano, WikiLeaks Trial:
Bradley Manning Sentenced to 35 Years in Prison, Los Angeles Times (Aug. 21,2013),
http://articles.latimes.com/2013/aug/21 /nation/la-na-nn-wikileaks-bradlev-manning-
sentenced-20130820, attached hereto as Ex. 6. She is currently serving her sentence at the
Fort Leavenworth Disciplinary Barracks in Fort Leavenworth, Kansas.

5. The conduct that formed the basis of Ms. Manning’s conviction and sentence also
formed the basis of the FBI’s criminal investigation. See Hardy Deck If 37 (describing the

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“ongoing investigation into the unauthorized disclosure of classified information that
subsequently was published on the WikiLeaks website.”).

6. On February 20, 2014, Ms. Manning submitted a FOIA request to the FBI seeking:

a. Documents, papers, reports, letters, memoranda, films,
electronic data, photographs, audio and video recordings of or
relating to investigation conduction by the Washington Field Office
of the Federal Bureau of Investigation and the U.S. Attorney’s
Office of the Eastern District of Virginia into the alleged
disclosures of classified and sensitive but unclassified information
by Private First Class (PFC) Bradley E. Manning beginning in late
2010 and continuing until an unknown date, but as late as mid-
2012.

b. Any other documents, papers, reports, letters, memoranda, films,
electronic data, photographs, audio and video recordings of or relating to
the investigation conducted by the Federal Bureau of Investigation and the
U.S. Attorney’s Office of the Eastern District of Virginia into alleged
civilian co-conspirators of the disclosures of information by Manning.

Doc. 12-2.

7. On March 7, 2014, the FBI acknowledged Ms. Manning’s request and notified her
that the request “did not contain sufficient information to conduct an accurate search of the
Central Records System.” Doc. 12-3 at 2.

8. On March 18, 2014, Ms. Manning supplemented her request with the additional
information and modified her request so that it read:

a. Documents, papers, reports, letters, memoranda, films,
electronic data, photographs, audio and video recordings of or
relating to investigation conduction by the Washington Field Office
(WFO), the Department of Justice Counterepionage [sic] Section
(CES), the U.S. Attorney’s Office of the Eastern District of Virginia
(E.D.Va.) into the alleged disclosures of classified and sensitive by
[sic] unclassified information by then-Private First Class (PFC)

Bradley Edward Manning (a.k.a Chelsea Elizabeth Manning).

b. Any other documents, papers, reports, letters, memoranda, films,
electronic data, photographs, audio and video recordings of or relating to
the investigation conducted by the Federal Bureau of Investigation and

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other agencies into suspected or alleged civilian co-conspirators of the
disclosures alleged to have been conducted by Manning.

Doc. 12-4 at 3.

9. On April 8, 2014, the FBI performed a search only for the records identified in part
(a) of Ms. Manning’s request and used search terms that included a “six-way phonetic
breakdown” of her name, her date and place of birth, Ms. Manning’s description of the
investigation, and the file number Ms. Manning provided. Hardy Deck f 30.

10. The FBI did not conduct a second search “for records responsive to the second
part” of Ms. Manning’s request because the FBI was aware, based on experience from a
separate case, that those records “were maintained in the same files” as those records
concerning Ms. Manning. Id. at f32.

11. The FBI located “potentially responsive” records to Ms. Manning’s request. Id.

30. However, the FBI does not indicate the number of located records.

12. On the same day that it searched for records responsive to Ms. Manning’s request,
April 8, 2014, the FBI uniformly and categorically denied Ms. Manning’s request. Doc.

12-7; see also Doc. 12 at 4. The FBI justified its categorical denial by explaining that the
“material [Plaintiff] requested is located in an investigative file which is exempt from
disclosure pursuant to 5 U.S.C. § 552(b)(7)(A).” Doc. 12-7 at 2; see also Hardy Deck ^

11.

13. Although the FBI has not provided any evidence regarding the nature of its
“segregability review,” the agency purports to have “determined that there is no
reasonably segregable information, including public source materials, which can be
released at this time without adversely affecting the investigation and any resulting
prosecutions.” Hardy Deck f 49.

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14. Ms. Manning appealed the agency’s denial of her request for records to the
Department of Justice (DOJ) Office of Information Policy (OIP). See Doc. 12-10 at 2. On
May 7, 2014, the OIP acknowledged receipt of her appeal. Id.

15. On August 7, 2014, the OIP affirmed and reiterated the FBI’s categorical denial of

Ms. Manning’s request for records and denied her appeal, reasoning that the:

FBI properly withheld this information in full because it is protected from
disclosure under the FOIA pursuant to 5 U.S.C. § 552(b)(7)(A). This
provision concerns records or information compiled for law enforcement
purposes the release of which could reasonably be expected to interfere
with enforcement proceedings.

Doc. 12-12 at 2 (emphasis added).

16. On January 5, 2015, Ms. Manning sought the assistance of the Office of
Government Information Services (OGIS) and asked the agency to “mediate and resolve
the dispute between [Plaintiff] and the Attorney General regarding [Plaintiffs] Freedom
of Information Act (FOIA) 5 U.S.C. § 552) [sic] request[.]” Doc. 12-13.

17. The OGIS responded to Ms. Manning’s request for mediation by repeating the
FBI’s categorical and purported grounds for denial of her request and stating that
“Exemption 7(A) [was] still applicable to records sought at the time of the appeal.” Doc.
12-15 at 3.

III. ARGUMENT

The purpose of FOIA is to “pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny[.]” Dep’t of Air Force v. Rose, 425 U.S. 352,
361 (1976) (quoting Rose v. Dep’t of Air Force, 495 F.2d 261, 263 (2d Cir. 1974), aff’d,
425 U.S. 352). The Act therefore requires that federal agencies make their records
available to the public for copying and inspection. 5 U.S.C. § 552. And “[although

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Congress enumerated nine exemptions from the disclosure requirement, these limited
exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant
objective of the Act.” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 5
(D.C. Cir. 2011) (quoting Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C.
Cir. 2002) (internal quotation marks omitted)). Consequently, and “[a]t all times[,] courts
must bear in mind that FOIA mandates a strong presumption in favor of disclosure.” Id.
(quoting Nat 7 Ass ’n of Home Builders v. Norton, 309 F.3d 26, 32) (internal quotation
mark omitted) (second alteration in original); see also Exec. Order No. E9-1773, 74 Fed.
Reg. 15 (Jan. 26, 2009) (“All agencies should adopt a presumption in favor of disclosure,
in order to renew their commitment to the principles embodied in FOIA, and to usher in a
new era of open Government. The presumption of disclosure should be applied to all
decisions involving FOIA.”). The Supreme Court has “often noted the Act’s goal of broad
disclosure and insisted that the exemptions be given a narrow compass.” Milner v. Dep’t
of the Navy, 562 U.S. 562, 571 (2011) (internal quotation marks omitted); see also FBIv.
Abramson, 456 U.S. 615, 630 (1982) (“FOIA exemptions are to be narrowly construed.”).
In this case, however, the FBI has operated from a presumption of blanket nondisclosure,
purportedly justified by 5 U.S.C. § 552(b)(7)(A), and attempted to retroactively defend its
position. See Hardy Deck ^ 44 (explaining that “[wjhen the FBI receives a request for
records about a pending investigation, it commonly asserts FOIA Exemption 7(A) to
protect the pending investigation and/or any related prospective investigations and
prosecutions.”).

Pursuant to FOIA’s underlying policy, the “agency withholding responsive
documents from a FOIA release bears the burden of proving the applicability of claimed

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exemptions.” Am. Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C.
Cir. 2011). Upon a showing that requested records are exempt, the agency must still
affirmatively demonstrate that it has disclosed “[a]ny reasonably segregable portion of a
record” to “any person requesting such record after deletion of the portions which are
exempt” from disclosure. 5 U.S.C. § 552(b).

The agency can meet its burden through “agency affidavits if they contain
reasonable specificity of detail rather than merely conclusory statements, and if they are
not called into question by contradictory evidence in the record or by evidence of agency
bad faith.” Consumer Fed’n of Am. v. Dep’t ofAgric., 455 F.3d 283, 287 (D.C. Cir. 2006)
(quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)). “The government cannot
satisfy its burden with affidavits that are vague or conclusory, or merely parrot the
statutory standard.” Tipograph v. Dep’t of Justice, 83 F. Supp. 3d 234, 238 (D.D.C. 2015).
“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it
appears ‘logical’ or ‘plausible.’ ” Judicial Watch, Inc. v. U.S. Dep’t of Def, 715 F.3d 937,
941 (D.C. Cir. 2013) (quoting Aw. Civil Liberties Union, 628 F.3d at 619). And while the
Court affords those declarations substantial weight, it reviews the agency decisions de
novo. Wolf v. C.I.A., 473 F.3d 370, 374 (D.C. Cir. 2007). As discussed below, the FBI’s
declaration is both vague and conclusory and consequently fails to justify the agency’s
actions.

a. The FBI has failed to meet its burden to justify its complete and
categorical withholding of records.

The FBI, through the Hardy Declaration, fails to meet its burden for two reasons.
First, the Declaration does not demonstrate that the entirety of the requested records
“relat[e] to a concrete prospective law enforcement proceeding,” as required to justify its

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nondisclosure. Juarez v. Dep’t of Justice, 518 F.3d 54, 58 (D.C. Cir. 2008) (quoting Bevis
v. Dep’t of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986)). No law enforcement proceeding
can be related to Ms. Manning, because she has already been prosecuted for the conduct
that forms the basis of the government’s investigative file. Hardy Decl. U 39 (describing
the inception of the investigation of the “unauthorized disclosure of classified information
that was published on the WikiLeaks website”); see also Manning General Court-Martial
Order No. 4 (Ex. 5) (describing the charges against Ms. Manning arising out of her
disclosures to WikiLeaks); see also Stoltz, 720 F.3d at 1128 (a court martial conviction
precludes subsequent civilian prosecution of same offense).

Second, the FBI has failed to articulate why or how it reached the conclusion that
the responsive records contain “no segregable, non-exempt portions that may be released
to Manning.” Def. Motion at 15. As a consequence, the FBI has failed to provide the
Court with the evidence necessary to determine whether any segregable materials exist.

b. FBI Declaration Fails to demonstrate that the Responsive Records
Relate to a Concrete Prospective Law Enforcement Proceeding, as
required by § 552(b)(7)(A).

Exemption (7)(A) exempts from compelled disclosure those “records or
information compiled for law enforcement purposes, but only to the extent that the
production of such law enforcement records or information [] could reasonably be
expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The
government may not rely on this exemption to shield a document from disclosure simply
because it is in an investigative file. Campbell v. Dep’t of Health & Human Servs., 682
F.2d 256, 263 (D.C. Cir. 1982) (an agency is not authorized “to refuse to disclose any
record compiled in anticipation of enforcement action merely because the record has

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found its way into an investigative file.”). Such “blanket” exemptions are invalid as a
matter of law. Crooker, 789 F.2d at 66. Similarly, “FBI records are not law enforcement
records [under FOIA] simply by virtue of the function that the FBI serves.” King v. U.S.
Dep’t of Justice, 830 F.2d 210, 229 (D.C. Cir. 1987) (quoting Vymetalikv. F.B.I., 785
F.2d 1090, 1095 (D.C. Cir. 1986) (alteration in original)).

Instead, the agency must demonstrate both that the records were “compiled for law
enforcement purpose,” and that the public disclosure of those records “could reasonably
be expected to interfere with enforcement proceedings.” 5 U.S.C. § 522(b)(7)(A). “To
justify withholding, the DOJ must therefore demonstrate that disclosure (1) could
reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending
or reasonably anticipated.” Citizens for Responsibility & Ethics in Washington, 746 F.3d
at 1096 (quoting Mapother v. Dep’t of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993)

(internal quotation marks omitted)); see also Juarez, 518 F.3d at 58 (the withheld records
must relate to “a concrete prospective law enforcement proceeding”). By definition, the
disclosure of records “cannot interfere with parts of the enforcement proceeding already
concluded.” North v. Walsh, 881 F.2d 1088, 1100 (D.C. Cir. 1989).

i. The FBI’s use of “Functional Categories” creates a
constructive, and impermissible, blanket exemption.

Even if the records “could be withheld under one of the FOIA exemptions,” the
FBI still has a “duty to identify responsive documents, claim the relevant exemptions” and
“explain its reasoning for withholding the documents in its affidavit.” Morley v. CJ.A.,

508 F.3d 1108, 1120 (D.C. Cir. 2007). Although agencies generally comply with this duty
through a “Vaughn index,” see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), a
“categorical approach to redactions or withholdings is permissible under FOIA when the

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FOIA litigation process threatens to reveal the very information the agency hopes to
protect.” Prison Legal News v. Samuels, 787 F.3d 1142, 1149 (D.C. Cir. 2015) (quoting
Citizens for Responsibility & Ethics in Washington, 746 F.3d at 1088) (internal quotation
marks omitted)). Such is the approach the FBI chose in the present case. Hardy Deck *(J 42.

Although the use of functional categories is sometimes permitted, or even

encouraged, “[t]here are limits [] to when categorical rules may be employed.” Nation

Magazine, Washington Bureau v. US. Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995).

The D.C. Circuit has held that, if an agency

wishes to adopt the generic approach, [an agency] has a three-fold task.
First, it must define its categories functionally. Second, it must conduct a
document-by-document review in order to assign documents to the proper
category. Finally, it must explain to the court how the release of each
category would interfere with enforcement proceedings.

Citizens for Responsibility & Ethics in Washington, 746 F.3d at 1098 (quoting Bevis, 801

F.2d at 1389-90 (alteration in original)). It is not enough for the agency “to simply assert

that disclosure will interfere with enforcement proceedings; ‘it must rather demonstrate

how disclosure’ will do so.” Id. (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106,

1114 (D.C. Cir. 2007)). “Only when the range of circumstances included in the category

characteristically supports] an inference that the statutory requirements for exemption are

satisfied is such a rule appropriate.” Nation Magazine, Washington Bureau, 71 F.3d at 893

(quoting United States v. Landano, 508 U.S. 165, 176-80 (1993) (internal quotation marks

omitted) (second alteration in original)). The FBI’s claimed exempt documents, which are

broken into categories to include every type of record in an investigatory file, including

administrative and perfunctory documents, is no more than an impermissible “blanket”

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exemption.1 See Crooker, 789 F.2d at 66 (reiterating the prohibition against the “blanket
exemption” and the “mandate[e]” that agencies are to “focus upon records, not files.”)
(quoting Campbell, 682 F.2d at 262).

To justify the withholding of records on the basis that their disclosure “could
reasonably be expected to interfere with enforcement proceedings,” 5 U.S.C. §
522(b)(7)(A), the FBI must prove that the records “relat[e] to a concrete prospective law
enforcement proceeding.” Juarez, 518 F.3d at 58 (quoting Bevis, 801 F.2d at 1389). “In
the typical case[,] the requested records relate to a specific individual or entity that is the
subject of the ongoing investigation, making the likelihood of interference readily
apparent.” Citizens for Responsibility & Ethics in Washington, 746 F.3d at 1098. Here,
however, the FBI does not indicate the subject or subjects of its apparently ongoing
investigation and similarly does not indicate whether Ms. Manning herself remains a
subject of the investigation. See Hardy Deck f 34 n.9. In this case, not only is the
likelihood of interference not “readily apparent,” but such an inference cannot be drawn
on the basis of the Hardy Declaration. See Citizens for Responsibility & Ethics in
Washington, 746 F.3d at 1099.

1 The Hardy Declaration identifies the following categories and subcategories: “EC”
documents; FBI Letters; FD-302 Interview Forms; FD-542 Investigative Accomplishment
Forms; FD-794 Payment Requests; memoranda; E-mails; Letterhead Memoranda
(“LHM”); FBI Records Checks; FBI Investigative Reports; FBI Computer Printouts; FBI
Investigative Inserts; Other Investigative Documents; Miscellaneous Administrative
Documents, to include storage envelopes, transmittal forms, routing slips, FD-5A
(Automated Serial Permanent Charge-Out), notes, letters, memoranda, telegrams, other
attachments. Hardy Deck 143. It goes on to list Evidentiary/Investigative Materials,
including the Exchange of Information Between FBI and Other Law Enforcement
Agencies; Documentary Evidence/Information Concerning Documentary Evidence, id,
f46, and then finally describes Administrative Materials, including Reporting
Communications, and Miscellaneous Administrative Documents, id. f 47, and
Administrative Instructions. Id. 148. This exhaustive list of categories does little more
than to identify every possible record that could be included in an investigative file.

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ii. Because Ms. Manning has already been tried and convicted by
the U.S. Army, there can be no pending or prospective law
enforcement proceedings her.

Among the relevant facts the FBI failed to include in its statement of undisputed
facts is that Ms. Manning has not only already been investigated by the United States for
her alleged role in the disclosures that form the basis of the FBI’s investigation, but she
has also been prosecuted and convicted by the U.S. Army for her role in those disclosures.
Doc. 12-16 (omitting information of Ms. Manning’s military conviction); see also
Manning General Court-Martial Order No. 4 (Ex. 5); see also Savage, Manning is
Acquitted of Aiding the Enemy (Ex. 7).

Because the Army general court-martial and the FBI investigation arose from the
same conduct, any attempt to prosecute Ms. Manning in federal criminal court would
violate her double jeopardy rights. See Stoltz, 720 F.3d at 1128 (a court-martial conviction
“precludes a subsequent civilian criminal conviction for the same offense.”); United States
v. Walking Crow, 560 F.2d 386, 388 (8th Cir. 1977) (“Nor can a person be prosecuted in a
federal territorial court after he has been prosecuted for the same crime in a federal
military court.”); see also United States v. Easton, 71 M.J. 168, 170 (C.A.A.F. 2012) (“the
protection against double jeopardy under the Fifth Amendment applies in the military
context”). Therefore, and although the Hardy Declaration does not illuminate the subject
of the FBI’s investigation, Ms. Manning cannot be the subject of the FBI’s investigation
for any prospective law enforcement proceeding.2

Ms. Manning was already tried and convicted at a court-martial of violating every
conceivable federal offense arising from the disclosure, including 18 U.S.C. § 793
(espionage) 18 U.S.C. § 1030(a)(1) (hacking), and 18 U.S.C. § 641 (theft of government
property). The United States could not possibly charge Ms. Manning with any other crime.
In short, the prosecution of Ms. Manning is over.

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As a consequence, to the extent that any materials pertaining only to Ms. Manning
might have, at one time prior to her military judgment, been exempt under Section
(b)(7)(a), that is no longer so. See Citizens for Responsibility & Ethics in Washington, 746
F.3d at 1097 (“Exemption 7(A) is temporal in nature” and an agency’s reliance on the
exemption “may become outdated when the proceeding at issue comes to a close.”). That
Ms. Manning is currently serving her sentence for the conduct that forms of the basis of
the FBI’s investigation demonstrates the essence of Exemption (7)(A)’s “temporal”
nature.

iii. The Court Cannot Infer, on the Basis of the FBI’s Vague
Declaration, that Materials Relating only to Ms. Manning
would interfere with any other “Resulting Prosecutions.”

The Court cannot, on the basis of the FBI’s Declaration, draw the conclusion that
the withheld records are connected to, or would interfere with, the investigation of others,
apart from Ms. Manning. See Citizens for Responsibility & Ethics in Washington, 746
F.3d at 1099. The D.C. Circuit recently considered and rejected the FBI’s complete and
categorical nondisclosure under similar circumstances to those here in Citizens for
Responsibility & Ethics in Washington, 746 F.3d 1082. In that case, Citizens for
Responsibility and Ethics in Washington (CREW) requested the FBI’s records relating to
the investigation of former House Speaker Tom Delay. Id. at 118. The FBI had
investigated the former Speaker in a public corruption investigation centered on Jack
Abramoff and some of the Speaker’s top aides. Id. CREW made its request after it became
clear that the FBI would not bring criminal charges against Delay. Id. The FBI, however,
categorically and completely withheld the records responsive to CREW’s request on the

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basis that they were exempt law enforcement records under 5 U.S.C. § 552(b)(7)(A),
among other grounds. Id.

Through a declaration by David Hardy, the FBI asserted that, in the context of a
“wide-ranging” public corruption investigation, “the release of the requested records could
disclose to individuals under investigation the identities of potential witnesses, the content
of the government’s evidence and trial strategy and the focus of the investigation.” Id. at
1099. The court, however, rejected the FBI’s justification on the ground that the records
related to Delay, who had already been told he would not be charged and was therefore
not under investigation. Id. at 1099. The court then considered the FBI’s assertion that the
release of the requested records would interfere with “all related criminal prosecutions,”
see id., and held that “assuming some individuals do remain under investigation, the
relevant question is whether any of the responsive records, which are primarily about
Delay, would disclose anything relevant to the investigation of those individuals.” Id.
(emphasis in original). The Court held that “without more information about the degree of
overlap,” it could not “say that the circumstances characteristically support an inference
that disclosure would interfere with any pending enforcement proceeding.” Id. (quoting
Nation Magazine, Washington Bureau, 71 F.3d at 893 (internal quotation marks omitted)).
The circuit court held that the “DOJ [had] not met its burden to warrant categorical
withholding” and reversed the district court’s summary judgment ruling. Citizens for
Responsibility & Ethics in Washington, 746 F.3d at 1099 and 1101.

The same conclusion applies to the present case. Most importantly, just as Speaker
Delay was not subject to investigation or prosecution at the time of the FBI’s claimed
exemption, neither can Ms. Manning presently be under investigation or the subject of

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prospective prosecution because she was already subject to an Army court martial and
convicted. And just as in Citizens for Responsibility & Ethics in Washington, in which the
responsive records related to Delay, in this case the FBI only searched for records
including Ms. Manning’s name, birthdate, or other identifier. Hardy Decl. 30-33. The
FBI did not search for records related to other individuals who may have been involved in
the disclosures. See id. Similarly, just as the FBI in Citizens for Responsibility & Ethics in
Washington, did not identify the subject of any prospective proceedings and instead
asserted that the disclosure of the Delay materials would interfere with “related criminal
prosecutions,” in this case the FBI has used similarly vague justifications that disclosure
would interfere with “any resulting prosecutions.” See Hardy Decl. at 34, 41, 44, 46(a),
46(c), 47(b), 49; see also id. % 34 n.9 (“FBI has acknowledged that it is investigating
whether anyone else was involved with plaintiff in the unauthorized disclosures of
classified information made to WikiLeaks, the FBI has not and is not confirming or
denying whether it is investigating any particular person.”). Again, the FBI is attempting
to skirt FOIA by acting exactly as it did in Citizens for Responsibility & Ethics in
Washington. Such vague descriptors of potential or eventual prosecutions cannot justify
the FBI’s categorical withholding of records relating to Ms. Manning.

It is for this same reason - that Ms. Manning sought records relating to the FBI’s
investigation of her - that the DOJ’s reliance on Elec. Privacy Info. Ctr. v. Dep ’t of Justice
Criminal Div., 82 F. Supp. 3d 307 (D.D.C. 2015) (hereinafter “EPIC"), fails. Throughout
its brief and in the Hardy Declaration, the FBI argues that the documents relating to the
“WikiLeaks investigation” are exempt under subpart (7)(A) and appears to argue that
those are the same documents at issue here. See Def. Motion at 7, 11, 16. However, EPIC

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did not hold that all documents pertaining to the investigation of Wikileaks are exempt
and is distinguishable on the basis of the records requested. There, the Electronic Privacy
Information Center (EPIC) sought

1. All records regarding any individuals targeted for surveillance for
support for or interest in WikiLeaks;

2. All records regarding lists of names of individuals who have
demonstrated support for or interest in WikiLeaks;

3. All records of any agency communications with Internet and social
media companies including, but not limited to Facebook and Google,
regarding lists of individuals who have demonstrated, through advocacy or
other means, support for or interest in WikiLeaks; and

4. All records of any agency communications with financial services
companies including, but not limited to Visa, MasterCard, and PayPal,
regarding lists of individuals who have demonstrated, through monetary
donations or other means, support or interest in WikiLeaks.

Id. at 312. EPIC did not request records pertaining to Ms. Manning specifically; instead it

sought records it believed would show that the FBI was targeting Wikileaks’ supporters.

See id. Those are not the records sought here and may very well be exempt for reasons

irrelevant to the case at hand. EPIC in no way held that every record in any investigative

file relating to Wikileaks or Chelsea Manning is exempt from disclosure, as Defendants

repeatedly imply. See Def. Motion at 7, 9, 11.

c. The FBI has failed to meet its burden that it disclosed any reasonably
segregable material.

The FBI’s use of functional categories in its affidavit does not relieve the agency
of its obligation to “release ‘any reasonably segregable portions’ of responsive documents
once [it has] redacted the exempted information.” Barnard v. Dep’t of Homeland Sec., 598
F. Supp. 2d 1, 25 (D.D.C. 2009) (quoting 5 U.S.C. § 552(b)); see also Long v. U.S. Dep’t
of Justice, 450 F. Supp. 2d 42, 76 (D.D.C.), order amended on reconsideration, 457 F.

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Supp. 2d 30 (D.D.C. 2006), amended, 479 F. Supp. 2d 23 (D.D.C. 2007) (the agency
“bears the burden of reviewing plaintiffs’ requests, identifying either specific documents
or functional categories of information that are exempt from disclosure, and disclosing any
reasonably segregable, non-exempt portion of the requested materials.”). “It has long been
the rule in this Circuit that non-exempt portions of a document must be disclosed unless
they are inextricably intertwined with exempt portions.” Wilderness Soc. v. Dep’t of the
Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004) (quoting Mead Data Cent., Inc. v. Dep’t of
the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). The FBI has neither disclosed such
portions nor demonstrated that it analyzed the records to even identify them.

This statutory requirement “is of such great import that this Court has an affirmative
duty to engage in its own segregability analysis, regardless of Plaintiff s pleadings.” Id.

The Court is similarly subject to reversal in the absence of entering a finding on
segregability. Juarez, 518 F.3d at 60 (“Under this Circuit’s law, the district court’s failure
to address segregability in its memorandum opinion is reversible error.”). Defendants’
conclusory declaration of non-segregability, however, does not enable the Court to enter
its mandatory finding and requires a denial of Defendants’ motion. See Mead Data Cent.,
Inc., 566 F.2d at 261; see also Elec. Privacy Info. Ctr. v. Dep’t of Justice, 511 F. Supp. 2d
56, 73 (D.D.C. 2007) (denying the defendant summary judgment where its “failure to
provide meaningful representations regarding segregability as to documents withheld
pursuant to Exemptions 2, 6, 7(A), 7(C), 7(d) and 7(E) - for which redaction, rather than
withholding, is typically the appropriate approach - is particularly glaring.”) (emphasis
added). The evidence and common sense mandate summary judgment in favor of Ms.
Manning.

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i. The FBI fails to establish that it conducted any segregability
review; that any such review occurred is implausible.

In general, compliance with the Act’s segregability mandate takes the form of
redaction. However, in this case, Defendants have not redacted any material and instead
have refused to disclose any document or portion thereof out of the entire investigatory
file. See Blanton v. U.S. Dep’t of Justice, 182 F. Supp. 2d 81, 87 (D.D.C. 2002) (“To
withhold the entirety of a document, the agency must demonstrate that it cannot segregate
the exempt material from the non-exempt and disclose as much as possible.”). The FBI
addresses the issue of segregability only twice and in conclusory terms. It provides neither
the Court nor Ms. Manning with any meaningful representations regarding its
segregability analysis. Mr. Hardy’s Declaration makes the generalized assertion that,
although the FBI “commonly asserts FOIA Exemption 7(A) to protect the pending
investigation and/or any related prospective investigations and prosecutions,” it
“[nonetheless [] reviews the records to identify and release any reasonably segregable
information contained in the responsive file(s) that would not jeopardize ongoing or future
enforcement proceedings.” Hardy Deck *|[ 44. It makes no representation regarding what
the FBI did in this case, except to state its conclusion that “there is no reasonably
segregable information, including public source material, which can be released at this
time without adversely affecting the investigation and any resulting prosecutions.” Id. f
49. The Declaration provides no factual support regarding who analyzed the records to
identify segregable portions or how that person performed the analysis. See id. Such
conclusory assertions are insufficient to sustain the FBI’s burden. See Senate of Puerto
Rico v. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (“[Wjhere no factual support

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is provided for an essential element of the claimed privilege or shield, the label
‘conclusory’ is surely apt.”).3

That the FBI conducted any segregability analysis is hardly plausible as the FBI
apparently conducted its search for records on the same day that it notified Ms. Manning
that the records responsive to her request were completely and categorically exempt from
disclosure. See Hardy Decl. f 30 (explaining that the FBI conducted its Central Records
System search on April 8, 2014); see also Doc. 12-7 (the FBI’s April 8, 2014, letter
informing Ms. Manning that the records responsive to her request were law enforcement
records “located in an investigative file which is exempt from disclosure pursuant to 5
U.S.C. § 552(b)(7)(A)). Such a timeframe does not allow for document-by-document or
line-by-line review of records for segregable portions, as required by law. See, e.g.,
Concepcion v. US. Customs & Border Prot., 907 F. Supp. 2d 133, 144 (D.D.C. 2012),
aff’d sub nom. Concepcion v. U.S. Bureau of Customs & Border Prot., 550 F. App’x 1
(D.C. Cir. 2013) (holding that an agency met its segregability burden when the declarant
testified that she had conducted a line-by-line review of the documents within each

3 , ♦

It defies logic to believe that the FBI file does not contain information that was already
publicly disclosed during Ms. Manning’s court martial. Every aspect of the trial was well
publicized. See, e.g., Transcripts from Chelsea Manning’s Trial, The Freedom of the
Press Foundation, https://freedom.press/chelsea-manning-transcripts (last accessed Apr.
28, 2016) (making transcripts of the trial public in PDF format). Ms. Manning is at a loss
to understand what information could be so sensitive that it warrants categorically
exempting every document in the government’s possession, particularly when Ms.
Manning has already been tried and convicted and the media covered every day of the trial
and sentencing. The FBI alludes to the fact that its file includes public source material, but
states that it is not “available for release because any such disclosure at this point would
adversely affect the FBI’s pending investigation.” Hardy Decl. f 34. Such public source
material cannot “interfere” with pending or prospective proceedings. Rather “[s]uch
information likely having been disclosed and made part of the public record, it is
impossible to see how its disclosure by way of a FOIA request would have any different
effect than did its earlier disclosure during litigation.” Johnson, 118 F. Supp. 3d at 795-96.

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category). Absent any evidence that any person conducted any analysis, the necessary
conclusion is that no such analysis occurred, or, indeed, could have occurred, given that
the Agency completed its search and categorical denial within the same day.

ii. The FBI conflates the functional category analysis with the
segregability analysis.

Similarly, in its brief, the government argued only that the FBI determined that the
materials responsive to Ms. Manning’s request are “exempt in [their] entirety under
Exemption 7(A),” and that, “[a]s a result, there are no segregable, non-exempt portions
that may be released to Manning.” Def. Motion at 15. This circular reasoning is
insufficient as a matter of law to meet the government’s burden of demonstrating that no
materials are segregable. This “blanket assertion of non-segregability is contrary to the
case law requiring that defendants indicate for each document ‘which portions of the
document are disclosable and which are allegedly exempt.’” Gray v. U.S. Army Criminal
Investigation Command, 742 F. Supp. 2d 68, 76 (D.D.C. 2010) (quoting Defenders of
Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 90 (D.D.C. 2009))

By stating in conclusory terms that the FBI determined the functional categories of
materials and that the materials were therefore exempt in their entirety and nonsegregable,
the FBI fatally conflates the 7(A) analysis with the segregability analysis. See Lawyers ’
Comm, for Civil Rights of San Francisco Bay Area v. U.S. Dep’t of the Treasury, No. C
07-2590 PJH, 2008 WL 4482855, at *14 (N.D. Cal. Sept. 30, 2008) {Lawyers). In
Lawyers, a California civil rights group sought records related to the U.S. Treasury’s
Specially Designated Nationals List, a list “of suspected terrorists, drug traffickers, and
other ‘specially designated nationals^]’” Id. at *2. For its part, the U.S. Treasury asserted
that the responsive records “should be withheld in their entirety” under Exemptions 7(A)

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and 7(F) and identified functional categories in its affidavit justifying its nondisclosure. Id.
at *14. Upon so doing, the declarant for the Treasury simply asserted that the Treasury
“determined that there was no reasonably segregable information that could be released.”
Id. Nowhere in the declaration did the declarant “explain[] why segregation [was] not
possible,” and instead, with regard to Exemption 7(A), the Treasury “confus[ed] the issue
of segregability with the categorical application of the exemption.” Id. (emphasis in
original). The court rejected the Treasury’s attempt to apply only the categorical analysis
to justify, not only a category of records, but also every portion of the documents therein.
Id.

The court held that

the inquiry regarding the segregability of exempt and non-exempt material within
the documents themselves is not the same as the inquiry regarding whether a class
of documents may be withheld. In other words, this court could determine that
exemption 7(A) applied categorically to a class of documents, e.g., the delisting
petitions, but Treasury would still be required to demonstrate that the “reasonably
segregable portions” of the documents within that class of documents had been
produced. «See, e.g., [Pacific Fisheries Inc. v. United States, 593 F.3d 1143, 1148-
49 (9th Cir. 2008)]. Treasury further confuses the type of showing that an agency
is generally required to make in order to withhold documents under exemption
7(A) with the issue of segregability.

Id. Such a conflation of concepts cannot support the agency’s duty to “provide a
reasonably detailed justification rather than conclusory statements to support its claim that
the non-exempt material in a document is not reasonably segregable.” Mead Data Cent.,
Inc., 566 F.2d at 261; see also, e.g., Gray, 742 F. Supp. 2d at 76 (holding that the agency’s
statement that “[a]ll records were compiled in the course of an ongoing investigation and
disciplinary action,” and that “[tjherefore none of the materials were segregable,”
constituted a “blanket assertion” and “failed to establish that there are no segregable
portions of the withheld documents.”); see also Goldstein v. Treasury Inspector Gen. for

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Tax Admin.,No. 14-CV-02189 (APM), 2016 WL 1180158, at *9 (D.D.C. Mar. 25, 2016)
(rejecting an agency declaration as the basis for summary judgment where it “largely
parrot[ed] the elements of [the claimed exemption] and stat[ed] without “detailed
justification” but rather in “conclusory” fashion that no responsive documents are
segregable).

The FBI applies precisely the same flawed analysis as the Treasury in Lawyers. It
argues only that the responsive records are “exempt in [their] entirety under Exemption
7(A),” and that, “[a]s a result, there are no segregable, non-exempt portions that may be
released.” Def. Motion at 15. However, as explained in Lawyers, that a category is exempt
does not mean that there are no “segregable portions” of documents within that category.
Id. at *14. And like the Treasury in Lawyers, the FBI has failed to demonstrate that it
conducted a segregability analysis that was separate from its assignment of functional
categories, to identify and disclose those non-exempt portions. See Hardy Decl. ®| 49
(stating only that the agency “carefully reviewed] the responsive records” to determine
that they are “part of and related to a pending investigation” and that they include “no
reasonably segregable information[.]”).

Rather than merely assert that it has identified exempt categories, and that
therefore no segregable materials exists, as the FBI did in this case, the withholding
agencies must demonstrate that, in fact, they conducted a separate segregability analysis
for each document within those categories. See, e.g., Concepcion, 907 F. Supp. 2d at 144
(holding that an agency met its segregability burden when the declarant testified that she
had conducted a line-by-line review of the documents within each category); Barnard v.
Dep’t of Homeland Sec., 598 F. Supp. 2d 1, 25 (D.D.C. 2009) (same); see also, e.g., Gavin

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v. U.S. S.E.C., No. 04-4522 (PAM/JSM), 2005 WL 2739293, at *4-5 (D. Minn. Oct. 24,
2005) (denying the defendant’s motion for summary judgment and holding that, although
the defendant agency “is entitled to withhold documents utilizing the categorical
approach[,] the record fails to assure the Court that the SEC conducted a document-by-
document review for categorization purposes.”); see also Gutman v. U.S. Dep ’1 of Justice,
238 F. Supp. 2d 284, 296 (D.D.C. 2003) (approving the agency’s segregability analysis
where it “evaluated each page of every document for segregability and, after making the
necessary deletions or excisions, released them accordingly”). Ms. Manning, as the “party
requesting information is helpless to counter an agency’s contention that there is no
segregable material within the documents requested that may be disclosed.” Conway v.

U.S. Internal Revenue Serv., 447 F. Supp. 1128, 1134 (D.D.C. 1978). It is for that reason
“the burden is on the agency to justify its non-segregability claim.” Id. The FBI’s assertion
that it “carefully reviewed the responsive records,” Hardy Deck 49, is insufficient as a
matter of law to meet its burden.4

III. CONCLUSION

For the reasons stated above, the FBI has failed to meet its burden under FOIA
both in regard to Exemption 7(a) and segregability. It has failed to demonstrate how,
insofar as responsive records pertain only to Ms. Manning, they can be a part of any
ongoing investigation. Instead, they cannot be, as she has already been tried for the subject

4 The FBI has had ample opportunity to conduct a segregability analysis. This Court
should resist any effort by the FBI to draw out these proceedings by conducting this
review at this late stage. From the moment it received Ms. Manning’s FOIA request the
FBI had no intention of turning over any records - not even a single document or portion
thereof. The most efficient way to resolve this case now, and in a manner that promotes
the purposes of FOIA and the interests of justice, is for the Court to order the immediate
disclosure of non-exempt materials to Ms. Manning on a rolling basis.

25

Case 1:15-cv-01654-APM Document 14 Filed 04/29/16 Page 33 of 33

conduct. Nor has the FBI met its burden to demonstrate that it has analyzed the responsive
documents, one at a time, and disclosed the non-exempt and reasonably segregable
portions. For those reasons, the FBI’s Motion must be denied. Similarly, because the
protections of Exemption 7(a) cannot apply to information that pertains only to Ms.
Manning, summary judgment for Ms. Manning is warranted.

Respectfully submitted,

Freedman Boyd Hollander
Goldberg Urias & Ward P.A

/s/ Nancy Hollander
Nancy Hollander

D.C. Bar No. TX0061
Vincent J. Ward
Amber Fayerberg
20 First Plaza, NW, Suite 700
Albuquerque, NM 87102
(505) 842-9960

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I CERTIFY that on the 29th day of April, 2016,1 filed the foregoing electronically

through the CM/ECF system, which caused the following parties or counsel of record to

be served by electronic means, as more fully reflected on the Notice of Electronic Filing.

/si Nancy Hollander
Nancy Hollander

26

Case 1:15-cv-01654-APM Document 14-1 Filed 04/29/16 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHELSEA MANNING a/k/a
BRADLEY E. MANNING,

Plaintiff,

v.

Case No. l:15-cv-01654-APM

U.S. DEPARTMENT OF JUSTICE and the
FEDERAL BUREAU OF INVESTIGATION,

Defendants.

Exhibit 1

Manning Sentenced to 35 Years for a Pivotal Leak of U.S. Files - The New York Times

Case 1:15-cv-01654-APM Document 14-1 Filed 04/29/16 Page 2 of 6

Page 1 of 5

Stye ¡Nirtir Jjjork Sftmes

http://nyti.ms/14j3KQC

U.S.

Manning Sentenced to 35 Years for a
Pivotal Leak of U.S. Files

By CHARLIE SAVAGE and EMMARIE HUETTEMAN AUG. 21, 2013
FORT MEADE, Md. — A military judge sentenced Pfc. Bradley Manning on
Wednesday to 35 years in prison for providing more than 700,000 government files
to WikiLeaks, a gigantic leak that lifted the veil on American military and diplomatic
activities around the world.

The sentence is the longest ever handed down in a case involving a leak of
United States government information for the purpose of having the information
reported to the public. Private Manning, 25, will be eligible for parole in about seven
years, his lawyer said.

In a two-minute hearing on Wednesday morning, the judge, Col. Denise R. Lind
of the Army, also said that Private Manning would be dishonorably discharged and
reduced in rank from private first class to private, the lowest rank in the military.

She said he would forfeit his pay, but she did not impose a fine.

Before the sentencing, Private Manning sat leaning forward with his hands
folded, whispering to his lawyer, David Coombs. His aunt and two cousins sat quietly
behind him. As Colonel Lind read the sentence, Private Manning stood, showing no
expression. He did not make a statement.

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Page 2 of 5

Manning Sentenced to 35 Years for a Pivotal Leak of U.S. Files - The New York Times

Case 1:15-cv-01654-APM Document 14-1 Filed 04/29/16 Page 3 of 6

The materials that Private Manning gave to WikiLeaks included a video taken
during an American helicopter attack in Baghdad in 2007 in which civilians were
killed, including two journalists. He also gave WikiLeaks some 250,000 diplomatic
cables, dossiers of detainees being imprisoned without trial at Guantanamo Bay,
Cuba, and hundreds of thousands of incident reports from the wars in Iraq and
Afghanistan.

Immediately after the judge left, military guards flanked Private Manning and
hustled him out the front of the courtroom as a half-dozen supporters in the back of
the courtroom called out words of encouragement.

“We’ll keep fighting for you, Bradley,” one shouted. Another said, “You are a
hero.”

Mr. Coombs later told reporters that he would apply for a presidential pardon
next week and read a statement from Private Manning that he said would be
included in his request.

“I only wanted to help people,” Private Manning’s statement said, adding, “If
you deny my request for a pardon, I will serve my time knowing that sometimes you
have to pay a heavy price to live in a free society.”

A White House spokesman said a request would be considered “like any other
application.”

Mr. Coombs also said that he had wept after they left the courtroom and that
Private Manning told him, “It’s O.K.”

Private Manning downloaded the materials from a classified computer network
to which he had access as a low-level Army intelligence analyst while deployed in
Iraq in 2010. The documents he gave to WikiLeaks set off a scramble inside the
government as officials sought to minimize any harm, including protecting
foreigners identified in some documents as having helped American diplomats or the
military. No evidence emerged that anyone was killed because of the leaks.

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Page 3 of 5

Manning Sentenced to 35 Years for a Pivotal Leak of U.S. Files - The New York Times

Case 1:15-cv-01654-APM Document 14-1 Filed 04/29/16 Page 4 of 6

Among other things, the files also exposed the abuse of detainees by Iraqi
officers under the watch of American forces and showed that civilian deaths during
the Iraq war were most likely significantly higher than official estimates.

“It’s outrageous,” one supporter who had been in the courtroom, Laura Watkins,
63, of Alexandria, Va., said of the sentence. “What I’ve seen is a travesty of justice.”

The judge’s decision to impose a 35-year sentence roughly split the difference
between what the prosecution had requested — 60 years — and the 20 years that
Private Manning had exposed himself to before the trial began when he pleaded
guilty to a lesser version of the charges he was facing.

Under the military system, convicts sentenced to more than three decades in
prison are eligible for parole after 10 years, and Private Manning is receiving 1,294
days credit — a little more than three years — for time in custody and for a 112-day
period in which the judge ruled he was mistreated during pretrial confinement. He is
expected to serve his time at the Army prison at Fort Leavenworth, Kan.

There have been only a handful of previous convictions in cases involving leak
accusations, none resulting in a comparably severe sentence.

In 1985, for example, a former Navy intelligence officer, Samuel Morison, was
sentenced to two years for giving classified satellite surveillance photographs to
Jane’s Defense Weekly, making him the first government employee imprisoned for
giving classified information to the press. In 2001, President Bill Clinton pardoned
him.

As part of a surge in leak-related prosecutions under the Obama administration,
Shamai Leibowitz, a former Federal Bureau of Investigation linguist, was sentenced
to 20 months; Thomas Drake, a former National Security Agency official, was
sentenced to a year of probation and community service; and John Kiriakou, a
former Central Intelligence Agency official, received a 30-month sentence.

Steven Aftergood, a government secrecy specialist with the Federation of
American Scientists, said Private Manning’s 35-year sentence reflected how much

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Page 4 of 5

Manning Sentenced to 35 Years for a Pivotal Leak of U.S. Files - The New York Times

Case 1:15-cv-01654-APM Document 14-1 Filed 04/29/16 Page 5 of 6

his case — involving leaks of entire archives, not singular documents or discrete
pieces of information — differed from what had come before it.

“It reflects the gravity of the case and the government’s perception of the
damage that was done,” Mr. Aftergood said. “Among other things, it is also the most
voluminous leak ever, and also the broadest in scope including diplomatic, military
and other records. So it was a qualitatively new kind of leak, and the government
responded aggressively.”

Colonel Lind could have sentenced Private Manning to up to 90 years. She
found him guilty last month of most of the charges against him, including six counts
of violating the Espionage Act, but acquitted him of the most serious charge, aiding
the enemy, which had never before been filed in a leak case. Private Manning’s
sentence must be reviewed by the so-called convening authority, a general who
oversees the Military District of Washington and has the power to reduce the term
but not add to it. The case will then automatically come before the Army Court of
Criminal Appeals.

In seeking a 60-year sentence, prosecutors argued that Private Manning had
betrayed the trust of the government and said they hoped a severe punishment
would discourage future leaks. They also had asked the judge to impose a fine of
$100,000 to repay some of what was spent on efforts to mitigate damage, including
identifying individuals who officials said had been put at risk by the disclosures.

Mr. Coombs argued that Private Manning had leaked the files because he
wanted to start a public debate and bring about change, portraying his client as a
well-intentioned, if naive, whistle-blower.

But Mr. Coombs, seeking leniency, also argued that his client was confused at
the time by stresses, including a crisis over his gender identity while in a combat
zone. He elicited testimony showing that the military played down serious and
recurring signs that Private Manning’s mental health was deteriorating, allowing
him to maintain his access to classified information.

Correction: August 21, 2013

http://www.nytimes.com/2013/08/22/us/manning-sentenced-for-leaking-government-secrets.html?... 4/28/2016

Page 5 of 5

Manning Sentenced to 35 Years for a Pivotal Leak of U.S. Files - The New York Times

Case 1:15-cv-01654-APM Document 14-1 Filed 04/29/16 Page 6 of 6

An earlier version of this article misidentified a person sitting behind Pfc. Bradley

Manning at his sentencing. It was a cousin of Private Manning, not a sister.

A version of this article appears in print on August 22, 2013, on page A1 of the New York edition with the
headline: Manning Sentenced to 35 Years For a Pivotal Leak of U.S. Files.

© 2016 The New York Times Company

http://www.nytimes.com/2013/08/22/us/manning-sentenced-for-leaking-government-secrets.html?...

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Case 1:15-cv-01654-APM Document 14-2 Filed 04/29/16 Page 1 of 3

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHELSEA MANNING a/k/a
BRADLEY E. MANNING,

Plaintiff,

v. Case No. l:15-cv-01654-APM

U.S. DEPARTMENT OF JUSTICE and the
FEDERAL BUREAU OF INVESTIGATION,

Defendants.

Exhibit 2

U.S. soldier charged with leaking classified information - CNN.com Page 1 of 2

Case 1:15-cv-01654-APM Document 14-2 Filed 04/29/16 Page 2 of 3

World » Africa | Americas | Asia | Europe | Middle East

U.S. soldier charged with leaking
classified information

By the CNN Wire Staff

July 6, 2010 1:19 p.m. EDT

U.S. Edition +

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STORY HIGHLIGHTS Baghdad, Iraq (CNN) -- The U.S. military has charged a soldier in

Pfc. Bradley Manning detained 1 raq who is suspected of leaking a helicopter attack video that shows

in Kuwait civilian deaths, the Pentagon said Tuesday.

Manning faces several charges
of illegally transferring classified
information

He is believed to be the soldier
who leaked video of Apache
attack

Pfc. Bradley E. Manning, 22, of Potomac, Maryland, is being
detained in Kuwait and faces charges on eight violations of the U.S.
Criminal Code for allegedly illegally transferring classified data,
according to a charge sheet released by the military.

Attack killed two Reuters
journalists, drew global attention

It accuses Manning of "wrongfully introducing a classified video of a
military operation filmed at or near Baghdad, Iraq, on or about 12
July 2007, onto his personal computer, a non-secure information
system."

The footage shows an Apache helicopter gunship attack that killed a
dozen civilians, including two journalists from the Reuters news
service. Their deaths gained the incident international notoriety.

Reuters photographer Saeed Cmagh survived an initial strafing by
the Apache gunship's 30 mm machine gun, but he apparently died
when the gunship opened fire on people attempting to get him off the
sidewalk where he lay, according to the video.

The aerial footage was posted in April by the Web site WikiLeaks,
which said the video remains classified and "clearly shows the
unprovoked slaying of a wounded Reuters employee and his
rescuers."

WikiLeaks is a site that publishes anonymously submitted
documents, video and other sensitive materials.

The military said it detained Manning, a U.S. Army intelligence
analyst deployed with the 10th Mountain Division's 2nd Brigade, in
June. The website Wired.com identified Manning as the one who had
leaked the video of the helicopter assault.

Wired.com reported that Manning confessed to the leak in a series of
online chats with a former computer hacker. He allegedly owned up
to leaking other items to WikiLeaks, including the classified Army
document assessing the threat level of the website, as well as State
Department cables, according to the article.

Public airing of the video forced the Pentagon to defend the actions
of its troops in a report that concluded the Apache crew had no way
of knowing the Reuters journalists were among suspected insurgents
on the street.

http://www.cnn.com/2010/WORLD/meast/07/06/iraq.soldier.leak.charge/

4/28/2016

U.S. soldier charged with leaking classified information - CNN.com Page 2 of 2

Case 1:15-cv-01654-APM Document 14-2 Filed 04/29/16 Page 3 of 3

Pentagon documents on the investigation
World » Africa | Americas | Asia | Europe | Middle East

The military said Tuesday that it will appoint an officer to preside over
Manning's Article 32 investigation, which is similar to a civilian grand
jury hearing. The military will then decide whether Manning should be
court-martialed.

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4/28/2016

Case 1:15-cv-01654-APM Document 14-3 Filed 04/29/16 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHELSEA MANNING a/k/a
BRADLEY E. MANNING,

Plaintiff,

v.

Case No. l:15-cv-01654-APM

U.S. DEPARTMENT OF JUSTICE and the
FEDERAL BUREAU OF INVESTIGATION,

Defendants.

Exhibit 3

Judge accepts Manning's guilty pleas in WikiLeaks case - CBS News Page 1 of 4

Case 1:15-cv-01654-APM Document 14-3 Filed 04/29/16 Page 2 of 5

CBS News / CBS Evening News / CBS This Morning / 48 Hours / 60 Minutes / Sunday Morning / Face The Nation / CBSN

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Video I US I World I Politics | Entertainment | Health | MoneyWatch | SciTech | Crime | Sports | Photos | More

CBS/AP / February 28,2013,5:44 PM

Judge accepts Manning's
guilty pleas in WikiLeaks

Pfc. Bradley Manning is escorted by military police as he departs the courtroom at Fort Meade, Md., April 25,
2012. / AFP/GETTY IMAGES

Comment / Share / Tweet / Stumble / Email

Updated at 5:52 p.m. ET

fort meade, md. | A U.S. Army judge has accepted an offer by a private to plead
guilty to violating military regulations in the biggest leak of classified material in
U.S. history.

Pfc. Bradley Manning admits to sending hundreds of thousands of Iraq and
Afghanistan battlefield reports, State Department diplomatic cables and other files
to WikiLeaks while working as an intelligence analyst in Baghdad.

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An Army judge accepted the pleas to 10 charges at a hearing Thursday. Manning
could face a maximum of 20 years on those charges alone.

Prosecutors say they plan to move forward with an additional 12 charges against
him, including aiding the enemy. That charge could carry a life sentence.

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Judge accepts Manning's guilty pleas in WikiLeaks case - CBS News Page 2 of 4

Case 1:15-cv-01654-APM Document 14-3 Filed 04/29/16 Page 3 of 5

Earlier, Manning offered to plead guilty Thursday, saying he spilled the secrets to
expose the American military's "bloodlust" in Iraq and Afghanistan.

It was the first time Manning directly admitted leaking the material to the anti-
secrecy website WikiLeaks and detailed the frustrations that led him to do it.

Sitting before a military judge, the slightly built 25-year-old soldier from
Oklahoma read from a 35-page statement through his wire-rimmed glasses for
more than an hour. He spoke quickly and evenly, showing little emotion even
when he described how troubled he was by what he had seen.

"I believed that if the general public, especially the American public, had access to
the information ... this could spark a domestic debate on the role of the military
and our foreign policy in general," Manning said.

Retired Lt. Col. Jeffrey Addicott, a former Army
lawyer, told CBS Radio News that the defense's
move was "pretty gutsy."

"Basically they're saying that they're willing to
plead guilty to some of the offenses, recognizing
that he understands the gravity of what he did,
which will of course have an effect on himself on
the mercy of the panel of the jury in terms of the
sentencing process," said Addicott. "But he's not
pleading guilty to everything, so he's kind of
splitting the baby."

Manning said he didn't think the information would harm the U.S. and he decided
to release it because he was disturbed by the conduct of the wars in Afghanistan
and Iraq and the seeming disregard by American troops for the lives of ordinary
people.

"I felt we were risking so much for people who seemed unwilling to cooperate with
us, leading to frustration and hatred on both sides," he said. "I began to become
depressed at the situation we found ourselves mired in year after year. In
attempting counterinsurgency operations, we became obsessed with capturing and
killing human targets on lists."

He added: "I wanted the public to know that not everyone living in Iraq were
targets to be neutralized."

Manning admitted sending hundreds of thousands of Iraq and Afghanistan
battlefield reports, State Department diplomatic cables, other classified records
and two battlefield video clips to WikiLeaks in 2009 and 2010 while working as an
intelligence analyst in Baghdad.

The battlefield reports were the first documents Manning decided to leak. He said
he sent them to WikiLeaks after contacting The Washington Post and The New
York Times. He said he felt a reporter at the Post didn't take him seriously, and a
message he left for news tips at the Times was not returned.

In a statement, WikiLeaks founder Julian Assange, holed up in the Ecuadorean
Embassy in London to avoid extradition to Sweden to face sex-related charges,
called the Times "cowards."

"The only safe way to get these cowards to publish anything is to get WikiLeaks to
publish it first," Assange said.

Manning said he was appalled by a 2007 combat video of an aerial assault by a
U.S. helicopter that killed 11 men, including a Reuters news photographer and his
driver. The Pentagon concluded the troops mistook the camera equipment for
weapons.

"The most alarming aspect of the video to me was the seemingly delightful
bloodlust the aerial weapons team happened to have," Manning said, adding that

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Case 1:15-cv-01654-APM Document 14-3 Filed 04/29/16 Page 4 of 5

the soldiers' actions "seemed similar to a child torturing ants with a magnifying
glass."

As for the sensitive State Department cables, he said they "documented backdoor
deals and criminality that didn't reflect the so-called leader of the free world."

"I thought these cables were a prime example of the need for a more open
diplomacy," Manning said. "I believed that these cables would not damage the
United States. However, I believed these cables would be embarrassing."

Manning said when he was on leave, he visited his boyfriend in the Boston area
and said he asked him hypothetical questions about how to go about sharing the
information he had. He said his boyfriend didn't really understand what he was
talking about and that their relationship grew distant.

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The Obama administration has said releasing the information threatened valuable
military and diplomatic sources and strained America's relations with other
governments. The administration has aggressively pursued individuals accused of
leaking classified material, and Manning's is the highest-profile case.

Manning has been embraced by some left-leaning activists as a whistle-blowing
hero whose actions exposed war crimes and helped trigger the Middle Eastern
pro-democracy uprisings known as the Arab Spring in 2010.

In his statement, Assange called Manning "America's foremost political prisoner."

"Today's events confirm that," said Assange. "Both the U.N. and the U.S. military
have formally found him to have been mistreated. All those involved in the
persecution of Bradley Manning will find cause to reflect on their actions."

WikiLeaks did not immediately return a text message for comment on Manning's
statement. The group has been careful never to confirm or deny whether he was
the source of the documents it has posted online.

On its Twitter feed Thursday, WikiLeaks called Manning an "alleged source" and
noted that he was detailing "what he says" were his dealings with the online
organization.

© 2013 CBS Interactive Inc. All Rights Reserved. This material may not be published, broadcast,
rewritten, or redistributed. The Associated Press contributed to this report.

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Case 1:15-cv-01654-APM Document 14-3 Filed 04/29/16 Page 5 of 5

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http://www.cbsnews.com/news/judge-accepts-mannings-guilty-pleas-in-wikileaks-case/

4/28/2016

Case 1:15-cv-01654-APM Document 14-4 Filed 04/29/16 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHELSEA MANNING a/k/a
BRADLEY E. MANNING,

Plaintiff,

Case No. l:15-cv-01654-APM

U.S. DEPARTMENT OF JUSTICE and the
FEDERAL BUREAU OF INVESTIGATION,

Defendants.

Exhibit 4

Manning Is Acquitted of Aiding the Enemy - The New York Times

Case 1:15-cv-01654-APM Document 14-4 Filed 04/29/16 Page 2 of 5

Page 1 of 4

£fl)C ;\t'Ut jjork (¿fîmes http://nyti.ms/13s0Sg1

U.S.

Manning Is Acquitted of Aiding the
Enemy

By CHARLIE SAVAGE JULY 30, 2013

FORT MEADE, Md. — A military judge on Tuesday found Pfc. Bradley Manning not
guilty of “aiding the enemy” for his release of hundreds of thousands of military and
diplomatic documents to WikiLeaks for publication on the Internet, rejecting the
government’s unprecedented effort to bring such a charge in a leak case.

But the judge in the court-martial, Col. Denise R. Lind, convicted Private
Manning of six counts of violating the Espionage Act of 1917 and most of the other
crimes he was charged with. He faces a theoretical maximum sentence of 136 years
in prison, although legal experts said the actual term was likely to be much shorter.

While advocates of open government celebrated his acquittal on the most
serious charge, the case still appears destined to stand as a fierce warning to any
government employee who is tempted to make public vast numbers of secret
documents. Private Manning’s actions lifted a veil on American military and
diplomatic activities around the world, and engendered a broad debate over what
information should become public, how the government treats leakers, and what
happens to those who see themselves as whistle-blowers.

“We always hate to see a government employee who was trying to publicize
wrongdoing convicted of a crime, but this case was unusual from the start because of

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the scope of his release,” said Gregg Leslie of the Reporters Committee for Freedom
of the Press, adding, “Whistle-blowers always know they are taking risks, and the
more they reveal the bigger the threat is against them.”

Colonel Lind said she would issue findings later that would explain her ruling on
each of the charges. But she appeared to reject the government’s theory that an
employee who gives information about national security matters to an organization
that publishes it online for the world to see is guilty of aiding the enemy.

The premise of that theory is that the world includes not just ordinary people
who might engage in socially valuable debate, but also enemies like Al Qaeda. Critics
have said that it is not clear how giving information to WikiLeaks is different for
legal purposes from giving it to traditional news organizations that publish online.

Yochai Benkler, a Harvard law professor who testified in Private Manning’s
defense, praised the judge for making an “extremely important decision” that he
portrayed as denying “the prosecution’s effort to launch the most dangerous assault
on investigative journalism and the free press in the area of national security that we
have seen in decades.”

But, he said, the decades of imprisonment that Private Manning could face “is still
too high a price for any democracy to demand of its whistle-blowers.”

The sentencing phase will begin on Wednesday, with more than 20 witnesses
scheduled to appear for both the prosecution and the defense. It could last for weeks;
there are no sentencing guidelines or minimum sentences in the military justice
system. Private Manning’s appeals could go on for years, legal experts said.

Eugene R. Fidell, who teaches military law at Yale Law School, said Private
Manning would not be sentenced to anywhere near the 136-year maximum because
Colonel Lind was likely to collapse some charges so he did not “get punished twice
for the same underlying conduct.”

The case has arisen amid a crackdown by the Obama administration on leaks
and a debate about government secrecy. Private Manning is one of seven people to

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be charged in connection with leaking to the news media during the Obama
administration; during all previous administrations, there were three.

The Justice Department recently won an appeals court ruling forcing James
Risen, a reporter for The New York Times and an author, to testify in the criminal
trial of a former intelligence official accused of being his source. And it has used
aggressive tactics in secretly subpoenaing communications records of reporters for
Fox News and The Associated Press.

Most reporters watched the proceedings from a closed-circuit feed in a filing
center. One who was inside the small courtroom said that Private Manning, 25,
appeared relaxed when he entered the room. But as the hour drew near he grew
more stoic, and he showed no emotion as he stood while Colonel Lind marched
through the litany of charges.

The “aiding the enemy” charge was the first in the list, and she said “not guilty.”
But she quickly moved into a long list of guilty findings for the bulk of the remaining
charges, including six counts of violating the Espionage Act, five of stealing
government property, and one violation of the Computer Fraud and Abuse Act. Each
carries up to a 10-year sentence.

Colonel Lind accepted Private Manning’s guilty pleas on two lesser counts, one
of which involved leaking a video of an American helicopter attack in Baghdad. She
also found him not guilty of leaking in 2009 a video of an airstrike in Afghanistan; he
had admitted leaking it, but said he did so later than the time in the charge.

Steven Aftergood, the director of the project on government secrecy for the
Federation of American Scientists, called Private Manning’s many other convictions
“a weighty verdict that the prosecution would count as a win,” but he argued that the
“larger significance of the case” for open government may be limited, since most
leakers do not disclose entire databases.

Months before the trial, Private Manning confessed to being WikiLeaks’ source
for videos of airstrikes in which civilians were killed; incident reports from the
Afghanistan and Iraq wars; dossiers on detainees at Guantanamo Bay, Cuba; and
about 250,000 diplomatic cables.

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Private Manning also pleaded guilty to a lesser version of the charges against
him, although that was not part of any bargain with prosecutors. The move was
unusual, and it appeared aimed at trying to persuade the judge to view Private
Manning as having taken responsibility for his actions, while recasting the trial as a
test of whether the government had brought excessive charges in the case.

The government elected to press forward with trying to convict Private Manning
of the more serious charges. Prosecutors portrayed him as an “anarchist” and a
“traitor” who recklessly endangered lives out of a desire to “make a splash.” The
defense portrayed him as a young, naïve, but good-intentioned humanist who
wanted to prompt debate and change.

Hours before the verdict, about two dozen supporters of Private Manning
gathered at the main gate to Fort Meade displaying signs with messages like
“whistle-blowers keep us honest.” After the verdict, his supporters announced a
protest rally Tuesday in front of the White House.

But Representatives Mike Rogers of Michigan and C. A. Dutch Ruppersberger of
Maryland, the top Republican and Democrat on the House Intelligence Committee,
praised the verdict.

“Justice has been served today,” they said in a statement. “Pfc. Manning harmed
our national security, violated the public’s trust, and now stands convicted of
multiple serious crimes.”

A version of this article appears in print on July 31,2013, on page A1 of the New York edition with the
headline: Manning Found Not Guilty of Aiding the Enemy.

© 2016 The New York Times Company

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHELSEA MANNING a/k/a
BRADLEY E. MANNING,

Plaintiff,

Case No. l:15-cv-01654-APM

U.S. DEPARTMENT OF JUSTICE and the
FEDERAL BUREAU OF INVESTIGATION,

Defendants.

Exhibit 5

Case 1:15-cv-01654-APM Document 14-5 Filed 04/29/16 Page 2 of 10

DNA processing required. 10 U.S.C. 1565

DEPARTMENT OF THE ARMY
U.S. Army Military District of Washington
Fort Lesley J. McNair, District of Columbia 20319-5031

GENERAL COURT-MARTIAL ORDER
NUMBER 4

10 April 2014

Private First Class Bradley E. Manning, 445-98-9504, U.S. Army, Headquarters and Headquarters
Company, U.S. Army Garrison, Joint Base Myer-Henderson Hall, Fort Myer, Virginia, 22211,
was arraigned at on the following offenses at a General Court-Martial convened by the
Commander, Headquarters, United States Army Military District of Washington.

Charge I: Article 104. Plea: Not Guilty. Finding: Not Guilty.

The Specification: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or
about 27 May 2010, without proper authority, knowingly give intelligence to the enemy, through
indirect means. Plea: Not Guilty. Finding: Not Guilty.

Charge II: Article 134. Plea: Not Guilty. Finding: Guilty.

Specification 1: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near .
Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or
about 27 May 2010, wrongfully and wantonly cause to be published on the internet intelligence
belonging to the United States government, having knowledge that intelligence published on the
internet is accessible to the enemy, such conduct being prejudicial to good order and discipline in
the armed forces and being of a nature to bring discredit upon the armed forces. Plea: Not Guilty.
Finding: Guilty.

Specification 2: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 15 February 2010 and on or
about 5 April 2010, having unauthorized possession of information relating to the national
defense, to wit: a video file named "12 JUL 07 CZ ENGAGEMENT ZONE 30 GC Anyone.avi",
with reason to believe such information could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted, the said information, to a person not entitled to receive
it, in violation of 18 U.S. Code Section 793(e), such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

Plea: Guilty, except words and figures “15 February 2010” and “5 April 2010”, substituting
therefor the words and figures, “14 February 2010” and “21 February 2010”; further excepting the
words, “information relating to the national defense, to wit:”; further excepting the words, “with
reason to believe such information could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted,”, substituting therefor the words, “did willfully
communicate”; further excepting the words and figures, “in violation of 18 U.S. Code Section

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GCMO No. 4, DA, USAMDW, Fort Lesley J. McNair, DC 20319-5031, dated 10 April 2014
(Continued)

793(e)”. Of the excepted words and figures: Not Guilty; of the substituted words and figures:
Guilty. Finding: Guilty, except words and figures “15 February 2010” and “5 April 2010”,
substituting therefor the words and figures “14 February 2010” and “21 Februaty 2010”; further
excepting the words “information relating to the national defense, to wit:”; further excepting the
words “with reason to believe such information could be used to the injury of the United States or
to the advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted,”, substituting therefor the words “did willfully
communicate”; further excepting the words and figures, “in violation of 18 U.S. Code Section
793(e)”. Of the excepted words and figures: Not Guilty; of the substituted words and figures:
Guilty.

Specification 3: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 22 March 2010 and on or
about 26 March 2010, having unauthorized possession of information relating to the national
defense, to wit: more than one classified memorandum produced by a United States government
intelligence agency, with reason to believe such information could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit,
or cause to be communicated, delivered, or transmitted, the said information, to a person not
entitled to receive it, in violation of 18 U.S. Code Section 793(e), such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature to bring discredit upon the
armed forces. Plea: Guilty, except words and figures “22 March 2010” and “26 March 2010”,
substituting therefor the words and figures “17 March 2010” and “22 March 2010”; further
excepting the words “information relating to the national defense, to wit:”; further excepting the
words “with reason to believe such information could be used to the injury of the United States or
to the advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted,”, substituting therefor the words “did willfully
communicate”; further excepting the words and figures “in violation of 18 U.S. Code Section
793(e)”. Of the excepted words and figures: Not Guilty; of the substituted words and figures:
Guilty. Finding: Guilty, except the words and figures “22 March 2010”, substituting therefor the
words and figures “17 March 2010”. Of the excepted words and figures: Not Guilty; of the
substituted words and figures: Guilty.

Specification 4: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or
about 5 January 2010, steal, purloin, or knowingly convert to his use or the use of another, a
record or thing of value of the United States or of a department or agency thereof, to wit: the
Combined Information Data Network Exchange Iraq database containing more than 380,000
records belonging to the United States government, of a value of more than $ 1,000, in violation of
18 U.S. Code Section 641, such conduct being prejudicial to good order and discipline in the
armed forces and being of a nature to bring discredit upon the armed forces. Plea: Not Guilty.

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GCMO No. 4, DA, USAMDW, Fort Lesley J. McNair, DC 20319-5031, dated 10 April 2014
(Continued)

[After pleas but before findings, the Military Judge granted a motion by the Government Counsel
to amend the specification, excepting the words “to wit:” and substituting therefor the words “to
wit: a portion of’.] Finding: Guilty.

Specification 5: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or
about 9 February 2010, having unauthorized possession of information relating to the national
defense, to wit: more than twenty classified records from the Combined Information Data
Network Exchange Iraq database, with reason to believe such information could be used to the
injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted, the said information, to
a person not entitled to receive it, in violation of 18 U.S. Code Section 793(e), such conduct being
prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit
upon the armed forces. [After arraignment but before pleas, the Military Judge granted a motion
by the Government Counsel to amend the charge, adding the words, “and at or near Rockville,
Maryland,” after the word “Iraq”.] Plea: Guilty, except the words and figures “31 December
2009” and “9 February 2010”, substituting therefor the words and figures “5 January 2010” and “3
February 2010”; further excepting the words “information relating to the national defense, to
wit:”; further excepting the words “with reason to believe such information could be used to the
injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted,”, substituting therefor
the words, “did willfully communicate”; further excepting the words and figures “in violation of
18 U.S. Code Section 793(e),”. Of the excepted words and figures: Not Guilty; of the substituted
words and figures: Guilty. Finding: Guilty.

Specification 6: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or
about 8 January 2010, steal, purloin, or knowingly convert to his use or the use of another, a
record or thing of value of the United States or of a department or agency thereof, to wit: the
Combined Information Data Network Exchange Afghanistan database containing more than
90,000 records belonging to the United States government, of a value of more than $1,000, in
violation of 18 U.S. Code Section 641, such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

Plea: Not Guilty. [After pleas but before findings, the Military Judge granted a motion by the
Government Counsel to amend the specification excepting the words, “to wit:” and substituting
therefor the words, “to wit: a portion of’.] Finding: Guilty.

Specification 7: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or
about 9 February 2010, having unauthorized possession of information relating to the national
defense, to wit: more than twenty classified records from the Combined Information Data
Network Exchange Afghanistan database, with reason to believe such information could be used

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GCMO No. 4, DA, US AMD W, Fort Lesley J. McNair, DC 20319-5031, dated 10 April 2014
(Continued)

o the injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted, the said information, to
a person not entitled to receive it, in violation of 18 U.S. Code Section 793(e), such conduct being
prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit
upon the armed forces. [After arraignment but before pleas, the Military Judge granted a motion
by the Government Counsel to amend the charge, adding the words, “and at or near Rockville,
Maryland,” after the word “Iraq”.] Plea: Guilty, except the words and figures, “31 December
2009” and “9 February 2010”, substituting the words and figures “5 January 2010” and “3
February 2010”; further excepting the words “information relating to the national defense, to
wit:”; further excepting the words “with reason to believe such information could be used to the
injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted,”, substituting therefor
the words “did willfully communicate”; further excepting the words and figures “in violation of
18 U.S. Code 793(e),”. Of the excepted words and figures: Not Guilty; of the substituted words
and figures: Guilty. Finding: Guilty.

Specification 8: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, on or about 8 March 2010, steal, purloin, or
knowingly convert to his use or the use of another, a record or thing of value of the United States
or of a department or agency thereof, to wit: a United States Southern Command database
containing more than 700 records belonging to the United States government, of a value of more
than $1,000, in violation of 18 U.S. Code Section 641, such conduct being prejudicial to good
order and discipline in the armed forces and being of a nature to bring discredit upon the armed
forces. Plea: Not Guilty. Finding: Guilty.

Specification 9: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 8 March 2010 and on or about
27 May 2010, having unauthorized possession of information relating to the national defense, to
wit: more than three classified records from a United States Southern Command database, with
reason to believe such information could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted, the said information, to a person not entitled to receive
it, in violation of 18 U.S. Code Section 793(e), such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

Plea: Guilty, except the words and figures, “between on or about 8 March 2010 and on or about
27 May 2010”, substituting therefor the words and figures “on or about 8 March 2010”; further
excepting the words “information relating to the national defense, to wit:”; further excepting the
words “with reason to believe such information could be used to the injury of“ the United States or
to the advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted,”, substituting therefor the words “did willfully
communicate”; further excepting the words and figures “in violation of 18 U.S. Code 793(e)”.

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GCMO No. 4, DA, USAMDW, Fort Lesley J. McNair, DC 20319-5031, dated 10 April 2014
(Continued)

Of the excepted words and figures: Not Guilty; of the substituted words and figures: Guilty.
Finding: Guilty.

Specification 10: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 11 April 2010 and on or about
27 May 2010, having unauthorized possession of information relating to the national defense, to
wit: more than five classified records relating to a military operation in Farah Province,
Afghanistan occurring on or about 4 May 2009, with reason to believe such information could be
used to the injury of the United States or to the advantage of any foreign nation, willfully
communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted, the said
information, to a person not entitled to receive it, in violation of 18 U.S. Code Section 793(e),
such conduct being prejudicial to good order and discipline in the armed forces and being of a
nature to bring discredit upon the armed forces. Plea: Guilty, except the words and figures, “11
April 2010” and “27 May 2010”, substituting therefor the words and figures “10 April 2010” and
“12 April 2010”; further excepting the words “information relating to the national defense, to
wit:”; further excepting the words “with reason to believe such information could be used to the
injury of the United States or to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or transmitted,”, substituting therefor
the words “did willfully communicate”; further excepting the words and figures “in violation of
18 U.S. Code Section 793(e)”. Of the excepted words and figures: Not Guilty; of the substituted
words and figures: Guilty. Finding: Guilty. _

Specification 11: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or
about 8 January 2010, having unauthorized possession of information relating to the national
defense, to wit: a file named "BE22 PAX.zip" containing a video named "Bpp2 PAX.wmv", with
reason to believe such information could be used to the injury of the United Slates or to the
advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted, the said information, to a person not entitled to receive
it, in violation of 18 U.S. Code Section 793(e), such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

Plea: Not Guilty. Finding: Not Guilty. ...........

Specification 12: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 28 March 2010 and on or
about 4 May 2010, steal, purloin, or knowingly convert to his use or the use of another, a record or
thing of value of the United States or of a department or agency thereof, to wit: the Department of
Slate Net-Centric Diplomacy database containing more than 250,000 records belonging to the
United States government, of a value of more than $1,000, in violation of 18 U.S. Code Section
641, such conduct being prejudicial to good order and discipline in the armed forces and being of
a nature to bring discredit upon the armed forces. Plea: Not Guilty, Finding; Guilty.

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GCMO No. 4, DA, USAMDW, Fort Lesley J. McNair, DC 20319-5031, dated 10 April 2014
(Continued)

Specification 13: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 28 March: 2010 and on or
about 27 May 2010, having knowingly exceeded authorized access on a Secret Internet Protocol
Router Network computer, and by means of such conduct having obtained information that has
been determined by the United States government pursuant to an Executive Order or statute to
require protection against unauthorized disclosure for reasons of national defense or foreign
relations, to wit: more than seventy-five classified United States Department of State cables,
willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted
the said information, to a person not entitled to receive it, with reason to believe that such
information so obtained could be used to the injury of the United States, or to the advantage of
any foreign nation, in violation of 18 U.S. Code Section 1030(a)(1), such conduct being
prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit
upon the armed forces. Plea: Guilty, except the words and figures “27 May 2010”, substituting
therefor the words and figures “4 May 2010”; further excepting the words “knowingly exceeded
authorized access”, substituting therefor the words “knowingly accessed”; further excepting the
words “with reason to believe that such information so obtained could be used to the injury of the
United States, or to the advantage of any foreign nation, in violation of 18 U.S. Code Section
1030(a)(1)”. Of the excepted words and figures: Not Guilty; of the substituted words and figures:
Guilty. Finding: Guilty.

Specification 14: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 15 February 2010 and on or
about 18 February 2010, having knowingly exceeded authorized access on a Secret Internet
Protocol Router Network computer, and by means of such conduct having obtained information
that has been determined by the United States government pursuant to an Executive Order or
statute to require protection against unauthorized disclosure for reasons of national defense or
foreign relations, to wit: a classified Department of State cable titled “Reykjavik-13”, willfully
communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted the said
information, to a person not entitled to receive it, with reason to believe that such information so
obtained could be used to the injury of the United States, or to the advantage of any foreign
nation, in violation of 18 U.S. Code Section 1030(a)(1), such conduct being prejudicial to good
order and discipline in the armed forces and being of a nature to bring discredit upon the armed
forces. Plea: Guilty, except the words and figures, “ 15 February 2010” and “18 February 2010”,
substituting therefor the words and figures “14 February 2010” and “15 February 2010”; further
excepting the words “knowingly exceeded authorized access”, substituting therefor the words
“knowingly accessed”; further excepting the words “with reason to believe that such information
so obtained could be used to the injury of the United States, or to the advantage of any foreign
nation, in violation of 18 U.S. Code Section 1030(a)(1)”. Of the excepted words and figures: Not
Guilty; of the substituted words and figures: Guilty. Finding: Guilty, except the words and
figures, “15 February 2010” and “18 February 2010”, substituting therefor the words and figures
“14 February 2010” and “15 February 2010”; further excepting the words “knowingly exceeded
authorized access”, substituting therefor the words “knowingly accessed”; further excepting the

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GCMO No. 4, DA, USAMDW, Fort Lesley J. McNair, DC 20319-5031, dated 10 April 2014
(Continued)

words “with reason to believe that such information so obtained could be used to the injury of the
United States, or to the advantage of any foreign nation, in violation of 18 U.S. Code Section
1030(a)(1)”. Of the excepted words and figures: Not Guilty; of the substituted words and figures:

Specification 15: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 15 February 2010 and on or
about 15 March 2010, having unauthorized possession of information relating to the national
defense, to wit: a classified record produced by a United States Army intelligence organization,
dated 18 March 2008, with reason to believe such information could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit,
or cause to be communicated, delivered, or transmitted, the said information, to a person not
entitled to receive it, in violation of 18 U.S. Code Section 793(e), such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature to bring discredit upon the
armed forces. Plea: Guilty, except the words and figures, “between on or about 15 February 2010
and on or about 15 March 2010”, substituting therefor the words and figures “on or about 8 March
2010”; further excepting the words “information relating to the national defense, to wit:”; further
excepting the words “with reason to believe such information could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit,
or cause to be communicated, delivered, or transmitted,”, substituting therefor the words “did
willfully communicate”; further excepting the words and figures “in violation of 18 U.S. Code
Section 793(e),”. Of the excepted words and figures: Not Guilty; of the substituted words and
figures: Guilty. Finding: Guilty.

Specification 16: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 11 May 2010 and on or about
27 May 2010, steal, purloin, or knowingly convert to his use or the use of another, a record or
thing of value of the United States or of a department or agency thereof, to wit: the United States
Forces - Iraq Microsoft Outlook I SharePoint Exchange Server global address list belonging to the
United States government, of a value of more than $1,000, in violation of 18 U.S. Code Section
641, such conduct being prejudicial to good order and discipline in the armed forces and being of
a nature to bring discredit upon the armed forces. [After please but before findings, the Military
Judge granted a motion by the Government Counsel to amend the specification, excepting the
words, “to wit:” and substituting therefor the words, “to wit: a portion of’.] Plea: Not Guilty.
Finding: Guilty.

Charge III: Article 92. Plea: Guilty. Finding: Guilty.

Specification 1: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or
about 8 March 2010, violate a lawful general regulation, to wit: paragraph 4-5(a)(4), Army

7

Vol 004.282

Case 1:15-cv-01654-APM Document 14-5 Filed 04/29/16 Page 9 of 10

GCMO No. 4, DA, USAMDW, Fort Lesley J. McNair, DC 20319-5031, dated 10 April 2014
(Continued)

Regulation 25-2, dated 24 October 2007, by attempting to bypass network or information system
security mechanisms. Plea: Not Guilty. Finding: Guilty.

Specification 2: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 11 February 2010 and on or
about 3 April 2010, violate a lawful general regulation, to wit: paragraph 4-5(a)(3), Army
Regulation 25-2, dated 24 October 2007, by adding unauthorized software to a Secret Internet
Protocol Router Network computer. Plea: Not Guilty. Finding: Guilty.

Specification 3: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, on or about 4 May 2010, violate a lawful general
regulation, to wit: paragraph 4-5(a)(3), Army Regulation 25-2, dated 24 October 2007, by adding
unauthorized software to a Secret Internet Protocol Router Network computer. Plea: Not Guilty.
Finding: Guilty.

Specification 4: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 11 May 2010 and on or about
27 May 2010, violate a lawful general regulation, to wit: paragraph 4-5(a)(3), Army Regulation
25-2, dated 24 October 2007, by using an information system in a manner other than its intended
purpose. Plea: Not Guilty. Finding: Guilty.

Specification 5: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, on divers occasions between on or about 1
November 2009 and on or about 27 May 2010, violate a lawful general regulation, to wit:
paragraph 7-4, Army Regulation 380-5, dated 29 September 2000, by wrongfully storing
classified information. Plea: Guilty, except the words and figures, “1 November 2009”,
substituting therefor the words and figures, “8 January 2010”. Of the excepted words and figures:
Not Guilty; of the substituted words and figures: Guilty. Finding: Guilty, except the words and
figures, “1 November 2009”, substituting therefor the words and figures, “8 January 2010”. Of
the excepted words and figures: Not Guilty; of the substituted words and figures: Guilty.

SENTENCE

Sentence was adjudged on 21 August 2013: To forfeit all pay and allowances; to be reduced to
Private, E-l; to be confined for 35 years; and to be dishonorably discharged from the service.

ACTION

The sentence is approved and except for that portion of the sentence pertaining to a Dishonorable
Discharge, will be executed. The accused will be credited with 1293 days of confinement against
the sentence to confinement.

8

Vol 004.283

Case 1:15-cv-01654-APM Document 14-5 Filed 04/29/16 Page 10 of 10

GCMO No. 4, DA, USAMDW, Fort Lesley J. McNair, DC 20319-5031, dated 10 April 2014
(Continued)

BY COMMAND OF MAJOR GENERAL JEFFREY S. BUCHANAN:

DISTRIBUTION:

1-Accused
1-MJ (COL Lind)

1-TC (MAJ Fein)

1-DC (MAJ Hurley)

1-CDR, Headquarters and Headquarters Company, U.S. Army, Fort Myer, Virginia 22211

1- CDR, Headquarters Command Battalion, Fort Myer, Virginia 22211

2- CDR, HQ, USAMDW, ATTN: SJA, Fort Myer, Virginia 22211

1-CDR, MDW, ATTN: Command Security Manager, Fort Lesley J. McNair, DC 20319-5013
1-PSC, ATTN: FSO, Military Pay Section, Fort Myer, VA 22211

i-PSC, ATTN: Record Sections, Fort Myer, VA 22211 (for compliance with AR 600-8-104,
Chapter 6) ’

1-SA1C, Washington District CID Officer, Fort Myer, VA 22211

UHQ, U.S. Army Criminal Investigation Command, Russell Knox Building, 27130 Telegraph
Road, Quantico, VA 22134-2253

1-HQ, Department of the Army, Office of the Provost Marshal General, ATTN: MP Division
Operations, 2800 Army Pentagon, Washington, DC 20310-2800
1-Army Corrections Command (DAPM-ACC), 150 Army Pentagon, Washington, DC 20310-
0150

1- Cdr, U.S. Army Enlisted Records and Evaluation Center, ATTN: PCRE-FS, Fort Benjamin
Harrison, IN 46249

10-Clerk of Court, JALS-CCZ, U.S. Army Legal Services Agency, HQDA, 9275 Gunston Road,
Fort Belvoir, VA 22060-5546

2- Department of Veterans Affairs, Regional Office and Insurance Center, 5000 Wissahickon
Ave., Philadelphia, PA 19101

1- U.S. Army Criminal Investigation Laboratory, CODIS Lab, 4930 N. 31st St, Forest Park, GA \
30297-5205

f'Cdr, United States Disciplinary Barracks, 1301 North Warehouse Road, Fort Leavenworth KS
66027

2- Department of Veterans Affairs, Regional Office and Insurance Center, 5000 Wissahickon
Avenue, Post Office Box 8079, Philadelphia, PA 19101

ALAN WEHBÉ
MAJ, JA

Acting Chief, Military Justice

9

Vol 004.284

Case 1:15-cv-01654-APM Document 14-6 Filed 04/29/16 Page 1 of 2

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHELSEA MANNING a/k/a
BRADLEY E. MANNING,

Plaintiff,

v.

Case No. l:15-cv-01654-APM

U.S. DEPARTMENT OF JUSTICE and the
FEDERAL BUREAU OF INVESTIGATION,

Defendants.

Exhibit 6

4/28/2016 Case lilS-cv-OlôŒ^-APM1 : B0OcUmentsî4«@Bd Wie#04y29/lfl8ti "Page 2 of 2

Eos Angeles Simes ARTICLE COLLECTIONS


WikiLeaks trial: Bradley Manning sentenced to 35 years in prison

August 21,2013 | By Richard A. Serrano

FT. MEADE, Md. -- A military judge on Wednesday sentenced Army Pfc. Bradley Manning to 35 years in prison, ending a summer-long court-martial in which
he was convicted of espionage for leaking a vast trove of classified U.S. military and diplomatic materials to the anti-secrecy group WikiLeaks in 2010.

Army Col. Denise Lind, who delivered the sentence, found Manning guilty last month of six counts of violating the Espionage Act and mishandling classified
material, but she acquitted him of a more serious charge of aiding the enemy.

Supporters have hailed Manning as a whistle-blower for revealing government secrets and exposing alleged misdeeds in the wars in Iraq and Afghanistan. They
staged a vigil outside Ft. Meade, where the court-martial was held, and planned to organize an evening rally outside the White House.

Manning faced a maximum sentence of 90 years in prison, hut in the final phase of the trial, prosecutors urged the judge to sentence him to 60 years behind
bars.

PHOTOS: Famous leakers in history

Manning’s lawyers asked the judge to show leniency, suggesting a 25-year term, after he apologized to the court and said he hadn’t intended to hurt anyone.

Manning, 25, likely will be moved to the Army’s central prison in Ft. Leavenworth, Kan. In the months ahead, his attorneys plan to file appeals against his
conviction and petition for his release.

In addition, Maj. Gen. Jeffreys. Buchanan, who heads the Military District of Washington D.C., must approve the judge’s findings in the case. He can reduce the
conviction and the sentence, but he can't increase them.

Military prosecutors, who had sought a life sentence for Manning when the court-martial began on June 3, argued that Manning knew the leaked classified
material would end up on the Internet and be made accessible to A1 Qaeda and other terror organizations. Indeed, some of the data was found on computers
recovered from Osama bin Laden’s hideout in Pakistan after he was killed in May 2011.

They said Manning’s decision to release more than 700,000 war logs, terror detainee assessments, State Department cables and other materials to Wikileaks
harmed U.S. security and put people’s lives at risk. Some of the documents identified informants who had helped U.S. forces.

Defense lawyers said Manning was deeply troubled by materials he saw while serving as an Army intelligence analyst in Iraq in 2010, and that he wanted to warn
the public about abuses in the wars in Iraq and Afghanistan.

After Manning was convicted, however, his lawyers sought leniency from the judge by saying he suffered from “gender identity disorder” and other personal
problems that should have made him unfit for military service.

PHOTOS: 2013's memorable political moments

ALSO:

Jury could soon have Fort Hood shooting case
Tsarnaev's wounds details in court documents
Keystone XL project could harm wildlife, Interior Dept, says
Follow LA. Times National on Twitter
richard.serrano@latimes.com

Cos Angeles Simes Copyright 2016 Los Angeles Times

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http://articles.latimes.com/print/2013/aug/21/nation/la-na-nn-wikileaks-bradley-manning-sentenced-20130820

1/1

Case 1:15-cv-01654-APM Document 14-7 Filed 04/29/16 Page 1 of 8

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHELSEA MANNING a/k/a
BRADLEY E. MANNING,

Plaintiff,

v. Case No. 1:15-cv-01654-APM

US. DEPARTMENT OF JUSTICE and the
FEDERAL BUREAU OF INVESTIGATION,

Defendants.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ STATEMENT OF MATERIAL
FACTS AS TO WHICH THERE IS NO GENUINE ISSUE AND
STATEMENT OF GENUINE ISSUES

Plaintiff Chelsea Manning, through counsel, respectfully responds to the
Defendants’ Statement of Material Facts as to which There is No Genuine Issue and also
refers the Court to Ms. Manning’s Statement of Material Facts, provided in the body of
her Response to Defendants’ Motion for Summary Judgment and Cross Motion for
Summary Judgment.

1. Manning sent the FBI a document request dated February 20, 2015. See
Declaration of David M. Hardy (“Hardy Decl.”), attached to Defendants’ Motion for
Summary Judgment as Ex. 1, ^ 6; Ex. A to Ex. 1.

Disputed. Ms. Manning sent her request on February 20, 2014. Doc. 12-2.

2. Manning’s request sought records “of or relating to investigation conducted by
the Washington Field Office of the Federal Bureau of Investigation and the U.S.
Attorney’s Office of the Eastern District of Virginia into the alleged disclosures of
classified and sensitive but unclassified information by Private First Class (PFC) Bradley

E. Manning, beginning in late 2010 and continuing until an unknown date, but as late as

Case 1:15-cv-01654-APM Document 14-7 Filed 04/29/16 Page 2 of 8

mid-2012.” Hardy Decl. ^ 6, Ex. A. Manning also sought records “of or relating to the
investigation conducted by the Federal Bureau of Investigation and the U.S. Attorney’s
Office of the Eastern District of Virginia into alleged civilian co-conspirators of the
disclosures of information by Manning.” Hardy Decl. ^ 6, Ex. A.

Undisputed.

3. The FBI responded to Manning’s request in a letter dated March 7, 2014. See
Hardy Decl. ^ 7, Ex. B. The FBI informed Manning that her request “did not contain
sufficient information to conduct an adequate search of the Central Records System” and
requesting additional information. See Hardy Decl. ^ 7, Ex. B.

Undisputed.

4. Manning supplemented her request by letter dated March 18, 2014. See Hardy
Decl. ^ 8, Ex. C. Manning also modified her request to include records “of or relating to
the investigation conducted by . . . the Department of Justice Counterepionage [sic]
Section” into Manning’s disclosures and records “of or relating to the investigation
conducted by the Federal Bureau of Investigation and other agencies” into alleged co-
conspirators. Hardy Decl. ^ 8, Ex. C.

Undisputed but Incomplete. Ms. Manning modified her request so that it
requested:

a. Documents, papers, reports, letters, memoranda, films,
electronic data, photographs, audio and video recordings of or
relating to investigation conduction by the Washington Field
Office (WFO), the Department of Justice Counterepionage [sic]

Section (CES), the U.S. Attorney’s Office of the Eastern District of
Virginia (E.D.Va.) into the alleged disclosures of classified and
sensitive by [sic] unclassified information by then-Private First
Class (PFC) Bradley Edward Manning (a.k.a Chelsea Elizabeth
Manning).

2

Case 1:15-cv-01654-APM Document 14-7 Filed 04/29/16 Page 3 of 8

b. Any other documents, papers, reports, letters, memoranda, films,
electronic data, photographs, audio and video recordings of or relating to
the investigation conducted by the Federal Bureau of Investigation and
other agencies into suspected or alleged civilian co-conspirators of the
disclosures alleged to have been conducted by Manning.

Doc. 12-4.

5. By letter dated March 21, 2014, the FBI acknowledged receipt of Manning’s
FOIA request and advised her that it was searching its records system for potentially
responsive records. Hardy Decl. ^ 9, Ex. D.

Undisputed.

6. By letter dated April 3, 2014, the FBI denied Manning’s request for expedited
processing, explaining its conclusion that the topic of her request was not a matter “in
which there exist possible questions about the government’s integrity which affect public
confidence.” Hardy Decl. ^ 10, Ex. E. The FBI also advised Manning that she could
appeal this determination within sixty days from the date of the letter.

Undisputed.

7. On April 8, 2014, the FBI conducted an index search of its Central Records
System (“CRS”), which is a comprehensive system that includes administrative,
applicant, criminal, personnel, and other files compiled for law enforcement purposes.
The FBI determined that its search of the CRS was likely to locate any responsive
documents. Hardy Decl. ^ 29, 33. The FBI searched the CRS for responsive main files
records, using a six-way phonetic breakdown of Manning’s names, including any
variations of the first or last. The FBI also used Manning’s date of birth, place of birth,
her description of the relevant investigation and case number. Hardy Decl. ^ 30. The FBI
located potentially responsive investigative records; upon review and following

3

Case 1:15-cv-01654-APM Document 14-7 Filed 04/29/16 Page 4 of 8

communications with the Special Agent in charge of the investigation, the FBI concluded
that the records were part of and related to pending enforcement proceedings. Id.

Undisputed that the FBI concluded that the records were related to
pending enforcement proceedings. However, Ms. Manning disputes the
FBI’s conclusion on the basis that she could not be the subject of
“pending” or prospective enforcement proceeding because she has already
been tried and convicted for the conduct from which the investigation
arose. See Manning General Court-Martial Order No. 4 (Apr. 10, 2014),
attached to Response as Ex. 5.

8. The FBI subsequently conducted an additional search for any cross references
responsive to Manning’s request using the same search terms used in its original search.
Hardy Decl. ^ 31. This search of the confirmed the results of the original search for main
files and also identified additional responsive cross references. Review of the cross
references revealed that they are also part of and related to pending enforcement
proceedings. Id.

Disputed. “Review of the cross references” did not “reveal[] that they
[were] are also part of and related to pending enforcement proceedings,”
as asserted by the FBI. Instead, far from being self evident, the FBI made
the affirmative determination that those records were related to pending
enforcement proceedings. See Hardy Decl. ^ 31. As stated above, Ms.
Manning disputes that determination.

9. The FBI concluded that a separate search for records responsive to the second part
of plaintiff’s request (seeking records about the FBI’s investigation of other individuals

4

Case 1:15-cv-01654-APM Document 14-7 Filed 04/29/16 Page 5 of 8

involved in the unauthorized disclosure of classified materials that were published on the
WikiLeaks website) was unnecessary because those records were maintained in the same
files containing the records responsive to the first part of plaintiff’s request (for records
about herself). Hardy Decl. ^ 32.

Undisputed as to the FBI’s conclusion that the two categories of records
were maintained in the same file; however the Declaration provides
insufficient facts to draw the conclusion independently that those records
completely overlap.

10. The FBI determined that disclosure of the responsive records would adversely
affect the FBI’s pending investigation and any resulting prosecutions and that there was
no reasonably segregable information. Hardy Decl. ^ 38-48. The FBI also determined that
the records may be exempt, in whole or in part, under one or more other FOIA
exemptions. Hardy Decl. ^ 33.

Disputed. The Declaration provides on that the “FBI’s segregability
review determined there is no reasonable segregable information,
including public source material, which can be released at this time
without adversely affecting the investigation and any related
prosecutions.” Hardy Decl. ^ 48. There is no evidence in the record
illuminating what that “segregability review” entailed, e.g., how and by
whom it was conducted. As a consequence, Ms. Manning disputes that the
FBI did, in fact, make a segregability determination based on a review,
particularly in the face of the fact that the FBI conducted its search on the
same day that it responded to Ms. Manning that the entire investigative

5

Case 1:15-cv-01654-APM Document 14-7 Filed 04/29/16 Page 6 of 8

file was exempt. See Hardy Decl. ^ 30; see also Doc. 12-7.

11. By letter dated April 8, 2104, the FBI advised Manning that the information she
requested was located in a pending investigative file exempt from disclosure pursuant to
FOIA Exemption 7(A). The FBI also advised Manning that she could appeal this
determination to the Department of Justice’s Office of Information Policy (“OIP”) within
sixty days from the date of the letter. Hardy Decl. ^ 11, Ex. F.

Undisputed that the FBI invoked a categorical and blanket exemption on

the records’ being located in a “pending investigative file.” Doc. 12-7.

However, the FBI informed Ms. Manning of its determination on April 8,

2014, not 2104. Doc. 12-7.

12. By letter dated April 11, 2014, Manning appealed the FBI’s denial of her request
for expedited processing to OIP. Hardy Decl. ^ 12, Attachment G.

Undisputed.

13. By letter dated April 17, 2014, Manning appealed the FBI’s denial of her request
pursuant to FOIA Exemption 7(A) to OIP and also challenged the FBI’s failure to address
her request for disclosure of the requested records under the Privacy Act. Hardy Decl. ^
13, Ex. H.

Undisputed.

14. By letter dated April 29, 2014, OIP acknowledged receipt of Manning’s appeal of
the denial of expedited processing and advised Manning it was closing the appeal
because the FBI had already responded to her request, rendering the expedited processing
request moot. Hardy Decl. ^ 14, Ex. I.

Undisputed.

6

Case 1:15-cv-01654-APM Document 14-7 Filed 04/29/16 Page 7 of 8

15. By letter dated May 7, 2014, OIP acknowledged receipt of Manning’s April 17,
2104 appeal of the FBI’s denial of her request pursuant to Exemption 7(A) and advised
her that it would notify her of its decision as soon as possible. Hardy Decl. ^ 15, Ex. J.

Undisputed as to substance; however Ms. Manning appealed the FBI’s

categorical denial of her request on April 17, 2014, not 2104. Doc. 12-9.

16. By letter dated August 7, 2014, OIP affirmed the FBI’s action on Manning’s
request, determining that the FBI properly denied the request pursuant to Exemption 7(A)
and that the records responsive to the request were exempt from the access provision of
the Privacy Act. Hardy Decl. ^ 16, Exhibit K. OIP further advised Manning that she
could file a lawsuit in federal district court and/or seek the mediation services of the
Office of Government Information Services (“OGIS”) at the National Archives and
Records Administration to resolve her dispute with the FBI. Id.

Undisputed.

17. By letter dated January 5, 2015, Manning requested assistance from OGIS. Hardy
Decl. ^ 17, Ex. L.

Undisputed.

18. By letter dated January 16, 2015, OGIS acknowledged receipt of Manning’s
mediation services request. Hardy Decl. ^ 18, Ex. M.

Undisputed.

19. By letter dated February 24, 2015, OGIS responded to Manning’s mediation
request and provided additional explanation about the application of Exemption 7(A).
Hardy Decl. ^ 19, Ex. N.

Undisputed.

7

Case 1:15-cv-01654-APM Document 14-7 Filed 04/29/16 Page 8 of 8

20. Manning filed the instant lawsuit on October 8, 2015. See ECF No. 1
(Complaint).

Undisputed.

Respectfully Submitted,

Freedman Boyd Hollander
Goldberg Urias & Ward P.A

/s/ Nancy Hollander
Nancy Hollander
D C. Bar No. TX0061

Vincent J. Ward
Amber Fayerberg
20 First Plaza, NW, Suite 700
Albuquerque, NM 87102
(505) 842-9960

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I CERTIFY that on the 29th day of April, 2016, I filed the foregoing electronically

through the CM/ECF system, which caused the following parties or counsel of record to

be served by electronic means, as more fully reflected on the Notice of Electronic Filing.

/s/ Nancy Hollander
Nancy Hollander

8

Case 1:15-cv-01654-APM Document 14-8 Filed 04/29/16 Page 1 of 1

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHELSEA MANNING a/k/a
BRADLEY E. MANNING,

Plaintiff,

v. Case No. 1:15-cv-01654-APM

US. DEPARTMENT OF JUSTICE and the
FEDERAL BUREAU OF INVESTIGATION,

Defendants.

[PROPOSED] ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AND GRANTING PLAINTIFF’S CROSS MOTION FOR

SUMMARY JUGMENT

The Court having considered all briefs filed in support of and in opposition to
Defendants’ Motion for Summary Judgment and Plaintiff’s Cross Motion for Summary
Judgment, and good cause appearing,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment is
DENIED, and Plaintiff’s Cross Motion for Summary Judgment is GRANTED.

Dated:__________________, 2016

The Honorable Amit P. Mehta
United States District Court for the
District of Columbia

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