Transcript | US v Pfc. Manning, Appellate Exhibit Unknown, Court Ruling and Order: Interplay Between MRE 505, RCM 806, and US v. Grunden, Specificity of Classified Info and John Doe

UPDATE POST COURT-MARTIAL

United States v. Pfc.Manning was conducted in de facto secrecy. The public was not granted contemporaneous access to court filings or rulings during her trial. In addition to reporting on her trial, I transcribed the proceedings, reconstructed the censored appellate list, and un-redacted any publicly available documentation, in order to foster public comprehension of her unprecedented trial.

As a result of a lawsuit against the military judge and the Military District of Washington brought by the Center for Constitutional Rights, as well as my own FOIA requests and research, an official court record for US v. Pfc. Manning was released seven months after her trial. That record is not complete.

The official trial docket is published HERE and the entire collection of documents is text searchable at usvmanning.org.

*During the pretrial proceedings, court-martial and sentencing of Pfc. Manning, Chelsea requested to be identified as Bradley and addressed using the male pronoun. In a letter embargoed for August 22, 2013 Chelsea proclaimed that she is female and wished to be addressed from that moment forward as Chelsea E. Manning.

This Ruling and Order on the Interplay Between MRE 505, RCM 806, and United States v. Grunden, Specificity of Classified Information and John Doe was read by Judge Lind into the Court record at the April 10, 2013 Article 39(a) Session of United States v. Pfc. Manning.

[BEGIN RULING AND ORDER: INTERPLAY BETWEEN MRE 505, RCM 806, AND US v. GRUNDEN, SPECIFICITY OF CLASSIFIED INFORMATION AND JOHN DOE]

Ruling and Order: Interplay Between MRE 505, RCM 806, and United States v. Grunden, Specificity of Classified Information and John Doe.

Motion 1. The government moves this court to find that MRE 505(i) Classified Information and RCM 806 operate independently of each other although both rules address the use of classified information during a court martial trial. The defense opposes and moves the court to require the procedures of MRE 505(i) be followed when making closure determinations in accordance with Rule for Court Martial 806(b)(2).

Motion 2. On 15 March 2013, the government provided the court and the defense with a supplement to prosecution response to scheduling order 39(a) session on closure and motion to close the courtroom for specified testimony.

On 28 March 2013, the defense moved the court to order the government to provide more specificity regarding the classified information it seeks to elicit during the closed session. The defense also moved the court to order the government to release a merits witness and a sentencing witness to go through a "dry run" of the classified testimony in a closed Article 39(a) session to address whether there are reasonable alternatives to closure available.

Motion 3. On 31 January 2013 the government moved for an in camera proceeding under Military Rules for Evidence 505(i)(2) regarding the witness John Doe to determine the necessity for moving the court to order the following:

(1) Permit the witness to testify under the pseudonym John Doe to testify in civilian clothing in light disguise and to testify from an alternate location in a closed session.

(2) Limit discovery and cross examination regarding information that could reveal the witness' true identity; and

(3) Limit discovery and cross examination by precluding the defense from questioning the witness regarding irrelevant and highly classified information including his training for a specific classified mission; preparation for the mission; or details of the mission's execution outside the scope of direct examination.

After considering the filings by the parties and oral argument, the Court finds and rules and orders as follows:

FINDINGS OF FACT AND THE LAW:

(1) The accused has a Sixth Amendment right to a public trial. Waller v. Georgia 467 US 39 (1984); US v. Ortiz 66 MJ 334 CAAF (2008). The public has a First Amendment right to attend [public?] and criminal trials. Press Enterprise Company v. Superior Court of California Riverside County 464 US 501 (1984); Powell v. McKinney, 47 M.J. 363 (C.A.A.F. 1997). Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials to include considering alternatives to closure even when they are not requested by the parties. Presley v. Georgia 558 US 209 (2010).

(2) The values enhanced by the requirement for public trial are to (1) inspire public confidence that the accused is fairly dealt with and not unjustly condemned; (2) impress upon trial participants the importance of their function and the importance of carrying out their duties responsibly; (3) encourage witnesses to come forward; and (4) to discourage perjury. Waller 467 US at 46 Openness enhances both basic fairness of the criminal trial and then appearance of fairness so essential to public confidence in the criminal justice system. Press Enterprise Company 464 US at 501-509.

(3) Before the Military Rules of Evidence were enacted in 1980, military case law allowed closure of courts-martial for portions of the trial where classified information was to be disclosed. US v. Grunden 2 MJ 116 CMA (1977) established a test for such closures.

(4) Under the current rules, Military Rule of Evidence 505 governs the use of classified information at trial. MRE 505(i) are in camera proceedings for cases involving classified information authorizes in camera proceedings to address the use of any proceeding of any classified information. MRE 505(j) governs the introduction of classified information into evidence at trial. MRE 505(j)(5) close session provides that the military judge may exclude the public during that portion of the presentation of evidence that discloses classified information.

(5) RCM 806 establishes the standards for closure for any reason to include the protection of classified information.

(6) Prior to its amendment in 2004, RCM 806(b) provided in relevant part that "a session may be closed over the objection of the accused only when expressly authorized by another provision of this manual." The discussion to the rule explained that "a session may be closed without the consent of the accused only under MRE 412(c); 505(i) and (j); or 506(i). This authorization of trial closure failed to apply the constitutional test set forth in Waller and Press Enterprise and adopted by the Court of Appeals for the Armed Forces in United States v. Hershey 20 MJ 433, 436 CMA (1985).

(7) In 2004, RCM 806(b)(2) was amended to incorporate the constitutional test for trial closure. The rule provides that the trial "shall be open to the public unless (1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remained open"; (2) closure is no broader than necessary to protect that overriding interest; (3) reasonable alternatives to closure were considered and found to be inadequate; and (4) the military judge makes case specific findings on the record justifying closure.

(8) The Court of Appeals for the Armed Forces (CAAF) has recognized that the protection of classified information can be an overriding interest if the proceedings remain open. United States v. Lonetree 31 MJ 849 Navy Marine Corps of Military Review (1990) affirm 35 MJ 396 (CAAF 1992); and United States v. Grunden 2 MJ 116 CMA (1997).

(9) Where the identity of a witness is classified or if the government proves that the witness' personal safety would be at risk if his identity is disclosed at trial, the Sixth Amendment allows the government to withhold the identity of the witness and to allow the witness to testify in light disguise so long as the defense is able to place the witness in his proper setting. Unites States v. Lonetree 35 MJ 396 CMA (1992).

(10) In the government's 15 March 2013 classified filing Supplement to Prosecution Response to Scheduling Order of 39(a) Session from Closure and Motion to Close Courtroom for Specified Testimony, the government describes the classified information it moves to elicit in closed session for the following witnesses:

(1) Brigadier General Retired Robert Carr, DIA

(2) Colonel Julian Chestnut, DIA

(3) Classified Witness Entirety

(4) Ms. Elizabeth Dibble, Department of State, Principal Deputy Assistant Secretary, Bureau of Near Eastern Affairs

(5) John Doe (Entire)

(6) Rear Admiral Kevin Donegan, Naval Warfare Integration, Pentagon

(7) Mr. John Feeley, Principal Deputy Assistant Secretary, Bureau of Western Hemisphere Affairs, Department of State

(8) Ambassador Patrick F. Kennedy, Under Secretary for Management, Department of State

[Diplomatic Security Services which partnered with the Departments of Defense and Justice in the investigation of Julian Assange, WikiLeaks, and Manning report to Ambassador Patrick Kennedy. Bureau of Intelligence and Research, which created the "August 2011 draft damage assessment" also reports to Kennedy. Kennedy is the Original Classification Authority for the US State Department cables. He aslo testified to Congress in late November, early December of 2010, and in March 2011 about WikiLeaks. He is also responsible for the WikiLeaks Mitigation Team at the Department of State.]

(9) Mr. John Kirchhofer, DIA

(10) Ambassador Michael Kozak, Department of State

(11) Classified Witness Entirety

(12) Mr. Daniel Lewis, DIA

(13) Mr. Randall Mcgrovey [sp.?], DIA

(14) Mr. James McCarl (http://www.ndu.edu/inss/docuploaded/7thLessonsLearned_Agenda.pdf), Joint IED Defeat Organization (JIEDDO)

(15) Major General Kenneth F. McKenzie, USMC Headquarters Staff

(16) Mr. James Moore, Department of State

(17) Major General Michael [last name like, "Ma-guy"] McGuy, Joints Staff Pentagon

(18) SSA [Supervisory Special Agent] Alexander Pott [sp.], FBI

(19) Ambassador David Pearce, Department of State

(20) Mr. Adam Pearson, JIEDDO

(21) Mr. H. Dean Pittman, Department of State

(22) Classified Witness in Entirety

(23) Ambassador Stephen Seche, Department of State

(24) Mr. David Shaver, US Department of Treasury

(25) Mr. Catherine Stobel [sp.], CIA

(26) Ambassador Don Yamamoto, Department of State

(27) Ambassador Marie Yovanovitch, Department of State; and

(28) Mr. Joseph Yun, Department of State

(11) On 4 April 2013 the court held and RCM 802 conference with the parties to discuss the motions at issue in this case and scheduling issues involve in implementing this order. At that RCM 802 conference the defense advised the court it did not object to closure for three classified witnesses or for John Doe, and did not object to John Doe testifying in an alternate location or in light disguise in civilian clothing, so long as the light disguise allows the defense allows the defense to observe John Doe's demeanor. The substance of that RCM 802 conference is documented via email and has been read on the record.

CONCLUSIONS OF LAW:

(1) MRE 505(i) authorizes the government to request an in camera proceeding to determine whether classified information maybe disclosed either to the accused in discovery or used during the trial.

(2) MRE 505(j) governs the introduction of classified information into evidence in the trial. MRE 505(j)(5) authorizes military judges to close the trial during that portion of the presentation of evidence that discloses classified information.

(3) The First and Sixth Amendment rights to a public trial require the judges to employ the constitutional test for closure in accordance with RCM 806(b)(2) prior to closing any portion of the trial in accordance with MRE 505(j)(5).

(4) The requirements of 505(i) are not applicable when the government request closure of a portion of the trial or an Article 39(a) session in accordance with RCM 806(b)(2). Where the basis for the closure is to protect national security by preventing disclosure of classified information, the government must identify the particular classified information at issue to the defense and court with sufficient specificity to allow the defense to propose alternatives and to challenge closure and to provide the court with sufficient information to apply the RCM 806 test and determine whether there is a substantial probability that an overriding interest would be prejudiced if the proceeding remain open; (2) Closure when it is broader than necessary to protect that overriding interest; (3) Whether there are reasonable alternatives to closure and whether they be considered and found inadequate; and (4) to make case specific findings on the record justifying closure. The government must also provide the court with evidence that the information it seeks to qualify has an overriding interest requiring protection by closure is properly classified.

(5) The court has examined the government's 15 March 2013 Classified Supplement to Prosecution Response to Scheduling Order for 39(a) Session on Closure and Motion to Close the Courtroom for Specified Testimony. The description of the classified information the government seeks to elicit during the closed session for each of the identified witnesses is sufficiently specific for the defense to challenge closure and to propose reasonable alternatives to closure. Although the description of the classified information is sufficiently specific, the government has not provided the court with evidence of the classified nature for all of the classified information at issue to allow the court to properly apply the RCM 806(b)(2) test and to make appropriate case specific findings.

(6) One alternative that could mitigate the impact of closure is for the court to require the government to transcribe closed sessions. First, conduct the appropriate classification reviews of the transcribed record and to release the redacted of the unclassified portions of the transcript or the closed session to the public.

(7) The court has examined the classified government motion for in camera proceeding under MRE 505(i)(2) and the enclosures to include enclosures 10, 12, and 13. The court has held two in camera Article 39(a) sessions with the government to address defense discovery issues. The government proposes to give the defense a written copy of the government's proposed direct examination of John Doe and the anticipated responses in enclosure 10. The government also proposes to provide the defense a summary of relevant discovery, enclosure 9 in part and enclosure 13. The court finds that these disclosures are sufficient to allow the defense to place the witness in his proper setting.

RULING: The defense motions to require the use of procedures and MRE 505(i) for proceedings addressing enclosure determinations under RCM 806(b)(2) and for the government to provide more specificity to the defense regarding the classified information proposed for disclosure are denied. The defense motion to produce a "dry run" government merits witness to testify in a closed Article 39(a) session to assist the court in determining if there are reasonable alternatives to closure is granted. The government motion to permit a classified witness to testify under the pseudonym John Doe-- to testify in civilian clothing in light disguise and to testify in an alternative location in a closed session is granted, so long as the light disguise allows the defense to observe the witness' demeanor, body language, eye movements, and facial reactions. The government motion to limit discovery and cross examination regarding information that could reveal John Doe's true identity and preclude the defense from questioning John Doe regarding irrelevant and highly classified information including his training for specific classified mission, preparation for the mission, or details of the mission execution outside the scope of direct examination is granted. The court will set forth its RCM 806(b)(2) closure findings for this witness in a separate ruling.

ORDERED:

(1) No later than 7 May 2013 the government will provide the court with evidence of the classified nature of each of piece of classified information the government seeks to assert as an overriding interest justifying closure and of the draft order specifying the evidence for the specified classified information.

(2) No later than 12 April 2013 the government will provide the court and the defense a status update on the progress made to identify merits witness for whom the government seeks closure based on disclosure of classified information to be produced for a "dry run" of [missed word] testimony at the closed Article 39(a) session scheduled 7, 8 May 2013. The parties have identified several witnesses who would testify similarly but disclose different classified information. For example, Original Classification Authorities. The witness produced would be one of those "Categorical Witnesses". The witness will testify as he/she would at trial in a closed session to facilitate the courts determination whether there are reasonable alternatives to closure. Pursuant to RCM 806(b)(2), the court finds that closure of the Article 39(a) session is required to prevent disclosure of classified national security information from this witness, is narrowly tailor to closing only the outer court session intended to flush out the classified information involved and to determine whether there are reasonable alternatives to closure of the same classified information at trial. The court further finds there is no reasonable alternative to closure of this Article 39(a) session.

(3) No later than May 6, 2013, the government will provide the court with a plan for executing for expeditious transcription, authentication, classification review, and release of redacted versions of closed sessions to the public.

So ordered this 10th day of April 2013.

[END RULING AND ORDER: INTERPLAY BETWEEN MRE 505, RCM 806, AND US v. GRUNDEN, SPECIFICITY OF CLASSIFIED INFORMATION AND JOHN DOE]

Alexa O'Brien Alexa O'Brien researches and writes about national security and law enforcement. Her work has been published in The New York Times, VICE News, The Cairo Review of Global Affairs, Guardian (UK), The Daily Beast, NY Daily News, and featured on the BBC, PBS, NPR, Democracy Now!, and Public Radio International. She was shortlisted for the 2013 Martha Gellhorn Prize for Journalism in the United Kingdom and listed in The Verge 50. In 2016, she worked at The Constitution Project in Washington, D.C. as a staff researcher and writer on an independent commission studying Oklahoma's death penalty. She also provided research support to scholars of the first cost study conducted on that state's capital punishment system.