Transcript | US v Pfc. Manning, Article 39(a) Session, 03/01/13
- posted March 1, 2013
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 is a transcript of the Article 39(a) Motion Hearing held on March 1, 2013 at Fort Meade, Maryland in US v Pfc. Manning. It may contain omissions or errors.
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Judge: Army Col. Denise Lind
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Prosecution: Captain Ashden Fein, Captain Joe Morrow, Captain Angel Overgaard
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Defense: Mr. David Coombs,Captain Joshua Tooman, Major Thomas Hurley
ALL RISE
Judge Lind
Please be seated. This Article 39(a) Session is called to order. Let the record reflect all parties present when the court last recessed are again present in court.
Major Fein do we have any housekeeping items to set for the record?
Prosecution (Fein)
Yes, Ma’am.
Your Honor, the prosecution and defense met last night and this morning– and during the 802 this morning came to an agreement on the– a way forth for the defenses MRE 505(h) notice and what has been now marked as appellate exhibit 502– is the prosecution’s notice to the court and defense on our understanding of obligations of process to defense’s MRE 505(h) notice.
To summarize this filing your Honor, the United States agrees that the– the notice is adequate with two exceptions, but overall it’s not [missed word] in prosecution uses to go to the equity holders to insure there is proper authority for the defense to elicit that information from the appropriate witnesses.
There are two witnesses that the prosecution requested more information from– defense agreed to provide that no later than 8 March 2013.
Also, the prosecution requested notice from the defense on whether they intend to share the ONCIX damage assessment with any witness, because that wasn’t annotated.
And the defense asked for the prosecution’s assistance in giving them access again to review that document– and that will happen before 8 March 2013 as well.
Finally, your Honor, the United States intends to process the defense’s MRE 505(h) notice dated 14 December 2012 in reference to the three different damage assessment and both parties agree that they would work to have a stipulation of fact in lieu of using those assessments; and the parties will start working on those stipulations.
However, concurrently, if the parties do not agree on a stipulations [sic] the prosecution is going to continue working to get approval for those documents to be used at the trial according to the original notice given by the defense.
And, finally your Honor, both parties agree that even if the government stipulations are not agreed upon, and the government moves or uses the original notice that the defense agrees that Private First Class Manning moves– or uses the original notice– that the defense agrees that Private First Class Manning would not necessarily be given access to the originals, regardless if a privilege is invoked or not by the government.
So, with that understanding the government’s going to continue moving forward to get all this done according to the case calendar.
Judge Lind
Alright. Defense anything to add to that?
Defense (Hurley)
No, Ma’am.
Judge Lind
Alright.
And for the record, I did want to put forth the scheduling order.
The parties and I met this morning in an RCM 802 conference– once again, that’s a conference where I meet with the parties to talk about logistics and scheduling issues in the case.
Bottom line is the case calendar has not changed.
There are certain things that have been added to it that may be addressed at the subsequent Article 39(a) sessions, but the calendar as scheduled has not changed.
The next Article 39(a) session will be the 10th trough the 12th of April 2013.
That will be followed by another Article 39(a) session on the 21rst through the 24th 2013; and trial will continue as scheduled to begin on the 3rd of June 2013.
Does either side desire to add anything to that?
Defense (Coombs)
No, your Honor.
Prosecution (Fein)
No, your Honor. And that calendar that you signed is marked as appellate exhibit 503.
Judge Lind
Alright.
I believe next on the agenda is the defense wish to address the government’s submission with respect to the Article 104 issue we had before us: whether giving intelligence to the enemy is a form or correspondence or subset of communication to the enemy– that is an issue the court has taken under advisement.
And, the government has submitted something with– historical documents by Winthrop: Military Law and Precedents, and the defense wished to address that today.
Defense (Coombs)
Yes, your Honor.
Again, just the defense’s position is that Article 104 does not have the required element of proving receipt by the enemy.
It is not listed anywhere within Article 104.
There is no case law that says that receipt by the enemy is required for giving intelligence to the enemy under Article 104, and if this were in fact an element, you certainly would expect to see it within Article 104.
But the defense did want to address some of the issues that the government has raised recently with its additional filings.
Obviously, the government’s position is premised in part on the definition of intelligence in the Bench Book and I won’t cover that again, but the defense’s position is clear is that is not controlling.
Intelligence is a noun.
And, it is inconsistent with the meaning given to it in the Manual.
But for Winthrop– when you look at Winthrop, Ma’am, if you have that in front of you. If you look at page 633. When you look at–
Judge Lind
Let me– Let me turn to that quickly, here.
Defense (Coombs)
Sure, Ma’am.
Judge Lind
Alright.
Defense (Coombs)
633 and then carrying over into 634 is where Winthrop talks about the offense of corresponding with the enemy and then also giving intelligence to the enemy.
And, when you look at the language within corresponding with the enemy– it contained what is now basically within the Manual for Court-Martials.
That communication does not have to be received.
That intelligence must be true, at least in part.
In their words, the drafters of the– of the Article 104 more appropriately, looked to Winthrop at least and modeled Article 104’s language with regards to communication with the enemy after what Winthrop write here.
But when it comes to giving intelligence to the enemy, the drafters of Article 104 chose not to replicate Winthrop, which they easily could have done.
And that must be taken as deliberate and not just an oversight.
And, the reason why is that, it is inconsistent to say that communicating doesn’t require receipts, but giving intelligence does.
And it’s inconsistent particularly when the drafters, unlike Winthrop, of Article 104 chose to view giving intelligence as a subset of corresponding with the enemy.
They actually add that to communicating with the enemy.
So, Winthrop actually, even though the government cited it as– as authority for their position, is probably the better authority for the defense’s position that actual receipt is not required by Article 104.
Related to this argument of Winthrop, the government places emphasis on the plain meaning of the word giving.
And they say, well giving implies receiving or they make the argument that even if it is not an element than at the very least, receiving would be somehow relevant to prove giving.
But the problem with that logic is that when you apply that to communicating, communicating receipt implies a mutual receipt– if I am communication with you, if I send you something by email that implies that implies a receipt in order to have that communication.
Judge Lind
Well, let me just stop you there Mr. Coombs–
Defense (Coombs)
Yes, your Honor.
Judge Lind
— again, I am seeing two issues here. I am seeing, is receipt required and is receipt relevant?
Defense (Coombs)
Right, your Honor.
Judge Lind
So, if in the communication case– what’s the defense’s position– that the Manual clearly says that receipt not required, is irrelevant.
Defense (Coombs)
No, your Honor.
And the reason why– and that actually also is proof that the drafters of 104 chose to ignore what Winthrop wrote.
And the idea is– Article 104– the overarching theme of 104 is absolute non-intercourse with the enemy unless you have authority to give information to the enemy or communicate with the enemy.
So, the theme of 104 is you don’t speak to the enemy unless authorized.
And so, it would be inconsistent to say, ‘Well– you know, were not going to require any receipt by the enemy, when you are trying to communicate, but we are going to try– we are going to require receipt if you give intelligence to the enemy.’
So I think it is clear that receipt by the enemy is not required as an element.
And then as it comes to the second part as the court said, that if the other argument of actual relevance, it is also equally clear that it is not relevant, because Article 104 says it is not relevant. It’s not relevant, because–
Judge Lind
Well, Article 104 doesn’t say it’s not relevant.
Defense (Coombs)
Well, it does from the standpoint of saying that receipt is– is not required.
The actual offense committed as soon as the correspondence leaves from the accused.
So, that is the area of concern.
And so when it comes to here– like if I am carrying forward with the government’s argument of, ‘You know what– we want to show that there was a receipt, because that is somehow relevant to show that he gave– and then that’s the way we want to [missed word] this.’
That is kind of the after the fact argument that didn’t work for the defense when it came to the damage assessment.
But, here when you take a look at what the government’s evidence is, they are trying to offer the Usama bin Laden raid that occurred on 1 May 2010.
They chose to charge Pfc. Manning with an Article 104 violation on 1 March– excuse me it [the raid] happened on 1 May 2011.
They chose to charge Pfc. Manning on 1 March 2011 for the 104 violation.
So, this– the decision by the government to charge 104 occurred prior to the evidence that they are trying to use right now to prove apparently the giving. And that is again–
Judge Lind
Well, let me just ask you there. 1 May 2011, is that the date of–
Defense (Coombs)
The actual raid Ma’am– And they–
Judge Lind
The raid– at least as I understand it recovered something that was already there.
Defense (Coombs)
That is correct.
And they’re– and again the issue would be from the witness’ testimony or whatnot, when that information was there certainly. That– that might come into some play.
But, the problem is it still the receipt by the enemy, if at all, is after the issue that we are concerned about– and that’s what’s– what’s the actual knowledge.
So, the government’s argument is that this was somehow— this is relevant to ‘actual knowledge’ and this is relevant to ’cause to be published’ for Spec 1 of Charge II.
The defense doesn’t see anyway you can make an argument for ’cause to be published’.
But with regards to ‘actual knowledge’ again, the timing– the time period that we are concerned about is what did Pfc. Manning know at the time that he sent the information to WikiLeaks.
That is what is relevant– not whether or not the enemy actually, ultimately received it.
So, the enemy can receive something and Pfc. Manning can have no actual knowledge that the enemy would even get it, and therefore that is not relevant at all.
So, the defense’s position is that it is not only not an element, but the– and when you look at Winthrop which is primarily the government’s argument, the fact the Manual did not follow Winthrop when it came to giving intelligence, but they did when it came to communicating.
Indicates that was a conscious decision of the drafters of Article 104.
And then just clearly– when the court looks at what is relevant for ‘actual knowledge’– is at the time. And this is clearly after the fact evidence.
So, therefore, the defense’s position is that this would not be relevant on the merit. It could be relevant on the sentencing, though.
Judge Lind
Alright. Thank you, Mr. Coombs, I believe I asked you just the other day– but I am going to ask it once again– in my draft instructions I have written the instructions in the Bench Book, that the communication has to be received by the enemy. Is the defense specifically weighting that instruction?
Defense (Coombs)
Yes, your Honor.
Judge Lind
Government?
Prosecution (Fein)
Yes, Ma’am.
Ma’am may I brief from partly from counsel’s table?
Ma’am directly to the points that Mr. Coombs has arguing. The MCM as early as 1917 and I understand now we will need to provide the court this information.
Judge Lind
Thank you.
Prosecution (Fein)
The government downloaded last night from the Library of Congress.
But every version of the Manual for Court-Martials since 1917 has used essentially the same– or a slight variation of the language of Article 104 that we find today.
In fact, the 1917 version your Honor, giving– under ‘aiding the enemy’ your Honor it breaks it into four categories: Relieving the Enemy, Harboring of Protecting the Enemy, Holding Correspondence with the Enemy, and Giving Intelligence to the Enemy. Four subsections.
Under ‘giving intelligence to the enemy’, your Honor, it lays out two elements that the accused knowingly conveyed to the enemy certain information, and second, the information is true at least in part.
So the two elements of Article 104 have essentially been the same with slight variation of language since before the 1920 reprint of Winthrop, up to today’s codified 104.
Winthrop as the digest at the time, interpreted what was in existence at the time, but fortunately, your Honor, directly the court to Winthrop page 634, exact language Winthrop uses is ‘it is necessary that the enemy shant have been actually informed. If therefore the intelligence fails to reach him, his offense is not completed, though the offense of holding correspondence may be.’
There is a footnote– footnote 10. The United States has spent much time trying to find footnote 10– the actual source. Digest 42.
We will continue then after today with the help hopefully of the JAG corps historian and anyone else willing to assist in this research.
Prosecution (Fein)
But the footnote specifically says within quotations, ‘It is essential to the offense of giving intelligence to the enemy that the material information should actually be communicated to him.’
Judge Lind
What is the government’s position with respect to the defense argument that the Manual drafters codified Winthrop’s position with respect to communicating with the enemy, not with giving intelligence to the enemy.
Prosecution (Fein)
Well, your Honor, the drafters codified– memorialized exactly what the stated law has been this whole time. Winthrop’s position on communication– you cannot have absolute intercourse with the enemy– you cannot be in the ranks of the enemy is absolute intercourse. It’s not a completion.
That’s communication.
Giving intelligence completely separate offense– the Manual today– even the Bench Book– the government argues is in line with Winthrop, even for that [missed word].
I mean the language is very similar. And, that is why specifically used for correspondence– excuse me, communication.
Judge Lind
The Manual– the Article is silent about whether receipt is required or not for giving intelligence.
Prosecution (Fein)
It is.
It is, because, the United States argues that it has been silent since day one– at least the earliest version of the Manual in 1917– it has been silent on that because it is the simple definition of ‘giving’.
To give, your Honor, again– according to Black’s Law Dictionary to give is to voluntarily transfer property to another– ‘to another’. It’s not simply to put it out there for anyone.
It’s to give– voluntarily transfer property to another.
‘To transfer’ according to Black’s Law Dictionary, your Honor, is ‘any mode of disposing or parting with an asset or interest.’
So just the plain meaning of that– that– that word.
Today and all the way back– and when you go to property law– we could– if the court wants these targeted briefs that are not necessary military justice– the government can do this.
But the plain meaning of ‘give’ from back in 1917 forward has been to have property delivered to another– otherwise in ‘giving’ it has not occurred– it transferred to another has not occurred.
So there would be no reason for the drafters of the current Manual to change what has been the law up to this point for this one area.
There has been an exception made that is clearly outlined for ‘communicating’ which says ‘no response received by the enemy is required.’
But that is for ‘communicating’. If no receipt or response was required for ‘giving’ the drafters would have incorporated that in.
So, the government– or the defense is arguing is the lack of this information, therefore, it is not the definition, but, again, the– what exists in 1917 exists today in essence.
And the only authority on it that either side can find, Winthrop, says that is what it was in 1917– or excuse me 1920 when it was [missed word].
Judge Lind
Well, does the government– I mean the court has always benefited by being educated with respect to these issues.
I mean is the government proposing filing additional briefs?
Prosecution (Fein)
Your Honor, yes, your Honor.
The government will attempt to find digest 20– again– it wasn’t at the Library of Congress.
We will try somewhere else.
Judge Lind
So, does the government then want to follow the filing calendar with respect to these briefs for the next Article 39(a) session?
Prosecution (Fein)
May I have a moment, your Honor?
Judge Lind
Yes.
Prosecution (Fein)
Ma’am, may we have a recess in place?
Judge Lind
Yes. Court is in recess in place. Do you want to take ten minutes and then discuss it and then come back on the record?
Prosecution (Fein)
Ma’am, it will probably be about 30 seconds. Ma’am, we are ready to go back on the record.
Judge Lind
Court is called to order. Let the record reflect all parties present when the court last recessed are again present in court.
Prosecution (Fein)
Ma’am, the United States proposes that the same as we have two other targeted briefs on the court calendar that the government and the defense as well could just as well have a targeted brief for that same date 29 March 2013.
Judge Lind
Alright. Defense do you want to file a brief at the same time that they do, or do you want to file a brief in response to them– or do you not want to file a brief at all?
Defense (Coombs)
Right.
The defense believes our position is clear. I don’t believe an additional is required. If the government raises something new in their brief than I will reply to that, Ma’am.
Judge Lind
Well, why don’t we do this then– let’s plug in the government brief into the trial calendar. We’ll just– we’ll put a corrected copy of the trial calendar as the next appellate exhibit in line.
So, we don’t have to create new appellate exhibits.
Prosecution (Fein)
Yes, Ma’am.
Judge Lind
And, we’ll add that. Defense if you could just notify me via email of your desire to submit a brief or not, because it will depend on the court’s timing for the ruling then, because I am not going to rule on the issue, before I receive the government’s brief.
So, if the defense wants to file something new let me know. So, I can wait for that too.
Defense (Coombs)
Yes, your Honor.
Prosecution (Fein)
Yes, Ma’am.
Judge Lind
Alright is there anything else on the 104 issue, Mr. Coombs do you want to reply?
Defense (Coombs)
Yes, just [missed word]. Just one issue that the government indicated.
They said, ‘no authority other than Winthrop.’
The– when you look at the Manual– just repeats our decision– what is not in Winthrop– what is in the Manual is that they did say, ‘giving intelligence to the enemy’ is a particular case of corresponding with the enemy, and the–
Judge Lind
Well, Winthrop says that too, right?
Defense (Coombs)
True, but from the standpoint from– under giving intelligence to the enemy, then communicating with the enemy is correspondence as well.
So, what they are basically saying– the communicating with the enemy involves a correspondence.
And, if the government wants to use plain meaning of words, then if plain meaning within the Manual says that giving intelligence to the enemy is a particular for of correspondence made more serious by the fact that you have intelligence in your correspondence, then you have to read everything consistently– and that is where it says, ‘the offense is complete the moment communication, correspondence, or intercourse issues from the accused.’
So, if you want to play the plain meaning of the words game, then you have to play it consistently.
And, here then there would be no need to add in the giving intelligence doesn’t require actual receipt, because it is clear from reading the plain language within Article 104 that it is not required.
Judge Lind
One thing I would like you to– well, it was the Anderson case that I believe the government brought up yesterday, where they had two separate specifications that the Anderson court ruled were they had two separate specifications that the Anderson court ruled were not multiplicitous or an unreasonable multiplication of charges.
The giving, receipt and the communication of the receipt of the information.
Am I correct in saying, at least factually, that the information at issue was different for each of the specifications or did they involve the same information?
Defense (Coombs)
It was different, your Honor.
Prosecution (Fein)
Your Honor, we have– we can put that in our brief.
Judge Lind
Yeah, please do that. I mean as I remember reading the case I thought it was different information.
So, if it is different information– [missed a few words] potentially a different grounds for not holding something unreasonable multiplication of charges.
If it was identical information and the court and came back and said, ‘No, they are two separate specifications charged.’
That would be a different rational for– for holding that.
Prosecution (Fein)
Yes, Ma’am. It would also depend on what happened in Dickenson as well.
So, we will have to brief that as well [missed a few words]–
Judge Lind
Alright. I would appreciate that. Thank you.
Is there anything else that we need to address at this time with respect to the Article 104, defense?
Defense (Coombs)
No, your Honor.
Prosecution (Fein)
No, your Honor.
Judge Lind
Alright. Once again, the court is not going to rule on that until I receive the additional brief from the government.
Next on the agenda, we have the MRE 505(i) hearing.
I made findings yesterday afternoon that the government has met its burden to proceed into a closed session with respect to– some of that involves some of that involves the use of classified– potential classified information at trial.
We are going to begin by setting forth the issues on the public record. Major Fein, would you like to proceed?
Prosecution (Fein)
Yes, Ma’am. Your Honor, the United States motions the court for an in camera proceeding under MRE 505(i) to request the following five authorizations:
First authorize John Doe to testify under a pseudonym in an altered appearance.
(2) To limit discovery and cross-examination regarding information that can reveal John Doe’s true identity.
Authorize and proposed alternatives to John Doe’s background information for the defense to be able to place John Doe in the proper setting as a witness.
Limit discovery and cross examination by precluding the defense from questioning John Doe regarding his training for this specific mission, preparation for the mission, or details of the mission.
Execution outside of the scope of direct examination solely focused on evidence collection and authentication.
And finally, to authorize John Doe’s testimony on offsite secure location.
Your Honor, further to this motion the secretary of defense claimed a classified information privilege over information related to the identity of John Doe.
And, the acting director of the Central Intelligence Agency is claimed a classified information privilege over information related to the still classified detail with Osama bin Laden raid.
At this time your Honor, the United States request the court to move into a closed session.
Judge Lind
[Missed a few words] open session, government if you hear anything going where we are not suppose to go, Mr. [missed, phonetically sounds like ‘Pray-ther’, probably the Court Security Officer] same thing let me know.
Prosecution (Fein)
Yes, Ma’am.
Defense (Coombs)
Well, Ma’am. For the benefit of the government, Mr. [phonetically sounds like ‘Pray-ther’, probably the Court Security Officer] sure– I intend to do my entire argument in open court. I don’t anticipate anything I am going to say will require us to go into closed session. I’ll speak slowly [missed word].
Judge Lind
Actually, why don’t you do this– maybe, is there a way to turn that podium around so Mr. [phonetically sounds like ‘Pray-ther’, probably the Court Security Officer] can see you a little bit?
Defense (Coombs)
There is not, your Honor.
Judge Lind
Okay. You’re good? Good.
Defense (Coombs)
Your Honor, the government believes apparently that due to claiming privilege over Mr. Doe’s identity, and over some still, I guess, classified information regarding the UBL raid, that the defense is not even entitled to even conduct a pre-trial interview of Mr. Doe.
And that has been the defense’s main problem so far, because there has been no case that has been cited by the government that would support such a proposition.
And, in fact, if the court looks at Lonetree– a case the government has cited throughout its 505(i) filing– the appellant in Lonetree was permitted to conduct a pre-trial interview of the Mr. Doe witness.
Judge Lind
Was there a privilege claim in Lonetree?
Defense (Coombs)
Yes, your Honor. And the issue there–
Judge Lind
Is it to the same extent– the same extend that is claimed here?
Defense (Coombs)
At least from the identity– the same issue of if they didn’t want to disclose the identity of Mr. Doe to the defense or background information.
And if the court– just so you have the ability– it’s under footnotes 12 and 13– well, not 12 and 13, no– but, in my Westlaw print out it’s– it’s under 12 and 13 just below the holding, where they talk about the defense conducting a pretrial interview of Mr. Doe–
Judge Lind
Let’s– wait– before we get there, let’s talk about what’s– I have page– I think I have the Westlaw print out too. I am on page 12. Where– where are we?
Defense (Coombs)
On page 15, Ma’am.
Judge Lind
Page 15. Okay.
Defense (Coombs)
It starts with ‘the only time that classified information concerning John Doe’s observation of the KGB agent became relevant.’
Judge Lind
Okay– wait– Let me do this.
May I hand you my copy of the case and you just point out where we are talking about. [Defense takes her copy of the case.]
Okay, Mr. Coombs, please don’t read my notes. Let’s just find this–
Defense (Coombs)
I’m not reading your notes, Ma’am. I [missed a few words] can’t imagine why the print out from both Westlaw’s can be so different.
Prosecution (Fein)
Ma’am if I may? There is two Lonetree’s. There’s a Navy Marine Court Report and there is CAAF [missed a few words]
Defense (Coombs)
Okay. That maybe [missed word].
Judge Lind
Okay I have the CAAF report.
Defense (Coombs)
Yeah, this is. I’ll just provide– I am sorry this is the Navy Marine Court.
So, it is on– if you print out Westlaw there, it would be page 15 Ma’am.
Judge Lind
Okay.
Defense (Coombs)
And, what they say there is the only time classified information concerning John Doe’s observation of the KGB agent became relevant was when the appellant tried to impeach John Doe concerning a prior existing statement that he made during a pretrial interview with the defense investigator.
So, the defense’s position is that Pfc. Manning has a 6th Amendment right to confront and thoroughly cross examine any government witness.
The fact that a privilege has been claimed over a government witness, and in this case Mr. Doe’s identity and the apparently certain facts from the raid, may limit what we are permitted to speak to Mr. Doe about, but it certainly does not limit our pretrial access to him.
It is unclear when the government made its decision to call Mr. Doe as a witness. But, what is clear is that they waited until the 505(i) filing to add him to their witness list.
And due to that decision obviously the defense has never had an opportunity to interview Mr. Doe.
And yet, now we are in the position of having to respond to a 505(i) filing, without being able to interview the witness.
Mr. Doe should have been treated like any other government witness that we have interviewed, where they have told the government witness, ‘Look here is your left and right boundary as to what you can say to the defense.
If they ask you about anything over here or anything over here, you tell them, “I can’t answer that.”‘
And, then we would have been permitted to interview Mr. Doe. And, at that point, we could have established certain testimonial infirmities.
And that is where the defense believes the pretrial access is a requirement.
Judge Lind
Let me ask you a question, defense, if I go forward and I rule in your favor if there any objection to a telephonic interview?
Defense (Coombs)
No, your Honor. No objection to that. And in fact, our position is it puts us in an almost per se ineffective assistance of counsel position not to do an interview– pretrial interview of a government witness.
And just show up at the day of court-martial and go, ‘Well, I hope I get something right.’
Judge Lind
Well, it wouldn’t be an ineffective assistance of counsel if I ordered that you couldn’t do it, right?
Defense (Coombs)
I would say I was ineffective. Maybe it wouldn’t be ISE for an appellate court.
But, the reason why– as I said the testimonial infirmities– in this issue here we’ve got Mr. Doe who is going to come testify about certain observations that he made.
And, whatever witnesses testify about observations, now the issue of testimonial infirmity comes into play.
So, for example, is there are any non-memory issues with Mr. Doe. Does Mr. Doe have any memory gaps? Or any known issues with his memory. This would obviously go to the accuracy of the facts that he could recall.
And, certainly if he is testifying about observations that would be something that the defense should be permitted to cross examine– if he is suffering from any memory problems in order to undercut his testimony.
If he does have memory problems, has anything been used to try to refresh his memory.
Because he is testifying about observations, what other factors may undercut his ability to make certain observations: timing, lighting– what issues were going on at the time that he apparently grabbed the media.
Whether Mr. Doe has personal knowledge as to all the matters that he is testifying to– or is he relying upon what other people told him regarding a certain fact?
The government, because they only gave us Mr. Doe name– they haven’t given us anything else, we don’t know is any other information out there that could be used by the defense for the purpose of attacking Mr. Doe’s credibility. There’s MRE 608(a) and (b).
Information that we would know if we interviewed the witness and asked him about certain things like: Does he have an Article 15– the Article 15 untruthfulness– that would be a piece of information that we could use to undercut his credibility.
Whether there is any information after interviewing him, that would show a motive to fabricate or a bias or a prejudice under MRE 608(c).
It’s unlikely but whether or not he has any prior conviction that would qualify under MRE 609.
This is more likely, ‘What previous statements has he made?’ And is there any prior inconsistent statements based upon what he is currently going to testify to that the defense should have, under MRE 613 in order to, again, undercut his credibility.
These are just some of the issues that a pretrial interview would allow the defense to explore and to demonstrate for testimonial infirmities.
Now the defense should also be permitted to question Mr. Doe concerning facts surrounding the collection of the three pieces of digital media, such as: Where were the items located? How were the items found? What was the condition of the items when they were found? Whether he was the only person who collected the information? What did he– did he decide to collect some information and not other information? How much was collected? Is there anything other than the three pieces of digital media collected that discuss information from WikiLeaks? Was this information in an area that indicated it was not important, such as again, I doubt it, but was it marked in a collection bin saying this stuff is not important to us– it’s been review?
These are facts surrounding the event, and the government said there are still some classified facts regarding the UBL and the defense would surmise that has to be in their ex parte filing to the court of what those facts are.
And the reasons why I would say that is because the raid has been well documented. You have a book–
Prosecution (Fein)
Ma’am, objection. This is why we said we we needed to go to a closed session your Honor.
United States Government does not necessarily acknowledge publicly formally– just because a book is written by an individual– just because a movie is made– and now the defense wants to move into this area and make an argument, doesn’t allow the government to sit here and rebut it until we moved to a closed session.
Judge Lind
Alright, why don’t we [missed word] the argument in the closed session.
Defense (Coombs)
Okay. On that point, I think the president of the United States has acknowledged it, but–
Judge Lind
Is the government arguing that the President of the United States has never acknowledged that the raid occurred?
Prosecution (Fein)
No, Ma’am.
The President of the United States did announce that the raid occurred, but the details of who was on the raid and that type of information in not necessarily publicly acknowledged.
It is clear the defense is trying to go down that road right now. [Missed a few words] session.
Defense (Coombs)
And, that is not what I am trying to do your Honor.
Judge Lind
Well, let’s go slowly. Mr. [phonetically sounds like ‘Pray-ther’, probably the Court Security Officer] be waving your hand in the air if you see anything we need to stop here.
Defense (Coombs)
What I was going to say was, because there has been a book about it, and there has been a movie about it– detailing the raid, then the government should have to in their filing that they didn’t already– they should have an ex parte filing indicate what facts from the raid are still classified that Mr. Doe cannot testify to.
Prosecution (Fein)
Ma’am, this is– this is the exact point I am trying to make.
The defense is trying to– trying to tell the court– is trying to substantiate that a book written by a citizen of the United States and a movie made– not by the government– somehow is legit.
And that is why the government cannot argue one way or another on this. The defense is using that argument assuming that the government has sanctioned those two [missed a few words].
Judge Lind
Major Fein, we will be moving into closed session and the government can put its views fully on record.
Prosecution (Fein)
Yes, Ma’am.
Defense (Coombs)
And, I guess again, that is not my position.
My position is just that, Ma’am, the government in their filing, unrelated to everything else– their filing they should indicate what facts are still classified from the raid.
And, let’s say there are fifteen of them.
So, those fifteen facts would be the clear facts that the government is saying under 505(i) should not be shared with the defense and are not relevant and material– or relevant and necessary depending on when the witness testifies.
But that also would give a left and right boundary for what Mr. Dow can talk with us about.
So, if the facts are not one of those fifteen facts that is still classified then it should be fair game for us to talk to Mr. Doe.
So, using my example, let’s say, what is not still classified is where the items were found. So, I should be permitted to go to Mr. Doe on the telephone, ‘Mr. Doe, where did you find those items?’ ‘Well, I found them in a trash can.’ ‘Okay. Where was the trash can located?’ ‘In front of the door.’ ‘And, was there anything on top of the items?’ ‘Yes, there was.’ ‘What else was on top of them?’ You know, so– it could show some facts that the defense could argue for favorable evidence for us.
If that is still a fact that is classified, then the government should be telling the court that specific fact and the reason why and it could be just as simple as privilege has been claimed.
Once we talk to Mr. Doe, we’ll know whether or not there are certain facts about him that we believe are relevant and necessary and be able to articulate that to the court or we will be able to know based upon talking to him and when he says, ‘I can’t answer that question.’
We’ll be able to know what facts we believe are relevant and necessary to argue again that you know, your Honor, that you should require the government to allow us to go into them.
But until we speak to him, we can’t do that. And, so that is just the defense’s position. We should be allowed to do a pretrial interview– Mr. Doe should know what his left and right boundaries are.
And, based upon that after speaking to him, we might not have a problem with, ‘Yes, we don’t need to know his identity.’ Or, once the government has complied with any Brady, Jencks, or Giglio requirements, which they haven’t at this point– or at least given us any notice that any of that exists, then we’ll be able to say, ‘Okay, we have no real issue with this. We might even stipulate this witness.’
Judge Lind
Alright, Mr. Coombs you cited a litany of factors that you would be seeking to do in a pretrial interview. I tried to take copious notes during that.
It would really benefit the court if you could just– you know, it doesn’t have to be a formal filing– just write down what you basically just said.
So, I have that in front of me and I can [missed word] think about it.
Defense (Coombs)
Yes your Honor, I will send that as an email to you today.
Judge Lind
Okay. Government is there anything you would like to address in open session?
Prosecution (Fein)
Yes, Ma’am.
Ma’am other than access to pretrial, the information that the– that litany of factors that the defense will provide written down– that United States contends that they should probably be that information be made available to them at some point, and that would be appropriate for cross examination.
And, in the filing actually, the defense has– the government said it would provide and Brady, Giglio, Jencks, any of the constitutionally protected information to the defense.
So, I mean, the government has already acknowledged that there entitled to that information and as the court knows in its ex parte filings, the government has proposed alternatives to some of it– and, actually the full information.
And, the government even notified the defense last night, although continuously we have a binder of Jencks material and Giglio material for the defense to inspect, we had material sitting in a binder for this witness and other witnesses already for the defense to look at.
Judge Lind
So, there is material in a binder about this witness?
Prosecution (Fein)
Well, no your Honor, there is material in a binder that would be– qualify as in a James or Giglio and Jencks material.
Judge Lind
Have I seen it?
Prosecution (Fein)
Not the Jencks portion, your Honor.
Judge Lind
Have I seen the Giglio portion [missed word]?
Prosecution (Fein)
To date– no, there is no Giglio in a binder, your Honor.
The Giglio has been presented to the court ex parte. So, everything– the constitutionally protected– I know we are going to litigate later the 6th Amendment right to confrontation.
But all of that the government is willing and is explained in the motion. And the defense is entitled to and should receive the evidence in its original form or some variation.
Judge Lind
Well what is the government objection to a defense telephonic interview, which wouldn’t reveal the identity of anybody– it would just be a voice?
Prosecution (Fein)
Well the problem your Honor, is, since the United States is claiming privilege over this DoD operator identity and certain background information and definitely information involving the actual military operation, there is no court there to mediate or arbitrate what’s an appropriate question within the scope of the privilege and what is not.
And so, if the defense is able to have just a phone call that [missed word]– that would conceivably be able to protect one of the issues that has been privileged and claimed about– the actual identity.
Sure, I don’t– we could even obfuscate the voice to not be able to identify the individual. But it still doesn’t address the content and how to protect the content.
Judge Lind
Defense, if you did a telephonic interview is there any objection to having a government representative present?
Defense (Coombs)
No, your Honor. And, in fact, every witness we have interviewed– and that is why Mr. Doe is the exception– every other government witness we have had a similar issue, and it’s been– there has been a government representative there– usually a legal counsel from that agency who is sitting there and stands up and says, ‘No, you can’t go into that.’
So, that is why this witness should be treated no differently, except maybe, telephonically.
Prosecution (Fein)
The United States contests that your Honor, and we can get more into that– why this witness is different.
I mean clearly it’s different just on the face that there has been a privilege invoked and personal and national security– personal safety, national security involved with this witness versus any other.
Judge Lind
Alright, then I assume the government in light of those general responses would like to discuss this in closed session?
Prosecution (Fein)
Yes, your Honor. Your Honor, before we go into closed session just for the record, the counsel would also like to have one of the trial counsel there in closed session be absent and another present once we go into closed session.
Judge Lind
Alright and who would that be?
Prosecution (Fein)
Captain Overgaard will be absent and Captain [missed but maybe Whyte?] will present.
Judge Lind
Alright, is there anything else that we need to address today in open court, before we recess for the next Article 39(a) session?
Defense (Coombs)
Nothing further from the defense, your Honor.
Prosecution (Fein)
No, your Honor.
Judge Lind
Alright how long of a recess before we move into the closed session?
And, Mr. Coombs, I really would– if you could do that email that would be helpful for me to have in the closed session. So, consider that when we are talking about the recess.
Defense (Coombs)
Okay, Ma’am. I actually– I have my phone if I am not restricted from having email access I can type that real fact and send it to you.
Judge Lind
Okay.
Prosecution (Fein)
Fifteen minutes, your Honor.
Judge Lind
Why don’t we make it twenty, just to be safe. Why don’t we say five after eleven to start. Does that work for both sides?
Prosecution (Fein)
Yes, Ma’am.
Defense (Coombs)
Yes, Ma’am.
Judge Lind
For members of the public, this concludes the open session of the court for this Article 39(a) session.
Once again, the next Article 39(a) session in this case is set to begin on 10 April 2013. Our usual start time is has been 09:30.
Do the parties wish to adhere to that start time?
Prosecution (Fein)
Yes, Ma’am.
Defense (Coombs)
Yes, your Honor.
Judge Lind
So, it will be then at 09:30 on 10 April 2013. Court is in recess.
ALL RISE
CLOSED SESSION FOR GOVERNMENT MRE 505(i) MOTION