Witness | US v Pfc. Manning, President Barack Obama

  • posted December 2, 2011

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.

President Barack Obama

President Barack Obama

Defense requested the testimony of President Barack Obama for the Article 32 Pretrial Hearing. According to defense filings, the Government objected, arguing the President was in “too important to be made available.”

Defense said in their 8 December 2011, Request to Compel the Production of Article 32 Witnesses that the President had provided statement(s) “that contradict[ed] those given by the OCA [Original Classification Authorities]…regarding the alleged damage caused by the unauthorized disclosures.”

Defense argued that the President’s testimony was “relevant in order to inquire into the issues of unlawful command influence and unlawful pretrial punishment in violation of Articles 13 and 37 of the UCMJ [Uniform Code of Military Justice].”

President Obama Declares Manning Guilty Before Trial

On 21 April 2011, the President met with 150 donors for his 2012 reelection campaign at the St. Regis Hotel in San Francisco, California. According to reports, “two dozen” donors coordinated a flash mob, holding “free Bradley Manning signs” while singing about the unlawful treatment of Pfc. Manning at the Quantico Brig. Secret Service agents reportedly “attempted to grab” signs while Speaker of the House, Nancy Pelosi, California Lt. Gov. Gavin Newsom, and President Obama “looked on.”

After the event, one of the protesters, Logan Price, spoke with the President.

Transcript by UK Friends of Bradley Manning

Obama: So people can have philosophical views [about Bradley Manning] but I can’t conduct diplomacy on an open source [basis]… That’s not how the world works.

 

And if you’re in the military… And I have to abide by certain rules of classified information. If I were to release material I weren’t allowed to, I’d be breaking the law.

 

We’re a nation of laws! We don’t let individuals make their own decisions about how the laws operate. He broke the law.

 

[Didn’t he release evidence of war crimes?]

 

Obama: What he did was he dumped…

 

[Isn’t that just the same thing as what Daniel Ellsberg did?]

 

Obama: No it wasn’t the same thing. Ellsberg’s material wasn’t classified in the same way.

The Pentagon Papers whistleblower, Daniel Ellsberg, leaked “3,000 pages of historical analysis and 4,000 pages of original government documents in 47 volumes” classified as TOP SECRET and ‘Sensitive’. According to both the 5 July 2010 and 1 March 2011 charge sheets, however, Pfc. Manning did not leak anything classified above SECRET, and some charged items were not even classified:

The 12 July 2007 Baghdad, Iraq airstrike video is not classified.

The United States Forces – Iraq Microsoft Outlook/SharePoint Exchange Server Global Address List (GAL) is not classified.

The US Department of State Net Centric Diplomacy cables are marked SIPDIS, which means they are intended for distribution outside the Department of State on SIPRNet, the Secret Internet Protocol Router Network, which only goes up to information classified at SECRET.

The Combined Information Data Network Exchange (CIDNE) Iraq and Afghanistan Significant Activity Reports (SigActs) are marked SECRET or below.

The United States Army Counterintelligence Center Cyber Counterintelligence Assessments Branch Department of Defense Intelligence Analysis Program’s WikiLeaks.org – An Online Reference to Foreign Intelligence Services Insurgents Or Terrorist Group is classified at SECRET.

CIA Red Cell Special Memorandum Afghanistan: Sustaining West European Support for the NATO-led Mission–Why Counting on Apathy Might Not Be Enough is marked CONFIDENTIAL, below SECRET.

The Guantanamo detainee profiles are marked SECRET.

The classified Microsoft PowerPoint Presentation on the original 5 July 2010 charge sheet is alleged to have been obtained on SIPRNet, which only contains information classified up to SECRET. Special Agent Shaver, Army Computer Crimes Investigative Unit (CCIU) testified that the Microsoft PowerPoint file, “Farah.brief.final.version1”, alleged to have been downloaded by the Alienware .22 SIPRNet computer on 10 April 2010 at 13:12:24 hours, was authorized for download on SIPRNet machines, which means the document would have to be SECRET or below.

In like manner to “Collateral Murder“, Specification 11 of Charge II on the 1 March 2011 charge sheet does not identify the file “BE22PAX.zip” containing a video named “BE22 PAX.wmv”, said to be the Garani video, as classified.

According to the Office of the Director of National Intelligence (ODNI), 4.2 Million federal employees, contractors, and consultants have security clearances for SECRET information.

Classification and Harm

In their December 2, 2011 Request for Article 32 Witnesses defense requested the testimony of Witness No. 36, the President of the United States, Barack Obama:

XXXXXXXXXX [President Barack Obama] The defense requests the presence of XXXXXXXXXX [President Barack Obama] in order to discuss the issue of Unlawful Command Influence (UCI). Under Rule for Courts-Martial 405(e), the defense is entitled to explore the issue of UCI. Under the Uniform Code of Military Justice (UCMJ), a superior officer in the chain of command is prohibited from saying or doing anything that could influence any decision by a subordinate in how to handle a military justice matter. As the XXXXXXXXXX [President] made improper comments on 21 April 2011, when he decided to comment on PFC Manning and his case. On that date, he responded to questions regarding PFC Manning’s alleged actions by concluding that “We’re a nation of laws. We don’t let individuals make their own decisions about how the laws operate. He [PFC Manning] broke the law.” The comments by XXXXXXXXXX [President Barack Obama] are UCI [Unlawful Command Influence]. The defense intends to question XXXXXXXXXX [President Barack Obama] on the nature of his discussions with members of the military regarding this case and whether he has made any other statements that would either influence the prosecution of this case or PFC Manning’s right to obtain a fair trial. In additional to the UCI [Unlawful Command Influence] issue, XXXXXXXXXX [President Barack Obama] will testify about his views on the Afghanistan SIGACTs released by WikiLeaks. He will testify that the leak did not reveal any issues that had not already informed our public debate on Afghanistan. He will also testify that the Afghanistan SIGACTs point to the same challenges that led him to conduct an extensive review of the Afghanistan policy. XXXXXXXXXX [President Barack Obama] will also testify about the problem of over-classification within the government. Specifically, that he supported and signed into law the Reducing Over-Classification Act on 7 October 2010. Additionally, he will testify, that on his first full day in office , 21 January 2009, he issued two memoranda for the head of Executive Departments and Agencies that were related to transparency in government. The first ) memorandum focused on the administration of the Freedom of Information Act (FOIA), and the second focused on transparency and open government. XXXXXXXXXX [President Barack Obama] will testify that the transparency memorandum he wrote committed the administration to “an unprecedented level of openness” and to the establishment of “a system of transparency, public participation, and collaboration” XXXXXXXXXX [President Barack Obama] will testify that on 8 December 2009 his administration released a third memorandum – an Open Government Directive (OGD). The OGD included detailed instructions for departments and agencies on how they are to “implement the principles of transparency, participation, and collaboration.” Finally, on 29 December 2009, XXXXXXXXXX [President Barack Obama] will testify, that he issued Executive Order 13526 in an attempt to improve the system for classifying, safeguarding, and declassifying national security information, including the establishment of the National Declassification Center.

The Article 32 Investigating Officer, Lt. Col. Paul Almanza, denied the defense’s request for the testimony of the President. On the first day of the Pretrial Hearing Almanza said the “significance” of the President’s testimony did “not outweigh military and governmental operations.”

In their 13 March 2012 Reply to Prosecution Response to Defense Motion to Compel Depositions, defense said that the “Government wants to treat the OCAs’ [Original Classification Authorities] determinations as the final statement regarding whether something ‘could’ cause damage.” Defense argued that “[a] classification determination is not conclusive on the question of whether information ‘could’ cause damage to the United States or be used to the advantage of any foreign nation,” an element of Specifications 2, 3, 5, 7, 9, 10, 11, 13, 14, 15 of Charge II for the both espionage, 18 USC 793(e), and unauthorized access, 18 USC 1030(a)(1).

While arguing that an Original Classification Authorities’ determination is “merely probative of the issue regarding whether information could cause damage to the United States,” defense cited HR 553, The Reducing Over-Classification Act by President Barack Obama on 7 October 2010, to emphasize the President’s acknowledgment of the problem of over-classification.

On 29 March 2012, the military prosecutor filed a Motion to Preclude the Defense from Mentioning Actual Damage on the Merits. “On the merits” refers to the part of the trial concerning the facts of the alleged criminal acts and their charged elements.

On 12 April 2012, Defense filed a Response to Prosecution Motion to Preclude Reference to Actual Harm or Damage. Defense argued in part that, “The Government cites United States v. Morison, 844 F .2d 1057 (4th Cir. 1988) for the proposition that ‘the government must only prove “that [the compromised information] was in fact potentially damaging.”‘(Government emphasis). The Government has failed to cite the more important part of the Morison holding:

…This means, as I assume we reaffirm today, that notwithstanding information may have been classified, the government must still be required to prove that it was in fact “potentially damaging . . . or useful,” i.e., that the fact of classification is merely probative, not conclusive, on that issue, though it must be conclusive on the question of authority to possess or receive the information. This must be so to avoid converting the Espionage Act into the simple Government Secrets Act which Congress has refused to enact.

At the 6 June 2011 Article 39(a) Session, the Judge directed trial counsel to submit targeted briefs on harm:

Judge Lind

 

..Government has already submitted a motion to preclude to mentioning actual damage on the merits. I have that motion, I am taking it under advisement… I would like more targeted briefs from the parties on that issue. Primarily with respect to what the defense said they were going to use the information for. And particularly with response to the example that you gave on [missed] means likely. In that kind of scenario, the defendant would be, you would look at the injury. The person could see the fists caused that injury, and what I am looking for is case law…one way or another…ideally on the offenses issue. But if not on similar type offenses. I didn’t see anything on the submissions on either side that really addressed that issue. So, if I could get you to do a little more digging to see if there is anything out there, basically as a result of the “What happened?” being relevant to “What could happen?”

 

…is the Government, since you precluded mention of that actual damage of merit, is the Government making a claim of producing any actual damage evidence on the merits.

 

Prosecution (Fein)

 

No, your Honor. None.

 

(30 second pause.)

 

Your Honor. May I clarify from the perspective of damage assessments? Then, “No.” But, depending on the definition of damage, we do have to prove prejudicial, discipline, certainly it is discrediting. So it could be seeing immediate damage to the unit, or perceptions of the Army or the unit that could fall under the umbrella of damage. So under Clause 1 [offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces] , 2 [offenses involve conduct of a nature to bring discredit upon the armed forces] of Article 134…what would normally be any other Court Martial, then yes. But, not damage or damage assessments that would go to actual harm of national security. We will definitely put that in our brief.

On 21 June 2012, defense filed a Targeted Brief on Absence of Harm with the Court. Defense argued in part that “[f]actual assertions or speculative statements regarding the damage caused by the alleged leaks (or, more accurately, the absence of damage) are relevant for the impeachment of Government witnesses who claim that the leaks ‘could’ cause damage.”

At this time, the author does not know when the Government filed its targeted brief on harm (Appellate Exhibit 158) or if and when it filed a reply to the Defense’s Response to its original motion. On 19 July 2012, oral arguments were given by trial counsel at the Article 39(a) Session.

At the 19 July 2012 Article 39(a) session the Judge ruled in part on the Government’s Motion to Preclude the Defense from Mentioning Actual Damage on the Merits. Lind ruled that actual damage was not probative to either the element of of Specification 1 of Charge II, “having knowledge that intelligence published on the internet is accessible to the enemy,” or the element of charges for the Espionage Act, 18 USC 793(e), or unauthorized access, 18 USC 1030(a)(1), “…with reason to believe that such info could be used to the injury of the US or the advantage of any foreign nation” for Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II (emphasis added).

Judge Lind cited the following case law in her ruling. Rule 401. Scope of probative evidence in military commissions; Rule 403. Exclusion of probative evidence on grounds of prejudice, confusion, or waste of time; Rule 410. Inadmissibility of pleas, plea discussions, and related statements; US v. White, 606 F.3d 144 (4th Cir. 2010) concerning “a conviction for assault and battery in VA does not require ‘physical force’ as an element of the crime”; Rules for Court-Marital 703(b) Right to witnesses.; US v. Diaz concerning the ‘mens rea requirement’ of the Espionage Act. “‘Willfulness,’ in the context of § 793(e), arises not in the context of bad intent, but in the conscious choice to communicate covered information.”

Judge Lind ruled that the elements of the relevant charges relate to a state “on or before” the alleged unauthorized disclosure, and that “what occurred after is not knowable.” Judge Lind ruled that actual damage is “not knowable” to the Original Classification Authority, therefore actual damage is “not relevant to impeach to the Original Classification Authority.” She deferred a final ruling of the Government Motion to Preclude Harm on the Merits, saying that actual harm or damage would not be included on the merits without the permission of the Court.

White House Statements: Lack of Damage & WikiLeaks, not a Media Organization, Criminals

The President’s National Security Advisor, General James Jones, condemned the publication of the Afghan War Logs, saying they “could put the lives of Americans and our partners at risk” and threaten the “national security” of the United States. White House Press Secretary, Robert Gibbs repeatedly stressed that most of the information was “already known.”

President Obama reiterated the lack of damage and the threat to operational security from the Afghan War Log release:

“While I’m concerned about the disclosure of sensitive information from the battlefield that could potentially jeopardize individuals or operations, the fact is these documents don’t reveal any issues that haven’t already informed our public debate on Afghanistan; indeed, they point to the same challenges that led me to conduct an extensive review of our policy last fall.”

At the 18 October 2012 Article 39(a) Session, Judge Lind ruled that the Court would take Judicial Notice of the President’s 27 July 2010 statement from the Rose Garden and published on the White House Web site on the lack of damage from the release of the Afghan War Logs, for use during the sentencing portion of the trial – since actual damage is precluded from the trial on the merits without the Court’s permission – because the President’s statement is made by a “party opponent” to the the accused in United Stated v. Pfc. Bradley Manning; is a statement of fact; the statement was likely checked by the Government before it was given; was given to the press with the intention of wide dissemination to the public; and the President’s statement had the “hallmarks of a testimonial statement.”

The White House was keen to differentiate WikiLeaks from its media partners, even pressuring media organizations to stop calling WikiLeaks a “whistleblower web site.” Even Voice of America reporters were instructed that they could not report directly on WikiLeaks releases. The ban was soon revoked.

“WikiLeaks made no effort to contact the White House,” said the President’s National Security Advisor. The “United States government learned from news organizations that these documents would be posted,” Jones said.

The White House Press Secretary said, the White House “got questions from Der Spiegel and that he “personally met with The New York Times” accompanied by Tommy Vietor, the National Security Council spokesman; and Ben Rhodes, the Deputy National Security Advisor for Strategic Communications Gibbs said he “passed a message through the writers at the New York Times to the head of WikiLeaks to redact information that could harm personnel or threaten operations or security.”

The White House Press Secretary repeatedly stressed that the New York Times handled the publication of the Afghan War Logs “in a responsible way.” Whereas WikiLeaks, “has the potential to put people – our troops, those that cooperate with our efforts – into harm’s way,” said Gibbs:

[G]o back to the initial release of documents and find what the spokesman for the Taliban said specifically about names that they found in those documents, that they knew how to deal with those individuals. I think we’re clear on what that means.

Two weeks later, Defense Secretary Robert Gates wrote a letter to Senator Carl Levin, Chair of the Armed Services Committee, citing findings by the Defense Intelligence Agency’s (DIA) Information Review Task Force (IRTF): “the review to date has not revealed any sensitive intelligence sources and methods compromised by this disclosure.”

At the 18 October 2012 Article 39(a) Session, Judge Lind ruled that the Court would take Judicial Notice of Defense Secretary Gates’ letter to Senator Levin – for use in during sentencing, since actual harm or damage is precluded from the merits without the Court’s permission – citing Rule 801(d)(2)(d): The statement is not hearsay; was given by a party opponent of the accused in United States v. Pfc. Bradley Manning; and the statement “is one the party manifested that it adopted or believed to be true.”

Lock in step with the White House, the New York Times was also keen to differentiate itself from WikiLeaks.

The New York Times described Julian Assange, editor-in-chief of WikiLeaks, as their “elusive, manipulative and volatile” source. Assange, they wrote, was “openly hostile” to The Times, The Guardian”, and innocent Afghans.

On 29 July 2010, the New York Times reported:

A search by The New York Times through a sampling of the documents released by the organization WikiLeaks found reports that gave the names or other identifying features of dozens of Afghan informants, potential defectors and others who were cooperating with American and NATO troops.

A year after the Defense Secretary wrote to Senator Carl Levin that no “sensitive intelligence sources and methods compromised by the disclosure” – the New York Times reported:

Defense Department spokesman said American military officials were not aware that any Afghan citizen had been harmed as a result of being named in Afghan war documents published by WikiLeaks last year, despite Taliban threats to punish people who provided information to American troops.

“There have been books, there have been previous WikiLeaks revelations related to Afghanistan. So we’ve weathered those kinds of revelations before as it relates to our relationship with President Karzai and the Afghan government,” said the Deputy National Security Advisor for Strategic Communications, Ben Rhodes to journalists en route to Bagram Air Base, Afghanistan.

When asked whether WikiLeaks was part of the investigation into improper leaking of classified information on 26 July 2010, the White House Press Secretary said: “There is an ongoing investigation as to this leak, yes.” “The New York Times didn’t publish the documents; WikiLeaks published the documents,” said Gibbs.

The Press Secretary comments came a day before Defense Secretary Gates says he called FBI Director Robert Mueller, to join the case and broaden the investigation into alleged unauthorized disclosure to WikiLeaks.

However, Special Agent Mark Mander from the Army Computer Crimes Investigative Unit testified that Neil MacBride, US Attorney for the Eastern District of Virginia in charge of the Grand Jury empaneled in Alexandria, VA and investigating Assange, WikiLeaks associates, and others, was counseling the Department of Defense’s criminal investigation from the beginning.

By early August 2010, Col. Stephen Henley, notable for being appointed President of a Guantanamo military commission, designated a Justice Department prosecutor, Lt. Col. Paul Almanza, to be Pfc. Manning’s Pre-Trial Investigating Officer.

The week of 21 to 27 November 2010, James Clapper, Director of National Intelligence (ODNI) and others briefed President Obama “on the size the scope of the information that was to become public” with the WikiLeaks release of US State Department cables in the President’s Daily Intelligence Brief (PDB).

At a press briefing on 29 November 2010, the White House Press Secretary said that WikiLeak’s releases of State Department cables would not impact US foreign policy. The day before, the White House Press Secretary contradicted himself and said the release could “deeply impact not only US foreign policy interests, but those of our allies and friends around the world.”

The White House Press Secretary also said that “WikiLeaks and people that disseminate information to people like this are criminals.” In answer to questions about whether the administration would take legal action against WikiLeaks, Gibbs said, “Obviously there is an ongoing criminal investigation about the stealing of and the dissemination of sensitive and classified information. Secondly, under the administration – or I would say – should say administration wide, we are looking at a whole host of things, and I wouldn’t rule anything out.”

The White House Press Secretary described the US investigation into WikiLeaks releases as “administration-wide”. The same day, Eric Holder, US Attorney General at the Department of Justice, confirmed the existence of a Grand Jury criminal investigation into WikiLeaks. Holder said the investigation had the “highest level involvement in the United States Department of Justice.”

The Attorney General’s announcement and the White House Press Secretary’s comments also came a day after the Director of the Executive Office of Management and Budget (OMB), Jacob Lew, the current White House Chief of Staff, sent a “Memo for the Heads of Executive Departments and Agencies regarding WikiLeaks – Mishandling of Classified Information” stating the “significant irresponsible disclosure by WikiLeaks has resulted in significant damage to our national security.

Current and Projected National Security Threats to the United States

At a 16 February 2011 hearing before the Senate Select Committee on Intelligence, which has itself called for the prosecution of Assange under the Espionage Act and has oversight on the US Intelligence Community (IC) of 16 departments, bureaus, and agencies – Director of National Intelligence, James Clapper, the head of the “IC”, said that WikiLeaks disclosures represented a current and projected national security counterintelligence threat to the United States. Clapper added, “From an intelligence perspective, these disclosures have been very damaging.”

“The spectrum of threats includes espionage, cyber intrusions, organized crime, and the unauthorized disclosure of sensitive and classified US Government information, a notable recent example being the unlawful release of classified US documents by WikiLeaks.”

National Security Staff’s Interagency Committee Review

In their 10 May 2012 Motion to Compel Discovery No. 2 and 2 June 2012 Reply to Prosecution Response to Supplement to the Defense Motion to Compel Discovery No. 2, Manning’s defense sought any Brady material, which holds “that due process requires the government to turn over exculpatory evidence in its possession“; Jencks material, which holds “that in a criminal prosecution, the government may not withhold documents relied upon by government witnesses, even where disclosure of those documents might damage national security matters”; and Williams material, which pertains to discovery rights of defendants in military Courts when “the government is considered to have possession of information that is in the control of agencies that are ‘closely aligned with the prosecution'” that concerned “the alleged leaks in this case by Mr. Russell Travers, National Security Staff’s [NSS] Senior Advisor for Information Access and Security Policy.” Defense also sought “any investigation or review from the Interagency Committee Review” that Travers headed for the NSS.

Travers was a senior official at the National Counterterrorism Center (NCTC), a part of the Office of the Director of National Intelligence (ODNI), headed by James Clapper, the primary advisor to the President and the National Security Council on intelligence matters related to national security.

The National Counterterrorism Center (NCTC) conducts “strategic operational planning for CT [Counterterrorism] activities across the USG [US Government], integrating all instruments of national power, including diplomatic, financial, military, intelligence, homeland security, and law enforcement.” The NCTC also maintains “a consolidated repository of information on international terrorist identities and provides the authoritative database supporting the Terrorist Screening Center [TSC] and the USG’s [US Government’s] watch listing system.” Travers was the senior official at the NCTC responsible for maintaining that database.

On 1 December 2011, the President’s National Security Advisor, then General James Jones, tapped Travers to “serve as the National Security Staff’s Senior Advisor for Information Access and Security Policy.” The White House announced that Travers would “lead a comprehensive effort to identify and develop the structural reforms needed in light of the WikiLeaks breach.” Travers was responsible for advising the National Security Staff (NSS) on “mitigation measures” and “policy recommendations related to the breach” (emphasis added). Travers was also responsible for “facilitating interagency discussions” and “developing options for” both Deputies and Principals of the National Security Council (NSC) – including joint-investigation partners and National Security Council Principals: US Attorney General at the Department of Justice, Eric Holder; Secretary of State Hillary Clinton; and Secretary of Defense Robert Gates; as well as the President on both technological and policy to limit the possibility of the another such leak. (emphasis added).

In their 22 November 2011, Request for the Production of Article 32 Evidence, defense sought a report by Travers and the National Security Staff’s Interagency Committee Review:

russell-travers-national-security-staff-senior-advisor-for-information-access-and-security-policydetailing the rather benign nature of the leaks and the lack of any real damage to national security. The defense requests a copy of this review and any assessment given, or discussions concerning, the WikiLeaks disclosures by any member of the government to XXXXXXXXXX [Russel Travers, National Security Staff Advisor for Information Access and Security]. (emphasis added)

National Security Staff Interagency Review, the Department of State and the Department of Justice

On 1 December 2011, defense sought to compel “any e-mail, report, assessment, directive, or discussion by XXXXXXXXXX [Russel Travers, National Security Staff Advisor for Information Access and Security] to the Department of State or Department of Justice concerning this case.”

The day that the White House Press Secretary called WikiLeaks and “people that disseminate information” to WikiLeaks “criminals” and affirmed a whole-of-government investigation into Julian Assange and WikiLeaks, Secretary of State Hillary Clinton said,

“WikiLeaks’ deliberate disclosure of these diplomatic cables is nothing less than an attack on the national security of the United States, as well as that of dozens of other countries…Let there be no doubt: the individuals responsible are going to have blood on their hands. I stand in full support of the Obama Administration’s condemnation of WikiLeaks for these disclosures. I also urge the Obama Administration – both on its own and in cooperation with other responsible governments around the world – to use all legal means necessary to shut down WikiLeaks before it can do more damage by releasing additional cables.”(emphasis added)

As early as August 2010, Phillip Shenon reported that the Obama administration was already “pressing Britain, Germany, Australia, and other allied Western governments to consider opening criminal investigations of WikiLeaks founder Julian Assange and to severely limit his nomadic travels across international borders, American officials say.”

One month before Pfc. Manning Pretrial Hearing at Fort Meade, Secretary of State Clinton said publicly, “when an organization – and you mentioned WikiLeaks – when an organization steals information, which is what happened, that is – just because they put it on an internet doesn’t make it any more right than if they had passed it out on a street corner.”

As I have written elsewhere, the author of the Department of State’s August 2011 “draft” damage assessment “coordinates counterintelligence and sensitive law enforcement operations and policy” for DoS’ self-described “global law enforcement agency,” the Diplomatic Security Service (DSS).

DSS is a partner in the US joint investigation of WikiLeaks with the Department of Defense and the Department of Justice.

According to former Department of State spokesperson, PJ Crowley, Diplomatic Security Service (DSS) at the Department of State was responsible for handling all the forensic analysis of the hard drives that arrived from Iraq.

According to the 15 March 2011 Article 39(a) Session, despite Army Criminal Investigative Command’s (CID) September 2010 preservation request for other hard drives from the T-SCIF at FOB Hammer, Iraq, and defense’s own preservation request for the same in September 2011, the Government notified the Court and defense that of the 181 drives identified belonging to the Second Brigade Combat Team, 10th Mountain Division, only the computers with a user profile for Bradley Manning were preserved.

The other computers, the Government said, the unit was free to discard and “DX” post deployment in September 2010. The Government was able to identify only 14 other computers post deployment from the T-SCIF by serial numbers, but of those 14 drives, two drives were completely inoperable, seven drives were wiped, and one drive was partially wiped.

The other hard drives are relevant to Manning’s defense, since the Government has charged Manning with unauthorized access based on his use of his access, an Acceptable Use Policy (AUP) which he may have signed – the Government apparently cannot find it; and Non Disclosure Agreements – Manning allegedly signed seven; and not because the Government alleges that Pfc. Manning bypassed technical restrictions.

The US Government’s “unauthorized access theory” Specifications 2 and 3 of Charge III, which pertain to 18 USC 1030(a)(1) are that Pfc. Manning placed Wget on “two separate systems.” Wget is a “computer program that retrieves content from Web servers, and is part of the GNU Project (a free software, mass collaboration project software announced on September 27, 1983, by Richard Stallman at MIT).” According to defense filings, “Although the program was not apparently officially authorized for the individual user, it was authorized for use on the Army Server components of the system.” Without the other hard drives, it is impossible to tell if other soldiers in the brigade added similar programs to their computers – installed as non-executable files on their desktop – or challenge the integrity of the charges against Pfc. Manning.

Captain Steven Lim, the Brigade S2, gave the analyst a link to Net Centric Diplomacy database via email with no password required in January 2010. Captain Lim testified, “I gave [the intelligence analysts a] link through email. Got from headquarters. They [headquarters] said pass along. Felt at time we were so focused on the ground, and needed bigger picture.”

Manning’s defense also sought and was reportedly denied the testimony of a Diplomatic Security Service agent, who was on the original Government’s witness list filed on 7 July 2010, two days after the Government filed its original charge sheet.

In addition to coordinating “counterintelligence and sensitive law enforcement operations and policy” for the Department of State and the Diplomatic Security Services; as well as compiling raw reports from the Global Chiefs of Mission and authoring the DoS’ “draft” damage assessment; Raymond McGrath, Director of Counter-Intelligence and Consular Support in the Bureau of Intelligence and Research is the DoS’ primary liaison with the Federal Bureau of Investigation, a partner in joint investigation of WikiLeaks.

McGrath is also the Department of State’s primary liaison to the National Counterterrorism Center, where Russel Travers, was Deputy Director in charge of the NCTC’s “authoritative database supporting the Terrorist Screening Center and the USG’s watch listing system” before the President’s National Security Advisor picked him to head the NSS’ Interagency Committee Review of WikiLeaks.

As it turns out, McGrath, is also the Department of State’s primary liaison to Terrorist Screening Center (TSC) – an inter-agency organization lead by the FBI and responsible for a “single database of identifying factors” about individuals suspected by the USG of involvement in terrorist activities.

The TSC maintains the “Terrorist Watch-list”, the “No-Fly List”, as well as the “Selectee List” – the later two being subsets of the Terrorist Screening Database (TSDB) used by the Transportation Security Administration – which associates and supporters of Julian Assange, Bradley Manning, and WikiLeaks have found themselves detained and interrogated by means of, including: David House; Jacob Appelbaum; Jennifer Robinson and with her experience on the “inhibited list“; and others.

Raymond McGrath reports to Catherine Brown, Assistant Secretary for the Bureau of Intelligence & Research (INR), and according to Brown’s testimony at the 7 June 2012 Article 39(a) Session, the Undersecretary for Management at the Department of State, Patrick Kennedy.

Two days after the White House Press Secretary called WikiLeaks and “people that disseminate information” to WikiLeaks “criminals” and affirmed a administration-wide investigation, the White House announced that the Department of State had commissioned a review of its “security procedures.”

The Department of State “draft” damage assessment and “security procedure” review was directed by the Undersecretary of Management, Ambassador Patrick Kennedy, and coordinated through the Bureau of Intelligence and Research, a member of the US Intelligence Community (IC), headed by the Director of National Intelligence, James Clapper.

At the July 19, 2012 Article 39(a) Session the Government prosecutor informed the Court that the Department of State was opposing a defense motion for discovery of DoS records via the military prosecutor and further DoS did not know which of their officials testified before the House Permanent Select Committee on Intelligence (HPSC/I) on December 7 and 9, 2010.

HPSC/I and the Senate Select Committee on Intelligence are responsible for oversight of the US Intelligence Community (IC). Within the State Department, the Bureau of Intelligence and Research (INR), is itself a member of the “IC”. INR is headed by Assistant Secretary Philip S. Goldberg who reports directly to the Secretary of State Hillary Clinton.

At the June 7, 2012 Article 39(a) session, Marguerite Coffey, former director of the Office of Management Policy, Right Sizing, and Innovation at the Department of State who supervised the WikiLeaks Mitigation Team, said that Patrick Kennedy briefed Congress about WikiLeaks in late November, early December 2010.

A congressional official, briefed by the State Department told Reuters “the administration felt compelled to say publicly that the revelations had seriously damaged American interests in order to bolster legal efforts to shut down the WikiLeaks website and bring charges against the leakers.”

Reuters reported that the internal USG [US Government] reviews said that cablegate and “tens of thousands of military field reports from Iraq and Afghanistan” had “caused only limited damage to U.S. interests abroad, despite the Obama administration’s public statements to the contrary.”

Further, a congressional aid who spoke to Reuters, and who was “familiar with the late 2010 [State Department Congressional] briefings,” said, “We were told (the impact of WikiLeaks revelations) was embarrassing but not damaging.”

The Bureau of Diplomatic Security Services at the Department of State is also under the authority of the Undersecretary for Management, Patrick Kennedy. Undersecretary Kennedy recently made headlines for his testimony before the House Committee on Oversight and Government Reform concerning the Obama administration’s response to the 11 September 2012 attack on the US Consulate in Benghazi and lack of security there despite multiple requests in the months leading to the attack: “On my honor,” Undersecretary Kennedy said, “no political pressure was applied to me in this case by anyone in the State Department, at the National Security Council or at the White House.”

In July and August 2010, the US State Department, under the direction of Undersecretary Patrick Kennedy, worked with the Department of Defense on the Defense Intelligence Agency’s (DIA) Information Review Task Force (IRTF) to identify “State Department material that was in WikiLeaks’ possession.” The Secretary of Defense, then Robert Gates, ordered the former director of the Defense Intelligence Agency (DIA), Lieutenant General Ronald Burgess, to stand up an Information Review Task Force (IRTF), to lead a comprehensive review in concert with interagency participants of the documents allegedly given to WikiLeaks.

The Information Review Task Force was a 24 hour per day operation, comprised of 80 people, largely “intelligence analysts” from the Defense Intelligence Agency (DIA), a member of the “IC”; USPACOM (United States Pacific Command); CENTCOM (US Central Command); the Federal Bureau of Investigation; and Army CID (Criminal Investigation Command); and USD(I) (Under Secretary of Defense for Intelligence), who is responsible for “[m]onitor[ing] and oversee[ing] investigations of unauthorized public disclosures of classified information throughout the Department of Defense or within DoD contractor facilities” and the “principal advisor and deputy to the Secretary and Deputy Secretary of Defense on matters relating to military intelligence.” The USD(I) also exercises oversight for the Defense Intelligence Agency (DIA), the National Geospatial-Intelligence Agency (NGA), the National Reconnaissance Office (NRO) and the National Security Agency (NSA).

The damage assessment by the DIA’s Information Review Task Force (IRTF) concluded “that all the information allegedly leaked was either dated, represented low-level opinions, or was commonly understood and known due to previous public disclosures,” and contradicted pubic statement’s by officials, which former Secretary of Defense, Robert Gates, himself stated were “fairly significantly overwrought.” According to defense, the results of the Information Review Tasks Force’s damage assessments also undercut the testimony of the Official Classification Authorities (OCAs) for the leaked documents. The Government also acknowledged that the Defense Intelligence Agency’s Information Review Task Force damage assessment contained “favorable material” for the defense.

Special Agent Troy Bettencourt a forensics examiner for civil and criminal interaction with Army CID was a Special Agent on the intrusion team assigned to the investigation. According to defense filings, Bettencourt “detailed the collection of classified information for the Information Review Task Force’s (IRTF) damage assessment.”

SA Bettencourt testified that WikiLeaks.org solicited “classified, decrypted” information” and explained the user flow for its anonymous submission system.

Bettencourt also testified that concerning the “value of information” WikiLeaks has dissension within their ranks: “Mr. Assange. …said folks, he demanded that they sign an NDA saying they would not disclose…to WikiLeaks. They said somewhere between 12 and 15 million. The valuation of information 12 million pounds [for everything they have].”

Two days after the White House Press Secretary called WikiLeaks and “people that disseminate information” to WikiLeaks “criminals” and affirmed administration-wide, the Department of State “suspended access to the Net Centric Diplomacy (NCD) database of diplomatic reporting, and its classified “ClassNet” web sites and SharePoint sites previously accessible through the Secret Internet Protocol Router Network (SIPRNet), while retaining access via the Joint Worldwide Intelligence Communications System,” which begs the question. If as SA Mander testified “[t]he State Department became involved immediately because of nature of information obtained in [the] chats” and, as PJ Crowley announced, the Department of State knew that WikiLeaks was in possession of their cables and had “been for many months reviewing the implications of this expected release,” why did it take the Department of State seven months to suspend access to the NetCentric database?

That same day, the US Attorney General confirmed the existence of a Grand Jury investigation into WikiLeaks that had “highest level involvement in the United States Department of Justice.” Holder also said:

With regard to all the tactics that we can do or can use to ameliorate the consequences of these actions I don’t want to get into those as well, but we will do everything that we can both to hold people accountable, and to minimize the harm that will befall American people.

According to defense filings:

“Under the cooperative investigation agreement, CID [Army Criminal Investigation Command] is the lead investigative agency with primary responsibility for coordinating all leads affecting the US Army, and DSS [Diplomatic Security Service at the Department of State] has responsibility for leads involving the DOS [Department of State]. The Federal Bureau of Investigation (FBI) later joined as a joint partner in the investigation with responsibility for providing counterespionage expertise, investigative support, and as the lead agency for all civilian related leads.”

While the Department of Justice and FBI, officially joined the investigation 28 July 2010, Special Agent Mark Mander from the Army Computer Crimes Investigative Unit testified that Neil MacBride, US Attorney for the Eastern District of Virginia in charge of the Grand Jury empaneled to Alexandria, VA investigating Assange, WikiLeaks associates, and others, was counseling the Department of Defense’s criminal investigation from the beginning.

As early as July 2010, Phillip Shenon reported, the “the Justice Department was weighing a range of criminal charges against Assange and others as a result of the massive leaking of classified US military reports from the war in Afghanistan.” In August 2010, US officials said they “want[ed] other foreign governments to consider the same sorts of criminal charges.”

By early August 2010, Col. Stephen Henley, notable for being appointed President of a Guantanamo military commission, designated a Justice Department prosecutor, Lt. Col. Paul Almanza, to be Pfc. Bradley Manning’s Pretrial Investigating Officer.

According to the testimony of SA Mander, investigators uncovered seven civilians thought to be doing “wrongdoing” who were being investigated by the FBI. Those individuals include the “founders, owners, or managers of WikiLeaks,” SA Mander.

“Private First Class Manning is a piece of the FBI File,” said lead US Government military prosecutor at the June 6, 2012 Article 39(a) Session. The FBI file, Major Fein said, was “42,135 pages or 3,475 documents” the entirety of which is classified. The US Government said that Manning only represents 8,741 pages or 636 different documents in that FBI investigative file. The FBI file does not include the Grand Jury testimony.

Pfc. Manning’s defense offered the Court two sample portions of “unclassified” Grand Jury testimony, in order to illustrate to the military judge the kind of evidence they were receiving from the US Government, the lead counsel for the US Government jumped up, interrupted the Court, and instructed the Judge that the “unclassified” rolling black redactions were still under seal, and under the military judge’s “protective order and an Article 3 Judge’s protective order and should be sealed and not held around in Court, and should be stamped as such.” Major Ashden Fein said that “portions” of the Grand Jury testimony were provided to the defense only for limited purposes by US Assistant Attorneys in Alexandria, Virginia investigating Julian Assange and others.

At the 18 October 2012 Article 39(a) Session the Government revealed that in the Spring and Summer of 2011 military prosecutors were coordinating with the Department of Justice and the FBI for the release of information related to the US investigation of WikiLeaks, Assange, and other civilians for the military prosecution of Pfc. Manning.

In a 22 May 2011 memo to the Special Convening Authority, Col. Carl R. Coffman Jr. Commander of Joint Base Myer, seeking an executable delay, the military prosecutors said they were dealing with “sealed search warrants, subpoenas, and Grand Jury material in the federal courts” (plural).

In a 21 June 2011 memo to Col. Coffman – a period documented in the public record for known subpoenas, search warrants, and testimony by the Grand Jury in the Eastern District of Virginia investigating WikiLeaks for “conspiracy to communicate or transmit national defense information in violation of 18 USC 793(g) and conspiracy to violate the laws of the United States, in violation of 18 USC 371 to wit; knowingly accessing a computer without authorization or exceeding authorized access and having obtained information protected from disclosure for reasons of national defense or foreign relations in violation of 18 USC 1030(a) and knowingly stealing or converting any record of thing of value of the United States or any department or agency thereof in violation of 18 USC 641,” – the military prosecutor requested an executable delay because, among other matters “another document was discovered” – military prosecutors noted that they were dealing with US District Court Judges.

When the Judge asked the Government at the 18 October 2012 Article 39(a) Session when the investigation was completed, the Government answered, “The investigation is not complete. The investigation is still ongoing.” On 30 June 2012, Department of Justice spokesperson Dean Boyd, confirmed in like manner to the military prosecutor to Judge Lind, “There continues to be an investigation into the WikiLeaks matter.”

In their 21 June 2011 memo to Col. Coffman requesting more delay, the military prosecutor wrote that another “document” that was “discovered”, By 25 July 2011 another document became two “certain sensitive documents” that were “identified separately.” The military prosecutor also said that it was relying on “US Attorneys” to “keep things moving in the US District Courts” (plural).

In a 25 August 2011 memo to Col. Coffman requesting more delay, the military prosecutor said they were waiting for the FBI and the Diplomatic Security Services (DSS) to disclose “portions” of their investigative files “relevant” to Manning’s defense.

In a 26 September 2011 memo to Col. Coffman requesting more delay, the military prosecution said that it had “obtained all authorizations and signed protective orders from the federal Courts” and that the Government had obtained the “portions” of the FBI and Diplomatic Security Services file “relevant” to Pfc. Manning to give to the defense.

According to 1 December 2011, Defense Request to Compel Production of Article 32 Evidence, the Government responded to the defense request for evidence stating that it “has no knowledge of any Brady or Jencks material” related to the Interagency Committee Review communications with the Department of Defense or the Department of Justice and “will make a determination whether to provide the information if and when it becomes aware of such records.”

National Security council, the Joint Chiefs and Unlawful Command Influence

In their 22 November 2011, Request for the Production of Article 32 Evidence, defense sought:

“…any e-mail, report, assessment, directive, or discussion by XXXXXXXXXX [Russel Travers, National Security Staff Advisor for Information Access and Security] to the Department of Defense concerning this case in order to determine the presence of unlawful command influence..

In addition to the President Obama, General Martin Dempsey, Joint Chiefs Chairman and principal military advisor to the President, Secretary of Defense, and the National Security Council (NSC) also declared Pfc. Bradley Manning guilty before trial.

84 emails provided to defense by the Government, also reveal that the senior Brig officer, former Security Battalion Commander Col. Robert G. Oltman, who ordered PFC Manning to be held in MAX custody and Prevention of Injury at Quantico indefinitely was receiving his marching orders from Joint Chiefs Chairman, General Martin Dempsey’s deputy, Lt. General George J. Flynn, a three star General, Director, J-7, Joint Staff.

ONCIX and ODNI, Closely Aligned

On 28 November 2010, the Director of the Executive Office of Budget and Management (OMB), Jacob Lew – now White House Chief of Staff – sent a “Memo for the Heads of Executive Departments and Agencies regarding WikiLeaks – Mishandling of Classified Information” stating the “significant irresponsible disclosure by WikiLeaks has resulted in significant damage to our national security.” The memo stated that “[a]ny failure by agencies to safeguard classified information pursuant to relevant laws, including but not limited to Executive Order 13526, Classified National Security Information (December 29, 2009), is unacceptable and will not be tolerated.”

The memo directed each department and agency of the federal Government that handles classified information to establish a “a security assessment team consisting of counterintelligence, security, and information assurance experts to review the agency’s implementation of procedures for safeguarding classified information against improper disclosures.” The memo also directed the Executive Office of Management and Budget (OMB), the Information Security Oversight Office (ISOO), and the Office of the Director of National Intelligence (ODNI) to “assist agencies in their review of, security practices with respect to the protection of classified information”

The 28 November 2010 memo lead to the Library of Congress blocking the WikiLeaks Web site. The Department of Defense and their contractors were also ordered not to visit the WikiLeaks Web site. As a result, Columbia University’s School of International and Public Affairs warned prospective State Department recruits to steer clear of WikiLeaks.

According to the New York Times, the US Air Force even “bared its personnel from using work computers to view the Web sites of The New York Times and more than 25 other news organizations and blogs that have posted secret cables obtained by WikiLeaks, Air Force officials said Tuesday.” An Air Force spokesperson told this writer that the USAF ban was lifted a month later on January 11, 2010.

1 December 2010, the White House announced “In coordination with the larger OMB effort, ODNI is developing recommendations to enhance security within the Intelligence Community (IC).”

A memo followed from Robert M. Bryant the National Counterintelligence Executive at the Office of the Director of National Intelligence (ONCIX) and William J. Bosanko, Director of the Information Security Oversight Office (ISOO) on 3 January 2011.

The memo from ONCIX and ISOO listed “existing requirements and questions” each assessment team within each federal department of agency was directed to utilize including: “Assess what your agency has done or plans to do to address any perceived vulnerabilities, weaknesses, or gaps on automated systems in the post-WikiLeaks environment” and “Do you capture evidence of pre-employment and/or post-employment activities or participation in on-line media data mining sites like WikiLeaks or Open Leaks?”

The Government acknowledged at 6 June 2012 Article 39(a) Session that the FBI and Diplomatic Security Service (DSS) participated in US Government’s joint investigation. The Government also acknowledged that the Department of State, Department of Justice, CIA, and ODNI [Office of the Director of National Intelligence] are closely aligned with the Government’s joint investigation. The Court then found that ONCIX [Office of the National Counterintelligence Executive] was also closely aligned.

On 7 October 2011 the President issued Executive Order (EO) 13587 “Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information” The EO established an Insider Threat Task Force co-chaired by the Attorney General, Eric Holder, and the Director of National Intelligence, James Clapper.

“Membership on the Task Force shall be composed of officers of the United States from, and designated by the heads of, the Departments of State, Defense, Justice, Energy, and Homeland Security, the Office of the Director of National Intelligence, the Central Intelligence Agency, and the ISOO, as well as such additional agencies as the co-chairs of the Task Force may designate. It shall be staffed by personnel from the Federal Bureau of Investigation and the Office of the National Counterintelligence Executive (ONCIX), and other agencies, as determined by the co-chairs for their respective agencies and to the extent permitted by law. Such personnel must be officers or full-time or permanent part-time employees of the United States. To the extent permitted by law, ONCIX shall provide an appropriate work site and administrative support for the Task Force.”

Executive Order (EO) 13587 also established a Senior Information Sharing and Safeguarding Steering Committee “co-chaired by senior representatives of the Office of Management and Budget and the National Security Staff.”

Members of the new NSS Steering committee

“shall be officers of the United States as designated by the heads of the Departments of State, Defense, Justice, Energy, and Homeland Security, the Office of the Director of National Intelligence, the Central Intelligence Agency, and the Information Security Oversight Office within the National Archives and Records Administration (ISOO), as well as such additional agencies as the co-chairs of the Steering Committee may designate.”

By 7 December 2011, Executive Order (EO) 13587 directed the Steering Committee to draft a report for the President on the Executive Branches self-examination “successes and shortcomings in sharing and safeguarding classified information on computer networks.”

On October 7, 2012 Executive Order (EO) 13587 directed recommendations for Government-wide policy for the deterrence, detection, and mitigation of insider threats by the Insider Threat Task Force’s in coordination with the Executive Agent, were due to National Security Staff Steering Committee for appropriate review.

President’s Intelligence Advisory Board

On 1 December 2010, the White House announced that the “President’s Intelligence Advisory Board (PIAB) will take an independent look at the means by which the Executive Branch as a whole shares and protects classified information.”

The President’s Intelligence Advisory Board is comprised of no more than 16 non-governmental experts who advise the President on the quality, quantity, and adequacy of US intelligence activities, including the collection, evaluation, and production of intelligence and the execution of intelligence policy.

The PIAB also advises the President on the effectiveness and performance of the departments, bureaus, and agencies that comprise the US Intelligence Community: their organizational structure, management, and personnel.

The Intelligence Oversight Board (IOB), a component of the President’s Intelligence Advisory Board (PIAB), advises the President on the ‘lawfulness’ and ‘propriety’ of the US Intelligence’s Community’s (IC) activities and operations in light of the Constitution, Executive Orders, and Presidential Directives; and raises issues not “adequately addressed” by the Department of Justice Attorney General, the Director of National Intelligence, or the head of the IC department or agency concerned.

In their 10 May 2012 Motion to Compel Discovery No. 2 and their 2 June 2010 Reply to Prosecution Response to Supplement to Defense Motion to Compel Discovery No. 2, defense requested Brady and Williams material and “[a]ny report or recommendation concerning the alleged leaks in this case by Chairman Chuck Hagel or any other member of the [President’s] Intelligence Advisory Board.”

The Government argued at the 6 June 2012 Article 39(a) Session that the defense has “not provided any basis on why there could be Brady material at” the President’s Intelligence Advisory Board or the Interagency Committee Review: “They have provided some information about what might exist there, but not have any showing that would put us on notice for what type of Brady material.” Lead military prosecutor, Major Ashden Fein then said, “based on meetings we have been to, or documents that we have read from other organizations we do have a good faith basis there is potentially Brady material at the PIAB [President’s Intelligence Advisory Board].” The example illustrates one of the Government numerous misunderstanding of Brady rights of a defendant, namely “[i]nsisting on a threshold of specificity for Brady requests that does not exist or some additional showing of relevance.”

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