Transcript | US v Pfc. Manning, Article 39(a) Session, 06/06/12

posted June 6, 2012

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 Motion Hearing held on June 6, 2012 at Fort Meade, Maryland in US v Pfc. Manning.

Judge: Army Col. Denise Lind
Prosecution: Major Ashden Fein, Captain Joe Morrow, Captain Angel Overgaard, Capt. Hunter Whyte
Defense: Mr. David Coombs,Captain Joshua Tooman, Major Thomas Hurley

09:00 a.m. R.C.M. [Rules for Court-Martials] 802

10:00 a.m. Article 39(a) Session

ALL RISE

Judge Lind

Called to order. Appears the first order of business we have today is to discuss individual counsel request for Major Hurley.

Lind goes through the script of reading Pfc. Manning his rights to counsel in a Courts-Martial.

[Military counsel] is provided at no expense to you. You also have the right to be represented by military counsel of your own selection provided that the counsel that you have requested is readily available.

If you are represented by military counsel of your own selection, then your detailed military counsel will be excused. However, you can request that your detailed defense counsel continue to represent you, but that request would not have to be granted.

Do you understand that?

Manning

Yes, your Honor.

Judge Lind

So the documents that Mr. Coombs just described were a request by you for individual military counsel?

Manning

Yes, your Honor.

Judge Lind

In addition to military defense counsel you have the right to be represented by civilian counsel at no expense to the Government.

Civilian counsel may represent you with military defense counsel or you can excuse your military counsel and be represented only by your civilian counsel.

Do you understand your…?

Manning

Yes, Ma’am.

Judge Lind

OK so at this point you have a detailed military defense counsel. You have requested Major Hurley as an individual military counsel and that request has been approved, and you have Mr. Coombs as you civilian defense counsel.

Are these the three attorneys that you want to represent you [Mr. Coombs, Major Thomas F. Hurley, Captain Joshua Tooman]?

Manning

Yes, your Honor.

Judge Lind

OK. We can move that along?

Manning

Yes, your Honor.

Judge Lind

OK.

Judge Lind details Major Hurley.[MISSING]

And for the record that is Appellate 85, the Request for Individual Military Counsel and the subsequent [missed].

And moving along, the court notes that that an extraordinary writ has been filed in this case with the Court of Appeals.

Judge is referring to Center For Constitutional Rights Challenge to Secrecy in Manning Courts-Martial

That Court has not ordered this Court to stay these proceedings so unless…until that Court does we will proceed as scheduled with the scheduling.

Does the either side comments to add?

Prosecution (Fein)

No, your Honor.

Defense (Coombs)

No, your Honor.

Judge Lind

The last Article 39(a) Session [these hearings are called Article 39a Sessions] was the 26th of April of 2012. A number of motions and rulings have been filed since then and I would like to state those for the record. Beginning with the Government Motion to Reconsider the Court’s ruling with respect to the Department of State Damage Assessment.

Judge Lind

OK Does the Government request to make that argument today?

Prosecution (Fein)

No, your Honor.

Judge Lind

For the record, the Motion to Reconsideration is Appellate Exhibit 71, and the prosecution brief discussing the damage assessments that go along with it is Appellate Exhibit 72.

The Court has issued a ruling in this respect. The Defense, did you want to address anything with respect to position…

Defense (Coombs)

No, you Honor.

Judge Lind

Alright, I [MISSING] the court as follows.

[BEGIN APPELLATE EXHIBIT 86, COURT RULING for GOVERNMENT MOTION FOR THE COURT TO RECONSIDER its 23 MARCH 2012 RULING ON THE US STATE DEPARTMENT DAMAGE ASSESSMENT]

On 11 May 2012, Appellate Exhibit 86 the Government moves the Court to reconsider its 23 March 2012 ruling requiring the Government by 18 May 2012 to:

1.) Disclose to the defense the any unclassified information from the Department of State Damage Assessment that is favorable the Accused in the guilt or punishment.

2.) Disclose to the Court any additional unclassified information from the Department of State Damage Assessment not disclosed to the defense for in camera review.

3.) Identify what classified information in the Department of State Damage Assessment is favorable to the defense in the guilt and punishment.

4.) Disclose to the Court all classified information that is part of the Department of Defense Damage Assessment for in camera review in accordance with R.C.M. 701(g)(2). Or at the request of the Government in camera review for limited disclosure under MRE 505(g)(2). The Government moves the Court to rule the State Department Damage Assessment is a “draft” and therefore any information contained in it is not discoverable because it is speculative in nature. The defense opposes. The Government has provided the Court and the defense counsel with a classified letter from the Department of State with background information explaining the draft nature of the DoS Damage Assessment. The Government has also provided the Court with a classified DOS Damage Assessment for in camera review on this motion. The Court has examined both the classified letter and the classified Department of State Damage Assessment and finds that Department of State’s Damage Assessment is a draft Damage Assessment. The fact that it is a draft does not make the draft speculative or not discoverable under R.C.M. 701 [See Rules for Courts-Martial, PDF].

Ruling

The Government’s Motion to Reconsider the Court’s ruling of 23 March 2012 with respect to Department of State Damage Assessment is granted, adding reconsidered of 23 March 2012. The Government Motion to find the Department of State Damage Assessment is not discoverable is denied.

The Government will comply with the 23 March 2012 ruling for the Court.

[END APPELLATE EXHIBIT 86, COURT RULING for GOVERNMENT MOTION FOR THE COURT TO RECONSIDER its 23 MARCH 2012 RULING ON THE US STATE DEPARTMENT DAMAGE ASSESSMENT]

And, has that been available to the Court?

Prosecution (Fein)

Yes, your Honor.

Defense (Coombs)

[MISSING]

Judge Lind

Alright the Government requested that the Court in camera reviews of the DIA [Defense Intelligence Agency] Information Review Task Force File Report and the WikiLeaks Task Force Report and propose substitutions in accordance with Military Rule of Law 505(g)(2). And that prosecution [MISSING] to the Court in Appellate Exhibit 125.

The defense then moved for required non ex parte filing by the Government, which is Appellate Exhibit 106. And that was filed on 22 May 2012, and that was not a motion that was on the original trial schedule. As such, the Government requested a continuance in responding, and that was dated 23 May 2012.

The defense opposed the prosecution’s request for a continuance. That is Appellate Exhibit 108. And, the Government rule on that request from the 24 May, that is Appellate Exhibit 124.

And the ruling was as follows:

[BEGIN APPELLATE EXHIBIT 124, COURT RULING on GOVERNMENT MOTION FOR LEAVE RESPONDING TO DEFENSE MOTION FOR REQUIRING NON EX PARTE FILING BY THE GOVERNMENT IN RESPONSE TO GOVERNMENT FILING MOTION FOR REVIEW OF DIA IRTF FINAL REPORT AND CIA WTF REPORT AND PROPOSED SUBSTITUTIONS IN ACCORDANCE WITH MILITARY RULE OF LAW 505(g)(2)]

Government request for a Continuance in Responding to the Defense Motion for Requiring non ex parte filing by the Government in response to Government filing Motion for reviews of the DIA [Defense Intelligence Agency] Information Review Task Force File Report and the WikiLeaks Task Force Report and propose substitutions in accordance with Military Rule of Law 505(g)(2)

1.) On 18 May 2012 the Government made disclosures to the Court that which provided noticed of intent to MRE 505(g)(2) to file ex parte motions for the Court to conduct an in camera review to authorize the substitution of the classified DIA Information Review Task Force IRT Final Report and a substitution for the WikiLeaks Task Force Report.

2.) On 22 May 2012 defense filed a motion requesting the Court order the Government to provide a non ex parte version of this motion pursuant to MRE 505(i). This motion is not on the Court’s scheduling calendar for the 6 through 8 of June 2012 motions.

3.) On 22 May 2012 via email the Court ordered the Government to respond by 24 May 2012. Also via email the Government requested leave of the Court to respond by 29 May 2012. On 23 May 2012 the Court granted the Government to request via email and also extended the deadline for the defense to respond to the Government’s disclosures until 1 June 2012. On 23 May 2012 the Court ordered the Government to put their email request in a motion. One 23 May 2012 the Government filed a motion for leave to respond by 29 May 2012. Also, on 23 May 2012 the defense filed a request for closing the Motion. The Court’s in camera review of the DIA Information review Task Force IRT Report and the WikiLeaks Task Force Report will not be stayed.

Ruling

The Court modifies the email grant of the Government request for an extension of time and responds as follows.

1.) The Government response is due by COV [?] 28 May 2012.

2.) The Court will rule on the defense motion on 29 May 2012.

3.) Should the Court rule in favor of the defense, the Government will give the defense a non ex parte version of this motion 30 May 2012. The defense response to the Government’s motion is due on 1 June 2012. Issues regarding the DIA Review Task Force IRT Final Report and the WikiLeaks Task Force Report will be addressed at the 29 May session [?], 16 June 2012. Ordered on the 24 May 2012.

On the 28th of May 2012, the prosecution filed a response to the defense motion to require ex parte filing. On 29 May 2012 the defense replied. On 29 May the Court ruled on the issue.

[END APPELLATE EXHIBIT 124, COURT RULING on GOVERNMENT MOTION FOR LEAVE RESPONDING TO DEFENSE MOTION FOR REQUIRING NON EX PARTE FILING BY THE GOVERNMENT IN RESPONSE TO GOVERNMENT FILING MOTION FOR REVIEW OF DIA IRTF FINAL REPORT AND CIA WTF REPORT AND PROPOSED SUBSTITUTIONS IN ACCORDANCE WITH MILITARY RULE OF LAW 505(g)(2)]

Does either side desire to supplement the briefs?

Defense (Coombs)

The defense does not.

Prosecution (Fein)

One moment, Ma’am. [missed Response but it was in the negative.]

Judge Lind

Alright, on the 29th of May the Court ruled on the that motion and the ruling was as follows.

[BEGIN APPELLATE EXHIBIT 128, COURT RULING ON THE DEFENSE MOTION REQUIRING NON EX PARTE FILING OF GOVERNMENT MOTION FOR 505(g)(2) REVIEW OF DIA IRTF FINAL REPORT AND CIA WTF REPORT FOR SUBSTITUTIONS; AND GOVERNMENT’S MOTION FOR UNDER 505(g)(2) REVIEW OF STATE DEPARTMENT, DIA IRTF, CIA WTF]

On 18 May 2012 the Government made disclosures to the Court and provided notice of intent to file ex parte motions for the Court to conduct an in camera review and offer a substitution of a classified DIA Information Review Task Force file report and substitution requests by WikiLeaks Task Force report. The Government filed the ex parte motions with the Court on 22 May 2012. The defense moved the Court to require the Government to file a non ex parte version of this affidavit by a Government MRE 505(g)(2) and MRE 505(1)(4)(a). One 28 May 2012 the Government filed an opposing response. One 29 May 2012 the defense filed a reply.

After considering the pleadings, evidence presented, and argument of counsel the Court finds and concludes as follows:

1.) MRE 505(g) disclosure of classified information to the accused provides procedures for the Government to [MISSING] voluntarily discloses classified information to the defense.

2.) MRE 505(g)(2) limited disclosure [MISSING] the military judge upon motion of the Government shall authorize:

a.) Deletion of specific items of classified information from documents to be available to an Accused.

b.) Substitutions of a portion or summary of the information from such documents.

c.) Substitution with statement admitting the relevant facts. Unless the military judge determines the disclosure of classified information itself, it is necessary to enable an Accused to prepare the trial. The Government’s motion in any material submitted in support thereof shall upon request of the Government be considered by the military judge in camera and shall not be disclosed to the Accused.

3.) The defense cites the Navy Marine Court of Military Review’s position in US v Lonetree 31 MJ 849 Navy Marine Court of Military Review (1990), affirmed 39MJ 396 Court of Military Appeals (1992) that the proposition that in camera review for substitutions under MRE 505(g)(2) are controlled by the procedures in MRE 505(i) Lonetree 31 MJ 857.

4.) MRE 505(g)(2) provides specified procedures when the Government voluntarily discloses classified information, but seeks a limited disclosure of that information to the defense. The Government is not required to make a claim of privilege prior to making a motion for limited disclosure in accordance with MRE 505(g)(2). Nothing in MRE 505(g)(2) states that an in camera proceeding under MRE 505(i) is required. For voluntary limited disclosure of classified information by the Government under provisions of MRE 505 identify when in camera proceedings under MRE 505 apply. See MRE 505(f), MRE 5050(i) applies when the Government has invoked a claim of privilege under MRE 505(c). MRE 505(g)(3)(b) invoking MRE 505(i) when privilege has been invoked under R.C.M. 9XX [?] [See Rules for Courts-Martial, PDF]. And, MRE 505(h)(4) prohibit any defense from disclosing classified information until the Government has been offered a reasonable opportunity to seek a determination under MRE 505(i)

5.) MRE 505(g)(2) is derived from Section 4 of the
Classified Information Procedures Act (CIPA) CNCN MRE(g)(2) analysis A22-24 Federal Court interpret Section 4 of CIPA as authorizing the Government via
ex parte filings to the Court for limited disclosure without invoking claim of privilege. US vs. Mejia 448 F3d 436, 457 DC Circuit (2006).

6.) MRE 505(i) does not apply to voluntary limited disclosure by the Government classified information. The procedures of MRE 505(g)(2) apply. To the extent that the Navy Marine Court of Military Review in Lonetree states otherwise, the Court disagrees.

7.) The 18 May 2012 prosecution disclosure to the Court provides the defense and public with notice of what in camera motions the Government intends to file. In order to ensure that that defense and the public have notice of the general nature of the proposed substitutions proposed by the Government and the national security interests that the Government seeks to protect with substitutions the Government shall file an unclassified redacted version of its ex parte motions. The Government is not required to submit the proposed substitutions to the defense.

8.) On 14 Feb 2012 the defense filed an ex parte supplement for the Court to consider in ruling on the defense motion to compel discovery. That would be [missed] On 15 March 2012, the Court ruled that it would not consider the ex parte supplement when deciding the defense motion to compel discovery, but the Court would consider the ex parte supplement at the request of the defense when conducting an in camera reviews in accordance with MRE 505.

9.) The defense will advise the court by 1 June 2012 what the defense desires the Court to consider the ex parte supplement when conducting the MRE 505(g)(2) in camera reviews requested by the Government.

Ruling

1.) The defense motion to require the Government to require non ex parte affidavits is granted in part. The Government will provide the Court and the defense with unclassified redacted version of its ex parte filing no later than May 30, 2012 that describes the general nature of the proposed substitutions in the national security interest the Government seeks to protect with the substitutions.

Yes, Ma’am. Appellate Exhibit 114 is the original disclosure the Government made to the Court and defense with the redaction that could be approved by the Court…the redactions that could be approved by the Court in suspense.

So the Government provided the most redacted version that was approved immediately. The Government requested the extension of time in order to have one more day to get the approval from the equity holder to turn over to the defense more information un-redacted, and received that approval in the next day. And in a supplemental filing, the exact same document from the day before with less information redacted.

Judge Lind

Alright. Thank you. Alright, the Court is prepared to rule on this issue unless either side has anything further to [missed]?

Prosecution (Fein)

Your Honor, the Government just has a short…would like a short moment to give the Government’s position in the defense’s motion.

The defense’s response to the Government’s Motion for Authorization and Substitution. First and foremost, the Government contends that MRE 505 and CIPA Section 4 does not contemplate the defense filing a response or contesting a Government motion under MRE 505(g)(2) versus invocation of privilege under 505(i).

The same cases cited by the Court in the Court’s order to approve the ex parte un-redacted unclassified versions of the motions …Mejia…the DC Circuit Court held that defense is absent from the ex parte review does not unfairly prejudice the Accused.

There are other in camera proceedings under CIPA Section 4 the Accused is entitled. And, especially is entitled to argue at taking in camera proceedings under 505(i)…under 585(i) with the Military [missed].

Ultimately we think it is inappropriate for the defense to be able to trial this and for the response to be considered by the Court. The only reason the Government hasn’t contested this now, but prior to this moment, is because the defense was on notice based on the Court’s original order 23 March for the Government to make this filing.

OK. Alright. To continue on with the ruling.

The Government found no unclassified information in its review of the WikiLeaks Task Force report favorable to the accused or material [missed] with punishment. The Government filed an ex parte motion for the in camera by the Court IAW 505(g)(2) to determine if the proposed Government substitution shall be disclosed to the defense, or whether disclosure of classified information itself was necessary to enable the Accused to prepare for trial. The Court has conducted an in camera review of the classified information considering the factors requested by the defense. The Government substitutions disclosed in Brady and R.C.M. 701(a)(6) material, but not material under 701(a)(2). The Court does not find at this time that the proposed substitutions is sufficient. The court will meet ex parte with Government counsel in an area appropriate for review of classified information. A Court reporter will transcribe the classified proceedings.

Ruling the classified motions by the Government to voluntarily provide limited disclosure under MRE 505(g)(2) of the DIA IRTF final report is granted. The Court finds the substitutions as currently drafted as not sufficient under MRE 505(g)(2) and holds the decision in advance any of the ex parte proceeding with the Government and review of what the Government intends to introduce and not introduce in their sentencing case.

Alight, we will go ahead and report that this ruling marked.

[missed] OK. That would be Appellate Exhibit 128.

[END APPELLATE EXHIBIT 128, COURT RULING ON THE DEFENSE MOTION REQUIRING NON EX PARTE FILING OF GOVERNMENT MOTION FOR 505(g)(2) REVIEW OF DIA IRTF FINAL REPORT AND CIA WTF REPORT FOR SUBSTITUTIONS; AND GOVERNMENT’S MOTION FOR UNDER 505(g)(2) REVIEW OF STATE DEPARTMENT, DIA IRTF, CIA WTF]

Prosecution (Fein)

Yes, your Honor. In an email to the Court for the Government to produce a witness from the Department of State described in the damage assessment, the Government sought clarification because at the time we received that email, that email was sent, the Department of State had already made the damage assessment available to the prosecution to the defense.

So the Government needed clarification on that issue that was the scope of the testimony that that Department of State witness would be testifying about, and if that if that was the scope then the Government would work with the Department of State to obtain a proper witness to testify to that.

Judge Lind

Alright. And, during that telephonic R.C.M. [Rules for Court-Martials] 802 conference where counsel for both sides, Mr. Coombs, Major Fein and, I believe, the rest of the Government team as well as Major Hurley, who, if we are on the record, Mr. Hurley got on a little bit late [missed]. The defense requested clarification. The Court advise the Government that the Court intended to do an ex parte discussion that would be recorded by a Court reporter with reference to the WikiLeaks issue [ALEXA NOTE: THE TERM “WIKILEAKS ISSUE” LIKELY RE AN EX PARTE 505(g)(2) REVIEW DAMAGE ASSESSMENTS. I THINK IT RELATES TO CIA WTF REPORT SUBSTITUTIONS].

The Court asked the defense what they intended to ask the State Department witnesses. And the defense advised that they basically wanted if the Chiefs of Mission to review materials, they would like the substance in writing for the damage assessments, if not where is it?

Their requests were based off of Ambassador Kennedy’s Nov 2010 [Judge Lind make an error and the record was corrected by Prosecutor Fein. See below. Kennedy’s testimony was March 10, 2011] testimony. Was there a Working Group for WikiLeaks? Who proposed it? And those statements were given to Congress.

OK. The Government advised the Court that it cannot review the certain Department of State documents for Brady. They are still accumulating them. The defense had asked why the Government hadn’t looked at them yet. The Government argued that “mitigation” is not relevant. And, the defense advised the Court that the Government filed supplemental filings. The Court ordered the Government to have Department of State Witnesses available.

And, the Government then advised the Court what evidence it will use for aggravation in sentencing, and where it comes from. Does either side desire to supplement what occurred at that telephonic R.C.M. [Rules for Court-Martials] 802 understanding that we will be able to the filings that had been filed?

Defense (Coombs)

No, your Honor. The defense will discuss the additional [missed] in our motion.

Prosecution (Fein)

Just two points of clarification on the testimony with Ambassador Kennedy was on March 10, 2011. A subsequent defense email to the Court in March of this year. And also, your Honor, the Government does not recognize making an assertion that “mitigation is not relevant.”

Judge Lind

Alright. R.C.M. [Rules for Court-Martials] 802 conferences are conferences where the parties for the Court to bring basically to the Court attention. Based on the last R.C.M. [Rules for Court-Martials] 802 conference the defense has filed a motion to record R.C.M. [Rules for Court-Martials] 802 conferences. That has been marked as Defense Motion to Record and Defense Trial all R.C.M. [Rules for Court-Martials] 802 Conferences.

That has been marked as Appellate Exhibit 121. That motion is not part of the motions that were to be considered today in that R.C.M. [Rules for Court-Martials] 802 conferences are obviously provided by the Rule for Court-Martial are routine in criminal trials.

The Court believes that it is appropriate to address that motion at this hearing as they will continue to happen, and the defense has objected to participate in R.C.M. [Rules for Court-Martials] 802 conferences if they are not transcribed.

Would you like to add anything the Court record?

Defense (Coombs)

Your Honor, the defense’s main position is that even though we recognize 802 conferences are in fact a very common occurrence within Court-Martial. Usually the 802 conferences are limited to just scheduling issues, advisement Court of what may come up in future motion hearing, or any sort for logistical problems that may come up on either side may be having.

Unfortunately, in this case the 802 conferences have become an opportunity to re-litigate a lot of the Court’s rulings. And, so what happens is that we go into a great deal of substantive matters that the Court then considers from both sides. And, even though the Court correctly then does not make a ruling, we end up discussing the matter in such detail that we come back on the record, what happens is there is a very brief summary and the Court gives the parties to provide more detail, but then the Court makes its ruling.

The defense believes that the way the 802 conferences are being used both as a matter of re-litigating issues, but also even just right now…the Court recalls an 802 conference that the Government said that the “mitigation evidence would not be relevant.”

That is also the defense’s recollection of the Government’s assertion. But normally what happens is the Government takes a position in an 802 conference or later through its motion or its oral argument takes a contrary position.

Because of the nature of the fact that things are not recorded, the defense is not in a position to say that the Government’s belief is inaccurate based upon its statements.

So, for the purposes of a substantive discussion, we would request that the 802 conferences be recorded. Understanding that the way our system works is that there is a last minute logistical issue and we need get the parties on the line for logistical stuff, that normal, that understandable. The defense will participate in those. Even this morning, in the 802 conference that was perfectly acceptable.

But, to the extent that we start talking about substantive matters we would request that those matters are on the record, so there is no doubt as to what one party said. If we are re-litigating something, then there is no doubt, as to what has been advanced to the Court. And then when the Court makes its ruling, it’s clear the matters in which the Court considered.

Judge Lind

Alright. Government?

Prosecution (Fein)

Your Honor, just briefly for purposes of the record, both the prosecution and the defense have petitioned the Court for 802(s) either over the telephone or even email on substantive matters.

There is no prohibition for substantive matters to be discussed. In fact, 802 clearly contemplates that if parties agree it should that, it must be put on the record.

It doesn’t necessarily draw a line on substantive and procedural matters. The Government contents that there is nothing that the parties or the Court discussed in an 802 that can’t be put on the record.

Of course everything could be put on the record, and that is an option. However, the purpose of R.C.M. [Rules for Courts-Martial] 802 according to the rule is to allow conferences for the parties in order to consider matters to promote fairness and efficiencies, an expeditious trial.

Having to record 802 is not going to help achieve the purpose of an 802, which is for an expeditious trial. So, the Government objects to the recording the 802(s) and if the issue litigating substantive matters that don’t go in favor of one party, and the parties don’t agree then is making a part on the record is what 802 [missed].

Judge Lind

As I discussed with counsel at this morning’s 802, the Court is going to consider this issue at this session, because it does impact on the procedure for the remaining duration of this trial.

And, the Court is actually prepared to rule on it. The ruling is as follows:

[BEGIN APPELLATE EXHIBIT ?, COURT RULING ON DEFENSE MOTION TO RECORD AND TRIAL ALL R.C.M 802 CONFERENCES]

The defense moves the Court to order all R.C.M. [Rules for Courts-Martial] 802 conferences be recorded and transcribed for the record. The Government opposes. After considering the pleadings that have been presented, and argument of counsel, the Court finds and concludes the following.

1.) The trial schedule developed by the Court and the parties provides for Article 39(a) Sessions to be held approximately every 5 to 6 weeks. To date their have been Article 39(a) Sessions held on 23 February, 15 and 16 March, 24 through 26 April, and the current session 4 to 6 June 2012.

2.) R.C.M. [Rules for Courts-Martial] 802 provides that after referral the military judge may upon request of either party or sua sponte, which means by myself, order one or more conferences with the parties to consider such matters as will promote a fair and expeditious trial. Conferences need not be made part of the record, but matters agreed upon at the conference shall be included at the record orally or in writing. Failure of a party to object at trial or failure to comply with R.C.M. [Rules for Courts-Martial] 802 waives this requirement. No party may be prevented from any argument, objection, or motion at trial. The discussion to the rules states that the purpose of R.C.M. [Rules for Courts-Martial] 802 conferences is to inform the military judge of anticipate issues and to expeditiously resolve matters in which the parties can agree, and not to litigate or decide contested issues.

3.) The Court has been holding R.C.M. [Rules for Courts-Martial] 802 conferences with counsel during and following the Article 39(a) Sessions and by telephone on 8 February 2012, 28 March 2012, and 30 May 2012. Each of these conferences has been synopsized on the record and the Court has invited the parties to add details to the Court synopsis.

4.) Prior to the current motion dated 2 June 2012 the defense has not objected to conducting R.C.M. [Rules for Courts-Martial] 802 conferences.

5.) R.C.M. [Rules for Courts-Martial] 802 are not required that such conferences be recorded or transcribed. The Court will continue to continue to hold such conferences to address administrative, logistics, and scheduling issues. If either party objects to discussion of an issue in an R.C.M. [Rules for Courts-Martial] 802 conference, the conference will be terminated and the issue will be addressed at the next Article 39(a) Session.

6.) The Court notes that the parties have raised substantive issues in the middle of the Article 39(a) scheduling periods that if not addressed expeditiously will delay the trial. Therefore, the Court in conjunction with the Parties will build in an additional Article 39(a) Session into the Court calendar. I anticipate it will be about a one day session midway between each scheduled Article 39(a) Session to address any such issues that arise. When additional substantive issues arise that require expeditious resolution the Court will schedule additional ad hoc Article 39(a) Sessions as necessary.

Ruling

1.) The defense motion record and transcribe R.C.M. [Rules for Courts-Martial] 802 conferences is denied.

2.) R.C.M. [Rules for Courts-Martial] 802 conferences will not be held over the objection of a party.

3.) The Court will schedule an additional Article 39(a) Session in between the currently scheduled sessions to address on the record any additional issues that arise between our scheduled sessions.

[BEGIN APPELLATE EXHIBIT ?, COURT RULING ON DEFENSE MOTION TO RECORD AND TRIAL ALL R.C.M 802 CONFERENCES]

Anything else around this issue?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

At this time why don’t we move onto the defense Motion to Compel Discovery [No.] 2?

The defense has filed an additional motion based on disclosure by the Government in, I believe, the telephonic 802 conference that we held on 30th of May. That was filed on Saturday June 2, and was not an envisioned motion that would be considered as part of the discussion.

The Government has not had an opportunity to respond to that motion.

The Court has advised the defense that the…I will let you go ahead and present the issues on the record today understanding that I am not going to make any rulings until I hear from the Government’s response. And, this will be an issue that will be ripe when the first ad hoc Article 39(a) Session that we do in two or three weeks [June 25, 2012].

Defense (Coombs)

Yes, Ma’am. If for the purposes of the argument, if the Court also would pull from Appellate Exhibit 119 and 120. 119 is the prosecution’s notice on ONCIX [Office of the National Counterintelligence Executive] and 120 is the defense response to the prosecution notice.

Judge Lind

Alright. I have and Appellate Exhibit 119 and Appellate Exhibit 120.

Defense (Coombs)

And, Ma’am for my argument what I would like to do is…within the Compel Motion Discovery [No.] 2 we requested four reliefs. I would like to address the first, to the extent the Government would like to respond…allow the Government to respond to that. And then move onto the other three.

So, as the Court knows within the defense Compel Discovery Motion No. 2 we requested four reliefs from the Court.

First, the Court should order a full accounting of the Government’s efforts to comply with its Brady obligation.

Second, that the Court should order the Government to produce in a timely fashion, all the Brady materials.

Third, that the Court should order the Government to produce all the materials that would qualify under R.C.M. 701(a)(2) to include providing un-redacted copies of those documents that would fall under 701(a)(2).

And, finally, fourth, which the Court is in the processing of doing now, ordering the Government to produce all aggravation evidence that it intends to introduce.

So, what I am going to talk about first is the Compel Due Diligence Request. The argument to have the Government produce all of its materials in its possession. The defense believes that we continue to have very serious discovery problems in this case.

What the evidence shows here is that the Government needs to provide a full accounting of its Brady search and its Brady obligations.

The defense has consistently maintained through its oral submission, its written arguments, and its conduct has illustrated that its does not understand its due diligence requirements under Brady requirements.

The defense raised this issue in the past in part of our motion to dismiss, discussing initially how the Government did not even cite 701(a)(6) in its motion.

We also raised the issue that the Government maintain that 701 [See Manual for Courts-Martial PDF] and 701(a)(6) didn’t apply to classified information. We initially pointed out that the Government cited Cone v Bell for its position that Brady would not be applicable in sentencing.

And, then it maintained that the damage assessments that we were talking about were not even relevant, and then later determined that, “Yes. The damage assessments do in fact have Brady material.”

I would like for the Court for a moment to step back and think how we became aware of some of the information that is now the subject of the Motion to Compel Discovery [No.] 2.

Initially, the Government stated that all of the damage assessments that we had identified as possibly existing, or just “alleged” damage assessments…that was the terminology that they used. And in Court indicated that the “alleged” would not be sufficient, they would have to in fact determine whether or not the damage assessments existed.

The Government then moved on to indicate that the Department of State, ONCIX [Office of the National Counterintelligence Executive], had not completed a damage assessment.

At that point the defense said we were concerned how the Government was using the term, “completed”. We felt that they were playing fast and loose with that term, and it indicated that perhaps there was in fact a damage assessment.

Then the Government indicated to the Court that it was unaware of investigative files or forensic results in closely aligned agencies. And, again, the defense raised the issue that the Government cannot state that it is simply unaware. It has to go look.

During the course the Court ruled that, “Yes, the Government would in fact be required to go look to determine whether or not these files did in fact exist.”

And when you look at that background, you see that if the defense had not raised an issue with regards to “unaware”; raised an issue with regarded to “had not completed”; or “alleged”; and had just accepted the Government’s representations, we would not be litigating any of these issues, and would not be aware of many of the damage assessments that we are currently aware of.

But most troubling is that within the last few weeks we have additional information that shows that the Government is not been diligent in its Brady search.

The clearest form or proof of that is the HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies.] memorandum, the Headquarters of the Department of the Army memorandum.

Judge Lind

Where do you have that?

Defense (Coombs)

That is an Attachment A to the defense motion to compel discovery 2. And, if you look at that Ma’am. That memorandum was dated initially 29 July 2011.

So, we know from that is that the Government’s started its Brady search within the Headquarters of the Department of the Army until almost a year after my client was placed in jail based upon these offenses. It has still not yet started their Brady search.

The incredible things from this is nine months later someone within HQDA realized that nothing had been done on the 29 July request. No action had been done for Brady information. And it wasn’t the trial counsel. It was somebody up in HQDA who said, “You know what? We haven’t done anything on this. We need to start this.” And that is the memorandum they received dated 17 April 2012.

So as of 17 April 2012, the trial counsel in this case hadn’t done anything to secure Brady information within the Department of the Army. And we found out about this, this memorandum as a fluke. We weren’t even suppose to find out about this.

But, what happened was that when they realized that nothing had been done, they immediately sent out for these memorandums to the principle officers within the Department of the Army, counseling them to look for this information.

And, then unfortunately, or fortunately for the defense, one of those principle agencies is Trial and Defense Services. So these memoranda landed on the desk of my former co-counsel, Major Matthew Kemkes, and then he sent it to me.

And, I looked at it this, and that is when I realized that the trial counsel has not even done Brady search within the Department of the Army.

And, if they haven’t done a Brady search within the Department of the Army, how we can have faith that they have done a due diligence Brady search at any other agency.

Clearly, we cannot.

In addition to this, during our last 802 session, the Government made a startling admission. They stated that they had not gone to the Department of State to review the Chiefs of Mission review; the WikiLeaks Working Group Review; the Mitigation Team Review; or the Department of State’s report to Congress on the alleged leaks.

And, their apparent justification for not doing that was, they said, we had not given them any notice until, defense Motion to Compel [Discovery No.] 2. That was the first time that they received evidence. And they also stated that, this information would not be discoverable.

Defense was dumbfounded at that response. Because, we know we have filed six previous referral Discovery Requests for information from the Department of State.

In addition to that, we moved to compel this information at the [Article] 32 [Pretrial] in front of the Investigating Officer [Lt. Col. Paul Almanza, who is a life long DOJ Prosecutor] this information from the Department of State was the subject of Discovery Motion No. 1 in front of this Court.

In addition to that, we have been seeking to depose Ambassador Patrick Kennedy for the last eight months. Trying to just sit down with Ambassador Kennedy to talk to him.

Roadblock after roadblock in front of the defense in order to do that. And as the Court knows, we filed a Motion to Depose Mr. Patrick Kennedy.

At that point, the Government indicated that it would do everything they could in order to provide him to the defense. But, we just need to submit a Touhy request.

And, that is what we did.

As the Court knows, on 23 March 2012, we did submit a Touhy request. And, that Touhy request listed specifically these groups that we are talking about. Saying that is what we wanted to talk about with Ambassador Kennedy.

In addition to that, as the Court knows, we supplied both the Court and to the Government, Mr. Kennedy’s declaration in front of Congress, talking about these subgroups.

So, it is entirely disingenuous for the Government to say that they had no notice of this information until our motion to Compel Discovery No. 2 filed on 10 May. They clearly knew at the very latest that they could possibly say that they became aware of this when Ambassador Kennedy testified to this information in March 2011.

The Department of State is a closely aligned agency. The Government has a due diligence obligation to go search their documents, and do so in good faith. They cannot simply bury their head in the sand and say this stuff does not exist or you haven’t given us sufficient notification for what we go look for. They were on to this. And they haven’t [missed] that obligation.

Now, if the Headquarters part of the Army issue was not enough, and the Department of State issue was not enough, we now know, from a recent filing of the Government on 31 May that they are currently aware that the FBI does in fact have an impact statement. And, they state that they just discovered that the FBI had this impact statement.

The defense has been asking since the very beginning of this case in 2010 for information from the Joint Investigation done by the FBI. The fact that they could say at this point, at this juncture, that they are just now finding out that the FBI has done an impact statement… Why has the Government not found out about this before? Where was this impact statement? This is an agency that has participated in an ongoing Joint Investigation with the Department of the Army. You would think that they would know what the FBI has.

And, here they are now just saying, that the FBI has this impact statement. And, take a look at how the Government choses to give the defense and the Court notice of this impact statement. They do so in one sentence, referenced on page four of its seven page response, to our Supplement to [Compel] Discovery No. 2 Motion.

One little sentence, a throw away sentence, they indicate, “Oh…by the way, the FBI does have an impact statement.”

That looks like they were just hoping to bury that information, that no one would notice that somehow.

That latest revelation show that the Government just really keeps the Court and the defense in the dark about this information until if it chooses on its own accord to get information to the defense and to the Court.

Not only that, within that, they indicate that they are going to make this impact statement from the FBI available to the defense based upon the Court calendar, which when you look at the Court’s calendar for the 505 proceedings, it is clear that the Government does not envision the defense getting this information anytime soon…this impact statement. So, that is obviously problematic.

But, as if this eleventh hour revelation about the FBI impact statement was not enough, we now know that ONCIX [Office of the National Counterintelligence Executive] has a damage assessment.

In its response to Discovery Motion No. 1, the Government represented that ONCIX [Office of the National Counterintelligence Executive] had not completed a damage assessment.

It recalled, they use that same terminology, “not completed a damage assessment” with regards to the Department of State. And, this Court said that that was not enough, “You had to provide greater clarification.” And, so this Court asked the Government specific questions regarding the Department of State and regarding ONCIX [Office of the National Counterintelligence Executive], and subsequently you gave that request for specific information to the Government.

The Government replied with regards to the Department of State. The Department of State had “not completed a damage assessment.” With regards to ONCIX [Office of the National Counterintelligence Executive] the Government replied that “ONCIX [Office of the National Counterintelligence Executive] has not produced any file or interim draft assessment in tis matter.” That was what the Government represented to the Court and to the defense.

And, they made that representation to the Court on 21 March 2012.

Then, as you know, the Court ordered a production of the Department of State damage assessment for an in camera review, however, the Court did not on 23 March address the ONCIX [Office of the National Counterintelligence Executive] damage assessment.

And, this wasn’t an omission on the Court’s part, this wasn’t an oversight on the Court’s part. The Court didn’t address the ONCIX [Office of the National Counterintelligence Executive] damage assessment because it hadn’t been told about the ONCIX [Office of the National Counterintelligence Executive] damage assessment.

You had been told that they had produced “no interim or final report.” That was what you were told on 21 March. So, then at 23 March when you issued your ruling that the Department of State damage assessment, the draft damage assessment is discoverable. At that point, the Government has an obligation to come forward to the Court and say, “You know what? ONCIX [Office of the National Counterintelligence Executive] also has one.”

But, they didn’t do that. They sat on that information. And then what happens is, instead of us being able to challenge them, because we couldn’t challenge them on the ONCIX [Office of the National Counterintelligence Executive]. All we had actually is a belief that ONCIX [Office of the National Counterintelligence Executive] has something.

But, as the Court knows in basically latter part of March, early part of April, we start receiving Brady from these other 63 agencies, what the defense calls, “Our 12 pages of Brady.” And, we received these 12 pages, and these 12 pages clearly indicated that ONCIX [Office of the National Counterintelligence Executive] had a damage assessment.

Because within the 12 pages, you see the agency responding to ONCIX [Office of the National Counterintelligence Executive] and not only ONCIX [Office of the National Counterintelligence Executive], but ODNI [Office of the Director of National Intelligence].

We still haven’t heard yet of ODNI [Office of the Director of National Intelligence] has a damage assessment.

But, they were responding to both ONCIX [Office of the National Counterintelligence Executive] and ODNI [Office of the Director of National Intelligence].

And, ONCIX [Office of the National Counterintelligence Executive] is tasking these agencies to take a look at specific information, to access whether or not this information has cause damage to their agency.

If it has, to detail the steps that they have taken in mitigation to address that damage, and then to indicate the cost of the steps that they have taken, in response to that damage.

And, when we received the 12 pages of discovery, as the Court knows, we raised that issue with the Court and Government, saying how can the Government maintain that ONCIX [Office of the National Counterintelligence Executive] does not have a damage assessment when we are looking clearly at these documents that say ONCIX [Office of the National Counterintelligence Executive] is tasking these agencies with suspense dates. To look for this information, get this back to us with this information.

Clearly, ONCIX [Office of the National Counterintelligence Executive] has something. And, at that point the Government chose to define its way out of this inconsistency.

The Government then said, “Wait a second.” There is a difference between “damage assessment”, and there is a difference between “damage assessment” and “investigation”. And, what the defense had been asking for is ONCIX [Office of the National Counterintelligence Executive] may have is more akin to “working papers”.

And, so the Government so far as to provide as to provide the Court with a three page memorandum detailing the difference between what is a “damage assessment”, based upon their arbitrary definition; what is a “investigation”, based upon their arbitrary definition; and the fact that the defense really needed to ask for “working papers”.

So based upon that defense said, “We are going to file a Motion to Compel Discovery [No.] 2” referencing ONCIX [Office of the National Counterintelligence Executive].

And, we are going to ask for everything: “damage assessment”, “investigation”, and we will even throw in the terminology “working papers” so the Government knows exactly what we are asking for.

What is responsive to these 12 pages of Brady discovery that we have been given…and, when we did that, at that point, what does the Government say? The Government says, “Oh, now we don’t understand what you were asking for. It is too broad.”

But when we asked for this information, the Government knew, and knows that ONCIX [Office of the National Counterintelligence Executive] has something. They had an obligation at that point to come forward and say, “You know what, Ma’am. ONCIX [Office of the National Counterintelligence Executive] does in fact have a ‘working paper draft’ assessment that is ongoing that the Court may want to be aware of.

But they didn’t do anything. They sat on that information.

It wasn’t until, 31 May that the Government notified the Court and the defense that ONCIX [Office of the National Counterintelligence Executive] actually had a damage assessment.

And, how does the Government do that?

Take a look at that notification. They justify sitting on this information because they had asked the Court to reconsider its ruling on the Department of State damage assessment. And, they said to the Court that draft damage assessments were not discoverable for purposes of Brady. That was their position.

They filed their position on one case. A 1963 Supreme Court case citing the second concurring opinion, a throw away sentence within that second concurring opinion. And, the Government then when they filed that…the Court didn’t even request that the defense needed to file a reply with them.

That was the “How much their opinion or at least their request had, as far as controlling law, had backed it up.

The Court said, “No need to file a response,” and 11 May 2012 reiterated its 23 March ruling that draft damage assessments by the Department of State were discoverable.

And, at the time the Court did that on 11 May, again, knowing what the Court asked for on 21 March for information; knowing what the Court ruled on 23 March and then out on 11 May. The Government had an obligation to come forward to the Court and say, “Your Honor. ONCIX [Office of the National Counterintelligence Executive] has something.” But they sat on the information again for three weeks.

And what are they doing during that time period? You see from their 31 May notification, that they go to ONCIX [Office of the National Counterintelligence Executive] and they start coordinating with ONCIX [Office of the National Counterintelligence Executive] about their draft damage assessment.

And, they unilaterally decide, that we are going to be turning your draft damage assessment over on 3 August. And, they present this whole thing to the Court that it is a done deal. No need to coordinate with the Court or the defense. We have already decided that this damage assessment is going to be turned over on 3 August.

So, at this point, a little over a month before trial. That is when they envision handing this information over.

Take a look at the 24 May 2012 memorandum, written by Major Fein, the general counsel. It states that, “On 23 March 2012 the Court ruled that the Department of State’s draft damage assessment was discoverable, and did not rule on ONCIX [Office of the National Counterintelligence Executive] draft.” That is HIS wording, in his motion to ONCIX [Office of the National Counterintelligence Executive] general counsel.

The reason the Court did not rule on ONCIX [Office of the National Counterintelligence Executive] draft was because YOU didn’t know about ONCIX [Office of the National Counterintelligence Executive] draft, how are you going to issue a ruling if you don’t know about the fact that ONCIX [Office of the National Counterintelligence Executive] has a draft damage assessment.

Then Major Fein makes it look like an error on the Court’s part, stating that “The prosecution must notify the Court of this apparent inconsistency in the Court’s order.”

There is no inconsistency in the Court’s order. Again, the Court was not aware that ONCIX [Office of the National Counterintelligence Executive] had anything.

And, you were not aware of that because on 21 March 2012 the Government represented to the Court and to the defense that ONCIX [Office of the National Counterintelligence Executive] “did not have any interim or final draft damage assessment.” That is what they represented to this Court.

Now the defense predicts that much like what they did when we raised the 12 pages of Brady, that the Government again is going to try define its way out of this. That somehow the ONCIX [Office of the National Counterintelligence Executive] damage assessment that we now know of was somehow a “pre-interim”, it wasn’t really an “interim”…or maybe it wasn’t a “pre-working paper which of course has to be different than a damage assessment, which of course is different from an investigation, which may or may not qualify as a draft.”

That is going to be the Government’s position.

But, what is clear is that everyone knew what the Court was asking. Does ONCIX [Office of the National Counterintelligence Executive] have something? And they had an obligation that at that time to tell the Court, “Yes.”

And if they would have done that, the Court would have said, “Turn it over.” And, you would have looked at it at the same time you looked at the Department of States draft damage assessment, and you would have made your ruling.

And, at this point if that would have been the case, we would have had ONCIX [Office of the National Counterintelligence Executive] draft damage assessment, if the Court determined much like with the Department of State that it was discoverable.

When you take a look at that Ma’am, also take a look at the 12 pages of Brady. When did ONCIX [Office of the National Counterintelligence Executive] start asking for this information? You will see that they started asking for this information at the end of 2010, beginning of 2011. And they were putting suspense dates for early 2011 for all this information.

So, it appears that the July 13 deadline maybe, the final report…but they certainly have a draft that the Court should have had the benefit of.

So, now looking at these latest revelations now you have to take a look at what the Government is doing with regards to the 63 or so agencies that they have indicated that they are reaching out to. If you look at that the Government admits that they initially started reaching out to these agencies in the April May 2011 time period. Again, over a year after my client has now been in pretrial confinement.

What are they doing during that time period? Clearly they are perfecting their case.

They are not doing a Brady search. And, then you would take a look at between April 2011 and February 2012. This is where it would be important if we have this as a recorded 802 session. But in February 2012 the Government represented both to the Court and to the defense. They looked at us in the eyes and they said to us, “We looked high and low for Brady from April 2011 to February 2012. We have looked for Brady, we have found nothing. We have found no Brady.” [See Judge Lind’s March 15, 2011 Article 39(a) Session recitation of the February R.C.M. 802 conference and Major Fein’s comments following on the record for corroboration of Mr. Coombs statement.]

If the court recalls, based upon that representation by the Government, the defense started saying, “Well if you really looked and you haven’t found anything, well we may do a waiver of your due diligence Brady search if represent for an accounting of what you have done in order to get this case going forward.”

If you say you, because at that point they were saying that they were looking at “The Department of Agriculture for stuff.” We were saying, “Well, we don’t think the Department of Agriculture is going to have much. So if that is what we are really holding off this whole process for, let’s see what you have done, and then we will go forward from there.”

But, again the key aspect here is that in February 2012, in the 802 session they said to you, they found no Brady.

Then, strangely, shortly after our compel motion discovery no. 1 argument in the Court’s 23 March ruling with regards to the fact that 701 does in fact apply to classified information. We start seeing that Government is going back to these same agencies, saying in requests to these same agencies to then produce information to them.

Look at the 12 pages of Brady and look at the other Attachment to our compel motion 2, and look at the dates in which the Government is reaching out to these agencies to work with them to produce the information that they gave to ONCIX [Office of the National Counterintelligence Executive] and to ODNI [Office of the Director of National Intelligence]. It is within the last two months.

How is it that the Government is within the last two months now reaching out to these same 63 agencies that they represented to the Court and the defense in February 2012 that they hadn’t found anything. That they have been looking for two years. Why are they going back and doing a relook at this point?

And, the defense would submit that they are doing a relook because they didn’t understand Brady the first time around. And, they are basically doing their research for Brady under the proper standard now. And that is why even though in February 2012 that they saying that there was no Brady to be found anywhere. Now, we are getting Brady.

We are getting Brady information in dribs and drabs, slowly but surely, but we are getting it.

And that brings on the other follow up in how the Government is doing its due diligence search in this regard. Instead of going to ONCIX [Office of the National Counterintelligence Executive] and ODNI [Office of the Director of National Intelligence] directly…to the source to get all this information. They are independently recreating the wheel trying to go back to the 63 agencies. And, all they are really doing with those 63 agencies is saying, “Send us what you sent to ONCIX [Office of the National Counterintelligence Executive] and ODNI [Office of the Director of National Intelligence].”

Wouldn’t it make much more sense to go directly to ONCIX [Office of the National Counterintelligence Executive] and ODNI [Office of the Director of National Intelligence] and just get the information?

Now whether or not they can turn that information over and they still have to coordinate with the various agencies, that is a separate equation. I mean they certainly can adapt at that point which agencies have certainly responded to ODNI [Office of the Director of National Intelligence] and ONCIX [Office of the National Counterintelligence Executive] and then it makes it much easier to go to the agency saying, “Hey. We have this. You gave it to ONCIX [Office of the National Counterintelligence Executive]. [missed] Do you have anything else?”

But instead, they are doing it piecemeal. At this point, we have received less than half of the I guess…if 63 is the number…less than half of 63 agencies we have received. And, again…

Judge Lind

So, you are getting Brady from about 30 agencies at this point? Is that correct?

Defense (Coombs)

28.

And, most of this is one page or two page responses to ONCIX [Office of the National Counterintelligence Executive] or ODNI [Office of the Director of National Intelligence], and it basically says, “No damage. No impact.” Or, “Possible impact, but on another agency.”

That is the general gist of what we are receiving.

So, if the Government was doing this in a diligent fashion, the defense would submit that they go directly to the source again, either ONCIX [Office of the National Counterintelligence Executive] or ODNI [Office of the Director of National Intelligence]. So, now we see that the Government is basically re-doing its Brady search, there is another problem that we have, and that is that the Government continues to seem to not understand what Brady is, and what their obligations are under Brady.

And, for that I would like to look at three specific requests, and it is detailed in our motion to compel discovery no. 2…Requests that we submitted it to the Interagency Committee Review; the President’s Intelligence Advisory Board [PIAB]; and the House of Representative’s Oversight Committee.

The Government apparently believes that our requests to each of these three agencies for information is not specific enough to trigger their rulings requirement under Brady. And, if the Court will indulge me for a moment…I will read exactly for what we asked for and when we asked for it: For the Interagency Committee Review, the defense requested, “The results of any investigation or review concerning the alleged leaks in this case by Mr. Russell Travers, the National Security Staff Senior Advisor for information access and security policy. Mr. Travers was tasked with a comprehensive effort to review the alleged leaks in this case. We started asking for that in December of 2010.”

The with regards to the House of Representatives Oversight Committee…

Judge Lind

Let me just ask you a question? How do you know if the interagency committee…if he is tasked?

Defense (Coombs)

Yes. that is a great question, because this is the only way we actually find out about Brady information. Is that someone from the Government indicates in a public press account or what not that this is ongoing. In this case the Interagency Committee Review, the White House indicated that they had tapped Mr. Travers to head up this Review and to look into the impact of the alleged leaks. So it’s a public statement by the White House. And, based upon that, that is why we submitted out 8 December 2010 request saying hey, “We are aware of the fact that this is ongoing. So, we asked the Government, now with a specific request under No. 3 with regards to 701(a)(6) to go take a look at that information. And, again, the Government has maintained that a request like this read to you, is not specific enough to trigger the rulings requirement under Brady.

With regards to the House of Representatives Oversight Committee, we asked for the results of “Any inquiry and testimony taken by the House of Representatives Oversight Committee, lead by Representative Darrell Issa. The Committee considered the alleged leaks in this case, the actions of Attorney General Eric Holder, and the investigation of Pfc. Manning.” We asked for this in 10 January 2011. And again with this, this is based upon public statements and public accounts of the fact that Representative Darrell Isa was in fact convening these reviews in order to determine what was going on at that point, both with the Department of Justice and in the investigation of my client. So, probably the Department of Defense.

Judge Lind

Mr. Coombs I have a question for you. I am looking at Williams, and where is the three other files designated in the defense discovery request which involved the specified type of information within the specified entity and the line we are on case by case? Where is that line? Do you ask for everything for everybody under the sun that ever touched this case? Where is the line?

Defense (Coombs)

That is a great question, because you are right. You have got to give enough specificity in order for the Government to know what you are asking for. That is why I read these two requests. These are basically, in the defense’s mind, very specific. They name an individual. They name a time period. They name what is happening. It has to be something that we require from then Government, from its good faith due diligence requirement, to at least go look. And, when you take a look at the third request, which the Government does say is sufficient, and that is the President’s Intelligence Advisory Board [PIAB]. We asked for “Any 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 [PIAB].”

And, then the defense in any stretch of your imagination, cannot understand how that request is specific enough in order to trigger the Williams requirement, but our other two requests are not. I mean really short of telling the Government, “What it is in a red file within Darrell Issa’s third drawer, beneath his Bible, you’ll find what you want.” That the Government at that point is on notice for what we are asking for, and they have a good faith obligation to go look. The defense recognizes that the Williams requirement is not so vague that we can just simply say, “Give me any file of any agency at any point had addressed this case.” That would be too vague. But these are specific requests.

And, the Government comes back saying, we provided no authority to suggest that these specific requests that we have asked for fall under Williams or 701(a)(6). The problem with that is that we are asking here for these records, and the Government comes back to us saying, that again “The defense has not provided sufficient requests for Brady,” and they go back to whether or not these records “alleged” records.

With regards to using “alleged” records the defense believes the Government again is just playing hide the ball. These are not alleged records. These are records that we have given them sufficient specificity to trigger their good faith obligations of the ruling. And, more importantly, there is no ever requirement above beyond giving the specificity within Section 3 in detail to the Government why this information may in fact be Brady. To the extent that someone might read that in, the very nature of what was going on in these various agency is clear that Brady material may exist there, and that is the whole purpose of triggering the good faith requirement that the Government go look.

And, yet the Government is just simply saying, “No.” They are content in not looking. We say apparently not looking at every agency besides the President’s Intelligence Advisory Board [PIAB]. That apparently was specific enough for them.

It is relevant, Ma’am because if the Government is saying for example, lets go with ONCIX [Office of the National Counterintelligence Executive]. It’s Brady review…if they tell the Court that they have only reviewed 15 pages of documents, we know then that they have not done a due diligence search within ONCIX [Office of the National Counterintelligence Executive]. We have a problem there, because ONCIX [Office of the National Counterintelligence Executive] has tasked all these agencies to respond back to them. So, just having the Government indicate how many pages did they review from whatever agency and then, what were the results of their review? That should not be an onerous task on the part of the Government. Brady in this case is a constitutional mandate. It is a right of the Accused in order to have this information. And the timeliness of this is as soon as practice. That is when this information needs to be provided to the defense so we can in fact incorporate it into our case. Because it could address issues of guilt and obviously issue of punishment. But the defense can’t do that if we are receiving it piecemeal or if the Government is not at all complying with its Brady obligations.

Once we have a complete account of what the Government has done, then that goes to the second request of the defense to order a timely production of this Brady information. And, not in this piecemeal fashion that we are receiving now. But, get the information together and turn it over. So that we can adapt at that point start to incorporate it, where we have all the information at once. And, the defenses position would be: Once we have all of the Brady discovery, and we will argue for the motion to compel discovery 2, the 701(a)(2) discovery. Then the defense would need at least two months, to incorporate that information into its case in [MISSING]; and into its sentencing case.

And, when you look at the timing that the defense is asking for, you have to remember that the Government has had access to this information and these other agencies for over two years. When the Court takes a look at what the Government has in its aggravation case, then be clear what the Government has done as far as coordinating with other agencies: which agencies they have reached out to and used the information from. Government has been using this time to perfect its case all the while keeping the defense in the dark with regards any discovery for us to perfect our case. So, two months of additional time after they fully comply with the schedule, we have no more discovery issues, is at a bare minimum, the time period the defense would need in order to incorporate this information.

Defense (Coombs)

Again, Ma’am the defense requested not only the due diligence, as far as doing an accounting, but secondly we asked this Court to order an immediate production of Brady discovery. When you look at 701(a)(6), the rule clearly indicates that this information needs to be turned over as soon as practical. Two years into the case and we are still asking for this information, hardly qualifies as soon as practical. And, again looking at some of the agencies that we have asked for information…and I know that the Court plans to go through these agency by agency…but just taking a look at the Brady we have been specifically requesting for and the Government has not either provided the Brady or not responded in an adequate way.

With regards to Interagency Committee Review, and the President’s Intelligence Advisory Board [PIAB], and the House of Representative Oversight Committee. Taking them in order. With respect to the Interagency Committee Review the Government states that the defense failed to provide any basis for its requests. And, the authority that the Government is looking for is this case is Brady

With regards to the President’s Intelligence Advisory Board [PIAB], the Court looks at footnote four of the Government’s brief…there the Government states that the prosecution is in the process of searching for discoverable information from the [President’s] Intelligence Advisory Board [PIAB]. Why is the Government just in the process of searching for this information. We asked for this information over seven months ago, and the Government is saying that they are not just in the process of doing this.

We are just months before trial and they haven’t even apparently completed this aspect.

With respect to the House of Representatives Oversight Committee, the Government maintains that two things: One, it has no knowledge of such records, and second, that the defense has not stated an adequate basis for its request. Well again, the basis that the Government is looking for is called Brady.

And, with regards to the adequate no knowledge of the records, the Court has already said, that is not an adequate response. You have to indicate that you have at least done a good faith attempt to go search for those records. So, in this regard the Government’s response again their intend to not provide the Brady that the defense is requesting.

Judge Lind

Mr. Coombs, are any of these entities in any way involved in the prosecution of this case?

Defense (Coombs)

These entities, not the prosecution Ma’am, no. When we take a look at what these entities have done, they have taken a look at the leaks in this case, and any possible damage that may have happened, and what corrective steps were taken. So, the fact that these agencies would possibly have Brady is clear, just from the call of what the agency is doing. The agency is looking at the alleged leaks, and making a determination if any damage was done, and if so what steps need to be taken; and if not then obviously the agency would say no damage was done. That would be classic Brady material. And that is why, they are the third prong of 701(a)(6). When the defense asks for by name, and gives specificity that triggers the Government’s obligation of the ruling to at least go look, and then come back after exercising good faith effort to look and indicate whether or not that information exists. They can’t just simply say they have no knowledge and haven’t stated the correct basis.

When you look at our motion to compel discovery 2, we believe there are huge problems with regards to Brady in this case. We still haven’t received all Brady from DIA [Defense Intelligence Agency], DISA [Defense Information Systems Agency], CENTCOM, SOUTHCOM. The HQDA [Headquarters Department of the Army] memorandum that we pointed out with regards to due diligence. No Brady from that. Brady from the Department of State, FBI, Department of Justice, ONCIX [Office of the Counterintelligence Executive], ODNI [Office of the Director of National Intelligence], DSS [Diplomatic Security Service with the Department of State], CIA. Brady from the sub agencies within the Department of State. The ones that we have identified, the WikiLeaks Working Group, the Mitigation Team, the Report to Congress; the identity of individuals who might be at risk.

Judge Lind

Let me stop you there for just a minute. The entire CIA, DIA [Defense Intelligence Agency], DISA [Defense Information Systems Agency], CENTCOM, and SOUTHCOM files relating to Pfc. Manning, WikiLeaks, and damage to from documents, reports, analysis, files, investigations, letters, working papers, damage assessments…

Defense (Coombs)

Yes, Ma’am.

Judge Lind

Is it the defenses position that the Government has to search every file in the DIA [Defense Intelligence Agency], DISA [Defense Information Systems Agency], CENTCOM, and SOUTHCOM?

Defense (Coombs)

With relation to this case, yes Ma’am, because these are agencies that the Court has found are within the military’s custody possession and control. So this would be no different from saying I want the entire CID [U.S. Army Criminal Investigation Command] file. It is an agency within the military’s possession, custody, and control. So, they have not only a Brady obligation, just in general. But, this is a 701(a)(2) obligation at this point. To hand over records that are material to the preparation of the defense. No Court would even question the fact that a CID [U.S. Army Criminal Investigation Command] case file is material to the preparation of the defense.

So, again to the extent that [Defense Intelligence Agency], DISA [Defense Information Systems Agency], CENTCOM, or SOUTHCOM have independent case files or files relating to these alleged leaks then yes, that would fall right in with the CID [U.S. Army Criminal Investigation Command] case file, material to the preparation of the defense. We should get the entire file, not some sort of redacted version, unless of course we are talking classified information and the Government goes through the proper procedures.

Brady from the 63 agencies. We have talked about the fact that we have just gotten now 28 so far. And, it is unclear when you look at the time period that we received these and it looks like they were done based upon a 2010 or at the very latest an early 2011 request by ONCIX [Office of the National Counterintelligence Executive] or ODNI [Office of the Director of National Intelligence]. And the response is in that same time period. Either late 2010 or early 2011. So, it looks to me like a snap shot of the effect has it had on your agency at this point. It is unclear whether or not any of these agencies did a follow up evaluation. because now you are talking almost two years later. So, again some serious concerns about Brady with regards to the type of information that we are receiving.

So, all these outstanding questions support not only the defense’s request for due diligence accounting, but also once we have the due diligence accounting we know exactly what the Government has done, what still remains to be done, then a time line for when the Government has to turn this stuff over is the next follow up step. And, I do know that in my motion earlier this morning I for due diligence, I asked the Court to request four questions of the Government. I clearly whatever the Court would deem would be appropriate to find out has the Government done its due diligence requirement for Brady, that would be perfectly acceptable with the defense. Basically what we want is just an accounting of what they have done. And, if they have nothing to hide there should be no problem with that.

So, whatever the Court believes to be appropriate for the Court to make that determination would be acceptable to the defense.

Now, third the 701(a)(2) information that we requested. The Court order of documents that falls under 701(a)(2). Documents within the possession, custody, and control and which are material to the preparation of the defense. We had the argument, they have to be relevant; but something that is within their possession, custody, or control. And, when you take a look at this area, before I get into this. I do want to highlight again the issue of definitions. The Government seems to be…their main objection to our 701(a)(2) discovery requests are they simply do not understand what we are asking for. That seems to be the main reply time and time again, and we highlighted that in our motion. And, it appears to be what they are saying is, that when we ask for damage assessments or we ask for investigations that is not the correct terminology. And, we had a little 802 session to determine what it is that the Government needed to hear in order to understand what everyone does know what we are looking for. And, that is any evidence with regard to these alleged leaks and harm or lack thereof at what cost, in order for us to prepare for case or for our trial.

Now, the Government has said again, that with regards to much of this information, that we need to use the term “working papers”, and so we added that terminology. And, when we added that terminology, in order to allow the Government to see what we are looking for, again, “the documents, reports, analysis, files, investigations, letters, damage assessments, investigations, working papers”…we put all that in and renewed our request for much of this information. And now, the Government came back and said, before it was too narrow…and now it is too broad. And, it is unclear what information we have to provide the Government for them to understand what we are asking for, but it is basic. And, we have been asking for this really since the very beginning. As the Court recalls our very first 802 session, even before the Arraignment, we did a telephonic 802 and the defense alerted the Court it would be filing certain motions. Right at the very first motions hearing, we would be asking for certain things and we told the Court we have been asking for these same things since day one.

And here we are still asking for these same things. So now with that background lets take a look at what documents are within the possession, custody, and control of the trial counsel, and what are documents that are not or at least what they believe are not.

The 701(a)(2) lays out the requirement here and at least from the documents that we have asked for I would like to cover some of the things that there is no dispute are within the possession, custody, and control of the trial counsel.

The first is HQDA [Headquarters Department of the Army] documents. In this instance, HQDA [Headquarters Department of the Army] which is of course part of the Army that is clearly within the possession, custody , and control of the trial counsel. There is no question as regards to that. And, it is also self evident why we are asking for that information. The Government states that first, the defense did not put the prosecution on notice as to what the defense desires with regards to the HQDA [Headquarters Department of the Army].

Second, they say that the defense has not provided an aggregate basis as to why all the information within HQDA [Headquarters Department of the Army] is material to the preparation of the defense. Well, taking those in turn, because their arguments don’t make any sense. The defense desires what the HQDA [Headquarters Department of the Army] memorandum is asking for. That is what the defense desires. And with regards to material preparation of the defense, lets take a look at what the HQDA [Headquarters Department of the Army] memo was asking for, and again that is Attachment A to our motion.

That memorandum states that any documents or files with material pertaining to any type of investigation, working groups, resources provided to aid in rectifying the alleged compromise of Government information, damage assessments of the alleged compromise, or consideration of any remedial measures in response to alleged activities of Pfc. Manning or WikiLeaks.

That is what the HQDA [Headquarters Department of the Army] memorandum is asking for. So, again it is self evident as to why that would be relevant and why that would be material to the preparation of the defense.

The Government cannot say, “Hey we don’t know what you desire?” or “You need to identify why this information would be material to the preparation of the defense.” That is not onus on the defense. If the Government believes that some of that documentation is not material in the preparation of the defense, the Government goes to the Court, and says, “Hey. This stuff is not material to the preparation of the defense.” But they don’t just simply say, “Nah. We aren’t going to give it to you.”

By opposing discovery, especially discovery with regards to HQDA [Headquarters Department of the Army], they just simply look like they are trying to hide things. Instead of doing what their ethical obligations are, and that is to produce the documentation.

Well I would go as far as siding for my basis, but they are closely aligned in this case, because as you start to look and unravel the relationships between the various agencies, ONCIX [Office of the National Counterintelligence Executive] it’s clear took the lead along with ODNI [Office of the Director of National Intelligence] of contacting all the agencies that might have been impact by the Department of State releases, and they identified each of the cables that were relevant to that particular agency…and they ask them, “Take a look at the cables. Tell us if this has caused any damage or any impact on your organization and if so how. And, if you have had any impact tell us what you are doing as the remedial steps and the cost of those remedial steps.” And so that information goes back to ODNI [Office of the Director of National Intelligence] and ONCIX [Office of the National Counterintelligence Executive]. And it is clear that ODNI [Office of the Director of National Intelligence] and ONCIX [Office of the National Counterintelligence Executive] are leading this based upon probably a Department of State request and the fact that the Department of State is closely aligned with DoD [Department of Defense], part of a joint Investigation. That is how all these agencies are connected. The defense also believes if you start to look at the aggravation evidence, you will see where the Government has obtained their information and how those agencies are closely aligned as well.

In addition to that, in this instance ONCIX [Office of the National Counterintelligence Executive] clearly is the repository of what damage may have been caused by these alleged leaks. [MISSING] So, that information is being shared with the Government again, they are closely aligned.

Now the defense maintains that when you are requesting discovery from agencies that are participants in a joint investigation or who are closely aligned with the Government that this would fall under material that has been in the possession custody or control of the trial counsel under 701(a)(2). Now if we previously argued this in regards to obtaining the testimony of the Grand Jury as to why this is in the military possession, custody, or control [missed].

And the Government at that point as well as in this motion, has maintained that the correct analysis for this Court is on the turn, “military authorities”. That is their “correct analysis” for their 701(a)(2). But its not. The correct analysis is what is within the possession, custody, and control. That is the term that the Court has to look at.

Judge Lind

How do you support that with the analysis of the R.C.M. 701(a)(2)?

Defense (Coombs)

In what respect Ma’am?

Judge Lind

It says, “Except for subsection (e), the rule deals with discovery in terms of disclosure of matters known to or in the possession of a party. Thus the defense is entitled to disclosure of matters known to the trial counsel or in the possession of military authorities. Except as provided in subsection (e), the defense is not entitled under this rule to disclosure of matters not possessed by military authorities or to have the trial counsel seek out and produce such matters for it. But see Mil. R. Evid. 506 concerning defense discovery of government information generally. Subsection (e) may accord the defense the right to have the Government assist the defense to secure evidence or information when not to do so would deny the defense similar access to what the prosecution would have if it were seeking the evidence or information. [See United States v. Killebrew, supra; Halfacre v. Chambers, 5 M.J. 1099 (C.M.A. 1976).]” I guess when I am looking at that I seem to be flipping over 703.

Defense (Coombs)

Your, Honor. I do understand. That analysis when you also compare that analysis with the analysis with R.C.M. 701(a)(2) as to how that rule was patterned after Rule 16, the analysis that the defense would believe that the Court has to go to first. Rule 16 and 701(a)(2) are identical in every respect besides that Rule 16 uses the word, “Government”. Rules 701(a)(2) is suppose to be more expansive, not only possession of the trial counsel, but also in possession of military authorities. The analysis that the Court just read applies to possession of military authorities. And that is why 701(a)(2) and discovery in general in the military is much broader, because we say not only what is in the hands of the trial counsel but now anything that is in the hands of military authorities you have to turn over.

So, that whole analysis is spot on, the analysis you just read is totally correct with regards to military authorities. But the determination the Court has to make here is what is in the possession, custody, and control of the trial counsel? And, that is what the defense is saying, if the Court looks to Rule 16 and holds to the Federal precedent, because unfortunately there is not a lot of military…there is actually none, because these issues usually are not really litigated, but you have this same issue come up in the question of what is in the hands of the US Attorney?

And, Federal Court after Federal Court after Federal Court rules that look if the U.S. Attorney goes to agency x and takes the damage of his or her ability to get files and records form that agency, and they are part of a joint investigation, or they are closely aligned, or they get the benefit of that relationship…that U.S. Attorney cannot then say that. “Their records are not within my possession, custody, or control.” They have to at that point in a matter of fairness say that if the defense is asking for records from that same agencies, those records have to be produced.

And, the Trevino case actually lays this out, and kind of a plain language, it just simply has to be true. The Trevino case says, look, “If we would allow the Government to do that: partake of working with other agencies that from a standpoint of just looking at, are clearly outside of the normal custody, control, or possession of that Government US Attorney. You allow them to do that, and then leave anything that is harmful that would in fact have to be produced to the defense, because it is material to the preparation of the defense, leave it at that other agency. Then you would be in the situation where a U.S. Attorney would have every decider to involve some other agency. The same should be true here in the military.

If the trial counsel takes advantage of a joint investigation with the FBI, with the DSS [Diplomatic Security Service of the Department of State], with the Department of State, and then at other agencies, the Department of Justice, if they take advantage of going to…that is why it is going to be important to see what aggravation they have. If they take advantage of going to various agencies and cherry picking the information that is beneficial to that case, and then leaving it in the repose of those agencies anything that would be material to the preparation of the defense. Then you are in the absurd situation, an accused in the Federal system would fair better than an Accused in the military system. Because, an Accused in the Federal system could say to his civilian attorney, “Hey. Go push the judge under Rule 16 to get me possession, custody, and control of those records at those other agencies.

And time and time again, Rule 16 and the cases that we cites, judges say, “Spot on. That is correct. The Government cannot take the benefit of evidence and then turn a bling eye to your request, under Rule 16.”

In the military, the military accused where he or she could not ask the military counsel or civilian counsel to say, “Hey. Force the judge to make the Government produce those records, because it isn’t in the military possession, custody, or control.” Couldn’t do that. And that would fly in the face of just about every case that discusses discovery in the military system.

Every case says that an Accused in the military enjoys a broader right to discovery than his or her Federal or state counterpart. So, that would not be true in this case.

Judge Lind

Talk to me about is there a reasonableness aspect to it. I am looking at the [US v.] Libby case, where they wanted the entire CIA briefing book, and the judge said, ‘Well. you get some, but not all of it.”

Defense (Coombs)

Right. There certainly is, Ma’am. The Libby case is a great example where the Government said, “Hey.” They got the full advantage of getting cooperation with the White House and other agencies to get records, and then they tried to say…the U.S. Attorney tried to say, “Hey. This is not in our possession, custody, or control.” And the judge said, “No. No. No. Wait a second. You don’t get the benefit of going there and then now [MISSING] down to say, ‘Sorry, its in some other agencies file cabinet, not ours.'”

There certainly is a reasonable standard. And that is why, in this instance, the reasonableness defense would argue is anything that is dealing with the alleged damage or lack thereof from these leaks; anything dealing with Pfc. Manning specifically; and or anything dealing with any sort of remedial steps taken after the [MISSING], after this whole process.”

So, if you take a look at why we are asking that, it is clear that that would be material to the preparation of the defense. Just for argument sake, even though the defense hasn’t seen anything to that extent. But, say, there is something out there that says, “It was just terrible. End of the world damage, because of this.” That clearly then influence the steps that defense may or may not take, for their preparation for trial moving on to…

On the opposite side, if all these other agencies looked at it and said no damage whatsoever, then it would have a similar impact in what we do and the decisions that were make. And so that is why that stuff has to be deemed within their possession, custody, and control, if in fact it is a Joint Investigation for a closely aligned agencies from the defenses’ position.

Now, this again goes back to, and the Court is correct in saying on a lot of this stuff turns on what does the Government intend to use on aggravation. And that is the next request that the defense is asking for: that the Court order the Government to produce the evidence it intends to offer in this case issue or the sentencing that deals with evidence from these other agencies…either aggravation or an attempt to prove a particular element if they are relying on some other agency for this information.

Because, when the Court sees that then it becomes clear the extent of which the Government has had the ability to work with these other agencies to perfect its case. And for arguments sake, lets say there is something from the Department of State that they are relying upon, that they are getting. Well, you shouldn’t be able to say that that agency’s records are not within your possession, custody, or control; but when the defense is asking for that you say, “No. We can’t” or ONCIX [Office of the National Counterintelligence Executive] or ODNI [Office of the Director of National Intelligence].

So that is why the defense is asking you to look at that, not only for the purposes of deciding what is in the military’s possession custody or control; but the also when you are taking a look at their due diligence and their Brady, but they are 701(a)(2) responsibilities.

Because, if you see that the Government has spent all this time to the detriment of providing discovery to the defense, that again supports the need for an accounting, the need for immediate production, and possibly the need for additional time for the defense to incorporate this information.

So [MISSING] your questions.

Judge Lind

Can I see the Court calendar for just a moment please?

Unknown Male

Appellate Exhibit 112 is a closed one. The Government’s is 113.

Judge Lind

[missed] while we are on the subject…Thank you. Apologize.

Not stated that way. That is not our position, you Honor. It is just simply under 701(a)(2). So open the files, because 701(a)(2) is essentially the open file discovery that makes our system so great in American jurisprudence that we have more. We just hand them the file at [MISSING] and keep handing over documents. This prosecution the Government has done in this case except for very specific classified information, which is what the subject of litigation.

So, the defense continues to focus on 701(a)(2) in preparation of the defense within military authorities. Again, general requests even if it is within military authorities, and if it is outside continue. It wasn’t until now in the Court’s last ruling that now there is a last conference that says, “Oh, and by the way 703.” So bottom line your Honor. The Government does acknowledge that if they make the relevant and necessity argument, and the Court rules in favor under 703, and compels production of certain material. First the Court needs to know what exactly they are asking…thus the Court will know what to order…instead of all files, all information…and then at that point…absolutely…the Government then is compelled…ordered by the Court to go forth…grab those documents…through the different processes, and if the custodian does not want to freely turn over the documents the 703(f) provides me procedures to go forth if its classified…and that is a reason not turn to over, 703(f) has those procedures built in deploy [M.R.E.] 505…then at that point, yes. The Government is going to comply. That is why we are here today. And, that is why this process is set up.

Most of these if we go through will bring right back to this point…overbroad requests…semantics do matter. This is a trial. If the defense wants a damage assessment that is what…they gave us notice…specific notice…is prosecutors…in material preparation of defense standards…the Courts have held that you have to give the prosecution enough notice of what to go find…and we have told the defense over and over again. You did not provide us adequate notice. And, once there was enough confusion on the difference between the an investigation and damage assessment, the prosecution voluntary provided the Court and the defense a legal brief, not a arbitrary brief, based off of legal citations of what the difference is between these terms to help guide the defense.

But instead the defense is trying to open up Government’s spouts, by taking a standard of William’s that CAAF [Court of Appeals of the Armed Forces] held for interpreting the Brady obligations under 701(a)(6), using the term, “closely aligned”…using that definition and that terminology that we have on the record for the defense listed as a prosecution every entity we consider closely aligned, based off our relationship as prosecutors with those organizations, based off Williams or closely aligned.

Therefore, we have the obligation to search for Brady material, 701(a)(6), material in those entities. Above and beyond that requirement, the prosecution has also outlined for the Court that we have undertaken entities that we might have the additional ethical obligation to search. So, to go back to Government briefed the Court in previous motions hearing, at the end of the day there are now six ways that have come up for this information…six authorities that the defense can chose…I’m sorry…the Government has an obligation to produce material.

701(a)(2) is within military authority…a specific request. And, we litigate it if we agree, and we did it…if we don’t we litigate it and the Court orders us. The next three are the Williams, the buckets of Williams, Brady Material, 701(a)(6). So, joint investigations for the prosecution, closely aligned organizations, and then finally specific requests from a specific entity for Brady material. So that is the first and then the third. The next three. The last one we have always maintained is our ethical obligation. So, if its not a specific request from the defense, it’s not closely aligned with the prosecution, or it’s not a joint investigation, we as attorneys could still have a good faith basis that information could exist. Therefore, we have an obligation, ethical, to find it and disclose it. If it exists and it’s Brady material. And we have outlined all this in the prior filings as well…all the different organizations. And that is why the number 63 the defense keeps using.

Judge Lind

Let me ask you a question. Defense, in oral argument, advised the Court in response to reasonableness question, that they were looking for these entities of files that involved direct damage from the alleged leaks, files involving…labeled involving Pfc. Manning, and remedial steps to litigate those leaks…does the Government consider that specific enough?

Prosecution (Fein)

Your Honor, may I have a moment?

Judge Lind

Yes.

Prosecution (Fein)

I would like to pull an Appellate Exhibit. [missed] Your Honor, the Government requests the Court to please reference Appellate Exhibit 12. Appellate Exhibit 12 is the prosecutions supplement to the prosecutions proposed case calendar. And in that Appellate Exhibit, the last enclosure is a sample memorandum that the prosecution sent out to different organizations to determine who were closely aligned under the Williams case. And I think this will answer another question as well.

The prosecution in anticipation based upon [missed]. The prosecution understands the severity and the broad impact that the charged offenses have on the Government, anticipated a discovery…I guess potential discovery issues. So in order to get ahead of that, as previously described in this Appellate Exhibit, the prosecution [missed] without the defense request, sent out these memoranda. This is a sample memoranda, your Honor. And if you look at the language…I will direct you on that enclosure to the second page…the first paragraph of the second page states…”as indicated above, the prosecution requests that you, [missed] conduct an immediate and thorough provincial search of your records for the information above, and that information is a person identifying information of Private First Class Manning and other types of search terms related with this prosecution and the all [missed] investigation. So, any information identified with First Class Manning and also for any information directly concerning Private First Class Manning, including but not limited to any documents that discuss damage or harm cause by Pfc. Manning and WikiLeaks and any measures considered particularly in response the activities of Pfc. Manning and WikiLeaks.”

So, the prosecution did on their own, was to submit these requests for the entities to search, finding these records, preserving these records, so the prosecution can search through them.

What the defense is trying to do at this point your Honor, is to say that because the prosecution affirmed or recognized that this might become an issue, they are using the same terms that HQDA [Headquarters Department of the Army] used in their execution of this request that was sent to the Department of Defense by the Army prosecutor. To suddenly say that, that drives what is material to preparation of the defense versus the most broad application of anything that could potentially that could potentially even deal with Private First Class Manning and this court martial, which was the prosecution’s intent as evidence in this example, to find a population of documents and information not files, not centrally located documents organized in a manner that we easily identify, pull, search, produce…but find the information, tent the information , and then allow the prosecution to do due diligence [MISSING] at the macro level.

But what is happening it appears, is that that same process…that exact language that was used by the prosecution to do this, is now being used [missed] in preparation of the defense. Every document that deals with WikiLeaks, every document that might Private First Class Manning’s name on it, doesn’t necessarily make it related this court martial. And, that might sound odd at first, because it is Private First Class Manning’s court-martial for compromising national security information through WikiLeaks, but it doesn’t necessarily mean it all [missed]. The defense is required under the rules and the applicable [missed] rules, to submit a specific request to specific entities. And, then depending on that request we can then litigate today what they ask for, whether it is or is not disclosable.

Judge Lind

So, all these…? I guess I am going to interrupt you for just a second to ask the defense…the discovery that you got, what percentage of it is redacted?

Defense (Coombs)

A very large percentage of it Ma’am. In fact, I could give you now an example of an unclassified redacted [missed] information that we have received that is from the FBI, that also the defense would also ask the Government to provide to the Court, just two examples bates numbers 447635, 447640 that is five pages there, and 447608 through 447626 just give you an example of the type of information that we are receiving from the Government form the FBI file. Normally, what happens is we receive pages that the lion share of it is simply black, the entire page is black. And, those goes to our identification of Brady information for the motion that Captain Tooman will be arguing. But also it goes to the problem of the Government now saying that we are redacting the FBI file because we don’t believe it is material to the preparation of the defense or it falls under our Brady obligation. It is no different if they went to the [U.S. Army Criminal Investigation Division] CID file and said, “We are going to redact this, its not all that important to you.” They interview some witness that was unrelated, “So, we are not going to give you this.” They chose to redact the FBI file based upon their view of what is important to us. And, because this is a joint investigation, that can’t be acceptable.

No your Honor. Other than possibly for the purposes of authentication. But not for any other purpose. And, your Honor, as we have stated in previous filings and previous sessions…the only standard we are currently focusing on, because of the format of discovery is 701, 703, Brady, but also 914 if we go with someone testify, and of counsel any statement in any record the Government looked at that we know exists need to be turned over if they have been adopted by the Army witnesses that we are calling, and others if we qualify them as an expert, on the basis their opinion. So, there is the other rules that might apply to that [missed] tracking primacy of.

Prosecution (Fein)

Your Honor, the Government would at least have the chance to argue the due diligence first and then answer that depending on the Court’s order. But what the Government would say is that the defense seems to confuse the issue on what it has asked. [missed] referral they asked for any impact or damage assessment in the FBI general request, under 701(a)(2), the Government replied you are not entitled to it under that proper authority or proper legal basis or factual basis. So, once the Government learned of it, then we started working the approvals. But the Government is prepared to say, because I happen to know that answer your Honor, that it was just a few weeks ago…in fact I think it was three weeks ago…now again I said I think…I can confirm it at another time…that we received approval based off of our post summaries to turn over to the defense. The time of the day that we received it…I think it was the 18 May…that was the day we filed our 505(g)(2) for the other two damage assessment. That was the day we received the approval, and then the next two days defense started objecting into this procedure already litigated about disclosure of ex parte or not. At that point we needed to notify the FBI like every other entity that might entertain getting approval under 505(g)(2) that this is the procedure that might likely occur. So then they can weight that decision on how this works in handling information in the future and how they are going to disclose that. So, since then your Honor, we have had the approval to turn it over. It written in our motion. The defense even cited it before. 701(a)(6) says as soon as practical, as we cited in our motion. The moment this prosecution sees approval to turn over information unclassified, classified…as soon as possible turn it over to the defense…so once we get it, we start working on it. This is an example we didn’t have a process in place we notified the defense and the Court in our filing…it’s there, plus we have a process once we know how the Court wants to handle these…we are ready to go. And, we can keep being ready to go.

Judge Lind

Defense?

Defense (Coombs)

I guess if the Government is saying they found out about the FBI impact statement prior to or right at the time of their 18 May 2012 disclosure to this Court, then we have additional problems based upon what the Government said about the FBI in that disclosure to the Court, indicated that they had produced all classified and unclassified documents under 505(g)(1) that are relevant in this case with regards to the FBI. This goes back to the Government deciding on its own when its going to enlighten the Court or the defense putting certain information out there.

[Talking to the side. Reviewing a document.] Well it is the same…hold on.

OK. That is fine. Why don’t you just take it and the Appellate [missed] itself…

Unknown

OK.

Judge Lind

[missed] please announce for the record what Appellate Exhibit it is.

Prosecution (Fein)

Yes, you Honor…your Honor I have just handed Appellate Exhibit 125. I am also holding…so your Honor, I was just handed Appellate Exhibit 125, which is “Prosecution’s Disclosure to the Court” on 18 May 2012. I am also holding is this folder. It is a consistent application with what the Government has been saying. Um..the prosecution’s response to supplemented defense motion to compel discovery no.2 date 31 May 2012, which is Appellate Exhibit 100. Now I am looking at page four from Appellate Exhibit 100, and page two from Appellate Exhibit 125.

Judge Lind

Alright.

Prosecution (Fein)

…the due diligence argument.

We do your Honor. And we define as we have done in our five multiple filings for the purposes of clarity for the defense and the Court…the Department of Justice to be “Main” Justice, the headquarters, the immediate subordinate organizations in the headquarters, and the US Attorneys offices, NOT the subordinate agencies like the FBI and others for this purpose.

Prosecution (Fein)

Your Honor the Government first argued that they are not…do not fall under military authority…an intelligence agency therefor 701(a)(2) does not apply. We do consider them closely aligned for Williams purposes. We have started and continue to review their files for Brady material. We have not completed that. It is an ongoing process as well. There damage assessment or report has been produced to the Court and subject currently to Court’s order or future order.

Judge Lind

Are there other files that are germane?

Prosecution (Fein)

There are investigative files which we recently…or we previously spoke about…and those forensic results or investigative files have been produced to the defense.

Judge Lind

So what is left for the review?

Prosecution (Fein)

Judge Lind

Well, Mr. Coombs considering with the fact that the…[missed] efficiency perspective, I don’t see any point in examining a draft damage assessment when their is going to be a complete one in the beginning of July. Um..

Defense (Coombs)

See that whole analysis of knowing that there is a draft one should have been told to the Court at that time. And then if we find out that their is a draft one and they are actually they are going to complete it in July, well ok. We can look at the draft and then look at the completed one, because it may be that the completed one is just checking the i’s and the t’s, as opposed of actual substantive changes. But, the more important thing is that we would have been aware of it at that time. And, then could have dealt with it appropriately. At this point, again that pushes the can further down the road, when we should have been dealing with this early on.

Judge Lind

Alright. I understand your point.

Prosecution (Fein)

Your Honor. If I may clarify exactly what I just said, and more importantly, what the defense has conveniently not referenced in the motion itself. The referencing the letter that was sent to ODNI [Office of the Director of National Intelligence] from the prosecution team, signed by me, but in the filing, what I just testified…I’m sorry proffered to the Court, the filing itself, if you reference paragraph two, I will read it for the record, “On 11 May the Court held the Department of State’s draft damage assessment was subject to the Court’s previous ruling, see Appellate Exhibit…” so and so forth, “In response the prosecution shared that ruling with ODNI [Office of the Director of National Intelligence] and subsequently met with their attorneys on 17 May 2012″. So within six days of sharing we met with them in a meeting to discuss the issue of draft documents. “During that meeting ODNI [Office of the Director of National Intelligence] notified the prosecution on 17 May that ONCIX [Office of the National Counterintelligence Executive] has compiled a draft damage assessment which is likely similar to form to the DOS assessment, and thus would have fallen under the 11 May ruling.” It was from that meeting on 17 May that the prosecution did go back to our offices, we met at the exact same…at first there is a week in there, 18 May was a filing date, a weekend, and then the next part of the week, we figured out the best way forward to notify the Court and figure out what is going on with ODNI [Office of the Director of National Intelligence]. We then submitted a letter to ODNI [Office of the Director of National Intelligence], they responded, we notified the Court. That is what we outlined in the written version and what I described earlier. That is the first point, you Honor.

The second point is we even recognize in our letter to ODNI [Office of the Director of National Intelligence] that this is of course up to the military judge. Although we said, either we recommend…we anticipate in some of our letter 3 August, and we ask that you have it ready by 3 August is based off the Court’s calendar, and the very on page two…at the very last paragraph we even state to put them on notice as always, “Information requirements stated about are subject to change based off future Court rulings and order.” So, we even put them on notice based off of us notifying the Court and defense. So, if the Court was to rule sooner than 3 August, then they are going to need to respond, or we are going to need to respond based off their input.

And then the final point your Honor, and this is only for a point of clarification. In the letter from ODNI [Office of the Director of National Intelligence], they said that they anticipate having it done by…the final by July 13, but if not, then the most recent one without comment will be made available to make the 3 August deadline.

So, they are endeavoring to have it completed for that review. But, if they don’t they will make it available by then or whatever date the Court sets.

Judge Lind

Alright.

Defense (Coombs)

Now again based upon Major Fein’s representation, it appears that he is saying that 17 May is the first time the Government became aware of anything from ONCIX [Office of the National Counterintelligence Executive]. Previously he stated that they knew that that was the mission of ONCIX [Office of the National Counterintelligence Executive] and that they knew that they were always creating a damage assessment. So I don’t know which one that is: Whether they always knew that or they just found that out on 17 May? If that fact were true: the 17 May revelation were true then you would expect to see that somewhere within the 24 May memo to ONCIX [Office of the National Counterintelligence Executive] saying, “Hey, we just found out you have a draft damage assessment. We need to take a look at that.” 17 May is never referenced there. So, again this goes back to candor to the Court. If Major Fein is saying they were always aware that ONCIX [Office of the National Counterintelligence Executive] was creating a damage assessment they should have told that to the Court. If they are saying now that the only first became aware of that on 17 May then that is inconsistent with his previous statements and it is also inconsistent with the 24 May memorandum written to ONCIX [Office of the National Counterintelligence Executive].

Judge Lind

Alright, well I think I understand what happened on both sides.

Prosecution (Fein)

Now you compare and contrast that to what we ask for. “The result of any investigation or review concerning the alleged leaks in this case by Mr. Russell Travers, National Security Staff Senior Advisor for information Access and Security Policy. Mr. Travers was tasked to lead a comprehensive effort to review the alleged leaks in this case.” Comparing those two, if what was found by Army Court of Criminal Appeals to be a specific request, this is clearly a specific request. The Government…

Judge Lind

Looking at your case law you cited to me. If there are Federal and state entities involved in certain investigations…the case law that I read said that the Federal entity, unless there is an [missed] state entity doesn’t have to go and do a Williams Brady search. So, if defense argument to me is, if the defense just says, “OK I want state A, B, C, D, and E’s files” You basically go to any entity you want to.

Defense (Coombs)

Defense (Coombs)

So if you look Ma’am you will see a cover memorandum dated 17 April 2012 that is when HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested] realized that nothing had been done on the initial requests, and they put out a suspense for 23 April 2012.

The follow on page is the Army Staffing Corp and it encased there that key points of US Army’s prosecutor of Pfc. Manning. “The Army’s prosecutors are requesting the preservation and production of records.”

We know that basically this is their memorandum that they started sending out. And then says here: “It was only recently determined that [missed] been taking on requests that was dated 29 July 2011.”

Yes, your Honor. Documents. I mean there are no centralized file in any HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested] organization about WikiLeaks or Private Manning other than Army CID or Defense entities we have already had.

And the other, the Second Army [U.S. Army Cyber Command] 15-6 that was done directly by the Secretary of Defense, Secretary of the Army…that was already produced in discovery to the defense. Three military intelligence investigations that were produced to the defense. Two different [US Army Criminal Investigation Division] CID investigations that were produced to the defense. One USFI (US Forces Iraq) 15-6 has already been produced to the defense. One 1st AD [1st Armored Division] 15-6 that was produced to the defense. So Department of the Army files that are being produced to the defense, especially anything within our actual prosecutorial files that we intend to use at trial both on merits and sentencing. This is HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested] staff documents based on our due diligence request that we just received in the last thirty days, or since defense filed their initial motion…that we are now starting to review originally for Brady purposes. And again, you know how these documents…material to the preparation of the defense, and we have them now, and we will start reviewing them as well. If we find anything material to the preparation of the defense we will turn it over to the defense.

Judge Lind

OK.

Defense (Coombs)

Again, this would be the addition of the discuss for the due diligence but it the timing not only when you made the initial request, but did you follow up when you didn’t receive anything back? And it is clear here that if we did not receive this memorandum we wouldn’t know that HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested] did ask or didn’t respond back to the request. This went out to all the principles, this wasn’t just HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested]. This was all the principles within HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested], and that is how it landed on DS’s desk.

Well, you Honor, we would at some point in the future we are going to discuss the due diligence, certainly the due diligence argument that Mr. Coombs set forth earlier today, we think ties into a bad faith. We think the way the Government answer what seems to be very clear questions from this Court, in sort of elusive ways amounts to bad faith. What we talked about today with ONCIX [Office of the National Counterintelligence Executive] where the Court asked a very clear question: Is there anything from ONCIX [Office of the National Counterintelligence Executive], and the Government says , “No,” and they play semantics, when it is clear what the Court is asking. When the Court asks the Government is there any one from the FBI testifying, “Yes for sentencing or to maybe authenticate a document,” and then ten minutes later they talk about someone testifying from sentencing, but they don’t talk about that with your original query, because that person is technically not an agent. It is clear what the Court is asking. And so, this is the sort of attitude the Government has had throughout this case. It is clear. We don’t check common sense at the door your Honor. It is clear what is being requested, and the Government just isn’t [missed]. And finally, just the fundamental misunderstanding, the Government has had throughout this case, for basic issue for basic principles of discovery. A couple months ago, this Court ruled that the Government didn’t understand Brady obligations. And now today the Government, two years after this trial started is explaining to the Government basic principles of 701(a)(2).

So, the issue is…is he physically located there are the TS (?) office near him or is he in the local area at this DF office at Myers, when he was at a previous confinement facility, he was moved to Fort Myers out of Major Kempkes’ office with a safe. So everywhere the defense counsel that he held ITDS on the [missed]. They been granted security clearances. They have been granted safes. They have even safes in their offices. Big five four safe to hole whatever it is. They have been given computers. Stand alone, classified computers, three of them…to be able to use them in any manner, essentially under the protective order. They see fit. If they wanted the ability to move on to Fort Leavenworth, they can do that. If they want the Government to send information to Fort Leavenworth, as we requested when they Captain Tooman came on board, they opted not to have that happen. They opted for the material to stay in the local area. The only time the Government, to the best of my recollection, has denied initially a request for resources, was setting up a Government facility for the civilian in this counsel, Mr. Coombs, near his office, in Providence Rhode Island. They had discussions with the Court, the defense protective order, the Government even set up a facility within 30 minutes drive for Mr. Coombs to prepare. So, every defense counsel, including a civilian, can prepare the case. The Government has a Fed Ex Account to move classified information. The thing is available, we just have to be asked. And, at this point, other than pulling Private First Class Manning out of confinement, for the original meeting, we have never not been able to execute a reasonable request or any other request at this point. That resources your Honor, and Private First Class Manning’s access to information.

Corporate assistance. It is essentially the same issue. Private Firm Class Manning chose to hire a civilian defense counsel. If the law firm of Mr. Coombs needs more help, they can hire more people. All they have to do from the Government’s perspective is to provide notification to the Court, get a security clearance, and we can have more people working on this case.

If they need more military defense counsel they need to ask PDX. And, to the best of my recollection no one has asked. But, no one has addressed that with the Government, to help with that. So, they can have more resources, they haven’t asked. So the defense counsel can hire more people, but that has not occurred. So, again this is just a way for the defense to have the Government prepare its case in order to defend Private First Class Manning, instead of taking the time that they have to review the documents, that we have already reviewed and turned over.

Ask any of other questions, your Honor. We rely on the main portion [missed]

Defense (Tooman)

Your Honor. At issue right now today, may be 7,000 pages. But, we don’t know what is going to be at issue a week from now, or two weeks from now, or a month, or two months from now. So, while the case has been cites, maybe have pointed to cases where there is lots and lots of discovery, it is not out of the realm of possibility that that could be the case here. And, so we are trying to get out in front of that. Here, the Government knows the defense theory. That has been pretty clear over the last few 39a sessions that there is no damage. So, the Government saying they have to do the defense case for them, prepare the defense case for it, in fact one of the cases cited, talks about how in order for the Government to identify Brady, the defense needs to tell the Government the theory. Well the Government knows the theory. The theory is that this week these alleged leaks haven’t done any damage. So, the Government is well aware of that.

Prosecution (Fein)

No your Honor.

Judge Lind

Court is in recess.