Transcript | US v Pfc. Manning, Article 39(a) Session, 11/07/12
- posted November 7, 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 transcript of the Article 39(a) motions hearing held on November 7, 2012 at Fort Meade, Maryland in US v Pfc. Manning was taken by hand from the public gallery. It, therefore, may contain omissions or errors. All amendments or updates will be noted.
- Judge: Army Col. Denise Lind
- Prosecution: Major Ashden Fein, Captain Joe Morrow, Captain Angel Overgaard, Captain Hunter Whyte
- Defense: Mr. David Coombs, Captain Joshua Tooman, Major Thomas Hurley
- Lt. Col. Paul Almanza, the Investigating Officer at the Article 32 Pretrial Hearing
- Mr. Bert Haggett, Security Specialist at Department of the Army, described by the Government as a expert on classification who reviewed the unclassified Army CID file.
ALL RISE.
Judge Lind
Please be seated. This Article 39(a) Session is called to order… Major Fein…?
Prosecution (Fein)
…Captain Morrow present… …Robert Shaw (sp.)…court reporter…
Judge Lind
…issues from last [Article 39(a)] session…26 October [2012] telephonic RCM [Rules for Court Martial] 802 held. [Lind explains what an RCM 802 conference is.] At that RCM 802…logistics due to Sandy. …scheduled 30 October to 1 November 2012… …after RCM 802…sent email [to trial and defense counsel which consisted of a synopsis of the 26 October 2012 RCM 802 conference]…invited [trial and defense counsel] to give comments [on her synopsis].
[She then reads her synopsis email of the 26 October 2012 RCM 802] …Government new case calendar. …present [at the RCM 802] Major Fein, Captain Overgaard, Captain Morrow, Mr. David Coombs [she names defense counsel Captain Tooman and Major Hurley]…(1) …Fort Meade cancelled school…[etc. This related to Hurricane Sandy]. …(2) [Next Article 39(a) session rescheduled] to 7 and 8 November 2012…at 11 am EST…witnesses are available. (3) Col. Coffman will be testifying telephonically from Afghanistan for the Article 13 motion hearing, so he [won’t need to stay for five weeks stateside, since he also testified for the Speedy Motion trial on November 8.]
Defense (Coombs)
[Defense then supplemented the Judge’s account of her email synopsis of the RCM 802 for the Court record.] …[Trial and defense counsel agreed] to work late on November 7 and 8 [to expedite issues before the Court because of the need to reschedule due to Hurricane Sandy.]
Judge Lind
Court took Judicial Notice of Hurricane Sandy…national capital region…
Government provided notice…Major Fein?
Prosecution (Fein)
On 22 October 2012, the Government provided notice to the Court and defense [regarding] DHS [Department of Homeland Security]. All information…was [consisted of] one document, approved redactions produced. [That notice is] appellate exhibit 378.
On 22 October 2012 the Government provided notice to the Court…appellate exhibit 364 [regarding Department of State discovery under MRE (Military Ruled for Evidence) 505(g)(2) review]…all approved limited disclosure would be produced to the defense, except for one that is viewable at the Department of State.
On 25 October [2012] Government provided notice that three entities: FBI, DHS, and DoS [the Government had] captured documents for inspection or production to defense.
On 26 October [2012] Government filed a 505(g)[(2)?] motion for classified…
Judge Lind
…classified? [Judge Lind asked if the Government had filed an un-redacted motion for defense to coincide with any classified MRE 505 ex parte motions the Government files with the Court for limited disclosure of classified discovery. The requirement is per her previous ruling that the Government must file un-redacted motions for defense when the Government files ex parte motions concerning review of classified information for limited discovery.]
Prosecution (Fein)
[Fein affirms that a un-redacted unclassified motion was filed for defense concurrent to the classified ex parte MRE 505.] Appellate exhibit 368 is the [Government’s] ex parte motion. Appellate exhibit 365 is the Government’s unclassified redacted [version] of the same motion.
On 6 November 2012, appellate exhibit 377, the Government provided notice on the status of the ONCIX [Office of the National Counterintelligence Executive] damage assessment based on a previous [Court] ruling [that the Government is required to do so.] The ONCIX damage assessment is finalized. The one that defense reviewed [which was considered a draft] is the same as this one [the one finalized by ONCIX]. …There are no substantive changes.
Judge Lind
…due diligence filings?
Prosecution (Fein)
…two filings… On 25 October prosecution filed a corrected filing of due diligence. Appellate exhibit 264. On 23 October 2012 Government filed a corrected copy of Government response to speedy trial. That is appellate exhibit 339.
Judge Lind
Has the Government filed anything additionally to speedy trial…? …enclosure 80?
Prosecution (Fein)
In the same corrected version…77, 78, 79 enclosures [Transcriber believes these were added or amended]…this morning provided (d) and (c). …enclosure 80 to Government’s response to speedy trial… …this morning will file another to add a line to the corrected copy.
Judge Lind
Defense, you said you were not moving to compel witnesses…?
Defense (Coombs)
Appellate exhibit 242 is defense motion to compel witnesses [for the Article 13]…and within…appellate exhibit 260 is the supplemental, and appellate exhibit 329 defense filed an addendum for additional witnesses. Based upon witnesses the Government agreed to produce, defense withdrew motion to compel witnesses.
Judge Lind
Mr. Coombs, you emailed me is that marked…?
Defense (Coombs)
No, not reduced to writing…
The US will have the following produced: Col. Daniel J. Choike [former Quantico base commander]; Commander Hann (sp.) [This individual needs to be references and verified for correct spelling and position]; Col. Robert Oltman [former Security Battalion Commander at Quantico]; Captain William Hocter [Quantico Brig Forensic Psychiatrist]; COL Ricky Malone [Quantico Brig Forensic Psychiatrist]; Captain Brian Moore [Defense Forensic Psychiatrist]; Lt. Col. Dawn Hilton [Fort Leavenworth Commandant].
Judge Lind
Defense provided Government 505(h) [requirement that the defense notify the government of any possible use of classified information]…?
Defense (Coombs)
Appellate exhibit 372…
Judge Lind
…any issues?
Prosecution (Fein)
No.
Judge Lind
…speedy trial… OCA [Original Classification Authorities] witnesses [that defense had previously requested]…[defense said] they would proceed via interrogatory [with the OCA via the Government in lieu of OCA as witnesses for the speedy trial motion. See October Article 39(a) Session].
Defense (Coombs)
…Appellate exhibit 370 is the defense interrogatories for the OCAs. Appellate exhibit 371 is the defense interrogatories for the Government counsel.
Judge Lind
…Government, any issues?
Prosecution (Fein)
No, we will meet with the defense today based off of some questions…
Judge Lind
On 31 October, the Government [issued? provided notice it had issued? on] 7 November for OCA responses to the defense interrogatories…that has been marked…
Prosecution (Fein)
…Yes. [Appellate Exhibit] 373.
Judge Lind
Defense had no objection. On 1 November 2012, appellate exhibit 374 the Court ruled on interrogatory leave from the Government. Court deferred ruling on defense motion to compel [production of OCA witnesses for the speedy trial motion]. On 31 October [2012] [Court granted Government] leave till 7 November [2012]. Defense did not oppose. Granted. So, by the end of today. Government will give me information on status of the interrogatories for the OCAs. Anything else regarding the interrogatories?
Defense (Coombs)
No.
Prosecution (Fein)
No.
Judge Lind
On 18 October [2012] the Court discussed classified exhibits not accompanying records at trial. Court ordered the Government to devise a plan [that would require] one agency to custodian…for the appellate review.
On 25 October [2012] Government requested leave until December to come up with a plan. That is appellate exhibit 359.
On 26 October [2012] Court ruled on that. Appellate exhibit 362. The Court ruled as follows…detailed plan for appellate exhibits that will not accompany the record at trial…classified appellate exhibits…for appellate review…10 December 2012. Court granted…
…Defense filed a plea and forum at the last Article 39(a) Session. They have supplemented [that filing]…
Defense (Coombs)
Appellate exhibit 342 is the plea and forum. [In that submission my client] accepted responsibility for certain charges and would plead to lesser included offenses within the charge sheet… Defense [then] revised [their submission]. [Appellate exhibit 360 was the supplement]. The Court, Government, and defense then met in an RCM [Rules for Court Martial] 802 [telephonic conference] to lay out specifications he would plead to by exceptions and substitutions.
Judge Lind
On 25 October 2012…[transcriber did not notate what this was]… Appellate exhibit 361. On 26 October 2012 Court issued a clarification on the Court’s 19 July 2012 ruling, [which was] appellate exhibit 219. The appellate exhibit for the [Court’s] clarification is 366. Defense responded to certain questions. Defense response is [appellate exhibit] 375. …Government has a time period before they respond.
Based on the submission…the [Court’s] 19 July 2012 ruling on maximum punishment for Specification 1 of Charge II, 18 USC 641, 18 USC 793(e), and 18 USC 1030(a)(1)… [the ruling] never considered [maximum punishment for] clause (1) and (2) LIO [lesser included offenses].
On 23 October defense revised their plea and forum…offers pleas based on residual elements.
…Defense emailed the Court. …19 July 2012 Court Order…misplaced…does not address [clause] (1) and (2) residual elements.
On 18 October [2012] the Court…suspense…for proper plea and maximum punishment. 5 November [2012 defense] filing. 16 November [2012] response. 23 November [2012] reply.
On 27 November 2012 to 2 December 2012 the Court will address: (1) Is the plea the proper LIO or is it an amendment? US v. Morton (2010); (2) Assuming plea is acceptable [to the] the Convening Authority what is the maximum punishment? US v. Beatty (2011)
Court has the defense filing, and the Court will address proffered pleas.
…[MRE] 505(g) classified motions…Government address substance?
Prosecution (Fein)
[Appellate exhibit] 368 is the original ex parte. [Appellate exhibit] 365 is the unclassified [motion for defense as per ruling described above.] MRE 505(g)(1) and (2)… …(g)(1) is voluntary disclosure of information…(g)(2) is authorized substitutions.
Government filed three pieces of digital media. Information contained on the media…[the motion concerns] access to the digital media…so only certain portions.
Unclassified redacted…no information…but for the four digital files from three pieces of digital media. In addition, asking Court for redactions of two files…only relevant portions…want approval from the Court.
Prosecution asks the Court to additionally for a protective order enforced only when the defense conducts its forensic review.
Judge Lind
…protective order…reviewed in the presence of security experts.
Defense (Coombs)
…hold off on Government’s request. Defense and Government are going to talk about the nature [of the request]. Once we talk to the Government about their request…
Judge Lind
Does the defense have an objection to the motion…?
Prosecution (Fein)
We have made it available for their forensic evidence [expert]…
Judge Lind
Protective order [concerns] metadata of these exhibits under the Government’s parameters…?
Defense (Coombs)
We want to understand what they are limiting and how they selected that. We don’t know. Did they receive all this other information to make that determination? So, I would like to speak to the Government counsel.
…
The second, the nature of forensic parameters allows defense to conduct review… Initial confusion…how they selected the information.
Judge Lind
Protective order going for metadata…?
Prosecution (Fein)
Both. These four filed and metadata…recover information from…they could look behind [due to the nature of forensic examination of digital material]. You can look at the substance of the two files, but not the metadata.
Judge Lind
[missed]
Prosecution (Fein)
Prosecution proposes one of the industry standards…called privileging. …but for those four files [which] would be privileged out…would not be able to view the content.
…forensic expert could look at content behind redaction… [Fein explains a that if they gave defense another version it would alter the evidence]. …Government has chosen not to alter.
Judge Lind
Defense, I understand you want to talk [to the Government counsel about this motion], but what I am looking at is looking at [is defense viewing the evidence] under the protective order…then [defense] asking for an amendment…
Defense (Coombs)
The problem…they have three files [digital media]. They pulled four files… Two [files] we can look at completely. Then they want a protective order for the other files.
Our expert doesn’t want to use the program. We need to find out… …the Government felt that the FBI file was not relevant, damage not relevant… Once they selected four pieces…they want to limit by particular program. If we talk today, we can address tomorrow.
Prosecution (Fein)
Process in unclassified… They [defense] have had these files since August. Defense has three digital media. Two files do not have redaction… Not an issue.
Two other files provided [are] redacted. Two documents. The Court has a redacted version of it. …505(g) not in response… …since Government has not applied for behind redaction. Two files, are not documents. 2 document are in redacted form.
Defense (Coombs)
…wrinkle of three digital media…
Prosecution (Fein)
…analysis of those pieces of media at issue…
Judge Lind
…you can’t tell them [defense] how [other files are] not relevant…
Prosecution (Fein)
…[Government conducted] multiple types of searches, did not find Brady.
Judge Lind
Can you tell defense what search terms you used?
Prosecution (Fein)
Don’t know [if I can answer that question in that it is classified]. Have to get back to you.
Judge Lind
…witnesses…
Prosecution (Fein)
…two other filings. 26 October 2012…next volume of speedy trial…Government is going through defense stipulated chronology by tomorrow.
Judge Lind
…tomorrow?
Prosecution (Fein)
[Appellate exhibit] 369 is the defense speedy trial chronology. On 26 October [2012 appellate exhibit] 367 is classified filing, the Government’s updated witness list no. 2…the result of defense [asking for] more specificity…additionally under protective order MRE 505(h). That is all [the] filings your Honor.
Judge Lind
Anything else…
Defense (Hurley)
Defense filed an MRE 505(h)(1) motion through the Court Security Officer [which had a deadline of 16 November].
Prosecution (Fein)
…hasn’t been marked yet.
Judge Lind
…that will be marked as classified information?
Prosecution (Fein)
Yes.
The US will call Lt. Col. Paul Almanza [the Article 32 Pretrial Investigating Officer] telephonically, ensure connection. Then [there will be a] lunch break. Then Bert Haggett (sp.) from the Department of the Army G-2.
The remainder [of the day can take up administrative issues]. [Tomorrow] the US will call Col. Coffman to take his testimony.
Judge Lind
…ten minute recess.
ALL RISE
ALL RISE
Judge Lind
Please be seated. This Article 39(a) Session is called to order…
Prosecution (Whyte)
US calls Lt. Col. Paul Almanza. [telephonically]
…there?
Lt. Col. Paul Almanza
Yes. I am.
Prosecution (Whyte)
You are on the record…
Lt. Col. Paul Almanza
Okay…
Prosecution (Whyte)
Please stand up and raise your right hand…do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
Lt. Col. Paul Almanza
I do.
Prosecution (Whyte)
You are Lt. Col. Paul Almanza?
Lt. Col. Paul Almanza
Yes.
Prosecution (Whyte)
Social Security Administration…? Currently at the office at the Social Security Administration with the door closed…? No notes…?
Lt. Col. Paul Almanza
…do not.
Prosecution (Whyte)
Military career overview…?
Lt. Col. Paul Almanza
ROTC…joined Army reserve, military intelligence officer…five years… [he recited his resume included him become a military judge shortly before being #Manning Article 32 Pretrial Investigating Officer] …May [year?] transferred back…
Prosecution (Whyte)
Active duty position…?
Lt. Col. Paul Almanza
…trial counsel…
Prosecution (Whyte)
Reserve position?
Lt. Col. Paul Almanza
Judge advocate…appellate…number of years…INSCOM [US Army Intelligence & Security Command]…SJA office joined reserves…law clerk, then 2010 reserve military judge.
Prosecution (Whyte)
…since?
Lt. Col. Paul Almanza
May 2010.
Prosecution (Whyte)
Number of court martials?
Lt. Col. Paul Almanza
6. ECE [?]. All guilty pleas. Military judges course three weeks.
Prosecution (Whyte)
Course executive duty…? [This was not clear in my notebook.]
Lt. Col. Paul Almanza
Yes.
Prosecution (Whyte)
Current?
Lt. Col. Paul Almanza
Administrative law judge [I need to verify this], Social Security, since September 24, 2012.
Prosecution (Whyte)
…where before…?
Lt. Col. Paul Almanza
Department of Justice, 10 years. Trial counsel and Deputy Chief 2007 to 2010, Chief of Staff Office of Legal Policy…, in February 2012 detailed to child exploitation in the Deputy General’s office.
Prosecution (Whyte)
You were the Article 32 Investigating Officer. Did you have a security clearance…?
Lt. Col. Paul Almanza
Had one. Read on [“Read on” means receiving clearance briefing indoctrination necessary for access to a program, network, mission, system, or operation, according to Thomas Drake.] for this case.
Prosecution (Whyte)
…submit [your Investigating Officer Report with recommendations] to the Special Convening Authority?
Lt. Col. Paul Almanza
Yes.
Prosecution (Whyte)
Where you active duty during the investigation?
Lt. Col. Paul Almanza
..on orders from time of 12 December 2011 until [missed], 3 January to 6 January on active duty status. Not on orders, active duty 9 January to 11 January 2012.
Prosecution (Whyte)
[When you were on active duty were you] still at DoJ [Department of Justice]?
Lt. Col. Paul Almanza
Correct. Deputy Chief…Child Exploitation.
Prosecution (Whyte)
[Which days did you] exclude…?
Lt. Col. Paul Almanza
Three days around Christmas. Two day weekend and Holiday. Two days around New Years. Weekend and Holiday. 8 and 9 January work days.
Prosecution (Whyte)
First executable delay?
Lt. Col. Paul Almanza
24 December to 2 January [2010]
Prosecution (Whyte)
What did you do on 23 December?
Lt. Col. Paul Almanza
…classified evidence was provided on a lap top and only on that lap top at MDW [Military District of Washington]. Chief [Ford ?] was down there, and secured on end of day in a safe at Fort McNair. Evidence all on classified laptop.
Prosecution (Whyte)
[You had two executable delays] on 27 to 30 December [2011] and 31 to 2 January [2012], a federal holiday. What were you doing on 27 to 30 December?
Lt. Col. Paul Almanza
Working at the Department of Justice.
Prosecution (Whyte)
Why was that necessary, even though you had an assistant, for you or your assistant to be working at the Department of Justice?
Lt. Col. Paul Almanza
[With] policy and legislation work there aren’t regular deadlines. …necessary for someone to be there to cover the portfolio.
Prosecution (Whyte)
Did you notify your boss that you were on active duty?
Lt. Col. Paul Almanza
Yes.
Prosecution (Whyte)
What were your work hours [at the Department of Justice] on those days?
Lt. Col. Paul Almanza
9 to 5.
Prosecution (Whyte)
How long was your commute?
Lt. Col. Paul Almanza
One hour door to door. Get home by at least 6:30 pm.
Prosecution (Whyte)
Briefly talk about the review process at Fort McNair.
Lt. Col. Paul Almanza
Evidence was contained on classified lap top. Significant amount of the evidence was classified. Organized by Government into categories. As I was working on the report, which was rather lengthy, I would review evidence, dropping a lot of footnotes.
Prosecution (Whyte)
How much evidence?
Lt. Col. Paul Almanza
…only cases as a military previously are [DCD or ECE?] cases. Evidence [in this case] was extremely voluminous.
Prosecution (Whyte)
When you reviewed [the evidence] how long did it take?
Lt. Col. Paul Almanza
Less than 8 or 9 hours.
Prosecution (Whyte)
Why did it take so long?
Lt. Col. Paul Almanza
A lot of things to go through.
Prosecution (Whyte)
On 27 to 30 December you were working at the Department of Justice. Ever review [the case or the evidence] before or after work?
Lt. Col. Paul Almanza
No. Only at MDW [Military District of Washington].
Prosecution (Whyte)
Your second executable delay was on 7 to 8 January. Did you work during those days?
Lt. Col. Paul Almanza
No. My son had a swim meet.
Lt. Col. Paul Almanza
You said that you had [presided] over 6 court martials, all guilty pleas. [How did this case compare in complexity?]
Lt. Col. Paul Almanza
[The case was] complicated. …the investigation and report.
Prosecution (Whyte)
Are you vaguely familiar with charges?
Lt. Col. Paul Almanza
Yes. I can generally recall.
Prosecution (Whyte)
[Are you familiar] with the elements of the charges?
Prosecution (Whyte)
Yes.
Prosecution (Whyte)
[Are you familiar] with the charges regarding classified information? [If you learned that the charged information was] unclassified [would it] change your report [to the Special Convening Authority]?
Lt. Col. Paul Almanza
[The classification of the information charged] had relevance.
Prosecution (Whyte)
[Concerning] relevance, defense alleges someone could have testified in lieu of a classification review…
[OBJECTION]
Judge Lind
…How relevant were they?
Prosecution (Whyte)
We will withdraw.
Defense (Coombs)
…if the question is live witnesses as opposed to OCAs…since… [missed]
Judge Lind
…Is this an expert witness?
Defense (Coombs)
…what he believes he would need?
Prosecution (Whyte)
If the classification reviews [showed that the charged info was not classified] would it have changed your report?
[OBJECTION]
Defense (Coombs)
Would he consider a live…
[OVERRULED]
Prosecution (Whyte)
…hypothetical…came to testify that the information [charged] was not classified, would it have changed your report?
Lt. Col. Paul Almanza
I believe that classification was an element. Yes [it would have changed his report].
[PROSECUTION ENDS EXAMINATION OF LT. COL. PAUL ALMANZA]
Defense (Coombs)
…executable delay in an email to Major Fein [that on] 23 December [2011] to 3 January [2012] that you did not work.
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
…prior to [sending] this email did you have a discussion with Major Fein? [not sure if this question was transcribed accurately]
Lt. Col. Paul Almanza
No.
Defense (Coombs)
…any trial counsel or Government…? [missed full question]
Lt. Col. Paul Almanza
Correct
Defense (Coombs)
…executable delay under RCM 707(c)? [missed full question]
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
…23 December [2011] to 3 January [2012] where you did not work?
Lt. Col. Paul Almanza
Defense (Coombs)
Did not reach out to defense [before drafting this executable delay]?
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
Did not consider defense’s position?
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
[You gave] no reason these were days you did not work on the case.
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
…memorandum chronology…24 to 26 December, 31 to 2 January…?
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
Federal holidays?
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
This was basis you gave?
Lt. Col. Paul Almanza
Correct.
[JUDGE LIND INTERRUPTS.]
Judge Lind
…dates again?
Lt. Col. Paul Almanza
31 December to 2 January.
Defense (Coombs)
You excluded 7 and 8 January?
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
Weekend?
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
Swim meet?
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
You had never done an excludable delay [before this case]?
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
Prior to 11 January, never sought defense input?
Lt. Col. Paul Almanza
Correct
Defense (Coombs)
…say nothing about military order?
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
Gave no basis?
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
4 January email…11 January email, you gave no reference to your civilian employer requiring you had to go to work.
Lt. Col. Paul Almanza
Oversight.
Defense (Coombs)
27 december to 3 January…[you could have told the Department of Justice] out of office, can’t come in.
Lt. Col. Paul Almanza
I could have.
Defense (Coombs)
In retrospect you should have…
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
…if you didn’t go in [to work at the Department of Justice], you would have…3 to 6 January…7 days?
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
…23 to 3 January more than 7 days. Finished your report on 29 December [2011]?
Lt. Col. Paul Almanza
I believe so.
Defense (Coombs)
Trial counsel asked you…deadline [for Investigating Officer’s Report] 16 January?
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
you turned it in on 11 January?
Lt. Col. Paul Almanza
yes.
Defense (Coombs)
So, you did not need the entire time.
Lt. Col. Paul Almanza
I did not need until 16 January.
Defense (Coombs)
23 December…no need for additional time.
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
Certain information was not relevant, you ordered…?
Lt. Col. Paul Almanza
Correct.
Defense (Coombs)
[Regarding] what you considered as the Investigating Officer… [as in what were relevant]…classification reviews?
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
…to [make sure information was charge properly for being] classified?
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
Government could have called a witness to testify [that the information was classified in lieu of having to wait for the Classification Reviews]?
Lt. Col. Paul Almanza
I would assume so.
Defense (Coombs)
If the Government didn’t have Classification Reviews and called witnesses you would have considered their testimony?
Lt. Col. Paul Almanza
Yes. [missed]
Defense (Coombs)
Review any unclassified forensics?
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
Considered classified reports?
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
Assisted you in [missed]?
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
If you had agents instead of forensics had made it more difficult?
Lt. Col. Paul Almanza
Yes. …much more difficult without forensic reports.
Defense (Coombs)
…don’t want to go forward?
Lt. Col. Paul Almanza
…if was accurate would have gone forward.
Defense (Coombs)
What date were you read on as the Investigating Officer?
Lt. Col. Paul Almanza
January of February 2010. I was a long time ago.
Defense (Coombs)
Read on as the Investigating Officer in January 2011?
Lt. Col. Paul Almanza
Maybe January 2011.
Defense (Coombs)
January 2011?
Lt. Col. Paul Almanza
Yes.
Defense (Coombs)
When were you appointed [as] the Investigating Officer?
Lt. Col. Paul Almanza
…proceeding August.
Defense (Coombs)
From August 2010 to January 2011 to be read on?
Lt. Col. Paul Almanza
I do not know the cause, the following January got read on.
Defense (Coombs)
When did you get your TS-SCI clearance?
Lt. Col. Paul Almanza
Missed. Read on very quick. Within weeks.
Defense (Coombs)
So between August 2010 and January 2011…nothing was done to get you read on.
Lt. Col. Paul Almanza
Correct
[DEFENSE ENDS CROSS EXAMINATION OF LT. COL. PAUL ALMANZA]
[GOVERNMENT RE-EXAMINATION OF LT. COL. PAUL ALMANZA]
Prosecution (Whyte)
Defense cited [your email to] Major Fein…?
Lt. Col. Paul Almanza
Yes.
Prosecution (Whyte)
That you did not work. Did you send that email to defense counsel?
Lt. Col. Paul Almanza
All parties were cc’d on the email.
Prosecution (Whyte)
Did defense object?
Lt. Col. Paul Almanza
Don’t recall.
Prosecution (Whyte)
No further questions.
[GOVERNMENT ENDS RE-EXAMINATION OF LT. COL. PAUL ALMANZA]
[DEFENSE FOLLOW UP EXAMINATION OF LT. COL. PAUL ALMANZA]
Defense (Coombs)
Yes. You responded back on the 4th…excluded any days…you indicated range but not exact day…?
Lt. Col. Paul Almanza
Sounds correct.
[JUDGE LIND EXAMINATION OF LT. COL. PAUL ALMANZA]
Judge Lind
What were the days of the hearing?
Lt. Col. Paul Almanza
…its in the chronology memo. Saturday, 15 December to Thursday, 22 December.
Judge Lind
Any plan if hearing was to go beyond…?
Lt. Col. Paul Almanza
Early on discussed potential, but after [considering his decision on witnesses felt] we could get done by 22 December.
[JUDGE LIND END EXAMINATION OF LT. COL. PAUL ALMANZA]
Judge Lind
Follow up…?
Defense (Coombs)
No.
Prosecution (Whyte)
No.
[LT. COL. PAUL ALMANZA IS DISMISSED]
Prosecution (Fein)
US recommends we take a lunch break until 14:30
[Judge Lind recesses the Court.]
ALL RISE
ALL RISE.
Judge Lind
Please be seated. This Article 39(a) Session is called to order…
Prosecution (Fein)
US calls Mr. Bert Haggett
[MR. BERT Haggett IS SWORN IN]
Prosecution (Fein)
…Department of the Army G-2?
Bert Haggett
Yes.
Prosecution (Fein)
[If any of the] answers [you give are] classified, please notify the Court.
Bert Haggett
I will.
Prosecution (Fein)
…duty position?
Bert Haggett
Information Security Policy and Army litigation support.
Prosecution (Fein)
When did you start working for the Army?
Bert Haggett
1980.
Prosecution (Fein)
…in a G-2 capacity?
Bert Haggett
1988
Prosecution (Fein)
What are the duties of a Chief of Information Security Policy…?
Bert Haggett
…promulgate information security throughout the Army.
Prosecution (Fein)
…litigation support?
Bert Haggett
Support of legal counsel.
Prosecution (Fein)
…civil and criminal?
Bert Haggett
Yes.
Prosecution (Fein)
…criminal experience?
Bert Haggett
…Army contacted by federal law enforcement when classified information is released.
Prosecution (Fein)
…civil?
Bert Haggett
FOIA [related litigation support].
Prosecution (Fein)
What is the primary information security regulation for the Army G-2?
Bert Haggett
Information [Army] Regulation [AR] 380-5
Prosecution (Fein)
…role Deputy Chief of Staff to Intelligence…?
Bert Haggett
[missed]
Prosecution (Fein)
What is classified information?
Bert Haggett
Under Executive Order 2935…the current Executive Order regulations for protecting…
[Haggett cannot remember the number of Executive Order 13526 regulating classified information for the USG.]
Prosecution (Fein)
What kinds of information?
Bert Haggett
Sources and methods. Weapons of mass destruction. Foreign affairs. [Missed. He names a few others.]
Prosecution (Fein)
Executive Order 13526 promulgated…?
Bert Haggett
…within the Army AR 380-5.
Prosecution (Fein)
[Missed]
Bert Haggett
Three levels: Confidential. Secret. Top Secret.
Prosecution (Fein)
Who makes the decision if something is classified?
Bert Haggett
Original Classification Authority [OCA].
Prosecution (Fein)
What is the OCA position or rank?
Bert Haggett
Within the Army, Major General.
Prosecution (Fein)
[Is] every two star general an OCA?
Bert Haggett
…designated by position following need.
Prosecution (Fein)
Highest level OCA position?
Bert Haggett
Secretary of the Army.
Prosecution (Fein)
A single document can have more than one OCA?
Bert Haggett
Yes.
Prosecution (Fein)
Single paragraph can have more than one OCA?
Bert Haggett
Yes.
Prosecution (Fein)
On a daily basis, how does an individual know if a document is classified?
Bert Haggett
…necessary [for the document] to be marked…marked top and bottom [missed]
Prosecution (Fein)
…holder required to assume classified?
Bert Haggett
…if so marked.
Prosecution (Fein)
Why?
Bert Haggett
…protected as such.
Prosecution (Fein)
…creator…know whether information is classified?
Bert Haggett
…if you are writing a memo in response [in the instance that the] original is marked as classified you would bring forward that classification.
Prosecution (Fein)
can you use another method?
Bert Haggett
…use a classification guide.
Prosecution (Fein)
…bring classification forward?
Bert Haggett
[He uses the example of a slide deck] …derivative classification, derived from another slide.
Prosecution (Fein)
Generic examples of the types of documents…?
Bert Haggett
Could be memo, slide deck, email…
Prosecution (Fein)
What is derivative classification and security classification guide?
Bert Haggett
…instruction by an OCA that is meant to serve as instructions.
Prosecution (Fein)
Thank you. Establishing an example for the purpose of this testimony. Assume a blue ink pen is classified. If it is, how would I know about the pen being classified or go about writing about it?
Bert Haggett
If the pen contains classified data, [it is the] decision of the OCA…put out instructions what about that pen is classified…if it is the length of pen, how long the ink would last…
Prosecution (Fein)
Thank you. You spoke of the OCA. Explain how information is originally classified?
Bert Haggett
…decision made by individual, delegated OCA. …any designation follows out from the EO [Executive Order in this case 13256].
Prosecution (Fein)
…what rules?
Bert Haggett
Basic rule is that Government has propriety of the data…what level… Must fit into a category: Weapons of mass destruction. [He lists all the categories.] …sunset on classified information…declassified at a certain time. …control. …must in order to ensure data in our control… …require trying to make sure. No control…no need to classify.
Prosecution (Fein)
[missed]
Bert Haggett
Not necessary. Generally made by OCA.
Prosecution (Fein)
…how do you determine if promulgated?
Bert Haggett
In a classification guide, and document must be marked.
Prosecution (Fein)
…classification review process. What is a classification review?
Bert Haggett
A classification review is done by OCA to see if information is really classified.
Prosecution (Fein)
…what authority?
Bert Haggett
…authority derived from the EO [Executive Order]?
Prosecution (Fein)
Does the OCA conduct entire classification review?
Bert Haggett
No, unlikely. Staff…
Prosecution (Fein)
Who assists?
Bert Haggett
Could be security staff, subject matter expert, technical data [by technical experts], counsel may also review.
Prosecution (Fein)
Can any subject matter expert make final determination?
Bert Haggett
No.
Prosecution (Fein)
Personal experience [with classification review]?
Bert Haggett
Yes.
Prosecution (Fein)
When is a classification review started?
Bert Haggett
In my experience at the request of counsel.
Prosecution (Fein)
Not routine in the Army or Government?
Bert Haggett
No.
Prosecution (Fein)
Why counsel?
Bert Haggett
Generally such requests are requests when classified information is part of a legal proceeding.
Prosecution (Fein)
…end of process what are the end products or deliverables?
Bert Haggett
…written justification from the OCA.
Prosecution (Fein)
…others?
Bert Haggett
Yes. Could be email, less formal.
Prosecution (Fein)
[missed]
Bert Haggett
[missed]
Prosecution (Fein)
…example from before, the pen, assuming classified. Start with the process. counsel comes… [what are the] steps?
Bert Haggett
Step one refer document to original classification authority responsible for the pen.
Prosecution (Fein)
How do you figure out [classification authority responsible]?
Bert Haggett
Could be letterhead. The command that issued it. …belonged to a specific agency, etc.
Prosecution (Fein)
Can anyone conduct the initial review?
Bert Haggett
No.
Prosecution (Fein)
…takes qualifications?
Bert Haggett
Takes experience knowing what to look for.
Prosecution (Fein)
… [missed]…what do you do then?
Bert Haggett
Refer it formerly to equity holder with request to do a classification review.
Prosecution (Fein)
What is referred?
Bert Haggett
In this case, taking that action, and formerly transferring to the organization responsible for the pen.
Prosecution (Fein)
Formally…[missed]?
Bert Haggett
Generally formal. EO [Executive Order] requires it.
Prosecution (Fein)
Requires what?
Bert Haggett
Review of classified information by same OCA that classified it…
Prosecution (Fein)
So, multiple steps. [Step] one, to determine equity holders, for example, of the pen. What happens next?
Bert Haggett
OCA organization would review information in question and work to identify what belonged to them.
Prosecution (Fein)
If they identify the info not belonging to them, then what happens?
Bert Haggett
…not belonging. They have good reason [to believe]… …they are responsible for subsequent referrals.
Prosecution (Fein)
So, a document with many sources could or would have to be passed forward to all OCAs?
Bert Haggett
Yes. Correct.
Prosecution (Fein)
Normal average length to complete a classification review?
Bert Haggett
not sure could say.
Prosecution (Fein)
Factors?
Bert Haggett
Complexity of information. number of OCAs involved. Availability of staff to review.
Prosecution (Fein)
…what you mentioned before. [missed]
Bert Haggett
Secondary referral will come back to you and you can re-assemble.
Prosecution (Fein)
Explain.
Bert Haggett
…if you have to do with multiple [OCAs], at that point you need to report all findings out. list ideally with paragraph (1), organization (b), paragraph (2)…
Prosecution (Fein)
How frequently are classification reviews at the Department of the Army?
Bert Haggett
Fairly rarely.
Prosecution (Fein)
Department of Defense?
Bert Haggett
Fairly rarely.
Prosecution (Fein)
[Is there a] regular or Army command dedicated to conduct classification reviews? [Transcriber is not sure if this question was transcribed accurately]
Bert Haggett
Not my experience.
Prosecution (Fein)
…no dedicated individual?
Bert Haggett
Not my experience.
Prosecution (Fein)
Where are they gonna come from?
Bert Haggett
[missed]
Prosecution (Fein)
Are classification reviews required?
Bert Haggett
Yes. [missed]
Prosecution (Fein)
Why?
Bert Haggett
Required [to determine] if information is correctly classified…to get to that point.
Prosecution (Fein)
Necessary if OCA is testifying?
Bert Haggett
Process needed no matter how reported out.
Prosecution (Fein)
Can anyone other than OCA say if it is classified?
Bert Haggett
No.
Prosecution (Fein)
Why across Government…?
Bert Haggett
…direction of president’s EO [Executive Order]
Prosecution (Fein)
Are you familiar with the case [meaning this case]?
Bert Haggett
Yes. Asked to provide advice for grabbing documents from different OCAs.
Prosecution (Fein)
…types that make up classified information [in this case]?
Bert Haggett
Intelligence. Military Plan Operations.
Prosecution (Fein)
Form of classified information [in this case]?
Bert Haggett
Documents, slide decks, various forms of information…
Prosecution (Fein)
…types [of classified information in this case] for law enforcement.
Bert Haggett
There were I believe intelligence within them.
Prosecution (Fein)
…info you were exposed to more complicated than typical?
Bert Haggett
yes, because of the volume, and also some of the information multipage, multisubject, multiple OCA…than a one page document.
Prosecution (Fein)
Why does increased volume make a difference?
Bert Haggett
Staff to do initial classification reviews is a finite number. OCAs have their own process, but if dealing with people who specialize in security or technical area, only so many people you can call on.
Prosecution (Fein)
So substance of slide deck…referrals…?
Bert Haggett
Different organizations have to do the review.
Prosecution (Fein)
you looked at many documents within the Department of the Army?
Bert Haggett
Yes.
Prosecution (Fein)
…outside the Department of the Army?
Bert Haggett
Yes.
Prosecution (Fein)
…outside the Department of Defense?
Bert Haggett
Correct.
Prosecution (Fein)
…different
Bert Haggett
Prosecution (Fein)
[Would the classification reviews] requests [in this case] be different [in terms of the time it would take]?
Bert Haggett
I believe it would take more time because more pages.
Prosecution (Fein)
Are you specifically familiar with the unclassified CID case file [in this case]?
Bert Haggett
Yes.
Prosecution (Fein)
[Can you explain] examples of the types of documents [in that case file]?
Bert Haggett
Sworn statements, exhibits, other investigation [files?],. I was asked to screen to render [operation?] in accurately described as unclassified. [He is saying that he conducted a disclosure classification review to determine if the investigative file was in fact unclassified, meaning did not contain any classified information. ]
Prosecution (Fein)
How many documents were contained in the CID file, more than 500?
Bert Haggett
Yes.
Prosecution (Fein)
More than 900?
Bert Haggett
Yes, I believe so.
Prosecution (Fein)
Why [did you review the CID file]?
Bert Haggett
To ensure document didn’t contain classified information.
Prosecution (Fein)
…but CID kept [and the file was marked] the file was unclassified [so why did you need to review it]?
Bert Haggett
…double check.
Prosecution (Fein)
Did you identify classified information in the CID file?
Bert Haggett
Yes, I did. …was sub referred to [appropriate] organization.
Prosecution (Fein)
Who did you suggest that to?
Bert Haggett
To counsel.
Prosecution (Fein)
Any familiarity with CIPA [and MRE] 505…?
Bert Haggett
Yes. …on several occasions employed.
Prosecution (Fein)
What are substitutions?
Bert Haggett
Substitutions are entered in place of classified information.
Prosecution (Fein)
What are the steps for substitutions?
Bert Haggett
…in general determine what is needed to be substituted, identify what is sensitive…
Prosecution (Fein)
Are substitutions or [?] produced with Classification Reviews?
Bert Haggett
No. …while point is to come up with unclassified substitutions, [to do that one] needs to determine what is classified.
Prosecution (Fein)
So, just redacting doesn’t speed up…?
Bert Haggett
No.
Prosecution (Fein)
…security clearances?
Bert Haggett
AR 380-67 promulgates policy for security clearances for different [courses?].
Prosecution (Fein)
Who is authorized to grant security clearances?
Bert Haggett
…approving OCA.
Prosecution (Fein)
380-67…who in the Army [grants security clearances]?
Bert Haggett
The G-2 in the Army.
Prosecution (Fein)
So, Army G-2…to defense counsel, does that mean any specific [request can be grant]?
Bert Haggett
…approval of the OCA.
Prosecution (Fein)
…apply to documents [in this case]?
Bert Haggett
Yes.
[PROSECUTION ENDS EXAMINATION OF BERT HAGGETT]
[DEFENSE CROSS EXAMINATION OF BERT HAGGETT]
Defense (Hurley)
[You said that you were responsible for] referring the documents in part [in this case to appropriate OCAs for classification reviews]?
Bert Haggett
Yes.
Defense (Hurley)
You reviewed?
Bert Haggett
Yes.
Defense (Hurley)
[missed]
Bert Haggett
[missed]
Defense (Hurley)
…signed referral yourself?
Bert Haggett
Don’t recall.
Defense (Hurley)
…normally?
Bert Haggett
…signed by G-2?
Defense (Hurley)
…suspense 2024 not included in referral?
Bert Haggett
…more of an issue, case was of obvious importance, at the same time, counsel was also in touch with staff offices.
Defense (Hurley)
…so different lines of communication [?] security person?
Bert Haggett
Yes.
Defense (Hurley)
…and counsel talking to others?
Bert Haggett
Yes
Defense (Hurley)
…any instructions in referral?
Bert Haggett
…request was for a classification review?
Defense (Hurley)
…no deadline established?
Bert Haggett
No.
Defense (Hurley)
Generally speaking deadlines are included?
Bert Haggett
In my experience, no. Something communicated directly to the command [responsible for the classification review]. Understanding…[missed]
Defense (Hurley)
..no requirement in regulations about an accused?
Bert Haggett
…was in my communications.
Defense (Hurley)
Regarding OCA, ad hoc with staff already assigned [including] security experts [technical experts, etc.]?
Bert Haggett
Yes.
Defense (Hurley)
…can take as long as they want?
Bert Haggett
No hard deadline, no ambiguity as to do this properly, efficiently…
Defense (Hurley)
Would it be reasonable that a classification review take four months…?
Bert Haggett
…single doc..[missed]
Defense (Hurley)
…eight months?
Bert Haggett
…would not be unreasonable.
Defense (Hurley)
One year…?
Bert Haggett
…a little too long.
Defense (Hurley)
Informally to long for a single referral?
Bert Haggett
Yes.
Defense (Hurley)
…more complicated?
Bert Haggett
Depends on the information. Hard to determine…exceptionally complicated, may not be.
Defense (Hurley)
Two years to long?
Bert Haggett
Perhaps.
Defense (Hurley)
…multiple referrals?
Bert Haggett
If you are talking about one document with two or three classification authorities,should be done in that length of time.
Defense (Hurley)
You were doing classification reviews with Department of the Army, Department of Defense, and other federal agencies, they could be given [suspense dates] when should be done?
Bert Haggett
Yes. I suppose. My function, by and large, is to get the review accomplished.
Defense (Hurley)
Department of the Army is in the business of giving orders and having them fulfilled…?
Bert Haggett
Yes. Generally.
Defense (Hurley)
[Could the equity holders hire more staff to complete the classification reviews more quickly]?
Bert Haggett
…may not expedite. [Individuals] have to be familiar with the information.
Defense (Hurley)
Those people are available.
Bert Haggett
No. Not in my experience. I am uncomfortable with [the term] reasonable. …it is the process to be carried out as required under the EO, and there is no [variation?]. Sometimes that takes time. Sometimes maddeningly long. Requires a specific process.
Defense (Hurley)
Skipping to federal end, if you see a document is classified; and the review is not complete, could you not do substitutions or interim process?
Bert Haggett
That would give you a fasle positive. If the requirement is to deal with classification, you have to deal with that. Is the information classified or not? More than looking at the markings on the documents or unclassified substitutions. …three paragraphs that are marked classified. What do you substitute paragraph to paragraph? …no real determination, only real alternative [missed] and to try to change that.
Defense (Hurley)
…but possible to look at review and produce a [missed]?
Bert Haggett
Yes. Physically possible.
Defense (Hurley)
How long did it take you to review 900 document review?
Bert Haggett
Four days.
Defense (Hurley)
…and after four days, you sent to equity holders?
Bert Haggett
Yes.
Defense (Hurley)
Do these equity holders have staff?
Bert Haggett
From a policy perspective, yes.
Defense (Hurley)
You said you deal with civil litigation?
Bert Haggett
Once in a while. FOIA litigation. If the FOIA litigation deals with classified information.
Defense (Hurley)
You said you worked in federal criminal litigation, ever in a court martial?
Bert Haggett
No.
Defense (Hurley)
…one with an accused in pretrial-confinement?
Bert Haggett
No.
[DEFENSE ENDS CROSS EXAMINATION OF BERT HAGGETT]
[COURT EXAMINATION OF BERT HAGGETT]
Judge Lind
Court has some questions.
Judge Lind
How many OCAs are there?
Bert Haggett
Through out the USG, 2000.
Judge Lind
Within the Department of Defense?
Bert Haggett
Don’t know.
Judge Lind
…Army?
Bert Haggett
176
Judge Lind
…in this case 176 OCA involved in this case?
Bert Haggett
Estimate two or three possible referrals came back.
Judge Lind
When G-2 refers out to OCA in the Army to arrange for classification review, can [you] set suspense?
Bert Haggett
Practically we could, when I do one. Never felt need to go and ask for one. Fairly rarely one I did. With 2 or three classification authorities took additional time yo do the review in question.
Judge Lind
How long in that case?
Bert Haggett
Four months.
Judge Lind
When involved in FOIA, did the Court put suspense dates [on the classification reviews]?
Bert Haggett
[Maybe] down the line…only suspense dates are dates established by Court, when production notices needed…dates applied counsel would need to renegotiate them.
Judge Lind
In classification reviews, if you have something marked, OCA already determined, why another review?
Bert Haggett
Assuming marked appropriately. Document could be two years old. …that requires formerly…is the information properly classified. The main issue…classification does time out, [could be] overcome by events. …get baseline is it classified.
Judge Lind
How many OCA’s are in the Department of State?
Bert Haggett
Department of State has a very large number. Several years ago [there was policy or legislation] to reduce OCAs and if I remember brought number down by over 2000.
Judge Lind
They have more than?
Bert Haggett
2000 entire..
Judge Lind
[missed]
Bert Haggett
[Department of State] has the lion share of what is left.
Judge Lind
Have any idea how many OCA’s at the Department of State were involved in this case?
Bert Haggett
No.
Judge Lind
…OCA training?
Bert Haggett
…mandatory. Baseline training that was be met in order to classify. Runs through regulations.
Judge Lind
Some kind of formal training…?
Bert Haggett
Different. [Self-service?] Online Course. Desk.
Judge Lind
…required for completion?
Bert Haggett
Yes.
Judge Lind
…staff?
Bert Haggett
Require staff to train in derivative classification. Many agencies develop their own.
Judge Lind
Did you do all the referrals in this case?
Bert Haggett
As I recall, I identified the organizations needed to be involved in the data. Don’t recall if I packaged [all] the data up.
Judge Lind
Who did?
Bert Haggett
Counsel.
Judge Lind
So, after identifying, you looked at a, b, c, d, e, and relayed that to trial counsel?
Bert Haggett
Counsel and judge advocate…
Judge Lind
…they take over?
Bert Haggett
…not done…that portion…subsequently talked to OCAs, processed questions [missed].
Judge Lind
Who was responsible for tracking referral for making sure they were complete?
Bert Haggett
Not sure of the answer.
Judge Lind
Do you know how long it took?
Bert Haggett
Don’t recall.
Judge Lind
When defense counsel asked you about one year versus two years for a single document example, ever work on a case of this volume in FOIA litigation?
Bert Haggett
No.
Judge Lind
Was this the the most complex case you have been involved in compared to the next?
Bert Haggett
[This case is] probably well beyond. [Transcriber believes he recounted that when he came into his position,] one of the first things I did was take over FOIA litigation…in this case by way of volume…[other case was] paper copy that had a number of different OCAs, number of different executive [brand?] agencies. This was a different case by sheer volume…[missed] operations, intelligence, counter IED. Bulk impressed me to make sure it gets done properly.
Judge Lind
These FOIA cases, how long can they take?
Bert Haggett
Over a year.
Judge Lind
You testified that you reviewed unclassified CID file. In beginning, what was the criterion. [Case file] was owned and closely held. If the case file is unclassified, how do you know already approved…?
Bert Haggett
You don’t. In this case law enforcement asked to look through to make sure it was not an issue. When I have been asked in the past [to review law enforcement files for classified information] I know from experience, in sworn statements to pay extra attention. Very often if law enforcement is speaking with an individual sometimes information gets into those statements that shouldn’t. My experience is what I…should be properly marked. This is one that got missed. Had to make sure properly marked and protected.
Judge Lind
What is the process that occurs under CIPA or MRE 505 for disclosure or production with substitutions?
Bert Haggett
My experience once that is by and large the greatest is the Noriega trial…transcript of a closed session…once we reviewed if they had classified data…look at information…look at unclassified substitutions that would communicate what was being said.
Judge Lind
We? Who else?
Bert Haggett
I was sitting with individuals from the Department of Justice. I was there to represent the Army. Others were around the table. [Our job] was to develop something both unclassified that stayed online with the sketch.
Judge Lind
Who approves? Any approval from equity holder?
Bert Haggett
No.
Judge Lind
What approvals are needed for substitutions?
Bert Haggett
By way of approval needed for function…needed to perform. …then say, “Go forth.” In many cases we were able to develop unclassified [substitutions]. They were watered down…have to careful where individual names are redacted, if those were a part…[missed]
Judge Lind
…earlier testimony?
Bert Haggett
[Missed]…going to need access to any intelligence required when accessed by someone other than that has been pre-approved holding FBI, and that information was pertinent before…would get information and go back to the FBI…here are the documents that need to be transmitted to counsel asking permission.
Judge Lind
Would it require the OCA approval?
Bert Haggett
Yes.
Judge Lind
Protective orders?
Bert Haggett
By and large, understood and stated data will be used with security clearances and reviewed in a SCIF.
Judge Lind
…time period by regulation?
Bert Haggett
No. Handled in my experience in the different channels.
Judge Lind
In your involvement…who needs to be contacted?
Bert Haggett
In approval stage…[missed] here are these organizations.
Judge Lind
Then after that who takes it?
Bert Haggett
Litigation counsel communicated with the counterpart at the agency for example with FBI [general?] counsel.
Judge Lind
If someone is exposed to classified information [that shouldn’t be classified] what are their avenues of [redress]?
Bert Haggett
…[process described] within the EO…challenge to be made outlines process that would occur.
Judge Lind
Any involvement in Army CID forensics…? …November final forensic reports. 20 classified forensic reports from CID? …any involvement
Bert Haggett
No. Not that I recall.
[COURT ENDS EXAMINATION OF BERT HAGGETT]
[RECESS]
ALL RISE
Judge Lind
Please be seated. This Article 39(a) Session is called to order…
[PROSECUTION EXAMINATION OF BERT HAGGETT]
Prosecution (Fein)
…referral by agency to the equity holder, explain the requirements described… Who or what entities…[missed]?
Bert Haggett
…somewhere in the office of Staff Judge Advocate or legal counsel.
Prosecution (Fein)
Who were the requestors?
Bert Haggett
Judge Advocate General Office.
Prosecution (Fein)
Required to initiate referral?
Bert Haggett
Don’t know. Yes. Would be formally transferred for classification review.
Prosecution (Fein)
[Missed] best of your General Counsel US Army classification review?
Bert Haggett
No.
Prosecution (Fein)
You are simply a consultant?
Bert Haggett
Yes.
[COURT INTERRUPTS]
Judge Lind
Required or wasn’t?
Bert Haggett
In this case required.
Prosecution (Fein)
Who requested that?
Bert Haggett
Came from Judge Advocate General’s Office.
Prosecution (Fein)
You initially testified that law enforcement review your role?
Bert Haggett
I will take the request and refer it to the proper OCA.
Prosecution (Fein)
You referred under EO, and requested to do a classification review?
Bert Haggett
Yes.
Prosecution (Fein)
If requesting as a consultant, what role [did you play]? Referral or advice?
Bert Haggett
Provided advice to Staff Judge Advocate Office, if I remember correctly, HQDA Op. JAG…
Prosecution (Fein)
Did you offer advice to trial counsel in this case?
Bert Haggett
No.
Prosecution (Fein)
Are you aware if prosecution or a proxy at Op. JAG [?] substitution request?
Bert Haggett
I believe they did.
Prosecution (Fein)
Familiar with OCA?
Bert Haggett
Yes.
Prosecution (Fein)
Which one within DoD?
Bert Haggett
CENTCOM, SOUTHCOM, GTMO…
Prosecution (Fein)
INSCOM?
Bert Haggett
Yes.
Prosecution (Fein)
OCA outside?
Bert Haggett
Yes.
Prosecution (Fein)
Different agencies in executive departments?
Bert Haggett
Yes.
Prosecution (Fein)
Any referrals for charged information in this case?
Bert Haggett
No.
Prosecution (Fein)
No role in that process.
Bert Haggett
[Missed.]
Prosecution (Fein)
CENTCOM, SOUTHCOM, INSCOM
Bert Haggett
Referral by someone…to the best of my knowledge who should receive those…
Prosecution (Fein)
Your Honor. Would like to pull [appellate exhibit] 339, enclosure no. 2…defense motion…different requirements for classification reviews.
[MAJOR HURLEY ASKS TO CHECK THE DOCUMENT THAT FEIN PULLS AND PROVIDES FOR WITNESS]
Prosecution (Fein)
Mr. Haggett, privy to different regulations with Op. JAG…? [not sure if I transcribed accurately]
Bert Haggett
I may have…
Prosecution (Fein)
Would anything help you remember…? Handing you enclosure… Look over.
[MAJOR FEIN HANDS BERT Haggett APPELLATE EXHIBIT 339 ENCLOSURE 20]
Bert Haggett
I recall.
Prosecution (Fein)
We were talking about the different between referral and review? Who requested classification reviews in this case?
Bert Haggett
[missed]
Prosecution (Fein)
…which OCAs?
Bert Haggett
CENTCOM, GTMO, SOUTHCOM
Prosecution (Fein)
…those entities did they receive “referrals” or “requests”…?
Bert Haggett
I am having an issue [with the question the terms are] interchangeable to me. Frankly don’t recall events.
Prosecution (Fein)
Explain diference in terms, when you speak of referrals. Referral is formal; request [means] to do a review from an agency…or agency to agency…
Prosecution (Fein)
[When you] do a review then that OCA if their equity is involved…
Bert Haggett
…then return to appropriate classification authority…
Prosecution (Fein)
Going back to litigation support. Law enforcement is a referral or request?
Bert Haggett
[Missed. The semantic distinction by the prosecution was not corroborated in a heartfelt manner by Haggett. He explains that he uses the terms interchangeably. He concedes by going along with the prosecution on their distinction in the terms.]
Prosecution (Fein)
…referrals to an agency…?
Bert Haggett
Yes.
Prosecution (Fein)
…as far as referral or request, didn’t do either on this case?
Bert Haggett
No.
Prosecution (Fein)
[missed]
Bert Haggett
My experience more efficient to involve appropriate counsel…get proper attention and focus…getting [?] of legal counsel; SJA [Staff Judge Advocate] or command counsel.
Prosecution (Fein)
…true outside?
Bert Haggett
Yes.
Prosecution (Fein)
…litigation counsel?
Bert Haggett
…happen to be that attorney working on that litigation, or referring to agency not expecting it…counterpart at that other agency…clarification
Prosecution (Fein)
[missed]
Bert Haggett
[missed]
Prosecution (Fein)
[missed]
Bert Haggett
[missed]
Prosecution (Fein)
…more efficient?
Bert Haggett
[Depends] based that on FOIA. Similar actions normally go into pipeline. Born out by legal requirements, tends to get better reaction if all appropriate counsel are involved.
Prosecution (Fein)
Suspense dates. Suspense dates on any…?
Bert Haggett
[missed]
Prosecution (Fein)
How many OCA’s involved in this case…?
Bert Haggett
Two or three.
Prosecution (Fein)
Main OCAs were CENTCOM and SOUTHCOM. HQDA have tasking authority for suspense [dates]?
Bert Haggett
No.
Prosecution (Fein)
Department of Defense have tasking authority for suspense [dates] to other agencies?
Bert Haggett
No.
Prosecution (Fein)
…trial counsel?
Bert Haggett
Yes.
Prosecution (Fein)
Did [requests] from trial counsel have suspense dates?
Bert Haggett
There was a request to have them done by date.
[PROSECUTION ENDS RE-EXAMINATION OF BERT HAGGETT]
[DEFENSE CROSS EXAMINES BERT Haggett AGAIN]
Defense (Hurley)
When were you first contacted for United States v. Pfc. Manning?
Bert Haggett
Don’t recall.
Defense (Hurley)
…request with prosecution what of [missed]?
Bert Haggett
No. Front a standpoint of [?] the WikiLeaks issue occurred, I lived and breathed it for a very long time. Reissued policy.
Defense (Hurley)
When do you recall having “it” happen?
Bert Haggett
Do not recall.
Defense (Hurley)
Would it surprise you [the first request] was in 18 March 2011?
Bert Haggett
No.
Defense (Hurley)
June 2010…none months later…
Bert Haggett
[missed.]
Defense (Hurley)
Some discovery required referrals or requests, what have you, you don’t know why it takes as long as it takes?
Bert Haggett
No.
Defense (Hurley)
Don’t know how many people working?
Bert Haggett
No.
Defense (Hurley)
No idea as to inattention?
Bert Haggett
Defense (Hurley)
…malfunctioning computer disk?
Bert Haggett
Correct.
Defense (Hurley)
…significant groups involved…?
Bert Haggett
Correct
Defense (Hurley)
Operational Information. Intelligence Information… June 2010 what does an OCA do when information has perhaps been compromised?
Bert Haggett
Several forms. Depends on the organization.
Defense (Hurley)
[missed]
Bert Haggett
AR 380-5 regulates that if there is a discovered leak that an inquiry is done. In this particular case, I don’t know if OCA did preliminary inquiry. OCA involved may have been focused on what happened with them if anything needed to be mitigated.
Defense (Hurley)
How do you determine duration of classified information?
Bert Haggett
In EO…baseline sunset, general guidelines on how to apply.
Defense (Hurley)
[missed]
Bert Haggett
[missed]
Defense (Hurley)
Classified information must be marked with a [sunset date]?
Bert Haggett
Yes. When a classification authority is doing a review [at five or ten years] determined SECRET…[then when it no longer needs it is] stamped and unclassified.
Defense (Hurley)
Yo mentioned before that you were involved in a FOIA litigation case that was “4 inches thick”. That case was in 1988 before the computer revolution? You probably didn’t have a computer…?
Bert Haggett
[Haggett says that he had a computer. Defense or Haggett said “most people at the time did not have computers.”]
Defense (Hurley)
None of your FOIA cases involved an accused in pretrial confinement?
Bert Haggett
Yes [as in they did not involve an an accused in pretrial confinement.]
Defense (Hurley)
What is the entity that the OCAs are responsible to?
Bert Haggett
Joint Staff Department of Defense.
Defense (Hurley)
…executive…everyone has a boss.
Defense (Hurley)
…purposed of the OCA review…?
Bert Haggett
…[to determine] if currently classified.
Defense (Hurley)
…official process [regarding information] that has been disclosed…[inquiry concerns if the information] was classified at the time of disclosure?
Bert Haggett
…can’t be sure or you can ask for determination was document originally classified correctly.
Defense (Hurley)
[missed]
Bert Haggett
…whether or not classification properly go back to origination and creation and current…
Defense (Hurley)
You can determine if classified at a particular period…?
Bert Haggett
…was it classified at time of release.
Defense (Hurley)
…no official requirement?
Bert Haggett
Policy outlines that [classified] information that makes its way into the public domain does not change classification. If [there is an] unauthorized disclosure there is a process, a preliminary inquiry. Should be conducted to determine what happened. In both the Army and the Department of Defense a preliminary inquiry is intended to deal with a low level incident or infraction…explicit in this case…others were already investigating, no need to do a preliminary inquiry.
Defense (Hurley)
…all that is guess work?
Bert Haggett
No, because I was aware at the time, all OCAs were aware that the unauthorized disclosure is being investigated.
Defense (Hurley)
Thank you.
[DEFENSE ENDS CROSS EXAMINATION OF BERT HAGGETT]
[COURT EXAMINATION OF BERT HAGGETT]
Judge Lind
Whether classified at disclosure…record made at the time [of disclosure the information is] classified?
Bert Haggett
Not [always?]
Judge Lind
Describe the process.
Bert Haggett
If I am working from a classification guide in 1990 that a document needs to be classified. I will follow the guide.
Judge Lind
You? As in OCA?
Bert Haggett
I am using.
Judge Lind
Anyone with a clearance can classify information?
Bert Haggett
Yes.
Judge Lind
Assume someone with a clearance classifies anything they see?
Bert Haggett
There are prohibitions when [classified information should be classified]…not working from this would not be applied…if the question asked is information currently and properly classified in real time, was classification reasonably classified at that creation and now.
Judge Lind
When the OCA originally classifies information is there a record?
Bert Haggett
record woud be classification guide itself. [Gives an example of] Night vision…certain information dealing with the devise needs to be classified. Only that which is classified is marked…[rest] is unclassified. That would be the best record… …OCA determined that some information should be classified.
Judge Lind
…the classification review…necessary to see if derivative classification? Would you need to determine if original classification is classified? Wouldn’t that be enough [in terms of this case?]
Bert Haggett
Classified information one year later…to confirm that…that reverse process…did I apply that classification process properly…confirmed by OCA.
Judge Lind
…vast volume?
Bert Haggett
…derivatively classified. It would surprise me if much of it had not been derivatively classified.
Judge Lind
…unauthorized [missed]…classification review part of that?
Bert Haggett
…can be.
Judge Lind
Have to be?
Bert Haggett
No. Inquiry can be as simple as [missed].
Judge Lind
Difference between referral and request?
Bert Haggett
I use interchangeably.
Judge Lind
…is there a distinction?
Bert Haggett
…distinction would be within EO [Executive Order]. Term referral use in order to communicate with an OCA, whose classified data…needs to make judgement…[gives an example] I need to speak to J2 [J2 Joint Staff Intelligence] of CENTCOM.
Judge Lind
Formal?
Bert Haggett
Simple request, that whoever…working [can] action.
Judge Lind
[missed]
Bert Haggett
[missed]
[COURT ENDS EXAMINATION OF BERT HAGGETT]
[DEFENSE EXAMINATION OF BERT HAGGETT]
Defense (Hurley)
..actual unauthorized [disclosure] would not require…?
Bert Haggett
It would, but preliminary inquiry would apply to a security infraction.
[DEFENSE ENDS EXAMINATION OF BERT HAGGETT]
[COURT EXAMINATION OF BERT HAGGETT]
Judge Lind
After consulting CENTCOM, SOUTHCOM, any other [OCAs involved], did you have any other involvement at all in regards to classification reviews or approvals
Bert Haggett
Latter. No. Former. Some contact during the review process.
Judge Lind
…detail?
Bert Haggett
…what was needed…what I recall…those who were working at CENTCOM performing proper process…if they had process questions…made aware…
Judge Lind
Example?
Bert Haggett
…may come and ask, we have had it reviewed by security experts and subject matter experts, does anyone else have to see it? [Haggett gives an example that the information may be recommended that a mechanical expert look at it…]
Judge Lind
Did you have frequent or sporadic contact?
Bert Haggett
Sporadic.
[COURT ENDS EXAMINATION OF BERT HAGGETT]
[DEFENSE LEAD CIVILIAN COUNSEL EXAMINATION OF BERT HAGGETT]
Defense (Coombs)
you said that most of the information in the case was derivative [classification]?
Bert Haggett
Correct.
Defense (Coombs)
Are you familiar with Department of Defense SigActs?
Bert Haggett
…from CENTCOM, yes.
Defense (Coombs)
[missed]
Bert Haggett
[missed]
Defense (Coombs)
…familiar with how it is created? Unit then report, and then formerly up chain, then CIDNE?
Bert Haggett
Yes.
Defense (Coombs)
No. Derivative with that process.
Bert Haggett
CENTCOM classification guide, if I recall. SigActs were to be classified at a specific level for a specific time. That is what I mean by derivative. As long as his…
Defense (Coombs)
CENTCOM guide…all SECRET…that is what it says?
Bert Haggett
Yes.
Defense (Coombs)
Familiar with detainee profiles…?
Bert Haggett
Yes.
Defense (Coombs)
Familiar with the process created [for detainee profiles]?
Bert Haggett
Vaguely.
Defense (Coombs)
When you say derivatively [classified] from the classification guide, deriving classification from the guide…creator of the document…that classification is SECRET? Then other bits, PowerPoint or video involvement…?
Bert Haggett
Yes.
Defense (Coombs)
That stuff would be typically derivative…?
Bert Haggett
…Same as slide deck, IEDs, could be a number of classification guides…
Defense (Coombs)
…if I was using a slide deck on IEDs [Coombs is basically asking for confirmation from Haggett previous testimony that within that deck one slide has] blocks of information…discrete blocks of information…?
Bert Haggett
Yes. I believe.
Defense (Coombs)
…[Department of Defense has a ] few hundred OCAs, most are within the Department of State?
Bert Haggett
Yes.
Defense (Coombs)
Department of Defense documents [in this case] vast majority are SigActs…take out SigActs…detainee…? Lion share are SigActs?
Bert Haggett
Under your presentation yes, not my experience.
Defense (Coombs)
…detainee assessment?
Bert Haggett
IED’s, intelligence reports…may not drive what is…
Defense (Coombs)
You would not say or would [vast majority was] SigActs…?
Bert Haggett
Can’t say that. Don’t remember it being SigActs… [missed] …I remember it being significant amount of data…
[DEFENSE LEAD CIVILIAN COUNSEL ENDS EXAMINATION OF BERT HAGGETT]
[COURT EXAMINATION OF BERT HAGGAT]
Judge Lind
…SigActs you have blocks of similar data…how does that impact classification?
Bert Haggett
SigActs or SitReps [situation reports] if it is CENTCOM, there are classification guidelines dealing with SigActs or SitReps…duration was short…there was additional information if it’s IED’s…may have been what the units observed…if it had information dealing with prisoner…you can have a routine document that could have been…or “point X IED placement we took 5 people into custody” consulted with classification review etc…
Judge Lind
What is the end product?
Bert Haggett
…determination as to what is the current state of that information confirmed as classified…half of it is classified or any combination therein.
Judge Lind
Typical length of a classification review?
Bert Haggett
One or two pages for affidavit, depends on detail…
Judge Lind
Does the length of report correlate to the complexity of the review?
Bert Haggett
There could be…maybe no. Of the different documents responding out on may or may not be. Page count may not be necessary. depends on how long the process took.
[COURT ENDS EXAMINATION OF BERT HAGGETT]
[DEFENSE LEAD CIVILIAN COUNSEL EXAMINATION OF BERT HAGGETT]
Defense (Coombs)
You said SigActs had multiple layers for classification under guide?
Bert Haggett
Yes. SitReps had short duration, fairly vanilla. I have to leave it at SitReps, that is how I remember it.
Defense (Coombs)
If you were dealing with blocks of information if classified…could still cover all that information…if all information is properly classified and still properly classified? [context of the question is why it took so long for classification reviews in terms of the Article 32. One of the reasons given by Government for holding up the Article 32 was the need to finish the classification reviews. Coombs asks if there was a classification guide…?]
Bert Haggett
No.
Defense (Coombs)
Do you know if SigActs have a duration…?
Bert Haggett
SigActs should be classified by policy. Guide may say 10 years…at review at five year mark…says it can be declassified at that point. That OCA can override it…that would be within their purview.
Defense (Coombs)
If you had SigAct in 2010 within months…CIDNE, five years, SECRET, you say would have to do entire classification review?
Bert Haggett
You could certainly look at guide…the point of the review in front of the… [missed]
Defense (Coombs)
So if I had a CIDNE…and tomorrow gets released…?
Bert Haggett
Of course if there is an unauthorized disclosure within 24 hours, however getting down to the ground truth, my way of looking at it, I want to know appropriate person making proper determination doesn’t always line up…mandatory to do the whole process [missed].
Defense (Coombs)
In my hypothetical, following day I charge it…why wait four months…?
Bert Haggett
[missed]
[DEFENSE LEAD CIVILIAN COUNSEL ENDS EXAMINATION OF BERT HAGGETT]
[PROSECUTION EXAMINATION OF BERT HAGGAT]
Prosecution (Fein)
…[example given of] one SigAct released…all SigActs classified at…likely was classified on whole document..?
Bert Haggett
…to ensure that all classified information is being dealt with.
Prosecution (Fein)
What do you mean?
Bert Haggett
…real time…to confirm that the information is properly classified.
Prosecution (Fein)
SigAct with multiple layers, there could be other information?
Bert Haggett
…could be SigAct with IED information.
Prosecution (Fein)
…all parameters, why still do a classification review?
Bert Haggett
That is the process required for classification reviews if you are going to take administrative action…and confirm it is classified. If [information about] IEDs is contained, TTP [Tactics Techniques Procedures], CENTCOM [?], JIEDDO [Joint Improvised Explosive Device Defeat Organization]…
Prosecution (Fein)
JIEDDO classification higher than CENTCOM..?
Bert Haggett
Not likely…[missed]
Prosecution (Fein)
Complete document has to be reviewed?
Bert Haggett
Process is set up so we don’t assume classification…out of the workaday world, confirm batch of information classified…approved for litigation.
Prosecution (Fein)
For litigation?
Bert Haggett
Correct.
[Missed two remaining questions from prosecution, because Haggett was whispering.]
[PROSECUTION ENDS EXAMINATION OF BERT HAGGETT]
[COURT EXAMINATION OF BERT HAGGETT]
Judge Lind
…assume something put into by a platoon sergeant…a SitRep…disclosed 1 February, on 1 March not really a SitRep, find out it is not classified, has it ever been classified?
Bert Haggett
using your analogy, it never would have been classified.
Judge Lind
Where…?
Bert Haggett
EO [Executive Order] and Department of Defense and Army policy, guides are suppose to be specific enough to specify enough so when applied. Classification review catches…[missed].
[COURT ENDS EXAMINATION OF BERT HAGGETT]
[DEFENSE LEAD CIVILIAN COUNSEL ENDS EXAMINATION OF BERT HAGGETT]
Defense (Coombs)
How often do you look at if something should be classified?
Bert Haggett
Rarely.
Defense (Coombs)
[Missed]
Bert Haggett
Yes. Occasionally something marked as classified shouldn’t have been.
Defense (Coombs)
[Are you familiar] with over classification?
Bert Haggett
Yes.
[COURT INTERRUPTS]
Judge Lind
What?
[DEFENSE RESUMES]
Defense (Coombs)
Deal with over classification? [Coombs mentions Over Classification Act. Transcriber assumes this is the October 17 2010 H.R. 553, The Reducing Over-Classification Act]
Bert Haggett
I think if you read the Act [the focus is on information sharing]. …NOFORN originator control…must focus on DHS and making sure information shared within the them…IAG [Interagency Agreement] within the federal government.
[PROSECUTION END EXAMINATION OF BERT HAGGETT]
[END OF DAY]