Transcript | US v Pfc. Manning, Appellate Exhibit 128, Court Ruling on Defense Motion Requiring Govt File Non Ex Parte Motions for its Motions to Conduct 505(g)(2) Reviews and Ruling on Government Motion for 505(g)(2) Reviews of DoS, DIA IRTF, & CIA WTF Reports, 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 ruling was read into the Court Record at the Article 39(a) Session of US v PFC Manning on June 6, 2012.
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 Court 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.
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.
2.) The defense will advise the Court no later that 1 June 2012 if the defense request the Court to consider the ex parte supplement when conducting the MRE505(g)(2) in camera reviews.
Alright, the Court did receive a response from the defense on 1 June 2012.
And, that would be, I believe, it is a separate Appellate Exhibit 116 is that correct?
That is correct your Honor. It is Appellate Exhibit 116.
[MISSING] the additional continuance requests that I granted. Alright, for the record the Government requested the continuance from the 30th May to the 31th May to provide the Court and the defense with an unclassified and redacted version of the ex parte motion DIA filing. The reasons for the request are set forth in the Government’s motion.
The Government’s motion is Appellate Exhibit 127. And, the ruling with the Court granting the continuance, the defense did not object, is Appellate Exhibit 126. I have defense response here as Appellate Exhibit 116. And the redacted filing by the prosecution with respect to the substitution at Appellate Exhibits 114 and 115.
Does either side desire to supplement the record for this issue?
Your Honor. Just one clarification for the record. There is actually three redacted versions that were submitted. There was the true original in the original filing and affidavit. The request for extension in timing with the supplemental. That would have been marked as Appellate Exhibit 115 that had an additional redacted version with less redactions.
Alright, I have Appellate Exhibit 114, Appellate Exhibit 115.
114 should have two. Two sets of motions with redactions.
Alright. It does.
Yes, Ma’am. And then 115, should have one in addition.
Alright, why don’t you explain to me the difference is between Appellate Exhibit 115 and 114.
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.
Alright. Thank you. Alright, the Court is prepared to rule on this issue unless either side has anything further to [missed]?
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.
So they did have the ability to respond. But it is conceivable that the Government might have future filings and this case or in any other case under MRE 505 or CIPA where the information, even the fact that the Government is filing should not be disclosed to the defense unless there is information that the Court orders to be produced.
Alright, defense do you have any [missed] to add?
Our first response will be does the Court [MISSED] once we have seen an evidence determination.
And that would be Appellate Exhibit 116 is…
…is our response.
If you look…
I believe my review of Federal case law at which there is not a lot of military case law that I have seen, but Federal case law allows…well Government’s Court Act, the defense does not have a right to look at the Government’s submissions and look at the substitutions.
The defense does have the right to ex parte ask the Court to look at certain things with respect to what the defense theory of the case is and when conducting the in camera review look at it basically with the eye of the defense counsel which as you said the Court can.
And the Court looks at Appellate Exhibit 116 the defense has asked the Court consider a number of criteria when conducting its review and the Court…I’ve done that and the Court will continue to do that when conducting reviews under MRE 505(g)(3).
Anything further from either side?
No, your Honor.
1.) The defense motion to compel discovery damage assessments Department of State DIA IRTF and CIA. One 23 March 2012 the Court ruled that the Government by 18 May 2012 to disclose damage assessments by the DIA Information Review Task Force (IRTF), the Department of State (DOS), and the Central Intelligence Agency (CIA) reports for in camera review in accordance with R.C.M. 792 and 793 [See Rules for Court Martial, PDF].
2.) On 18 April 2012 the defense moved the Court to find that the above damage assessments are in the possession, custody, and control of the military authorities and discoverable as material in preparation of defense IAW R.C.M. 701(a)(2). On 26 April 2012 the Government requested the Court to reconsider its ruling with respect to the Department for State damage assessment because the damage assessment was a draft and therefore not discoverable. On 11 May 2012 the Court denied the Government’s motion. On 18 May the Government filed two classified ex parte motions for the Court to authorize redactions of the DIA IRTF final report and the WikiLeaks Task Force report. On 22 May 2012 the defense moved the Court to order the Government to provide a non ex parte version of its motion and proceed under MRE 505(i). On 29 May 2012 the Court granted the defense motion in part. One 1 June 2012 the defense filed its response to the Government motion for authorization and substitute and asked the Court to consider the following factors when conducting its MRE 505(g)(2) in camera reviews:
a.) The extent of the redactions and the substitutions.
b.) Has the Government narrowly tapered the substitutions to protect the Government interest that has been clearly and specifically articulated?
c.) Does the substitution provide the defense with the ability to follow up on leads the original document would have provided?
d.) Do the substitutions accurately capture the information within the original document?
e.) Is the classified evidence necessary to rebut the element of the 22 charged offenses bearing in mind the Government’s very broad reading of many of these offenses?
f.) Does the summary strip away the defenses ability to actively portray the nature of the charged leaks?
g.) Do the substitutions prevent the defense from wholly examining witnesses ?
h.) Do the substitutions prevent the defense from exploring all viable avenues for impeachment?
i.) Does the Government intend to use any of the information from the damage assessments? If so, is this information limited to the summarized document provided by the Government? Is the information intended to be used by the Government is not limited to the summarized document, does the defense in fairness need to receive the classified portions of the document to put the Government evidence in proper context?
j.) Does the original classified evidence present a more compelling sentencing case than those substitutions by the Government ?
k.) Do the proposed substitutions prevent the defense from learning names of potential witnesses?
l.) Do the substitutions make sense such that the defense would be able to understand the context?
m.) Does the original classified evidence necessary to help the defense in formulating defense strategy and making important litigation decisions in the case?
n.) Is it unfair that the Government had access to the unclassified version of the damage assessment and the defense does not ? Does that provide a tactical advantage to the Government?
After considering the pleadings, evidence presented, and argument of counsel and after conducting the in camera review of the DIA IRTF Final report and the WikiLeaks Task Force report considering the factors requested by defense the Court find and concludes the following:
1.) The Department of State damage Assessment. On or about 18 April 2012 The Government produced the Department of State damage assessment to the Court for in camera review, then requested reconsideration it 23 March 2012 order. On 11 May 2012 the Court denied the Government’s request reconsideration, and on 18 May 2012 the Government advised the Court that the Government produce a draft report without redactions to the defense counsel and their security experts. As such the defense motion to compel the DOS damage assessment and find it discoverable under R.C.M. 701(a)(2) is moved.
2.) DIA Information Review Task Force IRTF. On 18 May 2012 the Government produced the IRTF final report to the Court for in camera review and substituted final report with proposed redactions IAW MRE 505(g)(2). The Court conducted an in camera review of the original IRTF final report and the proposed substitutions considering the factors requested by the defense and finds.
a.) When evaluating the substitutions under R.C.M. 701(a)(6) or R.C.M. 701(a)(2) the redacted substitute is sufficient from the defense to adequately prepare for the trial and represents an appropriate balance from the right of defense to discovery and the protection of specific national security information. The redactions are minor and limited in scope. The Government is releasing it in full, almost in its entirety. The redactions are not favorable to the Accused materials and preparation for the defense or necessary to enable the Accused to prepare for trial. Each of the redactions constitutes specific classified information and the redactions are necessary to protect specific national security [MISSED]. The Government has disclosed the redacted DIA IRTF report to the defense.
[To Prosecution] Will that be made available?
Excuse me your Honor. The report was made available immediately your Honor, at the DIA.
Alright. So if I keep in my order by close of business today that is good enough?
Other than there is a geography issue, yes.
Just with regards to that, Ma’am. Because we do have our defense security experts here, unless there is some reason why we couldn’t view the redacted DIA report that the Court currently has here with our defense security and the Government security expert.
That would make it a much more easier pass for the defense to review this document in a timely fashion. Otherwise, we would have to travel apparently to the DIA and coordinate with our security experts a time to do that, to review the document.
Government, why don’t you coordinate with DIA and see if that is a viable option for them.
And advise them that the redacted version will remain in Court.
That the document will remain in Court.
CIA. The Government completed a review of the CIA WikiLeaks Task Force report for evidence favorable to the Accused and material to [MISSED] punishment. The Government has found none. The Government has filed an ex parte motion for in camera review of the Government IAW MRE 505(g)(2) to determined whether proposed Government substitutions shall be disclosed to the defense, or whether disclosure of classified information itself is necessary to enable the Accused to prepare for trial. The Court has conducting an in camera review of the classified information considering the factors requested by the defense. The Government substitute…
…let me ask you a question Government…before I go here.
Did you find when you reviewed that document that there was Brady material in there?
A moment… May we have a short recess, 5 minutes?
Do you object?
No, your Honor.
Alright Court is in recess till five minutes to 11:00 am.
COURT IN RECESS.
This Article 39(a) Session is called to order. [MISSED] are present when the court last recessed. [MISSED] Major Fein, I am looking through my notes, I believe I was advised by the Government that there was no unclassified information that constituted Brady material is that correct?
That is correct, you Honor.
OK. And, the classified material contains some?
Your Honor, your requests was is Brady material, there is no unclassified material. The CIA hasn’t approved a portion of the WTF which includes any Brady material that was found and we have identified that for the summary.
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.