The names and information for the expected 13 USG sentencing witnesses with classified testimony

The names and information for the expected 13 USG sentencing witnesses with classified testimony | US v Pfc. Manning

posted July 18, 2013

Below is a list of thirteen witnesses for the prosecution expected to testify in closed session or by classified stipulations of testimony in the sentencing phase of United States v. Pfc. Manning.

Manning opted to be tried by military judge alone in lieu of a panel of officers and/or enlisted personnel.

After the closing arguments, which will follow the prosecution’s rebuttal case (as well as the presiding military judge Col. Denise Lind’s ruling on defense motions to dismiss aiding the enemy and six other serious charges), Lind will deliberate and announce her findings on Manning’s guilt or lack thereof.

Unlike a federal criminal trial, where sentencing occurs after the creation of a pre-sentencing report, if Manning is convicted of any of the charges, a sentencing case will commence immediately. During the sentencing case, both defense and the prosecution will present evidence, call witnesses, and make arguments about appropriate punishment.

The maximum sentences for the charged offenses are outlined in the Manual for Courts-Martial and Lind’s previous court rulings.

Since the court ruled that motive and actual damage (or ‘lack of damage’) evidence was not relevant at trial (except to prove circumstantially that Manning was cognizant of the fact that the enemy used the WikiLeaks website), evidence of Manning’s intent and the impact of the leaks will finally be heard by the court at sentencing.

It remains to be seen, however, how much of the sentencing phase of this trial will be open to the public, since the government is expected to elicit testimony from these 13 classified sentencing witnesses in closed sessions or in classified stipulations.

The names of the 13 closed witnesses for the prosecution are sourced from pre-trial transcripts I personally took at the April 10 and May 21 Article 39(a) sessions and can be found redacted in two recently released pre-trial court rulings on closure.

To learn about the three classified damage assessment (from the DIA, ONCIX, and the Department of State), which are expected to be used as evidence during the sentencing phase, read my recent report in the Daily Beast.

Defense Intelligence Agency

Brigadier General (Retired) Robert Carr

Then-Secretary of Defense Robert Gates ordered then-director of the DIA, Ronald Burgess, to stand up an Information Review Task Force (IRTF, formerly TF 725) in July 2010. Gates reportedly handpicked Carr to lead the IRTF.

The IRTF was tasked to lead a comprehensive review of the documents allegedly disclosed to WikiLeaks in order to “make determinations about whether or not any TTPs [tactics, techniques, and procedures] [had] been exposed, and whether or not any adjustments need[ed] to be made, in light of that exposure,” according to then-Pentagon press secretary Geoff Morrell. According to a report by journalist Philip Shenon, the IRTF had “another distinct responsibility: to gather evidence about the workings of WikiLeaks that might someday be used by the Justice Department to prosecute Assange and others on espionage charges.”

The task force was made up of 80 to 120 people including intelligence analysts and counterintelligence experts from the DIA; U.S. Pacific Command; U.S. Central Command; and the Under Secretary of Defense for Intelligence, which is responsible for managing the ongoing Department of Defense investigation into WikiLeaks. The FBI and the Army Criminal Investigation Command (CID) also participated in the IRTF. The Department of State began working with the IRTF in July to “review any purported State material in the release and provide an assessment, as well as a summary of the overall effect the WikiLeaks release could have on relations with the host country,” according to testimony by Ambassador Patrick Kennedy, the under secretary for management at the Department of State, before the Senate Committee on Homeland Security and Governmental Affairs in March 2011.

By the end of the summer of 2010, the IRTF had gone through 70,000 documents already published by WikiLeaks.

According to an early pretrial defense filing, the IRTF concluded “that all the information allegedly leaked was either dated, represented low-level opinions, or was commonly understood and known due to previous public disclosures.” Furthermore, Gates wrote a letter to the chair of the Senate Armed Services Committee, Senator Carl Levin, stating that the initial assessment of the IRTF while “in no way discount[ed] the risk to national security; however, the review to date has not revealed any sensitive source and methods comprised by this exposure.”

Colonel Julian Chesnutt, USAF

In the Spring of 2011, Chesnutt was serving as U.S. Defense Attaché in Islamabad, Pakistan, according to the Department of State phone directory, and is currently the Defense & Air Attaché, U.S. Embassy in Tel Aviv.

John Kirchhofer

In March 2011 Kirchhofer was promoted to the civilian rank of Defense Intelligence Senior Level (DISL) and worked at the Defense Counterintelligence and Human Intelligence Center at the DIA.

Department of State

Ambassador Patrick F. Kennedy, Under Secretary for Management

Diplomatic Security Services (DSS) partnered with the Departments of Defense and Justice in the investigation of Julian Assange, WikiLeaks, and Manning. DSS reports to Ambassador Patrick Kennedy, the under secretary for management at the Department of State.

DSS handled the investigation of all leads involving the Department of State and assisted the Department of Defense and Justice with forensic analysis of hard drives that arrived from Iraq on June 10, 2010.

DSS had been investigating the unauthorized disclosure of Department of State material in Iceland– presumed to be the February 2010 publication of Reykjavik 13 by WikiLeaks– “several months” before Army Criminal Investigation Command (CID) became involved in the Manning investigation, according to the Army Computer Crimes Investigative Unit (CCIU) lead case agent.

The same CCIU agent testified at Manning’s Article 32 pre-trial hearing in December 2011 (what would be akin to a grand jury in the military regime) that the “State Department became involved immediately because of nature of information obtained in [the] chats,” referring to the alleged instant messages between Adrian Lamo and Manning in May 2010.

In mid-June 2010, a DSS agent accompanied Army CID agents to interview Manning’s aunt and search her home in Potomac, MD.

In early June 2010, according to then assistant secretary of public affairs, P.J. Crowley, the Department of State was cooperating with the DIA IRTF to “assess the impact of these disclosures.” Kennedy testified, however, before the Senate that the Department of State began working with the DIA IRTF in July 2010:

When DoD material was leaked in July 2010, [the Department of State] worked with DoD to identify any alleged State Department material that was in WikiLeaks’ possession. We immediately asked Chiefs of Mission at affected posts to review any purported State material in the release and provide an assessment, as well as a summary of the overall effect the WikiLeaks release could have on relations with the host country.

Following the completion of the [DIA] review in August, when it was believed that purported State cables might be released, the State Department instructed all Chiefs of Missions to familiarize themselves with the content in the Net Centric Diplomacy (NCD) database should a release actually occur.

The author of the original August 2011 “draft” WikiLeaks Department of State damage assessment was the then director of counter-intelligence and consular support in the Bureau of Intelligence and Research (INR). The author was also responsible for coordinating counterintelligence and sensitive law enforcement operations and policy for the Department of State and its self described “global law enforcement agency,” the DSS.

The author was also the Department of State’s primary liaison with the National Counterterrorism Center, and the Terrorist Screening Center (TSC) – an inter-agency organization lead by the FBI and responsible for a “single database of identifying factors” about individuals suspected by the UGS of involvement in terrorist activities.

According to the pre-trial testimony of Catherine Brown, deputy assistant secretary of state for INR and the editor of the draft damage assessment, the damage assessment was compiled with input from embassies and consulates, namely as a result of the Chiefs of Missions review mentioned above. Brown reported directly to Kennedy and she sent her edited copy of that Department of State damage assessment to him.

Although not confirmed, the Department of State damage assessment is expected to be one of three damage assessments used as classified evidence during the sentencing phase of the Manning trial.

Furthermore, according to Kennedy’s testimony before the Senate in March 2011:

When the press and WikiLeaks announced that they were going to release purported State cables starting on November 28, 2010, the State Department took the following immediate actions: 1) Established a 24/7 WikiLeaks Working Group composed of senior officials from throughout the Department, notably our regional bureaus; 2) Created a group to review potential risks to individuals; and 3) Suspended SIPRNet access to NCD (SIPRNet is a DOD network).

Kennedy testified to Congress in late November and early December of 2010 about the WikiLeaks disclosure of diplomatic cables. Kennedy is also the Original Classification Authority for the 117 cables charged against Manning in this case. Kennedy testified in March 2011:

During this period, the Department kept Congress apprised of both the international fallout caused by the WikiLeaks’ disclosure and the steps undertaken to mitigate them. The Department convened two separate briefings for members of both the House of Representatives and the Senate within days (December 2, 2010) of the first disclosure by WikiLeaks and appeared twice before the House Permanent Select Committee on Intelligence (December 7 and 9, 2010).

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

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

“We were told [the impact of WikiLeaks revelations] was embarrassing but not damaging,” a congressional aide told Reuters.

The WikiLeaks Mitigation Team at the Department of State also reported to Kennedy. It addressed “policy, legal, security, counterintelligence, and information assurance issues presented by the release of these documents.” The WikiLeaks Mitigation Team was one of the working groups established on the directive of then-Office of Management and Budget Director Jack Lew’s in November 2010.

The Office of the National Counterintelligence Executive, part of the Office of the Director of National Intelligence, has a damage assessment, which will be used as classified evidence in the sentencing phase of the Manning trial. That damage assessment was the result of collated reports from internal mitigation teams, like that in the Department of State, set up after the OMB directives. All three damage assessments are classified at the SECRET level.

Michael Kozak, Acting Principal Deputy Assistant Secretary, Bureau of Bureau of Democracy, Human Rights, and Labor

The Bureau of Democracy, Human Rights, and Labor, publishes the Department of State Human Rights Reports, and is responsible for the WikiLeaks Person’s at Risk Group.

According to the pre-trial testimony of the director of the Operations Center at the Department of State, Rena Bitter, who was responsible for setting up the 24/7 WikiLeaks Working Group (described below), the Department of State Persons at Risk Group was stood up when the 24/7 group disbanded. Bitter testified that the Persons at Risk Group “wanted to identify people who may have been identified as at risk due to disclosures in the purported State Department information, and develop a way to handle…develop ways to help them, and policy to deal with the issue on an ongoing basis.” According to Bitter, the Persons at Risk group worked between December 2010 to May 2011, when it stopped meeting formally.

In a famous quote in December 2011, the Bureau of of Democracy, Human Rights, and Labor’s deputy assistant secretary, Daniel Baer, said, “theft is not the same as freedom of expression.” The assistant secretary for the Bureau, Michael H. Posner, also said in March 2011:

I want to answer if I can also very quickly the question on the relationship of Internet freedom and WikiLeaks. I think they’re separate things. The U.S. government’s position has been from the beginning that there was a violation of our law by a U.S. former military person, Private Manning, who took classified private information and he’s being prosecuted under U.S. military law.

The reason information is kept classified is partly national security. It’s also partly to protect the well-being of people we communicate with. One of my man [sic] difficult jobs is to assess the various risks that we put before people. There are literally hundreds of cases of people who have been identified in those 250,000 cables who are not happy about the fact that they’ve been publicly identified as talking to the U.S. government. Some of them have had to be moved, some of them we’re in the process of trying to communicate with in a range of countries around the world.

Elizabeth Dibble, Principal Deputy Assistant Secretary, Bureau of Near Eastern Affairs

According to the declassified inspection report of the Bureau of Near Eastern Affairs by Broadcasting Board of Governors, Office of Inspector General Inspection, “The bureau was required to staff two 24/7 task forces and a number of ‘shadow task forces’ through mid-March [2010], in large part to make sure that the evacuations of the U.S. citizens from Egypt, Libya, Bahrain, and Yemen proceeded smoothly, and to manage the effects of additional WikiLeaks disclosures of purported embassy cables.”

The report states that the disclosure generated more information for the Bureau of Near Eastern Affairs (NEA) than any other:

The 2010 WikiLeaks disclosures of purported Department cables generated more information attributed to NEA posts than to any other region. The disclosures had an immediate impact on U.S. relations with all NEA countries, and a profound impact on some.

The NEA inspection report mentions that the “U.S. Ambassador in Tripoli was quickly recalled after a particularly strong reaction from the Libyan Government,” but goes on to cite activity by the 24/7 WikiLeaks Task Force stood up by the Department of State Operations Center, which, according to the pre-trial testimony of Bitter, was established primarily to manage negative publicity, in other words to “stay ahead of the release of information of purported cables and to try to insure that we could understand what was public and make sure the State Department officials were aware of what information was…what information had now become public and what they might have to respond to.”

Bitter also testified last Summer, “At the time, in particular it was important because the Secretary was traveling overseas and seeing a variety of different interlocutors, and she was seeing folks at a particular multi-lateral event where she would have run into a lot of her counterparts.”

The NEA inspection report states:

The designated DAS [Deputy Assistant Secretary] ably led NEA’s response to the WikiLeaks publicity, which included a task force to review the damage, summarize reactions from all posts, and prepare the Secretary for potentially difficult conversations with foreign officials in the affected countries. The head of NEA’s task force participated in the Department’s WikiLeaks Task force. In coordination with the Bureau of Public Affairs, NEA’s public diplomacy staff developed an innovative initiative, in which former ambassadors were deployed to educate audiences about the role of cable traffic in the conduct of American foreign policy. The bureau also coordinated with senior DOD officials traveling to the region to reinforce with foreign partners the importance of continuing to work closely on issues of mutual concern.

Finally the report mentions the Chiefs of Mission review, directed by Patrick Kennedy above:

As WikiLeaks cable disclosures continue, the regional affairs staff leads a bureau-wide effort to evaluate the risks of compromised cables, give advice to U.S. embassies, and maintain a log of WikiLeaks actions. The inspection team heard numerous comments from NEA staff about how the WikiLeaks experience has inhibited communications by cable, as well as emails, between posts and the Department.

John Feeley, Principal Deputy Assistant Secretary, Bureau of Western Hemisphere Affairs

Military prosecutors entered a stipulation of classified testimony by John Feeley, principal deputy assistant secretary, Bureau of Western Hemisphere Affairs, during the trial ‘on the merits’. While the contents of the classified stipulation are unknown (because his testimony is redacted) 27 of the 117 cables charged against Manning under the Computer Fraud and Abuse Act (which has an Espionage Act clause) were identified.

One cable, entitled, “07KINGSTON25 JAMAICA: MALARIA UPDATE” has left commentators confused as to how military prosecutors or the government could argue that this cable relates to the national defense or was useful to the enemy (two criminal elements that the USG must prove in addition to others to find Manning guilty of Espionage and Aiding the Enemy). When I asked national security commentator, Marcy Wheeler, about the Kingston cable she noted, that an October 2007 update on the outbreak of malaria in Jamaica was removed from Center for Disease Control website on January 14, 2011, around the time that the diplomatic cables were being published by WikiLeaks. Wheeler speculates that the cable ‘might‘ have been charged, because military prosecutors want to argue that it gives a roadmap for how a country would respond to a case of bio-terrorism.

Though not cited in any charged cable, Feeley may also bring up how the government of Ecuador declared the United States Ambassador to Ecuador, Heather M. Hodges, persona non grata under Article 9 of the Vienna Convention on Diplomatic Relations in April 2011, citing confidential cables released to the public by WikiLeaks.

The biggest unanswered question regarding the 117 diplomatic cables and five Joint Task Force Guantanamo Detainee Assessment Briefs (which are charged under an Espionage Act offense), is how political their selection was. The same question applies to the classified testimony stipulated to by individuals like Feeley.

Joint Improvised Explosive Device Defeat Organization (JIEDDO)

According to the U.S. military organization’s official website, “JIEDDO is focused on six areas: driving down the effectiveness of IED attacks; homemade explosives, primarily made from fertilizer; the threat to dismounted operations in Afghanistan; the transition from coalition security to the Iraqi government; working toward a whole-of-government approach to resolve the challenges associated with IEDs; and on the resurgence of improvised rocket-aided munitions in Iraq,” and probably relates to the charges for the Significant Activity reports published by WikiLeaks as the Iraq War Logs and the Afghan War Diary.

James McCarl

According to publicly available information, James McCarl (http://www.ndu.edu/inss/docuploaded/7thLessonsLearned_Agenda.pdf) supervises over 800 defense analysts at JIEDDO.

Adam Pearson

According to his LinkedIn profile, Adam Pearson is the team lead for Cyber Counter-IED team at DoD’s Joint Improvised Explosive Device Defeat Organization (JIEDDO).

Pentagon

Rear Admiral Kevin Donegan, Naval Warfare Integration, Pentagon

Rear Admiral Kevin Donegan, CENTCOM, Director of Operations is the Original Classification Authority, who conducted classification reviews for two PowerPoint (PPT) slides of official reports originated by CENTCOM, and their impact on national security due to the release of the information. The PowerPoint (PPT) presentations concern a May 2009 U.S. bombing in the Farah Province, Afghanistan, that killed 140 woman and children. The PPT is charged under the Espionage Act in Specification 10, or Charge II, General Article 134.

Defense had requested Donegan’s classification review of the the July 2007 U.S. Baghdad airstrike video, Collateral Murder, for judicial notice to rebut the classification review by Chief Warrant Officer John Larue, which said the unclassified video “contains TTPs, sensitive Army aviation information.” According to defense, Donegan’s classification review says that there were “no TTPs” in the unclassified video known as “Collateral Murder”.

Major General Kenneth F. McKenzie, USMC Headquarters Staff

According to his official biography, at the time of the charged offenses, Major General Kenneth McKenzie, served as the Deputy to the Deputy Chief of Staff (DCOS) for Stability, for the International Security Assistance Force (ISAF) in Kabul, Afghanistan. One month after Manning was arrested in Iraq, McKenzie “was assigned as the Director, Strategy, Plans, and Policy (J-5) for the U.S. Central Command in Tampa, Florida.” Furthermore, in “August 2012, he reported to Headquarters Marine Corps to serve in his current assignment as the Director of the Quadrennial Defense Review Integration Group.”

Major General Michael Nagata, former deputy commander of the Office of Defense Representative to Pakistan (ODRP)

Current commander of the Special Operations Command Central at MacDill Air Force Base in Tampa, FL

US Army Computer Crimes Investigative Unit (CCIU)

Special Agent David Shaver, CCIU (now at the Department of the Treasury)

Special Agent David Shaver was the lead CCIU forensic examiner, who specializes in computer intrusion, and completed 19 classified CCIU reports related to the case. Shaver said he became involved when the Army Computer Crimes Investigating Unit (CCIU) was assigned to the case, which was officially in mid to late June 2010, but based on Shaver’s pre-trial testimony , he had to have been involved as early as 27 May 2010 – the day after Manning was detained at FOB Hammer, Iraq.