This transcript was typed from the press pool at United States v Pfc. Manning's Article 39(a) Session Motions Hearing on 16 March 2012 at Fort Meade, MD. This page may contain errors or be incomplete.
For more information on the lack of public and press access to US v. Pfc. Manning, visit the Center for Constitutional Rights, which filed a petition requesting the Army Court of Criminal Appeals "to order the Judge to grant the public and press access to the government's motion papers, the court's own orders, and transcripts of proceedings, none of which have been made public to date".
The 16 March 2012 Article 39(a) Session of US v. Pfc. Manning is held in same courtroom as his Article 32 Pretrial Hearing.
- General Court Martial Convening Authority: Maj. Gen. Michael S. Linnington
- Commander of the U.S. Army Garrison, Joint Base Myer-Henderson Hall: Col. Carl R. Coffman
- Commander of U.S. Army Headquarters Command Battalion: Lt. Col. Eric Fleming
- Military Judge: Col. Denise R. Lind
- Prosecution: Captain Ashden Fein, Captain Joe Morrow, Captain Angel Overgaard, Capt. Hunter Whyte
- Defense: Mr. David Coombs, Major Matthew Kemkes and Captain Paul Bouchard
Proceedings were delayed until 13:00 because defense and prosecution were in Chambers with Judge Denise Lind hashing out a Court Protective Order.
Court is called to order.
Judge Lind We are starting late today, because the parties and Court were going over a Protective Order regarding the handling of classified information. Both parties had filed orders marked as Appellate Exhibits...
Judge Lind: Looking at Appellate Exhibit 4 under MRE [Military Rules for Evidence] 505...Appellate Exhibit 5 [Prosecution's Motion for Protective Order] and I believe supplements as well... Alright, I am looking at Appellate Exhibit 22, Supplement for Military Relief...Supplement for Prosecution...Appellate Exhibit 18 is the Supplement...Appellate Exhibit 23...any additional Government response to MRE 505?
Prosecution: Captain Ashden Fein: Yes, the Prosecution's...
Judge Lind: Appellate Exhibit 13, under MRE 505...
Fein (Prosecution): Appellate Exhibit 22, Supplement to MRE 505... Also Appellate Exhibit 18, Supplement to the Prosecution's Motion for Protection...
Judge Lind: I have 18...Appellate Exhibit 18, 13, 22, and 23...correct?
Fein (Prosecution): Yes.
Defense: Mr. David Coombs: Yes.
Judge Lind: As I said earlier, we have spent a good part of day going over all of these motions for Protective Orders, as well as Protective Orders proposed by both sides, and we have finalized a Protective Order that I believe best balances protection of classified info for national security and the rights of the accused.
Secretary hands Judge Lind a document.
Judge Lind: I need to sign it. That would be Appellate Exhibit 32. The other two outstanding things are a ruling on Motion to Compel Depositions, the Motion to Compel Discovery is under advisement. Defense is submitting further evidence...send it via email to parties...and it will be addressed in open Court at next session. Other evidence...?
Fein (Prosecution): Government might also submit evidence.
Judge Lind: Defense Moves to Compel Deposition...
Judge Lind reads her ruling which is broken down into sections that explain the motion, the defense argument, and her ruling.
[Judge Lind reads very quickly. Here is what I captured:]
Defense has asked for the oral deposition of the following individuals:
James Culky (sp.), 4th Cavalry Division, Brigade S2 for the classification review of the Apache gun video.
Rear Admiral Kevin Donegan, USCENTCOM, Director of Operations conducted classification review of two PowerPoint (PPT) official reports from CENTCOM related to Specification 10 of Charge II and their impact on national security.
Mr. Betts, USCYBERCOM, Chief Classification Officer for the classification review of the alleged chat logs and the information discussed therein.
Lt. General Robert E. Schmidle, Deputy Commander, USCYBERCOM who concurs with the classification made by Mr. Betts declaration.
Vice Admiral Robert S. Harward, deputy commander, US Central Command (USCENTCOM), responsible for the classification review of the CIDNE Iraq and Afghanistan Significant Acts (SIGACTS) and video, BE22PAX.zip [alleged Garani air strike video]
Mr. Patrick F. Kennedy, Under Secretary for Management, Department of State (State Department) (DoS), "will testify concerning his review of the disclosure of Department of State (State Department) (DoS) diplomatic cables stored within Net Centric Diplomacy server and part of SIPDIS." Defense has not received contact information from the Government as to how to contact this individual.
Rear Adm. David B. Woods, Commander, Joint Task Force Guantanamo, "will testify concerning his review of the disclosure of five documents, totaling twenty-two pages" and its impact on national security.
No further information was given in Court regarding this individual except that Rowland was considered an "essential witness" along with James Culky (sp.), 4th Cavalry Division, Brigade S2 by defense at the Article 32 Pretrial Hearing, and the Government had not provided the defense with the contact information for this individual.
According to defense February 16, 2012 Motion to Compel Depositions, the defense requested seven Original Classification Authorities (OCAs) as witnesses on their 2 December 2011 Request for Article 32 Witnesses. Witness Number 39 to 45 represent the seven Original Classification Authorities (OCAs) on the 2 December 2011 Defense Request for Article 32 Witnesses list.
According to the defense 16 Feb 2012 Motion to Compel Depositions, a subsequent Original Classification Authority (OCA) "was requested as soon as his identity was known" to the defense."
At the 16 Mar 2012 Article 39(a) Session the names of eight individuals were revealed with the addition of Robert Rowland. In Lind's ruling on the 16 Feb 2012 Motion to Compel Depositions Lind gave descriptions for each of the eight individuals except for h.) Robert Rowland.
Judge Lind continues reading background information in her ruling.
Lind states that Culky (sp.) and Rolland were considered "essential witnesses" by the defense for the Article 32 Pretrial Hearing.
Judge Lind then reads the lists of charges.
Judge Lind reads excerpts from the Article 32 Pretrial Investigating Officer, Lt. Col. Paul Almanza's, previously unavailable rulings on the 2 December 2011 Defense Request for Article 32 Witnesses
Judge Lind reads the ruling by Lt. Col. Paul Almanza, the Investigating Officer at the Article 32 Pretrial Hearing. The Investigating Officer did not find Culky (sp.) a "relevant" witness for the Article 32 Pretrial Hearing.
Judge Lind reads the ruling by Lt. Col. Paul Almanza, the Investigating Officer at the Article 32 Pretrial Hearing, as to whether or not the three Apache videos were classified or the fact that the Government is not alleging that they are classified is not "relevant" for the Article 32 Pretrial Hearing.
Judge Lind reads the ruling by Lt. Col. Paul Almanza, the Investigating Officer at the Article 32 Pretrial Hearing, stating Rear Admiral Kevin Donegan, USCENTCOM, Director of Operations was "not reasonably available."
Judge Lind reads the ruling by Lt. Col.Paul Almanza, the Investigating Officer at the Article 32 Pretrial Hearing, that Mr. Betts, USCYBERCOM, Chief Classification Officer was also "not reasonably available" and that his testimony did not "outweigh" his appearance.
Judge Lind reads that the ruling by Lt. Col. Paul Almanza, the Investigating Officer at the Article 32 Pretrial Hearing, that the testimony of Lt. General Robert E. Schmidle, Deputy Commander, USCYBERCOM does not not "outweigh the difficulty or expense to government operations."
Judge Lind reads that the ruling by Lt. Col. Paul Almanza, the Investigating Officer at the Article 32 Pretrial Hearing, that Vice Admiral Robert S. Harward, Deputy Commander, USCENTCOM, was "not reasonably available; and Lt. Col. Paul Almanza's ruling on Mr. Patrick F. Kennedy, Under Secretary, Management, Department of State (State Department) (DoS) and Rear Adm. David B. Woods, Commander, Joint Task Force Guantanamo...
Robert Rolland is never mentioned again, which likely means that Rolland was redacted from open Court.
Judge Lind concludes by denying the Defense Motion to Compel Depositions.
Judge Lind rules that the Investigating Officer's determination of the witnesses reasonable availability in Article 32 Pretrial "was not improper" as the defense had argued.
Judge Lind states that she bases her ruling on the Article 32 Pretrial Rules in that the Investigating Officer, Lt. Col. Paul Almanza, performed the "correct balance test, depositions only allowed in cases used to preserve essential testimony."
Judge Lind states that affidavits can be considered sworn statements under Section 28, 1746.
Judge Lind continues:
Judge Lind: Government had offered [Original Classification Authorities] OCAs by telephonic. Regarding Discovery Request for three civilian witnesses [missed]...Regarding Defenses Request of 1 February 2012, Defense received on 29 February 2012 the contact info of Mr. Betts....Defense disputes Touhey applies...Article 9, RCM 702...in the interest of justice the motion is denied.
Judge Lind concludes with business of the Court:
Date for next proceeding is 24 to 26 April 24 2012 at 9:00 a.m. at Fort Meade, MD.
Judge Lind says that "what is to be worked on there not decided."
End of 16 March 2012 Article 39(a) Session.
Notes on the case:
The Government chose Fort Meade, MD as the location of the Manning legal proceedings. "The government's claim that the cost and burden is too great to require the production and personal appearance of relevant and necessary witnesses is not justified. It was the government's decision to conduct this Article 32 investigation at Fort Meade." (See Defense Request to Compel the Production of Article 32 Witnesses)
The Government acknowledged that two fo the defense requested Original Classification Authorities (OCAs), Lt. General Robert E. Schmidle Deputy Commander US CYBERCOM and Mr. Betts Chief Classification Officer US CYBERCOM, were stationed at Fort Meade, MD. Defense wrote, "It is indefensible to suggest that neither was "reasonably available" to be produced at the Article 32 which was held at the OCAs' home base."