This transcript was typed from the press pool at United States v Pfc. Bradley Manning's Article 39(a) Session Motions Hearing on 15 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 15 March 2012 Article 39(a) Session of US v. Pfc. Manning is held in same courtroom as his Article 32 Pretrial Hearing.
An AFP reporter informed me that the room where the press pool is viewing the legal proceedings via live video feed, Smallwood Hall, is also the location where the press views Guantanamo (GTMO) military tribunals via satellite link.
- 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, Captain Hunter Whyte
- Defense: Mr. David Coombs, Major Matthew Kemkes and Captain Paul Bouchard
9:38 a.m. proceedings begin.
Judge Lind: Please be seated. Court is called to order. It appears that all parties are present with the exception of Major Matthew Kemkes [defense counsel]. Is that correct?
Defense (Coombs): That is correct.
Judge Lind asks Pfc. Manning for his consent for Major Matthew Kemkes absence in Court today, 15 March 2012.
Judge Lind: All right. I would like to begin by doing a little house keeping. Some of the things that have occurred is that we met in chambers for an RCM [Rules for Court Martial] 802 conference, which concerns logistics and issues, which we will now synopsize for the Court record.
At the RCM 802, parties agreed to review the Court Publicity Order; Defense Motion for Deposition; Government's due diligence under Brady... the Government says it will take additional time because of the voluminous amount of documents involved in the disclosure... Defense advised regarding Speedy Trial... Any one want to supplement regarding what happened?
Fein (Prosecution): No, your Honor.
Coombs (Defense): No, your Honor.
... [This symbol will indicate missed transcription.]/p>
Judge Lind continues her recitation of the RCM 802 conference for entry into the Court record.
Judge Lind: When the Government spoke about Brady search, the Government said they had not found any Brady material even though they looked for a year.
Fein (Prosecution): Correct. Evolving...
Judge Lind: Next up Publicity Order, which is Appellant Exhibit 11. Is that correct? Any objection to Appellant Exhibit 11?
Judge Lind explains the Publicity Order which sets parameters for counsel during trial around the press.
Judge Lind discusses what was spoken of in the RCM 802 meetings. Namely, the Government and defense Protective Orders; a Bill of Particulars; Defense Motion to Compel Discovery; and a Defense Motion to Compel Deposition.
Judge Lind: After the arraignment, the Government learned that it had not been receiving emails, and the Court notes, the Government will use an alternate email address. Government had a server issue. Captain [NB Fein may have been promoted to Major at this point] Ashden Fein (prosecution) please explain.
Fein (Prosecution): After realizing that the Prosecution did not receive emails, we contacted and worked with the IT [Information Technology] department. Certain emails were blocked because they were marked as spam [because the emails contained the term WikiLeaks]. The spam filter is now checked every day before 10:00 a.m.
Fein (Prosecution) explains specifics regarding a regime for spam filter checking.
Judge Lind: Protective Order for Classified Information, the email has been marked Appellate Exhibit 18. Parties agreed to confer to mutually acceptable Protective Orders. Both sides had proposed Protective Orders. Defense requested a Protective Order, and then went through its request regarding due diligence under Brady. Want to add anything?
Coombs (Defense): Just M'am that once we understood the Government's position on what they did, then we removed our request that the Government show a list of what they had done in order to do due diligence regarding understanding of Brady...was no ability that Government complied with due diligence.
Fein (Prosecution): Government would be able to proffer motion...
Coombs (Defense): Defense is not willing to waive Brady due diligence.
Judge Lind: All these emails are being captured by the Government and will be part of the record. Government was advise that it must provide a Bill of Particulars. Government did with the exception of three.
Judge Lind continues her recitation of the RCM 802 conferences regarding logistics, and asks for supplements to the Court record from defense and prosecution.
Judge Lind: Government did not receive before the arraignment a legal rational for the Court to consider a defense ex parte supplement at the arraignment...Government was asked if it objected in a 6 March 2012 telephonic RCM 802 at Government's request...following issues: Bill of Particulars; Response to an ex parte Supplement; discussion of Case Management Order; and Protective Order(s)
Next a discussion of classified info.
Judge Lind: This case deals with classified info. There are over three million pages of documentation in this case. Has the classified information been disclosed to Defense?
Coombs (Defense): Government has indicated charge documents. We have not received...
Fein (Prosecution): Defense has received... There are a few pieces of information not disclosed, but they do not fall within those number to properly protect.
Judge Lind: Does the Government intend to provide all the information?
Fein (Prosecution): Yes, with the exception for information that is classified.
Judge Lind: Are there other disclosure issues with classified information?
Fein (Prosecution): Yes, your Honor.
Judge Lind: The Government has a calendar for three phases. Do you plan to invoke MRE [Military Rules for Evidence] 505 privilege?
Fein (Prosecution): ...do not intend to invoke privilege...
An exchange takes place regarding this issue of MRE 505 privilege. MRE 505 refers to "Evidentiary privilege. Military Rule of Evidence 505 (Mil. R. Evid. 505) covers situations where classified information may be an issue in a case. The rules sets out specific notice and handling requirements when classified information may become an issue and how to handle evidentiary hearings. Also, the Services have developed regulations for the appointment of a Court Security Officer, courtroom security requirements, and access to closed sessions of court. Here is a summary of an article about this complicated rule of evidence."
Judge Lind: Government in camera review request...use of classified info. I don't see a provision in your time line. When does the Defense envision that occurs?
Coombs (Defense): Defense sent you an email explaining that, namely when Government provides discovery. At that point. The in camera review depends on Government.
Judge Lind: ...extended response you gave me....also asked Government, does the Government know if the evidence intended to compel is classified or not?
Fein (Prosecution): Yes. Some of it is classified. The Encase forensic images of hard drives in T-SCIF. Government did identify some drives that have not been turned over, because they were used in a classified T-SCIF. So, they are considered classified.
Judge Lind: In camera...both gave two weeks for review. Is that realistic considering the volume?
Fein (Prosecution): Don't think its reasonable.
Judge Lind: How long...?
Coombs (Defense): Believe if the Government actually produced...must have over thirty days... You would have thirty days...
Judge Lind: Where will I need to travel to?
Fein (Prosecution): Offices and SCIFs in DC
Judge Lind: Anything else parties wish to put on record...?
Coombs (Defense): No.
Fein (Prosecution): Wait a minute... (looks at his papers) No, your Honor.
Judge Lind: Let us move now to Defense Motion for Bill of Particulars. Defense Motion and Government Response. Defense Replied. We have those marked as the next Appellate Exhibit. Defense...
There is a discussion about the trial schedule.
Judge Lind: I am going to build in time into Court calendar for briefs. I need more than a day to go through filings.
Coombs (Defense): Filed RCM 802...your Honor talked about that defense could file a reply. Something we could talk about...built in time frame...if you can specify which motions. Motion hearings take a month. Too much time and would impact my client who has already been in Pretrial confinement...
Judge Lind: I am sensitive of Pretrial confinement...very concern about his [Pfc. Bradley Manning] right. We can't hand voluminous filings that the Court needs to address. If their are going to be fillings, I need to build in times...
Coombs (Defense): Which Motions are realistic things...?
Judge Lind: I am not in any way wishing to constrain filings. I just need to build in time. Okay. Defense Request for a Bill of Particulars, and if everyone has responded let's go through that. Pfc. Manning has been charged...
Judge Lind enumerates the charges and types of charges and explains what a Bill of Particulars is.
Judge Lind: Bill of Particulars. Nature of charges to prepare for trial. Purpose of Bill of Particulars, is that it should not be used for discovery. Government responded to all of the Defense request of Bill of Particular except three items. Response was as follows...appears to be one...the Government submitted two documents in response to Defense's Bill of Particulars...Enclosures one through three...(to prosecution) I would like all enclosures filed along with the motion. Do you have those...?
Judge Lind: Going to go through Bill of Particulars. [Lind spoke very quickly, so I will summarize...]
- Defense Question, "Who is the alleged enemy?" Prosecution Answer: "The Government has further clarified that the "enemy" to whom PFC Manning allegedly indirectly gave intelligence [via the WikiLeaks Web site] is Al-Qaida Al-Qaida in the Arabian Peninsula and an entity specified in Bates Number 00410660 through 00410664
- Defense Question, " What was the 'indirect means allegedly used in order to aid the enemy?'" Prosecution Answer: WikiLeaks Web site.
- Defense Question: "How did Pfc. Manning knowingly give intelligence to the enemy? Prosecution Answer: "Indirectly through the WikiLeaks Web site." [See "The Government also stated that its theory of indirect means was that Pfc. Manning gave the charged intelligence to the WikiLeaks website."
- Defense Question: "In Specification 2 and 3 [of Charge III], what is the unauthorized software alleged to have been added to the Secret Internet Protocol Router Network computer?" Prosecution Answer: "Wget."
- [Missed Defense Question.] Prosecution Answer: "Accused attempted FTP USER Account Password"
- Defense Question: "In Specification 2 and 3 [Charge III] which computer is the Government alleging the software was added to?" Prosecution: "126.96.36.199...on SIPRNet"
- Defense Question: "In Specification 4 [Charge III] how does the Government allege PFC Manning used an information system in a manner other than its intended purpose?" Prosecution Answer: "Downloaded Global Address List using SIPRNet."
[Remaining specifics obtained from Fort Meade Public Affairs spokesman afterwards.]
- "In Specification 5 [of Charge II] the Government alleges 'more than twenty classified records from the Combined Information Data Network Exchange Iraq database...'. The Defense requests that the Government identify the exact number and specific records it believes supports this specification for the Defense's review." Prosecution Answer: 52 records.
- "In Specification 7 [of Charge II ] the Government alleges "more than twenty classified records from the Combined Information Data Network Exchange Afghanistan database...". The Defense requests that the Government identify the exact number and specific records it believes supports this specification for the Defense's review." Prosecution Answer: 37 records.
- "In Specification 9 [of Charge II] the Government alleges 'more than three classified records from a United States Southern Command database...'. The Defense requests that the Government identify the exact number and specific records it believes supports this specification for the Defense's review." Prosecution Answer: 5 records.
- "In Specification 10 [of Charge II ]the Government alleges 'more than five classified records relating to a military operation in Farah Province, Afghanistan occurring on or about 4 May 2009...'. The Defense requests that the Government identify the exact number and specific records it believes supports this specification for the Defense's review." Prosecution Answer: 13 records.
- "In Specification 13 the Government alleges "more than seventy-five classified United States Department of State (State Department) (DoS) cables...". The Defense requests that the Government identify the exact number and specific records it believes supports this specification for the Defense's review." Prosecution Answer: 16 records
- Specifications 4, 6, 8, 12, 16 [of Charge II] all dealing with 18 USC 641. That is steal, purloined, and converted theory. Government has to come back and rely on one or all three.
Judge Lind continues and reads the Government's Bill of Particulars: believe Government disputes answering Specifications 13 and 14 of Charge II ["How did PFC Manning "knowingly exceed authorized access on a Secret Internet Protocol Router Network computer in Specification 13 [and 14] of Charge II?"].
Prosecution gives Judge Lind a redacted Charge Sheet.
Judge Lind: Specification number 13 [of Charge II] regards "knowingly exceeded unauthorized access...obtained info...more than 75 Department of State (State Department) (DoS) cables" Specification number 14 [of Charge II]...February 2010...'knowingly exceeded unauthorized access concerning Reykjavik 13' (to defense) Does the Government have to prove how?
Coombs (Defense): We are not looking for legal theory. We are looking for facts. We ask how he committed offense, we are not asking for theory, we are asking for facts. For example, are they saying he hack into Net Centric Diplomacy database?
Coombs (Defense): By means of such conduct? Whatever such conduct is?
Judge Lind: Is the Government alleging any particular way this occurred?
Prosecution: Defense is looking for legal theory or when he logged into SIPRNet computer.
Coombs (Defense): By means of such conduct. In the Article 32 testimony...Pfc. Manning, as 35 Fox, his boss gave him location to Net Centric database. When they allege "by means of such conduct," what are they alleging? So that we understand what we are defending against? If it's just that he went to the Net Centric database... or is it, "No, we have prove that he cracked in." And, then presumably by expert testimony. Defense is in the position of not being able to prepare. We would have to see what evidence in order to prepare to address a charge. It is a fundamental precept to tell the accused what he did that was a violation of the law. No different than Article 104, namely "indirect means" Well what does that mean? Which they did answer, saying "by giving the information to WikiLeaks."
Judge Lind: Okay. Government do you have a theory of means?
Prosecution: Manning had name and password. On the certain occasion that he obtain these documents, he was exceeding authorized access. There is no means. No mystery how he got on. Mr. Coombs is focusing on Net Centric Diplomacy database... When he [Manning] access to do certain things, not by means...
Judge Lind: So your means is that he accessed the computer to do certain things...?
Prosecution: They are part of the Specification of obtaining these cables and transmitting to WikiLeaks.
Judge Lind: Specification 2 and 3 [of Charge II] "adding unauthorized software" How is the Government alleging the software added? You are not asking what...you are asking how?
Coombs (Defense): So, I am not asking for mechanism. We have our own forensic expert who can talk about how, which is limited by the forensic information given by the Government. We believe this same program would be on other computers. Are they saying he hacked into the administrative privileges in order to add the software? Or that he ran the program from a CD, and "that" is added? Or that he put it on the desktop, and therefore that is how? Again, this goes back to being able to prepare the Defense. So, all I want to know...in what manner are you saying that he added the unauthorized software? Added the software to computers...are you saying he used an external CD, but the actual act of adding [unauthorized] software goes back to unfair surprise. We are not asking for entire proof, but when they say he added...?
Judge Lind: Is that an element the Government has to prove...?
Coombs (Defense): Yes, they have to prove it has not been authorized.
Judge Lind: Do they have to prove how or that is was added...?
Coombs (Defense): That is what they have to prove. How are they saying it was added?
Judge Lind: Government, do you know that...?
Prosecution: I don't think we can provide mechanics of how it was added. Again, we are not required to show how. Only that it was there.
Judge Lind: Do you know how he did it?
Prosecution: No, I don't think we do. But we do know that it was physically present on the computer.
Coombs (Defense): Are they saying is that it is actually on the computer? So they charged my client with adding unauthorized software. There is a computer with Wget. Is it really on the computer? If it shows that it was run from a CD or the program is sitting on the desktop as executable file...?
Prosecution: Your Honor, there is a forensic report on this. It was cited...[Bates No.] 00211037 accused primary computer.
Judge Lind: Do you have the base report?
Coombs (Defense): Yes.
Judge Lind: If you have it on the forensic report, then you don't need it in Bill of Particulars?
Coombs (Defense): The nature how they say it was added...
Judge Lind: Government does the forensic report address that...
Prosecution: Don't know.
Judge Lind: Is that expert available to the Defense? Can Defense call this expert...?
Judge Lind: Not adding to Bill of Particulars. Next. Manning..."converted"...question was, "What theory is the theory Government relying on?" (to defense) Want to elaborate?
Coombs (Defense): 18 USC 641 under three theories "steal, purloin, and knowingly convert" Government seem to limit to steal or knowingly convert. We are asking what they are alleging. That he stole and knowingly converted? Does it apply to each of the offenses? 22 separate charges for one act? If purloin is different that stealing? If they do in fact have an allegation, so we know what to prepare against. Or the requirements for knowingly converting? Building difference for required proof. If the Government is in fact saying...If their theory that they are saying is that he stole these items, don't hide the ball. Let the defense know what is alleged.
Judge Lind: I looked at the various definitions...and looking at them they seemed to...
Coombs (Defense): There is case law for "purloined"... I can provide that later. "Purloined" is stealing through deception.
Judge Lind: What about "steal or convert"? Meaning, take money or profit for someone else. That seems to make the definition the same.
Coombs (Defense): 5th Circuit is not a good Circuit. Federal case law to show conversion. Goes to common law tort of conversion. Show that the person is taking property so that owner is deprived of use and value of it.
Judge Lind: Government, is there a difference?
Prosecution: In 5th Circuit there is. Instructions...we will get to that later on.
Judge Lind: Does the Government have a particular theory...?
Prosecution: We would consider "steal" and "purloin" to be the same.
Judge Lind: The case law...if you would provide that to Government, and if there is a clear theory on which you are proceeding let the defense know. If it's one theory for one Specification, please let the defense know.
Prosecution: I think this could probably be resolved with constructions.
Judge Lind: If it's like in the military where "steal" as taking, holding, or obtaining...three different theories...
Lind explains differences.
Judge Lind: Perhaps by 23 March 2012.
Prosecution: Yes, M'am.
Coombs (Defense): Yes, M'am.
Judge Lind: Anything else on Bill of Particulars? Let's move on to the Defense Motion to Compel Discovery. Let's begin with the ex parte filing. Mr. Coombs please first of all announce for record...ex parte means Government doesn't get to see it [because it might reveal Defense legal theory].
Coombs (Defense): With regards to ex parte, Defense filed an ex parte giving evidence that we are filing... Government sought clarification if it was a motion or supplement. We gave them information. Then Government asked for clarity that it was supplement, also that the Court Secretary would review. Then, that it did not contain classified information. We then asked Government if they objected. Fein (prosecution) said, "No objection." Afterwards we figured out that the Government's email was blocked because of the word "WikiLeaks" The Government did not receive that email. Email was about if I can consider an ex parte filing. The Government was not prejudiced by that. What we were providing and how we were providing, not sure if the Court could consider. So now they want you to revisit. That the Government provide justification to revisit why you should not consider ex parte...
Summary of Coombs argument:
- Failed to file justification for you to revisit ruling.
- Inexplicable authority for your request.
- They acknowledge that either are considerations for you to concede the ex parte filing.
Judge Lind: Government?
Prosecution (Overgaard): We would have objected. We did not get those emails. We did know they were filing. The Government thought they were filing the how instead of the why? Encase forensic images. The "why" would be to show materiality or evidence. The "why" the defense is going to use when Government did not object. So the Government is not objecting to the legal theory...well the Government would based on case-law...defense needs to make a preliminary showing of materiality or evidence.
Judge Lind: Defense?
Coombs (Defense): Government never filed. Are you asking under Brady or under a specific item...?
Prosecution (Overgaard): If I may in point number six. They did not want to say how each request is relevant or necessary. It doesn't give Government opportunity to object.
Judge Lind goes on and cites case law. Gives both the defense and prosecution argument. Lind denies the ex parte supplement to the discovery motion that at this point is still being considered.
Judge Lind: Defense Motion to Compel Discovery, Appellate 8. Prosecution Response, Appellate 15, eight enclosures. And, the Defense Reply to Prosecution Response to Defense Discovery Request, Appellate 26.
Prosecution: Additionally, US gave Court reporter a supplement that should have been included in the disclosure.
Judge Lind: Any objection?
Coombs (Defense): No.
Judge Lind: Copy for me?
Prosecution: Yes, M'am.
Judge Lind: Sworn Statement Master Sergeant Brian Paki (sp.) Appellant Exhibit 16. Alright defense lets begin saying for record what are you request...?
Coombs (Defense): For the Defense's Motion [to Compel Discovery] indicates both RCM 701(a)(2) items requested that you compel discovery of...
Judge Lind: I don't mean to interrupt you... I need the Manual for Court Martial.
Coombs (Defense): Under RCM 701... Asked for Court to Compel Discovery under 701(a)(2) That would be "helpful" for pretrial of defense 701(a)(6), military version of Brady. We detailed those in the Defense Motion to Compel Discovery. Give the Court the 12 separate discovery request...
Judge Lind: Proceed...
Coombs (Defense): The Government does not seem to understand the discovery obligations under Brady... Second...
Coombs starts to cite Rules For Court Martial and case law around discovery versus production rules.
Coombs (Defense): With regards to first.. Brady requires under RCM 701(a)(6), based on Government's response, military Brady is broader than military standard. Trial must provide information even favorable to the accused or that might reduce punishment. We are asking for damage assessments.
Judge Lind: What is the evidentiary basis?
Coombs (Defense): And, also the ex parte filing.
Coombs (Defense): On the issue of Brady requirement. Look at public statements of both Secretary Clinton and Gates that "no sources have been compromised."
Judge Lind: What enclosure was that?
Coombs (Defense): Motion to Compel Discovery...? Don't have it in front of me.
Judge Lind: I do. It is enclosure articles...Washington Post...
Coombs (Defense): And, even if you set aside damage assessment. In our RCM 802 [Conference], the Prosecution says they have been "looking high and low for Brady." "Even going to the Department of Agriculture"... They have stated here they haven't found any Brady material. They think it is the smoking gun. And, that is not the standard in the federal case law. Under RCM 701(a)(2) the Government must disclose material. Case law in this instance means "helpful". I have included a timely article by Aaron Carpenter (sp.) who wrote about discovery obligations under RCM 701 and 703. All that is is required that it is "helpful" to adequately prepare. Under 12 separate discovery request Government continually denied, saying "the US will not provide" Authority is RCM 701(a)(2)...for file a motion to compel discovery. Why have they not provided...? They site RCM 703 and indicate that it is not relevant, but THAT is a production rule for trial, not a discovery rule for pretrial. Government is holding us to RCM 703. If the Government says, "We want to be relieved of our obligation," they haven't done that. Relying on wrong rule under 701(a)(2) they must produce that item, or any item that may assist us in preparing our case...
Judge Lind: I want to hear from the defense. What is your position on other agencies?
Coombs (Defense): This is not some random agency, and, so therefore requirement for Brady is to go to that agency for Brady search. There is a Brady obligation laid on the Government's doorstep. A lot of these items give a more onerous requirement, but again the Government reply on RCM 703. That explains why they haven't found any Brady material. They rely on an appellate standard for Brady . Third aspect, namely Government doesn't understand basic requirement for classified information either. Hard drives collected from SCIF say whether they are discoverable.
Judge Lind: Are they controlled by the Department of Defense?
Coombs (Defense): Yes. If they don't want to turn over...
Coombs cites case law and argument.
Coombs (Defense): They say looking for production and not discovery. The Government doesn't do that because they are taking the Constitution...Article 46...access to witnesses in evidence...statutory requirements. We have been in discovery for two years.
Coombs (Defense): The discovery rule shall provide this. It is open, broad, and liberal. How can you say "don't have specificity", and then say it's "not relevant"? They say Department of State (DoS) has not completed damage assessment, but THAT is not their obligation. If it is there and you asked for it... They say we never finish damage assessment. Government is just avoiding discovery obligation. Third page 12 to 14..."We are unaware of forensic evidence." They never state that they looked. The Government continues to hide behind complexity and working with multiple agencies. We cannot overlook impact that has had. The Government doesn't understand Brady . The Government doesn't understand RCM 701(a)(2). And, the Government doesn't seem to be doing... They say in Case Management Order is gonna take 45 to 60 days with the Original Classification Authorities (OCAs) to do classification review. That should have been done a long time ago. They should be coordinating with the OCAs. Defense is asking, "Do you have it?" They are actually still at the stage where they have to go back to agency, which they roughly estimate; and then they have to determine if their is a privilege. If the Government understood how classified information worked...could give something that should have been done in advance. I don't know what the Government could say. They then say we provided over X thousand pages of discovery. It is not about amount...
Coombs cites case law
Coombs (Defense): Yesterday, at 7:35 p.m., Government says we notified civilian counsel that we dropped a CD with discovery. Look at the timing...impeachment info [Refers to information that questions credibility of witness] on Adrian Lamo...twelve pages...
Judge Lind: Please remember I just joined this case. Who is Adrian Lamo...?
Coombs (Defense): RCM 701(f) is production. 701 isn't just classified. Doesn't mandate that you actually give this.
There is a discussion regarding the Rules for Court Martial and the Manual of Court Martial
Coombs (Defense): Two years into this case... Take the Encase forensic images. They have given classified info. They have given images with my clients user profile on it. Our computer forensic experts need at least 3 months, and within my motion, I ask that they preserve it. Army Computer Crimes investigative Unit (CCIU) asked for these images to be preserved. And, so they spotted this as a source of info, but again the information, they cite RCM 703, namely asking is there purpose for that and that is a problem.
Judge Lind: Coombs a few questions has to be material...FOIA [Freedom of Information Act] request...what evidence do I have?
Coombs (Defense): Going to go into ex parte issues... What I specifically requested you cannot ignore... Material means "helpful" and it doesn't have to be "helpful"...
Judge Lind: US v. Graner does not say that.... What did the Government give you regarding FOIA [Freedom of Information Act]?
Coombs (Defense): Any FOIA requests for that same information...helpful [regards July 2010 Apache air strike video] ...is that it would assist in our theory and presentation of the case...could go into detail...but ex parte... And, I asked the court... Even the Granercase... Look at the requirement and standards...
Judge Lind: That means everything is discoverable...
Coombs (Defense): When you go to a specifically requested item...disclose to the Defense Brady standard...
There is a discussion between David Coombs and Judge Lind regarding case law for discovery versus production of evidence, then there is an exchange with Coombs over the idea of "custody and control" regarding the interagency investigation as it relates to this case and discovery.
Coombs (Defense): If they give us the discovery that we have been asking for, we would need six months to review, and for two years they have been ruling incorrectly...
Judge Lind: FOIA Specification 2 of Charge II... RCM 701(g) discussion...how favorable to Defense?
Coombs (Defense): No.
Judge Lind: This evidence is relevant, material, or favorable. Production of the standpoint to compel...then you need to show me...what is that with the FOIA [Freedom of Information Act] requests.
Prosecution: We produced the the FOIA [Freedom of Information Act] requests.
Coombs (Defense): This is something we have been asking for.
Judge Lind: The Government is telling me they gave it to you.
Judge Lind: Government says Quantico video doesn't exist. [NB 16 February 2012 Defense Motion to Compel Discovery on says, "The Government produced the Quantico video of Pfc. Manning being ordered to surrender his clothing but not the video of the subsequent interrogation by CW4 James Averhart Quantico Brig Commander"].
Coombs (Defense): How my client was treated, we believe the relevancy. Does not exhaust. We believe it does exist. Being video taped at the time this was happened. Government says we were provided two video, but we were not provided the correct videos.
Judge Lind: Now I don't have any evidence.
Coombs (Defense): We can provide evidence your Honor...
Captain John Haberland spokesman for the Military District of Washington (MDW) said that defense meant that Pfc. Manning would be taking the stand in this particular instance.
Judge Lind: I can't order something to be produced that the Government says doesn't exists.
The matter is put for later review by the presiding Judge.
Judge Lind: Encase forensic images relevance materiality?
Coombs (Defense): Materiality in this case means "helpful". These other computers or the computers of other 35 Foxes. It is a common practice to supplement machines with other programs. During the Article 32, witness testimony said that they added mIRC chat, which was unauthorized. But also added other software. A common practice to add various programs that were not authorized that were considered command mission essential and Wget was one of them. So the program would be found on other computers that did not have.
Judge Lind: Now what evidence do I have of that...?
Coombs (Defense): Your Honor again, it would it be helpful to the Defense...various witnesses said they aded mIRC chat... Mr. Milliman is a D6A. He [Milliman] would say that mIRC was unauthorized, but again here this is not a relevancy of having the information be admission able. Having these Encase images would be helpful to verify. We believe it would be common to see Wget as an executable file. Not added as a software. Like you don't need user authorization. He had authorization to put it would be direct defense to the charge...
Judge Lind: That program and other programs?
Coombs (Defense): Done by direction of S2 and OIC [Officer in Charge]...E6 and does...mission essential... Milliman says that is common.
Judge Lind: Can I have a transcript?
Coombs (Defense): There is no transcript.
Judge Lind: Summary transcript.
Coombs (Defense): Doesn't exist.
Judge Lind: I am willing to listen to the tapes.
Coombs (Defense): That would be fine, your Honor.
Judge Lind: (to prosecution) Do you dispute this testimony?
Prosecution (Fein): Yes.
Fein (Prosecution) argues that the authorization came from the chain of command, not evidence of software on computers.
Judge Lind: I'll listen to it [audio recording of the testimony of Jason Allen Milliman Contractor].
Coombs (Defense): Again, Encase images...even if those Encase didn't have mIRC chat, then this would be helpful to defense. Again, 701(a)(2) trial counsel. Other people had added mIRC chat...
Judge Lind: What is mIRC chat...?
Judge Lind: From when to when?
Coombs (Defense): October 2009 to May 2010.
Judge Lind: Approximately 20 to 30 computers?
Coombs (Defense): Yes.
Judge Lind: Anything else with the Encase forensic images?
Judge Lind: Let's move onto damage assessments. Let's go through each article you had had. Let's go through relevance and materiality.
Coombs (Defense): What would be "helpful" to have those damage assessments to know what they say?
Judge Lind: Why?
Coombs (Defense): Minimal...helpful to Defense on merits. If it is helpful to prove information could cause damage. And, we cite it within our motion. They are not determined that, that element of satisfied. So the Government would probably do thorough...and Official Classification Authority (OCA) of the damage assessment. Position from our expert could not caused damage. So then you would have opinion. Relevant if presented to a panel. You have dueling experts. But you have a damage assessment done by the Original Classification Authority (OCA). Risks associated with that information.
Coombs (Defense): [Robert] Gates [former Secretary of Defense] indicates no sources and methods were compromised from SigAct release. You have clearly Brady over the hurdle. Helpful to preparation of defense. And, again I don't want to beat a dead horse. The issue at this point is that this is an argument to compel discovery. If the Government understood what has been missed; what they asked for in their Case Management Order...they need 45 to 60 days. Equity orders and that is indicative a much larger failure of discovery. This so adversely prejudice my client there is really no way to fix that. And, again without hearing their reasons. Once I hear that a motion to dismiss or some other relief.
Judge Lind: Anything else?
Coombs (Defense): No.
Prosecution: We agree with Defense, but if its classified it pitfalls outside 706. We are required through Brady progeny to find exculpatory; search any information...and further under Gabriel (sp.). But exculpatory...701(a)(6) does not apply to classified information, and today is the first time we have been in front of a Judge.
Judge Lind: What is your authority regarding MRE 505 and RCM 701 ?
Prosecution: RCM 701. Information is not subject to disclosure...gives the Government the option to voluntarily disclose information...there is an unjust result...then the Government says we are not withholding Brady material...if it is unclassified...then absolutely...US Army Crimes Investigative Division (CID); Department of State Diplomatic Service (DSS); FBI [Federal Bureau of Investigation]...US has turned over the information...even some that is classified, including the Army [Criminal Investigation Command] (CID) case files. We asked DSS [Diplomatic Security Services] to turn over their files. FBI [Federal Bureau of Investigation] any material pertaining to accused, but if that information is classified requires MRE 505, and then we needed judge. MRE 505 void doesn't have gatekeeper function built in. When you are dealing with voluminous classified material, we can't respond to every request.
A discussion ensues as to standard for relevance required to disclose classified information.
Prosecution: Encase forensic images requested by Defense is within Department of Defense (DoD), but it is classified. Some factual showing for materiality total drives reason. The unit redeployed July 2010, and, pulled from the redeployment all computers with a user profile of Bradley Manning. Any of those drives they collected. Then the unit was free to discard and DX all the procedures post deployment any additional drives in September 2010. Defense request to preserve Encase was made in September 2011 when the unit was down range. Keeps all theater equipment. We notified Army CID, FBI [Federal Bureau of Investigation], and 2/10 Mountain. Identified 181 hard-drives. And out of those serial numbers 13 hard drives that were in the SCIF when the unit was deployed. CID had one other drive. We had not given to Defense because it is classified. Would have to be reviewed by OCA. Then authority granted to turn over based on if you rule it is relevant and necessary. Based on your ruling we will get the approval for MRE 505.
Judge Lind: Damage assessments?
Prosecution: As we have provided in Case Management Order...Government has provided as enclosure...as search and preserve...outside military authority and classified. If it is Brady we have to turn it over, adjudicate when we are going to litigate classified evidence....damage assessments themselves they are living documents...doesn't mean that that damage can't happen the next day. Defense has asked for four damage assessments... Department of State (DoS) has not completed damage assessment.
Judge Lind: Is that what you are asking...?
Coombs (Defense): No.
Prosecution: Department of State (DoS) has not completed. CIA [Central Intelligence Agency] and the WikiLeaks Task Force (WTF) have completed theirs, but they are classified outside Department of Defense (DoD) authority. Information Review Task Force (IRTF)...Defense Intelligence Agency (DIA) has completed damage but it is classified.
Judge Lind: DOJ [Department of Justice]?
Prosecution: Doesn't exists.
Judge Lind: Do you dispute that?
Coombs (Defense): If the Department of State (DoS) hasn't done anything...in review of information...was part of the later investigation since late 2009 time frame.
Judge Lind: Anything else?
Prosecution: FBI [Federal Bureau of Investigation]... Defense requested discovery... We do intend to and are ready to hand defense after we get a Protective Order...
Judge Lind: Gathered...?
Prosecution: Yes. Office of National Intelligence (ODNI) agency or department. In the event I looked a the proposal for six weeks. So that hasn't been done... So the US has maintained that it is not relevant.
Judge Lind: MRE 505(e)(1)...
Discussion of prosecution's theory of MRE 505 privilege related to classified information.
Judge Lind: Standard in MRE 505(f)...? Talks about relevant and necessary, but says nothing about sentencing?
Prosecution: I need a moment to review. The standard is higher under 505(i)(4)(D) because it is for use at trial.
Judge Lind: How do you get there...?
Prosecution: We are making a more liberal determination...if the Defense gives 505(h). We are only talking about the access to the defense to get the information.
Judge Lind: Anything else...?
Coombs (Defense): Government response clearly indicates they do not understand... They say it is classified then relevant and necessary. They say they provided plenty of classified information and that classified information trumps all Brady. That may be for the Brady aspect. That Brady standard, the other 90 pages. The information Defense would need is a fundamental precept, and discovery is done by Government under RCM 701. RCM 701 still controls Brady under RCM 701(a)(6). (a)(2) guidance control is classified. Then they have to go to correct procedure. Well Original Classification Authorities (OCA) is gonna invoke privilege. We understand requirements. We now are going to tell, your Honor, we are invoking privilege any of that in their reply motion. They try to piece meal, but the one clear factor... I think the damage assessment...they haven't even thought through the loops to get through the defense. We started this process in the 2010 time frame...over a year for this 45 to 60 days. The other aspect... Why did you set appellate for Brady the Government has so helplessly messed up that prejudiced my client. Defense is filing Motion to Dismiss all Charges with Prejudice based on Prosecutions messing up discovery so horribly.
Judge Lind: Who has the authority?
Coombs (Defense): Other problem...is that this is beyond two years under wrong standard.
Prosecution: Defense is relying on open file discovery rules. We were waiting to deal with a Judge for classified MRE 505(g)(?). We can disclose information, and that is the only information we are talking about, because it is classified.
Judge Lind: Motion to Compel Deposition.
Coombs (Defense): You have everything but [the letter] "c", in ex parte.
Judge Lind: Appellate Exhibit 15...are you talking about Reply or...?
Prosecution (Overgaard): No, M'am.
Coombs (Defense): Defense requested each [Original Classification Authorities] OCA's as an essential witnesses. They were improperly denied at the Article 32. Government impeded access. They were essential witnesses at Article 32 hearing, because for over a year trial was delayed on getting OCA determinations. Once we had that Article 32 began. We had to obtain OCA...vital.
Judge Lind: How so?
Coombs (Defense): Government doesn't recognize Diaz decision and Morrison decision..controlling on how matter is held...what procedures they needed to invoke...either knew or should have known could caused damage. So when you take a look at the OCA determinations. These were determinations to base privileges on, but also identify damage. We as defense should have access to those. If the OCA's can articulate why it would cause damage, then defense would like to cross examine, and should have been able to at the Article 32, rather than waiting for trial. These are things the Government fought hard for the presentation of their case. They cannot fight hard on one hand and not on the other.
We should have been able to have equal access. Second, we should have had access to them and the Article 32 Investigating Officer said they were relevant but were unavailable, and ruled that the cost outweighed their testimony. Two of the OCA were located at the Fort Meade, MD. So, when they made determinations, we should have equal access to them. They gave classification determination based upon evidence in this case. These witnesses were not even inquired if they could attend. Investigating Officer just took the Government's position that witnesses were unavailable. Again, we cannot bring these witnesses because they were too important. Investigating Officer says, "No reason to do deposition because they are available for trial."
Coombs then cites Chestnut, and goes through a list of all the requests denied.
So here we are now at the Pretrial stages, with a substantial pretrial right of Pfc. Manning. There can be no doubt it is vital of Government's case, then vital to the defense. We went to Government after second denial and asked, "Please give us contact info for civilian OCA's" Government said, "No." I said, "Can you please explain your response in light of Article 36?" They then said, "Sure." We waited a month...then nothing. Then it was a point of contact you would have to work through. Attachment "C" to our motion... You may have two requirements then another hurdle. We have to go through "regulations for the civilian witnesses" Specify, what we want to talk to them about. Then run it up the flag pole to see if granted...then after another added hurdle...at least one federal court...federal district case...Government came back...Touhey would apply if just Defense trying to reach out. I ask the Government to provide me with whatever requirement these OCA's would have.
Judge Lind: When did you ask?
Coombs (Defense): About two weeks ago with regards to civilian OCA to even have access to them. Each one of them: example, Captain James [Culky] (sp.), these are not the type of people you just pick up the phone and call. In my motion I say, these are interviews that are going to have to take place, based upon the subject matter, and defense will be forced travel.
Judge Lind: Telephone...?
Coombs (Defense): No telephone allowed.
Judge Lind: Secure line...?
Coombs (Defense): Also need documents. With the Department of State (DoS) OCA we need to take each of the 166 charge documents and talk about those documents. Has he seen anything...ask deposition for all OCA's...get done particular location in this general...Board 6 envisions. Clearly important witnesses related to charges.
Prosecution (Overgaard): The Investigating Officer ruled that significance did not outweigh difficulty.
Judge Lind: If defense request for trial...impediment?
Prosecution (Overgaard): No impediment...addressing specific arguments...standard at Article 32... Investigating Officer use the proper standard in Ledbetter... His reasons for determining...
Judge Lind: So, these witnesses...classification now or time at offense?
Prosecution (Overgaard): At time of classification. Executive Order 13526 specific individuals are authorized to do these classification reviews. So they are simply they have nothing to do with input. They are reviews if the document is classified based on an Executive Order.
Judge Lind: What is the Government's position regarding US v Diaz?
Prosecution (Overgaard): Defense cites...to talk about mens rea...18 USC 793(f)...willful...transmit or cause to be communicated...how to establish mens rea.
Overgaard (Prosecution) goes on to say that defense could have had telephonic, provided they were available. She says that defense had contact information. That these individuals were high ranking individuals, so coordination with individuals does take time. Overgaard says, initially, the Government states they were not witnesses, because these witnesses are not individuals, they are witnesses by position as OCAs.
Judge Lind: Why would position preclude...?
Prosecution (Overgaard): For efficiency purposes. The Government will get the contact info for all relevant individuals.
Prosecution (Fein): Centralized decision making... House keeping rules for court martial processes, means all Government officials are under special notice...to the Motion to Compel Discovery.
Judge Lind: So of all of the witnesses...the Department of Defense (DoD) witnesses doesn't apply...?
Prosecution (Fein): Those, Donegan [RADM Donegan, USCENTCOM], Schmidle [Lt. Gen. Robert E. Schmidle, Jr., U.S. Cyber Command deputy commander], Woods [Rear Adm. David B. Woods Commander, Joint Task Force Guantanamo], and two remaining OCAs ...they fall outside authority of Department of Defense. Touhey regulations, not a method...an administrative rule. Should the defense...we will champion. If you order depositions, they would follow house keeping rules. If that is the route they want to go...they prepare the request...after they submit the request...
Judge Lind: That involves two witnesses?
Prosecution (Fein): Not witnesses. Proponents.
Judge Lind: Anything else from either side...?
Coombs (Defense): No.
Judge Lind: Is there anything else that I need to address today, before we recess...?
A discussion occurs as to time of proceedings next day. Results in it being set one hour ahead at 10:00 a.m. following day.