Transcript | US v Pfc. Manning, Article 39(a) Session, 06/25/12

US v. Pfc. Manning is being conducted in de facto secrecy. For more information on the lack of public and press access to United States v. Pfc. Manning, visit the Center for Constitutional Rights, which filed a petition requesting the Army Court of Criminal Appeals (ACCA) "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 Military District of Washington (MDW) would not allow media and legal observers covering the June 25, 2012 Article 39(a) Session in US v Pfc. Manning to use computers during the legal proceedings. This transcript was taken by hand from the public gallery of the Court room at Fort Meade, Maryland. It, therefore, may contain omissions or errors.

  • Judge: Army Col. Denise Lind

  • Prosecution: Major Ashden Fein, Captain Joe Morrow, Captain Angel Overgaard, Captain Hunter Whyte

  • Defense: Mr. David Coombs, Captain Joshua Tooman, Major Thomas Hurley

See also an account of events that led myself and two other journalists - one from the Associated Press and the other from Courthouse News to be threatened by MDW with arrest in the media center at Fort Meade, MD.

There were ll individuals (members of the public and press) in attendance at the Article 39(a) session.

ALL RISE

Judge Lind: Please be seated. This Article 39(a) Session is called to order.

Prosecution (Fein): ...Captain [Angel] Overgaard is absent. Captain [sounds like Leigh or Blake] is also absent.

Judge Lind explains that she has called this additional Article 39(a) Session on June 25, 2012 and scheduled future additional one day Article 39(a) Sessions every six weeks, thereby adjusting the then Court calendar in order to address issues that arise for the Court record.

Judge Lind begins a recitation for the Court record by list of appellate exhibits, including defense and Government motions and Court rulings since the last Article 39(a) Session on June 8, 2012.

Judge Lind: ...appellate exhibits between last Article 39(a) Session and now, pursuant to motions filed. May I see appellate exhibits [concerning] the Court granting the Government's request regarding Department of State documents and evidence?

Judge Lind reads the Court ruling on the Government motion requesting a Court order granting 30 days delay searching and reporting to Court on the Defense addendum to their motion to compel discovery No. 2 pertaining to Department of State records.

Judge Lind: On 8 June [2012], following recess [of the Court at the last Article 39(a) Session the same day], the Court ruled on the Government motion requesting a Court order granting the Government 30 days delay for looking at the Department of State records [pertaining to] the Defense addendum to their motion to compel discovery no. 2 [that was filed for discovery related to the testimony of the three Department of State witnesses at the 7 June 2012 Article 39(a) Sessions]. Defense did not object [to the Government's motion requesting 30 days delay for searching for discovery records and reporting back to Court.]

Judge Lind reads her ruling which contains an account of the defense addendum to their motion to compel discovery no. 2 related to the testimony of three Department of State witnesses at the 7 June 2012 Article 39(a) Sessions

According to notes taken by Zack Pesavento the items referenced in the the defense addendum to their motion to compel discovery no. 2 regarding discovery items related to the testimony of the three Department of State witnesses are:

  1. Written assessments by the Chiefs of Mission in August 2011
  2. WikiLeaks Working Group situation reports
  3. Written agenda from the DOS "Mitigation" Team
  4. A DOS "Persons at Risk" Working Group report
  5. A DOS "Persons at Risk" Working Group matrix
  6. Guidance issued by DOS to embassies
  7. Information from the Office of the National Counter Intelligence Executive (ONCIX) regarding a DOS impact assessment
  8. DOS reports to Congress in December 2010

Judge Lind: On 7 June [2012] the Government requested 30 days delay regarding Department of State [records] referenced in their [addendum to their motion to compel discovery no. 2].

Judge Lind continues to reads her ruling.

Judge Lind: ...by 8 July 2012, Government will provide a record of files [from the Department of State].

Pesavento notes that the Judge ordered "The government will search through all of the materials outlined above. By July 9, the government will notify the court whether the records exist, and if necessary, file their responses."

The Court then addresses another addendum to the defense's motion to compel discovery no. 2 containing a request for additional witnesses from Office of the National Counterintelligence Executive (ONCIX), Department of Homeland Security (DHS), and the Federal Bureau of Investigation (FBI).

Judge Lind: ...addendum to defense motion to compel discovery no. 2. On 18 June [2012] defense filed [an] addendum requesting [additional] witnesses [to their motion to compel discovery no. 2]. Mr. Coombs [can you] set forth [for the Court record] ?

Defense (Coombs): Yes, M'am. Defense submitted two requests for a Court order [for] witnesses from ONCIX [Office of the National Counterintelligence Executive], DHS [Department of Homeland Security], and the FBI [Federal Bureau of Investigation].

Pesavento notes "[Coombs] stated that the defense had submitted two requests for witnesses. He began by talking about a recent one that was related to a request for witnesses from ONCIX, FBI, and DHS. Based on the court's denial of the request, the defense submitted a request to reconsider."

...reconsideration needed in order to clarify when the Government became aware of the fact [that ONCIX (Office of the National Counterintelligence Executive) had a damage assessment]. [That is why defense is requesting a] witness from ONCIX [Office of the National Counterintelligence Executive]. [The defense is requesting witnesses from] the FBI and DHS [in order to determine when the Government] became aware of [those agencies'] impact statements [to see if the Government's] statements comport with the knowledge that they have...when they say they knew certain things...became aware of certain information. Clearly, the Government knew ONCIX had something. So, [it is] important to lay the groundwork to what they...represented to the Court.

Judge Lind: Government...address?

Prosecution (Fein): [Witnesses] not necessary for...due diligence and the timeliness [of the request]...

Judge Lind then recites the appellate exhibit numbers related to the defense addendum to their motion to compel discovery no. 2 requesting witnesses from Office of the National Counterintelligence Executive (ONCIX), Department of Homeland Security (DHS), and the Federal Bureau of Investigation (FBI).

Judge Lind: [On] 18 June 2012, [defense filed and a second addendum to their motion to compel discovery no. 2 requesting witnesses from Office of the National Counterintelligence Executive (ONCIX), Department of Homeland Security (DHS), and the Federal Bureau of Investigation (FBI)] Appellate exhibit 152. Can I see the Court orders? ... We will identify the orders. Court denied the [addendum no. 2 to their motion to compel discovery no. requesting witnesses from Office of the National Counterintelligence Executive (ONCIX), Department of Homeland Security (DHS), and the Federal Bureau of Investigation (FBI) saying witnesses ruling that they] were not relevant to due diligence. Defense filed a motion for reconsideration. Appellate exhibit 153. Prosecution response is appellate exhibit 154. Court ruling denying reconsideration is appellate exhibit 155.

In between the last [Article 39(a) Session on June 8, 2012] and this one [today] Prosecution [was going to] file a motion [related to RCM (Rules for Court Martial)] 404(b) [concerning] uncharged misconduct. [Pesavento notes this refers to the prosecution's motion concerning the "rule of lenity".] Government wanted to delay [their] filing [of that motion] until after instructions [Pesavento notes "at the July hearings."]

Judge Lind continues: Defense did not object.

Pesavento notes, the Court "accepted the government's request."

Judge Lind continues: Parties and I will be addressing [that issue].

Pesavento notes that the Court's ruling on the Government's lenity order was appellate exhibit 149. The transcriber here, however, noted that the appellate exhibit was 129, filed on 18 June 2012.

Judge Lind continues: The Court also sent [an] email with respect to [the] Article 13 and Speedy Trial [motions by defense]. [The Court's email concerned an] exchange of witness [lists and whether the Government and defense's dispute over witnesses] can be resolved.

[The] Court had also asked [the parties] to file targeted briefs [on the] absence of actual harm [being precluded from the trial on the merits, which the Government had moved the Court to consider]. [Those targeted briefs by the parties are] Prosecution's [targeted brief on the absence of actual harm being precluded from the trial on the merits] is appellate exhibit 158, filed on 21 June 2012. Defense's [targeted brief on the absence of actual harm being precluded from the trial on the merits] is appellate exhibit 164, filed 21 June 2012. These will be on the Court calendar for the Article 39(a) Session [On 19 July 2012, oral arguments were given by trial counsel at the Article 39(a) Session.].

Finally the Court has issued two rulings. [Court ruling on the] defense motion to compel no. 2 [is] appellate exhibit 147 [filed on] 22 June [2012]. [Court ruling] on the ex parte review of the supplement for the [CIA] WikiLeaks Task Force [is] appellate exhibit 146 [filed on] 22 June 2012.

Judge Lind recited her Court Ruling on the defense motion to compel no. 2.

[BEGIN COURT RULING ON DEFENSE MOTION TO COMPEL DISCOVERY NO. 2 ]

Judge Lind: [On] 10 May 2012 [defense filed their] motion to compel discovery no. 2 [related to RCM (Rules for Court Martial)] 702 and 701(a)(6). [On] 2 June [2012] defense [filed a motion] for modified relief. [On] 7 June [2012] defense [filed] addendum no. 1 [to their motion to compel discovery no. 2]. [On] 18 June [2012 defense filed] addendum no. 2 [to their motion to compel discovery no. 2]. [On] 31 May [2012 the Government provided notice to the Court and the Defense that] ONCIX [had a draft damage assessment. Along with the Government's notice, it provided a copy of its 24 May 2012 letter to ONCIX and the reply by ONCIX on 30 May 2012]. [On] 2 June [2012] defense responded [to Government's notice on ONCIX [Office of the National Counterintelligence Executive]. [Defense is requesting the] full investigative files from [Army] CID, DIA, DISA, USCENTCOM, and SOUTHCOM [related to PFC Manning, WikiLeaks, and or the damage occasioned by the alleged leaks be produced to the Defense under R.C.M. 701(a)(2) and 701(a)(6)].

[Defense is also requesting the] HQDA [file related to the 17 April 2012 request] be produced under RCM [Rules for Court Martial] 701(a)(2) and 701(a)(6).

[Defense is also requesting] FBI, DSS, DOS, DOJ, Government Agency, ODNI, and ONCIX files in relation to Pfc. Manning and or WikiLeaks be produced to the Defense, or alternatively, that they be produced for in camera review to determine whether the evidence is discoverable under RCM 701(a)(2) as being material to the preparation of the defense.

[If the Court concludes that the files of the above agencies are not within the possession, custody, or control of military authorities, the Defense still requests that the Court order production of the entire file under the "relevant and necessary" standard under RCM 703(f).]

[missed...]

... [Defense argues that the Government has submitted to defense] heavily redacted FBI files [pertaining to Pfc. Manning]...

...[On 31 May 2012 the Government notified the Court and Defense that the FBI had conducted an impact statement for which the prosecution intends to file] an ex parte motion [under MRE 505(g)(2)]...

...The Government says it has disclosed [limited files from joint investigation with DSS (Department of State Diplomatic Security Services).] [The defense argues that ] the discovery provided [by the Government deals only with the item charged in Specification 14 of Charge II.] The Government has not turned over any DSS files or investigation dealing with Specifications 12 or 13 of Charge II. [The Defense moves for the full DSS file as it pertains to the accused, WikiLeaks and/or the alleged leaks.]

...Department of State Chiefs of Mission...written submissions

...WikiLeaks Working Group from its time of full operation between 28 November and 17 December 2010

...WikiLeaks Mitigation Team documents... [Pesavento notes that Judge Lind said "efforts focused on counter-terror."]

...WikiLeaks Persons at Risk... [including] Department of State guidance to all embassies...

...Information [from the Department of State] disclosed to ONCIX [which according to Pesavento related to the August 2011 Department of State damage assessment, although, this is not certain. The Department of State WikiLeaks Mitigation Team was established by the Executive Office of Management and Budget and administered by ONCIX and ISOO. ONCIX was drafting a damage assessment. The Department of State had another draft damage assessment dated August 2011.]...

...Department of State reporting to Congress...[including Ambassador Kennedy congressional testimony on March 10, 2011 to the Senate Committee on Homeland Security and Governmental Reform. The Department of State 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).]

On 8 June 2012 Court granted Government [thirty days]...9 July the Government will notify the court whether the records exist if such records exist. Defense can file] supplemental discovery [motions] for those records that do exist.

...On 31 May 2012 the Government provided notice to the Court and the Defense that ONCIX had a draft damage assessment. Along with the Government's notice, it provided a copy of its 24 May 2012 letter to ONCIX and the reply by ONCIX on 30 May 2012. On 18 June 2012 defense filed addendum no. 2 to their motion to compel discovery no. 2. On 2 June 2012 defense responded to Government's notice on ONCIX [Office of the National Counterintelligence Executive]... [Defense asserts the Government has provided the defense with 12 pages of Brady material taken from an investigation working document review of the Office of the National Counterintelligence Executive [ONCIX], Office of the Director of National Intelligence [ODNI], the Information Review Task Force [IRTF], Defense Intelligence Agency [DIA]]...[the finalized version of the ONCIX damage assessment was set for some time in July 2012]...

...[Defense moves the Court to order] the Government produce Brady materials [from certain identified agencies]...

...Defense is also requesting the HQDA [file related to the 17 April 2012 request be produced under RCM [Rules for Court Martial] 701(a)(2) and 701(a)(6)]...

...Full investigative files by CID, DIA, DISA, and CENTCOM/SOUTHCOM related to PFC Manning, WikiLeaks, and/or the damage occasioned by the alleged leaks be produced to the Defense under R.C.M. 701(a)(2). Further, that the Headquarters Department of the Army (HQDA) file related to the l7 April 2012 request be produced under RCM 70l (a)(2) and 701(a)(6)...

...The Government produce all evidence intended for use in the prosecution case-in-chief at trial obtained from DIA, DISA, CENTCOM/SOUTHCOM, FBI, DSS, DOS, DOJ, Government Agency, ODNI, ONCIX and any aggravation evidence that it intends to introduce during sentencing from the above named organizations...

...The results of any investigation or review concerning the alleged leaks in this case by Mr. Russell Travers, National Security Staff s Senior Advisor for Information Access and Security Policy...

...Any report or recommendation concerning the alleged leaks in this case by Chairman Chuck Hagel or any other member of the Intelligence Advisory Board...

...The results of any inquiry and testimony taken by House of Representative Oversight Committee led by Representative Darrell Issa...

...The Government state with specificity the steps it has taken to comply with its requirements under R.C.M . 701(a)(6)...

The Law.

Due process clause; ...discovery; Article 46 [Uniform Code of Military Justice, Opportunity to Obtain Witnesses and Other Evidence]; ...equal opportunity; RCM 701...broader discovery, RCM 701...broader discovery...US v. Williams; US v. Girouard, 70 MJ 5; US v. Trtgueros, 69 MJ 604; RCM 701 (a)(6) "Evidence favorable to the defense. The trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence known to the trial counsel which reasonably tends to: (A) Negate the guilt of the accused of an offense charged; (B) Reduce the degree of guilt of the accused of an offense charged; or (C) Reduce the punishment."; RCM 701(a)(2) ..."(A ) Any books, papers, documents, photographs, tangible objects, buildings, or places, or copies of portions thereof, which are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial, or were obtained from or belong to the accused..."; RCM 701...discoverable information...US v. Luke

3.) ...Government has due diligence...Brady and RCM 701 obligation...beyond own files...participated in [missed]...US v Williams

Judge Lind reads her interpretation of Williams

4.) ...discovery obligation under RCM 701(a)(2)...unless in the possession...case in chief... [Transcriber noted Prosecution must...under Williams 1102.8, but is not sure what this number references.]

5.) ...evidence maintained by...see analysis subsection (e)(1) [or (4)]...this defense is not entitled [to information] not possessed...or to search out and look for information" [US v. Killigrew ?]

6.) ...burden on defense under RCM 703(f)...can be relevant, pursuant to [RCM ?]...

7.) ...Pfc. Manning....military authority turn over obviously material does not mean they have to search...[missed]

20 July 2012...files under military...seek out and identify...investigative files, damage assessments, mitigation...

...any custodian will seek MRE 505(g)(2) for classified information...seeks in camera privately in

Pesavento notes, "She noted that the government has a due diligence duty under Brady and Article [sic, RCM] 701 with regards to evidence in three key areas. This requirement is generally limited to information contained within a law enforcement investigation. However, due diligence requirements also extend to agencies closely aligned with the prosecuting agency. Furthermore, specified types of information (typically including specific requests by the defense) may also be comprised within this realm. Outer parameters for the scope of potential evidence, said the judge, are typically dealt with on a case-by-case basis. She noted that the burden is on the defense with regards to the production of evidence that is outside the control of the government. This type of information can also be considered "relevant and necessary" under Article [sic, RCM] 701.

Pesavento also notes, "Judge Lind concluded that prosecution counsel must turn over material that is "obviously relevant" to the defense when they come across it. The defense, meanwhile, is responsible for making requests to search through things that are outside the scope of the Brady requirements.

Judge Lind continues: ...Government will disclose to defense any investigation, damage assessment, mitigation [related to the WikiLeaks disclosures] or submit to the Court for [limited disclosure MRE 505(g)(2) in camera review ] by 25 July 2012... [Pesavento notes that Judge Lind further ruled that "any files for which there are no claims of privilege must be submitted to the defense or to the court for an in camera review by August 3."]

...Department of Justice...alleged leaks during investigation...not relevant...under [RCM 701(f)(3). Pesavento notes that Judge Lind said, "defense has not demonstrated their relevance to the case."]

...FBI and DSS...government said disclosed entire investigative files...but will review one additional FBI file and an [FBI] impact statement... [Judge Lind ordered the Government to notify the Court about any claimed privilege regarding the] FBI investigative file and impact statement...by 25 July 2012. Pesavento notes that Judge Lind ordered the Government to disclose any materials without claims of privilege to the defense or to the court for an in camera review by 3 August 2012]...

...ODNI...ONCIX...Government stated not aligned... [See Appellate Exhibit XXXVI at I I, paras. 4, 8, where the Court found in its ruling that ONCIX was a closely aligned agency. Pesavento notes, that Judge Lind said, "the [G]overnment has not asked to reconsider the court's decision." ]

...CIA damage assessment...[Court will rule on this in a ] separate appellate [exhibit]...

...Department of State...30 days to respond...[Court ordered notice or disclosure] by 9 July 2012 [per order above]... [Pesavento notes, "the court has agreed to a 30 day delay request from the prosecution, moving the deadline until July 9."]

...17 April 2012 HQDA memorandum... [Pesavento notes, "the government alleges that there is no particular file referenced by the communication. However, the judge noted, this dispute would be addressed later in today's hearing."]

...disclose by 3 August...[anything the] Government intends to use for merits or sentencing...

...[National Security Staff] Interagency Committee Review...[and] President's Intelligence Advisory Board...defense moves for Brady...not aligned [with the prosecution]...not readily available...too attenuated...Government advised that it would [voluntarily] search for Brady from the President's Intelligence Advisory Board. Court does not compel [that] Brady search.

...[Court ruling on Defense motion to compel discovery no. 2] granted in part. Ruled on 22 June 2012.

[END COURT RULING ON DEFENSE MOTION TO COMPEL DISCOVERY NO. 2 ]

Next issue discussed in Court was the 17 April 2012 HQDA memo. The defense moved to compel "the Headquarters Department of the Army (HQDA) file related to the l7 April 2012 request be produced under R.C.M.70l (a)(2) and 701(a)(6)," and "the documents responsive the HQDA request." Further, defense argued in its reply to the prosecution response to supplement to defense motion to compel discovery no. 2, "Much like the HQDA memo, if the Government has not already performed a Brady search in respect of files in its own backyard, it cannot be trusted to have diligently searched the files of other organizations. The Defense believes that there are only two possible explanations for this utter lack of diligence: a) the Government has not yet, after two years, searched its own files for some inexplicable reason; b) the Government already searched its own files using the wrong Brady standard; now that the Court clarified for the Government what is Brady obligations entail, the Government is going back and secretly doing the "re-review" that the Defense said was necessary.' Either way. the Government's conduct is inexcusable."

Judge Lind: Issues...17 April 2012 files... Government?

Prosecution (Fein): ...confirm...[HQDA] does not contain centralized file for military litigation. [Pesavento notes that Fein stressed, that "'this was a staffing letter' that tasked heads of various Army offices to collect evidence and provide materials to the prosecution." Pesavento also notes, that Fein said, "were then accumulated and given to the prosecution." According to this transcriber Fein added that the information included] two Army CID investigations, three military investigations, and three 15-6 investigations. ...staffing to collect to produce within prosecution...

Judge Lind: Was it contained in central files? Was it accumulated?

Prosecution (Fein): PowerPoint, working papers, public affair guidelines, [documents concerning] systems affected or not effected, staff meeting notes, official reports... [Pesavento notes "'SIP threats,' and reports on mitigation efforts in each department. Fein also alleged that the defense already had a copy of responses regarding the '15-6′s' (pertaining to a CID investigation).]

Judge Lind: [Those files] come in response [to the 17 April 2012 HQDA memo. Pesavento adds "or the prosecution's initial request from over a year earlier"]...?

Prosecution (Fein): Yes...That tasker went out...because...no centralized file. [Pesavento adds "Once that went out, the materials were bound and given to the prosecution. He noted that the Office of the Judge Advocate General (OTJAG) was the 'conduit' from the Army to the prosecution."]

Judge Lind: Is there a file pertaining to the request...?

Prosecution (Fein): No, your Honor. No centralized information was compiled...multiple CDs were what was given to prosecution. We have it to review.

Judge Lind: [Transcriber noted the Judge's response as "???"]

Defense (Coombs): ...appellate exhibit 96 [Defense Motion to Compel Discovery no.2]...attachment A... Form 5-Key...original letter...very first page...Lt. Col. Troy...what they requested... [Attachment A refers to the 17 April 2012 HQDA memo "The Government requested the following: '...any documents or files with material pertaining to: any type of investigation; working groups; resources provided to aid in rectifying an alleged compromise of governrnent [sic.] information; damage assessments of the alleged compromise; or the consideration of any remedial measures in response to the alleged activities of PFC Manning and WikiLeaks']

Judge Lind: Anything else...?

Pesavento notes, Fein says, "'it was confirmed to me yesterday that there was an original letter sent to DOD.' [Fein] said this was Lt. Gen. Troy's memo. Judge Lind asked Major Fein whether the defense had a copy of this letter. Fein responded that the defense hasn't asked for it. He added that "we also have received documents from the Department of the Army that are separate from DOD" materials."

Defense (Coombs): The Department of Defense? We might not have asked for it because we didn't know about it...only way we know that nothing done for nine months...Lt. Col. Troy... There is a file now of this info... Lt. Col. Troy...instructional guidance to compiled... ...to what extent is there a file? What is the size ?

Judge Lind: File itself...the 17 April 2012 HQDA memo [and, Pesavento notes, the DoD letter] already applies to motion to compel [under] 701 (a)(2) and 701(a)(6).

The Government is going to be searching files accordingly?

Prosecution (Fein): [Pesavento notes that Fein responds, "Yes, your honor."]

Defense (Coombs): ...appellate exhibit 171. Clarification...[regarding] due diligence.

Judge Lind: Got anything else?

Defense (Coombs): ...appellate exhibit 171, request for clarification of appellate exhibit 146, paragraph seven, page five. Defense asked [for clarification of statements made by the Government about with regards to what is] 'within [their] possession, custody, and control' material to the preparation of the defense. Initial exchange between...as we have cited from record of the trial. Major Fein has an [added] requirement [Pesavento notes "that [Fein thought he] only needed to produce materials related to specific requests by the defense." ]. Court corrected. Court asked if they were going to turn over [Pesavento "any materials that are obviously beneficial to the defense, regardless of how they came across them. Coombs said that the government later went on to re-state their 'specific request standard'"]. ...clarification based on 5 different types...

  • 1.) This order does not apply retrospectively, Government has to look for 701(a)(2). [Pesavento notes Coombs says, "If they see something that's material to the preparation of the defense, they have to turn it over."]
  • 2.) [Government] trying to say they have done 701(a)(2) review...[but not] under correct standard.
  • 3.) Government alluded to that they had been searching 701(a)(2) but had not received specific requests. Government talked [about Pesavento notes "some sort of database"]...does the Government have this? Amount? And, whether or not they are holding on to that?
  • 4.) ...applies to all files... [Pesavento notes Coombs says, " If the government has relevant files, then regardless of the context of how they came across them, they have an obligation to hand them over." ]
  • 5.) What is material to the preparation of defense? What information would be helpful to the defense?

...requested clarification filed on 23 June 2012, appellate exhibit 171.

Judge Lind: ...Government?

Prosecution (Fein): One moment. (pause)

Pesavento notes that Fein says, "Yes. There seems to be some confusion on what is discoverable...the Government is ready to act on the Court's order."

1.) ...[must search] retroactively and prospectively...

2.) [Pesavento notes that Fein "added that they keep material separated between what is discoverable and what is not, down to the level of individual documents. He then claimed that the government has provided all materials that are obviously "]

3.) ...[kept a] log of information...we do know what has been produced...if the Court order changes...

4.) Pesavento notes that Fein "then claimed that the government has provided all materials that are obviously needed for the defense."

Judge Lind: Do you have my order? What's your understanding of your obligations now?

[Pesavento notes that Fein says "the government knows that it is required to turn over any materials that would be obviously beneficial to the defense." Fein reads paragraph two of the Court's order out loud.

...

[Pesavento notes

Judge Lind says "how we were returning to the same circular arguments as before."]

Prosecution (Fein): ...confusion as to what is material? ...with the case law...US v Meadows 42 MJ 132 CAAF...as this rule is only triggered by a defense request...

Judge Lind: Going to give me the case law?

Prosecution (Fein): Yes. After this...we will retroactively go back an review under RCM 701(a)(2). Court relies on obviously discoverable and material 701(a)(6). Pesavento notes

, "The government's position, [Fein] explained, is that this order only applies to requirements under RCM 701 (a)(6), and not 701(a)(2)."

5.) [Pesavento notes Fein says, "absent specific requests by the defense outlining what is considered to be 'material' the government will retroactively go back and look at the evidence as ordered."

Defense (Coombs): ...doesn't appear he understands RCM 701(a)(2)..."Boy, if I were defense counsel [I sure would want to see this." Pesavento notes that the Government is stressing the word "obviously" in the Court phrase "obviously material."] Government wants to stress specificity, but when you talk about RCM 701(a)(2) you have to turn that over to defense. [Pesavento notes Coombs says, "There's 'no "obvious" standard'"..."The standard is simply: 'Is it relevant and helpful to the defense?'"] ...Government wants to wait for a specific request...defense believes Government [Pesavento "taking definitions of words and stretching their meanings to avoid their obligations"]...'we [Government] don't think this is material' if it is nothing they [defense] request...if we know there is information [Pesavento notes Coombs saying that the Government, then "choose not to look there in order to avoid turning over the material."] ... That is not how discovery works. Even at this late date [Pesavento notes Coombs says "Major Fein was trying to litigate this notice issue."]

Prosecution (Fein): "We're relying on what we see in the case law with regards to the threshold requirements...a request...then we have to default to 'obvious' rules...obviously discoverable.

Judge Lind: Court has this under advisement.

...

Judge Lind continues: ...due diligence...Government provided email...[filed a classified 505(g)(2) motion for limited disclosures] substitutions...[for the] FBI impact statement. [Government has filed] a classified and an un-classified, redacted motion.

Judge Lind then mentions DIA IRTF, & CIA WTF Reports. It is not certain what this refers to from transcriber's notes, however, it most likely refers to the Court Ruling Government Motion for Leave responding to Def Motion Requiring Non Ex Parte Filings by the Government Motion for Court 505(g)(2) review of DIA IRTF Final Report & CIA WTF Report. Pesavento notes that Major Fein said the Government's "relevant disclosure was completed on June 22."

Judge Lind continues: Government was going to file a protective order?

Prosecution (Fein): ...that is appellate exhibit 163...

Defense (Coombs): What Major Fein said about RCM 701(a)(2). Defense doesn't understand 'thresh hold requirement'.

Judge Lind: Aren't they asking whether they have to go back and look for additional files?

Defense (Coombs): RCM 701(a)(2)...'material'...no additional requirement. [Pesavento notes that Coombs says, "As long as his request isn't adding additional specificity requirements, the defense doesn't object."] Do they have a 701(a)(2) file?

...

Prosecution (Fein): Government does not have a hold file...

Defense (Coombs): ...helpful to defense under RCm 701(a)(2)

Prosecution (Fein): [Issue is] what is in the prosecution's files. [Pesavento notes Fein adds, "The issue is whether we should go search for additional material."] ...if the rule is for open file discovery only pertained [Pesavento notes Fein adds that "pertained to the government's own files, then there is no objection." Fein also says, "defense is arguing that every document and electronic file in the United States government is subject to this discovery obligation."]... anything at DIA, CENTCOM...these aren't for prosecutors files. Except for three items for MRE 505(g)(2) request that we intend to use...

Defense (Coombs): ...if they have something that they look through...you got it and you are looking at it..you have to hand over...not confusing with RCM 701(a)(6)...not asking to conduct search. They're saying 'we don't need to hand it over because it's not in our possession, custody, and control.'"

Judge Lind: [to prosecution] Let me see you case. I will take under advisement. Ready to consider that.

Prosecution (Fein): Yes, your Honor.

Due diligence arguments are next.

Defense (Coombs): ...due diligence argument...largely [Medina ?] last motions hearing to request the government to detail Brady. Government requested additional two weeks to file a response to due diligence...[The Government says] we aren't going to file orders unless the Court orders us to say this is what we did.

Look at issues [related to the] 17 April 2012 HQDA... [Pesavento notes

that Coombs said, "the government claims they now have three or four disks that they will now look through."] [The Government] didn't [explain] ...where they received the disks and [Pesavento notes, Coombs says, "why they never followed up on their request from over a year ago."] ...that simple fact Brady search and [the Government] hasn't been tracking is problematic...let us see what you are doing. If they got what they wanted...to file ex parte...if they haven't been tracking at HQDA.

...[regarding] Department of State. [The Government] said they looked at this until recently. What they are basically saying is that they haven't done a Brady search. One fifth (1/5th) [of the prosecution's] witnesses are from the Department of State, and yet Fein want to the Court to believe the Government hasn't seen the damage assessment. defines logic to put off Brady search to prepare our case.

...FBI Impact statement. When did you find out if it took you until 22 March 2012 [to notify the Court]? [Pesavento notes that Coombs says, "It is clear that the Government knew about the FBI impact statement by March 22 [2012], then threw it in as an afterthought in a later response."] ...federal agencies other than FBI....clear from defense [needs to be] cleared up...22 March we believe the Government knew about the FBI impact statement. That is problematic and they don't answer these questions.

On 8 June 2012 the Government [provided Defense with notification] DHS has a damage assessment. [Pesavento notes that Coombs says he asked Fein, "When did you find out about it?"] [The Government did not indicate when it first learned of the damage assessment or why it had not provided notice to the Court or the Defense of its existence. The Government simply stated that 8 June 2012 was the first time that they were authorized to provide the damage assessment to the Defense. See Defense Targeted Brief on Harm.] ...160 pages long...why this wasn't done in 2010. [DHS damage assessment] addressed to ONCIX for the ONCIX damage assessment. Page four [Pesavento notes that Coombs says, "the main headline on the document says it's intended for a 'damage assessment' so there should be no confusion." Pesavento also notes that Coombs says, "They just said 'we got authorizations on June 8' - but they had it for months...They knew DHS was They knew DHS was doing as assessment for ONCIX and didn't tell the court. There are problems with the government's beliefs regarding their obligations. An accounting would clarify what they believe." ]

Page four. Government says [transcriber noted DoS, but the context implies that was that this still regards DHS damage assessment] for ONCIX, first time they received authorization to provide to defense is in June... We have gone back and forth on "material to the preparation of defense." The Government hasn't provided any real answers...RCM 701(a)(2) obligation. [Regarding the] various agencies [the reoccurring words of the Government is] "in the process of reviewing." We are two years in. Why is the Government still in the process of reviewing and providing these documents to the defense. The Court needs to pull at the string [Pesavento notes, "f this argument, because if you do, it falls apart...Their representations do not ring true."]

...ONCIX...on 16 February the Government asked ONCIX, 'What do you have?' [ONCIX responded] 'ONCIX has not completed a damage assessment.' [The Government told the Court] 'ONCIX has not completed a damage assessment.' [This] statement sparked [a defense request that the] the Court [tell the Government] to go find out [whether there is a damage assessment from ONCIX.] Major Fein then says he called upon ONCIX orally...'ONCIX has not produced a an interim or final report.' Then they have another conversation with ONCIX. ...What is a draft? Why are you having this conversation...also you are trying to craft plausible deniability.' And, that is when the Government produces a legal brief... Then during motions argument, 'What are you doing...if not a draft?' Prosecution then says , "We asked." [Then] they write down what ONCIX says, this is what they say on that point. We ask and this [is what the Government says].

Coombs reads from a transcript.

...

Pesavento notes "Coombs went on, saying that Major Fein then went on to recount a conversation he had had with ONCIX, where he had asked them the difference between terms like 'draft' and 'interim' reports."

Defense (Coombs) continues: You have to believe...'We have no interim or draft damage assessment. That defies logic. As soon as the Court issues ruling then we have to share this with ONCIX or why go to ONCIX? Felt required to share with ONCIX [Pesavento notes Coombs saying, and "not other agencies"]...before Eureka moment. [Pesavento notes that Coombs says, "There's no other reason to have this conversation than to find terms to avoid discovery obligations."]

'We do have a draft damage assessment!' I realize at that point...and, how does the Government alert the Court? He went down had a meeting on 18 March. Two weeks later sends letter to General Counsel of ONCIX. Two times [Major Fein asked ONCIX], 'We need to see the most recent version [of the ONCIX damage assessment].' 'We need to see your draft damage assessment'... [Pesavento notes Coombs adds, Fein "should have said, 'we just found out about the existence of the ODNI report...'" then "If the government was totally unaware of the assessment, then the letter would read differently."]

...this Court is lead to believe that [Pesavento notes "from the time of the government's initial request in 2010"] up until 21 March when Government makes representations ONCIX [didn't have a damage assessment]. [Pesavento notes Coombs saying, "[a]ccording to the Government's implied version of events, a draft damage assessment was created"] between 21 March and 11 May. [Then] between 3 July and mid July have finalized [version]. [Pesavento notes Coombs saying, "You don't have 18 months of inactivity, then go to draft and final this fast."] Defies logic. That is why someone from ONCIX would be helpful.

...[Government says in a February 802 session it went to] 63 agencies ...looking high and low searching for Brady...[Government said] 'We even went to the Department of Agriculture.' [Pesavento notes Coombs adds, "Only then did the government reach out to 63 agencies, saying they needed to see what they had with regards to Manning. The court, said Coombs, needs to know what agencies the government was contacting prior to that 802 session, and which ones they have spoken to since then."]

Look at that email and attachment. He says ONCIX cannot share filing that they received. He has to go now to agencies...that problem should raise first [alarm?]...[Pesavento notes Coombs says, "The Court needs to know what agencies the Government was contacting prior to the 802 session, and which ones they have spoken to since then."]

But most important, [the Government now says] 'We have never maintained ONCIX was never doing a damage assessment. The very first time we learned their [was an ONCIX damage assessment] was when we received 12 pages of Brady. [Pesavento notes Coombs says, "that it's quite clear that ONCIX has been working on these matters since 2010."]

The story doesn't add up. We have a pattern of issues that should cause alarm to the Court... [Government is trying to] define its way out of discovery. [Pesavento notes Coombs says, "This type of discovery battle is almost unheard of in military court"] Normally, these games are not played... [Government is trying to] define its way out of discovery. [Pesavento notes Coombs says, "You don't play 'hide the ball' and that's what they've been doing. And we ask the court to put a stop to that."]

Prosecution (Fein): Deny request...RCM 802 not on the record. ...they are saying no reason based on facts proffered to Court. ...disregarding the complexity of the case. ...information might not exist. ...must rely on representation they give is important. ...pursuant to Court order ...authority is [?] Chapman...due diligence...[that case concerned] witness on the stand...and the [Government in that case] did not provide three times... [In that case] prosecution did not disclose Giglio. They did it a third time. ...we have bates numbers. ...again Chapman case.

[Pesavento notes on Fein's comments are particularly good.

'The defense is trying to take facts and assume facts to create additional obligations,' retorted Major Fein. 'The prosecution never claimed that we have completed our search, but that we are completing our search, which is what we've been doing since then and will continue.' Major Fein went on to state that there is no evidence that the defense is not receiving required information.

Defense (Coombs): Chapman case applies. They were a Court that did not just rely on [what] the Government [said]. ...don't share if not with defense. [Defense is asking the] Court to ensure that the Government is complying with discovery. ...after order. They talk about initial wave...we just ask Government to make due diligence accounting. This is really the beginning of discovery issues... If the Government doesn't have anything to hide [Pesavento notes Coombs says, "then what's the problem?"]

[The Government is calling] 22 witnesses from the Department of State...[Pesavento notes Coombs says, "We have too many problems to take them at their word...Why didn't you tell the court that a closely aligned agency wasn't providing relevant information?...It doesn't appear that they know what they're doing."]m [The Government even argued that] RCM 701(a)(2) does not apply to classified information.]

Judge Lind: When we are in recess I would like copies of [transcriber did not notate what she had asked for.] ...under advisement.

[END OF NOTES FROM TRANSCRIBER, BUT NOT END OF DAY. See account of events that led myself and two other journalists - one from the Associated Press and the other from Courthouse News to be threatened by MDW with arrest in the media center at Fort Meade, MD.]

I recommend Pesavento notes of the last session of the day for the most detailed account of the Courts ruling on

  • Court ruling on Government classified motion for MRE 505(g)(2) ex parte review for limited disclosure of CIA damage assessment. Granted. Court ruling is appellate exhibit 146. Pesavento notes the ruling "references a June 1 defense motion." The 1 June 2012 Court ruling is Defense motion that supplies the Court with list of factors it wishes the Court to consider the when conducting MRE 505(g)(2) in camera reviews requested by the Government, which itself was granted by the Court. Pesavento notes that the Court "said "the government had found no unclassified information favorable to the accused. The court has conducted an in camera review of the classified material, and does not find the substitute provided by the prosecution to be sufficient. During a June 7 recorded proceeding, the government advised the court of additional material." Pesavento notes the Court added, "Nothing from the WikiLeaks Task Force will be used by the government in court." This transcriber will add the the Government intends to use the CIA WTF for the sentencing phase.

  • Court ruling on the defense motion for due diligence. Granted in part. Pesavento notes the Court Ordered the Government to answer a series of questions," including:

    • What agencies of the government have been contacted to review for Brady material?
    • When were they contacted?
    • What has the prosecution reviewed?

    The Court also rules the Government must, "provide a timeline of their communications with ONCIX" for ex partereview. The Court said it would consider granting the Government an extension of time to respond if needed and filed as such.See detailed notes by Pesavento.

  • Court responds to defense motion for clarification on the Court ruling granting in part the defense motion to compel discovery no. 2. This is not a ruling. Pesavento notes, "The judge said that the government must provide to the defense -- beyond their existing obligations -- anything that would be 'obviously helpful' to the defense. She reminded to the defense that, as they have been doing, the government also needs to be told what information the defense considers relevant as well." See detailed notes by Pesavento.

Other resources: