Transcript | US v Pfc. Manning, Article 39(a) Session, 04/10/13

     

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."

This is a transcript of the Article 39(a) session in United States v. Pfc. Manning on April 10, 2013 at Fort Meade, MD. It may contain errors or omissions.

Judge Lind

Alright, before we being today's proceedings, I would like to address the spectators in the gallery and the media operations center. Rule for Court Martial 806(c) and the rules of practice before Army Courts-Martial prohibit video and audio recordings of court martial proceedings.

I implemented these rules for this trial. In light of the public interest in this case, I have allowed contemporaneous closed circuit audio and visual transmission of the proceeding to media center. There has been a violation of the Court's rules.

After the last Article 39(a) session on 26 February through 1 March 2013, an audio broadcast was placed on the internet of Pfc. Manning's statement that was read during his providence inquiry.

I remind you that phones and recording devices are not allowed in the media operations center.

To date, I have not ordered persons in the media operation center to be screened for phones and recording devices.

I hope I don't have to. I trust you will all follow the Court's rules and we will not have any additional violations of the rules of Court, thank you.

Does either side desire to supplement anything I just said?

Prosecution (Fein)

No, your Honor.

Defense (Coombs)

No, your Honor.

Judge Lind

Alright, we will begin as we normally do with what I call housekeeping matters. In between Article 39(a) sessions the parties file documents that are added into the record at the next session.

And, one of the things that has been sent to the Court-- on April 3 was an email from the government stating that the government and the defense are working together to decide what if anything the parties are going to stipulate to and they would advise me by the end of this Article 39(a) session [missed a few words], which would be the 12th-- at least that is scheduled-- what stipulations the parties agree to.

I am fine with that. I already approved that to the parties at an RCM 802 session-- that is a conference that I hold with parties to talk about logistics and other issues arising in the case. I will discuss that in further depth later today.

We held an RCM 802 session on the 4th of April.

Does either side desire to [missed word] with that?

Defense (Coombs)

No, you Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

Okay. Before we get into the RCM 802 conference, Major Fein would you like to set forth for the record what additional filings have been made by the parties?

Prosecution (Fein)

Yes, Ma'am.

Ma'am just the government, or also the--?

Judge Lind

You can do the defense to.

Prosecution (Fein)

Yes, Ma'am.

Ma'am on 8 March 2013, the defense filed a supplemental MRE 505(h) notice-- what has been marked as appellate exhibit 504 [missed a few words] filing.

On 15th of March 2013, the government filed an updated Grunden filing via SIPRNet and then on the same day the government filed a corrected copy of that classified filing via SIPRNet.

The corrected copy has been marked as appellate exhibit 505. And, then on the same day, the government filed a unclassified and redacted version that has been marked as appellate exhibit 506.

On the 15th of March 2013, the government filed a targeted brief based on the interplay of Military Rules of Evidence 505 and Rule for Court Martial 806 and Grunden. That has been marked as appellate exhibit 507.

On the 21rst of March 2013, the defense filed its targeted brief on the interplay of MRE 505 and RCM 806 and Grunden.

[Missed a few words] enclosure, and it has been marked as appellate exhibit 508.

On the 29th of March 2013 the defense filed its motion to have a witness-- a witness for the Court to consider in making the Court's Grunden determination. That has been marked as appellate exhibit 513.

On the 29th of March 2013 the government filed a targeted brief on the "reason to believe" element of 18 USC 793. And, that has been marked as appellate exhibit 509.

On the 29th of March 2013, the government filed a targeted brief on the receipt of intelligence element under Article 104, and that has been marked as appellate exhibit 510.

On the 29th of March the government filed another targeted brief on courtroom closure, and that has been marked as appellate exhibit 511.

Also, on the 29th of March 2013, the defense filed a targeted brief on the "reason to believe" being an element or not of 18 USC 793 violation. And that has been marked as appellate exhibit 514.

Your Honor, the 3rd of April 2013, the government filed a response to the defense request for a witness for the Grunden hearing, and that has been marked as appellate exhibit 512.

That is it your Honor.

Judge Lind

Alright. Mr. Coombs does the defense have anything to add?

Defense (Coombs)

No, your Honor.

Judge Lind

In light of the defense motion for appropriate relief that has been marked as appellate exhibit 513, the Court and the parties held an RCM 802 conference.

Once again, that is a conference where I go over logistics and scheduling issues with counsel. And we held that, and then we put the-- excuse me, we put the information that was discussed on the record at the next session.

In this case, we held the RCM 802 conference because the defense requested basically what I call a dry run witness to actually come to Court and testify in the closed session with the same testimony that that witness would be making in Court to assist the Court and parties to determine whether there are alternatives to closure that exist for classified information and to actually have that witness testify, so we know what information could potentially be at issue.

And, in light of the logistics of that should the Court order it, the Court decided not to wait until today to go over that with counsel.

So, we held the RCM 802 conference on the 4th of April. I was there personally with some of the counsel and other counsel called in telephonically.

Normally in these RCM 802 conferences, I put together an email and send it out to the parties synopsizing what occurred.

Since, this took place away from a computer for me, I asked one of the government counsel present to record what had occurred.

That recording was encapsulated in an email that went to both parties. The defense did not have any additions to that RCM 802 summary.

The RCM 802 summary is as follows:

This email synopsizes what was discussed during the RCM 802 conference held in the Command Building conference room at Fort McNair at 15 hundred on 4 April 2013. The parties present are Colonel Lind; for the government, Major Fein, Captains Morrow, Overgaard, Whyte, and [sounds like 'Pa-tropa' or 'Ba-tropa']. For the defense, Captain Tooman, and Mr. Coombs, and Major Hurley telephonically participated.

The following topics were discussed and they addressed more fully below:

1.) Recording the RCM 802.

2.) Stipulations.

3.) The purpose of the present 802 conference.

4.) Courtroom closure.

a.) Evidence required to substantiate classification of the government's proffered testimony.

b.) Envisioned unclassified summaries of witness opinions appropriate for open session; and

c.) Potential use of redacted transcript as a curative measure.

5.) The scheduling of the next ex parte session.

At the sessions conclusion the government had the following do-outs:

1.) Provide substantiation of classification for piece of information to the Court for a Grunden hearing-- [to the gallery] a Grunden hearing-- Grunden is a military case that discusses courtroom closures. So [missed a few words] be-- the courtroom hearings in the military are normally referred to as Grunden hearings.

2.) Provide the Court as soon as possible with the estimated time necessary to accomplish (1) above.

3.) Provide draft closure orders to the Court based on (1) above.

4.) Provide two draft closure orders to Court to cover closure for the testimony by the four special witnesses.

5.) Provide the Court the unclassified via NIPR email and classified via SIPR email classification reviews.

6.) Provide the name of witnesses the government-- of the witness the government will call as an example.

7.) Provide a plan on expeditiously release of redacted versions of closed sessions.

At the session's conclusion the parties also agreed that no further argument was necessary on the Article 104 and 793(e) issues.

The Court also noted the parties would want a ruling on the interplay between Grunden, MRE 505, and RCM 806.

1.) Recording the 802. As the Court did not have a recorded. She requested a participant record the proceedings. Captain [sounds like 'Pa-tropa' or 'Ba-tropa'] complied. Neither party objected to a government assisted trial counsel fulfilling this function. The Court noted that she believed that the issues for this 802 would be discussed in a general and unclassified way. Parties were advised that should classified information need to be discussed the telephonic line would need to be severed.

2.) Stipulations. The parties alerted the Court via email on 3 April 2013 that they continued to work on stipulations and intend to provide the Court an update by the end of the upcoming Article 39(a) session. Neither party objected to the Court ruling orally as opposed to in writing on this issue.

3.) The purpose of the present RCM 802 conference. The prosecution expressed an interest in clarifying whether the present RCM 802 would cover substantive content. The Court affirmed that while the 802 would address substantive content, the reason for the session was to ease the logistics of the Grunden ruling. The Court confirmed that the summary of the 802 would be placed on the record and neither party objected to proceeding in this manner.

4.) Courtroom closure.

a.) The prosecution articulated a two-fold objection to the defense's proposal of a sample witness. First, no other Court has done this to consider closure for classified information. And, second, because of the different content and basis of witness testimony one witness would not be instructive as to the feasibility of alternatives for the other 27. The government offered to go through the example of Article 32 closed session testimony to illustrate its points further.

The defense argued that all reasonable alternatives needed to be considered and ruled out and that calling a witness was the only way to test the reasonableness of the alternatives. However, as this issue could not be resolved in time for the next session, and in light of the necessity of severing telephonic communication to discuss classified information, the Court indicated the substance could be discussed further at a later time.

The Court acknowledged that a proffer is not evidence. The Court and the parties confirmed to their knowledge Grunden and Lonetree were the only military cases involving defense objection for Court closure for classified information.

The Court indicated it would not engage in comparing proffered testimony to classification guides to confirm proper classification, and the government explained that the classification guides were also provided for the Court Security Officer to use during the trial.

The Court, therefore, ordered the government to provide further evidence to substantiate its assertion that the proffered areas of testimony for which the government is requesting closure are classified.

The Court also ordered the government to provide a draft closure order, which connects each piece of classified information to the newly offered evidence as well as to those witnesses who are anticipated to discuss it.

The Court ordered the government to complete these tasks or to let the Court know if the completion is not possible by the next Article 39(a) session. The Court stated it would not make a ruling on the government's Grunden motion until the Court has that information.

The Court confirmed that going witness by witness seemed the best way to provide the required information but to let the Court know if [missed a few words] a number of different witnesses would be talking about the same classified information.

With regard to the proposed sample witness session, the defense noted that, for example, Original Classification Authorities and sentencing witnesses would testify differently from one another.

So, the sample witnesses should be included for different kinds of witnesses. The Court asked the government if the witnesses could be categorized.

The government confirmed that they could be [missed a few words] generically. For example, 'witnesses would testify as to impact.'

The Court ultimately expressed an interest in hearing a sample merits witness who would offer testimony on the sort of information to which the others would testify.

The Court ordered the government to notify her of what witnesses by the end of the next Article 39(a) session-- what the witness would be-- who the witness would be by the end of the next Article 39(a) session.

Based on the defenses' request, the Court may consider whether to have a sentencing witness at a later time. The parties agreed that this sample witness session should be conducted in closed session.

The defense indicated that it envisioned the government would go through a direct examination. Then all the participants would consider how alternatives might be applied to the testimony.

This process, parties anticipate, would take up to two days. The government explained that the defense's MRE 505(h) notice had not been processes, cross examination would likely not be possible.

The parties agreed that to the extent relevant they would both subject the witness to a direct examination. The government further noted that, because of the equities involved, and the fact that the witnesses belonged to other government organizations, selecting the witness would require input from other entities.

The government also raised the issue of whether or not the sample witness would be sworn to his or her testimony.

Finally, the government sought classification if there was no objection to courtroom closure for the entire testimony of the four special witnesses.

The defense confirmed that they did not object to three of the four witnesses. Whether or not the defense would object to Mr. John Doe is still contingent upon relevance and further information as to the light disguise.

The Court noted that the [missed word] order for those four witnesses and that the government need only provide the requested information-- or the government needed to provide the requested information as to the remaining twenty four witnesses.

b.) Potential scheduling conflicts. The dates of the closed Article 39(a) session to explore the sample witness's testimony was not yet set. The parties indicated they could have more clarity by the coming Article 39(a) session on April 10th through 12th.

The government cited its 3 April 2013 filing as an example to the Court of their broad subject matter and analysis were discussed in an open session and the classified details of the testimony were discussed in a closed session during the Article 32 hearing.

The Court inquired whether the government [missed a few words] making use of this alternative during the trial and if so how truncated the summaries would be.

The government responded it did not foresee using one classified summary during the trial and the specificity used in open session would track the specificity of the unclassified classification reviews previously provided to the Court.

The Court requested the government resend all the classification reviews to the Court and indicate the classification of each.

The government also voiced its concern that the testimony of the 24 witnesses would be overly confusing and the equivalent of a closure if the Court uses 'alleged' for the classified testimony [Transcribers note. I believe the word was 'alleged' but I am not certain].

The government cited page seven of the classified portion of the transcript of enclosure five, which was Special Agent Shaver's testimony to its 3 April 2013 filing as an example of what a closed session with a legend would look like using actual closed session testimony from the Article 32 investigation to illustrate its points further. The Court asked the government if the witnesses testimony cited was different than all of the other witnesses.

The government agreed that Special Agent Shaver would be the only forensic examiner who will testify during closed session.

c.) The Court said that it is highly considering employing the curative measure of making redacted transcripts of closed proceedings publicly available. The government confirms that this would require a classification review of the transcript as well as authentication.

The Court and the parties discussed any classified closed sessions transcribed first and then submitted for authentication and classification review contemporaneously. The government estimated it could have a plan for this undertaken for the court review in two weeks.

5.) Ex parte session. The government and the court agreed to hold their next ex parte session by close of business Wednesday, 10 April 2013. That is today.

The government stated that the extent of the defense's pretrial access to Mr. John Doe is contingent on the outcome of this session, if its assuming the court rules in favor of the government. The government would then release its plan of redacted and directed answers to the defense. Does either side have any addition to the court summary of the RCM 802 conference?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

May we have a moment your Honor?

Judge Lind

Yes.

Prosecution (Fein)

Ma'am, these are really just two-- I think just words got misplaced reading them on the record. (4) bravo. The paragraph starting with, 'The government cited its 3 April 2013 filing'?

Judge Lind

[Makes an affirmative sound, 'mm-hm'].

Prosecution (Fein)

In the middle there, there is a sentence your Honor. 'The government responded that it did receive the unclassified summaries during trial.' I think when the Court read it out loud, the Court says it 'did not,' but the government [foresee?] unclassified [missed word].

Judge Lind

Alright, thank you.

Prosecution (Fein)

And then-- yes, Ma'am. And the second in the very last paragraph five 'Ex Parte Session,' the government does intend, assuming the government-- or the Court rules in favor of the government's 505(i) motion to give the full classified direct-- not even redacted version-- to the defense-- look at the entirety.

Judge Lind

Alright, thank you.

Prosecution (Fein)

Yes, Ma'am.

Judge Lind

Alright, just for the record the ex parte sessions we've held with respect to the government's MRE 505(i) motion regarding the witness John Doe.

We went over that at the last Article 39(a) session-- the government had filed a request to have Mr. Doe testify in closed session in light disguise and to limit discovery and cross examination for the defense.

I held an ex parte session with the government, pursuant to Military Rule of Evidence 505(i) on the 8th of March 2013, and I gave the government some guidance on how to proceed with some of the issues that the court had some concerns with.

And, the government gave me a status update on the 20th of March 2013 on how they had implemented that guidance and we'll be holding a second ex parte session [missed a few words] by close of business today to look at what the have done in accordance with my guidance for that motion.

Anything further on that issue?

Prosecution (Fein)

No, your Honor.

Defense (Coombs)

No, your Honor.

Judge Lind

The parties and I talked just prior to coming on today, and the court is actually going to come out with an order that sets forth for the record those things-- the 'do-outs' that were discussed in the RCM 802 conference, but one of the things that the court is going to put in that order is the defense request for a dry-run, merits witness.

The court is going to grant that.

So, the parties were advised of that at the RCM 802 conference, and have been conferring as to an appropriate dates to make that happen. We have settled on the 7 through the 8 of May for that closed session.

Now, what if anything else is going to occur during that session is still up in the air, but right now that is the only thing scheduled for that session. This is the closed session we are going to have a dry run witness.

Does either side have anything further to add?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

Alright, is there anything else we need to address before we go into the two issues that-- in addition to all of the closure and 505(i) motions.

Two issues on the agenda for the court are the government's motion under the documents/information clause for 18 United States Code 793(e) and the defense motion to preclude evidence of actual receipt by the enemy [missed a few words] or the RCM 104 aiding the enemy offense and the 'wanton disclosure' of Specification 1 of Charge II.

Is there anything else that we need to address before we go into those issues?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, Ma'am.

Judge Lind

Alright, let's begin with the government's motion 18 United States Code Section 793(e).

Both sides have earlier advised the court that they did not want oral argument with respect to that motion. Is that still the case?

Prosecution (Fein)

Yes, your Honor.

Defense (Coombs)

Yes, your Honor.

Judge Lind

Alright. In light of that the court is prepared to rule.

[BEGIN APPELLATE EXHIBIT 555 515]

The government moves this Court to find that under the "documents" or "tangible" information clause of 18 USC 793(e) the government is not required to prove the accused "had reason to believe the information communicated could be used to the injury of the United States or to the advantage of any foreign nation" because this additional scienter requirement applies only to charged communications of intangible information. The Defense opposes, arguing that the charged communications are intangible information and the government is required to prove the additional "had reason to believe" scienter for both tangible and intangible information charged under the "information clause". After considering the pleadings, evidence presented, and argument of counsel, the Court finds and concludes the following:

Findings of Fact:

1.) Title 18 USC Section 793(e) penalizes in relevant part: "Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the US or the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated...to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the US entitled to receive it."

2.) The government has charged the 18 USC 793(e) specifications of Charge II in relevant parts as follows: "the accused...having authorized possession of information related to the national defense, to wit:

Specification 2 - a video file named "12 CZ ENGAGEMENT ZONE 30 GC ANYONE.avi"

Specification 3 - more than one classified memorandum produced by a US government intelligence agency

Specification 5 - more than 20 classified records from CIDNE Iraq database

Specification 7 - more than 20 classified records from CIDNE Afghanistan database

Specification 9 - more than 3 classified records from a US Southern Command database

Specification 10 - more than 5 classified records relating to a military operation in Farah Province, Afghanistan occurring on or about 4 May 2009

Specification 11 - a file named 'BE22.PAX.zip' containing a video named 'BE22 PAXX.wmv'

Specification 15 - a classified record produced by a US Army Intelligence organization, dated 18 March 2008.

with reason to believe such information could be used to the injury of the US or the advantage of any foreign nation, willfully communicated...to a person not authorized to receive it"

3.) The government argues that despite the fact that the specifications include the additional "reason to believe" scienter, the government is required to prove this additional scienter requirement beyond a reasonable doubt only if the Court finds the charged matter communicated is tangible information. If the Court finds the charged matter communicated is tangible information, then the government is not required to prove the "reason to believe" scienter beyond a reasonable doubt. The Court could except the additional "reason to believe" scienter language from the specifications and find the accused guilty of violating 18 USC Section 793(e) and Article 134, UCMJ under the "documents' clause.

The Law: When interpreting a statute, the Court employs the following process: (1) Give the term of the statute their ordinary meaning if the terms are unambiguous; (2) If the terms of the statute are ambiguous, then the Court examines the purpose of the statute and its legislative history to resolve the ambiguity; and (3) If a reasonable ambiguity still exists, the Court applies the rule of lenity and resolves the ambiguity in favor of the accused. United States v. Starr, 51 MJ 528, 532 (A.F. Ct. Crim. App. 1999)

Conclusions of Law:

1.) 18 USC 793(e) penalizes the willful communication of (1) any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or (2) information relating to the national defense which information the possessor has reason to believe could be used to the injury of the US or the advantage of any foreign nation. The Court refers to these clauses as "the documents clause" and "the information clause", respectively. The Court also refers to "which information the possessor has reason to believe could be used to the injury of the US or to the advantage of any foreign nation" as "the reason to believe" scienter requirement.

2.) US v Rosen was the first prosecution under 18 USC 793(e) of a person for the oral transmission of information related to the national defense. 445 F. Supp.2d at 613-614 (ED Va 2006). In addressing various constitutional challenges to the statute, Rosen, found that "information" under 18 USC 793(e) is a general term that includes knowledge derived from both tangible and intangible sources. The Rosen Court looked to the legislative history of 18 USC 793(e) and held that the additional "reason to believe" scienter requirement applies only to communication of intangible information and that this heightened scienter also required the government to prove the defendant's bad faith purpose to either harm the United States or to aid a foreign government. 445 F.Supp.2d at 625-626.

3.) Post-- Rosen Court's addressing communication of information under 18 USC 793(e) have uniformly held that the government is not required to prove that the defendant intended to harm the US or air a foreign government when the government charges communications under the "information clause," US v. Diaz 69 MJ 127 (CAAF 2010); US v Steel, 2011 WL 414992 (A.Ct.Crim. App); US v. Kiriakou, 2012 WL 4903319 (ED Va.).

4.) 18 USC 793(e) is not ambiguous. It penalizes communications under the "documents clause" (any document, writing code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense) or communications under the "information clause" (information relating to the national defense which information the possessor has reason to believe could be used to the injury of the US or to the advantage of any foreign nation). The "information clause" can include tangible and/or intangible information. There is no "tangible information" clause in 18 USC 793(e).

5.) Communications charged under the "documents clause" do not require the government to prove the additional "reason to believe" scienter requirement. US v. Drake, 818 F. Supp. 2d 909 (D. Md. 2011) (charged with retention of classified documents under the "documents clause" - "reason to believe" scienter not required element); US v. Kim, 808 F. Supp.2d 44 (DDC 2011) (oral disclosure of classified information - intangible information - "Congress' decision to impose a scienter requirement for the communication, delivery, transmission of "information" but not for tangible items demonstrates that Congress understood and embraced the distinction between the tangible items listed in the statute and intangible information")

6.) Communications of tangible or intangible information charged under the "information clause" require the government to prove beyond a reasonable doubt the additional "reason to believe" scienter. Diaz, 69 MJ 130 (printed list of detainees held at Guantanamo - tangible information); Steele (rationed classified material - tangible information); Kiriakou (oral communication - intangible information - "The parties contest what the heightened scienter requirement entails because the indictment specifically charges Kiriakou with violating the information clause not the documents clause."); Drake, 818 at 916-917 ("Thus, only the second 'information' clause requires proof of the 'reason to believe element'.")

7.) The government equates "the documents clause" and "tangible information". They are not the same. It is possible that tangible information could also meet the definition of one of more of the series of terms which comprise the "documents clause" (any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense). In such cases, the government could charge a violation of 18 USC 793(e) under the "documents clause" (any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense). In such cases, the government could charge a violation of 18 USC 793(e) under the "documents clause" (no "reason to believe" scienter required); under the "information clause" ("reason to believe" scienter required) or, in the alternative, if there was concern that the tangible information at issue might not qualify as any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense in the "documents clause".

8.) In this case, the matter constituting the charged communications in specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II is tangible information. Actual physical matter, not oral communication, was communicated. The government elected to charge the communication under the "information clause". That clause carries with it the "reason to believe" scienter requirement. The government is required to prove beyond a reasonable doubt that the accused had reason to believe the communicated information could be used to the injury of the US or to the advantage of any foreign nation for the accused to be found guilty of a violation of 18 USC 793(e) as charged in these specifications.

Ruling: The government Motion for the Court to find that under the "documents or "tangible information" clause of 18 USC 793(e) the government is not required to prove the accused "had reason to believe to the information transmitted could be used to the injury of the United States or to the advantage of any foreign nation" because this additional scienter requirement applies only to communications of "intangible information" is DENIED.

So ORDERED this 10th day of April 2013.

[END APPELLATE EXHIBIT 555 515]

Judge Lind

Please mark this as the next appellate exhibit in line. Is there anything further from either side with respect to this issue?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

Alright, the next issue on the agenda is the defense motion to preclude receipt by the enemy on the merits. Does either side desire oral argument with this?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

Alright. the Court is prepared to rule on this issue as well, but I am going to take a ten minute recess to give my voice a rest. The Court is in recess.

ALL RISE

ALL RISE

Judge Lind

Please be seated. This Article 39(a) Session is called to order. Let the record reflect all parties present when the Court last recessed are again present in Court.

The Court is prepared to rule on the defense motion to preclude evidence of receipt by the enemy on the merits.

[BEGIN APPELLATE EXHIBIT 516]

The Defense moves to preclude the government from raising or eliciting any discussion, reference, or argument, to include the introduction of any documentary or testimonial evidence relating to receipt by al Qaeda, al Qaeda in the Arabian Peninsula, the enemy listed in Bates Number 00410660 - 00410664 or any other enemy during the merits portion of the trial.

The Defense argues that the evidence is not relevant to any of the charged offenses, and even if relevant, the probative value of receipt by the enemy is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence under MRE 403.

The government opposes, arguing that this evidence is relevant to the specification of Charge I (Giving Intelligence to the Enemy, Article 104, UCMJ) and specification 1 of Charge II (Wanton Publication of Intelligence, Article 92 [sic, should be 'Article 134'], UCMJ).

At oral argument, the government also argued that the evidence was relevant to the "caused to be published" element of specification 1 of Charge II. The government has not proffered this evidence for any other purpose.

During the Article 39(a) session from 26 February - 1 March 2013, the Court invited the parties to file targeted briefs on receipt of intelligence as a requirement for the offense of Giving Intelligence to the Enemy.

On 29 March 2013, the government filed a targeted brief.

On 1 April 2013, the Defense advised the Court that the Defense would not be filing a targeted brief.

After considering the pleadings, evidence presented, and argument of counsel, the Court finds and concludes the following:

Findings of Fact:

1.) The Court's instructions for the charge of Knowingly Giving Intelligence to the Enemy as charged in the specification of Charge I are:

Charge I: Aiding the Enemy

In the specification of Charge I, the accused is charged with the offense of Aiding the Enemy by Giving Intelligence to the Enemy, in violation of Article 104, UCMJ. In order to find the accused guilty of this offense, you must be convinced by legal and competent evidence beyond a reasonable doubt:

(1) That at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, the accused, without proper authority, knowingly gave intelligence information to certain persons, namely: al Qaeda, al Qaeda in the Arabian Peninsula, and an entity specified in Bates Number 00410660 through 00410664 (classified entity).

(2) That the accused did so by indirect means, to wit: transmitting certain intelligence, specified in a separate classified document to the enemy through the WikiLeaks website;

(3) That al Qaeda, al Qaeda in the Arabian Peninsula, and Bates Number 00410660 through 00410664 (classified entity) was an enemy; and

(4) That this intelligence information was true, at least in part.

"Intelligence" means any helpful information, given to and received by the enemy, which is true, at least in part.

"Enemy" includes (not only) organized opposing forces in a time of war, (but also any other hostile body that our forces may be opposing) (Such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)

"Indirect means" means that the accused knowingly gave the intelligence to the enemy through a 3rd party, an intermediary, or some other indirect way.

"Knowingly" requires actual knowledge by the accused that by giving intelligence to the 3rd party or intermediary or in some other indirect way, that he was actually giving intelligence to the enemy through this indirect means. This offense requires that the accused had a general evil intent in that the accused had to know he was dealing, directly or indirectly, with an enemy of the United States. "Knowingly" means to act voluntarily or deliberately. A person cannot violate Article 104 by committing an act inadvertently, accidentally, or negligently that has the effect of aiding the enemy.

2.) The definition of "intelligence" in this instruction is taken from the Military Judge's Benchbook, US Department of the Army, Pamphlet 27-9 at 3-28-4(d) (1 January 2010) (Hereinafter referred to as Benchbook).

3.) The Defense argues that the Benchbook instruction is an inaccurate statement of the law and points to the language of Article 104, UCMJ and the elements and definitions. The Defense posits that "giving intelligence to the enemy" is a subset of "communicating" or "corresponding" with the enemy under Article 104(2).

The Defense relies on Article 104(c)(5)(a) that "giving intelligence to the enemy is a particular case of corresponding with the enemy made more serious by the fact that the communication contains intelligence". It focuses on the explanation in Article 104(c)(6)(a), that "no response or receipt by the enemy is required," and relies on US v. Olson, 7 USCMA 460(CMA 1957), and its discussion of a previous version of the Manual for Courts-Martial (MCM) that "the prohibition lies against any method of communication whatsoever, and the offense is complete the moment the communication issues from the accused, whether it reaches its destination or not." Olson at 467-68. The Defense further contends that allowing evidence of actual receipt by the enemy will sidetrack and unnecessarily delay the trial.

4.) The Defense describes "intelligence" as a noun, such that the Court's proposed instruction defining intelligence conflates defining "intelligence" with "knowingly giving". The government agrees.

5.) The government contents the evidence is relevant and neither cumulative nor unfairly prejudicial. It further contends receipt of intelligence by the enemy is a definitional requirement of intelligence, citing RCM 307 (c )(3), defining a specification as a plain, concise, and definite statement of the essential facts constituting the offense charged.

The government cites the Benchbook for the definition of intelligence and asserts William Winthrop, Military Law and Precedents 634, (2d ed. 1920 reprint) as compelling legal authority that "[o]f the specific instance of a direct violation of [giving intelligence to the enemy]...[i]t is necessary that the enemy shall have been actually informed." The government notes the Supreme Court and the Court of Military Appeals have relied on Winthrop as an authority on UCMJ history. Hamdan v. Rumsfeld, 548 US 557, 597 (2006); US v. Batchelor; 7 USCMA 354, 368 (1956). The government contends giving intelligence to the enemy is a separate and distinct crime from communicating with the enemy, citing US v. Anderson, 68 MJ 378, 385 (CAAF 2010) and US v. Dickenson, 6 USCMA 438 (CMA 1955)

6.) Specification 1 of Charge II alleges wrongful and wanton causing to be published on the internet intelligence belonging to the United States government; having knowledge that intelligence published on the internet is accessible to the enemy, in violation of Article 134. The government asserts that evidence that the enemy received and downloaded the intelligence is relevant to prove that the accused "caused to be published" the intelligence.

The Law.

1.) Military Rules for Evidence (MRE) 401 defines "Relevant Evidence". Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. The military judge has the initial responsibility to determine whether evidence is relevant under RCM 401. US v. White, 69 MJ 236 (CAAF 2010)

2.) MRE 402 provides that all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States as applied to members of the armed forces, the code, these rules, this Manual, or any Act of Congress applicable to members of the armed forces. Evidence which is not relevant is not admissible.

3.) Relevant evidence is necessary when it is not cumulative and when it would contribute to a party's presentation of the case in some positive way in a matter at issue. A matter is not at issue when it is stipulated as fact (discussion to RCM 703(b)(1)).

4.) MRE 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

5.) Article 104, UCMJ penalizes in pertinent part: "Any person who without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly."

6.) In the MCM, page IV-21, paragraph 28 the President has delineated separate elements and definitions for the offenses of "Giving Intelligence to the Enemy" and "Communicating with the Enemy".

7.) In Paragraph 28 (c)(5) the nature of the offense "Giving Intelligence to the Enemy" is explained as "a particular case of corresponding with the enemy made more serious by the fact that the communication contains intelligence that may be useful to the enemy for any of the many reasons that make the information valuable to belligerents."

8.) In paragraph 28 (c)(6) the nature of the offense "Communicating with the Enemy" is explained as "[n]o authorized communication, correspondence, or intercourse with the enemy is permissible. The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused."

9.) The analysis to Article 104 in Appendix 23, MCM states that it is based on paragraph 183 of the 1969 MCM and cited US v. Olson, 7 USCMA 460 (CMA 1957); US v. Batchelor, 7 USCMA 354 (CMA 1956); and US v. Dickenson, 6 USCMA 438 (CMA 1955).

10.) The MCM lists "attempts" as lesser included offense (LIO) for both "Giving Intelligence to the Enemy" and for "Communicating with the Enemy". it does not list either offense as the LIO of the other.

11.) In Batchelor, the Court of Military Appeals (CMA) acknowledged Colonel William Winthrop as "[p]robably the most respected early writer in the field of military law" and his "learned treatise" cited in support of the holding "that Article 104(2) of the Code does not require a special criminal intent of any sort." The CMA went on to note that the government is not prohibited "from over-providing its case in prosecutions under Article 104." Id. at 368. The United States Supreme Court has referred to Winthrop as "'the Blackstone of Military Law'" Hamdan v. Rumsfeld, 548 US 557, 597 (2006) (quoting Reid v. Covert 354 US 1, 19 (1957).

12.) Winthrop defines the offense of Giving Intelligence to the Enemy as follows:

GIVING INTELLIGENCE TO THE ENEMY, This offense will consist in communicating to the enemy, by personal statement, message, letter, signal or otherwise, information in regard to the number, condition, position, or movement of the troops, amount of supplies, acts or projects of the government in connection with the conduct of war, or any other fact or matter that may instruct or assist him in the prosecution of hostilities.

...

It is necessary that the enemy shall have been actually informed. if thee-fore the intelligence fails to reach him, this offense is not completed, though the offense of holding correspondence may be. It would seem also that the facts communicated should be in part at least true, since, if they are entirely false, intelligence cannot be said to be given.

William Winthrop, Military Law and Precedents 634 (2d ed. 1920 reprint) (emphasis in original).

13.) "While military judges are encourage not to significantly deviate from the standard instructions found in the Military Judges' Benchbook, the standard instructions are not sacrosanct." US v. Staton, 68 MJ 569 (AF Ct. Crim. App. 1009). (upholding deviations conforming to current case law). "Because the standard Benchbook instructions are based on a careful analysis of current case law and statute, an individual military judge should not deviate significantly from these instructions without explaining his or her reasons on the record." US v. Rush, 51 MJ 605, 609 (A. Ct. Crim. App. 1999)

Conclusions of Law:

1.) Article 104 includes elements for five separate offenses: aiding the enemy, attempting to aid the enemy, harboring or protecting the enemy, giving intelligence to the enemy, and communication with the enemy. Each of these offenses is distinct and separate from the other offenses. US v. Anderson, 68 MJ 378 (CAAF 2010) quoting US v Dickenson, 6 USCMA 438, 450 (CMA 1955).

2.) The statutory language of Article 104, UCMJ is silent with respect to whether response or receipt by the enemy is required for the offenses of "Communicating with the Enemy" and "Giving Intelligence To The Enemy"-- [sic, corrects herself at the Article 39(a) Session on 10 April 2013] excuse me-- with respect to the offense of "Giving Intelligence to the Enemy". In the MCM, the President explained that the offense of "Communicating with the Enemy" is "complete the moment the communication, correspondence, or intercourse issues from the accused". MCM, IV-41, paragraph 28( c )(6)(a). The explanation for the offense of "Giving Intelligence to the Enemy" does not state that giving intelligence is complete the moment the giving issues from the accused. This distinction is consistent with Winthrop's explanation of the distinction between the two offenses and a Judge Advocate General opinion regarding Article 46 of the American Articles of War 1874, the version of the offense of Aiding the Enemy in effect at the time. William Winthrop, Military Law and Precedents 633-634 (2d ed. 1920 reprint); William Winthrop, Digest of the Opinion of the Judge Advocates General of the Army with Notes 41-42 (1895).

3.) Aiding the Enemy has been an offense in military codes since the American Articles of War in 1775. US v. Batchelor, [at the Article 39(a) Session on 10 April 2013, she says, "22 CMR 144, 158"] 7 USCMA 354, 368 (CMA 1956) ("This provision [Article 104] is not new or novel, for it was taken, with only minor changes, from Article of War 81, 10 USC Section 1553 ... Indeed, the present enactment bears a striking resemblance to Article 28, American Articles of War 1775, which provided: "Whosoever belonging to the continental army, shall be convicted of holding correspondence with, or giving intelligence to, the enemy, either directly or indirectly, shall suffer punishment as by a general court-martial shall be ordered." And the gist of this penal statute has appeared in every military code since that time. See Article 46, American Articles of War, 1874; Article 81, Articles of War 1916 and 1920.") Batchelor went on to describe Winthrop as "Probably the most respected early writer in the field of military law" and the Court relied on Winthrop's interpretation of Article 46, the predecessor statute to Article 104, UCMJ as defined in the 1951 MCM. Id.

4.) The Defense relies upon US v. Olson, [at the Article 39(a) Session on 10 April 2013, she says, "22 CMR 250"] 7 USCMA 460, 467 (CMA 1957) to show that the offense of "Communicating with the Enemy" "has been interpreted consistently so as to require absolute nonintercourse since early times." Olson does not address the separate offense of "Giving Intelligence to the Enemy" at issue in this case.

5.) The 1951 Article 104, UCMJ is nearly identical to the current Article 104, UCMJ. There has been no legislative, executive, or case-law history since Batchelor that indicates any intent by Congress, the President, or the Courts to interpret Article 104, UCMJ inconsistently with its history as described by Winthrop and relied upon in Batchelor to interpret the statute. The President has retained the distinction between "Communicating Intelligence to the Enemy" (offense complete the moment the communication issues) and "Giving Intelligence to the Enemy" (no provision that the offense is complete when the giving issues). Furthermore, the standard instruction for Article 104 in the Benchbook invoke the same distinction and are consistent with Winthrop with the definition requiring that "Intelligence" means any helpful information, given to and received by, the enemy, which is true, at least in part."

6.) The offense of Article 104 "Giving Intelligence to the Enemy" requires the government to prove beyond a reasonable doubt that the intelligence was actually received by the enemy."

7.) The Court agrees with the parties that "intelligence" is a noun, and that as such, the current Benchbook instruction in the Court's instructions: "Intelligence means any helpful information, given to and received by the enemy, which is true, at least in part" is awkward. The Court will reword the instructions to read: "Intelligence means any information that is helpful to the enemy and which is true, at least in part. To find the accused guilty of this offense, the government must prove beyond a reasonable doubt that the intelligence was given to and received by, the enemy."

8.) Even if receipt by the enemy was not required, evidence of the circumstances surrounding the receipt by the enemy is relevant to the element of whether the accused knowingly gave intelligence to the enemy for the specification of Charge I (Aiding the Enemy). Evidence of the path of the intelligence from the accused to the enemy is circumstantial evidence relevant to prove whether the accused knew or did not know he was dealing with the enemy.

9.) Similarly, evidence of the circumstances surrounding the enemy's receipt of the intelligence is relevant to the "cause to be published" element of Specification 1 of Charge II (Wanton Publication). As the evidence is also relevant to another charge, the Court will not decide whether there could be other less prejudicial evidence to establish this element.

10.) The evidence at issue is not cumulative. Its probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Allowing the evidence at issue will not sidetrack or unnecessarily delay the trial by shifting the focus to whether or not the enemy actually received the charged information. Thus, the Court finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the members. Presentation of the evidence will not cause undue delay, waste of time or needless presentation of cumulative evidence IAW MRE 403.

RULING: The Defense Motion to Preclude the government from raising or eliciting any discussion, reference, or argument, to include the introduction of any evidence relating to the receipt of charged information by al Qaeda, al Qaeda in the Arabian Peninsula, the enemy listed in Bates Number 00410660 through 00410664 or any other enemy from the merits portion of the trial is DENIED. The court's instructions regarding the specification of Charge I will be amended as stated in this ruling.

So ORDERED this 10th day of April 2013.

[END APPELLATE EXHIBIT 516]

Does either side desire anything further with respect to this ruling?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

Have it marked as the next appellate exhibit in line. Alright. My notes indicate that what we have left is the court is preparing, as I say, the draft closure-- the draft order with respect to the things that were discussed in the RCM 802 conference. I'm going to need a little time with that. And we have the MRE 505(i) hearing. Is there anything else we need to litigate at this session?

Prosecution (Fein)

Ma'am, when you said 505(i), [missed a few words] ex parte session?

Judge Lind

Yes.

Prosecution (Fein)

No, Ma'am. We-- the government also by lunch-- or during lunch will have the draft closure orders ready for the court to view-- for the four witnesses.

Judge Lind

Alright. I am thinking the way to do this best, might be to do the 505(i) hearing. Take lunch, and then come back on the record. I'll be able to look at your closure orders as well and get the copy to the defense, and then address those orders and then the court will have a little bit of time to do what I need to do with respect to the draft order from the RCM 802 conference. If we reconvene later this afternoon would that work for the parties?

Defense (Coombs)

Yes, your Honor.

Prosecution (Fein)

Yes, your Honor.

Judge Lind

I am thinking something to the effect of 15 hundredi'sh?

Prosecution (Fein)

Yes, Ma'am.

Defense (Coombs)

Yes, your Honor.

Judge Lind

Alright. So, how long will it take the government to be prepared for that MRE 505(i) hearing to give the court and the defense the draft orders?

Prosecution (Fein)

Ma'am, may we have an in place recess?

Judge Lind

Yes.

Prosecution (Fein)

Ma'am no more than twenty minutes. We can let the court know only because we have to set up the court reporter equipment. Otherwise, the government is ready, your Honor.

Judge Lind

Alright. Is there anything else we need to address before we recess the court?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

Alright. Court is in recess. We will reconvene at 15 hundred.

ALL RISE.

ALL RISE

Judge Lind

Please be seated. This Article 39(a) session is called to order. Let the record reflect all parties present when the court last recessed are again present in court. During the recess I held a second ex parte Article 39(a) session with the government with respect to government's Military Rule of Evidence 505(i) motion for the witness John Doe. That ex parte session involved defense discovery issues.

Judge Lind

Does either side have anything that they would like to present at this time with respect to any of the motions that have been filed with respect to the interplay between MRE 505(i) and then the rule for closure under RCM 806(b) or the government's 505(i) motion with respect to John Doe or their omnibus closure motion with respect to three classified witnesses John Doe, and the 24 other witnesses.

Defense

No, Ma'am.

Prosecution (Fein)

No, Ma'am with one exception. After the ex parte session that you just discussed on the record, the government went back and about 14:30 today disclosed the three documents that were the subject of that motion-- or that hearing, excuse me-- to the defense and they have two copies of those three documents in their possession.

Judge Lind

Alright. Thank you. And, I am going to announce the ruling of the court. I sort of have a big omnibus ruling here that takes care of all of those issues. And, after that the parties and I spoke at an RCM 802 conference and discussed some following actions that will make more sense after I announce the ruling to you.

[BEGIN RULING AND ORDER: INTERPLAY BETWEEN MRE 505, RCM 806, AND US v. GRUNDEN, SPECIFICITY OF CLASSIFIED INFORMATION AND JOHN DOE]

Ruling and Order: Interplay Between MRE 505, RCM 806, and United States v. Grunden, Specificity of Classified Information and John Doe.

Motion 1. The government moves this court to find that MRE 505(i) Classified Information and RCM 806 operate independently of each other although both rules address the use of classified information during a court martial trial. The defense opposes and moves the court to require the procedures of MRE 505(i) be followed when making closure determinations in accordance with Rule for Court Martial 806(b)(2).

Motion 2. On 15 March 2013, the government provided the court and the defense with a supplement to prosecution response to scheduling order 39(a) session on closure and motion to close the courtroom for specified testimony.

On 28 March 2013, the defense moved the court to order the government to provide more specificity regarding the classified information it seeks to elicit during the closed session. The defense also moved the court to order the government to release a merits witness and a sentencing witness to go through a "dry run" of the classified testimony in a closed Article 39(a) session to address whether there are reasonable alternatives to closure available.

Motion 3. On 31 January 2013 the government moved for an in camera proceeding under Military Rules for Evidence 505(i)(2) regarding the witness John Doe to determine the necessity for moving the court to order the following:

(1) Permit the witness to testify under the pseudonym John Doe to testify in civilian clothing in light disguise and to testify from an alternate location in a closed session.

(2) Limit discovery and cross examination regarding information that could reveal the witness' true identity; and

(3) Limit discovery and cross examination by precluding the defense from questioning the witness regarding irrelevant and highly classified information including his training for a specific classified mission; preparation for the mission; or details of the mission's execution outside the scope of direct examination.

After considering the filings by the parties and oral argument, the Court finds and rules and orders as follows:

FINDINGS OF FACT AND THE LAW:

(1) The accused has a Sixth Amendment right to a public trial. Waller v. Georgia 467 US 39 (1984); US v. Ortiz 66 MJ 334 CAAF (2008). The public has a First Amendment right to attend [public?] and criminal trials. Press Enterprise Company v. Superior Court of California Riverside County 464 US 501 (1984); Powell v. McKinney, 47 M.J. 363 (C.A.A.F. 1997). Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials to include considering alternatives to closure even when they are not requested by the parties. Presley v. Georgia 558 US 209 (2010).

(2) The values enhanced by the requirement for public trial are to (1) inspire public confidence that the accused is fairly dealt with and not unjustly condemned; (2) impress upon trial participants the importance of their function and the importance of carrying out their duties responsibly; (3) encourage witnesses to come forward; and (4) to discourage perjury. Waller 467 US at 46 Openness enhances both basic fairness of the criminal trial and then appearance of fairness so essential to public confidence in the criminal justice system. Press Enterprise Company 464 US at 501-509.

(3) Before the Military Rules of Evidence were enacted in 1980, military case law allowed closure of courts-martial for portions of the trial where classified information was to be disclosed. US v. Grunden 2 MJ 116 CMA (1977) established a test for such closures.

(4) Under the current rules, Military Rule of Evidence 505 governs the use of classified information at trial. MRE 505(i) are in camera proceedings for cases involving classified information authorizes in camera proceedings to address the use of any proceeding of any classified information. MRE 505(j) governs the introduction of classified information into evidence at trial. MRE 505(j)(5) close session provides that the military judge may exclude the public during that portion of the presentation of evidence that discloses classified information.

(5) RCM 806 establishes the standards for closure for any reason to include the protection of classified information.

(6) Prior to its amendment in 2004, RCM 806(b) provided in relevant part that "a session may be closed over the objection of the accused only when expressly authorized by another provision of this manual." The discussion to the rule explained that "a session may be closed without the consent of the accused only under MRE 412(c); 505(i) and (j); or 506(i). This authorization of trial closure failed to apply the constitutional test set forth in Waller and Press Enterprise and adopted by the Court of Appeals for the Armed Forces in United States v. Hershey 20 MJ 433, 436 CMA (1985).

(7) In 2004, RCM 806(b)(2) was amended to incorporate the constitutional test for trial closure. The rule provides that the trial "shall be open to the public unless (1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remained open"; (2) closure is no broader than necessary to protect that overriding interest; (3) reasonable alternatives to closure were considered and found to be inadequate; and (4) the military judge makes case specific findings on the record justifying closure.

(8) The Court of Appeals for the Armed Forces (CAAF) has recognized that the protection of classified information can be an overriding interest if the proceedings remain open. United States v. Lonetree 31 MJ 849 Navy Marine Corps of Military Review (1990) affirm 35 MJ 396 (CAAF 1992); and United States v. Grunden 2 MJ 116 CMA (1997).

(9) Where the identity of a witness is classified or if the government proves that the witness' personal safety would be at risk if his identity is disclosed at trial, the Sixth Amendment allows the government to withhold the identity of the witness and to allow the witness to testify in light disguise so long as the defense is able to place the witness in his proper setting. Unites States v. Lonetree 35 MJ 396 CMA (1992).

(10) In the government's 15 March 2013 classified filing Supplement to Prosecution Response to Scheduling Order of 39(a) Session from Closure and Motion to Close Courtroom for Specified Testimony, the government describes the classified information it moves to elicit in closed session for the following witnesses:

(1) Brigadier General Retired Robert Carr, DIA

(2) Colonel Julian Chestnut, DIA

(3) Classified Witness Entirety

(4) Ms. Elizabeth Dibble, Department of State, Principal Deputy Assistant Secretary, Bureau of Near Eastern Affairs

(5) John Doe (Entire)

(6) Rear Admiral Kevin Donegan, Naval Warfare Integration, Pentagon

(7) Mr. John Feeley, Principal Deputy Assistant Secretary, Bureau of Western Hemisphere Affairs, Department of State

(8) Ambassador Patrick F. Kennedy, Under Secretary for Management, Department of State

[Diplomatic Security Services which partnered with the Departments of Defense and Justice in the investigation of Julian Assange, WikiLeaks, and Manning report to Ambassador Patrick Kennedy. Bureau of Intelligence and Research, which created the "August 2011 draft damage assessment" also reports to Kennedy. Kennedy is the Original Classification Authority for the US State Department cables. He aslo testified to Congress in late November, early December of 2010, and in March 2011 about WikiLeaks. He is also responsible for the WikiLeaks Mitigation Team at the Department of State. See here, here, here, here.]

(9) Mr. John Kirchhofer, DIA

(10) Ambassador Michael Kozak, Department of State

(11) Classified Witness Entirety

(12) Mr. Daniel Lewis, DIA

(13) Mr. Randall Mcgrovey [sp.?], DIA

(14) Mr. James McCarl, Joint IED Defeat Organization (JIEDDO)

(15) Major General Kenneth F. McKenzie, USMC Headquarters Staff

(16) Mr. James Moore, Department of State

(17) Major General Michael [last name like, "Ma-guy"] McGuy, Joints Staff Pentagon

(18) SSA [Supervisory Special Agent] Alexander Pott [sp.], FBI

(19) Ambassador David Pearce, Department of State

(20) Mr. Adam Pearson, JIEDDO

(21) Mr. H. Dean Pittman, Department of State

(22) Classified Witness in Entirety

(23) Ambassador Stephen Seche, Department of State

(24) Mr. David Shaver, US Department of Treasury

(25) Mr. Catherine Stobel [sp.], CIA

(26) Ambassador Don Yamamoto, Department of State

(27) Ambassador Marie Yovanovitch, Department of State; and

(28) Mr. Joseph Yun, Department of State

(11) On 4 April 2013 the court held and RCM 802 conference with the parties to discuss the motions at issue in this case and scheduling issues involve in implementing this order. At that RCM 802 conference the defense advised the court it did not object to closure for three classified witnesses or for John Doe, and did not object to John Doe testifying in an alternate location or in light disguise in civilian clothing, so long as the light disguise allows the defense allows the defense to observe John Doe's demeanor. The substance of that RCM 802 conference is documented via email and has been read on the record.

CONCLUSIONS OF LAW:

(1) MRE 505(i) authorizes the government to request an in camera proceeding to determine whether classified information maybe disclosed either to the accused in discovery or used during the trial.

(2) MRE 505(j) governs the introduction of classified information into evidence in the trial. MRE 505(j)(5) authorizes military judges to close the trial during that portion of the presentation of evidence that discloses classified information.

(3) The First and Sixth Amendment rights to a public trial require the judges to employ the constitutional test for closure in accordance with RCM 806(b)(2) prior to closing any portion of the trial in accordance with MRE 505(j)(5).

(4) The requirements of 505(i) are not applicable when the government request closure of a portion of the trial or an Article 39(a) session in accordance with RCM 806(b)(2). Where the basis for the closure is to protect national security by preventing disclosure of classified information, the government must identify the particular classified information at issue to the defense and court with sufficient specificity to allow the defense to propose alternatives and to challenge closure and to provide the court with sufficient information to apply the RCM 806 test and determine whether there is a substantial probability that an overriding interest would be prejudiced if the proceeding remain open; (2) Closure when it is broader than necessary to protect that overriding interest; (3) Whether there are reasonable alternatives to closure and whether they be considered and found inadequate; and (4) to make case specific findings on the record justifying closure. The government must also provide the court with evidence that the information it seeks to qualify has an overriding interest requiring protection by closure is properly classified.

(5) The court has examined the government's 15 March 2013 Classified Supplement to Prosecution Response to Scheduling Order for 39(a) Session on Closure and Motion to Close the Courtroom for Specified Testimony. The description of the classified information the government seeks to elicit during the closed session for each of the identified witnesses is sufficiently specific for the defense to challenge closure and to propose reasonable alternatives to closure. Although the description of the classified information is sufficiently specific, the government has not provided the court with evidence of the classified nature for all of the classified information at issue to allow the court to properly apply the RCM 806(b)(2) test and to make appropriate case specific findings.

(6) One alternative that could mitigate the impact of closure is for the court to require the government to transcribe closed sessions. First, conduct the appropriate classification reviews of the transcribed record and to release the redacted of the unclassified portions of the transcript or the closed session to the public.

(7) The court has examined the classified government motion for in camera proceeding under MRE 505(i)(2) and the enclosures to include enclosures 10, 12, and 13. The court has held two in camera Article 39(a) sessions with the government to address defense discovery issues. The government proposes to give the defense a written copy of the government's proposed direct examination of John Doe and the anticipated responses in enclosure 10. The government also proposes to provide the defense a summary of relevant discovery, enclosure 9 in part and enclosure 13. The court finds that these disclosures are sufficient to allow the defense to place the witness in his proper setting.

RULING: The defense motions to require the use of procedures and MRE 505(i) for proceedings addressing enclosure determinations under RCM 806(b)(2) and for the government to provide more specificity to the defense regarding the classified information proposed for disclosure are denied. The defense motion to produce a "dry run" government merits witness to testify in a closed Article 39(a) session to assist the court in determining if there are reasonable alternatives to closure is granted. The government motion to permit a classified witness to testify under the pseudonym John Doe-- to testify in civilian clothing in light disguise and to testify in an alternative location in a closed session is granted, so long as the light disguise allows the defense to observe the witness' demeanor, body language, eye movements, and facial reactions. The government motion to limit discovery and cross examination regarding information that could reveal John Doe's true identity and preclude the defense from questioning John Doe regarding irrelevant and highly classified information including his training for specific classified mission, preparation for the mission, or details of the mission execution outside the scope of direct examination is granted. The court will set forth its RCM 806(b)(2) closure findings for this witness in a separate ruling.

ORDERED:

(1) No later than 7 May 2013 the government will provide the court with evidence of the classified nature of each of piece of classified information the government seeks to assert as an overriding interest justifying closure and of the draft order specifying the evidence for the specified classified information.

(2) No later than 12 April 2013 the government will provide the court and the defense a status update on the progress made to identify merits witness for whom the government seeks closure based on disclosure of classified information to be produced for a "dry run" of [missed word] testimony at the closed Article 39(a) session scheduled 7, 8 May 2013. The parties have identified several witnesses who would testify similarly but disclose different classified information. For example, Original Classification Authorities. The witness produced would be one of those "Categorical Witnesses". The witness will testify as he/she would at trial in a closed session to facilitate the courts determination whether there are reasonable alternatives to closure. Pursuant to RCM 806(b)(2), the court finds that closure of the Article 39(a) session is required to prevent disclosure of classified national security information from this witness, is narrowly tailor to closing only the outer court session intended to flush out the classified information involved and to determine whether there are reasonable alternatives to closure of the same classified information at trial. The court further finds there is no reasonable alternative to closure of this Article 39(a) session.

(3) No later than May 6, 2013, the government will provide the court with a plan for executing for expeditious transcription, authentication, classification review, and release of redacted versions of closed sessions to the public.

So ordered this 10th day of April 2013.

[END RULING AND ORDER: INTERPLAY BETWEEN MRE 505, RCM 806, AND US v. GRUNDEN, SPECIFICITY OF CLASSIFIED INFORMATION AND JOHN DOE]

Now as I said the parties and I met in an RCM 802 conference briefly just before coming in the court today and the government has already given the defense the discovery that I described in the ruling. And, Major Fein, you already said it once, but why don't you say it again. It may have more context now in light of the court's ruling what you gave the defense.

Prosecution (Fein)

Yes, Ma'am. The United States produced to the defense in hard copy two full copies of the three documents the court referenced, a portion of enclosure 9 of appellate exhibit 477; what is enclosure 13, a summary of discoverable information to the defense-- excuse me enclosure 13 of appellate exhibit 477; and then a complete copy of our proposed direct examination with the proffered answers that John Doe would give during his testimony that is enclosure 10 to appellate exhibit 477.

Judge Lind

Alright. Defense, you made a proposal to me in the RCM 802 conference, I want to make sure that we put this on the record.

Defense (Coombs)

Yes, Ma'am. We've had a chance to look at what the government has given us and based upon that we do have questions. We propose that we draft those questions in the form of an interrogatory-- have that for the government by the 19th of April; provide the government with a week in order to review that. If they do have an objection have them lodge their objection by the 26 of April; and if they do in fact file an objection then we will file a response by the 3rd and then--

Judge Lind

Is it the 3rd of May or the 1st of May?

Defense (Coombs)

I was giving myself two more days [missed a few words].

Judge Lind

Do you need those two more days?

Defense (Coombs)

I don't think so.

Judge Lind

Alright. You know where to find me if you do?

Defense (Coombs)

Yes, Ma'am.

Judge Lind

Alright, so the 19th of April then would be the interrogatories, the 26th would be the objections, and the 1st of May would be the reply. I have asked the government to build in an updated trial calendar-- our current trial calendar doesn't contain the session just at this time-- [missed a few words] as well as those additional suspense dates that we placed in here based upon my order and based upon what Mr. Coombs just said.

So, what we are going to do with that is the government will draft that that send it to the parties and myself via email and we will put that calendar on the record at the next session. Now the government, I have also asked the government for two draft closure orders-- one for John Doe and one for the three classified witnesses.

The government has provided be with a draft orders. I intend to take those orders-- go back and look at all of the exhibits and then come back with my decision with respect to closure for those four witnesses.

And I think as we already placed on the record, until we do that dry run on the 7th and the 8th and I get the additional evidence that I need from the government to make the findings for closure-- any findings from the court with respect to other 24 witnesses will have to be made till after-- until after that 7, 8 May session.

Is there anything else that we need to address before we-- I guess we recess the court for this entire session?

Defense (Coombs)

Nothing further from the defense, Ma'am.

Prosecution (Fein)

No, Ma'am.

Judge Lind

Alright, court is in recess then until the 7th of May, 09:30 once again?

Prosecution (Fein)

Ma'am I am sorry, but before we actually go on recess, with that rule the intent is we start with closed session on 7 May or would [missed a few words]?

Judge Lind

That is actually a good point. 7 to 8 May session is going to be right now the only thing we really have scheduled substantively is that closed session for the witness and if there are issues with respect to the interrogatory what we will do is we will address them first on the 7th when we finish and we open up and if there is anything else that arrives between now and then that we need to actually address, we will go ahead and go on the record in an open session. Based on what we currently have at issue, I don't anticipate that open session is going to be very long. So, we shall see.

Prosecution (Fein)

Ma'am just for clarification for all parties including potential spectators and the press. We will have an open session, but as of now expect it to a very very short open session and then move directly into a closed session?

Judge Lind

If there are no issues with respect to the interrogatory the open session will be to the extent of "Hello, the court is now in session. Present are anybody. Do we have any issues to address?" and if the answer is no we'll go into a closed session. So, that is what I mean. It may be very very short, but there are objections to the interrogatories. That will certainly be coming on. So, it may be longer than that. I don't think at this point I can put out anything more definitive than that. Perhaps, after the interrogatories have been drafted, and the government decides whether you have any kind of objection to that, maybe there is something that could be put out to the spectators and the media--?

Prosecution (Fein)

Yes [missed a few words] is that if during that period of time, if the parties agree with the court's concurrence that it looks like the open session would be this very short period, just administrative accounting moving right in that a public affairs announcement be made so the public would know that essentially it going to be mostly majority closed session.

Judge Lind

Defense, do you have any objection to that?

Defense (Coombs)

No, objection, your Honor.

Judge Lind

Okay. [Missed] do.

Prosecution (Fein)

Yes, Ma'am.

Judge Lind

Alright. Court is in recess.

ALL RISE