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 transcript of the Article 39(a) motions hearing held on November 7, 2012 at Fort Meade, Maryland in US v Pfc. Manning was taken by hand from the public gallery. It, therefore, may contain omissions or errors. All amendments or updates will be noted.
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
Lt. Col. Paul Almanza, the Investigating Officer at the Article 32 Pretrial Hearing
Mr. Bert Haggett, Security Specialist at Department of the Army, described by the Government as a expert on classification who reviewed the unclassified Army CID file.
Please be seated. This Article 39(a) Session is called to order... Major Fein...?
...Captain Morrow present... ...Robert Shaw (sp.)...court reporter...
...issues from last [Article 39(a)] session...26 October  telephonic RCM [Rules for Court Martial] 802 held. [Lind explains what an RCM 802 conference is.] At that RCM 802...logistics due to Sandy. ...scheduled 30 October to 1 November 2012... ...after RCM 802...sent email [to trial and defense counsel which consisted of a synopsis of the 26 October 2012 RCM 802 conference]...invited [trial and defense counsel] to give comments [on her synopsis].
[She then reads her synopsis email of the 26 October 2012 RCM 802] ...Government new case calendar. ...present [at the RCM 802] Major Fein, Captain Overgaard, Captain Morrow, Mr. David Coombs [she names defense counsel Captain Tooman and Major Hurley]...(1) ...Fort Meade cancelled school...[etc. This related to Hurricane Sandy]. ...(2) [Next Article 39(a) session rescheduled] to 7 and 8 November 2012...at 11 am EST...witnesses are available. (3) Col. Coffman will be testifying telephonically from Afghanistan for the Article 13 motion hearing, so he [won't need to stay for five weeks stateside, since he also testified for the Speedy Motion trial on November 8.]
[Defense then supplemented the Judge's account of her email synopsis of the RCM 802 for the Court record.] ...[Trial and defense counsel agreed] to work late on November 7 and 8 [to expedite issues before the Court because of the need to reschedule due to Hurricane Sandy.]
Court took Judicial Notice of Hurricane Sandy...national capital region...
Government provided notice...Major Fein?
On 22 October 2012, the Government provided notice to the Court and defense [regarding] DHS [Department of Homeland Security]. All information...was [consisted of] one document, approved redactions produced. [That notice is] appellate exhibit 378.
On 22 October 2012 the Government provided notice to the Court...appellate exhibit 364 [regarding Department of State discovery under MRE (Military Ruled for Evidence) 505(g)(2) review]...all approved limited disclosure would be produced to the defense, except for one that is viewable at the Department of State.
On 25 October  Government provided notice that three entities: FBI, DHS, and DoS [the Government had] captured documents for inspection or production to defense.
On 26 October  Government filed a 505(g)[(2)?] motion for classified...
...classified? [Judge Lind asked if the Government had filed an un-redacted motion for defense to coincide with any classified MRE 505 ex parte motions the Government files with the Court for limited disclosure of classified discovery. The requirement is per her previous ruling that the Government must file un-redacted motions for defense when the Government files ex parte motions concerning review of classified information for limited discovery.]
[Fein affirms that a un-redacted unclassified motion was filed for defense concurrent to the classified ex parte MRE 505.] Appellate exhibit 368 is the [Government's] ex parte motion. Appellate exhibit 365 is the Government's unclassified redacted [version] of the same motion.
On 6 November 2012, appellate exhibit 377, the Government provided notice on the status of the ONCIX [Office of the National Counterintelligence Executive] damage assessment based on a previous [Court] ruling [that the Government is required to do so.] The ONCIX damage assessment is finalized. The one that defense reviewed [which was considered a draft] is the same as this one [the one finalized by ONCIX]. ...There are no substantive changes.
...due diligence filings?
Has the Government filed anything additionally to speedy trial...? ...enclosure 80?
In the same corrected version...77, 78, 79 enclosures [Transcriber believes these were added or amended]...this morning provided (d) and (c). ...enclosure 80 to Government's response to speedy trial... ...this morning will file another to add a line to the corrected copy.
Defense, you said you were not moving to compel witnesses...?
Appellate exhibit 242 is defense motion to compel witnesses [for the Article 13]...and within...appellate exhibit 260 is the supplemental, and appellate exhibit 329 defense filed an addendum for additional witnesses. Based upon witnesses the Government agreed to produce, defense withdrew motion to compel witnesses.
Mr. Coombs, you emailed me is that marked...?
No, not reduced to writing...
The US will have the following produced: Col. Daniel J. Choike [former Quantico base commander]; Commander Hann (sp.) [This individual needs to be references and verified for correct spelling and position]; Col. Robert Oltman [former Security Battalion Commander at Quantico]; Captain William Hocter [Quantico Brig Forensic Psychiatrist]; COL Ricky Malone [Quantico Brig Forensic Psychiatrist]; Captain Brian Moore [Defense Forensic Psychiatrist]; Lt. Col. Dawn Hilton [Fort Leavenworth Commandant].
Defense provided Government 505(h) [requirement that the defense notify the government of any possible use of classified information]...?
Appellate exhibit 372...
...speedy trial... OCA [Original Classification Authorities] witnesses [that defense had previously requested]...[defense said] they would proceed via interrogatory [with the OCA via the Government in lieu of OCA as witnesses for the speedy trial motion. See October Article 39(a) Session].
...Appellate exhibit 370 is the defense interrogatories for the OCAs. Appellate exhibit 371 is the defense interrogatories for the Government counsel.
...Government, any issues?
No, we will meet with the defense today based off of some questions...
On 31 October, the Government [issued? provided notice it had issued? on] 7 November for OCA responses to the defense interrogatories...that has been marked...
...Yes. [Appellate Exhibit] 373.
Defense had no objection. On 1 November 2012, appellate exhibit 374 the Court ruled on interrogatory leave from the Government. Court deferred ruling on defense motion to compel [production of OCA witnesses for the speedy trial motion]. On 31 October  [Court granted Government] leave till 7 November . Defense did not oppose. Granted. So, by the end of today. Government will give me information on status of the interrogatories for the OCAs. Anything else regarding the interrogatories?
On 18 October  the Court discussed classified exhibits not accompanying records at trial. Court ordered the Government to devise a plan [that would require] one agency to custodian...for the appellate review.
On 25 October  Government requested leave until December to come up with a plan. That is appellate exhibit 359.
On 26 October  Court ruled on that. Appellate exhibit 362. The Court ruled as follows...detailed plan for appellate exhibits that will not accompany the record at trial...classified appellate exhibits...for appellate review...10 December 2012. Court granted...
...Defense filed a plea and forum at the last Article 39(a) Session. They have supplemented [that filing]...
On 25 October 2012...[transcriber did not notate what this was]... Appellate exhibit 361. On 26 October 2012 Court issued a clarification on the Court's 19 July 2012 ruling, [which was] appellate exhibit 219. The appellate exhibit for the [Court's] clarification is 366. Defense responded to certain questions. Defense response is [appellate exhibit] 375. ...Government has a time period before they respond.
Based on the submission...the [Court's] 19 July 2012 ruling on maximum punishment for Specification 1 of Charge II, 18 USC 641, 18 USC 793(e), and 18 USC 1030(a)(1)... [the ruling] never considered [maximum punishment for] clause (1) and (2) LIO [lesser included offenses].
On 23 October defense revised their plea and forum...offers pleas based on residual elements.
...Defense emailed the Court. ...19 July 2012 Court Order...misplaced...does not address [clause] (1) and (2) residual elements.
On 18 October  the Court...suspense...for proper plea and maximum punishment. 5 November [2012 defense] filing. 16 November  response. 23 November  reply.
On 27 November 2012 to 2 December 2012 the Court will address: (1) Is the plea the proper LIO or is it an amendment? US v. Morton (2010); (2) Assuming plea is acceptable [to the] the Convening Authority what is the maximum punishment? US v. Beatty (2011)
Court has the defense filing, and the Court will address proffered pleas.
...[MRE] 505(g) classified motions...Government address substance?
[Appellate exhibit] 368 is the original ex parte. [Appellate exhibit] 365 is the unclassified [motion for defense as per ruling described above.] MRE 505(g)(1) and (2)... ...(g)(1) is voluntary disclosure of information...(g)(2) is authorized substitutions.
Government filed three pieces of digital media. Information contained on the media...[the motion concerns] access to the digital media...so only certain portions.
Unclassified redacted...no information...but for the four digital files from three pieces of digital media. In addition, asking Court for redactions of two files...only relevant portions...want approval from the Court.
Prosecution asks the Court to additionally for a protective order enforced only when the defense conducts its forensic review.
...protective order...reviewed in the presence of security experts.
...hold off on Government's request. Defense and Government are going to talk about the nature [of the request]. Once we talk to the Government about their request...
Does the defense have an objection to the motion...?
We have made it available for their forensic evidence [expert]...
Protective order [concerns] metadata of these exhibits under the Government's parameters...?
We want to understand what they are limiting and how they selected that. We don't know. Did they receive all this other information to make that determination? So, I would like to speak to the Government counsel.
The second, the nature of forensic parameters allows defense to conduct review... Initial confusion...how they selected the information.
Protective order going for metadata...?
Both. These four filed and metadata...recover information from...they could look behind [due to the nature of forensic examination of digital material]. You can look at the substance of the two files, but not the metadata.
Prosecution proposes one of the industry standards...called privileging. ...but for those four files [which] would be privileged out...would not be able to view the content.
...forensic expert could look at content behind redaction... [Fein explains a that if they gave defense another version it would alter the evidence]. ...Government has chosen not to alter.
Defense, I understand you want to talk [to the Government counsel about this motion], but what I am looking at is looking at [is defense viewing the evidence] under the protective order...then [defense] asking for an amendment...
The problem...they have three files [digital media]. They pulled four files... Two [files] we can look at completely. Then they want a protective order for the other files.
Our expert doesn't want to use the program. We need to find out... ...the Government felt that the FBI file was not relevant, damage not relevant... Once they selected four pieces...they want to limit by particular program. If we talk today, we can address tomorrow.
Process in unclassified... They [defense] have had these files since August. Defense has three digital media. Two files do not have redaction... Not an issue.
Two other files provided [are] redacted. Two documents. The Court has a redacted version of it. ...505(g) not in response... ...since Government has not applied for behind redaction. Two files, are not documents. 2 document are in redacted form.
...wrinkle of three digital media...
...analysis of those pieces of media at issue...
...you can't tell them [defense] how [other files are] not relevant...
...[Government conducted] multiple types of searches, did not find Brady.
Can you tell defense what search terms you used?
Don't know [if I can answer that question in that it is classified]. Have to get back to you.
...two other filings. 26 October 2012...next volume of speedy trial...Government is going through defense stipulated chronology by tomorrow.
[Appellate exhibit] 369 is the defense speedy trial chronology. On 26 October [2012 appellate exhibit] 367 is classified filing, the Government's updated witness list no. 2...the result of defense [asking for] more specificity...additionally under protective order MRE 505(h). That is all [the] filings your Honor.
Defense filed an MRE 505(h)(1) motion through the Court Security Officer [which had a deadline of 16 November].
...hasn't been marked yet.
...that will be marked as classified information?
The US will call Lt. Col. Paul Almanza [the Article 32 Pretrial Investigating Officer] telephonically, ensure connection. Then [there will be a] lunch break. Then Bert Haggett (sp.) from the Department of the Army G-2.
The remainder [of the day can take up administrative issues]. [Tomorrow] the US will call Col. Coffman to take his testimony.
...ten minute recess.
Please be seated. This Article 39(a) Session is called to order...
US calls Lt. Col. Paul Almanza. [telephonically]
Lt. Col. Paul Almanza
Yes. I am.
You are on the record...
Please stand up and raise your right hand...do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
You are Lt. Col. Paul Almanza?
Social Security Administration...? Currently at the office at the Social Security Administration with the door closed...? No notes...?
Military career overview...?
ROTC...joined Army reserve, military intelligence officer...five years... [he recited his resume included him become a military judge shortly before being #Manning Article 32 Pretrial Investigating Officer] ...May [year?] transferred back...
Active duty position...?
Judge advocate...appellate...number of years...INSCOM [US Army Intelligence & Security Command]...SJA office joined reserves...law clerk, then 2010 reserve military judge.
Number of court martials?
6. ECE [?]. All guilty pleas. Military judges course three weeks.
Course executive duty...? [This was not clear in my notebook.]
Administrative law judge [I need to verify this], Social Security, since September 24, 2012.
Department of Justice, 10 years. Trial counsel and Deputy Chief 2007 to 2010, Chief of Staff Office of Legal Policy..., in February 2012 detailed to child exploitation in the Deputy General's office.
You were the Article 32 Investigating Officer. Did you have a security clearance...?
Had one. Read on ["Read on" means receiving clearance briefing indoctrination necessary for access to a program, network, mission, system, or operation, according to Thomas Drake.] for this case.
...submit [your Investigating Officer Report with recommendations] to the Special Convening Authority?
Where you active duty during the investigation?
..on orders from time of 12 December 2011 until [missed], 3 January to 6 January on active duty status. Not on orders, active duty 9 January to 11 January 2012.
[When you were on active duty were you] still at DoJ [Department of Justice]?
Correct. Deputy Chief...Child Exploitation.
[Which days did you] exclude...?
Three days around Christmas. Two day weekend and Holiday. Two days around New Years. Weekend and Holiday. 8 and 9 January work days.
First executable delay?
24 December to 2 January 
What did you do on 23 December?
...classified evidence was provided on a lap top and only on that lap top at MDW [Military District of Washington]. Chief [Ford ?] was down there, and secured on end of day in a safe at Fort McNair. Evidence all on classified laptop.
[You had two executable delays] on 27 to 30 December  and 31 to 2 January , a federal holiday. What were you doing on 27 to 30 December?
Working at the Department of Justice.
Why was that necessary, even though you had an assistant, for you or your assistant to be working at the Department of Justice?
[With] policy and legislation work there aren't regular deadlines. ...necessary for someone to be there to cover the portfolio.
Did you notify your boss that you were on active duty?
What were your work hours [at the Department of Justice] on those days?
9 to 5.
How long was your commute?
One hour door to door. Get home by at least 6:30 pm.
Briefly talk about the review process at Fort McNair.
Evidence was contained on classified lap top. Significant amount of the evidence was classified. Organized by Government into categories. As I was working on the report, which was rather lengthy, I would review evidence, dropping a lot of footnotes.
How much evidence?
...only cases as a military previously are [DCD or ECE?] cases. Evidence [in this case] was extremely voluminous.
When you reviewed [the evidence] how long did it take?
Less than 8 or 9 hours.
Why did it take so long?
A lot of things to go through.
On 27 to 30 December you were working at the Department of Justice. Ever review [the case or the evidence] before or after work?
No. Only at MDW [Military District of Washington].
Your second executable delay was on 7 to 8 January. Did you work during those days?
No. My son had a swim meet.
You said that you had [presided] over 6 court martials, all guilty pleas. [How did this case compare in complexity?]
[The case was] complicated. ...the investigation and report.
Are you vaguely familiar with charges?
Yes. I can generally recall.
[Are you familiar] with the elements of the charges?
[Are you familiar] with the charges regarding classified information? [If you learned that the charged information was] unclassified [would it] change your report [to the Special Convening Authority]?
[The classification of the information charged] had relevance.
[Concerning] relevance, defense alleges someone could have testified in lieu of a classification review...
...How relevant were they?
We will withdraw.
...if the question is live witnesses as opposed to OCAs...since... [missed]
...Is this an expert witness?
...what he believes he would need?
If the classification reviews [showed that the charged info was not classified] would it have changed your report?
Would he consider a live...
...hypothetical...came to testify that the information [charged] was not classified, would it have changed your report?
I believe that classification was an element. Yes [it would have changed his report].
[PROSECUTION ENDS EXAMINATION OF LT. COL. PAUL ALMANZA]
...executable delay in an email to Major Fein [that on] 23 December  to 3 January  that you did not work.
...prior to [sending] this email did you have a discussion with Major Fein? [not sure if this question was transcribed accurately]
...any trial counsel or Government...? [missed full question]
...executable delay under RCM 707(c)? [missed full question]
...23 December  to 3 January  where you did not work?
Did not reach out to defense [before drafting this executable delay]?
Did not consider defense's position?
[You gave] no reason these were days you did not work on the case.
...memorandum chronology...24 to 26 December, 31 to 2 January...?
This was basis you gave?
[JUDGE LIND INTERRUPTS.]
31 December to 2 January.
You excluded 7 and 8 January?
You had never done an excludable delay [before this case]?
Prior to 11 January, never sought defense input?
...say nothing about military order?
Gave no basis?
4 January email...11 January email, you gave no reference to your civilian employer requiring you had to go to work.
27 december to 3 January...[you could have told the Department of Justice] out of office, can't come in.
I could have.
In retrospect you should have...
...if you didn't go in [to work at the Department of Justice], you would have...3 to 6 January...7 days?
...23 to 3 January more than 7 days. Finished your report on 29 December ?
I believe so.
Trial counsel asked you...deadline [for Investigating Officer's Report] 16 January?
you turned it in on 11 January?
So, you did not need the entire time.
I did not need until 16 January.
23 December...no need for additional time.
Certain information was not relevant, you ordered...?
[Regarding] what you considered as the Investigating Officer... [as in what were relevant]...classification reviews?
...to [make sure information was charge properly for being] classified?
Government could have called a witness to testify [that the information was classified in lieu of having to wait for the Classification Reviews]?
I would assume so.
If the Government didn't have Classification Reviews and called witnesses you would have considered their testimony?
Review any unclassified forensics?
Considered classified reports?
Assisted you in [missed]?
If you had agents instead of forensics had made it more difficult?
Yes. ...much more difficult without forensic reports.
...don't want to go forward?
...if was accurate would have gone forward.
What date were you read on as the Investigating Officer?
January of February 2010. I was a long time ago.
Read on as the Investigating Officer in January 2011?
Maybe January 2011.
When were you appointed [as] the Investigating Officer?
From August 2010 to January 2011 to be read on?
I do not know the cause, the following January got read on.
When did you get your TS-SCI clearance?
Missed. Read on very quick. Within weeks.
So between August 2010 and January 2011...nothing was done to get you read on.
[DEFENSE ENDS CROSS EXAMINATION OF LT. COL. PAUL ALMANZA]
[GOVERNMENT RE-EXAMINATION OF LT. COL. PAUL ALMANZA]
Defense cited [your email to] Major Fein...?
That you did not work. Did you send that email to defense counsel?
All parties were cc'd on the email.
Did defense object?
No further questions.
[GOVERNMENT ENDS RE-EXAMINATION OF LT. COL. PAUL ALMANZA]
[DEFENSE FOLLOW UP EXAMINATION OF LT. COL. PAUL ALMANZA]
Yes. You responded back on the 4th...excluded any days...you indicated range but not exact day...?
[JUDGE LIND EXAMINATION OF LT. COL. PAUL ALMANZA]
What were the days of the hearing?
...its in the chronology memo. Saturday, 15 December to Thursday, 22 December.
Any plan if hearing was to go beyond...?
Early on discussed potential, but after [considering his decision on witnesses felt] we could get done by 22 December.
[JUDGE LIND END EXAMINATION OF LT. COL. PAUL ALMANZA]
[LT. COL. PAUL ALMANZA IS DISMISSED]
US recommends we take a lunch break until 14:30
[Judge Lind recesses the Court.]
US calls Mr. Bert Haggett
[MR. BERT Haggett IS SWORN IN]
...Department of the Army G-2?
[If any of the] answers [you give are] classified, please notify the Court.
Information Security Policy and Army litigation support.
When did you start working for the Army?
...in a G-2 capacity?
What are the duties of a Chief of Information Security Policy...?
...promulgate information security throughout the Army.
Support of legal counsel.
...civil and criminal?
...Army contacted by federal law enforcement when classified information is released.
FOIA [related litigation support].
What is the primary information security regulation for the Army G-2?
Information [Army] Regulation [AR] 380-5
...role Deputy Chief of Staff to Intelligence...?
What is classified information?
Under Executive Order 2935...the current Executive Order regulations for protecting...
[Haggett cannot remember the number of Executive Order 13526 regulating classified information for the USG.]
What kinds of information?
Sources and methods. Weapons of mass destruction. Foreign affairs. [Missed. He names a few others.]
Executive Order 13526 promulgated...?
...within the Army AR 380-5.
Three levels: Confidential. Secret. Top Secret.
Who makes the decision if something is classified?
Original Classification Authority [OCA].
What is the OCA position or rank?
Within the Army, Major General.
[Is] every two star general an OCA?
...designated by position following need.
Highest level OCA position?
Secretary of the Army.
A single document can have more than one OCA?
Single paragraph can have more than one OCA?
On a daily basis, how does an individual know if a document is classified?
...necessary [for the document] to be marked...marked top and bottom [missed]
...holder required to assume classified?
...if so marked.
...protected as such.
...creator...know whether information is classified?
...if you are writing a memo in response [in the instance that the] original is marked as classified you would bring forward that classification.
can you use another method?
...use a classification guide.
...bring classification forward?
[He uses the example of a slide deck] ...derivative classification, derived from another slide.
Generic examples of the types of documents...?
Could be memo, slide deck, email...
What is derivative classification and security classification guide?
...instruction by an OCA that is meant to serve as instructions.
Thank you. Establishing an example for the purpose of this testimony. Assume a blue ink pen is classified. If it is, how would I know about the pen being classified or go about writing about it?
If the pen contains classified data, [it is the] decision of the OCA...put out instructions what about that pen is classified...if it is the length of pen, how long the ink would last...
Thank you. You spoke of the OCA. Explain how information is originally classified?
...decision made by individual, delegated OCA. ...any designation follows out from the EO [Executive Order in this case 13256].
Basic rule is that Government has propriety of the data...what level... Must fit into a category: Weapons of mass destruction. [He lists all the categories.] ...sunset on classified information...declassified at a certain time. ...control. ...must in order to ensure data in our control... ...require trying to make sure. No control...no need to classify.
Not necessary. Generally made by OCA.
...how do you determine if promulgated?
In a classification guide, and document must be marked.
...classification review process. What is a classification review?
A classification review is done by OCA to see if information is really classified.
...authority derived from the EO [Executive Order]?
Does the OCA conduct entire classification review?
No, unlikely. Staff...
Could be security staff, subject matter expert, technical data [by technical experts], counsel may also review.
Can any subject matter expert make final determination?
Personal experience [with classification review]?
When is a classification review started?
In my experience at the request of counsel.
Not routine in the Army or Government?
Generally such requests are requests when classified information is part of a legal proceeding.
...end of process what are the end products or deliverables?
...written justification from the OCA.
Yes. Could be email, less formal.
...example from before, the pen, assuming classified. Start with the process. counsel comes... [what are the] steps?
Step one refer document to original classification authority responsible for the pen.
How do you figure out [classification authority responsible]?
Could be letterhead. The command that issued it. ...belonged to a specific agency, etc.
Can anyone conduct the initial review?
Takes experience knowing what to look for.
... [missed]...what do you do then?
Refer it formerly to equity holder with request to do a classification review.
What is referred?
In this case, taking that action, and formerly transferring to the organization responsible for the pen.
Generally formal. EO [Executive Order] requires it.
Review of classified information by same OCA that classified it...
So, multiple steps. [Step] one, to determine equity holders, for example, of the pen. What happens next?
OCA organization would review information in question and work to identify what belonged to them.
If they identify the info not belonging to them, then what happens?
...not belonging. They have good reason [to believe]... ...they are responsible for subsequent referrals.
So, a document with many sources could or would have to be passed forward to all OCAs?
Normal average length to complete a classification review?
not sure could say.
Complexity of information. number of OCAs involved. Availability of staff to review.
...what you mentioned before. [missed]
Secondary referral will come back to you and you can re-assemble.
...if you have to do with multiple [OCAs], at that point you need to report all findings out. list ideally with paragraph (1), organization (b), paragraph (2)...
How frequently are classification reviews at the Department of the Army?
Department of Defense?
[Is there a] regular or Army command dedicated to conduct classification reviews? [Transcriber is not sure if this question was transcribed accurately]
Not my experience.
...no dedicated individual?
Where are they gonna come from?
Are classification reviews required?
Required [to determine] if information is correctly classified...to get to that point.
Necessary if OCA is testifying?
Process needed no matter how reported out.
Can anyone other than OCA say if it is classified?
Why across Government...?
...direction of president's EO [Executive Order]
Are you familiar with the case [meaning this case]?
Yes. Asked to provide advice for grabbing documents from different OCAs.
...types that make up classified information [in this case]?
Intelligence. Military Plan Operations.
Form of classified information [in this case]?
Documents, slide decks, various forms of information...
...types [of classified information in this case] for law enforcement.
There were I believe intelligence within them.
...info you were exposed to more complicated than typical?
yes, because of the volume, and also some of the information multipage, multisubject, multiple OCA...than a one page document.
Why does increased volume make a difference?
Staff to do initial classification reviews is a finite number. OCAs have their own process, but if dealing with people who specialize in security or technical area, only so many people you can call on.
So substance of slide deck...referrals...?
Different organizations have to do the review.
you looked at many documents within the Department of the Army?
...outside the Department of the Army?
...outside the Department of Defense?
[Would the classification reviews] requests [in this case] be different [in terms of the time it would take]?
I believe it would take more time because more pages.
Are you specifically familiar with the unclassified CID case file [in this case]?
[Can you explain] examples of the types of documents [in that case file]?
Sworn statements, exhibits, other investigation [files?],. I was asked to screen to render [operation?] in accurately described as unclassified. [He is saying that he conducted a disclosure classification review to determine if the investigative file was in fact unclassified, meaning did not contain any classified information. ]
How many documents were contained in the CID file, more than 500?
More than 900?
Yes, I believe so.
Why [did you review the CID file]?
To ensure document didn't contain classified information.
...but CID kept [and the file was marked] the file was unclassified [so why did you need to review it]?
Did you identify classified information in the CID file?
Yes, I did. ...was sub referred to [appropriate] organization.
Who did you suggest that to?
Any familiarity with CIPA [and MRE] 505...?
Yes. ...on several occasions employed.
What are substitutions?
Substitutions are entered in place of classified information.
What are the steps for substitutions?
...in general determine what is needed to be substituted, identify what is sensitive...
Are substitutions or [?] produced with Classification Reviews?
No. ...while point is to come up with unclassified substitutions, [to do that one] needs to determine what is classified.
So, just redacting doesn't speed up...?
AR 380-67 promulgates policy for security clearances for different [courses?].
Who is authorized to grant security clearances?
380-67...who in the Army [grants security clearances]?
The G-2 in the Army.
So, Army G-2...to defense counsel, does that mean any specific [request can be grant]?
...approval of the OCA.
...apply to documents [in this case]?
[PROSECUTION ENDS EXAMINATION OF BERT HAGGETT]
[DEFENSE CROSS EXAMINATION OF BERT HAGGETT]
[You said that you were responsible for] referring the documents in part [in this case to appropriate OCAs for classification reviews]?
...signed referral yourself?
...signed by G-2?
...suspense [date] not included in referral?
...more of an issue, case was of obvious importance, at the same time, counsel was also in touch with staff offices.
...so different lines of communication [?] security person?
...and counsel talking to others?
...any instructions in referral?
...request was for a classification review?
...no deadline established?
Generally speaking deadlines are included?
In my experience, no. Something communicated directly to the command [responsible for the classification review]. Understanding...[missed]
..no requirement in regulations about an accused?
...was in my communications.
Regarding OCA, ad hoc with staff already assigned [including] security experts [technical experts, etc.]?
...can take as long as they want?
No hard deadline, no ambiguity as to do this properly, efficiently...
Would it be reasonable that a classification review take four months...?
...would not be unreasonable.
...a little too long.
Informally to long for a single referral?
Depends on the information. Hard to determine...exceptionally complicated, may not be.
Two years to long?
If you are talking about one document with two or three classification authorities,should be done in that length of time.
You were doing classification reviews with Department of the Army, Department of Defense, and other federal agencies, they could be given [suspense dates] when should be done?
Yes. I suppose. My function, by and large, is to get the review accomplished.
Department of the Army is in the business of giving orders and having them fulfilled...?
[Could the equity holders hire more staff to complete the classification reviews more quickly]?
...may not expedite. [Individuals] have to be familiar with the information.
Those people are available.
No. Not in my experience. I am uncomfortable with [the term] reasonable. ...it is the process to be carried out as required under the EO, and there is no [variation?]. Sometimes that takes time. Sometimes maddeningly long. Requires a specific process.
Skipping to federal end, if you see a document is classified; and the review is not complete, could you not do substitutions or interim process?
That would give you a fasle positive. If the requirement is to deal with classification, you have to deal with that. Is the information classified or not? More than looking at the markings on the documents or unclassified substitutions. ...three paragraphs that are marked classified. What do you substitute paragraph to paragraph? ...no real determination, only real alternative [missed] and to try to change that.
...but possible to look at review and produce a [missed]?
Yes. Physically possible.
How long did it take you to review 900 document review?
...and after four days, you sent to equity holders?
Do these equity holders have staff?
From a policy perspective, yes.
You said you deal with civil litigation?
Once in a while. FOIA litigation. If the FOIA litigation deals with classified information.
You said you worked in federal criminal litigation, ever in a court martial?
...one with an accused in pretrial-confinement?
[DEFENSE ENDS CROSS EXAMINATION OF BERT HAGGETT]
[COURT EXAMINATION OF BERT HAGGETT]
Court has some questions.
How many OCAs are there?
Through out the USG, 2000.
Within the Department of Defense?
...in this case 176 OCA involved in this case?
Estimate two or three possible referrals came back.
When G-2 refers out to OCA in the Army to arrange for classification review, can [you] set suspense?
Practically we could, when I do one. Never felt need to go and ask for one. Fairly rarely one I did. With 2 or three classification authorities took additional time yo do the review in question.
How long in that case?
When involved in FOIA, did the Court put suspense dates [on the classification reviews]?
[Maybe] down the line...only suspense dates are dates established by Court, when production notices needed...dates applied counsel would need to renegotiate them.
In classification reviews, if you have something marked, OCA already determined, why another review?
Assuming marked appropriately. Document could be two years old. ...that requires formerly...is the information properly classified. The main issue...classification does time out, [could be] overcome by events. ...get baseline is it classified.
How many OCA's are in the Department of State?
Department of State has a very large number. Several years ago [there was policy or legislation] to reduce OCAs and if I remember brought number down by over 2000.
They have more than?
[Department of State] has the lion share of what is left.
Have any idea how many OCA's at the Department of State were involved in this case?
...mandatory. Baseline training that was be met in order to classify. Runs through regulations.
Some kind of formal training...?
Different. [Self-service?] Online Course. Desk.
...required for completion?
Require staff to train in derivative classification. Many agencies develop their own.
Did you do all the referrals in this case?
As I recall, I identified the organizations needed to be involved in the data. Don't recall if I packaged [all] the data up.
So, after identifying, you looked at a, b, c, d, e, and relayed that to trial counsel?
Counsel and judge advocate...
...they take over?
...not done...that portion...subsequently talked to OCAs, processed questions [missed].
Who was responsible for tracking referral for making sure they were complete?
Not sure of the answer.
Do you know how long it took?
When defense counsel asked you about one year versus two years for a single document example, ever work on a case of this volume in FOIA litigation?
Was this the the most complex case you have been involved in compared to the next?
[This case is] probably well beyond. [Transcriber believes he recounted that when he came into his position,] one of the first things I did was take over FOIA litigation...in this case by way of volume...[other case was] paper copy that had a number of different OCAs, number of different executive [brand?] agencies. This was a different case by sheer volume...[missed] operations, intelligence, counter IED. Bulk impressed me to make sure it gets done properly.
These FOIA cases, how long can they take?
Over a year.
You testified that you reviewed unclassified CID file. In beginning, what was the criterion. [Case file] was owned and closely held. If the case file is unclassified, how do you know already approved...?
You don't. In this case law enforcement asked to look through to make sure it was not an issue. When I have been asked in the past [to review law enforcement files for classified information] I know from experience, in sworn statements to pay extra attention. Very often if law enforcement is speaking with an individual sometimes information gets into those statements that shouldn't. My experience is what I...should be properly marked. This is one that got missed. Had to make sure properly marked and protected.
What is the process that occurs under CIPA or MRE 505 for disclosure or production with substitutions?
My experience once that is by and large the greatest is the Noriega trial...transcript of a closed session...once we reviewed if they had classified data...look at information...look at unclassified substitutions that would communicate what was being said.
We? Who else?
I was sitting with individuals from the Department of Justice. I was there to represent the Army. Others were around the table. [Our job] was to develop something both unclassified that stayed online with the sketch.
Who approves? Any approval from equity holder?
What approvals are needed for substitutions?
By way of approval needed for function...needed to perform. ...then say, "Go forth." In many cases we were able to develop unclassified [substitutions]. They were watered down...have to careful where individual names are redacted, if those were a part...[missed]
[Missed]...going to need access to any intelligence required when accessed by someone other than that has been pre-approved holding FBI, and that information was pertinent before...would get information and go back to the FBI...here are the documents that need to be transmitted to counsel asking permission.
Would it require the OCA approval?
By and large, understood and stated data will be used with security clearances and reviewed in a SCIF.
...time period by regulation?
No. Handled in my experience in the different channels.
In your involvement...who needs to be contacted?
In approval stage...[missed] here are these organizations.
Then after that who takes it?
Litigation counsel communicated with the counterpart at the agency for example with FBI [general?] counsel.
If someone is exposed to classified information [that shouldn't be classified] what are their avenues of [redress]?
...[process described] within the EO...challenge to be made outlines process that would occur.
Any involvement in Army CID forensics...? ...November final forensic reports. 20 classified forensic reports from CID? ...any involvement
No. Not that I recall.
[COURT ENDS EXAMINATION OF BERT HAGGETT]
[PROSECUTION EXAMINATION OF BERT HAGGETT]
...referral by agency to the equity holder, explain the requirements described... Who or what entities...[missed]?
...somewhere in the office of Staff Judge Advocate or legal counsel.
Who were the requestors?
Judge Advocate General Office.
Required to initiate referral?
Don't know. Yes. Would be formally transferred for classification review.
[Missed] best of your General Counsel US Army classification review?
You are simply a consultant?
Required or wasn't?
In this case required.
Who requested that?
Came from Judge Advocate General's Office.
You initially testified that law enforcement review your role?
I will take the request and refer it to the proper OCA.
You referred under EO, and requested to do a classification review?
If requesting as a consultant, what role [did you play]? Referral or advice?
Provided advice to Staff Judge Advocate Office, if I remember correctly, HQDA Op. JAG...
Did you offer advice to trial counsel in this case?
Are you aware if prosecution or a proxy at Op. JAG [?] substitution request?
I believe they did.
Familiar with OCA?
Which one within DoD?
CENTCOM, SOUTHCOM, GTMO...
Different agencies in executive departments?
Any referrals for charged information in this case?
No role in that process.
CENTCOM, SOUTHCOM, INSCOM
Referral by someone...to the best of my knowledge who should receive those...
Your Honor. Would like to pull [appellate exhibit] 339, enclosure no. 2...defense motion...different requirements for classification reviews.
[MAJOR HURLEY ASKS TO CHECK THE DOCUMENT THAT FEIN PULLS AND PROVIDES FOR WITNESS]
Mr. Haggett, privy to different regulations with Op. JAG...? [not sure if I transcribed accurately]
I may have...
Would anything help you remember...? Handing you enclosure... Look over.
[MAJOR FEIN HANDS BERT Haggett APPELLATE EXHIBIT 339 ENCLOSURE 20]
We were talking about the different between referral and review? Who requested classification reviews in this case?
CENTCOM, GTMO, SOUTHCOM
...those entities did they receive "referrals" or "requests"...?
I am having an issue [with the question the terms are] interchangeable to me. Frankly don't recall events.
Explain diference in terms, when you speak of referrals. Referral is formal; request [means] to do a review from an agency...or agency to agency...
[When you] do a review then that OCA if their equity is involved...
...then return to appropriate classification authority...
Going back to litigation support. Law enforcement is a referral or request?
[Missed. The semantic distinction by the prosecution was not corroborated in a heartfelt manner by Haggett. He explains that he uses the terms interchangeably. He concedes by going along with the prosecution on their distinction in the terms.]
...referrals to an agency...?
...as far as referral or request, didn't do either on this case?
My experience more efficient to involve appropriate counsel...get proper attention and focus...getting [?] of legal counsel; SJA [Staff Judge Advocate] or command counsel.
...happen to be that attorney working on that litigation, or referring to agency not expecting it...counterpart at that other agency...clarification
[Depends] based that on FOIA. Similar actions normally go into pipeline. Born out by legal requirements, tends to get better reaction if all appropriate counsel are involved.
Suspense dates. Suspense dates on any...?
How many OCA's involved in this case...?
Two or three.
Main OCAs were CENTCOM and SOUTHCOM. HQDA have tasking authority for suspense [dates]?
Department of Defense have tasking authority for suspense [dates] to other agencies?
Did [requests] from trial counsel have suspense dates?
There was a request to have them done by date.
[PROSECUTION ENDS RE-EXAMINATION OF BERT HAGGETT]
[DEFENSE CROSS EXAMINES BERT Haggett AGAIN]
When were you first contacted for United States v. Pfc. Manning?
...request with prosecution what of [missed]?
No. Front a standpoint of [?] the WikiLeaks issue occurred, I lived and breathed it for a very long time. Reissued policy.
When do you recall having "it" happen?
Do not recall.
Would it surprise you [the first request] was in 18 March 2011?
June 2010...none months later...
Some discovery required referrals or requests, what have you, you don't know why it takes as long as it takes?
Don't know how many people working?
No idea as to inattention?
...malfunctioning computer disk?
...significant groups involved...?
Operational Information. Intelligence Information... June 2010 what does an OCA do when information has perhaps been compromised?
Several forms. Depends on the organization.
AR 380-5 regulates that if there is a discovered leak that an inquiry is done. In this particular case, I don't know if OCA did preliminary inquiry. OCA involved may have been focused on what happened with them if anything needed to be mitigated.
How do you determine duration of classified information?
In EO...baseline sunset, general guidelines on how to apply.
Classified information must be marked with a [sunset date]?
Yes. When a classification authority is doing a review [at five or ten years] determined SECRET...[then when it no longer needs it is] stamped and unclassified.
Yo mentioned before that you were involved in a FOIA litigation case that was "4 inches thick". That case was in 1988 before the computer revolution? You probably didn't have a computer...?
[Haggett says that he had a computer. Defense or Haggett said "most people at the time did not have computers."]
None of your FOIA cases involved an accused in pretrial confinement?
Yes [as in they did not involve an an accused in pretrial confinement.]
What is the entity that the OCAs are responsible to?
Joint Staff Department of Defense.
...executive...everyone has a boss.
...purposed of the OCA review...?
...[to determine] if currently classified.
...official process [regarding information] that has been disclosed...[inquiry concerns if the information] was classified at the time of disclosure?
...can't be sure or you can ask for determination was document originally classified correctly.
...whether or not classification properly go back to origination and creation and current...
You can determine if classified at a particular period...?
...was it classified at time of release.
...no official requirement?
Policy outlines that [classified] information that makes its way into the public domain does not change classification. If [there is an] unauthorized disclosure there is a process, a preliminary inquiry. Should be conducted to determine what happened. In both the Army and the Department of Defense a preliminary inquiry is intended to deal with a low level incident or infraction...explicit in this case...others were already investigating, no need to do a preliminary inquiry.
...all that is guess work?
No, because I was aware at the time, all OCAs were aware that the unauthorized disclosure is being investigated.
Whether classified at disclosure...record made at the time [of disclosure the information is] classified?
Describe the process.
If I am working from a classification guide in 1990 that a document needs to be classified. I will follow the guide.
You? As in OCA?
I am using.
Anyone with a clearance can classify information?
Assume someone with a clearance classifies anything they see?
There are prohibitions when [classified information should be classified]...not working from this would not be applied...if the question asked is information currently and properly classified in real time, was classification reasonably classified at that creation and now.
When the OCA originally classifies information is there a record?
record woud be classification guide itself. [Gives an example of] Night vision...certain information dealing with the devise needs to be classified. Only that which is classified is marked...[rest] is unclassified. That would be the best record... ...OCA determined that some information should be classified.
...the classification review...necessary to see if derivative classification? Would you need to determine if original classification is classified? Wouldn't that be enough [in terms of this case?]
Classified information one year later...to confirm that...that reverse process...did I apply that classification process properly...confirmed by OCA.
...derivatively classified. It would surprise me if much of it had not been derivatively classified.
...unauthorized [missed]...classification review part of that?
Have to be?
No. Inquiry can be as simple as [missed].
Difference between referral and request?
I use interchangeably.
...is there a distinction?
...distinction would be within EO [Executive Order]. Term referral use in order to communicate with an OCA, whose classified data...needs to make judgement...[gives an example] I need to speak to J2 [J2 Joint Staff Intelligence] of CENTCOM.
Simple request, that whoever...working [can] action.
[DEFENSE EXAMINATION OF BERT HAGGETT]
..actual unauthorized [disclosure] would not require...?
It would, but preliminary inquiry would apply to a security infraction.
[DEFENSE ENDS EXAMINATION OF BERT HAGGETT]
After consulting CENTCOM, SOUTHCOM, any other [OCAs involved], did you have any other involvement at all in regards to classification reviews or approvals
Latter. No. Former. Some contact during the review process.
...what was needed...what I recall...those who were working at CENTCOM performing proper process...if they had process questions...made aware...
...may come and ask, we have had it reviewed by security experts and subject matter experts, does anyone else have to see it? [Haggett gives an example that the information may be recommended that a mechanical expert look at it...]
Did you have frequent or sporadic contact?
[DEFENSE LEAD CIVILIAN COUNSEL EXAMINATION OF BERT HAGGETT]
you said that most of the information in the case was derivative [classification]?
Are you familiar with Department of Defense SigActs?
...from CENTCOM, yes.
...familiar with how it is created? Unit then report, and then formerly up chain, then CIDNE?
No. Derivative with that process.
CENTCOM classification guide, if I recall. SigActs were to be classified at a specific level for a specific time. That is what I mean by derivative. As long as his...
CENTCOM guide...all SECRET...that is what it says?
Familiar with detainee profiles...?
Familiar with the process created [for detainee profiles]?
When you say derivatively [classified] from the classification guide, deriving classification from the guide...creator of the document...that classification is SECRET? Then other bits, PowerPoint or video involvement...?
That stuff would be typically derivative...?
...Same as slide deck, IEDs, could be a number of classification guides...
...if I was using a slide deck on IEDs [Coombs is basically asking for confirmation from Haggett previous testimony that within that deck one slide has] blocks of information...discrete blocks of information...?
Yes. I believe.
...[Department of Defense has a ] few hundred OCAs, most are within the Department of State?
Department of Defense documents [in this case] vast majority are SigActs...take out SigActs...detainee...? Lion share are SigActs?
Under your presentation yes, not my experience.
IED's, intelligence reports...may not drive what is...
You would not say or would [vast majority was] SigActs...?
Can't say that. Don't remember it being SigActs... [missed] ...I remember it being significant amount of data...
[DEFENSE LEAD CIVILIAN COUNSEL ENDS EXAMINATION OF BERT HAGGETT]
[COURT EXAMINATION OF BERT HAGGAT]
...SigActs you have blocks of similar data...how does that impact classification?
SigActs or SitReps [situation reports] if it is CENTCOM, there are classification guidelines dealing with SigActs or SitReps...duration was short...there was additional information if it's IED's....may have been what the units observed....if it had information dealing with prisoner...you can have a routine document that could have been...or "point X IED placement we took 5 people into custody" consulted with classification review etc...
What is the end product?
...determination as to what is the current state of that information confirmed as classified...half of it is classified or any combination therein.
Typical length of a classification review?
One or two pages for affidavit, depends on detail...
Does the length of report correlate to the complexity of the review?
There could be...maybe no. Of the different documents responding out on may or may not be. Page count may not be necessary. depends on how long the process took.
You said SigActs had multiple layers for classification under guide?
Yes. SitReps had short duration, fairly vanilla. I have to leave it at SitReps, that is how I remember it.
If you were dealing with blocks of information if classified...could still cover all that information...if all information is properly classified and still properly classified? [context of the question is why it took so long for classification reviews in terms of the Article 32. One of the reasons given by Government for holding up the Article 32 was the need to finish the classification reviews. Coombs asks if there was a classification guide...?]
Do you know if SigActs have a duration...?
SigActs should be classified by policy. Guide may say 10 years...at review at five year mark...says it can be declassified at that point. That OCA can override it...that would be within their purview.
If you had SigAct in 2010 within months...CIDNE, five years, SECRET, you say would have to do entire classification review?
You could certainly look at guide...the point of the review in front of the... [missed]
So if I had a CIDNE...and tomorrow gets released...?
Of course if there is an unauthorized disclosure within 24 hours, however getting down to the ground truth, my way of looking at it, I want to know appropriate person making proper determination doesn't always line up....mandatory to do the whole process [missed].
In my hypothetical, following day I charge it...why wait four months...?
[PROSECUTION EXAMINATION OF BERT HAGGAT]
...[example given of] one SigAct released...all SigActs classified at...likely was classified on whole document..?
...to ensure that all classified information is being dealt with.
What do you mean?
...real time...to confirm that the information is properly classified.
SigAct with multiple layers, there could be other information?
...could be SigAct with IED information.
...all parameters, why still do a classification review?
That is the process required for classification reviews if you are going to take administrative action...and confirm it is classified. If [information about] IEDs is contained, TTP [Tactics Techniques Procedures], CENTCOM [?], JIEDDO [Joint Improvised Explosive Device Defeat Organization]...
JIEDDO classification higher than CENTCOM..?
Complete document has to be reviewed?
Process is set up so we don't assume classification...out of the workaday world, confirm batch of information classified...approved for litigation.
[Missed two remaining questions from prosecution, because Haggett was whispering.]
...assume something put into by a platoon sergeant...a SitRep...disclosed 1 February, on 1 March not really a SitRep, find out it is not classified, has it ever been classified?
using your analogy, it never would have been classified.
EO [Executive Order] and Department of Defense and Army policy, guides are suppose to be specific enough to specify enough so when applied. Classification review catches...[missed].
How often do you look at if something should be classified?
Yes. Occasionally something marked as classified shouldn't have been.
[Are you familiar] with over classification?
Deal with over classification? [Coombs mentions Over Classification Act. Transcriber assumes this is the October 17 2010 H.R. 553, The Reducing Over-Classification Act]
I think if you read the Act [the focus is on information sharing]. ...NOFORN originator control...must focus on DHS and making sure information shared within the them...IAG [Interagency Agreement] within the federal government.
[PROSECUTION END EXAMINATION OF BERT HAGGETT]
[END OF DAY]
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