This is a transcript of the Motion Hearing held on June 7, 2012 at Fort Meade, Maryland in US v Pfc. Manning.
Judge: Army Col. Denise Lind
Prosecution: Captain Ashden Fein, Captain Joe Morrow, Captain Angel Overgaard, Capt. Hunter Whyte
Defense: Mr. David Coombs,Captain Joshua Tooman, Major Thomas Hurley
Witness: Ms. Marguerite Coffey, former State Department director of the Office of Management Policy, Right Sizing, and Innovation who also acted as the supervisor of the WikiLeaks Mitigation Team
Witness: Ms. Rena Bitter, director of the Operations Center (S/ES-O) at the U.S. Department of State
Witness: Ms. Catherine Brown, the current Deputy Assistant Secretary of State for the Bureau of Intelligence and Research at the U.S. Department of State
This Article 39(a) session at Fort Meade for US v. PFC Manning on June 7, 2012 began with no audio in the press pool.
COURT IN SESSION
We missed David Coomb's, the lead defense counsel's, initial questions to Marguerite Coffey, former State Department director of the Office of Management Policy, Right Sizing, and Innovation who also acted as the supervisor of the WikiLeaks Mitigation Team.
...familiarizing themselves with cables from Net Centric Diplomacy cable feed, which was the source of the leaked information.
And, the Net Centric Diplomacy cables, those were the SIPDIS cables?
That is correct.
And, for SIPDIS, that meant cables that were able to be shared outside the Department of State is that correct?
And my understanding is that the Department of State has tags they place on cables
basically controlling the distribution of those cables?
That is correct.
And, SIPRNet would be one of those tags, or SIPDIS?
SIPDIS cannot be used with other tags, correct?
I am not sure of that.
If you had a more restricted distribution tag along with [missed word] restricted
distribution tag, it you would not be something that would be put into SIPDIS
is that correct?
I am not sure of that, because I don't think I have prepared a cable myself and used tags personally in about ten to fifteen years.
Now obviously that has changed over a period of time?
It very definitely has.
Alright. Going back to the Department of State action in relation to the leak of cables. Do you know what the Department of State did with regard to any sort of damage assessment of the cables?
In November 2010, instructions came from the [Executive] Office of Management and Budget
I believe it was late in November [November 28, 2010] that asked federal agencies to review their procedures in place and make sure that security safeguards for electronic information and all information were what they needed to be, and to do the due diligence that management would do in areas of security, information assurance, and policy of what pertained to information management in the Department [missed word].
Do you know if the Department of State has provided a copy of its damage assessment to the
Have you seen the Department of State's damage assessment?
No, I haven't.
Are you familiar with when that damage assessment might have been completed?
No. I'm not.
You indicated that you know Ambassador Patrick Kennedy?
You know that he testified in front of the Senate Committee on Homeland Security and Governmental Affairs in March of 2011?
And, at that hearing he testified about some of the steps the Department of State had taken when it became aware of the fact that WikiLeaks had potentially had some of the
Department of State Cables?
And, he talked about various organizations that were created, the Chiefs of Mission Review?
Are you familiar with that?
And how are you familiar with the Chiefs of Mission review?
I knew it was being conducted in the Department [of State], but I did not participate in that review.
And, just in general can you tell the Court what you know with regards to the Chiefs of
My understanding was that Chiefs of Mission were ambassadors in our posts abroad - were asked to conduct a review of the foreign policy implications of any disclosure of information due to WikiLeaks and Net Centric Diplomacy.
And, again knowing that you really weren't involved with that, are you aware whether or
not the Chiefs of Mission complied with that request?
No I am not.
So you would never see anything...
Your Honor, OBJECTION.
This witness based off of the defense's request was offered for the
Mitigation Team. The witness just testified she doesn't have direct knowledge about the Chiefs of Mission review and there is a Department of State witness coming to testify on that subject.
Again, you Honor. I am just asking the witness what she knows. If she says she
doesn't know something I am moving on to new topics.
So you haven't seen anything from the Chiefs of Mission review?
I have not.
The 24/7 WikiLeaks Working Group. Are you familiar with that group?
Can you tell the Court how you are familiar with that?
Well, that was stood up in response to disclosures as well. But, that is was another area that was outside the scope of my responsibilities, and so I have no knowledge in their operations thereof.
So you never saw anything from the 24/7 WikiLeaks Working Group?
And you never participated in any meetings discussing the 24/7 WikiLeaks Working Group?
Thank you. The Persons at Risk Group. Are you familiar with that Group?
And can you tell the Court how you are familiar with that?
It was another group set that was stood up in the aftermath of the WikiLeaks disclosures and again it was something that I was aware of but had no part in the deliberations or devising any of their product.
And when you say you were aware of can you tell the Court how generally you became aware of that group?
Certainly. In the fall of 2010, these various groups, and I believe this was a November time frame - these various groups were tasked by the Department [of State] to look into various aspects of the WikiLeaks disclosures. And, for example, my role to stand up the Mitigation Team, and what we were mitigating were any shortcomings or any deficiencies to the management operations pertaining to systems security, information management, and the development of information management policy, and that was the area in which I operated during this time.
So with regards to the other groups, you were just simply aware that there was this sense, but there was no kind of cross-pollination of efforts or information?
There was not.
Are you aware of any of the Department of State's briefings to Congress or the Senate other than I guess Ambassador Kennedy's briefing?
I was aware of
Ambassador Kennedy's briefings in late November and early December of
Any other briefing by the Department of State [missed word]?
Under Secretary Kennedy briefed the Senate Governmental Affairs Committee on March 10, 2011.
The late November, early December was that also Ambassador Kennedy?
And now you've just stated that the Mitigation Team was one of the teams that the Department of State created?
And my understanding from Ambassador Kennedy's testimony was that that was to address
the policy, legal, security, counter-intelligence, and information assurance
issues presented by the release of these documents?
Let me first...well actually you said that you left the Mitigation Team?
Yes, I did.
How many members comprised the Mitigation Team?
It varied at times. I think the [missed word] we had were probably five assistant secretaries or deputy assistant secretaries, the Chief Information Officer of the Bureau of Diplomatic Security was [missed word] administration. All those that had the operational responsibility over the areas that you just identified.
And, when was your group created?
It was I believe in late November. It was either right before or right after Thanksgiving that year.
2010. And, I know Ma'am, that you are no longer on that advisory group, but is that group still conducting its work?
I don't know. I be surprised if it was, because basically what we did was the due diligence that OMB [Executive Office of Management and Budget] asked us to do within the time frame that they asked us to do it. And, what we reported was recorded in the Under Secretary Kennedy's testimony on March 10 .
Okay. So let's go through some of the stuff then. What did the group look at with regards to policy in general, not releasing classified information, but what were you looking at with regards to policy issues?
Information assurance. Information management. Where our policies on
the disclosure of information up to date? The various means through disclosure, for example, I don't think at the time even the Foreign Affairs Manual, which is our in-house regulations, I don't think the manual contained a word such as "thumb drive", but it does now. So, we were amending [missed word], updating all of those policies to comport with the guidance of that group.
Were the information assurance aspects group also looking at just the very nature of the
Net Centric Diplomacy database?
The second question is outside the scope of the purpose of...the defense requested the Court order this witness to develop and determine which documentation they missed for the Motion to Compel Discovery. What conclusions they might have come to is not without limitations. If there are documents they could request to the Court for their production [missed word].
What prejudices the Government if I allow this line of questioning to continue?
Your Honor, first it prejudices that the original scope was for Ms. Coffey to come and
testify on what the Mitigation Team did and what documents where there. Ms. Coffey is even in a position to the former director...isn't in the position right now to give the exact conclusion [missed word]. So, in order to give the defense the [missed word] of these answers, this is outside the scope Ms. Coffey came here to testify.
[to prosecution] Alright.
[to witness] Ms. Coffey, if there are any questions
that you believe that you are not prepared to answer, or that you don't want to
answer, please advise me.
[to defense] [missed, Judge Lind told defense to continue its questioning]
Thank you. So Ms. Coffey with regards to the information assurance, did your team look at the Net Centric Diplomacy database in general in dealing with the SIPDIS cables?
I don't know. But my understanding was the scope of their work was that they were to do a complete review of the State Department's network.
Okay. And so, with regards to policy, that was a subgroup of your mitigation team, correct?
And, at the time that you left was the...actually when did you leave supervising this
The 29th of July, 2011.
And, at the time that you left supervising this group, was it still continuing its works or does the group basically disband at that point?
To my recollection the group, I wouldn't say formally disbanded but met sporadically after Under Secretary Kennedy's testimony on March 10 . At that point, the focus became on the interagency work that was being coordinated by the National Security Council.
Do you know if you were replaced? If you were the supervisor of the Mitigation Team, did somebody replace you?
And, do you know who that is?
My deputy, Ms. Kay Gotoh.
And, in the military we do kind what is called a [missed word] where you hand over responsibilities, and a person might shadow you for a short period of time, did Ms. Gotoh do that?
And, during that time period, did you tell her if there was any outstanding things that the Mitigation Team needed to accomplish?
So, as of at least as of 29th of July 2011, from your perspective the Mitigation Team had
completed its work.
What did the group look at with regards to the legal aspects?
Well, part of the Mitigation Team included the Office of the Legal Advisor. There is a deputy legal advisor for management that was part of the team, and they participated and advised on various points of regulation during the period that we ended up the [missed
word]. They advised of course on the testimony, and any other questions that the group made [missed word].
And, when you say testimony, what do you mean?
That was Undersecretary
Kennedy's testimony before the Senate Government Affairs Committee on March 10
So the scope of his testimony?
And, with regards to you leaving the group in 29 July 2011, I take it there are no outstanding legal issues either?
Not to my knowledge.
And what did the group look at with regards to the counterintelligence?
The counterintelligence was the counterintelligence area within the Bureau of Diplomatic Security, and they were focused on with respect to their work on Mitigation Team issues of
access to information systems, and whether or not only were the regulations up to date, but was there any evidence on the network that there were any anomalies with network operations at any time.
Okay. So, the access part is that the access to the Net Centric Diplomacy database that you are talking about?
Well, not during that period of time. Because, access to the Net Centric Diplomacy database had been drawn down as a result of the disclosure of the WikiLeaks [missed word].
So, at that point it was only available on JWICS [Joint Worldwide Intelligence
So, prior to that being gone, the SIPRNet, from your understanding was there any sort of
password or sort of requirement for a person to get access to get to the Net Centric
I am not aware of any.
Was your group the one that made the recommendation I guess to move it to JWICS [Joint
Worldwide Intelligence Communications System], or was that done independently
to your group?
It was done independently. In fact, it was done before the Mitigation Team ever convened.
Okay. We might have already covered this Ma'am. The information assurance issues we
discussed a little bit about that, but the group had an independent duty
apparently looking for the information assurance issues.
[makes a sound that is affirmative: "mm-hmm"]
What in general did you look at with regards to that?
Again, network security. To do all the due diligence, and review all the protocols for network access, and network operations.
And, was this information assurance aspect, just from the Department of State perspective or was this information assurance from the standpoint of access to the Net Centric
I think it was both.
And, I understand that you are in an advisor role, so you at this point, you may say, "I
have no knowledge of this," but do you know if Ms. Gotoh and the group conducted any additional reviews of information after 29 July 2011.
I have no knowledge of that.
Now, when WikiLeaks released all of the un-redacted cables in September 2011, do you know
if anything was done by the Mitigation Team at that point?
That date was after my participation in the...you said 2011?
That is correct. So, I know you are no longer as the supervisor. I am just wondering if you know if the Mitigation Team did anything after that date?
In the time that the Mitigation Team - the time that you were supervising - was looking at
information, the cables had not been released in un-redacted form, correct?
And, what cables...were you looking at any of the cables from your perspective as the
No. I personally did not see any of those cables.
The group that you supervised, did they submit a final report in some format?
No. We reported to the Congress on March 10th 2010 [She made a mistake. 2010 should be 2011] on what measure were taken by the Mitigation Team and others to strike the right balance as the Committee was concerned about the need to share information and the need to safeguard it in a manner consistent with national security practice.
Did the Mitigation Team ever produce anything in written form?
Just the testimony of Ambassador Kennedy?
So, other than that the Mitigation Team ever compile anything into a written document?
What we had, and what we based the testimony on were meeting agenda's and meeting minutes
and the discussions in those meetings which will be [missed word] about the
measures taken to mitigate all the operational, managerial efforts that were
directed by the [Executive] Office of Management and Budget [OMB].
So the Mitigation from basically November 2010 to the time that time period that you
left in July of 2011 met on a weekly basis?
We met on a weekly basis up to about the time right after Undersecretary Kennedy's
testimony, after that we started meeting every other week, so bi-weekly, and our focus started to change to the inter-agency community.
So, weekly based up to about March of 2011, and then bi-weekly after that?
And, you said that meetings were captured by meeting notes or agendas?
And, was this documentation preserved in any way?
And, how so?
Well, it is in a file in what use to be my former office, and I don't have access to it. I don't know if it still exists, but it did at the time that I was the director of that office.
I take it from at least my experience with meeting notes that you have numbers and it is like the transcriber takes down the notes of the discussion?
Do you know who that person was for your [missed word]?
And, can you tell me who that person was?
Is Mr. Stein still with the Department of State?
Yes, he is.
Now, you testified that the Mitigation Team's assessment apparently was incorporated
into Ambassador Kennedy's testimony, correct?
But, you have no knowledge whether or not the Mitigation Team efforts were incorporated into the Department of State's damage assessment?
And, understanding that you were not part of the creation of the damage assessment,
do you have any knowledge as to how the damage assessment was created by the
Department of State?
The Department directed an assessment and sent a cable to all diplomatic and consular posts advising them of the reviewing the impact on American foreign policy.
Okay, and that is the extent of your knowledge about it?
Is there anything that I haven't asked that you think is important based upon your role
as the supervisor of the Mitigation Team?
No, I don't think so.
So, you think I have covered everything?
I believe so.
Alright, Ma'am, again I want to thank you for taking the time to come testify here today. I know it is short notice. I don't know of you may have some questions for the Court. But, the defense appreciates your time.
You are welcome.
A few questions, you Honor.
Ms. Coffey, in getting a [missed word] to these questions, you mentioned that OMB [Executive Office of Management and Budget] directed around October, November of 2010, you answered that when he asked you about the damage assessment. Was that OMB [Executive Office of Management and Budget] directed about the damage assessment or mitigation efforts?
Okay. And then also could you please explain to the Court the structure of the organization of the Department of State?
Sure. Well, first there is [missed word] of Department, it is lead by the Secretary of State, has two deputy secretaries of state, and six under secretaries of state, and if I could make an analogy to simplify things I think you could equate the undersecretaries
of state - there are six of them - to the Joint Chiefs at the Pentagon, and that each of them have their individual portfolios, and each of them are certainly aware of one another's mission, but they don't really deal with one another in day to day operations.
And does the Department of State have a centralized filing system?
It does. It captures the official records of the Secretary of State, which of course are managed by the Bureau of Administration in cooperation with the National Archives. And, they are of obvious historical interest and ultimately find their expression 30, 40, 50 years down the road in the "Foreign Relations of the United States", which is [missed phrase].
So, that system you are talking about is really only for the Secretary's papers?
It is not for all the employees or offices or bureaus within the Department [of State]?
That is correct. Everybody else follows the record management procedures of the National Archives. And, every three years, according to schedule, we organize our records and we retire them according to what the National Archives requires.
Thank you. No more questions, your Honor.
Anything else from the defense.
Just briefly on the agenda notes. I realized that you said that you are not aware if they still exist, is it typical to preserve the agenda and meeting notes of meetings?
And, how is that normally done?
Well, they would be an electronic record. And, they would still be part of the files of the Office of Management Policy, Rightsizing, and Innovation.
So, you would expect if a request was made to obtain the agenda notes and meeting notes from the Mitigation Team that the Department of State would actually have those documents?
I would expect that, yes.
Thank you, Ma'am.
[to prosecution] [missed phrase.]
No, you Honor.
Alright, Ms. Coffey, thank you very much for coming [missed word], and testifying today.
Ms. Marguerite Coffey, former director of the Office of Management Policy, Rightsizing, and Innovation at the U.S. Department of State (M/PRI), and the supervisor of the WikiLeaks Mitigation Team, steps down.
Ma'am, the defense would call Ms. Rena Bitter.
Ms. Rena Bitter, director of the Operations Center (S/ES-O) at the U.S. Department of State takes the stand.
Ms. Bitter, before you sit can you please stand, face me, and raise your right hand. Do you swear or affirm the testimony you are going to give in this hearing is the truth, the whole truth, and nothing but the truth, so help you God?
Thank you very much, please be seated.
And, for the record, you are Ms. Rena Bitter, the director of the Operations Center at the
Department of State?
[makes a sound that is affirmative: "mm-hmm"]
Thank you. Before we continue, just as a reminder. If you feel that any answer requires a classified answer, please notify the Court.
Good morning, Ms. Bitter.
Again, thank you for taking the time to come here to testify. Can you tell the Court how long you have been in your current position as the director of the Operations Center?
Two years [missed word].
And, how long have you been with the Department of State?
And, briefly can you tell the Court some of the previous positions that you have held with the Department of State?
I have served in embassies overseas in Mexico City, Bogotá, London, and Amman, Jordan; and I have also worked at various jobs in the Department.
And, your overseas positions, what in general was your position?
I worked in Amman as the Chief of the Consular Section of the embassy. It is the part of the embassy for consular services. And, in London, I served as the Chief of the Nonimmigrant Visa Section, and prior to that I was a political officer.
Thank you. And, with regards to your current position, what does the director of Operations Center do?
The Operations Center is the State Department's briefing and crisis management center where we are directly located in the office of the office of the Secretary. And, we are a big piece of what we do is that we coordinate the State Department's response to a crisis.
So, is that the public statement type response by the Department of State, or is that just coordinate how the Department of State should handle something internally?
Well, like...sure, like DoD [Department of Defense] and other agencies, there are lots of
different pieces of the State Department that do different things.
When there is a crisis, it is incumbent on the Operations Center to ensure that everybody speaks with one voice in terms of a crisis, so it involves all parts of the Department, including the public affairs section, and other pieces.
So, all parts of the Department that are touched by crisis will participate in the response that we coordinate.
So, when a member of the Department of State, makes a public statement, such as Ambassador Kennedy or somebody else that is something
that has been coordinated through your operations center?
No, generally not. That would be through the public affairs section. What we do is that when there is like an ongoing crisis, we will bring together all the people in the Department that have a role in it on the task force or working group, so they can all work together in one location and coordinate with each other.
If something like a public statement or testimony elsewhere can be [missed word], that individual offices in bureaus.
So, the operations center basically supervises ad hoc groups that have been created in response to some emergency or...?
Yeah. Well what happened is the...with what happens...with the Executive Secretariat, the head of...we work for him, and his job...to put it in some very simple terms...he is the assistant secretary for making the State Department do what the Secretary needs it to do.
So, if there is a big crisis that involves a lot of different parts of the Department, he will task the building and various bureaus in the building to provide representatives to a task force of working group.
And, that provides the response to the crisis...that formulates the response to the crisis.
And that group is stood up under the auspices of my office, the Operations Center.
So, when you say he, is that Ambassador Kennedy?
No. It is Ambassador [Stephen D.] Mull.
Can you say that again?
Ambassador [Stephen D.] Mull...uh...the current Executive Secretariat of the Department of
State is Stephen Mull.
And, I am sorry, can you spell the last name for me?
M-U-L-L. But, again, he is the current "exec sec" that is sort of their [missed word]...whoever is in that job will do that.
And, can you tell me who was in that job in the 2010, 2011 timeframe?
It was [missed word] Mull.
Based upon your position over the last two years as the director of Operations Center, are you knowledgeable with regards to the Department of State's reaction or what it has
done in reaction to disclosure of diplomatic cables?
Our office coordinated the crisis response in the immediate aftermath.
So, that would be yes, you are familiar with the Department of State has done?
I am familiar with what my office did.
Okay. And, can you generally tell us once the Department of State was made aware of the fact that some of the cables from the Net Centric Diplomacy database may have been compromised, what did the Department of State do?
As I was saying, we did what we typically do in response to crisis that touch on various
bureaus and departments, and we formed a WikiLeaks Working Group under the auspices of my office.
Is that all that the Operations Center did?
That was the primary vehicle for responding to the crisis. I can't think of anything that might respond to that question.
Before I talk about that, from your position, are you familiar with the Department of State's damage assessment?
I am aware of it, but I am not familiar with it.
Do you know if the Department of State has provided its damage assessment to the Court or to the parties?
I don't know.
Have you ever seen the Department of State's damage assessment?
I have not.
So, can you tell us how...when you say, "I am generally aware..." to what extent
are you aware of the damage assessment?
I know in talking to the attorney for this that, that was the topic that would come up. And, it wasn't a surprise to me, so I can't tell you exactly how I know about it, but I knew that it was sort of out there.
Alright. So, you have no knowledge as to what might be the latest damage assessment by the
Department of State or anything like that?
I do not.
Do you know Ambassador Kennedy?
Yes, I do.
And, are you familiar with the fact that he testified in front of the Senate Committee on Homeland Security and Governmental Affairs?
I am aware that he testified, yes.
And, from your knowledge do you know when he testified?
I do not. I don't remember.
Does March 2011 sound about right?
It does sound right from, again from preparing for this...it is a date that I have heard
I realize that you have received short notice that you are going to be testifying here
So, if there is something that you don't recall, don't remember it is perfectly fine to says, "I don't recall," or "I don't remember."
Kennedy testified he mentioned several groups and one of them was the WikiLeaks
Are you familiar with the general content of this testimony in front of the Senate?
I know that he testified, and again, for the last two days I have become aware a little bit more...but I didn't follow it and I haven't read it, and I don't really know what he said.
Okay. When he testified he indicated that once the Department of State became aware of the fact that certain cables had been potentially compromised the Department of State took several immediate actions, and one of them was creating the 24/7 WikiLeaks Working Group. To your knowledge, when did that group start its job?
That started the last week of November 2010. I think it might have been the 26th of November.
And, according to Patrick Kennedy the WikiLeaks Working Group was composed of senior officials from throughout the Department?
...to include your original bureaus as well?
And who were the senior officials in general?
In general, they were...it was composed initially of...because it was 24/7 it is not just one representative from each bureau...it was composed of one representative from essentially several bureaus that rotate on various shifts...and each individual bureau in particular had somebody at the assistant secretary level that took responsibility as well for being present part of the time.
And can you tell the Court and myself, the "original bureaus" what does that mean and what is an original bureau?
The State Department is...I think DoD [Department of Defense] is divided the same way...is separated into original bureaus and also functional bureaus, and the original bureaus represent...it is divided by bureaus across the world.
So, it's East Asia Pacific Affairs, and Western Hemisphere Affairs, European Affairs, all the way across. We have seven original bureaus.
And, then there are a variety of functional bureaus that handle issue based problems or issues essentially: boat refugees and human rights, international organizations, and things like that. Public affairs is one as well.
Okay. The fact that the Working Group was 24/7 and you indicated then that multiple people from maybe the same bureau were tasked to be part of it?
And what was the size of the grouping in numbers?
By bureau or by persons?
Lets first go by the WikiLeaks Working Group in general. How many people were within the 24/7 WikiLeaks Working Group?
I don't remember exactly how many bureaus were represented, but we probably had at any
given time representation from 10 bureaus or 15, actually probably closer to
And, so 15 bureaus would that mean...15 people, or 30 people, or 40 people?
It varied. We...the way that we structured it was an little unusual for us normally...it's just one representative from each bureau.
But, during the day in particular in the beginning we had two representatives from some of the bureaus.
So, it would then have been probably 25 people I would say during the day. And, then the swing shift and overnight shift would have two representatives.
Okay. I have a few more questions on the working group, but I understand based upon [missed word] and dates that you also participated in a group that was tasked to review potential risks to individuals based upon the release of the cables?
And, what was that group called?
That was the WikiLeaks Persons at Risk Working Group.
Alright, so lets go ahead and discuss these in turn. What was the general task and purpose of the 24/7 WikiLeaks Working Group?
It was to formulate a State Department response and essentially it was, we were trying to
get...the goal of that particular working group was to stay ahead of the release of information of purported cables and to try to insure that we could understand what was public and make sure the State Department officials were aware of what information was...what information had now become public and what they might have to respond to.
At the time, in particular it was important because the Secretary was traveling overseas and seeing a variety of different interlocutors, and she was seeing folks at a particular multi-lateral event where she would have run into a lot of her counterparts.
So, it was very important that the group stay ahead and on top of what was public, and be able to make the Secretary and other department officials aware.
So, the group was looking at the cables that had been released that Fall...at that point, or were they looking at all the cables that they thought were compromised?
Um...the group did both. The group was aware of the database of the info...of the actual information that may have been compromised, and then was also looking at the purported cables that were then in the public domain.
Alright, so the 24/7 WikiLeaks Working Group looked at all of the cables that were within the Net Centric Diplomacy database that were believed to have been compromised?
It was not the job of the Working Group to become familiar with that [missed word could be the word, audit] information, but there were instances where it was important for them to be able to access that [missed word]. The real purpose of the group was to stay ahead of the disclosures.
And, when you "stay ahead" what does that mean?
To become aware as quickly as possible of when something became...something that was a purported to be a State Department cable became public and to draw it to the attention of all the people who might need to take a look at it and determine if more senior officials needed to be aware.
So, would the 24/7 WikiLeaks Working Group then as they tried to stay ahead reduce something to writing?
Reduce something to writing meaning?
Well, I imagine if they are looking at cables and we will just take the cables that have been released, that they were looking at, not the entire database.
You said, they would look at those cables in order to try to stay ahead of the release and then inform certain people of, I guess, their observations, is that correct?
Yes, more of less.
And, those observations, were they reduced to writing?
The group, like all working groups or task forces produced situation reports that were written and disseminated within the State Department and in some cases outside but
within the Government.
And, the situation reports were essentially the group's analysis or review of whatever
cables they looked at?
Yeah. What the situation reports were, were they...it was a snap shot of what the current situation was in order to give kind a common operating picture to folks in the Department and elsewhere who want to look at...who were looking at these things.
So, it would have contained, kind of, the latest information...the latest that the working group knew, and in some instances, context as well.
And, I would imagine that if it is situational and kind of the latest snap shot view that
that would be updated over a period of time?
The [24/7 WikiLeaks Working] Group produced twice daily, I think they were twice daily. I think it may have tapered off towards the end..."situational reports".
And, for the life time of the group. If it started basically...Ambassador Kennedy said 28 November 2010...26 is basically
the same thing...when did the [24/7 WikiLeaks Working] Group stop its work?
We stopped, I think it was, around the 17th of December.
Of what year?
So, at that point 17 December 2010, can you tell me why the group stopped?
We typically take down, what we call "take down"...we end our working group or task force when it seems that the issues...it's not a crisis anymore essentially, and the issues that are left over are, well are important, but can be handled by individual bureau to offices.
So, there is no need for everyone to be sitting in the same room working together anymore, but individual offices are going to take over the issues that remain.
Alright, so between apparently 28 November 2010 and 17 December 2010 it was a 24/7 Group where they were constantly working 24/7?
At some point, we stopped being 24/7 and we went to 18 or 12 hour days shifts, until the end of the working group.
And, at the time of 17 December 2010 the un-redacted cables had not been released by
I don't know the answer to that, I don't remember.
When WikiLeaks...do you know if WikiLeaks released the un-redacted versions of the
I now that now everything has been released, but during that time frame I don't...I am aware of something that happened much later.
No, I am not asking that. I guess as you said there on the stand, are you aware that WikiLeaks released all of the un-redacted versions of the cables?
I know that all of the purported State Department cables are out there, I don't exactly know who released this information.
Okay, so on 17 December 2010 when the group kind of stood down, at that point it had done its job apparently?
At that point it had coordinated the State Department response to the crisis, and had developed mechanisms for the State Department to handle remaining issues.
And, if the group was trying to stay ahead of the releases, it would seem to make sense that the group has to review any issues that might have been within the potential disclosure of the cables, would that be correct?
I am not sure I understand the question.
Sure. I will rephrase it.
You indicated that initially that the group was initially looking at potential release to
stay ahead of the releases, correct?
And, the goal I guess of that was to educate those people who might be speaking any reported leak by the Department of State, not only what might be released, but perhaps risks or issues that the Department of State might know from the releases, is that correct?
Sure, so what that, as I recall, the immediate, one of the things that precipitated the immediate response that required the task force, apart from the Secretary's travel and just the fact this was something that impacted the State Department world-wide was the fact that there were newspapers were publishing articles, and there were a series of articles, and so while there was a general acknowledgement that we had no idea of how long the releases of purported information was going to continue.
One of the things that the group tried very hard to do, was to figure out an ongoing mechanism for staying ahead of the information that didn't require a group of people to work in a room 24/7.
So, over the course of a few weeks since that the working group existed that was a big part of what it tried to do, which was figure out this...if this is not time limited how would the Department manage to continue what the group has done here on an ongoing basis.
So, when that group was looking at it to try to basically get ahead of the releases and develop a strategy, I guess, for the Department of State, from a standpoint of ongoing, did the working group look at all the potential releases from the Net Centric Diplomacy database?
I am not sure exactly how you said it, except to say that one of the one of the tasks of the working group is not to do that.
It would have been too onerous for the group to do. So, but there was kind of an acknowledgement of what was in that body of information. Does that answer your
I think so, I mean just from a timing, if it was three weeks I would understand that it would be a very difficult tasks to look at the entire database.
Was there somebody within the Department of State to your knowledge that was looking at the cables to basically educate the Secretary or anyone else as to what might be any potential risks for disclosure?
Yes. I don't know those specifics, but there was...the Department asked every post to look at cables that where in that database.
So, would that have been the Chiefs of Mission review?
So, I suppose... [she appears hesitant about answering the question] ...I think probably.
So, from your position as the director of the Operations Center, did you have any involvement with the 24/7 WikiLeaks Working Group?
I did. It was...the group operated under the auspices of my office. So, I didn't have a formal role on the task force, but had quite a bit of contact, and I was there helping them.
And, again understanding that this information would be classified, so I am not asking you to reveal anything that is classified, but the situation reports that they submitted by [missed word], in general what was the format, I guess, of those reports?
Generally, situations reports are formatted...it depends on what's going on....but generally there would be a latest information section of it, and I don't remember exactly what all of these looked like.
There were over a series of [missed work] that were reported to a day...but they would have had a regional breakdown of the latest developments, and some of them, I think they had, component talking about possible diplomatic engagement.
And, what was the working group reviewing in order to create these situation reports?
Generally, it was looking at...not just at what might have been publicly disclosed on the Web site of the various media outlets, but also reporting from posts and talking to the representatives...representatives would talk with their subject matter in the original bureaus and functional bureaus.
So, it was a way of coordinating all of the information of the State Department.
Alright. So, in addition to the creation of the situation reports, and in order to create those reports, you would get information from outside sources, is that correct?
In terms of the State Department, but in terms of the working group's job was to kind of
harness all of the resources of the State Department.
So, yeah, the working group would have spoken with posts overseas as well as folks within the Department that work on various issues that were impacted.
Do you know from your position whether or not that information from the other posts or
whatnot was reduced to writing?
It would have been in the...as a...included in the situation reports. The situation reports were [missed word] where coordinating out of the working group was going and doing that.
How about supporting documentation that, I think that is what I am asking, is if I
contacted say for example say, the particular embassy overseas, asked them for
They gave it to
me in a written format, then I took that and reduced it into the situation
report, would the documentation coming from the outside sources be reduced to
It might have been, it might have. It is possible.
And, would that be included within the situation report like an attachment or enclosure?
Probably not. It is really a little bit hard to say when it might have been a phone call or face-to-face interaction with people in the building.
It could have potentially have been an email, but I don't know for sure. And if it was an email it would have not been attached.
And, after 17 December 2010 what was done with the work product of the 24/7 WikiLeaks Working Group?
We...I am not an expert on it, but what will generally happen with [missed two words] from a task force or working group is that a piece of out larger office will capture that information.
Some of it will be record information. Some of it is maintained for a certain period of time, but I don't really, in talking a little bit out of my lane here.
Okay. Does the operations center capture any of this information?
The Operations Center is part of the larger organization, the Executive Secretariat, and so we don't necessarily do that, but there we have a sister office that is part of our organization or larger organization that would have done that.
And what organization is that?
The Executive Secretariat is the larger organization.
And, I understand that it is a little bit out of your lane, so it is fine, just say,
"I don't know," but would you expect that the Executive Secretariat would actually have the documentation?
I think that what ever would have been required to preserve, we absolutely would have
Okay. Before I go to the potential risk to individuals, is there anything else about the 24/7 WikiLeaks Working Group that you think is important that I haven't asked you?
That is hard for me to answer. I don't know. [repeats] I don't know. But, I am happy to answer anything else that you...
Okay, well lets talk about the potential risk to individuals.
Again, can you tell me was that group given a specific name?
It was called the WikiLeaks Persons at Risk Working Group.
And how was that group created?
Well, one of the...what I mentioned earlier...one of the things that we worked on throughout the course of the working group...the WikiLeaks Working Group was a way to try to figure out how to handle some of the issues on an ongoing basis, and this was a piece of that.
So, when we took down the WikiLeaks Working Group, we stood up, so to speak this other task force. But, I use task force and working group interchangeably.
It is the same thing, to deal with this issue in particular, because there were not...it was difficult to find a mechanism that already existed to handle some of the specific issues that came out of it.
Alright, and how many people comprised this group?
This was...it was again all of the original bureaus, and then probably five other bureaus as well. So, 12 to 15...and there were on this working group, excuse me, there were two representatives from each bureau.
And, I am thinking if it was stood up after the WikiLeaks Working Group, which basically disbanded, it would have been sometime in December of 2010?
And, in the same moment that we took down the WikiLeaks Working Work...in the same paperwork, we stood up this other one.
And, can you tell me the primary mission of this other group?
This group wanted to identify people who may have been identified as at risk due to disclosures in the purported State Department information, and develop a way to handle...develop ways to help them, and policy to deal with the issue on an ongoing basis.
And, is this group still working?
Um...the group is working informally. It is not working as a...like it's not working under the auspices of the Operation Center, but as an informal working group to manage this issue.
It does...I am aware of the fact that it still does occasionally meet.
When did the group cease to operate under the auspices of the Operations Center?
It was around May of 2011.
So from December 2011 to May 2011, the group was under the auspices of the operations center?
December 2010 to May 2011.
Sorry. And, I imagine if the goal was to identify potential persons at risk, then this group would have to review all of the cables.
Again, the group did not review all the cables but the group asked posts to review the Net Centric Diplomacy database as well.
Alright, so correct me if I am wrong then, but what you are saying is the group asked the Chiefs of Missions to review the cables, identify potential persons at risk and then report them to the group. Was that how it was done?
More or less. It was to try identify people at risk, and that was handled...It was very individual...handled very individualized.
Sometimes they would make that information known to the working group. Sometimes they would try to speak with those people individually to see if they felt at risk.
It was...the only thing that the working group [missed word] was to do, was just to scrub. They didn't ask them to necessarily to draw each and every one of those individuals to the Working Group's attention.
Alright, so and again you can tell me where I am missing it. I think the WikiLeaks Working Group for Persons at Risk was designed to identify persons at risk from the alleged disclosures.
So, how did they identify persons at risk?
In this, they went through the database, the Net Centric Diplomacy database.
So, did the group review all the cables in order to identify persons at risk?
Right. They did.
And, so that group then went cable by cable apparently [missed word] whoever they thought potentially would be a person's at risk?
The group did not, but the group asked the embassies overseas to, to review their reporting that might have been included in the database, and to make its own judgment about whether or not to draw those people to the group's attention.
Alright, so if I understand right then, the Chiefs of Missions reviewed the cables.
If they saw anyone in the cables from their embassy that they thought was at risk, they would identify those people to the Persons at Risk Working Group?
They may have, or they may not have. But, they would make that judgment. They would look at each case individually.
They may decide this person may be at risk, or may not be. They may decide we are going to ask this person...we are going to let this person know that they have been...that we have used as a source in this cable.
And, then the Chiefs of Mission would determine whether or not...not whether or not the person is at risk, but whether or not to draw that to the attention of the working group.
Alright, so if I understand it correctly, the Working Group, whatever names it got they got from Chiefs of Mission?
That is my recollection, yes.
Alright, so then once the working group got these names, what in general was the working group...actually before that...in order to get these names, was there something in writing that came from the Chiefs of Mission saying, "Here are the people we want to bring to your attention"?
Sometimes it would be in writing.
And, other times...?
Sometimes it would be in writing, and sometimes there would be a phone call or other kinds of communication.
And, once those names got to the Persons at Risk Working Group, did that group put together any sort of report, like a weekly report, much like the 24/7 [WikiLeaks Working] Group?
The group did...it was an unusual working group. It didn't report [missed word] at all, and it was...the purpose of the group was not to disseminate this information.
But, it did on a regular basis like...I can't remember if it was weekly or if it was less regular than that...report status to the Secretariat in an information memo.
And this information memo then was written?
It was written.
And, other than the information memo was there any supporting documentation attached to it?
Not attached. But, the group maintained a matrix on a SharePoint site of the individuals that it was tracking.
Besides tracking individuals and reporting to Secretariat in a memo, what was this group's task in general?
What it was meant to do was to consider these cases on an individual basis and determine whether or not the Department could be helpful to them, and also to formulate some kind of guidance for posts overseas in case they were approached.
The understanding of this, that is this going to be an ongoing issue to be dealt with. So, it was important for the group to formulate some kind of guidance to give embassies overseas...context and help decision making if they are approached by people or presented somebody who is potentially at risk.
So, in May of 2011 can you tell me why it was taken out of the auspices of the Operations
As I recall, I think the idea was that at that point it was working...it sort of was working on its own.
One of the reasons that...it didn't really need to be housed under the auspices of the Secretary [missed phrase] but it was, the group was working together very well, and had processes in place, so it didn't really need our office to help any longer.
And, does this group that apparently is still...if you said, you believe it is still meeting informally?
I say informally because I am not super aware of when it meets. I understand it was [missed word] formally.
But I think it does meet, and I know that they still communicate together by email. They are still people in a bunch of these offices in the Department that have formal responsibility to be part of this group.
So, is the group still comprised of basically 15 members?
I think so. I don't know for sure.
Do you know if the group is still submitting memos...?
I don't believe it is. [repeats] I don't believe it is. That was something that...I don't know how long that went on.
It didn't...the memos became less frequent after a month or two months of the working group. I don't know exactly when that stopped.
And, with regards to the memos, do you know where those might be stored or captured?
Those are again official record memos that they went to the Secretary so they would have been captured with formal process that Department uses to capture information that goes to the Secretary.
So, when we are looking for those memos, we need to go to the Executive Secretary again or would you go somewhere else?
I don't know how to answer that. I guess they would not be available, I guess, because they are very sensitive they would be restricted in some way.
But, it would be the normal way that you would go to get something was part of the record of the State Department.
And, you indicated that you didn't believe the group was submitting memos at this time, why is that?
You don't know why you believe that?
I don't know why they would not be. I do not actually know...I have not seen any recently that they have done, but again that they are not part of my office, I might not.
Okay. When you said that they were trying to work together I guess a formal guidance or whatnot, did they put anything out to embassies?
I recall that they did.
And, in general what was that?
I recall that they did at least one cable, a message to all embassies and diplomatic posts.
And that one cable was that guidance as to what they needed to do or was that cable asking the Chiefs of Mission to submit a...?
They did one...at least one guidance cable, and then [missed word] cable. But, I just don't recall.
And a guidance cables, what does that mean?
It would have been sent to all consular and diplomatic posts, breaking down some...essentially guidance in the ways that the Department may or may not be able to help people that they became aware of.
So, some sort of like remedial measures, if someone has been identified and they think they are at risk, "These are the remedial measures we can take"?
Um...yeah..."Here are the things that you should do. Here are the things that should think about."
Okay. Was that put out as a [missed word] cable to all embassies or was that put out in some other form or fashion?
It would have been a message to all embassies overseas?
So, obviously that document you would expect to still be in existence?
And if one were trying to obtain that document where would you go?
This would be...this information would be, again, captured, classified, but captured.
The information from that document would be classified, but it would be captured in the same way as all of other official record documents are.
And that is how?
Again, it is hard for me to know exactly how to answer that, but however one gets record
documents from the State Department.
Let me ask you about some of the other things that the Department of State has done in reaction to release of the cables. If you don't have any knowledge about that you can just tell me, "I don't have any knowledge of that."
Are you familiar with the Chiefs of Mission review?
I am familiar with that, that would have happened.
What is the base...I guess, what is the extent of your familiarity with that?
I know that prior to the initial release of purported information, [missed word] to Chiefs
of Mission for us to review that particular [missed word].
And, from your knowledge are you aware of whether of not it was Chiefs of Mission just reviewing information form their particular embassy and then reporting back or reviewing the whole database?
Have you ever seen anything from the Chiefs of Mission review?
I never review anything, I may have. I don't specifically remember.
So, Chiefs of Mission wasn't anything that went through the operations center?
With regards to the WikiLeaks Mitigation Team, did you have any involvement with that team?
I am aware of their work, but no.
And, have you seen anything from their work?
I have been copied on some emails, but it is from pretty far out of my lane. So, I haven't really engaged or know much about it.
And then, the Department of State briefings to Congress, are you familiar with the briefings to Congress?
So, the Operations Center didn't do anything in order to put together a message for
Ambassador Kennedy or anyone else from the Department of State that were reporting to either the Senate or the House?
I can't say, no I don't think that we did. I am not aware of anything that we did to feed into that.
And Ms. Bitter, right now I thank you for answering my questions on such short notice. Major Fein might have some questions for you or the Court might.
You Honor, the Government has no questions for this witness.
Okay. Ms. Bitter thank you very much for coming to testify today. I think you are excused.
Thank you very much.
Ms. Rena Bitter, director of the Operations Center at the Department of State steps down.
Your Honor, I think that is all the Department of State witnesses that we have in
If we could, perhaps have ten minute comfort break, and then pick up the 793(e) motion?
Alright. The Court is in recess for ten minutes. Let's start again at quarter to 11.
This Article 39(a) session is called to order. Let the record reflect all parties present when the Court last recessed as being present in Court.
Before we proceed the Court is prepared to rule on the defense motion to compel identification of Brady materials. That motion was presented before argument yesterday.
[BEGIN Appellate Exhibit 141 131]
Defense moves the Court to exercise its inherent discretion to order the Government to identify or separate the Brady material when providing discovery to the defense. The Government opposed this. After considering the pleadings, evidence presented, and argument of counsel, the Court finds and concludes the following:
1.) Defense asserts the Government has provided the defense with 12 pages of Brady material taken from a [missed word] investigation working document review of the Office of the National Counterintelligence Executive [ONCIX], Office of the Director of National Intelligence [ODNI], the Information Review Task Force [IRTF], Defense Intelligence Agency [DIA].
Additionally the Government has provided the defense with approximately 9,000 pages from the Federal Bureau of Investigation [FBI] which contained Brady material and additional discovery. The pages are redacted. The defense asserts the FBI files are not text searchable.
2.) There are four available facilities where the defense can store and access FBI files.
1.) Trial Defense Service Office, Fort Meyers, VA available since 12 October 2010
2.) Trial Defense Office, Fort Leavenworth, KS available since 22 June 2011
3.) Trial Defense Office: Fort Meade, MD available since 10 June 2011
4.) Trial Defense Office: U.S. Navy War College, RI approximately 30 miles from Mr.
1.) Trial Defense Service Office, Fort Meyers, VA available since 12 October 2010
2.) Trial Defense Office, Fort Leavenworth, KS available since 22 June 2011
3.) Trial Defense Office: Fort Meade, MD available since 10 June 2011
4.) Trial Defense Office: U.S. Navy War College, RI approximately 30 miles from Mr.
At the request of the civilian defense counsel, Mr. Coombs, the Government provided facilities in Rhode Island to make it easier for him to access and store classified information without having to travel to the national capital region.
3.) The Court [missed words] defense counsel representing the Accused, Mr. Coombs, civilian defense counsel; Major Hurley, individual military counsel, and Captain Tooman, detailed defense counsel.
The Accused released original individual detailed defense counsel Major Kempkes and Captain Bouchard [missed word] Article 39(a) session on 15 and 16 March 2012. Captain Tooman was detailed to the case during the Article 39(a) session 24 through 26 April 2012, and Major Hurley was added to the defense team as individual military counsel on 6 June 2012 during the Court Article 39(a) session. Defense did not request an additional staff of defense team.
4.) The Accused is in pretrial confinement at Fort Leavenworth, KS. There is a safe to store classified information at the Fort Leavenworth trial defense office.
5.) The Court is [missed word] whether the Government is required to release the non Brady portions of the FBI file under [Rules for Court Martial] R.C.M. 702(b)(2) as material to in the preparation of the defense. The bulk FBI discovery given by the Government to the defense thus far was Brady material. There is no evidence that the Government has "padded the file" or otherwise exercise bad faith in burying the Brady needle in a haystack of FBI files disclosed.
6.) Under [Rules for Court Martial] R.C.M. 701(a)(6) [missed word] require the Government to identify or separate what material it disclosed in discovery as Brady material. See United States v. Warshak, 631 F.3d 266 (6th Cir. 2010)
declining to order the Government to organize an index of discovery, when not required
by Federal Rule of Criminal Procedures 16.
The Court has not been presented with any military cases addressing this issue, however the Court agrees with the 5th Circuit that there is no general duty that requires the Government to direct the defense to exculpatory evidence within a larger mass of disclosed evidence. United States v. Skilling 554 F.3d 529 [missed word] (5th Cir. 2009).
7.) The defense relies primarily on United States v. Salyer, 2010 WL 3036444 (E.D. Cal.) and United States v. Hsia 24 F.Supp.2d 14 (D.D.C. 1998). Both of those cases involve "open file" cases with far more voluminous discovery than issued in this case, and in each there was evidence that the prosecution dumped the haystack of discovery requiring the defense to find the Brady needle. In Salyer the Court accepted the general rule set forth in Skilling and Warshak that as a matter of case management ordered the Government to identify Brady material [missed word] the Court described as a massive [missed word] documentary evidence collected over years consisting of multiple Gigabytes, pages numbering in the millions, and hard copy information filling more that two pods or storage containers.
8.) Discovery is voluminous in this case, but not nearly to the extent as in Salyer or Hsia. To date the Government has provided the defense with more than 43,886 documents consisting of approximately 411, 366 pages, approximately 9,000 paged the defense alleges has been [missed word] from redacted disclosure [missed word] and the redacted FBI files are a small part of the total discovery to date. There is no evidence the Government is padding discovery to hide Brady material.
9.) The Court finds no [missed words] or general rule that the Government is not required to sift through each item of discovery to separate or identify Brady information contained in a larger mass of disclosed evidence.
The defense motion to compel identification of Bradymaterial is denied.
[END Appellate Exhibit 141 131]
[Missed entire sentence.]
And that would be Appellate Exhibit 141 131. Next issue is the defense Motion to Dismiss Specifications 2, 4, 5, 7, 9, 10, 11, and 15 of Charge II, which are the charges under 18 U.S.C. Section 793(e) and Article 134 in the Uniform Code of Military Justice.
The defense Motion is Appellate Exhibit 88. The prosecution response is Appellate Exhibit 89. Is the defense ready to proceed with oral argument?
Yes, your Honor. Your Honor the [missed word] challenged as being void for vagueness. The Courts are clear that the standard is the statute written so that a person of common intelligence within common understanding of the law would know that the conduct is prohibited.
Here, the phrase "relating to the national defense" is vague. The motion that the defense submitted discusses the historical development of that phrase and the way the Courts treated that phrase.
What that development makes clear is that from the 40s when the phrase was first looked at up until today, the Courts have acknowledged that that phrase is vague, though they haven't ruled that was unconstitutional for vagueness, the Courts have acknowledged that it is vague.
They have made that acknowledgement by using the limiting instructions and putting judicial gloss on that phrase.
Well, why can't this Court do that?
Your Honor. The defense's position is that for the past 70 years the Courts have been putting judicial gloss on this phrase.
Certainly this Court could do that, but it is the defense's position that at some point when you put a gloss on top of gloss on top of gloss the judiciary does not put itself in a position where they are legislating rather than letting the statute speak for itself.
And, that is the defense position just based on the amount of gloss that has been put on this phrase "relating to the national defense". It is clearly vague. Along those lines, you Honor.
The phrase "injury to the United States or advantage to any foreign nation" is also vague. Again, that is a phrase that is padded a lot of judicial gloss put on it.
It is also a phrase in the disjunctive, and so it is possible that an individual could be charged under this statute where there is no injury to the United States at all, and still be found as guilty.
Additionally, as that gloss [missed word] on that phrase, the Courts started to make the injury to the United States to the advantage of any foreign nation a modifier of the mens rea, which is under the statute is willfully.
But really, that phrase is a modifier of the type of information. It is not a modifier of the mens rea, and so you see from the Courts, they started to take that phrase and make it a mens rea issue when really it is a type of information issue.
And finally your Honor, in particular the word injury is vague. It is unclear, first of all, what type of injury is required. Is it physical injury? Is it embarrassment?
Is it monetary injury? That is unclear.
And, what is also unclear is the extent of the injury that is required. Is it minimal injury just the scantest little thing or does it have to be some sort of grave injury?
And, so because that is unclear then no Courts have cleared that up, it is the defense's position that that is unconstitutionally vague.
Additionally, you Honor, the defense's position is that this is an over broad...unconstitutionally over broad as well.
Of particular note is the...some of the language used by the Morison Court where they talk about national security being related to the security of the public.
National security is not a phrase that is meant to protect the Government from things that are embarrassing as national security as contemplated by the statute is the security of the people to have information and be able to understand what their government is doing.
Certainly, this statute could reach a lot of protected speech, and as such we feel that this is over broad. Subject to your questions Ma'am?
Thank you. [missed word]
Prosecution (Morrow) Your Honor, the Government opposes the defense motion to dismiss the 18 U.S.C. 793 as neither unconstitutionally vague or substantially [missed word] violation of the First Amendment.
With respect to the vagueness argument, your Honor, the Government maintains that that statute 793(e) provides fair warning to persons of ordinary intelligence.
In fact, the phrase "relating to the national defense" has been repeatedly challenges by defendants on the basis of influence on [missed word] or vagueness and it has survived scrutiny.
As you know, the Supreme Court in Warren v. United States over the language employed by the predecessor statute for 793(e) specifically the turn of phrase "related to the national defense" or "connected to the national defense" was sufficiently [missed word] to [missed word] with scope, and as the defense notes, while certainly the Courts provide further judicial gloss to the phrase "relating to the national defense".
Defense has failed to establish why further refinement didn't not have any vagueness concerns [missed word] at the Supreme Court as already found the insufficient [missed word].
And in fact, that judicial gloss is argued that more protection for defense than required by the Court.
According to this, the Court should find that phrase "relating to the national defense" sufficiently definite and the Accused argues the contrary [missed word] by a Court of the United States.
The defense also challenges the phrase, "to the injury of the United States or to the advantage of any foreign nation." That phrase also provides the fair warning to [missed word] due process clause.
The fact is outlines in the Government's brief. That phrase is in additional scienter requirement when the defendant is charged with transmitting information relating to the national defense instead of the tangible items listed in section 793(e).
In that sense, it is more accurately characterized as a limiting factor rather than the phrase that invites some uncertainty as to its scope. But setting aside even that...
So when the specifications are issued here, the Government is asserting information rather than tangible objects?
We did your Honor, just because of the nature of computer files. We thought it was prudent to add that additional scienter requirement.
But, setting as that question whether the phrase is an additional scienter requirement, any vagueness concern for the statute are mitigated by the other scienter requirement in section 793(e), namely willfully.
It requires the United States to prove the Accused acted willfully. And, that said, the Supreme Court has repeatedly recognized and as this Court has recognized in its Article 104 ruling, a scienter requirement indicates a [missed word] vagueness with respect to the fair warning requirement.
And, additionally, even with respect to the specifically the "willfulness" requirement with 793(e), the 4th Circuit with Morison looked at that and used that for denying the defendant's challenge to vagueness in the statute.
With respect to over breath your Honor, that's like the defense assertion of [missed word] vagueness, section 793(e) is [missed word] on the challenge on the basis of over breath and as briefed by the Government, the [missed word] Court in Eastern District of Virginia and the Morison Court in the 4th Circuit both took similar approaches to that over breath question [missed word] concluded after [missed word] various terms of [missed word] that the statute was as narrowly and sensibly tailored to serve the Government's limited interest in protecting national security.
And what does the Rosen Court say about the [missed word] First Amendment are involved or is there?
The Rosen Court?
As I recall, the Rosen Court was dealing with defendants that were part of a lobbying firm, and so there were some First Amendment issues in that case, because they obviously didn't have a relationship with the Government like the Accused has in this case with signing a Non Disclosure Agreement and the Army, et cetera.
So there were some First Amendment rights dictating that case. In fact, the Government maintained that there are no First Amendment rights [missed word] this case, and actually we put this in out brief that I am not arguing today, we think the defense should be precluded from challenging the statute today on its face, [missed word] First Amendment [missed word].
But, [missed word] Rosen Court's analysis...Rosen Court...they construed various terms [missed word] in the statute and they found no substantial over breath based on that.
And, despite pervasive case law on the over breath question the defense argues that section 793(e) proposes substantial dangers to the free speech rights of reporters.
Of course, the defense has put it into raise the constitutional rights of third parties in the over breath challenge, but they failed to really establish why the application of the statute in a hypothetical case somehow renders the entire statute [missed word] and it has got to be a substantial number of documentations in relationship to the [missed word] of the [missed word]...application of the statute.
And finally, you Honor, with respect to the rule of [missed word] able to sort of mentioned in a small paragraph of the defense brief, they argue the rule [missed word] requires any ambiguity statute to be resolved in the accused favor.
The Government agrees with that characterization to the extent that there is some narrow construction and a broader construction and there is also some vague or grievance ambiguity in the statute.
The Government does not agree that the rule of lenity compels this Court or any Court to take the drastic step of declaring the statute unconstitutional.
Subject to your questions your Honor.
Okay. Thank you. The Court has been informed by the parties' brief as well as the oral argument and will be prepared to rule on this issue before the close of business these Article 39(a) sessions days.
Are the Court prepared...?
[to defense] Yes?
Ma'am I was just going to say that the defense is prepared to go with the lesser included offenses argument.
Alright, why don't we go there and move onto that motion.
That would be
Appellate Exhibit 103, [Appellate Exhibit] 105, and [Appellate Exhibit] 123 for the defense.
[Appellate Exhibit] 103 is our Lesser Included Offense Request.
[Appellate Exhibit] 123 is our reply to the Government's response. And, [Appellate Exhibit] 105 is our response to the Government.
Alright, why don't we start with the lesser included offenses that the defense
Yes, Ma'am. Our main concern with lesser included offenses is that the Accused is placed on notice as to what he will have to possibly defend against, based upon the charge sheet.
And, in this case these [missed word] was placed on notice that the violation of AR [Army Regulation] 380-5 captured within Article 92 would in fact be a lesser included offense under the charges...in Charge II that allege a 793 offense of 18 U.S.C. 793.
That would be specifications 2, 3, 5, 7, 9, 10, 11, and 15.
Now, in order to determine whether or not we do have a lesser included offense C.A.A.F [United States Court of Appeals for the Armed Forces] has directed Courts to implement the elements test, and when you take a look at the cases - the Jones
case, the Alston, Arriaga case, the [Barn?] case - they all lay out guiding principles for a Court when it comes to deciding whether or not and offense is a lesser included offense.
Those are that the offense do not have to use identical statutory language.
Second, that the fact that they are [missed word] alternative names of satisfying the lesser included offense does not mean that it is not the lesser included offense.
Third, that if elements that are not only statutory elements, but especially the Government is bringing in a[n Article] 134 offense, as alleged elements are elements that the Court has to look at with regards to doing the elements test.
Well, what are you relying on that for? The test as outlined by the Court of Appeals of the Armed Forces [C.A.A.F.], isn't it statutory elements test base?
No, you Honor. It is not.
[missed word]...and actually, if you, I believe...I believe it is in either Arriaga
or it is in Alston, the Court states especially with [Article] 134
offenses...134 offenses are made specific based upon how they are alleged.
Because, as you look at it...a[n Article] 134 offense is just you have done some conduct and that [missed word].
So, in order, the statutory elements for that, you obviously cannot rely upon the statutory elements.
You have inform the statutory elements by how the Government has alleged the element in the charge sheet.
So, C.A.A.F. [United States Court of Criminal Appeals for the Armed Forces] has made clear that you [missed word] not only to the statutory elements, but how the Government has plead going back to what we commonly refer to - as for a trial counsel at least - you own what you plead.
So, the trial counsel choses to plead certain elements in a specification that becomes the elements test for this Court in determining what will be a lesser included offense.
And, it has to be that way, by way of the Alston case.
The Alston case used a statutory analysis, where, what they did is they [missed word] aggravated sexual assault was a lesser offense or rape.
And, what was clear from the Court analysis was there were three different ways that the Government could prove the rape, and in this case, as plead, only one of those three was at play.
And, because of that, when the Alston Court looked at it and said as charged, aggravated sexual assault is in fact a lesser included offense, because the force element that was charged within the rape offense met with the force element that was required by the aggravated sexual assault.
The Government's whole argument as to the reading some other way to proving a lesser included offense, and therefore it cannot be a lesser included or some other way of proving the greater, and therefore this can't be a lesser included, falls flat on its face when you look at Alston.
If the Government's theory was correct, then C.A.A.F. [United States Court of Criminal Appeals] would have not decided Alston the way it did.
Well, looking at the part of Alston that says the "[missed words] understanding of the words of the statute each act of force described an Article 120(t)(5)(C) at a minimum includes an offense of touching that satisfies the bodily harm element of Article 120(t)(8)."
So, the Accused [missed word] never going beyond the statutory element of analysis.
Well, okay again, in this case they are looking at the one aspect of how the force within
rape satisfies the aggravated sexual assault.
The Court looks just below they...C.A.A.F. [United States Court of Criminal Appeals for the Armed Forces] recognizes that there are two other ways that it could be proven.
And so, in this instance, it is how the charge was alleged that makes the difference between how the Court is looking at it.
And, again, within the Alston case, and I believe within the Arriaga
case, C.A.A.F. [United States Court of Criminal Appeals] talks about [Article] 134 being a statute that the elements, again, as we all know, if it was certainly a statutory elements test then this Court would only go with what the elements are.
And, what are those elements? Some conduct, and that [missed word] good order, discipline, or service discredit.
And, here we have the additional [219 offense?] so [missed word] clause 3...?
If the Government, again, when you are charging [an Article] 134 offense, if you are stuck just [missed word] with the statutory elements, then two things would be problematic with a[n Article] 134 offense.
You would not look to the specification to see what that alleged conduct is, because clearly by alleging certain conduct you may invoke a lesser included offense.
It depends on what you allege for the conduct. And, even this instance, when a Government has brought in the 18 U.S.C. 793 offense, they are bringing in the offense and they are bracketing off to that, the clause 102 language.
That is not the statutory elements for the [Article] 134 offense as brought in by clause 3.
That is an election on the part of the Government.
So, again, if you were stuck with just the statutory elements, then you would never consider when you are doing an elements test, if clause 1 and 2 language, of any clause 3 offense.
So, it simply can't be the case that you are limited solely to the statutory elements.
It is in fact, how the Government has plead the offense. That is important.
And, that becomes a controlling principle when the Court is taking a look at whether or not in this instance the [Army Regulation] 380-5 offense is in fact an LIO [Lesser Included Offense] of the charged 793 offenses.
And, looking at that, our brief and our reply brief goes through the analysis that the defense recommends that the Court take.
And, just briefly, without repeating the entire argument, you look at the 793 offense, and generally what you have there is an unauthorized possession of some information of some information related to the national defense that the soldier either had a reason to believe could cause damage, or maybe it could cause damage or injury to the United States or some foreign nation.
And, that soldier gives it to an unauthorized party. And, then as pled you add to that the service discrediting conduct to prejudice good order and discipline language.
An Article 92 offense under [Army Regulation] 380-5 involves a soldier with unauthorized possession of classified or sensitive information, and then again, an unauthorized disclosure of that information: either through through knowing, willful, or [missed word] conduct.
When you look at how these offenses are charged, and you use the elements test you cannot have an 18 U.S.C. 793 offense without a having a violation of Article 92.
It is just not possible. The Government has indicated...
...that is where I am confused. How can you not have a 793(e) violation without having there was in existence a lawful general order?
Because, and this is where it is very important, you take a look at before the [Genois?] case, Chief Judge Cox talked about the fact that Article 92 is implicitly by necessity part of...part and parcel of a 793(e) offense, and the defenses cited in Court to the concurrent opinion by Judge Cox.
And that was based upon the necessarily included test basically. Now, the Court has gone to an elements test but an important part of the elements test is you have to take a look at the definition to inform what the elements mean.
And, that is where you go back to it is not...the fact that the elements used different statutory language does not mean it is not a lesser included offense.
So, we look at our analysis, the elements one and two...the existence of the lawful general regulation, and the Accused duty to obey it, is part and parcel to the first element of the 793 offense, the unauthorized possession of information.
Think for a moment how can soldier have an unauthorized possession of information related to the national defense, and then again as pled, with the exceptions of specification 2 and 11, everything that is pled is classified, how can the soldier have an unauthorized possession of classified information and not run afoul of AR [Army Regulation] 380-5 when you look at...?
...isn't it an evidence based analysis versus a statutory elements based analysis?
If you are looking at that theory [DNH cases?] lesser included offense of arson?
So, if you look at the definitions, lets look at [Army Regulation] 380-5 then, paragraph 1-1 which the defense cited: "This regulation establishes the policy for the transmission, transportation, and safeguarding of information requiring protection in the interests of national security. It primarily pertains to classified national security information, now known as classified information, but also addresses controlled unclassified information, to include for official use only and sensitive but unclassified."
So it is clear that the regulation and duty to obey it, the...which is ultimately the unauthorized possession here, but also could the fifth element or the sixth element [missed word] if you look at the Government's version of the elements are but the conduct prejudice to good order and discipline or the service discrediting, that conduct can be captured by the duty to obey this regulation. [Army Regulation] 380-5
also indicates it covers the handling and classified instances of information.
The regulation prohibits among other things: collecting, obtaining, reporting, removing for any personal use whatsoever of any material or information classified in the interest of national security.
So, when you look at the definition, and that is what the Bonner Court and the Alston Court asked the Court to do. What do the elements mean?
When you look at the elements and you define them you see that both the 793(e) offense and the [Army Regulation] 380-5 require an unauthorized possession of information.
And, when you look at [Army Regulation] 380-5 in the unauthorized possession of information under 793, it would have to be an unauthorized possession of [Army Regulation] 380-5.
You simply cannot have one without the other. There is no way to have committed a 793 offense without committing a [Army Regulation] 380-5 offense.
It simply impossible. And, that is because the regulation governs this conduct.
So, in this instance...
...[missed word] my hypothetical then?
[missed word] The [sounds like "ah broad"?] case of larson, and it is charged that you by submitting false receipts stole a certain amount of money from the Government. Is [missed word] claims then in the lesser included offenses of larceny?
Your Honor, I have to give some thought on that. I don't think that is a comparative analogy to this, because in this instance, when you look at what is the main difference between 793 offense and [Army Regulation] 380-5.
The main difference here is that the information could be used to the injury of the United States or to the advantage of any foreign nation.
That is the main difference between a 793 and a [Army Regulation] 380-5 offense.
The Government's assertion that you can prove a [Army Regulation] 380-5 offense without also, in this case prove a [18 U.S.C.] 793 without also proving a [Army Regulation] 380-5 is just a red herring, because there is no way that you can do that.
And so, that when you look at what would be a lesser included offense, that is the factor that you have to assess.
Take a look at the duty need to obey this regulation, and the violation of that duty. Compare it to the unauthorized possession.
So, if a panel determined that this was an unauthorized possession of classified information that was disclosed to a third party, but did not involve information that could cause damage to the United States, or aid any foreign nation, then [Army Regulation] 380-5 would be the lesser included offense, they would go down to, because that would be the conduct that is prescribed by regulation.
When you look at element three of the Article 92 offense, the knowing, willful, or negligent disclosure, and you compare that against the 793 offense of the willfully communicating, delivering, or transmitting...both of them involve providing information to an unauthorized person.
So, what is clear in this instance, that all three elements of the Article 92 offense are necessarily included within the [18 U.S.C.] 793 offense.
Both necessary included under a pre-Jones analysis and necessarily even included under a Jones analysis when you take a look at the elements and you define what those elements mean.
Then it is clear in this instance that a soldier cannot commit an 18 U.S.C. 793 offense, without first committing a [Army Regulation] 380-5 offense.
And, therefore, when you cannot commit one offense without the other, all of the cases...all the recent cases say that is a lesser included offense, if it cannot be committed without doing lesser.
With respect to specifications 2 and 11, the Government in its motion talks about the fact that they are not required in that instance to prove either classified or sensitive information.
That is their main objection, I guess, in addition to the others that the 380-5 is not a
lesser included offense.
But, again if the Court looked at what the definitions are for the elements, you will see that even in this instance when it's not a classified or sensitive information being alleged, it still falls under a lesser included offense.
And that is because of the requirement of the Government to prove that this information is related to the national defense.
And, if you look at what the Government is alleging in their response motion, they indicate that the Government has to prove that this information is related to the national defense, and they cite national defense Information for 18 U.S.C. 793 offense is information that is closely held by the Government, and 2.) potentially damaging to the United States or useful to the enemy of the United States if disclosed without authorization.
Therefore by the Government's own admission that they are proving and necessarily proving that this information is potentially damaging to the United States or useful to an enemy of the United States, they are proving that sensitive information.
And, in order to get to that, you take a look at how [Army Regulation] 380-5 defines sensitive information. It defines sensitive information as "any information, the loss or misuse or unauthorized access to or modification of which could adversely affect the national interests or the conduct federal programs."
Thus, if the Government proves that this information is related to the national defense, in will of necessity also prove and establish that this information is sensitive information, as defined by [Army Regulation] 380-5.
So, even in the situations where the Government has not pled that it is classified...classified information, that would be specifications 2 and 11, again, because they own what they plea...with regards to 2 and 11 they still have to prove that it is related to the national defense and when you look at what that means by definition both what the Government acknowledges its burden under 793.
And, what [Army Regulation] 380-5 indicates what is sensitive information, that the Government by necessity would have to prove. And, unauthorized possession of information under [Army Regulation] 380-5.
The fact that they are maybe in this instance, even if the Government is correct that there is another way of showing a violation of [Army Regulation] 380-5 without showing a violation of [18 U.S.C.] 793 is not important.
Arriaga talks about that. That does not indicate that this is not a lesser included offense.
As charged now, this is why it is important to see how the Government charges it, when they grabbed on the clause 1 and 2 language to these offense.
They have by necessity required...a [missed word] that this information could be...excuse me this information is prejudicial to the good order and discipline or service discredit.
And, as the Court knows especially from analysis of [Article] 134 and consideration by the Supreme Court in Parker v. Levy of the fact that we are concerned about the vagueness
of [Article] 134.
The discussion within the clause 1 and 2 is that many of the offense that would normally have been found under clause 1 and 2 and [Army Regulation] 380-5 is an example of that.
The duty to obey the regulation and the violation of the regulation is the conduct prejudicial to good orderly disciple or service discredit.
So, again, this Court can look to see in clause 1 and 2 language as being the language that would bring in the first and second element of the [Army Regulation] 380-5 offenses.
Because, again that is exactly the conduct that would cause the Government to be able to prove that someone has done something service discrediting or prejudicial to good
order and discipline.
This services discrediting is failing to abide or obey a general regulation...a lawful general regulation.
The prejudice to good order and discipline is the unauthorized disclosure.
That is the clause 1 and 2 language bringing in the first two elements of the [18 U.S.C.] 793 offense.
Now, turning to specification one of the Article 134 offense. This is the general [Article] 134 offense that the Government has alleged.
Even in this instance, [Army Regulation] 380-5 a violation of 380-5 would be a lesser included offense.
You would have the same argument for the first two elements with regards to the prejudicial order and discipline or service discrediting.
But, with regards to third element, again that is why we have to educate ourselves based upon how the Government has pled it.
In this case the Government has pled this as being a disclosure of information either wrongfully or wantonly causing intelligence to be published on the Internet.
And when you look at how they pled this and the day range that they pled this, it is clear they were basically pleading this as to all the other specifications.
Because, what they are trying to bring in, is basically all the information that Pfc. Manning may have allegedly disclosed either wrongfully or wantonly to WikiLeaks over this date range period of time.
The Government in their oral argument before indicated that the video was an example of information that was intelligence.
And, that was there way of getting around their previous motion regarding this
But, they also acknowledge to the Court that additional information falls within the specification. They didn't indicate what information.
When the Court looks at the date ranges it is clear it is all the other specifications...all the information that they are charging, they are bringing in under the general [Article] 134 offense.
And that is the defense laying out the various reasons why this Court did not find the [Article] 134 offense being improper because of the Article 92 and the existence of the 380-5 regulation is not problematic in this case, because, again, when you look at what the elements mean, they define the mens rea in this case by their alleging the specification wanton or wrongfully.
Wanton is defined in two other places within the bench book and the definition is the same. It is reckless but may connote willfulness or disregard the probably consequences, and that is describing a more aggravated offense.
Thus wanton as alleged in the clause 1 and 2 of the Article 134 offense, could potentially include both knowing, willful, or negligent.
So, even though it doesn't use identical statutory language that is not problematic in this case, because it still can bring in the conduct that Pfc. Manning is being alleged to have committed.
And, again, just because there are different ways of potentially proving the greater offense is not problematic in this instance either, because of the fact that
Alstonand Jones indicate that it is not an issue if the greater offense can be proven in a different way.
The lesser included offense in this case as pled is still a lesser included offense. If the greater offense has other elements such as could be published or was published, or could be available to the enemy, that is not problematic either, because again greater offense can have additional elements.
It is clear by the way the Government has charged this that all three elements of an Article 92 offense would fit under a specification one of Charge II.
And, as such, if the panel members consider Pfc. Manning being potentially guilty of this offense, they should also have an ability to take a look at the potential
of the lesser included offense.
And that is what the defense is saying our client has been placed on notice for, and we are specifically requesting support to instruct on those lesser included offenses.
Alright. Now, lets look at the Government's lesser included offenses. What is
the defense's position on those?
That would be [missed word] response motion is at Appellate Exhibit 105.
With regards to the Article 80's. Here if...we would not dispute that under certain circumstance Article 80 could be a lesser included offense, but the as alleged in this case, I don't see Article 80 being the lesser included offense.
It is kind of similar to if you had someone charged with premeditated murder. I don't think attempted murder would be a lesser included offense if you actually have deceased person.
In this case, he is being charged with disclosing information, and under the Government's theory it rises to the level of espionage.
But, there can't be really an attempted espionage in this instance, if the Government's theory is the information was in fact disclosed.
I believe if I understand your argument that you are arguing to me that attempt can be an a lesser included offense of charge. It is just, as they charged they are complete offenses.
Okay. That they are being raised by the evidence issue?
With regards to the lesser included under the [18 U.S.C.] 641 offenses, we would concede that the misdemeanor offense less than the value of a thousand dollars could be a lesser included offense, certainly in a federal Court.
The defense did not find anything to indicate that when you brought in a clause 3 offense, that you were limited to the clause 3 offense.
So, unless the Court were inclined to indicate that that you were limited to simply to the clause 3 offense, it would seem that when you bring in the clause 3 offense you bring in the lesser included offenses to that.
With regards to the [18 U.S.C.] 1030 offenses, we will have a motion later today on that, assuming they survive, then we would agree that the general Article 134 offense, would be a lesser included offense to the 1030 offenses.
The [18 U.S.C.] 793 offenses and the [18 U.S.C.] 641 offenses for arguments that we have previously raised, we would say are not lesser included
The [18 U.S.C.] 793 offenses we would say under the authority of the United States v. Borunda. And our argument, in this instance, why the [Army Regulation] 380-5 Article 92 offense has to be a lesser included offense, that the Government could not create a clause 1 and 2 offense as an LIO [Lesser Included Offense].
With regards to the [18 U.S.C.] 641 offenses, we would say under our previous argument in United States v. Kick that the Government is pre-empted from creating a larceny like offense.
It is unclear from their motion, what conduct they would allege for the first element within the [Article] 134 offense but it is clear from the [18 U.S.C.] 641 offense in general that it would have to be larceny type offense.
And the [Wurst?] opinion squarely is on point here. Indicating that the Government cannot create it...a 134 offense. That is a larceny type offense. Article 121 creates the field in this regard.
Now, talk to me a little more about...where are you [missed word] that talk about you believe that Article 134 can be a lesser included offense of the [18 U.S.C.] 1030 specifications?
Within my brief Ma'am it is the footnote one, the very first page.
There I just concede the possibly of the lesser included, I raise the issue of the attempt being not a lesser included.
I concede the [18 U.S.C.] 641, and I concede the possibility of a 1030. I didn't see any other reason why if the [18 U.S.C.] 1030 offenses survive, why the members could not determine that Pfc. Manning, if proven to have done what is alleged, did some conduct on his computer that was prejudicial to good order or discipline or service discrediting. So...
...I am just looking [missed word] instructions, but for purposes I am looking at the [missed word], which basically a lesser included offense that talks about Article 134 offenses and holds that all three clauses are separate theories of proving an offense. So...
Yeah, the Government could though alleged the clause 1 and 2 language within their charged offense, so that's...I would agree that had they left out the clause 1 and 2 language and just went a clause 3 offense then they would be stuck with the clause 3.
I think you avoid Medina, because they allege the clause 1 and 2 language.
Now, what would be [missed word] is the defense's position via maximum punishment of such an offense should I instruct as the lesser included offense?
With regards to...just the [Article] 134 for the [18 U.S.C.] 1030...?
We would say, and we are going to do this for the next go around. If the fact that it survives, but we would say that it is akin to an Article 92 offense.
In this regard, some conduct that was done that is prejudice to good order and discipline. So, we would say it is a two year max.
Alright. And, does the defense specifically want those as an LIO [Lesser Included Offenses]?
For the [18 U.S.C.] 1030 offenses? Yes, Ma'am. We would like to have all clip-able
LIO's [Lesser Included Offenses].
So, the LIOs [Lesser Included Offenses] that you, that the defense would like and would request would be this [missed word] intent of it is raised by any evidence.
The less than one-thousand dollars for the [18 U.S.C.] 641 offense?
And the [Article] 134 clause 1 and 2 for the [18 U.S.C.] 1030(a)(2) offense?
...and the [Army Regulation] 380-5...
...and the [Army Regulation] 380-5
for the [18 U.S.C.] 793(e) offenses.
Okay. [Long pause.] Alright, thank you.
Your Honor, would you like me to address the defense..?
Lets go, exactly the way they did it? Let's use theirs first.
Your Honor, Article 92 is not a lesser included offense for the 793 offenses or specification of one of Charge II.
The elements test is clear.
First, you have to identify the elements, either in specification or in the statute. And then after the elements are actually defined, compare those elements, and determine whether or not the alleged lesser included offense, is a subset of the greater offense.
All the elements of the lesser offense are also elements of the great offense, and their lesser included offense is proper. Put another way, it is impossible to prove the greater offense, without first proving the lesser offense.
As lesser included offense's instructions know. However, where the lesser included offense requires elements not required for the greater offense, then no lesser included offense is required.
Then how in this case would it be possible to prove [18 U.S.C.] 793(e) without proving an 92 violation?
The defense argues that the unauthorized possession piece of the 793 offense necessarily implicated 380-5, but it is not correct.
Not only is [Army Regulation] 380-5 not included in the statute of the elements test, or under the specification, again, under the elements test.
There are additional ways to prove unauthorized possession. So, this is a fact the defense is arguing. The defense is arguing a fact based argument not under the elements test, you Honor.
So, again with the defenses' proposed LIO's [Lesser Included Offenses] for Article 92, the elements of a proper Article 92 offense in violation of [Army Regulation] 380-5 require the existence of a AR [Army Regulation] 380-5 and also the Accused duty to obey that regulation.
Here, the specification nor the statute require those elements. So, now I am turning your Honor, to the Government, the first LIO's [Lesser Included Offenses].
I am following the same element's test outlined in Jones. And before I mention the Medina case, the Appeal to the Armed Forces case, and in that case, they determined that clause 1 and 2 are Article 134 are not inherent lesser included offenses of clause three offense, but instead, depending on the specification they may be.
Here, clauses 1 and 2 are actually included in the specification, so accordingly they should be considered lesser included offenses.
Now, the [missed word] in Medina case it does say that...alright [Article] 134 may be lesser included offenses...So do you read the language where it says similarly "in a contested case" and reviewed court is here considering on appeal "must consider whether or not the prosecution proceeded on the premise or theory that the conduct alleged under clause 3 was also prejudicial to good order [and discipline] or service discrediting."?
Here we are considering whether to affirm it. And, in such case the members will have normally been instructed as to the alternative theory.
So, in this case the Government is arguing that because you have both...or all three clauses...1, 2, an 3 that separate lesser included offenses instructions is 1 and 2?
Yes, your Honor.
And, what is the Government yield the maximum punishment to apply for such a lesser included offense should I give it?
It would be akin to a [18 U.S.C.] 793 offense, Ma'am. It would be a 15 max.
Alright, that will be a motion for the next time. Proceed.
Your Honor, so the defense's main argument that all clauses 1 and 2 are not lesser included offenses of the 793, it relies on the Borunda case, which actually as we already discussed in prior motions, your Honor.
The Borunda case is an Air Force Court of Criminal Appeals case, and in that case they ruled a lawful general order regulation describing certain misconduct exists and that regulation is punitive, that misconduct if charged will only describe the [missed word] violation of Article 92 not as an Article 134 offense.
The issue here is not whether or not the [18 U.S.C.] 793 offense as charged is a 92 offense, the Court [missed word] foreclose that issue.
Instead, the defense is arguing that it propose a lesser included offense, not address in Borunda, should be an Article 92 offense to the inclusion of Article 134.
The prosecution's position is you cannot, you should not read Borunda to apply a lesser included offense, but instead to the actual charged offense, as the language of Borunda indicates.
Further, even assuming that Borunda does apply to lesser included offenses, the issue of whether or not they [missed word] prove [missed word] the clause the lesser included offenses...clause 1 and 2...is a violation of 380-5.
If the panel does not find that the information for the specification is alleged that the information is classified, for instance, and that it is national defense information...if the panel does not conclude that it is neither classified nor national defense information, it would fall outside the purview of [Army Regulation] 380-5.
...let me...now I am getting a little confused. Okay, so we have [18 U.S.C.] 793(e)...alright...what would your lesser...look at the [18 U.S.C.] 793(e) specification. [missed word] lesser included offense under Article 134 under your theory?
Sorry, can you repeat?
What would be offense B if it was a lesser included offense in violation of Article 134?
Under the defense's argument in Borunda?
No. Under the Government...I instructed on the lesser included offense for specification 3 of Charge II, under clauses 1 and 2 of Article 134.
How would you have that offense read?
I think that would be an issue of instructions. We will get to that, your Honor. And the Government will be prepared on that front to argue the [missed word] instructions which should be given for that particular offense.
For here, we are talking, this being the elements test. Then this should be a lesser included offense, and then again instructions when we get to that phase in the motion's practice, we will be ready to talk with you about it.
Alright. [missed word] looking at the wording of specification with the language in violation of 18 U.S.C. 793 as the portion that is submitted from the specification, if I misunderstood you...I thought you were taking out different parts of this specification in your lesser included offense.
For example, unauthorized possession such as information related to the national defense. Is it the Government's position that that language is going to be stripped out in the lesser included offense?
It could be your Honor for lesser included offense. Yes, Ma'am.
So, is the Government proposing multiple national security...or is it multiple...or lesser included offenses with the only excepting unauthorized possession...excepting relation to the national defense?
The Government argued that if the panel does not find the information...as the specification alleges so...is classified and that it is national defense information...that would it would fall outside of the defense's theory that if it only be an
Article 92...what the Borunda rather precludes because 1 and 2 elements.
So, the Government's position with regarding to the language of the lesser included offense, we would argue would be an issue when we get to instructions, you Honor. And, the Government would be ready at that time.
And, your Honor. Just very briefly to comment
on the [18 U.S.C.] 641 issue. The defense argues and I know we have already dealt with the pre-emption doctrine before, your Honor, so I will spare your time about what is the pre-emption doctrine analysis, but here the acute of misconduct is not publishable by Article 121.
That the accused is not charged with capitalizing. Take [missed word] like Article 121 punishments, so this actually would fall outside the purview of Article 121, which the defense argues preempts the [18 U.S.C.] 641
Your Honor, if you look, the Bench book does under the [Article] 121 portion of the Bench book, it does specify that in Note 19, 3-46-1 or in larceny Article 121.
Alright, and what is the Government's position on intent?
The Government relies on it motion regarding the intent, that the case of United States v. Brown confirms that an attempt is a lesser included offense with the Owens test.
And, this is an issue that...the defense argues a fact based argument, not an elements test.
...I think the defense agrees that an attempt can be a lesser included offense. Alright I guess it says [missed word] raised by the evidence, okay.
So subject to your questions.
Okay. I think I asked them.
[To defense.] Yes?
I don't really respond to anything that the Government raised, but to direct the Court to the portion in the Arriaga case that references both the statutory nominance and
the elements as charged.
It would be on page six if you printed it from [Wesla?], I guess. I am looking for a pin cite. But, it is within the analysis of the Court...
...just give me just a second, while I pull Arriaga here.
...Sure. It is right above footnote...or I guess the addition five that is addressed to the opinion by the pin cites.
...alright issue five you said, what page is that on?
It should be page six if you print it. You see where it say, the burglar specification, and it details the specification.
...unless page five is different than [missed word]. I have Discussion A on lesser included offenses. Where are you in relation to that?
You see where it lays out the elements.
Ah...yes. Okay. We are on page six...seven, okay.
So, it lays out the elements of burglary and then it takes a look at as charged. And there the Court says, regardless of whether one looks at strictly to the statutory elements or to the elements as charged, that house breaking is a lesser included offense of burglary.
And then it says, clearly while the offenses charged in this case, clearly alleges the elements of both offenses.
So, in this instance, the way the C.A.A.F. [U.S. Court of Criminal Appeals for the Armed Services] was looking at this, was not only the statutory elements, but they were also looking as charged in order to do their elements test.
And, that is why it is so important, cause the Court did the same thing, when it takes a look at 793 offenses.
Alright, I will highlight that, and take it into consideration.
Alright. Anything else with respect to lesser included offenses issue?
Nothing from the defense, you Honor.
No, your Honor.
Alright. this is probably a good time to break for lunch. Unless the parties have anything else that you would like to raise at this moment?
No, your Honor.
No, your Honor.
Alright. How long would you like?
Till 13:30 your Honor?
Alright. The Court is in recess till 13:30.
Please be seated. This Article 39(a) session is called to order, let the record reflect all parties present when the Court last recessed. [missed sentence]
Alright, at issue now is the defense motion to dismiss specifications that are in violation of Title 18 U.S.C. 1030.
And that should be Appellate Exhibit 90 and 92 for the defense.
Okay. Alright, I have Appellate Exhibit 90 is the defense Motion to Dismiss for Failure to State an Offense Specifications 13 and 14 of Charge II.
Appellate Exhibit 91 is the Government Response to the defense Motion to Dismiss Specifications 13 and 14 of Charge II. And, Appellate Exhibit 92 the Defense Reply. Okay, one moment. Please proceed.
Even if that were true that would not state an offense under 18 U.S.C. 1030. This motion and pretty much the specifications turn on what does the term "exceeds authorized access" mean for purposes of 18 U.S.C. 1030.
And when the Court is trying to determine the meaning of a statute. United States v. [Star?] military case that we cited controls for statutory interpretation.
And in accordance with [Star?] and I will use my opportunity at this point to go
through the guidance that [Star?] provides in order to argue why this Court should in fact dismiss the specifications.
I will first start off discussing the plain language of the statute. Then, I will go to legislative history. Then the case law.
Then the rule of lenity. And, then finally the constitutional implications of the Government's interpretation.
So, starting first Ma'am the plain language of 1030.
Congress defines within section 18
U.S.C. 1030(e)(6) what the term exceeds authorized access means.
And, under that bridge the Congress states, the term exceeds authorized access means to access a computer with authorization, and to use such access to obtain or alter information in the computer, that the accessor is not entitled to so obtain or alter.
That is the definition that is applied for 18 U.S.C. 1030, and it is intended to apply to all the statutes in 18 U.S.C. 1030.
This language is plain and unambiguous, and what it basically says that you exceed your authorized access when you go to some place within the computer by bypassing perhaps a technical restriction or by hacking into the computer and obtaining information that you do not have authorized access to.
For instance, if my client had used his access on the SIPRNet that hacked into another section of the SIPRNet that he did not have authorization to by either going around the password requirements, or by somehow guessing at the password.
That would be an example of exceeding authorized access under [18 U.S.C.] 1030.
[18 U.S.C.]1030 is not intended to address misappropriation of information, or misuse of a computer. It is intended to address unauthorized access to a computer.
That is the purpose of [18 U.S.C.] 1030. It is clear. It is not ambiguous, and the defense would argue that based upon that, that the allegations of the Government that exceeding a Term of Use, does not state an offense.
If the Court believes that the terminology within [18 U.S.C.] 1030(e)(6) is not unambiguous, then you would go to the legislative history in order to determine what did Congress mean by that section.
And, in this instance, the legislative history fully supports the defenses interpretation. In 1984 1030 was enacted, and going back to that time period. That is really when we have an explosion of computer use.
And, so Congress was attempting a crime that had not that had not really been previously on the books, and that was hacking into computers. It was basically to try to go after computer hackers.
But, within the 1984 version, it stated the following: That a person who normally access a computer without authorization, and that the first way, or the second way, having accessed a computer with authorization, uses the opportunity such access provides, for purposes to which such authorization does not extend.
A 1984 version would have in fact supported the Government's interpretation now.
But Congress amended that in the 1986 and then replaced that phrase, or having accessed a computer with authorization, using the opportunity such access provides for purposes to which such authorization does not extend, with the phrase, or exceeds authorized access.
And when you look at the legislative history behind that it is clear that Congress' intent was to eliminate the misappropriation aspect of [18 U.S.C.] 1030.
And when you look at the change, at least from the Senate report, which the defense cited, both from Senators Mathias and Leahy.
They commented favorably on the change of substitution the words exceeds authorized access for the pre-1986 language.
And they stated this would eliminate coverage for unauthorized access that aims at purposes to which such authorization does not extend.
This removes from the sweep of the statutes one of the murkier grounds of liability under which a Government employee's access to a computerized data might be legitimate in some circumstances, but in other circumstances criminal.
And, you look at that...what they are basically saying is that we eliminated the ground that would require somebody to take a look at the subjective intent of somebody...
Let me ask you a quick question on that one. [missed word] the Government brief, but it says that that portion that you just read to me was only applicable to [18 U.S.C.] 1030(a)(3) or 1030(a)(3) not 1030(a)(1)
or (2). Can you address that?
Well, with regards to that language of the change, when Congress made the change that is when they put in 1030(e)(6), exceeds authorized access.
And, that was intended then to provide the definition to all the other sections. So, that may be correct that initially that language was only applicable to that particular section, which even further bolster the defense's position that that was the section where Congress was concerned about somebody basically misappropriating information.
But, then Congress decided to eliminate that entire aspect of it, because it does turn on the subjective intent of the person.
So, if I go to a computer, and I access information, and then later decide that I am going to use it in an inappropriate way, where my authorization for use, does not apply, I have not committed a [18 U.S.C.] 1030 offense.
But, if somebody else when they access that information, apparently has that improper purpose in their mind, the various objective intent, they have committed a [18 U.S.C.] 1030 offense.
And, when Congress looked at that, that is the murkier grounds by [missed word] they were concerned about.
And, by eliminating that, they made this not a misappropriations statute or misuse statute. There are plenty of laws on the books to address that.
They left this as unauthorized access statute, a computer hacker statute. Congress even further clarified this change in 1996, when it very helpfully for the defenses purposes, clarified the interplay between the section of [18 U.S.C.] 1030, and the espionage statute.
They stated that [18 U.S.C.]1030(a)(1) would target those persons who deliberately break into a computer to obtain properly classified Government secrets and then peddle those secrets to others, including foreign governments.
In this sense then, it is the use of the computer which is being prescribed, and not the unauthorized possession of access to or control over classified information.
So, again, Congress indicated that, "Look, we've got espionage statutes addressing misappropriation of information...misuse of information." This 1030 is designed to address unauthorized access, mean breaking into a computer.
When you look at even the definition of...well actually the name of the statute, Computer Fraud and Abuse Act, this isn't a misappropriation of information act, this is the computer fraud and abuse act.
And, when you look at it, it really is very similar to our trespass laws for real property. We have trespass laws for real property, and then we have larceny for the personal property that you might steal.
So, if you go on somebody's land, you might make a trespass, if you didn't have authorization. You steal something from there, then you committed a larceny.
Here, this was Congress' way of doing a trespass statute for computers. You [missed word] into a computer that you are not unauthorized to, you have committed a trespass, you have committed a violation of the Computer Fraud and Abuse Act.
If you then steal something from there, or misappropriate the information in some way, you have will not committed some [missed word] offense, in this case it may be a 730 offense, a 793 offense.
It may be a [Army Regulation] 380-5 offense, but it certainly is not a [18 U.S.C.] 1030 offense.
This is also kind of similar to the idea, if your Honor would entertain burglary.
If you were a person who goes to somebody's house at night without authorization with the intent to commit a crime, and you break in.
It is burglary. If you go to a person's house, being invited, even with the intent to commit an offense.
And, you steal something inside someone's house. You haven't committed a burglary, you have committed a larceny, because you an invitation to come into the house. It is no different here.
The Government is not looking to intent, if Pfc. Manning did not have the authorization to go to that particular area, to look at that information. There was no password.
So, is it the defense position that the use banner that the Accused accessed as he was going in, is not an unauthorized access?
That is correct, Ma'am, because that...and the Government says something like "explicit...implicit" and they try to make it by definition that is not really there.
And, actually when I get to the implications of the Government's position I can show that more fully.
So, notwithstanding the actual statute in plain language, unambiguous. And, look at the legislative history clearly, indicating what Congress was intending to do. Case law also supports the defense's position in this regard.
Most notably, the 9th Circuit, just over a month ago, decided the Nosal case. And, in that case, the 9th Circuit, en blanc, considered this very issue: What does exceed authorized access mean?
And the Court stated that exceeds authorized access, within the Computer Fraud and Abuse Act is limited to violations of restrictions on access to information, not restrictions on its use.
The 9th Circuit found that the interpretation of exceeds authorized access to be more consistent with the statutory language and the structure of the Computer Fraud and Abuse Act, as well as the legislative history.
Notwithstanding this, if you take a look at the other cases that in spite of the legislative history, in spite of the Congress' clear intent, and the language of the statute, the John and Rodriguez case, which the defense gives to the Government...
These cases the defense submits are wrongfully decided. And, if the Court looks at them, both cases...you will see, it is a very unsophisticated analysis by the Circuits.
They don't address at all the legislative history. In fact, and most importantly, they do not even discuss the 1986 change to the statute, where Congress subtracted the clear language that addressed the improper use with a exceeds authorized access.
And, in spite of the language, legislative history and case law, if there is any ambiguity still left, then as the Court knows you go to the rule of lenity In this regard the defense submits that you would have to resort to the rule of lenity.
But, if the Court is going to go to that, then the rule of [lemity?] requires that if the...there are two ways in which we can interpret a statute. One is more broad, and one that is narrow.
The Court should apply the one that is narrow, in order to scoop in the least amount of
[missed word]. In this case, that is exactly what the 9th Circuit did in Nosal.
It stated in, and what the Court should also determine, that is Congress really wanted to make this a misappropriation liability statute, where restrictions on term of use, really control whether or not you in fact committed a violation of [18 U.S.C.] 1030, then the Congress should have spoke in a more clearer language.
The Court should resist the urge of lifting the legislative pin of in order to go with the Government on its argument that this is actually a misappropriations statute.
And, here I would like to talk about the expansive reading of exceeds authorized access. If in fact we go with what the Government would have this Court determine, then you would have a problem with [18 U.S.C.] 1030, not being internally consistent.
And, in fact, you would have a problem with [18 U.S.C.] 1030 being unconstitutional at least in one of its provisions, because of the interpretation. Again, 1030 has to apply to all of the provisions.
When you look at [18 U.S.C.] 1030(a)(2)(c), that controls exceeding authorized access by obtaining information from a protected computer.
Congress the defines the protected computer, as being basically a computer connected Interstate Commerce, the Internet.
So, as Nosal would have that law of saying that all of the people will be swept into the statute if it really were a misappropriations statute, anytime you violated a term of use of any sort of computer, whether it be your employer or in banking, or in...
We have seen the case and we cited it, where somebody lied about their age and even their gender on a Web site and was prosecuted for that under [18 U.S.C.] 1030.
The 9th Circuit said that is the concern.
This is constitutionally vague in that regard. But even set away from those types of thought processes, lets just go with the Government's banner, where they say, because you go to that computer, and you see a little banner, and you click ok and you go forward, if you immediately lose apparently your right to do anything, and if you do anything inconsistent with your authorized use.
Well, if the Court wants to see a clear example of why that would not be really play out, all you have to do is look at Appellate Exhibit 56.
This is the prosecution's notice to the Court of the computer forensics regarding the programs and the music and the videos that was not authorized on the Government computer, and this is just the list of it from a very few amount of computers that we have been able to find and do forensics on.
So, presumably every person here who has downloaded music or a video or some program has exceeded authorized access under the Government's version, because they have done something that the little banner that comes up there, prevents you from doing.
Is there a regulation that talks about when you can use computers for personal use?
I believe and this is going back to my [missed word] days, but I believe it is [Army Regulation] 600-20. And...
...Well, that is where I am going. Is there any.. [missed word] is not authorized to do that?
Right. I believe that within the regulation from my memory and I would have to check, but it talks about that the ordinary [missed word] like a phone, puts in a phone and calls home, even thought it is a Government phone, but we are going to allowed people to do that, but we are not going to force them to go outside and use their cell phone.
Likewise perhaps even in the use of your computer check your personal email, might be personal, might be fine.
The problem here is that, that is not is what we have in that computation. We have actual downloading the videos, games, music, nothing that I would say that authorized that.
And, so clearly there the soldiers have exceeded their authorized use, but they haven't
committed a [18 U.S.C.] 1030 violation.
So, when you look at all of this, it clearly supports the defense's position on how the Court should interpret [18 U.S.C.] 1030.
But, lastly I will end with academic commentary in this area. 1030 prior to this case, was not something the defense was even aware of.
And as we started educating ourselves on this, we quickly came across the Professor Orin Kerr.
Professor Orin Kerr is probably thought more about this section and the statute than anybody on this planet.
I mean he has written extensively in this area. And, as you do research on him, you start to feel inadequate given his age and his accomplishments.
But, as you look there, he kindly indicates that...and he is our countries foremost expert in this field.
Exceeds authorized access should not be interpreted so as to allow for an inquiry into
Rather section [18 U.S.C.] 1030 should only capture whether the user bypassed technical restrictions, so as to access information that he was not entitled to so access.
Then Professor Kerr creates what he calls access that circumvents restrictions convictions by code.
What he said is when a user circumvents regulation by code, she tricks the computer into getting her greater privileges than she is entitled to receive. This normally can occur two ways.
First, the user can enter the username and password [missed word] with greater privileges. Or, second the user can exploit a design flaw in the software, that leads to the software to grant the computer user greater privileges than they otherwise should be entitled.
But, what Orin Kerr says is the abuse descriptions placed upon the computer by the employer does not control they have a 1030 violation.
And, really look at that, that is the only way that it can make sense for the Computer Fraud and Abuse Act.
So, the defense requests this Court to consider the motions that we have cited, in fact we probably written more criticizing the John and Rodriguez case, then the
John's and Rodriguez case wrote to discuss the analysis that the Government wants you to support.
Ultimately we ask that you dismiss these two specifications for failing to state an offense.
Before, we go let me just ask you a couple of questions. Any of those cases cited by the other side deal with [19 U.S.C.] 1030(a)(1), as opposed to the rest of the sections [missed word]?
No, Ma'am. Not to my knowledge. I think the cases we cite deal with just dealing with exceeding authorized access.
You do have [missed word] with the criminal, but you also have it in the civil section coming up quite often, and I don't...I don't know if [18 U.S.C.] 1030(a)(1)...but the important aspect here is that, that term within (e)(6) as the Nosal Court correctly determined, has to be applied to all the provisions, because Congress wrote that as a definition for exceeds authorized access and defining all the other provisions.
So, it really doesn't matter whether all the other cases is a [18 U.S.C. ] 1030(a)(1) or not, when all you are trying to determine is what exceeds authorized access.
Let me ask you one more question. The federal cases have dismissed the charge outright before any evidence is firm as in federal criminal procedure 12.
...to your knowledge is there any rule for military case or ruling that is comparable?
I would say, just then, when the Judge is looking at the specification, if even if assuming the Government's case...in this case, assuming that Pfc. Manning, they can prove that Pfc. Manning saw the user access, or user...permission.
Say, he has, and then went to the area that he was authorized to go to and obtain
And, even assuming they could prove that subjectively he went there to obtain that information with the requisite intent.
All that being assumed, this Court still would make a conclusion that they haven't stated an offense.
So, in this case it would just be a failure to state an offense, not an evidentiary issue, because the defense would be for the purpose of this motion, conceding each of the facts that the Government would like to allege in this case.
There is user banner that the individual saw. That the individual went to the area that he is authorized to go to but went there with the improper purpose, and then obtained the information.
All that, even assuming it to be true, does not allege a [18 U.S.C.] 1030 violation.
And so, as the Nosal Court said, the correct result in that should be a dismissal of the offense, not a later [R.C.M.] 917 motion.
Well, I guess that is where I am looking at this. Does the military even notice any jurisdiction?
The pleading alleges an offense, and I see no plea flaw that does what the Nosal Court did in the military. Are you aware of
Well, I think...I would have to get back to see I could find somehow.
I would probably say that under R.C.M. [Rules for Court Martial] 801, the inherent authority within the military judges power, when I judge is looking at how these rules should be interpreted.
You also look at R.C.M. [Rules for Court Martial], I believe it is 103 that the R.C.M.s and the M.R.E.s [Military Rules for Evidence] have to be interpreted in order to achieve a just outcome.
If the Government were alleging a specification that if the Court said, "Look, Government I assume all the facts you want me to.
You are not alleging an offense then. You haven't alleged, even assuming your facts.
There is no way I could let a panel come back with a finding of guilty on that. Then they show justice in this case, an accused should not be facing an offense, that the Court already knows would never survive a [Rules for Court Martial, R.C.M.] 917 motion right out of the gate.
If there is a factual issue that may, I guess, go over that hurdle of [R.C.M.] 917 then if the Court should in fact wait to see what a panel does, and then see how the facts play out.
But, in this instance, assuming every fact that the Government would ever want to hope for with regards to the access as far as the news or privileges and what not, there is nothing that they alleging that Pfc. Manning did that falls within the violation of [18 U.S.C.] 1030.
So, if you took [18 U.S.C.] 1030 out of play, you said that they alleged that he committed a...let's say a murder offense.
And, you ask, "Okay, who is the person you are saying that he killed?" And, there is no facts, no support, no information.
This Court would not allow the Government to start its case with...even if though they might have allege that a specification on its face looks fine, but once you see their supporting facts or theory for it...even assuming all the facts for them, this Court would say, "No." I would grant a [Rules for Court Martial, R.C.M.] 917.
So, in this instance we would say fairness would require specifications to be dismissed.
Alright. Thank you.
Your Honor, the Government opposes the defense Motion to Dismiss Specification 13 and 14.
The Government's theory that the accused exceeded authorized access under 18 U.S.C.
1030 is consistent with statutory text, legislative history, and case law interpretations.
Before the Government begins arguing on those three points, the [missed word] the [missed word]
theory of exceeding authorized access.
During the Article 32 investigation, the Government presented evidence relating to the limitations on the Accused access to Government computers.
The first was the warming banner as the defense and Court discussed earlier.
And, that warning banner was on both of the Accused SIPRNet computers. every time the Accused logged on to his Government computer using a password he was presented with that warning band.
And, the first sentence of that warning band stated the following: "You are accessing a United States Government (USG) information system that is provided for U.S. Government authorized use only."
Before proceeding, the Accused was required to click, "OK" on that window.
That is included too in the Government's brief.
Let me stop you there for a second. The hypothetical...the fact that the 9th Circuit basically in Nosal and the defense argument to me with showing me [Appellate] Exhibit 56.
So, any soldier who accesses a computer and puts a song on the computer can now be prosecuted under this statute?
Well the Government's position in that case, you Honor, would be...because they downloaded...[missed word] they downloaded a song, while they are sitting in the S.C.I.F. that doesn't necessarily mean they accessed a computer for an improper purpose. That is something entirely different.
That maybe, "Geese, you shouldn't have music on your computer, but..." accessing your computer for an improper purpose then going and downloading 250,000 cables is something entirely different.
I understand. But, when we are looking at the definitions as applied every section of that
I understand, your Honor.
Is the Government suggesting that I should look differently to the sections of that
No. We are not. I am suggesting that in that case, in that...if indeed the purpose of the individual at the time they accessed the computer was to obtain information from another protected computer, and not..again, I don't know, you know, that is not necessarily a protected computer.
I don't know how music comes from a protected computer. But, that is what at lease 1030(a)(2) sees as.
You have...the statute is intentionally...I am not going to read it but...it's
intentionally...one moment, you Honor.
It is intentionally accessing computer without authorization or exceeds authorized access and thereby obtains information from any protected computer.
First of all, when we [missed word] in that example presented by Mr. Coombs, I don't think a SIPRNet computer affects Interstate Commerce, which is why it protects a computer at least under the definition.
But, I mean, that is what I resolve, in my opinion, but...
Additionally, the Accused and members of his unit were required to sign a user agreement, and acceptable use policy prior to being granted access to the Internet and SIPRNet.
In fact, the best exception of the Accused unit used signed AUPs, so Acceptable Use Policies, of soldiers to create network accounts.
And, the Army's sample AUP, which was provided in the Government's brief require users to sign a document that states that "access to this/these networks is for official use and authorized purposes."
So, again, that is two separate limitations...purpose based limitations on the Accused's access to computers.
So, with that said, the Government's theory simply stated is this.
Because the Accused had access to a SIPRNet, computers was governed by a purpose based limitation or access restriction, the Accused exceeded his authorized access when he accessed the SIPRNet computers for an unauthorized or improper purpose.
For once, the defense and Government can be agreed on [missed word] of statutory interpretations, so I will just move to the statutory text first.
Describing point as the defense noted as the plain or ordinary language, under [18 U.S.C.] 1030(a)(6) as the defense stated exceeds authorized access, mean to access a computer with authorization and to use such access to obtain or alter information in the computer, that the accessor is not entitled so to obtain or alter.
So, the basic difference between the United States and the defense is this.
The Government maintains at least that some effect must be given to the word, "so," in the definition. Must have something dependent on it.
And as such, the only reasonable effect to be given, "so," is that "so" means in the state or manner indicating or expressed, as defined by Webster's [Dictionary].
And, given that meaning, the individual exceeds authorized access when he or she obtains or alters information that he or she is not entitled to obtain or alter in those
circumstances or in that manner.
The individual user may have been entitled to obtain information in some other circumstances, but in that manner or under those circumstances.
And, when that definition would do, is that it would encompasses a scenario where an insider bypasses some technical restriction, so in that manner.
And, [missed word] when an insider uses is or accesses his computer for an improper or unauthorized purpose it should be those circumstances.
To the second [missed word], the defense believes this Court should use the word, "so" entirely out of definition of exceeds authorized access.
The Government maintains, and this Court should find that, that is improper. That effect should be viewed as wrong by the statute provisions, so that no part is inoperative or superfluous.
What is the Government's position with regards to the Nosal case when they discuss that word "so" in a variety of manners on page four?
That is true your Honor, and I can talk about Nosal right now, but I think there are serious flaws, in my humble opinion.
I think the opinion is flawed. First, they agree, so "so" can be given any number of opinions.
And in fact, what the Nosal Court said is that the definition of exceeds authorized access is actually susceptible to the Government's interpretation. It is right there in their brief.
So, this is what they started with. They said "so" [missed word] some meaning, some think that it is ambiguous.
And, instead of as the basic [missed word] of statutory interpretation says...instead of taking that ambiguous...what they think is ambiguous language...and moving to the
legislative history, they did a [missed word], and they started talking about all these other...all the other ways that...as the defense agrees or thinks, that the statute is unconstitutionally vague or problematic.
So, in that sense it really did not consider the legislative history.
I know, you know, the defense believes that they did consider the legislative history but there are parts of the legislative history that are very important to this case, and to this Court's analysis that they did not even cite or consider. Defense didn't cite in 44 pages of single space brief.
And, what would those be?
In 1984, the predecessor to the Computer Fraud and Abuse Act was the Counterfeit, Access
Devise, and Fraud and Abuse Act.
And, so that version punishes the defense stated whoever has any access to a computer with authorization, [and] used the opportunity such access provides for the purpose to which his authorization does not extend.
And as the defense conceded, if we were before this Court in 1984 and that was the language used in the statute, there would be no question that the alleged misconduct in this case would fall squarely within the language of the statute.
So, in 1986 Congress passed the CFAA, the Computer Fraud and Abuse Act, and that Act provides and added to 18 U.S.C. 1030.
And at that time, the term exceeds authorized access was introduced to 1030(a)(1) and
(a)(2). And in 1986 bill explained the introduction in this way, and that is on page 2486 of the report.
Section 2(c) substitutes the phrase exceeds authorized access for the more cumbersome phrase in present 18 U.S.C. 1030 (a)(1) and (2), where having accessed a computer with authorization, uses the opportunity such access provides for purposes to which
the authorization does not extend.
The Committee intends this change to simplify the language of 18 U.S.C. 1030(a)(1) and (2), and the phrase exceeds authorized access is defines separately in section (2)(g) of the bill.
That is the full Committee's report. What the defense noted, or what the defense cited for this Court was the additional views of two Senators on the Judiciary Committee, speaking, as you know...speaking from the Government's perspective solely about 1030(a)(3).
Well, where is your evidence of that? What...?
Well, it is right there, I mean, [missed word] flat on face your Honor. I mean they were talking..." We want to talk about..."
And is that...?
...[missed word] authorities, I'm sorry is that legislative history included anywhere as an attachment from the Government?
...um, it's not an attachment, you Honor. It is cited to be...it's 16 pages...actually it's pretty short, I mean, it could be created in 30 minutes, but...we could provide that to you without a doubt.
I would appreciate that. Thank you.
Okay. It is worth having [missed word] again, so as I just stated, Congress substituted the phrase for the more cumbersome phrase in the 1984 version, and they intended that change to simplify the language.
And as I stated earlier, the defense wants the Court to focus on a comment plucked from another statute on the Senate report.
So, if I can just describe what the other statute was, your Honor. But, the Senate report was essentially two statutes.
It was the full committee's report and then it was the additional views of Senators Mathias and Leahy.
And, that section was actually voted to [18 U.S.C.] 1030(a)(3). It is clear, in fact the full committee even addresses this as well.
The Senators had a specific [missed word] on [18 U.S.C.] 1030(a)(3).
Specifically with respect to the Government realizing a federal employee, who for example, is responding to a FOIA request, and uses there Government computer to access the information, that technically they are not entitled to access.
And so, the full committee report that explained that fear in this way.
"The Committee wishes to be very precise about who may be prosecuted under the new
So, the new sub...just to back up for a second, the new subsection (a)(3) removed exceeds authorized access from that provision.
It only became a without authorization [30-85?].
The committee was concerned that a federal crimes statute could not be so broad as to create a risk that Government employees and others who were authorized to use a federal computer, would face prosecution for acts of computer access and use that while technically wrong, should not last to the level of criminal conduct.
So, with the new [missed word] did was it eliminated prosecutions to those without authorized access to federal computers.
And, in doing so, it removed what Senators Leahy and Matthias described as the murkier ground for liability under (a)(3) only.
So, it removed again, it removed exceeds authorized access from (a)(3) only. And, we know...we know really intended exceeds authorized access from bypassing...being more than bypassing some technical restriction, as the defense alleges.
On the same page of the report, from the Senate bill, says 2485 of the report...discussing the removal of predecessor to exceeds authorized access from subsection (a)(3), the committee explained that removal in this way.
"It is not difficult to envision an employee or other individual who while authorized to use the particular computer in one department, briefly exceeds his authorized access and produces data belonging to a department that he is not suppose to
That doesn't indicate bypassing some technical restriction at all. The Government maintains your Honor, that the legislative history very clearly...very clearly supports the Government's interpretation of exceeds authorized access.
And, what this really amounts to your Honor is, the United States is asking this Court to rely the holding of the full Senate report.
And, the defense is asking this Court to essentially cite or rely on [missed word] from
As for case law, you Honor, I think I have already been over this, you Honor, but as you are aware there is [missed word] the Circuits put on this issue.
The 5th and 11th Circuits have adopted the Government's interpretations, and the 9th Circuit in the Nosal case has adopted the defense's interpretation.
[missed word] again, I haven't looked at every case involved in this issue, but I did read the law review [missed word] that were provided.
Does the Government agree, I mean this is without a kind of half and half rule on the
cases right now?
[missed word] Can you say that again?
With the Circuits split, I mean I am agreeing with...
It's not half and half. It's not half and half.
[missed word] and the state comes in there and you have basically a lot of Courts on one side and a lot of Courts on the other side?
I agree with that.
I mean absolutely.
Um...again, I think that, or the Government maintains that in our humble opinion, the Nosal Court is their reasoning is flawed, and they simply [missed word]...they really didn't use sort of the directional method of statutory interpretation of what we sort of generally speaking of the method that we are suppose to use to
discern the intent of Congress.
We deal with the plain language, with the legislative history, and if there is some grievance or fatal ambiguity in the legislative history in the statute, I guess the ruling of language should...in this case, the Government maintains that there isn't any grievance or fatal ambiguity in the legislative history [missed word].
With respect to academic commentary, so the statement or Professor Kerr's argument, but uh...what is apparent to the Government from reading the article is that Professor Kerr believes that the law should only criminalize bypassing some technical restriction.
It essentially a proposal to make the law better. And, again that is not this Court's inquiry.
This Court's inquiry is trying to determine what Congress meant by exceeds authorized access in the first place.
And, of course we are not saying that the statute is perfect in every respect, but again, that is not this Court's inquiry.
Finally, you Honor, the defense takes issue with trying to discern, the subjective intent of a user when accessing a computer, and I would just simply state that it is the
Computer Fraud and Abuse Act.
Fraud requires us to look at subjective intent of a person.
How will you address the legislative history in 1996, when Congress talks about the although there is considerable overlap to 18 U.S.C 793(e) and section 1030(a)(1), as
amended by the NII [National Information Infrastructure] Protection Act the two
statutes do not reach the same conduct, section 1030(a)(1) to target those persons who deliberately break into a computer to obtain properly classified Government secrets and then try to peddle those secrets to others including foreign governments.
In other words, unlike existing espionage laws, prohibiting the thefts and peddling of Government secrets to foreign agents, section 1030(a)(1) would require proof that the individual knowingly used a computer without authority or in excess of authority for the purpose of obtaining classified information.
Where are you...
So, it's the use...
...sorry, your Honor...
...of the computer, which is being prescribed, not the unauthorized possession of, access to, or control over the classified information itself?
I don't think there is anything inconsistent with that.
The Government's not saying that...in fact this kind of goes to...it doesn't really go to that, but...um...we are criminalizing the use of a computer, in fact, in this case we are criminalizing the use of a computer that downloaded...allegedly downloaded 250,000 records from one place...and that is essentially what is essentially so dangerous about computers...is the ability to download large amounts of information.
We are not talking about somebody, an employee who takes a file, you know, in the copier room, makes some copies, puts this in their coat and walks out.
We are talking about the use of a computer in a very dangerous way.
So, in that sense, I don't think there is anything consistent with the statement in
1996. I guess, we are criminalizing the use of a computer.
But, we are criminalizing the use of a computer that downloaded a lot of classified
Again, one thing [missed word] about, there is two...there is a broad definition and a narrow definition. The broad definitions is that exceeds authorized applies to people who are authorized to use the computer, but do so for an unauthorized purpose.
The narrow definition would be exceeds authorized would apply to inside hackers, individuals whose initial access to a computer is authorized, but they access unauthorized information or files.
If I were to give the narrow definition in my instructions, does the Government contend that its evidence can survive a [Rules for Court Martial, R.C.M.] 917 motion?
Well, there are other considerations. I mean if that is the case your Honor, and you would like an ability to discuss that further.
I mean there are other considerations in this case, namely, as the evidence will show, the use of an unauthorized program to download information.
Well, that is where I am going with this.
Does the Government bring evidence...is there a contest on whether the Government's evidence would survive a...
...Well, I may agree with the defense in the respect that...
...[missed word]...if I gave the narrow definition?
...I am sorry, you Honor...
No, go ahead that is fine.
[missed word] I agree with the defense with respect that if we are not talking about some of the other facts in this case, and we are relying strictly on the warning banner and the Acceptable Use Policy, and establishing that the Accused accessed a computer for improper purpose, if it is just that, I guess I don't think the narrow would be...the narrow definition would...what I have talked with for today about...I don't think that would survive a [Rules for Court Martial, R.C.M] 917.
However, there are other...there are other facts in this case, that again, I would...the Government would...or if that is what the Court's going, the Government would like the ability to at least...would like the capability to offer the Court evidence.
Subject to your questions, you Honor.
I think I asked them. I would appreciate the full legislative history in this case...or the statute.
Just briefly your Honor. With regards to the Government's "so" argument, indicating that this Court should ascribe a definition to the word "so"...this it is important to see where the Government's argument came from.
This argument...no Court has raised this argument other than Nosal one.
Nosal one was the Court that gave the
Government its argument and then an en blanc Court in very short order reversed
So, the Government's argument of "so" and ascribing a definition to that two letter word, and making it carry to make this now a misappropriation act.
The only case that has ever looked at way, and that is apparently the Government's legislative history of why this now should be interpreted that way was Nosal one.
Which Nosal one said that, that two other word carried the day, and again the en blanc Court
came back quickly and said, "No."
The other two cases that the Government, primarily relies upon, the John and Rodriguez case...neither one of those cases cite the word, "so" as being important to the statutory interpretation.
Not only that, Rodriguez Court, if you take a look at their opinion, they even omit the word "so" from their definition of and quotation of 1030(e)(6).
Clearly indicating that the word "so"...contrary to what the Government is trying to say, is not an important word in the statute.
The Government says we are trying to basically ignore that word, we are not. We stated in our motion, much like the Nosal Court stated that, that word can be a connector.
When the Government starts looking at "so" and asking this Court to just use the legislative history, they are the one's who are asking the Court read in a definition of the legislative history to the word "so" that the legislative history does not support.
What is telling is that...and unfortunately for the Government...is that they don't have one case that cites the legislative history would support them. Not one case.
But then on a case that indicates that their interpretation of the legislative history is correct.
We have cited dozens of cases indicating that that is not the legislative history.
So, as Captain Morrow is that the 9th Circuit is wrong, and that his interpretation of the legislative history is correct.
He doesn't have a case that backs him up on that. It is his opinion.
With regards to the cases with the 50/50 split that the Court talks about...it is important to see which of those cases are criminal and which are civil.
Civil cases tend to be quick and short with their interpretation of [18 U.S.C.] 1030 because there is not a person's life at stake.
It is usually a monetary issue, and it almost becomes a fairness issue.
If you misappropriated another company's intellectual property Courts usually err on the side of righting that wrong.
But, when you look at cases other than John Rodriguez that the Government cites, and there are four of them.
And, I will provide those four cases for the Court. It is the Continental case, the Salum case, the Registered case, and the Czubinskicase.
These are the other case that the Government wants you to say support their interpretation.
These are the four other cases of the John and Rodriguez. None of these cases go into any legislative history whatsoever.
None of them cite the word "so" as being important to their determination of what [18 U.S.C.] 1030 should apply.
So, not marking this as an exhibit, but just providing this to the Court, as far as case law for you to look at.
What is the defense...again I am going back to the 1996 legislative history...where they amended...actually amended section [18 U.S.C.] 1030(a)(1) and part of that says that the amendment specifically governs the conduct of a person who deliberately breaks into a computer without authority or an insider to exceeds authorized access and thereby obtains classified information and then gives the information to
another person or retains it without delivering it to the proper authorities.
Professor Orin Kerr talks about the correct interpretation of (a)(1)1030, goes into the legislative history.
The cases we cite...and Nosal, contrary to what Captain Morrow says does in fact take a look, a long look at the legislative history, much more so than John Rodriguez do.
And, when you look at that, what they are taking about is the person who breaks into the computer, or the person who is the insider hacker, who as Orin Kerr talks about, uses their initial access, then to trick the computer the computer into giving them greater access to an area that they otherwise are not authorized to go to.
Or, uses someone else's user name and password in order to get back information that
they are not otherwise authorized to go to.
That is what
[18 U.S.C.] 1030 is designed to protect against.
So, it is the unauthorized access person, a person who has absolutely no access, the hacker; and it is the inside hacker, who, even though they have authorization to access the computer, they extend their authorized access in some way by a technical bypass way.
Again, either bypassing, the other one is protected restrictions, or by using some information that gives them greater access.
So, in this case, if the Government's case from evidence were that Pfc. Manning went to the NetCentric Diplomacy database and that database required a password and he hacked his way past the password, then you would have an exceeds authorized access.
Or, if there was some information on the NetCentric Diplomacy database that he was authorized to go to, but other information that he needed additional authorization, a password or otherwise, and he exploited a problem with the program in order to trick the computer in getting him greater access, that would be exceeding authorized access.
the key thing. When you look at, just from another standpoint of thinking, authorized access. That is like the trespass.
That is going some place that you are not permitted to go.
The use in this instance, and that is what the Government is really alleging, improper use.
They are saying that he had an improper purpose when he accessed information.
Not that he couldn't access the information.
So, in every regard, in fact, the evidence would show that the soldiers within the S2
section were directed to go to the Net Centric Diplomacy database. So, it is not an issue of not having the ability to go there.
It was what is your intent when you went there, and that that is a misappropriation, or a violation of term of use, not exceeding your access issue.
Still haven't [missed word] the legislative history, other words unlike existing espionage laws prohibiting the theft and peddling of Government secrets to foreign agents,
section [18 U.S.C.] 1030(a)(1) would require proof that the individual knowingly used a computer without authority, or in excess of authority for the purpose of obtaining classified information.
With this sense then is the use of the computer which is being prescribed, not the unauthorized possession to or control over the information itself.
So, if it is the use of the computer, that is being prescribe...I guess I am not having a problem now following how use of the computer...if you are using it for something that the computer says you are not suppose to use it for, it does within that paragraph of the legislative history.
Yeah, and I think when you look at the Nosal case and there they went through the legislative history, they make it clear that what Congress is trying to prevent here is basically an anti-hacking, so trespass.
So, the use here, or the access here is the going to an area that you don't have
So, that is the use of the access that the statute is addressing.
Do you have authorization to go there?
If so, then you are guilty if you do something improper with that information.
That may be another criminal offense you have committed, but it is the use of the
And, in this case the use of computer being do you have the authorization from an access standpoint.
Even with the Government's theory of checking the box, of "OK" in the authorized use AUP as soon as [missed word] you sign on.
It is not an issue of whether or not he had authorized access to that information, it is an issue of did he have an improper purpose when he accessed that
And that is what [18 U.S.C.] 1030 has no applicability to.
Okay. Thank you.
Thank you, your Honor.
Alright. Are there any other issues that we, I mean...I am sorry Captain Morrow are you...?
Your Honor, I have to give you the legislative history.
Alright, why don't we go ahead and have the legislative history marked as an Appellate
Alright that would be Appellate Exhibit 134.
And for the record, Mr. Coombs, [missed word]...I don't remember, did you cite the actual citations for the cases that you gave me?
I did not your Honor, but what I can do, is I will provide that information to the Court
[missed word] you go ahead and do that, rather than marking the cases as Appellate Exhibit.
Yes, your Honor.
Alright. Is there anything else that we need to address at this time?
No, your Honor by the defense.
We have a telephonic witness at 16 hundred is that correct?
That is correct, your Honor.
Yes, your Honor.
Alright. Then is there any reason we need to continue the proceedings, or should we recess and come back at five minutes to 16 hundred?
I would go with the latter your Honor.
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. Is the witness available via telephone?
Yes, your Honor.
Major Ashden Fein, lead U.S. Government prosecutor calls Ms. Catherine Brown, the current Deputy Assistant Secretary of State for the Bureau of Intelligence and Research.
This is Major Ashden Fein. I am a prosecutor in the court martial case of United States v. Private First Class Manning, and you are currently on speaker phone in a motion's hearing. Can you hear me well?
Thank you. And before we begin, I would first...are you in an area that affords you
And, are you currently viewing any documentation or any other documents in front of you that you are referencing?
Alright. Well, thank you very much. Can you please stand and raise your right hand?
Okay. I am doing that.
Ma'am, do you swear or affirm that the testimony you shall now give in this hearing, will be the truth, the whole truth, and nothing but the truth, so help you God?
And, finally, are you Ms. Catherine Brown, the current Deputy Assistant Secretary of State for the Bureau of Intelligence and Research?
At the Department of State, yes.
And, finally as a reminder if you feel anything you
answer from the questions you are asked requires a classified answer please
immediately notify the Court.
Excuse me, deputy...is this the secretary of state
Your Honor, Ms. Brown is the Deputy Assistant
Secretary of State for the Bureau of Intelligence and Research.
Ms. Brown, did you hear that last part about the
Okay. I am not going to turn the microphone over to Ms. Coombs, the defense attorney.
Mrs. Brown my name is David Coombs. I am going to ask you a few questions,
Okay. Is this...is your last name K-O-O-N-Z?
No. It sounds like that. It is C double O-M-B-S.
Oh. Okay. Thanks.
Not a problem. When I ask you a question, and you don't understand the question, feel
free to let me know, and I will rephrase it for you, okay?
And, if there is anything that I ask you that you don't know, and you have to guess, just let me know that, and we will move on to another question, alright?
Right, Mrs. Brown, could you tell the Court a little
bit about your background with the Department of State?
I joined the Department of State in August 1985 as a
lawyer in the Legal Advisor's Office, and I held mostly legal jobs with two
exceptions until August 2008, when I left the Legal Advisor's Office, and
became the Deputy Assistant Secretary for Intelligence Policy and Coordination,
which is my present position.
And, Ma'am could you tell the Court what you do in
My job in a nutshell is to work with Intelligence
Community representing the Interests of the Department of State to ensure that
intelligence activity support and are informed by foreign policy.
Now, in your role in that job, are you knowledgeable
regarding the Department of State's reaction to the disclosure of diplomatic
And, in general, can you tell me how so?
You ask an open...you ask whether I am familiar with
the Department's attitudes towards disclosure of diplomatic cables,
I mean I would say that as a general matter, we don't
like it. Those things were classified.
I understand. Now what I was asking was regarding the Department of State's reaction
as far as what it did when it became aware of the fact that certain cables
might be disclosed.
You're speaking in the context of this prosecution,
yes, I have.
And specifically, lets talk for a moment about the
Department of State's damage assessment.
Are you familiar damage assessment?
And, based upon that familiarity, do you know if the
Department of State has provided a copy of the damage assessment to the Court
and the parties?
Have you seen that document?
And, I imagine based upon being able to see it, you
have also review it?
And, from your stand point of...why were you reviewing
The document was compiled with input from our
embassies and consulates which came into Bureau of the Department.
And then the Bureaus prepared summaries distillations
of the input, and their own input, and the person who reports to me, who is the
director of our Office of Counterintelligence and Consular Support was asked by
Under Secretary for Management, Patrick Kennedy, to take on the responsibility
for combing all of those different reactions of summaries into a single
consolidated document, which I then ended up reviewing and editing, before
asking that be...perhaps be provided to the Under Secretary for his review,
before we did anything else with it.
And, when you say that you reviewed it, and
edited. What was your role in that
I received a draft, a beginning, a middle, and an
end, and I went through it from the very beginning to the very end, editing it,
asking that certain things be clarified, and otherwise doing a very careful
review of it.
And you are...I guess the previous draft that you
viewed, was that document secured anywhere?
Was it secured?
So, you reviewed the document, and you made some
notations on it. Are the previous
versions of the draft damage assessment preserved in any manner?
I don't know.
I was reviewing electronic copy and editing as I went along, I don't
know if it could be re-created.
This document that the Court has now is dated August
2011. Is that the document...the
latest document that you reviewed?
Yes...well it is a document that reflects the changes
and comments and questions and requests that I made with respect to the
document that reviewed very carefully.
So, it was...I guess I would call it a draft that I had approved because
it reflected my review.
Does this draft contain all the information collected
concerning the diplomatic cables, at least at the time of your review?
Um..I am not sure I understand the question. It obviously doesn't contain the cables
themselves. It contains...it was an
effort to pull together all of that input.
Now, with regards to all the input surrounding the
disclosure of the cables. Does the
draft damage assessment that you reviewed and finalized in August of 2011
contain all the information that the Department of State had with regards to
the disclosure of the cables?
It is my understand from the people responsible for
preparing the draft for my review that they attempted in that draft to reflect
all of the input, insight, assessments of the various bureaus of the department
as of the time that it went forward to Under Secretary Kennedy. Does that answer your question?
It does, Ms. Brown. As far as since of August 2011, are you
updating this report?
So, the content of the document has not changed in
any way since August of 2011?
The document remains a draft as it was provided to
And, again, just so I am perfectly clear, that draft
that was provided to the Court was finalized in August 2011, and no additional
content has been added?
wouldn't use the word finalize because it was a draft. But that is the draft as of August 2011
when it was provided to the Under Secretary for Management for his review as a
Now, is there any plans to do an updated report?
I would have to defer to the Under Secretary for
that. I to the extent that the
person that I supervise was asked to prepare the draft, he has not been asked
to spend additional time updating it, to my knowledge.
And, based upon just your knowledge, do you know why
no additional effort as been done to update the damage assessment since August
Well, one reason would be that it became evident
every quickly that the draft was out of date.
I think it was provided, as I recall, to the Under
Secretary, very close to the time that there was another significant release by
WikiLeaks of alleged State Department cables.
And, we...I wouldn't say that we were back to square
one, but we had a situation where we knew very quickly that a substantial
amount of additional time would then have to be devoted to updating the draft,
and I think it was a draft and I think it was a question of whether that would
be a worthwhile use of people's time.
Alright, so...and just to develop a bit of a time
line, and you correct me if I am wrong.
In August 2011 when the report, this draft report,
was completed, the event that you are talking about is the publication of the
un-redacted diplomatic cables by WikiLeaks in September 2011?
Catherine Brown I'm...[missed word]...I honestly don't exactly remember
the dates, but it was around that time.
Now, I am not in my office, so I [missed word] but that makes...that sounds
right to me.
Defense (Coombs) Alright. And then...
Catherine Brown ..I mean I am sure that there is a...yeah that is one
of those questions there is an answer to that can be discerned by reference to
objective facts, but yeah.
Defense (Coombs) And, with regards to, once that was done, whatever
date that might have been if the un-redacted cables being disclosed, then there
was apparently a determination, that the updating of the draft assessment would
not be worth the time to put into it?
Catherine Brown I wouldn't say there was a determination made. I would say that it was a long
document. It takes a long time to
work through it.
And it took me weeks...several weeks to work through
I know the Under Secretary told me at one point, he
was working his way through it; and we just never asked that that we doing
anything, whether we made a determination or whether it was one of those things
that was overtaken by events, I don't know.
thing I do know is that we would never attempted to update the document.
Defense (Coombs) Do you know if there has been any effort to at least
supplement the document in any way, based upon the fact that now the un-redacted
purported diplomatic cables were online?
Catherine Brown No effort to supplement that document...and if you
mean by writing an addendum or a supplement to it...the only additional work I
am aware of is that the drafter, the person who was responsible for putting the
draft together, has attempted to collect additional input and sticks it in a
file...if we hear something that "Oh this terrible thing happened because
of something that was online purported to be a State Department document,"
he may make some notation, or whatever, so that he would have access to that if
he needed to at some later time.
Defense (Coombs) Alright.
So that would be a person who might be tracking any sort of public
statement with regards to the potential damage from the purported cable? Is that correct?
Catherine Brown I don't think he is tracking public statements. I
think he is trying to keep track of internal statements for assessments.
Defense (Coombs) Alright, so...
Catherine Brown And by the way...by the way, to send you a
letter...if I were to send you something tomorrow saying, you know, my
negotiation was just totally screwed up, because of this WikiLeaks thing, and
that were something that he had access to, he might drop that in a little hold
file, I think, but maybe I...I don't even know what he is doing, whether it is
a list of what, but I have some sense that he is trying to stay current.
Let's put it that way...he's trying to stay current
in case he were asked to update it.
Defense (Coombs) Alright, is this his own personal avocation or is
this something that is part of his job position? ?
Catherine Brown Well...[missed word]...I think it is just something, since
he is the person in charge of putting it together, he is undertaking on a
certain voluntary basis.
Defense (Coombs) Could you give me his name Ma'am?
Catherine Brown Can we just leave it that he is the director of the
Defense (Coombs) I will need to get a...his name, but if you feel
uncomfortable giving that in open Court, would you feel comfortable providing
that to the trial counsel, so he can forward it to me?
Catherine Brown I would feel comfortable on the lawyer saying that it
is fine, he wants to appropriate it another time.
Defense (Coombs) That is fine, Ma'am. So, if you could Ma'am, just check into
that with regards to the name, and what I would ask is that the Government
counsel at a later date, contact you in the not to distant future to get that
name from you, okay Ma'am?
Catherine Brown No you are making...I mean, don't make a request to
me, make it to your...you know, just to the prosecutor.
Defense (Coombs) I will do that, Ma'am.
Catherine Brown Yeah.
Defense (Coombs) So, other than the draft damage assessment from
August 2011, are you aware of any other damage assessment by any other agency
concerning the purported diplomatic cables?
Catherine Brown Yes.
Defense (Coombs) And what other agencies, Ma'am?
Catherine Brown I believe that...I believe that the Office of the
National Counterintelligence Executive [ONCIX] has prepared some kind of damage
assessment, and it is possible that there is another work that has been done by
DoD [Department of Defense], or the Defense Intelligence Agency [DIA].
Defense (Coombs) Have you seen any of those other damage assessments?
Catherine Brown You know, I don't know if I have seen them or
not. I don't...it's conceivable
that they appeared in my inbox, but I don't recall that I really paid any
attention to them.
Defense (Coombs) And with regards to ONCIX [Office of the National
Counterintelligence Executive], when were you aware...
Prosecution (Fein) Your Honor, OBJECTION. This is outside of the scope of what the
defense asked this witness to testify to?
Judge Lind [To defense.] Why are we going into this?
Defense (Coombs) Ma'am, I asked for witnesses about the Department of
State that I could talk to...
Judge Lind ...about the Department of State.
Defense (Coombs) Correct, Ma'am regarding the diplomatic cables. This is...goes to whatever any
documentation might exist regarding the diplomatic cables. That is why I am asking this question.
Judge Lind Would you ask...
Prosecution (Fein) Your Honor...
Judge Lind ...yes, what is the OBJECTION?
Prosecution (Fein) Well, your Honor, the objection is within the
Department of State.
The question is now leaving the four corners of the
building or the organization of the Department looking to an executive...another
executive branch...or another executive [missed word]...and that Ms. Brown
first is looking...trying figured out and plus doesn't even know what is
classified and what isn't based off of the original scope.
Judge Lind Major Fein, that is...hasn't the Government establish
that, that organization has a damage assessment?
Prosecution (Fein) Absolutely, your Honor.
Judge Lind [To defense.] Then why are we going here?
Defense (Coombs) I want to find out when [missed word]...when she became
aware of that document. This goes
back to due diligence issues.
Judge Lind I'll let you ask that one question.
Defense (Coombs) Thank you.
Defense (Coombs) Ms. Brown, with regards to ONCIX [Office of the
National Counterintelligence Executive], when did you become aware of the fact
that they would have a damage assessment referencing [missed word] disclosed
Catherine Brown I became aware that they intended to a damage
assessment sometimes in early 2011, I would guess, but I am guessing.
Defense (Coombs) Okay.
And, you indicated you gave Ambassador Patrick Kennedy's name, so I take
it obviously you know, Ambassador Kennedy?
Defense (Coombs) And, did you know that Ambassador Kennedy testified
before the Senate Committee on Homeland Security and Governmental Affair
concerning the disclosed cables?
Catherine Brown Yes, I'm...well I was aware that he testified. I wouldn't have remember which committee
Defense (Coombs) Are you aware if he testified in front any other committees?
Catherine Brown I really don't...I just don't know what committee it
was...I wouldn't be able to tell you which committee it was. I would have just...it still would be a committee
of jurisdiction over the State Department, but I...
Defense (Coombs) Now, Ambassador Kennedy referenced something called a
Chiefs of Mission review.
He indicated that the State Department, once it
became aware of the potential release of diplomatic cables immediately asked
the Chiefs of Mission at the affected post to review any of the purported State
material. Is that something that
you are aware of?
Catherine Brown I am aware that he referenced, having asked Chiefs of
Mission to review purported State Department documents that were thought to be
included in a release of Defense Department documents.
I think that is what he...very early was...I think that is what he was referring to
in his testimony.
Defense (Coombs) Your standpoint of your experience...do you have any
experience with the Chief of Mission review?
Catherine Brown The...you mean the one that was referred to by the
Under Secretary in his testimony?
Defense (Coombs) You know that Ma'am...if that is the one you are familiar
with or are you familiar at all with a Chiefs of Mission regarding the purported
State material that was released?
Catherine Brown I think when he...I am having a little bit of
difficulty with your use of Chiefs of Mission review, but I think when Under
Secretary Kennedy testified he was talking about having asked certain embassies
and consulates that had documentation allegedly in this DoD release [Department
of Defense] to look at those documents and give him a sense of the implications
of that. There were much later for
purposes of the damage assessment, I was involved in a much larger number of
embassies were asked to look at a much larger number of purported State
Defense (Coombs) Alright.
Let's talk about the issue that you were involved with then, the much
larger review of the documents by the Chiefs of Mission. When did that start?
Catherine Brown I believe it was started in early April of 2011.
Defense (Coombs) And, what was the task or mission of the Chief of
Catherine Brown The one that was started in April 2011 was a request for
views from embassies, consulates feeding into bureaus that fed into the damage
assessment and I have already...that I earlier referenced the fact that views
were collected from around the world and sent into bureaus, which then compiled
their perspective and then a master document was created by the person in my
bureau who reports to me.
Defense (Coombs) Alright.
So, lets just go back just a little bit from the actual damage
assessment to the information that would have gone into the damage assessment.
The Chiefs of Mission review or their request to look
at certain cables from their particular embassy, am I understanding this
correctly, that the cables that were purportedly released from their particular
embassy, they were asked to review and comment on?
Catherine Brown You lost me on the question. You mean in April of 2011?
Defense (Coombs) Correct.
When you say that there was a much larger Chiefs of Mission review...
Catherine Brown ...by April 2011, as I recall, a significant number
of alleged State Department documents had been posted by WikiLeaks or made
available to the press. We were
talking well over 100,000 documents.
And, my recollection without the benefit of being in
my office is that at that time we were asking embassies and consulates to remit
those documents and the impact of those documents becoming public.
Defense (Coombs) And, when you were asking the embassies and
consulates to do that was it just the documents that were from their particular
Catherine Brown Yeah, actually, you know, I think we may have also
been asking them to take a look at documents that might become public.
I am a little vague right now, because I am not in my
office. I haven't had a chance to
look at the actual instructions.
But, yes, no, embassies would have...I think as a
general matter, people would have looked at documents which originated with
them...with their post.
I mean there might have been exceptions, but, you
know, I would be speculating to think what the exceptions would be.
Defense (Coombs) So, with regards to the review done by the individual
embassies or consulate, did they send something to the Department of State in
writing regarding that review?
Catherine Brown I would expect that they did.
I didn't personally look at what was sent in, whether
it was cables or emails or sent in some other way, but that was my sense at the
time that some things...that documents...responses were being sent in one way
or another, and evaluated, and compiled in the Department.
Defense (Coombs) So, you never personally ever saw any of these
Catherine Brown No, I wouldn't say that. It is possible that I saw them, that I
read some, that somebody showed something to me at one point, but I wasn't in
charge of drafting this document, so I was not attempting to make sure I saw
everything that came in.
Defense (Coombs) Now, whatever did come in, would that be preserved in
any way at the Department of State?
Catherine Brown Well, it would be an official communication so it should
be preserved, unless it were coming in and some unusual or informal way.
Defense (Coombs) And, the individual...I know you said you had a kind
of an editing aspect to the damage assessment. Who was the person who drafted the
damage assessment? Was that the
person who you didn't want to provide the name?
Catherine Brown That is the director of the Office of
Counterintelligence and Consular Support.
He was the master assembler and drafter, but drafts were provided to
I think if you look at the report you will see there
were chapters on different regions of the world or different functional issues,
and those chapters would initially have been drafted by the responsible bureau
and given to the person who reports to me, and he would have put it into a master
Defense (Coombs) And, that person as far as the position again was the
director of Office of Counterintelligence...?
Catherine Brown ...and Consular Support.
Defense (Coombs) And, so I guess if there were any of these
assessments by the Chiefs of Missions in writing, than that person as he is
putting all this together in one document would more than likely either have
that information or know where it is at?
Catherine Brown Um...well, he wouldn't be official custodian of those
documents, no. Those would be...if
it came in as cables they would be...the official custodian would be the person
who is the custodian of our, you know, our traffic...cable traffic.
Defense (Coombs) Okay. Do
you know after August of 2011 whether the Chiefs of Mission conduct any
additional reviews, or any of the embassies or consulates of the cables?
Catherine Brown Well, as I mentioned earlier, there was another
significant disclosure that occurred very soon after we sent the draft to the
So, presumably some of those they may have already
worried about thinking this might become public.
Others, perhaps they hadn't yet focused on, I don't
know. This problem hasn't gone
away. The problem hasn't gone away.
Today, you can imagine today some thing breaking in
the press or with a foreign Government somewhere in the world and an Ambassador
saying, "My life today as an Ambassador significantly hindered because of
this WikiLeaks issue." I don't
think it has ever ended. [laughs]
Defense (Coombs) And, I guess I am asking from September 2011, when
all the un-redacted cables were available online.
Do you know if any of the Chiefs of Mission or anyone
else conducted any other type of review or assessment?
Catherine Brown I am having trouble with your question, because they
seem repetitive to me of what I have already answered.
Defense (Coombs) I apologize...
Catherine Brown I don't understand. Are you asking me the same question
again? Or are you trying to ask me
a different question?
Defense (Coombs) I am attempting to ask you a different question. I apologize if it sounds
What I am trying to understand is if the damage
assessment was completed in August 2011, and as you said in...the cables
another large release was done immediately thereafter, and in fact in September
of 2011 all of the un-redacted purported State Department cables were available
online, so then I am just wondering from your position, do you know if anything
was done, now that all of the cables were out there.
We are talking September 2011 to now today June
2012. Was anything done to update
or capture any of these other possible impacts, that you believe might be
Catherine Brown I mean to me, this is the same question I have
already answered, so let me go back to what I said before. There was that huge disclosure, which
you recalled as being in September of 2011.
Defense (Coombs) Correct.
Catherine Brown Since that time there has been occasional reporting
from our embassies and consulates about issues arising because of that
disclosure, because of all of the disclosures, and my understanding is that the
director of our Office of Counterintelligence and Consular Support is
attempting to make some notation of that reporting in some form so that if the
Under Secretary were to say, "Could you update this draft?"
He would have some of a starting point for that. And, I think we will continue to see
reporting about damage from WikiLeaks conceivably for many years to come.
Defense (Coombs) Ma'am, I know, again, I am trying...
Defense (Coombs) ...[loudly] which means we could continue to get
reporting for many years to come...
Defense (Coombs) ...I'm not...
Catherine Brown ...if you are asking if there is another thing, like
in April of 2011...some new message that went out to Chiefs of Mission saying,
"Okay, now give us yet another assessment." I don't recall that there
Defense (Coombs) Okay.
Would just so you know, what I am trying to understand was whether the
document that we have now that has been provided is the latest assessment, and
Catherine Brown ...[loudly and frustrated] and I told you yes, that
there is NO subsequent direct version of that document. There is NO alternative. There is NO addendum to that document. There is NO supplement to that
All it would be, would be additional reporting cables
that have not been...sort of raw reporting is what we might call it that has
not been compiled, distilled, put into any kind of summary form that I am aware
Defense (Coombs) Alright, so the 2011 damage assessment that
identifies persons at risk or whatnot.
You not aware of any update to determine whether or
not the Department needed to do anything different with regards to Persons at
Risk or anything?
Catherine Brown No. I
didn't say that. The Persons at
Risk is a separate issue.
Defense (Coombs) I mean are you aware...
Catherine Brown ...I mean it's related.
Defense (Coombs) Okay...
Catherine Brown I mean the Persons at Risk issue...the cable was out
there with the names redacted.
You might have had the embassy say, "If the name
stays redacted this is the damage.
If the name becomes public the damage gets worse."
So, when the name became public, then you would know
that the damage would be worse. But,
lets say the named person says, "I want to stay where I am and see if I
can survive this."
And so that is what he wants to so, and then lets
says six months later a year later he says, "Oh my goodness, and now I am
finding that because my name is disclosed all these bad things are happening to
Then the Persons at Risk function is going to kick in
again, right? It is not like all of
a sudden, everybody's life is hunky-dory.
We will attempt to...it is my understanding that we
will attempt to protect people who were endangered by these disclosures,
regardless of whether they ask us to do that today or in year ago or a year
But that is different from the process of writing
that assessment, which attempts to take a lot of different reporting, and you
know, put together into a single document.
Defense (Coombs) So, to your knowledge Ma'am, do you know if there
have been other reports addressing Persons and Risk since 2011?
Catherine Brown I don't know.
I was only tangentially involved in the Persons at Risk Group. I don't know if they did a report or
just handled things on an individual basis.
Defense (Coombs) So, from your position, and your knowledge other than
the damage assessment from 2011, are you aware of any other reports or assessments
from the Department of State regarding the diplomatic cables?
Catherine Brown Well, I mean there are these Persons at Risk things,
but I am just saying, I don't know how they have been handled.
Well, I think they could probably tell you, how many
people we have tried to resettle because of the disclosures.
They could probably, you know, do you call that a
report? I don't know.
But, I am telling you about this damage assessment of
trying to pool everything together and saying, here is the damage.
Defense (Coombs) Understood Ma'am, so if I understand you correctly
then, other than the possibility of the Persons at Risk, you are unaware of any
other type of reports concerning any diplomatic cables since August of 2011?
Catherine Brown Right, and I am not saying that I am aware of any
content from Persons at Risk since 2011.
I am just saying that there were two different things.
Defense (Coombs) I understand.
Well, Ma'am again thank you for your time.
I understand that you were out of the office and you
were made available at kind of a last minute.
So, I appreciate you being willing to answer
questions. The prosecutor might
have some questions for you, and the military judge may have some questions for
Judge Lind Major Fein?
Prosecution (Fein) Your Honor, the Government has no questions for Ms.
Judge Lind Alright, this is Col. Lind. I am the military judge. Thank you very much for your testimony.
Catherine Brown Thank you.
Thank you for accommodating my schedule and sorry for the dog barking if
you didn't hear it, but...
Judge Lind We didn't hear it at all. Thank you.
Catherine Brown Good. Thanks.
Judge Lind Alright.
Is there anything else that we need to address today?
Defense (Coombs) Ma'am, with regards to the Motion to Compel
Discovery, I don't know if that would have the ability to take information from
the various Department of State representatives, whether or not we need to
address now the four subgroups within the Department of State.
And, if you look at Appellate Exhibit 97 and
Appellate Exhibit 100...
Judge Lind Hold on.
Defense (Coombs) ... [Appellate Exhibit ] 97 would be the Prosecution's response to the
Defense Motion to Compel Discovery No. 2.
Judge Lind Alright.
Defense (Coombs) And, if I could direct you Ma'am to page 14 on
And, then Appellate Exhibit 100 would be the
prosecution's Response to the Supplement to the defense Motion to Compel
Discovery No. 2.
Judge Lind I don't have Appellate Exhibit 100. I have [Appellate Exhibit ] 101. Is it a separate...
Defense (Coombs) I'll ask the court reporter. I believe it is [Appellate Exhibit ] 100.
Judge Lind The [[Appellate] Exhibit ] I have in this package are
98, 99, I have it here.
Defense (Coombs) So, if you look on that one Ma'am, that would be page
Judge Lind And then what was the page 14 on the other one?
Defense (Coombs) Correct, Ma'am.
And on page 14, you go to the last paragraph, starts off, "The
prosecution respectfully requests the Court deny the defense request for any
documents related to the Chiefs of Mission, the WikiLeaks Working Group, and
the Mitigation Team, and the Department of State's reporting to Congress in
December 2010 for failure to provide specificity or an accurate basis for its
Then if you go to, page five on Appellate Exhibit
100, it indicates that "the defense made"...this is the other sub
"In 10 May 2012 the defense made a specific
request for a specific entity under Williams for records from the Chiefs of
Mission, WikiLeaks Working Group, Mitigation Team, and Department of State reporting
to Congress. The prosecutions
agrees with the defense, the prosecution will [missed word] this obligation, i.e.
files that closely aligned entities under Williams. However, as stated above the processes
is challenging and time consuming, and the prosecution continues to work with
the Department of State to search Department of State records for Brady and
[Rules for Court Martial] R.C.M. 701(a)(6) material, including the four subgroups."
So, as far as the motion to compel discovery, it
looks like the later opinion by the Government is that this material is
discoverable. And, the Court, I
would hazard to select...
Judge Lind ...well, the prosecution appears to be discoverable
Defense (Coombs) Correct.
And, so for the Motion to Compel Discovery, I have two points then
raised so then the Government's due diligence obligation to go look at these
reports and that is why we asked for information...for witnesses to come from
the Department of State.
So, now, we know from Ms. Coffey that there are minutes
and agenda reports from the Mitigation Team. We know from Ms. Bitter that there are
Situation Reports that would put out bi-weekly by the WikiLeaks Working
And, with regards to the Persons at Risk we know that
there are some sort of informational memorandums put out along with a matrix to
track individuals, along with some formal guidance as to what embassies
apparently with Persons at Risk could and could not do or what their response
We know from Ms. Brown now, that apparently this
damage assessment we have that dates from 2011 is the latest, but apparently
there is an individual who is keeping track of the possible impact since the
I am not clear whether that is part of the Department
of State job duty title or personal avocation, but that would be an example of
a record that could potentially contain Brady.
So, for all these we would ask that the Government
would have the due diligence obligation to inspect these records at the
Department of State for [Rules for Court Martial, R.C.M.] 701(a)(6) purposes.
With regards to our arguments under closely aligned
agencies fall under 701(a)(2) then, we would rest on the reasoning of our
normal argument, but that purpose if the Court does agree that the Department
of State, due to its ongoing relationship with DoD [Department of Defense] and
this issue and being closely aligned.
Its records should in fairness be considered within
the prosecutor's possession, custody, and control. Then we would asked that the prosecutor
has the added obligation to review the records for material that is favorable
to the defense.
Judge Lind Okay.
Thank you. Major Fein
Prosecution (Fein) Briefly, your Honor. Admit this Court, may I brief from the
Judge Lind Yes.
Prosecution (Fein) Your Honor, first and foremost, same as our previous
response to the Motion to Compel Discovery.
of State files are not within the military authorities, therefore, are
not discoverable under [Rules for Court Martial, R.C.M.] 701(a)(2).
Your Honor, I am going to move up, [missed word] can
Your Honor the Department of State files are not
discoverable under [Rules for Court Martial, R.C.M.] 701(a)(2) and are not really in the possession, custody, or
control of military authorities.
We do, as the defense pointed out within our written
motion...we have determined that we are closely aligned for Williams purposes
with the Department of State.
And these specific categories of documents including
others that might exists, the prosecution will be searching for any Brady
material and those additionally the Government would argue that aggravation
evidence or aggravation confirmation that...that is not being intended to be
used in for aggravation should not be included and would not be relevant or
necessary, since the defense in a brief did say that there is an alternative
[Rules for Court Martial, R.C.M.] 701(a)(2) or asking for production of under 703...in particular the United
States argues that any information that would go towards...that would be
aggravating in nature...that again...just to repeat that the Government does
not intend to use or would not be discoverable, even relevant or necessary.
Judge Lind Let me stop you there. All of those...I haven't said, the
defense just discussed the minutes and agenda from the Mitigation Team and
situation reports by WikiLeaks Persons at Risk the raw data on impact...are there
any witnesses that the Government is going to call from the Department of
Prosecution (Fein) Yes, you Honor, but not necessarily on those
topics. What the Government
proposes your Honor to clarify this process is that at a minimum, if the Court
is inclined to rule that [Rules for Court Martial, R.C.M.] 701(a)(2) does apply, or doesn't apply and the Judge
ruled that the information should be relevant and necessary, and be produced
under [Rules for Court Martial, R.C.M.] 703, that under a minimum the documents be produced for the Court's
inspection under [Rules for Court Martial, R.C.M.] 703, after the prosecution has had a time to review them made
As was already stated on the record, the prosecutions
has to review the documents to know if there is Brady material or whether it is
aggravating or not. What is certain
based off of the testimony we have heard in Court today with three witnesses,
for instance form the Mitigation Team...the Mitigation Team was stood up, Ms.
Coffey testified to based off an OMB [Executive Office of Management and
Budget] directive to look at information security, information assurance, and
Your Honor, that is not relevant at all to this court
martial. They were looking at how
to better improve their own systems, which wouldn't go to impact and wouldn't
go to damage.
It wouldn't go to any issue on the merits on whether
Private First Class Manning did or did not commit these charged offenses or
whether he did or did not cause harm on sentencing.
So, that is the first one your Honor. So, that would be for the meeting,
agenda, and minutes of the Mitigation Team.
But I do know that you asked for whether we intend to
use that aggravation, that wouldn't be aggravating. That wouldn't be mitigating.
It is completely irrelevant information. The prosecution argues, it's also
[missed word] Brady. As far as Persons
at Risk, inherently in that title, we have heard from testimony from Ms. Bitter
was that, that was for individuals who were at risk, that were harmed.
So, unless the Government was using that information,
then we would argue it is not discoverable. It definitely would not be Brady
material and wouldn't be discoverable under any other rule.
But until we see the documents, we can't actually
make that final decision and bring it to the Court. It is the general nature of that
Judge Lind Well, my findings may turn on what if anything the
Prosecution (Fein) ...yes, your Honor...
Judge Lind ...from this.
And as a general rule, and to make sure that the Government understands
this, you turn over Brady information from a file.
And if it is not the complete file that it is not going
to be used in the trial or [missed word].
If the defense doesn't have it.
Prosecution (Fein) Yes, your Honor.
Judge Lind Okay. Are
you giving me a determination at this point, on whether or not the Government
is going to use any of it?
Prosecution (Fein) No, your Honor.
The Government is saying, that if the Court is inclined to rule under
[Rules for Court Martial, R.C.M.] 701(a)(2) and based of the written briefs and the oral argument just now, that
at a minimum the material will be produced...will be reviewed by the
prosecution, and then reviewed by the Court...produced to the Court under
[Rules for Court Martial, R.C.M.] 701(g)(2) of [Military Rules for Evidence, M.R.E.] 505(g)(2) similar to the 23 March order.
That way the if prosecution made that determination
as for getting the documents, and then the filings in the [Rules for Court Martial, R.C.M.] 701(g)(2)...assuming
that you don't receive approval after reviewing...just turn it over to
So, we [missed word] if you don't turn it over to the
defense, based of off approvals that we submit to the Court at that time, just
like this last iteration.
The Government is making that argument at that time
in our filings. Cause we have to
see the information to do that.
Judge Lind So, to make it...so, if I understand you argument to
me is...if i made a ruling saying it is discoverable under [Rules for Court Martial, R.C.M.] 701(a)(2) or it's
relevant and necessary to be produced under R.C.M. [Rules for Court Martial] 703(e) or (f) then the
Government is requesting in camera review...?
Prosecution (Fein) ...Yes, your Honor...
Judge Lind ...to determine whether it is actually relevant and necessary?
Prosecution (Fein) Yes, your Honor...the opportunity. The only reason I say opportunity, your
Honor, is that the prosecution would look at it and say, "Yes. It is relevant and necessary.
We agree with the defense. Here you go." But if it isn't material that would not
Judge Lind Well, I guess I am confused on timing now.
When does the Government...when would the Government
like me to make a rulings on these?
Prosecution (Fein) The Government...well, first your Honor, the Government already said it is not relevant and
necessary, nor does it fall under military authorities for [Rules for Court Martial, R.C.M.] 701(a)(2).
So, the Government already working with the
Department of State to review the material for Brady. So, that is going to be happening as
soon as possible...I mean, we have already told that it is ready for us to
start looking at...we are just trying to doing it here now.
So, once we are able to start looking at it and then
making the Brady determinations, we will have a better understanding of what
information is there. So, we at
least ask for these categories.
Once we look at
the information then we will be better to present the information to the
Court with a more concise argument, and be able to present to the Court it make
the determination for whether it is relevant and necessary for production to
Judge Lind Are you asking me to suspend by ruling on this issue
until the next Article 39(a) session?
Prosecution (Fein) Can I have a moment your Honor?
Prosecution (Fein) Sorry your Honor, one more moment.
Judge Lind Why don't we do this? Let's take a ten minute recess, do you
think that would be sufficient?
Judge Lind Court is in recess.
Unknown ALL RISE.
Unknown 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. Government what is your response?
Prosecution (Fein) Your Honor, the United States asks for 30 days for
the Court to delay your ruling...for 30 days which will give them time for the
Department [of State] to find those documents. So there should be, because of multiple
witnesses said that the documents should exist...might exits...to find in the
categories has now said on the record that they are requesting...find them, the
Government review them, and be able to present to the Court...and argument
whether they are relevant and necessary, whether there is Brady information contained
within them, and then [missed word].
Judge Lind Alright, that is 30 days. Is today the 7th [of June]?
Judge Lind [To defense.] Any objection?
Defense (Coombs) Your Honor.
Obviously we want to get the discovery so if the Government is indicating
that that is the time they need to do it then obviously, that is the time they
need to do it.
So, we don't have any objection to them looking to
obtain that information.
However, with regards to our request for these four
sub groups, we have been making these requests for quite some time.
Obviously today, just with the benefit of having the
Government, as the Court requested, to produce three witnesses, we now have
additional detail from within those subgroups.
But, the fact that we have been asking for those
groups has been something that has been ongoing for several months.
So, and the Government really should have been
looking at this stuff a long time ago.
But if they are indicating they need an additional 30 days, then obviously
we want the discovery.
Defense (Coombs) With regards to the...
Judge Lind Before we get there, Major Fein, I will be [missed
word] the additional 30 days. I
would like the Government to draft an order for me to approve that.
Prosecution (Fein) I will have that by tomorrow.
Defense (Coombs) With regards to the four groups, now that we have
some additional information, based upon today's testimony, capture the
additional information to give the Government even more specificity as exactly
what we are looking for.
But, it is important to note that this is just what
we know under [Rules for Court Martial, R.C.M.] 701(a)(6) [missed word] (3).
Obviously, the Government still has an obligation of
due diligence for Brady searching for closely aligned agencies under [missed word]
2, which you know, the defense can only know what it knows.
In this case, we found out additional information, so
we will supplement our request with additional information.
But, the Government still needs to be looking through
the Department of State for Brady information due to the fact that they are
closely aligned. With regards to
one of the other categories, It really wasn't discussed today because none of
the witnesses had detailed knowledge and that is the Congressional testimony by
the Department of State.
Those testimonies or at least subject to that
testimony to Congress was not made public, however, the defense would request
and more than likely there is in existence, a statement...a prepared statement
by whoever went in front of Congress to testify...that, that document be
produced of it contains Brady.
And, again depending upon the Court's ruling with
regards to [Rules for Court Martial, R.C.M.] 701(a)(2), if it is material to the preparation of the defense.
Defense (Coombs) Correct Ma'am.
What we will do is just call it an addendum to our Motion to Compel No.
2, just listing from the witnesses the added detail that we found. And then with regards to the
Congressional testimony, we do reference that in our Motion to Compel but I
will spell that up again.
Judge Lind Thank you.
Yes, Mr. Fein?
Prosecution (Fein) Your Honor.
We will include that in the draft order.
Judge Lind Alright, thank you. Is there anything else that we need to
Prosecution (Fein) No, your Honor.
Defense (Coombs) Nothing from the defense your Honor.
Judge Lind Alright, as I discussed with the parties, it is
preferable to the Court to start later tomorrow. There is a lot to be accomplished
between now and then, so we are going to begin the proceedings at 11 o'clock
tomorrow morning, as opposed to 09 hundred, is there any objection to that from
Defense (Coombs) No, your Honor.
Judge Lind For the record, counsel and I will also met in an
[Rules for Court Martial] R.C.M. 802 conference briefly to discuss just logistics issues as the Court is
The Court ruled earlier that as opposed to conducting
[Rules for Court Martial] R.C.M telephonic 802 conferences, the Court will schedule additional Article
39(a) sessions in between the current structure that we have, and the parties
and I have discussed that issue, and we set the next Article 39(a) session for
25 of June, that is a Monday, at 13:00, which is one o'clock in civilian
parlance. Anything else that either
side desires to add?
Judge Lind Anything else we need to address?
Correction: When this entry was originally transcribed and published Appellate Exhibit 131 was incorrectly identified as Appellate Exhibit 141. After the US Army released the document in June 2013 it was corrected to AE 131.
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