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

This is a transcript of the Motion Hearing held on June 6, 2012 at Fort Meade, Maryland in US v Pfc. Manning.

  • Judge: Army Col. Denise Lind

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

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

09:00 a.m. R.C.M. [Rules for Court-Martials] 802

10:00 a.m. Article 39(a) Session

ALL RISE

Judge Lind

Called to order. Appears the first order of business we have today is to discuss individual counsel request for Major Hurley.

Lind goes through the script of reading Pfc. Manning his rights to counsel in a Courts-Martial.

[Military counsel] is provided at no expense to you. You also have the right to be represented by military counsel of your own selection provided that the counsel that you have requested is readily available.

If you are represented by military counsel of your own selection, then your detailed military counsel will be excused. However, you can request that your detailed defense counsel continue to represent you, but that request would not have to be granted.

Do you understand that?

Manning

Yes, your Honor.

Judge Lind

So the documents that Mr. Coombs just described were a request by you for individual military counsel?

Manning

Yes, your Honor.

Judge Lind

In addition to military defense counsel you have the right to be represented by civilian counsel at no expense to the Government.

Civilian counsel may represent you with military defense counsel or you can excuse your military counsel and be represented only by your civilian counsel.

Do you understand your....?

Manning

Yes, Ma'am.

Judge Lind

OK so at this point you have a detailed military defense counsel. You have requested Major Hurley as an individual military counsel and that request has been approved, and you have Mr. Coombs as you civilian defense counsel.

Are these the three attorneys that you want to represent you [Mr. Coombs, Major Thomas F. Hurley, Captain Joshua Tooman]?

Manning

Yes, your Honor.

Judge Lind

OK. We can move that along?

Manning

Yes, your Honor.

Judge Lind

OK.

Judge Lind details Major Hurley.[MISSING]

And for the record that is Appellate 85, the Request for Individual Military Counsel and the subsequent [missed].

And moving along, the court notes that that an extraordinary writ has been filed in this case with the Court of Appeals.

Judge is referring to Center For Constitutional Rights Challenge to Secrecy in Manning Courts-Martial

That Court has not ordered this Court to stay these proceedings so unless...until that Court does we will proceed as scheduled with the scheduling.

Does the either side comments to add?

Prosecution (Fein)

No, your Honor.

Defense (Coombs)

No, your Honor.

Judge Lind

The last Article 39(a) Session [these hearings are called Article 39a Sessions] was the 26th of April of 2012. A number of motions and rulings have been filed since then and I would like to state those for the record. Beginning with the Government Motion to Reconsider the Court's ruling with respect to the Department of State Damage Assessment.

Is that marked as an Appellate Exhibit?

Prosecution (Fein)

Yes, your Honor.

Prosecution (Fein)

Appellate Exhibit...

Judge Lind

Appellate Exhibit 86, which is the Ruling in the Government Motion to Reconsider the Department of State Damage Assessment. The Government Motion itself is that also an Appellate Exhibit?

Prosecution (Fein)

Yes, your Honor. Appellate Exhibit 71.

Judge Lind

OK. The Court ordered in its 23 March 2012 ruling on the Defense Motion to Compel Discovery that the Government produce a draft Department of State Damage Assessment for in camera review to determine whether it contained discoverable evidence.

The Government had asked me on the 26th of April, which was the last day of the last Article 39(a) Session for a Motion to Reconsider that ruling.

Major Fein, can the Government to articulate its position here?

Prosecution (Fein)

One moment, your Honor.

Your Honor. The Government did not request an oral argument.

Judge Lind

OK Does the Government request to make that argument today?

Prosecution (Fein)

No, your Honor.

Judge Lind

For the record, the Motion to Reconsideration is Appellate Exhibit 71, and the prosecution brief discussing the damage assessments that go along with it is Appellate Exhibit 72.

The Court has issued a ruling in this respect. The Defense, did you want to address anything with respect to position...

Defense (Coombs)

No, you Honor.

Judge Lind

Alright, I [MISSING] the court as follows.

[BEGIN APPELLATE EXHIBIT 86, COURT RULING for GOVERNMENT MOTION FOR THE COURT TO RECONSIDER its 23 MARCH 2012 RULING ON THE US STATE DEPARTMENT DAMAGE ASSESSMENT]

On 11 May 2012, Appellate Exhibit 86 the Government moves the Court to reconsider its 23 March 2012 ruling requiring the Government by 18 May 2012 to:

1.) Disclose to the defense the any unclassified information from the Department of State Damage Assessment that is favorable the Accused in the guilt or punishment.

2.) Disclose to the Court any additional unclassified information from the Department of State Damage Assessment not disclosed to the defense for in camera review.

3.) Identify what classified information in the Department of State Damage Assessment is favorable to the defense in the guilt and punishment.

4.) Disclose to the Court all classified information that is part of the Department of Defense Damage Assessment for in camera review in accordance with R.C.M. 701(g)(2). Or at the request of the Government in camera review for limited disclosure under MRE 505(g)(2). The Government moves the Court to rule the State Department Damage Assessment is a "draft" and therefore any information contained in it is not discoverable because it is speculative in nature. The defense opposes. The Government has provided the Court and the defense counsel with a classified letter from the Department of State with background information explaining the draft nature of the DoS Damage Assessment. The Government has also provided the Court with a classified DOS Damage Assessment for in camera review on this motion. The Court has examined both the classified letter and the classified Department of State Damage Assessment and finds that Department of State's Damage Assessment is a draft Damage Assessment. The fact that it is a draft does not make the draft speculative or not discoverable under R.C.M. 701 [See Rules for Courts-Martial, PDF].

Ruling

The Government's Motion to Reconsider the Court's ruling of 23 March 2012 with respect to Department of State Damage Assessment is granted, adding reconsidered of 23 March 2012. The Government Motion to find the Department of State Damage Assessment is not discoverable is denied.

The Government will comply with the 23 March 2012 ruling for the Court.

[END APPELLATE EXHIBIT 86, COURT RULING for GOVERNMENT MOTION FOR THE COURT TO RECONSIDER its 23 MARCH 2012 RULING ON THE US STATE DEPARTMENT DAMAGE ASSESSMENT]

And, has that been available to the Court?

Prosecution (Fein)

Yes, your Honor.

Defense (Coombs)

[MISSING]

Judge Lind

Alright the Government requested that the Court in camera reviews of the DIA [Defense Intelligence Agency] Information Review Task Force File Report and the WikiLeaks Task Force Report and propose substitutions in accordance with Military Rule of Law 505(g)(2). And that prosecution [MISSING] to the Court in Appellate Exhibit 125.

The defense then moved for required non ex parte filing by the Government, which is Appellate Exhibit 106. And that was filed on 22 May 2012, and that was not a motion that was on the original trial schedule. As such, the Government requested a continuance in responding, and that was dated 23 May 2012.

The defense opposed the prosecution's request for a continuance. That is Appellate Exhibit 108. And, the Government rule on that request from the 24 May, that is Appellate Exhibit 124.

And the ruling was as follows:

[BEGIN APPELLATE EXHIBIT 124, COURT RULING on GOVERNMENT MOTION FOR LEAVE RESPONDING TO DEFENSE MOTION FOR REQUIRING NON EX PARTE FILING BY THE GOVERNMENT IN RESPONSE TO GOVERNMENT FILING MOTION FOR REVIEW OF DIA IRTF FINAL REPORT AND CIA WTF REPORT AND PROPOSED SUBSTITUTIONS IN ACCORDANCE WITH MILITARY RULE OF LAW 505(g)(2)]

Government request for a Continuance in Responding to the Defense Motion for Requiring non ex parte filing by the Government in response to Government filing Motion for reviews of the DIA [Defense Intelligence Agency] Information Review Task Force File Report and the WikiLeaks Task Force Report and propose substitutions in accordance with Military Rule of Law 505(g)(2)

1.) On 18 May 2012 the Government made disclosures to the Court that which provided noticed of intent to MRE 505(g)(2) to file ex parte motions for the Court to conduct an in camera review to authorize the substitution of the classified DIA Information Review Task Force IRT Final Report and a substitution for the WikiLeaks Task Force Report.

2.) On 22 May 2012 defense filed a motion requesting the Court order the Government to provide a non ex parte version of this motion pursuant to MRE 505(i). This motion is not on the Court's scheduling calendar for the 6 through 8 of June 2012 motions.

3.) On 22 May 2012 via email the Court ordered the Government to respond by 24 May 2012. Also via email the Government requested leave of the Court to respond by 29 May 2012. On 23 May 2012 the Court granted the Government to request via email and also extended the deadline for the defense to respond to the Government's disclosures until 1 June 2012. On 23 May 2012 the Court ordered the Government to put their email request in a motion. One 23 May 2012 the Government filed a motion for leave to respond by 29 May 2012. Also, on 23 May 2012 the defense filed a request for closing the Motion. The Court's in camera review of the DIA Information review Task Force IRT Report and the WikiLeaks Task Force Report will not be stayed.

Ruling

The Court modifies the email grant of the Government request for an extension of time and responds as follows.

1.) The Government response is due by COV [?] 28 May 2012.

2.) The Court will rule on the defense motion on 29 May 2012.

3.) Should the Court rule in favor of the defense, the Government will give the defense a non ex parte version of this motion 30 May 2012. The defense response to the Government's motion is due on 1 June 2012. Issues regarding the DIA Review Task Force IRT Final Report and the WikiLeaks Task Force Report will be addressed at the 29 May session [?], 16 June 2012. Ordered on the 24 May 2012.

On the 28th of May 2012, the prosecution filed a response to the defense motion to require ex parte filing. On 29 May 2012 the defense replied. On 29 May the Court ruled on the issue.

[END APPELLATE EXHIBIT 124, COURT RULING on GOVERNMENT MOTION FOR LEAVE RESPONDING TO DEFENSE MOTION FOR REQUIRING NON EX PARTE FILING BY THE GOVERNMENT IN RESPONSE TO GOVERNMENT FILING MOTION FOR REVIEW OF DIA IRTF FINAL REPORT AND CIA WTF REPORT AND PROPOSED SUBSTITUTIONS IN ACCORDANCE WITH MILITARY RULE OF LAW 505(g)(2)]

Does either side desire to supplement the briefs?

Defense (Coombs)

The defense does not.

Prosecution (Fein)

One moment, Ma'am. [missed Response but it was in the negative.]

Judge Lind

Alright, on the 29th of May the Court ruled on the that motion and the ruling was as follows.

[BEGIN APPELLATE EXHIBIT 128, COURT RULING ON THE DEFENSE MOTION REQUIRING NON EX PARTE FILING OF GOVERNMENT MOTION FOR 505(g)(2) REVIEW OF DIA IRTF FINAL REPORT AND CIA WTF REPORT FOR SUBSTITUTIONS; AND GOVERNMENT'S MOTION FOR UNDER 505(g)(2) REVIEW OF STATE DEPARTMENT, DIA IRTF, CIA WTF]

On 18 May 2012 the Government made disclosures to the Court and provided notice of intent to file ex parte motions for the Court to conduct an in camera review and offer a substitution of a classified DIA Information Review Task Force file report and substitution requests by WikiLeaks Task Force report. The Government filed the ex parte motions with the Court on 22 May 2012. The defense moved the Court to require the Government to file a non ex parte version of this affidavit by a Government MRE 505(g)(2) and MRE 505(1)(4)(a). One 28 May 2012 the Government filed an opposing response. One 29 May 2012 the defense filed a reply.

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

1.) MRE 505(g) disclosure of classified information to the accused provides procedures for the Government to [MISSING] voluntarily discloses classified information to the defense.

2.) MRE 505(g)(2) limited disclosure [MISSING] the military judge upon motion of the Government shall authorize:

a.) Deletion of specific items of classified information from documents to be available to an Accused.

b.) Substitutions of a portion or summary of the information from such documents.

c.) Substitution with statement admitting the relevant facts. Unless the military judge determines the disclosure of classified information itself, it is necessary to enable an Accused to prepare the trial. The Government's motion in any material submitted in support thereof shall upon request of the Government be considered by the military judge in camera and shall not be disclosed to the Accused.

3.) The defense cites the Navy Marine Court of Military Review's position in US v Lonetree 31 MJ 849 Navy Marine Court of Military Review (1990), affirmed 39MJ 396 Court of Military Appeals (1992) that the proposition that in camera review for substitutions under MRE 505(g)(2) are controlled by the procedures in MRE 505(i) Lonetree 31 MJ 857.

4.) MRE 505(g)(2) provides specified procedures when the Government voluntarily discloses classified information, but seeks a limited disclosure of that information to the defense. The Government is not required to make a claim of privilege prior to making a motion for limited disclosure in accordance with MRE 505(g)(2). Nothing in MRE 505(g)(2) states that an in camera proceeding under MRE 505(i) is required. For voluntary limited disclosure of classified information by the Government under provisions of MRE 505 identify when in camera proceedings under MRE 505 apply. See MRE 505(f), MRE 5050(i) applies when the Government has invoked a claim of privilege under MRE 505(c). MRE 505(g)(3)(b) invoking MRE 505(i) when privilege has been invoked under R.C.M. 9XX [?] [See Rules for Courts-Martial, PDF]. And, MRE 505(h)(4) prohibit any defense from disclosing classified information until the Government has been offered a reasonable opportunity to seek a determination under MRE 505(i)

5.) MRE 505(g)(2) is derived from Section 4 of the Classified Information Procedures Act (CIPA) CNCN MRE(g)(2) analysis A22-24 Federal Court interpret Section 4 of CIPA as authorizing the Government via ex parte filings to the Court for limited disclosure without invoking claim of privilege. US vs. Mejia 448 F3d 436, 457 DC Circuit (2006).

6.) MRE 505(i) does not apply to voluntary limited disclosure by the Government classified information. The procedures of MRE 505(g)(2) apply. To the extent that the Navy Marine Court of Military Review in Lonetree states otherwise, the Court disagrees.

7.) The 18 May 2012 prosecution disclosure to the Court provides the defense and public with notice of what in camera motions the Government intends to file. In order to ensure that that defense and the public have notice of the general nature of the proposed substitutions proposed by the Government and the national security interests that the Government seeks to protect with substitutions the Government shall file an unclassified redacted version of its ex parte motions. The Government is not required to submit the proposed substitutions to the defense.

8.) On 14 Feb 2012 the defense filed an ex parte supplement for the Court to consider in ruling on the defense motion to compel discovery. That would be [missed] On 15 March 2012, the Court ruled that it would not consider the ex parte supplement when deciding the defense motion to compel discovery, but the Court would consider the ex parte supplement at the request of the defense when conducting an in camera reviews in accordance with MRE 505.

9.) The defense will advise the court by 1 June 2012 what the defense desires the Court to consider the ex parte supplement when conducting the MRE 505(g)(2) in camera reviews requested by the Government.

Ruling

1.) The defense motion to require the Government to require non ex parte affidavits is granted in part. The Government will provide the Court and the defense with unclassified redacted version of its ex parte filing no later than May 30, 2012 that describes the general nature of the proposed substitutions in the national security interest the Government seeks to protect with the substitutions.

2.) The defense will advise the Court no later that 1 June 2012 if the defense request the Court to consider the ex parte supplement when conducting the MRE505(g)(2) in camera reviews.

Alright, the Court did receive a response from the defense on 1 June 2012.

And, that would be, I believe, it is a separate Appellate Exhibit 116 is that correct?

Defense (Coombs)

That is correct your Honor. It is Appellate Exhibit 116.

Judge Lind

[MISSING] the additional continuance requests that I granted. Alright, for the record the Government requested the continuance from the 30th May to the 31th May to provide the Court and the defense with an unclassified and redacted version of the ex parte motion DIA filing. The reasons for the request are set forth in the Government's motion.

The Government's motion is Appellate Exhibit 127. And, the ruling with the Court granting the continuance, the defense did not object, is Appellate Exhibit 126. I have defense response here as Appellate Exhibit 116. And the redacted filing by the prosecution with respect to the substitution at Appellate Exhibits 114 and 115.

Does either side desire to supplement the record for this issue?

Defense (Coombs)

Defense doesn't.

Prosecution (Fein)

Your Honor. Just one clarification for the record. There is actually three redacted versions that were submitted. There was the true original in the original filing and affidavit. The request for extension in timing with the supplemental. That would have been marked as Appellate Exhibit 115 that had an additional redacted version with less redactions.

Judge Lind

Alright, I have Appellate Exhibit 114, Appellate Exhibit 115.

Prosecution (Fein)

114 should have two. Two sets of motions with redactions.

Judge Lind

Alright. It does.

Prosecution (Fein)

Yes, Ma'am. And then 115, should have one in addition.

Judge Lind

Alright, why don't you explain to me the difference is between Appellate Exhibit 115 and 114.

Prosecution (Fein)

Yes, Ma'am. Appellate Exhibit 114 is the original disclosure the Government made to the Court and defense with the redaction that could be approved by the Court...the redactions that could be approved by the Court in suspense.

So the Government provided the most redacted version that was approved immediately. The Government requested the extension of time in order to have one more day to get the approval from the equity holder to turn over to the defense more information un-redacted, and received that approval in the next day. And in a supplemental filing, the exact same document from the day before with less information redacted.

Judge Lind

Alright. Thank you. Alright, the Court is prepared to rule on this issue unless either side has anything further to [missed]?

Prosecution (Fein)

Your Honor, the Government just has a short...would like a short moment to give the Government's position in the defense's motion.

The defense's response to the Government's Motion for Authorization and Substitution. First and foremost, the Government contends that MRE 505 and CIPA Section 4 does not contemplate the defense filing a response or contesting a Government motion under MRE 505(g)(2) versus invocation of privilege under 505(i).

The same cases cited by the Court in the Court's order to approve the ex parte un-redacted unclassified versions of the motions ...Mejia...the DC Circuit Court held that defense is absent from the ex parte review does not unfairly prejudice the Accused.

There are other in camera proceedings under CIPA Section 4 the Accused is entitled. And, especially is entitled to argue at taking in camera proceedings under 505(i)...under 585(i) with the Military [missed].

Ultimately we think it is inappropriate for the defense to be able to trial this and for the response to be considered by the Court. The only reason the Government hasn't contested this now, but prior to this moment, is because the defense was on notice based on the Court's original order 23 March for the Government to make this filing.

So they did have the ability to respond. But it is conceivable that the Government might have future filings and this case or in any other case under MRE 505 or CIPA where the information, even the fact that the Government is filing should not be disclosed to the defense unless there is information that the Court orders to be produced.

Judge Lind

Alright, defense do you have any [missed] to add?

Defense (Coombs)

Our first response will be does the Court [missed] once we have seen an evidence determination.

Judge Lind

And that would be Appellate Exhibit 116 is...

Defense (Coombs)

...is our response.

Judge Lind

Yes.

Defense (Coombs)

If you look...

Defense (Coombs)

Yes. [missed]

Judge Lind

I believe my review of Federal case law at which there is not a lot of military case law that I have seen, but Federal case law allows...well Government's Court Act, the defense does not have a right to look at the Government's submissions and look at the substitutions.

The defense does have the right to ex parte ask the Court to look at certain things with respect to what the defense theory of the case is and when conducting the in camera review look at it basically with the eye of the defense counsel which as you said the Court can.

And the Court looks at Appellate Exhibit 116 the defense has asked the Court consider a number of criteria when conducting its review and the Court...I've done that and the Court will continue to do that when conducting reviews under MRE 505(g)(3).

Anything further from either side?

Prosecution (Fein)

No, your Honor.

Defense (Coombs)

No.

Judge Lind

Ruling.

1.) The defense motion to compel discovery damage assessments Department of State DIA IRTF and CIA. One 23 March 2012 the Court ruled that the Government by 18 May 2012 to disclose damage assessments by the DIA Information Review Task Force (IRTF), the Department of State (DOS), and the Central Intelligence Agency (CIA) reports for in camera review in accordance with R.C.M. 792 and 793 [See Rules for Courts-Martial, PDF].

2.) On 18 April 2012 the defense moved the Court to find that the above damage assessments are in the possession, custody, and control of the military authorities and discoverable as material in preparation of defense IAW R.C.M. 701(a)(2). On 26 April 2012 the Government requested the Court to reconsider its ruling with respect to the Department for State damage assessment because the damage assessment was a draft and therefore not discoverable. On 11 May 2012 the Court denied the Government's motion. On 18 May the Government filed two classified ex parte motions for the Court to authorize redactions of the DIA IRTF final report and the WikiLeaks Task Force report. On 22 May 2012 the defense moved the Court to order the Government to provide a non ex parte version of its motion and proceed under MRE 505(i). On 29 May 2012 the Court granted the defense motion in part. One 1 June 2012 the defense filed its response to the Government motion for authorization and substitute and asked the Court to consider the following factors when conducting its MRE 505(g)(2) in camera reviews:

a.) The extent of the redactions and the substitutions.

b.) Has the Government narrowly tapered the substitutions to protect the Government interest that has been clearly and specifically articulated?

c.) Does the substitution provide the defense with the ability to follow up on leads the original document would have provided?

d.) Do the substitutions accurately capture the information within the original document?

e.) Is the classified evidence necessary to rebut the element of the 22 charged offenses bearing in mind the Government's very broad reading of many of these offenses?

f.) Does the summary strip away the defenses ability to actively portray the nature of the charged leaks?

g.) Do the substitutions prevent the defense from wholly examining witnesses ?

h.) Do the substitutions prevent the defense from exploring all viable avenues for impeachment?

i.) Does the Government intend to use any of the information from the damage assessments? If so, is this information limited to the summarized document provided by the Government? Is the information intended to be used by the Government is not limited to the summarized document, does the defense in fairness need to receive the classified portions of the document to put the Government evidence in proper context?

j.) Does the original classified evidence present a more compelling sentencing case than those substitutions by the Government ?

k.) Do the proposed substitutions prevent the defense from learning names of potential witnesses?

l.) Do the substitutions make sense such that the defense would be able to understand the context?

m.) Does the original classified evidence necessary to help the defense in formulating defense strategy and making important litigation decisions in the case?

n.) Is it unfair that the Government had access to the unclassified version of the damage assessment and the defense does not ? Does that provide a tactical advantage to the Government?

After considering the pleadings, evidence presented, and argument of counsel and after conducting the in camera review of the DIA IRTF Final report and the WikiLeaks Task Force report considering the factors requested by defense the Court find and concludes the following:

1.) The Department of State damage assessment. On or about 18 April 2012 The Government produced the Department of State damage assessment to the Court for in camera review, then requested reconsideration it 23 March 2012 order. On 11 May 2012 the Court denied the Government's request reconsideration, and on 18 May 2012 the Government advised the Court that the Government produce a draft report without redactions to the defense counsel and their security experts. As such the defense motion to compel the DOS damage assessment and find it discoverable under R.C.M. 701(a)(2) is moved.

2.) DIA Information Review Task Force IRTF. On 18 May 2012 the Government produced the IRTF final report to the Court for in camera review and substituted final report with proposed redactions IAW MRE 505(g)(2). The Court conducted an in camera review of the original IRTF final report and the proposed substitutions considering the factors requested by the defense and finds.

a.) When evaluating the substitutions under R.C.M. 701(a)(6) or R.C.M. 701(a)(2) the redacted substitute is sufficient from the defense to adequately prepare for the trial and represents an appropriate balance from the right of defense to discovery and the protection of specific national security information. The redactions are minor and limited in scope. The Government is releasing it in full, almost in its entirety. The redactions are not favorable to the Accused materials and preparation for the defense or necessary to enable the Accused to prepare for trial. Each of the redactions constitutes specific classified information and the redactions are necessary to protect specific national security [missed]. The Government has disclosed the redacted DIA IRTF report to the defense.

[To Prosecution] Will that be made available?

Prosecution (Fein)

Excuse me your Honor. The report was made available immediately your Honor, at the DIA.

Judge Lind

Alright. So if I keep in my order by close of business today that is good enough?

Prosecution (Fein)

Other than there is a geography issue, yes.

Defense (Coombs)

Just with regards to that, Ma'am. Because we do have our defense security experts here, unless there is some reason why we couldn't view the redacted DIA report that the Court currently has here with our defense security and the Government security expert.

That would make it a much more easier pass for the defense to review this document in a timely fashion. Otherwise, we would have to travel apparently to the DIA and coordinate with our security experts a time to do that, to review the document.

Judge Lind

Government, why don't you coordinate with DIA and see if that is a viable option for them.

Prosecution (Fein)

Yes, Ma'am.

Judge Lind

And advise them that the redacted version will remain in Court.

Prosecution (Fein)

I'm sorry.

Judge Lind

That the document will remain in Court.

Prosecution (Fein)

Yes, Ma'am.

Judge Lind

CIA. The Government completed a review of the CIA WikiLeaks Task Force report for evidence favorable to the Accused and material to [missed] punishment. The Government has found none. The Government has filed an ex parte motion for in camera review of the Government IAW MRE 505(g)(2) to determined whether proposed Government substitutions shall be disclosed to the defense, or whether disclosure of classified information itself is necessary to enable the Accused to prepare for trial. The Court has conducting an in camera review of the classified information considering the factors requested by the defense. The Government substitute...let me ask you a question Government...

...before I go here.

Did you find when you reviewed that document that there was Brady material in there?

Prosecution (Fein)

A moment... May we have a short recess, 5 minutes?

Judge Lind

Do you object?

Defense (Coombs)

No, your Honor.

Judge Lind

Alright Court is in recess till five minutes to 11:00 am.

COURT IN RECESS.

ALL RISE.

Judge Lind

This Article 39(a) Session is called to order. [missed] are present when the court last recessed. [missed] Major Fein, I am looking through my notes, I believe I was advised by the Government that there was no unclassified information that constituted Brady material is that correct?

Prosecution (Fein)

That is correct, you Honor.

Judge Lind

OK. And, the classified material contains some?

Prosecution (Fein)

Your Honor, your requests was is Brady material, there is no unclassified material. The CIA hasn't approved a portion of the WTF which includes any Brady material that was found and we have identified that for the summary.

Judge Lind

OK. Alright. To continue on with the ruling.

The Government found no unclassified information in its review of the WikiLeaks Task Force report favorable to the accused or material [missed] with punishment. The Government filed an ex parte motion for the in camera by the Court IAW 505(g)(2) to determine if the proposed Government substitution shall be disclosed to the defense, or whether disclosure of classified information itself was necessary to enable the Accused to prepare for trial. The Court has conducted an in camera review of the classified information considering the factors requested by the defense. The Government substitutions disclosed in Brady and R.C.M. 701(a)(6) material, but not material under 701(a)(2). The Court does not find at this time that the proposed substitutions is sufficient. The court will meet ex parte with Government counsel in an area appropriate for review of classified information. A Court reporter will transcribe the classified proceedings.

Ruling the classified motions by the Government to voluntarily provide limited disclosure under MRE 505(g)(2) of the DIA IRTF final report is granted. The Court finds the substitutions as currently drafted as not sufficient under MRE 505(g)(2) and holds the decision in advance any of the ex parte proceeding with the Government and review of what the Government intends to introduce and not introduce in their sentencing case.

Alight, we will go ahead and report that this ruling marked.

[missed] OK. That would be Appellate Exhibit 128.

[END APPELLATE EXHIBIT 128, COURT RULING ON THE DEFENSE MOTION REQUIRING NON EX PARTE FILING OF GOVERNMENT MOTION FOR 505(g)(2) REVIEW OF DIA IRTF FINAL REPORT AND CIA WTF REPORT FOR SUBSTITUTIONS; AND GOVERNMENT'S MOTION FOR UNDER 505(g)(2) REVIEW OF STATE DEPARTMENT, DIA IRTF, CIA WTF]

Alright, on 30 May 2012...well first of all [missed] on that issue that I have decided?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

[missed] 30 May 2012 Government will you please describe for the record disclosures that you have given the Court between the last Article 39(a) Session and this Article 39 a session?

Prosecution (Fein)

Yes, you Honor. Can we have a moment?

Judge Lind

Yes, please.

Prosecution (Fein)

Your Honor. Apologize, for clarification, since the last motions hearings or since 30 May?

Judge Lind

Since the last motions hearing? I believe there was one on the 2 May?

Prosecution (Fein)

Yes, your Honor. And...

Judge Lind

OK.

Prosecution (Fein)

[missed] Your Honor, on 2 May the United States disclosed to the Court and the defense the response that was required under the Court's order dated 23 March discovery order on whether the CIA had any forensic results or investigative files contained within the agency related to this case.

Additionally, on 30 May the prosecution made the disclosure to the defense pursuant to what we just discussed in the ex parte motions, the redacted, unclassified motions. Additionally, you Honor as just discussed, on 31 May prosecution disclosed a supplemental disclosure of the updated redactions.

And, then your Honor on...additionally on 31 May the Court provided notice for a disclosure to the Court identifying that the ONCIX [Office of the National Counterintelligence Executive] did have a draft damage assessment that qualified as a draft [missed] within the Court's order for the Department of State.

Judge Lind

Alright. This is probably a good time to the defense Motion to Compel Discovery [No.] 2. That was filed at our last session.

Defense (Coombs)

Yes, Ma'am that is Appellate Exhibit 96.

Judge Lind

Alright that's [missed] on 10 May 2012 Appellate Exhibit 96. 97 is the prosecution's response. 98 is the defense reply. And, the filing is the 10th of May the response is 24th of May. The reply is the 29th of May. The defense filed a supplement on the 30th May 2012. The prosecution then filed a supplement to the defense Motion to Compel Discovery on 31 May 2012, Appellate Exhibit 100. And the defense reply to the prosecution response supplement on Appellate Exhibit 101.

Part of the defense Motion to Compel Discovery [No.] 2 was asking for a witness from the Department of State in the position of that Department was that there were no other damage assessments other than the draft that was conducted. The Government asked for a telephonic R.C.M. [Rules for Court-Martials] 802 conference to discuss to clarify some issues. And, the Court held that with the parties on 31 May 2012. Government would you like to describe for the record what you are seeking clarification of?

Prosecution (Fein)

Yes, your Honor. In an email to the Court for the Government to produce a witness from the Department of State described in the damage assessment, the Government sought clarification because at the time we received that email, that email was sent, the Department of State had already made the damage assessment available to the prosecution to the defense.

So the Government needed clarification on that issue that was the scope of the testimony that that Department of State witness would be testifying about, and if that if that was the scope then the Government would work with the Department of State to obtain a proper witness to testify to that.

Judge Lind

Alright. And, during that telephonic R.C.M. [Rules for Court-Martials] 802 conference where counsel for both sides, Mr. Coombs, Major Fein and, I believe, the rest of the Government team as well as Major Hurley, who, if we are on the record, Mr. Hurley got on a little bit late [missed]. The defense requested clarification. The Court advise the Government that the Court intended to do an ex parte discussion that would be recorded by a Court reporter with reference to the WikiLeaks issue [ALEXA NOTE: THE TERM "WIKILEAKS ISSUE" LIKELY RE AN EX PARTE 505(g)(2) REVIEW DAMAGE ASSESSMENTS. I THINK IT RELATES TO CIA WTF REPORT SUBSTITUTIONS].

The Court asked the defense what they intended to ask the State Department witnesses. And the defense advised that they basically wanted if the Chiefs of Mission to review materials, they would like the substance in writing for the damage assessments, if not where is it?

Their requests were based off of Ambassador Kennedy's Nov 2010 [Judge Lind make an error and the record was corrected by Prosecutor Fein. See below. Kennedy's testimony was March 10, 2011] testimony. Was there a Working Group for WikiLeaks? Who proposed it? And those statements were given to Congress.

OK. The Government advised the Court that it cannot review the certain Department of State documents for Brady. They are still accumulating them. The defense had asked why the Government hadn't looked at them yet. The Government argued that "mitigation" is not relevant. And, the defense advised the Court that the Government filed supplemental filings. The Court ordered the Government to have Department of State Witnesses available.

And, the Government then advised the Court what evidence it will use for aggravation in sentencing, and where it comes from. Does either side desire to supplement what occurred at that telephonic R.C.M. [Rules for Court-Martials] 802 understanding that we will be able to the filings that had been filed?

Defense (Coombs)

No, your Honor. The defense will discuss the additional [missed] in our motion.

Prosecution (Fein)

Just two points of clarification on the testimony with Ambassador Kennedy was on March 10, 2011. A subsequent defense email to the Court in March of this year. And also, your Honor, the Government does not recognize making an assertion that "mitigation is not relevant."

Judge Lind

Alright. R.C.M. [Rules for Court-Martials] 802 conferences are conferences where the parties for the Court to bring basically to the Court attention. Based on the last R.C.M. [Rules for Court-Martials] 802 conference the defense has filed a motion to record R.C.M. [Rules for Court-Martials] 802 conferences. That has been marked as Defense Motion to Record and Defense Trial all R.C.M. [Rules for Court-Martials] 802 Conferences.

That has been marked as Appellate Exhibit 121. That motion is not part of the motions that were to be considered today in that R.C.M. [Rules for Court-Martials] 802 conferences are obviously provided by the Rule for Court-Martial are routine in criminal trials.

The Court believes that it is appropriate to address that motion at this hearing as they will continue to happen, and the defense has objected to participate in R.C.M. [Rules for Court-Martials] 802 conferences if they are not transcribed.

Would you like to add anything the Court record?

Defense (Coombs)

Your Honor, the defense's main position is that even though we recognize 802 conferences are in fact a very common occurrence within Court-Martial. Usually the 802 conferences are limited to just scheduling issues, advisement Court of what may come up in future motion hearing, or any sort for logistical problems that may come up on either side may be having.

Unfortunately, in this case the 802 conferences have become an opportunity to re-litigate a lot of the Court's rulings. And, so what happens is that we go into a great deal of substantive matters that the Court then considers from both sides. And, even though the Court correctly then does not make a ruling, we end up discussing the matter in such detail that we come back on the record, what happens is there is a very brief summary and the Court gives the parties to provide more detail, but then the Court makes its ruling.

The defense believes that the way the 802 conferences are being used both as a matter of re-litigating issues, but also even just right now...the Court recalls an 802 conference that the Government said that the "mitigation evidence would not be relevant."

That is also the defense's recollection of the Government's assertion. But normally what happens is the Government takes a position in an 802 conference or later through its motion or its oral argument takes a contrary position.

Because of the nature of the fact that things are not recorded, the defense is not in a position to say that the Government's belief is inaccurate based upon its statements.

So, for the purposes of a substantive discussion, we would request that the 802 conferences be recorded. Understanding that the way our system works is that there is a last minute logistical issue and we need get the parties on the line for logistical stuff, that normal, that understandable. The defense will participate in those. Even this morning, in the 802 conference that was perfectly acceptable.

But, to the extent that we start talking about substantive matters we would request that those matters are on the record, so there is no doubt as to what one party said. If we are re-litigating something, then there is no doubt, as to what has been advanced to the Court. And then when the Court makes its ruling, it's clear the matters in which the Court considered.

Judge Lind

Alright. Government?

Prosecution (Fein)

Your Honor, just briefly for purposes of the record, both the prosecution and the defense have petitioned the Court for 802(s) either over the telephone or even email on substantive matters.

There is no prohibition for substantive matters to be discussed. In fact, 802 clearly contemplates that if parties agree it should that, it must be put on the record.

It doesn't necessarily draw a line on substantive and procedural matters. The Government contents that there is nothing that the parties or the Court discussed in an 802 that can't be put on the record.

Of course everything could be put on the record, and that is an option. However, the purpose of R.C.M. [Rules for Courts-Martial] 802 according to the rule is to allow conferences for the parties in order to consider matters to promote fairness and efficiencies, an expeditious trial.

Having to record 802 is not going to help achieve the purpose of an 802, which is for an expeditious trial. So, the Government objects to the recording the 802(s) and if the issue litigating substantive matters that don't go in favor of one party, and the parties don't agree then is making a part on the record is what 802 [missed].

Judge Lind

As I discussed with counsel at this morning's 802, the Court is going to consider this issue at this session, because it does impact on the procedure for the remaining duration of this trial.

And, the Court is actually prepared to rule on it. The ruling is as follows:

[BEGIN APPELLATE EXHIBIT ?, COURT RULING ON DEFENSE MOTION TO RECORD AND TRIAL ALL R.C.M 802 CONFERENCES]

The defense moves the Court to order all R.C.M. [Rules for Courts-Martial] 802 conferences be recorded and transcribed for the record. The Government opposes. After considering the pleadings that have been presented, and argument of counsel, the Court finds and concludes the following.

1.) The trial schedule developed by the Court and the parties provides for Article 39(a) Sessions to be held approximately every 5 to 6 weeks. To date their have been Article 39(a) Sessions held on 23 February, 15 and 16 March, 24 through 26 April, and the current session 4 to 6 June 2012.

2.) R.C.M. [Rules for Courts-Martial] 802 provides that after referral the military judge may upon request of either party or sua sponte, which means by myself, order one or more conferences with the parties to consider such matters as will promote a fair and expeditious trial. Conferences need not be made part of the record, but matters agreed upon at the conference shall be included at the record orally or in writing. Failure of a party to object at trial or failure to comply with R.C.M. [Rules for Courts-Martial] 802 waives this requirement. No party may be prevented from any argument, objection, or motion at trial. The discussion to the rules states that the purpose of R.C.M. [Rules for Courts-Martial] 802 conferences is to inform the military judge of anticipate issues and to expeditiously resolve matters in which the parties can agree, and not to litigate or decide contested issues.

3.) The Court has been holding R.C.M. [Rules for Courts-Martial] 802 conferences with counsel during and following the Article 39(a) Sessions and by telephone on 8 February 2012, 28 March 2012, and 30 May 2012. Each of these conferences has been synopsized on the record and the Court has invited the parties to add details to the Court synopsis.

4.) Prior to the current motion dated 2 June 2012 the defense has not objected to conducting R.C.M. [Rules for Courts-Martial] 802 conferences.

5.) R.C.M. [Rules for Courts-Martial] 802 are not required that such conferences be recorded or transcribed. The Court will continue to continue to hold such conferences to address administrative, logistics, and scheduling issues. If either party objects to discussion of an issue in an R.C.M. [Rules for Courts-Martial] 802 conference, the conference will be terminated and the issue will be addressed at the next Article 39(a) Session.

6.) The Court notes that the parties have raised substantive issues in the middle of the Article 39(a) scheduling periods that if not addressed expeditiously will delay the trial. Therefore, the Court in conjunction with the Parties will build in an additional Article 39(a) Session into the Court calendar. I anticipate it will be about a one day session midway between each scheduled Article 39(a) Session to address any such issues that arise. When additional substantive issues arise that require expeditious resolution the Court will schedule additional ad hoc Article 39(a) Sessions as necessary.

Ruling

1.) The defense motion record and transcribe R.C.M. [Rules for Courts-Martial] 802 conferences is denied.

2.) R.C.M. [Rules for Courts-Martial] 802 conferences will not be held over the objection of a party.

3.) The Court will schedule an additional Article 39(a) Session in between the currently scheduled sessions to address on the record any additional issues that arise between our scheduled sessions.

[BEGIN APPELLATE EXHIBIT ?, COURT RULING ON DEFENSE MOTION TO RECORD AND TRIAL ALL R.C.M 802 CONFERENCES]

Anything else around this issue?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

At this time why don't we move onto the defense Motion to Compel Discovery [No.] 2?

The defense has filed an additional motion based on disclosure by the Government in, I believe, the telephonic 802 conference that we held on 30th of May. That was filed on Saturday June 2, and was not an envisioned motion that would be considered as part of the discussion.

The Government has not had an opportunity to respond to that motion.

The Court has advised the defense that the...I will let you go ahead and present the issues on the record today understanding that I am not going to make any rulings until I hear from the Government's response. And, this will be an issue that will be ripe when the first ad hoc Article 39(a) Session that we do in two or three weeks [June 25, 2012].

Defense (Coombs)

Yes, Ma'am. If for the purposes of the argument, if the Court also would pull from Appellate Exhibit 119 and 120. 119 is the prosecution's notice on ONCIX [Office of the National Counterintelligence Executive] and 120 is the defense response to the prosecution notice.

Judge Lind

Alright. I have and Appellate Exhibit 119 and Appellate Exhibit 120.

Defense (Coombs)

And, Ma'am for my argument what I would like to do is...within the Compel Motion Discovery [No.] 2 we requested four reliefs. I would like to address the first, to the extent the Government would like to respond...allow the Government to respond to that. And then move onto the other three.

So, as the Court knows within the defense Compel Discovery Motion No. 2 we requested four reliefs from the Court.

First, the Court should order a full accounting of the Government's efforts to comply with its Brady obligation.

Second, that the Court should order the Government to produce in a timely fashion, all the Brady materials.

Third, that the Court should order the Government to produce all the materials that would qualify under R.C.M. 701(a)(2) to include providing un-redacted copies of those documents that would fall under 701(a)(2).

And, finally, fourth, which the Court is in the processing of doing now, ordering the Government to produce all aggravation evidence that it intends to introduce.

So, what I am going to talk about first is the Compel Due Diligence Request. The argument to have the Government produce all of its materials in its possession. The defense believes that we continue to have very serious discovery problems in this case.

What the evidence shows here is that the Government needs to provide a full accounting of its Brady search and its Brady obligations.

The defense has consistently maintained through its oral submission, its written arguments, and its conduct has illustrated that its does not understand its due diligence requirements under Brady requirements.

The defense raised this issue in the past in part of our motion to dismiss, discussing initially how the Government did not even cite 701(a)(6) in its motion.

We also raised the issue that the Government maintain that 701 [See Manual for Courts-Martial PDF] and 701(a)(6) didn't apply to classified information. We initially pointed out that the Government cited Cone v Bell for its position that Brady would not be applicable in sentencing.

And, then it maintained that the damage assessments that we were talking about were not even relevant, and then later determined that, "Yes. The damage assessments do in fact have Brady material."

I would like for the Court for a moment to step back and think how we became aware of some of the information that is now the subject of the Motion to Compel Discovery [No.] 2.

Initially, the Government stated that all of the damage assessments that we had identified as possibly existing, or just "alleged" damage assessments...that was the terminology that they used. And in Court indicated that the "alleged" would not be sufficient, they would have to in fact determine whether or not the damage assessments existed.

The Government then moved on to indicate that the Department of State, ONCIX [Office of the National Counterintelligence Executive], had not completed a damage assessment.

At that point the defense said we were concerned how the Government was using the term, "completed". We felt that they were playing fast and loose with that term, and it indicated that perhaps there was in fact a damage assessment.

Then the Government indicated to the Court that it was unaware of investigative files or forensic results in closely aligned agencies. And, again, the defense raised the issue that the Government cannot state that it is simply unaware. It has to go look.

During the course the Court ruled that, "Yes, the Government would in fact be required to go look to determine whether or not these files did in fact exist."

And when you look at that background, you see that if the defense had not raised an issue with regards to "unaware"; raised an issue with regarded to "had not completed"; or "alleged"; and had just accepted the Government's representations, we would not be litigating any of these issues, and would not be aware of many of the damage assessments that we are currently aware of.

But most troubling is that within the last few weeks we have additional information that shows that the Government is not been diligent in its Brady search.

The clearest form or proof of that is the HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies.] memorandum, the Headquarters of the Department of the Army memorandum.

Judge Lind

Where do you have that?

Defense (Coombs)

That is an Attachment A to the defense motion to compel discovery 2. And, if you look at that Ma'am. That memorandum was dated initially 29 July 2011.

So, we know from that is that the Government's started its Brady search within the Headquarters of the Department of the Army until almost a year after my client was placed in jail based upon these offenses. It has still not yet started their Brady search.

The incredible things from this is nine months later someone within HQDA realized that nothing had been done on the 29 July request. No action had been done for Brady information. And it wasn't the trial counsel. It was somebody up in HQDA who said, "You know what? We haven't done anything on this. We need to start this." And that is the memorandum they received dated 17 April 2012.

So as of 17 April 2012, the trial counsel in this case hadn't done anything to secure Brady information within the Department of the Army. And we found out about this, this memorandum as a fluke. We weren't even suppose to find out about this.

But, what happened was that when they realized that nothing had been done, they immediately sent out for these memorandums to the principle officers within the Department of the Army, counseling them to look for this information.

And, then unfortunately, or fortunately for the defense, one of those principle agencies is Trial and Defense Services. So these memoranda landed on the desk of my former co-counsel, Major Matthew Kemkes, and then he sent it to me.

And, I looked at it this, and that is when I realized that the trial counsel has not even done Brady search within the Department of the Army.

And, if they haven't done a Brady search within the Department of the Army, how we can have faith that they have done a due diligence Brady search at any other agency.

Clearly, we cannot.

In addition to this, during our last 802 session, the Government made a startling admission. They stated that they had not gone to the Department of State to review the Chiefs of Mission review; the WikiLeaks Working Group Review; the Mitigation Team Review; or the Department of State's report to Congress on the alleged leaks.

And, their apparent justification for not doing that was, they said, we had not given them any notice until, defense Motion to Compel [Discovery No.] 2. That was the first time that they received evidence. And they also stated that, this information would not be discoverable.

Defense was dumbfounded at that response. Because, we know we have filed six previous referral Discovery Requests for information from the Department of State.

In addition to that, we moved to compel this information at the [Article] 32 [Pretrial] in front of the Investigating Officer [Lt. Col. Paul Almanza, who is a life long DOJ Prosecutor] this information from the Department of State was the subject of Discovery Motion No. 1 in front of this Court.

In addition to that, we have been seeking to depose Ambassador Patrick Kennedy for the last eight months. Trying to just sit down with Ambassador Kennedy to talk to him.

Roadblock after roadblock in front of the defense in order to do that. And as the Court knows, we filed a Motion to Depose Mr. Patrick Kennedy.

At that point, the Government indicated that it would do everything they could in order to provide him to the defense. But, we just need to submit a Touhy request.

And, that is what we did.

As the Court knows, on 23 March 2012, we did submit a Touhy request. And, that Touhy request listed specifically these groups that we are talking about. Saying that is what we wanted to talk about with Ambassador Kennedy.

In addition to that, as the Court knows, we supplied both the Court and to the Government, Mr. Kennedy's declaration in front of Congress, talking about these subgroups.

So, it is entirely disingenuous for the Government to say that they had no notice of this information until our motion to Compel Discovery No. 2 filed on 10 May. They clearly knew at the very latest that they could possibly say that they became aware of this when Ambassador Kennedy testified to this information in March 2011.

The Department of State is a closely aligned agency. The Government has a due diligence obligation to go search their documents, and do so in good faith. They cannot simply bury their head in the sand and say this stuff does not exist or you haven't given us sufficient notification for what we go look for. They were on to this. And they haven't [missed] that obligation.

Now, if the Headquarters part of the Army issue was not enough, and the Department of State issue was not enough, we now know, from a recent filing of the Government on 31 May that they are currently aware that the FBI does in fact have an impact statement. And, they state that they just discovered that the FBI had this impact statement.

The defense has been asking since the very beginning of this case in 2010 for information from the Joint Investigation done by the FBI. The fact that they could say at this point, at this juncture, that they are just now finding out that the FBI has done an impact statement... Why has the Government not found out about this before? Where was this impact statement? This is an agency that has participated in an ongoing Joint Investigation with the Department of the Army. You would think that they would know what the FBI has.

And, here they are now just saying, that the FBI has this impact statement. And, take a look at how the Government choses to give the defense and the Court notice of this impact statement. They do so in one sentence, referenced on page four of its seven page response, to our Supplement to [Compel] Discovery No. 2 Motion.

One little sentence, a throw away sentence, they indicate, "Oh...by the way, the FBI does have an impact statement."

That looks like they were just hoping to bury that information, that no one would notice that somehow.

That latest revelation show that the Government just really keeps the Court and the defense in the dark about this information until if it chooses on its own accord to get information to the defense and to the Court.

Not only that, within that, they indicate that they are going to make this impact statement from the FBI available to the defense based upon the Court calendar, which when you look at the Court's calendar for the 505 proceedings, it is clear that the Government does not envision the defense getting this information anytime soon...this impact statement. So, that is obviously problematic.

But, as if this eleventh hour revelation about the FBI impact statement was not enough, we now know that ONCIX [Office of the National Counterintelligence Executive] has a damage assessment.

In its response to Discovery Motion No. 1, the Government represented that ONCIX [Office of the National Counterintelligence Executive] had not completed a damage assessment.

It recalled, they use that same terminology, "not completed a damage assessment" with regards to the Department of State. And, this Court said that that was not enough, "You had to provide greater clarification." And, so this Court asked the Government specific questions regarding the Department of State and regarding ONCIX [Office of the National Counterintelligence Executive], and subsequently you gave that request for specific information to the Government.

The Government replied with regards to the Department of State. The Department of State had "not completed a damage assessment." With regards to ONCIX [Office of the National Counterintelligence Executive] the Government replied that "ONCIX [Office of the National Counterintelligence Executive] has not produced any file or interim draft assessment in tis matter." That was what the Government represented to the Court and to the defense.

And, they made that representation to the Court on 21 March 2012.

Then, as you know, the Court ordered a production of the Department of State damage assessment for an in camera review, however, the Court did not on 23 March address the ONCIX [Office of the National Counterintelligence Executive] damage assessment.

And, this wasn't an omission on the Court's part, this wasn't an oversight on the Court's part. The Court didn't address the ONCIX [Office of the National Counterintelligence Executive] damage assessment because it hadn't been told about the ONCIX [Office of the National Counterintelligence Executive] damage assessment.

You had been told that they had produced "no interim or final report." That was what you were told on 21 March. So, then at 23 March when you issued your ruling that the Department of State damage assessment, the draft damage assessment is discoverable. At that point, the Government has an obligation to come forward to the Court and say, "You know what? ONCIX [Office of the National Counterintelligence Executive] also has one."

But, they didn't do that. They sat on that information. And then what happens is, instead of us being able to challenge them, because we couldn't challenge them on the ONCIX [Office of the National Counterintelligence Executive]. All we had actually is a belief that ONCIX [Office of the National Counterintelligence Executive] has something.

But, as the Court knows in basically latter part of March, early part of April, we start receiving Brady from these other 63 agencies, what the defense calls, "Our 12 pages of Brady." And, we received these 12 pages, and these 12 pages clearly indicated that ONCIX [Office of the National Counterintelligence Executive] had a damage assessment.

Because within the 12 pages, you see the agency responding to ONCIX [Office of the National Counterintelligence Executive] and not only ONCIX [Office of the National Counterintelligence Executive], but ODNI [Office of the Director of National Intelligence].

We still haven't heard yet of ODNI [Office of the Director of National Intelligence] has a damage assessment.

But, they were responding to both ONCIX [Office of the National Counterintelligence Executive] and ODNI [Office of the Director of National Intelligence].

And, ONCIX [Office of the National Counterintelligence Executive] is tasking these agencies to take a look at specific information, to access whether or not this information has cause damage to their agency.

If it has, to detail the steps that they have taken in mitigation to address that damage, and then to indicate the cost of the steps that they have taken, in response to that damage.

And, when we received the 12 pages of discovery, as the Court knows, we raised that issue with the Court and Government, saying how can the Government maintain that ONCIX [Office of the National Counterintelligence Executive] does not have a damage assessment when we are looking clearly at these documents that say ONCIX [Office of the National Counterintelligence Executive] is tasking these agencies with suspense dates. To look for this information, get this back to us with this information.

Clearly, ONCIX [Office of the National Counterintelligence Executive] has something. And, at that point the Government chose to define its way out of this inconsistency.

The Government then said, "Wait a second." There is a difference between "damage assessment", and there is a difference between "damage assessment" and "investigation". And, what the defense had been asking for is ONCIX [Office of the National Counterintelligence Executive] may have is more akin to "working papers".

And, so the Government so far as to provide as to provide the Court with a three page memorandum detailing the difference between what is a "damage assessment", based upon their arbitrary definition; what is a "investigation", based upon their arbitrary definition; and the fact that the defense really needed to ask for "working papers".

So based upon that defense said, "We are going to file a Motion to Compel Discovery [No.] 2" referencing ONCIX [Office of the National Counterintelligence Executive].

And, we are going to ask for everything: "damage assessment", "investigation", and we will even throw in the terminology "working papers" so the Government knows exactly what we are asking for.

What is responsive to these 12 pages of Brady discovery that we have been given...and, when we did that, at that point, what does the Government say? The Government says, "Oh, now we don't understand what you were asking for. It is too broad."

But when we asked for this information, the Government knew, and knows that ONCIX [Office of the National Counterintelligence Executive] has something. They had an obligation at that point to come forward and say, "You know what, Ma'am. ONCIX [Office of the National Counterintelligence Executive] does in fact have a 'working paper draft' assessment that is ongoing that the Court may want to be aware of.

But they didn't do anything. They sat on that information.

It wasn't until, 31 May that the Government notified the Court and the defense that ONCIX [Office of the National Counterintelligence Executive] actually had a damage assessment.

And, how does the Government do that?

Take a look at that notification. They justify sitting on this information because they had asked the Court to reconsider its ruling on the Department of State damage assessment. And, they said to the Court that draft damage assessments were not discoverable for purposes of Brady. That was their position.

They filed their position on one case. A 1963 Supreme Court case citing the second concurring opinion, a throw away sentence within that second concurring opinion. And, the Government then when they filed that...the Court didn't even request that the defense needed to file a reply with them.

That was the "How much their opinion or at least their request had, as far as controlling law, had backed it up.

The Court said, "No need to file a response," and 11 May 2012 reiterated its 23 March ruling that draft damage assessments by the Department of State were discoverable.

And, at the time the Court did that on 11 May, again, knowing what the Court asked for on 21 March for information; knowing what the Court ruled on 23 March and then out on 11 May. The Government had an obligation to come forward to the Court and say, "Your Honor. ONCIX [Office of the National Counterintelligence Executive] has something." But they sat on the information again for three weeks.

And what are they doing during that time period? You see from their 31 May notification, that they go to ONCIX [Office of the National Counterintelligence Executive] and they start coordinating with ONCIX [Office of the National Counterintelligence Executive] about their draft damage assessment.

And, they unilaterally decide, that we are going to be turning your draft damage assessment over on 3 August. And, they present this whole thing to the Court that it is a done deal. No need to coordinate with the Court or the defense. We have already decided that this damage assessment is going to be turned over on 3 August.

So, at this point, a little over a month before trial. That is when they envision handing this information over.

Take a look at the 24 May 2012 memorandum, written by Major Fein, the general counsel. It states that, "On 23 March 2012 the Court ruled that the Department of State's draft damage assessment was discoverable, and did not rule on ONCIX [Office of the National Counterintelligence Executive] draft." That is HIS wording, in his motion to ONCIX [Office of the National Counterintelligence Executive] general counsel.

The reason the Court did not rule on ONCIX [Office of the National Counterintelligence Executive] draft was because YOU didn't know about ONCIX [Office of the National Counterintelligence Executive] draft, how are you going to issue a ruling if you don't know about the fact that ONCIX [Office of the National Counterintelligence Executive] has a draft damage assessment.

Then Major Fein makes it look like an error on the Court's part, stating that "The prosecution must notify the Court of this apparent inconsistency in the Court's order."

There is no inconsistency in the Court's order. Again, the Court was not aware that ONCIX [Office of the National Counterintelligence Executive] had anything.

And, you were not aware of that because on 21 March 2012 the Government represented to the Court and to the defense that ONCIX [Office of the National Counterintelligence Executive] "did not have any interim or final draft damage assessment." That is what they represented to this Court.

Now the defense predicts that much like what they did when we raised the 12 pages of Brady, that the Government again is going to try define its way out of this. That somehow the ONCIX [Office of the National Counterintelligence Executive] damage assessment that we now know of was somehow a "pre-interim", it wasn't really an "interim"...or maybe it wasn't a "pre-working paper which of course has to be different than a damage assessment, which of course is different from an investigation, which may or may not qualify as a draft."

That is going to be the Government's position.

But, what is clear is that everyone knew what the Court was asking. Does ONCIX [Office of the National Counterintelligence Executive] have something? And they had an obligation that at that time to tell the Court, "Yes."

And if they would have done that, the Court would have said, "Turn it over." And, you would have looked at it at the same time you looked at the Department of States draft damage assessment, and you would have made your ruling.

And, at this point if that would have been the case, we would have had ONCIX [Office of the National Counterintelligence Executive] draft damage assessment, if the Court determined much like with the Department of State that it was discoverable.

But now we are going to have to wait, if the Government has its way until at least 3 August to even start address this issue.

Judge Lind

Well Mr. Coombs, the agency itself says their coordinated version wouldn't be available until July 13. Is that correct?

Defense (Coombs)

That is correct. And you take a look at that. July 13th is when they are going to put this basically in a final format. They had something.

Judge Lind

I [missed] your point.

Defense (Coombs)

Yes.

Judge Lind

I am finding here in the law review tort thing. These things aren't together or things that are together.

Defense (Coombs)

When you take a look at that Ma'am, also take a look at the 12 pages of Brady. When did ONCIX [Office of the National Counterintelligence Executive] start asking for this information? You will see that they started asking for this information at the end of 2010, beginning of 2011. And they were putting suspense dates for early 2011 for all this information.

So, it appears that the July 13 deadline maybe, the final report...but they certainly have a draft that the Court should have had the benefit of.

So, now looking at these latest revelations now you have to take a look at what the Government is doing with regards to the 63 or so agencies that they have indicated that they are reaching out to. If you look at that the Government admits that they initially started reaching out to these agencies in the April May 2011 time period. Again, over a year after my client has now been in pretrial confinement.

What are they doing during that time period? Clearly they are perfecting their case.

They are not doing a Brady search. And, then you would take a look at between April 2011 and February 2012. This is where it would be important if we have this as a recorded 802 session. But in February 2012 the Government represented both to the Court and to the defense. They looked at us in the eyes and they said to us, "We looked high and low for Brady from April 2011 to February 2012. We have looked for Brady, we have found nothing. We have found no Brady." [See Judge Lind's March 15, 2011 Article 39(a) Session recitation of the February R.C.M. 802 conference and Major Fein's comments following on the record for corroboration of Mr. Coombs statement.]

If the court recalls, based upon that representation by the Government, the defense started saying, "Well if you really looked and you haven't found anything, well we may do a waiver of your due diligence Brady search if represent for an accounting of what you have done in order to get this case going forward."

If you say you, because at that point they were saying that they were looking at "The Department of Agriculture for stuff." We were saying, "Well, we don't think the Department of Agriculture is going to have much. So if that is what we are really holding off this whole process for, let's see what you have done, and then we will go forward from there."

But, again the key aspect here is that in February 2012, in the 802 session they said to you, they found no Brady.

Then, strangely, shortly after our compel motion discovery no. 1 argument in the Court's 23 March ruling with regards to the fact that 701 does in fact apply to classified information. We start seeing that Government is going back to these same agencies, saying in requests to these same agencies to then produce information to them.

Look at the 12 pages of Brady and look at the other Attachment to our compel motion 2, and look at the dates in which the Government is reaching out to these agencies to work with them to produce the information that they gave to ONCIX [Office of the National Counterintelligence Executive] and to ODNI [Office of the Director of National Intelligence]. It is within the last two months.

How is it that the Government is within the last two months now reaching out to these same 63 agencies that they represented to the Court and the defense in February 2012 that they hadn't found anything. That they have been looking for two years. Why are they going back and doing a relook at this point?

And, the defense would submit that they are doing a relook because they didn't understand Brady the first time around. And, they are basically doing their research for Brady under the proper standard now. And that is why even though in February 2012 that they saying that there was no Brady to be found anywhere. Now, we are getting Brady.

We are getting Brady information in dribs and drabs, slowly but surely, but we are getting it.

And that brings on the other follow up in how the Government is doing its due diligence search in this regard. Instead of going to ONCIX [Office of the National Counterintelligence Executive] and ODNI [Office of the Director of National Intelligence] directly...to the source to get all this information. They are independently recreating the wheel trying to go back to the 63 agencies. And, all they are really doing with those 63 agencies is saying, "Send us what you sent to ONCIX [Office of the National Counterintelligence Executive] and ODNI [Office of the Director of National Intelligence]."

Wouldn't it make much more sense to go directly to ONCIX [Office of the National Counterintelligence Executive] and ODNI [Office of the Director of National Intelligence] and just get the information?

Now whether or not they can turn that information over and they still have to coordinate with the various agencies, that is a separate equation. I mean they certainly can adapt at that point which agencies have certainly responded to ODNI [Office of the Director of National Intelligence] and ONCIX [Office of the National Counterintelligence Executive] and then it makes it much easier to go to the agency saying, "Hey. We have this. You gave it to ONCIX [Office of the National Counterintelligence Executive]. [missed] Do you have anything else?"

But instead, they are doing it piecemeal. At this point, we have received less than half of the I guess...if 63 is the number...less than half of 63 agencies we have received. And, again...

Judge Lind

So, you are getting Brady from about 30 agencies at this point? Is that correct?

Defense (Coombs)

28.

And, most of this is one page or two page responses to ONCIX [Office of the National Counterintelligence Executive] or ODNI [Office of the Director of National Intelligence], and it basically says, "No damage. No impact." Or, "Possible impact, but on another agency."

That is the general gist of what we are receiving.

So, if the Government was doing this in a diligent fashion, the defense would submit that they go directly to the source again, either ONCIX [Office of the National Counterintelligence Executive] or ODNI [Office of the Director of National Intelligence]. So, now we see that the Government is basically re-doing its Brady search, there is another problem that we have, and that is that the Government continues to seem to not understand what Brady is, and what their obligations are under Brady.

And, for that I would like to look at three specific requests, and it is detailed in our motion to compel discovery no. 2...Requests that we submitted it to the Interagency Committee Review; the President's Intelligence Advisory Board [PIAB]; and the House of Representative's Oversight Committee.

The Government apparently believes that our requests to each of these three agencies for information is not specific enough to trigger their rulings requirement under Brady. And, if the Court will indulge me for a moment...I will read exactly for what we asked for and when we asked for it: For the Interagency Committee Review, the defense requested, "The results of any investigation or review concerning the alleged leaks in this case by Mr. Russell Travers, the National Security Staff Senior Advisor for information access and security policy. Mr. Travers was tasked with a comprehensive effort to review the alleged leaks in this case. We started asking for that in December of 2010."

The with regards to the House of Representatives Oversight Committee...

Judge Lind

Let me just ask you a question? How do you know if the interagency committee...if he is tasked?

Defense (Coombs)

Yes. that is a great question, because this is the only way we actually find out about Brady information. Is that someone from the Government indicates in a public press account or what not that this is ongoing. In this case the Interagency Committee Review, the White House indicated that they had tapped Mr. Travers to head up this Review and to look into the impact of the alleged leaks. So it's a public statement by the White House. And, based upon that, that is why we submitted out 8 December 2010 request saying hey, "We are aware of the fact that this is ongoing. So, we asked the Government, now with a specific request under No. 3 with regards to 701(a)(6) to go take a look at that information. And, again, the Government has maintained that a request like this read to you, is not specific enough to trigger the rulings requirement under Brady.

With regards to the House of Representatives Oversight Committee, we asked for the results of "Any inquiry and testimony taken by the House of Representatives Oversight Committee, lead by Representative Darrell Issa. The Committee considered the alleged leaks in this case, the actions of Attorney General Eric Holder, and the investigation of Pfc. Manning." We asked for this in 10 January 2011. And again with this, this is based upon public statements and public accounts of the fact that Representative Darrell Isa was in fact convening these reviews in order to determine what was going on at that point, both with the Department of Justice and in the investigation of my client. So, probably the Department of Defense.

Judge Lind

Mr. Coombs I have a question for you. I am looking at Williams, and where is the three other files designated in the defense discovery request which involved the specified type of information within the specified entity and the line we are on case by case? Where is that line? Do you ask for everything for everybody under the sun that ever touched this case? Where is the line?

Defense (Coombs)

That is a great question, because you are right. You have got to give enough specificity in order for the Government to know what you are asking for. That is why I read these two requests. These are basically, in the defense's mind, very specific. They name an individual. They name a time period. They name what is happening. It has to be something that we require from then Government, from its good faith due diligence requirement, to at least go look. And, when you take a look at the third request, which the Government does say is sufficient, and that is the President's Intelligence Advisory Board [PIAB]. We asked for "Any report, or recommendation concerning the alleged leaks in this case by Chairman Chuck Hagel or any other member of the President's Intelligence Advisory Board [PIAB]."

And, then the defense in any stretch of your imagination, cannot understand how that request is specific enough in order to trigger the Williams requirement, but our other two requests are not. I mean really short of telling the Government, "What it is in a red file within Darrell Issa's third drawer, beneath his Bible, you'll find what you want." That the Government at that point is on notice for what we are asking for, and they have a good faith obligation to go look. The defense recognizes that the Williams requirement is not so vague that we can just simply say, "Give me any file of any agency at any point had addressed this case." That would be too vague. But these are specific requests.

And, the Government comes back saying, we provided no authority to suggest that these specific requests that we have asked for fall under Williams or 701(a)(6). The problem with that is that we are asking here for these records, and the Government comes back to us saying, that again "The defense has not provided sufficient requests for Brady," and they go back to whether or not these records "alleged" records.

With regards to using "alleged" records the defense believes the Government again is just playing hide the ball. These are not alleged records. These are records that we have given them sufficient specificity to trigger their good faith obligations of the ruling. And, more importantly, there is no ever requirement above beyond giving the specificity within Section 3 in detail to the Government why this information may in fact be Brady. To the extent that someone might read that in, the very nature of what was going on in these various agency is clear that Brady material may exist there, and that is the whole purpose of triggering the good faith requirement that the Government go look.

And, yet the Government is just simply saying, "No." They are content in not looking. We say apparently not looking at every agency besides the President's Intelligence Advisory Board [PIAB]. That apparently was specific enough for them.

If the Government in this case is in fact conducting due diligent Brady search, they should have nothing to hide to this Court or to the defense. They should be able to clearly lay out what they have done since the start of this case, in order to comply with evidence requirements under 701(a)(6). What the defense is asking is that this Court require the Government t do so. We would ask is that the Court suspend the hearing for two three weeks at the maximum in order for the Government to put this information together, unless they can do it quicker than that.

Judge Lind

Let me ask you a question on that. Understand that again, I am not making any rulings until I hear the Government's position, because they haven't had the chance to respond yet. But why would the proceedings have to be suspended, assuming I went completely in your favor. Why can't proceedings drive on as scheduled, and this be done ancillary?

Defense (Coombs)

The problem is that when we take a look on what is on the case calendar, on 22 June we have to give you the Court and the Government notice of our intended witnesses at trial.

Judge Lind

No, I understand that things might have to be loaded, but instructions...?

Defense (Coombs)

With regards to that: If there are ever issues that do not impact the preparations for trial such as orderly instructions for the charged offenses that are made...we have a...

Judge Lind

...Article 13

Defense (Coombs)

Exactly...and Article 13 motion. Things that do not impact case preparation then we certainly address those. The defense, however, believes that with regards to the witness lists notification, the 505(h)(1) notification, notification on what evidence that we intended to introduce, the reciprocal discovery requirements...all that information cannot be done on until the Government complies with its initial discovery obligations in this case. And, so what we are asking that the Court give the Government at a maximum, to respond to the questions that we raised in our motion. And those are: What specific agencies has the Government contacted to conduct its Brady review? When did the Government make its inquiry? How many documents did the Government review?

Judge Lind

How is that relevant?

Defense (Coombs)

It is relevant, Ma'am because if the Government is saying for example, lets go with ONCIX [Office of the National Counterintelligence Executive]. It's Brady review...if they tell the Court that they have only reviewed 15 pages of documents, we know then that they have not done a due diligence search within ONCIX [Office of the National Counterintelligence Executive]. We have a problem there, because ONCIX [Office of the National Counterintelligence Executive] has tasked all these agencies to respond back to them. So, just having the Government indicate how many pages did they review from whatever agency and then, what were the results of their review? That should not be an onerous task on the part of the Government. Brady in this case is a constitutional mandate. It is a right of the Accused in order to have this information. And the timeliness of this is as soon as practice. That is when this information needs to be provided to the defense so we can in fact incorporate it into our case. Because it could address issues of guilt and obviously issue of punishment. But the defense can't do that if we are receiving it piecemeal or if the Government is not at all complying with its Brady obligations.

Once we have a complete account of what the Government has done, then that goes to the second request of the defense to order a timely production of this Brady information. And, not in this piecemeal fashion that we are receiving now. But, get the information together and turn it over. So that we can adapt at that point start to incorporate it, where we have all the information at once. And, the defenses position would be: Once we have all of the Brady discovery, and we will argue for the motion to compel discovery 2, the 701(a)(2) discovery. Then the defense would need at least two months, to incorporate that information into its case in [MISSING]; and into its sentencing case.

And, when you look at the timing that the defense is asking for, you have to remember that the Government has had access to this information and these other agencies for over two years. When the Court takes a look at what the Government has in its aggravation case, then be clear what the Government has done as far as coordinating with other agencies: which agencies they have reached out to and used the information from. Government has been using this time to perfect its case all the while keeping the defense in the dark with regards any discovery for us to perfect our case. So, two months of additional time after they fully comply with the schedule, we have no more discovery issues, is at a bare minimum, the time period the defense would need in order to incorporate this information.

Now, this is what I like the Government to respond to the due diligence request, and then I move on to my other three requests.

Judge Lind

Well before we do that, the Government hasn't had a chance to responds to that, at least in [MISSING] filed on Saturday, the 4th of June, which was last Saturday.

Defense (Coombs)

Yes, Ma'am.

Judge Lind

One thing I am going to ask you to do, as I said when we will address this at the interim Article 39(a) session [June 25, 2012] that was scheduled. If you would, incorporate the [MISSING] you don't know, but incorporating your best guess as to the time flow if I go in your favor...what you are anticipating the Court calendar to look like.

Defense (Coombs)

Yes, Ma'am. I have been thinking if we go almost...not even just do our best guess...if we said two to three weeks from this point that we do the due diligence. Then whatever the Court thought was a reasonable amount of time for them to fully comply with their discovery and turn it over. Whatever the date that Court sets from there...60 days after that start a trial. Defense would be [MISSING].

Judge Lind

Well, remember you have to get your [MISSING] together, you have to get your classification information notices all of that needs to play out.

Defense (Coombs)

Yeah, and that actually goes back, that is part of the argument for what we raised in the motion to compel 2 as well: was that if the Government was thinking through this piece, they would have just...like they are really just waiting for the judge to control how the 505 discovery. They would have been ready at that time, to tell the judge exactly what information the OCA [Original Classification Authority] is going to ask for a privilege under 505(c), you would have a 505(i) hearing. What information an OCA [Original Classification Authority] is going to ask for a redacted version under 505(g)(2) or some substitution. They weren't ready to do that.

But this information here, this should be something that the Government is realizing like look, here is Brady. Here is information like the ONCIX [Office of the National Counterintelligence Executive] and everything else. This is information that we know we are going to have to either turn over, because its Brady or we are going to have to request for substitution. So, this is stuff they should have been coordinating in advance. It shouldn't be hanging up our trial calendar. But, it is. And that is because they haven't done that. And, that is the problem on the Government.

And actually we will probably go to an Article 10 motion with regards to due diligence. But, in this instance, whatever the date is, if the Government says, 'Hey, we need x amount of days to coordinate the ONCIX [Office of the National Counterintelligence Executive] say...Brady redactions and substitutions." Well, unfortunately we have to build that in because we are beholden to whatever the OCA [Original Classification Authority] determines they are going to turn over. But that underscores the discovery violation and problems in this case. Because, the Government should know that they have to do this. But, really they didn't think that 701(a)(6) applies to us, by their own admission. We know that as a fact from their filings. So, that explains why after 23 March, when this Court made its ruling, the Government has been scrambling ever since.

Judge Lind

[To the Prosecution.] Do you want to take some time, would you like to reserve a time, or do you have any reply that you would like to address the Court with at this time?

Prosecution (Fein)

We would like to reserve a reply to the due diligence argument, because we did just receive it this past weekend. However, the ONCIX [Office of the National Counterintelligence Executive] portion...I think I know we could argue that today you Honor So, if we could.

Judge Lind

The defense did in fact from the defense motions to compel 1 and 2 so...

Judge Lind

I would like you to address that today.

Prosecution (Fein)

Your Honor.

Prosecution (Fein)

Say again.

Judge Lind

I would like you to address that today.

Prosecution (Fein)

Yes, I know. So what the Government is going to ask for since it is 12:10 p.m. If we could possibly go on a lunch recess right now, and during that time we will have time to finalize the Government's position for the ONCIX [Office of the National Counterintelligence Executive] filing...or the responses. The defense called [MISSING].

Judge Lind

Alright, how long is it...10 minutes after 12. How long would you like for lunch? 13 hundred, 13:30?

Prosecution (Fein)

We will do 13:30 your Honor.

Defense (Coombs)

No objections, you Honor.

Judge Lind

Notice we have something scheduled later in the day. I believe at 15 hundred.

Prosecution (Fein)

We have starting at 15:00 that we could do later. [Likely an in camera review of the CIA WTF damage assessment substitutions for aggravation in the sentencing phase that Judge Lind ruled the Government needed to resubmit.]

Judge Lind

OK. The Court will be in recess until 13:30.

ALL RISE.

ALL RISE.

Judge Lind

Please be seated. This Article 39(a) Session is called to order. Major Fein [missed] and all parties since the Court last recessed are present in Court. Major Fein when we last recessed the Government was preparing to respond.

Prosecution (Fein)

Yes, your Honor. Well, the Government is prepared to respond. I don't think. if we go down the discovery list, we can respond then, or respond immediately based off of how the Court sees proceeding in this motion.

Judge Lind

I believe the defense had just finished with a due diligence piece as well as the ONCIX [Office of the National Counterintelligence Executive] portion. I do plan to go entity by entity with both sides. Does either side desire to begin with the compel discovery with a general oral argument or do you want to rely on the briefs?

Defense (Coombs)

The defense would like an oral argument, so if the Government doesn't want to respond right now to the ONCIX [Office of the National Counterintelligence Executive] piece that aspect with due diligence then we would proceed with our argument.

Prosecution (Fein)

Ma'am as it applied to ONCIX [Office of the National Counterintelligence Executive] we will respond to that as it gets to that portion of the motion to compel the resolution.

Judge Lind

OK. Well why don't you go ahead and begin. Before we do that, do I have the relevant Appellate Exhibits?

Defense (Coombs)

Ma'am. You should have with regards to this motion Appellate Exhibit 96, 98, 99, and 101 as far as the defense filings.

Judge Lind

OK.

Defense (Coombs)

Again, Ma'am the defense requested not only the due diligence, as far as doing an accounting, but secondly we asked this Court to order an immediate production of Brady discovery. When you look at 701(a)(6), the rule clearly indicates that this information needs to be turned over as soon as practical. Two years into the case and we are still asking for this information, hardly qualifies as soon as practical. And, again looking at some of the agencies that we have asked for information...and I know that the Court plans to go through these agency by agency...but just taking a look at the Brady we have been specifically requesting for and the Government has not either provided the Brady or not responded in an adequate way.

With regards to Interagency Committee Review, and the President's Intelligence Advisory Board [PIAB], and the House of Representative Oversight Committee. Taking them in order. With respect to the Interagency Committee Review the Government states that the defense failed to provide any basis for its requests. And, the authority that the Government is looking for is this case is Brady

.

With regards to the President's Intelligence Advisory Board [PIAB], the Court looks at footnote four of the Government's brief...there the Government states that the prosecution is in the process of searching for discoverable information from the [President's] Intelligence Advisory Board [PIAB]. Why is the Government just in the process of searching for this information. We asked for this information over seven months ago, and the Government is saying that they are not just in the process of doing this.

We are just months before trial and they haven't even apparently completed this aspect.

With respect to the House of Representatives Oversight Committee, the Government maintains that two things: One, it has no knowledge of such records, and second, that the defense has not stated an adequate basis for its request. Well again, the basis that the Government is looking for is called Brady.

And, with regards to the adequate no knowledge of the records, the Court has already said, that is not an adequate response. You have to indicate that you have at least done a good faith attempt to go search for those records. So, in this regard the Government's response again their intend to not provide the Brady that the defense is requesting.

Judge Lind

Mr. Coombs, are any of these entities in any way involved in the prosecution of this case?

Defense (Coombs)

These entities, not the prosecution Ma'am, no. When we take a look at what these entities have done, they have taken a look at the leaks in this case, and any possible damage that may have happened, and what corrective steps were taken. So, the fact that these agencies would possibly have Brady is clear, just from the call of what the agency is doing. The agency is looking at the alleged leaks, and making a determination if any damage was done, and if so what steps need to be taken; and if not then obviously the agency would say no damage was done. That would be classic Brady material. And that is why, they are the third prong of 701(a)(6). When the defense asks for by name, and gives specificity that triggers the Government's obligation of the ruling to at least go look, and then come back after exercising good faith effort to look and indicate whether or not that information exists. They can't just simply say they have no knowledge and haven't stated the correct basis.

When you look at our motion to compel discovery 2, we believe there are huge problems with regards to Brady in this case. We still haven't received all Brady from DIA [Defense Intelligence Agency], DISA [Defense Information Systems Agency], CENTCOM, SOUTHCOM. The HQDA [Headquarters Department of the Army] memorandum that we pointed out with regards to due diligence. No Brady from that. Brady from the Department of State, FBI, Department of Justice, ONCIX [Office of the Counterintelligence Executive], ODNI [Office of the Director of National Intelligence], DSS [Diplomatic Security Service with the Department of State], CIA. Brady from the sub agencies within the Department of State. The ones that we have identified, the WikiLeaks Working Group, the Mitigation Team, the Report to Congress; the identity of individuals who might be at risk.

Judge Lind

Let me stop you there for just a minute. The entire CIA, DIA [Defense Intelligence Agency], DISA [Defense Information Systems Agency], CENTCOM, and SOUTHCOM files relating to Pfc. Manning, WikiLeaks, and damage to from documents, reports, analysis, files, investigations, letters, working papers, damage assessments...

Defense (Coombs)

Yes, Ma'am.

Judge Lind

Is it the defenses position that the Government has to search every file in the DIA [Defense Intelligence Agency], DISA [Defense Information Systems Agency], CENTCOM, and SOUTHCOM?

Defense (Coombs)

With relation to this case, yes Ma'am, because these are agencies that the Court has found are within the military's custody possession and control. So this would be no different from saying I want the entire CID [U.S. Army Criminal Investigation Command] file. It is an agency within the military's possession, custody, and control. So, they have not only a Brady obligation, just in general. But, this is a 701(a)(2) obligation at this point. To hand over records that are material to the preparation of the defense. No Court would even question the fact that a CID [U.S. Army Criminal Investigation Command] case file is material to the preparation of the defense.

So, again to the extent that [Defense Intelligence Agency], DISA [Defense Information Systems Agency], CENTCOM, or SOUTHCOM have independent case files or files relating to these alleged leaks then yes, that would fall right in with the CID [U.S. Army Criminal Investigation Command] case file, material to the preparation of the defense. We should get the entire file, not some sort of redacted version, unless of course we are talking classified information and the Government goes through the proper procedures.

Brady from the 63 agencies. We have talked about the fact that we have just gotten now 28 so far. And, it is unclear when you look at the time period that we received these and it looks like they were done based upon a 2010 or at the very latest an early 2011 request by ONCIX [Office of the National Counterintelligence Executive] or ODNI [Office of the Director of National Intelligence]. And the response is in that same time period. Either late 2010 or early 2011. So, it looks to me like a snap shot of the effect has it had on your agency at this point. It is unclear whether or not any of these agencies did a follow up evaluation. because now you are talking almost two years later. So, again some serious concerns about Brady with regards to the type of information that we are receiving.

So, all these outstanding questions support not only the defense's request for due diligence accounting, but also once we have the due diligence accounting we know exactly what the Government has done, what still remains to be done, then a time line for when the Government has to turn this stuff over is the next follow up step. And, I do know that in my motion earlier this morning I for due diligence, I asked the Court to request four questions of the Government. I clearly whatever the Court would deem would be appropriate to find out has the Government done its due diligence requirement for Brady, that would be perfectly acceptable with the defense. Basically what we want is just an accounting of what they have done. And, if they have nothing to hide there should be no problem with that.

So, whatever the Court believes to be appropriate for the Court to make that determination would be acceptable to the defense.

Now, third the 701(a)(2) information that we requested. The Court order of documents that falls under 701(a)(2). Documents within the possession, custody, and control and which are material to the preparation of the defense. We had the argument, they have to be relevant; but something that is within their possession, custody, or control. And, when you take a look at this area, before I get into this. I do want to highlight again the issue of definitions. The Government seems to be...their main objection to our 701(a)(2) discovery requests are they simply do not understand what we are asking for. That seems to be the main reply time and time again, and we highlighted that in our motion. And, it appears to be what they are saying is, that when we ask for damage assessments or we ask for investigations that is not the correct terminology. And, we had a little 802 session to determine what it is that the Government needed to hear in order to understand what everyone does know what we are looking for. And, that is any evidence with regard to these alleged leaks and harm or lack thereof at what cost, in order for us to prepare for case or for our trial.

Now, the Government has said again, that with regards to much of this information, that we need to use the term "working papers", and so we added that terminology. And, when we added that terminology, in order to allow the Government to see what we are looking for, again, "the documents, reports, analysis, files, investigations, letters, damage assessments, investigations, working papers"...we put all that in and renewed our request for much of this information. And now, the Government came back and said, before it was too narrow...and now it is too broad. And, it is unclear what information we have to provide the Government for them to understand what we are asking for, but it is basic. And, we have been asking for this really since the very beginning. As the Court recalls our very first 802 session, even before the Arraignment, we did a telephonic 802 and the defense alerted the Court it would be filing certain motions. Right at the very first motions hearing, we would be asking for certain things and we told the Court we have been asking for these same things since day one.

And here we are still asking for these same things. So now with that background lets take a look at what documents are within the possession, custody, and control of the trial counsel, and what are documents that are not or at least what they believe are not.

The 701(a)(2) lays out the requirement here and at least from the documents that we have asked for I would like to cover some of the things that there is no dispute are within the possession, custody, and control of the trial counsel.

The first is HQDA [Headquarters Department of the Army] documents. In this instance, HQDA [Headquarters Department of the Army] which is of course part of the Army that is clearly within the possession, custody , and control of the trial counsel. There is no question as regards to that. And, it is also self evident why we are asking for that information. The Government states that first, the defense did not put the prosecution on notice as to what the defense desires with regards to the HQDA [Headquarters Department of the Army].

Second, they say that the defense has not provided an aggregate basis as to why all the information within HQDA [Headquarters Department of the Army] is material to the preparation of the defense. Well, taking those in turn, because their arguments don't make any sense. The defense desires what the HQDA [Headquarters Department of the Army] memorandum is asking for. That is what the defense desires. And with regards to material preparation of the defense, lets take a look at what the HQDA [Headquarters Department of the Army] memo was asking for, and again that is Attachment A to our motion.

That memorandum states that any documents or files with material pertaining to any type of investigation, working groups, resources provided to aid in rectifying the alleged compromise of Government information, damage assessments of the alleged compromise, or consideration of any remedial measures in response to alleged activities of Pfc. Manning or WikiLeaks.

That is what the HQDA [Headquarters Department of the Army] memorandum is asking for. So, again it is self evident as to why that would be relevant and why that would be material to the preparation of the defense.

The Government cannot say, "Hey we don't know what you desire?" or "You need to identify why this information would be material to the preparation of the defense." That is not onus on the defense. If the Government believes that some of that documentation is not material in the preparation of the defense, the Government goes to the Court, and says, "Hey. This stuff is not material to the preparation of the defense." But they don't just simply say, "Nah. We aren't going to give it to you."

By opposing discovery, especially discovery with regards to HQDA [Headquarters Department of the Army], they just simply look like they are trying to hide things. Instead of doing what their ethical obligations are, and that is to produce the documentation.

Now I would like to move on to documents that the Government disputes are within their possession custody and control. The Government acknowledges that the FBI and DSS [Diplomatic Security Services of the Department of State] participated in joint investigation. And it also acknowledges that the Department of State, Department of Justice, and CIA, and ODNI [Office of the Director of National Intelligence] are closely aligned with the Government in this case. The Court has found that ONCIX [Office of the National Counterintelligence Executive] in addition to all this is closely aligned. The Government still maintains that ONCIX [Office of the National Counterintelligence Executive] is not.

Judge Lind

Alright. The Court has found and I did, is it the defense position that closely aligned or not?

Defense (Coombs)

Yes, it is the defenses position that they are closely aligned.

Judge Lind

And, what makes them closely aligned?

Defense (Coombs)

Well, in addition to the Court's 23 March ruling...

Judge Lind

Well how do I know?

Defense (Coombs)

Well I would go as far as siding for my basis, but they are closely aligned in this case, because as you start to look and unravel the relationships between the various agencies, ONCIX [Office of the National Counterintelligence Executive] it's clear took the lead along with ODNI [Office of the Director of National Intelligence] of contacting all the agencies that might have been impact by the Department of State releases, and they identified each of the cables that were relevant to that particular agency...and they ask them, "Take a look at the cables. Tell us if this has caused any damage or any impact on your organization and if so how. And, if you have had any impact tell us what you are doing as the remedial steps and the cost of those remedial steps." And so that information goes back to ODNI [Office of the Director of National Intelligence] and ONCIX [Office of the National Counterintelligence Executive]. And it is clear that ODNI [Office of the Director of National Intelligence] and ONCIX [Office of the National Counterintelligence Executive] are leading this based upon probably a Department of State request and the fact that the Department of State is closely aligned with DoD [Department of Defense], part of a joint Investigation. That is how all these agencies are connected. The defense also believes if you start to look at the aggravation evidence, you will see where the Government has obtained their information and how those agencies are closely aligned as well.

In addition to that, in this instance ONCIX [Office of the National Counterintelligence Executive] clearly is the repository of what damage may have been caused by these alleged leaks. [MISSING] So, that information is being shared with the Government again, they are closely aligned.

Now the defense maintains that when you are requesting discovery from agencies that are participants in a joint investigation or who are closely aligned with the Government that this would fall under material that has been in the possession custody or control of the trial counsel under 701(a)(2). Now if we previously argued this in regards to obtaining the testimony of the Grand Jury as to why this is in the military possession, custody, or control [missed].

And the Government at that point as well as in this motion, has maintained that the correct analysis for this Court is on the turn, "military authorities". That is their "correct analysis" for their 701(a)(2). But its not. The correct analysis is what is within the possession, custody, and control. That is the term that the Court has to look at.

Judge Lind

How do you support that with the analysis of the R.C.M. 701(a)(2)?

Defense (Coombs)

In what respect Ma'am?

Judge Lind

It says, "Except for subsection (e), the rule deals with discovery in terms of disclosure of matters known to or in the possession of a party. Thus the defense is entitled to disclosure of matters known to the trial counsel or in the possession of military authorities. Except as provided in subsection (e), the defense is not entitled under this rule to disclosure of matters not possessed by military authorities or to have the trial counsel seek out and produce such matters for it. But see Mil. R. Evid. 506 concerning defense discovery of government information generally. Subsection (e) may accord the defense the right to have the Government assist the defense to secure evidence or information when not to do so would deny the defense similar access to what the prosecution would have if it were seeking the evidence or information. [See United States v. Killebrew, supra; Halfacre v. Chambers, 5 M.J. 1099 (C.M.A. 1976).]" I guess when I am looking at that I seem to be flipping over 703.

Defense (Coombs)

Your, Honor. I do understand. That analysis when you also compare that analysis with the analysis with R.C.M. 701(a)(2) as to how that rule was patterned after Rule 16, the analysis that the defense would believe that the Court has to go to first. Rule 16 and 701(a)(2) are identical in every respect besides that Rule 16 uses the word, "Government". Rules 701(a)(2) is suppose to be more expansive, not only possession of the trial counsel, but also in possession of military authorities. The analysis that the Court just read applies to possession of military authorities. And that is why 701(a)(2) and discovery in general in the military is much broader, because we say not only what is in the hands of the trial counsel but now anything that is in the hands of military authorities you have to turn over.

So, that whole analysis is spot on, the analysis you just read is totally correct with regards to military authorities. But the determination the Court has to make here is what is in the possession, custody, and control of the trial counsel? And, that is what the defense is saying, if the Court looks to Rule 16 and holds to the Federal precedent, because unfortunately there is not a lot of military...there is actually none, because these issues usually are not really litigated, but you have this same issue come up in the question of what is in the hands of the US Attorney?

And, Federal Court after Federal Court after Federal Court rules that look if the U.S. Attorney goes to agency x and takes the damage of his or her ability to get files and records form that agency, and they are part of a joint investigation, or they are closely aligned, or they get the benefit of that relationship...that U.S. Attorney cannot then say that. "Their records are not within my possession, custody, or control." They have to at that point in a matter of fairness say that if the defense is asking for records from that same agencies, those records have to be produced.

And, the Trevino case actually lays this out, and kind of a plain language, it just simply has to be true. The Trevino case says, look, "If we would allow the Government to do that: partake of working with other agencies that from a standpoint of just looking at, are clearly outside of the normal custody, control, or possession of that Government US Attorney. You allow them to do that, and then leave anything that is harmful that would in fact have to be produced to the defense, because it is material to the preparation of the defense, leave it at that other agency. Then you would be in the situation where a U.S. Attorney would have every decider to involve some other agency. The same should be true here in the military.

If the trial counsel takes advantage of a joint investigation with the FBI, with the DSS [Diplomatic Security Service of the Department of State], with the Department of State, and then at other agencies, the Department of Justice, if they take advantage of going to...that is why it is going to be important to see what aggravation they have. If they take advantage of going to various agencies and cherry picking the information that is beneficial to that case, and then leaving it in the repose of those agencies anything that would be material to the preparation of the defense. Then you are in the absurd situation, an accused in the Federal system would fair better than an Accused in the military system. Because, an Accused in the Federal system could say to his civilian attorney, "Hey. Go push the judge under Rule 16 to get me possession, custody, and control of those records at those other agencies.

And time and time again, Rule 16 and the cases that we cites, judges say, "Spot on. That is correct. The Government cannot take the benefit of evidence and then turn a bling eye to your request, under Rule 16."

In the military, the military accused where he or she could not ask the military counsel or civilian counsel to say, "Hey. Force the judge to make the Government produce those records, because it isn't in the military possession, custody, or control." Couldn't do that. And that would fly in the face of just about every case that discusses discovery in the military system.

Every case says that an Accused in the military enjoys a broader right to discovery than his or her Federal or state counterpart. So, that would not be true in this case.

Judge Lind

Talk to me about is there a reasonableness aspect to it. I am looking at the [US v.] Libby case, where they wanted the entire CIA briefing book, and the judge said, 'Well. you get some, but not all of it."

Defense (Coombs)

Right. There certainly is, Ma'am. The Libby case is a great example where the Government said, "Hey." They got the full advantage of getting cooperation with the White House and other agencies to get records, and then they tried to say...the U.S. Attorney tried to say, "Hey. This is not in our possession, custody, or control." And the judge said, "No. No. No. Wait a second. You don't get the benefit of going there and then now [MISSING] down to say, 'Sorry, its in some other agencies file cabinet, not ours.'"

There certainly is a reasonable standard. And that is why, in this instance, the reasonableness defense would argue is anything that is dealing with the alleged damage or lack thereof from these leaks; anything dealing with Pfc. Manning specifically; and or anything dealing with any sort of remedial steps taken after the [MISSING], after this whole process."

So, if you take a look at why we are asking that, it is clear that that would be material to the preparation of the defense. Just for argument sake, even though the defense hasn't seen anything to that extent. But, say, there is something out there that says, "It was just terrible. End of the world damage, because of this." That clearly then influence the steps that defense may or may not take, for their preparation for trial moving on to...

On the opposite side, if all these other agencies looked at it and said no damage whatsoever, then it would have a similar impact in what we do and the decisions that were make. And so that is why that stuff has to be deemed within their possession, custody, and control, if in fact it is a Joint Investigation for a closely aligned agencies from the defenses' position.

Now, this again goes back to, and the Court is correct in saying on a lot of this stuff turns on what does the Government intend to use on aggravation. And that is the next request that the defense is asking for: that the Court order the Government to produce the evidence it intends to offer in this case issue or the sentencing that deals with evidence from these other agencies...either aggravation or an attempt to prove a particular element if they are relying on some other agency for this information.

Because, when the Court sees that then it becomes clear the extent of which the Government has had the ability to work with these other agencies to perfect its case. And for arguments sake, lets say there is something from the Department of State that they are relying upon, that they are getting. Well, you shouldn't be able to say that that agency's records are not within your possession, custody, or control; but when the defense is asking for that you say, "No. We can't" or ONCIX [Office of the National Counterintelligence Executive] or ODNI [Office of the Director of National Intelligence].

So that is why the defense is asking you to look at that, not only for the purposes of deciding what is in the military's possession custody or control; but the also when you are taking a look at their due diligence and their Brady, but they are 701(a)(2) responsibilities.

Because, if you see that the Government has spent all this time to the detriment of providing discovery to the defense, that again supports the need for an accounting, the need for immediate production, and possibly the need for additional time for the defense to incorporate this information.

So [MISSING] your questions.

Judge Lind

Can I see the Court calendar for just a moment please?

Unknown Male

Appellate Exhibit 112 is a closed one. The Government's is 113.

Judge Lind

[missed] while we are on the subject...Thank you. Apologize.

I am looking to see where we put in here discovery of the [MISSING] analysis. We didn't. Thank you.

Looking at Appellate Exhibit 70, which is the [MISSING].

The Government's reciprocal discovery request exposures and information. So we sort of have it going all the...on in the classified information and unclassified information. Okay.

Prosecution (Fein)

Yeah, in the proposed case calendar. The Government also has it spaced out as motion to compel discovery; production 2, 3, and then a rolling...

Judge Lind

What we don't have here then..is the motion to compel that the defense has filed in discovery coming from the Government that the defense has not involved in your merits or sentencing case at this point. Don't worry. I will address it this week.

Defense (Coombs)

Ok.

Judge Lind

Major Fein.

Prosecution (Fein)

Your Honor very quickly so that we can then focus on each item the defense has requested. Ultimately, there are a few points that the Government would like to highlight from the [MISSING] brief.

First and foremost the defense continually requests information under R.C.M. 701(a)(2) for information that is always traditionally and before this novel argument by the defense has been set outside of military authorities. The majority [missed]. So up until the point of the actually adjudication from the Court, the Government has maintained from the very first request, that the defense has not provided a proper legal basis or factual basis for those pieces of information.

And again, we are going to go through each one, but it is going to be a common theme. As separate and apart from any type of Brady obligation, the Government has never maintained that there is any information that could be withheld for Brady material. The Government did, however, in our view in the very first motion to compel that 701(a)(2) didn't apply to classified information.

That was litigated, and absolutely 701(a)(6) does apply , but Brady is always applied. But if there is Brady material out there, it will be turned over to the defense. But, that brings me to the second point.

If there is Brady material out there, that is what the defense is entitled to, if its outside of the 701(a)(2) or a motion to compel production.

Judge Lind

Well let me ask you...well motion to compel production...let's go that way. The analysis that I read to the defense...assume 701(a)(2) doesn't apply, it's not in your custody or control...and then you go on to R.C.M. 703. So, am I getting your position correct...I believe I saw it in the defense's brief...that in 701(a)(2) doesn't apply you might want to develop the necessary [FEIN INTERRUPTED]

Prosecution (Fein)

Yes, Ma'am. Absolutely!

Judge Lind

[missed] R.C.M. 703 order production...

Prosecution (Fein)

Yes, Ma'am. But to improvise that any reason something is relevant and necessary and required as kind of a side note, this one novel argument under R.C.M. 701(a)(2) doesn't apply then now 703. The Government's ready to litigate all this and that is why we are here today. But, since the defense keeps trying to focus on two years of making requests for discovery request that the prosecution received was in late July of 2010 [Manning was arrested May 29, 2010]. They started rolling in September 2010, and the majority of those requests, which the defense is providing you in different exhibits and referenced all have the same canned, drawn language of every and all documents copied and pasted from 701(a)(2) of all of the following organizations.

And despite the Government's over the last year and a half stating you have not provided a proper legal basis or a factual basis. We keep getting the same requests and it's actually...in this round...although some items as we go through them, now do have some specificity.

But, what the Government hopes it does not confuse the Court and confuse the defense on this issue, is that there are different standards that apply of course. The defense has always focused on the 701(a)(2), at no point does that mean just because...that I am entitled to [MISSING] under 701(a)(2) that under a William's search obligation 701(a)(6)...that same information couldn't be discoverable. But, it's a different standard and it is only the material that is or does fall under the 701(a)(6) Brady.

Judge Lind

So is it the Government's position that information in control of another agency in line with the Government could never be material to the preparation of the defense such that it would be relevant and necessary for the production of under R.C.M. 703?

Prosecution (Fein)

Not stated that way. That is not our position, you Honor. It is just simply under 701(a)(2). So open the files, because 701(a)(2) is essentially the open file discovery that makes our system so great in American jurisprudence that we have more. We just hand them the file at [MISSING] and keep handing over documents. This prosecution the Government has done in this case except for very specific classified information, which is what the subject of litigation.

So, the defense continues to focus on 701(a)(2) in preparation of the defense within military authorities. Again, general requests even if it is within military authorities, and if it is outside continue. It wasn't until now in the Court's last ruling that now there is a last conference that says, "Oh, and by the way 703." So bottom line your Honor. The Government does acknowledge that if they make the relevant and necessity argument, and the Court rules in favor under 703, and compels production of certain material. First the Court needs to know what exactly they are asking...thus the Court will know what to order...instead of all files, all information...and then at that point...absolutely...the Government then is compelled...ordered by the Court to go forth...grab those documents...through the different processes, and if the custodian does not want to freely turn over the documents the 703(f) provides me procedures to go forth if its classified...and that is a reason not turn to over, 703(f) has those procedures built in deploy [M.R.E.] 505...then at that point, yes. The Government is going to comply. That is why we are here today. And, that is why this process is set up.

Most of these if we go through will bring right back to this point...overbroad requests...semantics do matter. This is a trial. If the defense wants a damage assessment that is what...they gave us notice...specific notice...is prosecutors...in material preparation of defense standards...the Courts have held that you have to give the prosecution enough notice of what to go find...and we have told the defense over and over again. You did not provide us adequate notice. And, once there was enough confusion on the difference between the an investigation and damage assessment, the prosecution voluntary provided the Court and the defense a legal brief, not a arbitrary brief, based off of legal citations of what the difference is between these terms to help guide the defense.

But instead the defense is trying to open up Government's spouts, by taking a standard of William's that CAAF [Court of Appeals of the Armed Forces] held for interpreting the Brady obligations under 701(a)(6), using the term, "closely aligned"...using that definition and that terminology that we have on the record for the defense listed as a prosecution every entity we consider closely aligned, based off our relationship as prosecutors with those organizations, based off Williams or closely aligned.

Therefore, we have the obligation to search for Brady material, 701(a)(6), material in those entities. Above and beyond that requirement, the prosecution has also outlined for the Court that we have undertaken entities that we might have the additional ethical obligation to search. So, to go back to Government briefed the Court in previous motions hearing, at the end of the day there are now six ways that have come up for this information...six authorities that the defense can chose...I'm sorry...the Government has an obligation to produce material.

701(a)(2) is within military authority...a specific request. And, we litigate it if we agree, and we did it...if we don't we litigate it and the Court orders us. The next three are the Williams, the buckets of Williams, Brady Material, 701(a)(6). So, joint investigations for the prosecution, closely aligned organizations, and then finally specific requests from a specific entity for Brady material. So that is the first and then the third. The next three. The last one we have always maintained is our ethical obligation. So, if its not a specific request from the defense, it's not closely aligned with the prosecution, or it's not a joint investigation, we as attorneys could still have a good faith basis that information could exist. Therefore, we have an obligation, ethical, to find it and disclose it. If it exists and it's Brady material. And we have outlined all this in the prior filings as well...all the different organizations. And that is why the number 63 the defense keeps using.

Judge Lind

Let me ask you a question. Defense, in oral argument, advised the Court in response to reasonableness question, that they were looking for these entities of files that involved direct damage from the alleged leaks, files involving...labeled involving Pfc. Manning, and remedial steps to litigate those leaks...does the Government consider that specific enough?

Prosecution (Fein)

Your Honor, may I have a moment?

Judge Lind

Yes.

Prosecution (Fein)

I would like to pull an Appellate Exhibit. [missed] Your Honor, the Government requests the Court to please reference Appellate Exhibit 12. Appellate Exhibit 12 is the prosecutions supplement to the prosecutions proposed case calendar. And in that Appellate Exhibit, the last enclosure is a sample memorandum that the prosecution sent out to different organizations to determine who were closely aligned under the Williams case. And I think this will answer another question as well.

The prosecution in anticipation based upon [missed]. The prosecution understands the severity and the broad impact that the charged offenses have on the Government, anticipated a discovery...I guess potential discovery issues. So in order to get ahead of that, as previously described in this Appellate Exhibit, the prosecution [missed] without the defense request, sent out these memoranda. This is a sample memoranda, your Honor. And if you look at the language...I will direct you on that enclosure to the second page...the first paragraph of the second page states..."as indicated above, the prosecution requests that you, [missed] conduct an immediate and thorough provincial search of your records for the information above, and that information is a person identifying information of Private First Class Manning and other types of search terms related with this prosecution and the all [missed] investigation. So, any information identified with First Class Manning and also for any information directly concerning Private First Class Manning, including but not limited to any documents that discuss damage or harm cause by Pfc. Manning and WikiLeaks and any measures considered particularly in response the activities of Pfc. Manning and WikiLeaks."

So, the prosecution did on their own, was to submit these requests for the entities to search, finding these records, preserving these records, so the prosecution can search through them.

What the defense is trying to do at this point your Honor, is to say that because the prosecution affirmed or recognized that this might become an issue, they are using the same terms that HQDA [Headquarters Department of the Army] used in their execution of this request that was sent to the Department of Defense by the Army prosecutor. To suddenly say that, that drives what is material to preparation of the defense versus the most broad application of anything that could potentially that could potentially even deal with Private First Class Manning and this court martial, which was the prosecution's intent as evidence in this example, to find a population of documents and information not files, not centrally located documents organized in a manner that we easily identify, pull, search, produce...but find the information, tent the information , and then allow the prosecution to do due diligence [MISSING] at the macro level.

But what is happening it appears, is that that same process...that exact language that was used by the prosecution to do this, is now being used [missed] in preparation of the defense. Every document that deals with WikiLeaks, every document that might Private First Class Manning's name on it, doesn't necessarily make it related this court martial. And, that might sound odd at first, because it is Private First Class Manning's court-martial for compromising national security information through WikiLeaks, but it doesn't necessarily mean it all [missed]. The defense is required under the rules and the applicable [missed] rules, to submit a specific request to specific entities. And, then depending on that request we can then litigate today what they ask for, whether it is or is not disclosable.

I know that is a much longer answer, your Honor, then you were looking for but again that should not...the Government argues that this was a big point for this brief for individuals...that standard should not be used towards the preparation of the defense. That means anything that had Private First Class Manning's name on it or WikiLeaks or both would be material for preparation of defense from the Government. That is the defense's argument, that is now we have been dealing with the amount of classified information, another [MISSING] tactic.

One that hasn't necessarily been contemplated in the rules, but it definitely [missed] growth of 701(a)(2) this idea that the entire Government's files are open in our open file discovery system....meaning the defense argues that 701(a)(2) should be interpreted like Rule 16 and starting [missed] have just now the Court was the two are the same, BUT and then skips over the "but". If as the discussion state 701(a)(2) was developed to mirror Rule 16 then the drafter specifically chose to not use the word Government and chose military authorities. So, any analysis of Rule 16, the Government offers, is inapplicable to 701(a)(2), because they are completely separate rules when it comes to this issue. Military authorities, not military authorities and if its not military authorities then showing relevance and necessity, not material to the production of defense. That is how you compel production.

That is if you have any general questions your Honor I am ready to go through these.

Judge Lind

Ok. Lets go through them.

Prosecution (Fein)

Yes, Ma'am.

Judge Lind

Do you find you have them organized in a certain fashion or does either side want me to go step name by name?

Defense (Coombs)

The defense has no problem with the Court identifying...

Prosecution (Fein)

Same, you Honor. Whatever is easier for you...

Judge Lind

Alright. Let's start with the Government. Federal Bureau of Investigation [FBI].

Prosecution (Fein)

[missed]

Judge Lind

Certainly. Do you consider it an aligned entity?

Prosecution (Fein)

I am sorry Ma'am.

Judge Lind

Do you consider it an aligned entity?

Prosecution (Fein)

Ma'am the Federal Bureau of Investigation [FBI] we do consider an closely aligned entity for Williams, Brady purposes.

Judge Lind

Was there a joint investigation for the FBI and the [U.S. Army Criminal Investigation Division] CID?

Prosecution (Fein)

Yes, Ma'am.

Judge Lind

What files do they have pertaining to Pfc. Manning?

Prosecution (Fein)

Well, Ma'am, if I may. There is one distinction that needs to be made. That is, the Federal Bureau of Investigation [FBI] is very large agency of the Federal Government. There is a law enforcement arm and then there is the main FBI headquarters. The reason we define this is because, all one entity does, does not necessarily equate to what another does as well. And this will come in to play when we talk about an impact statement the FBI has created, and it is ready to be filed with the Court under 505(g)(2) by the Government. But to quickly answer the question, there as a law enforcement investigation that included Private First Class Manning. There is one that exists. There are files because of the law enforcement investigation just like the Army CID has a case file. That case file has been reviewed up to the date of our disclosure to the defense. The entire file that directly related to Private First Class Manning has been reviewed by the prosecution. And, any documents in that file that were identified containing potentially Brady information, and that would include any information that is favorable to the accused, and material to guilt or punishment or sentencing has been turned over.

Judge Lind

[missed]

Prosecution (Fein)

It has been turned over with redactions and material that does not fall within the Brady standard. But, in addition the prosecution has also received approval to turn over other information that would really focus...would be similar to Section 3 [This could be concerning Article III, Section 3. Treason.] type files. Statements that have individuals might have made based off of Pfc. Manning making them to them.

Judge Lind

You said this was a joint investigation with [U.S. Army Criminal Investigation Command] CID. Do they mirror each other or are they the same?

Prosecution (Fein)

No, your Honor. They do not. Each agency, the Diplomatic Security Services [DSS], the Department of State, the Federal Bureau of Investigation [FBI], Army CID each had their own purpose although it was coded as a joint investigation because they would share certain information, and that what was done. Army CID only had certain authorities, and their focus was of course on the charged misconduct of Private First Class Manning downrange and back home. And, FBI had and has an ongoing investigation that also include Private First Class Manning.

Judge Lind

So if there is a investigation that is a criminal investigating Pfc. Manning how would that not be relevant and necessary for production.

Prosecution (Fein)

Well, your Honor.

Judge Lind

[missed] in parts? That is not material that, that is not something the defense can show necessity or relevance.

Prosecution (Fein)

More, than likely your Honor. And, in addition to the question of what you are asking, the prosecution from the very beginning, that is why in every response being given on Brady in that file, the Prosecution maintained that we have turned over at a minimum Brady material. We have also turned over all material as it directly related to Private First Class Manning. An example, we used in a previous session was returns from Grand Jury subpoenas. That is in the FBI file, we have turned those over. Private First Class Manning base [?] records and phone records. If don't intend to use those at trial [NB Fein said "If"]. And, if we were only following the Brady standard than keen to that expression.

Judge Lind

So what is left in the file that hasn't been turned over to the defense as germane to Pfc. Manning? Are you telling me there is a broader file and this is a piece of it?

Prosecution (Fein)

Your, Honor. Private First Class Manning is a piece of the FBI file, yes.

Judge Lind

And, of that piece how much has been turned over. What remains that has not been turned over to the defense?

Prosecution (Fein)

Ma'am, can we have a moment? [missed] exact.

Ma'am. Your Honor. The FBI law enforcement file investigation is much broader than Private First Class Manning. We have turned over all the documentation that is germane to Private First Class Manning for any witnesses that we would have identified or we suspect to put on our witness list.

Judge Lind

So, all these...? I guess I am going to interrupt you for just a second to ask the defense...the discovery that you got, what percentage of it is redacted?

Defense (Coombs)

A very large percentage of it Ma'am. In fact, I could give you now an example of an unclassified redacted [missed] information that we have received that is from the FBI, that also the defense would also ask the Government to provide to the Court, just two examples bates numbers 447635, 447640 that is five pages there, and 447608 through 447626 just give you an example of the type of information that we are receiving from the Government form the FBI file. Normally, what happens is we receive pages that the lion share of it is simply black, the entire page is black. And, those goes to our identification of Brady information for the motion that Captain Tooman will be arguing. But also it goes to the problem of the Government now saying that we are redacting the FBI file because we don't believe it is material to the preparation of the defense or it falls under our Brady obligation. It is no different if they went to the [U.S. Army Criminal Investigation Division] CID file and said, "We are going to redact this, its not all that important to you." They interview some witness that was unrelated, "So, we are not going to give you this." They chose to redact the FBI file based upon their view of what is important to us. And, because this is a joint investigation, that can't be acceptable.

They should hand over the investigative file that deal with my client. I apologize in advance for giving this to the Court as the example. And I know the Court reporter so...that will not be too friendly but this is the Grand Jury information that...

Prosecution (Fein)

[Frantically jumps up.] Your Honor.

Defense (Coombs)

...the Government has provided that is unclassified. We ask that this be marked as the next Appellate Exhibit.

Judge Lind

Is that the Grand Jury testimony?

Defense (Coombs)

[Coombs holds up a thick file.] It is the Grand Jury testimony that they provided from the FBI, Ma'am. And, you will see there are pages of...basically 30 pages running where it is just complete black.

Judge Lind

Why would this be the size of the Grand Jury? I want to know more on that.

Defense (Coombs)

Well this is an example of stuff coming from the FBI, so that you also have the two bates ranges that we have given you. The FBI file they put as classified as far as their investigative file. So, from that standpoint. That is why we are asking that you look at the two bates number ranges, so you see that this is a prime example of a type of information that we received from the Government. Heavily redacted to the point that it is very difficult even to put information in context, let alone understand what may be Brady, and what may not be Brady. The Government goes then to say, well we are giving you at least Brady. And, they provide the redacted format like this, which is very similar to what we see in the bates number ranges. And, again, those bates number ranges are 447635, 447640, 447608, and 447625. Just two very small examples...if the Court even looked at the entire FBI file that the Government produced, and then the way they produced this to us is not with some index, where they say here is what you have. They give us bates numbers instead of Manning's name, BM Manning, and then bates number range, kind of like what I just provided to you in fives...in some cases with no particular order. As you go through these, you just see page after page of just all blacked out information. And then you get a few lines on one page...and you get page after page of blacked out information. And, that is really what is driving the defenses' request for the Government to have to identify precisely what is Brady within the files that they are providing us, heavily redacted.

But then also underscores our motion to compel discovery that the Government should provide an un-redacted version of the investigative files [missed] my client. So, then again it is no different than taking the [U.S. Army Criminal Investigation Command] CID files of the original investigation and just redacting huge portions of it, saying "This is just not important to you." That is the problem the defense has with what the Government has provided.

So, they say they have provided the entire FBI case file, it doesn't appear that...to be that way for the defense. And, certainly is not an informed [missed] the defense can doing anything with because it is heavily redacted to the point that it really doesn't have any context.

Judge Lind

Major Fein. How long was the FBI investigation?

Prosecution (Fein)

You, Honor. I will have to get back to you on the entire page count. But the page count that the prosecution has produced to the defense is 8,871 pages...636 documents. Your Honor that does not include the Grand Jury testimony, and just the reason I stood up is that Grand Jury has in open court is currently under your protective order and an Article III Judge's protective order and should be sealed and not held around in Court, and should be stamped as such.

Judge Lind

It is?

Prosecution (Fein)

On subsequent pages your Honor. You might take a look at it or...but it was provided under your protective order and your direction based off the disclosure protective order and the Article III Judge's protective order, and the defense has acknowledge that.

Judge Lind

Mr. Coombs?

Defense (Coombs)

This is provided in unclassified discovery. They provided classified portions of the Grand Jury testimony. That is not anything within that. This is the unclassified discovery that they promised in the email so I haven't shared this with anyone, other than to ask my legal support, Chief Santiago, to print it up and bring it up here, and hand it to me, and now I am providing it to the Court.

Judge Lind

I would let the Court Security Officer take a look at that...

Prosecution (Fein)

[Jumps up and interrupts.] Uh...your Honor, to clarify its not classified...its Grand Jury testimony information protected. And, we will provide the Court the protective order that Mr. Coombs and the whole defense counsel had signed based on off your previous order on the Grand Jury testimony. The Assistant U.S. Attorneys went to a Federal Judge to have it approved to be turned over for limited purposes. So, that should at least in our Court be filed under seal.

Judge Lind

Alright. So if I am considering it as part of this then it will be considered in camera then...

Prosecution (Fein)

Correct your Honor.

Judge Lind

So, as long as we are not discussing any specifics on what is in it...

Prosecution (Fein)

Correct, your Honor.

Judge Lind

OK. So you disclosed about eight thousand pages. Do you have any idea of what percentage of the total file that might be?

Prosecution (Fein)

Your, Honor. It is hard to estimate right now. It is probably around 50 percent. I get that is a very rough estimation, and we can get you a number by the end of the today. In fact, I will provide a number before we close this session.

Judge Lind

I guess why I am confused on this is that when we were disclosing the portions of the FBI file, understanding the Grand Jury is a separate issue, but the other pieces of that file, are they as heavily redacted as this [missed].

Prosecution (Fein)

Yes, your Honor. There are some documents that are heavily redacted from the FBI file. The FBI file is much broader than just Private First Class Manning and directly related to Private First Class Manning, and it is also classified information the majority of it. So, there is multiple authorities to being pulling back. To answer you question before to how its relevant and necessary, and how it is not, is that the defense has not made a showing in their motions in how the redacted portions would be portions would be relevant and necessary. So, yes we can litigate that, and I suspect we are going to have to litigate that but it has been a 701(a)(2) motion up to this point.

Judge Lind

[Lind interrupts Fein.] Let...lets assume for purposes of this litigation...

Prosecution (Fein)

Yes, your Honor.

Judge Lind

That the ruling that I made before that evidence that is material to the preparation of defense can be relevant and necessary under R.C.M. 703. Not always is, I grant you that, but it can be. So, when we are talking about an investigation by a law enforcement entity against an Accused, I guess I am having trouble thinking about how that is not relevant and necessary.

Prosecution (Fein)

The Government would agree with you for portions...agree that bar relevant and necessary to the Accused. I am not trying to be flippant with this circular argument but for the portions that are relevant and necessary to the Accused, we agree.

Judge Lind

Well, how is he going to make particularized assertions when he doesn't know what is in the redacted portions of the file?

Prosecution (Fein)

Your, Honor. He at least has to make an assertion. The Government has produced its required Brady, while its protecting an ongoing national security investigation , and protecting national security information...those two items and we have turned over the Constitutional protected information. So it leads us to today, this litigation. The defense makes the showing, and the Court orders all relevant and necessary portions. Then, the prosecution would assume...or would ask the defense what is going to happen...that the prosecution at least gather, or be able to file under 701(g)(2) , and 505(g)(2), or 505(i), the privilege must be invoked...to turn over that portion. But, we then endeavor to turn over anything that would be considered relevant and necessary. The only reason I am using that standard is because that was not the standard that was not the standard we used when we reviewed the documents. But probably the majority of the information un-redacted is what is relevant and necessary.

Judge Lind

OK. Are you calling any FBI as witnesses?

Prosecution (Fein)

No your Honor we are not. But, your Honor we do not anticipate doing this, because again the defense would run the burden then even making [missed] So the Government would ask if the defense is not saying we want the information behind the redactions under 703, here's why. Then we would ask that that Court give leave to the prosecution for at least a day, to determine if we would call a witness or not, or me to call a witness.

Judge Lind

OK. I am confusing here. I am certainly not asking you to run right out and get an FBI agent here to testify right now. I am saying try.

Prosecution (Fein)

No your Honor. Other than possibly for the purposes of authentication. But not for any other purpose. And, your Honor, as we have stated in previous filings and previous sessions...the only standard we are currently focusing on, because of the format of discovery is 701, 703, Brady, but also 914 if we go with someone testify, and of counsel any statement in any record the Government looked at that we know exists need to be turned over if they have been adopted by the Army witnesses that we are calling, and others if we qualify them as an expert, on the basis their opinion. So, there is the other rules that might apply to that [missed] tracking primacy of.

But, as far as the case in chief...or even the at this point the case and chief or possibly the synthesis case, once the Witness List is due we do not anticipate authentication issues to have an FBI agent that focused on Private First Class Manning called as a witness.

Judge Lind

What kind of access has the Government had to those files?

Prosecution (Fein)

Your, Honor. The only access that the Government has been given is solely to look for Brady material.

Judge Lind

Is there an unclassified piece to that or is it all classified?

Prosecution (Fein)

The entire file is classified, but I am sure that there are portions within a classified document that might unclassified.

Judge Lind

Is there anything that the Government would like to address with respect to the FBI files?

Prosecution (Fein)

Yes, your Honor. First we start...got the FBI law enforcement investigation, the FBI headquarters through their intelligence organization, also conducted an impact assessment. The prosecution...once the prosecution became aware of that started working through the authorities to turn over the material...the information that favorable to the Accused for guilt or punishment...the Brady material...and we have gotten to a final point where now the Government just needs to file a 505(g)(2) motion. As we stated in our file and footnote...it is not that we are withholding it...we are ready to file it. We just need to wait for our case calendar or to have this discussion now. What the Government proposes based off this quick 802 on the record now is that the Government comes across classified information such as Brady material that exist, that we file immediately those 505(g)(2) requests to the Court. So, that that information can keep churning, instead of keeping it all to a certain point. So, for instance, we have the FBI approval, we have a summary that has been created, we just have to put the motion together and file it, based off the Court's [missed].

Judge Lind

Defense, any objections to having rolling 505(g)(2)s?

Defense (Coombs)

Well again, talking about thousand dollar questions, when did the Government become aware of the FBI impact statement. Once they became aware of it, why didn't they notify the Court? So if they are saying they just became aware of it recently then again, when we asked for any sort of damage assessment, or any sort of analysis of these leaks by the FBI why didn't the Government ask for this information and obtain it at that time? So, in this instance, the rolling 505(g)(2)...the problem with this is going to become, unless we build in time at the end to allow us them incorporate whatever information we get...but this information is going to fall on our laps shortly before trial baring an extension...

Judge Lind

Well rolling 505(g)(2) doesn't fall all in your lap as opposed to...

Defense (Coombs)

No. I agree. And, so down that road, the further that we go down that road the closer we are to trial, assuming the current trial date remains the same. And the more difficult it becomes for the defense to even incorporate any of the information into our case. So that's the problem with this...of the Government saying, again I would like to know when they were aware of it, and why they weren't aware of it before. Now, we go back to the request for the due diligence, for them to lay out what they have done.

Judge Lind

Oh. I understand that Mr. Coombs. And, Mr. Coombs, for the record the Court is certainly willing to entertain any good cause motions for continuance, I am not interested in trying this case before the defense has had a chance to prepare.

Defense (Coombs)

And, that is exactly what we have asked for in our motion to compel discovery 2. What we are asking is that the Court if the Court does order the due diligence give the Government three or four weeks to do that, we can continue with the case calendar that does not impact the actual trial...perhaps with witnesses, the 505(h)(1)...and then once we get that discovery give us two or three months to incorporate it.

Judge Lind

Alright, we are addressing that aspect of the motion at the next session [June 25, 2012]. I understand the defense argument.

Government, are you prepared to tell me when you did learn of this impact statement?

Prosecution (Fein)

Your Honor, the Government would at least have the chance to argue the due diligence first and then answer that depending on the Court's order. But what the Government would say is that the defense seems to confuse the issue on what it has asked. [missed] referral they asked for any impact or damage assessment in the FBI general request, under 701(a)(2), the Government replied you are not entitled to it under that proper authority or proper legal basis or factual basis. So, once the Government learned of it, then we started working the approvals. But the Government is prepared to say, because I happen to know that answer your Honor, that it was just a few weeks ago...in fact I think it was three weeks ago...now again I said I think...I can confirm it at another time...that we received approval based off of our post summaries to turn over to the defense. The time of the day that we received it...I think it was the 18 May...that was the day we filed our 505(g)(2) for the other two damage assessment. That was the day we received the approval, and then the next two days defense started objecting into this procedure already litigated about disclosure of ex parte or not. At that point we needed to notify the FBI like every other entity that might entertain getting approval under 505(g)(2) that this is the procedure that might likely occur. So then they can weight that decision on how this works in handling information in the future and how they are going to disclose that. So, since then your Honor, we have had the approval to turn it over. It written in our motion. The defense even cited it before. 701(a)(6) says as soon as practical, as we cited in our motion. The moment this prosecution sees approval to turn over information unclassified, classified...as soon as possible turn it over to the defense...so once we get it, we start working on it. This is an example we didn't have a process in place we notified the defense and the Court in our filing...it's there, plus we have a process once we know how the Court wants to handle these...we are ready to go. And, we can keep being ready to go.

Judge Lind

Defense?

Defense (Coombs)

I guess if the Government is saying they found out about the FBI impact statement prior to or right at the time of their 18 May 2012 disclosure to this Court, then we have additional problems based upon what the Government said about the FBI in that disclosure to the Court, indicated that they had produced all classified and unclassified documents under 505(g)(1) that are relevant in this case with regards to the FBI. This goes back to the Government deciding on its own when its going to enlighten the Court or the defense putting certain information out there.

The Government became aware, apparently, from what he just said...the Government became aware of or had approval to release this information on 18 May. So, it still begs the question when they found out about it, but why are they not at the very least...they have to tell the defense, they have to be alerting the Court to the existence of this information. But they are representing to the Court on 18 May is that they reviewed everything that is favorable to the Accused and material to guilt and punishment, and they turn over everything. THAT is what they were representing on 18 May. If they were aware...obviously they were aware of this impact statement , they just didn't have authority to turn it over, but they should have stated in there, "Oh, by the way Ma'am...the FBI has an impact statement. We are currently working the process for approval to turn this over."

Judge Lind

Alright Government, what is your position on that?

Prosecution (Fein)

Your Honor, we are trying to find the [missed] schedule ?

Defense (Coombs)

18 May 2012. "Prosecution Disclosure to the Court."

Judge Lind

[Talking to the side. missed]

Prosecution (Fein)

Your, Honor. We just need...

Judge Lind

[Talking to the side. Reviewing a document.] Well it is the same...hold on.

OK. That is fine. Why don't you just take it and the Appellate [missed] itself...

Unknown

OK.

Judge Lind

[missed] please announce for the record what Appellate Exhibit it is.

Prosecution (Fein)

Yes, you Honor...your Honor I have just handed Appellate Exhibit 125. I am also holding...so your Honor, I was just handed Appellate Exhibit 125, which is "Prosecution's Disclosure to the Court" on 18 May 2012. I am also holding is this folder. It is a consistent application with what the Government has been saying. Um..the prosecution's response to supplemented defense motion to compel discovery no.2 date 31 May 2012, which is Appellate Exhibit 100. Now I am looking at page four from Appellate Exhibit 100, and page two from Appellate Exhibit 125.

Judge Lind

Alright.

Prosecution (Fein)

Your Honor, in both of these the focus is the Court's Order was to turn over forensic results and investigative files. This gets back to the issue that was already litigated last session. Investigative files have a specific terminology. We complied with the Court's order and we disclosed it. As noted, to ensure the Court was properly informed and the defense, in Appellate Exhibit 100 [May 31 2012] on page four, the prosecution even gave notice notification about law enforcement files, and then in the second paragraph we also put in a request that they search their entire record to disclose to the Court this information. It goes back to general requests and words do matter your Honor. The Government is not trying to play fast and loose with terminology. We are trying to execute specifically what the defense is requesting. It makes it much easier if we [missed].

And, only once in three referrals discovery, as I have stated before, in a mass request was under 701(a)(2) "any impact or damage from these organizations." We replied did not have adequate basis or legal basis...factual or legal basis. You are not entitled to it. It was never re-addressed. We were on notice for Brady purposes and started looking into it, we found it, we got approval, we notified on 18 May...um excuse me on 31 May in this filing. And, the prosecution is standing here today to saying we are ready to actually turn over the summary to the defense, ONCE the Court reviews it, and IF the Court authorizes the substitution. But IT [FBI damage assessment] is NOT an investigative file. And, although it is understandable that the FBI is the Federal Bureau of Investigation [FBI], is a very large organization...it is a very LARGE organization within the executive branch. The investigators are not directly tied to it, IN FACT we were told by FBI headquarters what the damage assessment...excuse me impact statement that the investigating office, the field office within the FBI had NO input or even contact with any aspect of the impact statement. It was a complete and separate function.

Unknown

I am returning the [missed your Honor] probably through 114.

Judge Lind

Government, from now on when you have these 505(g) requests, don't wait till next session. File them immediately...

Judge Lind

...and file redacted copies like we did last time.

Prosecution (Fein)

Yes, Ma'am.

Prosecution (Fein)

Yes, Ma'am.

Judge Lind

Is the Government going to use any evidence or any information from this FBI impact statement in their case in chief, rebuttal, or sentencing?

Prosecution (Fein)

Not as case in chief, your Honor...and more than likely there will be a witness that will testify about information that is contained within that assessment during the sentencing phase.

Judge Lind

Is that information being turned over to the defense?

Prosecution (Fein)

Yes, your Honor. It is going to be used...what we turn over to the defense.

Judge Lind

As far as...?

Prosecution (Fein)

Yes. you Honor.

Judge Lind

...this is an ongoing review...?

Prosecution (Fein)

Absolutely your Honor.

Judge Lind

Well the pieces of it that you are going to or intending on using...be identified for me when I am doing my 505(g)(2) with you.

Prosecution (Fein)

Your Honor, that was not the Government's intent because the issue is that...the Government does not intend to use the document ITSELF, but call an expert witness. And, if the expert witness uses it as the basis of opinion, that is how it would be discoverable. So, bottom line is, is that if there is information in it, then no that information will not be used by the Government in any regard on sentencing.

Judge Lind

So, is this expert witness going to be familiar with the entire assessment.

Prosecution (Fein)

Well, if they are your Honor, then they cannot testify cause that would be used as the basis of their opinion, and if we are not turning over and making it available to the defense then, no. Very long is, no, your Honor.

Judge Lind

OK. Now, I'm confused. We have an EXPERT witness that may make opinions based on a piece of this assessment?

Prosecution (Fein)

Yes, your Honor.

Judge Lind

OK. So, what you are telling me is that a piece of the assessment plus the Brady 701(a)(6) is what you are proposing in the substitutions?

Prosecution (Fein)

Yes, you Honor.

Judge Lind

And you are not going to identify for me that piece in there?

Prosecution (Fein)

Well, essentially your Honor it would be easier understanding because I am not particularly...this well...is that. Whatever expert witness is taking the stand on sentencing...would only be basing their opinion on that material and nothing else. And, if it is anything else then that information will be produced to the defense. But it will not be from that damage assessment unless it is provided to the defense. So, a damage assessment as you have seen from the Department of State, and you have seen probably from others you have reviewed...typically they are consolidated from multiple organizations, so it is conceivable that a certain witness could be from one organization testifying about that information that also is included in the consolidated document. It does not necessarily mean that that individual understood or knew information that was part of the consolidated document. But the bottom line your Honor, there will not be any expert witness testifying on sentencing that basis of their opinion will not be produced in some form to the defense.

Judge Lind

Alright...

Defense (Coombs)

Just a point of clarification. The Government not more than five minutes ago had indicated that they are not calling anyone from the FBI and that now apparently they are calling a sentencing witness from the FBI.

Judge Lind

Is this expert from the FBI?

Prosecution (Fein)

First, your Honor. The question was, do we intend to call an FBI Agent to the stand for case in chief or in sentencing. No, we do not. [See above, in fact the Judge has asked "Are you calling any FBI as witnesses?"]

Judge Lind

Alright. Let me broaden that. [annoyed] Do you intend to call anyone from the FBI that is familiar with either the investigation from the law enforcement end of it or the impact statement from the headquarters end of it?

Prosecution (Fein)

We will know for sure your Honor if it is an analyst or someone who is part of the impact assessment by 22 June [When the witness lists are due.]

Judge Lind

OK. That is the...

Prosecution (Fein)

That is the current scheduled date for the witness lists to be exchanged.

Judge Lind

Alright.

Prosecution (Fein)

Whatever that date is on our [missed] calendar, your Honor by the time we submit a witness list that is when that determination will be made.

Judge Lind

Yes.

Defense (Coombs)

The problem is the Court's question is wanting to know who they are going to be calling from the FBI to determine what portion of the FBI file may either fall under 701(a)(2) or be relevant and necessary for the purposes of 703. And so that is the basis for the Court's question if [missed] understands it correctly. So, the Government waited until 22 June or some other date to indicate which witnesses it intends to call from the FBI it intends to call from the FBI then basically frustrates the request of the defense to get a un-redacted copy of the law enforcement file.

Judge Lind

Well, now we are talking about the impact statement, not the law enforcement file I am understanding?

Prosecution (Fein)

That is what I thought so...

Judge Lind

What I would like in my 505(g)(2) reviews is to include, I don't care if you know the exact name...if it is Witness A or Witness B testified to the same thing, but what is the portion of...would you intend to disclose...that the Government intends to have a witness come in and testify about.

Prosecution (Fein)

Yes, your Honor.

Judge Lind

So, that way I can have a more intelligent opportunity to do a 505(g)(2) review in light of the criteria that I consider on that half of the point.

Prosecution (Fein)

Yes, your Honor.

Judge Lind

OK.

Prosecution (Fein)

Your, Honor. To answer your question about the size of the FBI file that would be germane to this Court Martial. It is 42,000 pages total, my estimation of 50 percent was not correct. So, 3,475 documents. And the number again that we produced to the defense, was 8, 741 pages, 636 different documents.

Judge Lind

Did the documents...

Prosecution (Fein)

I'm sorry. 636 documents, 8,741 pages.

Judge Lind

And how many big is the FBI file did you say?

Prosecution (Fein)

3, 475 [documents] your Honor, and 42,135 pages.

Judge Lind

So we are not nearly at 50 percent [missed]?

Prosecution (Fein)

No your Honor, I grossly underestimated.

Judge Lind

Anything else with respect to the FBI file?

Prosecution (Fein)

No, your Honor.

Judge Lind

OK. Let's move on to DSS.

Prosecution (Fein)

Your Honor. Your Honor, I admit the Government has...able to produce all files from DSS that relate to Private First Class Manning and WikiLeaks.

Judge Lind

What files exist?

Prosecution (Fein)

Your, Honor. There was a law enforcement file at the law enforcement organization and we asked for everything, they gave us everything that they claimed...the remit list said it was everything...and we have produced all of that to the defense in one production. On 6 December 2011, it was 79 pages, 26 documents.

Judge Lind

OK. Defense do you contest that?

Defense (Coombs)

Well again if the Government is representing to open Court that the Department of State's investigative file into the alleged leaks of 255,000 cables comprises of 79 pages then obviously we are not in a position to challenge that. It just, that doesn't strike the defense as being common sense. You would just that the investigative file would be larger than 79 pages.

Judge Lind

[To prosecution] OK. So will you ask them?

Prosecution (Fein)

We have ask, we've looked your Honor and that is what it is.

Judge Lind

And, do you consider it an aligned organization?

Prosecution (Fein)

A joint...yes, your Honor. DSS.

Judge Lind

Alright.

Prosecution (Fein)

Your Honor. May we have a moment?

And just for clarity purposes your Honor, we are talking about the DSS "investigative file" so. The rest of the Department of State is the law enforcement arm [Diplomatic Security Services at the Department of State (DSS)]...

Judge Lind

[annoyed] Does the law enforcement arm of the Department of State contain any other file other than the law enforcement investigative file pertaining to Pfc. Manning?

Prosecution (Fein)

Not...no, your Honor. Not an "investigative file". They could have other information that we have not reviewed, but not part of the investigative file. We have reviewed the entire investigative file. The folder that says, "WikiLeaks" or "Manning". However, they categorize it and organize it, we have all the documents, we produced those.

Judge Lind

Alright. The Department of State as a whole?

Prosecution (Fein)

Your Honor, the Government maintains that the Department of State is not part of the Department of Defense therefore not within military authorities, so the 701(a)(2) does not apply.

Judge Lind

Do you consider them aligned?

Prosecution (Fein)

Yes, your Honor we do consider them closely aligned for William's purposes.

Judge Lind

OK.

Prosecution (Fein)

As far as knowledge an access, your Honor. The prosecution in meetings gains knowledge. The prosecution does not have access, except for whatever information we have been given, and we have not been able to get, although we have been coordinating to review their files and have been accumulating them. But as for the filing that you have received from the Government...the enclosure to our response. In the Government's response to the defense's supplement to the defenses' motion to compel discovery 2, provided a almost PRIMER on the organization and function of the Department of State...a very large organization, and they are currently accumulating their files for us to review for Brady material 701(a)(6).

Judge Lind

OK. Any position to tell me when you asked them to do that?

Prosecution (Fein)

We would argue your Honor, that that should be presented during the [missed]...

Judge Lind

Alright. That is fine.

Prosecution (Fein)

...the due diligence argument.

Your Honor, so the Department of State as a whole...that is the Government's position...there are specific...now in this last motion to compel...there are some specific information and entities that we could also discuss.

Judge Lind

OK.

Prosecution (Fein)

The Government does agree that it has made specific requests when it comes to the categories of subjects, the litigation team, the WikiLeaks Working Group, the Chiefs of Mission cables [Cables sent in to DoS re impact/damage review], and certain Department of State reporting to Congress as evidenced by the defenses submission of Ambassador Kennedy's testimony of March 2011. That information is still not within military authorities. This prosecution doesn't have the information doesn't have access to it for any purpose. The Department of State does intend to provide that material to the prosecution to review for Brady material and as we have noted before, the Department of State is providing witnesses to the defense tomorrow to explain what does and what does not exist.

Judge Lind

Alright. Does the Government intend to use any evidence from any of these...you have already turned over the one piece of evidence, but the other evidence that you have already been reviewing, does the Government using any of that in its case in chief, rebuttal, or aggravation?

Prosecution (Fein)

Not our case and chief, your Honor, because we haven't seen any information...so at this point I couldn't say we are going to be using any of it in aggravation...sentencing. We don't know, your Honor, because we have not been able to review it.

Judge Lind

So at this point do you know if you are calling any witnesses from the Department of State who are familiar with these documents?

Prosecution (Fein)

We more than likely are, your Honor and if we do call them and they are testifying to any subjects on that matter and they use it as basis. If they qualify as an expert, and they use as basis of opinion then it will be described...and it will be produced in some form to the defense.

Judge Lind

Alright. Anything further with the Department of State from either side?

Defense (Coombs)

No Ma'am, other than what we highlighted as the due diligence requirements for these other sub organizations. Nothing in addition to that.

Judge Lind

Alright. Department of Justice.

Prosecution (Fein)

Your Honor. The Department of Justice again, not...it's a separate department...not Department of Defense, does not fall within military authorities.

Judge Lind

Is this where you draw the line for William's purposes?

Prosecution (Fein)

We do your Honor. And we define as we have done in our five multiple filings for the purposes of clarity for the defense and the Court...the Department of Justice to be "Main" Justice, the headquarters, the immediate subordinate organizations in the headquarters, and the US Attorneys offices, NOT the subordinate agencies like the FBI and others for this purpose.

We have produced any...any...there is no damage assessments. We asked. There aren't any.

Judge Lind

What files are there...concerning Pfc. Manning?

Prosecution (Fein)

The only files there would be is prosecutorial files, your Honor, and Grand Jury testimony, which we have produced the Brady information from the Grand Jury testimony.

Judge Lind

Alright. So, no investigative files, no damage assessment, no...?

Prosecution (Fein)

No, your Honor. That is left to the FBI as we have been told by the Department of Justice.

Judge Lind

So there is nothing...you were telling me there is nothing you are searching in the Department of Justice?

Prosecution (Fein)

We have been told...that is correct your Honor....we have been told that anything the Department of Justice would have that would fall under the criteria we submitted is in the FBI file, except the Grand Jury...we did that separately.

Judge Lind

OK. Defense, anything?

Prosecution (Fein)

Again we are in the position of taking the Government's representations. So, if the Department of Justice has nothing in addition to the Grand Jury, then we just simply ask that you take a look at least at the unclassified version of the Grand Jury testimony that we presented to show you the amount of information the Government has chosen to share with the defense, and now it is really essentially useless when you look at the amount of redactions.

Judge Lind

Now, we have already addressed the major issues ok.

CIA.

Prosecution (Fein)

Your Honor the Government first argued that they are not...do not fall under military authority...an intelligence agency therefor 701(a)(2) does not apply. We do consider them closely aligned for Williams purposes. We have started and continue to review their files for Brady material. We have not completed that. It is an ongoing process as well. There damage assessment or report has been produced to the Court and subject currently to Court's order or future order.

Judge Lind

Are there other files that are germane?

Prosecution (Fein)

There are investigative files which we recently...or we previously spoke about...and those forensic results or investigative files have been produced to the defense.

Judge Lind

So what is left for the review?

Prosecution (Fein)

Excuse me your Honor. The Brady material of that file has been produced.

Your Honor. The only thing left to review are other documents that have been accumulated pursuant...that would fall under the similar requests that we have highlighted as an example for the Court.

Judge Lind

Will there be any witnesses from this entity that will be testifying in the Government's case in chief, rebuttal, or sentencing?

Prosecution (Fein)

Yes your Honor on both...and the underlying information that they would be testifying to has been or will be provided to the defense depending if it is on merits or it is on sentencing.

Judge Lind

Will any of them be testifying about what I just reviewed?

Prosecution (Fein)

No, your Honor.

Judge Lind

Anything from the defense?

Defense (Coombs)

Just based upon the Government's statements that they are just now reviewing certain documentation...the CIA...why it hasn't been done before, I would go back to due diligence. And, the fact that there are certain documents apparently that these whatever they call them the CIA will be testifying to that have not yet been produced to the defense. So, unless it is this information that they are seeking some sort of protective order for under 505(g)(2) or privileges have been invoke, why hasn't this information been turned over to the defense at this time.

Judge Lind

Mr. Fein?

Prosecution (Fein)

Absolutely, your Honor. First to clarify, I did not...the Government did not say right now that we are just starting to review documents. [See above Fein said, "We have started and continue to review their files for Brady material."] We have been and we continue to review documents. Its a massive amount of documents your honor. It takes time. Um...especially based of the charged offenses. Um...the first the merits. The defense has had the evidence that the witnesses on the merits will be testifying about since about 8 November 2011 when we handed over all of the majority of the classified evidence and will continue to do so in the case. So any information that would come from the CIA in whatever form and whatever...they have had in their possession for them and any of their experts to review. So really my answer was focused on sentencing any experts and any experts that are qualified who rely on any information...that information just like I have spoken about the others will be provided to the defense, IF they are ready to RELY on documentation. And, the documents that you have reviewed your Honor, although contain...your Honor, in reference to your documents, the documents that you have reviewed...any information that could be aggravating, we do not intend to use.

Judge Lind

So, this witness that you are going to call on sentencing...from this organization is not basing his or her testimony on anything that I review?

Prosecution (Fein)

That is absolutely correct, your Honor.

Judge Lind

Yes?

Defense (Coombs)

Again it seems as if Major Fein is saying the witness is going to be testifying on the basis of that witness' testimony will be provided to the defense. So the question is, IS the basis of that expert testimony information that they have already provided, or is it somehow some other information that they are going to be providing to the defense? And, then if the answer is the latter, there is some other information they are going to be providing to the defense, when the time for providing that is NOW. This is the discovery stage. So, that is the issue we need clarification on.

Judge Lind

Well I am looking here, as the Government has stated. Government the witness list exchange is scheduled for the 22 of June is that correct?

Prosecution (Fein)

Yes. It is correctly scheduled your Honor.

Judge Lind

There may be a discrepancy here on when the Government witnesses come out...are disclosed, and when the defense witnesses are disclosed base on the discovery timelines that we have here. Is the Government...I will give you some time to think about this...I would like to continue on with the 22 June disclosure of the Government's witnesses so we have all these issues flushed out as I am doing these reviews [505(g)(2) reviews for classified discovery info] along the way...rather than doing a second review 505(g)(2) reviews for classified discovery info] prior to the trial when these theories are developed, so... I plan to keep the Government on track on 22 June.

Prosecution (Fein)

Well your Honor, also I think what could help the Court for this is..really the Government offers the real question to be answered is would we not intend to use stops with what we intend to use. Cause if we intend to use something the rules us require to give access and hand over the defense. So, what would probably help more...

Judge Lind

The Court will want to review is that I have to look at the document as a WHOLE and decide if the snippet that you intend to use is sufficient to allow the defense an opportunity to cross examine the witness...

Prosecution (Fein)

Yes, your Honor.

Judge Lind

...and all that kind of thing. And I can't do that if I don't know what witnesses that the Government going to introduce.

Prosecution (Fein)

Yes, your Honor. Um...well. What the Government is confident on is there isn't really that much that is not going to be approved for use. Um..and our filing...whatever it is the Court decides on how we notify the Court on the type of aggravation that we are going to be allowed to use...versus all the aggravation we are not going to be allowed to use about the impact of this case. Um...on the national security. I think when we provide that to the Court, it will be very clear cause there are very specific categories, and very specific sources of information that are so sensitive that they can't be used, and that is what we will likely propose that we provide you in some form...once we discuss it with the Court on the record...whenever that will be. And, discuss it with the equity holders who own the information, given authority.

Judge Lind

OK. ODNI [Office of the Director of National Intelligence]

Prosecution (Fein)

Yes, your Honor. The Government considers first ODNI [Office of the Director of National Intelligence] is not part of the Department of Defense, military authorities under 701(a)(2). We do consider ODNI [Office of the Director of National Intelligence] a closely aligned organization, because they have provided information that the defense have in their possession since on about 8 November 2011 that they intend to use on their case in chief. So we consider them closely aligned. ODNI [Office of the Director of National Intelligence] is a parent organization of multiple independent organizations, such as ONCIX [Office of the National Counterintelligence Executive]. So, as I have noted in our filings we just like DOJ [Department of Justice], consider ODNI [Office of the Director of National Intelligence] "Main" ODNI [Office of the Director of National Intelligence], and not its subordinate organizations. So, we have started and are almost finished, reviewing ODNI's [Office of the Director of National Intelligence] for any Brady material.

Judge Lind

Alright, you talk to me about whatever you are using in your case in chief, has already been given to the defense?

Prosecution (Fein)

Yes, your Honor.

Judge Lind

So, what other files are you reviewing for Brady material?

Prosecution (Fein)

Under our general due diligence requirements your Honor, based off of the criteria we have given you as an example of this massive population of possible documents just to make sure that there is nothing that could be Brady material.

Judge Lind

Are there specified types of files that you reviewed? ...

Prosecution (Fein)

Ma'am...

Judge Lind

Or do you just walk in and say let me review all your files?...

Prosecution (Fein)

Ma'am.

Judge Lind

What are you targeting?

Prosecution (Fein)

Ma'am the categories that we are targeting are in that example that we...I briefed earlier um...it is specific information concerning Private First Class Manning, identifying information such as usernames and IP addresses, any type of impact information or damage, and of course if it is mitigating it is discoverable.

Judge Lind

[To defense.] Yes?

Defense (Coombs)

With regards to ODNI [Office of the Director of National Intelligence] and then...I would like to have the Government respond to the first question on whether or not ODNI [Office of the Director of National Intelligence] has any damage assessment, investigation, working paper, however you want to define that, similar to ONCIX [Office of the National Counterintelligence Executive].

Judge Lind

Not ONCIX [Office of the National Counterintelligence Executive] one a separate one?

Defense (Coombs)

Correct, Ma'am.

Judge Lind

Can you answer the...

Prosecution (Fein)

Absolutely, your Honor...

Judge Lind

...question?

Prosecution (Fein)

...it's actually on page [off to the side...] What is it? [Back to Judge] Your Honor, the prosecution's response to the defense motion to compel discover no. 2 dated 24 May 2012 compel exhibit 97...

Judge Lind

OK.

Prosecution (Fein)

Bottom of page 12, footnote one. ODNI [Office of the Director of National Intelligence] does not maintain investigative files and is only closely aligned under Williams and contribute evidence for the merits. They do not have a centralized file. This is part of what I described before a due diligence search that we are doing, because they have provided evidence that we intend to use on the merits. And, we have asked them based off of that criteria to accumulate some records for us to look for Brady material.

Judge Lind

Do they have a damage assessment?

Prosecution (Fein)

No, they do not have a damage assessment your Honor.

Judge Lind

OK.

Prosecution (Fein)

...Or law enforcement files or forensic results.

Judge Lind

[To defense] Are you sure you made your question from some Brady material as part of your suit?

Defense (Coombs)

Yes, Ma'am. The 12 pages of Brady information...some of that is directly responsive to ONCIX [Office of the National Counterintelligence Executive] and other information is directly responsive to ODNI [Office of the Director of National Intelligence]. So, it appears...

Judge Lind

Can you point that to me in the [missed]..?

Defense (Coombs)

That should be Attachment A to your motion to compel. And, as well as that, with regards to the motion to dismiss...it should be attached to that.

Judge Lind

The motion to compel [missed] ?

Defense (Coombs)

I believe so, Ma'am. Yes. And then also...

Judge Lind

OK. I have...oh I see...no...I have Attachment A as 17 April 2011...I did see it in one of these...

Defense (Coombs)

It should be maybe 31...

Unknown

I have Appellate Exhibit 31.

Judge Lind

Why don't we do this...we been at this for quite some time...why don't we take a brief about ten minute recess...is that good for everybody? Does anyone want longer than ten minutes or is ten minutes fine?

Defense (Coombs)

10 minutes is fine with the defense.

Prosecution (Fein)

[Affirmative]

Judge Lind

Alright, Court is in recess until 25 minutes to two.

ALL RISE.

Judge Lind

Please be seated. This Article 39(a) Session is called to order. Let the record reflect all parties are present when the Court last recessed. We just broke at 2:40 today. Alright. Are we finished with ODNI [Office of the Director of National Intelligence]?

Defense (Coombs)

Just the Appellate Exhibit 43, Ma'am was the Appellate Exhibit I wanted you to take a look at...this was the two pages of Brady which we received [missed] highlighted areas was one of the memorandums...and it looks to me to be addressed to ODNI [Office of the Director of National Intelligence] and there maybe, because ONCIX [Office of the National Counterintelligence Executive] is a sub organization under ODNI [Office of the Director of National Intelligence] and maybe also addressed to ONCIX [Office of the National Counterintelligence Executive]...so that was the reason the defense believes that ODNI [Office of the Director of National Intelligence] may have some things responsive to our request.

Judge Lind

Alright. Mr. Fein are you sure you are on the same enclosure to Appellate Exhibit 43 that I am?

Prosecution (Fein)

Yes, your Honor. I have looked at it.

Judge Lind

OK, is this going back to ONCIX [Office of the National Counterintelligence Executive] as a sub-entity of ODNI [Office of the Director of National Intelligence]...

Prosecution (Fein)

That is correct. So, it looks like that Robert Bryant address had ODNI [Office of the Director of National Intelligence] on it and then ONCIX [Office of the National Counterintelligence Executive]. I assume that is the proper address and convention for whoever sent that letter. But Robert Bryant was the ONCIX [Office of the National Counterintelligence Executive] presidential appointee, the National Counterintelligence Executive. His office is ONCIX [Office of the National Counterintelligence Executive].

Judge Lind

So there is one damage assessment and it is ONCIX [Office of the National Counterintelligence Executive]?

Prosecution (Fein)

That is correct your Honor.

Judge Lind

OK.

Prosecution (Fein)

ODNI [Office of the Director of National Intelligence] does not have any damage assessment or any record that would reflect that. It is ONCIX [Office of the National Counterintelligence Executive].

Defense (Coombs)

And, that was the reason why defense included that as a possibility.

Judge Lind

We move to ONCIX [Office of the National Counterintelligence Executive].

Prosecution (Fein)

Yes, your Honor.

Judge Lind

Let me start off by asking you a question. I ruled on the 23 of March that ONCIX [Office of the National Counterintelligence Executive] was an aligned entity, the Government in the response, I don't remember which one said you disagree with me but you are not challenging that ruling. If ODNI [Office of the Director of National Intelligence] is a closely aligned, and ONCIX [Office of the National Counterintelligence Executive] is a sub-entity...I guess I am confused as to how they are not closely aligned?

Prosecution (Fein)

Well, your Honor..uh..the Government has tried in all of its filings to explain to the Court and the defense that it would place the Government probably in an untenable position...to assume that the parent organization of a department or agency that has subordinate departments and agencies are fall or...are almost imputed with our determination of it being closely aligned or not. So we, as the prosecutors, have assessed that facts of our relationship with them, information sharing with them or whether we are using charge documents that exist or not, and all these other factors that make that determination whether they are closely aligned.

So just like the Department of Justice, FBI and all the other organizations under the Department of Justice, we define ODNI [Office of the Director of National Intelligence] versus ONCIX [Office of the National Counterintelligence Executive] . ODNI [Office of the Director of National Intelligence] has provided a classification review that the defense has had, but that is located in Appellate Exhibit 97. Or, we referenced that in Appellate Exhibit 97, page 8, footnote 11 including the bates numbers of the two documents. So, because ODNI [Office of the Director of National Intelligence] has provided classification review and authority for us to use evidence on merits, they consider ODNI [Office of the Director of National Intelligence] a closely aligned organization for William's purposes....for us to do our due diligence, to search their department...their files...their information to determine if there is any Brady material...versus ONCIX [Office of the National Counterintelligence Executive] who we have no relationship, other than we had an ethical obligation from the beginning, and then based off the discovery request with the defense additionally a Williams bucket three requirement to obtain that information. But, NOT...

Judge Lind

There isn't a damage assessment for ONCIX [Office of the National Counterintelligence Executive] is that right?

Prosecution (Fein)

That is what we have been told your Honor, based off a filing, we now know. Correct.

Judge Lind

OK. Really so at the end of the day does it matter if they are rolling or not if we are going to do the same review?

Prosecution (Fein)

Well, they...they...no your Honor, we are doing a Brady review. The only reason we are defining in a particular area on what obligations we have is because it is whether it is based off a defense's request or not, or whether we are basing it off our ethical obligations. The only reason we haven't defined this, is only because this 701(a)(2) argument and the way it has morphed that is why...at the end of the day your Honor, your question...if there is Brady material we are searching for it...

Judge Lind

So for ONCIX [Office of the National Counterintelligence Executive] you...other than going and asking them for this damage assessment for Brady material, what other relationship do you have with them?

Prosecution (Fein)

um...

Judge Lind

[Annoyed] Other than asking them to review this damage assessment what other relationships have you had with them, have they provided any evidence..?

Prosecution (Fein)

None. No other relationship your Honor.

Judge Lind

Is there any other...are there any additional files that were going to review when we do the damage assessment?

Prosecution (Fein)

We have submitted the same form of a request that we have discussed already on the record, a more macro level request than the other documents...but it should only be those documents that lead up to the damage assessment that is believed to be there, so...

Judge Lind

So I understand this correctly, you haven't reviewed it yet..

Prosecution (Fein)

That is correct your Honor.

Judge Lind

So, at this point are you in a position to tell me whether you are going to use any evidence at trial or call any witnesses pertaining to it?

Prosecution (Fein)

No your Honor. We don't even know...other than what information might from other independent organizations have fed into it..based on what defense has already referenced, the 28 different...the more than 20 different damage assessments, impact statements, or any other variation of damage that has occurred that we produced to the defense as we get approval and turn them over...other than THAT...because as the defense pointed out...most of those were done pursuant to the request by ONCIX [Office of the National Counterintelligence Executive] . There is nothing else that we know of.

Judge Lind

I guess I am confused. If you don't enough of the review of that assessment to determine where the Brady material, how did you not review the rest of it?

Prosecution (Fein)

Your Honor. I apologize. That is not what I intended to relate. The ONCIX [Office of the National Counterintelligence Executive] as explained in the Government's filing to explain the difference between assessments and investigations. The ONCIX [Office of the National Counterintelligence Executive] is chartered to do a national level national counterintelligence review, damage assessment, at the national level. That is what there ah...the Counter Espionage Act...excuse me...Counter Intelligence Act set up. We briefed that in our filing. That is their charter. They do a Government [missed]. They received inputs from different Government organizations. What the defense has already referenced, and what we produced to the defense are different entities that submitted their information to ONCIX [Office of the National Counterintelligence Executive]. We have not reviewed any document that belongs to ONCIX [Office of the National Counterintelligence Executive]. Here. What we have done is we have gone to the originator, the owner of the information that was submitted to ONCIX [Office of the National Counterintelligence Executive], the original entities to request approval to review their material and if discoverable turn it over to the defense. And, that is what the defense has been receiving. Um...specifically...the ultimate source of these documents is not ONCIX [Office of the National Counterintelligence Executive]. The source of the documents that the defense has received in discovery are the actual agencies. So, it was mentioned earlier on the record today that the Department of Agriculture or any of the executive departments that the defense has received those organization independently did their own, and submitted them. We have gone to those agencies for efficiency purposes, we have acquired the documents, or we are attempting to finalize acquiring all the documents, and then once we obtain them or review them, get approval to turn them over, if they are discoverable, and then give them to the defense immediately, once we get that approval.

Judge Lind

Why did you tell me back on the 21 of March that ONCIX [Office of the National Counterintelligence Executive] had no damage assessment? Those aren't the exact words that you used, but...

Prosecution (Fein)

Correct your Honor. You are right. Frankly, because we do not have access or even knowledge absent us asking the question and receiving it to these files, because of the nature of this type of assessment. They [defense I assume] ask the questions, they stop at the defense discovery requests...specifically your Honor, if it may please the Court, to kind of lay out a time line. This is somewhat reflected in the defense's motion from Saturday. But 16 February 2012, was the defense's motion to compel discovery, their first motion. On 28 February 2012, the first 802 telephonic conference...after 16 February 2012 motion to compel, we approached at some point, I don't have that date ONCIX [Office of the National Counterintelligence Executive] or ODNI [Office of the Director of National Intelligence] and said, "You know, we are required to produce the following...here is an example of what it is. What do you have?" And then the response of course given was that "ONCIX [Office of the National Counterintelligence Executive] has not completed a damage assessment. To date they have not produced any interim or final damage assessment in this matter." That is what they gave us and told us.

Judge Lind

Did they give that orally or what?

Prosecution (Fein)

Orally, your Honor. And so, by us writing that down, and inquiring this all you have, is this what it is? This is the response that we received. That is ultimately what we..fast forward at motions hearing on the record, and for the 802 conference after the motions hearing, and on the email inquiry on 21 March, when asked, as you will notice from the Court's motion to compel discovery dated 23 March 2012...the Court documented the email questions...and those email questions were, "Does the damage assessment and such exist with ODNI [Office of the Director of National Intelligence]...or excuse me...ONCIX [Office of the National Counterintelligence Executive] ?" And we responded in email, "ONCIX [Office of the National Counterintelligence Executive] has not produced any interim or final damage assessment" to that.

We asked them the questions, we don't have any other access to the files. They answered it. So at that point we relayed that to the Court. We relayed it to the defense. The Court ruled.

Judge Lind

Is it...at that time is it the Government's belief that they did have it?

Prosecution (Fein)

Correct your Honor. It was our belief at that point that they were compiling these other assessments that we knew about because we started reaching out, once they told us about...to go get those. But, then they had no other documentation that would be subject to discovery based off this response. So, yes we did know that their individual [missed] organizations were submitting them, and that is why we went out to those orbit, those independent organizations, to get them approval and disclose them.

Judge Lind

You understand that the purpose of the questions from the Court is to discover what is out there?

Prosecution (Fein)

Yes, your Honor. And, the prosecution did exactly that your, Honor. Even after the email from the Court, prosecution reached out to ODNI [Office of the Director of National Intelligence] and ONCIX [Office of the National Counterintelligence Executive] to ask the question again, and this was the response that we received. And it goes back to the military authorities line of inquiry. The military prosecutor and a Department of Justice prosecutor doesn't necessarily have access to walk in any government building and search the files. We ask the question. We give them the relevant cases...[missed]. We show them the discovery requests and any other order, and then they give us the answer or give us access, and we go search for these. In this case, they gave us the answer, and we relayed that to the Court.

Judge Lind

But you knew that other entities in your request were submitting documents to them?

Prosecution (Fein)

Yes, your Honor. We went after those documents.

Judge Lind

Did you ask any follow up questions, like why are you collecting these documents?

Prosecution (Fein)

Yes, your Honor. We did. And, we were told that they were compiling documents to do a damage assessment. We asked, "What is the state of the damage assessment so we can relay it to the Court?" And this is the exact wording we were given.

And so, going forward your Honor. After that ruling and then after we re-litigated the Department of State. Then he sent that and said, "Listen"...essentially as we have outlined in our memo to ODNI [Office of the Director of National Intelligence] on behalf of ONCIX [Office of the National Counterintelligence Executive] and in the response back...on 11 May the Court ruled that even a "draft damage assessment" from the Department of State is discoverable in that form. We re-litigated that, "Does this information apply to y'all based off of what you had previously told us?" And, at that point they said we need to have a meeting. We had the meeting within a week, and then within a week we figured out the way forward as a prosecution, submitted the request and then as you can tell from the memos in Court and defense [missed].

If we had access we could we could review the files, look at them, and go from their your Honor.

Judge Lind

You mean now or then?

Prosecution (Fein)

Well, today we still don't have access, you Honor. Although, we are beginning to access pursuant to memos we received. But, then if we had access we could have inspected the files, and made a first hand account to the Court.

Judge Lind

Alright. Defense, anything else? I know you set forth in your original discussion.

Defense (Coombs)

Just one request Ma'am. With regards to what the Government is representing, as far as their question that they had asked and the answer they respond, and what they conveyed to the Court. It is clear that they never conveyed that ONCIX [Office of the National Counterintelligence Executive] was collecting something, and putting something together or what was said, "Submit whatever you got." Take a look at page four of the damage assessment that defense has recently identified from the Department of State. Look in the middle of page four, you will clearly say why the Government can clearly not say what they just said. They were on [missed] that ONCIX [Office of the National Counterintelligence Executive] was creating a damage assessment. So, not only look at that page, but also the date of the Department of State's damage assessment, and that will clearly tell the Court what information the Government should have been aware of. Cause at the end of the day it is the Government asking itself what does it have?

Judge Lind

[Long emphatic] Well...Mr. Coombs, even in Federal cases don't say that the one entity has knowledge of the entire Government's files.

Defense (Coombs)

No. And I wouldn't say that. But it is the Government asking itself this information, so unless they were cryptic with Major Fein to where again the follow up question that you asked, "Like, why are bunting this...?" you know, "Doing something with it?" "Well we are putting together a damage assessment?" Well, maybe that would have been a good piece of information for Major Fein to share with the Court that ONCIX [Office of the National Counterintelligence Executive] is putting together a damage assessment. They don't believe that they have it right now, in a particular format that is finalized or interim or whatever. But at least to share with the Court that ONCIX [Office of the National Counterintelligence Executive] is putting together a damage assessment. You look at the reference that there is an assessment, look at you will see why they should have been...why you didn't put that notice at their doorstep.

Judge Lind

Alright, Mr. Fein, when did you first have access to the Department of State damage assessment?

Prosecution (Fein)

Your Honor, we received access to the Department of State damage assessment within I think it was a day or two of giving it to the Court, prior to the last...prior to the reconsideration motion. Um...then will have to [missed. MUMBLING]...uh..I have it right here. We will look at page four. Um..but the Government never maintained that we didn't know that they weren't doing it. That is their entire purpose...ONCIX [Office of the National Counterintelligence Executive]'s. We inquired into what the document they had that we could report on whether they have a draft damage assessment, and they reported back, again, "Today ONCIX [Office of the National Counterintelligence Executive] is not producing any interim or final damage assessment," and it is adamant when we asked them the question. So, the Government's positions isn't that we didn't know that they weren't in the process of creating a damage assessment, but we were unaware if they had any other documentation created that would even qualify as a "draft". Once we received the Court's order on 11 May, we had them re-look and re-assess, and that is when we started this process.

Judge Lind

So the Government's position [missed] of theirs, you saw a distinction between the Department of State, which you told me Department of State had not completed a damage assessment...and I guess what is the difference between what the Department of State's position was at that time and what ONCIX's [Office of the National Counterintelligence Executive] was at that time?

Prosecution (Fein)

Your Honor, to be honest, the Government doesn't necessarily know. We ask the question. This is what we are given and we relayed it to the Court. To us, there is a difference between a "draft" and an "interim". A "draft" is an ongoing document. An "interim" is something produced as a snapshot in time to immortalize that information. So, we did have discussion with both entities on what the differences could be, but at the end of the day we asked, "Do you have any documentation or do you have a damage assessment and if not what do you have?" And, these are the responses you were given, and that we relayed to the Court. So, again...it...we have never been able...we don't know they weren't doing it. In fact, I think it was publicly announced, and the defense has notified the Court of that in one of the very first filings, it was publicly announced that they were doing one, but to the extent of what they did...the prosecution has no clue, we had to rely on what we were told. And, as we remedied it, the moment we realized that...we attempted to remedy it once we realized and asked them to reassess their position based off of the Court's order on 11 May. But they had to come back to us and say, 'Yes. What we read actually means that we have something like that. Now, not necessarily what we told you before. Of course, everything is changing as time moves on." So, once they told us, we then went through the procedures and we are here.

Judge Lind

OK. Anything else with respect to ONCIX [Office of the National Counterintelligence Executive]?

Prosecution (Fein)

No your Honor.

Defense (Coombs)

Your Honor, just to ask you to review the memo from Major Fein to ONCIX [Office of the National Counterintelligence Executive]. That doesn't entirely coincide with the way the text from ONCIX [Office of the National Counterintelligence Executive]...

Judge Lind

What memo are you talking about?

Defense (Coombs)

The memorandum dated 24 May 2012 is part of the prosecution's notice on the ONCIX [Office of the National Counterintelligence Executive] damage assessment. And, reading that memorandum it is clear that Major Fein is basically making the determination that based upon the Court's ruling that we now need to disclosed that ONCIX [Office of the National Counterintelligence Executive] has a damage assessment. And this is in response to the Court's 11 May determination that "draft damage assessments are not speculative regarding their nature and are still subject to discovery." So when you look at that memorandum, it is the prosecution at that point...and let's even for argument sake say they found out maybe a week before this or what not...that this ONCIX [Office of the National Counterintelligence Executive] has something. They still sat on this for three weeks, without even notifying the Court anything about the presence ONCIX [Office of the National Counterintelligence Executive] damage assessment. So, when you look at the tenor of this email...it's basically based upon the Court's ruling on 11 May now we need to come clean on ONCIX [Office of the National Counterintelligence Executive] and we need you to start reviewing. They write back and say, "OK. We will have this done by 3 July." And, Major Fein and ONCIX [Office of the National Counterintelligence Executive] make the determination 3 August is a mighty fine day to produce this.

Judge Lind

Right. Isn't that the date on the Court calendar?

Defense (Coombs)

It may be Ma'am, but that is on the Court calendar for information that the Court was aware of. It wasn't for the damage assessment for ONCIX [Office of the National Counterintelligence Executive]. So, the Court made that ruling based upon information that the Court was aware of 23 March determination. So, at this point, what the Government's obligation should have been was to immediately alert the Court and defense that, "You know what...even though our wording was that they hadn't done interim or draft damage assessment. There is a damage assessment." And, alert the Court to that and then the Court then the Court can make the determination as to the date and time that that needs to be produced.

But, this seems to be again a play on the words. I mean you have to ask the exact right question in order to get a response, and it is clear what the Court was asking for when it made its questions on 21 March. And, so the answer...and the upfront answer, especially when the Government now is saying that they always knew there was a damage assessment ongoing, would be to tell the Court that fact. To say, "There is a damage assessment ongoing, and we believe that it's not quite an interim, or its not quite a completed damage assessment or its not quite this." But to tell you that. And, then you can make the determination back in March when you were considering the Department of State, whether you could even be done. Not to where now we are becoming aware of it here, and at the very latest, I know the Government's schedule will be 3 August, at the very earliest it may be with the Court...

Judge Lind

Well, Mr. Coombs considering with the fact that the...[missed] efficiency perspective, I don't see any point in examining a draft damage assessment when their is going to be a complete one in the beginning of July. Um..

Defense (Coombs)

See that whole analysis of knowing that there is a draft one should have been told to the Court at that time. And then if we find out that their is a draft one and they are actually they are going to complete it in July, well ok. We can look at the draft and then look at the completed one, because it may be that the completed one is just checking the i's and the t's, as opposed of actual substantive changes. But, the more important thing is that we would have been aware of it at that time. And, then could have dealt with it appropriately. At this point, again that pushes the can further down the road, when we should have been dealing with this early on.

Judge Lind

Alright. I understand your point.

Prosecution (Fein)

Your Honor. If I may clarify exactly what I just said, and more importantly, what the defense has conveniently not referenced in the motion itself. The referencing the letter that was sent to ODNI [Office of the Director of National Intelligence] from the prosecution team, signed by me, but in the filing, what I just testified...I'm sorry proffered to the Court, the filing itself, if you reference paragraph two, I will read it for the record, "On 11 May the Court held the Department of State's draft damage assessment was subject to the Court's previous ruling, see Appellate Exhibit..." so and so forth, "In response the prosecution shared that ruling with ODNI [Office of the Director of National Intelligence] and subsequently met with their attorneys on 17 May 2012". So within six days of sharing we met with them in a meeting to discuss the issue of draft documents. "During that meeting ODNI [Office of the Director of National Intelligence] notified the prosecution on 17 May that ONCIX [Office of the National Counterintelligence Executive] has compiled a draft damage assessment which is likely similar to form to the DOS assessment, and thus would have fallen under the 11 May ruling." It was from that meeting on 17 May that the prosecution did go back to our offices, we met at the exact same...at first there is a week in there, 18 May was a filing date, a weekend, and then the next part of the week, we figured out the best way forward to notify the Court and figure out what is going on with ODNI [Office of the Director of National Intelligence]. We then submitted a letter to ODNI [Office of the Director of National Intelligence], they responded, we notified the Court. That is what we outlined in the written version and what I described earlier. That is the first point, you Honor.

The second point is we even recognize in our letter to ODNI [Office of the Director of National Intelligence] that this is of course up to the military judge. Although we said, either we recommend...we anticipate in some of our letter 3 August, and we ask that you have it ready by 3 August is based off the Court's calendar, and the very on page two...at the very last paragraph we even state to put them on notice as always, "Information requirements stated about are subject to change based off future Court rulings and order." So, we even put them on notice based off of us notifying the Court and defense. So, if the Court was to rule sooner than 3 August, then they are going to need to respond, or we are going to need to respond based off their input.

And then the final point your Honor, and this is only for a point of clarification. In the letter from ODNI [Office of the Director of National Intelligence], they said that they anticipate having it done by...the final by July 13, but if not, then the most recent one without comment will be made available to make the 3 August deadline.

So, they are endeavoring to have it completed for that review. But, if they don't they will make it available by then or whatever date the Court sets.

Judge Lind

Alright.

Defense (Coombs)

Now again based upon Major Fein's representation, it appears that he is saying that 17 May is the first time the Government became aware of anything from ONCIX [Office of the National Counterintelligence Executive]. Previously he stated that they knew that that was the mission of ONCIX [Office of the National Counterintelligence Executive] and that they knew that they were always creating a damage assessment. So I don't know which one that is: Whether they always knew that or they just found that out on 17 May? If that fact were true: the 17 May revelation were true then you would expect to see that somewhere within the 24 May memo to ONCIX [Office of the National Counterintelligence Executive] saying, "Hey, we just found out you have a draft damage assessment. We need to take a look at that." 17 May is never referenced there. So, again this goes back to candor to the Court. If Major Fein is saying they were always aware that ONCIX [Office of the National Counterintelligence Executive] was creating a damage assessment they should have told that to the Court. If they are saying now that the only first became aware of that on 17 May then that is inconsistent with his previous statements and it is also inconsistent with the 24 May memorandum written to ONCIX [Office of the National Counterintelligence Executive].

Judge Lind

Alright, well I think I understand what happened on both sides.

I do have concern that if the questions that I asked on the 21 of March who had any damage assessments, and the Government, what I am hearing from you, is that you took exactly what they told you and told me?

Prosecution (Fein)

That is correct your Honor.

Judge Lind

But you did know that the other agencies were submitting documents to ONCIX [Office of the National Counterintelligence Executive] and that they had a mission to do that damage assessment?

Prosecution (Fein)

Yes, your Honor. And we were working also to obtain those other ones.

Judge Lind

I guess I wonder why didn't you tell me that when I asked you the question on the 21rst?

Prosecution (Fein)

Well, Ma'am our interpretation...the question was based off the defense's discovery request so it was based off of those entities they were requesting. Um..if we were to share with the defense every piece of information we have...I draw the line between answering questions of the Court and the defense, then again it goes to a fishing expedition. They could just ask an open ended question of course the Court at us. So we answer the questions the Court asks and we answer with what we have approval to answer based off of security, based off other concerns, and what we have access to.

Judge Lind

Alright. Lets move on to DIA.

Prosecution (Fein)

Ma'am, the Defense Intelligence Agency is within military authorities, and the Government maintains and has since the first request from the defense that they have not provided an adequate basis...or..legal basis, or adequate factual basis for the request. This really gets down to starting points...a "specific request".

Judge Lind

What files have they asked for?

Prosecution (Fein)

Your Honor, they have asked for...one moment your Honor.

There have been multiple requests your Honor. The most recent in the motion to compel discovery is "whole investigative file related to Pfc. Manning, WikiLeaks, or the damage occasioned by the alleged leaks to be produced". There are no investigative files. We said that on the record last time the Court asked us over email...or excuse me...through the Court's order 23 March. We disclosed that, "There are no investigative files."

Judge Lind

Are there any other files that the Government is aware of?

Prosecution (Fein)

Yes, your Honor. There are documents that exist within the Defense Intelligence Agency that relate to WikiLeaks.

Judge Lind

WikiLeaks or Pfc. Manning or both?

Prosecution (Fein)

It is possible both, more than likely just WikiLeaks.

Judge Lind

It's possible both? Are you...?

Prosecution (Fein)

Your Honor. We have started...also...we started a while back, and we continue to review those documents. So, it is possible, that we have not found anything that relate to Private First Class Manning.

Judge Lind

And to WikiLeaks?

Prosecution (Fein)

And the Defense Intelligence Agency was the agency proponent of the Information Review Task Force. But the issue here the Government contends, your Honor, is been a broad request for everything. What type...what specific information from DIA is the defense requesting...we will go out and looking at that. We are reviewing it as closely aligned organization for Brady material under 701(a)(6) and if defense can articulate a very specific request to get information from, then we will...

Judge Lind

[Exasperated.] How are they going to do that, if they don't know what is there?

Prosecution (Fein)

Well, your Honor it goes back to their fishing expedition. "I want everything from a Government organization within DoD. I want everything [missed] files. I want..." It should be a very specific request, and the cases support that.

Judge Lind

Well, can you tell me what kind of files that they have that you are reviewing?

Prosecution (Fein)

Yes, your Honor. It would range from internal memoranda, product papers. This is an analytic organization, so it would be product papers, briefings, notification type memoranda...that is probably a good cross section, your Honor.

Judge Lind

No investigations?

Prosecution (Fein)

For the purposes of WikiLeaks and Private First Class Manning, they do not have any investigative files. They sough that response, they query it, they came back.

Judge Lind

OK. And what kind of assets have you had with respect to the files?

Prosecution (Fein)

When it comes to the Information Review Task Force, your Honor, we have been given access to review it for Brady material as well.

Judge Lind

Alright, and that is the file I just ordered released, right?

Prosecution (Fein)

That is the impact statement or assessment, your Honor, that would be the correlating document of the life of that organization that was stood up as a task force. That was the final product, there complete. That is what you reviewed for the Court. So it would be any other products being produced prior to that final product.

Judge Lind

OK. And you calling any witnesses from this organization?

Prosecution (Fein)

Yes, we are your Honor.

Judge Lind

On merits or sentencing?

Prosecution (Fein)

Both your Honor.

Judge Lind

And what [missed] on your relying on for the testimony for [missed] ?

Prosecution (Fein)

For sentencing purposes, yes your Honor. But, well, your Honor vis a vis the assessment you have reviewed.

Judge Lind

OK.

Prosecution (Fein)

And again that is on sentencing and not on the merits.

Judge Lind

Alright, anything else for the defense?

Defense (Coombs)

The only thing on that Ma'am is that it is obviously within their possession, custody, and control; and what the defense is aware of is that DIA was basically tasked to stand up the Information Review Task Force in order to do the comprehensive view of all the information that was alleged to have been leaked in this case, and so that was the information that the defense was aware of, and that is the only way we could ask for it. And, again, because it is within the military's custody, possession, and control, then at that point, the Government has an obligation to go look. So if they are saying that the only thing that is there is the Information Review Task Force, that is one thing. But, if DIA has done other things that we are not aware of just because it has not been made public, then this is the only way the defense can be made aware of it, by asking for it in discovery.

Judge Lind

Alright. [To prosecution] So when you are doing these review then are you looking at these review for both 701(a)(6) and 701(a)(2)?

Prosecution (Fein)

Ma'am for DIA information we have been reviewing for 701(a)(2) in anticipation if the Court does rule in favor based off this specific request from the defense. So, we do not have to review the documents again.

Judge Lind

OK. Let's go a little bit more broadly here. When you are reviewing the documents for 701(a)(2) if the Government is alerted that this is material that could be to the defense the Government has an obligation to turn those over.

Prosecution (Fein)

Your Honor. The Government at least argues that it's not just the documents themselves that are material, it would be certain information within...just like the defense is arguing...or proffered to the Court in their response to the ex parte motions of the 505(g)(2). Here are the categories of information. The prosecution makes the initial determination to show preparation for the defense, and then the defense argues...provides as they have done, and then it is like, OK, that is now what we are on notice of...so we are absolutely on notice that any "type of damage that resulted" for instance material to the preparation of the defense based off of the year and a half of requests. So, as each discovery request comes in, we process it...we add it to our databank of what we are reviewing, and we start again churning the review of these documents. But we have maintained still based off today's litigation that those documents still are not 701(a)(2)...subject to the Court's order, but because it is not a specific request...it's "all documents from DIA"...with some caveats...no anything directed at a certain type of information.

I mean the defense is in the best position of anyone to know exactly what was or wasn't compromised from their client. They could be making specific requests of what type of information they are looking for. So, it is not that the defense is in an odd position of not being aware of what could be out there. As the defense just stated on the record, if the Information Review Task Force, which it was, was started to review all the possible compromised documents, then they should know what was compromised. We would know from reviewing the files what is there, and they could make specific requests.

But it goes back to. It is a generic request copy and pasted from 701(a)(2) for pretty much every type of document out there.

Judge Lind

What volume of information are we talking about?

Prosecution (Fein)

Your Honor...keep going but I will be able to get you that information before we close the Court today.

Judge Lind

[To defense.] Yes?

Defense (Coombs)

The attachments to our initial motion to compel discovery no. 1 give the Court every one of our discovery motions. Our motions are not cut and paste from the Manual [For Court Martial]. We made specific requests when we had information. But, here 701(1)(2) just requires us to make the request for documents that are within the Government's possession, custody, and control. It is the Government at that point that has the obligation to look at the documents in their possession and turn over anything that is material to the preparation of the defense. Major Fein seems to read in an additional requirement for us to then indicate what documents we haven't seen yet, how those documents may be material to the preparation of the defense. That is not within 701(a)(2). That is not a requirement of 701(a)(2). And, again unless I am not hearing Major Fein correctly, it sounds like they have done a search of 701(a)(2) and have potentially information that is material to the preparation of the defense, but they are not turning it over because they haven't received a specific request, unless the Court orders them to do so. And, if that is the case then they need just to turn that stuff over right now if they have in fact identified stuff.

Prosecution (Fein)

If the Court is willing to accept the defense's argument that any document that is in the possession, custody, or control of military authorities...that they simply request, and make no other showing, then you are entitled to inspect. Your Honor, especially doing classified information goes back to...this is a tactic to essentially slow this prosecution down, slow this Court Martial down...where on the one hand arguing that for instance, an upcoming Brady motion, if you give them too much information, "I have identified something," now they want everything, just because he made a request. We have maintain...the prosecution has maintained from the very first request...provide us specific request...and adequate basis...and a specific factual basis...and we will be able to process it. All documents from DIA or IRTF [Information Review Task Force] is not sufficient. Yes, we have prepared, because we do want to move this case, and we do not want to have unneeded delay. In order to do this...and I have to review THOUSANDS of pages of documents again. But again, these are classified documents, and the defense knows that, and yet they STILL maintain general requests. Just because they make a request, then it MUST be material to the preparation of the defense with no other [missed].

Judge Lind

I understand that Major Fein, but when the Government is reviewing these documents the Government has an obligation under R.C.M. 701(a)(2) to disclose material to the preparation of the defense. So if the Government while observing...looking through these documents sees something, if you think it is material to the preparation of the defense, and you are not turning it over, because they didn't ask for it, I am going to order everything turned over to me for in camera review.

Prosecution (Fein)

Yes, Ma'am.

Judge Lind

Is the Government going to look at this with an eye of defense counsel?

Prosecution (Fein)

We absolutely will, Ma'am, and turn over material based off of what defense gives us, or what they consider material to the preparation of the defense. We will review the documents for THAT. Cause then that would qualify as a specific request, and we would do it.

Judge Lind

[Annoyed] We are having a circular argument again. If you are looking at documents and you say, as Major Fein, boy if I was a defense counsel I would find this material to the preparation of the defense, are you going to hold onto it till they request it?

Prosecution (Fein)

No, your Honor, we are not.

Judge Lind

OK.

Defense (Coombs)

OK. Well that seems to finally be the correct answer because even within the analysis [Within the Manual for Court Martial each rule is followed by analysis] it indicates when the trial counsel sees something that is clearly material to the preparation of the defense, even without requests from the defense the discussion says you should turn it over. And, now that we have actually identified an organization and said, give us stuff that is material to the preparation of the defense, again, he has an obligation to hand it over. If I didn't understand him correctly, but I believe he said, "We have documentation that we have identified as material to the preparation of the defense, and we are prepared if the Court orders us to hand it over to the defense, but until we receive specific requests we are not doing so." And, now based up the Court's exchange with Major Fein, he now realizes, "OK. Yeah, we need to turn this over." And that is the clarification that the defense would like to nail down. Does he have documents right now that are material to the preparation of the defense that he has been holding onto, because he believes we needed to make a specific request for.

Judge Lind

I will ask you that question then.

Prosecution (Fein)

Yes, your Honor. I would ask that we could get back to the Court, because we would clearly have to go look at our computer system. We will be able to answer your question.

Judge Lind

OK. Alright moving on. DISA [Defense Information System Agency].

Prosecution (Fein)

Your Honor. The Defense Information System Agency is a Department of Defense entity. It is within the possession and custody of any documents they have. We have submitted a request to review their documents and we are in the process of reviewing them. That should be probably very shortly...there are very few documents.

Judge Lind

So a few documents?

Prosecution (Fein)

It's...it's...I think it's...this. I think it is under 60 total documents, your Honor.

Judge Lind

Any idea what kind of documents?

Prosecution (Fein)

Most of it, your Honor is going to be administrative documents...mostly background documents dealing with information that we have turned over to the defense that we intend to use on case in chief.

Judge Lind

OK. So you have already turned in...over evidence...

Prosecution (Fein)

...the evidence. Yes, your Honor.

Judge Lind

...from this entity. And, do you have witness that you are going to be calling from this entity?

Prosecution (Fein)

Yes, your Honor.

Judge Lind

And, whatever are they are going to be relying on this material for the defense?

Prosecution (Fein)

Well, if they are offered as an expert, then yes, your Honor. I mean they are more than a factor with us.

Judge Lind

OK. So whatever documents they are going to be relying on will get them turned over to the defense?

Prosecution (Fein)

Yes, your Honor. The evidence has already been turned over to the defense.

Defense (Coombs)

And, then this is another point of clarification based upon what Major Fein said, He indicated they are in the process of still reviewing certain documentation, so and then he said everything has been turned over to the defense, so there is an internal disconnect there. Additionally, we have been asking for this information for an extended period of time, so if they are still in the process of reviewing information then that goes back to the due diligence request of the defense.

Judge Lind

Then will be litigating this...

Defense (Coombs)

Correct, so the first area here is are their documents they are in the process of reviewing, that they have not turned over to the defense, because it seemed like the second statement made was we turned everything over to the defense.

Prosecution (Fein)

Your Honor. All the evidence that we intend to use at trial was turned over to the defense. They have been in possession of the EVIDENCE we intend to use at trial.

Judge Lind

So...

Prosecution (Fein)

...The only documents we have had to review are from these same requests that we submitted to any other entities that we have talked about and that comes to about 60 whole documents that we just need to review.

Judge Lind

OK.

Defense (Coombs)

So that is Brady information or material to the defense type of information that they are reviewing or...what are they reviewing?

Judge Lind

Well I think...and Government I will put this on the record, when you are reviewing these military entitles be sure to give and eye for if you find something material to the preparation of the defense.

Prosecution (Fein)

Yes, your Honor, because it is a military authority. We still maintain, your Honor, specific requests. Even for the DISA. If this is a never-ending...

GROANS IN THE COURT ROOM.

Prosecution (Fein)

...Your Honor, not to re-litigate this circular argument for this yes, but what precedence this is setting is now the defense can and will be able to list every Department of Defense entity and just log it to the wall and say, 'Now we are required them to look at the documents."

Judge Lind

And I am saying right now he has specific entities that you have...

Prosecution (Fein)

...Yes your Honor...

Judge Lind

...identified documents to look at...

Prosecution (Fein)

...Yes your Honor...

Prosecution (Fein)

...if you see any documents that are material to the preparation of the defense that you believe that, having looked at it, even if you don't have a specific request that piece of information, disclose it.

Prosecution (Fein)

[Emphatically] Yes, your Honor. The Government is not contesting with you directly. That will happen. The unfortunate affect that has, is that right after this..today's motions hearing, defense can now request every DoD entity...documents...and that will somehow create a burden on the Government to have to review it all.

Judge Lind

No, there is reasonableness and overreaching involved in that the Court will certainly address if presented with anything like that.

Prosecution (Fein)

No your Honor. Is that...I mean...that...I think this is what was lost here...that is what we continued...by focusing on the specific requests for instance for the IRTF [Information Review Task Force] and DIA documents. We reasonably rely on the specific requests line of litigation is this wrong request is unreasonable. It is simply saying, "I want you to look at everything, and then you haven't done it fast enough, and now I am going to somehow say that affects the Accused's right to a fair trial." But, if the defense can keep making broad requests the Government is going to be required to keep reviewing these. I mean even at this point. 449,000 pages have been produced in discovery, which means the prosecutions review at a minimum 439,000 pages. If you just...simple math...this is a great tactic for the defense. Plus, your Honor, when it is all classified, and they know this...it ends up being [Sounds like Grainmill] issue, because they sit their making the requests, a broad request, for every document, and it binds up to have to look for it, and then turn it over if it is material to the preparation of the defense. Simply because they ask for it...without any reason. They articulate no reason for the DISA documents, and that is what we are currently talking about. None.

Judge Lind

If there is no reason, why are you examining them?

Prosecution (Fein)

Your Honor, because...it goes back to...the defense seems to be using our...the prosecutions willingness to disclose to the Court and the defense those organizations we consider closely aligned for William's purposes. If they are listing those and now say, I want to use those organizations for 701(a)(2) purposes, that is when this request first came in. So, if you look at the timing. The prosecution discloses to the Court for William's purposes we have reviewed our ethical obligation...and William's obligation to search records for Brady material. Defense uses that information to say, I want that information under 701(a)(2). So, again this will become a vicious circle and we won't know where the end is. So, I guess so long as the defense is...knowing the outcome of this...that is going to be fine, because that means that the prosecution is going to have to start reviewing all these documents, under 701(a)(2), and if we find...simply for a request, tipped off by us...and if that happens, then we have to review them, get the approval to turn them over, and start this entire 505 process...assuming...

Judge Lind

OK. That is how a classified...works.

Prosecution (Fein)

Yes. Your Honor. Yes Your Honor. But the point they don't have any independent basis for this. The defense has articulated none. They are basing it off of our William's defined closely aligned organizations, and that is their whole basis. Don't agree on that part for DIA, your Honor, because the defense knew about IRTF [Information Review Task Force] independently based on public statements. But for DISA, next is CENTCOM, next is SOUTHCOM, so go back to, they have not provided any basis other than "It is a military authority, therefore I get to look at it."

Judge Lind

If it is material to the preparation of the defense.

Prosecution (Fein)

Yes, your Honor. Got it your Honor.

Judge Lind

[missed]

Defense (Coombs)

Your Honor. Again, looking at the attachments in the motion to compel discovery 1, you will see all of our discovery requests. When, the defense alerted the Court prior to even the Arraignment that we were asking for specific items, we listed those specific items. Major Fein is just mistaken when he says that we are somehow, relied upon...they were telling us, who they believe is closely aligned. Not only again, it seems like Major Fein still does not understand that when it is an entity that is within its possession, custody, or control of the trial counsel, there is no other obligation other than giving the documentation that is material to the preparation of the defense. So, again that seems to be the problem that the Government even though they are now saying, "Yes, we understand." They don't appear to be understanding. The defense has not gone on and named every Federal agency. We have named very specific Federal agencies, based upon the information that we have received. Like it or not, that is how discovery works. We receive information and we follow up on leads. That is what a defense counsel does. And, in this instance now we have identified several times, the same exact agencies of information we are looking for. And, it appears to me right now, the first time the Government understanding that if it is an agency within its military possession, custody, and control that all is required is a request for documentation. Any request...that is it. And then they have to look, and if they see something that is material to the preparation of the defense, they need to turn it over.

Judge Lind

Well, I am not sure I would go quite that broadly, but...

Defense (Coombs)

If it is within your organization and is material to the preparation of the defense in DIA, in CENTCOM, in SOUTHCOM...they act like they are just now figuring out CENTCOM and SOUTHCOM is involved with this. Of course we knew they were involved with this based upon the charge documents, and that is why we asked for any report, damage assessment, any sort of investigation done by that agency. And so, as they...and again...we named CID, DIA, DISA, CENTCOM, SOUTHCOM.

The sky is not falling for the Government. Those are the agencies we named. And, we said if their are documents that are material to the preparation of the defense in the possession of these agencies, we want them. The Government has consistently come back with. You haven't given us a basis. And, they have argued that here, in a Court that has consistently said, "No. If you look at it as the Government, and you say to yourself. I would really like to have this if I were a defense counsel." That should tip you off that it is material to the preparation of the defense, and you should hand it over.

The discussions of the rule is that even without a request if you saw that stuff you have to hand it over. The Government is now going down some other radical of us now apparently going on an alphabetical list of all the Federal agencies. These are the agencies we are aware of. These are the agencies we are asking for, and it is important for the Government to at least acknowledge at this point that if it is material to the preparation of the defense, they need to hand it over, there is no additional justification they need...other than to hand it over.

Judge Lind

Alright, Government just look at when you are going through these documents, just look at the analysis to R.C.M. 701(a). It sets forth what the drafters intended with that. Says, "It should be a specific request. If there are reasons that your are looking at some document, the ruling is, when obviously discoverable material in the trial counsels possession, trial counsel should provide it to the defense without a request." Our [missed] is looking at the anyway...

Prosecution (Fein)

Yes, your Honor.

Prosecution (Fein)

...if you see something that is obviously material to the preparation of the defense.

Judge Lind

Yes, your Honor. The Government would ask for..so these requests, guys were looking at it anyways. So, for the subsequent future request, even going back to the Court's order on 23 March, discovery, 23 March 2012, cites Grainer, ultimately discovery rules under MRE 701...excuse me R.C.M. 701 have these production rules, they are subject to [missed] and relevance, materiality. A simple request with no other basis, and that is ultimately what we are arguing by these specific requests. We do not. We are going to do exactly as you directed right now, but in future requests, this is necessarily, we would maintain precedence for this Court Martial. If this is all it is, we got nothing. We have already obtained the documents and we are starting to review them. So, we have to look for Brady.

Defense (Coombs)

And, Grainer, as you well know deals with documents outside of the military's possession, custody, and control.

Judge Lind

Well, it does but it leaves 701 and 703.

Defense (Coombs)

Mistakenly so. It goes through that whole little process. But, the documents they are trying to get, where not within the Department of Defense, and so that was the whole issue there.

Judge Lind

Are we going back to that rule there has to be no relevance for when you are asking for requested discovery?

Defense (Coombs)

No, Ma'am. You list the agency as I say. You have got to list the agency, and some basis for why you are asking for that agency, and then that triggers the Government to take a look at the information. There is something material to the preparation of the defense, then he can handed over. We have listed agencies, not based upon a whim. If we did, we would be looking at a lot more agencies than just the five that are listed here. We have listed agencies, and it is clear to any one looking this, that we listed those agencies based upon information we received. That these are the agencies that are involved in this case. And so, we are not out on a fishing expedition, as much as the Government likes to use that terminology. We have listed agencies that are part of this case, are within the military's possession, custody, and control; and they have an obligation at that point to turn the information over. So, again even with the trial council agency it appears, he is again trying to read some further obligation to turn over information that is definitely by any stretch of the imagination material to the preparation of the defense. There is no obligation for that...the Court correctly directed the Government to the discussion, and when you see it, and you think it is material, you have to hand it over.

Judge Lind

OK. I think we have litigated that to death.

Prosecution (Fein)

Yes, your Honor. I think I put it in the same list, CENTCOM/SOUTHCOM are next and it is the exact same.

Judge Lind

OK. CENTCOM and SOUTHCOM exact same 701(a)(2)

Prosecution (Fein)

Same as DISA they are within military authorities.

Judge Lind

Closely aligned?

Prosecution (Fein)

Yes, your Honor for William's purposes.

Judge Lind

OK and...

Prosecution (Fein)

We will review those documents for Brady material, we will also be identifying for 701(a)(2) material for the preparation of the defense.

Judge Lind

OK.

Prosecution (Fein)

And, we will also review what we have already looked at.

Judge Lind

Alright.

Defense (Coombs)

So, is the Government saying that they haven't reviewed the documents, or they are still on going reviewing the documents? Have they produced all the documents they intend to rely upon?

Judge Lind

Are CENTCOM and SOUTHCOM...are documents from those two entities, or lets go one by one? You have turned over to the defense that are going to merits or sentencing in [missed] case?

Prosecution (Fein)

Ma'am we have turned over the evidence that we intend to use at trial on merits. We are not aware of any of the files that we have that we still have to review, that we intend to use on merits or for sentencing.

Judge Lind

So the files that you are reviewing now are the same type that you are talking about for DISA...I mean...for yeah...DISA...for

Prosecution (Fein)

...actually for DIA, your Honor.

Judge Lind

for DIA...

Prosecution (Fein)

DISA was...

Judge Lind

...the smaller one.

Prosecution (Fein)

...yes, your Honor. It is essentially the internal correspondence is by memoranda, PowerPoint briefings, POP ordnance (sp.), general military type documents...[missed

Judge Lind

Just to be clear Government, understand, I am not saying everything that mentions the word " Manning" and the asserted Government offense...I am just saying if you come across something...you come across anything...and say, "Boy, I would love this if I was defense counsel. I could certainly use it."

Prosecution (Fein)

Yes, Ma'am. It is actually much easier for us to turn it all over, so, than check...

Judge Lind

Alright. President's Intelligence Advisory Board.

Prosecution (Fein)

Ma'am the President's Intelligence Advisory Board there is actually three organizations that are grouped in the same area. I think they are one is the Interagency Committee, the...

Judge Lind

...Is that the House Oversight Committee?

Prosecution (Fein)

...House Oversight Committee, Interagency Committee, and the PIAB [President's Intelligence Advisory Board] are...the Government's position and general argument is the same for all three. So, if it would please the Court, I will explain that and then talk about and exception for the PIAB [President's Intelligence Advisory Board]. The Government contends that those three organizations, the defense's requests does not essentially qualify as a 701(a)(6) Brady request. It is essentially goes to the same line of argument for 701(a)(2): They have not provided any basis on why there could be Brady material at these three organizations. They have provided some information about what might exist there, but not have any showing that would put us on notice for what type of Brady material.

Any time of information that is favorable to the accused or material to the guilt or punishment.

Judge Lind

Have you accessed any of these files in any of these entities?

Prosecution (Fein)

No, your Honor.

Judge Lind

Are you using any of these witnesses for case in chief or sentencing, or rebuttal?

Prosecution (Fein)

No, your Honor.

Judge Lind

Have you given any discovery from any of these entities?

Prosecution (Fein)

No, your Honor.

Judge Lind

Have you been involved in anyway with any these entities?

Prosecution (Fein)

No, your Honor.

Judge Lind

OK.

Prosecution (Fein)

Your Honor, that essentially is the end of the common argument among all three of those entities. We have never even communicated with individual within those entities, and we not on any notice as the prosecution for any information that would be Brady or could even be reasonable Brady that would exits in those organizations with one exception, and that is why we footnoted the PIAB [President's Intelligence Advisory Board] but we are not contesting our Brady search of the PIAB [President's Intelligence Advisory Board]. Independently, we do have an ethical obligation to search the PIAB [President's Intelligence Advisory Board] for other information that we received.

Judge Lind

Why?

Prosecution (Fein)

Because, based on meetings we have been to, or documents that we have read from other organizations we do have a good faith basis there is potentially Brady material at the PIAB [President's Intelligence Advisory Board]. So the reason we have footnoted that in the response...and it would otherwise possibly seem confusing is that the argument for all three is that defense has not given adequate Brady requests, for 701(a)(6) under Williams...to require the Government to go search. For the PIAB [President's Intelligence Advisory Board] we are doing it anyways, under different requirement.

Judge Lind

Defense?

Defense (Coombs)

Ma'am, the defense would request that the Court take a look at our specific request which was outlined in our defense motion to compel discovery, but at the same time when you look at that. We put as much detail as we could, as to where this information could be found. We named people. We named agencies. The Government would add to that requirement, some sort of additional specificity that is no where required by Williams. As almost we can somehow predict what information is found in these agencies. That is the whole point of the Brady requirement, under 701(a)(6). Take a look at US v Triguerous 69 MJ 604. In that case, Ma'am the Court found the following to be a specific request under Williams: "Copies of any and all records maintained by any healthcare provider to include mental care for any sessions with either Ms. JLC or Ms. ECR" That was the request. Specificity. "Copies of any and all records maintained by any healthcare provider." They didn't even name healthcare provider. Just said, any old records for these two people, and that was enough for the Brady considered request enough to invoke Williams obligation by the defense, and that is what the Army Court of Criminal Appeals found.

Now you compare and contrast that to what we ask for. "The result of any investigation or review concerning the alleged leaks in this case by Mr. Russell Travers, National Security Staff Senior Advisor for information Access and Security Policy. Mr. Travers was tasked to lead a comprehensive effort to review the alleged leaks in this case." Comparing those two, if what was found by Army Court of Criminal Appeals to be a specific request, this is clearly a specific request. The Government...

Judge Lind

Looking at your case law you cited to me. If there are Federal and state entities involved in certain investigations...the case law that I read said that the Federal entity, unless there is an [missed] state entity doesn't have to go and do a Williams Brady search. So, if defense argument to me is, if the defense just says, "OK I want state A, B, C, D, and E's files" You basically go to any entity you want to.

Defense (Coombs)

No, I mean I think when you take at the Army Criminal Court of Appeals opinion that I cited to you, it indicates that you do have to have a specific request in order to trigger the third prong within 701(a)(6) requirements of the trial counsel. And, now question becomes specificity, and that is specificity to trigger the trial counsel to have a good faith obligation to go look. By its very nature there are going to be files outside the possession, custody, and control of the trial counsel. So, if you take a look at what is requested in US v Triguerous, the Court there found that was a specific request. Here, there is no doubt that these three requests are specific request. Again, the nightmare scenarios of the Government of us just saying, go to this agency, go to that agency doesn't exist. We have named three specific agencies for very specific reasons. That we had information that these three things: the Interagency Committee Review, the President's Intelligence Advisory Board [PIAB], and the House Oversight Committee had done some sort of damage assessment or assessment of these leaks, and at that point when they were pulling in information, Mr. Travers apparently was task to [missed] review all the alleged leaks, the PIAB [President's Intelligence Advisory Board] apparently tasked to report recommendations concerning the alleged leaks, the House of Representatives Oversight Committee again, was tasked to take a look at my client, the investigation of my client, and apparently the alleged leaks. If you look at 69 MJ 604, that is a specific request. And so not all that is required is that the Government has to at least exercise good faith an attempt to go see if their is information there. That is their requirement. There is no additional burden that the Government now believes somehow has to be satisfied what the defense is saying now saying, "Hey will you go look at that file, that I never had the opportunity to see. Here are the following Brady materials that you are going to find." Because, I pull out my magic eight ball and figured out what was there.

There is no way to do that. But, you have to give enough specificity to give the guideline as to where they need to go look. Then they just have to use good faith effort to go look. And, if they go their and do not find anything, fine. But, this is not a fishing expedition. This is not a, "Hey look at any and all agencies within the United States Government for files relating to Pfc. Manning." That would be a good response for the Government then to say, "That is not specific enough." I am naming the exact agency, and in each case I am naming the point of contact, and what they were doing. That is pretty specific. They should at least go look and then report back whether or not PIAB [President's Intelligence Advisory Board] or [missed] have anything. That would qualify as Brady.

Prosecution (Fein)

Very quickly...

Judge Lind

Yes.

Prosecution (Fein)

To just provide context to the trigger of the case. This was a rape victim, and her medical records were at issue, and it was a general request all medical records. She took the stand and they doubted her credibility. And some medical records produced, and not others are reviewed. So there is context to what ACCA [Army Court of Criminal Appeals] ruled then, and again, the context is, we knew or the Court knew the credibility was an issue, and they said that more generalized request was specific enough for that issue...additionally in Williams, Calf (sp.) held at the end of their decision so right before the last two lines of the case...so I guess it would be...page 44...excuse me your Honor...50 MJ 443 is Williams...I quote, "In summary, neither Article 46, nor the Brady line of cases requires the prosecution to review records that are not directly related to the investigation of the matter that is subject to the prosecution, absent a specific defense requests identifying the any type of records and the type of information." And they do footnote...footnote seven...that they issue when the prosecution properly may ask for more particularize type of information, "Showing relevance is a separate matter we do not address." So the Court recognize that this could be an issue, they don't directly address it. The only thing that the prosecution is offering to the Court is if the defense comes up with a more particularized showing of why Brady material would be there, then absolutely...the Prosecution will go reach out to the other entity and go find it. And absent that, or a Court's order we stand by. There are two entities, because PIAB [President's Intelligence Advisory Board] we are already reaching out to.

Judge Lind

Alright. The 17 April 2012 memo?

Defense (Coombs)

Actually Ma'am. Before we go on, just to respond directly to what Mr. Fein just said, apparently...first of all Williams is not as limited as Mr. Fein would like the Court to believe...it actually looked at the request and said that it was sufficient under ruling. The other aspect to this is that Major Fein has said, we are looking at the PIAB [President's Intelligence Advisory Board], because they are aware that there is some Brady. How are they aware that there is some Brady? We made the same request? Why is the request under the PIAB [President's Intelligence Advisory Board] is somehow sufficient, but our other two request are not? Because they are virtually identical as far as the format. We have identified an organization. We have identified a person within that organization, and we have indicated what that organization was tasked to do. So, apparently at the PIAB [President's Intelligence Advisory Board] they are aware or have been made aware of Brady. How do you do that if you do not go as the trial counsel and use your good faith obligation and contact and find out. If that is how we did it that is exactly what they need to do with the other two agencies. And, if they came back and said, "We don't have anything," or "Here is what we have," and they looked at it and there's no Brady, then there you go. But, why is it the PIAB [President's Intelligence Advisory Board] somehow any different than the other two agencies that we have identified? And why is our request at least with the PIAB [President's Intelligence Advisory Board] enough to trigger them to look at Brady and the other two are not?

Prosecution (Fein)

Your Honor. We maintain that the defense's request to look at PIAB [President's Intelligence Advisory Board] is not sufficient. It is an independent obligation. And, it not from a discussion we have had with the PIAB [President's Intelligence Advisory Board]. It would be much easier if it was that easy. This would mean we would have obtained material and done our review. We don't know if there is Brady. It is our obligation to search for Brady. So we in good faith basis based off of independently learned information that the prosecution has a good faith basis to go search. It is a search requirement. And, then if their is Brady its a disclosure requirement. So, we don't know if they have it, but we do know we need to go look.

Judge Lind

Alright. Seven. That is all the entities that I have. Are there any more out there that you want go into until the 17 April 2012 memo?

Defense (Coombs)

No Ma'am, we were going to talk about the [missed] for the Department of State but the Government has already indicated they haven't seen any of that stuff yet. So we will talk the witnesses tomorrow on that. But, no, other than the HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies] memo, no, there is nothing else.

Prosecution (Fein)

The Government recommends to the Court and the defense that we probably take up that portion of the HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies after the witnesses testify, that way if the defense calls these witnesses they will be able to get the information they need...

Judge Lind

Do you mean the Department of State piece or the 17 April 2012?

Prosecution (Fein)

I'm sorry, I meant the Department of State piece.

Judge Lind

OK. That's fine.

Prosecution (Fein)

Your Honor the Government maintains that first, the information that the defense...we think the defense...

Judge Lind

Yeah...let me interrupt you right there... [To defense] What are you requesting? I got the memo attached.

Defense (Coombs)

Take a look at the HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested.] And, again it should be no secret then as to what the defense is asking for...because if you take a look at what the memorandum basically requests all their principles to come back to them with any documents with material pertaining to any type of investigation, working group, resources provided to aid and rectifying any alleged compromise of Government information, damage assessments of alleged compromise, or consideration of any remedial measures in response to an [missed] of Pfc. Manning or WikiLeaks.

Judge Lind

What is the attachment attached to?

Defense (Coombs)

It should be attached to our motion to compel discovery no. 2 or our response. It is attached to the our response.

Judge Lind

OK.

Defense (Coombs)

So Appellate Exhibit 96.

Judge Lind

Attached to Appellate Exhibit 96.

Defense (Coombs)

So if you look Ma'am you will see a cover memorandum dated 17 April 2012 that is when HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested] realized that nothing had been done on the initial requests, and they put out a suspense for 23 April 2012.

The follow on page is the Army Staffing Corp and it encased there that key points of US Army's prosecutor of Pfc. Manning. "The Army's prosecutors are requesting the preservation and production of records."

We know that basically this is their memorandum that they started sending out. And then says here: "It was only recently determined that [missed] been taking on requests that was dated 29 July 2011."

So, somebody apparently within HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested] clued in that nothing was done, and then put out this suspense memorandum to get a response. And, then the response were apparently provided her response to [missed]

Judge Lind

So you are looking for the information that this [missed]?

Defense (Coombs)

Yes. This would then be information that we would then order requesting under 701(a)(2) material that is in the possession, custody, control Department of Defense with regards to our client. And in fact, I almost venture to guess that if defense had made a discovery request that sounded very similar to this, it would be deemed not specific enough. But that is what we are asking for...any documents material to any type of investigation, working group, or any effort to rectify any alleged compromise. Any damage assessment, any consideration of any remedial measure. So, not only is that what we are asking for, that is what we desire...when the Government says, "We don't understand what they desire." But then you take a look as to why this would be relevant, it self evident why this would be relevant...that it would not only fall under 701(a)(2), but more than likely if there is anything in here that indicates that there was some damage or what not it could also be 701(a)(6), Brady material.

Judge Lind

I noticed the memorandum has a suspense date of 23rd of April 2012, so have the entities that got the memo reported back?

Prosecution (Fein)

No, your Honor. Headquarters [missed] out beyond the date of suspense. We have received at this point...we received all of the documents that were sent to OUR request to DoD and HQDA [Headquarters Department of the Army] that this is attached to do what we asked them to do. This goes back to exact same type of request that we given examples to the Court that was filed some time ago and of counsel when we litigate the due diligence argument, and the defense says...this might come up or might not...but the bottom line on what the defense has provided your Honor. The key point is the actual routing slip from Headquarters [missed] form. The third box bulleted. It was only determined that no action had been taken by HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested] pursuant to the 29 July 2011 memo from DoD OGC [Office of the General Counsel] and then forwarded explaining what the prosecutors are requesting. So, here is another example...or a better example of the prosecution going above and beyond its legal obligations to do a due diligence search even the HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested] office. Army prosecutors asking even the Department of the Army to search their files for these topics which come right off the same memo you have an example of.

Judge Lind

This says provide...Department response for the production of records related response by 23 April 2012. Has anybody responded?

Prosecution (Fein)

Yes, your Honor. We have received these sometime in the last month. All the responses we have received as the prosecution. And we started reviewing those as well.

Judge Lind

Ah, that is what I am asking. Those files have been received pursuant to this memorandum

Prosecution (Fein)

Yes, your Honor. Documents. I mean there are no centralized file in any HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested] organization about WikiLeaks or Private Manning other than Army CID or Defense entities we have already had.

And the other, the Second Army [U.S. Army Cyber Command] 15-6 that was done directly by the Secretary of Defense, Secretary of the Army...that was already produced in discovery to the defense. Three military intelligence investigations that were produced to the defense. Two different [US Army Criminal Investigation Division] CID investigations that were produced to the defense. One USFI (US Forces Iraq) 15-6 has already been produced to the defense. One 1st AD [1st Armored Division] 15-6 that was produced to the defense. So Department of the Army files that are being produced to the defense, especially anything within our actual prosecutorial files that we intend to use at trial both on merits and sentencing. This is HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested] staff documents based on our due diligence request that we just received in the last thirty days, or since defense filed their initial motion...that we are now starting to review originally for Brady purposes. And again, you know how these documents...material to the preparation of the defense, and we have them now, and we will start reviewing them as well. If we find anything material to the preparation of the defense we will turn it over to the defense.

Judge Lind

OK.

Defense (Coombs)

Again, this would be the addition of the discuss for the due diligence but it the timing not only when you made the initial request, but did you follow up when you didn't receive anything back? And it is clear here that if we did not receive this memorandum we wouldn't know that HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested] did ask or didn't respond back to the request. This went out to all the principles, this wasn't just HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested]. This was all the principles within HQDA [HQDA is composed of the Office of the Secretary of the Army; Office of the Chief of Staff, Army; the Army Staff; and specifically designated staff support agencies memo and it lays out exactly what is being requested], and that is how it landed on DS's desk.

So it is not an indication of the Government's diligence, it is just the opposite. It is an indication of the Government's non-diligence.

Judge Lind

Well...let's litigate that piece of it next time.

Defense (Coombs)

Understood.

Judge Lind

Alright, anything else with respect to the motion to compel discovery?

Prosecution (Fein)

Other than the remaining issues for the Department of State witnesses tomorrow, no your Honor.

Judge Lind

Alright, we have one last discovery motion, and that is to identify the Brady do we want to do this this afternoon? I will leave it up to you.

Defense (Coombs)

We will do it now Ma'am.

Judge Lind

The motion itself is Appellate Exhibit 93. The prosecutions response is Appellate Exhibit 94. And, the defense reply is Appellate Exhibit 95.

Defense (Tooman)

Your Honor it is the defense's contention and the circumstances in this case warrant and justify the Government specifically identifying Brady information for the defense. If you look the [US v.] Hsia case decided by the defense. If you look at that case, they do no analysis. They look at the discovery in that case, there are 600,000 files and Government you got to identify the Brady. You can't expect the defense to sift through that and find the Brady material.

So there is case law to support the defense's position on this. This is an appropriate remedy without any other analysis other than shear volume.

Judge Lind

Captain Tooman right now, we aren't really talking about the FBI files.

Defense (Tooman)

Well, intentionally we are not, but what is clear the Government has not understood their Brady obligations.

Judge Lind

Well, what other files are we talking about?

Defense (Tooman)

Well we have over 150,000 pages of discovery. There could be Brady in there as well.

Judge Lind

So, you want to Government to go through everything they have given from day one to see if there is Brady? To separate the Brady from the non-Brady?

Defense (Tooman)

Well it is the defense's position your Honor that and I think this will come out in the due diligence argument that if the Government had been doing theory due diligence with the Brady, they would have been keeping track of what material was Brady. The defense's position is also going forward we would request that they specifically identify that. That would be the main request.

Judge Lind

So you have a witness statement for example, and paragraph two is exculpatory, and paragraph one is not, are they going to be highlighting that paragraph for you?

Defense (Tooman)

Well, we think that moving forward that would be an appropriate remedy. As they are going through discovery, they are reviewing, they are making a determination whether something is Brady material. It would not be unduly onerous for them to pick up a highlighter and say, "That is Brady." We don't know how much discovery is left out there. And we think the circumstances of this case, and now we are talking about the [US v] Salyer case, where they talk about a number of factors that would justify that sort of remedy to the defense.

And, those factors are enumerated in the defense motion, but one of the key factors, and probably the key factor is the defense access to discovery. And in every case the Government cited, that was kind of the factor that turned the decision one way or another. In the cases cited by the Government, the defense had equal access, equal opportunity to view all of the discovery. That is clearly not the case with Pfc. Manning's situation.

As the motion discusses we are geographically separated as a defense team. We do not all have equal access to the discovery material. There are a number of pieces of classified discovery, where we need to coordinate with our security experts, or go to a certain place. So, we don't have equal access. And, the individual who particularly doesn't have equal access is Pfc. Manning. He cannot see a large portion of his discovery.

Judge Lind

Wasn't that the purpose of the protective order, that he can't see it?

Defense (Tooman)

Some of it is because of the protective order your Honor, but also all the unclassified discovery is also difficult for him to see. He is in confinement. There is no means for him to view his discovery in the JRCF [Joint Regional Correctional Facility]. When we go visit him at the JRCF [Joint Regional Correctional Facility] there is not a computer there where we can take disks in to show him discovery and discuss his case with him. It is clear from defense's reply motion in the Attachment is: It is not so easy to bring Pfc. Manning out to visit us at TS (?) offices Fort Leavenworth. The Government [missed] on that pretty hard. They don't like to do that because there are a lot of moving parts. And, so Pfc. Manning is in a situation where he can't actively participate in his defense. And, your Honor is absolutely correct. Some of that is because of protective orders, but it is also the case for the lion share of the evidence. He can't look at it. As defense counsel we cannot print 450,000 pages of discovery and carry it with us into the JRCF [Joint Regional Correctional Facility]. And, even if we did that, the JRCF [Joint Regional Correctional Facility] is set up such that the escorts are sitting right outside the door. They often times can hear the conversations that are taking place within the room where we meet. And so, discussing, and getting into the nitty gritty or Pfc. Manning's case with him is well not possible. And so, that factor swings heavily in the favor of defense. The other factors are that he has no corporate assistance. There is no parallel civil litigation, where there is sort of a entity, or another reason why he would be looking at it, or other attorneys working on it. And the other big factor considered by is that when you look at the size of the defense team in relation to the size of the Government. Well here the Government has four maybe five attorneys on this case full time. Whereas the defense has three individuals. There is three individuals. There is Mr. Coombs. There is myself, and Major Hurley. And, at least in the case of Major Hurley and myself we have other obligations, we have other clients. We have other Court Martials. We are not dedicated solely to Pfc. Manning. And, so when you look at the imbalance between the size of the Government and the size of the defense, that weighs in favor the Government having to specifically identify Brady material. Plus the other factor is the discovery is voluminous.

We have 7,000 pages...make that closer to 8,000 pages of FBI material, but as we learned today. That is only 20 percent of the file...or roughly 20 percent of the file. That is a 45,000 or 40,000 page file that we may of may not need to go through. Plus any other Brady material or any other files that may come up. Now, the Government cites the [US v.] Skilling case as their main authority. While it says the Government doesn't need specifically to identify Brady. They identify three circumstances where that would be an appropriate remedy. It is the defense's position that each of those circumstances is applicable to Pfc. Manning's case.

The first situation is having the files. What is clear here is, as we heard the Government assert, they talk about handing over to the defense, what amount to "at least Brady."

Judge Lind

Didn't you ask them more than Brady?

Defense (Tooman)

Yes.

Judge Lind

OK.

Defense (Tooman)

Yes. And the other issue with the padding is the late hour that we are getting this discovery.

Judge Lind

So is the defense's position that the Government is handing over more than the Brady and the FBI file is basically padding the file so you can't find the Brady?

Defense (Tooman)

We think that its appropriate for the Government to identify the Brady as they are already doing as they are identifying these documents. So all the defense is requesting is that they pick up a highlighter, and highlight it, so that we can go right to it.

The other factor that [US v] Skilling contemplates is that the discovery is unduly onerous on the defense, and what the defense thinks ties in directly to that is the factors from the Salyer Court is that you look at the size of the defense team as well as the access that were important. The arguments that we made as far as access and size of the defense team, we think apply to the unduly onerous sort of situation with [US v] Skilling.

And, finally the last scenario that [US v] Skilling contemplates is has the Government been acting with bad faith, then if so, they need to be specifically identifying Brady. And, we think that the Government has been.

Judge Lind

How do you think the Government has been acting in bad faith?

Defense (Tooman)

Well, you Honor, we would at some point in the future we are going to discuss the due diligence, certainly the due diligence argument that Mr. Coombs set forth earlier today, we think ties into a bad faith. We think the way the Government answer what seems to be very clear questions from this Court, in sort of elusive ways amounts to bad faith. What we talked about today with ONCIX [Office of the National Counterintelligence Executive] where the Court asked a very clear question: Is there anything from ONCIX [Office of the National Counterintelligence Executive], and the Government says , "No," and they play semantics, when it is clear what the Court is asking. When the Court asks the Government is there any one from the FBI testifying, "Yes for sentencing or to maybe authenticate a document," and then ten minutes later they talk about someone testifying from sentencing, but they don't talk about that with your original query, because that person is technically not an agent. It is clear what the Court is asking. And so, this is the sort of attitude the Government has had throughout this case. It is clear. We don't check common sense at the door your Honor. It is clear what is being requested, and the Government just isn't [missed]. And finally, just the fundamental misunderstanding, the Government has had throughout this case, for basic issue for basic principles of discovery. A couple months ago, this Court ruled that the Government didn't understand Brady obligations. And now today the Government, two years after this trial started is explaining to the Government basic principles of 701(a)(2).

We think all those things combined together is amount to bad faith, you Honor. And finally, the last point, again, the Government is already reviewing these materials. There already making a determination when they read these things, that something is or is not Brady. If they are already doing that, then it is not unduly onerous for the Government to highlight it, and say, "This is Brady."

Prosecution (Fein)

First and foremost, the Government contends that there is no authority on the defenses cited or is found to order the Government to identify Brady material.

Judge Lind

Let me ask you that. I know just reading case law that both parties have supplied neither Federal rule request, criminal procedure is I believe [Rule] 16 that was applicable or R.C.M. 701, properly identifying Brady material. Cases that did it did it so inherent power of the Court for housekeeping if you will, case management, I believe that is the way they put it.

Prosecution (Fein)

Yes.

Judge Lind

Is the Government contesting that I have the ability to do that in case management?

Prosecution (Fein)

No. So, there is no direct authority. There is inherent. First of all you Honor, the line of cases that the defense is relying on aren't even really applicable to this case. We aren't talking about the [missed] thousand pages of information...about 600 documents to date.

Judge Lind

Are you talking about just the FBI file?

Prosecution (Fein)

We are. But what they have ben produced so far...just what have to at minimum for Brady.

Defense (Tooman)

I think I just heard Captain Tooman say they want you to go back through everything and produce it.

Prosecution (Fein)

They do, your Honor. But I am sticking to what is in the motion...about 7,000. But after the motion we produced the final...that was the FBI law enforcement investigation and it came out to probably 9,000 pages. So, the majority of these cases, all of the cases, deal with an extreme amount of discovery. The Government isn't trying to contends that in a normal military justice case the fact that we have turned over 400,000 pages would seem extreme. But, these cases focused on 600,000 documents. Millions of pages. And, it is not applicable to this case. Additionally, and more importantly, the defenses is contending that the prosecution prepare the defense's case by highlighting certain information which is Brady. The requirement is disclosing Brady under 701(a)(6) as soon as practical, once we get approval, as soon as possible, we turn it over to the defense. What isn't happening, and is that somebody highlighted in the version we turn over we delete, we simply in order to expedite the process of document reviewing, and getting the documents to the defense, we identify something that qualifies as Brady, we identify the document and then we move on, after we go through an approval process.

Judge Lind

Let me ask you a question then. You said...make sure I have understood you correctly. When you highlighted a document that says Brady, the Government has some kind of a record on we highlighted this document, this document, this document, this document?

Prosecution (Fein)

No, your Honor. We determine if the document is discoverable or not, and if it is discoverable under multiple standards, including Brady, then we annotate that, and then get approval to get approval [second "to get approval" is not a typo], if we don't then we turn it over as soon as possible.

Judge Lind

OK

Prosecution (Fein)

Now. Some of the point just for oral argument. First, the [missed] our case, this case is not analogous to the cases specifically to the facts around us...700,000 document, millions of pages [He is referring to the case law cited by defense.] Second, defense's access to discovery, us identifying Brady, wouldn't cure unfortunately Pfc. Manning's access to the documents, because of the CHARGES, he is in pretrial confinement. So, if defense is wanting to take documents to him, they have to chose what documents. It wouldn't matter if Brady were identified or not. And the Government every time...

Judge Lind

Wait...If Brady is identified, couldn't you say, I am going to take these Brady documents...

Prosecution (Fein)

You could, your Honor. But you could also identify every witness for them and highlight that, and then say, "I want to take Witness Five documents today to Private First Class Manning, if we are doing the job for them, then they could take Witness Five and take that to the Pretrial Confinement Center. So, absolutely your Honor. That would help the defense prepare their case.

Judge Lind

Let me just ask you a question here. We are going a little bit aside here. But Captain Tooman has represented that Pfc. Manning it is difficult for him to get documents to Fort Leavenworth. Maybe is there a possibility that these Article 39(a) Sessions need to be extended for a certain period of time, in order to do that.

Prosecution (Fein)

Even more, to answer that question. Every military counsel has been issued a courier card to move classified information. Every military defense counsel on this case, prior to Captain Tooman and even Major Hurley coming on board have safes in their offices to classified information.

The second Private First Class Manning was moved to Fort Leavenworth, Captain Tooman, was detailed to the case as local counsel. They moved a safe to his office, the Government based off of defense's request for them to use it. In fact, defense requested immediately to be able to pull Private First Class Manning out of confinement, out of pretrial confinement to have whole meetings in the defense's office in order to discuss documents and prepare the case.

So there is nothing preventing them. Sure, there is a minor bureaucratic process. The request has to be submitted, and at this point no request has ever been denied for that. Now the original request did have to be processed through again a very bureaucratic process, but that was figured out, once Private First Class Manning was moved to Fort Leavenworth.

Judge Lind

So, my understanding that he has the same accesses at Fort Leavenworth that he would here?

Prosecution (Fein)

Absolutely, your Honor.

Judge Lind

OK.

Prosecution (Fein)

The issue is pulling out of confinement under normal Army Confinement Command Procedures.

So, the issue is...is he physically located there are the TS (?) office near him or is he in the local area at this DF office at Myers, when he was at a previous confinement facility, he was moved to Fort Myers out of Major Kempkes' office with a safe. So everywhere the defense counsel that he held ITDS on the [missed]. They been granted security clearances. They have been granted safes. They have even safes in their offices. Big five four safe to hole whatever it is. They have been given computers. Stand alone, classified computers, three of them...to be able to use them in any manner, essentially under the protective order. They see fit. If they wanted the ability to move on to Fort Leavenworth, they can do that. If they want the Government to send information to Fort Leavenworth, as we requested when they Captain Tooman came on board, they opted not to have that happen. They opted for the material to stay in the local area. The only time the Government, to the best of my recollection, has denied initially a request for resources, was setting up a Government facility for the civilian in this counsel, Mr. Coombs, near his office, in Providence Rhode Island. They had discussions with the Court, the defense protective order, the Government even set up a facility within 30 minutes drive for Mr. Coombs to prepare. So, every defense counsel, including a civilian, can prepare the case. The Government has a Fed Ex Account to move classified information. The thing is available, we just have to be asked. And, at this point, other than pulling Private First Class Manning out of confinement, for the original meeting, we have never not been able to execute a reasonable request or any other request at this point. That resources your Honor, and Private First Class Manning's access to information.

Corporate assistance. It is essentially the same issue. Private Firm Class Manning chose to hire a civilian defense counsel. If the law firm of Mr. Coombs needs more help, they can hire more people. All they have to do from the Government's perspective is to provide notification to the Court, get a security clearance, and we can have more people working on this case.

If they need more military defense counsel they need to ask PDX. And, to the best of my recollection no one has asked. But, no one has addressed that with the Government, to help with that. So, they can have more resources, they haven't asked. So the defense counsel can hire more people, but that has not occurred. So, again this is just a way for the defense to have the Government prepare its case in order to defend Private First Class Manning, instead of taking the time that they have to review the documents, that we have already reviewed and turned over.

Ask any of other questions, your Honor. We rely on the main portion [missed]

Defense (Tooman)

Your Honor. At issue right now today, may be 7,000 pages. But, we don't know what is going to be at issue a week from now, or two weeks from now, or a month, or two months from now. So, while the case has been cites, maybe have pointed to cases where there is lots and lots of discovery, it is not out of the realm of possibility that that could be the case here. And, so we are trying to get out in front of that. Here, the Government knows the defense theory. That has been pretty clear over the last few 39a sessions that there is no damage. So, the Government saying they have to do the defense case for them, prepare the defense case for it, in fact one of the cases cited, talks about how in order for the Government to identify Brady, the defense needs to tell the Government the theory. Well the Government knows the theory. The theory is that this week these alleged leaks haven't done any damage. So, the Government is well aware of that.

Now the Government talked about ID'ing Brady and they say, "OK this is something we have to turn over." What is clear from each of these 39a sessions is the Government's obviously doing more than just ID'ing Brady. They are ID'ing Brady, they are ID'ing things that are material, and then they are redacting a lot. So, it is not just a matter of looking at a piece of paper, you got to give it to us. They are doing a lot more with this discovery than just ID'ing this Brady.

Now there is no question that the defense has access to discovery or a lot of the discovery in this case. We have access. But the factor considered by the Court's is, is it equal access. It is very clearly not equal access. Very clearly not equal access. And, one of the other factors considered by the Courts in the cases the Government points out...in several of those cases they said you don't need to identify this Brady, because you are already indexed discovery when you get it to the defense. We don't receive indexed discovery. We receive CD's with a range of bates numbers and then we have to figure out what is on them. And so, we are not presented with bates number 1 to 100 is the CID file, and 101 to 300 is this other file. So, there is no indexing here and that is another factor that the Court's cited by the Government look to. What are you giving the defense? Here we are getting discovery, but it is not indexed. We have to figure out where things are.

And, finally your Honor. There is not authority. There is no case law that says, your Honor, has to do this. It is absolutely 100 percent up to your discretion, and we think that under the circumstance that is an appropriate ruling.

Judge Lind

Government I do have a question. Discovery that goes to the defense its bates number is there any other...is it just like one big dump and they have to look through it? Or is there some kind of indexing?

Prosecution (Fein)

There is no indexing, your Honor. We receive documents as they come in. We read the document. We look to a process to keep track of it by bates number, and then we produce that document in PDF.

Judge Lind

There is nothing that says, 'Bates number 1 through 1005 is the CID report. Bates number 1005 through..."

Prosecution (Fein)

The only thing that exists, your Honor, is our work product in us going through too and making that. Sometimes documents do show up with filenames, sometimes they don't. Most of the filenames have no meaning, because it is a scanned document, we just scan the documents in, and then we process them, and then we keep our own track and our own log. So, in the end, if we were to give that information, we would have literally done their job for them. Cause we don't receive again...this is...

Judge Lind

You already have a working index that you are not sending to defense in discovery?

Prosecution (Fein)

No, your Honor. We have our own that we have created as we have review documents. Like we get a document. We put it through our system, and then if it is something relevant, we then pull it, and then we index it that way. So if have the for instance, the 400,000 pages, but only 10,000 we are going to use for olsman (sp.) 500, for elements, for Charge I in Specification, then we pull those documents separately, we create our own internal process of tracking those. But, as far as once we get information in and we go through it, no. Not at that point. We have an automated system, but again it is not based on file names or what it is. It is based off the source from where we got the information. Then that is it.

Judge Lind

So, the source...I mean that is where I am confused. Is there any kind of index at all to index...I am not suggesting your index for your work product would..in the case of an organizing your elements, but there is nothing that says, 'These are the following documents we got from entity A, B, C, D, and E and they looking at bates number such and such; such and such; such and such...?

Prosecution (Fein)

Your, Honor. Our automated system can do that after we input that information. So, we have to review the document, and then we input that. And, now we have that, yes. So, I guess where I am drawing a distinction is that we don't get the information, and then somehow receive an index with it. We internally index stuff, after we review them, and then after that we work off of them. So, if we were to provide that index, we are providing the defense, what we produce. Most of the information we get it from emails. So we literally scan. We drag and drop it out of our email. And, then we put it into our system. We review the document. We call it something, and then it gets, for all intents and purposes, tagged, a certain type of document. And, then we decide if it is discoverable or not, and if it is, then we produce it with bates numbers.

Judge Lind

OK.

Prosecution (Fein)

So the index that we produce is based off of our review of the documents. It is not some external we receive, so we know what we are getting. We only get what we receive based off of the source. So, for instance. We just talked about the Headquarter DA [Department of the Army] response to our request. We got a bunch of CD's with a heck of a lot of files. So, we start putting those into our system, and then we..once we start reviewing them, if something is discoverable, we produce it to the defense, we figure that out, and then we produce it to the defense. At that point, we also have to figure out what it is. Cause it could range from any type of document or information that you could have on your computer.

Judge Lind

So, when you give it to the defense, does it have something like, 'Here are FBI files. Here are such and such.."

Prosecution (Fein)

No, your Honor. It is by bates numbers. Now when we give them the information by bates numbers to the defense, we submit emails, so we give them an example on our response to the Court. We don't have any Brady, but we do identify the type of information that we are sending them. So, there is context. We don't just say, "There is a CD in the mail. Good Luck." It is "It's a CD in the mail with these bates numbers and here is the general categories of information." So, "Here is miscellaneous CID documents." "Here is a damage assessment and a report of some sort." And then, "Here is the bates range of what we are giving..." And, again that information is determined by [missed] our review of the information you Honor.

Defense (Coombs)

Your Honor. With regards to Major Fein's last assertion, sending an email telling the defense what is on a particular CD that he is sending. That has happened on occasion, but that is not the standard. In fact, there most recent email to me just indicated, they sent a CD to me. And I asked them, "What is the bates range?" "Can you tell me what is on it?" I didn't receive a response to that. But, there have been sometimes the Government said, yes, "We are sending you some stuff, it is going to be FBI documents." "Or we are sending you some stuff, it is going to be damage assessments." And that is what they said, often times it's, "We sent you a CD. Bates number from this to this. Here is the tracking number." And then I receive it, I download it, and I have to go through it, and I done my best to go through every page.

Judge Lind

OK.

Prosecution (Fein)

Your Honor. The one email he is talking about was sent I think on Monday, for this motions hearing and it was also from a previous email that said, 'We are going to be sending you this type of information" that they affirmed. So, yes we probably, but as you'll see to give a sampling of the different emails, and example is "Put a CD in the mail today with classified discovery. Bates this range." "This CD contains multiple pretrial confinement documents from the confinement facilities. Copies being delivered to Major Kemkes" is what we do.

Judge Lind

Anything else that we need to address today?

Defense (Coombs)

Nothing from defense.

Prosecution (Fein)

No, your Honor.

Judge Lind

I do have one thing. The sentencing...the evidence that we discussed earlier [CIA WTF damage assessment. Lind rejected the Government's substitutions in a 505(g)(2) review] that we discussed to use or not use for sentencing, when am I going to see it?

Prosecution (Fein)

I think from our perspective, I think the outstanding question is, is the form or method that we submit that to the Court. The Prosecutions would offer that we submit it ex parte under 701(g)(2) in order to show our work product, how we intend to prosecute our case. It should be ex parte because it is our work product.

Judge Lind

Well what about the 701(a)(5)? I mean we are going to have to disclose that at some point?

Prosecution (Fein)

Absolutely, your Honor. But, 701(a)(5) only requires the documents that the Government intends to use on sentencing.

Judge Lind

But you are talking about your theory of the case?

Prosecution (Fein)

Yes, your Honor. From the Government's perspective the question to the Court was [missed] what type of evidence does the Government intend to use in aggravation in order to assist the Court in making discovery determinations on otherwise aggravating evidence. And so, what the prosecution argues is that we submit this under 701(g)(2) ex parte. We give you the theory of the case. We can lay out the categories of aggravation we intend to use, and even more importantly and probably more helpful to the Court would be very specific categories, and the equity holder of that information that would we absolutely never intend to use based on how severe the damage was and how sensitive it is, and can't be used in Court.

Judge Lind

Defense?

Defense (Coombs)

On this was a discussion in the 802 and this may be just the defense not understanding [missed] it was the evidence that the Government intended to use on the case in chief and on sentencing that would qualify as aggravation and that was evidence from these other entities. So that the Court would then look to see, what is the Government using and what in fairness should the defense receive. With regards to their theory or their work product. Defense doesn't need the Government to tell us how they are going to try their case. But, with regards to the evidence they intend to produce, that shouldn't be ex parte, if they are in fact saying that this is the evidence that we are trying to introduce on merits. This is the evidence that we are trying to introduce on sentencing. Then that shouldn't be ex parte because then we can argue why based upon that information the defense needs to see..let's say they are going to offer a portion of some document that they haven't shared with us yet. That would be, well in fairness, we can't cross examine whatever witness they are going to call or we can't try to undercut whatever information of evidence they are trying to introduce, without having the ability to see the whole document. So, again this may be just the defense not understanding what the Court wanted, but I would say that there are two parts to this. The Government provides what information they are going to offer in merits and in sentencing to both the Court and the defense. And, then with regards to their theory, of they think that is helpful, then sure they can file that ex parte, that is not a problem. With regard to other evidence that is so damaging they never want to reference it, that really has nothing to do with the information that we are looking at, at that point.

If that information really truly does exist. So, the defense would ask for clarification as to what the Court is wanting the Government to do, and then at that point, the Government then is [missed] the Court.

Judge Lind

I asked the Government to prepare the evidence that it was going to...advise the Court of the evidence that you were going to use in sentencing, and what you were relying on to that. And, I would like in furtherance of my 505(g)(2) reviews. At this point, I am going to do it ex parte. I am going to see it first, before I make any further determinations...

Prosecution (Fein)

Yes, your Honor.

Judge Lind

...and the same thing for the one's you are not going to use.

Prosecution (Fein)

Yes, your Honor. If it may please the Court we could...we could make phone calls tomorrow about approvals to provide classified information in this regard. I don't think that will be much of an issue. And hopefully, they will provide it by Friday, so [missed] afternoon. I think we will be able to get the approval by Friday.

Judge Lind

So, let me ask you one more question. Government has already submitted a motion to preclude to mentioning actual damage on the merits. I have that motion, I am taking it under advisement. And, I plan to ask this at the end of this Article 39(a) Session, but maybe I can ask it now. I would like more targeted briefs from the parties on that issue. Primarily with respect to what the defense said they were going to use the information for. And particularly with response to the example that you gave on [missed] means likely. In that kind of scenario, the defendant would be, you would look at the injury. The person could see the fists caused that injury, and what I am looking for is case law...one way or another...ideally on the offenses issue. But if not on similar type offenses. I didn't see anything on the submissions on either side that really addressed that issue. So, if I could get you to do a little more digging to see if there is anything out there, basically as a result of the "What happened?" being relevant to "What could happen?"

Prosecution (Fein)

Your Honor. We got that for the next motion hearing.

Judge Lind

Yes. I am not suggesting that we are going to be doing that this time. That would allow the Court to make a more informed decision. That said, is the Government, since you precluded mention of that actual damage of merit, is the Government making a claim of producing and actual damage evidence on the merits.

Prosecution (Fein)

No, your Honor. None.

(30 second pause.)

Your Honor. May I clarify from the perspective of damage assessments? Then, "No." But, depending on the definition of damage, we do have prove prejudicial, discipline, certainly it is discrediting. So it could be seeing immediate damage to the unit, or perceptions of the Army or the unit that could fall under the umbrella of damage. So under Clause 1, 2 of Article 134...what would normally be any other Court Martial, then yes. But, not damage or damage assessments that would go to actual harm of national security. We will definitely put that in our brief.

Judge Lind

Anything else we need to address before we recess the Court?

Defense (Coombs)

Nothing for defense.

Prosecution (Fein)

No your Honor.

Judge Lind

Court is in recess.