US v. Pfc. Manning is being conducted in de facto secrecy. For more information on the lack of public and press access to United States v. Pfc. Manning, visit the Center for Constitutional Rights, which filed a petition requesting the Army Court of Criminal Appeals (ACCA) "to order the Judge to grant the public and press access to the government's motion papers, the court's own orders, and transcripts of proceedings, none of which have been made public to date."
The Military District of Washington (MDW) would not allow media and legal observers covering the July 17, 2012 Article 39(a) Session in US v Pfc. Manning to use computers during the legal proceedings. This transcript was taken by hand from the public gallery of the Court room at Fort Meade, Maryland. It, therefore, may contain omissions or errors.
Judge: Army Col. Denise Lind
Prosecution: Major Ashden Fein, Captain Joe Morrow, Captain Angel Overgaard, Captain Hunter Whyte
Defense: Mr. David Coombs, Captain Joshua Tooman, Major Thomas Hurley
Prosecution has two soldiers - one of then is CWO2 Parra, the legal administrator - seated in the first row, behind the Government prosecution. At their feet are several 32 Liter clear plastic boxes containing manilla folders: Article 19, 1030xx, etc.
Please be seated. This article 39(a) Session has been called to order...
...all parties present... Staff Sergeant Hadaway (sp.) [acting as Court Reporter] is present.
The next portion concerns the Court's ruling on the Government motion to amend the protective order that was argued in open Court yesterday, July 16, 2012.
...Government provided Court with an order with a Government motion for a protective order...
...Defense proposed filing publicly...Article 39(a) Session...proposed filings... related to MRE 505(h) [MRE 505(h) "imposes a mandatory requirement on the defense to notify the government of any classified information that it 'reasonably expects to disclose,' or cause to be disclosed, in the defense case."]; RCM 701(g) [Military Judge's Regulation of Discovery. "Time, place, and manner. The military judge may, consistent with this rule, specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just." ]; and RCM 806(d) [related to public trial]...Seattle Times v. Rhinehart...procedures for protective orders. ... Government provided MRE 505(g)(1) ["Notice of the defense's intention to disclose classified information."] and MRE 506(g) ["Government information other than classified information...Disclosure of government information to the defense. If the Government agrees to disclose government information to the defense subsequent to a claim of privilege under this rule, the military judge, at the request of the Government, shall enter an appropriate protective order to guard against the compromise of the information disclosed to the defense. The terms of any such protective order may include provisions"].
When Judge Lind reads her rulings she reads them very quickly, and it was difficult for the transcriber to catch many of the details.
...two classified information spillages...24 April [year?]...
1.) Defense will notify... [missed] Defense will provide original and redacted...[missed]
2.) [Missed but concerns objections by the Government.]
3.) ...portions of objections are under seal.
4.) Court is ... [missed] 2 weeks for motions, 2 weeks for response, 5 duty days for reply... [relates to Court calendar for filings.] ...five duty days after defense filings...paragraph 3(e)...10 duty days...3(b).
Court will grant motions for good cause.
5.) ...not disclosed...MRE 505 or MRE 506 without Court authorization...MRE 505(h)...
6.) Personal identifying information (PII) will be redacted from public information...
7.) ...all persons...first and last name...all names and positions will be redacted.
...appellate exhibit 212 was the protective order.
...[regarding] the defense [renewed] motion to dismiss Specifications 13 and 14 of Charge II for failure to state and offense...Government provided Martinelli (sp.) case law, which is appellate exhibit 216. [United. States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005)]
Defense has provided more info regarding a group of cases [related to 18 USC 1030 charges and the defense renewed motion to dismiss Specifications 13 and 14 of Charge II], Government has asked for more until tomorrow morning... Court will not rule on this...
Yesterday, we discussed instructions... ...then we will look at a Government motion to pre-admit documents [both] classified and unclassified...defense objected. Then we will discuss damage [on the merits].
Do you want to do questionnaire?
Parties have come to agreement on questionnaire...questions [for the panelists]. Appellate exhibit 211 is proposed questions on which there is disagreement. So, instructions, questionnaire, Government motion to pre-admit documents, damage on the merits.
Proceed with [oral arguments for defense and Government motions for instructions for] Specifications 4, 6, 8, 12, and 16 of Charge II [which concern 18 USC 641 stealing or converting US Government property].
Defense filings are appellate exhibit 167 and 199.
Appellate exhibit 187 [?], and Government instructions for all is appellate exhibit 159.
Any disagreement in the elements themselves?
Government's main objections were to steal, purloined, and converted...
Yes. I know where we are going. [Missed.]
Let's get the defense position.
The objection... ...instructions based on Matthew Bender Federal Jury Instructions based on Circuits. 23(a) - 2 lays out the elements defense relies on and phrasing for them and various circuit opinions for that.
I want to do elements before definitions.
...8th and 3rd Circuit instructions for...[missed]. Additional enclosure, US v Morison instructions for 18 USC 641 offenses, the Specifications related to the theft of classified information.
Morison constructions say wrongful and willful taking?
...federal jury instructions.
...knowingly and willfully under both elements?
They leave out temporary or permanently language.
I guess, what does the statute say itself? Statute doesn't have intent element. Where did Morissette place intent? [Transcriber noted that the Judge said Morissette, but since the Government cites US v. Morison previously, the transcriber takes pause. Both cases deal with 18 USC 641, Morissette in particular appears to match the Judge's question related to 'intent'. Similarly, US v. Morison appears correct in light of the Government's description that it is a case related to the theft of classified information. The transcriber wanted to bring this to the attention of readers, in an event there has been an inadvertent error on my part.]
It's 'knowing conversion' the 'knowing' piece...there is a mens rea, but not on the statute.
...conversion does not imply withholding property?
Conversion charged...has to infer with Government's right to control. Conversion must be substantial interference, where under common law, individual can reimburse. So, if the Government is going off of conversion to prove value. Has the accused substantially interfered with ownership rights for reimbursement?
...think it may be better [placed?] , where Government is placing it.
The way we pattern after federal pattern is conversion must give rise to substantial interference, would have to be a 'knowing' and 'intentional' act.
At least in Morison, and 11th Circuit pattern instructions for 641, 5th Circuit conversion.
Captain Morrow reads definition of conversion.
Noticed that each Circuit all over on 'knowing' conversion...looking at Supreme Court. Do you agree?
There is a deviation where they place emphasis. Morissette places emphasis on...[missed]. ...be substantial interference...wide agreement...element...wide agreement...deviation is how they word element. Defense would argue, defense explains what burden would be...element we lay out tracks those definitions.
Only disagreement? [Missed.]
That has to be a part of the Specification. I don't believe that is an element they have to prove... once they incorporate under Clause 3 [Clause 3 offenses involve noncapital crimes or offenses which violate Federal law].
Any other deviation in elements?
No, your Honor.
Let's move onto definitions.
Various circuits...Federal Jury Instructions, Matthew Bender and Company lays out definitions for stealing and conversion, but not for purloined. Defense thinks their [Government?] definitions [are not?] representative of law. Purloin...
Steal by stealth?
The word 'mere' will not be in my instructions.
Judge Lind reads the definition.
Where do we get the language 'seriously'?
...has authority cites Morissette. Have we looked to see if they support wording?
No. I don't believe it has wording. I rely on Matthew Bender...of definitions and elements.
...'mere misuse not enough...' Editorializing?
Yes. Not all misappropriation is conversion...it has to substantially interfere, example stealing a car...return car.
Okay. Go up to first definition. 'money or property of the US' what is authority, that the Government has to prove?
Page four and page five.
641 property has value. Defense debated on 9th Circuit...intangible property. We decided not to, but the 9th Circuit still holds value...has to be a thing of value...Government has to prove for charge and for LIO [lesser included offenses]. ...some value...some proof.
[Judge Lind reads an unidentified text.] ...regarding intangible property.
That is why we could not bring motion forward.
That is what I am not sure about.
Fowler case [932 F. 2d 306 ]. Can be a thing of value, doesn't mean of value regarding intent. They have to provide has value, shouldn't be a huge burden.
Your Honor, Government proposes instruction number seven... Government information is a thing of value.
I would rather go through these. Go through defense and then go through Government. So, lets go back to thing of value. Number one. Authority?
US v. Fowler, US v Jeter, US v Girard
Lodged in response [10?]. Steal, purloined is [as] defense correctly cite Federal Jury Instructions, cite US v Morissette...not value, but use or benefit.
Where is the authority coming from regarding value?
Use and value coming back to conversion, even in Morissette...half a century ago combine steal and conversion...steal has a meaning in our manual.
Manual...use and benefit?
That is why you have steal, purloined, and conversion. We believe they are going under all three. Those are there.
Other than Bender, where is value?
Yes. I will provide that to the Court.
With conversion, definition 'would seriously' or 'interference'...
Where do you get 'seriously interfered'?
For steal and convert, draw from 5th Circuit Model Criminal Instructions and US v Morison. Missed were placed.
[Missed.] Where are your proposed instructions, Government?
Went in order of Specifications. For 641, Specification 4 of Charge II, included all. Same with 793...so you have the same definition.
You have the same for steal and convert? I looked at Morissette. There seems to be disconnect.
You are drawing that from Model...[missed].
What is the Government's objection for parsing out?
We don't have good cause. Would have to look at case law.
If you do that and find something please let me know. So, you have three definitions from defense...Matthew Bender in conversion... Look at intent instructions... Defense has 'intent' 'use and benefit of property' That is where I am. Two theories require and one that doesn't, so I am looking at how best to handle that. [Laughs.]
I believe the Morison Court addressed that. Alright that will be an issue as we go forward. 'Defense's 'knowing' and 'willful', does the Government have objections?
Specific. Doesn't object. No specific.
Both have 'willfully'...793(e) and 1030(a). So is the case law for 18 USC 641 unique?
641..what tracks. US v Morison. I believe that is where it comes from.
Yes. I believe so.
That is 'willfully'.
Defense? Matthew Bender? [Judge Lind reads Bender.]
At least 4th Circuit tracks that language.
Okay. Will use that for purposes of this Statute. Any objections regarding 'intent'?
Deprive Government use and benefit.
Matthew Bender and case law.
It doesn't include thieves market.
Where is the additional authority for the additional definition?
US v Morison, US v Oberhardt, US v. DiGilio [538 F.2d 972 (3d Cir. 1976)] It is in the transcript of Morison, the thieves market.
Does defense object to thieves market?
Must see evidence. In cases, the Government must establish that there is a thieves market and then establish [the value], then establish [missed]. ...much like mistake of fact.
I would like case.
Yes, your Honor.
'good order and discipline'...? [Missed.] LIO instructions proposed by defense. Government, any objections?
LIO instructions, less than $1000.00 [one thousand dollars]
Anything else regarding 641?
[COURT IS IN RECESS]
Both sides...Going to do instructions. Who has the lead for [18 USC] 793(e), Government?
No specific oral arguments. Included as enclosures. Transcript. US v Morison, US v Diaz, US v Regan use 2003, Model Federal Jury Instructions for 793. At the last Article 39(a) Session [the Court ruled on Defense Motion to Dismiss Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II for vagueness. The Court ruled Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II are not unconstitutionally vague.] Court asked for instructions used to define the elements and the definitions in previous 18 United States Code (USC) Section 793 cases to include US v. Squillacote US v. Truong Dinh Hung [Judge Lind also asked for others, but not clear from notes if Captain Morrow was reciting from her ruling].
Those things could not find them...but otherwise, we have objections to defense instructions.
Okay. Defense come up and then Government objection. Government instructions are appellate exhibit 159. Defense instructions for Specification 2, 3, 5, 7, 10, 13, and 15 of Charge II [which related to 18 USC 793(e)] is appellate exhibit 166. Government response is 191. Defense reply is 200.
Elements. Any disagreement?
No. Just the order they were placed in.
Let's move onto definitions. 'Possession'.
One comment on Court instructions. We object to definition of espionage. He is not charged with espionage, but with transmitting Government information.
That is fine. It is in the Espionage Act.
Transmitting national defense information? Agree?
Two different [?] regarding instructions.
[Defense cites two cases. One from the 5th Circuit and the 10th Circuit. One of them is US v. (sounds like 'Sing'). I could not find or verify the cases from my notes.]
Objections. Appears glancing at both, our authority was BenchBook definition of 'possession'.
Let's look at the differences. Any meaningful distinction?
Unauthorized nature is main difference.
That language is found in Diaz, Morsion transcript...case involved a Government employee. Government asks the Court to use the Government's definition. Enclosure 1, page 194.
'Under circumstances or location contrary to law'?
If you say 'entitled to have it' will confirm [?]. He may have been entitled to have it...but not out of SCIF [Sensitive Compartmentalized Information Facility]. Defense 'possession' outside SCIF would be unauthorized. Don't believe there will be a problem outside.
Any other objections to instructions by defense?
'The national defense' can parse by sentences...based on case law. I will go down [one by one].
"However' section. That sentence to 'the purpose of this section' is 4th Circuit in Morison, and in Rosen.
Next two sentences of instruction, 'connection must not be a strained or arbitrary [one]' and 'the type of harm that disclosure of the information is likely to cause must be endangerment to "the environment of physical security which a functioning democracy requires."' is from the Supreme Court. Wilkinson in Morison and Justice Brennan in New York Times. ...Government correct remainder [Not clear what last sentence refers to, to transcriber.] The language is required for over breath...First Amendment...Government would turn 793 into 'States Secrets' statute. Defense provided a left and right boundary. Defense [gives] direct quotes from cases that we cite....Morison and New York Times
Everything else is what...Judge Wilkinson in Morison...should be [objective?].
Inform...'serious injury'...'prior restraint'?
Brennan can be used in criminal case. If press can publish...certainly if it comes to taking someone's liberty. Extent we err on caution, must be to the accused. The defense looks at what the Government is proposing and targeted harm. Government wants to make this solely on classification. Not all information is related to the national defense. Not all information can cause damage. These are majority and current opinions cited by defense.
Government, any objections?
Object to it in its entirety...reinvent wheel. We used different reply for 'however' language...wasn't in transcript. Rosen never went to trial.
...language...1071 in Morison case.
...not in instructions in case?
...[No.] In the case.
Morison says 'documents or the photographs...defense against military establishment and preparedness' It refers to the military and naval establishments and the related activities of national preparedness.'
That is in our instructions.
Language comes from Morison 1071; Dedeyan 39 to 40; Rosen 445 F. Supp. 2d 602, 622. Court asked important provisions.
There weren't instructions in that case.
'Closely held'...? 'What is not otherwise available to the public'...? Where?
In language of various cases cited. I believe Diaz...'in public realm' not 'injury to the US...' as long as there is legitimately or otherwise in the...leak information...that would no qualify. ...reason why 'closely held' to cure vagueness or unconstitutionality. [Missed.] Diaz talks about that...think Gorin...information has to be something the Government sought to protect.
...Morison, Diaz, Regan... Doesn't have to be classified to be closely held. ...instructions, five actual cases...lawfully in public domain comes from [Dedeyan?].
Government has pled...information is classified in Specifications 3, 5, 7, 9, 10, and 15 of Charge II. They have said it is classified. They must prove that it is classified.
'Closely held' different...?
To protect this from being a 'State Secrets' statute, Courts have avoided in 793 cases by instruction. When we are dealing with the military. This Court will be blazing a new path. Government has pled classified. Defense argues that if it is not classified, it should not fall under 793...and avoids over-breath.... If Government has not kept information...a container...we have a Specification of a video not classified. Government with targeted harm...regarding Original Classification Authorities impact [statements]...that same argument should apply when not classified. Under defense's view this is not information subject to a 793 charge.
Anything else regarding 'closely held'?
'To the injury of the United Stated'?
...instruction. Not all information can be used to the 'injury of the United States'. That would leave constitutional problems. If we don't reign in fanciful possibilities this is not a requirement at all if Original Classification Authorities make determinations. Diaz says you don't get free pass regarding classification. ...that has to be something 'note remote'. Dicta from case US v Lee, 4th Circuit...US v Chong, [9th Circuit]. Even Diaz supports that. Government does not have a free pass on damage issue. The Government has to show...cannot simply rely on what are very remote and vague possibilities of harm.
Completely reinvents the wheel...
So, is it the line...'likelihood...must not to...' What is the objection to that line?
The fact that 'could cause is speculative'...that instruction has never been given in a 793 case.
'Could' is not speculative...spectrum of possibility. My car could be stolen...if I don't lock it...that doesn't mean it is going to happen. Anything could possibly happen. There has to be a limit to 'could'. One could agree that the information 'could cause damage' but think the odds are slim.
Morison survived vagueness and direct challenges.
'Willfully' and 'not entitled to receive it'?
'Voluntarily' and 'intentionally' again. The defense believes this is accurate based on Morison. US v. Lee...9th Circuit.
Diaz says you do not have to show bad purpose.
We propose exact language from Morison.
How does that square with Morison?
Wish Diaz was decided differently, but controlling law...that is [missed].
...Mens rea 793(e)...doesn't mean 'bad faith'...not 'conscious choice'...covered information...?
Defense would concur with that.
...not entirely happy with Morison, but don't think 'bad purpose' relates to that.
...this is going to motive. Court will ...'discredit and conduct'... Any other issues regarding 793(e)?
...craft instructions as a whole... [The Court now considers arguments for] instructions the 1030(a)(1) offenses.
Defense proposed instructions for the 1030(a)(1) offenses is appellate exhibit 165. [Other defense filings concerning instructions is appellate exhibit] 201. All Government proposed instructions are appellate exhibit 159.
Any response to...?
...appellate exhibit 189. Objecting in its entirety. Will be dealt with in 1030 motion. ...highlight specific issues on that, that were problematic.
Let's look at the Government proposed instructions which propose 18 USC 1030(a)(1)...getting that from...including Nosal and 1996 legislative history and fashion your instructions. Any issues with elements?
...recommending element it has proposed.
Yes. Elements and definitions.
..come from Matthew Bender...
...any in defense appellate exhibit?
Part of appellate exhibit 201. Court [majority?] in Matthew Bender...for 641 as well, differences within various Circuits.
Element...48-8...where knowledge exceeds authorized access...?
Based on charges...and theory...so, the issue here have to be instructed...'knowingly exceeded authorized access.'
[They] oppose completely. ...9th Circuit and Model Instructions for 1030...incude "exceeded"... ...I can discuss why that is favorable to Government....
Looking at Federal Instructions...enclosure five...'knowingly exceeded access' proposed element no. 2. No quibble with element no. 2?
It is better if going one way or the other with elements.
Let's look at both. Prosecution [proposes] No. 1 'knowingly exceeded' and defense [proposes] 'access a computer with [?] but exceeded his authorized...'
That language that defense cites [is] Federal Jury Instructions, but case...direct statement...IRS database.
Where? Footnote 3 on page...
It is citing US v Czubinski page 40A-11 'exceeded authorized access'. The case they city supports John Rodriguez line of cases. Optional...language starts with alleged defender. My point is [it is] essentially [defective?].
Would agree with that. Unless they have another theory...it was authorized...Government premised [that theory] on Wget... Third iteration of 'exceed authorized...' provide members with guidance they need to understand the element.
Move to element no. 2.
It is hard to object to elements one by one, when they are suppose to work in concert.
There is no way, except one by one. That is actually an accurate...a person can't negligently do it.
...even in [Jury, this many refere to Federal Jury Model Instructions], Government, that is the element?
Those are based on the 9th Circuit Model Instructions.
So, you disagree with the second portion of defense element and combine the two?
Next element, defense?
'With the intent to use the information...'
...in Matthew Bender 40A-8
Where are they [Bender?] getting that?
...pre 1996 [legislative history].
No. That is post 1996.
Legislature very clear changing language.
[to defense] You need to find a case for me.
Look at 14 and 15 specific intent?
...against the US?
1030 is designed on Government charge to protect...
The support for that came from 1030 requirement.
Look at defense...next.
Defense come from Matthew Bender, verbatim.
Can I have [a copy] of the front page of all books, prosecution and defense?
Once I get back to the office.
Defense, statute defines exceeding authorized access...Government instructions contain statutory [language?]. Both sides argue statutory in it.
When defense puts in Nosal...
They don't change they reinterpret.
Key aspect is exceeding authorized access...tech or code based violation.
Parties on notice, you are going to use statutory definition.
We agree, your Honor.
Government objection? [Missed.] ...exceeding authority?
Objection on Czubinski under purpose regarding access. Not sure how you can use that, citing case favorable to Government theory. As for rest, we would have the same objection.
Understand. Government, no. 3 statutory definition?
Second sentence. Your ruling and Nosal are explained, define issue for whether there was a restriction on access. Then we commonly...[missed].
Didn't one...back with reply to Government?
No. 1030 motion we agree...goes to that. Government instruction, if it finds unauthorized software, it exceeds authorized access.
Understand. Move on. No. 4, 'reason to believe'.
Tracks language from 793 line of cases...because there has never been 1030(a)(1) in this sense, like appropriated way, because language is identical.
Yes. Again, this objection more accurately [?] this based on fact...so nature of information would be important and any actual harm. So, when Court talks about 'reason to believe' what was his training...so this instruction with this regard.
I don't...members are not in...I will probably be leaving those instructions generic.
Defense would use...other bench...being sensitive they won't want to say, 'These are things to consider.'
We can look at that later. I will probably include this.
Proposed instruction no. 5 from Government?
Part of the language, 'reason to believe' tracks 793 used in 1030, as you [ruled?] Chong; Diaz; Regan 793 or 794 cases, same identical statutory language in 1030(a)...
Object about 793(e) incorporating...?
'Knowingly' same for parties?
We provided same. Government is fine. Prefer to give more detail. 'Voluntarily' and 'intentionally' good instructions for 104.
Alright. Government realize going through the different instructions 641, 'willfulness'...793(e) and 1030(a) going back to Article 104 [aiding the enemy]. We had argument about intent...why should 'knowingly' be here and not 104.
[discussing actual knowledge?]...general intent in knowledge...knowledge is a general criminal intent.
[Missed.] [Missed.] [Missed.] ...not given statement of fact... [Missed.] ...'willfully'
Same from Morison.
So, same as 793(e). Diaz doesn't require had purpose?
...anything 793(e) and 1030(a)(1)?
793(e) and 1030(a)(1) should be defined.
...will find with Diaz. Government, I will probably not give.
We just tried to include a definition when someone is entitled to have information or not. Difficult to find case when someone is entitled to receive something.
Defense, you do not have a definition for intent?
Don't think it need to be defined?
No. 9? [Missed.]
1030(e)(12) 'person not entitled to receive it'
Defense, we haven't covered no. 3 and no. 4.
Am I confused?
Goes back to inaccurate statement of law pre 1996 [legislative history]...begins 'to intend to use such information against interest of the United States'. Because doesn't track statutory language...could be used against...and that is noted in our response to appellate exhibit 189.
Where is Bender getting, 'against the interests of the United States'?
42 USC, 1984 House of Representatives Report that was amended in 1996.
40A-7 'bad purpose' language again.
This definition of 'willfully', [is different] that the one we discussed and agreed upon. We have already discussed how 'willfully' is done previously and 'intentionally'.
'Willfully' means 'intentionally' and of... I am going to have to go to Diaz for this... Next...[missed]. Anything else regarding [Specifications] 13 and 14 [of Charge II]? Article 92 violations. Defense...BenchBook, anything additional, Government?
Just definition initial language...panel can refer to regulation.
Defense proposed instruction...take additional notice to regulations.
Defense have any objections to Government definition of terms on 27 and 28?
If i could get back to you on that. We just want BenchBook...assuming it is accurate, probably not.
...questionnaire [for panelists and alternate panelists]...
[COURT IS IN RECESS FOR LUNCH]
There was an administrative meeting with counsel in the Judge's chambers. Captain Overgaard went into chambers with Major Fein and lead civilian defense counsel Mr. David Coombs.
Major Fein's laptop computer has "UNCLASSIFIED" in enormous text as his screensaver.
...disputed questions from Court questionnaire [for panelists and alternate panelists]...will not allow members to commit prior to evidence...dispute...all defense questions.
Appellate exhibit 207 is defense questions for the [members]. Listed those 52 questions when I referred as numbered in appellate exhibit 211.
...[Sounds like Wa' deer] to inform themselves and formally challenge for cause RCM 912, to save time...in order to obtain information. We believe these questions do not state a theory of the case...basis for why.
Numbers one and two. Questions here for panel...non-commissioned officers are required to lead soldier, we believe case will bring out information that NCO did not supervise soldiers...to exercise for cause. If a participating member doesn't believe NCO chain of command and enforcing staff and taking immediate corrective steps...we would exercise preemptory challenge.
'Do you now or have you ever had'...questions 'do you believe NCO chain' would be a different question.
More semantic...was defined to get more information...what areas do they [missed]...formulate on individuals.
1, 2, and 3 all generated toward same thing.
Not all military members have the same training. With proper leadership failure is not an option. Relevant...would explore on...
Question 3 goes to theory not eliciting information.
not going to allow 3, will allow one and two. Let's look at 4, 5, and 6.
Goes to this part of command responsibility for information assurance...important is members have information regarding security clearance. Get at panel members experience and preemptory challenge. Example if combat...
Any objection to 4, 5, and 6?
'Have you ever been deroged?' Government believes those questions about panel get more to theory [of the case].
4, 5, and 6 [give] theory of the case...'should' need to rephrase...not give an opinion on what should be done.
7 through 14, 15 through 21, 22 through 25, if the Court wanted to 7 through 25...
These are awfully personal.
If they didn't want...[sounds like Wa' deer] and challenges of cause, any members bias. We as the defense have one preemptory challenge. RCM(f)(m) and (f)(n) actual or implicit bias got at from getting here. What a person watches, what they read, individuals they believe have influence. A less effective manner would be to say, "Are you biased?" Recognizing that Convening Authority has unlimited challenges, the defense believes those are not overly personal...and would use that information to follow up with...
7, 8, 9, and 10?
Government objects to 7 through 13. Don't think these are relevant for the case.
I understand wanting background. I will allow 7 through 13.
No. 14, Government objects.
Not going to allow no. 9, too personal.
There are questions that we included: 'What newspapers do you read? What news shows do you watch?'
Since you don't have questions that you don't agree to, master list then pair down.
Government objects. Not useful. Argues theory.
Defense disagrees...'What members read?'
'Who is the author?'
'More books' depends on author and believe could be beneficial or harmful to defense, then we can determine bias under RCM 912(f)(n).
What do you mean by 'or any similar action'?
Regarding classified information primarily that or byline...not about recent books, for example Bob Woodward, whether actual press...
...Goes to theory of case.
That tells panel this is about classified information or other similar actions.
They already have it...this doesn't give away any theory...the Pretrial Publicity Order...they will already know...but to extent remote possibility...whether or not any question in this has influenced you. If trial counsel felt that anything was influencing, could explore that in [sounds like Wa' deer].
Can I see Pretrial Publicity Order. The defense motion is appellate exhibit 3.
Appellate exhibit 11 is the Pretrial Publicity Order.
Pretrial Publicity Order talks about classified information. I'll allow it. No. 15, what is the objection?
Same objection. Will not determine bias.
[to defense] Why are you asking?
You can draw observation...someone taking the time to write an editor. That might be a person to take deliberate [?] in...my one preemptory challenge. Likewise in no. 16, [if the individual] only reads for entertainment, may not be correct, gives me an impression of the person.
Makes them connect to one or other. We'll create additional questions and issues.
No. 16 puts people in a box, won't allow.
'Do you usually read any other...?'
You could say, 'or other'. How relevant is how much time they watch TV, except health?
Heavy voice in deliberation room...get some information about what they are going to do.
I won't allow 'number of hours'. Government, what about 18 through 21?
Typically, questions limited in RCM 912. Getting into personal habits...how useful to determine panel...towards creating new and additional information.
Defense, can understand 22 through 25. Go ahead and tell me why, beyond scope, in my opinion.
[Who do you ] admire, most or least...event...these are questions if you were sitting down, you could see these questions being asked. Easy ice breaker. I look at [sounds like Wa' deer], you are getting opportunity to establish, and there is a divergent [?] of practices allowed individual in [sounds like Wa' deer]. Others all driven by bench in military. We give judge tall blank check. So, my purpose, when I am here to talk to member, is to make certain determinations...tell me something about them. These questions get information that I find useful in order to find out what makes them tick and do individual [sounds like Wa' deer]. If they say, "Attila the Hun' I don't want far right in punishment.
Government, do you object to 22 through 25?
Same. Don't elicit [useful?] information.
You ask every question, not going to allow 22 through 25. What about 26, 27, 28, 29, 30, and 32?
Relate...my client was 22, was young individual. Certain general observation, rash judgement. Take positions because they want to make the world a better place. We have to wait until we are 21 to drink, 25 for car rental, [in light of] the responsibility they should be given.
Questions no. 26 through 36 are blatant arguments of the theories of the case.
I am not allowing them.
Let's look at 33 and 34, "If they ever signed a petition, attended a march? General background?'
No helpful information..protest. Argues theory of case. Someway...may do something in protest.
...'psychiatric details in your family'..?
I will dial that one back.
Take away no. 35.
Government maintains not relevant and too personal.
Looking. Could change 'counseling treatment'.
Well, its very personal. I know you want to get close, but not that close.
Want to know if they have had exposure. First of all, they don't have to answer, but we ask questions that are uncomfortable in individual [sounds like Wa' deer].
Everything before if, is a bridge to far. Government?
Argues theory of case...wants to discuss on individual...
Question no. 35 and 36?
Everyone knows someone who has had emotional problems. 37? 'televised'?
News accounts. Court TV or otherwise.
Not allowing no. 37. Now no. 38?
No. 38 through 41 get at information from members...our challenges for cause and one preemptory. [My client] did not grow up in idyllic...they will hear that if we get to sentencing, important to hear how we can exercise preemptory challenge et cetera.
Having trouble with no. 38.
No. 38...experience they might have. Are they members of a service organization? We [in the armed services] also volunteer a lot...that are positive. If they volunteer time and money...
It is very broad.
Yes. Follow up. might tie to community outreach, could get to...
General question. 'Where do you volunteer?' Get at what...
If you re-phrase I will allow.
For remaining, the Government doesn't understand.
Let's look at 39 first.
'Friend...use fire department or emergency medical care...?' Getting information to use for preemptory challenge or cause.
Don't see how it determines partiality.
Ask no. 40, and not 39. Now, question 41 and 42.
No. 41 question block just considers...
...No. 41 is out, theory. No. 42?
[Coombs said at one point that defense would be hard pressed to not find someone who hasn't heard about WikiLeaks.] Public comments, former Chairman of the Joint Chiefs of Staff McMullen and Obama regarding my client, say he broke the law...Clinton regarding nature of leaks...her mission and job...all these statements are going to go to the individual. [Sounds like Wa' deer] soft way of getting to any of that. Defense thinks one of the challenges is finding someone should have known better than to throw statements out that were very prejudicial, and purposely so. And, stuff members were aware of. Members and President Obama, do not have...[missed].
'Do you believe...?' Those questions are better for individual.
I will allow. No. 43?
Prior experience. Challenge for cause. Prior experience about how things should be done.
We already asked, don't seem necessary.
Will allow. No. 44?
Hesitancy. One of the issues is that my client is gay and did serve..DADT...now lifted. The pressures of DADT and what he had to endure is important. Asking if they oppose gay marriage, but also crystalizes 'open minded' nature...of someone who may be gay.
We included nine questions about homosexuals. Number 122 through 130. We already included these.
...slight changes to 124...
...which could get you to no. 44.
No. 44 through 55. Gender identity disorder...will be an issue in case and sentencing...follow up deal with whether member has exposure... He suffered...testimony will come out and open for people to see. They sent him home to give him reprieve. His unit knew. Mental Health diagnosing him with gender identity disorder.
Just from SM4, it was SM5, impermissibly conveying facts of the case, then form opinion.
I agree these are theory. I will allow, "Will you allow...?' about gender identity disorder...
So, 'Are you familiar with gender identity disorder, if yes, how?'
If they have familiarity, 'how' will get you... [Missed.]
Does assume that we have asked that question before. 'Have you ever deployed?'
Just a follow up on how they characterize it.
No. 51 and 52. What is 52 about? Learn general fact...use preemptory challenge or challenge for cause.
No. 52, what is your concern, Government?
How would it get to...?
Using [?] RCM 912, whatever they would write during group...may or may not through individual.
I will allow no. 53.
No. 53 and following page...
Let's skip no. 53 for now.
Only other is no. 54, and then all things below 1(a)...defense, and 1(b)...Government.
Standard questions by group [sounds like Wa' deer]. Let's not put in, and my understanding...a question should go in, but just form of the question. looking at these no. 53 doesn't seem necessary.
Additional guidance seen, judge gives on sentencing...inelastic...
This is a pretrial. Far in advance. Members mindset more confused at that time, not going to allow no. 53. Will allow something about sentencing. Government?
Government doesn't think it is necessary. [Soldiers in the gallery behind prosecution laugh.]
'Do you know about this case?' 1(b)...'WikiLeaks also involved in this case, yes or no?
Like Government better, far more generic.
No. 2. Not allowing 2(a) or (b). Theory of the case. 3(a) or (b) theory of the case questions.
In summary. Allowed: 1 and 2, 7 and 8, 10,11, 12 to 15, 18 to 21, 33, 34, 38 as revised 'Do you do volunteer work?', 40, 42, 43, 51, 1(b), and that is it with one or two questions about sentencing.
Can we go back to no. 46. That was the rephrased one, 'Are you familiar with gender identity disorder?'
[4 to 6?] rephrase?
'Have you any experience with classification?' Only other no. 16 'or other'.
Any additional questions...get rid of cumulative...you are asking every...just one question in each...member.
[COURT IN RECESS]
At some point in the days discussions the Government asserted that there were two alleged classification spillages in the trial. The defense disagreed.
...Government motion to pre-admit is appellate exhibit 160. Defense?
Appellate exhibit 184.
Appellate exhibit 184 is the defense response. Government?
...classified...appellate exhibit 178.
going to do un-classified...then recess then he can bring classified motion...then TV cameras can focus on me...will be focused on someone else.
For judicial argument do oral now...and then address questions.
Un-classified...what portions are you looking to admit?
Enclosures 1 through 9, 11, 14, and 15.
1 through 9, 11, 14, and 15. What does defense not object to?
8, 9, 11, 12, and 13.
1 through 7, don't object?
Nor 14 or 15.
Can I have those enclosures and go ahead to mark...know exhibit?
I believe we are starting at 1.
Separate? [off to the side with Clerk] Mark as 1 thru...
Major Fein was reading emails during this portion of the Court proceedings.
14 and 15. Enclosures 1 to 7, and 14 and 15.
Government motion to pre-admit.
For purposes...does either side want to remove as enclosures and moving to...
Disputed 8, 9, 11, 12, and 13.
And, 10, but Government can get rid of three of those.
I said, we would not pre-admit 10, 12, and 13.
Merely evidentiary for motion.
What is left?
8, 9, and 11.
What is 8?
Information Assurance Screenshot from Army Training, User Profile, and another Screenshot of Accused's User Account dated 31 October 2009.
Where is it from?
90211 [bates?, in transcriber notes I wrote "ates"] stations attached. Army CID AIR explains where information is coming from.
[looks quizzically at Captain Overgaard]
Just for exclosures 8 or 9.
Just say...pulls information as requested by Army CID? That is for 8 and 9.
From different places, different contracting organizations.
What are they?
Joint Access Movement Record. Tracks people's movement while deployed. Have scanned ID card.
So, this data is maintained by Willco Tech? So, records...to enclosure no. 10...the contractor provided online Information Assurance to Army CID on 21 January 2011.
Looks to be correct.
So, how is this record...how is it maintained...when?
Record is a screenshot of whatever information is recorded in the database?
[AECOM? Is this NETCOM?] database, a consulting company. Background that is no. 9. [AECOM? NETCOM?] consulting maintains Information Awareness Training.
So, what is the Government's argument for admissibility?
Both are admissible and relevant, attested to, neither are here-say. They are computer generated. RCM 810(c) and RCM 801(a) '...statement...' RCM 801(b) '...person...' Computer cannot make a statement, neither of them are here-say.
Both have been certified by a custodian. How were they maintained and generated?
They are admissible on face as business records and we can have expert for panel...but they are self-authentication.
Not business records. ...they are machine generated data, three factors...whether or not was record created because of law enforcement. Both 8 and 9 fall within those factors.
Data is maintained by businesses in furtherance of mission? If a police officer goes and asks them to...that is testimony because a police officer asks for it?
Yes. Pfc. Manning said this on this dat...has data in some other format...that data is kept in probably chronological synthesizes...like the cover sheet in urine analysis. this isn't raw data. It is a synthesis. Mr. Shatski (sp.) saying wants a screenshot. They don't have a screenshot.
Isn't this just a summary? Example...
That is why we are [?] out. What is the purpose? ...that purpose. This wasn't pre-existing. This is post-referral...din't exist until trial counsel...
But database did...so, it is a query? If you are relying on ranking factor, it would be testimonial... Here where I am having difficulty...ranking document...weren't created in view to appellant to trial now is extrapolating from pre-existing database is testimony...?
No. Testimonial and not testimonial here-say...more instructional...
How does it get into the database?
When user completes...reports...then any super administrator...enter what they want and print it.
[reads] Attestation 'at or near...people with knowledge...' defense says made at behest of detective, makes...on machine, now extrapolated?
Government says this is contained...query to say at or time of occurrence...you can log in at any time...created in a database when user actually completed activity.
They could have at any time...but they didn't...Government concede when was this report created...at the time it was requested.
...[pre-existing] data to create...
How is it not machine generated data?
[ATRRS?] isn't creating these reports...they would have to go in and create it. They don't synthesize unless someone asks...prosecutors who are going to trial.
...with an eye for trial.
Underlying data created when user was using computer. Defense would fail...ranking...'Was the statement made in response to law enforcement?' [reads other ranking] 'computer generated' .. Number three, '...current purpose for eliciting...' created 5 September 2008, completion Department of Defense Information... October 2009...
...said not a business record?
Format changes...like urine analysis...bunch of numbers then cover with a memo...there is raw data...who is certifying is the person who created the report.
So, if a business maintains a database on who is taking training...makes not a business record because only pulling particular fields?
[Regarding] no. 11, what is the objection?
Joint Asset Movement Records are like toll records.
Yes. You are correct...these are reports...give me everyone who took test.
It is pre-existing.
Reliability? Three months gap as to reliability towards last few pages. Chronological back in May 2010, back towards October ["_____"? ] 28 2009. no activity January 21, 2010. Would question. Unreliable.
We would request...on cross examination [could] ask why there would be a gap.
Three month leave. He took a leave, but not for three months.
You have telephone number. Other people could go back for other [data] than [?]...[if you find a problem] bring that to the Court's attention. If I admit something, can always un-admit. Anything else? 8, 9, [11? or 13?].
Argument the same with respect to those?
So documents, logs, computer generated logs.
Making same argument...detective asked to pull data from...
Any need to go into particulars...argument is the same.
[END OF DAY]
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