Article 32 Investigation In the case of Second Lieutenant Iilario Pantano Conducted at Camp Lejeune, North Carolina, On 26 through 30 April 2005 Volume I of VI Pages 1 through 200Verbatim record of 4 bearing held in accordance with Uniform code oO? WA ike Justice Conducted at Camp Lajaune, North Carolina, on 26 through 40 April 2005 Persons Present: U.S, Marine Comps, Investigating Officer; Shae + 0.5, Marine Corps, Legal Advisor; Second Lieutenant Tilario Pantano, 0.5, Marine Corps, the accused: U.5. Marine Copa, Detailed Defense Counsel; ars Civilian Counsel for the accuseds ' 2m ME ste inee U.S. Marine Corps, Assistant Defense ‘Counsel; at U.5. Marine Corps, Assistant Befense Counsel; a 5. Marine Compa, Government Counaels U.5. Marine Corps Reserve, Assistant Government Counsel; e ‘.3, Marine Corps, Assistant Government Counsel: U.S. Marine Corps, Government Representatives ano ! tr U.S. Marine Corps, ~“watine Corps, fine Corps, marine s Stss e-——e, the Reporters.The Article 32 Investigation was convened 2005. nO: t 1325, 26 April This Article 32 investigation hearing will come to trder. This investigation is convened by order of Leu Lejeune, North Carciina, oy | appointing order dated 8 February 2005. The appointing order snd charge sheet will be marked as Investigation Exhibits 1 and 2, respectively. Copies of the charge sheet and appointing order have been furnished to the accused, both counsel, and to the reporter. Eresent at this investigation are: piuaah!, Detailed Investigating officer, ————— gi) United Sta an —_——— “Tha Legal Advisor, r Seino “J United states Marine Corps; oo Petes eet cores’ Fe al ase: ‘Tha Detailed Defense Counsel, [ aot United States Marine Compa; Civilian Counsel for f i Government Counsel, , United State Marine Comps; Basistant Government Counsel, = United The detailed court reporter, = +. Nbo had been previously swore, was present f mM. I notice you have tuo other -- «oO ——,,. ——+} sir. fen notice you have —- stant government as the ALL right. #111 counsel state their legal qualifications, status as to oath, the authority by whom thay were detailed, and whether they have actedThe civilian defense counsel wag sworn. To: acted in any pe i and (ea prema eiy, gual 7 in any disqualifying capacity? —__ —$_—_ Myself, md Fhave been detailed”to thiz tae PETET OP -NySSTe, the Military Justice Officer -- Gbjection. [t's not a court-martial. =~ they have been detailed to this Article 32 heari, by myself, the Military Justice Officer, Legal Services Support Section, 2d Force Service Support Group, Haring Corps Ease, Camp Lejeune, North Carolina, All three of us are certified and sworn under Articles 27(b} and 42(a) ef the OCHJ. We have not acted in any ilsqnad fying manner which might tend to disqualify us from this Article 32, E— — a = ‘ umf om certified a. ‘Led accordance With Article 27[b) and sworn in accordance with Article (a) of the Uniform Code of Military Justice, and 1 haven't | Titu wes awogn, and neither of! them have acted in any manner which may tend to disqualify in this ca: T detalled myse}f and both of ttem to this case as the Senior Oefense Counsel aboard Camp Lajeune. my name is saint aS fe eas, — aa —_ I've previous l Be of certified “Th the Unites states Corpd>—nowpver,' I'm here in my| capacity, afd in that capacity, practice law before the Supreae Court of the Speen of the Court of Virginia and also the Strict of Columbia Caurt of Appeals, United States Court of Appeals for tie Armed Forces, and all the evice courts of criminal jappeals. 7 I'm prepared te be sworn, Tam not certified under 27(b), but I have bean sworiin under Article 42[a) of the Uniform Code of Military Justice. I have not acted in any disqualifying capagity. 7 - At chia point, I understand that both the government and the defense would like to voir dire. Government, you may proceed, L Juve you sean the witness list in this case? Yes, I have. Do you personally knov any of the witnesses listed 1 the government or the defense witness lists? recess don't to go Wo, I do mot. Os you know any of the counsel in thia case? fio, I do note] What is your M037 i'm anf 9 mat'al £4 ‘Yes, it is. i £ “4 a i ow 16ng nave yau.been an jj t Six and a halr years, My original mos was as anf{— "= pid you ever serve with me? Me, I did not. Do you knoe —<— Mo, I do not.Tundaretand that the person t turned my rifle © over to ig # friend o€ yours,| Yea, Will that affect your participation in this case at all? No, it will not. : who vas formerly a military judge & fons Circuit, Tunderstand is algo a friend of yours. an acquaintance of yours. Will that affect your participation in this? Wo, it will net. Bow many combat ‘copre have you cpepleteg?. ' ! Five ctepleceaf——"P What were your billets in those tours? ‘ing Twas a ast comiat tour was for lat Battalion, on mae During yhat eime period dia you serve in trag? From dune 26th of 2004 until January 16 of 2005. During time in freq. did you have any interacti with me? No, I did not. ' ' Sid you have any interaction with the accused? 5 é No, I did not. So you see any reason why you cannot impartially ovaluate the evidence presented to you during this invest igat: . No, I do pot, ‘There's been various versions of events presented inthe media in this case and wey publicized. Have you seen any of this media o ape? UE to, I have not, Do you agree not to consider anything you pay or nay not have heard or sea about this cane? Yes, I do agree. bo you agree tofonly consider the evidence presented in this investigation and to completely disregard dence? any cutside comments on the evi Yes, I do, No further questions, Actually, it's aa who is going to the voir dire, \. You waht over your @ilicary Cranes SESS, oves Hbackground and your conbat history, ‘Would you please tell us brigfly your entire military career? to: Yes. I started off as an officer candidate in The Basic School in T greduated from school in October of + Twas a rifle platoon comander in - until 1991, where I wos an @1's platcon comanger until 1992." In 1992, I ‘becane the operations officer for Marine corps Recruiting Station Eastern Mew England; in 1984, 1 becane the executive officer. I attended Amphibious Warfare School in 1995. In 1996, T was Commander for Bravo Company, lat Battalion, Tth Marines. Subsequent to that, I was Commander of Charlie Cempany, 1st Battalion, 7th Marines, from there, I was transferred to Marine Corps Combat Development Command. I worked As Aseasment officer of the 1iities Assessment Branch. I was also the branch for the Marine Corps Lessons Learning System, In June 2000, I started training as a foreign area officer. ‘1 graduated from Naval Post-Graduate School in 2001, Foreign Service Institute for Language School forHind, in 2002. I artended the Iwas a cifle pRebile. Iwas with at that point, that's when the galled. 1 your dul; Tos As the ‘ AL 21h, 2004 until August sth, 2004, 1 was ° Task Force Hunter Indian Command and Staff College in Wellingtoa, in Tamil Wada, India, 2002, graduated in 2033. In October 2003, 1 Feported to Gth Marinas. In Nowember of 2003, © became the + Okay "and then it was in dune of t you deSTEyaa to rraq? platoon commander for Task Force Grizzly. We were the lead elament into "mail, foot We: secured the breach site for Task Force Ripper, as hey prosecuted| further north’jinto Kuwait, and then we attacked seiped the Al Jabar Airfield. And cease fire was Okay, And just please tell me abour i an a battalion executive officer in Iraq from June of 2004 until January 2008. tam the #0, from July the West in Hadithah, Iraq, which ig a 630-man task force. I was nission for eight cordon knocks, I was also along on another four or five cordon » and T was -~ again, a6 the executive officer, 1 was the ‘ a8 we deployed to Fallujah for Operation Tandem Fury, Fallujah. ane A: and you've tean serving as the ‘since you came back in January Tor Yor, I have, A, ald -ctute, i at Be an explanation of any train you could please give bg that you've had asit relates to rules cf engagement from Gulf War One, Before we deployed into any contingencies under any Probable combat zone, we received rules of eegagement training. I can't off the top of my head specifically state you what the rules of engagement for Desert shicld/besert Storm were, a ost ape| How about training that you received che RGIE‘s before you went to Iraq the second tine around ag the executive officer? Gkay. ¥ only went to Iraq once. I was in Kuwait during Desert Shield/sesert Storm. ace okay, Oe Skay. In Ireq before we deployed, both the -- you receive ROE training ¢uring your SAS training both -- we did a SASO Fx here aboard Camp Lejeune, Apeil of 2004, Every service mesber who deploys into theater gets a Ccrr-7 ROE brief in Kuwait before they actually go into Iraq, =a What Gays vere you at gAg0, Tr March Air Force Base from the -- I believe it was th lth of April to the 2§th of april. i od bath ot Kates, =y —— Toe From the 30th of March until the 9th of March -- the Sth of April, apc 1 = Sah Who conducted the SA50 training bere? Tos 34 Tank Battalion was che training support unit. scenario, I believe, was based off the March Air Force Base scenario, aoc Did you receive any training regarding ec “Tera: handling? Tor Yea. During the SASO Fx at March Air Force Base and then an deployed into theater before we left Al Asad, before the battalion deployed up to Hadithah Dam, is where wa were statiened initially.There was detainee handling classes given as 4 requirement to deploy further into theater or further into country, RCT-7 had a mandatory policy that the battalion receive detainee handling clagaes, anc: who was it that taught those classes? ror" Off thetop of my head, I cannot remember. apg Marines? Tor Marines. a Were they cawyars, if you know? 11 Yes. Thixg wag the staff judge advocate for RCT-7, also my = that deployed with the battalidl, kL ape L Okay. ©, the promecuter a was detailed to us as cur for ist Battalion, 8th Marines te frag. *] anc did have a lot of contact ee ieee AE Shey, bid you Gevalop a precey close : " relationship with him? Aworkjng relationship, not a personal relationship. = Did you conmult him about this article 32 Tearing TOs No, T have aoe, ADC fF (Pid be atcenpe to speak to you about it? ros No, be did not, ane 2 "J wnat types of training did you receive in vehicle searches?During both the SASO Fx here at Camp Lejeune and the SASO PE af March Ale Force Base, there were periods of instruction on vehicle searching, ae [ J wo taught chose? 20: . Tt was Marines who tasght those, Se Fad neorpnce anaetn: = TO: , Mo. Tos | A training cadre from March Air Force fa I bali f it was the Marine Corps War Fighting Lab that was the training cadre out there at the time, or Marines were TAD cut there as part of the Marine Corps War Fighting Lab and Project Metropolis, { ? apc * When you wire in Irag, did you have any PerdGHal experience handling decainees? Tor San you be a little bit more specitic? anc LF ites you ware over in Trea as ——— did you have any personal experience dealing with ‘ doeaipene? F Tox Did I myself physically put sy hand on a deteines, 4, that what you're asking? ———nt ADC Mo. I'm asting if you had any cL interaction with people who were handling detainees? 0: Yes, I did. a Did you supervise anybedy -- 10: Yes. I did. anc WR okay. Please toll wa about any ivenent you had ag it relates to detainee handling in Traq. Tor During the cordon and mock on -- I believe it was 9 July, we detained one male in his house, Duringknock on 31 July, detained one male in Under cordon and knock on, I believe it excuse my, § AUgUST, detained one male + Ina cordon and knock in September, i which mot -- I was just -- I was pot the aisslon commander, we detained two males at their place of residence, Also during the Battle of i Fallujah, we detained == cee first day on a patrol, i we detained two males insife their house, Ape ho Amd which procedures did you follow when detainees? tor * In terms off ax See Whar did yeu use ag you basis for how you “were Supposed to appropriately handle those detainess? TO: They =- the Marinas that handled the detainees used ' the techniques they ware taught during born SAO Px and the classes given ot Al Asad Air Force Base by oT cies of instruction given by by the SJA for 7th Marines. we 80, PETE OF our = we head what we called refr: training, restart training, monthly ‘ training, Ag part of that, detainee handling procedures was given ta the Marines in classes by Captain Nodine. a fl Fiza aia fosee al secompany you on these ‘cordon and k Cpanel 701, No, he did not, BDC re hayes ei ella ea during the handling? Tor ¢ Mor == F do not believe so. Wa. ane arse you ever detain anybody as a result of sl 7G 4 vehicle? 10s Was I aver present when a vehicle search was accomplished and a person was detained? Is that the question? : —_— os ove. 1fo, I was not. Was anybody detained as part of a vehicle search while you were over there? TOs tes. ae 1 Okay, How wore those situations handled? TOs as Twas not present when it happened, 1 could only ' speculgte on how the searches were -- the VCP's or ~~ the detainees were taken. So I can't really speak to that, to how they were physically taken, ane Aren't those significant acts that are briefed up to you after it happens aa the executive officer? rot Yes, they are. But I was not there, so T can't say tira how it happened, Be Chat were your instructions to your —— raztnas”on how: to conduct vahicle detention operations? Tor My instructions? My personal instructions or the instructions of the company commanders? ADE ao instructions of whoever de was who was ble for giving inbtructions? qos The normal standard operating procedure for the bat “a, but I per: a £ each or each z t brie Hess they it on all Ree operations, because I was sot there. To hay. But you-re assuning they ware following some sort of an SOP? : Tor Dc And was that an SOP that you assisted in putting in place? TOs Mo, Le was mot. Are you talking wam it an SOP that t actually helped drafted? ilT'm talking about you intended for it co be used by your bartalien and were aseuming that it wos being followed? ———_ __ then qo: Tf dt was directed by the” = wan followed, yas. Ra — ape | - = Do you know whe wrote itr Tox Who wrote the standing operating procedures? 1 believe the ones we followed in Iraq came from RCT-7 —- abt —eee- Do you know whether or not those were the sama procedures or the sane ACE's that were in place ? in Aprilvof 2004 in Iraq? 101 Being that ACT-7 was there during April, I believe they would be the same. Again, the lst Marines which had a different AO may have used a different c= 8 modified version of these procedures, not the ROE. The ROE would remain constant. TOs Yes. ane mee, Okay. And 90P's may change slightly, put cna up bo On-scene commander to sake that determination? qos Yeo. Well, SOP's modify as tactics, techniques procedures change both'oa the friendly side and the afemy side, SOP's change and modify, So an $0P that was in place for OIF-I may not have been the sane SOP that pas in place for OIP-rr. —— ape | 1! Okay. and that's based upon essentially trial and error situations as it actually happens wben you're doing these things for real? zo ves, = # og nn sere there deviations or modifications __trom your SOF‘s as your time went on over there, 12T00 ‘There were adjustments to the 50P'g. Yes. gi Did you consult ‘any legal authorities prior Eo making adjusteents to those ROE‘s? 10s Yes, we did. ADC ——at Whe did you conmule for that? = ee 10s Our and with Es —- WETERSVEr Toymmence: vuele, vec we ware working for at the tine, aD 1 All right. So, essentially, what's ng is you're giving the on-scene commanders the authority te exercise their om judgment during these operations? Sbjettion. Counsel is making an opening statement, What does this have to do with voir dire? anc sim asking hin what his knowledge is of “# becouse that's a critical issue at thig particular =- The commanders all had authority to make cane determinations that fell within the rules Tor Ys of ie. wee oe Rte com TO. Yes, I did, ape 73" cy Did you have an tuniey epeecnos that wore given of zor | ves. r aut. ape When you were at SASO training, did your involvement include attending fireside chate? tor Mo, it did.not, apc) | Do you know what I'm saying when I'm ua| talking about ‘firesiée chats,” gus! Yes, I do, “ot Okay, What's a “fireside chat'? Tow Te's when 6 commanding officer or 4 senior officer a senior enlisted comes and speaks to the Marines in 4 more informal environment. wef 7 Kind of around a camp fire or something a Righe, ocr Ss: object again. I‘m mot sure how this affects your ability to serve as an investigating officer. ror T'll allow him to continue with his questioning. ap [ota you have any inpot on what was discussed at the Fireside chata? Tons I just Stated 2 was nct at any fireside chats. ane [ A But I didn't know if maybe you had input Sn WHEE was being discumsed at those chats? nor Wo, I @id not. apc ft “t Because I mean, you can direct -- —- i To. vo, tata not, ros + that certain be discussed but not be present. Right, T did not. — : i Whe decided what was discussed’at the EIE@STGe chats? — _ there was no fireside chats given while I was at SASO PX nor while I was in Irag, a¢ f don'e know =~ I really don"t know what you're talking about with fireside chats, Bo you know how it ie that ldyou Pu were selected to secome che,/I0 tq this case, siz? Wo, T do not, aot ——~—- Have any reporters or civilians attempred ts speak with you about the case? #0, they have not. Tor ape | Have you evar worked with NCIS in the ot? roF Tor No, T have noe, anc [ * So, you haven't had any involvenent with - wOIs = Only -- considering investigations as the Tos ‘The only involvement I've had with NCTS ds when oe given me reports or an investigation they've done, © anc uw? Okay. 9 you have had interaction with NCIS concerning criminal matters? I'm mot talking about this case, . . I'm talking about NCIS involyamon Ton T've not consulted them on a Particular case. Bur the they've given ne reports on cases they're working that affect Marines in my battalion 1 ane r— wear f, your impression of chef Tor A professional service. ane [ + What are your impressions of their ‘ ——peaETTitiss? Os As bo what? ape oa investigative agency. i i eee isTos T believe they're a peofessional investigative organization. apc —_ Oo you have any law enforcement expariaite yourself, TO: Yes, T do, metry —* Gkay. Whar ds that? tO: | For a year, I was working with the Federal Bureau of Investigation from July 1983 -- excuse me, July 1982 to July 1583, ane FP hat were your duties at che J ae was & communications clerk -- communications operator, ave [ What does that mean? mm * t worked the radios, ABS a + So if a call came in, dust es BE, me 20s Yes eel” ae Wo talked about the press. Did you discuss the Article 12 hearing with anyone besides your legal advisor, TO: No, I have nor apg TD And the iegil sdvisor LS aera mo * Yes, it ps. poy ae ” Okay. He's sitting right over there in ; = apc ' Th Back (indicating) ? Or jf Tes, ha fa. ape [nat were the iseues that you discussed wig To. | Mostly piocedural issues on how the court should be Fur -- oF bow the investigation should be run, the 16Scope of what my bounds ar@ ag an investigating officers. What do you feel the scope of your bounds are a8 an investigating officer? zor it's to evaluate both the charges and the evidence testinony and conduct a fair and unbiased appraisal of Both the charges and the evidence. aS Are you aware that you, yourself, have Gt : to order evidence be presented or zor! vas, 1 ad F ang nn bo you intend to order or produce any — -gagence, —— tor | at thislpoint, without hearing the testimony or séei the vice Tt can't assume that f would or wouldn't, —_—_ anc So you have absolutely ao knowledge about — “THETZase as we're starding here right now? To. Wo. ae — IR wopody nas presented you with any - “Gecumentary evidence ar anything like that? To I've seen a list of the witness, both from the defi and the government, woe Did you speak to any of those witnessesg ro. No. I have not. ase "ave you read, heard, or sean anything * about this cage in the news’ Tor I purposely avoided it. ane 7 “at do ygu mean by “purposely avoided aecte Tor As the Article 32 officer, I wanted to be completely impartial and fair, so I didn’t want to read any 1?reports. 1 didn't wast to ilsten to any interviews from one ide or the other, so I've gone out of my way to avoid reading anything about this cage. I Did anybody give you any heads up as to when certain things about this case were going to be on TV of in the news? Tor Yes. There was an interview on Tv on March -- I’m n sure what day it was. Iwas told it was going to ba on therf, so I purposely made sure I wasn't == ! didn't watch the interview, ane @ — Who told you it was going to be on there? TOs ‘A friend of mina, Kevin Trimble, the $-3 for iat Batt don, @th Marines, ane -——— ' "ata feu have any other discussions with foout this case, tO No, I did noe, ADC J Did you do any of your ow research into ——“iny "Isses as it relates to this cose? To. ‘Other than just breese through the -- I read through the Nanual for Courts-Nartial, ape What did vo read in the Manual for —Sthirteswarcial. |_ or Exactly what the chargee are and what is contained 41 each charge. Also, I reviewsd whar sy duties ware ' under 409. ape | 1 Chay. go read B.C.M. 405 and che _“"BHiitive articles, Cos zor! ves. ' ane Tip as were provided a copy of Thy chaige sheet iteelio i wait Yes, I was. anc (ds was there anything else chat cane with chat?‘There was an appointing order. BOs ace and chat‘s all? mos That's afl. a ees Did you ever have any discussions with anybody in the 2d Marine Division concerning this cage? Tos Wo, Z have noe, apc Not up on the ataff up at Building 17 — Tor Hops, The only person I had a discussion with on th cage was the r eal XO, when he told me I was being appoint 1a 32 boazing, péficer. ADC eee! ORs. What cd he veld you? ror He told we f was being appointed as the article 32 . hearing officer. anc ~+ te that Le5 — ee you any indications as to What hethought was gcing to happen at the 327 my Tor No, he did aoe, A day -- two days later, I was Selivered the appointing order and the charges? Ape ‘okay. So, ha walked up to you and said, =p you're doing 'x,'* and than he just Tr and walked away? tos Tt happaded in his oftife, Twas there for 4 wo just returned from the advanced party. He told me 1’ that I being detailed as the 32 hearing officer, ape | Bid he brie! you oa what the case was aout? 01 No, he did noe. i ———__. : ape So, he just said -- this case ia —— =happening, and you're on ie, Tor He didn't tell me who the individual was in the case | He just said I was being detailed by the Division aa an Article 32 hearing officer, a —" Bid he tell you what he was being charged tos No, be did not. Two days later, the cha: and the appointing order were delivered to my office. —— aS 4 and nobody whatsoever except . approached you to talk abowt the cane? 20% fie didn't approach me to talk about the dase, He 4 called ne to aay that there was an interview being shew on TV. —e ape So omay, sur other chan that, nothing. toe tho. ape (TP nia you approach anybody? 0: Me, T did not, anc a fave over $at a8 4 member at a arma, A 10 No, I have net. 10 rarepa ee ASS BE as # renter of an 08 tea, t havel, ape Tt tow many cies? ro: once. ape vat wns che nature of that case? zo: tt was an adnin sep board for a pattern of sisconduc in 1999, Do _you recall what your recoamendation 20wan? TO Yes, I was -- yes, I do, — is toy, sacar that the Marine be ey ba separa with an honorable -- it wag either an honorable or General discharge, but I did not what was it, ans an OTH. mal = Seer! faMtvou evar had the opportunity to serve as af BOs _7 t have moe, acc ("12 this your tirst opportunity to ssrve an an investigating officer at an Article 12 bearing? Yes, it da. : =e When you were at yours Sduintstrative board, ware you ever challenged off that t penal? id anybody sake n chalinegy te cry eo got you ff of the panel? Ton Mo, they did net. ape — So, yyou Were never disqualified? TOs No, T was not. aD | Nave you ever been called co serve on 4 —~eivilian sent Ts No, I have not. a you, yourself, ever been involved as EBS viet in oe 4 criminal proceeding. mor t anc _ Gkay. Could you please briefly tell me SbOue ehat. jl , ae =" qos apcil of 1997, my house was robbed, 1 was deployed t from Twhdrynine Palms up to Fort Irwin for a month. aLi come back and my house had been robbed. within a couple weeks, they caught the two individuals that did it. I went to the arraignment and the hearing » where they pled guilty ot the hearing. —/ Was this 4 military -- It was civilian. Was your family home at that point in No. F tina, qo: i Go not have & family, I'm dingle. a Co © Okay. So, basically, there was nobody in . your i. There was nobody in the house. The house was empty fora month, and a couple of guys robbed it. aoc ff J Oid you get your stuff back, yea, 1 aia! =... Now, you understand that Lieutenant Pantang is not required to even offer any evidence and bas no,hurden or Oo duties whatsoever as far as this investigation? Tor Yeu, I understand thar, ADC | i, . Are you aware that Lioutenant teempted to waive his Article J2 hearing? BO: Yes, I an, anc @ ———" bqw aia you learn about that? Tor From the legal advisok, aoc aad, What discussioss did you have with your egal advisor about that issue? 22ror There wasn't any. Ha just said at one point, the defense had tried to waive the hearing, ————s aD - ss! How did you feel aboyt that, bt Not kyfowing much about the case, I'm not gure what - T didn’t have an opinion about it one way of the other. Sy! Does that save any impact on your ability apc + “ESET Pairly and judge this particular hearing inpartintly and make an -~ Or No, it dogan't. ace Does it have any impact on Be rsteodte? _ ro: Mo, it doem'r, ane 7} Did you have any discussions with the eam isor concerning any fact# in this case? to: No, I have noe, anc Do you know if he knows anything about — “Yl facts in this case? 108 T do not know. Has he offered any opinions concerning t# in this case? Ne, he hasn't. you feel any pressure te sake any Do Werticuiar recommendation oh this case? Mo, To noe. Mow, you sald nobody has approached you this hearing prior to today, De t expect) that anybody thinks char You"FPhoing co doa certa: thing? Tor Mo, I don't. 1 ape (|...) Rave you had any contact with the 2prosecutors outside the presence of the defense lawyers? Tors wo, 1 the not. the poly compete, Tire pad wich the prosecutors has been the E-mails which the def has been carbon-copied on, the correspondence. apc = 1 No phone culls or anything like that, : I Tor No, I have not, me Do you know who it was that faxed you the tation, convening the Article 32 (sic)? ros Te wasn't faxed. It was actually delivered. AOC the ad that? Tor Ido not, iene. anc swan it delivered to you personally? Tt was on Sa eres to my adjutant. ADC L J Did you have a discussion with your t aboue it? -- it was in a sealed envelope. Ha He lant pgn tho envelope. He just put it in my in — What are your personal concerns about nerving as the investigating officer in this hearing? ; t00 The only concern I have -- I don't have any concerns. i just want to ensure | do a fair and unbiased evaluation of all the evidence, apc eet You don't have any reservations about Ay F . . 108 No, I do pot. an a aa You indicated that you had previously been sworn under Article 42(a). When did that happen? MMor Last week. a | Who did that, Zor a | Where did that take place? Tor + = That took place at the Base STA‘s office across the pertisa: ioe, That waz in preparation for this earing. nor ar! Okay. ho decided that was going to tor T did. 7 So you just called him up and said, +r would Tike you to swear me in"? wen I was looking Ehroggh the mules for Court-Martial, it locked’ to ma, Like'r needed to be sworn in £0 preside ap the Article 34 hearing officer, ane be you know who had the authority to —SEW8F OF not to swear you in? mo: any SIA. as low aid you learn that, {— = To. I learned it chrough (— Soa; anc [ you have any duties or anything else chats elie on in your life which would prevent your full concentration on the facts as presented in this case? Ne, I Ab por; why you apc _ can you think of reason ShoaTe Mot ait as the 10 in this case? No, I do,nor. ——""" The defense sounsel sent you a request to ~~ Brodie documents. What ateps did you take to 25secure those documants for this hearing today, TOs! 1 detaithd -- 1 direczed the prosecution to provide these documents to the defense, ane [ a Bow did you do that, Fr to:" Vie B-miil. acc (_—_""")) and you cced the defense on this E-mail? TO Yea, I did. ape ___ Okay. Are you aware yee; that we do not ae “parsonai7Tusiness notes, Mirandas, and writings Prepared by investigators in this case; that we do Rot have access to all relevant personnel records or Potential witnesses who may testify in this casa, a che most recent fitness report at that we do not have any copies of Nay slides, or any briefings that were given by that we still do not have a full copy at the written rules of engagerint that apply to in this case; that we eelligence reports that that we do not have any documentation miintained by = governmental agency oon o£ 15 April 2004; that we do of the A --"» Tequeste within two weeks following the shooting which dealt With rosters cqncerning who was present on that cordon and knock operation, that we | Aleit tla any copies of orders iggued by che of or of the Jd harine “Diviiron-ce-tnemarines of thiting those Marines from speaking to the press; that we don't have copies of all reports of allecaticns of detainee abuse originating from from OIF from 1 March 2004 until October 31, 2004; we do not have fell_color copies of ali photos in rhe ngesession of rhe S the gow r the identity of ‘MEBJ-0370 nor that person's contact information; that we do not have copies of che accused's E-maila i contained on the CO mentioned in the discovery requests: and that we db not have these things as 26we're standing before you today, f zor ‘No, I did not know that. I was never requested specifically by the defense to see if those t! a . were available nor was I informed thar they were not i deliverkd to the defease? i bs well, LP sdat if 2 told you chat on 7 March 2005, Specifically sent to you ‘ ‘nd fad to you this exact request that f just read to you verbatin? or From that, I directed the prosecution -- the * government to provide. Since then, T have pot received it -- they had said == specific things thkt {just read @ff stating that you had act received those -- anc apc ' (So empentially, that's news to you, what just told you, Os ALI the things you!had just read off? 1 had never - the defense has never informed me that you had not received those. = | it se ed ek ten we Lh ask: baat: vousnte order them to obtWit this information for presentation during cha hearing. 01 fc His thin information that they're “requesting atailaple? cr eg! everything that's in the possession of the Prosecution has been turned over to the defense, That's number one, es ape [ i That's not the standard though ae everything that is reasonably available and we were able to obtain in the defense request bes been turned over tc the defense. Therefore, everything alse ig not reasonably available, Additionally, the Article 32 nearing itself, as stated in R.C.M. 405, serves ag a means of discovery itself, and there's no gpecific requirements fo turn over the things that they request 27ee haves YOU Bade everything hat you've available to you now and that's reasonably available te the defense? r have, Thank you. anol wert, bend son guing to object to that @@ that's not the standard. You ean ga and you ean have produced anyching that you think is felevant and isportan:. And f would alag indicate that we have not seen anything concerning what records custedians that they've talked to in order te secure this informtion. And whether or not the government has it or act is a big distinction as to whether oF not the trial counsel hag it, It's vary waty just to say, “Look, I don't want that right now," afd then the trial counsel doesn'r have it and then we can't have it, but it doean‘t mean that it's Rot relevant or that it's not important to the determination of this case. And t would chink chat certainly you con see by the nature of the ites 1 Fequested, it probably is not an outlandish request to ask for the rules cf engagement that covered somebody ts conduct wheae being charged with violating those rules of engagement and murdering somebody, pokey. Your ebjection ts noted for the record. 1 wi just inform everybedy now that I will not rule on any objections. I want those all provided to ne in twelfing. They will be officially noted for the record, Provide those to me in writing within four days of the terminatioa of this hearing. anc a | Mould you Like to have an additional jcopy of ense's discovery request i Io: Tes. oC en) the ony steps that you took to Broauce any’ documantation was sending an E-mail atter the initial defense request fer documentation cane out? Yeu. I directed the gevernment to provide you with all the requested docunents. 28