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Defense Evidence Request Manning

Defense Evidence Request Manning

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UNCLASSIFIEDI
IFOR
PT]BLICRELEASE
IJNITED
STATES
V.
MANNING,
Bradley
E.,
PFC
u.S.
Army,
Headquarters
and
HeadquartersCompany,
IJ.S.
Army
Garrisor,
Joint
Base
Myer-Henderson
Hall,Fort Myer,
VA
222II
DEFE,NSE
REQUESTFOR
PRODUCTION
OF
EVIDENCE
DATED:
22
Novcmbcr
2011
1.
On behalf
of
PFC Bradley E.
Manning,
his
civilian
counsel,
David
E. Coombs,
requests
the
productionof
the
belowlistedevidence.
The
defense also requests
that the
Investigating Officer,
following
reasons:
'
include
the
below
listed evidence
in
his
Article
32
notification
letter
for
the
a.
In
order
toinquire into
the
truth of
the
matter alleged
in
the
charges,
consider the
form
of
the
charges, and
assist
the
Investigating Officer in
making recommendations
as
to disposition
of
the charges.
See
Rule
for
Courts-Martial(R.C.M.)
a05(e);
b.
In
order
to
serve
as a
means
of
discovery
for
the defense.The
defense
has
repeatedly
requested
the
below
discovery
in this
case,
but thegovernment
has
consistently
responded
with
a
blanket denial
of
the
defense
request.
See
R.C.M.
a05(a) Discussion(statingthe
"investigation
also
serves as
a
means
of
discovery" for
the
defense);
R.C.M.
a05(gxlxB)(stating
"evidence,
including
documents or
physical
evidence,
which
is
under
the
control of
the Govemment
and
which
is relevantto the
investigation
and
not
cumulative,
shall
be
produced...");
c.
In
order to
presentmatters
in mitigationof
the
charged
offenses. R.C.M.405(f)
(stating
anaccused
has
the
right
to
present
evidence
in
defense,
mitigation,
and
extenuation);
Article
32(b),
Uniform
Code
of
Military
Justice
(UCMJ)
(stating
an accused
may"present anything
he
may
desire
in hisown behalf, either
in
defenseor
mitigation,
and
the
investigation
officer
shallexamine available
witnessesrequested.
..");
United
States
v.
Garcia,59
M.J.
447,451(C.A.A.F.
2004)
(ruling
that
an
accused
has
the
right
to
present
anything
he
may
desire
in
hisown behalf
atan
Article
32
in
defense
or
mitigation);
2.
On
18
January
2}Il,the
defense was
notified
thatPFC
Manning,
at
the
direction of
!
,
was
placed
in
suicide
risk.
This
decision
wasmade
over therecommendations
of
and
the
defense
appointed expert
.
When
PFC
Manning
was
being
ordered
to
surrender
hisclothes
as
part
of
the
unnecessary
suicide
risk,
the
Brig
made
the decision to videotape
this
event
along
with
an
interrogation of
PFC
Manningby
and
others.
On
19
January
2011,
the
defense
filed
a
preservation
of
evidencerequest
with
thegovernment
and
a
request
forproductionof
the
video.
The
defense
believes thevideo
will
support PFC
Manning's claimof unlawfulpretrial punishment.
Thegovernment
has
yetto
respond
to the
defense
request.
^See
R.C.M.
a05(e)Discussion(statingthat
inquiry
into
UNCLASSIFIED
I
IFOR
PIJBLIC
RELE,ASE
 
UNCLASSIFIED//FORPUBLIC
RELEASE
other
issuessuch
as
legality
of
searches
or
the
admissibilityof
evidenceisproper
by
an
Article
32
InvestigatingOfficer).
3.
The
defense
has
previously
requested
a
copy
ofall
adverse
administrative
or
UCMJ
action,
all
supportingdocumentation,
and any
rebuttal materials
to
such
action
based
upon
the
15-6
investigation
conducted
by
or
any
othergovernmentalinvestigation,
with
regards
to
any
individual
that
was
thesubject
of
such an adverse
action
in
relation
to
the
allegedleak
of
classified
information
in thiscase.Theprevious
requests
included, but
was
not
limited
to, the
following
individuals:
The
government
has
so
faronlyprovidedinformationin relation
to
4.
The
defense
specifically
requested an Encase
forensic image
of
each
computer
from
the
Tactical
SensitiveCompartmented
Information
Facility
(T-SCIF)
and
the
Tactical
OperationsCenter
(TOC)of
Headquartersand
HeadquarterCompany
(HHC),2nd
Brigade CombatTeam
(BCT),
1Oth
Mountain
Division,
ForwardOperating
Base
(FOB)
Hammer,
Iraq.
The
defense
has
previously
requestedthese
items
in
discovery
and
filed
a
preservation
of
evidence request
with
the
government.
An
inspection
of
all
seized
governmentalcomputers
from
the
T-SCIF
and
TOCwouldallow
the
defense
to
provide
evidence
that
it
was
common
for
soldiers
to
add
unauthorizedcomputerprograms
to
include,but not
limitedto:mIRC
(a
full
featured Internet RelayChat
client forWindows
that
can
be
used
to
communicate,
share
,
playor
work
with
others
on
IRC
networks);
Wget
(a
web crawlerprogram
designed
for
robustness
over
slow
or unstable
network
connections);
GEOTRANS
(an
applicationprogram
which allows
a
user
to
easily convertgeographiccoordinatesamong
a
wide variety
of
coordinate
systems, map
projections
and
datums);
and
Grid Extractor
(a
binary
executable
capable
of
extracting
MGRS
grids
from
multiple
free
text
documents
and
importing
them
into
a
Microsoft Excel
spreadsheet)
to their
computers.
Thegovemment
has
used
this
alleged conduct
to
charge
PFC
Manning
with
two
Specifications
of
a
violation
of
Article
92.
5.
The
defense
has
previously
requestedany
Brady
or
Jenclcs
material
in
thegovernment'spossession.
Brady
v.
Maryland,373
U.S.
83
(1963)
(holding
that
dueprocess
requires
the
govemmentto
turn
over exculpatory evidence
in
its
possession);Jencks
v.
United
States,353
U.S. 657(1957)
(holding
that,
in
a
criminal
prosecution,thegovernmentmay not
withhold
documents
relied
upon
by
government
witnesses,even
where disclosure
of
those documents
might
damage
nationalsecurity
matters).
Under
military
law,
the
trial
counsel
has
an
affirmativeobligationto
seek
out
requested
evidenceby the
defense
that is in
thepossession
of
thegovernment
even
if
that
evidence
is notalready
in
the immediate
possession
of
the
trial
counsel.
United
States
v. Williams,
50
M.J.
436,44I
(C.A.A.F.
1999); United
States v.
Bryan,868
F.2d
1032,103619thCir.
1989);
UnitedStatesv.Broolrs,966F.2d,1500,
1503
(1992)(thegovernment
is
considered
to
havepossession
of information
thatis
in
the
controlof
agencies
that
are
"closely
aligned
with
the
prosecution").
The
defense
specifically
requests
the
below
listed
information
T]NCLASSIFIED
I
IFOR
PT]BLIC
RELE,ASE
 
UNCLAS
SIFIED//T'OR
PUBLIC
RELEASE
from
thegovernmentthat is
in
controlof
agencies
that
are
closely
aligned
with
thisprosecution.
The
trial
counsel
has
responded
with
a
blanket denial
of
the
requested
information
despite
thefact that
this information clearly
impacts not
only
on
the
form
and
proper
disposition of
thecharges,
but
also
represents
clear
Brady
and
Jenclcs
material:
a.
White
House:wastasked
to
lead
a
comprehensive
effort toreview
the
alleged
leaks
in
this case. He
has
completed
a
report detailing the rather benign
nature
of
theleaks
and
the lack
of
any real
damage
to national
security.
The
defense requests
a
copy
of thisreview
and
any
assessment
given,or
discussions
concerning, the
Wikileaks
disclosures
by
any
member
of
thegovernmenttoThe
defense
requests
any
e-mail,report,
assessment,
directive,
ordiscussion
by
totheDepartment
of
Defense
concerning
this
case
in
order
to
determine
thepresence
of unlawful
command
influence.
See
R.C.M. 405(e).
Additionally,
defense requests
anye-mail, report,
assessment,
directive,or
discussion
bvthis
case:
to the Department
of
State
orDepartment
of
Justice
concerning
:
The
Original
Classification
Authority's
(OCA)classificationreview
was completed
byHis
classification
review
indicatedThis determinationis
at odds
with
the
damage
assessment
completedby thedeterminationis
at odds
with
the
review
at
the
direction
of
.
As
such,
shouldnot
be
permitted
to
espouse
an
opinionwhich
is
Maryland,
nconsistent
with
the
damage
assessments
conducted
by the
govemment.Brady
v.
373
U.S.
83
(1963);
Jencla v.
UnitedStates,353 U.S.657(1957);
c.
Department
of Defense: Early
on
in
theinvestigation,theDepartment
of
Defensereached
out
for
assistance
from
the Department
of
State,
the
Federal
Bureau
of Investigation,
theDefense
Intelligence
Agency,the
Officeof
the
National
Counterintelligence Executive
and
I-.
The
defense
isentitled to receive
any
forensicresults
and
investigativereports
by
any
of
thecooperating
agencies
in this
investigation.
United
States
v.
Williams,sO
M.J.436,441(C.A.A.F.
1999);United
Statesv.
Bryan,868
F.2d
1032,103619th
Cir.
1989);United
States v.
Brooks,966F.2d
1500,
1503
(1992);
Article
46,
Uniform
Code
of
Military
Justice
(IJCMJ).
Finally,
on29
July
2010directedthe
Defense
Intelligence
Agency
to
lead
a
comprehensive
reviewof
the
documents
allegedly
given
to
Wikileaks
and
to
coordinate
under
the
InformationReview
Task
Force
(IRTF,formerlyTF
725)
to
conduct
a
complete
damage
review.
The results
of this
damage
review
undercut
the
testimony
of
each
of
the
representatives
from
the
OCAfor
the
chargeddocuments
inthis case.Specifically,
the
damage
assessment
concluded that
all of
the
information
allegedly
leakedwas
either
dated, represented
low-level
opinions,
or
was already
commonly
understood
and
known
due
toprevious
public
disclosures.
d.
Department
of Justice:
The
defenserequestsany and
all
documentationrelated totheartment
of
Justice
investigation
into
the
a[gged
leaks
by
Wikileaks
as
referenced
by
,
toinclude
any
grand
jnty
testimony
and
Wikileaks
Task
Force and
by the
InformationReview
Task
Force.
Additionally,
this
I]NCLASSIFIED
/
lFOR
PTIBLTC
RELEASE

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