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The government responded to the defense request for production of evidence on 30 November 2011.
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Instead of responding to the defense request as envisioned under R.C.M. 405(g)(l)(B), the government simply treated the request as another request for discovery. Consistent with its previous responses to discovery requests, the government provided one of the following responses: (a) a general denial; (b) a statement that it had already provided all information in its possession; or (c) a statement that it was either unaware of any information or did not presently have the authority to disclose the requested information.
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a.) [_] The video is clearly within the possession of the government and should have already been produced. The government has responded that it 'will provide all matters requested that are it is possession no later than 2 December 2011.'
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b.) [_]Thus far, the defense believes it has only received information on one of the fifteen individuals recommended for adverse administrative action. The government has responded that it 'has provided all matters requested that are in its possession.'
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c.) [_] The lead investigative unit for the government requested preservation of these items on 30 September 2010. See Appendix C. Given the government's own preservation request, it should easily be able to determine the location of these items. The government responded to the defense request by stating that 'it is still actively working to preserve related computer hard drives based on defense's preservation request dated 2l September 2011'
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d.) [_] Under military law, the trial counsel has an affirmative obligation to seek out requested evidence by the defense that is in the possession of the government even if that evidence is not already in the immediate possession of the trial counsel. United States v. Williams, 50 M.J . 436,441 (C.A.A.F. 1999); United States v. Bryan 868 F.2d 1032,1036 (9th Cir. 1989), United States v. Brooks, 966F.2d 1500, 1503 (1992) (the government is considered to have possession of information that is in the control of agencies that are 'closely aligned with the prosecution'). The defense specifically requested the below listed information from the government that is in control of agencies that are closely aligned with this prosecution. As is apparent from the government's responses, it has either purposefully chosen to not search for the specifically requested information, or is shirking its responsibility to do so by saying it has 'no knowledge'
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XXXXXXXXXX [RUSSELL TRAVERS] National Security Staff's Senior Advisor for Information Access and Security Policy was tasked to lead a comprehensive effort to review the alleged leaks in this case. See Appendix D. The government responded to the defense request by stating that it 'has no knowledge of any Brady or Jencks material_[and] will make a determination whether to provide the information if and when it becomes aware of such records.'
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ii) A copy of any e-mail, report, assessment, directive, or discussion by XXXXXXXXXX to the Department of Defense concerning this case in order to determine the presence of unlawful command influence. See R.C.M. 405(e). Additionally, defense requests any e-mail, report, assessment, directive, or discussion by to the Department of State or Department of Justice concerning this case. The government responded to the defense request by stating that it 'has no knowledge of any Brady or Jencks material [_] [and] will make a determination whether to provide the information if and when it becomes aware of such records.'
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iii) The damage assessment conducted by the Information Review Task Force and by XXXXXXXXXX [WHAT IS THIS?]. See Appendix E and F. The government responded that it 'has no knowledge of any Brady or Jencks material_ [andJ does not presently have the authority to disclose damage assessments, if any, cited by the defense and will make a determination whether to provide the information if and when it becomes available.'
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iv.) The collateral investigations by the Department of State, the Federal Bureau of Investigation, the Defense Intelligence Agency, the Office of the National Counterintelligence Executive and XXXXXXXXXX [CIA See Defense Reply to Government Response to Defense Motion to Compel Discovery No. 2, May 10, 2012] The defense is entitled to receive any forensic results and investigative reports by any of the cooperating agencies in this investigation. United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999); United States v. Bryan, 868 F.2d 1032, 1036 19th Cir. 1989); (United States v. Brooks,966F.2d 1500, 1503 (1992);Article 46, Uniform Code of Military Justice (UCMJ). The government responded that it 'has no knowledge of any Brady or Jencks material [_] [and] has provided all forensic results and investigative reports requested that are in its possession and that the United States has authority to disclose.'
v.) The Department of Justice investigation into the alleged leaks by WikiLeaks as referenced by XXXXXXXXXX to include any grand jury testimony and any information relating to any 18 U.S.C. 2703(d) order or any search warrant by the government of Twitter, Facebook, Google or any other social media site. Brady v. Maryland, 373 U.S. 83 (1963);Jencks v. United States,353 U.S. 657 (1957). The government responded that it 'presently has no knowledge of any Brady or Jencks material_and will furnish said records to the defense should it become aware of such records.'
vi.) The Department of State damage assessment review conducted by its task force of over 120 individuals. This task force reviewed each released diplomatic cable. See Appendix G. The government responded that it 'has no knowledge of any Brady or Jencks material [_] [and] does not presently have the authorize to disclose damage assessments, if any, cited by the defense and will make a determination whether to provide the information if and when it becomes available'
e.) The Damage Assessment of Compromised Information that is required to be submitted to the Special Security Officer (SSO) under DoD 5105.21-M-1 once an SCI Security Official determines that a security violation has occurred. The defense also requested a copy of the final security violation investigation report submitted to the SSO DoD Defense Intelligence Agency under DoD 5105.21-M-1. The government had not previously responded to the defense discovery requests for this information. The government's response confirms that the alleged disclosures in this case did not involve any sensitive compartmented information. While this fact alone is not dispositive of whether the alleged disclosures caused harm, it is an additional factor supporting the defense request for production of the above damage assessments. In response to the defense request for production of evidence, the government responded that it 'there is currently no evidence supporting a compromise of sensitive compartmented information (SCI).' |
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Name(s:) |
David Coombs |
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Title: |
civilian defense counsel |
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Concerning: |
United States v. Pfc. Bradley Manning, Grand Jury |
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Url: |
Url Link
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Author: |
David Coombs |
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Title: |
civilian defense counsel |
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Concerning: |
"United States v. Pfc. Bradley Manning |
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Archive Link |
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Title: |
Defense Motion to Compel Discovery No. 2 |
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Author: |
David Coombs |
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Title: |
civilian defense counsel |
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Concerning: |
"United States v. Pfc. Bradley Manning |
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Title: |
FACT SHEET: U.S. Government Mitigation Efforts in Light of the Recent Unlawful Disclosure of Classified Information |
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Authoring or Creator Agency: |
White House |
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Archive Link |
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