Pretrial Motions (11 January 2013 -17 January 2013)(1) Defense Motion for Speedy Trial, including Article 10 (Argument Only)(A) Article 39(a): 16-17 January 2013L Pretrial Motions (10 January 2013-8 February 2013)(A) Filing: 10 January 2013(B) Response: 24 January 2013(C) Reply: 29 January 2013(D) Article 39(a): 5-8 February 2013(I) Providence Inquiry33670(2) Supplemental Government Witness List (if necessary)(A)Filing:10January2013(3) Grunden Hearingfor Government Classified Information(4) Litigation Concernmg MRE505(h)and MRE505(i)(ifnotpreyiouslyresolyed)(5) Govemment Notification of Security Clearances for Defense Witnesses (ifnecessary)(A) Filing: 24 January 2013(B) Response: 29 January 2013(6) Govemment Disclosure to Defenseofany Alternatives ofdassifiedinformation In lieu of Closing the Courtrooms(A) Disc Iosure:8February2013(B) Response: 15 February 2013m. The United States respectfully requests this Court accept the below clari? s witness list on 2 December 2012, in the Updated Prosecution Witness List as well as the Defense Notice Under MRE 505(h), dated 14 December 2012. The United States requests clarification on the Court's intent for the Grunden f i l i n g s . The Defense in the above case respectfully requests that this Court deny the Govemment'smotion in limine to exclude evidence of overclassification. The burden ofproof on any facmal issue, the resolution ofwhich is necessary to decideamotion, shall be by preponderanceofthe evidence. Namely, thenotice that this permission gives to individual witnesses about what subjects can andcannot be discussed by the individual witnesses in their pretrial interviews with defensecounsel. Trial bv MJ Alone (18 March 2013 - 26 April 2013)Trial: 18 March 2013-26 April 2013CALENDAR B - I f Defense does NOT file a motion to compel "OCA " testimonyk. Except as articulatedbelow, the United States does not object to the Defense Notice insofar as the defense does notelicit "Top Secret" or "Sensitive Compartmented Information" from any of the witnesses. This response contemplateschanges made to the Govemment? Clarification The United States does not object to the defense notice for Mr. es that the defense should be discussing the speci? O^DEAN MOR^Gv T": PT, J AAssistant Trial Counsel33676Morrow, Jo Degn (Joe) III CPT USARMY USAMDW (US)From: Sent: To: Co: Subject: Lind, Denise R COL USARMY (US)Thursday December 20, 2012 PMFein, Ashden MAJ USARMY MDW (US)'David Coombs'; Tooman, Joshua J CPT USARMY (US); Morrow, Jo Dean (Joe) 111 CPTUSARMY USAMDW (US); Overgaard, Angel M CPT USARMY (US); Whyte, J Hunter CPTUSARMY (US); von Elten, Alexander S (Alec) CPT USARMY (US); Ford, Arthur D Jr CW2USARMY (US); Williams, Patricia Ann (Trisha Williams-Butler) CIV USARMY USAMDW (US); Jefferson, Dashawn MSG USARMY (US); Moore, Katrina R MSG USARMY (US); Raffel, Michael J SFC USARMY (US); Hurley, Thomas F MAJ USARMY (US)RE: Clarification (Grunden) (UNCLASSIFIED)Classification: UNCLASSIFIEDCaveats: NONEA l l of them f i l e d to date. LINDCOL, DAChief Judge, 1st Judicial Circuit Original Message From: Fein, Ashden MAD USARMY MDW (US)Sent: Thursday, December 20, 2012 PMTo: Lind, Denise R COL USARMY (US)Cc: 'David Coombs'; Tooman, Doshua D CPT USARMY (US); Morrow, Do Dean (Doe) I I I CPT USARMYUSAMDW (US); Overgaard, Angel M CPT USARMY (US); Whyte, D Hunter CPT USARMY (US); von Elten, Alexander S (Alec) CPT USARMY (US); Ford, Arthur D Dr CW2 USARMY (US); Williams, Patricia Ann(Trisha Williams-Butler) CIV USARMY USAMDW (US); Defferson, Dashawn MSG USARMY (US); Moore, Katrina R MSG USARMY (US); Raffel, Michael D SFC USARMY (US); Hurley, Thomas F MAD USARMY(US)Subject: Clarification (Grunden)Ma'am. Army Garrison, Joint Base Myer-Henderson Hall Fort Myer, Virginia 2221128 December 2012RELIEF SOUGHT1. However, this inferentialclaim ignores an important consequence of obtaining OCA permission.
Pretrial Motions(13Fehruary2012-l March2013)(A) Filing:13February2013(B) Response: 20 February 2013(C) Article 39(a): 27February IMarcb20l3(1) Grunden Hearing for Defense Classified Information(2) Completion of Security Clearance Checks for Witnesses (as necessary)(3) Government Notice of Alternatives of Classified Information in lieu of Closingthe Courtroom(A) Filing: 20 February 2013n. cation and, withrespect to the below objections, preclude the defense from questioning the witnesses named in I. Inparagraph 2c, the Court orders the United States to provide "notice of whether the Governmentobjects to the Defense's proposed use of classified information as detailed in i t s f i l i n gdated 26 October 2012." Did the Court intend to only include 26 October 2012, or a l lprevious MRE 505(h) notice f i l i n g s to include 26 October 2012? The defense is concerned that government witnesses that will be providingtestimony on classified topics do not now understand the appropriate boundaries fortheir testimony. Responsibleaction, Rrincipal, Ihelest, Ibe, Counselfor, DAJA LE, Copiesof, Asoldier, Leesee, GEORGE G. We are confident that we can complete interviewing most Department of Defense witnesses during this month. Again, any delay associated with the delaydecried by the government is not the fault of the defense.7. dent that it can complete interviewing the government'switnesses and provide notice under MRE 505(h) in accordance with the currentscheduling order. Pretrial Motions (1-15 March 2013)(A) Filing: 1 March 2013(B) Response: 8 March 2013(C) Article 39(a): 13-15 March 2013(1) Grunden Hearing for Defense Classified Information(2) Completion of Security Clearance Checks for Witnesses (as necessary)(3) Government Notice of Alternatives of Classified Information in lieu of Closingthe Courtroom(A) Filing: 8 March 2013o. Army Garrison, Joint Base Myer-Henderson Hall Fort Myer, Virginia 2221121 December 2012The United States reviewed the Defense MRE 505(h)(1) Notice on Updated Prosecution Witness List dated 5 November 2012 (hereinafter "Defense Notice"). Because ofthese issues and others, onl70ctober 2012,the Court ordered the Govemment to fileapleading that both addresses the requirements f:or defense notice under MRE 505(h)andproposesatimclinef:or filings by the parties. Appellate Exhibit CCCLVIf Among other things, that timeline required thedefense, by 16Novembcr 2012,to provide specific notice of classified information the defenseintends to disclose during trial through prosecution witness testimony. Thel6Novemhcr2012date proposed by the Govemment was based, in part, on APPELLATEEXHIBIT^^^PAGEREFERENCED: PAGEOFPAGES33675the Govemment's estimate that 45-60 days would be required for coordination. As acknowledged by the defense in its filing on 14 December 2012, thatnotice is still outstanding. Accordingly, because of the lack of time forcoordination, the Govemment believes the Grunden issues in paragraph 2c, as well as the Court's Calendar, must be shifted to the right, or the defense should be precluded from elicitingclassified information through prosecution witnesses during trial.'M/ # D E A N MORROWCPT, JAAssistant Trial Counsel I certify that I served or caused to be served a true copy of the above on Mr. Coombs, Civilian Defense Counsel, via electronic mail, on 21 December 2012. The burden of persuasionon any factual issue, the resolution of which is necessary to decideamotion, shall be on themoving party. s 16 November notice isevidence that this step has been satisfactorily completed. Pretrial Motions (24 January 2013- 22 Febmary 2013)(A)(B)(C)(D)Filing: 24 January 2013Response: 7 February 2013Reply: 12 February 2013Article 39(a): 19-22 February 2013(1) Providence Inquiry^ This Article 39(a) is currently scheduled to occur on either 19-22 February 2013 (Calendar A) or 5-8 February 2013(Calendar B),^ If the Court does not compel testimony, then Calendar B shall be followed, and Speedy Trial oral argument willoccur during this motions hearing.* Alternatives include, but are not limited to stipulations; use of code words or special names; use of screens,disguises, and code names for classified witnesses; use of electronic imagery visible only to cleared trial participantsand not the public; the "silent witness" rule; and syllabi or reference indexes.333669(2) Supplemental Government Witness List (if necessary)(A) Filing: 24 January 2013(3) Grunden Hearing for Government Classified Information(4) Litigation Concerning MRE 505(h) and MRE 505(i) (If not previously resolved)(5) Government Notification of Security Clearances for Defense Witnesses (ifnecessary)(A) Filing: 7 February 2013(B) Response: 12 February 2013n. Appellate Exhibits CCIV and CCLXIf Portions ofthe defense noticewith respect to three damage assessments were superseded bythe defense notice provided on 14December 2012, hut the defense has yet to provide adequate specificity with respect to otherportions ofthe defense notice filed onl7August2012and responded to bythe Govemment on22 August 2012. It could be argued, byinference, that its 21 December 2012 response to the defense? Loiko, Laura King, Edmund Sanders, Jeffrey Fleishman, Alex Rodriguez, Ken Dilanian, Jim Judd, Judd, Alice, Eliot Cohen, Bush, Omar Khadr, Lawrence Cannon, Andrew, Tatiana Gfoeller, Gfoeller, Patrick White, Campbell Clark, SCOTT SHANE, ANDREW W. Pafterson, Ahmed, Purope, Buta, Ali Abdullah Saleh, Petraeus, Qaddaft, Nuri Kamal al Maliki, King Abdullah, Asif Ali, Bradley Manning, Private Manning, Bruce Laingen, Carter, Gen. Chivers, James Glanzfrom, Eric Lichtblau, Michael R. Sanger, Charlie Savage, Eric Schmitt, Ginger Thompson, Jane Perlez, Ahmed Zia Massoud, Massoud, Peter Walker, Harold, David Cameron, Franco Prattini, Oatar, Mark Ti, Ouardian, Louis Susman, John, Le Monde, Alan Rusbridger, Simon Jenkins, Guido Westerwelle, Westerwelle, Ehud Barak, Roger Cressey, Christopher Meyer, Michael Cox, Isomehow, Matthew Weaverwill, Owen Brennanoq, Mark Tij, Kerry, Hagel, Glenn Kessler, Forbes, Ken Fisher, Hamid Karzai, Moammar Gaddafi, Karl-Theodorzu Guttenberg, Gbama, Robert Gibbs, P. Army Corps of Engineers, Contract Appeals Division, Armed Services Board of Con- tract Appeals, General Services Board of Contract Appeals, COE, Regulatory Law Office, Intellectual Property Law Division, Employment Law Office, Federal Labor Relations Authority, Merit Systems Protection Board, Equal Employment Op- portunity Commission, Department of Labor, National Labor Rela, Board, U. Pretrial Motions (19 October 2012 -12 December 2012)j. Objections For the reasons stated below, the United States objects to the defense eliciting classi? Matthew Hosburgh (Defense Notice The C3 document is not classi? ed, and the United States does not intend to elicit any classi? CPT Steven Lim (Defense Notice The United States only objects to the defensediscussing classi? Florinda White (Defense Notice The United States does not intend toelicit any classi? CONCLUSIONThe United States respectfully requests this Court accept the clari? AN MORRPT, JAAssistant Tn'al Counsel I certify that I served or caused to be served a true copy of the above on Mr. Coombs, Civilian Defense Counsel, via electronic mail, on 21 December 2012.tl? At this time, the Govemment is unable to comply with paragraph 2c ofthe Court Scheduling Order because the defense has failed to provide the requisite specificity in its Military Rule of Evidence (MRE) 505(h) filings to date, and has acknowledged as much. The defense believes that the next two steps in the classi?