Armed Services Board of Contract Appeals (WikiLeaks)

Alexa O'Brien filed this request with the Armed Services Board of Contract Appeals of the United States of America.
Tracking # 14-01
Est. Completion None
Status
No Responsive Documents

Communications

From: Alexa O'Brien

November 27, 2013

To Whom It May Concern:

This letter constitutes a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and is submitted on behalf of journalist Alexa O’Brien.

I seek any and all documents in the Department of Defense Armed Services Board of Contract Appeals’ possession that pertain to the WikiLeaks website or organization from January 2006 to the present date.

I am a “representative of the news media” for fee waiver purposes. See Project on Military Procurement v. Department of the Navy, 710 F. Supp. 362, 363, 365 (D.C.D. 1989). My work has been published in The Cairo Review of Global Affairs, Guardian UK, Salon, and featured by PBS Frontline, On The Media and Public Radio International. Based on my status as a “news media” requester, I am entitled to receive the requested record with only duplication fees asserted. Further, because disclosure of this information will “contribute greatly to the public understanding of the operation or activities of the government,” duplication fees should be waived.

There is a compelling need for the requested documents such that expedited processing is appropriate. I am engaged in disseminating information. There exists an urgent need to inform the public concerning actual or alleged Federal Government activity. As 5 U.S.C. § 552(a)(6)(E)(ii)(I) provides, I will anticipate your determination on our request within ten (10) calendar days.

I requests that in the event that access to any of the requested records is denied pursuant to 5 U.S.C. § 552(b), I be provided with all non-exempt portions which are reasonably segregable. I further request that you describe the deleted material in detail and specify the statutory basis for the denial as well as your reasons for believing that the alleged statutory justification applies in this instance. Please separately state your reasons for not invoking your discretionary powers to release the requested documents. Such statements will be helpful in deciding whether to appeal an adverse determination, and in formulating arguments in case an appeal is taken. I reserve my right to appeal the withholding or deletion of any information and expect that you will list the office and address were such an appeal can be sent.

I requests that documents responsive to this request be provided to me in electronic format on a CD-ROM.

Thank you in advance for your prompt attention to this request.

Sincerely,

Alexa O’Brien

From: Stanton, Catherine A CIV ASBCA (US)

Classification: UNCLASSIFIED
Caveats: NONE

Attn: Ms. Alexa O'Brien

Catherine A. Stanton
General Counsel
Armed Services Board of Contract Appeals
catherine.stanton@asbca.mil
703-681-8503

Classification: UNCLASSIFIED
Caveats: NONE

From: Alexa O'Brien

Catherine A. Stanton
General Counsel
Armed Services Board of Contract Appeals
catherine.stanton@asbca.mil
703-681-8503

Dear Ms. Stanton,

I received your correspondence November 29, 2013 stating that Armed Services Board of Contract Appeals did not possess any of the records that I am seeking.

I am writing to further clarify my request.

I am seeking all documents in the Armed Services Board of Contract Appeals possession containing information pertaining to:

A. Intelligence, counterterrorism & counter intelligence investigations or analysis of the WikiLeaks organization or its publications.

B. Criminal investigations of Wikileaks and the prosecution and court-martial of Pfc. Bradley Manning.

C. Mitigation efforts in response to the unauthorized disclosure of government information to the WikiLeaks organization.

To include contract disputes between government contractors and the Department of Defense which were involved in the above three buckets A, B, and C.

-------------------

A. Intelligence, counterterrorism, counterintelligence investigations, classification reviews and/or analysis of the WikiLeaks organization or its publications.

i. Defense Intelligence Agency (DIA) Information Review Task Force

https://www.documentcloud.org/documents/841438-2010805-ae-49-enc-04-secretary-of-defense-irtf.html

On July 29, 2010 the Secretary of Defense Robert Gates ordered the director of the DIA, Ronald Burgess, to assemble an IRTF to lead a comprehensive review of the documents allegedly disclosed to WikiLeaks in order to "make determinations about whether or not any TTPs [tactics, techniques, and procedures] [had] been exposed, and whether or not any adjustments need[ed] to be made, in light of that exposure," according to then-Pentagon press secretary Geoff Morrell.

The task force--led by counterintelligence expert Brig. Gen. Robert Carr-- was made up of 80 people including intelligence analysts and counterintelligence experts from the DIA; U.S. Pacific Command; U.S. Central Command; and the Under Secretary of Defense for Intelligence, which is responsible for managing the ongoing Department of Defense investigation into WikiLeaks.

Other interagency partners included the FBI and the Army Criminal Investigation Command and the Department of State.

Brig. Gen. Robert Carr testified for the prosecution during the sentencing portion of the court-martial of Pfc. Bradley Manning.

So did Julian Chestnut and John Kirchhofer, (both DIA). Kirschofer holds the civilian rank of defense intelligence senior level for counterintelligence and human intelligence.

See generally for DIA IRTF

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p29/a137881

-------------------

B. Criminal investigation of Wikileaks and the prosecution and court-martial of Pfc. Bradley Manning.

Generally, see military prosecutor’s chronology:

https://www.documentcloud.org/documents/843225-20120926-ae-330-enc-prosecution-chronology.html

The US Government stood up and coordinated a joint interagency criminal investigation of Wikileaks and prosecution of Pfc. Bradley Manning comprised of a partnership between the Department of Defense, State, and Justice.

Within DOD investigating and prosecuting agencies and departments include:

i. CENTCOM

See also generally regarding military prosecutors and classification reviews:

“All communications with each organization occurred through email, telephone conversations, and in-person meetings. Once initial contact was established, the majority of meetings occurred in-person based on the classified nature of the information. For the organizations within the prosecution requested assistance
from OTJAG to funnel requests to CENTCOM, JTF-GTMO, and INSCOM. The prosecution formally requested, in writing, that the OCAs complete a classification. Any follow-up requests, were conducted in-person, using the telephone, and by email, and either directly with the organization's representative or through OTJ AG. All documentation, if any, that the prosecution has authority to provide or will reference during the motions hearing has been provided to the defense.”

https://www.documentcloud.org/documents/712592-20121119-ae-406-prosecution-responses-to-defense.html#document/p3/a24

See also generally regarding classification reviews

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p9/a23

See generally CENTCOM classification review

https://www.documentcloud.org/documents/712601-20130106-ae-471-government-powerpoint.html#document/p28/a137861

Rear Admiral Kevin M. Donegan classification review. In a February 15, 2011 declaration Donegan states that he review of “two PowerPoint slide presentations of official reports originated by USCENTCOM.” “Both PowerPoint slide presentations describe the After Action Review of the Farah CIVCAS Investigation to General Petraeus. The file names of these two presentations have the dates 25 May 2009 and 8 June 2009 respectively.”

https://www.documentcloud.org/documents/841389-20110215-ae-18-enc-01a-rear-admiral-kevin.html#search/p2/Navy

Donegan also testified at the court-martial of Pfc. Bradley Manning on August 9, 2013.

https://www.documentcloud.org/documents/750333-20130809-am-fop-transcript-of-us-v-pfc-bradley.html#document/p12/a137728

Vice Admiral Robert Harward’s classification review included multiple documents found at

https://www.documentcloud.org/documents/839278-20111021-ae-18-enc-01d-vice-admiral-robert.html#document/p10/a137735

They include Iraq and Afghanistan Significant Activities; Farah briefings and documents; a chat log; and videos.

ii. SOUTHCOM

See generally regarding classification reviews:

https://www.documentcloud.org/documents/712592-20121119-ae-406-prosecution-responses-to-defense.html#document/p3/a24

See also generally regarding classification reviews:

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p9/a23

See generally SOUTHCOM classification review

https://www.documentcloud.org/documents/712601-20130106-ae-471-government-powerpoint.html#document/p28/a137861

Rear Admiral David Woods states in his November 2, 2011 declaration that he reviewed “[f]ive documents, totaling twenty-two pages” originating from JTF-GTMO that were disclosed to WikiLeaks and charged against Manning under 18 USC 793.

https://www.documentcloud.org/documents/839284-20111104-ae-18-enc-01g-rear-admiral-david-woods.html#search/p1/Navy

https://www.documentcloud.org/documents/836981-20130700-de-cc-publicly-available-info-on-djamel.html

https://www.documentcloud.org/documents/899624-20130625-ae-576-enc-04-department-of-defense-24.html#search/p8/Navy

https://www.documentcloud.org/documents/717426-20130613-pe-131-stipulation-of-expected.html#search/p1/Navy

Jeffrey Motes testified at the court-martial of Pfc. Bradley Manning that he reviewed “five detainee assessment briefs pertaining to United States v. Private First Class Bradley Manning.”

https://www.documentcloud.org/documents/717426-20130613-pe-131-stipulation-of-expected.html#search/p1/Navy

iii. Defense Intelligence Agency

See generally for DIA

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p27/a27

See generally for DIA IRTF

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p29/a137881

See Daniel Lewis Chief of DIA counterespionage division testimony at the court-martial of Pfc. Bradley Manning

https://www.documentcloud.org/documents/757021-20130702-dan-lewis-dia-redacted-transcript-of.html#document/p3/a137886

iv. Defense Information Systems Agency (DISA)

See also generally regarding classification reviews

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p9/a23

See generally military prosecution discovery production logs

https://www.documentcloud.org/documents/843345-20121116-ae-339-enc-18-prosecution-discovery.html#document/p5/a137859

See generally DISA classification review

https://www.documentcloud.org/documents/712601-20130106-ae-471-government-powerpoint.html#document/p28/a137861

v. Headquarters Department of the Army (HQDA)

Secretary of the Army 15-6 into Pfc. Manning’s chain of command

Secretary of the Army, John McHugh, directed Lt. Gen. Robert Caslen, commander of the Army General Command and Staff College at Fort Leavenworth, Kansas to lead a "six-member task force" investigation into "how Pfc. Manning was selected for his job and trained" and "whether his superiors missed warning signs that he was downloading documents he had no need to read," according to a 23 December 2010 McClatchy report. Army spokesperson, Lt. Col. Christopher Garver, told McClatchy the 15-6 probe had a "very broad investigative mandate" and conducted with cooperation with both the Department of the Army and CENTCOM.

http://www.mcclatchydc.com/2010/12/23/105763/army-wikileaks-probe-could-lead.html

See generally for HQDA

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p25/a137879

vi. Army CID

See generally

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p22/a24

a) USFI (US Forces Iraq)
b) 1st Armored Division (AD)

Including a CID Case numbered 0928-10-CID221-10117

https://www.documentcloud.org/documents/843327-20121116-ae-339-enc-01-log-of-unclassified-emails.html#document/p1118/a134679

vii. Army CCIU

On June 11, 2010, the investigation into Pfc. Manning is transferred to the Computer Crimes Investigating Unit (CCIU). That is because CCIU has additional technical expertise, and all of the evidence in this matter was computer-related. Graham described the evidence being moved to CCIU through a 'controlled transfer' physical evidence hand delivered and additional evidence sent via registered mail. Evidence was thus hand delivered to Kuwait, then to Virginia.

http://www.bradleymanning.org/updates/day-two-of-the-bradley-manning-trial-in-depth-notes-from-a-courtroom-viewer-in-bradley-mannings-article-32-hearing

Special Agent David Shaver was the lead CCIU forensic examiner, who specializes in computer intrusion, and completed 19 classified CCIU reports related to the case. Shaver said he became involved when the Army Computer Crimes Investigating Unit (CCIU) was assigned to the case, which was officially in mid to late June 2010, but based on Shaver's testimony, he had to have been involved as early as 27 May 2010 - the day after Manning was detained at FOB Hammer, Iraq.

See generally regarding CCIU

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p23/a25

viii. NSA

See generally NSA

https://www.documentcloud.org/documents/844359-20121116-ae-339-enc-53-multiple-prosecution.html#document/p11/a137883

https://www.documentcloud.org/documents/844363-20121116-ae-339-enc-81-log-of-defense.html#document/p2232/a136988

NSA review of the Army CID case file

https://www.documentcloud.org/documents/712707-20130226-ae-494-court-ruling-speedy-trial.html#document/p12/a137884

vix. Under Secretary of Defense for Intelligence

Brigadier General Robert Carr, who was in charge of the DIA IRTF, briefed Under Secretary of Defense for Intelligence

https://www.documentcloud.org/documents/745908-20130731-am-fop-transcript-of-us-v-pfc-bradley.html#document/p61/a137885

x. JIEDDO

See generally military prosecutors discovery production logs

https://www.documentcloud.org/documents/843345-20121116-ae-339-enc-18-prosecution-discovery.html#document/p4/a137860

James McCarl supervised over 800 defense analysts at JIEDDO and testified at the court-martial of Pfc. Bradley Manning.

https://www.documentcloud.org/documents/749390-20130807-am-fop-transcript-of-us-v-pfc-bradley.html#document/p19/a137887

Adam Pearson was the team lead for Cyber Counter-IED team at DoD's Joint Improvised Explosive Device Defeat Organization (JIEDDO) and testified at the court-martial of Pfc. Bradley Manning.

https://www.documentcloud.org/documents/749391-20130807-pm-fop-transcript-of-us-v-pfc-bradley.html#document/p11/a137888

xi. ManTech and Other Contractors

Mark Johnson is a computer forensic examiner employed as a civilian contractor with ManTech International at Fort Belleville, West Virginia. Johnson reports to Special Agent David Shaver Computer Crimes Investigation Unit (CCIU). Johnson testified that he worked previously as a defense contractor.

http://www.alexaobrien.com/secondsight/wikileaks/bradley_manning/witness_profiles_us_v_pfc_bradley_manning/agents/witness_us_v_pfc_manning_mark_johnson_mantech_contractor_reports_to_cciu_special_agent_david_shaver.html

xiii. Prosecution and Court Martial of Pfc. Bradley Manning

See generally military prosecution’s time line

https://www.documentcloud.org/documents/843225-20120926-ae-330-enc-prosecution-chronology.html

xiv. INSCOM

See also generally regarding classification reviews:

“All communications with each organization occurred through email, telephone conversations, and in-person meetings. Once initial contact was established, the majority of meetings occurred in-person based on the classified nature of the information. For the organizations within the prosecution requested assistance
rom OTJAG to funnel requests to CENTCOM, TF-GTMO, and INSCOM. The prosecution formally requested, in writing, that the OCAs complete a classification. Any follow-up requests, were conducted in-person, using the telephone, and by email, and either directly with the organization's representative or through OTJ AG. All documentation, if any, that the prosecution has authority to provide or will reference during the motions hearing has been provided to the defense.”

https://www.documentcloud.org/documents/712592-20121119-ae-406-prosecution-responses-to-defense.html#document/p3/a24

See also generally regarding classification reviews

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p9/a23

See generally military prosecution’s time line

https://www.documentcloud.org/documents/843225-20120926-ae-330-enc-prosecution-chronology.html

See generally INSCOM classification review

https://www.documentcloud.org/documents/712601-20130106-ae-471-government-powerpoint.html#document/p28/a137861

xv. Joint Staff

See generally military prosecution’s time line

https://www.documentcloud.org/documents/843225-20120926-ae-330-enc-prosecution-chronology.html

See generally for Joint Staff

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p25/a137879


xvi. CYBERCOM

See generally CYBERCOM classification review

https://www.documentcloud.org/documents/712601-20130106-ae-471-government-powerpoint.html#document/p28/a137861

See also generally regarding classification reviews

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p9/a23

xvii. Department of Defense

See generally Department of Defense classification review

https://www.documentcloud.org/documents/712601-20130106-ae-471-government-powerpoint.html#document/p28/a137861

See also generally regarding classification reviews

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p9/a23

See generally for DoD

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p25/a137879

-------------------

C. Related to mitigation efforts in response to the unauthorized disclosure of government information to the WikiLeaks organization.

On 28 November 2010, the Director of the Executive Office of Budget and Management, Jacob Lew sent a "Memo for the Heads of Executive Departments and Agencies regarding WikiLeaks - Mishandling of Classified Information".

The memo stated that the "significant irresponsible disclosure by WikiLeaks has resulted in significant damage to our national security" and that "[a]ny failure by agencies to safeguard classified information pursuant to relevant laws, including but not limited to Executive Order 13526, Classified National Security Information (December 29, 2009), is unacceptable and will not be tolerated."

The memo directed each department and agency of the federal government that handles classified information to establish "a security assessment team consisting of counterintelligence, security, and information assurance experts to review the agency's implementation of procedures for safeguarding classified information against improper disclosures."

http://m.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-06.pdf

Another memo followed on January 3, 2011.

The memo contained memoranda from the Director of the Information Security Oversight Office (William J. Bosanko) and the National Counterintelligence Executive (Robert M. Bryant).

The memo called for federal agency teams to complete their internal assessments questionnaire (attached) by January 28, 2011. The memo also directed ONCIX and ISOO in coordination with OMB to evaluate and assist federal agencies to comply with the assessment requirement. The memo directed ODNI, ONCIX, and ISOO to provide assistance to the federal agency’s assessment teams (to include periodic on-site reviews of agency compliance where appropriate).

An assessment questionnaire included inquiries such as 'Assess what your agency has done or plans to do to address any perceived vulnerabilities, weaknesses, or gaps on automated systems in the post-WikiLeaks environment,' and 'Do you capture evidence of pre-employment and/or post-employment activities or participation in on-line media data mining sites like WikiLeaks or Open Leaks?'

http://m.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-08.pdf

a.) On October 7, 2011 the President of the United Stated, Barack Obama, published Executive Order 13587 concerning “Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information.”

http://www.whitehouse.gov/the-press-office/2011/10/07/executive-order-structural-reforms-improve-security-classified-networks-

The order directed federal agencies that use classified networks to “designate a senior official to oversee classified information sharing and safeguarding for the agency; implement an insider threat detection and prevention program; and perform self assessments of compliance with policy and standards.”

The order further outlined how “A Senior Information Sharing and Safeguarding Steering Committee will have overall responsibility for fully coordinating interagency efforts and ensuring that Departments and Agencies are held accountable for implementation of information sharing and safeguarding policy and standards.”

The order further stated that “the Attorney General and the Director of National Intelligence [were] actively establishing an interagency Insider Threat Task Force” and that “[d]epartments and [a]gencies are implementing more robust access control systems to enforce role-based access privileges that serve to ensure that an individual user's information access is commensurate with his/her assigned role.”

See generally for ONCIX damage assessment, which was a aggregation of the government (and military) effort

https://www.documentcloud.org/documents/712910-20121116-ae-339-prosecution-response-to-defense.html#document/p29/a29

Sincerely,

Alexa O’Brien

From: Stanton, Catherine A CIV ASBCA (US)

Classification: UNCLASSIFIED
Caveats: NONE

Dear Ms. O'Brien,

The ASBCA's response to this request remains the same - the records you requested are not in the ASBCA's possession and therefore cannot be provided.

Catherine A. Stanton
General Counsel
Armed Services Board of Contract Appeals
catherine.stanton@asbca.mil
703-681-8503

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