Blackwater Transcript One

Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 1 of 106
1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF COLUMBIA
3 UNITED STATES OF AMERICA, . Docket No. CR-08-0360 (RMU)
4 Plaintiff,
. Washington, D.C.
5 v. , October 22,2009
. 2:00 p.m.
6 PAUL SLOUGH, et al,
7 Defendant.
..................
8
TRANSCRIPT OF HEARING - AFTERNOOW SESSION
9 BEFORE THE HONORABLE RICARDO M. URBINA
UNITED STATES DISTRICT JUDGE
10
11 APPEARANCES:
12 For the Plaintiff! United States Department of Justice

By: Joseph Nicholas Kaster, Esquire
13 Michael John Dittoe, Esquire
10th and Constitution Avenue, NW
14 Washington, D.C. 20530
202.5 14.2805
15
For the Defendant Steptoe & Johnson, LLP
16 Slough: By: Mark J. Hulkower, Esquire
Michael J. Baratz, Esquire
17 1330 Connecticut Avenue, Northwest
Washington, D.C. 20036
19 For the Defendant Harris, Wiltshire & Grannis, LLP

Slatten: By: Thomas G. Connolly, Esquire
20 Steven A. Fredley, Esquire
1200 18th Street, Northwest
202.730.1339
22
For the Defendant Schertler & Onorato, LLP
23 Heard: By: David Schertler, Esquire
Danny Onorato, Esquire
24 Veronica R. Jennings, Esquire
60 1 Pennsylvania Avenue, Northwest
202.628.41 99
Linda L. Russo, RPR

Official Court Reporter
1
For the Defendant Mallon & McCool, LLC
2 Ball: By: Steven J. McCool, Esquire
1776 K Street, Northwest
202.680.2440
4
For the Defendant Coffield Law Group, LLP
5 Liberty: By: William F. Coffield, IV, Esquire
1330 Connecticut Avenue, Northwest
202.429.4799
7
12 Court Reporter: Linda L. Russo, RPR

13 Room 6503, U.S. Courthouse
Washington, D.C. 20001
14 202.354.3244
24 Proceedings reported by machine shorthand, transcript produced

by computer-aided transcription
25
Linda L. Russo, RPR

1 DIRECT EXAMINATION
2 BY MR. KASTER:
3 Q. Would you please state your name?
4 A. Raymond Hulser.
5 Q. How are you currently employed?
6 A. I'm a Deputy.Chief in the Public Integrity Section in the
7 criminal division of DOJ.
8 Q. Would you describe just very briefly your duties as a
9 Deputy Chief with the Public Integrity Section?
10 A. Sure. I help supervise litigation, and I help work on
11 policy and legal issues for the Department.
12 Q. With regards to your work with the Department, then, do
13 you have occasion to serve as a filter or a taint attorney for
14 attorneys within the Public Integrity Section?
15 A. I have done that, yes.
16 Q. About how frequently do'you engage in that type of
17 assistance?
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18 A. It doesn't come up under any regular schedule, but I have
19 definitely done it probably as many as ten times.
20 Q. When did you join the Department of Justice?
21 A. 1990.
22 Q. And have you served in other sections, or have you served
23 your time in the Public Integrity Section?
24 A. I've been in the Public Integrity Section the entire time.
25 Q. ;Mr. Hulser, I'd like to have you turn your attention then
Linda L. Russo, RPR

1 to how you got involved with the current case, the
2 investigation of the shooting at Nisur Square on September 16,
3 2007, all right?
4 A. Yes.
5 Q. Would you tell -theCourt how you were first notified that
6 your assistance would be requested to work on this case.
7 A. I got a phone call from Ben Campbell, Benton Campbell, who
8 was at the time I think Acting Chief of Staff to the Assistant
9 Attorney General, and from Sigal Mandelker who was at that time
10 a Deputy Assistant Attorney General in the criminal division,
11 and they informed me that there was an issue involving
12 potential Garrity problems in the investigation of a shooting.
13 Q. Had you had any experience prior to this case dealing with
14 Garrity issues?
15 A. I had. I had experience reviewing Garrity issues in
16 individual cases and working on it from a policy perspective as
17 well.
18 Q. Did Mr. Campbell tell you generally what your role was
19 going to be in this investigation?
20 A. Yes, although I think it was a bit uncertain at that
21 point, it was clear that they were reaching out to me because I
22 had experience with Garrity issues, and they wanted someone to
23 help manage the Department's way through that issue.
24 Q. Once you found out that this was going to be a new
25 assignment, what were some of the first steps that you took?
Linda L. Russo, RPR

1 A. First I found out who it was I would be dealing with in
2 the National Security Division, which would be taking on the
3 case.
4 Q. Let me stop you there. Why was the National Security
5 Division going to be taking the case? You work for the
6 criminal division, right?
7 A. I do. Some of the folks in the criminal division had
8 received statements from the Department of State that were
9 generated by Department of State investigators, and there was a
10 concern that those statements may have been compelled. And so
11 since people in the criminal division might have received
12 information derived from compelled statements, we decided to
13 remove the case -- it was decided to remove the case from the
14 criminal division.
15 Q. And in doing so, did you find out -- strike that. When
16 that occurred, who did you find out you would be working with
17 as part of this investigation from the National Security

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18 Division?
19 A. My main contact with the National Security Division was
20 Mike Mullaney, who was in charge of the counterterrorism
21 section, and I also had contact briefly with Ken Wainstein, who
22 was the ~ s s i s t a nAttorney

t General, and with Pat Rowan.
23 Q. What about from the perspective of the State Department,
24 what, if any, relationship did you develop with State
25 Department lawyers as this investigation began?
Linda L. Russo, RPR

1 A. I worked with an attorney by the name of Jesse Tampio
2- primarily on issues related to the taint, helped get him up to
3 speed on what the issues would be, and help work through some
4 of the logistics with him in terms of passing information to
5 the FBI.
6 In addition, there was an attorney Brad Wigman, and
7 he was involved on some of the policy issues that would flow
8 from this. That is, this was an international incident that
9 the State Department needed to be able to handle. So there
10 were issues regarding briefing the Iraqis, for example, or
11 condolence payments to the victims.
12 Q. Did there come a time when you came to possess the
13 underlying documents that were at issue concerning the Nisur
14 Square shooting that the Diplomatic Security Service had
15 originally had in their possession?
16 A. I did.
17 Q. And how did you get those, do you recall?

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18 A. I believe I got some in person from John Morton, who was
19 in the Domestic Security section in the criminal division.
20 Q. Now, you're aware that there were statements submitted by
21 Raven 23 guards that were sworn statements, correct?
22 A. Yes.
23 Q. There are also a category of statements derived from oral
24 interviews. You're aware of that as well?
25 A. Yes.
Linda L. Russo, RPR

1 Q. Initially did you receive both sets of documents or not?
2 A. I don't remember exactly in what order I received them, or
3 exactly when, but very soon after getting assigned, I received
4 write-ups of the oral interviews and copies of the sworn signed
5 statements.
6 Q. Now, you I believe indicated that you first began work on
7 this case around the 1st of October of 2007; is that correct?
8 A. Yes.
9 Q. Shortly after starting work, did you have any contact with
10 Mr. Mullaney over at the National Security Division?
11 A. I did.
12 MR. KASTER: Your Honor, I have in the folder before
13 the Court, as well as before the witness, as well as a folder
14 that I have given to defense counsel, a series of exhibits, and
15 I'd like to begin with first Government's Exhibit 53 for
16 identification.
17 BY NIR. KASTER:
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18 Q. Mr. Hulser, could you pull out Government's Exhibit 53 and
19 take a look at the pages that are stapled together there?
20 A. Yes.
2 1 Q. Do you recognize these documents?
22 A. Yes.
23 Q. Very briefly, what are the documents there?
24 A. There are a couple of e-mails here between me and Mike
25 Mullaney and others at the National Security Division, and an
Linda L. Russo, RPR

1 e-mail exchange between me and Jesse Tampio at the State
2 Department, and a copy of the memo that John Morton and I wrote
3 from the criminal division to Ken Wainstein at the National
4 Security Division.
5 NIR. KASTER: Your Honor, the United States would
6 offer at this time in evidence Government's Exhibit 53.
7 MR. CONNOLLY: No objection.
8 THE COURT: Admitted.
9 (Government's Exhibit Number 53 received in evidence.)
10 BY MR. KASTER:
11 Q. Mr. Hulser, with regards to the first page, which is DOJ
12 Bates number 001497, it's a chain of e-mails, correct?
13 A. It is.
14 Q. And the top e-mail, that's an e-mail from you to
15 Mr. Mullaney, do you see that, dated October 2nd?
16 A. Yes.
17 Q. You refer in this e-mail to Mr. Jesse Tampio?

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18 A. Right.
19 Q. And he was a lawyer with the State Department Legal
20 Office?
21 A. Right.
22 Q. Now, does this -- well, what does this e-mail reflect in
23 terms of your initial efforts as the taint or filter attorney
24 for DOJ?
25 A. The initial effort was to work through logistics. The FBI
Linda L. Russo, RPR

was going to very quickly be taking a trip to Iraq to
investigate, and we needed to put some things in place on the
State Department's side, and the DOJ FBI side in order to make
sure that they weren't exposed to what could be compelled
statement.
Q. What was your understanding as far as why the FBI quickly
wanted to get to Baghdad?
A. Well, this is an incident that had taken place weeks
before already, and with an incident like this, although I
10 don't have experience in violent crime or shootings, with an
11 incident like this, the assumption was they needed to get there
12 and investigate as quicltly as they could.
13 Q. Based on your participation in these early planning
14 efforts, did the FBI require assistance of agents from the
15 Diplomatic Security Service to help them?
16 A. They did. What we set up was for there to be agents from
17 the State Department's side who were not exposed to any

18 statements given by the Team 23 mernbers. And there were a
19 couple who would travel to Iraq and be available to the FBI as
20 contacts so that they would be able to have someone to contact
2 1 to get information from the State Department.
22 Q. Did you take any steps in these early days to address the
23 issue of media stories concerning the Nisur Square shooting?
24 A. Yes, I think conveyed both to the State Department and to
25 Mr. Mullaney and the National Security Division that some of
Linda L. Russo, RPR

1 the statements by the Team 23 members had reached the media,
2 and therefore they needed to avoid any exposure to media
3 stories about the incident.
4 Q. So both State Department and DOJ side. Would you mind
5 turning to Government's Exhibit 53, to the next page, which is
6 DOJ-003068. Do you see that?
7 A. Yes.
8 Q, Now, it's an e-mail. Could you tell the Court what this
9 e-mail reflects?
10 A. Right. This is me advising Mr. Tampio at the State
11 Department that anyone who is going to be on the clean group
12 from the State Department needs to avoid media stories on the
13 shooting.
14 Q. And at this time, could you describe for the Court, at
15 this time of the investigation that is, who is starting to form
16 as the taint side of things, and who is going to be on the
17 clean side of things?

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18 A. The State Department needed to identify who in Baghdad had
19 been exposed to the statements given by the Team 23 members,
20 and so they came up with a list of people in Baghdad, both at
21 the embassy and in the RSO, who had been involved in reviewing
22 those, getting those statements or writing a report based on
23 them. The State Department came up with that list.
24 They also identified people in the RSO in Baghdad who
25 had not been exposed to those materials, and so we had names of
Linda L. Russo, RPR

1 people that could be contacted. And then there were names of
2 the individuals who would be traveling to Baghdad who 'had been
3 previously uninvolved in it and were not exposed. So that was
4 the State Department side of things.
5 Q. And I guess from the Justice Department side of things,
6 including both Main Justice and .the FBI, would you briefly
7 summarize for the Court who is on the clean team, and who is
8 going to be on the filter team?
9 A. Right. In the memo that we wrote to Mr. wainstein, John
10 Morton and I tried to identify who in the Department we knew
11 had been exposed to statements by Team 23 members, and what we
12 were doing is setting up a line between those folks and the
13 folks in the National Security Division.
14 So my understanding was Mike Mullaney and any
15 attorneys that he would assign to the matter would be on the
16 clean team, and that the FBI would identify individuals who had
17 not been exposed to any of the media accounts on the case.

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18 Q. Now, you described a minute ago that there was this memo
19 within Government's Exhibit 53 that was sent from yourself and
20 John Morton to Assist Attorney General Wainstein, correct?
21 A. Right.
22 Q. If I could have you turn to the third page of the memo,
23 which is DOJ Bates number 005136?
24 A. Yes, sir.
25 Q. You see about halfway down the page there's a paragraph
Linda L. Russo, RPR

1 beginning, issues that need prompt attention?
2 A. Right.
3 Q. Did you participate in the preparation of this memo with
4 Mr. Morton?
5 A. I did. I think Mr. Morton had a bigger hand in it. He
6 had been involved for a bit longer than I had by the time we
7 sent this.
8 Q. Let me have you focus on the, there's a legal discussion
9 and there's some bullet points that are listed underneath
10 there, and let's take a couple of them. The third bullet
11 point, for example, could you read that one, please?
12 A. The need to determine if a special advice of rights should
13 be crafted for individuals who may already have given DS sworn
14 statements pursuant to the earlier compelled warnings.
15 Q. And what about the next bullet point there?
16 A. The need to assign a taint free senior DOJ official within
17 NSD to help coordinate the whole affair with the FBI, the State
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18 Department, and the Department of Defense.
19 Q. Was that person assigned within the first day of when you
20 got on the case?
21 A. I would view that as Mr. Mullaney.
22 Q. And the next bullet after that, would you read that one?
23 A. The need to address basic questions about how the FBI team
24 should structure and manage its relationship with the State
25 Department in general, and Diplomatic Security in particular.
Linda L. Russo, RPR

1 Q. Now what, if anything, did you do to accomplish, or to
address the issue that's set out there about how the FBI and
the State Department were going to interact going forward?
A. I worked with Mr. Tampio at the State Department, and he
took the leading hand in drafting a protocol, but he and I
worked together to draft a protocol about who would have what
role, and who should avoid what sort of contacts, what
information should be passed.
Q. And in transferring this case to the National Security
Division what, if anything, did you inform the National
Security Division concerning the potential legal issue on
Garrity and Kastigar through this memo?
A. It was simply to alert them to an issue that I was quite
familiar with from my experience working with Inspector General
offices, this is a slightly different context. This, the idea
of a Garrity issue, is not something that's commonly known
among all prosecutors. We happen to deal with it a fair amount

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18 in the Public Integrity Section.
19 So the idea was to convoy to them, there may be an
20 issue with a statement having been compelled. And if it is,
21 then we need to avoid the people doing the investigation
22 becoming exposed to those statements or the information derived
23 from them.
24 Q. I'd like to ask you a few questions concerning your
25 efforts during the month of October, 2007, in particular.
Linda L. Russo, RPR

1 Okay?
2 A. Yes.
3 Q. Did you come to learn that the FBI actually did ultimately
4 deploy to Iraq that first week of October?
5 A. Yes.
6 Q. Now, as the FBI goes to Iraq to begin the investigation,
7 what are you doing here back in Washington as your role as the
8 taint attorney to assist with the investigation as it's getting
9 under way?
10 A. One of the things we did while the FBI was there was, we
11 identified an Assistant United States Attorney who was posted
12 to Baghdad who was on the ground to review any materials as a
13 taint or filter attorney, any materials that the FBI might want
14 to see there. So he was put in place, and I worked
15 coordinating with him some on the phone.
16 Q. So another individual joined you as part of the taint
17 team?
18 A. Yes.
19 Q. Do you recall his name?
20 A. That was Joe Mott.
21 Q. And with regards to how the FBI when they got to Baghdad
22 would interact with the State Department, what, if anything,
23 did you do with Mr. Tampio to address that issue?
24 A. We spoke about requests that came from the FBI while they
25 were there. So a request would come in that they wanted to
Linda L. Russo, RPR

1 speak with somebody, or get a particular document, I would talk
2 to Mr. Tampio and convey my response to that, either to Mr.
3 Tampio or in some cases I believe while they were there, to
4 Mr. Mullaney as well.
5 Q. Did there come a time where you and Mr. Tampio decided to
6 prepare sort of a written protocol for how the State Department
7 would interact with the FBI?
8 A. There was a written protocol, yes.
9 Q. Would you mind pulling out from your folder Government's
10 Exhibit Number 54, which is for identification at this point?
11 A. Yes.
12 MR. KASTER: Your Honor, I believe without objection
13 the United States will move Government's 54 into evidence.
14 THE COURT: Yes, sir, admitted.
16 BY MR. KASTER:
17 Q. Let me start very quickly with regards to your sort of

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18 general advice that you would give to Mr. Mullaney for the FBI
19 as far as how they should approach the investigation, even
20 though there had been other investigating bodies at work. What
21 were you telling Mr. Mullaney that the FBI should -- how they
22 should approach this?
23 A. I think Mr. Mullaney's view was the same as mine, which
24 was they should treat this as though they were showing up on
25 the scene immediately after the shooting, and proceed that way
Linda L. Russo, RPR

1 to investigate what had happened, rather than try to get
2 information from anyone who had done the prior investigation
3 about what they thought had happened.
4 Q. Let me have you turn the page real quick on Government's
5 Exhibit 54 to DOJ-001500.
6 A. Yes.
7 Q. And I have this on the Elmo as well. Is this an e-mail
8 from you to Mr. Mullaney?
9 A. It is.
10 Q. And could you read the last sentence of the third full
11 paragraph that's highlighted on the copy here on the Elmo that
12 begins "unfortunately"?
13 A. Unfortunately, given the nature of the compulsion here, I
14 believe that it is safest for the FBI to proceed as if no
15 inquiry happened at all.
16 Q. And did this viewpoint of yours inform, then, the advice
17 you would later give?

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18 A. It did.
19 Q. Now, with regards then to how that general advice got
20 transformed and perhaps some more specific advice, did you
21 ultimately finalize with Mr. Tampio sort of an investigation
22 protocol?
23 A. Yes. There was a protocol, and it's another document in
24 this exhibit.
25 Q. And could you turn to DOJ-001502 in Government's Exhibit
Linda L. Russo, RPR

( Official Court Reporter
1 54?
2 A. Yes.
3 Q. That's an e-mail, correct?
4 A. Yes.
5 Q. And the two pages that follow that e-mail, which are Bates
6 numbers 1503 and 1504, what do these pages reflect?
7 A. They were the protocol.
8 Q. And if you would just explain how this works. You have
9 drafted this protocol, how are you going to now have it
10 implemented?
11 A. The State Department, Jesse Tampio, would be involved in
12 making sure that the people in Baghdad had this in their hands
13 and understood their instructions, depending on which category
14 the RSO personnel fell within it. If they were on the tainted
15 side, they were not to be providing any information to the FBI
16 or the investigators. If they were untainted, as we designated
17 them, they could have contact with the FBI, and they might be
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18 points of contact.
19 And the FBI would be aware of this and have this
20 protocol as well. And it was understood that this could be
21 modified by the FBI if they found that there were some issues
22 that somehow this didn't work.
23 Q. With regards to the State Department in Baghdad, the RSO,
24 did you, yourself, get involved in the details as to exactly
25 how the RSO himself would disseminate this information? Did
Linda L. Russo, RPR

1 that matter to you at all or not?
2 A. I did not get involved with that. One of the things I did
3 through this process was to make sure Mr. Tampio understood the
4 significance of this and the sensitivity of a Garrity issue.
5 And so as he got to understand that issue, he became very
6 careful about conveying the right information.
7 Q. And if you could turn to DOJ-001503, the various bullets
8 that are listed under the first category for the RSO Baghdad
9 personnel, what's the thinking behind these bullets that you
10 and Mr. Tampio drafted?
11 A. The thinking is that the sworn statements in particular
12 may be deemed compelled statements, and that we need to
13 identify who it is that had seen those, had been exposed to
14 them, so that we could make sure that they were not in contact
15 with the people who would be investigating the shooting.
16 Q. Now, at this time, at this early stage, were you fully
17 aware of all the potential statements that were out there or

18 not?
19 A. As of this date I believe I was. I believe I was aware
20 that there had been statements given before and after the sworn
21 statements of September 18th.
22 Q. But did you have like a complete, to your knowledge,
23 catalogue of every single memorandum of interview, every set of
24 notes, every sworn statement in your possession, or was it more
25 categorical you understood what was there?
Linda L. Russo, RPR

1 A. It was categorical.
2 Q. Now, let me have you draw your attention to a couple of
3 bullets here that I was going to ask you about. About, it
4 looks like the fourth and the fifth bullets. Do you see the
5 bullet that begins, identify what, if any, information
6 regarding the initial investigation that has already been
7 shared with the Iraqis?
8 A. Yes.
9 Q. Now, what was your understanding as far as what other
10 governmental bodies were investigating this event besides DOS?
1 1 A. It was my understanding that the Iraqi police had done,
12 were doing some investigation of it. I don't know what, I
13 can't say as I sit here today, that I know what body, what
14 government entity in Iraq was doing it, but I believe that the
15 Iraqis had done some.
16 Q. And did you come to learn that the Defense Department also
17 were involved in an investigation?

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18 A. Well, right. Prior to the time that I was assigned, the
19 RSO had conducted an investigation.
20 Q. I'm sorry, maybe I misspoke. Besides the RSO and Iraqis,
21 were you aware of any other U.S. government agency that was
22 involved in the investigation?
23 A. Yeah, the Department of Defense had done some
24 investigation.
25 Q. Now, the bullet right below that, the one that begins, do
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1 not communicate, it says, do not communicate directly with the
2 FBIIDS personnel conducting the investigation, regarding any
3 aspect of the initial investigation, or the new investigation;
4 do you see that?
5 A. Yes.
6 Q. Now, was this your advice for DS and FBI as to how they
7 were going to interact during this October trip?
8 A. Yes. This is a directive to anyone who had been
9 identified as someone who was exposed to the statements of the
10 Team 23 members.
11 Q. Could you just describe briefly how you and Mr. Mott
12 worked together to address the issue that came up concerning
13 the Defense Department's investigation?
14 A. In Mr. Mott and I spoke, I satisfied myself that he
15 understood the nature of the Garrity issue, and he did. I
16 can't recall whether he had experience with it or not, but he
17 understood it, and he undertook to review the I think fairly

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18 voluminous DOD materials, find out how they had conducted their
19 investigation, and determine whether there were any materials
20 in there that we needed to filter to determine whether they had
21 come from the statements of the Team 23 members.
22 Q. And what, if any, documents did Mr. Mott decided initially
23 to take out?
24 A. He and I jointly decided that there were three interviews
25 that needed to be removed, because it was my understanding that
Linda L. Russo, RPR

1 those interviews were conducted jointly by DOD investigators
2 and RSO investigators.
3 Q. At this time did you know specifically like what questions
4 were being asked by the DOD person versus the DOS person or
5 not? ,
6 A. I believe, in looking back at my e-mails, that there was
7 some indication that the RSO investigators were actively
8 involved in those interviews.
9 Q. Did you come to revisit this issue months later?
10 A. I did.
11 Q. What was the ultimate resolution of these interview
12 reports that were pulled out of the DOD interview investigation
13 file?
14 A. I reviewed the interview reports myself again, and made a
15 determination that the information in there appeared to come
16 directly from these witnesses own observations on the scene,
17 and that there was no indication that their information was

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18 coming from anything that was derived from Team 23 statements.
19 Q. After the FBI had been on the ground for a little over a
20 week, did you have occasion to attend a meeting with the
2 1 Assistant Attorney General of National Security Division,
22 Mr. Wainstein and Mr. Mullaney, concerning the status of the
23 investigation?
24 A. I did.
25 Q. And let me direct your attention to DOJ-001522, which is
Linda L. Russo, RPR

1 still in the same exhibit, Government Exhibit 54. What does
2 this e-mail reflect?
3 A. Since I had sat down with the people who were on the clean
4 side of the investigation, I just wanted to record in an e-mail
5 why we had met and what I was conveying to them. This was
6 really a fairly initial meeting with Mr. Wainstein to describe
7 for him what the issues are.
8 Q. Before we actually get into some of the items that you
9 describe occurring at the meeting, could you describe what, if
10 anything, you told Mr. Mullaney and Mr. Wainstein concerning
11 the Garrity issue that you perceived as being in this
12 investigation?
13 A. I think I conveyed to them the general legal idea that if
14 a government employee is compelled to give a statement under a
15 threat of loss of employment, or loss of a contract in this
16 instance, that the statements can be deemed a compulsion under
17 the Fifth Amendment. And if that's the case, if the employee

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18 or contractor subjectively believes .that, and if somebody
19 determines that that was a reasonable view that they had, that
20 those statements can be deemed compelled.
21 Q. Did you indicate that there was both a subjective and an
22 objective part of this analysis?
23 A. I believe I did. I don't know exactly when I did that
24 with Mr. Mullaney, but I'm fairly certain we talked about that.
25 Q. And, again this is early on, did you feel yourself that
Linda L. Russo, RPR

1 you had complete command over what the interview process was
2 that the RSO had undertaken concerning the Nisur Square
3 incident or not?
4 A. I don't think I did at this point. We were gathering
5 information about what interviews took place and when, and so I
6 was simply going to be very cautious about what they would be
7 exposed to.
8 Q. Now, getting back to the e-mail on October 10, 2007, could
9 you read the second sentence of the first full paragraph that
10 begins "You indicated."
11 A. . You indicated ,that you have avoided media accounts about
12 the incident, and I indicated that even the earliest media
13 accounts may contain information from Blackwater personnel, and
14 thus should be avoided.
15 Q. And the "you" there, that's the pronoun "you" that's in
16 that sentence, what is that referring to?
17 A. This is really anyone who is working on the investigation

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18 in the National Security Division.
19 Q. The people on the clean side?
20 A. Yes, sir.
21 Q. Now, jumping down to the next paragraph, you see that it
22 refers to some work as you described just a moment ago that you
23 and Mr. Mott did, correct?
24 A. Yes.
2.5 Q. Could you read the highlighted sentence that begins "the
Linda L. Russo, RPR

1 RSO did not provide."
2 A. The RSO did not provide the compelled statements or
3 evidence derived from them to the military investigators.
4 Q. What would have been your basis for knowing that at that
5 point in time as the taint attorney looking into this?
6 A. Information that I got from Mr. Mott.
7 Q. You also give some advice down below, correct, concerning
8 what the FBI can do?
9 A. Yes.
10 Q. And could you read the sentence that begins "the FBI is
11 free."
12 A. The FBI is free to seek any physical evidence from the
13 RSO.
14 Q. To your knowledge, did the FBI then follow that advice and
15 seek physical evidence?
16 A. I believe they did.
17 Q. All right. In the e-mail you just read, one of the first
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18 things you talked about was this issue about media, people
19 being exposed to media accounts. Did your guidance in terms of
20 avoiding media counts stop on October loth, 2007, or did you
21 make other efforts as the investigation continued for people to
22 avoid being exposed to these statements potentially through the
23 media?
24 A. I remember at least one other occasion where I reminded
25 Mr. Mullaney of the issue, and I also remember clearing at
Linda L. Russo, RPR

1 least one article after determining that it didn't have any
2 information from compelled statements.
3 Q. So then in your role, you both stopped, tried to stop some
4 articles or media accounts from going to them, and also
5 provided them with some; is that fair to say?
6 A. Yes.
7 Q. I have what's marked for identification Government's
8 Exhibit 55.
9 MR. KASTER: Your Honor, without objection, I would
10 offer it into evidence at this time.
13 BY MR. KASTER:
14 Q. Mr. Hulser, would you mind briefly pulling that out.
15 A. Yes.
16 Q. The first page of Government's Exhibit 55 appears to be an
17 e-mail from Mr. Mullaney to you?

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18 A. Yes.
19 Q. And the third full paragraph there, what is he relaying to
20 you concerning -theissue about media exposure?
2 1 A. He's saying that he noticed an article in the Post that
22 was about the shooting incident, and said it was another day he
23 couldn't read the newspaper.
24 Q. And then the next page is an e-mail from you to
25 Mr. Mullaney, correct?.
Linda L. Russo, RPR

1 A. Yes.
2 Q. And what was the purpose of you sending him that e-mail?
3 A. These were links to newspaper articles in the Post and the
4 Times that I reviewed and passed on to him because they did not
5 contain information from any statements by the Team 23 members.
6 Q. And then if you could please turn the page to the next
7 e-mail.
8 A. Yes.
9 Q. In that e-mail, which is actually a few weeks ahead,
10 November 15th, what does that reflect you doing?
11 A. I noted for Mr. Mullaney and Mr. Rowan that there
12 continued to be articles about the shooting, and that this onef
13 in particular in the Post contained information that was
14 derived from statements of Team 23 members, what I called
15 compelled statement.
16 Q. Now, let me just step back for a minute. In terms of how
17 the taint filter process is set up, are you in direct contact
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18 with the agent in charge of .the investigation to deal with
19 issues like this or not?
20 A. I am not. I was working through Mr. Mullaney.
21 Q. And did you have a view as far as how your guidance would
22 be shared among the clean team, how that would happen?
23 A. It was my understanding that Mr. Mullaney was in charge of
24 making sure that the directions were given, and that I would
25 not be doing it directly, but through him.
Linda L. Russo, RPR

1 MR. CONNOLLY: Your Honor, I don't have an objection,
2 I have a point of clarification. I don't understand the
3 difference between the clean team and dirty team. If we could
4 just explain that, who is on the clean side who is on the dirty
5 side.
6 MR. KASTER: I could go back to that, Your Honor. I
7 thought I did that at the beginning of my examination where I
8 was trying to identify the people that --
9 THE COURT: The clean team are the people who are
10 operating free of any taint or exposure to taint?
11 MR. KASTER: Correct, they're the individuals that
12 investigated this case, Agent Patarini, and then at the
13 beginning Mr. Mullaney, then AUSA Kohl, and the other members
14 of the FBI team. The individuals who were looking at the taint
15 or the filter issues as identified by Mr. Hulser was himself
16 initially, and Mr. Mott in Baghdad during the October trip of
17 the FBI.
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18 THE COURT: How do you refer to them?
19 MR. KASTER: I refer to them as the taint, or the
20 filter team.
21 THE COURT: All right.
22 BY MR. KASTER:
23 Q. Let me ask one more question to help clarify this a little
24 bit more. Apart from Mr. Mott, Mr. Hulser, did anyone else
25 apart from -- strike that question.
Linda L. Russo, RPR

1 Apart from Mr. Mott and Mr. Tampio, were there any
2 other attorneys assisting you with the taint review from the
3 beginning of the investigation up until, say, the fall of 2008?
4 A. No.
5 Q. Now, getting back just to the media stories and the
6 guidance in that regard, if you could just turn to the last
7 page of Government's Exhibit 55, which is DOJ-1600.
8 A. Yes.
9 Q. This e-mail, there's an e-mail exchange here between you
10 and Mr. Mullaney, correct?
11 A. Yes.
12 Q. Very briefly, the original e-mail in this e-mail chain,
13 what does it describe?
14 A. I told Mr. Mullaney and Mr. Roan that there was an article
15 that included information from compelled a statement, and that
16 they should avoid -- be careful regarding media exposure. So
17 it was a reminder.
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18 Q. What, if anything, did Mr. Mullaney say back to you, to
19 your reminder?
20 A. He said back, I had all .the agents instructed last evening
2 1 not to read these articles. Ken Kohl the AUSA in D.C. on the
22 case, gave the warnings.
23 MR. KASTER: The Court's indulgence. I'm sorry
24 BY MR. KASTER:
25 Q. Before we leave the discussion about the FBI's first trip
Linda L. Russo, RPR

1 in October of 2007, did there come a time when there was a
2 request made by the FBI concerning files of prior incidents
3 involving Blackwater guards?
4 A. I believe there was, while they were in Baghdad, yes.
5 Q. And did you come to learn about this request while they
6 were actually still in-country?
7 A. I believe so. Mr. Tampio forwarded me a request that they
8 had made.
9 Q. Okay. And what was your reaction to the, just the general
10 request of the FBI to receive prior incident files?
11 A. This is something that we had experienced before. If
12 there were other incidents in which there had been shootings,
13 the individuals who had done the shooting might have given
14 statements in those incidents that could have been compelled as
15 well. And so from our experience, we recognized that that
16 could be a problem, too.
17 Even though those statements didn't relate to the

18 shooting on September 17th, they could still be protected by
19 the Fifth Amendment. They could be compelled statements by the
20 people -that.they are investigating, and so we would put those
21 on the tainted side of the house and make sure that the FBI and
22 the National Security Division didn't get those statements.
23 Q. Did you prepare any written guidance to address this
24 concern you had about the FBI getting access to these prior
25 incident files?
Linda L. Russo, RPR

1 A. Yes, I did.
2 Q. Again, with regards to Government's Exhibit 54, if I could
3 have you turn your attention towards the back of it, the Bates
4 number is DOJ-001556.
5 A. Yes.
6 Q. And this e-mail that's dated October 24, 2007, with an
7 attachment, if you could quickly look at the attachment.
8 A. Yes.
9 Q. What does the e-mail and the three page attachment
10 reflect?
11 A. I went to the State Department and reviewed some prior
12 incident files that involved Team 23 personnel, and I did an
13 analysis of those and I provided some guidance regarding which
14 materials from those files could be provided by the State to
15 the FBI, and which could not.
16 Q. Now, at this point of the investigation, and to be
17 specific I'm talking October 24, 2007, what, if anything, are

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18 you developing concerning a general set of guidance as far as
19 what the clean FBI team should avoid concerning the statements,
20 or the types of statements, that you've learned the Diplomatic
21 Security Service had prepared as part of their investigation?
22 A. It became clear that there were several different types of
23 statements that were produced after a shooting incident. There
24 were written reports, called after-action reports. There were
25 incident report. There were oral statements given to RSO
Linda L. Russo, RPR

1 investigators. There were typed sworn statements given. And
2 there were a series of them.
3 Q. And had you prior experience dealing with RSO
4 investigations and the types of procedures that they followed
5 before this case?
6 A. Not with RSO, not in an incident like this, no.
7 Q. In your role as a taint or filter attorney, were you on a
8 daily basis with the investigative team or not?
9 A. No, I was not.
10 Q. Did there ever come a time when you, yourself, went to
11 Baghdad to interview the RSO or any of the agents working for
12 the RSO?
13 A. I did not.
14 Q. How, if at all, did your unfamiliarity with the RSO's
15 procedures inform your legal judgment about what statements the
16 FBI would be permitted to see and which ones they should avoid?
17 A. In performing my role as a filter attorney in this case

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18 and in others, it's always about risk assessment. So I didn't
19 have all of the facts. It seemed to me that even the earliest
20 statements given by the Team 23 personnel might later be deemed
21 by a Court to be compelled. And so it was my advice that the
22 clean team stay away from all of the statements given by the
23 Team 23 members.
24 Q. And that type of advice, from your perspective, would that
25 be fixed in stone during the investigation, or would you
Linda L. Russo, RPR

1 consider ever modifying it as the investigation progressed?
2 A. It was, again, a simply risk assessment. So if they
3 develop information that suggests that these statements really,
4 the earliest statements let's say, let's say the September 16th
5 statements, were really not compelled in any way, that there
6 were some oral warnings given, or something about the
7 atmosphere that made clear that these were not compelled
8 statements, then that -- it's a very fact-based inquiry, and as
9 we said before, it's a subjective test in part.
10 So any fact can influence whether the Team 23 member
11 thought it was compelled or not. So the conclusion about it
12 would have to be made after all of the facts were in on that,
13 and certainly at this point I didn't have all of those.
14 Q. Now, Mr. Hulser, let me ask you to turn your attention --
15 MR. KASTER: The Court's indulgence, one moment,
16 please.
17 BY MR. KASTER:
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18 Q. Back to the investigation, in the fall of 2007 after the
19 FBI gets back from Baghdad, I'm talking November, December of
20 2007, okay?
2 1 A. Uh-huh (Indicates affirmatively).
22 Q. If you wouldn't mind pulling out Government's Exhibit
23 Number 56 which is in your folder.
24 MR. KASTER: Your Honor, defense counsel indicated no
25 objection, so I'd offer Government's Exhibit 56 into evidence
Linda L. Russo, RPR

1 at this time.
4 BY MR. KASTER:
5 Q. Now, Mr. Hulser, before I get into a few questions
6 concerning this exhibit, could you describe for the Court the
7 role that you're playing then as a filter or taint attorney
8 after the FBI gets back for that falllwinter of 2007? What
were the types of assistance that you were providing to the
clean team, the FBI agents and the AUSAs that were
investigating the case?
A. I would see requests either from Mr. Mullaney or requests
that Mr. Tampio advised me of, where the FBI, the investigative
team, wanted some information. I would do really two things.
One was, I would either say yes or no to a category of items,
say no they shouldn't get those. And in some instances I had
to go to the documents and review them, and pull things out of

18 them, literally blocking them out, redacting them out, and then
19 providing a clean set to the investigative team.
20 Q. Let's start first then with what you just described in
21 terms of reviewing and redacting. Let me have you turn to what
22 is marked as DOJ-001657.
23 A. Yes.
24 MR. CONNOLLY: May I inquire whether this is exhibit
25 within Exhibit 56?
Linda L. Russo, RPR

1 MR. KASTER: Yes.
2 THE COURT: 1657?
3 MR. KASTER: I'm sony, Your Honor, if the Bates
4 numbers are perhaps not in direct order, it's 001657, it's
5 about halfway through this exhibit. It's an e-mail dated
6 January 8, 2008.
7 THE COURT: I have it.
8 BY MR. KASTER:
9 Q. Mr. Hulser, this page, 001657, it reflects a series of
10 e-mails, correct?
11 A. Yes.
12 Q. And there's two pages attached to it. Could you briefly
13 describe what is occurring with this e-mail chain and the
14 attachment that you play a part in?
15 A. On this and other occasions, Mr. Mullaney told me that
16 there were certain members of Team 23 who were no longer
17 subjects of their investigation, or targets. They were people

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18 whose statements he wanted to get. So I physically pulled
19 those statements out, reviewed them to see whether I thought
20 there was any information in those that might come from
21 compelled statements of other Team 23 members who were still
22 potential subjects, and I would provide to Mr. Mullaney the
23 sworn statement of the people who were no longer subjects.
24 And I also would look to the interview reports for
25 the oral interviews of the Team 23 members who were no longer
Linda L. Russo, RPR

1 subjects, and try to give him the portion of that interview
2 report that reflected the interview of those Team 23 members
3 who were no longer subjects, but I would redact out of those
4 interview reports information that came from Team 23 members
5 who were still potential subjects or targets.
6 Q. So the attachment then to this e-mail, which is on
7 DOJ-001655, and the next page, does that reflect some of your
8 handiwork in redacting documents for Mr. Mullaney?
9 A. Yes.
10 Q. Now, apart from document questions you may have gotten
11 from Mr. Mullaney directly, did you on occasion also receive
12 questions from Mr. Tampio as far as what was proper or improper
13 for the clean team to look at?
14 A. Yes.
15 Q. If you could turn to .the next page, which is DOJ Bates
16 001452, and I'll put it up on the Elmo. Now, these two
17 e-mails, what do these e-mails reflect happening?

18 A. Mr. Carpenter, Ted Carpenter, was in the RSO in Baghdad.
19 He was somebody that Mr. Tampio was dealing with directly on
20 this. Mr. Carpenter was on the tainted side, as was Mr.
21 Tampio. Mr. Carpenter was following the protocol by passing on
22 to Mr. Tampio a request that the FBI wanted certain
23 information. So he was passing on to Mr. Tampio, and then Mr.
24 Tampio passing on to me information for review before it would
25 go to the investigators on the clean side.
Linda L. Russo, RPR

1 Q. And then what would be you looking for when you got the
2 documents?
3 A. I would review these documents to determine whether there
4 were any statements by Team 23 members who were still subjects
5 or 'targets of the investigation.
6 Q. And then just finish the process. What would you do once
7 you made that determination?
8 A. So there could be two things to do. One would be a
9 categorical no, they can't have this document. And the other
10 would be, if there was a portion of the document that I thought
11 they could have because it didn't come from a Team 23 member
12 who remained a subject or target, then I would redact out the .
13 portions that I thought the clean team should not have, and
14 give them the rest.
15 Q. Now, getting back to your legal viewpoint as far as the
16 risk benefit about disclosing certain State Department
17 documents to the clean time, let me ask you a couple more

file:///H~/BW/Project%20Witness%20Redactn/09-
18 questions about that.
19 A. Yes.
7
20 Q. Did you explain to anyone on the clean team your viewpoint
21 that caution was needed concerning whether or not they should
22 look at the oral interviews?
23 A. I believe I conveyed that to Mr. Mullaney, and I certainly
24 had discussions with Mr. Tampio about that issue.
25 MR. KASTER: I have marked, Your Honor, Government's
Linda L. Russo, RPR

1 Exhibit Number 57 for identification. Your Honor, with no
2 objection from the defense counsel, I would offer it into
3 evidence at this time.
6 BY MR. KASTER:
7 Q. Okay, Mr. Hulser, do you have Government's Exhibit 57 in
8 front ofyou?
9 A. I do.
10 Q. Okay. Now, did there come a time in December of '07 where
11 you learned that the clean team, the investigating team, wanted
12 to actually talk to the RSO?
13 A. Yes.
14 Q. And what was your reaction to the notion that they could
15 talk to the RSO?
16 A. My reaction was that that was a risky thing to do because
17 the RSO had been exposed to statements by Team 23 members.

file:///H~/BW/Project%20Witness%20Reda~tion/O9-
18 Q. Okay. And did they relay to you sort of their rationale
19 for what kind of information they hoped to get from the RSO?
20 A. I think they understood that they shouldn't be trying to
21 get information from anyone on the tainted side about what the
22 Team 23 members had said in their statements. So they would
23 leave that out of their questioning, and they were willing to
24 just focus on the mechanics of what happened immediately after
25 the shooting back in the TOC, as they referred to it.
Linda L. Russo, RPR

1 Q. And let me have you look at Government's Exhibit 57, then.
2 A. Yes.
3 Q. The e-mail chain that comprises the first page, or two
4 pages, of Government 57, what does that reflect?
5 A. They were asking to speak with the RSO and his deputy, and
6 my response back to Mr. Mullaney was, are you sure you need to
7 interview them at this point? In evaluating the risks, you can
8 decide later that you absolutely must talk to them, and then
9 the benefit of talking to them outweighs whatever risk there
10 might be to being exposed to their information. So I'm asking
11 how much do you need to talk to them. And then I explain why I
12 had concerns about the statements that took place even before
13 the written statements on September 18th.
14 Q. And do you describe for Mr. Mullaney your assessment of
15 the risk that would be posed by such an interview?
16 A. Yes, I do.
17 Q. And is that reflected here in the e-mail at the top, on

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18 the December loth, 2007, e-mail that you wrote back to
19 Mr. Mullaney?
20 A. Yes.
2 1 Q. A moment ago you looked at an e-mail from Mr. Carpenter
22 where he had forwarded some documents to Mr. Tampio; do you
23 recall that?
24 A. Yes.
25 Q. Okay. Did that request for documents prompt any e-mail
Linda L. Russo, RPR

1 exchange between you and Mr. Tampio concerning this topic of
2 your legal guidance to the clean team, as far as what they
3 could look at?
4 A. If you could point me to it.
5 Q. Sure. Within Government's Exhibit 57, if you could turn
6 three pages in, which is DOJ-001453.
7 A. Yes.
8 Q. And, in particular, I guess the second e-mail there, does
9 that reflect an e-mail from you to Mr. Tampio dated January 15,
10 2008?
11 A. Yes. So I am conveying to Mr. Tampio the same thing that
12 I conveyed to Mr. Mullaney in December, which was that the
13 earlier statements even before September 18th may be a problem.
14 Q. The first sentence there that reads, Jesse, I have been
15 taking a conservative approach regarding any statements taken
16 after the 9/16 incident, whether they occurred before or after
17 the sworn written statements.

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18 A. Yes.
19 Q. What was the basis for your conservative approach?
20 A. It involves evaluating the risks of being exposed to those
21 materials. Until a Court later could look at all of the facts
22 surrounding how the statements were obtained on 9/16, we
23 couldn't be sure that they would be free from compulsion. And
24 so unless you really need those at this point in the
25 investigation, you shouldn't get them because there's a risk
Linda L. Russo, RPR

1 that those statements themselves may be tainted.
2 MR. KASTER: Your Honor, I actually was about to
3 start off slightly in a different direction. I don't know if
4 the Court wants me to do that, continue on. I think it's five
5 minutes 'till, if you wanted me to stop.
6 THE COLTRT: It's about ten 'till. We can stop at
7 this point.
8 MR. KASTER: Very well. Thank you, Your Honor.
9 THE COURT: All right, sir, you can step down.
10 You're not prohibited from speaking to the government about
11 your testimony because you have not been submitted for
12 cross-examination.
13 THE WITNESS: Thank you, Judge.
14 THE COURT: All right, unless there's anything
15 further tonight, we will simply resume at 10:OO tomorrow
16 morning.
17 MR. HULKOWER: If I can raise one issue. We have had

18 discussions with the government about a discovery issue that is
19 going to be ripe very quickly as the prosecuting attorneys take
20 the stand. And that is, we have requested repeatedly over a
2 1 period of time that we would receive access to the prosecution
22 memo in this case. And what that is, that's a memo prepared by
23 the prosecutors, Mr. Kohl and Mr. Malis, that goes to the very
24 subject of the case.
25 Not only does it discuss the Kastigar issue and the
Linda L. Russo, RPR

1 potential for taint, it also lays out the information that
2 they're using to convince their higher-ups that they should be
3 allowed to bring this case. It relates directly to the topic
4 of the testimony, which is what evidence was relied upon.
5 So, therefore, it strikes us as quintessential
6 Jencks, both because it deals with the Kastigar issue, and it
7 discusses the evidence that is being used by the prosecutors.
8 We have been given two small redacted pieces from
9 that document, but in no way does it give us the information
10 that's being used to convince the higher-ups to allow us to
11 cross-examine the prosecutors on whether they used tainted
12 information. And it doesn't give the prosecutors own
13 statements about the taint issue that we can use to
14 cross-examine them.
15 I'm not sure why we haven't gotten it, since it
16 relates directly to the subject of their testimony, which is
17 the evidence and the taint issue, but in conversations with Mr.
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18 Kaster, who I generally found to be reasonable in this case, I
19 have not been able to get the document. And because they're
20 going to start putting the prosecutors on tomorrow, I hope, I'd
2 1 like to get the document.
22 THE COURT: Mr. Kaster.
23 MR. KASTER: Your Honor, the reason that I have not
24 been -- I've been unable to meet this request is, there's
25 several reasons, actually. First, just so the Court knows what
Linda L. Russo, RPR

we're talking about, the prosecution memo is a document that
the trial team prosecutors prepared prior to the indictment in
the case, and it summarizes essentially classic attorney work
product, mental impressions, their assessment of the strengths
and the weaknesses.
THE COURT: Hold on just one minute.
(There was a pause in the proceedings.)
THE COURT: All right.
You said that the prosecution memo actually
summarizes.
MR. KASTER: Yes, it is a summary of the line
prosecutors' views of their entire case. It's classic attorney
work product, the mental impressions of those two prosecutors
concerning the strengths and the weaknesses of their case that
they will be presenting to this Court at trial. It covers a
whole gambit of issues before the Court, including venue, MEJA,
a self-defense issue concerning the merits, the underlying

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18 charges, and as such it is (A) not a substantially verbatim
19 document for what they're going to testify here today or
20 tomorrow, Your Honor, in this Kastigar hearing. And, two,
21 their thoughts and explication of what the law is, is not
22 something that the defense counsel, I would submit, is entitled
23 to.
24 So what we have done, Your Honor, is, we have
25 reviewed the document, Mr. Dittoe and myself, we actually
Linda L. Russo, RPR

1 reviewed drafts to see if there was any Brady information on
2 this Kastigar issue. In a draft we found a blurb, an excerpt
3 dealing with the issue that Mr. Schertler raised concerning his
4 client. And the fact that, just to refresh the Court's
5 recollection, Mr. Schertler indicated that Mr. Kohl had made a
6 sort of an initial inquiry concerning potential disposition of
7 the case and referenced Mr. Heard's oral interview of September
8 16th. And so we found that in a draft, and so we pulled that
9 out and we produced that to Mr. Schertler.
10 We have also gone through the prosecutors' e-mails
11 and their notes to see if there was any other Brady, but also
12 we produced those e-mails that were relevant to this hearing as
13 Jencks. And within that, the defense does have e-mails
14 reflecting before the finalization of the prosecution memo,
15 some discussions among the prosecutors as far as the
16 GarrityIKastigar issue.
17 THE COURT: Have you produced those?

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18 MR. KASTER: We did produce those, Your Honor. But
19 we felt that we could do that, but we had to respectfully
20 decline Mr. Hulkower's request to get the entire prosecution
2 1 memo, which as I said, is essentially the road map for the
22 prosecutors for how they're going to try their case and how
23 they're going to present it to the Court.
24 And we would submit that it would be entirely unfair
25 for .the defense to have that under the guise of the Kastigar
Linda L. Russo, RPR

1 hearing, to be able to have that document in-hand going forward
2 to trial, knowing the prosecutors assessment on all of these
3 issues as far as the strengths and weaknesses of their case.
4 And so for those reasons we feel that the defense's
5 request should be denied.
6 MR. HULKOWER: Briefly, they can get rid of MEJA and
7 venue. That has nothing to do with Kastigar. I'm not looking
8 for that.
9 The claim that this is work product, we are so far
10 beyond a work product claim here, because they recognize as
11 Jencks that we get Mr. Kohl's statements. We are looking at
12 documents right now that have legal debates, and we're going to
13 be seeing more of them tomorrow, legal debates between
14 Mr. Hulser and Mr. Kohl about what the law requires for Garrity
15 material. So we are beyond the work product analysis.
16' What we -- this is verbatim because it is the
17 verbatim statement of the prosecutor. It is the prosecutor's

10-22%20-%20HuIser%20Testimony%20%2OPart%200 1 .txt
18 own writing which I believe in section A4 of Jencks Act is
19 covered, writings by the witness. This is a writing by the
20 witness, so there's no question it's verbatim.
21 As far as work product, if the Court looks through
22 the documents the prosecutor's produced to this point, and by
23 the prosecutor I mean Mr. Kaster, we are getting into, as we
24 have to with these witnesses, what their thoughts process was.
25 They are asking Mr. Hulser what his thought process was. They
Linda L. Russo, RPR

1 will be asking, I am confident, because it's directly on point,
2 Mr. ~ a l i and
s Mr. Kohl what their thought process was. And how
3 we can cross-examine them if we don't have the most direct
4 statement by them as to what their thought process was and how
5 they are using the evidence, and we believe the tainted
6 evidence, which Mr. Hulser has already told us today in his
7 brief period, they never should have gotten hold of. This is
8 depriving us of what is critical Jencks.
9 We're not looking for the road map. We're looking
10 for the evidence they used to convince their higher-ups to let
11 this case go forward. Because if they used tainted evidence --
12 THE COURT: I'm not clear. What is it in these memos
13 that's going to be persuasive on the issue of taint?
14 NIR. HULKOWER: Two things, Your Honor.
15 THE COURT: You expect this memo to say we want to
16 use tainted evidence, but this is how we're going to do it?
17 NIR. HULKOWER: No, I don't think it will, because

0-220/020-%20Hu1ser020Testimony%20%20Pa%200I .txt
18 even when Mr. Kohl is asking and taking evidence in this case
19 that Mr. Hulser has said is tainted, and we'll see that
20 tomorrow --
21 THE COURT: What is the Garrity issue in this case as
22 it currently stands? There's no Garrity issue, the government
23 has conceded that a certain group of statements cannot be used.
24 They're not going to use them. So what's the residual Garrity
25 issue?
Linda L. Russo, RPR

1 MR. HULKOWER: I think the residual Garrity issue, I
2 think the only thing they're holding out on is what Mr. Hulser
3 was talking about today, which are the December 16th oral
4 statements that Mr. Hulser said they shouldn't get because
5 they're part of the same process, and the Court could
6 reasonably believe they are compelled. That's what they're
7 still holding out on.
8 And what we believe is, if there is evidence to be
9 found of the prosecutors using it, clearly it will be in the
10 memo where they lay out their evidence. They're not going to
11 say this is tinted evidence, but we should see what their
12 evidence is that they're using, what they're claiming.
13 THE COURT: Let me see. So if Mr. Hulser has a
14 difference of opinion with Mr. Kohl about whether the December
15 16th--
16 MR. HULKOWER: I'm sorry, September 16th. That was
17 September.
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18 THE COURT: All right, September 16th statements.
19 All right, now I'm back on track.
20 MR. HULKOWER: I took you down the wrong road.
21 THE COURT: The September 16th oral statements that
22 were memorialized but not signed.
23 MR. HULKOWER: Right.
24 THE COURT: So if Mr. Kohl says, no, these statements
25 are good to go, and Mr. Hulser says, no, these statements are
Linda L. Russo, RPR

1 not good to go, how does that entitle you to them?
2 MR. HULKOWER: First of all, we have already seen,
3 we've already been given some evidence of it, which falls right
4 into that category.
5 THE COURT: Of what?
6 MR. HULKOWER: Of Mr. Hulser saying no, and Mr. Kohl
7 saying yes. So it seems clear that you can't give us -- they
8 can't give us, part of the work product and withhold the rest
9 and say, well, this is other work product, because we've
10 already gotten the no versus yes.
11 But where it's relevant, Your Honor, and I think this .
12 is where the rubber meets the road, is, Mr. Hulser was
13 interposed as the filter team, or the taint team, because he
14 had expertise from his role at Public Integrity dealing with
15 government officials. He knew Garrity, which he said was a
16 somewhat esoteric topic, not a lot of people understood. He
17 knew Kastigar, and he was put in there to protect the

file:///HI/BW/Project%20Witness%20RedactioO9-lO-22%20-%20Hulser%2OTestimony%20%20Part%200 I .txt
18 prosecutors, to protect the agents from taint. That's why they
19 make such a big deal about these newspaper articles.
20 THE COURT: And are you all claiming that the
21 September 16th statements were put, indeed, before the grand
22 jury?
23 MR. HULKOWER: Witnesses who had access to the
24 September 16th statements were put in front of the grand jury.
25 We think that there is some testimony already in the record
Linda L. Russo, RPR

1 that we can point to that witness have said, such as
2 Mr. Murphy --
3 THE COURT: How would you impeach, let's say Mr.
4 Kohl, when he says, no, this is good stuff, this is fine, this
5 is Garrity, this is okay. And Mr. Hulser says, well, no, I
6 don't think so, I have a difference of opinion, how would you
7 windup impeaching Mr. Kohl.
8 MR. HULKOWER: Well, it's not just a difference of
9 opinion. It's almost like if you and I had a difference of
10 opinion on the law.
11 THE COURT: I can't conceive that.
12 MR. HULKOWER: But you win. You're the judge. You
13 win. Here we have the taint team attorney who is in there to
14 be the judge of this evidence, and he says, stay away from it,
15 Ken, it's bad evidence. He says it 15 times. And we've heard
16 all the efforts the prosecution team made willy-nilly to get
17 their hands on the Carpenter stuff, the Lopez stuff.

l0-22%20-%20Hlser%20Test1mony%20020Pa%200 I .txt
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18 I understand the evidence coming somewhat
19 disjointedly, but when one look at it chronologically, what's
20 happening here, Judge, is, the taint team is saying, you
21 shouldn't get it. They're saying time and again, don't get the
22 oral statements; you shouldn't get the oral statements. And
23 the prosecutors are doing everything they can to get the oral
24 statements. Ultimately running an end-run and not even telling
25 Mr. Hulser some of what they're doing to get the oral
Linda L. Russo, RPR

1 statements.
2 So it's to us classic impeachment of Mr. Kohl that
3 not only is he accessing this material that he's being told not
4 to, but that at some point he also, and we believe the evidence
5 will show this, we certainly have seen signs of it in the
6 documents, he's not telling Mr. Hulser, the taint attorney,
7 that he's getting this stuff. And this is the kind of stuff
8 that Mr. Hulser has already given advice about.
9 THE COURT: But wouldn't you already be able to
10 impeach Mr. Kohl based on what Mr. Hulser said by showing that
11 indeed Mr. Kohl did not follow Mr. Hulser's advice?
12 MR. HULKOWER: Well, certainly we will do that. But
13 it's always better impeaching somebody with their own
14 statements. I mean, I think Mr. Kohl is imminently impeachable
15 by the fact that the expert from DOJ who is put in by the real
16 high-ups that we've heard about to review this stuff, says,
17 don't. And Ken says, yes. And he says, don't. And Ken goes
10-22%20-%20Hulser%20Testimony%200/020Part0/0200 I.txt
18 and does it. But Ken's words, even more so, as would be found
19 in documents like that --
20 THE COURT: Will you be able to ask Mr. Kohl, aren't
2 1 there instances where you had a difference of opinion with
22 Mr. Hulser and did not take his expert advice about using
23 certain evidence, and then ask him what that evidence is,
24 wouldn't you able to do that?
25 MR. HULKOWER: I mean, certainly we have, I think,
Linda L. Russo, RPR

1 very good impeachment with what we're going to hear and what we
2 have already heard from Mr. Hulser and what we've seen in the
3 documents, but there's more impeachment out there. And if it's
4 in Mr. Kohl's work product, it is Jencks. We have already
5 received some of the work product. There's no valid claim at
6 this point to withhold work product that I see, and it really
7 does go to Mr. Kohl's decision-making process here.
8 And since they're going to put him up, it seems to us
9 that we're going to need -- they've back-loaded their case in
10 the sense that the heavy weight witnesses are about to hit the
11 stand right now, the prosecutors who made the decisions, the
12 ones who knowingly walked into the mine field of taint. And
13 impeachment is going to be very important here.
14 And it's not just the impeachment with what
15 Mr. Hulser said, but we also think it's impeachment with what
16 they said. And if we don't have the documents in Mr. Kohl's
17 own words, like this pros. memo, then he can deny it, and we
file:lllHJIBWIProject%20Witness%20RedactionlO9-10-22%20-%20Hulser%20Testimony%20%20Part0200 I .txt
18 have to take him at his word. And that deprives us of our
19 ability to impeach.
20 THE COURT: I understand your position.
21 MR. HULKOWER: Thank you. And I'm sorry for taking
22 time with this.
23 MR. KASTER: I will definitely put myself on the
24 clock. If I could respond very briefly.
25 The evidence in the record, they have it. They have
Linda L. Russo, RPR

1 everything. They have all the grand jury testimony, they have
2 the grand jury minutes about what Mr. Kohl said in front of the
3 grand jury.
4 The question -- they have these e-mails between Mr.
5 Kohl, an e-mail where he's talking about his legal theory as
6 far as whether or not the oral statements were protected under
7 Garrity or not. They have all of those. They have all of
8 Mr. Hulser's e-mails on the same topic.
9 So in terms of the types of relevant material that
10 they would need to impeach or question Mr. Kohl concerning his
11 differing legal opinion from Mr. Hulser, they have all that.
12 This perhaps is an example of no good deed goes
13 unpunished, all our efforts to get them all of this
14 information. And it's true, we even gave them some e-mails
15 where Mr. Kohl is describing his legal theory as to this issue
16 of whether the oral statements are covered leads them to try to
17 expand it into a demand for the entire pros. memo.

file:lllH~IBW/Project%20Witness%20RedactionlO9-10-22%20-%20Hulser%20Testimony0/0200/020Part0/0200I .txt
18 I think, Your Honor, ultimately it comes down to a
19 question of fairness in light of all the information they have
20 to test the witness' position on these issues. They don't need
-21 this.
22 THE COURT: All right, thank you. Well, I can easily
23 understand why the defense would want this. It would make a
24 potentially very useful and powerful bit of information in
25 evidence.
Linda L. Russo, RPR

1 But I think, Mr. Hulkower, it's more in the nature of
2 discovery than it is actually Jencks. I think that in weighing
3 what you've got and what you want, and considering that what
4 you're asking for is material out of the government's kind of
5 trial book, the thinking that's gone into the formation of the
6 prosecution in this case, that it does tilt in the direction of
7 being work product.
8 And, therefore, your request is denied.
9 MR. HULKOWER: Thank you, Your Honor. There's much
10 I'd like to say, but discretion being the better part of valor,
11 I'm sitting down.
12 MR. HEBERLIG: Briefly, I neglected to move in during
13 the Patarini cross Exhibits 5 1, 52 and 53-R, which were two
14 302s of Mia Johnson and her Powerpoint, and I'd ask that they
15 be admitted at this time.
16 MR. DITTOE: No objection.

IO-22%20-%20Hulser%2OTestirnonyY020Y02OPartY0200I .txt
18 (Defendant's Exhibits Number 5 1,52 and 53-R
19 received in evidence.)
20 THE COURT: All right, have a good evening. See you
21 tomorrow morning at 10:OO.
22 (Proceedings concluded.)
23
Linda L. Russo, RPR

1 CERTIFICATE
2 I, LINDA L. RUSSO, Official Court Reporter, certify
3 that the foregoing pages are a correct transcript from the
4 record of proceedings in the above-entitled matter.
7
Linda L. Russo, RPR
8 Virginia CCR No: 03 13 102
10
11
12
13
14
15
16
17
Linda L. Russo, RPR


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Case 1:10-mc-00005-RMU Document 47 Filed 03/02/10 Page 1 of 106

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF COLUMBIA

3 UNITED STATES OF AMERICA, . Docket No. CR-08-0360 (RMU)

12 For the Plaintiff! United States Department of Justice

19 For the Defendant Harris, Wiltshire & Grannis, LLP

Linda L. Russo, RPR

12 Court Reporter: Linda L. Russo, RPR

24 Proceedings reported by machine shorthand, transcript produced

Linda L. Russo, RPR

3 Q. Would you please state your name?

5 Q. How are you currently employed?

6 A. I'm a Deputy.Chief in the Public Integrity Section in the

7 criminal division of DOJ.

8 Q. Would you describe just very briefly your duties as a

9 Deputy Chief with the Public Integrity Section?

10 A. Sure. I help supervise litigation, and I help work on

11 policy and legal issues for the Department.

12 Q. With regards to your work with the Department, then, do

13 you have occasion to serve as a filter or a taint attorney for

14 attorneys within the Public Integrity Section?

15 A. I have done that, yes.

16 Q. About how frequently do'you engage in that type of

18 A. It doesn't come up under any regular schedule, but I have

19 definitely done it probably as many as ten times.

20 Q. When did you join the Department of Justice?

22 Q. And have you served in other sections, or have you served

23 your time in the Public Integrity Section?

24 A. I've been in the Public Integrity Section the entire time.

Linda L. Russo, RPR

1 to how you got involved with the current case, the

2 investigation of the shooting at Nisur Square on September 16,

3 2007, all right?

6 your assistance would be requested to work on this case.

7 A. I got a phone call from Ben Campbell, Benton Campbell, who

8 was at the time I think Acting Chief of Staff to the Assistant

10 a Deputy Assistant Attorney General in the criminal division,

11 and they informed me that there was an issue involving

12 potential Garrity problems in the investigation of a shooting.

15 A. I had. I had experience reviewing Garrity issues in

16 individual cases and working on it from a policy perspective as

19 going to be in this investigation?

20 A. Yes, although I think it was a bit uncertain at that

21 point, it was clear that they were reaching out to me because I

22 had experience with Garrity issues, and they wanted someone to

23 help manage the Department's way through that issue.

24 Q. Once you found out that this was going to be a new

Linda L. Russo, RPR

1 A. First I found out who it was I would be dealing with in

2 the National Security Division, which would be taking on the

4 Q. Let me stop you there. Why was the National Security

5 Division going to be taking the case? You work for the

6 criminal division, right?

7 A. I do. Some of the folks in the criminal division had

8 received statements from the Department of State that were

9 generated by Department of State investigators, and there was a

10 concern that those statements may have been compelled. And so

11 since people in the criminal division might have received

12 information derived from compelled statements, we decided to

17 as part of this investigation from the National Security

19 A. My main contact with the National Security Division was

20 Mike Mullaney, who was in charge of the counterterrorism

22 was the ~ s s i s t a nAttorney

23 Q. What about from the perspective of the State Department,