Update: I added LIO [lesser included offenses] to the transcript on November 10, 2012. As in "[the ruling] never considered [maximum punishment for] clause (1) and (2) LIO [lesser included offenses]". Also added a segment previously bracketed out as < p> ... < / p > That is bolded below.
US v. Pfc. Bradley Manning is being conducted in de facto secrecy. For more information on the lack of public and press access to United States v. Pfc. Manning, visit the Center for Constitutional Rights, which filed a petition requesting the Army Court of Criminal Appeals (ACCA) "to order the Judge to grant the public and press access to the government's motion papers, the court's own orders, and transcripts of proceedings, none of which have been made public to date."
At the last month's Article 39(a) Session, the public learned that defense counsel had submitted Pfc. Manning's plea and forum to the Court, referring to both the accused's statement of guilt or innocence per elements, specifications, or charges and the type of court martial he would choose.
According to a statement released by his lead civilian counsel this evening, Pfc. Manning "has elected to be tried by Military Judge." David Coombs further clarified that:
PFC Manning has offered to plead guilty to various offenses through a process known as 'pleading by exceptions and substitutions.' To clarify, PFC Manning is not pleading guilty to the specifications as charged by the Government. Rather, PFC Manning is attempting to accept responsibility for offenses that are encapsulated within, or are a subset of, the charged offenses. The Court will consider whether this is a permissible plea.
PFC Manning is not submitting a plea as part of an agreement or deal with the Government. Further, the Government does not need to agree to PFC Manning's plea; the Court simply has to determine that the plea is legally permissible. If the Court allows PFC Manning to plead guilty by exceptions and substitutions, the Government may still elect to prove up the charged offenses. Pleading by exceptions and substitutions, in other words, does not change the offenses with which PFC Manning has been charged and for which he is scheduled to stand trial.
The following colloquy concerning the plea and forum took place in Court today. The transcript was taken by hand, contains omissions, and may contain errors:
Judge Lind: Defense filed a plea and forum at the last Article 39(a). They have supplemented [that filing]...
Defense (Coombs): Appellate exhibit 342 is the plea and forum. [In that submission my client] accepted responsibility for certain charges and would plead to lesser included offenses within the charge sheet. Defense [then] revised [their submission]. [Appellate exhibit 360 was the supplement]. The Court, Government, and defense then met in an RCM [Rules for Court Martial] 802 [telephonic conference] to lay out specifications he would [subjunctive tense] plead to by exceptions and substitutions. [emphasis added]
Judge Lind: On 25 October 2012...[transcriber did not notate what this was]... Appellate exhibit 361. On 26 October 2012 Court issued a clarification on the Court's 19 July 2012 ruling, [which was] appellate exhibit 219. The appellate exhibit for the [Court's] clarification is 366. Defense responded to certain questions. Defense response is [appellate exhibit] 375. Government has a time period before they respond.
Based on the submissions...the [Court's] 19 July 2012 ruling on maximum punishment for Specification 1 of Charge II, 18 USC 641, 18 USC 793(e), and 18 USC 1030(a)(1)... [the ruling] never considered [maximum punishment for] clause (1) and (2) LIO [lesser included offenses]. On 23 October defense revised their plea and forum...offers pleas based on residual elements. [emphasis added]
...Defense emailed the Court. ...19 July 2012 Court Order...misplaced...does not address [clause] (1) and (2) residual elements.
On 18 October  the Court...suspense...for proper plea and maximum punishment. 5 November [2012 defense] filing. 16 November  response. 23 November  reply.
On 27 November 2012 to 2 December 2012 the Court will address: (1) Is the plea the proper LIO or is it an amendment? US v. Morton (2010); (2) Assuming plea is acceptable [to the] the Convening Authority what is the maximum punishment? US v. Beatty (2011)
Court has the defense filing, and the Court will address proffered pleas.
The Court's remarks today concerned an interrogatory and clarification with defense regarding lesser included offenses and maximum punishment for Clause (1) and (2) of Article 134 or Charge II, which the Judge's July 19, 2012 ruling on maximum punishment for lesser included offenses, did not touch. In that exchange, she says "[the ruling] never considered [maximum punishment for] clause (1) and (2) LIO [lesser included offenses]." The Court is trying to determine if whatever defense is proffering to plea is appropriate and what the maximum punishment for those pled elements would be.
The best way to get a grasp is to study how Specifications 2 through 16 of Article 134 are constructed.
- Clause (1) of Article 134 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces.
- Clause (2) involves conduct of a nature to bring discredit upon the armed forces.
- Finally Clause (3) offenses involve noncapital crimes or offenses which violate federal law. In this case those specifications refer to clause (3) as 18 USC 641, 793(e), and 1030(a)(1).
Specification 1 of Charge II under Article 134 is unique.The element of clause (1) is "[i]n that Private First Class Bradley E. Manning, US Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, wrongfully and wantonly cause to be published on the internet intelligence belonging to the United States government."
The element of clause (2) of that charge is "having knowledge that intelligence published on the internet is accessible to the enemy."
Finally, clause (3) specifically is "such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces." See the March 1, 2011 charge sheet.
In criminal law, a lesser included offense, refers to "a crime the elements of which coincide with the elements of a more serious crime, from which the prosecutor is therefore precluded from separately charging a criminal defendant."
According to the Criminal Law Desk Book:
...due process principle of fair notice mandates that an the accused know for what offense and under what legal theory he may be convicted. A lesser included offense meets this notice requirement if it is a subset of the greater offense alleged. See United States v. Medina, 66 M.J. 21 (CAAF 2008); United States v. Miller, 67 M.J. 385 (CAAF 2009); United States v. Jones, 68 M.J. 465 (CAAF 2010).
A special note to the rights of the accused. Pfc. Manning has not pled anything. Should he withdraw this submission to the Court or redraft it, in theory it would be as if he never mentioned anything. An accused has a right to know what crime(s) he is charged with and what punishment he can expect before pleading to anything. Further, the Court must ensure the accused understands what he is pleading to and that he understand what the maximum punishment would be.
On June 6 2012, Judge Lind ruled on defense and Government motions for instructions for Lesser Included Offenses (LIO).
Her interpretation of lesser included offenses for Article 134 turned on her interpretation of core military case law and the Manual for Court Martial:
Regarding Article 134 of UCMJ [Uniform Code of Military Justice] in the Manual for Court Martial directs that the elements of an assimilated crime for offenses not capital are the elements as defined in the applicable law MCM Part IV, paragraph 60 b.
If the conduct in question is to be punished under clause (1) [that the accused did or failed to do certain acts] or (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 UCMJ [Uniform Code of Military Justice] the elements are two fold: (1) Specific actions the accused did or fail to do, and (2) that the accused's acts or omission were prejudicial to the good order or discipline or of the nature to bring discredit upon the armed forces.
Clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] and (3) [conduct of a nature to bring discredit upon the armed forces] are alternative theories of prosecution under Article 134.
Clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] are lesser included offenses of clause (3) [conduct of a nature to bring discredit upon the armed forces], if the elements of clauses (1) and (2) are pled in the specification. United States v. Medina 66 MJ 21 (CAAF [Court of Appeals of the Armed Forces] 2008).
Regarding the instructions for lesser included offenses, Judge Lind also ruled on 6 June 2012:
The Court will instruct on attempt as an LIO if raised by the evidence for Specifications 2 through 16 of Charge II. The Court will instruct on property with value less than $1000 for Specifications 4, 6, 8, 12, and 16 of Charge II. The Court will instruct on clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 as an LIO of Specifications 13 and 14 of Charge II. The Court will not instruct on the remaining LIO's.
It should be noted that defense counsel has already sought to dismiss Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II or the 793(e) espionage charges for being unconstitutionally vague or over-broad. The Court denied the defense motion by arguing that "Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II" are not unconstitutionally vague or substantially over-broad, because "the Court will provide appropriate instructions and fully inform the fact finder of the elements of the defense and its definitions," thereby lessening the broad sweep of the Espionage Act.
Defense has also sought to dismiss 13 and 14 of Charge II related to the 1030(a)(1) charges for failure to state an offense. The Court denied the defense motion, BUT ruled that it would "adopt a narrow meaning of 'exceeds authorized access' under the CFAA and will instruct the fact finder that the term 'exceeds authorized access' is limited to violations of restrictions on access to information and not restrictions on its use. The Court shall craft instructions for defining 'exceeding authorized access' in Specifications 13 and 14 of Charge II using the language of the legislative history of 1996.
The Government has charged Manning with unauthorized access based on his use of his access, namely by means of an Acceptable Use Policy (AUP) - which he may have signed - the Government apparently cannot find it; and Non Disclosure Agreements - Manning allegedly signed seven; and not because the Government alleges that Pfc. Manning bypassed technical restrictions (i.e. "hacked").
For example, Captain Steven Lim, the Brigade S2, gave the analyst a link to Net Centric Diplomacy database via email with no password required in January 2010. Captain Lim testified, "I gave [the intelligence analysts a] link through email. Got from headquarters. They [headquarters] said pass along. Felt at time we were so focused on the ground, and needed bigger picture."
Judge Lind further ruled, if the Government doesn't pony up the evidence:
Should the Government not prove an element as alleged in the Specifications in accordance with the instructions given in accordance with the narrow view of Nosal III at the close of the evidence the Court shall entertain motions under RCM [Rules for Court Martial] 917 for findings of the evidence or for finding the evidence is not legally sufficient to sustain a guilty finding.
More will be revealed.