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Appellate Exhibit ? | US v Pfc. Manning, Court Ruling on Defense Motion to Dismiss Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II

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US v. Pfc. 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."

This ruling on the defense motion to dismiss specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II as unconstitutionally vague and over-broad was read by Judge Lind into the Court record at the June 8, 2012 Article 39(a) Session of United States v. Pfc. Manning.

[BEGIN COURT RULING ON DEFENSE MOTION TO DISMISS SPECIFICATIONS 2, 3, 5, 7, 9, 10, 11, and 15 of CHARGE II AS UNCONSTITUTIONALLY VAGUE AND OVER-BROAD]

Alright, the defense moves this Court to to dismiss Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II as unconstitutionally vague in violation of the 5th Amendment, and over-broad in violation of the 1st Amendment. Alternatively, defense moves the Court to provide limiting instructions. Government opposes dismissal. The Government joins the defense in its request to provide instructions that define 18 United States Code Section 793(e). 



After considering the pleadings, evidence presented, and argument of counsel the Court finds and concludes as follows:



FACTUAL FINDINGS



1.) In Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II Pfc. Manning is charged with unauthorized possession and disclosure of classified information in violation of Section 793(e) and Article 134 UCMJ [Uniformed Code of Military Justice].



2.) 18 United States Code (USC), Section 793(e) criminalizes "Whoever having unauthorized possession of, access to, control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it"



THE LAW



Void for vagueness.



1.) A motion to dismiss a specification as being void for vagueness implicates the due process clause of the 5th Amendment. To overcome a void for vagueness challenge a statute must be reasonably clear so as to provide warning of the type of conduct that is proscribed, and provide standard sufficiently explicit to prevent arbitrary and capricious application. A statute is impermissibly vague if it: "First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.   Second, if it authorizes or even encourages arbitrary and discriminatory enforcement." United States v. Shrader (2012) WL 1111, 654 (4th Circ.), 4 April 2012; Hill v. Colorado 530 U.S. 703, 732 (2000); United States v. Amazaki 67 M.J. 666 (A. Ct. Crim. App. 2009) 



2.) "[T]he more important aspect of vagueness doctrine is not actual notice, but the other principal element of the doctrine - the requirement that a legislature establish minimal guidelines to govern law enforcement." Courts also considered any judicial or administrative limiting instruction of a criminal statute in determining whether it is unconstitutionally vague. Kolender v. Lawson, 461 US 352, 355, 357, 358 (1983). "[?] persons for whom the statute clearly applies has no standing to challenge successfully the statute under which he was charged for vagueness." United States v. Morison 844, F.2d 1057 (4th Circ., 1988)



3.) A mens rea requirement mitigates the laws vagueness especially with respect to actual notice of the conduct prescribed. United States v. Moyer (2012) WL 639, 277 (3rd Circ., 2012); Gonzales v. Carhart, 550 US 124, 149 (2007)



THE LAW



Substantially over-broad.



1.) A statute is facially over-broad when no set of circumstances exists when it would be valid. United States v. Salerno 481 US 739, 745 1987 US. 



2.) In the 1st Amendment context, a law may be invalidated as over-broad if "a 'substantial number' of its applications are unconstitutional, '"judged in relation to the statute's plainly legitimate sweep."'" United States v. Stevens 130 Supreme Court 15, 77 (2010). 1st Amendment challenges are an exception to the general rule that an accused does not have standing to litigate the rights of third parties. United States v. Morison 844, F.2d 1057 (4th Circ., 1988)



ANALYSIS



Void for vagueness phrase, "relating to the national defense."



1.) The phrase "relating to the national defense" does not define the statute. Defense argues that the phrase is unconstitutionally vague because gives no fair warning about information that comes within its sweeping scope. 



2.) In Gorin v. United States 312 US 19 (1941) the Supreme Court rejected a similar vagueness challenge to identify the Espionage Act, the predecessor statute to the issue in this case. The Court held:



"National defense, the Government maintains, 'is a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.' We agree that the words 'national defense' in the Espionage Act carry that meaning...The language employed appears sufficiently definite to apprise the public of prohibited activities and is consonant with due process." (Gorin, 312 U.S. 19, 28)





3.) Both [?] and federal Courts have consistently found that the phrase "relating to the national defense" in 18 United States Code (USC) Section 793 is not unconstitutionally vague. See United States v. Morison 844, F.2d 1057, 1071-1074 (4th Circ., 1988); United States v. Kim 808 F. Supp. 2d 44 (DDC 2011); United States v. Rosen 445 F. Supp. 2d 602, 617 (ED Va. 2006) affirm [?] 557 F.3d 192 (4th Cir. 2011)



4.) The Court agrees with the analysis of these cases and finds that the phrase "relating to the national defense" anything [?] 793(e) is not unconstitutionally vague.



ANALYSIS



Void for vagueness the phrase "to the injury of the United States, or to the advantage of any foreign nation".



1.) 18 United States Code Section (USC) 793(e) "imposes and additional scienter requirement for transmission of information requiring the accused has reason to believe that the national defense information could be used to the injury of the United States or the advantage of any foreign nation."



2.) The Supreme Court rejected the vagueness challenge to the predecessor statute on the basis of the obvious delimiting words on the statute requiring that the [missed a few words] reason to believe that the [missed a few words] to the injury of the United States or the advantage of any foreign nation. (Gorin, 28-29) As a result the court found that "there is no uncertainty of the statute that deprives a person of the ability to predetermine whether contemplated action is criminal under the provisions of the law." (id. 28)



3.) The statute requires the accused to have acted willfully. The scienter requirement that the statute imposes when the accused is charged with transmitting information related to the national defense mitigates the laws vagueness especially with respect to actual notice of the conduct proscribed. See United States v. Regan 314 US 513, 544 (1942); United States v. Kim 808 F. Supp. 2d 44 (DDC 2011); United States v. Moyer (2012) WL 639, 277 (3rd Circ., 2012) quoting Gonzales v. Carhart 550 US 124, 149 (2007).



4.) The Court agrees with the analysis of these cases and finds the phrase "to the injury of the United States, or to the advantage of any foreign nation" in 18 Unites States Code Section 793(e) is not constitutionally vague. 



5.) For the reasons set forth above the Court finds combination of the phrases "related to the national defense" and "to the injury of the United States, or to the advantage of any foreign nation" does not render the statute unconstitutionally vague.



6.) Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II are not unconstitutionally vague. Vagueness concerns can be addressed with the appropriate instructions. United States v. Squillacote 221 F.3d 542 (4th Cir. 2000)



ANALYSIS 


Substantially over-broad in violation of the 1st Amendment.



1.) Defense argues that Section 793(e) is substantially over-broad in violation of the 1st Amendment because it regulates a substantial amount of protected speech and infringes on the freedom of the press to investigate and publish articles on the national defense topics. 



2.) A similar over-breath challenge in United States v. Morison 844, F.2d 1057 (1988). The Morison Court applied the three prong test to determine whether 18 United States Code (USC) 793(e) was over-broad in violation of the 1st Amendment. (1) when 'the governmental interest sought to be implemented is too insubstantial, or at least insufficient in relation to the inhibitory effect on first amendment freedoms'; (2) when the means...bear little relation to the asserted government interest; and (3) if the means...do relate to a substantial government interest, can that interest be achieved by a 'method less invasive of free speech interests." The 4th Circuit held that 18 United States Code (USC) 793(e) (1) expresses a vital government interest in protecting national security (2) the statute has a direct relation to the protection of the vital national security interest (3) additional instructions can narrow the scope of the statute to ensure that the statute is narrowly [?] to protect the vital national security interests.



3.) The Court agrees with the 4th Circuit that 18 United States Code (USC) Section 793(e) expresses a vital government interest of protecting the national security and that the statute has a direct relation to the protection of the vital national security interest. This Court can crafted instruction to ensure that the statute is narrowly tailored to protect the vital national security interest. Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II are not unconstitutionally over-broad in violation of the First Amendment.



CONCLUSION



Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II are not unconstitutionally vague or substantially over-broad.

The Court will provide appropriate instructions and fully inform the fact finder of the elements of the defense and its definitions.

The parties are invited to provide the Court with proposed instructions. The Court would greatly benefit from actual instructions used to define the elements and the definitions in previous 18 United States Code (USC) Section 793 cases to include United States v. Kim 808 F. Supp. 2d 44 (DDC 2011); United States v. Rosen 445 F. Supp. 2d 602, 617 (ED Va. 2006); United States v. Squillacote 221 F.3d 542 (4th Cir. 2000); United States v. Morison 844, F.2d 1057 (4th Circ., 1988); United States v. Truong Dinh Hung 629 F.2d, 908 (4th Cir. 2000); United States v. Dedeyan 584 F.2d 36 (4th Cir. 1978)



RULING



Defense motion to dismiss Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II is denied. The Court will craft draft instructions similar to those approved by the 4th Circuit in place. Parties will submit proposed instructions for consideration. Ordered this 8th day of June 2012.

[END COURT RULING ON DEFENSE MOTION TO DISMISS SPECIFICATIONS 2, 3, 5, 7, 9, 10, 11, and 15 of CHARGE II AS UNCONSTITUTIONALLY VAGUE AND OVER-BROAD]



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