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Transcript | US v Pfc. Manning, Article 39(a) Session, 07/18/12

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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."

The Military District of Washington (MDW) would not allow media and legal observers covering the July 18, 2012 Article 39(a) Session in US v Pfc. Manning to use computers during the legal proceedings. This transcript was taken by hand from the public gallery of the Court room at Fort Meade, Maryland. It, therefore, may contain omissions or errors.

  • Judge: Army Col. Denise Lind

  • Prosecution: Major Ashden Fein, Captain Joe Morrow, Captain Angel Overgaard, Captain Hunter Whyte

  • Defense: Mr. David Coombs, Captain Joshua Tooman, Major Thomas Hurley

ALL RISE

Judge Lind

Please be seated. This article 39(a) Session has been called to order...

Prosecution (Fein)

...Captain Overgaard is absent. Captain Hunter Whyte is present...

Judge Lind

...Court ruling on Government's motion to pre-admit evidence...[Court Ruling] on Defense Renewed Motion to Dismiss Specification 13 and 14 of Charge II...both sides submitted [target briefs on harm]...Government motion to preclude damage on the merits... [Maximum Punishment for] Lesser Included Offenses...prior to damage...RCM 802...

Anyone want to add anything?

Defense (Coombs)

Appellate exhibits 213 and 241 are additional filings. I will discuss before LIO [Lesser Included Offenses].

Judge Lind

When Judge Lind reads her rulings she reads them very quickly, and it was difficult me to catch many details.

Court ruling on Government's Motion to Pre-admit Evidence. Appellate exhibit 160

The numbers below may refer to enclosure cumbers or exhibit numbers. The enclosures from appellate exhibit 160 were transferred to exhibit numbers, but the enclosure number does not necessarily correspond to the respective exhibit number. See the 17 July 2012 transcript, last argument at the end of day for more information on this ruling.

  • No. 1 Information Awareness Training [I noted "ATA" [but is could be "ATTR"] Willco Tech]
  • No. 2 Information Assurance Screenshot, [AECOM? Consulting or NETCOM?]
  • No. 3 Joint Asset Movement Records, USARCENT, Kuwait.
  • CIA Wire Logs
  • CENTAUR Logs
  • [Missed one other.]

Prosecution argued that they were business records and machine generated.

Defense [missed].

1.) ....maintained, prior to [pre-existing]...6th Amendment...

2.) Testimony...use at a later trial...machine generated statements are not testimony... The fact that snapshot does not transform data into testimony.

3.) If Government show relevance, [then] they will be made as evidence.

Court ruling is appellate exhibit 216.

New filings. Which side will start?

Defense (Coombs)

Defense will start. Appellate exhibit 231 is additional research motion based on Court's question regarding 18 USC 641, [vis.] evaluation to prove a thieves market to prove valuation. [See the 17 July 2012 transcript, oral arguments for instructions for 18 USC 641 for more information.]

Government would have to establish their is a market, and then the value. Key cases [DiGilio 538 F.2d 972 (3d Cir. 1976)?] cited by the Government. [Coombs said cases, but I did not record or missed others. Government also cited on 17 July 2012 US v Morison and US v Oberhardt] that will be the requirement. Second that it has value.

Government requested instruction. Does not accidentally state law. Appellate exhibit 214 with regards to conversion [for] 18 USC 641 ...of [substantial?] interference, Collins case clearly indicates conversion implies substantial interference.

Judge Lind

Thank you. The Court will take appellate exhibits 213 and 214 under advisement.

Defense (Coombs)

Pin cites also for 18 USC 793 that were at issue...Government said that defense misunderstood. [See the 17 July 2012 transcript, oral arguments for instructions for 18 USC 793(e)].

Judge Lind

Government, if you have pin cites, the Court would appreciate.

Prosecution (Morrow)

We did. It was starting with 'however' [language]...we will look again.

Judge Lind

Thank you.

Defense (Coombs)

LIO [Lesser Included Offenses] maximum punishment. United States v. Ramsey, 40 MJ 71 argument we will reference. Appellate 215 is defense's additional submissions. During our argument, Court asked [about] 'contract violation' to support 18 USC 1030. Defense conceded that when you are looking at cases...find out what happened at trial...found filing from Drew case.

Defense position [US District] Judge George Wu [overturned] for failing to state an offense...took under advisement. When you go to earmark cite, the Government theory under intent...'motion for a judgment of acquittal.'

...intentionally violating the Terms of Service is a violation of [18 USC] 1030. So they say that violating the Terms of Service [TOS] in further of tort of emotional distress. So cyber [bullying?] another [identifier?].

Go to the next earmark ...Government ...at close of case a RCM 917 motion equivalent. November 23 and 26. Tried to dismiss in advance...to see what panel might do. Defense did an equivalent of an RCM 917 motion, go to introduction, marked as number two.

371, count one...count two 'emotional distress' ["by using interstate communication to obtain information from the computer in order to inflict emotional distress" 18 USC 1030(a)(2)(C)] ...using misdemeanor 18 USC 1030 to support federal offense and where you combine, it would be a felony.

Number three is earmarked. Defense motion to dismiss line eight "in light of jury...' Broad theory, theory breach of contractual...is a crime... Whether or not a violation of [18 USC] 1030.

Judge Lind

...misdemeanor?

Defense (Coombs)

So, when Judge Wu took under advisement...that is why...the rule is scienter requirement in furtherance could support felony of [18 USC] 1030. I think looking at it...misdemeanor.

Timeline proper purpose, example of theory no. 2. Supported for purpose and contractual.

For 29 [not clear from notes]... ...many of the civil cases were not considering criminal cases. Line of demarcation from 2008 and before...then line in the sand...we cannot allow civilian employers to dictate criminal...not your purpose...whether you exceeded...then that is Nosal. Once here, only a misdemeanor not time to confront if stated offense.

Judge Wu ruled not for vagueness. Judge Wu persuaded...no requirement for civilian employer. [Professor Orin] Kerr said if...nothing could restrict them...so when you look at it...[18 USC] 1030 cannot be dictated by contractual...took six months to consider in 9th Circuit...start to see cases pile up that it doesn't./

Judge Lind

Government?

Prosecution (Morrow)

Yes. Court aware US v. Rauscher, not marked as an appellate exhibit.

Judge Lind

On lesser included offenses on clause (2)?

Prosecution (Morrow)

If still Specification... If the... ...US v. Rauscher, Specification was defective...did not [ally?] terminal element. [Captain Morrow explains the case.]

Government maintains under Specification 13 and 14 [of Charge II, related to 18 USC 1030(a)(1) offenses]...if you rule under [18 USC] 1030...there is still an act to good order and discipline.

Judge Lind

Captain Morrow, ...how shall I instruct on definition?

Prosecution (Morrow)

You could strike.

Judge Lind

Exceeds authorized access could be stricken?

Prosecution (Morrow)

Hope you don't go that way. In regards to Drew, Courts have dealt with theory 1 and 2 the same way [See July 17,2012 transcript for "theory 1 and 2"]. Doesn't change that at all...still maintain in any event, Drew is not applicable. ...violation of contractual obligation, however, that [?] statute. Government...whether or not [18 USC] 1030...Wget has nothing to do with Acceptable Use Policy [AUP]. ...varied interpretations of statutes.

Judge Lind

Mr. Coombs?

Defense (Coombs)

With regards to Rauscher...that is no [?] Article 134 offense all elements of Article 128. Terminal element was an Article 134 offense. On notice...even...during merits for Article 128 offenses. Rauscher is different. Court strikes [18 USC] 1030.

Judge Lind

What about 1030 and LIO [Lesser Included Offenses]?

Defense (Coombs)

Eliminate [18 USC] 1030...[say instead] 'obtained and gave cables'... Then you would state a Article 134 offense... So, Wget. Yes. Would concede that would be possible Article 134 offense.

Judge Lind

If I take clause out...concern not with [18 USC] 1030(a)(1), concern is portion without scienter requirement...straight clause (1) and (2).

Defense (Coombs)

For definition of 'exceeds authorized access'?

Judge Lind

Broad.

Defense (Coombs)

If you followed that line you could support a [18 USC] 1030. Provision not because of requirements, has to equally...in Nosal...[18 USC] 1030(a)(1)... Let's not worry about other provisions. In statute must be consistent. If Congress wanted they could clearly indicate otherwise.

Judge Lind

Clause (3) theory...remaining portion of...?

Defense (Coombs)

As long as you...[?]...like adding Wget, just eliminate unauthorized access. Defense would have to concede that would be an Article 134 offense.

Judge Lind

Specification 13 and 14 of Charge II?

Prosecution (Morrow)

What appellate exhibit?

Judge Lind

Appellate exhibit 217, email on Rauscher.

Now [let's] discuss Specification 1 of Charge II.

[Missed.]

The Court ruled...should be more clear...charged offenses of clause (1) and (2) as alternated theory...subsets of category...panel can accept clause (1) or (2)..for 18 USC 1030. We won't know until trial...[example?] lesser mens rea. [Missed.]

[Court Ruling on Government and Defense Motions for Instructions for Lesser Included Offenses (LIO) on 8 June 2012. See Court Ruling, "Specifications 13 and 14 of Charge II 18 United States Code (USC) Section 1030(a)(1) clause (1) and (2) of Article 134 UCMJ [Uniform Code of Military Justice], the parties agree that this is LIO." See also oral arguments for Government and Defense Motions for Instructions for Lesser Included Offenses (LIO) took place on 7 June 2012.]

Defense (Coombs)

...[18 USC] 1030 and ["791" but am not sure if that is correct, since Manning is charged with 793(e)].

Judge Lind

...by exceptions...my ruling may not have. I ruled no subsets of 641 and 793(e).

Defense (Coombs)

Only if they find by exceptions?

Judge Lind

...hard part of LIO for [18 USC] 1030.

Defense (Coombs)

Correct. LIO's for [18 USC] 1030 only exist...scratching out language from statute. There was one subset to [18 USC] 641, [i.e.] lesser than $1000.

Court Ruling on Government and Defense Motions for Instructions for Lesser Included Offenses (LIO) on 8 June 2012. See "The Court will instruct on property with value less than $1000 for Specifications 4, 6, 8, 12, and 16 of Charge II" which are 18 USC 641 offenses.]

Judge Lind

I think everyone agrees, maximum would be same [as?] offense.

Start with Specification 1 of Charge II.

[Specification 1 of Charge II is "In that Private First Class Bradley E. Manning, U.S. 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, having knowledge that intelligence published on the internet is accessible to the enemy, 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."]

Prosecution (Morrow)

Government requests the Court find maximum punishment for Specification 1 of Charge II:

  • Dishonorable discharge.
  • Forfeit all pay; and
  • demoted to provate E1

Judge Lind

Rational?

Prosecution (Morrow)

[Explains rational. Missed.]

Judge Lind

Do we have that in a case?

Prosecution (Morrow)

No. Closely related... Government position RCM 1003, turn to federal law. 18 USC 793 is an analogous statute...

Judge Lind

If definition is directly analogous...?

Prosecution (Morrow)

Courts look at [?]. Same misconduct. Same mens rea...for Specification 1 of Charge II.

Judge Lind

...793 'wanton' and 'willfulness'...? 793 maximum punishment?

Prosecution (Morrow)

10 years.

Judge Lind

...remaining elements of 793(f)?

Prosecution (Morrow)

Appellate exhibit 193 is the Government proposed instructions for 793(e), page 2. [Reads 793(f)] 'possession relating to national defense' (1) 'possession' (2) [Missed] (3) 'gross negligence'

Judge Lind

Government relies on [?] heavily, has Government [considered] US v. Beaty...?

Prosecution (Morrow)

Yes.

Judge Lind

How do you read it?

Prosecution (Morrow)

...possession of child pornography. So... [missed].

Judge Lind

As charged, Specification 1 of Charge II, can it be charged under federal statute?

Prosecution (Morrow)

The way it is written...prosecution...not punishable. As conduct underline includes men rea is punishable under [18 USC] 793...also [18 USC] 793(f)...also be [18 USC] 793(d).

Judge Lind

"In that Private First Class Bradley E. Manning, U.S. 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..." How under [18 USC] 793(d) and (f)?

Prosecution (Morrow)

Could be [18 USC 793](e) as well. Mens rea 'wanton for [18 USC 793](d) or [18 USC 793](f) is subsumed.

Judge Lind

What about actus rea?

Prosecution (Morrow)

Same as disclosing. Only distinction is intelligence and national defense information. [As a rule?] intelligence encompasses a lot.

Judge Lind

What about (e) on [18 USC] 793?

Prosecution (Morrow)

Government [believes?] 'reason to believe could cause damage' is acting 'wantonly'...could cause damage.

Judge Lind

Okay. So, not an element?

Prosecution (Morrow)

Government [believes?] obviously not a statute but 'wanton' mens rea...not actually in actual statute.

Judge Lind

[Reads from statute.]

Prosecution (Morrow)

In Beaty the information possessed not punished...maximum punishment. Specification punished what 'appeared' to be child pornography, but statute did not.

Judge Lind

I am reading Beaty [I did not not the entire quote, I believe it was "Because Appellant's offense is (1) not listed in the MCM, (2) not included in or closely related to any other..."] Is there a custom of service in this case?

Prosecution (Morrow)

If you honor is not inclined to find under [18 USC] 793...under...

Judge Lind

...the offense not analogous, no element of general custom of service would provide maximum punishment.

Look at [missed]...RCM 1003(c)...[US v Levins?]

Prosecution (Morrow)

Correct. No punitive article...the Government presumably...the 'evil' underlined in Specification in other federal [statute?].

Judge Lind

That is correct.

Prosecution (Morrow)

The Court could not look to similar 'evil' in federal statute...'causing intelligence to be published on the Internet.'

Judge Lind

In light of...? [Missed.]

Prosecution (Morrow)

Subject to your questions.

Judge Lind

I think I just asked them.

Defense (Coombs)

Court concession that 'customs of service' Article 92 [Failure to obey order or regulation], [Army Regulation] 380-5...has other requirements and regulations...duty.

Look at RCM 1003...look to Part IV. See if there are others closely related. There are one of two possibile outcomes...RCM 1003...Ramsey case [40 MJ 71 (CMA 1994)?]...judge should just make up maximum punishment...logic made sense.

RCM 1003 clear mandate. First, look at Part IV. Closely related offenses...then one with least maximum punishment. 'Customs of service'...this is [Army Regulation] 380-5. We would say why [Army Regulation] 380-5 is closely related offense.

Judge Lind

Two prongs: 'closely related' then 'customs of service'.

Defense (Coombs)

Look at closely related. Go with least maximum. Same RCM 1003(?)(2). Look outside to code or 'custom of service'. 793 is not appropriate...you have a 'custom of service'. Look to Article 134 4-112, various customs of service for Article 92 [Failure to obey order or regulation], [Army Regulation] 380-5 is 'custom' regarding intelligence.

(1) Article 92 [Failure to obey order or regulation], [Army Regulation] 380-5. If Court believed because of additional requirement...then look to 'codes and customs of service'. Court should follow [Levins?]. The Court should follow, 2 years maximum. 10 years maximum the Government is asking, then go to 2 years maximum. Reject the Government's request, if in fact [18 USC] 793 will apply to Specification 1 of charge II.

Judge Lind

What other information...covers every [?] by 793, if I took Specification 1 of Charge II?

Defense (Coombs)

Rule 29 [Motion for Judgement of Acquittal?] and [?] would grant motion...and we know this is a made up offense. Not all wrongs can be addressed by UCMJ [Uniform Code of Military Justice], Article 134 is for that. But, when you do that in mens or actus rea...So, [18 USC] 793 would not... ...find this to be a sufficient indictment.

Judge Lind

Courts...[missed] to similarities?

Defense (Coombs)

Similarities...[to] give more detail the idea is stating other offenses..look at that too. RCM 1003 lays straight forward process...basis consistent with RCM 1003. Ramsey trying to do same thing for offense. He believed that 'lesser' needed to mean 'lesser'. CMA [Court of Military Appeals] said they understood, but that deviated from RCM 1003. Here I would say this offense is a [Army Regulation] 380-5 violation...'causing to be published on the Internet'...[is a] creation of the Government. So, if that is a problem...Army Regulation 380-5, 'custom of service', 2 year maximum.

Judge Lind

...just talking...taking under advisement.

When Captain Morrow gives an oral argument he whispers. So, I did my best to transcribe him.

Prosecution (Morrow)

Government wants...under 'closely related' does not mean to the effect 'punish'. ...compromise.

Judge Lind

What other...?

Prosecution (Morrow)

Article 92 is closely related, and is a subset of intelligence. Just because a subset doesn't mean that it is a subset...that it...[missed].

Judge Lind

...[18 USC] 793. This conduct not punishable. [18 USC] 793(e) and Article 92...now you are telling...not the case.

Prosecution (Morrow)

Government argument...[regarding] closely related... [Missed.]

Judge Lind

Specification 1 of Charge II, profferer 18 USC 793 (a), (e), or (f)...?

Prosecution (Morrow)

...having a ten year maximum...specification and conduct [relates to] intelligence...knowingly accessible to enemy...[Government request] not egregious.

Judge Lind

Do on equitable [missed]...?

Prosecution (Morrow)

...trying to apply test, the law is giving me.

Judge Lind

Beaty is controlling if offense...you can consider other federal statutes...does.

Prosecution (Morrow)

[argues Levins]

Judge Lind

[reads footnote no. 7] ...comfortably rely on [Levins?] ?

Prosecution (Morrow)

Yes. Under third [?]...both closely [related offense under Uniform Code of Military Justice?]...but still 'disclosure' is the same 'evil'.

Judge Lind

Closely related goes to offense in Manual [for Court Martial]?

Prosecution (Morrow)

[I noted 'ditto', which means either Morrow said 'ditto' or repeated the Judge's question as a statement, 'closely related goes to offense in Manual.'

Judge Lind

...reads into the different standard...with respect...at odds with text of RCM 1003 and Levins.

Prosecution (Morrow)

We are not saying not 'closely related'... the 'evil' is not accounting for mens rea. Court could considermens rea...

Judge Lind

...but see [missed]?

Prosecution (Morrow)

I mean in contrast.

Judge Lind

So, if I read Beaty look for maximum...? [Missed.] ...if I read Beaty, once you go beyond...to require charge conduct [do you] have every element?

Prosecution (Morrow)

[Missed, but mentions Levins]

Missed one or two statements, because Captain Morrow was whispering.

[COURT IN RECESS FOR LUNCH]

ALL RISE

Judge Lind

Please be seated. This article 39(a) Session has been called to order...

...had a brief RCM 802...[concerning] LIO [Lesser Included Offenses] litigation for Specification 1 of Charge II. ...three theories of offenses... ...USC [United States Code] and Article 134...accept out clause (3)...straight clause (1) and (2).

[

We know from the verbatim ruling I took on 8 June 2012 that the Court ruled "Specification 1 of Charge II clauses (1) and (2) of Charge II Article 134 UCMJ [Uniform Code of Military Justice]. Similarly an Article 92 offense is not a lesser included offense of the Article 134 offenses described in Specification 1 of Charge II. The actions alleged in Specifications 1 of Charge II would not be included in a failure to obey a lawful general regulation, and that prescription defines the scope of the elements for that offense. MCM [Manual for Court Martial] Part IV, paragraph 60 b.

While the actions alleged wrongfully and wantonly publishing Government intelligence on the Internet could result in a violation of a lawful general regulation, they do not necessarily include such a violation. A violation of a lawful general regulation alone would not necessarily constitute an offense as described in Specification 1 of Charge II. See Jones 68 MJ 471; [?] Bonner 70 MJ 3 defining assault consummated by a battery as a lesser included offense of [?] sexual contact because both offenses required offensive contact.

The second element of the proposed LIO, Article 92 (1) the accused had a duty to obey a lawful general regulation is not a lesser included element of clauses (1) and (2) of Article 134. Prejudice to the good order and discipline and service discrediting conduct is not required if the accused had a duty to obey a lawful general regulation. Based on the elements as charged it is not impossible to prove a clause (1) and (2) violation of Article 134 without also proving a violation of a lawful general order. Defense request for a lesser included offense instruction for Specification 1 of Charge II is denied."]

Other issues? Parties have until 16 hundred hours, and then recess.

Prosecution (Fein)

No, your Honor.

Defense (Coombs)

No, your Honor.

Judge Lind

Government do your want to argue remaining lesser included offenses maximum punishment? Start with Specifications concerning 18 USC 641 and Article 134 [Charge II]

Prosecution (Morrow)

Clause (1) and (2) of punitive article, theft of intangible property...

Defense (Coombs)

...close to larceny?

Prosecution (Morrow)

No. CAAF [Court of Appelas for the Armed Forces] and US v. Leonard. If the act not punishable under punitive Article, not closely related.

Judge Lind

Show me the language in US v. Leonard. [Missed.] Look at page 4 of 6. Westlaw, bottom: "We observe that the 'closely related' language in RC 1003(c)(1)(B)(ii) refers to offenses that are closely related to offenses listed in the MCM..."

Prosecution (Morrow)

I misspoke. You are correct.

Judge Lind

Look at larceny. Closely related?

Prosecution (Morrow)

No. Information. Stealing...is not subject to Article 121 [Larceny and wrongful appropriation] for intangible property.

Judge Lind

What does closely relate?

Prosecution (Morrow)

Government could not find, meaning...[so they went] under federal, same mens rea and actus rea. We argue not punishable, not closely related to [Article 121 [Larceny and wrongful appropriation]. If stolen not punishable under [Article 121 [Larceny and wrongful appropriation] not closely related.

Case law...intangible property not applicable to [Article 121 Larceny and wrongful appropriation]. Maximum punishment for [18 USC] 641 should be applicable.

Judge Lind

Only issue with your argument is that is 'step 2'...here, RCM 1003(c)(1)(B)(i) described an offense can be 'equally closely related' looking more broadly.

[That reads in the Manual for Court Martials RCM 1003(c)(1)(B)(i) "...(B) Offenses not listed Part IV. (i) Included or related offenses. For an offense not listed in Part IV of this Manual which is included in or closely related to an offense listed therein the maximum punishment shall be that of the offense listed; however if an offense not listed is included in a listed offense, and is closely related to another or is equally closely related to two or more listed offenses, the maximum punishment shall be the same as the least severe of the listed offenses."]

Prosecution (Morrow)

Yes, M'am. For larceny...when information...subject to converted...when information is intangible.

Judge Lind

I understand he cannot be charged, but why not closely related? Seems like (i)(2) under that section. You don't get to federal code unless not 'closely related' to offense in Manual...in Leonard child pornography not found.

Prosecution (Morrow)

Article 121 and [18 USC] 641 more applicable on position [it was] stolen. Completely falls outside and the case law supporting that. If there is men reas...'closely related'. But when information is not within Article 121, Government argues, we do not [believe]. [It is] not related.

Judge Lind

Any case law to support that?

Prosecution (Morrow)

No.

Judge Lind

Any case law where sentencing judge...?

Prosecution (Morrow)

No.

Judge Lind

I believe their is case law in this area is on appeal. [laughs] If I find Article 121 for [18 USC] 641...are CIDNE database, [etc.] military property?

Prosecution (Morrow)

Yes.

Judge Lind

Specification 6 of Charge II?

Prosecution (Morrow)

Yes.

Judge Lind

Specification 8? SOUTHCOM database?

Prosecution (Morrow)

Yes.

Judge Lind

Specification 12? NetCentric database?

Prosecution (Morrow)

Not military property.

Judge Lind

Specification 16? [United States Forces - Iraq Microsoft Outlook / Share Point Exchange Server global address list] ?

Prosecution (Morrow)

Yes, M'am. [It is] military property.

Judge Lind

Assuming that I do not find 'closely related'?

Prosecution (Morrow)

Maximum should be [18 USC] 641 analogous, conduct and mens rea are the same.

Judge Lind

Same for [18 USC] 793(e) and [18 USC] 1030(a)(1)?

Prosecution (Morrow)

We would argue [same as 18 USC 793], 10 years.

Judge Lind

[18 USC] 1030? Closely related in Articles?

Prosecution (Morrow)

No.

Judge Lind

Federal analogous?

Prosecution (Morrow)

18 USC 1030.

You asked both parties, what is most... Specification 1 of Charge II prosecute...what would they prosecute...only applies if you rule is not in RCM or Article and look to USC. And, if Court consider Court of Military Appeals, there are a couple of federal cases that proscribe 'evil' as Specification 1 of Charge II. ...statutes that use 'evil'.

Judge Lind

Statutes would be?

Prosecution (Morrow)

Most analogous...these statutes are not Specification 1 of Charge II, but in determining maximum punishment. Most analogous 50 USC 783.

Judge Lind

Which section?

Prosecution (Morrow)

Section (a)

[That reads "(a) Communication of classified information by Government officer or employee

It shall be unlawful for any officer or employee of the United States or of any department or agency thereof, or of any corporation the stock of which is owned in whole or in major part by the United States or any department or agency thereof, to communicate in any manner or by any means, to any other person whom such officer or employee knows or has reason to believe to be an agent or representative of any foreign government, any information of a kind which shall have been classified by the President (or by the head of any such department, agency, or corporation with the approval of the President) as affecting the security of the United States, knowing or having reason to know that such information has been so classified, unless such officer or employee shall have been specifically authorized by the President, or by the head of the department, agency, or corporation by which this officer or employee is employed, to make such disclosure of such information."]

The elements. Employee of the US did communicate...[in any manner or by any means, to any other person whom such officer or employee knows or has reason to believe to be an agent or representative of any] foreign government, that info is classified, has been so classified.

Judge Lind

...publishing on the Internet? You have 'wanton'. This statute is 'knowing', and not 'wanton'. How are they the same act?

Prosecution (Morrow)

Element of Specification 1 of Charge II, 'knowledge' that is accessible to enemy, not direct...captured within recipient of foreign government...does prescribe the same 'willfulness' and 'wanton'.

Judge Lind

Difference from publishing on the Internet. Is the Government contention that giving information to a person who is an agent of foreign government and publishing on the Internet accessible to enemy, the same thing. [Or "Is there difference b/w publishing on Internet accessible to enemy & giving classified info to foreign agent?"] is accessible to the enemy?

Prosecution (Morrow)

We would argue that it is. We want to reference that. Just to highlight seriousness. Other statutes:

  • 18 USC 798 [Disclosure of classified information]
  • 18 USC 794(b) [ Gathering or delivering defense information to aid foreign government]
  • 18 USC 1831 [Economic espionage]
  • 18 USC 1832 [Theft of trade secrets]
  • 18 USC 1924 [Unauthorized removal and retention of classified documents or material]
  • 18 USC 2071 [Concealment, removal, or mutilation generally]
  • 18 USC 2232 [Destruction or removal of property to prevent seizure]

Judge Lind

Will take these under advisement. [Missed.]

Defense (Coombs)

...struck out clause (3), [not exactly clear from my notes, presumably Coombs said leaving] (1) and (2)...military property and value.

Judge Lind

Are you aware of case where finder of fact has fractured at clause (3) and found Article...?

Defense (Coombs)

RCM 1003 Ramsey only new case dealing...

Judge Lind

Blazing new paths?

Defense (Coombs)

Yes, your Honor. If you charge under Article 121, then clearly Article 134 says not larceny type offense, so closely related to that offense, Article 121 is the offense if they chose to strike clause (3). In fact, if they strike clause (3), we would say Article 121 is the offense.

[18 USC] 793 and [18 USC] 1030 track closely. AR [Army Regulation] 380-5, if not closely related or custom of service.

Judge Lind

Why custom of service?

Defense (Coombs)

Look at drafters intent. You chose one with lower maximum punishments, that that same type of belief shouldn't also apply...because the drafters don't envision all possible scenarios. There is an offense, we haven't laid out maximum punishment.

Parker v. Levy [417 U.S. 733 (1974)] to err on side of benefit of accused. I have two options, between a code or custom of service. I think that tips to AR [Army Regulation] 380-5.

Judge Lind

Additional statutes by governing opinion?

Defense (Coombs)

Parties have to adjust arguments...grasped offenses at the eleventh hour. Different mens rea...publishing on Internet, then enemy. I think the actus rea is completely different.

...not related to mens rea...in that [?]...would need to provision...to the custom of service...is the area the Court should go.

Prosecution (Morrow)

[Government interrupts to correct an error in their previous argument.] Government just...argument...punitive...[said] Leonard. It was Tenney [60 M.J. 838] case actually...case included in the maximum.

Judge Lind

Can you repeat?

Prosecution (Morrow)

Leonard case...[should be] Tenney [60 M.J. 838] case. If not punishable, then it is not related.

Defense (Coombs)

Defense will look at case and [missed].

Court Ruling on Defense Renewed Motion to Dismiss Specifications 13 and 14 of Charge II for Failure to State Offense. Judge Lind reads her rulings very quickly, and so I did my best to transcribe as much as possible by hand.

Judge Lind

...

On 8 June ...exceeded authorized access...

1.) The military [?]. The charge in the specification is sufficient if it (1) contains the element of the offense charged will fairly inform the accused of the charge against which he must defend.

2.) Enables the accused to plead an acquittal or conviction in a bar of future prosecution for the same offense. "In reviewing the adequacy of the specification, the analysis is limited to the language as it appears in the specification, which must expressly allege the elements of the offense, or do so by necessary implication." United States v. King,71 MJ 50, Footnote 2 (CAAF [Court of Appeals of the Armed Forces] 2012) quoting United States v. Fosler 70 MJ 225, 229 CAAF [Court of Appeals of the Armed Forces], 2011; United States v. Fleig, 16 CMA [Court of Military Appeals] 444-445 (1966) looking within the confines of the specification.

The motion to dismiss for failure to state and offense is the challenge to the adequacy of the specification in [?] the specification alleges either expressly or by implication every element of the offense so as to give the accused notice and protection against double jeopardy. United States v. Amazaki 67 MJ 666, 669-670 (ACCA [Army Court of Criminal Appeals] 2009) quoting United States v. Crafter 64 MJ 209, 211 CAAF [Court of Appeals for the Armed Forces], 2006.

...

2.) ...power to dismiss RCM 907(b)(1)

3.) CFAA [Computer Fraud and Abuse Act]...[ruling on 8 June 2012]

...

...language of Specification 13 and 14 [of Charge II] 'fairly inform'...US v. King [at 51?]. Specification 13 and 14, alleged unauthorized access...under classified information, not limited to code based violation. ...manner and use not mutually [exclusive?]...after formal presentation of evidence...

3.) ...1996 [legislative history] also evidence not limited to code breaking as amended...breaks into with authorization or insider...it is the use not...Senate Report 104 [Page six of 104-357? See oral arguments on 16 July 2012]...

4.) ...US v Drew upheld felony...(c)(2)(b)(2) on vagueness challenge...scienter element to be in furtherance overcame constitutional challenge...Drew held misdemeanor conviction...US v. Rodriguez 638...

5.) ...18 June 2012 found language...applied rule of lenity...[ruled would use] narrow interpretation on access not use.

Denied. I will instruct according to 8 June 2012 [ruling?].

Prosecution (Fein)

...targeted portion of whether actual harm or damage [should be allowed] on merits. Acts done after to prove prior too...

Judge Lind

Appellate exhibit 158 is the prosecution's target brief on harm. Appellate exhibit 164 is the defenses targeted brief on harm.

Prosecution (Fein)

Actual harm or damage not an actual element. If it was an element, the Government would have to prove it. That is not an element.

Judge Lind

I agree that actual damage not about elements.

Prosecution (Fein)

Defense is proffering to test the decision making to test, he had 'reason to believe...' To test the damage is after the fact...and any damage occurs afterwards...they should be able to...Diaz and [Steele?] address this...

...were not classified...accused acted openly. But, not using information that did not exist, except for action of the accused. So, that is why it is not relevant on the merits. Just read from statement of fact...instruction from BenchBook" 'if the accused was ignorant...' Burden on prosecution to prove...for mistake of fact...time of offense and active.

Judge Lind

Let's go through offenses. Specification of Charge I.

Prosecution (Fein)

...for either one same issue.

Judge Lind

But there is not a 'reasonableness' prong?

Prosecution (Fein)

Still measures under both instructions at time of offense.

Judge Lind

Just want to understand Government's position on statement of fact.

Prosecution (Fein)

[Regarding Charge II?] ...lack of harm inform accused...then bolster that his knowledge was 'reasonable'...so defense should be precluded [from introducing harm on the merits?]. So, should the Government.

Impeaching witness. They should impeach, but based off of scope.

Government doesn't need [information?] to be classified...but for information that is classified, what is the information...then will offer same or different to explain how the information is held. All of that testimony should be impeached...if they are using opinion about harm...if it 'could' cause harm it is confidential and SECRET...so again would be able to cross examine, just not as to whether damage to national security did occur.

Judge Lind

Defense proffers reason for admission for following: '(1) Injury of the US or advantage of any foreign nation' ?

Prosecution (Morrow)

What is our position? Not relevant. Impossible for accused to know if...accused to know if... [Missed.] These charges are not meant to [?]

All Specifications are either to hold accused accountable of theft and disclosure under those crimes and are complete at offense or transmission. If the Court adopts defense [argument]...the offense hasn't occurred until the damage is known.

..up until they got...

Specification of Charge I, Article 104.

Judge Lind

I think actual damage is whether the information 'could be used'.

Prosecution (Fein)

So, it goes back to someone's testimony. Does not prohibit as to which it could not cause harm...tomorrow these 'could' cause harm...if someone 'could' [?] didn't happen, entire federal structure and laws to non-disclosure compromise authority it 'could' cause harm.

Judge Lind

More onto cross-examination of OCA [Original Classification Authorities]. What is the position, OCA classified this, 'I thought it could cause damage'...challenge wisdom?

Prosecution (Fein)

OCA portion talks about what information went into decision making...they can be cross examined on general...Vice Admiral...defense could impeach...base of their training...so they have that... Defense make assumptions...is that they have anything to do with damage assessments or any evidence of damage or lack thereof...whether was properly classified and national defense information.

The burden is to prove the one element...is that the Executive Order...is that it 'could cause' harm.

Diaz great example to pinpoint. Diaz at page 133 held classified does satisfy mens rea. Classification alone determines if it is national defense information. That goes to his background, training... ACCA [Army Court of Criminal Appeals] did same as [Steele?]. All other evidence and classified...the 'knowledge' and closely held. Not strict liability of classified by OCA, but not 'actual damage'.

Judge Lind

Original motion argument, reference relating to actual harm or damage, why?

Prosecution (Fein)

Whole idea...operating on same guidance of law...asking if relevant for merits would...no not in addition to...

Judge Lind

Merits portion of trial and pretrial motions relating to merits...is Government motion going beyond the actual mention of actual damage? Ancillary part preclude that type of information.

Prosecution (Fein)

We never used the term damage assessment, we meant damage to national security. Many damage assessments explain data wither classified or un-classified.

Judge Lind

So, within the information...OCA or damage?

Prosecution (Fein)

We never used term damage assessment, meant damage to national security. If defense wants to use...in no case have we precluded damage assessments itself, but damage to national security.

Judge Lind

I am confused.

Prosecution (Fein)

Initials might have been used in reports that were compromised. That might be a compromise of national security, but not damage to national security. [Missed.] If they want to cross-examine, but not on damage to national security.

Judge Lind

Evidence of damage to 'wantonly'...? ...State Department...people left [I believe she was giving a hypothetical example of the WikiLeaks Persons at Risk Group].

Prosecution (Fein)

No one could have known until after damage occurred. Whether 'informed decision' is immaterial.

Defense (Coombs)

Had given argument, but I want to reiterate, both parties...what 'did' occur could be relevant to what ['could have' occurred?]...

As far as defense is concerned, don't understand...Government doesn't cite case. They also...they also are very confusing on the requested...don't understand position.

Judge Lind

State of mind of accused...irrelevant after [event]?

Defense (Coombs)

It is relevant...if accused 'believed' information 'could not cause' damage...if general intent.

Judge Lind

Are they general intent?

Defense (Coombs)

It might not be relevant to 'reasonable', but honestly part of other aspect of the statute requires that it 'could cause' damage if Court could go back to Diaz.

[Coombs reads part that the Government cited.]

...[need to read] footnote no. 4 too. "What injury might ensue and why was the subject of more than forty pages of classified testimony from Paul Rester, a civilian employee of the Defense Intelligence Agency who, at the time of trial, was Director of the Joint Intelligence Group, Joint Task Force GTMO, and had previously served as the Supervisory Intelligence Officer for Interrogation from April to August 2002. We have reviewed this testimony with care. The Government's conclusion that public release of the information in question may have been harmful to the United States is credible. We note as well that Appellant has not challenged before this Court the military judge's application of Military Rule of Evidence (MRE) 505 to this information nor his decision to seal this portion of the record."

Judge Lind

Says what injury 'might ensue'?

Defense (Coombs)

Yes. Well, we'll see this in Department of State...they would like to say snapshot...and five years here is the damage, but they have to offer some proof. They used training...what the Government's own statement as to whether or not it 'could' cause damage.

Judge Lind

But we are talking after the fact...how relevant...[after date of disclosure]?

Defense (Coombs)

Goes to the accused 'having reason to believe.' 'I chose what information would not cause damage' is relevant to reasonableness of that belief. And, to whether charged offenses 'could cause' damage. Hudson [2000 WL 228777 (N-M Ct. Crim. App. 2000)] case...risk versus magnitude of harm...

The Court took a look at whether victim had injuries. So, they used what did to educate on what...

[Missed.]

In Joseph [33 MJ 960 N-MCMR (1991)], when they look at what 'could'...determination of panel members to see if it could...same in this instance. Government is making...if the information did not cause harm, relevant fact to it 'could cause' damage. Even though Government...Diaz...you have to offer to cause damage and relevant fact did not call damage.

Judge Lind

Case in chief?

Defense (Coombs)

The reason they don't want information in merits, it is speculative at best. The Government has listed 100 people [as witnesses]. 12 people from Department of State; 2 OCAs; FBI; and multiple agencies of charged information. They are going to get up and, 'Let me describe the information. Let me tell you why [it is] are closely held and why it is classified.' Their classified person is going to get up there and say, 'This could cause damage.' This goes back to this is relevant impeachment. That is your statement as a Government witness.

Judge Lind

Well, that is not a statement of witness Government [?] ?

Defense (Coombs)

Any agent of the Government who is authorized to make that statement. Yes. OCA. They bring Ambassador so and so, 'This caused grave damage, because it impacted...' 'This could cause damage,' or, 'This could impact ongoing diplomatic efforts' and they are talking about charge.

And, you look at Department of State...by an agent authority of the Department of State. That is a prior statement, that we should be able to impeach [the classification determination].

Judge Lind

Confused.

Defense (Coombs)

If the witness here says, 'Could cause damage on X date' ... 'This caused damage.' Depends on witness...they have to under Diaz...that this 'could cause' damage...

Judge Lind

That would inform...on day of reasoning...depends after release?

Defense (Coombs)

'Could' this cause damage? OCA opinion, and that is what Diaz [says]. So you have to offer some information that it 'could cause' damage...if the Government wanted to offer damage, that is actually...

Judge Lind

[Missed.]

[Not clear who made this statement from my notes. I believe it was Judge Lind, but it may have been lead civilian defense counsel, Mr. David Coombs.] Don't believe there is any case where this type of argument successful on appeal.

Defense (Coombs)

Drake case is a perfect example.

Here is opinion on [18 USC] 793...We would argue Diaz, you have to offer evidence. What actually happened...also relevant under bias, RCM 608(c).

Department of State witnesses here earlier...I was non-confrontational...to get information. If Court recalls that witness made this statement..'impacted...' and when I asked, 'Have you seen that...[damage assessment]?' the answer is 'No, I haven't seen it.' So, 'You are just guessing?' [Answer is], 'Yes.' At every instance...whoever the Government brings, when this information was leaked Admiral McMullen, [former] Defense Secretary Robert Gates, [made statements] how the sky was falling, that, 'WikiLeaks can say whatever it wants,' and the kind of 'blood they have on their hands', and 'targeted assassinations', and 'no one is gonna trust order'...and within short order they backed off. No sources and methods compromised, and Clinton said...

And, then you have proof in the pudding, who ever Government puts up is going to have vested interest to espouse opinion of their boss or previous boss...maximize potential harm, and minimize any concession of any lack of harm. Under RCM 608(a) any time they espouse. With actual proof SigActs...damage assessments...no sources and methods were compromised. That should come in as means to impeach.

Judge Lind

If I ruled if it was admissible?

Defense (Coombs)

If you said what happened 'could' cause strained relation with country X and then you have open source or other documents. Panel can't say what actually happening. Government can bring anyone from whatever agency. 'I believe to educate the public.' Now panel members left with... You have to offer something more. What 'actually' happened.

Judge Lind

Element is 'reason to believe' not 'believe'?

Defense (Coombs)

Going along with Diaz statement. Let's use diplomatic cables...'I didn't believe could cause damage.' Now Government has somebody say just the opposite..what additional evidence can you offer?

Go to assault case. What is relevant under [Military Rules for Evidence] 401 [Scope of probative evidence in military commissions]. It 'could cause' damage...it 'couldn't cause' damage. What did happen? And, the fact that the Government is trying to [preclude?] this information [regarding actual damage?] speaks volumes. ... Otherwise, panel members deciding on what limited information.

Going to 'wanton'. Whether this did cause regarding 'wanton'.

Judge Lind

How after...?

Defense (Coombs)

No one could know at the time he did this, but the issue isn't if he knew this, 'could' this information cause damage... Just like damage. All those factors come into play...but the actual determination in panel members if this 'could' cause damage...and the Government offers...panel members have that...not relevant for Pfc. Manning, but for panel members. Without that, then Diaz and Morison don't make sense. Government argument regarding [those cases] don't say that.

If someone is charged with assault, that [damage] is pretty good evidence in the merits, and aggravation, each of these: Joseph and Hudson.

Court of Appeals actually look at what happened and in both instances used [what actually happened in relation to] 'what is going to happen'.

Joseph case...no one knows if she has significant trauma...looks at the fact that she didn't require stitches.

[Sounds like "Boutier"] case. Training...master swimmer and scuba diver. No one knows what is gonna happen. Individual goes through...after find out didn't have training.

Again, Joseph, not a decision for a judge...all information...'could cause death or bodily harm.'

Judge Lind

Difference in assault means whether [could see the?] fists [caused that injury?] an element and specific period of time, is there a distinction between these cases, 'reason to believe...advantage of any foreign nation'. We are talking about a time period.

Defense (Coombs)

Understand. Did these accused 'believe could' cause damage?

I do think when you look at Diaz and Morison, what he 'should have known' on knowledge, skills, and training...'could' has to mean something. Can't be too speculative...especially as it relates to Military Rules for Evidence and relevance...does it make it probable.

Panel members can take all this information into context. Then after the fact is some evidence on whether or not it 'could'. Only way you keep it out. Saying, 'relevant'...to the everyday person, 'Would that impact your opinion?' 'Yes, it would.'

Accused is lucky it didn't cause damage, and he was 'reasonable', that logical chain in defense.

If the Court believes that breaks at that belief is 'reasonable'...[if the Court precludes harm] that will eliminate a viable defense, and cut defense off at the knees.

Pfc. Manning believed it couldn't cause damage and his belief is reasonable. We are severely...

Judge Lind

Address MRE [Military Rules for Evidence] 403 [Exclusion of probative evidence on grounds of prejudice, confusion, or waste of time] [If the Judge denies the Government motion to preclude actual harm, how does she prevent] ...from confusing members [with harm] instead of actual elements?

Defense (Coombs)

I know you don't like to give instructions.

Judge Lind

Not talking about actual instructions...[but] actual trial

Defense (Coombs)

MRE 403 is emotional bias. Through instruction could tell how the information is relevant. We offer the accused believed it 'could' not cause damage, and did not cause damage...reason to know 'could' cause damage...to the US or any foreign nation.

MRE 403...will the members disregard other information and decide...

Judge Lind

Not emotional. But element?

Defense (Coombs)

By caveating that to panel members. Didn't cause damage...and this is one of the pieces they will decide.

Judge Lind

Thank you, Mr. Coombs. Major Fein?

Prosecution (Fein)

This entire issue would confuse on merits, whether accused had 'reason to believe', because not elements.

Defense is trying to argue that, that decision was proper on whether that information was proper...

Judge Lind

I thought argument was even if the information was classified, it was not causing damage.

Prosecution (Fein)

That argument has no point of conclusion. So, this 'could cause' damage doesn't impeach. Steele has better language then Diaz. Diaz in footnote on page 133, defense stopped reading there. [Fein reads footnote, he says defense missed].

[Missed.]

Article 104 'could cause' harm. You need to go to Steele. Court over and over talks about this in Steele.

Judge Lind

[Missed.]

Prosecution (Fein)

No case about actual harm. Talking about being relevant or not relevant, means likely. In order to be [charged with harm?]... ...then 'intended to cause harm.' We do not intend...found him guilty of lesser included offenses. Actual damage at the time of intent, did more than [tap?] someone. Then, you can infer mens rea. Then, use more than...

There are no other cases than these cases in the Espionage Act. Prevents certain people from disclosing..once transmission is complete.

Judge Lind

Actually, once it is 'reasonable to believe'...

Prosecution (Fein)

Government has the burden to provide evidence 'reason to believe' and 'national defense'. Unclassified...was classified. 'Reason to believe' ...coalition of forces in Iraq. Defense can cross-examine why it is in the national defense and closely held...why it was national security information or closely held.

Judge Lind

Evidence that you classified and said could cause damage, didn't cause damage, doesn't that impeach...?

Prosecution (Fein)

Could the defense, say you decide is impeachable. Fact X, Y, and Z could not...closely held, not national security [information]. That fact may not be known to witness. Even still, it does not mean tomorrow it couldn't. Goes back to whether it 'could'.

Judge Lind

Understand. 'Could cause' damage. I can impeach as of today?

Prosecution (Fein)

Not relevant, mitigation evidence. A victim of a crime. It's not relevant if they have a long life mental health issues, not relevant if they were a victim of a crime...take elements on the merits.

Judge Lind

Thank you.

Defense (Coombs)

Hudson case didn't consider what harm was at very moment...was when spouse went to hospital. 'Reason to believe' prong states you may consider the nature of the information. So, considering nature of the information involved was what was allowed to be put on. Damage assessment is part of the information to decide if he 'reasonably' 'could' have 'known'. Let's say he 'reasonably' should have known cable would affect foreign policy. So, element construction for 'reason to believe...should be reasonably have known'.

Take out classified information. We take a look at what happened with the benefit of hindsight to determine 'reasonably should have known' one of he factors panel could consider is actual harm.

Judge Lind

Now, is something after relevant?

Defense (Coombs)

When you are talking legal or logic? The only way you could say what actually caused harm...is the evidence. Legal scholars can sit around and talk about this issue of MRE 401 [Scope of probative evidence in military commissions] is not a huge hurdle...even taking out legal...'any tendency' would have to prove did the accused have 'reason to believe' he knew or should have known.

Panel members are going to be [individuals with] college degrees. They are going to understand 'reason to believe'. It is a viable defense...'reason to believe could cause damage'. See the nature of the information. Government likes to say, 'could cause damage'...2012...somewhere the 'tomorrow could cause damage...' and we should not be excluded [from arguing that in the merits].

[COURT IN RECESS]

Judge Lind

Please be seated. This article 39(a) Session has been called to order...

Anything else we need to address in the next eight minutes?

Prosecution (Fein)

MRE 505(g)(2). Authorized substitutions for FBI impact statement. No oral argument.

Judge Lind

[Will any witness be testifying to] any evidence on sentencing or...?

Prosecution (Fein)

Not on FBI impact statement.

Judge Lind

Not on FBI...?

Prosecution (Fein)

Now disclosing under Brady.

Judge Lind

Does the Government have access...is the Government in any way [missed]?

Prosecution (Fein)

No.

Judge Lind

Are the two witnesses from the FBI familiar with the document?

Prosecution (Fein)

Created by FBI Headquarters, not investigative branch.

Judge Lind

They are not going to be talking about impact or damage?

Prosecution (Fein)

No.

Defense (Coombs)

The prosecution disclosure to defense [for the corresponding MRE 505(g)(2) classified motion for ex parte review, an unclassified motion] is appellate exhibit 157. Court ordered redacted filings and so there is a record of what transpired.

Prosecution (Fein)

Appellate 156 os the Government's original classified filing.

Judge Lind

[Appellate exhibit?] 182 [missed]. Anything else?

Prosecution (Fein)

One more administrative issue. Cover sheet for Federal instructions. [Missed].

Judge Lind

Same thing with the defense. Appellate exhibit...first pages of cover pages...find whatever enclosure and that to the front page of experts.

[END OF DAY]

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