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Transcript | US v Pfc. Manning, Article 39(a) Session, 07/16/12

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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 17 16, 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)

All parties are present. Court Reporter [William] absent. Hadaway (sp.) [acting as Court Reporter] is present and sworn in. [Transcriber believes both are Staff Sergeants]

Judge Lind

Before we proceed [to prosecution] ...exhibits with administrative corrections?

Prosecution (Fein)

Appellate exhibit 178 and 179. Defense notified the prosecution...based on marking...11 July 2012, the US [the prosecution] refiled a copy version of appellate exhibit 178. Prosecution filed appellate exhibit 179, [which is] Government classified supplement to classified witness lists. The corrective correction related to just the administrative markings.

Judge Lind

...via Government, another document issue from CIA.

Prosecution (Fein)

...12 July [transcriber noted "12 July - 11 July"] follow on reports to original [CIA] WikiLeaks Task Force and [the Government] intends to submit no later than [missed date or one was not given].

Judge Lind

That is Appellate Exhibit 278.

Defense (Coombs)

Defense just requests [regarding] this document [that the Government notes] when it was received and when they were notified [about its existence].

Judge Lind

...will not add when we became notified. [Not sure here is the Judge was reciting the Government's position, or that of the Court]...

Defense (Coombs)

Just so long as the original is part of the file, because there are substitutions.

Judge Lind

[to prosecution] modified protective order? Exhibit...

Prosecution (Fein)

marked as appellate exhibit 163, the prosecution's motion. Defense response is appellate exhibit 183.

Judge Lind

Can [the Government] articulate what and why?

Prosecution (Fein)

Yes, your Honor. US requested to amend previous protective order [to] permit defense all pleading online only after defense certified that... Once certified then [defense can] published online with US Government and equity holders reviewing documents. [This concerns the defense's publication of their motions online.]

[There are] three other protective orders cover federal, Grand Jury, and other sealed documents.

This is how the document is properly redacted, under seal or protective order. Much more efficient. [Fein is suggesting that the onus should be on the defense to certify the documents are properly redacted before publishing online.]

Government moves to amend previous [protective order]. The Court has said all names be redacted. The Government moves to [have] that portion be amended to include positions.

Judge Lind

Questions. Protective order as it stands requests defense not to release, why additional certification.

Prosecution (Fein)

So, the defense has to follow certification.

Judge Lind

...confusion. Correct me. You are not publishing in violation of the protective order. Part of the justification that it is onerous to go to other entities, that defense is going to publish. Original [protective order] doesn't require that?

Prosecution (Fein)

The rational is that the information needs to be protected. [The] process. Prosecution forwards to the equity holder. There is no other information that any equity holder needs to...protect. So, now...just allow defense to publish...the order. The Government withdraws our request for certification if the Court would grant that the defense be reminded that they cannot violate protective order.

Defense (Coombs)

I think this falls into, 'If it is not broken...don't fix.' ...within motion and what they are saying...history. When defense notified that they intended to publish [some of the defense legal filings] on the Internet, the Government had a heart attack. They told the told the defense...the world would end.

Then they said, 'You are going to have to redact, and then the Government is going to have to look at it,' and that was the final solution. There was a time defense was putting its arguments...the Government said, "defense was put[ting] out...and violating the protective order.' ...[?] sends email. Court says protective order doesn't concern blog posts and legal [filings]. Then the Government said, going from heart attack to [this motion to amend the protective order].

How the Government can take one position, and now let defense publish anything they want. Main...180 degree [turn]... to tell this Court, 'it is overly burdensome.' First , they say black was burdensome, then yellow. A lot of motions legal, contain no protected information..., individuals not parties in case. If Government is saying you don't have to coordinate with equity holders...doesn't resonate as being very true. If defense doesn't have to, surely the Government doesn't have to. Lion share of motions we file? Answer would be, "No.' There statement, 'We are just gonna let the defense...' Now why would they do that? And, that is to have a moment to say, 'Gotcha.' Very creative links the Government created...and, 'If someone knew X and they knew Y, they could get to Z.' The only way and deviate is the Government to have that benefit. We haven't had one issue of spillage... Has the Government's come to the Court for additional redactions? No. ...[Defense had] a discussion [with the Government concerning] small footnote, we redacted. This is not an issue to change. Defense requests the Court deny the Government's request. If the Government is so burdensome to coordinate with equity holders. What in the last five filings [is so burdensome]? Who did you go to? What did you review? If they did, we would like that in writing. The majority of our filings have been legal.

Judge Lind

In your written filing...? You agreed to second point...'identity of duty positions.'

Defense (Coombs)

Yes. And, we have been doing that since prior to this motion filing. Previous motion filings, based on Government's request to do so.

Judge Lind

[missed]

Defense (Coombs)

When we do our redactions it is good faith...personal identifying information.

Judge Lind

Is the Court security officer reviewing the motions?

Defense (Coombs)

No. Our defense security experts don't work only for us. No. They are not reviewing. We have requested the Convening Authority to give directives to our security experts that this [case] takes precedence. They have not done that. We are subject to their superiors' taskings.

Judge Lind

[missed]

Prosecution (Fein)

The original [protective] order was [five?] weeks, five days, five days and one scheduling day. Initial version. Two weeks after feedback, we notified the Court and defense, responses are due, get back, notify by reply day. Three days after reply date. Many of the filings occur outside normal two week, two week, five days. Outside organizations [he means the equity holders] having to spend a lot of time on administration and discovery - same individuals and tasks.

Judge Lind

So, [the Government] is asking for calendar outside normal calendar?

Prosecution (Fein)

Well, if you won't rule in our favor, then we need three more days to make sure to give all the entities time to respond to file size.

Defense (Coombs)

Defense argued most of the filings are legal?

Prosecution (Fein)

No. More than fifty per cent from September to May were legal, but once discovery started that changed. Department of State is easy. Motion to compel no. 2 and [?] even some legal requests require us to send.

Defense (Coombs)

You say 'require us', but the Court order doesn't require?

Prosecution (Fein)

The equity holder requires.

Defense (Coombs)

Then, doesn't make sense, if [you are arguing the motion to change the protective order]...?

Prosecution (Fein)

What has happened is based off of defense...equity holders agree they don't have to review everything. The original litigation was all filings. Court order [is for] just defense filings.

Judge Lind

So, Major Fein, if the Court is clear..., so that even without certification, Government reviews defense filings...?

Prosecution (Fein)

Don't understand.

Defense (Coombs)

[In the] Court order, the Government has the option to certify.

Prosecution (Fein)

Certification [by defense] acknowledge[d] issue...as defense said, 'if we are filing...Court...follow...oddity from prosecution... [We] are not looking to catch the defense [in a classification spillage].

Judge Lind

The Government already withdrew the certification [requirement] based on what Mr. Coombs said. Now defense is filing redacted motions. I do view it as a certification issue. So, is the Government saying...change calendar?

Prosecution (Fein)

Yes. Once they send into Court, they file it.

Judge Lind

The Court is not inclined to do that. I do want the Government to at least look at and voice objection.

Prosecution (Fein)

The Government says it is broken...

Judge Lind

How? Government itself going to equity holders?

Prosecution (Fein)

Yes, we are the stewards of the Government...but we are not gonna get into their work product. [going?] not because of Court's order, but because they [equity holders] want to review it. Court order no obligation, then we as prosecutors, we haven't violated prohibitive order. [The] ones [that] are the institutions.

Judge Lind

Understand. So, all these institutions are fine?

Prosecution (Fein)

Sorry, the [first issue with protective order, protected information, and equity holder reviewing the filings] first came up in March, now they are confident in the defense and the Court.

Judge Lind

...the fact that you do not object...

Prosecution (Fein)

Yes, your Honor. Here is the email stream... The defense doesn't intend to file protective... So, if we were not [for them], and if they violate [the protective order], that we did not catch...then we are somehow resolved of responsibility. Justi like in federal court, it is submitted. If the Court is inclined, the second we submit it, nothing objects, and there is no objection. If there is a violation...

Judge Lind

Thus far there has been no issue, no violation. If got streamlined, and there is a violation, I am certainly free to modify orders and that there...making [defense] responsible [for certification]...

Prosecution (Fein)

...in violation, there needs to be accountability.

Judge Lind

Certainly not in violation of protective orders...giving the Government. That is up to the Government, am willing to [delay?] want to submit.

Prosecution (Fein)

Yes, we need more time. ...next long recess after lunch...

Judge Lind

Again, I am not inclined to change...onerous to go out...

Prosecution (Fein)

One other note. [The] request [referred to by defense concerning other taskings by their appointed security experts, and direction that this case takes precedence] never came through , and needs to be litigated. [Government] sent a memo on letter head [requesting ?] sign this...in order to make experts have time. We never asked defense to submit, and they haven't.

Judge Lind

The issue is not before the Court.

Defense (Coombs)

Equity holders say no need. Trial counsel can take standard. Look at it yourself. I guess disconnect not born out of principle, but get out of [responsibility or liability?] if they look at it. Court's order [explains] what that is and says why...and so far they haven't done any of it. Hasn't been need for that. this burdensome process is self created. Two things can't be true, equals, so burdensome, equals, equity holders are fine. Government can look through and state why and notate which [objections]. Example the footnote. Defense did [redactions] on its own, but when you take a look, you would be hard pressed to find information on equity holders [meaning protected information]. Defense discovery motions did not have protective orders.

Judge Lind

If you file, and they don't object...?

Defense (Coombs)

If I was in the Court...Government didn't review. Unless I felt the Government was making [arguments with] candor [to the Court]. I think if defense files something we are [?] nothing subject to the protective order. Reasonable to [?] that. Only if the defense did [intentionally?]...would be reasonable.

Judge Lind

Less diligence since last process began?

Defense (Coombs)

No, your Honor. If Government believes pieces of information should be protected, [they should] get equity holders opinions and from the standpoint of filing we will redact.

Judge Lind

On merit...two weeks, two weeks, five days. Defense position allowing Government additional time?

Defense (Coombs)

The goal of defense filings for public that wasn't possible...if the Government says on one particular [filing] we need additional time, '[Assessing? Asking?] we want two weeks...' not a problem.

Judge Lind

Major Fein?

Prosecution (Fein)

Nothing, your Honor.

Judge Lind

Taking under advisement. Government will give me information on schedule change.

Judge Lind

Defense motion to dismiss Specifications 13 and 14 [Renewed Defense Motion to Dismiss for Failure to State an Offense: Specifications 13 and 14 of Charge II]

Defense (Coombs)

Defense [Renewed Defense Motion to Dismiss for Failure to State an Offense: Specifications 13 and 14 of Charge II] is appellate exhibit 165. Defense reply [Defense Reply to Government Response to Renewed Defense Motion to Dismiss for Failure to State an Offense: Specifications 13 and 14 of Charge II] is appellate exhibit 201, as defense notified additionally referred to in oral argument.

Judge Lind

I have appellate exhibit 170...[missed]. Appellate exhibit 165, 170, [missed].

Defense (Coombs)

We are here again [arguing for] Specifications 13 and 14 dismissal. At the last motion [hearing the Government asserted in oral arguments they possessed] other evidence other than the AUP [Acceptable Use Policy for the Government's Specification 13 and 14 of Charge II which pertains to 18 USC 1030(a)(1) or "exceeds authorized access"]. Reply...they say they have no additional evidence than the AUP. Did Pfc. Manning have access? Un-contradicted, yes he did. Then he has access, ...not manner. Does the individual have authorized access. Focus on whether information is authorized.

Judge Lind

Where...not manner?

Defense (Coombs)

Manner goes to contractual based restrictions and code based. Nosal opinion...Professor [Orin] Kerr and his limitations. Was there a code based...if no, employer...upset, you can charge other things [under] Article 92, not [18 USC] 1030. Undisputed evidence in this case. They [The Government] has not stipulated...anyone who had access to SIPRNet had access to the NetCentric Diplomacy database. That is also a flat out admission by the Government. The Government tried to pull the wool over the Court's eyes, [saying] Pfc. Manning exceeded authorized access trying to insinuate a code based restriction. So lets look at that theory. Page six of reply and attachment with AUP. Three theories. Number one. Contractual terms of service, other than purpose. So look at attached with AUP. 6(a) down is contractual proscription. You are only gonna use authorization software etc. All contractual...could be any employer. A limitation [concerning] what you can and cannot do. No limitation on what any employer can and cannot do. Most compelling. No Court has had, based on Court.

Theory number two. Purpose based restriction. For official use. Nosal, John Rodriguez [United States v. Rodriguez 628 F.3d 1258 (11th Cir. 2007)] by that intellectual sense. But, purpose based restriction not what Congress intended. They were code based, which gets us to number three.

Number three. Code based. Tricks the computer to gain greater access. Doing something that exploits a [?]. Electronic gate, but you are able to [?]. Every Court agrees is a violation.

Then look at the Government's argument. Government told Court this is our definitive theory. They pointed to AUP, [warning] banner. [The Government] said Nosal not well thought out. That was [not] intellectual honesty. Government's current position is a theory one, and they are trying to articulate it as theory three. US v. Drew [United States v. Drew, 259 F.R.D. 449 (C.D. Cal.2009),], example MySpace case violated theory one...and in that case...in the Drew opinion, Defense said, 'No.' In that case charge dismissed for failure to state an offense. What Government is asking the Court to do is to strike out on its own, and be the first Court...by using buzz words for "hacked" and "hacked the information." Take a look at the Government's current argument. When you look at current argument you will see that the Government is arguing a theory one, or theory one and two regulation by contract. Theory three by code [violation] has some sort of electronic gate preventing user from doing something.

Regulation by contract could be implicit, but usually contractual term written into AUP. Here are the terms you agree to use our computer.

Regulation by code, regulation by contract. An honor system based solely on honor or system. [18 USC] 1030 only concerns regulation by code.

Real world example. Professor Kerr...regulation by code...in order to get into room, you have to pick the lock. Regulation by contract, Government argues the door is open...says only do this for official purposes. Now if they violate this, that is not [18 USC] 1030.

Number three. Regulation by code something they have to break into. That is the example cited from Nosal. Nosal opinion you use someone else's password. Code based proscription, you have some [?].

Number two. Exploit weakness. Were someone exploits something to gain greater privileges than they have. Either Government doesn't understand of they are trying to mislead this Court.

They are going to say, Pfc. Manning 'circumvented'. 'He used Wget.' Well that is an interesting play on the word 'circumvented.'

Judge Lind

I thought use and access in Nosal.

Defense (Coombs)

That is distinction...those based on purpose restrictions. 'So' language [in Nosal reading of 18 USC 1030(a)(1)] the Court adopted. Limitation for purpose [?] of employer or contractual based...that is the purpose base or contractual base. Code based restriction is actually breaking in. They give examples. [missed].

Goes back to another example. If you go in and steal something...if the door is wide open you may have committed larceny, but not burglary. You do not have a 1030 offense.

If you look at the Government's theory at least for Specification 13, it is based on Wget, but take a look at AUP, look at on third page on contractual terms. 'I will not use...' That is contractual terms. There would be nothing to prevent then... Let's look at (e) 'I will use virus checking...' Let's assume Pfc. Manning downloaded something, but did not use virus [protection]. Lets assume now...

Coombs goes into different examples of the AUP.

Judge Lind

How is [the Government?] so alleging exceeded authorized access? [This question's transcription is not certain by the transcriber]

Defense (Coombs)

...to access, to alter or access some way. The Government is arguing Wget. The usual manner is not using Wget. [Pfc. Manning] has no restriction. You could have...to excel...easily crawled URL that did not have to require any [password?]. [If there were a technical restriction] they would be saying exactly how he circumvented it. ...other terms using a password, nothing virus checked, not manner...under Government's argument. That is how the theory would play out. If they admitted that the NetCentric diplomacy database has no restriction. If [Pfc. Manning] used a 2010 version of excel, [and] 2009 version of excel was authorized. They would be arguing that was unauthorized access. That is why Drew Court referenced that.

No reason for the Government to be reasonable. [They could say] you have to stand up and sign the national anthem before you access this information, and if you don't that is unauthorized access. Government only cites that in Specification 13. A one liner...depends on instructions. They don't concede that...that Pfc. Manning did not go to and ditch. They don't have a stated violation. Answer is obvious.

Answer is obvious. They have 22 witnesses [to come testify about the] damage of a particular cable...they have 22 witnesses from the Department of State. ...if this Court does not state an offense.

Judge Lind

Prejudice...?

Defense (Coombs)

Problematic and prejudicial [that Specifications] 13 and 14 [of Charge II] do not state and offense, [because] did not depend on evidence. Court could dismiss. The Prosecution wants to survive this motion, that he 'circumvented' code...LIO [lesser included offense], which is charge...but if Court dismisses...

Judge Lind

What if I dismiss 1030(a)(1)?

Defense (Coombs)

We would contend major amending...only reason LIO [lesser included offense] is because...how is that consistent...on appeal. [Missed case law cited.] ...because at that point if you would have had... [missed] ...child porn cases prior to trial. Survives on...because charge not dismissed. Then, they have lesser included [offense].

Now again. Under defense position there is certain evidence. Anyone with SIPRNET access has access to Net Centric Diplomacy database. No password restriction. Anyone [can access] any and all diplomatic cables as officer [Captain Steven Lim testified]... No restriction on quantity. No technical restriction from using Wget, authorized or unauthorized software. You would have to admit.

Did he have permission? Yes. Did he have permission to download? Yes. Did he have to go past electronic gate? No. If the Government were honest, they would admit this. This is not a 1030 [violation]. Subject to your questions.

Judge Lind

Thank you.

Prosecution (Morrow)

US [argues] do not [dismiss Specifications] 13 and 14 fo Charge II. Government's theory of exceeded authorization access using unauthorized program.

Defense confuses Wget and Acceptable Use Policy [AUP]. Wget does not appear on...there is AUP.

Evidence. Wget was unauthorized, non standard on D-6A computers. Number one, attachment A of the defense motion. Number two, enclosure number two to Government's response.

Attachment A to defense motion. Email exchange between Army CID and Distributed Common Ground System - Army (DCGS-A) [missed entity but related to regulations for DCGS-A] discussing whether authorized for use. 'Has it been authorized? No. Does it have certification? No.' Nothing about the AUP in this. Number two, [testimony of Special Agent, Computer Crimes Investigative Unit (CCIU)] Shaver. He doesn't discuss Acceptable Use Policy...with Wget at the Pretrial. [Shaver testified about Wget.] Shaver testifies that Wget is not one of the standard programs for Army Gold Master.

Judge Lind

Let me stop you. Correct appellate exhibit? defense request for instructions 165?

Prosecution (Morrow)

Appellate exhibit 188. We believe 188.

Judge Lind

Attachment?

Judge Lind

Court reporter needs enclosures two and three.

Prosecution (Morrow)

Okay [Grumpy.] It's complete.

Looking at Special Agent Shavers Article 32 [testimony]. Enclosure two at 131, discusses specifics of Wget. But again, he makes no reference to AUP. Not what programs are or not authorized for Government. Further, Government upholds Nosal, limited to violation on access, not use. Stated quite clearly on [access?]. Never entitled, never [missed] or ... unauthorized manner.

[Cites case, indecipherable in transcriber's notes] goes much further than authorization to access, [saying] cannot be meaningful separated from manner.

Morrow cites two hypotheticals from Nosal

Number one. Walks out with thumbdrive. Or, number two, ...full username, uses another so to obtain...improper. Wget. Government [case] is not centered on misuse or misappropriation, but on manner obtained, because the program was unauthorized.

1996 legislative history, as you noted, you would instruct. [See Court Ruling on Defense Motion to Dismiss Specifications 13 and 14 of Charge II]

Government's [argument] relevant largely on 1996 history...[18 USC] 793(e) and [18] USC 1030(a)(1). Congress...1030(a)(1) use of the computer not the [missed]. Page six of 104-357 [Based on verbatim transcript of Court's previous ruling this may actually be S. REP. No. 114-357].

As Government noted, defense is focused on people deliberately breaking into Government [computer]. This phrase cannot be read literally. Makes no sense under [18 USC] 1030(e)(6). Breaking into computer.

Judge Lind

Well, what about code base?

Prosecution (Morrow)

That wouldn't be breaking into a computer. That would be breaking into information.

Page six, last sentence. There is considerable overlap. Amendment specifically covers conduct or insider [who] gets classified information. So, in the Government's mind breaking into "without authorization." Just a point out of the place.

Page nine, same Congress. "in some...insider...only if intend to cause damage...' Outside hackers could be punished for trespass. Appellate exhibit 134 is the legislative history. Never use 'insider' only outsiders and hackers. Not trying to...[missed]. 1996 legislative history used as a guiding light. Criminal electronic trespassers and hackers. ...if language equally applicable to insiders and outsiders. ...bypassed ordinary method, adding harvested information. His access amounted to trespassing, because done without authorization on a Government owned SIPRNet computer. Use being proscribed.

Judge Lind

[Missed.]

Prosecution (Morrow)

We do not address. Depends on instruction for clause 22 offense.

Number one, people understand as follows. Every CFAA [Computer Fraud and Abuse Act], misuse and misappropriation and or number two. CFAA does not include misuse and misappropriation. Government [argument] has nothing to do with misuse, but manner. Government contends information of Specification 13 and 14 [16 records US State Department cables for Specification 13 and Reykjavik 13 for Specification 14] ...used Wget, used unauthorized access. Government [argues accused] doesn't exploit weakness. Accused had a key to house, but used a bulldozer to get into that information.

[missed]

...[regarding the defense]...much made on Professor Kerr and his one article. [Defense] makes [argument]...on what law should be, and not what it is...

Judge Lind

...not three theories?

Prosecution (Morrow)

There aren't three theories. There are two theories. Government already articulated in...

Judge Lind

Theory one? Theory two? Theory three? [Not clear from notes what Judge was asking.]

Prosecution (Morrow)

No Court distinguished theory one or two. The Courts lump those together. Despite four or five [this may refer to fourth or fifth circuit]...improper...to information. Nosal made that into....[missed].

Purpose based theory misuse or misappropriation. I went through all...case. There is only two sides to coin, and the [missed]. I guess I go back to your ruling. Defense would say theory two. Subject to your questions.

Judge Lind

NetCentric Diplomacy database. [The US State Department] cables, are they at issue in any other Specification?

Prosecution (Morrow)

Yes. Specification 12, entire database. Government alleges he stole part of that. Why no prejudice...

Judge Lind

Thank you.

Defense (Coombs)

Just to respond to a couple of things. Nosal is dealing on access not use. Then they break down. Never entitled. Unauthorized manner. Unauthorized goes back to the 'So' argument, because used Wget, [the Government argues Pfc. Manning] violated ordinary method. How you access. First is purpose based. The code based. The two examples that they cite are crystal clear. That undercut most. They...say first one, within that [missed].

Coombs talks about the two Government examples.

First person, thumb drive, code based. restriction, proper [18 USC] 1030. Second, using another person's password. [Another] code based restriction.

Those are code based restrictions. The way that they did not do so is that they [?] computer. Nosal does not...any authority. Not that long ago... Government says purpose based, consistent with 1996 [legislative history]. They say they looked at [every case]. Drew does not distinguish between theory one and two.

Recess is called so that the either requested case law or the 1996 legislative history can be printed and given to Judge Lind. Transcriber's notes are not clear.

Defense (Coombs)

We don't have ability to print.

Defense asks the Judge if the Government could print out [either requested case law or the 1996 legislative history]. Judge Lind asks the Government.

Prosecution (Fein)

[Throws his hands up.] Yes, your Honor. We could print it, but so could defense counsel!

Court back in session.

Defense (Coombs)

You cannot have an employer defining a criminal statute.

Judge Lind

Not in all briefs? ...Wget?

Defense (Coombs)

Yes. Wget unauthorized for D6A, [allowed] on other computers. Not a nefarious program. When you look at the Government's argument, 'never entitled, unauthorized manner' Government doesn't cite any case [with] authority. Their opinion on 1996 amendment and Professor Orin Kerr is he is some guy who tells how the law should be. [missed] No case has ever gone that way. ...Courts that follow that opinion.

Judge Lind

Any cases involve classified 1030(a)(1)?

Defense (Coombs)

Primarily they all involve 1030(a)(4) or (c)(3)...again they look at whether a person had access to information and how they used it. The key thing, exceeds authorized access, has to be read throughout authorization statute. True for (a)(4), true for (a)(1).

[missed]

They had keys to certain doors, and not others. The Government analogy: had keys, used bulldozer doesn't change 'authorized access'. Government can say if you can go into room and use a back pack that may violate contractual obligation, but not access. Government has burden and it is 'candor to the Court.' They could say he had access. That he brought in a back pack...that doesn't make it contractual. They know theory...

Judge Lind

...turns on access?

Defense (Coombs)

Contractual. You can have those things, but it is not 1030. Drew not purpose...Nosal. If you take AUP and change software...how would the Government articulate Wget theory, based on unauthorized program. When you pull back program, it is at the end of the day theory one. That could be Article 92, that is not 1030. That is Drew case. Employer cannot articulate criminal statute. Circumvented ordinary method. Subject to your questions.

Judge Lind

Yes.

Prosecution (Morrow)

May I respond briefly? Here is the legislative history. Wget can be nefarious program, not authorized by AUP. ...no case law regarding Nosal. Court adopted as interpretation. Manner to access matters. Wget not component of NetCentric Diplomacy database. Wasn't a part of the Web site...part of the computer.

Defense (Coombs)

259 FRD 449 cite for Drew [United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009)]

Judge Lind

Government getting that for me... [referring to print out above]?

[COURT IN RECESS]

ALL RISE

Judge Lind

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

Prosecution (Fein)

...Hadaway (sp.) [acting as Court Reporter] is absent....

Judge Lind

What...appellate exhibit 206, email from Prosecution to leave until 18 July to file for protective order...defense notice MRE 505(h)(3) [The MRE 505(h) defense notice must be served on trial counsel and the military judge within the time frame specified by the military judge or, if no time has been specified, prior to arraignment...The notice must include a brief description of the classified information but must be "more than a mere general statement of the areas about which the evidence may be introduced"] Government no longer wished to file. Prosecution request for leave is appellate exhibit 209.

...make sure I understand. US v. Drew. This case initially began as a felony. 1030(c)(2) and (d)(2), which involves access in furtherance of a crime. Under that felony the Court held the scienter element would allow FaceBook user to fit within 1030.

Defense (Coombs)

The felony, she was found guilty of misdemeanor. Drew challenge of 1030...the Federal aspect of it, was her argument.

Judge Lind

So what do you mean 'At this time...unconstitutional delegation...presence of [guilty] intentional access...1030(c)(2)(b)(2) overcame unconstitutional...

Defense (Coombs)

The actual challenge on 1030, they didn't articulate it as a 1030 offense to this act, then Prof. Kerr got involved and it was subsequently dismissed.

Judge Lind

Not evident from what I have.

Defense (Coombs)

They did not challenge at time of felony, but at misdemeanor, based, I guess on her counsel at the time.

Judge Lind

Government?

Prosecution (Morrow)

No, your Honor.

Would like to propose calendar. If the Court makes Government review document, that the Government have five days. If we seek protective order, and if Government needs further, then 10 duty days...filings not filed.

Judge Lind

...for these not in schedule?

Prosecution (Fein)

For everything. [missed]

Defense (Coombs)

If Government says for all filings five duty days...not sufficient to go to equity holder...ask Court after articulating.

Judge Lind

Government draft up an addendum to Protective Order amendment. Will not amend Court order in any additional form.

[missed]

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

Can't do all instructions Article 104 [Defense Motion for Specific Instructions: The Specification of Charge I and Defense Reply to Government Response to Defense Motion for Specific Instructions: The Specification of Charge I] and Specification 1 of Charge II, may 18 USC 641.

Article 134 instructions. Defense appellate exhibit [138?] [Defense Motion for Specific Instructions: The Specification of Charge I]. Appellate exhibit 169 [?]. Prosecution response, appellate exhibit 186, Specification 1 of Charge I. Defense reply to Government response to [Defense Motion for Specific Instructions: The Specification of Charge I] appellate exhibit 198. Government request for instructions is appellate exhibit 159.

Prosecution (Morrow)

There should be several enclosures.

Judge Lind

Appellate exhibit 159...instructions Government. Let me ask instructions, elements the same, except classified entity for bates number...

Prosecution (Morrow)

...adopted by Court.

Judge Lind

...for enemy portion. Defense identified by bates numbers.

Prosecution (Morrow)

We all know who we are talking about.

Judge Lind

Okay.

Defense (Coombs)

Accused must have actual knowledge for Article 104(2) ["without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct."]. Defense instructions as to what this means. Government must prove beyond doubt...knowingly gave information to the enemy, doesn't need to show intention. Not trying to apply intent to this. To state 104 as Government, the accused intended to give information to the enemy.

When you look at case law [?] Article 104(2) would, could, or likely... Olson, Batchelor, and Anderson accused must have intended. [United States v. Anderson, 68 M.J. 378, 387 (CAAF 2010); United States v. Batchelor, 22 CMR 144, 157 (CMA 1956); United States v. Olson, 20 CMR 461, 464 (ABR 1955)]

Proof without saying the individual intended that is what makes this case stand out from any other 104. 'Just putting intelligence on the Internet...' Government want to apply negligent standard to mens rea. If you put it on the Internet of course it is accessible to anyone who has Internet [access].

Judge Lind

Knowingly requires acknowledging [gave?] knowledge to enemy.

Judge reads "That the accused, without proper authority, knowingly gave intelligence information to the enemy...".

How strict is that liability?

Defense (Coombs)

Accused was practically certain to receive intelligence. Defense argues that is negligence. When you put anything on Internet, anyone can see it on the Internet. If they were trying, where it is alleged that they gave it to 'media-like' organization.

You cannot come up with a theory that...when actual knowledge. The actual knowledge must mean he knowingly gave it to the enemy.

It is like arson. The Government has to prove you intended...you intentionally started the fire. When you look at 'knowing' definition even Government's own instruction. Proposed instruction [number] eight for 18 USC 641, also both instruction [number] eight, and [number] six definitions 'knowing'...done voluntarily or intentionally, not mistake or accident or other reason.

That is how you knowingly accomplish something.

Specific intent...must prove I intended to give document to you...'knowingly' for a ten year offense.

Judge Lind

Which instruction?

Defense (Coombs)

I mistook voluntarily and intention. So, if Government choses to go forward, Government wants to argue they can say that enemy can obtain information. That is a negligence mens rea.

Judge Lind

[missed]

Defense (Coombs)

You do not have the ability to show knowledge...by giving it to this person, this enemy, and this enemy.

If they had proof of...delivered...avoided. Not just simple aspect of educating public, the enemy...if i know that I leave my keys in my car, but that doesn't mean...

Judge Lind

Accused has to be thinking of dealing with enemy...

Defense (Coombs)

Would not try to convince specific intent, but that they intended to engage the enemy. So, if you speak to enemy. 104 also covers communication with enemy. So, there must be some proof you intended to do... The ACLU talk about the same problem, if knowing doesn't involve intention, then it presents a constitutional problem, example of a Specialist versus Rumsfeld.

['Our vehicles are not armored,' said Specialist Thomas Wilson, an airplane mechanic with the Tennessee Army National Guard. 'We're digging pieces of rusted scrap metal and compromised ballistic glass that's already been shot up . . . to put on our vehicles to take into combat. We do not have proper vehicles to carry with us north.' The soldier's question -- and Rumsfeld's now infamous response that 'you go to war with the army you have, not the army you might want or wish to have' -- were front-page news around the world. ]

[Specialist says] 'We don't have the right [armor]' and Rumsfeld says, 'you go to war with the army you have, not the army you might want or wish to have...' Clearly is the enemy knows we are not [properly equipped, armored, etc.] Soldier says it in front of media. That no doubt...that soldier was not intending to provide that to enemy.

Government says all that is required is that the enemy was going to receive it.

Judge Lind

Interesting issue...mean? Aware the time you give...or should have been aware because of training?

Defense (Coombs)

Hindsight is negligence standard. That is where you second guess and we are gonna not go for that. 104 is intent with enemy.

Defense points to Military Commissions Act, alleged terrorist, even under the Military Commissions patterned after 104. They lay out that terrorist would have to intend to communicate with with enemy.

Judge Lind

Well, that is not exact...

Defense (Coombs)

Knowingly, intentionally, yes. Look at Military Commissions Act, [legislative?] history of military commissions...[in order to prove they] are in fact 'fair' have to prove 'knowingly' and 'intentionally'.

Judge Lind

[missed]

Defense (Coombs)

...must show your client was intending to communicate with enemy, because you can't show by negligence what you intended, don't care, but...

Judge Lind

What about using third party? Actual knowledge giving to a third party, you are intending enemy is gonna get it?

Defense (Coombs)

Yes. If I give information to you that you communicate with enemy. I think at that point...you can prove knowledge. There you could articulate...as alleged is WikiLeaks. WikiLeaks published, anyone could access, including enemy. You should have known WikiLeaks... Unless the Government is asserting that WikiLeaks is run my the enemy? If you take WikiLeaks out of WikiLeaks and put in Washington Post or New York Times, and New York Times published the information, have I knowingly given information to the enemy. But, a 104, no. In order to avoid panel look at this as '...when I give it to WikiLeaks, it would get to the enemy.' If we eliminate WikiLeaks...we would be fighting about intent. When you have a third party, needs to show intent. Could give it to WikiLeaks, just like if I give it to Washington Post of the New York Times.

Judge Lind

All prior cases, 'actual knowledge', no Court has addressed gap between negligence and actual recklessness...with inadvertent or [missed].

Defense (Coombs)

The latter. For death penalty you cannot have reckless standard. Don't think person found guilty of...our society values life more than that. If we are gonna take someone's life...unfortunate we are the test case through third party.

When you cannot show through...you have to show that is a dual intent, and that is to get the information to enemy with intent.

Judge Lind

...only definition defense requests?

Defense (Coombs)

Yes.

Judge Lind

...indirect means? Gave me pause to make indirect with intermediary.

Defense (Coombs)

Where for whatever reason I cannot get to the enemy, is through intermediary to get information to enemy. I don't believe thats states specific intent, that is giving information to enemy.

Judge Lind

Court is cognizant of constitutional issues, and will be very careful with instructions.

Defense (Coombs)

Thank you.

[COURT IN RECESS]

ALL RISE

Judge Lind

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

Prosecution (Morrow)

Government asks that you deny Defense Motion for Specific Instructions: The Specification of Charge I. For the most part, Government rests on brief. 'Knowledge' and 'indirect means' has already been fully litigated and decided. Government must prove 'knowingly' and not 'intentionally'.

Judge Lind

...does 'knowing' have 'intention'?

Prosecution (Morrow)

Government agrees knowing has intention language of 'knowing' for the purpose translates into 'specific intent'. Look at defense motion [regarding] Military Commissions, attachment.. 'wrongfully aided' Offense 26.

Judge Lind

In defense reply.

Prosecution (Morrow)

Original motion.

Judge Lind

Go ahead.

Prosecution (Morrow)

Defense failed to acknowledge 'wrongfully aided' intended to aid. Drafter...Government must prove specific intent. Government asks that 'intentional' be given an ordinary meaning. This Court ruled 104 general intent not specific intent. Government does not need to prove alleged gave to a third party. Government not alleging enemy uses the Internet.

Judge Lind

Actual knowledge can be satisfied by subjective...?

Prosecution (Morrow)

It is actual knowledge, it is 'knowledge' deliberate avoidance.

Judge Lind

Need knowing enemy was practically expected to receive?

Prosecution (Morrow)

We have evidence to show actual knowledge.

Judge Lind

What about reckless?

Prosecution (Morrow)

According to penal code, reckless is less serious.

Judge Lind

So, I should include?

Prosecution (Morrow)

Probably, there is...reckless is punishable by death...a sentinel, Article 113 [Misbehavior of sentinel or lookout]

Judge Lind

That offense doesn't have First Amendment [issues]?

Prosecution (Morrow)

No, your Honor.

Judge Lind

What about instructions for indirect means?

Prosecution (Morrow)

I believe that we rejected entire instruction, because that indicates he has specific intent. One of the things about instructions is parsing out, because they have to go in order.

Judge Lind

Alright, thank you Captain Morrow.

Judge Lind

[to defense] Okay questions?

Defense (Coombs)

Last sentence...normally you state fact after evidence, reason proffering it now. Government says they have deliberate evidence. We are not aware of it. So, they should proffer that. And, so we assume they are going to use his training. So, if it is, 'WikiLeaks is run by X, Y, and Z?' and he knew that there is no evidence that says. if there is some out there, that says that WikiLeaks is run by the enemy...?

Judge Lind

Mistake of fact...[missed]?

Defense (Coombs)

As the Court fashions would be helpful yo know what evidence?

Judge Lind

Instructions are not addressed in stone, because you don't know all the evidence. You could raise a [RCM] 917 motion.

Defense (Coombs)

Yes, your Honor.

Judge Lind

Anything else from Government?

Prosecution (Morrow)

[missed, but negative]

Judge Lind

As I work through briefs, I am going to come up with something you are expecting [or not expecting]. I will give it to you, and if you have specific objections [we can address them then].

The next part concerns instructions for Specification 1 of Charge II.

SPECIFICATION 1: 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.

Judge Lind

Appellate exhibit 174 is [?]. Government reply is appellate exhibit 190. Defense response is appellate exhibit 203. Appellate exhibit 159 is all Government proposed instructions.

Defense (Coombs)

[Defense] takes issue with some of the Government instructions. 'Wantonly' and 'wrongfully' as mens rea are the Government's proposed instructions [for Specification 1 of Charge II]. Defense requests Court takes 'wantonly' from Article III 111 [one hundred and eleven], Part IV, 137 [for or four?] 134. 'wantonly' more than 'reckless' ... more aggravated.

Judge Lind

Now, Government's definition of 'wanton' comes from BenchBook, any other offenses in paragraph 3-105-10 BenchBook, 'wantonly', but they leave out 'willfully' to extent, definition even got own provision, but not parsed. They believe no instruction needed.

Defense (Coombs)

They believe no instruction needed. As we say, you plead it, you own it. To not provide instructions is problematic. The difference, 'caused to be published' puts forward [?] straight forward. Other than proposing that, Government doesn't propose anything.

The third aspect is maximum punishment. Would you like to consider later?

Judge Lind

If members find one, but not another...

Defense (Coombs)

They pled and not and/or...

Judge Lind

[missed]

Defense (Coombs)

I would expect to see and/or. Normally you could prove either.

Judge Lind

[missed]

Defense (Coombs)

Yes, M'am.

Judge Lind

In the 'causing to be published', is is approximate?

Defense (Coombs)

There is an issue of control if it be published at all, even if you give to a new organization no guarantee that it would be published.

Judge Lind

Government?

Prosecution (Morrow)

Yes, your Honor. I don;t think a lot of dispute over 'wanton'.

Judge Lind

What about parsing?

Prosecution (Morrow)

We may have left off 'willfulness' ... then apologizing. Our initial object was that it may describe more aggravated necessarily the way we describe [it].

Judge Lind

So, does the Government object to taking the 'wanton' standard out?

Prosecution (Morrow)

No. Our main issue is 'knowing' and 'intentionally'. Our objection is act must be done 'knowingly' and 'willingly'. There is that language again.

Judge Lind

Both sides have...not all...irregular improper [Article] 134.

Prosecution (Morrow)

Which one is the third?

Judge Lind

'Not every act of publishing intelligence [brings] discredit upon armed forces.'

Prosecution (Morrow)

Yeah. Had that highlighted. We do not provide specific instruction. Based on facts, we should be allowed to alter that.

Judge Lind

That is fine. These are not set in stone.

Prosecution (Morrow)

But, based on...that pertains to specific instructions.

Judge Lind

Questionnaire asked for that...and then schedule. This is good. Time to recess and pick up instructions tomorrow?

Defense (Coombs)

Yes, your Honor.

Prosecution (Morrow)

Yes, your Honor.

Judge Lind

After you provide instructions, we will draft instructions, or additional...don't have to have additional session, but if there are particularized instruction objections, can be done.

[END OF DAY]

Other resources:

Update The day after original publication date of the full transcript, I added Coomb's statement "Unless the Government is asserting that WikiLeaks is run my the enemy?" which was stated right before Coombs brought up replacing WikiLeaks with the Washinton Post of the New York Times. See video update from Fort Meade for 16 July 2012.

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