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Transcript | US v Pfc. Manning, Article 39(a) Session, 06/08/12

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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."

This is a verbatim transcript of the Motion Hearing held on June 8, 2012 at Fort Meade, Maryland in US v Pfc. Manning.

  • Judge: Army Col. Denise Lind

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

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

ALL RISE.

Judge Lind

Please be seated. This Article 39(a) Session is called to order. Let the record reflect all parties present when the Court last recessed and again present in Court.

Alright the Court is prepared to rule on the Defense Motion to Dismiss Specification 2, 3, 5, 7, 9, 10, 11, 15 of Charge II. Before I do that I would like to go over some scheduling issues.

The parties and I met briefly in an RCM [Rules for Court Martial] 802 conference as I described earlier on the record. Pfc. Manning was going to meet with the lawyers to talk about logistics and scheduling issues with cases, and we discussed the current trial calendar as scheduled to go to trial in October.

Because we have some discovery issues still remaining to resolve, defense has requested additional time to prepare their case after receiving all the discovery.

We are meeting at the next Article 39(a) Session on Monday, the 25th of June at 13 hundred or one o'clock in the afternoon civilian time.

I have asked the parties to propose draft calendars to [indecipherable word] to the Court, so we can resolve that time probability of proceedings.

The July session that is currently scheduled will stay as is. The August session that is currently scheduled will stay as is.

What is in flux now is what is going to happen after August. There will probably be a similar September or October session based on the trial calendar - two weeks filing, two weeks to respond by the other side, and five days reply, and a week for the Court to consider everything that has been filed and everything that is at issue for that particular session.



Now, what that is leaving us with the likelihood of a trial probably taking place is either November or depending on discovery issues...how quickly we can get those resolved will be either in November or January. The parties and I discussed that it is probably not a good idea to have a trial of this length in December with all the holidays and that kind of thing going on, because of the issues of just breaking up the trial. Do both sides agree with that...that synopsis?

Defense (Coombs)

The defense does your Honor.

Prosecution (Fein)

Yes, your Honor.

Judge Lind

Does either side like to add anything?

Defense (Coombs)

No, you Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

Okay. 



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

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



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



FACTUAL FINDINGS



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



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



THE LAW



Void for vagueness.



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



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



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



THE LAW



Substantially over-broad.



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



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



ANALYSIS



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



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



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



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





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



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



ANALYSIS



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



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



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



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



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



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



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



ANALYSIS 


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



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



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



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



CONCLUSION



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

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

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



RULING



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

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



Now, I scheduled before of the trial calendar the proposed instructions from the parties are [?] be in the next round of motions, and that will be addressed by the Court in the July session.



Alright, the Court is going to need a recess of approximately, say, 20 minutes. Is there anything that we need to address before we recess the Court?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, you Honor.

Judge Lind

Alright. Court is in recess. We will reconvene at 10 minutes to 12.

ALL RISE.

ALL RISE.

Judge Lind

Please be seated. This Article 39(a) Session is called to order. Let the record reflect all parties present when the Court last recessed and again present in Court. 



Before we begin, I received a last night via email an addendum to the defense motion to compel discovery 2. So, is that elements test marked as a separate appellate exhibit...135?

[missed full response and responder]

Judge Lind

Okay. Would you like to describe the record presented?

Defense (Coombs)

Yes, your Honor. Based upon yesterday's testimony from the three Department of State witnesses. The defense used that testimony in order to not only underscore the existence of the various sub groups that the defense was trying to compel under 701(a)(6) and 701(a)(2); but also, the additional information that was captured from each of these witnesses in order to give the Government further specific notice as to what the defense is requesting. And so, within this memorandum we simply captured not only the testimony that we learned, but also the Government's obligation under the discovery rules.

Judge Lind

Alright, also...thank you.



Also, last night...I think this morning I received [?] by request an order from the Government granting a 30 day delay for looking at these records and reporting back to Court?

Prosecution (Fein)

Yes, your Honor.

Judge Lind

Alright, defense have you seen that order?

Defense (Coombs)

I don't believe so, your Honor, but it might have been just a specific one, your Honor.

Judge Lind

You probably just got it, because I got it right before we came on the record.

When we take a lunch break, if you would, please review that and lets discuss after that break if you have any objections to it.

Defense (Coombs)

Yes, your Honor.

Judge Lind

Now, my records for what we are going to litigate on the 25th of June at the next session.

I have on the calendar the Department of State 30 days, although I guess that won't be done quite yet...the...that wont be litigated until the July session, is that correct?

Prosecution (Fein)

Yes, your Honor.

Judge Lind

Okay.

So we have the trial calendar.

The due diligence request of the defense, and the supplemental brief that I am going to ask the parties to prepare for the motion by the Government that was filed to preclude actual damage.

Does either side have anything else that they have jotted down that we are going to litigate on the 25th [of June] for the ad hoc part of the Article 39(a) session?

Defense (Coombs)

Nothing from the defense, your Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

Alright. The Court is prepared to rule on the defense motion to dismiss Specification 13 and 14 of Charge II for failure to state and offense.

[BEGIN COURT RULING ON DEFENSE MOTION TO DISMISS SPECIFICATIONS 13 AND 14 OF CHARGE II FOR FAILURE TO STATE AND OFFENSE]



Defense moves the Court to dismiss Specification 13 and 14 of Charge II for failure to state an offense, because the Government has failed to [?] the accused's conduct, exceeded unauthorized access within the meaning of 18 United States Code (USC) Section 1030(a)(1). 



Government opposes.

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



1.) Specification 13 and 14 of Charge II, charge Pfc. Manning with violating 18 United States Code (USC) Section 1030(a)(1) and Article 134 UCMJ [Uniform Code of Military Justice]. 



2.) Specification 13 of Charge II alleges that the accused "did, at or near Contingency Operating Station Hammer, Iraq, between on or about 28 March 2010 and on or about 27 May 2010, having knowingly exceeded authorized access on a Secret Internet Protocol Router Network computer, and by means of such conduct having obtained information that has been determined by the United States government pursuant to an Executive Order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, to wit: more than seventy-five classified United States Department of State cables, willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted the said information, to a person not entitled to receive it, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation, in violation of 18 United States Code Section (USC) 1030(a) (1), 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."

3.) Specification 14 of the same Charge alleges that the accused "did, at or near Contingency Operating Station Hammer, Iraq, between on or about 15 February 2010 and on or about 18 February 2010, having knowingly exceeded authorized access on a Secret Internet Protocol Router Network computer, and by means of such conduct having obtained information that has been determined by the United States government pursuant to an Executive Order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, to wit: a classified Department of State cable titled "Reykjavik-13", willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted the said information, to a person not entitled to receive it, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation, in violation of 18 United States Code Section Code Section 1030(a) (1), 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."



3.) [not sure why this is No. 3 again.] Defense asserts that the Government theory at trial either that (1) Pfc. Manning exceeded authorized access when he allegedly accessed information for an improper purpose to give to someone not entitled to receive it or (2) Pfc. Manning exceeded authorized access when he allegedly accessed or disclosed information in contravention of the Army's Acceptable Use Policy (AUP). The Government asserted during oral argument that it will be presenting evidence in addition to the AUP to prove that the accused exceeded authorized access. 



4.) During the Article 32 investigation, Special Agent David Shaver from the United States Army Computer Crimes Investigative Unit testified that he examined the two Secret Internet Protocol Router Network (SIPRNet) computers used by the accused from approximately October 2009 through May 2010. Government quoting [?] pages 425-4[?]7. Special Agent David Shaver testified when logging into both computers the user is presented with a warning banner. (id. 434-435). 



5.) The warning banner states as follows: 



"You are accessing a U.S. Government (USG) Information System that is provided for USG-authorized use only. By using this IS (which includes any device attached to this IS), you consent to the following conditions:

The USG routinely intercepts and monitors communications on this IS for purposes including, but not limited to, penetration testing, COMSEC [communications security] monitoring, network operations and defense, personnel misconduct, law enforcement, and counterintelligence investigations.

At any time, the USG may inspect and seize data stored on this IS.

Communications using, or data stored on, this IS are not private, are subject to routine monitoring, interception, and search, and may be disclosed or used for any USG authorized purpose.

This IS includes security measures (e.g., authentication and access controls) to protect USG interests -- not for your personal benefit or privacy.

Notwithstanding the above, using this IS does not constitute consent to PM, LE, or CI investigative searching or monitoring of the content of privileged communications, or work product, related to personal representation or services by attorneys, psychotherapists, or clergy, and their assistants. Such communications and work product are private and confidential. See User Agreement for details." (Government enclosure two.)





6.) In January 2011, Special Agent Mark Mander US Army Computer Crimes Investigative Unit interviewed Captain Thomas Cherepko of Headquarters and Headquarters Company, 2nd Brigade Combat Team, 10th Mountain Division who the assistant S6 officer during the time the accused was stationed within Iraq. (Government enclosure five, page one.) Captain Cherepko stated a signed user agreement for each user was required to access SIPRNet, however, he could not locate a copy of the accused signed user agreement." (id.)



7.) Defense will not contest that Specification 13 and 14 allege every element that the offense charged 18 United States Code (USC) Section 1030(a)(1) and Article 134 UCMJ [United States Military Code of Justice]. Defense challenges the theory as [?] the Specification as deficient, so the challenge has been styled as a failure to state an offense in federal Courts under Federal Rules of Criminal Procedure 12 and what the Government theory is undisputed, the Government addresses [?] the charge prior to trial. See United States v. Nosal 2012 WL 1176119 (9th Cir. 2012)



THE LAW



Failure to state and offense.



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] 445, 447 (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. 



THE LAW

Computer Fraud and Abuse Act. (CFAA) 18 United States Code (USC) Section1030(a)(1)



1.) When an accused violates the Computer Fraud and Abuse Act when the accused "knowingly accessed a computer without authorization or exceeding authorized access, and by means of such conduct having obtained information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph y of section 11 of the Atomic Energy Act of 1954, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation, willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it" 18 United States Code (USC) Section 1030(a)(1) [?]



2.) 18 United States Code (USC) Section 1030(e)(6) defines the phrase "exceeds authorized access" to "access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter"



ANALYSIS



Statutory Interpretation.



1.) The parts of the defense motion is an interpretation of "exceeds unauthorized access" language of the CFAA. The defense argues that the Government failed to allege that "exceeded authorized access" was in the meaning of CFAA because he was authorized to access the SIPRNet and entitled to access the classified information in question. The Government has alleged in the specification that the accused "exceeded access". The Government further alleges [?] that will prove that the allege "exceeded authorized access" by the AUP and by other evidence. 



2.) United States v. Starr 51 MJ 528, 532 AFCCA [Air Force Court of Criminal Appeals] 1999. The Air Force Court of Criminal Appeals provided a method to resolve the legal meaning of the statute. The Court said: "It is the function of the legislature to make the laws and the duty of Judges to interpret them. 2A N. Singer, Sutherland Statutory Construction Section 45.[?]3 4th edition, 1984. Judges should interpret statutes so as to carry out the rule of the legislature. United States v. Dickenson 20 CMR 154, 165 CMA [Court of Military Appeals], 1955. Otherwise, they violate the principle of separation of powers. (Singer, supra 35.05)



If the words used in the statute convey a clear or definite meaning a court has no right to look for or impose a different meaning. (Dickenson 20 CMR 365). Thus to interpret statute we employ the following process: (1) [missed a few words] of the statute their ordinary meaning. if the terms are ambiguous, the inquiry is over. (2) If the operative terms in the statute are ambiguous then we examine the purpose of the statute, as well as the legislative history. And (3), if reasonable ambiguity still exists then we apply the rule of lenity and resolve the ambiguity in favor of the accused.



CFAA.



Ordinary meaning of the statute.



A discussed in further detail below, the terms "exceeds authorized access" has been subject to different interpretations under the US Circuit Courts of Appeal, thereby indicating that the statutory language is not clear and definite. Compare Nosal F3d. 2012 WL 1176119; United States v. John 597 F.3d 263 (5th Cir. 2010); and United States v. Rodriguez 628 F.3d 1258 (11th Cir. 2007). Therefore, because an ordinary meaning of the operative language is ambiguous, the Court must look to the purpose of the statute and the statutory history. Starr 51 MJ 532. 



CFAA.



Legislative History.



1.) CFAA was originally enacted in 1984. Act of October 12, 1984 Pub. L. No. 98-473, Sections 2101-2103, 98 Stat. 1837 2190-92. It's original version, Section 1030(a)(1) punished anyone who knowingly accesses a computer without authorization or having accessed a computer with authorization uses the opportunity such access provides for purposes to which such authorization does not extend; and by means of such conduct obtain information that has been determined by the United States Government to require protection against unauthorized disclosure for reasons of national defense or foreign relations with the intent or with reason to believe that such information so obtained is to be used for the injury of the United States or the advantage of any foreign nation." Section 212(a) 98 Stat. 2190 


2.) Two years later in 1986, Congress replaced the terms "or having accessed a computer with authorization uses the opportunity such access provides for purposes to which such authorization does not extend" with the term "or exceeds authorized access" Computer Fraud and Abuse Act of 1986 Pub. L. No. 99-474 Section 2(c) 100 Stat. 1213. As the Senate report from the 1986 bill explained, Section 2(c) substitutes "exceeds authorized access" for the more cumbersome phrase in the present 18 United States Code (USC) Section 1030(a)(1) and (2) "or having accessed a computer with authorization, uses the opportunity such access provides for purposes to which such authorization does not extent." The Committee intends this change to simplify the language of 18 United States Code 1030(a)(1) and (2), and the phrase exceeds authorized access is defines separately in section (2)(g) of the bill. S. REP. No. 99-432, at 4 (1986), reprinted in 1986 USCCAN 2479-2486.



3.) Additionally, Congress added to Section 1030 the definition of "exceeds authorized access" that is presently codified at Section 1030(e)(6), however, its intent to simplify the language [?], Congress changed the scope of the statute. Further, the legislative purpose of histories supports the plain meaning of the statute that Congress enacted the CFAA to deter the criminal element of using computer technology in future frauds. HHR Rep. No. 98-894, 4 (1984) Reprinted in 1984 USCCAN 3689-3690. As originally enacted the CFAA applied to a person who (1) normally accessed without authorization or (2) having accessed a computer with authorization uses the opportunity such access provides for purposes to which such authorization does not extend. Pub. L. No. 98-473 Section 2102 98 Stat. 2190-2191 (1984).



Congress amended the statute by replacing the [?] means of access with the phrase "exceeds authorized access" The [?] agrees with the amendment was simplify the language in 18 USC 1030(a)(1) and (2).

4.) In 1996 Congress enacted 18 United States Code (USC) Section 1030(a)(1) and clarified the differences between the CFAA and the Federal Espionage Statutes. Although there is considerable overlap between 18 United States Code (USC) Section 793(e) and 1030(a)(1) as amended by the NII [National Information Infrastructure ] Protection Act, the two statutes do not reach exactly the same conduct. 1030(a)(1) would target those persons who deliberately break into a computer, to obtain properly classified government secrets, and the try to peddle those secrets to others, including foreign governments. In other words, unlike existing espionage laws prohibiting the theft and peddling government secrets to [?] agents, 1030(a)(1) require proof that the individual knowingly used a computer without authority or in excess of authority for the purpose of attaining classified information. In this sense, the use of the computer that is being proscribed not the unauthorized possession of, access to, or control over the information itself. S. REP. No. 114-357, 6-6 (1996)



5.) Therefore an analysis of the legislative history of the CFAA and the phrase "exceeds authorized access" reveals that the statute is not meant to punish those who use a computer for an an improper purpose and violating the Government terms of use, but rather the statute is designed to criminalize electronic trespassers and computer hackers. Int'l Ass'n of Machinists and Aerospace Workers 390 F. Supp. 2d, 495 quoting Sherman & Co. v. Salton Maxim Housewares, Inc. 94 F. Supp. 2d 817, 820 (E.D. Mich. 2000) 



CFAA Case Law and Conflict Among the Circuits.



1.) In the Nosal III, 856, the appellant convinced its his former co-workers at his previous firm, Korn/Ferry, to help him establish a competing business. The former coworkers used a Korn/Ferry login credentials to download information from a confidential database. They then passed this information along to the appellant. The former coworkers were authorized to access the database and Korn/Ferry had a policy that forbade disclosing confidential information. The defendant was charged with violating 18 United States Code (USC) Section 1030(a)(4) for aiding and abetting Korn/Ferry employees in exceeding their authorized access with the intent to defraud. The appellant filed a motion to dismiss the CFAA charges arguing that the statute [?] only hackers, not individuals who access a computer with authorization, but then misused the misused information that they obtained by means of such access.



2.) The Court in Nosal III, 857 agreed with the appellant argument, and disagreed with the prosecution's attempt to make the CFAA into a expansive misappropriation statute, when it was originally created as in inside hacking statute. To support this conclusion, the Nosal III Court said the legislative purpose of the CFAA, Congress enacted the CFAA in 1984 primarily to address the growing problem of computer hacking recognizing that intentionally trespassing into someone else's computer files [missed a few words] information on how to break into that computer. S. Rep. No. 99-432, 9 (1986).



3.) The Nosal Court in the end held the terms "exceed authorized access" in CFAA and its defined by 18 United States Code (USC) 1030(e)(6) does not extend to violations of use restrictions. (id 863). Nosal III defines "exceeds authorized access" to apply to inside hackers or individuals who initial access to a computer is authorized but who accesses unauthorized information or files.



4.) The Nosal III Court, 862 also acknowledged that its ruling differed from previous decisions made by other circuits, namely United States v. John 597 F.3d 263 (5th Cir. 2010) exceeds authorized access occurred when the appellate violated her employers official policy by misusing the company's internal computer when she properly accessed the computer system and computer account information contained in it and provided the information to others who were able to infer fraudulent charges; and United States v. Rodriguez 628 F.3d 1258 (11th Cir. 2007) exceeds authorized access occurred when an appellant violate his agency's policy of only obtaining information from its database for official reasons by properly accessing the agency's computer system and obtained personal information for 17 different individuals for personal reasons. However, the Nosal III Court reasoned its sister circuits incorrectly looked at the culpable actions of the appellants, and did not consider the negative effects of its [?] definition of "exceeds authorized access" to include violations of corporate computer use restrictions or violations of duty of loyalty. Other decisions support Nosal III Court's narrow view for "exceeds authorized access". See Orbit One Commc'ns, Inc. v. Numerex Corp. 692 F. Supp. 2d 373, 385 (SDNY 2010); United States v. Aleynikov 737 F. Supp. 2d 173-192 (SDNY 2010); Diamond Power Int'l, Inc. v. Davidson 540 F. Supp. 2d 1322, 1343 (N.D. Ga. 2007); Shamrock Foods Co. v. Gast 535 F. Supp. 2d 962, 965 (D. Ariz. 2008); and Int'l Ass'n of Machinists & Aerospace Workers v. Werner-Masuda 390 F. Supp. 2d 479, 499 (D. Md. 2005).



RULE OF LENITY



1.) With truly ambiguous statutes military courts have consistently applied the rule of lenity. See United States v. Schelin 15 MJ 218, 220 (CMA [Court of Military Appeals] 1983); United States v. Cartwright 13 M.J. 174, 176 & n.4 (CMA [Court of Military Appeals] 1982); United States v. Inthavong 48 MJ, 628-630 (ACCA [Army Court of Criminal Appeals], 1998).



"[t]he rule of lenity, which is rooted in considerations of notice, requires courts to limit the reach of criminal statutes to the clear import of their text and construe any ambiguity against the government." United States v. Romm 455 F.3d 990, 1001 (9th Cir. 2006).





2.) When applying the rule of lenity in CFAA context the Ninth Circuit Nosal III Court stated, 863: 



"If Congress wants to incorporate misappropriation liability into the CFAA, it must speak more clearly. The rule of lenity requires "penal laws . . . to be construed strictly." United States v. Wiltberger, 18 US 76 (1820). "[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." Jones v. United States 529 US 858 (2000).





"This narrower interpretation is also a more sensible reading of the text and legislative history of a statute whose general purpose is to punish hacking - the circumvention of technological access barriers - not misappropriation of trade secrets - a subject Congress has dealt with elsewhere . . . . Therefore, we hold that 'exceeds authorized access' in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use."





CONCLUSIONS OF LAW



Failure to state and offense.



1.) The language of Specifications 13 and 14 of Charge II includes all the elements of the offense clearly informs the accused of the charge against which he must defend and protects the accused against double jeopardy. See King at 51 Footnote 2; Fosler at 229; Fleig at 445.



2.) Federal cases dismissing charges before evidence is presented due [?] so preceding trial. This Court has the power to do the same under RCM [Rules for Court Martial] 907(b)(1). Whether the Court should dismiss the Specifications before presentation of the evidence depends on whether the issue is capable of resolution without trial or the issue of guilt. In this case, the Government stated in oral argument it would present evidence in addition to the AUP. The Court does not find that the issue is capable of resolution prior to presentation of the evidence. Decisions appropriately decided after presentation of the evidence either as a motion for finding of not guilty under RCM 917 [Rules for Court Martial] or motion for finding the evidence is not legally sufficient. King 71 MJ 50; United States v. Griffith 27 MJ 42, (CMA [Court of Military Appeals] 1988).



3.) The language of the specifications states an offense.



CONCLUSIONS OF LAW



CFAA.



1.) Applying the rule of lenity, the Court will adopt a narrow meaning of "exceeds authorized access" under the CFAA and will instruct the fact finder that the term "exceeds authorized access" is limited to violations of restrictions on access to information and not restrictions on its use. The Court shall craft instructions for defining "exceeding authorized access" in Specifications 13 and 14 of Charge II using the language of the legislative history of 1996. 



2.) Should the Government not prove an element as alleged in the Specifications in accordance with the instructions given in accordance with the narrow view of Nosal III at the close of the evidence the Court shall entertain motions under RCM [Rules for Court Martial] 917 for findings of the evidence or for finding the evidence is not legally sufficient to sustain a guilty finding.



RULING



The defense motion to dismiss Specifications 13 and 14 of Charge II for failure to state an offense is denied. So ordered this 8th day of June 2012.



Is there anything else that we need to discuss with respect to this issue?

[END COURT RULING ON DEFENSE MOTION TO DISMISS SPECIFICATIONS 13 AND 14 OF CHARGE II FOR FAILURE TO STATE AND OFFENSE]

Defense (Coombs)

No, your Honor.

Prosecution (Morrow)

No, your Honor.

Judge Lind

Alright, and again instructions are scheduled for the next session. [?] prepare 1030(a)(1) instructions for the Court [?].

Defense (Coombs)

Yes, your Honor.

Prosecution (Fein)

Yes, your Honor.

Judge Lind

Okay. Alright, is this a good time to take a lunch break?

Defense (Coombs)

Yes, your Honor.

Prosecution (Fein)

Yes, your Honor.

Judge Lind

Okay. The Court is going to require, some significant time to...well [missed a few words] were going to get me the information I need to make a discovery ruling?

Prosecution (Fein)

Your Honor, we will give you an update in the next ten minutes after we go to recess.

Judge Lind

Alright. Why don't we do this? Let's...its 10:30 [am] ...

Prosecution (Fein)

[missed]

Judge Lind

Okay. If we could have on the record...15 hundred would that present any problems for you...

Prosecution (Fein)

No, your Honor.

Defense (Coombs)

No, your Honor. [missed a few words, essentially he had a flight to catch]

Judge Lind

[missed a few words] Let's try 14:30. Will that work for you?

Defense (Coombs)

Yes, your Honor.

Judge Lind

Court is in recess.

ALL RISE.

[EXCERPT FROM PRESS POOL]

Captain John Haberland, spokesman for the Military District of Washington (MDW) in Press Pool.

...civilian facility or military confinement.

Unknown

But they don't consider him in jail? They consider him in military confinement?

Captain John Haberland, spokesman for the Military District of Washington (MDW) in Press Pool.

Military confinement. That is like a term of art, but the practical effect. Jail. He is in jail.

Unknown

He's in a jail?

Captain John Haberland, spokesman for the Military District of Washington (MDW) in Press Pool.

Just like [missed a few words] he's in a jail.

Unknown

So to say it more accurately you would say, "He's in a jail"?

Captain John Haberland, spokesman for the Military District of Washington (MDW) in Press Pool.

I think "military confinement" is the most accurate, but...

Unknown

[Missed question]

Captain John Haberland, spokesman for the Military District of Washington (MDW) in Press Pool.

He stays in a civilian facility up here.

Unknown

What does that mean a "civilian facility"? [missed]

Captain John Haberland, spokesman for the Military District of Washington (MDW) in Press Pool.

You know, at like a jail.

Alexa O'Brien

Is it a prison or a jail? You are saying that Manning is held in a "civilian facility"...?

Captain John Haberland, spokesman for the Military District of Washington (MDW) in Press Pool.

I think "civilian facility"...but really it like a... [missed]. Luckily I have nothing to do with that.

[END EXCERPT FROM PRESS POOL]

ALL RISE.

Judge Lind

This Article 39(a) Session is called to order. Let the record reflect all parties present when the Court last recessed and again present in Court. 



For the record, counsel and I met for an RCM [Rules for Court Martial] 802 conference briefly, where the defense advised me of an issue that they intend to raise [missed a few words] the discussion [missed a few words].

Defense (Coombs)

Yes, your Honor. [missed a few words] with the Court's ruling on Appellate Exhibit 139 regarding the 1030 specifications.

The Court indicated that with regards to these specifications you would not dismiss these because at this point believe based upon what the Government stated in oral argument was not an issue that was capable of being resolved at trial on the issue of guilt.

The defense believes that the Government additional evidence is purely use based restriction, and therefore consistent with the Court's ruling this would not be a basis for a 1030 offense.

And, therefore, once we flesh out what the Government's actual evidence is we would see that this would in fact qualify as an issue that is capable of being resolved without the trial on the merits.

The defense intends to file a motion on 22 June for 16 through 20 July Article 39(a) in order to address this issue again fully and to again seek the dismissal of Specifications 13 and 14 of Charge II.

Judge Lind

Alright. Moving onto the trial calendar. Just a...as you are going forward with this motion just understand in my ruling there can be and this is why I..I ruled what I did...that think that this is going to be more appropriate for a resolution after the evidence comes in, because I don't necessarily see use and access as mutually exclusive.

So, that is where I am looking at it in my ruling. Just bear that in mind when you make these motions.

Defense (Coombs)

Yes, your Honor. We will keep with the legislative history of 1996 as well as the narrow from the Nosal III.

Judge Lind

Yes, and that is what I ruled, and that is how we will prepare the instructions...look at the legislative history and the narrow view...and then I guess I'll see when we proceed with the motion.

Defense (Coombs)

Thank you, your Honor.

Judge Lind

Government, anything?

Prosecution (Morrow)

Nothing, your Honor.

Judge Lind

Alright. Before I rule on the lesser included offenses (LIO) issue, has the defense had an opportunity to review the proposed order for the delaying the discovery with the Department of State confirmation?

Defense (Coombs)

We have, your Honor.

Judge Lind

Do you have any objection to it?

Defense (Coombs)

No, your Honor.

Judge Lind

Defense are you confident that the Government's factual findings establish a litany of documents? I assume it covers everything that you had in your addendum?

Defense (Coombs)

Yes, your Honor, and obviously in addition to that just their general requirements for 701(a)(6).

Judge Lind

Okay. [to Government] Any [missed]?

Prosecution (Fein)

Just, affirming that.

Judge Lind

Okay. In that case...I will go ahead an sign it and mark it as the next Appellate Exhibit in line. 



Alright. That would be Appellate Exhibit 132.

Alright the Court is prepared to rule on the defense and Government's motions for instructions on lesser included offenses (LIO).

[BEGIN COURT RULING ON DEFENSE AND GOVERNMENT MOTIONS FOR LESSER INCLUDED OFFENSES (LIO)]



Defense and Government moved the Court for instructions on lesser included offenses (LIO).

Each party opposes the other's motion at least in part.

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



FACTUAL FINDINGS



1.) The accused is charged with five specifications of violating a lawful regulation; one specification of aiding the enemy; one specification of conduct prejudicial to the good order and discipline, and service discrediting; and eight specifications of communicating classified information; five specifications of stealing or knowingly converting Government property; and two specifications of knowingly exceeding authorized access to a Government computer in violations of Article 92, 104, and 134 UCMJ [Uniform Code of Military Justice]; and United States Code, Sections 892, 104, and 934.

Specifically in Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II, the accused is charged with unauthorized possession and disclosure of information related to the national defense, in violation of 18 United States Code (USC) Section 793(e).

In Specifications 13 and 14 of Charge II, the accused is charged with knowingly exceeding authorized access [?] a Government computer in violation of 18 United States Code (USC) Section 1030(a)(1).

Specification 1 of Charge II charges Pfc. Manning with wrongfully and wantonly causing United States intelligence to be published on the Internet, having knowledge that the intelligence placed on the Internet is accessible to the enemy in violation of Article 134.

Finally, Specifications 4, 6, 12, and 16 of Charge II allege that the accused stole, purloined, or knowingly converted for his use or the of another a thing of value owned by the United States Government with a value over a thousand dollars in violation of 18 United States Code, Section 641. 



2.) In addition to these specifications alleged and the conduct describe [?] prejudicial to the good order and discipline of the armed forces, and is of a nature to bring discredit upon the armed forces in violation of Article 134.



3.) At the relevant time, Army Regulation [AR] 380-5 Department of the Army Information Security Program was in effect. The regulation is a punitive law or general order pursuant to paragraph 1-21. 



4.) As charged the elements of Specification 1 of Charge II are (1) that the accused wrongfully and wantonly cause to be published on the Internet intelligence belonging to the United States Government having knowledge that the intelligence published on the Internet is available to the enemy, and (2) is of a nature to bring discredit upon the Armed Forces. 



5.) As charged the elements of Specification 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II which alleges a violation of 18 USC Section 793(e) are (1) the accused had unauthorized possession of certain specified information (2) that the specified information related to the national defense (3) that the accused had reason to believe the information in question would be used to the injury of the United States or the advantage of any foreign nation (4) that the accused willfully communicated, delivered, transmitted, or caused to be communicated, delivered, or transmitted the information to any person not entitled to receive it; and (5) that such conduct is prejudicial to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.



6.) As charged the elements of Specification 13 and 14 of Charge II which allege a violation of 18 United Stated Code (USC) Section 1030(a)(1) are (1) the accused knowingly accessed a computer exceeding authorized access (2) by means determined by the United Stated Government by Executive Order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations (3) that the accused had reason to believe that the information obtained could be used to the injury of the United States or to the advantage of any foreign nation (4) that the accused willfully communicated, delivered, or transmitted or caused to be communicated, delivered, or transmitted the information to any person not entitled to receive it; and (5) that such conduct is prejudicial to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.



7.) As charged the elements of Specifications 4, 6, 8, 12, and 16 of Charge II which alleges a violation of Title 18 United States Code (USC) Section 641 are (1) that the records described in the specification belong to the United States Government (2) the records have a value in excess of $1000 dollars at the time alleged (3) that the accused did steal, purloin, or knowingly convert such records to his own use or the use of another (4) that the accused did so knowing the property was not his and with intent to deprive the Government of its use or benefit either temporarily or permanently and (5) that such conduct is prejudicial to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.



8.) The elements of an Article 92 UCMJ [Uniform Military Code of Justice] are (1) that a certain lawful general order or regulation was in effect (2) that the accused had a duty to obey it that order or regulation, and (3) that the accused failed to obey the order or regulation.



9.) Defense requests all LIO's that the defense agrees are [?] LIO's the parties agree upon (1) Specifications 2, 3, 16 of Charge II attempt. The parties agree that attempt could be a lesser included offense of all the [?] supported by the evidence (2) Specifications 4, 6, 8, 12, and 16 of Charge II 18 United States Code (USC) Section 641 property of the value of lesser than $100,000 [I think she made a mistake and meant $1000] the parties agree that this is an LIO. And,(3) Specifications 13 and 14 of Charge II 18 United States Code (USC) Section 1030(a)(1) clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 UCMJ, the parties agree that this is LIO.



LIO's in dispute.



1.) Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II 18 United States Code (USC) Section 793(e) Article 92 (1) [violates or fails to obey any lawful general order or regulation] UCMJ [Uniform Code of Military Justice] a violation of Army Regulation [AR] 380-5. Defense requests. Government opposes on the ground the elements of Article 92 (1) [violates or fails to obey any lawful general order or regulation] UCMJ [Uniform Code of Military Justice] are not the subset of 18 United States Code (USC) Section 793(e). 



2.) Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II United States Code, Section 793(e) clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 UCMJ [Uniform Code of Military Justice]. Government request. Defense opposes on the grounds that clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] violation must be charged as a violation of a lawful general order.



3.) Specification 1 of Charge II Article 134 clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces]; Article 92 (1) [violates or fails to obey any lawful general order or regulation] UCMJ [Uniform Code of Military Justice] a violation of Army Regulation [AR] 380-5. Defense request. The Government opposes on the grounds the elements of Article 92 (1) [violates or fails to obey any lawful general order or regulation] UCMJ [Uniform Code of Military Justice] are not a subset of the element of Article 134.



4.) Specifications 4, 6, 8, 12, and 16 of 18 United States Code (USC) Section 641 clauses clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 UCMJ [Uniform Code of Military Justice]. Government requests. Defense opposes based on pre-emption by Article 121 UCMJ [Uniform Code of Military Justice].



THE LAW



1.) The proper test for determining whether an offense constitutes a lesser included offense of another is the elements test Schmuck v. United States 489 U.S. 705, 716-717 (1989); United States v. Jones 68 MJ 465, 469-470 (CAAF 2010). Under the elements test "[o]ne offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the greater offense. For the lesser offense requires an element not required for the greater offense no instruction is to be given" Jones 68 MJ 469-470 quoting Schmuck 489 US 716 The Court was [missed two words] to Congressional and [missed] to ascertain the elements of an offense. id. 471.



2.) "The elements test is not required if the two offenses at issue employ identical statutory language, instead after applying the normal principles of statutory construction, the Court asks whether the elements of the alleged lesser included offense are a subset of the elements of the charged offense" United States v. Bonner 70 MJ 1, 2 (CAAF [Court of Appeals of the Armed Forces], 2011) The fact that there may be an alternative means of satisfying the element in a lesser included offense does not preclude it from being a lesser included offense. See United States v. Arriaga 70 MJ 51, 55 (CAAF [Court of Appeals of the Armed Forces], 2011). The charged language in the specifications determines which statutory variables are relevant for the purposes of a lesser included offense analysis. id. 55. When comparison is drawn between offenses, since offenses are statutorily defined by comparison as appropriately conducted by reference to the statutory elements of the offenses in question and not as the apparent relationship of approach would mandate. By reference of conduct proven at trial regardless of the statutory elements of the offenses in question. One element of an offense is not necessarily included in another, unless the element of the lesser offense are a subset of the elements of the charged offense. United Stated v. Medina 66 MJ 21, (CAAF [Court of Appeals of the Armed Forces], 2008).



3.) Regarding Article 134 of UCMJ [Uniform Code of Military Justice] in the Manual for Court Martial directs that the elements of an assimilated crime for offenses not capital are the elements as defined in the applicable law MCM Part IV, paragraph 60 b.

If the conduct in question is to be punished under clause (1) [that the accused did or failed to do certain acts] or (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 UCMJ [Uniform Code of Military Justice] the elements are two fold: (1) Specific actions the accused did or fail to do, and (2) that the accused's acts or omission were prejudicial to the good order or discipline or of the nature to bring discredit upon the armed forces. Clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] and (3) [conduct of a nature to bring discredit upon the armed forces] are alternative theories of prosecution under Article 134.

Clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] are lesser included offenses of clause (3) [conduct of a nature to bring discredit upon the armed forces], if the elements of clauses (1) and (2) are pled in the specification. United States v. Medina 66 MJ 21 (CAAF [Court of Appeals of the Armed Forces] 2008).



ANALYSIS



Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II 18 United Stated Code (USC) Section 793(e); Article 92 (1) UCMJ [Uniform Code of Military Justice]; violation of Army Regulation [AR] 380-5.



1.) The crime or offense not applicable that the Government assimilated by a clause (3) [conduct of a nature to bring discredit upon the armed forces], if the elements of clauses] of Article 134 in Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II, 18 United Stated Code (USC) Section 793(e) is generally applicable federal statute that is part of the criminal sanctions Congress crafted for espionage. As such, it is not founded upon the existence of a regulation of any of the military services, and Congress did not include a reference to such authority in establishing the offense found in 18 United States Code USC() Section 793(e). It is enough that the accused's possession of the specified information was "unauthorized". The statute does not require more.



2.) By the lawful general regulation such as the one issued in this case can serve as a basis for an accused possession of certain information being unauthorized. The plain language of the statute does not require the existence of such a regulation in [?] the offense. It is simply irrelevant under the statute what source of the accused's lack of authority for possessing the information was so long as the accused was without authority. Therefore it follows that the existence of a lawful general regulation is not necessarily included in violation of 18 United States Code (USC) Section 793(e).

3.) The fact the regulation in this case can serve as a basis for the lack of authority required in section 793(e) does not [?] the analysis. The specifications requested do not add anything to the statute that would import a requirement or a lawful general regulation into the offense. Indeed they are not permitted to do so for purposes of the defining the offense. MCM [Manual for Court Martial] Part IV, paragraph 60 b.; See United States v. Jones 68 MJ 471.



The statute does also not include the variable of specifications [missed a few words] Arriaga instead Section 793(e) specifies the exact conduct required to constitute an offense, and the conduct does not include a failure to obey a lawful general regulation even though violating a germane lawful general regulation would potentially result in the [?] of an offense under Section 793(e). To hold otherwise would be to return to the inherent relationship test of the CAAF [Court of Appeals of the Armed Forces] rejected in Jones. 



The second element of the proposed LIO of Article 92 (1) that the accused had a duty to obey a lawful general regulation is not a lesser included element of clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134. Prejudice to the good order and discipline and service discrediting conduct does not require that the accused had a duty to obey a lawful general regulation. 



Based on the elements as charged it is not impossible to prove 18 United Stated Code (USC) 793(e) without also proving a violation of the lawful general order. The defense request for instructions to the effect in violation of Article 92 UCMJ [Uniform Code of Military Justice] is a lesser included offense of the Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II is denied. 



Specification 1 of Charge II clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of 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) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134. 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) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] 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.



Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II, 18 United Stated Code (USC) Section 793(e) clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 UCMJ [Uniform Code of Military Justice] (1) under Medina the Court finds that the violations of clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 are lesser included offenses of clause (3) [conduct of a nature to bring discredit upon the armed forces] under Article 134, because clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] elements are pled in the specifications. 



The Government has not presented the Court with a brief addressing the defense argument that United States v. Borunda 67 MJ 607 (A.F. Ct. Crim. App. [Air Force Court of Criminal Appeals] 2009) precludes the clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] LIO. The Government may request a reconsideration upon the written filing addressing the issue.



Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II, 18 United States Code (USC) Section 793(e) clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 UCMJ [Uniform Code of Military Justice], under Medina, the Court finds that the violations of clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 are lesser included offenses of clause (3) [conduct of a nature to bring discredit upon the armed forces] of Article 134, because the clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] elements are pled in the specifications.

The Government has not presented the Court with a brief addressing the defense argument that United States v. Borunda 67 MJ 607 (A.F. Ct. Crim. App. [Air Force Court of Criminal Appeals] 2009) precludes the clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] LIO. Thus, the Court declines to instruct on the LIO. The Government may request a reconsideration upon the written filing addressing the issue.



Specifications 2, 3, 5, 7, 9, 10, 11, and 15, 18 United States Code (USC) Section 641 clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 UCMJ [Uniform Code of Military Justice], under Medina, the Court finds that clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 are lesser included offense of clause (3) [conduct of a nature to bring discredit upon the armed forces] of Article 134, because the clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] elements are pled in the specifications.

The Government has not presented the Court with a brief addressing the defense argument pre-empts the clause (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] LIO. Thus, the Court declines to instruct on the LIO. The Government may request a reconsideration upon the written filing addressing the issue.



RULING



Motions for LIO instructions by parties is granted in part, and denied in part. 



1.) The Court will instruct on attempt as an LIO if raised by the evidence for Specifications 2 through 16 of Charge II. The Court will instruct on property with value less than $1000 for Specifications 4, 6, 8, 12, and 16 of Charge II. The Court will instruct on clauses (1) [that the accused did or failed to do certain acts] and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134 as an LIO of Specifications 13 and 14 of Charge II. The Court will not instruct on the remaining LIO's.



So ordered this 8th day of June 2012.

[END COURT RULING ON DEFENSE AND GOVERNMENT MOTIONS FOR LESSER INCLUDED OFFENSES (LIO)]



Anything else we need to address with this issue?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

No, your Honor.

Judge Lind

Alright. The Court has received the evidence relating...evidence of...classified evidence that the Government has filed ex parte on what the Government intends to introduce and not introduce on sentencing relevant to the Court's discovery ruling.

The Court will consider that. Discovery ruling is not going to be filed today. The parties...we can do it one of two ways. I can do it and send it to you via email and we can put in on the record at the next session, which will be on the 25th of June or we can wait till the 25th of June. What do the parties have to say?

Defense (Coombs)

Defense would prefer the former.

Judge Lind

Meaning the 25th of June?

Defense (Coombs)

No, your Honor. Going ahead and send the ruling to the parties, and then do it on the record on the 25th.

Judge Lind

Okay, thank you. [missed a few words] [to Government] Yes?

Prosecution (Fein)

We agree with the defense, your Honor.

Judge Lind

Alright. [missed a few words] Alright. And that will also be with the [missed a few words]...there is one dealing with discovery and the ruling on the ex parte review of the supplement for the [CIA] WikiLeaks Task Force.

So both of those will be decided. Anything else we need to address before we recess the Court today?

Defense (Coombs)

No, your Honor.

Prosecution (Fein)

Your Honor, there is one additional issue. Appellate Exhibit 130, the Government had requested a sealing order because its Grand Jury testimony information.

Judge Lind

I have that sealing order. Did you send me a draft in Word [missed a few words]?

Prosecution (Fein)

Yes, your Honor. [missed a few words]

Judge Lind

Okay. I have that. At issue is if the parties wish to take a look at it, you are free to do so, I intend to make a few modifications to the order.

Prosecution (Fein)

[Missed a few words] technical parts to that.

Judge Lind

Alright. Well I have the order, but I intend to make a few modifications. I am going to do that this afternoon. It will be ready...the Government [missed a few words] terribly significant basically to the additional [?].

Prosecution (Fein)

Yes, your Honor.

Judge Lind

Anything else?

Prosecution (Fein)

No, your Honor.

Defense (Coombs)

No, your Honor.

Defense (Coombs)

Alright. Court is in recess. See you the 25th.

ALL RISE.

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