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Transcript | Oral argument for proposed plea by substitution and exceptions, November 28, 2012

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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 portion of transcript was taken by hand from the press pool at Fort Meade, Maryland on November 28, 2012. It, therefore, may contain omissions or errors.

Judge: ...Government asserts that plead act which is Specification 11 of Charge II...

["In that Private First Class E. Manning, US Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 8 January 2010, having unauthorized possession of information relating to the national defense, to wit : a file named "BE22 PAX. zip" containing a video named "BE22 PAX.wmv", with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted, the said information, to a person not entitled to receive it, in violation of 18 US Code Section 793(e), 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."]

...is an entirely different act [accused pled to act in April]...than the accused [allegedly] communicated on proper plea... [the dates of which were] 1 November 2009 and on or about 8 January 2010.

Prosecution: Let me explain. Act alleged we believe in November to December 2009... we have the forensic evidence [for that time frame]... So he arrived in Iraq [on 1 November 2009] and he transmitted shortly after he arrived. [The Government alleges that the accused] also transmitted the full 15-6 part of Specification 10 of Charge II.

[which is "In that Private First Class E. Manning, US Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 11 April 2010 and on or about 27 May 2010, having unauthorized possession of information relating to the national defense, to wit: more than five classified records relating to a military operation in Farah Province, Afghanistan occurring on or about 4 May 2009, with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted, the said information, to a person not entitled to receive it, in violation of 18 U.S. Code Section 793(e), 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: So let me see if I understand. So, there are two alleged communications of the video.

Prosecution: And we can charge two separate times [We have the forensic evidence for both] We decided that is the way we went.

Their revised plea is a different act... but the allegation is that he transmitted in November. Different act, different time.

Defense: Under RCM 918 ...doesn't change nature of the offense...communicating...? [missed]

["Rule 918. Findings

(a) General findings. The general findings of a court-martial state whether the accused is guilty of each offense charged. If two or more accused are tried together, separate findings as to each shall be made.

(1) As to a specification. General findings as to a specification may be: guilty; not guilty of an offense as charged, but guilty of a named lesser included offense; guilty with exceptions, with or without sub­ stitutions, not guilty of the exceptions, but guilty of the substitutions, if any; not guilty only by reason of lack of mental responsibility; or, not guilty. Excep­ tions and substitutions may not be used to substan­ tially change the nature of the offense or to increase the seriousness of the offense or the maximum pun­ ishment for it."]

Judge: Two sexual assault 1 November and 1 April. [Can't charge as separate]?

Defense: In [US v. Allen ] case when Government says "on or about" they don't have to prove the date. [As in not an element]

Judge: Does [US v Lee?, 4th Circuit? The Judge said Lee. Lee came up in parties oral arguments for instructions for lesser included offenses] case include include LIO [missed]?

Defense: No. When you look at Lee case...is he on notice, and is he prejudiced...we are on notice... [missed]

Judge: If Pfc. Manning pleas to one date, is Government free to charge or prohibited by double jeopardy?

Defense: Defense position is only one transmission.

Judge: Only in April.

Defense: Correct.

[Missed line]

Prosecution: ...nature and identity [what the Government has to prove]...separate offense...[prove] identity, not nature.

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