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."
At the October 17, 2012 Article 39(a) Session of United States v. Pfc. Manning, the public learned that defense counsel had submitted Pfc. Manning's plea and forum to the Court, referring to both the accused's statement of guilt or innocence per elements, specifications, or charges, as well as the type of court martial he would choose.
According to a statement released by his lead civilian counsel the same day, Pfc. Manning "elected to be tried by Military Judge." David Coombs further clarified that:
PFC Manning has offered to plead guilty to various offenses through a process known as 'pleading by exceptions and substitutions.' To clarify, PFC Manning is not pleading guilty to the specifications as charged by the Government. Rather, PFC Manning is attempting to accept responsibility for offenses that are encapsulated within, or are a subset of, the charged offenses. The Court will consider whether this is a permissible plea.
PFC Manning is not submitting a plea as part of an agreement or deal with the Government. Further, the Government does not need to agree to PFC Manning's plea; the Court simply has to determine that the plea is legally permissible. If the Court allows PFC Manning to plead guilty by exceptions and substitutions, the Government may still elect to prove up the charged offenses. Pleading by exceptions and substitutions, in other words, does not change the offenses with which PFC Manning has been charged and for which he is scheduled to stand trial.
The following exchange concerning the plea and forum took place in Court on November 7, 2012. The transcript was taken by hand, may contain omissions or errors:
Judge Lind: Defense filed a plea and forum at the last Article 39(a). They have supplemented [that filing]...
Defense (Coombs): Appellate exhibit 342 is the plea and forum. [In that submission my client] accepted responsibility for certain charges and would plead to lesser included offenses within the charge sheet.
Defense [then] revised [their submission]. [Appellate exhibit 360 was the supplement].
The Court, Government, and defense then met in an RCM [Rules for Court Martial] 802 [telephonic conference] to lay out specifications he would [subjunctive tense] plead to by exceptions and substitutions. [emphasis added]
Judge Lind: On 25 October 2012...[transcriber did not notate what this was]... Appellate exhibit 361.
On 26 October 2012 Court issued a clarification on the Court's 19 July 2012 ruling, [which was] appellate exhibit 219.
The appellate exhibit for the [Court's] clarification is 366.
Defense responded to certain questions. Defense response is [appellate exhibit] 375.
Government has a time period before they respond.
Based on the submissions...the [Court's] 19 July 2012 ruling on maximum punishment for Specification 1 of Charge II, 18 USC 641, 18 USC 793(e), and 18 USC 1030(a)(1)... [the ruling] never considered [maximum punishment for] clause (1) and (2) LIO [lesser included offenses].
On 23 October  defense revised their plea and forum...offers pleas based on residual elements. [emphasis added]
...Defense emailed the Court. ...19 July 2012 Court Order...misplaced...does not address [clause] (1) and (2) residual elements.
On 18 October  the Court...suspense...for proper plea and maximum punishment.
5 November [2012 defense] filing.
16 November  response.
23 November  reply.
On 27 November 2012 to 2 December 2012 the Court will address:
(1) Is the plea the proper LIO or is it an amendment? US v. Morton (2010);
(2) Assuming plea is acceptable [to the] the Convening Authority what is the maximum punishment? US v. Beaty (2011)
Court has the defense filing, and the Court will address proffered pleas.[emphasis added]
The Court's remarks on November 7, 2012 above, concerned an interrogatory and clarification with defense regarding lesser included offenses and maximum punishment for Clause (1) and (2) of Article 134 or Charge II.
which the Judge's July 19, 2012 ruling on maximum punishment for lesser included offenses, did not touch. The Court is trying to determine if whatever defense is proffering to plea by 'exceptions and substitutions' is appropriate and what the maximum punishment for those pled elements would be.
On July 19, 2012, the Court ruled on maximum punishment for lesser included offenses for all Article 134 offenses except Specifications 1, 10, [maybe 11, see ruling for clarification], 15, and 16.
In the November 7, 2012 exchange, Judge Lind states "[the ruling] never considered [maximum punishment for] clause (1) and (2) LIO [lesser included offenses]," and from an exchange with defense below on July 18, 2012, appears to refer to 'subsets' of charged offenses.
In criminal law, a lesser included offense, refers to "a crime the elements of which coincide with the elements of a more serious crime, from which the prosecutor is therefore precluded from separately charging a criminal defendant."
According to the Criminal Law Desk Book:
...due process principle of fair notice mandates that an the accused know for what offense and under what legal theory he may be convicted. A lesser included offense meets this notice requirement if it is a subset of the greater offense alleged. See United States v. Medina, 66 M.J. 21 (CAAF 2008); United States v. Miller, 67 M.J. 385 (CAAF 2009); United States v. Jones, 68 M.J. 465 (CAAF 2010).
Specifications 2 through 16 of Article 134 are constructed as follows.
- Clause (1) of Article 134 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces.
- Clause (2) involves conduct of a nature to bring discredit upon the armed forces.
- Finally Clause (3) offenses involve noncapital crimes or offenses which violate federal law. In this trial those Specifications refer to clause (3) as 18 USC 641, 793(e), and 1030(a)(1).
Specification 1 of Charge II under Article 134 is unique, because its clause (3) does not list a United States Code (USC) violation.
The element of clause (1) is "[i]n 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 27 May 2010, wrongfully and wantonly cause to be published on the internet intelligence belonging to the United States government."
The element of clause (2) of that charge is "having knowledge that intelligence published on the internet is accessible to the enemy."
Finally, clause (3) specifically is "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." See the March 1, 2011 charge sheet.
Defense argued in Court on July 18, 2012 - regarding maximum punishment for lesser included offenses - that Specification 1 of Charge II or Article 134 was a "made up offense."
In considering maximum punishment for Specification 1 of Charge II, an Article 134 offense (which means it is not listed under Part IV of the Manual for Court Martial [MCM]), the Court appears to have ruled according to defense's oral argument, ordering on July 19, 2012 that Specification 1 of Charge II was also neither closely related to Articles listed under Part IV of the MCM, or analogous to a violation of the United States Code. The Judge appears to then default to "Customs of the Service" as outlined by Rules for Court Martial 1003(c)(2)(B)(ii), as defense had proposed.
Further, the following exchange regarding 'exceptions' and 'subsets' of US code violations for 18 USC 641, 793(e), and 1030(a)(1) took place in the July 18, 2012 oral arguments for maximum punishment for lesser included offenses for Article 134 offenses.
...[18 USC] 1030 and ["791" but am not sure if that is correct, since Manning is charged with 793(e)].
...by exceptions...my ruling may not have. I ruled no subsets of 641 and 793(e).
Only if they find by exceptions?
...hard part of LIO for [18 USC] 1030.
Correct. LIO's for [18 USC] 1030 only exist...scratching out language from statute. There was one subset to [18 USC] 641, [i.e.] lesser than $1000. [emphasis added]
6 8, 2012, Judge Lind ruled on defense and Government motions for instructions for Lesser Included Offenses (LIO).
It should be noted that defense counsel has sought to dismiss Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II or the 793(e) espionage charges for being unconstitutionally vague or over-broad. The Court denied the defense motion by arguing that "Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II" are not unconstitutionally vague or substantially over-broad, because "the Court will provide appropriate instructions and fully inform the fact finder of the elements of the defense and its definitions," thereby lessening the broad sweep of the Espionage Act.
Defense has also sought to dismiss 13 and 14 of Charge II related to the 1030(a)(1) charges for failure to state an offense. The Court denied the defense motion, BUT ruled that it would "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.
The Government has charged Manning with unauthorized access based on his use of his access, namely by means of an Acceptable Use Policy (AUP) - which he may have signed - the Government apparently cannot find it; and Non Disclosure Agreements - Manning allegedly signed seven; and not because the Government alleges that Pfc. Manning bypassed technical restrictions (i.e. "hacked").
Captain Steven Lim, the Brigade S2, gave the analyst a link to Net Centric Diplomacy database via email with no password required in January 2010. Captain Lim testified, "I gave [the intelligence analysts a] link through email. Got from headquarters. They [headquarters] said pass along. Felt at time we were so focused on the ground, and needed bigger picture."
Judge Lind further ruled, if the Government doesn't pony up the evidence:
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.
The defense, however, is in the strategic posture of having its 'knees cut off' with the Court's deferred ruling on the Government motion to preclude actual harm on the merits. As Jeff Patterson notes, a plea by 'exceptions and substitutions' may allow defense to reintroduce actual harm into the merits portion of the trial.
On 12 April 2012, Defense filed a Response to Prosecution Motion to Preclude Reference to Actual Harm or Damage. Defense argued in part that, "The Government cites United States v. Morison, 844 F .2d 1057 (4th Cir. 1988) for the proposition that 'the government must only prove "that [the compromised information] was in fact potentially damaging."'(Government emphasis). The Government has failed to cite the more important part of the Morison holding:
...This means, as I assume we reaffirm today, that notwithstanding information may have been classified, the government must still be required to prove that it was in fact "potentially damaging . . . or useful," i.e., that the fact of classification is merely probative, not conclusive, on that issue, though it must be conclusive on the question of authority to possess or receive the information. This must be so to avoid converting the Espionage Act into the simple Government Secrets Act which Congress has refused to enact.
At the 19 July 2012 Article 39(a) Session the Judge ruled in part on the Government's Motion to Preclude the Defense from Mentioning Actual Damage on the Merits.
Lind ruled that actual damage was not probative to either the element of of Specification 1 of Charge II, "having knowledge that intelligence published on the internet is accessible to the enemy," or the element of charges for the Espionage Act, 18 USC 793(e), or unauthorized access, 18 USC 1030(a)(1), "...with reason to believe that such info could be used to the injury of the US or the advantage of any foreign nation" for Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II (emphasis added).
Judge Lind cited the following case law in her ruling. Rule 401. Scope of probative evidence in military commissions; Rule 403. Exclusion of probative evidence on grounds of prejudice, confusion, or waste of time ; Rule 410. Inadmissibility of pleas, plea discussions, and related statements; US v. White, 606 F.3d 144 (4 th Cir. 2010) concerning "a conviction for assault and battery in VA does not require 'physical force' as an element of the crime"; Rules for Court-Marital 703(b) Right to witnesses.; US v. Diaz concerning the 'mens rea requirement' of the Espionage Act. "'Willfulness,' in the context of 18 USC 793(e), arises not in the context of bad intent, but in the conscious choice to communicate covered information."
Judge Lind ruled that the elements of the relevant charges relate to a state "on or before" the alleged unauthorized disclosure, and that "what occurred after is not knowable." Judge Lind ruled that actual damage is "not knowable" to the Original Classification Authority, therefore actual damage is "not relevant to impeach to the Original Classification Authority." She deferred a final ruling of the Government Motion to Preclude Harm on the Merits, saying that actual harm or damage would not be included on the merits without the permission of the Court.
Famed NSA Whistleblower, Thomas Drake, himself acquitted of the same 18 USC 793(e) offenses charged against Pfc. Manning, told me on July 19, 2012, that the Judge may have deferred her ruling on the Government's motion to preclude harm, because of constitutional issues that she may be concerned will arise at sentencing if 'guilty mind' or intent is removed from the Espionage Act: "She has to look forward to sentencing. She has to consider what that would look like, and what is the basis for sentencing? That is where she is not independent. She can't go all the way to sentencing and then reverse...ex post facto. The merits could be quite relevant."
Her interpretation of lesser included offenses for Article 134 turned on her interpretation of core military case law and the Manual for Court Martial:
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) or (2) 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) and (2) and (3) are alternative theories of prosecution under Article 134.
Clauses (1) and (2) are lesser included offenses of clause (3), 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).
Regarding the instructions for lesser included offenses, Judge Lind also ruled on June
6 8, 2012:
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) and (2) of Article 134 as an LIO of Specifications 13 and 14 of Charge II. The Court will not instruct on the remaining LIO's.
A special note to the rights of the accused. Pfc. Manning has not pled anything. Should he withdraw this submission to the Court or redraft it, in theory it would be as if he never mentioned anything. An accused has a right to know what crime(s) he is charged with and what punishment he can expect before pleading to anything. Further, the Court must ensure the accused understands what he is pleading to and that he understand what the maximum punishment would be.
More will be revealed at the November 27 to December 2, 2012 Article 39(a) Sessions.
I added LIO [lesser included offenses] to the transcript on November 10, 2012. As in "[the ruling] never considered [maximum punishment for] clause (1) and (2) LIO [lesser included offenses]". Also added a segment previously bracketed out as < p > ... < / p >.
On November 26, 2012, I cleaned up the formatting, added links, corrected inadvertent misspellings from previous handwritten transcripts, and removed bracketed commentary on the Judge's June 8, 2012 ruling on Court Ruling on Government and defense motions for instructions for lesser included offenses. I also added segments from the July 18, 2012 oral arguments for maximum punishment for lesser included offenses, because they may give insight into defense strategy of pleading by exceptions and substitutions, per defense's exchange with Judge Lind. Finally, I added the July 19, 2012 ruling on maximum punishment for lesser included offenses, referred to by the Judge on November 7, 2012. I also added information about the Government's motion to preclude actual damage on the merits, oral arguments for that motion that occurred on July 18, 2012, and information about the Court's deferred ruling on that motion on July, 19, 2012.