Transcript | US v Pfc. Manning, Appellate Exhibit 219, Court Ruling on Maximum Punishment for Lesser Included Offenses

UPDATE POST COURT-MARTIAL

United States v. Pfc.Manning was conducted in de facto secrecy. The public was not granted contemporaneous access to court filings or rulings during her trial. In addition to reporting on her trial, I transcribed the proceedings, reconstructed the censored appellate list, and un-redacted any publicly available documentation, in order to foster public comprehension of her unprecedented trial.

As a result of a lawsuit against the military judge and the Military District of Washington brought by the Center for Constitutional Rights, as well as my own FOIA requests and research, an official court record for US v. Pfc. Manning was released seven months after her trial. That record is not complete.

The official trial docket is published HERE and the entire collection of documents is text searchable at usvmanning.org.

*During the pretrial proceedings, court-martial and sentencing of Pfc. Manning, Chelsea requested to be identified as Bradley and addressed using the male pronoun. In a letter embargoed for August 22, 2013 Chelsea proclaimed that she is female and wished to be addressed from that moment forward as Chelsea E. Manning.

The following is the Court Ruling on Maximum Punishment for Lesser Included Offenses read into the Court record on 19 July 2012. Judge Lind read her ruling very quickly. I tried to capture as much detail as I could by hand.

...

Judge Lind

...Specification 1 of Charge II...Article 134 all three clauses for 18 USC 793(e); 18 USC 641; and 18 USC 1030(a)[(1?)] offenses.

...

...Actual Findings.

Included in or listed...RCM 1003(c)(2)(B)(i)

[RCM 1003(c)(2)(B)(i) relates to limits on punishment and reads

"(B) Offenses not listed Part IV.

(i) Included or related offenses. For an offense not listed in Part IV of this Manual which is included in or closely related to an offense listed therein the maximum punishment shall be that of the offense listed; however if an offense not listed is included in a listed offense, and is closely related to another or is equally closely related to two or more listed offenses, the maximum punishment shall be the same as the least severe of the listed offenses."]

...United States Code (USC) of Customs of Service...RCM 1003(c)(2)(B)(ii)

[RCM 1003(c)(2)(B)(ii) relates to limits on punishment and reads "(B) Offenses not listed Part IV. (ii) Not included or related offenses. An offense not listed in Part IV and not included in or closely related to any offense listed therein is punishable as authorized by the United States Code, or as authorized by the custom of the service. When the United States Code provides for confinement for a specified period or not more than a specified period the maximum punishment by court-martial shall include confinement for that period. If the period is 1 year or longer, the maximum punishment by court- martial also includes a dishonorable discharge and forfeiture of all pay and allowances; if 6 months or more, a bad-conduct discharge and forfeiture of all pay and allowances; if less than 6 months, forfeiture of two-thirds pay per month for the authorized period of confinement."]

...US v. Tenney [60 MJ 838 (N.M.Ct.Crim.App. 2005) regarding preemption doctrine]; US v. Sampson [Not certain from notes, but I believe this was 7 MJ 513 (ACMR 1979), regarding "overt act must be done with the specific intent to commit an offense under the UCMJ"]; US v. Hopkins [Not certain from notes, but I believe this was 56 MJ 393 (2002) regarding "instructions".]

[See 18 July 2012 oral arguments for maximum punishment for lesser included offenses to learn more about these cases and how they correspond to Judge Lind's ruling.]

3.) ...maximum punishment [regarding "an offense charged under Article 134...clauses 1 and 2, and not otherwise listed in the Manual for Courts Martial, United States pt. IV...may be determined by reference to the maximum punishment for violation of a federal statute that proscribes and criminalizes the same criminal conduct and mental state included in the specification."]... US v. Leonard, [63 MJ 398]

4.) ...Clause (1) and (2) does not include [conduct or] mens rea

["Thus, in contrast to Leonard, the charge and specification here does not 'include the conduct and mens rea proscribed by directly analogous federal criminal statutes.'"]

...cannot be criminal...not directly analogous

["An offense comprised of acts that cannot be criminally charged under the United States Code at all is neither 'directly analogous' nor 'essentially the same' as one that can be"]

...US v. Beaty [70 MJ 39]...

5.) ...Clause (1) and (2)...

[Not certain. "When charging under clauses (1) or (2) of Article 134, UCMJ, there is no requirement that the specification allege the elements of an offense using the verbatim language of a federal statute."]

...no maximum by customs of the service...

["Rather, when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the United States Code, and where there is no maximum punishment 'authorized by the custom of the service,' they are punishable as 'general' or 'simple' disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months."]

...US v. Beaty [70 MJ 39 at 45]...

...

...18 USC 641, 18 USC 793(e) 18 USC 1030(a)(1) [these are United States Code offenses listed in clause (3) of the Specifications 2 through 16 under] Article 134 [or Charge II]...

...

Judge Lind finds as follows:

1.) ...[For] Clauses (1) or (2) of Article 134...[missed].

a.) Clause (1) and (2) [of] 18 USC 641 offenses for Specifications 4, 6, 8, and 16 of Charge II [is closely related to ] Article 121, Larceny of military property. Maximum punishment for [18 USC 641 offenses Specifications 4, 6, 8, and 16 of Charge II] is 10 years, dishonorable discharge, and forfeiture of pay. [See also Appendix 12 of the Manual for Court Martials]

Clause (1) and (2) [of] 18 USC 641 offenses for Specifications 12 of Charge II [is closely related to ] Article 121, Larceny of non-military property. Maximum punishment for [18 USC 641 offenses Specifications 12 of Charge II] is 5 years, dishonorable discharge, and forfeiture of pay. [See also Appendix 12 of the Manual for Court Martials]

b.)

Clause (1) and (2) [of] 18 USC 793(e) offenses for Specifications 2, 3, 5, 7, 9, [not sure if 11 fell under this ruling], and 1030(a)(1) offenses for Specifications 13 and 14 of Charge II [is not closely related to any Article in Part IV of the Manual for Court Martial]. Clause (1) and (2) [of] 18 USC 793(e) offenses for Specifications 2, 3, 5, 7, 9, [not sure if 11 fell under this ruling] is directly analogous to 18 United States Code USC 793(e). Clause (1) and (2) of 1030(a)(1) offenses for Specifications 13 and 14 of Charge II is directly analogous to United States Code (USC) 1030(a)(1). Maximum punishment for Clause (1) and (2) [of] 18 USC 793(e) offenses for Specifications 2, 3, 5, 7, 9, [not sure if 11 fell under this ruling], and 1030(a)(1) offenses for Specifications 13 and 14 of Charge II is 10 years. [I may have missed dishonorable discharge and forfeiture of pay, since I did not note that.]

2.) Specification 1 of Charge II under Article 134 is not [closely related to any Article in Part IV of the Manual for Court Martial] and not analogous to a United States Code [statute]. [The Court then defaults to 'Customs of the Service'.] [The Court ruled that the 'Custom of the Service' for Specification 1 of Charge II under Article 134] is Article 92. Maximum punishment is 2 years, dishonorable discharge, and forfeiture of pay.

[Specification 1 of Charge II of Article 134 is:

In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, wrongfully and wantonly cause to be published on the internet intelligence belonging to the United States government, having knowledge that intelligence published on the internet is accessible to the enemy, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

Article 134 relates to offenses that are not listed in Part IV of the Manual for Court Martial. Specification 1 of Charge II under Article 134 is unique among the 16 charged offenses listed under Article 134 of Charge II, because it does not list a United States Code violation in clause (3). The other Specifications list either 18 USC 641, 18 USC 793(e), or 18 USC 1030(a)(1).

Rules for Court Martial (RCM) 1003 governs punishment. In her ruling, Judge Lind cites RCM 1003(c)(2)(B)(ii) for law governing the limits on punishment for offenses not listed in Part IV, that are not closely related to United States Code.

RCM 1003(c)(2)(B)(ii) reads:

(B) Offenses not listed Part IV.

(ii) Not included or related offenses. An offense not listed in Part IV and not included in or closely related to any offense listed therein is punishable as authorized by the United States Code, or as authorized by the custom of the service. When the United States Code provides for confinement for a specified period or not more than a specified period the maximum punishment by court-martial shall include confinement for that period. If the period is 1 year or longer, the maximum punishment by court martial also includes a dishonorable discharge and forfeiture of all pay and allowances; if 6 months or more, a bad-conduct discharge and forfeiture of all pay and allowances; if less than 6 months, forfeiture of two-thirds pay per month for the authorized period of confinement.

In oral arguments the Government argued that Specification 1 of Charge II for Article 134 was not closely related to any Article in Part IV, but most analogous with 50 USC 783 for the purposes of determining maximum punishment. The Government also argued that for the purposes of determining maximum punishment for Specification 1 of Charge II was analogous to 18 USC 793 and:

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

Then, in oral argument the Court and Government appeared to conceded that Specification 1 of Charge II was not closely related to another Article listed in Part IV. Defense argued that the Court should look outside to the United States Code (USC) or 'Custom of the Service'. Defense argued that Specification 1 of Charge II was a 'made up' Specification and that the 'Custom of the Service' most appropriate for intelligence for determining maximum punishment was Article 92, namely failure to obey order or regulation, that order being Army regulation 380-5. Defense argued that "380-5 is 'custom' regarding intelligence."

See 18 July 2012 oral arguments for full details on the controversy surrounding Specification 1 of Charge II.

It bears mentioning that on 8 June 2012, the Court had ruled that it would not instruct on the lesser included offenses for Specification 1 of Charge II; .

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.

...

"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.]

What that appears to mean, is that the Court has yet to rule on maximum punishment for lesser included offenses for Specifications 1, 10, [maybe 11, see above, I was not sure if it fell under (1)(b) of the Court Ruling], 15, and 16.]

Alexa O'Brien Alexa O'Brien researches and writes about national security and law enforcement. Her work has been published in The New York Times, VICE News, The Cairo Review of Global Affairs, Guardian (UK), The Daily Beast, NY Daily News, and featured on the BBC, PBS, NPR, Democracy Now!, and Public Radio International. She was shortlisted for the 2013 Martha Gellhorn Prize for Journalism in the United Kingdom and listed in The Verge 50. In 2016, she worked at The Constitution Project in Washington, D.C. as a staff researcher and writer on an independent commission studying Oklahoma's death penalty. She also provided research support to scholars of the first cost study conducted on that state's capital punishment system.