Criminal elements and definitions for Espionage: Collateral Murder, Iraq War Logs, Afghan War Diary, GTMO Files, USACIC Memo, CIA Red Cell Memos, Farah Docs, Garani Video | US v Pfc. Manning

Manning pled to a lesser included offense with substituted dates for seven Espionage Act offenses for 18 U.S.C. 793(e) charged under Article 134 for

  • Collateral Murder
  • Two CIA Red Cell Memos
  • 37 Significant Activity Reports from the CIDNE-Afghanistan database (Afghan War Logs)
  • 52 Significant Activity Reports from the CIDNE-Iraq database (Iraq War Diary)
  • 5 records from a SOUTHCOM database (GTMO Files)
  • Documents related to 2009 U.S. bombing in the Farah Province of Afghanistan
  • 2008 U.S. Army Counter Intelligence Center Memo on WikiLeaks

For more information on the U.S. Government's charge dates versus Manning's plea dates, go here.

Manning pled not guilty to the the Espionage Act charge related to the Garani Video.

Article 134 is reserved for crimes that do not exist under the regular punitive Articles of the Uniform Code of Military and which involve "disorders and neglects to the prejudice of good order and discipline in the armed forces" ; "conduct of a nature to bring discredit upon the armed forces"; and finally, include violations of federal law, which in this case is 18 U.S.C. 793(e), part of the Espionage Act.

Each offense as charged by the U.S. Government would carry 10 years maximum punishment. The maximum offense for each lesser included offense Manning pled to is 2 years maximum punishment.

Criminal Elements

The military judge outlined the elements for the 793(e) offenses as follows:

In order to find Manning guilty of the eight Espionage offenses charged against him by the U.S. Government, the military judge (Manning chose to be tried by military judge alone) must be convinced by legal and competent evidence beyond a reasonable doubt:

Element (1) That at or near Contingency Operating Station Hammer, Iraq:

Collateral Murder between on or about 15 February 2010 and on or about 5 April 2010 the accused without authorization had possession of, access to, or control over a video file "12 JUL 07 CZ ENGAGEMENT ZONE 30 GC Anyone.avi" (Specification 2< Charge II)

Two CIA Red Cell Memos between on or about 22 March 2010 and on or about 26 March 2010 the accused without authorization had possession of, access to, or control over more than one classified memorandum produced by a United States government intelligence agency (Specification 3, Charge II)

37 Significant Activity Reports from the CIDNE-Afghanistan database (Afghan War Logs) between on or about 31 December 2009 and on or about 9 February 2010, the accused without authorization had possession of, access to, or control over more than twenty classified records from the Combined Information Data Network Exchange Iraq database (Specification 5, Charge II)

52 Significant Activity Reports from the CIDNE-Iraq database (Iraq War Diary) between on or about 31 December 2009 and on or about 9 February 2010, the accused without authorization had possession of, access to, or control over more than twenty classified records from the Combined Information Data Network Exchange Afghanistan database (Specification 7, Charge II)

5 records from a SOUTHCOM database (GTMO Files) between on or about 8 March 2010 and on or about 27 May 2010, the accused without authorization had possession of, access to, or control over more than three classified records from a United States Southern Command database (Specification 9, Charge II)

Documents related to 2009 U.S. bombing in the Farah Province of Afghanistan between on or about 11 April 2010 and on or about 27 May 2010, the accused without authorization had possession of, access to, or control over more than five classified records relating to a military operation in Farah Province, Afghanistan occurring on or about 4 May 2009 (Specification 10, Charge II)

Garani Video between on or about 1 November 2009 and on or about 8 January 2010, the accused without authorization had possession of, access to, or control over a file named "BE22 PAX. zip" containing a video named "BE22 PAX.wmv"; (Specification 11, Charge II)

2008 U.S. Army Counter Intelligence Center Memo on WikiLeaks between on or about 15 February 2010 and on or about 15 March 2010, the accused without authorization had possession of, access to, or control a classified record produced by a United States Army intelligence organization, dated 18 March 2008 (Specification 15, Charge II)

Common Elements

Element (2) That the classified records, memorandum, videos, and files described in element (1) of each Specification under 18 U.S.C. 793(e) was information related to the national defense.

Element (3) The accused had reason to believe that the classified records, memorandum, videos, and files described in element (1) of each Specification under 18 U.S.C. 793(e) could be used to the injury of the United States or the advantage of any foreign nation.

Element (4) The accused willfully communicated, delivered, or transmitted or attempted or caused to be communicated, delivered, or transmitted, the above material to any person not authorized to receive it.

Element (5) At the time 18 United States Code Section 793(e) was in existence on the dates alleged in the specifications.

Element (6) Under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit on the armed forces.

Definitions

The military judge outlined the definitions she will use related to the 793(e) offenses as follows:

Willfully

An act is done willfully if it is done voluntarily and intentionally with specific intent to do something the law forbids-- that is with a bad purpose to disobey or disregard the law.

Possession

Possession is a commonly used and understood word. It means the act of having or holding property or the detention of property in one's power or command. Possession may mean actual physical possession or constructive possession. Constructive possession means having the ability to exercise dominion or control over an item. Possession inherently includes the power or authority to preclude control by others. It is possible, however, for more than one person to possess an item simultaneously as when several people share control of an item.

A person has unauthorized possession of documents, photographs, videos, or computer files when he possesses such information under circumstances or in a location that is contrary to law or regulation [missed a few words] of his employment.

National Defense

The term national defense is a broad term which refers to the United States military and naval establishments and to all related activities of national preparedness. To prove the documents, writings, photographs, videos, or information relate to the national defense there are two things the government must prove:

(1) That the disclosure of the material would be potentially damaging to the United States or might be useful to an enemy of the United States; and,

(2) That the material is closely held by the United States government and that the relevant government agency has sought to keep the information from the public generally and has not made the documents, photographs, videos, or computer files available to the general public. Where the information has been made public by the United States government and is found in sources lawfully available to the general public it does not relate to the national defense. Similarly, where the sources of information are lawfully available to the public, and the United States government has made no effort to guard such information; the information itself does not relate to the national defense.

In determining whether material is closely held, [the military judge] may consider whether it has been classified by appropriate authorities, and whether it remained classified on the date or dates pertinent to the charge sheet. [The military judge] may consider whether the information was classified or not in determining whether the information relates to the national defense. However, the fact that the information is designated as classified is not, in and of itself, demonstrate that the information relates to the national defense.

Reason to Believe

Reason to believe means that the accused knew facts from which he concluded or reasonably should have concluded that the information could be used for the prohibited purposes. In considering whether the accused had reason to believe the information could be used to the injury of the Unites States or the advantage of any foreign country, [the military judge] may consider the nature of the information involved. [The military judge] need not determine that the accused had reason to believe that the information would be used against the United States, only that it could be so used.

On April 10, 2013 the Court ruled that "In this case, the matter constituting the charged communications in specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II is tangible information. Actual physical matter, not oral communication, was communicated. The government elected to charge the communication under the 'information clause.' That clause carries with it the 'reason to believe' scienter requirement."

Injury of the United States or the Advantage of any Foreign Nation

Additionally, the likelihood of the information being used to the injury of the United States or the advantage of any foreign nation must not be remote, hypothetical, speculative, far-fetched, or fanciful. The government is not required to prove that the information obtained by the accused was in fact used to the injury of the United States or the advantage of any foreign nation. The government does not have to prove that the accused had reason to believe that this act could both injure the United States and be advantageous to any foreign country. The statute reads in the alternative. Also, the country to whose advantage the information could be used may not necessarily be an enemy of the United States. The statute does not distinguish between friend and enemy.

Whether the Person Who Received the Information is Entitled to Receive

Determining whether the person who received the information is entitled to receive it; [the military judge] may consider all the evidence introduced at trial including any evidence concerning the classification status of the information; and evidence related to law enforcement regulations governing the classification and declassification of national security information; its handling, use, and distribution. As well as any evidence related to the regulations governing the handling, use, and distribution of information obtained from a classified systems.

Prejudicial to Good Order and Discipline and Service Discrediting

Under prejudicial to good order and discipline is conduct which causes reasonably direct and obvious injury to good order and discipline.

Service discrediting conduct is conduct which tends to harm the reputation of the service or lower it in public esteem.

With respect to prejudice to good order and discipline, the law recognizes that almost any irregular or improper act on the part of the service member could be regarded as prejudicial and some indirect or remote sense. However, only those acts in which the prejudice is reasonably direct and palpable is punished under this Article.

With respect to service discrediting, the law recognizes that almost any irregular or improper act on the part of the service member could be regarded as service discrediting in some indirect or remote sense. However only those acts which would have a tendency to bring the service into disrepute or which tend to lower it in public esteem are punishable under this Article [134, a General Article, which is what these offenses are charge under].

Under some circumstances the accused conduct may not be prejudicial to good order and discipline, but none the less may be service discrediting...Depending on the circumstances the accused conduct can be prejudicial to good order and discipline but not service discrediting.

Manning's Lesser Included Plea to 7 Espionage Charges

As stated above, Manning pled guilty to a lesser included offense by exceptions and substitutions for seven Espionage Act charges. He pled not guilty to the one Espionage Act charge for the Garani video.

According to the military judge, Manning's plea to seven LIO admits to elements:

Element (1) that he had unauthorized possession of the video in Specification 2; more than one classified memorandum produced by a government agency in Specification 3; more than 20 classified records from the Combined Information Data Network Exchange Iraq database in Specification 5; more than 20 classified records from the Combined Information Data Network Exchange Afghanistan database for Specification 7; more than three classified records from a United States Southern Command database for Specification 9; more than five classified records relating to a military operation in Farah Province, Afghanistan occurring on or about 4 May 2009 for Specification 10; and a classified record produced by a United States intelligence organization dated 18 March 2008 for Specification 15.

Element (4) for all specifications except Specification 11 for the Garani video that he willfully communicated the above material to a person not authorized to receive it.

Element (6) for all specification except Specification 11 that under the circumstances his conduct is to the prejudice to the good order and discipline in the Armed Forces or of a nature to bring discredit upon the armed forces.

Greater Offense for Manning's Plea to 7 LIO

There are only two elements that the government would have to prove beyond a reasonable doubt to find Manning guilty of the greater offense in violation of 18 US.C. Section 793(e) for the seven LIO that Manning pled to:

Element (2) that the classified records, memorandum, videos, and files described in each specification was information related to the national defense.

Element (3) that the accused had reason to believe the classified records, memorandum, videos, and files described for each specification could be used to the injury of the United States or the advantage of any foreign nation.

The military judge also took judicial notice of the statute for 18 U.S.C. 793(e) and so the military prosecutor do not have to prove further element (5) that at the time of the offenses 18 United States Code Section 793(e) was in existence on the dates of the 8 19 U.S.C. 793(e) Specifications.

That leaves only elements (2) and (3) for

  • Collateral Murder
  • Two CIA Red Cell Memos
  • 37 Significant Activity Reports from the CIDNE-Afghanistan database (Afghan War Logs)
  • 52 Significant Activity Reports from the CIDNE-Iraq database (Iraq War Diary)
  • 5 records from a SOUTHCOM database (GTMO Files)
  • Documents related to 2009 U.S. bombing in the Farah Province of Afghanistan
  • 2008 U.S. Army Counter Intelligence Center Memo on WikiLeaks

Again, Manning pled not guilty to the the Espionage Act charge related to the Garani Video. It was the only charge under the Espionage Act that he did not plead to an LIO. For more information on the importance of this charge in the U.S. Government's magnum case, read this.

Garani Video

So, Manning pled not guilty to the Garani Video. The Judge took judicial notice of the statute for 18 U.S.C. 793(e) and so the military prosecutors have already established element (5) that at the time 18 United States Code Section 793(e) was in existence on the dates alleged.

USG Must Prove for Garani Video

The military prosecution must prove to convict Manning on the greater offense:

Element (1) that between on or about 1 November 2009 and on or about 8 January 2010, the accused without authorization had possession of, access to, or control over a file named "BE22 PAX. zip" containing a video named "BE22 PAX.wmv"

Element (2) classified records, memorandum, videos, and files described was information related to the national defense.

Element (3) The accused had reason to believe that the classified records, memorandum, videos, and files described could be used to the injury of the United States or the advantage of any foreign nation.

Element (4) The accused willfully communicated, delivered, or transmitted or attempted or caused to be communicated, delivered, or transmitted, the above material to any person not authorized to receive it.

Element (6) Under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit on the armed forces.

Alexa O'Brien Alexa O'Brien researches and writes about national security. Her work has been published in VICE News, The Cairo Review of Global Affairs, Guardian UK, Salon, The Daily Beast, and featured on the BBC, PBS Frontline, On The Media, Democracy Now!, and Public Radio International. In 2013, she was shortlisted for the Martha Gellhorn Prize for Journalism in the UK and listed in The Verge 50..