Overview of Manning’s anticipated plea and court’s speedy trial ruling for February 26 to March 1, 2013 sessions

Overview of Manning’s anticipated plea and court’s speedy trial ruling for February 26 to March 1, 2013 sessions | US v Pfc. Manning

posted February 26, 2013

The next session of United States v. Private First Class Manning runs tomorrow, Tuesday, 26 February through Friday, 1 March.

At this weeks session we expect to hear:

Court’s ruling on the defense speedy trial motion;
Court’s ruling on the government’s motion to preclude over-classification evidence;
Court’s ruling on the defense’s revised, proposed plea to lesser included offenses for two Specifications, vis. 13 and 14 of Charge II, related to the 18 USC 1030(a)(1) charges for exceeding unauthorized access;
Manning formal plea to the court on the charges against him and his forum selection. Lead civilian defense counsel has already stated that Manning is elected to be tried by the military judge;
Oral arguments and/or the court ruling on government’s motion for close sessions during the upcoming trial.

Summary of Anticipated Plea

Based on prior court discussions and rulings in open sessions, we might anticipate that Manning will plead not guilty as charged to:

The Specification of Charge I for ‘Aiding the enemy’;
Specification 16, Charge II for ‘Stealing the US Forces – Iraq Microsoft Outlook / Share Point Exchange Server global address list’;
Specification 1, Charge III – ‘Violating a lawful general order by attempting to bypass network or information system security mechanisms’
Specification 2, Charge III – ‘Violating a lawful general order by adding unauthorized software [Wget] to SIPRNet computer
Specification 3, Charge III – ‘Violating a lawful general order by adding unauthorized software [Wget] to a SIPRNet computer’
Specification 4, Charge III – ‘Violating a lawful general order by using an information system in a manner other than its intended use’

See below for more details.

Based on prior court discussions and rulings in open sessions, one can anticipate that Manning will plead guilty as charged to:

Specification 5, Charge II – ‘Violating a lawful general order by wrongfully storing information’

Based on prior court discussions and rulings in open sessions, we might anticipate that Manning will plead guilty to lesser included offenses by striking the 18 USC 793(e) language for:

Specification 2, Charge II – ‘Unauthorized possession and willful communication Collateral Murder’
Specification 3, Charge II – ‘Unauthorized possession and willful communication CIA Red Cell Memos including, Afghanistan: Sustaining West European Support for the NATO-led Mission-Why Counting on Apathy Might Not Be Enough’
Specification 5, Charge II – ‘Unauthorized possession and willful communication +22 records from Iraq War Diary’
Specification 7, Charge II – ‘Unauthorized possession and willful communication +20 records Afghanistan War Diary’
Specification 9, Charge II – ‘Unauthorized possession and willful communication +3 records GTMO Files’
Specification 10, Charge II – ‘Unauthorized possession and willful communication 5 records related to Garani Massacre in Farah Province, Afghanistan’
Specification 15, Charge II – ‘Unauthorized possession and willful communication DoD Counterintelligence Report, WikiLeaks.org – An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?’

See below for more details.

We do not know how defense revised their proffered plea for Specification 1 of Charge II, ‘…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…,’ in light of the judge rejecting their proposed plea by exceptions and substitutions. See below for more details.

We do not know how defense revised their plea for the four specification related to 18 USC 641 of Charge II– namely Specifications 4, 6, 8, and 12 of Charge II for ‘steal, purloin, or knowingly convert to his use or the use of another Iraq War Logs; Afghan War Diary; GTMO files’ and Cablegate databases…,’ respectively– in light of the judge rejecting defense’s proposed pleas by exceptions and substitutions. See below for more details.

We do not know how defense revised their plea for Specification 11, Charge II for the unauthorized possession and willful communication of the Garani Video. The judge accepted the defense striking the 18 USC 793(e), espionage act language, but did not accept the defense proposal to plead to an April 2010 date and not an November 2009 date as charged. See below for more details.

We await the court’s ruling on the defense’s revised plea to lesser included offenses of Specifications 13 and 14 of Charge II after the court ruled that the proffered plea– which had struck the 1030(a)(1) language and replaced ‘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’ with ‘unauthorized possession’ and ‘willful communication’ of +75 U.S. State Department Cables and Reykjavik 13 respectively– substantially changed the nature of the misconduct. See below for more details.

Detail of Anticipated Plea

An accused has a right to know what criminal acts he is charged with and what punishment he can expect before pleading to any crime or lesser included element of crimes that are charged against him.

When the time came for the defense to file an anticipated plea with the court, which occurs prior to an accused entering a formal plea, Pfc. Manning proposed the following pleas for the court’s consideration. See plea and forum transcripts.

ANTICIPATED PROPOSED PLEA OF NOT GUILTY AS CHARGED

The Specification, Charge I – ‘Aiding the Enemy’

THE SPECIFICATION: In that Private First Class 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, without proper authority, knowingly give intelligence to the enemy, through indirect means

Specification 16, Charge II – ‘Stealing the US Forces – Iraq Microsoft Outlook / Share Point Exchange Server global address list’

SPECIFICATION 16: In that Private First Class E. Manning, US Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 11 May 2010 and on or about 27 May 2010, steal, purloin, or knowingly convert to his use or the use of another, a record or thing of value of the United States or of a department or agency thereof, to wit: the United States Forces – Iraq Microsoft Outlook / Share Point Exchange Server global address list belonging to the United States government, of a value of more than $1,000, in violation of 18 US Code Section 641, 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.

Specification 1, Charge III – ‘Violating a lawful general order by attempting to bypass network or information system security mechanisms’

SPECIFICATION 1: 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 March 2010, violate a lawful general regulation, to wit: paragraph 4-5(a) (4), Army Regulation 25-2, dated 24 October 2007, by attempting to bypass network or information system security mechanisms.

Specification 2, Charge III – ‘Violating a lawful general order by adding unauthorized software [Wget] to SIPRNet computer’

SPECIFICATION 2: In that Private First Class E. Manning, US Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 11 February 2010 and on or about 3 April 2010, violate a lawful general regulation, to wit: paragraph 4-5(a) (3), Army Regulation 25-2, dated 24 October 2007, by adding unauthorized software to a Secret Internet Protocol Router Network computer.

Specification 3, Charge III – ‘Violating a lawful general order by adding unauthorized software [Wget] to a SIPRNet computer’

SPECIFICATION 3: In that Private First Class E. Manning US Army, did, at or near Contingency Operating Station Hammer, Iraq, on or about 4 May 2010, violate a lawful general regulation, to wit: paragraph 4-5(a) (3), Army Regulation 25-2, dated 24 October 2007, by adding unauthorized software to a Secret Internet Protocol Router Network computer.

Specification 4, Charge III – ‘Violating a lawful general order by using an information system in a manner other than its intended use’

SPECIFICATION 4: In that Private First Class E. Manning, US Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 11 May 2010 and on or about 27 May 2010, violate a lawful general regulation, to wit: paragraph 4-5(a) (3), Army Regulation 25-2, dated 24 October 2007, by using an information system in a manner other than its intended purpose.

ANTICIPATED PROPOSED PLEA OF GUILTY AS CHARGED TO:

Specification 5, Charge II – ‘Violating a lawful general order by wrongfully storing information’

Manning proposed he might plead guilty to Specification 5, of Charge II as charged.

SPECIFICATION 5: In that Private First Class E. Manning, US Army, did, at or near Contingency Operating Station Hammer, Iraq, on divers occasions between on or about 1 November 2009 and on or about 27 May 2010, violate a lawful general regulation, to wit: paragraph 7-4, Army Regulation 380-5, dated 29 September 2000, by wrongfully storing classified information.

ANTICIPATED PROPOSED PLEA OF GUILTY TO LESSER INCLUDED OFFENSES THAT WERE RULED PROPER BY COURT

Manning proposed he might plead guilty to lesser included offenses for Specifications 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II, which as charged list a violation of 18 USC 793(e), which is part of the Espionage Act. Defense proposed to strike the clause (3) ‘espionage’ language from each specification. Striking specifically the language:

‘relating to the national defense’
‘with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation’; and
willfully ‘deliver, transmit, or cause to be communicated, delivered, or transmitted’; and ‘in violation of 18 U.S. Code Section 793(e).’

The Judge ruled that the proposed defense plea of guilty for lesser included offenses within Specifications 2, 3, 5, 7, 9, 10, and 15 of Charge II were proper pleas.

Special Note: Specification 11 of Charge II for the Garani video also lists a violation under 18 USC 793(e), but defense proposed an additional substitution for the date of the charged offenses, which was not accepted as proper by the court. I will get into that specification later in this post.

Directly below represents defense’s proposed plea to lesser included offenses by exceptions that were ruled proper pleas. As you can see the language and clause (3) federal code language for 18 USC 793(e) is struck out.

Specification 2, Charge II – ‘Unauthorized possession and willful communication Collateral Murder’

SPECIFICATION 2: In that Private First Class E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 15 February 2010 and on or about 5 April 2010, having unauthorized possession of information ~~relating to the national defense~~, to wit: a video file named “12 JUL 07 CZ ENGAGEMENT ZONE 30 GC Anyone.avi”, ~~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.

Specification 3, Charge II – ‘Unauthorized possession and willful communication CIA RED CELL SPECIAL MEMOS: Afghanistan: Sustaining West European Support for the NATO-led Mission-Why Counting on Apathy Might Not Be Enough’

SPECIFICATION 3: In that Private First Class E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 22 March 2010 and on or about 26 March 2010, having unauthorized possession of information ~~relating to the national defense~~, to wit: more than one classified memorandum produced by a United States government intelligence agency ~~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.

Specification 5, Charge II – ‘Unauthorized possession and willful communication +22 records from Iraq War Diary’

SPECIFICATION 5: In that Private First Class E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or about 9 February 2010, having unauthorized possession of information ~~relating to the national defense~~, to wit: more than twenty classified records from the Combined Information Data Network Exchange Iraq database, ~~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.

Specification 7, Charge II – ‘Unauthorized possession and willful communication +20 records Afghanistan War Diary’

SPECIFICATION 7: In that Private First Class E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or about 9 February 2010, having unauthorized possession of information ~~relating to the national defense~~, to wit : more than twenty classified records from the Combined Information Data Network Exchange Afghanistan database, ~~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.

Specification 9, Charge II – ‘Unauthorized possession and willful communication +3 records GTMO Files’

SPECIFICATION 9: In that Private First Class E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 8 March 2010 and on or about 27 May 2010, having unauthorized possession of information ~~relating to the national defense~~, to wit: more than three classified records from a United States Southern Command database, ~~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.

Specification 10, Charge II – ‘Unauthorized possession and willful communication 5 records related to Garani Massacre in Farah Province, Afghanistan’

SPECIFICATION 10: 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.

Specification 15, Charge II – ‘Unauthorized possession and willful communication DoD Counterintelligence Report, WikiLeaks.org – An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?’

SPECIFICATION 15: In that Private First Class E. Manning, US Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 15 February 2010 and on or about 15 March 2010, having unauthorized possession of information ~~relating to the national defense~~, to wit: a classified record produced by a United States Army intelligence organization, dated 18 March 2008, ~~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.

Finally, the proposed pleas of guilty for lesser included offenses for Specifications 2, 3, 5, 7, 9, 10, and 15 of Charge II, and Specification 5 of Charge III totals 16 years confinement, dishonorable discharge, forfeiture of pay, and demotion to Private E1.

PROPOSED PLEAS OF GUILTY TO LESSER INCLUDED OFFENSES THAT WERE RULED IMPROPER

Specification 1, Charge II – ‘Wrongfully gave information to WikiLeaks having knowledge that information published on the internet anyone with Internet would see…’

The language of “cause to be published on the internet intelligence belonging to the U.S. government, having knowledge that intelligence published on the internet is accessible to the enemy” is an unusual charge against Manning and dovetails right into aiding the enemy. Military prosecutors say, the ‘evil’ of the offense is unrelated to any current existing federal criminal statue or punitive article in the U.C.M.J. Coombs calls the charge a “creation of the government” and a “made up offense.” “There is an issue of control if it be published at all,” says Coombs, “even if you give [information] to a news organization [there’s] no guarantee that it would be published.”

While prosecutors say the offense is unlike any existing federal statute or U.C.M.J. punitive violation, they assert that the ‘seriousness’ of the charge is analogous to espionage. Similar language is found in the federal indictment of Sterling for espionage– for the unauthorized disclosure of national defense and classified information: “Defendant Sterling’s Attempt to Cause the Disclosure of Classified Information through the Publication of a Newspaper Article,” reads Sterling’s indictment; and, Sterling “did willfully cause to be communicated, delivered and transmitted the same information to any person of the general public not entitled to receive said information, including foreign adversaries, through the publication, distribution and delivery of Author A’s book”– who The Washington Post reports is The New York Times journalist and author, James Risen.

The term ’cause to be published’ means Manning doesn’t have to be the proximate publisher, but the question remains why military prosecutors avoided charging Manning with espionage, instead linking the language of ’cause to be published’ to the language of ‘aiding the enemy’. Jennifer Elsea, a legislative attorney who provides policy and legal analysis to committees and members of the U.S. Congress writes that aiding the enemy is “one of two offenses under the UCMJ that apply to ‘any person,’ rather than those subject to the UCMJ, “which raises the possibility that civilians who are not connected with the military could be similarly charged.” “Such a prosecution”, writes Elsea, “would likely be subject to constitutional challenge.”

The judge ruled that defense’s proposed plea of guilty for a lesser included offense of Specifications 1 of Charge II by striking the language ‘wrongfully and wantonly cause to be published on the internet intelligence belonging to the United States government’ replacing it with ‘wrongfully gave information to WikiLeaks’; and further, striking the language of ‘having knowledge that intelligence published on the internet is accessible to the enemy’ with ‘having knowledge that information published on the internet anyone with Internet would see’ was improper.

In that Private First Class 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~~ [gave information to WikiLeaks], having knowledge that ~~intelligence~~ [information] published on the internet is accessible to [anyone with Internet would see] ~~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.

The judge said ‘knowing WikiLeaks might publish…’ is not a subset of the criminal elements ‘wrongly’ and ‘wantonly’ and changes nature of the charged conduct.

Specification 11, Charge II – Unauthorized possession and willful communication of ‘Garani Video’

When the time came to notify the court of his anticipated plea, defense recently suggested that Manning may not plead guilty to espionage for the unclassified Garani video, but that he might plead guilty to unauthorized possession and willfully communicating the video in April 2010, and not November 2009 as charged. Defense had already suggested this in an early legal filing. Specifically, defense wrote that although prosecutors alleged two different date ranges for the disclosure of records relating to a military operation in the Farah Province, Afghanistan on or about 4 May 2009 and the Garani video between on or about 1 November 2009 and on or about 8 January 2010, “in reality the classified records and the video were disclosed at the same time on the same day, 11 April 2010.”

During recent court arguments concerning Manning’s proposed plea, the prosecution, however, refused to budge on a November 2009 offense date. Major Fein even alleged that the government had forensic evidence for both a November 2009 and an April 2010 transmission of the Garani video, and that prosecutors could still charged two separate criminal acts– but decided to only charge Manning once. The defense maintained that only one transmission’ occurred.

At Manning’s pretrial an agent from the Army’s Computer Crimes Investigative Unit (CCIU) testified that Adrian Lamo had informed them in July that he was aware of someone on the Internet that he did not know, who was allegedly attempting to decrypt the Garani video for WikiLeaks. The FBI, said the agent, was directing the investigation into Jason Katz, an employee at Brookhaven National Laboratory between February 2009 and March 2010, who was later fired for engaging in inappropriate computer activity.

The Garani video allegedly placed on Jason Katz’s work computer on December 15, 2009, however, did not forensically match the Garani video allegedly found on Manning’s workstation. “Was this the same video or a similar video to that seen on the .22 computer?,” Coombs asked the agent on cross examination. “No, Sir,” replied the agent. “Different video?” asked Coombs. “Different video, Sir,” said the agent.

The amended time line also dovetails with the start date of secret 2703(d) orders for Sonic, Google, Dynadot, and Twitter to turn over information about civilians under investigation by the Department of Justice secret grand jury impanelled in Alexandria, Virginia.

Most striking, given the lack of forensic evidence presented by the prosecution to the court or defense; in addition to the number and grievous nature of the charges against Manning; prosecutors are likely sticking to a November 2009 offense date in order to pressure Manning to plea out to bolster a conspiracy case against civilians being investigated by the Department of Justice, including, according to one agent at the pretrial, the “founders, owners, or managers of WikiLeaks”.

Defense proposed to strike the clause three 18 USC 793(e) language from the Specification 11 of Charge II, for the Garani Video, like Specifications 2, 3, 5, 7, 9, 10, and 15. Defense also sought to substitute the date of the offense. The judge ruled that the proposed plea was improper, because the date of the offense pled in Specification 11, was not the date charged by the Convening Authority, and therefore not a proper plea.

SPECIFICATION 11: 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] ~~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.

Specification 4, Charge II – ‘Removal of Iraq War Logs’ database from a T-SCIF for unauthorized purpose’

The Judge ruled that the proposed defense plea of guilty for lesser included offense of Specifications 4, 6, 8, and 12 of Charge II by striking the language ‘steal, purloin, or knowingly convert to his use or the use of another’ replacing it with ‘removal from a T-SCIF for unauthorized purpose’ was improper. The judge ruled the language of ‘removal from a T-SCIF for unauthorized purpose’ is not the pled element of ‘taking, purloining, or knowingly convert to his use or the use of another’ a clause (3) 18 USC 641 violation of Article 134. We have no further information how defense revised their plea in light of the judge’s ruling.

SPECIFICATION 4: In that Private First Class E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or about 5 January 2010, ~~steal, purloin, or knowingly convert to his use or the use of another~~ [removal from a T-SCIF for unauthorized purpose], a record or thing of value of the United States or of a department or agency thereof, to wit: the Combined Information Data Network Exchange Iraq database containing more than 380,000 records belonging to the United States government, of a value of more than $1,000, in violation of 18 U.S. Code Section 641, 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.

Specification 6, Charge II – ‘Removal of Afghan War Diary’ database from a T-SCIF for unauthorized purpose’

SPECIFICATION 6: In that Private First Class E. Manning, U.S . Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or about 8 January 2010, ~~steal, purloin, or knowingly convert to his use or the use of another~~ [removal from a T-SCIF for unauthorized purpose], a record or thing of value of the United States or of a department or agency thereof, to wit: the Combined Information Data Network Exchange Afghanistan database containing more than 90,000 records belonging to the United States government, of a value of more than $1,000, in violation of 18 U.S. Code Section 641, 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.

Specification 8, Charge II – ‘Removal of GTMO Files database from a T-SCIF for unauthorized purpose’

SPECIFICATION 8: In that Private First Class E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, on or about 8 March 2010, ~~steal, purloin, or knowingly convert to his use or the use of another~~ [removal from a T-SCIF for unauthorized purpose], a record or thing of value of the United States or of a department or agency thereof, to wit: a United States Southern Command database containing more than 700 records belonging to the United States government, of a value of more than $1,000, in violation of 18 U.S. Code Section 641, 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.

Specification 12, Charge II – ‘Removal of Cablegate database from a T-SCIF for unauthorized purpose’

SPECIFICATION 12: In that Private First Class E. Manning, US Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 28 March 2010 and on or about 4 May 2010, ~~steal, purloin, or knowingly convert to his use or the use of another~~ [removal from a T-SCIF for unauthorized purpose], a record or thing of value of the United States or of a department or agency thereof, to wit: the Department of State Net-Centric Diplomacy database containing more than 250,000 records belonging to the United States government, of a value of more than $1,000, in violation of 18 US Code Section 641, 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.

Specification 13 – ‘Unauthorized possession and willful communication of +75 U.S. State Department Cables.’

A common theme between the defense proposed pleas for the 18 USC 793(e) and the 18 USC 1030(a)(1)– Computer Fraud and Abuse Act– offenses of Specification 13 and 14 of Charge II is that the defense proposed to strike the federal statutory language in their anticipated plea leaving only that the ‘unauthorized possession’ and ‘willful communication’ of the documents as ‘prejudicial to good order and discipline and service-discrediting.’

The judge found that defense’s proposed plea for Specification 13 and 14 of Charge II was not acceptable because defense replaced ‘unauthorized computer use’ for ‘unauthorized possession’, which the Judge ruled substantially changed the nature of the misconduct.

SPECIFICATION 13: In that Private First Class E. Manning, US Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 28 March 2010 and on or about 27 May 2010, having [ unauthorized possession ] 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 US 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.

After the judge ruled the defense’s proposed pleas for Specification 13 and 14 of Charge II were improper, defense revised there pleas again. All that we know is that the defense’s new proffered plea for Specifications 13 and 14 of Charge II “is the same as for the lesser included offenses for the 793(e) lesser included offense specifications” namely “Army Regulation 380-5– dated 29 September 2000– Information Security Program establishes a custom of service penalizing disclosures of classified and sensitive information– therefore the maximum punishment would be reduction to the grade of E1; total forfeiture of all pay and allowances; confinement for two years; and a dishonorable discharge for each specification.” See Court colloquy on defense revised proposed plea and forum, January 9, 2013. We will hear this week if the court accepted their new revised pleas for Specification 13 and 14 of Charge II.

The Court had ruled on June 8, 2012 that it would “adopt a narrow meaning of ‘exceeds authorized access’ under the Computer Fraud and Abuse Act and will instruct that the term ‘exceeds authorized access’ is limited to violations of restrictions on access to information and not restrictions on its use. The Court said it would craft instructions for defining ‘exceeding authorized access’ in Specifications 13 and 14 of Charge II using the language of the legislative history of 1996.” For more information see my overview of the 18 USC 1030(a)(1) offenses.

Specification 14 – ‘Unauthorized possession and willful communication of classified Department of State cable titled Reykjavik-13’

A common theme between the defense proposed pleas for the 18 USC 793(e) and the 18 USC 1030(a)(1)– Computer Fraud and Abuse Act– offenses of Specification 13 and 14 of Charge II is that the defense proposed to strike the federal statutory language in their anticipated plea leaving only that the unauthorized possession and communication of the documents as ‘prejudicial to good order and discipline and service-discrediting.’

SPECIFICATION 14: In that Private First Class E. Manning, US Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 15 February 2010 and on or about 18 February 2010, having [ unauthorized possession ] 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 US 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.

After the judge ruled the defense’s proposed pleas for Specification 13 and 14 of Charge II were improper, defense revised there pleas again. All that we know is that the defense’s new proffered plea for Specifications 13 and 14 of Charge II “is the same as for the lesser included offenses for the 793(e) lesser included offense specifications” namely “Army Regulation 380-5– dated 29 September 2000– Information Security Program establishes a custom of service penalizing disclosures of classified and sensitive information– therefore the maximum punishment would be reduction to the grade of E1; total forfeiture of all pay and allowances; confinement for two years; and a dishonorable discharge for each specification.” See Court colloquy on defense revised proposed plea and forum, January 9, 2013. We will here this week if the court accepted their new revised pleas for Specification 13 and 14 of Charge II.

The Court had ruled on June 8, 2012 it would “adopt a narrow meaning of ‘exceeds authorized access’ under the Computer Fraud and Abuse Act and will instruct that the term ‘exceeds authorized access’ is limited to violations of restrictions on access to information and not restrictions on its use. The Court said it would craft instructions for defining ‘exceeding authorized access’ in Specifications 13 and 14 of Charge II using the language of the legislative history of 1996.” For more information see my overview of the 18 USC 1030(a)(1) offenses.

Other Resources

SUMMARY OF SPEEDY TRIAL

By the time of his trial on June 3, 2013, Manning will have been in pretrial confinement for 1,101 days– longer than any accused awaiting court-martial in the history of U.S. military law.

Generally, there are three aspects to speedy trial rights: constitutional; statutory; and court martial.

Defense has to provide evidence of prejudice by the government through a preponderance of evidence for the constitutional aspect of speedy trial. 5th Amendment and 6th Amendment speedy trial rights concern the time from pretrial to conviction.

The statutory aspect of the speedy trial rights for Article 10 attach at pretrial confinement or the referral of charges (10 USC 810). Article 10 speedy trial rights concern time from pretrial to final action by the Convening Authority after sentencing. At arraignment the judge is responsible for speedy trial rights of the accused under Article 10. For Article 10 ‘reasonable diligence’ has to have occur by the government or the remedy is dismissal with prejudice.

The Rules for Court-Martial (RCM) 707 are promulgated by the Executive and relate to the court martial aspect of speedy trial rights. RCM 707 is the ‘120 day clock’ from pretrial confinement to arraignment. The RCM 707 ‘120 day clock’ ends at arraignment minus ‘excludable delays’. An RCM 707 120 clock violation can occur with or without prejudice.

If the court rules that the speedy trial RCM ‘120 day’ clock has been violated without prejudice, the government can recharge. If the court rules that the RCM ‘120 day’ clock has been violated with prejudice the government cannot recharge.

Defense’s primary argument was that Manning’s RCM 707 and Article 10 speedy trial rights have been violated.