Transcript | US v Pfc. Manning, Article 39(a) Session, 2/28/13, Providence Inquiry for Formal Plea

posted February 28, 2013

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.

This is a transcript of the Article 39(a) Providence Inquiry held on February 28, 2013 at Fort Meade, Maryland in US v Pfc. Manning. It may contain omissions or errors.

Judge: Army Col. Denise Lind
Prosecution: Captain Ashden Fein, Captain Joe Morrow, Captain Angel Overgaard
Defense: Mr. David Coombs,Captain Joshua Tooman, Major Thomas Hurley

Pfc. Manning

Yes, your Honor.

Judge Lind

Now if you are tried by court members, the members would vote by secret written ballot and two thirds of the members must agree before you can be found guilty of any offense.

If you were found guilty of– two thirds must also agree in voting on the sentence, and if that sentence includes confinement for more than then three-fourths of the members would have to agree.

Do you understand that?

Pfc. Manning

Yes, your Honor.

Judge Lind

You may also request to be tried by military judge alone– if your request is approved, there would be no court members and the military judge alone would decide whether you are guilty or not guilty and if you are found guilty, the military judge alone would determine your sentence.

Do you understand the difference between trial by members and trial by military judge alone?

Can you just for the record detail what convening order we are on? What the latest convening order is?

Prosecution (Fein)

Yes, Ma’am. We are currently operating under court martial convening order number one, dated 11 February 2013, Headquarters US Army, Military District of Washington.

Judge Lind

Alright. Is the accused ready to enter pleas?

Judge Lind

Pfc. Manning, Mr. Coombs will speak on your behalf.

Accused and counsel please rise.

Pfc. Manning, how do you plea– before receiving your plea, I advise you that any motions to dismiss or grant other appropriate relief should be made at this time.

Your defense counsel will speak for you.

Defense (Coombs)

Your Honor.

My client pleads as follows:

To ‘The Specification’ of Charge I and to Charge I, not guilty.

To Specification 1 of Charge II, not guilty.

To Specification 2 of Charge II, guilty except the words and figures ’15 February 2010 and 5 April 2010′ substituting therefore the words and figures ’14 February 2010 and 21 February 2010′. Further excepting the words ‘information relating to the national defense, to wit:’. Further excepting the words, ‘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’; substituting the words ‘did willfully communicate’. Further excepting the words and figures, ‘in violation of 18 US Code Section 793(e),’. To the excepted words and figures not guilty. To the substituted words and figures, guilty.

To Specification 3 of Charge II, guilty except the words and figures ’22 March 2010 and 26 March 2010′ substituting therefore the words and figures ’17 March 2010 and 22 March 2010′. Further excepting the words ‘information relating to the national defense, to wit:’. Further excepting the words, ‘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’; substituting the words ‘did willfully communicate’. Further excepting the words and figures, ‘in violation of 18 US Code Section 793(e),’. To the excepted words and figures, not guilty. To the substituted words and figures, guilty.

To Specification 4 of Charge II, not guilty.

To Specification 5 of Charge II, guilty except the words and figures ’31 December 2009 and 9 February 2010′ substituting therefore the words and figures ‘5 January 2010 and 3 February 2010’. Further excepting the words ‘information relating to the national defense, to wit:’. Further excepting the words, ‘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’; substituting the words ‘did willfully communicate’. Further excepting the words and figures, ‘in violation of 18 US Code Section 793(e),’. To the excepted words and figures, not guilty. To the substituted words and figures, guilty.

To Specification 6 of Charge II, not guilty.

To Specification 7 of Charge II, guilty except the words and figures ’31 December 2009 and 9 February 2010′ substituting therefore the words and figures ‘5 January 2010 and 3 February 2010’. Further excepting the words ‘information relating to the national defense, to wit:’. Further excepting the words, ‘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’; substituting the words ‘did willfully communicate’. Further excepting the words and figures, ‘in violation of 18 US Code Section 793(e),’. To the excepted words and figures, not guilty. To the substituted words and figures, guilty.

To Specification 8 of Charge II, not guilty.

To Specification 9 of Charge II, guilty except the words and figures ‘between on or about 8 March 2010 and on or about 27 May 2010’ substituting therefore the words and figures ‘on or about 8 March 2010’. Further excepting the words ‘information relating to the national defense, to wit:’. Further excepting the words, ‘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’; substituting the words ‘did willfully communicate’. Further excepting the words and figures, ‘in violation of 18 US Code Section 793(e),’. To the excepted words and figures, not guilty. To the substituted words and figures, guilty.

To Specification 10 of Charge II, guilty except the words and figures ’11 April 2010 and 27 May 2010′ substituting therefore the words and figures ’10 April 2010 and 12 April 2010′. Further excepting the words ‘information relating to the national defense, to wit:’. Further excepting the words, ‘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’; substituting the words ‘did willfully communicate’. Further excepting the words and figures, ‘in violation of 18 US Code Section 793(e),’. To the excepted words and figures, not guilty. To the substituted words and figures, guilty.

To Specification 11 of Charge II, not guilty.

To Specification 12 of Charge II, not guilty.

To Specification 13 of Charge II, guilty except the words and figures ’27 May 2010′ substituting therefore the words and figures ‘4 May 2010’. Further excepting the words ‘knowingly exceeded authorized access’ substituting therefore the words ‘knowingly accessed’. Further excepting the words, ‘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),’. To the excepted words and figures, not guilty. To the substituted words and figures, guilty.

To Specification 14 of Charge II, guilty except the words and figures ’15 February 2010 and 18 February 2010′ substituting therefore the words and figures ’14 February 2010 and 15 February 2010′. Further excepting the words ‘knowingly exceeded authorized access’ substituting therefore the words ‘knowingly accessed’. Further excepting the words, ‘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),’. To the excepted words and figures, not guilty. To the substituted words and figures, guilty.

To Specification 15 of Charge II, guilty except the words and figures ‘between on or about 15 February 2010 and on or about 15 March 2010’ substituting therefore the words and figures ‘on or about 8 March 2010’. Further excepting the words ‘information relating to the national defense, to wit:’. Further excepting the words, ‘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’; substituting the words ‘did willfully communicate’. Further excepting the words and figures, ‘in violation of 18 US Code Section 793(e),’. To the excepted words and figures, not guilty. To the substituted words and figures, guilty.

To Specification 16 of Charge II, not guilty.

To Charge II, guilty.

To Specification 1 of Charge III, not guilty.

To Specification 2 of Charge III, not guilty.

To Specification 3 of Charge III, not guilty.

To Specification 4 of Charge III, not guilty.

To Specification 5 of Charge III, guilty except the words and figures ‘1 November 2009’ substituting therefore the words and figures ‘8 January 2010’. To the excepted words and figures, not guilty. To the substituted words and figures, guilty.

To Charge III, guilty.

Judge Lind

Judge Lind

However, your plea can be used to establish elements of the less included offense that are included within the greater offense without further proof by the government.

Do you understand that?

Pfc. Manning

Yes, your Honor.

Judge Lind

Now in this case you are pleading guilty to lesser included offenses of specification charging violations of 18 Unites States Code 793(e) and 1030(a)(1).

As we’ll discuss later the elements of 18 United States Code Section 793(e) that the government would have to prove beyond a reasonable doubt and how I would instruct on them are as follows.

Charge II, Specifications 2, 3, 5, 7, 9, 11, and 15 transmitting defense information.

This is how I would instruct if it was going to be a panel and I wasn’t– these are the instructions that I will follow– even though I am not going to read them in a trial by a military judge alone.

In Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II you are charged with the offense of transmitting defense information in violation of Title 18 United States Code Section 793(e) and Article 134 UCMJ.

In order to find the accused guilty of this offense, you must be convinced by legal and competent evidence beyond a reasonable doubt:

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

Specification 2, 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 3, 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 5, 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 7, 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 9, 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 10, 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 11, 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 15, 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;

The following elements are common to all the Specifications:

Element (2): classified records, memorandum, videos, and files described for each Specification in element (1) was information related to the national defense.

Element (3): The accused had reason to believe that the classified records, memorandum, videos, and files described for each specification in element (1) 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.

Then the definitions I would give if this was a members case– and that I will follow if the government decides to go forward with the greater offense are as follows:

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 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.

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, you 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. You 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 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, you may consider the nature of the information involved. You 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.

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.

Determining whether the person who received the information is entitled to receive it; you 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.

I am taking judicial notice that Title 18 United States Code Section 793(e) was in existence on the dates alleged in Specifications 2, 3, 5, 7, 9, 10, 11, and 15 or Charge II.

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.

Under some circumstances the accused conduct may not be prejudicial to good order and discipline, but none the less may be service discrediting. As I’ve explain those terms to you, likewise depending on the circumstances the accused conduct can be prejudicial to good order and discipline but not service discrediting.

Now, you are pleading guilty to a lesser included offense by exceptions and substitutions.

Now you understand that some of the elements that– your pleading guilty then to all of the specifications that have been charged under 18 United States Code Section 793(e) and Article 134 except Specification 11.

Now I told you earlier that your plea will establish certain elements that the government has to prove for the greater offense.

Now your guilty plea admits to the following elements.

It admits to element (1) that you 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.

Your plea will also admit element (4) for all specifications except Specification 11– that you willfully communicated the above material to a person not authorized to receive it.

Your guilty plea is also going to admit for all specification except Specification 11 that under the– element (6)– that under the circumstances your 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.

There are two or three elements left that the government would have to prove beyond a reasonable doubt to find you guilty of the greater offense in violation of 18 United States Code Section 793(e) depending on the ruling that we discussed two days ago.

How I rule on the issue– in that I am awaiting the parties’ briefs on this issue.

Those elements are:

Element (2), that the classified records, memorandum, videos, and files described in each specification was information related to the national defense– the government is going to have to prove that regardless of how I rule.

And element (3)– this is the element at issue that I would be– that you 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.

And element (6) the government also will have to prove regardless of how I rule on element (3). At the time 18 United States Code Section 793(e) was in existence on the dates of the Specifications. Now with respect to element (6), I’ve taken judicial notice of the statute. So, the government doesn’t have to present any further evidence to establish to establish its existence.

That leaves elements (2) and (3). The issue the parties are briefing me on is whether element (3) is required in document or tangible item cases or if it is only an added element for cases involving intangible information.

If I rule for the government on that issue– essentially the only element the government would have to present– additional evidence to prove after your plea is element (2)– that the classified records, memorandum, videos, and files described for each specification was information related to the national defense. Do you understand this?

Pfc. Manning

Yes, your Honor.

Judge Lind

Now if I rule for the defense then the government is also going to have to prove element (3)– and if I rule for the defense and as a fact finder I subsequently find that the it’s tangible information versus intangible information– both of those would have to occur.

Alright, now the same is true of your pleas to the lesser included offenses of Specifications of 13 and 14 of Charge II. The elements the government would have to prove beyond a reasonable doubt for those specifications– and how I would instruct on them are:

Charge II, Specifications 13 and 14– fraud and related activity with computers.

In Specifications 13 and 14 of Charge II, the accused is charged for the offense of fraud and related activity in connection with computers in violation of Title 18 United States Code Section 1030(a)(1) and Article 134, UCMJ.

In order to find the accused guilty of this offense you must be convinced by legal and competent evidence beyond a reasonable doubt:

(1) That at or near Contingency Operating Station Hammer, Iraq: Specification 13, between on or about 28 March 2010 and on or about 27 May 2010; in Specification 14 between on or about 15 February 2010 and on or about 18 February 2010 the accused knowingly accessed a computer exceeding authorized access on a Secret Internet Protocol Router Network.

(2) That the accused obtained information that has been determined by the United States government by Executive Order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations to wit: Specification 13, more than 75 classified United States Department of State cables; Specification 14, a classified Department of State cable entitled Reykjavik 13.

(3) The accused had reason to believe the information obtained could be used to the injury of the United States or the advantage of any foreign nation; and,

(4) That the accused communicated, delivered, transmitted, or caused to be communicated, delivered, or transmitted the information to a person not authorized to receive it.

(5) That the accused acted willfully; and,

(6) That 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 upon the armed forces.

The same definitions for prejudice to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces that I read for you in specifications– for the specification of 18 United States Code 793(e) also apply to this offense.

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.

An act is done knowingly if it is done voluntarily and intentionally and not because of a mistake or accident or other innocent reason.

The term computer means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical or arithmetic or storage function and includes any data storage facility or communications facility directly related to or operating in conjunction with such device. But such term does not include an automated typewriter or typesetter or any portable handheld calculator or other similar device.

The term exceeds authorized access means that the accused accessed a computer with authorization and used such access to obtain or alter information in the computer that the accused is not entitled to so obtain or alter. It is the knowing use of the computer by exceeding authorized access which is being proscribed not the unauthorized possession of, access to or control over the protected information itself.

Reason to believe means knew facts from which he concluded or reasonably should have concluded that the information could be used for the prohibitive purposes. In considering whether the accused had reason to believe that the information could be used to the injury of the United States or the advantage of any foreign country, you may consider the nature of the information involved. You 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 used. Additionally, the likelihood of the information being used to the injury of the United States of the advantage of any foreign nation must not be to 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 his act could both injure the United States and be to the advantage of any foreign nation. Also, the country whose advantage the information could be use, need not necessarily be an enemy of the United States. The statute does not distinguish between friend and enemy.

In determining whether the person who had received the information was entitled to receive it, you may consider all the evidence introduced at trial including any evidence concerning the classification status of the information; and evidence relating to law and regulations governing the classification and declassification of the national security information; its handling, use, and distribution as well as any evidence related to the regulations governing the handling, use, and distribution obtained from classification systems.

The term person means any individual, firm, corporation, education institution, financial institution, government entity, or legal or other entity.

I’ve given judicial notice that Title 18 United States Code Section 1030(a)(1) was in existence on the date alleged in the specification[s].

Now again you are pleading guilty to lesser included offenses in Specifications 13 and 14 of Charge II by exceptions and substitutions. Your guilty plea admits to the following elements:

Element (1). Your plea admits that you knowingly accessed a Secret Internet Protocol Router Network computer. The government still has to prove if they go forward with the greater offense that you exceeded authorized access. So element one is kind of bifurcated. You are admitting part of it and the government still has to prove part of it.

Element (2). That you obtained information that has been determined by the United States government by 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 for Specification 13; and for Specification 14 a classified Department of State cable entitled Reykjavik 13.

Element (4) that you are also admitting that you willfully communicated the above material to a person not entitled to receive it– and that would be element (5), excuse me.

And element (6) that under the circumstances your conduct was to the prejudice of good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces.

Now there are two elements and one element in part that the government would have to prove beyond a reasonable doubt to find you guilty of the greater offense, in violation of 18 United States Code Section 1030(a)(1). Those elements are:

Partial of element (1), the government would have to prove that you knowingly exceeded authorized access.

Element (3), that you have reason to believe the information obtained could be used to the injury of the United States or the advantage of any foreign nation; and,

Element (6) at the time 18 United States Code Section 1030(a)(1) was in existence on the dates alleged in specification.

Now once again with respect to element (6) I’ve taken judicial notice of the statute. So, the government doesn’t have to present any further proof to establish its existence.

That leaves partial element of (1) and element (3).

Finally, I want you to understand how your guilty plea will work if the government decides to go forward with the greater offense.

If I find your plea is provident, I am not making any findings today.

If the government decides to go forward with the greater offenses, the government would present their evidence in the merits portion of the case.

As I said before, I can’t use anything that you tell me during the providence inquiry.

Everything that the government presents is going to have– they are going to have to present without that evidence at the merits portion of the trial.

And I would have two possible findings regarding the specifications, when you have entered guilty pleas:

Guilty to the lesser included offense pursuant to your plea or guilty to the greater offense if proved by the government.

There will be no possibility for me to find you not guilty based on your plea.

Alright Pfc. Manning, your counsel has entered a plea of guilty to lesser included offenses by exceptions and substitutions for several of the charges and specifications.

Your plea of guilty will not be accepted unless you understand its full meaning and effect.

I am going to discuss your guilty plea with you.

You may wish to consult with your defense counsel at anytime before answering any of my questions.

If you have any questions of me feel free to ask them.

Judge Lind

A plea of guilty is equivalent to a conviction and is the strongest form of proof known to the law.

On your plea alone without receiving any evidence this court can find you guilty of the offenses for which you have pled guilty.

Your plea will not be accepted unless you realize that by your plea you admit every act or omission and every element of the offenses to which you have pled guilty.

Trial counsel, please place Pfc. Manning under oath.

Prosecution (Fein)

But, that doesn’t mean you have to provide a statement to the court.

I mean we could just go– you could explain to me what the facts were.

Ma’am if we could just make it fifteen because of the number of spectators.

Judge Lind

Why don’t we do that? We’ll just reconvene here at eleven o’clock. Court is in recess.

Defense (Coombs)

That is fine with the defense your Honor.

Prosecution (Fein)

Yes, Ma’am. United States asks for ten minutes for the recess.

Judge Lind

Alright. The court is in recess until twenty five minutes after twelve.

ALL RISE

Judge Lind

Please be seated. This Article 39(a) session is called to order. Let the record reflect all parties are present when the court last recessed are again present in court. Now Major Fein, I understand there has been an additional appellate exhibit marked. Would you like to describe it for the record?

Prosecution (Fein)

Yes, Ma’am. Appellate exhibit– what has been marked as appellate exhibit 501– is a compilation– two different binders combined of all the different charged documents for which Private First Class Manning is pleading guilty today to.

Yes, your Honor.

Let’s look at tab three. Once again– same procedure for all these tabs.

Just take a look through them and let me know when you are finished.

Pfc. Manning

I am finished, your Honor.

Judge Lind

Alright. Are the pages at tab three the charged documents in Specification 15, which would be ‘a classified record produced by a United States Army intelligence organization’?

Pfc. Manning

Yes, your Honor.

Judge Lind

[missed word] Are they [missed word] classified as well?

Pfc. Manning

Yes, your Honor.

Prosecution (Fein)

Your Honor [missed a few words]. Is it possible that Private First Class Manning [I missed exact language, but essentially Manning is asked to keep the binder down in his lap because it contains classified documents, most of which incidentally is published on the internet]?

Judge Lind

Alright, I think the goal is– just keep it down, thank you. Pfc. Manning, I know that this is making it a little bit more difficult.

Let’s look at tab four.

Mr. Coombs. Does that work for the a–

Prosecution (Fein)

Yes, Ma’am.

Prosecution (Fein)

Alright, court is in recess till 14 hundred.

After I list the elements for you, be prepared to talk to me about the facts regarding the offenses.

I want you to take a look at Specifications 2, 3, 5, 7, 9, 10, and 15 of Charge II as you pled them.

These specifications allege the events of– as originally charged led to the offense of transmitting defense information in violation of Title 18 United States Code Section 793(e) and Article 134, UCMJ.

Your counsel has entered a plea of guilty by exceptions and substitutions for you to the lesser included offense of conduct prejudicial to good order and discipline and service discrediting conduct under Article 134, clauses (1) and (2).

By pleading guilty to this offense you are admitting that the following elements are true and accurately describe what you did.

Element (1) At of near Contingency Operating Station Hammer, Iraq Specification 2 between on or about 14 February 2010 and 21 February 2010, you without authorization had possession of, access to, control over a video named “12 JUL 07 CZ ENGAGEMENT ZONE 30 GC Anyone.avi”; Specification 3 between on or about 17 March and 22 March 2010 you without authorization had possession of, access to, control over one classified memorandum produced by a United States government agency; Specification 5 between on or about 5 January 2010 and 3 February 2010, you without authorization had possession of, access to, control over more than twenty classified records from the Combined Information Data Network Exchange Iraq database; Specification 7 between on or about 5 January 2010 and 3 February 2010 you 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 9 on or about 8 March 2010 you without authorization had possession of, access to, control over more than three classified records from a United States Southern Command database; Specification 10 between on or about 10 April 2010 and 12 April 2010 you you without authorization had possession of, access to, control over more than five classified records related to a military operation in Farah Province, Afghanistan occurring on or about 4 May 2009; and Specification 15 on or about 8 March 2010 you without authorization had possession of, access to, control over a classified record produced by a United States Army intelligence organization dated 18 March 2008.

Elements common to all specifications:

Element (2) that you willfully communicated the classified records, classified memorandum, videos, and files described for each specification in element (1) to a person not authorized to receive it; and

[Element] (3) that under the circumstances your conduct was the prejudice to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Alright the definitions that apply to these offenses are:

Conduct prejudicial to good order and discipline is conduct which causes a 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 would be regarded as prejudicial in some indirect or remote sense. However, only those acts in which the prejudice is reasonably direct and palpable is punishable under this Article.

With respect to service discrediting, the law recognizes that almost 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 have a tendency to bring the service into disrepute or which tend to lower it in public esteem are punishable under this Article.

Under some circumstances your conduct may not be prejudicial to good order and discipline, but none the less be service discrediting. As I have explained [missed a few words], likewise depending on the circumstances, your conduct could be prejudicial to good order and discipline, but not be service discrediting.

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

Possession means the act of having or holding of 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 conclude control by others. It is possible 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 which is contrary to law or regulation for the conditions of his employment.

If this was a– before a trier of fact, whether the person who received the information was entitled to have it, the trier of fact would consider all that the evidence introduced at trial to include any evidence concerning the classification status of the information; any evidence relating to the laws and regulations governing classification and declassification of national security information; its handling and distributions; as well as any evidence relating to regulations governing the handling, use, and distribution of information obtained from classification systems.

For a person, and individual, firm, corporation, education institution, financial institution, government entity, or legal or other entity.

Judge Lind

Was it marked in any way?

Pfc. Manning

It didn’t have markings your Honor, but it– I mean going by the matrix you can– because it didn’t have marking that’s why I went to the classification matrix, your Honor.

Judge Lind

Now what is a classification matrix?

Pfc. Manning

It’s sort of a quick– a short hand guide for derivative classification– for people with derivative classification to classify documents within the guidelines of the original classification authority, when you don’t have an OCA there to determine specifically what it is at that time, so.

Judge Lind

So, just to make sure that I understand this.

Pfc. Manning

Conclusions– conclusions about?

Judge Lind

Well about– you made a decision– did you make a decision at some point that you needed to give that video to the news media?

Pfc. Manning

Yes, your Honor.

Probably about a week or so after first viewing it, your Honor.

Judge Lind

Pfc. Manning

It was– I kept it on– I left it on the computer for a few days, your Honor.

I wasn’t– I wasn’t sure what I was going to do with it.

I thought– I mean, I think I had just come back off of mid-tour leave, your Honor.

And, I wasn’t– I thought I would just keep it and then I intended on giving– on somehow getting it to Reuters at some point.

Was WikiLeaks entitled to receive that video?

Pfc. Manning

Judge Lind

Alright, and lastly I want to talk to you about the ‘necessity’ defense.

And, what that is– it’s normally recognized in the Uniform Code of Military Justice but the appellate courts have said it is a form of ‘duress’ defense.

What a ‘duress’ defense is, is when a third party– when there’s a threat of serious imminent harm to you or somebody else cause by a third party. ‘Necessity’ is a little bit different– because it’s the circumstances– it’s a choice of evils defense.

A typical example that is given for ‘necessity’ is if you have to trespass over– there is somebody who is drowning in a pond– and you have to trespass over somebody’s yard to get to that pond to save that person– and there is nobody else around to save that person.

So, if you don’t trespass over that person’s yard, that person– that person in the pond drowns. So, that is the defense of ‘necessity’, basically. The ‘truth of evils’ defense.

So, you have to commit your crime to– to– because of the threat of serious, imminent harm to– to somebody else.

Judge Lind

In your case, do you believe that the ‘necessity’ defense applies when you transferred that video?

Yes, your Honor.

Judge Lind

Okay. Now what about service discrediting.

Do you think that your conduct in giving the video to WikiLeaks was service discrediting?

Pfc. Manning

Yes, your Honor.

Judge Lind

Why?

Pfc. Manning

Well, there is a– for the service discrediting it is about public perception of the military and the services, and our ability to– and their trust in their– their perception that we can safeguard our sensitive information for their protection.

Well, your Honor. It wasn’t over a– I mean to start off with it wasn’t using an authorized means of– for transferring this information.

As far as I was aware, I mean this was over a non-secure network, so I have no guarantees that anybody was authorized to receive it on the other end.

And, I am not aware that– I mean I know that they’re– I mean I am not aware of them being a US– or a US government entity, so.

And then also, I’m not aware of any of them having any type of security clearances or anything, so.

Judge Lind

Okay. Now I know that you talked about it earlier in your statement, and I am not going to try to get you to– you know, rehash your entire statement, but just briefly what is your understanding of WikiLeaks– what’s– how did you discover it?

And, what did you come to think of it?

Pfc. Manning

I discovered it in November– around the Thanksgiving time frame of 2009, when they published some SMS text messages or– and then I did some research into them after– after that, based upon the fact that I had– I had heard of the website before but never visited it prior to that.

But, I was– I became interested in it after that. And, I became familiar with– with the organization and how it operated, and what they were publishing and all the rest of it after a few weeks of going through it– going through stuff both on the open source Google [missed word] on my personal computer and using my– my access to Secret documents, your Honor.

Judge Lind

Okay. You said an ‘S-M-S’ text, what’s that?

Pfc. Manning

It’s a Short Messaging System.

It’s basically whenever you text message on a cell phone those are– that is the kind of message.

But, before– I mean it use to be pagers– it is the same standard that they based and updated for modern phones you have, your Honor.

Judge Lind

And you said you did some intelligence and you came to learn about WikiLeaks and its organization– what did you learn?

Pfc. Manning

Judge Lind

Okay. Pfc. Manning let’s try that again. The– I asked you earlier if your conduct was willful– that is, intentional with intent to violate the law– or at least was it in this case?

Pfc. Manning

Yes, your Honor.

Judge Lind

Okay.

Did you know you were violating the law when you transmitted the information?

Pfc. Manning

Yes, your Honor.

Judge Lind

Judge Lind

Okay. Does either side see any need for me to ask anymore of those willfulness or service discrediting or prejudice to good order and discipline questions with respect to when I am going through the factual predicate for the other offenses?

Prosecution (Fein)

No, Ma’am. Not for the general questions.

Alright.

Judge Lind

So this was at– out of all these specifications, even though it’s in the middle for the Specification 5– this was the first time you uploaded to WikiLeaks– is that right?

Pfc. Manning

Correct, your Honor.

Judge Lind

Okay. Did you do the Afghanistan database at the same time or is it– is there–

Pfc. Manning

They were– yes– I– they were on both on the same DVD-RW that I took from the conference room in the SCIF.

Judge Lind

Okay. Well, let’s– let’s talk about Specification 5 and Specification 7 together then.

Did you– you download Afghanistan and Iraq C-I-D-N-E databases at the same time– or?

Pfc. Manning

Yeah, it was sequential. So, I got Iraq first and then I downloaded Afghanistan, your Honor.

Judge Lind

Okay. Was it on the same CD?

Pfc. Manning

Yes, it should have been on the– I labeled the CD CIDNE SigActs, your Honor.

Judge Lind

The way that it– and I covered this with my client.

The way we looked at the location, Ma’am was that’s were he had the unauthorized possession of it and then the actual disclosure was in the United States.

However, the way that the specification is– he has the unauthorized possession at or near Contingency Operations Station Hammer, Iraq.

I’ve discussed with him that the actual disclosure was in the United States.

Looking at it, I did not believe that, that would require us to do exceptions and substitutions for the location.

Judge Lind

Now, your plea of guilty admits that the following elements are true and accurately describe what you did.

[Element] (1) That at or near Contingency Operations Station Hammer, Iraq for Specification 13 between on or about 28 March 2010 and on or about 4 May 2010; and for Specification 14 between on or about 14 February 2010 and 15 February 2010 you knowingly accessed a computer on a Secret Internet Protocol Router Network.

Element (2) That you obtained information that has been determined by the United States government by Executive Order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations to wit: Specification 13, more that 75 classified United States Department of State cables and Specification 14, a classified Department of State cable entitled Reykjavik 13

Element (3) That you communicated, delivered, transmitted, or caused to be communicated, delivered, or transmitted the information to a person not entitled to receive it.

Element (4) That you acted willfully.

Element (5) That under the circumstances your 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.

The same definitions for prejudice to good order and discipline in the Armed Forces and of a nature to bring discredit upon the Armed Forces that I read for you for the offenses charged in Specifications 2, 3, 5, 7, 9, 10, and 15 of Charge II also apply to this defense. Would you like me to read them to you again?

Pfc. Manning

No, your Honor. That is not necessary.

Judge Lind

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

And act is done knowingly if it is done voluntarily and intentionally and not because of a mistake or accident or other innocent reason.

Alright. Once again– I defined person for you earlier the same definitions apply would you like me to read that again?

Pfc. Manning

No, your Honor.

Judge Lind

By pleading guilty to this offense you are admitting that the following elements accurately describe what you did:

(1) There was in existence a certain lawful general regulation and the following terms: paragraph 7-4 Army Regulation 380-5 dated 29 September 2000;

(2) That you had a duty to obey that regulation; and,

(3) That at or near Contingency Operating Station Hammer, Iraq between on or about 8 January 2010 and on or about 10 May 2010 you violated this [said ‘wrongful’, but she probably meant ‘lawful’] general regulation by wrongfully storing classified information.

Alright. One minute here.

Defense (Coombs)

Ma’am the court had stated 10 May for the end date– it’s 27 May 2010.

Judge Lind

27 May– I thought I saw that. Okay. So, let’s go– let’s just change that last element here. So that would be at or near– element (3) would be at or near Contingency Operations Station Hammer, Iraq between on or about 8 January 2010 and on or about 27 May 2010 you violated this lawful general regulation by wrongfully storing information.

It is in the specification.

Judge Lind

Prosecution (Fein)

At a minimum, yeah, absolutely, Ma’am.

Judge Lind

Okay. But then the court will make it’s findings now with respect to the closed session.

In accordance with RCM 806(b)(2) and MRE 505(i) and the First and Sixth Amendments to the Constitution, the court finds and rules as follows.

At the request of the court and the– at the request– I’m sorry. The government has moved for an in camera closed proceeding pursuant to MRE 505(i)(2) regarding the use of certain classified information at trial. The court has examined the filings by the parties as well as the ex parte and classified filings by the government, and finds that the Article 39(a) session on closure and motion to close the courtroom for specified testimony– that the government has demonstrated that disclosure of classified information as issue could reasonably be expected to cause damage to the national security in the degree to warrant classification under Executive Order, statute, or regulation. Closure of the hearing is narrowly tailored to protect an overriding national security interest, and the hearing regarding this issue will be open to the maximum extent possible tomorrow to at least introduce the– the issues. And, that there are no other alternatives other than the closed hearing– the rule actually provides for a closed hearing in this case to discuss the use of that particular information at trial. So, the court is going to grant the government’s motion for a closed hearing tomorrow in addition to the original open hearing.

So, we’re going to open the session at ten o’clock. The parties and I are going to meet a little bit earlier than that– because we are going to go over the trial calendar. Some new things have been added to include the motion we just talked about for the next session. So, we are going to look at the dates and make sure that the current case calendar– that the dates are a good idea and we could add some dates or take some dates out. We are not sure. When we open the court tomorrow at ten o’clock, what we would like to do is have a way ahead. So, we can announce that to the public and everybody knows what is going to be going on in the case.

Is there anything else that we are going to address tomorrow that I have neglected to mention?

Prosecution (Fein)

Ma’am, just the United States also intends as we get into the 505(i), just provide more of a historical references as far as Article 104. And then also we will capture for the record– 505(h) filing and both parties are going to meet this afternoon [missed a few words] this session closes.

Judge Lind

Is there anything else that we need to address, before we recess the court for the evening?

Prosecution (Fein)

No, your Honor.

Defense (Coombs)

No, your Honor.

Judge Lind

Alright, court is in recess until ten o’clock tomorrow morning.

ALL RISE