Transcript | US v Pfc. Manning, Article 39(a) Session, 06/07/12

posted June 7, 2012

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 Motion Hearing held on June 7, 2012 at Fort Meade, Maryland in US v Pfc. Manning.

Judge: Army Col. Denise Lind
Prosecution: Captain Ashden Fein, Captain Joe Morrow, Captain Angel Overgaard, Capt. Hunter Whyte
Defense: Mr. David Coombs,Captain Joshua Tooman, Major Thomas Hurley
Witness: Ms. Marguerite Coffey, former State Department director of the Office of Management Policy, Right Sizing, and Innovation who also acted as the supervisor of the WikiLeaks Mitigation Team
Witness: Ms. Rena Bitter, director of the Operations Center (S/ES-O) at the U.S. Department of State
Witness: Ms. Catherine Brown, the current Deputy Assistant Secretary of State for the Bureau of Intelligence and Research at the U.S. Department of State

Marguerite Coffey

You are welcome.

Ms. Marguerite Coffey, former director of the Office of Management Policy, Rightsizing, and Innovation at the U.S. Department of State (M/PRI), and the supervisor of the WikiLeaks Mitigation Team, steps down.

Defense (Coombs)

No, generally not. That would be through the public affairs section. What we do is that when there is like an ongoing crisis, we will bring together all the people in the Department that have a role in it on the task force or working group, so they can all work together in one location and coordinate with each other.

If something like a public statement or testimony elsewhere can be [missed word], that individual offices in bureaus.

Defense (Coombs)

So, the operations center basically supervises ad hoc groups that have been created in response to some emergency or…?

Rena Bitter

Yeah. Well what happened is the…with what happens…with the Executive Secretariat, the head of…we work for him, and his job…to put it in some very simple terms…he is the assistant secretary for making the State Department do what the Secretary needs it to do.

Well, I imagine if they are looking at cables and we will just take the cables that have been released, that they were looking at, not the entire database.

Defense (Coombs)

I think so, I mean just from a timing, if it was three weeks I would understand that it would be a very difficult tasks to look at the entire database.

How about supporting documentation that, I think that is what I am asking, is if I contacted say for example say, the particular embassy overseas, asked them for information.

They gave it to me in a written format, then I took that and reduced it into the situation report, would the documentation coming from the outside sources be reduced to writing?

Rena Bitter

It might have been, it might have. It is possible.

Defense (Coombs)

And, would that be included within the situation report like an attachment or enclosure?

Rena Bitter

Probably not. It is really a little bit hard to say when it might have been a phone call or face-to-face interaction with people in the building.

It could have potentially have been an email, but I don’t know for sure. And if it was an email it would have not been attached.

Defense (Coombs)

And, after 17 December 2010 what was done with the work product of the 24/7 WikiLeaks Working Group?

Rena Bitter

Defense (Coombs)

And, can you tell me the primary mission of this other group?

Rena Bitter

This group wanted to identify people who may have been identified as at risk due to disclosures in the purported State Department information, and develop a way to handle…develop ways to help them, and policy to deal with the issue on an ongoing basis.

Defense (Coombs)

And, is this group still working?

Rena Bitter

Alright, so if I understand right then, the Chiefs of Missions reviewed the cables.

If they saw anyone in the cables from their embassy that they thought was at risk, they would identify those people to the Persons at Risk Working Group?

Rena Bitter

They may have, or they may not have. But, they would make that judgment. They would look at each case individually.

They may decide this person may be at risk, or may not be. They may decide we are going to ask this person…we are going to let this person know that they have been…that we have used as a source in this cable.

The group did…it was an unusual working group. It didn’t report [missed word] at all, and it was…the purpose of the group was not to disseminate this information.

I think so. I don’t know for sure.

Defense (Coombs)

Do you know if the group is still submitting memos…?

Rena Bitter

I don’t believe it is. [repeats] I don’t believe it is. That was something that…I don’t know how long that went on.

It didn’t…the memos became less frequent after a month or two months of the working group. I don’t know exactly when that stopped.

Defense (Coombs)

And, with regards to the memos, do you know where those might be stored or captured?

Rena Bitter

Those are again official record memos that they went to the Secretary so they would have been captured with formal process that Department uses to capture information that goes to the Secretary.

Defense (Coombs)

So, when we are looking for those memos, we need to go to the Executive Secretary again or would you go somewhere else?

Rena Bitter

Ms. Rena Bitter, director of the Operations Center at the Department of State steps down.

Defense (Coombs)

Your Honor, I think that is all the Department of State witnesses that we have in person.

If we could, perhaps have ten minute comfort break, and then pick up the 793(e) motion?

What that development makes clear is that from the 40s when the phrase was first looked at up until today, the Courts have acknowledged that that phrase is vague, though they haven’t ruled that was unconstitutional for vagueness, the Courts have acknowledged that it is vague.

They have made that acknowledgement by using the limiting instructions and putting judicial gloss on that phrase.

Judge Lind

Well, why can’t this Court do that?

Defense (Tooman)

Your Honor. The defense’s position is that for the past 70 years the Courts have been putting judicial gloss on this phrase.

Certainly this Court could do that, but it is the defense’s position that at some point when you put a gloss on top of gloss on top of gloss the judiciary does not put itself in a position where they are legislating rather than letting the statute speak for itself.

And, that is the defense position just based on the amount of gloss that has been put on this phrase “relating to the national defense”. It is clearly vague. Along those lines, you Honor.

The phrase “injury to the United States or advantage to any foreign nation” is also vague. Again, that is a phrase that is padded a lot of judicial gloss put on it.

It is also a phrase in the disjunctive, and so it is possible that an individual could be charged under this statute where there is no injury to the United States at all, and still be found as guilty.

Additionally, as that gloss [missed word] on that phrase, the Courts started to make the injury to the United States to the advantage of any foreign nation a modifier of the mens rea, which is under the statute is willfully.

But really, that phrase is a modifier of the type of information. It is not a modifier of the mens rea, and so you see from the Courts, they started to take that phrase and make it a mens rea issue when really it is a type of information issue.

And finally your Honor, in particular the word injury is vague. It is unclear, first of all, what type of injury is required. Is it physical injury? Is it embarrassment? Is it monetary injury? That is unclear.

And, what is also unclear is the extent of the injury that is required. Is it minimal injury just the scantest little thing or does it have to be some sort of grave injury?

And, so because that is unclear then no Courts have cleared that up, it is the defense’s position that that is unconstitutionally vague.

Additionally, you Honor, the defense’s position is that this is an over broad…unconstitutionally over broad as well.

Of particular note is the…some of the language used by the Morison Court where they talk about national security being related to the security of the public.

National security is not a phrase that is meant to protect the Government from things that are embarrassing as national security as contemplated by the statute is the security of the people to have information and be able to understand what their government is doing.

Certainly, this statute could reach a lot of protected speech, and as such we feel that this is over broad. Subject to your questions Ma’am?

Judge Lind

Thank you. [missed word]

Prosecution (Morrow)

Your Honor, the Government opposes the defense motion to dismiss the 18 U.S.C. 793 as neither unconstitutionally vague or substantially [missed word] violation of the First Amendment.

With respect to the vagueness argument, your Honor, the Government maintains that that statute 793(e) provides fair warning to persons of ordinary intelligence.

In fact, the phrase “relating to the national defense” has been repeatedly challenges by defendants on the basis of influence on [missed word] or vagueness and it has survived scrutiny.

As you know, the Supreme Court in Warren v. United States over the language employed by the predecessor statute for 793(e) specifically the turn of phrase “related to the national defense” or “connected to the national defense” was sufficiently [missed word] to [missed word] with scope, and as the defense notes, while certainly the Courts provide further judicial gloss to the phrase “relating to the national defense”.

Defense has failed to establish why further refinement didn’t not have any vagueness concerns [missed word] at the Supreme Court as already found the insufficient [missed word].

And in fact, that judicial gloss is argued that more protection for defense than required by the Court.

According to this, the Court should find that phrase “relating to the national defense” sufficiently definite and the Accused argues the contrary [missed word] by a Court of the United States.

As I recall, the Rosen Court was dealing with defendants that were part of a lobbying firm, and so there were some First Amendment issues in that case, because they obviously didn’t have a relationship with the Government like the Accused has in this case with signing a Non Disclosure Agreement and the Army, et cetera.

So there were some First Amendment rights dictating that case. In fact, the Government maintained that there are no First Amendment rights [missed word] this case, and actually we put this in out brief that I am not arguing today, we think the defense should be precluded from challenging the statute today on its face, [missed word] First Amendment [missed word].

But, [missed word] Rosen Court’s analysis…Rosen Court…they construed various terms [missed word] in the statute and they found no substantial over breath based on that.

And, despite pervasive case law on the over breath question the defense argues that section 793(e) proposes substantial dangers to the free speech rights of reporters.

Of course, the defense has put it into raise the constitutional rights of third parties in the over breath challenge, but they failed to really establish why the application of the statute in a hypothetical case somehow renders the entire statute [missed word] and it has got to be a substantial number of documentations in relationship to the [missed word] of the [missed word]…application of the statute.

And finally, you Honor, with respect to the rule of [missed word] able to sort of mentioned in a small paragraph of the defense brief, they argue the rule [missed word] requires any ambiguity statute to be resolved in the accused favor.

The Government agrees with that characterization to the extent that there is some narrow construction and a broader construction and there is also some vague or grievance ambiguity in the statute.

The Government does not agree that the rule of lenity compels this Court or any Court to take the drastic step of declaring the statute unconstitutional.

Subject to your questions your Honor.

Judge Lind

Okay. Thank you. The Court has been informed by the parties’ brief as well as the oral argument and will be prepared to rule on this issue before the close of business these Article 39(a) sessions days.

Are the Court prepared…?

Yes, Ma’am. Our main concern with lesser included offenses is that the Accused is placed on notice as to what he will have to possibly defend against, based upon the charge sheet.

And, in this case these [missed word] was placed on notice that the violation of AR [Army Regulation] 380-5 captured within Article 92 would in fact be a lesser included offense under the charges…in Charge II that allege a 793 offense of 18 U.S.C. 793.

That would be specifications 2, 3, 5, 7, 9, 10, 11, and 15.

Now, in order to determine whether or not we do have a lesser included offense C.A.A.F [United States Court of Appeals for the Armed Forces] has directed Courts to implement the elements test, and when you take a look at the cases – the Jones case, the Alston, Arriaga case, the [Barn?] case – they all lay out guiding principles for a Court when it comes to deciding whether or not and offense is a lesser included offense.

Those are that the offense do not have to use identical statutory language.

Second, that the fact that they are [missed word] alternative names of satisfying the lesser included offense does not mean that it is not the lesser included offense.

Third, that if elements that are not only statutory elements, but especially the Government is bringing in a[n Article] 134 offense, as alleged elements are elements that the Court has to look at with regards to doing the elements test.

Judge Lind

Well, what are you relying on that for? The test as outlined by the Court of Appeals of the Armed Forces [C.A.A.F.], isn’t it statutory elements test base?

Defense (Coombs)

No, you Honor. It is not.

[missed word]…and actually, if you, I believe…I believe it is in either Arriaga or it is in Alston, the Court states especially with [Article] 134 offenses…134 offenses are made specific based upon how they are alleged.

Because, as you look at it…a[n Article] 134 offense is just you have done some conduct and that [missed word].

So, in order, the statutory elements for that, you obviously cannot rely upon the statutory elements.

You have inform the statutory elements by how the Government has alleged the element in the charge sheet.

So, C.A.A.F. [United States Court of Criminal Appeals for the Armed Forces] has made clear that you [missed word] not only to the statutory elements, but how the Government has plead going back to what we commonly refer to – as for a trial counsel at least – you own what you plead.

So, the trial counsel choses to plead certain elements in a specification that becomes the elements test for this Court in determining what will be a lesser included offense.

And, it has to be that way, by way of the Alston case.

The Alston case used a statutory analysis, where, what they did is they [missed word] aggravated sexual assault was a lesser offense or rape.

And, what was clear from the Court analysis was there were three different ways that the Government could prove the rape, and in this case, as plead, only one of those three was at play.

And, because of that, when the Alston Court looked at it and said as charged, aggravated sexual assault is in fact a lesser included offense, because the force element that was charged within the rape offense met with the force element that was required by the aggravated sexual assault.

The Government’s whole argument as to the reading some other way to proving a lesser included offense, and therefore it cannot be a lesser included or some other way of proving the greater, and therefore this can’t be a lesser included, falls flat on its face when you look at Alston.

If the Government’s theory was correct, then C.A.A.F. [United States Court of Criminal Appeals] would have not decided Alston the way it did.

Judge Lind

Well, looking at the part of Alston that says the “[missed words] understanding of the words of the statute each act of force described an Article 120(t)(5)(C) at a minimum includes an offense of touching that satisfies the bodily harm element of Article 120(t)(8).”

So, the Accused [missed word] never going beyond the statutory element of analysis.

Defense (Coombs)

Well, okay again, in this case they are looking at the one aspect of how the force within rape satisfies the aggravated sexual assault.

The Court looks just below they…C.A.A.F. [United States Court of Criminal Appeals for the Armed Forces] recognizes that there are two other ways that it could be proven.

And so, in this instance, it is how the charge was alleged that makes the difference between how the Court is looking at it.

And, again, within the Alston case, and I believe within the Arriaga case, C.A.A.F. [United States Court of Criminal Appeals] talks about [Article] 134 being a statute that the elements, again, as we all know, if it was certainly a statutory elements test then this Court would only go with what the elements are.

And, what are those elements? Some conduct, and that [missed word] good order, discipline, or service discredit.

Judge Lind

And, here we have the additional [219 offense?] so [missed word] clause 3…?

Defense (Coombs)

…You do.

Judge Lind

…[missed word]?

Defense (Coombs)

You do.

If the Government, again, when you are charging [an Article] 134 offense, if you are stuck just [missed word] with the statutory elements, then two things would be problematic with a[n Article] 134 offense.

You would not look to the specification to see what that alleged conduct is, because clearly by alleging certain conduct you may invoke a lesser included offense.

It depends on what you allege for the conduct. And, even this instance, when a Government has brought in the 18 U.S.C. 793 offense, they are bringing in the offense and they are bracketing off to that, the clause 102 language.

That is not the statutory elements for the [Article] 134 offense as brought in by clause 3.

That is an election on the part of the Government.

So, again, if you were stuck with just the statutory elements, then you would never consider when you are doing an elements test, if clause 1 and 2 language, of any clause 3 offense.

So, it simply can’t be the case that you are limited solely to the statutory elements.

It is in fact, how the Government has plead the offense. That is important.

And, that becomes a controlling principle when the Court is taking a look at whether or not in this instance the [Army Regulation] 380-5 offense is in fact an LIO [Lesser Included Offense] of the charged 793 offenses.

And, looking at that, our brief and our reply brief goes through the analysis that the defense recommends that the Court take.

And, just briefly, without repeating the entire argument, you look at the 793 offense, and generally what you have there is an unauthorized possession of some information of some information related to the national defense that the soldier either had a reason to believe could cause damage, or maybe it could cause damage or injury to the United States or some foreign nation.

And, that soldier gives it to an unauthorized party. And, then as pled you add to that the service discrediting conduct to prejudice good order and discipline language.

An Article 92 offense under [Army Regulation] 380-5 involves a soldier with unauthorized possession of classified or sensitive information, and then again, an unauthorized disclosure of that information: either through through knowing, willful, or [missed word] conduct.

When you look at how these offenses are charged, and you use the elements test you cannot have an 18 U.S.C. 793 offense without a having a violation of Article 92.

It is just not possible. The Government has indicated…

Judge Lind

…that is where I am confused. How can you not have a 793(e) violation without having there was in existence a lawful general order?

Defense (Coombs)

Because, and this is where it is very important, you take a look at before the [Genois?] case, Chief Judge Cox talked about the fact that Article 92 is implicitly by necessity part of…part and parcel of a 793(e) offense, and the defenses cited in Court to the concurrent opinion by Judge Cox.

And that was based upon the necessarily included test basically. Now, the Court has gone to an elements test but an important part of the elements test is you have to take a look at the definition to inform what the elements mean.

And, that is where you go back to it is not…the fact that the elements used different statutory language does not mean it is not a lesser included offense.

So, we look at our analysis, the elements one and two…the existence of the lawful general regulation, and the Accused duty to obey it, is part and parcel to the first element of the 793 offense, the unauthorized possession of information.

Think for a moment how can soldier have an unauthorized possession of information related to the national defense, and then again as pled, with the exceptions of specification 2 and 11, everything that is pled is classified, how can the soldier have an unauthorized possession of classified information and not run afoul of AR [Army Regulation] 380-5 when you look at…?

Judge Lind

…isn’t it an evidence based analysis versus a statutory elements based analysis?

If you are looking at that theory [DNH cases?] lesser included offense of arson?

Defense (Coombs)

Well, again Ma’am, as you are going through the analysis especially with Jones, Alston, Arriaga , and Bonner they tell you to take a look at the definitions of the elements in order to determine what the elements mean.

So, if you look at the definitions, lets look at [Army Regulation] 380-5 then, paragraph 1-1 which the defense cited: “This regulation establishes the policy for the transmission, transportation, and safeguarding of information requiring protection in the interests of national security. It primarily pertains to classified national security information, now known as classified information, but also addresses controlled unclassified information, to include for official use only and sensitive but unclassified.”

So it is clear that the regulation and duty to obey it, the…which is ultimately the unauthorized possession here, but also could the fifth element or the sixth element [missed word] if you look at the Government’s version of the elements are but the conduct prejudice to good order and discipline or the service discrediting, that conduct can be captured by the duty to obey this regulation. [Army Regulation] 380-5
also indicates it covers the handling and classified instances of information.

The regulation prohibits among other things: collecting, obtaining, reporting, removing for any personal use whatsoever of any material or information classified in the interest of national security.

So, when you look at the definition, and that is what the Bonner Court and the Alston Court asked the Court to do. What do the elements mean?

When you look at the elements and you define them you see that both the 793(e) offense and the [Army Regulation] 380-5 require an unauthorized possession of information.

And, when you look at [Army Regulation] 380-5 in the unauthorized possession of information under 793, it would have to be an unauthorized possession of [Army Regulation] 380-5.

You simply cannot have one without the other. There is no way to have committed a 793 offense without committing a [Army Regulation] 380-5 offense.

It simply impossible. And, that is because the regulation governs this conduct.

So, in this instance…

Judge Lind

…[missed word] my hypothetical then?

[missed word] The [sounds like “ah broad”?] case of larson, and it is charged that you by submitting false receipts stole a certain amount of money from the Government. Is [missed word] claims then in the lesser included offenses of larceny?

Defense (Coombs)

Your Honor, I have to give some thought on that. I don’t think that is a comparative analogy to this, because in this instance, when you look at what is the main difference between 793 offense and [Army Regulation] 380-5.

The main difference here is that the information could be used to the injury of the United States or to the advantage of any foreign nation.

That is the main difference between a 793 and a [Army Regulation] 380-5 offense.

The Government’s assertion that you can prove a [Army Regulation] 380-5 offense without also, in this case prove a [18 U.S.C.] 793 without also proving a [Army Regulation] 380-5 is just a red herring, because there is no way that you can do that.

And so, that when you look at what would be a lesser included offense, that is the factor that you have to assess.

Take a look at the duty need to obey this regulation, and the violation of that duty. Compare it to the unauthorized possession.

So, if a panel determined that this was an unauthorized possession of classified information that was disclosed to a third party, but did not involve information that could cause damage to the United States, or aid any foreign nation, then [Army Regulation] 380-5 would be the lesser included offense, they would go down to, because that would be the conduct that is prescribed by regulation.

When you look at element three of the Article 92 offense, the knowing, willful, or negligent disclosure, and you compare that against the 793 offense of the willfully communicating, delivering, or transmitting…both of them involve providing information to an unauthorized person.

So, what is clear in this instance, that all three elements of the Article 92 offense are necessarily included within the [18 U.S.C.] 793 offense.

Both necessary included under a pre-Jones analysis and necessarily even included under a Jones analysis when you take a look at the elements and you define what those elements mean.

Then it is clear in this instance that a soldier cannot commit an 18 U.S.C. 793 offense, without first committing a [Army Regulation] 380-5 offense.

And, therefore, when you cannot commit one offense without the other, all of the cases…all the recent cases say that is a lesser included offense, if it cannot be committed without doing lesser.

With respect to specifications 2 and 11, the Government in its motion talks about the fact that they are not required in that instance to prove either classified or sensitive information.

That is their main objection, I guess, in addition to the others that the 380-5 is not a lesser included offense.

But, again if the Court looked at what the definitions are for the elements, you will see that even in this instance when it’s not a classified or sensitive information being alleged, it still falls under a lesser included offense.

And that is because of the requirement of the Government to prove that this information is related to the national defense.

And, if you look at what the Government is alleging in their response motion, they indicate that the Government has to prove that this information is related to the national defense, and they cite national defense Information for 18 U.S.C. 793 offense is information that is closely held by the Government, and 2.) potentially damaging to the United States or useful to the enemy of the United States if disclosed without authorization.

Therefore by the Government’s own admission that they are proving and necessarily proving that this information is potentially damaging to the United States or useful to an enemy of the United States, they are proving that sensitive information.

And, in order to get to that, you take a look at how [Army Regulation] 380-5 defines sensitive information. It defines sensitive information as “any information, the loss or misuse or unauthorized access to or modification of which could adversely affect the national interests or the conduct federal programs.”

Thus, if the Government proves that this information is related to the national defense, in will of necessity also prove and establish that this information is sensitive information, as defined by [Army Regulation] 380-5.

So, even in the situations where the Government has not pled that it is classified…classified information, that would be specifications 2 and 11, again, because they own what they plea…with regards to 2 and 11 they still have to prove that it is related to the national defense and when you look at what that means by definition both what the Government acknowledges its burden under 793.

And, what [Army Regulation] 380-5 indicates what is sensitive information, that the Government by necessity would have to prove. And, unauthorized possession of information under [Army Regulation] 380-5.

The fact that they are maybe in this instance, even if the Government is correct that there is another way of showing a violation of [Army Regulation] 380-5 without showing a violation of [18 U.S.C.] 793 is not important.

Arriaga talks about that. That does not indicate that this is not a lesser included offense.

As charged now, this is why it is important to see how the Government charges it, when they grabbed on the clause 1 and 2 language to these offense.

They have by necessity required…a [missed word] that this information could be…excuse me this information is prejudicial to the good order and discipline or service discredit.

And, as the Court knows especially from analysis of [Article] 134 and consideration by the Supreme Court in Parker v. Levy of the fact that we are concerned about the vagueness of [Article] 134.

The discussion within the clause 1 and 2 is that many of the offense that would normally have been found under clause 1 and 2 and [Army Regulation] 380-5 is an example of that.

The duty to obey the regulation and the violation of the regulation is the conduct prejudicial to good orderly disciple or service discredit.

So, again, this Court can look to see in clause 1 and 2 language as being the language that would bring in the first and second element of the [Army Regulation] 380-5 offenses.

Because, again that is exactly the conduct that would cause the Government to be able to prove that someone has done something service discrediting or prejudicial to good order and discipline.

This services discrediting is failing to abide or obey a general regulation…a lawful general regulation.

The prejudice to good order and discipline is the unauthorized disclosure.

That is the clause 1 and 2 language bringing in the first two elements of the [18 U.S.C.] 793 offense.

Now, turning to specification one of the Article 134 offense. This is the general [Article] 134 offense that the Government has alleged.

Even in this instance, [Army Regulation] 380-5 a violation of 380-5 would be a lesser included offense.

You would have the same argument for the first two elements with regards to the prejudicial order and discipline or service discrediting.

But, with regards to third element, again that is why we have to educate ourselves based upon how the Government has pled it.

In this case the Government has pled this as being a disclosure of information either wrongfully or wantonly causing intelligence to be published on the Internet.

And when you look at how they pled this and the day range that they pled this, it is clear they were basically pleading this as to all the other specifications.

Because, what they are trying to bring in, is basically all the information that Pfc. Manning may have allegedly disclosed either wrongfully or wantonly to WikiLeaks over this date range period of time.

The Government in their oral argument before indicated that the video was an example of information that was intelligence.

And, that was there way of getting around their previous motion regarding this specification.

But, they also acknowledge to the Court that additional information falls within the specification. They didn’t indicate what information.

When the Court looks at the date ranges it is clear it is all the other specifications…all the information that they are charging, they are bringing in under the general [Article] 134 offense.

And that is the defense laying out the various reasons why this Court did not find the [Article] 134 offense being improper because of the Article 92 and the existence of the 380-5 regulation is not problematic in this case, because, again, when you look at what the elements mean, they define the mens rea in this case by their alleging the specification wanton or wrongfully.

Wanton is defined in two other places within the bench book and the definition is the same. It is reckless but may connote willfulness or disregard the probably consequences, and that is describing a more aggravated offense.

Thus wanton as alleged in the clause 1 and 2 of the Article 134 offense, could potentially include both knowing, willful, or negligent.

So, even though it doesn’t use identical statutory language that is not problematic in this case, because it still can bring in the conduct that Pfc. Manning is being alleged to have committed.

And, again, just because there are different ways of potentially proving the greater offense is not problematic in this instance either, because of the fact that
Alstonand Jones indicate that it is not an issue if the greater offense can be proven in a different way.

The lesser included offense in this case as pled is still a lesser included offense. If the greater offense has other elements such as could be published or was published, or could be available to the enemy, that is not problematic either, because again greater offense can have additional elements.

It is clear by the way the Government has charged this that all three elements of an Article 92 offense would fit under a specification one of Charge II.

And, as such, if the panel members consider Pfc. Manning being potentially guilty of this offense, they should also have an ability to take a look at the potential of the lesser included offense.

And that is what the defense is saying our client has been placed on notice for, and we are specifically requesting support to instruct on those lesser included offenses.

Judge Lind

Alright. Now, lets look at the Government’s lesser included offenses. What is the defense’s position on those?

Defense (Coombs)

That would be [missed word] response motion is at Appellate Exhibit 105.

With regards to the Article 80’s. Here if…we would not dispute that under certain circumstance Article 80 could be a lesser included offense, but the as alleged in this case, I don’t see Article 80 being the lesser included offense.

It is kind of similar to if you had someone charged with premeditated murder. I don’t think attempted murder would be a lesser included offense if you actually have deceased person.

In this case, he is being charged with disclosing information, and under the Government’s theory it rises to the level of espionage.

With regards to the lesser included under the [18 U.S.C.] 641 offenses, we would concede that the misdemeanor offense less than the value of a thousand dollars could be a lesser included offense, certainly in a federal Court.

The defense did not find anything to indicate that when you brought in a clause 3 offense, that you were limited to the clause 3 offense.

So, unless the Court were inclined to indicate that that you were limited to simply to the clause 3 offense, it would seem that when you bring in the clause 3 offense you bring in the lesser included offenses to that.

With regards to the [18 U.S.C.] 1030 offenses, we will have a motion later today on that, assuming they survive, then we would agree that the general Article 134 offense, would be a lesser included offense to the 1030 offenses.

The [18 U.S.C.] 793 offenses and the [18 U.S.C.] 641 offenses for arguments that we have previously raised, we would say are not lesser included offenses.

The [18 U.S.C.] 793 offenses we would say under the authority of the United States v. Borunda. And our argument, in this instance, why the [Army Regulation] 380-5 Article 92 offense has to be a lesser included offense, that the Government could not create a clause 1 and 2 offense as an LIO [Lesser Included Offense].

With regards to the [18 U.S.C.] 641 offenses, we would say under our previous argument in United States v. Kick that the Government is pre-empted from creating a larceny like offense.

It is unclear from their motion, what conduct they would allege for the first element within the [Article] 134 offense but it is clear from the [18 U.S.C.] 641 offense in general that it would have to be larceny type offense.

And the [Wurst?] opinion squarely is on point here. Indicating that the Government cannot create it…a 134 offense. That is a larceny type offense. Article 121 creates the field in this regard.

Judge Lind

Now, talk to me a little more about…where are you [missed word] that talk about you believe that Article 134 can be a lesser included offense of the [18 U.S.C.] 1030 specifications?

With regards to…just the [Article] 134 for the [18 U.S.C.] 1030…?

Judge Lind

…Yes.

Defense (Coombs)

Judge Lind

Lets go, exactly the way they did it? Let’s use theirs first.

Prosecution (Morrow)

Your Honor, Article 92 is not a lesser included offense for the 793 offenses or specification of one of Charge II.

The elements test is clear.

First, you have to identify the elements, either in specification or in the statute. And then after the elements are actually defined, compare those elements, and determine whether or not the alleged lesser included offense, is a subset of the greater offense.

All the elements of the lesser offense are also elements of the great offense, and their lesser included offense is proper. Put another way, it is impossible to prove the greater offense, without first proving the lesser offense.

As lesser included offense’s instructions know. However, where the lesser included offense requires elements not required for the greater offense, then no lesser included offense is required.

Judge Lind

Then how in this case would it be possible to prove [18 U.S.C.] 793(e) without proving an 92 violation?

Prosecution (Morrow)

The defense argues that the unauthorized possession piece of the 793 offense necessarily implicated 380-5, but it is not correct.

Not only is [Army Regulation] 380-5 not included in the statute of the elements test, or under the specification, again, under the elements test.

There are additional ways to prove unauthorized possession. So, this is a fact the defense is arguing. The defense is arguing a fact based argument not under the elements test, you Honor.

Judge Lind

Okay.

Prosecution (Morrow)

So, again with the defenses’ proposed LIO’s [Lesser Included Offenses] for Article 92, the elements of a proper Article 92 offense in violation of [Army Regulation] 380-5 require the existence of a AR [Army Regulation] 380-5 and also the Accused duty to obey that regulation.

Here, the specification nor the statute require those elements. So, now I am turning your Honor, to the Government, the first LIO’s [Lesser Included Offenses].

I am following the same element’s test outlined in Jones. And before I mention the Medina case, the Appeal to the Armed Forces case, and in that case, they determined that clause 1 and 2 are Article 134 are not inherent lesser included offenses of clause three offense, but instead, depending on the specification they may be.

Here, clauses 1 and 2 are actually included in the specification, so accordingly they should be considered lesser included offenses.

Judge Lind

Now, the [missed word] in Medina case it does say that…alright [Article] 134 may be lesser included offenses…So do you read the language where it says similarly “in a contested case” and reviewed court is here considering on appeal “must consider whether or not the prosecution proceeded on the premise or theory that the conduct alleged under clause 3 was also prejudicial to good order [and discipline] or service discrediting.”?

Here we are considering whether to affirm it. And, in such case the members will have normally been instructed as to the alternative theory.

The issue here is not whether or not the [18 U.S.C.] 793 offense as charged is a 92 offense, the Court [missed word] foreclose that issue.

Instead, the defense is arguing that it propose a lesser included offense, not address in Borunda, should be an Article 92 offense to the inclusion of Article 134.

The prosecution’s position is you cannot, you should not read Borunda to apply a lesser included offense, but instead to the actual charged offense, as the language of Borunda indicates.

Further, even assuming that Borunda does apply to lesser included offenses, the issue of whether or not they [missed word] prove [missed word] the clause the lesser included offenses…clause 1 and 2…is a violation of 380-5.

If the panel does not find that the information for the specification is alleged that the information is classified, for instance, and that it is national defense information…if the panel does not conclude that it is neither classified nor national defense information, it would fall outside the purview of [Army Regulation] 380-5.

Prosecution (Morrow)

I think that would be an issue of instructions. We will get to that, your Honor. And the Government will be prepared on that front to argue the [missed word] instructions which should be given for that particular offense.

For here, we are talking, this being the elements test. Then this should be a lesser included offense, and then again instructions when we get to that phase in the motion’s practice, we will be ready to talk with you about it.

Judge Lind

Alright. [missed word] looking at the wording of specification with the language in violation of 18 U.S.C. 793 as the portion that is submitted from the specification, if I misunderstood you…I thought you were taking out different parts of this specification in your lesser included offense.

For example, unauthorized possession such as information related to the national defense. Is it the Government’s position that that language is going to be stripped out in the lesser included offense?

Prosecution (Morrow)

It could be your Honor for lesser included offense. Yes, Ma’am.

Judge Lind

So, is the Government proposing multiple national security…or is it multiple…or lesser included offenses with the only excepting unauthorized possession…excepting relation to the national defense?

Prosecution (Morrow)

The Government argued that if the panel does not find the information…as the specification alleges so…is classified and that it is national defense information…that would it would fall outside of the defense’s theory that if it only be an Article 92…what the Borunda rather precludes because 1 and 2 elements.

So, the Government’s position with regarding to the language of the lesser included offense, we would argue would be an issue when we get to instructions, you Honor. And, the Government would be ready at that time.

Judge Lind

Alright. Proceed.

Prosecution (Morrow)

And, your Honor. Just very briefly to comment on the [18 U.S.C.] 641 issue. The defense argues and I know we have already dealt with the pre-emption doctrine before, your Honor, so I will spare your time about what is the pre-emption doctrine analysis, but here the acute of misconduct is not publishable by Article 121.

That the accused is not charged with capitalizing. Take [missed word] like Article 121 punishments, so this actually would fall outside the purview of Article 121, which the defense argues preempts the [18 U.S.C.] 641 offenses.

Your Honor, if you look, the Bench book does under the [Article] 121 portion of the Bench book, it does specify that in Note 19, 3-46-1 or in larceny Article 121.

So, it lays out the elements of burglary and then it takes a look at as charged. And there the Court says, regardless of whether one looks at strictly to the statutory elements or to the elements as charged, that house breaking is a lesser included offense of burglary.

Alright. The Court is in recess till 13:30.

ALL RISE.

Judge Lind

Carry on.

ALL RISE

Judge Lind

Please be seated. This Article 39(a) session is called to order, let the record reflect all parties present when the Court last recessed. [missed sentence]

Alright, at issue now is the defense motion to dismiss specifications that are in violation of Title 18 U.S.C. 1030.

Defense (Coombs)

And that should be Appellate Exhibit 90 and 92 for the defense.

Judge Lind

Okay. Alright, I have Appellate Exhibit 90 is the defense Motion to Dismiss for Failure to State an Offense Specifications 13 and 14 of Charge II.

Appellate Exhibit 91 is the Government Response to the defense Motion to Dismiss Specifications 13 and 14 of Charge II. And, Appellate Exhibit 92 the Defense Reply. Okay, one moment. Please proceed.

Defense (Coombs)

Ma’am, the defense requests this Court to dismiss the 18 U.S.C. 1030 offenses, Specifications 13 and 14 of Charge II for failing to state an offense. The Government alleges that Pfc. Manning exceeded his authorized access when he violated his terms of use in accessing information on a computer.

Even if that were true that would not state an offense under 18 U.S.C. 1030. This motion and pretty much the specifications turn on what does the term “exceeds authorized access” mean for purposes of 18 U.S.C. 1030.

And when the Court is trying to determine the meaning of a statute. United States v. [Star?] military case that we cited controls for statutory interpretation.

And in accordance with [Star?] and I will use my opportunity at this point to go through the guidance that [Star?] provides in order to argue why this Court should in fact dismiss the specifications.

I will first start off discussing the plain language of the statute. Then, I will go to legislative history. Then the case law.

Then the rule of lenity. And, then finally the constitutional implications of the Government’s interpretation.

So, starting first Ma’am the plain language of 1030.

Congress defines within section 18
U.S.C. 1030(e)(6) what the term exceeds authorized access means.

And, under that bridge the Congress states, the term exceeds authorized access means to access a computer with authorization, and to use such access to obtain or alter information in the computer, that the accessor is not entitled to so obtain or alter.

That is the definition that is applied for 18 U.S.C. 1030, and it is intended to apply to all the statutes in 18 U.S.C. 1030.

This language is plain and unambiguous, and what it basically says that you exceed your authorized access when you go to some place within the computer by bypassing perhaps a technical restriction or by hacking into the computer and obtaining information that you do not have authorized access to.

For instance, if my client had used his access on the SIPRNet that hacked into another section of the SIPRNet that he did not have authorization to by either going around the password requirements, or by somehow guessing at the password.

That would be an example of exceeding authorized access under [18 U.S.C.] 1030.

[18 U.S.C.]1030 is not intended to address misappropriation of information, or misuse of a computer. It is intended to address unauthorized access to a computer.

That is the purpose of [18 U.S.C.] 1030. It is clear. It is not ambiguous, and the defense would argue that based upon that, that the allegations of the Government that exceeding a Term of Use, does not state an offense.

If the Court believes that the terminology within [18 U.S.C.] 1030(e)(6) is not unambiguous, then you would go to the legislative history in order to determine what did Congress mean by that section.

And, in this instance, the legislative history fully supports the defenses interpretation. In 1984 1030 was enacted, and going back to that time period. That is really when we have an explosion of computer use.

And, so Congress was attempting a crime that had not that had not really been previously on the books, and that was hacking into computers. It was basically to try to go after computer hackers.

But, within the 1984 version, it stated the following: That a person who normally access a computer without authorization, and that the first way, or the second way, having accessed a computer with authorization, uses the opportunity such access provides, for purposes to which such authorization does not extend.

A 1984 version would have in fact supported the Government’s interpretation now.

But Congress amended that in the 1986 and then replaced that phrase, or having accessed a computer with authorization, using the opportunity such access provides for purposes to which such authorization does not extend, with the phrase, or exceeds authorized access.

And when you look at the legislative history behind that it is clear that Congress’ intent was to eliminate the misappropriation aspect of [18 U.S.C.] 1030.

And when you look at the change, at least from the Senate report, which the defense cited, both from Senators Mathias and Leahy.

They commented favorably on the change of substitution the words exceeds authorized access for the pre-1986 language.

And they stated this would eliminate coverage for unauthorized access that aims at purposes to which such authorization does not extend.

This removes from the sweep of the statutes one of the murkier grounds of liability under which a Government employee’s access to a computerized data might be legitimate in some circumstances, but in other circumstances criminal.

And, you look at that…what they are basically saying is that we eliminated the ground that would require somebody to take a look at the subjective intent of somebody…

Judge Lind

Let me ask you a quick question on that one. [missed word] the Government brief, but it says that that portion that you just read to me was only applicable to [18 U.S.C.] 1030(a)(3) or 1030(a)(3) not 1030(a)(1) or (2). Can you address that?

Defense (Coombs)

Well, with regards to that language of the change, when Congress made the change that is when they put in 1030(e)(6), exceeds authorized access.

And, that was intended then to provide the definition to all the other sections. So, that may be correct that initially that language was only applicable to that particular section, which even further bolster the defense’s position that that was the section where Congress was concerned about somebody basically misappropriating information.

But, then Congress decided to eliminate that entire aspect of it, because it does turn on the subjective intent of the person.

So, if I go to a computer, and I access information, and then later decide that I am going to use it in an inappropriate way, where my authorization for use, does not apply, I have not committed a [18 U.S.C.] 1030 offense.

But, if somebody else when they access that information, apparently has that improper purpose in their mind, the various objective intent, they have committed a [18 U.S.C.] 1030 offense.

And, when Congress looked at that, that is the murkier grounds by [missed word] they were concerned about.

And, by eliminating that, they made this not a misappropriations statute or misuse statute. There are plenty of laws on the books to address that.

They left this as unauthorized access statute, a computer hacker statute. Congress even further clarified this change in 1996, when it very helpfully for the defenses purposes, clarified the interplay between the section of [18 U.S.C.] 1030, and the espionage statute.

They stated that [18 U.S.C.]1030(a)(1) would target those persons who deliberately break into a computer to obtain properly classified Government secrets and then peddle those secrets to others, including foreign governments.

In this sense then, it is the use of the computer which is being prescribed, and not the unauthorized possession of access to or control over classified information.

So, again, Congress indicated that, “Look, we’ve got espionage statutes addressing misappropriation of information…misuse of information.” This 1030 is designed to address unauthorized access, mean breaking into a computer.

When you look at even the definition of…well actually the name of the statute, Computer Fraud and Abuse Act, this isn’t a misappropriation of information act, this is the computer fraud and abuse act.

And, when you look at it, it really is very similar to our trespass laws for real property. We have trespass laws for real property, and then we have larceny for the personal property that you might steal.

So, if you go on somebody’s land, you might make a trespass, if you didn’t have authorization. You steal something from there, then you committed a larceny.

Here, this was Congress’ way of doing a trespass statute for computers. You [missed word] into a computer that you are not unauthorized to, you have committed a trespass, you have committed a violation of the Computer Fraud and Abuse Act.

If you then steal something from there, or misappropriate the information in some way, you have will not committed some [missed word] offense, in this case it may be a 730 offense, a 793 offense.

It may be a [Army Regulation] 380-5 offense, but it certainly is not a [18 U.S.C.] 1030 offense.

This is also kind of similar to the idea, if your Honor would entertain burglary.

If you were a person who goes to somebody’s house at night without authorization with the intent to commit a crime, and you break in.

It is burglary. If you go to a person’s house, being invited, even with the intent to commit an offense.

And, you steal something inside someone’s house. You haven’t committed a burglary, you have committed a larceny, because you an invitation to come into the house. It is no different here.

The Government is not looking to intent, if Pfc. Manning did not have the authorization to go to that particular area, to look at that information. There was no password.

There was no hacking in. There was no bypassing any technical restrictions. They are going to rest on the idea that he violated his Terms of Use. That is not what 1030 was designed to address.

Judge Lind

So, is it the defense position that the use banner that the Accused accessed as he was going in, is not an unauthorized access?

Defense (Coombs)

That is correct, Ma’am, because that…and the Government says something like “explicit…implicit” and they try to make it by definition that is not really there.

But, the Terms of Use that you may have..you may violate terms of use…that is not the unauthorized access that 1030 was designed to address.

And, actually when I get to the implications of the Government’s position I can show that more fully.

So, notwithstanding the actual statute in plain language, unambiguous. And, look at the legislative history clearly, indicating what Congress was intending to do. Case law also supports the defense’s position in this regard.

Most notably, the 9th Circuit, just over a month ago, decided the Nosal case. And, in that case, the 9th Circuit, en blanc, considered this very issue: What does exceed authorized access mean?

And the Court stated that exceeds authorized access, within the Computer Fraud and Abuse Act is limited to violations of restrictions on access to information, not restrictions on its use.

The 9th Circuit found that the interpretation of exceeds authorized access to be more consistent with the statutory language and the structure of the Computer Fraud and Abuse Act, as well as the legislative history.

In this instance, even the 9th Circuit considering this, indicated that this is a exceeds authorized access, not a terms of use for a misappropriation statute.

Notwithstanding this, if you take a look at the other cases that in spite of the legislative history, in spite of the Congress’ clear intent, and the language of the statute, the John and Rodriguez case, which the defense gives to the Government…

These cases the defense submits are wrongfully decided. And, if the Court looks at them, both cases…you will see, it is a very unsophisticated analysis by the Circuits.

They don’t address at all the legislative history. In fact, and most importantly, they do not even discuss the 1986 change to the statute, where Congress subtracted the clear language that addressed the improper use with a exceeds authorized access.

So, the case law in this regard, in all the cases that we have cited, clearly support that this is a exceeds authorized access and not a terms of use or misappropriation statute.

And, in spite of the language, legislative history and case law, if there is any ambiguity still left, then as the Court knows you go to the rule of lenity In this regard the defense submits that you would have to resort to the rule of lenity.

But, if the Court is going to go to that, then the rule of [lemity?] requires that if the…there are two ways in which we can interpret a statute. One is more broad, and one that is narrow.

The Court should apply the one that is narrow, in order to scoop in the least amount of [missed word]. In this case, that is exactly what the 9th Circuit did in Nosal.

It stated in, and what the Court should also determine, that is Congress really wanted to make this a misappropriation liability statute, where restrictions on term of use, really control whether or not you in fact committed a violation of [18 U.S.C.] 1030, then the Congress should have spoke in a more clearer language.

The Court should resist the urge of lifting the legislative pin of in order to go with the Government on its argument that this is actually a misappropriations statute.

And, here I would like to talk about the expansive reading of exceeds authorized access. If in fact we go with what the Government would have this Court determine, then you would have a problem with [18 U.S.C.] 1030, not being internally consistent.

And, in fact, you would have a problem with [18 U.S.C.] 1030 being unconstitutional at least in one of its provisions, because of the interpretation. Again, 1030 has to apply to all of the provisions.

When you look at [18 U.S.C.] 1030(a)(2)(c), that controls exceeding authorized access by obtaining information from a protected computer.

Congress the defines the protected computer, as being basically a computer connected Interstate Commerce, the Internet.

So, as Nosal would have that law of saying that all of the people will be swept into the statute if it really were a misappropriations statute, anytime you violated a term of use of any sort of computer, whether it be your employer or in banking, or in…

We have seen the case and we cited it, where somebody lied about their age and even their gender on a Web site and was prosecuted for that under [18 U.S.C.] 1030.

The 9th Circuit said that is the concern.

This is constitutionally vague in that regard. But even set away from those types of thought processes, lets just go with the Government’s banner, where they say, because you go to that computer, and you see a little banner, and you click ok and you go forward, if you immediately lose apparently your right to do anything, and if you do anything inconsistent with your authorized use.

Well, if the Court wants to see a clear example of why that would not be really play out, all you have to do is look at Appellate Exhibit 56.

This is the prosecution’s notice to the Court of the computer forensics regarding the programs and the music and the videos that was not authorized on the Government computer, and this is just the list of it from a very few amount of computers that we have been able to find and do forensics on.

So, presumably every person here who has downloaded music or a video or some program has exceeded authorized access under the Government’s version, because they have done something that the little banner that comes up there, prevents you from doing.

Judge Lind

Is there a regulation that talks about when you can use computers for personal use?

Defense (Coombs)

I believe and this is going back to my [missed word] days, but I believe it is [Army Regulation] 600-20. And…

Judge Lind

…Well, that is where I am going. Is there any.. [missed word] is not authorized to do that?

Defense (Coombs)

Right. I believe that within the regulation from my memory and I would have to check, but it talks about that the ordinary [missed word] like a phone, puts in a phone and calls home, even thought it is a Government phone, but we are going to allowed people to do that, but we are not going to force them to go outside and use their cell phone.

Likewise perhaps even in the use of your computer check your personal email, might be personal, might be fine.

The problem here is that, that is not is what we have in that computation. We have actual downloading the videos, games, music, nothing that I would say that authorized that.

And, so clearly there the soldiers have exceeded their authorized use, but they haven’t committed a [18 U.S.C.] 1030 violation.

So, when you look at all of this, it clearly supports the defense’s position on how the Court should interpret [18 U.S.C.] 1030.

But, lastly I will end with academic commentary in this area. 1030 prior to this case, was not something the defense was even aware of.

And as we started educating ourselves on this, we quickly came across the Professor Orin Kerr.

Professor Orin Kerr is probably thought more about this section and the statute than anybody on this planet.

I mean he has written extensively in this area. And, as you do research on him, you start to feel inadequate given his age and his accomplishments.

But, as you look there, he kindly indicates that…and he is our countries foremost expert in this field.

Exceeds authorized access should not be interpreted so as to allow for an inquiry into whether the Accused violated a computer owner’s terms of use.

Rather section [18 U.S.C.] 1030 should only capture whether the user bypassed technical restrictions, so as to access information that he was not entitled to so access.

Then Professor Kerr creates what he calls access that circumvents restrictions convictions by code.

What he said is when a user circumvents regulation by code, she tricks the computer into getting her greater privileges than she is entitled to receive. This normally can occur two ways.

First, the user can enter the username and password [missed word] with greater privileges. Or, second the user can exploit a design flaw in the software, that leads to the software to grant the computer user greater privileges than they otherwise should be entitled.

But, what Orin Kerr says is the abuse descriptions placed upon the computer by the employer does not control they have a 1030 violation.

And, really look at that, that is the only way that it can make sense for the Computer Fraud and Abuse Act.

So, the defense requests this Court to consider the motions that we have cited, in fact we probably written more criticizing the John and Rodriguez case, then the John‘s and Rodriguez case wrote to discuss the analysis that the Government wants you to support.

So, in this case it would just be a failure to state an offense, not an evidentiary issue, because the defense would be for the purpose of this motion, conceding each of the facts that the Government would like to allege in this case.

There is user banner that the individual saw. That the individual went to the area that he is authorized to go to but went there with the improper purpose, and then obtained the information.

All that, even assuming it to be true, does not allege a [18 U.S.C.] 1030 violation.

And so, as the Nosal Court said, the correct result in that should be a dismissal of the offense, not a later [R.C.M.] 917 motion.

Judge Lind

Well, I guess that is where I am looking at this. Does the military even notice any jurisdiction?

The pleading alleges an offense, and I see no plea flaw that does what the Nosal Court did in the military. Are you aware of any?

Defense (Coombs)

Well, I think…I would have to get back to see I could find somehow.

I would probably say that under R.C.M. [Rules for Court Martial] 801, the inherent authority within the military judges power, when I judge is looking at how these rules should be interpreted.

You also look at R.C.M. [Rules for Court Martial], I believe it is 103 that the R.C.M.s and the M.R.E.s [Military Rules for Evidence] have to be interpreted in order to achieve a just outcome.

If the Government were alleging a specification that if the Court said, “Look, Government I assume all the facts you want me to.

You are not alleging an offense then. You haven’t alleged, even assuming your facts.

There is no way I could let a panel come back with a finding of guilty on that. Then they show justice in this case, an accused should not be facing an offense, that the Court already knows would never survive a [Rules for Court Martial, R.C.M.] 917 motion right out of the gate.

If there is a factual issue that may, I guess, go over that hurdle of [R.C.M.] 917 then if the Court should in fact wait to see what a panel does, and then see how the facts play out.

But, in this instance, assuming every fact that the Government would ever want to hope for with regards to the access as far as the news or privileges and what not, there is nothing that they alleging that Pfc. Manning did that falls within the violation of [18 U.S.C.] 1030.

So, if you took [18 U.S.C.] 1030 out of play, you said that they alleged that he committed a…let’s say a murder offense.

And, you ask, “Okay, who is the person you are saying that he killed?” And, there is no facts, no support, no information.

This Court would not allow the Government to start its case with…even if though they might have allege that a specification on its face looks fine, but once you see their supporting facts or theory for it…even assuming all the facts for them, this Court would say, “No.” I would grant a [Rules for Court Martial, R.C.M.] 917.

So, in this instance we would say fairness would require specifications to be dismissed.

Judge Lind

Alright. Thank you.

Defense (Coombs)

Thank you.

Prosecution (Morrow)

Your Honor, the Government opposes the defense Motion to Dismiss Specification 13 and 14.

The Government’s theory that the accused exceeded authorized access under 18 U.S.C. 1030 is consistent with statutory text, legislative history, and case law interpretations.

Before the Government begins arguing on those three points, the [missed word] the [missed word] theory of exceeding authorized access.

During the Article 32 investigation, the Government presented evidence relating to the limitations on the Accused access to Government computers.

The first was the warming banner as the defense and Court discussed earlier.

And, that warning banner was on both of the Accused SIPRNet computers. every time the Accused logged on to his Government computer using a password he was presented with that warning band.

And, the first sentence of that warning band stated the following: “You are accessing a United States Government (USG) information system that is provided for U.S. Government authorized use only.”

Before proceeding, the Accused was required to click, “OK” on that window.

That is included too in the Government’s brief.

Judge Lind

Let me stop you there for a second. The hypothetical…the fact that the 9th Circuit basically in Nosal and the defense argument to me with showing me [Appellate] Exhibit 56.

So, any soldier who accesses a computer and puts a song on the computer can now be prosecuted under this statute?

Prosecution (Morrow)

Well the Government’s position in that case, you Honor, would be…because they downloaded…[missed word] they downloaded a song, while they are sitting in the S.C.I.F. that doesn’t necessarily mean they accessed a computer for an improper purpose. That is something entirely different.

That maybe, “Geese, you shouldn’t have music on your computer, but…” accessing your computer for an improper purpose then going and downloading 250,000 cables is something entirely different.

Judge Lind

I understand. But, when we are looking at the definitions as applied every section of that statute.

Prosecution (Morrow)

I understand, your Honor.

Judge Lind

Is the Government suggesting that I should look differently to the sections of that statute?

Prosecution (Morrow)

No. We are not. I am suggesting that in that case, in that…if indeed the purpose of the individual at the time they accessed the computer was to obtain information from another protected computer, and not..again, I don’t know, you know, that is not necessarily a protected computer.

I don’t know how music comes from a protected computer. But, that is what at lease 1030(a)(2) sees as.

You have…the statute is intentionally…I am not going to read it but…it’s intentionally…one moment, you Honor.

It is intentionally accessing computer without authorization or exceeds authorized access and thereby obtains information from any protected computer.

First of all, when we [missed word] in that example presented by Mr. Coombs, I don’t think a SIPRNet computer affects Interstate Commerce, which is why it protects a computer at least under the definition.

But, I mean, that is what I resolve, in my opinion, but…

Judge Lind

Okay. Alright.

Prosecution (Morrow)

Additionally, the Accused and members of his unit were required to sign a user agreement, and acceptable use policy prior to being granted access to the Internet and SIPRNet.

In fact, the best exception of the Accused unit used signed AUPs, so Acceptable Use Policies, of soldiers to create network accounts.

And, the Army’s sample AUP, which was provided in the Government’s brief require users to sign a document that states that “access to this/these networks is for official use and authorized purposes.”

So, again, that is two separate limitations…purpose based limitations on the Accused’s access to computers.

So, with that said, the Government’s theory simply stated is this.

Because the Accused had access to a SIPRNet, computers was governed by a purpose based limitation or access restriction, the Accused exceeded his authorized access when he accessed the SIPRNet computers for an unauthorized or improper purpose.

For once, the defense and Government can be agreed on [missed word] of statutory interpretations, so I will just move to the statutory text first.

Describing point as the defense noted as the plain or ordinary language, under [18 U.S.C.] 1030(a)(6) as the defense stated exceeds authorized access, mean to access a computer with authorization and to use such access to obtain or alter information in the computer, that the accessor is not entitled so to obtain or alter.

So, the basic difference between the United States and the defense is this.

The Government maintains at least that some effect must be given to the word, “so,” in the definition. Must have something dependent on it.

And as such, the only reasonable effect to be given, “so,” is that “so” means in the state or manner indicating or expressed, as defined by Webster’s [Dictionary].

And, given that meaning, the individual exceeds authorized access when he or she obtains or alters information that he or she is not entitled to obtain or alter in those circumstances or in that manner.

The individual user may have been entitled to obtain information in some other circumstances, but in that manner or under those circumstances.

And, when that definition would do, is that it would encompasses a scenario where an insider bypasses some technical restriction, so in that manner.

And, [missed word] when an insider uses is or accesses his computer for an improper or unauthorized purpose it should be those circumstances.

To the second [missed word], the defense believes this Court should use the word, “so” entirely out of definition of exceeds authorized access.

The Government maintains, and this Court should find that, that is improper. That effect should be viewed as wrong by the statute provisions, so that no part is inoperative or superfluous.

Judge Lind

What is the Government’s position with regards to the Nosal case when they discuss that word “so” in a variety of manners on page four?

Prosecution (Morrow)

That is true your Honor, and I can talk about Nosal right now, but I think there are serious flaws, in my humble opinion.

I think the opinion is flawed. First, they agree, so “so” can be given any number of opinions.

And in fact, what the Nosal Court said is that the definition of exceeds authorized access is actually susceptible to the Government’s interpretation. It is right there in their brief.

So, this is what they started with. They said “so” [missed word] some meaning, some think that it is ambiguous.

And, instead of as the basic [missed word] of statutory interpretation says…instead of taking that ambiguous…what they think is ambiguous language…and moving to the legislative history, they did a [missed word], and they started talking about all these other…all the other ways that…as the defense agrees or thinks, that the statute is unconstitutionally vague or problematic.

So, in that sense it really did not consider the legislative history.

I know, you know, the defense believes that they did consider the legislative history but there are parts of the legislative history that are very important to this case, and to this Court’s analysis that they did not even cite or consider. Defense didn’t cite in 44 pages of single space brief.

Judge Lind

And, what would those be?

Prosecution (Morrow)

In 1984, the predecessor to the Computer Fraud and Abuse Act was the Counterfeit, Access Devise, and Fraud and Abuse Act.

And, so that version punishes the defense stated whoever has any access to a computer with authorization, [and] used the opportunity such access provides for the purpose to which his authorization does not extend.

And as the defense conceded, if we were before this Court in 1984 and that was the language used in the statute, there would be no question that the alleged misconduct in this case would fall squarely within the language of the statute.

So, in 1986 Congress passed the CFAA, the Computer Fraud and Abuse Act, and that Act provides and added to 18 U.S.C. 1030.

And at that time, the term exceeds authorized access was introduced to 1030(a)(1) and (a)(2). And in 1986 bill explained the introduction in this way, and that is on page 2486 of the report.

Section 2(c) substitutes the phrase exceeds authorized access for the more cumbersome phrase in present 18 U.S.C. 1030 (a)(1) and (2), where having accessed a computer with authorization, uses the opportunity such access provides for purposes to which the authorization does not extend.

The Committee intends this change to simplify the language of 18 U.S.C. 1030(a)(1) and (2), and the phrase exceeds authorized access is defines separately in section (2)(g) of the bill.

Okay. It is worth having [missed word] again, so as I just stated, Congress substituted the phrase for the more cumbersome phrase in the 1984 version, and they intended that change to simplify the language.

And as I stated earlier, the defense wants the Court to focus on a comment plucked from another statute on the Senate report.

So, if I can just describe what the other statute was, your Honor. But, the Senate report was essentially two statutes.

It was the full committee’s report and then it was the additional views of Senators Mathias and Leahy.

And, that section was actually voted to [18 U.S.C.] 1030(a)(3). It is clear, in fact the full committee even addresses this as well.

The Senators had a specific [missed word] on [18 U.S.C.] 1030(a)(3).

Specifically with respect to the Government realizing a federal employee, who for example, is responding to a FOIA request, and uses there Government computer to access the information, that technically they are not entitled to access.

And so, the full committee report that explained that fear in this way.

“The Committee wishes to be very precise about who may be prosecuted under the new subsection (a)(3)”

So, the new sub…just to back up for a second, the new subsection (a)(3) removed exceeds authorized access from that provision.

It only became a without authorization [30-85?].

The committee was concerned that a federal crimes statute could not be so broad as to create a risk that Government employees and others who were authorized to use a federal computer, would face prosecution for acts of computer access and use that while technically wrong, should not last to the level of criminal conduct.

So, with the new [missed word] did was it eliminated prosecutions to those without authorized access to federal computers.

And, in doing so, it removed what Senators Leahy and Matthias described as the murkier ground for liability under (a)(3) only.

So, it removed again, it removed exceeds authorized access from (a)(3) only. And, we know…we know really intended exceeds authorized access from bypassing…being more than bypassing some technical restriction, as the defense alleges.

On the same page of the report, from the Senate bill, says 2485 of the report…discussing the removal of predecessor to exceeds authorized access from subsection (a)(3), the committee explained that removal in this way.

“It is not difficult to envision an employee or other individual who while authorized to use the particular computer in one department, briefly exceeds his authorized access and produces data belonging to a department that he is not suppose to look at.

That doesn’t indicate bypassing some technical restriction at all. The Government maintains your Honor, that the legislative history very clearly…very clearly supports the Government’s interpretation of exceeds authorized access.

And, what this really amounts to your Honor is, the United States is asking this Court to rely the holding of the full Senate report.

And, the defense is asking this Court to essentially cite or rely on [missed word] from current day.

As for case law, you Honor, I think I have already been over this, you Honor, but as you are aware there is [missed word] the Circuits put on this issue.

The 5th and 11th Circuits have adopted the Government’s interpretations, and the 9th Circuit in the Nosal case has adopted the defense’s interpretation.

Judge Lind

[missed word] again, I haven’t looked at every case involved in this issue, but I did read the law review [missed word] that were provided.

With respect to academic commentary, so the statement or Professor Kerr’s argument, but uh…what is apparent to the Government from reading the article is that Professor Kerr believes that the law should only criminalize bypassing some technical restriction.

It essentially a proposal to make the law better. And, again that is not this Court’s inquiry.

This Court’s inquiry is trying to determine what Congress meant by exceeds authorized access in the first place.

And, of course we are not saying that the statute is perfect in every respect, but again, that is not this Court’s inquiry.

Finally, you Honor, the defense takes issue with trying to discern, the subjective intent of a user when accessing a computer, and I would just simply state that it is the Computer Fraud and Abuse Act.

Fraud requires us to look at subjective intent of a person.

Judge Lind

How will you address the legislative history in 1996, when Congress talks about the although there is considerable overlap to 18 U.S.C 793(e) and section 1030(a)(1), as amended by the NII [National Information Infrastructure] Protection Act the two statutes do not reach the same conduct, section 1030(a)(1) to target those persons who deliberately break into a computer to obtain properly classified Government secrets and then try to peddle those secrets to others including foreign governments.

We are not talking about somebody, an employee who takes a file, you know, in the copier room, makes some copies, puts this in their coat and walks out.

We are talking about the use of a computer in a very dangerous way.

So, in that sense, I don’t think there is anything consistent with the statement in 1996. I guess, we are criminalizing the use of a computer.

But, we are criminalizing the use of a computer that downloaded a lot of classified information.

Judge Lind

Again, one thing [missed word] about, there is two…there is a broad definition and a narrow definition. The broad definitions is that exceeds authorized applies to people who are authorized to use the computer, but do so for an unauthorized purpose.

The narrow definition would be exceeds authorized would apply to inside hackers, individuals whose initial access to a computer is authorized, but they access unauthorized information or files.

If I were to give the narrow definition in my instructions, does the Government contend that its evidence can survive a [Rules for Court Martial, R.C.M.] 917 motion?

Prosecution (Morrow)

Well, there are other considerations. I mean if that is the case your Honor, and you would like an ability to discuss that further.

[missed word] I agree with the defense with respect that if we are not talking about some of the other facts in this case, and we are relying strictly on the warning banner and the Acceptable Use Policy, and establishing that the Accused accessed a computer for improper purpose, if it is just that, I guess I don’t think the narrow would be…the narrow definition would…what I have talked with for today about…I don’t think that would survive a [Rules for Court Martial, R.C.M] 917.

Just briefly your Honor. With regards to the Government’s “so” argument, indicating that this Court should ascribe a definition to the word “so”…this it is important to see where the Government’s argument came from.

This argument…no Court has raised this argument other than Nosal one.

Nosal one was the Court that gave the Government its argument and then an en blanc Court in very short order reversed Nosal one.

So, the Government’s argument of “so” and ascribing a definition to that two letter word, and making it carry to make this now a misappropriation act.

The only case that has ever looked at way, and that is apparently the Government’s legislative history of why this now should be interpreted that way was Nosal one.

Which Nosal one said that, that two other word carried the day, and again the en blanc Court came back quickly and said, “No.”

The other two cases that the Government, primarily relies upon, the John and Rodriguez case…neither one of those cases cite the word, “so” as being important to the statutory interpretation.

Not only that, Rodriguez Court, if you take a look at their opinion, they even omit the word “so” from their definition of and quotation of 1030(e)(6).

Clearly indicating that the word “so”…contrary to what the Government is trying to say, is not an important word in the statute.

The Government says we are trying to basically ignore that word, we are not. We stated in our motion, much like the Nosal Court stated that, that word can be a connector.

When the Government starts looking at “so” and asking this Court to just use the legislative history, they are the one’s who are asking the Court read in a definition of the legislative history to the word “so” that the legislative history does not support.

What is telling is that…and unfortunately for the Government…is that they don’t have one case that cites the legislative history would support them. Not one case.

But then on a case that indicates that their interpretation of the legislative history is correct.

We have cited dozens of cases indicating that that is not the legislative history.

So, as Captain Morrow is that the 9th Circuit is wrong, and that his interpretation of the legislative history is correct.

He doesn’t have a case that backs him up on that. It is his opinion.

With regards to the cases with the 50/50 split that the Court talks about…it is important to see which of those cases are criminal and which are civil.

Civil cases tend to be quick and short with their interpretation of [18 U.S.C.] 1030 because there is not a person’s life at stake.

It is usually a monetary issue, and it almost becomes a fairness issue.

If you misappropriated another company’s intellectual property Courts usually err on the side of righting that wrong.

But, when you look at cases other than John Rodriguez that the Government cites, and there are four of them.

And, I will provide those four cases for the Court. It is the Continental case, the Salum case, the Registered case, and the Czubinskicase.

These are the other case that the Government wants you to say support their interpretation.

These are the four other cases of the John and Rodriguez. None of these cases go into any legislative history whatsoever.

None of them cite the word “so” as being important to their determination of what [18 U.S.C.] 1030 should apply.

So, not marking this as an exhibit, but just providing this to the Court, as far as case law for you to look at.

Judge Lind

Thank you.

What is the defense…again I am going back to the 1996 legislative history…where they amended…actually amended section [18 U.S.C.] 1030(a)(1) and part of that says that the amendment specifically governs the conduct of a person who deliberately breaks into a computer without authority or an insider to exceeds authorized access and thereby obtains classified information and then gives the information to another person or retains it without delivering it to the proper authorities.

Defense (Coombs)

Professor Orin Kerr talks about the correct interpretation of (a)(1)1030, goes into the legislative history.

The cases we cite…and Nosal, contrary to what Captain Morrow says does in fact take a look, a long look at the legislative history, much more so than John Rodriguez do.

And, when you look at that, what they are taking about is the person who breaks into the computer, or the person who is the insider hacker, who as Orin Kerr talks about, uses their initial access, then to trick the computer the computer into giving them greater access to an area that they otherwise are not authorized to go to.

Or, uses someone else’s user name and password in order to get back information that they are not otherwise authorized to go to.

That is what [18 U.S.C.] 1030 is designed to protect against.

So, it is the unauthorized access person, a person who has absolutely no access, the hacker; and it is the inside hacker, who, even though they have authorization to access the computer, they extend their authorized access in some way by a technical bypass way.

Again, either bypassing, the other one is protected restrictions, or by using some information that gives them greater access.

So, in this case, if the Government’s case from evidence were that Pfc. Manning went to the NetCentric Diplomacy database and that database required a password and he hacked his way past the password, then you would have an exceeds authorized access.

Or, if there was some information on the NetCentric Diplomacy database that he was authorized to go to, but other information that he needed additional authorization, a password or otherwise, and he exploited a problem with the program in order to trick the computer in getting him greater access, that would be exceeding authorized access.

But, it is not violating the terms of use. That is the key thing. When you look at, just from another standpoint of thinking, authorized access. That is like the trespass.

That is going some place that you are not permitted to go.

The use in this instance, and that is what the Government is really alleging, improper use.

They are saying that he had an improper purpose when he accessed information.

Not that he couldn’t access the information.

So, in every regard, in fact, the evidence would show that the soldiers within the S2 section were directed to go to the Net Centric Diplomacy database. So, it is not an issue of not having the ability to go there.

It was what is your intent when you went there, and that that is a misappropriation, or a violation of term of use, not exceeding your access issue.

Judge Lind

Still haven’t [missed word] the legislative history, other words unlike existing espionage laws prohibiting the theft and peddling of Government secrets to foreign agents, section [18 U.S.C.] 1030(a)(1) would require proof that the individual knowingly used a computer without authority, or in excess of authority for the purpose of obtaining classified information.

With this sense then is the use of the computer which is being prescribed, not the unauthorized possession to or control over the information itself.

So, if it is the use of the computer, that is being prescribe…I guess I am not having a problem now following how use of the computer…if you are using it for something that the computer says you are not suppose to use it for, it does within that paragraph of the legislative history.

Defense (Coombs)

Yeah, and I think when you look at the Nosal case and there they went through the legislative history, they make it clear that what Congress is trying to prevent here is basically an anti-hacking, so trespass.

So, the use here, or the access here is the going to an area that you don’t have authorization.

So, that is the use of the access that the statute is addressing.

Do you have authorization to go there?

If so, then you are guilty if you do something improper with that information.

That may be another criminal offense you have committed, but it is the use of the computer.

And, in this case the use of computer being do you have the authorization from an access standpoint.

Yes, your Honor.

ALL RISE

Judge Lind

Please be seated. This Article 39(a) session is called to order. Let the record reflect all parties present when the Court last recessed, are again present in Court. Is the witness available via telephone?

Prosecution (Fein)

Catherine Brown

Alright, so…and just to develop a bit of a time line, and you correct me if I am wrong.

I know the Under Secretary told me at one point, he was working his way through it; and we just never asked that that we doing anything, whether we made a determination or whether it was one of those things that was overtaken by events, I don’t know.

Now, Ambassador Kennedy referenced something called a Chiefs of Mission review.

He indicated that the State Department, once it became aware of the potential release of diplomatic cables immediately asked the Chiefs of Mission at the affected post to review any of the purported State material. Is that something that you are aware of?

Catherine Brown

I am aware that he referenced, having asked Chiefs of Mission to review purported State Department documents that were thought to be included in a release of Defense Department documents.

I think that is what he…very early was…I think that is what he was referring to in his testimony.

Defense (Coombs)

Your standpoint of your experience…do you have any experience with the Chief of Mission review?

Catherine Brown

The…you mean the one that was referred to by the Under Secretary in his testimony?

Defense (Coombs)

You know that Ma’am…if that is the one you are familiar with or are you familiar at all with a Chiefs of Mission regarding the purported State material that was released?

Alright. So, lets just go back just a little bit from the actual damage assessment to the information that would have gone into the damage assessment.

The Chiefs of Mission review or their request to look at certain cables from their particular embassy, am I understanding this correctly, that the cables that were purportedly released from their particular embassy, they were asked to review and comment on?

Catherine Brown

Catherine Brown

I would expect that they did.

That is the director of the Office of Counterintelligence and Consular Support. He was the master assembler and drafter, but drafts were provided to him.

Well, as I mentioned earlier, there was another significant disclosure that occurred very soon after we sent the draft to the Under Secretary.

So, presumably some of those they may have already worried about thinking this might become public.

Others, perhaps they hadn’t yet focused on, I don’t know. This problem hasn’t gone away. The problem hasn’t gone away.

Today, you can imagine today some thing breaking in the press or with a foreign Government somewhere in the world and an Ambassador saying, “My life today as an Ambassador significantly hindered because of this WikiLeaks issue.” I don’t think it has ever ended. [laughs]

Defense (Coombs)

And, I guess I am asking from September 2011, when all the un-redacted cables were available online.

Since that time there has been occasional reporting from our embassies and consulates about issues arising because of that disclosure, because of all of the disclosures, and my understanding is that the director of our Office of Counterintelligence and Consular Support is attempting to make some notation of that reporting in some form so that if the Under Secretary were to say, “Could you update this draft?”

…[loudly and frustrated] and I told you yes, that there is NO subsequent direct version of that document. There is NO alternative. There is NO addendum to that document. There is NO supplement to that document.

All it would be, would be additional reporting cables that have not been…sort of raw reporting is what we might call it that has not been compiled, distilled, put into any kind of summary form that I am aware of.

Defense (Coombs)

Alright, so the 2011 damage assessment that identifies persons at risk or whatnot.

So, when the name became public, then you would know that the damage would be worse. But, lets say the named person says, “I want to stay where I am and see if I can survive this.”

And so that is what he wants to so, and then lets says six months later a year later he says, “Oh my goodness, and now I am finding that because my name is disclosed all these bad things are happening to me.”

Then the Persons at Risk function is going to kick in again, right? It is not like all of a sudden, everybody’s life is hunky-dory.

We will attempt to…it is my understanding that we will attempt to protect people who were endangered by these disclosures, regardless of whether they ask us to do that today or in year ago or a year from now.

But that is different from the process of writing that assessment, which attempts to take a lot of different reporting, and you know, put together into a single document.

Defense (Coombs)

So, to your knowledge Ma’am, do you know if there have been other reports addressing Persons and Risk since 2011?

Catherine Brown

I don’t know. I was only tangentially involved in the Persons at Risk Group. I don’t know if they did a report or just handled things on an individual basis.

Defense (Coombs)

So, from your position, and your knowledge other than the damage assessment from 2011, are you aware of any other reports or assessments from the Department of State regarding the diplomatic cables?

Catherine Brown

Well, I mean there are these Persons at Risk things, but I am just saying, I don’t know how they have been handled.

Well, I think they could probably tell you, how many people we have tried to resettle because of the disclosures.

They could probably, you know, do you call that a report? I don’t know.

Ma’am, with regards to the Motion to Compel Discovery, I don’t know if that would have the ability to take information from the various Department of State representatives, whether or not we need to address now the four subgroups within the Department of State.

And, if you look at Appellate Exhibit 97 and Appellate Exhibit 100…

Judge Lind

Hold on.

Defense (Coombs)

… [Appellate Exhibit ] 97 would be the Prosecution’s response to the Defense Motion to Compel Discovery No. 2.

Judge Lind

Alright.

Defense (Coombs)

And, if I could direct you Ma’am to page 14 on that.

Correct, Ma’am. And on page 14, you go to the last paragraph, starts off, “The prosecution respectfully requests the Court deny the defense request for any documents related to the Chiefs of Mission, the WikiLeaks Working Group, and the Mitigation Team, and the Department of State’s reporting to Congress in December 2010 for failure to provide specificity or an accurate basis for its request.”

Then if you go to, page five on Appellate Exhibit 100, it indicates that “the defense made”…this is the other sub paragraph:

“In 10 May 2012 the defense made a specific request for a specific entity under Williams for records from the Chiefs of Mission, WikiLeaks Working Group, Mitigation Team, and Department of State reporting to Congress. The prosecutions agrees with the defense, the prosecution will [missed word] this obligation, i.e. files that closely aligned entities under Williams. However, as stated above the processes is challenging and time consuming, and the prosecution continues to work with the Department of State to search Department of State records for Brady and [Rules for Court Martial] R.C.M. 701(a)(6) material, including the four subgroups.”

So, as far as the motion to compel discovery, it looks like the later opinion by the Government is that this material is discoverable. And, the Court, I would hazard to select…

Judge Lind

…well, the prosecution appears to be discoverable under Brady.

Defense (Coombs)

Correct. And, so for the Motion to Compel Discovery, I have two points then raised so then the Government’s due diligence obligation to go look at these reports and that is why we asked for information…for witnesses to come from the Department of State.

So, now, we know from Ms. Coffey that there are minutes and agenda reports from the Mitigation Team. We know from Ms. Bitter that there are Situation Reports that would put out bi-weekly by the WikiLeaks Working Group.

And, with regards to the Persons at Risk we know that there are some sort of informational memorandums put out along with a matrix to track individuals, along with some formal guidance as to what embassies apparently with Persons at Risk could and could not do or what their response should be.

We know from Ms. Brown now, that apparently this damage assessment we have that dates from 2011 is the latest, but apparently there is an individual who is keeping track of the possible impact since the 2011.

I am not clear whether that is part of the Department of State job duty title or personal avocation, but that would be an example of a record that could potentially contain Brady.

So, for all these we would ask that the Government would have the due diligence obligation to inspect these records at the Department of State for [Rules for Court Martial, R.C.M.] 701(a)(6) purposes.

With regards to our arguments under closely aligned agencies fall under 701(a)(2) then, we would rest on the reasoning of our normal argument, but that purpose if the Court does agree that the Department of State, due to its ongoing relationship with DoD [Department of Defense] and this issue and being closely aligned.

Its records should in fairness be considered within the prosecutor’s possession, custody, and control. Then we would asked that the prosecutor has the added obligation to review the records for material that is favorable to the defense.

Judge Lind

Okay. Thank you. Major Fein anything?

Prosecution (Fein)

Briefly, your Honor. Admit this Court, may I brief from the table?

Judge Lind

Yes.

Prosecution (Fein)

Your Honor, first and foremost, same as our previous response to the Motion to Compel Discovery.

The Department of State files are not within the military authorities, therefore, are not discoverable under [Rules for Court Martial, R.C.M.] 701(a)(2).

Your Honor, I am going to move up, [missed word] can hear.

Your Honor the Department of State files are not discoverable under [Rules for Court Martial, R.C.M.] 701(a)(2) and are not really in the possession, custody, or control of military authorities.

We do, as the defense pointed out within our written motion…we have determined that we are closely aligned for Williams purposes with the Department of State.

And these specific categories of documents including others that might exists, the prosecution will be searching for any Brady material and those additionally the Government would argue that aggravation evidence or aggravation confirmation that…that is not being intended to be used in for aggravation should not be included and would not be relevant or necessary, since the defense in a brief did say that there is an alternative [Rules for Court Martial, R.C.M.] 701(a)(2) or asking for production of under 703…in particular the United States argues that any information that would go towards…that would be aggravating in nature…that again…just to repeat that the Government does not intend to use or would not be discoverable, even relevant or necessary.

Judge Lind

Let me stop you there. All of those…I haven’t said, the defense just discussed the minutes and agenda from the Mitigation Team and situation reports by WikiLeaks Persons at Risk the raw data on impact…are there any witnesses that the Government is going to call from the Department of State?

Prosecution (Fein)

Yes, you Honor, but not necessarily on those topics. What the Government proposes your Honor to clarify this process is that at a minimum, if the Court is inclined to rule that [Rules for Court Martial, R.C.M.] 701(a)(2) does apply, or doesn’t apply and the Judge ruled that the information should be relevant and necessary, and be produced under [Rules for Court Martial, R.C.M.] 703, that under a minimum the documents be produced for the Court’s inspection under [Rules for Court Martial, R.C.M.] 703, after the prosecution has had a time to review them made that determination.

As was already stated on the record, the prosecutions has to review the documents to know if there is Brady material or whether it is aggravating or not. What is certain based off of the testimony we have heard in Court today with three witnesses, for instance form the Mitigation Team…the Mitigation Team was stood up, Ms. Coffey testified to based off an OMB [Executive Office of Management and Budget] directive to look at information security, information assurance, and information management.

Your Honor, that is not relevant at all to this court martial. They were looking at how to better improve their own systems, which wouldn’t go to impact and wouldn’t go to damage.

It wouldn’t go to any issue on the merits on whether Private First Class Manning did or did not commit these charged offenses or whether he did or did not cause harm on sentencing.

So, that is the first one your Honor. So, that would be for the meeting, agenda, and minutes of the Mitigation Team.

But I do know that you asked for whether we intend to use that aggravation, that wouldn’t be aggravating. That wouldn’t be mitigating.

It is completely irrelevant information. The prosecution argues, it’s also [missed word] Brady. As far as Persons at Risk, inherently in that title, we have heard from testimony from Ms. Bitter was that, that was for individuals who were at risk, that were harmed.

…Yes, your Honor…

Judge Lind

…to determine whether it is actually relevant and necessary?

Prosecution (Fein)

Yes, your Honor…the opportunity. The only reason I say opportunity, your Honor, is that the prosecution would look at it and say, “Yes. It is relevant and necessary.

We agree with the defense. Here you go.” But if it isn’t material that would not [missed word].

Judge Lind

Well, I guess I am confused on timing now.

When does the Government…when would the Government like me to make a rulings on these?

Prosecution (Fein)

The Government…well, first your Honor, the Government already said it is not relevant and necessary, nor does it fall under military authorities for [Rules for Court Martial, R.C.M.] 701(a)(2).

So, the Government already working with the Department of State to review the material for Brady. So, that is going to be happening as soon as possible…I mean, we have already told that it is ready for us to start looking at…we are just trying to doing it here now.

So, once we are able to start looking at it and then making the Brady determinations, we will have a better understanding of what information is there. So, we at least ask for these categories.

Once we look at the information then we will be better to present the information to the Court with a more concise argument, and be able to present to the Court it make the determination for whether it is relevant and necessary for production to the defense.

Judge Lind

Are you asking me to suspend by ruling on this issue until the next Article 39(a) session?

Prosecution (Fein)

[To defense.] Any objection?

Defense (Coombs)

Your Honor. Obviously we want to get the discovery so if the Government is indicating that that is the time they need to do it then obviously, that is the time they need to do it.

So, we don’t have any objection to them looking to obtain that information.

However, with regards to our request for these four sub groups, we have been making these requests for quite some time.

Obviously today, just with the benefit of having the Government, as the Court requested, to produce three witnesses, we now have additional detail from within those subgroups.

But, the fact that we have been asking for those groups has been something that has been ongoing for several months.

So, and the Government really should have been looking at this stuff a long time ago. But if they are indicating they need an additional 30 days, then obviously we want the discovery.

Judge Lind

Alright.

Defense (Coombs)

With regards to the…

Judge Lind

Before we get there, Major Fein, I will be [missed word] the additional 30 days. I would like the Government to draft an order for me to approve that.

Prosecution (Fein)

Yes, your Honor.

Judge Lind

Alright.

Prosecution (Fein)

I will have that by tomorrow.

Defense (Coombs)

With regards to the four groups, now that we have some additional information, based upon today’s testimony, capture the additional information to give the Government even more specificity as exactly what we are looking for.

But, it is important to note that this is just what we know under [Rules for Court Martial, R.C.M.] 701(a)(6) [missed word] (3).

Obviously, the Government still has an obligation of due diligence for Brady searching for closely aligned agencies under [missed word] 2, which you know, the defense can only know what it knows.

In this case, we found out additional information, so we will supplement our request with additional information.

But, the Government still needs to be looking through the Department of State for Brady information due to the fact that they are closely aligned. With regards to one of the other categories, It really wasn’t discussed today because none of the witnesses had detailed knowledge and that is the Congressional testimony by the Department of State.

For the record, counsel and I will also met in an [Rules for Court Martial] R.C.M. 802 conference briefly to discuss just logistics issues as the Court is aware.

The Court ruled earlier that as opposed to conducting [Rules for Court Martial] R.C.M telephonic 802 conferences, the Court will schedule additional Article 39(a) sessions in between the current structure that we have, and the parties and I have discussed that issue, and we set the next Article 39(a) session for 25 of June, that is a Monday, at 13:00, which is one o’clock in civilian parlance. Anything else that either side desires to add?

Correction: When this entry was originally transcribed and published Appellate Exhibit 131 was incorrectly identified as Appellate Exhibit 141. After the US Army released the document in June 2013 it was corrected to AE 131.