Transcript | US v Pfc. Manning, UPDATE Court ruling on proposed plea by substitution and exceptions, 11/29/12

  • posted November 29, 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.

UPDATE

A special note to the rights of the accused. Pfc. Manning has not pled anything. An accused has a right to know what crime(s) he is charged with and what punishment he can expect before pleading to anything. Further, the Court must ensure the accused understands what he is pleading to and that he understand what the maximum punishment would be.

When the time came for the defense to file their anticipated plea. Pfc. Manning proposed the following revised plea for the Court’s considerations. See a portion of court colloquy on November 7, 2012.

In that revised plea, Pfc. Manning proposed to the Court that he might plead ‘not guilty to’ the following specifications as charged on March 1, 2011.:

  • The Spec, Charge I
  • Specification 16, Charge II
  • Specification 1, 2, 3, 4, Charge III Article 92

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

Manning also proposed pleas by exceptions and substitutions Specifications 1 through 15 of Charge II, Article 134.

The Judge accepted the defense’s proposed pleas by exceptions and substitutions for eight specifications as proper lesser included offenses, and denied seven proposed pleas by exceptions and substitutions for seven specifications, ruling those seven improper pleas.

The Judge ruled that the proposed defense plea of guilt for lesser included offenses for Specifications 2, 3, 5, 7, 9, 10, and 15 of Charge II under Article 134 was proper. Defense proposed removing the clause (3) federal code violation for 18 USC 793(e).

Below represents their pled substitution or exception:

In that Private First Class E. Manning, U.S. Army, did, at or near [ALLEGED LOCATION] between on or about [ALLEGED DATE RANGE], having unauthorized possession of information relating to the national defense, to wit: [CHARGED INFORMATION], with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted, the said information, to a person not entitled to receive it, in violation of 18 U.S. Code Section 793(e), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

The Judge ruled that the proposed defense plea of guilt for lesser included offenses for Specifications 1 of Charge II as follows is improper because, ‘knowing WikiLeaks might publish…’ is not a subset of ‘wrongly’ and ‘wantonly’ and changes nature of the charged conduct:

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

The Judge ruled that the proposed defense plea of guilty for lesser included offenses for Specifications 4, 6, 8, and 12 of Charge II is improper because the Judge ruled that ‘removal from a T-SCIF for unauthorized purpose’ is not the pled element of ‘taking, purloining, or knowingly convert to his use or the use of another’ a clause (3) 18 USC 641 violation of Article 134.

In that Private First Class E. Manning, U.S. Army, did, at or near [ALLEGED LOCATION], between on or about [ALLEGED DATE RANGE], steal, purloin, or knowingly convert to his use or the use of another [removal from a T-SCIF for unauthorized purpose], a record or thing of value of the United States or of a department or agency thereof, to wit: [CHARGED INFORMATION AND ALLEGED VALUE], in violation of 18 U.S. Code Section 641, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

The Judge ruled that the proposed defense plea of guilty for lesser included offenses by striking the clause (3) federal violation of 1030(a)(1) for Specifications 13 and 14 of Charge II was not lesser included offenses of 1030(a)(1), regarding information requiring protection, as well as the proposed substitutions have an additional element. See update.

In that Private First Class E. Manning, US Army, did, at or near [ALLEGED LOCATION], between on or about [ALLEGED DATE RANGE], [See update. Defense according to a media inquiry with ‘legal expert’ ‘substituted the element of unauthorized computer use’ for ‘unauthorized possession’] having knowingly exceeded authorized access [on a Secret Internet Protocol Router Network computer, and by means of such conduct having obtained information that has been determined by the United States government pursuant to an Executive Order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, to wit: [CHARGED INFORMATION], willfully communicate , deliver, transmit, or cause to be communicated, delivered, or transmitted the said information, to a person not entitled to receive it, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation , in violation of 18 US Code Section 1030(a)(1), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

The Judge ruled that the proposed defense plea of guilty by substitution for Specifications 11 of Charge II, a 793(e) offense like Specifications 2, 3, 5, 7, 9, 10, and 15, was not a proper proposed plea because the substitution, namely the date of the offense pled in Specification 11, was not the date charged by the Convening Authority, and therefore not a proper plea. See Transcript | Oral argument for proposed plea by substitution and exceptions for Specification 11 for Charge II on November 28, 2012 for more information.

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

See also:

Handwritten Transcript from this morning:

This portion of transcript was taken by hand from the press pool at Fort Meade, Maryland on November 29, 2012. It, therefore, may contain omissions or errors.

Judge Lind: On 26 of October I [asked the parties] to address [two questions related to the revised plea. See this.]

(1) Is it a proper plea [the proper LIO (Lesser Included Offense)] or is it an amendment that required the Convening Authority’s approval? US v. Morton (2010);

(2) Assuming plea is acceptable [to the] the Convening Authority what is the maximum punishment? US v. Beaty (2011)

…

Court considered…[parties required] no oral arguments… [The Court had oral argument on 28 November 2012 regarding] … Specification 11 of Charge II [There was also a mention of Specification 10 of Charge II in the oral argument].

1.) Accused plea to [with exceptions and substitutions] to Specifications 2, 3, 5, 7, 9, 10, 15… are lesser included offenses under 18 USC 793(e).

…if provident.

[This next portion related to the Court’s 19 July 2012 Ruling Regarding Maximum Lesser Included Offenses.

Article 134 in the [Manual for Court Martial]… …conduct mens rea not essentially same residual element for that offense… …Army Regulation 380-5, of Article 92, 2 years, dishonorable discharge, forfeiture of pay…each offense with a total of 14 years for 7 Specifications.

2.) Court rules that the [accused plea by exceptions and substitutions in regards to] Specification 11 of Charge II… is an irregular plea. …RCM 917(b)

[Rule 917. Motion for a finding of not guilty

(b) Form of motion. The motion shall specifically indicate wherein the evidence is insufficient.]

…is not a lesser included offense. US v. Diaz.

…accused is free to alternative [plea.] …without the approval of the Convening Authority… …remaining not referred to this Court. US v. Morton (2010)

…this Court will not accept those pleas… …by the accused. Does not… US v. Allen

a.) …the proposed plea [by exceptions and substitutions for] Specification 1 of Charge II is not a lesser included offense…

…’knowing’ WikiLeaks would publish is not a subset of ‘wrongly’ and ‘wantonly’… changes nature of conduct…

b.) …the plea [by exceptions and substitutions for] Specification 4, 6, 8, 12 are not lesser included offenses… …included essence of 18 USC 641 of Article 134

“taking, purloining, [missed one. …is not the pled element] “removal for unauthorized purpose” . In addition they contain an additional element…

c.) …plea [by exceptions and substitutions] for Specification 13 and 14 are not lesser included offenses… 1030(a)(1) …to information to require protection… …proposed substitutions have an additional element…

d.) …Specification 11 of Charge II… …[See oral arguments for 28 November 2012.] …[Government charges act took place] 1 November 2009 to 8 January 2010.

[The Government alleges another act on ] 10 to 12 April 2010.

[The pled act is] not referred.

…plea to Specification 2, 3, 5, 7, 9, 10, and 15 of Charge II and …Specification 5 of Charge III

Proposed plea reduction to Private E1; forfeiture of pay; 16 years; dishonorable discharge.

So ordered 28 November 2012.

Updates

This information was confirmed with from ‘legal expert’ at Fort Meade organized by the Military District of Washington notice of anticipated plea and forum revised plea:

Corrected from a media inquiry on 1030(a)(1) charges. “The common theme between the 793(e) and the 1030(a)(1) offenses of Specification 13 and 14 of Charge II, Article 134 is that the proposed pleas dropped the federal statutory elements leaving only that the unauthorized communication of the documents was prejudicial to good order and discipline and service-discrediting.” (November 29, 2012)

Added the substitution from a media inquiry on 1030(a)(1) charges. “Military Judge found that the proposed please to Specification 13 and 14 of Charge II [which is under Article 134] were not acceptable because it substituted the element of unauthorized computer use…and in its place put a new element of unauthorized possession, which [the Judge ruled] substantially changed the nature of the misconduct.” (November 30, 2012)