Criminal Elements and Definitions for Stealing 5 U.S.G. databases for Iraq War Logs, Afghan War Diary, GTMO Files, Cablegate, US-I GAL
- posted July 8, 2013
The Uniform Code of Military Justice (U.C.M.J.) is the law applicable to all military members and is passed by Congress.
Article 134 is reserved for crimes that do not exist under the regular punitive Articles of the U.C.M.J. and which involve “disorders and neglects to the prejudice of good order and discipline in the armed forces”; or “conduct of a nature to bring discredit upon the armed forces”; and/or finally, include violations of federal law, which in the this case are five offenses of 18 U.S.C. 641 or ‘Stealing U.S. Government Property.’
Manning pled not guilty to all five specifications of 641 for “stealing, purloining, or knowingly converting” five government databases containing records commonly known as the Iraq War Logs, the Afghan War Diary, the GTMO Files, Cablegate, and the Global Email Address List from the U.S. Forces- Iraq SharePoint Exchange Server.
Manning faces ten years maximum punishment if convicted of each 641 offense for the databases (Iraq War Logs, the Afghan War Diary, the GTMO Files, NetCentric Diplomacy, and the Global email Address List). Manning faces five years maximum punishment if convicted of the lesser included offense for “stealing, purloining, or knowingly converting” the Department of State NetCentric Diplomacy database. The lesser included offense would be if military prosecutors prove a value of the NCD is $500.00 or less.
In order to find Manning guilty of ‘stealing, purloining, or knowingly converting” the five databases, the presiding military judge (Manning elected to be tried by military judge alone) must be convinced by legal and competent evidence beyond reasonable doubt that:
Element (1) At or near Contingency Operating Station Hammer, Iraq,
Iraq War Logs between on or about 31 December 2009 and on or about 5 January 2010 the accused did steal, purloin, or knowingly convert records to his own use or someone else’s use, to wit: the Combined Information Data Network Exchange Iraq database containing more than 380,000 records; Afghan War Diary between on or about 31 December 2009 and on or about 8- January 2010; the accused did steal, purloin, or knowingly convert records to his own use or someone else’s use, to wit: the Combined Information Network Exchange Afghanistan database containing more than 90,000 records; GTMO Files on or about 8 March 2010; the accused did steal, purloin, or knowingly convert records to his own use or someone else’s use, to wit: a United States Southern Command database; Cablegate between on or about 28 March 2010 and on or about 27 May 2010; the accused did steal, purloin, or knowingly convert records to his own use or someone else’s use, to wit: the Department of State Net-Centric Diplomacy database containing more than 250,000 records; Global Address List between on or about 11 May 2010 and on or about 27 May 2010; the accused did steal, purloin, or knowingly convert records to his own use or someone else’s use, to wit: the United States Forces — Iraq Microsoft Outlook/SharePoint Exchange Server global address list;
Element (2) that the records belonged to the U.S. or a department or agency, thereof;
Element (3) that the accused acted knowingly and willfully and with the intent to deprive the government of the use and benefit of the records; and
Element (4) that the records were of a value greater than $1,000;
If the value of each is proven to be $1,000 or less and the presiding military judge finds proof of the 4 outstanding elements in the U.S.G.’s case, Manning could be convicted of the lesser included offense of 18 U.S.C. 641.
Judge Lind took judicial notice that at the time 18 U.S.C. Section 641 was in existence on the dates alleged in the specification. So, Element (5) is already proven.
Element (6) that under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
To ‘steal’ means to wrongfully take money or property belonging to the United States government with the intent to deprive the owner of the use and benefit temporarily or permanently.
‘Wrongful’ means without legal justification or excuse.
To ‘purloin’ is to steal with the element of stealth, that is, to take by stealth the ‘property of the United States government with intent to deprive the owner of the use and benefit of the property temporarily or permanently.
A ‘taking’ doesn’t have to be any particular type of movement or carrying away. Any appreciable and intentional ‘change in the property’s location is a taking, even if the property isn’t removed from the owner’s premises. The accused did not have to know the United States government owned the property at the time of the taking.
A ‘conversion’ may be consummated without any intent to permanently deprive the United States of the use and benefit of the property and without wrongful taking, where the initial possession by the converter was entirely lawful.
Conversion may include the misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one’s custody for limited use. Not all misuse of government property is a conversion. The misuse must seriously and substantially interfere with the United State’s government’s property rights.
‘Value’ means the greater of
(1) the face, par, or market value, or
(2) the price, whether wholesale or retail. A ‘thing of value’ can be tangible or intangible property. Government information, although intangible is a species of property and a thing of value.
The market value of stolen goods may be determined by reference to a price that is commanded in the market place whether that market place is legal or illegal. In other words, market value is measured by the price a willing buyer will pay a willing seller.
The illegal market place is also known as a ‘thieves market.’
The U.S. Government asserted that it would proffer evidence at trial for the value of each of the five charged databases by a “thieves market”.
Judge Lind stated that instructions for ‘thieves market’ would be given “if evidence is presented on the value alleged to be stolen, purloined, or knowingly converted by the” accused in a thieves market.”
‘Cost price’ means the cost of producing or creating the specific property allegedly stolen, purloined, or knowingly converted.
An act is done ‘willfully’ if it is done voluntarily and intentionally with the specific intent to do something the law forbids, that is, with a bad purpose to disobey or disregard the law.
An act is done ‘knowingly’ if it is done voluntarily and intentionally and not because of mistake or accident or other innocent reason.
Prejudice to Good Order and Discipline & Service Discrediting
Conduct that is prejudicial to good order and discipline is conduct which causes a reasonably direct and obvious injury to good order and discipline. ‘Service discrediting conduct’ is conduct which tends to harm the reputation of the service or lower it in public esteem.
With respect to ‘prejudice to good order and discipline,’ the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as prejudicial in some indirect or remote sense; however, only those acts in which the prejudice is reasonably direct and palpable is punishable under Article 134.
With respect to ‘service discrediting,’ the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as service discrediting in some indirect or remote sense; however, only those acts which would have a tendency to bring the service into disrepute or which tend to lower it in public esteem are punishable under Article 134.
Under some circumstances, the accused’s conduct may not be prejudicial to good order and discipline but, nonetheless, may be service discrediting. Likewise, depending on the circumstances, the accused’s conduct can be prejudicial to good order and discipline but not be service discrediting.
NetCentric Diplomacy Database & Circumstantial Evidence of Motive of Foreign Adversaries & Potential Damage
Judge Lind ruled that circumstantial evidence explaining the nature of charged classified documents and potential damage is “potentially relevant” during trial “on the merits” for the value element in the charge for “stealing, purloining, or knowingly converting” the U.S. Department of State NetCentric Diplomacy Database.
Military prosecutors also asserted that they would provide further evidence of the “content and context of the charged information and the motives and resources of foreign adversaries” for the U.S. Department of State NetCentric Diplomacy Database..
Judge Lind ruled that if military prosecutors established “proper foundation” for such evidence and if “such evidence is “brief, limited, and focused, evidence of the immediate context and circumstances surrounding the charge information is permissible for the value element in the charge for “stealing, purloining, or knowingly converting” the U.S. Department of State NetCentric Diplomacy Database alone.
On May 21, Lind stated in court that Department of State witnesses, James Moore, Deputy Assistant Secretary of the Bureau of South and Central Asian Affairs; Dean Pittman, PDAS Bureau of International Organizational Affairs; Stephen Seche, Former US AMB to Yemen in the Bureau of Near East Affairs; Don Yamamoto, Assistant Secretary of State for African Affairs; Marie Yovanovitch, Assistant Secretary of State for European and Eurasian Affairs; and Joseph Yun, Assistant Secretary for East Asian & Pacific Affairs would testified regarding “stealing, purloining, knowingly converting” the NetCentric Diplomacy database. This is likely the content of their classified stipulations.
It is unclear if AMB David Pearce, Acting SRAP testified to “stealing, purloining, or knowingly converting” the NetCentric Diplomacy database. John Feeley, PDAS Bureau of Western Hemisphere Affairs was categorized as a “pre-sentencing witness”.
Elements and definitions sourced from the Court’s Draft Instructions in November 26, 2012.